Further Definition of “Swap Dealer,” “Security-Based Swap Dealer,” “Major Swap Participant,” “Major Security-Based Swap Participant” and “Eligible Contract Participant”, 30596-30764 [2012-10562]

Download as PDF 30596 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations COMMODITY FUTURES TRADING COMMISSION 17 CFR Part 1 RIN 3038–AD06 SECURITIES AND EXCHANGE COMMISSION 17 CFR Part 240 [Release No. 34–66868; File No. S7–39–10] RIN 3235–AK65 Further Definition of ‘‘Swap Dealer,’’ ‘‘Security-Based Swap Dealer,’’ ‘‘Major Swap Participant,’’ ‘‘Major SecurityBased Swap Participant’’ and ‘‘Eligible Contract Participant’’ Commodity Futures Trading Commission; Securities and Exchange Commission. ACTION: Joint final rule; joint interim final rule; interpretations. AGENCY: In accordance with the DoddFrank Wall Street Reform and Consumer Protection Act of 2010 (‘‘Dodd-Frank Act’’), the Commodity Futures Trading Commission (‘‘CFTC’’) and the Securities and Exchange Commission (‘‘SEC’’) (collectively, the ‘‘Commissions’’), in consultation with the Board of Governors of the Federal Reserve System (‘‘Board’’), are adopting new rules and interpretive guidance under the Commodity Exchange Act (‘‘CEA’’), and the Securities Exchange Act of 1934 (‘‘Exchange Act’’), to further define the terms ‘‘swap dealer,’’ ‘‘security-based swap dealer,’’ ‘‘major swap participant,’’ ‘‘major securitybased swap participant,’’ and ‘‘eligible contract participant.’’ DATES: Effective date. The effective date for this joint final rule and joint interim final rule: July 23, 2012, except for CFTC regulations at 17 CFR 1.3(m)(5) and (6), which are effective December 31, 2012. Comment date. The comment period for the interim final rule (CFTC regulation at 17 CFR 1.3(ggg)(6)(iii)) will close July 23, 2012. Compliance date. Compliance with the element of the CFTC regulation at 17 CFR 1.3(m)(8)(iii) requiring that a commodity pool be formed by a registered CPO shall be required with respect to a commodity pool formed on or after December 31, 2012 for any person seeking to rely on such regulation; compliance with such element shall not be required with respect to a commodity pool formed prior to December 31, 2012. FOR FURTHER INFORMATION CONTACT: mstockstill on DSK4VPTVN1PROD with RULES2 SUMMARY: VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 CFTC: Jeffrey P. Burns, Assistant General Counsel, at 202- 418–5101, jburns@cftc.gov, Mark Fajfar, Assistant General Counsel, at 202–418–6636, mfajfar@cftc.gov, Julian E. Hammar, Assistant General Counsel, at 202–418– 5118, jhammar@cftc.gov, or David E. Aron, Counsel, at 202–418–6621, daron@cftc.gov, Office of General Counsel; Gary Barnett, Director, at 202– 418–5977, gbarnett@cftc.gov, or Frank Fisanich, Deputy Director, at 202–418– 5949, ffisanich@cftc.gov, Division of Swap Dealer and Intermediary Oversight,Commodity Futures Trading Commission, Three Lafayette Centre, 1155 21st Street NW., Washington, DC 20581; SEC: Joshua Kans, Senior Special Counsel, Richard Grant, Special Counsel, or Richard Gabbert, Attorney Advisor, at 202–551–5550, Division of Trading and Markets, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–7010. SUPPLEMENTARY INFORMATION: I. Background On July 21, 2010, President Obama signed the Dodd-Frank Act into law.1 Title VII of the Dodd-Frank Act established a statutory framework to reduce risk, increase transparency, and promote market integrity within the financial system by, among other things: (i) providing for the registration and regulation of swap dealers and major swap participants; (ii) imposing clearing and trade execution requirements on standardized derivative products; (iii) creating recordkeeping and real-time reporting regimes; and (iv) enhancing the Commissions’ rulemaking and enforcement authorities with respect to all registered entities and intermediaries subject to the Commissions’ oversight. The Dodd-Frank Act particularly provides that the CFTC will regulate ‘‘swaps,’’ and that the SEC will regulate ‘‘security-based swaps.’’ The DoddFrank Act also adds definitions of the terms ‘‘swap dealer,’’ ‘‘security-based swap dealer,’’ ‘‘major swap participant,’’ ‘‘major security-based swap participant’’ and ‘‘eligible contract participant’’ to the CEA and Exchange Act.2 Section 712(d)(1) of the Dodd-Frank Act further directs the CFTC and the SEC, in consultation with the Board, jointly to 1 See Dodd-Frank Wall Street Reform and Consumer Protection Act, Public Law 111–203, 124 Stat. 1376 (2010). The text of the Dodd-Frank Act may be accessed at https://www.cftc.gov/ LawRegulation/OTCDERIVATIVES/index.htm. 2 See Dodd-Frank Act sections 721 and 761. Sections 721(b)(2) and 761(b)(2) also provide that the CFTC and SEC may by rule further define any other term included in an amendment made by Title VII to the CEA or the Exchange Act, respectively. PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 further define those terms, among others.3 In December 2010, the Commissions proposed rules and interpretations to further define the meaning of the terms ‘‘swap dealer,’’ ‘‘security-based swap dealer,’’ ‘‘major swap participant,’’ ‘‘major security-based swap participant,’’ and ‘‘eligible contract participant.’’ 4 The Commissions received approximately 968 written comments in response to the Proposing Release.5 In addition, the Staffs of the Commissions participated in approximately 114 meetings with market participants and other members of the public about the Proposing Release,6 and the Commissions held a 3 In addition, section 712(d)(1) directs the CFTC and SEC, in consultation with the Board, jointly to further define the terms ‘‘swap,’’ ‘‘security-based swap,’’ and ‘‘security-based swap agreement.’’ These further definitions are the subject of a separate rulemaking by the Commissions. See CFTC and SEC, Notice of Proposed Joint Rulemaking, Further Definition of ‘‘Swap,’’ ‘‘Security-Based Swap,’’ and ‘‘Security-Based Swap Agreement’’; Mixed Swaps; Security-Based Swap Agreement Recordkeeping, 76 FR 29818 (May 23, 2011) (‘‘Product Definitions Proposal’’). Section 712(d)(2)(A), in turn, provides that the Commissions shall jointly adopt such other rules regarding the definitions set forth in section 712(d)(1) as they ‘‘determine are necessary and appropriate, in the public interest, and for the protection of investors.’’ In addition, section 721(c) of the Dodd-Frank Act requires the CFTC to adopt a rule to further define the terms ‘‘swap dealer,’’ ‘‘major swap participant,’’ and ‘‘eligible contract participant’’ for the purpose of including transactions and entities that have been structured to evade Title VII. Also, section 761(b) of the Dodd-Frank Act permits the SEC to adopt a rule to further define the terms ‘‘securitybased swap dealer,’’ ‘‘major security-based swap participant,’’ and ‘‘eligible contract participant,’’ with regard to security-based swaps, for the purpose of including transactions and entities that have been structured to evade Title VII. 4 See CFTC and SEC, Notice of Proposed Joint Rulemaking: Further Definition of ‘‘Swap Dealer,’’ ‘‘Security-Based Swap Dealer,’’ ‘‘Major Swap Participant,’’ ‘‘Major Security-Based Swap Participant’’ and ‘‘Eligible Contract Participant,’’ Securities Exchange Act Release No. 63452, 75 FR 80174 (Dec. 21, 2010) (‘‘Proposing Release’’). Prior to issuing the Proposing Release, the Commissions issued a joint Advance Notice of Proposed Rulemaking (‘‘ANPRM’’) requesting public comment regarding the definitions of the terms ‘‘swap,’’ ‘‘security-based swap,’’ ‘‘securitybased swap agreement,’’ ‘‘swap dealer,’’ ‘‘securitybased swap dealer,’’ ‘‘major swap participant,’’ ‘‘major security-based swap participant,’’ and ‘‘eligible contract participant.’’ See CFTC and SEC, Advance Notice of Proposed Joint Rulemaking: Definitions Contained in Title VII of Dodd-Frank Wall Street Reform and Consumer Protection Act, Securities Exchange Act Release No. 62717, 75 FR 51429 (Aug. 20, 2010). The Proposing Release and these final rules both reflect comments received in response to the ANPRM. 5 Comment letters received in response to the Proposing Release may be found on the Commissions’ Web sites at https:// comments.cftc.gov/PublicComments/ CommentList.aspx?id=933 and at https:// www.sec.gov/comments/s7-39-10/s73910.shtml. 6 Summaries of these staff meetings may be found on the Commissions’ Web sites at https:// E:\FR\FM\23MYR2.SGM 23MYR2 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations Joint Public Roundtable on the proposed dealer and major participant definitions.7 After considering the comments received, the Commissions are adopting final rules and interpretations to further define these terms. II. Definitions of ‘‘Swap Dealer’’ and ‘‘Security-Based Swap Dealer’’ mstockstill on DSK4VPTVN1PROD with RULES2 The Dodd-Frank Act definitions of the terms ‘‘swap dealer’’ and ‘‘securitybased swap dealer’’ focus on whether a person engages in particular types of activities involving swaps or securitybased swaps.8 Persons that meet either of those definitions are subject to statutory requirements related to, among other things, registration, margin, capital and business conduct.9 The CEA and Exchange Act definitions in general encompass persons that engage in any of the following types of activity: (i) Holding oneself out as a dealer in swaps or security-based swaps, (ii) making a market in swaps or security-based swaps, www.cftc.gov/LawRegulation/DoddFrankAct/ Rulemakings/DF_2_Definitions/index.htm and https://www.sec.gov/comments/s7-39-10/ s73910.shtml#meetings. 7 A transcript of the roundtable discussion and public comments received with respect to the roundtable may be found on the CFTC’s Web site at https://www.cftc.gov/PressRoom/Events/ opaevent_cftcsecstaff061611. 8 See section 721 of the Dodd-Frank Act (adding Section 1a(49) of the CEA, 7 U.S.C. 1a(49), to define ‘‘swap dealer’’) and section 761 of the Dodd-Frank Act (adding Section 3(a)(71) of the Exchange Act, 15 U.S.C. 78c(a)(71), to define ‘‘security-based swap dealer’’). 9 The Dodd-Frank Act excludes from the Exchange Act definition of ‘‘dealer’’ persons who engage in security-based swaps with eligible contract participants. See section 3(a)(5) of the Exchange Act, 15 U.S.C. 78c(a)(5), as amended by section 761(a)(1) of the Dodd-Frank Act. The Dodd-Frank Act does not include comparable amendments for persons who act as brokers in swaps and security-based swaps. Because securitybased swaps, as defined in section 3(a)(68) of the Exchange Act, are included in the Exchange Act section 3(a)(10) definition of ‘‘security,’’ persons who act as brokers in connection with securitybased swaps must, absent an exception or exemption, register with the SEC as a broker pursuant to Exchange Act section 15(a), and comply with the Exchange Act’s requirements applicable to brokers. In mid-2011, the SEC issued temporary exemptions under the Exchange Act in connection with the revision of the ‘‘security’’ definition to encompass security-based swaps. Among other aspects, these temporary exemptions extended to certain broker activities involving security-based swaps. See ‘‘Order Granting Temporary Exemptions under the Securities Exchange Act of 1934 in Connection with the Pending Revision of the Definition of ‘‘Security’’ to Encompass SecurityBased Swaps, and Request for Comment,’’ Securities Exchange Act Release No. 64795 (Jul. 1, 2011), 76 FR 39927, 39939 (Jul. 7, 2011) (addressing availability of exemption to registration requirement for securities brokers). VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 (iii) regularly entering into swaps or security-based swaps with counterparties as an ordinary course of business for one’s own account, or (iv) engaging in any activity causing oneself to be commonly known in the trade as a dealer or market maker in swaps or security-based swaps.10 These dealer activities are enumerated in the CEA and Exchange Act in the disjunctive, in that a person that engages in any one of these activities is a swap dealer under the CEA or security-based swap dealer under the Exchange Act, even if such person does not engage in one or more of the other identified activities. At the same time, the statutory dealer definitions provide exceptions for a person that enters into swaps or security-based swaps for the person’s own account, either individually or in a fiduciary capacity, but not as a part of a ‘‘regular business.’’ 11 The Dodd-Frank Act also instructs the Commissions to exempt from designation as a dealer a person that ‘‘engages in a de minimis quantity of [swap or security-based swap] dealing in connection with transactions with or on behalf of its customers.’’ 12 Moreover, the definition of ‘‘swap dealer’’ (but not the definition of ‘‘security-based swap dealer’’) provides that an insured depository institution is not to be considered a swap dealer ‘‘to the extent it offers to enter into a swap with a customer in connection with originating a loan with that customer.’’ 13 The statutory definitions further provide that a person may be designated as a dealer for one or more types, classes or categories of swaps or security-based swaps, or activities without being designated a dealer for other types, classes or categories or activities.14 In the Proposing Release, the Commissions proposed rules to identify the activity that would cause a person to be a dealer,15 to implement the exception for de minimis dealing activity,16 to implement the exception from the swap dealer definition in 10 See CEA section 1a(49)(A), 7 U.S.C. 1a(49)(A); Exchange Act section 3(a)(71)(A), 15 U.S.C. 78c(a)(71)(A). 11 See CEA section 1a(49)(C), 7 U.S.C. 1a(49)(C); Exchange Act section 3(a)(71)(C), 15 U.S.C. 78c(a)(71)(C). 12 See CEA section 1a(49)(D), 7 U.S.C. 1a(49)(D); Exchange Act section 3(a)(71)(D), 15 U.S.C. 78c(a)(71)(D). 13 See CEA section 1a(49)(A), 7 U.S.C. 1a(49)(A). 14 See CEA section 1a(49)(B), 7 U.S.C. 1a(49)(B); Exchange Act section 3(a)(71)(B), 15 U.S.C. 78c(a)(71)(B). 15 See proposed CFTC Regulation § 1.3(ggg)(1); proposed Exchange Act rule 3a71–1(a), (b). 16 See proposed CFTC Regulation § 1.3(ggg)(4); proposed Exchange Act rule 3a71–2. PO 00000 Frm 00003 Fmt 4701 Sfmt 4700 30597 connection with the origination of loans by insured depository institutions,17 and to provide for the limited purpose designation of dealers.18 The release also set forth proposed interpretive guidance related to the definitions. After considering the comments received, the Commissions are adopting final rules and interpretations to further define the terms ‘‘swap dealer’’ and ‘‘security-based swap dealer.’’ In this Adopting Release, we particularly address: (i) The general analysis for identifying dealing activity involving swaps and security-based swaps; (ii) the exclusion from the ‘‘swap dealer’’ definition in connection with the origination of loans by insured depository institutions; (iii) the application of the dealer analysis to inter-affiliate swaps and security-based swaps; (iv) the application of the de minimis exception from the dealer definitions; and (v) the limited designation of swap dealers and security-based swap dealers. A. General Considerations for the Dealer Analysis 1. Proposed Approach The proposed rules to define the activities that would lead a person to be a ‘‘swap dealer’’ and ‘‘security-based swap dealer’’ were based closely on the corresponding language of the statutory definitions.19 The Proposing Release further noted that the Dodd-Frank Act defined the terms ‘‘swap dealer’’ and ‘‘security-based swap dealer’’ in a functional manner, and stated that those statutory definitions should not be interpreted in a constrained, overly technical or rigid manner, particularly given the diversity of the swap and security-based swap markets. The Proposing Release also identified potential distinguishing characteristics of swap dealers and security-based swap dealers based on the functional role that dealers fulfill in the swap and securitybased swap markets, such as: dealers tend to accommodate demand from other parties; dealers generally are available to enter into swaps or securitybased swaps to facilitate other parties’ interest; dealers tend not to request that other parties propose the terms of swaps or security-based swaps, but instead tend to enter into those instruments on their own standard terms or on terms they arrange in response to other parties’ interest; and dealers tend to be able to arrange customized terms for 17 See proposed CFTC Regulation § 1.3(ggg)(5). proposed CFTC Regulation § 1.3(ggg)(3); proposed Exchange Act rule 3a71–1(c). 19 See CFTC Regulation § 1.3(ggg); Exchange Act rule 3a71–1(a), (b). 18 See E:\FR\FM\23MYR2.SGM 23MYR2 30598 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations swaps or security-based swaps upon request, or to create new types of swaps or security-based swaps at the dealer’s own initiative.20 The proposal recognized that the principles for identifying dealing activity involving swaps can differ from principles for identifying dealing activity involving security-based swaps, in part due to differences in how those instruments are used.21 a. ‘‘Swap Dealer’’ Activity Consistent with the statutory definition, the proposed rule stated that the term ‘‘swap dealer’’ includes a person that ‘‘regularly enters into swaps with counterparties as an ordinary course of business for its own account,’’ but also that ‘‘the term swap dealer does not include a person that enters into swaps for such person’s own account, either individually or in a fiduciary capacity, but not as a part of a regular business.’’ The Proposing Release stated that these two provisions should be read in combination with each other, and explained that the difference between the two provisions is whether or not the person enters into swaps as a part of, or as an ordinary course of, a ‘‘regular business.’’ Thus, the Proposing Release equated the phrases ‘‘ordinary course of business’’ and ‘‘regular business.’’ The Proposing Release also stated that persons who enter into swaps as a part of a ‘‘regular business’’ are those persons whose function is to accommodate demand for swaps from other parties and enter into swaps in response to interest expressed by other parties. Such persons would be swap dealers.22 Conversely, the Proposing Release said that persons who do not fulfill this function in connection with swaps should not be deemed to enter into swaps as part of a ‘‘regular business,’’ and thus would not likely be swap dealers.23 In addition, the Proposing Release noted that the nature of swaps precludes importing concepts used to identify dealers in other areas. The Proposing Release explained that because swaps are typically not bought and sold, concepts such as whether a person buys and sells swaps, makes a two-sided market in swaps, or trades within a bid/ offer spread cannot necessarily be used mstockstill on DSK4VPTVN1PROD with RULES2 20 Proposing Release, 75 FR at 80176. 21 Id. 22 In addition, the Proposing Release explained that (in general, and not specifically limited to the provisions relating to entering into swaps as part of a ‘‘regular business’’) the proposed swap dealer definition does not depend on whether a person’s activity as a swap dealer is the person’s sole or predominant business (other than through the de minimis exception discussed below). 23 See Proposing Release, 75 FR at 80177. VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 to determine if the person is a swap dealer, even if such concepts are useful in determining whether a person is a dealer in other financial instruments.24 The Proposing Release further stated that swap dealers can be identified through their relationships with counterparties, explaining that swap dealers tend to enter into swaps with more counterparties than do nondealers, and in some markets, nondealers tend to constitute a large portion of swap dealers’ counterparties. In contrast, the Proposing Release said, non-dealers tend to enter into swaps with swap dealers more often than with other non-dealers. The Proposing Release noted that it is likely that swap dealers are involved in most or all significant parts of the swap markets.25 The Proposing Release concluded that this functional approach would identify as swap dealers those persons whose function is to serve as the points of connection in the swap markets. Thus, requiring registration and compliance with the requirements of the DoddFrank Act by such persons would thereby reduce risk and enhance operational standards and fair dealing in those markets.26 The Proposing Release also noted that the swap markets are diverse and encompass a wide variety of situations in which parties enter into swaps with each other, and invited comment as to what aspects of the parties’ activities in particular situations should, or should not, be considered swap dealing activities. Specifically, the Proposing Release invited comment regarding persons who enter into swaps: (i) As aggregators; (ii) as part of their participation in physical markets; or (iii) in connection with the generation and transmission of electricity.27 First, regarding aggregators, the Proposing Release noted that some persons, including certain cooperatives, enter into swaps with other parties in order to aggregate the swap positions of the other parties into a size that would be more amenable to entering into swaps in the larger swap market. The Proposing Release explained that, for example, certain cooperatives enter into swaps with smaller businesses because the smaller business cannot establish a commodity position large enough to be traded on a swap or futures market, or large enough to be of interest to larger financial institutions. The Proposing Release said that while such persons engage in activities that are similar in 24 See id. at 80176–77. 25 See id. at 80177. 26 See id. 27 See id. at 80183–84. PO 00000 Frm 00004 Fmt 4701 Sfmt 4700 many respects to those of a swap dealer, it may be that the swap dealing activities of these aggregators would not exceed the de minimis threshold, and therefore they would not be swap dealers. The CFTC requested comment as to how the de minimis threshold would apply to such persons, and in general on the application of the swap dealer definition to this activity. The Proposing Release also noted that the CFTC was engaged in a separate rulemaking pursuant to section 723(c)(3)(B) of the Dodd-Frank Act regarding swaps in agricultural commodities, and requested comment on the application of the swap dealer definition to dealers, including potentially agricultural cooperatives, that limit their dealing activity primarily to swaps in agricultural commodities.28 Second, the Proposing Release noted that the markets in physical commodities such as oil, natural gas, chemicals and metals have developed highly customized transactions, some of which would be encompassed by the statutory definition of the term ‘‘swap,’’ and that some participants in these markets engage in swap dealing activities that are above the proposed de minimis threshold. The CFTC invited comment as to any different or additional factors that should be considered in applying the swap dealer definition to participants in these markets. Third, the Proposing Release noted a number of complexities that arise when applying the swap dealer definition in connection with the generation and transmission of electricity. In particular, the Proposing Release noted that additional complexity results because electricity is generated, transmitted and used on a continuous, real-time basis, and because the number and variety of participants in the electricity market is very large, and some electricity services are provided as a public good rather than for profit. The CFTC invited comment as to any different or additional factors that should be considered in applying the swap dealer definition to participants in the generation and transmission of electricity. Specifically, the CFTC invited comment on whether there are special considerations, including without limitation special considerations arising from section 28 After publication of the Proposing Release, the CFTC adopted a final rule on agricultural swaps under which swaps in agricultural commodities will be permitted to transact subject to the same rules as all other swaps. See Agricultural Swaps; Final Rule, 76 FR 49291 (Aug. 10, 2011). E:\FR\FM\23MYR2.SGM 23MYR2 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations 201(f) of the Federal Power Act,29 related to not-for-profit power systems such as rural electric cooperatives and entities operating as political subdivisions of a state and on the applicability of the exemptive authority in section 722(f) of the Dodd-Frank Act to address those considerations. b. ‘‘Security-Based Swap Dealer’’ Activity The Proposing Release noted the parallels between the definition of ‘‘security-based swap dealer’’ and the definition of ‘‘dealer’’ under the Exchange Act,30 as well as the fact that security-based swaps may be used to hedge risks associated with owning certain types of securities or to gain economic exposure akin to ownership of certain types of securities. As a result, the Proposing Release took the view that the same factors that are relevant to determining whether a person is a ‘‘dealer’’ under the Exchange Act also are generally relevant to the analysis of whether a person is a security-based swap dealer. The Proposing Release also addressed the relevance of the ‘‘dealertrader’’ distinction for identifying dealing activity involving security-based swaps,31 while recognizing that certain concepts associated with the dealertrader distinction—particularly concepts involving ‘‘turnover of inventory’’ and ‘‘regular place of business’’—appeared potentially less applicable to the security-based swap dealer definition. In addition, the Proposing Release noted that under the dealer-trader distinction, we would expect that entities that use securitybased swaps to hedge business risks, absent other activities, likely would not be dealers.32 mstockstill on DSK4VPTVN1PROD with RULES2 29 16 U.S.C. 824(f). 30 See Exchange Act sections 3(a)(5)(A), (B), 15 U.S.C. 78c(a)(5)(A), (B), as amended by Section 761(a)(1) of the Dodd-Frank Act. 31 The Proposing Release referred to the fact that the SEC previously has noted that the dealer-trader distinction: ‘‘recognizes that dealers normally have a regular clientele, hold themselves out as buying or selling securities at a regular place of business, have a regular turnover of inventory (or participate in the sale or distribution of new issues, such as by acting as an underwriter), and generally provide liquidity services in transactions with investors (or, in the case of dealers who are market makers, for other professionals).’’ Proposing Release, 75 FR at 80177 (citing Securities Exchange Act Release No. 47364 (Feb. 13, 2003) (footnotes omitted)). The Proposing Release further noted that other nonexclusive factors that are relevant for distinguishing between dealers and non-dealers can include receipt of customer property and the furnishing of incidental advice in connection with transactions. See id. 32 See Proposing Release, 75 FR at 80177–78. VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 c. Additional Principles Common to Both Definitions i. ‘‘Hold Themselves Out’’ and ‘‘Commonly Known in the Trade’’ Tests The Proposing Release identified the following non-exclusive list of factors as potentially indicating that a person meets the ‘‘hold themselves out’’ and ‘‘commonly known in the trade’’ tests of the statutory dealer definitions: • Contacting potential counterparties to solicit interest in swaps or securitybased swaps; • Developing new types of swaps or security-based swaps (which may include financial products that contain swaps or security-based swaps) and informing potential counterparties of the availability of such swaps or security-based swaps and a willingness to enter into such swaps or securitybased swaps with the potential counterparties; • Membership in a swap association in a category reserved for dealers; • Providing marketing materials (such as a Web site) that describe the types of swaps or security-based swaps that one is willing to enter into with other parties; or • Generally expressing a willingness to offer or provide a range of financial products that would include swaps or security-based swaps.33 The Proposing Release further stated that the test for being ‘‘commonly known in the trade’’ as a swap dealer or security-based swap dealer may appropriately reflect, among other factors, the perspective of persons with substantial experience with and knowledge of the swap and securitybased swap markets (regardless of whether a particular entity is known as a dealer by persons without that experience or knowledge). The Proposing Release also stated that holding oneself out as a security-based swap dealer likely would encompass a person who is a dealer in another type of security entering into a security-based swap with a customer, as well as a person expressing its availability to enter into security-based swaps, regardless of the direction of the transaction or across a broad spectrum of risks.34 30599 making in the equities market, these indicia may not be appropriate in the swap and security-based swap markets. The proposal also noted that nothing in the statutory text or legislative history suggested the intent to impute a ‘‘continuous’’ activity requirement to the dealer definitions.35 iii. No Predominance Test The Proposing Release further addressed whether a person should be a dealer only if that activity is the person’s sole or predominant business, and took the view that such an approach was not consistent with the statutory definition. The Proposing Release rejected this as an unworkable test of dealer status because many parties that commonly are acknowledged as dealers also engage in other businesses that outweigh their swap or security-based swap dealing business in terms of transaction volume or other measures.36 iv. Application to New Types of Wwaps and New Activities The Proposing Release noted that the Commissions intended to apply the dealer definitions flexibly when the development of innovative business models is accompanied by new types of dealer activity, following a facts-andcircumstances approach.37 2. Commenters’ Views Numerous commenters addressed the proposed rules and interpretations in connection with the ‘‘swap dealer’’ and ‘‘security-based swap dealer’’ definitions. Several commenters addressed principles that are common to the two dealer definitions, while a number of commenters also addressed interpretations in the Proposing Release that were specific to the ‘‘swap dealer’’ definition. a. ‘‘Hold Themselves Out’’ and ‘‘Commonly Known in the Trade’’ Tests Some commenters expressed the view that the persons that hold themselves out as or are commonly known as dealers are easy to identify.38 In addressing the ‘‘hold themselves out’’ and ‘‘commonly known’’ criteria of the dealer definitions, commenters placed particular focus on whether only dealers engage in the activities cited by the ii. Market Making In addressing the statutory definitions’ ‘‘making a market’’ test, the Proposing Release noted that while continuous two-sided quotations and a willingness to buy and sell a security are important indicators of market 33 See 34 See PO 00000 id. at 80178. id. Frm 00005 Fmt 4701 Sfmt 4700 35 See id. id. at 80178–79. 37 See id. at 80179. 38 See transcript of Joint CFTC–SEC Staff Roundtable Discussion on Proposed Dealer and Major Participant Definitions Under Dodd-Frank Act, June 16, 2011 (‘‘Roundtable Transcript’’) at 22– 23 (remarks of Ron Filler, New York Law School), 50–51 (remarks of Ron Oppenheimer, Working Group of Commercial Energy Firms), 215 (remarks of Bella Sanevich, NISA Investment Advisors LLC). 36 See E:\FR\FM\23MYR2.SGM 23MYR2 30600 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES2 Proposing Release, or whether those activities are common both to dealers and to other users of swaps and security-based swaps. Commenters particularly stated that end users contact potential counterparties,39 develop new types of swaps or securitybased swaps,40 and propose terms or language for swap or security-based swap agreements.41 One commenter further stated that identifying dealing activity based on whether a person develops new types of swaps or proposes swap terms would discourage innovation and the free negotiation of swaps.42 Some commenters stated that merely responding to a request for proposals or quotations should not, in itself, constitute dealing.43 Commenters also criticized the Proposing Release’s suggestion that criteria for identifying dealing activity include membership in a dealer category of a trade association,44 as well as providing marketing materials and offering a range of financial products.45 Commenters also argued for more objective criteria for identifying persons ‘‘commonly known’’ as dealers.46 Conversely, one commenter said that three particular activities cited in the Proposing Release—membership in a swap association category reserved for dealers, providing marketing materials and expressing a willingness to offer a range of financial products—are indicative of holding oneself out as a dealer or being commonly known in the trade as a dealer, and should be codified in the final rule.47 Another commenter suggested other factors, such as having 39 See letters from the Financial Services Roundtable (‘‘FSR’’) dated February 22, 2011 (‘‘FSR I’’), the International Swap Dealers Association (‘‘ISDA’’) dated February 22, 2011 (‘‘ISDA I’’) and the Midsize Bank Coalition of America (‘‘Midsize Banks’’). 40 See letters from the Committee on Capital Markets Regulation (‘‘CCMR’’) dated February 22, 2011 (‘‘CCMR I’’), FSR I, ISDA I and Midsize Banks. 41 See letters from the BG Americas & Global LNG (‘‘BG LNG’’) dated February 22, 2011 (‘‘BG LNG I’’), CCMR I, EDF Trading North America, LLC (‘‘EDF Trading’’) and The Gavilon Group, LLC (‘‘Gavilon’’) dated February 21, 2011 (‘‘Gavilon II’’). 42 See letter from EDF Trading. 43 See meeting with American Electric Power, Calpine Corporation (‘‘Calpine’’), Constellation, DC Energy LLC (‘‘DC Energy’’), Edison International (‘‘Edison Int’l’’), Exelon Corp., GenOn, Southern Company, Edison Electric Institute (‘‘EEI’’) and Electric Power Supply Association (‘‘ESPA’’) (collectively ‘‘Electric Companies’’) on April 13, 2011. 44 See letter from ISDA I and joint letter from National Corn Growers Association (‘‘NCGA’’) and Natural Gas Supply Association (‘‘NGSA’’) (‘‘NCGA/NGSA’’) dated February 22, 2011 (‘‘NCGA/ NGSA I’’). 45 See letter from ISDA I. 46 See letters from ISDA I and Peabody Energy Corporation (‘‘Peabody’’). 47 See letter from FSR I. VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 a derivatives sales team, that should be treated as indicators of dealer activity.48 Commenters also expressed the view that this aspect of the dealer definition should focus on whether a person solicits expressions of interest in swaps from a range of market participants,49 and that end users of swaps can actively seek out and negotiate swaps without necessarily being swap dealers.50 b. Market Making Several commenters generally requested that the Commissions provide more guidance as to which activities constitute making a market in swaps or security-based swaps.51 Commenters also described various activities as indicating, or not indicating, market making activity. For example, two commenters expressed the view that market making is characterized by entering into swaps on one side of the market and then establishing offsetting positions on the other side of the market.52 Other commenters equated market making to providing liquidity by regularly quoting bid and offer prices for swaps, and standing ready to enter into swaps.53 One commenter stated that market making activity is indicated by a person consistently presenting itself as willing to take either side of a trade.54 Two commenters said that market makers receive tangible benefits (such as reduced trading fees) in return for the obligation to transact when liquidity is required.55 In contrast, one commenter said the proposal correctly did not limit market making to consistently quoting a twosided market, because to do so would insert a loophole into the definition.56 Some commenters expressed the view that mere active participation in a market or entering into swaps on both sides of a market does not necessarily constitute market making.57 Others said that occasionally quoting prices on both 48 See meeting with Vitol, Inc. (‘‘Vitol’’) on February 16, 2011. 49 See letter from Midsize Banks. 50 See letter from EDF Trading. 51 See joint letter from American Benefits Council and the Committee on Investment of Employee Benefits Assets (‘‘ABC/CIEBA’’) and letters from FSR I. 52 See letters from DC Energy and FSR I. 53 See letters from Edison Int’l, NextEra Energy Resources, LLC (‘‘NextEra’’) dated February 22, 2011 (‘‘NextEra I’’) and Vitol, and joint letter from American Electric Power, Edison Int’l, Exelon Corp., and Southern Company (‘‘Utility Group’’). 54 See letter from ISDA I. 55 See joint letter from EEI and EPSA (‘‘EEI/ EPSA’’) and letter from Vitol. 56 See letter from Americans for Financial Reform (‘‘AFR’’). 57 See letters from ABC/CIEBA, Managed Funds Association (‘‘MFA’’) dated February 22, 2011 (‘‘MFA I’’), and Vitol. PO 00000 Frm 00006 Fmt 4701 Sfmt 4700 sides of the market is not market making when done to obtain information about the market or to mask one’s view of the market.58 One commenter stated that futures commission merchants (‘‘FCMs’’) and broker-dealers that facilitate customers’ entering into swaps are not necessarily market makers.59 Other commenters urged the Commissions to reject the view that market making requires continuous activity.60 A number of commenters addressed the issue of how the dealer definitions should treat swaps or security-based swaps entered into on a trading platform such as a designated contract market (‘‘DCM’’), national securities exchange, swap execution facility (‘‘SEF’’), or security-based SEF (collectively referred to herein as ‘‘exchanges’’).61 Several stated that entering into swaps or security-based swaps on exchanges should not be considered in determining if a person is a dealer.62 Some of these commenters emphasized the fact that parties would not know the identity of the counterparty to the swap executed on an exchange (i.e., such swaps are ‘‘anonymous’’),63 while other commenters said that such swaps do not constitute ‘‘accommodating demand’’ for swaps or ‘‘facilitating interest’’ in swaps.64 Another commenter said that future means of executing swaps on exchanges are likely to be diverse, and it is premature to draw conclusions 58 See letters from NextEra Iand Vitol. letter from Newedge USA LLC (‘‘Newedge’’); see also Roundtable Transcript at 39 (remarks of Eric Chern, Chicago Trading Company). 60 See letters from American Federation of State, County and Municipal Employees (‘‘AFSCME’’), and FSR I. 61 While some of these commenters specially addressed this issue in the context of whether a person is a market maker in swaps, others more generally addressed the issue in terms of whether a person is a dealer. For clarity, all of those comments are being addressed in the market maker context. 62 See letters from EEI/EPSA, International Energy Credit Association (‘‘IECA–Credit’’) dated February 22, 2011 (‘‘IECA–Credit I’’), and NextEra I, joint letter from Shell Trading (US) Company and Shell Energy North America (US), L.P. (‘‘Shell Trading’’) dated February 22, 2011 (‘‘Shell Trading I’’), and joint letter from Allston Trading, LLC, Atlantic Trading USA LLC, Bluefin Trading LLC, Chopper Trading LLC, DRW Holdings, LLC, Eagle Seven, LLC, Endeavor Trading, LLC, Geneva Trading USA, LLC, GETCO, Hard Eight Futures, LLC, HTG Capital Partners, IMC Financial Markets, Infinium Capital Management LLC, Kottke Associates, LLC, Liger Investments Limited, Marquette Partners, LP, Nico Holdings LLC, Optiver US, Quantlab Financial, LLC, RGM Advisors, LLC, Tibra Trading America LLC, Traditum Group LLC, WH Trading and XR Trading LLC (‘‘Traders Coalition’’). 63 See letters from Shell Trading I and Traders Coalition. 64 See letters from EEI/EPSA, IECA–Credit I, and NextEra I. For further discussion of this issue, see parts II.A.4 and II.A.5 below. 59 See E:\FR\FM\23MYR2.SGM 23MYR2 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations about how they should be treated in the dealer definitions.65 Two commenters asserted that firms that provide liquidity in cleared and exchange-executed swaps by actively participating in the market provide heterogeneity among liquidity providers and thereby disperse risk, and further stated that to regulate such persons as swap dealers subject to increased capital requirements would discourage their participation in the market and increase risk.66 One commenter expressed the view that the statutory definition uses dealing and market making interchangeably, and suggested that the analysis of whether a person acts as a dealer should be subsumed within the analysis of whether it acts as a market maker.67 c. Exception for Activities Not Part of a ‘‘Regular Business’’ mstockstill on DSK4VPTVN1PROD with RULES2 Several commenters addressed the exception from the dealer definitions for swap or security-based swap activities that are not part of a ‘‘regular business.’’ Some commenters supported the Commissions’ proposed interpretation in the context of the ‘‘swap dealer’’ definition and stated that this interpretation should be codified in the text of the final rule.68 Many commenters said that the activity of entering into swaps or security-based swaps should not be deemed to be a ‘‘regular business,’’ and thus not indicative of dealing activity, when the person’s use of swaps or security-based swaps are ancillary to, or in connection with, a separate non-swap business that is the person’s primary business.69 Some commenters making this point said that when the person’s primary business relates to physical commodities, the person’s use of swaps relating to those commodities does not constitute a ‘‘regular business.’’ 70 Other commenters stated that where a person enters into swaps to serve its own 65 See letter from Metropolitan Life Insurance Company (‘‘MetLife’’). 66 See letters from Newedge and Traders Coalition; Roundtable Transcript at 39 (remarks of Eric Chern, Chicago Trading Company). 67 See letter from ISDA I. 68 See letters from FSR I, MFA I and Midsize Banks. 69 See Roundtable Transcript at 88 (remarks of Steve Walton, Bank of Oklahoma). 70 See letters from Atmos Energy Corporation (‘‘Atmos Energy’’), Dominion Resources, Inc. (‘‘Dominion Resources’’), EDF Trading, Edison Int’l, EEI/EPSA, Gavilon II, Hess Corporation and its affiliates (‘‘Hess’’), Mississippi Public Utility Staff, NextEra I, National Milk Producers Federation (‘‘NMPF’’), Shell Trading I, Utility Group and Working Group of Commercial Energy Firms (‘‘WGCEF’’) on the swap dealer definition dated February 22, 2011 (‘‘WGCEF I’’), and meeting with Bunge on February 23, 2011. VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 business needs, as opposed to serving the business needs of the counterparty, the person’s use of swaps does not constitute a ‘‘regular business.’’ 71 Other commenters said that the use of swaps to hedge the commercial risks of a business does not constitute a ‘‘regular business’’ of entering into swaps.72 Some commenters also suggested that the ‘‘regular business’’ exclusion should be interpreted to mean ‘‘regular swap dealing business’’ or ‘‘regular securitybased swap dealing business’’ to prevent the dealer definitions from capturing hedgers.73 On the other hand, two commenters said that the proposed interpretation was correct in the view that the test of whether a person has a ‘‘regular business’’ of entering into swaps does not necessarily depend on whether a person’s swap activities are a predominant activity, because such an approach would allow a person to engage in a significant level of swap dealing activity without registering as a swap dealer simply because the person also has substantial activities in a nonswap business or businesses.74 Other commenters suggested that the types of swap activities that a person engages in are relevant to determining whether the person has a ‘‘regular business’’ of entering into swaps. One commenter stated that a person has a ‘‘regular business’’ of entering into swaps when the person has a primary business of accommodating demand or facilitating interest in swaps,75 while others similarly emphasized that a ‘‘regular business’’ of entering into swaps is characterized by financial intermediation activities.76 One 71 See letters from BT Pension Scheme Management Limited (‘‘BTPS’’), EDF Trading, EEI/ EPSA and Vitol. 72 See letters from American Petroleum Institute (‘‘API’’) dated February 22, 2011 (‘‘API I’’), Calpine, Coalition of Physical Energy Companies (‘‘COPE’’) dated February 22, 2011 (‘‘COPE I’’), Dominion Resources, EDF Trading, Edison Int’l and Peabody; see also Roundtable Transcript at 45 (remarks of Ed Prosser, Gavilon) and letter from Church Alliance. In addition, three commenters said that the interpretation of the provisions relating to a ‘‘regular business’’ in the Proposing Release is correct, because it will exclude from the definition of swap dealer those persons using swaps to hedge commercial risk. See letters from Air Transport Association of America, Inc. (‘‘ATAA’’), IECA– Credit I and joint letter from Petroleum Marketers Association of America and New England Fuel Institute. 73 See letters from Church Alliance and Peabody. 74 See letters from AFR and Better Markets, Inc. (‘‘Better Markets’’) dated February 22, 2011 (‘‘Better Markets I’’). 75 See letter from IECA–Credit I. 76 See letter from NextEra I and Shell Trading I. Another commenter disagreed with this approach, however, saying that a person who enters into swaps as an intermediary between smaller customers and larger financial institutions is not PO 00000 Frm 00007 Fmt 4701 Sfmt 4700 30601 commenter took the view that a person that enters into swaps primarily with financial intermediaries does not have a ‘‘regular business’’ of entering into swaps.77 Some commenters said that the final rule should clarify the point at which a person’s episodic or occasional swap activities become a ‘‘regular business’’ of entering into swaps.78 Others stated that the fact that a person enters into swaps frequently or with a large number of counterparties does not necessarily mean that the person has a ‘‘regular business’’ of entering into swaps.79 Commenters proposed specific tests for determining if a person has a ‘‘regular business’’ of entering into swaps. One commenter said the determination should look to whether a person enters into swaps to accommodate demand from other parties and to profit from a bid/ask spread on swaps (as opposed to swaps that are substitutes for physical transactions or positions and used by at least one party to hedge commercial risk), and consider specifically the volume, revenues and profits of such activities, the person’s value at risk (VaR) and exposure from such activities, and its resources devoted to such activities.80 Another commenter said that the determination should be based on the nature of the person’s business, the person’s business purpose for using swaps, and the person’s method of executing swap transactions (e.g., a person whose business primarily relates to physical commodities, who uses swaps to hedge commercial risk, and who executes swaps on an exchange would be less likely to have a ‘‘regular business’’ of entering into swaps).81 One commenter argued that the ‘‘regular business’’ exception should apply to all four of the dealer tests—not only the test for persons that regularly enters into swaps or security-based swaps as an ‘‘ordinary course of business’’—and further argued that the ‘‘regular business’’ exception should be linked to a ‘‘two-way market’’ base entering into swaps for its ‘‘own account’’ and therefore is not a swap dealer, but rather would be an FCM or introducing broker. See letter from MFX Solutions, Inc. (‘‘MFX’’) dated February 22, 2011 (‘‘MFX I’’). 77 See letter from Traders Coalition. 78 See letters from BG LNG I and WGCEF I. 79 See letters from NCGA/NGSA I and Vitol. One of these commenters asked that the final rule clarify that simply because a person engages in swap activity exceeding the thresholds for the de minimis exception from the swap dealer definition does not necessarily mean that the person is engaged in a ‘‘regular business’’ of swap dealing. See letter from Vitol. 80 See letter from NextEra I; see also letter from Hess (proposing similar criteria). 81 See letter from Shell Trading I. E:\FR\FM\23MYR2.SGM 23MYR2 30602 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations requirement to avoid commercial hedgers being encompassed by the dealer definitions.82 d. Other Dealer Issues Commenters also addressed other issues in the Proposing Release, including: (i) Whether Congress intended that there be implicit preconditions to dealer status; (ii) whether the concepts of ‘‘accommodating demand’’ for swaps or security-based swaps or ‘‘facilitating interest’’ in swaps are useful in identifying dealers; and (iii) whether the interpretation of the dealer definitions should depend on pre-defined, objective criteria. i. Preconditions Several commenters said that the proposal is overbroad and would encompass persons that Congress did not intend to regulate as dealers.83 Comments in this vein said that the statutory definition should be interpreted to require that persons meet certain criteria or engage in certain activity, not explicitly stated in the statute, to be covered by the swap dealer definition. For instance, some commenters said that a dealer is a person who enters into swaps or security-based swaps on either side of the market and who profits from fees for doing so, or from the spread between the terms of swaps on either side of the market.84 Other commenters made a similar point, saying that swap dealers are those persons that intermediate between swap users on either side of the market.85 82 See letter from ISDA dated I. e.g., letters from BG LNG I, EDF Trading, ISDA I, NCGA/NGSA dated February 17, 2012 (‘‘NCGA/NGSA II’’) and WGCEF I, and joint letter from American Farm Bureau Federation, American Soybean Association, National Association of Wheat Growers, National Cattlemen’s Beef Association, National Corn Growers Association, National Council of Farmer Cooperatives, National Grain and Feed Association, National Milk Producers Federation and National Pork Producers Council (‘‘Farmers’ Associations’’). 84 See letters from COPE I, Edison Int’l, Hess, ISDA I, Shell Trading I, Utility Group, Vitol and WGCEF I; see also Roundtable Transcript at 43–45 (remarks of Ed Prosser, Gavilon). However, other commenters questioned whether profiting from a bid/ask spread is a relevant test of dealer status, and emphasized that dealers are those persons who take risk by entering into swaps or security-based swaps on both sides of the market. See Roundtable Transcript at 21, 56 (remarks of Richard Ostrander, Morgan Stanley) and 43 (remarks of Russ Wasson, National Rural Electric Cooperative Association (‘‘NRECA’’)). Another commenter pointed out that it could be difficult to determine how a person is profiting from entering into swaps. See Roundtable Transcript at 42 (remarks of Michael Masters, Better Markets). 85 See letters from API I, BG LNG I and NCGA/ NGSA II. mstockstill on DSK4VPTVN1PROD with RULES2 83 See, VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 The commenters were not all in agreement on this, however. Several commenters (including some of those that said swap dealers enter into swaps on both sides of the market) also stated that there are a variety of situations in which a person’s activity of contemporaneously entering into swaps on both sides of the market is not indicative of dealing activity.86 One commenter said that it would not be appropriate to require that a person enter into swaps or security-based swaps on both sides of the market as a litmus test for dealer status, because to do so would create loopholes in the definition.87 Two commenters also supported rejection of any interpretation that would limit the dealer definitions to encompass only those entities that solely or predominately act as dealers.88 In addition, commenters were particularly divided as to whether acting as an intermediary always is indicative of swap dealing, as some commenters said that a person is not a swap dealer when it simply stands between two parties by entering into offsetting swaps with each party.89 ii. ‘‘Accommodating Demand’’ and ‘‘Facilitating Interest’’ A number of commenters addressed the Proposing Release’s view that a tendency to accommodate demand for swaps and a general availability to enter into swaps to facilitate other parties’ interest in swaps (referred to here as ‘‘accommodating demand’’ and ‘‘facilitating interest’’) are characteristic of swap dealers. Some commenters stated that accommodating demand and facilitating interest would not be 86 The examples cited were: entering into swaps on either side of a market depending on a firm’s commercial purpose for entering each particular swap (see letters from the Industrial Energy Consumers of America (‘‘IECA–Consumers’’) and WGCEF I, and letter from the Not-For-Profit Electric End User Coalition (‘‘NFPEEU’’), consisting of NRECA, American Public Power Association (‘‘APPA’’) and Large Public Power Council (‘‘LPPC’’); see also Roundtable Transcript at 44 (remarks of Ed Prosser, Gavilon)); entering into swaps on both sides of an illiquid market for purposes of price discovery or to elicit bids and offers from other market participants (see letters from Hess, Vitol and WGCEF I); and entering into swaps on both sides of the market as part of an investment strategy (see letter from ABC/CIEBA). 87 See letter from AFR. 88 See letters from AFR and Better Markets I. 89 See letters from BOKF, National Association (‘‘BOK’’) dated January 13, 2012 (‘‘BOK V’’), MFX I, Newedge and Northland Energy Trading LLC (‘‘Northland Energy’’); see also Roundtable Transcript at 48 (remarks of John Nicholas, Newedge). One commenter queried whether the final rule should clarify whether a customer relationship between the parties to a swap is necessary in order for the swap to be relevant in determining whether either of the parties is a swap dealer. See letter from Representative Scott Desjarlais (‘‘Rep. Desjarlais’’). PO 00000 Frm 00008 Fmt 4701 Sfmt 4700 effective factors to identify swap dealers, particularly in bilateral negotiations where it is difficult to say which party is accommodating demand for swaps.90 Other commenters said the activities of accommodating demand or facilitating interest are indicative of swap dealing only in certain circumstances, such as when they are not related to a person’s commodity business,91 or when done with the purpose of serving the needs of the other party to the swap.92 Some commenters argued that the statement in the Proposing Release that swap dealers are likely involved in most or all significant parts of the swap markets is incorrect in the market for energy swaps. There, the commenters said, persons can find counterparties for swaps without the intermediation of a swap dealer, and swaps entered into directly by two end users are more frequent.93 Other commenters, though, said that the proposal’s focus on accommodating demand and facilitating interest strikes the right balance and that the proposed approach is generally correct.94 Another commenter did not object to including accommodating demand and facilitating risk as factors in the definition, but said that those factors should be applied flexibly.95 iii. Application of Objective Criteria, and Additional Factors Some commenters, specifically addressing the CFTC’s proposed interpretive approach to the ‘‘swap dealer’’ definition, said that the final rule should set out objective criteria that market participants could use to determine whether or not they are covered by the definition and therefore required to register as swap dealers.96 90 See letters from NextEra I and Peabody and meeting with Vitol on February 15, 2011. 91 See letter from Shell Trading I. 92 See letters from IECA–Credit I, National Association of Insurance Commissioners (‘‘NAIC’’), Vitol and WGCEF I. One of these commenters also said that entering into a bespoke swap with a registered swap dealer, in which the swap dealer lays off risk, should not be viewed as accommodating demand or facilitating interest. See letter from Vitol. 93 See letter from BG LNG I, NCGA/NGSA I, NFPEEU, NRG Energy, Inc. (‘‘NRG Energy’’) and WGCEF I and meeting with Vitol on February 16, 2011. 94 See letters from AFR and MFX I. 95 See letter from National Grain and Feed Association (‘‘NGFA’’) dated February 22, 2011 (‘‘NGFA I’’). 96 See letters from BG LNG I, EEI/EPSA, Peabody, Rep. Desjarlais and Utility Group. Some commenters said that the CFTC’s interpretive approach to the swap dealer definition should be codified in the text of the final rule. See letters from Alternative Investment Management Association Limited (‘‘AIMA’’) dated February 22, 2011 (‘‘AIMA I’’) and COPE I. E:\FR\FM\23MYR2.SGM 23MYR2 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES2 Others focused especially on statements in the Proposing Release to the effect that swap dealers are those persons who ‘‘tend to’’ engage in certain activities, and that persons who engage in certain activities are ‘‘likely’’ to be swap dealers, as being overly subjective and difficult to interpret.97 Certain commenters suggested specific objective criteria to use to identify swap dealers. One commenter said that swap dealing activity is characterized by more frequent use of swaps; having substantial staff and technological resources devoted to swaps; a larger portion of revenue and profit being derived from swap activity; and owning fewer physical assets related to the type of swaps entered into.98 Another commenter said that to identify swap dealers, the CFTC should compare a person’s revenue or profits generated by swap activity to its overall revenue or profits; compare a person’s total business volume to the volume, VaR and exposure associated with the swap activity; compare a person’s total business resources to the resources devoted to swap activity; and consider ownership or control of physical assets in the specific market or region to which the person’s swap activity is tied.99 More generally, some commenters supported codification of more concrete tests in connection with the dealer definitions.100 However, other commenters said that the use of bright line rules to determine whether a person is a dealer would be inappropriate given the dynamic nature of the swap and security-based swap markets. These commenters supported a facts and circumstances approach to the dealer definition as a better approach.101 One commenter also raised issues about the sources of information that may be considered as part of a dealer determination.102 e. Application of Exchange Act ‘‘Dealer-Trader’’ distinction 97 See letters from BG LNG I, Chesapeake Energy Corporation (‘‘Chesapeake Energy’’), COPE I, ISDA I, Vitol and WGCEF I. Some commenters focused on particular aspects of the swap dealer definition as requiring further detail, such as, for example, what it means to be ‘‘commonly known in the trade’’ as a swap dealer (see letter from Peabody) and the definition of market making (see letters from Midsize Banks and Peabody). 98 See letter from Hess. 99 See letter from NextEra I. 100 See, e.g., letters from EEI/EPSA, FSR I, ISDA I, NextEra I and WGCEF I. 101 See letters from Better Markets I, Chris Barnard (‘‘Barnard’’) and Prof. Michael Greenberger, University of Maryland School of Law (‘‘Greenberger’’). 102 See letter from ISDA I (stating that sources of information considered by the Commissions in determining dealer status should be revealed to the entity being evaluated). VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 i. Security-Based Swap Dealer Definition A number of commenters supported the proposed use of the dealer-trader distinction under the Exchange Act to interpret the ‘‘security-based swap dealer’’ definition.103 Two commenters, however, specifically opposed use of the distinction in the context of securitybased swaps, arguing that use of the distinction would create confusion or would be inconsistent with the goal of improved transparency.104 ii. Swap Dealer Definition Some commenters said that the CFTC should apply the dealer-trader distinction as it has been interpreted with respect to the definition of ‘‘dealer’’ under the Exchange Act to identify swap dealers.105 Some commenters said that the applicable interpretations under the Exchange Act mean that swaps a person uses for proprietary trading (including for speculative purposes) should not be considered in determining if the person is a swap dealer because dealers enter into transactions in order to profit from spreads or fees regardless of their view of the market for the underlying item, whereas traders enter into transactions in order to take a view on the direction of the market or to obtain exposure to movements in the price of the underlying item.106 Two commenters said that if the CFTC applied the distinction, traders should be subject to potential registration as major swap participants, and dealers should be subject to regulation as swap dealers.107 Commenters acknowledged differences between the market for swaps and the market for securities, but said that the 103 See, e.g., letters from Coalition for Derivatives End-Users (‘‘CDEU’’), CCMR I, ISDA I and MetLife. 104 See letters from AFR and AFSCME. 105 Some of these commenters said that, since some provisions in the statutory swap dealer definition are similar to the definition of a ‘‘dealer’’ under the Exchange Act, Congress intended that the two definitions would be applied in the same way. See letters from API I, BG LNG I, CDEU, IECA– Consumers and WGCEF I. Others said that the CFTC should apply these interpretations because they have been effectively applied for a long time in the context of securities. See letters from CCMR I and MFA I. 106 See letters from Gavilon II, and Next Era I, and meetings with Electric Companies on April 13, 2011 and WGCEF on April 28, 2011. Another commenter said the interpretations mean that dealers and traders can be distinguished by their activities: dealers hold themselves out as buying and selling on a regular basis, derive income from providing services in the chain of distribution, and profit from price spreads, while traders do not provide services or extend credit but, rather, profit from changes in the market value of underlying items. See letter from API I. 107 See letters from EDF Trading and IECA– Consumers. PO 00000 Frm 00009 Fmt 4701 Sfmt 4700 30603 Exchange Act interpretations are still relevant.108 On the other hand, some commenters agreed with the CFTC’s view not to apply Exchange Act interpretations to the definition of the term ‘‘swap dealer.’’ These commenters said that it is appropriate not to apply the interpretations under the Exchange Act to identify persons that meet the swap dealer definition under the CEA.109 e. Application to Particular Swap Markets i. Aggregators Certain commenters addressed persons who enter into swaps as aggregators, with most of those commenters discussing agricultural cooperatives. Commenters said that agricultural cooperatives that hedge their own risks or the risks of their members regarding agricultural commodities should be excluded from the swap dealer definition because Congress did not intend to treat agricultural cooperatives as swap dealers and because agricultural cooperatives are in effect an extension of their members.110 Some commenters said that the agricultural cooperatives’ use of swaps allows their members to hedge risks when the members’ transactions are too small for (or otherwise not qualified for) the futures markets.111 Some commenters said that an exclusion from the swap dealer definition also should be available to private companies that serve as aggregators for swaps in agricultural commodities or otherwise offer swaps 108 See letters from API I, Gavilon I and IECA– Consumers. 109 See letters from AFR and AFSCME; see also joint meeting with AFR and Better Markets on March 17, 2011 (dealer-trader distinction not helpful in identifying swap dealers because the transparency and operational robustness of the swap market is much lower than in the securities market). One commenter said the precedents should be applied only by the SEC to identify securitybased swap dealers. See letter from NAIC. 110 See letters from Dairy Farmers of America (‘‘DFA’’), Growmark, Land O’Lakes, Inc. (‘‘Land O’Lakes’’) dated February 22, 2011 (‘‘Land O’Lakes II’’), National Council of Farmer Cooperatives (‘‘NCFC’’) dated February 22, 2011 (‘‘NCFC I’’) and NMPF. One commenter also said that a subsidiary of an agricultural cooperative that enters into swaps with its parent cooperative, and the members of the parent cooperative, should be excluded from the swap dealer definition for the same reason. See meeting with Agrivisor. Another commenter said that an agricultural cooperative’s swaps with farmers and other persons for risk management should be disregarded in determining if the cooperative is a swap dealer so long as the swaps relate to the marketing function of the cooperative, even if the swaps are not with members of the cooperative. See letter from NMPF. 111 See letters from DFA and Growmark. E:\FR\FM\23MYR2.SGM 23MYR2 30604 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations for agricultural risk management.112 These commenters said that such an exclusion would reduce the costs and regulatory burdens imposed on such companies and therefore provide a broader choice of swap providers to farmers and other agricultural market participants, which they said would reduce risks.113 One commenter discussed a small energy firm that aggregates demand for swaps from small energy retailers and consumers. This commenter said that such aggregators should be excluded from the swap dealer definition because imposing the swap dealer regulations (which would be promulgated with large financial firms in mind) on such firms would increase costs for the aggregators, discourage the aggregators’ offering of swaps, and thereby reduce choice and efficiency in the market.114 Another commenter said that a firm that enters into swaps with microfinance lenders and offsetting swaps with commercial banks is akin to an introducing broker or FCM, and should be excluded from the swap dealer definition on the grounds that it does not enter into swaps on its own initiative, but rather to provide access to the swap markets to smaller counterparties.115 Another commenter said that there is no need for any special treatment of aggregators in the swap dealer definition. According to this commenter, the CFTC’s guidance regarding the definition and the de minimis exception from the definition address the relevant issues properly and completely.116 mstockstill on DSK4VPTVN1PROD with RULES2 ii. Physical Commodity Swaps Commenters that discussed physical commodity swaps primarily focused on swaps related to energy commodities such as oil, natural gas and electricity. The commenters said that the market for these swaps is different from the market for swaps on interest rates and other financial commodities because, among other things, the swaps are used to 112 See letters from Farmers’ Associations, NGFA I and NMPF. 113 See id. 114 See letter from Northland Energy. This commenter defined an ‘‘aggregator’’ as a person who: (i) Enters into swaps predominantly in one direction with counterparties that are using swaps to establish bona fide hedges; and (ii) offsets risks associated with such swaps using regulated futures contracts or cleared swaps. 115 See letter from MFX dated June 3, 2011 (‘‘MFX II’’). This commenter said that the exclusion should be available to a person who operates primarily on a not-for-profit basis and limits its swap activities to offering swaps to persons in underserved markets and offsetting such swaps, and who meets other requirements to limit the scope of the exclusion. 116 See letter from Better Markets I. VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 mitigate price and delivery risks directly linked to a commercial enterprise; less swap activity flows through intermediaries; the markets for the underlying physical commodities are separately regulated; and the failure of a commodity market participant is not likely to impact financial markets as a whole.117 Therefore, these commenters believe, the application of the swap dealer definition to participants in these physical commodity swap markets should be different from the application to participants in the financial commodity swap markets.118 Some commenters said that imposing the costs of swap dealer regulation on participants in the markets for physical commodity swaps would discourage participation in the market, thereby reducing liquidity and increasing market concentration.119 related to electricity is different from the use of swaps on other physical commodities in that electricity swaps: Are more highly customized to a particular place and time; are more likely to relate to a short time period or be more frequently entered into; typically can be tied to a specific generation, transmission or use of electricity; are more likely to be entered into directly by end-users rather than through dealers; are likely to be entered into by electricity companies on both sides of the market; and in many cases were subject to regulatory oversight prior to the Dodd-Frank Act.121 Commenters made various points regarding how swaps related to electricity should be treated for purposes of the swap dealer definition. A coalition of not-for-profit power utilities and electric cooperatives said iii. Electricity Swaps that electricity cooperatives should be Commenters on the use of swaps in excluded from the swap dealer connection with the generation and definition because they are non-profit transmission of electricity addressed a entities that enter into swaps for the variety of issues. First, commenters said benefit of their members, they do not that markets related to electricity are hold themselves out as swap dealers, different from markets for other physical they do not make markets, and their commodities in that electricity must be swaps are not necessarily reflective of generated and transmitted at the time it market rates.122 Other commenters said is needed (it cannot be stored for future that swaps related to transactions on use); the overall demand for electricity tariff schedules approved by FERC or is inelastic but demand at any particular the Electric Reliability Council of Texas time is subject to external variables, should be disregarded in determining if such as weather; the generation, a person is a swap dealer.123 And, some transmission and use of electricity is commenters said that any special widely dispersed and geographically treatment of swaps related to electricity specific; the markets are overseen by should apply not only to companies that regulators such as state Public Utility generate, transmit or distribute Commissions, regional transmission organizations (‘‘RTOs’’) and the Federal electricity, but also to energy marketing companies that use swaps to benefit Energy Regulatory Commission from price changes in the underlying (‘‘FERC’’); and government mandates require continuous supply of electricity energy commodities or to hedge related risks.124 and treat electricity as a ‘‘public good.’’ 120 Commenters said that because On the other hand, some commenters of these differences, the use of swaps acknowledged that a person who makes a market in swaps related to electricity 117 See letters from BG LNG I, Dominion by standing ready to enter into such Resources, National Energy Marketers Association swaps in order to profit from a bid/ask (‘‘NEM’’), NFPEEU, Vitol and WGCEF I joint letter spread would be a swap dealer, even if from Senator Debbie Stabenow and Representative Frank Lucas (many commercial end-users of swaps the person was in the business of with inherent physical commodity price risk use generating, transmitting or distributing swaps to hedge such risk and otherwise for their own trading objectives and not for the benefit of others) and meetings with Bunge on May 18, 2011 and Electric Companies on April 13, 2011. 118 See id. 119 See letters from Dominion Resources, NEM and NFPEEU. 120 See letters from Edison Int’l, the staff of the FERC (‘‘FERC Staff’’), National Association of Regulatory Utility Commissioners (‘‘NARUC’’), NEM, NextEra I, NFPEEU and National Rural Utilities Cooperative Finance Corporation (‘‘NRU CFC’’) dated February 14, 2011 (‘‘NRU CFC I’’), joint letter from NRECA, APPA, LPPC, EEI and EPSA (‘‘Electric Trade Associations’’) and meetings with Electric Companies on April 13, 2011 and NFPEEU on January 29, 2011. PO 00000 Frm 00010 Fmt 4701 Sfmt 4700 121 See letters from Edison Int’l, EEI/EPSA, Electric Trade Associations, FERC Staff, NextEra I and NFPEEU and meeting with Electric Companies on April 13, 2011. 122 See letter from NFPEEU. This commenter said the exclusion from the swap dealer definition should extend to persons acting as an operating or purchasing agent for other utilities in connection with energy infrastructure products, or otherwise entering into energy commodity swaps on behalf of other end users. 123 See letters from EDF Trading, FERC Staff and NARUC. 124 See letters from DC Energy, EDF Trading and EEI/EPSA. E:\FR\FM\23MYR2.SGM 23MYR2 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations electricity and owned physical facilities for that purpose.125 f. Suggested Exlusions From the Dealer Definitions mstockstill on DSK4VPTVN1PROD with RULES2 Several commenters took the view that the swap dealer and security-based swap dealer definitions should categorically exclude, or should be interpreted in a way that would be expected to exclude, a variety of types of persons or transactions. Commenters particularly suggested that the following categories of persons should be excluded from the dealer definitions: Agricultural cooperatives and electric cooperatives (as addressed above), employee benefit plans as defined in the Employee Retirement Income Security Act of 1974 (‘‘ERISA’’),126 farm credit system institutions,127 Federal Home Loan Banks,128 insured depository institutions that limit their swap dealing activity to riskless principal transactions,129 FCMs and brokerdealers that limit their swap dealing activity to riskless principal transactions,130 financial guaranty insurers and their affiliates that do not enter into new swaps,131 asset managers,132 non-financial companies offering swaps related to their physical commodity business,133 any person who enters into swaps or security-based swaps only with registered dealers and major participants,134 persons that do not pose systemic risk,135 hedge funds 136 and entities that enter into 125 See letter from EEI/EPSA and meeting with Electric Companies on April 13, 2011. 126 See letter from ABC/CIEBA. 127 See letter from Farm Credit Council dated February 22, 2011 (‘‘Farm Credit Council I’’). 128 See letters from Credit Union National Association (‘‘CUNA’’) and Federal Home Loan Banks (‘‘FHLB’’) dated February 22, 2011 (‘‘FHLB I’’). 129 See letter from BOK dated January 31, 2011 (‘‘BOK I’’); but see letter from Vitol at 7 (riskless principal transactions are a ‘‘good model for true swap dealing activity’’). 130 See letter from Newedge. 131 See letter from Association of Financial Guaranty Insurers (‘‘AFGI’’). 132 See letter from BlackRock, Inc. (‘‘BlackRock’’) dated February 22, 2011 (‘‘BlackRock I’’). 133 Commenters making this point varied in their phrasing of potential exclusions, and particularly suggested exclusions for: Agricultural firms offering swaps as risk management tools related to physical commodities (see letter from NGFA I); all firms, other than financial entities whose primary business is swap dealing (see letter from NEM); any person that uses swaps only to reduce price volatility, enters into a volume of swaps relating to any physical commodity that is less than the volume of its trading in that commodity, and is not making a market (see letter from Chesapeake Energy); or any person that limit its use of swaps to hedging or speculating (see letters from API I). 134 See letter from ISDA I. 135 See letters from NARUC and NCGA/NGSA I. 136 See letter from MFA I. VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 swaps or security-based swaps solely in a fiduciary capacity.137 Commenters also suggested that the dealer definitions categorically exclude, or should be interpreted to exclude, the following types of swaps and securitybased swaps: Exchange-cleared swaps and security-based swaps,138 options to make or receive delivery of physical commodities,139 cash forward transactions with embedded swaps and book-out transactions,140 swaps or security-based swaps that are used for hedging or mitigating commercial risk,141 swaps entered into to profit from future changes in the price of the underlying commodity,142 swaps or security-based swaps entered into as a fiduciary or agent for another person,143 swaps or security-based swaps entered into for purposes of price discovery,144 and, as noted above, swaps related to items that are covered by a tariff approved by FERC or the Electric Reliability Council of Texas.145 In contrast, some commenters opposed providing any categorical exclusions from the dealer definitions. One commenter stated that the definitions’ focus on a person’s activities—as opposed to whether that person falls within a particular category—is a better means of determining whether the person is a swap dealer.146 Another commenter described the requested exclusions as attempts to achieve carve-outs that are not provided for in the statute.147 Lastly, several commenters addressed the extraterritorial application of the definitions of the terms ‘‘swap dealer,’’ ‘‘security-based swap dealer,’’ ‘‘major swap participant,’’ ‘‘major securitybased swap participant,’’ and ‘‘eligible 137 See letters from FSR dated February 22, 2011 and Midsize Banks. 138 See letters from Commodity Markets Council (‘‘CMC’’), EEI/EPSA, IECA-Credit I, NextEra I, Shell Trading I, Utility Group and Vitol. 139 See letters from NextEra I and WGCEF I. The commenters acknowledged that such options may or may not be included in the definition of ‘‘swap.’’ 140 See letter from CMC. 141 See, e.g., letters from Edison Int’l and WGCEF I and joint letter from Senator Stabenow and Representative Lucas (also saying that definition of ‘‘hedging’’ should be consistent with respect to the dealer and major participant definitions and the end-user exception from clearing). 142 See letters from EEI/EPSA, NextEra I, Utility Group and WGCEF I. 143 See letters from Midsize Banks, NFPEEU and FSR I. 144 See letters from EEI/EPSA, Vitol and WGCEF I. 145 See letters from EDF Trading, FERC Staff and NARUC. 146 See letter from Better Markets I. 147 See letter from AFSCME. Additional commenters emphasized the need for transparency about swaps and swap activities. See letters from Jason Cropping and BJ D’Milli. PO 00000 Frm 00011 Fmt 4701 Sfmt 4700 30605 contract participant.’’ In general, the commenters addressed when and how the definitions should be applied to persons based outside the U.S. and how the definitions should take account of non-U.S. requirements that may be applicable to such persons.148 The Commissions intend to separately address issues related to the application of these definitions to non-U.S. persons in the context of the application of Title VII to non-U.S. persons. g. Cost-Benefit Issues and Hedging Deterrence Several commenters emphasized the cost of being regulated as a dealer, and emphasized that an overbroad scope of the dealer definitions would impose significant unwarranted costs on entities contrary to the goals of the Dodd-Frank Act, and would deter the use of swaps and security-based swaps for hedging.149 Some commenters also noted that impact of the provisions of section 716 of the Dodd-Frank Act on entities that are deemed to be swap 148 See, e.g., letters from FSR I, Institute of International Bankers, ISDA I, Investment Management Association, Japan Financial Services Agency, Securities Industry and Financial Markets Association (‘‘SIFMA’’) dated February 3, 2011 (‘‘SIFMA I’’), and the World Bank Group, joint letter ´ ˆ from the Autorite de controle prudential and the ´ Autorite des marches financiers, joint letter from Bank of America Merrill Lynch, Barclays Capital, ´ BNP Paribas S.A. (‘‘BNP Paribas’’), Citi, Credit Agricole Corporate and Investment Bank, Credit Suisse Securities (USA), Deutsche Bank AG (‘‘Deutsche Bank’’), HSBC, Morgan Stanley, Nomura Securities International, Inc. (‘‘Nomura Securities’’), ´ ´ ´ ´ Societe Generale and UBS Securities LLC (‘‘Twelve Firms’’), joint letter from the Bank of TokyoMitsubishi UFJ, Ltd., Mizuho Corporate Bank, Ltd. and Sumitomo Mitsui Banking Corporation, and joint letter from Barclays Bank PLC, BNP Paribas, Credit Suisse AG, Deutsche Bank, HSBC, Nomura Securities, Rabobank Nederland, Royal Bank of Canada, the Royal Bank of Scotland Group pLc, ´ ´ ´ ´ Societe Generale, the Toronto-Dominion Bank and UBS AG. 149 See joint letter from Representatives Spencer Bachus and Frank Lucas at 2 (‘‘Casting an overlybroad net in defining [dealer and major participant] could force some smaller participants to leave the marketplace as a result of increased costs, or eliminate certain types of contracts used for hedging. If either occurs, businesses will be left exposed to market volatility and the consequences will ultimately be felt by Americans in the form of increased consumer costs.’’) and letters from ISDA Iat 7 (‘‘The substantial additional burdens and costs of Dealer regulation must be reserved for those whose business it is to ‘make the market,’ that is, those who consistently both buy and sell. This is in accord with Dodd-Frank Act’s market regulatory goals, as well as the legislation’s obvious intent to preserve healthy growth and innovation in the U.S. swap markets.’’ (footnote omitted)), Peabody at 2– 3 (‘‘Legal uncertainty over the application to end users of the significant regulatory requirements for [swap dealers] could lead end users to minimize their use of swaps in order to avoid the risk of being deemed to be [a swap dealer].’’), and Church Alliance (stating that the risk of incurring the costs of dealer regulation would harm employee benefit plans by reducing their use of swaps and securitybased swaps for hedging and risk mitigation). E:\FR\FM\23MYR2.SGM 23MYR2 30606 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations dealers or security-based swap dealers.150 Also, one commenter suggested that using a qualitative test for the dealer definition might increase costs due to regulatory uncertainty.151 One commenter specifically suggested that in considering the final rules, the Commissions should consider empirical data regarding the costs and benefits flowing from the rules and issue a second analysis of the costs and benefits of the rules for public comment,152 while other commenters said that the consideration of cost and benefits should include the cumulative cost of interrelated regulatory burdens arising from all the rules proposed under the Dodd-Frank Act.153 Other commenters said the Commissions should consider alternatives that would impose fewer costs.154 Another commenter said that the costbenefit analyses in the Proposing Release may have understated the benefits of the proposed rules, because focusing on individual aspects of all the rules proposed under the Dodd-Frank Act prevents consideration of the full range of benefits that arise from the rules as a whole, in terms of providing greater financial stability, reducing systemic risk and avoiding the expense of assistance to financial institutions in the future.155 This commenter said the consideration of benefits of the proposed rules should include the mitigated risk of a financial crisis.156 mstockstill on DSK4VPTVN1PROD with RULES2 3. Final Rules and Interpretation— General Principles Consistent with the Proposing Release, the final rules that define the 150 See letters from American Bankers Association (‘‘ABA’’) dated November 3, 2011 (‘‘ABA I’’), BOK I, and ISDA I. Section 716 of the Dodd-Frank Act prohibits any ‘‘swaps entity’’—a term that encompasses swap dealers and security-based swap dealers—from receiving Federal assistance with respect to any swap, security-based swap, or other activity of the swaps entity. 151 See letter from API I (stating that costs of regulatory uncertainty stem from the use of qualitative factors for identifying dealing, and from regulatory efforts to reach beyond ‘‘true’’ swap dealers); see also letter from Dominion Resources (the opportunity costs associated with regulatory uncertainty should be considered). 152 See letter from WGCEF I. 153 See letters from ABA I, NFPEEU and WGCEF dated December 20, 2011, enclosing a report prepared by NERA Economic Consulting (‘‘NERA’’) (‘‘WGCEF VIII’’); see also letter from NERA dated March 13, 2012. 154 See letters from NextEra I (referring to alternative de minimis tests) and NFPEEU. 155 See letter from Better Markets dated June 3, 2011 (‘‘Better Markets II’’). 156 Better Markets cited estimates that the worldwide cost of the 2008 financial crisis in terms of lost output was between $60 trillion and $200 trillion, depending primarily on the long term persistence of the effects. See letter from Better Markets II. VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 terms ‘‘swap dealer’’ and ‘‘securitybased swap dealer’’ closely follow the statutory definitions’ four tests and exclusion for activities that are not part of a ‘‘regular business.’’ 157 In addition, this Adopting Release sets forth interpretive guidance regarding various elements of the final rules. Because the definitions of the terms ‘‘swap dealer’’ in the CEA and ‘‘security-based swap dealer’’ in the Exchange Act are substantially similar, the rules further defining those terms and the accompanying interpretations in this Adopting Release reflect common underlying principles. At the same time, the interpretations regarding the application of the definitions differ in certain respects given the differences in the uses of and markets for swaps and security-based swaps.158 For example, because security-based swaps may be used to hedge or gain economic exposure to underlying individual securities (while recognizing distinctions between security-based swaps and other types of securities, as discussed below), there is a basis to build upon the same principles that presently are used to identify dealers for other types of securities. These same principles, though instructive, may be inapplicable to swaps in certain circumstances or may be applied differently in the context of dealing activities involving commodity, interest rate, or other types of swaps. For these reasons, we separately are addressing the interpretation of the ‘‘swap dealer’’ and ‘‘security-based swap dealer’’ definitions. Also, as discussed below, the Commissions are directing their respective staffs to report separately regarding the rules being adopted in connection with the definition and related interpretations. These staff reports will help the Commissions evaluate the ‘‘swap dealer’’ and ‘‘security-based swap dealer’’ definitions in all respects, including whether new or revised tests or approaches would be appropriate for identifying swap dealers and securitybased swap dealers.159 4. Final Rules and Interpretation— Definition of ‘‘Swap Dealer’’ The Dodd-Frank Act contains a comprehensive definition of the term 157 See CFTC Regulation § 1.3(ggg)(1), (2); Exchange Act rule 3a71–1(a), (b). 158 Section 712(a)(7)(A) of the Dodd-Frank Act provides that in adopting rules and orders implementing Title VII, the Commissions shall treat functionally or economically similar products or entities in a similar manner. Section 712(a)(7)(B), though, provides that the Commissions need not act in an identical manner. 159 See part V, infra. PO 00000 Frm 00012 Fmt 4701 Sfmt 4700 ‘‘swap dealer,’’ based upon types of activities. As noted above, we are adopting a final rule under the CEA that, like the proposed rule, defines the term ‘‘swap dealer’’ using terms from the four statutory tests and the exclusion for swap activities that are not part of ‘‘a regular business.’’ 160 The final rule includes modifications from the proposed rule that are described below, including provisions stating that swaps entered into for hedging physical positions as defined in the rule, swaps between majority-owned affiliates, swaps entered into by a cooperative with its members, and certain swaps entered into by registered floor traders, are excluded from the swap dealer determination.161 The Commissions, in consideration of comments received, are also making certain modifications to the interpretive guidance set out in the Proposing Release with respect to various elements of the statutory definition of the term ‘‘swap dealer,’’ as described below. The determination of whether a person is covered by the statutory definition of the term ‘‘swap dealer’’ requires application of various provisions of the rule further defining that term, as well as the interpretive guidance in this Adopting Release, depending on the person’s particular circumstances. We intend that the determination with respect to a particular person would proceed as follows. The person would begin by applying the statutory definition, and the provisions of the rule which implement the four statutory tests and the exclusion for swap activities that are not part of ‘‘a regular business,’’ 162 in order to determine if the person is engaged in swap dealing activity. In that analysis, the person would apply the interpretive guidance described in this part II.A.4, which provides for consideration of the relevant facts and circumstances. As part of this consideration, the person would apply elements of the dealertrader distinction, as appropriate, including as described in part II.A.4.a, below. The rule provides that certain swaps are not considered in the determination of whether a person is a swap dealer.163 In particular, swaps entered into by an insured depository institution with a customer in connection with originating a loan with that customer, 164 swaps 160 See CFTC Regulation § 1.3(ggg)(1), (2). CFTC Regulation § 1.3(ggg)(6)(ii), (iii). 162 See CFTC Regulation § 1.3(ggg)(1), (2). 163 See CFTC Regulation § 1.3(ggg)(5), (6). 164 See CFTC Regulation § 1.3(ggg)(5); see also part II.B, infra. 161 See E:\FR\FM\23MYR2.SGM 23MYR2 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations between majority-owned affiliates, 165 swaps entered into by a cooperative with its members,166 swaps entered into for hedging physical positions as defined in the rule,167 and certain swaps entered into by registered floor traders 168 are excluded from the swap dealer determination. If, after completing this review (taking into account the applicable interpretive guidance and excluding any swaps as noted above), the person determines that it is engaged in swap dealing activity, the next step is to determine if the person is engaged in more than a de minimis quantity of swap dealing.169 If so, the person is a swap dealer. When the person registers, it may apply to limit its designation as a swap dealer to specified categories of swaps or specified activities of the person in connection with swaps.170 In this part II.A.4., we provide interpretive guidance on the application of the ‘‘swap dealer’’ definition, modified from the Proposing Release as appropriate based on comments received. This guidance separately addresses the following: application of the dealer-trader framework; the ‘‘holding out’’ and ‘‘commonly known’’ criteria; market making; the not part of ‘‘a regular business’’ exception; the exclusion of swaps entered into for hedging physical positions as defined in the rule; and the overall interpretive approach to the definition.171 mstockstill on DSK4VPTVN1PROD with RULES2 a. Use of the Dealer-Trader Distinction We believe that the dealer-trader distinction 172—which already forms a basis for identifying which persons fall within the longstanding Exchange Act definition of ‘‘dealer’’—in general provides an appropriate framework for interpreting the statutory definition of the term ‘‘swap dealer.’’ 173 While there 165 See CFTC Regulation § 1.3(ggg)(6)(i); see also part II.C, infra. 166 See CFTC Regulation § 1.3(ggg)(6)(ii); see also part II.C, infra. 167 See CFTC Regulation § 1.3(ggg)(6)(iii); see also part II.B.4.e, infra. 168 See CFTC Regulation § 1.3(ggg)(6)(iv); see also part II.B.4.f, infra. 169 See CFTC Regulation § 1.3(ggg)(4); see also part II.D, infra. 170 See CFTC Regulation § 1.3(ggg)(3); see also part II.E, infra. 171 The Commissions note that interpretations of the applicability of the dealer-trader distinction to the ‘‘swap dealer’’ definition under the CEA do not affect existing, or future, interpretations of the dealer-trader distinction under the Exchange Act. 172 See note 31, supra. The principles embedded within the ‘‘dealer-trader distinction’’ are also applicable to distinguishing dealers from nondealers such as hedgers or investors. See note 250, infra. 173 The Commissions note that interpretations of the applicability of the dealer-trader distinction to the ‘‘swap dealer’’ definition under the CEA do not VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 are differences in the structure of those two statutory definitions,174 we believe that their parallels—particularly their exclusions for activities that are ‘‘not part of a regular business’’—warrant analogous interpretive approaches for distinguishing dealers from nondealers.175 Thus, the dealer-trader distinction forms the basis for a framework that appropriately distinguishes between persons who should be regulated as swap dealers and those who should not. We also believe that the distinction affords an appropriate degree of flexibility to the analysis, and that it would not be appropriate to seek to codify the distinction in rule text. The Commissions recognize that the dealer-trader distinction needs to be adapted to apply to swap activities in light of the special characteristics of swaps and the differences between the ‘‘dealer’’ definition, on the one hand, and the ‘‘swap dealer’’ definition, on the other. Relevant differences between the swap market and the markets for securities (other than security-based swaps) include: • Level of activity—Swap markets are marked by less activity than markets affect existing, or future, interpretations of the dealer-trader distinction under the Exchange Act. 174 For example, while the ‘‘dealer’’ definition encompasses certain persons in the business of ‘‘buying and selling’’ securities, the ‘‘swap dealer’’ definition does not address either ‘‘buying’’ or ‘‘selling.’’ We also note that the ‘‘dealer’’ definition requires the conjunctive ‘‘buying and selling’’— which connotes a degree of offsetting two-sided activity. In contrast, the swap dealer definition (particularly the ‘‘regularly enters into’’ swaps language of the definition’s third prong) lacks that conjunctive terminology. 175 In the Proposing Release, the CFTC did not propose to use principles from the dealer-trader distinction to interpret the definition of the term ‘‘swap dealer,’’ instead proposing an interpretive approach that focused on, among other things, a person’s functional role in the swap markets and its relationships with swap counterparties. See Proposing Release, 75 FR at 80177. There was, however, some overlap in practice between the factors identified in the Proposing Release relating to a swap dealer’s functional role and relationships and the principles of the dealer-trader distinction that were proposed to be applied to identify security-based swap dealers. Moreover, the changes to the interpretive approach to the swap dealer definition that we are adopting here and discussed in this part II.A.4 are in many respects similar to the principles of the dealer-trader distinction. We also acknowledge the commenters who asked for additional guidance regarding the application of the definitions. See, e.g., letters from Gavilon II, Peabody and the Utility Group, and meeting with CDEU on April 7, 2011. Thus, while the incorporation of the dealer-trader distinction in the interpretation of the term ‘‘swap dealer’’ constitutes a change from the Proposing Release, this is simply reflective of the other changes to the CFTC’s interpretive approach that we are adopting for the final rule and the overlap between the factors relating to a swap dealer’s functional role and counterparty relationships and the principles of the dealer-trader distinction. PO 00000 Frm 00013 Fmt 4701 Sfmt 4700 30607 involving certain types of securities (while recognizing that some debt and equity securities are not actively traded). This suggests that in the swap context, concepts of ‘‘regularity’’ should account for a participant’s level of activity in the market relative to the total size of the market. • No separate issuer—Each counterparty to a swap in essence is the ‘‘issuer’’ of that instrument; in contrast, dealers in cash market securities generally transact in securities issued by another party. This distinction suggests that the concept of maintaining an ‘‘inventory’’ of securities is inapposite in the context of swaps. Moreover, this distinction—along with the fact that the ‘‘swap dealer’’ definition lacks the conjunctive ‘‘buying and selling’’ language of the ‘‘dealer’’ definition— suggests that concepts of two-sided markets at times would be less relevant for identifying swap dealers than they would be for identifying dealers.176 • Predominance of over-the-counter and non-standardized instruments— Swaps an thus far are not significantly traded on exchanges or other trading systems, in contrast to some cash market securities (while recognizing that many cash market securities also are not significantly traded on those systems).177 These attributes—along with the lack of ‘‘buying and selling’’ language in the swap dealer definition, as noted above—suggest that concepts of what it means to make a market need to be construed flexibly in the contexts of the swap markets. • Mutuality of obligations and significance to ‘‘customer’’ relationship—In contrast to a secondary market transaction involving equity or debt securities, in which the completion of a purchase or sale transaction can be expected to terminate the mutual obligations of the parties to the transaction, the parties to a swap often will have an ongoing obligation to exchange cash flows over the life of the agreement. In light of this attribute, some market participants have expressed the view that they have ‘‘counterparties’’ rather than ‘‘customers’’ in the context of their swap activities. In applying the dealer-trader distinction, it also is necessary to apply 176 The analysis also should account for the fact that a party to a swap can use other derivatives or cash market instruments to hedge the risks associated with the swap position, meaning that two-way trading is not necessary to maintain a flat risk book. 177 Even though we expect trading of swaps on exchanges following the implementation of Title VII, we expect there to remain a significant amount of over-the-counter activity involving swaps. E:\FR\FM\23MYR2.SGM 23MYR2 30608 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES2 the statutory provisions that will govern swap dealers in an effective and logical way. Those statutory provisions added by the Dodd-Frank Act advance financial responsibility (e.g., the ability to satisfy obligations, and the maintenance of counterparties’ funds and assets) associated with swap dealers’ activities,178 other counterparty protections,179 and the promotion of market efficiency and transparency.180 As a whole, the relevant statutory provisions suggest that we should interpret the ‘‘swap dealer’’ definition to identify those persons for which regulation is warranted either: (i) Due to the nature of their interactions with counterparties; or (ii) to promote market stability and transparency, in light of the role those persons occupy within the swap and security-based swap markets. There are several aspects of our interpretive approach to the swap dealer definition that are particularly similar to the dealer-trader distinction as it will be applied to determine if a person is a security-based swap dealer. In particular, the following activities, which are indicative of dealing activity in the application of the dealer-trader distinction,181 similarly are indicative that a person is acting as a swap dealer: 182 (i) Providing liquidity by accommodating demand for or facilitating interest in the instrument (swaps, in this case), holding oneself out as willing to enter into swaps (independent of whether another party has already expressed interest), or being known in the industry as being available to accommodate demand for swaps; (ii) advising a counterparty as to how to use swaps to meet the counterparty’s hedging goals, or structuring swaps on 178 E.g., capital and margin requirements (CEA section 4s(e)), and requirements for segregation of collateral (CEA sections 4d(f), 4s(l)). 179 E.g., requirements with respect to business conduct when transacting with special entities (CEA sections 4s(h)(2), 4s(h)(4), 4s(h)(5)); disclosure requirements (CEA section 4s(h)(3)(B)); requirements for fair and balanced communications (CEA section 4s(h)(3)(D)); other requirements related to the public interest and investor protection (CEA section 4s(h)(3)(D)); and conflict of interest provisions (CEA section 4s(j)(5)). 180 E.g., reporting and recordkeeping requirements (CEA section 4s(f)); daily trading records requirements (CEA section 4s(g)); regulatory standards related to the confirmation, processing, netting, documentation and valuation of securitybased swaps (CEA section 4s(i)); position limit monitoring requirements (CEA section 4s(j)(1)); risk management procedure requirements (CEA section 4s(j)(2)); and requirements related to the disclosure of information to regulators (CEA section 4s(j)(3)). 181 See generally part II.A.5, infra. 182 To clarify, the activities listed in the text are indicative of acting as a swap dealer. Engaging in one or more of these activities is not a prerequisite to a person being covered by the swap dealer definition. VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 behalf of a counterparty; (iii) having a regular clientele and actively advertising or soliciting clients in connection with swaps; 183 (iv) acting in a market maker capacity on an organized exchange or trading system for swaps; 184 and (v) helping to set the prices offered in the market (such as by acting as a market maker) rather than taking those prices, although the fact that a person regularly takes the market price for its swaps does not foreclose the possibility that the person may be a swap dealer. The Commissions further note that the following elements of the interpretive approach to the swap dealer definition are also generally consistent with the dealer-trader distinction as it will be applied to determine if a person is a security-based swap dealer: (i) A willingness to enter into swaps on either side of the market is not a prerequisite to swap dealer status; (ii) the swap dealer analysis does not turn on whether a person’s swap dealing activity constitutes that person’s sole or predominant business; (iii) a customer relationship is not a prerequisite to swap dealer status; and (iv) in general, entering into a swap for the purpose of hedging, absent other activity, is unlikely to be indicative of dealing. Last, under the interpretive approach to the definition of both the terms ‘‘swap dealer’’ and ‘‘security-based swap dealer,’’ whether a person is acting as a dealer will turn upon the relevant facts and circumstances, as informed by the interpretive guidance set forth in this Adopting Release. At the same time, the Commissions recognize that the dealer-trader distinction is not static, but rather has evolved over time through interpretive materials. The Commissions expect the dealer-trader distinction to evolve over time with respect to swaps independently of its evolution over time with respect to securities or securitybased swaps. Prior interpretations and future developments in the law 183 As with the interpretation of the dealer-trader distinction with respect to securities, a nomenclature distinction between ‘‘counterparties’’ and ‘‘customers’’ is not significant for purposes of applying the dealer-trader distinction to swap activities. Contractual provisions related to nomenclature, such as a provision stating that no ‘‘customer’’ relationship is present, would not be significant if the reality of the situation is different. See note 271, infra, and accompanying text. 184 As with the dealer-trader distinction as it has been interpreted under the Exchange Act with respect to securities (and as noted below in the discussion of the ‘‘makes a market in swaps’’ prong of the swap dealer definition), the presence of an organized exchange or trading system is not a prerequisite to being a market maker for purposes of the swap dealer definition, nor is acting as a market maker a prerequisite to being a swap dealer. PO 00000 Frm 00014 Fmt 4701 Sfmt 4700 regarding securities or security-based swaps may inform the interpretation of the swap dealer definition, but will not be dispositive in identifying dealers in the swap markets.185 b. Indicia of Holding Oneself Out as a Dealer in Swaps or Being Commonly Known in the Trade as a Dealer in Swaps The final rule further defining the term ‘‘swap dealer’’ includes the provisions in the proposed rule which incorporate the statutory requirements that the term includes a person that is holding itself out as a dealer in swaps or is engaging in any activity causing it to be commonly known in the trade as a dealer or market maker in swaps.186 We continue to believe that the Proposing Release appropriately identifies a number of factors as indicia of ‘‘hold[ing] itself out as a dealer in swaps’’ and ‘‘engag[ing] in any activity causing [itself] to be commonly known in the trade as a dealer or market maker in swaps.’’ 187 In our view, those factors thus are relevant to determining if a person is a swap dealer. For example, regarding the proposed factor of ‘‘membership in a swap association in a category reserved for dealers,’’ we note that the bylaws of the International Swaps and Derivatives Association (‘‘ISDA’’) provide that any business organization that: Directly or through an affiliate, as part of its business (whether for its own account or as agent), deals in derivatives shall be eligible for election to membership in the Association as a Primary Member, provided that no person or entity shall be eligible for membership as a Primary Member if such person or entity participates in derivatives transactions solely for the purpose of risk hedging or asset or liability management.188 We believe that in circumstances such as this, where a category of association 185 In interpreting the term ‘‘swap dealer,’’ we intend to consider, but do not formally adopt, the body of court decisions, SEC releases, and SEC staff no-action letters that have interpreted the dealertrader distinction. 186 See CFTC Regulation § 1.3(ggg)(1)(i) and (iv). 187 These factors are as follows: Contacting potential counterparties to solicit interest; developing new types of swaps or security-based swaps and informing potential counterparties of their availability and of the person’s willingness to enter into the swap or security-based swap; membership in a swap association in a category reserved for dealers; providing marketing materials describing the type of swaps or security-based swaps the party is willing to enter into; and generally expressing a willingness to offer or provide a range of products or services that include swaps or security-based swaps. See Proposing Release, 75 FR at 80178. 188 See By-laws of ISDA at 3, available at: https://www.isdadocs.org/membership. The Commissions note that the Primary Members of ISDA are not limited to only financial firms. E:\FR\FM\23MYR2.SGM 23MYR2 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES2 membership requires that a person deal in derivatives and not limit its participation in derivative transactions to solely risk hedging, membership in the category is an indicator of swap dealer status.189 We take note, however, of the comments that these activities may be insufficient to establish that a person is a swap dealer. In particular, we generally agree with commenters that many commercial end users of swaps do, from time to time, actively seek out and negotiate swaps. Yet, based on the applicable facts and circumstances, these end users do not necessarily fall within the definition of a swap dealer solely because they actively seek out and negotiate swaps from time to time. The activities described in the Proposing Release as indicia of holding oneself out as a swap dealer or engaging in any activity causing oneself to be commonly known as a swap dealer should not be considered in a vacuum, but should instead be considered in the context of all the activities of the swap participant. While the activities listed in the Proposing Release are indicators that a person is holding itself out or is commonly known as a swap dealer, these are factors to be considered in the analysis. They are not per se conclusive, and could be countered by other factors indicating that the person is not a swap dealer.190 Because of the flexibility— including the consideration of applicable facts and circumstances— needed for such an analysis, we do not believe that it is appropriate to codify this guidance in rule text, as suggested by some commenters. c. Market Making The final rule defining ‘‘swap dealer’’ includes the provision from the proposed rule which incorporates the statutory requirement that this term include a person that ‘‘makes a market in swaps.’’ 191 We have considered the comments suggesting various descriptions of activities that should and should not be deemed to be market making in swaps for purposes of this rule. In consideration of these comments, we clarify that making a market in swaps is appropriately described as routinely standing ready to enter into swaps at the request or demand of a counterparty. In this regard, ‘‘routinely’’ means that the person must do so more frequently than occasionally, but there is no requirement that the person do so continuously.192 It is appropriate, in response to comments asking for further guidance regarding what activities constitute making a market in swaps, to describe some of the activities indicative of whether a person is routinely standing ready to enter into swaps at the request or demand of a counterparty. Such activities include routinely: (i) Quoting bid or offer prices, rates or other financial terms for swaps on an exchange; (ii) responding to requests made directly, or indirectly through an interdealer broker, by potential counterparties for bid or offer prices, rates or other similar terms for bilaterally negotiated swaps; (iii) placing limit orders for swaps; or (iv) receiving compensation for acting in a market maker capacity on an organized exchange or trading system for swaps.193 These examples are not 189 However, while such membership is an indicator of swap dealer status, a person holding such membership could nonetheless be excluded by other provisions of the definition of the term ‘‘swap dealer.’’ For example, an insured depository institution that limits its activity to offering swaps in connection with the origination of loans, as discussed below in part II.B, would not be covered by the definition simply because it holds such membership. 190 The statutory definition of the term ‘‘swap dealer’’ contains four separate clauses, or ‘‘prongs,’’ joined by the disjunctive ‘‘or,’’ the ordinary meaning of which is that the prongs are stated as alternative types of swap dealer. Accordingly, where an assessment of all the activities of a swap participant demonstrates that the person is not holding itself out as a swap dealer or engaging in any activity that causes it to be commonly known as a swap dealer, that person may, nonetheless, be a swap dealer based on the market making or regular business prongs of the swap dealer definition, discussed below. The Commissions note, however, that as discussed below in part II.A.4.g, the CFTC’s overall interpretive guidance, including guidance regarding the dealer-trader framework, applies to identify swap dealers under all four prongs of the statutory ‘‘swap dealer’’ definition. 191 See CFTC Regulation § 1.3(ggg)(1)(ii). Because the statutory swap dealer definition contains four disjunctive prongs, the CFTC does not agree with a commenter (see letter from ISDA I) who asserted that status as a market maker in swaps is a prerequisite to a person being a swap dealer. 192 A person that occasionally, or less than routinely, enters into a swap at the request of a counterparty is not a maker of a market in swaps, and therefore is not a swap dealer on that basis. However, we reiterate, as stated in the Proposing Release, that since many types of swaps are not entered into on a continuous basis, it is not necessary that a person enter into swaps at the request or demand of counterparties on a continuous basis in order for the person to be a market maker in swaps and, therefore, a swap dealer. 193 In addition, section 619 of the Dodd-Frank Act (the ‘‘Volcker Rule’’) generally prohibits banking entities from engaging in proprietary trading, but contains an exception for certain market makingrelated activities. The Commissions have proposed an approach to the Volcker Rule under which a person could seek to avoid the Volcker Rule in connection with swap activities by asserting the availability of that market making exception. See SEC, Board, Office of the Comptroller of the Currency (‘‘OCC’’), and Federal Deposit Insurance VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 PO 00000 Frm 00015 Fmt 4701 Sfmt 4700 30609 exhaustive, and other activities also may be indicative of making a market in swaps if the person engaging in them routinely stands ready to enter into swaps as principal at the request or demand of a counterparty. In determining whether a person’s routine presence in the market constitutes market making under these four factors, the dealer-trader interpretative framework may be usefully applied.194 Under the dealertrader distinction, seeking to profit by providing liquidity to the market is an indication of dealer activity.195 Thus, in applying these four factors, it is useful to consider whether the person is seeking, through presence in the market, compensation for providing liquidity, compensation through spreads or fees, or other compensation not attributable to changes in the value of the swaps it enters into.196 If not, such activity would not be indicative of market making. Some commenters suggested that, in order to be a market maker in swaps, a person must make a two-way market in swaps.197 Nonetheless, it is possible for a person making a one-way market in swaps to be a maker of a market in swaps and, therefore, within the swap dealer definition. This may be true, for example, where a person routinely Corporation (‘‘FDIC’’), Prohibitions and Restrictions on Proprietary Trading and Certain Interests in, and Relationships With, Hedge Funds and Private Equity Funds; Proposed Rule, 76 FR 68846 (Nov. 7, 2011); CFTC, Prohibitions and Restrictions on Proprietary Trading and Certain Interests in, and Relationships With, Hedge Funds and Private Equity Funds; Proposed Rule, 77 FR 8332 (Feb. 14, 2012). Under this approach, such a person would likely also be required to register as a swap dealer (unless the person is excluded from the swap dealer definition, such as by the exclusion of certain swaps entered into in connection with the origination of a loan). The SEC has proposed to adopt the same approach with respect to the interplay of the Volcker Rule and the definition of the term ‘‘security-based swap dealer.’’ See note 272, infra. 194 We recognize that routine presence in the swap market is not necessarily indicative of making a market in swaps. For example, persons may be routinely present in the market in order to engage in swaps for purposes of hedging, to advance their investment objectives, or to engage in proprietary trading. 195 See note 265, infra, and accompanying text. 196 In this case, the spread from which a person profits may be between two or more swaps, or it may be between a swap and another position or financial instrument. In contrast, entering into swaps in order to obtain compensation attributable to changes in the value of the swaps is indicative of using swaps for a hedging, investment or trading purpose. 197 See letters cited in notes 52 to 58, supra. Although swaps are notional contracts requiring the performance of agreed upon terms by each party, it is possible to describe swap users in practical terms as being on either ‘‘side’’ of a market. For example, for many swaps the party paying a fixed amount is on one ‘‘side’’ of the market and the party paying a floating amount is on the other ‘‘side.’’ E:\FR\FM\23MYR2.SGM 23MYR2 30610 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations stands ready to enter into swaps on a particular side of the market—say, routinely bidding for floating exposures on a swap trading platform—while entering into transactions on the other side of the market in other instruments (such as futures contracts). The relevant indicator of market maker status is the willingness of the person to routinely stand ready to enter into swaps at the request or demand of a counterparty (as opposed to entering into swaps to accommodate one’s own demand or desire to participate in a particular market), be it on one or both sides of the market, and then to enter into offsetting positions, either in the swap market or in other markets. The Commissions disagree with the commenters who said that swaps executed on an exchange should not be considered in determining if a person is a market maker in swaps and thus a swap dealer.198 First, the statutory definition of the term ‘‘swap dealer’’ makes no distinction between swaps executed on an exchange and swaps that are not, suggesting that the same protections should apply regardless of the method of executing the swap. Second, from the perspective of an end user seeking to execute a swap on an exchange, the important consideration under our analysis is whether a market maker is ready to enter into swaps, not whether the market maker is aware of the counterparty’s identity. A market maker in swaps routinely stands ready to enter into swaps at the request or demand of a counterparty, regardless of whether the counterparty and the market maker meet on a disclosed basis through bilateral negotiations or anonymously through an exchange.199 Similarly, the issue of whether a person is a registered FCM or broker-dealer is not necessarily relevant to whether the person is a maker of a market in swaps, if the person is routinely standing ready to enter into swaps at the request or demand of a counterparty. Third, we believe it would be inappropriate to disregard swaps executed on exchanges 198 See, e.g., letters cited in note 62, supra. discussed above, in many cases routine presence in the swap market, without more, would not constitute market making activity. Nevertheless, the CFTC will, in connection with promulgation of final rules relating to capital requirements for swap dealers and major swap participants, consider institution of reduced capital requirements for entities or individuals that fall within the swap dealer definition and that execute swaps only on exchanges, using only proprietary funds. Similarly, the CFTC also will consider the applicability to such entities or individuals of the other requirements imposed on swap dealers (e.g., internal business conduct standards, external business conduct standards with counterparties), and may adjust those swap dealer requirements as appropriate. mstockstill on DSK4VPTVN1PROD with RULES2 199 As VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 in order, as some commenters suggested,200 to encourage market participants to use, or to provide liquidity to, exchanges. Finally, variety of exchanges, markets, and other facilities for the execution of swaps are likely to evolve in response to the requirements of the Dodd-Frank Act, and there is no basis for any bright-line rule excluding swaps executed on an exchange, given the impossibility of obtaining information about how market participants will interact and execute swaps in the future, after the requirements under the Dodd-Frank Act are fully in effect. For all these reasons, we have determined that it is inappropriate to restrict the ‘‘making a market in swaps’’ prong of the swap dealer definition (i.e., routinely standing ready to enter into swaps at the request or demand of a counterparty) to swaps that are not executed on an exchange.201 d. Exception for Activities Not Part of ‘‘a Regular Business’’ The final rule includes the provisions in the proposed rule that incorporate the provisions of the statutory definition regarding activities that are not part of ‘‘a regular business’’ of entering into swaps. One provision states that the term ‘‘swap dealer’’ includes a person that ‘‘regularly enters into swaps with counterparties as an ordinary course of business for its own account’’; the other provision states that the term ‘‘swap dealer’’ does not include a person that ‘‘enters into swaps for such person’s own account, either individually or in a fiduciary capacity, but not as a part of a regular business.’’ 202 200 See, e.g., letters cited in note 66, supra. Since the structures of the markets on which swaps will be executed are still in development, and market obligations have not been established, there is little support for comments asserting that market makers should be defined as only those persons who receive benefits from the market (such as reduced trading fees) in return for the obligation to transact when the market requires liquidity. 201 By contrast, it may be appropriate, over time, to tailor the specific requirements imposed on swap dealers depending on the facility on which the swap dealer executes swaps. For example, the application of certain business conduct requirements may vary depending on how the swap is executed, and it may be appropriate, as the swap markets evolve, to consider adjusting certain of those requirements for swaps that are executed on an exchange or through particular modes of execution. 202 Final CFTC Regulation § 1.3(ggg)(2) is modified from the proposal to include the word ‘‘a’’ before the words ‘‘regular business,’’ to conform the text of the rule to the text of the statute. See CEA section 1a(49)(C), 7 U.S.C. 1a(49)(C). As stated in the Proposing Release, we interpret the reference in the definition of the term ‘‘swap dealer’’ to a person entering into swaps ‘‘with counterparties * * * for its own account’’ to refer to a person who enters into a swap as a principal, and not as an agent. A person who enters into swaps as an agent for customers (i.e., for the PO 00000 Frm 00016 Fmt 4701 Sfmt 4700 The Commissions continue to believe, as stated in the Proposing Release, that the phrases ‘‘ordinary course of business’’ and ‘‘a regular business’’ are, for purposes of the definition of ‘‘swap dealer’’ essentially synonymous. In this context, we interpret these phrases to focus on activities of a person that are usual and normal in the person’s course of business and identifiable as a swap dealing business. It is not necessarily relevant whether the person conducts its swap-related activities in a dedicated subsidiary, division, department or trading desk, or whether such activities are a person’s ‘‘primary’’ business or an ‘‘ancillary’’ business, so long as the person’s swap dealing business is identifiable.203 We have taken into consideration comments seeking additional guidance regarding the types and levels of activities that constitute having ‘‘a regular business’’ of entering into swaps.204 In this regard, any one of the following activities would generally constitute both entering into swaps ‘‘as an ordinary course of business’’ and ‘‘as a part of a regular business’’: 205 (i) Entering into swaps with the purpose of satisfying the business or risk management needs of the counterparty (as opposed to entering into swaps to accommodate one’s own demand or desire to participate in a particular market); (ii) maintaining a separate profit and loss statement reflecting the results of swap activity or treating swap activity as a separate profit center; or (iii) having staff and resources allocated to dealer-type activities with counterparties, including activities relating to credit analysis, customer onboarding, document negotiation, confirmation generation, requests for novations and amendments, exposure monitoring and collateral calls, covenant monitoring, and reconciliation.206 customers’ accounts) would be required to register as either an FCM, introducing broker, commodity pool operator or commodity trading advisor, depending on the nature of the person’s activity. 203 We recognize, as noted by one commenter (see letter from ISDA I), that the ‘‘regular business’’ exclusion is not limited solely to the ‘‘ordinary course of business’’ test of the swap dealer definition. Our interpretations of the other three tests are, and should be read to be, consistent with the exclusion of activities that are not part of a regular business. 204 See, e.g., letters from BG LNG I, COPE I, IECA– Credit I, Shell Trading I, WGCEF I and Vitol (stating that the proposed approach was overly subjective and requesting guidance as to the specific activities that are covered by the statutory definition). 205 These activities are inconsistent with entering into a swap to hedge a physical position as defined in § 1.3(ggg)(6)(iii). As discussed below, such hedging is not dealing activity. 206 The three indicators of being engaged in ‘‘a regular business’’ of entering into swaps described E:\FR\FM\23MYR2.SGM 23MYR2 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES2 The Commissions see merit in the comments saying that ‘‘a regular business’’ of entering into swaps can be characterized by entering into swaps to satisfy the business or risk management needs of the other party to the swap, and so incorporate this element into our interpretation of the rule.207 Also, an objective indicator of a person being engaged in ‘‘a regular business’’ of entering into swaps is when the person accounts for the results of its swap activities separately, by maintaining a separate profit and loss statement for those activities or treating them as a separate profit center. Our interpretation incorporates this indicator of activity that is ‘‘a regular business’’ of entering into swaps. Other comments suggesting specific criteria to identify ‘‘a regular business’’ also were helpful. We agree with commenters 208 that ‘‘a regular business’’ of entering into swaps can be characterized by having staff and resources allocated to the types of activities in which swap dealers must engage with their counterparties, such as those noted above (e.g., credit analysis, confirmation generation, collateral calls, and covenant monitoring). However, we understand that some end users of swaps engage in some of these activities and, in certain circumstances, may have staff and resources available for these activities. Therefore, this element of the definition should be applied in a reasonable manner, taking all appropriate circumstances into account. This element does not depend on whether a specific amount or percentage of expenses or employee time are related to these swap activities. Instead, it is appropriate to objectively examine a person’s use of staff and resources related to swap activities. Using staff and resources to a significant extent in conducting credit analysis, opening and monitoring accounts and the other activities noted above, is an indication that the person is engaged in ‘‘a regular business’’ of entering into swaps. here are set forth in the alternative. Any one of these indicators may be sufficient, based on a facts and circumstances analysis, to reach a conclusion that an entity is engaged in ‘‘a regular business’’ of entering into swaps. 207 This element of the interpretation reflects our agreement with those commenters who said that ‘‘a regular business’’ of entering into swaps is characterized by having a business of accommodating demand or facilitating interest in swaps (see letter from IECA–Credit I), and those commenters who said that ‘‘a regular business’’ does not encompass the use of swaps to serve a person’s own business needs, as opposed to serving the business needs of the counterparty (see letters cited in note 71, supra). 208 See letters cited in note 80, supra. VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 Regarding the commenters’ assertion that the activity of entering into swaps in connection with a person’s physical commodity business cannot constitute ‘‘a regular business’’ of the person, we believe that while in most cases this is not dealing activity,209 a per se exclusion of this type is not appropriate because it is possible that in some circumstances a person might enter into swaps that are connected to a physical commodity business but also serve market functions characteristic of the functions served by swap dealers. Also, again, the statutory definition does not contain any such exclusion, but rather includes any person who ‘‘regularly enters into swaps with counterparties as an ordinary course of business for its own account,’’ without regard to the person’s particular type of business. Consistent with the statutory definition, we interpret ‘‘a regular business’’ of entering into swaps in a manner that applies equally to all market participants that engage in the activities set forth in the statutory definition. This will ensure that all participants in the swap markets are regulated in a fair and consistent manner, regardless of whether their underlying business is primarily physical or financial in nature.210 Finally, as noted above, the manner in which persons negotiate, execute and use swaps is likely to evolve in response to the requirements of the Dodd-Frank Act and the other forces that will shape the swap markets going forward. For this reason, it would be inappropriate to craft per se exclusions from the swap dealer definition at a time when the only available information about the use of swaps relates to the period prior to implementation of the Dodd-Frank Act.211 209 See CFTC Regulation § 1.3(ggg)(6)(iii) (swaps entered into for hedging physical positions as defined in the rule are not considered in the determination of whether a person is a swap dealer). 210 Regulation of firms engaged in an underlying physical business is also consistent with regulatory practices outside the U.S. For example, nonfinancial entities register with the Financial Services Authority in the U.K. as ‘‘Oil Market Participants’’ and ‘‘Energy Market Participants.’’ See Financial Services Authority Handbook EMPS and OMPS, available at https://fsahandbook.info/ FSA/html/handbook. 211 For the same reasons, we do not believe it would be appropriate, in determining whether a person has a ‘‘regular business’’ of entering into swaps, to consider whether a person engages in activities normally associated with financial institutions, as some commenters suggested. See letters cited in note 76, supra. PO 00000 Frm 00017 Fmt 4701 Sfmt 4700 30611 e. Interim Final Rule Excluding Swaps Entered Into for Hedging Physical Positions We note that some commenters said that swaps used to hedge or mitigate commercial risks should not be considered in determining whether a person is a swap dealer.212 We understand that swaps are used to hedge risks in numerous and varied ways, and we expect that the number of persons covered by the definition will be very small in comparison to the thousands of persons that use swaps for hedging. In terms of the statutory definition of the term ‘‘swap dealer,’’ the CFTC notes as an initial matter that there is no specific provision addressing hedging activity. Thus, the statutory definition leaves the treatment of hedging swaps to the CFTC’s discretion; it neither precludes consideration of a swap’s hedging purpose, nor does it require an absolute exclusion of all swaps used for hedging.213 In general, entering into a swap for the purpose of hedging is inconsistent with swap dealing.214 The practical 212 See, e.g., letters cited in note 72, supra. this regard, the statutory definition of the term ‘‘swap dealer’’ stands in contrast to the statutory definition of the term ‘‘major swap participant’’ which, as discussed further below, explicitly provides that positions in swaps held for hedging or mitigating commercial risk are to be excluded in certain parts of that definition. See CEA section 1a(33)(A)(i)(1), 7 U.S.C. 1a(33)(A)(i)(1). The absence of any explicit requirement in the ‘‘swap dealer’’ definition to exclude swaps held for hedging or mitigating commercial risk does not support the view that Congress intended to categorically exclude all swaps that may serve as hedges in determining whether a person is covered by the definition. Similarly, the absence of any limitation in the statutory definition of the term ‘‘swap dealer’’ to financial entities, when such limitation is included elsewhere in Title VII, indicates that no such limitation applies to the swap dealer definition. CEA section 2(h)(7), 7 U.S.C. 2(h)(7), specifically limits the application of the clearing mandate, in certain circumstances, to only ‘‘financial entities.’’ That section also provides a detailed definition of the term ‘‘financial entity.’’ See CEA section 2(h)(7)(C), 7 U.S.C. 2(h)(7)(C). That such a limitation is included in this section, but not in the swap dealer definition, does not support the view that the statutory definition of the term ‘‘swap dealer’’ should encompass only financial entities. 214 For example, under the dealer-trader distinction, the Commissions would expect persons that use security-based swaps to hedge their business risks, absent other activity, likely would not be dealers. See part II.A.5.b, infra. Under the CFTC’s interpretive guidance, making a market in swaps is appropriately described as routinely standing ready to enter into swaps at the request or demand of a counterparty, and the indicia of swap dealing as a ‘‘regular business’’ include entering into swaps to satisfy the business or risk management needs of the counterparty. Entering into swaps for the purpose of hedging one’s own risks generally would not be indicative of this form of swap activity. See also, e.g., joint letter from Senator Stabenow and Representative Lucas (the 213 In E:\FR\FM\23MYR2.SGM Continued 23MYR2 mstockstill on DSK4VPTVN1PROD with RULES2 30612 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations difficulty lies in determining when a person has entered into a swap for the purpose of hedging, as opposed to other purposes for entering into swaps, such as accommodating demand for swaps or as part of making a market in swaps, and in distinguishing a swap with a hedging purpose from a swap with a hedging consequence. In view of these uncertainties, the CFTC believes it is appropriate to adopt an interim final rule that draws upon the principles of bona fide hedging that the CFTC has long applied to identify when a financial instrument is used for hedging purposes, and excludes from the swap dealer analysis swaps entered into for the purpose of hedging physical positions that meet the requirements of the rule. Specifically, the CFTC is adopting as an interim final rule CFTC Regulation § 1.3(ggg)(6)(iii), which provides that the determination of whether a person is a swap dealer will not consider a swap that the person enters into, if: (i) The person enters into the swap for the purpose of offsetting or mitigating the person’s price risks that arise from the potential change in the value of one or several (a) assets that the person owns, produces, manufactures, processes, or merchandises or anticipates owning, producing, manufacturing, processing, or merchandising; (b) liabilities that the person owns or anticipates incurring; or (c) services that the person provides, purchases, or anticipates providing or purchasing; (ii) the swap represents a substitute for transactions made or to be made or positions taken or to be taken by the person at a later time in a physical marketing channel; (iii) the swap is economically appropriate to the reduction of the person’s risks in the conduct and management of a commercial enterprise; (iv) the swap is entered into in accordance with sound commercial practices; and (v) the person does not enter into the swap in connection with activity structured to evade designation as a swap dealer.215 Thus, although the CFTC is not incorporating the bona fide hedging provisions of the CFTC’s position limits rule here, the exclusion from the swap dealer analysis draws upon language in the CFTC’s definition of bona fide final rule should distinguish using swaps for hedging from swap dealing). 215 See CFTC Regulation § 1.3(ggg)(6)(iii). All five requirements set forth in the regulation must be met with respect to the swap, in order for the swap to be excluded from the swap dealer determination by the regulation. VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 hedging.216 For example, the exclusion expressly includes swaps hedging price risks arising from the potential change in value of existing or anticipated assets, liabilities, or services, if the hedger has an exposure to physical price risk. And, as in the bona fide hedging rule, the exclusion utilizes the word ‘‘several’’ to reflect that there is no requirement that swaps hedge risk on a one-to-one transactional basis in order to be excluded, but rather they may hedge on a portfolio basis.217 For these reasons, swaps that qualify as enumerated hedging transactions and positions are examples of the types of physical commodity swaps that are excluded from the swap dealer analysis if the rule’s requirements are met.218 This provision in the final rule is consistent with our overall interpretive approach to the definition of the term ‘‘swap dealer.’’ The interpretations of the statutory dealer definitions by both Commissions focus on a person’s activities in relation to its counterparties and other market participants.219 As 216 See CFTC Regulation § 151.5(a)(1). The definition of bona fide hedging in CFTC Regulation § 1.3(z), which applies for excluded commodities, is not relevant here, because it does not contain the requirement that the swap represents a substitute for a transaction made or to be made or a position taken or to be taken in a physical marketing channel, as required by CFTC Regulation § 1.3(ggg)(6)(iii)(B). We believe that this requirement is an important aspect of how principles from the bona fide hedging definition are useful in identifying swaps that are entered into for the purpose of hedging as opposed to other purposes. 217 See CFTC, Position Limits for Futures and Swaps; Final Rule, 76 FR 71626, 71649 (Nov. 18, 2011). 218 The swaps that qualify as enumerated hedging transactions and positions are those listed in CFTC Regulation § 151.5(a)(2) and appendix B to part 151. These examples are illustrative of the types of ‘‘assets,’’ ‘‘liabilities,’’ and ‘‘services’’ contemplated in CFTC Regulation § 1.3(ggg)(6)(iii), because the price risk arising from changes in their value could be offset or mitigated with a swap that represents a substitute for transactions made or to be made or positions taken or to be taken by the person at a later time in a physical marketing channel. To be clear, notwithstanding that a swap does not fit precisely within such examples, it may still satisfy CFTC Regulation § 1.3(ggg)(6)(iii). Regarding commenters’ queries about dynamic hedging, which one commenter described as the ability to modify the hedging structure related to physical assets or positions when relevant pricing relationships applicable to that asset change (see joint letter from WGCEF and CMC), we note that qualification as bona fide hedging has never been understood to require that hedges, once entered into, must remain static. We expect that entites would move to update their hedges periodically when pricing relationships or other market factors applicable to the hedge change. 219 See parts II.A.4.e and II.A.5.a, infra. For example, the conclusion that a person’s relationship with its counterparties can lead to associated obligations is consistent with the ‘‘shingle theory,’’ which implies a duty of fair dealing when a person hangs out its shingle to do business. See note 260, infra. PO 00000 Frm 00018 Fmt 4701 Sfmt 4700 noted above, for example, one indicator that a person enters into swaps as part of ‘‘a regular business’’ is that the person does so to satisfy the business or risk management needs of the counterparty. This aspect of the swap dealer analysis turns on the accommodation of a counterparty’s needs or demands. If a person enters into swaps for the purpose of hedging a physical position as defined in CFTC Regulation § 1.3(ggg)(6)(iii), by contrast, then the swap can be identified as not having been entered into for the purpose of accommodating the counterparty’s needs or demands.220 Also, a person’s activity of seeking out swap counterparties in order to hedge a physical position as defined in the rule generally would not warrant regulations to promote market stability and transparency or to serve the other purposes of dealer regulation.221 At the same time, however, there may be circumstances where a person’s activity of entering into swaps is encompassed by the statutory definition of the term ‘‘swap dealer,’’ notwithstanding that the swaps have the effect of hedging or mitigating the person’s commercial risk.222 Although these swaps could, in theory, be excluded from the swap dealer analysis, we believe that a broader, per se exclusion for all swaps that hedge or mitigate commercial risk is 220 In this way, the exclusion from the swap dealer analysis of swaps hedging physical positions as defined in CFTC Regulation § 1.3(ggg)(6)(iii) is similar to the exclusions, discussed below, of swaps between affiliates and swaps between a cooperative and its members. See CFTC Regulation § 1.3(ggg)(6)(i)(ii); see also part II.C, infra. However, to the extent a person engages in dealing activities involving swaps, the presence of offsetting positions that hedge those dealing activities would not excuse the requirement that the person register as a swap dealer. 221 Thus, the CFTC’s interpretation of the swap dealer definition in this regard draws upon principles in the dealer-trader distinction. See part II.A.4.a. Additional authority for CFTC Regulation § 1.3(ggg)(6)(iii) is provided by subparagraph (B) of the swap dealer definition. This subparagraph provides that a person ‘‘may be designated as a swap dealer for a single type or single class or category of swap or activities and considered not to be a swap dealer for other types, classes, or categories of swaps or activities.’’ CEA Section 1a(49)(B), 7 U.S.C. 1a(49)(B). It thereby authorizes a review of a person’s various activities with respect to swaps, and a determination that some of the person’s activities are covered by a designation as a swap dealer, while other of the person’s activities are not. Thus, a person who enters into some swaps for hedging physical positions as defined in CFTC Regulation § 1.3(ggg)(6)(iii), and also enters into other swaps in connection with activities covered by the swap dealer definition, could be designated as a swap dealer only for the latter activities. 222 For example, ‘‘pay floating/receive fixed’’ swaps entered into by a swap dealer with long exposure to the floating side of a market would have the effect of hedging the dealer’s exposure. E:\FR\FM\23MYR2.SGM 23MYR2 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES2 inappropriate for the swap dealer definition. First, the hedging exclusion that we are adopting is in the nature of a safe harbor; i.e., it describes activity that will not be considered swap dealing activity. As such, the CFTC believes that it is appropriate that the interim final rule not be cast broadly.223 This does not mean that other types of hedging activity that do not meet the requirements of the interim final rule are necessarily swap dealing activity. Rather, such hedging activity is to be considered in light of all other relevant facts and circumstances to determine whether the person is engaging in activity (e.g., accommodating demand for swaps, making a market for swaps, etc.) that makes the person a swap dealer. Second, the usefulness of an exclusion of all swaps that hedge or mitigate commercial risk for certain aspects of the major swap participant definition 224 is not a reason to use the same exclusion in the swap dealer definition, since the swap dealer definition serves a different function. The definition of the term ‘‘major swap participant,’’ which applies only to persons who are not swap dealers,225 is premised on the prior identification, by the swap dealer definition, of persons who accommodate demand for swaps, make a market in swaps, or otherwise engage in swap dealing activity. The major swap participant definition performs the subsequent function of identifying persons that are not swap dealers, but hold swap positions that create an especially high level of risk that could significantly impact the U.S. financial system.226 Only for this subsequent function is it appropriate to apply the broader exclusion of swaps held for the purpose of hedging or mitigating commercial risk.227 223 While we recognize that a rule delineating the swap activities that do not constitute swap dealing would simplify and make more certain, at least in some contexts, the application of the swap dealer definition, there are also reasons for caution in incorporating a categorical exclusion for hedging. 224 See part IV.C, infra. 225 See CEA § 1a(33)(A)(i), 7 U.S.C. 1a(33)(A)(i). 226 See CEA § 1a(33)(B), 7 U.S.C. 1a(33)(B). 227 We do not believe that the differences between the exclusion in the major participant definitions for swaps held for the purpose of hedging or mitigating commercial risk and the exclusion in the swap dealer definition for certain swaps entered into for the purpose of hedging risks related to physical positions mean that the Commissions, or the CFTC in particular, have implemented two different definitions of hedging. In fact, neither of these exclusions define the term ‘‘hedging.’’ Rather, the differences between the two exclusions reflect differences in the parameters that must be satisfied in order to ensure that hedging swaps are appropriately excluded from the two different definitions. VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 The CFTC believes that since the over-the-counter swap markets have operated largely without regulatory oversight and encompass swaps used for a wide variety of commercial purposes, no method has yet been developed to reliably distinguish, through a per se rule, between: (i) Swaps that are entered into for the purpose of hedging or mitigating commercial risk; and (ii) swaps that are entered into for the purpose of accommodating the counterparty’s needs or demands or otherwise constitute swap dealing activity, but which also have a hedging consequence.228 In contrast, the CFTC notes that it has set forth and modified standards for bona fide hedging transactions and granted exemptions in compliance with such standards for decades.229 These historicallydeveloped standards form the basis of the interim final rule excluding from the swap dealer analysis certain swaps that hedge the risks associated with a physical position. The exclusion in CFTC Regulation § 1.3(ggg)(6)(iii) depends not on the effect or consequences of the swap, but on whether the purpose for which a person enters into a swap is to hedge a physical position as defined in the rule. If so, then the swap is excluded from the dealer analysis because using swaps for that purpose is inconsistent with, and is not, dealing activity.230 On the other hand, if, at the time the swap is entered into, the person’s purpose for entering into the swap is not as defined in CFTC regulation § 1.3(ggg)(6)(iii), or if it is unclear whether the swap is for such purpose, then the fact that the swap hedges the person’s exposure in some regard does not preclude consideration of that swap in the dealer analysis.231 In this latter case, all relevant facts and circumstances regarding the swap and the person’s activity with respect to the swap would be relevant in the 228 As noted in the preceding paragraph, it is not necessary to make this distinction for purposes of the major swap participant definition. 229 See, e.g., 42 FR 42751 (Aug. 8, 1977). Although the latest formulation of the definition of bona fide hedging—CFTC Regulation § 151.5(a)— was recently adopted, see CFTC, Position Limits for Futures and Swaps; Final Rule and Interim Final Rule, 76 FR 71626 (Nov. 18, 2011), the bona fide hedging test has been in use for decades. 230 To be clear, the swaps a person enters into for hedging physical positions as defined in CFTC Regulation § 1.3(ggg)(6)(iii) are not indicative of dealing activity under any of the prongs of the swap dealer definition. 231 In this regard, CFTC Regulation § 1.3(ggg)(6)(iii) is different from certain of the CFTC’s rules regarding bona fide hedging, where a person’s purpose in entering into a swap may not be relevant. PO 00000 Frm 00019 Fmt 4701 Sfmt 4700 30613 determination of whether the person is a swap dealer.232 We believe that, based on the CFTC’s experience in applying bona fide hedging principles with respect to swaps hedging risks related to physical positions, the exclusion in CFTC Regulation § 1.3(ggg)(6)(iii) at this time is the best means of providing certainty to market participants regarding which swaps may be disregarded in the dealer analysis. However, commenters presented a range of views as to the exclusions from the dealer analysis that may be appropriate in this regard.233 Accordingly, the CFTC is implementing this exclusion on an interim rule basis and is seeking comments on all aspects of the interim rule, including any adjustments that may be appropriate in the rule or accompanying interpretive guidance. The CFTC also seeks comments on whether a different approach to swaps entered into for the purpose of hedging risk is appropriate to implement the statutory definition of the term ‘‘swap dealer.’’ For example, the CFTC invites commenters to address whether any exclusion of hedging swaps from the swap dealer analysis is appropriate, and if so, how swaps that are entered into for purposes of hedging may be identified and distinguished from other swaps. Commenters are encouraged to address whether it is relevant to distinguish swaps entered into for purposes of hedging from swaps that have a consequential result of hedging, and if so, how such swaps may be distinguished. Also, commenters may address whether the exclusion should be limited to swaps hedging risks related to physical positions or extended to encompass swaps hedging financial risks or other types of risks. Commenters should address whether the exclusion in CFTC Regulation § 1.3(ggg)(6)(iii) should be consistent with the exclusion in CFTC Regulation § 1.3(kkk). If so, why, and if not, why not? If the two exclusions should be consistent, does consistency require that that exclusions be identical, or would there be variations in application of the two exclusions? Are there market participants whose swap positions would be classified as held for the purpose of hedging or mitigating commercial risk under CFTC Regulation 232 We believe that, in practice, the difficulty of distinguishing, in applying the swap dealer definition, swaps entered into for the purpose of hedging from other types of swaps will be resolvable when the facts and circumstances of a person’s swap activities are taken into consideration in light of our interpretive guidance. 233 See, e.g., letters cited in note 141, supra. E:\FR\FM\23MYR2.SGM 23MYR2 30614 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations § 1.3(kkk) but would not qualify for the exclusion under CFTC Regulation § 1.3(ggg)(6)(iii)? If so, specifically identify the types of market participants and swaps. If the CFTC were to apply in the swap dealer definition the exclusion in CFTC Regulation § 1.3(kkk) in lieu of the exclusion in CFTC Regulation § 1.3(ggg)(6)(iii), would there be negative market impacts? If so, what are they? Would there be positive market impacts? If so, what are they? In particular, what type(s) of swaps that ‘‘hedge or mitigate commercial risk,’’ but that are not excluded under the interim rule, may constitute dealing activity in light of the rules and interpretive guidance regarding the swap dealer definition set forth in this Adopting Release? Comments regarding the costs and benefits related to the interim final rule and any alternative approaches, including in particular the quantification of such costs and benefits, are also invited. Commenters are encouraged, to the extent feasible, to be comprehensive and detailed in providing their approach and rationale. The comment period for the interim final rule will close July 23, 2012. mstockstill on DSK4VPTVN1PROD with RULES2 f. Swaps Entered Into by Persons Registered as Floor Traders Commenters discussed whether the swap dealer definition encompasses the activity of entering into swaps on or subject to the rules of a DCM or SEF, and submitted for clearing to a derivatives clearing organization (‘‘DCO’’), particularly when firms engage in that activity using only proprietary funds.234 Because Title VII of the Dodd-Frank Act amended the definition of floor trader specifically to encompass activities involving swaps,235 the CFTC believes that it would lead to potentially duplicative 234 See letter from Trading Coalition. One commenter specifically discussed floor traders and floor brokers and the regulatory regime that should apply to them following implementation of the Dodd Frank Act. See letter from Christopher K. Hehmeyer. We note that other commenters suggested that all swaps cleared on an exchange should be excluded from the dealer definitions. See letters cited in note 138, supra. However, the discussion here is limited to persons who are registered as floor traders and meet other conditions. Also, the final rule provision discussed here does not exclude floor traders from the definition of the term ‘‘swap dealer;’’ rather, it provides that if the stated conditions are met, certain swaps entered into by floor traders are excluded from the swap dealer analysis. 235 See section 721(a)(11) of the Dodd-Frank Act (amending the definition of the term ‘‘floor trader’’ in CEA section 1a(23)). The Exchange Act does not have an equivalent regulatory category to floor trader under the CEA, and thus Congress did not make a similar amendment to the Exchange Act. VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 regulation if floor traders engaging in swaps in their capacity as floor traders were also required to register as swap dealers. Accordingly, the CFTC believes that it is appropriate not to consider such swaps when determining whether a person acting as a floor trader, as defined under CEA section 1a(23),236 and registered with the CFTC under CFTC Regulation § 3.11, is a swap dealer if the floor trader meets certain conditions. Specifically, the final rule provides that, in determining whether a person is a swap dealer, each swap that the person enters into in its capacity as a floor trader as defined by CEA section 1a(23) or on a SEF shall not be considered for the purpose of determining whether the person is a swap dealer, provided that the person: (i) Is registered with the CFTC as a floor trader pursuant to CFTC Regulation § 3.11; (ii) enters into swaps solely with proprietary funds for that trader’s own account on or subject to the rules of a DCM or SEF, and submits each such swap for clearing to a DCO; (iii) is not an affiliated person of a registered swap dealer; (iv) does not directly, or through an affiliated person, negotiate the terms of swap agreements, other than price and quantity or to participate in a request for quote process subject to the rules of a DCM or SEF; (v) does not directly or through an affiliated person offer or provide swap clearing services to third parties; (vi) does not directly or through an affiliated person enter into swaps that would qualify as hedging physical positions pursuant to CFTC Regulation § 1.3(ggg)(6)(iii) or hedging or mitigating commercial risk pursuant to CFTC Regulation § 1.3(kkk), with the exception of swaps that are executed opposite a counterparty for which the transaction would qualify as a bona fide hedging transaction; (vii) does not participate in any market making program offered by a DCM or SEF; and (viii) complies with the record keeping and risk management requirements of CFTC Regulation §§ 23.201, 23.202, 23.203, and 23.600 with respect to each such swap as if it were a swap dealer.237 This rule permits floor traders who might otherwise be required to register 236 The definition of the term ‘‘floor trader’’ includes a person entering into swaps on a ‘‘contract market.’’ See CEA section 1a(23). This exclusion also encompasses swaps that a registered floor trader enters into on or subject to the rules of a SEF, in addition to on or subject to the rules of a DCM, so long as the swap meets the conditions stated in the exclusion. 237 See CFTC Regulation § 1.3(ggg)(6)(iv). PO 00000 Frm 00020 Fmt 4701 Sfmt 4700 as a swap dealer to be registered solely as floor traders with the CFTC. Given the limitations on the scope of the rule, the requirements for floor traders using the relief to comply with recordkeeping and risk management rules applicable to swap dealers as a condition of the relief, and the fact that swaps subject to the rule are traded on a DCM or SEF and cleared through a DCO, the CFTC believes it is not necessary to have floor traders subject to this rule register as both floor traders and swap dealers as a result of swaps activities covered by the rule.238 g. Additional Interpretive Issues Relating to the ‘‘Swap Dealer’’ Definition As noted above, the Commissions, in consideration of comments received, are making certain modifications to the interpretive guidance concerning the definition of the term ‘‘swap dealer’’ set out in the Proposing Release. However, the Commissions are retaining certain elements of their proposed interpretation of the term ‘‘swap dealer,’’ as discussed below. First, with respect to the comments asserting that the proposed interpretive approach is overly broad,239 we note that the statute provides that the term ‘‘swap dealer’’ means ‘‘any person’’ who engages in the activities described in any of the four prongs of the definition, subject to the exceptions and qualifications set out in the statute. In view of this statutory text, these comments effectively assert that the statute should be interpreted to include preconditions to swap dealer status that are not set forth in the statute. For example, the assertion that the swap dealer definition must be limited to persons who enter into swaps on both sides of the market would impose a requirement that does not exist in the statute. Similarly, the comments to the effect that swap dealers are only those persons who seek to profit by intermediating between swap market participants adds a requirement not set forth in the statute. We believe, though, that the activities that cause a person to be covered by the 238 The Commissions note the rule applies only to CFTC-registered floor traders engaging in swaps on DCMs or SEFs and cleared through DCOs. As noted above, the SEC does not have a regulatory category under the Exchange Act equivalent to floor trader under the CEA and none of these provisions apply in the context of security-based swap dealers or any entity regulated under the Exchange Act. Any person engaging in security-based swap transactions, whether or not these activities are similar to those engaged in by floor traders, will need to independently consider whether they need to register as security-based swap dealers as a result of their activities. 239 See letters cited at notes 83 to 84, supra. E:\FR\FM\23MYR2.SGM 23MYR2 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES2 swap dealer definition should be addressed in the context of the four prongs of the statutory definition. That is, the relevant question is whether a person engages in any of the types of activities enumerated in the statute, and not whether the person meets any additional, supposedly implicit preconditions to swap dealer status. Second, the Commissions continue to believe, as stated in the Proposing Release, that accommodating demand and facilitating interest are appropriately used as factors in identifying swap dealers. As noted by commenters, however, the mere fact that a person entering into a particular swap has the effect of ‘‘accommodating demand’’ or ‘‘facilitating interest’’ in swaps does not conclusively establish that the person is a swap dealer. Instead, the person’s overall activities in the swap market (or particular sector of the swap market if the person is active in a variety of sectors) should be compared against these factors. If, in the context of its overall swap activities, a person fulfills a function of accommodating demand or facilitating interest in swaps for other parties, then these factors would be significant in the analysis and the person is likely to be a swap dealer.240 Third, as discussed above, we have adopted some of the objective criteria suggested by commenters with respect to the indicia of holding oneself out as a dealer or being commonly known as a dealer, market making, and the ‘‘regular business’’ prongs of the swap dealer definition.241 For instance, allocating staff and technological resources to swap activity, deriving revenue and profit from swap activity, or responding to customer-initiated orders for swaps can all be indicative of having ‘‘a regular business’’ of entering into swaps and, therefore, indicative of being a swap dealer. In addition, activities such as providing advice about swaps or offering oneself as a 240 The language of the four statutory tests for swap dealer status (which refer to a person who holds itself out as a dealer, is commonly known as a dealer, makes a market in swaps or regularly enters into swaps with counterparties) contemplate that a dealer is a person who, through its swap activities, functions to create legal relationships that transfer risk between independent persons. See CEA section 1a(49)(A), 7 U.S.C. 1a(49)(A). See also Proposing Release, 75 FR at 80177 (describing swap dealers as those persons whose function is to serve as the points of connection in the swap markets); letter from COPE I at 4 (‘‘Simply stated, dealers are in the regular business of being a point of connection to the market for others that need access to the market to hedge risk.’’): Roundtable Transcript at 21 (remarks of Richard Ostrander, Morgan Stanley; ‘‘a dealer is someone who is out there willing to enter into trades’’). 241 See part II.B.2.d.iii, supra. VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 point of connection to other parties needing access to the swap market are indicative of a person holding itself out as a swap dealer, if the person also enters into swaps in conjunction with such activities. The guidance we have provided about these indicia is responsive to concerns expressed by commenters about the application of the swap dealer definition to energy markets. As described above, some commenters stated that in energy markets, unlike in some other markets, end-users often enter into swaps directly with each other, on both sides of the market, without the involvement of a separate category of businesses serving as intermediaries.242 As a result, according to these commenters, energy swap market participants often engage in some of the activities that are indicative of swap dealer status. Some of these commenters contended that our activitybased interpretation of the swap dealer definition could therefore result in the inappropriate inclusion of energy market participants in the coverage of the definition of the term ‘‘swap dealer.’’ 243 We believe that the language of the statutory ‘‘swap dealer’’ definition supports our activity-based interpretation and does not support categorical exclusions of particular types of persons from the ‘‘swap dealer’’ definition based on the general nature of their businesses. Further evidence that such a categorical exclusion is unwarranted is provided by the fact that a number of energy market participants—BP Plc., Cargill, Incorporated, Centrica Energy Limited, ConocoPhillips, EDF Trading Limited, GASELYS, Hess Energy Trading Company, LLC, Hydro-Quebec, Koch Supply & Trading, LP, RWE Supply & Trading GmbH, Shell Energy North America (US), L.P., STASCO, Totsa Total Oil Trading S.A., and Vattenfall Energy Trading Netherlands N.V.—have voluntarily joined ISDA as primary dealers.244 As previously noted, any 242 See parts II.A.2.f.ii and iii, supra. letters cited in note 117, supra. Comments expressing concern that the definition of the term ‘‘swap dealer’’ could include physical commodities businesses also were presented to Congress during consideration of legislation leading to passage of the Dodd-Frank Act. See Proposed Legislation by the U.S. Department of the Treasury Regarding the Regulation of Over-The-Counter Derivatives Markets: Hearing Before the H. Comm. On Agriculture, 111th Cong. 103 (2009) (submitted report on behalf of the Working Group of Commercial Energy Firms). However, as noted above, there is no exclusion in the statutory definition for such businesses. 244 The list of ISDA Primary Members is available at https://www.isda.org/membership/ isdamemberslist.pdf. 243 See PO 00000 Frm 00021 Fmt 4701 Sfmt 4700 30615 business organization that ‘‘deals in derivatives shall be eligible for election to membership in the Association as a primary member, provided that no person or entity shall be eligible for membership as a Primary Member if such person or entity participates in derivatives transactions solely for the purpose of risk hedging or asset or liability management.’’ 245 Hence, a categorical exclusion from the ‘‘swap dealer’’ definition based on any particular type of business or general market activity also would be inconsistent with current industry structure and practice. At the same time, however, the fact that a person engages in some swap activities that are indicative of swap dealer status does not, by itself, mean that the person is covered by the definition of the term ‘‘swap dealer.’’ The ‘‘not as part of a regular business’’ exception and our guidance about its meaning address the issue of swap market participants that engage to some extent in the activities characteristic of swap dealers. The guidance we have provided here therefore provides the appropriate approach to addressing these issues in energy markets as elsewhere. Although several commenters attempted to articulate bright-line tests that would differentiate swap dealers from other swap market participants, the suggested bright-line tests generally could not be applied across the board to all types of swap market activity. For example, some commenters suggested that swap dealers can be identified as those who profit from entering into swaps on both sides of the market (and under the interpretive approach set forth in this Adopting Release, such activity may be an indicator of swap dealing).246 But other commenters said that, in certain circumstances, entering into swaps on both sides of the market is not necessarily indicative of swap dealing.247 The ways in which participants throughout the market use swaps are simply too diverse for swap dealer status to be resolved with a single, onefactor test. This is reflected in the statutory definition of the term ‘‘swap dealer’’ itself. Focused as it is on types of activities, with four prongs set forth in the alternative to cover different types of swap dealing activity, the statutory swap dealer definition is not susceptible to the bright-line test that 245 See note 188, supra. letters cited in note 84, supra. 247 See letters cited in note 86, supra. As noted above in the discussion of market making, a swap dealer may in some circumstances enter into swaps on only one side of the market. 246 See E:\FR\FM\23MYR2.SGM 23MYR2 30616 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations some commenters seek. For these reasons, we continue to believe that it is appropriate to apply the multi-factor interpretive approach set forth in this Adopting Release. In closing, we emphasize that the purpose of in this part IV.A.4 is to provide guidance as to how the rules further defining the term ‘‘swap dealer’’ will be applied in particular, complex situations where a person’s status as a swap dealer may be uncertain. Even though bright-line tests and categorical exclusions are inappropriate, we recognize that the large majority of market participants use swaps for normal course hedging, financial, investment or trading purposes and are not swap dealers. 5. Final Rules and Interpretation— Definition of ‘‘Security-Based Swap Dealer’’ a. General Reliance on the Dealer-Trader Distinction As discussed above, we are adopting a rule under the Exchange Act that defines ‘‘security-based swap dealer’’ in terms of the four statutory tests and the exclusion for security-based swap activities that are not as part of a ‘‘regular business.’’ 248 Also, we believe that the dealer-trader distinction 249— which already forms a basis for identifying which persons fall within the longstanding Exchange Act definition of ‘‘dealer’’—in general provides an appropriate framework for interpreting the meaning of ‘‘securitybased swap dealer.’’ 250 While there are differences in the structure of those two statutory definitions,251 we believe that 248 See Exchange Act rule 3a71–1(a), (b). note 31, supra. 250 The principles embedded within the ‘‘dealertrader distinction’’ are not solely useful for distinguishing persons who constitute dealers from active ‘‘traders,’’ but also are applicable to distinguishing dealers from non-dealers such as hedgers or investors. The ‘‘dealer-trader’’ nomenclature has been used for decades. See Loss, Securities Regulation 722 (1st ed. 1951) (‘‘One aspect of the ‘business’ concept is the matter of drawing the line between a ‘dealer’ and a trader— an ordinary investor who buys and sells for his own account with some frequency.’’). 251 For example, while the ‘‘dealer’’ definition encompasses certain persons in the business of ‘‘buying and selling’’ securities, the ‘‘security-based swap dealer’’ definition does not address either ‘‘buying’’ or ‘‘selling.’’ As we noted in the Proposing Release, we do not believe that the lack of those terms in the ‘‘security-based swap dealer’’ definition leads to material interpretive distinctions, as the Dodd-Frank Act amended the Exchange Act definitions of ‘‘buy’’ and ‘‘purchase,’’ and the Exchange Act definitions of ‘‘sale’’ and ‘‘sell,’’ to encompass the execution, termination (prior to its scheduled maturity date), assignment, exchange or similar transfer or conveyance of, or extinguishing of rights or obligations under, a security-based swap. See Proposing Release, 75 FR at 80178 n.26 (citing Dodd-Frank Act sections mstockstill on DSK4VPTVN1PROD with RULES2 249 See VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 their parallels—particularly both definitions’ exclusions for activities that are ‘‘not part of a regular business’’— warrant analogous interpretive approaches for distinguishing dealers from non-dealers. As discussed above,252 the Commissions note that interpretations of the applicability of the dealer-trader distinction to the ‘‘swap dealer’’ definition under the CEA do not affect existing, or future, interpretations of the dealer-trader distinction under the Exchange Act—both with regard to the ‘‘security-based swap dealer’’ definition, and with regard to the ‘‘dealer’’ definition. In interpreting the security-based swap dealer definition in terms of the dealer-trader distinction, the Commissions have been mindful that some commenters expressed the view that we instead should rely on other interpretive factors that were identified in the Proposing Release (e.g., accommodating demand). We believe, nonetheless, that the dealer-trader distinction forms the basis for a framework that appropriately distinguishes between persons who should be regulated as security-based swap dealers and those who should not. We also believe that the distinction affords an appropriate degree of flexibility to the analysis, and that it would not be appropriate to seek to codify the distinction. At the same time, the Commissions recognize that the dealer-trader distinction needs to be adapted to apply to security-based swap activities in light of the special characteristics of securitybased swaps and the differences between the ‘‘dealer’’ and ‘‘securitybased swap dealer’’ definitions. Relevant differences include: • Level of activity—Security-based swap markets are marked by less activity than markets involving certain other types of securities (while recognizing that some debt and equity securities are not actively traded). This suggests that in the security-based swap context concepts of ‘‘regularity’’ should account for the level of activity in the market. • No separate issuer—Each counterparty to a security-based swap in essence is the ‘‘issuer’’ of that 761(a)(3), (4), which amend Exchange Act sections 3(a)(13), (14)). At the same time, we note that the ‘‘dealer’’ definition requires the conjunctive ‘‘buying and selling’’—which connotes a degree of offsetting twosided activity. In contrast, the ‘‘security-based swap dealer’’ definition (particularly the ‘‘regularly enters into security-based swaps’’ language of the definition’s third test) lacks that conjunctive terminology. 252 See note 171, supra. PO 00000 Frm 00022 Fmt 4701 Sfmt 4700 instrument; in contrast, dealers in cash market securities generally transact in securities issued by another party. This distinction suggests that the concept of turnover of ‘‘inventory’’ of securities, which has been identified as a factor in connection with the dealer-trader distinction, is inapposite in the context of security-based swaps. Moreover, this distinction—along with the fact that the ‘‘security-based swap dealer’’ definition lacks the conjunctive ‘‘buying and selling’’ language of the ‘‘dealer’’ definition 253—suggests that concepts of two-sided markets at times would be less relevant for identifying ‘‘securitybased swap dealers’’ than they would be for identifying ‘‘dealers.’’ 254 • Predominance of over-the-counter and non-standardized instruments— Security-based swaps thus far are not significantly traded on exchanges or other trading systems, in contrast to some cash market securities (while recognizing that many cash market securities also are not significantly traded on those systems).255 These attributes—along with the lack of ‘‘buying and selling’’ language in the security-based swap dealer definition, as noted above—suggest that concepts of what it means to make a market need to be construed flexibly in the context of the security-based swap market.256 • Mutuality of obligations and significance to ‘‘customer’’ relationship—In contrast to a secondary market transaction involving equity or debt securities, in which the completion of a purchase or sale transaction can be expected to terminate the mutual obligations of the parties to the 253 See note 251, supra. analysis also should account for the fact that a party to a security-based swap can use other derivatives or cash market instruments to hedge the risks associated with the security-based swap position, meaning that two-way trading is not necessary to maintain a flat risk book. 255 Even though we expect trading of securitybased swaps on security-based swap execution facilities or exchanges following the implementation of Title VII, we expect there to remain a significant amount of over-the-counter activity involving security-based swaps. 256 For example, the definition of ‘‘market maker’’ in Exchange Act section 3(a)(38)—which is applicable for purposes of the Exchange Act ‘‘unless the context otherwise requires’’ (see Exchange Act section 3(a))—defines the term ‘‘market maker’’ to mean ‘‘any specialist permitted to act as a dealer, any dealer acting in the capacity of block positioner, and any dealer who, with respect to a security, holds himself out (by entering quotations in an inter-dealer communications system or otherwise) as being willing to buy and sell such security for his own account on a regular or continuous basis.’’ That definition is useful in the context of systems in which standardized securities are regularly or continuously bought and sold, but would not be apposite in the context of nonstandardized securities or securities that are not regularly or continuously transacted. 254 The E:\FR\FM\23MYR2.SGM 23MYR2 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES2 transaction, the parties to a securitybased swap often will have an ongoing obligation to exchange cash flows over the life of the agreement. In light of this attribute, some market participants have expressed the view that they have ‘‘counterparties’’ rather than ‘‘customers’’ in the context of their swap activities. It also is necessary to use the dealertrader distinction to interpret the security-based swap dealer definition so that the statutory provisions that will govern security-based swap dealers are applied in an effective and logical way. Those statutory provisions added by the Dodd-Frank Act advance financial responsibility (e.g., the ability to satisfy obligations, and the maintenance of counterparties’ funds and assets) associated with security-based swap dealers’ activities,257 other counterparty protections,258 and the promotion of market efficiency and transparency.259 As a whole, the relevant statutory provisions suggest that we should apply the dealer-trader distinction to interpret the security-based swap dealer definition in a way that identifies those persons for which regulation is warranted either: (i) Due to the nature of their interactions with counterparties; 260 or (ii) to promote 257 E.g., capital and margin requirements (Exchange Act section 15F(e)), and requirements for segregation of collateral (Exchange Act section 3E). 258 E.g., requirements with respect to business conduct when transacting with special entities (Exchange Act sections 15F(h)(2), (h)(4), (h)(5)); disclosure requirements (Exchange Act section 15F(h)(3)(B)); requirements for fair and balanced communications (Exchange Act section 15F(h)(3)(C)); other requirements related to the public interest and investor protection (Exchange Act section 15F(h)(3)(D)); and conflict of interest provisions (Exchange Act section 15F(j)(5)). 259 E.g., reporting and recordkeeping requirements (Exchange Act section 15F(f)); daily trading records requirements (Exchange Act section 15F(g)); regulatory standards related to the confirmation, processing, netting, documentation and valuation of security-based swaps (Exchange Act section 15F(i)); position limit monitoring requirements (Exchange Act section 15F(j)(1)); risk management procedure requirements (Exchange Act section 15F(j)(2)); and requirements related to the disclosure of information to regulators (Exchange Act section 15F(j)(3)). 260 The conclusion that a person’s relationship with its counterparties can lead to associated obligations is consistent with the ‘‘shingle theory,’’ which implies a duty of fair dealing when a person hangs out its shingle to do business. See Securities and Exchange Commission, Report of the Special Study of Securities Market Part I at 238 (1963) (‘‘An obligation of fair dealing, based upon the general antifraud provisions of the Federal securities laws, rests upon the theory that even a dealer at arm’s length impliedly represents when he hangs out his shingle that he will deal fairly with the public.’’; footnote omitted); Weiss, Registration and Regulation of Brokers and Dealers 171 (1965) (‘‘the solicitation and acceptance by a broker-dealer of orders from customers and the confirmation of transactions do constitute a representation by the broker-dealer that he will deal fairly with his VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 market stability and transparency, in light of the role those persons occupy within the security-based swap markets.261 b. Principles for Applying the DealerTrader Distinction to Security-Based Swap Activity In light of the statutory security-based swap dealer definition, statutory provisions applicable to security-based swap dealers and market characteristics addressed above, the Commissions believe that the factors set forth below are relevant for identifying securitybased swap dealers and for distinguishing those dealers from other market participants. This guidance seeks to address commenter requests that we further clarify the scope of the security-based swap dealer definition, and the Commissions believe that these factors provide appropriate guidance without being inflexible or allowing the opportunity for evasion that may accompany a bright-line test. At the same time, the determination of whether a person is acting as a security-based swap dealer ultimately depends on the relevant facts and circumstances. In light of the overall context in which a person’s activity occurs, the absence of one or more of these factors does not necessitate the conclusion that a person is not a security-based swap dealer.262 • Providing liquidity to market professionals or other persons in connection with security-based swaps. A market participant might manifest this indication of dealer activity by accommodating demand or facilitating interest expressed by other market participants,263 holding itself out as willing to enter into security-based swaps, being known in the industry as being available to accommodate demand customers and that such transactions will be handled promptly in the usual manner, in accordance with trade custom’’). 261 The importance of regulating dealers due to the centrality of their market role was illustrated by the Government Securities Act of 1986. When Congress provided for the regulation of government securities dealers, Congress specifically cited the lack of regulation as contributing to the failures of several unregulated government securities dealers. See S. Rep. No. 99–426 (1986), as reprinted in 1986 U.S.C.C.A.N. 5395, 5400–04. The resulting statute provided for a definition of ‘‘government securities dealer’’ that in relevant part is parallel to the definitions of ‘‘dealer’’ and ‘‘security-based swap dealer,’’ particularly with regard to sharing an exclusion for activities that are not part of a ‘‘regular business.’’ See Exchange Act section 3(a)(44). 262 Similarly, depending on the relevant facts and circumstances, the presence of certain of the illustrative activities described here does not necessitate the conclusion that the entity is a dealer. 263 This is to be distinguished from an entity entering into security-based swaps for other business purposes, such as to gain economic exposure to a particular market. PO 00000 Frm 00023 Fmt 4701 Sfmt 4700 30617 for security-based swaps, or maintaining a sales force in connection with security-based swap activities.264 • Seeking to profit by providing liquidity in connection with securitybased swaps. A market participant may manifest this indication of securitybased swap dealer activity—which is consistent with the definition’s ‘‘regular business’’ requirement—by seeking compensation in connection with providing liquidity involving securitybased swaps (e.g., by seeking a spread, fees or other compensation not attributable to changes in the value of the security-based swap).265 The Commissions do not believe that this necessarily requires that a person be available to take either side of the market at any time, or that a person continuously engage in this type of activity, to be a security-based swap dealer. Although one commenter expressed the view that the securitybased swap dealer definition requires that a person be consistently available to take either side of the market,266 in our view such an approach would be underinclusive.267 264 A sales force, however, is not a prerequisite to a person being a security-based swap dealer. For example, a person that enters into security-based swaps in a dealing capacity can fall within the dealer definition even if it uses an affiliated entity to market and/or negotiate those security-based swaps (e.g., the person is a booking entity). Depending on the applicable facts and circumstances, the affiliate that performs the marketing and/or negotiation functions may fall within the Exchange Act’s definition of ‘‘broker’’ (which was not revised by Title VII). See Exchange Act section 3(a)(4)(A). 265 Indicia of this objective may include, but would not be limited to, maintaining separate profit/loss statements in connection with this type of activity, and/or devoting staff and resources to this type of activity. In this regard, we believe that the issue of whether a person tends to take the prices offered in the market, rather than helping to set those prices (such as by providing quotes, placing limit orders, or otherwise accommodating demand), can be relevant as a factor for distinguishing security-based swap dealers from non-dealers. At the same time, we are mindful that a dealer may also accept the market price as part of its dealer activity (such as when a person enters into a security-based swap to offset the risk it assumes in connection with its security-based swap dealing activity); as a result, the fact that a person regularly takes the market price as part of its security-based swap transactions does not foreclose the possibility that the person may be a security-based swap dealer. 266 See letter from ISDA I. 267 It is possible for a dealer to be compensated for providing liquidity by entering into sequential offsetting positions, or by hedging the securitybased swap position by using a different type of security-based swap, a swap or some other financial instrument. Accordingly, a rule of decision that permitted a person to avoid dealer regulation by providing liquidity in connection with securitybased swaps, and laying off the associated risk using a different type of security-based swap, a swap or a different instrument entirely, would be susceptible to abuse. Moreover, as noted above, the E:\FR\FM\23MYR2.SGM Continued 23MYR2 30618 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES2 • Providing advice in connection with security-based swaps or structuring security-based swaps. Advising a counterparty as to how to use securitybased swaps to meet the counterparty’s hedging goals, or structuring securitybased swaps on behalf of a counterparty, also would indicate security-based swap dealing activity. It particularly is important that persons engaged in those activities are appropriately regulated so that their counterparties will receive the protections afforded by certain of the statutory business conduct rules (e.g., special entity requirements and communication requirements) 268 applicable to security-based swap dealers.269 The Commissions recognize commenter concerns that end-users may definition of ‘‘security-based swap dealer’’ does not contain the ‘‘buying and selling’’ language found in the general Exchange Act definition of ‘‘dealer.’’ Thus, while being regularly willing to enter into either side of the security-based swap market would suggest that a person is engaged in dealing activity, the absence of such activity should not necessarily lead to an inference that a person is not acting as a dealer. We also note that some commenters have stated that two-way quoting by itself should not necessarily be enough to make a person a dealer, and some of those commenters specifically stated that a person may use two-sided quotes as part of the price discovery process or to elicit trading interest. See, e.g., letter from MFA I. Here too, it is important to consider whether the activity also has a dealing business purpose, such as seeking to profit by providing liquidity. Moreover, all participants in the security-based swap market, whether or not security-based swap dealers, should be mindful of the potential application of the antifraud and anti-manipulation provisions of the federal securities laws to such activities. Section 10(b) of the Exchange Act and Exchange Act rule 10b-5 particularly prescribe the use of any manipulative or fraudulent device in connection with the purchase or sale of any security, which includes manipulative trading. See Terrance Yoshikawa, Securities Exchange Act Release No. 53731 (Apr. 26, 2006), 87 SEC Docket 2924, 2930– 31 & n.19 (citing Ernst & Ernst v. Hochfelder, 425 U.S. 185, 199 (1976)). The SEC has characterized manipulation as ‘‘the creation of deceptive value or market activity for a security, accomplished by an intentional interference with the free forces of supply and demand.’’ See Swartwood, Hesse, Inc., 50 S.E.C. 1301, 1307 (1992) (citing Hochfelder, 425 U.S. at 199; Schreiber v. Burlington Northern, Inc., 472 U.S. 1 (1985); Feldbaum v. Avon Products, Inc., 741 F.2d 234 (8th Cir. 1984)). 268 The SEC has proposed rules to implement Title VII provisions relating to external business conduct standards for security-based swap dealers (as well as major security-based swap participants). See Exchange Act Release No. 64766 (June 29, 2011), 76 FR 42396 (July 18, 2011). 269 This factor would also reasonably take into account whether a preexisting relationship involving other types of securities or other financial instruments is present. For example, to the extent a person has an existing broker or dealer relationship with a counterparty in connection with other types of securities, and also enters into a security-based swap with that counterparty, a reasonable inference would be that the person entered into the security-based swap in a dealer capacity. Any other approach would invite abuse, as persons could seek to leverage existing relationships of trust while avoiding regulation as a security-based swap dealer. VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 also develop new types of securitybased swaps,270 but also recognize that the activities of end-users related to the structuring of security-based swaps for purposes of hedging commercial risk are appreciably different than being in the business of structuring security-based swaps on behalf of a counterparty. • Presence of regular clientele and actively soliciting clients. These dealertrader factors would reasonably appear to be applicable in the security-based swap context, just as they are applicable in the context of other types of securities, as indicia of a business model that seeks to profit by providing liquidity. The Commissions are mindful that some industry participants have highlighted a distinction between ‘‘counterparties’’ and ‘‘customers’’ in connection with swaps, and have suggested that they have no ‘‘customers’’ in the swap context. We do not believe such points of nomenclature are significant for purposes of identifying security-based swap dealers, however.271 • Use of inter-dealer brokers. As with activities involving other types of securities, the Commissions would expect that a person’s use of an interdealer broker in connection with security-based swap activities to be an indication of the person’s status as a dealer. • Acting as a market maker on an organized security-based swap exchange or trading system. Acting in a market maker capacity on an organized exchange or trading system for securitybased swaps would indicate that the person is acting as a dealer.272 While the Commissions recognize that some commenters have expressed the view that persons who solely enter into security-based swaps on an organized security-based swap exchange or trading system should not be regulated as 270 See letter from FSR I. purposes of the dealer-trader analysis, as it applies in the context of security-based swaps or any other security, we would not expect contractual provisions stating that the counterparty is not relying on the person’s advice to have any significance. 272 Under the proposal of the SEC, the Board, the OCC and the FDIC to implement the provisions of section 619 of the Dodd-Frank Act (also known as the ‘‘Volcker Rule’’), a person who claims the benefit of the market maker exception to that section’s prohibitions and restrictions on proprietary trading in connection with securitybased swap activities would be required to register with the SEC as a security-based swap dealer, unless the person is exempt from registration or is engaged in a dealing business outside the U.S., and is subject to substantive regulation in the jurisdiction where the business is located. See Securities Exchange Act Release No. 65545, 76 FR 68846, 68947 (Nov. 7, 2011) (proposed implementing rule § ___.4(b)(2)(iv)(C)). 271 For PO 00000 Frm 00024 Fmt 4701 Sfmt 4700 security-based swap dealers,273 in our view such an approach would be contrary to the express language of the definition. This is not to say, of course, that the presence of an organized exchange or trading system is a prerequisite to being a market maker for purposes of the security-based swap dealer definition.274 Moreover, acting as a market maker is not a prerequisite to being a security-based swap dealer.275 On the other hand, being a member of an organized exchange or trading system for purposes of trading security-based swaps does not necessarily by itself make a person a security-based swap dealer.276 As with the current application of the dealer-trader distinction to the Exchange Act ‘‘dealer’’ definition, the question of whether a person is acting as a security-based swap dealer ultimately will turn upon the relevant facts and circumstances, as informed by these criteria. c. Additional Interpretive Issues Activity by hedgers. As noted above, a number of commenters raised concerns that an overbroad ‘‘securitybased swap dealer’’ definition would inappropriately encompass persons 273 See, e.g., letter from Traders Coalition. the current nature of the security-based swap market, including the present level of activity and the present lack of significant trading of security-based swaps on exchanges or organized trading systems, we believe that it would negate the legislative intent to interpret the definition’s use of market making concepts to require the same use of quotation media that are incorporated into the interpretation of market making concepts in the context of securities that are actively traded on an organized exchange or trading system. At the same time, we recognize that routine activity in the security-based swap market is not necessarily indicative of making a market in security-based swaps. For example, persons may routinely be active in the market for purposes of hedging, to advance their investment objectives, or to engage in proprietary trading. 275 The definition of ‘‘security-based swap dealer’’ contains four alternative tests, only two of which use market making terminology. Moreover, the third test of the security-based swap dealer definition— which addresses persons who regularly enter into security-based swaps as an ordinary course of business for their own account—appears particularly inapt as a proxy for market making activity. Transacting with customers is not an element of this alternative test. A person thus may be a security-based swap dealer even if it transacts exclusively with other market professionals. Cf. OCC, ‘‘Risk Management of Financial Derivatives’’ 3–4 (1997) (stating that OCC has classified banks as ‘‘Tier I’’ dealers if they act as market makers by ‘‘providing quotes to other dealers and brokers, and other market professionals’’). Compare letter from ISDA I (taking the view that the dealer definition should be interpreted in the context of marketmaking concepts). 274 Given 276 The analysis of the status of members of such exchanges and trading systems in part may be influenced by the final Exchange Act rules that govern such systems, as well as the internal rules of such systems. E:\FR\FM\23MYR2.SGM 23MYR2 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations using security-based swaps for hedging purposes.277 As we stated in the Proposing Release, however, under the dealer-trader distinction the Commissions would expect persons that use security-based swaps to hedge their business risks, absent other activity, likely would not be dealers.278 We maintain that view. In other words, to the extent that a person engages in security-based swap activity to hedge commercial risk, or otherwise to hedge risks unrelated to activities that constitute dealing under the dealertrader distinction (particularly activities that have the business purpose of seeking to profit by providing liquidity in connection with security-based swaps), the Commissions would not expect those hedging transactions to lead a person to be a security-based swap dealer.279 Of course, to the extent a person engages in dealing activities involving security-based swaps, the presence of offsetting positions that hedge those dealing activities would not excuse the requirement that the person register as a security-based swap dealer.280 No predominance test. As discussed in the Proposing Release, the Commissions do not believe that the security-based swap dealer analysis should appropriately turn upon whether a person’s dealing activity constitutes that person’s sole or predominant business. The separate de minimis exemption, however, may have the effect of excusing from dealer regulation those persons whose security-based 277 See, e.g., letter from Church Alliance. Proposing Release, 75 FR at 80178 n.27. The Proposing Release also noted that if a person’s other activities satisfy the definition of securitybased swap dealer, the person must comply with the applicable requirements with regard to all of its security-based swap activities, absent an order to the contrary. We further noted in the Proposing Release that we would expect end-users to use security-based swaps for hedging purposes less commonly than they use swaps for hedging purposes. 279 In addition, consistent with the exclusion from the dealer analysis of activities involving majority-owned affiliates, see part II.C, infra, to the extent that a person engages in activities to hedge positions subject to the inter-affiliate exclusion, absent other activity, the Commission would not expect those hedging transactions to lead a person to be a security-based swap dealer. Conversely, security-based swap activities connected with the indicia of dealing discussed above (e.g., seeking to profit by providing liquidity in connection with security-based swaps) themselves would suggest security-based swap dealing activity. 280 For example, if a person were to use other instruments to hedge the risks associated with its security-based swap dealing activity, that hedging would not undermine the obligation of the person to register as a security-based swap dealer, notwithstanding the fact that it could be asserted that the dealing positions happen to hedge those other positions. mstockstill on DSK4VPTVN1PROD with RULES2 278 See VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 swap dealing activities are relatively modest. Presence or absence of a customer relationship. Although commenters have expressed the view that a person that engages in security-based swap activities on an organized market should not be deemed to be a dealer unless it engages in those activities with customers,281 we do not agree. It is true that having a customer relationship can illustrate a business model of seeking to profit by providing liquidity, and thus provide one basis for concluding that a person is acting as a security-based swap dealer. Nonetheless, the presence of market making terminology within the definition is inconsistent with the view that a security-based swap dealer must have ‘‘customers.’’ Also, Title VII requirements applicable to securitybased swap dealers address interests apart from customer protection.282 Accordingly, to the extent that a person regularly enters into security-based swaps with a view toward profiting by providing liquidity—rather than by taking directional positions—that person may be a security-based swap dealer regardless of whether it views itself as maintaining a ‘‘customer’’ relationship with its counterparties.283 Criteria associated with ‘‘holding self out’’ as a dealer or being ‘‘commonly known in the trade’’ as a security-based swap dealer. The Proposing Release articulated a number of activities that could satisfy the definition’s tests for a person ‘‘holding itself out’’ as a dealer or being ‘‘commonly known in the trade’’ as a dealer.284 Several commenters criticized those proposed criteria, largely on the grounds that those criteria would inappropriately encompass end-users who seek to use security-based swaps for hedging 281 See letters from ISDA I and Traders Coalition. in light of the view expressed by some market participants that they only have ‘‘counterparties’’ in the swap markets, and not ‘‘customers,’’ any interpretation of the ‘‘securitybased swap dealer’’ definition that is predicated on the existence of a customer relationship may lead to an overly narrow construction of the definition. 283 For example, a person’s activity involving entering into security-based swaps on a SEF may cause it to be a security-based swap dealer even in the absence of a customer relationship with any of its counterparties. 284 As noted above, these were: contacting potential counterparties to solicit interest; developing new types of swaps or security-based swaps and informing potential counterparties of their availability and of the person’s willingness to enter into the swap or security-based swap; membership in a swap association in a category reserved for dealers; providing marketing materials describing the type of swaps or security-based swaps the party is willing to enter into; and generally expressing a willingness to offer or provide a range of products or services that include swaps or security-based swaps. See Proposing Release, 75 FR at 80178. 282 Particularly PO 00000 Frm 00025 Fmt 4701 Sfmt 4700 30619 purposes, or otherwise would be overbroad or irrelevant.285 The Commissions recognize the significance of the concerns those commenters raised, and agree that these activities need to be considered within the context of whether a person engages in those activities with the purpose of facilitating dealing activity. While we do not believe that any of those activities by themselves would necessarily indicate that a person is acting as a security-based swap dealer, under certain circumstances they may serve as an indicia of a business purpose of seeking to profit by providing liquidity in connection with securitybased swaps.286 6. Requests for Exclusions From the Dealer Definitions Certain commenters have sought to exclude entire categories of persons from the dealer definitions, notwithstanding that some persons in those categories may engage in the activities set forth in the statutory definition (as further defined by the Commissions).287 The final rules nonetheless do not incorporate categorical exclusions of persons from the dealer definitions because the statutory definitions provide that ‘‘any person’’ who engages in the activities enumerated in the definitions is covered by the dealer definitions, unless the person’s activities fall within one of the statutory exceptions.288 In this regard, it is significant that the exceptions in the dealer definitions depend on whether a person engages in certain types of swap or security-based swap activity, not on other characteristics of the person. That is, the exceptions apply for swaps between an insured depository institution and its customers in connection with originating loans,289 swaps or security-based swaps entered into not as a part of a regular business,290 and swap or security-based swap dealing that is below a de minimis 285 See part II.A.2.a, supra. the Proposing Release identified ‘‘membership in a swap association in a category reserved for dealers’’ as a factor in connection with the ‘‘holding out’’ and ‘‘commonly known’’ tests, we recognize that, depending on the applicable facts and circumstances, such membership may not be sufficient to cause a person to be a security-based swap dealer if the person does nothing else to cause it to be considered a dealer. 287 See part II.A.2.f, supra. 288 See CEA section 1a(49), 7 U.S.C. 1a(49); Exchange Act section 3(a)(71), 15 U.S.C. 78c(a)(71). 289 See CEA section 1a(49)(A), 7 U.S.C. 1a(49)(A). 290 See CEA section 1a(49)(C), 7 U.S.C. 1a(49)(C); Exchange Act section 3(a)(71)(C), 15 U.S.C. 78c(a)(71)(C). 286 While E:\FR\FM\23MYR2.SGM 23MYR2 30620 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES2 level.291 The Dodd-Frank Act does not exclude any category of persons from the coverage of the dealer definitions; rather, it excludes certain activities from the dealer analysis. Given that the statutory dealer definitions focus on a person’s activity, the Commissions believe that it is appropriate to determine whether a person meets any of the tests set forth in those statutory definitions, and thus is acting as a swap dealer or securitybased swap dealer, on a case-by-case basis reflecting the applicable facts and circumstances.292 If a person’s swap or security-based swap activities are of a nature to be covered by the statutory definitions, and those activities are not otherwise excluded, then the person is covered by the definitions. The contrary is equally true—a person who is not engaged in activities covered by the statutory definitions, or whose activities are excluded from the definition, is not covered by the definitions.293 The per se exclusions requested by the commenters have no foundation in the statutory text, and have the potential to lead to arbitrary line drawing that may result in disparate regulatory treatment and inappropriate competitive advantages.294 The final rules particularly do not include any exclusions for aggregators of swaps or other persons that use swaps in connection with the physical commodity markets, including swaps in connection with the generation, transmission and distribution of electricity. It is likely, though, that a significant portion of the financial instruments used for risk management by such persons are forward contracts in nonfinancial commodities that are excluded from the definition of the term ‘‘swap.’’ 295 Such forward contracts are 291 See CEA section 1a(49)(D), 7 U.S.C. 1a(49)(D); Exchange Act section 3(a)(71)(D), 15 U.S.C. 78c(a)(71)(D). 292 The Commissions believe that a facts and circumstances approach is particularly appropriate here, where the broad terms of the statutory dealer definitions indicate that the Commissions should apply their expertise and discretion to interpret the statutory text. 293 For example, a manufacturer, producer, processor, or merchant that enters into swaps to hedge its currency or interest rate risk, absent any facts and circumstances establishing dealing activity, is not a swap dealer. 294 In response to the commenters concerns, the Commissions have adopted certain tailored exclusions of certain types of swaps and securitybased swaps in the final rule. 295 A coalition of not-for-profit power utilities and electric cooperatives has advised that it plans to submit a request for an exemption for transactions between entities described in section 201(f) of the Federal Power Act, as contemplated by section 722(f) of the Dodd-Frank Act. See letter from NFPEEU. Separately, some regional transmission organizations and independent systems operators VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 not relevant in determining whether a person is a swap dealer. B. ‘‘Swap Dealer’’ Exclusion for Swaps in Connection With Originating a Loan 1. Proposed Approach The statutory definition of the term ‘‘swap dealer’’ excludes an insured depository institution (‘‘IDI’’) ‘‘to the extent it offers to enter into a swap with a customer in connection with originating a loan with that customer.’’ 296 This exclusion does not appear in the definition of the term ‘‘security-based swap dealer.’’ Proposed CFTC Regulation § 1.3(ggg)(5) would implement this statutory exclusion by providing that an IDI’s swaps with a customer in connection with originating a loan to that customer are disregarded in determining if the IDI is a swap dealer. In order to prevent evasion, the proposed rule further provided that the statutory exclusion does not apply where the purpose of the swap is not linked to the financial terms of the loan; the IDI enters into a ‘‘sham’’ loan; or the purported ‘‘loan’’ is actually a synthetic loan such as a loan credit default swap or loan total return swap. 1. Commenters’ Views Nearly all the commenters on this issue were IDIs seeking a broad interpretation of the exclusion. The commenters addressed four primary issues: (i) The type of swaps that should be covered by the exclusion; (ii) the time period during which parties would be required to enter into the swap in order for the swap to be considered to be ‘‘in connection with originating a loan;’’ (iii) which transactions should be deemed to be ‘‘loans’’ for purposes of the exclusion; and (iv) which entities should be included within the definition of IDI. First, regarding the type of swap that should be covered by the exclusion, as proposed, § 1.3(ggg)(5) would require that the rate, asset, liability or other notional item underlying the swap be, or be directly related to, a financial term of the loan (such as the loan’s principal amount, duration, rate of interest or currency). Some commenters agreed with the principle of limiting the exclusion to swaps that are connected to the financial terms of the loan, stating that the exclusion should cover any have expressed interest in submitting an exemption application to the CFTC as well. See generally section 722(e) of the Dodd-Frank Act. Such exemptions, if granted after notice and comment pursuant to CEA section 4(c), 7 U.S.C. 6(c), could further address commenters’ concerns in this regard. 296 See CEA section 1a(49)(A), 7 U.S.C. 1a(49)(A). PO 00000 Frm 00026 Fmt 4701 Sfmt 4700 swap between a borrower and the lending IDI, so long as the swap’s notional amount is no greater than the loan amount, the swap’s duration is no longer than the loan’s duration, and the swap’s index and payment dates match the index and payment dates of the loan.297 Another commenter, agreeing with the proposed approach, said that there is no basis to extend the loan origination exclusion to swaps related to the borrower’s business risks, as opposed to the financial terms of the loan.298 Other commenters, though, said that this limitation to swaps connected to the financial terms of the loan was inappropriate or inconsistent with the Dodd-Frank Act, and that any swap required by the loan agreement or required by the IDI as a matter of prudent lending should be covered by the exclusion.299 Some of the commenters arguing for the broader exclusion emphasized that the exclusion should be available for any swap with the lending IDI which reduces the borrower’s risks, such as a commodity swap the borrower uses for hedging, because reduction of commodity price risks faced by the borrower also reduces the risk that the loan will not be repaid to the IDI.300 Commenters said that if the exclusion does not apply to swaps hedging the borrower’s commodity price risks, then only IDIs that are able to create a separately capitalized affiliate will be able to offer commodity swaps (because section 716 of the Dodd-Frank Act limits the ability of IDIs to offer commodity swaps), thereby reducing the availability of commodity swaps to 297 See letters from Branch Banking & Trust Company (‘‘BB&T’’) dated February 3, 2011 (‘‘BB&T I’’), B&F Capital Markets, Inc. (‘‘B&F Capital’’) dated February 18, 2011 (‘‘B&F Capital I’’), Capital One Financial Corporation (‘‘Capital One’’) and Capstar Bank (‘‘Capstar’’); see also joint letter from Atlantic Capital Bank, Cobiz Bank, Cole Taylor Bank, Commerce Bank, N.A., East West Bank, First Business Bank, First National Bank of Pennsylvania, Heartland Financial USA, Inc., Old National Bancorp, Peoples Bancorp of North Carolina, Inc., Susquehanna Bank, The PrivateBank and Trust Co, The Savannah Bank, N.A., The Washington Trust Company, Trustmark National Bank, UMB Financial Corporation, Valley National Bank, Webster Bank NA, WesBanco Bank (‘‘Regional Banks’’) (general support for limitation to swaps connected to financial terms of the loan). 298 See letter from Better Markets I. 299 See letters from BOK dated February 18, 2011 (‘‘BOK II’’), FSR I, ISDA I, Midsize Banks, OCC Staff at 6 (noting that ‘‘[l]oan underwriting criteria for community and mid-size banks * * * may require, as a condition of the loan, that the borrower be hedged against the commodity price risks incidental to its business’’) and White & Case LLP (‘‘White & Case’’) and joint letter from Senator Stabenow and Representative Lucas. 300 See letters from BOK II, FSR I, OCC Staff and White & Case. E:\FR\FM\23MYR2.SGM 23MYR2 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES2 borrowers that are smaller companies.301 Second, regarding timing, the proposed rule requested comment on whether this exclusion should apply only to swaps that are entered into contemporaneously with the IDI’s origination of the loan (and if so, how ‘‘contemporaneously’’ should be defined for this purpose), or whether this exclusion also should apply to swaps entered into during part or all of the duration of the loan. In response, commenters said that the exclusion should apply to swaps entered into in anticipation of a loan or at any time during the loan term.302 Commenters said that application of the exclusion throughout the duration of the loan would give IDIs and borrowers flexibility as to when to fix interest rates in fixed/floating swaps relating to loans and would allow borrowers to make other hedging decisions over a longer time period.303 Commenters also said that loans such as construction loans, equipment loans and committed loan facilities may allow for draws of loan principal over an extended period of time, and that swaps entered into by the borrower and lending IDI through the course of such a loan should be covered by the exclusion.304 Third, as to which transactions should be deemed ‘‘loans’’ for purposes of the exclusion, the proposal said that the exclusion should be available in connection with all transactions by which an IDI is a source of funds to a borrower, including, for example, loan syndications, participations and refinancings. Commenters agreed that the exclusion should be available for IDIs that are in a loan syndicate, purchasers of a loan, assignees of a loan or participants in a loan.305 On loan syndications and participations in particular, one commenter said that the exclusion should be available even if 301 See letters from ABA I and BOK I. Other commenters addressed the relationship between the swap dealer definition and section 619 of the DoddFrank Act (the ‘‘Volcker Rule’’). See joint letter from Capital One, Fifth Third Bancorp and Regions Financial Corporation. 302 See letters from BB&T I, B&F Capital I, BOK II, Capital One, Capstar, FSR I, Midsize Banks, Manufacturers and Traders Trust Company (‘‘M&T’’) dated June 3, 2011 (‘‘M&T I’’) and September 28, 2011 (‘‘M&T II’’), Peoples Bank Co. (‘‘Peoples Bank’’), Regional Banks and White & Case. 303 See letters from B&F Capital I, BOK II, Capital One, Capstar and M&T I and M&T II. 304 See letters from FSR dated October 17, 2011 (‘‘FSR VI’’), M&T II and Wells Fargo Bank, N.A. (‘‘Wells Fargo’’) dated August 16, 2011 (‘‘Wells Fargo II’’). 305 See letters from BB&T I, Midsize Banks, Regional Banks and White & Case; see also letter from Loan Market Association (providing background information on loan participations). VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 the notional amount of the swap is more than the amount of the loan tranche assigned to the IDI, so long as the swap notional amount is not more than the entire amount of the loan.306 Another commenter said that the exclusion should not be available if the IDI’s participation in the loan drops below a minimum level (such as 20 percent) because such use of the exclusion by minimally-participating IDIs would invite abuse.307 Some commenters said that other types of transactions also should be treated as ‘‘loans’’ for purposes of the exclusion. The transactions cited by commenters in this regard include leases, letters of credit, financings documented as sales of financial assets, bank qualified tax exempt loans and bonds that are credit enhanced by an IDI.308 Other commenters said the exclusion should apply where entities related to an IDI provide financing, such as loans or financial asset purchases by bank-sponsored commercial paper conduits where the IDI provides committed liquidity,309 and transactions where a special purpose entity formed by an IDI is the source of financing and enters into the swap.310 Some commenters said the exclusion should encompass all transactions where an IDI facilitates a financing,311 or all extensions of credit by an IDI,312 or all transactions where an IDI provides risk mitigation to a borrower.313 Fourth, with respect to the types of financial institutions that are eligible for the loan origination exclusion, three commenters said that IDIs, for purposes of this exclusion, encompass more than banks or savings associations with federally-insured deposits. The Farm Credit Council said the exclusion should be extended to Farm Credit System institutions because one of these institutions enters into interest rate swaps with borrowing customers identical in function to those offered by commercial banks and savings associations in connection with loans, and the institutions are subject to similar regulatory requirements and covered by a similar insurance regime.314 Another commenter said that 306 See letter from Regional Banks. letter from Better Markets I. 308 See letters from BB&T I, Capital One, FSR I, M&T I, Midsize Banks and Regional Banks. 309 See letter from FSR I. 310 See letter from Midsize Banks. 311 See letters from Pacific Coast Bankers’ Bancshares (‘‘PCBB’’) and Regional Banks. 312 See letters from FSR I and Midsize Banks. 313 See letter from PCBB. 314 Consequently, the Farm Credit Council argued, disallowing these institutions from using the exclusion would give commercial banks and 307 See PO 00000 Frm 00027 Fmt 4701 Sfmt 4700 30621 the exclusion should be extended to other regulated financial institutions, such as insurers, so as not to create an unlevel playing field.315 And the Federal Home Loan Banks said that the exclusion should be available to them because they are subject to similar regulatory oversight and capital standards and engage in a similar function of extending credit as do commercial banks and savings associations.316 In addition, some commenters said the exclusion should be broadly construed as a general matter, to encourage competition in the swap market between smaller and larger banks and to increase borrowers’ choice among potential swap providers.317 Two commenters asked for clarification of the following technical points in the proposed rule: (i) Whether a swap would be covered by the exclusion even if it does not hedge all the risks under the loan, (ii) whether a swap that is within the exclusion could continue to be treated as covered by the exclusion by an IDI if the IDI transfers the loan, and (iii) whether an IDI should count swaps covered by the exclusion in determining if its dealing activity is above the de minimis thresholds.318 Another commenter asked whether an IDI with swaps that are covered by the exclusion could be a swap dealer based on other dealing activity.319 And others asked whether the exclusion would cover swaps used by an IDI to hedge its risks arising from a loan (i.e., a swap which the IDI enters into with a party other than the loan borrower).320 3. Final Rule The CFTC believes that the extent of this exclusion should be determined by savings associations a competitive advantage in agricultural lending. See letters from Farm Credit Council I and dated February 17, 2012 (‘‘Farm Credit Council II’’). Another commenter argued that, to the contrary, making Farm Credit System institutions eligible for the exclusion would confer an inappropriate competitive advantage on those institutions. See letter from ABA dated February 14, 2012 (‘‘ABA II’’). This commenter said that Farm Credit System institutions have certain advantages over other IDIs, and the commenter asserted that Farm Credit System institutions were left out of the statutory language of the exclusion in order that they would not receive additional competitive advantages. See id. 315 See letter from NAIC. 316 See letter from FHLB I. The Credit Union National Association said that the Federal Home Loan Banks should not be covered by the swap dealer definition because they do not enter into swaps for their own account as part of a regular business. See letter from CUNA. 317 See letters from BB&T I, B&F Capital dated June 1, 2011 (‘‘B&F Capital II’’), Capital One, Capstar, M&T I and Peoples Bank. 318 See letters from FSR VI and Midsize Banks. 319 See letter from Better Markets I. 320 See letters from B&F Capital I, FSR I, ISDA I, M&T I and Midsize Banks. E:\FR\FM\23MYR2.SGM 23MYR2 mstockstill on DSK4VPTVN1PROD with RULES2 30622 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations the language of the statutory definition, which relates to an IDI that ‘‘offers to enter into a swap with a customer in connection with originating a loan with that customer.’’ The expansive interpretation of the exclusion advanced by some commenters, however, would read the statute to exclude almost any swap that an IDI enters into with a loan customer. That is not the exclusion that was enacted. Instead, we interpret the statutory phrase ‘‘enter into a swap with a customer in connection with originating a loan with that customer’’ to mean that the swap is directly connected to the IDI’s process of originating the loan to the customer. Because of the statute’s direct reference to ‘‘originating’’ the loan, it would be inappropriate to construe the exclusion as applying to all swaps entered into between an IDI and a borrower at any time during the duration of the loan. If this were the intended scope of the statutory exclusion, there would be no reason for the text to focus on swaps in connection with ‘‘originating’’ a loan. The CFTC recognizes the concern expressed by commenters that: (i) there be flexibility regarding when the IDI and borrower enter into a swap relating to a loan, and (ii) the expectation when an IDI originates a loan with a customer is often that the customer will enter into a swap with the IDI when there is a subsequent advance, or a draw, of principal on the loan. We do not believe, however, that the statutory term ‘‘origination’’ can reasonably be stretched to cover the entire term of every loan that an IDI makes to its customers. At some point, the temporal distance renders the link to loan origination too attenuated, and the risk of evasion too great, to support the exclusion. In order to balance these competing and conflicting considerations, the final rule applies the exclusion to any swap that otherwise meets the terms of the exclusion and is entered into no more than 90 days before or 180 days after the date of execution of the loan agreement, or no more than 90 days before or 180 days after the date of any transfer of principal to the borrower from the IDI (e.g., a draw of principal) pursuant to the loan, so long as the aggregate notional amount of the swaps in connection with the financial terms of the loan at any time is no more than the aggregate amount of the borrowings under the loan at that time.321 321 We note that because the exclusion is available within the specified time period around the execution of the loan agreement and any draw of principal under the loan, any amendment, VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 Since a loan involves the repayment of funds to the IDI on particular terms, a swap that relates to those terms of repayment should be covered by the exclusion. In addition, we recognize that, as stated by commenters, requirements in an IDI’s loan underwriting criteria relating to the borrower’s financial stability are an important part of ensuring that loans are repaid.322 Therefore, the final rule modifies the proposed rule to provide that the exclusion applies to swaps between an IDI and a loan borrower that are connected to the financial terms of the loan, such as, for example, the loan’s duration, interest rate, currency or principal amount, or that are required under the IDI’s loan underwriting criteria to be in place as a condition of the loan in order to hedge commodity price risks incidental to the borrower’s business.323 The first category of swaps generally serve to transform the financial terms of a loan for purposes of adjusting the borrower’s exposure to certain risks directly related to the loan itself, such as risks arising from changes in interest rates or currency exchange rates. The second category of swaps mitigate risks faced by both the borrower and the lender, by reducing risks that the loan will not be repaid. Thus, both types of swaps are directly related to repayment of the loan. Although some commenters said that this exclusion should also apply to other types of swaps, we believe it would be inappropriate to construe this exclusion as encompassing all swaps that are connected to a borrower’s other business activities, even if the loan agreement requires that the borrower enter into such swaps or otherwise refers to them.324 In contrast to a swap that transforms the financial terms of a loan or is required by the IDI’s loan underwriting criteria to reduce the borrower’s commodity price risks, other types of swaps serve a more general risk management purposes by reducing other risks related to the borrower or the loan. If the purpose of the exclusion were to cover the broad range of swaps cited by restructuring, extension or other modification of the loan will, in itself, neither preclude application of the exclusion nor expand application of the exclusion. 322 See letter from OCC Staff. 323 The final rule provides that the second category of swaps must hedge a price risk related to a commodity other than an excluded commodity because if the price risk relates to an excluded commodity (such as an interest rate) the swap must be connected to the financial terms of the loan in order to be covered by the exclusion. 324 On the other hand, there is no requirement that the loan agreement reference a swap in order for the swap to be excluded, if the swap otherwise qualifies for the exclusion. PO 00000 Frm 00028 Fmt 4701 Sfmt 4700 some commenters (such as all swaps reducing a borrower’s business risks), then the terms of the statute limiting the exclusion to swaps that are ‘‘in connection with originating a loan with that customer’’ would be superfluous.325 To give effect to the statutory text, the exclusion is limited to a swap that is connected to the financial terms of the loan or is required by the IDI’s loan underwriting criteria to to be in place as a condition of the loan in order to hedge commodity price risks incidental to the borrower’s business. Regarding the types of transactions that will be treated as a ‘‘loan’’ for purposes of the exclusion, courts have defined the term ‘‘loan’’ in other statutory contexts based on the settled meaning of the term under common law. This definition encompasses any contract by which one party transfers a defined quantity of money and the other party agrees to repay the sum transferred at a later date.326 Rather than examine at this time the many particularized examples of financing transactions cited by some commenters, the term ‘‘loan’’ for purposes of this exclusion should be interpreted in accordance with this settled legal meaning.327 As stated in the proposed rule, this exclusion is available to all IDIs that are a source of a transfer of money to a borrower pursuant to a loan. The final rule adopts provisions from the proposed rule that the exclusion is available to an IDI that is a source of money by being part of a loan syndicate, being an assignee of a loan, obtaining a participation in a loan, or purchasing a loan.328 However, the proposed rule did 325 Also, we believe that the broader range of swaps serving general risk management purposes are more likely to involve concerns regarding market transparency and appropriate business conduct practices addressed by swap dealer regulation than are the narrower range of swaps that are encompassed by the exclusion. 326 See, e.g., In Re Renshaw, 222 F.3d 82, 88 (2d Cir. 2000) (‘‘Because Congress did not define the term ‘‘loan’’ for [11 U.S.C.] § 523(a)(8), we must interpret it according to its settled meaning under common law. The classic definition of a loan [is] * * * as follows: To constitute a loan there must be (i) a contract, whereby (ii) one party transfers a defined quantity of money, goods, or services, to another, and (iii) the other party agrees to pay for the sum or items transferred at a later date.’’) (citing In re Grand Union Co., 219 F. 353, 356 (2d Cir. 1914)). 327 The final rule adopts provisions from the proposed rule that, in order to prevent evasion, the statutory exclusion does not apply where the IDI originates a ‘‘sham’’ loan; or the purported ‘‘loan’’ is actually a synthetic loan such as a loan credit default swap or loan total return swap. See CFTC Regulation § 1.3(ggg)(5)(iii). 328 See CFTC Regulation § 1.3(ggg)(5)(ii). As is also stated in the Proposing Release, if an IDI were to transfer its participation in a loan to a non-IDI, then the non-IDI would not be able to claim this E:\FR\FM\23MYR2.SGM 23MYR2 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES2 not state explicitly how the notional amount of a swap subject to the exclusion must relate to the amount of money provided by an IDI that is in a loan syndicate or is an assignee of, participant in or purchaser of a loan. In this regard, some commenters said that a borrower and the IDIs in a lending syndicate need flexibility to allocate responsibility for the swap(s) related to the loan as they may agree.329 We believe that, to allow for this flexibility, the exclusion may apply to a swap (which is otherwise covered by the exclusion) even if the notional amount of the swap is different from the amount of the loan tranche assigned to the IDI. However, we also agree with a commenter that the IDI should have a substantial participation in the loan.330 The requirement of substantial participation would prevent an IDI from applying the exclusion where the IDI makes minimal lending commitments in multiple loan syndicates where it offers swaps, causing its swap activity to be far out of proportion to its loan activity.331 Therefore, the final rule includes a provision that the exclusion may apply regardless of whether the notional amount of the swap is the same as the amount of the loan, but only if the IDI is the sole source of funds under the loan or is committed to be, under the applicable loan agreements, the source of at least 10 percent of the maximum principal amount under the loan.332 If the IDI does not meet this 10 percent threshold, the final rule provides that the exclusion may apply only if the aggregate notional amount of all the IDI’s swaps with the customer related to the financial terms of the loan is no more than the amount lent by the IDI to the customer.333 We also note that, in all cases, application of the exclusion requires that the aggregate notional amount of all swaps entered into by the borrower with any person in connection exclusion, regardless of the terms of the loan or the manner of the transfer. Similarly, a non-IDI that is part of a loan syndicate with IDIs would not be able to claim the exclusion. 329 See, e.g., letter from Regional Banks. 330 See letter from Better Markets I. This commenter suggested a minimal threshold of at least 20 percent of the loan. However, we believe that a 10 percent commitment constitutes a substantial participation in the loan which supports offering of a swap up to the loan’s full amount. 331 For example, an IDI could act as a 0.1 percent participant in one hundred different loans in order to serve as the sole swap counterparty to the borrowers for hedging the borrowers’ interest rate risk on the loans. Thus, by lending or committing to lend $100 million, the IDI could apply the exclusion to swaps with an aggregate notional amount of $100 billion. 332 See CFTC Regulation § 1.3(ggg)(5)(i)(D)(1) and (2). 333 See CFTC Regulation § 1.3(ggg)(5)(i)(D)(3). VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 with the financial terms of the loan at any time is not more than the aggregate principal amount outstanding under the loan at that time.334 We also reiterate the interpretation in the Proposing Release that the word ‘‘offer’’ in this exclusion includes scenarios where the IDI requires the customer to enter into a swap, or where the customer asks the IDI to enter into a swap, specifically in connection with a loan made by that IDI. We also continue to emphasize, as stated in the Proposing Release, that the statutory language of the exclusion limits its availability to only IDIs as defined in the statute. Regarding some commenters’ statements about the competitive effect of this interpretation of the term ‘‘insured depository institution,’’ we believe that the scope of application of the swap dealer definition to various entities should be treated in the de minimis exception, which is available to all persons. In order to provide clarification in response to certain technical questions raised by commenters, we note that whether a swap hedges all of the risk, or only some of the risk, of a loan is not relevant to application of the exclusion. Nor is it relevant to the exclusion if the IDI later transfers or terminates the loan in connection with which the swap was entered into, so long as the swap otherwise qualifies for the exclusion and the loan was originated in good faith and was not a sham.335 Further, swaps that are covered by the exclusion should not be considered in determining if an IDI exceeds the de minimis level of swap dealing activity, because the statute provides that swaps covered by the exclusion should not be considered in determining if an IDI is a swap dealer, and the de minimis exception provides that it considers the ‘‘quantity of [a person’s] swap dealing.’’ 336 The application of the exclusion to swaps entered into by an IDI in connection with the origination of loans, however, does not mean that the IDI could not be a swap dealer because of other of the IDI’s activities that 334 See CFTC Regulation § 1.3(ggg)(5)(i)(E). Paragraphs (D)(3) and (E) of this regulation refer to all swaps ‘‘in connection with the financial terms of the loan’’ in order to clarify that only such swaps are relevant in this regard. For example, if the IDI were to enter into a swap with the customer that is not in connection with the loan’s financial terms, the swap would not be relevant because the exclusion would not apply to the swap. 335 On the other hand, if the IDI were to transfer the swap (but not the loan) to another IDI, and the IDI that is the transferee of the swap is not a source of money to the borrower under the loan, then the transferee IDI would not be able to apply the exclusion to the swap. 336 See CEA sections 1a(49)(A) and 1a(49)(D), 7 U.S.C. 1a(49)(A) and 1a(49)(D). PO 00000 Frm 00029 Fmt 4701 Sfmt 4700 30623 constitute swap dealing. Regarding swaps used by an IDI to hedge or lay off its risks arising from a loan, we do not believe it is appropriate to treat such swaps as covered by the exclusion, because the statute explicitly limits the exclusion to swaps ‘‘with a customer,’’ which such hedging swaps are not. However, a swap that an IDI enters into for the purpose of hedging or laying off the risk of a swap that is covered by the IDI exclusion will not be considered in the de minimis determination, or otherwise in evaluating whether the IDI is covered by the swap dealer definition.337 Last, we believe it is appropriate to require that an IDI claiming the exclusion report its swaps that are covered by the exclusion to a swap data repository (‘‘SDR’’). This requirement is consistent with the prevailing practice that IDIs handle the documentation of loans made to borrowers, and will provide for consistent reporting of swaps that are covered by the exclusion, thereby allowing the CFTC and other regulators to monitor the use of the exclusion. In sum, the final rule balances the need for flexibility in response to existing lending practices, consistent with the constraints imposed by the statutory text as enacted, against the risk of establishing a gap in the regulatory framework enacted in Title VII.338 It provides that the exclusion may be claimed by a person that meets the following conditions: (i) The person is an IDI; (ii) the IDI enters into a swap with the borrower that does not extend beyond the termination of the loan; (iii) the swap is connected to the financial terms of the loan or is required by the IDI’s loan underwriting criteria to to be in place as a condition of the loan in order to hedge commodity price risks incidental to the borrower’s business; (iv) the loan is within the common law meaning of ‘‘loan’’ and it is not a sham or a synthetic loan; (v) the IDI is the source of money to the borrower in connection with the loan either directly, or (so long as the IDI is the source of at least 10 percent of the entire amount of the loan) through syndication, participation, assignment, purchase, refinancing or otherwise; (vi) the IDI 337 An IDI that is seeking out swap counterparties to enter into swaps in order to hedge or lay off the risk of a swap that is subject to the IDI exclusion would generally not be accommodating demand for swaps or facilitating interest in swaps. 338 The final rule text in CFTC Regulation § 1.3(ggg)(5)(i) has been revised to conform the text of the rule to the statutory provision which refers to ‘‘an insured depository institution [that] * * * enter[s] into a swap with a customer in connection with originating a loan with that customer.’’ See CEA § 1a(49)(A), 7 U.S.C. 1a(49)(A) E:\FR\FM\23MYR2.SGM 23MYR2 30624 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations enters into the swap with the borrower within 90 days before or 180 days after the date the execution of the loan agreement, or within 90 days before or 180 days after any transfer of principal to the borrower from the IDI pursuant to the loan; (vii) the aggregate notional amount of all swaps entered into by the borrower with all persons in connection with the financial terms of the loan at any time is not more than the aggregate amount of the borrowings under the loan at that time; and (viii) the IDI agrees to report the swap to an SDR. An IDI that enters into swaps that do not meet these conditions, and thus do not qualify for the statutory exclusion, is not necessarily required to register as a swap dealer. Rather, the IDI would apply the statutory definition and the provisions of the rule (taking into account the applicable interpretive guidance set forth in this Adopting Release), solely with respect to its swaps that are not subject to the IDI exclusion, in order to determine whether it is engaged in swap dealing activity that exceeds the de minimis threshold. dealer analysis.341 A number of commenters took the view that the dealer definitions should not apply when there is common control between counterparties, or when common control is combined with the consolidation of financial statements.342 Some commenters suggested that this interpretation regarding the scope of the dealer definitions should incorporate concepts of affiliation that are found in other statutory and regulatory provisions.343 Several commenters also opposed the suggestion (raised as part of the Proposing Release’s request for comments) that this interpretation be limited to transactions among wholly owned subsidiaries.344 C. Application of Dealer Definitions to Legal Persons and to Inter-Affiliate Swaps and Security-Based Swaps 341 See, e.g., letters from API I, COPE I, ISDA I, Midsize Banks, ONEOK, Inc. (‘‘ONEOK’’) and Peabody. Several commenters explained the widespread use of central hedging desks to allocate risk within affiliate groups or to gather risk from within a group and lay that risk off on the market. See, e.g., letters from EEI/EPSA, Kraft Foods Inc. (‘‘Kraft’’), MetLife and Prudential Financial, Inc. (‘‘Prudential’’) dated February 17, 2011 (‘‘Prudential I’’). Some commenters particularly stated that the use of a single entity to face the market on behalf of an affiliate group had several risk-reducing and efficiency-enhancing benefits, and that those benefits would be lost if the dealer definitions were to lead corporate groups to avoid using central trading desks and instead require each affiliate to face the market as an independent end-user. See letters from FSR I, Philip Morris International Inc. (‘‘Philip Morris’’), Shell Trading dated June 3, 2011 (‘‘Shell Trading II’’) and Utility Group, and joint letter from ABA Securities Association, American Council of Life Insurers (‘‘ACLI’’), FSR, Futures Industry Association (‘‘FIA’’), Institute of International Bankers, ISDA and SIFMA (‘‘Financial Associations’’). Some commenters also stated that legislative history suggested that Congress did not intend that the dealer definition capture transactions involving the use of an affiliate to hedge commercial risk. See letters from CDEU and Prudential I. 342 See letters from CDEU (common control), Financial Associations (common control and consolidation), MetLife (consolidation), ONEOK (common control, evaluated based on whether the trading interests of the entities are aligned) and Prudential I (citing CFTC letter interpretation regarding common control). 343 See, e.g., letters from EDF Trading (proposing definition from regulations promulgated by the Federal Energy Regulatory Commission) and Peabody (proposing definition of ‘‘affiliate’’ used in federal securities laws) and joint letter from the Bank of Tokyo-Mitsubishi UFJ, Ltd., Mizuho Corporate Bank, Ltd. and Sumitomo Mitsui Banking Corp. (suggesting use of control definition in Bank Holding Company Act). 344 See, e.g., letters from Kraft and ONEOK. 1. Proposed Approach and Commenters’ Views mstockstill on DSK4VPTVN1PROD with RULES2 In the Proposing Release, the Commissions preliminarily concluded that designation as a dealer would apply on an entity-level basis (rather than to a trading desk or other business unit that is not organized as a separate legal person), and that an affiliated group of legal persons could include more than one dealer.339 The Proposing Release also stated that the dealer analysis should consider the economic reality of swaps and security-based swaps between affiliates, and preliminarily noted that swaps or security-based swaps ‘‘between persons under common control may not involve the interaction with unaffiliated persons that we believe is a hallmark of the elements of the definitions that refer to holding oneself out as a dealer or being commonly known as a dealer.’’ 340 Commenters supported the view that swaps and security-based swaps among affiliates should be excluded from the 339 See Proposing Release, 75 FR at 80183. The Proposing Release further noted that sections 721(c) and 761(b)(3) give the Commissions anti-evasion authority, to the extent that an entity were to seek to use transactions between persons under common control to avoid one of the dealer definitions. See id. (erroneously referring to section 721(c) as section 721(b)(3). 340 Id. VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 2. Final Interpretation and Rule a. Application to Legal Persons Consistent with the Proposing Release, the Commissions interpret ‘‘person’’ as used in the swap dealer and security-based swap dealer definitions to refer to a particular legal person. Accordingly, the dealer definitions will apply to the particular legal person PO 00000 Frm 00030 Fmt 4701 Sfmt 4700 performing the dealing activity, even if that person’s dealing activity is limited to a trading desk or discrete business unit,345 unless the person is able to take advantage of a limited designation as a dealer.346 b. Application to Inter-Affiliate Swaps and Security-Based Swaps The final rules codify exclusions from the dealer definitions for a person’s swap or security-based swap activities with certain affiliates.347 These rules are consistent with the Proposing Release’s recognition of the need to consider the economic reality of any swaps or security-based swaps that a person enters into with affiliates. Market participants may enter into such interaffiliate swaps or security-based swaps for a variety of purposes, such as to allocate risk within a corporate group or to transfer risks within a corporate group to a central hedging or treasury entity. Under the final rules, the dealer analysis will not apply to swaps and security-based swaps between majorityowned affiliates.348 When the economic interests of those affiliates are aligned adequately—as would be found in the case of majority-ownership—such swaps and security-based swaps serve to allocate or transfer risks within an affiliated group, rather than to move those risks out of the group to an unaffiliated third party. For this reason, and as contemplated by the Proposing Release,349 we do not believe that such 345 Within an affiliated group of companies, however, only those legal persons that engage in dealing activities will be designated as dealers; that designation will not be imputed to other non-dealer affiliates or to the group as a whole. A single affiliate group may, however, have multiple swap or security-based swap dealers. 346 Limited designation as a dealer is addressed in more detail below in part II.E. 347 See CFTC Regulation § 1.3(ggg)(6)(i); Exchange Act rule 3a71–1(d). A person’s market-facing swap or security-based swap activity may still cause that person to be a dealer, even if that market-facing activity is linked to the inter-affiliate activity, to the extent that the market-facing activity satisfies the dealer definition. However, a person’s marketfacing swap activity for hedging purposes as defined in CFTC Regulation § 1.3(ggg)(6)(iii) would not cause that person to be a dealer. 348 See CFTC Regulation § 1.3(ggg)(6)(i); Exchange Act rule 3a71–1(d)(1). For the purposes of these rules, the counterparties are majority-owned affiliates if one party directly or indirectly holds a majority ownership interest in the other, or if a third party directly or indirectly holds a majority interest in both, based on holding a majority of the equity securities of an entity, or the right to receive upon dissolution or the contribution of a majority of the capital of a partnership. See CFTC Regulation § 1.3(ggg)(6)(i); Exchange Act rule 3a71–1(d)(2). 349 See Proposing Release, 75 FR at 80183 (noting that swaps or security-based swaps between affiliates ‘‘may not involve the interaction with unaffiliated persons that we believe is a hallmark of the elements of the definitions that refer to E:\FR\FM\23MYR2.SGM 23MYR2 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES2 swaps and security-based swaps involve the interaction with unaffiliated persons to which dealer regulation is intended to apply. The standard in the final rules differs from the standard suggested by the Proposing Release, which alluded to affiliates as legal persons under ‘‘common control.’’ This change is based on our further consideration of the issue, including consideration of comments that an inter-affiliate exclusion should be available when common control is combined with the consolidation of financial statements. Although we are not including a requirement that financial statements be consolidated—as we do not believe that the scope of this exclusion should be exposed to the risk of future changes in accounting standards—in our view a majority ownership standard is generally consistent with consolidation under GAAP.350 Absent majority ownership, we cannot be confident that there would be an alignment of economic interests that is sufficient to eliminate the concerns that underpin dealer regulation. In taking this approach, we have also considered alternatives suggested by commenters. For example, while one commenter suggested that we adopt a definition of ‘‘affiliate’’ as used in the securities laws,351 we believe that such an approach would be too broad for the purpose of this exclusion from dealing activity, given that common control by itself does not ensure that two entities’ economic interests are sufficiently aligned.352 holding oneself out as a dealer or being commonly known as a dealer’’). 350 See FASB ASC Section 810–10–25, Consolidation—Overall—Recognition (stating that consolidation is appropriate if a reporting entity has a controlling financial interest in another entity and a specific scope exception does not apply). 351 See letter from Peabody. The commenter did not specify which definition of ‘‘affiliate’’ in the securities laws it was proposing. For example, Rule 405 of the Securities Act of 1933 defines affiliate in terms of common control, see 17 CFR 230.405, and Section 20(a) of the Exchange Act takes a similar approach. The Investment Company Act of 1940 (‘‘ICA’’) defines affiliate to include entities with a common ownership interest as low as 5 percent, ICA section 2(a)(3). Two other commenters proposed using a common control standard, perhaps also in reference to the Rule 405 definition of ‘‘affiliate.’’ 352 The definitions of ‘‘affiliate’’ and ‘‘control’’ found in Rule 405 and other securities law provisions are appropriate in the context of the prophylactic and remedial provisions in which they are found. Rule 405, for example, uses the terms ‘‘affiliate’’ and ‘‘control’’ to identify those persons that have the power to effect registration of an issuer’s securities, and the broad definitions ensure that the persons with that power actually fulfill their obligation to do so. By comparison, the exclusion of inter-affiliate swaps and security-based swaps from the dealer analysis should be more VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 c. Application to Cooperatives Similar considerations apply, in certain situations, to cooperative entities that enter into swaps with their members in order to allocate risk between the members and the cooperative. Commenters identified two general types of such cooperatives— ‘‘cooperative associations of producers’’ as defined in section 1a(14) of the CEA 353 and cooperative financial entities such as Farm Credit System institutions and Federal Home Loan Banks.354 As is the case for affiliated groups of corporate entities, we believe that when one of these cooperatives enters into a swap with one of its members,355 the swap serves to allocate or transfer risks within an affiliated group, rather than to move those risks from the group to an unaffiliated third tightly focused to address situations in which counterparties have similar economic interests. Another commenter noted the definition of ‘‘affiliate’’ found in certain Federal Energy Regulation Commission regulations—which define ‘‘affiliate’’ in terms of a ten percent or five percent common ownership interest. See letter from EDF Trading. Those relatively low ownership thresholds, however, are intended to address different concerns regarding collusion and crosssubsidization, and do not appear appropriate for an interpretation that has the potential to reduce the counterparty and market protections provided by Title VII. See 18 CFR sections 35.36(a)(9), 35.39, 366.2(b), 366.3. 353 7 U.S.C. 1a(14). A cooperative association of producers is at least 75 percent owned or controlled, directly or indirectly, by producers of agricultural products and must comply with the Capper-Volstead Act (referred to in the CEA as the Act of February 18, 1922, 7 U.S.C. 291 and 292). See letters from Land O’Lakes II, NCFC I and NMPF. 354 See letters from Farm Credit Council I and FHLB I. The NRU CFC qualifies as a cooperative financial entity, but we understand that it does not enter into a significant amount of swaps with its members; rather, it enters into swaps with unaffiliated third parties. See letter from NRU CFC I and meeting with NRU CFC on January 13, 2011. 355 The term ‘‘cooperative association of producers’’ also includes any organization acting for a group of such associations and owned or controlled by such associations. See CEA section 1a(14), 7 U.S.C. 1a(14). For a cooperative association of producers that is acting for and owned or controlled by such associations, we believe that this conclusion applies to any swap between such cooperative association of producers and any cooperative association of producers that is a member of it, and any producer that is a member of any such cooperative association of producers that is itself a member of the first cooperative association of producers. See CFTC Regulation § 1.3(ggg)(6)(ii)(C). However, we do not believe that this conclusion applies to any security-based swap that a cooperative association of producers may enter into, nor does it apply to any swap related to a nonphysical commodity (such as a rate swap). For this reason, the exclusion for cooperative associations of producers is limited to swaps that are primarily based on a commodity that is not an excluded commodity. See CFTC Regulation § 1.3(ggg)(6)(ii)(A)(3). The term ‘‘excluded commodity’’ is defined in CEA section 1a(19), 7 U.S.C. 1a(19). PO 00000 Frm 00031 Fmt 4701 Sfmt 4700 30625 party, so long as the cooperative adheres to certain risk management practices. Accordingly, the final rules specifically provide that the dealer analysis excludes swaps between a cooperative and its members, so long as the swaps in question are reported to the relevant SDR by the cooperative and are subject to policies and procedures of the cooperative which ensure that it monitors and manages the risk of such swaps.356 The final rules define the term ‘‘cooperative’’ to include cooperative associations of producers and any entity chartered under Federal law as a cooperative and predominantly engaged in activities that are financial in nature.357 The cooperatives covered by this relief are subject to provisions of Federal law providing for their cooperative purpose. Cooperative associations of producers have been recognized since the passage of the Capper-Volstead Act as being permitted to engage in certain cooperative activities without violating antitrust laws.358 Cooperative financial institutions such as the Farm Credit System institutions and Federal Home Loan Banks are chartered under Federal laws that limit their membership and require that they serve certain public purposes.359 We are aware that other persons commented that their swap activities should be excluded from the dealer analysis because they use swaps in connection with a cooperative or nonprofit purpose, or because they aggregate demand for swaps arising from numerous small entities.360 However, the key distinction drawn in granting this relief is that cooperatives covered by the exclusion enter into swaps with their members in order to allocate risk between the members and 356 See CFTC Regulation § 1.3(ggg)(6)(ii). To be clear, these cooperatives are not excluded from the dealer definitions. See part II.A.6, supra. Rather, swaps between a cooperative and its members (and swaps that a cooperative enters into to hedge or lay off the risk of such swaps) are excluded from the dealer analysis. If a cooperative were to engage in other swap activities that are covered by, and not otherwise excluded from, the statutory definition of the term ‘‘swap dealer,’’ then it would be required to register as a swap dealer. 357 See CFTC Regulation § 1.3(ggg)(6)(ii)(B). 358 See Capper-Volstead Act section 1, 7 U.S.C. 291. 359 See Farm Credit Act of 1971, 12 U.S.C. 2001 et seq. and Federal Home Loan Bank Act, 12 U.S.C. 1421 et seq. 360 See letter from NFPEEU (not-for-profit power utilities, electric cooperatives and related persons); letters from Farmers’ Associations, NGFA I and NMPF (referring to private companies that serve as aggregators for swaps in agricultural commodities or otherwise offer swaps for agricultural risk management); and letter from Northland Energy (small energy firm that aggregates demand for swaps from small energy retailers and consumers). E:\FR\FM\23MYR2.SGM 23MYR2 30626 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations the cooperative. By contrast, the other entities noted above enter into swaps with unaffiliated parties in order to transfer risks between unaffiliated parties.361 As noted above, the Commissions believe that the contemplated scope of the statutory definitions does not include instances where a person’s swap activities transfer risk within an affiliated group, but does extend to activities that create legal relationships that transfer risk between unaffiliated parties. Thus, it is appropriate that the dealer analysis exclude swaps between a cooperative and its members, but such analysis should include swaps between a cooperative or other aggregator and unaffiliated persons. D. De Minimis Exception mstockstill on DSK4VPTVN1PROD with RULES2 1. Proposed Approach The Dodd-Frank Act’s definitions of ‘‘swap dealer’’ and ‘‘security-based swap dealer’’ require that the Commissions exempt from dealer designation any entity ‘‘that engages in a de minimis quantity’’ of dealing ‘‘in connection with transactions with or on behalf of customers.’’ The statutory definitions further require the Commissions to ‘‘promulgate regulations to establish factors with respect to the making of any determination to exempt.’’ 362 In the Proposing Release, we preliminarily concluded that the de minimis exception ‘‘should be interpreted to address amounts of dealing activity that are sufficiently small that they do not warrant registration to address concerns implicated by the regulations governing swap dealers and security-based swap dealers. In other words, the exception should apply only when an entity’s dealing activity is so minimal that applying dealer regulations to the entity would not be warranted.’’ 363 In taking this view, we rejected the suggestion that the de minimis exception should 361 See, e.g., letter from NFPEEU (not-for-profit power utilities and electric cooperatives generally enter into swaps between themselves, with large industrial consumers, and a wide range of other counterparties). Indeed, the Dodd-Frank Act permits the CFTC to exempt agreements, contracts or transactions between entities described in section 201(f) of the Federal Power Act, such as certain not-for-profit power utilities and electric cooperatives. See section 722(f) of the Dodd-Frank Act. As noted above, a coalition of not-for-profit power utilities and electric cooperatives has advised that it plans to submit a request for the exemption contemplated by section 722(f) of the Dodd-Frank Act. See note 295 supra. 362 CEA section 1a(49)(D), 7 U.S.C. 1a(49)(D); Exchange Act section 3(a)(71)(D), 15 U.S.C. 78c(a)(71)(D). 363 Proposing Release, 75 FR at 80179 (footnote omitted). VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 compare a person’s swap or securitybased swap dealing activities to the person’s non-dealing activities.364 At the same time, we recognized that this proposed approach did not appear to ‘‘readily translate into objective criteria.’’ We further recognized that a range of alternative approaches may be reasonable, and we solicited comment as to what factors should be used to implement the exception.365 The proposed de minimis exception was comprised of three factors, all of which a person would have had to satisfy to avail itself of the exception.366 The first proposed factor would have limited the aggregate effective amount, measured on a gross basis, of the swaps or security-based swaps that a person entered into over the prior 12 months in connection with its dealing activities to $100 million 367 (or $25 million with regard to counterparties that are ‘‘special entities’’).368 The second proposed factor would have limited a person’s swap or security-based swap dealing activity to no more than 15 counterparties over the prior 12 months (while counting counterparties that are members of an affiliated group as one counterparty for these purposes). The final proposed factor would have limited a person’s dealing activity to no more than 20 swaps or security-based swaps over the prior 12 months (without counting 364 See id. at 80179–80. id. at 80180. 366 Under the proposal, the factors would consider a person’s swap or security-based swap dealing activity as a whole, rather than separately considering different types of swaps or securitybased swaps. See Proposing Release, 75 FR at 80181. 367 See proposed Exchange Act rule 3a71–2(a). The proposed standard reflected our understanding that in general the notional size of a small swap or security-based swap is $5 million or less, and that the proposed threshold would reflect 20 instruments of that size. The standard also sought to reflect the customer protection issues implicated by swaps and security-based swaps. See Proposing Release, 75 FR at 80180. The proposed notional threshold would not consider the market risk offsets associated with combining long and short positions. In addition, the proposed notional threshold would not account for the amount of collateral held or posted by the entity, or other risk mitigating factors. See id. 368 See proposed Exchange Act rule 3a71–2(a). As set forth by the statutory business conduct rules applicable to security-based swap dealers (as set forth in Exchange Act section 15F(h)(2)(C)), ‘‘special entity’’ refers to: Federal agencies; States, State agencies and political subdivisions (including cities, counties and municipalities); ‘‘employee benefit plans’’ as defined under the Employee Retirement Income Security Act of 1974 (‘‘ERISA’’); ‘‘governmental plans’’ as defined under ERISA; and endowments. Title VII imposes additional business conduct requirements on security-based swap dealers in connection with special entities. See CEA sections 4s(h)(2), 4s(h)(4), 4s(h)(5); Exchange Act section 15F(h)(2), (4), (5). 365 See PO 00000 Frm 00032 Fmt 4701 Sfmt 4700 certain amendments as new swaps or security-based swaps). 2. Commenters’ Views a. Basis for the Exception Some commenters sought to link the de minimis exception to systemic risk criteria by taking the position that a person should have to register as a dealer only if its dealing activities pose systemic significance.369 One commenter specifically objected to the position in the Proposing Release that the de minimis exception should take into account customer protection principles.370 On the other hand, one commenter supported the rejection of a risk-based de minimis test.371 Some commenters argued that the de minimis test should account for proportionality criteria that would excuse entities whose dealing activity is relatively minor compared to their other activities.372 b. Significance of ‘‘Customer’’ Language One commenter took the position that the language within the de minimis exception that specifically referred to ‘‘transactions with or on behalf of customers’’ meant that the exception should be available only for persons who limit their swaps or security-based swaps to those that are entered into with or on behalf of customers.373 Other commenters posited the opposite view that the ‘‘customer’’ language should be read to mean that a person’s dealing activities with counterparties other than customers may be disregarded for purposes of the exception (i.e., noncustomer transactions would not count against the de minimis thresholds).374 Some commenters argued that 369 See, e.g., letters from CDEU, MFX II, NCGA/ NGSA II and SIFMA—Regional Dealers Derivatives Committee (‘‘SIFMA—Regional Dealers’’). 370 See letter from WGCEF I (arguing that basing the exception on customer protection principles would be contrary to the statutory framework, given that only ECPs are eligible to participate in offexchange swap transactions). 371 See letter from Better Markets I. 372 See, e.g., letters from FHLB I, IECA–Credit I, NCGA/NGSA I, NRG Energy, Peabody and WGCEF I. One commenter said the proportionality criteria should also consider an entity’s activities with respect to the physical commodity underlying its swaps. See letter from NCGA/NGSA I. But see letter from Better Markets I (supporting rejection of a proportionality test). Some commenters suggested more than one alternative approach. 373 See letter from Better Markets I. Another commenter said that the ‘‘customer’’ language serves to emphasize that the de minimis exception is available to entities that provide swaps to customers. See letter from NGFA I. 374 See letters from ISDA I, Vitol and WGCEF I. Another commenter said that the use of the term ‘‘customer’’ indicates that all transactions with physical commodity customers should be disregarded in determining if a person is a dealer. See letter from EDF Trading. E:\FR\FM\23MYR2.SGM 23MYR2 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations transactions entered into in a fiduciary capacity should be disregarded for purposes of the exception.375 One commenter questioned the proposal’s use of the term ‘‘counterparty’’ in lieu of the statutory term ‘‘customer.’’ 376 c. Proposed Tests and Thresholds Commenters criticized the proposed de minimis thresholds in a variety of ways. These included arguments that the proposed thresholds were inappropriately low,377 would harm end-users by reducing the number of entities willing to enter into low-value swaps and security-based swaps,378 would be unjustified on a cost-benefit basis,379 and were disproportionately low compared to the activities of recognized dealers.380 Other commenters said the de minimis thresholds should be set at a level to allow entities to engage in a meaningful amount of customer-facing swaps or security-based swaps without being required to register as dealers.381 A number of commenters particularly criticized the proposed notional threshold, with some commenters suggesting that the threshold should be based on a percentage of the total swap 375 See, e.g., letter from FSR I. letter from Vitol (suggesting that the proposed language meant that dealing activity involved ‘‘customers’’ but not ‘‘counterparties’’). 377 See, e.g., letters from API I, CDEU, DFA, EDF Trading, Farm Credit Council I, Growmark, Land O’Lakes dated January 13, 2011 (‘‘Land O’Lakes I’’), Midsize Banks, NCFC I, NCGA/NGSA II, New York City Bar Association—Committee on Futures and Derivatives Regulation (‘‘NYCBA Committee’’), Northland Energy, NRG Energy, Regional Banks and SIFMA—Regional Dealers. Some commenters also said that the thresholds, particularly those for swaps, should vary according to the riskiness of the swap or type of commodity underlying the swap. See letters from BG LNG I, Farm Credit Council I, Gavilon II, ISDA I, NFPEEU, Vitol and WGCEF I. 378 See, e.g., letters from API I, BG LNG IFarm Credit Council I, Midsize Banks, NCFC I, NGFA I, Regional Banks and SIFMA—Regional Dealers and meetings with Electric Companies on April 13, 2011, the Asset Management Group of SIFMA (‘‘SIFMA—AMG’’) on February 4, 2011 and WGCEF on April 28, 2011. 379 See, e.g., letters from CDEU and Vitol. Another commenter noted that application of a cost-benefit analysis of the de minimis threshold could be challenging. See Roundtable Transcript at 193–94 (remarks of Camille Rudge, The PrivateBank and Trust Company). 380 See letter from CDEU (citing statistics indicating that the average respondent to an ISDA survey had an annual ‘‘event volume’’ of over 297,000 OTC derivatives trade processing actions); see also letter from Regional Banks. 381 See meetings with Electric Companies on April 13, 2011, Gavilon on May 11, 2011 and WGCEF on April 28, 2011. mstockstill on DSK4VPTVN1PROD with RULES2 376 See VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 market 382 or some other fixed value,383 or arguing in favor of an exposure-based threshold in lieu of a notional threshold.384 Other commenters said that the aggregate notional amount of swaps is not a meaningful measure of an entity’s dealing activity.385 A few commenters supported the proposed notional threshold.386 Some commenters argued against basing the de minimis exception on the number of a person’s swaps or securitybased swaps or the number of a person’s counterparties,387 or supported increasing those thresholds above the proposed standard.388 Commenters also 382 See letter from COPE I (suggesting 0.001% of the total U.S. swap market, amounting to approximately $3 billion); see also letters from API dated June 3, 2011 (‘‘API II’’), EDF Trading, Edison Int’l, EEI/EPSA, IECA–Credit I, NCGA/NGSA II, NextEra, NFPEEU, Utility Group and WGCEF I (suggesting 0.001% of the total U.S. swap market). 383 See, e.g., meeting with Land O’Lakes on January 6, 2011 (suggesting the threshold be increased by 2 to 5 times—i.e., to $200 million to $500 million); letters from Growmark, FHLB I and MFX II (each supporting $1 billion notional standard); Regional Banks (supporting $2 billion notional standard); letter from NCFC dated October 31, 2011 (‘‘NCFC III’’) (supporting alternative notional standards of $1 billion or $3 billion depending on certain assumptions); letter from FSR VI and joint letter from Capital One, Fifth Third Bancorp and Regions Financial Corporation (suggesting notional standard of at least $2 billion); letter from WGCEF dated June 3, 2011 regarding the swap dealer definition (‘‘WGCEF V’’) (suggesting notional standard of $3.5 billion); and letter from IPR–GDF Suez Energy North America (suggesting notional standard of $10 billion). Some commenters suggested more than one possible threshold. 384 See, e.g., letters from Farm Credit Council I, FSR VI and Midsize Banks. Other commenters said the threshold should account for the effect of netting. See letters from API II, Chesapeake Energy, Land O’Lakes I and MFX II. On the other hand, one commenter specifically supported the use of the gross notional amount. See letter from Greenberger. 385 See letters from Farm Credit Council I, ISDA I, Land O’Lakes I, Midsize Banks, NCFC I, SIFMA— Regional Dealers and Vitol. 386 See letters from AFR, Better Markets I, Greenberger and NMPF. One of these commenters said that data on credit default swaps analyzed by the SEC’s Division of Risk, Strategy, and Financial Innovation indicates that the $100 million proposed notional thresholds are too high. See letters from Better Markets to CFTC and SEC dated April 6, 2012 (‘‘Better Markets III’’). 387 See, e.g., letters from API II, Atmos Energy, Chesapeake Energy, COPE I, EEI/EPSA, Gavilon II, IECA–Credit I, Land O’Lakes I, NCGA/NGSA II, NEM, NextEra I, NMPF, NRG Energy, Peabody and Utility Group. 388 See, e.g., letters from ISDA I (suggesting 25 transactions over 12 months); FHLB I (suggesting 25 counterparties and 50 transactions over 12 months) FSR I and Midsize Banks (each suggesting 75 counterparties and 200 transactions over 12 months); Regional Banks (suggesting 100 counterparties and 300 transactions over 12 months); Growmark and MFX II (suggesting thresholds should be increased by a factor of 10) and meeting with Land O’Lakes on January 6, 2011 (suggesting thresholds should be increased by a factor of between 2 and 5). One commenter said the number of transaction and number of counterparty standards should be PO 00000 Frm 00033 Fmt 4701 Sfmt 4700 30627 suggested a variety of other alternatives to the proposed tests.389 d. Additional Issues Some commenters emphasized the need to provide protections in connection with ‘‘special entities.’’ 390 Certain commenters sought to identify problems related to the application of the proposed thresholds in connection with particular types of businesses or markets,391 or to aggregators or disjunctive—i.e., a dealer’s activity would be de minimis if it were below either standard. See letter from Northland Energy. Other commenters raised questions about how counterparties or transactions should be counted for purposes of the standard. See letters from CDEU (novations should not be counted as new transactions) and J.P. Morgan (members of an affiliated group should be counted as one counterparty), joint letter from BB&T, East West Bank, Fifth Third Bank, The PrivateBank and Trust Company, Regions Bank, Sun Trust Bank, U.S. Bank National Association and Wells Fargo Bank, N.A. (‘‘Midmarket Banks’’) (questioning how to count multiple borrower counterparties to a loan and swap) and meeting with Land O’Lakes on January 6, 2011 (members of a cooperative should be counted as one counterparty). Last, some commenters said that the number of transaction or number of counterparty standards should be deleted because they are not useful as tests of de minimis status. See letters from Gavilon II (eliminate both standards) and SIFMA—Regional Dealers (eliminate number of counterparties standard). 389 See letters from IECA–Credit I (suggesting that exception exclude persons whose positions either are below a notional threshold or are below a combined proportionality and revenue threshold), SIFMA—Regional Dealers (supporting annual threshold of 500 customer-facing or riskless principal swaps, consistent with the de minimis exception from the Exchange Act ‘‘broker’’ definition in connection with bank brokerage activity, as well as SEC rules in connection with the Exchange Act definition of ‘‘dealer’’), FHLB I (supporting non-quantitative test accounting for relatively small swap-related exposure compared to primary customer activity, collateral that also provides credit support for other business done with the customer, an existing relationship with customer and inability of customer to obtain swaps from entities that primarily are dealers), Gavilon II (alluding to use of non-quantitative tests), MFX II (suggesting establishment of a separate qualitative process by which a dealer may establish why registration is not warranted) and DC Energy (thresholds should be set at a level appropriate to support the capital levels to be required for swap dealers). 390 See letters from Better Markets I (arguing that the de minimis exception should not be available in connection with transactions with special entities), AFR (similar), Greenberger (supporting reduction of the notional threshold for transactions with special entities to $5 million) and AFSCME. Some commenters said the standard for swaps and security-based swaps with special entities should be a notional value equal to 0.0001% of the total U.S. swap market. See letters from COPE I, EDF Trading, EEI/EPSA, IECA–Credit I, NFPEEU and Utility Group. One commenter said the threshold for special entities should be eliminated because it is not useful in determining de minimis status. See letter from Gavilon II. 391 See letters from BG LNG I (small energy companies), COPE I and Northland Energy (each discussing commodity markets, suggesting that notional thresholds be based on the unit of a E:\FR\FM\23MYR2.SGM Continued 23MYR2 30628 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES2 cooperatives.392 Other commenters suggested that the exception should focus dealer regulation toward ‘‘financial’’ entities.393 One commenter emphasized the need for the exception to be available when the end-user is a credit union, bank or thrift.394 Commenters sought clarification that the de minimis criteria would not apply to transactions for hedging or proprietary trading purposes,395 or to inter-affiliate transactions.396 Commenters also raised issues related to the exception’s treatment of the proposed use of a rolling annual period for calculations,397 the proposed use of ‘‘effective notional amounts,’’ 398 the possibility of adjusting the thresholds over time,399 how the de minimis tests would apply in the context of affiliated positions,400 and how the exception would account for swaps or securitybased swaps entered into before the definition’s effective date.401 Some commenters suggested that the de minimis thresholds be set higher initially to provide for efficient use of regulatory resources.402 One commenter requested clarification that the exception would apply prospectively commodity), NCFC I (commodity prices), NGFA I (grain elevators) and WGCEF I (energy prices). 392 See, e.g., letters from Growmark and Land O’Lakes I. 393 See letters from NEM, NextEra I, and NGFA I. 394 See letter from CUNA. 395 See, e.g., letters from API I, EDF Trading, Gavilon II and SIFMA—Regional Dealers. 396 See, e.g., letter from Atmos Energy Holdings, Inc (‘‘Atmos Holdings’’). 397 See letters from NCGA/NGSA I (supporting measurement of rolling period average over 12 months), NextEra I (supporting evaluation as of the last day of each calendar quarter rather than over the immediate preceding 12 months) and Northland Energy (requesting clarification that if a monetary notional amount is used, the evaluation periods should be fixed rather than rolling). 398 See letters from ISDA I (stating that the use of ‘‘effective notional amount’’ in the test introduces ambiguity and uncertainty) and WGCEF I (notional amounts should be measured on a ‘‘deltaequivalent’’ basis). 399 See letters from Farm Credit Council I (supporting automatic periodic increases to reflect changes in market size, the size of typical contracts and inflation), Greenberger (supporting reevaluation of the de minimis criteria on an ongoing basis), and BG LNG I, EEI/EPSA, NCFC I and WGCEF I (each supporting inflation or market size adjustments). 400 See meeting with Edison Int’l (requesting clarification that an entity that is prohibited from coordinating its financial derivatives activities should determine whether it qualifies for the de minimis exception without considering financial derivatives entered into by its affiliated entities). 401 See letter from Covington & Burling (urging clarification that lookback period will not commence until all the relevant regulations become effective). 402 See letters from BGLNG I and WGCEF V. See also Roundtable Transcript at 50–51 (remarks of Ron Oppenheimer, WGCEF), 57 (remarks of Richard Ostrander, Morgan Stanley) and 208–09 (remarks of Bella Sanevich, NISA Investment Advisors). VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 without regard to dealing activities taken prior to the effectiveness of Title VII.403 One commenter requested that a person that falls above the de minimis tests be able to take advantage of application and re-evaluation periods akin to those associated with the major participant definitions.404 Two commenters expressed support for the proposed self-executing approach of the exception.405 Some commenters requested clarification that the de minimis exception is independent of the loan origination exclusion in the CEA ‘‘swap dealer’’ definition.406 A number of commenters also addressed the application of dealer regulation to non-U.S. entities. While those comments did not specifically address the de minimis exception, the exception may be relevant to addressing these cross-border issues.407 One commenter separately addressed the credit default swap data analysis made available by CFTC and SEC staffs.408 The commenter expressed the view that this data supported the adoption of a de minimis threshold of $100 million or less, particularly focusing on the number of entities that may be excluded under particular thresholds.409 3. Final Rules—General Principles for Implementing the De Minimis Exception a. Balancing Regulatory Goals and Burdens The Commissions recognize that implementing the de minimis exception requires a careful balancing that considers the regulatory interests that could be undermined by an unduly broad exception as well as those regulatory interests that may be promoted by an appropriately limited exception. On the one hand, a de minimis exception, by its nature, will eliminate key counterparty protections provided 403 See letter from FSR I. letter from WGCEF I; see also Northland Energy (supporting grace period for registration if the de minimis threshold is exceeded). 405 See letters from ISDA I and Northland Energy. 406 See letters from FSR VI and Midsize Banks. 407 Some commenters particularly took the view that the application of the dealer definitions to nonU.S. persons should solely address those persons’ U.S. dealing activities. See letters from FSR I, ISDA ´ ´ ´ ´ I and Societe Generale. Some commenters also specifically identified concerns of international comity in this context. See letters cited in note 148, supra. The Commissions intend to address the application of dealer regulation to non-U.S. persons as part of separate releases that generally will address the application of Title VII to non-U.S. persons. 408 See letter from Better Markets III. 409 See id. 404 See PO 00000 Frm 00034 Fmt 4701 Sfmt 4700 by Title VII for particular users of swaps and security-based swaps.410 The broader the exception, the greater the loss of protection.411 Moreover, in determining the scope of the exception, it is important to consider not only the current state of the swap and securitybased swap markets, but also to account for how those markets may evolve in the future. This is particularly important because the full implementation of Title VII—including enhancements to pricing transparency and the increased access to central clearing—reasonably may be expected to facilitate new entrants into the swap and security-based swap markets. To the extent that such entrants engage in dealing activity below the de minimis threshold—either for the long term or until their activity surpasses the threshold—the relative amount of unregistered activity within the market may be expected to increase. Accordingly, a higher de minimis threshold may not only result in a certain percentage of unregistered activity being transacted initially, consistent with the current market, but also may result in an even greater proportion of unregistered activity being transacted in the future. On the other hand, the Commissions also recognize that Congress included a statutorily mandated de minimis exception for certain swap and securitybased swap dealing activity, and that an appropriately calibrated de minimis exception has the potential to advance other interests. For example, the de minimis exception may further the interest of regulatory efficiency when 410 A number of commenters expressed particular concerns as to the threats that an overbroad exception would pose to special entities. See letters from AFR (noting that Congress incorporated special protections for special entities in reaction to news reports about special entities losing millions of dollars ‘‘after signing up for derivatives deals they did not understand,’’ and urging the elimination of any de minimis exception for transactions with special entities); Better Markets I (stating that history has shown that special entities are vulnerable to abuse, and that they need capital, collateral and business conduct protections as much as or more than any other category of market participants); and AFSCME (expressing skepticism as to the view that dealer status would preclude firms from entering into transactions with special entities). Some of those commenters also generally supported the proposed $100 million de minimis threshold. See letters from AFR and Better Markets I; see also letter from Greenberger (stating that the dynamic nature of the derivatives sector of the financial markets should counsel caution, and that the de minimis threshold should be reevaluated on an ongoing basis). 411 Notwithstanding the reduction in protection, however, in the case of swaps and security-based swaps the general antifraud provisions of the CEA and the securities laws, respectively, including rules to be adopted by the SEC pertaining specifically to security-based swaps, will continue to apply to all transactions in security-based swaps. See, e.g., CEA section 4b(2), 7 U.S.C. 6b(2). E:\FR\FM\23MYR2.SGM 23MYR2 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES2 the amount of a person’s dealing activity is, in the context of the relevant market, limited to an amount that does not warrant registration to address the concerns implicated by government regulation of swap dealers and securitybased swap dealers. To advance this interest, it is necessary to consider the benefits to the marketplace associated with the regulation of dealers against the total burdens and potential impacts on competition, capital formation and efficiency associated with that regulation.412 In addition, the exception can provide an objective test for persons who engage in some swap or security-based swap activities that, in their view, potentially raise the risk that they would be deemed to be dealers.413 The exception also may permit persons that are not registered as dealers to accommodate existing clients that have a need for swaps or securitybased swaps in conjunction with other financial services or commercial activities, thus avoiding the need for such clients to establish separate relationships with registered dealers, which may have attendant costs. The exception further may promote competition in dealing activity within the swap or security-based swap markets, by helping to allow nonregistered persons to commence providing dealing services while avoiding the costs associated with fullfledged dealers. More competition within the market for swaps and security-based swaps may not only decrease the costs for participants in the market, but also may help to decrease systemic risk by lessening the current apparent concentration of dealing activity among a few major market participants.414 The statutory requirements that apply to swap dealers and security-based swap dealers include requirements aimed at the protection of customers and 412 While we are mindful that the Commissions have yet to adopt all the final substantive rules applicable to swap dealers and security-based swap dealers, we nonetheless believe that we have sufficient understanding of those potential requirements to reasonably balance the relevant factors to identify the initial level of dealing activity that should be considered to be de minimis. Moreover, finalizing the dealer definitions will help provide for the orderly and informed finalization of those other substantive rules governing swap dealers and security-based swap dealers. 413 ‘‘Congress incorporated a de minimis exception to the Swap Dealer definition to ensure that smaller institutions that are responsibly managing their commercial risk are not inadvertently pulled into additional regulation.’’ See 156 Cong. Rec. S6192 (daily ed. July 22, 2010) (letter from Senators Dodd and Lincoln to Representatives Frank and Peterson). 414 See 478 through 487 and accompanying text, infra. VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 counterparties,415 as discussed above, as well as requirements aimed at helping to promote effective operation and transparency of the swap and securitybased swap markets.416 The overall economic benefits provided by these requirements in large part will depend on the proportion of swaps and securitybased swaps that are transacted subject to these requirements. In other words, the greater the dealing activity of a registered dealer, the more significant the resulting increase in market efficiency,417 and the greater the reduction in risks faced by the entity’s customers and counterparties.418 These benefits can be expected to accrue over the long term and be distributed over the market and its participants as a whole. This is not to say, however, that it would be insignificant for any particular counterparty if its swaps or security-based swaps were to fall outside of the ambit of dealer regulation. For example, a customer or counterparty that is not protected by the business conduct rules applicable to dealers might be more likely to suffer losses associated with entering into an 415 As discussed above, in part, these customer and counterparty protections derive from the financial responsibility requirements applicable to dealers, particularly: capital and margin requirements (CEA section 4s(e); Exchange Act section 15F(e)), and requirements for segregation of collateral (CEA sections 4d(f), 4s(l); Exchange Act section 3E). These customer and counterparty protections also derive from certain other requirements applicable to dealers, particularly: requirements with respect to business conduct when transacting with special entities (CEA sections 4s(h)(2), 4s(h)(4), 4s(h)(5); Exchange Act sections 15F(h)(2), (h)(4), (h)(5)); disclosure requirements (CEA section 4s(h)(3)(B); Exchange Act section 15F(h)(3)(B)); requirements for fair and balanced communications (CEA section 4s(h)(3)(D); Exchange Act section 15F(h)(3)(C)); other requirements related to the public interest and investor protection (CEA section 4s(h)(3)(D); Exchange Act section 15F(h)(3)(D)); and conflict of interest provisions (CEA section 4s(j)(5); Exchange Act section 15F(j)(5)). 416 Relevant provisions are: reporting and recordkeeping requirements (CEA section 4s(f); Exchange Act section 15F(f)); daily trading records requirements (CEA section 4s(g); Exchange Act section 15F(g)); regulatory standards related to the confirmation, processing, netting, documentation and valuation of security-based swaps (CEA section 4s(i); Exchange Act section 15F(i)); position limit monitoring requirements (CEA section 4s(j)(1); Exchange Act section 15F(j)(1)); risk management procedure requirements (CEA section 4s(j)(2); Exchange Act section 15F(j)(2)); and requirements related to the disclosure of information to regulators (CEA section 4s(j)(3); Exchange Act section 15F(j)(3)). 417 For example, the more swaps or security-based swaps a dealer enters into, the more significant will be the efficiency benefits associated with confirmation, processing, netting documentation and valuation requirements applicable to dealers. 418 For example, the more swaps or security-based swaps a dealer enters into, the more significant the number of counterparties that will be protected by the disclosure and other business conduct obligations imposed on dealers. PO 00000 Frm 00035 Fmt 4701 Sfmt 4700 30629 inappropriate or misunderstood swap or security-based swap than if the instrument was transacted pursuant to the business conduct rules applicable to registered dealers. In contrast to the benefits associated with dealer regulation, many of the burdens of dealer regulation will accrue in the short term and will fall directly on registered dealers.419 Some of those burdens may be expected to be independent of the amount of an entity’s dealing activity (i.e., entities that engage in minimal dealing activity would still be expected to face certain burdens associated with the registration process and the development of compliance and other systems if they are required to register as dealers), while other burdens (e.g., the impact of margin and capital rules applicable to dealers) may be more directly linked to the amount of that entity’s dealing activity. As discussed below, the Commissions have sought to balance the various interests associated with a de minimis exception, as well as the benefits and burdens associated with such an exception, in developing the factors to implement the de minimis exceptions to the ‘‘swap dealer’’ and ‘‘security-based swap dealer’’ definitions. However, in moving forward with implementing this balancing approach, we recognize that the information that currently is available regarding certain portions of the swap market is limited. Following the full implementation of Title VII, more information will be available to permit us to assess the effectiveness of this balancing for particular markets and to revise the exception as appropriate. In that context—and in light of the tools currently available to us—we have been influenced, in particular, by comments taking the view that the de minimis factors should take into account the size and unique attributes of the market for swaps and security-based swaps.420 We believe that factors that exclude entities whose dealing activity is sufficiently modest in light of the total size, concentration and other attributes of the applicable markets can be useful in avoiding the imposition of 419 Certain commenters also have expressed concerns that the prospect of regulation may deter certain entities from engaging in limited swap or security-based swap dealing activities, see, e.g., letters from SIFMA—Regional Dealers and Midsize Banks, which could reduce the availability of those instruments. 420 See, e.g., letters from CDEU (comparing proposed thresholds with statistics regarding the activities of recognized dealers) and EEI/EPSA (recommending that thresholds be set at an amount equal to 0.001 percent of the aggregate size of the U.S. swaps market, and 0.0001 percent for swaps in which the counterparty is a special entity). E:\FR\FM\23MYR2.SGM 23MYR2 30630 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations regulatory burdens on those entities for which dealer regulation would not be expected to contribute significantly to advancing the customer protection, market efficiency and transparency objectives of dealer regulation. The Commissions note, however, that they are not of the general view that the costs of extending regulation to any particular entity must be outweighed by the quantifiable or other benefits to be achieved with respect to that particular entity. The Commissions, rather, analyze the overall benefits and costs of regulation, keeping in mind, as noted above, that the benefits may be distributed, accrue over the long-term, and be difficult to quantify or to measure as easily as certain costs.421 b. Specific Factors Implementing the De Minimis Exception i. Notional Test Consistent with the proposal, the final rules implementing the de minimis exception take into account the notional amount of an entity’s swap or securitybased swap positions over the prior 12 months arising from its dealing activity.422 While the Commissions recognize that notional amounts do not directly measure the exposure or risk associated with a swap or security-based swap position, such measures do reflect the relative amount of an entity’s dealing activity.423 Moreover, although mstockstill on DSK4VPTVN1PROD with RULES2 421 For example, it does not appear possible to demonstrate empirically—let alone quantify—the increase or decrease in the possibility that a financial crisis would occur at a particular future time and with a particular intensity in the absence of financial regulation or as a result of varying levels or types of financial regulation. It also is difficult to demonstrate empirically that the customer protections associated with dealer regulation would increase or decrease the likelihood that any particular market participant would suffer injury (or the degree to which the participant would suffer injury) associated with entering into an inappropriate swap or securitybased swap. At the same time, certain costs may also not be readily susceptible to quantification or measurement, for example, the costs that might be associated with diminished presence, if any, of new entrants. The inability to quantify these benefits and costs does not mean that the benefits and costs of dealer regulation are any less substantial. 422 See CFTC Regulation § 1.3(ggg)(4); Exchange Act rule 3a71–2(a)(1). Over the first year following the effective date of the final rules implementing the statutory definition of ‘‘swap’’ and ‘‘securitybased swap’’ as set forth in CEA section 1a(47) and Exchange Act section 3(a)(68), respectively, this notional test will be based on the person’s dealing activity following that effective date. See id. Accordingly, the analysis of whether a person may take advantage of the de minimis exception will not encompass the person’s dealing activity prior to that effective date, given the need for the person to know whether an instrument is a swap or securitybased swap for purposes of the analysis. 423 ‘‘Changes in notional volumes are generally reasonable reflections of business activity, and therefore can provide insight into potential revenue and operational issues. However, the notional VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 some commenters have posited measures of risk or exposure as alternatives to notional measures, such risk or exposure measures could, to the extent they allow for netting or collateral offsets, potentially allow an unregistered entity to engage in large amounts of swap or security-based swap dealing activity while remaining within the de minimis exception so long as that entity nets or collateralizes its swap or security-based swap positions. Such an outcome could undermine the customer protection and market operation benefits associated with dealer regulation. As with the proposed rules, the notional factor in the final rules is based on the notional positions of an entity over a 12 month period, rather than capping the current notional amount of a position at any time, to better reflect the amount of an entity’s current activity. The final rules, like the proposed rules, include lower notional thresholds for dealing activities in which the counterparty is a ‘‘special entity.’’ 424 This is consistent with the fact that Title VII’s requirements applicable to swap dealers and security-based swap dealers provide heightened protection to those types of entities.425 It is important that the de minimis exception not undermine those statutory protections.426 Also, consistent with the amount of derivatives contracts does not provide a useful measure of either market or credit risks.’’ OCC Quarterly Report at 8. 424 For these purposes, ‘‘special entity’’ means: (i) A Federal agency; (ii) a state, state agency, city, county, municipality, or other political subdivision of a state; (iii) any employee benefit plan, as defined in section 3 of the Employee Retirement Income Security Act of 1974 (‘‘ERISA’’); (iv) any governmental plan, as defined in section 3 of ERISA; or (v) any endowment, including an endowment that is an organization described in section 501(c)(3) of the Internal Revenue Code of 1986. See CEA section 4s(h)(2)(C) and CFTC Regulation § 23.401(c); Exchange Act section 15F(h)(2)(C). 425 See CEA sections 4s(h)(2), (4), (5); see also CFTC, Business Conduct Standards for Swap Dealers and Major Swap Participants with Counterparties; Final Rule, 77 FR 9733 (Feb. 17, 2012); Exchange Act sections 15F(h)(2), (4), (5) (providing additional requirements for dealers that advise special entities or that enter into swaps or security-based swaps with special entities). 426 The importance of the statutory protections for special entities has been highlighted by the SEC’s recent action in connection with the inappropriate sale of notes linked to the performance of synthetic collateralized debt obligations to a number of school districts. According to a complaint filed in federal district court, these securities were unsuitable for the investment needs of the school districts, were sold to school districts that lacked the requisite sophistication and experience to independently evaluate the risks of the investment, and exposed the school districts to a heightened risk of catastrophic loss ultimately led to a complete loss of their investments. ‘‘SEC Charges Stifel, Nicolaus and Former Executive with Fraud in Sale of Investments to Wisconsin School Districts,’’ SEC PO 00000 Frm 00036 Fmt 4701 Sfmt 4700 Proposing Release, these notional standards will be based on ‘‘effective notional’’ amounts when the stated notional amount is leveraged or enhanced by the structure of the swap or security-based swap.427 ii. Other Tests From the Proposing Release The proposed rules limited the number of swaps or security-based swaps that an entity could enter into in a dealing capacity, and the number of an entity’s counterparties in a dealing capacity. The final rules do not include those measures. In part, this reflects commenter concerns that a standard based on the number of swaps or security-based swaps or counterparties can produce arbitrary results by giving disproportionate weight to a series of smaller transactions or counterparties.428 c. Significance of Statutory ‘‘Customer’’ Language Consistent with the Proposing Release, the final rules implementing the de minimis exception do not require the presence of any type of defined ‘‘customer’’ relationship. In adopting these rules the Commissions have considered alternative approaches suggested by commenters, including one commenter’s suggestion that the de minimis exception should be available only in connection with swaps or security-based swaps entered into as part of a ‘‘customer’’ relationship.429 In considering that alternative view, however, we believe that it is significant that the statutory exception lacks terminology such as ‘‘existing’’ or ‘‘preexisting’’ that limits the availability of the exception or otherwise to distinguishes a ‘‘customer’’ relationship from other types of counterparty relationship. Also, while that alternative view could still permit an unregistered person to provide limited dealer services as an accommodation to an existing customer or counterparty, an interpretation that predicates the exception on the presence of a particular type of ‘‘customer’’ relationship would not advance other potential benefits associated with a de minimis exception, including the Litigation Release No. 22064 (Aug. 10, 2011) (https:// www.sec.gov/litigation/litreleases/2011/ lr22064.htm). 427 For example, if an exchange of payments associated with a $1 million notional equity swap was based on three times the return associated with the underlying equity, the effective notional amount of the equity swap would be $3 million. 428 See, e.g., letter from COPE I. 429 See letter from Better Markets I. E:\FR\FM\23MYR2.SGM 23MYR2 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations benefit of providing certainty in connection with the swap or securitybased swap activities of end-users.430 Accordingly, we do not believe that the ‘‘customer’’ reference standing alone provides a sufficient basis to conclude that the exception should only be available if there is an existing relationship of some type, and the final rules neither require that a dealer accommodate the demand of an existing customer nor require the presence of a preexisting relationship for the exception to apply. We also are not persuaded by the different commenter suggestion that the statutory de minimis exception’s ‘‘customer’’ language means that an unregistered dealer should be permitted to engage in unlimited dealing activity so long as its counterparties are not customers.431 Such an unlimited exception would appear to be contrary to the express language of the statutory exception. In addition, such an approach would lead to the perverse result of discouraging entities from entering into swaps or security-based swaps to facilitate risk management activities of customers (while encouraging other dealing activities), which appears contrary to Title VII’s general approach of seeking to limit undue impacts on the swap and security-based swap activities of commercial end-users. d. Focus on ‘‘Dealing’’ Activity mstockstill on DSK4VPTVN1PROD with RULES2 Some commenters suggested that we clarify that the limitations associated with the de minimis exception apply only in connection with a person’s dealing activities, and not to the person’s hedging or proprietary trading activities.432 The Commissions agree that the de minimis exception is intended to permit an unregistered person to engage in a limited amount of dealing activity without regard to the person’s non-dealing activity. Thus, to the extent that a particular swap or security-based swap position is not connected to dealing activity under the applicable interpretation of the statutory dealer definition, it will not count against the de minimis thresholds. Conversely, if a swap or security-based swap position is connected to the 430 As discussed above, see note 413, supra, there is legislative history that suggests that an intended purpose of the exception would be to ensure that the dealer definition does not encompass ‘‘smaller institutions that are responsibly managing their commercial risk.’’ 431 See, e.g., letter from ISDA I. 432 See, e.g., letters from SIFMA—Regional Dealers and EDF Trading. VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 person’s dealing activity, the position will count against those thresholds.433 Commenters also requested clarification that the de minimis thresholds do not apply to a person’s inter-affiliate swaps and security-based swaps, nor apply to swaps covered by the exclusion for swaps entered into by insured depository institutions in connection with the origination of loans to customers.434 Consistent with the discussion above,435 such swaps or security-based swaps do not constitute dealing activity and should not be counted against the de minimis thresholds. Similarly, swaps between a cooperative and its members, as provided in CFTC Regulation § 1.3(ggg)(6)(ii), and swaps entered into for the hedging purpose defined in CFTC Regulation § 1.3(ggg)(6)(iii) should not be counted against the de minimis threshold.436 In light of the increased notional thresholds of the final rules, and the resulting opportunity for a person to evasively engage in large amounts of dealing activity if it can multiply those thresholds, the final rules provide that the notional thresholds to the de minimis exception encompass swap and security-based swap dealing positions entered into by an affiliate controlling, controlled by or under common control with the person at issue.437 This is 433 For purposes of the de minimis exception to the security-based swap dealer definition, we note that one indicator of dealing activity under the dealer-trader distinction is that a person profit by providing liquidity in connection with securitybased swaps. Accordingly, for purposes of the de minimis exception to the security-based swap dealer definition, a security-based swap position that hedges or otherwise offsets a position that was entered into as part of dealing activity would itself comprise part of the person’s dealing activity, and hence count against the de minimis thresholds. For purposes of the de minimis exception to the swap dealer definition, we take the view that the relevant question in determining whether swaps count as dealing activity against the de minimis thresholds is whether the swaps fall within the swap dealer definition under the statute and the final rules, as further interpreted by this Adopting Release. If hedging or proprietary trading activities did not fall within the definition, including because of the application of CFTC Regulation § 1.3(ggg)(6), they would not count against the de minimis thresholds. 434 See, e.g., letters from Atmos Holdings and FSR I. 435 See parts II.B and II.C, supra. 436 Swaps and security-based swaps that hedge, mitigate, or offset the types of swaps and securitybased swaps discussed in the foregoing paragraph, which do not constitute dealing activity, similarly should not be counted against the de minimis thresholds. 437 See CFTC Regulation § 1.3(ggg)(4)(i); Exchange Act rule 3a71–2(a)(1). For these purposes, we interpret control to mean the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a person, whether through the ownership of voting securities, by contract or otherwise. This is PO 00000 Frm 00037 Fmt 4701 Sfmt 4700 30631 necessary to prevent persons from avoiding dealer regulation by dividing up dealing activity in excess of the notional thresholds among multiple affiliates.438 e. Alternative Approaches We Are Not Following Certain commenters have suggested alternative approaches to implementing the de minimis exception. While the Commissions have considered those suggested alternatives, we do not believe that they provide the optimal framework for implementing the exception. For example, some commenters took the position that the de minimis exception should focus dealer regulation on those entities whose dealing activities pose systemic risk, and excuse other dealers from having to register.439 Such an approach, however, would fail to account for regulatory interests apart from the control of systemic risk that are addressed by dealer regulation, including statutory provisions that protect customers and counterparties in other ways, and that promote effective market operations and transparency.440 Some commenters also have suggested that the de minimis exception should subsume a proportionality consistent with the definition of ‘‘control’’ and ‘‘affiliate’’ in connection with Exchange Act rules regarding registration statements. See Exchange Act rule 12b–2. The final rules use a control standard in connection with the de minimis notional thresholds as a means reasonably designed to prevent evasion of the limitations of that exception. This contrasts with the majority-ownership standard used by the inter-affiliate exclusions from the dealer and major participant definitions. See parts II.C.2 and IV.G.2, infra. That majority-ownership standard, which in application will not be expected to be satisfied in all circumstances in which a control standard is satisfied, is reasonably designed to reflect the economic alignment that appropriately underpins those exclusions. 438 In other words, for example, if a parent entity controls two subsidiaries which both engage in activities that would cause the subsidiaries to be covered by the dealer definitions, then each subsidiary must aggregate the swaps or securitybased swaps that result from both subsidiaries’ dealing activities in determining if either subsidiary qualifies for the de minimis exception. The SEC expects to address the application of this principle to the security-based swap activities of non-U.S. persons in a separate release. 439 See, e.g., letters from CDEU and SIFMA— Regional Dealers. 440 We also disagree with the suggestion that it would be inconsistent with the Title VII framework to consider customer protection issues in setting the de minimis factors. See letter from WGCEF I. While the restrictions on the availability of swaps and security-based swaps to non-ECPs help to mitigate certain customer protection concerns, Title VII includes specific safeguards designed to protect dealers’ customers and counterparties regardless of whether those are ECPs. It would not be consistent with Title VII to ignore those interests. E:\FR\FM\23MYR2.SGM 23MYR2 30632 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES2 standard, whereby an entity may be excluded from dealer regulation if its dealing activity comprises only a relatively small portion of its overall activities (or its overall swap or security-based swap activities), or if its dealing activity is ‘‘tangential’’ to its principal business.441 We are not incorporating that type of approach into the de minimis factors, however, because that approach would not appear to provide a logical way to balance the benefits and burdens of dealer regulation. A proportionality approach could permit a large entity to engage in a significant amount of dealing activity without being subject to dealer regulation, thus undermining the benefits of dealer regulation. Moreover, a proportionality approach could lead to arbitrary results by excusing a large entity from dealer regulation while requiring the registration of a smaller entity that engages in less total dealing activity (if that smaller amount of dealing activity comprises a greater portion of the smaller entity’s total activity).442 Some commenters also supported the use of non-quantitative standards in connection with the de minimis exception.443 Although we recognize that such an approach may help us weigh the facts and circumstances associated with a particular person’s dealing activity, we believe that it is more appropriate to base the exception on an objective quantitative standard, to allow the exception to be self-executing, and to promote predictability among market participants and the efficient use of regulatory resources. Unlike the overall definitions of ‘‘swap dealer’’ and ‘‘security-based swap dealers,’’ which consider the entirety of a person’s activities with respect to swaps, the de minimis exception is only relevant to persons who have determined that they are engaged in swap or security-based swap dealing, and are looking to determine whether the quantity of their dealing activity is de minimis. For this more particular and focused determination, an objective quantitative standard is more appropriate. Commenters also made various suggestions as to the types of factors and accompanying thresholds that should be used in connection with the de minimis 441 See letter from FHLB I. discussed below, if an entity is a dealer, the regulations applicable to dealers in general will govern all of the entity’s swap or security-based swap activities and positions. Depending on the applicable facts and circumstances, however, the entity may be able to avail itself of a limited purpose designation as a dealer. See part II.E, infra. 443 See letters from FHLB I, Gavilon II, and MFX II. 442 As VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 exception. Those suggestions are addressed more specifically below in the specific context of the swap dealer and security-based swap dealer de minimis exceptions. 4. Final Rules—De Minimis Exception to Swap Dealer Definition a. Overview of the Final Rule After considering commenters’ views, the final rule implementing the de minimis exception caps an entity’s dealing activity involving swaps at $3 billion over the prior 12 months.444 This amount is based on input from commenters and is supported by several rationales, including the estimated size of the domestic swap market, among others. As noted above, commenters who suggested a fixed notional standard proposed that the standard be set at a level between $200 million and $3.5 billion in notional amount of swaps entered into over a period of twelve months.445 In considering these comments, we are mindful of the variety of uses of swaps in various markets and therefore it is understandable that various commenters would reach different conclusions regarding the appropriate standard. At the same time, we see value in setting a single standard for all swaps so that there is a ‘‘level playing field’’ for all market participants and so that the standard can be implemented easily without the need to categorize swaps. Considering the written input of the commenters as well as the discussions of the de minimis standard at the Commissions’ joint roundtable and numerous meetings with market participants, and the benefits of the regulation of swap dealers (i.e., protection of customers and counterparties, and promotion of the effective operation and transparency of the swap markets), we believe a notional 444 CFTC Regulation § 1.3(ggg)(4). As noted above, for the first year following the effective date of the rules implementing the definition of ‘‘swap’’ the analysis would only address activity following that effective date. For clarity, the final rule also has been revised from the proposal to provide that persons taking advantage of the exception ‘‘shall be deemed not to be’’ swap dealers (the proposed rule used the phrasing ‘‘shall not be deemed to be’’ swap dealers) The final rule also reflects certain structural changes consistent with the substantive changes from the proposed rule. In addition, as discussed above, see part II.D.3.d, supra, the final rule has been revised to provide that the notional thresholds to the de minimis exception encompass swap dealing positions entered into by an affiliate controlling, controlled by or under common control with the person at issue. 445 One commenter suggested a threshold of $3 billion. See letter from COPE I (suggesting 0.001% of the total U.S. swap market, amounting to approximately $3 billion). Other commenters also supported a threshold of 0.001% of the total U.S. swap market. See letters cited in note 382, supra. PO 00000 Frm 00038 Fmt 4701 Sfmt 4700 standard at a level of $3 billion appropriately balances the relevant regulatory goals. As noted above, several commenters suggested that the standard be set at an amount equal to 0.001 percent of the overall domestic market for swaps. The Commissions note, however, that comprehensive information regarding the total size of the domestic swap market is incomplete, with more information available with respect to certain asset classes than others. The CFTC evaluated data regarding one particular type of swap—credit default swaps (‘‘CDS’’) based on indices of debt securities known as ‘‘index CDS’’—that was provided by the SEC.446 As noted in the CFTC analysis of this data, however, the information is not filtered to reflect activity that would constitute swap dealing under the Dodd-Frank Act, so it is not possible to use the data to draw conclusions regarding any specific entity’s status as a swap dealer.447 The data reflects only activity relating to index CDS, which constitute a very narrow part of the overall swap market, and, as noted in the CFTC analysis, similar data regarding other types of swaps is not available.448 Subject to these limitations, the data may help evaluate the impact of alternative approaches to implementing the de minimis exception. One often-cited measure of the market, the Quarterly Report on Bank Trading and Derivatives Activities issued by the OCC (‘‘OCC Quarterly Report’’) is both limited, in that it includes only data related to the activities of U.S. bank holding companies, commercial banks and trust companies, and over-inclusive, in that it includes activities related to instruments that are not or may not be included in the final definition of ‘‘swap’’ (including futures, forwards, certain foreign exchange instruments, and certain options) and it includes both swaps and security-based swaps. Nonetheless, the Commissions believe that the available (imperfect) data suggests that a $3 billion notional standard is generally consistent with the commenters’ suggestion of basing the standard on a percentage of the overall domestic market for swaps. The total notional value of $333.1 trillion in ‘‘derivatives’’ stated in the most recent OCC Quarterly Report includes approximately $221.1 trillion 446 The CFTC analysis was made available to the public. See memorandum to the public comment file from the CFTC Office of the Chief Economist. 447 See id. 448 See id. E:\FR\FM\23MYR2.SGM 23MYR2 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations in ‘‘swaps’’ and ‘‘credit derivatives.’’ 449 Since some instruments that are security-based swaps are included in this total,450 the total notional value of swap positions at U.S. bank holding companies, commercial banks and trust companies at the end of the second quarter of 2011 of may be estimated to be somewhat less than $221.1 trillion. This total notional value is by nature under-inclusive, because it reflects only swap positions at U.S. bank holding companies, commercial banks and trust companies and not the swap positions of other market participants. However, there are also reasons that the information from the OCC Quarterly Report may overstate the notional value of swaps that would be relevant to estimating the size of the domestic swap market for purposes of the de minimis standard. While we believe the data is not sufficiently precise at this time to serve as the sole basis for the notional standard, a standard of $3 billion seems that it is likely generally consistent with 0.001 percent of the domestic swap market that would be relevant to a potential dealer’s de minimis swap activity figure. First, the large majority of derivatives in the OCC Quarterly Report (approximately $229 trillion in notional value for commercial banks and trust companies) are derivatives between ‘‘dealers’’ (as defined for the purposes of the report.) 451 Thus, it is likely that a large part of the derivatives in the OCC Quarterly Report reflect transactions between financial institutions that will be swap dealers. It is also notable that approximately $204.6 trillion in notional value of the derivatives (i.e., not only swaps) mstockstill on DSK4VPTVN1PROD with RULES2 449 See Office of the Comptroller of the Currency, ‘‘Quarterly Report on Bank Trading and Derivatives Activities, Second Quarter 2011’’ at tables 1 and 2 (https://www.occ.gov/topics/capital-markets/ financial-markets/trading/derivatives/dq211.pdf). These totals reflect the sum of the amounts reported for the top 25 bank holding companies reported in table 1 and for all but the top 25 commercial banks and trust companies reported in table 2. However, this adjustment is only approximate, because the definitions of ‘‘swap’’ and ‘‘credit derivative’’ used in the OCC Quarterly Report are likely to be significantly different from the final definition of ‘‘swap’’ and ‘‘security-based swap’’ for purposes of the Dodd-Frank Act. For the same reason, it is uncertain how many of the notional value of $54.5 trillion in options reported in the OCC Quarterly Report are swaps or security-based swaps. Also, data from the CDS trade information warehouse maintained by the Depository Trust & Clearing Corporation (‘‘DTCC’’) indicates that total global notional CDS positions on indices amount to approximately $10.47 trillion. See https://dtcc.com/ products/derivserv/data_table_i.php?tbid=3 (data for the week ending October 7, 2011, obtained on October 17, 2011). 450 See part II.D.5, infra, for a discussion of the size of the security-based swap market. 451 See OCC Quarterly Report at Graph 1. VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 reported by U.S. commercial banks were interest rate contracts, many of which are swaps entered into by IDIs with customers in connection with the origination of loans which will be excluded from the determination of whether the IDIs are swap dealers.452 Finally, the OCC Quarterly Report measures swap positions held at a certain point in time, rather than the level of swap activity over a certain time period, again indicating that the figures are broader than those that would be subject to the de minimis figure. Accordingly, it appears that notional amount of the overall domestic market for swaps that actually would be relevant to determining the notional standard, and thus the appropriate basis for the 0.001 percent calculation, may be significantly lower than $331 trillion. Because there is merit in the 0.001 percent ratio suggested by several commenters, we believe an appropriate balance of the goal of promoting the benefits of regulation (while recognizing the unquantifiable nature of those benefits) against the competing goal of avoiding the imposition of burdens on those entities for which regulation as a dealer would not be associated with achieving those benefits in a significant way, would be reached by setting the notional standard for swaps at a level that is near (taking into account the uncertainties noted above) 0.001 percent of a reasonable estimate of the overall domestic market for all swaps between all counterparties. We believe a $3 billion notional value standard is appropriate taking all these considerations into account. b. Dealing Activity Involving Special Entities For swaps in which the counterparty is a special entity, the final rules set a notional standard consistent with the proposal of $25 million over the prior 12 months.453 The Commissions believe that this notional standard is appropriate in light of the special protections that Title VII affords to special entities. In adopting this threshold, we recognize the serious concerns raised by commenters stating that the de minimis exception should not permit any dealing activities (by persons who are not registered as swap dealers) involving special entities, in light of losses that special entities have incurred in the financial markets.454 However, the final rule does not fully exclude such dealing activity from the exception, in light of the potential 452 See OCC Quarterly Report at Graph 3. Regulation § 1.3(ggg)(4)(i). 454 See letters from AFR and Better Markets I. 453 CFTC PO 00000 Frm 00039 Fmt 4701 Sfmt 4700 30633 benefits that may arise from a de minimis exception. In this way, the threshold would not completely foreclose the availability of swaps to special entities from unregistered dealers, but the threshold would limit the financial and other risks associated with those positions for a special entity, which would in turn limit the possibility of inappropriately undermining the special protections that Title VII provides to special entities. c. Phase-in Procedure The Commissions believe that a phase-in period for the de minimis threshold would facilitate the orderly implementation of Title VII by permitting market participants and the Commissions to familiarize themselves with the application of the swap dealer definition and swap dealer requirements and to consider the information that will be available about the swap market, including real-time public reporting of swap data and information reported to swap data repositories. In addition, a phase-in period would afford the Commissions additional time to study the swap markets as they evolve in the new regulatory framework and allow potential swap dealers that engage in smaller amounts of activity (relative to the current size of the market) additional time to adjust their business practices, while at the same time preserving a focus on the regulation of the largest and most significant swap dealers. The Commissions also recognize that the data informing their current view of the de minimis threshold is based on the markets as they exist today, and that the markets will evolve over the coming years in light of the new regulatory framework and other developments. We have also considered that there may be some uncertainty regarding the exact level of swap dealing activity, measured in terms of a gross notional amount of swaps, that should be regarded as de minimis. While some quantitative data regarding the usage of swaps is available, there are many aspects of the swap markets for which definitive data is not available. We have also considered comments suggesting that the de minimis thresholds should be set higher initially to provide for efficient use of regulatory resources,455 or that implementation of the dealer requirements should be phased.456 For 455 See letters cited in footnote 402, supra. e.g., Roundtable Transcript at 35 (remarks of Ron Filler, New York Law School) and letters from FSR dated May 12, 2011 (‘‘FSR III’’) and WGCEF V. 456 See, E:\FR\FM\23MYR2.SGM 23MYR2 30634 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES2 all these reasons, the Commissions believe it is appropriate that the final rules provide for a phase-in period following the effective date during which higher de minimis thresholds would apply. In particular, during this phase-in period, a person’s swap dealing activity over the prior 12 months is capped at a gross notional value of $8 billion.457 With respect to swaps with special entities, the Commissions believe it is appropriate that the $25 million gross notional value threshold apply during the phase-in period.458 In light of the available data—and the limitations of that data in predicting how the full implementation of Title VII will affect dealing activity in the swap markets— the Commissions believe that the appropriate threshold for the phase-in period is an annual gross notional level of swap dealing activity of $8 billion or less. In particular, the $8 billion level should still lead to the regulation of persons responsible for the vast majority of dealing activity within the swap markets. Accordingly, the Commissions believe that while a $3 billion notional threshold reflects an appropriate longterm standard based on the available data,459 it also is appropriate to allow a degree of latitude in applying the threshold over time in the event that subsequent developments in the markets or the evaluation of new data from swap data reporting facilities suggest that the thresholds should be adjusted. In particular, the implementation of swap data reporting under the Dodd-Frank Act may result in new data that would be useful in confirming the Commissions’ determination to establish the $3 billion threshold which applies after the phasein period. For these reasons, review of the de minimis exception will comprise an important part of the reports that the CFTC is directing its staff to conduct with regard to the swap dealer definition during the phase-in period. Among other topics, the report should consider market data addressing swap dealing activity over a period of approximately two years, and any resulting changes in swap dealing activity, by dealers above and below the $8 billion phase-in threshold, and above 457 See CFTC Regulation § 1.3(ggg)(4)(i). limitation regarding swaps with special entities during the phase-in period is consistent with the Dodd-Frank Act’s goal of helping special entities be in a position to benefit from the counterparty protections associated with the regulation of registered swap dealers under Title VII. 459 See, e.g., part II.D.4.a, supra. 458 This VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 and below the $3 billion level applicable after the phase-in period. The report is required to be completed by the CFTC staff no later than 30 months following the date that a swap data repository first receives swap data under the CFTC’s regulations, and the report will be published for public comment.460 The CFTC will take this report, in conjunction with any public comment on it, into account in weighing further action on the de minimis exception at the end of the phase-in period. The final rules provide that nine months after publication of its staff report, the CFTC may, in its discretion, either promulgate an order that the phase-in period will end as of the date set forth by the CFTC in that order, or issue for public comment a notice of proposed rulemaking to modify the de minimis threshold, in which case the CFTC would also issue an order establishing the date that the phase-in period will end.461 The period of nine months provided in the rule is intended to provide the CFTC an opportunity to consider its staff report, public comments on the staff report and any other relevant information. The CFTC recognizes that the determination of the appropriate de minimis threshold is a significant issue requiring thorough consideration of a variety of regulatory and market factors. At the same time, the CFTC recognizes the need for predictability in how the de minimis exception will apply. Therefore, the final rules include a finality provision, stating that the phasein period will end no later than five years after the date that a swap data repository first receives swap data under the CFTC’s regulations.462 Persons who are able to avail themselves of the higher de minimis threshold that applies during the phasein period will not be required to do so. In particular, a person that is engaged in dealing activity involving swaps in excess of the $3 billion threshold may choose to commence the process for registering as a swap dealer during the phase-in period.463 d. CFTC Staff Report As noted above, the CFTC is directing its staff to report to the CFTC as to whether changes are warranted to the rules implementing the swap dealer definition, including the rule implementing the de minimis exception. We are mindful that following the full 460 See CFTC Regulation § 1.3(ggg)(4)(ii)(C). CFTC Regulation § 1.3(ggg)(4)(ii)(C). 462 See CFTC Regulation § 1.3(ggg)(4)(ii)(D). 463 See CFTC Regulation § 1.3(ggg)(4)(vi). 461 See PO 00000 Frm 00040 Fmt 4701 Sfmt 4700 implementation of Title VII—which itself is contingent on the implementation of the dealer definition—more data will be available to the CFTC via swap data repositories. We expect that this additional data will assist the CFTC in testing the assumptions and addressing the effects of the final rule we are adopting to implement the de minimis exception. For example, this data should help the CFTC assess, among other things, the nature and amount of unregulated dealing activity that occurs under the $3 billion threshold. The CFTC will make this report available for public comment so that it may benefit from additional input and analysis regarding the swap dealer definition. By making use of postimplementation data, the staff report (together with public comment on the report) will help the CFTC better evaluate the exception in light of potential market changes resulting from the full implementation of Title VII— including market changes resulting from the de minimis exception itself—as part of determining whether revised de minimis thresholds would be appropriate. The report and public comment thereon will also be taken into consideration by the CFTC in determining what action, if any, to take with respect to the phase-in period associated with the de minimis exception. The final rules provide, moreover, that the CFTC may change the requirements of the de minimis exception by rule or regulation.464 Through this mechanism, the CFTC may revisit the rule implementing the exception and potentially change that rule, for example, if data regarding the post-implementation swap market suggests that different de minimis thresholds would be appropriate.465 In determining whether to revisit the thresholds, the CFTC intends to pay particular attention to whether the de minimis exception results in a swap dealer definition that encompasses too many entities whose activities are not 464 CFTC Regulation § 1.3(ggg)(4)(v). CEA section 1a(49)(D) (like Exchange Act section 3(a)(71)(D)) particularly states that the ‘‘Commission’’— meaning the CFTC—may exempt de minimis dealers and promulgate related regulations. We do not interpret the joint rulemaking provisions of section 712(d) of the Dodd-Frank Act to require joint rulemaking here, because such an interpretation would read the term ‘‘Commission’’ out of CEA section 1a(49)(D) (and Exchange Act section 3(a)(71)(D)), which themselves were added by the Dodd-Frank Act. 465 See letter from Greenberger (stating that the dynamic nature of the derivatives sector of the financial markets should counsel caution, and that the de minimis threshold should be reevaluated on an ongoing basis). E:\FR\FM\23MYR2.SGM 23MYR2 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations significant enough to warrant full regulation under Title VII, or, alternatively, whether the de minimis exception leads an undue amount of dealing activity to fall outside of the ambit of the Title VII regulatory framework, or leads to inappropriate reductions in counterparty protections (including protections for special entities). The CFTC also intends to pay particular attention to whether alternative approaches would more effectively promote the regulatory goals that may be associated with a de minimis exception. 5. Final Rules—De Minimis Exception to ‘‘Security-Based Swap Dealer’’ Definition a. Overview of the Final Rule The final rule implementing the de minimis exception to the ‘‘securitybased swap dealer’’ definition has been revised from the proposal in a number of ways. As discussed above, the final rule does not incorporate proposed limits on the number of security-based swaps that a person may enter into in a dealing capacity, or on the number of security-based swap counterparties a person may have when acting in a dealing capacity.466 Moreover, the provisions of the exception that cap an unregistered person’s annual notional dealing activity with counterparties other than ‘‘special entities’’ have been increased from the proposed $100 million threshold.467 Instead, the final rule caps such dealing activity involving security-based swaps that are credit default swaps—which largely would consist of single-name credit default swaps—at $3 billion in notional amount over the prior 12 months.468 For other 466 See part II.D.3.b, supra. clarity, the final rule also has been revised from the proposal to provide that persons taking advantage of the exception ‘‘shall be deemed not to be’’ dealers (the proposed rule used the phrasing ‘‘shall not be deemed to be’’ dealers), and to provide that such persons ‘‘shall not be subject to Section 15F of the Exchange Act and the rules, regulations and interpretations issued thereunder.’’ See Exchange Act rule 3a71–2(a). The final rule also reflects certain structural changes consistent with the substantive changes from the proposed rule. In addition, as discussed above, see part II.D.3.d, supra, the final rule has been revised to provide that the notional thresholds to the de minimis exception encompass swap and security-based swap dealing positions entered into by an affiliate controlling, controlled by or under common control with the person at issue. 468 Exchange Act rule 3a71–2(a)(1)(i). The final rule, like the proposal, requires the analysis of de minimis levels to be based on effective notional amounts to the extent that the stated notional amount is leveraged or enhanced by the structure of the security-based swap (such as, for example, if the exchange of payments associated with an equity swap was based on a multiple of the return associated with the underlying equity). See Exchange Act rule 3a71–2(a)(3). mstockstill on DSK4VPTVN1PROD with RULES2 467 For VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 types of security-based swaps (e.g., single-name or narrow-based equity swaps or total return swaps), the exception caps an unregistered person’s dealing activity at $150 million in notional amount over the prior 12 months.469 Also, as addressed below, the final rule provides for phase-in levels in excess of those $3 billion and $150 million thresholds for a certain period of time. In addition, consistent with the proposal, the final rule caps an unregistered person’s security-based swap dealing activity involving counterparties that are ‘‘special entities’’ at $25 million in notional amount over the prior 12 months.470 The final rule further provides that the SEC may establish alternative methods of determining the scope of the de minimis exception by rule or regulation.471 b. Interests Associated With a De Minimis Exception In developing this final rule, we have sought to balance the interests advanced by the de minimis exception against the protections that would be weakened were the exception applied in an overbroad manner. In making this evaluation, we have taken into account data regarding the security-based swap market and especially data regarding the activity—including activity that may be suggestive of dealing behavior—of participants in the single-name credit default swap market.472 It is important to recognize that while these types of de minimis principles are relevant to the ‘‘security-based swap dealer’’ definition, they are not applicable to the general definitions of ‘‘broker’’ and ‘‘dealer’’ under the Exchange Act, or the brokerdealer registration requirements of Exchange Act section 15(a). Unlike the ‘‘security-based swap dealer’’ definition, those other definitions, with the exception of the bank-broker definition in section 3(a)(4)(B)(xi) of the Exchange Act, lack de minimis exceptions. 469 Exchange Act rule 3a71–2(a)(1)(ii). 470 Exchange Act rule 3a71–2(a)(1)(iii). 471 Exchange Act rule 3a71–2(d); see part II.D.5.f, infra. 472 Certain data has been addressed by an analysis regarding the market for single-name credit default swaps performed by the SEC’s Division of Risk, Strategy, and Financial Innovation. See ‘‘Information regarding activities and positions of participants in the single-name credit default swap market’’ (Mar. 15, 2012) (available at https:// www.sec.gov/comments/s7-39-10/s73910-154.pdf) (‘‘CDS Data Analysis’’). We believe that the data underlying this analysis provides reasonably comprehensive information regarding the credit default swap activities and positions of U.S. market participants, but note that the data does not encompass those credit default swaps that both: (i) do not involve U.S. counterparties; and (ii) are based on non-U.S. reference entities. Our reliance on this data, which we believe to be the best available, should not be interpreted to indicate our views as to the nature or extent of the application of Title VII to non-U.S. persons; instead, the SEC anticipates that issues regarding the extraterritorial PO 00000 Frm 00041 Fmt 4701 Sfmt 4700 30635 As discussed above, a de minimis exception eliminates key Title VII protections for some market participants by regulating less dealer activity. Conversely, an appropriately applied de minimis exception may provide an objective test when there is doubt as to whether particular activities may cause a person to be deemed to be a dealer; 473 allow non-dealers to accommodate the incidental security-based swap needs of existing clients; and help to facilitate competition by allowing the entry of new dealers into the market. In addition, as discussed above, a de minimis exception may promote regulatory efficiency by providing a framework to help focus dealer regulation upon those entities for which such regulation is warranted, rather than upon entities that engage in relatively limited amounts of dealing activity.474 i. Providing for Regulatory Coverage of the Vast Majority of Dealing Activity In seeking to develop a de minimis exception that preserves key counterparty and market protections while promoting regulatory efficiency, we have considered the comparative amount of security-based swap dealing activity that could fall outside the ambit of dealer regulation as a result of the exception. In doing so we have considered not only the security-based swap market as it currently exists, but also how the market reasonably may be expected to change after the full implementation of Title VII. In performing this comparative exercise we are, in part, drawing inferences from the CDS Data Analysis, a dataset released by the SEC staff that characterizes nearly all transactions in single-name credit default swaps during the 2011 calendar year.475 Though the final rules apply to all security-based swaps, not just single-name credit application of Title VII will be addressed in a separate release. As discussed below, see notes 476 and 485, infra, we also have considered more limited publicly available data regarding equity swaps. The CDS Data Analysis also included an appendix of data regarding index credit default swaps. We do not consider that data for purposes of the analysis described in this section because the statutory definition of ‘‘security-based swap’’ in relevant part encompasses swaps based on single securities or on narrow-based security indices. See Exchange Act sec. 3(a)(68)(A); see also Exchange Act Release No. 64372, 76 FR 29818 (May 23, 2011) (proposed rules further defining ‘‘security-based swap’’ and certain other terms). 473 We believe that the application of the dealertrader distinction and the guidance we have provided that distinguishes hedging activities from dealing activities in the security-based swap market will also help dealers meet their obligations. 474 See part II.D.3.a, supra. 475 See note 472, supra. E:\FR\FM\23MYR2.SGM 23MYR2 30636 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES2 default swaps, the SEC believes that these data are sufficiently representative of the market to help inform the analysis because an estimated 95 percent of all security-based swap transactions appear likely to be single-name credit default swaps.476 The SEC also recognizes that although the de minimis exception is applicable to persons only with respect to their dealing activity, the CDS Data Analysis contains transactions reflecting both dealing activity and non-dealing activity, including transactions by persons who may engage in no dealing activity whatsoever.477 As described more fully in the CDS Data Analysis, to ascertain which entities might be transacting as dealers, and which may not be, various criteria were employed as indicia of possible dealing activity. In each case, the results suggest the great extent to which there is currently a high degree of concentration of potential dealing activity in the single-name credit default swap market. For example, using the criterion that dealers are likely to transact with many counterparties who themselves are not dealers, analysis of 2011 transaction data show that only 28 out of 1,084 market participants have three or more counterparties that themselves are not recognized as dealers 476 While recognizing that the Commissions have yet to adopt final rules defining a ‘‘security-based swap,’’ we believe that single-name credit default swaps will constitute roughly 95 percent of the market, as measured on a notional basis, for instruments that will fall within that definition, with certain equity swaps (in other words, total return swaps based on single equities or narrowbased indices of equities) constituting the primary example of security-based swaps that are not credit default swaps. In particular, according to data published by BIS, the global notional amount outstanding in equity forwards and swaps as of June 2011 was $2.03 trillion, and the notional amount outstanding in credit default swaps was approximately $32.4 trillion. See Statistical Annex, BIS Quarterly Review (December 2011), at A10 (available at https:// www.bis.org/publ/qtrpdf/r_qs1112.pdf). Although the BIS data reflects the global OTC derivatives market, and not just U.S. market, we have no reason to believe that these ratios differ significantly in the U.S. market. In fact, OCC data regarding U.S. entities generally confirms these ratios, in that as of June 30, 2011, U.S. commercial banks and trust companies held $15.23 trillion in notional outstanding credit derivative positions and $677 billion in equity derivative positions, meaning that credit derivatives accounted for approximately 95 percent of the total credit and equity derivative positions held by these entities. See OCC Quarterly Report at tables 1 and 10. Cf. letter from Greenberger (referencing OCC data as relevant to determining size of swap market). 477 A person that is engaged in security-based swap dealing activity, for example, may also engage in proprietary trading involving security-based swaps that would be reflected in the transaction data. Even accounting for such possibilities, however, the SEC believes that the data nonetheless support the broad conclusion described below that dealing activity within the security-based swap market is highly concentrated. VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 by ISDA.478 As the data show, 15 of these 28 potential dealers exceeded a threshold of $100 billion notional transacted in single-name credit swaps during 2011, which accounts for over 98 percent of the 28 entities’ total activity.479 At a lower threshold of $10 billion notional, 21 of the 28 potential dealers are included (representing 99.7 percent of the activity of potential dealers), and at an even lower threshold of $3 billion notional, 25 potential dealers are included (representing 99.9 percent).480 Other criteria for identifying possible dealing activity based on the number of an entity’s non-dealer counterparties similarly suggest a high degree of concentration of dealing activity within the current security-based swap market.481 Criteria that consider the number of an entity’s total single-name security-based swap counterparties,482 478 See CDS Data Analysis at table 3c. The SEC recognizes that the analysis of this transaction data is imperfect as a tool for identifying dealing activity, given that the presence or absence of dealing activity ultimately turns upon the relevant facts and circumstances of an entity’s securitybased swap transactions, as informed by the dealertrader distinction. Criteria based on the number of an entity’s counterparties that are not recognized as dealers nonetheless appear to be useful for identifying apparent dealing activity in the absence of full analysis of the relevant facts and circumstances, given that engaging in securitybased swap transactions with non-dealers would be consistent with the conduct of seeking to profit by providing liquidity to others, as anticipated by the dealer-trader distinction. In emphasizing this criterion for identifying dealing activity, we are not seeking to predict with precision how many entities ultimately may register as security-based swap dealers. The ultimate number of dealers that may register can also be expected to reflect growth in the market, new dealing entrants, and in some cases the registration of multiple dealing entities within an affiliated group. 479 See CDS Data Analysis at table 3c. In particular, those 15 entities engaged in a total of $11.01 trillion in notional single-name credit default swap transactions over 2011, which reflects 98.5 percent of the total $11.18 trillion in notional transactions over 2011 for the 28 total identified possible dealers. 480 See id. The 21 possible dealers with a 2011 notional in excess of $10 billion account for a total of $11.15 trillion in notional single-name credit default swap transactions in 2011, or over 99.7 percent of the total. The 25 possible dealers in excess of $3 billion account for almost $11.18 in notional transactions in 2011, or over 99.9 percent of the total. 481 For example, two other criteria consider the number of an entity’s non-dealer counterparties (in those cases identifying as dealers those persons that have seven or more, or five or more, counterparties not recognized as dealers by ISDA) also indicate that potential dealers with notional amounts in excess of $100 billion in 2011 account for over 98 percent of the notional transactions of all entities meeting the applicable criteria in 2011. Potential dealers with notional transactions above $10 billion in 2011 (let alone those with notional transactions above $3 billion) reflect all or virtually the entire notional amount of all dealers identified by those criteria. See id. at tables 3a and 3b. 482 The CDS Data Analysis also sought to identify dealing activity based on the total number of an PO 00000 Frm 00042 Fmt 4701 Sfmt 4700 criteria that consider alternative factors for identifying dealing activity,483 and certain combined criteria 484 further entity’s counterparties. See id. at tables 2a through 2c. Those criteria similarly suggest a high degree of concentration of dealing activity within the singlename credit default swap market: i. A criterion that identifies potential dealing activity based on an entity having twenty or more counterparties in single-name security-based swaps identified 16 possible dealers. Fourteen of those entities had notional transactions in excess of $100 billion in 2011, reflecting over 99 percent of the total associated with all 16. The remaining two identified entities had notional transactions in excess of $10 billion in 2011. See id. at table 2a. ii. A criterion that identifies potential dealing activity based on an entity having 15 or more counterparties in single-name security-based swaps identified 33 possible dealers. Fifteen of those entities had notional transactions in excess of $100 billion in 2011, reflecting over 97 percent of the total associated with all 33. A total of 27 of those entities had notional transactions in excess of $10 billion in 2011, and a total of 32 of those entities had notional transactions in excess of $3 billion in 2011, both reflecting over 99 percent of the total. See id. at table 2b. iii. A criterion that identifies potential dealing activity based on an entity having 10 or more counterparties in single-name security-based swaps identified 154 possible dealers. Fifteen of those exceeded $100 billion in notional transactions in 2011, reflecting over 90 percent of the total; 49 of those exceeded $10 billion in notional transactions in 2011, reflecting over 97 percent of the total; and 93 exceeded $3 billion in notional transactions in 2011, reflecting over 99 percent of the total. See id. at table 2c. In considering the data we are weighing these criteria less heavily than we are weighing the criteria based on the number of counterparties who are not identified by ISDA as dealers. This is because it is reasonable to foresee a non-dealer making use of multiple dealers to get the best possible price or to make use of special expertise possessed by certain dealers, meaning that the criteria discussed in this footnote are more likely to identify entities not engaged in dealing activity. 483 Other criteria in the CDS Data Analysis sought to identify dealing activity based on whether an entity maintains a relatively flat book. Those criteria also indicated that entities with notional transactions in excess of $100 billion in 2011 represented over 97 percent of the total for all entities identified by those criteria, while entities with notional transactions in excess of $10 billion in 2011 represented over 99 of the total for all entities identified by those criteria. See id. at tables 4 and 5. We are weighing those criteria less heavily than we are weighing the counterparty-based criteria discussed above because an entity that engages in directional trades could also appear to have a flat book if its portfolio contained transactions representing various directional bets, but of similar aggregate notional sizes on both sides of the market. See id. at 3. The analysis also included one criterion that considers potential dealing activity based on a low propensity to post margin. See id. at table 6. While we do not believe that this analysis deserves the same degree of weight as the others, given concerns about the completeness of the data (see id. at 4), we note that this criterion nonetheless also indicates a high concentration of dealing activity in the market. See id. at table 6 (indicating that of the 473 entities identified by this criterion, the 14 entities with notional transactions in excess of $100 billion in 2011 account for roughly 94 percent of the total notional transaction activity associated with all 473 entities over 2011). 484 Finally, the CDS Data Analysis also included criteria that identified potential dealing activity E:\FR\FM\23MYR2.SGM 23MYR2 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations suggest a high concentration of dealing activity within the security-based swap market. While less data are available in connection with other types of instruments constituting security-based swaps, such as equity swaps, the available data similarly suggest a high concentration of positions in those instruments among potential dealers.485 Though inspection of the data does not seem to suggest a single precise de minimis threshold, the above analysis of potential dealing activity is useful in that it reveals a range of possible thresholds from $100 billion to $3 billion that would cover anywhere from 98 percent through 99.9 percent of the total activity of all potential dealers in 2011. However, these thresholds—and their implied market coverage ratios— only reflect levels of activity that exist in today’s highly concentrated market. In order to further narrow the range of possible thresholds, and to select an appropriate level for the de minimis exception, the analysis must consider the potential state of the market as it might reasonably exist after the implementation of Title VII. mstockstill on DSK4VPTVN1PROD with RULES2 ii. Avoiding Gaps Resulting From the Regulatory Changes in Conjunction With the Exception Although the overall portion of security-based swap activity that would appear to be subject to dealer regulation based on current measures of dealing based on an entity meeting two or three of the other criteria considered. See id. at tables 7 and 8. These criteria again indicate a high degree of concentration of dealing activity in the market. The analysis that addressed whether an entity met two of the other criteria identified 92 possible dealers, with the 15 entities having notional transactions in excess of $100 billion in 2011 representing over 96 percent of the total activity of those 92 entities in 2011. See id. at table 7. The analysis that addressed whether an entity met three of the other criteria identified 41 possible dealers, with the 15 entities having notional transactions in excess of $100 billion in 2011, representing over 98 percent of the total activity of those 41 entities in 2011. See id. at table 8. 485 For example, OCC data shows that, of the five largest bank or trust companies, four have notional equity derivative positions of above $1 billion, and that those four entities account for $630 billion in notional positions out of $677 billion for all U.S. commercial banks or trust companies, which constitutes approximately 93 percent of the total. See OCC Quarterly Report at table 10. Similarly, a review of the equity swaps positions of the 50 largest U.S. bank holding companies shows that nine bank holding companies have notional equity swap positions exceeding $1 billion, and account for 99.5 percent of the total positions held by such companies, and 29 have no positions in equity swaps. (Data was compiled from each bank holding company’s FR 9–YC, available at https:// www.ffiec.gov/nicpubweb/nicweb/ Top50Form.aspx). Cf. letter from WGCEF V (referencing swap position data from bank holding companies’ Forms FR Y–9C as relevant to determining size of the swap market). VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 concentration in the market constitutes an important factor to consider in balancing the regulatory burdens and benefits associated with a de minimis exception, analysis of the current market should not serve as the sole mechanism for setting the exception. In particular, sole reliance on an approach that focuses on current measures of market concentration would not adequately account for likely changes to the market associated with the implementation of regulation. In part, these changes may be a direct result of the full implementation of Title VII—including enhancements to transparency and increases in central clearing—as those changes reasonably may be expected to reduce the concentration of dealing activity within the market over time.486 Also, to the extent implementation of Title VII permits new dealers to enter the market, the availability of a de minimis exception would mean those new dealing entrants would fall outside the ambit of dealer regulation, either for the long term or until their dealing activity surpasses the applicable notional threshold.487 Accordingly, de minimis thresholds that are based solely on the current state of the market, including the current concentration of dealing activity within the market, may reasonably be expected to fail to account for the amount of dealing activity that in the future could fall outside of the ambit of dealer regulation due to the exception.488 For example, as discussed above, when possible dealers in single-name credit default swaps are identified by an entity having three or more 486 Cf. Bessembinder and Maxwell, ‘‘Transparency and the Corporate Bond Market,’’ Journal of Economic Perspectives, Spring 2008, at 217, 226 (noting that after reporting of U.S. OTC bond transactions through the Trade Reporting and Compliance Engine (‘‘TRACE’’) became mandatory, the portion of trades completed by the 12 largest dealers fell from 56 percent to 44 percent). 487 We understand that large dealers have competitive advantages under the current market, in light of the desire of counterparties to engage in security-based swap transactions with large, well capitalized and highly rated dealers. See, e.g., Craig Pirrong, Rocket Science, Default Risk and The Organization of Derivatives Markets, Working Paper, University of Houston (2006) (available at https://www.cba.uh.edu/spirrong/Derivorg1.pdf). The lower business costs associated with being unregulated may prove to partially offset that advantage. At the same time, we reasonably may expect that informed counterparties will take into account the lower protections—and higher risks— associated with transactions with unregulated dealers in determining whether to use regulated or unregulated dealers as counterparties. 488 We note that there also are benefits to increased competition and a decrease in concentration of dealer activity, as contemplated by Title VII, including potentially lower costs for market participants and a decrease in systemic risk. PO 00000 Frm 00043 Fmt 4701 Sfmt 4700 30637 counterparties that are not recognized by ISDA as being dealers, entities with notional transactions in excess of $100 billion over a 12 month period represent over 98 percent of the total activity of all such possible dealers over that period, leaving two percent of possible dealing activity below that level.489 However, a de minimis threshold of $100 billion would allow new entrants to commence engaging in unregulated dealing in competition with persons who are regulated as dealers pursuant to Title VII, which, depending on the number and size of such entrants, could significantly decrease the portion of dealing activity in the market done by registered dealers (at least until the point that new entrants cross the de minimis threshold, if they do at all). For example, if 15 new entrants 490 were to engage in security-based swap dealing activity up to a $100 billion threshold, the result could be that nearly 15 percent of dealing activity within the single-name credit default swap market would be left outside of the ambit of dealer regulation.491 489 See CDS Data Analysis at table 3c; see also note 479, supra. As noted above, these amounts may not only reflect dealing activity by an entity. Thus, even putting aside the possibility of new unregulated entrants into the market, the portion of dealing activity in the market that is represented by entities whose trailing notional dealing activity exceeds $100 billion may in fact be less than 98 percent. 490 The illustrative use of new entrants for purposes of this discussion is intended to reflect the potential that new entrants to the market could take advantage of a de minimis threshold in a way that leads to a higher level of unregulated dealing activity within the market. In using this illustration we are not seeking to explicitly predict how many new entrants may come into the market in response to any particular de minimis threshold, nor are we seeking to predict how many new entrants may seek to stay under the de minimis thresholds and how many instead would seek to use the exception as a step on the way to eventually registering as a security-based swap dealer. Rather, we simply are illustrating why it is important to account for market changes in connection with setting the de minimis threshold. The OTC Derivatives Supervisors Group—a group chaired by the Federal Reserve Bank of New York and consisting of the CFTC and SEC as well as other international supervisors and major over-thecounter derivatives market participants—currently recognizes 15 major OTC derivatives dealers. Accordingly, as an illustrative example, we have assumed that this number of significant securitybased swap dealers would approximately double— i.e., include 15 new dealers—in the wake of the various regulatory changes contemplated by the Dodd-Frank Act, many of which may result in increased access and competition in the securitybased swap market (e.g., enhanced priced transparency and increased access to central clearing). However, we emphasize that this number has been selected as an illustrative example, and have accordingly provided similar examples assuming ten and five new entrants. 491 Fifteen new entities that each engage in $100 billion in dealing activity would reflect $1.5 trillion in additional dealing activity outside the ambit of E:\FR\FM\23MYR2.SGM Continued 23MYR2 30638 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES2 Similarly, a de minimis threshold of $25 billion may also lead to a material reduction in the portion of the market covered by registered dealers. For example, using the same assumptions as above, 15 new entrants up to a $25 billion threshold could leave over four percent of dealing activity in the market outside of the ambit of dealing regulation.492 When other metrics are used to identify possible dealing activity, the possibility of a significant regulatory gap remains.493 dealer regulation, which could lead to roughly 14.9 percent of total dealing activity being outside the ambit of dealing regulation (with that $1.5 trillion being added to the existing $168 billion reflected by entities that fall below the $100 billion threshold, and that sum divided by $11.18 trillion, under the assumption that the new entrants displace business from the fifteen entities above the de minimis threshold). To further illustrate, under the same assumptions and analysis, the implied unregulated market share would be roughly 10.4 percent for ten new entities and 6.0 percent for five new entities. In certain regards these illustrations, on the one hand, may overestimate the effect of new entrants because of the assumption that such entrants engage in dealing activities up to, but not surpassing, the de minimis threshold. While it is not impossible that some entities may seek to use the de minimis exception to conduct business as an unregulated niche dealer, it also is plausible that entities generally may seek to use the exception to commence engaging in dealing activity, with the goal of ultimately becoming registered dealers that are not constrained by the de minimis threshold. On the other hand, these illustrations in certain respects may underestimate the amount of dealing activity that can fall outside of the regulatory ambit. For example, the amounts of security-based swap activity of persons identified in the analysis as dealers may not exclusively constitute dealing activity, meaning that persons whose notional transactions over a 12-month period exceed a particular threshold in fact may not be engaged in that amount of dealing activity, and hence may still be able to take advantage of the de minimis exception. Also, these illustrations do not seek to reflect increased activity by existing dealers that already fall below the assumed threshold. 492 Fifteen new entities each engaged in $25 billion in dealing activity would reflect $375 billion in additional dealing activity outside the ambit of dealer regulation, which could lead to 4.1 percent of total dealing activity being outside the ambit of dealing regulation (with that $375 billion being added to the existing $80.2 billion reflected by entities that fall below the $25 billion threshold, and that sum divided by $11.18 trillion, under the assumption that the new entrants displace business from the seventeen entities above the de minimis threshold). To further illustrate, under the same assumptions and analysis, the implied unregulated market share would be 3.0 percent for 10 new entities and 1.8 percent for 5 new entities. Obviously, these illustrations are subject to the same limitations as are discussed above in the context of the $100 million threshold illustration. 493 For example, similar results are obtained when possible dealing activity is identified based on whether an entity passes at least three of the other metrics discussed above. See CDS Data Analysis at table 8. Using the same types of assumptions as are discussed above, with fifteen new entities, a de minimis threshold of $100 billion could lead to 15.0 percent of dealing activity falling outside the ambit of dealer regulation, while a de minimis threshold of $25 billion could lead to 4.2 percent of dealing activity falling outside of regulation. VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 Overall, it is reasonable to conclude that the higher the de minimis threshold, the greater the likelihood that the exception, combined with other changes resulting from the implementation of Title VII that may encourage new entrants, will lead to a proportionately larger amount of unregulated (except with respect to antifraud and anti-manipulation prohibitions) dealing activity.494 We believe that it is reasonable to interpret the statutory language of the de minimis exception in a way that prevents a proportionately large amount of dealing activity within the security-based swap market from falling outside the ambit of dealer regulation. Accordingly, choosing to set a lower de minimis threshold from among the range of potential thresholds would limit the amount of potential future dealing activity that could be transacted without being subject to dealer rules and regulations.495 iii. Promoting Statutory Counterparty Protections Sole reliance on an approach based on overall market coverage in balancing regulatory burdens and benefits would also threaten to unduly discount important counterparty protection interests, as discussed above and highlighted in the proposal.496 For example, in light of data indicating that $5 million constitutes a common notional size for a single-name credit default swap position,497 a de minimis 494 As noted above, encouraging new entrants also has benefits flowing from increased competition and a decrease in concentration of dealer activity. See note 488, supra. 495 For example, 15 new dealer entrants engaged in up to $3 billion in dealing activity would account for up to $45 billion in dealing activity. This result would mean approximately 0.4 percent of total potential future dealing activity could be transacted by unregistered dealers, as opposed to the potential for approximately 15 percent of potential future dealing activity to be transacted by unregistered dealers if the de minimis were set to $100 billion. See CDS Data Analysis at table 3c. As with the illustrative examples above, these calculations assume that the new entrants displace business from the entities above the de minimis threshold. 496 See part II.D.3.a, supra; see also Proposing Release at 80180 (highlighting ‘‘customer protection issues raised by swaps and security-based swaps— including risks that counterparties may not fully appreciate when entering into swaps and securitybased swaps’’). 497 See Federal Reserve Bank of New York staff report, ‘‘An Analysis of CDS Transactions: Implications for Public Reporting’’ (2011) at 8 (stating that for dollar-denominated single name CDS on corporate or sovereign reference entities, $5 million represented the most common notional size) (available at https://www.newyorkfed.org/ research/staff_reports/sr517.pdf); see also Proposing Release at 80180 (noting ‘‘that in general the notional seize of a small swap or security-based swap is $5 million or less’’). We note, by comparison, that Congress has determined that a de minimis amount of securities PO 00000 Frm 00044 Fmt 4701 Sfmt 4700 notional threshold of $25 billion annually would permit an unregistered dealer to engage in as many as 5000 trades of that size. The counterparties to these unregistered dealers would not receive the benefit of the protections that Title VII affords to the counterparties of registered dealers. These include, among others, the segregation protections afforded to persons who post margin to dealers in connection with over-the-counter security-based swap transactions.498 Accordingly, this consideration also suggests that choosing a de minimis threshold closer to the lower end of the range of potential thresholds would better preserve the counterparty protections contemplated by Title VII. c. Balancing Reflected in the Final Rules—Credit Default Swaps That Constitute Security-Based Swaps The final thresholds that implement the de minimis exception (and corresponding phase-in levels) address security-based swaps that are credit default swaps separately from other types of security-based swaps, in light of differences in the respective markets. i. General Threshold for Credit Default Swaps That Constitute Security-Based Swaps We conclude that $3 billion over the prior 12 months constitutes an appropriate notional threshold for applying the de minimis exception in connection with dealing activity involving credit default swaps that constitute security-based swaps. broker activity by banks entails 500 trades annually. See Exchange Act section 3(a)(4)(B)(xi) (excluding from the ‘‘broker’’ definition a bank that annually effects no more than 500 securities transactions, other than transactions subject to certain other exceptions, so long as the transaction is not effected by a bank employee that also is a broker-dealer employee). We further note that, while the number of counterparties or transactions potentially implicated by unregistered dealing activity is an important consideration in establishing an initial de minimis level, it does not alter our view, described above, that a single de minimis standard based on notional value—rather than the proposal’s framework of three distinct standards based on notional value, number of counterparties, and number of transactions—is an appropriate choice in light of concerns expressed by commenters that a standard based on the number of transactions or counterparties can produce arbitrary results. See part II.D.3.b.ii, supra. 498 Exchange Act section 3E, which was added by section 763(d) of the Dodd-Frank Act, provides a series of requirements in connection with the segregation of assets held as collateral in securitybased swap transactions. These include requirements that security-based swap dealers and major security-based swap participants provide their counterparties with notice that they have the right to require segregation, and that such segregation must be at an independent third-party custodian. E:\FR\FM\23MYR2.SGM 23MYR2 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations In reaching this conclusion, we recognize the significance of comments that supported the proposed $100 million threshold,499 and that urged caution in raising that proposed threshold,500 as well as commenters who supported increases to the threshold.501 We further recognize the importance of applying the de minimis exception in a way that promotes regulatory efficiency. We also recognize the range of potential thresholds suggested by the data currently available. Based on the competing factors described above, we believe that $3 billion reflects a reasonable notional threshold—though not necessarily the only such threshold. In our view, the currently available data regarding the single-name credit default swap market indicates that a notional threshold of $3 billion would be expected to result in the regulation, as dealers, of persons responsible for the vast majority of dealing activity within that market, both as of today and, as described above, in the future as the benefits of the other Title VII rules are implemented and new dealer entrants come to market.502 In providing for a $3 billion notional threshold, we also recognize the threshold would permit an unregistered 499 See letters from Better Markets I and AFR. letter from Greenberger. 501 See, e.g., letter from COPE I. 502 Of the 28 market participants that have three or more security-based swap counterparties that themselves are not recognized by dealers by ISDA, 25 had notional single-name credit default swap positions in excess of $3 billion in 2011. The remaining three entities in total accounted for only $3.59 billion in notional transactions in 2011, reflecting less than 0.1 percent of the $11.18 trillion total for those 28 market participants. See CDS Data Analysis at table 3c. The other criteria set forth in the analysis for identifying possible dealing activity in general similarly indicate that entities with notional transactions in excess of $3 billion in 2011 account for more than 99 percent of the total notional transactions of all identified entities in 2011. See id. at tables 2a–c, 3a–b, 4, 5, 7 and 8. While the criterion based on the posting of initial margin only indicates 98 percent coverage for all of the 473 identified entities, see id. at table 6, as discussed above we believe it is appropriate to provide less weight to that criterion, which is based on voluntary reporting. As noted above, see note 478, supra, we recognize that the underlying market data encompasses all of the security-based swap activity of persons identified as dealers, not only their dealing activity. Because the thresholds that implement the de minimis exception address only a person’s dealing activity, this raises the possibility that the analysis overstates the extent to which a $3 billion threshold would encompass persons responsible for dealing activity within the single-name security-based swap market. Even with that possibility, however, we believe that the data indicates such a high concentration of dealing activity within the market that it is reasonable to conclude that a $3 billion threshold likely would encompass persons responsible for the vast majority of dealing activity within the market. mstockstill on DSK4VPTVN1PROD with RULES2 500 See VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 dealer annually to engage in up to 600 security-based swaps (as opposed to 20 transactions under the proposed threshold, assuming a $5 million average notional size). In this regard, we note that Congress, in another statutory de minimis exception within the Exchange Act, determined that 500 securities transactions annually constituted a de minimis amount of transactions for banks under the ‘‘broker’’ definition.503 We further believe that a $3 billion threshold appropriately addresses commenter concerns regarding the de minimis exception being unduly narrow.504 In adopting this $3 billion threshold, we have carefully considered one commenter’s view that the CDS Data Analysis suggests that the proposed $100 million threshold in fact is too high, and that any increase in that proposed $100 million threshold would be arbitrary and capricious.505 In reaching these conclusions, the commenter focused on the number of entities that potentially are engaged in dealing activity but that could be excluded based on particular de minimis thresholds. For example, the commenter indicated that pursuant to one of the CDS Data Analysis’s combined metrics for identifying dealing activity, a de minimis threshold of $3 billion could lead to the exclusion of up to 58 percent of all persons engaged in possible dealing activity. The commenter further suggested that some entities engaged in dealing activity may reduce their activities to take advantage of the de minimis exception and hence reduce liquidity, and argued that there would be no basis for the exception to be based on a market participant’s percentage of total security-based swap activity.506 503 See Exchange Act section 3(a)(4)(B)(xi); see also letter from SIFMA—Regional Dealers (supporting a threshold of 500 trades consistent with the statutory de minimis exception in connection with bank brokerage activity). 504 For example, $3 billion is equal to the threshold suggested by many commenters in the context of the swap market, which is much larger than the security-based swap market. See letter from COPE (supporting a 0.001 percent notional threshold based on the overall swaps market, which would amount to $3 billion). Indeed, this $3 billion threshold appears to reflect roughly 0.024 percent of the overall market for single-name credit default swaps, a percentage that is much greater than the 0.001 percent multiplier that a number of commenters (see, e.g., letters cited in note 382, supra) suggested in the swap market context. See CDS Data Analysis at table 1 (indicating that participants in the single-name credit default swap market engage in a total of $12.6 trillion in singlename credit default swap transactions in 2011). 505 See letter from Better Markets III. 506 The letter also raised issues regarding the ‘‘customer’’ language of the exception and argued that the de minimis exception should not represent PO 00000 Frm 00045 Fmt 4701 Sfmt 4700 30639 It is important to recognize that while the commenter focused on the number of entities that might be excluded pursuant to the exception, and suggested that higher notional dollar amount thresholds could lead to the exclusion of a larger number of entities, the statutory provision for the de minimis exception does not require the exemption of a ‘‘de minimis number’’ of dealers. The statute instead requires the exemption of persons engaged in a ‘‘de minimis quantity’’ of dealing activity.507 The statutory language therefore indicates that the focus of the rule implementing the exception should be the amount of an entity’s dealing activity, not how many entities ultimately may be able to take advantage of the exception. Also, although the commenter implied that there would be no basis for the rule implementing the exception to take into account a market participant’s security-based swap dealing activity compared to total dealing activity in the market, for the reasons discussed in this section we believe that such an approach can appropriately provide for the regulatory coverage of the vast majority of dealing activity in a way that promotes regulatory efficiency, without leading to unwarranted regulatory gaps. In contrast, in our view the commenter did not persuasively articulate a strong rationale for adopting the alternative approach proposed in the letter, which would appear to lead to the registration of a number of dealers that proportionately engage in a very small amount of dealing activity.508 In support of its approach, the commenter emphasized data regarding persons who meet certain combined criteria outlined in the CDS Data a risk-based test. We address those issues elsewhere. See parts II.D.3.c (regarding ‘‘customer’’ language) and II.D.3.e (regarding rejection of riskbased and proportionality tests), infra. In addition, the letter expressed the view that a percentage-based formula would be difficult to implement, by requiring market participants to repeatedly calculate the ratio of their activity to total market activity. We concur. The $3 billion threshold we are adopting reflects a fixed dollar amount, and does not share the complications that would arise from an approach based on a particular percentage of the market. 507 See Exchange Act section 3(a)(71)(D). 508 The commenter correctly pointed out that the regulatory requirements applicable to registered dealers encompass counterparty protection requirements, and that the de minimis exception should not defeat those requirements. We recognize that the implementation of the exception should take those counterparty protections into account, and we have sought to do so. We do not believe, however, that those important counterparty protection goals require a de minimis approach that focuses on the number of entities that would be excluded, in lieu of the statutory focus on whether a particular entity engages in a de minimis quantity of dealing activity. E:\FR\FM\23MYR2.SGM 23MYR2 30640 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations Analysis. As discussed above, we believe that criteria based on the number of an entity’s counterparties that are not recognized as dealers deserve special weight due to the potential consistency of those criteria with the dealer-trader distinction.509 Identifying dealer activity using those criteria does not support the view that a $3 billion threshold would lead to the exclusion of a large number of entities engaged in dealing activity.510 Finally, we also are not persuaded by the commenter’s suggestion that a number of entities engaged in dealing activity would reduce those activities to take advantage of a $3 billion de minimis threshold, and hence reduce liquidity in the market by five percent. To reach that figure, the commenter needed to exclude the vast majority of dealing activity in the market.511 While we recognize that it is possible that current market participants may adjust their dealing activity in light of the de minimis threshold, and that this potentially could reduce the liquidity provided by certain entities, we also recognize that the de minimis exception has the potential to promote liquidity by 509 See notes 478, 482, and 483, supra. example, the CDS Data Analysis identifies: • Three possible dealers with notional transactions below $3 billion in 2011—out of a total of 28 possible dealers—when possible dealing activity is based on having three or more counterparties that themselves are not identified as dealers; • One possible dealer with notional transactions below $3 billion in 2011– out of a total of 20 possible dealers—when possible dealing activity is based on having five or more counterparties that themselves are not identified as dealers; and • Zero possible dealers with notional transactions below $3 billion in 2011—out of a total of 16 possible dealers—when possible dealing activity is based on having seven or more counterparties that themselves are not identified as dealers. See CDS Data analysis at tables 3c, 3b and 3a. In addition, as described above, an approach focused on the quantity of activity is supported by relatively consistent results depending on which criterion from the CDS Data Analysis is applied— i.e., each criterion shows a high amount of concentration and a commensurately low quantity of activity below the $3 billion threshold. By contrast, applying different criteria results in very different numbers of entities excluded under any specified threshold, suggesting that an approach focused on the number of entities may be highly dependent on how the possible dealing activity of those entities is defined. 511 In particular, in arguing that this incentive would reduce liquidity by five percent, the commenter excluded all business done by entities within the top two brackets (i.e., above $100 billion notional), on the grounds that those entities ‘‘are assumed to transact mostly with larger entities.’’ Based on the criteria on which the commenter relied, those 15 entities are responsible for over 96 percent of the activity of all possible dealers. See CDS Data Analysis at tables 7 and 8. Absent that exclusion, the estimated reduction of liquidity would amount to a small fraction of a percent. mstockstill on DSK4VPTVN1PROD with RULES2 510 For VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 facilitating new entrants into the market. ii. Phase-in Period in Connection With Dealing Activity Involving Credit Default Swaps That Constitute SecurityBased Swaps The final rules further provide that persons with notional dealing activity of $8 billion or less over the prior 12 months involving credit default swaps that constitute security-based swaps would be able to avail themselves of a phase-in period.512 Those persons would not be subject to the generally applicable compliance date that occurs no later than 60 days following publication of these final rules in the Federal Register.513 The use of a phase-in period—in connection with a person’s status as a security-based swap dealer and in connection with the other regulatory requirements that are appurtenant to dealer status—is intended to facilitate the orderly implementation of Title VII. In addition, the phase-in period will afford the SEC additional time to study the security-based swap market as it evolves in the new regulatory framework and will allow potential dealers that engage in smaller amounts of activity (relative to the current size of the market) additional time to adjust their business practices, while at the same time preserving the focus of the regulation on the largest and most significant dealers. The SEC also recognizes that the data informing its current view of the de minimis threshold is based on the market as it exists today, and that the market will evolve over the coming years in light of the new regulatory framework and other developments. Accordingly, while the SEC believes that a $3 billion notional threshold reflects an appropriate long-term standard based on the currently available data,514 it also is appropriate to provide for a phase-in period for those entities with $8 billion or less in dealing activity, because subsequent developments in the market or the evaluation of new data from the 512 Exchange Act rule 3a71–2(a)(2). with the general 60 day compliance period, however, market participants will not necessarily be security-based swap dealers at the end of 60 days. In particular, for the first year following the effective date of the final rules implementing the definition of ‘‘security-based swap’’ pursuant to the Exchange Act section 3(a)(68), the de minimis analysis would only address security-based swap dealing activity following that effective date. See Exchange Act rule 3a71–2(a)(1). Among other things, this means that until the rules defining ‘‘security-based swap’’ are effective, no market participants would be deemed to be security-based swap dealers. 514 See note 502, supra. 513 Even PO 00000 Frm 00046 Fmt 4701 Sfmt 4700 security-based swap reporting facilities contemplated by the Dodd-Frank Act may suggest that the threshold should be increased or decreased. In particular, the implementation of security-based swap data reporting under the DoddFrank Act will result in significant new data and afford an opportunity to review the Commission’s determination to establish a $3 billion threshold. For these reasons, an important part of the report that the SEC is directing its staff conduct with regard to the definitions of ‘‘security-based swap dealer’’ and ‘‘major security-based swap participant’’ (described in detail below) will be a consideration of the operation of the de minimis exception following the full implementation of Section 15F under Title VII.515 The SEC will take into account this report, along with public comment on the report, in determining whether to propose any changes to the rule implementing the de minimis exception, including any increases or decreases to the $3 billion threshold. The report will be linked to the availability of data regarding the activity of regulated security-based swap market participants in that it must be completed no later than three years 516 following a ‘‘data collection initiation date’’ that is the later of: the last compliance date for the registration and regulatory requirements for security-based swap dealers and major security-based swap participants under Section 15F of the Exchange Act; or the first date on which compliance with the trade-by-trade reporting rules for creditrelated and equity-related securitybased swaps to a registered securitybased swap data repository is required.517 In light of the available data—and the limitations of that data in predicting how the full implementation of Title VII will affect dealing activity in the security-based swap market—the SEC believes that $8 billion constitutes an appropriate level for the availability of the phase-in period. The available data indicate that such a level generally comports with the balance of interests that informed the determination of the appropriate long-term threshold of $3 billion described above. In particular, the $8 billion level should still lead to the regulation of persons responsible for the vast majority of dealing activity 515 See Exchange Act rule 3a71–2A(a)(1); see also part V, infra. 516 See Exchange Act rule 3a71–2A(b). 517 The SEC will announce the data collection initiation date on its Web site and publish it in the Federal Register. See Exchange Act rule 3a71– 1(a)(2)(iii). E:\FR\FM\23MYR2.SGM 23MYR2 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES2 within the market.518 In addition, we do not believe that providing a phase-in period for persons with notional dealing activity over the prior 12 months of less than $8 billion would lead to a risk of an undue portion of the market falling outside of the ambit of dealer regulation, even after considering the potential entry of unregulated new dealers into the market.519 The final rule provides that the phasein period will continue until the ‘‘phase-in termination date’’ that the SEC will publish on its Web site and in the Federal Register.520 In particular, the rule provides that nine months following publication of that report, and after giving due consideration of the report and associated public comment, the SEC may either: (1) Terminate the phase-in period and by order establish and publish the phase-in termination date; or (2) determine that it is necessary or appropriate in the public interest to propose an alternative de minimis threshold, in which case the SEC, by order published in the Federal Register, will provide notice of that determination and establish the phasein termination date.521 If the SEC does not establish the phase-in termination date in either of those ways, the phasein termination date shall automatically occur in any event on what would be a 518 Of the 28 market participants that have three or more security-based swap counterparties that themselves are not recognized by dealers by ISDA, 23 had notional single-name credit default swap transactions in excess of $8 billion in 2011. The remaining five entities in total accounted for only $12.3 billion in notional transactions in 2011, reflecting roughly 0.1 percent of the $11.18 total for the 28 market participants. See CDS Data Analysis at table 3c. Only two of the 28 entities identified as possible dealers by that criterion had annual notional transactions between $3 billion and $8 billion in 2011. Most of the other criteria set forth in the analysis for identifying possible dealing activity in general similarly indicate that entities with notional transactions in excess of $8 billion in 2011 account for more than 99 percent of the total notional transactions of all identified entities that year. See id. at tables 2a–b, 3a–b, 4 and 5. While the criterion based on an entity having 10 or more counterparties only indicates 98 percent coverage for all of the 154 identified entities at an $8 billion transaction level, see id. at table 2c, as noted above this criterion may identify persons who in reality are not engaged in dealing activity. See note 482, supra. Also, while the criterion based on the posting of initial margin only indicates 97 percent coverage for all of the 473 identified entities at an $8 billion transaction level, see id. at table 6, as discussed above that criterion is based on voluntary reporting. 519 For example, 15 new dealer entrants up to $8 billion in annual notional dealing activity would account for $120 billion in dealing activity. This would amount to roughly 1.2 percent of the total notional single-name security-based swap activity over 12 months of entities identified as possible dealers by virtue of having three or more counterparties that are not recognized by dealers by ISDA. See CDS Data Analysis at table 2c. 520 Exchange Act rule 3a71–2(a)(2)(i). 521 Exchange Act rule 3a71–2(a)(2)(iii)(A). VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 date certain, which will be five years following the data collection initiation date.522 These provisions should allow sufficient time for the staff to complete its report, for the SEC to receive and review public comment on the report, and for the SEC to draw conclusions regarding establishing the phase-in termination date or proposing potential changes to the rule implementing the de minimis exception, in a way that also promotes the orderly and predictable termination of the phase-in period.523 This phase-in period will not be available in connection with the $25 million threshold for dealing activity involving special entities, discussed below. In addition, the final rule provides that this phase-in period will not be available in connection with security-based swap dealing activities involving natural persons, other than natural persons who qualify as ECPs by virtue of CEA section 1a(18)(A)(xi)(II), which addresses natural persons who have $5 million or more invested on a discretionary basis and who enter into a security-based swap to manage the risk associated with their assets and liabilities.524 These limitations to the availability of the phase-in period are consistent with the Dodd-Frank Act’s goal of helping special entities be in a position to benefit from the counterparty protections associated with the regulation of registered security-based swap dealers under Title VII, as well as the SEC’s mandate to protect participants in the securities markets. 522 Exchange Act rule 3a71–2(a)(2)(iii)(B). approach balances the fact that the SEC believes that its $3 billion and $150 million de minimis thresholds are appropriate in light of the currently available data and the market’s need for a degree of certainty as to the length of this phasein period, on the one hand, against the possibility that the staff report and the accompanying public comment may demonstrate that revision to these thresholds is necessary, on the other hand. 524 See Exchange Act rule 3a71–2(a)(2)(i). In other words, the phase-in period will still be available in connection with dealing activities with natural persons who are ECPs because they have entered into a security-based swap for hedging purposes. While we recognize the importance of Title VII protections to natural persons who engage in security-based swap activity, we also recognize the benefit of facilitating such persons’ use of securitybased swaps as hedges. Accordingly, persons who engage in dealing activity with natural persons who are ECPs under other provisions of the ECP definition will be subject to the applicable de minimis threshold for all of their dealing activity, without the availability of the phase-in period. Persons who engage in dealing activity with natural persons who are not ECPs will fall within the Exchange Act definition of ‘‘dealer,’’ which has no de minimis exception. See Exchange Act section 3(a)(5)(A) (generally excluding dealers in securitybased swaps from the Exchange Act definition of ‘‘dealer,’’ unless the counterparty is not an ECP). 523 This PO 00000 Frm 00047 Fmt 4701 Sfmt 4700 30641 Persons who are able to avail themselves of the phase-in period, of course, will not be required to do so. Any person that chooses to register with the SEC as a security-based swap dealer shall be deemed to be a security-based swap dealer subject to all applicable regulatory requirements for such registrants, regardless of whether the person engages in security-based swap dealing activity in an amount that is below the applicable de minimis threshold or phase-in level.525 d. Balancing Reflected in the Final Rules—Other Types of Security-Based Swaps The final rule provides that the de minimis exception for dealing activity involving security-based swaps other than credit default swaps will be based on a threshold of $150 million notional over the prior 12 months.526 In addition, a phase-in period will be available in connection with persons whose dealing activity involving those instruments is $400 million or less in notional amount over the prior 12 months. These amounts reflect roughly onetwentieth of the corresponding amounts associated with the exception for credit default swaps that constitute securitybased swaps. As discussed above, while less data is available regarding other types of security-based swaps than is available regarding single-name credit default swaps, the available data is consistent in indicating that those other types of security-based swaps on a notional basis currently comprise roughly one-twentieth of the total amount of instruments that will be expected to constitute security-based swaps.527 In light of this significantly smaller market, we believe that a $3 billion notional threshold would threaten to cause an overly large portion of dealing activity within the market to fall outside the ambit of dealer regulation. In this regard, we note that it is likely that there are fewer barriers to entry in connection with acting as a dealer in security-based swaps such as equity swaps and total return swaps on debt than there are in connection with acting as a dealer in single-name credit default 525 See Exchange Act rule 3a71–2(e). Act rule 3a71–2(a)(1)(ii). The proposal requested comment on whether different segments of the security-based swap market should be treated differently. See Proposing Release at 80101 (‘‘Commenters further are requested to address * * * whether the [de minimis] exemption’s factors should vary depending on the type of swap or security-based swap at issue.’’). 527 See note 476, supra. 526 Exchange E:\FR\FM\23MYR2.SGM 23MYR2 30642 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES2 swaps.528 We also note that because equity swaps and total return swaps on debt can serve as close economic proxies for equity and debt securities, an overly broad de minimis threshold in connection with such instruments could threaten to undermine the Exchange Act framework for regulating persons who act as dealers in equity and debt. At the same time—notwithstanding the smaller scope of this market and the lesser availability of data regarding dealing activity within the market—we do not believe that it is necessary to make the de minimis exception unavailable in connection with dealing activity involving security-based swaps that are not credit default swaps. In this regard we particularly note that the limited available data regarding equity swaps suggests a high degree of concentration in dealing activity involving those instruments,529 which indicates that an appropriately sized de minimis threshold can be expected to promote regulatory efficiency. Balancing those factors, we conclude that a $150 million annual notional threshold is appropriate to implement the de minimis exception in connection with security-based swaps that are not credit default swaps, consistent with our understanding of the comparative size of that market as applied to the threshold applicable to credit default swap dealing activity. For reasons similar to those described above, we conclude that there should be a phasein period available to persons whose annual notional dealing activity in connection with security-based swaps that are not credit default swaps is no more than $400 million in annual 12month notional amount. This phase-in period is subject to the same limitations regarding transactions involving special entities and natural persons as apply to the phase-in period for credit default swaps. It also will be subject to the same provisions regarding the termination of the phase-in period as apply in connection with credit default swaps.530 The comparative lack of data involving these markets—in contrast to the market 528 For example, persons registered with the SEC as broker-dealers in connection with other types of securities would appear to be well positioned to act as dealers in connection with equity swaps, as such broker-dealers already would be expected to have systems in place to enter into equity positions to hedge their equity swap dealing positions. 529 As noted above, four commercial banks and trust companies accounted for 93 percent of all equity positions held by such companies as of June 30, 2011, and nine bank holding companies accounted for over 99 percent of all equity positions held by the fifty largest such companies as of December 2011. See note 485, supra. 530 See Exchange Act rule 3a71–2(a)(2); see also notes 520 through 522, supra, and accompanying text. VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 for single-name credit default swaps— particularly highlights how the use of a phase-in period that is linked to the availability of post-implementation data is appropriate.531 As above, a person who is eligible to take advantage of the phase-in period in connection with these types of securitybased swaps may nonetheless register as a security-based swap dealer. e. Dealing Activity Involving Special Entities Consistent with the proposal, the final rules in general will cap an entity’s dealing activity involving security-based swaps at no more than $25 million notional amount over the prior 12 months when the counterparty to the security-based swap is a special entity.532 There will be no phase-in period in connection with transactions involving special entities. In adopting this threshold, we recognize the serious concerns raised by commenters that stated that the de minimis exception should not permit any dealing activities involving special entities in light of losses that special entities have incurred in the financial markets,533 as well as the special protection that Title VII affords special entities.534 At this time, the final rule does not fully exclude such dealing activity from the exception, in light of the potential benefits that may arise from a de minimis exception. In this way, the threshold would not completely foreclose the availability of securitybased swaps to special entities from unregistered dealers—as $25 million would annually accommodate up to five single-name credit default swaps of a $5 531 The SEC expects that the staff report should be especially helpful for providing data regarding dealing activity in connection with those other types of security-based swaps to consider the impact of the termination of the phase-in period, as well as potential changes to the de minimis exception in connection with these instruments. 532 Exchange Act rule 3a71–2(a)(1)(iii). 533 See letters from AFR and Better Markets I. 534 In this regard we note that Title VII authorizes the SEC to impose special business conduct requirements when a security-based swap dealer is counterparty to a special entity. See Exchange Act section 15F(h)(5). In proposing rules to implement these requirements, the SEC requested comment regarding the scope of the ‘‘special entity’’ definition, including, for example, regarding whether the SEC should interpret ‘‘special entity’’ to exclude a collective investment vehicle in which one or more special entities have invested. See Exchange Act Release No. 64766 (June 29, 2011), 76 FR 42396, 42422 (July 18, 2011). For purposes of interpreting this special entity threshold to the de minimis exception—particularly with regard to when a special entity would be a counterparty to a person that is engaged in dealing activity—the SEC believes that it will be appropriate to be guided by final interpretations regarding when a dealer will be a counterparty to a special entity for purposes of those business conduct requirements. PO 00000 Frm 00048 Fmt 4701 Sfmt 4700 million notional size—but the threshold would limit the financial and other risks associated with those positions for a special entity, which would in turn limit the possibility of inappropriately undermining the special protections that Title VII provides to special entities. In reaching this conclusion we recognize that special entities do participate in the single-name credit default swap market, given that an analysis of market data indicates that in 2011 special entities were parties to over $40 billion in single-name credit default swap transactions.535 At the same time, the impact of this $25 million threshold—particularly concerns that the threshold may foreclose the ability of special entities to access dealers in the market—appears to be mitigated by the fact that the counterparties to those special entities tend to engage in notional transactions in single-name credit default swap well in excess of the general de minimis standards.536 In light of the underlying counterparty protection issues, we see no basis to distinguish between types of security-based swaps in setting this special entity threshold. For similar reasons, in the future as we consider whether to amend the de minimis exception we expect to pay particular attention to whether the threshold for transactions involving special entities should further be lowered. f. Future Revisions to the Rule As noted above and described in detail below in part V, the SEC is directing its staff to report on whether changes are warranted to the rules and interpretations implementing the security-based swap dealer definition, including the rule implementing the de minimis exception.537 The SEC will take the report and associated public comment into account in determining whether to propose any changes to the rule implementing the exception.538 Consistent with that possibility, the final rule provides that the SEC may change the requirements of the de minimis exception by rule or regulation.539 Through this mechanism, 535 See CDS Data Analysis at table 9. id. at n.8 (noting that the average notional activity of those 16 counterparties was $680 billion, with the lowest being approximately $9 billion). 537 See Exchange Act rule 3a71–2A(a)(1). 538 See notes 520 through 522, supra, and accompanying text. 539 Exchange Act rule 3a71–2(d). Exchange Act section 3(a)(71)(D) particularly states that the ‘‘Commission’’—meaning the SEC—may exempt de minimis dealers and promulgate related regulations. We do not interpret the joint rulemaking provisions of section 712(d) of the Dodd-Frank Act to require 536 See E:\FR\FM\23MYR2.SGM 23MYR2 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations the SEC may revisit the rule implementing the exception and potentially change that rule, for example, if data regarding the securitybased swap market following the implementation of Section 15F under Title VII suggests that different de minimis thresholds would be appropriate.540 In determining whether to revisit the thresholds, the SEC intends to pay particular attention to whether the de minimis exception results in a dealer definition that encompasses too many entities whose activities are not significant enough to warrant full regulation under Title VII, or, alternatively, whether the de minimis exception leads an undue amount of dealing activity to fall outside of the ambit of the Title VII regulatory framework, or leads to inappropriate reductions in counterparty protections (including protections for special entities). The SEC also intends to pay particular attention to whether alternative approaches would more effectively promote the regulatory goals that may be associated with a de minimis exception. 6. Registration Period for Entities That Exceed the De Minimis Factors mstockstill on DSK4VPTVN1PROD with RULES2 The de minimis exception raises implementation issues akin to those associated with the major participant definition, in that both provisions use tests that have retrospective elements to determine whether an entity must register and be subject to future regulation. As a result, some commenters have suggested that entities that surpass the de minimis thresholds should be able to take advantage of a grace period to undertake the process of registering as swap dealers or securitybased swap dealers.541 Otherwise, absent such a ‘‘roll-in’’ period, entities whose dealing activities surpass the relevant de minimis factors would immediately be in violation of dealer registration requirements. In light of these concerns, and the interest of avoiding undue market disruptions, the Commissions believe that it is appropriate to provide entities that exceed applicable the de minimis factors a period of time to register as dealers. joint rulemaking here, because such an interpretation would read the term ‘‘Commission’’ out of Exchange Act section 3(a)(71)(D), which itself was added by the Dodd-Frank Act. 540 See letter from Greenberger (stating that the dynamic nature of the derivatives sector of the financial markets should counsel caution, and that the de minimis threshold should be reevaluated on an ongoing basis). 541 See letters from Northland Energy and WGCEF I. VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 Accordingly, the final rules have been revised from the proposal to provide for a timing standard that is similar to what we are using in connection with the major participant definition.542 That is, if an entity that has relied on the de minimis exception no longer is able to rely on the exception because its dealing activity exceeds a relevant threshold, the entity would have two months, following the end of the month in which it no longer is able to take advantage of the exception, to submit a completed application to register as a swap dealer or security-based swap dealer.543 Also, akin to the major participant definitions,544 a person registered as a swap dealer or security-based swap dealer may apply to withdraw that registration, while continuing to engage in a limited amount of dealing activity in reliance on the de minimis exception, if that person has been registered as a dealer for at least 12 months.545 This should help ensure that persons do not rapidly move in and out of dealer status based on short-term fluctuations in their swap or security-based swap activities. The final rules implementing the de minimis exception do not provide any reevaluation period for entities that engage in a level of dealing activity above the de minimis thresholds, in contrast to the major participant definitions.546 We do not believe that there is an appropriate basis for such a provision, particularly given that dealer regulation addresses customer protection and market operation and 542 Compare CFTC Regulation § 1.3(hhh)(3); Exchange Act rule 3a67–8(a) (providing that persons who meet the criteria to be major participants will have two months to submit a completed registration application). 543 See CFTC Regulation § 1.3(ggg)(4)(ii); Exchange Act rule 3a71–2(b). As discussed below with regard to the implementation period for the major participant definitions, persons will have additional time to comply with the applicable requirements following the submission of a completed application. See part IV.L.3, infra. 544 Compare CFTC Regulation § 1.3(hhh)(5); Exchange Act rule 3a67–8(c) (providing that a major participant may be deemed to no longer be a major participant if its swap or security-based swap positions are below the relevant thresholds for four quarters). 545 See CFTC Regulation § 1.3(ggg)(4)(ii); Exchange Act rule 3a71–2(c). Consistent with this approach, moreover, the final rule has been revised from the proposal to clarify that the de minimis exception in general is not available to a registered swap dealer or security-based swap dealer. See CFTC Regulation § 1.3(hhh)(1)(i); Exchange Act rule 3a71–2(a)(1) (revised language clarifying availability of exception to a person that is not a swap dealer or security-based swap dealer). 546 Compare CFTC Regulation § 1.3(hhh)(4); Exchange Act rule 3a67–8(b) (providing for a reevaluation period in connection with the major participant definitions when a person does not exceed any applicable threshold by more than 20 percent in a calendar quarter). PO 00000 Frm 00049 Fmt 4701 Sfmt 4700 30643 transparency concerns apart from risk concerns. E. Limited Purpose Designation as a Dealer 1. Proposed Approach The definitions of the terms ‘‘swap dealer’’ and ‘‘security-based swap dealer’’ provide that the Commissions may designate a person as a dealer for one type, class or category of swap or security-based swap, or specified swap or security-based swap activities, without the person being considered a dealer for other types, classes, categories or activities.547 In the Proposing Release, we noted that these provisions represent permissive grants of authority that do not require the Commissions to provide limited designations.548 We further stated that a person that is covered by the definitions of the terms ‘‘swap dealer’’ or ‘‘security-based swap dealer’’ would be considered a dealer for all types, classes or categories of the person’s swaps or security-based swaps, or activities involving swaps or securitybased swaps, in light of the difficulty of seeking to separate a person’s dealing activities from their non-dealing activities involving swaps or securitybased swaps, unless such person sought and received designation as a dealer for only specified categories of swaps or security-based swaps, or specified activities.549 We explained that this would provide persons the opportunity to seek a limited designation based on applicable facts and circumstances, and that we anticipated that a dealer could seek a limited designation at the time of its initial registration or later.550 In the Proposing Release, the CFTC further noted that non-financial entities such as physical commodity firms potentially may conduct dealing activity through a division rather than through a separately incorporated subsidiary, and that such an entity’s swap dealing activity would not be a core component of its overall business. The CFTC added that if this type of entity registered as a dealer, certain swap dealer requirements would apply to the dealing activities of the division, but not necessarily to the swap activities of other parts of the entity.551 547 CEA section 1a(49)(B); Exchange Act section 3(a)(71)(B). 548 See Proposing Release, 75 FR at 80182. 549 See id.; see also proposed CFTC Regulation § 1.3(ggg)(3); proposed Exchange Act rule 3a71–1(c). 550 See Proposing Release, 75 FR at 80182. 551 See id. E:\FR\FM\23MYR2.SGM 23MYR2 30644 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations 2. Commenters’ Views A number of commenters addressed the limited designation of dealers in conjunction with the limited designation of major participants. Many of the issues those commenters raised thus are relevant to both sets of definitions. a. Presumption of Full Designation A number of commenters objected to the proposed presumption that an entity would be designated as a dealer (or major participant) for all categories of swaps or security-based swaps and all of the person’s activities connected to swaps or security-based swaps. Several commenters argued that this approach would be contrary to Congressional intent,552 conflict with the statutory language,553 or conflict with underlying policy concerns.554 One commenter suggested that the Commissions lack the statutory authority to apply swap dealer requirements to an entity’s non-swap dealing activities.555 b. Potential Types of Limited Designations A number of commenters addressed potential types of limited designations. One expressed support for limited swap dealer designations for particularized business units and for particular swap categories,556 while another requested that limited swap dealer designations be available based on any reasonable commercial groupings.557 Some commenters urged that limited dealer designations should be available for the branches or business units of foreign swap dealers and security-based swap dealers with U.S.-based customers or U.S. business lines.558 c. Applications for Limited Designations mstockstill on DSK4VPTVN1PROD with RULES2 A number of commenters addressed issues relating to the application process 552 See letters from Cargill Incorporated (‘‘Cargill’’), CDEU and Investment Company Institute (‘‘ICI’’) dated February 22, 2011 (‘‘ICI I’’). 553 See letters from MetLife and WGCEF I. 554 See letter from Cargill (stating that limited designation promotes the policy of encouraging non-financial firms that primarily are engaged in non-dealing businesses to continue to conduct limited dealing activities, adding that such firms ‘‘do not present the potential systemic risks of financial firms,’’ and that their full designation as dealers would discourage them from providing risk management products). 555 See letter from EDF Trading. 556 See letter from Capital One. 557 See letters from NCGA/NGSA II (particularly referring to groupings based on individual physical commodities) and WGCEF dated June 9, 2011 (‘‘WGCEF VII’’) (limited designation should permit firms to structure organization of limited purpose registrans as appropriate in particular circumstances). 558 See letters cited in note 148, supra. VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 for limited designations. Some commenters supported the ability of a person to apply for limited designations at the time of initial registration,559 while one commenter sought clarification on how and when a person could apply for limited swap dealer status.560 Some commenters suggested that entities should be considered to have a provisional limited designation upon the filing of a completed application for limited dealer designation.561 Some commenters requested further clarification as to what factors or criteria would be considered relevant to limited designation determinations.562 One commenter stated that non-financial companies should have a presumption of limited swap dealer designation under certain circumstances.563 Another commenter took the view that commercial firms should be able to determine whether to register a legal entity or a division as a dealer.564 One commenter suggested the analysis consider the complexity of an entity’s dealing and non-dealing activities, and further suggested that limited designations should automatically be available if an entity’s dealing activities do not exceed 50 percent of its total swap activities.565 Commenters also raised issues related to how a person’s status as a financial or a non-financial entity affects a person’s eligibility for limited designations.566 559 See letters from MFA I (specifically requesting that the rules provide that an entity can receive a limited purpose designation at the time of their initial registration) and FSR I. 560 See letter from National Futures Association (‘‘NFA’’). 561 See letters from Capital One, Farm Credit Council I and FHLB I. 562 See letters from BG LNG I and ISDA I. 563 See letter from Cargill (arguing that a firm should be presumptively entitled to limited swap dealer status if: it is a non-financial company; its non-dealing activities include (but need not be limited to) production, merchandising or processing of physical commodities; the firm’s dealing activities take place in a separately identifiable division or business unit with separate management; and dealing revenues are less than 30 percent of the firm’s total revenues in the firm’s most recent fiscal year). 564 See letter from WGCEF VII (stating that so long as a registered swap dealer bears the onus of demonstrating compliance with regulatory requirements, regulators ‘‘should not dictate’’ whether the firm registers a legal entity or a division as a dealer; also requesting guidance as to how applicable regulatory requirements may apply to a subdivision of a legal entity that registers as a dealer, and requesting a safe harbor from enforcement action when a decision to register only a particular desk or division as a dealer is made in good faith). 565 See letter from Capital One. 566 Compare letter from Capital One (stating that all market participants, including financial institutions, should be allowed to apply for limited swap dealer designations) with letter from Cargill PO 00000 Frm 00050 Fmt 4701 Sfmt 4700 d. Application of Regulatory Requirements to Limited Dealers Commenters also addressed issues related to the application of regulatory requirements to limited dealers. One commenter recommended that dealer regulatory requirements generally should apply only to a division undertaking limited dealing activities; that commenter further stated that capital requirements should be calculated based only on the activities of that division, while recognizing that capital must be held by the entity as a whole.567 Other commenters argued that capital and margin requirements should only be applied to an entity on a limited basis.568 e. Miscellaneous Issues One commenter recommended that non-financial entities that are deemed to be limited dealers (or major participants) be permitted to be treated as end-users for the aspects of their businesses that are not subject to the limited designation.569 The commenter further suggested that the swaps ‘‘pushout’’ rule requirements of section 716 of the Dodd-Frank Act be interpreted so that an insured depository institution that is a limited purpose dealer would only have to push out the dealing portion of its swap business, and be allowed to retain the other aspects of its swaps business.570 One commenter requested clarification as to whether a person that is a limited purpose dealer in connection with one category of swap could be a major participant in connection with another category (in light of the statutory language excluding dealers from the major participant definitions).571 3. Final Rules and General Principles Consistent with the proposal, the final rules retain the presumption that a (suggesting that an entity’s status as a financial company should be relevant to limited dealer determinations). 567 See letter from Cargill. 568 See letter from FSR I (recommending that to the extent that capital requirements are tied to swap activity or exposures, that only activities or exposures in the designated category be reflected in the calculation). 569 See id. (recommending that the corporate treasurer of an entity with a limited designation as a swap dealer for ‘‘other commodity swaps’’ as a result of its energy derivatives activity be able to hedge the entity’s interest rate and currency risk without being subject to the business conduct, reporting, recordkeeping or other rules applicable to dealers and major participants). 570 See id. 571 See letter from NFA. As discussed below, see 752, infra, a person who is designated as a dealer in connection with particular types of swaps or security-based swaps may be major participants with regard to other types. E:\FR\FM\23MYR2.SGM 23MYR2 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations person who meets one of the dealer definitions will be deemed to be a dealer with regard to all of its swaps or security-based swaps activities, unless the CFTC or SEC exercises its authority to limit the person’s designation as a dealer to specified categories of swaps or security-based swaps, or specified activities.572 As discussed in the Proposing Release, moreover, a person may apply for a limited designation when it submits a registration application, or at a later time.573 The final rules also contain a technical change from the proposed rules to clarify that limited designations may be based on a particular type, class or category of swap or security-basedswap.574 a. Default Presumption of Full Designation mstockstill on DSK4VPTVN1PROD with RULES2 Consistent with the proposal, the final rules retain the standard that a person that satisfies the ‘‘swap dealer’’ or ‘‘security-based swap dealer’’ definition in general would be considered a dealer for all types, classes or categories of the person’s swaps or security-based swaps, or all activities involving swaps or security-based swaps. The Commissions are not persuaded by the suggestion that this presumption is inconsistent with the statute, legislative intent or underlying policy. Not only is the relevant statutory language written as a grant of authority rather than a specific mandate to designate certain entities as limited purpose dealers, but the presumption also reasonably reflects the difficulty of separating a dealer’s dealing activities from its non-dealing activities, and the challenges of applying dealer regulatory requirements to only a portion of a dealer’s swap or security-based swap activities.575 572 CFTC Regulation§ 1.3(ggg)(3); Exchange Act rule 3a71–1(c). 573 The SEC expects to address the process for submitting an application for limited designation as a security-based swap dealer, along with principles to be used by the SEC in analyzing such applications, as part of separate rulemakings. 574 The rules particularly have been revised from the proposal to add ‘‘type’’ and ‘‘class’’ language to supplement the use of the term ‘‘category.’’ This change is consistent with the statutory language. In addition, the final rules related to limited designations for ‘‘security-based swap dealers’’ corrects an erroneous reference to major participant designation. 575 This approach also is consistent with the treatment of dealers of other types of securities under the Exchange Act. When a person’s securities activities cause them to be a ‘‘dealer’’ for purposes of the Exchange Act, the statutory requirements and regulations applicable to dealers will apply to all of that person’s securities activities, regardless of whether particular activities would not have caused the entity to fall within the ‘‘dealer’’ definition. For example, Exchange Act section 15(c)(3)(A) prohibits VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 We similarly are not persuaded by the view that the Commissions lack the authority to apply dealer regulation to non-dealing activities of a registered swap dealer or security-based swap dealer.576 Certain of the statutory requirements applicable to swap dealers and security-based swap dealers—such as capital requirements—simply do not distinguish between a person’s dealing activities and their non-dealing activities.577 In other words, absent a limited designation, the statutory requirements applicable to dealers address the regulation of all of a dealer’s swap or security-based swap activities.578 b. Demonstration of Compliance With Dealer Requirements The Commissions will consider limited purpose applications on an individual basis through analysis of the unique circumstances of each applicant, given that the types of entities that engage in swap or security-based swap dealing are diverse and their organization and activities are varied.579 Regardless of the type of limited designation being requested, the Commissions will not designate a person as a limited purpose dealer unless it can demonstrate that it can fully comply with the requirements applicable to dealers. Certain of the statutory requirements applicable to dealers particularly focus on the entity’s swap or security-based swap activities and positions. These include, among other aspects, requirements related to trading records, brokers and dealers from engaging in certain securities-related activity in contravention of SECprescribed rules with respect to financial responsibility or related practices. This provision does not distinguish between those activities that cause a person to fall within the ‘‘broker’’ or ‘‘dealer’’ definitions, and other activities that themselves do not cause that person to be a broker or dealer. The SEC’s authority extends to all securities activities by those brokers or dealers. 576 See letter from EDF Trading. 577 See, e.g., CEA section 4s(e); Exchange Act section 15F(e). 578 The substantive regulations applicable to dealers, of course, can account for the nature of a dealer’s particular swap or security-based swap activities. The SEC also intends to address limited designation issues in the context of a separate release addressing the application of Title VII to non-U.S. entities. 579 Consistent with this approach, applications to limit a person’s dealer designation to ‘‘specified categories’’ of swaps or security-based swaps (see CFTC Regulation § 1.3(ggg)(3); Exchange Act rule 3a71–1(c)), would not be required to interpret the term ‘‘category’’ consistently with the use of that term in connection with the major participant definitions. CFTC Regulation § 1.3(iii) and Exchange Act rule 3a67–2, defining the terms ‘‘major swap category’’ and ‘‘major security-based swap category,’’ respectively, do not apply for this purpose. PO 00000 Frm 00051 Fmt 4701 Sfmt 4700 30645 documentation and confirmations.580 An applicant for a limited purpose designation would have to demonstrate how it would satisfy those transactionspecific requirements in the context of a limited designation. Other statutory requirements applicable to dealers particularly focus on the entity itself. These include requirements related to registration, capital, risk management, supervision, and chief compliance officers.581 Here too, an applicant for a limited purpose designation would have to demonstrate how it would satisfy those requirements in the context of limited designations. A limited purpose designation might be appropriate, for example, where a commercial agricultural company is a dealer in swaps related to a thinlytraded commodity, such as a particular fertilizer, but is not a dealer in, and does not wish to be subject to the swap dealer requirements with respect to its swaps that relate to broadly-traded commodities like corn or wheat (or where, say, a commercial energy company is a dealer in swaps involving a commodity to be delivered at a particular location and does not wish to be subject to the swap dealer requirements for its swaps involving that commodity to be delivered at other locations, for which it is not a swap dealer). A limited designation might also be appropriate so that the swap dealer requirements do not apply to interest rate or currency swaps that the agricultural or energy company enters into in managing its financial risk. 580 See, e.g., CEA section 4s(h)(3), Exchange Act section 15F(h)(3) (business conduct standards, including disclosure requirements, for dealers); CEA section 4s(g), Exchange Act section 15F(g) (daily trading record requirements for dealers); CEA section 4s(i); Exchange Act section 15F(i) (documentation requirements for dealers). 581 See, e.g., CEA section 4s(a)(1), Exchange Act section 15F(a)(1) (registration requirements for dealers); CEA section 4s(e), Exchange Act section 15F(e) (capital and margin requirements for dealers). The Dodd-Frank Act provides that in setting the capital requirements for swap dealers and security-based swap dealers (as well as major participants) that are subject to a limited designation, the Commissions and the prudential regulators must take into account the risks associated with other types, classes, or categories of swaps or security-based swaps engaged in, and the other swap or security-based swap activities conducted by, that person ‘‘that are not otherwise subject to regulation applicable to that person by virtue of the status of the person’’ as a dealer or major participant. See CEA section 4s(e)(2)(C); Exchange Act section 15F(e)(2)(C). In the case of a commercial agricultural or energy company that obtains a limited purpose designation for a particular business unit, the CFTC does not expect that this provision will generally require the limited purpose designee to calculate its required capital on the basis of swaps engaged in, or activities conducted by, other business units within the company, to the extent those swaps or activities do not generate risk beyond the agricultural or energy company’s ordinary commercial line of business. E:\FR\FM\23MYR2.SGM 23MYR2 30646 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations A limited purpose designee could be a particular business unit within a company. Additionally, a limited designation might be considered to ‘‘split the desk’’ by applying the swap dealer requirements solely to the designee’s limited activities involving swaps not entered into for the purpose of hedging a physical position as defined in CFTC Regulation § 1.3(ggg)(6)(iii). Any particular limited purpose application will be analyzed in light of the unique circumstances presented by the applicant. A key challenge that any applicant to a limited dealer designation will face is the need to demonstrate full compliance with the requirements that apply to the type, class or category of swap or security-based swap, or the activities involving swaps or security-based swaps, that fall within the swap dealer designation. III. Amendments to the Definition of Eligible Contract Participant A. Background mstockstill on DSK4VPTVN1PROD with RULES2 The Dodd-Frank Act makes it unlawful for a person that is not an eligible contract participant (‘‘ECP’’) to enter into a swap other than on, or subject to the rules of, a DCM.582 In addition, section 763(e) of the DoddFrank Act makes it unlawful for a person to effect a transaction in a security-based swap with or for a person that is not an ECP unless the transaction is effected on a national securities exchange registered with the SEC.583 Moreover, section 768(b) of the DoddFrank Act makes it unlawful for a person to offer to sell, offer to buy or purchase, or sell a security-based swap to a person that is not an ECP unless a registration statement under the Securities Act of 1933 (‘‘Securities Act’’) 584 is in effect with respect to that security-based swap.585 These 582 In particular, section 723(a)(2) of the DoddFrank Act adds new subsection (e) to CEA section 2 (7 U.S.C. 2(e)), providing that ‘‘[i]t shall be unlawful for any person, other than an eligible contract participant, to enter into a swap unless the swap is entered into on, or subject to the rules of, a board of trade designated as a contract market under section 5.’’ 583 In particular, section 763(e) of the Dodd-Frank Act adds paragraph (l) to Exchange Act section 6 (15 U.S.C. 78f(l)), providing that ‘‘[i]t shall be unlawful for any person to effect a transaction in a security-based swap with or for a person that is not an eligible contract participant, unless such transaction is effected on a national securities exchange registered pursuant to subsection (b).’’ 584 15 U.S.C. 77a et seq. 585 In particular, section 768(b) of the Dodd-Frank Act adds paragraph (d) to Securities Act section 5 (15 U.S.C. 77e(d)), providing that ‘‘[n]otwithstanding the provisions of section 3 or 4, unless a registration statement meeting the requirements of section 10(a) is in effect as to a VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 provisions mean that persons can engage in neither swaps nor securitybased swaps transactions with persons that are not ECPs on SEFs, on securitybased SEFs, or on a bilateral, offexchange basis. The Dodd-Frank Act also amended the ECP definition by: 586 (i) Providing that, for purposes of CEA sections 2(c)(2)(B)(vi) and 2(c)(2)(C)(vii), the term ECP does not include a commodity pool in which any participant is not itself an ECP; (ii) raising the monetary threshold that governmental entities may use to qualify as ECPs, in certain situations, from $25 million in investments owned and invested on a discretionary basis to $50 million in investments owned and invested on a discretionary basis; 587 and (iii) replacing the ‘‘total asset’’ standard for individuals to qualify as ECPs with an ‘‘amounts invested on a discretionary basis’’ standard.588 Commodity pools may, among other things, enter into transactions involving foreign currency. ECP status is important for commodity pools that enter into the following types of foreign currency transactions (such commodity pools, ‘‘Forex Pools’’): (i) Off-exchange foreign currency futures; (ii) offexchange options on foreign currency futures; (iii) off-exchange options on foreign currency; (iv) leveraged or margined foreign currency transactions; and (v) foreign currency transactions that are financed by the offeror, the counterparty or a person acting in concert with the offeror or counterparty security-based swap, it shall be unlawful for any person, directly or indirectly, to make use of any means or instruments of transportation or communication in interstate commerce or of the mails to offer to sell, offer to buy or purchase or sell a security-based swap to any person who is not an eligible contract participant as defined in section 1a(18) of the Commodity Exchange Act (7 U.S.C. 1a(18)).’’ The Commissions note that market participants must make the determination of ECP status with respect to the parties to transactions in security-based swaps and mixed swaps prior to the offer to sell or the offer to buy or purchase the security-based swap or mixed swap. 586 See Sections 741(b)(10) and 721(a)(9) of the Dodd-Frank Act; see also Financial Regulatory Reform, A New Foundation: Rebuilding Financial Supervision and Regulation, available at https:// www.treasury.gov/initiatives/Documents/ FinalReport_web.pdf, at 48–49 (June 17, 2009). 587 See CEA section 1a(18)(A)(vii), 7 U.S.C. 1a(18)(A)(vii). 588 See CEA section 1a(18)(A)(xi), 7 U.S.C. 1a(18)(A)(xi). The Dodd-Frank Act did not amend the monetary thresholds for individuals to qualify as ECPs. As such, an individual can qualify as an ECP if such individual has amounts invested on a discretionary basis, the aggregate of which is in excess of (i) $10,000,000, or (ii) $5,000,000 if such individual also enters into the agreement, contract, or transaction in order to manage the risk associated with an asset owned or liability incurred, or reasonably likely to be owned or incurred, by such individual. PO 00000 Frm 00052 Fmt 4701 Sfmt 4700 on a similar basis.589 In some cases, discussed below in detail, if a Forex Pool does not satisfy the ECP definition applicable to commodity pools engaging in the types of foreign currency transactions noted above 590 and it engages in these types of foreign currency transactions (such transactions, ‘‘retail forex transactions’’ and such commodity pools, ‘‘Retail Forex Pools’’), the transactions will be subject to a regulatory regime that imposes certain requirements and restrictions on the counterparties to the Retail Forex Pool, and, if the Retail Forex Pool engages in retail forex transactions other than with certain counterparties, on the commodity pool operator (‘‘CPO’’) who operates the Retail Forex Pool. These requirements and restrictions do not apply if the Forex Pool satisfies the ECP definition applicable to commodity pools engaging in the types of foreign currency transactions noted above. The Commissions are adopting further definitions of the term ‘‘eligible contract participant’’ in the following six respects: (i) Generally prohibiting a Forex Pool from qualifying as an ECP if such Forex Pool directly enters into retail forex transactions 591 and has one or more direct participants that are not ECPs; 592 (ii) clarifying that, in determining whether a direct participant in a Forex Pool is an ECP, the indirect participants in the Forex Pool will not be considered unless such Forex Pool, a commodity pool holding a direct or indirect (through one or more intermediate tiers of pools) interest in 589 See CEA sections 2(c)(2)(B)(vi) and 2(c)(2)(C)(vii), 7 U.S.C. 2(c)(2)(B)(vi) and 7 U.S.C. 2(c)(2)(C)(vii). In this context, the term ‘‘offexchange’’ means other than on or subject to the rules of an organized exchange, as defined in CEA section 1a(37), 7 U.S.C. 1a(37). 590 See CEA section 1a(18)(A)(iv), 7 U.S.C. 1a(18)(A)(iv); see also CFTC Regulation § 1.3(m)(5) (exporting the look-through language of CEA section 1a(18)(A)(iv) to CEA section 1a(18)(A)(v)). The Dodd-Frank Act amended the ECP definition to include a provision that specifically applies to Forex Pools engaging in these types of foreign currency transactions. See Section 741(b)(10) of the Dodd-Frank Act (adding a provision to CEA section 1a(18)(A)(iv), 7 U.S.C. 1a(18)(A)(iv), stating ‘‘provided, however, that for purposes of section 2(c)(2)(B)(vi) and section 2(c)(2)(C)(vii), the term ‘eligible contract participant’ shall not include a commodity pool in which any participant is not otherwise an eligible contract participant.’’). See part III.B below for a discussion of this provision. This provision applies only with respect to retail forex transactions. This means that a Retail Forex Pool, as defined above, that is not an ECP for retail forex transaction purposes could be an ECP for other transactions it enters into that are not retail forex transactions. 591 In many commodity pool structures, this is the master fund alone. 592 But see note 652, infra, with respect to single level Forex Pools using retail forex transactions solely to hedge. E:\FR\FM\23MYR2.SGM 23MYR2 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES2 such Forex Pool, or any commodity pool in which such Forex Pool holds a direct or indirect interest has been structured to evade Subtitle A of Title VII of the Dodd-Frank Act; 593 (iii) prohibiting a commodity pool from qualifying as an ECP unless it has total assets exceeding $5 million and is operated by a person described in CEA section 1a(18)(A)(iv)(II);594 (iv) explicitly including swap dealers, security-based swap dealers, major swap participants, and major security-based swap participants in the definition of ECP; (v) permitting a non-ECP to qualify as an ECP, with respect to certain swaps, based on the collective net worth of its owners, subject to several conditions, including that the owners are ECPs; and (vi) permitting a Forex Pool to qualify as an ECP notwithstanding that it has one or more direct participants that are not ECPs if the Forex Pool (a) is not formed for the purpose of evading regulation under CEA sections 2(c)(2)(B) or (C) or related rules, regulations or orders, (b) has total assets exceeding $10 million and (c) is formed and operated by a registered CPO or by a CPO who is exempt from registration as such pursuant to § 4.13(a)(3). In addition, the Commissions are issuing interpretive guidance regarding the definition of ECP to correct an inaccurate statutory crossreference with respect to the ability of government entities to qualify as ECPs under CEA section 1a(18)(A)(vii).595 The Commissions also are issuing interpretive guidance with respect to the ECP status of Forex Pools whose participants are limited solely to nonU.S. persons and which are operated by CPOs located outside the United States, its territories or possessions. The Commissions note that commenters raised interpretive and other issues related to the ECP definition that the Commissions may consider in the future.596 593 Section 721(c) of the Dodd-Frank Act requires the CFTC to adopt a rule to further define the terms ‘‘swap,’’ ‘‘swap dealer,’’ ‘‘major swap participant,’’ and ‘‘eligible contract participant,’’ in order ‘‘[t]o include transactions and entities that have been structured to evade’’ subtitle A of Title VII (or an amendment to the CEA made by subtitle A). 594 7 U.S.C. 1a(18)(A)(iv)(II). 595 7 U.S.C. 1a(18)(A)(vii). 596 These issues include: (i) The ECP status of jointly and severally liable borrowers and counterparties, non-ECPs guaranteed by ECPs, and non-ECP swap collateral providers; (ii) whether bond proceeds count toward the ‘‘owns and invests on a discretionary basis $50,000,000 or more in investments’’ element of the governmental ECP prong (CEA section 1a(18)(A)(vii), 7 U.S.C. 1a(18)(A)(vii)); (iii) the relationship between the ECP and eligible commercial entity definitions for purposes of CEA section 1a(18)(A)(vii), 7 U.S.C. 1a(18)(A)(vii); (iv) the scope of the ‘‘proprietorship’’ element of the entity prong of the ECP definition in CEA section 1a(18)(A)(v), 7 U.S.C. 1a(18)(A)(v) VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 B. Commodity Pool Look-Through for Retail Forex Transactions 1. Statutory Provisions Prior to the Dodd-Frank Act, clause (A)(iv) of the ECP definition provided that a commodity pool was an ECP if it had $5 million in total assets and was operated by a person regulated under the CEA, regardless of whether each participant in the commodity pool was itself an ECP.597 Section 741(b)(10) of the Dodd-Frank Act added a proviso to clause (A)(iv) 598 stating that a Forex Pool will not qualify as an ECP, solely for purposes of CEA sections 2(c)(2)(B)(vi) or 2(c)(2)(C)(vii) (i.e., retail forex transactions) if any participant in the Forex Pool is itself not an ECP.599 Thus, for purposes of retail forex transactions, the Dodd-Frank Act imposed a requirement to ‘‘look through’’ a Forex Pool—meaning that ECP status would be limited to Forex Pools in which each participant is itself an ECP. This is important for two reasons. First, a Forex Pool that does not (which the Commissions are addressing to a limited extent in the discussion of the new line of business ECP category in part III.F, infra, and in Regulation § 1.3(m)(7)(ii)(C) under the CEA); (v) the meaning of the new ‘‘amounts invested on a discretionary basis’’ element of the individual prong of the ECP definition (CEA section 1a(18)(A)(xi), 7 U.S.C. 1a(18)(A)(xi)); (vi) whether persons can be ECPs in anticipation of receiving, but before they have, the necessary assets; and (vii) that swap dealers are not among the entities listed in CEA section 2(c)(2)(B)(i)(II), 7 U.S.C. 2(c)(2)(B)(i)(II), as acceptable counterparties to non-ECPs engaging in retail forex transactions. 597 Clause (A)(iv) of the pre-Dodd-Frank Act ECP definition also included a commodity pool operated by a foreign person performing a similar role or function as a person regulated under the CEA and subject as such to foreign regulation (regardless of whether the foreign person was itself an ECP). 598 The proviso states ‘‘provided, however, that for purposes of section 2(c)(2)(B)(vi) and section 2(c)(2)(C)(vii), the term ‘eligible contract participant’ shall not include a commodity pool in which any participant is not otherwise an eligible contract participant.’’ CEA section 1a(18)(A)(iv); 7 U.S.C. 1a(18)(A)(iv). 599 See CEA section 1a(18)(A)(iv), 7 U.S.C. 1a(18)(A)(iv). In other words, the proviso in section 1a(18)(A)(iv) does not reference or implicate ECP status for purposes of (i) CEA section 2(e), 7 U.S.C. 2(e) (which, as discussed above, permits non-ECPs to trade swaps only on or subject to the rules of a DCM); (ii) Securities Act section 5(d) (which, as discussed above, makes it unlawful for a person to offer to sell, offer to buy or purchase, or sell a security-based swap to a person that is not an ECP unless a registration statement under the Securities Act is in effect with respect to that security-based swap); or (iii) Exchange Act section 6(l) (which as discussed above, makes it unlawful for a person to effect a transaction in a security-based swap with or for a person that is not an ECP unless the transaction is effected on a national securities exchange registered with the SEC). The lookthrough proviso does not expressly state that indirect participants, as well as direct participants, in the Forex Pool must be ECPs for the Forex Pool to be an ECP. But see notes 636 and 638, infra (discussing the authority for such an approach). PO 00000 Frm 00053 Fmt 4701 Sfmt 4700 30647 qualify as an ECP can enter into a retail forex transaction described in CEA section 2(c)(2)(B)(i)(I) only with one of the federally-regulated counterparties enumerated in CEA sections 2(c)(2)(B)(i)(II)(aa) (U.S. financial institutions),600 (bb) (certain brokers, dealers and their associated persons),601 (cc) (certain futures commission merchants (‘‘FCMs’’) and their affiliated persons),602 (dd) (certain financial holding companies) 603 or (ff) (certain retail foreign exchange dealers (‘‘RFEDs’’)) 604 (each an ‘‘Enumerated Counterparty’’ and collectively ‘‘Enumerated Counterparties’’); the counterparty restriction does not apply to retail forex transactions described in CEA section 2(c)(2)(C)(i)(I)(bb) 605 entered into by a Forex Pool that does not qualify as an ECP, though such transactions are subject to antifraud protections and related enforcement provisions if entered into with a 600 7 U.S.C. 2(c)(2)(B)(i)(II)(aa). The term ‘‘financial institution’’ is defined in CEA Section 1a(21), 7 U.S.C. 1a(21). 601 7 U.S.C. 2(c)(2)(B)(i)(II)(bb). This category is comprised of each: (AA) [] broker or dealer registered under section 15(b) (except paragraph (11) thereof) or 15C of the Securities Exchange Act of 1934 (15 U.S.C. 78o(b), 78o–5); [and] (BB) [ ] associated person of a broker or dealer registered under section 15(b) (except paragraph (11) thereof) or 15C of the Securities Exchange Act of 1934 (15 U.S.C. 78o(b), 78o–5) concerning the financial or securities activities of which the broker or dealer makes and keeps records under section 15C(b) or 17(h) of the Securities Exchange Act of 1934 (15 U.S.C. 78o–5(b), 78q(h)). 602 7 U.S.C. 2(c)(2)(B)(i)(II)(cc). This category is comprised of each: (cc)(AA) []futures commission merchant that is primarily or substantially engaged in the business activities described in section 1a of this Act, is registered under this Act, is not a person described in item (bb) of this subclause, and maintains adjusted net capital equal to or in excess of the dollar amount that applies for purposes of clause (ii) of this subparagraph; [and] (BB) [ ] affiliated person of a futures commission merchant that is primarily or substantially engaged in the business activities described in section 1a of this Act, is registered under this Act, and is not a person described in item (bb) of this subclause, if the affiliated person maintains adjusted net capital equal to or in excess of the dollar amount that applies for purposes of clause (ii) of this subparagraph and is not a person described in such item (bb), and the futures commission merchant makes and keeps records under section 4f(c)(2)(B) of this Act concerning the futures and other financial activities of the affiliated person. 603 7 U.S.C. 2(c)(2)(B)(i)(II)(dd). The enumerated counterparty in this category is ‘‘a financial holding company (as defined in section 2 of the Bank Holding Company Act of 1956).’’ 604 7 U.S.C. 2(c)(2)(B)(i)(II)(ff). This category is comprised of each: retail foreign exchange dealer that maintains adjusted net capital equal to or in excess of the dollar amount that applies for purposes of clause (ii) of this subparagraph and is registered in such capacity with the [CFTC], subject to such terms and conditions as the [CFTC] shall prescribe, and is a member of a futures association registered under section 17 [of the CEA]. 605 7 U.S.C. 2(c)(2)(C)(i)(I)(bb). E:\FR\FM\23MYR2.SGM 23MYR2 30648 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES2 counterparty other than an Enumerated Counterparty described in CEA section 2(c)(2)(B)(i)(II)(aa), (bb) or (dd).606 Second, the operator of a Retail Forex Pool engaging in retail forex transactions with an Enumerated Counterparty that is an FCM, specified affiliated person of an FCM or RFED must register with the CFTC as a CPO,607 unless the CPO also is an 606 The counterparty limitation with respect to CEA section 2(c)(2)(B)(i)(I) retail forex transactions is a function of the fact that the CEA’s exchangetrading requirement generally applies with respect to foreign currency futures, foreign currency options on futures, and foreign currency options. See CEA section 4(a), 7 U.S.C. 6(a) (generally requiring futures contracts to be traded on or subject to the rules of a DCM); CEA section 4c(b), 7 U.S.C. 6c(b) (prohibiting trading options subject to the CEA contrary to CFTC rules, regulations or orders permitting such trading); Part 32 of the CFTC’s rules, 17 CFR part 32 (generally prohibiting entering into options subject to the CEA) and CFTC Regulation § 33.3(a), 17 CFR 33.3(a) (prohibiting entering into options on futures other than on or subject to the rules of a DCM). Because CEA section 4(a) would render an off-exchange futures contract illegal but for CEA section 2(c)(2)(B) permitting such transactions with an Enumerated Counterparty, it would be illegal for a nonEnumerated Counterparty to enter into a futures contract described in 2(c)(2)(B)(i)(I) with a non-ECP. Similarly, because options can be conducted only pursuant to CFTC authority and the CFTC has proposed to treat commodity options within its jurisdiction as swaps, CEA section 2(e) would prohibit such options, if on foreign exchange and entered into with a non-ECP, but for the fact that 2(c)(2)(B) permits them if traded with an Enumerated Counterparty. The lack of a counterparty limitation with respect to CEA section 2(c)(2)(C)(i)(I)(bb) retail forex transactions is a function of the different structures of CEA sections 2(c)(2)(B) and (C). Whereas CEA section 2(c)(2)(B)(i) covers transactions that would be illegal but for compliance with CEA section 2(c)(2)(B) (due to such section’s incorporation of the entire CEA, including, for example, the exchangetrading requirement discussed above), falling within CEA section 2(c)(2)(C)(i)(I), by that section’s own terms, merely brings a covered transaction within the scope of CEA section 2(c)(2)(C), which does not include the exchange-trading requirement of CEA section 4(a). Because CEA section 2(c)(2)(C)(i)(I) covers transactions that may or may not also be transactions described in section 2(c)(2)(B)(i)(I) and the far fewer requirements imposed by CEA section 2(c)(2)(C) invite characterization of such difficult-to-categorize transactions as falling solely within CEA section 2(c)(2)(C), the CFTC will interpret such dually characterizable transactions as governed by CEA section 2(c)(2)(B). If such transactions fall only within CEA section 2(c)(2)(C), however, because they would be subject to neither the exchangetrading requirement of CEA section 4(a) nor the CFTC’s plenary options authority under CEA section 4c(b) (while CEA section 2(c)(2)(C)(ii)(I), 7 U.S.C. 2(c)(2)(C)(ii)(I), reserves the CFTC’s section 4c(b) authority, in this scenario, the contract in question is not an option), a person other than an Enumerated Counterparty may act as counterparty to a non-ECP. Such contracts would, however, be subject to two of the CEA’s antifraud provisions, sections 4(b) and 4b, 7 U.S.C 6(b) and 7 U.S.C 6b, respectively, as if they were futures contracts. See CEA section 2(c)(2)(C)(iv), 7 U.S.C. 2(c)(2)(C)(iv). Such contracts also would be subject to related enforcement provisions. See CEA section 2(c)(2)(C)(ii)(I), 7 U.S.C. 2(c)(2)(C)(ii)(I). 607 See CEA sections 2(c)(2)(B)(iv)(I) and (C)(iii)(I) (requiring registration for CPOs of Retail Forex VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 Enumerated Counterparty under 2(c)(2)(B)(i)(II)(aa), (bb) or (dd) 608 or an exemption from CPO registration applies.609 Moreover, CEA section 2(c)(2)(E)(ii)(I),610 which was added by section 742(c)(2) of the Dodd-Frank Act, Pools entering into retail forex transactions with FCMs, specified affiliated persons thereof or RFEDs). By contrast, those sections exclude from the CPO registration requirement CPOs of Retail Forex Pools engaging in retail forex transactions with Enumerated Counterparties described in CEA section 2(c)(2)(B)(i)(II)(aa), (bb), (ee) and (ff). While the cited CEA sections refer to counterparties not described in ‘‘any of item (aa), (bb), (ee), or (ff)’’ of subparagraph (B)(i)(II), the CFTC Reauthorization Act of 2008 (‘‘CRA’’), included as Title XIII of the Food, Conservation and Energy Act of 2008, Pub.L. 110–246, 122 Stat. 1651 changed item (ee) to item (dd) (a financial holding company as defined in section 2 of the Bank Holding Company Act of 1956) and removed item (ff) (formerly an investment bank holding company (as defined in section 17(i) of the Exchange Act (15 U.S.C. 78q(i))). Therefore, the Commissions interpret the reference in CEA sections 2(c)(2)(B)(iv)(I)(cc) and 2(c)(2)(C)(iii)(I)(cc) to items (aa), (bb), (ee), or (ff) to be references to items (aa), (bb) and (dd). Cf. Retail Foreign Exchange Transactions; Conforming Changes to Existing Regulations in Response to the Dodd-Frank Wall Street Reform and Consumer Protection Act, 76 FR 56103 (Sept. 12, 2011) (providing background on related incorrect internal references in CEA sections 2(c)(2)(B) and (C)). See also CFTC Regulation § 5.3(a)(2)(i), 17 CFR 5.3(a)(2)(i), which requires a CPO, as defined in CFTC Regulation § 5.1(d)(1), 17 CFR 5.1(d)(1), to register as such. CFTC Regulation § 5.1(d)(1), in turn, defines a CPO, for purposes of Part 5 of the CFTC’s Regulations, 17 CFR part 5, as ‘‘any person who operates or solicits funds, securities or property for a pooled investment vehicle that is not an [ECP] as defined in section 1a(18) of the Act, and that engages in retail forex transactions.’’ The CFTC interprets the references in Regulation § 5.1(d)(1) to ECPs as defined in CEA section 1a(18) to include the ECP definition as further defined or interpreted by the Commissions under authority conferred by the Dodd-Frank Act or otherwise amended or interpreted by the Commissions or a court. While the statutory CPO definition in CEA section 1a(11)(A), 7 U.S.C. 1a(11)(A), does not include transactions described in CEA section 2(c)(2)(B)(i), the Commissions believe this was an oversight. In any case, CEA section 1a(11)(B), 7 U.S.C. 1a(11)(B), grants the CFTC the authority to further define the term CPO, which the CFTC has done in CFTC Regulation § 5.1(d)(1). Therefore, a person operating a commodity pool engaging in transactions described in CEA section 2(c)(2)(B)(i) is a CPO. 608 See CEA sections 2(c)(2)(B)(iv)(II) and 2(c)(2)(C)(iii)(II). While CEA sections 2(c)(2)(B)(iv)(II) and 2(c)(2)(C)(iii)(II) refer to counterparties described in item (aa), (bb), (ee), or (ff) of subparagraph (B)(i)(II), the CFTC Reauthorization Act of 2008 changed item (ee) to item (dd) and removed item (ff). Therefore, the Commissions interpret the reference in CEA sections 2(c)(2)(B)(iv)(II) and 2(c)(2)(C)(iii)(II) to items (aa), (bb), (ee), or (ff) to be references to items (aa), (bb) and (dd). Cf. Retail Foreign Exchange Transactions; Conforming Changes to Existing Regulations in Response to the Dodd-Frank Wall Street Reform and Consumer Protection Act, 76 FR 56103 (Sept. 12, 2011) (providing background on related incorrect internal references in 2(c)(2)(B) and (C)). 609 See, e.g., CFTC Regulation § 4.13(a)(3) (exempting from CPO registration operators of commodity pools engaged in a de minimis amount of trading in CFTC-jurisdictional contracts). 610 7 U.S.C. 2(c)(2)(E)(ii)(I). PO 00000 Frm 00054 Fmt 4701 Sfmt 4700 prohibits an Enumerated Counterparty from entering into retail forex transactions described in CEA section 2(c)(2)(B)(i)(I) with a person that is not an ECP ‘‘except pursuant to a rule or regulation of [the appropriate Federal regulator of such Enumerated Counterparty allowing such transactions] under such terms and conditions as [such regulator] shall prescribe.’’ CEA section 2(c)(2)(E)(iii)(II) 611 requires that such rules or regulations treat similarly all agreements, contracts, and transactions in foreign currency that are functionally or economically similar to CEA section 2(c)(2)(B)(i)(I) agreements, contracts, and transactions. Separately, subclause (A)(v)(III) of the ECP definition, both before and after enactment of the Dodd-Frank Act, provides that a corporation, partnership, proprietorship,612 organization, trust or other business entity may qualify as an ECP if it has a net worth exceeding $1 million and ‘‘enters into an agreement, contract, or transaction in connection with the conduct of the entity’s business or to manage the risk associated with an asset or liability owned or incurred or reasonably likely to be owned or incurred by the entity in the conduct of the entity’s business.’’ 613 2. Proposed Approach The Commissions stated in the Proposing Release that ‘‘in some cases commodity pools unable to satisfy the conditions of clause (A)(iv) of the ECP definition may rely on clause (A)(v) to qualify as ECPs instead for purposes of retail forex’’ and that permitting such reliance would frustrate the intent of Congress in imposing the look-through requirement on Forex Pools in clause (A)(iv) of the ECP definition.614 The Commissions proposed to further define the term ‘‘eligible contract participant’’ to preclude a Forex Pool from qualifying as an ECP for purposes of retail forex transactions in reliance on clause (A)(v) of the ECP definition if 611 7 U.S.C. 2(c)(2)(E)(iii)(II). also are covered by a different prong of the ECP definition. An individual can qualify as an ECP under clause (A)(xi) of the ECP definition. See CEA section 1a(18)(A)(xi), 7 U.S.C. 1a(18)(A)(xi). 613 There are two other ways a person can qualify as an ECP under clause (A)(v): (i) being an entity with total assets exceeding $10 million; or (ii) being an entity the obligations of which under an agreement, contract, or transaction are guaranteed or otherwise supported by a letter of credit or keepwell, support, or other agreement by an entity with total assets exceeding $10 million or an entity described in clause (A)(i), (ii), (iii), (iv) or (vii), or paragraph (C), of the ECP definition. See CEA section 1a(18)(A)(v)(I) and (II), 7 U.S.C. 1a(18)(A)(v)(I) and (II), respectively. 614 Proposing Release, 75 FR at 80185. 612 Individuals E:\FR\FM\23MYR2.SGM 23MYR2 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations such Forex Pool has any participant that is not an ECP and, therefore, is not an ECP due to the look-through provision added to clause (A)(iv). Further, because commodity pools can be structured in various ways and can have one or more feeder funds and/or pools, the Commissions proposed to preclude a Forex Pool from being an ECP for purposes of retail forex transactions if there was any non-ECP participant at any level of the pool structure (e.g., the pool itself, a direct participant that invests in the pool, or any indirect participant that invests in that pool through other pools or vehicles). mstockstill on DSK4VPTVN1PROD with RULES2 3. Commenters’ Views One commenter supported the Commissions’ efforts to close the potential loophole of Forex Pools that are unable to qualify as ECPs due to the new look-through provision in clause (A)(iv) of the ECP definition instead qualifying as ECPs under clause (A)(v) of the ECP definition.615 This commenter indicated that it shares the Commissions’ concern that Forex Pools that do not satisfy the amended ECP definition due to the look-through provision for commodity pools in clause (A)(iv) may alternatively rely upon clause (A)(v) of the ECP definition to qualify as an ECP for purposes of retail forex transactions.616 This commenter further stated that Congressional intent in requiring a look-through for Forex Pools would be frustrated if fraudulent pool operators could avail themselves of this alternative.617 However, several commenters recognized the importance of the concern about a potential loophole 618 615 See letter from the NFA. The NFA indicated that it recently took separate emergency actions against two firms that did not qualify under the NFA’s requirements for retail forex transactions. In one case, the commodity pool fell short of the $5 million total asset requirement in clause (A)(iv) of the ECP definition; in the other case, the firm never properly formed a commodity pool. The NFA cautioned in its letter, ‘‘these cases illustrate that firms will attempt to obtain ECP status to shield themselves from the jurisdiction of regulators to the detriment of pool participants.’’ 616 Id. 617 Id. 618 See, e.g., letters from SIFMA—AMG dated September 15, 2011 (‘‘SIFMA AMG IV’’) (acknowledging some form of ECP look-through is appropriate to prevent evasion where circumvention otherwise could occur and stating that it is sympathetic to the Commissions’ implicit objective of ensuring that a person that would not qualify as an ECP not be permitted to accomplish indirectly what it is not permitted to do directly), Sidley Austin LLP (‘‘Sidley’’) (stating that the commenter fully appreciates that Congress added the look-through language to the ECP definition to prevent unscrupulous forex market participants from avoiding the retail forex provisions of the CEA and the CFTC’s rules by ‘‘engineering’’ an ECP by pooling the capital of a large group of retail VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 but stated that the Commissions should revise the proposal to mitigate the potential adverse consequences to market participants. One commenter, for example, commented on the expected effects of the proposed rule on funds of funds (‘‘FOFs’’).619 According to this commenter, FOFs (i) normally face as counterparties foreign subsidiaries of U.S. banks and foreign banks, and (ii) would incur substantial counterparty, documentation and operational costs in moving their retail forex transactions onto DCMs or toward the Enumerated Counterparties. In a similar vein, two commenters advised that a substantial number of hedge funds, as well as publicly offered commodity pools, would, under the Commissions’ proposal, fail to qualify as ECPs for purposes of retail forex transactions, as most such funds have at least one direct or indirect non-ECP participant.620 These commenters indicated that this would disrupt the trading strategies employed by many commodity trading advisors (‘‘CTAs’’) on behalf of commodity pools.621 One of these commenters suggested an antievasion approach combining a lower level of pool assets with a requirement that the commodity pool not be formed for the purpose of evading the regulatory requirements applicable to retail forex transactions.622 Another commenter argued that Congress did not include the lookthrough provision in clause (A)(v) of the ECP definition because of its effect on bona fide hedgers.623 This commenter also advised that the primary entities affected are hedge fund and private equity fund managers investing in securities who use retail forex customers, thus depriving those investors of the protections otherwise afforded to them), AIMA I (stating that ‘‘we understand Congress has made a decision to try to protect retail investors by amending the definition of ECP under Section 1a(1[8]) of the [CEA] to include that, for a commodity pool to qualify as an ECP under subsection (A)(iv), the pool’s underlying participants must also qualify as ECPs under section 1a(1[8])).’’ 619 See letter from Sidley. Sidley noted that FOF managers’ retail forex transactions are largely undertaken for hedging purposes and that most FOF managers offer investments to non-U.S. persons, a significant number of which pay for their investments in FOF interests using their own currency. Sidley further noted that, because most FOFs accept investments only in U.S. dollars, FOF managers must convert to U.S. dollars the foreign currency received from such investors and invest those dollars in underlying funds, and that they enter into a hedging transaction to reduce the risk of exchange rate changes between an investor’s currency and the U.S. dollar. 620 See letters from Willkie Farr & Gallagher LLP (‘‘Willkie Farr’’) and the NYCBA Committee. 621 Id. 622 See letter from Willkie Farr. 623 See letter from Akin Gump Strauss Hauer & Feld LLP (‘‘Akin Gump’’). PO 00000 Frm 00055 Fmt 4701 Sfmt 4700 30649 transactions solely to hedge investment portfolio currency risks, and/or because they accept subscriptions in currencies other than U.S. dollars.624 Several commenters disagreed with the Commissions’ statement in the proposal that extending the lookthrough provision in clause (A)(iv) of the ECP definition to clause (A)(v) would effectuate Congressional intent. Two commenters noted that there is no specific Dodd-Frank Act provision requiring such a change.625 Two other commenters argued that clause (v) of the ECP definition provides an independent basis for qualification as an ECP, which should not be affected by the changes in clause (A)(iv) of the ECP definition.626 One commenter indicated that the extraterritorial application of the proposed rules regarding the ECP definition is unclear.627 Among other things, this commenter indicated it is unnecessary to extend the scope of the look-through to protect possible retail investors outside of the U.S., especially where a CPO has not marketed a pool in the U.S. and does not otherwise have any U.S. investors.628 Commenters proposed several alternative approaches that they believed would address the Commissions’ concerns. One commenter suggested that the Commissions create a new category of ECPs for Forex Pools comprised entirely of qualified eligible persons (‘‘QEPs’’) 629 and operated by persons subject to regulation under the CEA.630 This commenter also suggested that the Commissions create a new category of ECPs for Forex Pools that satisfy a monetary threshold for total assets or for the minimum initial investment of a Forex Pool to be sufficiently large that, in general, only legitimate pools would exceed such thresholds.631 Finally, this commenter suggested that the Commissions create a category of ECPs 624 Id. 625 See letters from AIMA I and Ropes & Gray LLP (‘‘Ropes & Gray’’). 626 See letters from Akin Gump, Sidley and Skadden, Arps, Slate, Meagher & Flom LLP (‘‘Skadden’’). Sidley also indicated that there seems to be no compelling reason to treat commodity pools worse than other sophisticated market participants with respect to retail forex transactions with non-Enumerated Counterparties, and no reason to treat them worse than a corporation or other entity with only $10 million in total assets that therefore qualifies as an ECP under clause (A)(v) of the ECP definition to trade retail forex transactions although it may have no particular expertise in such markets. 627 See letter from AIMA I. 628 Id. 629 The term ‘‘qualified eligible person’’ is defined in CFTC Regulation §§ 4.7(a)(2) and (3). 630 See letter from Sidley. 631 Id. E:\FR\FM\23MYR2.SGM 23MYR2 30650 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations for non-U.S. persons.632 A second commenter suggested that the Commissions create a category of ECPs for commodity pools that are operated by a CPO or advised by a CTA subject to regulation by a foreign regulator comparable to the CFTC.633 One commenter suggested (i) allowing commodity pools and their counterparties to rely, for the duration of an investment and each time commodity pool participants make an investment decision, on participant ECP representations provided in connection with an initial investment, provided that each participant covenants to update such representations if they become inaccurate, and (ii) providing specific relief for FOFs because they generally invest all or substantially all of their assets in underlying portfolio funds and use retail forex transactions to reduce foreign exchange exposure.634 mstockstill on DSK4VPTVN1PROD with RULES2 4. Final Rule After considering commenters’ concerns, the Commissions are adopting final rules that have been revised from the proposal. In particular, consistent with the statutory text of the DoddFrank Act, CFTC Regulation § 1.3(m)(5)(i) further defines the term ‘‘eligible contract participant’’ to prohibit a Forex Pool that directly enters into a retail forex transaction (i.e., a transaction-level commodity pool) 635 from qualifying as an ECP under clause (A)(iv) or clause (A)(v) of the ECP definition, solely for purposes of entering into retail forex transactions, if the pool has one or more direct participants that are not ECPs. In response to commenters’ concerns described above, CFTC Regulation § 1.3(m)(5)(ii) is revised to provide that, in determining whether a commodity pool that is a direct participant in a 632 Id. Sidley cited to the approach in Regulation S under the Securities Act (17 CFR 230.901 et seq.), Sections 3(c)(1) and (7) of the Investment Company Act of 1940 (15 U.S.C. 80a–3(c)(1) and (7)), and CFTC Regulation § 4.7(a)(2)(xi). 633 See letter from Willkie Farr. 634 See letter from Sidley. 635 Commodity pool structures can take various forms. One common commodity pool structure is a ‘‘master-feeder’’ fund structure. In such a structure, investors purchase interests in ‘‘feeder funds,’’ which in turn purchase interests in a ‘‘master fund.’’ Typically, the only fund in a commodity pool structure that enters into retail forex transactions (and other transactions) directly is the master fund; the feeder funds (and their investors) typically would participate indirectly by receiving the profit or loss from such retail forex transactions (and other transactions) as distributions based on the feeder funds’ interests in the master fund. Notwithstanding that the master-feeder structure is common, other structures exist. Thus, each fund in a commodity pool structure that directly enters into retail forex transactions is a transaction-level commodity pool. VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 transaction-level Forex Pool is an ECP, the indirect participants in the transaction-level Forex Pool 636 will not be considered unless such Forex Pool, a commodity pool holding a direct or indirect (through one or more intermediate tiers of pools) interest in such Forex Pool, or any commodity pool in which such Forex Pool holds a direct or indirect interest has been structured to evade Subtitle A of Title VII of the Dodd-Frank Act by permitting persons that are not ECPs to participate in agreements, contracts, or transactions described in section 2(c)(2)(B)(i) or section 2(c)(2)(C)(i) of the Commodity Exchange Act. That is, absent evasion, the Commissions are changing the proposed ‘‘indefinite look-through’’ to an ‘‘evasion-based look-through’’ in the final rule.637 In adding the look-through provision to the commodity pool prong of the ECP definition, Congress made a decision to protect retail foreign exchange investors by requiring that the participants in a Forex Pool qualify as ECPs for the Forex Pool itself to qualify as an ECP. The Commissions believe that the intent of the look-through provision—protecting Forex Pool participants from fraudulent and abusive conduct—must be given effect to comply with this Congressional mandate. Nevertheless, the Commissions acknowledge commenters’ concerns about potential unintended consequences of applying an indefinite look-through to every direct and indirect participant of a Forex Pool, as proposed. Accordingly, to avoid unintended consequences and related costs for Forex Pools whose operators and managers have not historically presented the risks that the look-through provision was intended to address,638 636 A fund that does not itself engage in retail forex transactions but that holds an interest in a transaction-level Forex Pool that engages in retail forex transactions is itself a commodity pool. Cf. U.S. Regulation of the International Securities and Derivatives Markets—Greene, Beller, Rosen, Silverman, Braverman and Sperber, § 12.13[1], n.351 and related text. 637 The Commissions caution, however, that they will closely monitor developments in this part of the market and will not hesitate to revisit their decision to limit the look-through provision pursuant to 1.3(m)(5)(ii) should they observe a pattern of evasion or misconduct. 638 The proposed rule was based on the CFTC’s longstanding, broad view of what constitutes a ‘‘pool,’’ a view recently codified in the ‘‘commodity pool’’ definition by section 721(a)(5) of the DoddFrank Act in CEA section 1a(10), 7 U.S.C. 1a(10), and recognized by courts, and thus applied the look-through provision at each level of a Forex Pool’s investment structure. See CFTC, Commodity Pool Operators and Commodity Trading Advisors: Amendments to Compliance Obligations, 77 FR 11252 (Feb. 24, 2012) (‘‘CPO/CTA Compliance Release’’) (advising that ‘‘it is the position of the [CFTC] that a fund investing in an unaffiliated commodity pool it itself a commodity pool’’ and PO 00000 Frm 00056 Fmt 4701 Sfmt 4700 the Commissions are replacing the proposed indefinite look-through of every participant in a Forex Pool with a limited, evasion-based look-through pursuant to which a transaction-level Forex Pool will qualify as an ECP, for purposes of retail forex transactions, if all of such Forex Pool’s direct participants are ECPs, and will look through a commodity pool participant in such Forex Pool only if it, at any level, has been structured to evade the look-through provision in clause (A)(iv) of the ECP definition. The Commissions believe the final rule strikes the right balance between implementing strong protections for non-ECP commodity pool participants and not imposing undue burdens or costs on CPOs, CTAs and commodity pool participants related to retail forex transactions. In addition, the Commissions believe that replacing the indefinite look-through with the limited, evasion-based look-through alleviates many of the commenters’ concerns. Accordingly, the Commissions believe it is appropriate to limit the look-through provision to the level of a commodity pool structure that enters into retail forex transactions and to look through commodity pools to their ultimate participants only in those ‘‘[t]his interpretation is consistent with the statutory definition of commodity pool, which draws no distinction between direct and indirect investments in commodity interests’’); CFTC v. Equity Financial Group, 572 F.3d 150, 157–158 (July 13, 2009) (concluding, in the context of a commodity pool that invested all of its assets with a commodity pool operated by a different CPO, that the CFTC’s commodity pool regulations ‘‘cover pools that invest in other pools’’ and that ‘‘the remedial purposes of the statute would be thwarted if the operator of a fund could avoid the regulatory scheme simply by investing in another pool rather than trading’’). The same logic applies to a masterfeeder structure operated by the same CPO: the remedial purpose of the look-through proviso in clause (A)(iv) of the statutory ECP definition would be thwarted if the look-through could be defeated simply by funneling pool participants into a master fund through a feeder fund. The proposed rule also was borne of the CFTC’s long history of combating fraudulent practices by typically unregistered individuals or entities that prey upon often unsophisticated retail customers through complex and highly leveraged off-exchange transactions in foreign currency. However, the operators and managers of commodity pool FOFs, master-feeder structures and hedge funds for sophisticated investors have not generally been the subject of CFTC enforcement actions with respect to retail forex transactions. For an in depth discussion of the history of the CFTC’s authority over retail forex transactions, the abuses giving rise to that authority, and related enforcement actions, see CFTC, Regulation of Off-Exchange Retail Foreign Exchange Transactions and Intermediaries, 75 FR 3282 (Jan. 20, 2010). Congress acted three times in a decade to clarify the CFTC’s authority to prosecute the rampant fraud seen in this area—first in the Commodity Futures Modernization Act of 2000, Public Law 106–554, 114 Stat. 2763 (Dec. 21, 2000) in 2000, then again in the CRA, and finally in the Dodd-Frank Act in 2010. E:\FR\FM\23MYR2.SGM 23MYR2 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES2 cases in which it is required to prevent evasion of the protections for those persons whom Congress intended to be subject to retail forex transactions restrictions. At the same time, the Commissions do not believe that Forex Pools failing to qualify as ECPs due to the look-through provision in clause (A)(iv) of the ECP definition should, nonetheless, be permitted unfettered access to ECP status under clause (A)(v).639 The lookthrough provision for Forex Pools provides heightened investor protection from forex fraud for Forex Pool participants that are not themselves ECPs. Thus, the Commissions believe that permitting Forex Pools with one or more non-ECP participants to achieve ECP status by relying on clause (A)(v) of the ECP definition, which applies to business entities generally, would serve to undermine the look-through provision that Congress specifically imposed on Forex Pools under clause (A)(iv).640 Moreover, developments subsequent to the issuance of the Proposing Release should ameliorate commenters’ concerns that CEA section 639 In section 712(d)(2)(A) of the Dodd-Frank Act, Congress granted the Commissions the authority to adopt such rules regarding the ECP definition as the Commissions determine are necessary and appropriate, in the public interest, and for the protection of investors. 640 The Commissions note that several commenters requested clarification regarding the relationship between the look-through provision set forth in CFTC Regulation § 1.3(m)(5) and the prohibition on a commodity pool qualifying as an ECP under clause (A)(v) of the ECP definition if it does not qualify as an ECP under clause (A)(iv) of the ECP definition set forth in CFTC Regulation § 1.3(m)(6). See, e.g., meeting with SIFMA—AMG on August 2, 2011. The look-through provision is limited to determining ECP status under clause (A)(iv) or clause (A)(v) of the ECP definition for purposes of retail forex transactions entered into by Forex Pools. The look-through provision does not reference or implicate ECP status for purposes of CEA section 2(e) (which prohibits non-ECPs from entering into swaps other than on or subject to the rules of a DCM), Securities Act section 5(d) (which prohibits a person from offering to sell, offering to buy or purchase, or selling a security-based swap to a person that is a non-ECP unless a registration statement under the Securities Act is in effect with respect to that security-based swap), or Exchange Act section 6(l) (which prohibits a person from effecting a transaction in a security-based swap with or for a person that is a non-ECP unless the transaction is effected on a national securities exchange registered with the SEC). The prohibition in CFTC Regulation § 1.3(m)(6) on a commodity pool qualifying as an ECP under clause (A)(v) of the ECP definition if it does not qualify as an ECP under clause (A)(iv) of the ECP definition does not involve any look-through. Rather, in contrast with CFTC Regulation § 1.3(m)(5), CFTC Regulation § 1.3(m)(6) applies for purposes of all agreements, contracts and transactions for which ECP status is relevant. See part III.C, infra, for a discussion of the prohibition on a commodity pool qualifying as an ECP under clause (A)(v) of the ECP definition if it does not qualify as an ECP under clause (A)(iv) of the ECP definition. VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 2(c)(2)(E)(ii)(I) significantly limits the universe of possible retail forex transaction counterparties.641 At the time the Commissions issued the Proposing Release and throughout the comment period, the CFTC was the only Federal regulatory agency that had issued final rules governing retail forex transactions by its regulated persons and entities.642 Since then, though, both the OCC and the FDIC finalized (effective July 15, 2011) rules governing retail forex transactions by Enumerated Counterparties regulated by those agencies.643 In addition, the SEC has issued interim temporary final rules (also effective July 15, 2011) governing retail forex transactions by registered broker-dealers.644 Also, the Federal Reserve Board proposed rules to govern retail forex transactions by its regulated banks on August 3, 2011.645 As a result of these regulatory actions, Forex Pools that are not ECPs due to the lookthrough provision and who are subject to a counterparty limitation 646 may enter into retail forex transactions with any Enumerated Counterparty but for those regulated by the Federal Reserve Board.647 The Commissions believe that the final rules reasonably address commenters’ concerns. In this regard, the Commissions note that in applying the look-through provision, the Commissions will consider the indirect 641 See also part III.G, infra, discussing CFTC Regulation § 1.3(m)(8), one effect of which is to eliminate the retail forex transaction counterparty restriction for Forex Pools qualifying as ECPs. 642 See generally Part 5 of the CFTC’s regulations, 17 CFR 5, and CFTC, Regulation of Off-Exchange Retail Foreign Exchange Transactions and Intermediaries, 75 FR 55410 (Sept. 10, 2010). See also CFTC, Retail Foreign Exchange Transactions; Conforming Changes to Existing Regulations in Response to the Dodd-Frank Wall Street Reform and Consumer Protection Act 76 FR 56103 (Sept. 12, 2011). 643 See FDIC, Retail Foreign Exchange Transactions, 76 FR 40779 (July 12, 2011) (final FDIC retail forex rules); OCC, Retail Foreign Exchange Transactions, 76 FR 41375 (July 14, 2011) (final OCC retail forex rules); see also OCC, Retail Foreign Exchange Transactions, 76 FR 56094 (Sept. 12, 2011) (interim final OCC retail forex rules for federal savings associations and their operating subsidiaries). 644 See SEC, Retail Foreign Exchange Transactions, 76 FR 41676 (July 15, 2011). In the release accompanying the rules, the SEC requested comment on broker-dealers’ involvement in retail forex transactions to inform the SEC in developing permanent rules to regulate these activities. See id. at 46181–83. 645 See Board, Retail Foreign Exchange Transactions (Regulation NN), 76 FR 46652 (Aug. 3, 2011) (proposed Board rules for retail forex transactions). 646 See part III.B.1, supra, discussing the applicability of the counterparty limitation. 647 Of course, upon the Board’s finalization of its retail forex rules, U.S. financial institutions regulated by the Board also will be acceptable counterparties. PO 00000 Frm 00057 Fmt 4701 Sfmt 4700 30651 participants in a transaction-level Forex Pool if such Forex Pool, a commodity pool holding a direct or indirect (through one or more intermediate tiers of pools) interest in such Forex Pool, or any commodity pool in which such Forex Pool holds a direct or indirect interest has been structured to evade Subtitle A of Title VII of the Dodd-Frank Act by permitting persons that are not ECPs to participate in agreements, contracts, or transactions described in section 2(c)(2)(B)(i) or section 2(c)(2)(C)(i) of the Commodity Exchange Act. One example of a scheme to evade would be if a commodity pool tier has been included in the structure of the Forex Pool primarily to provide nonECP participants exposure to retail forex transactions rather than to achieve any other legitimate business purpose.648 One example of a ‘‘legitimate business purpose’’ that would not trigger the look-through provision is a FOF operated primarily for the purpose of investing in underlying funds and using retail forex transactions solely to hedge the currency risk posed by an unfavorable change in the exchange rate between the currency in which underlying funds accept investments and the currency in which FOF investors pay for their investments in the FOF.649 Similarly, the Commissions would not consider a commodity pool using retail forex transactions solely for bona fide hedging purposes 650 with 648 Feeder funds are usually added to commodity pool structures for purposes such as tax efficiency. A master-feeder structure ‘‘[permits] U.S. taxable investors to take advantage of investing in a U.S. limited partnership feeder fund, which[,] through certain elections made at the time the structure is established, is tax effective for such U.S. taxable investors’’ and ‘‘[permits] [n]on-U.S. and U.S. taxexempt investors [to] subscribe via a separate offshore feeder company so as to avoid coming directly within the U.S. tax regulatory net applicable to U.S. taxable investors.’’ Effie Vasilopoulos & Katherine Abrat, The Benefits of Master-Feeder Fund Structures for Asian-based Hedge Fund Managers, Hedge Fund Monthly (April 2004), available at https://www.eurekahedge.com/ news/04apr_archive_Sidley_master_feeder.asp. Other benefits can include efficiencies gained by the use of only a single trading entity, avoiding the need to split trade tickets, eliminating the need to duplicate agreements with counterparties and greater economies of scale in administering the fund. Id. 649 Sidley notes that the typical FOF operates in this manner. See generally letter from Sidley for a more detailed discussion of these transactions. 650 In this context, bona fide hedging purposes means bona fide hedging purposes within the meaning and intent of CFTC Regulation § 1.3(z)(1), except that the requirement therein that the transaction or position be on a DCM or SEF that is a trading facility will not be a factor in the bona fide hedging purpose analysis. Compare CFTC Regulation § 4.5(c)(2)(iii)(A) (relying in part on the bona fide hedging concepts in CFTC Regulations §§ 1.3(z)(1) and 151.5 to provide relief from the CPO definition). See also CPO/CTA Compliance Release E:\FR\FM\23MYR2.SGM Continued 23MYR2 30652 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES2 respect to currency risk as being structured to avoid the look-through provision.651 The ‘‘participate in agreements, contracts, or transactions described in section 2(c)(2)(B)(i) or section 2(c)(2)(C)(i) of the Act’’ language of CFTC Regulation § 1.3(m)(5)(ii) is aimed at exposure to retail forex transactions as an asset class, investment strategy, or an end in itself, not at exposure to retail forex transactions solely designed for bona fide hedging purposes with respect to foreign exchange exposure arising in the course of a commodity pool’s business.652 In applying the limited look-through provision in the final rule, the Commissions would consider a Forex Pool’s direct participants to include not only persons that initially hold interests in the level of the commodity pool structure that enters into retail forex transactions, but also persons that can acquire those interests or that subsequently hold those interests. As applied to exchange-traded products (‘‘ETPs’’) that are Forex Pools, any person that acquires an interest in the ETP Forex Pool in secondary market transactions would be a direct participant. ETPs typically issue shares only in the large aggregations or blocks (such as 50,000 ETP shares) called ‘‘Creation Units.’’ An authorized purchaser, usually an investment bank, broker dealer or large institutional investor, may purchase a Creation Unit. After purchasing a Creation Unit, the authorized purchaser may hold the Creation Unit, or sell some or all of the ETP shares in the Creation Unit to investors in secondary market transactions by splitting up the Creation Unit and selling the individual ETP shares on a national securities exchange or in off-exchange transactions. The ability to break up the Creation Unit into ETP shares permits other investors, at 11256–11257 (discussing and declining to adopt commenters’ request to expand the definition of bona fide hedging to include risk management). Where a Forex Pool’s counterparty, but not the Forex Pool, is hedging its risks, it is not the case that the Forex Pool is entering the retail forex transaction solely to hedge its own risk. 651 The examples mentioned in text should not be construed to mean that any other fact pattern does or does not constitute evasion, which must be determined on a case-by-case basis. 652 Based on the same reasoning, the Commissions do not believe it was the intent of the look-through proviso in CEA section 1a(18)(A)(iv) to subject to a retail forex regime a single level commodity pool engaging in retail forex transactions solely for bona fide hedging purposes with respect to foreign exchange exposure arising in the course of a commodity pool’s operations. Consequently, the Commissions will interpret such a commodity pool as an ECP if it otherwise satisfies the terms of CEA section 1a(18)(A)(iv) even if such a pool has one or more non-ECP participants. VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 such as non-ECPs, to purchase the individual ETP shares in secondary market transactions. All participants in an ETP Forex Pool must be ECPs when they purchase or otherwise acquire an interest in the ETP Forex Pool. In addition, an ETP Forex Pool will not be able to verify whether the persons that acquire interests in the ETP Forex Pool in exchange transactions are ECPs. The ability of non-ECPs to acquire interests in an ETP Forex Pool and the inability of the ETP Forex Pool to verify ECP status with respect to exchange transactions create a presumption that ETP Forex Pools are not ECPs and, therefore, are Retail Forex Pools. This presumption would not apply in the case of a Forex Pool that is structured in a manner that does not involve exchange trading and in which the Forex Pool would be able to verify the ECP status of its participants. One commenter suggested that the Commissions allow commodity pools and their counterparties to rely on participant ECP representations provided in connection with an initial investment.653 The Commissions note that the obligation to determine that the parties to retail forex transactions are ECPs is imposed on the CPOs of Forex Pools and the counterparties looking to enter into retail forex transactions with Forex Pools. In making that determination, the Commissions expect CPOs and retail forex transaction counterparties to Forex Pools to be guided by the principles for verifying the ECP status of a swap dealer’s or major swap participant’s counterparty discussed in the CFTC’s recently adopted external business conduct standards, including the safe harbor.654 Thus, solely for purposes of CEA section 1a(18)(A)(iv) and CFTC Regulation § 1.3(m)(5), the Commissions will permit CPOs and retail forex transaction counterparties to rely on written representations from, as applicable, pool participants or potential pool participants that the person making the representation is an ECP (or is a nonU.S. person; as discussed below in this section III.B.4., solely for purposes of CEA section 1a(18)(A)(iv) and CFTC Regulation § 1.3(m)(5), the Commissions will consider Forex Pools whose participants are limited solely to nonU.S. persons (and which are operated by CPOs located outside of the U.S., its territories or possessions) to be ECPs), or from Forex Pools that the Forex Pool is 653 See letter from Sidley. CFTC, Business Conduct Standards for Swap Dealers and Major Swap Participants With Counterparties; Final Rule, 77 FR 9733 (Feb. 17, 2012). 654 See PO 00000 Frm 00058 Fmt 4701 Sfmt 4700 an ECP, provided that the CPO or retail forex transaction counterparty has a reasonable basis to so rely, just as swap dealers and major swap participants are permitted to do pursuant to the safe harbor in new CFTC Regulation § 23.430(d), 17 CFR 23.430(d). Solely for purposes of CEA section 1a(18)(A)(iv) and CFTC Regulation § 1.3(m)(5), a CPO or retail forex transaction counterparty will have a reasonable basis to rely on such written representations if the person making the representation specifies therein the provision(s) of, as applicable, section 1a(18) of the CEA or CFTC Regulation § 4.7(a)(1)(iv) pursuant to which the person qualifies as an ECP or a non-U.S. person, respectively, unless it has information that would cause a reasonable person to question the accuracy of the representation.655 Solely for purposes of CEA section 1a(18)(A)(iv) and CFTC Regulation § 1.3(m)(5), persons representing that they qualify as non-U.S. persons based on CFTC Regulation § 4.7(a)(1)(iv)(D) must represent that they are relying on such provision as modified as discussed below (i.e., without the 10% carve-out for U.S. persons). Furthermore, the CFTC recognizes that, despite a counterparty’s reasonable good faith efforts to ensure that Forex Pools do not in fact have any U.S. participants, a situation may arise where a Forex Pool does turn out to have U.S. participants. If a counterparty has reasonable policies and procedures in place to verify the ECP status of Forex Pool counterparties and, notwithstanding such reasonable good faith efforts and following such policies and procedures, enters into retail forex transactions with such a Forex Pool in good faith and it was subsequently determined that U.S. participants represented no more than a de minimis number of participants or amount of ownership of the Forex Pool, absent other material factors, the CFTC would not expect to bring an enforcement action against the counterparty for entering into a retail forex transaction in contravention of the requirements of the retail forex regime. For purposes of this analysis only, and without this being viewed as a de minimis threshold for purposes of this rule or otherwise, the CFTC would consider as de minimis, ownership of units of participation of a Forex Pool held by U.S. participants of less than 10% of the beneficial interest in the Forex Pool. The fact that, absent other material factors, the CFTC would not expect to bring an enforcement action against a forex transaction counterparty in such case does not 655 Cf. E:\FR\FM\23MYR2.SGM CFTC Regulation §§ 23.430(d), 23.402(d). 23MYR2 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES2 relieve any obligation on the part of the CPO of the Forex Pool either to register as a CPO, claim the 4.13(a)(3) exemption therefrom or redeem the U.S. participants as described above. One commenter suggested that the Commissions allow commodity pools and their counterparties to rely on participant ECP representations provided in connection with an initial investment.656 The Commissions believe that if participants make ECP representations in connection with an initial investment in a Forex Pool, absent an additional investment (which would require a new ECP verification, other than in the case of automatically reinvested distributions), the subsequent loss of a participant’s ECP status would not cause the Forex Pool to lose its own ECP status for purposes of retail forex transactions so long as the operating agreement of the Forex Pool or the subscription or other agreement pursuant to which the participant invested in the Forex Pool requires the participant to advise the CPO of the Forex Pool promptly of a loss of the participant’s ECP status. In the event of the loss of ECP status of a participant, the CPO would be required to redeem the non-ECP from the Forex Pool at the first opportunity following notification to avoid the Forex Pool losing its ECP status for subsequent retail forex transactions. The Commissions are mindful that several commenters indicated that CPOs do not customarily include a question or representation as to ECP status in subscription agreements for pool participants, and stated that requiring CPOs to qualify or redeem existing participants due to the new lookthrough provision would be expensive, burdensome and disruptive.657 In this regard, the Commissions note that the look-through requirement for commodity pools was imposed by statute. As a result of the Commissions adopting the limited look-through in the final rule (as compared to the proposed indefinite look-through), however, the number of commodity pools subject to the look-through provision should be dramatically reduced, reducing the number of pools subject to regulation of their retail forex transactions, and the associated costs, accordingly.658 656 See letter from Sidley. The Commissions note that the obligation to determine that the parties to retail forex transactions are ECPs is imposed on the CPOs of Forex Pools and the persons looking to engage in retail forex transactions with Forex Pools. 657 See, e.g., letter from SIFMA AMG IV. 658 The adoption of CFTC Regulation § 1.3(m)(8), discussed in part III.G, infra, also should reduce the number of pools subject to regulation of their retail forex transactions, and the associated costs, accordingly. VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 Also, in response to commenter concerns that the look-through provision would be applied to entities other than commodity pools (e.g., operating companies),659 the Commissions revised the text of CFTC Regulation § 1.3(m)(5)(i) to reflect their intent to apply the look-through provision solely to commodity pools qualifying as ECPs, if at all, under clause (A)(iv) and clause (A)(v) of the ECP definition.660 This is consistent with the statutory text, which is limited to looking through commodity pools under clause (A)(iv) of the ECP definition, and the intent behind the look-through provision, as it relates to clause (A)(v) thereof. Commenters also stated that Retail Forex Pools will no longer be able to enter into retail forex transactions with foreign financial institutions.661 As discussed in section III.B.1. above, however, this is not the case with respect to retail forex transactions described in CEA section 2(c)(2)(C)(i)(I)(bb). With respect to retail forex transactions described in CEA section 2(c)(2)(B)i)(I), this is a consequence of the express statutory text of the Dodd-Frank Act, which removed non-U.S. financial institutions from the list of Enumerated Counterparties eligible to enter into retail forex transactions with nonECPs.662 Commenters further suggested generally that the Commissions create additional categories of ECPs to address the Commissions’ concerns regarding the potential loophole of Retail Forex Pools that are unable to qualify as ECPs due to the new look-through provision in clause (A)(iv) of the ECP definition qualifying as an ECP under clause (A)(v) of the ECP definition. While one 659 See, e.g., letter from Sandalwood Securities, Inc. (expressing concern that ‘‘the Proposed Rule extends Dodd-Frank’s limited look-through provision to all sub-sections of section la(12)’’). 660 Thus, for example, investment companies qualifying under clause (A)(iii) of the ECP definition and employee benefit plans qualifying under clause (A)(vi) of the ECP definition (and, as stated in each clause, ‘‘a foreign person performing a similar role or function subject as such to foreign regulation’’) would not be covered by the lookthrough provision. To the extent that other entities would otherwise be captured by the look-through as proposed (such as collective investment trusts whose investors are ERISA plans not excluded from the commodity pool definition by CFTC Regulation § 4.5(a)(4) and which qualify as ECPs under clause (A)(v) of the ECP definition), the Commissions believe that focusing on the level of the Forex Pool entering into the retail forex transactions, and such Forex Pool’s direct participants (absent evasion), should alleviate such concerns. 661 Cf. letters from Sidley and Millburn Ridgefield Corporation (‘‘Millburn’’). 662 See section 742(c) of the Dodd-Frank Act, amending CEA section 2(c)(2)(B)(i)(II)(aa), 7 U.S.C. 2(c)(2)(B)(i)(II)(aa). PO 00000 Frm 00059 Fmt 4701 Sfmt 4700 30653 commenter proposed adopting a new rule clarifying that Forex Pools comprised entirely of QEPs and operated by persons subject to regulation under the CEA are ECPs,663 Congress chose to look to ECP status of Forex Pool participants, not QEP status, as the basis for determining whether such Forex Pools are ECPs. Therefore, it is more appropriate to rely on Retail Forex Pool participants’ ECP status than to rely on QEP status to establish ECP status. One commenter stated a concern regarding what it characterized as the lack of clarity surrounding the extraterritoriality impact of the proposed ECP rules.664 The Commissions recognize the potential consequences of the broad look-through language in CEA section 1a(18)(A)(iv) 665 and are providing guidance as to the application of the look-through to Forex Pools whose participants are limited solely to nonU.S. persons and which are operated by CPOs located outside the United States, its territories or possessions. As discussed below, while foreign entities are not necessarily immune from U.S. jurisdiction for commercial activities undertaken with U.S. counterparties or in U.S. markets, canons of statutory construction ‘‘assume that legislators take account of the legitimate sovereign interests of other nations when they write American laws,’’ 666 particularly when limited U.S. interests are at stake.667 663 See letter from Sidley. This commenter also suggested deeming non-U.S. persons to be ECPs by definition. The Commissions have addressed this comment below in this section in response to the comment regarding the extraterritorial impact of the proposed ECP rules. 664 See letter from AIMA I. 665 7 U.S.C. 1a(18)(A)(iv). 666 See F. Hoffman-LaRoche, Ltd. v. Empagran S.A., 542 U.S. 155, 164 (2004), citing Murray v. Schooner Charming Betsy, 2 Cranch 64, 118, 2 L.Ed. 208 (1804) (‘‘[A]n act of congress ought never to be construed to violate the law of nations if any other possible construction remains’’); Hartford Fire Insurance Co. v. California, 509 U.S. 764 (1993) (Scalia, J., dissenting). See also Restatement (Third) Foreign Relations Law § 403 (scope of a statutory grant of authority must be construed in the context of international law and comity including, as appropriate, the extent to which regulation is consistent with the traditions of the international system). 667 See also CFTC, Exemption From Registration for Certain Foreign Persons, 72 FR 63976 (Nov. 14, 2007) (where the CFTC stated that: Given this agency’s limited resources, it is appropriate at this time to focus [the 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) E:\FR\FM\23MYR2.SGM Continued 23MYR2 30654 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES2 The Commissions do not believe that Congress intended for Forex Pools with no U.S. participants and operated by CPOs located outside the United States, its territories or possessions to be subject to a U.S. retail forex regime and, therefore, will consider Forex Pools whose participants are limited solely to non-U.S. persons and which are operated by CPOs located outside the United States, its territories or possessions to be ECPs for purposes of CFTC Regulation § 1.3(m)(5). For this purpose, a Forex Pool participant is a non-U.S. person if it satisfies the definition of ‘‘Non-United States person’’ in CFTC Regulation 4.7(a)(1)(iv); provided, however, that, if a participant is an entity organized principally for passive investment, such as a pool, investment company or other similar entity, such entity will be considered to be a Non-United States person under paragraph (D) of CFTC Regulation 4.7(a)(1)(iv) for purposes of CFTC Regulation § 1.3(m)(5) solely if all units of participation in such passive investment vehicle participant are held by Non-United States persons.668 A broader interpretation or relief is not appropriate at this time.669 (citing CFTC, Introducing Brokers and Associated Persons of Introducing Brokers, Commodity Trading Advisors and Commodity Pool Operators; registration and Other Regulatory Requirements, 48 FR 35248, 35261 (Aug. 3, 1983)). 668 CFTC Regulation § 4.7(a)(i)(iv)(D) lists the following as one category of non-United States person: An entity organized principally for passive investment such as a pool, investment company or other similar entity; Provided, That units of participation in the entity held by persons who do not qualify as Non-United States persons or otherwise as qualified eligible persons represent in the aggregate less than 10% of the beneficial interest in the entity, and that such entity was not formed principally for the purpose of facilitating investment by persons who do not qualify as NonUnited States persons in a pool with respect to which the operator is exempt from certain requirements of part 4 of the Commission’s regulations by virtue of its participants being NonUnited States persons. It would be inappropriate to disregard the presence of U.S. persons constituting as much as 10% of such entities’ participants in the context of this interpretive guidance. As discussed elsewhere herein, however, entities described in CEA section 1a(18)(A)(iii) or (vi), 7 U.S.C. 1a(18)(A)(iii) or (vi), are not subject to the look-through and are ECPs irrespective of the ECP status of their participants. 669 Cf. CPO/CTA Compliance Release at 11264 (stating that ‘‘it is prudent to withhold consideration of a foreign advisor exemption until the [CFTC] has received data regarding such firms on Forms CPO–PQR and/or CTA–PR * * * to enable the [CFTC] to better assess [which] firms * * * may be appropriate to include within the exemption, should the [CFTC] decide to adopt one’’). VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 C. ECP Status for Commodity Pools Under Clause (A)(v) vs. Under Clause (A)(iv) of the ECP Definition 1. Proposed Approach The Commissions stated in the Proposing Release that they believe ‘‘some commodity pools unable to satisfy the total asset or regulated status components of clause (A)(iv) of the ECP definition may rely on clause (A)(v) to qualify as ECPs instead.’’ 670 The Commissions further stated in the Proposing Release that ‘‘a commodity pool that cannot satisfy the monetary and regulatory status conditions prescribed in clause (A)(iv) should not qualify as an ECP in reliance on clause (A)(v) of the ECP definition.’’ 671 Based on those views, the Commissions proposed to further define the term ‘‘eligible contract participant’’ to prevent such a commodity pool from qualifying as an ECP pursuant to clause (A)(v) of the ECP definition. This proposal applied to all commodity pools, not just Forex Pools engaged in retail forex transactions. 2. Commenters’ Views Two commenters argued that, had Congress wished to prevent commodity pools from relying on the general ECP provision for business entities in clause (A)(v), it could have expressly excluded commodity pools from clause (A)(v).672 Another commenter attempted to illustrate that clause (A)(v) of the ECP definition is an independent basis for qualifying as an ECP by distinguishing clause (A)(v) from clause (A)(iv).673 One commenter expressed the view that it is unclear whether ‘‘subject to regulation under this Act’’ in CEA section 1a(18)(A)(iv)(II) 674 means a registered CPO or something else (e.g., a person excluded from the definition of a CPO, a CPO exempt from registration conditioned in part upon making a filing to claim such relief).675 670 Proposing Release, 75 FR at 80185. 671 Id. 672 See letters from Sidley and Skadden. letter from Akin Gump. Akin Gump noted that ‘‘[a]s opposed to [clause] (A)(iv), [clause] (A)(v) includes as one means of satisfying its criteria that the entity be entering into a contract for hedging purposes.’’ While correct, clause (A)(v) also includes as another means of satisfying its criteria that an entity enter into agreements, contracts or transactions in connection with the conduct of the entity’s business, which would be a much lower standard. 674 7 U.S.C. 1a(18)(A)(iv)(II). 675 See letter from SIFMA AMG IV. CEA Section 1a(18)(A)(iv)(II) refers to a commodity pool that ‘‘is formed and operated by a person subject to regulation under this Act or a foreign person performing a similar role or function subject as such to foreign regulation (regardless of whether each investor in the commodity pool or the foreign 673 See PO 00000 Frm 00060 Fmt 4701 Sfmt 4700 3. Final Rule The Commissions are adopting CFTC Regulation § 1.3(m)(6) as proposed, which states that ‘‘[a] commodity pool that does not have total assets exceeding $5,000,000 or that is not operated by a person described in subclause (A)(iv)(II) of section 1a(18) of the Act is not an eligible contract participant pursuant to clause (A)(v) of such Section.’’ 676 As noted, the Commissions are concerned that clause (A)(v) of the ECP definition may undermine the protections that specifically apply to commodity pool participants pursuant to the limitations on ECP status for commodity pools set forth in clause (A)(iv) of the ECP definition. Allowing a commodity pool that cannot satisfy the monetary and regulatory status conditions prescribed for commodity pools in clause (A)(iv) to qualify as an ECP under clause (A)(v) would undermine these protections. The Commissions acknowledge the comments stating that clause (A)(v) of the ECP definition is an independent basis for qualifying as an ECP and that Congress did not explicitly provide that a commodity pool that fails to qualify as an ECP under clause (A)(iv) cannot do so under clause (A)(v). However, when specifically legislating for commodity pools, Congress determined that total assets of $5 million and operation by a person subject to regulation under the CEA (or a foreign equivalent) are necessary to assure appropriate protection for non-ECP participants in a commodity pool. Furthermore, the commenters’ view that Congress’s use of the disjunctive term ‘‘or’’ between clauses (A)(x) and (A)(xi) of the ECP definition means that an entity can rely on clause (A)(v) of the ECP definition, notwithstanding that such entity cannot satisfy a prong more specific to it, would largely render superfluous each clause under subparagraph (A) of the ECP definition other than clause (v) and clause (xi) (for individuals).677 As such, the Commissions believe that the final rule adopted in this release is consistent with Congressional intent. The Commissions also are mindful that one commenter expressed a concern that the Commissions’ reliance on clause (A)(iv) of the ECP definition person is itself an eligible contract participant) provided, however, that for purposes of section 2(c)(2)(B)(vi) and section 2(c)(2)(C)(vii), the term ‘eligible contract participant’ shall not include a commodity pool in which any participant is not otherwise an eligible contract participant.’’ 676 The Commissions have made certain technical corrections to proposed CFTC Regulation § 1.3(m)(6)(i) as concerns its citations to the CEA. 677 Interpreting statutory language as surplusage is disfavored. Effect should be given to every clause and word of a statute. See Negonsott v. Samuels, 507 U.S. 99 (1993). E:\FR\FM\23MYR2.SGM 23MYR2 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations might cause commodity pools to lose their ability to claim ECP status under clauses of the ECP definition, other than clause (v), and asked the Commissions to clarify the meaning of the phrase ‘‘formed and operated by a person subject to regulation under the [CEA]’’ in clause (A)(iv).678 In response, the Commissions note that a commodity pool that does not qualify for ECP status under clause (A)(iv) of the ECP definition may still qualify as an ECP under either of the two clauses of the ECP definition other than clause (A)(v) applicable to subcategories of commodity pools. Thus, registered investment companies and foreign equivalents may qualify as ECPs under clause (A)(iii) of the ECP definition, and ERISA plans and the other entities described in clause (A)(vi) of the ECP definition may qualify as ECPs thereunder. The Commissions’ actions in this release do not change that result. Also, with regard to that commenter’s request for clarification, for purposes of CFTC Regulation § 1.3(m)(6), the Commissions interpret the language ‘‘subject to regulation under the [CEA]’’ in clause (A)(iv) of the ECP definition as requiring lawful operation of the commodity pool by a person excluded from the CPO definition, a registered CPO, or a person properly exempt from CPO registration.679 Congress did not limit ECP status under clause (A)(iv) to commodity pools operated by persons registered as CPOs; it used the more encompassing phrase ‘‘subject to regulation’’ under the CEA.680 On the other hand, to construe that phrase to include any person operating a commodity pool would render the 678 See letter from SIFMA AMG IV. these purposes, the Commissions would take the same approach to insignificant deviations from exemptive filings as the CFTC does in CFTC Regulation § 4.7(e). 680 If the Commissions interpreted the ‘‘subject to regulation under this Act’’ language in CEA section 1a(18)(A)(iv)(II) to mean that the commodity pool operator must be registered as a CPO and limited CPOs to claiming ECP status solely under clause (iv) of the ECP definition, then the operators of all commodity pools trading swaps would have to register as CPOs to be ECPs. While more CPOs will be registering with the CFTC because the CFTC has withdrawn CFTC Regulation § 4.13(a)(4), see CPO/CTA Compliance Release, and the Dodd-Frank Act has expanded the scope of the transactions within the CFTC’s jurisdiction, thus reducing the number of CPOs who can rely on the 5 percent threshold in CFTC Regulation § 4.13(a)(3) and thus claim the CPO registration exemption, the CFTC did not withdraw 4.13(a)(3), so some CPOs will be able to continue to rely on it. Also, not all persons operating commodity pools will be CPOs. See CFTC Regulation § 4.5 (exclusion from the definition of the term ‘‘commodity pool operator’’). The Commissions do not believe Congress intended commodity pool ECP status to require CPO registration by the commodity pools’ operators in all cases. mstockstill on DSK4VPTVN1PROD with RULES2 679 For VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 phrase superfluous.681 The commenters’ view would enable a CPO that fails to register as required to claim that the commodity pool it operates is an ECP under clause (A)(v) and thus is not subject to regulation of its retail forex transactions. The Commissions believe that construing the phrase ‘‘formed and operated by a person subject to regulation under the [CEA]’’ to refer to a person excluded from the CPO definition, registered as a CPO or properly exempt from CPO registration appropriately reflects Congressional intent. D. Dealers and Major Participants as ECPs 1. Proposed Approach The Commissions proposed to add swap dealers, security-based swap dealers, major swap participants and major security-based swap participants to the ECP definition on the basis that such persons ‘‘are likely to be among the most active and largest users of swaps and security-based swaps.’’ 682 2. Commenters’ Views Several commenters supported the proposed addition of swap dealers, security-based swap dealers, major swap participants, and major security-based swap participants to the ECP definition.683 No commenter opposed this aspect of the proposal. 3. Final Rule The Commissions are adopting the new ECP categories as proposed. The rules as adopted clarify that the terms ‘‘swap dealer,’’ ‘‘security-based swap dealer,’’ ‘‘major swap participant,’’ and ‘‘major security-based swap participant’’ have their respective meanings as defined in the CEA and the Exchange Act and as otherwise further defined by the Commissions.684 E. Government Entities: Incorrect CrossReference 1. Description of the Issue Clause (A)(vii) of the ECP definition conditions the ECP status of governmental entities, and their 681 If the mere act of forming or operating a commodity pool means that a person is ‘‘subject to regulation’’ under the CEA, then the ‘‘subject to regulation’’ language would not be needed. 682 Proposing Release, 75 FR at 80184. 683 One representative commenter stated that ‘‘the proposed definition in CFTC Proposed CFTC Regulation § 1.3(m)(1)–(4) fills important gaps left by Congress by ensuring that major swap participants, major security-based swap participants, swap dealers and security-based swap dealers are treated as ECPs.’’ See letter from Sidley. 684 These new ECP categories are set forth in new CFTC Regulation § 1.3(m)(1)–(4). PO 00000 Frm 00061 Fmt 4701 Sfmt 4700 30655 political subdivisions, agencies, instrumentalities and departments (collectively, ‘‘government entities’’), in part, on the identity of their counterparties. Specifically, a government entity may qualify as an ECP under the provision in clause (A)(vii) that requires the entity’s counterparty to be ‘‘listed in any of subclauses (I) through (VI) of section 2(c)(2)(B)(ii)’’ of the CEA.685 However, subclauses (I) through (III) of CEA section 2(c)(2)(B)(ii) 686 are unrelated to counterparty types (rather, they describe the dollar amounts that apply for purposes of retail forex transactions under CEA section 2(c)(2)(B)), and subclauses (IV) through (VI) of CEA section 2(c)(2)(B)(ii) no longer exist in the statute. Read literally, then, this provision of the ECP definition is inherently a nullity and, thus, cannot enable government entities to qualify as ECPs.687 2. Commenters’ Views One commenter traced the history of the relevant provisions and concluded that the reference to subclauses (I) through (VII) of CEA section 2(c)(2)(B)(ii) in clause (A)(vii) of the ECP definition is erroneous.688 This commenter pointed instead to CEA section 2(c)(2)(B)(i)(II) 689 as the reference that should be included in clause (A)(vii) of the ECP definition because it lists the entities that are eligible to serve as counterparties in retail forex transactions. This commenter noted that the crossreference in clause (A)(vii) of the ECP definition was correct when it was added to the CEA as part of the CFMA, but that it became incorrect in 2008 when an unrelated amendment to the CEA was enacted 690 that changed the numbering of the CEA’s provisions governing retail forex transactions but that failed to make a conforming amendment to clause (A)(vii) of the ECP definition. As a result of this 2008 amendment to the CEA, the list of entities that formerly appeared in subclauses (I) through (VI) of CEA sections 2(c)(2)(B)(ii) now appear in items (aa) through (ff) of CEA section 685 CEA section 1a(18)(A)(vii)(cc), 7 U.S.C. 1a(18)(A)(vii)(cc). 686 7 U.S.C. 2(c)(2)(B)(ii)(I)–(III). 687 A government entity, though, can still qualify as an ECP under the other provisions of clause (A)(vii) if it is a certain type of ‘‘eligible commercial entity’’ as defined in CEA section 1a(17), 7 U.S.C. 1a(17), or owns and invests on a discretionary basis $50 million or more in investments. 688 See letter from Wells Fargo dated June 3, 2011 (‘‘Wells Fargo I’’). 689 7 U.S.C. 2(c)(2)(B)(i)(II). 690 See section 13101 of the CRA. E:\FR\FM\23MYR2.SGM 23MYR2 30656 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations 2(c)(2)(B)(i)(II) instead.691 This commenter requested that ‘‘the Commissions correct this clearly erroneous reference in the definition of ECP through interpretive guidance, rulemaking or Commission order.’’ 692 3. Interpretive Guidance Clause (A)(vii) of the ECP definition contains an erroneous cross-reference to subclauses (I) through (VI) of CEA section 2(c)(2)(B)(ii). Accordingly, the Commissions are issuing interpretive guidance by identifying the counterparties with which a governmental entity can enter into swaps to attain ECP status under the provision in clause (A)(vii) that requires the entity’s counterparty to be ‘‘listed in any of subclauses (I) through (VI) of section 2(c)(2)(B)(ii)’’ of the CEA. The Commissions consider a government entity covered by the counterparty limitation in clause (A)(vii) to be an ECP with respect to an agreement, contract, or transaction that is offered by, and entered into with, a person that is listed in items (aa) through (ff) of section 2(c)(2)(B)(i)(II) of the CEA. The limitation of ECP status ‘‘with respect to’’ a particular transaction is consistent with Congress’ determination that, for purposes of this provision of clause (A)(vii), governmental entities may derive their ECP status from the status of their counterparty. F. Qualification as an ECP With Respect to Swaps Used To Hedge or Mitigate Commercial Risk in Connection With the Conduct of an Entity’s Business 1. Proposing Release In the Proposing Release, the Commissions requested comment on whether any additional categories should be added to the definition of ECP, ‘‘such as the following categories suggested by commenters [on the ANPRM]: Commercial real estate developers; energy or agricultural cooperatives or their members; or firms using swaps as hedges pursuant to the terms of the CFTC’s Swap Policy Statement.’’ 693 As noted above, the ECP 691 7 U.S.C. 2(c)(2)(B)(i)(II)(aa)–(ff). letter from Wells Fargo I. 693 See Proposing Release, 75 FR at 80185. The reference to the ‘‘Swap Policy Statement’’ is to the CFTC’s Policy Statement Concerning Swap Transactions, 54 FR 30694 (July 21, 1989). The Swap Policy Statement ‘‘identifie[d] those swap transactions which [were] not * * * regulated as futures or commodity option transactions under the [CEA] or the related regulations.’’ 54 FR at 30694. One element of the Swap Policy Statement required that the swap be entered into in connection with each swap counterparty’s line of business. Id. at 30697. The Swap Policy Statement was applicable to cash-settled swaps only, with foreign exchange considered to be cash for this purpose. Id. at 30696. mstockstill on DSK4VPTVN1PROD with RULES2 692 See VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 definition is important because the Dodd-Frank Act amended the CEA to prohibit a person that is not an ECP from entering into swaps other than on or subject to the rules of a DCM.694 property developers,698 noting that such entities may not meet the ECP criteria. According to these commenters, these pass-through entities often are small and medium-sized businesses that enter into interest rate swaps with lending 2. Commenters’ Views financial institutions in reliance on the Several commenters supported the Swap Policy Statement.699 The addition of categories to the definition commenters explained that the loans of ECP because, these commenters said, usually are guaranteed by the principals not all current swap market participants of the entity entering into the swap, and are ECPs. Many of these commenters that the borrower would qualify as an said that non-ECPs have entered into ECP if structured as a single-level swaps in reliance on the Swap Policy corporate entity or sole Statement.695 Commenters highlighted, proprietorship.700 Commenters said that among other things, the importance of if these non-ECP entities were limited to the Swap Policy Statement to passswaps that are available on or subject to through entities used by farmers,696 the rules of a DCM, many regional bank operating companies 697 and commercial borrowers would lose the ability to use swaps, real estate companies would The Swap Policy Statement required that the terms have less flexibility in risk management, of the relevant swap be individually tailored, and smaller lenders would be at a meaning that the material terms of the swap had to competitive disadvantage.701 Another be negotiated, the parties had to make individualized credit determinations, and the swap commenter said that Dodd-Frank Act documentation could not be fully standardized. Id. provisions such as the end-user clearing at 30696–97. The Swap Policy Statement did not exception indicate that Congress apply to swaps subject to exchange-style offset, intended to preserve the availability of swaps that were cleared or subject to a margin system, or swaps marketed to the public. Id. As swaps used for business reasons rather noted in the Product Definitions Proposal, the than for investment or speculation.702 Dodd-Frank Act supersedes the Swap Policy To mitigate the impact of restricting Statement. 76 FR at 29829, n. 74. non-ECPs to swaps that are available on 694 The discussion in this section relates only to or subject to the rules of DCMs, some swaps and has no effect on the laws or regulations applicable to security-based swaps, security-based commenters said that an entity should swap agreements or mixed swaps. be able to qualify as an ECP based on As noted above, the Dodd-Frank Act also the financial qualifications of related amended the Exchange Act and the Securities Act entities, so long as various conditions to make it unlawful for a person to effect a proposed by the commenters are transaction in a security-based swap with or for a person that is not an ECP unless the transaction is satisfied. Some commenters said that an effected on a national securities exchange registered entity should be eligible to be an ECP with the SEC, and to make it unlawful for a person if its swap obligations are guaranteed by to offer to sell, offer to buy or purchase, or sell a an ECP,703 or if its controlling entity security-based swap to a person that is not an ECP unless a registration statement under the Securities qualifies as an ECP under clause (A)(v) Act is in effect with respect to that security-based of the statutory definition.704 Another swap. commenter suggested revisions to the 695 See letter from CDEU. One commenter estimated that swap transactions completed by regional and community banks in reliance on the Swap Policy Statement constituted 30–40% of all of such banks’ swaps, representing approximately 7,000 to 10,000 swaps per year and $15 to $20 billion in related loan principal. See letter from B&F I. Another commenter advised that it has entered 11 swaps, with a total notional of $26 million, since its formation in 2007, almost all of the counterparties to which ‘‘qualified for the swap under the [Swap Policy Statement] business purpose exemption.’’ See letter from Capstar. The CFTC stated when issuing the Swap Policy Statement that it ‘‘reflects the [CFTC]’s view that at this time most swap transactions, although possessing elements of futures or options contracts, are not appropriately regulated as such under the [CEA] and [CFTC] regulations.’’ Swap Policy Statement at 30694. 696 See, e.g., letter from Rabobank, N.A., Rabo ¨ AgriFinance, Inc. and Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A. (‘‘Rabobank, New York Branch’’) (relating that ‘‘[f]or a variety of estate planning and regulatory purposes, farmers commonly hold their ownership interests in land, buildings and farm equipment indirectly, through a network of legal entities’’). 697 See, e.g., letter from Fifth Third Bank and Union Bank, N.A. (advising that ‘‘[i]t is common for an operating business to organize a separate limited PO 00000 Frm 00062 Fmt 4701 Sfmt 4700 liability company (for tax and legal reasons) to acquire * * * assets * * * and to lease these assets to the operating company[, which] becomes the borrow[er] * * * for the loan used to acquire those assets’’ and that ‘‘[t]he limited liability company often does not maintain sufficient capital to qualify as an ECP’’). 698 See, e.g., letters from Capstar, Frost National Bank, FTN Financial Capital Markets, Midsize Banks and NAREIT. 699 See letters from BB&T I and B&F I. Commenters said that these businesses may intentionally maintain less than $1 million in equity primarily for tax and legal reasons. See letters from Capital One and Columbia State Bank (stating that over 65% of its borrowers are structured as limited liability companies or S corporations and intentionally maintain less than $1 million in equity at the entity entering into the swap). 700 See letter from Columbia State Bank. See also letter from BB&T I. 701 See letters from BB&T I, Capital One, Capstar, Columbia State Bank, Midsize Banks, NAREIT and Wells Fargo II. 702 See letter from FSR I. 703 See letters from BB&T I, Midsize Banks and Wells Fargo II. 704 See letters from CDEU and Regional Banks. E:\FR\FM\23MYR2.SGM 23MYR2 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations ECP definition that included looking to the ECP status or sophistication of the majority owner of an entity in determining if the entity itself is an ECP.705 Other commenters suggested other provisions to allow non-ECPs to enter into swaps other than on or subject to the rules of a DCM, so long as the non-ECP meets various conditions indicating that the swap is used in connection with its line of business.706 Other commenters argued for per se ECP qualification based on their status as certain types of persons, such as farmers707 or for ECP status based solely on a combination of a person’s status and the swap being related to a person’s line of business with no additional conditions.708 3. Final Rules and Interpretation In response to the commenters’ concerns, the CFTC is adopting CFTC Regulation § 1.3(m)(7) to permit an entity, in determining its net worth for purposes of subclause (A)(v)(III) of the ECP definition,709 to include the net worth of its owners, solely for purposes of determining its ECP status for swaps used to hedge or mitigate commercial risk, provided that all of its owners are themselves ECPs (disregarding shell companies). Under CFTC Regulation § 1.3(m)(7) as adopted, an entity seeking to qualify under subclause (A)(v)(III) of the ECP definition in order to enter into a swap used to hedge or mitigate commercial risk is permitted to count the net worth of its owners in determining its own net worth, so long as all its owners are ECPs. This regulation applies only to entities that 705 See letter from NAREIT. letters from the American Public Gas Association (‘‘APGA’’), Capital One and Gavilon dated December 23, 2010 (‘‘Gavilon I’’). 707 See meeting with Ron Eliason on December 16, 2010 (in which Mr. Eliason contended that farmers should be able to enter into swaps, even if they do not meet the income or asset tests in the current ECP definition and, therefore, would not be permitted to enter into swaps other than on or subject to the rules of a DCM). 708 See letter from APGA (requesting that ‘‘the [CFTC] exercise its authority under section la(18)(C) of the Act and determine that public natural gas distribution companies, including member-owned co-operatives, that enter into swaps in connection with their business of supplying customers with natural gas are ECPs within the meaning of section la(18) of the Act’’). 709 CEA section 1a(18)(A)(v)(III) provides that the term ‘‘eligible contract participant’’ includes ‘‘a corporation, partnership, proprietorship, organization, trust, or other entity * * * that (aa) has a net worth exceeding $1,000,000; and (bb) enters into an agreement, contract, or transaction in connection with the conduct of the entity’s business or to manage the risk associated with an asset or liability owned or incurred or reasonably likely to be owned or incurred by the entity in the conduct of the entity’s business.’’ 7 U.S.C. 1a(18)(A)(v)(III). mstockstill on DSK4VPTVN1PROD with RULES2 706 See VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 are otherwise eligible to rely on subclause (A)(v)(III) to determine ECP status; it does not expand or change the scope of application of that paragraph.710 CFTC Regulation § 1.3(m)(7) as adopted applies only when determining ECP status for swaps used to hedge or mitigate commercial risk. This new regulation does not apply when determining ECP status for other swaps or for security-based swaps, securitybased swap agreements, mixed swaps, or agreements, contracts or transactions that are not swaps (regardless of the purpose for which they are used). The Commissions have considered the comments indicating that, as currently structured, many businesses are owned by multiple legal entities and/or individuals, and the net worth of all the owners in the aggregate in some cases would satisfy the $1 million net worth requirement in subclause (A)(v)(III), even though the particular legal entity that enters into a swap does not have a net worth exceeding $1 million.711 While the Commissions recognize that the requirement, in subclause (A)(v)(III)(aa) of the ECP definition, that the entity relying on that paragraph have a net worth exceeding $1 million evidences Congress’ intent that only entities with this level of financial resources should be eligible for ECP status under this paragraph of the definition, the Commissions agree with commenters that application of this requirement in these circumstances would inappropriately limit the ability of business entities to use swaps to hedge or mitigate commercial risk. As a result, the Commissions are persuaded that in this limited situation, the entity should qualify as an ECP and be eligible to enter into swaps other than on or subject to the rules of a DCM, so long as the entity is using the swap to hedge or mitigate commercial risk and all of 30657 the owners of the entity are ECPs (other than shell companies). In response to those commenters requesting per se ECP status or the ability to qualify as an ECP based on a combination of status and engaging in swaps related to a line of business, without further restriction, the Commissions do not believe it is necessary or appropriate to further define the term ECP to such an extent in order to address most commenters’ concerns. The Commissions note that such approaches would undermine the prohibition in CEA section 2(e) 712 on non-ECPs executing swaps other than on or subject to the rules of a DCM. The Commissions also note that focusing solely on a link between a swap and a line of business would undermine the application of the ECP definition to swaps in that the various prongs of the ECP generally are linked to dollar thresholds, regulated status, or a combination of the two. The Commissions also note that it currently is considering a draft petition for relief pursuant to CEA section 4(c)(6)(C) 713 for certain entities described in Federal Power Act section 201(f),714 which may address the concerns of some commenters. Additionally, the Commissions are developing joint rules to further define the term ‘‘swap,’’ including the forward exclusion from the swap definition which, in turn, may result in certain transactions not being considered swaps. Further, the CFTC also is considering today a form of trade option exemption, which may further address commenters’ concerns. With respect to farmers, in response to the CFTC’s Commodity Options and Agricultural Swaps rulemaking proposal,715 commenters generally were of the view that the ECP definition is appropriate in its current form.716 While 712 7 U.S.C. 2(e). U.S.C. 6(c)(6)(C). 714 16 U.S.C. 824(f). 715 76 FR 6095 (Feb. 3, 2011). 716 See, e.g., letters from NCFC dated April 4, 2011 (‘‘NCFC II’’) (stating ‘‘[o]n behalf of the more than two million farmers and ranchers who belong to one or more farmer cooperative(s), the [NCFC] * * * [believes] the limitation on participation [in agricultural swaps] to [ECPs] outside of a DCM * * * should limit [agricultural swap] participation to appropriate persons’’ and that ‘‘[t]he ECP requirement with a threshold of $1 million in net worth to be allowed to use swaps and options, other than on a DCM, is appropriate for the products cooperatives offer their members’’), ; letter from NGFA dated April 4, 2011 (‘‘NGFA II’’) (stating that ‘‘[t]he use of agricultural swaps has been constrained relative to other swaps by virtue of being subject to CFTC regulatory requirements, while other swaps have been exempted from CFTC oversight,’’ ‘‘the Dodd-Frank Act * * * institutes a number of safeguards, including the limitation that 713 7 710 For example, if a commodity pool were precluded by CFTC Regulation § 1.3(m)(6) from relying on clause (A)(v) of the statutory definition to qualify as an ECP, such pool would not be able to rely on CFTC Regulation § 1.3(m)(7) to qualify as an ECP. 711 See, e.g., letters from B&F I (stating that ‘‘[i]f the customer does not * * * [itself] meet the ECP definition, then the transaction would have to be guaranteed by any entity or individual who is an owner * * * [who] meets the $10,000,000 total asset test of section 1(a)(18)(A)(v)(I) of the Act or the $1,000,000 net worth test of section 1(a)(18)(A)(v)(III) of the Act.’’), NAREIT (urging that the Commissions impute ECP status to non-ECP entities involved in specified real estate businesses to such entities whose ‘‘majority owner or controlling entity’’ is an ECP) and Midsize Banks (recommending that the ECP determination be made with respect to a non-ECP entity’s owners based on criteria including qualifying natural persons as ECPs based on a $1,000,000 net worth). PO 00000 Frm 00063 Fmt 4701 Sfmt 4700 E:\FR\FM\23MYR2.SGM Continued 23MYR2 30658 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES2 the Commissions may consider providing further relief should experience show, after the ECP definition becomes effective, that further relief is warranted, neither the ECP definition nor the various actions cited in the foregoing paragraph are final, so providing further relief is premature. The Commissions’ measured approach, which builds on the existing net worth requirement in the general entity ECP category, provides broad relief to many of the commenters (e.g., borrowers generally) while otherwise adhering to the existing ECP categories. The Commissions note that commenters said that, because of the way some businesses are structured for tax, estate planning or other purposes, they enter into swaps through a legal entity that does not, by itself, qualify as an ECP even though the net worth of the business and its owners, taken in the aggregate, would qualify as an ECP pursuant to subclause (A)(v)(III) of the ECP definition. The Commissions believe that the best way to address this concern is to allow such a business to consider the net worth of all its owners in determining whether the net worth requirement in subclause (A)(v)(III) is satisfied.717 CFTC Regulation § 1.3(m)(7) is available only to an entity that seeks to qualify as an ECP under subclause (A)(v)(III) of the statutory definition in order to enter into a swap that will be used to hedge or mitigate commercial risk. The Commissions limited CFTC Regulation § 1.3(m)(7) to subclause (A)(v)(III) because this provision of the ECP definition is available to a business entity that uses swaps in connection with the conduct of its business or to manage risks associated with assets or liabilities related to the conduct of its business.718 The purpose of CFTC Regulation § 1.3(m)(7) is to maintain the ability of business entities to enter into swaps other than on or subject to the rules of a DCM for limited purposes. This only [ECPs] may engage in swaps unless entered into on a designated contract market,’’ and ‘‘[t]he NGFA believes that these safeguards provide morethan-ample protection in the swaps marketplace for both agricultural and non-agricultural swaps and that there is no compelling reason to place additional burdens on agricultural swaps.’’). 717 The Commissions note that this regulation provides an alternative means for certain business entities to qualify as ECPs. It neither diminishes nor qualifies in any way the requirement in CEA section 2(e) that persons that are not ECPs enter into swaps only on or subject to the rules of a DCM. 718 CEA section 1a(18)(A)(v)(III)(bb), 7 U.S.C. 1a(18)(A)(v)(III)(bb). The Commissions note that an entity that would qualify as an ECP under subclause (A)(v)(III) without application of CFTC Regulation § 1.3(m)(7) is not required to meet the conditions stated in, this regulation. VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 regulation therefore is available only with respect to a swap that is used to hedge or mitigate commercial risk within the meaning of CFTC Regulation § 1.3(kkk).719 CFTC Regulation § 1.3(m)(7) applies only if all of an entity’s owners qualify as ECPs under the provision of the ECP definition applicable to such owner. Although some commenters suggested that an entity should be able to qualify as an ECP based on the status of its majority or controlling owners,720 the Commissions believe that CFTC Regulation § 1.3(m)(7) should be available only when all of an entity’s owners qualify as ECPs. The Commissions do not believe it would be appropriate to impair the protection of non-ECPs that flows from the requirement that non-ECPs enter into swaps only on or subject to the rules of a DCM.721 In order to maintain these protections and prevent evasion, CFTC Regulation § 1.3(m)(7) provides that any shell company will be disregarded, and in order to determine if the underlying entity may use CFTC Regulation § 1.3(m)(7), each owner of such shell company must be an ECP.722 Correspondingly, in aggregating net worth for purposes of determining the ECP status of an entity pursuant to CFTC Regulation § 1.3(m)(7), if the entity is owned by a shell company, then it is the net worth of the owners of that shell company that is relevant, not the net worth of the shell company.723 Last, also in order to prevent evasion, CFTC Regulation § 1.3(m)(7)(ii)(C) specifies that an individual may rely on the proprietorship provision of clause 719 See part IV.C. The use of the phrase ‘‘hedge or mitigate commercial risk’’ in CFTC Regulations §§ 1.3(m)(7) and 1.3(kkk) is similar to the use of the same phrase in the exception to the mandatory clearing requirement in CEA section 2(h)(7), 7 U.S.C. 2(h)(7). 720 See, e.g., letter from NAREIT. 721 See CEA section 2(e), 7 U.S.C. 2(e). 722 See CFTC Regulation § 1.3(m)(7)(ii). The term ‘‘shell company’’ means any entity that limits its holdings to direct or indirect interests in entities that are ECPs through reliance on CFTC Regulation § 1.3(m)(7). Any entity that holds at least one direct or indirect interest in an entity not relying on CFTC Regulation § 1.3(m)(7) would not be a shell company. The ECP status of owners of entities that are not shell companies is not relevant for purposes of CFTC Regulation § 1.3(m)(7), which should permit wider financing of small businesses using swaps to hedge or mitigate commercial risk. To be clear, an individual will never be considered to be a shell company for purposes of CFTC Regulation § 1.3(m)(7). 723 This provision may apply repeatedly in a ‘‘chain.’’ For example, if in determining whether an entity may rely on CFTC Regulation § 1.3(m)(7), an owner of that entity that is a shell company is disregarded, then if the owner of that shell company is also a shell company, that second shell company also is disregarded, and so on. PO 00000 Frm 00064 Fmt 4701 Sfmt 4700 (A)(v) of the statutory definition for purposes of determining its status as an ECP owner of an entity only if the proprietorship 724 status arises independent of the business conducted by such entity 725 and the individual proprietor acquires his/her interest in such entity (i) in connection with the conduct of the individual’s proprietorship or (ii) to manage the risk associated with an asset or liability owned or incurred or reasonably likely to be owned or incurred by the proprietorship.726 The Commissions are adopting CFTC Regulation § 1.3(m)(7)(ii)(C) because they believe that the only circumstance in which a proprietorship should be considered an ECP for purposes of CFTC Regulation § 1.3(m)(7)(i) is if it is making an investment related to the proprietorship.727 The ECP status of an individual acting other than with respect to its proprietorship is determined based on the ECP clause applicable to individuals. The Commissions note that they have authority to take action to prevent evasion of the provisions regarding shell companies and proprietorships by entities relying on CFTC Regulation § 1.3(m)(7) to establish ECP status. 724 A proprietorship generally is a business that a person operates in a personal capacity and with respect to which that person directly owns all the assets and directly is responsible for all of the liabilities, rather than through a corporation, partnership or other structure conveying limited liability. See letters from Midmarket Banks and Wells Fargo II (stating that ‘‘proprietors . . . typically are not separate legal entities’’); see also State of California Franchise Tax Board Web site (advising that ‘‘[t]he business and the owner are one. There is no separate legal entity and thus no separate legal person’’), at https://www.ftb.ca.gov/ businesses/bus_structures/soleprop.shtml. A proprietorship is not a separate taxable entity but reports the income or loss of the business, which is taxed along with a sole proprietor’s other income, on a separate schedule attached to his or her individual federal income tax return. See letter from Midmarket Banks. See also 2011 Form1040 Schedule C: Profit or Loss from Business (Sole Proprietorship), available at https://www.irs.gov/ pub/irs-pdf/f1040sc.pdf; 2011 Instructions for Schedule C, available at https://www.irs.gov/pub/irspdf/i1040sc.pdf. 725 CFTC Regulation § 1.3(m)(7)(ii)(C)(I) is designed to ensure that the individual qualifies as a proprietorship, if at all, other than due to its interest in either an entity seeking to qualify as an ECP under CFTC Regulation § 1.3(m)(7)(i) or in any other entity. 726 See CFTC Regulation § 1.3(m)(7)(ii)(C)(IV). This language is modeled on the language in 7 U.S.C. 1a(18)(A)(v)(III)(bb). 727 The Commissions note that this guidance regarding proprietorships applies only when an entity is relying on CFTC Regulation § 1.3(m)(7). The Commissions do not intend that this guidance would expand or limit the circumstances when a proprietorship may otherwise rely on clause (A)(v) of the statutory definition in establishing its ECP status. E:\FR\FM\23MYR2.SGM 23MYR2 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations G. ECP Status for Forex Pools Operated by Registered CPOs or CPOs Exempt From Registration Under Certain Conditions mstockstill on DSK4VPTVN1PROD with RULES2 1. Description of the Issue and Commenters’ Views Notwithstanding the modifications to the look-through provisions for Forex Pools discussed above in section III.B., the Commissions acknowledge commenters’ concerns about the potential for unintended consequences arising from the look-through provisions of the Dodd-Frank Act. Several commenters asserted that many Forex Pools are operated by sophisticated, professional managers that do not need the protections of a retail forex regime designed to protect non-ECPs that are engaging in retail forex transactions.728 More specifically, some commenters, based on CFTC enforcement actions involving Forex Pools, suggested that commodity pools of a sufficient size, and/or operated by a registered or exempt CPO, do not pose the risks of fraud and abuse of non-ECP customers that the statutory look-through provision is intended to address.729 As a result, commenters suggested that the look-through provision should not apply in determining ECP status of commodity pools that meet certain conditions. For example, commenters 728 See, e.g., letters from Millburn (characterizing the proposed rules as ‘‘greatly limit[ing] the ability of entities managed by sophisticated money managers that are subject to registration and examination by regulators to qualify as ECPs’’) and Sidley (describing ‘‘[a] commodity pool, like a registered investment company or an employee benefit plan, [a]s a pool of assets from investors of varying (and, in some cases, undetermined) levels of sophistication that are advised by a sophisticated adviser’’). 729 See joint letter from the Global Foreign Exchange Division (‘‘GXFD’’) and MFA dated January 19, 2011 (‘‘GFXD II’’) (describing 35 CFTC Forex Pool enforcement cases from 2010 and 2011 and noting that in 80% of these cases, the amount at issue in the misconduct was less than $10 million, and that only one case involved a registered CPO where the amount at issue in the misconduct was more than $10 million; two additional cases involved misconduct involving CPOs exempt from registration as such under CFTC Regulation § 4.13(a). While the commenter did not characterize these amounts as ‘‘total assets’’ (instead, the commenter used terms such as ‘‘fraudulently obtained’’ or ‘‘sustained losses of’’ to modify the cited dollar amounts) in most cases, it is clear that these amounts are equivalent to, or subsets of, total assets. For instance, for a CPO to have fraudulently obtained $10 million from commodity pool participants, the CPO must have taken in $10 million from them, resulting in the commodity pool at one time having $10 million in total assets. See also letter from Sidley (providing 26 examples of CFTC Forex Pool-related enforcement cases, all but one of which involved Forex Pools with less than $50 million in total assets). A number of the cases cited by GXFD and Sidley overlap; in the aggregate, these commenters appear to have presented data on 45 different cases rather than 61. VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 suggested that the look-through not be applied to a commodity pool with $10 million in total assets paired with another or other factors, such as not being structured to evade,730 being subject to regulation under the CEA731 or the CPO being registered as such.732 Another commenter suggested requiring the total assets or minimum initial investment of a Forex Pool to be sufficiently large that, in general, only legitimate pools would exceed such thresholds.733 This commenter suggested a total asset threshold of $50 million.734 Separately, one commenter also claimed that the statutory look-through, if strictly implemented, might inappropriately preclude Forex Pools and their CPOs, many of whom are registered, from engaging in retail forex transactions with swap dealers because swap dealers are not Enumerated Counterparties (and some swap dealers also may not be Enumerated Counterparties in a different capacity, such as being a U.S. financial institution).735 This commenter stated that such a result could reduce close out netting opportunities in the event of the insolvency of a counterparty. 2. Final Rule In response to commenters, the CFTC is adopting CFTC Regulation § 1.3(m)(8), pursuant to which certain Forex Pools may qualify as ECPs notwithstanding the look-through requirement. As adopted, CFTC Regulation § 1.3(m)(8) enables a Forex Pool that enters into a retail forex transaction to qualify as an ECP with respect thereto, irrespective of whether each participant in the Forex Pool is an ECP, if the Forex Pool satisfies the following conditions: 730 See letter from GFXD II. letters from GXFD II and Skadden. 732 See meeting with SIFMA on January 20, 2012 (in which representatives of SIFMA proposed a new non-exclusive set of criteria for a Forex Pool to qualify as an ECP, which included, as one of several alternatives in one element of the proposed criteria, that a Forex Pool be operated by a registered CPO). See also letter from Willkie Farr (observing that ‘‘[i]t may be time to regulate certain previously unregulated transactions and traders, so that more CPOs are registered’’ and that ‘‘many commodity pools are operated and advised by registered professionals’’). 733 See letter from Sidley. 734 See id. 735 See joint letter from the GFXD and MFA dated January 10, 2012 (‘‘GFXD I’’). These commenters indicated that, while [s]ome swap dealers may be dually licensed as a bank or a broker-dealer [and therefore] eligible to transact in OTC foreign exchange with retail investors as well as swaps with institutional investors * * * as an operational matter, it is not clear that firms will be able to and find it efficient to structure their business so that the retail foreign exchange platform is conducted from the same entity as the institutional swaps business. 731 See PO 00000 Frm 00065 Fmt 4701 Sfmt 4700 30659 • It is not formed for the purpose of evading CFTC regulation under Section 2(c)(2)(B) or Section 2(c)(2)(C) of the CEA or related CFTC rules, regulations or orders governing Retail Forex Pools and retail forex transactions); • It has total assets exceeding $10 million; and • It is formed and operated by a registered CPO or by a CPO who is exempt from registration as such pursuant to CFTC Regulation § 4.13(a)(3). CFTC Regulation § 1.3(m)(8) as adopted requires that the Forex Pool not be formed for the purpose of evading CFTC regulation of Retail Forex Pools and retail forex transactions under CEA Section 2(c)(2)(B) or (C). A Forex Pool that is formed for that purpose would not be an ECP under new CFTC Regulation § 1.3(m)(8). CFTC Regulation § 1.3(m)(8) as adopted also requires that the Forex Pool have total assets exceeding $10 million to qualify as an ECP. The $10 million threshold is twice the current total asset threshold for a commodity pool to qualify as an ECP under CEA section 1a(18)(A)(iv). The Commissions believe the $10,000,000 threshold is appropriate in light of the potential regulatory burdens a higher threshold might impose on smaller commodity pools. The Commissions believe that such a threshold, coupled with the other conditions of the rule, is sufficiently high to assure that the protections provided to retail forex transactions are not needed for these types of commodity pools. The Commissions will vigilantly monitor developments with respect to Forex Pools, including enforcement activity, and revisit this total asset threshold if warranted by subsequent events. Finally, CFTC Regulation § 1.3(m)(8) as adopted requires that Forex Pool be formed 736 and operated by a CPO registered as such with the CFTC or by a CPO who is exempt from registration as such pursuant to CFTC Regulation § 4.13(a)(3). The Commissions believe that the registered CPO aspect of this condition is appropriate for several reasons, including that it will ensure 736 Given that (i) many CPOs will be registering as such for the first time due to the CFTC’s recent rescission of the exemption from CPO registration set forth in CFTC Regulation § 4.13(a)(4) or its modification of the criteria for claiming the exclusion from the CPO definition in CFTC Regulation § 4.5 and (ii) such pools were formed prior to their CPOs’ registration as such, commodity pools formed prior to December 31, 2012 need not have been ‘‘formed’’ by a registered CPO or by a CPO exempt from registration as such pursuant to CFTC Regulation § 4.13(a)(3) in order to be qualified as ECPs under the new prong, so long as they are operated by a registered CPO on or before such date. E:\FR\FM\23MYR2.SGM 23MYR2 30660 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES2 that the NFA oversees compliance by those registered CPOs relying on this new regulation.737 CPO registration also provides a clear means of addressing wrongful conduct.738 Although some commenters suggested that a CPO need only be ‘‘subject to regulation under the CEA’’ in order for a Forex Pool operated by that CPO to qualify as an ECP notwithstanding the look-through requirements, CFTC Regulation § 1.3(m)(8) instead requires that the CPO of a Forex Pool be registered as a CPO or be a CPO who is exempt from registration as such pursuant to CFTC Regulation § 4.13(a)(3), alternative conditions supported by other commenters. The Commissions are requiring operation by a registered CPO, or by a CPO who is exempt from registration as such pursuant to CFTC Regulation § 4.13(a)(3), as a condition for a Forex Pool to qualify for ECP status under CFTC Regulation § 1.3(m)(8) because, based on the data presented by commenters, CFTC enforcement actions involving Forex Pools rarely involve registered CPOs or CPOs exempt from registration as such.739 While NFA oversight of CPOs operating Retail Forex Pools is a useful criterion to determine whether an exclusion from the look-through provisions of CEA section 1a(8)(A)(iv) 737 See CPO/CTA Compliance Release at 11254 (noting that ‘‘registration allows the Commission to ensure that all entities operating collective investment vehicles participating in the derivatives markets meet minimum standards of fitness and competency’’). See https://www.nfa.futures.org/NFAregistration/cpo/ for an overview of registration and related requirements for CPOs, their principals and their associated persons and https://www.nfa.futures.org/NFA-compliance/NFAcommodity-pool-operators/ for an overview of the compliance regime for registered CPOs overseen by the NFA. The CFTC anticipates that more CPOs will register in the coming months now that it has withdrawn the CFTC Regulation § 4.13(a)(4) exemption from CPO registration, increasing the number of registered CPOs, in turn increasing the number of CPOs who can satisfy the registered CPO alternative under CFTC Regulation § 1.3(m)(8)(iii). 738 See CPO/CTA Compliance Release at 11254 (stating that ‘‘the [CFTC] has clear authority to take punitive and/or remedial action against registered entities for violations of the CEA or of the [CFTC’’s regulations * * * [and] to deny or revoke registration, thereby expelling an individual or entity from serving as an intermediary in the industry’’ and that the CFTC’s reparations program and the NFA’s arbitration program also are available avenues ‘‘to seek redress for wrongful conduct by a [CFTC] registrant’’). 739 As discussed above in note 729, only one of the 45 unique cases presented by commenters involved a pool with more than $10 million in total assets and a registered CPO. Only two of those cases involved a pool operated by CPOs exempt from registration: in both of those cases, however, the CPO raised less than $10 million. In addition, one of those CPOs relied on the CFTC Regulation § 4.13(a)(4) CPO registration exemption. As discussed above, the CFTC has withdrawn that exemption. VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 and CFTC Regulation § 1.3(m)(5) is warranted, the Commissions believe that Retail Forex Pools operated by CPOs exempt from registration as such pursuant to CFTC Regulation § 4.13(a)(3) also merit relief from those look-through provisions. On September 10, 2010, the CFTC published in the Federal Register a final rule revising the CPO registration exemption in CFTC Regulation § 4.13(a)(3) to incorporate retail forex transactions into the transactions subject to the alternative caps on the use of commodity interests 740 by CPOs claiming the exemption.741 The CFTC explained in the related Federal Register proposing release that the proposed change to CFTC Regulation § 4.13(a)(3) was part of a proposal to adopt a comprehensive regulatory scheme to implement the CRA with respect to retail forex transactions (‘‘CRA-Related Forex Proposal’’).742 The CFTC also explained that ‘‘the NFA-specified minimum security deposit for off-exchange retail forex transactions would be included among the amounts that cannot exceed 5 percent of the liquidation value of the pool’s portfolio in order for the operator to claim the exemption from registration under Regulation 4.13(a)(3)’’743 and that ‘‘such amounts are roughly equivalent to initial margin and option premiums).’’ 744 The CFTC also described the CRA-Related Forex Proposal as ‘‘amend[ing] existing regulations as needed to clarify their application to, and inclusion in, the new regulatory scheme for retail forex.’’ 745 More recently, notwithstanding the Dodd-Frank Act’s addition of the look-through provision 740 The term ‘‘commodity interest’’ is defined in CFTC Regulation § 1.3(yy), and includes ‘‘[a]ny contract, agreement or transaction subject to [CFTC] jurisdiction under section 2(c)(2) of the [CEA].’’ CFTC Regulation § 1.3(yy)(3). 741 See CFTC, Regulation of Off-Exchange Retail Foreign Exchange Transactions and Intermediaries; Final Rules, 75 FR 55410 (Sept. 10, 2010). 742 CFTC, Regulation of Off-Exchange Retail Foreign Exchange Transactions and Intermediaries; Proposed Rules, 75 FR 3282 (Jan. 10, 2010). 743 Section 12 of the NFA’s Financial Requirements impose the following minimum security deposit requirements for retail forex transactions: (i) 2% of the notional value of transactions in the British pound, the Swiss franc, the Canadian dollar, the Japanese yen, the Euro, the Australian dollar, the New Zealand dollar, the Swedish krona, the Norwegian krone, and the Danish krone; (ii) 5% of the notional value of other transactions; (iii) for short options, the above amount plus the premium received; and (iv) for long options, the entire premium. See NFA Manual, available at https://www.nfa.futures.org/nfamanual/ NFAManual.aspx? RuleID=SECTION%2012&Section=7. 744 CFTC, Regulation of Off-Exchange Retail Foreign Exchange Transactions and Intermediaries; Proposed Rules, 75 FR 3282, 3287 (Jan. 10, 2010). 745 Id. at 3282. PO 00000 Frm 00066 Fmt 4701 Sfmt 4700 in CEA section 1a(8)(A)(iv), the CFTC determined to retain the exemption from CPO registration under Regulation 4.13(a)(3), reasoning that ‘‘overseeing entities with less than five percent exposure to commodity interests is not the best use of the Commission’s resources.’’ 746 Given that, shortly before the adoption of the Dodd-Frank Act, the CFTC proposed to add retail forex transactions to those that can be entered into by CPOs claiming relief from registration as such under CFTC Regulation § 4.13(a)(3), that it finalized that action shortly after the Dodd-Frank Act was adopted and that it recently left CFTC Regulation § 4.13(a)(3) in place despite having proposed to withdraw that CPO registration exemption, and for the reasons described above, the Commissions believe CPOs exempt from registration as such pursuant to CFTC Regulation 4.13(a)(3) and operating Retail Forex Pools should be able to continue to do so outside the retail forex regime. Section 712(d)(2)(A) of the DoddFrank Act grants the Commissions the authority to adopt such rules related to the ECP definition as the Commissions determine are necessary and appropriate, in the public interest, and for the protection of investors. Based on commenters’ views, the Commissions have determined that CFTC Regulation § 1.3(m)(8) as adopted is necessary and appropriate because the statutory lookthrough provision, if strictly implemented, would subject Forex Pools operated by CPOs that are sophisticated, professional asset managers to an array of additional compliance costs and deprive them of access to swap dealers as counterparties when engaging in retail forex transactions.747 The Commissions also have determined that it is appropriate to limit the availability of ECP status under CFTC Regulation § 1.3(m)(8) to Forex 746 CPO/CTA Compliance Release at 11261. The CFTC also stated that: [t]he Commission believes that trading exceeding five percent of the liquidation value of a portfolio, or a net notional value of commodity interest positions exceeding 100 percent of the liquidation value of a portfolio, evidences a significant exposure to the derivatives markets, and that such exposure should subject an entity to the Commission’s oversight. Id. at 11263. 747 The nature of a swap dealer’s business activities and assets may detract from what is considered regulatory capital for an FCM or RFED engaging in retail forex transactions, thereby making it difficult for some swap dealers to dually register both as such and as an FCM or RFED in order to do retail forex business. As an ECP, a Forex Pool’s choice of retail forex transaction counterparties will not be limited to Enumerated Counterparties, and thus may include swap dealers. E:\FR\FM\23MYR2.SGM 23MYR2 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations Pools operated by registered CPOs or by CPOs exempt from registration as such pursuant to CFTC Regulation § 4.13(a)(3).748 The conditions in CFTC Regulation § 1.3(m)(8) also are appropriate in that they require Forex Pools seeking ECP status thereunder to have total assets exceeding $10 million. Historically, CFTC enforcement actions have involved fewer instances of misconduct by CPOs of Forex Pools with total assets above this threshold.749 The Commissions have determined that CFTC Regulation § 1.3(m)(8) is in the public interest in that it will make available a category of counterparty (i.e., swap dealers) that likely would not otherwise be available, and help to assure that sophisticated, professional managers operating qualifying Forex Pools can continue to engage in retail forex transactions. The Commissions have determined that the conditions of CFTC Regulation § 1.3(m)(8) are sufficient for the protection of investors for the reasons discussed above, such as a significant reduction in the incidence of Forex Pool misconduct among CPOs, whether registered as such or exempt therefrom, operating Forex Pools with more than $10 million in total assets. The Commissions intend to monitor developments in the Forex Pool area and will revisit the conditions of this regulation as warranted by subsequent events. mstockstill on DSK4VPTVN1PROD with RULES2 IV. Definitions of ‘‘Major Swap Participant’’ and ‘‘Major SecurityBased Swap Participant’’ The statutory definitions of ‘‘major swap participant’’750 and ‘‘major security-based swap participant’’751 (collectively, ‘‘major participant’’) encompass any person that is not a swap dealer or security-based swap dealer 752 and that satisfy any one of three alternative statutory tests that 748 The Commissions note that the statistics presented by commenters indicate that Forex Pool misconduct by registered CPOs and those exempt from CPO registration is significantly rarer than Forex Pool misconduct by otherwise unregistered CPOs. See letter from the GFXD II. 749 See letter from Sidley (showing that 6 of the 27 cases presented involved more than $10 million). 750 CEA section 1a(33). 751 Exchange Act section 3(a)(67). 752 As discussed above, a person may be designated as a dealer for particular activities involving swaps or security-based swaps, or particular swap or security-based swap activities, without being deemed to be a dealer with regard to other categories or activities. See part II.E, supra. To the extent that a person is subject to that type of limited designation as a swap dealer or securitybased swap dealer, the person may be subject to being a major swap participant or a major securitybased swap participant in connection with positions that fall outside of that limited dealer designation. VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 encompass a person: (i) That maintains a ‘‘substantial position’’ in swaps or security-based swaps for any of the major swap categories as determined by the Commissions; (ii) whose outstanding swaps or security-based swaps create substantial counterparty exposure that could have serious adverse effects on the financial stability of the U.S. banking system or financial markets;753 or (iii) that is a ‘‘financial entity’’ that is ‘‘highly leveraged’’ relative to the amount of capital it holds (and that is not subject to capital requirements established by an appropriate Federal banking agency) and maintains a ‘‘substantial position’’ in outstanding swaps or security-based swaps in any major category as determined by the Commissions.754 The first—and only the first—of those three statutory tests explicitly excludes: (i) Positions held for ‘‘hedging or mitigating commercial risk,’’ and (ii) positions maintained by any employee benefit plan as defined in sections 3(3) and (32) of ERISA for the ‘‘primary purpose of hedging or mitigating any risk directly associated with the operation of the plan.’’755 The statutory definitions require the Commissions to define the term ‘‘substantial position’’ at the threshold determined to be prudent for the effective monitoring, management, and oversight of entities that are systematically important or can significantly impact the financial system of the U.S. In setting these thresholds, the Commissions are required to consider the person’s relative position in uncleared as opposed to cleared swaps and may take into consideration the value and quality of collateral held against counterparty exposures.756 The statutory definitions further permit the Commissions to limit the scope of the major participant designations so that a person may be designated as a major participant in certain categories of swaps or securitybased swaps, but not all categories.757 In addition, the ‘‘major swap participant’’ definition excludes certain entities whose primary business is providing financing and that use derivatives for the purpose of hedging underlying commercial risks related to interest rate and foreign currency 753 See CEA section 1a(33)(A)(ii); Exchange Act section 3(a)(67)(A)(ii)(II). 754 See CEA section 1a(33)(A)(iii); Exchange Act section 3(a)(67)(A)(ii)(III). 755 See CEA section 1a(33)(A)(i); Exchange Act section 3(a)(67)(A)(ii)(I). 756 See CEA section 1a(33)(B) and Exchange Act section 3(a)(67)(B). 757 See CEA section 1a(33)(C); Exchange Act section 3(a)(67)(C). PO 00000 Frm 00067 Fmt 4701 Sfmt 4700 30661 exposures, 90 percent or more of which arise from financing that facilitates the purchase or lease of products, 90 percent or more of which are manufactured by the parent company or another subsidiary of the parent company.758 The ‘‘major security-based swap participant’’ definition does not contain this type of exclusion. As detailed in the Proposing Release, the major participant definitions focus on the market impacts and risks associated with a person’s swap and security-based swap positions.759 This is in contrast to the definitions of ‘‘swap dealer’’ and ‘‘security-based swap dealer,’’ which focus on a person’s activities and account for the amount or significance of those activities only in the context of the de minimis exception. However, persons that meet the major participant definitions in large part must follow the same statutory requirements that will apply to swap dealers and security-based swap dealers.760 In this way, the statute applies comprehensive regulation to entities whose swap or security-based swap activities do not cause them to be dealers, but nonetheless could pose a high degree of risk to the U.S. financial system generally.761 Although the two major participant definitions are similar, they address instruments that reflect different types of risks and that can be used by endusers and other market participants for 758 See CEA section 1a(33)(D). Proposing Release, 75 FR at 80185. 760 In particular, under CEA section 4s and Exchange Act section 15F, dealers and major participants in swaps or security-based swaps generally are subject to the same types of margin, capital, business conduct and certain other requirements, unless an exclusion applies. See CEA section 4s(h)(4), (5); Exchange Act section 15F(h)(4), (5). See also CFTC, Business Conduct Standards for Swap Dealers and Major Swap Participants with Counterparties; Final Rule, 77 FR 9733 (Feb. 17, 2012); Notice of Proposed Rulemaking: Capital requirements of swap dealers and major swap participants, 76 FR 27802 (May 12, 2011); and SEC, Notice of Proposed Rulemaking: Business Conduct Standards for Security-Based Swap Dealers and Major Security-Based Swap Participants, Securities Exchange Act Release No. 64766, 76 FR 42396 (July 18, 2011). 761 As discussed below, the tests of the major participant definitions use terms—particularly ‘‘systemically important,’’ ‘‘significantly impact the financial system’’ or ‘‘create substantial counterparty exposure’’—that denote a focus on entities that pose a high degree of risk through their swap and security-based swap activities. In addition, the link between the major participant definitions and risk was highlighted during the Congressional debate on the statute. See 156 Cong. Rec. S5907 (daily ed. July 15, 2010) (colloquy between Senators Hagen and Lincoln, discussing how the goal of the major participant definitions was to ‘‘focus on risk factors that contributed to the recent financial crisis, such as excessive leverage, under-collateralization of swap positions, and a lack of information about the aggregate size of positions’’). 759 See E:\FR\FM\23MYR2.SGM 23MYR2 30662 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations different purposes. Interpretation of the definitions must account for those differences as appropriate. The Commissions in the Proposing Release proposed to further define the ‘‘major swap participant’’ and ‘‘major security-based swap participant’’ definitions, by specifically addressing: (i) The ‘‘major’’ categories of swaps or security-based swaps; (ii) the meaning of ‘‘substantial position’’; (iii) the meaning of ‘‘hedging or mitigating commercial risk’’; (iv) the meaning of ‘‘substantial counterparty exposure that could have serious adverse effects on the financial stability of the United States banking system or financial markets’’; and (v) the meanings of ‘‘financial entity’’ and ‘‘highly leveraged.’’ The proposal also addressed the period of time that a major participant would have to register (as well as the minimum length of time for being a major participant), the limited purpose designations of major participants, the exclusion for ERISA plan hedging positions, and certain additional interpretive issues. After considering commenters’ views, the Commissions are adopting final rules further defining the meaning of major participant. As discussed below, the Commissions also are directing their respective staffs to report separately as to whether changes are warranted to any of the rules implementing the major participant definitions. These staff reports will help the Commissions evaluate the ‘‘major swap participant and ‘‘major security-based swap participant’’ definitions, including whether new or revised tests or approaches would be appropriate for identifying major participants.762 mstockstill on DSK4VPTVN1PROD with RULES2 A. ‘‘Major’’ Categories of Swaps and Security-Based Swaps 1. Proposed Approach The first and third tests of the statutory major participant definitions encompass entities that maintain a substantial position in a ‘‘major’’ category of swaps or security-based swaps.763 In the Proposing Release, the Commissions proposed to designate four ‘‘major’’ categories of swaps and two ‘‘major’’ categories of security-based swaps. These categories sought to reflect the risk profiles of the various types of swaps and security-based swaps, and the different purposes for which endusers use those instruments. The Proposing Release also noted the importance of not parsing the ‘‘major’’ categories so finely as to base the ‘‘substantial position’’ thresholds on unduly narrow risks and reduce those thresholds’ effectiveness as risk measures.764 The proposed four ‘‘major’’ categories of swaps were rate swaps, credit swaps, equity swaps and other commodity swaps.765 Rate swaps would encompass any swap which is primarily based on one or more reference rates, such as swaps of payments determined by fixed and floating interest rates, currency exchange rates, or other monetary rates. Credit swaps would encompass any swap that is primarily based on default, bankruptcy and other credit-related risks related to, or the total returns on, instruments of indebtedness (including loans), including but not limited to any swap primarily based on one or more broad-based indices related to debt instruments, and any swap that is a broad-based index credit default swap or total return swap. Equity swaps would encompass any swap that is primarily based on equity securities, such as any swap primarily based on one or more broad-based indices of equity securities, including any total return swap on one or more broad-based equity indices. Other commodity swaps would encompass any swap not included in any of the first three categories, and would generally include, for example and not by way of limitation, any swap for which the primary underlying item is a physical commodity or the price or any other aspect of a physical commodity. The four categories were intended to cover all swaps, and each swap would be in the category that most closely describes the primary item underlying the swap.766 The Commissions proposed to designate two ‘‘major’’ categories of security-based swaps.767 The first category would encompass any securitybased swap that is based, in whole or in part, on one or more instruments of indebtedness (including loans), or a credit event relating to one or more issuers or securities, including but not limited to any security-based swap that is a credit default swap, total return swap on one or more debt instruments, debt swaps, or debt index swaps. The second category would encompass any other security-based swaps not included in the first category, including for example, swaps on equity securities or 764 See Proposing Release, 75 FR at 80186–87. proposed CFTC Regulation § 1.3(iii). 766 The statutory definition of ‘‘swap’’ lists 22 different types of swaps. 767 See proposed Exchange Act rule 3a67–2. 765 See 762 See part V, infra. CEA section 1a(33)(A)(i), (iii); Exchange Act section 3(a)(67)(a)(2)(i), (iii). 763 See VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 PO 00000 Frm 00068 Fmt 4701 Sfmt 4700 narrow-based security indices comprised of equity securities.768 These proposed categories were based on the different uses of these types of securitybased swaps, and were consistent with market statistics and infrastructures that distinguish between those types of security-based swaps.769 2. Commenters’ Views Certain commenters requested clarification regarding how the major categories would be applied. One commenter particularly requested additional clarity as to how the proposed categories will apply to mixed swaps and to swaps that are based on debt that is convertible to equity,770 while another commenter requested additional clarity as to the status of certain mortgage-related transactions.771 One commenter suggested that the final rules should include a catch-all provision to allow the Commissions to review large positions that appear to be structured to evade proper categorization, and that market participants should suggest the protocols for categorization of swaps or security-based swaps.772 One commenter suggested that the rate swap category should be divided between interest rates and currencies, and that energy, agriculture and metals swaps should be separate categories.773 Another commenter expressed the view that creation of a separate category for cross currency swaps could lead to confusion among market participants who may feel obligated to bifurcate cross currency swaps between two categories.774 Some commenters expressed general support for the major categories as proposed.775 3. Final Rules After considering the issue in light of comments received, the Commissions are adopting final rules designating ‘‘major’’ categories of swaps and security-based swaps consistent with the proposal. Accordingly, the final rules provide that the four ‘‘major’’ categories of swaps are rate swaps, 768 The second category also encompasses all security-based swaps on narrow based indices that are comprised of both debt and equity components. 769 See Proposing Release, 75 FR at 80187. 770 See letter from ISDA I. 771 See letter from Freddie Mac. 772 See meeting with Professor Darrell Duffie, Stanford University Graduate School of Business (‘‘Duffie’’) on February 2, 2011. 773 See letter from Better Markets I. 774 See letter from ACLI. 775 See letters from Barnard, ISDA I and MetLife; see also letter from American Insurance Association (‘‘AIA’’) (agreeing that the defined major categories would cover substantially all significant swaps and security-based swaps). E:\FR\FM\23MYR2.SGM 23MYR2 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES2 credit swaps, equity swaps and other commodity swaps.776 The two ‘‘major’’ categories of security-based swaps are debt security-based swaps 777 and other security-based swaps.778 The Commissions believe that it is not necessary to further divide the proposed categories or add new categories for swaps and security-based swaps for purposes of the major participant definitions. We believe that maintaining a large number of narrow categories of swaps and security-based swaps would increase the possibility of confusion by market participants with regard to categorizing the swaps and securitybased swaps in which they transact. The Commissions also continue to believe that it is important not to parse the ‘‘major’’ categories so finely as to base the ‘‘substantial position’’ thresholds on unduly narrow groupings that would reduce those thresholds’ effectiveness as risk measures. Categories that are broad and clearly delineated further should help prevent action to evade designation as a major participant in a particular ‘‘major’’ category. While we believe that these rules in general are sufficiently clear to allow each swap and security-based swap to be placed in the appropriate category, we are mindful of the commenters’ request for guidance with regard to certain circumstances. In the case of mixed swaps, we would expect that the instrument would be placed in the ‘‘swap’’ and ‘‘security-based swap’’ categories that are consistent with the underlying attributes that cause such instrument to be a mixed swap.779 Also, swaps or security-based swaps that are 776 See CFTC Regulation § 1.3(iii). The four major categories of swaps are the same as the asset classes used in the CFTC Regulations relating to SDRs and reporting, except that the asset classes for interest rate swaps and foreign exchange transactions are combined into the single rate swap major category of swaps. See CFTC, Swap Data Repositories: Registration Standards, Duties and Core Principles; Final Rule, 76 FR 54538 (Sept. 1, 2011) and Swap Data Recordkeeping and Reporting Requirements; Final Rule, 77 FR 2136 (Jan. 13, 2012). 777 The name of the first major category of security-based swaps has been changed to ‘‘debt security-based swaps’’ in this Adopting Release from ‘‘security-based credit derivatives’’ in the Proposing Release. This change more accurately reflects the products encompassed by this category, particularly total return swaps on debt instruments. See Exchange Act rule 3a67–2(a). In addition, the final rules defining the major categories for purposes of the major participant definitions remove a cross-reference to the corresponding dealer definitions under the CEA or the Exchange Act to clarify that the rules apply only in the context of the major participant definitions, and not the dealer definitions. See CFTC Regulation § 1.3(iii); Exchange Act rule 3a67–2. 778 See Exchange Act rule 3a67–2(b). 779 The Commissions have proposed rules regarding the regulation of mixed swaps. See Product Definitions Proposal, note 3, supra. VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 based on more than one item, instrument or risk, should be placed in the category that most closely describes the primary item, instrument or risk underlying the swap or security-based swap.780 B. ‘‘Substantial Position’’ 1. Proposed Approach The major participant definitions require that the Commissions define a ‘‘substantial position’’ in swaps or security-based swaps at a threshold that we determine to be ‘‘prudent for the effective monitoring, management, and oversight’’ of entities that are systemically important or can significantly impact the U.S. financial system. The definitions further require that we consider a person’s relative position in uncleared and cleared swaps or security-based swaps, and permit us to consider the value and quality of collateral held against counterparty exposure.781 The proposed rules provided that a person would have a ‘‘substantial position’’ in swaps or security-based swaps if the daily average current uncollateralized exposure associated with its swap or security-based swap positions in a major category in a calendar quarter amounted to $1 billion or more (or $3 billion in the case of rate swaps).782 A person also would have a ‘‘substantial position’’ if the daily average of the sum of the current uncollateralized exposure plus the potential future exposure associated with its positions in a major category in a calendar quarter amounted to $2 billion or more (or $6 billion for the rate swap category).783 The proposed rules did not prescribe any particular methodology for measuring current exposure or valuing collateral posted, and instead provided that the method used should be consistent with counterparty practices and industry practices generally.784 The proposed rules also provided that an entity could calculate its current uncollateralized exposure by accounting for netting agreements on a counterparty-by-counterparty basis,785 780 In the case of instruments on debt securities that are convertible into equity, in general we would expect the instrument to be categorized based on its status (as debt or equity) at the time of evaluation. 781 See CEA section 1a(33)(B); Exchange Act section 3(a)(67)(B). 782 See proposed CFTC Regulation § 1.3(jjj)(1); proposed Exchange Act rule 3a67–3(a)(1), (d). 783 See proposed CFTC Regulation § 1.3(jjj)(1); proposed Exchange Act rule 3a67–3(a)(2), (d). 784 See proposed CFTC Regulation § 1.3(jjj)(2)(ii); proposed Exchange Act rule 3a67–3(a)(2)(i). 785 See proposed CFTC Regulation § 1.3(jjj)(2)(iii); proposed Exchange Act rule 3a67–3(b)(3). PO 00000 Frm 00069 Fmt 4701 Sfmt 4700 30663 and the Proposing Release set forth a method for allocating any residual uncollateralized exposure to a counterparty that remains following netting.786 The proposed potential future exposure test was based on the riskadjusted notional amount of the entity’s swap and security-based swap positions, consistent with a test used by bank regulators for purposes of setting capital standards.787 The test also excluded or lowered the potential exposure associated with certain lowerrisk positions.788 In addition, the measures of potential future exposure would be discounted by up to 60 percent to reflect the risk mitigation provided by netting agreements,789 and would further be decreased by 80 percent for positions subject to central clearing or daily mark-to-market margining.790 2. Commenters’ Views a. Basis for Regulating Major Participants and Alternative Approaches for Identifying ‘‘Substantial Positions’’ Several commenters expressed the view that the major participant definition is intended to address entities whose swap or security-based swap positions pose systemic risk,791 while one commenter took the contrary view that the definition also is intended to address the significance of an entity’s swap or security-based swap positions (as well as the risk those positions pose).792 One commenter stated that the proposal inappropriately sought to account for the risk posed by the potential default of multiple entities, rather than a single entity.793 Some commenters suggested that the analysis should account for the concentration of the risk posed by an entity’s 786 See Proposing Release, 75 FR at 80190. id. at 80191–92. 788 See proposed CFTC Regulation § 1.3(jjj)(3)(iii); proposed Exchange Act rule 3a67–3(c)(2)(i)(C), (D). 789 See proposed CFTC Regulation § 1.3(jjj)(3)(ii)(B); proposed Exchange Act rule 3a67– 3(c)(2)(ii). 790 See proposed CFTC Regulation § 1.3 (jjj)(3)(iii)(A); proposed Exchange Act rule 3a67– 3(c)(3)(i). This discount for daily margining would be available even in the presence of a threshold or a minimum transfer amount, so long as the threshold and the minimum transfer amount (if the latter exceeds $1 million) are separately added to the entity’s current exposure for purposes of the current exposure plus potential future exposure test. See proposed CFTC Regulation § 1.3(jjj)(3)(iii)(B); proposed Exchange Act rule 3a67–3(c)(3)(ii). 791 E.g., letters from BlackRock I and MFA I. 792 See letter from Better Markets I. 793 See letter from BlackRock I. 787 See E:\FR\FM\23MYR2.SGM 23MYR2 30664 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations positions,794 and one commenter suggested that the analysis should not account for individual categories of swaps or security-based swaps.795 b. Levels of Proposed ‘‘Substantial Position’’ Thresholds mstockstill on DSK4VPTVN1PROD with RULES2 A number of commenters expressed the view that the proposed thresholds are inappropriately low.796 Some commenters stated the thresholds initially should be high, with later revisions based on market data.797 Some commenters did not oppose the proposed thresholds or expressed support for the thresholds (though many of those commenters separately raised issues about the underlying tests),798 while two commenters supported lowering the proposed thresholds.799 Some commenters took the position that the thresholds should be adjusted over time to reflect factors such as inflation or market characteristics.800 794 See letters from Black Rock I (suggesting a two-step process that accounts for the reduced risk associated with entities whose positions are distributed among several counterparties); CCMR I and APG Algemene Pensioen Groep NV (‘‘APG’’). 795 See letter from NYCBA Committee. 796 See letters from ABC/CIEBA (indirectly referring to AIG Financial Products, and noting that it had $400 billion in notional positions and defaulted when it was required to post approximately $100 billion in collateral); BG LNG I (alluding to lack of systemic impact associated with Enron’s failure, and suggesting that the Commissions convene an advisory committee to develop thresholds); NCGA/NGSA I (alluding to corporate financial losses involving derivatives that have exceeded the proposed thresholds without significantly impacting the U.S. financial system); ACLI (supporting increase in proposed thresholds under the CEA to $4 billion current uncollateralized exposure and $8 billion current uncollateralized exposure plus potential future exposure); and Chesapeake Energy. 797 See letters from MFA dated February 25, 2011 (‘‘MFA II’’) (stating that thresholds initially should be set higher, while later survey-based thresholds should be based on potential systemic risk impact and the cost of performing the calculations); CCMR I (stating that the Commissions presently have insufficient data to determine appropriate thresholds, and that thresholds initially should be high); BlackRock I (stating that the Commissions should refrain from establishing thresholds if sufficient information is not available); and Freddie Mac. Two commenters particularly addressed the proposed thresholds applicable to rate swaps. See letters from ACLI and MetLife. 798 See, e.g., letters from ACLI, Fidelity, SIFMA AMG dated Feb. 22, 2011 (‘‘SIFMA AMG II’’) and Vanguard (supporting proposed limits for credit swaps, equity swaps and other commodity swaps, but not rate swaps). 799 See letters from AFR (supporting use of a $500 million uncollateralized exposure threshold, or a $1 billion current exposure plus potential future exposure threshold, with higher thresholds for rate swaps) and Greenberger. 800 See, e.g., letters from MFA I (referring to inflation and measures such as the amount of equity in the U.S. banking system) and ISDA I (referring to evolution of the size and fundamental characteristics of the markets, and changes to valuation methodologies and economic conditions). VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 c. Current Uncollateralized Exposure Test Measures of exposure and valuation of collateral—A number of commenters supported the Proposing Release’s position that the current exposure analysis not prescribe any methodology for measuring exposure or valuing collateral.801 On the other hand, some commenters requested explicit approval of particular methodologies,802 a good faith safe harbor,803 or regulatorprescribed measurement standards.804 Some commenters emphasized the need to be able to post non-cash collateral in connection with positions.805 Two commenters requested codification of the proposal’s position that operational delays associated with the daily exchange of collateral would not lead to current uncollateralized exposure for purposes of the analysis.806 Netting issues—Some commenters stated that the proposed netting provisions should be expanded to encompass additional products that may be netted for bankruptcy purposes.807 One commenter took the view that these provisions should be expanded across multiple netting agreements to the extent that offsets are permitted.808 One commenter asked for clarification as to the scope of the netting provisions,809 and one commenter expressed general support for the proposed netting provisions.810 Allocation of uncollateralized exposure—Some commenters requested that the final rules incorporate the principles, articulated in the Proposing Release, for allocating any uncollateralized exposure that remains following netting.811 Other commenters 801 See letters from Fidelity, ICI I, ISDA I and MFA I. 802 See letter from BlackRock I. Consistent with the proposal, the final rules contemplate the use of industry standard practices in the calculation of current exposure and potential future exposure. As with other rules adopted by the Commissions, a market participant may raise questions with the Commissions about the participant’s approach to addressing the final rules—including its use of particular methodologies—for further guidance as may be necessary or appropriate. 803 See letter from FSR I (particularly noting difficulty of valuing illiquid or bespoke positions). 804 See letter from Better Markets I. 805 See, e.g., letters from ACLI, CDEU and MetLife. 806 See letters from SIFMA AMG II and Vanguard. 807 See letters from ISDA I (specifically addressing securities contracts and forward contracts); NRG Energy (specifically addressing forwards); and APG (specifically addressing securities options and forwards). 808 See letter from FSR I. 809 See letter from Fidelity (seeking confirmation that ‘‘master netting agreement’’ can include an ISDA Master Agreement). 810 See letter from ACLI. 811 See letters from SIFMA AMG II and Vanguard. PO 00000 Frm 00070 Fmt 4701 Sfmt 4700 raised concerns that those principles were based on an unwarranted assumption that collateral is specifically earmarked to particular transactions.812 d. Potential Future Exposure Test General concerns and suggested alternative approaches—Some commenters disagreed with the Proposing Release’s statement that the potential future exposure analysis would evaluate potential changes in the value of a swap or security-based swap over the remaining life of the contract; those commenters stated that the test instead should focus on potential volatility during the time it would take for a non-defaulting party to close out a defaulting party’s positions.813 Some commenters criticized the tables setting forth the risk adjustments used to calculate potential future exposure.814 Commenters further suggested using, as alternatives, valueat-risk measures or other models,815 or the ‘‘standardized method’’ under Basel II.816 Commenters also argued that risk adjustments should provide a greater discount to credit swaps on ‘‘investment grade’’ instruments than to other credit swaps, that index CDS should be subject to a greater discount than single name CDS, and that there should be a lower discount factor for CDS of shorter maturity.817 One commenter generally supported the proposed conversion factors and adjustments.818 Some commenters expressed the view that measures of potential future exposure should be superseded by negotiated independent amounts or regulator-required initial margin.819 Some commenters also argued that 812 See letters from FSR I and ISDA I; see also letter from MetLife (suggesting pro rata allocation of uncollateralized current exposure among each major category with current exposure). 813 See letters from SIFMA AMG II and Vanguard. 814 See letters from Riverside Risk Advisors LLC (‘‘Riverside Risk Advisors’’) (criticizing, among other aspects, discontinuities in table, a failure to account for how far a swap is in or out of the money, the use of a single discount factor for credit default swaps, the fact that the risk factor for shortterm equity swaps is lower than the risk factor for credit swaps, and the fact that equity swaps do not distinguish between high-volatility and lowvolatility stocks, as well as the failure to address portfolio effects of diversification and correlation, and ‘‘wrong-way’’ risk in the form of ‘‘an adverse correlation between counterparty default risk and the value of its derivatives contracts’’); and ISDA I (noting that the conversion factors were calibrated more than 15 years ago and were not designed for later instruments such as credit products). 815 See letters from Riverside Risk Advisors (supporting giving end-users the option to use a model-based approach); and Better Markets I (supporting use of a value-at-risk calculation). 816 See letter from ISDA I. 817 See letters from AIMA I and MFA I. 818 See letter from MetLife. 819 See letters from SIFMA AMG II and Vanguard. E:\FR\FM\23MYR2.SGM 23MYR2 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES2 excess posted collateral or net in-themoney positions should be offset against potential future exposure.820 Potential future exposure measures for lower-risk positions—Some commenters stated that the proposal to cap potential future exposure when a person buys credit protection using a credit default swap should be expanded to apply to any position with a fixed downside risk.821 Commenters also suggested that the potential future exposure associated with purchases of credit protection be further discounted,822 while one commenter took the position that purchases of credit default swaps should be excluded from the potential future exposure test.823 Commenters also addressed the appropriate discount rate for calculating the net present value of unpaid premiums.824 Netting issues—One commenter stated that the proposal’s netting provisions did not adequately account for the risk mitigation associated with hedged positions,825 while another commenter asked that the proposed netting provisions be clarified and simplified.826 One commenter supported the proposed netting approach.827 Discount for cleared or margined positions—Several commenters took the view that cleared positions should be excluded entirely from the potential future exposure analysis, rather than only being subject to an 80 percent discount,828 and some commenters also supported a complete exclusion for positions subject to daily mark-tomarket margining.829 One commenter suggested a minimum 98 percent reduction for positions subject to central clearing or mark-to-market margining,830 while one commenter suggested that there be a higher discount for positions subject to the posting of initial margin.831 820 See, e.g., letters from AIMA I, Fidelity, MFA I, SIFMA AMG II and Vanguard. 821 See letters from MFA I (citing fixed portions of interest rate swaps), MetLife (citing purchased options as well as CDS), ACLI and Ropes & Gray. 822 See letters from MFA I (arguing that the tightening of credit spreads would imply a healthy credit environment) and AIMA; see also meeting with MFA on February 14, 2011. 823 See letter from Vanguard. 824 See letter from MFA I (suggesting the possible use of the LIBOR/Swap rate) and AIMA I. 825 See letter from ISDA I. 826 See letter from SIFMA AMG II. 827 See letters from ACLI. 828 See, e.g., letters from MFA I, SIFMA AMG II and Vanguard. 829 See letters from BG LNG I, Fidelity and ICI I. 830 See letter from ISDA I. 831 See letter from FHLB I (suggesting 90 percent discount for cleared swaps and for uncleared swaps for which initial margin has been posted; VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 Some commenters also stated that there should be a partial discount provided in connection with positions for which mark-to-market margining is done less than daily,832 and that there should be a discount for positions that are margined using security interests or liens.833 On the other hand, one commenter stated that there is no basis for providing any discount for markedto-market positions.834 One commenter requested that the rule language codify language in the Proposing Release as to when a position is subject to daily mark-to-market margining.835 A number of commenters addressed proposed rule language that was intended to clarify that the discount for daily mark-to-market margining would be available even in the presence of thresholds and minimum transfer amounts.836 Two commenters supported the proposed approach in general.837 One commenter specifically supported the proposed 80 percent reduction for positions subject to daily mark-tomarket margining,838 and one commenter specifically supported a reduction for cleared positions.839 Additional issues regarding the potential future exposure test—Some commenters argued that the Commissions should clarify how the categories in the proposed potential future exposure tables would be applied, given how those differ from the proposed ‘‘major’’ categories of swaps and security-based swaps.840 Some commenters raised concerns that the proposed use of an instrument’s ‘‘effective notional’’ amount is ambiguous.841 Commenters also took the position that for purposes of the potential future exposure calculation, notional amounts should be adjusted to reflect delta weighting,842 that the measure of duration for options on swaps should consider whether the underlying swap is cash-settled,843 and that the adopting release should set forth examples of potential future exposure calculations.844 e. Cost Concerns Some commenters emphasized the need to avoid an overbroad major participant definition, 845 and highlighted concerns about being subject to unnecessary regulation.846 f. Additional Issues One commenter suggested there be an explicit presumption against imposing major participant (or dealer) regulation on end-users.847 Some commenters requested that the current uncollateralized exposure test explicitly exclude cleared positions, net in-themoney positions, and fully collateralized out-of-the-money positions,848 and one commenter also supported excluding those positions from the potential future exposure analysis.849 That commenter also supported excluding swaps on government securities from the substantial position analysis.850 One commenter requested confirmation that dealers and major participants would not be required to compute, assist with, or verify computations for counterparties that may be major participants, and also that market participants can enlist thirdparty services to assist in performing the calculations.851 One commenter requested clarification that the proposed focus on uncollateralized exposure does not mean that end-users themselves 842 See alternatively suggesting that posted initial margin be subtracted from the calculated amount). 832 See letters from Fidelity and Canadian Master Asset Vehicle I and Master Asset Vehicle II (‘‘Canadian MAVs’’). 833 See letter from FHLB I (giving as an example swaps collateralized by security interests in real estate, oil or gas interests, or by first liens on financial assets). 834 See letter from Better Markets I; see also letter from AFR (generally opposing use of risk adjustments, but suggesting that any such discounts should be larger for cleared positions). 835 See letter from SIFMA AMG II. 836 See letter from CDEU (stating that the proposal could overstate an entity’s future exposure, and favoring use of the lower of the calculated potential future exposure or the CSA threshold); see also letters from SIFMA AMG II and Vanguard. 837 See letters from ACLI and MetLife. 838 See letter from Vanguard. 839 See letter from Better Markets I. 840 See letters from SIFMA AMG II and Vanguard. 841 See letters from FSR I, SIFMA AMG II and Vanguard. PO 00000 Frm 00071 Fmt 4701 Sfmt 4700 30665 letters from MFA I and Ropes & Gray. letter from MFA I. 844 See id. 845 See joint letter from Representatives Bachus and Lucas. 846 See, e.g., letters from SIFMA AMG II (stating that the commenter’s suggested changes in connection with the substantial position analysis would reduce burdens and costs to market participants, and more closely align the tests with the objectives they are meant to achieve) and ABC/ CIEBA; see also letter from NFPEEU (reserving the right to dispute the cost-benefit analysis associated with the proposed dealer and major participant rules until all relevant Dodd-Frank Act releases could be analyzed as a whole). 847 See letter from CDEU. 848 See letters from ICI I, SIFMA AMG II and Vanguard. 849 See letter from ICI I. 850 See letter from ICI I (noting size of government security market and Federal Reserve control over supply and demand, and stating that the proposed thresholds are ill-suited to address the ‘‘vast’’ government securities market). 851 See letter from ISDA I. 843 See E:\FR\FM\23MYR2.SGM 23MYR2 30666 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations should not demand collateral from dealers.852 3. Final Rules a. Guiding Principles The final rules defining ‘‘substantial position’’ focus on identifying persons whose large swap and security-based swap positions pose market risks that are significant enough that it would be ‘‘prudent’’ to regulate those persons. In developing these rules we have been mindful of the costs associated with regulating major participants, and have considered cost and benefit principles as part of the analysis of what level of swap and security-based swap positions reasonably form the lower bounds for identifying when it would be ‘‘prudent’’ that particular entities be subject to monitoring, management and oversight of entities that may be systemically important or may significantly impact the U.S. financial system.853 The final rules implementing the ‘‘substantial position’’ definition follow the basic approach that the Commissions proposed, including the combined use of current exposure and potential future exposure tests.854 While we have carefully considered the views of commenters who suggested alternative approaches, we have concluded that it is appropriate to adopt the basic approach that was proposed, as described below. • Focus on default-related credit risks. The final rules implement tests that seek to reflect the credit risk that a 852 See letter from FHLB I. the same time, as discussed above in the context of the de minimis exception to the dealer definitions, we are mindful that the benefits of financial regulation cannot be quantified. For example, while the regulation of major participants will comprise one component of Title VII’s comprehensive regulatory framework that should be expected to help lessen the amount and frequency of financial crises, we cannot place a dollar figure on the contribution of major participant regulation to those benefits. In light of those factors, we believe that it would be ‘‘prudent’’ to regulate, as major participants, those persons whose swap or security-based swap positions are large enough to pose a material potential of causing significant counterparty impacts, consistent with the levels set forth in the final rules. The Commissions will further address the comparative costs and benefits associated with regulating major participants in the context of the substantive rules applicable to major participants. 854 As with the proposal, the final rules apply these tests to swap and security-based swap positions in a ‘‘major’’ category. See CFTC Regulation § 1.3(jjj)(1); Exchange Act rule 3a67–3(a). The final rules have been modified from the proposal, however, by removing a reference to ‘‘positions excluded from consideration.’’ We have concluded that this reference is unnecessary because the first statutory major participant test explicitly provides that positions that are subject to the commercial risk hedging and the ERISA hedging exclusions of the first major participant test need not be considered for purposes of that test. mstockstill on DSK4VPTVN1PROD with RULES2 853 At VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 person’s swap or security-based swap positions would pose in the event of default. In arguing that the analysis should consider factors in addition to default-related risks, commenters have noted that certain regulations applicable to major participants address business conduct issues that are distinct from systemic risk issues.855 We nonetheless believe that the statutory definition of ‘‘substantial position’’ indicates that the analysis should focus on default-related credit risks, because a default-related approach is more closely linked to the statutory criteria that the definition focus on entities that are ‘‘systemically important’’ or can ‘‘significantly impact’’ the U.S. financial system than would be an approach that focuses on the potential for disruptive market movements.856 • Failure of multiple entities close in time. The final rules that implement the ‘‘substantial position’’ definition seek to reflect the risks that would be posed by the default of multiple entities close in time. Although one commenter took the view that the purpose of major participant regulation is to prevent the credit exposure of a single person from having a systemic impact,857 we do not believe that the major participant definitions should be construed so narrowly. The events of recent years demonstrate that market stress may lead to the failure and near-failure of multiple entities with large financial positions over a relatively short time period. We do not believe that it would be prudent or well-reasoned to presume that recent history cannot repeat itself, and to assume that future failures of entities with large financial positions will be isolated events. • Aggregate risk. The final rules address the aggregate risk posed by an entity’s swap or security-based swap positions, rather than seeking to focus on principles of concentration (such as by using a threshold that addresses an entity’s largest exposure to an individual counterparty) or on converse principles of interconnection. The statutory ‘‘substantial position’’ definition is specifically written in terms of market risk concerns (i.e., ‘‘systemically important’’ and ‘‘can significantly impact the financial system of the United States’’), and measures of 855 See, e.g., letter from Better Markets I. also believe that the statutory definition should focus on all default-related credit risks associated with swap or security-based swap positions. We do not see a basis for excluding any class of risks (e.g., risks associated with swaps based on government securities) from the analysis. 857 See letter from BlackRock I. 856 We PO 00000 Frm 00072 Fmt 4701 Sfmt 4700 aggregate risk appear to be best geared to reflect this standard.858 • Use of objective, quantitative criteria. The final rules provide for a ‘‘substantial position’’ analysis that is based on objective, quantitative criteria that would permit a market participant to determine which level of swap or security-based swap positions would cause it to be a major participant. Although one commenter has suggested the use of a two-step approach that uses thresholds as a safe harbor and that would be accompanied by a secondlevel determination,859 we do not believe that such an approach would be consistent with the statutory language or with principles of regulatory efficiency.860 Accordingly, a person whose swap or security-based swap positions satisfy the applicable thresholds will be a major participant, with no further layer of review provided.861 b. Current Uncollateralized Exposure Test Consistent with the proposal, the final rules implementing the ‘‘substantial position’’ definition include a test that accounts for the current uncollateralized exposure posed by an entity’s swap or security-based swap positions in a major 858 Moreover, a test that focuses on the concentration of an entity’s swap or security-based swap exposure toward one or a few individual parties potentially poses a tension with the view that interconnections of exposure among multiple parties are important to establishing systemic risk. 859 See letter from BlackRock I. 860 The major participant definitions specifically require that the term ‘‘substantial position’’ be defined ‘‘by rule or regulation’’ via a ‘‘threshold.’’ That language would not appear to anticipate the use of a multi-tier approach that accounts for subjective criteria. In this respect, the major participant definitions may be compared with section 113 of the DoddFrank Act, which authorizes the Financial Stability Oversight Council (‘‘FSOC’’) to provide for a nonbank financial company to be supervised by the Board if the FSOC ‘‘determines that material financial distress at the U.S. nonbank financial company, or the nature, scope, size, scale, concentration, interconnectedness, or mix of the activities of the U.S. nonbank financial company, could pose a threat to the financial stability of the United States.’’ Section 113 further provides that these designations will result from a vote of the FSOC based on a variety of factors. The ‘‘major participant’’ definition does not provide for this type of entity-specific determination, and we believe that the ‘‘major participant’’ definition more appropriately is implemented by objective factors that allow market participants to determine whether they will fall within the definition. 861 In addition, the final rules provide that the ‘‘substantial position’’ analysis that implements the first (and third) major participant test will be based on the ‘‘major’’ categories of swaps and securitybased swaps. Notwithstanding commenter concerns that this approach will require market participants to analyze their swaps and security-based swaps in new ways and will result in additional costs, this focus on ‘‘major’’ categories is dictated by the plain language of the statute. E:\FR\FM\23MYR2.SGM 23MYR2 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations category.862 This provides a measure of the amount of potential risk that an entity would pose to its counterparties if the entity currently were to default.863 As with the proposal, a person would apply this test by examining the positions it maintains with each of its counterparties in a particular major category of swaps or security-based swaps. For each counterparty, the person would determine the dollar value of the aggregate current exposure arising from each of its swap or securitybased swap positions with negative value in that major category by markingto-market using industry standard practices, and deduct from that amount the aggregate value of the collateral the entity has posted with respect to the swap or security-based swap positions.864 The ‘‘aggregate uncollateralized outward exposure’’ would be the sum of those uncollateralized amounts over all counterparties with which the person has entered into swaps or security-based swaps in that major category.865 The final rules implementing this test largely are the same as the rules the Commissions proposed, but with certain modifications to address issues raised by commenters. mstockstill on DSK4VPTVN1PROD with RULES2 i. Measure of Exposure and Valuation of Collateral Consistent with the proposal, the final rules do not prescribe any particular methodology for measuring current exposure or for valuing collateral posted, but instead require the use of industry standard practices.866 In this regard we do not concur with commenter requests that we approve or prescribe particular methodologies, or provide a safe harbor for measures or valuations made in good faith.867 862 CFTC Regulation § 1.3(jjj)(1); Exchange Act rule 3a67–3(b)(2). The final rules contain technical changes from the proposal to clarify the steps entailed by this calculation. 863 See Proposing Release, 75 FR at 80188. 864 As we noted in the Proposing Release, we recognize that there may be operational delays between changes in exposure and the resulting exchanges of collateral, and in general we would not expect that operational delays associated with the daily exchange of collateral would be considered to lead to uncollateralized exposure for these purposes. See Proposing Release, 75 FR at 80189 n.92. Although we are not codifying this principle within the final rules, we will be mindful of the principle when enforcing those rules. 865 CFTC Regulation § 1.3(jjj)(2); Exchange Act rule 3a67–3(b)(2). 866 CFTC Regulation § 1.3(jjj)(2); Exchange Act rule 3a67–3(b)(1). As we noted in the Proposing Release, collateral may be posted to a third-party custodian, directly to the counterparty, or in accordance with the rules of a derivatives clearing organization or clearing agency. See Proposing Release, 75 FR at 80189 n.94. 867 See letters from BlackRock I, Better Markets I and FSR I. VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 Instead, it is appropriate that the final rules provide market participants with the flexibility to use the same methodologies that they use in connection with their business activities. Accordingly, we would expect entities to value current uncollateralized exposure based on the amounts that would be payable if the transaction were terminated. To the extent the measure of exposure or the valuation of collateral is subject to other rules or regulations, we also would expect those measures and valuations for purposes of the major participant calculations to be consistent with those other applicable rules.868 In addition, the ‘‘substantial position’’ analysis may take into account the posting of non-cash collateral to the extent that the posting of such collateral, and the valuation of that collateral, is consistent with industry standard practices or applicable regulation.869 ii. Netting The final rules build upon the proposal with regard to the measure of uncollateralized current exposure in the presence of netting arrangements. In particular, to address commenter concerns these provisions have been modified from the proposal to account for the fact that two counterparties may have multiple netting agreements for which offsets are permitted, and to extend the netting principles to any financial instruments that may be netted for purposes of applicable bankruptcy law (rather than limiting those instruments to swaps, security-based swaps and securities financing transactions). Accordingly, the final rules provide that an entity may calculate its exposure on a net basis by applying the terms of one or more master netting agreements with a counterparty. The entity may account for offsetting positions entered into with that particular counterparty 868 These principles should apply even in the case of valuing illiquid or bespoke positions. Market participants have the flexibility to use commercially reasonable approaches that are consistent with their financial statements, tax calculations and compliance with other regulations. 869 For non-cash collateral to be considered for purposes of these calculations, the collateral must be available for the counterparty’s use if the entity posting the collateral were to default. At a minimum, this would require that the counterparty possess a perfected security interest in that collateral. As we noted in the Proposing Release, while we expect that other regulatory requirements applicable to the valuation of swap or securitybased swap positions and collateral would be relevant to certain calculations relating to major participant status, these rules would not necessarily be relevant for other purposes, such as in the context of capital and margin requirements. See Proposing Release, 75 FR at 80189 n.95. PO 00000 Frm 00073 Fmt 4701 Sfmt 4700 30667 involving swaps or security-based swaps as well as securities financing transactions (consisting of securities lending and borrowing, securities margin lending and repurchase and reverse repurchase agreements), and other financial instruments and agreements that are subject to netting offsets for purposes of applicable bankruptcy law, to the extent consistent with the offsets provided by those master netting agreements.870 These revisions should permit the current uncollateralized exposure test to more accurately reflect the degree of credit risk that an entity poses to its counterparty in the event of default. As discussed in the proposal, these netting provisions apply only to offsetting positions with a single counterparty.871 The provisions do not extend to the market risk offsets associated with an entity’s positions with multiple counterparties, because such offsets would not directly mitigate the risks that an individual counterparty would face in the event of the entity’s default.872 iii. Allocation of Uncollateralized Exposure Following Netting The final rules build upon the proposal by codifying the method, discussed in the Proposing Release, related to the allocation of any uncollateralized exposure that remains following netting and the posting of collateral. This type of allocation can be necessary because, with netting, it otherwise may not be possible to directly attribute residual uncollateralized exposure to a particular major category of swap or security-based 870 CFTC Regulation § 1.3(jjj)(2)(iii); Exchange Act rule 3a67–3(b)(3)(i). This provision provides for netting under the master netting agreement of any instruments, contracts or agreements (including contracts on physical commodities), that would qualify for netting under applicable bankruptcy law. As we noted in the Proposing Release, the proposed rules regarding possible offsets of various positions are for purposes of determining major participant status only. Other rules proposed by the Commissions may address the extent to which, if any, persons such as dealers and major participants may offset positions for other purposes. See Proposing Release, 75 FR at 80189 n.98. As proposed, Exchange Act rule 3a67–3(b)(3)(i) referred to ‘‘security-based swaps (in any swap category)’’; this reference has been revised in the final rule to ‘‘security-based swaps (in any securitybased category).’’ 871 CFTC Regulation § 1.3(jjj)(2)(iii); Exchange Act rule 3a67–3(b)(3)(ii). 872 The fact that positions with third parties do not offset exposure to a particular counterparty was recently highlighted by a decision finding that the Bankruptcy Code does not permit excess collateral held by one creditor to offset amounts that the debtor owed to the creditor’s affiliates. See In re Lehman Brothers Inc., Case No. 08–01420 (JMP) (SIPA), slip op. (Bankr. S.D.N.Y Oct. 4, 2011). E:\FR\FM\23MYR2.SGM 23MYR2 30668 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations swap.873 Some commenters have requested that the final rules codify this method to provide more certainty to market participants.874 Accordingly, the final rules incorporate a formula which, for purposes of the substantial position analysis, provides that the amount of net uncollateralized exposure that is attributable to a particular major category of swap or security-based swap would be allocated pro rata in a manner that compares the amount of the entity’s out-of-the-money positions in that major category to its total out-of-the-money positions in all categories that are subject to the netting arrangements with that counterparty.875 This approach does not require that any collateral be specifically earmarked to particular swaps or security-based swaps, and can be followed so long as collateral is posted based on the net exposure associated with all instruments subject to the applicable netting agreements with that particular counterparty.876 mstockstill on DSK4VPTVN1PROD with RULES2 iv. Application of Current Exposure Test to Cleared, Fully Collateralized or Net In-the-Money Positions Although certain commenters have requested that the current uncollateralized exposure test explicitly exclude swap or security-based swap positions that are cleared, fully collateralized or net in-the-money,877 873 Such allocation would not be necessary, of course, to the extent that an entity has no current uncollateralized exposure to a counterparty following netting and the posting of collateral. 874 See letters from SIFMA AMG II and Vanguard. 875 CFTC Regulation § 1.3(jjj)(2)(iii)(A); Exchange Act rule 3a67–3(b)(4). Under this formula, for example, if an entity’s exposure to a particular counterparty is $120 million after accounting for netting and the posting of collateral, and, subject to netting, the entity has $40 million in out-of-themoney positions in security-based credit derivatives, $90 million in out-of-the-money positions in other security-based swaps, and $120 million in out-of-the money positions in swaps and other instruments subject to the netting agreements, then $19.2 million in net uncollateralized exposure would be attributed to the ‘‘security-based credit derivatives’’ category (equal to $120 million · ($40 million/($40 million + $90 million + $120 million)), and $43.2 million in net uncollateralized exposure would be attributed to the ‘‘other security-based swaps’’ category (equal to $120 million · ($90 million/($40 million + $90 million + $120 million)). 876 Although one commenter suggested that the analysis should further consider whether there are collateral posting requirements that are specific to a particular position, we believe that the test we are adopting is flexible enough to address that possibility. To the extent that the parties’ collateral arrangements provide that collateral be earmarked to particular swap or security-based swap positions, an entity may calculate its potential future exposure with respect to that counterparty with regard to the applicable major category of swaps or securitybased swaps, without accounting for netting across categories or instruments. 877 See letters from ICI I, SIFMA AMG II and Vanguard. VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 the final rules do not provide such exclusions. As we recognized in the Proposing Release, centrally cleared swaps and security-based swaps are subject to mark-to-market margining that would largely eliminate the uncollateralized exposure associated with a position, effectively resulting in the cleared position being excluded from the analysis.878 Also, by definition, fully collateralized positions are not associated with current uncollateralized exposure, and thus would be excluded from the analysis. As such, we do not believe that it would be necessary to explicitly exclude such positions from the analysis.879 Similarly, we do not believe that it is necessary for the rules to explicitly exclude net in-the-money swap or security-based swap positions. If an entity does not have any current uncollateralized exposure to a particular counterparty—after accounting for the entity’s netting agreement with that counterparty and the posting of collateral—then the entity may disregard its positions with that counterparty for purposes of calculating current uncollateralized exposure. Otherwise, it is appropriate to consider the contribution of all swaps or securitybased swaps to current uncollateralized exposure, as determined by the allocation methodology discussed above.880 c. Potential Future Exposure Analysis The ‘‘substantial position’’ analysis also will consider an entity’s ‘‘aggregate potential outward exposure,’’ which would reflect the potential exposure of the entity’s swap or security-based swap positions in the applicable ‘‘major’’ category of swap or security-based swaps, subject to certain adjustments.881 The final rules implementing this test in general follow the proposed approach, but have been revised to address commenter concerns. i. Purpose Underlying the Potential Future Exposure Test As discussed in the proposal, a potential future exposure test addresses 878 See Proposing Release, 75 FR at 80189 n.92. to the extent that such positions are associated with uncollateralized amounts, such as those that arise from thresholds or minimum transfer amounts pursuant to the applicable credit support annex, then those amounts present counterparty risk that should be considered as part of the major participant analysis. 880 Under that allocation approach, if none of the entity’s swap or security-based swap positions in a major category with that counterparty are out-ofthe-money, then none of the current exposure resulting from the netting agreement would be attributed to that major category. 881 CFTC Regulation § 1.3(jjj)(3); Exchange Act rule 3a67–3(c). 879 Moreover, PO 00000 Frm 00074 Fmt 4701 Sfmt 4700 the fact that a sole focus on current uncollateralized exposure could fail to identify risky entities until some time after they begin to pose the level of risk that should subject them to regulation as major participants.882 A potential future exposure test would allow the substantial position analysis to account for this risk by addressing how the value of an entity’s swap or security-based swap positions may move against the entity over time.883 Accordingly, consistent with the proposal, the final rules incorporate a potential future exposure test that seeks to estimate how much the value of swaps or security-based swaps might change against an entity over the remaining life of the contract. Although some commenters took the view that this test should only address potential volatility during the period of time it would take for a non-defaulting party to close out positions and liquidate collateral,884 we believe that it is more appropriate for the analysis to consider the risks that swaps or security-based swap positions pose over the lives of those positions. An exclusive focus on short-term risks would fail to account for the possibility that an entity’s large swap or security-based swap positions can readily produce large losses in adverse market circumstances, potentially leading either to large uncollateralized exposure (if the posting of collateral is not required), or to large collateral calls that may lead to the entity’s default (or to calls for extraordinary action) and that can threaten non-defaulting parties with significant costs and challenges in connection with liquidating and replacing those positions. The analysis should give appropriate weight to those risks. ii. Risk Multipliers Subject to modifications addressed below, the final rules implementing the ‘‘substantial position’’ analysis incorporate a potential future exposure test based on the proposal’s general approach of adjusting notional positions using risk multipliers.885 This approach incorporates and builds upon tests used by bank regulators for the purposes of setting prudential capital.886 Through 882 See Proposing Release, 75 FR at 80188. id. at 80191. 884 See letters from SIFMA AMG II and Vanguard. 885 See CFTC Regulation § 1.3(jjj)(3)(ii)(A)(1); Exchange Act rule 3a67–3(c)(2)(i). 886 See 12 CFR part 3, app. C, section 32 (Office of the Comptroller of the Currency capital adequacy guidelines for banks); 12 CFR part 325, app. D, section 32 (Federal Deposit Insurance Corp. capital adequacy guidelines for banks); 12 CFR part 208, app. F, section 32 (Federal Reserve System capital 883 See E:\FR\FM\23MYR2.SGM 23MYR2 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES2 this methodology, the final rules implement an objective approach that readily can be replicated by market participants. Although some commenters have suggested the use of value-at-risk measures or internal models to evaluate potential future exposure,887 we do not believe that such approaches would be well tailored to be implemented by a range of market participants, or would lead to comparable results across market participants with identical swap or security-based swap portfolios. In adopting this approach, we are mindful of the significance of commenter concerns about the adequacy of the tables that set forth the risk multipliers that would be applied to notional positions. These comments address, among other issues: discontinuities in the tables; the failure to account for whether, and how much, a swap or security-based swap is in-themoney or out-of-the money; the failure of the multipliers applicable to interest rate swaps to distinguish between counterparties who pay floating rates and counterparties who pay fixed rates; the failure of the multipliers in the credit category to account for the volatility of the underlying instrument or the duration of the swap or securitybased swap; the failure of the multipliers for equity and commodity swaps to distinguish between highvolatility and low-volatility stocks and commodities; the adequacy of how the test addresses diversification and correlation; the fact that the approach does not provide for delta weighting of options positions; and the fact that the factors do not distinguish between index and single-name credit default swaps.888 While we acknowledge that it may be possible to develop revised risk multipliers that are more finely tuned to reflect relevant risk factors, at this time we believe that it would be most appropriate to implement the ‘‘substantial position’’ analysis by building upon an existing regulatory approach that is comparatively simpler to implement and leads to reproducible results, rather than seeking to develop a brand new approach.889 adequacy guidelines for banks); 12 CFR part 225, app. G, section 32 (Federal Reserve System capital adequacy guidelines for bank holding companies). 887 See letters from Riverside Risk Advisors and Better Markets I. 888 See, e.g., letters from Riverside Risk Advisors and MFA I. 889 We also are not following a commenter suggestion to incorporate the ‘‘standardized method’’ prescribed as part of the ‘‘Basel II’’ bank capital methodology. See letter from ISDA I. The standardized method relies on counterparty credit ratings provided by external credit rating agencies for purposes of calculating risk-weighted capital VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 The final rules implementing the ‘‘major security-based swap participant’’ definition, however, modify the proposed risk multipliers in response to commenter concerns about how the ‘‘major’’ categories of security-based swaps should be applied to the risk multiplier categories. In particular, the final risk multiplier category for security-based swaps in the ‘‘equity and other’’ category encompasses all security-based swaps that are not credit derivatives, and the final rules eliminate the proposed category for ‘‘other’’ types of security-based swaps.890 iii. Potential Future Exposure Measures for Certain Lower-Risk Positions Consistent with the proposal, the potential future exposure calculation will exclude purchases of options and other positions for which a person has prepaid or otherwise satisfied its payment obligations.891 Also, in response to commenter concerns, the final rules expand on the proposal with regard to capping the potential future exposure associated with certain lowerrisk swap and security-based swap positions. The final rules particularly cap—at the net present value of the unpaid premiums—the potential future exposure associated with positions by which a person buys credit protection using a credit default swap, and positions by which a person purchases an option for which the person retains additional payment obligations under the position.892 This reflects the reduced risk associated with such measurements. See ‘‘International Convergence of Capital Measurement and Capital Standards, A Revised Framework, Comprehensive Version,’’ the Basel Committee on Banking Supervision, June 2006. Incorporating this reliance on credit ratings provided by external credit rating agencies into these final rules would be inconsistent with Section 939A of the Dodd-Frank Act, which required all Federal agencies to review and modify existing regulations ‘‘to remove any reference to or requirement of reliance on credit ratings and to substitute in such regulations such standard of credit-worthiness as each respective agency shall determine as appropriate for such regulations.’’ 890 See Exchange Act rule 3a67–3(c)(2)(i). Aside from making the risk multipliers consistent with the ‘‘major’’ categories of security-based swaps, this change also should allow total return swaps on debt to be subject to the same risk multipliers as total return swaps on equity, rather than causing the debt swaps to be subject to higher multipliers (which may not accurately reflect the comparative risks of those instruments). 891 See CFTC Regulation § 1.3(jjj)(3)(ii)(A)(3)(ii); Exchange Act rule 3a67–3(c)(2)(i)(C). 892 See CFTC Regulation § 1.3(jjj)(3)(ii)(A)(4); Exchange Act rule 3a67–3(c)(2)(i)(D). The proposed rules would have applied this net present value caps only to the purchase of credit protection. The final rules expand this provision by also capping the potential future exposure associated with the purchases of options in which an entity retains payment obligations, to reflect the reduced risk associated with those positions. PO 00000 Frm 00075 Fmt 4701 Sfmt 4700 30669 positions. The final rules do not prescribe a particular discount rate for purposes of this analysis, and market participants instead should use a commercially appropriate discount rate. In addition, to better align the results of the potential future exposure analysis with the risks that a person presents, the final rules have been modified from the proposal to also exclude swap or security-based swap positions for which, pursuant to regulatory requirement, a person has placed in reserve an amount of cash or Treasury securities that is sufficient to pay the person’s maximum possible liability under the position, when the person is prohibited from using that cash or those securities without also liquidating the swap or security-based swap position.893 iv. Adjustments for Netting Consistent with the proposal, and with the bank regulator standards that form the basis for these potential future exposure measures, the final rules provide that an entity may reduce the measure of its potential future exposure in a major category by up to 60 percent to reflect the risk mitigation effects of master netting agreements. We believe that this approach appropriately reflects the risk mitigating attributes of netting on potential future exposure. Moreover, in light of commenter requests for clarification of how these netting provisions would be applied,894 the final rules have been revised from the proposal to provide that the risk reduction associated with netting should be estimated using the same pro rata allocation methodology that will be used to measure current exposure.895 893 CFTC Regulation § 1.3(jjj)(3)(ii)(A)(3)(iii); Exchange Act rule 3a67–3(c)(2)(i)(C)(3). This exclusion of such positions from the major participant analysis may apply, for example, to certain swap or security-based swap positions of insurers where applicable law requires an amount equal to the maximum possible exposure of the insurer be segregated. 894 See letter from SIFMA AMG II. 895 Consistent with the proposal, the effects of netting are to be estimated using the formula: P Net = 0.4 × P Gross + 0.6 × NGR × P Gross. Under that equation, P Net is the potential exposure adjusted for bilateral netting; P Gross is that potential outward exposure without adjustment for bilateral netting; and NGR is the net to gross ratio. The final rule has been revised from the proposal to clarify that the net to gross ratio equals the current exposure associated with the major category as calculated using the pro rata methodology discussed above, divided by what the measure of current exposure in connection with those out-ofthe-money positions would be in the absence of that methodology. Accordingly, for the example set forth in note 875, supra, the NGR for ‘‘security-based credit derivatives’’ and ‘‘other security-based swaps’’ both would equal 0.48 (equal to $19.2 million net E:\FR\FM\23MYR2.SGM Continued 23MYR2 30670 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES2 v. Adjustments for Cleared and Margined Positions The final rules also provide for the measure of potential future exposure to be adjusted in the case of swap and security-based swap positions that are centrally cleared or that are subject to daily mark-to-market margining. This is consistent with the purpose of the potential future exposure test, which is to account for the extent to which the current outward exposure of positions (though possibly low or even zero at the time of measurement) might grow to levels that can lead to high counterparty risk to counterparties or to the markets generally. The practice of the periodic exchange of mark-to-market margin between counterparties helps to mitigate the potential for large future increases in current exposure. Consistent with the proposal, the final rules reflect this ability to mitigate risk by providing that the potential future exposure associated with positions that are subject to daily mark-to-market margining will equal 0.2 times the amount that otherwise would be calculated. However, in response to commenters’ opinions about the riskmitigating effects of central clearing, and the additional level of rigor that clearing agencies may have with regards to the process and procedures for collecting daily margin, the final rules further provide that the potential future exposure associated with positions that are subject to central clearing will equal 0.1 (rather than the proposed 0.2) times the potential future exposure that would otherwise be calculated.896 Although some commenters supported the complete exclusion of cleared positions from the potential future exposure analysis,897 and we are mindful of the risk mitigating attributes of central clearing, we also recognize that central clearing cannot reasonably be expected to entirely eliminate counterparty risk.898 We conclude, exposure divided by $40 million in out-of-themoney positions in the case of ‘‘security-based credit derivatives,’’ or $43.2 million net exposure divided by $90 million in out-of-the-money positions in the case of ‘‘other security-based swaps’’). If an entity has no current exposure to a counterparty following the application of netting arrangements and collateralization, the NGR for those positions would equal zero, and the potential exposure would equal 40 percent of what it would equal otherwise. 896 See CFTC Regulation § 1.3(jjj)(3)(iii)(A); Exchange Act rule 3a67–3(c)(3)(i). The final rules further have been revised to clarify that the 0.1 factor applies to positions cleared by a registered clearing agency or by a clearing agency that has been exempted from registration. 897 See, e.g., letters from MFA I and SIFMA AMG II. 898 Central clearing helps to mitigate counterparty credit risk by improving risk management and, VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 however, that the use of a 0.1 factor (in lieu of the proposed 0.2) would be appropriate for cleared positions, reflecting the strong risk mitigation features associated with central clearing, particularly the procedures regarding the collection of daily margin and the use of counterparty risk limits, while recognizing the presence of some remaining counterparty risk. Moreover, although some commenters opposed any deduction from the measure of potential future exposure for uncleared positions that are margined on a daily basis,899 we believe that the risk-mitigating attributes of daily margining warrant an adjustment given that the goal of the potential future exposure test is to account for price movements over the remaining life of the contract.900 The use of a 0.2 factor also reflects our expectation that the risk mitigation associated with uncleared but margined positions would be less than the risk mitigation associated with cleared positions. While higher or lower alternatives to the 0.1 and 0.2 factors may also be reasonable for positions that are cleared or margined on a daily basis, we believe that the factors of the final rules reasonably reflects the risk mitigating (but not risk eliminating) features of those practices. The final rules also retain and clarify provisions addressing when daily mark-to-market margining occurs for purposes of this discount.901 among other things, mutualizing the risk of counterparty failure. If multiple members of a central counterparty fail beyond the level to which such risk is managed, however, the central counterparty would also be at risk of failure. Cf. Basel Committee on Banking Supervision, Consultative Document, ‘‘Capitalisation of bank exposures to central counterparties,’’ Nov. 25, 2011 (available at: https://www.bis.org/publ/bcbs206.pdf) (proposing that the capital charge for trade exposures to a qualifying central counterparty should carry a low risk weight, reflecting the relatively low risk of default of the qualifying central counterparty). In addition, as we discussed in the Proposing Release, see 75 FR at 80192 n.115, for example, central counterparties that clear credit default swaps do not necessarily become the counterparties of their members’ customers (although even absent direct privity those central counterparties benefit customers by providing for protection of collateral they post as margin, and by providing procedures for the portability of customer positions in the event of a member’s default). As a result, central clearing may not eliminate the counterparty risk that the customer poses to the member, although required mark-to-market margining should help control that risk, and central clearing would be expected to reduce the likelihood that an entity’s default would lead to broader market impacts. 899 See letter from Better Markets I; see also letter from AFR. 900 We do not believe that it is appropriate to have this type of discount when mark-to-market margining is done less than daily, however. 901 We recognize that at times, market participants whose agreements provide for the daily exchange of variation margin in connection with PO 00000 Frm 00076 Fmt 4701 Sfmt 4700 vi. Application of ‘‘Effective Notional’’ Amounts Consistent with the proposal (as well as the rules implementing the de minimis exception to the dealer definitions), the potential future exposure test is based on the ‘‘effective notional’’ amount of the swap or security-based swap when the stated notional is leveraged or enhanced by the structure of the swap or security-based swap.902 Moreover, as discussed in the Proposing Release,903 in the case of positions that represent the sale of an option on a swap or security-based swap (other than the sale of an option permitting the person exercising the option to purchase a credit default swap), we would view the effective notional amount of the option as being equal to the effective notional amount of the underlying swap or security-based swap, and in general we would view the duration used for purposes of the formula as being equal to the sum of the duration of the option and the duration of the underlying swap or securitybased swap.904 swaps or security-based swaps in practice may not exchange collateral daily, if the amounts at issue are relatively small (such as through the use of collateral thresholds and minimum transfer amounts). We do not believe that such practices would be inconsistent with providing a discount for daily margining practices. The proposed rules sought to accommodate those practices by providing that positions would be considered to be subject to daily mark-to-market margining for purposes of the ‘‘uncollateralized outward exposure’’ plus ‘‘potential outward exposure’’ analysis, so long as the total of such thresholds, and the total of such minimum transfer amounts above $1 million are deemed to be ‘‘uncollateralized outward exposure’’ for those purposes. In light of commenter concerns, which indicated that the proposal was not fully clear about the mechanics and purpose of this approach, the relevant rule language has been revised to clarify that this attribution of thresholds and minimum transfer amounts is solely for the purpose of determining whether certain positions are subject to daily mark-to-market margining for purposes of the analysis. In addition, the final rules have been revised from the proposal to provide that the attribution of thresholds as ‘‘uncollateralized outward exposure’’ for these purposes will be reduced by initial margin posted, up to the amount of the threshold. See CFTC Regulation § 1.3(jjj)(iii)(B); Exchange Act rule 3a67–3(c)(3)(ii). 902 As discussed above, this may occur, for example, if the exchange of payments associated with an equity swap is based on a multiple of the return associated with the underlying equity. As is the case for measuring current exposure, the final rules do not prescribe any particular methodology for calculating the notional amount or effective notional amount used in the calculation of potential future exposure, but instead contemplate the use of industry standard practices. 903 See Proposing Release, 75 FR 80192 n.110. 904 The effective notional amount of the underlying instrument is used for these purposes because that amount fairly reflects the basis for measuring the potential counterparty risk associated with the instrument. The sum of the E:\FR\FM\23MYR2.SGM 23MYR2 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations vii. Treatment of Initial Margin or Overcollateralization The final rules retain the proposed approach of not modifying the measure of potential future exposure to reflect collateral that a person has posted to its counterparty in excess of current exposure. Although we recognize that the posting of excess collateral may mitigate the future credit risk that the potential future exposure measure is intended to estimate, that mitigating effect is not certain, and any such mitigation may not reflect the full value of the excess collateral. Moreover, while we believe that the measure of potential future exposure associated with swap or security-based swap positions reasonably estimates the credit risk that may be posed by those positions for purposes of the substantial position analysis, we also recognize that particular positions may prove to pose a far higher amount of credit risk.905 Given how the credit risk associated with a swap or security-based swap position can far exceed the associated measure of potential future exposure, we do not believe that it would be appropriate to offset that measure to account for overcollateralization.906 mstockstill on DSK4VPTVN1PROD with RULES2 d. Thresholds The final rules retain the proposed thresholds for the amount of current uncollateralized exposure and potential future exposure that will cause an entity to be deemed to be a major participant. Accordingly, for a person to have a ‘‘substantial position’’ in a major category of swaps, it would be necessary for that person to have a daily average current uncollateralized exposure of at duration of the option and the underlying instrument is used for these purposes because that sum reflects the length of time of the potential counterparty risk associated with the instrument. At the same time, we agree with a commenter’s view that if the underlying swap or security-based swap is cash settled, the calculation of duration will only include the duration of the option, and not the duration of the swap, because counterparty exposure would exist only until the option expiration date. See letter from MFA I. 905 For example, if a person writes a CDS that provides $10 billion in protection on a reference entity, with the CDS being subject to daily markto-market margining, then for purposes of the substantial position analysis that CDS would be associated with a potential future exposure measure of no more than $200 million (reflecting the 0.1 conversion factor and the additional 0.2 multiplier for margined positions), even before accounting for netting. Yet if the reference entity were to default, the writer of the CDS could pose up to $10 billion in credit risk to its counterparty. 906 However, as discussed above, see note 901, supra, initial margin may be considered when determining if a collateral threshold is to be attributed to current uncollateralized exposure for purposes of determining whether certain positions are subject to daily mark-to-market margining for purposes of the substantial position analysis. VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 least $1 billion (or $3 billion for the rate swap category), or a daily average current uncollateralized exposure plus potential future exposure of $2 billion (or $6 billion for the rate swap category).907 To have a ‘‘substantial position’’ in a major category of security-based swaps, it would be necessary for the person to have a daily average current uncollateralized exposure of at least $1 billion, or a daily average current uncollateralized exposure plus potential future exposure of at least $2 billion.908 As the Proposing Release noted, the proposed thresholds sought to reflect: (i) The financial system’s ability to absorb losses of a particular size; (ii) the recognition that it would not be appropriate for the substantial position test to encompass entities only after they pose significant risks to the market through their swap or security-based swap activity; and (iii) the need to account for the possibility that multiple market participants may fail close in time.909 While some commenters took the position that the proposed thresholds were inappropriately low, those commenters did not present empirical data or analysis in support of that view. Moreover, the Commissions do not concur with the suggestion 910 that the major participant definitions can reasonably be read to require that we defer this rulemaking until we have gathered additional data. Instead, the definitions direct us to set a standard that is ‘‘prudent,’’ which is what we have sought to do. Some commenters who supported an increase in the proposed thresholds attempted to support their positions via analogy to past events, with the most significant of these being an analogy to AIG Financial Products (‘‘AIG FP’’).911 907 CFTC Regulation § 1.3(jjj)(1). Act rule 3a67–3(a). 909 As discussed above, we do not believe it would be prudent to presume that entity failures will be separated in time during periods of financial stress. 910 See letters from BlackRock I and CCMR I. 911 See letter from ABC/CIEBA. One commenter’s analogy to Enron also is unpersuasive. See letter from BG LNG I. In particular, the $18.7 billion in Enron derivatives exposure cited by that commenter does not account for collateral posted in connection with those positions. Also, the market impact of Enron’s bankruptcy was substantially mitigated by the sale of Enron’s derivatives trading arm to a third party. Moreover, although one commenter generally alluded to corporate financial losses in the derivatives markets that exceeded the proposed $1 billion and $2 billion thresholds, see letter from NCGA/NGSA II, the relevant question does not focus on losses that market participants have incurred, but instead focuses on what degree of credit risk to counterparties in the swap and security-based swap markets presents such a potential to cause significant market impact that it 908 Exchange PO 00000 Frm 00077 Fmt 4701 Sfmt 4700 30671 The analogy to AIG FP 912 actually argues against an increase in these thresholds, however, particularly given that the credit derivative portfolio that significantly contributed to the liquidity problems that AIG FP faced amounted to $72 billion in notional amount.913 Under the final rules, in the presence of central clearing or daily marking to market it would take a credit derivative portfolio in excess of that amount to trigger the potential future exposure threshold under the ‘‘substantial position’’ analysis.914 This indicates that the thresholds are not inappropriately low, particularly given our view that the major participant definition is intended to encompass entities before their swap or securitybased swap positions pose significant market threats.915 Conversely, while would be prudent to regulate persons who pose that degree of credit risk in connection with their swap or security-based swap positions. 912 Our discussion of how the major participant analysis may apply to an entity that has a portfolio of a size equivalent to that of AIG FP should not be read to imply that a person may engage in swap and security-based swap activities akin to those of AIG FP without registering as a swap dealer or security-based swap dealer. 913 See, e.g., Congressional Oversight Panel, The AIG Rescue, Its Impact on Markets, and the Government’s Exit Strategy 22–24 (2010) (discussing how the risk in AIG’s CDS business largely was the result of a ‘‘multi-sector’’ CDO book that amounted to $72 billion notional as of September 2008, and how the losses to AIG were driven by 125 of the roughly 44,000 contracts entered into by AIG FP). 914 For cleared security-based credit default swaps (in which we assume daily margining requirements result in no current uncollateralized exposure) achieving $2 billion of potential future exposure would require writing $200 billion notional of credit default swap protection (reflecting the 0.10 multiplier in the risk adjustment tables, and the additional 0.10 multiplier for positions that are cleared). Similarly, it would take a $100 billion notional portfolio of uncleared but marked-to-market security-based credit default swaps to meet that same threshold (reflecting the 0.20 multiplier for positions that are subject to daily mark-to-market margining). The total might be even higher if such instruments were subject to counterparty netting agreements. Even in the absence of clearing or daily mark-tomarket margining, it would take a minimum $20 billion notional portfolio of written protection on credit (reflecting the 0.10 multiplier in the risk adjustment tables) to meet the $2 billion potential future exposure threshold. Accounting for netting (which can reduce potential future exposure measures by up to 60 percent) could materially increase that required amount. 915 The case of Long-Term Capital Management (‘‘LTCM’’) also is instructive in connection with the current exposure thresholds of the major participant analysis. Had LTCM failed, its top 17 counterparties would have suffered estimated total losses of between $3 and $5 billion. See President’s Working Group on Financial Markets, Hedge Funds, Leverage, and the Lessons of Long-Term Capital Management (April 1999) at 17 (https:// www.treasury.gov/resource-center/fin-mkts/ Documents/hedgfund.pdf). The government acted in connection with LTCM because the rushed close- E:\FR\FM\23MYR2.SGM Continued 23MYR2 30672 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations analysis.918 In the Proposing Release, we preliminarily concluded that positions that hedge or mitigate a person’s commercial risk may qualify for this exclusion regardless of whether the entity is financial or non-financial in nature.919 That conclusion in part was prompted by the fact that the statutory e. Additional Issues major participant definitions do not explicitly make the exclusion The final rules applying the unavailable to financial entities; in ‘‘substantial position’’ analysis and the contrast to the Title VII exceptions from major participant definitions generally mandatory clearing requirements in apply to all types of swaps or securityconnection with hedging commercial based swaps that a person maintains. Although one commenter suggested that risk,920 which explicitly are unavailable to financial entities.921 The conclusion swaps on government securities should be excluded from the analysis, the rules also was prompted by the presence of the third major participant test—which will not provide such an exclusion. To specifically applies the substantial the extent that a person presents credit position analysis to certain non-bank risk as a result of swaps referencing financial entities but (unlike the first government securities, there is no basis test) does not exclude commercial risk for disregarding that risk when hedging positions from the analysis.922 determining whether the person is a In the Proposing Release, we also major participant. preliminarily concluded that the In addition, in light of one question of whether an activity is commenter’s concern,916 the Commissions believe that it is important commercial in nature should not be to emphasize that these rules should not determined solely by a person’s organizational status as a for-profit, nonbe interpreted to deter end-users from requesting margin from dealers or major profit or governmental entity, but instead should depend on whether the participants who are their underlying activity is commercial in counterparties to swaps or securitynature.923 based swaps. The proposal did not preclude the Also, in light of a point raised by exclusion from being available in another commenter,917 the Commissions connection with hedges of a person’s note that these rules implementing the ‘‘financial’’ or ‘‘balance sheet’’ risks. In major participant definitions do not addition, the proposal solicited place any independent calculation or comment as to whether the exclusion other obligations upon counterparties to should extend to activities in which a potential major participants, and that person hedges an affiliate’s risk. the rules do not preclude a potential b. Proposed Definition Under the CEA major participant from seeking the assistance of a third party to perform the Exception relevant calculation. The proposed interpretation of ‘‘hedging or mitigating commercial risk’’ C. ‘‘Hedging or Mitigating Commercial for purposes of the CEA’s definition of Risk’’ ‘‘major swap participant’’ premised the 1. Proposed Approach exclusion on the principle that swaps necessary to the conduct or management a. General Availability of the Proposed Exclusion additional data and analysis may warrant a reduction of these thresholds in the future, commenters who supported a reduction in those thresholds have not persuaded us that the proposed thresholds should be lowered. mstockstill on DSK4VPTVN1PROD with RULES2 The first test of the major participant definitions excludes positions held for ‘‘hedging or mitigating commercial risk’’ from the substantial position out of LTCM’s positions would have affected other market participants, and the spread of losses would have led to market uncertainty, likely causing a number of credit and interest rate markets to experience extreme price moves and possibly not function for a period of time. See Statement by William J. McDonough, President Federal Reserve Bank of New York before the Committee on Banking and Financial Services U.S. House of Representatives (October 1, 1998) (https:// www.newyorkfed.org/newsevents/speeches_archive/ 1998/mcd981001.html). 916 See letter from FHLB I. 917 See letter from ISDA I. VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 918 See CEA section 1a(33)(A)(i)(I); Exchange Act section 3(a)(67)(A)(i)(I). 919 See Proposing Release, 75 FR at 80194. 920 See CEA section 2(h)(7)(A); Exchange Act section 3C(g)(1)(B). 921 As we discussed in the Proposing Release, had the Dodd-Frank Act intended the phrase ‘‘hedge or mitigate commercial risk’’ to apply only to activities of, or positions held by, non-financial entities, it would not have been necessary for the mandatory clearing exceptions to include additional provisions generally restricting the availability of the exceptions to non-financial entities. See Proposing Release, 75 FR at 80194. 922 As we discussed in the Proposing Release, the third statutory major participant test would be redundant if the hedging exclusion in the first major participant test were entirely unavailable to financial entities. See Proposing Release, 75 FR at 80194 n.125. 923 See Proposing Release, 75 FR at 80194. PO 00000 Frm 00078 Fmt 4701 Sfmt 4700 of a person’s commercial activities should not be included in the calculation of the entity’s substantial position.924 The CFTC noted first that the phrase ‘‘hedging or mitigating commercial risk’’ as used with respect to the major swap participant definition is virtually identical to Dodd-Frank provisions granting an exception from the mandatory clearing requirement to nonfinancial entities that are using swaps to hedge or mitigate commercial risk.925 Also noted was that although only nonfinancial entities that use swaps or security-based swaps to hedge or mitigate commercial risk generally may qualify for the clearing exemption, no such statutory restriction applies with respect to the exclusion for hedging positions in the first test of a major participant. We therefore concluded that positions established to hedge or mitigate commercial risk may qualify for the exclusion, regardless of the nature of the entity—i.e., whether or not the entity is financial (including a bank) or non-financial.926 The CFTC preliminarily believed that whether a position hedges or mitigates commercial risk should be determined by the facts and circumstances at the time the swap is entered into, and should take into account the entity’s overall hedging and risk mitigation strategies. However, the swap could not be held for a purpose that is in the nature of speculation, investing or trading. We anticipated that a person’s overall hedging and risk management strategies would help inform whether or not a particular position is properly considered to hedge or mitigate commercial risk. Further, the exclusion under the Proposing Release included swaps hedging or mitigating any of a person’s business risks, regardless of the 924 The scope of the proposed exclusion is based on our understanding that when a swap or securitybased swap is used to hedge a person’s commercial activities, the gains or losses associated with the swap or security-based swap itself will generally be offset by losses or gains in the person’s commercial activities, and hence the risks posed by the swap or security-based swap to counterparties or the industry will generally be mitigated. 925 See CEA section 2(h)(7)(A); Exchange Act section 3C(g)(1)(B) (exception from mandatory clearing requirements when one or more counterparties are not ‘‘financial entities’’ and are using swaps or security-based swaps to ‘‘hedge or mitigate commercial risk’’). 926 The presence of the third major participant test suggests that financial entities generally may not be precluded from taking advantage of the hedging exclusion in the first test. The third test, which does not account for hedging, specifically applies to non-bank financial entities that are highly leveraged and have a substantial position in a major category of swaps or security-based swaps. That test would be redundant if the hedging exclusion in the first major participant test were entirely unavailable to financial entities. E:\FR\FM\23MYR2.SGM 23MYR2 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES2 swap’s status under accounting guidelines or the bona fide hedging exemption. c. Proposed Definition Under the Exchange Act Exception For purposes of the Exchange Act’s ‘‘major security-based swap participant’’ definition, the proposed rule defining ‘‘hedging or mitigating commercial risk’’ would require that a security-based swap position be ‘‘economically appropriate’’ to the reduction of risks in the conduct and management of a commercial enterprise, where those risks arise from the potential change in the value of assets, liabilities and services connected with the ordinary course of business of the enterprise.927 The Proposing Release stated that the SEC preliminarily planned to interpret the concept of ‘‘economically appropriate’’ based on whether a reasonably prudent person would consider the security-based swap to be appropriate for managing the identified commercial risk. It further stated that the SEC also preliminarily believed that for a security-based swap to be deemed ‘‘economically appropriate’’ in this context, it should not introduce any new material quantum of risks (i.e., it could not reflect over-hedging that could reasonably have a speculative effect) and it should not introduce any basis risk or other new types of risk (other than the counterparty risk that is attendant to all security-based swaps) more than reasonably necessary to manage the identified risk.928 The proposed rules further provided that the security-based swap position could not be held for a purpose that is in the nature of speculation or trading— a limitation that would make the exclusion unavailable to security-based swap positions that are held intentionally for the short term and/or with the intent of benefiting from actual or expected short-term price movements or to lock in arbitrage profits, including security-based swap positions that hedge other positions that themselves are held for the purpose of speculation or trading.929 The proposal also provided that a security-based swap position could not be held to hedge or mitigate the risk of another securitybased swap position or swap position unless that other position itself is held for the purpose of hedging or mitigating commercial risk.930 Finally, the proposal would have conditioned the 927 See proposed Exchange Act rule 3a67–4(a). Proposing Release, 75 FR at 80195 n.129. 929 See proposed Exchange Act rule 3a67–4(b)(1), and Proposing Release, 75 FR at 80195 n.131. 930 See proposed Exchange Act rule 3a67–4(b)(2). 928 See VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 entity’s ability to exclude these securitybased swap positions on the entity engaging in certain specified activities related to documenting the underlying risks and assessing the effectiveness of the hedge in connection with the security-based swap positions.931 2. Commenters’ Views a. In General Several commenters generally supported the broad concepts underlying the proposed rules for identifying hedges of commercial risk, and particularly supported the proposed use of an ‘‘economically appropriate’’ standard instead of the ‘‘highly effective’’ standard that is used to identify hedges for accounting purposes.932 On the other hand, one commenter stated that the definition should incorporate all manner of risks associated with commercial operations, including interest rate and currency risks, risks from incidental activities to commercial activities and risks from financial commodities.933 One commenter further stated that the definition should encompass positions that facilitate asset optimization and dynamic hedging.934 Commenters further stated that the exception should include any position taken as part of a bona fide risk mitigation strategy,935 and that Congress included ‘‘mitigation’’ in the exception for the purpose of covering risk reduction strategies that may not clearly be hedges but mitigate risk.936 Some commenters also criticized the Proposing Release’s position equating the terms ‘‘hedging’’ and ‘‘mitigating.’’ 937 One commenter also expressed concern that entities would find it difficult to analyze their positions with respect to the Proposing Release’s statement, in the context of the Exchange Act definition, that ‘‘economically appropriate’’ securitybased swaps would not add a new quantum of risk.938 Conversely, some commenters suggested that the proposed interpretation was too broad,939 and that 931 See proposed Exchange Act rule 3a67–4(c). letters from ACLI, Barnard, CDEU, COPE I, EEI/EPSA, FSR I, ISDA I, Kraft, MetLife, NAIC, Philip Morris International Inc. (‘‘Philip Morris’’) and Utility Group. 933 See letter from CDEU. 934 See letter from Peabody. 935 See letter from ISDA I. 936 See letter from CDEU. 937 See letters from APG, CDEU and ISDA I. 938 See letter from SIFMA AMG II. 939 See letters from AFR and AFSCME. The CFTC also received submissions of a substantially identical letter from approximately 193 individuals and small businesses urging the CFTC to define 932 See PO 00000 Frm 00079 Fmt 4701 Sfmt 4700 30673 a broad interpretation could allow evasion,940 or permit corporate end users to accumulate very large positions without becoming major swap participants.941 One commenter stated that to include ‘‘financial risks’’ within the exclusion’s scope would be improper because a ‘‘commercial risk’’ is one that is inherent in a person’s commercial activities, while interest rate and currency risks arise from choices about how a person structures and finances its operations.942 Some commenters stated that the rule should not include hedging of financial risks because Congress deleted the reference in an earlier version of the Dodd-Frank Act to hedging of ‘‘balance sheet risk.’’ 943 One commenter urged that we consider using accounting hedge treatment or the bona fide hedging exemption as guideposts for determining the availability of the exclusion.944 Commenters also raised concerns about differences between the proposed approaches under the CEA and Exchange Act definitions of the terms.945 One commenter suggested that the definition should be expanded to include as commercial risks the risks faced by government entities because their need to manage risk is no different than the need of commercial firms.946 Additional commenters suggested that commercial risk be interpreted to include risks faced by non-profit firms.947 Some commenters also supported modification of the rule text for specific purposes such as including risks from ‘‘transmitting’’ to cover activities of electricity companies,948 to encompass risks ‘‘arising from’’ an asset rather than just risks arising from changes in value commercial risk narrowly to include only risks arising from physical commodity price fluctuations, and not financial risks, and to construe the exception for captive finance companies narrowly. See, e.g., letter from Needham Oil & Air, LLC. In addition, the CFTC received submissions from approximately 535 individuals of a different letter, which also urged the CFTC to define commercial risk narrowly. See, e.g., letter from Christie Hakim. 940 See letters from Sen. Carl Levin (‘‘Senator Levin’’), Commodity Markets Oversight Coalition (‘‘CMOC’’) and Greenberger and meeting with MFA on February 14, 2011. 941 See meeting with SIFMA AMG on February 4, 2011. 942 See meeting with AFR and Better Markets on March 17, 2011. 943 See letters from AFR and CMOC, and meeting with Duffie on February 2, 2011. 944 See letter from Senator Levin. 945 See letters from Senator Levin, NAIC and SIFMA AMG II. 946 See letter from Milbank, Tweed, Hadley & McCloy LLP (‘‘Milbank’’). 947 See letters from CDEU and NFPEEU. 948 See letter from Edison Int’l. E:\FR\FM\23MYR2.SGM 23MYR2 30674 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations of the asset,949 and to encompass the use of swaps by structured finance special purpose vehicles to hedge interest rate risk in structured financing.950 b. Availability of Exclusion to Financial Entities Several commenters supported making the exclusion available to financial companies.951 Some commenters further stated that there should be no special limits on financial entities with regard to the exclusion,952 and that commercial risk should be defined broadly to include all of the commercial activities of a person, whether or not those activities relate to financial or non-financial commodities.953 Two commenters discussing the use of swaps by insurance companies stated that making the exclusion available to financial companies is consistent with CFTC practice in the futures markets, that there is no fundamental difference in how an insurance company or a commercial enterprise uses swaps to reduce its risk, and that commercial risk encompasses financial risk.954 In addition, these commenters noted that insurance regulators allow insurance companies to use swaps to hedge risk.955 On the other hand, some commenters opposed allowing financial entities to avail themselves of the exclusion, arguing that there is no benefit from allowing a financial firm to avoid major participant regulation through the hedging exclusion,956 that the exclusion would allow financial companies to engage in risky trades,957 and that the exclusion should be narrowly interpreted to cover hedging of only risks related to products.958 c. Hedging Risks of Affiliates and Third Parties Some commenters expressed support for allowing persons to take advantage of the hedging exclusion when they use swaps to hedge the commercial risks of 949 See mstockstill on DSK4VPTVN1PROD with RULES2 950 See letter from Milbank. letter from American Securitization Forum (‘‘ASR’’). 951 See letters from ACLI, American Express Company (‘‘Amex’’), California State Teachers’ Retirement System (‘‘CalSTRS’’) dated Feb. 28, 2011 (‘‘CalSTRS I’’), ISDA I, MetLife, NAIC and Peabody. 952 See letters from Amex, CalSTRS I and Peabody. 953 See letter from Amex. 954 See letters from ACLI and MetLife. 955 Id. 956 See letter from Senator Levin (further highlighting the need to add strict standards and controls to prevent evasion). 957 See letters cited in note 939, supra. 958 See letter from AFR. VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 affiliates or third parties. Some commenters suggested that a person that aggregates and hedges risk within a corporate group should be allowed to use the exclusion despite the fact that it is the affiliates’ risks that are hedged.959 One commenter further stated that providers of risk management services should be allowed to take advantage of the exclusion because they are hedging commercial risk on behalf of their clients.960 One commenter, on the other hand, stated that the exclusion should be read narrowly for captive finance companies because the hedging entity may have to liquidate positions rapidly without access to affiliate’s funds.961 d. Hedge Effectiveness and Documentation Many commenters suggested that the rule should not test hedge effectiveness, explaining that requiring demonstration of hedge effectiveness would impose a subjective standard and would not reduce systemic risk.962 In this regard, some commenters that addressed the proposed procedural requirements in the Exchange Act definition argued that these procedures would place unnecessary regulatory burdens on entities not regulated under the DoddFrank Act.963 Conversely, one commenter that supported testing hedge effectiveness stated that the subdivided parts of a hedge should line up exactly with the subdivided parts of the risk.964 Some commenters agreed that the relationship between hedging and risk should be documented. One commenter expressed the view that documentation would facilitate audits.965 Others took the view that a person should be required to demonstrate that the hedge does not create additional risk, that the risk may be hedged by swaps, and that there is a link between the swap and the risk.966 Several commenters suggested that once initiated, a hedge should not be retested over time, regardless of whether the position continues to serve a hedging purpose.967 Other commenters 959 See letters from CDEU, EDF Trading, Kraft, Metlife and Philip Morris. 960 See letter from EDF Trading. 961 See meeting with Duffie on February 2, 2011. 962 See letters from EEI/EPSA and EDF Trading; see also letters from CDEU, Kraft Metlife, NRG Energy and Philip Morris (that such a test would be overly prescriptive). 963 See letters from FSR I and SIFMA AMG I. 964 See letter from Better Markets I. 965 See letter from Metlife (but opposing ongoing evaluation of hedge effectiveness). 966 See letters from AFR and Senator Levin. 967 See letters from CDEU, EDF Trading, EEI/ EPSA, Kraft, Metlife, NRG Energy and Philip Morris. PO 00000 Frm 00080 Fmt 4701 Sfmt 4700 disagreed, stating that a position that is no longer a hedge should not be covered by the exclusion.968 e. Swaps That Hedge Positions Held for Speculative, Investment or Trading Purposes Many commenters took the view that swaps or security-based swaps used to hedge positions held for speculative, investment or trading purposes should qualify as hedges of commercial risk.969 A few commenters stated that speculation, investment and trading are fundamental to commercial activity, and thus cannot be differentiated from other types of commercial activity.970 Other commenters suggested the exclusion should cover swap positions that hedge other swap or security-based swap positions that are not themselves hedging positions.971 Some commenters asserted that trading is different from speculating (taking an outright view on market direction) and investing (entering into a swap for appreciation in value of the swap position), and that swaps held for ‘‘trading’’ should be able to qualify for the exclusion.972 Some commenters requested that the definition under the CEA clarify how swaps that qualify as bona fide hedges are treated for the major swap participant definition if the underlying position had a speculative, investment or trading purpose,973 and clarify that while the hedging exclusion would not apply to swap positions that hedge other swap positions that are held for speculation or trading, the hedging provision would apply to swap positions that hedge other non-swap positions held for speculation or trading.974 Commenters also requested that the final rules provide that the hedging exclusion be available for physical positions in exempt or agricultural commodities and arbitrage positions relating to price differences between physical commodities at 968 See letters from Better Markets I and Senator Levin. 969 See letters from BG LNG II, COPE I, EPSA, FSR I, Metlife, Peabody, Vitol and WGCEF dated February 22, 2011 regarding the major swap participant definition (‘‘WGECF II’’), and meeting with Bunge; see also letter from ISDA I (taking the view that swaps and security-based swaps used to hedge speculative positions should qualify as hedges and stating that failure to treat them as hedges would ‘‘invariably result in there being more unhedged speculative risk in the market’’). 970 See letters from Vitol and WGCEF II and meeting with Bunge. 971 See letters from BG LNG II, FSR I, ISDA I and Metlife. 972 See letters from COPE I, EPSA and Peabody. 973 See letters from Vitol and WGCEF dated June 3, 2011 regarding the major swap participant definition (‘‘WGECF VI’’). 974 See letter from BG LNG II. E:\FR\FM\23MYR2.SGM 23MYR2 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations different locations.975 One commenter, on the other hand, suggested that even swap positions that hedge other swap positions which are not hedging positions should be treated as hedging commercial risk because they are risk reducing.976 Four commenters took the position that swaps held for a purpose that is in the nature of speculation, investing or trading should not qualify as hedges of commercial risk.977 One commenter pointed out that experience has shown that market participants sometimes inaccurately characterize positions as hedges (e.g., the inaccurate characterization occurs because the nature of positions change over time), and that excluding swap positions that hedge speculative, investment or trading positions would be especially inappropriate for financial firms that frequently use swaps to speculate, invest or trade.978 One commenter stated that any swap position hedging another swap position could never be considered to be hedging commercial risk because the second swap is only adjusting the first swap position, meaning that neither swap would be congruent with risk reduction.979 Another commenter stated that the hedging exclusion should not cover any swap hedging a speculative position.980 3. Final Rules—General Availability of the Exclusions As with the proposed rules, the final CEA and Exchange Act rules implementing this exclusion are different in certain regards to reflect the different ways that swaps and securitybased swaps may be expected to be used to hedge commercial risk, as well as differences in existing regulations under the CEA and the Exchange Act. Notwithstanding these differences, the two rules follow parallel approaches and address certain key issues in similar ways. mstockstill on DSK4VPTVN1PROD with RULES2 a. Availability to Financial Entities Consistent with the position we took in the Proposing Release, the final rules with regard to both major participant definitions do not foreclose financial entities from being able to take advantage of the commercial risk hedging exclusion in the first major participant test. This conclusion in part is guided by the fact that the statutory 975 See letters from BGLNG II and WGCEF VI. letters from MetLife. 977 See letters from AFR, Better Markets I and Senator Levin and meeting with Duffie on February 2, 2011. 978 See letter from Senator Levin. 979 See letter from Better Markets I. 980 See meeting with Duffie on February 2, 2011. 976 See VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 text implementing this hedging exclusion does not explicitly foreclose financial entities from taking advantage of the exclusion—in contrast to Title VII’s exceptions from mandatory clearing requirements for commercial risk hedging activities. The conclusion also results from the need to avoid an interpretation that would cause the third major participant test to be redundant.981 In reaching this conclusion, we recognize that some commenters stated that there would be no benefit from allowing financial firms to avoid regulation as a major swap participant through the hedging exclusion, and that the exclusion should cover only risks related to non-financial commercial activities, or else the exclusion would allow financial companies to engage in risky transactions.982 We believe that not allowing the exclusion to cover swaps or security-based swaps used for speculation or trading (or investments, in the case of swaps) will be sufficient to limit financial entities’ ability to engage in risky transactions. We also are not persuaded that ‘‘commercial risk’’ should be limited to only risks related to non-financial activities. We nonetheless recognize the significance of concerns that financial entities may seek to depict speculative positions as hedges to take advantage of the exclusion. We also are mindful of the need to give appropriate meaning to the term ‘‘commercial risk’’ within the exclusion. We believe that the standard set forth in the final rules, including the provisions that make the exclusions unavailable to swap or security-based swap positions of a speculative or trading nature (or investment purposes, in the case of swaps), apply the statutory test in a manner that appropriately addresses those other concerns. As discussed below, those standards limit the ability of financial entities to take advantage of the exclusion.983 981 While we recognize that commenters have identified policy reasons as to why financial entities should be entirely excluded from being able to take advantage of the hedging exclusion, we continue to believe the language of the major participant definitions dictates a contrary approach. 982 See letters from AFR and Senator Levin. 983 We also do not believe that the size of an entity or an entity’s position is determinative of whether a position hedges commercial risk. Moreover, given that the major participant definitions implicitly require large swap or security-based swap positions as triggers, a rule that made the hedging exclusion unavailable to entities with large positions could negate the statutory hedging exclusion. PO 00000 Frm 00081 Fmt 4701 Sfmt 4700 30675 b. Availability to Non-Profit and Governmental Entities Under the final rules, a person’s organizational status will not determine the availability of this hedging exclusion. The exclusion thus may be available to non-profit or governmental entities, as well as to for-profit entities, if the underlying activity to which the swap or security-based swap relates is commercial in nature. c. Hedges of ‘‘Financial’’ or ‘‘Balance Sheet’’ Risks Under the final rules, the exclusion is available to positions that hedge ‘‘financial’’ or ‘‘balance sheet’’ risks. While we recognize that some commenters oppose the exclusion of those positions,984 we nonetheless believe that the exclusion would be impermissibly narrow if it failed to extend to the ‘‘financial’’ or ‘‘balance sheet’’ risks that entities may face as part of their commercial operations, given that those types of risks (e.g., interest rate and foreign exchange risks) may be expected to arise from the commercial operations of non-financial end-users of swaps and security-based swaps. We do not believe the exclusion was intended to address those risks differently from other commercial risks, such as risks associated with the cost of physical inputs or the price received for selling products.985 d. Hedging on Behalf of an Affiliate The final rules further provide that the exclusion is not limited to the hedging of a person’s own risks, but also would extend to the hedging of the risks of a person’s majority-owned affiliate.986 984 See notes 942 and 943, supra. it is questionable as to what types of security-based swap positions—if any—would fall within the exclusion for purposes of the ‘‘major security-based swap participant’’ definition if the exclusion did not extend to hedges of ‘‘financial’’ or ‘‘balance sheet’’ risks. Security-based swaps such as single-name credit default swaps and equity swaps would not appear amenable to hedging a commercial entity’s non-financial risks, such as price risks associated with non-financial inputs or sales. We do not believe that it would be appropriate to interpret the exclusion in such a way as to make it a nullity in the context of the ‘‘major security-based swap participant’’ definition. 986 See CFTC Regulation § 1.3(kkk)(1)(i); Exchange Act rule 3a67–4(a)(1). For these purposes—consistent with the standards regarding the application of the dealer and major participant definitions to inter-affiliate swaps and security based swaps, see parts II.C and IV.G—we would view the counterparties to be majority-owned affiliates if one party directly or indirectly holds a majority ownership interest in the other, or if a third party directly or indirectly holds a majority interest in both, based on holding a majority of the equity securities of an entity, or the right to receive upon dissolution or the contribution of a majority of the capital of a partnership. See note 348, supra. 985 Moreover, E:\FR\FM\23MYR2.SGM 23MYR2 30676 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations This approach reflects the fact that a corporate group may use a single entity to face the market to engage in hedging activities on behalf of entities within the group. In our view, it would not be appropriate for the swap or securitybased swap positions of the marketfacing entity to be encompassed within the first major participant test if those same positions could have been excluded from the analysis if entered into directly by the affiliate.987 Of course, the exclusion will only be available to the market-facing entity if the position would have been subject to the exclusion—e.g., not for a speculative or trading purpose—had the affiliate directly entered into the position. 4. Final Rules—‘‘Major Swap Participant’’ Definition Under the CEA mstockstill on DSK4VPTVN1PROD with RULES2 a. In General The general scope of the rule regarding ‘‘hedging or mitigating risk’’ will be adopted substantially as proposed.988 The CFTC, however, is adopting CFTC Regulation § 1.3(kkk) with a modification to paragraph (1)(iii) to include a reference to qualified hedging treatment for positions meeting Government Accounting Standards Board (‘‘GASB’’) Statement 53, Accounting and Financial Reporting for Derivative Instruments. The CFTC believes that this minor modification to CFTC Regulation § 1.3(kkk) is necessary in order to include swaps that qualify for hedging treatment issued by GASB.989 As noted above, the CFTC will not prohibit financial companies from using the hedging exclusion because the exclusion for positions held for hedging or mitigating commercial risk set forth 987 The exclusion, however, would not be available to the extent that a person enters into swaps or security-based swaps in connection with the hedging activities of an unaffiliated third party. Such activities, moreover, may indicate that the person is acting as a swap dealer or security-based swap dealer. 988 The final rule text of CFTC Regulation § 1.3(kkk)(2) has been revised to include the conjunction ‘‘and’’ between clauses (i) and (ii). In the proposed text of this rule, there was no conjunction between these two clauses, while the conjunction ‘‘and’’ was used in the parallel rule, § 240.3a67–4(b), under the Exchange Act. Thus, the revision of the final rule text conforms the CEA rule to the Exchange Act rule. Also, the final rule text of CFTC Regulation § 1.3(kkk)(1)(E) has been revised to include interest and currency rates to be consistent with § 1.3(kkk)(1)(F). Both provisions address similar financial risks arising from rate ‘‘movements’’ and ‘‘exposures,’’ respectively. 989 Local government entities that use GASB accounting standards may not be able to use comparable FASB hedge accounting as a demonstration that a swap is a hedge. Although the two standards are not the same, they are similar in effect and degree in respect of determining whether a swap hedges a risk. VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 in CEA section 1a(33)(A)(i)(1) does not limit its application based on the characterization or status of the person or entity. Unlike the end-user clearing exemption of section 2(h)(7), the major swap participant hedging exclusion is not foreclosed to financial entities.990 In addition, the hedging exclusion will extend to entities hedging the risks of affiliates in a corporate group, but not to third parties outside of a corporate group. Like the proposed rule, the final rule under the CEA does not require a demonstration of hedge effectiveness, periodic retesting or specific documentation in order to apply the hedging exclusion from the definition of major swap participant. b. Swaps That Hedge Positions Held for Speculation, Investment, or Trading Swaps that hedge positions held for speculation, investment or trading will not qualify for the exclusion. In the Proposing Release, the CFTC explained that swap positions held for the purpose of speculation, investment or trading are those held primarily to take an outright view on market direction, including positions held for short term resale, or to obtain arbitrage profits.991 Additionally, the Proposing Release stated that swap positions that hedge other positions that themselves are held for the purpose of speculation, investment or trading are also speculative, investment or trading positions.992 We note that some commenters suggested that swaps that hedge speculative, investment or trading positions should qualify for the exclusion because speculation, investment or trading are fundamental to commercial activity and cannot be differentiated from other types of commercial activity. Similarly, commenters that support allowing speculative, investment or trading positions to qualify for the exception stated that a swap hedging the risk of another swap (regardless of that swap’s nature) is risk reducing and therefore hedges commercial risk. We believe that these commenters’ interpretation of ‘‘commercial’’ is not consistent with congressional intent or the meaning of 990 Although CEA section 1a(33)(A)(iii), 7 U.S.C. 1a(33)(A)(iii) provides that financial entities that are highly leveraged and not subject to capital requirements established by a Federal banking agency are effectively precluded from applying the hedging exclusion, other financial entities are not so precluded. Thus, availability of the hedging exclusion to some financial entities for purposes of the major swap participant definition is contemplated in the statutory text. 991 See 75 FR at 80195 n.128. 992 Id. PO 00000 Frm 00082 Fmt 4701 Sfmt 4700 ‘‘commercial’’ in the Dodd-Frank Act with respect to the first test of the major participant definition or the end-user exception to the clearing mandate. We are unconvinced that allowing swap positions to qualify for the exception would be appropriate when used to hedge speculative, investment or trading positions because the swap would not hedge or mitigate the risks associated with the underlying position, or at least not in the manner intended by Congress. In addition, we believe that doing so would undermine the effectiveness of the major participant definition in that entities would be able to characterize positions for speculative, investment or trading purposes as hedges and therefore evade regulation as major participants. Under CFTC Regulation § 1.3(kkk)(2)(i), swap positions executed for the purpose of speculating, investing, or trading are those positions executed primarily to take an outright view on market direction or to obtain an appreciation in value of the swap position itself, and not primarily for hedging or mitigating underlying commercial risks.993 For example, swaps positions held primarily for the purpose of generating profits directly upon closeout of the swap, and not to hedge or mitigate underlying commercial risk, are speculative or serve as investments. Further, as an alternative example, swaps executed for the purpose of offsetting potential future increases in the price of inputs that the entity reasonably expects to purchase for its commercial activities serve to hedge a commercial risk. The CFTC notes that the use of ‘‘trading’’ in this context is not used to mean simply buying and selling. Rather, a party is using a swap for the purpose of trading under the rule when the party is entering and exiting swap positions for purposes that have little or no connection to hedging or mitigating commercial risks incurred in the ordinary course of business. ‘‘Trading,’’ as used in CFTC Regulation § 1.3(kkk)(2)(i), therefore would not include simply the act of entering into or exiting swaps if the swaps are used for the purpose of hedging or mitigating commercial risks incurred in the ordinary course of business.994 993 The Commissions note that the SEC interprets the availability of the hedging exclusion differently in the context of the ‘‘major security-based swap participant’’ definition, and that the SEC’s guidance in this area controls for purposes of that definition. 994 The CFTC further clarifies that merchandising activity in the physical marketing channel qualifies as commercial activity, consistent with the Commission’s longstanding bona fide hedging exemption to speculative position limits. See § 1.3(kkk)(1)(ii). E:\FR\FM\23MYR2.SGM 23MYR2 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations The CFTC acknowledges that some swaps that may be characterized as ‘‘arbitrage’’ transactions in certain contexts may also reduce commercial risks enumerated in CFTC Regulation § 1.3(kkk)(1). The discussion in footnote 128 of the Proposing Release was intended to focus on clarifying that swaps are speculative for purposes of the rule if entered into principally and directly for profit and not principally to hedge or mitigate commercial risk. The reference to ‘‘arbitrage profits’’ in footnote 128 was intended to provide an example of what is commonly a speculative swap, not to characterize all arbitrage swaps as speculative. mstockstill on DSK4VPTVN1PROD with RULES2 c. ‘‘Economically Appropriate’’ Standard The CFTC has determined to adopt the ‘‘economically appropriate’’ standard as proposed. We believe that this standard will help the CFTC and market participants distinguish which swaps are, or are not, commercial hedges thereby reducing regulatory uncertainty and helping prevent abuse of the hedging exclusion. CFTC Regulation 1.3(kkk)(1)(i) of the final rules enumerates specific risk shifting practices that are deemed to qualify for purposes of the hedging exclusion.995 Whether a swap is economically appropriate to the reduction of risks will be determined by the facts and circumstances applicable to the swap at the time a swap is entered into. While we acknowledge that this standard leaves room for judgment in its application, we believe this flexibility is needed given the wide variety of swaps and hedging strategies the rule applies to. We believe the economically appropriate standard together with the identification of the six different categories of permissible commercial risks listed in final CFTC Regulation § 1.3(kkk)(1)(i) is specific enough, when reasonably applied, to distinguish whether a swap is being used to hedge or mitigate commercial risk. The Commission has determined not to adopt a ‘‘congruence’’ standard because that standard may be too restrictive and difficult to use given the 995 In the alternative to meeting the requirements of CFTC Regulation § 1.3(kkk)(1)(i), a swap may also be eligible for the hedging exclusion if the swap qualifies as a bona fide hedge for purposes of an exception from position limits under the CEA as provided in CFTC Regulation § 1.3(kkk)(1)(ii), or if it qualifies for hedging treatment under FASB Accounting Standards Codification Topic 815 or under GASB Statement 53 as provided in CFTC Regulation § 1.3(kkk)(1) (iii). Consequently, the universe of swaps that can qualify for the hedging exclusion is broader than the universe of swaps that qualify as bona fide hedges for purposes of an exception from position limits under the CEA as provided in CFTC Regulation § 1.3(kkk)(1)(ii). VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 range of potential types of swaps and hedging strategies available. 5. Final Rules—‘‘Major Security-Based Swap Participant’’ Definition Under the Exchange Act a. ‘‘Economically Appropriate’’ Standard The final rules retain the proposed ‘‘economically appropriate’’ standard, by which a security-based swap position that is used for hedging purposes 996 would be eligible for exclusion from the first major participant analysis if the position is economically appropriate to the reduction of risks in the conduct and management of a commercial enterprise, when those risks arise from the potential change in the value of assets, liabilities and services in connection with the ordinary course of business of the enterprise.997 Consistent with the Proposing Release, we interpret the concept of ‘‘economically appropriate’’ to mean that the security-based swap position cannot materially over-hedge the underlying risk such that it could reasonably have a speculative effect,998 and that the position cannot introduce any new basis risk or other type of risk (other than counterparty risk that is attendant to all security-based swaps) more than reasonably is necessary to manage the identified risks. For example, a manufacturer that wishes to hedge the risk associated with 996 In the Proposing Release we stated that we did not believe the use of the term ‘‘mitigating’’ in the exclusion to mean something significantly more than ‘‘hedging.’’ See Proposing Release, 75 FR 80194 n.127. As noted above, some commenters disagreed, and argued that ‘‘mitigating’’ should be interpreted more broadly to encompass general risk mitigation strategies. See, e.g., letters from ISDA and CDEU. In our view, the final rules we are adopting—including the use of ‘‘economically appropriate’’ standards and the exclusions for certain positions—encompass positions that may reasonably be described as ‘‘hedging’’ or ‘‘mitigating’’ commercial risk. 997 Exchange Act rule 3a67–4(a)(1). Under this standard, the first major participant analysis need not account for security-based swap positions that pose limited risk to the market and to counterparties because the positions are substantially related to offsetting risks from a person’s commercial operations. These hedging positions would include activities, such as the management of receivables, that arise out of the ordinary course of a person’s commercial operations, including activities that are incidental to those operations. See Proposing Release, 75 FR at 80195. In addition, the security-based swap positions included within the rule would not be limited to those recognized as hedges for accounting purposes. See id. 998 In the Proposing Release, we described the ‘‘economically appropriate’’ standard as excluding positions that introduce ‘‘any new material quantum of risks.’’ See Proposing Release, 75 FR 80194 n. 129. The interpretation in this release is consistent with that approach, but does not make use of the same ‘‘quantum of risks’’ terminology. PO 00000 Frm 00083 Fmt 4701 Sfmt 4700 30677 a customer’s long-term lease of a product may purchase credit protection using a single-name credit default swap on which the customer is the reference entity. The credit default swap may be excluded from the first major participant analysis even if it is for a shorter term than the anticipated duration of the lease so long as the use of such a shorter-term instrument is reasonable as a hedge, such as due to cost or liquidity reasons.999 Also, the credit default swap may be excluded from the first major participant test if it hedges an amount of risk that is lower than the total amount of risk associated with the long-term contract.1000 In adopting this rule, we have considered commenter views that we should consider limiting the exclusion to positions that are recognized as hedges for accounting purposes.1001 We nonetheless do not believe that the requirements that are appropriate to identifying hedging for accounting purposes are needed to limit the availability of the hedging exclusion. Moreover, linking the availability of the exclusion to accounting standards— which themselves may evolve over time—may lead the availability of the exclusion to evolve over time in unforeseen ways. We accordingly believe that the exclusion should be available if a security-based swap position is economically appropriate for hedging purposes (and not otherwise precluded from taking advantage of the exclusion). We also have considered commenter concerns that the ‘‘economically appropriate’’ standard is too broad,1002 and the additional suggestion that the exclusion instead should be limited to circumstances in which the hedge is ‘‘congruent’’ to the underlying risk.1003 999 In other words, the entity may determine that the use of a credit default swap for a term that is shorter than the lease is justified if that shorter-term instrument costs less or is more liquid than a bespoke instrument that matches the duration of the contract. While the shorter-term credit default swap does not eliminate the underlying commercial risk, the instrument’s use may be commercially reasonable for hedging purposes, and hence appropriately excluded from the first major participant test. 1000 The use of a credit default swap for an amount that is smaller than the underlying risk may be justified as part of an entity’s risk management strategy. For example, an entity may choose to engage in a partial hedge because a credit default swap for a smaller amount than the underlying risk may cost less or be more liquid than a bespoke instrument that more closely matches the amount of the risk. 1001 See letter from Senator Levin. 1002 See letters from AFR and AFSCME. 1003 See letter from Better Markets I. We nonetheless do not believe that such a requirement would be consistent with the exclusion’s E:\FR\FM\23MYR2.SGM Continued 23MYR2 30678 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES2 We recognize the significance of commenters’ concerns as to the practical application of the ‘‘economically appropriate’’ standard, particularly with regard to hedges that are not perfectly correlated with the underlying risk.1004 The standard embeds principles of commercial reasonableness that should assuage those implementation concerns, however. These principles necessarily account for the fact that the reasonable use of security-based swaps to hedge a person’s commercial risk may result in residual basis risk, and that the mere presence of this basis risk should not preclude the availability of the exclusion. Moreover, the mere presence of residual basis risk need not run afoul of the restriction against materially overhedging the underlying risk, which is instead intended to prevent the hedging exclusion from applying to positions that are entered into for speculative purposes or that have speculative effect (such as by being based on a notional amount that is disproportionate to the underlying risk).1005 We also acknowledge that an ‘‘economically appropriate’’ standard does not provide the compliance assurance that would accompany quantitative tests or safe harbors. Nonetheless, grounding the hedging exclusion in principles of commercial reasonableness permits the standard to be sufficiently flexible to appropriately address an end-user’s particular circumstances and hedging needs. Use of an ‘‘economically appropriate’’ standard also is consistent with the fact that entities should be expected to use their reasonable business judgment when hedging their commercial risks. To provide additional guidance to entities hedging commercial risk, moreover, the final rule incorporates examples of security-based swap positions that, depending on the applicable facts and circumstances, may satisfy the ‘‘economically appropriate’’ standard.1006 These are: ‘‘commercial risk’’ terminology or underlying intent. A congruence standard particularly would not appear to adequately reflect the fact that commercially reasonable hedging activities can leave residual basis risk. 1004 See letter from SIFMA AMG II. 1005 For example, non-material basis risk or a nonmaterial over-hedge may occur due to the use of a standardized instrument. A commercial entity may reasonably determine that it is cost effective to use a standardized security-based swap to hedge the underlying risk, even if use of the standardized instrument introduces non-material basis risk or reflects a non-material amount of over-hedging compared to what would be the result of using a bespoke security-based swap to hedge that risk. 1006 Exchange Act rule 3a67–4(a)(2). We previously noted that the proposed definition would facilitate those types of security-based swap positions. See Proposing Release, 75 FR at 80196. VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 • Positions established to manage the risk posed by a customer’s, supplier’s or counterparty’s potential default in connection with: financing provided to a customer in connection with the sale of real property or a good, product or service; a customer’s lease of real property or a good, product or service; a customer’s agreement to purchase real property or a good, product or service in the future; or a supplier’s commitment to provide or sell a good, product or service in the future.1007 • Positions established to manage the default risk posed by a financial counterparty (different from the counterparty to the hedging position at issue) in connection with a separate transaction (including a position involving a credit derivative, equity swap, other security-based swap, interest rate swap, commodity swap, foreign exchange swap or other swap, option, or future that itself is for the purpose of hedging or mitigating commercial risk pursuant to the rule or the counterpart rule under the Commodity Exchange Act); • Positions established to manage equity or market risk associated with certain employee compensation plans, including the risk associated with market price variations in connection with stock-based compensation plans, such as deferred compensation plans and stock appreciation rights; • Positions established to manage equity market price risks connected with certain business combinations, such as a corporate merger or consolidation or similar plan or acquisition in which securities of a person are exchanged for securities of any other person (unless the sole purpose of the transaction is to change an issuer’s domicile solely within the United States), or a transfer of assets of a person to another person in consideration of the issuance of securities of such other person or any of its affiliates; • Positions established by a bank to manage counterparty risks in connection with loans the bank has made; and • Positions to close out or reduce any of the positions addressed above. b. Treatment of Speculative or Trading Positions The final rule, consistent with the proposal, provides that this hedging exclusion does not extend to securitybased swap positions that are in the 1007 As discussed in the Proposing Release, see 75 FR at 80196 n.135, the references here to customers and counterparties do not include swap or securitybased swap counterparties. PO 00000 Frm 00084 Fmt 4701 Sfmt 4700 nature of speculation or trading.1008 The exclusion thus does not extend to security-based swap positions that are held for short-term resale and/or with the intent of benefiting from actual or expected short-term price movements or to lock in arbitrage profits, or to security-based swap positions that hedge other positions that themselves are held for the purpose of speculation or trading.1009 The Commissions recognize that some commenters take the position that the exclusion should extend to securitybased swap positions that hedge speculative or trading positions.1010 In support, these commenters have stated that the proposed approach would lead to more unhedged risk in the market, and that the proposed approach could lead entities that use security-based swaps to hedge speculative positions to be major participants, in contrast to unhedged (and presumably riskier) entities. Commenters further requested clarification regarding how entities may distinguish speculative or trading positions from other security-based swap positions.1011 The Commissions nonetheless do not believe that it would be appropriate to extend the hedging exclusion to speculative or trading positions, including security-based swap positions that themselves hedge other positions that are for speculative or trading 1008 Exchange Act rule 3a67–4(b)(1). The commercial risk hedging exclusion for the purposes of the ‘‘major security-based swap participant’’ definition (in contrast to the commercial risk hedging exclusion in connection with the ‘‘securitybased swap dealer’’ definition) does not turn upon whether a position is ‘‘primarily’’ for speculative or trading purposes. For the ‘‘major security-based swap participant’’ definition, a security-based swap position with any speculative or trading purpose cannot take advantage of the commercial risk hedging exclusion regardless of whether speculation or trading constitutes the ‘‘primary’’ purpose of the position. 1009 See generally Basel Committee on Banking Supervision, ‘‘International Convergence of Capital Measurement and Capital Standards, A Revised Framework, Comprehensive Version’’ (June 2006) at ¶¶ 685–689(iii) (defining the term ‘‘trading book’’ for purposes of international bank capital standards, and stating that positions that are held for shortterm resale and/or with the intent of benefiting from actual or expected short-term price movements or to lock in arbitrage profits are typically considered part of an entity’s trading book). In contrast to the CEA rule implementing the commercial risk hedging definition in the context of the ‘‘major swap participant’’ definition, the Exchange Act rule does not explicitly exclude security-based swaps held for the purpose of investing. We note, however, that security-based swaps held for the purpose of investing (i.e., held primarily to obtain an appreciation in value of the security-based swap position) would not meet the ‘‘economically appropriate’’ standard set forth above, and hence would not be eligible for the exclusion. 1010 See, e.g., letters from FSR I and ISDA I. 1011 See, e.g., letter from CDEU. E:\FR\FM\23MYR2.SGM 23MYR2 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES2 purposes. Those limitations are appropriate to help give meaning to the concept of ‘‘commercial’’ risk, and to reflect the legislative intent to limit the impact of Title VII on commercial endusers of security-based swaps.1012 Indeed, the use of security-based swap positions in connection with speculative and trading activity often may be expected either to have the purpose of locking-in arbitrage profits associated with those activities or producing an adjusted risk profile in connection with perceptions of future market behavior—neither of which would eliminate the speculative or trading purpose of the activity.1013 We do not believe that it would be appropriate, or consistent with the Dodd-Frank Act, to interpret the term ‘‘commercial risk’’ to accord the same regulatory treatment to security-based swap positions for speculative or trading purposes as is accorded to the use of security-based swap positions in connection with commercial activities such as producing goods or providing services to customers.1014 1012 In addition, this limitation is consistent with the exclusion from the first major participant test in connection with ERISA plans. That exclusion particularly addresses security-based swap positions with the primary purpose of ‘‘hedging or mitigating any risk directly associated with the operation of the plan.’’ It is not clear why that scope of the ERISA exclusion would need to be incorporated into the first major participant test if the ‘‘commercial risk’’ exclusion already were broad enough to encompass hedges of trading or speculative positions. 1013 As an example, one speculative/trading strategy involving security-based swaps can be to purchase short-dated credit protection in conjunction with a long-dated bond, to reflect a view that a particular company is likely to fail in the current credit environment. Combined, those positions can produce losses if the current credit environment did not change or if spreads were to widen, but could produce profits either if the company were to default or if spreads were to narrow and funding costs were to decrease. See Morgan Stanley, Credit Derivatives Insights 156–58 (4th ed., 2008). In other words, under that strategy the purchase of the credit protection would offset a portion of the risks associated with the ownership of the bond, but for the purpose of taking a directional view of the market with the hope for profit if the purchaser’s view of future market dynamics is correct (and the reality of losses if the purchaser’s view of the market is wrong). It would require an extraordinarily liberal construction of ‘‘commercial risk’’ to subsume this type of speculative security-based swap activity. At the same time, we recognize that an entity hedging a commercial risk (in contrast to a risk arising from a speculative or trading strategy) reasonably may choose to use a security-based swap that is shorter-dated than the underlying risk, with the security-based swap appropriately excluded from the first major participant definition. 1014 This approach does not reflect any value judgment about the role of speculation in the market for security-based swaps, or about the relative market benefits or risks associated with speculation. This position simply represents an attempt to give meaning to the statutory use of the term ‘‘commercial risk’’ in a way that reflects Title VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 Moreover, the Commissions believe that it would undermine the major participant definition to attribute a nonspeculative or non-trading purpose to security-based swap positions that hedge speculative or trading positions. When a person uses a security-based swap position to help lock in profits or otherwise control the volatility associated with speculative or trading activity, or to cause that speculative or trading activity to reflect a particular market outlook or risk profile, the security-based swap position serves as an integral part of that speculative or trading activity. It thus would not appear appropriate or consistent with economic reality to seek to distinguish the security-based swap component from the other speculative or trading aspects of that activity. In fact, if ‘‘hedges’’ of speculative or trading positions were excluded from the first major participant test, entities could readily label a wide range of securitybased swap positions entered into for speculative or trading purposes as being excluded hedges.1015 Taken to its natural conclusion, such an approach largely may exclude security-based swap positions from the first major participant test, effectively writing that test out of the statutory definition. We are aware of commenters’ views that regulation of major participants has the potential to create a disincentive against certain entities’ use of securitybased swaps to manage risk in connection with their speculative or trading activities.1016 Under this view, regulation potentially could result in those entities electing not to reduce the risks that they otherwise would seek to hedge, to avoid being regulated as major participants.1017 That potential result, however, is an unavoidable consequence of the legislative decision to regulate persons whose securitybased swap positions cause them to be major participants. It would not be appropriate to use the hedging exclusion to negate part of the VII’s special treatment of commercial end-users, and (as discussed below) avoid an interpretation that effectively undermines the first major participant test. 1015 As noted by one participant to the roundtable on these definitions: ‘‘[B]eing a hedge fund manager, there’s nothing in my portfolio I can’t claim to be hedging a risk. There’s nothing. There’s not a trade I do ever that I can’t claim it to be a hedge against interest rates, or inflation, or against equity. You know, the fact of the matter is, if you’re a capital market participant, your business is taking risks.’’ Roundtable Transcript at 325 (remarks of Michael Masters, Better Markets). 1016 See letter from ISDA I. 1017 Of course, this would only be the case where the entity’s hedging and speculative activities combined were at a level in excess of the major participant thresholds. PO 00000 Frm 00085 Fmt 4701 Sfmt 4700 30679 underlying statutory definition simply to avoid disincentives that are an unavoidable consequence of the legislative decision to regulate major participants. At the same time, we are mindful that market participants have requested further guidance as to how to distinguish between hedging positions that are subject to this exclusion, and speculative or trading positions that fall outside the exclusion. In our view, analysis of this issue is simplified by the nature of security-based swaps, and by the limited circumstances in which a person may be expected to have a commercial risk such that the use of a security-based swap may be economically appropriate for managing that commercial risk (rather than being for speculation or trading purposes). In the case of security-based swaps that are credit derivatives, the final rule provides examples of the use of credit default swaps to purchase credit protection that, depending on the applicable facts and circumstances, may appropriately be excluded from the first major participant test (e.g., the use of a credit default swap to purchase credit protection in connection with the potential default of a customer, supplier or counterparty, or in connection with loans made by a bank). Certain other purchases of credit protection using credit default swaps—such as the purchase of credit protection to manage the risks associated with securities that a non-financial company holds in a corporate treasury and that are not held for speculative or trading purposes— may also meet the standard under these rules.1018 The sale of offsetting credit protection may also reasonably be expected to fall within the exclusion to the extent that this sale is reasonably necessary to address changes (particularly reductions) in the amount of underlying commercial risk hedged by the initial security-based swap position.1019 1018 This is not to say that the purchase of credit protection on a security that a person owns would necessarily be entitled to the hedging exclusion. If the underlying security itself is held for speculative or trading purposes, the credit protection would not be excluded from the first major participant analysis, and in any event would not reasonably be construed as hedging ‘‘commercial risk.’’ 1019 Apart from that example, it is more difficult to foresee circumstances in which the sale of credit protection using a credit default swap would be expected to fall within the exclusion. We recognize, for example, that a person that has a short position in a security of a reference entity may have an incentive to sell credit protection on that reference entity to offset movements in the price or value of that short position (and/or lock in arbitrage profits in connection with that short position). While that sale of credit protection may mitigate the risks E:\FR\FM\23MYR2.SGM Continued 23MYR2 30680 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations As for security-based swaps that are not credit derivatives—such as equity swaps and total return swaps—the final rule provides examples of how the use of those security-based swaps in connection with certain business combinations may, depending on the applicable facts and circumstances, appropriately be excluded from the first major participant test. The use of equity swaps or total return swaps to manage the risks associated with securities that are held in a corporate treasury (and that are not held for speculative or trading purposes) may also appropriately be subject to the exclusion. Other uses of equity swaps or total return swaps to offset risks associated with long or short positions in securities, however, may not appropriately be excluded from the first major participant test, because such positions would be expected to have an arbitrage purpose or other speculative or trading purpose, and would be inconsistent with the ‘‘commercial risk’’ limitation to the hedging exclusion. c. Treatment of Positions That Hedge Other Swap or Security-Based Swap Positions The final rule, consistent with the proposal, provides that the hedging exclusion does not extend to a securitybased swap position that hedges another swap or security-based swap position, unless that other position itself is held for the purposing of hedging or mitigating commercial risk.1020 This provision allows the first major participant analysis to exclude a person’s purchase of credit protection to help address the risk of default by a counterparty in connection with an interest rate swap, foreign exchange swap or other swap or security-based swap that the person has entered into for the purpose of hedging or mitigating commercial risk. mstockstill on DSK4VPTVN1PROD with RULES2 d. Procedural Conditions In contrast to the proposal, the final rule does not incorporate procedural requirements in connection with the hedging exclusion from the first test of the major security-based swap participant definition.1021 In making associated with that short position, or produce an arbitrage profit in connection with that short position, that security-based swap position would not appear to constitute the hedging of ‘‘commercial risk’’ for purposes of the exclusion. 1020 Exchange Act rule 3a67–4(b)(2). 1021 Those proposed provisions would have conditioned the exclusion on the person identifying and documenting the underlying risks, establishing and documenting a method of assessing the hedge effectiveness, and regularly assessing the effectiveness of the security-based swap as a hedge. See proposed Exchange Act rule 3a67–4(c). VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 this change, we have been mindful of concerns that have been expressed that such procedural requirements would lead to undue costs in connection with hedging activity.1022 We understand, however, that many entities engaging in legitimate hedging of commercial risks do, as a matter of business practice, identify and document those risks and evaluate the effectiveness of the hedge from time to time. The presence of supporting documentation consistent with such procedures would help support a person’s assertion that a security-based swap position should be excluded from the first major participant analysis, should the legitimacy of the exclusion become an issue. Also, although we are not requiring the entity to monitor the effectiveness of the hedge over time, that absence of this requirement does not change the underlying need for a security-based swap position to be economically appropriate for the commercial risks facing the entity to be excluded from the first major participant definition. Thus, for example, if a person’s underlying commercial risk materially diminishes or is eliminated over time, a securitybased swap position that may have been economically appropriate to the reduction of risk at inception at a certain point in time may, depending on the facts and circumstances, no longer be reasonably included within the exclusion.1023 As part of the reports required in connection with possible future changes to the major participant definitions,1024 the staffs are directed to address whether the continued availability of the hedging exclusion should be conditioned on assessment of hedging effectiveness and related documentation. D. Exclusion for Positions Held by Certain Plans Defined Under ERISA 1. Proposed Approach The first statutory test of the major participant definitions excludes swap and security-based swap positions that are ‘‘maintained’’ by any employee benefit plan as defined in sections 1022 See, e.g., letter from FSR I. that may be relevant to determining whether a security-based swap position is economically appropriate to the reduction of risk may include the costs associated with terminating or reducing that position. 1024 See part V, infra. 1023 Factors PO 00000 Frm 00086 Fmt 4701 Sfmt 4700 3(3) 1025 and 3(32) 1026 of ERISA ‘‘for the primary purpose of hedging or mitigating any risk directly associated with the operation of the plan.’’ 1027 The proposed rules incorporated that statutory exclusion without additional interpretation or refinement.1028 In the Proposing Release, moreover, the Commissions expressed the preliminary view that we did not ‘‘believe that it is necessary to propose a rule to further define the scope of this exclusion.’’ We further noted that the exclusion for those plans identified in the statutory definition is not strictly limited to ‘‘commercial’’ risk, and that this may be construed to mean that hedging by those ERISA plans should be broadly excluded. The Commissions also solicited comment as to whether this exclusion should be made available to additional types of entities.1029 2. Commenters’ Views Some commenters requested clarification that the ERISA hedging exclusion is broader than the commercial risk hedging exclusion, and that the ERISA hedging exclusion can encompass positions that are not solely for hedging purposes.1030 One 1025 Section 3(3) of Title I of ERISA defines the term ‘‘employee benefit plan’’ to include ‘‘an employee welfare benefit plan or an employee pension benefit plan or a plan which is both an employee welfare benefit plan and an employee pension benefit plan.’’ See 29 U.S.C. 1002(3). The terms ‘‘employee welfare benefit plan’’ and ‘‘employee pension benefit plan’’ are further defined in Sections 3(1) and (2) of ERISA. See 29 U.S.C. 1002(1) and (2). 1026 Section 3(32) of Title I of ERISA defines the term ‘‘governmental plan’’ to mean a plan that the U.S. government, state or political subdivision, or agencies and instrumentalities establish or maintain for its employees, as well as plans governed by the Railroad Retirement Acts of 1935 and 1937, plans of international organizations that are exempt from taxation pursuant to the International Organizations Immunities Act, and certain plans established and maintained by tribal governments or their subdivisions, agencies or instrumentalities. See 29 U.S.C. 1002(32). 1027 CEA section 1a(33)(A)(i)(I); Exchange Act section 3(a)(67)(A)(ii)(I). 1028 See proposed CFTC Regulation § 1.3(hhh)(1)(ii)(A); proposed Exchange Act rule 3a67–1(a)(2)(i). 1029 See Proposing Release, 75 FR at 80201, supra. 1030 See letters from BlackRock I (noting that the ERISA hedging exclusion applies to positions with the ‘‘primary purpose’’ of hedging, ‘‘which suggests plans may exclude swap positions even if they serve a purpose in addition to hedging or mitigating’’), the ERISA Industry Committee (‘‘ERISA Industry Committee’’) (stating that if ERISA Title I plans are not excluded from the major participant definition, the rules should clarify that the ERISA hedging exclusion is broader than the commercial hedging exclusion and encompasses a variety of risks associated with the value of a plan’s assets or the measures of its liabilities; also stating that the ERISA exclusion should not omit positions in the nature of investing, and particularly discussing the use of swaps to provide diversification), ABC/CIEBA (expressing the view E:\FR\FM\23MYR2.SGM 23MYR2 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES2 commenter cautioned against interpreting the ERISA hedging exclusion broadly.1031 Commenters also requested that the Commissions clarify that the ERISA hedging exclusion applies to positions maintained by trusts that hold plan assets,1032 or by pooled funds.1033 One commenter, in contrast, stated that the exclusion should not be available to trusts holding plan assets.1034 One commenter stated that the exception should be extended to all public pension plans,1035 and one commenter particularly took the view that the exclusion should be available to church plans.1036 Some commenters that the ERISA hedging exclusion extends beyond ‘‘traditional’’ hedges, and stating that the exclusion should encompass swaps with purposes in addition to hedging, and that the exclusion should encompass positions for the purpose of rebalancing, diversification and gaining asset class exposure) and CalSTRS I (requesting that regulations provide for an ERISA hedging exclusion that is broader than the commercial risk hedging exclusion, and that encompasses positions for the purpose of investing). One commenter alluded to the incorporation of efficient portfolio theory principles within the exception. See letter from Russell Investments. 1031 See letter from AFSCME (stating that while the statutory exclusion may encompass swaps to mitigate currency risk of cash market investments, the exclusion should not encompass swaps used for investment purposes such as to gain asset class exposure or avoid transaction costs associated with a direct investment). 1032 See letters from ERISA Industry Committee (stating that the rules should provide that the exclusion applies to positions maintained by any trust holding plan assets) and ABC/CIEBA (stating that the rules should provide the relevant entity for purposes of the exclusion is the counterparty to the swap, further stating that if a trust enters into a swap as a counterparty, it is the trust that should be tested as a possible major participant, even if the trust also holds non-ERISA assets). 1033 See letters from BlackRock I (discussing how plan fiduciaries may invest plan assets ‘‘in pooled investment vehicles such as registered investment companies, private funds and bank maintained collective trust funds,’’ and stating that not including pooled funds within the exclusion would limit plans’ ability to avail themselves of the efficiencies associated with pooling), ERISA Industry Committee (stating that there is ‘‘no reason’’ why the exception should not also extend to position held by a pooled investment trust on behalf of multiple employee benefit plans) and ABC/CIEBA (stating that if a pool within a trust is the counterparty, it is that pool that should be tested as a possible major participant, and noting Department of Labor regulations providing that a collective investment vehicle would be viewed as holding plan assets if the vehicle is not a registered investment company, and plans hold at least 25 percent of the interests in the vehicle). 1034 See letter from AFSCME (stating that ‘‘it is important to limit the exemption to plans themselves, not to entities holding ‘plan assets’ ’’). 1035 See letter from Russell Investments. 1036 See letter from Church Alliance (stating that the exclusion also should encompass church plans defined in paragraph 3(33) of ERISA, on the grounds that Congress would not have intended to discriminate against church plans, and that church plans are considered ‘‘special entities’’ that should be the beneficiaries of extra protection). VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 stated that the exclusion should be available to non-U.S. plans.1037 3. Final Rules Consistent with the position expressed in the Proposing Release, the Commissions interpret the ERISA hedging exclusion in the first statutory major participant test to be broader than that test’s commercial risk hedging exclusion. This reflects the facts that the ERISA hedging exclusion is not limited to ‘‘commercial’’ risk, and that the ERISA hedging exclusion addresses positions that have a ‘‘primary’’ hedging purpose (which suggests that those positions may have a secondary nonhedging purpose). a. Types of Excluded Hedging Activities The Commissions are mindful of commenters’ request for additional clarity regarding the scope of the ERISA hedging exclusion. In that regard, we note that we generally would expect swap or security-based swap positions to have a primary purpose of hedging or mitigating risks directly associated with the operation of the types of plans identified in the statutory definition— and hence eligible for the exclusion— when those positions are intended to reduce disruptions or costs in connection with, among others, the anticipated inflows or outflows of plan assets, interest rate risk, and changes in portfolio management or strategies. Conversely, we believe that certain other types of positions would less likely have the primary purpose of hedging or mitigating risks directly associated with the operation of the plan, as anticipated by the statutory definition.1038 b. Availability of Exclusion The Commissions recognize the significance of comments that these plans may use separate entities such as trusts or pooled vehicles to hold plan assets, and that the exclusion should not be interpreted in a way that deters the 1037 See letters from ABC/CIEBA, APG and BTPS. The Commissions intend to issue separate releases that address the application of the major participant definitions, and Title VII generally, to non-U.S. entities. 1038 For example, we do not foresee that the use of a swap or security-based swap position to replicate exposure to a foreign market or to a particular asset class to be for the primary purpose of hedging risks directly associated with the operation of these types of plans. While we recognize that an asset manager may perceive benefits in using swaps or security-based swaps in that manner, it also is necessary to give effect to the statutory language limiting the exclusion to positions that have a ‘‘primary purpose’’ of hedging risks ‘‘directly associated’’ with the ‘‘operations’’ of a plan. We recognize that lack of diversification may be viewed as a risk, but it is not an ‘‘operations’’ risk. PO 00000 Frm 00087 Fmt 4701 Sfmt 4700 30681 use of those vehicles. We believe that the same principles that underpin the exclusion for hedging positions directly entered into by the types of plans identified in the statutory definition also warrant making the exclusion applicable to plan hedging positions that are entered into by those other parties that hold assets of those types of plans. Otherwise, the major participant analysis would have the effect of deterring efficiencies in plan operations for no apparent regulatory purpose. Accordingly, the Commissions interpret the meaning of the term ‘‘maintain’’—in the context of the statutory provision that the swap or security-based swap position be ‘‘maintained by’’ an employee benefit plan—not only to include positions in which the plan is a counterparty, but also to include positions in which the counterparty is a trust or pooled vehicle that holds plan assets. Thus, for example, the exclusion would be available to trusts or pooled vehicles that solely hold assets of the types of plans identified in the statutory definition.1039 The exclusion further may be available to entities that hold such plan assets in conjunction with other assets, but only to the extent that the entity enters into swap or securitybased swap positions for the purpose of hedging risks associated with the plan assets. The exclusion does not extend to positions that hedge risks of other assets, even if those are managed in conjunction with plan assets.1040 The Commissions also are mindful of commenter concerns that the exclusion should explicitly be made available to other plans, such as church plans and non-U.S. plans.1041 In this regard, the Commissions believe that the boundaries of the exclusion are set by the explicit statutory language, which states that it applies to any employee benefit plan as defined in paragraphs (3) and (32) of section 3 of ERISA. This reference is disjunctive—that is, a plan is eligible for the exclusion if it is within the scope of paragraph (3) (which refers to employee benefit plans) 1039 This interpretive guidance is intended solely in the context of the interpretation of the first test of the statutory major participant definitions. The guidance is not based on or relevant to the interpretation of other regulations relating to ERISA. 1040 As appropriate, for purposes of the first major participant analysis an entity may need to allocate the exposure associated with swap or securitybased swap positions between the amount that is attributable to plan assets (and hence eligible for exclusion) and the amount that is attributable to other assets. 1041 As previously noted, the Commissions intend to issue separate releases that address the application of the major participant definitions, and Title VII generally, to non-U.S. entities. E:\FR\FM\23MYR2.SGM 23MYR2 30682 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations or of paragraph (32) (which applies to government plans). Accordingly, the scope of the cited definitions in paragraphs (3) and (32) should be determined in accordance with all law that applies in the interpretation of ERISA.1042 E. ‘‘Substantial Counterparty Exposure’’ mstockstill on DSK4VPTVN1PROD with RULES2 1. Proposed Approach The major participant definitions’ second statutory test encompasses persons whose outstanding swaps or security-based swaps ‘‘create substantial counterparty exposure that could have serious adverse effects on the financial stability of the U.S. banking system or financial markets.’’ 1043 In contrast to those definitions’ first statutory test, which relates to persons with a ‘‘substantial position’’ in swaps or security-based swaps in a ‘‘major’’ category,1044 this second test is not limited to positions in a single category. Also, unlike the first test, the second statutory test does not explicitly exclude certain commercial risk hedging positions or ERISA hedging positions. For the ‘‘major swap participant’’ definition, the Proposing Release provided that a person’s swap positions pose ‘‘substantial counterparty exposure’’ if those positions present a daily average current uncollateralized exposure of $5 billion or more, or present daily average current uncollateralized exposure plus potential future exposure of $8 billion or more.1045 For the ‘‘major security-based swap’’ definition, the proposal provided that a person’s security-based swap positions pose ‘‘substantial counterparty exposure’’ if those positions present daily average current uncollateralized exposure of $2 billion or more, or present daily average current uncollateralized exposure plus potential future exposure of $4 billion or more.1046 Under the proposal, those measures would be calculated in the same manner as would be used for the first major participant test, except that the ‘‘substantial counterparty exposure’’ analysis would consider all of a person’s swap or security-based swap positions rather than solely considering positions in a particular ‘‘major’’ category, and that the ‘‘substantial counterparty exposure’’ analysis would not exclude 1042 We are not taking a view as to whether church plans or non-U.S. plans constitute employee benefit plans as defined by section 3(3) of ERISA. 1043 CEA section 1a(33)(A)(ii); Exchange Act section 3(a)(67)(A)(ii)(II). 1044 CEA section 1a(33)(A)(i); Exchange Act section 3(a)(67)(A)(ii)(I). 1045 See proposed CFTC Regulation § 1.3(lll). 1046 See proposed Exchange Act rule 3a67–5. VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 positions to hedge commercial risks or ERISA plan risks. The proposed ‘‘substantial counterparty exposure’’ thresholds were set higher than the proposed ‘‘substantial position’’ thresholds in part to reflect the fact that the former test accounts for a person’s positions across four major swap categories or two major security-based swap categories.1047 The proposed ‘‘substantial counterparty exposure’’ thresholds also reflected the fact that this second test (unlike the first major participant test) encompasses certain hedging positions that, in general, we would expect to pose a lesser degree of risk to counterparties and the markets. 2. Commenters’ Views a. General Comments In light of the similarity between the proposed tests, a number of the concerns that commenters expressed with regard to the proposed ‘‘substantial position’’ definition also apply to the proposed ‘‘substantial counterparty exposure’’ definition. In addition, some commenters took the view that the proposed ‘‘substantial counterparty exposure’’ thresholds were too low,1048 with several of those commenters stating that the thresholds should be raised to a level that reflects systemic 1047 Thus, these proposed thresholds in part would account for a person that has large positions in more than one major category of swaps or security-based swaps, but that does not meet the substantial position threshold for any single category of swaps or security-based swaps. 1048 See, e.g., letters from ATAA (supporting higher thresholds to measure substantial counterparty exposure), CCMR I (suggesting that the thresholds be set high initially, capturing only a few entities until the Commissions are able to collect and analyze data that supports lowering the thresholds), BG LNG I (stating that proposed threshold should be increased substantially), WGCEF II (stating that the Commissions should adopt substantial position and substantial counterparty exposure tests that account for current conditions in swap markets), ABC/CIEBA (requesting that the Commissions raise the thresholds to better target persons creating or causing systemic risk as set forth in the a major swap participant and major security-based swap participant definitions), BlackRock I (stating that proposed thresholds for the substantial counterparty exposure test are too low so that they could encompass market participants that do not have systemically important swap positions) and ACLI (supporting increasing the thresholds under the CEA definition to $7 billion in daily average aggregate uncollateralized outward exposure or $14 billion in daily average aggregate uncollateralized outward exposure plus daily average aggregate potential outward exposure), and meeting with MFA on February 14, 2011 (requesting that the Commissions raise the thresholds for measuring substantial counterparty exposure until the Commissions conduct a market survey to determine how many entities would need to perform the calculations regularly and whether those entities have characteristics capable of causing systemic risk). PO 00000 Frm 00088 Fmt 4701 Sfmt 4700 risk.1049 A few commenters took the view that the proposed thresholds were too high.1050 Some commenters generally supported the approach to the definition of ‘‘substantial counterparty exposure’’ proposed by the Commissions.1051 Some commenters took the view that the ‘‘substantial counterparty exposure’’ test should focus on the size of an entity’s exposure to specific counterparties.1052 Several commenters suggested that the thresholds should be adjusted over time for inflation and changes in the swap and security-based swap markets.1053 One commenter urged that the analysis consider the interconnectedness of the entity.1054 One commenter addressed the application of the second major participant test to insurance companies, arguing that substantial counterparty exposure should be decided by the FSOC in consultation with the relevant state insurance commissioner, and that hedges should be excluded from the calculation for insurers.1055 b. Lack of Exclusion for Hedging Positions A number of commenters took the view that the second major participant 1049 See letters from ABC/CIEBA, BlackRock I, ISDA I, WGCEF II, and meeting with MFA on February 14, 2011. 1050 See letters from Greenberger (in connection with thresholds relating to substantial position) and AFR (Commissions should define a major swap participant or major security-based swap participant as any person that maintains $500 million in daily average, uncollateralized exposure for any category of swaps other than rate swaps, for which the daily average could be up to $1.5 billion). 1051 See, e.g., letters from ATAA (supporting the proposed definitions of ‘‘substantial position’’ and ‘‘substantial counterparty exposure,’’ with the caveat that higher thresholds be used to measure ‘‘substantial counterparty exposure’’), Dominion Resources (supporting the Commissions proposed definitions of ‘‘substantial position’’ and ‘‘substantial counterparty exposure’’), Fidelity (threshold levels set at appropriate levels but should be periodically reviewed for adjustment), and Kraft (thresholds as proposed are appropriate). 1052 See letters from MFA (stating that the calculation of substantial counterparty exposure should measure the exposure that a person has to each individual counterparty that is a systemically important financial institution excluding cleared swap transactions) and CCMR I (stating that the ‘‘substantial counterparty exposure’’ and ‘‘substantial position’’ thresholds should apply to the largest exposure that a person has to another market participant, with any aggregate test being set at a higher level). 1053 See letters from CDEU, COPE I, Fidelity, ISDA I, and MFA I. 1054 See letter from CDEU. 1055 See letter from NAIC (stating that the Commissions should defer to FSOC when considering the designation of insurers under the second test, and should exclude from the analysis swaps and security-based swap positions used for hedging provided that such positions are subject to state investment laws and ongoing monitoring by a state insurance regulatory authority). E:\FR\FM\23MYR2.SGM 23MYR2 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations test should exclude commercial risk hedging positions from the analysis.1056 Some commenters also supported excluding ERISA hedging positions from the analysis.1057 One commenter opposed any such exclusions for hedging positions.1058 mstockstill on DSK4VPTVN1PROD with RULES2 3. Final Rules Consistent with the Proposing Release, the final rules defining the term ‘‘substantial counterparty exposure’’ generally are based on the same current uncollateralized exposure and potential future exposure tests that are used to identify a ‘‘substantial position.’’ 1059 As with the Proposing Release, moreover, the ‘‘substantial counterparty exposure’’ analysis addresses all of a person’s swap or security-based swap positions (rather than being limited to positions in a ‘‘major’’ category), and does not exclude hedging positions.1060 The final rules also incorporate the quantitative thresholds that were proposed for those tests.1061 1056 See letters from SIFMA AMG II (noting that the Commissions have suggested that hedging positions may not raise the same degree of risk as other swap positions), NAIC (supporting exclusion of commercial risk hedging positions subject to state investment laws and ongoing monitoring by state insurance regulators), AIA (supporting hedging exclusion to avoid capturing entities such as property-casualty insurers), CDEU (suggesting that inclusion of hedging positions is inconsistent with goal of mitigating systemic risk), APG (supporting exclusion of positions held by regulated foreign pension plans), and NRG Energy (suggesting that a lack of an exclusion would cause end-users to curtail hedging activities and increase systemic risk); see also letter from AIMA I (supporting an exemption or discount if the swap transaction is cleared, an off-set for the value and quality of any collateral, and consideration of the directional moves of particular swap contracts). 1057 See letters from ABC/CIEBA and SIFMA AMG II. One commenter further requested that ERISA Title I plans be explicitly excluded from the second test. See letter from ERISA Industry Committee. Another commenter requested an exclusion for ERISA plans generally. See letter from CalSTRS I. 1058 See letter from Better Markets I (stating that excluding hedging positions would be inappropriate because the Dodd-Frank Act did not provide for any such exclusion in the second test, hedge positions may still contribute to counterparty exposure, and the thresholds already reflect the lower level of risk posed by hedge positions). 1059 Accordingly, changes that the final rules made to the proposal with regard to the ‘‘substantial position’’ definition, see part IV.B.3, supra, also are carried over to the definition of ‘‘substantial counterparty exposure.’’ 1060 See CFTC Regulation § 1.3(lll); Exchange Act rule 3a67–5. 1061 Accordingly, consistent with the proposal, the threshold for the ‘‘major swap participant’’ definition is $5 billion or more in daily average current uncollateralized exposure, or $8 billion or more in daily average uncollateralized exposure plus potential future exposure. The threshold for the ‘‘major security-based swap participant’’ is $2 billion or more in daily average current uncollateralized exposure, or $4 billion or more in daily average uncollateralized exposure plus potential future exposure. VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 In adopting these final rules we have considered commenter views that the ‘‘substantial counterparty exposure’’ analysis should exclude certain commercial risk and ERISA hedging positions. We nonetheless believe that the structure of the major participant definitions—particularly the fact that those definitions specifically exclude hedging positions from the first statutory test but not from the second test—necessitates the conclusion that the second test not exclude those hedging positions. We also have considered commenter views that the ‘‘substantial counterparty exposure’’ analysis should account for the maximum exposure that a person poses to any single counterparty. We nonetheless believe that the statutory test—particularly its focus on serious adverse effects on financial stability or financial markets—more appropriately is addressed by measures of the aggregate counterparty risk that an entity poses through its swap or security-based swap positions. Also, consistent with our views regarding the ‘‘substantial position’’ definition, we believe that the ‘‘substantial counterparty exposure’’ analysis appropriately is addressed via objective and quantitative criteria (rather than a multi-tier approach), and appropriately takes into account current uncollateralized exposure and potential future exposure. Consistent with the Proposing Release, the thresholds to implement the second major participant test are higher than the corresponding thresholds for the first major participant test. These differences reflect the fact that the second test encompasses four ‘‘major’’ categories of swaps or two ‘‘major’’ categories of security-based swaps, as well as the fact that this second test does not exclude hedging positions that would appear to pose a lesser degree of counterparty risk than non-hedging positions. While we are mindful of commenter views that the proposed ‘‘substantial counterparty exposure’’ thresholds were too low,1062 we believe that the same principles that support the proposed standards in the context of the ‘‘substantial position’’ definition also support the proposed standards for this second test. As with the ‘‘substantial position’’ analysis, the ‘‘substantial counterparty exposure’’ analysis seeks to reflect a standard that encompasses large market participants before the counterparty risk posed by their swap and security-based swap positions present too large a problem, as well as 1062 See PO 00000 the financial system’s ability to absorb losses of a particular size, and the need to account for the possibility that multiple market participants may fail close in time.1063 Commenters have not presented empirical or analytical evidence in support of a different standard. In the future, the Commissions may review and potentially adjust these thresholds to reflect evolving market structures and additional data. F. ‘‘Highly Leveraged’’ and ‘‘Financial Entity’’ 1. Proposed Approach The third statutory test of the major participant definitions encompasses any non-dealer that: (i) Is a ‘‘financial entity’’ (other than one that is ‘‘subject to capital requirements established by an appropriate Federal banking agency’’), (ii) is ‘‘highly leveraged relative to the amount of capital it holds,’’ and (iii) maintains a ‘‘substantial position’’ in any ‘‘major’’ category of swaps or security-based swaps.1064 In contrast to the first statutory test—which also encompasses persons with a ‘‘substantial position’’ in swaps or security-based swaps in a ‘‘major’’ category—this third test does not exclude positions that hedge commercial risk or ERISA risks. a. ‘‘Financial Entity’’ The Proposing Release defined the term ‘‘financial entity’’ for purposes of the major participant definition in the same general manner as Title VII defines that term for purposes of the end-user exemption from mandatory clearing,1065 but with certain technical changes to avoid circularity.1066 1063 As with the ‘‘substantial position’’ analysis, our decision to adopt these thresholds is informed by events related to AIG Financial Products and LTCM. See part IV.B.3.d, supra. 1064 CEA section 1a(33); Exchange Act section 3(a)(67). 1065 CEA section 2(h)(7); Exchange Act section 3C(g)(3)(A). 1066 See proposed CFTC Regulation § 1.3(mmm)(1); proposed Exchange Act rule 3a67– 6(a). For both sets of rules, the ‘‘financial entity’’ definition would include any: commodity pool (as defined in section 1a(10) of the CEA); private fund (as defined in section 202(a) of the Investment Advisers Act of 1940); employee benefit plan as defined in paragraphs (3) and (32) of section 3 of ERISA; and person predominantly engaged in activities that are in the business of banking or financial in nature (as defined in section 4(k) of the Bank Holding Company Act of 1956). To avoid circularity, the use of the term ‘‘financial entity’’ in the context of the ‘‘major swap participant’’ definition also would encompass any ‘‘security-based swap dealer’’ and ‘‘major securitybased swap participant,’’ but would not include any ‘‘swap dealer’’ or ‘‘major swap participant’’ (even though the latter terms also are found in the notes 1051 and 1052, supra. Frm 00089 Fmt 4701 Sfmt 4700 30683 Continued E:\FR\FM\23MYR2.SGM 23MYR2 30684 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES2 b. ‘‘Highly Leveraged’’ The Proposing Release set forth two alternative approaches for determining whether a particular entity would be deemed ‘‘highly leveraged.’’ 1067 Under one approach, an entity would be ‘‘highly leveraged’’ if the ratio of its liabilities to equity exceeded 8 to 1; this proposed alternative reflected the fact that the third statutory major participant test excludes certain types of entities.1068 Under the alternative approach, an entity would be ‘‘highly leveraged’’ if the ratio of its liabilities to equity exceeded 15 to 1; this proposed alternative reflected standards for maximum leverage in certain circumstances found in Title I of the Dodd-Frank Act.1069 The proposal further provided that leverage would be measured at the close of business on the last business day of the applicable fiscal quarter, and that liabilities and equity would be determined in accordance with U.S. generally accepted accounting principles (‘‘GAAP’’).1070 ‘‘financial entity’’ definition used for purposes of the end-user clearing exception). See proposed CFTC Regulation § 1.3(mmm)(1). In the context of the ‘‘major security-based swap participant’’ definition, the term ‘‘financial entity’’ also would encompass any ‘‘swap dealer’’ or ‘‘major swap participant,’’ but would not include any ‘‘securitybased swap dealer’’ and ‘‘major security-based swap participant.’’ See proposed Exchange Act rule 3a67– 6(a). 1067 See proposed CFTC Regulation § 1.3(mmm)(2); proposed Exchange Act rule 3a67– 6(b). 1068 The Proposing Release particularly noted that the third statutory major participant test excludes financial institutions subject to capital requirements set by Federal banking agencies, and recognized the possibility those entities were excluded based on the presumption that they generally are highly leveraged. The Proposing Release noted, based on analysis of financial statements, that it appears that those institutions generally have a leverage ratio of 10 to 1, and that this suggested that the ‘‘highly leveraged’’ threshold would have to be lower for those institutions to potentially be subject to the third test. See Proposing Release, 75 FR at 80199. 1069 The Proposing Release noted that Title I provides that the Board must require a bank holding company with total consolidated assets equal to or greater than $50 billion, or a nonbank financial company supervised by the Board, to maintain a debt to equity ratio of no more than 15 to 1 if the FSOC determines ‘‘that such company poses a grave threat to the financial stability of the United States and that the imposition of such requirement is necessary to mitigate the risk that such company poses to the financial stability of the United States.’’ See Dodd-Frank Act section 165(j)(1). The Proposing Release further noted that this 15 to 1 ratio may represent an upper limit to acceptable leverage and that the major participant analysis should use a lower threshold, or, alternatively, that the 15 to 1 ratio provides an appropriate test of whether an entity poses the systemic risk concerns implicated by the major participant definitions. See Proposing Release, 75 FR at 80199. 1070 The Proposing Release also stated that entities that file quarterly reports on Form 10–Q and annual reports on Form 10–K with the SEC would determine their total liabilities and equity based on the financial statements included with VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 In proposing these alternative standards for identifying ‘‘highly leveraged’’ entities, the Commissions recognized that traditional balance sheet measures of leverage are limited as tools for evaluating an entity’s ability to meet its obligations—in part because such measures do not directly account for potential risks posed by specific instruments held on the balance sheet, or for financial instruments held off of the balance sheet. At the same time, the Commissions preliminarily concluded that it was not necessary to use more complex measures of risk-adjusted leverage for these purposes, in part because the third test’s ‘‘substantial position’’ analysis already accounts for such risks. The Commissions also noted the costs that would be associated with causing entities to engage in complex calculations of risk-adjusted leverage.1071 The Proposing Release solicited comment on a variety of issues related to the proposed leverage ratios, including the relative merits of the alternative 8 to 1 and 15 to 1 standards, and potential alternative standards.1072 2. Commenters’ Views a. ‘‘Financial Entity’’ Some commenters recommended that certain types of entities should be excluded from the definition of ‘‘financial entity,’’ on the grounds that those types of entities are more appropriately treated as non-financial end users of swaps for purposes of the Dodd-Frank Act.1073 Commenters specifically suggested that the ‘‘financial entity’’ definition exclude: (i) Centralized hedging and treasury subsidiaries in corporate groups; 1074 (ii) employee benefit plans; 1075 and (iii) cooperative structures.1076 Commenters also requested clarification as to which entities would not be ‘‘subject to capital requirements established by an appropriate Federal banking agency,’’ and hence not subject to the third statutory test.1077 In addition, such filings while all other entities would calculate the value of total liabilities and equity consistent with the proper application of U.S. GAAP. See id. 1071 See id. at 80198–99. 1072 See id. at 80199–200. 1073 See, e.g., letters from CalSTRS dated June 15, 2011 (‘‘CalSTRS II’’), Kraft, Newedge, NRU CFC I and Philip Morris. 1074 See letters from Kraft and Philip Morris. 1075 See letter from CalSTRS II (asserting that there is not a basis to treat ERISA plans as ‘‘financial entities’’ for purposes of the major participant definitions solely to maintain consistency with an ‘‘anomalous’’ statutory provision). 1076 See letter from NRU CFC I. 1077 See letters from ACLI (requesting confirmation that the exclusion from the third PO 00000 Frm 00090 Fmt 4701 Sfmt 4700 commenters addressed the application of the ‘‘financial entity’’ definition to non-U.S. persons.1078 b. ‘‘Highly Leveraged’’ A number of commenters supported the proposed 15 to 1 alternative leverage ratio over the 8 to 1 alternative, with some commenters further suggesting that the final rule should set a leverage ratio higher than 15 to 1, or that the ratio should be reconsidered when more information is available regarding leverage among swap users.1079 One commenter supported the proposed 8 to 1 alternative,1080 and one commenter statutory test extends to entities subject to bank or financial holding companies, entities deemed systemically important under Title I of the DoddFrank Act, and any other persons subject to capital regulation established by a Federal banking regulator) and MetLife (requesting clarification that the exclusion extends to persons subject to regulation and capital requirements on a consolidated basis under federal banking law, and persons that are individually or systemically important financial institutions under Title I). 1078 One commenter took the view that non-U.S. governments and their agencies should be excluded from the ‘‘financial entity’’ definition for purposes of the major participant definition and the Title VII end-user exemption from mandatory clearing. See letter from Milbank. On the other hand, one commenter favored the inclusion of non-U.S. governments in the ‘‘financial entity’’ definition. See meeting with Duffie on February 2, 2011 (suggesting that foreign governments and other foreign jurisdictions, such as municipalities, should be treated as ‘‘financial entities’’ for purposes of the major swap participant definition and other requirements under the Dodd-Frank Act on the grounds that such entities could become sources of systemic risk). The Commissions intend to issue separate releases addressing the application of Title VII to non-U.S. persons. 1079 See letters from ISDA I (suggesting that the wide use of leverage by financial institutions means that the definition should capture only entities with the ‘‘very highest’’ leverage ratios, and that the 15 to 1 ratio should be viewed as a floor for identifying highly leveraged entities given that it is used in Title I to address entities that have already been determined to pose a ‘‘grave threat’’ to the stability of the U.S. financial system), MFA I (stating that 15 to 1 is the more appropriate of the two choices, and that the Commissions could subsequently adjust the ratio after receiving market data on the use of leverage), AIMA I (encouraging the Commissions to adopt the 15 to 1 leverage threshold until an assessment of the impact of the major participant definitions can be completed); Amex (supporting the use of the 15 to 1 ratio, noting that it is consistent with the maximum leverage allowed to entities designated as a grave threat to financial stability under Title I of the Dodd-Frank Act) and CDEU (recommending use of the 15 to 1 standard, based on its consistency with the leverage limit in Title I of the Dodd-Frank Act for entities posing a grave threat to the United States financial system and that ‘‘it would be unreasonable to propose a stricter leverage threshold under the major participant test for nonbank financial end-users,’’ and expressing concern that entities comfortably falling under the 8 to 1 ratio could unexpectedly exceed this threshold during periods of market stress and that sudden designation as a major participant ‘‘could seriously hinder a company from meeting its obligations’’). 1080 See letter from Better Markets I (stating that the 8 to 1 threshold would better serve the purposes E:\FR\FM\23MYR2.SGM 23MYR2 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES2 suggested that the final rule should set a leverage ratio lower than 8 to 1.1081 One commenter suggested a ratio of 12 to 1, consistent with certain capital requirements.1082 Commenters also suggested a variety of methods and adjustments for calculating leverage ratios.1083 Some commenters further suggested that specific leverage tests be applied to particular types of financial entities. For employee benefit plans, commenters particularly stated that a plan’s obligations to pay benefits should not be considered a liability for purposes of the analysis, and the value of the plan’s assets should be used as the denominator for the ratio in lieu of using the non-applicable term ‘‘equity.’’ 1084 Another commenter— which obtains a substantial amount of funding by issuing subordinated debt, rather than equity—expressed the view that the leverage calculation should allow it to treat subordinated debt as equity.1085 Several commenters addressed the application of the leverage ratio to insurance companies in light of the applicable regulatory regimes and their of the Dodd-Frank Act by ‘‘ensuring that more, rather than fewer, financial entities are covered by the risk mitigation and business conduct standards that Congress established’’ for major participants, and that use of the 15 to 1 leverage ratio from Title I of the Dodd-Frank Act is inappropriate because the Title I ratio is used for the ‘‘relatively draconian’’ purpose of imposing leverage limits, while this ratio would be used for ‘‘the more modest purpose of imposing registration requirements’’). 1081 See letter from Greenberger (suggesting that the leverage test should be set at a ratio that is lower than either of the two proposed levels). 1082 See meeting with MFA on February 14, 2011 (MFA representatives making point that ‘‘highly leveraged’’ should be defined in coordination with other regulations under the Dodd-Frank Act, and for example, a requirement that banks hold 8% capital implies a leverage ratio of approximately 12:1). 1083 The suggested adjustments were: to measure the ratio of net current credit exposure to Tier I capital, in a manner similar to that used by bank regulators (see letter from Greenberger); to include as liabilities all unfunded exposures on swaps, both current and potential (see letter from Better Markets I); and to account for the different risk levels of various classes of assets and liabilities and for other factors affecting a person’s riskiness (see letters from CCMR I and MFA I). 1084 See letters from CalSTRS I (also stating that for purposes of determining leverage ratios, the value of the plan’s assets should be determined as of most recent annual valuation rather than quarterly) and APG (stating that only investmentrelated liabilities, rather than anticipated shortfalls in benefit obligations, should be considered in the leverage calculation, and the test should be adjusted to take into account legally binding investment restrictions and other constraints that could be just as effective, or more effective, at reducing insolvency risk as capital requirements that would limit leverage). 1085 See letter from NRU CFC I (stating that this application of the leverage test would be consistent with its financial statements). VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 use of statutorily required accounting methods rather than GAAP.1086 Those commenters took the view that an insurance company’s leverage should be tested based on its risk-based capital ratio or on its statutory accounting statements, with certain adjustments to account for different types of liabilities,1087 or based on whether its insurance regulator believes that it is adequately capitalized.1088 One commenter said that the leverage ratio test should not apply to insurance companies,1089 and another said that application of the leverage ratio test to insurance companies should be coordinated with the FSOC.1090 3. Final Rules a. ‘‘Financial Entity’’ Consistent with the Proposing Release, the final rules defining ‘‘financial entity’’ for purposes of the third major participant test are based on the corresponding ‘‘financial entity’’ definition used in the Title VII exception from mandatory clearing for end users, with certain adjustments to avoid circularity.1091 In this regard, while we are mindful of one commenter’s views that the differences between the major participant definitions and the end-user clearing exception necessitate different ‘‘financial entity’’ definitions,1092 we do not concur with the view that the term ‘‘financial entity’’ should be interpreted independently in these two contexts. Both sets of provisions distinguish between financial and non-financial entities in a way that limits the impact of Title VII on the latter set of entities, and we believe that the definitions should be consistent in light of those parallel purposes. The Commissions are aware, however, that the major participant definitions differ from the mandatory clearing requirements in how they address affiliates. The mandatory clearing requirements include a provision that specifically addresses affiliates of 1086 See letters from ACLI, FSR I, MetLife and NAIC. 1087 See letters from ACLI, FSR I and NAIC. letter from MetLife. 1089 See letter from FSR I. 1090 See letter from NAIC. 1091 See CFTC Regulation § 1.3(mmm)(1); Exchange Act rule 3a67–6(a). Accordingly, this general definition encompasses commodity pools, private funds, ERISA plans, and persons predominately engaged in activities that are in the business of banking or financial in nature, as well as certain dealers or major participants. See note 1066, supra. 1092 See letter from CalSTRS II (ERISA plans should not be included in the definition of ‘‘financial entity’’ for purposes of the major participant definitions). 1088 See PO 00000 Frm 00091 Fmt 4701 Sfmt 4700 30685 persons that qualify for the exception from mandatory clearing for end users,1093 while no such specific provision is included in the major participant definitions. Given this absence, the Commissions believe it is appropriate to modify the final rules defining ‘‘financial entity’’ for purposes of the major participant definitions from the proposal to exclude certain centralized hedging and treasury entities.1094 The Commissions understand that a primary function of such centralized hedging and treasury entities is to assist in hedging or mitigating the commercial risks of other entities within their corporate groups. Although those entities’ activities could constitute being ‘‘in the business of banking or financial in nature,’’ we do not believe that it would be appropriate to treat a person as a ‘‘financial entity’’ for the purposes of the major participant definitions if the person would fall within that definition solely because it facilitates hedging activities involving swaps or security-based swaps by majority-owned affiliates that themselves are not ‘‘financial entities.’’ 1095 Absent this change, the major participant analysis would exclude hedging positions that do not use centralized hedging facilities, but would not exclude identical hedging positions that make use of a centralized hedging facility.1096 Such a result would inappropriately discourage the use of centralized hedging and treasury entities. While the Commissions also have considered the views of commenters that the ‘‘financial entity’’ definition should exclude certain other types of entities—such as employee benefit plans, and cooperatives—the final rules do not provide any such exclusions. As a general matter, the Commissions believe that the ‘‘financial entity’’ definition should be the same for purposes of the major participant 1093 See CEA section 2(h)(7)(D); Exchange Act section 3C(g)(4). 1094 See CFTC Regulation § 1.3(mmm)(2); Exchange Act rule 3a67–6(b). 1095 Consistent with the general inter-affiliate exceptions from the dealer and major participant definitions, see parts II.C and IV.G, for purposes of these rules, the counterparties are majority-owned affiliates if one party directly or indirectly holds a majority ownership interest in the other, or if a third party directly or indirectly holds a majority interest in both, based on holding a majority of the equity securities of an entity, or the right to receive upon dissolution or the contribution of a majority of the capital of a partnership. See CFTC Regulation § 1.3(mmm)(1); Exchange Act rule 3a71–6(b)(2). 1096 We also note that this result is parallel to the Title VII end-user exception from mandatory clearing, which extends to hedging activities of financial entities on behalf of non-financial affiliates. See CEA section 2(h)(7)(D); Exchange Act section 3C(g)(4). E:\FR\FM\23MYR2.SGM 23MYR2 30686 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations definition as it is for purposes of the end-user exception from mandatory clearing.1097 We also have considered the views of some commenters that subsidiaries of bank holding companies, financial holding companies or systemically important financial institutions should be considered to be ‘‘subject to capital requirements established by an appropriate Federal banking agency,’’ and hence not subject to the third statutory major participant test. We nonetheless interpret the term ‘‘subject to capital requirements established by an appropriate Federal banking agency’’ to specifically apply to persons for whom a Federal banking agency directly sets capital requirements. We do not believe that the term should be interpreted to apply to other persons by virtue of their being part of a holding company that is subject to those capital requirements, or otherwise being affiliated with persons subject to those capital requirements, because we do not believe that the mere fact of that relationship is sufficient to control or mitigate the credit risk that those persons pose to their counterparties. b. ‘‘Highly Leveraged’’ i. Leverage Ratio Level mstockstill on DSK4VPTVN1PROD with RULES2 After considering commenters’ views, the Commissions are adopting final rules that define ‘‘highly leveraged’’ to generally mean a ratio of liabilities to equity in excess of 12 to 1.1098 Our adoption of this 12 to 1 standard, rather than the proposed 8 to 1 or 15 to 1 alternatives, takes into account commenters’ views on the alternatives, as well as one commenter’s support for a 12 to 1 ratio.1099 In general, we believe that the structure of the third statutory major participant test—which, unlike the first statutory test, does not permit the exclusion of certain hedging positions— reasonably may be interpreted as reflecting the determination that: (a) higher leverage indicates that an entity poses a heightened risk of being unable to meet its obligations; and (b) such entities should not be permitted to exclude hedging positions from the ‘‘substantial position’’ analysis in light of the counterparty risks those positions pose (even recognizing that these may 1097 Similarly, the Commissions in general are not adopting categorical requests for exclusions from the major participant definitions. See part IV.J, infra. 1098 See CFTC Regulation § 1.3(mmm)(2); Exchange Act rule 3a67–7(a). The final rules defining ‘‘highly leveraged’’ have been renumbered from the proposal for the sake of clarity. 1099 See note 1082, supra, and accompanying text. VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 be lower than counterparty risks posed by comparable non-hedging positions). Commenters who addressed the proposed leverage ratio raised diverse points of view in support of the 8 to 1 and 15 to 1 alternatives, or other standards. A number of those commenters, however, appeared to focus on the outcome of particular leverage ratios—i.e., that a lower leverage ratio likely would lead to more major participants, and that a higher leverage ratio likely would lead to fewer major participants—and to base their conclusions on their views of that outcome. In general, the comments did not reflect an attempt to identify typical leverage ratios for financial entities, or to address the link between leverage and risk. Some commenters specifically supported the use of a 15 to 1 leverage ratio in light of Title I’s use of that ratio.1100 While considering this perspective, we believe it also is appropriate to consider the different purposes for which leverage is addressed in the Title I and major participant contexts. The 15 to 1 leverage provision in Title I reflects a maximum allowable threshold of leverage for certain bank holding companies and nonbank financial companies when a determination has been made that such entities pose a ‘‘grave threat to the financial stability of the United States’’ and that the imposition of this limitation is necessary to mitigate the risks posed by such entities—in essence serving as a hard leverage cap for certain entities that have been deemed risky to the U.S. financial system.1101 In contrast, leverage serves a type of gatekeeper function in the major participant definitions by identifying the amount of leverage that will require a non-bank financial entity to engage in the ‘‘substantial position’’ analysis without excluding hedging positions, rather than seeking to limit the maximum leverage available to those entities. Just as concepts of ‘‘maximum leverage’’ are distinct from concepts of ‘‘high leverage,’’ the use of a 15 to 1 maximum leverage ratio in Title I does not mandate the conclusion that the same 15 to 1 ratio must be used for interpreting the meaning of ‘‘highly leveraged’’ in the major participant definitions.1102 1100 See, e.g., letters from Amex and CDEU. Dodd-Frank Act section 165(j)(1). 1102 We also note that the use of the 15 to 1 ratio of Title I in this context could lead to potentially incongruous results. In particular, if the Commissions were to use the 15 to 1 leverage ratio for the ‘‘highly leveraged’’ definition, then an entity that is deemed to be such a threat to the United 1101 See PO 00000 Frm 00092 Fmt 4701 Sfmt 4700 In considering the definition of the term ‘‘highly leveraged’’ based on the reasoning outlined above, we also are mindful that, as the Proposing Release noted,1103 broker-dealer capital regulations include special provisions that apply when a broker-dealer’s leverage exceeds 12 to 1.1104 While we recognize that these capital regulations have limitations as tools for defining ‘‘highly leveraged’’ for purposes of the major participant definitions due to differences in how leverage would be calculated,1105 we also believe that these regulations are informative regarding the use of leverage in the major participant context given that they highlight an existing link between increased regulatory oversight and the amount of leverage an entity maintains. In light of the reasons noted above for using a leverage ratio below 15 to 1, commenter concerns that a ratio of 8 to 1 would be too low, one commenter’s suggestion of a 12 to 1 leverage ratio, and leverage tests found in brokerdealer capital regulations, the Commissions have determined that a 12 to 1 leverage ratio reflects an appropriate basis for identifying ‘‘highly leveraged’’ financial entities. In making this determination we recognize that other approaches also may be reasonable (e.g., lower thresholds based on the analysis of the leverage of certain financial entities also may be reasonable, as may higher thresholds based on Title I and on other aspects of broker-dealer capital rules). We also recognize, however, that the need to implement the major participant definitions requires that we draw a line. In our view, a 12 to 1 ratio reflects a States financial system that its leverage has been capped pursuant to Title I also would effectively be excepted from the third statutory test of the major participant definitions due to that cap. The 12 to 1 leverage ratio that we are adopting today does not give rise to the same result and therefore does not present the same question of interpretation as to whether this result would be appropriate. 1103 See Proposing Release, 75 FR at 80199 n.152. 1104 Exchange Act rule 15c3–1 provides that a broker-dealer may determine its required minimum net capital, among other ways, by applying a financial ratio that provides that its aggregate indebtedness shall not exceed 1500 percent of its net capital (i.e., a 15 to 1 aggregate indebtedness to net capital ratio). In addition, Exchange Act rule 17a–11 further requires that broker-dealers that use such method to establish their required minimum net capital must provide notice to regulators if their aggregate indebtedness exceeds 1200 percent of their net capital (i.e., a 12 to 1 aggregate indebtedness to net capital ratio). 1105 The measure of aggregate indebtedness in rule 15c3–1 excludes certain secured liabilities, and the measure of net capital excludes certain illiquid assets but includes certain subordinated debt. As a result, the ratios discussed above would not necessarily be equivalent to 15:1 or 12:1 ratios when converted to a balance sheet ratio of liabilities to equity. E:\FR\FM\23MYR2.SGM 23MYR2 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations reasonable location for this line that is appropriate for purposes of the third major participant test, and that reasonably accounts for commenter concerns and the other considerations discussed above. ii. Leverage Ratio Calculation mstockstill on DSK4VPTVN1PROD with RULES2 Consistent with the proposal, the final rules defining ‘‘highly leveraged’’ generally measure leverage as a ratio of a person’s liabilities to equity, as determined in accordance with GAAP.1106 Also, consistent with the proposal, these leverage ratios should be calculated as of the close of business on the last business day of the applicable fiscal quarter, as we do not believe there is any relevant difference among financial entities that would require timing variations. In general, moreover, the Commissions believe that all types of financial entities should be subject to the same methods of measuring leverage, to facilitate the even application of the leverage test. At the same time, we are mindful of the significance of commenter concerns that calculating leverage as a ratio of liabilities to equity consistent with GAAP would lead to inappropriate results for certain types of financial instruments or financial entities. We believe that these concerns are significant enough to warrant one modification of the proposed approach to measuring leverage. In particular, the final rules provide that certain employee benefit plans may: (i) Exclude obligations to pay benefits to plan participants from their measure of liabilities for purposes of the leverage calculation; and (ii) substitute the total value of plan assets for equity for purposes of the leverage calculation.1107 We believe that this change will allow the measure of leverage to more appropriately reflect the risk that those entities pose. Otherwise, we do not believe that it would be appropriate to depart from GAAP measures of equity and liabilities for purposes of identifying highly leveraged entities.1108 1106 See CFTC Regulation § 1.3(mmm)(2); Exchange Act rule 3a67–7(b). The accounting standard setters are currently working on a number of projects that may impact how leverage would be calculated using GAAP. The Commissions will review and potentially adjust their rules in the future to reflect changes in GAAP. 1107 See CFTC Regulation § 1.3(mmm)(2)(ii); Exchange Act rule 3a67–7(b). These provisions specifically apply to employee benefit plans as defined by paragraph (3) and (32) of section 3 of ERISA, consistent with the ERISA exclusion from the first statutory major participant test. 1108 Although commenters raised issues with regard to the application of leverage ratios to VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 G. Application to Inter-Affiliate Swaps and Security-Based Swaps 1. Proposed Approach and Commenters’ Views In the Proposing Release, we stated that the major participant analysis should consider the economic reality of swaps and security-based swaps between affiliates, and preliminarily concluded that swaps or security-based swaps among wholly owned affiliates ‘‘may not pose the exceptional risks to the U.S. financial system that are the basis for the major participant definitions.’’1109 A number of commenters concurred that swaps among affiliates should be excluded from the major participant analysis.1110 At the same time, no commenters expressed support for the Proposing Release’s suggestion that this interpretation be limited to transactions among wholly owned subsidiaries. Instead, several commenters expressed the view that the swaps or securitybased swaps should not be counted for purposes of the major participant analysis when the counterparties are under common control,1111 or otherwise are affiliates.1112 One commenter suggested that the analysis exclude swaps or security-based swaps between entities that are under common control and whose financial statements are consolidated.1113 2. Final Rule After considering commenters’ views, we have concluded that the major insurers, see, e.g., letter from FSR I, we do not believe that it would be appropriate to create a special leverage test for insurers. We note that insurers that are publicly traded companies already file financial statements consistent with GAAP. Also, smaller insurers that do not file GAAP-based financial statements would be able to take advantage of the safe harbor from the major participant calculations. See part IV.M, infra. 1109 See Proposing Release, 75 FR at 80202. 1110 See, e.g., letters from COPE I, FSR I and Encana Marketing (USA) Inc. dated February 22, 2011 (‘‘Encana I’’). Some commenters explained the widespread use of central hedging desks to allocate risk within affiliate groups or to gather risk from within a group and lay off that risk on the market. See, e.g., letters from CDEU, EEI/EPSA, Encana I and FSR I. Also, some commenters noted that including these interaffiliate transactions within the major participant analysis would result in many cases in doublecounting of an entity’s swap or security-based swap activity. See letters from CDEU and FSR I. 1111 See letter from Amex and CDEU. One commenter specifically suggested that we adopt the definition of ‘‘control’’ found in the Bank Holding Company Act. See joint letter from The Bank of Tokyo-Mitsubishi UFJ, Ltd., Mizuho Corporate Bank, Ltd. and Sumitomo Mitsui Banking Corporation. 1112 See, e.g., letters from COPE I, EEI/EPSA, FSR I, Encana I and Utility Group. 1113 See joint letter from ABA Securities Association, ACLI, FSR, FIA, Institute of International Bankers, ISDA and SIFMA. PO 00000 Frm 00093 Fmt 4701 Sfmt 4700 30687 participant definitions should not encompass a person’s swaps or securitybased swaps for which the counterparty is a majority-owned affiliate. As noted in our discussion of inter-affiliate activities in the context of the dealer definitions, market participants may enter into such inter-affiliate swaps or security-based swaps for a variety of purposes. When swaps and securitybased swaps are entered into to allocate risk within a corporate group and do not pose a high likelihood of risk to the broader market—as we believe would be the case with majority ownership—we do not believe that their swaps and security-based swaps raise the systemic risk and other concerns that major participant regulation is intended to address. For this reason, we do not believe that this interpretation needs to be limited to swaps or security-based swaps among wholly owned affiliates, as the Proposing Release had indicated. Accordingly, the final rules provide that a person may exclude particular swaps or security-based swaps from the analysis of whether the person is a major participant, so long as the counterparties to those swaps or security-based swaps are majorityowned affiliates.1114 In taking this approach, we have also considered alternatives suggested by commenters. For example, while one commenter suggested that we allow the exclusion of all swaps or security-based swaps between entities under common control, we believe that such an approach would be overly inclusive for the purpose of identifying transactions that should be excluded from the major participant analysis, given that common control by itself does not ensure that two entities’ economic interests are sufficiently aligned.1115 Also, one commenter suggested that the interaffiliate exclusion should apply to swaps and security-based swaps between affiliates whose financial statements are consolidated, but, as we 1114 See CFTC Regulation § 1.3(hhh)(4); Exchange Act rule 3a67–3(e). A person’s market-facing swap or security-based swap positions, including those taken to lay off risk assumed from a majority-owned affiliate, must still be included in the person’s substantial position and counterparty exposure calculations. For the purposes of this rule, and consistent with the general inter-affiliate exception from the dealer definitions, see part II.C, supra, counterparties are majority-owned affiliates if one party directly or indirectly owns a majority interest in the other, or if a third party directly or indirectly owns a majority interest in both, based on the right to vote or direct the vote of a majority of a class of voting securities of an entity, the power to sell or direct the sale of a majority of a class of voting securities of an entity, or the right to receive upon dissolution or the contribution of a majority of the capital of a partnership. 1115 See part II.C.2, supra. E:\FR\FM\23MYR2.SGM 23MYR2 30688 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations addressed in the context of the dealer definitions, we do not believe that the scope of this exclusion should be exposed to the risk of future changes in accounting standards.1116 H. Application to Positions of Affiliated Entities and to Guarantees 1. Proposed Approach The Proposing Release expressed the preliminary view that when a parent is the majority owner of a subsidiary entity, the subsidiary’s swap or securitybased swap positions may be aggregated at the parent for purposes of the major participant analysis, on the grounds that the parent effectively is the beneficiary of the transaction. At the same time, the Proposing Release acknowledged that there could remain questions as to whether the requirements applicable to major participants—such as capital, margin and business conduct requirements—should be placed upon the parent or the subsidiary.1117 The Proposing Release solicited comment on a number of aspects of these issues, including whether attribution would be appropriate when there is less than majority ownership, or when a parent provides guarantees on behalf of its subsidiaries. The Proposing Release also solicited comment with regard to implementation issues.1118 2. Commenters’ Views A number of commenters expressed the view that the Commissions should not aggregate the positions of affiliates to the parent, arguing that legal separation should be respected unless there is some evidence that separate affiliates are being used to evade regulation.1119 Other commenters took the view that aggregation of affiliates’ positions may be appropriate in some circumstances, such as when aggregation would accurately reflect the structure of a corporate group or its participation in the derivatives market.1120 One commenter 1116 See text accompanying note 350, supra. Proposing Release further recognized that it may be appropriate at times to place the requirements upon the subsidiary to the extent the subsidiary is acting on behalf of the parent. See Proposing Release, 75 FR at 80202. 1118 See id. 1119 See letters from FSR I, ISDA, MetLife and Newedge. Certain of those commenters also warned of problems that could arise if the positions of international affiliates were aggregated, due to conflicting regulations potentially applicable to such entities. See letters from ISDA I, MetLife and Newedge. The Commissions are addressing issues related to the application of the major participant definitions to non-U.S. persons in separate releases. 1120 See letters from CDEU (suggesting that control should be interpreted narrowly for purposes of the major participant test such that affiliated positions would only be aggregated if there is whole mstockstill on DSK4VPTVN1PROD with RULES2 1117 The VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 recommended that if the Commissions choose to require the aggregation of affiliate positions for purposes of the major participant test, the Commissions also should provide a mechanism for entities to receive ‘‘disaggregation’’ relief upon a showing that the affiliates are acting autonomously.1121 Some commenters argued that positions should not be consolidated for purposes of the major participant analysis even when a parent guarantees the obligations of a subsidiary.1122 Other commenters, however, expressed less opposition to aggregation in the presence of a guarantee or credit support.1123 Commenters also addressed the application of these principles to particular types of entities. Some commenters took the view that positions guaranteed by financial guarantors should not be attributed to those entities for purposes of the major participant analysis.1124 Other commenters stated ownership or consolidation for accounting purposes, and exercise of actual control in terms of ownership and management) and ACLI (suggesting flexibility such that an entity with independent credit and no guarantee or credit support from a parent could be treated separately, but a corporate group could consolidate its affiliates’ positions if that would accurately reflect its participation in the derivatives market). 1121 See letter from Newedge. 1122 See letters from APG (stating that the aggregation of inter-affiliate guaranteed transactions would raise costs without providing a corresponding benefit to the financial system, and that principal obligors and guarantors pose separate credit risks, which are already priced into the positions, and that guarantees are not traditionally regulated as swaps), CDEU (objecting to attributing the positions of an end-user affiliate that relies on a parent for credit support, primarily out of concern that an end-user that might otherwise avail itself of the end-user clearing exception might be forced to clear its transactions if they were attributed to the major participant parent), ISDA I and Twelve Firms (stating that the statutory major participant definitions do not indicate that they encompass contingent credit support arrangements, and that credit exposures of subsidiaries already will be addressed through regulation of the subsidiary). 1123 See letters from FSR I (suggesting that there may be some situations in which the positions of different entities in a corporate group should be aggregated, such as when ‘‘a parent entity guarantees the obligations of its subsidiaries that are engaging in swaps’’) and MetLife (stating that ‘‘it is not appropriate to require aggregation of subsidiaries’ swaps at the parent level unless the parent is providing a guarantee or credit support for the subsidiaries’ obligations’’); see also letter from ACLI (stating that the positions of entities that do not have a guarantee or credit support from a parent are entitled to an individualized determination of their status under the major participant test). 1124 See letters from AFGI (arguing against attribution on the grounds that the guarantors are typically not exposed to a fluctuating termination value of interest rate swaps for these types of transactions due to the fact that they do not guarantee that amount, but rather only guarantee continued payments of these policies, and also that they are subject to the standard underwriting process and thus are subject to comprehensive regulation) and joint letter from MBIA Inc., MBIA PO 00000 Frm 00094 Fmt 4701 Sfmt 4700 that the positions of a special purpose vehicle should not be aggregated with its sponsor where there is no recourse to the sponsor for the vehicle’s obligations.1125 One commenter requested clarification that positions of joint ventures would not be aggregated with those of another entity if the positions are not consolidated on the other entity’s balance sheet.1126 Commenters further took the view that ERISA plans should not be aggregated with those of plan sponsors for purposes of the major participant tests, noting that plans and sponsors are separate legal entities, file separate financial statements, are subject to separate regulatory schemes, and that plan sponsors are prohibited from providing credit support or guarantees to ERISA Title I plans.1127 Two commenters addressed operational compliance issues that would be raised if positions are aggregated for purposes of the major participant analysis. One commenter suggested that a corporate group that falls within the major participant definition due to its aggregate positions should be able to designate a single entity to undertake compliance on behalf of the other affiliates.1128 Another commenter stated that when the aggregated positions of a corporate group results in major participant designation, the Commissions should Insurance Corp. and National Public Finance Guarantee Corp. (‘‘MBIA’’) (arguing against attribution on the grounds that the economic exposure to the financial guarantor is the equivalent of having underwritten a fixed rate bond issued by the particular municipal entity, and such exposures are subject to the normal underwriting process and significant risk management and regulatory oversight). 1125 See letters from American Securitization Forum (suggesting that aggregation is not appropriate when the risk is contained within the special purpose vehicle, and noting that special purpose vehicles often bear the entire economic risk of a security-based swap transaction and are bankruptcy remote, so the failure of a special purpose vehicle to meet its obligations would not have a rippling effect onto its sponsor) and FSR I (stating that the major participant determination should focus on a special purpose entity itself, and not its sponsor or transferor, in circumstances where securitization vehicles have been consolidated with sponsors or transferors for financial accounting purposes but a counterparty would have to conduct a separate credit analysis on the special purpose entity, and its obligations are nonrecourse to the sponsor or transferor). 1126 See letter from CDEU (noting that nonconsolidated joint ventures typically enter into their own swaps and these transactions are not included on the balance sheet of a minority holder in a joint venture). 1127 See letters from CDEU and ERISA Industry Committee. 1128 See letter from FSR I (suggesting that a corporate group should be permitted to designate a single entity or a small number of entities as the registered major participant, with other entities in the group relying on that entity for compliance). E:\FR\FM\23MYR2.SGM 23MYR2 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations exempt from major participant regulation all affiliates in the corporate group that otherwise would qualify for the end-user clearing exception.1129 3. Final Interpretation After considering commenter concerns and the underlying issues, we are revising certain of the preliminary views we expressed in the Proposing Release. In particular, we no longer take the position that a subsidiary’s swap or security-based swap position as a matter of course should be attributed to the subsidiary’s majority-owner parent. Instead, consistent with the approach discussed below with regard to managed accounts,1130 an entity’s swap or security-based swap positions in general would be attributed to a parent, other affiliate or guarantor for purposes of the major participant analysis to the extent that the counterparties to those positions would have recourse to that other entity in connection with the position. Positions would not be attributed in the absence of recourse.1131 We believe this approach in general appropriately reflects the risk focus of the major participant definitions by providing that entities will be regulated as major participants when they pose a high level of risk in connection with the swap and security-based swap positions they guarantee.1132 Indeed, the events 1129 See letter from CDEU. part IV.I, infra. 1131 In taking this position, we are not suggesting that the presence of a guarantee would be determinative of other issues arising under Title VII. For example, the fact that a parent that is a ‘‘financial entity’’ guarantees a subsidiary’s swap or security-based swap positions would not foreclose the subsidiary from taking advantage of the exception from mandatory clearing that is available to commercial end-users. 1132 In reaching this conclusion, we have been mindful of views expressed by some commenters that the mere fact of a guarantee should not be enough to require the attribution of a position to a guarantor. We believe, however, that this approach is best suited to address the risk focus of the major participant definitions. We further believe that the statutory definition’s language that addresses persons who ‘‘maintain’’ substantial positions or ‘‘whose’’ positions create substantial counterparty exposure is consistent with this approach. We also have considered arguments that the major participant definition should not extend to financial guarantee insurers. We nonetheless believe that when an insurer guarantees the performance of other parties’ swap or securitybased swap positions, in an amount that is greater than the applicable major participant thresholds, it would be appropriate to regulate that entity as a major participant. When the guaranteed positions are large enough, the risks associated with those positions and the repercussions of the guarantor’s default would appear to be within the ambit of the risks that that the major participant definitions were intended to capture. In reaching this conclusion, the Commissions are not expressing a view regarding whether financial guarantee insurance is a swap or security-based swap. See Product Definitions Proposal, note 3, supra. mstockstill on DSK4VPTVN1PROD with RULES2 1130 See VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 surrounding the failure of AIG FP highlights how the guarantees can cause major risks to flow to the guarantor.1133 Even in the presence of a guarantee, however, we do not believe that it is necessary to attribute a person’s swap or security-based swap positions to a parent or other guarantor if the person already is subject to capital regulation by the CFTC or SEC (i.e., swap dealers, security-based swap dealers, major swap participants, major security-based swap participants, FCMs and broker-dealers) or if the person is a U.S. entity regulated as a bank in the United States. Positions of those regulated entities already will be subject to capital and other requirements, making it unnecessary to separately address, via major participant regulations, the risks associated with guarantees of those positions.1134 We recognize that attribution of swap or security-based swap positions to a parent or guarantor for purposes of the major participant analysis can raise special issues with regard to operational compliance. These include, for example, issues as to the application of the transaction-focused requirements applicable to registered major participants (e.g., certain requirements related to trading records and transaction confirmations), given that the entity that directly is the party to the swap or security-based swap may be better positioned to comply with those requirements. For those transactionfocused requirements, we believe that an entity that becomes a major participant by virtue of swaps or security-based swaps directly entered into by others must be responsible for compliance with all applicable major participant requirements with respect to those swaps or security-based swaps (and must be liable for failures to comply), but may delegate operational compliance with transaction-focused requirements to entities that directly are party to the transactions. The entity that is the major participant, however, cannot delegate compliance duties with the entity-level requirements applicable 1133 ‘‘AIGFP’s obligations were guaranteed by its highly-rated parent company * * * an arrangement that facilitated easy money via much lower interest rates from the public markets, but ultimately made it difficult to isolate AIGFP from its parent, with disastrous consequences.’’ The AIG Rescue, Its Impact on Markets, and the Government’s Exit Strategy, note 913, supra, at 20. 1134 As a result of this interpretation, holding companies will not be deemed to be major participants as a result of guarantees to certain U.S. entities that already are subject to capital regulation. The Commissions intend to address guarantees provided to non-U.S. entities, and guarantees by non-U.S. holding companies, in separate releases. PO 00000 Frm 00095 Fmt 4701 Sfmt 4700 30689 to major participants (e.g., requirements related to registration and capital).1135 I. Application to Managed Accounts 1. Proposed Approach The Proposing Release expressed the preliminary view that the major participant definitions should not be interpreted to cause asset managers or investment advisers to be major participants by virtue of the swap and security-based swap positions of the accounts that they manage.1136 In addition, the Proposing Release expressed the preliminary view that the managed positions for which a person is a beneficial owner should be aggregated with the person’s other positions for the purpose of determining whether the beneficial owner is a major participant.1137 2. Commenters’ Views Numerous commenters supported the view that the major participant definitions should not be construed to aggregate the accounts managed by asset managers or investment advisers when determining whether a manager or adviser itself is a major participant.1138 One commenter requested that the final rules codify this principle.1139 Some commenters opposed the possibility that the swap or securitybased swap positions of mutual funds would be attributed to fund investors for purposes of the major participant analysis, emphasizing that the fund is the entity that bears the credit exposure.1140 Some commenters also opposed the possibility that a swap or security-based swap position of a managed account may be attributed to the account’s beneficial owner when the counterparty to the position does not 1135 This type of attribution may also be expected to raise special issues of application in the context of guarantees involving swap or security-based swap positions of non-U.S. entities. The Commissions intend to address those issues in separate releases. 1136 In reaching this preliminary conclusion, we considered the text of the major participant definitions, as well as a colloquy on the Senate floor that addressed the status of managed accounts for purposes of the major participant definitions. See Proposing Release, 75 FR at 80201 & n.162. The Proposing Release also noted that the Commissions have anti-evasion authority to the extent that persons seek to allocate swaps or security-based swaps among different accounts to seek to evade the regulations applicable to major participants. See id. at 80201. 1137 See id. 1138 See, e.g., letters from BlackRock I and Fidelity. 1139 See letter from Fidelity (particularly addressing fund managers). 1140 See letter from BlackRock and joint letter from ICI and SIFMA AMG. E:\FR\FM\23MYR2.SGM 23MYR2 30690 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES2 have recourse to the beneficial owner’s assets.1141 One commenter encouraged the Commissions to consider developing anti-evasion measures if necessary, but cautioned that the rules should recognize that there are legitimate business reasons to structure separate, individually managed funds.1142 Another commenter dismissed concerns that entities may spread assets among many asset managers or use separate trading agreements to avoid regulation.1143 In addition, commenters raised related issues regarding the potential attribution of positions for purposes of the major participant analysis. Some commenters expressed the view that insurance company separate accounts should be excluded from the major participant determination for the insurer, because those separate accounts generally are segregated from the insurance company’s other accounts.1144 Two commenters requested clarification as to how swap and security-based swap positions of funds with a ‘‘master-feeder’’ structure should be allocated for the major participant determinations.1145 1141 See letters from SIFMA AMG II (stating that ISDA Master Agreements commonly provide that the counterparty to the transaction does not have recourse to the accountholder’s other assets held in different accounts) and Fidelity (stating that when counterparties look solely to the credit and assets of an individual account, the actual risks to the counterparty are tied to and limited by the activities of the account; also stating that requiring aggregation of separate accounts based on beneficial ownership would be complicated, costly, and present substantial operational and legal complexities); see also letter from BlackRock I (stating the understanding that the Proposing Release’s reference to beneficial ownership to require that separate account positions be attributed to the owner of the separate account, and stating that this result would be consistent with the definitions’ focus on the persons whose positions create credit risk). Commenters also emphasized potential impracticalities of requiring asset managers to be responsible for making major participant determinations on behalf of beneficial owners. See, e.g., letter from SIFMA AMG II. 1142 See letter from AIMA I. 1143 See letter from SIFMA AMG II (arguing that it would be unlikely for this sort of evasion to actually occur since such tactics would be prohibitively expensive and operationally burdensome, and further stating that the Commissions could address such concerns through their anti-evasion authority). Also, one commenter suggested that major participant obligations should be limited in their territorial scope and should only apply to U.S. funds or those funds that are otherwise regulated in the U.S. See letter from AIMA I. The Commissions are addressing issues related to the application of the major participant definitions to non-U.S. persons in separate releases. 1144 See letters from ACLI, FSR I and MetLife. 1145 See letters from MFA I (stating that in masterfeeder fund structures, money that is invested flows to the master fund for actual investing or trading, VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 3. Final Interpretation Consistent with the approach set forth in the Proposing Release, the Commissions do not believe that it is necessary to consider the swap or security-based swap positions of the client accounts managed by asset managers or investment advisers when determining whether those entities are major participants. In reaching this conclusion we particularly are influenced by the fact that the statutory definitions specifically address entities that ‘‘maintain’’ substantial positions or ‘‘whose’’ outstanding swaps and security-based swaps create substantial counterparty exposure. Our conclusion also is influenced by the fact that it would not appear appropriate to impose certain regulations applicable to major participants (e.g., capital) upon those entities.1146 Separately, after carefully considering commenters’ views and the purposes of major participant regulation, we are modifying the preliminary views expressed in the Proposing Release regarding the application of the major participant analyses to the beneficial owners of managed swap and securitybased swap positions. In particular, we conclude that the major participant analysis that applies to the beneficial owners of those positions should focus on where the risk associated with those positions ultimately resides, given how the statutory major participant definitions focus on the risks posed by large swap or security-based swap positions. Thus, for example, if the counterparties to a swap or securitybased swap position within a managed account have recourse only to the assets of that account in the event of default— and lack recourse to other assets of the beneficial owners—we do not believe that it would be appropriate to attribute that position to its beneficial owner. 1147 Conversely, to the extent that the counterparty to that position also has recourse to the beneficial owner, it would be appropriate to attribute the positions to the beneficial owner for purposes of the major participant analysis.1148 and further explaining that the master fund: Is the party to the master trading agreements; negotiates the individual transactions; holds assets; receives the margin calls; is ultimately responsible for posting collateral; and is the entity to whom recourse is generally limited) and CCMR I. 1146 We do not believe that it is necessary to codify this interpretation. 1147 Thus, for example, there would not be recourse to the owners of shares in a registered investment company that maintains swap or security-based swap positions. 1148 For example, under some circumstances the positions within the managed account may make use of a credit support annex entered into by the PO 00000 Frm 00096 Fmt 4701 Sfmt 4700 We believe that this general approach of attributing positions when recourse is possible also is applicable with respect to related issues raised by commenters, including issues related to insurance company separate accounts and masterfeeder fund arrangements. For those situations the same principle would apply—positions within an account or entity may be attributed to another entity for purposes of the major participant analysis if the counterparties to those positions can seek recourse from that other entity. J. Requests for Exclusion of Certain Entities From the Major Participant Definitions 1. Proposed Approach In advance of the Proposing Release, a number of commenters argued that the Commissions should exclude various types of entities from the major participant definitions.1149 While the proposed rules did not incorporate any such exclusions, the Proposing Release solicited comment as to potential exclusions for: Entities that maintain legacy portfolios, investment companies, ERISA plans, registered broker-dealers and/or registered FCMs, sovereign wealth funds, banks, stateregulated insurers, private and state pension plans, and registered DCOs or clearing agencies.1150 2. Commenters’ Views Several commenters supported categorical exclusions from the major participant definitions for various types of entities. Commenters particularly urged the Commissions to provide exclusions for: • Entities that maintain legacy portfolios of swaps and security-based swaps that are in run-off;1151 • Registered investment companies and related investment advisers;1152 • ERISA plans, other pension funds, and endowments;1153 beneficial owner. In that case, the counterparty to the account’s swaps and security-based swaps may have legal recourse to the beneficial owner, making it appropriate to attribute the position to the beneficial owner for purposes of the major participant analysis. 1149 These comments were submitted in response to the ANPRM. See notes 4 and 5, supra. 1150 See Proposing Release, 75 FR at 80202–03. 1151 See, e.g., letters from Canadian MAVs, ISDA I and MBIA. 1152 See letters from Fidelity and Vanguard and joint letter from ICI and SIFMA AMG. 1153 See letters from CDEU, ERISA Industry Committee and SIFMA AMG II (addressing ERISA plans); see also letters from ABC/CIEBA, CalSTRS I, Fidelity and SIFMA AMG II, (addressing government plans) and letter from Government of Singapore Investment Corp. (‘‘GIC’’) (addressing other pension plans and endowments). But see letter from AFSCME (urging caution with respect to E:\FR\FM\23MYR2.SGM 23MYR2 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES2 • Insurance companies;1154 • Certain registered FCMs and brokerdealers.1155 • End users; 1156 and • Various types of non-U.S. persons, including: foreign governments and their agencies and instrumentalities (such as central banks, treasury ministries, export agencies and governmental financing authorities),1157 international organizations and multilateral development banks,1158 sovereign wealth funds,1159 and nonU.S. entities subject to comparable foreign regulation.1160 Commenters articulated a range of rationales in support of such exclusions. These included arguments that particular types of entities: (i) Are unlikely to meet one or more of the major participant tests; 1161 (ii) already are subject to regulation (and in some cases are subject to prudential limits on their use of swaps or security-based swaps);1162 (iii) do not pose systemic a full exclusion of plan swaps from major participant consideration). 1154 See letters from AFGI (supporting exclusion for state-regulated insurers), NAIC (supporting exclusion for state-regulated insurers to the extent they are using derivatives for the purpose of hedging and not engaging in systemically significant derivatives activities determined by the Financial Stability Oversight Counsel), ACLI (supporting exclusion for life insurers) and AIA (supporting exclusion for property-casualty insurers). 1155 See letter from Newedge (supporting exclusion for registered FCMs and broker-dealers that engage principally in customer swap facilitation activities but not in other activities of swap or security-based swap dealers). 1156 Commenters making this point varied in their phrasing of the requested exclusion. One request asked for the exclusion of any company (regardless of its primary business) that uses swaps predominantly to hedge business risks and that does not pose systemic risk. See letter from CDEU. Another commenter asked for the exclusion of any end user employing prudent risk management. See letter from NAIC. And one commenter asked for the exclusion of energy companies that use swaps to hedge commercial risks. See letter from EDF Trading. 1157 See letters from Milbank Tweed and Norges Bank Investment Management and meeting with ¨ Kreditanstalt fur Wiederaufbau (‘‘KfW’’). 1158 See letter from World Bank Group. 1159 See letters from China Investment Corporation (‘‘CIC’’) and GIC. 1160 See letters from Newedge and SIFMA AMG II. 1161 See letters from AIMA I (addressing hedge fund managers registered as investment advisers); AIA (addressing property-casualty insurers) and Newedge (addressing FCMs and broker-dealers). 1162 See letters from Fidelity and Vanguard and joint letter from ICI and SIFMA AMG (addressing registered investment companies and their advisors), ABC/CIEBA, CDEU, ERISA Industry Committee and Fidelity (addressing ERISA plans and government benefit plans), ACLI (addressing life insurers), AIA (addressing property-casualty insurers), NAIC (addressing state-regulated insurers), Newedge (addressing FCMs and brokerdealers) and GIC (addressing sovereign wealth funds). VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 risk 1163 and/or the type of counterparty risk contemplated by Title VII; 1164 or (iv) do not raise concerns given that they would remain subject to the clearing, exchange trading, and reporting requirements of Title VII.1165 Also, some commenters maintained that regulating non-U.S. entities as major participants would raise issues with respect to extra-territoriality, international comity and sovereignty.1166 In contrast to these requests, one commenter urged that the benefits arising from regulation of major participants be considered in determining whether to create carveouts from the participant definitions that are not provided in the statute.1167 3. Final Rules After considering the comments received and the underlying issues, the Commissions have determined not to provide categorical exclusions from the major participant definitions for the types of entities discussed by commenters. a. Entities That Maintain Legacy Portfolios Commenters that supported the exclusion of entities with legacy portfolios of swaps or security-based swaps emphasized that those portfolios are in run-off, and that those entities generally do not engage in ongoing swap or security-based swap activity.1168 1163 See letters from ABC/CIEBA and CDEU (addressing ERISA plans), ICI I and Vanguard (addressing registered investment companies), ACLI (addressing life insurers), CDEU and NAIC (addressing end users), and letter from CIC and meeting with Weil (addressing sovereign wealth funds). 1164 See letters from CDEU and ERISA Industry Committee (addressing ERISA plans) and letter from GIC and meeting with Weil (addressing sovereign wealth funds). 1165 See letters from Vanguard (addressing registered investment companies), Newedge (addressing FCMs and broker-dealers), and CIC (addressing sovereign wealth funds). 1166 See letters from CIC, GIC, and Milbank Tweed and meeting with KfW (addressing foreign governments and their agencies and instrumentalities), meeting with Weil (addressing sovereign wealth funds)and letter from World Bank Group (addressing international organizations and multilateral development banks). 1167 See letter from AFSCME. 1168 See letters from AFGI, BlackRock I, Canadian MAVs, ISDA I and MBIA and meetings with Athilon Structured Investment Advisors (‘‘Athilon’’) on April 18, 2011 and with Cypress Group, Invicta Financial Group, Primus Asset Management, Inc., and Quadrant Structured Investment Advisors on April 7, 2011. Although the Proposing Release specifically addressed granting an exclusion in connection with legacy positions entered into by monoline insurers and credit derivative product companies, commenters expressed the view that such an exclusion should apply to other types of entities PO 00000 Frm 00097 Fmt 4701 Sfmt 4700 30691 Several of those commenters further expressed concerns that imposing the regulations applicable to major participants—particularly margin and capital rules—upon these entities could cause them to default on their obligations and lead to market disruption.1169 In the view of the Commissions, the fact that these entities no longer engage in new swap or security-based swap transactions does not overcome the fact that entities that are major participants will have portfolios that are quite large and could pose systemic risk to the U.S. financial system. We are mindful of the significance of concerns that regulating entities that maintain legacy portfolios has the potential to lead to defaults and disruption. We do not believe, however, that these concerns are best addressed by excluding those entities from major participant regulation. Instead, in adopting substantive rules applicable to major participants, the Commissions intend to pay particular attention to the special issues raised by the application of those rules to legacy portfolios.1170 Moreover, to the extent that these types of concerns remain following the promulgation of those final substantive rules, the Commissions may entertain requests for relief or guidance on a caseby-case basis. b. Other Domestic Entities Commenters also raised concerns regarding duplicative regulation for entities that already are subject to other types of regulation (e.g., state-regulated insurers, SEC-regulated registered investment companies and brokerdealers, and CFTC-regulated registered FCMs). The final rules nonetheless provide no such exclusion. The DoddFrank Act provided for the regulation of major participants against the backdrop of existing state and federal regulation, without opting to categorically exclude particular types of entities. Indeed, the definitions explicitly anticipate that that maintain legacy portfolios, such as certain special purpose vehicles. See letters from BlackRock I, Canadian MAVs and ISDA. 1169 See letters from Athilon, BlackRock I, Canadian MAVs, and ISDA I. 1170 For example, in conjunction with the SEC’s proposed margin and capital rules applicable to major participants, the SEC expects to request comment on how the rules should apply to entities with legacy portfolios. E:\FR\FM\23MYR2.SGM 23MYR2 30692 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES2 pension plans 1171 and banks 1172—both of which are subject to existing regulation—may be major participants. Major participant regulation provides a regulatory structure prescribed by the Dodd-Frank Act to address the risks posed by entities whose swap or security-based swap positions are large enough to satisfy the major participant definitions. Other types of regulations to which these entities may be subject serve different objectives 1173 that are not substitutes for major participant regulation.1174 The Commissions expect that only a very few entities within a given category may meet the test of being a major swap participant—or even be close to the various thresholds for meeting that test. Entities that do not meet the thresholds 1171 The first major participant test (but not the second or third tests) excludes positions maintained by certain employee benefit plans for the primary purpose of hedging or mitigating any risk directly associated with the operation of the plan. See CEA section 1a(33)(A)(i)(II); Exchange Act section 3(a)(67)(A)(ii)(I). This tailored exclusion of certain pension plan positions suggests that Congress did not intend to broadly exclude such plans from the other two prongs or from the major participant definitions as a whole. The fact that, as two commenters noted (see letters from ABC/CIEFA and CDEU), the CFTC previously has relied on the regulatory structure already governing ERISA plans as a basis to not regulate these plans in other certain unrelated contexts does not alter this conclusion. 1172 The third major participant test excludes entities that are subject to bank capital standards, which suggests that such entities may be eligible to be major participants under the first and second tests. Also, the capital and margin requirements applicable to major swap participants and major security-based swap participants (see Dodd-Frank Act sections 731 and 764, respectively) do not apply to major participants subject to capital rules set by bank regulators, which further indicates that such entities may be major participants. 1173 As some commenters noted, entities excluded from the major participant definitions nonetheless may be subject to other requirements of general applicability imposed by Title VII, such as clearing, trade execution, and reporting requirements. Even where that is the case, though, these requirements serve separate and independent purposes. They do not stand as a substitute for the protections that Congress has prescribed with respect to major participants in particular. 1174 For example, as noted above, some commenters stated that the major participant definitions should not apply to investment companies registered under the ICA. See, e.g., letters from Fidelity, ICI I and Vanguard. However, we are not adopting any such exclusions in part because the major participant definitions focus on the market impacts of an entity’s swap and securitybased swap positions and the risk to the U.S. financial system generally, areas that are not the focus of the regulation of investment companies under the ICA. Moreover, based on our understanding of the swap and security-based swap activity of registered investment companies, we believe that registered investment companies generally are not likely to meet the thresholds of the major participant definitions. We will continue to monitor the effects of the rules we are adopting today to help ensure that they do not result in any inadvertent consequences for registered investment companies, or other entities registered with the SEC or CFTC. VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 of the major participant definitions do not need an exclusion from those definitions. Further, as noted elsewhere in this Adopting Release, the Commissions are permitting entities to rely on a ‘‘safe harbor’’ when their positions are far below any threshold for any particular quarter. Some of the entities for which exclusion has been sought may be expected to fall within the safe harbor. Those comparatively fewer entities that will be closer to a particular threshold, by contrast, should not be excused on a per se basis from completing the calculations set forth in these rules and, if the calculations demonstrate that the entity meets the test of a major participant, from compliance with the requirements for major participants set forth by Congress. At the same time, the Commissions recognize the benefits of efficiently regulating major participants that are separately registered with and regulated by the CFTC or SEC (such as registered FCMs or broker-dealers).1175 If any such registrants are required also to register as major participants, the CFTC and SEC would seek to coordinate their regulatory oversight as appropriate to achieve the independent purposes of major participant regulation and those separate regulatory requirements, while avoiding unnecessary duplication.1176 1175 The Commissions also sought comment as to whether the major participant definitions should apply to derivatives clearing organizations or clearing agencies, but received no comments in response to this inquiry. Nonetheless, the Commissions do not believe that Congress intended derivatives clearing organizations registered with the CFTC or clearing agencies registered with the SEC to be registered or regulated as major participants. The CFTC and the SEC already exercise substantive regulatory oversight over these clearinghouses, authority that was enhanced by Title VII. Further, Title VIII of the Dodd-Frank Act provides for the supervision of systemically important derivatives clearing organizations and clearing agencies. See Dodd-Frank Act Title VIII. We do not believe that Congress intended to place a third layer of oversight on those entities by subjecting them to additional regulation as major participants, and we do not interpret the major participant definitions to do so. 1176 For many years, the Commissions have coordinated their examination of dually-registered FCM/BDs through working groups including the Joint Audit Committee and the Intermarket Financial Surveillance Group. Moreover, pursuant to Title IV of the Dodd-Frank Act, the CFTC and SEC have issued joint reporting rules for advisors to private funds that are dually registered with the SEC as investment advisers and with the CFTC as commodity pool operators or commodity trading advisors. See CFTC and SEC, Reporting by Investment Advisers to Private Funds and Certain Commodity Pool Operators and Commodity Trading Advisors on Form PF; Final Rule, 76 FR 71127 (Nov. 16, 2011). PO 00000 Frm 00098 Fmt 4701 Sfmt 4700 c. Foreign Entities Commenters 1177 discussed the major participant definitions in the context of foreign governments and various entities related to foreign governments 1178 (i.e., foreign central banks,1179 international financial institutions 1180 and sovereign wealth funds). The CFTC provides the following guidance with respect to the major swap participant definition and the swap dealer definition.1181 As an initial matter, foreign entities are not necessarily immune from U.S. jurisdiction for commercial activities undertaken with U.S. counterparties or in U.S. markets.1182 In accordance with 1177 See letters from CIC, GIC, Milbank Tweed, Norges Bank Investment Management and the World Bank, and meetings with KfW and Weil. 1178 For this purpose, we consider that the term ‘‘foreign government’’ includes KfW, which is a non-profit, public sector entity responsible to and owned by the federal and state authorities in Germany, mandated to serve a public purpose, and backed by an explicit, full, statutory guarantee provided by the German federal government. 1179 For this purpose, we consider the Bank for International Settlements, in which the Federal Reserve and foreign central banks are members, to be a foreign central bank. See https://www.bis.org/ about/orggov.htm. 1180 For this purpose, we consider the ‘‘international financial institutions’’ to be those institutions defined as such in 22 U.S.C. 262r(c)(2) and the institutions defined as ‘‘multilateral development banks’’ in the Proposal for the Regulation of the European Parliament and of the Council on OTC Derivative Transactions, Central Counterparties and Trade Repositories, Council of the European Union Final Compromise Text, Article 1(4a(a)) (March 19, 2012). There is overlap between the two definitions, but together they include the following institutions: the International Monetary Fund, International Bank for Reconstruction and Development, European Bank for Reconstruction and Development, International Development Association, International Finance Corporation, Multilateral Investment Guarantee Agency, African Development Bank, African Development Fund, Asian Development Bank, Inter-American Development Bank, Bank for Economic Cooperation and Development in the Middle East and North Africa, Inter-American Investment Corporation, Council of Europe Development Bank, Nordic Investment Bank, Caribbean Development Bank, European Investment Bank and European Investment Fund. (The term international financial institution includes entities referred to as multilateral development banks. The International Bank for Reconstruction and Development, the International Finance Corporation and the Multilateral Investment Guarantee Agency are parts of the World Bank Group.) 1181 The SEC intends to address issues related to the application of the major security-based swap participant definition to non-U.S. entities as part of a separate release that the SEC is issuing in connection with the application of Title VII to nonU.S. persons. The SEC is also able to address concerns related to the individual substantive rules applicable to major security-based swap participants on a case-by-case basis. 1182 See Foreign Sovereign Immunities Act of 1976, 28 U.S.C. 1602 (‘‘under international law, states are not immune from the jurisdiction of foreign courts insofar as their commercial activities are concerned * * * Claims of foreign states to E:\FR\FM\23MYR2.SGM 23MYR2 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES2 the general rule, a per se exclusion for foreign entities from the CEA’s major swap participant or swap dealer definition, therefore, is inappropriate. A foreign entity’s swap activity may be commercial in nature and may qualify it as a swap dealer or major swap participant. Registration and regulation as a swap dealer or major swap participant under such circumstances may be warranted.1183 This is particularly true for foreign corporate entities and sovereign wealth funds, which act in the market in the same manner as private asset managers. On the other hand, the sovereign or international status of foreign governments, foreign central banks and international financial institutions that themselves participate in the swap markets in a commercial manner is relevant in determining whether such entities are subject to registration and regulation as a major swap participant or swap dealer. Canons of statutory construction ‘‘assume that legislators take account of the legitimate sovereign interests of other nations when they write American laws.’’ 1184 There is nothing in the text or history of the swap-related provisions of Title VII to establish that Congress intended to deviate from the traditions of the international system by including foreign governments, foreign central banks and international financial institutions within the definitions of the terms ‘‘swap dealer’’ or ‘‘major swap immunity should henceforth be decided by courts of the United States and of the States in conformity with the principles set forth in this chapter.’’). See also Mendaro v. World Bank, 717 F.2d 610 (DC Cir. 1983) (multilateral development banks generally do not have immunity in connection with their commercial dealings in the United States); Osseiran v. International Financial Corp., 552 F.3d 836 (DC Cir. 2009) (same); Vila v. Inter-American Investment Corp., 570 F.3d 274 (DC Cir. 2009) (same). 1183 Such a registration requirement would have to satisfy the requirements of CEA section 2(i), 7 U.S.C. 2(i), which provides that the provisions of Title VII relating to swaps ‘‘shall not apply to activities outside the United States unless those activities—(1) Have a direct and significant connection with activities in, or effect on, commerce of the United States; or (2) contravene such rules or regulations as the Commission may prescribe or promulgate as are necessary or appropriate to prevent the evasion of any provision of [the CEA] that was enacted by’’ Title VII of the Dodd-Frank Act. 1184 See F. Hoffman-LaRoche, Ltd. v. Empagran S.A., 542 U.S. 155, 164 (2004), citing Murray v. Schooner Charming Betsy, 2 Cranch 64, 118, 2 L.Ed. 208 (1804) (‘‘[A]n act of congress ought never to be construed to violate the law of nations if any other possible construction remains’’); Hartford Fire Insurance Co. v. California, 509 U.S. 764 (1993) (Scalia, J., dissenting). See also Restatement (Third) Foreign Relations Law § 403 (scope of a statutory grant of authority must be construed in the context of international law and comity including, as appropriate, the extent to which regulation is consistent with the traditions of the international system). VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 participant,’’ thereby requiring that they affirmatively register as swap dealers or major swap participants with the CFTC and be regulated as such.1185 The CFTC does not believe that foreign governments, foreign central banks and international financial institutions should be required to register as swap dealers or major swap participants. K. Financing Subsidiary Exclusion From Major Swap Participant Definition In connection with the definition of major swap participant, CEA section 1a(33)(D) excludes certain entities from the definition of a major swap participant whose primary business is providing financing and uses derivatives for the purpose of hedging underlying commercial risks related to interest rate and foreign currency exposures, 90 percent or more of which arise from financing that facilitates the purchase or lease of products, 90 percent or more of which are manufactured by the parent company or another subsidiary of the parent company (the ‘‘captive finance company exception’’).1186 This provision of the Dodd-Frank Act is not applicable to major security-based swap participants. 1. Proposal The Proposing Release restated the statutory captive finance company exception but did not further define or detail its scope or parameters. Accordingly, the CFTC did not propose a specific rule excluding certain financing subsidiaries from the definition of major swap participant in the Proposing Release. 2. Commenters’ Views Commenters generally believed that the captive finance company exception should be broadly construed to cover financing of products being sold by the parent company or its authorized dealers, financing of service and labor, financing of component parts and attachments, and other general financing of the distribution network.1187 One commenter said the exception should be read narrowly, because the physical positions (in inventory, etc.) related to swaps may not 1185 To the contrary, section 752(a) of the DoddFrank Act requires the CFTC to consult and coordinate with other regulators ‘‘on the establishment of consistent international standards with respect to the regulation (including fees) of swaps [and] swap entities * * *’’ 1186 7 U.S.C. 1a(33)(D). 1187 See letters from CDEU, U.S. Chamber of Commerce, Center for Capital Markets Competiveness (‘‘Chamber’’) dated December 30, 2011 (‘‘Chamber II’’) and NRU CFC I. PO 00000 Frm 00099 Fmt 4701 Sfmt 4700 30693 be able to be liquidated to mitigate the risks of the swaps.1188 3. Final Rules The CFTC believes that the exception set forth in CEA section 1a(33)(D) should be construed (consistent with the statute) to provide practical relief to those captive finance companies whose ‘‘primary business’’ is financing and who uses swaps for the purpose of hedging named underlying commercial risks related to interest rate and foreign currency exposures. As an initial matter, the Commission notes that a captive finance subsidiary or other similar entity is required to provide financing as its primary business, i.e., this is not a supplementary or complementary activity of the entity.1189 In connection with the exception, commenters generally focused on the second part of Section 1a(33)(D) of the CEA, requesting the CFTC to interpret the phrase ‘‘90% or more of which are manufactured by the parent company or another subsidiary of the parent company’’ to include component parts, attachments, systems and other products that may be manufactured by others but sold together with the company’s products as well as attachments and labor costs that are incidental to the primary purchase.1190 The CFTC believes that the captive finance exception must be interpreted in a manner consistent with the intention of Congress. As a result, a person that seeks to fall within the exemption must be in the ‘‘primary business’’ of providing financing of purchases from its parent company. Consistent with this initial requirement, the CFTC maintains that the captive finance exception can be applied when this financing activity finances the purchase of the products sold by the parent company in a broad sense, including service, labor, component parts and attachments that are related to the products. 1188 See meeting with Duffie on February 2, 2011. In addition, another commenter also suggested that the exception not be interpreted broadly due to concerns regarding potential abuse. See letter from CMOC. 1189 Commenters generally did not focus on this initial requirement instead commenting on other issues relating to application of the exception. 1190 See letters from CDEU and Chamber II. Another commenter suggested that it should be viewed as a captive finance subsidiary of the entities that own it in a cooperative structure. See letter from NRU CFC I. This commenter also discussed whether the captive finance company exception should be available when it provides financing to its member-owners to support their general business activities, rather than to finance purchases from its member-owners. The CFTC does not believe it would be appropriate to apply the captive finance company exception in this situation. E:\FR\FM\23MYR2.SGM 23MYR2 30694 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations L. Implementation Standard, ReEvaluation Period and Minimum Period of Status a person would have to be registered as a major participant would be two quarters, rather than four quarters.1196 1. Proposed Approach The proposed rules provided that a person would be deemed to be a major participant upon the earlier of: (i) The date on which it submits a complete application for registration, or (ii) two months after the end of the quarter in which a person meets the definition of major participant.1191 The proposed rules also provided that a person that has met the criteria for designation as a major participant as a result of its swap or security-based swap activities in a fiscal quarter, but without exceeding any applicable threshold by more than 20 percent, would not immediately be subject to the timing requirements discussed above. Instead, the person would be subject to the timing requirements noted above as soon as its daily average swap or security-based swap positions over any fiscal quarter exceed any of the applicable daily average thresholds.1192 Finally, the proposed rules provided that a person would retain the status of a major participant if its swap positions or security-based swap positions do not fall below all of the thresholds for four consecutive quarters.1193 At that time, such entity may de-register as a major swap participant or major securitybased swap participant. 3. Final Rules mstockstill on DSK4VPTVN1PROD with RULES2 2. Commenters’ Views Some commenters took the view that the time for compliance should be more than two months.1194 One commenter suggested that entities be given the flexibility to have an additional evaluation period if abnormal market events or price movements cause the failure of the first reevaluation.1195 Some commenters further expressed the view that the minimum amount of time 1191 See proposed CFTC Regulation § 1.3(hhh)(3); proposed Exchange Act rule 3a67–7(a). 1192 See proposed CFTC Regulation § 1.3(hhh)(4); proposed Exchange Act rule 3a67–7(b). 1193 See proposed CFTC Regulation § 1.3(hhh)(5); proposed Exchange Act rule 3a67–7(c). 1194 See letters from BlackRock I (requesting that market participants have eight months after they have exceeded any of the applicable thresholds to complete the registration process and come into compliance with applicable rules) and MetLife (suggesting that one year would be an adequate amount of time to come into compliance with the applicable rules); see also letters from ISDA I (suggesting a grace period of three quarters following the effectiveness of the proposed rules to permit analysis of whether a person is a major participant) and Capital One (recommending establishment of an 18 month provisional registration period for major participants and for dealers, as well as a phase-in period for applicable regulatory requirements). 1195 See letter from MFA I. VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 a. Timing Consistent with the proposal, the final rules provide that a person would be deemed to be a major participant upon the earlier of the date on which it submits a complete application for registration, or two months after the end of the quarter in which it meets the criteria to be a major participant.1197 In adopting these rules, the Commissions are mindful of commenters’ concerns that market entities be given an adequate amount of time to come into compliance with the requirements applicable to major participants. At the same time, it is important to recognize that a person may submit a completed application for major participant registration prior to the time in which it must come into compliance with the requirements applicable to major participants.1198 We believe that two months provides a reasonable amount of time for a person to submit a completed application for registration as a major participant.1199 b. Re-Evaluation Period Consistent with the proposal, the final rules provide that if any entity meets the criteria for qualifying as a major participant, but does not exceed any applicable threshold by more than 20 percent in that particular quarter, the entity will not immediately be subject to the timing requirements noted above, 1196 See, e.g., letters from ACLI, BG LNG I, MetLife and MFA I (also suggesting that there be an alternative method of termination if an entity falls below an applicable threshold by more than 20 percent). 1197 See CFTC Regulation § 1.3(hhh)(3); Exchange Act rule 3a67–8(a). 1198 The proposed rules regarding the registration of major security-based swap participants would provide that a person who files a completed registration application will be conditionally registered as a major security-based swap participant for four months (unless a person files a certification with the SEC, which would extend the conditional registration for an additional 30 days). See proposed Exchange Act rules 15Fb2–1(d)(1) and 15Fb3–1(b)(2), 76 FR 65784, 65821, 65823 (Oct. 24, 2012). In other words, under this proposal, a person who meets the criteria for being a major securitybased swap participant may have up to six months, or longer, to come into compliance with the requirements applicable to major security-based swap participants. 1199 The SEC has estimated that it would take an entity approximately one week to be able to complete and file Form SBSE, the most complex application form for registration as a major securitybased swap participant. The other forms for application as a major security-based swap participant are simpler, and the SEC estimates that they would take less time to complete. See 76 FR at 65814 at nn.130, 131, 133. PO 00000 Frm 00100 Fmt 4701 Sfmt 4700 but will become subject to the timing requirements at the end of the next fiscal quarter if such entity exceeds any of the applicable daily average thresholds in that next fiscal quarter.1200 We believe that this standard will appropriately help to avoid applying major participant requirements to entities that meet the major participant criteria for only a short time due to unusual activity.1201 c. Minimum Period of Status Consistent with the proposal, the final rules provide that a person would retain major participant status until it does not exceed any of the applicable thresholds for four consecutive quarters following registration.1202 We believe that this time period appropriately addresses the concern that persons may move in and out of major participant status on a rapid basis. While we recognize that some commenters requested that this period be reduced to two quarters, we believe that a shorter period likely would lead to administrative confusion and burdens, as a shorter time period may be expected to lead entities to move in and out of major participant status more frequently. M. Calculation Safe Harbor 1. Proposed Approach and Commenters’ Views In the Proposing Release, we expressed the understanding that only a limited number of persons currently have swap or security-based swap positions of a size that potentially could cause them to fall within the major participant definitions.1203 Without disagreeing with that view, some commenters expressed concern about the costs and burdens associated with performing the applicable calculations on a daily basis, particularly citing the calculations’ complex nature.1204 Certain commenters further suggested 1200 See CFTC Regulation § 1.3(hhh)(4); Exchange Act rule 3a67–8(b). 1201 While we are mindful that one commenter suggested that this standard be extended from one quarter to four quarters, see letter from ISDA I, we do not believe that approach would be consistent with the goal of not causing persons to become major participants as a result of short-term unusual activity. 1202 See CFTC Regulation § 1.3 (hhh)(5); Exchange Act rule 3a67–8(c). 1203 For example, in connection with the major security-based swap participant definition, we preliminarily estimated that no more than ten entities that would not otherwise be security-based swap dealers would have uncollateralized mark-tomarket positions or combined uncollateralized exposure and potential future exposure that may rise close enough to the proposed thresholds to necessitate monitoring to determine whether they meet those thresholds. See Proposing Release, 75 FR at 80207–08. 1204 See letters from MFA I and Vanguard. E:\FR\FM\23MYR2.SGM 23MYR2 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations that participants in the swap and security-based swap markets may perceive an obligation to conduct the relevant calculations on a daily basis even if they are not reasonably likely to be major participants. Those commenters requested that the Commission adopt a safe harbor by which persons with swap or securitybased swap positions below a certain notional threshold would not have to perform the major participant calculations, or by which persons would not have to perform those calculations more than monthly when the results of those calculations are significantly below the levels required to be a major participant.1205 mstockstill on DSK4VPTVN1PROD with RULES2 2. Final Rule We continue to believe that under the rules we are adopting only a limited number of persons potentially may be major participants. Nonetheless, we recognize the significance of commenter concerns that some persons may perceive an obligation to conduct the major participant calculations as part of their compliance procedures even when there is not a significant likelihood that they would be major participants. We thus believe that a safe harbor can promote certainty and regulatory efficiency by helping market participants appropriately focus their compliance efforts and avoid undue compliance costs in circumstances when they would be highly unlikely to be major participants. Accordingly, the Commissions are adopting a rule to incorporate a safe harbor into the major participant analysis. A person may take advantage of this safe harbor in any of three situations. First, a person will not be deemed to be a major participant if: (i) the express terms of the person’s arrangements relating to swaps and security-based swaps with its counterparties at no time would permit the person to maintain a total uncollateralized exposure of more than $100 million to all such counterparties, including any exposure that may result from the application of thresholds or minimum transfer amounts established by credit support annexes or similar arrangements; 1206 and (ii) the person 1205 See letters from SIFMA AMG I (recommending safe harbor when the notional amount of a person’s positions is less than the applicable thresholds for current uncollateralized exposure plus potential future exposure, or when a person’s end-of-month analysis indicates exposures that are at least 50 percent below the definitions’ applicable current exposure plus potential future exposure thresholds), Association of Institutional Investors (‘‘AII’’) and Vanguard. 1206 See CFTC Regulation § 1.3(hhh)(6)(i)(A); Exchange Act rule 3a67–8(a)(1)(i). VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 does not maintain notional swap or security-based swap positions of more than $2 billion in any major category of swaps or security-based swaps, or more than $4 billion in aggregate.1207 Alternatively, a person will not be deemed to be a major participant if: (i) The express terms of the person’s arrangements relating to swaps and security-based swaps with its counterparties at no time would permit the person to maintain a total uncollateralized exposure of more than $200 million to all such counterparties, including any exposure that may result from thresholds or minimum transfer amounts; 1208 and (ii) the person performs the major participant calculations (e.g., the ‘‘substantial position’’ and ‘‘substantial counterparty exposure’’ calculations associated with the major participant tests) as of the end of every month, and the results of each of those monthly calculations indicate that the person’s swap or security-based swap positions lead to no more than one-half of the level of current exposure plus potential future exposure that would cause the person to be a major participant.1209 Finally, a person will not be deemed to be a major participant if the person’s current uncollateralized exposure is in connection with a major category of 1207 See CFTC Regulation § 1.3(hhh)(6)(i)(B); Exchange Act rule 3a67–8(a)(1)(ii). For purposes of this second condition, the measure of swap or security-based swap positions in a major category shall include all positions in that major category. This measure shall not exclude the hedging or ERISA positions that are excluded from the first major participant test. 1208 See CFTC Regulation § 1.3(hhh)(6)(ii)(A); Exchange Act rule 3a67–8(a)(2)(i). 1209 See CFTC Regulation § 1.3(hhh)(6)(ii)(B); Exchange Act rule 3a67–8(a)(2). In the case of security-based swaps, for example, the monthly test must indicate that the person has no more than $1 billion in aggregate uncollateralized current exposure plus potential future exposure in a major category (equal to one-half the thresholds of the first and third major participant tests). A person also must have no more than $2 billion in aggregate uncollateralized current exposure plus potential future exposure with regard to all of its securitybased swap positions (equal to one-half the thresholds of the second major participant test). For purposes of conducting this analysis with regard to positions in a major category, if the person is subject to the third major participant test (i.e., the person is a highly leveraged financial entity that is not subject to bank capital requirements), the analysis must account for all of the person’s swap or security-based swap positions in that major category (without excluding hedging positions). If the person is not subject to the third major participant test (i.e., the person is not ‘‘highly leveraged’’ or is not a ‘‘financial entity’’ potentially subject to the test) the analysis may exclude those hedging positions that also are excluded from the first major participant test. For purposes of conducting this analysis with regard to all of its swap or security-based swap positions, the analysis may not exclude hedging positions (consistent with the lack of a hedging exclusion in the second major participant test). PO 00000 Frm 00101 Fmt 4701 Sfmt 4700 30695 swaps or security-based swaps is less than $500 million (or less than $1.5 billion with regard to the rate swap category) and the person performs certain modified major participant calculations (e.g., the ‘‘substantial position’’ and ‘‘substantial counterparty exposure’’ calculations, simplified based on assumptions that are adverse to the person) 1210 as of the end of every month, and the results of each of those monthly calculations indicate that the person’s swap or security-based swap positions in each major category of swaps or security-based swaps are less than one-half of the substantial position threshold.1211 This test addresses the commenter suggestion that a safe harbor be set at one-half of the threshold triggering major participant designation.1212 In addition, we have provided a more simplified alternate version of this test whereby a person will not be deemed to be a major participant if its monthly calculations indicate that the person’s swap or security-based swap positions across all major categories of swaps or securitybased swaps are significantly less than the substantial counterparty exposure threshold.1213 This alternative provides a simple safe harbor for entities to apply without undertaking additional analysis to divide their swap or security-based 1210 See CFTC Regulation § 1.3(hhh)(6))iii)(A); Exchange Act rule 3a67–9(a)(3). The simplifications and assumptions applied to this portion of the safe harbor include the fact that a person must use the exposure reports of its dealer counterparties when calculating aggregate uncollateralized outward exposure to such entities, and that potential future exposure must be calculated without taking into account offsets for clearing, mark-to-market margining, or netting. 1211 See CFTC Regulation § 1.3(hhh)(6)(iii)(A); Exchange Act rule 3a67–9(a)(3)(i)(A). 1212 As identified above, three commenters requested that the Commissions provide a ‘‘safe harbor’’ in connection with the status of a major participant. See letters from AII, SIFMA AMG II and Vanguard. For example, one commenter stated that ‘‘market participants that are otherwise required to perform the calculations should be able to do so on a less frequent basis if the entity is below every applicable threshold by at least 50%.’’ See letter from SIFMA AMG I at 5. 1213 See CFTC Regulation § 1.3(hhh)(6)(iii)(B); Exchange Act rule 3a67–9(a)(3)(i)(B). The thresholds for this version of the safe harbor are consistent with the thresholds for the safe harbor set forth in CFTC Regulation § 1.3(hhh)(6)(iii)(A) and Exchange Act rule 3a67–9(a)(3)(i)(A), other than with respect to interest rate swaps. We recognize that the major participant thresholds for swaps and security-based swaps across all major categories (i.e., substantial counterparty exposure) are much larger than those for each individual major category (i.e., substantial position). However, given the purposes of the safe harbor, we do not believe that it is appropriate to use a higher level for the test related to all major categories as compared to the test for each individual category. E:\FR\FM\23MYR2.SGM 23MYR2 30696 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES2 swap positions into major categories.1214 In each of these circumstances, we believe that a safe harbor would be warranted because it would be sufficiently unlikely that the person’s swap or security-based swap positions would cause the entity to be a major participant.1215 The Commissions believe that for compliance purposes, persons should be able to rely on the proposed safe harbors noted above. This would benefit the swap and securitybased swap marketplace and related market participants by avoiding unnecessary costs for various entities that, because of compliance concerns, would engage in major participant calculations even though it would be very unlikely that the major participant thresholds would be met. The rule further provides that even if a person does not meet the conditions required to take advantage of the safe harbor, that fact by itself will not lead to a presumption that a person is required to perform the calculations required to determine if it is a major participant.1216 This is consistent with the safe harbor’s intent to promote certainty and efficiency in compliance efforts. While we are not prescribing when a person should perform the major participant calculations, participants in the swap and securitybased swap markets should be mindful that they are responsible for determining whether they meet the major participant definitions, and that they will face liability if they knowingly or unknowingly meet one of those 1214 When calculating its potential future exposure across all major swap or security-based swap categories for purposes of this portion of the safe harbor, the person must use the same specified conversion factor for all swaps or security-based swaps, with such factor reflecting the highest risk weight applied to a major category of swaps or security-based swaps, as applicable. See CFTC Regulation § 1.3(hhh)(6)(iii)(B)(2); Exchange Act rule 3a67–9(a)(3)(i)(B)(2). Also, for all three tests within the safe harbor, the person should use the effective notional amount of a position rather than the stated notional amount of that position if the stated notional amount is leveraged or enhanced by the structure of the position. See CFTC Regulation § 1.3(hhh)(6)(iv); Exchange Act rule 3a67–9(b). 1215 Although commenters suggested a safe harbor based on a notional standard or on monthly testing, the rule we are adopting also accounts for the maximum exposure that is possible under a person’s counterparty arrangements (including the aggregate amount of thresholds and minimum transfer amounts provided for by the applicable credit support annexes). This is intended to better focus the application of the safe harbor toward those entities that are highly unlikely to be, or become, major participants. 1216 See CFTC Regulation § 1.3(hhh)(6)(v); Exchange Act rule 3a67–8(c). VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 definitions without registering as a major participant. N. Limited Designation as a Major Swap Participant or Major Security-Based Swap Participant 1. Proposed Approach The ‘‘major swap participant’’ and ‘‘major security-based swap participant’’ definitions provide that the Commissions may designate a person as a major participant for a single category of swap or security-based swap.1217 Unlike the limited designation provisions of the dealer definitions, the major participant definitions do not refer to limited designations in connection with particular swap and security-based swap activities. Also, unlike the dealer definitions (which refer to limited designations in connection with a particular ‘‘type,’’ ‘‘class’’ or ‘‘category’’ of swap or security-based swap), the major participant definitions specifically state that a person may be designated as a major participant for one or more ‘‘categories’’ of swap or security-based swap, without being a major participant for all ‘‘classes’’ of swap or securitybased swap. The proposal provided that a person who is a major participant in general would be considered to be a major participant with respect to all categories of swaps or security-based swaps, unless the person’s designation is limited.1218 We further stated that we anticipated that a major participant could seek a limited designation at the same time as its initial registration or at a later time, and we observed the difficulty of setting out the conditions that would allow a person to receive a major participant limited designation.1219 2. Commenters’ Views As discussed above, commenters generally addressed concerns regarding limited purpose major participant designations in conjunction with comments regarding limited purpose dealer designations.1220 A few comments addressed these issues specifically in the context of the major participant definitions. One commenter recommended that persons that exceed the first major participant threshold in a major category should presumptively be 1217 See CEA section 1a(33)(C); Exchange Act section 3(a)(67)(C). 1218 See proposed CFTC Regulation § 1.3(hhh)(2); proposed Exchange Act rule 3a71–1(c). 1219 See Proposing Release, 75 FR at 80200– 80201. 1220 See part II.E.2, supra. PO 00000 Frm 00102 Fmt 4701 Sfmt 4700 considered a limited major participant only for those categories of swaps or security-based swaps for which they crossed the threshold.1221 Another suggested a similar approach when a major participant’s swaps are concentrated in one major category.1222 Two commenters suggested that limited major participant designations should not be confined to the proposed major swap categories.1223 3. Final Rules and General Principles Applicable to Limited Major Participant Designations Consistent with the proposal, the final rules retain the presumption that a person that meets one of the major participant definitions will be deemed to be a major participant in connection with all categories of swaps or securitybased swaps.1224 As discussed in the Proposing Release, a person may apply for a limited designation when it submits a registration application, or later.1225 The final rules also contain one change from the proposal, in that the provisions of the final rules related to limited major participant designation do not refer to the major participant’s activities in connection with swaps or security-based swaps, in contrast to the proposal, because the relevant statutory provisions do not refer to limited designations related to activities. Many of the principles discussed above in the context of limited designation of dealers also are relevant to the limited designation of major participants. Significantly, as with limited dealer designations, it is appropriate for major participants to be subject to a default presumption that they should be regulated as major 1221 See letter from ICI I (recommending that entities that exceed the thresholds of the first major participant test be registered as major participants only for the relevant major category, while those entities qualifying as major participants under the other tests would be designated as major participants for all categories, but would still be able to apply for limited designations). 1222 See letter from BG LNG I (recommending that if 50 percent of a major participant’s swaps fall within one category of swaps, and its swaps in other categories would not separately exceed any of the proposed thresholds, that should be presumed to be a major participant for only that one category of swap). 1223 See letters from BG LNG I (specifically addressing energy firms); and NCGA/NGSA I (asserting that while the major participant definition is to be based on the major categories, the limited designations should be based on a finer set of categories). 1224 See CFTC Regulation § 1.3(hhh)(2); Exchange Act rule 3a71–1(c). 1225 See Proposing Release, 75 FR at 80200. The SEC expects to address the process for submitting an application for limited designation as a major security-based swap participant, along with principles to be used by the SEC in analyzing such applications, as part of separate rulemakings. E:\FR\FM\23MYR2.SGM 23MYR2 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES2 participants for all of their swaps or security-based swaps.1226 Although a commenter suggested that different principles should apply in the context of the first major participant test 1227—which is based on an entity’s swap or security-based swap position in a single major category—we do not concur. The substantive requirements applicable to major participants do not contemplate treating entities that exceed the first and third thresholds of the major participant definition differently than those exceeding the second threshold. Instead, those requirements indicate that each entity that falls within the major participant definition must comply with registration and other substantive requirements triggered by such designation for all of its swap or security-based swap positions and activities. This conclusion also is supported by the fact that the limited designation authority provided to the Commissions is permissive rather than mandatory, and by the challenges of demonstrating compliance with the substantive requirements applicable to major participants in the context of a limited designation. Indeed, as with limited dealer designation, one of the key requirements to overcoming the default presumption of full designation is an applicant’s ability to comply with major participant regulation in the context of a limited designation. As with limited dealer designation, the Commissions will not designate a person as a limited purpose major participant unless the person can demonstrate compliance with the statutory and regulatory requirements applicable to major participants. Accordingly, an applicant to limited purpose designations must not only demonstrate the ability to comply with the transaction-level major participant requirements (e.g., certain business conduct standards and requirements related to trading records, documentation and confirmations) in the context of a limited designation, but also to entity-level major participant requirements (e.g., requirements related to registration, capital, risk management, supervision, and chief compliance officer). V. Commission Staff Reports To review and evaluate the operation of the ‘‘swap dealer,’’ ‘‘security-based swap dealer,’’ ‘‘major swap participant’’ and ‘‘major security-based swap participant’’ definitions, the CFTC and SEC are directing their respective staffs 1226 See part II.E.3.a, supra, discussing the statutory and policy basis for this presumption. 1227 See letter from ICI I. VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 to undertake future studies regarding the rules being adopted in connection with these definitions and the related interpretations. These studies will include the analysis of market data and the input of public comment. The CFTC staff is further directed to report the results of this study to the CFTC on a date that is no later than 30 months following the date that a swap data repository first receives swap data under the CFTC’s regulations.1228 The SEC staff is further directed to report the results of this study to the SEC no later than three years following the later of: (i) the last compliance date for the registration and regulatory requirements for security-based swap dealers and major security-based swap participants under Section 15F of the Exchange Act; and (ii) the first date on which compliance with the trade-by-trade reporting rules for credit-related and equity-related security-based swaps to a registered security-based swap data repository is required.1229 These staff reports will be made available for public comment. A. Objectives of the CFTC Staff Report In general, the CFTC’s staff report— together with the associated public comment—is intended to help the CFTC thoroughly evaluate the practical implications and effects of the ‘‘swap dealer’’ and ‘‘major swap participant’’ definitions following the regulation of dealers and major participants under Title VII. In addition, the staff report is intended to assist the CFTC in evaluating whether new or revised tests or approaches would be appropriate for identifying swap dealers and major swap participants or for providing greater clarity as to whether particular entities do or do not fall within these definitions. The staff report is also 1228 The CFTC has designated a period of 30 months to ensure that the report reflects two years of security-based swap transaction data, and six months for the staff to analyze the data and prepare the report. The Commissions expect that swap data repositories and security-based swap data repositories will begin to receive data at different times. Currently, swap data repositories are expected to begin to receive swap data approximately 60 days after publication of the rules further defining the term ‘‘swap.’’ See CFTC, Final Rule: Swap Data Recordkeeping and Reporting Requirements, 77 FR 2136 (Jan. 13, 2012); CFTC, Final Rule: Swap Data Repositories: Registration Standards, Duties and Core Principles, 76 FR 54538 (Sept. 1, 2011). The SEC has not yet adopted final rules for the receipt of security-based swap data by security-based swap data repositories. Because of this difference, the timing of the changes to the de minimis thresholds for swaps and security-based swaps will be different. 1229 The SEC has designated a period of three years to ensure that the report reflects two years of security-based swap transaction data, and one year for the staff to analyze the data and prepare the report. PO 00000 Frm 00103 Fmt 4701 Sfmt 4700 30697 intended to assist the CFTC more specifically in evaluating the potential implications of terminating the phase-in thresholds associated with the de minimis exception to the definition of a ‘‘swap dealer.’’ To this end, the staff report generally should review each significant aspect of the rules being adopted in connection with the definitions and related interpretations. With respect to the ‘‘swap dealer’’ definition, such aspects include: (i) the factors associated with the definition (including the application of the dealer-trader distinction for identifying swap dealing activity); (ii) the extent of the exclusion of swaps entered into in connection with the origination of loans; (iii) the exclusion of certain swaps from the dealer analysis (i.e., swaps between affiliated parties, swaps between a cooperative and its members and swaps entered into for the purpose of hedging as defined in the rule); and (iv) the tests and thresholds used to implement the de minimis exception. With respect to the ‘‘major swap participant’’ definition, such aspects include: (i) The tests and thresholds associated with the ‘‘substantial position’’ definition; (ii) the definition of ‘‘hedging or mitigating commercial risk’’; (iii) the tests and thresholds associated with the ‘‘substantial counterparty exposure’’ definition; and (iv) the definition of ‘‘highly leveraged’’. To facilitate this review, the CFTC staff report should address—as may be practicable in light of the data made available under the swap regulatory reporting regime or otherwise—a range of descriptive analytics that may be helpful in characterizing the nature of the swap market, its participants, and their activities. Such descriptive analytics could help inform the CFTC as to how the definitions in the final rules are being applied in practice and whether any adjustments to such definitions should be considered. For example, these analytics could indicate whether the population of registered swap dealers and major swap participants is substantially larger or smaller than expected, and, to some extent, what elements of the definitions are responsible for any significant differences. These analytics could also illuminate dynamics in the market that may require new or different treatment in the definitions. These analytics may also assist the CFTC in considering whether it would be practical and appropriate to apply new or different objective and readily verifiable tests or standards for determining whether particular entities are or are not swap dealers or major swap participants, E:\FR\FM\23MYR2.SGM 23MYR2 30698 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES2 including through the possible use of safe harbors, presumptions, thresholds, or defaults based on these tests or standards. Depending on the availability and reliability of data and the developments in the market and regulatory framework, among other factors, the CFTC staff report could consider: how swaps differ among registered swap dealers, registered major swap participants and unregistered entities; differences among swaps in the major swap categories; differences among swap dealing activity of entities at various levels, including around the de minimis threshold; and estimates of quantitative information regarding use of swaps, including notional values, effective notional values, and collateralized and uncollateralized exposure. The CFTC staff report should also address, as may be practicable, the nature and extent of the impact that the final rules and interpretations implementing the definitions have had on certain aspects of the swap market. Depending on the available information and other factors, the CFTC staff report could address the impact of these final rules and interpretations on competition in the swap market, market participants’ ability to enter into swaps with various registered and unregistered entities, including IDIs, and the terms of swaps. B. Objectives of the SEC Staff Report In general, the report of the SEC staff—together with the associated public comment—is intended to help the SEC thoroughly evaluate the practical implications and effects of the dealer and major participant definitions following the regulation of dealers and major participants pursuant to Title VII. In addition, the staff report is intended to assist the SEC in evaluating whether new or revised tests or approaches would be appropriate for identifying dealers and major participants or for providing greater clarity as to whether particular entities do or do not fall within these definitions. The staff report also is intended to assist the SEC more specifically in evaluating whether it is necessary or appropriate to set higher or lower thresholds for the de minimis exception to the definition of ‘‘securitybased swap dealer.’’ To this end, the staff report generally should review each significant aspect of the rules being adopted in connection with the definitions and related interpretations. With respect to the security-based swap dealer definition, such aspects include: (i) The factors associated with the definition (including the application of the dealertrader distinction for identifying dealing VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 activity); (ii) the exclusion of interaffiliate transactions from the dealer analysis (including the provisions limiting that exclusion to transactions among majority-owned affiliates); and (iii) the tests and thresholds used to implement the de minimis exception. With respect to the major security-based swap participant definition, such aspects include: (i) The tests and thresholds associated with the ‘‘substantial position’’ and ‘‘substantial counterparty exposure’’ definitions; (ii) the definition of ‘‘hedging or mitigating commercial risk’’ (including whether the definition inappropriately permits the exclusion of certain positions from the first test of the major participant definitions, and whether the continued availability of the exclusion should be conditioned on assessments of hedging effectiveness and related documentation); (iii) the definition of ‘‘highly leveraged’’; and (iv) the exclusion of inter-affiliate transactions from the major participant analysis (including the provision limiting that exclusion to transactions among majority-owned affiliates). C. Descriptive Analytics in the SEC Report To facilitate this review, the report of the SEC staff should address—as may be practicable in light of the data made available under the applicable regulatory reporting regime or otherwise 1230—a range of descriptive analytics that may be helpful in characterizing the nature of the securitybased swap market, as well as entities within that market and those entities’ activities. Such descriptive analytics could help inform the SEC as to how the definitions in the final rules are being applied in practice and whether any adjustments to such definitions should be considered. For example, these analytics could indicate whether the populations of dealers and major participants are substantially larger or smaller than expected, and, to some extent, what elements of the definitions are responsible for any significant differences. These analytics could also illuminate dynamics in the securitybased swap market that may require new or different treatment in the definitions. For example, the analytics could indicate that the activity in 1230 The Dodd-Frank Act mandates that market participants publicly report certain security-based swap transaction and pricing data. See Exchange Act section 13(m). The SEC has proposed rules to implement these requirements, which will give the Commissions and the general public additional insight into the security-based swap markets. See Regulation SBSR—Reporting and Dissemination of Security-Based Swap Information, 75 FR 75208 (Dec. 2, 2010). PO 00000 Frm 00104 Fmt 4701 Sfmt 4700 certain segments of the security-based swap market—e.g., equity swaps—has significantly increased or decreased since the adoption of the final rules. These analytics may also assist the SEC in considering whether it would be practical and appropriate to apply new or different objective and readily verifiable tests or standards for determining whether particular entities are or are not dealers or major participants, including through the possible use of safe harbors, presumptions, thresholds or defaults based on these tests or standards. The precise nature of the descriptive analytics included in the SEC staff report of course will depend on a number of considerations, including the availability and reliability of data and the developments in the market and regulatory framework. However, some salient candidates for descriptive analysis that could be considered at the time of the staff report include: • Characteristics of, and differences among, the security-based swap transactions and positions of three segments of participants in those respective markets—registered dealers, any registered major participants, and unregistered entities.1231 • Characteristics of, and differences among, security-based swap transactions and positions connected with the broad product segments identified in the final rules (e.g., credit default swaps and other security-based swaps).1232 • Characteristics of, and differences among, the apparent dealing activity of entities at various levels (including the $3 billion and $150 million de minimis levels established in the final rule in connection with the security-based swap dealer definition) based on their transactions and positions; 1233 1231 Such characteristics could include: (i) The types of market participants in each segment; (ii) their activity and positions (in terms of notional value, number of transactions, average aggregate uncollateralized outward exposures, and average aggregate potential outward exposure); (iii) the type and number of their counterparties (including the registered/unregistered status of such counterparties); and (iv) a network analysis of the concentration of activity by counterparty. 1232 Such characteristics could include: (i) The types of market participants in each segment, including their registration status; (ii) the amount of their activity (in terms of notional value and number of transactions); and (iii) the type and number of their counterparties. 1233 Such characteristics could include a range of quantitative criteria indicative of apparent dealing activity, similar in some respects to the approach taken in the CDS Data Analysis. Differences that could be reviewed include variations in the number and size of trades and counterparties. E:\FR\FM\23MYR2.SGM 23MYR2 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations • Characteristics of the security-based swap trading activity of ‘‘special entities’’; 1234 • Characteristics of entities entering and exiting the security-based swap markets, using a variety of baselines; 1235 • Estimates of security-based swap entities’ current uncollateralized exposure and potential future exposure at various levels of security-based swap positions; 1236 and • Estimates of security-based swap entities’ ratios of total liabilities to equity.1237 D. Additional Analyses in the SEC Staff Report mstockstill on DSK4VPTVN1PROD with RULES2 To further facilitate this review, the SEC staff report should also address, as may be practicable, the nature and extent of the impact that the final rules and interpretations implementing the definitions have had on certain aspects of the security-based swap market. However, many economic, regulatory, and other factors—both related and unrelated to the implementation of Title VII—could impact the market going forward. The extent to which the staff report will be able to provide retrospective analyses regarding the effect of the definitions on the securitybased swap markets (and the robustness of any such analysis) in significant part will be based on the nature and role of future exogenous factors that have also affected the market. Depending on these future factors and the potential challenges associated with addressing them in the staff reports, some salient candidates for retrospective impact analysis that could be considered at the time of the report include: • Effects on competition. The report may be able to explore connections between the definitions and the entry 1234 Such characteristics could include: (i) The size and nature of their counterparties; (ii) the registration status of their counterparties; and (iii) the size and number of their transactions. 1235 Such characteristics could include: (i) The extent to which those entities bear indicia of dealing activity, including those identified in the CDS Data Analysis; and (ii) the extent to which those entities have registered as security-based swap dealers. Potential baseline could include, for example: (i) The adoption of these final rules; (ii) December 31, 2011, the end of the time period considered by the CDS Data Analysis; and (iii) the last effective date of the registration and regulatory requirements for security-based swap dealers and major security-based swap participants under Section 15F of the Exchange Act. 1236 Such estimates could be useful in ascertaining the application of the various ‘‘substantial position’’ thresholds used in connection with the ‘‘major security-based swap participant’’ definition. 1237 Such estimates could be useful in connection with evaluating the operation of the third prong of the major participant definition. VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 and exit of various entities in the security-based swap markets. For example, to what extent is an entity’s entry or exit correlated with its registration status or its approaching or crossing any of the thresholds established by the definitions (e.g., the de minimis thresholds for dealers or the ‘‘substantial position’’ thresholds for major participants)? Has the current concentration of the dealer market dissipated, persisted, or strengthened over time? 1238 • Effects on investor protection. The report may be able to explore connections between the definitions and the nature and scope of transactions with certain classes of counterparties. For example, to what extent do unregistered entities in the securitybased swap markets transact with counterparties such as ‘‘special entities,’’ natural persons, small businesses, or commercial entities? Have the nature and scope of trades by special entities or other classes of counterparties changed since 2011? Have unregistered entities—such as dealers operating under the de minimis threshold—emerged to engage in transactions with special entities or other particular classes of counterparties? • Effects on access. The report may be able to explore connections between the definitions and the ability of certain classes of counterparties to access products in the security-based swap market. For example, to what extent is an entity’s registration status or its approaching or crossing any of the thresholds established by the definitions correlated with the entity ceasing transactions with certain classes or sizes of counterparties? • Effects of the dealer-trader distinction. The report may be able to explore connections between market dynamics and quantifiable metrics indicative of dealing activity. For example, are there identifiable, objective differences between the registered security-based swap dealers and unregistered market participant populations in terms of number of counterparties, buy/sell ratios, posting of initial margin, concentrations by counterparty or otherwise? If so, how does the amount of the activity (in terms of notional value and number of transactions) of those entities change when they move above or below the thresholds implied by those differences? How do the characteristics of their counterparties (in terms of number and nature) change? 1238 See notes 478 through 485 and accompanying text, supra. PO 00000 Frm 00105 Fmt 4701 Sfmt 4700 30699 • Effects of de minimis thresholds. The report may be able to explore connections between market dynamics and the de minimis thresholds established by the definitions. For example, how does the amount of the activity (in terms of notional value and number of transactions) of securitybased swap entities change when they move above or below the de minimis thresholds? How do the characteristics of their counterparties (in terms of number and nature) change? • Effects of major participant thresholds. The report may be able to explore connections between market dynamics and the major participant thresholds established by the definitions. For example, how have total notional security-based swap positions changed over time for large market participants that are not registered and that do not bear any indicia of dealing activity? For those large participants, have overall notional levels moved toward, or away from, the levels required to trigger the major participant thresholds? • Other effects of the definitions. To what extent do entities registered security-based swap dealers have overall trading characteristics suggesting that they may not be dealers? To what extent have entities not registered as dealers have trading characteristics suggesting that they may be acting as dealers? In either case, do any discrepancies between firms’ registration status and their trading characteristics suggest any gaps or areas of uncertainty regarding the scope of the dealer definitions that may require potential modifications? VI. Effective Date and Implementation Consistent with sections 754 and 774 of the Dodd-Frank Act, these final rules will be effective on 60 days following publication in the Federal Register. The Commissions, however, are providing for a phase-in period for persons engaged in dealing activity below certain amounts. If any provision of these joint rules, or the application thereof to any person or circumstance, is held to be invalid, such invalidity shall not affect other provisions or application of such provisions to other persons or circumstances that can be given effect without the invalid provision or application. A. CEA Rules As explained below and as noted elsewhere in this Adopting Release, the compliance date for various regulatory requirements is contingent upon the adoption and effectiveness of other, E:\FR\FM\23MYR2.SGM 23MYR2 30700 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations related, regulatory provisions and definitions. Because the CFTC believes that the suite of rules implementing the Dodd-Frank Act are complex and interconnected, it has determined that implementation in certain cases can best be accomplished through separate rulemakings. The Commissions received comments related to implementation and phase-in that largely resulted from the CFTC’s re-opening of the comment period for several rulemakings, and a request for comment on the order in which it should consider final rulemakings made under the DoddFrank Act.1239 The CFTC notes that swap dealers and major swap participants will require an implementation or compliance period based on separate registration and regulatory requirements that are the subject of separate rulemakings by the Commission.1240 As the CFTC stated recently in another rulemaking related to CPOs: [while t]he [CFTC] recognizes that entities will need time to come into compliance with the [CFTC]’s regulations * * * [b]ased on the comments received indicating that a certain portion of entities currently claiming relief [from CPO registration] under § 4.13(a)(4) already have robust controls in place independent of [CFTC] oversight, the [CFTC] believes that entities currently claiming relief under § 4.13(a)(4) should be capable of becoming registered and complying with the [CFTC]’s regulations within 12 months following the issuance of the final rule. For entities that are formed after the effective date of the rescission, the Commission expects the CPOs of such entities to comply with the Commission’s regulations upon formation and commencement of operations.1241 mstockstill on DSK4VPTVN1PROD with RULES2 The Commissions are taking the same approach with respect to implementing CFTC Regulations §§ 1.3(m)(5) and 1.3(m)(6). The loss of ECP status for Forex Pools currently operating other than pursuant to the retail forex regime of a federal regulator described in CEA section 2(c)(2)(E)(i) 1242 may involve significant structural and operational changes. The loss of a commodity pool’s ability to rely on CEA section 1a(18)(A)(v) if it does not fall within CEA section 1a(18)(A)(iv) may require significant structural and operational changes. Because additional time may enable a Forex Pool affected by CFTC Regulation § 1.3(m)(5) to restructure to 1239 See CFTC, Reopening and Extension of Comment Periods for Rulemakings Implementing the Dodd-Frank Wall Street Reform and Consumer Protection Act, 76 FR 25274 (May 4, 2011). 1240 See CFTC, Final Rule: Registration of Swap Dealers and Major Swap Participants, 775 FR 713792613 (Jan. 19, 2012). 1241 CPO/CTA Compliance Release at 11265. 1242 7 U.S.C. 2(c)(2)(E)(i). VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 avoid being subject to the retail forex regime (e.g., by redeeming U.S. non-ECP participants) and may allow a commodity pool affected by CFTC Regulation § 1.3(m)(6) time to satisfy the terms of CEA section 1a(18)(A)(iv) (e.g., by the pool’s CPO registering as such or claiming an exemption therefrom or by the pool raising its level of total assets above $5 million), the Commissions are delaying the effective date of CFTC Regulations §§ 1.3(m)(5) and 1.3(m)(6) until December 31, 2012, which is the compliance date for commodity pools no longer permitted to claim exemption from CPO registration pursuant to recently withdrawn CFTC Regulation 4.13(a)(4).1243 CFTC Regulation § 1.3(m)(8) conditions ECP status in part on a requirement that a commodity pool be ‘‘formed and operated’’ by a registered CPO or by a CPO who is exempt from registration as such pursuant to CFTC Regulation § 4.13(a)(3). Due to the revocation of CFTC Regulation § 4.13(a)(4), the Commissions anticipate that many CPOs will be registering as such in the future. However, the compliance date for registration for CPOs required to register as such due to the withdrawal of CFTC Regulation § 4.13(a)(4) is December 31, 2012. Furthermore, such CPOs may have formed the commodity pools that they currently operate when such CPOs were not registered as such. Consequently, compliance with the formation element of CFTC Regulation § 1.3(m)(8)(iii) is not required with respect to a commodity pool formed prior to December 31, 2012. To be clear, however, while pools in existence before December 31, 2012 need not have been formed by a registered CPO, or by a CPO who is exempt from registration as such pursuant to CFTC Regulation § 4.13(a)(3), in order to satisfy the formation aspect of CFTC Regulation § 1.3(m)(8)(iii), such commodity pools nevertheless must be operated by a registered CPO, or by a CPO who is exempt from registration as such pursuant to CFTC Regulation § 4.13(a)(3), on December 31, 2012 to satisfy the ‘‘operated by a registered CPO’’ element of CFTC Regulation § 1.3(m)(8)(iii). B. Exchange Act Rules Because the SEC has not yet promulgated final rules implementing the substantive requirements imposed on dealers and major participants by Title VII of the Dodd-Frank Act, persons determined to be dealers or major participants under the regulations 1243 See PO 00000 CPO/CTA Compliance Release. Frm 00106 Fmt 4701 Sfmt 4700 adopted in this Adopting Release need not register as such until the dates provided in the SEC’s final rules regarding security-based swap dealer and major security-based swap participant registration requirements, and will not be subject to the requirements applicable to those dealers and major participants until the dates provided in the applicable final rules.1244 Moreover, as discussed above in the context of the de minimis exception to the security-based swap dealer definition,1245 the SEC is making an extended compliance period available to persons engaged in dealing activity involving credit default swaps between $3 billion and $8 billion in trailing annual notional amount, and to persons engaged in dealing activity involving other types of security-based swaps between $150 million and $400 million in trailing annual notional amount. Persons taking advantage of that extended compliance period will be deemed not to be security-based swap dealers during that period, and will not be subject to registration requirements and other requirements associated with status as a security-based swap dealer during that period. The SEC previously provided limited exemptive relief in connection with Exchange Act section 6(l),1246 added by the Dodd-Frank Act, which prohibits any person from effecting a securitybased swap transaction with a person that is not an ECP, unless effected on a national securities exchange. That relief expires as of the effective date of final rules further defining ECP.1247 Accordingly, following the effective date of these final rules, dealers and major participants—and all other persons—will be subject to the prohibition of section 6(l) under the definition of ECP as amended by Title VII and as further defined by the rules.1248 1244 See Securities Exchange Act Release No. 64678 (June 15, 2011), 76 FR 36287 (June 22, 2011) (‘‘Effective Date Release’’) (granting exemptive relief and providing guidance in connection with Exchange Act provisions concerning security-based swaps that were added or amended by Title VII). 1245 See part II.D.5, supra. 1246 15 U.S.C. 78f(l). 1247 See Effective Date Release, 76 FR at 36307. 1248 Because the exemptive relief that the SEC granted in connection with section 6(l) will expire as of the effectiveness of the ECP definition, the relief that the SEC provided from the rescission provisions of Exchange Act section 29(b) in connection with section 6(l) also will expire at that time. See id. E:\FR\FM\23MYR2.SGM 23MYR2 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations VII. Administrative Law Matters—CEA Revisions (Definitions of ‘‘Swap Dealer’’ and ‘‘Major Swap Participant,’’ and Amendments to Definition of ‘‘Eligible Contract Participant’’) mstockstill on DSK4VPTVN1PROD with RULES2 A. Regulatory Flexibility Act The Regulatory Flexibility Act (‘‘RFA’’) requires Federal agencies to consider the impact of its rules on ‘‘small entities.’’ 1249 A regulatory flexibility analysis or certification typically is required for ‘‘any rule for which the agency publishes a general notice of proposed rulemaking pursuant to’’ the notice-and-comment provisions of the Administrative Procedure Act, 5 U.S.C. 553(b).1250 In its proposal, the CFTC stated that ‘‘[t]he rules proposed by the CFTC provide definitions that will largely be used in future rulemakings and which, by themselves, impose no significant new regulatory requirements. Accordingly, the Chairman, on behalf of the CFTC, hereby certifies pursuant to 5 U.S.C. 605(b) that the proposed rules will not have a significant economic impact on a substantial number of small entities.’’1251 In response to the Proposing Release, one commenter stated that the CFTC’s ‘‘rule-makings [are] an accumulation of interrelated regulatory burdens and costs on non-financial small entities like the NFPEEU members, who seek to transact in energy commodity swaps only to hedge the commercial risks of their not-for-profit public service activities.’’ 1252 In general, the commenter said that since the Small Business Administration (‘‘SBA’’) has determined that many rural electric cooperatives are ‘‘small entities’’ for purposes of the RFA, if the definition of swap dealer were to cover a substantial number of rural electric cooperatives the rule further defining swap dealer may have a significant economic impact on a substantial number of small entities.1253 Thus, the commenter concluded that the CFTC should conduct a regulatory flexibility analysis for each of its rulemakings under the Dodd-Frank Act, including this rulemaking. The commenter also said that the requirement in section 2(e) of the CEA, as amended by the Dodd-Frank Act, that a person who is not an ECP must execute swaps on a designated contract market would have the potential to have 1249 5 U.S.C. 601 et seq. U.S.C. sections 601(2), 603, 604 and 605. 1251 75 FR 80203. 1252 See letter from NFPEEU. 1253 See letter from NFPEEU and meeting with NFPEEU on January 19, 2011. 1250 5 VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 a significant economic impact on a substantial number of small entities if a substantial number of rural electric cooperatives were not covered by the definition of ECP.1254 Another commenter said that in considering the economic impact on small entities of the swap dealer definition rules, the CFTC should consider whether the availability and cost of swaps to small entities could be affected by potential uncertainty among persons who engage in the activities covered by the definition about whether they are required to register as swap dealers.1255 The commenters did not provide specific information on how the further defining swap dealer would have a significant economic effect on a substantial number of small entities. Nonetheless, the CFTC has reevaluated this rulemaking in light of the statements made to it by these commenters. After further consideration of those statements, the CFTC has again determined that this final rulemaking will not have a significant economic effect on a substantial number of small businesses. With regard to the definition of swap dealer, the CFTC expects that if any small entity were to engage in the activities covered by the definition, most such entities would be eligible for the de minimis exception from the definition.1256 Additionally, the Commission does not expect that the small entities identified by NFPEEU will be subject to registration with the Commission as a major swap participant, as most entities with total electric output not exceeding 4 million megawatt hours are not expected to maintain outstanding swap positions that would exceed the applicable thresholds. In general, the major swap participant definition applies only to persons with very large swap positions, and therefore the definition of major swap participant is incompatible with small entity status. With regard to the definition of ECP, the CFTC notes that the costs of executing swaps on a designated contract market raised by the commenter arise from a requirement of the CEA, and not from any rule promulgated by the CFTC. Last, regarding the comment that there may be an economic impact on small entities 1254 See letter from NFPEEU. letter from Dominion Resources. 1256 The number of small entities that could conceivably be covered by the definition of swap dealer is likely to be further reduced if transactions between entities described in section 201(f) of the Federal Power Act (which generally includes rural electric cooperatives) are exempted from the requirements of the CEA, as contemplated by section 4(c)(6) of the CEA. 1255 See PO 00000 Frm 00107 Fmt 4701 Sfmt 4700 30701 in terms of the availability and cost of swaps, the definition of swap dealer is being adopted to limit uncertainty with respect to which entities will be required to register as a swap dealer. Thus, the definition of swap dealer is intended to avoid creating the substantial economic effect which concerns the commenter. Accordingly, the Chairman, on behalf of the CFTC, certifies, pursuant to 5 U.S.C. 605(b), that the actions to be taken herein will not have a significant economic impact on a substantial number of small entities. B. Paperwork Reduction Act The Paperwork Reduction Act (‘‘PRA’’) 1257 imposes certain requirements on Federal agencies in connection with their conducting or sponsoring any collection of information as defined by the PRA. The Proposing Release stated that the proposed rules would not impose any new recordkeeping or information collection requirements, or other collections of information that require approval of the Office of Management and Budget (‘‘OMB’’) under the PRA, and invited public comment on the accuracy of the CFTC’s estimate that no additional recordkeeping or information collection requirements or changes to existing collection requirements would result from the proposed rules.1258 One commenter said that the regulatory requirements imposed on swap dealers and major swap participants (including swap end users that may potentially be misclassified as swap dealers or major swap participants) will entail reporting and record keeping requirements.1259 Specifically, the commenter noted that the CFTC stated in the Proposing Release that ‘‘any entity determined to be a swap dealer or major swap participant would be subject to registration, margin, capital, and business conduct requirements * * * all activities that will have associated reporting and additional recordkeeping requirements.’’ 1260 Another commenter said that the CFTC should consider the implications under the PRA of all of its rulemakings under the Dodd-Frank Act as a whole.1261 As with the proposed rules, these final rules will not impose any new information collection requirements that require approval of OMB under the PRA. All reporting and recordkeeping 1257 44 U.S.C. 3501 et seq. FR 80203. 1259 See letter from Dominion Resources. 1260 See id. at 6. 1261 See letter from NFPEEU. 1258 75 E:\FR\FM\23MYR2.SGM 23MYR2 30702 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations requirements applicable to swap dealers and major swap participants instead result from other rulemakings, for which the CFTC has sought OMB approval. The CFTC submitted an information collection request to OMB for each proposed rulemaking containing reporting or recordkeeping requirements, including the recordkeeping and reporting requirements referenced by the first commenter,1262 which estimated the implications of the proposed collections on prospective respondents.1263 Moreover, in appropriate rulemakings, the CFTC sought to rely upon information collections that already had been proposed, in order to avoid imposing unnecessary additional burdens upon prospective respondents.1264 Parties wishing to review the CFTC’s information collections on a global basis may do so at www.reginfo.gov, at which OMB maintains an inventory aggregating each of the CFTC’s currently approved information collections, as well as the information collections that presently are under review. C. Cost Benefit Considerations CEA section 15(a) requires the CFTC to consider the costs and benefits of its action before promulgating a regulation under the CEA, specifying that the costs and benefits shall be evaluated in light of five broad areas of market and public concern: (i) Protection of market participants and the public; (ii) efficiency, competitiveness and financial integrity of futures markets; (iii) price discovery; (iv) sound risk management practices; and (v) other public interest considerations.1265 mstockstill on DSK4VPTVN1PROD with RULES2 1. Introduction The terms ‘‘major swap participant’’ and ‘‘swap dealer’’ are defined in CEA sections 1a(33) and 1a(49), as added by the Dodd-Frank Act, to include any person that holds swap positions above a certain level (in the case of the term ‘‘major swap participant’’) or that engages in certain activities (in the case of the term ‘‘swap dealer’’), with certain exclusions and exceptions, all as discussed in parts II and IV of this 1262 See, e.g., 75 FR 71379, 71386 (Nov. 23, 2010) (proposed registration rules); 75 FR 70881, 70884 (Nov. 19, 2010), 75 FR 71397, 71401 (Nov. 23, 2010), 75 FR 71391, 71394 (Nov. 23, 2010), 75 FR 80638, 80656 (Dec. 22, 2010), and 76 FR 33066, 33076 (Jun. 7, 2011); and 76 FR 27802, 27819 (May 12, 2011) (collectively, the information collection requests for the proposed business conduct rules). 1263 See 44 U.S.C. 3506 (PRA program requirements) and 3507 (PRA submission requirements). 1264 See, e.g., 75 FR 80638, 80656 (Dec. 22, 2010). 1265 7 U.S.C. 19(a). VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 Adopting Release. Section 712(d)(1) of the Dodd-Frank Act directs the CFTC and the SEC, in consultation with the Board, jointly to further define these and other terms. Also, CEA section 1a(49)(D) directs the CFTC to promulgate regulations to establish factors with respect to the making of the determination to apply the de minimis exception to the definition of the term ‘‘swap dealer.’’ The provisions of the Dodd-Frank Act that direct the further definition of the terms ‘‘swap dealer’’ and ‘‘major swap participant’’ should be viewed in the context of Congress’ consideration of the consequences that would arise from regulating persons and activities that were previously free from regulation. The Dodd-Frank Act is, in part, a response to a financial crisis in which unregulated swaps played a major role.1266 It includes provisions to regulate swap dealers and major swap participants in order to address concerns about this previously unregulated market. In this context, the Dodd-Frank Act requires that rules should ‘‘further define’’ the terms ‘‘swap dealer’’ and ‘‘major swap participant’’ by establishing and providing guidance with respect to the criteria for determining if a person is covered by one of the statutory definitions and therefore should be subject to certain regulatory requirements under Title VII; the Dodd-Frank Act does not direct the Commissions to define those terms in a vacuum. So, even in the absence of these rules, Title VII would require the regulation of persons that act as swap dealers or hold positions causing them to be major swap participants. Consequently, a large part of the costs and benefits resulting from the regulation of swap dealers and major swap participants result from the DoddFrank Act itself and not from these definitional rules. 2. General Cost and Benefit Considerations In considering the comments on the proposed rules and the various alternatives available for the final rules, the CFTC sought to promulgate final rules that will help swap market participants and the public to apply the statutory definitions of the terms ‘‘swap dealer’’ and ‘‘major swap participant’’ in an efficient, uniform and accurate manner. We believe that doing so will protect market participants and the public, promote the efficiency, competitiveness and financial integrity of the swap markets, facilitate price 1266 See, e.g., S.Rep. 111–176, The Restoring American Financial Stability Act of 2010 at 29. PO 00000 Frm 00108 Fmt 4701 Sfmt 4700 discovery, encourage sound risk management practices and advance the public interest in general. That is, by providing direction and guidance as to which factors are relevant in applying the statutory definitions, and how to apply those factors to particular situations in the swap markets, the CFTC believes the final rules will provide benefits by reducing the cost of determining whether a particular person is covered by the statutory definitions, helping to make similar determinations for persons that are similarly situated, and promoting application of the terms ‘‘swap dealer’’ and ‘‘major swap participant’’ in conformity with the statutory definitions. The costs and benefits considered in this final rule fall in two categories: First, those an entity will experience in determining whether it is a ‘‘swap dealer’’ or ‘‘major swap participant’’ as further defined in this rulemaking; and second, those attributable to the fact that, as interpreted in this rule, a greater or fewer number of entities at the boundaries of the statutory definitions may be deemed within them. With respect to the first category, and as discussed further in sections V.A.3.j. and V.A.4.b. below, the CFTC has endeavored to approximate the costs of making these determinations. At the same time, the CFTC believes that the careful consideration of, and detailed response in this Adopting Release to, comments regarding the application of the statutory definitions will provide useful, practical guidance, yielding a substantial if unquantifiable benefit to entities making such determinations. The costs and benefits in the second category—those associated with the rules being more or less inclusive—were a primary concern of the CFTC and commenters throughout this rulemaking. Commenters stated that if the CFTC’s final rules were to lead to interpretations of the statutory definitions that are over-inclusive, the result would be that entities would likely incur significant, unjustifiable costs attributable to various regulatory requirements intended for actual swap dealers and major swap participants.1267 Other commenters were concerned that if the rules were to lead to underinclusive interpretations, the benefits expected from Title VII would be dampened.1268 The CFTC does not dismiss these potential unintended results and we 1267 See letters from API I, Atmos Energy, BG LNG I, Dominion Resources, Hess, NCGA/NGSA I, NFPEEU, Vitol and WGCEF VIII. 1268 See letters from AFR, Better Markets I and Greenberger. E:\FR\FM\23MYR2.SGM 23MYR2 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations have responded to these comments in the policy determinations made above.1269 We recognize that these definitional rules are ‘‘gating’’ rules, and that this gating function will affect whether entities at the boundaries of the statutory definitions incur costs attributable to the regulatory regime that Congress has prescribed and the CFTC has implemented through other substantive regulations. Correspondingly, these definitional rules will also affect the extent of benefits for the swap market and the public resulting from those regulations. It is important to also recognize, however, that as stated above, the regulation of persons acting as swap dealers or who hold positions causing them to be major swap participants is required by the Dodd-Frank Act. For entities that are not on the boundaries of the statutory definitions, but rather squarely within them or entirely outside of them, these rules will not affect the costs and benefits that result from their inclusion or exclusion. The latter group of costs and benefits are a consequence of the statutory definitions prescribed by Congress. In this rulemaking, we considered that more inclusive rules and guidance would cause some entities at the boundaries of the definitions to be covered by one of the definitions and therefore incur both initial and recurring direct costs of complying with Dodd-Frank Act requirements, while less inclusive rules and guidance would have the opposite effect.1270 Thus, as more or fewer entities are covered by the definitions, the amount of such direct compliance costs incurred by entities in the aggregate will vary. However, this variance in the aggregate compliance costs resulting from the CFTC’s definitional guidance in this rulemaking must be distinguished from the compliance costs that any particular entity will incur stemming from the other rulemakings prescribing regulations applicable to swap dealers and major swap participants. Consideration of the specific costs and benefits attendant to various substantive 1269 See, e.g., parts II.A.4.g, II.D.3.a and IV.B.3.a. example, the final rules specify criteria related to application of the de minimis exception, the range of transactions that are eligible for the exclusion of swaps in connection with the origination of loans, and the requirements for limited designation as a swap dealer, each of which will impact the total number of entities that are subject to swap dealer regulation. The final rules also specify criteria related to the thresholds for major swap participant status, factors that may be considered in the major swap participant calculations, and the threshold for ‘‘highly leveraged’’ status, each of which will impact the number of entities that are major swap participants. mstockstill on DSK4VPTVN1PROD with RULES2 1270 For VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 regulations applicable to swap dealers and major swap participants is beyond the limited scope of this rulemaking. Moreover, the variance in aggregate compliance costs resulting from this rulemaking will not track, on a ‘‘one for one’’ basis, the number of entities included in the definitions as the rules are more or less inclusive. This is because the initial and recurring compliance costs for any particular swap dealer or major swap participant will depend on the size, existing infrastructure, level of swap activity, practices and cost structure of the entity designated as such.1271 Another reason that the aggregate costs resulting as more or fewer entities are included in the definitions will not precisely track the number of such entities is that indirect costs are likely to result as market participants seek to avoid the regulations attendant to swap dealer or major swap participant status by, among other things, reducing their swap activities.1272 We do not expect that the 1271 It is likely that a swap dealer or major swap participant would incur direct compliance costs related to technology, personnel and capital. See CFTC, Registration of Swap Dealers and Major Swap Participants; Final Rule, 77 FR 2613 (January 19, 2012); CFTC, Business Conduct Standards for Swap Dealers and Major Swap Participants With Counterparties; Final Rule, 77 FR 9733 (February 17, 2012) and CFTC, Swap Dealer and Major Swap Participant Recordkeeping, Reporting, and Duties Rules; Futures Commission Merchant and Introducing Broker Conflicts of Interest Rules; and Chief Compliance Officer Rules for Swap Dealers, Major Swap Participants, and Futures Commission Merchants; Final Rule, 77 FR 20128 (April 3, 2012). 1272 For example, those entities would lose the profits they may have gained from those activities, and potentially from related business activities if their customers cut back their business relationships because the abstaining entities no longer engage in those swap activities. We recognize that small entities are more likely than large entities to abstain from swap activities in order to avoid being covered by the swap dealer definition. Smaller entities are less likely to have existing technology and procedures that would comply with new regulations and therefore their initial costs of compliance with the requirements applicable to swap dealers are likely to be larger. Moreover, the same fixed costs will have a proportionally greater effect on small entities. Other market participants may also bear some costs if entities abstain from dealing activities or if large users of swaps reduce their activities to avoid major swap participant status. These costs could include transition costs as the other market participants identify new counterparties with which to enter into the same swaps. In addition, and likely more important, as more entities abstain from swap activities, other entities that are seeking to enter into swaps may have a reduced choice of counterparties, which may lead to unfavorable financial terms for swaps and imperfect matches between risks and the swaps that are available. These factors may increase the cost of risk mitigation in general, as entities use more costly risk management strategies in place of swaps. See generally letters from API I, BG LNG I, BOK dated February 22, 2011 (‘‘BOK III’’), COPE I, Midsize Banks, NEM, NCGA/NGSA I, NGFA I, Chevron Federal Credit Union, M&T I, Sidley and PO 00000 Frm 00109 Fmt 4701 Sfmt 4700 30703 extent of these indirect costs will be directly related to the number of entities included in the definitions. The CFTC likewise acknowledges that more or less inclusive definitions may increase or decrease the systemic benefits expected from the composite regulation of swap dealers and major swap participants. These include improved transparency and market orderliness, as well as the reduction of excess leverage and systemic risk. The CFTC believes that less inclusive final rules could negatively impact these interests in several ways: Those who engage in swaps with entities that elude swap dealer or major swap participant status and the attendant regulations could be exposed to increased counterparty risk; customer protection and market orderliness benefits that the regulations are intended to provide could be muted or sacrificed, resulting in increased costs through reduced market integrity and efficiency; 1273 and entities that elude swap dealer or major swap participant status may gain an unwarranted competitive advantage over other market participants.1274 Generally, rules that capture more entities are likely to increase these benefits, while rules that capture fewer entities are likely to have the opposite effect, though there are several additional factors that also have a bearing on the presence and magnitude of increased or decreased benefits. These factors include the number and size of entities whose status changes WGCEF I. See also Roundtable Transcript at 39 (remarks of Eric Chern, Chicago Trading Company), 133–34 (remarks of Brenda Boultwood, Constellation). 1273 More uniform compliance with regulations leads to more uniform expectations that market participants may reasonably have about the financial integrity of various swap dealers and major swap participants. Less uniform compliance, on the other hand, could introduce additional uncertainty about the financial integrity of an individual swap dealer or major swap participant. This could result in reduced market efficiency. Moreover, foreseeable ‘‘network effects’’ could magnify these costs. That is, since requirements promoting transparency and orderly documentation are expected to increase market participants’ general level of certainty about the swap positions held by others in the market, the wider the market application the greater the benefit. For example, in the 2008 financial crisis, uncertainty about the potential obligations of various market participants led to actions to restrict credit and reduce leverage that may not have been taken if there was greater confidence about market participants in general; this uncertainty also hampered regulatory efforts. Significant pockets of unregulated swap activity attributable to less inclusive definitions of the terms ‘‘swap dealer’’ and ‘‘major swap participant’’ may result in costs related to uncertainty and lack of information. 1274 The extent of any such competitive advantage would depend on the number of entities that are inaccurately not covered by the definitions and the extent of their swap activities relative to the market in which they are active. E:\FR\FM\23MYR2.SGM 23MYR2 30704 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES2 under more or less inclusive rules, the number of swaps they engage in, their connectedness to other institutions and role in the financial system, and the types of financial instruments they would have utilized in the absence of swap dealer and major swap participant regulations. At this time, it is also not possible to quantify the impact of these rules on the direct and indirect costs and benefits that result from changing the status of an entity that is on the boundaries of the Dodd-Frank Act’s definitions of the terms ‘‘swap dealer’’ or ‘‘major swap participant.’’ The CFTC does not have adequate information about market participants’ swap activities to determine which entities will change their activities in response to the definitions, which would be necessary in order to determine the significance of the impact on costs and benefits of including or excluding those entities from the regulations pertaining to swap dealers and major swap participants. Costs may not be estimated in an accurate or meaningful way for many reasons, including because all of the regulations pertaining to swap dealers and major swap participants have not yet been issued in their final form, and because the CFTC does not have adequate information about market participants’ existing technology, infrastructure, use of swaps, or cost structure.1275 Changes in the total benefits resulting from the definitional regulations are also difficult to quantify, since many of the benefits of the swap dealer and major swap participant regulations are indirect, rather than direct. As a consequence, the CFTC may recognize and describe the impact of these rules on the overall costs and benefits deriving from swap dealer and major swap participant regulations, but it is not possible to quantify them at this time. The applicable provisions of the Dodd-Frank Act regarding the term ‘‘eligible contract participant’’ are somewhat different, in that the statute modifies a particular clause in the preexisting statutory definition of the term and also provides general authority to further define the term. The final rules 1275 Currently, prior to the implementation of Title VII, the U.S. swap market generally is not subject to substantive regulation, and market participants generally do not disclose detailed information about their swap activities and positions. This lack of data reduces our ability to analyze the swap activities of individual market participants, as well as the market as a whole, and thus impacts our ability to analyze the costs and benefits of these rules. Our analysis, out of necessity, is based on data that currently is available. VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 adopted in this regard provide guidance for the application of these provisions. 3. Comments on the Discussion of Costs and Benefits in the Proposing Release Some commenters suggested that the discussion in the Proposing Release of the costs and benefits of the proposed rules further defining the terms ‘‘swap dealer, ’’ ‘‘major swap participant’’ and ‘‘eligible contract participant’’ was inaccurate or inadequate.1276 For example, commenters suggested that in considering the final rules, the CFTC should consider empirical data regarding the costs and benefits flowing from the rules,1277 opportunity costs associated with regulatory uncertainty,1278 and alternatives that would impose fewer costs.1279 One commenter suggested that the CFTC should issue a second analysis of the costs and benefits of the rules for public comment,1280 while another commenter said that the consideration of cost and benefits should include the cumulative cost of interrelated regulatory burdens arising from all the rules proposed under the Dodd-Frank Act.1281 Another commenter said that the costbenefit analyses in the Proposing Release may have understated the benefits of the proposed rules, because focusing on individual aspects of all the rules proposed under the Dodd-Frank Act prevents consideration of the full range of benefits that arise from the rules as a whole, in terms of providing greater financial stability, reducing systemic risk and avoiding the expense of assistance to financial institutions in the future.1282 This commenter said the consideration of benefits of the proposed rules should include the mitigated risk of a financial crisis.1283 We have endeavored to address the commenters’ concerns in this Adopting Release by undertaking careful consideration of various alternatives proposed by commenters as described in this section. With regard to the comments suggesting that we consider empirical data, the CFTC found that no comprehensive, publicly available empirical data related to the usage of swaps in all markets is available, and 1276 See letters from API I, NFPEEU, Regional Banks, Sidley and WGCEF I, II and VIII; see also letter from FSR III. 1277 See letters from WGCEF I and II. 1278 See letter from Dominion Resources. 1279 See letters from NextEra I and NFPEEU. 1280 See letters from WGCEF I and II. 1281 See letter from NFPEEU. 1282 See letter from Better Markets II. 1283 Better Markets cited estimates that the worldwide cost of the 2008 financial crisis in terms of lost output was between $60 trillion and $200 trillion, depending primarily on the long term persistence of the effects. See id. PO 00000 Frm 00110 Fmt 4701 Sfmt 4700 commenters provided very little empirical data to aid us in this rulemaking. 4. Costs and Benefits of the Rules Further Defining ‘‘Swap Dealer’’ The Proposing Release proposed certain factors that could be relevant to market participants when determining whether they are covered by the statutory definition of the term ‘‘swap dealer.’’ The CFTC received comments in response to numerous issues and considered a variety of alternatives in light of those comments, weighing the costs and benefits of each. In particular, we considered alternatives with respect to the activities indicative of holding oneself out as, or being commonly known as, a dealer in swaps, making a market in swaps, entering into swaps as a ‘‘regular business,’’ the exclusion available to IDIs for swaps offered in connection with the origination of loans, inter-affiliate swaps, swaps hedging physical positions, limited dealer status, and the possibility of providing particularized treatment under the definition for various types of entities. As noted above, in considering these alternatives the CFTC’s primary objective was to promulgate a rule under which market participants could efficiently and accurately determine whether they are engaged in any of the activities that are included in the statutory definition of swap dealer, and whether they are covered by any of the exclusions in the statutory definition. The scope of our consideration of these alternatives included the five factors specified in section 15(a) of the CEA. That is, we considered how the promulgation of final rules that would promote application of the definition of the term ‘‘swap dealer’’ in a manner that is consistent with the statutory definition would protect market participants and the public, promote the efficiency, competitiveness and financial integrity of the markets,1284 facilitate price discovery, encourage sound risk management practices and serve the public interest. Rather than describing in a separate section how we applied the elements of section 15(a) in the final rule further defining the term ‘‘swap dealer,’’ the discussion below highlights the application of those elements where appropriate. 1284 Although by its terms, CEA section 15(a)(2)(B) applies to the futures (not swaps) markets, the CFTC finds this factor useful in analyzing the costs and benefits of these regulations further defining the terms ‘‘swap dealer,’’ ‘‘major swap participant’’ and ‘‘eligible contract participant’’ as well. E:\FR\FM\23MYR2.SGM 23MYR2 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES2 a. Indicia of Holding Oneself Out as a Dealer in Swaps or Being Commonly Known in the Trade as a Dealer in Swaps As discussed above, the Proposing Release set forth activities that could indicate that a person is holding oneself out as a dealer or is commonly known in the trade as a dealer in swaps.1285 Commenters on this point said that persons who are not swap dealers also engage in some of the activities identified in the proposed rule. In other words, these commenters asserted that these activities are not accurate indicators of swap dealer status.1286 Commenters were concerned that if the rule included, as bright-line tests of swap dealer status, the proposed indicators of holding oneself out as, or being commonly known as, a swap dealer, then the rule would lead to an interpretation of the statutory definition that would be more inclusive. This, in turn, would lead to the costs of a more inclusive rule, and possibly the costs of entities abstaining from swap activities to avoid being covered by the definition, as discussed above.1287 While we are cognizant that providing no guidance about how to apply the statutory provision stating that the term ‘‘swap dealer’’ includes any person who holds itself out as a dealer in swaps or is commonly known in the trade as a dealer or market maker in swaps would deprive market participants of interpretive guidance—thus increasing the direct and indirect costs to apply the rule—we considered the commenters’ concern that use of the proposed characteristics as bright-line indicators of swap dealer status could potentially result in significant costs. Therefore, to mitigate the costs of applying the rule and the costs that would result if the rule were more inclusive, the Adopting Release clarifies that the identified activities are not per se conclusive, and could be countered by other facts and circumstances indicating that an entity is not a swap dealer. The CFTC believes that providing guidance about the factors that are correlated with holding oneself out as or being commonly known as a swap dealer—even if not perfectly so—mitigates the risk that the rule would include entities that are not actually covered by the statutory definition and provides benefits in reducing the costs of application of the rule. 1285 See part II.A.1, supra. part II.A.2.a, supra. 1287 See part VII.C.2, supra. 1286 See VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 b. Making a Market in Swaps Commenters on this point provided several perspectives on what does and does not constitute market making.1288 With those comments in view, we considered a number of characteristics for potential inclusion in the rule, and evaluated potential costs and benefits of each before determining that making a market in swaps is best described as ‘‘routinely standing ready to enter into swaps at the request or demand of a counterparty.’’ We also further described various activities that constitute routinely standing ready, such as routinely quoting bid or offer prices for swaps, routinely responding to requests made directly by potential counterparties for bid or offer prices, etc. The alternative options we considered are discussed below in light of the five broad areas specified in section 15(a) of the CEA. Offer swaps on both sides of the market. The proposed rule stated our view that an entity may be a market maker in swaps even if the entity does not enter into swaps on both sides of the market. Several commenters suggested the rule should require that an entity enter into swaps on both sides of the market as a prerequisite to market maker status.1289 We have considered these comments and concluded that an entity could be a market maker by offering swaps on one side of the market, while entering into transactions on the other side of the market using other financial instruments. Accordingly, using presence on both sides of the market as a determinative factor in applying the definition of the term ‘‘swap dealer’’ could cause the final rule to be under-inclusive by excluding entities that function as market makers by entering into swaps on one side of the market. In addition, some entities may limit their swap dealing activities to one side of the market in an attempt to avoid being covered by the definition, again leading to the rule being under-inclusive. Excluding cleared swaps from consideration. Some commenters said cleared swaps should not be considered in determining whether an entity is a swap dealer.1290 Moreover, they suggested that dealers operating through clearinghouses might choose to exit the market if required to register as swap 1288 See part II.A.2.b, supra. letters cited in notes 52 to 54, supra. 1290 See letters from Newedge and Traders Coalition. The commenters said that considering cleared swaps in determining if an entity is a swap dealer may cause entities to reduce their use of cleared swaps, which would be contrary to the general purpose of the Dodd-Frank Act to encourage clearing. 1289 See PO 00000 Frm 00111 Fmt 4701 Sfmt 4700 30705 dealers, which would reduce liquidity.1291 It is possible that some entities whose swap dealing activities are limited to cleared swaps will abstain from those activities in order to avoid being covered by the definition, leading to costs associated with entities abstaining from the market, as described above. Other such entities may continue their swap dealing activities and incur the initial and ongoing costs of compliance with swap dealer regulations. Benefits are linked to these compliance costs, however. For example, the swap dealer business conduct requirements are expected to provide benefits in terms of protecting market participants and the public. In any case, we note that the statutory definition of the term ‘‘swap dealer’’ does not include any factor considering whether the swaps that an entity enters into are cleared as opposed to not cleared. Therefore, the costs raised by commenters resulting from the absence of an exclusion of cleared swaps are costs that result from the statutory definition and not the final rule. c. Regularly Entering Into Swaps With Counterparties as an Ordinary Course of Business The final rule incorporates the statutory provisions that the term swap dealer includes a person that ‘‘regularly enters into swaps with counterparties as an ordinary course of business for its own account’’ and ‘‘does not include a person that enters into swaps for such person’s own account, either individually or in a fiduciary capacity, but not as a part of a regular business.’’ The CFTC believes that the determinative issue in interpreting these provisions is whether an entity’s activity of entering into swaps is part of its usual and normal course of business and is identifiable as a swap dealing business, as discussed above.1292 This Adopting Release also describes certain activities that constitute both entering into swaps ‘‘as an ordinary course of business’’ and ‘‘as a part of a regular business.’’1293 The CFTC believes that dealers frequently engage in the activities described in this Adopting Release, while non-dealers do not.1294 As a consequence, such activities are useful indicators of swap dealing activity and it is appropriate to incorporate them in 1291 See letters from CMC and Traders Coalition. part II.A.4.c, supra. 1293 See id. 1294 For example, commenters suggested that these types of activities are indicative of swap dealing. See letters from EEI/EPSA, Hess, NextEra I, Utility Group and Vitol. 1292 See E:\FR\FM\23MYR2.SGM 23MYR2 30706 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations the guidance interpreting the final rule in order to properly apply the statutory definition. d. The Dealer-Trader Distinction The Adopting Release incorporates the dealer-trader distinction as a consideration when identifying swap dealers. While not dispositive, the CFTC anticipates that the dealer-trader distinction will be useful as a consideration, particularly in light of the degree to which it overlaps with many of the other characteristics identified in the Adopting Release that are indicative of dealing activity. The dealer-trader distinction is likely to be familiar to some market participants that must determine whether they are swap dealers, and to the extent that this is true, the CFTC believes that its incorporation as a factor in the swap dealer analysis will help to reduce uncertainty for those entities, thereby reducing their costs of determining whether they are dealers.1295 By incorporating the dealer-trader distinction as one consideration within a broader facts and circumstances approach, the CFTC has minimized the costs of under inclusion that could arise if the distinction were used as a bright line test to exempt entities that would otherwise be subject to regulation as swap dealers.1296 e. Limited Designation as a Swap Dealer The Proposing Release provided that ‘‘a person who is a swap dealer shall be deemed to be a swap dealer with respect to each swap it enters into’’ but explained that an entity could apply for limited designation. Several commenters suggested that the CFTC should allow for the possibility of ‘‘presumptive limited designation’’ as a swap dealer in order to reduce costs.1297 We have decided, however, not to provide for a presumptive limited designation in the final rule. While a presumptive limited designation would, 1295 See letters from CCMR I and MFA I. letter from AFSCME. 1297 See part II.E.2.a, supra. Several commenters stated that it is unduly burdensome to require swap dealers to apply swap dealer requirements to all of their swaps (including swaps not resulting from dealing activity) while they pursue limited designation. See, e.g., letters from Capital One, Farm Credit Council I and FHLB I. Another commenter suggested that not allowing for a presumptive limited designation could cause some community lenders to cease offering swaps. See letter from Capital One. Another commenter suggested that to reduce costs, presumptive limited designation should be available for any formal division of an entity, to avoid the costs that would arise if any entity were to reorganize its operations without certainty that limited designation would be available to the reorganized entity. See letter from WGCEF VII. mstockstill on DSK4VPTVN1PROD with RULES2 1296 See VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 for the entities that seek it, mitigate the costs of applying for limited designation and any costs related to uncertainty about whether limited designation will be granted,1298 it could also lead to costs arising from the rule being less inclusive. Persons engaged in a broad range of activities that are all covered by the definition of the term ‘‘swap dealer’’ would have a significant incentive to improperly claim eligibility for a presumptive limited designation. This would hinder the application of swap dealer regulations to all of their swap dealing activities and thereby increase costs in terms of lesser protection of market participants and the public, as well as impairment of sound risk management practices. Commenters suggested that to reduce the costs of determining whether a particular person is eligible for a limited designation as a swap dealer, the CFTC should set out certain criteria that would be relevant to that determination, such as the degree of complexity of an entity’s swap activities, what percentage of an entity’s total swap activities are dealing activities, the relationship between the entity and its swap counterparties, and how difficult it would be to distinguish between its ‘‘designated’’ and ‘‘non-designated’’ swaps.1299 Rather than setting forth specific factors to be considered with respect to limited designation as a swap dealer, this Adopting Release takes a facts and circumstances approach, stating that all relevant factors will be considered in the determination. This Adopting Release also states that an important factor in determining whether a swap dealer qualifies for a limited designation is whether the swap dealer can demonstrate that the internal structure to which the limited designation applies (e.g., a division or business unit) complies with the swap dealer requirements. If such a structure is not pre-existing, the swap dealer will incur costs in creating a structure for its swap dealing activity in a manner that would qualify for limited designation. These costs depend on the circumstances of that swap dealer and cannot be quantified at this time; however, such costs are likely to be significant for at least some swap dealers. On the other hand, swap dealers who do qualify for the limited designation will benefit from reduced ongoing compliance costs since some swap dealer requirements are 1298 Entities that apply for limited designation as a swap dealer will be required to prepare a submission to the CFTC demonstrating their compliance with swap dealer regulations in the context of limited designation. 1299 See letters from Capital One and FHLB I. PO 00000 Frm 00112 Fmt 4701 Sfmt 4700 expected to apply to only those activities encompassed by the limited designation.1300 This flexible approach will allow entities to organize themselves in a manner that allows them to maximize the value of limited designation, so long as they are able to demonstrate that they will comply with swap dealer requirements. In settling on this flexible approach, we considered how the use of a limited designation would allow entities to minimize the effect of swap dealer registration on their swap activities, which fosters efficiency while also promoting sound risk management practices through swap dealer regulation. The facts and circumstances approach to limited designation will likely lead to some costs arising from uncertainty among market participants about whether steps they have taken or may take will permit them to qualify for a limited designation. However, we believe that market participants may mitigate such uncertainty costs by contacting staff to discuss changes under consideration, or by applying for limited designation on the basis of planned changes (rather than making the changes and then submitting the application). f. De Minimis Exception The Dodd-Frank Act requires that the CFTC exempt from designation as a swap dealer any entity ‘‘that engages in a de minimis quantity of swap dealing in connection with transactions with or on behalf of customers,’’ and that the CFTC ‘‘promulgate regulations to establish factors with respect to the making of this determination to exempt.’’ 1301 The proposed rule set out certain quantitative standards for identifying those entities whose swap activities were sufficiently small that applying swap dealer regulations to them would not be warranted.1302 Commenters raised several points regarding the potential costs and benefits of the proposed approach. We considered these points, addressed below, in preparing the final rule, which provides 1300 Some swap dealer regulations may be applied at the transactional level, while others may affect the operations and capital structure of the entity beyond the swaps or activities for which it has a limited designation. On this topic, some commenters suggested that limited designation should allow the swap dealer to limit operational compliance with swap dealer requirements to the portion of the business that is designated as a swap dealer. See letters from FSR I and WGCEF VII. Another commenter stated that the CFTC should not require additional reporting regarding the nondealing activities. See letter from Cargill. 1301 CEA section 1a(49)(D), 7 U.S.C. 1(a)(49)(D). 1302 See part II.D.1, supra. E:\FR\FM\23MYR2.SGM 23MYR2 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations that an entity qualifies for the de minimis exception if the notional amount of its swap positions or security-based swap positions over the prior 12 months arising from its dealing activity is $3 billion or less, and the notional amount of such positions with ‘‘special entities’’ is $25 million or less. However, during a phase-in period following the effective date of the final rules, an entity will not be required to register as a swap dealer if the notional amount of the swap positions it enters into over the prior 12 months arising from its dealing activities is $8 billion or less.1303 In determining the level of the notional amount thresholds for the de minimis exception, we considered comments stating that if the thresholds were set inappropriately low, persons engaged in a smaller quantity of swap dealing would face a choice between reducing their swap dealing activities to a level below the thresholds or registering as a swap dealer and incurring the costs of compliance with swap dealer regulation.1304 It follows from these comments that these entities would incur costs in making a decision about the extent to which they should engage in swap dealing, although none of the commenters specifically quantified the costs of making that decision. Commenters also expressed a concern that if many entities chose to reduce or cease their swap dealing activities in response to the de minimis thresholds, the availability of swaps may be reduced, particularly to the smaller swap users that typically engage in swaps with such entities, which could lead to costs for those smaller swap users.1305 Some commenters said that the CFTC should justify the final thresholds for the de minimis exception with an economic analysis; however, these commenters did not propose specific analyses the CFTC should perform or provide specific information that should be included in the analysis.1306 The CFTC evaluated data regarding index CDS that was provided by the SEC, and made that analysis available to the public.1307 The data showed that 80.8% of all participants in the index CDS market entered into index CDS mstockstill on DSK4VPTVN1PROD with RULES2 1303 See CFTC Regulation § 1.3(ggg)(4)(ii). e.g., letters and meetings cited in notes 377 to 381, supra. 1305 See, e.g., letters and meetings cited in note 378, supra. See also Roundtable Transcript at 201 (remarks of John Janney, Large Public Power Council). 1306 See letters from API I, FSR VI, Midsize Banks, Regional Banks and WGCEF I. 1307 See memorandum to the public comment file from the CFTC Office of the Chief Economist. 1304 See, VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 with an aggregate notional amount of less than $3 billion during 2011, and 88.7% of such market participants entered into index CDS with an aggregate notional amount of less than $8 billion during the same period of time. However, the 19.2% and 11.3% of market participants above those respective thresholds, accounted for 98.9% and 97.8% of the total notional amount of index CDS entered into during that time, which suggests that a relatively small number of entities are responsible for a large majority of activity in the index CDS market. The data also showed that 91.7% of all entities with 3 or more counterparties that are not recognized by ISDA as dealers entered into index CDS with an aggregate notional amount of $9 billion or more during 2011, suggesting that a large majority of dealers in index CDS likely enter into index CDS with an aggregate notional amount of $9 billion or more per year. These observations, and any conclusions derived from them, however, must be qualified by limitations of the data, including: (i) Although we expect that the data covers a very large part of the index CDS market, we cannot verify what percentage of all index CDS are represented in the data; (ii) the data is not filtered to reflect activity that would constitute swap dealing under the Dodd-Frank Act, so it is not possible to use the data to draw conclusions regarding any specific entity’s status as a swap dealer and (iii) the data does not cover other classes of swaps that are relevant to the de minimis threshold for swap dealers, such as interest rate swaps, equity swaps, foreign exchange swaps or other commodity swaps.1308 In light of these limitations, any conclusions drawn from the index CDS data must be regarded as provisional. We note that no matter the level at which the de minimis thresholds are set, there will always be some entities engaged in a quantity of swap dealing at or above the threshold level that will face the choice described by the commenters. As noted above, we considered the costs and benefits of dealer regulation in determining the notional amount standards in the final rule.1309 Among the costs we considered were those that would result if entities reduce or cease their swap dealing activities in response to the de minimis threshold and swaps become less 1308 See id. part II.D.3.a, supra. In particular, we note here that the higher notional amount standard in the final rule, as compared to the proposed rule, should reduce the number entities that will face the choice described by the commenters. 1309 See PO 00000 Frm 00113 Fmt 4701 Sfmt 4700 30707 available in smaller or niche markets. We considered that this could impact the competitiveness of those markets and undermine the ability of market participants to practice sound, costeffective risk management.1310 In principle, a higher threshold would promote a larger pool of swap-dealing entities (since entities with swap dealing activity below the threshold need not incur costs to comply with swap dealer regulations), meaning more potential counterparties available to swap users. On the other hand, a greater quantity of swap dealing would be undertaken without the customer protection, market orderliness and market transparency benefits of dealer regulation. This, in turn would impair the protection of market participants and the public, and undermine sound risk management practices, as described above.1311 We considered these factors in determining the level of the notional amount standard in the final rule. Some commenters advocated use of alternative measures (such as an entity’s current uncollateralized exposure from swaps, or the number or frequency of swaps) as the de minimis gauge.1312 Some commenters suggested that various types of entities should be subject to different de minimis thresholds,1313 or that the rule should vary the de minimis threshold by type of swap.1314 Some commenters suggested that the de minimis exception should take into account the purpose of an entity’s swap dealing activities or the entity’s general characteristics.1315 The CFTC believes that these proposed alternatives are unlikely to better promote the efficiency, competitiveness and financial integrity of the markets, or yield other benefits to a greater extent than the approach adopted in the final rule.1316 On the 1310 As noted above, it is not possible to quantify these potential costs with mathematical precision. See note 421, supra. The commenters on these points did not provide quantifications of such costs. 1311 Commenters expressed various views as to what level of benefits flow from dealer regulation. See, e.g., Roundtable Transcript at 137–43 (remarks of John Janney, Large Public Power Council, Bella Sanevich, NISA Investment Advisors, LLC, and Brenda Boultwood, Constellation) 1312 See letters cited in notes 384 and 385, supra. 1313 See letters from COPE I, Farm Credit Council I and MFX II and meeting with Electric Companies on April 13, 2011. 1314 See letters from Gavilon II and ISDA I. 1315 See letters from Farm Credit Council I, FHLB I and MFX II. 1316 We considered the proposed options in terms of whether they would promote: protection of market participants and the public; financial integrity and efficiency of swap markets; price discovery; sound risk management principles; and other public interest considerations. The commenters suggesting other measures did not offer E:\FR\FM\23MYR2.SGM Continued 23MYR2 30708 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES2 other hand, requiring market participants to consider more variables in evaluating application of the de minimis exception would likely increase their costs to make this determination. In light of these considerations, we concluded that to establish a single notional threshold for all of an entity’s swap dealing would best protect the markets and the public, foster efficiency and competitiveness and serve the public interest. We believe that using a de minimis threshold based on current uncollateralized exposure would lead to costs of calculation, which are discussed below in connection with the definition of major swap participant. Also, while current uncollateralized exposure may be a useful measure of the risk arising from a swap position, it fails to address the significance of an entity’s swap dealing activity in terms of customer protection and market orderliness, which are significant elements in the determination of whether an entity is engaged in a de minimis quantity of swap dealing.1317 In response to commenters’ suggestions, we considered the feasibility of assessing the breakeven point at which a potential swap dealer would earn enough profit from its swap dealing to support the costs to comply with swap dealer regulation.1318 However, this assessment would require access to non-public, proprietary data regarding the gross margins associated with the swap dealing activity of a wide variety of market participants. Such data is not available to the CFTC. One commenter suggested that the de minimis threshold for swaps related to a particular physical commodity should increase if the general price of the commodity increases, so that a constant quantity of the commodity could be hedged through a particular swap dealing entity without that entity exceeding the threshold.1319 However, this approach, which eschews reliance on the dollar value of swaps, would raise the complex question of when the level of dealing in swaps relating to the physical quantity of various commodities becomes more than de minimis. We do not believe that this approach would provide sufficient a systematic analysis of whether the measures would lead to more accurate determinations in all or even most cases, and we do not believe such an analysis would be possible at this time due to the lack of information regarding how swaps are used in all markets. See generally part II.D.4.a, supra. 1317 See part II.D.3.e, supra. 1318 See Roundtable Transcript at 193–94 (remarks of James Cawley, Javelin Capital Markets, and Camille Rudge, The PrivateBank and Trust Company). 1319 See letter from NCFC I. VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 additional benefits beyond those resulting from the final rule to justify the additional costs of application. Commenters also suggested that, in order to simplify application of the de minimis exception and thereby reduce costs, the final rule should include an overall threshold that considers an entity’s swaps and its security-based swaps.1320 However, the statute includes two different de minimis exceptions regarding the quantity of an entity’s swap dealing and its securitybased swap dealing. Therefore, the suggested approach would be contrary to the statute. The final rule provides for a lower de minimis gross notional threshold (i.e., $25 million over the course of twelve months) for swaps in which the counterparty is a ‘‘special entity,’’ as that term is defined in CEA section 4s(h)(2)(C) and CFTC Regulation § 23.401(c)). While it is possible that, for the reasons noted above, this lower threshold could reduce the number of potential providers of swaps to special entities, which may constrain the ability of special entities to practice sound risk management strategies in a costeffective manner, we note that the Dodd-Frank Act provides special entities with additional protections from market practices that could increase the risks they face in using swaps.1321 We believe the threshold in the final rule reflects an appropriate consideration of these potential costs and the benefits that result in terms of serving the public interest. Several commenters responded to the proposed de minimis thresholds limiting the number of an entity’s counterparties and swaps, suggesting that the factors would not be useful in identifying entities engaged in a de minimis quantity of swap dealing.1322 The final rule omits these factors. We believe that, in general, entities which will restrict their activities so as to remain under the de minimis notional amount threshold are likely to be those entities that are most willing to provide 1320 See letter from NYCBA Committee. generally Roundtable Transcript at 210– 15 (remarks of Mary-Margaret Collier, Tennessee Comptroller of the Treasury, John Janney, Large Public Power Council and Bella Sanevich, NISA Investment Advisors, LLC). 1322 Some commenters suggested that the number of counterparties and the number of swaps are not indicators of systemic risk. See letters cited in note 387, supra. Others claimed that the de minimis standard should not limit the number of an entity’s counterparties for policy reasons. See letters from Chesapeake Energy and Land O’Lakes I. Commenters also suggested that using number of counterparties or number of swaps as a factor would create an uneven playing field because it would discourage provision of swaps to small end users. See letters from EEI/EPSA and NMPF. 1321 See PO 00000 Frm 00114 Fmt 4701 Sfmt 4700 swaps with lower notional values. Counting an entity’s number of counterparties or swaps as de minimis factors could inappropriately discourage entities from providing swaps in smaller notional amounts. This, in turn, would likely make it more difficult for persons seeking small notional amount swaps to find dealers willing to provide them, which may increase their costs of hedging and discourage sound risk management practices. g. Exclusion of Swaps Entered Into by IDIs in Connection With the Origination of Loans The statutory definition of the term ‘‘swap dealer’’ excludes an IDI ‘‘to the extent it offers to enter into a swap with a customer in connection with originating a loan with that customer.’’ 1323 The proposed rule would implement this statutory exclusion by providing that an IDI’s swaps with a customer in connection with originating a loan to that customer are disregarded in determining if the IDI is a swap dealer. To prevent evasion, the proposed rule further provided that the statutory exclusion does not apply where the purpose of the swap is not linked to the financial terms of the loan, the IDI enters into a ‘‘sham’’ loan, or the purported ‘‘loan’’ is actually a synthetic loan such as a loan credit default swap or loan total return swap. Commenters on the costs and benefits of the proposed approach focused on the benefits of a flexible application of the exclusion, which they asserted would promote the offering of swaps by IDIs in connection with loans and thereby more closely tailor the risks of a loan to the borrower’s and the lender’s needs, and promote the risk-mitigating effects of swaps.1324 In terms of costs, commenters were concerned that a narrow application of the loan origination exclusion would cause IDIs to seek to avoid being covered by the definition of the term ‘‘swap dealer’’ by limiting their offering of swaps in connection with the origination of loans. Commenters said that the IDIs’ limitation of their swap offerings could lead borrowers to take steps with negative ramifications, such as reduced usage of swaps for risk mitigation (which could lead to costs from an increased risk of default by the borrower), shifting from the lending institution to another institution for the swap (which could lead to inefficiency costs since two different institutions would be involved), or shifting to 1323 See CEA section 1a(49)(A), 7 U.S.C. 1a(49)(A). 1324 See, e.g., letter from B&F Capital I. E:\FR\FM\23MYR2.SGM 23MYR2 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES2 another institution for both the loan and the swap (which could increase risk by increasing concentration in the markets for loans and swaps).1325 To mitigate these costs, commenters suggested that the loan origination exclusion should be construed broadly, particularly with respect to the range of loans covered,1326 the type of swaps covered,1327 the required timing for entering into a swap relative the corresponding loan’s origination,1328 and which financial institutions could be eligible for this exclusion.1329 The final rule limits the loan origination exclusion to swaps with terms that are directly related to the financial terms of the associated loan, or are required by loan underwriting criteria to to be in place as a condition of the loan in order to hedge commodity price risks incidental to the borrower’s business. We believe that extending the loan origination exclusion further, to encompass a broader range of swaps connected to a borrower’s other business activities would expand the exclusion beyond its statutory limits. This would lead to the costs associated with the rule becoming less inclusive, such as decreased protection of market participants and the public, as well as impaired risk management practices and market efficiency, as described above. This Adopting Release also includes guidance that the term ‘‘loan’’ should be construed for this purpose in accordance with the common law definition of the term, in order to efficiently allow all interested parties to determine which transactions and instruments are eligible to be a basis for the exclusion. The CFTC believes that a detailed definition of the term ‘‘loan’’ covering all of the potential variations in how loans may be structured would be both costly to apply (because of the level of analysis required to determine 1325 Commenters said that if, because of concern about triggering the de minimis threshold, IDIs were not willing to offer swaps at times when the borrower’s hedging needs change due to loan related events, borrowers would have an incentive to seek out lenders who are not so constrained, and this incentive would be particularly strong if a borrower was not able to provide collateral to secure both a loan and a related swap from two separate counterparties. See letters from BOKIII, FSR VI and Rabobank, New York Branch. One commenter suggested that the impact of a narrow loan origination exclusion should be considered in tandem with the de minimis exception, because an expansion of one of the exceptions could offset some of the costs that result from a narrow interpretation of the other. See letter from FSR VI. 1326 See letters cited in notes 308 to 313, supra. 1327 See letters cited in notes 299 to 301313, supra. 1328 See letters cited in notes 302 to 304313, supra. 1329 See letters cited in notes 314 to 317304313, supra. VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 if a particular instrument qualifies as a loan) and unnecessary (because a common law definition of the term ‘‘loan’’ has already been established). We believe that extending the loan origination exclusion to cover any swap entered into by an IDI and a borrower at any point during the life of the loan would be contrary to the statutory terms of the exclusion, which focuses specifically on swaps entered into in connection with the ‘‘origination’’ of loans, and could lead to the costs of the rule being less inclusive described above. Rather, since a primary element of a loan is the transfer of money from the lender to the borrower, the final rule provides that the loan origination exclusion can cover an otherwise eligible swap if the swap is entered into during a specified period around either the execution of the loan agreement or any draw of principal under the loan. We believe that this aspect of the final rule accurately reflects the statutory terms of the exclusion and will serve the public interest by being neither overinclusive nor under-inclusive. Commenters generally agreed with the statement in the Proposing Release that the exclusion should be available to IDIs in a loan syndicate, purchasers of a loan, assignees of a loan, and participants in a loan.1330 We believe that allowing the loan origination exclusion to extend to IDIs that participate in loans accurately reflects the statutory terms of the exclusion, so long as the IDIs’ participations are meaningful. Therefore, the rule includes a minimum participation requirement in order to avoid inappropriate exploitation of the exclusion—i.e., IDIs participating minimally in a loan syndication to gain eligibility for the exclusion — which could lead to costs of under-inclusion. The final rule allows the exclusion to be applied to a swap (which is otherwise covered by the exclusion) even if the notional amount of the swap is different from the amount of the loan tranche assigned to the IDI, so long as the IDI meets the minimum participation requirements in the loan. This provision is expected to facilitate minimization of the number of swaps borrowers enter into, and the number of counterparties they face with respect to those swaps, when entering swaps in connection with loans, thereby reducing the operational costs and risks born by borrowers. h. Inter-Affiliate Swaps The Proposing Release stated that the dealer analysis should consider the economic reality of swaps between affiliates, and preliminarily concluded that swaps ‘‘between persons under common control may not involve the interaction with unaffiliated persons that we believe is a hallmark of the elements of the definitions that refer to holding oneself out as a dealer or being commonly known as a dealer.’’ Commenters generally agreed with the proposed approach.1331 Some commenters expressed the view that the proposed approach would facilitate the use by affiliated corporate groups of centralized market-facing conduits, which would promote efficient risk management.1332 The final rule interprets the dealer definition not to encompass a person’s activities with respect to swaps between legal entities that are under common majority ownership. The final rule also provides that the swap dealer definition does not encompass the activities of a cooperative with respect to swaps between the cooperative and its members. We believe that such swaps generally serve to allocate or transfer risks within an affiliated group, rather than to move those risks out of the group to an unaffiliated third party, and therefore to include such swaps in the determination of whether an entity is a swap dealer would not be consistent with the statutory definition, nor would it serve the public interest or promote the protection of markets or the public. We also agree with commenters that the use of conduit structures to enter into swaps on behalf of commonly controlled entities has the potential to promote sound risk management practices and the efficiency of the swap markets. Therefore, including these swaps in the determination of whether a person is covered by the definition of ‘‘swap dealer’’ is not likely to provide significant benefits, but to include entities in the definition by virtue of these swaps would lead to the costs of the rule being overinclusive, as described above. i. Exclusions of Swaps Entered Into for Hedging Physical Positions Several commenters said that swaps used to hedge risks should not be considered in determining whether a person is a swap dealer. While the statutory definition of the term ‘‘swap dealer’’ does not specifically address hedging activity, the Commissions believe that in certain situations, entering into a swap for the purpose of hedging a physical position is not indicative of, and is not, swap dealing. 1331 See letters cited in note 341, supra. letters from Kraft, ONEOK and Shell Trading II. 1332 See 1330 See PO 00000 letters cited in note 305313, supra. Frm 00115 Fmt 4701 Sfmt 4700 30709 E:\FR\FM\23MYR2.SGM 23MYR2 30710 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations An interim final rule provides that the determination of whether a person is a swap dealer will not consider a swap that the person enters into for the purpose of offsetting or mitigating certain price risks as defined in the rule, if the swap meets conditions specified in the rule. When a person enters into a swap for the purpose of hedging the person’s own risks in specified circumstances, an element of the swap dealer definition— the accommodation of the counterparty’s needs or demands—is absent. Therefore, consistent with our overall interpretive approach to the definition, the activity of entering into such swaps (in the particular circumstances defined in the rule) does not constitute swap dealing. Providing an exclusion of such swaps from the swap dealer analysis reduces costs that persons using such swaps would incur in determining if they are swap dealers. mstockstill on DSK4VPTVN1PROD with RULES2 j. Exclusions of Certain Swaps Entered Into by Floor Traders The CFTC believes that it would be inappropriate to require persons who are registered with the CFTC as floor traders to include in the swap dealer analysis swaps that they enter into, using only proprietary funds, on or subject to the rules of a DCM or SEF and submit for clearing to a DCO, and that meet certain other conditions specified in the rule. The CFTC believes that a requirement that these persons register as swap dealers (if the swap dealer registration requirement were to apply) could lead to duplicative regulation, since they are already registered as floor traders. Providing an exclusion of such swaps from the swap dealer analysis reduces costs that persons using such swaps would incur if such swap activity were to require them to register as swap dealers. Since the swaps are entered into on an exchange, by a person who is registered with the CFTC and cleared, we expect that the potential impact on the transparency, market orderliness and other goals of dealer registration from excluding these swaps from the dealer analysis would be minimal. Importantly, the rule requires that the person comply with the record keeping and risk management requirements of CFTC Regulation §§ 23.201, 23.202, 23.203, and 23.600 with respect to each such swap as if the person. were a swap dealer. The requirement to comply with these important provisions reduces the potential for negative consequences from this rule. VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 k. Exclusions for Particular Types of Entities Several commenters said the CFTC should interpret the statutory definition of ‘‘swap dealer’’ to include per se exemptions from the definition for certain types of persons or persons who engage in certain activities.1333 These commenters argued, in general, that there would be little or no benefit from construing the statute as covering these persons or activities because they did not contribute to the causes of the recent financial crisis or they do not pose systemic risk.1334 These commenters also asserted that to interpret the statutory definition to cover these types of persons or activities would lead to the costs of the rule being more inclusive, as noted above.1335 As stated previously, we note that the statutory definition of the term ‘‘swap dealer’’ applies to ‘‘any person’’ who engages in the activities described in the statute and who does not fall within the specific exceptions and exclusions in the statute. Therefore, the costs of applying the statutory definition to certain types of persons identified by the commenters arise from the provisions of the statute and not from the CFTC’s rulemaking. In addition, to provide the requested per se exemptions from the statutory definition could also introduce the costs of the rule being less inclusive discussed above, such as decreased protection of market participants and the public, as well as impaired risk management practices and market efficiency. Regarding the argument that there is no or little economic benefit from interpreting the statutory definition to cover persons whose failure would not create systemic risk, the commenters making this point did not provide evidence or analysis to indicate whether there would be systemic risk concerns if they were to fail. While some of these commenters asserted that their swap activities are not comparable to the activities of the financial institutions that are generally considered to have had a significant role in the recent crisis, and some asserted that persons eligible for the claimed exemptions did not play a role in the crisis, even if these assertions are taken as true they are not determinative of whether persons of this 1333 See part II.A.2.f, supra. id. 1335 In addition, comments along these lines asserted that to apply dealer regulation to certain persons who are already subject to different financial regulations would be duplicative and could create additional costs. See letters from Farm Credit Council I, FERC Staff, Fidelity, GIC, MFA I, and NARUC and joint letter from ICI and SIFMA AMG. 1334 See PO 00000 Frm 00116 Fmt 4701 Sfmt 4700 type could in fact be a source of systemic risk. We emphasize that the relevant question in this regard would not be whether the failure of any one person within the class covered by a suggested exemption would be the source of systemic risk, but rather whether a failure of several or many such persons would impact the efficiency, competitiveness and financial integrity of the markets, impair sound risk management practices or otherwise affect the protection of markets and the public.1336 To be clear, we do not believe and we are not asserting that any of the types of persons discussed by the commenters in this regard necessarily could be the source of systemic risk concerns, but rather we point out that the comments in this regard were general assertions rather than a presentation of specific evidence or analysis to support the claimed exemptions from the statutory definition. Thus, even if the statute allowed for such exemptions, which we do not believe it does, none of the commenters provided substantial support for their assertions. Also, as noted above we believe that the dealer definitions should be construed in the light of several benefits of dealer regulation (including protection of the markets and the public, encouraging the efficiency, competitiveness and financial integrity of the swap markets, and the overall public interest) and not just in terms of mitigating potential systemic risk. In any case, we believe that the final rule and the guidance in the Adopting Release provide clarifications that in many respects mitigate the costs that were raised by some of the commenters seeking per se exemptions from the definition. l. Other Comments on the Rule Further Defining the Term ‘‘Swap Dealer’’ Commenters cited other potential costs that could arise from the proposed approach to interpreting the statutory definition of the term ‘‘swap dealer,’’ suggesting that the proposed approach was not sufficiently clear, may result in multiple interpretations, and risks 1336 This is so because the commenters requested per se exemptions for broad classes of persons and activities, rather than for specific persons. Whether a particular type of market participant, as a group, can be the source of systemic risk depends on, among other things, the financial strength of each entity in the group, the number and financial strength of their counterparties, the total amount of swap business conducted, the amount and types of margin posted by the entities in question as well as by their counterparties, what portion of their swap positions are cleared, the volatility of each swap’s value as well as the covariance in value for all the swaps in their portfolio, and numerous other economic factors. E:\FR\FM\23MYR2.SGM 23MYR2 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES2 covering entities that would not actually be covered by the statutory definition, if it were correctly interpreted.1337 Other commenters suggested that there could be high costs from application of the swap dealer regulations due to erroneous interpretation of the statutory definition of the term ‘‘swap dealer,’’ including high costs of regulatory uncertainty,1338 and therefore it is particularly important that the final rule provide guidance on the application of the statutory definition.1339 For example, these commenters said that if the final rule does not adequately clarify application of the statutory definition, market participants may incur unnecessary costs to avoid being covered by the definition of ‘‘swap dealer,’’ including by avoiding swap activities that are associated with areas of uncertainty under the rule.1340 Some commenters said that the proposed rule captures too broad a range of entities in its further definition of the term ‘‘swap dealer,’’ 1341 and that the asserted over-inclusiveness of the proposed rule could lead to direct costs for covered entities as well as indirect costs for covered entities, other swap market participants, and the public.1342 For example, the commenters assert that as entities change their swap activities in reaction to the rule, the objectives they previously achieved through swaps may either be compromised, accomplished through less suitable means, or both.1343 As another example, 1337 See letters from AIMA I, API I, Dominion Resources, FSR III, NRG Energy, Peabody and Utility Group. 1338 See letters from API I, Dominion Resources, FERC Staff, NextEra I and WGCEF VIII. 1339 See letters from API I, FSR III, M&T I, Utility Group and Vitol. 1340 One area cited by commenters as a potential source of such costs is the application for limited designation as a swap dealer. Commenters were concerned that if the parameters of the limited designation were uncertain, entities may incur opportunity costs from avoiding activities that may be incompatible with a limited designation, planning and operational costs from changing corporate structure in ways that are not actually necessary to obtain a limited designation, and other costs from modifying swap activities in response to uncertainty about the steps necessary for a limited designation. See letters from API I, BG LNG I, Dominion Resources, NextEra I, Vitol and WGCEF VII. 1341 See letters from BG LNG I, FSR III, NCGA/ NGSA I, and WGCEF I, II and VIII. 1342 See letters from API I, Atmos Energy, BG LNG I, Dominion Resources, Hess, NCGA/NGSA Iand Vitol, and WGCEF VIII. 1343 For example, an entity using swaps to hedge price risks may choose not to hedge or to use a different instrument to hedge similar positions. If it chooses not to hedge, its risk management objectives may be compromised. If it chooses to hedge using futures or some other instrument, that instrument may be less suitable for various reasons (e.g., basis risk, rollover risk, liquidity risk, less customizability, different fee structure, etc.). VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 the commenters assert that changes in swap activities may reduce the choice of counterparties available to market participants, which may lead to unfavorable financial terms for swaps and imperfect matches between risks and swaps, which could in turn lead to reduced usage of swaps and lower liquidity in the swap markets, resulting ultimately in increased costs of risk mitigation in general.1344 The commenters did not quantify the extent of these costs that may arise when entities change their swap activities in reaction to the rule further defining the term ‘‘swap dealer.’’ We believe that by addressing the concerns regarding the costs and benefits of specific aspects of the rule, discussed above in section V.C.5., the final rule will also mitigate the indirect costs that may arise from the rule. While it is impossible to completely eliminate the costs that entities will incur in interpreting the rule and applying it to their particular swap activities, we believe the final rule mitigates these costs by providing detailed guidance. Also, these costs may decrease over time as precedents are established to provide further guidance on the application of the statutory definition. For example, the final rule and the guidance in this Adopting Release mitigate the costs of uncertainty in application of the statutory definition by providing more detail about the interpretation of the statute’s inclusion of any person who ‘‘makes a market in swaps’’ and the statute’s exclusion of a person that enters into swaps, ‘‘but not as a part of a regular business.’’ The guidance describes activities that are indicative of making a market in swaps and of entering into swaps as a part of a regular business. The final rule also provides details regarding the scope of the statutory exclusion of swaps in connection with the origination of loans and the de minimis exception. Also, the final rule provides that swaps between majority-owned affiliates, swaps entered into by a cooperative with its members, swaps entered into for hedging physical positions as defined in the rule, and certain swaps entered into by floor traders, are excluded from the swap dealer determination. These provisions will reduce the costs that market However, it is not possible to quantify the costs and benefits resulting from these choices without knowing the terms of the individual swaps the entities would have used and the available alternatives for each of those swaps. 1344 On the other hand, entities may find that they can achieve their risk management goals using forward contracts, futures and other financial instruments, or they may determine that their financial risks can be reduced in other ways. PO 00000 Frm 00117 Fmt 4701 Sfmt 4700 30711 participants incur in determining whether they are covered by the statutory definition of the term ‘‘swap dealer.’’ While it is possible that some entities could choose to cease or reduce their swap dealing activities to avoid the costs of compliance with swap dealer regulations, which could impair the efficiency and competitiveness of the swap markets, there are also likely to be significant benefits derived from swap dealer regulation, including reduced counterparty risk, better protection of the markets and the public, and more assured financial integrity of the markets and improved market transparency. Moreover, whether such reductions in activity will lead to reduced liquidity in the swap markets, as some commenters assert, is not certain. For example, if such reductions in swap activity occur, new swap dealers may organize themselves or existing swap dealers may expand to accommodate the demand for swaps, although the time that would be required for this to occur and the extent to which it would occur are uncertain. In addition, indirect costs could arise from the rule being less inclusive. For example, if the rule considered factors that are not relevant to whether an entity is actually covered by the definition, such as by providing that only entities that make a two-sided market in swaps are makers of markets in swaps, then it is possible that entities could change their behavior in response to that aspect of the rule. For example, entities that previously made a twosided market in swaps may decide to make only a one-sided market in swaps, potentially leading to the types of costs that commenters said would arise if entities reduce their swap activities. Last, several commenters raised questions and offered suggestions about the timeline for implementation of swap dealer requirements 1345 and the sequencing of the CFTC’s rulemaking.1346 While we understand that appropriate timing of rulemaking and the implementation of the requirements applicable to swap dealers will play a significant role in mitigating inappropriate or avoidable costs flowing from those requirements, this rulemaking is limited to the interpretation of the statutory definition of the term ‘‘swap dealer,’’ and so these 1345 See letters from API I, Capital One, COPE ´ ´ dated March 14, 2011 (‘‘COPE II’’), FSR III,Societe ´ ´ Generale, and Vitol and WGCEF dated March 22, 2011 (‘‘WGCEF III’’). 1346 See letters from ABA Securities Association, BlackRock dated June 3, 2011 (‘‘BlackRock III’’), CDEU, Hess and WGCEF dated March 23, 2011 (‘‘WGCEF IV’’). E:\FR\FM\23MYR2.SGM 23MYR2 30712 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES2 comments are beyond the scope of this rulemaking. In sum, we are cognizant that both direct and indirect costs would arise if the rule further defining the term ‘‘swap dealer’’ did not appropriately reflect the statutory definition of the term. Such costs, which would arise as the rule is either more or less inclusive, are detailed above. The Adopting Release provides benefits by interpreting the term ‘‘swap dealer’’ in a manner that is as close as possible to the statutory definition of the term, thereby mitigating the potential costs of both over-inclusiveness and underinclusiveness. m. Costs of Applying the Rules Further Defining the Term ‘‘Swap Dealer’’ In order to apply the rules further defining the term ‘‘swap dealer’’ and determine whether or not it is covered by the definition, an entity will incur direct costs in the form of personnel hours devoted to analyzing the entity’s activities with respect to swaps and determining whether the entity is covered by the definition. These costs will depend on the nature of the entity’s swap activities in the relevant situation. For some entities, it will be relatively clear that they are covered by the definition and they will incur relatively few costs in confirming that. It is expected that for many entities it will be relatively clear that they are not covered by the definition and they will incur little or no cost in confirming that determination. However, for some entities, especially those that enter into swaps in a variety of different ways and circumstances, the determination will be more complex and will require that personnel with financial and legal expertise review the circumstances of the entity’s swap activities to make the determination of whether the entity is covered by the definition. It is important to recognize that this would be the case in the absence of any rule further defining the term ‘‘swap dealer,’’ or regardless of the terms of the rule, because entities would have to interpret the statutory definition to determine whether they are covered. Thus, at a minimum, a significant portion of the costs discussed below is attributable to the inclusion in the Dodd-Frank Act of a definition of the term ‘‘swap dealer’’ and not from any aspect of the final rules further defining that term. Indeed, the final rule provides benefits by minimizing these costs by providing guidance about the application of the statutory definitions in various situations. The amount of time and resources that must be expended by an entity in VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 order to determine whether it qualifies as a dealer will vary considerably depending on the complexity of the entity’s operations. In addition, the direct costs will vary depending on the determinations the entity must make— reviewing whether or not it is covered by the definition of the term ‘‘swap dealer,’’ whether it qualifies for the de minimis exception, or whether it seeks to obtain a limited purpose registration as a swap dealer. Depending on an entity’s situation, it may incur some or all of these costs. We did not receive any comments quantifying the costs that an entity may incur in applying any aspect of the definition of ‘‘swap dealer,’’ nor are we aware of any studies or surveys regarding this particular issue. Therefore, the CFTC staff has estimated the amount of time that entities may require to apply the definition in various situations. These estimations are for informational purposes and require the CFTC to consider the aforementioned highly uncertain criteria. Regarding the determination of whether an entity is covered by the definition of the term ‘‘swap dealer,’’ an entity with a relatively low degree of complexity in its organizational structure (i.e., one legal entity) and in its swap activities (i.e., little variation in the types of swaps they use and the purposes for which they use them) might expect the direct cost of such a determination to be approximately $13,000.1347 We estimate that approximately 250 entities of this type would be engaged in swap activities that 1347 This estimate is based on the following staff requirements for this determination: 20 hours for a financial analyst at $161/hour, 5 hours of a financial manager at $325/hour, 2 hours of a controller or chief financial officer at $722/hour, 10 hours of a compliance attorney at $355/hour, 2 hours of a senior attorney at $992/hour, and 2 hours of a chief compliance officer at $664/hour. We round to two significant digits. The multiplier of 5.35, which was used in the Proposing Release, is higher than the multiplier that the CFTC has used for similar purposes in other final rules adopted under the Dodd-Frank Act. See, e.g., CFTC, Swap Data Recordkeeping and Reporting Requirements; Final Rule, 77 FR 2135, 2173 (Jan. 13, 2012) (adjustment factor of 1.3 for overhead and other benefits). The CFTC believes that use of a higher multiplier here is appropriate because some persons may retain outside advisors to assist in making the determinations under the rules. The estimates of the hourly cost for these personnel are from SIFMA’s Management & Professional Earnings in the Securities Industry 2010, modified by CFTC staff to account for an 1800-hour work-year and multiplied by 5.35 to account for firm size, employee benefits, and overhead. These estimates are intended to reflect averages for compiling and analyzing the information necessary to apply the definition of the term ‘‘swap dealer.’’ We recognize that particular entities within each range of complexity may, based on their circumstances, incur costs substantially greater or less than the estimated averages. PO 00000 Frm 00118 Fmt 4701 Sfmt 4700 create sufficient uncertainty regarding the application of the definition that they would have to incur these costs. An entity with a moderate degree of complexity in its organizational structure (i.e., a few legal entities) and its swap activities (i.e., some variation in the types of swaps they use and the purposes for which they use them) might expect the cost of such a determination to be approximately $54,000.1348 We estimate that approximately 150 entities of this type would be sufficiently uncertain regarding the application of the definition that they would have to incur these costs. An entity with a high degree of complexity in its organizational structure (i.e., multiple affiliates in the corporate group) and its swap activities (i.e., using diverse types of swaps for various purposes) could spend approximately $170,000 when making a determination as to whether it is covered by the definition of swap dealer.1349 We estimate that approximately 50 entities of this type would be sufficiently uncertain regarding the application of the definition that they would have to incur these costs. Thus, the total direct cost for all entities to determine the coverage of the definition of the term ‘‘swap dealer’’ would be approximately $20,000,000. As noted above, we estimate that approximately 450 entities (i.e., 250 with relatively low complexity, 150 with moderate complexity and 50 with high complexity) would be sufficiently uncertain about the application of the definition of the term ‘‘swap dealer’’ that they would incur costs in applying the definition. This estimate includes IDIs that apply the loan origination exclusion. It is important to emphasize that since there is no definitive publicly available information about how many entities are engaged in swap activities and how they use swaps in particular situations, it is impossible to be sure how many entities may be uncertain about whether the definition covers 1348 This estimate is based on the following staff requirements for this determination: 40 hours for a financial analyst at $161/hour, 10 hours of a financial manager at $325/hour, 5 hours of a controller or chief financial officer at $722/hour, 30 hours of a compliance attorney at $355/hour, 20 hours of a mid-level attorney at $608/hour, 15 hours of a senior attorney at $992/hour, and 5 hours of a chief compliance officer at $664/hour. 1349 This estimate is based on the following staff requirements for this determination: 120 hours for a financial analyst at $161/hour, 40 hours of a financial manager at $325/hour, 20 hours of a controller or chief financial officer at $722/hour, 80 hours of a compliance attorney at $355/hour, 60 hours of a mid-level attorney at $608/hour, 50 hours of a senior attorney at $992/hour, and 20 hours of a chief compliance officer at $664/hour. E:\FR\FM\23MYR2.SGM 23MYR2 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES2 them to the point that they would incur such costs. However, we believe that the number of such entities may be estimated based on certain assumptions as discussed below. In meetings with commenters since publication of the Proposing Release, the CFTC has discussed extensively the universe of potential entities that may be covered by the definition of the term ‘‘swap dealer’’ and gathered information on the swap market and its participants. In its FY 2012 budget drafted in February 2011, the CFTC estimated that 140 entities may be covered by the definition of ‘‘swap dealer,’’ 1350 and after receiving additional information the CFTC estimates that approximately 125 entities will be covered by the definitions of the terms ‘‘swap dealer’’ and ‘‘major swap participant.’’ 1351 With these assumptions in mind, we believe it is reasonable to estimate that for every entity covered by the definitions, there will be about four entities (i.e., approximately four times 120, or about 450) that are sufficiently uncertain about the coverage of the definitions that they would incur costs in applying the definitions. Our estimate that there would be about 450 such entities is also in line with the number of entities that were sufficiently interested in the Proposing Release that they submitted substantive comments to the CFTC. As noted above, we received about 300 substantive comment letters in response to the proposal. Of these, some reflected more than one letter from a single commenter, comments from persons who did not expect to be swap dealers, or comments from persons who were not uncertain about their status under the definition. On the other hand, several letters were from multiple commenters that submitted their comments jointly. Thus, we estimate that about 225 entities were sufficiently interested in the proposed rule further defining the term ‘‘swap dealer’’ that they submitted a substantive comment, and for each such entity there was another entity that would also be similarly uncertain about 1350 CFTC, President’s Budget and Performance Plan Fiscal Year 2012, p. 13–14 (Feb. 2011), available at https://www.cftc.gov/ucm/groups/ public/@newsroom/documents/file/ cftcbudget2012.pdf. The estimated 140 swap dealers includes ‘‘[a]pproximately 80 global and regional banks currently known to offer swaps in the United States;’’ ‘‘[a]pproximately 40 non-bank swap dealers currently offering commodity and other swaps;’’ and ‘‘[a]pproximately 20 new potential market makers that wish to become swap dealers.’’ Id. 1351 See CFTC, Registration of Swap Dealers and Major Swap Participants, 77 FR 2613, 2622 (Jan. 19, 2012). The number of persons covered by the definition of ‘‘major swap participant’’ is estimated to be quite small, at six or fewer. VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 the definition, which supports our estimate that 450 entities in total would incur costs in applying the definition. Regarding the determination of whether an entity is eligible for the de minimis exception from the definition of the term ‘‘swap dealer,’’ we note that only an entity that is engaged in some swap dealing activity would be required to make this determination, but it would be required to make the determination regardless of whether it is uncertain about whether its swap activities constitute dealing (e.g., it would incur costs even if there were no doubt that it is engaged in swap dealing). We also note that the number of entities that will apply the de minimis exception is expected to be significantly greater than the number of entities that are required to register as swap dealers. Again, we believe that the entities making this determination would have situations that are highly complex (we believe approximately 25 entities would fall in this category), moderately complex (approximately 200 entities) and of low complexity (approximately 400 entities).1352 The direct cost of making the determination for these entities would be approximately $42,000 in highly complex situations,1353 $15,000 in moderately complex situations 1354 and $8,000 in situations of low complexity.1355 The total direct costs for all entities would be approximately $7,300,000. 1352 The estimate of approximately 625 entities that will apply the de minimis exception is based on our assumption that significantly more (i.e., five times as many) entities will apply the exception as compared to the number of entities registered as swap dealers (which we assume to be approximately 120). This estimate is also in line with information provided by commenters that approximately 100 community and regional banks would potentially apply the de minimis exception (i.e., the estimate reflects 100 such banks along with 525 other entities that are involved in the swap markets to a similar extent). 1353 This estimate is based on the following staff requirements for this determination: 80 hours for a financial analyst at $161/hour, 20 hours of a financial manager at $325/hour, 10 hours of a controller or chief financial officer at $722/hour, 20 hours of a compliance attorney at $355/hour, 5 hours of a senior attorney at $992/hour, and 5 hours of a chief compliance officer at $664/hour. 1354 This estimate is based on the following staff requirements for this determination: 20 hours for a financial analyst at $161/hour, 5 hours of a financial manager at $325/hour, 5 hours of a controller or chief financial officer at $722/hour, 10 hours of a compliance attorney at $355/hour, 2 hours of a senior attorney at $992/hour, and 2 hours of a chief compliance officer at $664/hour. 1355 This estimate is based on the following staff requirements for this determination: 10 hours for a financial analyst at $161/hour, 5 hours of a financial manager at $325/hour, 2 hours of a controller or chief financial officer at $722/hour, 5 hours of a compliance attorney at $355/hour, 1 hour of a senior attorney at $992/hour, and 1 hour of a chief compliance officer at $664/hour. PO 00000 Frm 00119 Fmt 4701 Sfmt 4700 30713 Third, regarding the determination of whether an entity should apply for a limited purpose swap dealer registration, we believe that relatively few entities would make such an application but that the situation of each of these entities would be highly complex. We believe approximately 20 entities would fall in this category, and the direct cost of making the determination for each would be approximately $250,000,1356 resulting in a total direct cost of approximately $5,000,000. Thus, the total initial direct cost of applying the rules further defining the term ‘‘swap dealer’’ (including the de minimis exception and the possibility of limited purpose registration) for all entities would be approximately $32,000,000. In addition to these initial costs, we believe that entities would incur recurring costs in applying the definition. Regarding the application of the term ‘‘swap dealer,’’ we estimate that approximately 10 percent of the entities noted above would, each year, experience significant changes in their usage of swaps (such as beginning or ending a new line of business) that would require reconsideration of the application of the definition, which would result in costs amounting to onehalf of the direct cost of making the initial determination. Applying these factors to the costs noted above, the total recurring direct costs for all entities associated with the application of the term ‘‘swap dealer’’ are estimated to be approximately $1,000,000 per year. Regarding the de minimis exception, we estimate that entities would have to incur ongoing costs of review to determine whether the exception applies on a yearly basis, and that the annual cost of this review would amount to one-half of the direct cost of making the initial determination. That is, the total recurring direct costs for all entities associated with the de minimis exception are estimated to be approximately $3,700,000. Last, we estimate that entities that qualify for a limited purpose swap dealer registration would incur ongoing review costs amounting to one-quarter of the direct 1356 This estimate is based on the following staff requirements for this determination: 200 hours for a financial analyst at $161/hour, 120 hours of a financial manager at $325/hour, 40 hours of a controller or chief financial officer at $722/hour, 100 hours of a compliance attorney at $355/hour, 60 hours of a mid-level attorney at $608/hour, 50 hours of a senior attorney at $992/hour, and 40 hours of a chief compliance officer at $664/hour. The estimate of approximately 20 entities applying the limited designation reflects an estimate that about one in six swap dealers would apply the designation. E:\FR\FM\23MYR2.SGM 23MYR2 30714 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations cost of making the initial determination, or approximately $1,300,000 per year. Thus, the total recurring direct cost of applying the swap dealer definition (including the de minimis exception and the possibility of limited purpose registration) would be approximately $6,000,000. mstockstill on DSK4VPTVN1PROD with RULES2 5. Costs and Benefits of the Rules Further Defining ‘‘Major Swap Participant’’ This Adopting Release further defines a ‘‘major swap participant’’ by setting out quantitative thresholds against which a market participant can compare its swaps activities to determine whether it is encompassed by the definition. The rule requires potential major swap participants to analyze their swaps in detail to determine, for example, which of their swaps are subject to netting agreements or markto-market collateralization, and the amount of collateral posted with respect to the swaps. The rule includes a general, qualitative definition of the swaps that may be excluded from the calculation because they are used to ‘‘hedge or mitigate commercial risk.’’ Like the swap dealer definition, there is a voluntary process by which a person may request that the CFTC limit the major swap participant designation to certain categories of swaps. a. Background The definition set forth in CEA section 1a(33) provides that the term ‘‘major swap participant’’ means any person who is not a swap dealer and (i) maintains a substantial position in swaps for any of the major swap categories as determined by the CFTC; (ii) whose outstanding swaps create substantial counterparty exposure that could have serious adverse effects on the financial stability of the U.S. banking system or financial markets; or (iii) is a financial entity that is highly leveraged relative to the amount of capital it holds, is not subject to capital requirements established by an appropriate Federal banking agency, and maintains a substantial position in outstanding swaps in any major swap category as determined by the CFTC. In connection with the calculation of ‘‘substantial position’’ noted above, the statutory definition specifically excludes positions held for hedging or mitigating commercial risk, and positions maintained by any employee benefit plan as defined in sections 3(3) and (32) of ERISA for the primary purpose of hedging or mitigating any risk directly associated with the operation of the plan. The statutory definition also provides that major swap VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 participant designations may be limited in scope so that a person may be designated as a major swap participant in certain, but not all, swap categories. CEA section 1a(33)(D) excludes from the definition of the term ‘‘major swap participant’’ certain entities whose primary business is providing financing and who use derivatives for the purpose of hedging underlying commercial risks related to interest rate and foreign currency exposures, 90 percent or more of which arise from financing that facilitates the purchase or lease of products, 90 percent or more of which are manufactured by the parent company or another subsidiary of the parent company. There is no analogous statutory provision applicable to major security-based swap participants. As detailed in this Adopting Release, the definition of the term ‘‘major swap participant’’ focuses on the market impacts and risks associated with a person’s swap positions. This contrasts to the definition of the term ‘‘swap dealer,’’ which focuses on a person’s activities and accounts for the amount or significance of those activities only in the context of the de minimis exception. Persons that meet the major swap participant definition would, in large part, follow the same statutory requirements applicable to swap dealers.1357 In this manner, the DoddFrank Act regulates entities whose swap activities do not cause them to be swap dealers, but nonetheless could pose a high degree of risk to the U.S. financial system. This regulation of major swap participants is intended to facilitate financial stability by reducing risk, increasing transparency, and promoting market integrity. b. Costs of Applying the Rules Further Defining the Term ‘‘Major Swap Participant’’ The actual cost of applying the rule further defining the term ‘‘major swap participant’’ to determine if a person is covered by the definition will depend, in large part, on the nature of the person’s swap activities as well as the infrastructure such person already has in place for the analysis and reporting of its swap activities. Many persons will be clearly outside the definition (and a few persons may be clearly covered by the definition) and will incur little cost to confirm that status. However, it is reasonable to expect that a few persons that are not swap dealers but 1357 The Dodd-Frank Act provides for the registration and regulation of major swap participants under CEA section 4s. The particular requirements applicable to major swap participants will be established in separate rulemakings. See notes 1240 and 425, supra. PO 00000 Frm 00120 Fmt 4701 Sfmt 4700 nonetheless engage in significant swap activity will be required to incur costs to determine whether they are covered by the definition. The direct costs such a person would incur would result from the incremental expense of personnel with financial and accounting expertise who would be required to devote time to the review of the size and nature of the person’s swap positions to determine whether the person is covered by the definition. Moreover, there will also be technology and legal review costs related to the determination of whether a person is a major swap participant. As is the case for the definition of the term ‘‘swap dealer,’’ it is important to recognize that even in the absence of any rule further defining the term ‘‘major swap participant,’’ or regardless of the terms of the rule, entities would incur costs in interpreting the statutory definition to determine whether they are covered. Thus, at a minimum, a significant portion of the costs discussed below is attributable to the inclusion in the Dodd-Frank Act of a definition of the term ‘‘major swap participant’’ and not from any aspect of the final rules further defining that term. Indeed, the final rules provide benefits by mitigating these costs by providing guidance about the application of the statutory definitions in different situations. The amount of time and resources that must be expended by a person in order to determine whether it qualifies as a major swap participant may vary considerably depending on the complexity of such person’s operations. In addition, direct costs will vary depending on the determinations the person must make relating to the definition, including, but not limited to, whether it engages in swap activity near the thresholds for ‘‘substantial position’’ and ‘‘substantial counterparty exposure,’’ and whether it is subject to a ‘‘safe harbor’’ provision as set forth in the definition. The CFTC did not receive any comments quantifying the costs that a person may incur in applying any aspect of the definition of the term ‘‘major swap participant,’’ nor are we aware of any studies or surveys regarding this particular issue. Therefore, the CFTC staff has estimated, based on its experience, the amount of time that a person may require to determine whether it meets the definition. These estimations are for informational purposes and require the CFTC to consider the aforementioned highly uncertain criteria. The CFTC estimates that approximately 20 persons that are not swap dealers will initially be engaged in swap activity to such an extent that they E:\FR\FM\23MYR2.SGM 23MYR2 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES2 would be required to apply the calculations in the final rule in determining whether they are covered by the definition.1358 The direct cost of making such determination for each such person is estimated to be approximately $260,000,1359 resulting in an initial aggregate direct cost of approximately $5,200,000. We note that the relatively low estimate of only 20 persons that would be required to incur costs at this level, as compared to the many thousands of swap market participants, reflects the relatively high thresholds for major swap participant status. As noted above, the large majority of market participants will be able to readily conclude that they are not covered by the definition. In addition to these initial costs, we believe that approximately 20 entities would incur recurring direct costs in applying the definition of major swap participant on a daily basis, and such costs would amount to one-third of the 1358 As is the case with respect to the definition of the term ‘‘swap dealer,’’ we believe that the number of persons that may incur costs in reviewing their activities and the rules will be significantly greater than the number of entities that actually are covered by the definition and will be required to register as major swap participants. Similarly, since there is no definitive publicly available information about how many entities are engaged in swap activities and how they use swaps in particular situations, it is impossible to be sure how many entities may be uncertain about whether the definition covers them to the point that they would incur such costs. Our estimate that approximately 20 entities would be sufficiently uncertain about the application of the definition of the term ‘‘major swap participant’’ that they would incur costs in applying the definition is based on our assumption that about six entities would be covered by the definition, and that for each such entity there will be about four entities that will be uncertain about the coverage of the definition. See note 1351, supra. 1359 This estimate is based on the following staff requirements for this determination: 200 hours for a financial analyst at $161/hour, 80 hours for a programmer analyst at $196/hour; 120 hours of a financial manager at $325/hour, 40 hours of a controller or chief financial officer at $722/hour, 100 hours of a compliance attorney at $355/hour, 60 hours of a mid-level attorney at $608/hour, 50 hours of a senior attorney at $992/hour, and 40 hours of a chief compliance officer at $664/hour. The estimates of the hourly cost for these personnel are from SIFMA’s Management & Professional Earnings in the Securities Industry 2010, modified by CFTC staff to account for an 1800-hour work-year and multiplied by 5.35 to account for firm size, employee benefits, and overhead. As is the case for the application of the definition of the term ‘‘swap dealer,’’ we believe that that use of a higher multiplier here is appropriate because some persons may retain outside advisors to assist in making the determinations under the rules. These estimates are intended to reflect averages for compiling and analyzing the information necessary to apply the definition of the term ‘‘major swap participant.’’ We recognize that particular entities within each range of complexity may, based on their circumstances, incur costs substantially greater or less than the estimated averages. We round to two significant digits. VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 direct cost of making the initial determination. Thus, the total recurring direct costs for all entities associated with the application of the term ‘‘major swap participant’’ are estimated to be approximately $1,700,000 per year or approximately $83,000 per year for each person. Although the CFTC believes there will only be a limited number of persons that potentially may be major participants, we recognize the concerns raised by several commenters that major swap participant calculations will be conducted as part of the person’s overall compliance function even when there is not a significant likelihood that such person would be a major swap participant. As a result of the potential expense and effort that a person would be required to incur in connection with determining whether it meets the definition of major swap participant, the final rule includes three alternative ‘‘safe harbor’’ provisions.1360 These safe harbor provisions relieve persons that are clearly not major swap participants from incurring the expense of the calculations otherwise required under the final rule. To apply the safe harbor provisions of the rule, the CFTC estimates that a person would have to incur initial direct costs of approximately $2,900 to determine whether its swap positions are within the safe harbor.1361 In addition, a person would incur costs of reviewing its swap positions on a monthly basis to monitor whether the safe harbor continues to apply, at an annual cost equal to one-third of the direct cost of making the initial determination, or $960. Our assumption that approximately 1,200 entities would apply the safe harbor provisions of the rule yields an aggregate direct initial cost of approximately $3,500,000 and aggregate annual costs of approximately $1,200,000.1362 1360 See part IV.M, supra. estimate is based on the following staff requirements for this determination: 5 hours for a financial analyst at $161/hour, 2 hours for a financial manager at $325/hour, 1 hour for a comptroller or chief financial officer at $722/hour, 2 hours for a compliance attorney at $355/hour. 1362 Our estimate of the number of entities that will make the safe harbor calculation includes the following: one-half of the approximately 700 investment company sponsors that are active in the U.S. (see the 2011 Investment Company Factbook published by the ICI, page 14, available at https:// www.ici.org/pdf/2011_factbook.pdf), a similar number of entities (i.e., 350) that have large positions in swaps as part of other investment management activities, one half of the corporate entities in the ‘‘Fortune 500’’ (representing corporate entities that have large positions in swaps) and an additional 250 entities representing other holders of large positions in swaps. 1361 This PO 00000 Frm 00121 Fmt 4701 Sfmt 4700 30715 c. Major Swap Participant Thresholds The final rule adopts the general approach in the proposed rule of determining whether a person is a major swap participant by comparing the exposure resulting from a person’s swap positions to specific, quantitative thresholds. The proposed thresholds for substantial position were $3 billion in current uncollateralized exposure or $6 billion in current uncollateralized exposure plus potential future exposure for rate swaps, and $1 billion in current uncollateralized exposure or $2 billion in current uncollateralized exposure plus potential future exposure for each of the other categories of swaps. The proposed thresholds for substantial counterparty exposure are $5 billion in current uncollateralized exposure across all categories or $8 billion in current uncollateralized exposure plus potential future exposure across all categories.1363 However, there is a change for the weight in the PFE calculations from the proposal to the final rule of 0.2 to 0.1 for cleared swaps. Commenters generally did not oppose the proposed thresholds although several thought the thresholds should be raised.1364 Two commenters supported the adoption of the thresholds as proposed.1365 In addition, a few other commenters thought that the thresholds were set too high.1366 Other commenters suggested that the thresholds be raised to a level that reflects systemic risk without suggesting a specific numerical threshold.1367 One commenter, however, suggested that the threshold be increased to $10 billion.1368 Several commenters also said that the thresholds should be adjusted for inflation and other changes over time in the swap market.1369 As discussed in part IV.B.3.d., the CFTC is adopting the thresholds as proposed. We recognize that the level of the thresholds will have a significant effect on whether the rules further defining the term ‘‘major swap 1363 See parts IV.B.3.d. and IV.E.3. e.g., letters cited in notes 796 and 798, 1364 See, supra. 1365 See letters from Dominion Resources and Fidelity. 1366 See letters from AFR and Greenberger. 1367 See letters from BlackRock I, ISDA I, MFA I and WGCEF II. 1368 See letter from CCMR I. In addition, ACLI commented that thresholds for rate swaps should be increased to $4 billion for current uncollateralized exposure and $8 billion for current uncollateralized exposure plus potential future exposure, with corresponding increases to substantial counterparty exposure thresholds to $7 billion for current uncollateralized exposure and $14 billion for current uncollateralized exposure plus potential future exposure. See letter from ACLI. 1369 See letters from CDEU, COPE I, Fidelity, ISDA I, and MFA I. E:\FR\FM\23MYR2.SGM 23MYR2 mstockstill on DSK4VPTVN1PROD with RULES2 30716 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations participant’’ are applied in a manner that is more or less inclusive, and that in setting the thresholds it is possible that we may err on the side of over- or under-inclusion. As noted above in part V.C.2., if the rule were more inclusive, costs could arise when the persons that are classified as major swap participants incur compliance costs, while if the rule is less inclusive the benefits of regulating major swap participants (in terms of reduced risk, increased transparency and market integrity) could be reduced. We also recognize that a more inclusive rule could lead to costs if it causes persons to make changes to their use of swaps in order to avoid being covered by the rule. One commenter said that the CFTC should conduct an empirical analysis of the proposed thresholds and whether they are suitable for identifying persons whose swap positions entail the risks enumerated in the statutory definition of the term ‘‘major swap participant.’’ 1370 However, the CFTC believes it is not feasible to perform such an analysis because the comprehensive and detailed information about how very active swap market participants use swaps that it would require is not available. The CFTC believes that the threshold levels in the final rule are appropriate to effectively monitor and oversee entities that are systemically important or could significantly impact the U.S. financial system. The CFTC and SEC are consistent in their approach to thresholds. As more data regarding the use of swaps and the importance of very large swap positions in the swap markets become available, the CFTC may consider adjusting the thresholds. The final rules also provide for the measure of potential future exposure to be adjusted in the case of swap and security-based swap positions that are centrally cleared or that are subject to daily mark-to market margining. This is consistent with the purpose of the potential future exposure test, which is to account for the extent to which the current outward exposure of positions (though possibly low or even zero at the time of measurement) might grow to levels that can lead to high counterparty risk to counterparties or to the markets generally. The practice of the periodic exchange of mark-to-market margin between counterparties helps to mitigate the potential for large future increases in current exposure. Consistent with the proposal, the final rules reflect this ability to mitigate risk by providing that the potential future exposure associated with positions that 1370 See letter from WGCEF II. VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 are subject to daily mark-to-market margining will equal 0.2 times the amount that otherwise would be calculated. However, in response to commenters assertions about the riskmitigating effects of central clearing, and the additional level of rigor that clearing agencies may have with regards to the process and procedures for collecting daily margin, the final rules further provide that the potential future exposure associated with positions that are subject to central clearing will equal 0.1 (rather than the proposed 0.2) times the potential future exposure that would otherwise be calculated.1371 Although some commenters supported the complete exclusion of cleared positions from the potential future exposure analysis,1372 the CFTC recognizes that central clearing cannot reasonably be expected to entirely eliminate counterparty risk.1373 Accordingly, the CFTC concluded that the use of a 0.1 factor (in lieu of the proposed 0.2) is appropriate for cleared positions, reflecting the strong risk mitigation features associated with central clearing, particularly the procedures regarding the collection of daily margin and the use of counterparty risk limits, while recognizing the presence of some remaining counterparty risk. Moreover, although some commenters opposed any deduction from the 1371 See CFTC Regulation § 1.3(jjj)(3)(iii)(A); Exchange Act rule 3a67–3(c)(3)(i). The final rules further have been revised to clarify that the 0.1 factor applies to positions cleared by a registered clearing agency or by a clearing agency that has been exempted from registration. 1372 See, e.g., letters from MFA I and SIFMA AMG II. 1373 Central clearing helps to mitigate counterparty credit risk by improving risk management and, among other things, mutualizing the risk of counterparty failure. If multiple members of a central counterparty fail beyond the level to which such risk is managed, however, the central counterparty would also be at risk of failure. Cf. Basel Committee on Banking Supervision, Consultative Document, ‘‘Capitalisation of bank exposures to central counterparties,’’ Nov. 25, 2011 (available at: https://www.bis.org/publ/bcbs206.pdf) (proposing that the capital charge for trade exposures to a qualifying central counterparty should carry a low risk weight, reflecting the relatively low risk of default of the qualifying central counterparty). In addition, as the CFTC and SEC discussed in the Proposing Release, see 75 FR at 80192 n. 115, for example, central counterparties that clear credit default swaps do not necessarily become the counterparties of their members’ customers (although even absent direct privity those central counterparties benefit customers by providing for protection of collateral they post as margin, and by providing procedures for the portability of customer positions in the event of a member’s default). As a result, central clearing may not eliminate the counterparty risk that the customer poses to the member, although required mark-to-market margining should help control that risk, and central clearing would be expected to reduce the likelihood that an entity’s default would lead to broader market impacts. PO 00000 Frm 00122 Fmt 4701 Sfmt 4700 measure of potential future exposure for uncleared positions that are margined on a daily basis,1374 the CFTC believes that the risk-mitigating attributes of daily margining warrant an adjustment given that the goal of the potential future exposure test is to account for price movements over the remaining life of the contract.1375 The use of a 0.2 factor also reflects the CFTC’s expectation that the risk mitigation associated with uncleared but margined positions would be less than the risk mitigation associated with cleared positions. While higher or lower alternatives to the 0.1 and 0.2 factors may also be reasonable for positions that are cleared or margined on a daily basis, the CFTC believes that the factors of the final rules reasonably reflects the risk mitigating (but not risk eliminating) features of those practices. The final rules also retain and clarify provisions addressing when daily mark-to-market margining occurs for purposes of this discount.1376 d. Difficulty in Applying the Major Swap Participant Calculations While commenters generally acknowledged that the proposed quantitative threshold tests are objective, some said that the proposed tests are difficult to understand and 1374 See letter from Better Markets I; see also letter from AFR. 1375 The CFTC does not believe that it is appropriate to have this type of discount when mark-to-market margining is done less than daily, however. 1376 The CFTC recognizes that at times, market participants whose agreements provide for the daily exchange of variation margin in connection with swaps in practice may not exchange collateral daily, if the amounts at issue are relatively small (such through the use of collateral thresholds and minimum transfer amounts). We do not believe that such practices would be inconsistent with providing a discount for daily margining practices. The proposed rules sought to accommodate those practices by providing that positions would be considered to be subject to daily mark-to-market margining for purposes of the ‘‘uncollateralized outward exposure’’ plus ‘‘potential outward exposure’’ analysis, so long as the total of such thresholds, and the total of such minimum transfer amounts above $1 million are deemed to be ‘‘uncollateralized outward exposure’’ for those purposes. In light of commenter concerns, which indicated that the proposal was not fully clear about the mechanics and purpose of this approach, the relevant rule language has been revised to clarify that this attribution of thresholds and minimum transfer amounts is solely for the purpose of determining whether certain positions are subject to daily mark-to-market margining for purposes of the analysis. In addition, the final rules have been revised from the proposal to provide that the attribution of thresholds as ‘‘uncollateralized outward exposure’’ for these purposes will be reduced by initial margin posted, up to the amount of the threshold. See CFTC Regulation § 1.3(jjj)(iii)(B); Exchange Act rule 3a67–3(c)(3)(ii). E:\FR\FM\23MYR2.SGM 23MYR2 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations hard to apply.1377 Another commenter submitted that ‘‘[the CFTC] should solicit feedback from market participants prior to final rule given the complexity of tests and likely interpretive issues; proposed tests are highly technical, and more challenging to use than may appear at first glance; could also request volunteers to walkthrough the tests to ensure they actually function in practice.’’1378 Several commenters suggested means of reducing the costs of applying the proposed tests. Some commenters requested that the CFTC adopt a ‘‘safe harbor’’ provision in the final rules for swap users with positions that are substantially below the thresholds.1379 Another commenter opined that the rule should allow persons to rely on thirdparty service providers to conduct the required calculations.1380 In addition, a commenter said the rule should allow swap users to apply standard industry practices in valuing their positions.1381 We believe that the guidance in this Adopting Release reduces the costs of determining if a person is covered by the definition. For example, in response to commenters’ concerns we clarify that a person may determine the value of its exposure using industry standard practices.1382 Also, we believe that the daily calculation burdens associated with the proposed thresholds will be addressed by safe harbors that are available if a simplified calculation shows that a person’s exposure from its swap position is far below any threshold for any particular month. The final rule includes safe harbors to reduce unnecessary costs for entities that, because of compliance concerns, would engage in major swap participant calculations even though it would be very unlikely that the major swap participant thresholds would be met.1383 Also, the CFTC will permit third-party service providers to perform major swap participant calculations, although a person that may be a major swap participant is not relieved of potential liability for violations of the CEA if there is a calculation or other error by the third-party.1384 e. Exclusions for Particular Types of Entities Commenters said that exclusions from the major swap participant definition should be available for certain entities including insurance companies, registered investment companies, entities that maintain legacy portfolios of swaps, ERISA plans, and sovereign wealth funds.1385 Some commenters cited, as the underlying basis for excluding these entities, the existing regulatory regime to which these entities are subject and the potential for dual regulation if they were covered by the definition of the term ‘‘major swap participant.’’1386 One commenter asserted that a lack of clarity with respect to proposed exemptive relief will impose additional costs on market participants due to the uncertainty in determining major swap participant status.1387 Several commenters said that sovereign wealth funds should be excluded from the definition of major swap participant based on international principles of comity and sovereign immunity.1388 These commenters asserted that sovereign wealth funds are regulated in their home country and do not represent the type of counterparty risk contemplated by the Dodd-Frank Act. A commenter asserted that special purpose vehicles for structured finance or securitization should be exempted from the definition of major swap participant so as to not harm liquidity in asset securitizations.1389 That commenter based its recommendation on the understanding that special purpose vehicles have limited functionality and resources and would accordingly be unable to comply with the burden of regulation as a major swap participant.1390 The final rule does not have specific exclusions for certain types of entities. The CFTC believes that a more level playing field is desirable to ensure no 1384 See mstockstill on DSK4VPTVN1PROD with RULES2 1377 See, e.g., letters from Fidelity, Freddie Mac, ISDA I and SIFMA AMG II. 1378 See letter from WGCEF II at 11. 1379 See letters from AII, Vanguard and SIFMA AMG II. Another commenter submitted that swap dealers will require counterparties to run the major swap participant calculations in order to certify that they are not major swap participants, even in cases where it is readily evident that they are not major swap participants. See meeting with CalSTRS on April 15, 2011. 1380 See letter from ISDA I. 1381 See id. 1382 See part IV.B.3.b, supra. 1383 See part IV.M.2, supra. VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 part IV.B.3.e, supra. part IV.J.2, supra. 1386 See id. For example, commenters said that registered investment companies and corresponding registered investment advisers should be excluded from the definition of major swap participant because they are highly regulated by the SEC pursuant to the ICA and the Investment Advisers Act of 1940, and therefore major swap participant regulation would be duplicative. See joint letter from ICI and SIFMA AMG. 1387 See letter from MetLife. 1388 See letters from CIC and GIC and meeting with Weil. 1389 See letter from ISDA I. 1390 See id. 1385 See PO 00000 Frm 00123 Fmt 4701 Sfmt 4700 30717 particular type of entity gains an unfair competitive advantage in the market. The appropriate treatment of ‘‘legacy portfolios’’ (e.g., the monoline insurers or their special purpose vehicles) will be determined on a case-by-case basis by the CFTC. Legacy portfolio operators specifically commented that they are in ‘‘run-off’’/wind down mode, thereby undertaking no new swaps that would increase their risk, with an expectation to shut down or cease operations once their portfolio expires.1391 As a result, these commenters maintain that margin or capital requirements would likely lead to their insolvency because they do not have the assets to satisfy the proposed requirements. The CFTC notes that many of the compliance obligations imposed by the Dodd-Frank Act and/or the business conduct rules promulgated thereunder will not apply to operators of legacy portfolios because such obligations will not be applicable to swaps executed prior to the enactment of the Dodd-Frank Act such as the swaps in legacy portfolios.1392 Consequently, the CFTC expects legacy portfolio operators’ primary compliance obligation to be related to reporting and risk management. f. CEA Section 15(a) Discussion The costs and benefits of the rule further defining the term ‘‘major swap participant’’ are evaluated in light of the section 15(a) five broad areas of market and public concern. Protection of market participants and the public. The rule helps parties to identify when they have substantial positions or substantial counterparty exposures in swap markets that would cause them to be covered by the definition of major swap participant. Under the Dodd-Frank Act, major swap participants are subject to regulations enacted to protect market participants and the public. The costs and benefits of the statutory and regulatory requirements for major swap participants are addressed in the various rulemakings in which they are promulgated.1393 1391 See letters from Athilon, Berkshire Hathaway, ISDA I, MBIA and Newedge. As noted in part IV.J.3.a, supra, the CFTC understands that legacy portfolios are no longer entering into new transactions other than to novate, amend and hedge their existing positions. In connection with any potential exclusion, however, legacy portfolios would still be required to report to SDRs information about their swap transactions and positions. See letters from BlackRock I and Canadian MAVs. 1392 See CFTC, Swap Data Recordkeeping and Reporting Requirements: Pre-Enactment and Transition Swaps; Final Rule, 77 FR 2136 (Jan. 13, 2012). 1393 See part VII.C.2, supra. E:\FR\FM\23MYR2.SGM 23MYR2 30718 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations Efficiency, competitiveness, and financial integrity of markets. To date, potential major swap participants have engaged in swaps in an off-exchange marketplace that has been largely unregulated. Once the regulations required under the Dodd-Frank Act are adopted and effective, major swap participants will be subject to CFTC oversight and comprehensive regulation. The CFTC believes these regulations will improve the financial integrity of swap markets and the U.S. financial system generally. Since the number of persons that are expected to be major swap participants is small, the CFTC believes that these regulations will not have a significant effect on the efficiency or competitiveness of the markets. Price discovery. The CFTC does not perceive any direct effect on price discovery from the rule further defining the term ‘‘major swap participant.’’ Sound risk management practices. The level of the major swap participant thresholds may discourage persons from engaging in swap activities that might cause them to exceed the major swap participant thresholds. This reduction in the use of swaps could be costly if other alternatives are not as suitable for the underlying risks (e.g., futures might have different contract sizes or expiration, and forward contracts introduce physical risks not present in cash settled transactions). The CFTC notes that this concern is mitigated by the relatively high threshold levels for major swap participant status. Other public interest considerations. The specific quantitative thresholds in the rule set forth definitive tests for determining if a person is covered by the definition of the term ‘‘major swap participant.’’ This specific, quantitative threshold serves the public interest by promoting efficient application of the rule. Also, as noted above, major swap participants will be subject to CFTC oversight and comprehensive regulation, which we believe will improve the financial integrity of swap markets and the U.S. financial system generally. 6. Costs and Benefits of the Rules Relating to the Definition of ‘‘Eligible Contract Participant’’ mstockstill on DSK4VPTVN1PROD with RULES2 a. Background The ECP regulations and interpretation fall within the following six categories: • CFTC Regulation § 1.3(m)(5)(i) prevents a commodity pool (i) in which any of the pool’s direct participants is not an ECP in its own right and (ii) that directly enters into retail forex VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 transactions from being an ECP under CEA section 1a(18)(A)(iv) or (v), for purposes of retail forex transactions only. CFTC Regulation § 1.3(m)(5)(ii) provides that the CFTC would look through a commodity pool participant that directly participates in a transaction-level commodity pool only if such direct commodity pool participant, any entity holding an interest in such direct commodity pool participant, or any entity in which such direct commodity pool participant holds an interest were structured to evade subtitle A of Title VII of the Dodd-Frank Act by permitting persons that are not ECPs to participate in retail forex transactions. The look-through in CFTC Regulation § 1.3(m)(5)(ii) does not apply to a non-commodity pool participant in a commodity pool. • CFTC Regulation § 1.3(m)(6) excludes a commodity pool from ECP status if it does not have total assets exceeding $5,000,000 or is not operated by a person described in CEA section 1a(18)(A)(iv)(II).1394 • CFTC Regulations § 1.3(m)(1)–(4) define major swap participants, swap dealers, major security-based swap participants and security-based swap dealers, respectively, as ECPs. • CFTC Regulation § 1.3(m)(7) permits an otherwise non-ECP to qualify as an ECP, with respect to certain swaps, based on the collective net worth of its owners, subject to several conditions, including that the owners are ECPs. • CFTC Regulation § 1.3(m)(8) permits a Forex Pool to qualify as an ECP notwithstanding that it has one or more direct participants that are not ECPs if the Forex Pool (a) is not formed for the purpose of evading regulation under CEA sections 2(c)(2)(B) or (C) or related rules, regulations or orders, (b) has total assets exceeding $10 million and (c) is formed and operated by a registered CPO or by a CPO who is exempt from registration as such pursuant to CFTC Regulation § 4.13(a)(3). • Finally, the Commissions have provided an interpretation to address an incorrect statutory cross-reference preventing certain government entities from qualifying as ECPs under CEA section 1a(18)(A)(vii).1395 b. Summary of Comments Commenters stated that commodity pools will incur costs to comply with statutory and regulatory requirements made applicable as a result of the Commissions’ narrowing of the ECP 1394 7 1395 7 PO 00000 U.S.C. 1a(18)(A)(iv)(II). U.S.C. 1a(18)(A)(vii). Frm 00124 Fmt 4701 Sfmt 4700 definition.1396 Commenters argued that to apply the look-through at any investment level would be unnecessarily burdensome and disruptive to how commodity pools are structured, with resulting costs.1397 One commenter advised that, if a trading advisor cannot be sure that all pool participants are ECPs, then it must be cautious and either register as a CPO or decide not to engage in Retail Forex Transactions on behalf of its advised pools.1398 Another commenter stated that while many existing commodity pools have already obtained accredited investor and QEP representations from participants, virtually none currently obtain ECP representations from their investors.1399 This commenter argued that obtaining such a representation would impose an operational burden and additional costs, as well as require commodity pools to redeem non-ECPs. The commenter further points out that, given the estimated $1.9 trillion of assets invested in hedge funds, the portion of those assets that use OTC forex is likely to be substantial, and therefore substantial time and expense would be expended in determining eligibility requirements for the thousands of investors in funds that use OTC forex.1400 Commenters explained that there are costs to losing ECP status and that the enumerated counterparty list is unclear and subject to uncertainty because it relies on other regulators.1401 One commenter argues that funds would incur compliance and transaction costs if categorized as non-ECPs because they would have to enter into forex transactions through a DCM and their operators would have to register as CPOs.1402 That commenter also states that the markets for exchange-traded futures are less liquid than OTC forex markets, and that posting initial margin on a DCM is costly, since it cannot be used to invest in riskier assets and a FOF would have to invest in liquid and low risk (and, commensurately, lower yielding) assets necessary to post variation margin. As another commenter points out, the resulting increased expenses from the requirement to trade on a DCM and comply with retail forex rules may result in higher expenses for hedge and private equity funds, which 1396 See letters from AIMA I, Akin Gump, Sidley, and Willkie Farr. 1397 See id. 1398 See letter from AIMA I. 1399 See letter from Sidley. 1400 See id. 1401 See letters from AIMA I, Akin Gump, and Sidley. 1402 See letter from Sidley. E:\FR\FM\23MYR2.SGM 23MYR2 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES2 they would likely pass along to their investors.1403 A commenter asserted that the characteristics necessary to avoid nonECP status may prevent free investment and could reduce liquidity and create volatility in these markets.1404 With respect to CFTC Regulation § 1.3(m)(6), a commenter expressed concerns with the expected costs associated with the proposal that commodity pools that do not qualify as ECPs under clause (A)(iv) should not be able to qualify under clause (A)(v), stating that the proposal would be difficult to comply with and would adversely impact investment.1405 Two commenters agreed that the proposed addition of swap dealers, security-based swap dealers, major swap participants, and major security-based swap participants to the ECP definition provided a benefit with little or no costs.1406 No commenter objected. With respect to CFTC Regulation § 1.3(m)(7), commenters said that nonECPs have entered into swaps in reliance on the Swap Policy Statement.1407 Commenters emphasized the importance of the Swap Policy Statement to pass-through entities used by farmers,1408 operating companies 1409 and commercial property developers,1410 noting that such entities may not meet the ECP criteria. According to these commenters, these 1403 See letter for Akin Gump. This commenter also said that these increased expenses could cause funds to terminate their foreign currency hedging, which would increase their investors’ currency risk, causing higher volatility in the investment industry. 1404 See letter from AIMA I. See generally part III.B.3, supra. 1405 See letter from AIMA I. 1406 See letters from Greenberger and Sidley. 1407 See letters from B&F I, CDEU and Capstar. One element of the Swap Policy Statement required that the swap be entered into in connection with each swap counterparty’s line of business. See Swap Policy Statement at 30697. The CFTC stated when issuing the Swap Policy Statement that it ‘‘reflects the [CFTC]’s view that at this time most swap transactions, although possessing elements of futures or options contracts, are not appropriately regulated as such under the [CEA] and [CFTC] regulations.’’ Swap Policy Statement at 30694. 1408 See, e.g., letter from Rabobank, New York Branch (relating that ‘‘[f]or a variety of estate planning and regulatory purposes, farmers commonly hold their ownership interests in land, buildings and farm equipment indirectly, through a network of legal entities’’). 1409 See, e.g., letter from Fifth Third Bank and Union Bank, N.A. (advising that ‘‘[i]t is common for an operating business to organize a separate limited liability company (for tax and legal reasons) to acquire * * * assets * * * and to lease these assets to the operating company[, which] becomes the borrow[er] * * * for the loan used to acquire those assets’’ and that ‘‘[t]he limited liability company often does not maintain sufficient capital to qualify as an ECP’’). 1410 See, e.g., letters from BB&T I, B&F I and Midsize Banks. VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 pass-through entities often are small and medium-sized businesses that enter into interest rate swaps with lending financial institutions in reliance on the Swap Policy Statement.1411 The commenters explained that the loans usually are guaranteed by the principals of the entity entering into the swap, and that the borrower would qualify as an ECP if structured as a single-level corporate entity or sole proprietorship.1412 Commenters said that if these non-ECP entities were limited to swaps that are available on or subject to the rules of a DCM, many regional bank borrowers would lose the ability to use swaps, real estate companies would have less flexibility in risk management, and smaller lenders would be at a competitive disadvantage.1413 Another commenter said that Dodd-Frank Act provisions such as the end-user clearing exception indicate that Congress intended to preserve the availability of swaps used for managing risks rather than for investment or speculation.1414 To mitigate the impact of restricting non-ECPs to swaps that are available on or subject to the rules of DCMs, some commenters said that an entity should be able to qualify as an ECP based on the financial qualifications of related entities, so long as various conditions proposed by the commenters are satisfied. Some commenters said that an entity should be eligible to be an ECP if its swap obligations are guaranteed by an ECP,1415 or if its controlling entity qualifies as an ECP under clause (A)(v) of the statutory definition.1416 Another commenter suggested revisions to the ECP definition that included looking to the ECP status or sophistication of the majority owner of an entity in determining if the entity itself is an ECP.1417 Other commenters suggested other provisions to allow non-ECPs to enter into swaps other than on or subject to the rules of a DCM, so long as the non-ECP meets various 1411 See letters from BB&T I and B&F I. Commenters said that these businesses may intentionally maintain less than $1 million in equity primarily for tax and legal reasons. See letters from Capital One and Columbia State Bank (stating that over 65% of its borrowers are structured as limited liability companies or S corporations and intentionally maintain less than $1 million in equity at the entity entering into the swap). 1412 See letter from Columbia State Bank. See also letter from BB&T I. 1413 See letters from BB&T I, Capital One, Capstar, Columbia State Bank, Midsize Banks, NAREIT and Wells Fargo II. 1414 See letter from FSR I. 1415 See letters from BB&T I, Midsize Banks and Wells Fargo II. 1416 See letters from CDEU and Regional Banks. 1417 See letter from NAREIT. PO 00000 Frm 00125 Fmt 4701 Sfmt 4700 30719 conditions indicating that the swap is used in connection with its line of business.1418 With respect to CFTC Regulation § 1.3(m)(8), several commenters asserted that many Forex Pools are operated by sophisticated, professional managers that do not need the protections of a retail forex regime designed to protect non-ECPs that are engaging in retail forex transactions.1419 More specifically, some commenters, based on CFTC enforcement actions involving Forex Pools, suggested that commodity pools of a sufficient size, and/or operated by a registered or exempt CPO, do not pose the risks of fraud and abuse of non-ECP customers that the statutory lookthrough provision is intended to address.1420 As a result, commenters suggested that the look-through provision should not apply in determining ECP status of commodity pools that meet certain conditions. For example, commenters suggested that the look-through not be applied to a commodity pool with $10 million in total assets if other factors were present—e.g., not structured to evade,1421 subject to regulation under the CEA 1422 and/or operation by a registered CPO.1423 Another commenter suggested requiring the total assets or minimum initial investment of a Forex Pool to be sufficiently large that, in general, only legitimate pools would exceed such thresholds.1424 This commenter suggested a total asset threshold of $50 million.1425 Separately, one commenter also claimed that the statutory look-through, if strictly implemented, might inappropriately preclude Forex Pools and their CPOs, many of whom are registered, from engaging in retail forex transactions with swap dealers because swap dealers are not Enumerated Counterparties (and some swap dealers also may not be Enumerated Counterparties in a different capacity, such as being a U.S. financial institution).1426 This commenter stated that such a result could reduce close out netting opportunities in the event of the insolvency of a counterparty. Finally, to reduce the adverse effects on government entities that may need to qualify as ECPs based on their swap 1418 See letters from APGA, Capital One and Gavilon dated October 28, 2010. 1419 See letters from Millburn and Sidley. 1420 See letters from GXFD I and Sidley. 1421 See letter from GFXD II. 1422 See letters from GFXD II and Skadden. 1423 See meeting with SIFMA on January 20, 2012. 1424 See letter from Sidley. 1425 See id. 1426 See letter from GFXD I. E:\FR\FM\23MYR2.SGM 23MYR2 30720 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations counterparties but that would be foreclosed from doing so due to an erroneous reference in the definition of ECP, a commenter requested the correction of that erroneous reference.1427 c. Response to Comments and Consideration of Costs and Benefits in the Final Rule mstockstill on DSK4VPTVN1PROD with RULES2 CFTC Regulation § 1.3(m)(5)(i) reduces the number of pools that need to determine the ECP status of their natural person participants, and thus reduces related costs, because it limits, absent evasion, the pools the CFTC considers for look-through purposes to transaction-level retail forex pools. The guidance the Commissions provide in the preamble also reduces the scope of the potential look-through, with attendant cost-reductions, by stating expressly that a Retail Forex Pool using retail forex transactions solely to hedge or mitigate currency risk would not be considered structured to evade. Thus, such hedging or mitigation would not be the basis of a look-through. In particular, because, according to a commenter, the typical FOF uses retail forex transactions solely to hedge currency risk related to fluctuations in the exchange rate between non-U.S. dollar subscription currencies and the U.S. dollar, most, if not all, FOFs would not be covered by the look-through. To the extent other commodity pools use retail forex transactions solely to hedge or mitigate their currency risk, such pools also would not be subject to the CFTC Regulation § 1.3(m)(5)(ii) lookthrough provision. Because Regulation § 1.3(m)(5)(ii) provides a look through only in cases of evasion and the Commissions’ guidance narrows considerably the scope of what might otherwise be considered evasion, the CFTC expects the CPO of the typical pool to be able to determine at little or no cost the ECP status of their direct participant commodity pools; such status will be based on CEA section 1a(18)(iv), an analysis with which such CPOs are familiar.1428 While the CFTC has provided guidance to reduce the costs of applying the rule, it estimates that each affected CPO may have to spend between 5 and 20 hours of legal time, representing a 1427 See letter from Wells Fargo I. the Commissions are adding additional detail explaining the scope of CEA section 1a(18)(A)(iv)(II), the Commissions also provide guidance on that explanation. As a result, the CFTC does not believe that the upfront costs of determining ECP status under CEA section 1a(18)(A)(iv) will significantly increase. 1428 While VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 cost between $1,800 and $7,100,1429 initially to determine the ECP status of the pools that they operate, and up to 5 hours ($1,800) of additional legal time to determine such status upon each change to the fund’s structure, operating guidelines, etc. that might implicate ECP status. Commenters noted that drafting ECP representations and contacting existing participants are part of the costs of determining ECP status. While the CFTC acknowledges such costs, CFTC Regulation § 1.3(m)(5) also provides investor protection benefits to non-ECP participants in pools that are not ECPs by requiring such pools to enter into retail forex transactions with an Enumerated Counterparty. This provides non-ECP participants in such pools the protections of the retail forex regime imposed by such counterparty’s federal regulator. The CFTC also notes that the number of categories of enumerated counterparties available as counterparties to non-ECP commodity pools has increased since the Commissions proposed the regulations, because other regulators have finalized their retail forex regimes, as discussed in greater detail above. While trading with Enumerated Counterparties will entail doing so pursuant to the retail forex regulations of the relevant federal regulator, such regulations will apply to the counterparties, not the CPO. While CPOs of Retail Forex Pools generally must register as such with the CFTC, to the extent an exemption from registration is available under the CFTC’s rules, such CPOs need not register as a result of their retail forex transactions, further reducing the potential costs of Regulations §§ 1.3(m)(5)(i) and (ii). Further, commodity pools will not incur any costs to change counterparties (with the accompanying costs of, for example, putting in place new trading documentation) to the extent they already trade with Enumerated Counterparties. Commenters noted that non-ECP pools would incur costs to negotiate new trading documentation with Enumerated Counterparties to the extent that such pools do not currently 1429 The CFTC computed these totals by assuming from 5 to 20 hours of legal review by a compliance attorney at $355/hour based on the 2010 SIFMA survey. See SIFMA, Report on Management and Professional Earnings in the Securities Industry— 2010. If we assume that 5,000 potential commodity pools need to make this determination and round to two significant digits, this results in a total approximate cost of $8.9 million to $36 million. As is the case for the application of the definitions of the terms ‘‘swap dealer’’ and ‘‘major swap participant,’’ these costs reflect a higher multiplier because some persons may retain outside advisors to assist in making the determinations under the rules. PO 00000 Frm 00126 Fmt 4701 Sfmt 4700 enter into retail forex transactions with Enumerated Counterparties and wish to continue to engage in retail forex transactions other than on or subject to the rules of a DCM. However, Regulation § 1.3(m)(5) also provides investor protection benefits to non-ECP participants in pools that enter into retail forex transactions by requiring such pools to trade with Enumerated Counterparties and to be operated by registered CPOs, absent an applicable exemption. To the extent that a commodity pool is precluded by CFTC Regulation § 1.3(m)(6) from achieving ECP status based on prong (A)(v) of the ECP definition, the pool will be limited to trading swaps, if at all, on or subject to the rules of a DCM. This could result in costs to affected commodity pools, including margin, the costs of establishing relationships with future commission merchants (e.g., reviewing new account opening documentation) and opportunity costs from losing the ability to trade swaps customized to pools’ needs. Preventing commodity pools that do not qualify under clause (A)(iv) from qualifying pursuant to clause (v), however, closes a loophole that would allow smaller commodity pools that are not able to satisfy the requirements of clause (A)(iv) of the ECP definition to qualify as ECPs. Moreover, by providing additional clarification in the preamble regarding the meaning of CEA section 1a(18)(A)(iv)(II), the Commissions substantially reduced the potential number of commodity pools affected by CFTC Regulation § 1.3(m)(6). CFTC Regulations §§ 1.3(m)(1)–(4) define major swap participants, swap dealers, major security-based swap participants and security-based swap dealers, respectively, as ECPs. Stating explicitly in regulations that these entities are ECPs avoids the potentially anomalous result of such entities, which are some of the largest and/or most active swap market participants, not being ECPs and is in line with expectations in the market that these entities may engage in a full range of swap and security-based swap activities. The CFTC believes that these regulations will not result in any significant economic costs or benefits. The CFTC is persuaded by commenters that allowing participants to continue to rely on the line of business element of the Swaps Policy Statement will mitigate unnecessary costs from the regulation but is adding various conditions to retain adequate protection for market participants and the public. As noted above, CFTC Regulation § 1.3(m)(7) permits an entity, E:\FR\FM\23MYR2.SGM 23MYR2 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES2 in determining its net worth for purposes of subclause (A)(v)(III) of the ECP definition,1430 to include the net worth of its owners, solely for purposes of determining its ECP status for swaps used to hedge or mitigate commercial risk, provided that all of its owners are themselves ECPs (disregarding shell companies, as defined above). Under CFTC Regulation § 1.3(m)(7) as adopted, an entity seeking to qualify under subclause (A)(v)(III) of the ECP definition in order to enter into a swap used to hedge or mitigate commercial risk is permitted to count the net worth of its owners in determining its own net worth, so long as all its owners are ECPs. Accordingly, CFTC Regulation § 1.3(m)(7) will allow qualified participants the flexibility to enter into customized swaps. By limiting the line of business ECP prong to entities owned solely by ECPs, the CFTC is preserving the intent behind the ECP requirement, which is to limit the availability of customized swaps to market participants of sufficient financial sophistication and with sufficient assets or net worth to assess, appreciate and bear the implications and risks of swap transactions. Although commenters proposed various solutions to address the loss of the Swap Policy Statement, the CFTC believes the approach adopted is the best approach; it substantively preserves the ECP requirement and protects the real parties in interest (i.e., the owners). Although banks and nonECP borrowers might be able to restructure or more highly capitalize borrowing entities or borrow at a higher level in the ownership structure, this regulation will allow banks and qualified businesses to continue to conduct their loan arrangements as usual without incurring the costs, which could include undesirable tax treatment, of such operational changes. Further, because commenters focused on swap related risks, the Commissions limited this regulation’s application narrowly, i.e., it does not apply for purposes of determining ECP status for: swaps not meeting the conditions set forth in Regulation § 1.3(m)(7); security-based swaps; security-based swap agreements; mixed swaps; or agreements, contracts or transactions that are not swaps (regardless of the purpose for which they are used). CFTC Regulation § 1.3(m)(8) permits a Forex Pool to qualify as an ECP notwithstanding that it has one or more direct participants that are not ECPs if the Forex Pool (a) is not formed for the purpose of evading regulation under CEA sections 2(c)(2)(B) or (C) or related rules, regulations or orders, (b) has total assets exceeding $10 million and (c) is formed and operated by a registered CPO or by a CPO who is exempt from registration as such pursuant to CFTC Regulation § 4.13(a)(3). The data presented by commenters, discussed above, demonstrate that registered CPOs 1431 of commodity pools over a certain size ($10 million in total assets) historically have engaged in retail forex misconduct to a much less significant degree than other CPOs. Only one of the 45 unique cases presented by commenters involved a pool with more than $10 million in total assets and a registered CPO. Only two of those cases involved a pool operated by CPOs exempt from registration: in both of those cases, however, the CPO raised less than $10 million.1432 The CFTC also recognizes that subjecting such commodity pools to the statutory lookthrough provision to protect non-ECP customers from fraud and abuse would cause them to incur higher costs (e.g., CPO compliance costs for those CPOs required to register as such, and redocumenting trading relationships with new counterparties who are Enumerated Counterparties), for intangible pool participant protections. To further protect pool participants, the Commissions added a requirement that, to be an ECP under the line of business prong, the Forex Pool must not be formed for the purpose of evading CFTC regulation of Retail Forex Pools and retail forex transactions under CEA Section 2(c)(2)(B) or (C). Accordingly, the Commissions have tailored CFTC Regulation § 1.3(m)(8) in a manner they believe preserves its ability to effectively protect market participants and the public, while avoiding significant costs. As noted above, CEA section 1a(18)(A)(vii)(cc) contains a statutory cross-reference rendered incorrect due to a legislative drafting oversight. 1430 CEA section 1a(18)(A)(v)(III) provides that ‘‘a corporation, partnership, proprietorship, organization, trust, or other entity * * * that (aa) has a net worth exceeding $1,000,000; and (bb) enters into an agreement, contract, or transaction in connection with the conduct of the entity’s business or to manage the risk associated with an asset or liability owned or incurred or reasonably likely to be owned or incurred by the entity in the conduct of the entity’s business’’ is an ECP. 7 U.S.C. 1a(18)(A)(v)(III). 1431 CFTC Regulation § 1.3(m)(8) as adopted requires that the CPO of the Forex Pool be registered as a CPO with the CFTC. The Commissions believe that this condition is appropriate because it will ensure that the NFA oversees compliance by those CPOs relying on this new regulation. 1432 In addition, one of those CPOs relied on the CFTC Regulation § 4.13(a)(4) CPO registration exemption. As discussed above, the CFTC has withdrawn that exemption. VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 PO 00000 Frm 00127 Fmt 4701 Sfmt 4700 30721 Failing to address such error would inappropriately deprive such entities of ECP status, imposing undue costs (e.g., the opportunity costs of being unable to execute a desired hedge or trading strategy using standardized exchangetraded swaps) on such entities. Allowing a government entity the ability to qualify as an ECP based on its counterparty’s status will provide, at little or no cost, the benefit of effectuating Congressional intent that government entities satisfying the conditions of CEA section 1a(18)(A)(vii)(cc) be ECPs. Therefore, the CFTC included in the preamble an interpretation treating as an ECP government entities satisfying the conditions of CEA section 1a(18)(A)(vii)(cc) as if such section incorporated the correct cross-reference. The CFTC believes that correcting this incorrect cross-reference will not result in any significant economic costs or benefits. d. CEA Section 15(a) Discussion Protection of market participants and the public. Congress determined to protect retail foreign exchange investors from fraudsters by amending the ECP definition to require a pool’s participants to qualify as ECPs for the pool to be an ECP under subsection (A)(iv).1433 As discussed above, this protection, as implemented by CFTC Regulation § 1.3(m)(5) may raise the costs of legitimate foreign exchange transactions. To mitigate these potential increased costs, CFTC Regulations § 1.3(m)(5)(i) limits the look-through to the level of the commodity pool structure that engages in retail forex transactions, subject to CFTC Regulation § 1.3(m)(5)(ii). This limitation provides that, if any level of the pool has been structured to evade, the CFTC would look through the transaction-level commodity pool’s direct commodity pool participants indefinitely until reaching non-commodity pool participants. CFTC Regulation § 1.3(m)(5), therefore, protects non-ECP members of the public in appropriate instances. By limiting the line of business ECP prong to entities owned solely by ECPs, the CFTC is preserving the intent behind the ECP requirement, which is to limit the availability of customized swaps to market participants of sufficient financial sophistication to assess and appreciate the risk and implications of the transactions. Although commenters proposed various solutions to address the loss of the Swap Policy Statement, the CFTC believes the 1433 Accord E:\FR\FM\23MYR2.SGM letter from AIMA I. 23MYR2 30722 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES2 approach adopted is the best approach because it preserves the substance of the ECP requirement and protects the real parties in interest (i.e., the owners). Because registered CPOs,1434 and CPOs exempt from registration, who operate commodity pools over a certain size ($10 million in total assets) historically have engaged in retail forex misconduct to a much less significant degree than CPOs of commodity pools below that threshold, the CFTC believes that imposing this size threshold requirement as a condition of ECP status pursuant to Regulation § 1.3(m)(8) provides some protection to pool participants. The additional requirement that to be an ECP under the line of business prong the Forex Pool must not be formed for the purpose of evading CFTC regulation of Retail Forex Pools and retail forex transactions under CEA Section 2(c)(2)(B) or (C) will further protect pool participants. Efficiency, competitiveness, and the financial integrity of the market. With respect to CFTC Regulation §§ 1.3(m)(5) and (6), commodity pools that do not qualify as ECPs may have to use products listed on or subject to the rules of a DCM that might not precisely (or at all) match such parties’ needs. This may reduce or eliminate a commodity pool’s ability to engage in some transactions, but these regulations also seek to prevent unsophisticated parties from entering into certain transactions to prevent repeated abuses and protect members of the public. We believe CFTC Regulations §§ 1.3(m)(1)–(8) do not significantly impact competitiveness or the financial integrity of markets. Price discovery. CFTC Regulations §§ 1.3(m)(1)–(8) only clarify the status of entities. They do not affect price discovery. Sound risk management practices. CFTC Regulations §§ 1.3(m)(5) and (6) may restrict investment opportunities for certain non-ECPs that might have otherwise qualified as ECPs.1435 This may discourage the use of some sound risk management practices and/or investment strategies. For instance, it may become more expensive for CPOs operating non-ECP pools to use such practices and/or strategies if such pools must enter into swaps on or subject to the rules of a DCM or come into 1434 CFTC Regulation § 1.3(m)(8) as adopted requires that the CPO of the Forex Pool be registered as a CPO with the CFTC. This condition is appropriate because it will ensure that the NFA oversees compliance by those CPOs relying on this new regulation. 1435 CFTC Regulations § 1.3(m)(1)–(4) and the interpretive guidance regarding certain governmental ECPs have the opposite effect, making investment opportunities available to certain ECPs that might otherwise not have qualified as ECPs. VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 compliance with a retail forex regime or choose to redeem non-ECPs to avoid such results. On the other hand, CPOs may not incur the increased expense of such sound risk management practices and/or investment strategies if they are able to pass such costs on to the participants in the pools. Also, with respect to swaps, pools that are not ECPs due to CFTC Regulation § 1.3(m)(6) can enter swaps on or subject to the rules of a DCM to the extent an appropriate swap is listed by such DCM. In contrast, CFTC Regulations §§ 1.3(m)(7) and (8) allow qualified participants to engage in swaps that are not on a DCM. This gives qualified participants more choices for their hedges, and may provide an opportunity for better risk management. Other public interest considerations. CFTC Regulations §§ 1.3(m)(1)–(4) state that major swap participants, swap dealers, major security-based swap participants, and security-based swap dealers, respectively, are ECPs. The interpretive guidance regarding certain governmental ECPs remedies an incorrect statutory cross-reference with respect to the ability of a subset of governmental entities to qualify as ECPs under CEA section 1a(18)(A)(vii).1436 VIII. Administrative Law Matters— Exchange Act Revisions (Definitions of ‘‘Security-Based Swap Dealer’’ and ‘‘Major Security-Based Swap Participant’’) A. Economic Analysis 1. Overview The SEC is sensitive to the costs and benefits of our rules. Some of these costs and benefits stem from statutory mandates, while others are affected by the discretion we exercise in implementing the mandates. We have requested comment on all aspects of the costs and benefits of the proposal, including any effect our proposed rules may have on efficiency, competition, and capital formation. In considering the economic consequences of these final rules, moreover, we have been mindful of the link between the scope of the persons who are deemed to be dealers or major participants pursuant to these rules and the costs and benefits associated with the regulatory requirements that are applicable to dealers and major participants, as well as the direct assessment costs (as defined below) these rules will impose on certain market participants. As the SEC noted in the Proposing Release, the definitions of ‘‘securitybased swap dealer’’ and ‘‘major security1436 7 PO 00000 U.S.C. 1a(18)(A)(vii). Frm 00128 Fmt 4701 Sfmt 4700 based swap participant’’ implicate two categories of potential costs. First, there are costs that arise from the regulatory requirements that will apply to those types of entities (e.g., the registration, margin, capital and business conduct requirements that would apply to dealers and major participants).1437 The Proposing Release also noted that there are costs that entities will incur in determining whether they fall within the definitions of ‘‘security-based swap dealer’’ and ‘‘major security-based swap participant.’’ 1438 Commenters that addressed these issues discussed both types of costs.1439 Our consideration of these issues has been informed by the comments we received. In adopting these final rules, we have sought to take into account the broader costs and benefits associated with the regulation of security-based swap dealers and major security-based swap participants, which we refer to in this section as ‘‘programmatic’’ costs and benefits. We have also considered the direct costs that persons would incur to assess whether they fall within the dealer or major participant definitions or to assess the potential availability of limited registration as a dealer or major participant. We refer to these costs as ‘‘assessment’’ costs.1440 The programmatic costs and benefits and the assessment costs raise distinct analytic issues. We discuss below certain of the costs and benefits—both programmatic and assessment-related—that we have considered in adopting these rules. These costs and benefits have informed the policy choices described above. 1437 See Proposing Release, 75 FR at 80206. Proposing Release, 75 FR at 80206–07. 1439 See, e.g., letters from Representatives Bachus and Lucas (‘‘Casting an overly-broad net in defining these terms could force some smaller participants to leave the marketplace as a result of increased costs, or eliminate certain types of contracts used for hedging. If either occurs, businesses will be left exposed to market volatility and the consequences will ultimately be felt by Americans in the forms of increased consumer costs.’’); ISDA (suggesting that imposing dealer regulation beyond persons whose business is to make markets would be inconsistent with the Dodd-Frank Act’s intent to preserve growth and innovation in the swap markets); ABC/CIEBA (stating that major participant thresholds will cause persons who pose no systemic risk to incur substantial costs associated with major participant registration and regulation); SIFMA– AMG (addressing complexity and burden of analyzing potential status as a major participant, and urging implementation of a calculation safe harbor). 1440 We expect that the benefits resulting from the identification and registration of dealers and major security-based participants will likely accrue primarily at the programmatic level. To the extent appropriate given the purposes of Title VII, we have sought to mitigate the costs entities will incur in connection with such identification and registration. 1438 See E:\FR\FM\23MYR2.SGM 23MYR2 mstockstill on DSK4VPTVN1PROD with RULES2 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations Accordingly, the analysis below includes references throughout to the earlier discussions of the policy decisions taken by the Commissions. In considering the costs and benefits of these rules, we are mindful of the various considerations that must be taken into account in establishing the baseline against which those costs and benefits may be evaluated. A key consideration is that the definitions, while integral to the regulatory requirements that will be imposed on dealers and major participants pursuant to Title VII, do not themselves establish the scope or nature of those substantive requirements or their related costs and benefits. In light of this consideration associated with definitional rulemaking, the baseline we are using to consider the costs and benefits associated with the definitions presumes that the other Title VII rules that implement the statutory requirements applicable to securitybased swap dealers and major securitybased swap participants will be adopted (and will be the subject of their own economic analysis), but as yet there are no dealers or major participants subject to any of these requirements. The costs and benefits described below are therefore those that may arise in connection with (1) identifying a subset of current and future market participants as either security-based swap dealers or major security-based swap participants (i.e., the assessment costs) and (2) subjecting that subset, through the definitional lines we are drawing, to a complete, fully effective complement of Title VII statutory and regulatory requirements (i.e., the programmatic costs and benefits). Accordingly, in determining the appropriate scope of the definitions being adopted in these rules, we considered what type of persons should be regulated as dealers and major participants under Title VII, in light of the purposes of the statute, the overall regulatory framework, and the data currently available to us. We thus have sought to adopt regulations that would include entities within the scope of the dealer and major participant definitions to the extent that encompassing persons with their level of security-based swap activities or positions would be necessary and appropriate given the purposes of the statute (for example, because the institution may pose market or other risks of the type addressed by Title VII). Conversely, to the extent that we expect that the regulation of certain types of market participants would not serve the statutory purposes, we have sought to exclude them from the scope of the definitions, thereby reducing unnecessary burdens on entities whose VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 30723 regulation may not be necessary or appropriate to further the purposes of the statute. We recognize that the costs and benefits arising from these rules will affect competition, efficiency, and capital formation in the security-based swap market broadly, with the impact not being limited to the specific entities that fall within the meaning of the terms ‘‘security-based swap dealer’’ and ‘‘major security-based swap participant.’’ In the sections that follow we begin with a consideration of the costs and benefits of the rule that affect the regulated market participants that fall within the meaning of these terms, and conclude with a consideration of the potential effects of this rule on competition, efficiency, and capital formation. 2. Programmatic Costs and Benefits Associated With These Definitions’ Scope that the significance of those programmatic costs will outstrip the more discrete and entity-specific assessment costs (discussed in more detail below) that individual entities will incur in determining whether they fall within the dealer and major participant definitions. The programmatic costs linked to compliance by regulated entities with specific requirements are not the only overall costs associated with the regulation of dealers and major participants. Other potential costs associated with the establishment of a new regulatory structure over dealers and major participants, such as costs related to the potential reduction of competition in the market, the deterrence of new entrants, or reductions in capital formation, are discussed more fully below.1442 b. Programmatic Benefits a. Programmatic Costs The scope of these definitions will directly affect the number of market participants subject to Title VII and the rules thereunder and thus will directly affect the overall costs associated with the regulation of dealers and major participants pursuant to Title VII. Persons who fall within the statutory definitions of security-based swap dealer and major security-based swap participant, as further defined by these rules, will incur a number of upfront costs and ongoing costs in connection with their status as dealers or major participants. Those include, but are not limited to, costs of complying with requirements related to: registration; reporting, recordkeeping, confirmation and documentation; sales practices; margin, capital and segregation of customer collateral; and maintaining a chief compliance officer.1441 We expect 1441 For example, dealers and major participants will be subject to business conduct requirements of section 15F of the Exchange Act, and thus will be required, among other things, to determine that their counterparty meets certain eligibility standards before entering into security-based swaps with them and to disclose information about material risks and characteristics, material incentives, conflicts of interest, the daily mark, and clearing rights. See Securities Exchange Act Release No. 64766 (June 29, 2011), 76 FR 42396, 42406, 42410 (July 18, 2011). Also, for example, in connection with registration requirements we expect security-based swap dealers and major security-based swap participants to incur costs in connection with completing and filing forms, providing related certifications, addressing additional requirements in connection with associated persons, as well as certain additional costs. See Securities Exchange Act Release No. 65543 (Oct. 12, 2011), 76 FR 65784, 65813–18 (Oct. 24, 2011). The costs associated with these and other substantive rules applicable to dealers and major PO 00000 Frm 00129 Fmt 4701 Sfmt 4700 The regulation of dealers and major participants also will provide a number of programmatic benefits to the securitybased swap market and to market participants. As discussed above,1443 registered security-based swap dealers and major participants will be subject to a number of entity-level and transaction-level requirements that we expect to produce a broad array of benefits consistent with the purposes of Title VII.1444 For example, section 15F(e) of the Exchange Act and related rules impose capital and margin requirements on dealers and major participants,1445 which will reduce the financial risks of these institutions and contribute to the stability of the security-based swap market in particular and the U.S. financial system more generally. Section 3E of the Exchange Act, among other things, requires security-based swap dealers that collect margin from counterparties to cleared security-based swap transactions to maintain that collateral in segregated accounts, as well as providing counterparties to uncleared security-based swap transactions with security-based swap dealers and major participants are being addressed in more detail in connection with the applicable rulemakings. 1442 See part VIII.A.4, infra. 1443 See part II.D.3.a, supra. 1444 In application, the programmatic requirements applicable to security-based swap dealers may differ from the programmatic requirements applicable to major security-based swap participants. For example, the proposed business conduct rules applicable to dealers include ‘‘know your customer,’’ suitability and ‘‘pay to play’’ requirements that would not also apply to major participants. See Exchange Act Release No. 64766 (June 29, 2011), 76 FR 42396, 42399–401 (July 18, 2011). 1445 See Exchange Act section 15F(e). E:\FR\FM\23MYR2.SGM 23MYR2 mstockstill on DSK4VPTVN1PROD with RULES2 30724 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations security-based swap participants with the right to require the segregation of assets held as collateral with an independent third-party custodian. These protections provide market participants who enter into transactions with these entities confidence that their collateral accounts will remain separate from the dealer or major participant’s assets in the event of bankruptcy.1446 Title VII also requires registered entities to implement risk management policies and procedures that should allow them to avoid taking on excessive risk and to better deal with market fluctuations that might otherwise endanger the financial health of the entity.1447 Title VII further imposes a range of business conduct requirements upon these registered entities, which should deter fraudulent or deceptive conduct and increase information transparency for customers and counterparties seeking to access the security-based swap market. For example, section 15F(h)(3)(B) of the Exchange Act and related rules establish certain disclosure requirements for dealers and major participants,1448 while section 15F(h)(3)(C) of the Act and related rules require that communications by these entities meet certain standards of fairness and balance.1449 Section 15F(j)(5) of the Act and related rules introduce requirements intended to address potential conflicts of interest that may arise in transactions between a dealer or major participant and its counterparty.1450 Title VII also establishes higher levels of protection for special entities entering into transactions with dealers or major participants.1451 As we discuss in more detail in our analysis of the competitive effects of these rules, these protections, and the related increase in transparency in dealings with registered entities may be expected to improve the competitiveness and efficiency of the market. Finally, Title VII also imposes requirements that are designed to promote effective market operation and transparency. Sections 15F(f), (g), and (j)(3) of the Exchange Act and related rules impose certain reporting, recordkeeping, and regulatory disclosure requirements upon registered entities, which should enhance the volume and quality of information available in the market and facilitate 1446 See Exchange Act section 3E. Exchange Act section 15F(j)(2). 1448 See Exchange Act section 15F(h)(3)(B). 1449 See Exchange Act section 15F(h)(3)(C). 1450 See Exchange Act section 15F(j)(5). 1451 See Exchange Act sections 15F(h)(2), (h)(4), (h)(5). 1447 See VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 effective oversight by the Commission.1452 Section 15F(i) establishes regulatory standards related to the confirmation, processing, netting, documentation and valuation of security-based swaps, which should enhance the efficiency of the procedures surrounding the execution of securitybased swap transactions.1453 We expect that the regulation of security-based swap dealers and major participants through these provisions will advance the transparency, risk reduction and counterparty protection purposes of Title VII.1454 While these benefits will be significant, they will not be entirely measurable, as it is not possible to quantify the benefits of mitigating or avoiding a future financial crisis, or the benefits of avoiding an unsuitable security-based swap transaction.1455 Those benefits, moreover, can be expected to manifest themselves over the long-term and be distributed over the market as a whole. c. The Relation Between These Rules and the Programmatic Costs and Benefits In adopting these final rules, we recognize that: (a) The choices reflected by these rules will affect how many persons and which persons ultimately will be deemed to be dealers or major participants; and (b) those results, combined with the substantive requirements that are to be adopted in connection with the dealer and major participant regulatory regime, ultimately will determine the programmatic costs 1452 See Exchange Act section 15F(f) (reporting and recordkeeping requirements); Exchange Act section 15F(g) (daily trading records requirements); and Exchange Act section 15F(j)(3) (requirements related to the disclosure of information to regulators). 1453 See Exchange Act section 15F(i). 1454 Prior to the enactment of the Dodd-Frank Act, a Treasury Department blueprint for financial reform articulated benefits of comprehensive regulation of derivatives: ‘‘OTC derivatives markets, including CDS markets, should be subject to comprehensive regulation that addresses relevant public policy objectives: (1) preventing activities in those markets from posing risk to the financial system; (2) promoting the efficiency and transparency of those markets; (3) preventing market manipulation, fraud, and other market abuses; and (4) ensuring that OTC derivatives are not marketed inappropriately to unsophisticated parties.’’ Department of the Treasury, Financial Regulatory Reform—A New Foundation 46–47 (2009). 1455 See note 421, supra. The significance of these potential benefits is suggested by the 2008 financial crisis. Better Markets cited estimates that the worldwide cost of the 2008 financial crisis in terms of lost output was between $60 trillion and $200 trillion, depending primarily on the long-term persistence of the effects. See letter from Better Markets. We recognize, however, that this estimate addresses the aggregate cost of the financial crisis, and that Title VII is directed to only one aspect of the factors that contributed to the crisis. PO 00000 Frm 00130 Fmt 4701 Sfmt 4700 and benefits that will be associated with the substantive regulation of dealers and major participants. This is not to say that there would be a one-to-one correlation between the regulation (or non-regulation) of any particular entity as a dealer or major participant and the additional (or reduced) programmatic costs and benefits that would be associated with the regulation (or non-regulation) of that entity. Some of the costs of regulating a particular person as a dealer or major participant, such as costs of registration, may largely be fixed. At the same time, other costs associated with regulating that person as a dealer or major participant (e.g., costs associated with margin and capital requirements) may be variable, reflecting the level of the person’s security-based swap activity. Similarly, the regulatory benefits that would arise from deeming that person to be a dealer or major participant (e.g., benefits associated with increased transparency and efficiency, and reduced risks faced by customers and counterparties), although not quantifiable, may be expected to be variable in a way that reflects the person’s security-based swap activity. In addition, it is reasonable to believe that the implementation of Title VII itself will change the security-based swap market, and, with the full implementation of Title VII—which in part is conditioned on these definitions—more information will be available for this analysis.1456 Given these limitations on our ability to conduct a quantitative assessment of the programmatic costs and benefits associated with these definitional terms, we have considered these costs and benefits primarily in qualitative terms. In that framework it is possible to identify a subset of such entities that, because of the volume of their dealing activity or the size of their securitybased swap exposure, appear to be the types of entities for which the other statutory requirements of Title VII were created. We have therefore sought to adopt definitions that would capture these entities, as the statute requires us to do, without imposing the costs of Title VII on those entities for which regulation currently may not be justified in light of those purposes. We believe that this approach will maximize the benefits provided by Title VII while minimizing costs to the extent 1456 The lack of market data is particularly significant in the context of total return swaps on equity and debt. We do not have the same amount of information regarding those products as we have in connection with the present market for singlename credit default swaps. E:\FR\FM\23MYR2.SGM 23MYR2 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES2 consistent with the purposes of the statute. Moreover, as discussed above, the SEC has directed the staff to report to the Commission on all aspects of the dealer and major participant definitions no later than three years following the later of: (i) the last compliance date for the registration and regulatory requirements for security-based swap dealers and major security-based swap participants under Section 15F of the Exchange Act; and (ii) the first date on which compliance with the trade-bytrade reporting rules for credit-related and equity-related security-based swaps to a registered security-based swap data repository is required. This report will provide the SEC and market participants with more information about the security-based swap market following the implementation of Title VII— including information regarding the business of dealers and major participants, the characteristics of positions they and other market participants hold, the structure of the market, and how Title VII has affected those aspects of the market. This report, which will take into account the additional data from our observations of the security-based swap market and the functioning of the associated regulatory requirements, is intended to help the SEC assess whether to make changes to the scope of the dealer and major participant definitions (as well as to assess future actions related to the extended compliance period in connection to the de minimis exception to the security-based swap dealer definition). d. Analysis of the Effect of Specific Rules on Programmatic Costs and Benefits We have sought to establish definitions that capture the types of entities whose security-based swap activity or whose security-based swap positions warrant regulation under Title VII as dealers or major participants, and to exclude the types of entities whose activity or positions may not warrant such regulation. The relationship between a given rule and the scope of the persons that ultimately will fall within the dealer or major participant definitions—along with the related costs and benefits—manifests itself in different ways depending on the rule at issue. Some of these rules may be expected to have a close link to the overall programmatic costs and benefits associated with dealer and major participant regulation because they play a significant role in determining the overall scope of the definitions (for example, because they are relevant to VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 the status of relatively more entities). Other rules may be expected to affect the status of relatively fewer entities and thus have a smaller effect on those programmatic costs and benefits. We anticipate that the report that the SEC staff will make to the Commission following the full implementation of Title VII with regard to these definitions will help us more fully evaluate the programmatic impact of all of these rules, both in terms of the number of potential major participants and dealers that would result from the definition we are adopting as well as potential alternatives, and in terms of the associated programmatic costs and benefits. i. Core Rules That Implicate Programmatic Costs and Benefits The core definitional terms with respect to establishing the scope of the dealer and major participant definitions are those relating to: (i) the core dealer definition, (ii) the dealer de minimis exception, and (iii) the definitions of ‘‘substantial position’’ and ‘‘substantial counterparty exposure’’ within the major participant definition. A. Dealer Definition Exchange Act rule 3a71–1 defines ‘‘security-based swap dealer’’ and thus plays a central role in determining the scope of the Title VII regulatory regime going forward. Based on the available data regarding activity in the market for single-name credit default swaps, including the application of various criteria that may be indicative of dealing activity in that market, and taking into account the availability of the de minimis exception to the dealer definition, we estimate that 50 or fewer entities ultimately may have to register with the SEC as security-based swap dealers.1457 This is consistent with the 1457 This estimate—which potentially overstates the number of potential dealers—is consistent with the data considered in the CDS Data Analysis. That analysis implied a range of alternative estimates— from 16 possible dealers to 93 possible dealers— based on currently available data and reflecting a $3 billion de minimis level. Compare CDS Data Analysis at table 2a (identifying 16 potential dealers above the $3 billion level based on the criterion of having 20 or more unique counterparties) with CDS Data Analysis at table 2c (identifying 93 potential dealers above that level based on the criterion of having 10 or more unique counterparties). However, most of the criteria applied by the CDS Data Analysis as potentially indicative of dealer activity suggested estimates of fewer than 50 possible dealers after accounting for the $3 billion de minimis level. See id. at table 2b (identifying 32 possible dealers based on the criterion of having 15 or more unique counterparties); id. at table 3 (identifying 16, 19, or 25 possible dealers based on the criterion of having a certain number of counterparties not identified as dealers by ISDA); id. at table 4 (identifying 32 possible dealers based on the criterion of having a ‘‘flat notional book’’); PO 00000 Frm 00131 Fmt 4701 Sfmt 4700 30725 estimate that accompanied the proposal.1458 id. at table 5 (identifying 33 possible dealers based on the criterion of having ‘‘flat transaction volume’’); id. at table 7 (identifying 40 possible dealers that meet two or more of the other criteria cited in the analysis); id. at table 8 (identifying 27 possible dealers that meet three or more of the other criteria cited in the analysis). Only two criteria suggested estimates in excess of 50 possible dealers above the $3 billion level. See id. at table 2c (identifying 93 possible dealers based on the criterion of having 10 or more unique counterparties, which may also be explained by the fact that non-dealers may maintain trading relations with multiple dealers); id. at table 6 (identifying 52 possible dealers based on the criterion of posting initial margin with low frequency, which may also be explained by underreporting of margin due to the fact that such reporting was voluntary with respect to the data underlying the CDS Data Analysis). While recognizing that alternative criteria for identifying possible dealing activity produced varied results, we believe that the results largely are consistent with the estimate of 50 or fewer securitybased swap dealer registrants. We further believe that it is appropriate to place particular weight on one criterion that identified possible dealing activity based on whether an entity engaged in security-based swap transactions with three or more counterparties that themselves were not identified as dealers by ISDA. That analysis identified 28 entities possibly engaged in dealing activity (with 25 of those with trailing notional transactions that exceed the $3 billion de minimis threshold we are adopting). See CDS Data Analysis at table 3c. We believe that this metric serves as a useful proxy for the application of the dealer-trader distinction, given that persons with the business model of seeking to profit by providing liquidity in general may reasonably be expected to engage in transactions with persons who are not themselves recognized as dealers. In estimating that 50 or fewer entities ultimately may have to register as dealers, we are seeking to take a conservative approach that recognizes both the limitations on the conclusions that may be drawn from available data and the potential for changes in the security-based swap market. We recognize that the criteria applied in the CDS Data Analysis are imperfect in that they do not directly apply the dealer-trader distinction, and that some alternative criteria may prove to be superior predictors of actual dealing activity. We also recognize that the estimate may overstate the number of possible registered dealers insofar as not all of the activity of persons identified as potential dealers based on the CDS Data Analysis necessarily reflects dealing activity, meaning that in practice a greater number of entities may be able to take advantage of the de minimis exception, and fewer entities would have to register as dealers, than estimates implied by that analysis may suggest. This estimate of 50 potential dealers further seeks to reflect the potential for growth in the size of the security-based swap market, as well as growth in the number of registered dealers as a result of competition promoted by the policies contemplated by the Dodd-Frank Act, and the possibility that some business groups that are identified as a single entity for purposes of this data ultimately may register multiple legal entities as security-based swap dealers. 1458 The proposal estimated approximately 50 entities would be required to register as securitybased swap dealers, based on discussions with industry. See Proposing Release, 75 FR at 80209, n.188. Commenters did not contradict this estimate. To the extent that the actual number of registrants differs from this estimate, it is reasonable to assume that the actual number will be lower than the E:\FR\FM\23MYR2.SGM Continued 23MYR2 30726 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations Alternative approaches to identifying dealer activity, including those suggested by commenters, may have led to a lower or higher number of potential dealers out of the over 1,000 total participants in the security-based swap market. For example, commenters variously suggested, among other approaches, that the dealer definition should be interpreted to be coextensive with the concept of market making activity, that dealer status should be limited to persons available to take either side of the market at any time, or that dealer status should be limited to transactions arising from a ‘‘customer’’ relationship.1459 Following those alternative approaches potentially would reduce the ultimate number of persons required to register as dealers. In adopting the final rules and providing interpretive guidance that adapts our traditional dealer-trader analysis for the security-based swap market, we have sought to capture those entities whose security-based swap activity is warranted due to the nature of their interactions with counterparties, or is warranted to promote market stability and transparency. In this respect, we have sought to limit the costs imposed by regulation under Title VII to those entities whose regulation would serve the transparency, customer protection, and market stability purposes of the statute while not imposing those costs on entities whose regulation may not produce sufficient benefit in terms of those purposes. The core dealer analysis that we have adopted here focuses on activity that characterizes dealers, as the statutory text requires, and does so while drawing on a well-established approach used in an analogous securities dealer context by a wide range of financial intermediaries.1460 mstockstill on DSK4VPTVN1PROD with RULES2 B. De Minimis Exception to the Dealer Definition Exchange Act rule 3a71–2 implements the de minimis exception to the dealer definition. This rule will directly affect the scope of the dealer definition by excepting certain entities that otherwise would be encompassed by the dealer definition but whose security-based swap dealing activities fall below a specified notional threshold. As above, estimate in the proposal because the de minimis level established by the final rules for credit default swaps that are security-based swaps—as described above, by far the overwhelming majority of the security-based swap market—is higher than the level that was proposed (i.e., $3 billion vs. $100 million). 1459 See part II.A.2, supra. 1460 See part II.A.5, supra (discussing the application of the dealer-trader distinction to the security-based swap market). VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 we believe that the application of the final rule implementing the de minimis exception, in combination with application of the dealer-trader distinction, reasonably may be expected to result in 50 or fewer entities ultimately registering with the SEC as security-based swap dealers.1461 As discussed above, the final rule implementing the de minimis exception reflects our attempt to focus the application of dealer regulation onto those entities for which that regulation would be appropriate, taking into account the comparative costs and benefits of dealer regulation, and the high degree of concentration of dealing activity in the security-based swap market.1462 The final rule particularly provides that a dealer may take advantage of the exception if the notional amount of its dealing activity involving security-based swaps that are credit default swaps over the trailing 12 months is no more than $3 billion. For other types of swaps, a dealer may take advantage of the exception if the notional amount of its dealing activity is no more than $150 million. The threshold for dealing activity with counterparties that are ‘‘special entities,’’ regardless of the type of security-based swap, is $25 million. The final rule also eliminates proposed tests based on the number of an entity’s dealing counterparties and on the number of its dealing security-based swaps. This approach also mitigates concerns raised by some commenters about the exception being overly narrow.1463 1461 See note 1457, supra. parts II.D, supra. Regardless of the criterion used for identifying entities engaged in dealing activity, analysis of 2011 transaction data for single-name credit default swaps indicates that possible dealers with $3 billion or more in trailing notional activity account for over 98 percent of all the trailing notional activity by such entities. See CDS Data Analysis at 8–17. 1463 See part II.D.2, supra. Conversely, some commenters suggested lower thresholds than those provided in the final rule, an approach that reasonably would be expected to lead more entities to have to register as security-based swap dealers. We did not adopt these lower thresholds because we determined that, given our understanding of the current structure of the market, it was unnecessary to do so to achieve the purposes of Title VII. Under any of the metrics used in the CDS Data Analysis (with the exception of the metrics relying on the posting of margin, which are, for reasons provided in the analysis, particularly unreliable), for example, retaining the proposed de minimis threshold of $100 million would have captured at most an additional 0.75 percent of transaction activity engaged in by entities captured by the respective analysis. See CDS Data Analysis at 8–17. In adopting this rule we also considered alternative approaches and thresholds suggested by some commenters that potentially may lead fewer entities to have to register as security-based swap dealers. For example, while some commenters supported the use of an exposure-based threshold 1462 See PO 00000 Frm 00132 Fmt 4701 Sfmt 4700 We have concluded that a $3 billion threshold for security-based swaps that are credit default swaps would appropriately apply dealer regulatory requirements to entities that comprise the vast majority of domestic dealing activities in these products, while not imposing the fixed costs of dealer regulation upon those entities responsible for only a small portion of total dealing activity, and avoiding the threat of leaving an excessive amount of dealing activity outside the ambit of dealer regulation.1464 We believe that this approach strikes a balance that appropriately maximizes the benefits of dealer regulation while avoiding the application of the fixed costs of dealer regulation onto those entities for which dealer regulation may not significantly contribute to those benefits and avoiding the threat of allowing an excessive volume of unregulated dealing activity.1465 Similar considerations influenced our determination that a $3 billion de minimis threshold would be inappropriate for persons engaged in dealing activity involving other types of security-based swaps, given the comparatively smaller size of that market.1466 We instead have set the threshold at a level that reflects the relative volume in the security-based swap market of security-based swaps that are not credit default swaps.1467 The final rule implementing the de minimis exception also sets forth a lower notional threshold for dealing activities involving ‘‘special entities,’’ consistent with the special protections that Title VII affords those entities. While we recognize that this lower threshold may deter certain entities that are not registered as dealers from rather than a notional threshold, we declined to adopt this approach because the use of an exposure threshold could permit a virtually unlimited amount of dealing activity within the de minimis exception so long as exposures are collateralized (or offset, as generally occurs with dealing activity), a result inconsistent with the purposes of Title VII. 1464 As noted above, a sufficiently high de minimis threshold could allow a significant amount of unregulated security-based swap dealing activity to develop among entities whose dealing activity does not exceed the de minimis threshold. See part II.D.5.b, supra. 1465 As noted above, an extended compliance period will be available to entities that engage in $8 billion or less in annual notional dealing activity in security-based swaps that are credit default swaps (or $400 million in dealing activity in other types of security-based swaps), to help facilitate the orderly implementation of Title VII and to afford the SEC additional time to study the security-based swap market as it evolves in the new regulatory framework. See part II.D.5.c.ii, supra. 1466 See part II.D.5.d, supra. 1467 See id. (discussing rationale for use of $150 million threshold and $400 million phase-in level in connection with those types of security-based swaps). E:\FR\FM\23MYR2.SGM 23MYR2 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations entering into security-based swap transactions with special entities, and hence may have the effect of reducing the availability of security-based swaps to those entities or increasing their costs,1468 we believe that this lower threshold is appropriate to avoid undermining those separate Title VII protections.1469 The final rule implementing the de minimis exception further provides that security-based swap activities of affiliates under common control with an entity should be considered when determining whether the entity can avail itself of the de minimis exception. That is intended to avoid evasion of the dealer registration requirement; thus, while a contrary approach might be expected to reduce the number of registered dealers, such an approach would not be consistent with the purposes of Title VII.1470 mstockstill on DSK4VPTVN1PROD with RULES2 C. ‘‘Substantial Position’’ and ‘‘Substantial Counterparty Exposure’’ Definitions Exchange Act rules 3a67–3 and 3a67– 5 define ‘‘substantial position’’ and ‘‘substantial counterparty exposure,’’ which constitute key terms within the major participant definition. The rules defining these thresholds—including the use of current exposure and potential future exposure tests, the specific features of those tests, and the thresholds associated with those tests1471—can be expected to directly 1468 We expect any such effect will likely be minimal. An analysis of 2011 transaction data regarding single-name credit default swap transactions involving special entities shows that 16 counterparties account for all transactions with special entities. Although all but one of these entities engaged in more than $25 million in transactions with such entities in 2011, all of these entities engaged in total single-name credit default swap activity well in excess of the $3 billion de minimis threshold that applies to dealers generally. See CDS Data Analysis, Table 9 and note 8. Consequently, it is possible that all 16 entities would have been required to register as dealers under the standard de minimis threshold of $3 billion, regardless of the lower de minimis threshold for special entities. 1469 See note 179, supra (discussing business conduct requirements applicable to dealing activities involving special entities). 1470 See note 437, supra (discussing use of common control standard in this anti-evasion context, rather than the majority ownership standard used in connection with the inter-affiliate exclusions from the dealer and major participant definitions). 1471 As detailed above in part IV.B.3, an entity will generally be required to register as a major security-based swap participant if its current security-based swap exposure exceeds $1 billion in a single major category of security-based swaps or to a single counterparty or if its current securitybased swap exposure plus its potential future exposure exceeds $2 billion in a single major category of security-based swaps or to a single counterparty. The current exposure test looks to an entity’s current uncollateralized exposure posed by VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 influence the overall number of persons who may fall with the major participant definition. These tests seek to capture persons whose security-based swap positions pose sufficient risk to counterparties and the markets generally that regulation as a major participant is warranted.1472 Based on available data regarding the single-name credit default swap market—which we believe will comprise the majority of security-based swaps—we estimate that the number of major security-based swap participants likely will be fewer than five and, in actuality, may be zero. As discussed above, an entity that posts daily variation margin in connection with those positions generally would need to have security-based swap positions approaching $100 billion to reach the levels of potential future exposure required to meet the substantial position threshold, even before accounting for the impact of netting, while an entity that clears its security-based swaps generally would need to have positions approaching $200 billion.1473 The available data shows that as of December 2011 a single entity had aggregate gross notional positions (i.e., aggregate buy and sell notional positions) in single-name credit default swaps exceeding $100 billion, and three others had aggregate gross notional positions between $50 and $100 billion.1474 However, as discussed above, the purchase of credit protection is weighed less heavily than the sale of credit protection for purposes of the analysis,1475 meaning that an entity’s positions reflecting single-name credit protection sold to its counterparties may be expected to be more of a key determinant of the entity’s potential future exposure level under the rules we its security-based swap positions in a given category; the potential future exposure test looks to the effective notional exposure represented by an entity’s security-based swap positions, with certain adjustments for cleared or margined positions and netting. 1472 See parts IV.C.3 and IV.E.3, supra. 1473 See note 914, supra. Although it is possible that a notional position of $20 billion could cause an entity to be a major participant in the absence of central clearing or mark-to-market margining (and assuming that there is no risk reduction associated with netting or with certain positions that pose lower credit risk), we expect that those entities (such as hedge funds) that may be expected to have large positions would, as a matter of course, post mark-to-market margin in connection with positions that are not cleared. See Proposing Release, 75 FR 80207–08 n.181 (stating our understanding that banks, securities firms, and hedge funds typically collateralize most or all of their mark-to-market exposure to U.S. banks as a matter of practice). Accordingly, we believe that $100 billion provides a reasonable focus for the analysis. 1474 See CDS Data Analysis at table 10. 1475 See part IV.B.3.c.iii, supra. PO 00000 Frm 00133 Fmt 4701 Sfmt 4700 30727 are adopting. The data shows that no entities have more than $100 billion in positions arising from selling singlename credit protection and that only two have between $50 and $100 billion in positions arising from such transactions.1476 While a ‘‘substantial position’’ or ‘‘substantial counterparty exposure’’ also can be established by a sufficiently high amount of current uncollateralized exposure, the available data does not provide information about individual entities’ uncollateralized exposure in connection with security-based swap positions. We note, however, our understanding that certain of the financial entities that may have large security-based swap positions, such as hedge funds, tend to collateralize their security-based swap exposures as a matter of course, which would reduce the potential impact of this aspect of the test. As noted above, commenters suggested both higher and lower thresholds, as well as different discounts or risk multipliers for certain positions.1477 If the final rules defining ‘‘substantial position’’ and ‘‘substantial counterparty exposure’’ incorporated higher major participant thresholds, potentially fewer entities may be major participants. Conversely, lower thresholds may have led to a higher number of major participants, with the upper bound being represented by the over 1,000 non-dealer entities that participate in the security-based swap market.1478 By potentially capturing more or fewer major participants, such alternatives would have correspondingly increased or decreased the programmatic costs and benefits associated with Title VII regulation of major participants. As discussed above, however, the tests incorporated into the final rules, and the thresholds associated with those tests, are in our view tailored to capture only those entities that pose the risks that major participant regulation in Title VII seeks to address; in other words, these thresholds and related calculations 1476 See id. Although this data describes aggregate notional positions only for single-name credit default swaps and does not include analysis of positions in other types of security-based swaps, as noted above, credit default swaps appear to account for approximately 95 percent of the security-based swap market. That fact reduces the likelihood that positions involving security-based swaps that are not credit-related would cause a person to be a major security-based swap participant, or lead any entity to find it necessary to perform the major participant analysis in connection with those instruments. 1477 See part IV.B.2, supra. 1478 See CDS Analysis at tables 10 through 12. E:\FR\FM\23MYR2.SGM 23MYR2 30728 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations incorporate the risk criteria embedded in the major participant definition.1479 For example, we have declined to exclude centrally cleared positions from the potential future exposure test, instead permitting entities to discount those positions for purposes of the analysis, because central clearing cannot reasonably be expected to fully eliminate all counterparty risk that may affect the broader markets. Based on this fact, we conclude that it would be inappropriate, given the purposes of Title VII, to exclude an entity from the major participant definition simply because all of its security-based swap positions arise from cleared transactions.1480 Similar considerations informed our approach to other aspects of the substantial position and substantial counterparty position tests, as discussed more fully above.1481 ii. Rules That May Be Expected To Have a Lesser Effect on Programmatic Costs and Benefits Several of the final rules may be expected to have relatively smaller effects on the scope of the major participant and dealer definitions because they are likely to affect relatively fewer entities. By extension, they will also have a smaller effect on the programmatic costs and benefits arising from these definitions. mstockstill on DSK4VPTVN1PROD with RULES2 A. Limited Purpose Dealer and Major Participant Designations Exchange Act rules 3a67–1 and 3a71– 1 retain the presumption that a person that is encompassed within the major participant or dealer definitions will be 1479 See part IV.B.3, supra (discussing the decisions made regarding the substantial position definition and the reasoning behind the adopted approach). For example, we have concluded that the proposed thresholds are set prudently in a manner that takes into account the financial system’s ability to absorb losses of a particular size, the need for major participant regulation not to encompass entities only after they pose significant risks to the market, and the need to account for the possibility that multiple market participants may fail close in time. In addition, as discussed above, we believe that this threshold is tailored to address the types of events associated with the failure of AIG FP. See part IV.B.3.d, supra. 1480 Central clearing helps to mitigate counterparty credit risk by improving risk management and, among other things, mutualizing the risk of counterparty failure. If multiple members of a central counterparty fail beyond the level to which such risk is managed, however, the central counterparty would also be at risk of failure. Cf. Basel Committee on Banking Supervision, Consultative Document, ‘‘Capitalisation of bank exposures to central counterparties,’’ Nov. 25, 2011 (available at: https://www.bis.org/publ/bcbs206.pdf) (proposing that the capital charge for trade exposures to a qualifying central counterparty should carry a low risk weight, reflecting the relatively low risk of default of the qualifying central counterparty). 1481 See part IV.B.3, supra. VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 deemed to be a dealer or major participant with respect to all of its security-based swap activities or positions, unless the SEC exercises its authority to limit the person’s designation as a dealer to specified categories of swaps or security-based swaps, or to specified activities. This presumption may affect programmatic costs in at least two ways. First, by not providing for registration as a limited purpose major participant or dealer as a matter of course, the final rules may be expected to increase the costs associated with the registration of those entities that seek designation as dealers or major participants or dealers. Aside from the costs of registration described in the SEC’s proposal related to the registration of dealers and major participants,1482 we expect that entities seeking to register as a limited purpose major participant or dealer would incur some additional marginal costs associated with making applications for limited designation.1483 In addition, the presumption against limited purpose designation may be expected to reduce the number of limited purpose major participants and dealers below the number that would otherwise register as limited purpose entities absent the presumption. In concept, broader availability of limited purpose registration of major participants or dealers may be expected to reduce the programmatic costs associated with regulation under Title VII, without necessarily reducing certain programmatic benefits if appropriately crafted. In particular, any programmatic effects of an appropriately scoped limited designation likely would affect only the transaction-level requirements applicable to dealers and major participants (e.g., certain business conduct standards and requirements related to trading records, documentation and confirmations), potentially reducing costs and benefits that would otherwise arise from such requirements with respect to transactions that occur outside the limited designation. At the same time, certain of the entity-level regulatory requirements applicable to dealers and 1482 See ‘‘Registration of Security-Based Swap Dealers and Major Security-Based Swap Participants,’’ Exchange Act Rel. No. 34–65543 (‘‘Registration Proposing Release’’), 76 FR 65784, 65814–65818 (describing various costs associated with registration, including $11,800 per entity to complete and file form SBSE and between approximately $94,000 and $610,000 per entity to certify to the capabilities of the entity seeking registration). 1483 These costs may include the costs of identifying how the entity would be able, as a limited designation entity, to comply with the various entity-level requirements of Title VII. PO 00000 Frm 00134 Fmt 4701 Sfmt 4700 major participants as a whole (such as requirements related to capital) would continue to apply in the context of limited designation, ensuring that a limited purpose designation would not undermine the counterparty protection and systemic risk concerns of Title VII. Notwithstanding these effects, we believe that the presumption against limited purpose designations is appropriate. This conclusion reflects the statutory language, the difficulty of separating a dealer’s activities from its non-dealing activities (or a major participant’s security-based swap positions taken under its limited purpose designation from other of its security-based swap positions) for compliance purposes, and the challenges of applying dealer or major participant regulatory requirements to only a portion of the entity’s securitybased swap business. Instead, we will consider limited purpose applications on an individual basis through analysis of the unique circumstances of each applicant.1484 We note that the available data does not indicate how many, or which, entities may have business models that conceivably could make limited purposed designations appropriate (e.g., large positions in one major category of security-based swaps accompanied by minor positions in the other).1485 B. Inter-Affiliate Exclusions From Dealer and Major Participant Definitions Exchange Act rules 3a67–3 and 3a71– 1 respectively exclude inter-affiliate security-based swaps from the calculation of substantial position and substantial counterparty position thresholds under the major participant 1484 We will consider applications for limited purpose designation in the context of the registration requirements for major participants and dealers. In that context, we could consider applications on a case-by-case basis, pursuant to requests by specific major participants or dealers. This could help to ensure that any person that is designated as a limited purpose major participant or dealer is able to comply with the regulatory requirements applicable to major participants or dealers. Accordingly, we intend to further consider issues regarding limited designations, including associated costs, in a release relating to the specific registration requirements (for example, the form used for registration) for major participants and dealers. Furthermore, as noted above, the SEC is directing the staff to prepare a report on all aspects of the dealer and major participant definitions. Upon completion of this report, the SEC may further assess whether changes to the presumption against limited designation are warranted in light of the then-current state of the security-based swap market and the types of business in which securitybased swap dealers are engaged. 1485 The study that will be conducted in connection with the dealer and major participant definitions may also provide relevant information regarding limited designations of dealers and major participants. E:\FR\FM\23MYR2.SGM 23MYR2 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES2 definition, and from the de minimis calculation under the dealer definition. The inter-affiliate exclusion from the major participant and dealer definitions has the potential to affect the scope of these definitions for those entities that engage in inter-affiliate transactions by leading some entities not to meet the major participant or dealer de minimis thresholds when they otherwise would have met those thresholds (or by allowing certain centralized hedging facilities to look only at their marketfacing activities in conducting the dealer-trader analysis). The exclusion or inclusion of certain inter-affiliate transactions thus may have some impact on the programmatic costs and benefits associated with dealer and major participant regulation. We are adopting a majority-ownership standard for determining whether transactions between affiliates can be excluded from these threshold calculations because such transactions between entities whose economic interests are aligned to a degree represented by majority ownership do not appear to pose the kinds of counterparty and market risks that Title VII addresses.1486 Some commenters suggested lower levels of control (such as common control) that may be expected to lead to fewer entities being registered as dealers or major participants, with associated impacts on programmatic costs and benefits. In our view, however, such alternative standards would not be consistent with the scope of the interactions to which dealer regulation is intended to apply, or with an alignment of economic interests consistent with an exclusion from the major participant definitions. We also note that the data upon which the staff assessment of credit default swap transactions and positions is based excludes certain inter-affiliate credit default swap transactions. As a result, estimates of market concentration and the distribution of dealing activity or credit default swap positions derived from this data should reflect to some extent the effect of the inter-affiliate exclusions we are adopting in this rule. C. Commercial Risk Hedging Exclusion Exchange Act rule 3a67–4 defines ‘‘hedging or mitigating commercial risk’’ as that term is used in the major participant definition. The scope of this definition has the potential to determine whether certain market participants will be major participants by virtue of the first statutory major participant test, and 1486 See parts II.C.2.b and IV.G.2, supra (discussing nature of inter-affiliate security-based swap transactions). VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 will therefore affect the scope of the programmatic costs and benefits associated with major participant regulation. In application, this effect may be limited in light of the fact that we estimate that, as discussed above, only five or fewer entities—perhaps as few as zero—may have to register as major security-based swap participants. The final rule adopts an ‘‘economically appropriate’’ standard for determining whether a securitybased swap position hedges or mitigates commercial risk, and sets forth exclusions for security-based swap positions that have a speculative or trading purpose. As we discuss above, we carefully considered the alternative approaches suggested by some commenters, including the suggestion that the definition should encompass positions that hedge speculative or trading positions and the suggestion that the definition should incorporate a ‘‘congruence’’ standard. We concluded, however, that these approaches are inconsistent with the focus of the statutory text, which is on ‘‘commercial risk.’’ 1487 We also concluded that broadening the exclusion as some commenters suggested could largely exclude security-based swap positions from the first major participant test. This would produce a result that we believe to be contrary to the purposes of that part of the statutory definition, which envisions that entities might be required to register as major participants by virtue of their security-based swap positions. D. ‘‘Financial Entity’’ Definition Exchange Act rule 3a67–6 defines ‘‘financial entity’’ for purposes of the third test of the major participant definition, which applies to certain highly leveraged non-bank financial entities and does not prevent them from excluding commercial risk hedging positions when conducting the substantial position analysis (in contrast to the first test within the major participant definition, which permits exclusion of those hedging positions). Although the scope of the financial entity definition has the potential to affect the number of persons who are captured by the third test of the statutory major participant definition (and thus, by extension, the programmatic costs and benefits associated with major participant regulation), we believe that as a practical matter such an effect would be 1487 See parts IV.C.5.a and IV.C.5.b, supra (discussing rationale for excluding hedges of speculative and trading positions from the definition). PO 00000 Frm 00135 Fmt 4701 Sfmt 4700 30729 minimal. This is based on our view that persons that have security-based swap positions large enough and risky enough to potentially lead to major participant status to be financial in nature and thus would likely fall within any reasonable interpretation of the term ‘‘financial entity,’’ 1488 thus making such entities potentially subject to the third major participant test (to the extent that such entities are subject to bank capital requirements). E. ‘‘Highly Leveraged’’ Definition Exchange Act rule 3a67–7 defines ‘‘highly leveraged’’ for purposes of the third prong of the major participant definition, which applies to certain nonbanks as described above. In adopting the final rule, we have considered alternative approaches suggested by commenters. For example, a number of commenters favored the use of a 15 to 1 leverage ratio, which may be expected to reduce the number of persons who are deemed to be ‘‘highly leveraged’’ and thus subject to the third test. Conversely, some commenters favored a ratio that is lower than the one found in the final rule, which may be expected to increase the number of entities deemed to be highly leveraged.1489 The final rule defines ‘‘highly leveraged’’ as a leverage ratio of 12 to 1 or higher. In our view, this ratio reasonably sets forth objective criteria for identifying entities that pose a heightened risk of being unable to meet their obligations through their use of leverage. This 12 to 1 ratio reflects a number of factors, including the use of a 12 to 1 ratio in connection with certain broker-dealer capital rules, as well as reasons to distinguish the use of a 15 to 1 ratio in Title I of the DoddFrank Act.1490 As with the financial entity definition in rule 3a67–6, as a practical matter we do not believe that expanding or narrowing the leverage ratio within any reasonable definition of ‘‘highly leveraged’’ for purposes of the third major participant test will have a significant impact on the programmatic costs and benefits of major participant regulation. In part, this is because we believe that in many circumstances the 1488 See Federal Reserve Bank of New York staff reports, ‘‘An Analysis of CDS Transactions: Implications for Public Reporting’’ (2011) at table 3 (‘‘NY Fed analysis’’) (available at https:// www.newyorkfed.org/research/staff_reports/ sr517.pdf) (discussing credit default swap trade frequency by market type, and indicating that most activity is done by entities of a financial nature). 1489 See part IV.F.2.b, supra. 1490 See part IV.F.3.b, supra (discussing the rationale for using a 12 to 1 ratio for purposes of defining the term ‘‘highly leveraged’’ in the context of the major participant definitions). E:\FR\FM\23MYR2.SGM 23MYR2 30730 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations sales of credit protection cannot reasonably be interpreted to constitute the hedging of commercial risk,1491 meaning that such positions in any event may be expected to be considered as part of the analysis of the first major participant test. The programmatic impact of this definition further is mitigated by the fact that we believe that there will be relatively few entities whose security-based swap positions would cause them to be major participants. F. ‘‘Major’’ Categories of Security-Based Swaps Exchange Act rule 3a67–2 defines ‘‘major’’ categories of security-based swaps, a term that plays a role in the two statutory major participant tests that turn upon the presence of a substantial position in a ‘‘major’’ category of security-based swaps. The final rule retains the proposal’s division of those instruments into debt-based and other categories. As discussed above, these major categories are broadly consistent with market usage and statistics, and we believe that it is reasonable for entities undertaking this analysis to use these categories in calculating whether they have a substantial position.1492 In theory, it is possible that the categorization of security-based swaps for these purposes could result in a particular entity exceeding the applicable thresholds in a major category, causing it to be a major security-based swap participant and triggering the Title VII registration and regulatory requirements.1493 The relationship between the major securitybased swap categories as we have defined them in this rule and the programmatic costs and benefits associated with major participant regulation will depend largely on how the security-based swap positions of entities with security-based swap exposures approaching these thresholds are distributed between these categories. The available data suggests that the debt-based major category (i.e., credit default swaps) accounts for the vast majority of security-based swap positions.1494 Absent an approach that 1491 See note 1019, supra. part IV.A.3 (discussing rationale for final ‘‘major’’ categories). 1493 In other words, the dividing line that the rule sets between the major category of debt-based security-based swaps and the major category for other security-based swaps (or other dividing lines based on different or additional major categories) could determine whether an entity’s security-based swap positions exceed or fall below the major participant thresholds for a particular major category, and hence whether the entity will be deemed to be a major participant. 1494 See note 476, supra. mstockstill on DSK4VPTVN1PROD with RULES2 1492 See VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 breaks single-name credit default swaps in to multiple ‘‘major’’ categories— which itself would not appear to be justified based on current information— this suggests that this categorization as a practical matter will not have a significant effect on the programmatic costs and benefits of major participant regulation.1495 G. Registration Period Exchange Act rules 3a67–8 and 3a71– 2 establish periods for registration as a dealer and major participant, as well as periods for revaluating or terminating one’s status as a registered entity. As such, these provisions may affect the length of time that particular entities may be deemed to be major participants or dealers, and hence subject to the requirements applicable to those entities. However, any effect of delaying or accelerating dealer or major participant status on the programmatic costs and benefits associated with major participant or dealer status likely will be negligible compared to the overall programmatic costs and benefits associated with major participant or dealer regulation. H. Calculation Safe Harbor Exchange Act rule 3a67–9 establishes a calculation safe harbor for the major participant threshold tests. We do not believe that this safe harbor changes the scope of the major participant definition, as it should not exclude from the major participant definition any entity that would otherwise fall within the definition if that entity performed the substantial position calculations.1496 Accordingly, we do not believe that the safe harbor would have a material effect on the programmatic costs and benefits associated with major participant regulation. I. Interpretation Related to Guarantees In adopting these final rules, we also have finalized an interpretation regarding when a person will have 1495 For example, an alternative approach might divide narrow-based index CDS and single-name CDS into separate major categories. We believe, however, that single-name CDS account for the large majority of debt-based security-based swaps, see id., suggesting that most entities’ status as major participants would turn on their single-name CDS exposures under any reasonable approach to defining major categories and that the subtraction of narrow-based index CDS exposures in the calculation of substantial exposure would, given their relatively small market volume, have little effect on whether most entities meet the substantial exposure threshold. Thus, we believe that the decision to classify all debt-based security-based swaps in a single category will likely have minimal effect, if any, on any entity’s status as a major participant, as compared to dividing debt-based security-based swaps into two categories. 1496 See part IV.M.2, supra. PO 00000 Frm 00136 Fmt 4701 Sfmt 4700 security-based swap positions attributed to it by virtue of having guaranteed the positions of another party. In general, we have clarified that an entity’s security-based swap positions need not be attributed to its parent unless the counterparty has recourse to the parent. We also clarified that, even in the presence of a guarantee, positions of certain regulated entities—including swap dealers, security-based swap dealers, major participants, brokerdealers, FCMs and certain entities subject to U.S. bank capital requirements—will not be attributed to the guarantor.1497 We recognize that attributing securitybased swap positions to the entity guaranteeing another entity’s securitybased swap transactions may increase the number of major participants. At the same time, excluding certain regulated entities from the attribution requirement even in the presence of a guarantee may help prevent a guarantor, such as a holding company, from being deemed to be a major participant when the risks associated with those positions already are subject to regulation. We do not currently possess data relating to the existence of guarantees of the security-based swap positions of other parties and thus cannot reasonably estimate the number of additional entities that may be brought within the ambit of major participant regulation by virtue of this interpretation. However, we note that, to the extent that guarantees of another entity’s securitybased swap positions creates the level of exposure—and corresponding risk to the market and to counterparties—that warrants regulation under Title VII, it would appear inconsistent with the purposes of the statute not to subject that entity to major participant regulation. J. Other Interpretations Finally, in this release we also have provided a number of additional interpretations and discussions in connection with the dealer and major participant definitions. These include, among others: the rejection of requests for entity-specific exclusions from the dealer and major participant definitions; 1498 interpretations regarding the application of the ERISA exclusion from the first major 1497 See part IV.H.3, supra. parts II.A.6 and IV.J, supra (stating that such exclusions from the dealer definition would have no basis in the statutory text and would be inconsistent with the activity focus of the dealer definition, and not providing entity exclusions from the major participant definition because entities that meet the thresholds of the rules may pose high risk to the U.S. financial system regardless of how they are organized). 1498 See E:\FR\FM\23MYR2.SGM 23MYR2 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations participant test,1499 and interpretations regarding the application of the major participant analysis to managed accounts.1500 In theory, each of these interpretations potentially has a programmatic impact.1501 For the reasons discussed above, we believe that these interpretations reflect reasonable choices. 3. Analysis of Assessment Costs Certain persons engaged in securitybased swap activity are likely to incur costs in connection with evaluating whether they fall within the dealer or major participant definitions.1502 As detailed below, we have considered these assessment costs in adopting definitional rules and interpretations that seek to capture entities whose security-based swap activity or whose security-based swap positions warrant regulation under Title VII as dealers or major participants, while excluding entities whose activity or positions do not warrant such regulation. a. Assessment Costs Associated With the ‘‘Security-Based Swap Dealer’’ Definition i. Core Dealer Analysis and De Minimis Exception mstockstill on DSK4VPTVN1PROD with RULES2 A. Overview Exchange Act rule 3a71–1 in part restates the statutory definition of ‘‘security-based swap dealer’’ to consolidate the definition and related interpretations for market participants’ ease of reference. In conjunction with these final rules the SEC has set forth interpretations to provide additional guidance to implement the statutory approach of capturing persons that 1499 See part IV.D, supra (interpreting the provision to exclude security-based swap positions entered into for the primary purpose of hedging or mitigating risks associated with operation of the plan, consistent with the statutory language that does not limit the hedging exclusion for ERISA plans to commercial risk; also clarifying that such positions may be eligible for exclusion even if they are held by a non-plan entity that holds plan assets). 1500 See part IV.I, supra (clarifying that the position will be attributed to the client account rather than to the investment advisers or asset managers and that a beneficial owner should be required to treat the positions of such an account as its own only if the security-based swap counterparty has recourse to the beneficial owner). 1501 For example, attributing security-based swap positions to investment advisors would have increased the likelihood of advisers being deemed to be major participants. Our interpretations do not take that approach, however, as we believe that it would be inconsistent with the focus of the statutory definition. 1502 These costs are distinguishable from the costs associated with registration as a dealer or major participant (which for purposes of this analysis we treat programmatic costs) and the other programmatic costs discussed above. VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 engage in certain security-based swap activities while excluding persons that do not engage in those activities as part of a ‘‘regular business.’’ 1503 We believe that this guidance—including its reliance on the distinction between dealing activity and non-dealing activity such as hedging or trading—will allow a number of market participants to readily conclude that their securitybased swap activities will not cause them to be security-based swap dealers. In adopting this approach, we have considered alternative views, expressed by some commenters, that would have had the effect of narrowing the statutory definition’s scope.1504 Exchange Act rule 3a71–2 specifies when a person that otherwise would be a security-based swap dealer can take advantage of the de minimis exception. In adopting the rule’s tests and thresholds—including the use of a $3 billion notional threshold in connection with dealing activity involving credit default swaps that are security-based swaps, a $150 million notional threshold in connection with other types of security-based swaps, higher phase-in levels in connection with those thresholds, and a separate $25 million threshold in connection with dealing activity involving ‘‘special entities’’— we have considered a range of alternative approaches and thresholds suggested by commenters.1505 In application, the assessment costs associated with the core dealer test and de minimis exception are linked. B. Assessment Costs Associated With the Final Rules and Interpretations We recognize that certain participants in the security-based swap market may 1503 See part II.A.5, supra. include suggestions that: the dealer definition should be interpreted to be coextensive with the concept of market making activity; the dealer definition requires that a person be available to take either side of the market at any time; the dealer definition should not extend to persons solely engaged in security-based swap activity on swap execution facilities; the dealer definition should exclude persons whose security-based swap dealing activity is relatively small compared to its other activities; and dealing activity requires the presence of a ‘‘customer’’ relationship. See id. (discussing interpretive approach to ‘‘security-based swap dealer’’ definition). Conversely, a few commenters suggested rejection of the dealer-trader distinction, and implied that the dealer definition should be applied more broadly. See id. These also include suggestions that the dealer analysis incorporate particular per se exclusions. Although we recognize that such approaches may be simpler for market participants to implement, we nonetheless do not believe that such per se exclusions would be consistent with the statutory definition, which identifies dealers based on their security-based swap activities. See part II.A.6, supra (discussing reasons not to include per se exclusions from the dealer definitions). 1505 See parts II.D.3 and II.D.5, supra. 1504 These PO 00000 Frm 00137 Fmt 4701 Sfmt 4700 30731 incur costs in connection with the factsand-circumstances analysis of whether they are security-based swap dealers as defined in the statute and in the final rules, particularly with regard to the application of the dealer-trader distinction and the de minimis exception. As noted above, analysis of market data indicates that the overwhelming number of participants in the singlename credit default swap market in 2011 had total activities (dealing or nondealing) of significantly less than $3 billion notional amount over the prior 12 months.1506 In general—aside from potential dealing activity involving other types of security-based swaps and dealing activity involving ‘‘special entities’’—such persons likely would not be deemed to be security-based swap dealers regardless of whether their current level of security-based swap activities constitutes dealing (apart from those entities that increase their dealing activity following the implementation of Title VII). On the other hand, some market participants whose security-based swap activities exceed, or are not materially below, the $3 billion de minimis threshold may be expected to incur costs in connection with the dealer analysis. Those entities reasonably may conclude that they need to incur costs to analyze their security-based swap activities to determine whether those activities are non-dealing in nature (e.g., hedging or trading), or whether those activities instead are dealing in nature (e.g., part of a business purpose of providing liquidity in connection with security-based swaps), consistent with the statute and the rules and guidance provided in this release.1507 There are over 1,000 entities (U.S. and non-U.S.) that from time to time may engage in single-name credit default swap transactions.1508 Of this number, 1506 Of 1,084 entities with single-name credit default swap transaction activity over the 12 months ending in December 2011, 961 entities, or 88.7 percent, engaged in less than $3 billion notional in such activity. These 961 entities were responsible for approximately 3.2 percent of the notional value of all single-name credit default swap transactions during that period. See CDS Data Analysis, table 1. 1507 The use of the $8 billion phase-in level in connection with these activities may also be expected to temporarily mitigate such costs. 1508 See CDS Data Analysis, table 1. The Federal Reserve Bank of New York has published data that is consistent with this analysis. See NY Fed analysis at 10 (noting that for a three month period spanning from May through July of 2010, there were 933 unique market participants in the credit default swap market). As noted above, see note 148, supra, in relying on the available data we are not indicating our views as to the application of Title VII to non-U.S. E:\FR\FM\23MYR2.SGM Continued 23MYR2 30732 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES2 however, only 123 entities engaged in more than $3 billion in single-name credit default swap transactions over the previous 12 months. For purposes of analyzing the assessment costs of this rule, we have assumed that all of these entities would perform the dealer analysis.1509 We also recognize that some entities whose activities fall below the de minimis threshold may opt to engage in this analysis out of an abundance of caution or to meet internal compliance requirements, and for purposes of this analysis have assumed that the 43 entities whose activity during the trailing 12 month period fell between $2 and $3 billion also would engage in the dealer analysis, leading to a total of 166.1510 This estimate of 166 entities, although derived from data about total (dealing and non-dealing) transactions,1511 illustrates a potential upper bound for persons. Issues regarding the extraterritorial application of Title VII instead will be addressed in a separate release. 1509 See CDS Data Analysis, table 1. This approach potentially overstates the number of entities that would need to engage in the analysis. Of entities with more than $3 billion in activity over the trailing 12 month period, some number can be expected to determine, given the nature of their business, that they are (or are not) dealers under the definition without having to engage in this analysis. For example, the NY Fed analysis discussed above found that so-called G14 dealers were responsible for roughly 78 percent of CDS transactions as buyer and 85 percent of CDS transactions as sellers, and that so-called ‘‘other dealers’’ were responsible for approximately an additional seven percent of CDS transactions as sellers and six percent as buyers. See NY Fed analysis at 9, table 3. Many of these entities would likely determine that performing this analysis was unnecessary. 1510 For the reasons stated above, we also believe that this number potentially overstates the number of entities with less than $3 billion in activity over the trailing 12 month period that would be likely to engage in this analysis. Because it appears that all entities engaged in security-based swap transactions with special entities engaged in more than $8 billion in security-based swap transactions in 2011, see CDS Data Analysis at 21 n.8, we do not expect that the de minimis threshold for dealing activity involving special entities to cause market participants to incur costs independent of those associated with the general de minimis threshold. 1511 The CDS Data Analysis uses criteria that screen for likely characteristics of entities engaged in dealing activity. See CDS Data Analysis at 2. However, the available data does not permit identification of which of these entities’ transactions arise from dealing activity and which arise from non-dealing activity (such as proprietary trading or hedging). It is therefore likely that the notional amounts provided in each table of the data analysis include both dealing and non-dealing activity. For purposes of the economic analysis of our rules further defining ‘‘security-based swap dealer,’’ we have assumed that the entire notional amount for each entity appearing in Tables 2–9 represents dealing activity. Although this potentially results in an overestimate of dealing activity for these entities—and thus in an overestimate of the costs associated with conducting the dealer analysis—we believe that this represents a conservative approach to evaluating the assessment costs of these rules. VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 the total costs arising from securitybased swap dealer determinations, to the extent that all market participants whose security-based swap activity approaches or exceeds the $3 billion de minimis threshold identify a need to retain outside counsel to analyze their status under the security-based swap dealer definition. In that context, this estimate suggests that the costs of analysis may approach $4.2 million.1512 In accounting for the de minimis exception in estimating these costs, we note our expectation that market participants generally would be aware of the notional amount of their activity involving security-based swaps as a matter of good business practice. Consequently, we would not expect market participants to incur costs in determining the availability of the de minimis exception significantly in excess of the costs associated with the general dealer determination.1513 1512 This total is based on the assumption that 166 market participants would seek outside legal counsel to determine their status under the security-based swap dealer definition, with such analysis costing an average of $25,000 per entity. The average cost incurred by such entities in connection with outside counsel is based on staff experience in undertaking legal analysis of status under federal securities laws, and assumes that the legal analysis for a complex entity on average may cost $30,000, and that the legal analysis for a less complex entity on average may cost $20,000. The use of inside counsel in lieu of outside counsel would reduce this upper bound. We recognize that the complexity of market participants may vary greatly, and that we do not have insight into market participants such that we could reasonably determine how many entities may be considered more or less complex for these purposes. Thus, based on our understanding of the market we believe that an average of the costs associated with more complex and less complex entities equaling $25,000 would reasonably approximate the average costs for entities across the credit default swap market, assuming that all such participants perceive a need to retain outside counsel for purposes of the analysis. 1513 We note that different cost estimates have been used for purposes of the ‘‘swap dealer’’ definition under the CEA. We do not believe that the estimate of the number of persons who would have to engage in a dealer analysis under the CEA would be germane to the analysis of the costs associated with the Exchange Act’s ‘‘security-based swap dealer’’ definition, given the wide range of markets that are exclusive to the ‘‘swap’’ definition. We also do not believe that the basis that underpins the CFTC’s estimate of the cost of performing the dealer analysis under the definition of swap as set forth in the CEA would be relevant to the Exchange Act definition. In part, this is because we believe that the entities whose security-based swap activities may cause them to be dealers likely would have businesses that are financial in nature. We thus expect that those entities would be particularly sensitive to the link between the business purpose of their activities and the dealer definition. In many cases those entities also should be familiar with the use of the dealer-trader distinction in connection with their activities involving other types of securities. We also note that different cost estimates have been used for purposes of the de minimis exception under the CEA. We expect, however, that entities PO 00000 Frm 00138 Fmt 4701 Sfmt 4700 We recognize that additional market participants may be expected to incur these types of assessment costs to the extent that they engage in activity involving other types of security-based swaps in an amount close to, or in excess of, $150 million annually. Because the market for these other types of security-based swaps appears to be highly concentrated (like the singlename credit default swap market) and to involve many of the same entities,1514 we expect the number of entities that will incur assessment costs solely by virtue of this lower threshold also to be small. In addition, we recognize that some market participants potentially may incur these types of assessment costs to the extent they engage in security-based swap activities in an amount close to, or in excess of, $25 million annually.1515 For the reasons discussed above we believe that the approach we are adopting in the final rules is necessary and appropriate given the goals of Title VII and the statute’s express requirement that we implement a de minimis exception to the dealer definition. ii. Additional Issues Related to the Dealer Analysis A. Limited Designation of Dealers Exchange Act rule 3a71–1(c) implements the portion of the ‘‘securitybased swap dealer’’ definition that provides for limited purpose registration of dealers. The rule provides for a presumption that a person that acts as a security-based swap dealer is a dealer with regard to all of its security-based swaps or security-based swap activities, unless the SEC limits its designation. While we recognize that permitting persons to more broadly take advantage of limited dealer designations potentially would lower the cumulative costs that individual dealers otherwise would incur to determine whether to whose security-based swap activities may cause them to be dealers likely would have businesses that are financial in nature. We thus expect that those entities would: (a) be well placed to distinguish their security-based swap dealing activities from their non-dealing activities under the dealer-trader distinction; and (b) would be familiar with the notional amount of their security-based swap activities over the prior year. 1514 See, e.g., OCC Quarterly Report at tables 1 and 10 (listing notional credit and equity derivatives for largest U.S. banks and trust companies). See also note 429, supra. 1515 We believe that any such costs would be modest, in light of data indicating that persons who are counterparties to special entities in the singlename credit default swap market may otherwise have to register as dealers notwithstanding the lower threshold connected with special entities. See note 1510, supra. E:\FR\FM\23MYR2.SGM 23MYR2 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations seek a limited designation,1516 after careful consideration of commenter concerns we have determined that it is appropriate to adopt a presumption against limited designation.1517 Certain persons who satisfy the dealer definition may incur costs in determining whether to seek a limited designation. We believe that such costs would affect no more than the 166 entities that potentially may be expected to engage in the dealer analysis,1518 and expect these costs to be included in the estimated costs of seeking outside legal counsel described above. mstockstill on DSK4VPTVN1PROD with RULES2 B. Exclusion of Inter-Affiliate SecurityBased Swaps Exchange Act rule 3a71–1 also provides that security-based swaps between majority-owned affiliates will be excluded for purposes of the dealer analysis. After consideration of commenter views, we are adopting this standard, rather than potential alternatives such as a common control test, because we believe that it is appropriate, in light of the goals of Title VII, that the dealer definition not capture entities by virtue of securitybased swap transactions with affiliated entities that have a sufficient alignment of economic interests to avoid raising 1516 A default presumption in favor of the availability of limited designations may be expected to reduce the costs associated with an entity determining whether it qualifies for such relief, such as the costs of hiring outside legal counsel to undertake this analysis to determine that they could take advantage a limited designation relief. 1517 In this regard we note the relative lack of data about the types of security-based swap positions held by particular entities that will fall within the dealer definition. Our decision takes into account the difficulty of separating a dealer’s activities from its non-dealing activities for compliance purposes, and the challenges of applying dealer requirements to only a portion of the entity’s security-based swap activities. In reaching our decision, we have especially been influenced by the statutory definition’s discretionary language in connection with the potential for limited designations, and by the need for persons subject to limited designations to be able to comply with the statutory and regulatory requirements applicable to major participants. See part II.E.3, supra (discussing limited designation principles applicable to dealers). We note that the discussion of limited designation of ‘‘swap dealers’’ under the CEA generally seeks to quantify the costs associated with applications for limited designations. However, we believe that the costs of applying for a limited designation are dependent upon the application process for this type of registration category. As noted previously, the SEC expects to address the limited designation application process for securitybased swap dealers in separate rulemakings. See id. As such, we believe that the costs associated with security-based swap dealer limited designation applications under the Exchange Act are more appropriately addressed in the context of those separate rulemakings. 1518 As discussed above, see note 1457, supra, we have estimated that 50 or fewer entities ultimately may have to register as security-based swap dealers. VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 systemic risk, customer protection, and other concerns that dealer regulation is intended to address.1519 Moreover, we note that a majority-ownership test should, given its objective nature, impose fewer assessment costs on market participants than a more subjective common control test. Some market entities may need to incur costs in connection with determining whether particular security-based swap positions may be excluded from the dealer analysis by virtue of the inter-affiliate exclusion. Such costs potentially could be incurred by any of the approximately 166 entities that we believe may engage in the dealer analysis. The costs specifically associated with that assessment may vary depending on factors including the extent to which those entities engage in inter-affiliate security-based swaps, but we expect these costs to be included in the estimated costs of seeking outside legal counsel described above. C. Timing Issues Connected to the De Minimis Exception In response to commenter concerns, Exchange Act rule 3a71–2 specifies that an entity that no longer may rely on the de minimis exception, because its dealing activity has exceeded the exception’s thresholds, has two months to submit a completed application to register as a dealer.1520 The final rule also specifies that a person who has been registered as a dealer for at least 12 months may withdraw from registration while continuing to engage in a limited amount of dealing activity under the exception. In adopting these rules we have carefully considered alternatives that would lead to slower entry and faster exit from dealer status, and we recognize that providing particular entities with additional time to register as a dealer may have the potential to reduce the costs associated with the registration process.1521 We believe, however, that a two-month period for registration should provide entities with sufficient time to register without incurring additional expenses—both for large firms with security-based swap businesses well above the $3 billion threshold, and for mid-sized firms that fluctuate near the $3 billion threshold 1519 See part II.C.2, supra. part II.D.6, supra (discussing rational for final rule addressing registration period for entities that exceed the de minimis threshold). 1521 For example, a shorter period for registration might be expected to cause some entities to incur over-time costs arising from the need to complete the registration process within a short time frame, whereas a longer time period could have enabled such an entity to avoid those costs. 1520 See PO 00000 Frm 00139 Fmt 4701 Sfmt 4700 30733 amount. We also conclude that this approach will appropriately help to avoid applying dealer requirements to entities that no longer meet the dealer criteria, and will avoid the prospect of persons moving in and out of dealer status overly frequently. b. Assessment Costs Associated With the ‘‘Major Security-Based Swap Participant’’ Definition i. ‘‘Substantial Position’’ and ‘‘Substantial Counterparty Exposure’’ Definitions A. Overview of ‘‘Substantial Position’’ and ‘‘Substantial Counterparty Exposure’’ Definitions Exchange Act rule 3a67–3 defines the term ‘‘substantial position’’ for purposes of the first and third tests of the statutory major participant definition (which address whether a person has a ‘‘substantial position’’ in a major category of security-based swaps). The final rule sets forth two tests for identifying the presence of a substantial position—one test based on a $1 billion daily average measure of uncollateralized mark-to-market exposure, and one based on a $2 billion daily average measure of combined uncollateralized mark-to-market exposure and potential future exposure. Both of those daily measures would be calculated and averaged over a calendar quarter. In developing the ‘‘substantial position’’ tests and their associated thresholds, we have sought to capture those entities whose security-based swap positions have the potential to pose significant risks to financial markets, while not capturing other entities for which major participant regulation and its associated costs would be unwarranted.1522 Exchange Act rule 3a67–5 defines ‘‘substantial counterparty exposure that could have serious adverse effects on the financial stability of the United States banking system or financial markets,’’ a phrase that comprises part of the second test of the ‘‘major securitybased swap participant’’ definition. The analysis set forth in this rule parallels the ‘‘substantial position’’ analysis, but: (i) Contains higher thresholds; (ii) examines an entity’s security-based swap positions as a whole (rather than focusing on a particular ‘‘major’’ category); and (iii) would not exclude certain hedging positions.1523 In adopting these definitions, we carefully considered alternative 1522 See part IV.B.3, supra (discussing basis for the substantial position analysis we are adopting). 1523 See part IV.E.3, supra (discussing basis for the substantial counterparty exposure analysis we are adopting). E:\FR\FM\23MYR2.SGM 23MYR2 30734 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations approaches suggested by commenters, including suggestions that the thresholds should be raised or lowered, and that certain positions should be excluded from the potential future exposure test, or that the test should discount certain positions differently.1524 We have retained the tests largely as proposed, however, as we believe that the tests appropriately address the risk criteria embedded in the major participant definition.1525 We also believe that the tests minimize the assessment costs to these entities in a manner consistent with the statutory definition. For example, the decision to base the potential future exposure analysis on tests used by bank regulators for purposes of setting prudential capital reflects our view that it would be appropriate to implement the analysis by building upon an existing regulatory approach that is less subjective—and thus less costly—for market participants to utilize (as compared to, for example, a VaR approach 1526) and would lead to reproducible results, rather than seeking to develop a brand new approach.1527 1524 See parts IV.B.2 and IV.E.2, supra. part IV.B.3, supra (discussing the decisions made regarding the substantial position definition and the reasoning behind the adopted approach). For example, we have concluded that the proposed thresholds are set prudently in a manner that takes into account the financial system’s ability to absorb losses of a particular size, the need for major participant regulation not to encompass entities only after they pose significant risks to the market, and the need to account for the possibility that multiple market participants may fail close in time. In addition, as discussed above, we believe that this threshold is tailored to address the types of events associated with the failure of AIG FP. See part IV.B.3.d, supra. As discussed above, for an entity with no current uncollateralized exposure—and before accounting for netting—it would take a $100 billion notional portfolio of marked-to-market security-based swaps that reflect written protection on credit to meet the $2 billion potential future exposure threshold for security-based credit derivatives, and it would take a $200 billion notional portfolio of cleared positions to meet that threshold. Even in the absence of clearing or daily mark-to-market margining, it would take a minimum $20 billion notional portfolio of written protection on credit (reflecting the 0.10 multiplier in the risk adjustment tables) to meet the $2 billion potential future exposure threshold. Accounting for netting (which can reduce potential future exposure measures by up to 60 percent) could materially increase that required amount. See note 914, supra. 1526 For example, because value-at-risk measures typically account only for market risk and not for other types of risk, an approach based on such measures would likely require separate calculations for these other risks, as well as calculations to account for possible losses in the event of a severe market downturn; such an approach would also require the selection of appropriate parameters for the test. See Concept Release: Net Capital, Exchange Act Rel. No. 39456, at 13–19 (comparing value-atrisk and haircut approaches to net capital calculations). 1527 See part IV.B.3.c, supra. B. Assessment Costs Associated With the Final Rules Defining ‘‘Substantial Position’’ and ‘‘Substantial Counterparty Exposure’’ Certain market participants may be expected to incur costs in connection with the determination of whether they have a ‘‘substantial position’’ in security-based swaps or pose ‘‘substantial counterparty exposure’’ in connection with security-based swaps. Based on a review of notional positions maintained in 2011 by entities with single-name credit default swap positions, we estimate that approximately 12 entities have securitybased swap positions of such an amount that, as a matter of prudence, they may reasonably find it necessary to engage in the requisite calculations, particularly given the additional availability of the calculation safe harbor.1528 In our view, the data indicates that other than approximately 12 entities, the nondealer market participants in the security-based swap market use these products in such limited amounts that they reasonably would conclude that they do not need to undertake the calculations used to determine whether they have a ‘‘substantial position.’’ 1529 mstockstill on DSK4VPTVN1PROD with RULES2 1525 See VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 1528 In the Proposing Release, we stated that based on our understanding of the market, we concluded that only 10 entities had security-based swap positions of a size to necessitate performing the calculations to determine whether they meet those thresholds. See Proposing Release, 75 FR at 80207– 08. Some commenters challenged the assumption that only approximately 10 entities would engage in the requisite calculations. Those commenters took the view that certain entities with smaller security-based swap positions would perceive a need to conduct the relevant calculations on a daily basis even if they are not reasonably likely to be major participants, and, to address that concern, requested a safe harbor from having to perform the major participant calculations. See letters from SIFMA AMG I and Vanguard. 1529 As discussed above, an entity that margins its positions daily generally would need to have security-based swap positions approaching $100 billion notional to meet the substantial position threshold, assuming no current uncollateralized exposure, while an entity that clears those positions generally would need positions approaching $200 billion notional to meet the threshold. See note 914, supra. We believe that it is reasonable to assume that most entities that will have security-based swap positions large enough to potentially cause them to be major participants in practice will post variation margin in connection with those positions that they do not clear, making $100 billion the relevant measure. The available data shows that as of December 2011 a single entity had aggregate gross notional positions from bought and sold credit protection exceeding $100 billion, four had aggregate gross notional single-name credit default swap positions exceeding $50 billion, and 12 had aggregate gross notional single-name credit default swap positions exceeding $25 billion. See CDS Data Analysis at table 10. Making allowances for certain entities that may determine, due to internal policies or other reasons, that they need to conduct this analysis and cannot rely on the calculation safe harbor we also are adopting, we believe that it is reasonable to assume that entities with aggregate PO 00000 Frm 00140 Fmt 4701 Sfmt 4700 Although some commenters noted concerns about the complexity of the major participant calculation,1530 commenters did not appear to directly question the Proposing Release’s perentity cost estimates.1531 After further gross notional single-name credit default swap positions exceeding $25 billion may identify a need to perform the major participant analysis. (In the Proposing Release, we stated that based on our understanding of the market, we thought that fewer than ten entities had security-based swap positions of a size to necessitate performing the calculations to determine whether they meet those thresholds. See Proposing Release, 75 FR at 80207–08.) We believe, moreover, that the estimate that 12 entities will perceive a need to perform this analysis in practice may overstate the number of entities that reasonably will find it necessary to perform the major participant analysis, given that only four entities had $25 billion or more of aggregate gross notional single-name credit default swap positions arising from the selling of credit protection. See id. As discussed above, moreover, we believe that fewer than five entities ultimately may be required to register as major security-based swap participants. See part VIII.A.2.d.i.C, supra. Finally, we note that this estimate may also overstate the size of positions held by individual legal entities, thus further overstating the number of legal entities that have security-based swap positions of such a size as to potentially trigger major participant status. This is because the data in the analysis at times aggregates multiple affiliated accounts—which may reflect the legal entities that are counterparties to the security-based swap—at the parent level. While such aggregation is appropriate for these purposes given that parents may be deemed to be major participants by virtue of security-based swap positions that they guarantee, the aggregation in fact may tend to overstate the extent to which a legal entity bears credit risk in connection with security-based swaps. To the extent that an entity’s security-based swap transactions are not cleared or associated with the posting of variation margin, security-based swap positions of $20 billion may lead to sufficient potential future exposure to cause the entity to be a major participant. As we have noted, we believe that few if any entities with significant securitybased swap positions will have a significant number of such transactions. Even then, the data indicates that only a total of 32 entities have notional credit default swap positions in excess of $10 billion. See CDS Data Analysis at table 10 (showing that 32 entities have aggregate gross single-name credit default swap positions of $10 billion or greater). 1530 E.g., letter from WGCEF II (addressing technical complexity of the proposed major participant calculations). 1531 Based on industry discussions, in the Proposing Release we estimated that those 10 entities would incur one-time programming costs of approximately $13,444 per entity, or $134,440 in total, and that these entities would incur annual ongoing costs of $7,260 per entity, or $72,600 in total. See Proposing Release, 75 FR at 80207–08, nn.183–86 and accompanying text (providing a summary of the methodology used to estimate these costs). The hourly cost figures in the Proposing Release for the positions of Compliance Attorney, Compliance Manager, Programmer Analyst, and Senior Internal Auditor were based on data from SIFMA’s Management & Professional Earnings in the Securities Industry 2009. For purposes of the cost estimates in this release, we have updated these figures with more recent data as follows: the figure for a Compliance Attorney is $322/hour, the figure for a Compliance Manager is $279/hour, the figure for a Programmer Analyst is $196/hour, and the figure for a Senior Internal Auditor is $198/ E:\FR\FM\23MYR2.SGM 23MYR2 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES2 consideration, however, we are modifying that estimate, in that we believe that the annual per-entity costs associated with the assessment will amount to $15,268, and the annual onetime per-entity costs associated with the assessment will amount to approximately $13,692.1532 The total industry-wide assessment costs associated with the major participant definition, given our expectation that 12 entities will need to engage in this analysis, is $183,216 for annual costs and $164,304 for annual one-time costs.1533 hour, each from SIFMA’s Management & Professional Earnings in the Securities Industry 2011, modified by SEC staff to account for an 1800hour work-year and multiplied by 5.35 to account for bonuses, firm size, employee benefits, and overhead. We have also updated the Proposing Release’s $450/hour figure for a Chief Financial Officer, which was based on data from 2010. Using the consumer price index to make an inflation adjustment to this figure, we have multiplied the 2010 estimate by 1.03 and arrived at a figure of $464/hour for a Chief Financial Officer in 2011. Incorporating these new cost figures, the updated one-time programming costs based upon our assumptions regarding the number of hours required in the proposing release would be $13,692 per entity, or $136,920 in total, and the annual ongoing costs would be $7,428 per entity, or $74,280 in total. 1532 This revision in part is based on the addition of an ongoing cost of a Programmer Analyst who we estimate would spend an additional 40 hours annually on software maintenance attributable to the modifications made to an automated system to undertake these tests. We further estimate that the hourly wage of a Programmer Analyst would be approximately $196. The $196/hour figure for a Programmer Analyst is from SIFMA’s Management & Professional Earnings in the Securities Industry 2011, modified by SEC staff to account for an 1800hour work-year and multiplied by 5.35 to account for bonuses, firm size, employee benefits, and overhead. Based on these assumptions, we estimate these additional costs as $7,840 per year per entity and $94,080 per year for all entities as follows: (Programmer Analyst at $196 per hour for 40 hours) × (12 entities) = $94,080. 1533 These adjustments do not materially change the estimated costs associated with performing these calculations. To the extent that additional entities perceive a need to perform the major participant calculations provided by the rules, notwithstanding a relatively low position in security-based swaps, these costs would differ. For example, if we assume that 32 entities will perceive the need to conduct the major participant analysis, see note 1529, supra, initial legal costs will total approximately $960,000 (based on the per-entity cost estimate of $30,000); one-time industry-wide costs would total approximately $440,000 (based on the per-entity cost estimate of $13,692); and annual industry-wide costs would total approximately $490,000 (based on the perentity cost estimate of $15,268 addressed below). At the extreme, available data indicates that 1,188 participants have single-name credit default swap positions in the security-based swap market (excluding ISDA-recognized dealers and ICE Trust). See CDS Data Analysis at table 10, To the extent that none of these 1,188 entities avail themselves of the calculation safe harbor we are adopting, and that all of them engage in the full major participant analysis, then there potentially will be initial legal costs of approximately $35.6 million (based on the per-entity cost estimate of $30,000), one-time VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 We believe that these estimates also address the assessment costs under the ‘‘substantial counterparty exposure’’ test. Because credit default swaps may be expected to constitute the bulk of the likely security-based swap market, it is possible that participants in the market may be more likely to have a ‘‘substantial position’’ in debt-related security-based swaps than they would be to meet this second test. Nonetheless, we conservatively estimate that the same approximately 12 entities would engage in the ‘‘substantial counterparty exposure’’ calculation as would undertake the ‘‘substantial position’’ calculation.1534 Given the link between this rule and the ‘‘substantial position’’ calculations, however, we do not anticipate that the ‘‘substantial counterparty exposure’’ test would create incremental costs additional to those associated with the definition of ‘‘substantial position.’’ 1535 We thus believe that the estimate of assessment costs in connection with the ‘‘substantial position’’ analysis (consisting of one-time programming costs of approximately $13,692 per entity, and annual costs of $15,268 per entity) also adequately addresses the costs of assessment under this statutory test.1536 industry-wide costs of approximately $16.3 million (based on the per-entity cost estimate of $13,692), and annual industry-wide costs of approximately $18.1 million (based on the per-entity cost estimate of $15,268 addressed below). In practice, however, we think that the estimates for 12 entities more fairly assesses the relevant costs for the reasons discussed above. See note 1529, supra. In our view, a large number of participants in the market have notional security-based swap positions low enough to permit them to conclude that they do not have to engage in the relevant calculations. See id. 1534 See part VIII.A.3.b.i.A, supra. These costs would differ if additional entities perceive a need to perform the major participant calculations provided by the rules, notwithstanding a relatively low position in security-based swaps. Commenters have taken the view that more than 10 entities may identify a need to perform the requisite calculations. As already noted, based on the analysis of 2011 transaction data, we have revised this estimate upward to 12 entities, though we believe that the actual number is likely to be smaller. In any event, these concerns should be addressed by the calculation safe harbor that we are adopting as part of these final rules. 1535 See Proposing Release, 75 FR at 80209. 1536 We note that higher cost estimates have been used for purposes of the ‘‘major swap participant’’ definition under the CEA. We expect, however, that the entities that may have security-based swap positions of a size that could lead them to be major participants likely would have businesses that are financial in nature (rather than being non-financial entities that use security-based swaps as part of their commercial activities). As such, we would expect those entities to generally be cognizant of, or in a good position to obtain information about: their uncollateralized exposure with counterparties (to the extent that those financial entities have any material amount of uncollateralized exposure); the total notional amount of their security-based swap PO 00000 Frm 00141 Fmt 4701 Sfmt 4700 30735 At the same time, upon further consideration we believe these rules also may impose certain interpretive costs, including those related to obtaining legal counsel, on market participants. Given the size and complexity of the entities that may find it necessary to analyze their status under the major participant definition, we believe that it is reasonable to conclude that at least some entities with security-based swap positions that approach the major participant thresholds are likely to seek legal counsel for interpretation of various aspects of the rules pertaining to the major participant definition. The costs associated with obtaining such legal services would vary depending on the relevant facts and circumstances, including the size and complexity of the person’s security-based swap positions, and the extent to which these interpretations may be germane to whether the entity ultimately is deemed to be a major participant. We believe, however, that $30,000 represents a reasonable estimate of the upper end of the range of the costs of obtaining the services of outside counsel in undertaking the legal analysis of the entity’s status as a major participant.1537 positions; the notional amount of those positions that are subject to central clearing or daily mark-tomarket margining; and the extent to which those positions are in-the-money or out-of-the-money (for purposes of calculating the netting discount to the potential future exposure calculation). We also expect that security-based swaps will be used less frequently for hedging purposes than swaps. See, ´ e.g., Bernadette A. Minton, Rene Stulz & Rohan Williamson, ‘‘How Much Do Banks Use Credit Derivatives to Hedge Loans?,’’ 35 J. Fin. Serv. Res. 1 (2008) (noting that the ‘‘net notional amount of credit derivatives used for hedging of loans in 2005 represents less than 2% of the total notional amount of credit derivatives held by banks’’). Accordingly, there is reason to believe that the costs of calculation associated with the ‘‘major securitybased swap participant’’ assessment will be lower than the costs associated with the ‘‘major swap participant’’ assessment. 1537 The average cost incurred by such entities in connection with outside counsel is based on staff experience in undertaking legal analysis of status under federal securities laws. The staff believes that costs associated with obtaining outside legal counsel relating to such determinations range from $20,000 to $30,000 depending on the complexity of the entity. We believe that an entity that maintains security-based swap exposures of the size that would necessitate undergoing this analysis will generally be large, complex financial organizations. We also recognize that, while the major participant test may be more objective and quantitative than the dealer test (and therefore require a less involved legal analysis), the test is novel (unlike the core dealer test, which draws on the dealer-trader distinction familiar to many market participants) and, as such, may cause entities to incur additional costs in interpreting and applying the test. Together, these factors lead us to estimate that entities undertaking this analysis will incur legal costs at the upper end of our estimated range. The use of inside counsel in lieu of outside counsel would reduce this upper bound. E:\FR\FM\23MYR2.SGM Continued 23MYR2 30736 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations Based on the conclusion that no more than 12 entities have security-based swap positions that they would face enough of a possibility of being a major participant that they would need to engage in such analysis,1538 we estimate that the total legal costs associated with evaluating the various elements of this definition may approach $360,000.1539 ii. Calculation Safe Harbor mstockstill on DSK4VPTVN1PROD with RULES2 We also are adopting Exchange Act rule 3a67–9, which provides a safe harbor from the definition of ‘‘major security-based swap participant’’ for market participants whose securitybased swap positions fall below certain thresholds. This safe harbor responds to concerns raised by commenters that— based on internal compliance policies and procedures, out of an abundance of caution, or for other reasons—certain entities may feel compelled to perform the full major participant calculations even if their security-based swap positions did not rise to a level near the thresholds in the ‘‘substantial position’’ or ‘‘substantial counterparty exposure’’ definitions.1540 The legal costs associated with the major participant analysis may include, among other things, legal advice with respect to whether an affiliate with which the entity enters into securitybased swap transactions qualifies as an ‘‘affiliate’’ under rule 3a67–3, whether particular transactions fall within the definition of security-based swap, whether certain types of security-based swap transactions fall within the debt-based securitybased swap or other security-based swap category, whether the entity falls within the definition of ‘‘financial entity,’’ and whether certain types of security-based swap transactions qualify for the hedging exclusion under the substantial exposure tests. We recognize that the complexity of the analysis required for any of these issues may vary considerably across entities, depending on each entity’s individual business model. The major participant test is based on daily average exposures over the course of the previous quarter, and, as discussed further below, some number of entities may decide to establish a system that will monitor their exposure on an ongoing basis. To the extent that the entity does so, we expect that any initial legal analysis should permit the entity to make determinations about these calculations on an ongoing basis. As such, we assume that any additional costs associated with outside counsel with respect to ongoing monitoring of positions would be negligible. 1538 See note 1529, supra. 1539 If 32 entities were to perform this analysis, as discussed above, the market-wide legal costs associated with the analysis would total $960,000. 1540 In particular, some commenters challenged the assumption in the Proposing Release that only approximately 10 entities had security-based swap positions large enough to lead them to engage in the major participant calculations. Those commenters took the view that certain entities with smaller security-based swap positions would perceive a need to conduct the relevant calculations on a daily basis even if they are not reasonably likely to be major participants, and, to address that concern, requested a safe harbor from having to perform the major participant calculations. See letters from SIFMA AMG I and Vanguard. VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 The safe harbor makes use of three alternative tests. The first of these is based on the maximum possible uncollateralized exposure under the applicable credit support arrangements, and on the notional amount of a participant’s security-based swap positions. The two other alternatives entail monthly calculations, with the second alternative using calculations based on the maximum possible uncollateralized exposure under the applicable credit support arrangements and monthly adaptations of the substantial position and substantial counterparty exposure calculations, and the third alternative using calculations based on uncollateralized exposure and a modified version of the potential future exposure calculation. Although the provisions of the safe harbor we are adopting do not mirror the safe harbors suggested by commenters,1541 the inclusion of this safe harbor should help address commenter concerns regarding entities with small positions that would nonetheless feel compelled (due to their own internal compliance programs, or otherwise) to undertake the major participant calculations. While recognizing that more liberal standards for this safe harbor 1542 could further mitigate costs of assessing major participant status, the safe harbor may be expected to help some entities avoid the costs associated with assessing if they are major participants. It is not clear how many firms may ultimately seek to rely on the calculation safe harbor.1543 Participants in the security-based swap market vary greatly in the size of their positions, and may be expected to vary greatly in the complexity of their operations, and in the requirements of their internal compliance and risk management policies. As a result, it is possible that some firms with relatively small positions may choose to undertake the safe harbor analysis while significantly larger firms may determine that such analysis is unnecessary. The first of the three alternatives within the safe harbor would be based 1541 See part IV.M, supra (discussing rationale for safe harbor). 1542 See part IV.M.2, supra (discussing rationale for final rule implementing safe harbor). 1543 As noted previously in part VIII.A.3.b.i.B, supra, we expect that approximately 12 entities may have security-based swap positions in an amount such that it may be reasonably necessary for them to undertake the major participant calculations. To the extent, however, that entities with smaller positions nonetheless identify a reason to perform a major participant analysis, the safe harbor would permit those entities to conclude that they are not major participants without the need to engage in the full set of calculations otherwise anticipated by the rules. PO 00000 Frm 00142 Fmt 4701 Sfmt 4700 on the maximum possible uncollateralized exposure under the applicable credit support arrangements, and on the notional amount of a participant’s security-based swap positions. We believe that as a matter of good business practice large participants in the security-based swap market already would be aware of that information, making the test relatively simple to implement. We also note that available data indicates that 1,073 of the 1,188 entities with single-name credit default swap positions (other than ISDA-recognized dealers and ICE Trust), have notional positions less than $2 billion, potentially making the first test of the safe harbor available to them.1544 The other alternatives within the safe harbor would also entail monthly calculations, with such calculations for the second alternative based on the maximum possible uncollateralized exposure under the applicable credit support arrangements and monthly adaptations of the substantial position and substantial counterparty exposure calculations, while the monthly calculation for the third alternative is based on uncollateralized exposure and a modified version of the potential future exposure calculation. Both of these would entail additional analysis beyond current industry practices, causing entities to incur higher costs than the first alternative, but no more than would be required to complete the full major participant test.1545 1544 See CDS Data Analysis at table 10. expect that the outer bounds of the assessment costs associated with this safe harbor will be no higher than the one-time costs associated with conducting the major participant analysis, given that, to the extent that an entity determines that performing the safe harbor analysis is more expensive, it would likely choose to perform the less-costly major participant analysis. As such, the upper bound of costs associated with the safe harbor is not likely to exceed our estimates of the costs associated with the full major participant analysis, and should in fact be considerably lower. We estimate that one-time costs associated with establishing a system to identify and monitor security-based swap positions, as may be necessary to perform the monthly assessments anticipated by two of the three alternative tests that comprise the safe harbor, would be similar to the one-time costs associated with the major participant analysis, and that, therefore, up to 1,188 entities may incur onetime industry-wide costs of approximately $16.3 million. See note 1533 and accompanying text, supra. The annual costs associated with monthly assessment would be expected to be less than the costs of daily assessment, and $9.1 million— approximately half of the estimated $18.1 million estimated annual costs if all 1,188 entities found it necessary to perform the daily assessment required by the substantial position test (see id.)—may be a reasonable estimate of that amount, given the relative simplicity of the test and the less frequent assessments that it requires. In practice, however, we believe that the costs associated with this safe harbor will be less because we expect that far fewer entities would perceive a need to rely on these aspects of the safe harbor, particular given that, as 1545 We E:\FR\FM\23MYR2.SGM 23MYR2 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations iii. Additional Issues Related to the Major Participant Analysis A. ‘‘Major’’ Categories of Security-Based Swaps mstockstill on DSK4VPTVN1PROD with RULES2 Exchange Act rule 3a67–2 sets forth two ‘‘major’’ categories of security-based swaps for purposes of the first and third tests of the major participant definitions—one consisting of debtbased security-based swaps and the other consisting of other security-based swaps (including equity swaps). These categories are consistent with our understanding of the ways in which those products are used, as well as market statistics and current market infrastructures,1546 and we believe it is appropriate that those market categories be reflected in the major participant definition. The consistency of the rule with current market practices should help mitigate any assessment costs incurred by market participants. Moreover, we do not expect that market participants will be required to incur costs to determine the major category with respect to a large majority of their security-based swap positions, given that the vast majority of security-based swaps likely fall within the debt-based security-based swap major category. Also, in adopting the final rules we also have provided additional guidance related to the noted above, approximately 1,073 entities have aggregate gross notional single-name credit default swap positions under $2 billion. See note 1544 and accompanying discussion, supra. We note that our analysis of the safe harbor in connection with the ‘‘major security-based swap participant’’ definition differs from that of the CFTC with regard to the ‘‘major swap participant’’ safe harbor. This, in part, reflects the differences between the markets for swaps and security-based swaps. We also note our expectation that many of the entities that may opt to avail themselves of the safe harbor likely would have businesses that are financial in nature (rather than being non-financial entities that use security-based swaps as part of their commercial activities). As such, we would expect those entities to generally be cognizant of, or in a good position to obtain information about: Their maximum potential uncollateralized exposure with security-based swap counterparties; the total notional amount of their security-based swap positions; the notional amount of those positions that are subject to central clearing or daily mark-tomarket margining; and the extent to which those positions are in-the-money or out-of-the-money (for purposes of calculating the netting discount to the potential future exposure calculation). Other nonfinancial entities seeking to take advantage of the safe harbor may minimize their costs by utilizing whichever safe harbor option may be expected to most closely align with the security-based swap information that readily is available to such entities. 1546 In particular, the major categories of securitybased swaps adopted in these final rules are consistent with how bank derivatives data is presented by the Office of the Comptroller of the Currency, as well as with categories used by derivatives market infrastructure such as The Depository Trust & Clearing Corporation. See part IV.A.3, supra. VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 categorization of certain types of instruments in response to commenter concerns. Nonetheless, given the factspecific nature of any such assessment, we recognize that some entities may seek the opinion of legal counsel as to how specific security-based swap transactions should be categorized for purposes of this rule (such as legal costs associated with having counsel analyze a particular security-based swap to determine its status under these rules, to the extent that certain types of securitybased swaps with complex, novel or bespoke structures are not readily categorized within one of the two identified major categories). We expect that these costs would be included in the estimated costs of seeking outside legal counsel in connection with the major participant analysis, as described above.1547 B. Definition of ‘‘Hedging or Mitigating Commercial Risk’’ Exchange Act rule 3a67–4 defines the term ‘‘hedging or mitigating commercial risk’’ for purposes of the exclusion from the first major participant test. Among other aspects, this rule makes use of an ‘‘economically appropriate’’ standard, and sets forth exclusions for securitybased swap positions that have a speculative or trading purpose. As discussed above, we carefully consider alternative approaches suggested by some commenters, including the suggestion that the definition should encompass positions that hedge speculative or trading positions and the suggestion that the definition should incorporate a ‘‘congruence’’ standard.1548 We concluded, however, that these approaches are inconsistent with the focus of the statutory text, which is on ‘‘commercial risk,’’ and in adopting this definition we have sought to set forth criteria that reasonably distinguish hedging positions from other positions. We believe that the approach we are adopting, which seeks to exclude positions that hedge commercial risk without also excluding other types of positions, is necessary and appropriate in light of the statute.1549 1547 Entities may also incur programming and other costs related to recording the classification of their security-based swap transactions in systems designed to monitor current exposure and potential future exposure, but we expect these costs to be one component of entities’ overall system costs relating to its substantial position calculations, which we discuss in further detail above. See part VIII.A.3.b.i.B, supra. 1548 See parts IV.C.5.a and IV.C.5.b, supra (discussing rationale for excluding positions hedging speculative and trading positions from the definition). 1549 See parts IV.C.3 and IV.C.5, supra. PO 00000 Frm 00143 Fmt 4701 Sfmt 4700 30737 Some market participants may be expected to incur costs in connection with determining whether certain security-based swap positions fall within this hedging exclusion.1550 Any such costs of analyzing the status of particular security-based swaps as a hedge of commercial risk would reflect the unique character of individual positions and the business purpose associated with the position. Such costs may be particularly relevant for security-based swaps of a more complex nature, or for security-based swaps that introduce some degree of basis risk in connection with the hedge. Because of the facts-and-circumstances nature of this analysis,1551 we believe that some entities may seek the opinion of legal counsel as to whether certain transactions qualify for the commercial hedging exclusion at the time they conduct their initial analysis, and these costs would likely be encompassed within the estimated costs of legal services related to the major participant definition.1552 C. Definitions of ‘‘Financial Entity’’ and ‘‘Highly Leveraged’’ Exchange Act rule 3a67–6 defines the term ‘‘financial entity’’ for purposes of the third major participant test. This definition is largely consistent with the statutory ‘‘financial entity’’ definition used in Title VII’s exception from mandatory clearing for commercial endusers.1553 However, in response to commenter concerns, the final rules exclude centralized hedging facilities from the ‘‘financial entity’’ definition (in a way that itself is consistent with that Title VII hedging exception).1554 1550 We have incorporated provisions into the final rule designed to provide guidance to market participants as to which types of security-based swap positions could be expected to fall within this exclusion. This release also provides further guidance as to the scope of the exclusion. 1551 The transaction-related costs of making a hedging determination would apply only to entities with security-based swap positions that are near to or exceed the substantial position threshold prior to taking advantage of the hedging exclusion. This may be expected to mitigate costs associated with making this determination. 1552 Separately, the proposed rule defining this term would have included certain documentation and assessment conditions that commenters stated could lead to significant costs. Commenters expressed concerns regarding the application of these conditions and the associated costs. As discussed previously in this release, we have determined not to include these conditions in the final rule. See part IV.C.5.d, supra. 1553 See Exchange Act section 3C(g). 1554 In addition, we considered, but do not incorporate, some commenters’ suggestion that ‘‘financial entity’’ be defined more narrowly, such as by excluding employee benefit plans. See part IV.F.3.a, supra, (discussing rationale for final rule defining ‘‘financial entity’’). E:\FR\FM\23MYR2.SGM 23MYR2 30738 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES2 Although particular market participants may incur costs in connection with determining whether they fall within the ‘‘financial entity’’ definition, we believe that such costs would be minimal in light of the objective nature of the definition, and its consistency with the use of the term elsewhere in Title VII. We also recognize that entities may seek the opinion of legal counsel as to whether the entity falls within the scope of this ‘‘financial entity’’ definition, but believe that these costs would likely be encompassed within the estimated costs of legal services related to the major participant definition. Exchange Act rule 3a67–7 defines the term ‘‘highly leveraged,’’ also for purposes of the third statutory major participant test. After considering commenters’ views, the final rule defines that term based on a 12 to 1 leverage ratio, as discussed in greater detail above. In adopting this leverage ratio, we also modify the proposed method of calculating leverage in certain respects,1555 but conclude that it would not be appropriate to provide special methodologies for insurers to measure leverage.1556 It is possible that certain market participants will incur costs in connection with determining whether they are ‘‘highly leveraged’’ for purposes of the major participant definitions. In part, we believe that those costs are mitigated by the fact that the final rules identify ‘‘highly leveraged’’ entities based on a ratio of liabilities to equity, which we expect are simpler for entities to implement than alternative methods for measuring leverage, such as risk-adjusted methods. We recognize that the unavailability of an alternative method of calculation for insurers may have the effect of increasing certain insurers’ cost of calculating leverage for purposes of determining whether they fall within the major participant definition, to the extent that insurers have security-based swap positions that are close enough to the relevant thresholds that they have to perform the required calculations.1557 1555 See part IV.F.3.b, supra (addressing leverage ratio calculation for certain employee benefit plans). 1556 See note 1107, supra (providing special rules related to the calculation of leverage for certain employee benefit plans). 1557 We note that many large insurers of the type that maintain security-based swap positions in an amount that would require them to perform the major participant calculations may be publicly traded companies, in which case they would already calculate their financial statements according to GAAP for purposes of public disclosure, and thus would not incur additional costs due to our decision not provide special methodologies for insurers to calculate their leverage. We also expect that the concerns of many smaller insurers that are not publicly traded and VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 We believe, however, that a uniform approach to defining ‘‘highly leveraged’’ is appropriate here given that the large insurance firms that are most likely to meet the major participant definition would be expected already to use GAAP in preparing their financial statements. This should mitigate any additional costs arising from the absence of an alternative calculation method for insurers. D. Limited Designations of Major Participants Exchange Act rule 3a67–1 in part implements the portion of the ‘‘major security-based swap participant’’ definition that provides for limited purpose registration of major participants. The rule sets forth a presumption that a person that acts as a major security-based swap participant in general will be deemed to be a major participant with regard to all of its security-based swaps, unless the SEC limits its designation. In adopting this rule we have considered the alternative, suggested by some commenters, of permitting persons to more broadly take advantage of limited major participant designations.1558 Our decision to use thus may not use GAAP will be addressed by our inclusion of the safe harbor for major participant calculations. In addition, publicly available information regarding insurer use of derivatives suggests that the potential costs to insurers arising from the definition of ‘‘major security-based swap participant’’ may be negligible. As of the end of 2010, U.S. insurers as a whole had enter into roughly $33.5 billion in notional amount of credit default swaps (not distinguishing between credit default swaps that fall within the ‘‘security-based swap’’ definition and those that are ‘‘swaps’’). See National Association of Insurance Commissioners, ‘‘Insights into the Insurance Industry’s Derivatives Exposure’’ (available at https://www.naic.org/ capital_markets_archive/110610.htm) (stating that life insurers had entered into roughly $27.1 billion of that amount, and that property and casualty insurers had entered into roughly $6.4 billion of that amount). Even if those positions were concentrated within single entity, they would not necessarily lead that entity to exceed the thresholds that could cause it to be a major participant, see note 914, supra, suggesting that, given the likely distribution of these positions across a significant number of insurers, few or no insurers may have exposures that approach the thresholds. 1558 Such an approach may be expected to lower the cumulative costs that major participants would incur in determining whether to seek a limited designation. For example, a default presumption in favor of the availability of limited designations may be expected to reduce the costs that certain entities would incur to determine that they could take advantage of limited designation relief, and thus reduce the costs associated with an entity determining whether it qualifies for such relief, such as the costs of hiring outside legal counsel to undertake this analysis to determine that they could take advantage a limited designation relief. A default presumption in favor of limited designations also would be expected to reduce costs in connection with the registration process for PO 00000 Frm 00144 Fmt 4701 Sfmt 4700 this presumption takes into account the difficulty of separating a major participant’s positions taken under its limited purpose designation from other of its positions for purposes of compliance, and the challenges of applying major participant regulatory requirements to only a portion of the entity’s security-based swap activities. The presumption further reflects the statutory definition’s discretionary language in connection with the potential for limited designations, and the need for persons subject to limited designations to be able to comply with the statutory and regulatory requirements applicable to major participants.1559 Certain persons who satisfy the major participant definition may incur costs in determining whether to seek a limited designation. Consistent with the discussion above, in general we believe that such costs would affect no more than 12 entities.1560 These costs could, however, vary significantly depending on the structure or other characteristics of an entity’s business. E. Exclusion of Inter-Affiliate SecurityBased Swaps Exchange Act rule 3a67–3 provides that security-based swap transactions between majority-owned affiliates will be excluded for purposes of the substantial position test.1561 We have concluded that majority ownership represents an alignment of interests appropriate to justify an inter-affiliate exclusion.1562 Moreover, we note that a majority-ownership test should, given its objective nature, impose fewer assessment costs on market participants than a more subjective common control test. Some market entities may incur costs in connection with determining whether entities seeking limited designation status, as discussed above. See part VIII.A.2.d.ii.A, supra. 1559 See part IV.N.3, supra (discussing limited designation principles applicable to major participants). We note that the discussion of limited designation of ‘‘swap dealers’’ under the CEA generally seeks to quantify the costs associated with applications for limited designations. However, we believe that the costs of applying for a limited designation are dependent upon the application process for this type of registration category. As noted previously, the SEC expects to address the limited designation application process for major security-based swap participants in separate rulemakings. See id. As such, we believe that the costs associated with major security-based swap participant limited designation applications under the Exchange Act are more appropriately addressed in the context of that separate rulemaking. 1560 See note 1529, supra. 1561 This exclusion also applies to the ‘‘substantial counterparty exposure’’ analysis. 1562 See part IV.G.2, supra (discussing rationale for the approach we are adopting, and considering alternative approaches). E:\FR\FM\23MYR2.SGM 23MYR2 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations particular security-based swap positions may be excluded from the major participant analysis by virtue of the inter-affiliate exclusion. It is possible that such costs could be incurred by any of the approximately 12 entities that we believe reasonably may have to engage in the major participant calculations.1563 We believe that any costs arising out of such an analysis would be encompassed within the $30,000 estimated for legal services related to the major participant definition as a whole. mstockstill on DSK4VPTVN1PROD with RULES2 F. Timing Requirements, Reevaluation Period and Termination of Status Exchange Act rule 3a67–8 specifies the time at which an entity that satisfies the major participant tests would be deemed to be a ‘‘major security-based swap participant,’’ and also addresses the time at which an entity’s status as a major security-based swap participant would be terminated. In adopting this rule we have considered alternatives that would lead to slower entry and faster exit from major participant status, and we believe that the approach that we are adopting provides a reasonable amount of time for registration based on the proposed registration process, will appropriately help to avoid applying major participant requirements to entities that meet the major participant criteria for only a short time due to unusual activity, and will avoid the prospect of persons moving in and out of major participant status overly frequently.1564 Persons falling within the major participant definitions will incur costs in connection with the registration process,1565 and it is possible that alternative timing approaches could allow such persons to register at a more deliberate pace, potentially reducing the associated costs.1566 Such cost differences may affect the up-to-twelve entities that we believe reasonably may have to engage in the major participant calculations. Moreover, altering the timing requirements may not significantly decrease costs associated with registration because in all cases we would expect the same preparatory 1563 The data underlying this assessment already excludes certain inter-affiliate credit default swaps. 1564 See part IV.L.3, supra (discussing rationale for the final rules addressing timing, reevaluation and termination). 1565 Registration Proposing Release, 76 FR at 65814–65818. 1566 For example, it is possible that an entity may perceive the steps associated with the registration process as requiring it to take additional steps to complete the registration process within the time frame we are adopting, whereas a longer time period could have enabled such an entity to avoid those costs. VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 actions to be taken, and we believe that the final rules provide sufficient time for entities to perform the activities necessary for compliance.1567 4. Consideration of Burden on Competition, and Promotion of Efficiency, Competition, and Capital Formation Section 3(f) of the Exchange Act requires the SEC, whenever it engages in rulemaking and is required to consider or determine whether an action is necessary or appropriate in the public interest, to consider, in addition to the protection of investors, whether the action would promote efficiency, competition, and capital formation.1568 In addition, section 23(a)(2) of the Exchange Act 1569 requires the SEC, when adopting rules under the Exchange Act, to consider the impact such rules would have on competition. Section 23(a)(2) of the Exchange Act also prohibits the SEC from adopting any rule that would impose a burden on competition not necessary or appropriate in furtherance of the purposes of the Exchange Act. We are adopting these rules and interpretive guidance pursuant to authority under section 712(d) of the Dodd-Frank Act, which requires the Commissions to further define several terms, including ‘‘security-based swap dealer’’ and ‘‘major security-based swap participant.’’ 1570 In the Proposing Release, we stated that we preliminarily believed that the proposed Exchange Act rules would not result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act, that they would not significantly affect capital formation, and that they would improve efficiency. We requested comment on each of these issues, and certain commenters raised concerns that overbroad definitions would lead to undue competitive impacts.1571 1567 Specific costs associated with the registration process will be addressed by the SEC in final rules related to the registration of major security-based swap participants that have not yet been adopted. However, we expect any additional costs arising from the timing provisions of this rule to be insignificant. 1568 15 U.S.C. 78c(f). 1569 15 U.S.C. 78w(a)(2). 1570 The SEC is also acting pursuant to its rulemaking authority provided by Exchange Act sections 3 and 23(a). 1571 See, e.g., letters from Representatives Bachus and Lucas (‘‘Casting an overly-broad net in defining these terms could force some smaller participants to leave the marketplace as a result of increased costs, or eliminate certain types of contracts used for hedging.’’), SIFMA—Regional Dealers (stating that the proposed de minimis exception ‘‘is unnecessarily narrow, will discourage smaller dealers from competing in the market and will limit PO 00000 Frm 00145 Fmt 4701 Sfmt 4700 30739 In adopting these final rules, we recognize that the most significant impact of the dealer and major participant definitions will derive from those definitions’ role in implementing Title VII, particularly given the significant impacts that Title VII will have on the security-based swap market. Many of these impacts may be expected to be positive, because Title VII imposes, among other measures, requirements that may be expected to promote safety and soundness, transparency, and competition within the security-based swap market. We recognize, however, that regulation also can pose costs that have negative impacts on the markets. In adopting these definitional rules and interpretations, moreover, we have sought to fairly reflect the statutory definitions and their underlying intent. Given the link between these definitional rules and interpretations and the Title VII framework, the scope of the definitions will affect the ultimate regulatory benefits and costs that will accompany the full implementation of Title VII. Definitions that capture more entities will tend to promote the Title VII benefits, but will also risk increasing the accompanying costs. Definitions that capture fewer entities may be expected to lead to the converse result. a. Competitive Impacts As noted above, the SEC is required to consider the effect of these rules and interpretations on competition. The SEC also is prohibited from adopting any rule that would impose a burden on competition that is not necessary or appropriate in furtherance of the purposes of the Exchange Act. Because these definitional rules and interpretations will help determine which entities within the market are subject to the Title VII requirements that govern dealers and major participants, they may also affect competition within the security-based swap market. In enacting Title VII, Congress set forth a regulatory framework for OTC derivatives; security-based swaps represent one segment of the overall OTC derivatives market. Within the security-based swap market, dealers compete for business from counterparties, while non-dealers that participate in the market use securitybased swaps for purposes that can the availability of efficient and cost-effective intermediation services to small- and medium-sized organizations’’) and Midsize Banks (stating that a reduction in small dealers due to an overly narrow de minimis exception would ‘‘curtail economic development going forward and would leave endusers less options for hedging risks with community and smaller regional dealers’’). E:\FR\FM\23MYR2.SGM 23MYR2 30740 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES2 include speculation and hedging. To date, security-based swaps primarily have traded in the over-the-counter market, and have not been subject to comprehensive regulation in the U.S. We understand that entities engaged in dealing activity within this market facilitate the vast majority of securitybased swap transactions.1572 Dealing activity within the market also is highly concentrated.1573 This concentration in large part appears to reflect the fact that larger entities possess competitive advantages in engaging in over-thecounter security-based swap dealing activities, particularly with regard to having sufficient financial resources to provide potential counterparties with adequate assurances of financial performance.1574 As such, it is reasonable to conclude that there are high barriers to entry in connection with security-based swap dealing activity.1575 At the same time, commenters have noted that some entities engage in smaller volumes of security-based swap dealing activity. Some small and midsize banks, for example, routinely provide such services involving relatively small notional amounts to their customers.1576 Although these 1572 Data from the credit default swap trade information warehouse operated by DTCC indicates that as of the week ending October 7, 2011, singlename credit default swaps involving two counterparties that are not dealers (as identified by DTCC) constitutes roughly 0.2 percent of the notional amount of all open positions involving single-name credit default swaps (amounting to $24.6 billion gross notional out of a total of $15.2 trillion gross notional). Conversely, single-name credit default swaps involving two dealers (as identified by DTCC) constitute roughly 74.2 percent of the total notional amount (amounting to $11.3 trillion gross notional out of the $15.2 trillion total). See https://www.dtcc.com/products/derivserv/data/ index.php (as of October 7, 2011). We have no reason to believe that the market for other types of security-based swaps exhibits different amounts of concentration with regard to dealer activity. 1573 As discussed above in the context of the de minimis exception to the security-based swap dealer definition, analysis of available data shows that, under any metric used to screen for dealers in our CDS Data Analysis, over 90 percent of activity in single-name credit default swaps among entities identified as dealers is attributable to the fourteen or fifteen largest of those entities. We have no reason to believe that the concentration of dealing activity involving other types of security-based swaps significantly differs from the concentration of dealers in the single-name credit default swap market. 1574 See Pirrong, note 487, supra, at 17–18 (noting that counterparties seek to reduce risk of default by engaging in credit derivative transactions with well capitalized firms). 1575 See id., at 18–19 (noting lack of success among new entrants into derivatives dealing market due to perception that AAA rating for subsidiary is less desirable than a slightly lower rating for a larger entity, and suggesting that there are ‘‘economies of scale in bearing default risk’’ that may induce ‘‘substantial concentration in dealer activities’’). 1576 See letter from FSR I. VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 relatively smaller dealers in general may not compete directly with the largest dealers (because they service a different segment of the market), they may be expected to play a role in helping certain types of customers (such as customers with a relatively smaller need for security-based swaps) enter into security-based swaps, thus promoting the availability of these products. Fundamentally, in considering the competitive impacts associated with Title VII regulation of dealers and major participants—and hence the competitive impacts associated with the dealer and major participant definitions—we recognize that one consequence of the current concentrated market structure 1577 is the potential for risk spillovers and systemic risk, which can occur when the financial sector as a whole (or certain key segments) becomes undercapitalized. Risk spillovers emerge when losses and financial distress at one firm lead to losses and financial distress for the financial sector as a whole, either through direct counterparty relationships or the deterioration of asset values. As financial distress spreads, the aggregate financial system may become undercapitalized, hindering its ability to provide financial intermediation services. If firms do not internalize this aggregate cost, the financial system may end up holding more risk than its aggregate capital can manage. In enacting Title VII, Congress set forth a framework that will impose new costs and regulatory burdens, including capital, margin, and registration requirements, on persons who act as security-based swap dealers, and on persons whose security-based swap positions are large enough to cause them to be major security-based swap participants. While the substantive rules associated with capital, margin, and registration requirements have yet to be finalized, we have sought to set the dealer and major participant definitions in such a way as to impose the substantive rules on those entities most likely to contribute to an aggregate capital shortfall without imposing unnecessary burdens on those who do not pose similar risks to the market.1578 1577 See, e.g., notes 478 and 485, supra, and accompanying text. 1578 We expect that implementation of Title VII will provide both the SEC and market participants with more information about the business of dealers and major participants, the characteristics of positions they and other market participants hold, the structure of the market, and how each of these have changed under the Title VII framework. For that reason the SEC has directed the staff to report to the Commission on all aspects of the dealer and major participant definitions. See part V, supra. PO 00000 Frm 00146 Fmt 4701 Sfmt 4700 It is reasonable to expect that it is the largest security-based swap entities that are more likely to contribute to an aggregate capital shortfall than smaller participants, as more risk is likely to be concentrated within these entities.1579 As discussed above, persons who fall within the statutory definitions of security-based swap dealer and major security-based swap participant will incur a range of one-time costs and ongoing costs by virtue of that status.1580 Also, as discussed above, market participants may incur costs in connection with determining whether their security-based swap activities or positions will cause them to be dealers or major participants.1581 To the extent the costs associated with these statutorily mandated requirements are relatively fixed or large enough, they may negatively affect competition within the market. This may, for example, lead smaller dealers or entities for whom dealing is not a core business to exit the market, which could cause smaller customers to have less access to the market or to incur higher costs in accessing the market. Such costs might also deter the entry of new firms into the market. If sufficiently high, these costs of compliance may increase concentration among dealers. We also recognize that some market participants may be expected to incur costs in connection with determining their status as a dealer or major participant, but such costs can be expected to be significantly less than the costs associated with the various rules applicable to dealers or major participants. Conversely, certain aspects of Title VII may enhance competition in the market. For example, the business conduct and other requirements of Title VII may enhance the availability of information to market participants. Measures designed to equalize access to information through disclosure requirements should promote participation, which may intensify price competition among dealers, and thus 1579 See Acharya, Pedersen, Philippon, and Richardson, Measuring Systemic Risk (May 2010) (available at https://vlab.stern.nyu.edu/public/static/ SR-v3.pdf) (working paper that derives an empirical measure of a financial entity’s expected contribution to an aggregate capital shortfall that scales with the size of the institution, and that shows using historical data that their measure predicted the risks that emerged during the recent financial crisis). 1580 As discussed above, for example, securitybased swap dealers and major security-based swap participants will have to meet minimum capital and margin requirements, maintain specified business and transaction records and adhere to certain standards of business conduct, along with other obligations. See, e.g., notes 178 to 180, supra. 1581 See part VIII.A.3, supra. E:\FR\FM\23MYR2.SGM 23MYR2 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations may increase participation in the security-based swap market. Other aspects of Title VII, such as rules promoting access of dealers to central clearing facilities, also may be expected to enhance competition in the market. i. Security-Based Swap Dealer Definition mstockstill on DSK4VPTVN1PROD with RULES2 Persons who are deemed to be dealers may be expected to incur costs in connection with the substantive rules applicable to dealers, and to incur comparatively smaller costs in connection with determining whether they fall within the dealer definition. We cannot rule out the possibility that the prospects of these aggregate costs might deter new entrants from engaging in security-based swap activity that potentially could lead them to be dealers.1582 We also cannot rule out the possibility that the imposition of those costs could lead some persons who currently engage in dealing activity involving security-based swaps to lessen or cease that activity. Those effects—if they were to occur—would be expected to reduce competition in the market. Conversely, the application of the Title VII requirements applicable to dealers, such as, for example, the business conduct requirements related to disclosures to counterparties, may be expected to enhance the availability of information to market participants. The resulting reduction in information asymmetries may be expected to promote participation, and therefore competition, in the market. Accordingly, the scope of the rules and interpretations defining security-based swap dealer, including the scope of the de minimis exception to the dealer definition, can be expected to affect competition in the market in a variety of ways.1583 1582 We do think it unlikely that the costs associated with determining an entity’s status, considered on their own, would have any measurable effect on competition. As noted above, we estimate that the cost of making this determination to be $30,000 at most, and likely significantly less for most entities. See note 1537, supra. In other words, the costs would amount to, at most, 0.1 percent of the de minimis threshold, and it is likely that few firms would feel compelled to conduct this analysis until their dealing volume approached the de minimis threshold. 1583 At the same time, it is possible that these additional costs associated with dealer regulation will be comparatively small compared to the existing barriers to entry in the market (particularly the need for resources to provide counterparties with sufficient assurance of performance). Cf. Pirrong, note 487, supra, at 18–19 (noting that firms with smaller balance sheets, relative to largest dealers, ‘‘have largely failed to make major inroads as derivatives dealers despite concerted efforts to do so’’). It thus is possible the incremental costs associated with dealer regulation may not be of the magnitude to cause persons who currently engage VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 As discussed above, in rule 3a71–1 we have codified the statutory definition of security-based swap dealer and provided guidance to interpret the contours of this definition in the context of the dealer-trader distinction. After considering commenters’ views, we believe that this guidance interprets the statute to give effect to the four dealer tests and the ‘‘regular business’’ exclusion in a way that reflects the features of the security-based swap market. This use of the dealer-trader distinction—which parallels the analysis that securities market participants currently use in the context of the Exchange Act’s ‘‘dealer’’ definition—also should help reduce the potential competitive effects associated with the costs that market participants incur to analyze their possible status as a dealer by imposing fewer costs than a more novel approach.1584 Moreover, as discussed above, in rule 3a71–2 we have adopted a de minimis test and thresholds that will impose the costs associated with dealer regulation upon entities that engage in the bulk of dealing activity in the market, without imposing those costs upon persons who account for a small portion of dealing activity (and for which dealer regulation may be accompanied by comparatively modest benefits). We believe this will mitigate some of the potential competitive burdens associated with dealer status that could fall on entities engaged in a smaller amount of dealing activity, without leaving an undue amount of dealing activity outside of the ambit of dealer regulation. As discussed in detail above, we believe we have set the threshold in a way that appropriately considers this risk along with the benefits afforded to smaller entities by a higher threshold. Furthermore, after considering commenters’ views, we believe that this approach strikes a balance that appropriately will implement the transparency, risk, and customer and counterparty protection goals of Title VII. This approach, including the general use of a $3 billion threshold, also can facilitate the initial entrance of dealers into the market, and permit persons to engage in limited dealing in security-based swap dealing activity to exit the market. 1584 As noted above, we have declined to adopt per se exclusions or overly simple tests, even though they might impose fewer assessment costs on market participants conducting the dealer analysis because we do not believe that such exclusions or tests would capture the full range of entities that should be regulated as dealers under Title VII. Moreover, the nature of the tests being adopted are straightforward to implement and rely on information that already should be readily available to market participants. PO 00000 Frm 00147 Fmt 4701 Sfmt 4700 30741 activity that helps smaller entities participate in the market. While we recognize that the lower threshold associated with dealing activity involving ‘‘special entities’’ has the potential to reduce competition to provide dealing services to those entities, we believe that this lower threshold is appropriate to preserve the protections that Title VII affords to those entities. In rule 3a71–1, we also have set forth a presumption that a person that acts as a dealer in the security-based swap market will be a dealer with regard to all of its security-based swaps. We recognize that this presumption may have competitive impacts: on the one hand, by imposing regulatory costs on a wider range of activities, certain entities concentrated in discrete security-based swap segments may face higher costs than they might without the presumption; on the other hand, the presumption suggests a single, uniform baseline for competition across dealers. While these impacts may bear out in a number of ways, we believe that the presumption is appropriate in light of the statutory language and the need to help ensure that security-based swap dealers comply with all applicable legal requirements. In rule 3a71–1, we also have provided an exclusion from dealer status in connection with security-based swaps involving majority-owned affiliated counterparties. To the extent that the scope of this exclusion may have competitive impacts—such as in connection with dealing activity involving affiliates that are not majorityowned, and that hence cannot take advantage of the exclusion—we believe that the exclusion appropriately applies the Title VII dealer requirements in a way that reflects the economic reality of swaps among affiliates, which generally does not raise the customer protection or market risk concerns addressed by Title VII. In sum, to the extent that the application of Title VII dealer requirements to certain persons were to pose a net burden on competition in the security-based swap market, we believe those effects would be a necessary or appropriate consequence of implementing the statutory definitions consistent with the purposes of the Title VII amendments to the Exchange Act. ii. Major Security-Based Swap Participant Definition As we discuss above, we have estimated that entities approaching the level of exposure required to be a major participant may incur certain costs in connection with analyzing their E:\FR\FM\23MYR2.SGM 23MYR2 30742 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations status.1585 Given the size of the exposures and notional amounts required to trigger the major participant test (e.g., $1 billion in daily average current uncollateralized exposure in a major category), we do not believe that these costs of assessment would materially impact the competitive role played in the security-based swap market by persons who have positions large enough that they potentially may be major participants. We expect that the programmatic costs associated with the rules applicable to major participants will be more significant. Presumably, a market participant will weigh the costs of complying with the rules against the benefit it expects from maintaining security-based swap positions of a magnitude that would require registration as a major participant, in deciding whether to continue to maintain such positions. We cannot rule out the possibility that the prospect of those costs could deter persons from maintaining security-based swap positions of such a magnitude, and that this may reduce competition in the market.1586 As discussed above, Exchange Act rules 3a67–1 through 3a67–9 and the accompanying interpretations reflect choices that we believe are reasonably designed to satisfy the risk criteria set forth in the major participant definition.1587 In reaching these conclusions we considered commenters’ views on a variety of issues, including suggested alternative approaches that would lessen the likelihood of particular entities being deemed to be major participants (e.g., alternative tests, higher thresholds, a broader hedging exclusion, and a higher leverage test). We believe that the choices reflected in the final rules and interpretations are necessary or appropriate in furtherance of the purposes of the Exchange Act and reasonably reflect the criteria set forth by the statutory definition. mstockstill on DSK4VPTVN1PROD with RULES2 b. Efficiency and Capital Formation As noted above, in adopting these final rules and interpretations we also are required to consider whether these actions would promote efficiency and capital formation. In significant part, the effect of these rules on efficiency and capital formation are linked to the effect of these rules on 1585 See text accompanying note 1532, supra (estimating assessment costs as roughly $44,000 in the first year, and $15,268 in subsequent years). 1586 The extent of such possible deterrence is mitigated by the fact that major participant status is a prospect only for those persons with very large security-based swap positions. 1587 See part VIII.A.2, supra. VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 competition. For example, markets that are competitive, with fair and transparent pricing and equal access to security-based swaps, may be expected to promote the efficient allocation of capital. Similarly, definitional rules that promote, or do not unduly restrict, competition can be accompanied by regulatory benefits that minimize the risk of market failure and thus promote efficiency within the market. Such competitive markets would increase the efficiency by which market participants could transact in security-based swaps for speculative, trading, hedging and other purposes. Definitional rules and interpretations of an appropriate scope also can be expected to promote capital formation by facilitating the appropriate use of security-based swaps for hedging purposes, and thus by contributing to liquidity and reducing costs in connection with the issuance of equity and debt securities. In the context of credit default swaps based on loans, moreover, definitional rules and interpretations of an appropriate scope can be expected to promote capital formation by facilitating loans to businesses that may not otherwise be made absent such a swap. Since credit risk is correlated, lenders may find it desirable to hedge credit risks on their loan portfolios by purchasing protection through single-name or index credit default swaps. Even though there is basis risk in this type of trade, it should be particularly effective at reducing exposure to systemic credit events. More generally, security-based swaps can be expected to promote risk transfer to persons better positioned and more willing to bear certain risks (e.g., the transfer of risks from hedgers to speculators). Conversely, definitional rules that are accompanied by too many competitive burdens pose the risk of imposing excessive costs of regulation that could deter the efficient allocation of capital to security-based swaps. Such rules also may be expected to reduce the capital formation benefits that otherwise would be associated with security-based swaps. Definitional rules of an inappropriate scope further may reduce the availability of security-based swaps and thus direct market participants not to seek to address certain business needs, or to use less effective financial instruments to meet their business needs. For example, major participant thresholds that broadly capture much of the security-based swap market would discourage certain entities from participating in the market, particularly if the regulatory costs for major participants are high. This could make PO 00000 Frm 00148 Fmt 4701 Sfmt 4700 it difficult for hedgers to find a counterparty, which would make it more expensive to hedge risks and hinder efficient risk-sharing in the broader economy. In addition, definitional rules that pose the risk of creating a market that contains an undue amount of unregulated dealing activity—as may be the result of a de minimis threshold that is too high— would lead to disparate treatment of dealers and could undermine the benefits of Title VII. The rules and interpretations that we are adopting in connection with the dealer and major participant definitions are designed to apply the statutory definitions in a way that reasonably effects the goals of Title VII. For example, the rule implementing the de minimis exception to the dealer definition is designed to focus the application of the dealer definition in a way that implements the benefits associated with the regulation of security-based swap dealers under Title VII, without imposing the costs associated with those regulations on those entities responsible for only a small portion of total dealing activity. In addition, the rules and interpretations in connection with the major participant definition are geared to focus major participant regulation on entities whose security-based swap positions pose a particularly high degree of credit risk to the market, without applying those regulations on persons who pose a lesser degree of risk. In conclusion, we believe that the rules and interpretations may be expected to promote efficiency in the allocation of capital to security-based swaps, and to promote the capital formation benefits of security-based swaps, by helping to focus the costs and burdens of the regulation of dealers and major participants under Title VII upon those persons for whom the imposition of those costs are most appropriate given their overall activity and positions in the security-based swap market. The rules and interpretations similarly may be expected to apply certain Title VII requirements (e.g., counterparty disclosure requirements that can be expected to reduce information asymmetries) to those entities that engage in activities or maintain positions in the security-based swap market such that their compliance with these requirements may promote the efficiency and capital allocation benefits associated with such regulation. B. Paperwork Reduction Act Analysis The Proposing Release addressed a potential new ‘‘collection of information’’ requirement, within the E:\FR\FM\23MYR2.SGM 23MYR2 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations meaning of the Paperwork Reduction Act of 1995,1588 because the proposed definition of the term ‘‘hedging or mitigating commercial risk’’ included documentation and assessment conditions. As discussed above, final rule defining ‘‘hedging or mitigating commercial risk’’ does not contain those proposed documentation and assessment conditions. Accordingly, the Paperwork Reduction Act does not apply to these definitions.1589 C. Regulatory Flexibility Act Certification The Regulatory Flexibility Act (‘‘RFA’’) 1590 requires Federal agencies, in promulgating rules, to consider the impact of those rules on small entities. Section 603(a) 1591 of the Administrative Procedure Act,1592 as amended by the RFA, generally requires the SEC to undertake a regulatory flexibility analysis of all proposed rules, or proposed rule amendments, to determine the impact of such rulemaking on ‘‘small entities.’’ 1593 Section 605(b) of the RFA provides that this requirement shall not apply to any proposed rule or proposed rule amendment, which if adopted, would not have a significant economic impact on a substantial number of small entities.1594 For purposes of SEC rulemaking in connection with the RFA, a small entity includes: (i) When used with reference to an ‘‘issuer’’ or a ‘‘person,’’ other than an investment company, an ‘‘issuer’’ or ‘‘person’’ that, on the last day of its most recent fiscal year, had total assets of $5 million or less,1595 or (ii) a broker-dealer with total capital (net worth plus subordinated liabilities) of less than $500,000 on the date in the prior fiscal 1588 44 U.S.C. 3501. with the discussion above, we recognize that the substantive rules applicable to dealers and major participants may contain collections of information, and that these definitions will affect which entities are subject to those collections of information. We believe that these Paperwork Reduction Act issues are more appropriately addressed in connection with the substantive rules applicable to dealers and major participants. 1590 5 U.S.C. 601 et seq. 1591 5 U.S.C. 603(a). 1592 5 U.S.C. 551 et seq. 1593 Although Section 601(b) of the RFA defines the term ‘‘small entity,’’ the statute permits the Commissions to formulate their own definitions. The SEC has adopted definitions for the term small entity for the purposes of SEC rulemaking in accordance with the RFA. Those definitions, as relevant to this proposed rulemaking, are set forth in Rule 0–10, 17 CFR 240.0–10. See Securities Exchange Act Release No. 18451 (Jan. 28, 1982), 47 FR 5215 (Feb. 4, 1982) (File No. AS–305). 1594 See 5 U.S.C. 605(b). 1595 See 17 CFR 240.0–10(a). mstockstill on DSK4VPTVN1PROD with RULES2 1589 Consistent VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 year as of which its audited financial statements were prepared pursuant to Rule 17a–5(d) under the Exchange Act,1596 or, if not required to file such statements, a broker-dealer with total capital (net worth plus subordinated liabilities) of less than $500,000 on the last day of the preceding fiscal year (or in the time that it has been in business, if shorter); and is not affiliated with any person (other than a natural person) that is not a small business or small organization.1597 Under the standards adopted by the Small Business Administration, small entities in the finance and insurance industry include the following: (i) For entities engaged in credit intermediation and related activities, entities with $175 million or less in assets; 1598 (ii) for entities engaged in non-depository credit intermediation and certain other activities, entities with $7 million or less in annual receipts; 1599 (iii) for entities engaged in financial investments and related activities, entities with $7 million or less in annual receipts; 1600 (iv) for insurance carriers and entities engaged in related activities, entities with $7 million or less in annual receipts; 1601 and (v) for funds, trusts, and other financial vehicles, entities with $7 million or less in annual receipts.1602 The Proposing Release stated that based on feedback from industry participants about the security-based swap markets, the SEC preliminarily believes that any entities that would qualify as security-based swap dealers and major security-based swap market participants would exceed the thresholds defining ‘‘small entities,’’ and that the SEC believes it is unlikely that the proposed rules would have a significant economic impact on any small entity. As a result, the SEC certified that the proposed rules would not have a significant economic impact on a substantial number of small entities for purposes of the RFA, and requested written comments regarding this certification.1603 While we received comment letters that addressed cost issues in connection with the proposed rules, we did not receive any comments that specifically addressed whether the rules defining ‘‘security-based swap dealer’’ or ‘‘major security-based swap participant’’ would 1596 See 17 CFR 240.17a–5(d). 17 CFR 240.0–10(c). 1598 See 13 CFR 121.201 (Subsector 522). 1599 See id. at Subsector 522. 1600 See id. at Subsector 523. 1601 See id. at Subsector 524. 1602 See id. at Subsector 525. 1603 See Proposing Release, 75 FR at 80211. 1597 See PO 00000 Frm 00149 Fmt 4701 Sfmt 4700 30743 have a significant economic impact on small entities. The SEC continues to believe that the types of entities that would engage in more than a de minimis amount of dealing activity involving security-based swaps—which generally would be major banks—would not be ‘‘small entities’’ for purposes of the RFA. Similarly, the SEC continues to believe that the types of entities that may have security-based swap positions above the level required to be a ‘‘major security-based swap participant’’ would not be a ‘‘small entity’’ for purposes of the RFA. Accordingly, the SEC certifies that the final rules defining ‘‘security-based swap dealer’’ or ‘‘major security-based swap participant’’ would not have a significant economic impact on a substantial number of small entities for purposes of the RFA. Statutory Basis and Text of the Amendments List of Subjects in 17 CFR Part 1 Brokers, Commodity futures, Consumer protection, Reporting and recordkeeping requirements. Commodity Futures Trading Commission For the reasons stated in the preamble, the CFTC is adopting the following amendments to 17 CFR part 1. PART 1—GENERAL REGULATIONS UNDER THE COMMODITY EXCHANGE ACT 1. The authority citation for part 1 is revised 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, as amended by Title VII of the Dodd-Frank Wall Street Reform and Consumer Protection Act, Pub. L. 111–203, 124 Stat. 1376 (2010). 2. Amend § 1.3 by revising paragraph (m) and adding paragraphs (ggg) through (mmm) to read as follows: ■ § 1.3 Definitions. * * * * * (m) Eligible contract participant. This term has the meaning set forth in Section 1a(18) of the Act, except that: (1) A major swap participant, as defined in Section 1a(33) of the Act and paragraph (hhh) of this section, is an eligible contract participant; (2) A swap dealer, as defined in Section 1a(49) of the Act and paragraph (ggg) of this section, is an eligible contract participant; (3) A major security-based swap participant, as defined in Section 3(a)(67) of the Securities Exchange Act E:\FR\FM\23MYR2.SGM 23MYR2 mstockstill on DSK4VPTVN1PROD with RULES2 30744 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations of 1934 and § 240.3a67–1 of this title, is an eligible contract participant; (4) A security-based swap dealer, as defined in Section 3(a)(71) of the Securities Exchange Act of 1934 and § 240.3a71–1 of this title, is an eligible contract participant; (5)(i) A transaction-level commodity pool with one or more direct participants that is not an eligible contract participant is not itself an eligible contract participant under either Section 1a(18)(A)(iv) or Section 1a(18)(A)(v) of the Act for purposes of entering into transactions described in Sections 2(c)(2)(B)(vi) and 2(c)(2)(C)(vii) of the Act; and (ii) In determining whether a commodity pool that is a direct participant in a transaction-level commodity pool is an eligible contract participant for purposes of paragraph (m)(5)(i) of this section, the participants in the commodity pool that is a direct participant in the transaction-level commodity pool shall not be considered unless the transaction-level commodity pool, any commodity pool holding a direct or indirect interest in such transaction-level commodity pool, or any commodity pool in which such transaction-level commodity pool holds a direct or indirect interest, has been structured to evade subtitle A of Title VII of the Dodd-Frank Wall Street Reform and Consumer Protection Act by permitting persons that are not eligible contract participants to participate in agreements, contracts, or transactions described in Section 2(c)(2)(B)(i) or Section 2(c)(2)(C)(i) of the Act; (6) A commodity pool that does not have total assets exceeding $5,000,000 or that is not operated by a person described in subclause (A)(iv)(II) of Section 1a(18) of the Act is not an eligible contract participant pursuant to clause (A)(v) of such Section; (7)(i) For purposes of a swap (but not a security-based swap, security-based swap agreement or mixed swap) used to hedge or mitigate commercial risk, an entity may, in determining its net worth for purposes of Section 1a(18)(A)(v)(III) of the Act, include the net worth of any owner of such entity, provided that all the owners of such entity are eligible contract participants; (ii)(A) For purposes of identifying the owners of an entity under paragraph (m)(7)(i) of this section, any person holding a direct ownership interest in such entity shall be considered to be an owner of such entity; provided, however, that any shell company shall be disregarded, and the owners of such shell company shall be considered to be the owners of any entity owned by such shell company; VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 (B) For purposes of paragraph (m)(7)(ii)(A) of this section, the term shell company means any entity that limits its holdings to direct or indirect interests in entities that are relying on this paragraph (m)(7); and (C) In determining whether an owner of an entity is an eligible contract participant for purposes of paragraph (m)(7)(i) of this section, an individual may be considered to be a proprietorship eligible contract participant only if the individual— (1) Has an active role in operating a business other than an entity; (2) Directly owns all of the assets of the business; (3) Directly is responsible for all of the liabilities of the business; and (4) Acquires its interest in the entity seeking to qualify as an eligible contract participant under paragraph (m)(7)(i) of this section in connection with the operation of the individual’s proprietorship or to manage the risk associated with an asset or liability owned or incurred or reasonably likely to be owned or incurred by the individual in the operation of the individual’s proprietorship; and (iii) For purposes of paragraph (m)(7)(i) of this section, a swap is used to hedge or mitigate commercial risk if the swap complies with the conditions in paragraph (kkk) of this section; and (8) Notwithstanding Section 1a(18)(A)(iv) of the Act and paragraph (m)(5) of this section, a commodity pool that enters into an agreement, contract, or transaction described in Section 2(c)(2)(B)(i) or Section 2(c)(2)(C)(i)(I) of the Act is an eligible contract participant with respect to such agreement, contract, or transaction, regardless of whether each participant in such commodity pool is an eligible contract participant, if all of the following conditions are satisfied: (i) The commodity pool is not formed for the purpose of evading regulation under Section 2(c)(2)(B) or Section 2(c)(2)(C) of the Act or related Commission rules, regulations or orders; (ii) The commodity pool has total assets exceeding $10,000,000; and (iii) The commodity pool is formed and operated by a registered commodity pool operator or by a commodity pool operator who is exempt from registration as such pursuant to § 4.13(a)(3) of this chapter. * * * * * (ggg) Swap Dealer. (1) In general. The term swap dealer means any person who: (i) Holds itself out as a dealer in swaps; (ii) Makes a market in swaps; PO 00000 Frm 00150 Fmt 4701 Sfmt 4700 (iii) Regularly enters into swaps with counterparties as an ordinary course of business for its own account; or (iv) Engages in any activity causing it to be commonly known in the trade as a dealer or market maker in swaps. (2) Exception. The term swap dealer does not include a person that enters into swaps for such person’s own account, either individually or in a fiduciary capacity, but not as a part of regular business. (3) Scope of designation. A person who is a swap dealer shall be deemed to be a swap dealer with respect to each swap it enters into, regardless of the category of the swap or the person’s activities in connection with the swap. However, if a person makes an application to limit its designation as a swap dealer to specified categories of swaps or specified activities of the person in connection with swaps, the Commission shall determine whether the person’s designation as a swap dealer shall be so limited. If the Commission grants such limited designation, such limited designation swap dealer shall be deemed to be a swap dealer with respect to each swap it enters into in the swap category or categories for which it is so designated, regardless of the person’s activities in connection with such category or categories of swaps. A person may make such application to limit the categories of swaps or activities of the person that are subject to its swap dealer designation at the same time as, or after, the person’s initial registration as a swap dealer. (4) De minimis exception. (i) Except as provided in paragraph (ggg)(4)(vi) of this section, a person that is not currently registered as a swap dealer shall be deemed not to be a swap dealer as a result of its swap dealing activity involving counterparties, so long as the swap positions connected with those dealing activities into which the person—or any other entity controlling, controlled by or under common control with the person—enters over the course of the immediately preceding 12 months (or following the effective date of final rules implementing Section 1a(47) of the Act, 7 U.S.C. 1a(47), if that period is less than 12 months) have an aggregate gross notional amount of no more than $3 billion, subject to a phase in level of an aggregate gross notional amount of no more than $8 billion applied in accordance with paragraph (ggg)(4)(ii) of this section, and an aggregate gross notional amount of no more than $25 million with regard to swaps in which the counterparty is a ‘‘special entity’’ (as that term is defined in Section 4s(h)(2)(C) of the Act, 7 E:\FR\FM\23MYR2.SGM 23MYR2 mstockstill on DSK4VPTVN1PROD with RULES2 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations U.S.C. 6s(h)(2)(C), and § 23.401(c) of this chapter). For purposes of this paragraph, if the stated notional amount of a swap is leveraged or enhanced by the structure of the swap, the calculation shall be based on the effective notional amount of the swap rather than on the stated notional amount. (ii) Phase-in procedure and staff report. (A) Phase-in period. For purposes of paragraph (ggg)(4)(i) of this section, except as provided in paragraph (ggg)(4)(vi) of this section, a person that engages in swap dealing activity that does not exceed the phase-in level set forth in paragraph (ggg)(4)(i) shall be deemed not to be a swap dealer as a result of its swap dealing activity until the ‘‘phase-in termination date’’ established as provided in paragraph (ggg)(4)(ii)(C) or (D) of this section. The Commission shall announce the phasein termination date on the Commission Web site and publish such date in the Federal Register. (B) Staff report. No later than 30 months following the date that a swap data repository first receives swap data in accordance with part 45 of this chapter, the staff of the Commission shall complete and publish for public comment a report on topics relating to the definition of the term ‘‘swap dealer’’ and the de minimis threshold. The report should address the following topics, as appropriate, based on the availability of data and information: the potential impact of modifying the de minimis threshold, and whether the de minimis threshold should be increased or decreased; the factors that are useful for identifying swap dealing activity, including the application of the dealertrader distinction for that purpose, and the potential use of objective tests or safe harbors as part of the analysis; the impact of provisions in paragraphs (ggg)(5) and (6) of this section excluding certain swaps from the dealer analysis, and potential alternative approaches for such exclusions; and any other analysis of swap data and information relating to swaps that the Commission or staff deem relevant to this rule. (C) Nine months after publication of the report required by paragraph (ggg)(4)(ii)(B) of this section, and after giving due consideration to that report and any associated public comment, the Commission may either: (1) Terminate the phase-in period set forth in paragraph (ggg)(4)(ii)(A) of this section, in which case the phase-in termination date shall be established by the Commission by order published in the Federal Register; or (2) Determine that it is necessary or appropriate in the public interest to propose through rulemaking an VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 alternative to the $3 billion amount set forth in paragraph (ggg)(4)(i) of this section that would constitute a de minimis quantity of swap dealing in connection with transactions with or on behalf of customers within the meaning of section 1(a)(47)(D) of the Act, 7 U.S.C. 1(a)(47)(D), in which case the Commission shall by order published in the Federal Register provide notice of such determination, which order shall also establish the phase-in termination date. (D) If the phase-in termination date has not been previously established pursuant to paragraph (ggg)(4)(ii)(C) of this section, then in any event the phase-in termination date shall occur five years after the date that a swap repository first receives swap data in accordance with part 45 of this chapter. (iii) Registration period for persons that can no longer take advantage of the exception. A person that has not registered as a swap dealer by virtue of satisfying the requirements of this paragraph (ggg)(4), but that no longer can take advantage of that de minimis exception, will be deemed not to be a swap dealer until the earlier of the date on which it submits a complete application for registration pursuant to Section 4s(b) of the Act, 7 U.S.C. 6s(b), or two months after the end of the month in which that person becomes no longer able to take advantage of the exception. (iv) Applicability to registered swap dealers. A person who currently is registered as a swap dealer may apply to withdraw that registration, while continuing to engage in swap dealing activity in reliance on this section, so long as that person has been registered as a swap dealer for at least 12 months and satisfies the conditions of paragraph (ggg)(4)(i) of this section. (v) Future adjustments to scope of the de minimis exception. The Commission may by rule or regulation change the requirements of the de minimis exception described in paragraphs (ggg)(4)(i) through (iv) of this section. (vi) Voluntary registration. Notwithstanding paragraph (ggg)(4)(i) of this section, a person that chooses to register with the Commission as a swap dealer shall be deemed to be a swap dealer. (5) Insured depository institution swaps in connection with originating loans to customers. Swaps entered into by an insured depository institution with a customer in connection with originating a loan with that customer shall not be considered in determining whether the insured depository institution is a swap dealer. PO 00000 Frm 00151 Fmt 4701 Sfmt 4700 30745 (i) An insured depository institution shall be considered to have entered into a swap with a customer in connection with originating a loan, as defined in paragraphs (ggg)(5)(ii) and (iii) of this section, with that customer only if: (A) The insured depository institution enters into the swap with the customer no earlier than 90 days before and no later than 180 days after the date of execution of the applicable loan agreement, or no earlier than 90 days before and no later than 180 days after any transfer of principal to the customer by the insured depository institution pursuant to the loan; (B)(1) The rate, asset, liability or other notional item underlying such swap is, or is directly related to, a financial term of such loan, which includes, without limitation, the loan’s duration, rate of interest, the currency or currencies in which it is made and its principal amount; (2) Such swap is required, as a condition of the loan under the insured depository institution’s loan underwriting criteria, to be in place in order to hedge price risks incidental to the borrower’s business and arising from potential changes in the price of a commodity (other than an excluded commodity); (C) The duration of the swap does not extend beyond termination of the loan; (D) The insured depository institution is: (1) The sole source of funds to the customer under the loan; (2) Committed to be, under the terms of the agreements related to the loan, the source of at least 10 percent of the maximum principal amount under the loan; or (3) Committed to be, under the terms of the agreements related to the loan, the source of a principal amount that is greater than or equal to the aggregate notional amount of all swaps entered into by the insured depository institution with the customer in connection with the financial terms of the loan; (E) The aggregate notional amount of all swaps entered into by the customer in connection with the financial terms of the loan is, at any time, not more than the aggregate principal amount outstanding under the loan at that time; and (F) If the swap is not accepted for clearing by a derivatives clearing organization, the insured depository institution reports the swap as required by section 4r of the Act, 7 U.S.C. 6r (except as otherwise provided in section 4r(a)(3)(A), 7 U.S.C. 6r(a)(3)(A), or section 4r(a)(3)(B), 7 U.S.C. 6r(a)(3)(B) of the Act). E:\FR\FM\23MYR2.SGM 23MYR2 mstockstill on DSK4VPTVN1PROD with RULES2 30746 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations (ii) An insured depository institution shall be considered to have originated a loan with a customer if the insured depository institution: (A) Directly transfers the loan amount to the customer; (B) Is a part of a syndicate of lenders that is the source of the loan amount that is transferred to the customer; (C) Purchases or receives a participation in the loan; or (D) Otherwise is the source of funds that are transferred to the customer pursuant to the loan or any refinancing of the loan. (iii) The term loan shall not include: (A) Any transaction that is a sham, whether or not intended to qualify for the exclusion from the definition of the term swap dealer in this rule; or (B) Any synthetic loan, including, without limitation, a loan credit default swap or loan total return swap. (6) Swaps that are not considered in determining whether a person is a swap dealer. (i) Inter-affiliate activities. In determining whether a person is a swap dealer, that person’s swaps with majority-owned affiliates shall not be considered. For these purposes the counterparties to a swap are majorityowned affiliates if one counterparty directly or indirectly owns a majority interest in the other, or if a third party directly or indirectly owns a majority interest in both counterparties to the swap, where ‘‘majority interest’’ is the right to vote or direct the vote of a majority of a class of voting securities of an entity, the power to sell or direct the sale of a majority of a class of voting securities of an entity, or the right to receive upon dissolution or the contribution of a majority of the capital of a partnership. (ii) Activities of a cooperative. (A) Any swap that is entered into by a cooperative with a member of such cooperative shall not be considered in determining whether the cooperative is a swap dealer, provided that: (1) The swap is subject to policies and procedures of the cooperative requiring that the cooperative monitors and manages the risk of such swap; (2) The cooperative reports the swap as required by Section 4r of the Act, 7 U.S.C. 6r (except as otherwise provided in Section 4r(a)(3)(A) of the Act, 7 U.S.C. 6r(a)(3)(A) or Section 4r(a)(3)(B) of the Act, 7 U.S.C. 6r(a)(3)(B)); and (3) if the cooperative is a cooperative association of producers, the swap is primarily based on a commodity that is not an excluded commodity. (B) For purposes of this paragraph (ggg)(6)(ii), the term cooperative shall mean: VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 (1) A cooperative association of producers as defined in section 1a(14) of the Act, 7 U.S.C. 1a(14), or (2) A person chartered under Federal law as a cooperative and predominantly engaged in activities that are financial in nature as defined in section 4(k) of the Bank Holding Company Act of 1956, 12 U.S.C. 1843(k). (C) For purposes of this paragraph (ggg)(6)(ii), a swap shall be deemed to be entered into by a cooperative association of producers with a member of such cooperative association of producers when the swap is between a cooperative association of producers and a person that is a member of a cooperative association of producers that is itself a member of the first cooperative association of producers. (iii) Swaps entered into for the purpose of hedging physical positions. In determining whether a person is a swap dealer, a swap that the person enters into shall not be considered, if: (A) The person enters into the swap for the purpose of offsetting or mitigating the person’s price risks that arise from the potential change in the value of one or several— (1) Assets that the person owns, produces, manufactures, processes, or merchandises or anticipates owning, producing, manufacturing, processing, or merchandising; (2) Liabilities that the person owns or anticipates incurring; or (3) Services that the person provides, purchases, or anticipates providing or purchasing; (B) The swap represents a substitute for transactions made or to be made or positions taken or to be taken by the person at a later time in a physical marketing channel; (C) The swap is economically appropriate to the reduction of the person’s risks in the conduct and management of a commercial enterprise; (D) The swap is entered into in accordance with sound commercial practices; and (E) The person does not enter into the swap in connection with activity structured to evade designation as a swap dealer. (iv) Swaps entered into by floor traders. In determining whether a person is a swap dealer, each swap that the person enters into in its capacity as a floor trader as defined by section 1a(23) of the Act or on or subject to the rules of a swap execution facility shall not be considered for the purpose of determining whether the person is a swap dealer if the person: (A) Is registered with the Commission as a floor trader pursuant to § 3.11 of this chapter; PO 00000 Frm 00152 Fmt 4701 Sfmt 4700 (B) Enters into swaps with proprietary funds for that trader’s own account solely on or subject to the rules of a designated contract market or swap execution facility and submits each such swap for clearing to a derivatives clearing organization; (C) Is not an affiliated person of a registered swap dealer; (D) Does not directly, or through an affiliated person, negotiate the terms of swap agreements, other than price and quantity or to participate in a request for quote process subject to the rules of a designated contract market or a swap execution facility; (E) Does not directly or through an affiliated person offer or provide swap clearing services to third parties; (F) Does not directly or through an affiliated person enter into swaps that would qualify as hedging physical positions pursuant to paragraph (ggg)(6)(iii) of this section or hedging or mitigating commercial risk pursuant to paragraph (kkk) of this section (except for any such swap executed opposite a counterparty for which the transaction would qualify as a bona fide hedging transaction); (G) Does not participate in any market making program offered by a designated contract market or swap execution facility; and (H) Notwithstanding the fact such person is not registered as a swap dealer, such person complies with §§ 23.201, 23.202, 23.203, and 23.600 of this chapter with respect to each such swap as if it were a swap dealer. (hhh) Major Swap Participant. (1) In general. The term major swap participant means any person: (i) That is not a swap dealer; and (ii)(A) That maintains a substantial position in swaps for any of the major swap categories, excluding both positions held for hedging or mitigating commercial risk, and positions maintained by any employee benefit plan (or any contract held by such a plan) as defined in paragraphs (3) and (32) of Section 3 of the Employee Retirement Income Security Act of 1974, 29 U.S.C. 1002, for the primary purpose of hedging or mitigating any risk directly associated with the operation of the plan; (B) Whose outstanding swaps create substantial counterparty exposure that could have serious adverse effects on the financial stability of the United States banking system or financial markets; or (C) That is a financial entity that: (1) Is highly leveraged relative to the amount of capital such entity holds and that is not subject to capital requirements established by an E:\FR\FM\23MYR2.SGM 23MYR2 mstockstill on DSK4VPTVN1PROD with RULES2 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations appropriate Federal banking agency (as defined in Section 1a(2) of the Act, 7 U.S.C. 1a(2)); and (2) Maintains a substantial position in outstanding swaps in any major swap category. (2) Scope of designation. A person that is a major swap participant shall be deemed to be a major swap participant with respect to each swap it enters into, regardless of the category of the swap or the person’s activities in connection with the swap. However, if a person makes an application to limit its designation as a major swap participant to specified categories of swaps, the Commission shall determine whether the person’s designation as a major swap participant shall be so limited. If the Commission grants such limited designation, such limited designation major swap participant shall be deemed to be a major swap participant with respect to each swap it enters into in the swap category or categories for which it is so designated, regardless of the person’s activities in connection with such category or categories of swaps. A person may make such application to limit its designation at the same time as, or after, the person’s initial registration as a major swap participant. (3) Timing requirements. A person that is not registered as a major swap participant, but that meets the criteria in this rule to be a major swap participant as a result of its swap activities in a fiscal quarter, will not be deemed to be a major swap participant until the earlier of the date on which it submits a complete application for registration as a major swap participant pursuant to Section 4s(a)(2) of the Act, 7 U.S.C. 6s(a)(2), or two months after the end of that quarter. (4) Reevaluation period. Notwithstanding paragraph (hhh)(3) of this section, if a person that is not registered as a major swap participant meets the criteria in this rule to be a major swap participant in a fiscal quarter, but does not exceed any applicable threshold by more than twenty percent in that quarter: (i) That person will not be deemed a major swap participant pursuant to the timing requirements specified in paragraph (hhh)(3) of this section; but (ii) That person will be deemed a major swap participant pursuant to the timing requirements specified in paragraph (hhh)(3) of this section at the end of the next fiscal quarter if the person exceeds any of the applicable daily average thresholds in that next fiscal quarter. (5) Termination of status. A person that is deemed to be a major swap participant shall continue to be deemed VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 a major swap participant until such time that its swap activities do not exceed any of the daily average thresholds set forth within this rule for four consecutive fiscal quarters after the date on which the person becomes registered as a major swap participant. (6) Calculation of status. A person shall not be deemed to be a ‘‘major swap participant,’’ regardless of whether the criteria paragraph (hhh)(1) of this section otherwise would cause the person to be a major swap participant, provided the person meets the conditions set forth in paragraphs (hhh)(6)(i), (ii) or (iii) of this section. (i) Caps on uncollateralized exposure and notional positions. (A) Maximum potential uncollateralized exposure. The express terms of the person’s agreements or arrangements relating to swaps with its counterparties at no time would permit the person to maintain a total uncollateralized exposure of more than $100 million to all such counterparties, including any exposure that may result from thresholds or minimum transfer amounts established by credit support annexes or similar arrangements; and (B) Maximum notional amount of swap positions. The person does not maintain swap positions in a notional amount of more than $2 billion in any major category of swaps, or more than $4 billion in the aggregate across all major categories; or (ii) Caps on uncollateralized exposure plus monthly calculation. (A) Maximum potential uncollateralized exposure. The express terms of the person’s agreements or arrangements relating to swaps with its counterparties at no time would permit the person to maintain a total uncollateralized exposure of more than $200 million to all such counterparties (with regard to swaps and any other instruments by which the person may have exposure to those counterparties), including any exposure that may result from thresholds or minimum transfer amounts established by credit support annexes or similar arrangements; and (B) Calculation of positions. (1) At the end of each month, the person performs the calculations prescribed by paragraph (jjj) of this section with regard to whether the aggregate uncollateralized outward exposure plus aggregate potential outward exposure as of that day constitute a ‘‘substantial position’’ in a major category of swaps, or pose ‘‘substantial counterparty exposure that could have serious adverse effects on the financial stability of the United States banking system or financial markets’’; these calculations shall disregard provisions of those rules that PO 00000 Frm 00153 Fmt 4701 Sfmt 4700 30747 provide for the analyses to be determined based on a daily average over a calendar quarter; and (2) Each such analysis produces thresholds of no more than: (i) $1 billion in aggregate uncollateralized outward exposure plus aggregate potential outward exposure in any major category of swaps; if the person is subject to paragraph (jjj) of this section, by virtue of being a highly leveraged financial entity that is not subject to capital requirements established by an appropriate Federal banking agency, this analysis shall account for all of the person’s swap positions in that major category (without excluding hedging positions), otherwise this analysis shall exclude the same hedging and related positions that are excluded from consideration pursuant to paragraph (jjj)(1)(i) of this section; or (ii) $2 billion in aggregate uncollateralized outward exposure plus aggregate potential outward exposure (without any positions excluded from the analysis) with regard to all of the person’s swap positions. (iii) Calculations based on certain information. (A)(1) At the end of each month, the person’s aggregate uncollateralized outward exposure with respect to its swap positions in each major swap category is less than $1.5 billion with respect to the rate swap category and less than $500 million with respect to each of the other major swap categories; and (2) At the end of each month, the sum of the amount calculated under paragraph (hhh)(6)(iii)(A)(1) of this section with respect to each major swap category and the total notional principal amount of the person’s swap positions in each such major swap category, adjusted by the multipliers set forth in paragraph (jjj)(3)(ii)(1) of this section on a position-by-position basis reflecting the type of swap, is less than $3 billion with respect to the rate swap category and less than $1 billion with respect to each of the other major swap categories; or (B)(1) At the end of each month, the person’s aggregate uncollateralized outward exposure with respect to its swap positions across all major swap categories is less than $500 million; and (2) The sum of the amount calculated under paragraph (hhh)(6)(iii)(B)(1) of this section and the product of the total effective notional principal amount of the person’s swap positions in all major security-based swap categories multiplied by 0.15 is less than $1 billion. (C) For purposes of the calculations set forth in this paragraph (hhh)(6)(iii): E:\FR\FM\23MYR2.SGM 23MYR2 mstockstill on DSK4VPTVN1PROD with RULES2 30748 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations (1) The person’s aggregate uncollateralized outward exposure for positions held with swap dealers shall be equal to such exposure reported on the most recent reports of such exposure received from such swap dealers; and (2) The person’s aggregate uncollateralized outward exposure for positions that are not reflected in any report of exposure from a swap dealer (including all swap positions it holds with persons other than swap dealers) shall be calculated in accordance with paragraph (jjj)(2) of this section. (iv) For purposes of the calculations set forth in this paragraph (hhh)(6), the person shall use the effective notional amount of a position rather than the stated notional amount of the position if the stated notional amount is leveraged or enhanced by the structure of the position. (v) No presumption shall arise that a person is required to perform the calculations needed to determine if it is a major swap participant, solely by reason that the person does not meet the conditions specified in paragraph (hhh)(6)(i), (ii) or (iii) of this section. (7) Exclusions. A person who is registered as a derivatives clearing organization with the Commission pursuant to section 5b of the Act and regulations thereunder, shall not be deemed to be a major swap participant, regardless of whether the criteria in this paragraph (hhh) otherwise would cause the person to be a major swap participant. (iii) Category of swaps; major swap category. For purposes of Section 1a(33) the Act, 7 U.S.C. 1a(33), and paragraph (hhh) of this section, the terms major swap category, category of swaps and any similar terms mean any of the categories of swaps listed below. For the avoidance of doubt, the term swap as it is used in this paragraph (iii) has the meaning set forth in Section 1a(47) of the Act, 7 U.S.C. 1a(47), and the rules thereunder. (1) Rate swaps. Any swap which is primarily based on one or more reference rates, including but not limited to any swap of payments determined by fixed and floating interest rates, currency exchange rates, inflation rates or other monetary rates, any foreign exchange swap, as defined in Section 1a(25) of the Act, 7 U.S.C. 1a(25), and any foreign exchange option other than an option to deliver currency. (2) Credit swaps. Any swap that is primarily based on instruments of indebtedness, including but not limited to any swap primarily based on one or VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 more broad-based indices related to debt instruments or loans, and any swap that is an index credit default swap or total return swap on one or more indices of debt instruments. (3) Equity swaps. Any swap that is primarily based on equity securities, including but not limited to any swap based on one or more broad-based indices of equity securities and any total return swap on one or more equity indices. (4) Other commodity swaps. Any swap that is not included in the rate swap, credit swap or equity swap categories. (jjj) Substantial position. (1) In general. For purposes of Section 1a(33) of the Act, 7 U.S.C. 1a(33), and paragraph (hhh) of this section, the term ‘‘substantial position’’ means swap positions that equal or exceed any of the following thresholds in the specified major category of swaps: (i) For rate swaps: (A) $3 billion in daily average aggregate uncollateralized outward exposure; or (B) $6 billion in: (1) Daily average aggregate uncollateralized outward exposure plus (2) Daily average aggregate potential outward exposure. (ii) For credit swaps: (A) $1 billion in daily average aggregate uncollateralized outward exposure; or (B) $2 billion in: (1) Daily average aggregate uncollateralized outward exposure plus (2) Daily average aggregate potential outward exposure. (iii) For equity swaps: (A) $1 billion in daily average aggregate uncollateralized outward exposure; or (B) $2 billion in: (1) Daily average aggregate uncollateralized outward exposure plus (2) Daily average aggregate potential outward exposure. (iv) For other commodity swaps: (A) $1 billion in daily average aggregate uncollateralized outward exposure; or (B) $2 billion in: (1) Daily average aggregate uncollateralized outward exposure plus (2) Daily average aggregate potential outward exposure. (2) Aggregate uncollateralized outward exposure. (i) In general. Aggregate uncollateralized outward exposure in general means the sum of the current exposure, obtained by marking-to-market using industry PO 00000 Frm 00154 Fmt 4701 Sfmt 4700 standard practices, of each of the person’s swap positions with negative value in a major swap category, less the value of the collateral the person has posted in connection with those positions. (ii) Calculation of aggregate uncollateralized outward exposure. In calculating this amount the person shall, with respect to each of its swap counterparties in a given major swap category, determine the dollar value of the aggregate current exposure arising from each of its swap positions with negative value (subject to the netting provisions described below) in that major category by marking-to-market using industry standard practices; and deduct from that dollar amount the aggregate value of the collateral the person has posted with respect to the swap positions. The aggregate uncollateralized outward exposure shall be the sum of those uncollateralized amounts across all of the person’s swap counterparties in the applicable major category. (iii) Relevance of netting agreements. (A) If the person has one or more master netting agreement in effect with a particular counterparty, the person may measure the current exposure arising from its swaps in any major category on a net basis, applying the terms of those agreements. Calculation of net current exposure may take into account offsetting positions entered into with that particular counterparty involving swaps (in any swap category) as well as security-based swaps and securities financing transactions (consisting of securities lending and borrowing, securities margin lending and repurchase and reverse repurchase agreements), and other financial instruments that are subject to netting offsets for purposes of applicable bankruptcy law, to the extent these are consistent with the offsets permitted by the master netting agreements. (B) Such adjustments may not take into account any offset associated with positions that the person has with separate counterparties. (iv) Allocation of uncollateralized outward exposure. If a person calculates current exposure with a particular counterparty on a net basis, as provided by paragraph (jjj)(2)(iii) of this section, the portion of that current exposure that should be attributed to each ‘‘major’’ category of swaps for purposes of the substantial position analysis should be calculated according to the formula: E:\FR\FM\23MYR2.SGM 23MYR2 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations Where: ES(MC) equals the amount of aggregate current exposure attributable to the entity’s swap positions in the ‘‘major’’ swap category at issue; Enet total equals the entity’s aggregate current exposure to the counterparty at issue, after accounting for the netting of positions and the posting of collateral; OTMS(MC) equals the exposure associated with the entity’s out-of-the-money positions in swaps in the ‘‘major’’ category at issue, subject to those netting arrangements; and OTMS(O) equals the exposure associated with the entity’s out-of-the-money positions in the other ‘‘major’’ categories of swaps, subject to those netting arrangements; and OTMnon-S equals the exposure associated with the entity’s out-of-the-money positions associated with instruments, other than swaps, that are subject to those netting arrangements. (3) Aggregate potential outward exposure. (i) In general. Aggregate potential outward exposure in any major swap category means the sum of: (A) The aggregate potential outward exposure for each of the person’s swap positions in a major swap category that are not subject to daily mark-to-market margining and are not cleared by a registered or exempt clearing agency or derivatives clearing organization, as calculated in accordance with paragraph (jjj)(3)(ii) of this section; and (B) The aggregate potential outward exposure for each of the person’s swap positions in such major swap category that are either subject to daily mark-tomarket margining or are cleared by a registered or exempt clearing agency or derivatives clearing organization, as calculated in accordance with paragraph (jjj)(3)(iii) of this section. (ii) Calculation of potential outward exposure for swaps that are not subject to daily mark-to-market margining and are not cleared by a registered or exempt clearing agency or derivatives 30749 clearing organization. (A) In general. (1) For positions in swaps that are not subject to daily mark-to-market margining and are not cleared by a registered or exempt clearing agency or a derivatives clearing organization, potential outward exposure equals the total notional principal amount of those positions, multiplied by the following factors on a position-by-position basis reflecting the type of swap. For any swap that does not appropriately fall within any of the specified categories, the ‘‘other commodities’’ conversion factors set forth in the following Table 1 are to be used. If a swap is structured such that on specified dates any outstanding exposure is settled and the terms are reset so that the market value of the swap is zero, the remaining maturity equals the time until the next reset date. TABLE 1—CONVERSION FACTOR MATRIX FOR SWAPS Interest rate One year or less .................................................. Over one to five years ......................................... Over five years .................................................... Residual maturity Credit Equity 0.10 0.10 0.10 0.06 0.08 0.10 mstockstill on DSK4VPTVN1PROD with RULES2 One year or less ............... Over one to five years ...... Over five years ................. (2) Use of effective notional amounts. If the stated notional amount on a position is leveraged or enhanced by the structure of the position, the calculation in paragraph (jjj)(3)(ii)(A)(1) of this section shall be based on the effective notional amount of the position rather than on the stated notional amount. (3) Exclusion of certain positions. The calculation in paragraph (jjj)(3)(ii)(A)(1) of this section shall exclude: (i) Positions that constitute the purchase of an option, if the purchaser has no additional payment obligations under the position; (ii) Other positions for which the person has prepaid or otherwise satisfied all of its payment obligations; and (iii) Positions for which, pursuant to law or a regulatory requirement, the person has assigned an amount of cash or U.S. Treasury securities that is sufficient at all times to pay the person’s maximum possible liability under the position, and the person may not use VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 Foreign exchange rate and gold 0.00 0.005 0.015 0.01 0.05 0.075 that cash or those Treasury securities for other purposes. (4) Adjustment for certain positions. Notwithstanding paragraph (jjj)(3)(ii)(A)(1) of this section, the potential outward exposure associated with a position by which a person buys credit protection using a credit default swap or index credit default swap, or associated with a position by which a person purchases an option for which the person retains additional payment obligations under the position, is capped at the net present value of the unpaid premiums. (B) Adjustment for netting agreements. Notwithstanding paragraph (jjj)(3)(ii)(A) of this section, for positions subject to master netting agreements the potential outward exposure associated with the person’s swaps with each counterparty equals a weighted average of the potential outward exposure for the person’s swaps with that counterparty as calculated under paragraph (jjj)(3)(ii)(A) of this section, and that amount reduced by the ratio of net current exposure to gross current exposure, consistent with the following equation as calculated on a counterparty-by-counterparty basis: PNet = 0.4 * PGross + 0.6 * NGR * PGross PO 00000 Frm 00155 Fmt 4701 Precious metals (except gold) Sfmt 4700 0.07 0.07 0.08 Other commodities 0.10 0.12 0.15 Where: PNet is the potential outward exposure, adjusted for bilateral netting, of the person’s swaps with a particular counterparty; PGross is the potential outward exposure without adjustment for bilateral netting as calculated pursuant to paragraph (jjj)(3)(ii)(A) of this section; and NGR is the ratio of the current exposure arising from its swaps in the major category as calculated on a net basis according to paragraphs (jjj)(2)(iii) and (iv) of this section, divided by the current exposure arising from its swaps in the major category as calculated in the absence of those netting procedures. (iii) Calculation of potential outward exposure for swaps that are either subject to daily mark-to-market margining or are cleared by a registered or exempt clearing agency or derivatives clearing organization. For positions in swaps that are subject to daily mark-tomarket margining or that are cleared by a registered or exempt clearing agency or derivatives clearing organization: (A) Potential outward exposure equals the potential exposure that would be attributed to such positions using the procedures in paragraph (jjj)(3)(ii) of this section multiplied by: (1) 0.1, in the case of positions cleared by a registered or exempt clearing agency; or E:\FR\FM\23MYR2.SGM 23MYR2 ER23MY12.000</GPH> Residual maturity mstockstill on DSK4VPTVN1PROD with RULES2 30750 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations (2) 0.2, in the case of positions that are subject to daily mark-to-market margining but that are not cleared by a registered or exempt clearing agency. (B) Solely for purposes of calculating potential outward exposure: (1) A swap shall be considered to be subject to daily mark-to-market margining if, and for so long as, the counterparties follow the daily practice of exchanging collateral to reflect changes in the current exposure arising from the swap (after taking into account any other financial positions addressed by a netting agreement between the counterparties). (2) If the person is permitted by agreement to maintain a threshold for which it is not required to post collateral, the position still will be considered to be subject to daily markto-market margining for purposes of calculating potential outward exposure, but the total amount of that threshold (regardless of the actual exposure at any time), less any initial margin posted up to the amount of that threshold, shall be added to the person’s aggregate uncollateralized outward exposure for purposes of paragraph (jjj)(1)(i)(B), (ii)(B), (iii)(B) or (iv)(B) of this section, as applicable. (3) If the minimum transfer amount under the agreement is in excess of $1 million, the position still will be considered to be subject to daily markto-market margining for purposes of calculating potential outward exposure, but the entirety of the minimum transfer amount shall be added to the person’s aggregate uncollateralized outward exposure for purposes of paragraph (jjj)(1)(i)(B), (ii)(B), (iii)(B) or (iv)(B) of this section, as applicable. (4) A person may, at its discretion, calculate the potential outward exposure of positions in swaps that are subject to daily mark-to-market margining in accordance with paragraph (jjj)(3)(ii) of this section in lieu of calculating the potential outward exposure of such swap positions in accordance with this paragraph (jjj)(3)(iii). (4) Calculation of daily average. Measures of daily average aggregate uncollateralized outward exposure and daily average aggregate potential outward exposure shall equal the arithmetic mean of the applicable measure of exposure at the close of each business day, beginning the first business day of each calendar quarter and continuing through the last business day of that quarter. (5) Inter-affiliate activities. In calculating its aggregate uncollateralized outward exposure and its aggregate potential outward exposure, the person VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 shall not consider its swap positions with counterparties that are majorityowned affiliates. For these purposes the counterparties to a swap are majorityowned affiliates if one counterparty directly or indirectly owns a majority interest in the other, or if a third party directly or indirectly owns a majority interest in both counterparties to the swap, where ‘‘majority interest’’ is the right to vote or direct the vote of a majority of a class of voting securities of an entity, the power to sell or direct the sale of a majority of a class of voting securities of an entity, or the right to receive upon dissolution or the contribution of a majority of the capital of a partnership. (kkk) Hedging or mitigating commercial risk. For purposes of Section 1a(33) of the Act, 7 U.S.C. 1a(33) and paragraph (hhh) of this section, a swap position is held for the purpose of hedging or mitigating commercial risk when: (1) Such position: (i) Is economically appropriate to the reduction of risks in the conduct and management of a commercial enterprise (or of a majority-owned affiliate of the enterprise), where the risks arise from: (A) The potential change in the value of assets that a person owns, produces, manufactures, processes, or merchandises or reasonably anticipates owning, producing, manufacturing, processing, or merchandising in the ordinary course of business of the enterprise; (B) The potential change in the value of liabilities that a person has incurred or reasonably anticipates incurring in the ordinary course of business of the enterprise; or (C) The potential change in the value of services that a person provides, purchases, or reasonably anticipates providing or purchasing in the ordinary course of business of the enterprise; (D) The potential change in the value of assets, services, inputs, products, or commodities that a person owns, produces, manufactures, processes, merchandises, leases, or sells, or reasonably anticipates owning, producing, manufacturing, processing, merchandising, leasing, or selling in the ordinary course of business of the enterprise; (E) Any potential change in value related to any of the foregoing arising from interest, currency, or foreign exchange rate movements associated with such assets, liabilities, services, inputs, products, or commodities; or (F) Any fluctuation in interest, currency, or foreign exchange rate exposures arising from a person’s PO 00000 Frm 00156 Fmt 4701 Sfmt 4700 current or anticipated assets or liabilities; or (ii) Qualifies as bona fide hedging for purposes of an exemption from position limits under the Act; or (iii) Qualifies for hedging treatment under: (A) Financial Accounting Standards Board Accounting Standards Codification Topic 815, Derivatives and Hedging (formerly known as Statement No. 133); or (B) Governmental Accounting Standards Board Statement 53, Accounting and Financial Reporting for Derivative Instruments; and (2) Such position is: (i) Not held for a purpose that is in the nature of speculation, investing or trading; and (ii) Not held to hedge or mitigate the risk of another swap or security-based swap position, unless that other position itself is held for the purpose of hedging or mitigating commercial risk as defined by this rule or § 240.3a67–4 of this title. (lll) Substantial counterparty exposure. (1) In general. For purposes of Section 1a(33) of the Act, 7 U.S.C. 1a(33), and paragraph (hhh) of this section, the term substantial counterparty exposure that could have serious adverse effects on the financial stability of the United States banking system or financial markets means a swap position that satisfies either of the following thresholds: (i) $5 billion in daily average aggregate uncollateralized outward exposure; or (ii) $8 billion in: (A) Daily average aggregate uncollateralized outward exposure plus (B) Daily average aggregate potential outward exposure. (2) Calculation methodology. For these purposes, the terms daily average aggregate uncollateralized outward exposure and daily average aggregate potential outward exposure shall be calculated the same way as is prescribed in paragraph (jjj) of this section, except that these amounts shall be calculated by reference to all of the person’s swap positions, rather than by reference to a specific major swap category. (mmm) Financial entity; highly leveraged. (1) For purposes of Section 1a(33) of the Act, 7 U.S.C. 1a(33), and paragraph (hhh) of this section, the term financial entity means: (i) A security-based swap dealer; (ii) A major security-based swap participant; (iii) A commodity pool as defined in Section 1a(10) of the Act, 7 U.S.C. 1a(10); (iv) A private fund as defined in Section 202(a) of the Investment E:\FR\FM\23MYR2.SGM 23MYR2 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations 111–203, §§ 712, 761(b), 124 Stat. 1841 (2010). Securities and Exchange Commission * Pursuant to the Exchange Act, 15 U.S.C. 78a et seq., and particularly, Sections 3 and 23 thereof, and Sections 712 and 761(b) of the Dodd-Frank Act, the SEC is adopting Rules 3a67–1, 3a67– 2, 3a67–3, 3a67–4, 3a67–5, 3a67–6, 3a67–7, 3a71–1, and 3a71–2 under the Exchange Act. For the reasons stated in the preamble, the SEC is amending Title 17, Chapter II, of the Code of the Federal Regulations, as follows: mstockstill on DSK4VPTVN1PROD with RULES2 Advisers Act of 1940, 15 U.S.C. 80b– 2(a); (v) An employee benefit plan as defined in paragraphs (3) and (32) of Section 3 of the Employee Retirement Income Security Act of 1974, 29 U.S.C. 1002; and (vi) A person predominantly engaged in activities that are in the business of banking or financial in nature, as defined in Section 4(k) of the Bank Holding Company Act of 1956, 12 U.S.C. 1843(k). (2) For purposes of Section 1a(33) of the Act, 7 U.S.C. 1a(33), and paragraph (hhh) of this section, the term highly leveraged means the existence of a ratio of an entity’s total liabilities to equity in excess of 12 to 1 as measured at the close of business on the last business day of the applicable fiscal quarter. For this purpose, liabilities and equity should each be determined in accordance with U.S. generally accepted accounting principles; provided, however, that a person that is an employee benefit plan, as defined in paragraphs (3) and (32) of Section 3 of the Employee Retirement Income Security Act of 1974, 29 U.S.C. 1002, may exclude obligations to pay benefits to plan participants from the calculation of liabilities and substitute the total value of plan assets for equity. § 240.3a67–1 Definition of ‘‘major securitybased swap participant.’’ * * * * * 4. Add an undesignated center heading and §§ 240.3a67–1 through 240.3a67–9 and §§ 240.3a71–1 and 240.3a71–2 to read as follows: ■ Security-Based Swap Dealer and Participant Definitions Sec. 240.3a67–1 Definition of ‘‘major securitybased swap participant.’’ 240.3a67–2 Categories of security-based swaps. 240.3a67–3 Definition of ‘‘substantial position.’’ 240.3a67–4 Definition of ‘‘hedging or mitigating commercial risk.’’ 240.3a67–5 Definition of ‘‘substantial counterparty exposure.’’ 240.3a67–6 Definition of ‘‘financial entity.’’ 240.3a67–7 Definition of ‘‘highly leveraged.’’ 240.3a67–8 Timing requirements, reevaluation period and termination of status. 240.3a67–9 Calculation of major participant status by certain persons. 240.3a71–1 Definition of ‘‘security-based swap dealer.’’ 240.3a71–2 De minimis exception. 240.3a71–2A Report regarding the ‘‘security-based swap dealer’’ and ‘‘major security-based swap participant’’ definitions (Appendix A to 17 CFR 240.3a71–2). * * * * (a) General. Major security-based swap participant means any person: (1) That is not a security-based swap dealer; and (2)(i) That maintains a substantial position in security-based swaps for any of the major security-based swap categories, excluding both positions held for hedging or mitigating commercial risk, and positions maintained by any employee benefit PART 240—GENERAL RULES AND plan (or any contract held by such a REGULATIONS, SECURITIES plan) as defined in paragraphs (3) and EXCHANGE ACT OF 1934 (32) of section 3 of the Employee Retirement Income Security Act of 1974 ■ 3. The authority citation for part 240 (29 U.S.C. 1002) for the primary purpose is amended by adding the following of hedging or mitigating any risk citation in numerical order: directly associated with the operation of Authority: 15 U.S.C. 77c, 77d, 77g, 77j, the plan; 77s, 77z–2, 77z–3, 77eee, 77ggg, 77nnn, 77jjj, (ii) Whose outstanding security-based 77kkk, 78c, 78d, 78e, 78f, 78g, 78i, 78j, 78j– swaps create substantial counterparty 1, 78k, 78k–1, 78l, 78m, 78n, 78n–1, 78o, exposure that could have serious 78o–4, 78p, 78q, 78s, 78u–5, 78w, 78x, 78ll, adverse effects on the financial stability 78mm, 80a–20, 80a–23, 80a–29, 80a–37, 80b– of the United States banking system or 3, 80b–4, 80b–11, and 7201 et seq., 18 U.S.C. financial markets; or 1350; 12 U.S.C. 5221(e)(3), and Pub. L. 111– (iii) That is a financial entity that: 203, § 939A, 124 Stat. 1376 (2010), unless (A) Is highly leveraged relative to the otherwise noted. amount of capital such entity holds and * * * * * Sections 3a67–1 through 3a67–9 and 3a71– that is not subject to capital requirements established by an 1 and 3a71–2 are also issued under Pub. L. VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 PO 00000 Frm 00157 Fmt 4701 Sfmt 4700 30751 appropriate Federal banking agency (as defined in 15 U.S.C. 78c(a)(72)); and (B) Maintains a substantial position in outstanding security-based swaps in any major security-based swap category. (b) Scope of designation. A person that is a major security-based swap participant in general shall be deemed to be a major security-based swap participant with respect to each security-based swap it enters into, regardless of the category of the security-based swap or the person’s activities in connection with the security-based swap, unless the Commission limits the person’s designation as a major security-based swap participant to specified categories of security-based swaps. § 240.3a67–2 swaps. Categories of security-based For purposes of section 3(a)(67) of the Act, 15 U.S.C. 78c(a)(67), and the rules thereunder, the terms major securitybased swap category, category of security-based swaps and any similar terms mean either of the following categories of security-based swaps: (a) Debt security-based swaps. Any security-based swap that is based, in whole or in part, on one or more instruments of indebtedness (including loans), or on a credit event relating to one or more issuers or securities, including but not limited to any security-based swap that is a credit default swap, total return swap on one or more debt instruments, debt swap, debt index swap, or credit spread. (b) Other security-based swaps. Any security-based swap not described in paragraph (a) of this section. § 240.3a67–3 position.’’ Definition of ‘‘substantial (a) General. For purposes of section 3(a)(67) of the Act, 15 U.S.C. 78c(a)(67), and § 240.3a67–1, the term substantial position means security-based swap positions that equal or exceed either of the following thresholds in any major category of security-based swaps: (1) $1 billion in daily average aggregate uncollateralized outward exposure; or (2) $2 billion in: (i) Daily average aggregate uncollateralized outward exposure; plus (ii) Daily average aggregate potential outward exposure. (b) Aggregate uncollateralized outward exposure. (1) General. Aggregate uncollateralized outward exposure in general means the sum of the current exposure, obtained by marking-to-market using industry standard practices, of each of the person’s security-based swap positions E:\FR\FM\23MYR2.SGM 23MYR2 30752 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations and repurchase and reverse repurchase agreements), and other financial instruments that are subject to netting offsets for purposes of applicable bankruptcy law, to the extent these are consistent with the offsets permitted by the master netting agreements. (ii) Such adjustments may not take into account any offset associated with positions that the person has with separate counterparties. (4) Allocation of uncollateralized outward exposure. If a person calculates current exposure with a particular counterparty on a net basis, as provided by paragraph (b)(3) of this section, the amount of current uncollateralized exposure attributable to each ‘‘major’’ category of security-based swaps should be calculated according to the following formula: clearing agency or subject to daily markto-market margining, as calculated in accordance with paragraph (c)(3) of this section. (2) Calculation of potential outward exposure for security-based swaps that are not cleared by a registered or exempt clearing agency or subject to daily mark-to-market margining. (i) General. (A)(1) For positions in securitybased swaps that are not cleared by a registered or exempt clearing agency or subject to daily mark-to-market margining, potential outward exposure equals the total notional principal amount of those positions, multiplied by the following factors on a positionby-position basis reflecting the type of security-based swap. For any securitybased swap that is not of the ‘‘debt’’ type, the ‘‘equity and other’’ conversion factors are to be used: (c) Aggregate potential outward exposure. (1) General. Aggregate potential outward exposure means the sum of: (i) The aggregate potential outward exposure for each of the person’s security-based swap positions in a major security-based swap category that are neither cleared by a registered or exempt clearing agency nor subject to daily mark-to-market margining, as calculated in accordance with paragraph (c)(2) of this section; and (ii) The aggregate potential outward exposure for each of the person’s security-based swap positions in a major security-based swap category that are either cleared by a registered or exempt VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 structure of the position, the calculation in paragraph (c)(2)(i)(A) of this section shall be based on the effective notional amount of the position rather than on the stated notional amount. (C) Exclusion of certain positions. The calculation in paragraph (c)(2)(i)(A) of this section shall exclude: (1) Positions that constitute the purchase of an option, such that the person has no additional payment obligations under the position; (2) Other positions for which the person has prepaid or otherwise satisfied all of its payment obligations; and (3) Positions for which, pursuant to regulatory requirement, the person has assigned an amount of cash or U.S. Treasury securities that is sufficient to pay the person’s maximum possible liability under the position, and the person may not use that cash or those Equity Treasury securities for other purposes. Residual maturity Debt and (D) Adjustment for certain positions. other Notwithstanding paragraph (c)(2)(i)(A) One year or less ............... 0.10 0.06 of this section, the potential outward Over one to five years ...... 0.10 0.08 exposure associated with a position by Over five years ................. 0.10 0.10 which a person buys credit protection using a credit default swap, or (2) If a security-based swap is associated with a position by which a structured such that on specified dates person purchases an option for which any outstanding exposure is settled and the person retains additional payment the terms are reset so that the market obligations under the position, is value of the security-based swap is zero, capped at the net present value of the the remaining maturity equals the time unpaid premiums. (ii) Adjustment for netting until the next reset date. (B) Use of effective notional amounts. agreements. Notwithstanding paragraph If the stated notional amount on a (c)(2)(i) of this section, for positions position is leveraged or enhanced by the subject to master netting agreements the PO 00000 Frm 00158 Fmt 4701 Sfmt 4700 E:\FR\FM\23MYR2.SGM 23MYR2 ER23MY12.001</GPH> (iii) The aggregate uncollateralized outward exposure shall be the sum of those uncollateralized amounts across all of the person’s security-based swap counterparties in the applicable major category. (3) Relevance of netting agreements. (i) If a person has one or more master netting agreements with a counterparty, the person may measure the current exposure arising from its security-based swaps in any major category on a net basis, applying the terms of those agreements. Calculation of current exposure may take into account offsetting positions entered into with that particular counterparty involving security-based swaps (in any securitybased swap category) as well as swaps and securities financing transactions (consisting of securities lending and borrowing, securities margin lending Note to paragraph (b)(4). Where: ESBS(MC) equals the amount of aggregate current exposure attributable to the entity’s securitybased swap positions in the ‘‘major’’ category at issue (either security-based credit derivatives or other security-based swaps); Enet total equals the entity’s aggregate current exposure to the counterparty at issue, after accounting for the netting of positions and the posting of collateral; OTMSBS(MC) equals the current exposure associated with the entity’s out-of-the-money positions in security-based swaps in the ‘‘major’’ category at issue, subject to those netting arrangements; and OTMSBS(O) equals the current exposure associated with the entity’s out-of-the-money positions in the other ‘‘major’’ category of security-based swaps, subject to those netting arrangements; and OTMnon-SBS equals the current exposure associated with the entity’s out-of-the-money positions associated with instruments, other than security-based swaps, that are subject to those netting arrangements. mstockstill on DSK4VPTVN1PROD with RULES2 with negative value in a major securitybased swap category, less the value of the collateral the person has posted in connection with those positions. (2) Calculation of aggregate uncollateralized outward exposure. In calculating this amount the person shall, with respect to each of its security-based swap counterparties in a given major security-based swap category: (i) Determine the dollar value of the aggregate current exposure arising from each of its security-based swap positions with negative value (subject to the netting provisions described below) in that major category by marking-tomarket using industry standard practices; and (ii) Deduct from that dollar amount the aggregate value of the collateral the person has posted with respect to the security-based swap positions. Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations potential outward exposure associated with the person’s security-based swaps with each counterparty equals a weighted average of the potential outward exposure for the person’s security-based swaps with that counterparty as calculated under paragraph (c)(2)(i) of this section, and that amount reduced by the ratio of net current exposure to gross current exposure, consistent with the following equation as calculated on a counterparty-by-counterparty basis: PNet = 0.4 × PGross + 0.6 × NGR × PGross mstockstill on DSK4VPTVN1PROD with RULES2 Note to paragraph (c)(2)(ii): Where: PNet is the potential outward exposure, adjusted for bilateral netting, of the person’s securitybased swaps with a particular counterparty; PGross is the potential outward exposure without adjustment for bilateral netting, as calculated pursuant to paragraph (c)(2)(i) of this section; and NGR is the ratio of: 1. The current exposure arising from its security-based swaps in the major category as calculated on a net basis according to paragraphs (b)(3) and (4) of this section, divided by 2. The current exposure arising from its security-based swaps in the major category as calculated in the absence of those netting procedures. (3) Calculation of potential outward exposure for security-based swaps that are either cleared by a registered or exempt clearing agency or subject to daily mark-to-market margining. For positions in security-based swaps that are cleared by a registered or exempt clearing agency or subject to daily markto-market margining: (i) Potential outward exposure equals the potential outward exposure that would be attributed to such positions using the procedures in paragraph (c)(2) of this section, multiplied by: (A) 0.1, in the case of positions cleared by a registered or exempt clearing agency; or (B) 0.2, in the case of positions that are subject to daily mark-to-market margining but that are not cleared by a registered or exempt clearing agency. (ii) Solely for purposes of calculating potential outward exposure: (A) A security-based swap shall be considered to be subject to daily markto-market margining if, and for as long as, the counterparties follow the daily practice of exchanging collateral to reflect changes in the current exposure arising from the security-based swap (after taking into account any other financial positions addressed by a netting agreement between the counterparties). (B) If the person is permitted by agreement to maintain a threshold for which it is not required to post collateral, the position still will be VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 considered to be subject to daily markto-market margining for purposes of calculating potential outward exposure, but the total amount of that threshold (regardless of the actual exposure at any time) less any initial margin posted up to the amount of that threshold, shall be added to the person’s aggregate uncollateralized outward exposure for purposes of paragraph (a)(2) of this section. (C) If the minimum transfer amount under the agreement is in excess of $1 million, the position still will be considered to be subject to daily markto-market margining for purposes of calculating potential outward exposure, but the entirety of the minimum transfer amount shall be added to the person’s aggregate uncollateralized outward exposure for purposes of paragraph (a)(2) of this section. (D) A person may, at its discretion, calculate the potential outward exposure of positions in security-based swaps that are subject to daily mark-tomarket margining in accordance with paragraph (c)(2) of this section in lieu of calculating the potential outward exposure of such positions in accordance with this paragraph (c)(3). (d) Calculation of daily average. Measures of daily average aggregate uncollateralized outward exposure and daily average aggregate potential outward exposure shall equal the arithmetic mean of the applicable measure of exposure at the close of each business day, beginning the first business day of each calendar quarter and continuing through the last business day of that quarter. (e) Inter-affiliate activities. In calculating its aggregate uncollateralized outward exposure and its aggregate potential outward exposure, a person shall not consider its security-based swap positions with counterparties that are majority-owned affiliates. For these purposes the parties are majority-owned affiliates if one party directly or indirectly owns a majority interest in the other, or if a third party directly or indirectly owns a majority interest in both counterparties to the securitybased swap, where ‘‘majority interest’’ is the right to vote or direct the vote of a majority of a class of voting securities of an entity, the power to sell or direct the sale of a majority of a class of voting securities of an entity, or the right to receive upon dissolution or the contribution of a majority of the capital of a partnership. § 240.3a67–4 Definition of ‘‘hedging or mitigating commercial risk.’’ For purposes of section 3(a)(67) of the Act, 15 U.S.C. 78c(a)(67), and PO 00000 Frm 00159 Fmt 4701 Sfmt 4700 30753 § 240.3a67–1, a security-based swap position shall be deemed to be held for the purpose of hedging or mitigating commercial risk when: (a)(1) Such position is economically appropriate to the reduction of risks that are associated with the present conduct and management of a commercial enterprise (or of a majority owned affiliate of the enterprise), or are reasonably expected to arise in the future conduct and management of the commercial enterprise, where such risks arise from: (i) The potential change in the value of assets that a person owns, produces, manufactures, processes, or merchandises or reasonably anticipates owning, producing, manufacturing, processing, or merchandising in the ordinary course of business of the enterprise (or of an affiliate under common control with the enterprise); (ii) The potential change in the value of liabilities that a person has incurred or reasonably anticipates incurring in the ordinary course of business of the enterprise (or of an affiliate under common control with the enterprise); or (iii) The potential change in the value of services that a person provides, purchases, or reasonably anticipates providing or purchasing in the ordinary course of business of the enterprise (or of an affiliate under common control with the enterprise); (2) Depending on the applicable facts and circumstances, the security-based swap positions described in paragraph (a)(1) of this section may be expected to encompass, among other positions: (i) Positions established to manage the risk posed by a customer’s, supplier’s or counterparty’s potential default in connection with: Financing provided to a customer in connection with the sale of real property or a good, product or service; a customer’s lease of real property or a good, product or service; a customer’s agreement to purchase real property or a good, product or service in the future; or a supplier’s commitment to provide or sell a good, product or service in the future; (ii) Positions established to manage the default risk posed by a financial counterparty (different from the counterparty to the hedging position at issue) in connection with a separate transaction (including a position involving a credit derivative, equity swap, other security-based swap, interest rate swap, commodity swap, foreign exchange swap or other swap, option, or future that itself is for the purpose of hedging or mitigating commercial risk pursuant to this section or 17 CFR 1.3(kkk)); E:\FR\FM\23MYR2.SGM 23MYR2 30754 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations (iii) Positions established to manage equity or market risk associated with certain employee compensation plans, including the risk associated with market price variations in connection with stock-based compensation plans, such as deferred compensation plans and stock appreciation rights; (iv) Positions established to manage equity market price risks connected with certain business combinations, such as a corporate merger or consolidation or similar plan or acquisition in which securities of a person are exchanged for securities of any other person (unless the sole purpose of the transaction is to change an issuer’s domicile solely within the United States), or a transfer of assets of a person to another person in consideration of the issuance of securities of such other person or any of its affiliates; (v) Positions established by a bank to manage counterparty risks in connection with loans the bank has made; and (vi) Positions to close out or reduce any of the positions described in paragraphs (a)(2)(i) through (a)(2)(v) of this section; and (b) Such position is: (1) Not held for a purpose that is in the nature of speculation or trading; and (2) Not held to hedge or mitigate the risk of another security-based swap position or swap position, unless that other position itself is held for the purpose of hedging or mitigating commercial risk as defined by this section or 17 CFR 1.3(kkk). mstockstill on DSK4VPTVN1PROD with RULES2 § 240.3a67–5 Definition of ‘‘substantial counterparty exposure.’’ (a) General. For purposes of section 3(a)(67) of the Act, 15 U.S.C. 78c(a)(67), and § 240.3a67–1, the term substantial counterparty exposure that could have serious adverse effects on the financial stability of the United States banking system or financial markets means a security-based swap position that satisfies either of the following thresholds: (1) $2 billion in daily average aggregate uncollateralized outward exposure; or (2) $4 billion in: (i) Daily average aggregate uncollateralized outward exposure; plus (ii) Daily average aggregate potential outward exposure. (b) Calculation. For these purposes, daily average aggregate uncollateralized outward exposure and daily average aggregate potential outward exposure shall be calculated the same way as is prescribed in § 240.3a67–3, except that these amounts shall be calculated by VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 reference to all of the person’s securitybased swap positions, rather than by reference to a specific major securitybased swap category. § 240.3a67–6 entity.’’ Definition of ‘‘financial (a) General. For purposes of section 3(a)(67) of the Act, 15 U.S.C. 78c(a)(67), and § 240.3a67–1, the term financial entity means: (1) A swap dealer; (2) A major swap participant; (3) A commodity pool as defined in section 1a(10) of the Commodity Exchange Act (7 U.S.C. 1a(10)); (4) A private fund as defined in section 202(a) of the Investment Advisers Act of 1940 (15 U.S.C. 80b– 2(a)); (5) An employee benefit plan as defined in paragraphs (3) and (32) of section 3 of the Employee Retirement Income Security Act of 1974 (29 U.S.C. 1002); and (6) A person predominantly engaged in activities that are in the business of banking or financial in nature, as defined in section 4(k) of the Bank Holding Company Act of 1956 (12 U.S.C. 1843k). (b) Exclusion for centralized hedging facilities. (1) General. Notwithstanding paragraph (a) of this section, for purposes of this section the term financial entity shall not encompass a person that would be a financial entity solely as a result of the person’s activities that facilitate hedging and/or treasury functions on behalf of one or more majority-owned affiliates that themselves do not constitute a financial entity. (2) Meaning of majority-owned. For these purposes the counterparties to a security-based swap are majority-owned affiliates if one counterparty directly or indirectly owns a majority interest in the other, or if a third party directly or indirectly owns a majority interest in both counterparties to the securitybased swap, where ‘‘majority interest’’ includes, but is not limited to, the right to vote or direct the vote of a majority of a class of voting securities of an entity, the power to sell or direct the sale of a majority of a class of voting securities of an entity, or the right to receive upon dissolution or the contribution of a majority of the capital of a partnership. § 240.3a67–7 leveraged.’’ Definition of ‘‘highly (a) General. For purposes of section 3(a)(67) of the Act, 15 U.S.C. 78c(a)(67), and § 240.3a67–1, the term highly leveraged means the existence of a ratio of an entity’s total liabilities to equity in PO 00000 Frm 00160 Fmt 4701 Sfmt 4700 excess of 12 to 1 as measured at the close of business on the last business day of the applicable fiscal quarter. (b) Measurement of liabilities and equity. For purposes of this section, liabilities and equity generally should each be determined in accordance with U.S. generally accepted accounting principles; provided, however, that a person that is an employee benefit plan, as defined in paragraphs (3) and (32) of section 3 of the Employee Retirement Income Security Act of 1974 (29 U.S.C. 1002), may, for purposes of this paragraph (b): (1) Exclude obligations to pay benefits to plan participants from the calculation of liabilities; and (2) Substitute the total value of plan assets for equity. § 240.3a67–8 Timing requirements, reevaluation period, and termination of status. (a) Timing requirements. A person that is not registered as a major securitybased swap participant, but that meets the criteria in § 240.3a67–1 to be a major security-based swap participant as a result of its security-based swap activities in a fiscal quarter, will not be deemed to be a major security-based swap participant until the earlier of the date on which it submits a complete application for registration pursuant to section 15F of the Act (15 U.S.C. 78o– 10) or two months after the end of that quarter. (b) Reevaluation period. Notwithstanding paragraph (a) of this section, if a person that is not registered as a major security-based swap participant meets the criteria in § 240.3a67–1 to be a major securitybased swap participant in a fiscal quarter, but does not exceed any applicable threshold by more than twenty percent in that quarter: (1) That person will not immediately be deemed a major security-based swap participant pursuant to the timing requirements specified in paragraph (a) of this section; but (2) That person will be deemed a major security-based swap participant pursuant to the timing requirements specified in paragraph (a) of this section at the end of the next fiscal quarter if the person exceeds any of the applicable daily average thresholds in that next fiscal quarter. (c) Termination of status. A person that is deemed to be a major securitybased swap participant shall continue to be deemed a major security-based swap participant until such time that its security-based swap activities do not exceed any of the daily average thresholds set forth within § 240.3a67– E:\FR\FM\23MYR2.SGM 23MYR2 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations 1 for four consecutive fiscal quarters after the date on which the person becomes registered as a major securitybased swap participant. mstockstill on DSK4VPTVN1PROD with RULES2 § 240.3a67–9 Calculation of major participant status by certain persons. A person shall not be deemed to be a major security-based swap participant, regardless of whether the criteria in § 240.3a67–1 otherwise would cause the person to be a major security-based swap participant, provided the person meets the conditions set forth in paragraph (a) of this section. (a) Conditions. (1) Caps on uncollateralized exposure and notional positions. (i) Maximum potential uncollateralized exposure. The express terms of the person’s agreements or arrangements relating to security-based swaps with its counterparties at no time would permit the person to maintain a total uncollateralized exposure of more than $100 million to all such counterparties, including any exposure that may result from thresholds or minimum transfer amounts established by credit support annexes or similar arrangements; and (ii) Maximum notional amount of security-based swap positions. The person does not maintain security-based swap positions in an effective notional amount of more than $2 billion in any major category of security-based swaps, or more than $4 billion in aggregate; or (2) Caps on uncollateralized exposure plus monthly calculation. (i) Maximum potential uncollateralized exposure. The express terms of the person’s agreements or arrangements relating to security-based swaps with its counterparties at no time would permit the person to maintain a total uncollateralized exposure of more than $200 million to all such counterparties (with regard to security-based swaps and any other instruments by which the person may have exposure to those counterparties), including any exposure that may result from thresholds or minimum transfer amounts established by credit support annexes or similar arrangements; and (ii) Calculation of positions. (A) At the end of each month, the person performs the calculations prescribed by §§ 240.3a67–3 and 240.3a67–5 with regard to whether the aggregate uncollateralized outward exposure plus aggregate potential outward exposure as of that day constitute a substantial position in a major category of securitybased swaps, or pose substantial counterparty exposure that could have serious adverse effects on the financial stability of the United States banking system or financial markets; these VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 calculations shall disregard provisions of those rules that provide for the analyses to be determined based on a daily average over a calendar quarter; and (B) Each such analysis produces thresholds of no more than: (1) $1 billion in aggregate uncollateralized outward exposure plus aggregate potential outward exposure in any major category of security-based swaps; if the person is subject to § 240.3a67–3(a)(2)(iii), by virtue of being a highly leveraged financial entity that is not subject to capital requirements established by an appropriate Federal banking agency, this analysis shall account for all of the person’s securitybased swap positions in that major category (without excluding hedging positions), otherwise this analysis shall exclude the same hedging and related positions that are excluded from consideration pursuant to § 240.3a67– 3(a)(2)(i); or (2) $2 billion in aggregate uncollateralized outward exposure plus aggregate potential outward exposure (without any positions excluded from the analysis) with regard to all of the person’s security-based swap positions. (3) Calculations based on certain information. (i) At the end of each month: (A)(1) The person’s aggregate uncollateralized outward exposure with respect to its security-based swap positions is less than $500 million with respect to each of the major securitybased swap categories; and (2) The sum of the amount calculated under paragraph (a)(3)(i)(A)(1) of this section with respect to each major security-based swap category and the total notional principal amount of the person’s security-based swap positions in each such major security-based swap category, adjusted by the multipliers set forth in § 240.3a67–3(c)(2)(i)(A) on a position-by-position basis reflecting the type of security-based swap, is less than $1 billion with respect to each of the major security-based swap categories; or (B)(1) The person’s aggregate uncollateralized outward exposure with respect to its security-based swap positions across all major security-based swap categories is less than $500 million; and (2) The sum of the amount calculated under paragraph (a)(3)(i)(B)(1) of this section and the product of the total effective notional principal amount of the person’s security-based swap positions in all major security-based swap categories multiplied by 0.10 is less than $1 billion. PO 00000 Frm 00161 Fmt 4701 Sfmt 4700 30755 (ii) For purposes of the calculations set forth in paragraph (a)(3)(i) of this section: (A) The person’s aggregate uncollateralized outward exposure for positions held with security-based swap dealers shall be equal to such exposure reported on the most recent reports of such exposure received from such security-based swap dealers; and (B) The person’s aggregate uncollateralized outward exposure for positions that are not reflected in any report of exposure from a security-based swap dealer (including all securitybased swap positions it holds with persons other than security-based swap dealers) shall be calculated in accordance with § 240.3a67–3(b)(2). (b) For purposes of the calculations set forth by this section, the person shall use the effective notional amount of a position rather than the stated notional amount of the position if the stated notional amount is leveraged or enhanced by the structure of the position. (c) No presumption shall arise that a person is required to perform the calculations needed to determine if it is a major security-based swap participant, solely by reason that the person does not meet the conditions specified in paragraph (a) of this section. § 240.3a71–1 Definition of ‘‘security-based swap dealer.’’ (a) General. The term security-based swap dealer in general means any person who: (1) Holds itself out as a dealer in security-based swaps; (2) Makes a market in security-based swaps; (3) Regularly enters into securitybased swaps with counterparties as an ordinary course of business for its own account; or (4) Engages in any activity causing it to be commonly known in the trade as a dealer or market maker in securitybased swaps. (b) Exception. The term securitybased swap dealer does not include a person that enters into security-based swaps for such person’s own account, either individually or in a fiduciary capacity, but not as a part of regular business. (c) Scope of designation. A person that is a security-based swap dealer in general shall be deemed to be a securitybased swap dealer with respect to each security-based swap it enters into, regardless of the type, class, or category of the security-based swap or the person’s activities in connection with the security-based swap, unless the Commission limits the person’s E:\FR\FM\23MYR2.SGM 23MYR2 30756 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations designation as a security-based swap dealer to specified types, classes, or categories of security-based swaps or specified activities of the person in connection with security-based swaps. (d) Inter-affiliate activities. (1) General. In determining whether a person is a security-based swap dealer, that person’s security-based swaps with majority-owned affiliates shall not be considered. (2) Meaning of majority-owned. For these purposes the counterparties to a security-based swap are majority-owned affiliates if one counterparty directly or indirectly owns a majority interest in the other, or if a third party directly or indirectly owns a majority interest in both counterparties to the securitybased swap, where ‘‘majority interest’’ is the right to vote or direct the vote of a majority of a class of voting securities of an entity, the power to sell or direct the sale of a majority of a class of voting securities of an entity, or the right to receive upon dissolution or the contribution of a majority of the capital of a partnership. mstockstill on DSK4VPTVN1PROD with RULES2 § 240.3a71–2 De minimis exception. (a) Requirements. For purposes of section 3(a)(71) of the Act (15 U.S.C. 78c(a)(71)) and § 240.3a71–1, a person that is not currently registered as a security-based swap dealer shall be deemed not to be a security-based swap dealer, and, therefore, shall not be subject to section 15F of the Act (15 U.S.C. 78o–10) and the rules, regulations and interpretations issued thereunder, as a result of security-based swap dealing activity that meets the following conditions: (1) Notional thresholds. The securitybased swap positions connected with the dealing activity in which the person—or any other entity controlling, controlled by or under common control with the person—engages over the course of the immediately preceding 12 months (or following the effective date of final rules implementing section 3(a)(68) of the Act (15 U.S.C. 78c(a)(68)) if that period is less than 12 months) have: (i) An aggregate gross notional amount of no more than $3 billion, subject to a phase-in level of an aggregate gross notional amount of no more than $8 billion applied in accordance with paragraph (a)(2)(i) of this section, with regard to credit default swaps that constitute security-based swaps; (ii) An aggregate gross notional amount of no more than $150 million, subject to a phase-in level of an aggregate gross notional amount of no more than $400 million applied in accordance with paragraph (a)(2)(i) of VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 this section, with regard to securitybased swaps not described in paragraph (a)(1)(i) of this section; and (iii) An aggregate gross notional amount of no more than $25 million with regard to all security-based swaps in which the counterparty is a special entity (as that term is defined in section 15F(h)(2)(C) of the Act (15 U.S.C. 78o– 10(h)(2)(C)). (2) Phase-in procedure. (i) Phase-in period. For purposes of paragraphs (a)(1)(i) and (ii) of this section, a person that engages in security-based swap dealing activity that does not exceed either of the phase-in levels set forth in paragraphs (a)(1)(i) and (ii) of this section, as applicable, shall be deemed not to be a security-based swap dealer, and, therefore, shall not be subject to Section 15F of the Act (15 U.S.C. 78o– 10) and the rules, regulations and interpretations issued thereunder, as a result of its security-based swap dealing activity, until the ‘‘phase-in termination date’’ established as provided in paragraph (a)(2)(ii) of this section; provided, however, that this phase-in period shall not be available to the extent that a person engages in securitybased swap dealing activity with counterparties that are natural persons, other than natural persons who qualify as eligible contract participants by virtue of section 1a(18)(A)(xi)(II) of the Commodity Exchange Act, (7 U.S.C. 1a(18)(A)(xi)(II)). The Commission shall announce the phase-in termination date on the Commission Web site and publish such date in the Federal Register. (ii) Establishment of phase-in termination date. (A) Nine months after the publication of the staff report described in Appendix A of this section, and after giving due consideration to that report and any associated public comment, the Commission may either: (1) Terminate the phase-in period set forth in paragraph (a)(2)(i) of this section, in which case the phase-in termination date shall be established by the Commission by order published in the Federal Register; or (2) Determine that it is necessary or appropriate in the public interest to propose through rulemaking an alternative to the $3 billion and $150 million amounts set forth in paragraphs (a)(1)(i) and (ii) of this section, as applicable, that would constitute a de minimis quantity of security-based swap dealing in connection with transactions with or on behalf of customers within the meaning of section 3(a)(71)(D) of the Act, (15 U.S.C. 78c(a)(71)(D)), in which case the Commission shall by order published in the Federal Register provide notice of such determination to PO 00000 Frm 00162 Fmt 4701 Sfmt 4700 propose through rulemaking an alternative, which order shall also establish the phase-in termination date. (B) If the phase-in termination date has not been previously established pursuant to paragraph (a)(2)(ii)(A) of this section, then in any event the phase-in termination date shall occur five years after the data collection initiation date defined in paragraph (a)(2)(iii) of this section. (iii) Data collection initiation date. The term ‘‘data collection initiation date’’ shall mean the date that is the later of: the last compliance date for the registration and regulatory requirements for security-based swap dealers and major security-based swap participants under Section 15F of the Act (15 U.S.C. 78o–10); or the first date on which compliance with the trade-by-trade reporting rules for credit-related and equity-related security-based swaps to a registered security-based swap data repository is required. The Commission shall announce the data collection initiation date on the Commission Web site and publish such date in the Federal Register. (3) Use of effective notional amounts. For purposes of paragraph (a)(1) of this section, if the stated notional amount of a security-based swap is leveraged or enhanced by the structure of the security-based swap, the calculation shall be based on the effective notional amount of the security-based swap rather than on the stated notional amount. (b) Registration period for persons that no longer can take advantage of the exception. A person that has not registered as a security-based swap dealer by virtue of satisfying the requirements of paragraph (a) of this section, but that no longer can take advantage of the de minimis exception provided for in paragraph (a) of this section, will be deemed not to be a security-based swap dealer under section 3(a)(71) of the Act (15 U.S.C. 78c(a)(71)) and subject to the requirements of section 15F of the Act (15 U.S.C. 78o–10) and the rules, regulations and interpretations issued thereunder until the earlier of the date on which it submits a complete application for registration pursuant to section 15F(b) (15 U.S.C. 78o–10(b)) or two months after the end of the month in which that person becomes no longer able to take advantage of the exception. (c) Applicability to registered securitybased swap dealers. A person who currently is registered as a securitybased swap dealer may apply to withdraw that registration, while continuing to engage in security-based swap dealing activity in reliance on this E:\FR\FM\23MYR2.SGM 23MYR2 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations section, so long as that person has been registered as a security-based swap dealer for at least 12 months and satisfies the conditions of paragraph (a) of this section. (d) Future adjustments to scope of the de minimis exception. The Commission may by rule or regulation change the requirements of the de minimis exception described in paragraphs (a) through (c) of this section. (e) Voluntary registration. Notwithstanding paragraph (a) of this section, a person that chooses to register with the Commission as a securitybased swap dealer shall be deemed to be a security-based swap dealer, and, therefore, shall be subject to Section 15F of the Act (15 U.S.C 78o–10) and the rules, regulations and interpretations issued thereunder. mstockstill on DSK4VPTVN1PROD with RULES2 § 240.3a71–2A Report regarding the ‘‘security-based swap dealer’’ and ‘‘major security-based swap participant’’ definitions (Appendix A to 17 CFR 240.3a71–2). Appendix A to § 240.3a71–2 sets forth guidelines applicable to a report that the Commission has directed its staff to make in connection with the rules and interpretations further defining the Act’s definitions of the terms ‘‘security-based swap dealer’’ (including the de minimis exception to that definition) and ‘‘major security-based swap participant.’’ The Commission intends to consider this report in reviewing the effect and application of these rules based on the evolution of the security-based swap market following the implementation of the registration and regulatory requirements of Section 15F of the Act (15 U.S.C. 78o–10). The report may also be informative as to potential changes to the rules further defining those terms. In producing this report, the staff shall consider security-based swap data collected by the Commission pursuant to other Title VII rules, as well as any other applicable information as the staff may determine to be appropriate for its analysis. (a) Report topics. As appropriate, based on the availability of data and information, the report should address the following topics: (1) De minimis exception. In connection with the de minimis exception to the definition of ‘‘securitybased swap dealer,’’ the report generally should assess whether any of the de minimis thresholds set forth in paragraph (a)(1) of § 240.3a71–2 should be increased or decreased; (2) General security-based swap dealer analysis. In connection with the definition of ‘‘security-based swap dealer,’’ the report generally should VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 consider the factors that are useful for identifying security-based swap dealing activity, including the application of the dealer-trader distinction for that purpose, and the potential use of more objective tests or safe harbors as part of the analysis; (3) General major security-based swap participant analysis. In connection with the definition of ‘‘major security-based swap participant,’’ the report generally should consider the tests used to identify the presence of a ‘‘substantial position’’ in a major category of security-based swaps, and the tests used to identify persons whose securitybased swap positions create ‘‘substantial counterparty exposure,’’ including the potential use of alternative tests or thresholds; (4) Commercial risk hedging exclusion. In connection with the definition of ‘‘major security-based swap participant,’’ the report generally should consider the definition of ‘‘hedging or mitigating commercial risk,’’ including whether that latter definition inappropriately permits certain positions to be excluded from the ‘‘substantial position’’ analysis, and whether the continued availability of the exclusion for such hedging positions should be conditioned on a person assessing and documenting the hedging effectiveness of those positions; (5) Highly leveraged financial entities. In connection with the definition of ‘‘major security-based swap participant,’’ the report generally should consider the definition of ‘‘highly leveraged,’’ including whether alternative approaches should be used to identify highly leveraged financial entities; (6) Inter-affiliate exclusions. In connection with the definitions of ‘‘security-based swap dealer’’ and ‘‘major security-based swap participant,’’ the report generally should consider the impact of rule provisions excluding inter-affiliate transactions from the relevant analyses, and should assess potential alternative approaches for such exclusions; and (7) Other topics. Any other analysis of security-based swap data and information the Commission or the staff deem relevant to this rule. (b) Timing of report. The report shall be completed no later than three years following the data collection initiation date, established pursuant to § 240.3a71–2(a)(2)(iii). (c) Public comment on the report. Following completion of the report, the report shall be published in the Federal Register for public comment. Dated: April 27, 2012. PO 00000 Frm 00163 Fmt 4701 Sfmt 4700 30757 By the Commodity Futures Trading Commission. David A. Stawick, Secretary. Dated: April 27, 2012. By the Securities and Exchange Commission. Elizabeth M. Murphy, Secretary. Note: The following appendices will not appear in the Code of Federal Regulations: Appendices by the Commodity Futures Trading Commission to Joint Final Rule Entitled ‘‘Further Definition of ‘Swap Dealer,’ ‘Security-Based Swap Dealer,’ ‘Major Swap Participant,’ ‘Major Security-Based Swap Participant’ and ‘Eligible Contract Participant.’ ’’— Commission Voting Summary and Statements of Commissioners Appendix 1—Commodity Futures Trading Commission Voting Summary On this matter, Chairman Gensler and Commissioners Sommers, Chilton and Wetjen voted in the affirmative; Commissioner O’Malia voted in the negative. Appendix 2—Statement of Chairman Gensler I support the final rule to further define entities, which is pivotal to lowering risk that swap dealers may pose to the rest of the economy. The entities rule fulfills Congress’ direction to further define the terms ‘‘swap dealer,’’ ‘‘major swap participant’’ and ‘‘eligible contract participant’’ and appropriately addresses the many comments we received. It will provide essential direction to market participants on whether they will be required to register. Regulating banks and other firms that deal in derivatives as swap dealers is central to financial reform. Leading up to the financial crisis, it was assumed by many that swap dealers were largely regulated. The 2008 crisis revealed the inadequacy of this approach: While banks were regulated for safety and soundness, including their lending activities, there was no comprehensive regulation of their swap dealing activity. Similarly, bank affiliates dealing in swaps, and subsidiaries of insurance and investment bank holding companies dealing in swaps, were not subject to specific regulation of their swap dealing activities under U.S. law, and thus often had ineffective or no oversight. A prime example of this fact was AIG. AIG was a holding company with a number of regulated insurance companies, but its unregulated swaps subsidiary brought down the company and helped to nearly topple the U.S. economy. The final rule gives market participants guidance on the Dodd-Frank Wall Street Reform and Consumer Protection Act (DoddFrank Act) definition of swap dealer: • First, it does so by allowing market participants to draw on useful precedents developed by the SEC in the traditional E:\FR\FM\23MYR2.SGM 23MYR2 mstockstill on DSK4VPTVN1PROD with RULES2 30758 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations securities market to help distinguish between dealing and trading. • Second, it does so by providing further clarity on the Dodd-Frank Act’s term ‘‘makes a market in swaps’’ by focusing on entities that routinely seek to profit by accommodating other market participants’ demand for swaps. • Third, it does so by clarifying another key term ‘‘regular business,’’ focusing on whether a person has an identifiable swap dealing business. • Fourth, it does so by fulfilling Congress’ mandate that swaps entered into by an insured depository institution in connection with originating a loan are not to be considered dealing activity. • Fifth, it does so by providing direction on the distinction between hedging and dealing and within this provides a specific rule for swaps that hedge price risk associated with a physical commodity. • Sixth, it does so by clarifying that a swap between an agricultural cooperative or a cooperative financial institution and its members does not constitute dealing. • Seventh, it does so by setting a de minimis threshold for swap dealing, as directed by Congress. The threshold is $3 billion total, across all asset classes, subject to a phase in level of $8 billion. As we proposed, the final rule would define as a swap dealer any entity with more than $25 million of dealing activity with pension funds and municipals—so-called ‘‘special entities.’’ True to congressional intent, end-users other than those genuinely making markets in swaps won’t be required to register as swap dealers. The swap dealer definition benefited from the many comments from end-users who use swaps to hedge their risk. As the swap dealing market is dominated by large entities, though, I believe that the final swap dealer definition will encompass the vast majority of swap dealing activity, as Congress had intended. For those who question the level of the de minimis, we considered the threshold in the context of an overall $300 trillion notional amount U.S. swaps market. Further, the statute defines swap dealing by referencing ‘‘making a market in swaps’’ and conducting a ‘‘regular business’’ in swaps. The $3 billion threshold in the rule represents, on average, $12 million a trading day, with the phase-in of $8 billion representing, on average, $32 million notional amount per trading day. Putting this in perspective, the interest rate swap market, transacts, on average, over $500 billion notional amount per day. As further reference, the futures markets for crude oil traded this year, on average, $65 billion of notional amount per day. During this phase-in period the Commissions will collect and analyze data to evaluate the appropriate de minimis threshold. Another question that has been raised is whether the swap dealer definition should appropriately be activities-based or relate to how an entity is classified. The final rule is consistent with Congressional intent that we take an activities-based approach. Though many of these large swap dealers are financial entities, Congress anticipated VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 that some non-banks would be registered as swap dealers. Congress provided in DoddFrank that capital and margin for bank swap dealers would be set by the bank regulators, but for non-bank swap dealers, by the CFTC. Instructive in this regard is the list of primary dealers on the International Swaps and Derivatives Association’s (ISDA) Web site, which includes a number of non-bank dealers. The Association describes as meeting that designation an entity ‘‘that deals in derivatives as part of its business.’’ Congress closed the so-called ‘‘Enron loophole,’’ which let traders evade oversight by using electronic trading platforms. But it is important to recall that Enron was also a swap dealer. Congress did not intend to create a new type of loophole in its place. Congress drafted the swap dealer definition recognizing the fact that some entities are involved in swap dealing activities, as well as other lines of business. Section 1a(49)(C) provides that an entity is a swap dealer only if it engages in swap dealing as ‘‘a regular business.’’ But it does not say that swap dealing must be its only regular business. Further, section 1a(49)(B) specifically provides for the regulation of a single entity as a swap dealer for one part of its business and not for the other part of its business. Given the business realities reflected in the statutory language, there is no compelling reason to think that an entities-based approach would better interpret the statute or that it would, in practice, be simpler than an approach based on what a business actually does. The rule also further defines the term ‘‘major swap participant.’’ Relying on Congress’ three-prong test, this category is clearly limited to only those entities with swaps positions that pose a risk large enough to threaten the U.S. financial system. The further definition of the term ‘‘eligible contract participant’’ provides guidance regarding who is eligible to transact swaps off of an exchange. Based upon the many comments received, we incorporated further guidance to ensure that small businesses and real estate developers can continue to have access to swaps to hedge commercial risks. The final rule also clarifies how the eligible contract participant definition applies to certain foreign exchange transactions conducted by commodity pools. Appendix 3—Statement of Commissioner O’Malia In General I respectfully dissent from the Commodity Futures Trading Commission’s (the ‘‘Commission’’ or ‘‘CFTC’’) approval today of the Entities Rule,1 which is a joint final and interim final rule with the Securities and 1 Further Definition of ‘‘Swap Dealer,’’ ‘‘SecurityBased Swap Dealer,’’ ‘‘Major Swap Participant,’’ ‘‘Major Security-Based Swap Participant,’’ and ‘‘Eligible Contract Participant;’’ Final Rule, (to be codified at 17 CFR part 1), available at [______]. As stated below, this final rule and interim final rule is joint between the Commission and the SEC. Therefore, within this dissent, (i) the term ‘‘Entities Rule’’ refers to the entire rule, (ii) the term ‘‘CFTC Entities Rule’’ refers to only the CFTC portion of such rule, and (iii) the term ‘‘SEC Entities Rule’’ refers to the SEC portion of such rule. PO 00000 Frm 00164 Fmt 4701 Sfmt 4700 Exchange Commission (‘‘SEC’’) under the Dodd-Frank Wall Street Reform and Consumer Protection Act (the ‘‘Dodd-Frank Act’’).2 I have a number of concerns with each definition in the CFTC Entities Rule. However, this dissent focuses on the ‘‘swap dealer’’ definition. Preliminarily, in its proposal,3 the Commission ignored basic canons of statutory construction 4 in defining ‘‘swap dealer.’’ 5 Specifically, the statutory definition has four clauses, lettered (A) through (D). As discussed below, the Commission defined ‘‘swap dealer’’ as encompassed only within CEA section 1a(49)(A). Thus, the Commission advanced a definition focusing on activities, rather than 2 Dodd-Frank Wall Street Reform and Consumer Protection Act, Public Law 111–203, 124 Stat. 1376 (2010). 3 See Further Definition of ‘‘Swap Dealer,’’ ‘‘Security-Based Swap Dealer,’’ ‘‘Major Swap Participant,’’ ‘‘Major Security-Based Swap Participant,’’ and ‘‘Eligible Contract Participant;’’ Proposed Rule, 75 FR 80174 (Dec. 21, 2010) (the ‘‘Proposal’’). 4 The canons of statutory construction are ‘‘important rules and conventions’’ that the judiciary applies to determine the meaning of statutory provisions. Congressional Research Service, Report for Congress, Statutory Interpretation: General Principles and Recent Trends, updated August 31, 2008 (the ‘‘CRS Report’’) (Summary). In general, it behooves agencies (such as the Commission) to adhere to such canons so that its regulations, if subject to legal challenge, would be more likely to survive judicial scrutiny. In the CFTC Entities Rule, the Commission acknowledges the importance of canons of statutory construction, since it cites to certain canons in determining the application of its ‘‘eligible contract participant’’ definition. See Section III(B)(4) of the CFTC Entities Rule. 5 The statutory definition of ‘‘swap dealer’’ can be found in section 1a(49) of the Commodity Exchange Act (the ‘‘CEA’’), 7 U.S.C. 1a(49). For purposes of reference, the text of CEA section 1a(49) is as follows: ‘‘(49) SWAP DEALER.— ‘‘(A) IN GENERAL.—The term ‘swap dealer’ means any person who— ‘‘(i) holds itself out as a dealer in swaps; ‘‘(ii) makes a market in swaps; ‘‘(iii) regularly enters into swaps with counterparties as an ordinary course of business for its own account; or ‘‘(iv) engages in any activity causing the person to be commonly known in the trade as a dealer or market maker in swaps, provided however, in no event shall an insured depository institution be considered to be a swap dealer to the extent it offers to enter into a swap with a customer in connection with originating a loan with that customer. ‘‘(B) INCLUSION.—A person may be designated as a swap dealer for a single type or single class or category of swap or activities and considered not to be a swap dealer for other types, classes, or categories of swaps or activities. ‘‘(C) EXCEPTION.—The term ‘swap dealer’ does not include a person that enters into swaps for such person’s own account, either individually or in a fiduciary capacity, but not as a part of a regular business. ‘‘(D) DE MINIMIS EXCEPTION.—The Commission shall exempt from designation as a swap dealer an entity that engages in a de minimis quantity of swap dealing in connection with transactions with or on behalf of its customers. The Commission shall promulgate regulations to establish factors with respect to the making of this determination to exempt.’’ E:\FR\FM\23MYR2.SGM 23MYR2 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES2 the entities conducting these activities.6 The Commission then minimized the other clauses of the definition. Specifically, the Commission characterized CEA section 1a(49)(C) as an ‘‘exception’’ for certain activities. The Commission also characterized CEA section 1a(49)(B) as only authorizing ‘‘limited designation.’’ 7 I have always disagreed with the Proposal. By focusing on the activities in CEA section 1a(49)(A), the Commission essentially used the ‘‘swap dealer’’ definition to capture commercial end-users.8 Congress clearly precluded this result. As described below, CEA section 1a(49)(C) provides a mandatory exclusion for commercial end-users.9 Alternatively, CEA section 1a(49)(B) permits the Commission to exercise its discretion to exclude commercial end-users, so long as the Commission articulates a rational basis for such differential treatment.10 The Commission has many reasons for exercising its discretion, including certain statutory reasons. Today, the Commission has erected the CFTC Entities Rule on the infirm scaffold of the Proposal. To be sure, the Commission has performed astonishing contortions to afford 6 See Proposed Rule; 75 FR at 80175, 80179 (stating that ‘‘The Dodd-Frank Act defines the terms ‘swap dealer’ * * * in terms of whether a person engages in certain types of activities involving swaps or security-based swaps * * * Based on the plain meaning of the statutory definition, so long as a person engages in dealing activity that is not de minimis, as discussed below, the person is a swap dealer * * *’’). 7 The following example illustrates the difference between (i) an ‘‘exception’’ and (ii) an ‘‘exclusion.’’ Imagine a circle entitled ‘‘swap dealer.’’ ‘‘Exceptions’’ are circles within the ‘‘swap dealer’’ circle. In essence, entities within those circles are subcategories of ‘‘swap dealer’’ permitted special treatment. ‘‘Exclusions’’ are circles entirely separate from the ‘‘swap dealer’’ circle. In essence, entities within those circles are not ‘‘swap dealers’’ in the first instance. As described below, CEA section 1a(49)(C), 7 U.S.C. 1a(49)(C), provides a mandatory ‘‘exclusion’’ from the ‘‘swap dealer’’ definition for— at a minimum—non-financial entities that do not have ‘‘a regular business’’ of entering into swap transactions. To be clear, this ‘‘exclusion’’ applies to entities, and not solely to their activities. Similarly, CEA section 1a(49)(B), 7 U.S.C. 1a(49)(B), provides a discretionary ‘‘exclusion’’ from the ‘‘swap dealer’’ definition (rather than just ‘‘limited designation,’’ as the Commission contends). 8 See, e.g., Opening Statement, Sixth Series of Proposed Rulemakings under the Dodd-Frank Act, Dec. 1, 2010, available at https://www.cftc.gov/ PressRoom/SpeechesTestimony/ omaliastatement120110; and Jobs on Main Street vs. Wall Street: The Choice Should be Clear, 2011 Futures Industry Association Energy Forum, New York, Keynote Address, Sept. 14, 2011, available at https://www.cftc.gov/PressRoom/ SpeechesTestimony/opaomalia-8. 9 See supra note 5 for the exact text of CEA section 1a(49)(C), 7 U.S.C. 1a(49)(C). See also supra note 7 for an explanation of the difference between (i) an ‘‘exception’’ and (ii) an ‘‘exclusion.’’ The collapse of CEA section 1a(49)(C) (referencing ‘‘a regular business’’) into CEA section 1a(49)(A)(iii), 7 U.S.C. 1a(49)(A)(iii) (referencing ‘‘an ordinary course of business’’), illustrates that the Commission still considers entities within CEA section 1a(49)(C) as subcategories of ‘‘swap dealers,’’ absent Commission largesse. 10 Id. for the exact text of CEA section 1a(49)(B), 7 U.S.C. 1a(49)(B). VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 greater certainty to commercial end-users.11 However, the Commission could have provided equivalent or superior certainty by properly construing CEA sections 1a(49)(C) and (B), either initially or in a re-proposal. By preserving and furthering the statutory misconstructions in the Proposal, the CFTC Entities Rule may ultimately provide illusory comfort. Therefore, I cannot support the CFTC Entities Rule. The ‘‘Swap Dealer’’ Definition: Fundamental Misconstruction • CEA section 1a(49)(A): Not the Entire ‘‘Swap Dealer’’ Definition A statute should be read as a ‘‘harmonious whole.’’ 12 This statement is a basic canon of statutory construction.13 The Commission has failed to follow such canon in defining ‘‘swap dealer.’’ As mentioned above, in the CFTC Entities Rule (as in the Proposal), the Commission insists that CEA section 1a(49)(A) is the entirety of the ‘‘swap dealer’’ definition. According to the Commission, any entity engaged in any activity enumerated in CEA section 1a(49)(A) is a ‘‘swap dealer’’ 14 (unless otherwise ‘‘excepted’’).15 Specifically, the Commission states: ‘‘The Dodd-Frank Act definitions of the term ‘swap dealer’ * * * focus on whether a person engages in particular types of activities involving swaps * * *.’’ 16 Also, the Commission states: ‘‘The CEA * * * [definition] in general encompass persons that engage in any of the [activities in CEA section 1a(49)(A)].’’ 17 Finally, the Commission characterizes the activities in CEA section 1a(49)(A) as ‘‘dealer activities.’’ 18 • CEA section 1a(49)(C): Mandatory Exclusion for Entities CEA section 1a(49) contradicts in both its language and structure the Commission’s focus on the activities of CEA section 1a(49)(A). Specifically, CEA section 1a(49)(C), when properly construed, sets forth a mandatory exclusion that focuses on the characteristics of an entity, and not 11 In the CFTC Entities Rule, the Commission departs from the Proposal in the following ways, among others: (i) acknowledging that there is a difference between dealing, trading, and hedging; (ii) setting forth an explicit exception for swaps that an entity enters into in its capacity as a floor trader (as defined in CEA section 1a(23), 7 U.S.C. 1a(23)); (iii) providing another explicit exception for certain hedging activities; (iv) providing an exception for swaps between majority-owned affiliates; and (iv) setting forth a phase-in period with a higher de minimis threshold. 12 See, e.g., the CRS Report, p. CRS–2. 13 Id. 14 As mentioned above, CEA section 1a(49)(A), 7 U.S.C. 1a(49)(A), states that the term ‘‘swap dealer’’ means ‘‘any person who—(i) holds itself out as a dealer in swaps; (ii) makes a market in swaps; (iii) regularly enters into swaps with counterparties as an ordinary course of business for its own account; or (iv) engages in any activity causing the person to be commonly known in the trade as a dealer or market maker in swaps.’’ 15 See supra note 9. 16 Section II of the CFTC Entities Rule. 17 Id. 18 Id. PO 00000 Frm 00165 Fmt 4701 Sfmt 4700 30759 exclusively on its activities. CEA section 1a(49)(C) states: ‘‘The term ‘swap dealer’ does not include a person that enters into swaps for such person’s own account, either individually or in a fiduciary capacity, but not as part of a regular business.’’ First, CEA section 1a(49)(C) is as central to the ‘‘swap dealer’’ definition as CEA section 1a(49)(A). CEA section 1a(49)(C) begins with ‘‘The term ‘swap dealer’ does not include * * *’’. In comparison, CEA section 1a(49)(A) begins with ‘‘The term ‘swap dealer’ means * * *’’. Therefore, according to their plain language, CEA section 1a(49)(C) and CEA section 1a(49)(A) are equal and opposite of each other. In essence, CEA section 1a(49)(C) sets forth the exclusion criteria for the ‘‘swap dealer’’ definition, whereas CEA section 1a(49)(A) sets forth the inclusion criteria. Second, CEA section 1a(49)(C) focuses on the characteristics of entities, and not solely on their activities. CEA section 1a(49)(C) states that ‘‘[t]he term ‘swap dealer’ does not include a person that enters into swaps * * * not as part of a regular business.’’ In contrast, CEA section 1a(49)(A)(iii) states that the ‘‘swap dealer’’ definition encompasses any person that ‘‘regularly enters into swaps with counterparties as an ordinary course of business for its own account.’’ If the Commission is correct in presuming that CEA section 1a(49)(A) focuses on activities, then the phrase ‘‘regularly enters into swaps * * * as an ordinary course of business’’ must refer to an activity. However, Congress used different words in CEA section 1a(49)(C). According to a basic canon of statutory construction, when Congress uses different words, it intends different meanings. In other words, a court should strive to give effect to every word of a statute.19 The Commission could have easily given effect to every word of CEA section 1a(49)(C), while according the same respect to CEA section 1a(49)(A)(iii). Juxtaposing CEA section 1a(49)(C) and CEA section 1a(49)(A)(iii), the following construction emerges: a ‘‘person’’ (i.e., an entity) is not a ‘‘swap dealer’’ if it enters into swaps for ‘‘its own account’’ (i.e., as principal) in the ‘‘ordinary course of business’’ (i.e., normally while conducting business), provided that entering into these swaps is not its ‘‘regular business’’ (i.e., entering into swaps is ancillary to its core business).20 19 The CRS Report, p. CRS–14 (stating that ‘‘A basic principle of statutory construction is that courts should ‘give effect, if possible to every clause and word of a statute, avoiding, if it may be, any construction which implies that the legislature was ignorant of the meaning of the language it employed.’’ (quoting Montclair v. Ramsdell, 107 U.S. 147, 152 (1883)). See also the CRS Report, CRS–12, footnote 62 (discussing the ‘‘modern variant’’ of this canon). 20 As mentioned below, certain financial entities may also satisfy these criteria, such as ‘‘special entities’’ (as defined in CEA section 4s(h)(2)(C), 7 U.S.C. 6s(h)(2)(C) (e.g., certain employee benefit plans covered by the Employee Retirement Income Security Act of 1974 (‘‘ERISA’’)). If the Commission wanted to prevent other financial entities from abusing CEA section 1a(49)(C), 7 U.S.C. 1a(49)(C), the Commission could have preliminarily limited E:\FR\FM\23MYR2.SGM Continued 23MYR2 30760 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES2 If the Commission had adopted this construction, the Commission would have per se excluded commercial end-users. Such exclusion would have permitted these entities to freely hedge their business risks, whether financial or physical, without fear of becoming a ‘‘swap dealer.’’ Just to provide some context, commercial end-users include Caterpillar, John Deere, and ConAgra Foods. These entities have ‘‘a regular business’’ of supplying energy, food, and other tangible products to America. To these entities, swaps are ancillary tools that they can use to manage risk. These entities suffered from— rather than perpetrated—the 2008 financial crisis. Yet, these entities (either individually or through trade associations) took the time to draft and submit comment letters to the Commission—sometimes multiple letters— because they were afraid of being defined as ‘‘swap dealers.’’ If the Commission had any doubt regarding the above construction, the Commission could have referred to various letters from members of Congress. Such letters explicitly state that Congress intended to exclude commercial end-users. For example, former Chairman Christopher Dodd and Chairwoman Blanche Lincoln circulated a joint letter stating: ‘‘Congress does not intend to regulate end-users as Major Swap Participants or Swap Dealers just because they use swaps to hedge or manage the commercial risks associated with their business.’’ 21 Both senators Dodd and Lincoln were instrumental in shaping the legislation that became the Dodd-Frank Act. Recently, Chairwoman Debbie Stabenow and Chairman Frank Lucas reiterated this point: [I]t is important for the Commission to the exclusion to commercial end-users (or other entities that the Commission determines could be excluded based on a holistic reading of the DoddFrank Act and the CEA, including small financial institutions as delineated in CEA section 2(h)(7)(C), 7 U.S.C. 2(h)(7)(C)). Additionally, if the Commission wanted to prevent commercial endusers (or such other entities) from abusing CEA section 1a(49)(C) (by, e.g., entering into nonancillary transactions in swaps), the Commission has anti-evasion authority under section 721(c) of the Dodd-Frank Act. The regulations that the Commission promulgates under the Dodd-Frank Act will irrevocably change the structure of the swap markets. Such changes have benefits and costs. To properly weigh the benefits and costs of its regulations under CEA section 15(a), 7 U.S.C. 19(a), it would have behooved the Commission to have discussed (i) categorically excluding certain entities from the ‘‘swap dealer’’ definition within the phase-in period, and (ii) exercising anti-evasion authority, if the Commission found it necessary based on its surveillance of the swaps market. 21 Letter from Chairman Christopher Dodd, Committee on Banking, Housing, and Urban Affairs, United States Senate, and Chairman Blanche Lincoln, Committee on Agriculture, Nutrition, and Forestry, United States Senate, to Chairman Barney Frank, Financial Services Committee, United States House of Representatives, and Chairman Collin Peterson, Committee on Agriculture, United States House of Representatives (June 30, 2010) (the ‘‘Dodd-Lincoln Letter’’). The Dodd-Lincoln Letter (as well as the Stabenow-Lucas Letter (as defined below)) appears to have embraced a broader conception of ‘‘commercial risk’’ than the Commission. See infra note 42. VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 finalize the swap dealer definition in a manner that is not overly broad, and that will not impose significant new regulations on entities that Congress did not intend to be regulated as swap dealers. The Commission’s final rulemaking further defining ‘swap dealing’ should clearly distinguish swap activities that end-users engage in to hedge or mitigate the commercial risks associated with their businesses, including swaps entered into by end-users to hedge physical commodity price risk, from swap dealing.22 It is important to note that Chairwoman Stabenow and Chairman Lucas lead the Congressional committees charged with overseeing the Commission. Æ CEA section 1a(49)(B): Discretionary Exclusion for Entities In the alternative (assuming that the Commission rejects the above construction), CEA section 1a(49)(B) also contradicts the Commission’s focus on the activities in CEA section 1a(49)(A). Specifically, CEA section 1a(49)(B), when properly construed, sets forth a permissive exclusion focused on entities, with respect to either their activities or their swaps. CEA section 1a(49)(B) states: ‘‘A person may be designated as a swap dealer for a single type or single class or category of swap or activities and considered not to be a swap dealer for other types, classes, or categories of swaps or activities.’’ First, CEA section 1a(49)(B) references ‘‘[a] person.’’ CEA section 1a(38) 23 defines ‘‘person’’ as ‘‘import[ing] the plural or singular.’’ Read together, the sections indicate that CEA section 1a(49)(B) focuses on either (i) an entity or (ii) multiple entities. Second, CEA section 1a(49)(B) states that ‘‘[a] person’’ (or ‘‘persons’’) could be ‘‘considered not to be’’ a ‘‘swap dealer’’ for ‘‘types, classes, or categories of swaps.’’ So, an entity could be excluded from the ‘‘swap dealer’’ definition with respect to, e.g., physical commodity swaps, regardless of its activity with respect to such swaps. That indicates that the ‘‘swap dealer’’ definition does not solely focus on activity, as the Commission maintains. Instead, the characteristics of the entity and the underlying swaps are also relevant. Third, CEA section 1a(49)(B) states that ‘‘[a] person’’ (or ‘‘persons’’) could be ‘‘considered not to be’’ a ‘‘swap dealer’’ for certain ‘‘activities.’’ So, even if an entity engages in ‘‘activities’’ in CEA section 1a(49)(A), that entity may nevertheless not be a ‘‘swap dealer.’’ That indicates that the ‘‘swap dealer’’ definition may not even predominantly focus on activity. Finally, CEA section 1a(49)(B) permits the Commission to include one ‘‘person’’ (or a group of ‘‘persons’’) engaging in certain activities in the ‘‘swap dealer’’ definition, but to exclude another ‘‘person’’ (or group of ‘‘persons’’) engaging in the same activities. Of course, the Commission has to articulate a rational basis for differential treatment. As 22 Letter from Chairwoman Debbie Stabenow, Committee on Agriculture, Nutrition, and Forestry, United States Senate, and Chairman Frank D. Lucas, Committee on Agriculture, United States House of Representatives to Chairman Gary Gensler, United States Commodity Futures Trading Commission (March 29, 2012) (the ‘‘Stabenow-Lucas Letter’’). 23 7 U.S.C. 1a(38). PO 00000 Frm 00166 Fmt 4701 Sfmt 4700 discussed below, there may be certain statutory bases for differentiation (including the reference to ‘‘financial entity’’ in the enduser exception). Nothing in CEA section 1a(49)(B) prevents the Commission from so differentiating through rulemaking (rather than individual determinations). Æ Unnecessary Statutory Contortions Instead of following the canons of statutory construction and properly interpreting CEA section 1a(49)(C) and CEA section 1a(49)(B), the Commission engages in a series of contortions with seemingly opposing purposes. Upon review, these contortions appear to stem from a desire of the Commission to provide a measure of certainty to commercial end-users in the CFTC Entities Rule, without explicitly contradicting the Proposal. Preliminarily, the Commission appears to broadly define ‘‘swap dealer’’ to capture commercial end-users. For example, both the Proposal and the CFTC Entities Rule obfuscate the application of CEA section 1a(49)(C) to entities (rather than solely to activities) by collapsing CEA section 1a(49)(C) into CEA section 1a(49)(A)(iii).24 In 24 In Section II(A)(4)(d) of CFTC Entities Rule, the Commission states: ‘‘We recognize, as noted by one commenter (see letter from ISDA I), that the ‘regular business’ exclusion is not limited solely to the ‘ordinary course of business’ test of the swap dealer definition. Our interpretations of the other three tests are, and should be read to be, consistent with the exclusion of activities that are not part of a regular business.’’ Preliminarily, I would note that more than one commenter observed the collapse. Secondarily, as noted above, CEA section 1a(49)(C), 7 U.S.C. 1a(49)(C), applies to entities (and not solely to activities). Therefore, the Commission does not (and really cannot) argue that the collapse of CEA section 1a(49)(C) into CEA section 1a(49)(A)(iii), 7 U.S.C. 1a(49)(A)(iii), has little to no impact on its construction of CEA sections 1a(49)(A)(i), (ii), and (iv), 7 U.S.C. 1a(49)(A)(i), (ii), and (iv). Finally, although it is ambiguous in the CFTC Entities Rule (and not contemplated in the Proposal), it seems like the Commission may be indirectly relying on its reference to the dealertrader distinction to justify its collapse of CEA section 1a(49)(C) and 1a(49)(A)(iii). Interestingly, the SEC does not state that ‘‘regular business’’ in Exchange Act section 3(a)(71)(C), 15 U.S.C. 78c(a)(71)(C)) (parallel to CEA section 1a(49)(C)), is ‘‘synonymous’’ with ‘‘ordinary course of business’’ in Exchange Act section 3(a)(71)(A)(iii), 15 U.S.C. 78c(a)(71)(A) (parallel to CEA section 1a(49)(A)(iii)). Of course, it may have been understood that the SEC would hew more closely to the dealer-trader distinction, as historically applicable to securities, and thus would focus on activities and not entities. See Section II(A)(3) of the Entities Rule. However, one wonders that of all the distinctions that the Commission makes or attempts to preserve between the swaps and securities-based swaps markets, the Commission does not acknowledge (i) the ‘‘high degree of concentration’’ of dealing in the securities-based swaps markets among the largest financial entities and (ii) the lack of similar concentration in the swaps markets (particularly with respect to markets that commercial end-users frequent, such as the physical commodity swaps markets). Compare generally Section II(D)(5) of the SEC Entities Rule (which repeatedly references ‘‘high degree of concentration’’) with Section II(D)(4) of the CFTC Entities Rule (which does not contain such references). See also Section II(A)(2)(e)(iii) of the CFTC Entities Rule (describing comments with respect to electricity swaps). The E:\FR\FM\23MYR2.SGM 23MYR2 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES2 performing such collapse, the Commission states that it ‘‘continue[s] to believe, as stated in the [Proposal], that the phrases ‘ordinary course of business’ and ‘a regular business’ are, for purposes of the definition of ‘swap dealer’ essentially synonymous.’’ 25 Neither the Proposal nor the CFTC Entities Rule fully supports collapsing CEA section 1a(49)(C)— one of four clauses in the statutory ‘‘swap dealer’’ definition—into CEA section 1a(49)(A)(iii)—a subparagraph of one clause. Further, neither the Proposal nor the CFTC Entities Rule fully supports interpreting two separate phrases (i.e., ‘‘ordinary course of business’’ and ‘‘regular business’’) as meaning the same thing. The Commission similarly minimizes CEA section 1a(49)(B) as providing for ‘‘limited designation’’ only, rather than an alternate source of authority for the Commission to exclude certain entities from the ‘‘swap dealer’’ definition.26 However, after appearing to broadly define ‘‘swap dealer’’, the Commission then cobbles together various measures that aim—with differing levels of success—to provide a measure of certainty to commercial endusers. The most important (and successful) of these measures is a higher de minimis threshold. Two other important measures are: (i) referencing the dealer-trader distinction and (ii) incorporating an explicit hedging exception. Although these measures reflect positive policy choices, they also reflect various compromises that may ultimately diminish the certainty that they seek to provide. As mentioned above, the Commission could have provided equivalent or superior certainty by properly construing CEA Commission should have accorded greater consideration to differences in market structure before dismissing a construction of CEA section 1a(49)(C) as focusing on entities (and as independent of CEA section 1a(49)(A)(iii)). 25 Section II(A)(4)(d) of the CFTC Entities Rule. 26 The Commission characterizes CEA section 1a(49)(B), 7 U.S.C. 1a(49)(B), as ‘‘limited designation’’ based on a series of misconstructions. First, as noted above, the Commission insists that CEA section 1a(49)(A), 7 U.S.C. 1a(49)(A), is the entirety of the ‘‘swap dealer’’ definition. Second, the Commission then interprets CEA section 1a(49)(B) to apply to the registration of an entity as a ‘‘swap dealer,’’ and not to the ‘‘swap dealer’’ definition. Third, because CEA section 1a(49)(B) applies to registration, the Commission concludes that it would be appropriate to apply an individualized, facts-and-circumstances analysis. In actuality, CEA section 1a(49)(B) does more than provide for ‘‘limited designation.’’ First, as discussed above, CEA section 1a(49)(A) sets forth general parameters for defining ‘‘swap dealer.’’ The entirety of the ‘‘swap dealer’’ definition is actually CEA sections 1a(49)(A), (B), (C), and (D), 7 U.S.C. 1a(49)(A), (B), (C), and (D). Second, CEA section 1a(49)(B) is in the definition of ‘‘swap dealer.’’ It is not in CEA section 4s(a), 7 U.S.C. 6s(a), which pertains to registration of ‘‘swap dealers.’’ Therefore, the Commission should have considered the effect of CEA section 1a(49)(B) in delineating the universe of entities that need to seek registration with the Commission, and not solely the effect of CEA section 1a(49)(B) in determining the scope of registration that the Commission would afford such entities. Third, because CEA section 1a(49)(B) relates to the definition and not the registration of ‘‘swap dealers,’’ the Commission articulates no basis for an individualized, facts-and-circumstances determination. VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 sections 1a(49)(C) and (B), either initially or in a re-proposal. Æ Reference to the Dealer-Trader Distinction In the CFTC Entities Rule, the Commission states that it ‘‘believe[s] that the dealer-trader distinction—which already forms a basis for identifying which persons fall within the longstanding Exchange Act definition of ‘dealer’—in general provides an appropriate framework for interpreting the statutory definition of the term ‘swap dealer.’’’ 27 In so recognizing, the Commission departs from the Proposal.28 I have always argued that differences exist among (i) dealing, (ii) trading, and (iii) hedging. I have also recommended that the Commission provide guidance to clearly distinguish among the three categories. Such guidance would aid market participants in determining whether to register as a ‘‘swap dealer.’’ Although the CFTC Entities Rule contains (i) an interim final hedging exception 29 and (ii) a final ‘‘floor trader’’ exclusion, 30 both provisions are limited in scope. Therefore, market participants will still need clear guidance on Commission interpretation of the dealertrader distinction, in order to determine whether their trading or hedging transactions may cause them to be deemed ‘‘swap dealers.’’ Unfortunately, the Commission has missed its opportunity in the CFTC Entities Rule. After reading the relevant portions of the rulemaking multiple times, it is still unclear to me exactly how the Commission intends to distinguish among (i) dealing, (ii) trading (outside of the limited ‘‘floor trader’’ exclusion), and (iii) hedging (outside of the specific hedging exception, which I discuss below). For example, the Commission states: ‘‘[t]he principles embedded within the 27 Section II(A)(4)(a) of the CFTC Entities Rule. Commission acknowledges such departure, but attempts to mitigate its legal effect by emphasizing that (i) the dealer-trader framework overlaps with the functional approach in the Proposal, and (ii) the Commission has changed its interpretative approach to the ‘‘swap dealer’’ definition in response to comments. See Section II(A)(4)(a) of the CFTC Entities Rule. 29 As described below, this exception only applies to physical commodity swaps. Therefore, commercial end-users would not be able to rely on this exception for swaps to hedge financial risks. Moreover, small financial institutions would not be able to rely on this exception (as they most likely would be hedging financial risk), even if the Commission were to permit them to use the enduser exception. Finally, even financial entities (such as ‘‘special entities’’) may engage in ‘‘hedging’’ without ‘‘dealing.’’ The CFTC Entities Rule does not provide much clarity on how such financial entities could demonstrate that they are not ‘‘dealing’’ (other than the amorphous distinction between ‘‘purpose’’ and ‘‘consequences’’). 30 The final ‘‘floor trader’’ exclusion has many limitations. For example, an entity cannot rely on this exclusion if it participates in a market-making program offered by a designated contract market (‘‘DCM’’) or swap execution facility. One wonders what would happen if an entity participates in a DCM market-making program for futures, and then the Commission requires such futures to be converted to swaps in a forthcoming rulemaking. See, e. g., Core Principles and Other Requirements for Designated Contract Markets, 75 FR 80572 (Dec. 22, 2010). 28 The PO 00000 Frm 00167 Fmt 4701 Sfmt 4700 30761 ‘dealer trader distinction’ are also applicable to distinguishing dealers from non-dealers such as hedgers or investors.’’ 31 I agree with this statement. The Commission also cites to more support from the SEC Entities Rule— specifically the fact that ‘‘[t]he ‘dealer-trader’ nomenclature has been used for decades.’’ 32 I also agree with this statement. However, the Commission then states: ‘‘These same principles, though instructive, may be inapplicable to swaps in certain circumstances or may be applied differently in the context of dealing activities involving commodity, interest rate, or other types of swaps.’’ 33 I do not know whether to agree or disagree with this statement, given its ambiguity. Thus, for all of its girth, the CFTC Entities Rule fails to answer a basic question—namely, under which circumstances would an entity be deemed a dealer (rather than a trader or hedger) with respect to specific swap transactions? 34 The Commission appears to argue that inherent differences between the swaps markets and securities markets (other than security-based swaps) justify its selective incorporation of dealer-trader elements (which elements, in themselves, apparently vary according to unknown facts and circumstances). For example, the Commission states that an entity need not engage in two-way transactions in order to fall within the ‘‘swap dealer’’ definition. One justification that the Commission advances is that ‘‘swaps thus far are not significantly traded on exchanges or other trading systems’’ and that this ‘‘[attribute]—along with the lack of ‘buying and selling’ language in the swap dealer definition * * *— suggest that concepts of what it means to make a market need to be construed flexibly in the contexts of the swap market.’’ 35 However, in the same section of the CFTC Entities Rule, the Commission states: ‘‘many cash market securities also are not significantly traded on those systems.’’ 36 Therefore, the Commission advances a justification for selective incorporation of dealer-trader elements and then contradicts its justification in the same paragraph. Thus, even if market participants wished to understand Commission reasoning to determine whether they need to register as ‘‘swap dealers,’’ they may not be able to do so. Finally, the Commission and the SEC appear to emphasize different dealer-trader elements. For example, the Commission tends to emphasize ‘‘accommodating demand 31 Section II(A)(4)(a) of the CFTC Entities Rule. II(A)(5)(a) of the SEC Entities Rule. 33 Section II(A)(3) of the Entities Rule. 34 For example, in Section II(A)(4)(a) of the CFTC Entities Rule, the Commission sets forth a list of indicia that are either ‘‘particularly similar to’’ or ‘‘generally consistent with * * * the dealer-trader distinction as it will be applied to determine whether a person is a security-based swap dealer.’’ However, the Commission immediately undermines any comfort that such list could provide by stating ‘‘[t]o clarify, the activities listed in the text are indicative of acting as a swap dealer. Engaging in one or more of these activities is not a prerequisite to a person being covered by the swap dealer definition.’’ 35 Section II(A)(4)(a) of the CFTC Entities Rule. 36 Id. 32 Section E:\FR\FM\23MYR2.SGM 23MYR2 30762 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES2 or facilitating interest in the instrument.’’ 37 In contrast, the SEC tends to emphasize ‘‘a business model that seeks to profit by providing liquidity.’’ 38 The Commission fails to provide a rationale for its difference in focus.39 On its face, ‘‘accommodating demand or facilitating interest’’ seems to capture more traders and hedgers than having ‘‘a business model that seeks to profit by providing liquidity.’’ Æ Interim Final Rule on Hedging In the CFTC Entities Rule, the Commission has included an interim final rule excepting certain hedging transactions from the ‘‘swap dealer’’ definition (i.e., Regulation 1.3(ggg)(6)(iii)).40 I agree that hedging is not dealing. However, I find the interim final rule excessively narrow. First, the interim final rule only applies to a limited set of physical commodity hedges. I am not sure why the Commission does not wish to allow commercial end-users to hedge financial risks (e.g., through interest rate swaps) without fearing that they could be deemed ‘‘swap dealers.’’ 41 Permitting such hedging would be consonant with Congressional intent, as expressed in the letters from members of Congress.42 Conversely, I am not 37 See generally Section II(A)(4) of the CFTC Entities Rule. 38 See generally Section II(A)(5) of the SEC Entities Rule. The CFTC Entities Rule does acknowledge that seeking to profit from providing liquidity is one indicia of dealing. However, the CFTC Entities Rule limits its discussion of this indicia to CEA section 1a(49)(A)(ii), 7 U.S.C. 1a(49)(A)(ii), which emphasizes market-making. The Commission appears to rely more heavily on ‘‘accommodating demand or facilitating interest’’ (without necessarily emphasizing a ‘‘business model that seeks to profit from providing liquidity’’) in its interpretation of the remainder of CEA section 1a(49)(A), 7 U.S.C. 1a(49)(A). Therefore, a dissonance still exists between the CFTC Entities Rule and the SEC Entities Rule. 39 See supra note 24. The Commission could have focused on differences in market composition. Unfortunately, such focus could have raised other issues with Commission construction of CEA section 1a(49), 7 U.S.C. 1a(49). 40 See Section II(A)(4)(e) of the CFTC Entities Rule. 41 The Commission relies on its misconstruction of the statutory ‘‘swap dealer’’ definition to justify such a narrow exclusion. In Section II(A)(4)(e) of the CFTC Entities Rule, the Commission states: ‘‘In terms of the statutory definition of the term ‘swap dealer,’ the CFTC notes as an initial matter that there is no specific provision addressing hedging activity. Thus, the statutory definition leaves the treatment of hedging swaps to the CFTC’s discretion; it neither precludes consideration of a swap’s hedging purpose, nor does it require an absolute exclusion of all swaps used for hedging.’’ As noted above, whereas CEA section 1a(49) does not specifically refer to ‘‘hedging,’’ CEA section 1a(49)(C), 7 U.S.C. 1a(49)(C), (as well as CEA section 1a(49)(B), 7 U.S.C. 1a(49)(B))—as properly construed—would have excluded commercial endusers that engage in swaps for purposes of hedging. It is interesting that the SEC did not endorse these specific sentences. 42 As mentioned above, the Commission contorts itself in the CFTC Entities Rule to provide an interim hedging exception that applies only to physical commodity risks. This approach runs contrary to the Dodd-Lincoln Letter (as well as the Stabenow-Lucas Letter). Both letters emphasize exclusions for entities—such as commercial end- VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 sure why the Commission wants to encourage, e.g., banking entities—like Barclays—to own physical commodities and claim the hedge exception. Second, there are four other hedging definitions that are either (i) currently effective or (ii) the subject of a Dodd-Frank Act proposal.43 Given the call by President Obama to simplify regulation,44 I would have expected the Commission to refrain from proposing a fifth hedging definition, unless strictly necessary. In the CFTC Entities Rule, the Commission does not cogently explain the necessity for a fifth hedging exception. For example, the Commission spends a considerable amount of effort to differentiate the interim final rule from bona fide hedging in Regulations 1.3(z) and 151.5(a)(1). The Commission’s rationale may be distilled into one circular sentence: the Commission believes that certain bona fide hedging transactions may constitute swap dealing, due to reasons that the Commission declines to fully explain.45 Additionally, the Commission spends one paragraph attempting to differentiate between the interim final rule and the ‘‘major swap participant’’ definition (which contains a hedging or mitigating commercial risk exception). In that paragraph, the central argument appears to be that the ‘‘swap dealer’’ definition determines the parameters users—so that they could freely hedge their risks— whether financial or physical. The Dodd-Lincoln Letter begins by referencing hedging of interest rate risk. It specifically states: ‘‘Whether swaps are used by an airline hedging its fuel costs or a global manufacturing company hedging interest rate risk, derivatives are an important tool businesses use to manage costs and market volatility. This legislation will preserve that tool.’’ Moreover, the Dodd-Lincoln Letter states: ‘‘The end user exemption may also apply to our smaller financial entities—credit unions, community banks, and farm credit institutions.’’ If such institutions could be categorized as ‘‘swap dealers,’’ then they would be prohibited from relying on the end-user exception. Such institutions would likely seek to hedge financial risk. As mentioned above, the Stabenow-Lucas Letter states: ‘‘The Commission’s final rulemaking further defining ‘swap dealing’ should clearly distinguish swap activities that end-users engage in to hedge or mitigate the commercial risks associated with their businesses, including swaps entered into by endusers to hedge physical commodity price risk, from swap dealing.’’ In using the term ‘‘including,’’ the Stabenow-Lucas Letter acknowledges that end-users may use swaps to hedge or mitigate risks—such as financial risks—other than those related to physical commodities. By focusing only physical commodity risks, therefore, the interim hedging exception fails to fully satisfy Congressional intent. 43 See Regulation 1.3(z), 17 CFR 1.3(z); (ii) Regulation 151.5(a)(1) (in Position Limits in Futures and Swaps; Final Rule, 76 FR 71626, 71688 (Nov. 18, 2011) (to be codified at 17 CFR parts 1, 150, and 151)); (iii) Regulation 1.3(hhh) (as set forth in the CFTC Entities Rule); and (iv) Regulation 39.6(c) (in End-User Exception to Mandatory Clearing of Swaps; Proposed Rule, 75 FR 80747, 80757 (Dec. 23, 2010)). 44 See Exec. Order No. 13563, 76 FR 3821, Jan. 21, 2011; see also Exec. Order No. 13579, 76 FR 41587, July 14, 2011. 45 In Section II(A)(4)(e) of the CFTC Entities Rule, the Commission attempts to distinguish between ‘‘purpose’’ and ‘‘effect.’’ Market participants may find such an attempt to be less than clear. PO 00000 Frm 00168 Fmt 4701 Sfmt 4700 of the ‘‘major swap participant’’ definition— but not also vice versa.46 Preliminarily, the Commission declines to cite where exactly the Dodd-Frank Act states that the ‘‘swap dealer’’ definition is determinative. Secondarily, even assuming that the Commission is correct in characterizing the interconnection, the Commission does not clearly explain why it thinks that those transactions (i) falling outside the interim final rule but (ii) falling within hedging or mitigating commercial risk are more likely to constitute swap dealing. Finally, the Commission is silent on the manner in which the interim final rule interacts with the proposed Regulation 39.6 (detailing hedging or mitigating commercial risk for the end-user exception). If an entity is a ‘‘swap dealer,’’ then it cannot rely on the end-user exception to clearing.47 Therefore, if the Commission overreaches in defining ‘‘swap dealer,’’ it may narrow the end-user exception in a way not congruent with Congressional intent.48 Other Provisions of the Dodd-Frank Act and the CEA: Further Misconstructions As mentioned above, the Commission fails to properly construe the various clauses of CEA section 1a(49). As detailed in this section, the Commission also fails to consider other provisions of the CEA or the DoddFrank Act in determining the parameters of ‘‘swap dealer.’’ The Commission appears to assume that the ‘‘swap dealer’’ definition is determinative for all such provisions, rather than also vice versa. The Commission does not provide much (if any) rationale for this assumption. Removing this assumption, it becomes clear that other provisions of the CEA or the Dodd-Frank Act may suggest further limitations on ‘‘swap dealer.’’ 49 • End-User Exemption: Who can take advantage of it? CEA section 2(h)(7) sets forth what is commonly known as the ‘‘end-user clearing exception.’’ As mentioned above, the ‘‘swap dealer’’ definition is crucial to determining which entities could use the end-user clearing exception. That is because CEA section 2(h)(7) only applies if one counterparty to a swap is not a ‘‘financial entity.’’ 50 CEA section 2(h)(7)(C) defines 46 Section II(A)(4)(e) of the CFTC Entities Rule (stating ‘‘* * *The definition of the term ‘‘major swap participant,’’ which applies only to persons who are not swap dealers, is premised on the prior identification, by the swap dealer definition, of persons who accommodate demand for swaps, make a market in swaps, or otherwise engage in swap dealing activity. The major swap participant definition performs the subsequent function of identifying persons that are not swap dealers, but hold swap positions that create an especially high level of risk that could significantly impact the U.S. financial system.’’). 47 See CEA section 2(h)(7), 7 U.S.C. 2(h)(7). See also supra note 43. 48 See supra note 42. 49 As mentioned above, the Commission has authority to discretionarily exclude certain entities pursuant to CEA section 1a(49)(B), 7 U.S.C. 1a(49)(B). 50 CEA section 2(h)(7)(A), 7 U.S.C. 2(h)(7)(A), states: ‘‘In General.—The requirements of paragraph (1)(A) shall not apply to a swap if 1 of the E:\FR\FM\23MYR2.SGM 23MYR2 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES2 ‘‘financial entity’’ as including a ‘‘swap dealer.’’ 51 Therefore, if the Commission defines ‘‘swap dealer’’ expansively, then the Commission will limit the number and types of end-users that may use the clearing exception. Given the importance of the interconnections between the ‘‘swap dealer’’ definition and the end-user clearing exception, I would have expected the Commission to discuss such interconnections in great detail. Surprisingly, in that portion of the CFTC Entities Rule defining ‘‘swap dealer,’’ the Commission only discusses enduser clearing in a footnote.52 Footnote 213 illustrates in a particularly poignant manner the Commission’s failure to properly consider the interaction between the ‘‘swap dealer’’ definition and the end-user exception. In that footnote, the Commission attempts to dismiss the argument that the ‘‘swap dealer’’ definition should only apply to financial entities. The Commission states: Similarly, the absence of any limitation in the statutory definition of the term ‘‘swap dealer’’ to financial entities, when such limitation is included elsewhere in Title VII, indicates that no such limitation applies to the swap dealer definition. CEA section 2(h)(7), 7 U.S.C. 2(h)(7), specifically limits the application of the clearing mandate, in certain circumstances, to only ‘‘financial entities.’’ That section also provides a detailed definition of the term ‘‘financial entity.’’ See CEA section 2(h)(7)(C), 7 U.S.C. 2(h)(7)(C). That such a limitation is included in this section, but not in the swap dealer definition, does not support the view that the statutory definition of the term ‘‘swap dealer’’ should encompass only financial entities. In actuality, Footnote 213 raises more questions than it answers. In Footnote 213, the Commission presumes that the interaction between the ‘‘swap dealer’’ definition and the end-user exception only goes one way—namely, that the ‘‘swap dealer’’ definition fixes the scope of the enduser exception, but not also vice versa. The Commission provides no basis for this presumption, especially since a basic canon of statutory is that the Commission should construe a statute as a ‘‘harmonious whole.’’ From that perspective, it becomes clear that counterparties to the swap—(i) is not a financial entity; (ii) is using swaps to hedge or mitigate commercial risk; and (iii) notifies the Commission, in a manner set forth by the Commission, how it generally meets its financial obligations associated with entering into non-cleared swaps.’’ 51 Notably, CEA section 2(h)(7)(C)(i), 7 U.S.C. 2(h)(7)(C)(i), also lists commodity pools, certain private funds, certain employee benefit plans, and certain banking and financial entities separately from ‘‘swap dealer.’’ Does this separate listing imply that those entities are not ‘‘swap dealers’’? Why or why not? 52 The Commission discusses the end-user clearing exception more fully in that portion of the CFTC Entities Rule defining ‘‘major swap participant.’’ VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 Footnote 213 raises a series of fundamental questions. Why did Congress use the term ‘‘financial entity’’ in CEA section 2(h)(7)(C)? Does use of this term imply in any way that Congress presumed that the ‘‘swap dealer’’ definition would exclude commercial entities? Why or why not? Surely, Congress need not have specified financial entity in CEA section 2(h)(7)(C) if it had intended to permit the Commission to vitiate the reference to financial by simply defining ‘‘swap dealers’’ to include commercial entities. If Congress intended to so permit, then Congress could have simply used the term ‘‘entity’’ in CEA section 2(h)(7)(C). • Employee Benefit Plans: ‘‘Swap Dealers?’’ In Section II(A)(2)(f) of the CFTC Entities Rule, the Commission describes comments requesting categorical exclusions from the ‘‘swap dealer’’ definition. One such comment was from American Benefits Council (‘‘ABC’’) and the Committee on the Investment of Employee Benefit Assets (‘‘CIEBA’’).53 In their comments, ABC/CIEBA requested that the Commission exclude (or interpret CEA section 1a(49) to exclude) certain employee benefit plans from the ‘‘swap dealer’’ definition. In Section II(A)(6) of the CFTC Entities Rule, the Commission denies this request, mainly on the basis of its misguided construction of CEA section 1a(49). In so denying, the Commission fails to consider CEA section 4s(h). Specifically, CEA sections 4s(h)(2), (4), and (5) prescribe heightened business conduct standards for ‘‘swap dealers’’ interacting with ‘‘special entities.’’ In fact, the Commission recently promulgated a final rulemaking on these standards.54 CEA section 4s(h)(2)(C) defines ‘‘special entity’’ as, among other things, ‘‘any employee benefit plan, as defined in section 3 of the Employee Retirement Income Security Act of 1974 (29 U.S.C. 1002).’’ CEA section 4s(h) raises another series of fundamental questions. Did Congress presume that employee benefit plans would not constitute ‘‘swap dealers’’? 55 Why or why not? Indeed, how does the Commission reconcile its denial of the ABC/CIEBA request with its own de minimis requirement, which seems to recognize a per se difference between a ‘‘special entity’’ and a ‘‘swap dealer’’? 56 • Internal Business Conduct Standards: Indication of the Scope of ‘‘Swap Dealer?’’ In addition to failing to account for external business conduct standards, the Commission fails to account for certain 53 Comment from ABC/CIEBA, dated February 22, 2011, available at: https://comments.cftc.gov/Public Comments/ViewComment.aspx?id=27944&Search Text=American%20Benefits%20Council. 54 Business Conduct Standards for Swap Dealers and Major Swap Participants with Counterparties; Final Rule, 77 FR 9734 (Feb. 17, 2012). 55 See supra note 51. 56 See Section II(D) of the Entities Rule. PO 00000 Frm 00169 Fmt 4701 Sfmt 4700 30763 internal business conduct standards in defining ‘‘swap dealer.’’ For example, CEA section 4s(j)(5) requires ‘‘swap dealers’’ to have systems and procedures to mitigate conflicts of interest resulting from interactions between (i)(A) any person engaged in ‘‘research or analysis of the price or market for any commodity or swap’’ or (B) any person ‘‘acting in a role of providing clearing activities or making determinations as to accepting clearing customers’’ and (ii) certain persons involved in ‘‘pricing, trading, or clearing activities.’’ The Commission recently promulgated a final rulemaking on this requirement.57 CEA section 4s(j)(5) raises another fundamental question. Did Congress presume that ‘‘swap dealers’’ generally engage in either ‘‘research or analysis’’ or ‘‘providing clearing activities or making determinations’’ and ‘‘pricing, trading, or clearing activities’’? Why or why not? • Volcker: How does the CFTC Entities Rule Fit? As I have noted previously, the ‘‘Volcker Rule’’ 58 sets forth detailed metrics to differentiate between (i) market-making and (ii) proprietary trading. To say that the CFTC Entities Rule does not replicate such detail would be an understatement. Worse, the CFTC Entities Rule does not even attempt to explain why the metrics in the Volcker Rule are inapplicable to the ‘‘swap dealer’’ definition. In fact, the Commission addresses the interaction between the Volcker Rule and the CFTC Entities Rule only in one footnote. This footnote states in relevant part: The Commissions have proposed an approach to the Volcker Rule under which a person could seek to avoid the Volcker Rule in connection with swap activities by asserting the availability of that market making exception * * * Under this approach, such a person would likely also be required to register as a swap dealer (unless the person is excluded from the swap dealer definition, such as by the exclusion of certain swaps entered into in connection with the origination of a loan).59 Of course, this footnote provides no useful clarification, since the operative question is whether an entity engaging in activities that would not be ‘‘market-making’’ under the Volcker Rule could nonetheless be engaging in ‘‘market-making’’ under the CFTC Entities Rule (and, solely by virtue of such characterization, be required to register as a ‘‘swap dealer’’). 57 Swap Dealer and Major Swap Participant Recordkeeping, Reporting, and Duties Rules; Futures Commission Merchant and Introducing Broker Conflicts of Interest Rules; and Chief Compliance Officer Rules for Swap Dealers, Major Swap Participants, and Futures Commission Merchants; Final Rule, 77 FR 20128 (Apr. 3, 2012). 58 Prohibitions and Restrictions on Proprietary Trading and Certain Interests in, and Relationships With, Hedge Funds and Covered Funds; Proposed Rule, 77 FR 8332 (Feb. 14, 2012). 59 Section II(A)(4)(c) of the CFTC Entities Rule. E:\FR\FM\23MYR2.SGM 23MYR2 30764 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules and Regulations Conclusion mstockstill on DSK4VPTVN1PROD with RULES2 In the CFTC Entities Rule, the Commission has made many positive policy changes. To enable these changes, however, the Commission engages in a series of statutory contortions. Moreover, the Commission ignores a number of important questions. Witnessing these statutory gymnastics, I am reminded of the Robert Frost poem, ‘‘The Road Not Taken.’’ In its eagerness to adopt VerDate Mar<15>2010 17:58 May 22, 2012 Jkt 226001 the CFTC Entities Rule, the Commission opted for one road. Specifically, the Commission opted for providing more relief to market participants, without contradicting the fundamental premises of the Proposal. However, once market participants have examined the rulemaking, will the Commission have wished that it had properly construed CEA section 1a(49) instead? Given the Proposal and the final CFTC Entities Rule PO 00000 Frm 00170 Fmt 4701 Sfmt 9990 (and their respective differences), the Commission may well conclude that ‘‘* * * it took the one less traveled by * * * And that has made all the difference.’’ 60 [FR Doc. 2012–10562 Filed 5–22–12; 8:45 am] BILLING CODE 6351–01–P 60 Generally, because the vast body of administrative law provides guideposts to the road more traveled. E:\FR\FM\23MYR2.SGM 23MYR2

Agencies

[Federal Register Volume 77, Number 100 (Wednesday, May 23, 2012)]
[Rules and Regulations]
[Pages 30596-30764]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-10562]



[[Page 30595]]

Vol. 77

Wednesday,

No. 100

May 23, 2012

Part II





Commodity Futures Trading Commission





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17 CFR Part 1





Securities and Exchange Commission





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17 CFR Part 240





Further Definition of ``Swap Dealer,'' ``Security-Based Swap Dealer,'' 
``Major Swap Participant,'' ``Major Security-Based Swap Participant'' 
and ``Eligible Contract Participant;'' Final Rules

Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Rules 
and Regulations

[[Page 30596]]


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COMMODITY FUTURES TRADING COMMISSION

17 CFR Part 1

RIN 3038-AD06

SECURITIES AND EXCHANGE COMMISSION

17 CFR Part 240

[Release No. 34-66868; File No. S7-39-10]
RIN 3235-AK65


Further Definition of ``Swap Dealer,'' ``Security-Based Swap 
Dealer,'' ``Major Swap Participant,'' ``Major Security-Based Swap 
Participant'' and ``Eligible Contract Participant''

AGENCY: Commodity Futures Trading Commission; Securities and Exchange 
Commission.

ACTION: Joint final rule; joint interim final rule; interpretations.

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SUMMARY: In accordance with the Dodd-Frank Wall Street Reform and 
Consumer Protection Act of 2010 (``Dodd-Frank Act''), the Commodity 
Futures Trading Commission (``CFTC'') and the Securities and Exchange 
Commission (``SEC'') (collectively, the ``Commissions''), in 
consultation with the Board of Governors of the Federal Reserve System 
(``Board''), are adopting new rules and interpretive guidance under the 
Commodity Exchange Act (``CEA''), and the Securities Exchange Act of 
1934 (``Exchange Act''), to further define the terms ``swap dealer,'' 
``security-based swap dealer,'' ``major swap participant,'' ``major 
security-based swap participant,'' and ``eligible contract 
participant.''

DATES: Effective date. The effective date for this joint final rule and 
joint interim final rule: July 23, 2012, except for CFTC regulations at 
17 CFR 1.3(m)(5) and (6), which are effective December 31, 2012.
    Comment date. The comment period for the interim final rule (CFTC 
regulation at 17 CFR 1.3(ggg)(6)(iii)) will close July 23, 2012.
    Compliance date. Compliance with the element of the CFTC regulation 
at 17 CFR 1.3(m)(8)(iii) requiring that a commodity pool be formed by a 
registered CPO shall be required with respect to a commodity pool 
formed on or after December 31, 2012 for any person seeking to rely on 
such regulation; compliance with such element shall not be required 
with respect to a commodity pool formed prior to December 31, 2012.

FOR FURTHER INFORMATION CONTACT: 
    CFTC: Jeffrey P. Burns, Assistant General Counsel, at 202- 418-
5101, jburns@cftc.gov, Mark Fajfar, Assistant General Counsel, at 202-
418-6636, mfajfar@cftc.gov, Julian E. Hammar, Assistant General 
Counsel, at 202-418-5118, jhammar@cftc.gov, or David E. Aron, Counsel, 
at 202-418-6621, daron@cftc.gov, Office of General Counsel; Gary 
Barnett, Director, at 202-418-5977, gbarnett@cftc.gov, or Frank 
Fisanich, Deputy Director, at 202-418-5949, ffisanich@cftc.gov, 
Division of Swap Dealer and Intermediary Oversight,Commodity Futures 
Trading Commission, Three Lafayette Centre, 1155 21st Street NW., 
Washington, DC 20581;
    SEC: Joshua Kans, Senior Special Counsel, Richard Grant, Special 
Counsel, or Richard Gabbert, Attorney Advisor, at 202-551-5550, 
Division of Trading and Markets, Securities and Exchange Commission, 
100 F Street NE., Washington, DC 20549-7010.

SUPPLEMENTARY INFORMATION:

I. Background

    On July 21, 2010, President Obama signed the Dodd-Frank Act into 
law.\1\ Title VII of the Dodd-Frank Act established a statutory 
framework to reduce risk, increase transparency, and promote market 
integrity within the financial system by, among other things: (i) 
providing for the registration and regulation of swap dealers and major 
swap participants; (ii) imposing clearing and trade execution 
requirements on standardized derivative products; (iii) creating 
recordkeeping and real-time reporting regimes; and (iv) enhancing the 
Commissions' rulemaking and enforcement authorities with respect to all 
registered entities and intermediaries subject to the Commissions' 
oversight.
---------------------------------------------------------------------------

    \1\ See Dodd-Frank Wall Street Reform and Consumer Protection 
Act, Public Law 111-203, 124 Stat. 1376 (2010). The text of the 
Dodd-Frank Act may be accessed at https://www.cftc.gov/LawRegulation/OTCDERIVATIVES/index.htm.
---------------------------------------------------------------------------

    The Dodd-Frank Act particularly provides that the CFTC will 
regulate ``swaps,'' and that the SEC will regulate ``security-based 
swaps.'' The Dodd-Frank Act also adds definitions of the terms ``swap 
dealer,'' ``security-based swap dealer,'' ``major swap participant,'' 
``major security-based swap participant'' and ``eligible contract 
participant'' to the CEA and Exchange Act.\2\ Section 712(d)(1) of the 
Dodd-Frank Act further directs the CFTC and the SEC, in consultation 
with the Board, jointly to further define those terms, among others.\3\
---------------------------------------------------------------------------

    \2\ See Dodd-Frank Act sections 721 and 761. Sections 721(b)(2) 
and 761(b)(2) also provide that the CFTC and SEC may by rule further 
define any other term included in an amendment made by Title VII to 
the CEA or the Exchange Act, respectively.
    \3\ In addition, section 712(d)(1) directs the CFTC and SEC, in 
consultation with the Board, jointly to further define the terms 
``swap,'' ``security-based swap,'' and ``security-based swap 
agreement.'' These further definitions are the subject of a separate 
rulemaking by the Commissions. See CFTC and SEC, Notice of Proposed 
Joint Rulemaking, Further Definition of ``Swap,'' ``Security-Based 
Swap,'' and ``Security-Based Swap Agreement''; Mixed Swaps; 
Security-Based Swap Agreement Recordkeeping, 76 FR 29818 (May 23, 
2011) (``Product Definitions Proposal''). Section 712(d)(2)(A), in 
turn, provides that the Commissions shall jointly adopt such other 
rules regarding the definitions set forth in section 712(d)(1) as 
they ``determine are necessary and appropriate, in the public 
interest, and for the protection of investors.''
    In addition, section 721(c) of the Dodd-Frank Act requires the 
CFTC to adopt a rule to further define the terms ``swap dealer,'' 
``major swap participant,'' and ``eligible contract participant'' 
for the purpose of including transactions and entities that have 
been structured to evade Title VII. Also, section 761(b) of the 
Dodd-Frank Act permits the SEC to adopt a rule to further define the 
terms ``security-based swap dealer,'' ``major security-based swap 
participant,'' and ``eligible contract participant,'' with regard to 
security-based swaps, for the purpose of including transactions and 
entities that have been structured to evade Title VII.
---------------------------------------------------------------------------

    In December 2010, the Commissions proposed rules and 
interpretations to further define the meaning of the terms ``swap 
dealer,'' ``security-based swap dealer,'' ``major swap participant,'' 
``major security-based swap participant,'' and ``eligible contract 
participant.'' \4\ The Commissions received approximately 968 written 
comments in response to the Proposing Release.\5\ In addition, the 
Staffs of the Commissions participated in approximately 114 meetings 
with market participants and other members of the public about the 
Proposing Release,\6\ and the Commissions held a

[[Page 30597]]

Joint Public Roundtable on the proposed dealer and major participant 
definitions.\7\ After considering the comments received, the 
Commissions are adopting final rules and interpretations to further 
define these terms.
---------------------------------------------------------------------------

    \4\ See CFTC and SEC, Notice of Proposed Joint Rulemaking: 
Further Definition of ``Swap Dealer,'' ``Security-Based Swap 
Dealer,'' ``Major Swap Participant,'' ``Major Security-Based Swap 
Participant'' and ``Eligible Contract Participant,'' Securities 
Exchange Act Release No. 63452, 75 FR 80174 (Dec. 21, 2010) 
(``Proposing Release'').
    Prior to issuing the Proposing Release, the Commissions issued a 
joint Advance Notice of Proposed Rulemaking (``ANPRM'') requesting 
public comment regarding the definitions of the terms ``swap,'' 
``security-based swap,'' ``security-based swap agreement,'' ``swap 
dealer,'' ``security-based swap dealer,'' ``major swap 
participant,'' ``major security-based swap participant,'' and 
``eligible contract participant.'' See CFTC and SEC, Advance Notice 
of Proposed Joint Rulemaking: Definitions Contained in Title VII of 
Dodd-Frank Wall Street Reform and Consumer Protection Act, 
Securities Exchange Act Release No. 62717, 75 FR 51429 (Aug. 20, 
2010). The Proposing Release and these final rules both reflect 
comments received in response to the ANPRM.
    \5\ Comment letters received in response to the Proposing 
Release may be found on the Commissions' Web sites at https://comments.cftc.gov/PublicComments/CommentList.aspx?id=933 and at 
https://www.sec.gov/comments/s7-39-10/s73910.shtml.
    \6\ Summaries of these staff meetings may be found on the 
Commissions' Web sites at https://www.cftc.gov/LawRegulation/DoddFrankAct/Rulemakings/DF_2_Definitions/index.htm and https://www.sec.gov/comments/s7-39-10/s73910.shtml#meetings.
    \7\ A transcript of the roundtable discussion and public 
comments received with respect to the roundtable may be found on the 
CFTC's Web site at https://www.cftc.gov/PressRoom/Events/opaevent_cftcsecstaff061611.
---------------------------------------------------------------------------

II. Definitions of ``Swap Dealer'' and ``Security-Based Swap Dealer''

    The Dodd-Frank Act definitions of the terms ``swap dealer'' and 
``security-based swap dealer'' focus on whether a person engages in 
particular types of activities involving swaps or security-based 
swaps.\8\ Persons that meet either of those definitions are subject to 
statutory requirements related to, among other things, registration, 
margin, capital and business conduct.\9\
---------------------------------------------------------------------------

    \8\ See section 721 of the Dodd-Frank Act (adding Section 1a(49) 
of the CEA, 7 U.S.C. 1a(49), to define ``swap dealer'') and section 
761 of the Dodd-Frank Act (adding Section 3(a)(71) of the Exchange 
Act, 15 U.S.C. 78c(a)(71), to define ``security-based swap 
dealer'').
    \9\ The Dodd-Frank Act excludes from the Exchange Act definition 
of ``dealer'' persons who engage in security-based swaps with 
eligible contract participants. See section 3(a)(5) of the Exchange 
Act, 15 U.S.C. 78c(a)(5), as amended by section 761(a)(1) of the 
Dodd-Frank Act.
     The Dodd-Frank Act does not include comparable amendments for 
persons who act as brokers in swaps and security-based swaps. 
Because security-based swaps, as defined in section 3(a)(68) of the 
Exchange Act, are included in the Exchange Act section 3(a)(10) 
definition of ``security,'' persons who act as brokers in connection 
with security-based swaps must, absent an exception or exemption, 
register with the SEC as a broker pursuant to Exchange Act section 
15(a), and comply with the Exchange Act's requirements applicable to 
brokers.
     In mid-2011, the SEC issued temporary exemptions under the 
Exchange Act in connection with the revision of the ``security'' 
definition to encompass security-based swaps. Among other aspects, 
these temporary exemptions extended to certain broker activities 
involving security-based swaps. See ``Order Granting Temporary 
Exemptions under the Securities Exchange Act of 1934 in Connection 
with the Pending Revision of the Definition of ``Security'' to 
Encompass Security-Based Swaps, and Request for Comment,'' 
Securities Exchange Act Release No. 64795 (Jul. 1, 2011), 76 FR 
39927, 39939 (Jul. 7, 2011) (addressing availability of exemption to 
registration requirement for securities brokers).
---------------------------------------------------------------------------

    The CEA and Exchange Act definitions in general encompass persons 
that engage in any of the following types of activity:
    (i) Holding oneself out as a dealer in swaps or security-based 
swaps,
    (ii) making a market in swaps or security-based swaps,
    (iii) regularly entering into swaps or security-based swaps with 
counterparties as an ordinary course of business for one's own account, 
or
    (iv) engaging in any activity causing oneself to be commonly known 
in the trade as a dealer or market maker in swaps or security-based 
swaps.\10\

    \10\ See CEA section 1a(49)(A), 7 U.S.C. 1a(49)(A); Exchange Act 
section 3(a)(71)(A), 15 U.S.C. 78c(a)(71)(A).
---------------------------------------------------------------------------

These dealer activities are enumerated in the CEA and Exchange Act in 
the disjunctive, in that a person that engages in any one of these 
activities is a swap dealer under the CEA or security-based swap dealer 
under the Exchange Act, even if such person does not engage in one or 
more of the other identified activities.

    At the same time, the statutory dealer definitions provide 
exceptions for a person that enters into swaps or security-based swaps 
for the person's own account, either individually or in a fiduciary 
capacity, but not as a part of a ``regular business.'' \11\ The Dodd-
Frank Act also instructs the Commissions to exempt from designation as 
a dealer a person that ``engages in a de minimis quantity of [swap or 
security-based swap] dealing in connection with transactions with or on 
behalf of its customers.'' \12\ Moreover, the definition of ``swap 
dealer'' (but not the definition of ``security-based swap dealer'') 
provides that an insured depository institution is not to be considered 
a swap dealer ``to the extent it offers to enter into a swap with a 
customer in connection with originating a loan with that customer.'' 
\13\ The statutory definitions further provide that a person may be 
designated as a dealer for one or more types, classes or categories of 
swaps or security-based swaps, or activities without being designated a 
dealer for other types, classes or categories or activities.\14\
---------------------------------------------------------------------------

    \11\ See CEA section 1a(49)(C), 7 U.S.C. 1a(49)(C); Exchange Act 
section 3(a)(71)(C), 15 U.S.C. 78c(a)(71)(C).
    \12\ See CEA section 1a(49)(D), 7 U.S.C. 1a(49)(D); Exchange Act 
section 3(a)(71)(D), 15 U.S.C. 78c(a)(71)(D).
    \13\ See CEA section 1a(49)(A), 7 U.S.C. 1a(49)(A).
    \14\ See CEA section 1a(49)(B), 7 U.S.C. 1a(49)(B); Exchange Act 
section 3(a)(71)(B), 15 U.S.C. 78c(a)(71)(B).
---------------------------------------------------------------------------

    In the Proposing Release, the Commissions proposed rules to 
identify the activity that would cause a person to be a dealer,\15\ to 
implement the exception for de minimis dealing activity,\16\ to 
implement the exception from the swap dealer definition in connection 
with the origination of loans by insured depository institutions,\17\ 
and to provide for the limited purpose designation of dealers.\18\ The 
release also set forth proposed interpretive guidance related to the 
definitions.
---------------------------------------------------------------------------

    \15\ See proposed CFTC Regulation Sec.  1.3(ggg)(1); proposed 
Exchange Act rule 3a71-1(a), (b).
    \16\ See proposed CFTC Regulation Sec.  1.3(ggg)(4); proposed 
Exchange Act rule 3a71-2.
    \17\ See proposed CFTC Regulation Sec.  1.3(ggg)(5).
    \18\ See proposed CFTC Regulation Sec.  1.3(ggg)(3); proposed 
Exchange Act rule 3a71-1(c).
---------------------------------------------------------------------------

    After considering the comments received, the Commissions are 
adopting final rules and interpretations to further define the terms 
``swap dealer'' and ``security-based swap dealer.'' In this Adopting 
Release, we particularly address: (i) The general analysis for 
identifying dealing activity involving swaps and security-based swaps; 
(ii) the exclusion from the ``swap dealer'' definition in connection 
with the origination of loans by insured depository institutions; (iii) 
the application of the dealer analysis to inter-affiliate swaps and 
security-based swaps; (iv) the application of the de minimis exception 
from the dealer definitions; and (v) the limited designation of swap 
dealers and security-based swap dealers.

A. General Considerations for the Dealer Analysis

1. Proposed Approach
    The proposed rules to define the activities that would lead a 
person to be a ``swap dealer'' and ``security-based swap dealer'' were 
based closely on the corresponding language of the statutory 
definitions.\19\ The Proposing Release further noted that the Dodd-
Frank Act defined the terms ``swap dealer'' and ``security-based swap 
dealer'' in a functional manner, and stated that those statutory 
definitions should not be interpreted in a constrained, overly 
technical or rigid manner, particularly given the diversity of the swap 
and security-based swap markets. The Proposing Release also identified 
potential distinguishing characteristics of swap dealers and security-
based swap dealers based on the functional role that dealers fulfill in 
the swap and security-based swap markets, such as: dealers tend to 
accommodate demand from other parties; dealers generally are available 
to enter into swaps or security-based swaps to facilitate other 
parties' interest; dealers tend not to request that other parties 
propose the terms of swaps or security-based swaps, but instead tend to 
enter into those instruments on their own standard terms or on terms 
they arrange in response to other parties' interest; and dealers tend 
to be able to arrange customized terms for

[[Page 30598]]

swaps or security-based swaps upon request, or to create new types of 
swaps or security-based swaps at the dealer's own initiative.\20\
---------------------------------------------------------------------------

    \19\ See CFTC Regulation Sec.  1.3(ggg); Exchange Act rule 3a71-
1(a), (b).
    \20\ Proposing Release, 75 FR at 80176.
---------------------------------------------------------------------------

    The proposal recognized that the principles for identifying dealing 
activity involving swaps can differ from principles for identifying 
dealing activity involving security-based swaps, in part due to 
differences in how those instruments are used.\21\
---------------------------------------------------------------------------

    \21\ Id.
---------------------------------------------------------------------------

a. ``Swap Dealer'' Activity
    Consistent with the statutory definition, the proposed rule stated 
that the term ``swap dealer'' includes a person that ``regularly enters 
into swaps with counterparties as an ordinary course of business for 
its own account,'' but also that ``the term swap dealer does not 
include a person that enters into swaps for such person's own account, 
either individually or in a fiduciary capacity, but not as a part of a 
regular business.'' The Proposing Release stated that these two 
provisions should be read in combination with each other, and explained 
that the difference between the two provisions is whether or not the 
person enters into swaps as a part of, or as an ordinary course of, a 
``regular business.'' Thus, the Proposing Release equated the phrases 
``ordinary course of business'' and ``regular business.'' The Proposing 
Release also stated that persons who enter into swaps as a part of a 
``regular business'' are those persons whose function is to accommodate 
demand for swaps from other parties and enter into swaps in response to 
interest expressed by other parties. Such persons would be swap 
dealers.\22\ Conversely, the Proposing Release said that persons who do 
not fulfill this function in connection with swaps should not be deemed 
to enter into swaps as part of a ``regular business,'' and thus would 
not likely be swap dealers.\23\
---------------------------------------------------------------------------

    \22\ In addition, the Proposing Release explained that (in 
general, and not specifically limited to the provisions relating to 
entering into swaps as part of a ``regular business'') the proposed 
swap dealer definition does not depend on whether a person's 
activity as a swap dealer is the person's sole or predominant 
business (other than through the de minimis exception discussed 
below).
    \23\ See Proposing Release, 75 FR at 80177.
---------------------------------------------------------------------------

    In addition, the Proposing Release noted that the nature of swaps 
precludes importing concepts used to identify dealers in other areas. 
The Proposing Release explained that because swaps are typically not 
bought and sold, concepts such as whether a person buys and sells 
swaps, makes a two-sided market in swaps, or trades within a bid/offer 
spread cannot necessarily be used to determine if the person is a swap 
dealer, even if such concepts are useful in determining whether a 
person is a dealer in other financial instruments.\24\
---------------------------------------------------------------------------

    \24\ See id. at 80176-77.
---------------------------------------------------------------------------

    The Proposing Release further stated that swap dealers can be 
identified through their relationships with counterparties, explaining 
that swap dealers tend to enter into swaps with more counterparties 
than do non-dealers, and in some markets, non-dealers tend to 
constitute a large portion of swap dealers' counterparties. In 
contrast, the Proposing Release said, non-dealers tend to enter into 
swaps with swap dealers more often than with other non-dealers. The 
Proposing Release noted that it is likely that swap dealers are 
involved in most or all significant parts of the swap markets.\25\
---------------------------------------------------------------------------

    \25\ See id. at 80177.
---------------------------------------------------------------------------

    The Proposing Release concluded that this functional approach would 
identify as swap dealers those persons whose function is to serve as 
the points of connection in the swap markets. Thus, requiring 
registration and compliance with the requirements of the Dodd-Frank Act 
by such persons would thereby reduce risk and enhance operational 
standards and fair dealing in those markets.\26\
---------------------------------------------------------------------------

    \26\ See id.
---------------------------------------------------------------------------

    The Proposing Release also noted that the swap markets are diverse 
and encompass a wide variety of situations in which parties enter into 
swaps with each other, and invited comment as to what aspects of the 
parties' activities in particular situations should, or should not, be 
considered swap dealing activities. Specifically, the Proposing Release 
invited comment regarding persons who enter into swaps: (i) As 
aggregators; (ii) as part of their participation in physical markets; 
or (iii) in connection with the generation and transmission of 
electricity.\27\
---------------------------------------------------------------------------

    \27\ See id. at 80183-84.
---------------------------------------------------------------------------

    First, regarding aggregators, the Proposing Release noted that some 
persons, including certain cooperatives, enter into swaps with other 
parties in order to aggregate the swap positions of the other parties 
into a size that would be more amenable to entering into swaps in the 
larger swap market. The Proposing Release explained that, for example, 
certain cooperatives enter into swaps with smaller businesses because 
the smaller business cannot establish a commodity position large enough 
to be traded on a swap or futures market, or large enough to be of 
interest to larger financial institutions. The Proposing Release said 
that while such persons engage in activities that are similar in many 
respects to those of a swap dealer, it may be that the swap dealing 
activities of these aggregators would not exceed the de minimis 
threshold, and therefore they would not be swap dealers. The CFTC 
requested comment as to how the de minimis threshold would apply to 
such persons, and in general on the application of the swap dealer 
definition to this activity. The Proposing Release also noted that the 
CFTC was engaged in a separate rulemaking pursuant to section 
723(c)(3)(B) of the Dodd-Frank Act regarding swaps in agricultural 
commodities, and requested comment on the application of the swap 
dealer definition to dealers, including potentially agricultural 
cooperatives, that limit their dealing activity primarily to swaps in 
agricultural commodities.\28\
---------------------------------------------------------------------------

    \28\ After publication of the Proposing Release, the CFTC 
adopted a final rule on agricultural swaps under which swaps in 
agricultural commodities will be permitted to transact subject to 
the same rules as all other swaps. See Agricultural Swaps; Final 
Rule, 76 FR 49291 (Aug. 10, 2011).
---------------------------------------------------------------------------

    Second, the Proposing Release noted that the markets in physical 
commodities such as oil, natural gas, chemicals and metals have 
developed highly customized transactions, some of which would be 
encompassed by the statutory definition of the term ``swap,'' and that 
some participants in these markets engage in swap dealing activities 
that are above the proposed de minimis threshold. The CFTC invited 
comment as to any different or additional factors that should be 
considered in applying the swap dealer definition to participants in 
these markets.
    Third, the Proposing Release noted a number of complexities that 
arise when applying the swap dealer definition in connection with the 
generation and transmission of electricity. In particular, the 
Proposing Release noted that additional complexity results because 
electricity is generated, transmitted and used on a continuous, real-
time basis, and because the number and variety of participants in the 
electricity market is very large, and some electricity services are 
provided as a public good rather than for profit. The CFTC invited 
comment as to any different or additional factors that should be 
considered in applying the swap dealer definition to participants in 
the generation and transmission of electricity. Specifically, the CFTC 
invited comment on whether there are special considerations, including 
without limitation special considerations arising from section

[[Page 30599]]

201(f) of the Federal Power Act,\29\ related to not-for-profit power 
systems such as rural electric cooperatives and entities operating as 
political subdivisions of a state and on the applicability of the 
exemptive authority in section 722(f) of the Dodd-Frank Act to address 
those considerations.
---------------------------------------------------------------------------

    \29\ 16 U.S.C. 824(f).
---------------------------------------------------------------------------

b. ``Security-Based Swap Dealer'' Activity
    The Proposing Release noted the parallels between the definition of 
``security-based swap dealer'' and the definition of ``dealer'' under 
the Exchange Act,\30\ as well as the fact that security-based swaps may 
be used to hedge risks associated with owning certain types of 
securities or to gain economic exposure akin to ownership of certain 
types of securities. As a result, the Proposing Release took the view 
that the same factors that are relevant to determining whether a person 
is a ``dealer'' under the Exchange Act also are generally relevant to 
the analysis of whether a person is a security-based swap dealer. The 
Proposing Release also addressed the relevance of the ``dealer-trader'' 
distinction for identifying dealing activity involving security-based 
swaps,\31\ while recognizing that certain concepts associated with the 
dealer-trader distinction--particularly concepts involving ``turnover 
of inventory'' and ``regular place of business''--appeared potentially 
less applicable to the security-based swap dealer definition. In 
addition, the Proposing Release noted that under the dealer-trader 
distinction, we would expect that entities that use security-based 
swaps to hedge business risks, absent other activities, likely would 
not be dealers.\32\
---------------------------------------------------------------------------

    \30\ See Exchange Act sections 3(a)(5)(A), (B), 15 U.S.C. 
78c(a)(5)(A), (B), as amended by Section 761(a)(1) of the Dodd-Frank 
Act.
    \31\ The Proposing Release referred to the fact that the SEC 
previously has noted that the dealer-trader distinction: 
``recognizes that dealers normally have a regular clientele, hold 
themselves out as buying or selling securities at a regular place of 
business, have a regular turnover of inventory (or participate in 
the sale or distribution of new issues, such as by acting as an 
underwriter), and generally provide liquidity services in 
transactions with investors (or, in the case of dealers who are 
market makers, for other professionals).'' Proposing Release, 75 FR 
at 80177 (citing Securities Exchange Act Release No. 47364 (Feb. 13, 
2003) (footnotes omitted)). The Proposing Release further noted that 
other non-exclusive factors that are relevant for distinguishing 
between dealers and non-dealers can include receipt of customer 
property and the furnishing of incidental advice in connection with 
transactions. See id.
    \32\ See Proposing Release, 75 FR at 80177-78.
---------------------------------------------------------------------------

c. Additional Principles Common to Both Definitions
i. ``Hold Themselves Out'' and ``Commonly Known in the Trade'' Tests
    The Proposing Release identified the following non-exclusive list 
of factors as potentially indicating that a person meets the ``hold 
themselves out'' and ``commonly known in the trade'' tests of the 
statutory dealer definitions:
     Contacting potential counterparties to solicit interest in 
swaps or security-based swaps;
     Developing new types of swaps or security-based swaps 
(which may include financial products that contain swaps or security-
based swaps) and informing potential counterparties of the availability 
of such swaps or security-based swaps and a willingness to enter into 
such swaps or security-based swaps with the potential counterparties;
     Membership in a swap association in a category reserved 
for dealers;
     Providing marketing materials (such as a Web site) that 
describe the types of swaps or security-based swaps that one is willing 
to enter into with other parties; or
     Generally expressing a willingness to offer or provide a 
range of financial products that would include swaps or security-based 
swaps.\33\
---------------------------------------------------------------------------

    \33\ See id. at 80178.
---------------------------------------------------------------------------

    The Proposing Release further stated that the test for being 
``commonly known in the trade'' as a swap dealer or security-based swap 
dealer may appropriately reflect, among other factors, the perspective 
of persons with substantial experience with and knowledge of the swap 
and security-based swap markets (regardless of whether a particular 
entity is known as a dealer by persons without that experience or 
knowledge). The Proposing Release also stated that holding oneself out 
as a security-based swap dealer likely would encompass a person who is 
a dealer in another type of security entering into a security-based 
swap with a customer, as well as a person expressing its availability 
to enter into security-based swaps, regardless of the direction of the 
transaction or across a broad spectrum of risks.\34\
---------------------------------------------------------------------------

    \34\ See id.
---------------------------------------------------------------------------

ii. Market Making
    In addressing the statutory definitions' ``making a market'' test, 
the Proposing Release noted that while continuous two-sided quotations 
and a willingness to buy and sell a security are important indicators 
of market making in the equities market, these indicia may not be 
appropriate in the swap and security-based swap markets. The proposal 
also noted that nothing in the statutory text or legislative history 
suggested the intent to impute a ``continuous'' activity requirement to 
the dealer definitions.\35\
---------------------------------------------------------------------------

    \35\ See id.
---------------------------------------------------------------------------

iii. No Predominance Test
    The Proposing Release further addressed whether a person should be 
a dealer only if that activity is the person's sole or predominant 
business, and took the view that such an approach was not consistent 
with the statutory definition. The Proposing Release rejected this as 
an unworkable test of dealer status because many parties that commonly 
are acknowledged as dealers also engage in other businesses that 
outweigh their swap or security-based swap dealing business in terms of 
transaction volume or other measures.\36\
---------------------------------------------------------------------------

    \36\ See id. at 80178-79.
---------------------------------------------------------------------------

iv. Application to New Types of Wwaps and New Activities
    The Proposing Release noted that the Commissions intended to apply 
the dealer definitions flexibly when the development of innovative 
business models is accompanied by new types of dealer activity, 
following a facts-and-circumstances approach.\37\
---------------------------------------------------------------------------

    \37\ See id. at 80179.
---------------------------------------------------------------------------

2. Commenters' Views
    Numerous commenters addressed the proposed rules and 
interpretations in connection with the ``swap dealer'' and ``security-
based swap dealer'' definitions. Several commenters addressed 
principles that are common to the two dealer definitions, while a 
number of commenters also addressed interpretations in the Proposing 
Release that were specific to the ``swap dealer'' definition.
a. ``Hold Themselves Out'' and ``Commonly Known in the Trade'' Tests
    Some commenters expressed the view that the persons that hold 
themselves out as or are commonly known as dealers are easy to 
identify.\38\ In addressing the ``hold themselves out'' and ``commonly 
known'' criteria of the dealer definitions, commenters placed 
particular focus on whether only dealers engage in the activities cited 
by the

[[Page 30600]]

Proposing Release, or whether those activities are common both to 
dealers and to other users of swaps and security-based swaps. 
Commenters particularly stated that end users contact potential 
counterparties,\39\ develop new types of swaps or security-based 
swaps,\40\ and propose terms or language for swap or security-based 
swap agreements.\41\ One commenter further stated that identifying 
dealing activity based on whether a person develops new types of swaps 
or proposes swap terms would discourage innovation and the free 
negotiation of swaps.\42\ Some commenters stated that merely responding 
to a request for proposals or quotations should not, in itself, 
constitute dealing.\43\ Commenters also criticized the Proposing 
Release's suggestion that criteria for identifying dealing activity 
include membership in a dealer category of a trade association,\44\ as 
well as providing marketing materials and offering a range of financial 
products.\45\ Commenters also argued for more objective criteria for 
identifying persons ``commonly known'' as dealers.\46\
---------------------------------------------------------------------------

    \38\ See transcript of Joint CFTC-SEC Staff Roundtable 
Discussion on Proposed Dealer and Major Participant Definitions 
Under Dodd-Frank Act, June 16, 2011 (``Roundtable Transcript'') at 
22-23 (remarks of Ron Filler, New York Law School), 50-51 (remarks 
of Ron Oppenheimer, Working Group of Commercial Energy Firms), 215 
(remarks of Bella Sanevich, NISA Investment Advisors LLC).
    \39\ See letters from the Financial Services Roundtable 
(``FSR'') dated February 22, 2011 (``FSR I''), the International 
Swap Dealers Association (``ISDA'') dated February 22, 2011 (``ISDA 
I'') and the Midsize Bank Coalition of America (``Midsize Banks'').
    \40\ See letters from the Committee on Capital Markets 
Regulation (``CCMR'') dated February 22, 2011 (``CCMR I''), FSR I, 
ISDA I and Midsize Banks.
    \41\ See letters from the BG Americas & Global LNG (``BG LNG'') 
dated February 22, 2011 (``BG LNG I''), CCMR I, EDF Trading North 
America, LLC (``EDF Trading'') and The Gavilon Group, LLC 
(``Gavilon'') dated February 21, 2011 (``Gavilon II'').
    \42\ See letter from EDF Trading.
    \43\ See meeting with American Electric Power, Calpine 
Corporation (``Calpine''), Constellation, DC Energy LLC (``DC 
Energy''), Edison International (``Edison Int'l''), Exelon Corp., 
GenOn, Southern Company, Edison Electric Institute (``EEI'') and 
Electric Power Supply Association (``ESPA'') (collectively 
``Electric Companies'') on April 13, 2011.
    \44\ See letter from ISDA I and joint letter from National Corn 
Growers Association (``NCGA'') and Natural Gas Supply Association 
(``NGSA'') (``NCGA/NGSA'') dated February 22, 2011 (``NCGA/NGSA 
I'').
    \45\ See letter from ISDA I.
    \46\ See letters from ISDA I and Peabody Energy Corporation 
(``Peabody'').
---------------------------------------------------------------------------

    Conversely, one commenter said that three particular activities 
cited in the Proposing Release--membership in a swap association 
category reserved for dealers, providing marketing materials and 
expressing a willingness to offer a range of financial products--are 
indicative of holding oneself out as a dealer or being commonly known 
in the trade as a dealer, and should be codified in the final rule.\47\ 
Another commenter suggested other factors, such as having a derivatives 
sales team, that should be treated as indicators of dealer 
activity.\48\ Commenters also expressed the view that this aspect of 
the dealer definition should focus on whether a person solicits 
expressions of interest in swaps from a range of market 
participants,\49\ and that end users of swaps can actively seek out and 
negotiate swaps without necessarily being swap dealers.\50\
---------------------------------------------------------------------------

    \47\ See letter from FSR I.
    \48\ See meeting with Vitol, Inc. (``Vitol'') on February 16, 
2011.
    \49\ See letter from Midsize Banks.
    \50\ See letter from EDF Trading.
---------------------------------------------------------------------------

b. Market Making
    Several commenters generally requested that the Commissions provide 
more guidance as to which activities constitute making a market in 
swaps or security-based swaps.\51\ Commenters also described various 
activities as indicating, or not indicating, market making activity. 
For example, two commenters expressed the view that market making is 
characterized by entering into swaps on one side of the market and then 
establishing offsetting positions on the other side of the market.\52\ 
Other commenters equated market making to providing liquidity by 
regularly quoting bid and offer prices for swaps, and standing ready to 
enter into swaps.\53\ One commenter stated that market making activity 
is indicated by a person consistently presenting itself as willing to 
take either side of a trade.\54\ Two commenters said that market makers 
receive tangible benefits (such as reduced trading fees) in return for 
the obligation to transact when liquidity is required.\55\
---------------------------------------------------------------------------

    \51\ See joint letter from American Benefits Council and the 
Committee on Investment of Employee Benefits Assets (``ABC/CIEBA'') 
and letters from FSR I.
    \52\ See letters from DC Energy and FSR I.
    \53\ See letters from Edison Int'l, NextEra Energy Resources, 
LLC (``NextEra'') dated February 22, 2011 (``NextEra I'') and Vitol, 
and joint letter from American Electric Power, Edison Int'l, Exelon 
Corp., and Southern Company (``Utility Group'').
    \54\ See letter from ISDA I.
    \55\ See joint letter from EEI and EPSA (``EEI/EPSA'') and 
letter from Vitol.
---------------------------------------------------------------------------

    In contrast, one commenter said the proposal correctly did not 
limit market making to consistently quoting a two-sided market, because 
to do so would insert a loophole into the definition.\56\ Some 
commenters expressed the view that mere active participation in a 
market or entering into swaps on both sides of a market does not 
necessarily constitute market making.\57\ Others said that occasionally 
quoting prices on both sides of the market is not market making when 
done to obtain information about the market or to mask one's view of 
the market.\58\ One commenter stated that futures commission merchants 
(``FCMs'') and broker-dealers that facilitate customers' entering into 
swaps are not necessarily market makers.\59\ Other commenters urged the 
Commissions to reject the view that market making requires continuous 
activity.\60\
---------------------------------------------------------------------------

    \56\ See letter from Americans for Financial Reform (``AFR'').
    \57\ See letters from ABC/CIEBA, Managed Funds Association 
(``MFA'') dated February 22, 2011 (``MFA I''), and Vitol.
    \58\ See letters from NextEra Iand Vitol.
    \59\ See letter from Newedge USA LLC (``Newedge''); see also 
Roundtable Transcript at 39 (remarks of Eric Chern, Chicago Trading 
Company).
    \60\ See letters from American Federation of State, County and 
Municipal Employees (``AFSCME''), and FSR I.
---------------------------------------------------------------------------

    A number of commenters addressed the issue of how the dealer 
definitions should treat swaps or security-based swaps entered into on 
a trading platform such as a designated contract market (``DCM''), 
national securities exchange, swap execution facility (``SEF''), or 
security-based SEF (collectively referred to herein as 
``exchanges'').\61\ Several stated that entering into swaps or 
security-based swaps on exchanges should not be considered in 
determining if a person is a dealer.\62\ Some of these commenters 
emphasized the fact that parties would not know the identity of the 
counterparty to the swap executed on an exchange (i.e., such swaps are 
``anonymous''),\63\ while other commenters said that such swaps do not 
constitute ``accommodating demand'' for swaps or ``facilitating 
interest'' in swaps.\64\ Another commenter said that future means of 
executing swaps on exchanges are likely to be diverse, and it is 
premature to draw conclusions

[[Page 30601]]

about how they should be treated in the dealer definitions.\65\
---------------------------------------------------------------------------

    \61\ While some of these commenters specially addressed this 
issue in the context of whether a person is a market maker in swaps, 
others more generally addressed the issue in terms of whether a 
person is a dealer. For clarity, all of those comments are being 
addressed in the market maker context.
    \62\ See letters from EEI/EPSA, International Energy Credit 
Association (``IECA-Credit'') dated February 22, 2011 (``IECA-Credit 
I''), and NextEra I, joint letter from Shell Trading (US) Company 
and Shell Energy North America (US), L.P. (``Shell Trading'') dated 
February 22, 2011 (``Shell Trading I''), and joint letter from 
Allston Trading, LLC, Atlantic Trading USA LLC, Bluefin Trading LLC, 
Chopper Trading LLC, DRW Holdings, LLC, Eagle Seven, LLC, Endeavor 
Trading, LLC, Geneva Trading USA, LLC, GETCO, Hard Eight Futures, 
LLC, HTG Capital Partners, IMC Financial Markets, Infinium Capital 
Management LLC, Kottke Associates, LLC, Liger Investments Limited, 
Marquette Partners, LP, Nico Holdings LLC, Optiver US, Quantlab 
Financial, LLC, RGM Advisors, LLC, Tibra Trading America LLC, 
Traditum Group LLC, WH Trading and XR Trading LLC (``Traders 
Coalition'').
    \63\ See letters from Shell Trading I and Traders Coalition.
    \64\ See letters from EEI/EPSA, IECA-Credit I, and NextEra I. 
For further discussion of this issue, see parts II.A.4 and II.A.5 
below.
    \65\ See letter from Metropolitan Life Insurance Company 
(``MetLife'').
---------------------------------------------------------------------------

    Two commenters asserted that firms that provide liquidity in 
cleared and exchange-executed swaps by actively participating in the 
market provide heterogeneity among liquidity providers and thereby 
disperse risk, and further stated that to regulate such persons as swap 
dealers subject to increased capital requirements would discourage 
their participation in the market and increase risk.\66\
---------------------------------------------------------------------------

    \66\ See letters from Newedge and Traders Coalition; Roundtable 
Transcript at 39 (remarks of Eric Chern, Chicago Trading Company).
---------------------------------------------------------------------------

    One commenter expressed the view that the statutory definition uses 
dealing and market making interchangeably, and suggested that the 
analysis of whether a person acts as a dealer should be subsumed within 
the analysis of whether it acts as a market maker.\67\
---------------------------------------------------------------------------

    \67\ See letter from ISDA I.
---------------------------------------------------------------------------

c. Exception for Activities Not Part of a ``Regular Business''
    Several commenters addressed the exception from the dealer 
definitions for swap or security-based swap activities that are not 
part of a ``regular business.'' Some commenters supported the 
Commissions' proposed interpretation in the context of the ``swap 
dealer'' definition and stated that this interpretation should be 
codified in the text of the final rule.\68\
---------------------------------------------------------------------------

    \68\ See letters from FSR I, MFA I and Midsize Banks.
---------------------------------------------------------------------------

    Many commenters said that the activity of entering into swaps or 
security-based swaps should not be deemed to be a ``regular business,'' 
and thus not indicative of dealing activity, when the person's use of 
swaps or security-based swaps are ancillary to, or in connection with, 
a separate non-swap business that is the person's primary business.\69\ 
Some commenters making this point said that when the person's primary 
business relates to physical commodities, the person's use of swaps 
relating to those commodities does not constitute a ``regular 
business.'' \70\ Other commenters stated that where a person enters 
into swaps to serve its own business needs, as opposed to serving the 
business needs of the counterparty, the person's use of swaps does not 
constitute a ``regular business.'' \71\ Other commenters said that the 
use of swaps to hedge the commercial risks of a business does not 
constitute a ``regular business'' of entering into swaps.\72\ Some 
commenters also suggested that the ``regular business'' exclusion 
should be interpreted to mean ``regular swap dealing business'' or 
``regular security-based swap dealing business'' to prevent the dealer 
definitions from capturing hedgers.\73\
---------------------------------------------------------------------------

    \69\ See Roundtable Transcript at 88 (remarks of Steve Walton, 
Bank of Oklahoma).
    \70\ See letters from Atmos Energy Corporation (``Atmos 
Energy''), Dominion Resources, Inc. (``Dominion Resources''), EDF 
Trading, Edison Int'l, EEI/EPSA, Gavilon II, Hess Corporation and 
its affiliates (``Hess''), Mississippi Public Utility Staff, NextEra 
I, National Milk Producers Federation (``NMPF''), Shell Trading I, 
Utility Group and Working Group of Commercial Energy Firms 
(``WGCEF'') on the swap dealer definition dated February 22, 2011 
(``WGCEF I''), and meeting with Bunge on February 23, 2011.
    \71\ See letters from BT Pension Scheme Management Limited 
(``BTPS''), EDF Trading, EEI/EPSA and Vitol.
    \72\ See letters from American Petroleum Institute (``API'') 
dated February 22, 2011 (``API I''), Calpine, Coalition of Physical 
Energy Companies (``COPE'') dated February 22, 2011 (``COPE I''), 
Dominion Resources, EDF Trading, Edison Int'l and Peabody; see also 
Roundtable Transcript at 45 (remarks of Ed Prosser, Gavilon) and 
letter from Church Alliance. In addition, three commenters said that 
the interpretation of the provisions relating to a ``regular 
business'' in the Proposing Release is correct, because it will 
exclude from the definition of swap dealer those persons using swaps 
to hedge commercial risk. See letters from Air Transport Association 
of America, Inc. (``ATAA''), IECA-Credit I and joint letter from 
Petroleum Marketers Association of America and New England Fuel 
Institute.
    \73\ See letters from Church Alliance and Peabody.
---------------------------------------------------------------------------

    On the other hand, two commenters said that the proposed 
interpretation was correct in the view that the test of whether a 
person has a ``regular business'' of entering into swaps does not 
necessarily depend on whether a person's swap activities are a 
predominant activity, because such an approach would allow a person to 
engage in a significant level of swap dealing activity without 
registering as a swap dealer simply because the person also has 
substantial activities in a non-swap business or businesses.\74\
---------------------------------------------------------------------------

    \74\ See letters from AFR and Better Markets, Inc. (``Better 
Markets'') dated February 22, 2011 (``Better Markets I'').
---------------------------------------------------------------------------

    Other commenters suggested that the types of swap activities that a 
person engages in are relevant to determining whether the person has a 
``regular business'' of entering into swaps. One commenter stated that 
a person has a ``regular business'' of entering into swaps when the 
person has a primary business of accommodating demand or facilitating 
interest in swaps,\75\ while others similarly emphasized that a 
``regular business'' of entering into swaps is characterized by 
financial intermediation activities.\76\ One commenter took the view 
that a person that enters into swaps primarily with financial 
intermediaries does not have a ``regular business'' of entering into 
swaps.\77\
---------------------------------------------------------------------------

    \75\ See letter from IECA-Credit I.
    \76\ See letter from NextEra I and Shell Trading I. Another 
commenter disagreed with this approach, however, saying that a 
person who enters into swaps as an intermediary between smaller 
customers and larger financial institutions is not entering into 
swaps for its ``own account'' and therefore is not a swap dealer, 
but rather would be an FCM or introducing broker. See letter from 
MFX Solutions, Inc. (``MFX'') dated February 22, 2011 (``MFX I'').
    \77\ See letter from Traders Coalition.
---------------------------------------------------------------------------

    Some commenters said that the final rule should clarify the point 
at which a person's episodic or occasional swap activities become a 
``regular business'' of entering into swaps.\78\ Others stated that the 
fact that a person enters into swaps frequently or with a large number 
of counterparties does not necessarily mean that the person has a 
``regular business'' of entering into swaps.\79\
---------------------------------------------------------------------------

    \78\ See letters from BG LNG I and WGCEF I.
    \79\ See letters from NCGA/NGSA I and Vitol. One of these 
commenters asked that the final rule clarify that simply because a 
person engages in swap activity exceeding the thresholds for the de 
minimis exception from the swap dealer definition does not 
necessarily mean that the person is engaged in a ``regular 
business'' of swap dealing. See letter from Vitol.
---------------------------------------------------------------------------

    Commenters proposed specific tests for determining if a person has 
a ``regular business'' of entering into swaps. One commenter said the 
determination should look to whether a person enters into swaps to 
accommodate demand from other parties and to profit from a bid/ask 
spread on swaps (as opposed to swaps that are substitutes for physical 
transactions or positions and used by at least one party to hedge 
commercial risk), and consider specifically the volume, revenues and 
profits of such activities, the person's value at risk (VaR) and 
exposure from such activities, and its resources devoted to such 
activities.\80\ Another commenter said that the determination should be 
based on the nature of the person's business, the person's business 
purpose for using swaps, and the person's method of executing swap 
transactions (e.g., a person whose business primarily relates to 
physical commodities, who uses swaps to hedge commercial risk, and who 
executes swaps on an exchange would be less likely to have a ``regular 
business'' of entering into swaps).\81\
---------------------------------------------------------------------------

    \80\ See letter from NextEra I; see also letter from Hess 
(proposing similar criteria).
    \81\ See letter from Shell Trading I.
---------------------------------------------------------------------------

    One commenter argued that the ``regular business'' exception should 
apply to all four of the dealer tests--not only the test for persons 
that regularly enters into swaps or security-based swaps as an 
``ordinary course of business''--and further argued that the ``regular 
business'' exception should be linked to a ``two-way market'' base

[[Page 30602]]

requirement to avoid commercial hedgers being encompassed by the dealer 
definitions.\82\
---------------------------------------------------------------------------

    \82\ See letter from ISDA dated I.
---------------------------------------------------------------------------

d. Other Dealer Issues
    Commenters also addressed other issues in the Proposing Release, 
including: (i) Whether Congress intended that there be implicit 
preconditions to dealer status; (ii) whether the concepts of 
``accommodating demand'' for swaps or security-based swaps or 
``facilitating interest'' in swaps are useful in identifying dealers; 
and (iii) whether the interpretation of the dealer definitions should 
depend on pre-defined, objective criteria.
i. Preconditions
    Several commenters said that the proposal is overbroad and would 
encompass persons that Congress did not intend to regulate as 
dealers.\83\ Comments in this vein said that the statutory definition 
should be interpreted to require that persons meet certain criteria or 
engage in certain activity, not explicitly stated in the statute, to be 
covered by the swap dealer definition. For instance, some commenters 
said that a dealer is a person who enters into swaps or security-based 
swaps on either side of the market and who profits from fees for doing 
so, or from the spread between the terms of swaps on either side of the 
market.\84\ Other commenters made a similar point, saying that swap 
dealers are those persons that intermediate between swap users on 
either side of the market.\85\
---------------------------------------------------------------------------

    \83\ See, e.g., letters from BG LNG I, EDF Trading, ISDA I, 
NCGA/NGSA dated February 17, 2012 (``NCGA/NGSA II'') and WGCEF I, 
and joint letter from American Farm Bureau Federation, American 
Soybean Association, National Association of Wheat Growers, National 
Cattlemen's Beef Association, National Corn Growers Association, 
National Council of Farmer Cooperatives, National Grain and Feed 
Association, National Milk Producers Federation and National Pork 
Producers Council (``Farmers' Associations'').
    \84\ See letters from COPE I, Edison Int'l, Hess, ISDA I, Shell 
Trading I, Utility Group, Vitol and WGCEF I; see also Roundtable 
Transcript at 43-45 (remarks of Ed Prosser, Gavilon). However, other 
commenters questioned whether profiting from a bid/ask spread is a 
relevant test of dealer status, and emphasized that dealers are 
those persons who take risk by entering into swaps or security-based 
swaps on both sides of the market. See Roundtable Transcript at 21, 
56 (remarks of Richard Ostrander, Morgan Stanley) and 43 (remarks of 
Russ Wasson, National Rural Electric Cooperative Association 
(``NRECA'')). Another commenter pointed out that it could be 
difficult to determine how a person is profiting from entering into 
swaps. See Roundtable Transcript at 42 (remarks of Michael Masters, 
Better Markets).
    \85\ See letters from API I, BG LNG I and NCGA/NGSA II.
---------------------------------------------------------------------------

    The commenters were not all in agreement on this, however. Several 
commenters (including some of those that said swap dealers enter into 
swaps on both sides of the market) also stated that there are a variety 
of situations in which a person's activity of contemporaneously 
entering into swaps on both sides of the market is not indicative of 
dealing activity.\86\ One commenter said that it would not be 
appropriate to require that a person enter into swaps or security-based 
swaps on both sides of the market as a litmus test for dealer status, 
because to do so would create loopholes in the definition.\87\ Two 
commenters also supported rejection of any interpretation that would 
limit the dealer definitions to encompass only those entities that 
solely or predominately act as dealers.\88\
---------------------------------------------------------------------------

    \86\ The examples cited were: entering into swaps on either side 
of a market depending on a firm's commercial purpose for entering 
each particular swap (see letters from the Industrial Energy 
Consumers of America (``IECA-Consumers'') and WGCEF I, and letter 
from the Not-For-Profit Electric End User Coalition (``NFPEEU''), 
consisting of NRECA, American Public Power Association (``APPA'') 
and Large Public Power Council (``LPPC''); see also Roundtable 
Transcript at 44 (remarks of Ed Prosser, Gavilon)); entering into 
swaps on both sides of an illiquid market for purposes of price 
discovery or to elicit bids and offers from other market 
participants (see letters from Hess, Vitol and WGCEF I); and 
entering into swaps on both sides of the market as part of an 
investment strategy (see letter from ABC/CIEBA).
    \87\ See letter from AFR.
    \88\ See letters from AFR and Better Markets I.
---------------------------------------------------------------------------

    In addition, commenters were particularly divided as to whether 
acting as an intermediary always is indicative of swap dealing, as some 
commenters said that a person is not a swap dealer when it simply 
stands between two parties by entering into offsetting swaps with each 
party.\89\
---------------------------------------------------------------------------

    \89\ See letters from BOKF, National Association (``BOK'') dated 
January 13, 2012 (``BOK V''), MFX I, Newedge and Northland Energy 
Trading LLC (``Northland Energy''); see also Roundtable Transcript 
at 48 (remarks of John Nicholas, Newedge). One commenter queried 
whether the final rule should clarify whether a customer 
relationship between the parties to a swap is necessary in order for 
the swap to be relevant in determining whether either of the parties 
is a swap dealer. See letter from Representative Scott Desjarlais 
(``Rep. Desjarlais'').
---------------------------------------------------------------------------

ii. ``Accommodating Demand'' and ``Facilitating Interest''
    A number of commenters addressed the Proposing Release's view that 
a tendency to accommodate demand for swaps and a general availability 
to enter into swaps to facilitate other parties' interest in swaps 
(referred to here as ``accommodating demand'' and ``facilitating 
interest'') are characteristic of swap dealers. Some commenters stated 
that accommodating demand and facilitating interest would not be 
effective factors to identify swap dealers, particularly in bilateral 
negotiations where it is difficult to say which party is accommodating 
demand for swaps.\90\ Other commenters said the activities of 
accommodating demand or facilitating interest are indicative of swap 
dealing only in certain circumstances, such as when they are not 
related to a person's commodity business,\91\ or when done with the 
purpose of serving the needs of the other party to the swap.\92\ Some 
commenters argued that the statement in the Proposing Release that swap 
dealers are likely involved in most or all significant parts of the 
swap markets is incorrect in the market for energy swaps. There, the 
commenters said, persons can find counterparties for swaps without the 
intermediation of a swap dealer, and swaps entered into directly by two 
end users are more frequent.\93\
---------------------------------------------------------------------------

    \90\ See letters from NextEra I and Peabody and meeting with 
Vitol on February 15, 2011.
    \91\ See letter from Shell Trading I.
    \92\ See letters from IECA-Credit I, National Association of 
Insurance Commissioners (``NAIC''), Vitol and WGCEF I. One of these 
commenters also said that entering into a bespoke swap with a 
registered swap dealer, in which the swap dealer lays off risk, 
should not be viewed as accommodating demand or facilitating 
interest. See letter from Vitol.
    \93\ See letter from BG LNG I, NCGA/NGSA I, NFPEEU, NRG Energy, 
Inc. (``NRG Energy'') and WGCEF I and meeting with Vitol on February 
16, 2011.
---------------------------------------------------------------------------

    Other commenters, though, said that the proposal's focus on 
accommodating demand and facilitating interest strikes the right 
balance and that the proposed approach is generally correct.\94\ 
Another commenter did not object to including accommodating demand and 
facilitating risk as factors in the definition, but said that those 
factors should be applied flexibly.\95\
---------------------------------------------------------------------------

    \94\ See letters from AFR and MFX I.
    \95\ See letter from National Grain and Feed Association 
(``NGFA'') dated February 22, 2011 (``NGFA I'').
---------------------------------------------------------------------------

iii. Application of Objective Criteria, and Additional Factors
    Some commenters, specifically addressing the CFTC's proposed 
interpretive approach to the ``swap dealer'' definition, said that the 
final rule should set out objective criteria that market participants 
could use to determine whether or not they are covered by the 
definition and therefore required to register as swap dealers.\96\

[[Page 30603]]

Others focused especially on statements in the Proposing Release to the 
effect that swap dealers are those persons who ``tend to'' engage in 
certain activities, and that persons who engage in certain activities 
are ``likely'' to be swap dealers, as being overly subjective and 
difficult to interpret.\97\
---------------------------------------------------------------------------

    \96\ See letters from BG LNG I, EEI/EPSA, Peabody, Rep. 
Desjarlais and Utility Group. Some commenters said that the CFTC's 
interpretive approach to the swap dealer definition should be 
codified in the text of the final rule. See letters from Alternative 
Investment Management Association Limited (``AIMA'') dated February 
22, 2011 (``AIMA I'') and COPE I.
    \97\ See letters from BG LNG I, Chesapeake Energy Corporation 
(``Chesapeake Energy''), COPE I, ISDA I, Vitol and WGCEF I. Some 
commenters focused on particular aspects of the swap dealer 
definition as requiring further detail, such as, for example, what 
it means to be ``commonly known in the trade'' as a swap dealer (see 
letter from Peabody) and the definition of market making (see 
letters from Midsize Banks and Peabody).
---------------------------------------------------------------------------

    Certain commenters suggested specific objective criteria to use to 
identify swap dealers. One commenter said that swap dealing activity is 
characterized by more frequent use of swaps; having substantial staff 
and technological resources devoted to swaps; a larger portion of 
revenue and profit being derived from swap activity; and owning fewer 
physical assets related to the type of swaps entered into.\98\ Another 
commenter said that to identify swap dealers, the CFTC should compare a 
person's revenue or profits generated by swap activity to its overall 
revenue or profits; compare a person's total business volume to the 
volume, VaR and exposure associated with the swap activity; compare a 
person's total business resources to the resources devoted to swap 
activity; and consider ownership or control of physical assets in the 
specific market or region to which the person's swap activity is 
tied.\99\
---------------------------------------------------------------------------

    \98\ See letter from Hess.
    \99\ See letter from NextEra I.
---------------------------------------------------------------------------

    More generally, some commenters supported codification of more 
concrete tests in connection with the dealer definitions.\100\ However, 
other commenters said that the use of bright line rules to determine 
whether a person is a dealer would be inappropriate given the dynamic 
nature of the swap and security-based swap markets. These commenters 
supported a facts and circumstances approach to the dealer definition 
as a better approach.\101\ One commenter also raised issues about the 
sources of information that may be considered as part of a dealer 
determination.\102\
---------------------------------------------------------------------------

    \100\ See, e.g., letters from EEI/EPSA, FSR I, ISDA I, NextEra I 
and WGCEF I.
    \101\ See letters from Better Markets I, Chris Barnard 
(``Barnard'') and Prof. Michael Greenberger, University of Maryland 
School of Law (``Greenberger'').
    \102\ See letter from ISDA I (stating that sources of 
information considered by the Commissions in determining dealer 
status should be revealed to the entity being evaluated).
---------------------------------------------------------------------------

    e. Application of Exchange Act ``Dealer-Trader'' distinction
    i. Security-Based Swap Dealer Definition
    A number of commenters supported the proposed use of the dealer-
trader distinction under the Exchange Act to interpret the ``security-
based swap dealer'' definition.\103\ Two commenters, however, 
specifically opposed use of the distinction in the context of security-
based swaps, arguing that use of the distinction would create confusion 
or would be inconsistent with the goal of improved transparency.\104\
---------------------------------------------------------------------------

    \103\ See, e.g., letters from Coalition for Derivatives End-
Users (``CDEU''), CCMR I, ISDA I and MetLife.
    \104\ See letters from AFR and AFSCME.
---------------------------------------------------------------------------

    ii. Swap Dealer Definition
    Some commenters said that the CFTC should apply the dealer-trader 
distinction as it has been interpreted with respect to the definition 
of ``dealer'' under the Exchange Act to identify swap dealers.\105\ 
Some commenters said that the applicable interpretations under the 
Exchange Act mean that swaps a person uses for proprietary trading 
(including for speculative purposes) should not be considered in 
determining if the person is a swap dealer because dealers enter into 
transactions in order to profit from spreads or fees regardless of 
their view of the market for the underlying item, whereas traders enter 
into transactions in order to take a view on the direction of the 
market or to obtain exposure to movements in the price of the 
underlying item.\106\ Two commenters said that if the CFTC applied the 
distinction, traders should be subject to potential registration as 
major swap participants, and dealers should be subject to regulation as 
swap dealers.\107\ Commenters acknowledged differences between the 
market for swaps and the market for securities, but said that the 
Exchange Act interpretations are still relevant.\108\
---------------------------------------------------------------------------

    \105\ Some of these commenters said that, since some provisions 
in the statutory swap dealer definition are similar to the 
definition of a ``dealer'' under the Exchange Act, Congress intended 
that the two definitions would be applied in the same way. See 
letters from API I, BG LNG I, CDEU, IECA-Consumers and WGCEF I. 
Others said that the CFTC should apply these interpretations because 
they have been effectively applied for a long time in the context of 
securities. See letters from CCMR I and MFA I.
    \106\ See letters from Gavilon II, and Next Era I, and meetings 
with Electric Companies on April 13, 2011 and WGCEF on April 28, 
2011. Another commenter said the interpretations mean that dealers 
and traders can be distinguished by their activities: dealers hold 
themselves out as buying and selling on a regular basis, derive 
income from providing services in the chain of distribution, and 
profit from price spreads, while traders do not provide services or 
extend credit but, rather, profit from changes in the market value 
of underlying items. See letter from API I.
    \107\ See letters from EDF Trading and IECA-Consumers.
    \108\ See letters from API I, Gavilon I and IECA-Consumers.
---------------------------------------------------------------------------

    On the other hand, some commenters agreed with the CFTC's view not 
to apply Exchange Act interpretations to the definition of the term 
``swap dealer.'' These commenters said that it is appropriate not to 
apply the interpretations under the Exchange Act to identify persons 
that meet the swap dealer definition under the CEA.\109\
---------------------------------------------------------------------------

    \109\ See letters from AFR and AFSCME; see also joint meeting 
with AFR and Better Markets on March 17, 2011 (dealer-trader 
distinction not helpful in identifying swap dealers because the 
transparency and operational robustness of the swap market is much 
lower than in the securities market). One commenter said the 
precedents should be applied only by the SEC to identify security-
based swap dealers. See letter from NAIC.
---------------------------------------------------------------------------

e. Application to Particular Swap Markets
i. Aggregators
    Certain commenters addressed persons who enter into swaps as 
aggregators, with most of those commenters discussing agricultural 
cooperatives. Commenters said that agricultural cooperatives that hedge 
their own risks or the risks of their members regarding agricultural 
commodities should be excluded from the swap dealer definition because 
Congress did not intend to treat agricultural cooperatives as swap 
dealers and because agricultural cooperatives are in effect an 
extension of their members.\110\ Some commenters said that the 
agricultural cooperatives' use of swaps allows their members to hedge 
risks when the members' transactions are too small for (or otherwise 
not qualified for) the futures markets.\111\
---------------------------------------------------------------------------

    \110\ See letters from Dairy Farmers of America (``DFA''), 
Growmark, Land O'Lakes, Inc. (``Land O'Lakes'') dated February 22, 
2011 (``Land O'Lakes II''), National Council of Farmer Cooperatives 
(``NCFC'') dated February 22, 2011 (``NCFC I'') and NMPF. One 
commenter also said that a subsidiary of an agricultural cooperative 
that enters into swaps with its parent cooperative, and the members 
of the parent cooperative, should be excluded from the swap dealer 
definition for the same reason. See meeting with Agrivisor. Another 
commenter said that an agricultural cooperative's swaps with farmers 
and other persons for risk management should be disregarded in 
determining if the cooperative is a swap dealer so long as the swaps 
relate to the marketing function of the cooperative, even if the 
swaps are not with members of the cooperative. See letter from NMPF.
    \111\ See letters from DFA and Growmark.
---------------------------------------------------------------------------

    Some commenters said that an exclusion from the swap dealer 
definition also should be available to private companies that serve as 
aggregators for swaps in agricultural commodities or otherwise offer 
swaps

[[Page 30604]]

for agricultural risk management.\112\ These commenters said that such 
an exclusion would reduce the costs and regulatory burdens imposed on 
such companies and therefore provide a broader choice of swap providers 
to farmers and other agricultural market participants, which they said 
would reduce risks.\113\
---------------------------------------------------------------------------

    \112\ See letters from Farmers' Associations, NGFA I and NMPF.
    \113\ See id.
---------------------------------------------------------------------------

    One commenter discussed a small energy firm that aggregates demand 
for swaps from small energy retailers and consumers. This commenter 
said that such aggregators should be excluded from the swap dealer 
definition because imposing the swap dealer regulations (which would be 
promulgated with large financial firms in mind) on such firms would 
increase costs for the aggregators, discourage the aggregators' 
offering of swaps, and thereby reduce choice and efficiency in the 
market.\114\ Another commenter said that a firm that enters into swaps 
with microfinance lenders and offsetting swaps with commercial banks is 
akin to an introducing broker or FCM, and should be excluded from the 
swap dealer definition on the grounds that it does not enter into swaps 
on its own initiative, but rather to provide access to the swap markets 
to smaller counterparties.\115\
---------------------------------------------------------------------------

    \114\ See letter from Northland Energy. This commenter defined 
an ``aggregator'' as a person who: (i) Enters into swaps 
predominantly in one direction with counterparties that are using 
swaps to establish bona fide hedges; and (ii) offsets risks 
associated with such swaps using regulated futures contracts or 
cleared swaps.
    \115\ See letter from MFX dated June 3, 2011 (``MFX II''). This 
commenter said that the exclusion should be available to a person 
who operates primarily on a not-for-profit basis and limits its swap 
activities to offering swaps to persons in underserved markets and 
offsetting such swaps, and who meets other requirements to limit the 
scope of the exclusion.
---------------------------------------------------------------------------

    Another commenter said that there is no need for any special 
treatment of aggregators in the swap dealer definition. According to 
this commenter, the CFTC's guidance regarding the definition and the de 
minimis exception from the definition address the relevant issues 
properly and completely.\116\
---------------------------------------------------------------------------

    \116\ See letter from Better Markets I.
---------------------------------------------------------------------------

ii. Physical Commodity Swaps
    Commenters that discussed physical commodity swaps primarily 
focused on swaps related to energy commodities such as oil, natural gas 
and electricity. The commenters said that the market for these swaps is 
different from the market for swaps on interest rates and other 
financial commodities because, among other things, the swaps are used 
to mitigate price and delivery risks directly linked to a commercial 
enterprise; less swap activity flows through intermediaries; the 
markets for the underlying physical commodities are separately 
regulated; and the failure of a commodity market participant is not 
likely to impact financial markets as a whole.\117\ Therefore, these 
commenters believe, the application of the swap dealer definition to 
participants in these physical commodity swap markets should be 
different from the application to participants in the financial 
commodity swap markets.\118\ Some commenters said that imposing the 
costs of swap dealer regulation on participants in the markets for 
physical commodity swaps would discourage participation in the market, 
thereby reducing liquidity and increasing market concentration.\119\
---------------------------------------------------------------------------

    \117\ See letters from BG LNG I, Dominion Resources, National 
Energy Marketers Association (``NEM''), NFPEEU, Vitol and WGCEF I 
joint letter from Senator Debbie Stabenow and Representative Frank 
Lucas (many commercial end-users of swaps with inherent physical 
commodity price risk use swaps to hedge such risk and otherwise for 
their own trading objectives and not for the benefit of others) and 
meetings with Bunge on May 18, 2011 and Electric Companies on April 
13, 2011.
    \118\ See id.
    \119\ See letters from Dominion Resources, NEM and NFPEEU.
---------------------------------------------------------------------------

iii. Electricity Swaps
    Commenters on the use of swaps in connection with the generation 
and transmission of electricity addressed a variety of issues. First, 
commenters said that markets related to electricity are different from 
markets for other physical commodities in that electricity must be 
generated and transmitted at the time it is needed (it cannot be stored 
for future use); the overall demand for electricity is inelastic but 
demand at any particular time is subject to external variables, such as 
weather; the generation, transmission and use of electricity is widely 
dispersed and geographically specific; the markets are overseen by 
regulators such as state Public Utility Commissions, regional 
transmission organizations (``RTOs'') and the Federal Energy Regulatory 
Commission (``FERC''); and government mandates require continuous 
supply of electricity and treat electricity as a ``public good.'' \120\ 
Commenters said that because of these differences, the use of swaps 
related to electricity is different from the use of swaps on other 
physical commodities in that electricity swaps: Are more highly 
customized to a particular place and time; are more likely to relate to 
a short time period or be more frequently entered into; typically can 
be tied to a specific generation, transmission or use of electricity; 
are more likely to be entered into directly by end-users rather than 
through dealers; are likely to be entered into by electricity companies 
on both sides of the market; and in many cases were subject to 
regulatory oversight prior to the Dodd-Frank Act.\121\
---------------------------------------------------------------------------

    \120\ See letters from Edison Int'l, the staff of the FERC 
(``FERC Staff''), National Association of Regulatory Utility 
Commissioners (``NARUC''), NEM, NextEra I, NFPEEU and National Rural 
Utilities Cooperative Finance Corporation (``NRU CFC'') dated 
February 14, 2011 (``NRU CFC I''), joint letter from NRECA, APPA, 
LPPC, EEI and EPSA (``Electric Trade Associations'') and meetings 
with Electric Companies on April 13, 2011 and NFPEEU on January 29, 
2011.
    \121\ See letters from Edison Int'l, EEI/EPSA, Electric Trade 
Associations, FERC Staff, NextEra I and NFPEEU and meeting with 
Electric Companies on April 13, 2011.
---------------------------------------------------------------------------

    Commenters made various points regarding how swaps related to 
electricity should be treated for purposes of the swap dealer 
definition. A coalition of not-for-profit power utilities and electric 
cooperatives said that electricity cooperatives should be excluded from 
the swap dealer definition because they are non-profit entities that 
enter into swaps for the benefit of their members, they do not hold 
themselves out as swap dealers, they do not make markets, and their 
swaps are not necessarily reflective of market rates.\122\ Other 
commenters said that swaps related to transactions on tariff schedules 
approved by FERC or the Electric Reliability Council of Texas should be 
disregarded in determining if a person is a swap dealer.\123\ And, some 
commenters said that any special treatment of swaps related to 
electricity should apply not only to companies that generate, transmit 
or distribute electricity, but also to energy marketing companies that 
use swaps to benefit from price changes in the underlying energy 
commodities or to hedge related risks.\124\
---------------------------------------------------------------------------

    \122\ See letter from NFPEEU. This commenter said the exclusion 
from the swap dealer definition should extend to persons acting as 
an operating or purchasing agent for other utilities in connection 
with energy infrastructure products, or otherwise entering into 
energy commodity swaps on behalf of other end users.
    \123\ See letters from EDF Trading, FERC Staff and NARUC.
    \124\ See letters from DC Energy, EDF Trading and EEI/EPSA.
---------------------------------------------------------------------------

    On the other hand, some commenters acknowledged that a person who 
makes a market in swaps related to electricity by standing ready to 
enter into such swaps in order to profit from a bid/ask spread would be 
a swap dealer, even if the person was in the business of generating, 
transmitting or distributing

[[Page 30605]]

electricity and owned physical facilities for that purpose.\125\
---------------------------------------------------------------------------

    \125\ See letter from EEI/EPSA and meeting with Electric 
Companies on April 13, 2011.
---------------------------------------------------------------------------

f. Suggested Exlusions From the Dealer Definitions
    Several commenters took the view that the swap dealer and security-
based swap dealer definitions should categorically exclude, or should 
be interpreted in a way that would be expected to exclude, a variety of 
types of persons or transactions. Commenters particularly suggested 
that the following categories of persons should be excluded from the 
dealer definitions: Agricultural cooperatives and electric cooperatives 
(as addressed above), employee benefit plans as defined in the Employee 
Retirement Income Security Act of 1974 (``ERISA''),\126\ farm credit 
system institutions,\127\ Federal Home Loan Banks,\128\ insured 
depository institutions that limit their swap dealing activity to 
riskless principal transactions,\129\ FCMs and broker-dealers that 
limit their swap dealing activity to riskless principal 
transactions,\130\ financial guaranty insurers and their affiliates 
that do not enter into new swaps,\131\ asset managers,\132\ non-
financial companies offering swaps related to their physical commodity 
business,\133\ any person who enters into swaps or security-based swaps 
only with registered dealers and major participants,\134\ persons that 
do not pose systemic risk,\135\ hedge funds \136\ and entities that 
enter into swaps or security-based swaps solely in a fiduciary 
capacity.\137\
---------------------------------------------------------------------------

    \126\ See letter from ABC/CIEBA.
    \127\ See letter from Farm Credit Council dated February 22, 
2011 (``Farm Credit Council I'').
    \128\ See letters from Credit Union National Association 
(``CUNA'') and Federal Home Loan Banks (``FHLB'') dated February 22, 
2011 (``FHLB I'').
    \129\ See letter from BOK dated January 31, 2011 (``BOK I''); 
but see letter from Vitol at 7 (riskless principal transactions are 
a ``good model for true swap dealing activity'').
    \130\ See letter from Newedge.
    \131\ See letter from Association of Financial Guaranty Insurers 
(``AFGI'').
    \132\ See letter from BlackRock, Inc. (``BlackRock'') dated 
February 22, 2011 (``BlackRock I'').
    \133\ Commenters making this point varied in their phrasing of 
potential exclusions, and particularly suggested exclusions for: 
Agricultural firms offering swaps as risk management tools related 
to physical commodities (see letter from NGFA I); all firms, other 
than financial entities whose primary business is swap dealing (see 
letter from NEM); any person that uses swaps only to reduce price 
volatility, enters into a volume of swaps relating to any physical 
commodity that is less than the volume of its trading in that 
commodity, and is not making a market (see letter from Chesapeake 
Energy); or any person that limit its use of swaps to hedging or 
speculating (see letters from API I).
    \134\ See letter from ISDA I.
    \135\ See letters from NARUC and NCGA/NGSA I.
    \136\ See letter from MFA I.
    \137\ See letters from FSR dated February 22, 2011 and Midsize 
Banks.
---------------------------------------------------------------------------

    Commenters also suggested that the dealer definitions categorically 
exclude, or should be interpreted to exclude, the following types of 
swaps and security-based swaps: Exchange-cleared swaps and security-
based swaps,\138\ options to make or receive delivery of physical 
commodities,\139\ cash forward transactions with embedded swaps and 
book-out transactions,\140\ swaps or security-based swaps that are used 
for hedging or mitigating commercial risk,\141\ swaps entered into to 
profit from future changes in the price of the underlying 
commodity,\142\ swaps or security-based swaps entered into as a 
fiduciary or agent for another person,\143\ swaps or security-based 
swaps entered into for purposes of price discovery,\144\ and, as noted 
above, swaps related to items that are covered by a tariff approved by 
FERC or the Electric Reliability Council of Texas.\145\
---------------------------------------------------------------------------

    \138\ See letters from Commodity Markets Council (``CMC''), EEI/
EPSA, IECA-Credit I, NextEra I, Shell Trading I, Utility Group and 
Vitol.
    \139\ See letters from NextEra I and WGCEF I. The commenters 
acknowledged that such options may or may not be included in the 
definition of ``swap.''
    \140\ See letter from CMC.
    \141\ See, e.g., letters from Edison Int'l and WGCEF I and joint 
letter from Senator Stabenow and Representative Lucas (also saying 
that definition of ``hedging'' should be consistent with respect to 
the dealer and major participant definitions and the end-user 
exception from clearing).
    \142\ See letters from EEI/EPSA, NextEra I, Utility Group and 
WGCEF I.
    \143\ See letters from Midsize Banks, NFPEEU and FSR I.
    \144\ See letters from EEI/EPSA, Vitol and WGCEF I.
    \145\ See letters from EDF Trading, FERC Staff and NARUC.
---------------------------------------------------------------------------

    In contrast, some commenters opposed providing any categorical 
exclusions from the dealer definitions. One commenter stated that the 
definitions' focus on a person's activities--as opposed to whether that 
person falls within a particular category--is a better means of 
determining whether the person is a swap dealer.\146\ Another commenter 
described the requested exclusions as attempts to achieve carve-outs 
that are not provided for in the statute.\147\
---------------------------------------------------------------------------

    \146\ See letter from Better Markets I.
    \147\ See letter from AFSCME. Additional commenters emphasized 
the need for transparency about swaps and swap activities. See 
letters from Jason Cropping and BJ D'Milli.
---------------------------------------------------------------------------

    Lastly, several commenters addressed the extraterritorial 
application of the definitions of the terms ``swap dealer,'' 
``security-based swap dealer,'' ``major swap participant,'' ``major 
security-based swap participant,'' and ``eligible contract 
participant.'' In general, the commenters addressed when and how the 
definitions should be applied to persons based outside the U.S. and how 
the definitions should take account of non-U.S. requirements that may 
be applicable to such persons.\148\ The Commissions intend to 
separately address issues related to the application of these 
definitions to non-U.S. persons in the context of the application of 
Title VII to non-U.S. persons.
---------------------------------------------------------------------------

    \148\ See, e.g., letters from FSR I, Institute of International 
Bankers, ISDA I, Investment Management Association, Japan Financial 
Services Agency, Securities Industry and Financial Markets 
Association (``SIFMA'') dated February 3, 2011 (``SIFMA I''), and 
the World Bank Group, joint letter from the Autorit[eacute] de 
contr[ocirc]le prudential and the Autorit[eacute] des marches 
financiers, joint letter from Bank of America Merrill Lynch, 
Barclays Capital, BNP Paribas S.A. (``BNP Paribas''), Citi, 
Cr[eacute]dit Agricole Corporate and Investment Bank, Credit Suisse 
Securities (USA), Deutsche Bank AG (``Deutsche Bank''), HSBC, Morgan 
Stanley, Nomura Securities International, Inc. (``Nomura 
Securities''), Soci[eacute]t[eacute] G[eacute]n[eacute]rale and UBS 
Securities LLC (``Twelve Firms''), joint letter from the Bank of 
Tokyo-Mitsubishi UFJ, Ltd., Mizuho Corporate Bank, Ltd. and Sumitomo 
Mitsui Banking Corporation, and joint letter from Barclays Bank PLC, 
BNP Paribas, Credit Suisse AG, Deutsche Bank, HSBC, Nomura 
Securities, Rabobank Nederland, Royal Bank of Canada, the Royal Bank 
of Scotland Group pLc, Soci[eacute]t[eacute] G[eacute]n[eacute]rale, 
the Toronto-Dominion Bank and UBS AG.
---------------------------------------------------------------------------

g. Cost-Benefit Issues and Hedging Deterrence
    Several commenters emphasized the cost of being regulated as a 
dealer, and emphasized that an overbroad scope of the dealer 
definitions would impose significant unwarranted costs on entities 
contrary to the goals of the Dodd-Frank Act, and would deter the use of 
swaps and security-based swaps for hedging.\149\ Some commenters also 
noted that impact of the provisions of section 716 of the Dodd-Frank 
Act on entities that are deemed to be swap

[[Page 30606]]

dealers or security-based swap dealers.\150\ Also, one commenter 
suggested that using a qualitative test for the dealer definition might 
increase costs due to regulatory uncertainty.\151\
---------------------------------------------------------------------------

    \149\ See joint letter from Representatives Spencer Bachus and 
Frank Lucas at 2 (``Casting an overly-broad net in defining [dealer 
and major participant] could force some smaller participants to 
leave the marketplace as a result of increased costs, or eliminate 
certain types of contracts used for hedging. If either occurs, 
businesses will be left exposed to market volatility and the 
consequences will ultimately be felt by Americans in the form of 
increased consumer costs.'') and letters from ISDA Iat 7 (``The 
substantial additional burdens and costs of Dealer regulation must 
be reserved for those whose business it is to `make the market,' 
that is, those who consistently both buy and sell. This is in accord 
with Dodd-Frank Act's market regulatory goals, as well as the 
legislation's obvious intent to preserve healthy growth and 
innovation in the U.S. swap markets.'' (footnote omitted)), Peabody 
at 2-3 (``Legal uncertainty over the application to end users of the 
significant regulatory requirements for [swap dealers] could lead 
end users to minimize their use of swaps in order to avoid the risk 
of being deemed to be [a swap dealer].''), and Church Alliance 
(stating that the risk of incurring the costs of dealer regulation 
would harm employee benefit plans by reducing their use of swaps and 
security-based swaps for hedging and risk mitigation).
    \150\ See letters from American Bankers Association (``ABA'') 
dated November 3, 2011 (``ABA I''), BOK I, and ISDA I. Section 716 
of the Dodd-Frank Act prohibits any ``swaps entity''--a term that 
encompasses swap dealers and security-based swap dealers--from 
receiving Federal assistance with respect to any swap, security-
based swap, or other activity of the swaps entity.
    \151\ See letter from API I (stating that costs of regulatory 
uncertainty stem from the use of qualitative factors for identifying 
dealing, and from regulatory efforts to reach beyond ``true'' swap 
dealers); see also letter from Dominion Resources (the opportunity 
costs associated with regulatory uncertainty should be considered).
---------------------------------------------------------------------------

    One commenter specifically suggested that in considering the final 
rules, the Commissions should consider empirical data regarding the 
costs and benefits flowing from the rules and issue a second analysis 
of the costs and benefits of the rules for public comment,\152\ while 
other commenters said that the consideration of cost and benefits 
should include the cumulative cost of interrelated regulatory burdens 
arising from all the rules proposed under the Dodd-Frank Act.\153\ 
Other commenters said the Commissions should consider alternatives that 
would impose fewer costs.\154\
---------------------------------------------------------------------------

    \152\ See letter from WGCEF I.
    \153\ See letters from ABA I, NFPEEU and WGCEF dated December 
20, 2011, enclosing a report prepared by NERA Economic Consulting 
(``NERA'') (``WGCEF VIII''); see also letter from NERA dated March 
13, 2012.
    \154\ See letters from NextEra I (referring to alternative de 
minimis tests) and NFPEEU.
---------------------------------------------------------------------------

    Another commenter said that the cost-benefit analyses in the 
Proposing Release may have understated the benefits of the proposed 
rules, because focusing on individual aspects of all the rules proposed 
under the Dodd-Frank Act prevents consideration of the full range of 
benefits that arise from the rules as a whole, in terms of providing 
greater financial stability, reducing systemic risk and avoiding the 
expense of assistance to financial institutions in the future.\155\ 
This commenter said the consideration of benefits of the proposed rules 
should include the mitigated risk of a financial crisis.\156\
---------------------------------------------------------------------------

    \155\ See letter from Better Markets dated June 3, 2011 
(``Better Markets II'').
    \156\ Better Markets cited estimates that the worldwide cost of 
the 2008 financial crisis in terms of lost output was between $60 
trillion and $200 trillion, depending primarily on the long term 
persistence of the effects. See letter from Better Markets II.
---------------------------------------------------------------------------

3. Final Rules and Interpretation--General Principles
    Consistent with the Proposing Release, the final rules that define 
the terms ``swap dealer'' and ``security-based swap dealer'' closely 
follow the statutory definitions' four tests and exclusion for 
activities that are not part of a ``regular business.'' \157\ In 
addition, this Adopting Release sets forth interpretive guidance 
regarding various elements of the final rules.
---------------------------------------------------------------------------

    \157\ See CFTC Regulation Sec.  1.3(ggg)(1), (2); Exchange Act 
rule 3a71-1(a), (b).
---------------------------------------------------------------------------

    Because the definitions of the terms ``swap dealer'' in the CEA and 
``security-based swap dealer'' in the Exchange Act are substantially 
similar, the rules further defining those terms and the accompanying 
interpretations in this Adopting Release reflect common underlying 
principles. At the same time, the interpretations regarding the 
application of the definitions differ in certain respects given the 
differences in the uses of and markets for swaps and security-based 
swaps.\158\ For example, because security-based swaps may be used to 
hedge or gain economic exposure to underlying individual securities 
(while recognizing distinctions between security-based swaps and other 
types of securities, as discussed below), there is a basis to build 
upon the same principles that presently are used to identify dealers 
for other types of securities. These same principles, though 
instructive, may be inapplicable to swaps in certain circumstances or 
may be applied differently in the context of dealing activities 
involving commodity, interest rate, or other types of swaps.
---------------------------------------------------------------------------

    \158\ Section 712(a)(7)(A) of the Dodd-Frank Act provides that 
in adopting rules and orders implementing Title VII, the Commissions 
shall treat functionally or economically similar products or 
entities in a similar manner. Section 712(a)(7)(B), though, provides 
that the Commissions need not act in an identical manner.
---------------------------------------------------------------------------

    For these reasons, we separately are addressing the interpretation 
of the ``swap dealer'' and ``security-based swap dealer'' definitions.
    Also, as discussed below, the Commissions are directing their 
respective staffs to report separately regarding the rules being 
adopted in connection with the definition and related interpretations. 
These staff reports will help the Commissions evaluate the ``swap 
dealer'' and ``security-based swap dealer'' definitions in all 
respects, including whether new or revised tests or approaches would be 
appropriate for identifying swap dealers and security-based swap 
dealers.\159\
---------------------------------------------------------------------------

    \159\ See part V, infra.
---------------------------------------------------------------------------

4. Final Rules and Interpretation--Definition of ``Swap Dealer''
    The Dodd-Frank Act contains a comprehensive definition of the term 
``swap dealer,'' based upon types of activities. As noted above, we are 
adopting a final rule under the CEA that, like the proposed rule, 
defines the term ``swap dealer'' using terms from the four statutory 
tests and the exclusion for swap activities that are not part of ``a 
regular business.'' \160\ The final rule includes modifications from 
the proposed rule that are described below, including provisions 
stating that swaps entered into for hedging physical positions as 
defined in the rule, swaps between majority-owned affiliates, swaps 
entered into by a cooperative with its members, and certain swaps 
entered into by registered floor traders, are excluded from the swap 
dealer determination.\161\ The Commissions, in consideration of 
comments received, are also making certain modifications to the 
interpretive guidance set out in the Proposing Release with respect to 
various elements of the statutory definition of the term ``swap 
dealer,'' as described below.
---------------------------------------------------------------------------

    \160\ See CFTC Regulation Sec.  1.3(ggg)(1), (2).
    \161\ See CFTC Regulation Sec.  1.3(ggg)(6)(ii), (iii).
---------------------------------------------------------------------------

    The determination of whether a person is covered by the statutory 
definition of the term ``swap dealer'' requires application of various 
provisions of the rule further defining that term, as well as the 
interpretive guidance in this Adopting Release, depending on the 
person's particular circumstances. We intend that the determination 
with respect to a particular person would proceed as follows.
    The person would begin by applying the statutory definition, and 
the provisions of the rule which implement the four statutory tests and 
the exclusion for swap activities that are not part of ``a regular 
business,'' \162\ in order to determine if the person is engaged in 
swap dealing activity. In that analysis, the person would apply the 
interpretive guidance described in this part II.A.4, which provides for 
consideration of the relevant facts and circumstances. As part of this 
consideration, the person would apply elements of the dealer-trader 
distinction, as appropriate, including as described in part II.A.4.a, 
below.
---------------------------------------------------------------------------

    \162\ See CFTC Regulation Sec.  1.3(ggg)(1), (2).
---------------------------------------------------------------------------

    The rule provides that certain swaps are not considered in the 
determination of whether a person is a swap dealer.\163\ In particular, 
swaps entered into by an insured depository institution with a customer 
in connection with originating a loan with that customer, \164\ swaps

[[Page 30607]]

between majority-owned affiliates, \165\ swaps entered into by a 
cooperative with its members,\166\ swaps entered into for hedging 
physical positions as defined in the rule,\167\ and certain swaps 
entered into by registered floor traders \168\ are excluded from the 
swap dealer determination.
---------------------------------------------------------------------------

    \163\ See CFTC Regulation Sec.  1.3(ggg)(5), (6).
    \164\ See CFTC Regulation Sec.  1.3(ggg)(5); see also part II.B, 
infra.
    \165\ See CFTC Regulation Sec.  1.3(ggg)(6)(i); see also part 
II.C, infra.
    \166\ See CFTC Regulation Sec.  1.3(ggg)(6)(ii); see also part 
II.C, infra.
    \167\ See CFTC Regulation Sec.  1.3(ggg)(6)(iii); see also part 
II.B.4.e, infra.
    \168\ See CFTC Regulation Sec.  1.3(ggg)(6)(iv); see also part 
II.B.4.f, infra.
---------------------------------------------------------------------------

    If, after completing this review (taking into account the 
applicable interpretive guidance and excluding any swaps as noted 
above), the person determines that it is engaged in swap dealing 
activity, the next step is to determine if the person is engaged in 
more than a de minimis quantity of swap dealing.\169\ If so, the person 
is a swap dealer. When the person registers, it may apply to limit its 
designation as a swap dealer to specified categories of swaps or 
specified activities of the person in connection with swaps.\170\
---------------------------------------------------------------------------

    \169\ See CFTC Regulation Sec.  1.3(ggg)(4); see also part II.D, 
infra.
    \170\ See CFTC Regulation Sec.  1.3(ggg)(3); see also part II.E, 
infra.
---------------------------------------------------------------------------

    In this part II.A.4., we provide interpretive guidance on the 
application of the ``swap dealer'' definition, modified from the 
Proposing Release as appropriate based on comments received. This 
guidance separately addresses the following: application of the dealer-
trader framework; the ``holding out'' and ``commonly known'' criteria; 
market making; the not part of ``a regular business'' exception; the 
exclusion of swaps entered into for hedging physical positions as 
defined in the rule; and the overall interpretive approach to the 
definition.\171\
---------------------------------------------------------------------------

    \171\ The Commissions note that interpretations of the 
applicability of the dealer-trader distinction to the ``swap 
dealer'' definition under the CEA do not affect existing, or future, 
interpretations of the dealer-trader distinction under the Exchange 
Act.
---------------------------------------------------------------------------

a. Use of the Dealer-Trader Distinction
    We believe that the dealer-trader distinction \172\--which already 
forms a basis for identifying which persons fall within the 
longstanding Exchange Act definition of ``dealer''--in general provides 
an appropriate framework for interpreting the statutory definition of 
the term ``swap dealer.'' \173\ While there are differences in the 
structure of those two statutory definitions,\174\ we believe that 
their parallels--particularly their exclusions for activities that are 
``not part of a regular business''--warrant analogous interpretive 
approaches for distinguishing dealers from non-dealers.\175\ Thus, the 
dealer-trader distinction forms the basis for a framework that 
appropriately distinguishes between persons who should be regulated as 
swap dealers and those who should not. We also believe that the 
distinction affords an appropriate degree of flexibility to the 
analysis, and that it would not be appropriate to seek to codify the 
distinction in rule text.
---------------------------------------------------------------------------

    \172\ See note 31, supra. The principles embedded within the 
``dealer-trader distinction'' are also applicable to distinguishing 
dealers from non-dealers such as hedgers or investors. See note 250, 
infra.
    \173\ The Commissions note that interpretations of the 
applicability of the dealer-trader distinction to the ``swap 
dealer'' definition under the CEA do not affect existing, or future, 
interpretations of the dealer-trader distinction under the Exchange 
Act.
    \174\ For example, while the ``dealer'' definition encompasses 
certain persons in the business of ``buying and selling'' 
securities, the ``swap dealer'' definition does not address either 
``buying'' or ``selling.'' We also note that the ``dealer'' 
definition requires the conjunctive ``buying and selling''--which 
connotes a degree of offsetting two-sided activity. In contrast, the 
swap dealer definition (particularly the ``regularly enters into'' 
swaps language of the definition's third prong) lacks that 
conjunctive terminology.
    \175\ In the Proposing Release, the CFTC did not propose to use 
principles from the dealer-trader distinction to interpret the 
definition of the term ``swap dealer,'' instead proposing an 
interpretive approach that focused on, among other things, a 
person's functional role in the swap markets and its relationships 
with swap counterparties. See Proposing Release, 75 FR at 80177. 
There was, however, some overlap in practice between the factors 
identified in the Proposing Release relating to a swap dealer's 
functional role and relationships and the principles of the dealer-
trader distinction that were proposed to be applied to identify 
security-based swap dealers. Moreover, the changes to the 
interpretive approach to the swap dealer definition that we are 
adopting here and discussed in this part II.A.4 are in many respects 
similar to the principles of the dealer-trader distinction. We also 
acknowledge the commenters who asked for additional guidance 
regarding the application of the definitions. See, e.g., letters 
from Gavilon II, Peabody and the Utility Group, and meeting with 
CDEU on April 7, 2011.
    Thus, while the incorporation of the dealer-trader distinction 
in the interpretation of the term ``swap dealer'' constitutes a 
change from the Proposing Release, this is simply reflective of the 
other changes to the CFTC's interpretive approach that we are 
adopting for the final rule and the overlap between the factors 
relating to a swap dealer's functional role and counterparty 
relationships and the principles of the dealer-trader distinction.
---------------------------------------------------------------------------

    The Commissions recognize that the dealer-trader distinction needs 
to be adapted to apply to swap activities in light of the special 
characteristics of swaps and the differences between the ``dealer'' 
definition, on the one hand, and the ``swap dealer'' definition, on the 
other. Relevant differences between the swap market and the markets for 
securities (other than security-based swaps) include:
     Level of activity--Swap markets are marked by less 
activity than markets involving certain types of securities (while 
recognizing that some debt and equity securities are not actively 
traded). This suggests that in the swap context, concepts of 
``regularity'' should account for a participant's level of activity in 
the market relative to the total size of the market.
     No separate issuer--Each counterparty to a swap in essence 
is the ``issuer'' of that instrument; in contrast, dealers in cash 
market securities generally transact in securities issued by another 
party. This distinction suggests that the concept of maintaining an 
``inventory'' of securities is inapposite in the context of swaps. 
Moreover, this distinction--along with the fact that the ``swap 
dealer'' definition lacks the conjunctive ``buying and selling'' 
language of the ``dealer'' definition--suggests that concepts of two-
sided markets at times would be less relevant for identifying swap 
dealers than they would be for identifying dealers.\176\
---------------------------------------------------------------------------

    \176\ The analysis also should account for the fact that a party 
to a swap can use other derivatives or cash market instruments to 
hedge the risks associated with the swap position, meaning that two-
way trading is not necessary to maintain a flat risk book.
---------------------------------------------------------------------------

     Predominance of over-the-counter and non-standardized 
instruments--Swaps an thus far are not significantly traded on 
exchanges or other trading systems, in contrast to some cash market 
securities (while recognizing that many cash market securities also are 
not significantly traded on those systems).\177\ These attributes--
along with the lack of ``buying and selling'' language in the swap 
dealer definition, as noted above--suggest that concepts of what it 
means to make a market need to be construed flexibly in the contexts of 
the swap markets.
---------------------------------------------------------------------------

    \177\ Even though we expect trading of swaps on exchanges 
following the implementation of Title VII, we expect there to remain 
a significant amount of over-the-counter activity involving swaps.
---------------------------------------------------------------------------

     Mutuality of obligations and significance to ``customer'' 
relationship--In contrast to a secondary market transaction involving 
equity or debt securities, in which the completion of a purchase or 
sale transaction can be expected to terminate the mutual obligations of 
the parties to the transaction, the parties to a swap often will have 
an ongoing obligation to exchange cash flows over the life of the 
agreement. In light of this attribute, some market participants have 
expressed the view that they have ``counterparties'' rather than 
``customers'' in the context of their swap activities.
    In applying the dealer-trader distinction, it also is necessary to 
apply

[[Page 30608]]

the statutory provisions that will govern swap dealers in an effective 
and logical way. Those statutory provisions added by the Dodd-Frank Act 
advance financial responsibility (e.g., the ability to satisfy 
obligations, and the maintenance of counterparties' funds and assets) 
associated with swap dealers' activities,\178\ other counterparty 
protections,\179\ and the promotion of market efficiency and 
transparency.\180\ As a whole, the relevant statutory provisions 
suggest that we should interpret the ``swap dealer'' definition to 
identify those persons for which regulation is warranted either: (i) 
Due to the nature of their interactions with counterparties; or (ii) to 
promote market stability and transparency, in light of the role those 
persons occupy within the swap and security-based swap markets.
---------------------------------------------------------------------------

    \178\ E.g., capital and margin requirements (CEA section 4s(e)), 
and requirements for segregation of collateral (CEA sections 4d(f), 
4s(l)).
    \179\ E.g., requirements with respect to business conduct when 
transacting with special entities (CEA sections 4s(h)(2), 4s(h)(4), 
4s(h)(5)); disclosure requirements (CEA section 4s(h)(3)(B)); 
requirements for fair and balanced communications (CEA section 
4s(h)(3)(D)); other requirements related to the public interest and 
investor protection (CEA section 4s(h)(3)(D)); and conflict of 
interest provisions (CEA section 4s(j)(5)).
    \180\ E.g., reporting and recordkeeping requirements (CEA 
section 4s(f)); daily trading records requirements (CEA section 
4s(g)); regulatory standards related to the confirmation, 
processing, netting, documentation and valuation of security-based 
swaps (CEA section 4s(i)); position limit monitoring requirements 
(CEA section 4s(j)(1)); risk management procedure requirements (CEA 
section 4s(j)(2)); and requirements related to the disclosure of 
information to regulators (CEA section 4s(j)(3)).
---------------------------------------------------------------------------

    There are several aspects of our interpretive approach to the swap 
dealer definition that are particularly similar to the dealer-trader 
distinction as it will be applied to determine if a person is a 
security-based swap dealer. In particular, the following activities, 
which are indicative of dealing activity in the application of the 
dealer-trader distinction,\181\ similarly are indicative that a person 
is acting as a swap dealer: \182\ (i) Providing liquidity by 
accommodating demand for or facilitating interest in the instrument 
(swaps, in this case), holding oneself out as willing to enter into 
swaps (independent of whether another party has already expressed 
interest), or being known in the industry as being available to 
accommodate demand for swaps; (ii) advising a counterparty as to how to 
use swaps to meet the counterparty's hedging goals, or structuring 
swaps on behalf of a counterparty; (iii) having a regular clientele and 
actively advertising or soliciting clients in connection with swaps; 
\183\ (iv) acting in a market maker capacity on an organized exchange 
or trading system for swaps; \184\ and (v) helping to set the prices 
offered in the market (such as by acting as a market maker) rather than 
taking those prices, although the fact that a person regularly takes 
the market price for its swaps does not foreclose the possibility that 
the person may be a swap dealer.
---------------------------------------------------------------------------

    \181\ See generally part II.A.5, infra.
    \182\ To clarify, the activities listed in the text are 
indicative of acting as a swap dealer. Engaging in one or more of 
these activities is not a prerequisite to a person being covered by 
the swap dealer definition.
    \183\ As with the interpretation of the dealer-trader 
distinction with respect to securities, a nomenclature distinction 
between ``counterparties'' and ``customers'' is not significant for 
purposes of applying the dealer-trader distinction to swap 
activities. Contractual provisions related to nomenclature, such as 
a provision stating that no ``customer'' relationship is present, 
would not be significant if the reality of the situation is 
different. See note 271, infra, and accompanying text.
    \184\ As with the dealer-trader distinction as it has been 
interpreted under the Exchange Act with respect to securities (and 
as noted below in the discussion of the ``makes a market in swaps'' 
prong of the swap dealer definition), the presence of an organized 
exchange or trading system is not a prerequisite to being a market 
maker for purposes of the swap dealer definition, nor is acting as a 
market maker a prerequisite to being a swap dealer.
---------------------------------------------------------------------------

    The Commissions further note that the following elements of the 
interpretive approach to the swap dealer definition are also generally 
consistent with the dealer-trader distinction as it will be applied to 
determine if a person is a security-based swap dealer: (i) A 
willingness to enter into swaps on either side of the market is not a 
prerequisite to swap dealer status; (ii) the swap dealer analysis does 
not turn on whether a person's swap dealing activity constitutes that 
person's sole or predominant business; (iii) a customer relationship is 
not a prerequisite to swap dealer status; and (iv) in general, entering 
into a swap for the purpose of hedging, absent other activity, is 
unlikely to be indicative of dealing. Last, under the interpretive 
approach to the definition of both the terms ``swap dealer'' and 
``security-based swap dealer,'' whether a person is acting as a dealer 
will turn upon the relevant facts and circumstances, as informed by the 
interpretive guidance set forth in this Adopting Release.
    At the same time, the Commissions recognize that the dealer-trader 
distinction is not static, but rather has evolved over time through 
interpretive materials. The Commissions expect the dealer-trader 
distinction to evolve over time with respect to swaps independently of 
its evolution over time with respect to securities or security-based 
swaps. Prior interpretations and future developments in the law 
regarding securities or security-based swaps may inform the 
interpretation of the swap dealer definition, but will not be 
dispositive in identifying dealers in the swap markets.\185\
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    \185\ In interpreting the term ``swap dealer,'' we intend to 
consider, but do not formally adopt, the body of court decisions, 
SEC releases, and SEC staff no-action letters that have interpreted 
the dealer-trader distinction.
---------------------------------------------------------------------------

b. Indicia of Holding Oneself Out as a Dealer in Swaps or Being 
Commonly Known in the Trade as a Dealer in Swaps
    The final rule further defining the term ``swap dealer'' includes 
the provisions in the proposed rule which incorporate the statutory 
requirements that the term includes a person that is holding itself out 
as a dealer in swaps or is engaging in any activity causing it to be 
commonly known in the trade as a dealer or market maker in swaps.\186\
---------------------------------------------------------------------------

    \186\ See CFTC Regulation Sec.  1.3(ggg)(1)(i) and (iv).
---------------------------------------------------------------------------

    We continue to believe that the Proposing Release appropriately 
identifies a number of factors as indicia of ``hold[ing] itself out as 
a dealer in swaps'' and ``engag[ing] in any activity causing [itself] 
to be commonly known in the trade as a dealer or market maker in 
swaps.'' \187\ In our view, those factors thus are relevant to 
determining if a person is a swap dealer. For example, regarding the 
proposed factor of ``membership in a swap association in a category 
reserved for dealers,'' we note that the bylaws of the International 
Swaps and Derivatives Association (``ISDA'') provide that any business 
organization that:

    \187\ These factors are as follows: Contacting potential 
counterparties to solicit interest; developing new types of swaps or 
security-based swaps and informing potential counterparties of their 
availability and of the person's willingness to enter into the swap 
or security-based swap; membership in a swap association in a 
category reserved for dealers; providing marketing materials 
describing the type of swaps or security-based swaps the party is 
willing to enter into; and generally expressing a willingness to 
offer or provide a range of products or services that include swaps 
or security-based swaps. See Proposing Release, 75 FR at 80178.

    Directly or through an affiliate, as part of its business 
(whether for its own account or as agent), deals in derivatives 
shall be eligible for election to membership in the Association as a 
Primary Member, provided that no person or entity shall be eligible 
for membership as a Primary Member if such person or entity 
participates in derivatives transactions solely for the purpose of 
risk hedging or asset or liability management.\188\
---------------------------------------------------------------------------

    \188\ See By-laws of ISDA at 3, available at: https://www.isdadocs.org/membership. The Commissions note that the Primary 
Members of ISDA are not limited to only financial firms.

    We believe that in circumstances such as this, where a category of 
association

[[Page 30609]]

membership requires that a person deal in derivatives and not limit its 
participation in derivative transactions to solely risk hedging, 
membership in the category is an indicator of swap dealer status.\189\
---------------------------------------------------------------------------

    \189\ However, while such membership is an indicator of swap 
dealer status, a person holding such membership could nonetheless be 
excluded by other provisions of the definition of the term ``swap 
dealer.'' For example, an insured depository institution that limits 
its activity to offering swaps in connection with the origination of 
loans, as discussed below in part II.B, would not be covered by the 
definition simply because it holds such membership.
---------------------------------------------------------------------------

    We take note, however, of the comments that these activities may be 
insufficient to establish that a person is a swap dealer. In 
particular, we generally agree with commenters that many commercial end 
users of swaps do, from time to time, actively seek out and negotiate 
swaps. Yet, based on the applicable facts and circumstances, these end 
users do not necessarily fall within the definition of a swap dealer 
solely because they actively seek out and negotiate swaps from time to 
time.
    The activities described in the Proposing Release as indicia of 
holding oneself out as a swap dealer or engaging in any activity 
causing oneself to be commonly known as a swap dealer should not be 
considered in a vacuum, but should instead be considered in the context 
of all the activities of the swap participant. While the activities 
listed in the Proposing Release are indicators that a person is holding 
itself out or is commonly known as a swap dealer, these are factors to 
be considered in the analysis. They are not per se conclusive, and 
could be countered by other factors indicating that the person is not a 
swap dealer.\190\ Because of the flexibility--including the 
consideration of applicable facts and circumstances--needed for such an 
analysis, we do not believe that it is appropriate to codify this 
guidance in rule text, as suggested by some commenters.
---------------------------------------------------------------------------

    \190\ The statutory definition of the term ``swap dealer'' 
contains four separate clauses, or ``prongs,'' joined by the 
disjunctive ``or,'' the ordinary meaning of which is that the prongs 
are stated as alternative types of swap dealer. Accordingly, where 
an assessment of all the activities of a swap participant 
demonstrates that the person is not holding itself out as a swap 
dealer or engaging in any activity that causes it to be commonly 
known as a swap dealer, that person may, nonetheless, be a swap 
dealer based on the market making or regular business prongs of the 
swap dealer definition, discussed below. The Commissions note, 
however, that as discussed below in part II.A.4.g, the CFTC's 
overall interpretive guidance, including guidance regarding the 
dealer-trader framework, applies to identify swap dealers under all 
four prongs of the statutory ``swap dealer'' definition.
---------------------------------------------------------------------------

c. Market Making
    The final rule defining ``swap dealer'' includes the provision from 
the proposed rule which incorporates the statutory requirement that 
this term include a person that ``makes a market in swaps.'' \191\
---------------------------------------------------------------------------

    \191\ See CFTC Regulation Sec.  1.3(ggg)(1)(ii). Because the 
statutory swap dealer definition contains four disjunctive prongs, 
the CFTC does not agree with a commenter (see letter from ISDA I) 
who asserted that status as a market maker in swaps is a 
prerequisite to a person being a swap dealer.
---------------------------------------------------------------------------

    We have considered the comments suggesting various descriptions of 
activities that should and should not be deemed to be market making in 
swaps for purposes of this rule. In consideration of these comments, we 
clarify that making a market in swaps is appropriately described as 
routinely standing ready to enter into swaps at the request or demand 
of a counterparty. In this regard, ``routinely'' means that the person 
must do so more frequently than occasionally, but there is no 
requirement that the person do so continuously.\192\
---------------------------------------------------------------------------

    \192\ A person that occasionally, or less than routinely, enters 
into a swap at the request of a counterparty is not a maker of a 
market in swaps, and therefore is not a swap dealer on that basis. 
However, we reiterate, as stated in the Proposing Release, that 
since many types of swaps are not entered into on a continuous 
basis, it is not necessary that a person enter into swaps at the 
request or demand of counterparties on a continuous basis in order 
for the person to be a market maker in swaps and, therefore, a swap 
dealer.
---------------------------------------------------------------------------

    It is appropriate, in response to comments asking for further 
guidance regarding what activities constitute making a market in swaps, 
to describe some of the activities indicative of whether a person is 
routinely standing ready to enter into swaps at the request or demand 
of a counterparty. Such activities include routinely: (i) Quoting bid 
or offer prices, rates or other financial terms for swaps on an 
exchange; (ii) responding to requests made directly, or indirectly 
through an interdealer broker, by potential counterparties for bid or 
offer prices, rates or other similar terms for bilaterally negotiated 
swaps; (iii) placing limit orders for swaps; or (iv) receiving 
compensation for acting in a market maker capacity on an organized 
exchange or trading system for swaps.\193\ These examples are not 
exhaustive, and other activities also may be indicative of making a 
market in swaps if the person engaging in them routinely stands ready 
to enter into swaps as principal at the request or demand of a 
counterparty.
---------------------------------------------------------------------------

    \193\ In addition, section 619 of the Dodd-Frank Act (the 
``Volcker Rule'') generally prohibits banking entities from engaging 
in proprietary trading, but contains an exception for certain market 
making-related activities. The Commissions have proposed an approach 
to the Volcker Rule under which a person could seek to avoid the 
Volcker Rule in connection with swap activities by asserting the 
availability of that market making exception. See SEC, Board, Office 
of the Comptroller of the Currency (``OCC''), and Federal Deposit 
Insurance Corporation (``FDIC''), Prohibitions and Restrictions on 
Proprietary Trading and Certain Interests in, and Relationships 
With, Hedge Funds and Private Equity Funds; Proposed Rule, 76 FR 
68846 (Nov. 7, 2011); CFTC, Prohibitions and Restrictions on 
Proprietary Trading and Certain Interests in, and Relationships 
With, Hedge Funds and Private Equity Funds; Proposed Rule, 77 FR 
8332 (Feb. 14, 2012). Under this approach, such a person would 
likely also be required to register as a swap dealer (unless the 
person is excluded from the swap dealer definition, such as by the 
exclusion of certain swaps entered into in connection with the 
origination of a loan). The SEC has proposed to adopt the same 
approach with respect to the interplay of the Volcker Rule and the 
definition of the term ``security-based swap dealer.'' See note 272, 
infra.
---------------------------------------------------------------------------

    In determining whether a person's routine presence in the market 
constitutes market making under these four factors, the dealer-trader 
interpretative framework may be usefully applied.\194\ Under the 
dealer-trader distinction, seeking to profit by providing liquidity to 
the market is an indication of dealer activity.\195\ Thus, in applying 
these four factors, it is useful to consider whether the person is 
seeking, through presence in the market, compensation for providing 
liquidity, compensation through spreads or fees, or other compensation 
not attributable to changes in the value of the swaps it enters 
into.\196\ If not, such activity would not be indicative of market 
making.
---------------------------------------------------------------------------

    \194\ We recognize that routine presence in the swap market is 
not necessarily indicative of making a market in swaps. For example, 
persons may be routinely present in the market in order to engage in 
swaps for purposes of hedging, to advance their investment 
objectives, or to engage in proprietary trading.
    \195\ See note 265, infra, and accompanying text.
    \196\ In this case, the spread from which a person profits may 
be between two or more swaps, or it may be between a swap and 
another position or financial instrument. In contrast, entering into 
swaps in order to obtain compensation attributable to changes in the 
value of the swaps is indicative of using swaps for a hedging, 
investment or trading purpose.
---------------------------------------------------------------------------

    Some commenters suggested that, in order to be a market maker in 
swaps, a person must make a two-way market in swaps.\197\ Nonetheless, 
it is possible for a person making a one-way market in swaps to be a 
maker of a market in swaps and, therefore, within the swap dealer 
definition. This may be true, for example, where a person routinely

[[Page 30610]]

stands ready to enter into swaps on a particular side of the market--
say, routinely bidding for floating exposures on a swap trading 
platform--while entering into transactions on the other side of the 
market in other instruments (such as futures contracts). The relevant 
indicator of market maker status is the willingness of the person to 
routinely stand ready to enter into swaps at the request or demand of a 
counterparty (as opposed to entering into swaps to accommodate one's 
own demand or desire to participate in a particular market), be it on 
one or both sides of the market, and then to enter into offsetting 
positions, either in the swap market or in other markets.
---------------------------------------------------------------------------

    \197\ See letters cited in notes 52 to 58, supra. Although swaps 
are notional contracts requiring the performance of agreed upon 
terms by each party, it is possible to describe swap users in 
practical terms as being on either ``side'' of a market. For 
example, for many swaps the party paying a fixed amount is on one 
``side'' of the market and the party paying a floating amount is on 
the other ``side.''
---------------------------------------------------------------------------

    The Commissions disagree with the commenters who said that swaps 
executed on an exchange should not be considered in determining if a 
person is a market maker in swaps and thus a swap dealer.\198\ First, 
the statutory definition of the term ``swap dealer'' makes no 
distinction between swaps executed on an exchange and swaps that are 
not, suggesting that the same protections should apply regardless of 
the method of executing the swap. Second, from the perspective of an 
end user seeking to execute a swap on an exchange, the important 
consideration under our analysis is whether a market maker is ready to 
enter into swaps, not whether the market maker is aware of the 
counterparty's identity. A market maker in swaps routinely stands ready 
to enter into swaps at the request or demand of a counterparty, 
regardless of whether the counterparty and the market maker meet on a 
disclosed basis through bilateral negotiations or anonymously through 
an exchange.\199\ Similarly, the issue of whether a person is a 
registered FCM or broker-dealer is not necessarily relevant to whether 
the person is a maker of a market in swaps, if the person is routinely 
standing ready to enter into swaps at the request or demand of a 
counterparty. Third, we believe it would be inappropriate to disregard 
swaps executed on exchanges in order, as some commenters 
suggested,\200\ to encourage market participants to use, or to provide 
liquidity to, exchanges. Finally, variety of exchanges, markets, and 
other facilities for the execution of swaps are likely to evolve in 
response to the requirements of the Dodd-Frank Act, and there is no 
basis for any bright-line rule excluding swaps executed on an exchange, 
given the impossibility of obtaining information about how market 
participants will interact and execute swaps in the future, after the 
requirements under the Dodd-Frank Act are fully in effect. For all 
these reasons, we have determined that it is inappropriate to restrict 
the ``making a market in swaps'' prong of the swap dealer definition 
(i.e., routinely standing ready to enter into swaps at the request or 
demand of a counterparty) to swaps that are not executed on an 
exchange.\201\
---------------------------------------------------------------------------

    \198\ See, e.g., letters cited in note 62, supra.
    \199\ As discussed above, in many cases routine presence in the 
swap market, without more, would not constitute market making 
activity. Nevertheless, the CFTC will, in connection with 
promulgation of final rules relating to capital requirements for 
swap dealers and major swap participants, consider institution of 
reduced capital requirements for entities or individuals that fall 
within the swap dealer definition and that execute swaps only on 
exchanges, using only proprietary funds. Similarly, the CFTC also 
will consider the applicability to such entities or individuals of 
the other requirements imposed on swap dealers (e.g., internal 
business conduct standards, external business conduct standards with 
counterparties), and may adjust those swap dealer requirements as 
appropriate.
    \200\ See, e.g., letters cited in note 66, supra. Since the 
structures of the markets on which swaps will be executed are still 
in development, and market obligations have not been established, 
there is little support for comments asserting that market makers 
should be defined as only those persons who receive benefits from 
the market (such as reduced trading fees) in return for the 
obligation to transact when the market requires liquidity.
    \201\ By contrast, it may be appropriate, over time, to tailor 
the specific requirements imposed on swap dealers depending on the 
facility on which the swap dealer executes swaps. For example, the 
application of certain business conduct requirements may vary 
depending on how the swap is executed, and it may be appropriate, as 
the swap markets evolve, to consider adjusting certain of those 
requirements for swaps that are executed on an exchange or through 
particular modes of execution.
---------------------------------------------------------------------------

d. Exception for Activities Not Part of ``a Regular Business''
    The final rule includes the provisions in the proposed rule that 
incorporate the provisions of the statutory definition regarding 
activities that are not part of ``a regular business'' of entering into 
swaps. One provision states that the term ``swap dealer'' includes a 
person that ``regularly enters into swaps with counterparties as an 
ordinary course of business for its own account''; the other provision 
states that the term ``swap dealer'' does not include a person that 
``enters into swaps for such person's own account, either individually 
or in a fiduciary capacity, but not as a part of a regular business.'' 
\202\
---------------------------------------------------------------------------

    \202\ Final CFTC Regulation Sec.  1.3(ggg)(2) is modified from 
the proposal to include the word ``a'' before the words ``regular 
business,'' to conform the text of the rule to the text of the 
statute. See CEA section 1a(49)(C), 7 U.S.C. 1a(49)(C).
    As stated in the Proposing Release, we interpret the reference 
in the definition of the term ``swap dealer'' to a person entering 
into swaps ``with counterparties * * * for its own account'' to 
refer to a person who enters into a swap as a principal, and not as 
an agent. A person who enters into swaps as an agent for customers 
(i.e., for the customers' accounts) would be required to register as 
either an FCM, introducing broker, commodity pool operator or 
commodity trading advisor, depending on the nature of the person's 
activity.
---------------------------------------------------------------------------

    The Commissions continue to believe, as stated in the Proposing 
Release, that the phrases ``ordinary course of business'' and ``a 
regular business'' are, for purposes of the definition of ``swap 
dealer'' essentially synonymous. In this context, we interpret these 
phrases to focus on activities of a person that are usual and normal in 
the person's course of business and identifiable as a swap dealing 
business. It is not necessarily relevant whether the person conducts 
its swap-related activities in a dedicated subsidiary, division, 
department or trading desk, or whether such activities are a person's 
``primary'' business or an ``ancillary'' business, so long as the 
person's swap dealing business is identifiable.\203\
---------------------------------------------------------------------------

    \203\ We recognize, as noted by one commenter (see letter from 
ISDA I), that the ``regular business'' exclusion is not limited 
solely to the ``ordinary course of business'' test of the swap 
dealer definition. Our interpretations of the other three tests are, 
and should be read to be, consistent with the exclusion of 
activities that are not part of a regular business.
---------------------------------------------------------------------------

    We have taken into consideration comments seeking additional 
guidance regarding the types and levels of activities that constitute 
having ``a regular business'' of entering into swaps.\204\ In this 
regard, any one of the following activities would generally constitute 
both entering into swaps ``as an ordinary course of business'' and ``as 
a part of a regular business'': \205\ (i) Entering into swaps with the 
purpose of satisfying the business or risk management needs of the 
counterparty (as opposed to entering into swaps to accommodate one's 
own demand or desire to participate in a particular market); (ii) 
maintaining a separate profit and loss statement reflecting the results 
of swap activity or treating swap activity as a separate profit center; 
or (iii) having staff and resources allocated to dealer-type activities 
with counterparties, including activities relating to credit analysis, 
customer onboarding, document negotiation, confirmation generation, 
requests for novations and amendments, exposure monitoring and 
collateral calls, covenant monitoring, and reconciliation.\206\
---------------------------------------------------------------------------

    \204\ See, e.g., letters from BG LNG I, COPE I, IECA-Credit I, 
Shell Trading I, WGCEF I and Vitol (stating that the proposed 
approach was overly subjective and requesting guidance as to the 
specific activities that are covered by the statutory definition).
    \205\ These activities are inconsistent with entering into a 
swap to hedge a physical position as defined in Sec.  
1.3(ggg)(6)(iii). As discussed below, such hedging is not dealing 
activity.
    \206\ The three indicators of being engaged in ``a regular 
business'' of entering into swaps described here are set forth in 
the alternative. Any one of these indicators may be sufficient, 
based on a facts and circumstances analysis, to reach a conclusion 
that an entity is engaged in ``a regular business'' of entering into 
swaps.

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[[Page 30611]]

    The Commissions see merit in the comments saying that ``a regular 
business'' of entering into swaps can be characterized by entering into 
swaps to satisfy the business or risk management needs of the other 
party to the swap, and so incorporate this element into our 
interpretation of the rule.\207\ Also, an objective indicator of a 
person being engaged in ``a regular business'' of entering into swaps 
is when the person accounts for the results of its swap activities 
separately, by maintaining a separate profit and loss statement for 
those activities or treating them as a separate profit center. Our 
interpretation incorporates this indicator of activity that is ``a 
regular business'' of entering into swaps.
---------------------------------------------------------------------------

    \207\ This element of the interpretation reflects our agreement 
with those commenters who said that ``a regular business'' of 
entering into swaps is characterized by having a business of 
accommodating demand or facilitating interest in swaps (see letter 
from IECA-Credit I), and those commenters who said that ``a regular 
business'' does not encompass the use of swaps to serve a person's 
own business needs, as opposed to serving the business needs of the 
counterparty (see letters cited in note 71, supra).
---------------------------------------------------------------------------

    Other comments suggesting specific criteria to identify ``a regular 
business'' also were helpful. We agree with commenters \208\ that ``a 
regular business'' of entering into swaps can be characterized by 
having staff and resources allocated to the types of activities in 
which swap dealers must engage with their counterparties, such as those 
noted above (e.g., credit analysis, confirmation generation, collateral 
calls, and covenant monitoring). However, we understand that some end 
users of swaps engage in some of these activities and, in certain 
circumstances, may have staff and resources available for these 
activities. Therefore, this element of the definition should be applied 
in a reasonable manner, taking all appropriate circumstances into 
account. This element does not depend on whether a specific amount or 
percentage of expenses or employee time are related to these swap 
activities. Instead, it is appropriate to objectively examine a 
person's use of staff and resources related to swap activities. Using 
staff and resources to a significant extent in conducting credit 
analysis, opening and monitoring accounts and the other activities 
noted above, is an indication that the person is engaged in ``a regular 
business'' of entering into swaps.
---------------------------------------------------------------------------

    \208\ See letters cited in note 80, supra.
---------------------------------------------------------------------------

    Regarding the commenters' assertion that the activity of entering 
into swaps in connection with a person's physical commodity business 
cannot constitute ``a regular business'' of the person, we believe that 
while in most cases this is not dealing activity,\209\ a per se 
exclusion of this type is not appropriate because it is possible that 
in some circumstances a person might enter into swaps that are 
connected to a physical commodity business but also serve market 
functions characteristic of the functions served by swap dealers. Also, 
again, the statutory definition does not contain any such exclusion, 
but rather includes any person who ``regularly enters into swaps with 
counterparties as an ordinary course of business for its own account,'' 
without regard to the person's particular type of business.
---------------------------------------------------------------------------

    \209\ See CFTC Regulation Sec.  1.3(ggg)(6)(iii) (swaps entered 
into for hedging physical positions as defined in the rule are not 
considered in the determination of whether a person is a swap 
dealer).
---------------------------------------------------------------------------

    Consistent with the statutory definition, we interpret ``a regular 
business'' of entering into swaps in a manner that applies equally to 
all market participants that engage in the activities set forth in the 
statutory definition. This will ensure that all participants in the 
swap markets are regulated in a fair and consistent manner, regardless 
of whether their underlying business is primarily physical or financial 
in nature.\210\
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    \210\ Regulation of firms engaged in an underlying physical 
business is also consistent with regulatory practices outside the 
U.S. For example, non-financial entities register with the Financial 
Services Authority in the U.K. as ``Oil Market Participants'' and 
``Energy Market Participants.'' See Financial Services Authority 
Handbook EMPS and OMPS, available at https://fsahandbook.info/FSA/html/handbook.
---------------------------------------------------------------------------

    Finally, as noted above, the manner in which persons negotiate, 
execute and use swaps is likely to evolve in response to the 
requirements of the Dodd-Frank Act and the other forces that will shape 
the swap markets going forward. For this reason, it would be 
inappropriate to craft per se exclusions from the swap dealer 
definition at a time when the only available information about the use 
of swaps relates to the period prior to implementation of the Dodd-
Frank Act.\211\
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    \211\ For the same reasons, we do not believe it would be 
appropriate, in determining whether a person has a ``regular 
business'' of entering into swaps, to consider whether a person 
engages in activities normally associated with financial 
institutions, as some commenters suggested. See letters cited in 
note 76, supra.
---------------------------------------------------------------------------

e. Interim Final Rule Excluding Swaps Entered Into for Hedging Physical 
Positions
    We note that some commenters said that swaps used to hedge or 
mitigate commercial risks should not be considered in determining 
whether a person is a swap dealer.\212\ We understand that swaps are 
used to hedge risks in numerous and varied ways, and we expect that the 
number of persons covered by the definition will be very small in 
comparison to the thousands of persons that use swaps for hedging.
---------------------------------------------------------------------------

    \212\ See, e.g., letters cited in note 72, supra.
---------------------------------------------------------------------------

    In terms of the statutory definition of the term ``swap dealer,'' 
the CFTC notes as an initial matter that there is no specific provision 
addressing hedging activity. Thus, the statutory definition leaves the 
treatment of hedging swaps to the CFTC's discretion; it neither 
precludes consideration of a swap's hedging purpose, nor does it 
require an absolute exclusion of all swaps used for hedging.\213\
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    \213\ In this regard, the statutory definition of the term 
``swap dealer'' stands in contrast to the statutory definition of 
the term ``major swap participant'' which, as discussed further 
below, explicitly provides that positions in swaps held for hedging 
or mitigating commercial risk are to be excluded in certain parts of 
that definition. See CEA section 1a(33)(A)(i)(1), 7 U.S.C. 
1a(33)(A)(i)(1). The absence of any explicit requirement in the 
``swap dealer'' definition to exclude swaps held for hedging or 
mitigating commercial risk does not support the view that Congress 
intended to categorically exclude all swaps that may serve as hedges 
in determining whether a person is covered by the definition.
    Similarly, the absence of any limitation in the statutory 
definition of the term ``swap dealer'' to financial entities, when 
such limitation is included elsewhere in Title VII, indicates that 
no such limitation applies to the swap dealer definition. CEA 
section 2(h)(7), 7 U.S.C. 2(h)(7), specifically limits the 
application of the clearing mandate, in certain circumstances, to 
only ``financial entities.'' That section also provides a detailed 
definition of the term ``financial entity.'' See CEA section 
2(h)(7)(C), 7 U.S.C. 2(h)(7)(C). That such a limitation is included 
in this section, but not in the swap dealer definition, does not 
support the view that the statutory definition of the term ``swap 
dealer'' should encompass only financial entities.
---------------------------------------------------------------------------

    In general, entering into a swap for the purpose of hedging is 
inconsistent with swap dealing.\214\ The practical

[[Page 30612]]

difficulty lies in determining when a person has entered into a swap 
for the purpose of hedging, as opposed to other purposes for entering 
into swaps, such as accommodating demand for swaps or as part of making 
a market in swaps, and in distinguishing a swap with a hedging purpose 
from a swap with a hedging consequence. In view of these uncertainties, 
the CFTC believes it is appropriate to adopt an interim final rule that 
draws upon the principles of bona fide hedging that the CFTC has long 
applied to identify when a financial instrument is used for hedging 
purposes, and excludes from the swap dealer analysis swaps entered into 
for the purpose of hedging physical positions that meet the 
requirements of the rule.
---------------------------------------------------------------------------

    \214\ For example, under the dealer-trader distinction, the 
Commissions would expect persons that use security-based swaps to 
hedge their business risks, absent other activity, likely would not 
be dealers. See part II.A.5.b, infra. Under the CFTC's interpretive 
guidance, making a market in swaps is appropriately described as 
routinely standing ready to enter into swaps at the request or 
demand of a counterparty, and the indicia of swap dealing as a 
``regular business'' include entering into swaps to satisfy the 
business or risk management needs of the counterparty. Entering into 
swaps for the purpose of hedging one's own risks generally would not 
be indicative of this form of swap activity. See also, e.g., joint 
letter from Senator Stabenow and Representative Lucas (the final 
rule should distinguish using swaps for hedging from swap dealing).
---------------------------------------------------------------------------

    Specifically, the CFTC is adopting as an interim final rule CFTC 
Regulation Sec.  1.3(ggg)(6)(iii), which provides that the 
determination of whether a person is a swap dealer will not consider a 
swap that the person enters into, if:
    (i) The person enters into the swap for the purpose of offsetting 
or mitigating the person's price risks that arise from the potential 
change in the value of one or several (a) assets that the person owns, 
produces, manufactures, processes, or merchandises or anticipates 
owning, producing, manufacturing, processing, or merchandising; (b) 
liabilities that the person owns or anticipates incurring; or (c) 
services that the person provides, purchases, or anticipates providing 
or purchasing;
    (ii) the swap represents a substitute for transactions made or to 
be made or positions taken or to be taken by the person at a later time 
in a physical marketing channel;
    (iii) the swap is economically appropriate to the reduction of the 
person's risks in the conduct and management of a commercial 
enterprise;
    (iv) the swap is entered into in accordance with sound commercial 
practices; and
    (v) the person does not enter into the swap in connection with 
activity structured to evade designation as a swap dealer.\215\
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    \215\ See CFTC Regulation Sec.  1.3(ggg)(6)(iii). All five 
requirements set forth in the regulation must be met with respect to 
the swap, in order for the swap to be excluded from the swap dealer 
determination by the regulation.
---------------------------------------------------------------------------

    Thus, although the CFTC is not incorporating the bona fide hedging 
provisions of the CFTC's position limits rule here, the exclusion from 
the swap dealer analysis draws upon language in the CFTC's definition 
of bona fide hedging.\216\ For example, the exclusion expressly 
includes swaps hedging price risks arising from the potential change in 
value of existing or anticipated assets, liabilities, or services, if 
the hedger has an exposure to physical price risk. And, as in the bona 
fide hedging rule, the exclusion utilizes the word ``several'' to 
reflect that there is no requirement that swaps hedge risk on a one-to-
one transactional basis in order to be excluded, but rather they may 
hedge on a portfolio basis.\217\ For these reasons, swaps that qualify 
as enumerated hedging transactions and positions are examples of the 
types of physical commodity swaps that are excluded from the swap 
dealer analysis if the rule's requirements are met.\218\
---------------------------------------------------------------------------

    \216\ See CFTC Regulation Sec.  151.5(a)(1). The definition of 
bona fide hedging in CFTC Regulation Sec.  1.3(z), which applies for 
excluded commodities, is not relevant here, because it does not 
contain the requirement that the swap represents a substitute for a 
transaction made or to be made or a position taken or to be taken in 
a physical marketing channel, as required by CFTC Regulation Sec.  
1.3(ggg)(6)(iii)(B). We believe that this requirement is an 
important aspect of how principles from the bona fide hedging 
definition are useful in identifying swaps that are entered into for 
the purpose of hedging as opposed to other purposes.
    \217\ See CFTC, Position Limits for Futures and Swaps; Final 
Rule, 76 FR 71626, 71649 (Nov. 18, 2011).
    \218\ The swaps that qualify as enumerated hedging transactions 
and positions are those listed in CFTC Regulation Sec.  151.5(a)(2) 
and appendix B to part 151. These examples are illustrative of the 
types of ``assets,'' ``liabilities,'' and ``services'' contemplated 
in CFTC Regulation Sec.  1.3(ggg)(6)(iii), because the price risk 
arising from changes in their value could be offset or mitigated 
with a swap that represents a substitute for transactions made or to 
be made or positions taken or to be taken by the person at a later 
time in a physical marketing channel. To be clear, notwithstanding 
that a swap does not fit precisely within such examples, it may 
still satisfy CFTC Regulation Sec.  1.3(ggg)(6)(iii).
     Regarding commenters' queries about dynamic hedging, which one 
commenter described as the ability to modify the hedging structure 
related to physical assets or positions when relevant pricing 
relationships applicable to that asset change (see joint letter from 
WGCEF and CMC), we note that qualification as bona fide hedging has 
never been understood to require that hedges, once entered into, 
must remain static. We expect that entites would move to update 
their hedges periodically when pricing relationships or other market 
factors applicable to the hedge change.
---------------------------------------------------------------------------

    This provision in the final rule is consistent with our overall 
interpretive approach to the definition of the term ``swap dealer.'' 
The interpretations of the statutory dealer definitions by both 
Commissions focus on a person's activities in relation to its 
counterparties and other market participants.\219\ As noted above, for 
example, one indicator that a person enters into swaps as part of ``a 
regular business'' is that the person does so to satisfy the business 
or risk management needs of the counterparty. This aspect of the swap 
dealer analysis turns on the accommodation of a counterparty's needs or 
demands. If a person enters into swaps for the purpose of hedging a 
physical position as defined in CFTC Regulation Sec.  1.3(ggg)(6)(iii), 
by contrast, then the swap can be identified as not having been entered 
into for the purpose of accommodating the counterparty's needs or 
demands.\220\ Also, a person's activity of seeking out swap 
counterparties in order to hedge a physical position as defined in the 
rule generally would not warrant regulations to promote market 
stability and transparency or to serve the other purposes of dealer 
regulation.\221\
---------------------------------------------------------------------------

    \219\ See parts II.A.4.e and II.A.5.a, infra. For example, the 
conclusion that a person's relationship with its counterparties can 
lead to associated obligations is consistent with the ``shingle 
theory,'' which implies a duty of fair dealing when a person hangs 
out its shingle to do business. See note 260, infra.
    \220\ In this way, the exclusion from the swap dealer analysis 
of swaps hedging physical positions as defined in CFTC Regulation 
Sec.  1.3(ggg)(6)(iii) is similar to the exclusions, discussed 
below, of swaps between affiliates and swaps between a cooperative 
and its members. See CFTC Regulation Sec.  1.3(ggg)(6)(i)(ii); see 
also part II.C, infra. However, to the extent a person engages in 
dealing activities involving swaps, the presence of offsetting 
positions that hedge those dealing activities would not excuse the 
requirement that the person register as a swap dealer.
    \221\ Thus, the CFTC's interpretation of the swap dealer 
definition in this regard draws upon principles in the dealer-trader 
distinction. See part II.A.4.a. Additional authority for CFTC 
Regulation Sec.  1.3(ggg)(6)(iii) is provided by subparagraph (B) of 
the swap dealer definition. This subparagraph provides that a person 
``may be designated as a swap dealer for a single type or single 
class or category of swap or activities and considered not to be a 
swap dealer for other types, classes, or categories of swaps or 
activities.'' CEA Section 1a(49)(B), 7 U.S.C. 1a(49)(B). It thereby 
authorizes a review of a person's various activities with respect to 
swaps, and a determination that some of the person's activities are 
covered by a designation as a swap dealer, while other of the 
person's activities are not. Thus, a person who enters into some 
swaps for hedging physical positions as defined in CFTC Regulation 
Sec.  1.3(ggg)(6)(iii), and also enters into other swaps in 
connection with activities covered by the swap dealer definition, 
could be designated as a swap dealer only for the latter activities.
---------------------------------------------------------------------------

    At the same time, however, there may be circumstances where a 
person's activity of entering into swaps is encompassed by the 
statutory definition of the term ``swap dealer,'' notwithstanding that 
the swaps have the effect of hedging or mitigating the person's 
commercial risk.\222\ Although these swaps could, in theory, be 
excluded from the swap dealer analysis, we believe that a broader, per 
se exclusion for all swaps that hedge or mitigate commercial risk is

[[Page 30613]]

inappropriate for the swap dealer definition.
---------------------------------------------------------------------------

    \222\ For example, ``pay floating/receive fixed'' swaps entered 
into by a swap dealer with long exposure to the floating side of a 
market would have the effect of hedging the dealer's exposure.
---------------------------------------------------------------------------

    First, the hedging exclusion that we are adopting is in the nature 
of a safe harbor; i.e., it describes activity that will not be 
considered swap dealing activity. As such, the CFTC believes that it is 
appropriate that the interim final rule not be cast broadly.\223\ This 
does not mean that other types of hedging activity that do not meet the 
requirements of the interim final rule are necessarily swap dealing 
activity. Rather, such hedging activity is to be considered in light of 
all other relevant facts and circumstances to determine whether the 
person is engaging in activity (e.g., accommodating demand for swaps, 
making a market for swaps, etc.) that makes the person a swap dealer.
---------------------------------------------------------------------------

    \223\ While we recognize that a rule delineating the swap 
activities that do not constitute swap dealing would simplify and 
make more certain, at least in some contexts, the application of the 
swap dealer definition, there are also reasons for caution in 
incorporating a categorical exclusion for hedging.
---------------------------------------------------------------------------

    Second, the usefulness of an exclusion of all swaps that hedge or 
mitigate commercial risk for certain aspects of the major swap 
participant definition \224\ is not a reason to use the same exclusion 
in the swap dealer definition, since the swap dealer definition serves 
a different function. The definition of the term ``major swap 
participant,'' which applies only to persons who are not swap 
dealers,\225\ is premised on the prior identification, by the swap 
dealer definition, of persons who accommodate demand for swaps, make a 
market in swaps, or otherwise engage in swap dealing activity. The 
major swap participant definition performs the subsequent function of 
identifying persons that are not swap dealers, but hold swap positions 
that create an especially high level of risk that could significantly 
impact the U.S. financial system.\226\ Only for this subsequent 
function is it appropriate to apply the broader exclusion of swaps held 
for the purpose of hedging or mitigating commercial risk.\227\
---------------------------------------------------------------------------

    \224\ See part IV.C, infra.
    \225\ See CEA Sec.  1a(33)(A)(i), 7 U.S.C. 1a(33)(A)(i).
    \226\ See CEA Sec.  1a(33)(B), 7 U.S.C. 1a(33)(B).
    \227\ We do not believe that the differences between the 
exclusion in the major participant definitions for swaps held for 
the purpose of hedging or mitigating commercial risk and the 
exclusion in the swap dealer definition for certain swaps entered 
into for the purpose of hedging risks related to physical positions 
mean that the Commissions, or the CFTC in particular, have 
implemented two different definitions of hedging. In fact, neither 
of these exclusions define the term ``hedging.'' Rather, the 
differences between the two exclusions reflect differences in the 
parameters that must be satisfied in order to ensure that hedging 
swaps are appropriately excluded from the two different definitions.
---------------------------------------------------------------------------

    The CFTC believes that since the over-the-counter swap markets have 
operated largely without regulatory oversight and encompass swaps used 
for a wide variety of commercial purposes, no method has yet been 
developed to reliably distinguish, through a per se rule, between: (i) 
Swaps that are entered into for the purpose of hedging or mitigating 
commercial risk; and (ii) swaps that are entered into for the purpose 
of accommodating the counterparty's needs or demands or otherwise 
constitute swap dealing activity, but which also have a hedging 
consequence.\228\ In contrast, the CFTC notes that it has set forth and 
modified standards for bona fide hedging transactions and granted 
exemptions in compliance with such standards for decades.\229\ These 
historically-developed standards form the basis of the interim final 
rule excluding from the swap dealer analysis certain swaps that hedge 
the risks associated with a physical position.
---------------------------------------------------------------------------

    \228\ As noted in the preceding paragraph, it is not necessary 
to make this distinction for purposes of the major swap participant 
definition.
    \229\ See, e.g., 42 FR 42751 (Aug. 8, 1977). Although the latest 
formulation of the definition of bona fide hedging--CFTC Regulation 
Sec.  151.5(a)--was recently adopted, see CFTC, Position Limits for 
Futures and Swaps; Final Rule and Interim Final Rule, 76 FR 71626 
(Nov. 18, 2011), the bona fide hedging test has been in use for 
decades.
---------------------------------------------------------------------------

    The exclusion in CFTC Regulation Sec.  1.3(ggg)(6)(iii) depends not 
on the effect or consequences of the swap, but on whether the purpose 
for which a person enters into a swap is to hedge a physical position 
as defined in the rule. If so, then the swap is excluded from the 
dealer analysis because using swaps for that purpose is inconsistent 
with, and is not, dealing activity.\230\ On the other hand, if, at the 
time the swap is entered into, the person's purpose for entering into 
the swap is not as defined in CFTC regulation Sec.  1.3(ggg)(6)(iii), 
or if it is unclear whether the swap is for such purpose, then the fact 
that the swap hedges the person's exposure in some regard does not 
preclude consideration of that swap in the dealer analysis.\231\ In 
this latter case, all relevant facts and circumstances regarding the 
swap and the person's activity with respect to the swap would be 
relevant in the determination of whether the person is a swap 
dealer.\232\
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    \230\ To be clear, the swaps a person enters into for hedging 
physical positions as defined in CFTC Regulation Sec.  
1.3(ggg)(6)(iii) are not indicative of dealing activity under any of 
the prongs of the swap dealer definition.
    \231\ In this regard, CFTC Regulation Sec.  1.3(ggg)(6)(iii) is 
different from certain of the CFTC's rules regarding bona fide 
hedging, where a person's purpose in entering into a swap may not be 
relevant.
    \232\ We believe that, in practice, the difficulty of 
distinguishing, in applying the swap dealer definition, swaps 
entered into for the purpose of hedging from other types of swaps 
will be resolvable when the facts and circumstances of a person's 
swap activities are taken into consideration in light of our 
interpretive guidance.
---------------------------------------------------------------------------

    We believe that, based on the CFTC's experience in applying bona 
fide hedging principles with respect to swaps hedging risks related to 
physical positions, the exclusion in CFTC Regulation Sec.  
1.3(ggg)(6)(iii) at this time is the best means of providing certainty 
to market participants regarding which swaps may be disregarded in the 
dealer analysis. However, commenters presented a range of views as to 
the exclusions from the dealer analysis that may be appropriate in this 
regard.\233\ Accordingly, the CFTC is implementing this exclusion on an 
interim rule basis and is seeking comments on all aspects of the 
interim rule, including any adjustments that may be appropriate in the 
rule or accompanying interpretive guidance.
---------------------------------------------------------------------------

    \233\ See, e.g., letters cited in note 141, supra.
---------------------------------------------------------------------------

    The CFTC also seeks comments on whether a different approach to 
swaps entered into for the purpose of hedging risk is appropriate to 
implement the statutory definition of the term ``swap dealer.''
    For example, the CFTC invites commenters to address whether any 
exclusion of hedging swaps from the swap dealer analysis is 
appropriate, and if so, how swaps that are entered into for purposes of 
hedging may be identified and distinguished from other swaps. 
Commenters are encouraged to address whether it is relevant to 
distinguish swaps entered into for purposes of hedging from swaps that 
have a consequential result of hedging, and if so, how such swaps may 
be distinguished. Also, commenters may address whether the exclusion 
should be limited to swaps hedging risks related to physical positions 
or extended to encompass swaps hedging financial risks or other types 
of risks.
    Commenters should address whether the exclusion in CFTC Regulation 
Sec.  1.3(ggg)(6)(iii) should be consistent with the exclusion in CFTC 
Regulation Sec.  1.3(kkk). If so, why, and if not, why not? If the two 
exclusions should be consistent, does consistency require that that 
exclusions be identical, or would there be variations in application of 
the two exclusions? Are there market participants whose swap positions 
would be classified as held for the purpose of hedging or mitigating 
commercial risk under CFTC Regulation

[[Page 30614]]

Sec.  1.3(kkk) but would not qualify for the exclusion under CFTC 
Regulation Sec.  1.3(ggg)(6)(iii)? If so, specifically identify the 
types of market participants and swaps. If the CFTC were to apply in 
the swap dealer definition the exclusion in CFTC Regulation Sec.  
1.3(kkk) in lieu of the exclusion in CFTC Regulation Sec.  
1.3(ggg)(6)(iii), would there be negative market impacts? If so, what 
are they? Would there be positive market impacts? If so, what are they? 
In particular, what type(s) of swaps that ``hedge or mitigate 
commercial risk,'' but that are not excluded under the interim rule, 
may constitute dealing activity in light of the rules and interpretive 
guidance regarding the swap dealer definition set forth in this 
Adopting Release?
    Comments regarding the costs and benefits related to the interim 
final rule and any alternative approaches, including in particular the 
quantification of such costs and benefits, are also invited.
    Commenters are encouraged, to the extent feasible, to be 
comprehensive and detailed in providing their approach and rationale. 
The comment period for the interim final rule will close July 23, 2012.
f. Swaps Entered Into by Persons Registered as Floor Traders
    Commenters discussed whether the swap dealer definition encompasses 
the activity of entering into swaps on or subject to the rules of a DCM 
or SEF, and submitted for clearing to a derivatives clearing 
organization (``DCO''), particularly when firms engage in that activity 
using only proprietary funds.\234\ Because Title VII of the Dodd-Frank 
Act amended the definition of floor trader specifically to encompass 
activities involving swaps,\235\ the CFTC believes that it would lead 
to potentially duplicative regulation if floor traders engaging in 
swaps in their capacity as floor traders were also required to register 
as swap dealers. Accordingly, the CFTC believes that it is appropriate 
not to consider such swaps when determining whether a person acting as 
a floor trader, as defined under CEA section 1a(23),\236\ and 
registered with the CFTC under CFTC Regulation Sec.  3.11, is a swap 
dealer if the floor trader meets certain conditions. Specifically, the 
final rule provides that, in determining whether a person is a swap 
dealer, each swap that the person enters into in its capacity as a 
floor trader as defined by CEA section 1a(23) or on a SEF shall not be 
considered for the purpose of determining whether the person is a swap 
dealer, provided that the person:
---------------------------------------------------------------------------

    \234\ See letter from Trading Coalition. One commenter 
specifically discussed floor traders and floor brokers and the 
regulatory regime that should apply to them following implementation 
of the Dodd Frank Act. See letter from Christopher K. Hehmeyer.
    We note that other commenters suggested that all swaps cleared 
on an exchange should be excluded from the dealer definitions. See 
letters cited in note 138, supra. However, the discussion here is 
limited to persons who are registered as floor traders and meet 
other conditions. Also, the final rule provision discussed here does 
not exclude floor traders from the definition of the term ``swap 
dealer;'' rather, it provides that if the stated conditions are met, 
certain swaps entered into by floor traders are excluded from the 
swap dealer analysis.
    \235\ See section 721(a)(11) of the Dodd-Frank Act (amending the 
definition of the term ``floor trader'' in CEA section 1a(23)). The 
Exchange Act does not have an equivalent regulatory category to 
floor trader under the CEA, and thus Congress did not make a similar 
amendment to the Exchange Act.
    \236\ The definition of the term ``floor trader'' includes a 
person entering into swaps on a ``contract market.'' See CEA section 
1a(23). This exclusion also encompasses swaps that a registered 
floor trader enters into on or subject to the rules of a SEF, in 
addition to on or subject to the rules of a DCM, so long as the swap 
meets the conditions stated in the exclusion.
---------------------------------------------------------------------------

    (i) Is registered with the CFTC as a floor trader pursuant to CFTC 
Regulation Sec.  3.11;
    (ii) enters into swaps solely with proprietary funds for that 
trader's own account on or subject to the rules of a DCM or SEF, and 
submits each such swap for clearing to a DCO;
    (iii) is not an affiliated person of a registered swap dealer;
    (iv) does not directly, or through an affiliated person, negotiate 
the terms of swap agreements, other than price and quantity or to 
participate in a request for quote process subject to the rules of a 
DCM or SEF;
    (v) does not directly or through an affiliated person offer or 
provide swap clearing services to third parties;
    (vi) does not directly or through an affiliated person enter into 
swaps that would qualify as hedging physical positions pursuant to CFTC 
Regulation Sec.  1.3(ggg)(6)(iii) or hedging or mitigating commercial 
risk pursuant to CFTC Regulation Sec.  1.3(kkk), with the exception of 
swaps that are executed opposite a counterparty for which the 
transaction would qualify as a bona fide hedging transaction;
    (vii) does not participate in any market making program offered by 
a DCM or SEF; and
    (viii) complies with the record keeping and risk management 
requirements of CFTC Regulation Sec. Sec.  23.201, 23.202, 23.203, and 
23.600 with respect to each such swap as if it were a swap dealer.\237\
---------------------------------------------------------------------------

    \237\ See CFTC Regulation Sec.  1.3(ggg)(6)(iv).
---------------------------------------------------------------------------

    This rule permits floor traders who might otherwise be required to 
register as a swap dealer to be registered solely as floor traders with 
the CFTC. Given the limitations on the scope of the rule, the 
requirements for floor traders using the relief to comply with 
recordkeeping and risk management rules applicable to swap dealers as a 
condition of the relief, and the fact that swaps subject to the rule 
are traded on a DCM or SEF and cleared through a DCO, the CFTC believes 
it is not necessary to have floor traders subject to this rule register 
as both floor traders and swap dealers as a result of swaps activities 
covered by the rule.\238\
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    \238\ The Commissions note the rule applies only to CFTC-
registered floor traders engaging in swaps on DCMs or SEFs and 
cleared through DCOs. As noted above, the SEC does not have a 
regulatory category under the Exchange Act equivalent to floor 
trader under the CEA and none of these provisions apply in the 
context of security-based swap dealers or any entity regulated under 
the Exchange Act. Any person engaging in security-based swap 
transactions, whether or not these activities are similar to those 
engaged in by floor traders, will need to independently consider 
whether they need to register as security-based swap dealers as a 
result of their activities.
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g. Additional Interpretive Issues Relating to the ``Swap Dealer'' 
Definition
    As noted above, the Commissions, in consideration of comments 
received, are making certain modifications to the interpretive guidance 
concerning the definition of the term ``swap dealer'' set out in the 
Proposing Release. However, the Commissions are retaining certain 
elements of their proposed interpretation of the term ``swap dealer,'' 
as discussed below.
    First, with respect to the comments asserting that the proposed 
interpretive approach is overly broad,\239\ we note that the statute 
provides that the term ``swap dealer'' means ``any person'' who engages 
in the activities described in any of the four prongs of the 
definition, subject to the exceptions and qualifications set out in the 
statute. In view of this statutory text, these comments effectively 
assert that the statute should be interpreted to include preconditions 
to swap dealer status that are not set forth in the statute. For 
example, the assertion that the swap dealer definition must be limited 
to persons who enter into swaps on both sides of the market would 
impose a requirement that does not exist in the statute. Similarly, the 
comments to the effect that swap dealers are only those persons who 
seek to profit by intermediating between swap market participants adds 
a requirement not set forth in the statute.
---------------------------------------------------------------------------

    \239\ See letters cited at notes 83 to 84, supra.
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    We believe, though, that the activities that cause a person to be 
covered by the

[[Page 30615]]

swap dealer definition should be addressed in the context of the four 
prongs of the statutory definition. That is, the relevant question is 
whether a person engages in any of the types of activities enumerated 
in the statute, and not whether the person meets any additional, 
supposedly implicit preconditions to swap dealer status.
    Second, the Commissions continue to believe, as stated in the 
Proposing Release, that accommodating demand and facilitating interest 
are appropriately used as factors in identifying swap dealers. As noted 
by commenters, however, the mere fact that a person entering into a 
particular swap has the effect of ``accommodating demand'' or 
``facilitating interest'' in swaps does not conclusively establish that 
the person is a swap dealer. Instead, the person's overall activities 
in the swap market (or particular sector of the swap market if the 
person is active in a variety of sectors) should be compared against 
these factors. If, in the context of its overall swap activities, a 
person fulfills a function of accommodating demand or facilitating 
interest in swaps for other parties, then these factors would be 
significant in the analysis and the person is likely to be a swap 
dealer.\240\
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    \240\ The language of the four statutory tests for swap dealer 
status (which refer to a person who holds itself out as a dealer, is 
commonly known as a dealer, makes a market in swaps or regularly 
enters into swaps with counterparties) contemplate that a dealer is 
a person who, through its swap activities, functions to create legal 
relationships that transfer risk between independent persons. See 
CEA section 1a(49)(A), 7 U.S.C. 1a(49)(A).
    See also Proposing Release, 75 FR at 80177 (describing swap 
dealers as those persons whose function is to serve as the points of 
connection in the swap markets); letter from COPE I at 4 (``Simply 
stated, dealers are in the regular business of being a point of 
connection to the market for others that need access to the market 
to hedge risk.''): Roundtable Transcript at 21 (remarks of Richard 
Ostrander, Morgan Stanley; ``a dealer is someone who is out there 
willing to enter into trades'').
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    Third, as discussed above, we have adopted some of the objective 
criteria suggested by commenters with respect to the indicia of holding 
oneself out as a dealer or being commonly known as a dealer, market 
making, and the ``regular business'' prongs of the swap dealer 
definition.\241\ For instance, allocating staff and technological 
resources to swap activity, deriving revenue and profit from swap 
activity, or responding to customer-initiated orders for swaps can all 
be indicative of having ``a regular business'' of entering into swaps 
and, therefore, indicative of being a swap dealer. In addition, 
activities such as providing advice about swaps or offering oneself as 
a point of connection to other parties needing access to the swap 
market are indicative of a person holding itself out as a swap dealer, 
if the person also enters into swaps in conjunction with such 
activities.
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    \241\ See part II.B.2.d.iii, supra.
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    The guidance we have provided about these indicia is responsive to 
concerns expressed by commenters about the application of the swap 
dealer definition to energy markets. As described above, some 
commenters stated that in energy markets, unlike in some other markets, 
end-users often enter into swaps directly with each other, on both 
sides of the market, without the involvement of a separate category of 
businesses serving as intermediaries.\242\ As a result, according to 
these commenters, energy swap market participants often engage in some 
of the activities that are indicative of swap dealer status. Some of 
these commenters contended that our activity-based interpretation of 
the swap dealer definition could therefore result in the inappropriate 
inclusion of energy market participants in the coverage of the 
definition of the term ``swap dealer.'' \243\
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    \242\ See parts II.A.2.f.ii and iii, supra.
    \243\ See letters cited in note 117, supra. Comments expressing 
concern that the definition of the term ``swap dealer'' could 
include physical commodities businesses also were presented to 
Congress during consideration of legislation leading to passage of 
the Dodd-Frank Act. See Proposed Legislation by the U.S. Department 
of the Treasury Regarding the Regulation of Over-The-Counter 
Derivatives Markets: Hearing Before the H. Comm. On Agriculture, 
111th Cong. 103 (2009) (submitted report on behalf of the Working 
Group of Commercial Energy Firms). However, as noted above, there is 
no exclusion in the statutory definition for such businesses.
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    We believe that the language of the statutory ``swap dealer'' 
definition supports our activity-based interpretation and does not 
support categorical exclusions of particular types of persons from the 
``swap dealer'' definition based on the general nature of their 
businesses. Further evidence that such a categorical exclusion is 
unwarranted is provided by the fact that a number of energy market 
participants--BP Plc., Cargill, Incorporated, Centrica Energy Limited, 
ConocoPhillips, EDF Trading Limited, GASELYS, Hess Energy Trading 
Company, LLC, Hydro-Quebec, Koch Supply & Trading, LP, RWE Supply & 
Trading GmbH, Shell Energy North America (US), L.P., STASCO, Totsa 
Total Oil Trading S.A., and Vattenfall Energy Trading Netherlands 
N.V.--have voluntarily joined ISDA as primary dealers.\244\ As 
previously noted, any business organization that ``deals in derivatives 
shall be eligible for election to membership in the Association as a 
primary member, provided that no person or entity shall be eligible for 
membership as a Primary Member if such person or entity participates in 
derivatives transactions solely for the purpose of risk hedging or 
asset or liability management.'' \245\ Hence, a categorical exclusion 
from the ``swap dealer'' definition based on any particular type of 
business or general market activity also would be inconsistent with 
current industry structure and practice.
---------------------------------------------------------------------------

    \244\ The list of ISDA Primary Members is available at https://www.isda.org/membership/isdamemberslist.pdf.
    \245\ See note 188, supra.
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    At the same time, however, the fact that a person engages in some 
swap activities that are indicative of swap dealer status does not, by 
itself, mean that the person is covered by the definition of the term 
``swap dealer.'' The ``not as part of a regular business'' exception 
and our guidance about its meaning address the issue of swap market 
participants that engage to some extent in the activities 
characteristic of swap dealers. The guidance we have provided here 
therefore provides the appropriate approach to addressing these issues 
in energy markets as elsewhere.
    Although several commenters attempted to articulate bright-line 
tests that would differentiate swap dealers from other swap market 
participants, the suggested bright-line tests generally could not be 
applied across the board to all types of swap market activity. For 
example, some commenters suggested that swap dealers can be identified 
as those who profit from entering into swaps on both sides of the 
market (and under the interpretive approach set forth in this Adopting 
Release, such activity may be an indicator of swap dealing).\246\ But 
other commenters said that, in certain circumstances, entering into 
swaps on both sides of the market is not necessarily indicative of swap 
dealing.\247\
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    \246\ See letters cited in note 84, supra.
    \247\ See letters cited in note 86, supra. As noted above in the 
discussion of market making, a swap dealer may in some circumstances 
enter into swaps on only one side of the market.
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    The ways in which participants throughout the market use swaps are 
simply too diverse for swap dealer status to be resolved with a single, 
one-factor test. This is reflected in the statutory definition of the 
term ``swap dealer'' itself. Focused as it is on types of activities, 
with four prongs set forth in the alternative to cover different types 
of swap dealing activity, the statutory swap dealer definition is not 
susceptible to the bright-line test that

[[Page 30616]]

some commenters seek. For these reasons, we continue to believe that it 
is appropriate to apply the multi-factor interpretive approach set 
forth in this Adopting Release.
    In closing, we emphasize that the purpose of in this part IV.A.4 is 
to provide guidance as to how the rules further defining the term 
``swap dealer'' will be applied in particular, complex situations where 
a person's status as a swap dealer may be uncertain. Even though 
bright-line tests and categorical exclusions are inappropriate, we 
recognize that the large majority of market participants use swaps for 
normal course hedging, financial, investment or trading purposes and 
are not swap dealers.
5. Final Rules and Interpretation--Definition of ``Security-Based Swap 
Dealer''
a. General Reliance on the Dealer-Trader Distinction
    As discussed above, we are adopting a rule under the Exchange Act 
that defines ``security-based swap dealer'' in terms of the four 
statutory tests and the exclusion for security-based swap activities 
that are not as part of a ``regular business.'' \248\ Also, we believe 
that the dealer-trader distinction \249\--which already forms a basis 
for identifying which persons fall within the longstanding Exchange Act 
definition of ``dealer''--in general provides an appropriate framework 
for interpreting the meaning of ``security-based swap dealer.'' \250\ 
While there are differences in the structure of those two statutory 
definitions,\251\ we believe that their parallels--particularly both 
definitions' exclusions for activities that are ``not part of a regular 
business''--warrant analogous interpretive approaches for 
distinguishing dealers from non-dealers.
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    \248\ See Exchange Act rule 3a71-1(a), (b).
    \249\ See note 31, supra.
    \250\ The principles embedded within the ``dealer-trader 
distinction'' are not solely useful for distinguishing persons who 
constitute dealers from active ``traders,'' but also are applicable 
to distinguishing dealers from non-dealers such as hedgers or 
investors. The ``dealer-trader'' nomenclature has been used for 
decades. See Loss, Securities Regulation 722 (1st ed. 1951) (``One 
aspect of the `business' concept is the matter of drawing the line 
between a `dealer' and a trader--an ordinary investor who buys and 
sells for his own account with some frequency.'').
    \251\ For example, while the ``dealer'' definition encompasses 
certain persons in the business of ``buying and selling'' 
securities, the ``security-based swap dealer'' definition does not 
address either ``buying'' or ``selling.'' As we noted in the 
Proposing Release, we do not believe that the lack of those terms in 
the ``security-based swap dealer'' definition leads to material 
interpretive distinctions, as the Dodd-Frank Act amended the 
Exchange Act definitions of ``buy'' and ``purchase,'' and the 
Exchange Act definitions of ``sale'' and ``sell,'' to encompass the 
execution, termination (prior to its scheduled maturity date), 
assignment, exchange or similar transfer or conveyance of, or 
extinguishing of rights or obligations under, a security-based swap. 
See Proposing Release, 75 FR at 80178 n.26 (citing Dodd-Frank Act 
sections 761(a)(3), (4), which amend Exchange Act sections 3(a)(13), 
(14)).
    At the same time, we note that the ``dealer'' definition 
requires the conjunctive ``buying and selling''--which connotes a 
degree of offsetting two-sided activity. In contrast, the 
``security-based swap dealer'' definition (particularly the 
``regularly enters into security-based swaps'' language of the 
definition's third test) lacks that conjunctive terminology.
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    As discussed above,\252\ the Commissions note that interpretations 
of the applicability of the dealer-trader distinction to the ``swap 
dealer'' definition under the CEA do not affect existing, or future, 
interpretations of the dealer-trader distinction under the Exchange 
Act--both with regard to the ``security-based swap dealer'' definition, 
and with regard to the ``dealer'' definition.
---------------------------------------------------------------------------

    \252\ See note 171, supra.
---------------------------------------------------------------------------

    In interpreting the security-based swap dealer definition in terms 
of the dealer-trader distinction, the Commissions have been mindful 
that some commenters expressed the view that we instead should rely on 
other interpretive factors that were identified in the Proposing 
Release (e.g., accommodating demand). We believe, nonetheless, that the 
dealer-trader distinction forms the basis for a framework that 
appropriately distinguishes between persons who should be regulated as 
security-based swap dealers and those who should not. We also believe 
that the distinction affords an appropriate degree of flexibility to 
the analysis, and that it would not be appropriate to seek to codify 
the distinction.
    At the same time, the Commissions recognize that the dealer-trader 
distinction needs to be adapted to apply to security-based swap 
activities in light of the special characteristics of security-based 
swaps and the differences between the ``dealer'' and ``security-based 
swap dealer'' definitions. Relevant differences include:
     Level of activity--Security-based swap markets are marked 
by less activity than markets involving certain other types of 
securities (while recognizing that some debt and equity securities are 
not actively traded). This suggests that in the security-based swap 
context concepts of ``regularity'' should account for the level of 
activity in the market.
     No separate issuer--Each counterparty to a security-based 
swap in essence is the ``issuer'' of that instrument; in contrast, 
dealers in cash market securities generally transact in securities 
issued by another party. This distinction suggests that the concept of 
turnover of ``inventory'' of securities, which has been identified as a 
factor in connection with the dealer-trader distinction, is inapposite 
in the context of security-based swaps. Moreover, this distinction--
along with the fact that the ``security-based swap dealer'' definition 
lacks the conjunctive ``buying and selling'' language of the ``dealer'' 
definition \253\--suggests that concepts of two-sided markets at times 
would be less relevant for identifying ``security-based swap dealers'' 
than they would be for identifying ``dealers.'' \254\
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    \253\ See note 251, supra.
    \254\ The analysis also should account for the fact that a party 
to a security-based swap can use other derivatives or cash market 
instruments to hedge the risks associated with the security-based 
swap position, meaning that two-way trading is not necessary to 
maintain a flat risk book.
---------------------------------------------------------------------------

     Predominance of over-the-counter and non-standardized 
instruments--Security-based swaps thus far are not significantly traded 
on exchanges or other trading systems, in contrast to some cash market 
securities (while recognizing that many cash market securities also are 
not significantly traded on those systems).\255\ These attributes--
along with the lack of ``buying and selling'' language in the security-
based swap dealer definition, as noted above--suggest that concepts of 
what it means to make a market need to be construed flexibly in the 
context of the security-based swap market.\256\
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    \255\ Even though we expect trading of security-based swaps on 
security-based swap execution facilities or exchanges following the 
implementation of Title VII, we expect there to remain a significant 
amount of over-the-counter activity involving security-based swaps.
    \256\ For example, the definition of ``market maker'' in 
Exchange Act section 3(a)(38)--which is applicable for purposes of 
the Exchange Act ``unless the context otherwise requires'' (see 
Exchange Act section 3(a))--defines the term ``market maker'' to 
mean ``any specialist permitted to act as a dealer, any dealer 
acting in the capacity of block positioner, and any dealer who, with 
respect to a security, holds himself out (by entering quotations in 
an inter-dealer communications system or otherwise) as being willing 
to buy and sell such security for his own account on a regular or 
continuous basis.'' That definition is useful in the context of 
systems in which standardized securities are regularly or 
continuously bought and sold, but would not be apposite in the 
context of non-standardized securities or securities that are not 
regularly or continuously transacted.
---------------------------------------------------------------------------

     Mutuality of obligations and significance to ``customer'' 
relationship--In contrast to a secondary market transaction involving 
equity or debt securities, in which the completion of a purchase or 
sale transaction can be expected to terminate the mutual obligations of 
the parties to the

[[Page 30617]]

transaction, the parties to a security-based swap often will have an 
ongoing obligation to exchange cash flows over the life of the 
agreement. In light of this attribute, some market participants have 
expressed the view that they have ``counterparties'' rather than 
``customers'' in the context of their swap activities.
    It also is necessary to use the dealer-trader distinction to 
interpret the security-based swap dealer definition so that the 
statutory provisions that will govern security-based swap dealers are 
applied in an effective and logical way. Those statutory provisions 
added by the Dodd-Frank Act advance financial responsibility (e.g., the 
ability to satisfy obligations, and the maintenance of counterparties' 
funds and assets) associated with security-based swap dealers' 
activities,\257\ other counterparty protections,\258\ and the promotion 
of market efficiency and transparency.\259\ As a whole, the relevant 
statutory provisions suggest that we should apply the dealer-trader 
distinction to interpret the security-based swap dealer definition in a 
way that identifies those persons for which regulation is warranted 
either: (i) Due to the nature of their interactions with 
counterparties; \260\ or (ii) to promote market stability and 
transparency, in light of the role those persons occupy within the 
security-based swap markets.\261\
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    \257\ E.g., capital and margin requirements (Exchange Act 
section 15F(e)), and requirements for segregation of collateral 
(Exchange Act section 3E).
    \258\ E.g., requirements with respect to business conduct when 
transacting with special entities (Exchange Act sections 15F(h)(2), 
(h)(4), (h)(5)); disclosure requirements (Exchange Act section 
15F(h)(3)(B)); requirements for fair and balanced communications 
(Exchange Act section 15F(h)(3)(C)); other requirements related to 
the public interest and investor protection (Exchange Act section 
15F(h)(3)(D)); and conflict of interest provisions (Exchange Act 
section 15F(j)(5)).
    \259\ E.g., reporting and recordkeeping requirements (Exchange 
Act section 15F(f)); daily trading records requirements (Exchange 
Act section 15F(g)); regulatory standards related to the 
confirmation, processing, netting, documentation and valuation of 
security-based swaps (Exchange Act section 15F(i)); position limit 
monitoring requirements (Exchange Act section 15F(j)(1)); risk 
management procedure requirements (Exchange Act section 15F(j)(2)); 
and requirements related to the disclosure of information to 
regulators (Exchange Act section 15F(j)(3)).
    \260\ The conclusion that a person's relationship with its 
counterparties can lead to associated obligations is consistent with 
the ``shingle theory,'' which implies a duty of fair dealing when a 
person hangs out its shingle to do business. See Securities and 
Exchange Commission, Report of the Special Study of Securities 
Market Part I at 238 (1963) (``An obligation of fair dealing, based 
upon the general antifraud provisions of the Federal securities 
laws, rests upon the theory that even a dealer at arm's length 
impliedly represents when he hangs out his shingle that he will deal 
fairly with the public.''; footnote omitted); Weiss, Registration 
and Regulation of Brokers and Dealers 171 (1965) (``the solicitation 
and acceptance by a broker-dealer of orders from customers and the 
confirmation of transactions do constitute a representation by the 
broker-dealer that he will deal fairly with his customers and that 
such transactions will be handled promptly in the usual manner, in 
accordance with trade custom'').
    \261\ The importance of regulating dealers due to the centrality 
of their market role was illustrated by the Government Securities 
Act of 1986. When Congress provided for the regulation of government 
securities dealers, Congress specifically cited the lack of 
regulation as contributing to the failures of several unregulated 
government securities dealers. See S. Rep. No. 99-426 (1986), as 
reprinted in 1986 U.S.C.C.A.N. 5395, 5400-04. The resulting statute 
provided for a definition of ``government securities dealer'' that 
in relevant part is parallel to the definitions of ``dealer'' and 
``security-based swap dealer,'' particularly with regard to sharing 
an exclusion for activities that are not part of a ``regular 
business.'' See Exchange Act section 3(a)(44).
---------------------------------------------------------------------------

b. Principles for Applying the Dealer-Trader Distinction to Security-
Based Swap Activity
    In light of the statutory security-based swap dealer definition, 
statutory provisions applicable to security-based swap dealers and 
market characteristics addressed above, the Commissions believe that 
the factors set forth below are relevant for identifying security-based 
swap dealers and for distinguishing those dealers from other market 
participants. This guidance seeks to address commenter requests that we 
further clarify the scope of the security-based swap dealer definition, 
and the Commissions believe that these factors provide appropriate 
guidance without being inflexible or allowing the opportunity for 
evasion that may accompany a bright-line test. At the same time, the 
determination of whether a person is acting as a security-based swap 
dealer ultimately depends on the relevant facts and circumstances. In 
light of the overall context in which a person's activity occurs, the 
absence of one or more of these factors does not necessitate the 
conclusion that a person is not a security-based swap dealer.\262\
---------------------------------------------------------------------------

    \262\ Similarly, depending on the relevant facts and 
circumstances, the presence of certain of the illustrative 
activities described here does not necessitate the conclusion that 
the entity is a dealer.
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     Providing liquidity to market professionals or other 
persons in connection with security-based swaps. A market participant 
might manifest this indication of dealer activity by accommodating 
demand or facilitating interest expressed by other market 
participants,\263\ holding itself out as willing to enter into 
security-based swaps, being known in the industry as being available to 
accommodate demand for security-based swaps, or maintaining a sales 
force in connection with security-based swap activities.\264\
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    \263\ This is to be distinguished from an entity entering into 
security-based swaps for other business purposes, such as to gain 
economic exposure to a particular market.
    \264\ A sales force, however, is not a prerequisite to a person 
being a security-based swap dealer. For example, a person that 
enters into security-based swaps in a dealing capacity can fall 
within the dealer definition even if it uses an affiliated entity to 
market and/or negotiate those security-based swaps (e.g., the person 
is a booking entity). Depending on the applicable facts and 
circumstances, the affiliate that performs the marketing and/or 
negotiation functions may fall within the Exchange Act's definition 
of ``broker'' (which was not revised by Title VII). See Exchange Act 
section 3(a)(4)(A).
---------------------------------------------------------------------------

     Seeking to profit by providing liquidity in connection 
with security-based swaps. A market participant may manifest this 
indication of security-based swap dealer activity--which is consistent 
with the definition's ``regular business'' requirement--by seeking 
compensation in connection with providing liquidity involving security-
based swaps (e.g., by seeking a spread, fees or other compensation not 
attributable to changes in the value of the security-based swap).\265\ 
The Commissions do not believe that this necessarily requires that a 
person be available to take either side of the market at any time, or 
that a person continuously engage in this type of activity, to be a 
security-based swap dealer. Although one commenter expressed the view 
that the security-based swap dealer definition requires that a person 
be consistently available to take either side of the market,\266\ in 
our view such an approach would be underinclusive.\267\
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    \265\ Indicia of this objective may include, but would not be 
limited to, maintaining separate profit/loss statements in 
connection with this type of activity, and/or devoting staff and 
resources to this type of activity.
    In this regard, we believe that the issue of whether a person 
tends to take the prices offered in the market, rather than helping 
to set those prices (such as by providing quotes, placing limit 
orders, or otherwise accommodating demand), can be relevant as a 
factor for distinguishing security-based swap dealers from non-
dealers. At the same time, we are mindful that a dealer may also 
accept the market price as part of its dealer activity (such as when 
a person enters into a security-based swap to offset the risk it 
assumes in connection with its security-based swap dealing 
activity); as a result, the fact that a person regularly takes the 
market price as part of its security-based swap transactions does 
not foreclose the possibility that the person may be a security-
based swap dealer.
    \266\ See letter from ISDA I.
    \267\ It is possible for a dealer to be compensated for 
providing liquidity by entering into sequential offsetting 
positions, or by hedging the security-based swap position by using a 
different type of security-based swap, a swap or some other 
financial instrument. Accordingly, a rule of decision that permitted 
a person to avoid dealer regulation by providing liquidity in 
connection with security-based swaps, and laying off the associated 
risk using a different type of security-based swap, a swap or a 
different instrument entirely, would be susceptible to abuse. 
Moreover, as noted above, the definition of ``security-based swap 
dealer'' does not contain the ``buying and selling'' language found 
in the general Exchange Act definition of ``dealer.'' Thus, while 
being regularly willing to enter into either side of the security-
based swap market would suggest that a person is engaged in dealing 
activity, the absence of such activity should not necessarily lead 
to an inference that a person is not acting as a dealer.
     We also note that some commenters have stated that two-way 
quoting by itself should not necessarily be enough to make a person 
a dealer, and some of those commenters specifically stated that a 
person may use two-sided quotes as part of the price discovery 
process or to elicit trading interest. See, e.g., letter from MFA I. 
Here too, it is important to consider whether the activity also has 
a dealing business purpose, such as seeking to profit by providing 
liquidity. Moreover, all participants in the security-based swap 
market, whether or not security-based swap dealers, should be 
mindful of the potential application of the antifraud and anti-
manipulation provisions of the federal securities laws to such 
activities. Section 10(b) of the Exchange Act and Exchange Act rule 
10b-5 particularly prescribe the use of any manipulative or 
fraudulent device in connection with the purchase or sale of any 
security, which includes manipulative trading. See Terrance 
Yoshikawa, Securities Exchange Act Release No. 53731 (Apr. 26, 
2006), 87 SEC Docket 2924, 2930-31 & n.19 (citing Ernst & Ernst v. 
Hochfelder, 425 U.S. 185, 199 (1976)). The SEC has characterized 
manipulation as ``the creation of deceptive value or market activity 
for a security, accomplished by an intentional interference with the 
free forces of supply and demand.'' See Swartwood, Hesse, Inc., 50 
S.E.C. 1301, 1307 (1992) (citing Hochfelder, 425 U.S. at 199; 
Schreiber v. Burlington Northern, Inc., 472 U.S. 1 (1985); Feldbaum 
v. Avon Products, Inc., 741 F.2d 234 (8th Cir. 1984)).

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[[Page 30618]]

     Providing advice in connection with security-based swaps 
or structuring security-based swaps. Advising a counterparty as to how 
to use security-based swaps to meet the counterparty's hedging goals, 
or structuring security-based swaps on behalf of a counterparty, also 
would indicate security-based swap dealing activity. It particularly is 
important that persons engaged in those activities are appropriately 
regulated so that their counterparties will receive the protections 
afforded by certain of the statutory business conduct rules (e.g., 
special entity requirements and communication requirements) \268\ 
applicable to security-based swap dealers.\269\ The Commissions 
recognize commenter concerns that end-users may also develop new types 
of security-based swaps,\270\ but also recognize that the activities of 
end-users related to the structuring of security-based swaps for 
purposes of hedging commercial risk are appreciably different than 
being in the business of structuring security-based swaps on behalf of 
a counterparty.
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    \268\ The SEC has proposed rules to implement Title VII 
provisions relating to external business conduct standards for 
security-based swap dealers (as well as major security-based swap 
participants). See Exchange Act Release No. 64766 (June 29, 2011), 
76 FR 42396 (July 18, 2011).
    \269\ This factor would also reasonably take into account 
whether a preexisting relationship involving other types of 
securities or other financial instruments is present. For example, 
to the extent a person has an existing broker or dealer relationship 
with a counterparty in connection with other types of securities, 
and also enters into a security-based swap with that counterparty, a 
reasonable inference would be that the person entered into the 
security-based swap in a dealer capacity. Any other approach would 
invite abuse, as persons could seek to leverage existing 
relationships of trust while avoiding regulation as a security-based 
swap dealer.
    \270\ See letter from FSR I.
---------------------------------------------------------------------------

     Presence of regular clientele and actively soliciting 
clients. These dealer-trader factors would reasonably appear to be 
applicable in the security-based swap context, just as they are 
applicable in the context of other types of securities, as indicia of a 
business model that seeks to profit by providing liquidity. The 
Commissions are mindful that some industry participants have 
highlighted a distinction between ``counterparties'' and ``customers'' 
in connection with swaps, and have suggested that they have no 
``customers'' in the swap context. We do not believe such points of 
nomenclature are significant for purposes of identifying security-based 
swap dealers, however.\271\
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    \271\ For purposes of the dealer-trader analysis, as it applies 
in the context of security-based swaps or any other security, we 
would not expect contractual provisions stating that the 
counterparty is not relying on the person's advice to have any 
significance.
---------------------------------------------------------------------------

     Use of inter-dealer brokers. As with activities involving 
other types of securities, the Commissions would expect that a person's 
use of an inter-dealer broker in connection with security-based swap 
activities to be an indication of the person's status as a dealer.
     Acting as a market maker on an organized security-based 
swap exchange or trading system. Acting in a market maker capacity on 
an organized exchange or trading system for security-based swaps would 
indicate that the person is acting as a dealer.\272\ While the 
Commissions recognize that some commenters have expressed the view that 
persons who solely enter into security-based swaps on an organized 
security-based swap exchange or trading system should not be regulated 
as security-based swap dealers,\273\ in our view such an approach would 
be contrary to the express language of the definition. This is not to 
say, of course, that the presence of an organized exchange or trading 
system is a prerequisite to being a market maker for purposes of the 
security-based swap dealer definition.\274\ Moreover, acting as a 
market maker is not a prerequisite to being a security-based swap 
dealer.\275\ On the other hand, being a member of an organized exchange 
or trading system for purposes of trading security-based swaps does not 
necessarily by itself make a person a security-based swap dealer.\276\
---------------------------------------------------------------------------

    \272\ Under the proposal of the SEC, the Board, the OCC and the 
FDIC to implement the provisions of section 619 of the Dodd-Frank 
Act (also known as the ``Volcker Rule''), a person who claims the 
benefit of the market maker exception to that section's prohibitions 
and restrictions on proprietary trading in connection with security-
based swap activities would be required to register with the SEC as 
a security-based swap dealer, unless the person is exempt from 
registration or is engaged in a dealing business outside the U.S., 
and is subject to substantive regulation in the jurisdiction where 
the business is located. See Securities Exchange Act Release No. 
65545, 76 FR 68846, 68947 (Nov. 7, 2011) (proposed implementing rule 
Sec.  ------.4(b)(2)(iv)(C)).
    \273\ See, e.g., letter from Traders Coalition.
    \274\ Given the current nature of the security-based swap 
market, including the present level of activity and the present lack 
of significant trading of security-based swaps on exchanges or 
organized trading systems, we believe that it would negate the 
legislative intent to interpret the definition's use of market 
making concepts to require the same use of quotation media that are 
incorporated into the interpretation of market making concepts in 
the context of securities that are actively traded on an organized 
exchange or trading system. At the same time, we recognize that 
routine activity in the security-based swap market is not 
necessarily indicative of making a market in security-based swaps. 
For example, persons may routinely be active in the market for 
purposes of hedging, to advance their investment objectives, or to 
engage in proprietary trading.
    \275\ The definition of ``security-based swap dealer'' contains 
four alternative tests, only two of which use market making 
terminology. Moreover, the third test of the security-based swap 
dealer definition--which addresses persons who regularly enter into 
security-based swaps as an ordinary course of business for their own 
account--appears particularly inapt as a proxy for market making 
activity. Transacting with customers is not an element of this 
alternative test. A person thus may be a security-based swap dealer 
even if it transacts exclusively with other market professionals. 
Cf. OCC, ``Risk Management of Financial Derivatives'' 3-4 (1997) 
(stating that OCC has classified banks as ``Tier I'' dealers if they 
act as market makers by ``providing quotes to other dealers and 
brokers, and other market professionals''). Compare letter from ISDA 
I (taking the view that the dealer definition should be interpreted 
in the context of market-making concepts).

    \276\ The analysis of the status of members of such exchanges 
and trading systems in part may be influenced by the final Exchange 
Act rules that govern such systems, as well as the internal rules of 
such systems.
---------------------------------------------------------------------------

As with the current application of the dealer-trader distinction to the 
Exchange Act ``dealer'' definition, the question of whether a person is 
acting as a security-based swap dealer ultimately will turn upon the 
relevant facts and circumstances, as informed by these criteria.
c. Additional Interpretive Issues
    Activity by hedgers. As noted above, a number of commenters raised 
concerns that an overbroad ``security-based swap dealer'' definition 
would inappropriately encompass persons

[[Page 30619]]

using security-based swaps for hedging purposes.\277\ As we stated in 
the Proposing Release, however, under the dealer-trader distinction the 
Commissions would expect persons that use security-based swaps to hedge 
their business risks, absent other activity, likely would not be 
dealers.\278\ We maintain that view. In other words, to the extent that 
a person engages in security-based swap activity to hedge commercial 
risk, or otherwise to hedge risks unrelated to activities that 
constitute dealing under the dealer-trader distinction (particularly 
activities that have the business purpose of seeking to profit by 
providing liquidity in connection with security-based swaps), the 
Commissions would not expect those hedging transactions to lead a 
person to be a security-based swap dealer.\279\ Of course, to the 
extent a person engages in dealing activities involving security-based 
swaps, the presence of offsetting positions that hedge those dealing 
activities would not excuse the requirement that the person register as 
a security-based swap dealer.\280\
---------------------------------------------------------------------------

    \277\ See, e.g., letter from Church Alliance.
    \278\ See Proposing Release, 75 FR at 80178 n.27. The Proposing 
Release also noted that if a person's other activities satisfy the 
definition of security-based swap dealer, the person must comply 
with the applicable requirements with regard to all of its security-
based swap activities, absent an order to the contrary. We further 
noted in the Proposing Release that we would expect end-users to use 
security-based swaps for hedging purposes less commonly than they 
use swaps for hedging purposes.
    \279\ In addition, consistent with the exclusion from the dealer 
analysis of activities involving majority-owned affiliates, see part 
II.C, infra, to the extent that a person engages in activities to 
hedge positions subject to the inter-affiliate exclusion, absent 
other activity, the Commission would not expect those hedging 
transactions to lead a person to be a security-based swap dealer. 
Conversely, security-based swap activities connected with the 
indicia of dealing discussed above (e.g., seeking to profit by 
providing liquidity in connection with security-based swaps) 
themselves would suggest security-based swap dealing activity.
    \280\ For example, if a person were to use other instruments to 
hedge the risks associated with its security-based swap dealing 
activity, that hedging would not undermine the obligation of the 
person to register as a security-based swap dealer, notwithstanding 
the fact that it could be asserted that the dealing positions happen 
to hedge those other positions.
---------------------------------------------------------------------------

    No predominance test. As discussed in the Proposing Release, the 
Commissions do not believe that the security-based swap dealer analysis 
should appropriately turn upon whether a person's dealing activity 
constitutes that person's sole or predominant business. The separate de 
minimis exemption, however, may have the effect of excusing from dealer 
regulation those persons whose security-based swap dealing activities 
are relatively modest.
    Presence or absence of a customer relationship. Although commenters 
have expressed the view that a person that engages in security-based 
swap activities on an organized market should not be deemed to be a 
dealer unless it engages in those activities with customers,\281\ we do 
not agree. It is true that having a customer relationship can 
illustrate a business model of seeking to profit by providing 
liquidity, and thus provide one basis for concluding that a person is 
acting as a security-based swap dealer. Nonetheless, the presence of 
market making terminology within the definition is inconsistent with 
the view that a security-based swap dealer must have ``customers.'' 
Also, Title VII requirements applicable to security-based swap dealers 
address interests apart from customer protection.\282\ Accordingly, to 
the extent that a person regularly enters into security-based swaps 
with a view toward profiting by providing liquidity--rather than by 
taking directional positions--that person may be a security-based swap 
dealer regardless of whether it views itself as maintaining a 
``customer'' relationship with its counterparties.\283\
---------------------------------------------------------------------------

    \281\ See letters from ISDA I and Traders Coalition.
    \282\ Particularly in light of the view expressed by some market 
participants that they only have ``counterparties'' in the swap 
markets, and not ``customers,'' any interpretation of the 
``security-based swap dealer'' definition that is predicated on the 
existence of a customer relationship may lead to an overly narrow 
construction of the definition.
    \283\ For example, a person's activity involving entering into 
security-based swaps on a SEF may cause it to be a security-based 
swap dealer even in the absence of a customer relationship with any 
of its counterparties.
---------------------------------------------------------------------------

    Criteria associated with ``holding self out'' as a dealer or being 
``commonly known in the trade'' as a security-based swap dealer. The 
Proposing Release articulated a number of activities that could satisfy 
the definition's tests for a person ``holding itself out'' as a dealer 
or being ``commonly known in the trade'' as a dealer.\284\ Several 
commenters criticized those proposed criteria, largely on the grounds 
that those criteria would inappropriately encompass end-users who seek 
to use security-based swaps for hedging purposes, or otherwise would be 
overbroad or irrelevant.\285\ The Commissions recognize the 
significance of the concerns those commenters raised, and agree that 
these activities need to be considered within the context of whether a 
person engages in those activities with the purpose of facilitating 
dealing activity. While we do not believe that any of those activities 
by themselves would necessarily indicate that a person is acting as a 
security-based swap dealer, under certain circumstances they may serve 
as an indicia of a business purpose of seeking to profit by providing 
liquidity in connection with security-based swaps.\286\
---------------------------------------------------------------------------

    \284\ As noted above, these were: contacting potential 
counterparties to solicit interest; developing new types of swaps or 
security-based swaps and informing potential counterparties of their 
availability and of the person's willingness to enter into the swap 
or security-based swap; membership in a swap association in a 
category reserved for dealers; providing marketing materials 
describing the type of swaps or security-based swaps the party is 
willing to enter into; and generally expressing a willingness to 
offer or provide a range of products or services that include swaps 
or security-based swaps. See Proposing Release, 75 FR at 80178.
    \285\ See part II.A.2.a, supra.
    \286\ While the Proposing Release identified ``membership in a 
swap association in a category reserved for dealers'' as a factor in 
connection with the ``holding out'' and ``commonly known'' tests, we 
recognize that, depending on the applicable facts and circumstances, 
such membership may not be sufficient to cause a person to be a 
security-based swap dealer if the person does nothing else to cause 
it to be considered a dealer.
---------------------------------------------------------------------------

6. Requests for Exclusions From the Dealer Definitions
    Certain commenters have sought to exclude entire categories of 
persons from the dealer definitions, notwithstanding that some persons 
in those categories may engage in the activities set forth in the 
statutory definition (as further defined by the Commissions).\287\ The 
final rules nonetheless do not incorporate categorical exclusions of 
persons from the dealer definitions because the statutory definitions 
provide that ``any person'' who engages in the activities enumerated in 
the definitions is covered by the dealer definitions, unless the 
person's activities fall within one of the statutory exceptions.\288\ 
In this regard, it is significant that the exceptions in the dealer 
definitions depend on whether a person engages in certain types of swap 
or security-based swap activity, not on other characteristics of the 
person. That is, the exceptions apply for swaps between an insured 
depository institution and its customers in connection with originating 
loans,\289\ swaps or security-based swaps entered into not as a part of 
a regular business,\290\ and swap or security-based swap dealing that 
is below a de minimis

[[Page 30620]]

level.\291\ The Dodd-Frank Act does not exclude any category of persons 
from the coverage of the dealer definitions; rather, it excludes 
certain activities from the dealer analysis.
---------------------------------------------------------------------------

    \287\ See part II.A.2.f, supra.
    \288\ See CEA section 1a(49), 7 U.S.C. 1a(49); Exchange Act 
section 3(a)(71), 15 U.S.C. 78c(a)(71).
    \289\ See CEA section 1a(49)(A), 7 U.S.C. 1a(49)(A).
    \290\ See CEA section 1a(49)(C), 7 U.S.C. 1a(49)(C); Exchange 
Act section 3(a)(71)(C), 15 U.S.C. 78c(a)(71)(C).
    \291\ See CEA section 1a(49)(D), 7 U.S.C. 1a(49)(D); Exchange 
Act section 3(a)(71)(D), 15 U.S.C. 78c(a)(71)(D).
---------------------------------------------------------------------------

    Given that the statutory dealer definitions focus on a person's 
activity, the Commissions believe that it is appropriate to determine 
whether a person meets any of the tests set forth in those statutory 
definitions, and thus is acting as a swap dealer or security-based swap 
dealer, on a case-by-case basis reflecting the applicable facts and 
circumstances.\292\ If a person's swap or security-based swap 
activities are of a nature to be covered by the statutory definitions, 
and those activities are not otherwise excluded, then the person is 
covered by the definitions. The contrary is equally true--a person who 
is not engaged in activities covered by the statutory definitions, or 
whose activities are excluded from the definition, is not covered by 
the definitions.\293\ The per se exclusions requested by the commenters 
have no foundation in the statutory text, and have the potential to 
lead to arbitrary line drawing that may result in disparate regulatory 
treatment and inappropriate competitive advantages.\294\
---------------------------------------------------------------------------

    \292\ The Commissions believe that a facts and circumstances 
approach is particularly appropriate here, where the broad terms of 
the statutory dealer definitions indicate that the Commissions 
should apply their expertise and discretion to interpret the 
statutory text.
    \293\ For example, a manufacturer, producer, processor, or 
merchant that enters into swaps to hedge its currency or interest 
rate risk, absent any facts and circumstances establishing dealing 
activity, is not a swap dealer.
    \294\ In response to the commenters concerns, the Commissions 
have adopted certain tailored exclusions of certain types of swaps 
and security-based swaps in the final rule.
---------------------------------------------------------------------------

    The final rules particularly do not include any exclusions for 
aggregators of swaps or other persons that use swaps in connection with 
the physical commodity markets, including swaps in connection with the 
generation, transmission and distribution of electricity. It is likely, 
though, that a significant portion of the financial instruments used 
for risk management by such persons are forward contracts in 
nonfinancial commodities that are excluded from the definition of the 
term ``swap.'' \295\ Such forward contracts are not relevant in 
determining whether a person is a swap dealer.
---------------------------------------------------------------------------

    \295\ A coalition of not-for-profit power utilities and electric 
cooperatives has advised that it plans to submit a request for an 
exemption for transactions between entities described in section 
201(f) of the Federal Power Act, as contemplated by section 722(f) 
of the Dodd-Frank Act. See letter from NFPEEU. Separately, some 
regional transmission organizations and independent systems 
operators have expressed interest in submitting an exemption 
application to the CFTC as well. See generally section 722(e) of the 
Dodd-Frank Act. Such exemptions, if granted after notice and comment 
pursuant to CEA section 4(c), 7 U.S.C. 6(c), could further address 
commenters' concerns in this regard.
---------------------------------------------------------------------------

B. ``Swap Dealer'' Exclusion for Swaps in Connection With Originating a 
Loan

1. Proposed Approach
    The statutory definition of the term ``swap dealer'' excludes an 
insured depository institution (``IDI'') ``to the extent it offers to 
enter into a swap with a customer in connection with originating a loan 
with that customer.'' \296\ This exclusion does not appear in the 
definition of the term ``security-based swap dealer.''
---------------------------------------------------------------------------

    \296\ See CEA section 1a(49)(A), 7 U.S.C. 1a(49)(A).
---------------------------------------------------------------------------

    Proposed CFTC Regulation Sec.  1.3(ggg)(5) would implement this 
statutory exclusion by providing that an IDI's swaps with a customer in 
connection with originating a loan to that customer are disregarded in 
determining if the IDI is a swap dealer. In order to prevent evasion, 
the proposed rule further provided that the statutory exclusion does 
not apply where the purpose of the swap is not linked to the financial 
terms of the loan; the IDI enters into a ``sham'' loan; or the 
purported ``loan'' is actually a synthetic loan such as a loan credit 
default swap or loan total return swap.
1. Commenters' Views
    Nearly all the commenters on this issue were IDIs seeking a broad 
interpretation of the exclusion. The commenters addressed four primary 
issues: (i) The type of swaps that should be covered by the exclusion; 
(ii) the time period during which parties would be required to enter 
into the swap in order for the swap to be considered to be ``in 
connection with originating a loan;'' (iii) which transactions should 
be deemed to be ``loans'' for purposes of the exclusion; and (iv) which 
entities should be included within the definition of IDI.
    First, regarding the type of swap that should be covered by the 
exclusion, as proposed, Sec.  1.3(ggg)(5) would require that the rate, 
asset, liability or other notional item underlying the swap be, or be 
directly related to, a financial term of the loan (such as the loan's 
principal amount, duration, rate of interest or currency). Some 
commenters agreed with the principle of limiting the exclusion to swaps 
that are connected to the financial terms of the loan, stating that the 
exclusion should cover any swap between a borrower and the lending IDI, 
so long as the swap's notional amount is no greater than the loan 
amount, the swap's duration is no longer than the loan's duration, and 
the swap's index and payment dates match the index and payment dates of 
the loan.\297\ Another commenter, agreeing with the proposed approach, 
said that there is no basis to extend the loan origination exclusion to 
swaps related to the borrower's business risks, as opposed to the 
financial terms of the loan.\298\
---------------------------------------------------------------------------

    \297\ See letters from Branch Banking & Trust Company (``BB&T'') 
dated February 3, 2011 (``BB&T I''), B&F Capital Markets, Inc. 
(``B&F Capital'') dated February 18, 2011 (``B&F Capital I''), 
Capital One Financial Corporation (``Capital One'') and Capstar Bank 
(``Capstar''); see also joint letter from Atlantic Capital Bank, 
Cobiz Bank, Cole Taylor Bank, Commerce Bank, N.A., East West Bank, 
First Business Bank, First National Bank of Pennsylvania, Heartland 
Financial USA, Inc., Old National Bancorp, Peoples Bancorp of North 
Carolina, Inc., Susquehanna Bank, The PrivateBank and Trust Co, The 
Savannah Bank, N.A., The Washington Trust Company, Trustmark 
National Bank, UMB Financial Corporation, Valley National Bank, 
Webster Bank NA, WesBanco Bank (``Regional Banks'') (general support 
for limitation to swaps connected to financial terms of the loan).
    \298\ See letter from Better Markets I.
---------------------------------------------------------------------------

    Other commenters, though, said that this limitation to swaps 
connected to the financial terms of the loan was inappropriate or 
inconsistent with the Dodd-Frank Act, and that any swap required by the 
loan agreement or required by the IDI as a matter of prudent lending 
should be covered by the exclusion.\299\ Some of the commenters arguing 
for the broader exclusion emphasized that the exclusion should be 
available for any swap with the lending IDI which reduces the 
borrower's risks, such as a commodity swap the borrower uses for 
hedging, because reduction of commodity price risks faced by the 
borrower also reduces the risk that the loan will not be repaid to the 
IDI.\300\ Commenters said that if the exclusion does not apply to swaps 
hedging the borrower's commodity price risks, then only IDIs that are 
able to create a separately capitalized affiliate will be able to offer 
commodity swaps (because section 716 of the Dodd-Frank Act limits the 
ability of IDIs to offer commodity swaps), thereby reducing the 
availability of commodity swaps to

[[Page 30621]]

borrowers that are smaller companies.\301\
---------------------------------------------------------------------------

    \299\ See letters from BOK dated February 18, 2011 (``BOK II''), 
FSR I, ISDA I, Midsize Banks, OCC Staff at 6 (noting that ``[l]oan 
underwriting criteria for community and mid-size banks * * * may 
require, as a condition of the loan, that the borrower be hedged 
against the commodity price risks incidental to its business'') and 
White & Case LLP (``White & Case'') and joint letter from Senator 
Stabenow and Representative Lucas.
    \300\ See letters from BOK II, FSR I, OCC Staff and White & 
Case.
    \301\ See letters from ABA I and BOK I. Other commenters 
addressed the relationship between the swap dealer definition and 
section 619 of the Dodd-Frank Act (the ``Volcker Rule''). See joint 
letter from Capital One, Fifth Third Bancorp and Regions Financial 
Corporation.
---------------------------------------------------------------------------

    Second, regarding timing, the proposed rule requested comment on 
whether this exclusion should apply only to swaps that are entered into 
contemporaneously with the IDI's origination of the loan (and if so, 
how ``contemporaneously'' should be defined for this purpose), or 
whether this exclusion also should apply to swaps entered into during 
part or all of the duration of the loan. In response, commenters said 
that the exclusion should apply to swaps entered into in anticipation 
of a loan or at any time during the loan term.\302\ Commenters said 
that application of the exclusion throughout the duration of the loan 
would give IDIs and borrowers flexibility as to when to fix interest 
rates in fixed/floating swaps relating to loans and would allow 
borrowers to make other hedging decisions over a longer time 
period.\303\ Commenters also said that loans such as construction 
loans, equipment loans and committed loan facilities may allow for 
draws of loan principal over an extended period of time, and that swaps 
entered into by the borrower and lending IDI through the course of such 
a loan should be covered by the exclusion.\304\
---------------------------------------------------------------------------

    \302\ See letters from BB&T I, B&F Capital I, BOK II, Capital 
One, Capstar, FSR I, Midsize Banks, Manufacturers and Traders Trust 
Company (``M&T'') dated June 3, 2011 (``M&T I'') and September 28, 
2011 (``M&T II''), Peoples Bank Co. (``Peoples Bank''), Regional 
Banks and White & Case.
    \303\ See letters from B&F Capital I, BOK II, Capital One, 
Capstar and M&T I and M&T II.
    \304\ See letters from FSR dated October 17, 2011 (``FSR VI''), 
M&T II and Wells Fargo Bank, N.A. (``Wells Fargo'') dated August 16, 
2011 (``Wells Fargo II'').
---------------------------------------------------------------------------

    Third, as to which transactions should be deemed ``loans'' for 
purposes of the exclusion, the proposal said that the exclusion should 
be available in connection with all transactions by which an IDI is a 
source of funds to a borrower, including, for example, loan 
syndications, participations and refinancings. Commenters agreed that 
the exclusion should be available for IDIs that are in a loan 
syndicate, purchasers of a loan, assignees of a loan or participants in 
a loan.\305\ On loan syndications and participations in particular, one 
commenter said that the exclusion should be available even if the 
notional amount of the swap is more than the amount of the loan tranche 
assigned to the IDI, so long as the swap notional amount is not more 
than the entire amount of the loan.\306\ Another commenter said that 
the exclusion should not be available if the IDI's participation in the 
loan drops below a minimum level (such as 20 percent) because such use 
of the exclusion by minimally-participating IDIs would invite 
abuse.\307\
---------------------------------------------------------------------------

    \305\ See letters from BB&T I, Midsize Banks, Regional Banks and 
White & Case; see also letter from Loan Market Association 
(providing background information on loan participations).
    \306\ See letter from Regional Banks.
    \307\ See letter from Better Markets I.
---------------------------------------------------------------------------

    Some commenters said that other types of transactions also should 
be treated as ``loans'' for purposes of the exclusion. The transactions 
cited by commenters in this regard include leases, letters of credit, 
financings documented as sales of financial assets, bank qualified tax 
exempt loans and bonds that are credit enhanced by an IDI.\308\ Other 
commenters said the exclusion should apply where entities related to an 
IDI provide financing, such as loans or financial asset purchases by 
bank-sponsored commercial paper conduits where the IDI provides 
committed liquidity,\309\ and transactions where a special purpose 
entity formed by an IDI is the source of financing and enters into the 
swap.\310\ Some commenters said the exclusion should encompass all 
transactions where an IDI facilitates a financing,\311\ or all 
extensions of credit by an IDI,\312\ or all transactions where an IDI 
provides risk mitigation to a borrower.\313\
---------------------------------------------------------------------------

    \308\ See letters from BB&T I, Capital One, FSR I, M&T I, 
Midsize Banks and Regional Banks.
    \309\ See letter from FSR I.
    \310\ See letter from Midsize Banks.
    \311\ See letters from Pacific Coast Bankers' Bancshares 
(``PCBB'') and Regional Banks.
    \312\ See letters from FSR I and Midsize Banks.
    \313\ See letter from PCBB.
---------------------------------------------------------------------------

    Fourth, with respect to the types of financial institutions that 
are eligible for the loan origination exclusion, three commenters said 
that IDIs, for purposes of this exclusion, encompass more than banks or 
savings associations with federally-insured deposits. The Farm Credit 
Council said the exclusion should be extended to Farm Credit System 
institutions because one of these institutions enters into interest 
rate swaps with borrowing customers identical in function to those 
offered by commercial banks and savings associations in connection with 
loans, and the institutions are subject to similar regulatory 
requirements and covered by a similar insurance regime.\314\ Another 
commenter said that the exclusion should be extended to other regulated 
financial institutions, such as insurers, so as not to create an 
unlevel playing field.\315\ And the Federal Home Loan Banks said that 
the exclusion should be available to them because they are subject to 
similar regulatory oversight and capital standards and engage in a 
similar function of extending credit as do commercial banks and savings 
associations.\316\ In addition, some commenters said the exclusion 
should be broadly construed as a general matter, to encourage 
competition in the swap market between smaller and larger banks and to 
increase borrowers' choice among potential swap providers.\317\
---------------------------------------------------------------------------

    \314\ Consequently, the Farm Credit Council argued, disallowing 
these institutions from using the exclusion would give commercial 
banks and savings associations a competitive advantage in 
agricultural lending. See letters from Farm Credit Council I and 
dated February 17, 2012 (``Farm Credit Council II''). Another 
commenter argued that, to the contrary, making Farm Credit System 
institutions eligible for the exclusion would confer an 
inappropriate competitive advantage on those institutions. See 
letter from ABA dated February 14, 2012 (``ABA II''). This commenter 
said that Farm Credit System institutions have certain advantages 
over other IDIs, and the commenter asserted that Farm Credit System 
institutions were left out of the statutory language of the 
exclusion in order that they would not receive additional 
competitive advantages. See id.
    \315\ See letter from NAIC.
    \316\ See letter from FHLB I. The Credit Union National 
Association said that the Federal Home Loan Banks should not be 
covered by the swap dealer definition because they do not enter into 
swaps for their own account as part of a regular business. See 
letter from CUNA.
    \317\ See letters from BB&T I, B&F Capital dated June 1, 2011 
(``B&F Capital II''), Capital One, Capstar, M&T I and Peoples Bank.
---------------------------------------------------------------------------

    Two commenters asked for clarification of the following technical 
points in the proposed rule: (i) Whether a swap would be covered by the 
exclusion even if it does not hedge all the risks under the loan, (ii) 
whether a swap that is within the exclusion could continue to be 
treated as covered by the exclusion by an IDI if the IDI transfers the 
loan, and (iii) whether an IDI should count swaps covered by the 
exclusion in determining if its dealing activity is above the de 
minimis thresholds.\318\ Another commenter asked whether an IDI with 
swaps that are covered by the exclusion could be a swap dealer based on 
other dealing activity.\319\ And others asked whether the exclusion 
would cover swaps used by an IDI to hedge its risks arising from a loan 
(i.e., a swap which the IDI enters into with a party other than the 
loan borrower).\320\
---------------------------------------------------------------------------

    \318\ See letters from FSR VI and Midsize Banks.
    \319\ See letter from Better Markets I.
    \320\ See letters from B&F Capital I, FSR I, ISDA I, M&T I and 
Midsize Banks.
---------------------------------------------------------------------------

3. Final Rule
    The CFTC believes that the extent of this exclusion should be 
determined by

[[Page 30622]]

the language of the statutory definition, which relates to an IDI that 
``offers to enter into a swap with a customer in connection with 
originating a loan with that customer.'' The expansive interpretation 
of the exclusion advanced by some commenters, however, would read the 
statute to exclude almost any swap that an IDI enters into with a loan 
customer. That is not the exclusion that was enacted. Instead, we 
interpret the statutory phrase ``enter into a swap with a customer in 
connection with originating a loan with that customer'' to mean that 
the swap is directly connected to the IDI's process of originating the 
loan to the customer.
    Because of the statute's direct reference to ``originating'' the 
loan, it would be inappropriate to construe the exclusion as applying 
to all swaps entered into between an IDI and a borrower at any time 
during the duration of the loan. If this were the intended scope of the 
statutory exclusion, there would be no reason for the text to focus on 
swaps in connection with ``originating'' a loan. The CFTC recognizes 
the concern expressed by commenters that: (i) there be flexibility 
regarding when the IDI and borrower enter into a swap relating to a 
loan, and (ii) the expectation when an IDI originates a loan with a 
customer is often that the customer will enter into a swap with the IDI 
when there is a subsequent advance, or a draw, of principal on the 
loan. We do not believe, however, that the statutory term 
``origination'' can reasonably be stretched to cover the entire term of 
every loan that an IDI makes to its customers. At some point, the 
temporal distance renders the link to loan origination too attenuated, 
and the risk of evasion too great, to support the exclusion. In order 
to balance these competing and conflicting considerations, the final 
rule applies the exclusion to any swap that otherwise meets the terms 
of the exclusion and is entered into no more than 90 days before or 180 
days after the date of execution of the loan agreement, or no more than 
90 days before or 180 days after the date of any transfer of principal 
to the borrower from the IDI (e.g., a draw of principal) pursuant to 
the loan, so long as the aggregate notional amount of the swaps in 
connection with the financial terms of the loan at any time is no more 
than the aggregate amount of the borrowings under the loan at that 
time.\321\
---------------------------------------------------------------------------

    \321\ We note that because the exclusion is available within the 
specified time period around the execution of the loan agreement and 
any draw of principal under the loan, any amendment, restructuring, 
extension or other modification of the loan will, in itself, neither 
preclude application of the exclusion nor expand application of the 
exclusion.
---------------------------------------------------------------------------

    Since a loan involves the repayment of funds to the IDI on 
particular terms, a swap that relates to those terms of repayment 
should be covered by the exclusion. In addition, we recognize that, as 
stated by commenters, requirements in an IDI's loan underwriting 
criteria relating to the borrower's financial stability are an 
important part of ensuring that loans are repaid.\322\ Therefore, the 
final rule modifies the proposed rule to provide that the exclusion 
applies to swaps between an IDI and a loan borrower that are connected 
to the financial terms of the loan, such as, for example, the loan's 
duration, interest rate, currency or principal amount, or that are 
required under the IDI's loan underwriting criteria to be in place as a 
condition of the loan in order to hedge commodity price risks 
incidental to the borrower's business.\323\ The first category of swaps 
generally serve to transform the financial terms of a loan for purposes 
of adjusting the borrower's exposure to certain risks directly related 
to the loan itself, such as risks arising from changes in interest 
rates or currency exchange rates. The second category of swaps mitigate 
risks faced by both the borrower and the lender, by reducing risks that 
the loan will not be repaid. Thus, both types of swaps are directly 
related to repayment of the loan. Although some commenters said that 
this exclusion should also apply to other types of swaps, we believe it 
would be inappropriate to construe this exclusion as encompassing all 
swaps that are connected to a borrower's other business activities, 
even if the loan agreement requires that the borrower enter into such 
swaps or otherwise refers to them.\324\ In contrast to a swap that 
transforms the financial terms of a loan or is required by the IDI's 
loan underwriting criteria to reduce the borrower's commodity price 
risks, other types of swaps serve a more general risk management 
purposes by reducing other risks related to the borrower or the loan. 
If the purpose of the exclusion were to cover the broad range of swaps 
cited by some commenters (such as all swaps reducing a borrower's 
business risks), then the terms of the statute limiting the exclusion 
to swaps that are ``in connection with originating a loan with that 
customer'' would be superfluous.\325\ To give effect to the statutory 
text, the exclusion is limited to a swap that is connected to the 
financial terms of the loan or is required by the IDI's loan 
underwriting criteria to to be in place as a condition of the loan in 
order to hedge commodity price risks incidental to the borrower's 
business.
---------------------------------------------------------------------------

    \322\ See letter from OCC Staff.
    \323\ The final rule provides that the second category of swaps 
must hedge a price risk related to a commodity other than an 
excluded commodity because if the price risk relates to an excluded 
commodity (such as an interest rate) the swap must be connected to 
the financial terms of the loan in order to be covered by the 
exclusion.
    \324\ On the other hand, there is no requirement that the loan 
agreement reference a swap in order for the swap to be excluded, if 
the swap otherwise qualifies for the exclusion.
    \325\ Also, we believe that the broader range of swaps serving 
general risk management purposes are more likely to involve concerns 
regarding market transparency and appropriate business conduct 
practices addressed by swap dealer regulation than are the narrower 
range of swaps that are encompassed by the exclusion.
---------------------------------------------------------------------------

    Regarding the types of transactions that will be treated as a 
``loan'' for purposes of the exclusion, courts have defined the term 
``loan'' in other statutory contexts based on the settled meaning of 
the term under common law. This definition encompasses any contract by 
which one party transfers a defined quantity of money and the other 
party agrees to repay the sum transferred at a later date.\326\ Rather 
than examine at this time the many particularized examples of financing 
transactions cited by some commenters, the term ``loan'' for purposes 
of this exclusion should be interpreted in accordance with this settled 
legal meaning.\327\
---------------------------------------------------------------------------

    \326\ See, e.g., In Re Renshaw, 222 F.3d 82, 88 (2d Cir. 2000) 
(``Because Congress did not define the term ``loan'' for [11 U.S.C.] 
Sec.  523(a)(8), we must interpret it according to its settled 
meaning under common law. The classic definition of a loan [is] * * 
* as follows: To constitute a loan there must be (i) a contract, 
whereby (ii) one party transfers a defined quantity of money, goods, 
or services, to another, and (iii) the other party agrees to pay for 
the sum or items transferred at a later date.'') (citing In re Grand 
Union Co., 219 F. 353, 356 (2d Cir. 1914)).
    \327\ The final rule adopts provisions from the proposed rule 
that, in order to prevent evasion, the statutory exclusion does not 
apply where the IDI originates a ``sham'' loan; or the purported 
``loan'' is actually a synthetic loan such as a loan credit default 
swap or loan total return swap. See CFTC Regulation Sec.  
1.3(ggg)(5)(iii).
---------------------------------------------------------------------------

    As stated in the proposed rule, this exclusion is available to all 
IDIs that are a source of a transfer of money to a borrower pursuant to 
a loan. The final rule adopts provisions from the proposed rule that 
the exclusion is available to an IDI that is a source of money by being 
part of a loan syndicate, being an assignee of a loan, obtaining a 
participation in a loan, or purchasing a loan.\328\ However, the 
proposed rule did

[[Page 30623]]

not state explicitly how the notional amount of a swap subject to the 
exclusion must relate to the amount of money provided by an IDI that is 
in a loan syndicate or is an assignee of, participant in or purchaser 
of a loan. In this regard, some commenters said that a borrower and the 
IDIs in a lending syndicate need flexibility to allocate responsibility 
for the swap(s) related to the loan as they may agree.\329\ We believe 
that, to allow for this flexibility, the exclusion may apply to a swap 
(which is otherwise covered by the exclusion) even if the notional 
amount of the swap is different from the amount of the loan tranche 
assigned to the IDI. However, we also agree with a commenter that the 
IDI should have a substantial participation in the loan.\330\ The 
requirement of substantial participation would prevent an IDI from 
applying the exclusion where the IDI makes minimal lending commitments 
in multiple loan syndicates where it offers swaps, causing its swap 
activity to be far out of proportion to its loan activity.\331\
---------------------------------------------------------------------------

    \328\ See CFTC Regulation Sec.  1.3(ggg)(5)(ii). As is also 
stated in the Proposing Release, if an IDI were to transfer its 
participation in a loan to a non-IDI, then the non-IDI would not be 
able to claim this exclusion, regardless of the terms of the loan or 
the manner of the transfer. Similarly, a non-IDI that is part of a 
loan syndicate with IDIs would not be able to claim the exclusion.
    \329\ See, e.g., letter from Regional Banks.
    \330\ See letter from Better Markets I. This commenter suggested 
a minimal threshold of at least 20 percent of the loan. However, we 
believe that a 10 percent commitment constitutes a substantial 
participation in the loan which supports offering of a swap up to 
the loan's full amount.
    \331\ For example, an IDI could act as a 0.1 percent participant 
in one hundred different loans in order to serve as the sole swap 
counterparty to the borrowers for hedging the borrowers' interest 
rate risk on the loans. Thus, by lending or committing to lend $100 
million, the IDI could apply the exclusion to swaps with an 
aggregate notional amount of $100 billion.
---------------------------------------------------------------------------

    Therefore, the final rule includes a provision that the exclusion 
may apply regardless of whether the notional amount of the swap is the 
same as the amount of the loan, but only if the IDI is the sole source 
of funds under the loan or is committed to be, under the applicable 
loan agreements, the source of at least 10 percent of the maximum 
principal amount under the loan.\332\ If the IDI does not meet this 10 
percent threshold, the final rule provides that the exclusion may apply 
only if the aggregate notional amount of all the IDI's swaps with the 
customer related to the financial terms of the loan is no more than the 
amount lent by the IDI to the customer.\333\ We also note that, in all 
cases, application of the exclusion requires that the aggregate 
notional amount of all swaps entered into by the borrower with any 
person in connection with the financial terms of the loan at any time 
is not more than the aggregate principal amount outstanding under the 
loan at that time.\334\
---------------------------------------------------------------------------

    \332\ See CFTC Regulation Sec.  1.3(ggg)(5)(i)(D)(1) and (2).
    \333\ See CFTC Regulation Sec.  1.3(ggg)(5)(i)(D)(3).
    \334\ See CFTC Regulation Sec.  1.3(ggg)(5)(i)(E). Paragraphs 
(D)(3) and (E) of this regulation refer to all swaps ``in connection 
with the financial terms of the loan'' in order to clarify that only 
such swaps are relevant in this regard. For example, if the IDI were 
to enter into a swap with the customer that is not in connection 
with the loan's financial terms, the swap would not be relevant 
because the exclusion would not apply to the swap.
---------------------------------------------------------------------------

    We also reiterate the interpretation in the Proposing Release that 
the word ``offer'' in this exclusion includes scenarios where the IDI 
requires the customer to enter into a swap, or where the customer asks 
the IDI to enter into a swap, specifically in connection with a loan 
made by that IDI.
    We also continue to emphasize, as stated in the Proposing Release, 
that the statutory language of the exclusion limits its availability to 
only IDIs as defined in the statute. Regarding some commenters' 
statements about the competitive effect of this interpretation of the 
term ``insured depository institution,'' we believe that the scope of 
application of the swap dealer definition to various entities should be 
treated in the de minimis exception, which is available to all persons.
    In order to provide clarification in response to certain technical 
questions raised by commenters, we note that whether a swap hedges all 
of the risk, or only some of the risk, of a loan is not relevant to 
application of the exclusion. Nor is it relevant to the exclusion if 
the IDI later transfers or terminates the loan in connection with which 
the swap was entered into, so long as the swap otherwise qualifies for 
the exclusion and the loan was originated in good faith and was not a 
sham.\335\ Further, swaps that are covered by the exclusion should not 
be considered in determining if an IDI exceeds the de minimis level of 
swap dealing activity, because the statute provides that swaps covered 
by the exclusion should not be considered in determining if an IDI is a 
swap dealer, and the de minimis exception provides that it considers 
the ``quantity of [a person's] swap dealing.'' \336\ The application of 
the exclusion to swaps entered into by an IDI in connection with the 
origination of loans, however, does not mean that the IDI could not be 
a swap dealer because of other of the IDI's activities that constitute 
swap dealing. Regarding swaps used by an IDI to hedge or lay off its 
risks arising from a loan, we do not believe it is appropriate to treat 
such swaps as covered by the exclusion, because the statute explicitly 
limits the exclusion to swaps ``with a customer,'' which such hedging 
swaps are not. However, a swap that an IDI enters into for the purpose 
of hedging or laying off the risk of a swap that is covered by the IDI 
exclusion will not be considered in the de minimis determination, or 
otherwise in evaluating whether the IDI is covered by the swap dealer 
definition.\337\
---------------------------------------------------------------------------

    \335\ On the other hand, if the IDI were to transfer the swap 
(but not the loan) to another IDI, and the IDI that is the 
transferee of the swap is not a source of money to the borrower 
under the loan, then the transferee IDI would not be able to apply 
the exclusion to the swap.
    \336\ See CEA sections 1a(49)(A) and 1a(49)(D), 7 U.S.C. 
1a(49)(A) and 1a(49)(D).
    \337\ An IDI that is seeking out swap counterparties to enter 
into swaps in order to hedge or lay off the risk of a swap that is 
subject to the IDI exclusion would generally not be accommodating 
demand for swaps or facilitating interest in swaps.
---------------------------------------------------------------------------

    Last, we believe it is appropriate to require that an IDI claiming 
the exclusion report its swaps that are covered by the exclusion to a 
swap data repository (``SDR''). This requirement is consistent with the 
prevailing practice that IDIs handle the documentation of loans made to 
borrowers, and will provide for consistent reporting of swaps that are 
covered by the exclusion, thereby allowing the CFTC and other 
regulators to monitor the use of the exclusion.
    In sum, the final rule balances the need for flexibility in 
response to existing lending practices, consistent with the constraints 
imposed by the statutory text as enacted, against the risk of 
establishing a gap in the regulatory framework enacted in Title 
VII.\338\ It provides that the exclusion may be claimed by a person 
that meets the following conditions: (i) The person is an IDI; (ii) the 
IDI enters into a swap with the borrower that does not extend beyond 
the termination of the loan; (iii) the swap is connected to the 
financial terms of the loan or is required by the IDI's loan 
underwriting criteria to to be in place as a condition of the loan in 
order to hedge commodity price risks incidental to the borrower's 
business; (iv) the loan is within the common law meaning of ``loan'' 
and it is not a sham or a synthetic loan; (v) the IDI is the source of 
money to the borrower in connection with the loan either directly, or 
(so long as the IDI is the source of at least 10 percent of the entire 
amount of the loan) through syndication, participation, assignment, 
purchase, refinancing or otherwise; (vi) the IDI

[[Page 30624]]

enters into the swap with the borrower within 90 days before or 180 
days after the date the execution of the loan agreement, or within 90 
days before or 180 days after any transfer of principal to the borrower 
from the IDI pursuant to the loan; (vii) the aggregate notional amount 
of all swaps entered into by the borrower with all persons in 
connection with the financial terms of the loan at any time is not more 
than the aggregate amount of the borrowings under the loan at that 
time; and (viii) the IDI agrees to report the swap to an SDR.
---------------------------------------------------------------------------

    \338\ The final rule text in CFTC Regulation Sec.  
1.3(ggg)(5)(i) has been revised to conform the text of the rule to 
the statutory provision which refers to ``an insured depository 
institution [that] * * * enter[s] into a swap with a customer in 
connection with originating a loan with that customer.'' See CEA 
Sec.  1a(49)(A), 7 U.S.C. 1a(49)(A)
---------------------------------------------------------------------------

    An IDI that enters into swaps that do not meet these conditions, 
and thus do not qualify for the statutory exclusion, is not necessarily 
required to register as a swap dealer. Rather, the IDI would apply the 
statutory definition and the provisions of the rule (taking into 
account the applicable interpretive guidance set forth in this Adopting 
Release), solely with respect to its swaps that are not subject to the 
IDI exclusion, in order to determine whether it is engaged in swap 
dealing activity that exceeds the de minimis threshold.

C. Application of Dealer Definitions to Legal Persons and to Inter-
Affiliate Swaps and Security-Based Swaps

1. Proposed Approach and Commenters' Views
    In the Proposing Release, the Commissions preliminarily concluded 
that designation as a dealer would apply on an entity-level basis 
(rather than to a trading desk or other business unit that is not 
organized as a separate legal person), and that an affiliated group of 
legal persons could include more than one dealer.\339\ The Proposing 
Release also stated that the dealer analysis should consider the 
economic reality of swaps and security-based swaps between affiliates, 
and preliminarily noted that swaps or security-based swaps ``between 
persons under common control may not involve the interaction with 
unaffiliated persons that we believe is a hallmark of the elements of 
the definitions that refer to holding oneself out as a dealer or being 
commonly known as a dealer.'' \340\
---------------------------------------------------------------------------

    \339\ See Proposing Release, 75 FR at 80183.
    \340\ Id. The Proposing Release further noted that sections 
721(c) and 761(b)(3) give the Commissions anti-evasion authority, to 
the extent that an entity were to seek to use transactions between 
persons under common control to avoid one of the dealer definitions. 
See id. (erroneously referring to section 721(c) as section 
721(b)(3).
---------------------------------------------------------------------------

    Commenters supported the view that swaps and security-based swaps 
among affiliates should be excluded from the dealer analysis.\341\ A 
number of commenters took the view that the dealer definitions should 
not apply when there is common control between counterparties, or when 
common control is combined with the consolidation of financial 
statements.\342\ Some commenters suggested that this interpretation 
regarding the scope of the dealer definitions should incorporate 
concepts of affiliation that are found in other statutory and 
regulatory provisions.\343\ Several commenters also opposed the 
suggestion (raised as part of the Proposing Release's request for 
comments) that this interpretation be limited to transactions among 
wholly owned subsidiaries.\344\
---------------------------------------------------------------------------

    \341\ See, e.g., letters from API I, COPE I, ISDA I, Midsize 
Banks, ONEOK, Inc. (``ONEOK'') and Peabody.
     Several commenters explained the widespread use of central 
hedging desks to allocate risk within affiliate groups or to gather 
risk from within a group and lay that risk off on the market. See, 
e.g., letters from EEI/EPSA, Kraft Foods Inc. (``Kraft''), MetLife 
and Prudential Financial, Inc. (``Prudential'') dated February 17, 
2011 (``Prudential I'').
     Some commenters particularly stated that the use of a single 
entity to face the market on behalf of an affiliate group had 
several risk-reducing and efficiency-enhancing benefits, and that 
those benefits would be lost if the dealer definitions were to lead 
corporate groups to avoid using central trading desks and instead 
require each affiliate to face the market as an independent end-
user. See letters from FSR I, Philip Morris International Inc. 
(``Philip Morris''), Shell Trading dated June 3, 2011 (``Shell 
Trading II'') and Utility Group, and joint letter from ABA 
Securities Association, American Council of Life Insurers 
(``ACLI''), FSR, Futures Industry Association (``FIA''), Institute 
of International Bankers, ISDA and SIFMA (``Financial 
Associations'').
     Some commenters also stated that legislative history suggested 
that Congress did not intend that the dealer definition capture 
transactions involving the use of an affiliate to hedge commercial 
risk. See letters from CDEU and Prudential I.
    \342\ See letters from CDEU (common control), Financial 
Associations (common control and consolidation), MetLife 
(consolidation), ONEOK (common control, evaluated based on whether 
the trading interests of the entities are aligned) and Prudential I 
(citing CFTC letter interpretation regarding common control).
    \343\ See, e.g., letters from EDF Trading (proposing definition 
from regulations promulgated by the Federal Energy Regulatory 
Commission) and Peabody (proposing definition of ``affiliate'' used 
in federal securities laws) and joint letter from the Bank of Tokyo-
Mitsubishi UFJ, Ltd., Mizuho Corporate Bank, Ltd. and Sumitomo 
Mitsui Banking Corp. (suggesting use of control definition in Bank 
Holding Company Act).
    \344\ See, e.g., letters from Kraft and ONEOK.
---------------------------------------------------------------------------

2. Final Interpretation and Rule
a. Application to Legal Persons
    Consistent with the Proposing Release, the Commissions interpret 
``person'' as used in the swap dealer and security-based swap dealer 
definitions to refer to a particular legal person. Accordingly, the 
dealer definitions will apply to the particular legal person performing 
the dealing activity, even if that person's dealing activity is limited 
to a trading desk or discrete business unit,\345\ unless the person is 
able to take advantage of a limited designation as a dealer.\346\
---------------------------------------------------------------------------

    \345\ Within an affiliated group of companies, however, only 
those legal persons that engage in dealing activities will be 
designated as dealers; that designation will not be imputed to other 
non-dealer affiliates or to the group as a whole. A single affiliate 
group may, however, have multiple swap or security-based swap 
dealers.
    \346\ Limited designation as a dealer is addressed in more 
detail below in part II.E.
---------------------------------------------------------------------------

b. Application to Inter-Affiliate Swaps and Security-Based Swaps
    The final rules codify exclusions from the dealer definitions for a 
person's swap or security-based swap activities with certain 
affiliates.\347\ These rules are consistent with the Proposing 
Release's recognition of the need to consider the economic reality of 
any swaps or security-based swaps that a person enters into with 
affiliates. Market participants may enter into such inter-affiliate 
swaps or security-based swaps for a variety of purposes, such as to 
allocate risk within a corporate group or to transfer risks within a 
corporate group to a central hedging or treasury entity.
---------------------------------------------------------------------------

    \347\ See CFTC Regulation Sec.  1.3(ggg)(6)(i); Exchange Act 
rule 3a71-1(d). A person's market-facing swap or security-based swap 
activity may still cause that person to be a dealer, even if that 
market-facing activity is linked to the inter-affiliate activity, to 
the extent that the market-facing activity satisfies the dealer 
definition. However, a person's market-facing swap activity for 
hedging purposes as defined in CFTC Regulation Sec.  
1.3(ggg)(6)(iii) would not cause that person to be a dealer.
---------------------------------------------------------------------------

    Under the final rules, the dealer analysis will not apply to swaps 
and security-based swaps between majority-owned affiliates.\348\ When 
the economic interests of those affiliates are aligned adequately--as 
would be found in the case of majority-ownership--such swaps and 
security-based swaps serve to allocate or transfer risks within an 
affiliated group, rather than to move those risks out of the group to 
an unaffiliated third party. For this reason, and as contemplated by 
the Proposing Release,\349\ we do not believe that such

[[Page 30625]]

swaps and security-based swaps involve the interaction with 
unaffiliated persons to which dealer regulation is intended to apply.
---------------------------------------------------------------------------

    \348\ See CFTC Regulation Sec.  1.3(ggg)(6)(i); Exchange Act 
rule 3a71-1(d)(1). For the purposes of these rules, the 
counterparties are majority-owned affiliates if one party directly 
or indirectly holds a majority ownership interest in the other, or 
if a third party directly or indirectly holds a majority interest in 
both, based on holding a majority of the equity securities of an 
entity, or the right to receive upon dissolution or the contribution 
of a majority of the capital of a partnership. See CFTC Regulation 
Sec.  1.3(ggg)(6)(i); Exchange Act rule 3a71-1(d)(2).
    \349\ See Proposing Release, 75 FR at 80183 (noting that swaps 
or security-based swaps between affiliates ``may not involve the 
interaction with unaffiliated persons that we believe is a hallmark 
of the elements of the definitions that refer to holding oneself out 
as a dealer or being commonly known as a dealer'').
---------------------------------------------------------------------------

    The standard in the final rules differs from the standard suggested 
by the Proposing Release, which alluded to affiliates as legal persons 
under ``common control.'' This change is based on our further 
consideration of the issue, including consideration of comments that an 
inter-affiliate exclusion should be available when common control is 
combined with the consolidation of financial statements. Although we 
are not including a requirement that financial statements be 
consolidated--as we do not believe that the scope of this exclusion 
should be exposed to the risk of future changes in accounting 
standards--in our view a majority ownership standard is generally 
consistent with consolidation under GAAP.\350\ Absent majority 
ownership, we cannot be confident that there would be an alignment of 
economic interests that is sufficient to eliminate the concerns that 
underpin dealer regulation.
---------------------------------------------------------------------------

    \350\ See FASB ASC Section 810-10-25, Consolidation--Overall--
Recognition (stating that consolidation is appropriate if a 
reporting entity has a controlling financial interest in another 
entity and a specific scope exception does not apply).
---------------------------------------------------------------------------

    In taking this approach, we have also considered alternatives 
suggested by commenters. For example, while one commenter suggested 
that we adopt a definition of ``affiliate'' as used in the securities 
laws,\351\ we believe that such an approach would be too broad for the 
purpose of this exclusion from dealing activity, given that common 
control by itself does not ensure that two entities' economic interests 
are sufficiently aligned.\352\
---------------------------------------------------------------------------

    \351\ See letter from Peabody. The commenter did not specify 
which definition of ``affiliate'' in the securities laws it was 
proposing. For example, Rule 405 of the Securities Act of 1933 
defines affiliate in terms of common control, see 17 CFR 230.405, 
and Section 20(a) of the Exchange Act takes a similar approach. The 
Investment Company Act of 1940 (``ICA'') defines affiliate to 
include entities with a common ownership interest as low as 5 
percent, ICA section 2(a)(3). Two other commenters proposed using a 
common control standard, perhaps also in reference to the Rule 405 
definition of ``affiliate.''
    \352\ The definitions of ``affiliate'' and ``control'' found in 
Rule 405 and other securities law provisions are appropriate in the 
context of the prophylactic and remedial provisions in which they 
are found. Rule 405, for example, uses the terms ``affiliate'' and 
``control'' to identify those persons that have the power to effect 
registration of an issuer's securities, and the broad definitions 
ensure that the persons with that power actually fulfill their 
obligation to do so. By comparison, the exclusion of inter-affiliate 
swaps and security-based swaps from the dealer analysis should be 
more tightly focused to address situations in which counterparties 
have similar economic interests.
     Another commenter noted the definition of ``affiliate'' found 
in certain Federal Energy Regulation Commission regulations--which 
define ``affiliate'' in terms of a ten percent or five percent 
common ownership interest. See letter from EDF Trading. Those 
relatively low ownership thresholds, however, are intended to 
address different concerns regarding collusion and cross-
subsidization, and do not appear appropriate for an interpretation 
that has the potential to reduce the counterparty and market 
protections provided by Title VII. See 18 CFR sections 35.36(a)(9), 
35.39, 366.2(b), 366.3.
---------------------------------------------------------------------------

c. Application to Cooperatives
    Similar considerations apply, in certain situations, to cooperative 
entities that enter into swaps with their members in order to allocate 
risk between the members and the cooperative. Commenters identified two 
general types of such cooperatives--``cooperative associations of 
producers'' as defined in section 1a(14) of the CEA \353\ and 
cooperative financial entities such as Farm Credit System institutions 
and Federal Home Loan Banks.\354\ As is the case for affiliated groups 
of corporate entities, we believe that when one of these cooperatives 
enters into a swap with one of its members,\355\ the swap serves to 
allocate or transfer risks within an affiliated group, rather than to 
move those risks from the group to an unaffiliated third party, so long 
as the cooperative adheres to certain risk management practices.
---------------------------------------------------------------------------

    \353\ 7 U.S.C. 1a(14). A cooperative association of producers is 
at least 75 percent owned or controlled, directly or indirectly, by 
producers of agricultural products and must comply with the Capper-
Volstead Act (referred to in the CEA as the Act of February 18, 
1922, 7 U.S.C. 291 and 292). See letters from Land O'Lakes II, NCFC 
I and NMPF.
    \354\ See letters from Farm Credit Council I and FHLB I. The NRU 
CFC qualifies as a cooperative financial entity, but we understand 
that it does not enter into a significant amount of swaps with its 
members; rather, it enters into swaps with unaffiliated third 
parties. See letter from NRU CFC I and meeting with NRU CFC on 
January 13, 2011.
    \355\ The term ``cooperative association of producers'' also 
includes any organization acting for a group of such associations 
and owned or controlled by such associations. See CEA section 
1a(14), 7 U.S.C. 1a(14). For a cooperative association of producers 
that is acting for and owned or controlled by such associations, we 
believe that this conclusion applies to any swap between such 
cooperative association of producers and any cooperative association 
of producers that is a member of it, and any producer that is a 
member of any such cooperative association of producers that is 
itself a member of the first cooperative association of producers. 
See CFTC Regulation Sec.  1.3(ggg)(6)(ii)(C).
     However, we do not believe that this conclusion applies to any 
security-based swap that a cooperative association of producers may 
enter into, nor does it apply to any swap related to a non-physical 
commodity (such as a rate swap). For this reason, the exclusion for 
cooperative associations of producers is limited to swaps that are 
primarily based on a commodity that is not an excluded commodity. 
See CFTC Regulation Sec.  1.3(ggg)(6)(ii)(A)(3). The term ``excluded 
commodity'' is defined in CEA section 1a(19), 7 U.S.C. 1a(19).
---------------------------------------------------------------------------

    Accordingly, the final rules specifically provide that the dealer 
analysis excludes swaps between a cooperative and its members, so long 
as the swaps in question are reported to the relevant SDR by the 
cooperative and are subject to policies and procedures of the 
cooperative which ensure that it monitors and manages the risk of such 
swaps.\356\ The final rules define the term ``cooperative'' to include 
cooperative associations of producers and any entity chartered under 
Federal law as a cooperative and predominantly engaged in activities 
that are financial in nature.\357\ The cooperatives covered by this 
relief are subject to provisions of Federal law providing for their 
cooperative purpose. Cooperative associations of producers have been 
recognized since the passage of the Capper-Volstead Act as being 
permitted to engage in certain cooperative activities without violating 
antitrust laws.\358\ Cooperative financial institutions such as the 
Farm Credit System institutions and Federal Home Loan Banks are 
chartered under Federal laws that limit their membership and require 
that they serve certain public purposes.\359\
---------------------------------------------------------------------------

    \356\ See CFTC Regulation Sec.  1.3(ggg)(6)(ii). To be clear, 
these cooperatives are not excluded from the dealer definitions. See 
part II.A.6, supra. Rather, swaps between a cooperative and its 
members (and swaps that a cooperative enters into to hedge or lay 
off the risk of such swaps) are excluded from the dealer analysis. 
If a cooperative were to engage in other swap activities that are 
covered by, and not otherwise excluded from, the statutory 
definition of the term ``swap dealer,'' then it would be required to 
register as a swap dealer.
    \357\ See CFTC Regulation Sec.  1.3(ggg)(6)(ii)(B).
    \358\ See Capper-Volstead Act section 1, 7 U.S.C. 291.
    \359\ See Farm Credit Act of 1971, 12 U.S.C. 2001 et seq. and 
Federal Home Loan Bank Act, 12 U.S.C. 1421 et seq.
---------------------------------------------------------------------------

    We are aware that other persons commented that their swap 
activities should be excluded from the dealer analysis because they use 
swaps in connection with a cooperative or non-profit purpose, or 
because they aggregate demand for swaps arising from numerous small 
entities.\360\ However, the key distinction drawn in granting this 
relief is that cooperatives covered by the exclusion enter into swaps 
with their members in order to allocate risk between the members and

[[Page 30626]]

the cooperative. By contrast, the other entities noted above enter into 
swaps with unaffiliated parties in order to transfer risks between 
unaffiliated parties.\361\ As noted above, the Commissions believe that 
the contemplated scope of the statutory definitions does not include 
instances where a person's swap activities transfer risk within an 
affiliated group, but does extend to activities that create legal 
relationships that transfer risk between unaffiliated parties. Thus, it 
is appropriate that the dealer analysis exclude swaps between a 
cooperative and its members, but such analysis should include swaps 
between a cooperative or other aggregator and unaffiliated persons.
---------------------------------------------------------------------------

    \360\ See letter from NFPEEU (not-for-profit power utilities, 
electric cooperatives and related persons); letters from Farmers' 
Associations, NGFA I and NMPF (referring to private companies that 
serve as aggregators for swaps in agricultural commodities or 
otherwise offer swaps for agricultural risk management); and letter 
from Northland Energy (small energy firm that aggregates demand for 
swaps from small energy retailers and consumers).
    \361\ See, e.g., letter from NFPEEU (not-for-profit power 
utilities and electric cooperatives generally enter into swaps 
between themselves, with large industrial consumers, and a wide 
range of other counterparties). Indeed, the Dodd-Frank Act permits 
the CFTC to exempt agreements, contracts or transactions between 
entities described in section 201(f) of the Federal Power Act, such 
as certain not-for-profit power utilities and electric cooperatives. 
See section 722(f) of the Dodd-Frank Act. As noted above, a 
coalition of not-for-profit power utilities and electric 
cooperatives has advised that it plans to submit a request for the 
exemption contemplated by section 722(f) of the Dodd-Frank Act. See 
note 295 supra.
---------------------------------------------------------------------------

D. De Minimis Exception

1. Proposed Approach
    The Dodd-Frank Act's definitions of ``swap dealer'' and ``security-
based swap dealer'' require that the Commissions exempt from dealer 
designation any entity ``that engages in a de minimis quantity'' of 
dealing ``in connection with transactions with or on behalf of 
customers.'' The statutory definitions further require the Commissions 
to ``promulgate regulations to establish factors with respect to the 
making of any determination to exempt.'' \362\
---------------------------------------------------------------------------

    \362\ CEA section 1a(49)(D), 7 U.S.C. 1a(49)(D); Exchange Act 
section 3(a)(71)(D), 15 U.S.C. 78c(a)(71)(D).
---------------------------------------------------------------------------

    In the Proposing Release, we preliminarily concluded that the de 
minimis exception ``should be interpreted to address amounts of dealing 
activity that are sufficiently small that they do not warrant 
registration to address concerns implicated by the regulations 
governing swap dealers and security-based swap dealers. In other words, 
the exception should apply only when an entity's dealing activity is so 
minimal that applying dealer regulations to the entity would not be 
warranted.'' \363\ In taking this view, we rejected the suggestion that 
the de minimis exception should compare a person's swap or security-
based swap dealing activities to the person's non-dealing 
activities.\364\
---------------------------------------------------------------------------

    \363\ Proposing Release, 75 FR at 80179 (footnote omitted).
    \364\ See id. at 80179-80.
---------------------------------------------------------------------------

    At the same time, we recognized that this proposed approach did not 
appear to ``readily translate into objective criteria.'' We further 
recognized that a range of alternative approaches may be reasonable, 
and we solicited comment as to what factors should be used to implement 
the exception.\365\
---------------------------------------------------------------------------

    \365\ See id. at 80180.
---------------------------------------------------------------------------

    The proposed de minimis exception was comprised of three factors, 
all of which a person would have had to satisfy to avail itself of the 
exception.\366\ The first proposed factor would have limited the 
aggregate effective amount, measured on a gross basis, of the swaps or 
security-based swaps that a person entered into over the prior 12 
months in connection with its dealing activities to $100 million \367\ 
(or $25 million with regard to counterparties that are ``special 
entities'').\368\
---------------------------------------------------------------------------

    \366\ Under the proposal, the factors would consider a person's 
swap or security-based swap dealing activity as a whole, rather than 
separately considering different types of swaps or security-based 
swaps. See Proposing Release, 75 FR at 80181.
    \367\ See proposed Exchange Act rule 3a71-2(a). The proposed 
standard reflected our understanding that in general the notional 
size of a small swap or security-based swap is $5 million or less, 
and that the proposed threshold would reflect 20 instruments of that 
size. The standard also sought to reflect the customer protection 
issues implicated by swaps and security-based swaps. See Proposing 
Release, 75 FR at 80180.
    The proposed notional threshold would not consider the market 
risk offsets associated with combining long and short positions. In 
addition, the proposed notional threshold would not account for the 
amount of collateral held or posted by the entity, or other risk 
mitigating factors. See id.
    \368\ See proposed Exchange Act rule 3a71-2(a). As set forth by 
the statutory business conduct rules applicable to security-based 
swap dealers (as set forth in Exchange Act section 15F(h)(2)(C)), 
``special entity'' refers to: Federal agencies; States, State 
agencies and political subdivisions (including cities, counties and 
municipalities); ``employee benefit plans'' as defined under the 
Employee Retirement Income Security Act of 1974 (``ERISA''); 
``governmental plans'' as defined under ERISA; and endowments. Title 
VII imposes additional business conduct requirements on security-
based swap dealers in connection with special entities. See CEA 
sections 4s(h)(2), 4s(h)(4), 4s(h)(5); Exchange Act section 
15F(h)(2), (4), (5).
---------------------------------------------------------------------------

    The second proposed factor would have limited a person's swap or 
security-based swap dealing activity to no more than 15 counterparties 
over the prior 12 months (while counting counterparties that are 
members of an affiliated group as one counterparty for these purposes). 
The final proposed factor would have limited a person's dealing 
activity to no more than 20 swaps or security-based swaps over the 
prior 12 months (without counting certain amendments as new swaps or 
security-based swaps).
2. Commenters' Views
a. Basis for the Exception
    Some commenters sought to link the de minimis exception to systemic 
risk criteria by taking the position that a person should have to 
register as a dealer only if its dealing activities pose systemic 
significance.\369\ One commenter specifically objected to the position 
in the Proposing Release that the de minimis exception should take into 
account customer protection principles.\370\ On the other hand, one 
commenter supported the rejection of a risk-based de minimis test.\371\
---------------------------------------------------------------------------

    \369\ See, e.g., letters from CDEU, MFX II, NCGA/NGSA II and 
SIFMA--Regional Dealers Derivatives Committee (``SIFMA--Regional 
Dealers'').
    \370\ See letter from WGCEF I (arguing that basing the exception 
on customer protection principles would be contrary to the statutory 
framework, given that only ECPs are eligible to participate in off-
exchange swap transactions).
    \371\ See letter from Better Markets I.
---------------------------------------------------------------------------

    Some commenters argued that the de minimis test should account for 
proportionality criteria that would excuse entities whose dealing 
activity is relatively minor compared to their other activities.\372\
---------------------------------------------------------------------------

    \372\ See, e.g., letters from FHLB I, IECA-Credit I, NCGA/NGSA 
I, NRG Energy, Peabody and WGCEF I. One commenter said the 
proportionality criteria should also consider an entity's activities 
with respect to the physical commodity underlying its swaps. See 
letter from NCGA/NGSA I. But see letter from Better Markets I 
(supporting rejection of a proportionality test). Some commenters 
suggested more than one alternative approach.
---------------------------------------------------------------------------

b. Significance of ``Customer'' Language
    One commenter took the position that the language within the de 
minimis exception that specifically referred to ``transactions with or 
on behalf of customers'' meant that the exception should be available 
only for persons who limit their swaps or security-based swaps to those 
that are entered into with or on behalf of customers.\373\ Other 
commenters posited the opposite view that the ``customer'' language 
should be read to mean that a person's dealing activities with 
counterparties other than customers may be disregarded for purposes of 
the exception (i.e., non-customer transactions would not count against 
the de minimis thresholds).\374\ Some commenters argued that

[[Page 30627]]

transactions entered into in a fiduciary capacity should be disregarded 
for purposes of the exception.\375\ One commenter questioned the 
proposal's use of the term ``counterparty'' in lieu of the statutory 
term ``customer.'' \376\
---------------------------------------------------------------------------

    \373\ See letter from Better Markets I. Another commenter said 
that the ``customer'' language serves to emphasize that the de 
minimis exception is available to entities that provide swaps to 
customers. See letter from NGFA I.
    \374\ See letters from ISDA I, Vitol and WGCEF I. Another 
commenter said that the use of the term ``customer'' indicates that 
all transactions with physical commodity customers should be 
disregarded in determining if a person is a dealer. See letter from 
EDF Trading.
    \375\ See, e.g., letter from FSR I.
    \376\ See letter from Vitol (suggesting that the proposed 
language meant that dealing activity involved ``customers'' but not 
``counterparties'').
---------------------------------------------------------------------------

c. Proposed Tests and Thresholds
    Commenters criticized the proposed de minimis thresholds in a 
variety of ways. These included arguments that the proposed thresholds 
were inappropriately low,\377\ would harm end-users by reducing the 
number of entities willing to enter into low-value swaps and security-
based swaps,\378\ would be unjustified on a cost-benefit basis,\379\ 
and were disproportionately low compared to the activities of 
recognized dealers.\380\ Other commenters said the de minimis 
thresholds should be set at a level to allow entities to engage in a 
meaningful amount of customer-facing swaps or security-based swaps 
without being required to register as dealers.\381\
---------------------------------------------------------------------------

    \377\ See, e.g., letters from API I, CDEU, DFA, EDF Trading, 
Farm Credit Council I, Growmark, Land O'Lakes dated January 13, 2011 
(``Land O'Lakes I''), Midsize Banks, NCFC I, NCGA/NGSA II, New York 
City Bar Association--Committee on Futures and Derivatives 
Regulation (``NYCBA Committee''), Northland Energy, NRG Energy, 
Regional Banks and SIFMA--Regional Dealers. Some commenters also 
said that the thresholds, particularly those for swaps, should vary 
according to the riskiness of the swap or type of commodity 
underlying the swap. See letters from BG LNG I, Farm Credit Council 
I, Gavilon II, ISDA I, NFPEEU, Vitol and WGCEF I.
    \378\ See, e.g., letters from API I, BG LNG IFarm Credit Council 
I, Midsize Banks, NCFC I, NGFA I, Regional Banks and SIFMA--Regional 
Dealers and meetings with Electric Companies on April 13, 2011, the 
Asset Management Group of SIFMA (``SIFMA--AMG'') on February 4, 2011 
and WGCEF on April 28, 2011.
    \379\ See, e.g., letters from CDEU and Vitol. Another commenter 
noted that application of a cost-benefit analysis of the de minimis 
threshold could be challenging. See Roundtable Transcript at 193-94 
(remarks of Camille Rudge, The PrivateBank and Trust Company).
    \380\ See letter from CDEU (citing statistics indicating that 
the average respondent to an ISDA survey had an annual ``event 
volume'' of over 297,000 OTC derivatives trade processing actions); 
see also letter from Regional Banks.
    \381\ See meetings with Electric Companies on April 13, 2011, 
Gavilon on May 11, 2011 and WGCEF on April 28, 2011.
---------------------------------------------------------------------------

    A number of commenters particularly criticized the proposed 
notional threshold, with some commenters suggesting that the threshold 
should be based on a percentage of the total swap market \382\ or some 
other fixed value,\383\ or arguing in favor of an exposure-based 
threshold in lieu of a notional threshold.\384\ Other commenters said 
that the aggregate notional amount of swaps is not a meaningful measure 
of an entity's dealing activity.\385\ A few commenters supported the 
proposed notional threshold.\386\
---------------------------------------------------------------------------

    \382\ See letter from COPE I (suggesting 0.001% of the total 
U.S. swap market, amounting to approximately $3 billion); see also 
letters from API dated June 3, 2011 (``API II''), EDF Trading, 
Edison Int'l, EEI/EPSA, IECA-Credit I, NCGA/NGSA II, NextEra, 
NFPEEU, Utility Group and WGCEF I (suggesting 0.001% of the total 
U.S. swap market).
    \383\ See, e.g., meeting with Land O'Lakes on January 6, 2011 
(suggesting the threshold be increased by 2 to 5 times--i.e., to 
$200 million to $500 million); letters from Growmark, FHLB I and MFX 
II (each supporting $1 billion notional standard); Regional Banks 
(supporting $2 billion notional standard); letter from NCFC dated 
October 31, 2011 (``NCFC III'') (supporting alternative notional 
standards of $1 billion or $3 billion depending on certain 
assumptions); letter from FSR VI and joint letter from Capital One, 
Fifth Third Bancorp and Regions Financial Corporation (suggesting 
notional standard of at least $2 billion); letter from WGCEF dated 
June 3, 2011 regarding the swap dealer definition (``WGCEF V'') 
(suggesting notional standard of $3.5 billion); and letter from IPR-
GDF Suez Energy North America (suggesting notional standard of $10 
billion). Some commenters suggested more than one possible 
threshold.
    \384\ See, e.g., letters from Farm Credit Council I, FSR VI and 
Midsize Banks. Other commenters said the threshold should account 
for the effect of netting. See letters from API II, Chesapeake 
Energy, Land O'Lakes I and MFX II. On the other hand, one commenter 
specifically supported the use of the gross notional amount. See 
letter from Greenberger.
    \385\ See letters from Farm Credit Council I, ISDA I, Land 
O'Lakes I, Midsize Banks, NCFC I, SIFMA--Regional Dealers and Vitol.
    \386\ See letters from AFR, Better Markets I, Greenberger and 
NMPF. One of these commenters said that data on credit default swaps 
analyzed by the SEC's Division of Risk, Strategy, and Financial 
Innovation indicates that the $100 million proposed notional 
thresholds are too high. See letters from Better Markets to CFTC and 
SEC dated April 6, 2012 (``Better Markets III'').
---------------------------------------------------------------------------

    Some commenters argued against basing the de minimis exception on 
the number of a person's swaps or security-based swaps or the number of 
a person's counterparties,\387\ or supported increasing those 
thresholds above the proposed standard.\388\ Commenters also suggested 
a variety of other alternatives to the proposed tests.\389\
---------------------------------------------------------------------------

    \387\ See, e.g., letters from API II, Atmos Energy, Chesapeake 
Energy, COPE I, EEI/EPSA, Gavilon II, IECA-Credit I, Land O'Lakes I, 
NCGA/NGSA II, NEM, NextEra I, NMPF, NRG Energy, Peabody and Utility 
Group.
    \388\ See, e.g., letters from ISDA I (suggesting 25 transactions 
over 12 months); FHLB I (suggesting 25 counterparties and 50 
transactions over 12 months) FSR I and Midsize Banks (each 
suggesting 75 counterparties and 200 transactions over 12 months); 
Regional Banks (suggesting 100 counterparties and 300 transactions 
over 12 months); Growmark and MFX II (suggesting thresholds should 
be increased by a factor of 10) and meeting with Land O'Lakes on 
January 6, 2011 (suggesting thresholds should be increased by a 
factor of between 2 and 5).
    One commenter said the number of transaction and number of 
counterparty standards should be disjunctive--i.e., a dealer's 
activity would be de minimis if it were below either standard. See 
letter from Northland Energy. Other commenters raised questions 
about how counterparties or transactions should be counted for 
purposes of the standard. See letters from CDEU (novations should 
not be counted as new transactions) and J.P. Morgan (members of an 
affiliated group should be counted as one counterparty), joint 
letter from BB&T, East West Bank, Fifth Third Bank, The PrivateBank 
and Trust Company, Regions Bank, Sun Trust Bank, U.S. Bank National 
Association and Wells Fargo Bank, N.A. (``Midmarket Banks'') 
(questioning how to count multiple borrower counterparties to a loan 
and swap) and meeting with Land O'Lakes on January 6, 2011 (members 
of a cooperative should be counted as one counterparty).
    Last, some commenters said that the number of transaction or 
number of counterparty standards should be deleted because they are 
not useful as tests of de minimis status. See letters from Gavilon 
II (eliminate both standards) and SIFMA--Regional Dealers (eliminate 
number of counterparties standard).
    \389\ See letters from IECA-Credit I (suggesting that exception 
exclude persons whose positions either are below a notional 
threshold or are below a combined proportionality and revenue 
threshold), SIFMA--Regional Dealers (supporting annual threshold of 
500 customer-facing or riskless principal swaps, consistent with the 
de minimis exception from the Exchange Act ``broker'' definition in 
connection with bank brokerage activity, as well as SEC rules in 
connection with the Exchange Act definition of ``dealer''), FHLB I 
(supporting non-quantitative test accounting for relatively small 
swap-related exposure compared to primary customer activity, 
collateral that also provides credit support for other business done 
with the customer, an existing relationship with customer and 
inability of customer to obtain swaps from entities that primarily 
are dealers), Gavilon II (alluding to use of non-quantitative 
tests), MFX II (suggesting establishment of a separate qualitative 
process by which a dealer may establish why registration is not 
warranted) and DC Energy (thresholds should be set at a level 
appropriate to support the capital levels to be required for swap 
dealers).
---------------------------------------------------------------------------

d. Additional Issues
    Some commenters emphasized the need to provide protections in 
connection with ``special entities.'' \390\ Certain commenters sought 
to identify problems related to the application of the proposed 
thresholds in connection with particular types of businesses or 
markets,\391\ or to aggregators or

[[Page 30628]]

cooperatives.\392\ Other commenters suggested that the exception should 
focus dealer regulation toward ``financial'' entities.\393\ One 
commenter emphasized the need for the exception to be available when 
the end-user is a credit union, bank or thrift.\394\
---------------------------------------------------------------------------

    \390\ See letters from Better Markets I (arguing that the de 
minimis exception should not be available in connection with 
transactions with special entities), AFR (similar), Greenberger 
(supporting reduction of the notional threshold for transactions 
with special entities to $5 million) and AFSCME. Some commenters 
said the standard for swaps and security-based swaps with special 
entities should be a notional value equal to 0.0001% of the total 
U.S. swap market. See letters from COPE I, EDF Trading, EEI/EPSA, 
IECA-Credit I, NFPEEU and Utility Group. One commenter said the 
threshold for special entities should be eliminated because it is 
not useful in determining de minimis status. See letter from Gavilon 
II.
    \391\ See letters from BG LNG I (small energy companies), COPE I 
and Northland Energy (each discussing commodity markets, suggesting 
that notional thresholds be based on the unit of a commodity), NCFC 
I (commodity prices), NGFA I (grain elevators) and WGCEF I (energy 
prices).
    \392\ See, e.g., letters from Growmark and Land O'Lakes I.
    \393\ See letters from NEM, NextEra I, and NGFA I.
    \394\ See letter from CUNA.
---------------------------------------------------------------------------

    Commenters sought clarification that the de minimis criteria would 
not apply to transactions for hedging or proprietary trading 
purposes,\395\ or to inter-affiliate transactions.\396\
---------------------------------------------------------------------------

    \395\ See, e.g., letters from API I, EDF Trading, Gavilon II and 
SIFMA--Regional Dealers.
    \396\ See, e.g., letter from Atmos Energy Holdings, Inc (``Atmos 
Holdings'').
---------------------------------------------------------------------------

    Commenters also raised issues related to the exception's treatment 
of the proposed use of a rolling annual period for calculations,\397\ 
the proposed use of ``effective notional amounts,'' \398\ the 
possibility of adjusting the thresholds over time,\399\ how the de 
minimis tests would apply in the context of affiliated positions,\400\ 
and how the exception would account for swaps or security-based swaps 
entered into before the definition's effective date.\401\
---------------------------------------------------------------------------

    \397\ See letters from NCGA/NGSA I (supporting measurement of 
rolling period average over 12 months), NextEra I (supporting 
evaluation as of the last day of each calendar quarter rather than 
over the immediate preceding 12 months) and Northland Energy 
(requesting clarification that if a monetary notional amount is 
used, the evaluation periods should be fixed rather than rolling).
    \398\ See letters from ISDA I (stating that the use of 
``effective notional amount'' in the test introduces ambiguity and 
uncertainty) and WGCEF I (notional amounts should be measured on a 
``delta-equivalent'' basis).
    \399\ See letters from Farm Credit Council I (supporting 
automatic periodic increases to reflect changes in market size, the 
size of typical contracts and inflation), Greenberger (supporting 
reevaluation of the de minimis criteria on an ongoing basis), and BG 
LNG I, EEI/EPSA, NCFC I and WGCEF I (each supporting inflation or 
market size adjustments).
    \400\ See meeting with Edison Int'l (requesting clarification 
that an entity that is prohibited from coordinating its financial 
derivatives activities should determine whether it qualifies for the 
de minimis exception without considering financial derivatives 
entered into by its affiliated entities).
    \401\ See letter from Covington & Burling (urging clarification 
that lookback period will not commence until all the relevant 
regulations become effective).
---------------------------------------------------------------------------

    Some commenters suggested that the de minimis thresholds be set 
higher initially to provide for efficient use of regulatory 
resources.\402\ One commenter requested clarification that the 
exception would apply prospectively without regard to dealing 
activities taken prior to the effectiveness of Title VII.\403\ One 
commenter requested that a person that falls above the de minimis tests 
be able to take advantage of application and re-evaluation periods akin 
to those associated with the major participant definitions.\404\
---------------------------------------------------------------------------

    \402\ See letters from BGLNG I and WGCEF V. See also Roundtable 
Transcript at 50-51 (remarks of Ron Oppenheimer, WGCEF), 57 (remarks 
of Richard Ostrander, Morgan Stanley) and 208-09 (remarks of Bella 
Sanevich, NISA Investment Advisors).
    \403\ See letter from FSR I.
    \404\ See letter from WGCEF I; see also Northland Energy 
(supporting grace period for registration if the de minimis 
threshold is exceeded).
---------------------------------------------------------------------------

    Two commenters expressed support for the proposed self-executing 
approach of the exception.\405\ Some commenters requested clarification 
that the de minimis exception is independent of the loan origination 
exclusion in the CEA ``swap dealer'' definition.\406\
---------------------------------------------------------------------------

    \405\ See letters from ISDA I and Northland Energy.
    \406\ See letters from FSR VI and Midsize Banks.
---------------------------------------------------------------------------

    A number of commenters also addressed the application of dealer 
regulation to non-U.S. entities. While those comments did not 
specifically address the de minimis exception, the exception may be 
relevant to addressing these cross-border issues.\407\
---------------------------------------------------------------------------

    \407\ Some commenters particularly took the view that the 
application of the dealer definitions to non-U.S. persons should 
solely address those persons' U.S. dealing activities. See letters 
from FSR I, ISDA I and Soci[eacute]t[eacute] G[eacute]n[eacute]rale. 
Some commenters also specifically identified concerns of 
international comity in this context. See letters cited in note 148, 
supra.
     The Commissions intend to address the application of dealer 
regulation to non-U.S. persons as part of separate releases that 
generally will address the application of Title VII to non-U.S. 
persons.
---------------------------------------------------------------------------

    One commenter separately addressed the credit default swap data 
analysis made available by CFTC and SEC staffs.\408\ The commenter 
expressed the view that this data supported the adoption of a de 
minimis threshold of $100 million or less, particularly focusing on the 
number of entities that may be excluded under particular 
thresholds.\409\
---------------------------------------------------------------------------

    \408\ See letter from Better Markets III.
    \409\ See id.
---------------------------------------------------------------------------

3. Final Rules--General Principles for Implementing the De Minimis 
Exception
a. Balancing Regulatory Goals and Burdens
    The Commissions recognize that implementing the de minimis 
exception requires a careful balancing that considers the regulatory 
interests that could be undermined by an unduly broad exception as well 
as those regulatory interests that may be promoted by an appropriately 
limited exception.
    On the one hand, a de minimis exception, by its nature, will 
eliminate key counterparty protections provided by Title VII for 
particular users of swaps and security-based swaps.\410\ The broader 
the exception, the greater the loss of protection.\411\ Moreover, in 
determining the scope of the exception, it is important to consider not 
only the current state of the swap and security-based swap markets, but 
also to account for how those markets may evolve in the future. This is 
particularly important because the full implementation of Title VII--
including enhancements to pricing transparency and the increased access 
to central clearing--reasonably may be expected to facilitate new 
entrants into the swap and security-based swap markets. To the extent 
that such entrants engage in dealing activity below the de minimis 
threshold--either for the long term or until their activity surpasses 
the threshold--the relative amount of unregistered activity within the 
market may be expected to increase. Accordingly, a higher de minimis 
threshold may not only result in a certain percentage of unregistered 
activity being transacted initially, consistent with the current 
market, but also may result in an even greater proportion of 
unregistered activity being transacted in the future.
---------------------------------------------------------------------------

    \410\ A number of commenters expressed particular concerns as to 
the threats that an overbroad exception would pose to special 
entities. See letters from AFR (noting that Congress incorporated 
special protections for special entities in reaction to news reports 
about special entities losing millions of dollars ``after signing up 
for derivatives deals they did not understand,'' and urging the 
elimination of any de minimis exception for transactions with 
special entities); Better Markets I (stating that history has shown 
that special entities are vulnerable to abuse, and that they need 
capital, collateral and business conduct protections as much as or 
more than any other category of market participants); and AFSCME 
(expressing skepticism as to the view that dealer status would 
preclude firms from entering into transactions with special 
entities). Some of those commenters also generally supported the 
proposed $100 million de minimis threshold. See letters from AFR and 
Better Markets I; see also letter from Greenberger (stating that the 
dynamic nature of the derivatives sector of the financial markets 
should counsel caution, and that the de minimis threshold should be 
reevaluated on an ongoing basis).
    \411\ Notwithstanding the reduction in protection, however, in 
the case of swaps and security-based swaps the general antifraud 
provisions of the CEA and the securities laws, respectively, 
including rules to be adopted by the SEC pertaining specifically to 
security-based swaps, will continue to apply to all transactions in 
security-based swaps. See, e.g., CEA section 4b(2), 7 U.S.C. 6b(2).
---------------------------------------------------------------------------

    On the other hand, the Commissions also recognize that Congress 
included a statutorily mandated de minimis exception for certain swap 
and security-based swap dealing activity, and that an appropriately 
calibrated de minimis exception has the potential to advance other 
interests. For example, the de minimis exception may further the 
interest of regulatory efficiency when

[[Page 30629]]

the amount of a person's dealing activity is, in the context of the 
relevant market, limited to an amount that does not warrant 
registration to address the concerns implicated by government 
regulation of swap dealers and security-based swap dealers. To advance 
this interest, it is necessary to consider the benefits to the 
marketplace associated with the regulation of dealers against the total 
burdens and potential impacts on competition, capital formation and 
efficiency associated with that regulation.\412\
---------------------------------------------------------------------------

    \412\ While we are mindful that the Commissions have yet to 
adopt all the final substantive rules applicable to swap dealers and 
security-based swap dealers, we nonetheless believe that we have 
sufficient understanding of those potential requirements to 
reasonably balance the relevant factors to identify the initial 
level of dealing activity that should be considered to be de 
minimis. Moreover, finalizing the dealer definitions will help 
provide for the orderly and informed finalization of those other 
substantive rules governing swap dealers and security-based swap 
dealers.
---------------------------------------------------------------------------

    In addition, the exception can provide an objective test for 
persons who engage in some swap or security-based swap activities that, 
in their view, potentially raise the risk that they would be deemed to 
be dealers.\413\ The exception also may permit persons that are not 
registered as dealers to accommodate existing clients that have a need 
for swaps or security-based swaps in conjunction with other financial 
services or commercial activities, thus avoiding the need for such 
clients to establish separate relationships with registered dealers, 
which may have attendant costs. The exception further may promote 
competition in dealing activity within the swap or security-based swap 
markets, by helping to allow non-registered persons to commence 
providing dealing services while avoiding the costs associated with 
full-fledged dealers. More competition within the market for swaps and 
security-based swaps may not only decrease the costs for participants 
in the market, but also may help to decrease systemic risk by lessening 
the current apparent concentration of dealing activity among a few 
major market participants.\414\
---------------------------------------------------------------------------

    \413\ ``Congress incorporated a de minimis exception to the Swap 
Dealer definition to ensure that smaller institutions that are 
responsibly managing their commercial risk are not inadvertently 
pulled into additional regulation.'' See 156 Cong. Rec. S6192 (daily 
ed. July 22, 2010) (letter from Senators Dodd and Lincoln to 
Representatives Frank and Peterson).
    \414\ See 478 through 487 and accompanying text, infra.
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    The statutory requirements that apply to swap dealers and security-
based swap dealers include requirements aimed at the protection of 
customers and counterparties,\415\ as discussed above, as well as 
requirements aimed at helping to promote effective operation and 
transparency of the swap and security-based swap markets.\416\ The 
overall economic benefits provided by these requirements in large part 
will depend on the proportion of swaps and security-based swaps that 
are transacted subject to these requirements. In other words, the 
greater the dealing activity of a registered dealer, the more 
significant the resulting increase in market efficiency,\417\ and the 
greater the reduction in risks faced by the entity's customers and 
counterparties.\418\ These benefits can be expected to accrue over the 
long term and be distributed over the market and its participants as a 
whole. This is not to say, however, that it would be insignificant for 
any particular counterparty if its swaps or security-based swaps were 
to fall outside of the ambit of dealer regulation. For example, a 
customer or counterparty that is not protected by the business conduct 
rules applicable to dealers might be more likely to suffer losses 
associated with entering into an inappropriate or misunderstood swap or 
security-based swap than if the instrument was transacted pursuant to 
the business conduct rules applicable to registered dealers.
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    \415\ As discussed above, in part, these customer and 
counterparty protections derive from the financial responsibility 
requirements applicable to dealers, particularly: capital and margin 
requirements (CEA section 4s(e); Exchange Act section 15F(e)), and 
requirements for segregation of collateral (CEA sections 4d(f), 
4s(l); Exchange Act section 3E).
    These customer and counterparty protections also derive from 
certain other requirements applicable to dealers, particularly: 
requirements with respect to business conduct when transacting with 
special entities (CEA sections 4s(h)(2), 4s(h)(4), 4s(h)(5); 
Exchange Act sections 15F(h)(2), (h)(4), (h)(5)); disclosure 
requirements (CEA section 4s(h)(3)(B); Exchange Act section 
15F(h)(3)(B)); requirements for fair and balanced communications 
(CEA section 4s(h)(3)(D); Exchange Act section 15F(h)(3)(C)); other 
requirements related to the public interest and investor protection 
(CEA section 4s(h)(3)(D); Exchange Act section 15F(h)(3)(D)); and 
conflict of interest provisions (CEA section 4s(j)(5); Exchange Act 
section 15F(j)(5)).
    \416\ Relevant provisions are: reporting and recordkeeping 
requirements (CEA section 4s(f); Exchange Act section 15F(f)); daily 
trading records requirements (CEA section 4s(g); Exchange Act 
section 15F(g)); regulatory standards related to the confirmation, 
processing, netting, documentation and valuation of security-based 
swaps (CEA section 4s(i); Exchange Act section 15F(i)); position 
limit monitoring requirements (CEA section 4s(j)(1); Exchange Act 
section 15F(j)(1)); risk management procedure requirements (CEA 
section 4s(j)(2); Exchange Act section 15F(j)(2)); and requirements 
related to the disclosure of information to regulators (CEA section 
4s(j)(3); Exchange Act section 15F(j)(3)).
    \417\ For example, the more swaps or security-based swaps a 
dealer enters into, the more significant will be the efficiency 
benefits associated with confirmation, processing, netting 
documentation and valuation requirements applicable to dealers.
    \418\ For example, the more swaps or security-based swaps a 
dealer enters into, the more significant the number of 
counterparties that will be protected by the disclosure and other 
business conduct obligations imposed on dealers.
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    In contrast to the benefits associated with dealer regulation, many 
of the burdens of dealer regulation will accrue in the short term and 
will fall directly on registered dealers.\419\ Some of those burdens 
may be expected to be independent of the amount of an entity's dealing 
activity (i.e., entities that engage in minimal dealing activity would 
still be expected to face certain burdens associated with the 
registration process and the development of compliance and other 
systems if they are required to register as dealers), while other 
burdens (e.g., the impact of margin and capital rules applicable to 
dealers) may be more directly linked to the amount of that entity's 
dealing activity.
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    \419\ Certain commenters also have expressed concerns that the 
prospect of regulation may deter certain entities from engaging in 
limited swap or security-based swap dealing activities, see, e.g., 
letters from SIFMA--Regional Dealers and Midsize Banks, which could 
reduce the availability of those instruments.
---------------------------------------------------------------------------

    As discussed below, the Commissions have sought to balance the 
various interests associated with a de minimis exception, as well as 
the benefits and burdens associated with such an exception, in 
developing the factors to implement the de minimis exceptions to the 
``swap dealer'' and ``security-based swap dealer'' definitions.
    However, in moving forward with implementing this balancing 
approach, we recognize that the information that currently is available 
regarding certain portions of the swap market is limited. Following the 
full implementation of Title VII, more information will be available to 
permit us to assess the effectiveness of this balancing for particular 
markets and to revise the exception as appropriate.
    In that context--and in light of the tools currently available to 
us--we have been influenced, in particular, by comments taking the view 
that the de minimis factors should take into account the size and 
unique attributes of the market for swaps and security-based 
swaps.\420\ We believe that factors that exclude entities whose dealing 
activity is sufficiently modest in light of the total size, 
concentration and other attributes of the applicable markets can be 
useful in avoiding the imposition of

[[Page 30630]]

regulatory burdens on those entities for which dealer regulation would 
not be expected to contribute significantly to advancing the customer 
protection, market efficiency and transparency objectives of dealer 
regulation. The Commissions note, however, that they are not of the 
general view that the costs of extending regulation to any particular 
entity must be outweighed by the quantifiable or other benefits to be 
achieved with respect to that particular entity. The Commissions, 
rather, analyze the overall benefits and costs of regulation, keeping 
in mind, as noted above, that the benefits may be distributed, accrue 
over the long-term, and be difficult to quantify or to measure as 
easily as certain costs.\421\
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    \420\ See, e.g., letters from CDEU (comparing proposed 
thresholds with statistics regarding the activities of recognized 
dealers) and EEI/EPSA (recommending that thresholds be set at an 
amount equal to 0.001 percent of the aggregate size of the U.S. 
swaps market, and 0.0001 percent for swaps in which the counterparty 
is a special entity).
    \421\ For example, it does not appear possible to demonstrate 
empirically--let alone quantify--the increase or decrease in the 
possibility that a financial crisis would occur at a particular 
future time and with a particular intensity in the absence of 
financial regulation or as a result of varying levels or types of 
financial regulation. It also is difficult to demonstrate 
empirically that the customer protections associated with dealer 
regulation would increase or decrease the likelihood that any 
particular market participant would suffer injury (or the degree to 
which the participant would suffer injury) associated with entering 
into an inappropriate swap or security-based swap. At the same time, 
certain costs may also not be readily susceptible to quantification 
or measurement, for example, the costs that might be associated with 
diminished presence, if any, of new entrants. The inability to 
quantify these benefits and costs does not mean that the benefits 
and costs of dealer regulation are any less substantial.
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b. Specific Factors Implementing the De Minimis Exception
i. Notional Test
    Consistent with the proposal, the final rules implementing the de 
minimis exception take into account the notional amount of an entity's 
swap or security-based swap positions over the prior 12 months arising 
from its dealing activity.\422\ While the Commissions recognize that 
notional amounts do not directly measure the exposure or risk 
associated with a swap or security-based swap position, such measures 
do reflect the relative amount of an entity's dealing activity.\423\ 
Moreover, although some commenters have posited measures of risk or 
exposure as alternatives to notional measures, such risk or exposure 
measures could, to the extent they allow for netting or collateral 
offsets, potentially allow an unregistered entity to engage in large 
amounts of swap or security-based swap dealing activity while remaining 
within the de minimis exception so long as that entity nets or 
collateralizes its swap or security-based swap positions. Such an 
outcome could undermine the customer protection and market operation 
benefits associated with dealer regulation. As with the proposed rules, 
the notional factor in the final rules is based on the notional 
positions of an entity over a 12 month period, rather than capping the 
current notional amount of a position at any time, to better reflect 
the amount of an entity's current activity.
---------------------------------------------------------------------------

    \422\ See CFTC Regulation Sec.  1.3(ggg)(4); Exchange Act rule 
3a71-2(a)(1). Over the first year following the effective date of 
the final rules implementing the statutory definition of ``swap'' 
and ``security-based swap'' as set forth in CEA section 1a(47) and 
Exchange Act section 3(a)(68), respectively, this notional test will 
be based on the person's dealing activity following that effective 
date. See id. Accordingly, the analysis of whether a person may take 
advantage of the de minimis exception will not encompass the 
person's dealing activity prior to that effective date, given the 
need for the person to know whether an instrument is a swap or 
security-based swap for purposes of the analysis.
    \423\ ``Changes in notional volumes are generally reasonable 
reflections of business activity, and therefore can provide insight 
into potential revenue and operational issues. However, the notional 
amount of derivatives contracts does not provide a useful measure of 
either market or credit risks.'' OCC Quarterly Report at 8.
---------------------------------------------------------------------------

    The final rules, like the proposed rules, include lower notional 
thresholds for dealing activities in which the counterparty is a 
``special entity.'' \424\ This is consistent with the fact that Title 
VII's requirements applicable to swap dealers and security-based swap 
dealers provide heightened protection to those types of entities.\425\ 
It is important that the de minimis exception not undermine those 
statutory protections.\426\ Also, consistent with the Proposing 
Release, these notional standards will be based on ``effective 
notional'' amounts when the stated notional amount is leveraged or 
enhanced by the structure of the swap or security-based swap.\427\
---------------------------------------------------------------------------

    \424\ For these purposes, ``special entity'' means: (i) A 
Federal agency; (ii) a state, state agency, city, county, 
municipality, or other political subdivision of a state; (iii) any 
employee benefit plan, as defined in section 3 of the Employee 
Retirement Income Security Act of 1974 (``ERISA''); (iv) any 
governmental plan, as defined in section 3 of ERISA; or (v) any 
endowment, including an endowment that is an organization described 
in section 501(c)(3) of the Internal Revenue Code of 1986. See CEA 
section 4s(h)(2)(C) and CFTC Regulation Sec.  23.401(c); Exchange 
Act section 15F(h)(2)(C).
    \425\ See CEA sections 4s(h)(2), (4), (5); see also CFTC, 
Business Conduct Standards for Swap Dealers and Major Swap 
Participants with Counterparties; Final Rule, 77 FR 9733 (Feb. 17, 
2012); Exchange Act sections 15F(h)(2), (4), (5) (providing 
additional requirements for dealers that advise special entities or 
that enter into swaps or security-based swaps with special 
entities).
    \426\ The importance of the statutory protections for special 
entities has been highlighted by the SEC's recent action in 
connection with the inappropriate sale of notes linked to the 
performance of synthetic collateralized debt obligations to a number 
of school districts. According to a complaint filed in federal 
district court, these securities were unsuitable for the investment 
needs of the school districts, were sold to school districts that 
lacked the requisite sophistication and experience to independently 
evaluate the risks of the investment, and exposed the school 
districts to a heightened risk of catastrophic loss ultimately led 
to a complete loss of their investments. ``SEC Charges Stifel, 
Nicolaus and Former Executive with Fraud in Sale of Investments to 
Wisconsin School Districts,'' SEC Litigation Release No. 22064 (Aug. 
10, 2011) (https://www.sec.gov/litigation/litreleases/2011/lr22064.htm).
    \427\ For example, if an exchange of payments associated with a 
$1 million notional equity swap was based on three times the return 
associated with the underlying equity, the effective notional amount 
of the equity swap would be $3 million.
---------------------------------------------------------------------------

ii. Other Tests From the Proposing Release
    The proposed rules limited the number of swaps or security-based 
swaps that an entity could enter into in a dealing capacity, and the 
number of an entity's counterparties in a dealing capacity. The final 
rules do not include those measures. In part, this reflects commenter 
concerns that a standard based on the number of swaps or security-based 
swaps or counterparties can produce arbitrary results by giving 
disproportionate weight to a series of smaller transactions or 
counterparties.\428\
---------------------------------------------------------------------------

    \428\ See, e.g., letter from COPE I.
---------------------------------------------------------------------------

c. Significance of Statutory ``Customer'' Language
    Consistent with the Proposing Release, the final rules implementing 
the de minimis exception do not require the presence of any type of 
defined ``customer'' relationship.
    In adopting these rules the Commissions have considered alternative 
approaches suggested by commenters, including one commenter's 
suggestion that the de minimis exception should be available only in 
connection with swaps or security-based swaps entered into as part of a 
``customer'' relationship.\429\ In considering that alternative view, 
however, we believe that it is significant that the statutory exception 
lacks terminology such as ``existing'' or ``preexisting'' that limits 
the availability of the exception or otherwise to distinguishes a 
``customer'' relationship from other types of counterparty 
relationship. Also, while that alternative view could still permit an 
unregistered person to provide limited dealer services as an 
accommodation to an existing customer or counterparty, an 
interpretation that predicates the exception on the presence of a 
particular type of ``customer'' relationship would not advance other 
potential benefits associated with a de minimis exception, including 
the

[[Page 30631]]

benefit of providing certainty in connection with the swap or security-
based swap activities of end-users.\430\ Accordingly, we do not believe 
that the ``customer'' reference standing alone provides a sufficient 
basis to conclude that the exception should only be available if there 
is an existing relationship of some type, and the final rules neither 
require that a dealer accommodate the demand of an existing customer 
nor require the presence of a preexisting relationship for the 
exception to apply.
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    \429\ See letter from Better Markets I.
    \430\ As discussed above, see note 413, supra, there is 
legislative history that suggests that an intended purpose of the 
exception would be to ensure that the dealer definition does not 
encompass ``smaller institutions that are responsibly managing their 
commercial risk.''
---------------------------------------------------------------------------

    We also are not persuaded by the different commenter suggestion 
that the statutory de minimis exception's ``customer'' language means 
that an unregistered dealer should be permitted to engage in unlimited 
dealing activity so long as its counterparties are not customers.\431\ 
Such an unlimited exception would appear to be contrary to the express 
language of the statutory exception. In addition, such an approach 
would lead to the perverse result of discouraging entities from 
entering into swaps or security-based swaps to facilitate risk 
management activities of customers (while encouraging other dealing 
activities), which appears contrary to Title VII's general approach of 
seeking to limit undue impacts on the swap and security-based swap 
activities of commercial end-users.
---------------------------------------------------------------------------

    \431\ See, e.g., letter from ISDA I.
---------------------------------------------------------------------------

d. Focus on ``Dealing'' Activity
    Some commenters suggested that we clarify that the limitations 
associated with the de minimis exception apply only in connection with 
a person's dealing activities, and not to the person's hedging or 
proprietary trading activities.\432\ The Commissions agree that the de 
minimis exception is intended to permit an unregistered person to 
engage in a limited amount of dealing activity without regard to the 
person's non-dealing activity. Thus, to the extent that a particular 
swap or security-based swap position is not connected to dealing 
activity under the applicable interpretation of the statutory dealer 
definition, it will not count against the de minimis thresholds. 
Conversely, if a swap or security-based swap position is connected to 
the person's dealing activity, the position will count against those 
thresholds.\433\
---------------------------------------------------------------------------

    \432\ See, e.g., letters from SIFMA--Regional Dealers and EDF 
Trading.
    \433\ For purposes of the de minimis exception to the security-
based swap dealer definition, we note that one indicator of dealing 
activity under the dealer-trader distinction is that a person profit 
by providing liquidity in connection with security-based swaps. 
Accordingly, for purposes of the de minimis exception to the 
security-based swap dealer definition, a security-based swap 
position that hedges or otherwise offsets a position that was 
entered into as part of dealing activity would itself comprise part 
of the person's dealing activity, and hence count against the de 
minimis thresholds.
     For purposes of the de minimis exception to the swap dealer 
definition, we take the view that the relevant question in 
determining whether swaps count as dealing activity against the de 
minimis thresholds is whether the swaps fall within the swap dealer 
definition under the statute and the final rules, as further 
interpreted by this Adopting Release. If hedging or proprietary 
trading activities did not fall within the definition, including 
because of the application of CFTC Regulation Sec.  1.3(ggg)(6), 
they would not count against the de minimis thresholds.
---------------------------------------------------------------------------

    Commenters also requested clarification that the de minimis 
thresholds do not apply to a person's inter-affiliate swaps and 
security-based swaps, nor apply to swaps covered by the exclusion for 
swaps entered into by insured depository institutions in connection 
with the origination of loans to customers.\434\ Consistent with the 
discussion above,\435\ such swaps or security-based swaps do not 
constitute dealing activity and should not be counted against the de 
minimis thresholds. Similarly, swaps between a cooperative and its 
members, as provided in CFTC Regulation Sec.  1.3(ggg)(6)(ii), and 
swaps entered into for the hedging purpose defined in CFTC Regulation 
Sec.  1.3(ggg)(6)(iii) should not be counted against the de minimis 
threshold.\436\
---------------------------------------------------------------------------

    \434\ See, e.g., letters from Atmos Holdings and FSR I.
    \435\ See parts II.B and II.C, supra.
    \436\ Swaps and security-based swaps that hedge, mitigate, or 
offset the types of swaps and security-based swaps discussed in the 
foregoing paragraph, which do not constitute dealing activity, 
similarly should not be counted against the de minimis thresholds.
---------------------------------------------------------------------------

    In light of the increased notional thresholds of the final rules, 
and the resulting opportunity for a person to evasively engage in large 
amounts of dealing activity if it can multiply those thresholds, the 
final rules provide that the notional thresholds to the de minimis 
exception encompass swap and security-based swap dealing positions 
entered into by an affiliate controlling, controlled by or under common 
control with the person at issue.\437\ This is necessary to prevent 
persons from avoiding dealer regulation by dividing up dealing activity 
in excess of the notional thresholds among multiple affiliates.\438\
---------------------------------------------------------------------------

    \437\ See CFTC Regulation Sec.  1.3(ggg)(4)(i); Exchange Act 
rule 3a71-2(a)(1). For these purposes, we interpret control to mean 
the possession, direct or indirect, of the power to direct or cause 
the direction of the management and policies of a person, whether 
through the ownership of voting securities, by contract or 
otherwise. This is consistent with the definition of ``control'' and 
``affiliate'' in connection with Exchange Act rules regarding 
registration statements. See Exchange Act rule 12b-2.
     The final rules use a control standard in connection with the 
de minimis notional thresholds as a means reasonably designed to 
prevent evasion of the limitations of that exception. This contrasts 
with the majority-ownership standard used by the inter-affiliate 
exclusions from the dealer and major participant definitions. See 
parts II.C.2 and IV.G.2, infra. That majority-ownership standard, 
which in application will not be expected to be satisfied in all 
circumstances in which a control standard is satisfied, is 
reasonably designed to reflect the economic alignment that 
appropriately underpins those exclusions.
    \438\ In other words, for example, if a parent entity controls 
two subsidiaries which both engage in activities that would cause 
the subsidiaries to be covered by the dealer definitions, then each 
subsidiary must aggregate the swaps or security-based swaps that 
result from both subsidiaries' dealing activities in determining if 
either subsidiary qualifies for the de minimis exception.
    The SEC expects to address the application of this principle to 
the security-based swap activities of non-U.S. persons in a separate 
release.
---------------------------------------------------------------------------

e. Alternative Approaches We Are Not Following
    Certain commenters have suggested alternative approaches to 
implementing the de minimis exception. While the Commissions have 
considered those suggested alternatives, we do not believe that they 
provide the optimal framework for implementing the exception.
    For example, some commenters took the position that the de minimis 
exception should focus dealer regulation on those entities whose 
dealing activities pose systemic risk, and excuse other dealers from 
having to register.\439\ Such an approach, however, would fail to 
account for regulatory interests apart from the control of systemic 
risk that are addressed by dealer regulation, including statutory 
provisions that protect customers and counterparties in other ways, and 
that promote effective market operations and transparency.\440\
---------------------------------------------------------------------------

    \439\ See, e.g., letters from CDEU and SIFMA--Regional Dealers.
    \440\ We also disagree with the suggestion that it would be 
inconsistent with the Title VII framework to consider customer 
protection issues in setting the de minimis factors. See letter from 
WGCEF I. While the restrictions on the availability of swaps and 
security-based swaps to non-ECPs help to mitigate certain customer 
protection concerns, Title VII includes specific safeguards designed 
to protect dealers' customers and counterparties regardless of 
whether those are ECPs. It would not be consistent with Title VII to 
ignore those interests.
---------------------------------------------------------------------------

    Some commenters also have suggested that the de minimis exception 
should subsume a proportionality

[[Page 30632]]

standard, whereby an entity may be excluded from dealer regulation if 
its dealing activity comprises only a relatively small portion of its 
overall activities (or its overall swap or security-based swap 
activities), or if its dealing activity is ``tangential'' to its 
principal business.\441\ We are not incorporating that type of approach 
into the de minimis factors, however, because that approach would not 
appear to provide a logical way to balance the benefits and burdens of 
dealer regulation. A proportionality approach could permit a large 
entity to engage in a significant amount of dealing activity without 
being subject to dealer regulation, thus undermining the benefits of 
dealer regulation. Moreover, a proportionality approach could lead to 
arbitrary results by excusing a large entity from dealer regulation 
while requiring the registration of a smaller entity that engages in 
less total dealing activity (if that smaller amount of dealing activity 
comprises a greater portion of the smaller entity's total 
activity).\442\
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    \441\ See letter from FHLB I.
    \442\ As discussed below, if an entity is a dealer, the 
regulations applicable to dealers in general will govern all of the 
entity's swap or security-based swap activities and positions. 
Depending on the applicable facts and circumstances, however, the 
entity may be able to avail itself of a limited purpose designation 
as a dealer. See part II.E, infra.
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    Some commenters also supported the use of non-quantitative 
standards in connection with the de minimis exception.\443\ Although we 
recognize that such an approach may help us weigh the facts and 
circumstances associated with a particular person's dealing activity, 
we believe that it is more appropriate to base the exception on an 
objective quantitative standard, to allow the exception to be self-
executing, and to promote predictability among market participants and 
the efficient use of regulatory resources. Unlike the overall 
definitions of ``swap dealer'' and ``security-based swap dealers,'' 
which consider the entirety of a person's activities with respect to 
swaps, the de minimis exception is only relevant to persons who have 
determined that they are engaged in swap or security-based swap 
dealing, and are looking to determine whether the quantity of their 
dealing activity is de minimis. For this more particular and focused 
determination, an objective quantitative standard is more appropriate.
---------------------------------------------------------------------------

    \443\ See letters from FHLB I, Gavilon II, and MFX II.
---------------------------------------------------------------------------

    Commenters also made various suggestions as to the types of factors 
and accompanying thresholds that should be used in connection with the 
de minimis exception. Those suggestions are addressed more specifically 
below in the specific context of the swap dealer and security-based 
swap dealer de minimis exceptions.
4. Final Rules--De Minimis Exception to Swap Dealer Definition
a. Overview of the Final Rule
    After considering commenters' views, the final rule implementing 
the de minimis exception caps an entity's dealing activity involving 
swaps at $3 billion over the prior 12 months.\444\ This amount is based 
on input from commenters and is supported by several rationales, 
including the estimated size of the domestic swap market, among others.
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    \444\ CFTC Regulation Sec.  1.3(ggg)(4). As noted above, for the 
first year following the effective date of the rules implementing 
the definition of ``swap'' the analysis would only address activity 
following that effective date. For clarity, the final rule also has 
been revised from the proposal to provide that persons taking 
advantage of the exception ``shall be deemed not to be'' swap 
dealers (the proposed rule used the phrasing ``shall not be deemed 
to be'' swap dealers) The final rule also reflects certain 
structural changes consistent with the substantive changes from the 
proposed rule. In addition, as discussed above, see part II.D.3.d, 
supra, the final rule has been revised to provide that the notional 
thresholds to the de minimis exception encompass swap dealing 
positions entered into by an affiliate controlling, controlled by or 
under common control with the person at issue.
---------------------------------------------------------------------------

    As noted above, commenters who suggested a fixed notional standard 
proposed that the standard be set at a level between $200 million and 
$3.5 billion in notional amount of swaps entered into over a period of 
twelve months.\445\ In considering these comments, we are mindful of 
the variety of uses of swaps in various markets and therefore it is 
understandable that various commenters would reach different 
conclusions regarding the appropriate standard. At the same time, we 
see value in setting a single standard for all swaps so that there is a 
``level playing field'' for all market participants and so that the 
standard can be implemented easily without the need to categorize 
swaps. Considering the written input of the commenters as well as the 
discussions of the de minimis standard at the Commissions' joint 
roundtable and numerous meetings with market participants, and the 
benefits of the regulation of swap dealers (i.e., protection of 
customers and counterparties, and promotion of the effective operation 
and transparency of the swap markets), we believe a notional standard 
at a level of $3 billion appropriately balances the relevant regulatory 
goals.
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    \445\ One commenter suggested a threshold of $3 billion. See 
letter from COPE I (suggesting 0.001% of the total U.S. swap market, 
amounting to approximately $3 billion). Other commenters also 
supported a threshold of 0.001% of the total U.S. swap market. See 
letters cited in note 382, supra.
---------------------------------------------------------------------------

    As noted above, several commenters suggested that the standard be 
set at an amount equal to 0.001 percent of the overall domestic market 
for swaps. The Commissions note, however, that comprehensive 
information regarding the total size of the domestic swap market is 
incomplete, with more information available with respect to certain 
asset classes than others. The CFTC evaluated data regarding one 
particular type of swap--credit default swaps (``CDS'') based on 
indices of debt securities known as ``index CDS''--that was provided by 
the SEC.\446\ As noted in the CFTC analysis of this data, however, the 
information is not filtered to reflect activity that would constitute 
swap dealing under the Dodd-Frank Act, so it is not possible to use the 
data to draw conclusions regarding any specific entity's status as a 
swap dealer.\447\ The data reflects only activity relating to index 
CDS, which constitute a very narrow part of the overall swap market, 
and, as noted in the CFTC analysis, similar data regarding other types 
of swaps is not available.\448\ Subject to these limitations, the data 
may help evaluate the impact of alternative approaches to implementing 
the de minimis exception.
---------------------------------------------------------------------------

    \446\ The CFTC analysis was made available to the public. See 
memorandum to the public comment file from the CFTC Office of the 
Chief Economist.
    \447\ See id.
    \448\ See id.
---------------------------------------------------------------------------

    One often-cited measure of the market, the Quarterly Report on Bank 
Trading and Derivatives Activities issued by the OCC (``OCC Quarterly 
Report'') is both limited, in that it includes only data related to the 
activities of U.S. bank holding companies, commercial banks and trust 
companies, and over-inclusive, in that it includes activities related 
to instruments that are not or may not be included in the final 
definition of ``swap'' (including futures, forwards, certain foreign 
exchange instruments, and certain options) and it includes both swaps 
and security-based swaps. Nonetheless, the Commissions believe that the 
available (imperfect) data suggests that a $3 billion notional standard 
is generally consistent with the commenters' suggestion of basing the 
standard on a percentage of the overall domestic market for swaps.
    The total notional value of $333.1 trillion in ``derivatives'' 
stated in the most recent OCC Quarterly Report includes approximately 
$221.1 trillion

[[Page 30633]]

in ``swaps'' and ``credit derivatives.'' \449\ Since some instruments 
that are security-based swaps are included in this total,\450\ the 
total notional value of swap positions at U.S. bank holding companies, 
commercial banks and trust companies at the end of the second quarter 
of 2011 of may be estimated to be somewhat less than $221.1 trillion.
---------------------------------------------------------------------------

    \449\ See Office of the Comptroller of the Currency, ``Quarterly 
Report on Bank Trading and Derivatives Activities, Second Quarter 
2011'' at tables 1 and 2 (https://www.occ.gov/topics/capital-markets/financial-markets/trading/derivatives/dq211.pdf). These totals 
reflect the sum of the amounts reported for the top 25 bank holding 
companies reported in table 1 and for all but the top 25 commercial 
banks and trust companies reported in table 2.
    However, this adjustment is only approximate, because the 
definitions of ``swap'' and ``credit derivative'' used in the OCC 
Quarterly Report are likely to be significantly different from the 
final definition of ``swap'' and ``security-based swap'' for 
purposes of the Dodd-Frank Act. For the same reason, it is uncertain 
how many of the notional value of $54.5 trillion in options reported 
in the OCC Quarterly Report are swaps or security-based swaps.
    Also, data from the CDS trade information warehouse maintained 
by the Depository Trust & Clearing Corporation (``DTCC'') indicates 
that total global notional CDS positions on indices amount to 
approximately $10.47 trillion. See https://dtcc.com/products/derivserv/data_table_i.php?tbid=3 (data for the week ending 
October 7, 2011, obtained on October 17, 2011).
    \450\ See part II.D.5, infra, for a discussion of the size of 
the security-based swap market.
---------------------------------------------------------------------------

    This total notional value is by nature under-inclusive, because it 
reflects only swap positions at U.S. bank holding companies, commercial 
banks and trust companies and not the swap positions of other market 
participants. However, there are also reasons that the information from 
the OCC Quarterly Report may overstate the notional value of swaps that 
would be relevant to estimating the size of the domestic swap market 
for purposes of the de minimis standard. While we believe the data is 
not sufficiently precise at this time to serve as the sole basis for 
the notional standard, a standard of $3 billion seems that it is likely 
generally consistent with 0.001 percent of the domestic swap market 
that would be relevant to a potential dealer's de minimis swap activity 
figure. First, the large majority of derivatives in the OCC Quarterly 
Report (approximately $229 trillion in notional value for commercial 
banks and trust companies) are derivatives between ``dealers'' (as 
defined for the purposes of the report.) \451\ Thus, it is likely that 
a large part of the derivatives in the OCC Quarterly Report reflect 
transactions between financial institutions that will be swap dealers. 
It is also notable that approximately $204.6 trillion in notional value 
of the derivatives (i.e., not only swaps) reported by U.S. commercial 
banks were interest rate contracts, many of which are swaps entered 
into by IDIs with customers in connection with the origination of loans 
which will be excluded from the determination of whether the IDIs are 
swap dealers.\452\ Finally, the OCC Quarterly Report measures swap 
positions held at a certain point in time, rather than the level of 
swap activity over a certain time period, again indicating that the 
figures are broader than those that would be subject to the de minimis 
figure. Accordingly, it appears that notional amount of the overall 
domestic market for swaps that actually would be relevant to 
determining the notional standard, and thus the appropriate basis for 
the 0.001 percent calculation, may be significantly lower than $331 
trillion.
---------------------------------------------------------------------------

    \451\ See OCC Quarterly Report at Graph 1.
    \452\ See OCC Quarterly Report at Graph 3.
---------------------------------------------------------------------------

    Because there is merit in the 0.001 percent ratio suggested by 
several commenters, we believe an appropriate balance of the goal of 
promoting the benefits of regulation (while recognizing the 
unquantifiable nature of those benefits) against the competing goal of 
avoiding the imposition of burdens on those entities for which 
regulation as a dealer would not be associated with achieving those 
benefits in a significant way, would be reached by setting the notional 
standard for swaps at a level that is near (taking into account the 
uncertainties noted above) 0.001 percent of a reasonable estimate of 
the overall domestic market for all swaps between all counterparties. 
We believe a $3 billion notional value standard is appropriate taking 
all these considerations into account.
b. Dealing Activity Involving Special Entities
    For swaps in which the counterparty is a special entity, the final 
rules set a notional standard consistent with the proposal of $25 
million over the prior 12 months.\453\ The Commissions believe that 
this notional standard is appropriate in light of the special 
protections that Title VII affords to special entities. In adopting 
this threshold, we recognize the serious concerns raised by commenters 
stating that the de minimis exception should not permit any dealing 
activities (by persons who are not registered as swap dealers) 
involving special entities, in light of losses that special entities 
have incurred in the financial markets.\454\ However, the final rule 
does not fully exclude such dealing activity from the exception, in 
light of the potential benefits that may arise from a de minimis 
exception. In this way, the threshold would not completely foreclose 
the availability of swaps to special entities from unregistered 
dealers, but the threshold would limit the financial and other risks 
associated with those positions for a special entity, which would in 
turn limit the possibility of inappropriately undermining the special 
protections that Title VII provides to special entities.
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    \453\ CFTC Regulation Sec.  1.3(ggg)(4)(i).
    \454\ See letters from AFR and Better Markets I.
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c. Phase-in Procedure
    The Commissions believe that a phase-in period for the de minimis 
threshold would facilitate the orderly implementation of Title VII by 
permitting market participants and the Commissions to familiarize 
themselves with the application of the swap dealer definition and swap 
dealer requirements and to consider the information that will be 
available about the swap market, including real-time public reporting 
of swap data and information reported to swap data repositories. In 
addition, a phase-in period would afford the Commissions additional 
time to study the swap markets as they evolve in the new regulatory 
framework and allow potential swap dealers that engage in smaller 
amounts of activity (relative to the current size of the market) 
additional time to adjust their business practices, while at the same 
time preserving a focus on the regulation of the largest and most 
significant swap dealers. The Commissions also recognize that the data 
informing their current view of the de minimis threshold is based on 
the markets as they exist today, and that the markets will evolve over 
the coming years in light of the new regulatory framework and other 
developments.
    We have also considered that there may be some uncertainty 
regarding the exact level of swap dealing activity, measured in terms 
of a gross notional amount of swaps, that should be regarded as de 
minimis. While some quantitative data regarding the usage of swaps is 
available, there are many aspects of the swap markets for which 
definitive data is not available. We have also considered comments 
suggesting that the de minimis thresholds should be set higher 
initially to provide for efficient use of regulatory resources,\455\ or 
that implementation of the dealer requirements should be phased.\456\ 
For

[[Page 30634]]

all these reasons, the Commissions believe it is appropriate that the 
final rules provide for a phase-in period following the effective date 
during which higher de minimis thresholds would apply.
---------------------------------------------------------------------------

    \455\ See letters cited in footnote 402, supra.
    \456\ See, e.g., Roundtable Transcript at 35 (remarks of Ron 
Filler, New York Law School) and letters from FSR dated May 12, 2011 
(``FSR III'') and WGCEF V.
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    In particular, during this phase-in period, a person's swap dealing 
activity over the prior 12 months is capped at a gross notional value 
of $8 billion.\457\ With respect to swaps with special entities, the 
Commissions believe it is appropriate that the $25 million gross 
notional value threshold apply during the phase-in period.\458\ In 
light of the available data--and the limitations of that data in 
predicting how the full implementation of Title VII will affect dealing 
activity in the swap markets--the Commissions believe that the 
appropriate threshold for the phase-in period is an annual gross 
notional level of swap dealing activity of $8 billion or less. In 
particular, the $8 billion level should still lead to the regulation of 
persons responsible for the vast majority of dealing activity within 
the swap markets.
---------------------------------------------------------------------------

    \457\ See CFTC Regulation Sec.  1.3(ggg)(4)(i).
    \458\ This limitation regarding swaps with special entities 
during the phase-in period is consistent with the Dodd-Frank Act's 
goal of helping special entities be in a position to benefit from 
the counterparty protections associated with the regulation of 
registered swap dealers under Title VII.
---------------------------------------------------------------------------

    Accordingly, the Commissions believe that while a $3 billion 
notional threshold reflects an appropriate long-term standard based on 
the available data,\459\ it also is appropriate to allow a degree of 
latitude in applying the threshold over time in the event that 
subsequent developments in the markets or the evaluation of new data 
from swap data reporting facilities suggest that the thresholds should 
be adjusted. In particular, the implementation of swap data reporting 
under the Dodd-Frank Act may result in new data that would be useful in 
confirming the Commissions' determination to establish the $3 billion 
threshold which applies after the phase-in period.
---------------------------------------------------------------------------

    \459\ See, e.g., part II.D.4.a, supra.
---------------------------------------------------------------------------

    For these reasons, review of the de minimis exception will comprise 
an important part of the reports that the CFTC is directing its staff 
to conduct with regard to the swap dealer definition during the phase-
in period. Among other topics, the report should consider market data 
addressing swap dealing activity over a period of approximately two 
years, and any resulting changes in swap dealing activity, by dealers 
above and below the $8 billion phase-in threshold, and above and below 
the $3 billion level applicable after the phase-in period. The report 
is required to be completed by the CFTC staff no later than 30 months 
following the date that a swap data repository first receives swap data 
under the CFTC's regulations, and the report will be published for 
public comment.\460\ The CFTC will take this report, in conjunction 
with any public comment on it, into account in weighing further action 
on the de minimis exception at the end of the phase-in period.
---------------------------------------------------------------------------

    \460\ See CFTC Regulation Sec.  1.3(ggg)(4)(ii)(C).
---------------------------------------------------------------------------

    The final rules provide that nine months after publication of its 
staff report, the CFTC may, in its discretion, either promulgate an 
order that the phase-in period will end as of the date set forth by the 
CFTC in that order, or issue for public comment a notice of proposed 
rulemaking to modify the de minimis threshold, in which case the CFTC 
would also issue an order establishing the date that the phase-in 
period will end.\461\ The period of nine months provided in the rule is 
intended to provide the CFTC an opportunity to consider its staff 
report, public comments on the staff report and any other relevant 
information.
---------------------------------------------------------------------------

    \461\ See CFTC Regulation Sec.  1.3(ggg)(4)(ii)(C).
---------------------------------------------------------------------------

    The CFTC recognizes that the determination of the appropriate de 
minimis threshold is a significant issue requiring thorough 
consideration of a variety of regulatory and market factors. At the 
same time, the CFTC recognizes the need for predictability in how the 
de minimis exception will apply. Therefore, the final rules include a 
finality provision, stating that the phase-in period will end no later 
than five years after the date that a swap data repository first 
receives swap data under the CFTC's regulations.\462\
---------------------------------------------------------------------------

    \462\ See CFTC Regulation Sec.  1.3(ggg)(4)(ii)(D).
---------------------------------------------------------------------------

    Persons who are able to avail themselves of the higher de minimis 
threshold that applies during the phase-in period will not be required 
to do so. In particular, a person that is engaged in dealing activity 
involving swaps in excess of the $3 billion threshold may choose to 
commence the process for registering as a swap dealer during the phase-
in period.\463\
---------------------------------------------------------------------------

    \463\ See CFTC Regulation Sec.  1.3(ggg)(4)(vi).
---------------------------------------------------------------------------

d. CFTC Staff Report
    As noted above, the CFTC is directing its staff to report to the 
CFTC as to whether changes are warranted to the rules implementing the 
swap dealer definition, including the rule implementing the de minimis 
exception. We are mindful that following the full implementation of 
Title VII--which itself is contingent on the implementation of the 
dealer definition--more data will be available to the CFTC via swap 
data repositories. We expect that this additional data will assist the 
CFTC in testing the assumptions and addressing the effects of the final 
rule we are adopting to implement the de minimis exception. For 
example, this data should help the CFTC assess, among other things, the 
nature and amount of unregulated dealing activity that occurs under the 
$3 billion threshold. The CFTC will make this report available for 
public comment so that it may benefit from additional input and 
analysis regarding the swap dealer definition.
    By making use of post-implementation data, the staff report 
(together with public comment on the report) will help the CFTC better 
evaluate the exception in light of potential market changes resulting 
from the full implementation of Title VII--including market changes 
resulting from the de minimis exception itself--as part of determining 
whether revised de minimis thresholds would be appropriate. The report 
and public comment thereon will also be taken into consideration by the 
CFTC in determining what action, if any, to take with respect to the 
phase-in period associated with the de minimis exception.
    The final rules provide, moreover, that the CFTC may change the 
requirements of the de minimis exception by rule or regulation.\464\ 
Through this mechanism, the CFTC may revisit the rule implementing the 
exception and potentially change that rule, for example, if data 
regarding the post-implementation swap market suggests that different 
de minimis thresholds would be appropriate.\465\ In determining whether 
to revisit the thresholds, the CFTC intends to pay particular attention 
to whether the de minimis exception results in a swap dealer definition 
that encompasses too many entities whose activities are not

[[Page 30635]]

significant enough to warrant full regulation under Title VII, or, 
alternatively, whether the de minimis exception leads an undue amount 
of dealing activity to fall outside of the ambit of the Title VII 
regulatory framework, or leads to inappropriate reductions in 
counterparty protections (including protections for special entities). 
The CFTC also intends to pay particular attention to whether 
alternative approaches would more effectively promote the regulatory 
goals that may be associated with a de minimis exception.
---------------------------------------------------------------------------

    \464\ CFTC Regulation Sec.  1.3(ggg)(4)(v). CEA section 
1a(49)(D) (like Exchange Act section 3(a)(71)(D)) particularly 
states that the ``Commission''--meaning the CFTC--may exempt de 
minimis dealers and promulgate related regulations. We do not 
interpret the joint rulemaking provisions of section 712(d) of the 
Dodd-Frank Act to require joint rulemaking here, because such an 
interpretation would read the term ``Commission'' out of CEA section 
1a(49)(D) (and Exchange Act section 3(a)(71)(D)), which themselves 
were added by the Dodd-Frank Act.
    \465\ See letter from Greenberger (stating that the dynamic 
nature of the derivatives sector of the financial markets should 
counsel caution, and that the de minimis threshold should be 
reevaluated on an ongoing basis).
---------------------------------------------------------------------------

5. Final Rules--De Minimis Exception to ``Security-Based Swap Dealer'' 
Definition
a. Overview of the Final Rule
    The final rule implementing the de minimis exception to the 
``security-based swap dealer'' definition has been revised from the 
proposal in a number of ways. As discussed above, the final rule does 
not incorporate proposed limits on the number of security-based swaps 
that a person may enter into in a dealing capacity, or on the number of 
security-based swap counterparties a person may have when acting in a 
dealing capacity.\466\ Moreover, the provisions of the exception that 
cap an unregistered person's annual notional dealing activity with 
counterparties other than ``special entities'' have been increased from 
the proposed $100 million threshold.\467\ Instead, the final rule caps 
such dealing activity involving security-based swaps that are credit 
default swaps--which largely would consist of single-name credit 
default swaps--at $3 billion in notional amount over the prior 12 
months.\468\ For other types of security-based swaps (e.g., single-name 
or narrow-based equity swaps or total return swaps), the exception caps 
an unregistered person's dealing activity at $150 million in notional 
amount over the prior 12 months.\469\ Also, as addressed below, the 
final rule provides for phase-in levels in excess of those $3 billion 
and $150 million thresholds for a certain period of time.
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    \466\ See part II.D.3.b, supra.
    \467\ For clarity, the final rule also has been revised from the 
proposal to provide that persons taking advantage of the exception 
``shall be deemed not to be'' dealers (the proposed rule used the 
phrasing ``shall not be deemed to be'' dealers), and to provide that 
such persons ``shall not be subject to Section 15F of the Exchange 
Act and the rules, regulations and interpretations issued 
thereunder.'' See Exchange Act rule 3a71-2(a). The final rule also 
reflects certain structural changes consistent with the substantive 
changes from the proposed rule.
     In addition, as discussed above, see part II.D.3.d, supra, the 
final rule has been revised to provide that the notional thresholds 
to the de minimis exception encompass swap and security-based swap 
dealing positions entered into by an affiliate controlling, 
controlled by or under common control with the person at issue.
    \468\ Exchange Act rule 3a71-2(a)(1)(i). The final rule, like 
the proposal, requires the analysis of de minimis levels to be based 
on effective notional amounts to the extent that the stated notional 
amount is leveraged or enhanced by the structure of the security-
based swap (such as, for example, if the exchange of payments 
associated with an equity swap was based on a multiple of the return 
associated with the underlying equity). See Exchange Act rule 3a71-
2(a)(3).
    It is important to recognize that while these types of de 
minimis principles are relevant to the ``security-based swap 
dealer'' definition, they are not applicable to the general 
definitions of ``broker'' and ``dealer'' under the Exchange Act, or 
the broker-dealer registration requirements of Exchange Act section 
15(a). Unlike the ``security-based swap dealer'' definition, those 
other definitions, with the exception of the bank-broker definition 
in section 3(a)(4)(B)(xi) of the Exchange Act, lack de minimis 
exceptions.
    \469\ Exchange Act rule 3a71-2(a)(1)(ii).
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    In addition, consistent with the proposal, the final rule caps an 
unregistered person's security-based swap dealing activity involving 
counterparties that are ``special entities'' at $25 million in notional 
amount over the prior 12 months.\470\ The final rule further provides 
that the SEC may establish alternative methods of determining the scope 
of the de minimis exception by rule or regulation.\471\
---------------------------------------------------------------------------

    \470\ Exchange Act rule 3a71-2(a)(1)(iii).
    \471\ Exchange Act rule 3a71-2(d); see part II.D.5.f, infra.
---------------------------------------------------------------------------

b. Interests Associated With a De Minimis Exception
    In developing this final rule, we have sought to balance the 
interests advanced by the de minimis exception against the protections 
that would be weakened were the exception applied in an overbroad 
manner. In making this evaluation, we have taken into account data 
regarding the security-based swap market and especially data regarding 
the activity--including activity that may be suggestive of dealing 
behavior--of participants in the single-name credit default swap 
market.\472\
---------------------------------------------------------------------------

    \472\ Certain data has been addressed by an analysis regarding 
the market for single-name credit default swaps performed by the 
SEC's Division of Risk, Strategy, and Financial Innovation. See 
``Information regarding activities and positions of participants in 
the single-name credit default swap market'' (Mar. 15, 2012) 
(available at https://www.sec.gov/comments/s7-39-10/s73910-154.pdf) 
(``CDS Data Analysis''). We believe that the data underlying this 
analysis provides reasonably comprehensive information regarding the 
credit default swap activities and positions of U.S. market 
participants, but note that the data does not encompass those credit 
default swaps that both: (i) do not involve U.S. counterparties; and 
(ii) are based on non-U.S. reference entities. Our reliance on this 
data, which we believe to be the best available, should not be 
interpreted to indicate our views as to the nature or extent of the 
application of Title VII to non-U.S. persons; instead, the SEC 
anticipates that issues regarding the extraterritorial application 
of Title VII will be addressed in a separate release.
    As discussed below, see notes 476 and 485, infra, we also have 
considered more limited publicly available data regarding equity 
swaps.
    The CDS Data Analysis also included an appendix of data 
regarding index credit default swaps. We do not consider that data 
for purposes of the analysis described in this section because the 
statutory definition of ``security-based swap'' in relevant part 
encompasses swaps based on single securities or on narrow-based 
security indices. See Exchange Act sec. 3(a)(68)(A); see also 
Exchange Act Release No. 64372, 76 FR 29818 (May 23, 2011) (proposed 
rules further defining ``security-based swap'' and certain other 
terms).
---------------------------------------------------------------------------

    As discussed above, a de minimis exception eliminates key Title VII 
protections for some market participants by regulating less dealer 
activity. Conversely, an appropriately applied de minimis exception may 
provide an objective test when there is doubt as to whether particular 
activities may cause a person to be deemed to be a dealer; \473\ allow 
non-dealers to accommodate the incidental security-based swap needs of 
existing clients; and help to facilitate competition by allowing the 
entry of new dealers into the market. In addition, as discussed above, 
a de minimis exception may promote regulatory efficiency by providing a 
framework to help focus dealer regulation upon those entities for which 
such regulation is warranted, rather than upon entities that engage in 
relatively limited amounts of dealing activity.\474\
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    \473\ We believe that the application of the dealer-trader 
distinction and the guidance we have provided that distinguishes 
hedging activities from dealing activities in the security-based 
swap market will also help dealers meet their obligations.
    \474\ See part II.D.3.a, supra.
---------------------------------------------------------------------------

i. Providing for Regulatory Coverage of the Vast Majority of Dealing 
Activity
    In seeking to develop a de minimis exception that preserves key 
counterparty and market protections while promoting regulatory 
efficiency, we have considered the comparative amount of security-based 
swap dealing activity that could fall outside the ambit of dealer 
regulation as a result of the exception. In doing so we have considered 
not only the security-based swap market as it currently exists, but 
also how the market reasonably may be expected to change after the full 
implementation of Title VII.
    In performing this comparative exercise we are, in part, drawing 
inferences from the CDS Data Analysis, a dataset released by the SEC 
staff that characterizes nearly all transactions in single-name credit 
default swaps during the 2011 calendar year.\475\ Though the final 
rules apply to all security-based swaps, not just single-name credit

[[Page 30636]]

default swaps, the SEC believes that these data are sufficiently 
representative of the market to help inform the analysis because an 
estimated 95 percent of all security-based swap transactions appear 
likely to be single-name credit default swaps.\476\ The SEC also 
recognizes that although the de minimis exception is applicable to 
persons only with respect to their dealing activity, the CDS Data 
Analysis contains transactions reflecting both dealing activity and 
non-dealing activity, including transactions by persons who may engage 
in no dealing activity whatsoever.\477\
---------------------------------------------------------------------------

    \475\ See note 472, supra.
    \476\ While recognizing that the Commissions have yet to adopt 
final rules defining a ``security-based swap,'' we believe that 
single-name credit default swaps will constitute roughly 95 percent 
of the market, as measured on a notional basis, for instruments that 
will fall within that definition, with certain equity swaps (in 
other words, total return swaps based on single equities or narrow-
based indices of equities) constituting the primary example of 
security-based swaps that are not credit default swaps.
    In particular, according to data published by BIS, the global 
notional amount outstanding in equity forwards and swaps as of June 
2011 was $2.03 trillion, and the notional amount outstanding in 
credit default swaps was approximately $32.4 trillion. See 
Statistical Annex, BIS Quarterly Review (December 2011), at A10 
(available at https://www.bis.org/publ/qtrpdf/r_qs1112.pdf). 
Although the BIS data reflects the global OTC derivatives market, 
and not just U.S. market, we have no reason to believe that these 
ratios differ significantly in the U.S. market. In fact, OCC data 
regarding U.S. entities generally confirms these ratios, in that as 
of June 30, 2011, U.S. commercial banks and trust companies held 
$15.23 trillion in notional outstanding credit derivative positions 
and $677 billion in equity derivative positions, meaning that credit 
derivatives accounted for approximately 95 percent of the total 
credit and equity derivative positions held by these entities. See 
OCC Quarterly Report at tables 1 and 10. Cf. letter from Greenberger 
(referencing OCC data as relevant to determining size of swap 
market).
    \477\ A person that is engaged in security-based swap dealing 
activity, for example, may also engage in proprietary trading 
involving security-based swaps that would be reflected in the 
transaction data. Even accounting for such possibilities, however, 
the SEC believes that the data nonetheless support the broad 
conclusion described below that dealing activity within the 
security-based swap market is highly concentrated.
---------------------------------------------------------------------------

    As described more fully in the CDS Data Analysis, to ascertain 
which entities might be transacting as dealers, and which may not be, 
various criteria were employed as indicia of possible dealing activity. 
In each case, the results suggest the great extent to which there is 
currently a high degree of concentration of potential dealing activity 
in the single-name credit default swap market. For example, using the 
criterion that dealers are likely to transact with many counterparties 
who themselves are not dealers, analysis of 2011 transaction data show 
that only 28 out of 1,084 market participants have three or more 
counterparties that themselves are not recognized as dealers by 
ISDA.\478\ As the data show, 15 of these 28 potential dealers exceeded 
a threshold of $100 billion notional transacted in single-name credit 
swaps during 2011, which accounts for over 98 percent of the 28 
entities' total activity.\479\ At a lower threshold of $10 billion 
notional, 21 of the 28 potential dealers are included (representing 
99.7 percent of the activity of potential dealers), and at an even 
lower threshold of $3 billion notional, 25 potential dealers are 
included (representing 99.9 percent).\480\
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    \478\ See CDS Data Analysis at table 3c. The SEC recognizes that 
the analysis of this transaction data is imperfect as a tool for 
identifying dealing activity, given that the presence or absence of 
dealing activity ultimately turns upon the relevant facts and 
circumstances of an entity's security-based swap transactions, as 
informed by the dealer-trader distinction. Criteria based on the 
number of an entity's counterparties that are not recognized as 
dealers nonetheless appear to be useful for identifying apparent 
dealing activity in the absence of full analysis of the relevant 
facts and circumstances, given that engaging in security-based swap 
transactions with non-dealers would be consistent with the conduct 
of seeking to profit by providing liquidity to others, as 
anticipated by the dealer-trader distinction. In emphasizing this 
criterion for identifying dealing activity, we are not seeking to 
predict with precision how many entities ultimately may register as 
security-based swap dealers. The ultimate number of dealers that may 
register can also be expected to reflect growth in the market, new 
dealing entrants, and in some cases the registration of multiple 
dealing entities within an affiliated group.
    \479\ See CDS Data Analysis at table 3c. In particular, those 15 
entities engaged in a total of $11.01 trillion in notional single-
name credit default swap transactions over 2011, which reflects 98.5 
percent of the total $11.18 trillion in notional transactions over 
2011 for the 28 total identified possible dealers.
    \480\ See id. The 21 possible dealers with a 2011 notional in 
excess of $10 billion account for a total of $11.15 trillion in 
notional single-name credit default swap transactions in 2011, or 
over 99.7 percent of the total. The 25 possible dealers in excess of 
$3 billion account for almost $11.18 in notional transactions in 
2011, or over 99.9 percent of the total.
---------------------------------------------------------------------------

    Other criteria for identifying possible dealing activity based on 
the number of an entity's non-dealer counterparties similarly suggest a 
high degree of concentration of dealing activity within the current 
security-based swap market.\481\ Criteria that consider the number of 
an entity's total single-name security-based swap counterparties,\482\ 
criteria that consider alternative factors for identifying dealing 
activity,\483\ and certain combined criteria \484\ further

[[Page 30637]]

suggest a high concentration of dealing activity within the security-
based swap market.
---------------------------------------------------------------------------

    \481\ For example, two other criteria consider the number of an 
entity's non-dealer counterparties (in those cases identifying as 
dealers those persons that have seven or more, or five or more, 
counterparties not recognized as dealers by ISDA) also indicate that 
potential dealers with notional amounts in excess of $100 billion in 
2011 account for over 98 percent of the notional transactions of all 
entities meeting the applicable criteria in 2011. Potential dealers 
with notional transactions above $10 billion in 2011 (let alone 
those with notional transactions above $3 billion) reflect all or 
virtually the entire notional amount of all dealers identified by 
those criteria. See id. at tables 3a and 3b.
    \482\ The CDS Data Analysis also sought to identify dealing 
activity based on the total number of an entity's counterparties. 
See id. at tables 2a through 2c. Those criteria similarly suggest a 
high degree of concentration of dealing activity within the single-
name credit default swap market:
    i. A criterion that identifies potential dealing activity based 
on an entity having twenty or more counterparties in single-name 
security-based swaps identified 16 possible dealers. Fourteen of 
those entities had notional transactions in excess of $100 billion 
in 2011, reflecting over 99 percent of the total associated with all 
16. The remaining two identified entities had notional transactions 
in excess of $10 billion in 2011. See id. at table 2a.
    ii. A criterion that identifies potential dealing activity based 
on an entity having 15 or more counterparties in single-name 
security-based swaps identified 33 possible dealers. Fifteen of 
those entities had notional transactions in excess of $100 billion 
in 2011, reflecting over 97 percent of the total associated with all 
33. A total of 27 of those entities had notional transactions in 
excess of $10 billion in 2011, and a total of 32 of those entities 
had notional transactions in excess of $3 billion in 2011, both 
reflecting over 99 percent of the total. See id. at table 2b.
    iii. A criterion that identifies potential dealing activity 
based on an entity having 10 or more counterparties in single-name 
security-based swaps identified 154 possible dealers. Fifteen of 
those exceeded $100 billion in notional transactions in 2011, 
reflecting over 90 percent of the total; 49 of those exceeded $10 
billion in notional transactions in 2011, reflecting over 97 percent 
of the total; and 93 exceeded $3 billion in notional transactions in 
2011, reflecting over 99 percent of the total. See id. at table 2c.
    In considering the data we are weighing these criteria less 
heavily than we are weighing the criteria based on the number of 
counterparties who are not identified by ISDA as dealers. This is 
because it is reasonable to foresee a non-dealer making use of 
multiple dealers to get the best possible price or to make use of 
special expertise possessed by certain dealers, meaning that the 
criteria discussed in this footnote are more likely to identify 
entities not engaged in dealing activity.
    \483\ Other criteria in the CDS Data Analysis sought to identify 
dealing activity based on whether an entity maintains a relatively 
flat book. Those criteria also indicated that entities with notional 
transactions in excess of $100 billion in 2011 represented over 97 
percent of the total for all entities identified by those criteria, 
while entities with notional transactions in excess of $10 billion 
in 2011 represented over 99 of the total for all entities identified 
by those criteria. See id. at tables 4 and 5. We are weighing those 
criteria less heavily than we are weighing the counterparty-based 
criteria discussed above because an entity that engages in 
directional trades could also appear to have a flat book if its 
portfolio contained transactions representing various directional 
bets, but of similar aggregate notional sizes on both sides of the 
market. See id. at 3.
     The analysis also included one criterion that considers 
potential dealing activity based on a low propensity to post margin. 
See id. at table 6. While we do not believe that this analysis 
deserves the same degree of weight as the others, given concerns 
about the completeness of the data (see id. at 4), we note that this 
criterion nonetheless also indicates a high concentration of dealing 
activity in the market. See id. at table 6 (indicating that of the 
473 entities identified by this criterion, the 14 entities with 
notional transactions in excess of $100 billion in 2011 account for 
roughly 94 percent of the total notional transaction activity 
associated with all 473 entities over 2011).
    \484\ Finally, the CDS Data Analysis also included criteria that 
identified potential dealing activity based on an entity meeting two 
or three of the other criteria considered. See id. at tables 7 and 
8. These criteria again indicate a high degree of concentration of 
dealing activity in the market. The analysis that addressed whether 
an entity met two of the other criteria identified 92 possible 
dealers, with the 15 entities having notional transactions in excess 
of $100 billion in 2011 representing over 96 percent of the total 
activity of those 92 entities in 2011. See id. at table 7. The 
analysis that addressed whether an entity met three of the other 
criteria identified 41 possible dealers, with the 15 entities having 
notional transactions in excess of $100 billion in 2011, 
representing over 98 percent of the total activity of those 41 
entities in 2011. See id. at table 8.
---------------------------------------------------------------------------

    While less data are available in connection with other types of 
instruments constituting security-based swaps, such as equity swaps, 
the available data similarly suggest a high concentration of positions 
in those instruments among potential dealers.\485\
---------------------------------------------------------------------------

    \485\ For example, OCC data shows that, of the five largest bank 
or trust companies, four have notional equity derivative positions 
of above $1 billion, and that those four entities account for $630 
billion in notional positions out of $677 billion for all U.S. 
commercial banks or trust companies, which constitutes approximately 
93 percent of the total. See OCC Quarterly Report at table 10. 
Similarly, a review of the equity swaps positions of the 50 largest 
U.S. bank holding companies shows that nine bank holding companies 
have notional equity swap positions exceeding $1 billion, and 
account for 99.5 percent of the total positions held by such 
companies, and 29 have no positions in equity swaps. (Data was 
compiled from each bank holding company's FR 9-YC, available at 
https://www.ffiec.gov/nicpubweb/nicweb/Top50Form.aspx). Cf. letter 
from WGCEF V (referencing swap position data from bank holding 
companies' Forms FR Y-9C as relevant to determining size of the swap 
market).
---------------------------------------------------------------------------

    Though inspection of the data does not seem to suggest a single 
precise de minimis threshold, the above analysis of potential dealing 
activity is useful in that it reveals a range of possible thresholds 
from $100 billion to $3 billion that would cover anywhere from 98 
percent through 99.9 percent of the total activity of all potential 
dealers in 2011. However, these thresholds--and their implied market 
coverage ratios--only reflect levels of activity that exist in today's 
highly concentrated market. In order to further narrow the range of 
possible thresholds, and to select an appropriate level for the de 
minimis exception, the analysis must consider the potential state of 
the market as it might reasonably exist after the implementation of 
Title VII.
ii. Avoiding Gaps Resulting From the Regulatory Changes in Conjunction 
With the Exception
    Although the overall portion of security-based swap activity that 
would appear to be subject to dealer regulation based on current 
measures of dealing concentration in the market constitutes an 
important factor to consider in balancing the regulatory burdens and 
benefits associated with a de minimis exception, analysis of the 
current market should not serve as the sole mechanism for setting the 
exception.
    In particular, sole reliance on an approach that focuses on current 
measures of market concentration would not adequately account for 
likely changes to the market associated with the implementation of 
regulation. In part, these changes may be a direct result of the full 
implementation of Title VII--including enhancements to transparency and 
increases in central clearing--as those changes reasonably may be 
expected to reduce the concentration of dealing activity within the 
market over time.\486\ Also, to the extent implementation of Title VII 
permits new dealers to enter the market, the availability of a de 
minimis exception would mean those new dealing entrants would fall 
outside the ambit of dealer regulation, either for the long term or 
until their dealing activity surpasses the applicable notional 
threshold.\487\ Accordingly, de minimis thresholds that are based 
solely on the current state of the market, including the current 
concentration of dealing activity within the market, may reasonably be 
expected to fail to account for the amount of dealing activity that in 
the future could fall outside of the ambit of dealer regulation due to 
the exception.\488\
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    \486\ Cf. Bessembinder and Maxwell, ``Transparency and the 
Corporate Bond Market,'' Journal of Economic Perspectives, Spring 
2008, at 217, 226 (noting that after reporting of U.S. OTC bond 
transactions through the Trade Reporting and Compliance Engine 
(``TRACE'') became mandatory, the portion of trades completed by the 
12 largest dealers fell from 56 percent to 44 percent).
    \487\ We understand that large dealers have competitive 
advantages under the current market, in light of the desire of 
counterparties to engage in security-based swap transactions with 
large, well capitalized and highly rated dealers. See, e.g., Craig 
Pirrong, Rocket Science, Default Risk and The Organization of 
Derivatives Markets, Working Paper, University of Houston (2006) 
(available at https://www.cba.uh.edu/spirrong/Derivorg1.pdf). The 
lower business costs associated with being unregulated may prove to 
partially offset that advantage. At the same time, we reasonably may 
expect that informed counterparties will take into account the lower 
protections--and higher risks--associated with transactions with 
unregulated dealers in determining whether to use regulated or 
unregulated dealers as counterparties.
    \488\ We note that there also are benefits to increased 
competition and a decrease in concentration of dealer activity, as 
contemplated by Title VII, including potentially lower costs for 
market participants and a decrease in systemic risk.
---------------------------------------------------------------------------

    For example, as discussed above, when possible dealers in single-
name credit default swaps are identified by an entity having three or 
more counterparties that are not recognized by ISDA as being dealers, 
entities with notional transactions in excess of $100 billion over a 12 
month period represent over 98 percent of the total activity of all 
such possible dealers over that period, leaving two percent of possible 
dealing activity below that level.\489\ However, a de minimis threshold 
of $100 billion would allow new entrants to commence engaging in 
unregulated dealing in competition with persons who are regulated as 
dealers pursuant to Title VII, which, depending on the number and size 
of such entrants, could significantly decrease the portion of dealing 
activity in the market done by registered dealers (at least until the 
point that new entrants cross the de minimis threshold, if they do at 
all). For example, if 15 new entrants \490\ were to engage in security-
based swap dealing activity up to a $100 billion threshold, the result 
could be that nearly 15 percent of dealing activity within the single-
name credit default swap market would be left outside of the ambit of 
dealer regulation.\491\
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    \489\ See CDS Data Analysis at table 3c; see also note 479, 
supra. As noted above, these amounts may not only reflect dealing 
activity by an entity. Thus, even putting aside the possibility of 
new unregulated entrants into the market, the portion of dealing 
activity in the market that is represented by entities whose 
trailing notional dealing activity exceeds $100 billion may in fact 
be less than 98 percent.
    \490\ The illustrative use of new entrants for purposes of this 
discussion is intended to reflect the potential that new entrants to 
the market could take advantage of a de minimis threshold in a way 
that leads to a higher level of unregulated dealing activity within 
the market. In using this illustration we are not seeking to 
explicitly predict how many new entrants may come into the market in 
response to any particular de minimis threshold, nor are we seeking 
to predict how many new entrants may seek to stay under the de 
minimis thresholds and how many instead would seek to use the 
exception as a step on the way to eventually registering as a 
security-based swap dealer. Rather, we simply are illustrating why 
it is important to account for market changes in connection with 
setting the de minimis threshold.
    The OTC Derivatives Supervisors Group--a group chaired by the 
Federal Reserve Bank of New York and consisting of the CFTC and SEC 
as well as other international supervisors and major over-the-
counter derivatives market participants--currently recognizes 15 
major OTC derivatives dealers. Accordingly, as an illustrative 
example, we have assumed that this number of significant security-
based swap dealers would approximately double--i.e., include 15 new 
dealers--in the wake of the various regulatory changes contemplated 
by the Dodd-Frank Act, many of which may result in increased access 
and competition in the security-based swap market (e.g., enhanced 
priced transparency and increased access to central clearing). 
However, we emphasize that this number has been selected as an 
illustrative example, and have accordingly provided similar examples 
assuming ten and five new entrants.
    \491\ Fifteen new entities that each engage in $100 billion in 
dealing activity would reflect $1.5 trillion in additional dealing 
activity outside the ambit of dealer regulation, which could lead to 
roughly 14.9 percent of total dealing activity being outside the 
ambit of dealing regulation (with that $1.5 trillion being added to 
the existing $168 billion reflected by entities that fall below the 
$100 billion threshold, and that sum divided by $11.18 trillion, 
under the assumption that the new entrants displace business from 
the fifteen entities above the de minimis threshold). To further 
illustrate, under the same assumptions and analysis, the implied 
unregulated market share would be roughly 10.4 percent for ten new 
entities and 6.0 percent for five new entities.
    In certain regards these illustrations, on the one hand, may 
overestimate the effect of new entrants because of the assumption 
that such entrants engage in dealing activities up to, but not 
surpassing, the de minimis threshold. While it is not impossible 
that some entities may seek to use the de minimis exception to 
conduct business as an unregulated niche dealer, it also is 
plausible that entities generally may seek to use the exception to 
commence engaging in dealing activity, with the goal of ultimately 
becoming registered dealers that are not constrained by the de 
minimis threshold.
    On the other hand, these illustrations in certain respects may 
underestimate the amount of dealing activity that can fall outside 
of the regulatory ambit. For example, the amounts of security-based 
swap activity of persons identified in the analysis as dealers may 
not exclusively constitute dealing activity, meaning that persons 
whose notional transactions over a 12-month period exceed a 
particular threshold in fact may not be engaged in that amount of 
dealing activity, and hence may still be able to take advantage of 
the de minimis exception. Also, these illustrations do not seek to 
reflect increased activity by existing dealers that already fall 
below the assumed threshold.

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[[Page 30638]]

    Similarly, a de minimis threshold of $25 billion may also lead to a 
material reduction in the portion of the market covered by registered 
dealers. For example, using the same assumptions as above, 15 new 
entrants up to a $25 billion threshold could leave over four percent of 
dealing activity in the market outside of the ambit of dealing 
regulation.\492\ When other metrics are used to identify possible 
dealing activity, the possibility of a significant regulatory gap 
remains.\493\
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    \492\ Fifteen new entities each engaged in $25 billion in 
dealing activity would reflect $375 billion in additional dealing 
activity outside the ambit of dealer regulation, which could lead to 
4.1 percent of total dealing activity being outside the ambit of 
dealing regulation (with that $375 billion being added to the 
existing $80.2 billion reflected by entities that fall below the $25 
billion threshold, and that sum divided by $11.18 trillion, under 
the assumption that the new entrants displace business from the 
seventeen entities above the de minimis threshold). To further 
illustrate, under the same assumptions and analysis, the implied 
unregulated market share would be 3.0 percent for 10 new entities 
and 1.8 percent for 5 new entities. Obviously, these illustrations 
are subject to the same limitations as are discussed above in the 
context of the $100 million threshold illustration.
    \493\ For example, similar results are obtained when possible 
dealing activity is identified based on whether an entity passes at 
least three of the other metrics discussed above. See CDS Data 
Analysis at table 8. Using the same types of assumptions as are 
discussed above, with fifteen new entities, a de minimis threshold 
of $100 billion could lead to 15.0 percent of dealing activity 
falling outside the ambit of dealer regulation, while a de minimis 
threshold of $25 billion could lead to 4.2 percent of dealing 
activity falling outside of regulation.
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    Overall, it is reasonable to conclude that the higher the de 
minimis threshold, the greater the likelihood that the exception, 
combined with other changes resulting from the implementation of Title 
VII that may encourage new entrants, will lead to a proportionately 
larger amount of unregulated (except with respect to antifraud and 
anti-manipulation prohibitions) dealing activity.\494\ We believe that 
it is reasonable to interpret the statutory language of the de minimis 
exception in a way that prevents a proportionately large amount of 
dealing activity within the security-based swap market from falling 
outside the ambit of dealer regulation. Accordingly, choosing to set a 
lower de minimis threshold from among the range of potential thresholds 
would limit the amount of potential future dealing activity that could 
be transacted without being subject to dealer rules and 
regulations.\495\
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    \494\ As noted above, encouraging new entrants also has benefits 
flowing from increased competition and a decrease in concentration 
of dealer activity. See note 488, supra.
    \495\ For example, 15 new dealer entrants engaged in up to $3 
billion in dealing activity would account for up to $45 billion in 
dealing activity. This result would mean approximately 0.4 percent 
of total potential future dealing activity could be transacted by 
unregistered dealers, as opposed to the potential for approximately 
15 percent of potential future dealing activity to be transacted by 
unregistered dealers if the de minimis were set to $100 billion. See 
CDS Data Analysis at table 3c. As with the illustrative examples 
above, these calculations assume that the new entrants displace 
business from the entities above the de minimis threshold.
---------------------------------------------------------------------------

iii. Promoting Statutory Counterparty Protections
    Sole reliance on an approach based on overall market coverage in 
balancing regulatory burdens and benefits would also threaten to unduly 
discount important counterparty protection interests, as discussed 
above and highlighted in the proposal.\496\ For example, in light of 
data indicating that $5 million constitutes a common notional size for 
a single-name credit default swap position,\497\ a de minimis notional 
threshold of $25 billion annually would permit an unregistered dealer 
to engage in as many as 5000 trades of that size. The counterparties to 
these unregistered dealers would not receive the benefit of the 
protections that Title VII affords to the counterparties of registered 
dealers. These include, among others, the segregation protections 
afforded to persons who post margin to dealers in connection with over-
the-counter security-based swap transactions.\498\ Accordingly, this 
consideration also suggests that choosing a de minimis threshold closer 
to the lower end of the range of potential thresholds would better 
preserve the counterparty protections contemplated by Title VII.
---------------------------------------------------------------------------

    \496\ See part II.D.3.a, supra; see also Proposing Release at 
80180 (highlighting ``customer protection issues raised by swaps and 
security-based swaps--including risks that counterparties may not 
fully appreciate when entering into swaps and security-based 
swaps'').
    \497\ See Federal Reserve Bank of New York staff report, ``An 
Analysis of CDS Transactions: Implications for Public Reporting'' 
(2011) at 8 (stating that for dollar-denominated single name CDS on 
corporate or sovereign reference entities, $5 million represented 
the most common notional size) (available at https://www.newyorkfed.org/research/staff_reports/sr517.pdf); see also 
Proposing Release at 80180 (noting ``that in general the notional 
seize of a small swap or security-based swap is $5 million or 
less'').
    We note, by comparison, that Congress has determined that a de 
minimis amount of securities broker activity by banks entails 500 
trades annually. See Exchange Act section 3(a)(4)(B)(xi) (excluding 
from the ``broker'' definition a bank that annually effects no more 
than 500 securities transactions, other than transactions subject to 
certain other exceptions, so long as the transaction is not effected 
by a bank employee that also is a broker-dealer employee).
    We further note that, while the number of counterparties or 
transactions potentially implicated by unregistered dealing activity 
is an important consideration in establishing an initial de minimis 
level, it does not alter our view, described above, that a single de 
minimis standard based on notional value--rather than the proposal's 
framework of three distinct standards based on notional value, 
number of counterparties, and number of transactions--is an 
appropriate choice in light of concerns expressed by commenters that 
a standard based on the number of transactions or counterparties can 
produce arbitrary results. See part II.D.3.b.ii, supra.
    \498\ Exchange Act section 3E, which was added by section 763(d) 
of the Dodd-Frank Act, provides a series of requirements in 
connection with the segregation of assets held as collateral in 
security-based swap transactions. These include requirements that 
security-based swap dealers and major security-based swap 
participants provide their counterparties with notice that they have 
the right to require segregation, and that such segregation must be 
at an independent third-party custodian.
---------------------------------------------------------------------------

c. Balancing Reflected in the Final Rules--Credit Default Swaps That 
Constitute Security-Based Swaps
    The final thresholds that implement the de minimis exception (and 
corresponding phase-in levels) address security-based swaps that are 
credit default swaps separately from other types of security-based 
swaps, in light of differences in the respective markets.
i. General Threshold for Credit Default Swaps That Constitute Security-
Based Swaps
    We conclude that $3 billion over the prior 12 months constitutes an 
appropriate notional threshold for applying the de minimis exception in 
connection with dealing activity involving credit default swaps that 
constitute security-based swaps.

[[Page 30639]]

    In reaching this conclusion, we recognize the significance of 
comments that supported the proposed $100 million threshold,\499\ and 
that urged caution in raising that proposed threshold,\500\ as well as 
commenters who supported increases to the threshold.\501\ We further 
recognize the importance of applying the de minimis exception in a way 
that promotes regulatory efficiency. We also recognize the range of 
potential thresholds suggested by the data currently available. Based 
on the competing factors described above, we believe that $3 billion 
reflects a reasonable notional threshold--though not necessarily the 
only such threshold.
---------------------------------------------------------------------------

    \499\ See letters from Better Markets I and AFR.
    \500\ See letter from Greenberger.
    \501\ See, e.g., letter from COPE I.
---------------------------------------------------------------------------

    In our view, the currently available data regarding the single-name 
credit default swap market indicates that a notional threshold of $3 
billion would be expected to result in the regulation, as dealers, of 
persons responsible for the vast majority of dealing activity within 
that market, both as of today and, as described above, in the future as 
the benefits of the other Title VII rules are implemented and new 
dealer entrants come to market.\502\
---------------------------------------------------------------------------

    \502\ Of the 28 market participants that have three or more 
security-based swap counterparties that themselves are not 
recognized by dealers by ISDA, 25 had notional single-name credit 
default swap positions in excess of $3 billion in 2011. The 
remaining three entities in total accounted for only $3.59 billion 
in notional transactions in 2011, reflecting less than 0.1 percent 
of the $11.18 trillion total for those 28 market participants. See 
CDS Data Analysis at table 3c.
    The other criteria set forth in the analysis for identifying 
possible dealing activity in general similarly indicate that 
entities with notional transactions in excess of $3 billion in 2011 
account for more than 99 percent of the total notional transactions 
of all identified entities in 2011. See id. at tables 2a-c, 3a-b, 4, 
5, 7 and 8. While the criterion based on the posting of initial 
margin only indicates 98 percent coverage for all of the 473 
identified entities, see id. at table 6, as discussed above we 
believe it is appropriate to provide less weight to that criterion, 
which is based on voluntary reporting.
    As noted above, see note 478, supra, we recognize that the 
underlying market data encompasses all of the security-based swap 
activity of persons identified as dealers, not only their dealing 
activity. Because the thresholds that implement the de minimis 
exception address only a person's dealing activity, this raises the 
possibility that the analysis overstates the extent to which a $3 
billion threshold would encompass persons responsible for dealing 
activity within the single-name security-based swap market. Even 
with that possibility, however, we believe that the data indicates 
such a high concentration of dealing activity within the market that 
it is reasonable to conclude that a $3 billion threshold likely 
would encompass persons responsible for the vast majority of dealing 
activity within the market.
---------------------------------------------------------------------------

    In providing for a $3 billion notional threshold, we also recognize 
the threshold would permit an unregistered dealer annually to engage in 
up to 600 security-based swaps (as opposed to 20 transactions under the 
proposed threshold, assuming a $5 million average notional size). In 
this regard, we note that Congress, in another statutory de minimis 
exception within the Exchange Act, determined that 500 securities 
transactions annually constituted a de minimis amount of transactions 
for banks under the ``broker'' definition.\503\ We further believe that 
a $3 billion threshold appropriately addresses commenter concerns 
regarding the de minimis exception being unduly narrow.\504\
---------------------------------------------------------------------------

    \503\ See Exchange Act section 3(a)(4)(B)(xi); see also letter 
from SIFMA--Regional Dealers (supporting a threshold of 500 trades 
consistent with the statutory de minimis exception in connection 
with bank brokerage activity).
    \504\ For example, $3 billion is equal to the threshold 
suggested by many commenters in the context of the swap market, 
which is much larger than the security-based swap market. See letter 
from COPE (supporting a 0.001 percent notional threshold based on 
the overall swaps market, which would amount to $3 billion). Indeed, 
this $3 billion threshold appears to reflect roughly 0.024 percent 
of the overall market for single-name credit default swaps, a 
percentage that is much greater than the 0.001 percent multiplier 
that a number of commenters (see, e.g., letters cited in note 382, 
supra) suggested in the swap market context. See CDS Data Analysis 
at table 1 (indicating that participants in the single-name credit 
default swap market engage in a total of $12.6 trillion in single-
name credit default swap transactions in 2011).
---------------------------------------------------------------------------

    In adopting this $3 billion threshold, we have carefully considered 
one commenter's view that the CDS Data Analysis suggests that the 
proposed $100 million threshold in fact is too high, and that any 
increase in that proposed $100 million threshold would be arbitrary and 
capricious.\505\ In reaching these conclusions, the commenter focused 
on the number of entities that potentially are engaged in dealing 
activity but that could be excluded based on particular de minimis 
thresholds. For example, the commenter indicated that pursuant to one 
of the CDS Data Analysis's combined metrics for identifying dealing 
activity, a de minimis threshold of $3 billion could lead to the 
exclusion of up to 58 percent of all persons engaged in possible 
dealing activity. The commenter further suggested that some entities 
engaged in dealing activity may reduce their activities to take 
advantage of the de minimis exception and hence reduce liquidity, and 
argued that there would be no basis for the exception to be based on a 
market participant's percentage of total security-based swap 
activity.\506\
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    \505\ See letter from Better Markets III.
    \506\ The letter also raised issues regarding the ``customer'' 
language of the exception and argued that the de minimis exception 
should not represent a risk-based test. We address those issues 
elsewhere. See parts II.D.3.c (regarding ``customer'' language) and 
II.D.3.e (regarding rejection of risk-based and proportionality 
tests), infra.
    In addition, the letter expressed the view that a percentage-
based formula would be difficult to implement, by requiring market 
participants to repeatedly calculate the ratio of their activity to 
total market activity. We concur. The $3 billion threshold we are 
adopting reflects a fixed dollar amount, and does not share the 
complications that would arise from an approach based on a 
particular percentage of the market.
---------------------------------------------------------------------------

    It is important to recognize that while the commenter focused on 
the number of entities that might be excluded pursuant to the 
exception, and suggested that higher notional dollar amount thresholds 
could lead to the exclusion of a larger number of entities, the 
statutory provision for the de minimis exception does not require the 
exemption of a ``de minimis number'' of dealers. The statute instead 
requires the exemption of persons engaged in a ``de minimis quantity'' 
of dealing activity.\507\ The statutory language therefore indicates 
that the focus of the rule implementing the exception should be the 
amount of an entity's dealing activity, not how many entities 
ultimately may be able to take advantage of the exception.
---------------------------------------------------------------------------

    \507\ See Exchange Act section 3(a)(71)(D).
---------------------------------------------------------------------------

    Also, although the commenter implied that there would be no basis 
for the rule implementing the exception to take into account a market 
participant's security-based swap dealing activity compared to total 
dealing activity in the market, for the reasons discussed in this 
section we believe that such an approach can appropriately provide for 
the regulatory coverage of the vast majority of dealing activity in a 
way that promotes regulatory efficiency, without leading to unwarranted 
regulatory gaps. In contrast, in our view the commenter did not 
persuasively articulate a strong rationale for adopting the alternative 
approach proposed in the letter, which would appear to lead to the 
registration of a number of dealers that proportionately engage in a 
very small amount of dealing activity.\508\
---------------------------------------------------------------------------

    \508\ The commenter correctly pointed out that the regulatory 
requirements applicable to registered dealers encompass counterparty 
protection requirements, and that the de minimis exception should 
not defeat those requirements. We recognize that the implementation 
of the exception should take those counterparty protections into 
account, and we have sought to do so. We do not believe, however, 
that those important counterparty protection goals require a de 
minimis approach that focuses on the number of entities that would 
be excluded, in lieu of the statutory focus on whether a particular 
entity engages in a de minimis quantity of dealing activity.
---------------------------------------------------------------------------

    In support of its approach, the commenter emphasized data regarding 
persons who meet certain combined criteria outlined in the CDS Data

[[Page 30640]]

Analysis. As discussed above, we believe that criteria based on the 
number of an entity's counterparties that are not recognized as dealers 
deserve special weight due to the potential consistency of those 
criteria with the dealer-trader distinction.\509\ Identifying dealer 
activity using those criteria does not support the view that a $3 
billion threshold would lead to the exclusion of a large number of 
entities engaged in dealing activity.\510\
---------------------------------------------------------------------------

    \509\ See notes 478, 482, and 483, supra.
    \510\ For example, the CDS Data Analysis identifies:
     Three possible dealers with notional transactions below 
$3 billion in 2011--out of a total of 28 possible dealers--when 
possible dealing activity is based on having three or more 
counterparties that themselves are not identified as dealers;
     One possible dealer with notional transactions below $3 
billion in 2011- out of a total of 20 possible dealers--when 
possible dealing activity is based on having five or more 
counterparties that themselves are not identified as dealers; and
     Zero possible dealers with notional transactions below 
$3 billion in 2011--out of a total of 16 possible dealers--when 
possible dealing activity is based on having seven or more 
counterparties that themselves are not identified as dealers.
    See CDS Data analysis at tables 3c, 3b and 3a.
    In addition, as described above, an approach focused on the 
quantity of activity is supported by relatively consistent results 
depending on which criterion from the CDS Data Analysis is applied--
i.e., each criterion shows a high amount of concentration and a 
commensurately low quantity of activity below the $3 billion 
threshold. By contrast, applying different criteria results in very 
different numbers of entities excluded under any specified 
threshold, suggesting that an approach focused on the number of 
entities may be highly dependent on how the possible dealing 
activity of those entities is defined.
---------------------------------------------------------------------------

    Finally, we also are not persuaded by the commenter's suggestion 
that a number of entities engaged in dealing activity would reduce 
those activities to take advantage of a $3 billion de minimis 
threshold, and hence reduce liquidity in the market by five percent. To 
reach that figure, the commenter needed to exclude the vast majority of 
dealing activity in the market.\511\ While we recognize that it is 
possible that current market participants may adjust their dealing 
activity in light of the de minimis threshold, and that this 
potentially could reduce the liquidity provided by certain entities, we 
also recognize that the de minimis exception has the potential to 
promote liquidity by facilitating new entrants into the market.
---------------------------------------------------------------------------

    \511\ In particular, in arguing that this incentive would reduce 
liquidity by five percent, the commenter excluded all business done 
by entities within the top two brackets (i.e., above $100 billion 
notional), on the grounds that those entities ``are assumed to 
transact mostly with larger entities.'' Based on the criteria on 
which the commenter relied, those 15 entities are responsible for 
over 96 percent of the activity of all possible dealers. See CDS 
Data Analysis at tables 7 and 8. Absent that exclusion, the 
estimated reduction of liquidity would amount to a small fraction of 
a percent.
---------------------------------------------------------------------------

ii. Phase-in Period in Connection With Dealing Activity Involving 
Credit Default Swaps That Constitute Security-Based Swaps
    The final rules further provide that persons with notional dealing 
activity of $8 billion or less over the prior 12 months involving 
credit default swaps that constitute security-based swaps would be able 
to avail themselves of a phase-in period.\512\ Those persons would not 
be subject to the generally applicable compliance date that occurs no 
later than 60 days following publication of these final rules in the 
Federal Register.\513\
---------------------------------------------------------------------------

    \512\ Exchange Act rule 3a71-2(a)(2).
    \513\ Even with the general 60 day compliance period, however, 
market participants will not necessarily be security-based swap 
dealers at the end of 60 days. In particular, for the first year 
following the effective date of the final rules implementing the 
definition of ``security-based swap'' pursuant to the Exchange Act 
section 3(a)(68), the de minimis analysis would only address 
security-based swap dealing activity following that effective date. 
See Exchange Act rule 3a71-2(a)(1). Among other things, this means 
that until the rules defining ``security-based swap'' are effective, 
no market participants would be deemed to be security-based swap 
dealers.
---------------------------------------------------------------------------

    The use of a phase-in period--in connection with a person's status 
as a security-based swap dealer and in connection with the other 
regulatory requirements that are appurtenant to dealer status--is 
intended to facilitate the orderly implementation of Title VII. In 
addition, the phase-in period will afford the SEC additional time to 
study the security-based swap market as it evolves in the new 
regulatory framework and will allow potential dealers that engage in 
smaller amounts of activity (relative to the current size of the 
market) additional time to adjust their business practices, while at 
the same time preserving the focus of the regulation on the largest and 
most significant dealers. The SEC also recognizes that the data 
informing its current view of the de minimis threshold is based on the 
market as it exists today, and that the market will evolve over the 
coming years in light of the new regulatory framework and other 
developments.
    Accordingly, while the SEC believes that a $3 billion notional 
threshold reflects an appropriate long-term standard based on the 
currently available data,\514\ it also is appropriate to provide for a 
phase-in period for those entities with $8 billion or less in dealing 
activity, because subsequent developments in the market or the 
evaluation of new data from the security-based swap reporting 
facilities contemplated by the Dodd-Frank Act may suggest that the 
threshold should be increased or decreased. In particular, the 
implementation of security-based swap data reporting under the Dodd-
Frank Act will result in significant new data and afford an opportunity 
to review the Commission's determination to establish a $3 billion 
threshold.
---------------------------------------------------------------------------

    \514\ See note 502, supra.
---------------------------------------------------------------------------

    For these reasons, an important part of the report that the SEC is 
directing its staff conduct with regard to the definitions of 
``security-based swap dealer'' and ``major security-based swap 
participant'' (described in detail below) will be a consideration of 
the operation of the de minimis exception following the full 
implementation of Section 15F under Title VII.\515\ The SEC will take 
into account this report, along with public comment on the report, in 
determining whether to propose any changes to the rule implementing the 
de minimis exception, including any increases or decreases to the $3 
billion threshold. The report will be linked to the availability of 
data regarding the activity of regulated security-based swap market 
participants in that it must be completed no later than three years 
\516\ following a ``data collection initiation date'' that is the later 
of: the last compliance date for the registration and regulatory 
requirements for security-based swap dealers and major security-based 
swap participants under Section 15F of the Exchange Act; or the first 
date on which compliance with the trade-by-trade reporting rules for 
credit-related and equity-related security-based swaps to a registered 
security-based swap data repository is required.\517\
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    \515\ See Exchange Act rule 3a71-2A(a)(1); see also part V, 
infra.
    \516\ See Exchange Act rule 3a71-2A(b).
    \517\ The SEC will announce the data collection initiation date 
on its Web site and publish it in the Federal Register. See Exchange 
Act rule 3a71-1(a)(2)(iii).
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    In light of the available data--and the limitations of that data in 
predicting how the full implementation of Title VII will affect dealing 
activity in the security-based swap market--the SEC believes that $8 
billion constitutes an appropriate level for the availability of the 
phase-in period. The available data indicate that such a level 
generally comports with the balance of interests that informed the 
determination of the appropriate long-term threshold of $3 billion 
described above. In particular, the $8 billion level should still lead 
to the regulation of persons responsible for the vast majority of 
dealing activity

[[Page 30641]]

within the market.\518\ In addition, we do not believe that providing a 
phase-in period for persons with notional dealing activity over the 
prior 12 months of less than $8 billion would lead to a risk of an 
undue portion of the market falling outside of the ambit of dealer 
regulation, even after considering the potential entry of unregulated 
new dealers into the market.\519\
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    \518\ Of the 28 market participants that have three or more 
security-based swap counterparties that themselves are not 
recognized by dealers by ISDA, 23 had notional single-name credit 
default swap transactions in excess of $8 billion in 2011. The 
remaining five entities in total accounted for only $12.3 billion in 
notional transactions in 2011, reflecting roughly 0.1 percent of the 
$11.18 total for the 28 market participants. See CDS Data Analysis 
at table 3c. Only two of the 28 entities identified as possible 
dealers by that criterion had annual notional transactions between 
$3 billion and $8 billion in 2011.
    Most of the other criteria set forth in the analysis for 
identifying possible dealing activity in general similarly indicate 
that entities with notional transactions in excess of $8 billion in 
2011 account for more than 99 percent of the total notional 
transactions of all identified entities that year. See id. at tables 
2a-b, 3a-b, 4 and 5. While the criterion based on an entity having 
10 or more counterparties only indicates 98 percent coverage for all 
of the 154 identified entities at an $8 billion transaction level, 
see id. at table 2c, as noted above this criterion may identify 
persons who in reality are not engaged in dealing activity. See note 
482, supra. Also, while the criterion based on the posting of 
initial margin only indicates 97 percent coverage for all of the 473 
identified entities at an $8 billion transaction level, see id. at 
table 6, as discussed above that criterion is based on voluntary 
reporting.
    \519\ For example, 15 new dealer entrants up to $8 billion in 
annual notional dealing activity would account for $120 billion in 
dealing activity. This would amount to roughly 1.2 percent of the 
total notional single-name security-based swap activity over 12 
months of entities identified as possible dealers by virtue of 
having three or more counterparties that are not recognized by 
dealers by ISDA. See CDS Data Analysis at table 2c.
---------------------------------------------------------------------------

    The final rule provides that the phase-in period will continue 
until the ``phase-in termination date'' that the SEC will publish on 
its Web site and in the Federal Register.\520\ In particular, the rule 
provides that nine months following publication of that report, and 
after giving due consideration of the report and associated public 
comment, the SEC may either: (1) Terminate the phase-in period and by 
order establish and publish the phase-in termination date; or (2) 
determine that it is necessary or appropriate in the public interest to 
propose an alternative de minimis threshold, in which case the SEC, by 
order published in the Federal Register, will provide notice of that 
determination and establish the phase-in termination date.\521\ If the 
SEC does not establish the phase-in termination date in either of those 
ways, the phase-in termination date shall automatically occur in any 
event on what would be a date certain, which will be five years 
following the data collection initiation date.\522\
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    \520\ Exchange Act rule 3a71-2(a)(2)(i).
    \521\ Exchange Act rule 3a71-2(a)(2)(iii)(A).
    \522\ Exchange Act rule 3a71-2(a)(2)(iii)(B).
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    These provisions should allow sufficient time for the staff to 
complete its report, for the SEC to receive and review public comment 
on the report, and for the SEC to draw conclusions regarding 
establishing the phase-in termination date or proposing potential 
changes to the rule implementing the de minimis exception, in a way 
that also promotes the orderly and predictable termination of the 
phase-in period.\523\
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    \523\ This approach balances the fact that the SEC believes that 
its $3 billion and $150 million de minimis thresholds are 
appropriate in light of the currently available data and the 
market's need for a degree of certainty as to the length of this 
phase-in period, on the one hand, against the possibility that the 
staff report and the accompanying public comment may demonstrate 
that revision to these thresholds is necessary, on the other hand.
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    This phase-in period will not be available in connection with the 
$25 million threshold for dealing activity involving special entities, 
discussed below. In addition, the final rule provides that this phase-
in period will not be available in connection with security-based swap 
dealing activities involving natural persons, other than natural 
persons who qualify as ECPs by virtue of CEA section 1a(18)(A)(xi)(II), 
which addresses natural persons who have $5 million or more invested on 
a discretionary basis and who enter into a security-based swap to 
manage the risk associated with their assets and liabilities.\524\ 
These limitations to the availability of the phase-in period are 
consistent with the Dodd-Frank Act's goal of helping special entities 
be in a position to benefit from the counterparty protections 
associated with the regulation of registered security-based swap 
dealers under Title VII, as well as the SEC's mandate to protect 
participants in the securities markets.
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    \524\ See Exchange Act rule 3a71-2(a)(2)(i). In other words, the 
phase-in period will still be available in connection with dealing 
activities with natural persons who are ECPs because they have 
entered into a security-based swap for hedging purposes. While we 
recognize the importance of Title VII protections to natural persons 
who engage in security-based swap activity, we also recognize the 
benefit of facilitating such persons' use of security-based swaps as 
hedges. Accordingly, persons who engage in dealing activity with 
natural persons who are ECPs under other provisions of the ECP 
definition will be subject to the applicable de minimis threshold 
for all of their dealing activity, without the availability of the 
phase-in period.
    Persons who engage in dealing activity with natural persons who 
are not ECPs will fall within the Exchange Act definition of 
``dealer,'' which has no de minimis exception. See Exchange Act 
section 3(a)(5)(A) (generally excluding dealers in security-based 
swaps from the Exchange Act definition of ``dealer,'' unless the 
counterparty is not an ECP).
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    Persons who are able to avail themselves of the phase-in period, of 
course, will not be required to do so. Any person that chooses to 
register with the SEC as a security-based swap dealer shall be deemed 
to be a security-based swap dealer subject to all applicable regulatory 
requirements for such registrants, regardless of whether the person 
engages in security-based swap dealing activity in an amount that is 
below the applicable de minimis threshold or phase-in level.\525\
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    \525\ See Exchange Act rule 3a71-2(e).
---------------------------------------------------------------------------

d. Balancing Reflected in the Final Rules--Other Types of Security-
Based Swaps
    The final rule provides that the de minimis exception for dealing 
activity involving security-based swaps other than credit default swaps 
will be based on a threshold of $150 million notional over the prior 12 
months.\526\ In addition, a phase-in period will be available in 
connection with persons whose dealing activity involving those 
instruments is $400 million or less in notional amount over the prior 
12 months.
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    \526\ Exchange Act rule 3a71-2(a)(1)(ii). The proposal requested 
comment on whether different segments of the security-based swap 
market should be treated differently. See Proposing Release at 80101 
(``Commenters further are requested to address * * * whether the [de 
minimis] exemption's factors should vary depending on the type of 
swap or security-based swap at issue.'').
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    These amounts reflect roughly one-twentieth of the corresponding 
amounts associated with the exception for credit default swaps that 
constitute security-based swaps. As discussed above, while less data is 
available regarding other types of security-based swaps than is 
available regarding single-name credit default swaps, the available 
data is consistent in indicating that those other types of security-
based swaps on a notional basis currently comprise roughly one-
twentieth of the total amount of instruments that will be expected to 
constitute security-based swaps.\527\ In light of this significantly 
smaller market, we believe that a $3 billion notional threshold would 
threaten to cause an overly large portion of dealing activity within 
the market to fall outside the ambit of dealer regulation.
---------------------------------------------------------------------------

    \527\ See note 476, supra.
---------------------------------------------------------------------------

    In this regard, we note that it is likely that there are fewer 
barriers to entry in connection with acting as a dealer in security-
based swaps such as equity swaps and total return swaps on debt than 
there are in connection with acting as a dealer in single-name credit 
default

[[Page 30642]]

swaps.\528\ We also note that because equity swaps and total return 
swaps on debt can serve as close economic proxies for equity and debt 
securities, an overly broad de minimis threshold in connection with 
such instruments could threaten to undermine the Exchange Act framework 
for regulating persons who act as dealers in equity and debt.
---------------------------------------------------------------------------

    \528\ For example, persons registered with the SEC as broker-
dealers in connection with other types of securities would appear to 
be well positioned to act as dealers in connection with equity 
swaps, as such broker-dealers already would be expected to have 
systems in place to enter into equity positions to hedge their 
equity swap dealing positions.
---------------------------------------------------------------------------

    At the same time--notwithstanding the smaller scope of this market 
and the lesser availability of data regarding dealing activity within 
the market--we do not believe that it is necessary to make the de 
minimis exception unavailable in connection with dealing activity 
involving security-based swaps that are not credit default swaps. In 
this regard we particularly note that the limited available data 
regarding equity swaps suggests a high degree of concentration in 
dealing activity involving those instruments,\529\ which indicates that 
an appropriately sized de minimis threshold can be expected to promote 
regulatory efficiency.
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    \529\ As noted above, four commercial banks and trust companies 
accounted for 93 percent of all equity positions held by such 
companies as of June 30, 2011, and nine bank holding companies 
accounted for over 99 percent of all equity positions held by the 
fifty largest such companies as of December 2011. See note 485, 
supra.
---------------------------------------------------------------------------

    Balancing those factors, we conclude that a $150 million annual 
notional threshold is appropriate to implement the de minimis exception 
in connection with security-based swaps that are not credit default 
swaps, consistent with our understanding of the comparative size of 
that market as applied to the threshold applicable to credit default 
swap dealing activity. For reasons similar to those described above, we 
conclude that there should be a phase-in period available to persons 
whose annual notional dealing activity in connection with security-
based swaps that are not credit default swaps is no more than $400 
million in annual 12-month notional amount. This phase-in period is 
subject to the same limitations regarding transactions involving 
special entities and natural persons as apply to the phase-in period 
for credit default swaps. It also will be subject to the same 
provisions regarding the termination of the phase-in period as apply in 
connection with credit default swaps.\530\ The comparative lack of data 
involving these markets--in contrast to the market for single-name 
credit default swaps--particularly highlights how the use of a phase-in 
period that is linked to the availability of post-implementation data 
is appropriate.\531\
---------------------------------------------------------------------------

    \530\ See Exchange Act rule 3a71-2(a)(2); see also notes 520 
through 522, supra, and accompanying text.
    \531\ The SEC expects that the staff report should be especially 
helpful for providing data regarding dealing activity in connection 
with those other types of security-based swaps to consider the 
impact of the termination of the phase-in period, as well as 
potential changes to the de minimis exception in connection with 
these instruments.
---------------------------------------------------------------------------

    As above, a person who is eligible to take advantage of the phase-
in period in connection with these types of security-based swaps may 
nonetheless register as a security-based swap dealer.
e. Dealing Activity Involving Special Entities
    Consistent with the proposal, the final rules in general will cap 
an entity's dealing activity involving security-based swaps at no more 
than $25 million notional amount over the prior 12 months when the 
counterparty to the security-based swap is a special entity.\532\ There 
will be no phase-in period in connection with transactions involving 
special entities. In adopting this threshold, we recognize the serious 
concerns raised by commenters that stated that the de minimis exception 
should not permit any dealing activities involving special entities in 
light of losses that special entities have incurred in the financial 
markets,\533\ as well as the special protection that Title VII affords 
special entities.\534\
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    \532\ Exchange Act rule 3a71-2(a)(1)(iii).
    \533\ See letters from AFR and Better Markets I.
    \534\ In this regard we note that Title VII authorizes the SEC 
to impose special business conduct requirements when a security-
based swap dealer is counterparty to a special entity. See Exchange 
Act section 15F(h)(5). In proposing rules to implement these 
requirements, the SEC requested comment regarding the scope of the 
``special entity'' definition, including, for example, regarding 
whether the SEC should interpret ``special entity'' to exclude a 
collective investment vehicle in which one or more special entities 
have invested. See Exchange Act Release No. 64766 (June 29, 2011), 
76 FR 42396, 42422 (July 18, 2011). For purposes of interpreting 
this special entity threshold to the de minimis exception--
particularly with regard to when a special entity would be a 
counterparty to a person that is engaged in dealing activity--the 
SEC believes that it will be appropriate to be guided by final 
interpretations regarding when a dealer will be a counterparty to a 
special entity for purposes of those business conduct requirements.
---------------------------------------------------------------------------

    At this time, the final rule does not fully exclude such dealing 
activity from the exception, in light of the potential benefits that 
may arise from a de minimis exception. In this way, the threshold would 
not completely foreclose the availability of security-based swaps to 
special entities from unregistered dealers--as $25 million would 
annually accommodate up to five single-name credit default swaps of a 
$5 million notional size--but the threshold would limit the financial 
and other risks associated with those positions for a special entity, 
which would in turn limit the possibility of inappropriately 
undermining the special protections that Title VII provides to special 
entities.
    In reaching this conclusion we recognize that special entities do 
participate in the single-name credit default swap market, given that 
an analysis of market data indicates that in 2011 special entities were 
parties to over $40 billion in single-name credit default swap 
transactions.\535\ At the same time, the impact of this $25 million 
threshold--particularly concerns that the threshold may foreclose the 
ability of special entities to access dealers in the market--appears to 
be mitigated by the fact that the counterparties to those special 
entities tend to engage in notional transactions in single-name credit 
default swap well in excess of the general de minimis standards.\536\ 
In light of the underlying counterparty protection issues, we see no 
basis to distinguish between types of security-based swaps in setting 
this special entity threshold.
---------------------------------------------------------------------------

    \535\ See CDS Data Analysis at table 9.
    \536\ See id. at n.8 (noting that the average notional activity 
of those 16 counterparties was $680 billion, with the lowest being 
approximately $9 billion).
---------------------------------------------------------------------------

    For similar reasons, in the future as we consider whether to amend 
the de minimis exception we expect to pay particular attention to 
whether the threshold for transactions involving special entities 
should further be lowered.
f. Future Revisions to the Rule
    As noted above and described in detail below in part V, the SEC is 
directing its staff to report on whether changes are warranted to the 
rules and interpretations implementing the security-based swap dealer 
definition, including the rule implementing the de minimis 
exception.\537\ The SEC will take the report and associated public 
comment into account in determining whether to propose any changes to 
the rule implementing the exception.\538\ Consistent with that 
possibility, the final rule provides that the SEC may change the 
requirements of the de minimis exception by rule or regulation.\539\ 
Through this mechanism,

[[Page 30643]]

the SEC may revisit the rule implementing the exception and potentially 
change that rule, for example, if data regarding the security-based 
swap market following the implementation of Section 15F under Title VII 
suggests that different de minimis thresholds would be 
appropriate.\540\ In determining whether to revisit the thresholds, the 
SEC intends to pay particular attention to whether the de minimis 
exception results in a dealer definition that encompasses too many 
entities whose activities are not significant enough to warrant full 
regulation under Title VII, or, alternatively, whether the de minimis 
exception leads an undue amount of dealing activity to fall outside of 
the ambit of the Title VII regulatory framework, or leads to 
inappropriate reductions in counterparty protections (including 
protections for special entities). The SEC also intends to pay 
particular attention to whether alternative approaches would more 
effectively promote the regulatory goals that may be associated with a 
de minimis exception.
---------------------------------------------------------------------------

    \537\ See Exchange Act rule 3a71-2A(a)(1).
    \538\ See notes 520 through 522, supra, and accompanying text.
    \539\ Exchange Act rule 3a71-2(d). Exchange Act section 
3(a)(71)(D) particularly states that the ``Commission''--meaning the 
SEC--may exempt de minimis dealers and promulgate related 
regulations. We do not interpret the joint rulemaking provisions of 
section 712(d) of the Dodd-Frank Act to require joint rulemaking 
here, because such an interpretation would read the term 
``Commission'' out of Exchange Act section 3(a)(71)(D), which itself 
was added by the Dodd-Frank Act.
    \540\ See letter from Greenberger (stating that the dynamic 
nature of the derivatives sector of the financial markets should 
counsel caution, and that the de minimis threshold should be 
reevaluated on an ongoing basis).
---------------------------------------------------------------------------

6. Registration Period for Entities That Exceed the De Minimis Factors
    The de minimis exception raises implementation issues akin to those 
associated with the major participant definition, in that both 
provisions use tests that have retrospective elements to determine 
whether an entity must register and be subject to future regulation. As 
a result, some commenters have suggested that entities that surpass the 
de minimis thresholds should be able to take advantage of a grace 
period to undertake the process of registering as swap dealers or 
security-based swap dealers.\541\ Otherwise, absent such a ``roll-in'' 
period, entities whose dealing activities surpass the relevant de 
minimis factors would immediately be in violation of dealer 
registration requirements. In light of these concerns, and the interest 
of avoiding undue market disruptions, the Commissions believe that it 
is appropriate to provide entities that exceed applicable the de 
minimis factors a period of time to register as dealers.
---------------------------------------------------------------------------

    \541\ See letters from Northland Energy and WGCEF I.
---------------------------------------------------------------------------

    Accordingly, the final rules have been revised from the proposal to 
provide for a timing standard that is similar to what we are using in 
connection with the major participant definition.\542\ That is, if an 
entity that has relied on the de minimis exception no longer is able to 
rely on the exception because its dealing activity exceeds a relevant 
threshold, the entity would have two months, following the end of the 
month in which it no longer is able to take advantage of the exception, 
to submit a completed application to register as a swap dealer or 
security-based swap dealer.\543\
---------------------------------------------------------------------------

    \542\ Compare CFTC Regulation Sec.  1.3(hhh)(3); Exchange Act 
rule 3a67-8(a) (providing that persons who meet the criteria to be 
major participants will have two months to submit a completed 
registration application).
    \543\ See CFTC Regulation Sec.  1.3(ggg)(4)(ii); Exchange Act 
rule 3a71-2(b). As discussed below with regard to the implementation 
period for the major participant definitions, persons will have 
additional time to comply with the applicable requirements following 
the submission of a completed application. See part IV.L.3, infra.
---------------------------------------------------------------------------

    Also, akin to the major participant definitions,\544\ a person 
registered as a swap dealer or security-based swap dealer may apply to 
withdraw that registration, while continuing to engage in a limited 
amount of dealing activity in reliance on the de minimis exception, if 
that person has been registered as a dealer for at least 12 
months.\545\ This should help ensure that persons do not rapidly move 
in and out of dealer status based on short-term fluctuations in their 
swap or security-based swap activities.
---------------------------------------------------------------------------

    \544\ Compare CFTC Regulation Sec.  1.3(hhh)(5); Exchange Act 
rule 3a67-8(c) (providing that a major participant may be deemed to 
no longer be a major participant if its swap or security-based swap 
positions are below the relevant thresholds for four quarters).
    \545\ See CFTC Regulation Sec.  1.3(ggg)(4)(ii); Exchange Act 
rule 3a71-2(c). Consistent with this approach, moreover, the final 
rule has been revised from the proposal to clarify that the de 
minimis exception in general is not available to a registered swap 
dealer or security-based swap dealer. See CFTC Regulation Sec.  
1.3(hhh)(1)(i); Exchange Act rule 3a71-2(a)(1) (revised language 
clarifying availability of exception to a person that is not a swap 
dealer or security-based swap dealer).
---------------------------------------------------------------------------

    The final rules implementing the de minimis exception do not 
provide any reevaluation period for entities that engage in a level of 
dealing activity above the de minimis thresholds, in contrast to the 
major participant definitions.\546\ We do not believe that there is an 
appropriate basis for such a provision, particularly given that dealer 
regulation addresses customer protection and market operation and 
transparency concerns apart from risk concerns.
---------------------------------------------------------------------------

    \546\ Compare CFTC Regulation Sec.  1.3(hhh)(4); Exchange Act 
rule 3a67-8(b) (providing for a reevaluation period in connection 
with the major participant definitions when a person does not exceed 
any applicable threshold by more than 20 percent in a calendar 
quarter).
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E. Limited Purpose Designation as a Dealer

1. Proposed Approach
    The definitions of the terms ``swap dealer'' and ``security-based 
swap dealer'' provide that the Commissions may designate a person as a 
dealer for one type, class or category of swap or security-based swap, 
or specified swap or security-based swap activities, without the person 
being considered a dealer for other types, classes, categories or 
activities.\547\
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    \547\ CEA section 1a(49)(B); Exchange Act section 3(a)(71)(B).
---------------------------------------------------------------------------

    In the Proposing Release, we noted that these provisions represent 
permissive grants of authority that do not require the Commissions to 
provide limited designations.\548\ We further stated that a person that 
is covered by the definitions of the terms ``swap dealer'' or 
``security-based swap dealer'' would be considered a dealer for all 
types, classes or categories of the person's swaps or security-based 
swaps, or activities involving swaps or security-based swaps, in light 
of the difficulty of seeking to separate a person's dealing activities 
from their non-dealing activities involving swaps or security-based 
swaps, unless such person sought and received designation as a dealer 
for only specified categories of swaps or security-based swaps, or 
specified activities.\549\ We explained that this would provide persons 
the opportunity to seek a limited designation based on applicable facts 
and circumstances, and that we anticipated that a dealer could seek a 
limited designation at the time of its initial registration or 
later.\550\
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    \548\ See Proposing Release, 75 FR at 80182.
    \549\ See id.; see also proposed CFTC Regulation Sec.  
1.3(ggg)(3); proposed Exchange Act rule 3a71-1(c).
    \550\ See Proposing Release, 75 FR at 80182.
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    In the Proposing Release, the CFTC further noted that non-financial 
entities such as physical commodity firms potentially may conduct 
dealing activity through a division rather than through a separately 
incorporated subsidiary, and that such an entity's swap dealing 
activity would not be a core component of its overall business. The 
CFTC added that if this type of entity registered as a dealer, certain 
swap dealer requirements would apply to the dealing activities of the 
division, but not necessarily to the swap activities of other parts of 
the entity.\551\
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    \551\ See id.

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[[Page 30644]]

2. Commenters' Views
    A number of commenters addressed the limited designation of dealers 
in conjunction with the limited designation of major participants. Many 
of the issues those commenters raised thus are relevant to both sets of 
definitions.
a. Presumption of Full Designation
    A number of commenters objected to the proposed presumption that an 
entity would be designated as a dealer (or major participant) for all 
categories of swaps or security-based swaps and all of the person's 
activities connected to swaps or security-based swaps. Several 
commenters argued that this approach would be contrary to Congressional 
intent,\552\ conflict with the statutory language,\553\ or conflict 
with underlying policy concerns.\554\ One commenter suggested that the 
Commissions lack the statutory authority to apply swap dealer 
requirements to an entity's non-swap dealing activities.\555\
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    \552\ See letters from Cargill Incorporated (``Cargill''), CDEU 
and Investment Company Institute (``ICI'') dated February 22, 2011 
(``ICI I'').
    \553\ See letters from MetLife and WGCEF I.
    \554\ See letter from Cargill (stating that limited designation 
promotes the policy of encouraging non-financial firms that 
primarily are engaged in non-dealing businesses to continue to 
conduct limited dealing activities, adding that such firms ``do not 
present the potential systemic risks of financial firms,'' and that 
their full designation as dealers would discourage them from 
providing risk management products).
    \555\ See letter from EDF Trading.
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b. Potential Types of Limited Designations
    A number of commenters addressed potential types of limited 
designations. One expressed support for limited swap dealer 
designations for particularized business units and for particular swap 
categories,\556\ while another requested that limited swap dealer 
designations be available based on any reasonable commercial 
groupings.\557\ Some commenters urged that limited dealer designations 
should be available for the branches or business units of foreign swap 
dealers and security-based swap dealers with U.S.-based customers or 
U.S. business lines.\558\
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    \556\ See letter from Capital One.
    \557\ See letters from NCGA/NGSA II (particularly referring to 
groupings based on individual physical commodities) and WGCEF dated 
June 9, 2011 (``WGCEF VII'') (limited designation should permit 
firms to structure organization of limited purpose registrans as 
appropriate in particular circumstances).
    \558\ See letters cited in note 148, supra.
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c. Applications for Limited Designations
    A number of commenters addressed issues relating to the application 
process for limited designations. Some commenters supported the ability 
of a person to apply for limited designations at the time of initial 
registration,\559\ while one commenter sought clarification on how and 
when a person could apply for limited swap dealer status.\560\ Some 
commenters suggested that entities should be considered to have a 
provisional limited designation upon the filing of a completed 
application for limited dealer designation.\561\
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    \559\ See letters from MFA I (specifically requesting that the 
rules provide that an entity can receive a limited purpose 
designation at the time of their initial registration) and FSR I.
    \560\ See letter from National Futures Association (``NFA'').
    \561\ See letters from Capital One, Farm Credit Council I and 
FHLB I.
---------------------------------------------------------------------------

    Some commenters requested further clarification as to what factors 
or criteria would be considered relevant to limited designation 
determinations.\562\ One commenter stated that non-financial companies 
should have a presumption of limited swap dealer designation under 
certain circumstances.\563\ Another commenter took the view that 
commercial firms should be able to determine whether to register a 
legal entity or a division as a dealer.\564\ One commenter suggested 
the analysis consider the complexity of an entity's dealing and non-
dealing activities, and further suggested that limited designations 
should automatically be available if an entity's dealing activities do 
not exceed 50 percent of its total swap activities.\565\ Commenters 
also raised issues related to how a person's status as a financial or a 
non-financial entity affects a person's eligibility for limited 
designations.\566\
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    \562\ See letters from BG LNG I and ISDA I.
    \563\ See letter from Cargill (arguing that a firm should be 
presumptively entitled to limited swap dealer status if: it is a 
non-financial company; its non-dealing activities include (but need 
not be limited to) production, merchandising or processing of 
physical commodities; the firm's dealing activities take place in a 
separately identifiable division or business unit with separate 
management; and dealing revenues are less than 30 percent of the 
firm's total revenues in the firm's most recent fiscal year).
    \564\ See letter from WGCEF VII (stating that so long as a 
registered swap dealer bears the onus of demonstrating compliance 
with regulatory requirements, regulators ``should not dictate'' 
whether the firm registers a legal entity or a division as a dealer; 
also requesting guidance as to how applicable regulatory 
requirements may apply to a subdivision of a legal entity that 
registers as a dealer, and requesting a safe harbor from enforcement 
action when a decision to register only a particular desk or 
division as a dealer is made in good faith).
    \565\ See letter from Capital One.
    \566\ Compare letter from Capital One (stating that all market 
participants, including financial institutions, should be allowed to 
apply for limited swap dealer designations) with letter from Cargill 
(suggesting that an entity's status as a financial company should be 
relevant to limited dealer determinations).
---------------------------------------------------------------------------

d. Application of Regulatory Requirements to Limited Dealers
    Commenters also addressed issues related to the application of 
regulatory requirements to limited dealers. One commenter recommended 
that dealer regulatory requirements generally should apply only to a 
division undertaking limited dealing activities; that commenter further 
stated that capital requirements should be calculated based only on the 
activities of that division, while recognizing that capital must be 
held by the entity as a whole.\567\ Other commenters argued that 
capital and margin requirements should only be applied to an entity on 
a limited basis.\568\
---------------------------------------------------------------------------

    \567\ See letter from Cargill.
    \568\ See letter from FSR I (recommending that to the extent 
that capital requirements are tied to swap activity or exposures, 
that only activities or exposures in the designated category be 
reflected in the calculation).
---------------------------------------------------------------------------

e. Miscellaneous Issues
    One commenter recommended that non-financial entities that are 
deemed to be limited dealers (or major participants) be permitted to be 
treated as end-users for the aspects of their businesses that are not 
subject to the limited designation.\569\ The commenter further 
suggested that the swaps ``push-out'' rule requirements of section 716 
of the Dodd-Frank Act be interpreted so that an insured depository 
institution that is a limited purpose dealer would only have to push 
out the dealing portion of its swap business, and be allowed to retain 
the other aspects of its swaps business.\570\ One commenter requested 
clarification as to whether a person that is a limited purpose dealer 
in connection with one category of swap could be a major participant in 
connection with another category (in light of the statutory language 
excluding dealers from the major participant definitions).\571\
---------------------------------------------------------------------------

    \569\ See id. (recommending that the corporate treasurer of an 
entity with a limited designation as a swap dealer for ``other 
commodity swaps'' as a result of its energy derivatives activity be 
able to hedge the entity's interest rate and currency risk without 
being subject to the business conduct, reporting, recordkeeping or 
other rules applicable to dealers and major participants).
    \570\ See id.
    \571\ See letter from NFA. As discussed below, see 752, infra, a 
person who is designated as a dealer in connection with particular 
types of swaps or security-based swaps may be major participants 
with regard to other types.
---------------------------------------------------------------------------

3. Final Rules and General Principles
    Consistent with the proposal, the final rules retain the 
presumption that a

[[Page 30645]]

person who meets one of the dealer definitions will be deemed to be a 
dealer with regard to all of its swaps or security-based swaps 
activities, unless the CFTC or SEC exercises its authority to limit the 
person's designation as a dealer to specified categories of swaps or 
security-based swaps, or specified activities.\572\ As discussed in the 
Proposing Release, moreover, a person may apply for a limited 
designation when it submits a registration application, or at a later 
time.\573\ The final rules also contain a technical change from the 
proposed rules to clarify that limited designations may be based on a 
particular type, class or category of swap or security-based-swap.\574\
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    \572\ CFTC RegulationSec.  1.3(ggg)(3); Exchange Act rule 3a71-
1(c).
    \573\ The SEC expects to address the process for submitting an 
application for limited designation as a security-based swap dealer, 
along with principles to be used by the SEC in analyzing such 
applications, as part of separate rulemakings.
    \574\ The rules particularly have been revised from the proposal 
to add ``type'' and ``class'' language to supplement the use of the 
term ``category.'' This change is consistent with the statutory 
language. In addition, the final rules related to limited 
designations for ``security-based swap dealers'' corrects an 
erroneous reference to major participant designation.
---------------------------------------------------------------------------

a. Default Presumption of Full Designation
    Consistent with the proposal, the final rules retain the standard 
that a person that satisfies the ``swap dealer'' or ``security-based 
swap dealer'' definition in general would be considered a dealer for 
all types, classes or categories of the person's swaps or security-
based swaps, or all activities involving swaps or security-based swaps.
    The Commissions are not persuaded by the suggestion that this 
presumption is inconsistent with the statute, legislative intent or 
underlying policy. Not only is the relevant statutory language written 
as a grant of authority rather than a specific mandate to designate 
certain entities as limited purpose dealers, but the presumption also 
reasonably reflects the difficulty of separating a dealer's dealing 
activities from its non-dealing activities, and the challenges of 
applying dealer regulatory requirements to only a portion of a dealer's 
swap or security-based swap activities.\575\
---------------------------------------------------------------------------

    \575\ This approach also is consistent with the treatment of 
dealers of other types of securities under the Exchange Act. When a 
person's securities activities cause them to be a ``dealer'' for 
purposes of the Exchange Act, the statutory requirements and 
regulations applicable to dealers will apply to all of that person's 
securities activities, regardless of whether particular activities 
would not have caused the entity to fall within the ``dealer'' 
definition. For example, Exchange Act section 15(c)(3)(A) prohibits 
brokers and dealers from engaging in certain securities-related 
activity in contravention of SEC-prescribed rules with respect to 
financial responsibility or related practices. This provision does 
not distinguish between those activities that cause a person to fall 
within the ``broker'' or ``dealer'' definitions, and other 
activities that themselves do not cause that person to be a broker 
or dealer. The SEC's authority extends to all securities activities 
by those brokers or dealers.
---------------------------------------------------------------------------

    We similarly are not persuaded by the view that the Commissions 
lack the authority to apply dealer regulation to non-dealing activities 
of a registered swap dealer or security-based swap dealer.\576\ Certain 
of the statutory requirements applicable to swap dealers and security-
based swap dealers--such as capital requirements--simply do not 
distinguish between a person's dealing activities and their non-dealing 
activities.\577\ In other words, absent a limited designation, the 
statutory requirements applicable to dealers address the regulation of 
all of a dealer's swap or security-based swap activities.\578\
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    \576\ See letter from EDF Trading.
    \577\ See, e.g., CEA section 4s(e); Exchange Act section 15F(e).
    \578\ The substantive regulations applicable to dealers, of 
course, can account for the nature of a dealer's particular swap or 
security-based swap activities.
     The SEC also intends to address limited designation issues in 
the context of a separate release addressing the application of 
Title VII to non-U.S. entities.
---------------------------------------------------------------------------

b. Demonstration of Compliance With Dealer Requirements
    The Commissions will consider limited purpose applications on an 
individual basis through analysis of the unique circumstances of each 
applicant, given that the types of entities that engage in swap or 
security-based swap dealing are diverse and their organization and 
activities are varied.\579\
---------------------------------------------------------------------------

    \579\ Consistent with this approach, applications to limit a 
person's dealer designation to ``specified categories'' of swaps or 
security-based swaps (see CFTC Regulation Sec.  1.3(ggg)(3); 
Exchange Act rule 3a71-1(c)), would not be required to interpret the 
term ``category'' consistently with the use of that term in 
connection with the major participant definitions. CFTC Regulation 
Sec.  1.3(iii) and Exchange Act rule 3a67-2, defining the terms 
``major swap category'' and ``major security-based swap category,'' 
respectively, do not apply for this purpose.
---------------------------------------------------------------------------

    Regardless of the type of limited designation being requested, the 
Commissions will not designate a person as a limited purpose dealer 
unless it can demonstrate that it can fully comply with the 
requirements applicable to dealers.
    Certain of the statutory requirements applicable to dealers 
particularly focus on the entity's swap or security-based swap 
activities and positions. These include, among other aspects, 
requirements related to trading records, documentation and 
confirmations.\580\ An applicant for a limited purpose designation 
would have to demonstrate how it would satisfy those transaction-
specific requirements in the context of a limited designation.
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    \580\ See, e.g., CEA section 4s(h)(3), Exchange Act section 
15F(h)(3) (business conduct standards, including disclosure 
requirements, for dealers); CEA section 4s(g), Exchange Act section 
15F(g) (daily trading record requirements for dealers); CEA section 
4s(i); Exchange Act section 15F(i) (documentation requirements for 
dealers).
---------------------------------------------------------------------------

    Other statutory requirements applicable to dealers particularly 
focus on the entity itself. These include requirements related to 
registration, capital, risk management, supervision, and chief 
compliance officers.\581\ Here too, an applicant for a limited purpose 
designation would have to demonstrate how it would satisfy those 
requirements in the context of limited designations.
---------------------------------------------------------------------------

    \581\ See, e.g., CEA section 4s(a)(1), Exchange Act section 
15F(a)(1) (registration requirements for dealers); CEA section 
4s(e), Exchange Act section 15F(e) (capital and margin requirements 
for dealers). The Dodd-Frank Act provides that in setting the 
capital requirements for swap dealers and security-based swap 
dealers (as well as major participants) that are subject to a 
limited designation, the Commissions and the prudential regulators 
must take into account the risks associated with other types, 
classes, or categories of swaps or security-based swaps engaged in, 
and the other swap or security-based swap activities conducted by, 
that person ``that are not otherwise subject to regulation 
applicable to that person by virtue of the status of the person'' as 
a dealer or major participant. See CEA section 4s(e)(2)(C); Exchange 
Act section 15F(e)(2)(C). In the case of a commercial agricultural 
or energy company that obtains a limited purpose designation for a 
particular business unit, the CFTC does not expect that this 
provision will generally require the limited purpose designee to 
calculate its required capital on the basis of swaps engaged in, or 
activities conducted by, other business units within the company, to 
the extent those swaps or activities do not generate risk beyond the 
agricultural or energy company's ordinary commercial line of 
business.
---------------------------------------------------------------------------

    A limited purpose designation might be appropriate, for example, 
where a commercial agricultural company is a dealer in swaps related to 
a thinly-traded commodity, such as a particular fertilizer, but is not 
a dealer in, and does not wish to be subject to the swap dealer 
requirements with respect to its swaps that relate to broadly-traded 
commodities like corn or wheat (or where, say, a commercial energy 
company is a dealer in swaps involving a commodity to be delivered at a 
particular location and does not wish to be subject to the swap dealer 
requirements for its swaps involving that commodity to be delivered at 
other locations, for which it is not a swap dealer). A limited 
designation might also be appropriate so that the swap dealer 
requirements do not apply to interest rate or currency swaps that the 
agricultural or energy company enters into in managing its financial 
risk.

[[Page 30646]]

    A limited purpose designee could be a particular business unit 
within a company. Additionally, a limited designation might be 
considered to ``split the desk'' by applying the swap dealer 
requirements solely to the designee's limited activities involving 
swaps not entered into for the purpose of hedging a physical position 
as defined in CFTC Regulation Sec.  1.3(ggg)(6)(iii). Any particular 
limited purpose application will be analyzed in light of the unique 
circumstances presented by the applicant.
    A key challenge that any applicant to a limited dealer designation 
will face is the need to demonstrate full compliance with the 
requirements that apply to the type, class or category of swap or 
security-based swap, or the activities involving swaps or security-
based swaps, that fall within the swap dealer designation.

III. Amendments to the Definition of Eligible Contract Participant

A. Background

    The Dodd-Frank Act makes it unlawful for a person that is not an 
eligible contract participant (``ECP'') to enter into a swap other than 
on, or subject to the rules of, a DCM.\582\ In addition, section 763(e) 
of the Dodd-Frank Act makes it unlawful for a person to effect a 
transaction in a security-based swap with or for a person that is not 
an ECP unless the transaction is effected on a national securities 
exchange registered with the SEC.\583\ Moreover, section 768(b) of the 
Dodd-Frank Act makes it unlawful for a person to offer to sell, offer 
to buy or purchase, or sell a security-based swap to a person that is 
not an ECP unless a registration statement under the Securities Act of 
1933 (``Securities Act'') \584\ is in effect with respect to that 
security-based swap.\585\ These provisions mean that persons can engage 
in neither swaps nor security-based swaps transactions with persons 
that are not ECPs on SEFs, on security-based SEFs, or on a bilateral, 
off-exchange basis.
---------------------------------------------------------------------------

    \582\ In particular, section 723(a)(2) of the Dodd-Frank Act 
adds new subsection (e) to CEA section 2 (7 U.S.C. 2(e)), providing 
that ``[i]t shall be unlawful for any person, other than an eligible 
contract participant, to enter into a swap unless the swap is 
entered into on, or subject to the rules of, a board of trade 
designated as a contract market under section 5.''
    \583\ In particular, section 763(e) of the Dodd-Frank Act adds 
paragraph (l) to Exchange Act section 6 (15 U.S.C. 78f(l)), 
providing that ``[i]t shall be unlawful for any person to effect a 
transaction in a security-based swap with or for a person that is 
not an eligible contract participant, unless such transaction is 
effected on a national securities exchange registered pursuant to 
subsection (b).''
    \584\ 15 U.S.C. 77a et seq.
    \585\ In particular, section 768(b) of the Dodd-Frank Act adds 
paragraph (d) to Securities Act section 5 (15 U.S.C. 77e(d)), 
providing that ``[n]otwithstanding the provisions of section 3 or 4, 
unless a registration statement meeting the requirements of section 
10(a) is in effect as to a security-based swap, it shall be unlawful 
for any person, directly or indirectly, to make use of any means or 
instruments of transportation or communication in interstate 
commerce or of the mails to offer to sell, offer to buy or purchase 
or sell a security-based swap to any person who is not an eligible 
contract participant as defined in section 1a(18) of the Commodity 
Exchange Act (7 U.S.C. 1a(18)).'' The Commissions note that market 
participants must make the determination of ECP status with respect 
to the parties to transactions in security-based swaps and mixed 
swaps prior to the offer to sell or the offer to buy or purchase the 
security-based swap or mixed swap.
---------------------------------------------------------------------------

    The Dodd-Frank Act also amended the ECP definition by: \586\ (i) 
Providing that, for purposes of CEA sections 2(c)(2)(B)(vi) and 
2(c)(2)(C)(vii), the term ECP does not include a commodity pool in 
which any participant is not itself an ECP; (ii) raising the monetary 
threshold that governmental entities may use to qualify as ECPs, in 
certain situations, from $25 million in investments owned and invested 
on a discretionary basis to $50 million in investments owned and 
invested on a discretionary basis; \587\ and (iii) replacing the 
``total asset'' standard for individuals to qualify as ECPs with an 
``amounts invested on a discretionary basis'' standard.\588\
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    \586\ See Sections 741(b)(10) and 721(a)(9) of the Dodd-Frank 
Act; see also Financial Regulatory Reform, A New Foundation: 
Rebuilding Financial Supervision and Regulation, available at https://www.treasury.gov/initiatives/Documents/FinalReport_web.pdf, at 48-
49 (June 17, 2009).
    \587\ See CEA section 1a(18)(A)(vii), 7 U.S.C. 1a(18)(A)(vii).
    \588\ See CEA section 1a(18)(A)(xi), 7 U.S.C. 1a(18)(A)(xi). The 
Dodd-Frank Act did not amend the monetary thresholds for individuals 
to qualify as ECPs. As such, an individual can qualify as an ECP if 
such individual has amounts invested on a discretionary basis, the 
aggregate of which is in excess of (i) $10,000,000, or (ii) 
$5,000,000 if such individual also enters into the agreement, 
contract, or transaction in order to manage the risk associated with 
an asset owned or liability incurred, or reasonably likely to be 
owned or incurred, by such individual.
---------------------------------------------------------------------------

    Commodity pools may, among other things, enter into transactions 
involving foreign currency. ECP status is important for commodity pools 
that enter into the following types of foreign currency transactions 
(such commodity pools, ``Forex Pools''): (i) Off-exchange foreign 
currency futures; (ii) off-exchange options on foreign currency 
futures; (iii) off-exchange options on foreign currency; (iv) leveraged 
or margined foreign currency transactions; and (v) foreign currency 
transactions that are financed by the offeror, the counterparty or a 
person acting in concert with the offeror or counterparty on a similar 
basis.\589\ In some cases, discussed below in detail, if a Forex Pool 
does not satisfy the ECP definition applicable to commodity pools 
engaging in the types of foreign currency transactions noted above 
\590\ and it engages in these types of foreign currency transactions 
(such transactions, ``retail forex transactions'' and such commodity 
pools, ``Retail Forex Pools''), the transactions will be subject to a 
regulatory regime that imposes certain requirements and restrictions on 
the counterparties to the Retail Forex Pool, and, if the Retail Forex 
Pool engages in retail forex transactions other than with certain 
counterparties, on the commodity pool operator (``CPO'') who operates 
the Retail Forex Pool. These requirements and restrictions do not apply 
if the Forex Pool satisfies the ECP definition applicable to commodity 
pools engaging in the types of foreign currency transactions noted 
above.
---------------------------------------------------------------------------

    \589\ See CEA sections 2(c)(2)(B)(vi) and 2(c)(2)(C)(vii), 7 
U.S.C. 2(c)(2)(B)(vi) and 7 U.S.C. 2(c)(2)(C)(vii). In this context, 
the term ``off-exchange'' means other than on or subject to the 
rules of an organized exchange, as defined in CEA section 1a(37), 7 
U.S.C. 1a(37).
    \590\ See CEA section 1a(18)(A)(iv), 7 U.S.C. 1a(18)(A)(iv); see 
also CFTC Regulation Sec.  1.3(m)(5) (exporting the look-through 
language of CEA section 1a(18)(A)(iv) to CEA section 1a(18)(A)(v)). 
The Dodd-Frank Act amended the ECP definition to include a provision 
that specifically applies to Forex Pools engaging in these types of 
foreign currency transactions. See Section 741(b)(10) of the Dodd-
Frank Act (adding a provision to CEA section 1a(18)(A)(iv), 7 U.S.C. 
1a(18)(A)(iv), stating ``provided, however, that for purposes of 
section 2(c)(2)(B)(vi) and section 2(c)(2)(C)(vii), the term 
`eligible contract participant' shall not include a commodity pool 
in which any participant is not otherwise an eligible contract 
participant.''). See part III.B below for a discussion of this 
provision. This provision applies only with respect to retail forex 
transactions. This means that a Retail Forex Pool, as defined above, 
that is not an ECP for retail forex transaction purposes could be an 
ECP for other transactions it enters into that are not retail forex 
transactions.
---------------------------------------------------------------------------

    The Commissions are adopting further definitions of the term 
``eligible contract participant'' in the following six respects: (i) 
Generally prohibiting a Forex Pool from qualifying as an ECP if such 
Forex Pool directly enters into retail forex transactions \591\ and has 
one or more direct participants that are not ECPs; \592\ (ii) 
clarifying that, in determining whether a direct participant in a Forex 
Pool is an ECP, the indirect participants in the Forex Pool will not be 
considered unless such Forex Pool, a commodity pool holding a direct or 
indirect (through one or more intermediate tiers of pools) interest in

[[Page 30647]]

such Forex Pool, or any commodity pool in which such Forex Pool holds a 
direct or indirect interest has been structured to evade Subtitle A of 
Title VII of the Dodd-Frank Act; \593\ (iii) prohibiting a commodity 
pool from qualifying as an ECP unless it has total assets exceeding $5 
million and is operated by a person described in CEA section 
1a(18)(A)(iv)(II);\594\ (iv) explicitly including swap dealers, 
security-based swap dealers, major swap participants, and major 
security-based swap participants in the definition of ECP; (v) 
permitting a non-ECP to qualify as an ECP, with respect to certain 
swaps, based on the collective net worth of its owners, subject to 
several conditions, including that the owners are ECPs; and (vi) 
permitting a Forex Pool to qualify as an ECP notwithstanding that it 
has one or more direct participants that are not ECPs if the Forex Pool 
(a) is not formed for the purpose of evading regulation under CEA 
sections 2(c)(2)(B) or (C) or related rules, regulations or orders, (b) 
has total assets exceeding $10 million and (c) is formed and operated 
by a registered CPO or by a CPO who is exempt from registration as such 
pursuant to Sec.  4.13(a)(3). In addition, the Commissions are issuing 
interpretive guidance regarding the definition of ECP to correct an 
inaccurate statutory cross-reference with respect to the ability of 
government entities to qualify as ECPs under CEA section 
1a(18)(A)(vii).\595\ The Commissions also are issuing interpretive 
guidance with respect to the ECP status of Forex Pools whose 
participants are limited solely to non-U.S. persons and which are 
operated by CPOs located outside the United States, its territories or 
possessions.
---------------------------------------------------------------------------

    \591\ In many commodity pool structures, this is the master fund 
alone.
    \592\ But see note 652, infra, with respect to single level 
Forex Pools using retail forex transactions solely to hedge.
    \593\ Section 721(c) of the Dodd-Frank Act requires the CFTC to 
adopt a rule to further define the terms ``swap,'' ``swap dealer,'' 
``major swap participant,'' and ``eligible contract participant,'' 
in order ``[t]o include transactions and entities that have been 
structured to evade'' subtitle A of Title VII (or an amendment to 
the CEA made by subtitle A).
    \594\ 7 U.S.C. 1a(18)(A)(iv)(II).
    \595\ 7 U.S.C. 1a(18)(A)(vii).
---------------------------------------------------------------------------

    The Commissions note that commenters raised interpretive and other 
issues related to the ECP definition that the Commissions may consider 
in the future.\596\
---------------------------------------------------------------------------

    \596\ These issues include: (i) The ECP status of jointly and 
severally liable borrowers and counterparties, non-ECPs guaranteed 
by ECPs, and non-ECP swap collateral providers; (ii) whether bond 
proceeds count toward the ``owns and invests on a discretionary 
basis $50,000,000 or more in investments'' element of the 
governmental ECP prong (CEA section 1a(18)(A)(vii), 7 U.S.C. 
1a(18)(A)(vii)); (iii) the relationship between the ECP and eligible 
commercial entity definitions for purposes of CEA section 
1a(18)(A)(vii), 7 U.S.C. 1a(18)(A)(vii); (iv) the scope of the 
``proprietorship'' element of the entity prong of the ECP definition 
in CEA section 1a(18)(A)(v), 7 U.S.C. 1a(18)(A)(v) (which the 
Commissions are addressing to a limited extent in the discussion of 
the new line of business ECP category in part III.F, infra, and in 
Regulation Sec.  1.3(m)(7)(ii)(C) under the CEA); (v) the meaning of 
the new ``amounts invested on a discretionary basis'' element of the 
individual prong of the ECP definition (CEA section 1a(18)(A)(xi), 7 
U.S.C. 1a(18)(A)(xi)); (vi) whether persons can be ECPs in 
anticipation of receiving, but before they have, the necessary 
assets; and (vii) that swap dealers are not among the entities 
listed in CEA section 2(c)(2)(B)(i)(II), 7 U.S.C. 2(c)(2)(B)(i)(II), 
as acceptable counterparties to non-ECPs engaging in retail forex 
transactions.
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B. Commodity Pool Look-Through for Retail Forex Transactions

1. Statutory Provisions
    Prior to the Dodd-Frank Act, clause (A)(iv) of the ECP definition 
provided that a commodity pool was an ECP if it had $5 million in total 
assets and was operated by a person regulated under the CEA, regardless 
of whether each participant in the commodity pool was itself an 
ECP.\597\ Section 741(b)(10) of the Dodd-Frank Act added a proviso to 
clause (A)(iv) \598\ stating that a Forex Pool will not qualify as an 
ECP, solely for purposes of CEA sections 2(c)(2)(B)(vi) or 
2(c)(2)(C)(vii) (i.e., retail forex transactions) if any participant in 
the Forex Pool is itself not an ECP.\599\
---------------------------------------------------------------------------

    \597\ Clause (A)(iv) of the pre-Dodd-Frank Act ECP definition 
also included a commodity pool operated by a foreign person 
performing a similar role or function as a person regulated under 
the CEA and subject as such to foreign regulation (regardless of 
whether the foreign person was itself an ECP).
    \598\ The proviso states ``provided, however, that for purposes 
of section 2(c)(2)(B)(vi) and section 2(c)(2)(C)(vii), the term 
`eligible contract participant' shall not include a commodity pool 
in which any participant is not otherwise an eligible contract 
participant.'' CEA section 1a(18)(A)(iv); 7 U.S.C. 1a(18)(A)(iv).
    \599\ See CEA section 1a(18)(A)(iv), 7 U.S.C. 1a(18)(A)(iv). In 
other words, the proviso in section 1a(18)(A)(iv) does not reference 
or implicate ECP status for purposes of (i) CEA section 2(e), 7 
U.S.C. 2(e) (which, as discussed above, permits non-ECPs to trade 
swaps only on or subject to the rules of a DCM); (ii) Securities Act 
section 5(d) (which, as discussed above, makes it unlawful for a 
person to offer to sell, offer to buy or purchase, or sell a 
security-based swap to a person that is not an ECP unless a 
registration statement under the Securities Act is in effect with 
respect to that security-based swap); or (iii) Exchange Act section 
6(l) (which as discussed above, makes it unlawful for a person to 
effect a transaction in a security-based swap with or for a person 
that is not an ECP unless the transaction is effected on a national 
securities exchange registered with the SEC). The look-through 
proviso does not expressly state that indirect participants, as well 
as direct participants, in the Forex Pool must be ECPs for the Forex 
Pool to be an ECP. But see notes 636 and 638, infra (discussing the 
authority for such an approach).
---------------------------------------------------------------------------

    Thus, for purposes of retail forex transactions, the Dodd-Frank Act 
imposed a requirement to ``look through'' a Forex Pool--meaning that 
ECP status would be limited to Forex Pools in which each participant is 
itself an ECP. This is important for two reasons. First, a Forex Pool 
that does not qualify as an ECP can enter into a retail forex 
transaction described in CEA section 2(c)(2)(B)(i)(I) only with one of 
the federally-regulated counterparties enumerated in CEA sections 
2(c)(2)(B)(i)(II)(aa) (U.S. financial institutions),\600\ (bb) (certain 
brokers, dealers and their associated persons),\601\ (cc) (certain 
futures commission merchants (``FCMs'') and their affiliated 
persons),\602\ (dd) (certain financial holding companies) \603\ or (ff) 
(certain retail foreign exchange dealers (``RFEDs'')) \604\ (each an 
``Enumerated Counterparty'' and collectively ``Enumerated 
Counterparties''); the counterparty restriction does not apply to 
retail forex transactions described in CEA section 2(c)(2)(C)(i)(I)(bb) 
\605\ entered into by a Forex Pool that does not qualify as an ECP, 
though such transactions are subject to antifraud protections and 
related enforcement provisions if entered into with a

[[Page 30648]]

counterparty other than an Enumerated Counterparty described in CEA 
section 2(c)(2)(B)(i)(II)(aa), (bb) or (dd).\606\ Second, the operator 
of a Retail Forex Pool engaging in retail forex transactions with an 
Enumerated Counterparty that is an FCM, specified affiliated person of 
an FCM or RFED must register with the CFTC as a CPO,\607\ unless the 
CPO also is an Enumerated Counterparty under 2(c)(2)(B)(i)(II)(aa), 
(bb) or (dd) \608\ or an exemption from CPO registration applies.\609\ 
Moreover, CEA section 2(c)(2)(E)(ii)(I),\610\ which was added by 
section 742(c)(2) of the Dodd-Frank Act, prohibits an Enumerated 
Counterparty from entering into retail forex transactions described in 
CEA section 2(c)(2)(B)(i)(I) with a person that is not an ECP ``except 
pursuant to a rule or regulation of [the appropriate Federal regulator 
of such Enumerated Counterparty allowing such transactions] under such 
terms and conditions as [such regulator] shall prescribe.'' CEA section 
2(c)(2)(E)(iii)(II) \611\ requires that such rules or regulations treat 
similarly all agreements, contracts, and transactions in foreign 
currency that are functionally or economically similar to CEA section 
2(c)(2)(B)(i)(I) agreements, contracts, and transactions.
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    \600\ 7 U.S.C. 2(c)(2)(B)(i)(II)(aa). The term ``financial 
institution'' is defined in CEA Section 1a(21), 7 U.S.C. 1a(21).
    \601\ 7 U.S.C. 2(c)(2)(B)(i)(II)(bb). This category is comprised 
of each:
    (AA) [] broker or dealer registered under section 15(b) (except 
paragraph (11) thereof) or 15C of the Securities Exchange Act of 
1934 (15 U.S.C. 78o(b), 78o-5); [and] (BB) [ ] associated person of 
a broker or dealer registered under section 15(b) (except paragraph 
(11) thereof) or 15C of the Securities Exchange Act of 1934 (15 
U.S.C. 78o(b), 78o-5) concerning the financial or securities 
activities of which the broker or dealer makes and keeps records 
under section 15C(b) or 17(h) of the Securities Exchange Act of 1934 
(15 U.S.C. 78o-5(b), 78q(h)).
    \602\ 7 U.S.C. 2(c)(2)(B)(i)(II)(cc). This category is comprised 
of each:
    (cc)(AA) []futures commission merchant that is primarily or 
substantially engaged in the business activities described in 
section 1a of this Act, is registered under this Act, is not a 
person described in item (bb) of this subclause, and maintains 
adjusted net capital equal to or in excess of the dollar amount that 
applies for purposes of clause (ii) of this subparagraph; [and] (BB) 
[ ] affiliated person of a futures commission merchant that is 
primarily or substantially engaged in the business activities 
described in section 1a of this Act, is registered under this Act, 
and is not a person described in item (bb) of this subclause, if the 
affiliated person maintains adjusted net capital equal to or in 
excess of the dollar amount that applies for purposes of clause (ii) 
of this subparagraph and is not a person described in such item 
(bb), and the futures commission merchant makes and keeps records 
under section 4f(c)(2)(B) of this Act concerning the futures and 
other financial activities of the affiliated person.
    \603\ 7 U.S.C. 2(c)(2)(B)(i)(II)(dd). The enumerated 
counterparty in this category is ``a financial holding company (as 
defined in section 2 of the Bank Holding Company Act of 1956).''
    \604\ 7 U.S.C. 2(c)(2)(B)(i)(II)(ff). This category is comprised 
of each:
    retail foreign exchange dealer that maintains adjusted net 
capital equal to or in excess of the dollar amount that applies for 
purposes of clause (ii) of this subparagraph and is registered in 
such capacity with the [CFTC], subject to such terms and conditions 
as the [CFTC] shall prescribe, and is a member of a futures 
association registered under section 17 [of the CEA].
    \605\ 7 U.S.C. 2(c)(2)(C)(i)(I)(bb).
    \606\ The counterparty limitation with respect to CEA section 
2(c)(2)(B)(i)(I) retail forex transactions is a function of the fact 
that the CEA's exchange-trading requirement generally applies with 
respect to foreign currency futures, foreign currency options on 
futures, and foreign currency options. See CEA section 4(a), 7 
U.S.C. 6(a) (generally requiring futures contracts to be traded on 
or subject to the rules of a DCM); CEA section 4c(b), 7 U.S.C. 6c(b) 
(prohibiting trading options subject to the CEA contrary to CFTC 
rules, regulations or orders permitting such trading); Part 32 of 
the CFTC's rules, 17 CFR part 32 (generally prohibiting entering 
into options subject to the CEA) and CFTC Regulation Sec.  33.3(a), 
17 CFR 33.3(a) (prohibiting entering into options on futures other 
than on or subject to the rules of a DCM). Because CEA section 4(a) 
would render an off-exchange futures contract illegal but for CEA 
section 2(c)(2)(B) permitting such transactions with an Enumerated 
Counterparty, it would be illegal for a non-Enumerated Counterparty 
to enter into a futures contract described in 2(c)(2)(B)(i)(I) with 
a non-ECP. Similarly, because options can be conducted only pursuant 
to CFTC authority and the CFTC has proposed to treat commodity 
options within its jurisdiction as swaps, CEA section 2(e) would 
prohibit such options, if on foreign exchange and entered into with 
a non-ECP, but for the fact that 2(c)(2)(B) permits them if traded 
with an Enumerated Counterparty.
    The lack of a counterparty limitation with respect to CEA 
section 2(c)(2)(C)(i)(I)(bb) retail forex transactions is a function 
of the different structures of CEA sections 2(c)(2)(B) and (C). 
Whereas CEA section 2(c)(2)(B)(i) covers transactions that would be 
illegal but for compliance with CEA section 2(c)(2)(B) (due to such 
section's incorporation of the entire CEA, including, for example, 
the exchange-trading requirement discussed above), falling within 
CEA section 2(c)(2)(C)(i)(I), by that section's own terms, merely 
brings a covered transaction within the scope of CEA section 
2(c)(2)(C), which does not include the exchange-trading requirement 
of CEA section 4(a). Because CEA section 2(c)(2)(C)(i)(I) covers 
transactions that may or may not also be transactions described in 
section 2(c)(2)(B)(i)(I) and the far fewer requirements imposed by 
CEA section 2(c)(2)(C) invite characterization of such difficult-to-
categorize transactions as falling solely within CEA section 
2(c)(2)(C), the CFTC will interpret such dually characterizable 
transactions as governed by CEA section 2(c)(2)(B). If such 
transactions fall only within CEA section 2(c)(2)(C), however, 
because they would be subject to neither the exchange-trading 
requirement of CEA section 4(a) nor the CFTC's plenary options 
authority under CEA section 4c(b) (while CEA section 
2(c)(2)(C)(ii)(I), 7 U.S.C. 2(c)(2)(C)(ii)(I), reserves the CFTC's 
section 4c(b) authority, in this scenario, the contract in question 
is not an option), a person other than an Enumerated Counterparty 
may act as counterparty to a non-ECP. Such contracts would, however, 
be subject to two of the CEA's antifraud provisions, sections 4(b) 
and 4b, 7 U.S.C 6(b) and 7 U.S.C 6b, respectively, as if they were 
futures contracts. See CEA section 2(c)(2)(C)(iv), 7 U.S.C. 
2(c)(2)(C)(iv). Such contracts also would be subject to related 
enforcement provisions. See CEA section 2(c)(2)(C)(ii)(I), 7 U.S.C. 
2(c)(2)(C)(ii)(I).
    \607\ See CEA sections 2(c)(2)(B)(iv)(I) and (C)(iii)(I) 
(requiring registration for CPOs of Retail Forex Pools entering into 
retail forex transactions with FCMs, specified affiliated persons 
thereof or RFEDs). By contrast, those sections exclude from the CPO 
registration requirement CPOs of Retail Forex Pools engaging in 
retail forex transactions with Enumerated Counterparties described 
in CEA section 2(c)(2)(B)(i)(II)(aa), (bb), (ee) and (ff). While the 
cited CEA sections refer to counterparties not described in ``any of 
item (aa), (bb), (ee), or (ff)'' of subparagraph (B)(i)(II), the 
CFTC Reauthorization Act of 2008 (``CRA''), included as Title XIII 
of the Food, Conservation and Energy Act of 2008, Pub.L. 110-246, 
122 Stat. 1651 changed item (ee) to item (dd) (a financial holding 
company as defined in section 2 of the Bank Holding Company Act of 
1956) and removed item (ff) (formerly an investment bank holding 
company (as defined in section 17(i) of the Exchange Act (15 U.S.C. 
78q(i))). Therefore, the Commissions interpret the reference in CEA 
sections 2(c)(2)(B)(iv)(I)(cc) and 2(c)(2)(C)(iii)(I)(cc) to items 
(aa), (bb), (ee), or (ff) to be references to items (aa), (bb) and 
(dd). Cf. Retail Foreign Exchange Transactions; Conforming Changes 
to Existing Regulations in Response to the Dodd-Frank Wall Street 
Reform and Consumer Protection Act, 76 FR 56103 (Sept. 12, 2011) 
(providing background on related incorrect internal references in 
CEA sections 2(c)(2)(B) and (C)). See also CFTC Regulation Sec.  
5.3(a)(2)(i), 17 CFR 5.3(a)(2)(i), which requires a CPO, as defined 
in CFTC Regulation Sec.  5.1(d)(1), 17 CFR 5.1(d)(1), to register as 
such. CFTC Regulation Sec.  5.1(d)(1), in turn, defines a CPO, for 
purposes of Part 5 of the CFTC's Regulations, 17 CFR part 5, as 
``any person who operates or solicits funds, securities or property 
for a pooled investment vehicle that is not an [ECP] as defined in 
section 1a(18) of the Act, and that engages in retail forex 
transactions.'' The CFTC interprets the references in Regulation 
Sec.  5.1(d)(1) to ECPs as defined in CEA section 1a(18) to include 
the ECP definition as further defined or interpreted by the 
Commissions under authority conferred by the Dodd-Frank Act or 
otherwise amended or interpreted by the Commissions or a court. 
While the statutory CPO definition in CEA section 1a(11)(A), 7 
U.S.C. 1a(11)(A), does not include transactions described in CEA 
section 2(c)(2)(B)(i), the Commissions believe this was an 
oversight. In any case, CEA section 1a(11)(B), 7 U.S.C. 1a(11)(B), 
grants the CFTC the authority to further define the term CPO, which 
the CFTC has done in CFTC Regulation Sec.  5.1(d)(1). Therefore, a 
person operating a commodity pool engaging in transactions described 
in CEA section 2(c)(2)(B)(i) is a CPO.
    \608\ See CEA sections 2(c)(2)(B)(iv)(II) and 
2(c)(2)(C)(iii)(II). While CEA sections 2(c)(2)(B)(iv)(II) and 
2(c)(2)(C)(iii)(II) refer to counterparties described in item (aa), 
(bb), (ee), or (ff) of subparagraph (B)(i)(II), the CFTC 
Reauthorization Act of 2008 changed item (ee) to item (dd) and 
removed item (ff). Therefore, the Commissions interpret the 
reference in CEA sections 2(c)(2)(B)(iv)(II) and 2(c)(2)(C)(iii)(II) 
to items (aa), (bb), (ee), or (ff) to be references to items (aa), 
(bb) and (dd). Cf. Retail Foreign Exchange Transactions; Conforming 
Changes to Existing Regulations in Response to the Dodd-Frank Wall 
Street Reform and Consumer Protection Act, 76 FR 56103 (Sept. 12, 
2011) (providing background on related incorrect internal references 
in 2(c)(2)(B) and (C)).
    \609\ See, e.g., CFTC Regulation Sec.  4.13(a)(3) (exempting 
from CPO registration operators of commodity pools engaged in a de 
minimis amount of trading in CFTC-jurisdictional contracts).
    \610\ 7 U.S.C. 2(c)(2)(E)(ii)(I).
    \611\ 7 U.S.C. 2(c)(2)(E)(iii)(II).
---------------------------------------------------------------------------

    Separately, subclause (A)(v)(III) of the ECP definition, both 
before and after enactment of the Dodd-Frank Act, provides that a 
corporation, partnership, proprietorship,\612\ organization, trust or 
other business entity may qualify as an ECP if it has a net worth 
exceeding $1 million and ``enters into an agreement, contract, or 
transaction in connection with the conduct of the entity's business or 
to manage the risk associated with an asset or liability owned or 
incurred or reasonably likely to be owned or incurred by the entity in 
the conduct of the entity's business.'' \613\
---------------------------------------------------------------------------

    \612\ Individuals also are covered by a different prong of the 
ECP definition. An individual can qualify as an ECP under clause 
(A)(xi) of the ECP definition. See CEA section 1a(18)(A)(xi), 7 
U.S.C. 1a(18)(A)(xi).
    \613\ There are two other ways a person can qualify as an ECP 
under clause (A)(v): (i) being an entity with total assets exceeding 
$10 million; or (ii) being an entity the obligations of which under 
an agreement, contract, or transaction are guaranteed or otherwise 
supported by a letter of credit or keepwell, support, or other 
agreement by an entity with total assets exceeding $10 million or an 
entity described in clause (A)(i), (ii), (iii), (iv) or (vii), or 
paragraph (C), of the ECP definition. See CEA section 
1a(18)(A)(v)(I) and (II), 7 U.S.C. 1a(18)(A)(v)(I) and (II), 
respectively.
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2. Proposed Approach
    The Commissions stated in the Proposing Release that ``in some 
cases commodity pools unable to satisfy the conditions of clause 
(A)(iv) of the ECP definition may rely on clause (A)(v) to qualify as 
ECPs instead for purposes of retail forex'' and that permitting such 
reliance would frustrate the intent of Congress in imposing the look-
through requirement on Forex Pools in clause (A)(iv) of the ECP 
definition.\614\
---------------------------------------------------------------------------

    \614\ Proposing Release, 75 FR at 80185.
---------------------------------------------------------------------------

    The Commissions proposed to further define the term ``eligible 
contract participant'' to preclude a Forex Pool from qualifying as an 
ECP for purposes of retail forex transactions in reliance on clause 
(A)(v) of the ECP definition if

[[Page 30649]]

such Forex Pool has any participant that is not an ECP and, therefore, 
is not an ECP due to the look-through provision added to clause 
(A)(iv). Further, because commodity pools can be structured in various 
ways and can have one or more feeder funds and/or pools, the 
Commissions proposed to preclude a Forex Pool from being an ECP for 
purposes of retail forex transactions if there was any non-ECP 
participant at any level of the pool structure (e.g., the pool itself, 
a direct participant that invests in the pool, or any indirect 
participant that invests in that pool through other pools or vehicles).
3. Commenters' Views
    One commenter supported the Commissions' efforts to close the 
potential loophole of Forex Pools that are unable to qualify as ECPs 
due to the new look-through provision in clause (A)(iv) of the ECP 
definition instead qualifying as ECPs under clause (A)(v) of the ECP 
definition.\615\ This commenter indicated that it shares the 
Commissions' concern that Forex Pools that do not satisfy the amended 
ECP definition due to the look-through provision for commodity pools in 
clause (A)(iv) may alternatively rely upon clause (A)(v) of the ECP 
definition to qualify as an ECP for purposes of retail forex 
transactions.\616\ This commenter further stated that Congressional 
intent in requiring a look-through for Forex Pools would be frustrated 
if fraudulent pool operators could avail themselves of this 
alternative.\617\
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    \615\ See letter from the NFA. The NFA indicated that it 
recently took separate emergency actions against two firms that did 
not qualify under the NFA's requirements for retail forex 
transactions. In one case, the commodity pool fell short of the $5 
million total asset requirement in clause (A)(iv) of the ECP 
definition; in the other case, the firm never properly formed a 
commodity pool. The NFA cautioned in its letter, ``these cases 
illustrate that firms will attempt to obtain ECP status to shield 
themselves from the jurisdiction of regulators to the detriment of 
pool participants.''
    \616\ Id.
    \617\ Id.
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    However, several commenters recognized the importance of the 
concern about a potential loophole \618\ but stated that the 
Commissions should revise the proposal to mitigate the potential 
adverse consequences to market participants. One commenter, for 
example, commented on the expected effects of the proposed rule on 
funds of funds (``FOFs'').\619\ According to this commenter, FOFs (i) 
normally face as counterparties foreign subsidiaries of U.S. banks and 
foreign banks, and (ii) would incur substantial counterparty, 
documentation and operational costs in moving their retail forex 
transactions onto DCMs or toward the Enumerated Counterparties.
---------------------------------------------------------------------------

    \618\ See, e.g., letters from SIFMA--AMG dated September 15, 
2011 (``SIFMA AMG IV'') (acknowledging some form of ECP look-through 
is appropriate to prevent evasion where circumvention otherwise 
could occur and stating that it is sympathetic to the Commissions' 
implicit objective of ensuring that a person that would not qualify 
as an ECP not be permitted to accomplish indirectly what it is not 
permitted to do directly), Sidley Austin LLP (``Sidley'') (stating 
that the commenter fully appreciates that Congress added the look-
through language to the ECP definition to prevent unscrupulous forex 
market participants from avoiding the retail forex provisions of the 
CEA and the CFTC's rules by ``engineering'' an ECP by pooling the 
capital of a large group of retail customers, thus depriving those 
investors of the protections otherwise afforded to them), AIMA I 
(stating that ``we understand Congress has made a decision to try to 
protect retail investors by amending the definition of ECP under 
Section 1a(1[8]) of the [CEA] to include that, for a commodity pool 
to qualify as an ECP under sub-section (A)(iv), the pool's 
underlying participants must also qualify as ECPs under section 
1a(1[8])).''
    \619\ See letter from Sidley. Sidley noted that FOF managers' 
retail forex transactions are largely undertaken for hedging 
purposes and that most FOF managers offer investments to non-U.S. 
persons, a significant number of which pay for their investments in 
FOF interests using their own currency. Sidley further noted that, 
because most FOFs accept investments only in U.S. dollars, FOF 
managers must convert to U.S. dollars the foreign currency received 
from such investors and invest those dollars in underlying funds, 
and that they enter into a hedging transaction to reduce the risk of 
exchange rate changes between an investor's currency and the U.S. 
dollar.
---------------------------------------------------------------------------

    In a similar vein, two commenters advised that a substantial number 
of hedge funds, as well as publicly offered commodity pools, would, 
under the Commissions' proposal, fail to qualify as ECPs for purposes 
of retail forex transactions, as most such funds have at least one 
direct or indirect non-ECP participant.\620\ These commenters indicated 
that this would disrupt the trading strategies employed by many 
commodity trading advisors (``CTAs'') on behalf of commodity 
pools.\621\ One of these commenters suggested an anti-evasion approach 
combining a lower level of pool assets with a requirement that the 
commodity pool not be formed for the purpose of evading the regulatory 
requirements applicable to retail forex transactions.\622\
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    \620\ See letters from Willkie Farr & Gallagher LLP (``Willkie 
Farr'') and the NYCBA Committee.
    \621\ Id.
    \622\ See letter from Willkie Farr.
---------------------------------------------------------------------------

    Another commenter argued that Congress did not include the look-
through provision in clause (A)(v) of the ECP definition because of its 
effect on bona fide hedgers.\623\ This commenter also advised that the 
primary entities affected are hedge fund and private equity fund 
managers investing in securities who use retail forex transactions 
solely to hedge investment portfolio currency risks, and/or because 
they accept subscriptions in currencies other than U.S. dollars.\624\
---------------------------------------------------------------------------

    \623\ See letter from Akin Gump Strauss Hauer & Feld LLP (``Akin 
Gump'').
    \624\ Id.
---------------------------------------------------------------------------

    Several commenters disagreed with the Commissions' statement in the 
proposal that extending the look-through provision in clause (A)(iv) of 
the ECP definition to clause (A)(v) would effectuate Congressional 
intent. Two commenters noted that there is no specific Dodd-Frank Act 
provision requiring such a change.\625\ Two other commenters argued 
that clause (v) of the ECP definition provides an independent basis for 
qualification as an ECP, which should not be affected by the changes in 
clause (A)(iv) of the ECP definition.\626\
---------------------------------------------------------------------------

    \625\ See letters from AIMA I and Ropes & Gray LLP (``Ropes & 
Gray'').
    \626\ See letters from Akin Gump, Sidley and Skadden, Arps, 
Slate, Meagher & Flom LLP (``Skadden''). Sidley also indicated that 
there seems to be no compelling reason to treat commodity pools 
worse than other sophisticated market participants with respect to 
retail forex transactions with non-Enumerated Counterparties, and no 
reason to treat them worse than a corporation or other entity with 
only $10 million in total assets that therefore qualifies as an ECP 
under clause (A)(v) of the ECP definition to trade retail forex 
transactions although it may have no particular expertise in such 
markets.
---------------------------------------------------------------------------

    One commenter indicated that the extraterritorial application of 
the proposed rules regarding the ECP definition is unclear.\627\ Among 
other things, this commenter indicated it is unnecessary to extend the 
scope of the look-through to protect possible retail investors outside 
of the U.S., especially where a CPO has not marketed a pool in the U.S. 
and does not otherwise have any U.S. investors.\628\
---------------------------------------------------------------------------

    \627\ See letter from AIMA I.
    \628\ Id.
---------------------------------------------------------------------------

    Commenters proposed several alternative approaches that they 
believed would address the Commissions' concerns. One commenter 
suggested that the Commissions create a new category of ECPs for Forex 
Pools comprised entirely of qualified eligible persons (``QEPs'') \629\ 
and operated by persons subject to regulation under the CEA.\630\ This 
commenter also suggested that the Commissions create a new category of 
ECPs for Forex Pools that satisfy a monetary threshold for total assets 
or for the minimum initial investment of a Forex Pool to be 
sufficiently large that, in general, only legitimate pools would exceed 
such thresholds.\631\ Finally, this commenter suggested that the 
Commissions create a category of ECPs

[[Page 30650]]

for non-U.S. persons.\632\ A second commenter suggested that the 
Commissions create a category of ECPs for commodity pools that are 
operated by a CPO or advised by a CTA subject to regulation by a 
foreign regulator comparable to the CFTC.\633\
---------------------------------------------------------------------------

    \629\ The term ``qualified eligible person'' is defined in CFTC 
Regulation Sec. Sec.  4.7(a)(2) and (3).
    \630\ See letter from Sidley.
    \631\ Id.
    \632\ Id. Sidley cited to the approach in Regulation S under the 
Securities Act (17 CFR 230.901 et seq.), Sections 3(c)(1) and (7) of 
the Investment Company Act of 1940 (15 U.S.C. 80a-3(c)(1) and (7)), 
and CFTC Regulation Sec.  4.7(a)(2)(xi).
    \633\ See letter from Willkie Farr.
---------------------------------------------------------------------------

    One commenter suggested (i) allowing commodity pools and their 
counterparties to rely, for the duration of an investment and each time 
commodity pool participants make an investment decision, on participant 
ECP representations provided in connection with an initial investment, 
provided that each participant covenants to update such representations 
if they become inaccurate, and (ii) providing specific relief for FOFs 
because they generally invest all or substantially all of their assets 
in underlying portfolio funds and use retail forex transactions to 
reduce foreign exchange exposure.\634\
---------------------------------------------------------------------------

    \634\ See letter from Sidley.
---------------------------------------------------------------------------

4. Final Rule
    After considering commenters' concerns, the Commissions are 
adopting final rules that have been revised from the proposal. In 
particular, consistent with the statutory text of the Dodd-Frank Act, 
CFTC Regulation Sec.  1.3(m)(5)(i) further defines the term ``eligible 
contract participant'' to prohibit a Forex Pool that directly enters 
into a retail forex transaction (i.e., a transaction-level commodity 
pool) \635\ from qualifying as an ECP under clause (A)(iv) or clause 
(A)(v) of the ECP definition, solely for purposes of entering into 
retail forex transactions, if the pool has one or more direct 
participants that are not ECPs. In response to commenters' concerns 
described above, CFTC Regulation Sec.  1.3(m)(5)(ii) is revised to 
provide that, in determining whether a commodity pool that is a direct 
participant in a transaction-level Forex Pool is an ECP, the indirect 
participants in the transaction-level Forex Pool \636\ will not be 
considered unless such Forex Pool, a commodity pool holding a direct or 
indirect (through one or more intermediate tiers of pools) interest in 
such Forex Pool, or any commodity pool in which such Forex Pool holds a 
direct or indirect interest has been structured to evade Subtitle A of 
Title VII of the Dodd-Frank Act by permitting persons that are not ECPs 
to participate in agreements, contracts, or transactions described in 
section 2(c)(2)(B)(i) or section 2(c)(2)(C)(i) of the Commodity 
Exchange Act. That is, absent evasion, the Commissions are changing the 
proposed ``indefinite look-through'' to an ``evasion-based look-
through'' in the final rule.\637\
---------------------------------------------------------------------------

    \635\ Commodity pool structures can take various forms. One 
common commodity pool structure is a ``master-feeder'' fund 
structure. In such a structure, investors purchase interests in 
``feeder funds,'' which in turn purchase interests in a ``master 
fund.'' Typically, the only fund in a commodity pool structure that 
enters into retail forex transactions (and other transactions) 
directly is the master fund; the feeder funds (and their investors) 
typically would participate indirectly by receiving the profit or 
loss from such retail forex transactions (and other transactions) as 
distributions based on the feeder funds' interests in the master 
fund. Notwithstanding that the master-feeder structure is common, 
other structures exist. Thus, each fund in a commodity pool 
structure that directly enters into retail forex transactions is a 
transaction-level commodity pool.
    \636\ A fund that does not itself engage in retail forex 
transactions but that holds an interest in a transaction-level Forex 
Pool that engages in retail forex transactions is itself a commodity 
pool. Cf. U.S. Regulation of the International Securities and 
Derivatives Markets--Greene, Beller, Rosen, Silverman, Braverman and 
Sperber, Sec.  12.13[1], n.351 and related text.
    \637\ The Commissions caution, however, that they will closely 
monitor developments in this part of the market and will not 
hesitate to revisit their decision to limit the look-through 
provision pursuant to 1.3(m)(5)(ii) should they observe a pattern of 
evasion or misconduct.
---------------------------------------------------------------------------

    In adding the look-through provision to the commodity pool prong of 
the ECP definition, Congress made a decision to protect retail foreign 
exchange investors by requiring that the participants in a Forex Pool 
qualify as ECPs for the Forex Pool itself to qualify as an ECP. The 
Commissions believe that the intent of the look-through provision--
protecting Forex Pool participants from fraudulent and abusive 
conduct--must be given effect to comply with this Congressional 
mandate. Nevertheless, the Commissions acknowledge commenters' concerns 
about potential unintended consequences of applying an indefinite look-
through to every direct and indirect participant of a Forex Pool, as 
proposed. Accordingly, to avoid unintended consequences and related 
costs for Forex Pools whose operators and managers have not 
historically presented the risks that the look-through provision was 
intended to address,\638\ the Commissions are replacing the proposed 
indefinite look-through of every participant in a Forex Pool with a 
limited, evasion-based look-through pursuant to which a transaction-
level Forex Pool will qualify as an ECP, for purposes of retail forex 
transactions, if all of such Forex Pool's direct participants are ECPs, 
and will look through a commodity pool participant in such Forex Pool 
only if it, at any level, has been structured to evade the look-through 
provision in clause (A)(iv) of the ECP definition.
---------------------------------------------------------------------------

    \638\ The proposed rule was based on the CFTC's longstanding, 
broad view of what constitutes a ``pool,'' a view recently codified 
in the ``commodity pool'' definition by section 721(a)(5) of the 
Dodd-Frank Act in CEA section 1a(10), 7 U.S.C. 1a(10), and 
recognized by courts, and thus applied the look-through provision at 
each level of a Forex Pool's investment structure. See CFTC, 
Commodity Pool Operators and Commodity Trading Advisors: Amendments 
to Compliance Obligations, 77 FR 11252 (Feb. 24, 2012) (``CPO/CTA 
Compliance Release'') (advising that ``it is the position of the 
[CFTC] that a fund investing in an unaffiliated commodity pool it 
itself a commodity pool'' and ``[t]his interpretation is consistent 
with the statutory definition of commodity pool, which draws no 
distinction between direct and indirect investments in commodity 
interests''); CFTC v. Equity Financial Group, 572 F.3d 150, 157-158 
(July 13, 2009) (concluding, in the context of a commodity pool that 
invested all of its assets with a commodity pool operated by a 
different CPO, that the CFTC's commodity pool regulations ``cover 
pools that invest in other pools'' and that ``the remedial purposes 
of the statute would be thwarted if the operator of a fund could 
avoid the regulatory scheme simply by investing in another pool 
rather than trading''). The same logic applies to a master-feeder 
structure operated by the same CPO: the remedial purpose of the 
look-through proviso in clause (A)(iv) of the statutory ECP 
definition would be thwarted if the look-through could be defeated 
simply by funneling pool participants into a master fund through a 
feeder fund.
    The proposed rule also was borne of the CFTC's long history of 
combating fraudulent practices by typically unregistered individuals 
or entities that prey upon often unsophisticated retail customers 
through complex and highly leveraged off-exchange transactions in 
foreign currency. However, the operators and managers of commodity 
pool FOFs, master-feeder structures and hedge funds for 
sophisticated investors have not generally been the subject of CFTC 
enforcement actions with respect to retail forex transactions. For 
an in depth discussion of the history of the CFTC's authority over 
retail forex transactions, the abuses giving rise to that authority, 
and related enforcement actions, see CFTC, Regulation of Off-
Exchange Retail Foreign Exchange Transactions and Intermediaries, 75 
FR 3282 (Jan. 20, 2010). Congress acted three times in a decade to 
clarify the CFTC's authority to prosecute the rampant fraud seen in 
this area--first in the Commodity Futures Modernization Act of 2000, 
Public Law 106-554, 114 Stat. 2763 (Dec. 21, 2000) in 2000, then 
again in the CRA, and finally in the Dodd-Frank Act in 2010.
---------------------------------------------------------------------------

    The Commissions believe the final rule strikes the right balance 
between implementing strong protections for non-ECP commodity pool 
participants and not imposing undue burdens or costs on CPOs, CTAs and 
commodity pool participants related to retail forex transactions. In 
addition, the Commissions believe that replacing the indefinite look-
through with the limited, evasion-based look-through alleviates many of 
the commenters' concerns. Accordingly, the Commissions believe it is 
appropriate to limit the look-through provision to the level of a 
commodity pool structure that enters into retail forex transactions and 
to look through commodity pools to their ultimate participants only in 
those

[[Page 30651]]

cases in which it is required to prevent evasion of the protections for 
those persons whom Congress intended to be subject to retail forex 
transactions restrictions.
    At the same time, the Commissions do not believe that Forex Pools 
failing to qualify as ECPs due to the look-through provision in clause 
(A)(iv) of the ECP definition should, nonetheless, be permitted 
unfettered access to ECP status under clause (A)(v).\639\ The look-
through provision for Forex Pools provides heightened investor 
protection from forex fraud for Forex Pool participants that are not 
themselves ECPs. Thus, the Commissions believe that permitting Forex 
Pools with one or more non-ECP participants to achieve ECP status by 
relying on clause (A)(v) of the ECP definition, which applies to 
business entities generally, would serve to undermine the look-through 
provision that Congress specifically imposed on Forex Pools under 
clause (A)(iv).\640\
---------------------------------------------------------------------------

    \639\ In section 712(d)(2)(A) of the Dodd-Frank Act, Congress 
granted the Commissions the authority to adopt such rules regarding 
the ECP definition as the Commissions determine are necessary and 
appropriate, in the public interest, and for the protection of 
investors.
    \640\ The Commissions note that several commenters requested 
clarification regarding the relationship between the look-through 
provision set forth in CFTC Regulation Sec.  1.3(m)(5) and the 
prohibition on a commodity pool qualifying as an ECP under clause 
(A)(v) of the ECP definition if it does not qualify as an ECP under 
clause (A)(iv) of the ECP definition set forth in CFTC Regulation 
Sec.  1.3(m)(6). See, e.g., meeting with SIFMA--AMG on August 2, 
2011. The look-through provision is limited to determining ECP 
status under clause (A)(iv) or clause (A)(v) of the ECP definition 
for purposes of retail forex transactions entered into by Forex 
Pools. The look-through provision does not reference or implicate 
ECP status for purposes of CEA section 2(e) (which prohibits non-
ECPs from entering into swaps other than on or subject to the rules 
of a DCM), Securities Act section 5(d) (which prohibits a person 
from offering to sell, offering to buy or purchase, or selling a 
security-based swap to a person that is a non-ECP unless a 
registration statement under the Securities Act is in effect with 
respect to that security-based swap), or Exchange Act section 6(l) 
(which prohibits a person from effecting a transaction in a 
security-based swap with or for a person that is a non-ECP unless 
the transaction is effected on a national securities exchange 
registered with the SEC). The prohibition in CFTC Regulation Sec.  
1.3(m)(6) on a commodity pool qualifying as an ECP under clause 
(A)(v) of the ECP definition if it does not qualify as an ECP under 
clause (A)(iv) of the ECP definition does not involve any look-
through. Rather, in contrast with CFTC Regulation Sec.  1.3(m)(5), 
CFTC Regulation Sec.  1.3(m)(6) applies for purposes of all 
agreements, contracts and transactions for which ECP status is 
relevant. See part III.C, infra, for a discussion of the prohibition 
on a commodity pool qualifying as an ECP under clause (A)(v) of the 
ECP definition if it does not qualify as an ECP under clause (A)(iv) 
of the ECP definition.
---------------------------------------------------------------------------

    Moreover, developments subsequent to the issuance of the Proposing 
Release should ameliorate commenters' concerns that CEA section 
2(c)(2)(E)(ii)(I) significantly limits the universe of possible retail 
forex transaction counterparties.\641\ At the time the Commissions 
issued the Proposing Release and throughout the comment period, the 
CFTC was the only Federal regulatory agency that had issued final rules 
governing retail forex transactions by its regulated persons and 
entities.\642\ Since then, though, both the OCC and the FDIC finalized 
(effective July 15, 2011) rules governing retail forex transactions by 
Enumerated Counterparties regulated by those agencies.\643\ In 
addition, the SEC has issued interim temporary final rules (also 
effective July 15, 2011) governing retail forex transactions by 
registered broker-dealers.\644\ Also, the Federal Reserve Board 
proposed rules to govern retail forex transactions by its regulated 
banks on August 3, 2011.\645\ As a result of these regulatory actions, 
Forex Pools that are not ECPs due to the look-through provision and who 
are subject to a counterparty limitation \646\ may enter into retail 
forex transactions with any Enumerated Counterparty but for those 
regulated by the Federal Reserve Board.\647\
---------------------------------------------------------------------------

    \641\ See also part III.G, infra, discussing CFTC Regulation 
Sec.  1.3(m)(8), one effect of which is to eliminate the retail 
forex transaction counterparty restriction for Forex Pools 
qualifying as ECPs.
    \642\ See generally Part 5 of the CFTC's regulations, 17 CFR 5, 
and CFTC, Regulation of Off-Exchange Retail Foreign Exchange 
Transactions and Intermediaries, 75 FR 55410 (Sept. 10, 2010). See 
also CFTC, Retail Foreign Exchange Transactions; Conforming Changes 
to Existing Regulations in Response to the Dodd-Frank Wall Street 
Reform and Consumer Protection Act 76 FR 56103 (Sept. 12, 2011).
    \643\ See FDIC, Retail Foreign Exchange Transactions, 76 FR 
40779 (July 12, 2011) (final FDIC retail forex rules); OCC, Retail 
Foreign Exchange Transactions, 76 FR 41375 (July 14, 2011) (final 
OCC retail forex rules); see also OCC, Retail Foreign Exchange 
Transactions, 76 FR 56094 (Sept. 12, 2011) (interim final OCC retail 
forex rules for federal savings associations and their operating 
subsidiaries).
    \644\ See SEC, Retail Foreign Exchange Transactions, 76 FR 41676 
(July 15, 2011). In the release accompanying the rules, the SEC 
requested comment on broker-dealers' involvement in retail forex 
transactions to inform the SEC in developing permanent rules to 
regulate these activities. See id. at 46181-83.
    \645\ See Board, Retail Foreign Exchange Transactions 
(Regulation NN), 76 FR 46652 (Aug. 3, 2011) (proposed Board rules 
for retail forex transactions).
    \646\ See part III.B.1, supra, discussing the applicability of 
the counterparty limitation.
    \647\ Of course, upon the Board's finalization of its retail 
forex rules, U.S. financial institutions regulated by the Board also 
will be acceptable counterparties.
---------------------------------------------------------------------------

    The Commissions believe that the final rules reasonably address 
commenters' concerns. In this regard, the Commissions note that in 
applying the look-through provision, the Commissions will consider the 
indirect participants in a transaction-level Forex Pool if such Forex 
Pool, a commodity pool holding a direct or indirect (through one or 
more intermediate tiers of pools) interest in such Forex Pool, or any 
commodity pool in which such Forex Pool holds a direct or indirect 
interest has been structured to evade Subtitle A of Title VII of the 
Dodd-Frank Act by permitting persons that are not ECPs to participate 
in agreements, contracts, or transactions described in section 
2(c)(2)(B)(i) or section 2(c)(2)(C)(i) of the Commodity Exchange Act. 
One example of a scheme to evade would be if a commodity pool tier has 
been included in the structure of the Forex Pool primarily to provide 
non-ECP participants exposure to retail forex transactions rather than 
to achieve any other legitimate business purpose.\648\ One example of a 
``legitimate business purpose'' that would not trigger the look-through 
provision is a FOF operated primarily for the purpose of investing in 
underlying funds and using retail forex transactions solely to hedge 
the currency risk posed by an unfavorable change in the exchange rate 
between the currency in which underlying funds accept investments and 
the currency in which FOF investors pay for their investments in the 
FOF.\649\ Similarly, the Commissions would not consider a commodity 
pool using retail forex transactions solely for bona fide hedging 
purposes \650\ with

[[Page 30652]]

respect to currency risk as being structured to avoid the look-through 
provision.\651\ The ``participate in agreements, contracts, or 
transactions described in section 2(c)(2)(B)(i) or section 
2(c)(2)(C)(i) of the Act'' language of CFTC Regulation Sec.  
1.3(m)(5)(ii) is aimed at exposure to retail forex transactions as an 
asset class, investment strategy, or an end in itself, not at exposure 
to retail forex transactions solely designed for bona fide hedging 
purposes with respect to foreign exchange exposure arising in the 
course of a commodity pool's business.\652\
---------------------------------------------------------------------------

    \648\ Feeder funds are usually added to commodity pool 
structures for purposes such as tax efficiency. A master-feeder 
structure ``[permits] U.S. taxable investors to take advantage of 
investing in a U.S. limited partnership feeder fund, which[,] 
through certain elections made at the time the structure is 
established, is tax effective for such U.S. taxable investors'' and 
``[permits] [n]on-U.S. and U.S. tax-exempt investors [to] subscribe 
via a separate offshore feeder company so as to avoid coming 
directly within the U.S. tax regulatory net applicable to U.S. 
taxable investors.'' Effie Vasilopoulos & Katherine Abrat, The 
Benefits of Master-Feeder Fund Structures for Asian-based Hedge Fund 
Managers, Hedge Fund Monthly (April 2004), available at https://www.eurekahedge.com/news/04apr_archive_Sidley_master_feeder.asp. 
Other benefits can include efficiencies gained by the use of only a 
single trading entity, avoiding the need to split trade tickets, 
eliminating the need to duplicate agreements with counterparties and 
greater economies of scale in administering the fund. Id.
    \649\ Sidley notes that the typical FOF operates in this manner. 
See generally letter from Sidley for a more detailed discussion of 
these transactions.
    \650\ In this context, bona fide hedging purposes means bona 
fide hedging purposes within the meaning and intent of CFTC 
Regulation Sec.  1.3(z)(1), except that the requirement therein that 
the transaction or position be on a DCM or SEF that is a trading 
facility will not be a factor in the bona fide hedging purpose 
analysis. Compare CFTC Regulation Sec.  4.5(c)(2)(iii)(A) (relying 
in part on the bona fide hedging concepts in CFTC Regulations 
Sec. Sec.  1.3(z)(1) and 151.5 to provide relief from the CPO 
definition). See also CPO/CTA Compliance Release at 11256-11257 
(discussing and declining to adopt commenters' request to expand the 
definition of bona fide hedging to include risk management). Where a 
Forex Pool's counterparty, but not the Forex Pool, is hedging its 
risks, it is not the case that the Forex Pool is entering the retail 
forex transaction solely to hedge its own risk.
    \651\ The examples mentioned in text should not be construed to 
mean that any other fact pattern does or does not constitute 
evasion, which must be determined on a case-by-case basis.
    \652\ Based on the same reasoning, the Commissions do not 
believe it was the intent of the look-through proviso in CEA section 
1a(18)(A)(iv) to subject to a retail forex regime a single level 
commodity pool engaging in retail forex transactions solely for bona 
fide hedging purposes with respect to foreign exchange exposure 
arising in the course of a commodity pool's operations. 
Consequently, the Commissions will interpret such a commodity pool 
as an ECP if it otherwise satisfies the terms of CEA section 
1a(18)(A)(iv) even if such a pool has one or more non-ECP 
participants.
---------------------------------------------------------------------------

    In applying the limited look-through provision in the final rule, 
the Commissions would consider a Forex Pool's direct participants to 
include not only persons that initially hold interests in the level of 
the commodity pool structure that enters into retail forex 
transactions, but also persons that can acquire those interests or that 
subsequently hold those interests. As applied to exchange-traded 
products (``ETPs'') that are Forex Pools, any person that acquires an 
interest in the ETP Forex Pool in secondary market transactions would 
be a direct participant. ETPs typically issue shares only in the large 
aggregations or blocks (such as 50,000 ETP shares) called ``Creation 
Units.'' An authorized purchaser, usually an investment bank, broker 
dealer or large institutional investor, may purchase a Creation Unit. 
After purchasing a Creation Unit, the authorized purchaser may hold the 
Creation Unit, or sell some or all of the ETP shares in the Creation 
Unit to investors in secondary market transactions by splitting up the 
Creation Unit and selling the individual ETP shares on a national 
securities exchange or in off-exchange transactions. The ability to 
break up the Creation Unit into ETP shares permits other investors, 
such as non-ECPs, to purchase the individual ETP shares in secondary 
market transactions.
    All participants in an ETP Forex Pool must be ECPs when they 
purchase or otherwise acquire an interest in the ETP Forex Pool. In 
addition, an ETP Forex Pool will not be able to verify whether the 
persons that acquire interests in the ETP Forex Pool in exchange 
transactions are ECPs. The ability of non-ECPs to acquire interests in 
an ETP Forex Pool and the inability of the ETP Forex Pool to verify ECP 
status with respect to exchange transactions create a presumption that 
ETP Forex Pools are not ECPs and, therefore, are Retail Forex Pools. 
This presumption would not apply in the case of a Forex Pool that is 
structured in a manner that does not involve exchange trading and in 
which the Forex Pool would be able to verify the ECP status of its 
participants.
    One commenter suggested that the Commissions allow commodity pools 
and their counterparties to rely on participant ECP representations 
provided in connection with an initial investment.\653\ The Commissions 
note that the obligation to determine that the parties to retail forex 
transactions are ECPs is imposed on the CPOs of Forex Pools and the 
counterparties looking to enter into retail forex transactions with 
Forex Pools. In making that determination, the Commissions expect CPOs 
and retail forex transaction counterparties to Forex Pools to be guided 
by the principles for verifying the ECP status of a swap dealer's or 
major swap participant's counterparty discussed in the CFTC's recently 
adopted external business conduct standards, including the safe 
harbor.\654\ Thus, solely for purposes of CEA section 1a(18)(A)(iv) and 
CFTC Regulation Sec.  1.3(m)(5), the Commissions will permit CPOs and 
retail forex transaction counterparties to rely on written 
representations from, as applicable, pool participants or potential 
pool participants that the person making the representation is an ECP 
(or is a non-U.S. person; as discussed below in this section III.B.4., 
solely for purposes of CEA section 1a(18)(A)(iv) and CFTC Regulation 
Sec.  1.3(m)(5), the Commissions will consider Forex Pools whose 
participants are limited solely to non-U.S. persons (and which are 
operated by CPOs located outside of the U.S., its territories or 
possessions) to be ECPs), or from Forex Pools that the Forex Pool is an 
ECP, provided that the CPO or retail forex transaction counterparty has 
a reasonable basis to so rely, just as swap dealers and major swap 
participants are permitted to do pursuant to the safe harbor in new 
CFTC Regulation Sec.  23.430(d), 17 CFR 23.430(d). Solely for purposes 
of CEA section 1a(18)(A)(iv) and CFTC Regulation Sec.  1.3(m)(5), a CPO 
or retail forex transaction counterparty will have a reasonable basis 
to rely on such written representations if the person making the 
representation specifies therein the provision(s) of, as applicable, 
section 1a(18) of the CEA or CFTC Regulation Sec.  4.7(a)(1)(iv) 
pursuant to which the person qualifies as an ECP or a non-U.S. person, 
respectively, unless it has information that would cause a reasonable 
person to question the accuracy of the representation.\655\ Solely for 
purposes of CEA section 1a(18)(A)(iv) and CFTC Regulation Sec.  
1.3(m)(5), persons representing that they qualify as non-U.S. persons 
based on CFTC Regulation Sec.  4.7(a)(1)(iv)(D) must represent that 
they are relying on such provision as modified as discussed below 
(i.e., without the 10% carve-out for U.S. persons).
---------------------------------------------------------------------------

    \653\ See letter from Sidley.
    \654\ See CFTC, Business Conduct Standards for Swap Dealers and 
Major Swap Participants With Counterparties; Final Rule, 77 FR 9733 
(Feb. 17, 2012).
    \655\ Cf. CFTC Regulation Sec. Sec.  23.430(d), 23.402(d).
---------------------------------------------------------------------------

    Furthermore, the CFTC recognizes that, despite a counterparty's 
reasonable good faith efforts to ensure that Forex Pools do not in fact 
have any U.S. participants, a situation may arise where a Forex Pool 
does turn out to have U.S. participants. If a counterparty has 
reasonable policies and procedures in place to verify the ECP status of 
Forex Pool counterparties and, notwithstanding such reasonable good 
faith efforts and following such policies and procedures, enters into 
retail forex transactions with such a Forex Pool in good faith and it 
was subsequently determined that U.S. participants represented no more 
than a de minimis number of participants or amount of ownership of the 
Forex Pool, absent other material factors, the CFTC would not expect to 
bring an enforcement action against the counterparty for entering into 
a retail forex transaction in contravention of the requirements of the 
retail forex regime. For purposes of this analysis only, and without 
this being viewed as a de minimis threshold for purposes of this rule 
or otherwise, the CFTC would consider as de minimis, ownership of units 
of participation of a Forex Pool held by U.S. participants of less than 
10% of the beneficial interest in the Forex Pool. The fact that, absent 
other material factors, the CFTC would not expect to bring an 
enforcement action against a forex transaction counterparty in such 
case does not

[[Page 30653]]

relieve any obligation on the part of the CPO of the Forex Pool either 
to register as a CPO, claim the 4.13(a)(3) exemption therefrom or 
redeem the U.S. participants as described above.
    One commenter suggested that the Commissions allow commodity pools 
and their counterparties to rely on participant ECP representations 
provided in connection with an initial investment.\656\ The Commissions 
believe that if participants make ECP representations in connection 
with an initial investment in a Forex Pool, absent an additional 
investment (which would require a new ECP verification, other than in 
the case of automatically reinvested distributions), the subsequent 
loss of a participant's ECP status would not cause the Forex Pool to 
lose its own ECP status for purposes of retail forex transactions so 
long as the operating agreement of the Forex Pool or the subscription 
or other agreement pursuant to which the participant invested in the 
Forex Pool requires the participant to advise the CPO of the Forex Pool 
promptly of a loss of the participant's ECP status. In the event of the 
loss of ECP status of a participant, the CPO would be required to 
redeem the non-ECP from the Forex Pool at the first opportunity 
following notification to avoid the Forex Pool losing its ECP status 
for subsequent retail forex transactions.
---------------------------------------------------------------------------

    \656\ See letter from Sidley. The Commissions note that the 
obligation to determine that the parties to retail forex 
transactions are ECPs is imposed on the CPOs of Forex Pools and the 
persons looking to engage in retail forex transactions with Forex 
Pools.
---------------------------------------------------------------------------

    The Commissions are mindful that several commenters indicated that 
CPOs do not customarily include a question or representation as to ECP 
status in subscription agreements for pool participants, and stated 
that requiring CPOs to qualify or redeem existing participants due to 
the new look-through provision would be expensive, burdensome and 
disruptive.\657\ In this regard, the Commissions note that the look-
through requirement for commodity pools was imposed by statute. As a 
result of the Commissions adopting the limited look-through in the 
final rule (as compared to the proposed indefinite look-through), 
however, the number of commodity pools subject to the look-through 
provision should be dramatically reduced, reducing the number of pools 
subject to regulation of their retail forex transactions, and the 
associated costs, accordingly.\658\
---------------------------------------------------------------------------

    \657\ See, e.g., letter from SIFMA AMG IV.
    \658\ The adoption of CFTC Regulation Sec.  1.3(m)(8), discussed 
in part III.G, infra, also should reduce the number of pools subject 
to regulation of their retail forex transactions, and the associated 
costs, accordingly.
---------------------------------------------------------------------------

    Also, in response to commenter concerns that the look-through 
provision would be applied to entities other than commodity pools 
(e.g., operating companies),\659\ the Commissions revised the text of 
CFTC Regulation Sec.  1.3(m)(5)(i) to reflect their intent to apply the 
look-through provision solely to commodity pools qualifying as ECPs, if 
at all, under clause (A)(iv) and clause (A)(v) of the ECP 
definition.\660\ This is consistent with the statutory text, which is 
limited to looking through commodity pools under clause (A)(iv) of the 
ECP definition, and the intent behind the look-through provision, as it 
relates to clause (A)(v) thereof.
---------------------------------------------------------------------------

    \659\ See, e.g., letter from Sandalwood Securities, Inc. 
(expressing concern that ``the Proposed Rule extends Dodd-Frank's 
limited look-through provision to all sub-sections of section 
la(12)'').
    \660\ Thus, for example, investment companies qualifying under 
clause (A)(iii) of the ECP definition and employee benefit plans 
qualifying under clause (A)(vi) of the ECP definition (and, as 
stated in each clause, ``a foreign person performing a similar role 
or function subject as such to foreign regulation'') would not be 
covered by the look-through provision. To the extent that other 
entities would otherwise be captured by the look-through as proposed 
(such as collective investment trusts whose investors are ERISA 
plans not excluded from the commodity pool definition by CFTC 
Regulation Sec.  4.5(a)(4) and which qualify as ECPs under clause 
(A)(v) of the ECP definition), the Commissions believe that focusing 
on the level of the Forex Pool entering into the retail forex 
transactions, and such Forex Pool's direct participants (absent 
evasion), should alleviate such concerns.
---------------------------------------------------------------------------

    Commenters also stated that Retail Forex Pools will no longer be 
able to enter into retail forex transactions with foreign financial 
institutions.\661\ As discussed in section III.B.1. above, however, 
this is not the case with respect to retail forex transactions 
described in CEA section 2(c)(2)(C)(i)(I)(bb). With respect to retail 
forex transactions described in CEA section 2(c)(2)(B)i)(I), this is a 
consequence of the express statutory text of the Dodd-Frank Act, which 
removed non-U.S. financial institutions from the list of Enumerated 
Counterparties eligible to enter into retail forex transactions with 
non-ECPs.\662\
---------------------------------------------------------------------------

    \661\ Cf. letters from Sidley and Millburn Ridgefield 
Corporation (``Millburn'').
    \662\ See section 742(c) of the Dodd-Frank Act, amending CEA 
section 2(c)(2)(B)(i)(II)(aa), 7 U.S.C. 2(c)(2)(B)(i)(II)(aa).
---------------------------------------------------------------------------

    Commenters further suggested generally that the Commissions create 
additional categories of ECPs to address the Commissions' concerns 
regarding the potential loophole of Retail Forex Pools that are unable 
to qualify as ECPs due to the new look-through provision in clause 
(A)(iv) of the ECP definition qualifying as an ECP under clause (A)(v) 
of the ECP definition. While one commenter proposed adopting a new rule 
clarifying that Forex Pools comprised entirely of QEPs and operated by 
persons subject to regulation under the CEA are ECPs,\663\ Congress 
chose to look to ECP status of Forex Pool participants, not QEP status, 
as the basis for determining whether such Forex Pools are ECPs. 
Therefore, it is more appropriate to rely on Retail Forex Pool 
participants' ECP status than to rely on QEP status to establish ECP 
status.
---------------------------------------------------------------------------

    \663\ See letter from Sidley. This commenter also suggested 
deeming non-U.S. persons to be ECPs by definition. The Commissions 
have addressed this comment below in this section in response to the 
comment regarding the extraterritorial impact of the proposed ECP 
rules.
---------------------------------------------------------------------------

    One commenter stated a concern regarding what it characterized as 
the lack of clarity surrounding the extraterritoriality impact of the 
proposed ECP rules.\664\ The Commissions recognize the potential 
consequences of the broad look-through language in CEA section 
1a(18)(A)(iv) \665\ and are providing guidance as to the application of 
the look-through to Forex Pools whose participants are limited solely 
to non-U.S. persons and which are operated by CPOs located outside the 
United States, its territories or possessions.
---------------------------------------------------------------------------

    \664\ See letter from AIMA I.
    \665\ 7 U.S.C. 1a(18)(A)(iv).
---------------------------------------------------------------------------

    As discussed below, while foreign entities are not necessarily 
immune from U.S. jurisdiction for commercial activities undertaken with 
U.S. counterparties or in U.S. markets, canons of statutory 
construction ``assume that legislators take account of the legitimate 
sovereign interests of other nations when they write American laws,'' 
\666\ particularly when limited U.S. interests are at stake.\667\
---------------------------------------------------------------------------

    \666\ See F. Hoffman-LaRoche, Ltd. v. Empagran S.A., 542 U.S. 
155, 164 (2004), citing Murray v. Schooner Charming Betsy, 2 Cranch 
64, 118, 2 L.Ed. 208 (1804) (``[A]n act of congress ought never to 
be construed to violate the law of nations if any other possible 
construction remains''); Hartford Fire Insurance Co. v. California, 
509 U.S. 764 (1993) (Scalia, J., dissenting). See also Restatement 
(Third) Foreign Relations Law Sec.  403 (scope of a statutory grant 
of authority must be construed in the context of international law 
and comity including, as appropriate, the extent to which regulation 
is consistent with the traditions of the international system).
    \667\ See also CFTC, Exemption From Registration for Certain 
Foreign Persons, 72 FR 63976 (Nov. 14, 2007) (where the CFTC stated 
that:
    Given this agency's limited resources, it is appropriate at this 
time to focus [the 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)
    (citing CFTC, Introducing Brokers and Associated Persons of 
Introducing Brokers, Commodity Trading Advisors and Commodity Pool 
Operators; registration and Other Regulatory Requirements, 48 FR 
35248, 35261 (Aug. 3, 1983)).

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[[Page 30654]]

    The Commissions do not believe that Congress intended for Forex 
Pools with no U.S. participants and operated by CPOs located outside 
the United States, its territories or possessions to be subject to a 
U.S. retail forex regime and, therefore, will consider Forex Pools 
whose participants are limited solely to non-U.S. persons and which are 
operated by CPOs located outside the United States, its territories or 
possessions to be ECPs for purposes of CFTC Regulation Sec.  1.3(m)(5). 
For this purpose, a Forex Pool participant is a non-U.S. person if it 
satisfies the definition of ``Non-United States person'' in CFTC 
Regulation 4.7(a)(1)(iv); provided, however, that, if a participant is 
an entity organized principally for passive investment, such as a pool, 
investment company or other similar entity, such entity will be 
considered to be a Non-United States person under paragraph (D) of CFTC 
Regulation 4.7(a)(1)(iv) for purposes of CFTC Regulation Sec.  
1.3(m)(5) solely if all units of participation in such passive 
investment vehicle participant are held by Non-United States 
persons.\668\ A broader interpretation or relief is not appropriate at 
this time.\669\
---------------------------------------------------------------------------

    \668\ CFTC Regulation Sec.  4.7(a)(i)(iv)(D) lists the following 
as one category of non-United States person:
    An entity organized principally for passive investment such as a 
pool, investment company or other similar entity; Provided, That 
units of participation in the entity held by persons who do not 
qualify as Non-United States persons or otherwise as qualified 
eligible persons represent in the aggregate less than 10% of the 
beneficial interest in the entity, and that such entity was not 
formed principally for the purpose of facilitating investment by 
persons who do not qualify as Non-United States persons in a pool 
with respect to which the operator is exempt from certain 
requirements of part 4 of the Commission's regulations by virtue of 
its participants being Non-United States persons.
    It would be inappropriate to disregard the presence of U.S. 
persons constituting as much as 10% of such entities' participants 
in the context of this interpretive guidance. As discussed elsewhere 
herein, however, entities described in CEA section 1a(18)(A)(iii) or 
(vi), 7 U.S.C. 1a(18)(A)(iii) or (vi), are not subject to the look-
through and are ECPs irrespective of the ECP status of their 
participants.
    \669\ Cf. CPO/CTA Compliance Release at 11264 (stating that ``it 
is prudent to withhold consideration of a foreign advisor exemption 
until the [CFTC] has received data regarding such firms on Forms 
CPO-PQR and/or CTA-PR * * * to enable the [CFTC] to better assess 
[which] firms * * * may be appropriate to include within the 
exemption, should the [CFTC] decide to adopt one'').
---------------------------------------------------------------------------

C. ECP Status for Commodity Pools Under Clause (A)(v) vs. Under Clause 
(A)(iv) of the ECP Definition

1. Proposed Approach
    The Commissions stated in the Proposing Release that they believe 
``some commodity pools unable to satisfy the total asset or regulated 
status components of clause (A)(iv) of the ECP definition may rely on 
clause (A)(v) to qualify as ECPs instead.'' \670\ The Commissions 
further stated in the Proposing Release that ``a commodity pool that 
cannot satisfy the monetary and regulatory status conditions prescribed 
in clause (A)(iv) should not qualify as an ECP in reliance on clause 
(A)(v) of the ECP definition.'' \671\ Based on those views, the 
Commissions proposed to further define the term ``eligible contract 
participant'' to prevent such a commodity pool from qualifying as an 
ECP pursuant to clause (A)(v) of the ECP definition. This proposal 
applied to all commodity pools, not just Forex Pools engaged in retail 
forex transactions.
---------------------------------------------------------------------------

    \670\ Proposing Release, 75 FR at 80185.
    \671\ Id.
---------------------------------------------------------------------------

2. Commenters' Views
    Two commenters argued that, had Congress wished to prevent 
commodity pools from relying on the general ECP provision for business 
entities in clause (A)(v), it could have expressly excluded commodity 
pools from clause (A)(v).\672\ Another commenter attempted to 
illustrate that clause (A)(v) of the ECP definition is an independent 
basis for qualifying as an ECP by distinguishing clause (A)(v) from 
clause (A)(iv).\673\
---------------------------------------------------------------------------

    \672\ See letters from Sidley and Skadden.
    \673\ See letter from Akin Gump. Akin Gump noted that ``[a]s 
opposed to [clause] (A)(iv), [clause] (A)(v) includes as one means 
of satisfying its criteria that the entity be entering into a 
contract for hedging purposes.'' While correct, clause (A)(v) also 
includes as another means of satisfying its criteria that an entity 
enter into agreements, contracts or transactions in connection with 
the conduct of the entity's business, which would be a much lower 
standard.
---------------------------------------------------------------------------

    One commenter expressed the view that it is unclear whether 
``subject to regulation under this Act'' in CEA section 
1a(18)(A)(iv)(II) \674\ means a registered CPO or something else (e.g., 
a person excluded from the definition of a CPO, a CPO exempt from 
registration conditioned in part upon making a filing to claim such 
relief).\675\
---------------------------------------------------------------------------

    \674\ 7 U.S.C. 1a(18)(A)(iv)(II).
    \675\ See letter from SIFMA AMG IV. CEA Section 
1a(18)(A)(iv)(II) refers to a commodity pool that ``is formed and 
operated by a person subject to regulation under this Act or a 
foreign person performing a similar role or function subject as such 
to foreign regulation (regardless of whether each investor in the 
commodity pool or the foreign person is itself an eligible contract 
participant) provided, however, that for purposes of section 
2(c)(2)(B)(vi) and section 2(c)(2)(C)(vii), the term `eligible 
contract participant' shall not include a commodity pool in which 
any participant is not otherwise an eligible contract participant.''
---------------------------------------------------------------------------

3. Final Rule
    The Commissions are adopting CFTC Regulation Sec.  1.3(m)(6) as 
proposed, which states that ``[a] commodity pool that does not have 
total assets exceeding $5,000,000 or that is not operated by a person 
described in subclause (A)(iv)(II) of section 1a(18) of the Act is not 
an eligible contract participant pursuant to clause (A)(v) of such 
Section.'' \676\ As noted, the Commissions are concerned that clause 
(A)(v) of the ECP definition may undermine the protections that 
specifically apply to commodity pool participants pursuant to the 
limitations on ECP status for commodity pools set forth in clause 
(A)(iv) of the ECP definition. Allowing a commodity pool that cannot 
satisfy the monetary and regulatory status conditions prescribed for 
commodity pools in clause (A)(iv) to qualify as an ECP under clause 
(A)(v) would undermine these protections.
---------------------------------------------------------------------------

    \676\ The Commissions have made certain technical corrections to 
proposed CFTC Regulation Sec.  1.3(m)(6)(i) as concerns its 
citations to the CEA.
---------------------------------------------------------------------------

    The Commissions acknowledge the comments stating that clause (A)(v) 
of the ECP definition is an independent basis for qualifying as an ECP 
and that Congress did not explicitly provide that a commodity pool that 
fails to qualify as an ECP under clause (A)(iv) cannot do so under 
clause (A)(v). However, when specifically legislating for commodity 
pools, Congress determined that total assets of $5 million and 
operation by a person subject to regulation under the CEA (or a foreign 
equivalent) are necessary to assure appropriate protection for non-ECP 
participants in a commodity pool. Furthermore, the commenters' view 
that Congress's use of the disjunctive term ``or'' between clauses 
(A)(x) and (A)(xi) of the ECP definition means that an entity can rely 
on clause (A)(v) of the ECP definition, notwithstanding that such 
entity cannot satisfy a prong more specific to it, would largely render 
superfluous each clause under subparagraph (A) of the ECP definition 
other than clause (v) and clause (xi) (for individuals).\677\ As such, 
the Commissions believe that the final rule adopted in this release is 
consistent with Congressional intent.
---------------------------------------------------------------------------

    \677\ Interpreting statutory language as surplusage is 
disfavored. Effect should be given to every clause and word of a 
statute. See Negonsott v. Samuels, 507 U.S. 99 (1993).
---------------------------------------------------------------------------

    The Commissions also are mindful that one commenter expressed a 
concern that the Commissions' reliance on clause (A)(iv) of the ECP 
definition

[[Page 30655]]

might cause commodity pools to lose their ability to claim ECP status 
under clauses of the ECP definition, other than clause (v), and asked 
the Commissions to clarify the meaning of the phrase ``formed and 
operated by a person subject to regulation under the [CEA]'' in clause 
(A)(iv).\678\ In response, the Commissions note that a commodity pool 
that does not qualify for ECP status under clause (A)(iv) of the ECP 
definition may still qualify as an ECP under either of the two clauses 
of the ECP definition other than clause (A)(v) applicable to 
subcategories of commodity pools. Thus, registered investment companies 
and foreign equivalents may qualify as ECPs under clause (A)(iii) of 
the ECP definition, and ERISA plans and the other entities described in 
clause (A)(vi) of the ECP definition may qualify as ECPs thereunder. 
The Commissions' actions in this release do not change that result.
---------------------------------------------------------------------------

    \678\ See letter from SIFMA AMG IV.
---------------------------------------------------------------------------

    Also, with regard to that commenter's request for clarification, 
for purposes of CFTC Regulation Sec.  1.3(m)(6), the Commissions 
interpret the language ``subject to regulation under the [CEA]'' in 
clause (A)(iv) of the ECP definition as requiring lawful operation of 
the commodity pool by a person excluded from the CPO definition, a 
registered CPO, or a person properly exempt from CPO registration.\679\ 
Congress did not limit ECP status under clause (A)(iv) to commodity 
pools operated by persons registered as CPOs; it used the more 
encompassing phrase ``subject to regulation'' under the CEA.\680\ On 
the other hand, to construe that phrase to include any person operating 
a commodity pool would render the phrase superfluous.\681\ The 
commenters' view would enable a CPO that fails to register as required 
to claim that the commodity pool it operates is an ECP under clause 
(A)(v) and thus is not subject to regulation of its retail forex 
transactions. The Commissions believe that construing the phrase 
``formed and operated by a person subject to regulation under the 
[CEA]'' to refer to a person excluded from the CPO definition, 
registered as a CPO or properly exempt from CPO registration 
appropriately reflects Congressional intent.
---------------------------------------------------------------------------

    \679\ For these purposes, the Commissions would take the same 
approach to insignificant deviations from exemptive filings as the 
CFTC does in CFTC Regulation Sec.  4.7(e).
    \680\ If the Commissions interpreted the ``subject to regulation 
under this Act'' language in CEA section 1a(18)(A)(iv)(II) to mean 
that the commodity pool operator must be registered as a CPO and 
limited CPOs to claiming ECP status solely under clause (iv) of the 
ECP definition, then the operators of all commodity pools trading 
swaps would have to register as CPOs to be ECPs. While more CPOs 
will be registering with the CFTC because the CFTC has withdrawn 
CFTC Regulation Sec.  4.13(a)(4), see CPO/CTA Compliance Release, 
and the Dodd-Frank Act has expanded the scope of the transactions 
within the CFTC's jurisdiction, thus reducing the number of CPOs who 
can rely on the 5 percent threshold in CFTC Regulation Sec.  
4.13(a)(3) and thus claim the CPO registration exemption, the CFTC 
did not withdraw 4.13(a)(3), so some CPOs will be able to continue 
to rely on it. Also, not all persons operating commodity pools will 
be CPOs. See CFTC Regulation Sec.  4.5 (exclusion from the 
definition of the term ``commodity pool operator''). The Commissions 
do not believe Congress intended commodity pool ECP status to 
require CPO registration by the commodity pools' operators in all 
cases.
    \681\ If the mere act of forming or operating a commodity pool 
means that a person is ``subject to regulation'' under the CEA, then 
the ``subject to regulation'' language would not be needed.
---------------------------------------------------------------------------

D. Dealers and Major Participants as ECPs

1. Proposed Approach
    The Commissions proposed to add swap dealers, security-based swap 
dealers, major swap participants and major security-based swap 
participants to the ECP definition on the basis that such persons ``are 
likely to be among the most active and largest users of swaps and 
security-based swaps.'' \682\
---------------------------------------------------------------------------

    \682\ Proposing Release, 75 FR at 80184.
---------------------------------------------------------------------------

2. Commenters' Views
    Several commenters supported the proposed addition of swap dealers, 
security-based swap dealers, major swap participants, and major 
security-based swap participants to the ECP definition.\683\ No 
commenter opposed this aspect of the proposal.
---------------------------------------------------------------------------

    \683\ One representative commenter stated that ``the proposed 
definition in CFTC Proposed CFTC Regulation Sec.  1.3(m)(1)-(4) 
fills important gaps left by Congress by ensuring that major swap 
participants, major security-based swap participants, swap dealers 
and security-based swap dealers are treated as ECPs.'' See letter 
from Sidley.
---------------------------------------------------------------------------

3. Final Rule
    The Commissions are adopting the new ECP categories as proposed. 
The rules as adopted clarify that the terms ``swap dealer,'' 
``security-based swap dealer,'' ``major swap participant,'' and ``major 
security-based swap participant'' have their respective meanings as 
defined in the CEA and the Exchange Act and as otherwise further 
defined by the Commissions.\684\
---------------------------------------------------------------------------

    \684\ These new ECP categories are set forth in new CFTC 
Regulation Sec.  1.3(m)(1)-(4).
---------------------------------------------------------------------------

E. Government Entities: Incorrect Cross-Reference

1. Description of the Issue
    Clause (A)(vii) of the ECP definition conditions the ECP status of 
governmental entities, and their political subdivisions, agencies, 
instrumentalities and departments (collectively, ``government 
entities''), in part, on the identity of their counterparties. 
Specifically, a government entity may qualify as an ECP under the 
provision in clause (A)(vii) that requires the entity's counterparty to 
be ``listed in any of subclauses (I) through (VI) of section 
2(c)(2)(B)(ii)'' of the CEA.\685\ However, subclauses (I) through (III) 
of CEA section 2(c)(2)(B)(ii) \686\ are unrelated to counterparty types 
(rather, they describe the dollar amounts that apply for purposes of 
retail forex transactions under CEA section 2(c)(2)(B)), and subclauses 
(IV) through (VI) of CEA section 2(c)(2)(B)(ii) no longer exist in the 
statute. Read literally, then, this provision of the ECP definition is 
inherently a nullity and, thus, cannot enable government entities to 
qualify as ECPs.\687\
---------------------------------------------------------------------------

    \685\ CEA section 1a(18)(A)(vii)(cc), 7 U.S.C. 
1a(18)(A)(vii)(cc).
    \686\ 7 U.S.C. 2(c)(2)(B)(ii)(I)-(III).
    \687\ A government entity, though, can still qualify as an ECP 
under the other provisions of clause (A)(vii) if it is a certain 
type of ``eligible commercial entity'' as defined in CEA section 
1a(17), 7 U.S.C. 1a(17), or owns and invests on a discretionary 
basis $50 million or more in investments.
---------------------------------------------------------------------------

2. Commenters' Views
    One commenter traced the history of the relevant provisions and 
concluded that the reference to subclauses (I) through (VII) of CEA 
section 2(c)(2)(B)(ii) in clause (A)(vii) of the ECP definition is 
erroneous.\688\ This commenter pointed instead to CEA section 
2(c)(2)(B)(i)(II) \689\ as the reference that should be included in 
clause (A)(vii) of the ECP definition because it lists the entities 
that are eligible to serve as counterparties in retail forex 
transactions.
---------------------------------------------------------------------------

    \688\ See letter from Wells Fargo dated June 3, 2011 (``Wells 
Fargo I'').
    \689\ 7 U.S.C. 2(c)(2)(B)(i)(II).
---------------------------------------------------------------------------

    This commenter noted that the cross-reference in clause (A)(vii) of 
the ECP definition was correct when it was added to the CEA as part of 
the CFMA, but that it became incorrect in 2008 when an unrelated 
amendment to the CEA was enacted \690\ that changed the numbering of 
the CEA's provisions governing retail forex transactions but that 
failed to make a conforming amendment to clause (A)(vii) of the ECP 
definition. As a result of this 2008 amendment to the CEA, the list of 
entities that formerly appeared in subclauses (I) through (VI) of CEA 
sections 2(c)(2)(B)(ii) now appear in items (aa) through (ff) of CEA 
section

[[Page 30656]]

2(c)(2)(B)(i)(II) instead.\691\ This commenter requested that ``the 
Commissions correct this clearly erroneous reference in the definition 
of ECP through interpretive guidance, rulemaking or Commission order.'' 
\692\
---------------------------------------------------------------------------

    \690\ See section 13101 of the CRA.
    \691\ 7 U.S.C. 2(c)(2)(B)(i)(II)(aa)-(ff).
    \692\ See letter from Wells Fargo I.
---------------------------------------------------------------------------

3. Interpretive Guidance
    Clause (A)(vii) of the ECP definition contains an erroneous cross-
reference to subclauses (I) through (VI) of CEA section 2(c)(2)(B)(ii). 
Accordingly, the Commissions are issuing interpretive guidance by 
identifying the counterparties with which a governmental entity can 
enter into swaps to attain ECP status under the provision in clause 
(A)(vii) that requires the entity's counterparty to be ``listed in any 
of subclauses (I) through (VI) of section 2(c)(2)(B)(ii)'' of the CEA. 
The Commissions consider a government entity covered by the 
counterparty limitation in clause (A)(vii) to be an ECP with respect to 
an agreement, contract, or transaction that is offered by, and entered 
into with, a person that is listed in items (aa) through (ff) of 
section 2(c)(2)(B)(i)(II) of the CEA. The limitation of ECP status 
``with respect to'' a particular transaction is consistent with 
Congress' determination that, for purposes of this provision of clause 
(A)(vii), governmental entities may derive their ECP status from the 
status of their counterparty.

F. Qualification as an ECP With Respect to Swaps Used To Hedge or 
Mitigate Commercial Risk in Connection With the Conduct of an Entity's 
Business

1. Proposing Release
    In the Proposing Release, the Commissions requested comment on 
whether any additional categories should be added to the definition of 
ECP, ``such as the following categories suggested by commenters [on the 
ANPRM]: Commercial real estate developers; energy or agricultural 
cooperatives or their members; or firms using swaps as hedges pursuant 
to the terms of the CFTC's Swap Policy Statement.'' \693\ As noted 
above, the ECP definition is important because the Dodd-Frank Act 
amended the CEA to prohibit a person that is not an ECP from entering 
into swaps other than on or subject to the rules of a DCM.\694\
---------------------------------------------------------------------------

    \693\ See Proposing Release, 75 FR at 80185. The reference to 
the ``Swap Policy Statement'' is to the CFTC's Policy Statement 
Concerning Swap Transactions, 54 FR 30694 (July 21, 1989). The Swap 
Policy Statement ``identifie[d] those swap transactions which [were] 
not * * * regulated as futures or commodity option transactions 
under the [CEA] or the related regulations.'' 54 FR at 30694. One 
element of the Swap Policy Statement required that the swap be 
entered into in connection with each swap counterparty's line of 
business. Id. at 30697. The Swap Policy Statement was applicable to 
cash-settled swaps only, with foreign exchange considered to be cash 
for this purpose. Id. at 30696. The Swap Policy Statement required 
that the terms of the relevant swap be individually tailored, 
meaning that the material terms of the swap had to be negotiated, 
the parties had to make individualized credit determinations, and 
the swap documentation could not be fully standardized. Id. at 
30696-97. The Swap Policy Statement did not apply to swaps subject 
to exchange-style offset, swaps that were cleared or subject to a 
margin system, or swaps marketed to the public. Id. As noted in the 
Product Definitions Proposal, the Dodd-Frank Act supersedes the Swap 
Policy Statement. 76 FR at 29829, n. 74.
    \694\ The discussion in this section relates only to swaps and 
has no effect on the laws or regulations applicable to security-
based swaps, security-based swap agreements or mixed swaps.
    As noted above, the Dodd-Frank Act also amended the Exchange Act 
and the Securities Act to make it unlawful for a person to effect a 
transaction in a security-based swap with or for a person that is 
not an ECP unless the transaction is effected on a national 
securities exchange registered with the SEC, and to make it unlawful 
for a person to offer to sell, offer to buy or purchase, or sell a 
security-based swap to a person that is not an ECP unless a 
registration statement under the Securities Act is in effect with 
respect to that security-based swap.
---------------------------------------------------------------------------

2. Commenters' Views
    Several commenters supported the addition of categories to the 
definition of ECP because, these commenters said, not all current swap 
market participants are ECPs. Many of these commenters said that non-
ECPs have entered into swaps in reliance on the Swap Policy 
Statement.\695\ Commenters highlighted, among other things, the 
importance of the Swap Policy Statement to pass-through entities used 
by farmers,\696\ operating companies \697\ and commercial property 
developers,\698\ noting that such entities may not meet the ECP 
criteria. According to these commenters, these pass-through entities 
often are small and medium-sized businesses that enter into interest 
rate swaps with lending financial institutions in reliance on the Swap 
Policy Statement.\699\ The commenters explained that the loans usually 
are guaranteed by the principals of the entity entering into the swap, 
and that the borrower would qualify as an ECP if structured as a 
single-level corporate entity or sole proprietorship.\700\ Commenters 
said that if these non-ECP entities were limited to swaps that are 
available on or subject to the rules of a DCM, many regional bank 
borrowers would lose the ability to use swaps, real estate companies 
would have less flexibility in risk management, and smaller lenders 
would be at a competitive disadvantage.\701\ Another commenter said 
that Dodd-Frank Act provisions such as the end-user clearing exception 
indicate that Congress intended to preserve the availability of swaps 
used for business reasons rather than for investment or 
speculation.\702\
---------------------------------------------------------------------------

    \695\ See letter from CDEU. One commenter estimated that swap 
transactions completed by regional and community banks in reliance 
on the Swap Policy Statement constituted 30-40% of all of such 
banks' swaps, representing approximately 7,000 to 10,000 swaps per 
year and $15 to $20 billion in related loan principal. See letter 
from B&F I. Another commenter advised that it has entered 11 swaps, 
with a total notional of $26 million, since its formation in 2007, 
almost all of the counterparties to which ``qualified for the swap 
under the [Swap Policy Statement] business purpose exemption.'' See 
letter from Capstar. The CFTC stated when issuing the Swap Policy 
Statement that it ``reflects the [CFTC]'s view that at this time 
most swap transactions, although possessing elements of futures or 
options contracts, are not appropriately regulated as such under the 
[CEA] and [CFTC] regulations.'' Swap Policy Statement at 30694.
    \696\ See, e.g., letter from Rabobank, N.A., Rabo AgriFinance, 
Inc. and Co[ouml]peratieve Centrale Raiffeisen-Boerenleenbank B.A. 
(``Rabobank, New York Branch'') (relating that ``[f]or a variety of 
estate planning and regulatory purposes, farmers commonly hold their 
ownership interests in land, buildings and farm equipment 
indirectly, through a network of legal entities'').
    \697\ See, e.g., letter from Fifth Third Bank and Union Bank, 
N.A. (advising that ``[i]t is common for an operating business to 
organize a separate limited liability company (for tax and legal 
reasons) to acquire * * * assets * * * and to lease these assets to 
the operating company[, which] becomes the borrow[er] * * * for the 
loan used to acquire those assets'' and that ``[t]he limited 
liability company often does not maintain sufficient capital to 
qualify as an ECP'').
    \698\ See, e.g., letters from Capstar, Frost National Bank, FTN 
Financial Capital Markets, Midsize Banks and NAREIT.
    \699\ See letters from BB&T I and B&F I. Commenters said that 
these businesses may intentionally maintain less than $1 million in 
equity primarily for tax and legal reasons. See letters from Capital 
One and Columbia State Bank (stating that over 65% of its borrowers 
are structured as limited liability companies or S corporations and 
intentionally maintain less than $1 million in equity at the entity 
entering into the swap).
    \700\ See letter from Columbia State Bank. See also letter from 
BB&T I.
    \701\ See letters from BB&T I, Capital One, Capstar, Columbia 
State Bank, Midsize Banks, NAREIT and Wells Fargo II.
    \702\ See letter from FSR I.
---------------------------------------------------------------------------

    To mitigate the impact of restricting non-ECPs to swaps that are 
available on or subject to the rules of DCMs, some commenters said that 
an entity should be able to qualify as an ECP based on the financial 
qualifications of related entities, so long as various conditions 
proposed by the commenters are satisfied. Some commenters said that an 
entity should be eligible to be an ECP if its swap obligations are 
guaranteed by an ECP,\703\ or if its controlling entity qualifies as an 
ECP under clause (A)(v) of the statutory definition.\704\ Another 
commenter suggested revisions to the

[[Page 30657]]

ECP definition that included looking to the ECP status or 
sophistication of the majority owner of an entity in determining if the 
entity itself is an ECP.\705\ Other commenters suggested other 
provisions to allow non-ECPs to enter into swaps other than on or 
subject to the rules of a DCM, so long as the non-ECP meets various 
conditions indicating that the swap is used in connection with its line 
of business.\706\
---------------------------------------------------------------------------

    \703\ See letters from BB&T I, Midsize Banks and Wells Fargo II.
    \704\ See letters from CDEU and Regional Banks.
    \705\ See letter from NAREIT.
    \706\ See letters from the American Public Gas Association 
(``APGA''), Capital One and Gavilon dated December 23, 2010 
(``Gavilon I'').
---------------------------------------------------------------------------

    Other commenters argued for per se ECP qualification based on their 
status as certain types of persons, such as farmers\707\ or for ECP 
status based solely on a combination of a person's status and the swap 
being related to a person's line of business with no additional 
conditions.\708\
---------------------------------------------------------------------------

    \707\ See meeting with Ron Eliason on December 16, 2010 (in 
which Mr. Eliason contended that farmers should be able to enter 
into swaps, even if they do not meet the income or asset tests in 
the current ECP definition and, therefore, would not be permitted to 
enter into swaps other than on or subject to the rules of a DCM).
    \708\ See letter from APGA (requesting that ``the [CFTC] 
exercise its authority under section la(18)(C) of the Act and 
determine that public natural gas distribution companies, including 
member-owned co-operatives, that enter into swaps in connection with 
their business of supplying customers with natural gas are ECPs 
within the meaning of section la(18) of the Act'').
---------------------------------------------------------------------------

3. Final Rules and Interpretation
    In response to the commenters' concerns, the CFTC is adopting CFTC 
Regulation Sec.  1.3(m)(7) to permit an entity, in determining its net 
worth for purposes of subclause (A)(v)(III) of the ECP definition,\709\ 
to include the net worth of its owners, solely for purposes of 
determining its ECP status for swaps used to hedge or mitigate 
commercial risk, provided that all of its owners are themselves ECPs 
(disregarding shell companies). Under CFTC Regulation Sec.  1.3(m)(7) 
as adopted, an entity seeking to qualify under subclause (A)(v)(III) of 
the ECP definition in order to enter into a swap used to hedge or 
mitigate commercial risk is permitted to count the net worth of its 
owners in determining its own net worth, so long as all its owners are 
ECPs. This regulation applies only to entities that are otherwise 
eligible to rely on subclause (A)(v)(III) to determine ECP status; it 
does not expand or change the scope of application of that 
paragraph.\710\
---------------------------------------------------------------------------

    \709\ CEA section 1a(18)(A)(v)(III) provides that the term 
``eligible contract participant'' includes ``a corporation, 
partnership, proprietorship, organization, trust, or other entity * 
* * that (aa) has a net worth exceeding $1,000,000; and (bb) enters 
into an agreement, contract, or transaction in connection with the 
conduct of the entity's business or to manage the risk associated 
with an asset or liability owned or incurred or reasonably likely to 
be owned or incurred by the entity in the conduct of the entity's 
business.'' 7 U.S.C. 1a(18)(A)(v)(III).
    \710\ For example, if a commodity pool were precluded by CFTC 
Regulation Sec.  1.3(m)(6) from relying on clause (A)(v) of the 
statutory definition to qualify as an ECP, such pool would not be 
able to rely on CFTC Regulation Sec.  1.3(m)(7) to qualify as an 
ECP.
---------------------------------------------------------------------------

    CFTC Regulation Sec.  1.3(m)(7) as adopted applies only when 
determining ECP status for swaps used to hedge or mitigate commercial 
risk. This new regulation does not apply when determining ECP status 
for other swaps or for security-based swaps, security-based swap 
agreements, mixed swaps, or agreements, contracts or transactions that 
are not swaps (regardless of the purpose for which they are used).
    The Commissions have considered the comments indicating that, as 
currently structured, many businesses are owned by multiple legal 
entities and/or individuals, and the net worth of all the owners in the 
aggregate in some cases would satisfy the $1 million net worth 
requirement in subclause (A)(v)(III), even though the particular legal 
entity that enters into a swap does not have a net worth exceeding $1 
million.\711\ While the Commissions recognize that the requirement, in 
subclause (A)(v)(III)(aa) of the ECP definition, that the entity 
relying on that paragraph have a net worth exceeding $1 million 
evidences Congress' intent that only entities with this level of 
financial resources should be eligible for ECP status under this 
paragraph of the definition, the Commissions agree with commenters that 
application of this requirement in these circumstances would 
inappropriately limit the ability of business entities to use swaps to 
hedge or mitigate commercial risk. As a result, the Commissions are 
persuaded that in this limited situation, the entity should qualify as 
an ECP and be eligible to enter into swaps other than on or subject to 
the rules of a DCM, so long as the entity is using the swap to hedge or 
mitigate commercial risk and all of the owners of the entity are ECPs 
(other than shell companies).
---------------------------------------------------------------------------

    \711\ See, e.g., letters from B&F I (stating that ``[i]f the 
customer does not * * * [itself] meet the ECP definition, then the 
transaction would have to be guaranteed by any entity or individual 
who is an owner * * * [who] meets the $10,000,000 total asset test 
of section 1(a)(18)(A)(v)(I) of the Act or the $1,000,000 net worth 
test of section 1(a)(18)(A)(v)(III) of the Act.''), NAREIT (urging 
that the Commissions impute ECP status to non-ECP entities involved 
in specified real estate businesses to such entities whose 
``majority owner or controlling entity'' is an ECP) and Midsize 
Banks (recommending that the ECP determination be made with respect 
to a non-ECP entity's owners based on criteria including qualifying 
natural persons as ECPs based on a $1,000,000 net worth).
---------------------------------------------------------------------------

    In response to those commenters requesting per se ECP status or the 
ability to qualify as an ECP based on a combination of status and 
engaging in swaps related to a line of business, without further 
restriction, the Commissions do not believe it is necessary or 
appropriate to further define the term ECP to such an extent in order 
to address most commenters' concerns. The Commissions note that such 
approaches would undermine the prohibition in CEA section 2(e) \712\ on 
non-ECPs executing swaps other than on or subject to the rules of a 
DCM. The Commissions also note that focusing solely on a link between a 
swap and a line of business would undermine the application of the ECP 
definition to swaps in that the various prongs of the ECP generally are 
linked to dollar thresholds, regulated status, or a combination of the 
two.
---------------------------------------------------------------------------

    \712\ 7 U.S.C. 2(e).
---------------------------------------------------------------------------

    The Commissions also note that it currently is considering a draft 
petition for relief pursuant to CEA section 4(c)(6)(C) \713\ for 
certain entities described in Federal Power Act section 201(f),\714\ 
which may address the concerns of some commenters. Additionally, the 
Commissions are developing joint rules to further define the term 
``swap,'' including the forward exclusion from the swap definition 
which, in turn, may result in certain transactions not being considered 
swaps. Further, the CFTC also is considering today a form of trade 
option exemption, which may further address commenters' concerns.
---------------------------------------------------------------------------

    \713\ 7 U.S.C. 6(c)(6)(C).
    \714\ 16 U.S.C. 824(f).
---------------------------------------------------------------------------

    With respect to farmers, in response to the CFTC's Commodity 
Options and Agricultural Swaps rulemaking proposal,\715\ commenters 
generally were of the view that the ECP definition is appropriate in 
its current form.\716\ While

[[Page 30658]]

the Commissions may consider providing further relief should experience 
show, after the ECP definition becomes effective, that further relief 
is warranted, neither the ECP definition nor the various actions cited 
in the foregoing paragraph are final, so providing further relief is 
premature. The Commissions' measured approach, which builds on the 
existing net worth requirement in the general entity ECP category, 
provides broad relief to many of the commenters (e.g., borrowers 
generally) while otherwise adhering to the existing ECP categories.
---------------------------------------------------------------------------

    \715\ 76 FR 6095 (Feb. 3, 2011).
    \716\ See, e.g., letters from NCFC dated April 4, 2011 (``NCFC 
II'') (stating ``[o]n behalf of the more than two million farmers 
and ranchers who belong to one or more farmer cooperative(s), the 
[NCFC] * * * [believes] the limitation on participation [in 
agricultural swaps] to [ECPs] outside of a DCM * * * should limit 
[agricultural swap] participation to appropriate persons'' and that 
``[t]he ECP requirement with a threshold of $1 million in net worth 
to be allowed to use swaps and options, other than on a DCM, is 
appropriate for the products cooperatives offer their members''), ; 
letter from NGFA dated April 4, 2011 (``NGFA II'') (stating that 
``[t]he use of agricultural swaps has been constrained relative to 
other swaps by virtue of being subject to CFTC regulatory 
requirements, while other swaps have been exempted from CFTC 
oversight,'' ``the Dodd-Frank Act * * * institutes a number of 
safeguards, including the limitation that only [ECPs] may engage in 
swaps unless entered into on a designated contract market,'' and 
``[t]he NGFA believes that these safeguards provide more-than-ample 
protection in the swaps marketplace for both agricultural and non-
agricultural swaps and that there is no compelling reason to place 
additional burdens on agricultural swaps.'').
---------------------------------------------------------------------------

    The Commissions note that commenters said that, because of the way 
some businesses are structured for tax, estate planning or other 
purposes, they enter into swaps through a legal entity that does not, 
by itself, qualify as an ECP even though the net worth of the business 
and its owners, taken in the aggregate, would qualify as an ECP 
pursuant to subclause (A)(v)(III) of the ECP definition. The 
Commissions believe that the best way to address this concern is to 
allow such a business to consider the net worth of all its owners in 
determining whether the net worth requirement in subclause (A)(v)(III) 
is satisfied.\717\
---------------------------------------------------------------------------

    \717\ The Commissions note that this regulation provides an 
alternative means for certain business entities to qualify as ECPs. 
It neither diminishes nor qualifies in any way the requirement in 
CEA section 2(e) that persons that are not ECPs enter into swaps 
only on or subject to the rules of a DCM.
---------------------------------------------------------------------------

    CFTC Regulation Sec.  1.3(m)(7) is available only to an entity that 
seeks to qualify as an ECP under subclause (A)(v)(III) of the statutory 
definition in order to enter into a swap that will be used to hedge or 
mitigate commercial risk. The Commissions limited CFTC Regulation Sec.  
1.3(m)(7) to subclause (A)(v)(III) because this provision of the ECP 
definition is available to a business entity that uses swaps in 
connection with the conduct of its business or to manage risks 
associated with assets or liabilities related to the conduct of its 
business.\718\
---------------------------------------------------------------------------

    \718\ CEA section 1a(18)(A)(v)(III)(bb), 7 U.S.C. 
1a(18)(A)(v)(III)(bb). The Commissions note that an entity that 
would qualify as an ECP under subclause (A)(v)(III) without 
application of CFTC Regulation Sec.  1.3(m)(7) is not required to 
meet the conditions stated in, this regulation.
---------------------------------------------------------------------------

    The purpose of CFTC Regulation Sec.  1.3(m)(7) is to maintain the 
ability of business entities to enter into swaps other than on or 
subject to the rules of a DCM for limited purposes. This regulation 
therefore is available only with respect to a swap that is used to 
hedge or mitigate commercial risk within the meaning of CFTC Regulation 
Sec.  1.3(kkk).\719\ CFTC Regulation Sec.  1.3(m)(7) applies only if 
all of an entity's owners qualify as ECPs under the provision of the 
ECP definition applicable to such owner. Although some commenters 
suggested that an entity should be able to qualify as an ECP based on 
the status of its majority or controlling owners,\720\ the Commissions 
believe that CFTC Regulation Sec.  1.3(m)(7) should be available only 
when all of an entity's owners qualify as ECPs. The Commissions do not 
believe it would be appropriate to impair the protection of non-ECPs 
that flows from the requirement that non-ECPs enter into swaps only on 
or subject to the rules of a DCM.\721\ In order to maintain these 
protections and prevent evasion, CFTC Regulation Sec.  1.3(m)(7) 
provides that any shell company will be disregarded, and in order to 
determine if the underlying entity may use CFTC Regulation Sec.  
1.3(m)(7), each owner of such shell company must be an ECP.\722\
---------------------------------------------------------------------------

    \719\ See part IV.C. The use of the phrase ``hedge or mitigate 
commercial risk'' in CFTC Regulations Sec. Sec.  1.3(m)(7) and 
1.3(kkk) is similar to the use of the same phrase in the exception 
to the mandatory clearing requirement in CEA section 2(h)(7), 7 
U.S.C. 2(h)(7).
    \720\ See, e.g., letter from NAREIT.
    \721\ See CEA section 2(e), 7 U.S.C. 2(e).
    \722\ See CFTC Regulation Sec.  1.3(m)(7)(ii).
    The term ``shell company'' means any entity that limits its 
holdings to direct or indirect interests in entities that are ECPs 
through reliance on CFTC Regulation Sec.  1.3(m)(7). Any entity that 
holds at least one direct or indirect interest in an entity not 
relying on CFTC Regulation Sec.  1.3(m)(7) would not be a shell 
company. The ECP status of owners of entities that are not shell 
companies is not relevant for purposes of CFTC Regulation Sec.  
1.3(m)(7), which should permit wider financing of small businesses 
using swaps to hedge or mitigate commercial risk.
    To be clear, an individual will never be considered to be a 
shell company for purposes of CFTC Regulation Sec.  1.3(m)(7).
---------------------------------------------------------------------------

    Correspondingly, in aggregating net worth for purposes of 
determining the ECP status of an entity pursuant to CFTC Regulation 
Sec.  1.3(m)(7), if the entity is owned by a shell company, then it is 
the net worth of the owners of that shell company that is relevant, not 
the net worth of the shell company.\723\
---------------------------------------------------------------------------

    \723\ This provision may apply repeatedly in a ``chain.'' For 
example, if in determining whether an entity may rely on CFTC 
Regulation Sec.  1.3(m)(7), an owner of that entity that is a shell 
company is disregarded, then if the owner of that shell company is 
also a shell company, that second shell company also is disregarded, 
and so on.
---------------------------------------------------------------------------

    Last, also in order to prevent evasion, CFTC Regulation Sec.  
1.3(m)(7)(ii)(C) specifies that an individual may rely on the 
proprietorship provision of clause (A)(v) of the statutory definition 
for purposes of determining its status as an ECP owner of an entity 
only if the proprietorship \724\ status arises independent of the 
business conducted by such entity \725\ and the individual proprietor 
acquires his/her interest in such entity (i) in connection with the 
conduct of the individual's proprietorship or (ii) to manage the risk 
associated with an asset or liability owned or incurred or reasonably 
likely to be owned or incurred by the proprietorship.\726\ The 
Commissions are adopting CFTC Regulation Sec.  1.3(m)(7)(ii)(C) because 
they believe that the only circumstance in which a proprietorship 
should be considered an ECP for purposes of CFTC Regulation Sec.  
1.3(m)(7)(i) is if it is making an investment related to the 
proprietorship.\727\ The ECP status of an individual acting other than 
with respect to its proprietorship is determined based on the ECP 
clause applicable to individuals. The Commissions note that they have 
authority to take action to prevent evasion of the provisions regarding 
shell companies and proprietorships by entities relying on CFTC 
Regulation Sec.  1.3(m)(7) to establish ECP status.
---------------------------------------------------------------------------

    \724\ A proprietorship generally is a business that a person 
operates in a personal capacity and with respect to which that 
person directly owns all the assets and directly is responsible for 
all of the liabilities, rather than through a corporation, 
partnership or other structure conveying limited liability. See 
letters from Midmarket Banks and Wells Fargo II (stating that 
``proprietors . . . typically are not separate legal entities''); 
see also State of California Franchise Tax Board Web site (advising 
that ``[t]he business and the owner are one. There is no separate 
legal entity and thus no separate legal person''), at https://www.ftb.ca.gov/businesses/bus_structures/soleprop.shtml. A 
proprietorship is not a separate taxable entity but reports the 
income or loss of the business, which is taxed along with a sole 
proprietor's other income, on a separate schedule attached to his or 
her individual federal income tax return. See letter from Midmarket 
Banks. See also 2011 Form1040 Schedule C: Profit or Loss from 
Business (Sole Proprietorship), available at https://www.irs.gov/pub/irs-pdf/f1040sc.pdf; 2011 Instructions for Schedule C, available at 
https://www.irs.gov/pub/irs-pdf/i1040sc.pdf.
    \725\ CFTC Regulation Sec.  1.3(m)(7)(ii)(C)(I) is designed to 
ensure that the individual qualifies as a proprietorship, if at all, 
other than due to its interest in either an entity seeking to 
qualify as an ECP under CFTC Regulation Sec.  1.3(m)(7)(i) or in any 
other entity.
    \726\ See CFTC Regulation Sec.  1.3(m)(7)(ii)(C)(IV). This 
language is modeled on the language in 7 U.S.C. 
1a(18)(A)(v)(III)(bb).
    \727\ The Commissions note that this guidance regarding 
proprietorships applies only when an entity is relying on CFTC 
Regulation Sec.  1.3(m)(7). The Commissions do not intend that this 
guidance would expand or limit the circumstances when a 
proprietorship may otherwise rely on clause (A)(v) of the statutory 
definition in establishing its ECP status.

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[[Page 30659]]

G. ECP Status for Forex Pools Operated by Registered CPOs or CPOs 
Exempt From Registration Under Certain Conditions

1. Description of the Issue and Commenters' Views
    Notwithstanding the modifications to the look-through provisions 
for Forex Pools discussed above in section III.B., the Commissions 
acknowledge commenters' concerns about the potential for unintended 
consequences arising from the look-through provisions of the Dodd-Frank 
Act. Several commenters asserted that many Forex Pools are operated by 
sophisticated, professional managers that do not need the protections 
of a retail forex regime designed to protect non-ECPs that are engaging 
in retail forex transactions.\728\ More specifically, some commenters, 
based on CFTC enforcement actions involving Forex Pools, suggested that 
commodity pools of a sufficient size, and/or operated by a registered 
or exempt CPO, do not pose the risks of fraud and abuse of non-ECP 
customers that the statutory look-through provision is intended to 
address.\729\
---------------------------------------------------------------------------

    \728\ See, e.g., letters from Millburn (characterizing the 
proposed rules as ``greatly limit[ing] the ability of entities 
managed by sophisticated money managers that are subject to 
registration and examination by regulators to qualify as ECPs'') and 
Sidley (describing ``[a] commodity pool, like a registered 
investment company or an employee benefit plan, [a]s a pool of 
assets from investors of varying (and, in some cases, undetermined) 
levels of sophistication that are advised by a sophisticated 
adviser'').
    \729\ See joint letter from the Global Foreign Exchange Division 
(``GXFD'') and MFA dated January 19, 2011 (``GFXD II'') (describing 
35 CFTC Forex Pool enforcement cases from 2010 and 2011 and noting 
that in 80% of these cases, the amount at issue in the misconduct 
was less than $10 million, and that only one case involved a 
registered CPO where the amount at issue in the misconduct was more 
than $10 million; two additional cases involved misconduct involving 
CPOs exempt from registration as such under CFTC Regulation Sec.  
4.13(a). While the commenter did not characterize these amounts as 
``total assets'' (instead, the commenter used terms such as 
``fraudulently obtained'' or ``sustained losses of'' to modify the 
cited dollar amounts) in most cases, it is clear that these amounts 
are equivalent to, or subsets of, total assets. For instance, for a 
CPO to have fraudulently obtained $10 million from commodity pool 
participants, the CPO must have taken in $10 million from them, 
resulting in the commodity pool at one time having $10 million in 
total assets. See also letter from Sidley (providing 26 examples of 
CFTC Forex Pool-related enforcement cases, all but one of which 
involved Forex Pools with less than $50 million in total assets). A 
number of the cases cited by GXFD and Sidley overlap; in the 
aggregate, these commenters appear to have presented data on 45 
different cases rather than 61.
---------------------------------------------------------------------------

    As a result, commenters suggested that the look-through provision 
should not apply in determining ECP status of commodity pools that meet 
certain conditions. For example, commenters suggested that the look-
through not be applied to a commodity pool with $10 million in total 
assets paired with another or other factors, such as not being 
structured to evade,\730\ being subject to regulation under the 
CEA\731\ or the CPO being registered as such.\732\ Another commenter 
suggested requiring the total assets or minimum initial investment of a 
Forex Pool to be sufficiently large that, in general, only legitimate 
pools would exceed such thresholds.\733\ This commenter suggested a 
total asset threshold of $50 million.\734\
---------------------------------------------------------------------------

    \730\ See letter from GFXD II.
    \731\ See letters from GXFD II and Skadden.
    \732\ See meeting with SIFMA on January 20, 2012 (in which 
representatives of SIFMA proposed a new non-exclusive set of 
criteria for a Forex Pool to qualify as an ECP, which included, as 
one of several alternatives in one element of the proposed criteria, 
that a Forex Pool be operated by a registered CPO). See also letter 
from Willkie Farr (observing that ``[i]t may be time to regulate 
certain previously unregulated transactions and traders, so that 
more CPOs are registered'' and that ``many commodity pools are 
operated and advised by registered professionals'').
    \733\ See letter from Sidley.
    \734\ See id.
---------------------------------------------------------------------------

    Separately, one commenter also claimed that the statutory look-
through, if strictly implemented, might inappropriately preclude Forex 
Pools and their CPOs, many of whom are registered, from engaging in 
retail forex transactions with swap dealers because swap dealers are 
not Enumerated Counterparties (and some swap dealers also may not be 
Enumerated Counterparties in a different capacity, such as being a U.S. 
financial institution).\735\ This commenter stated that such a result 
could reduce close out netting opportunities in the event of the 
insolvency of a counterparty.
---------------------------------------------------------------------------

    \735\ See joint letter from the GFXD and MFA dated January 10, 
2012 (``GFXD I''). These commenters indicated that, while
    [s]ome swap dealers may be dually licensed as a bank or a 
broker-dealer [and therefore] eligible to transact in OTC foreign 
exchange with retail investors as well as swaps with institutional 
investors * * * as an operational matter, it is not clear that firms 
will be able to and find it efficient to structure their business so 
that the retail foreign exchange platform is conducted from the same 
entity as the institutional swaps business.
---------------------------------------------------------------------------

2. Final Rule
    In response to commenters, the CFTC is adopting CFTC Regulation 
Sec.  1.3(m)(8), pursuant to which certain Forex Pools may qualify as 
ECPs notwithstanding the look-through requirement. As adopted, CFTC 
Regulation Sec.  1.3(m)(8) enables a Forex Pool that enters into a 
retail forex transaction to qualify as an ECP with respect thereto, 
irrespective of whether each participant in the Forex Pool is an ECP, 
if the Forex Pool satisfies the following conditions:
     It is not formed for the purpose of evading CFTC 
regulation under Section 2(c)(2)(B) or Section 2(c)(2)(C) of the CEA or 
related CFTC rules, regulations or orders governing Retail Forex Pools 
and retail forex transactions);
     It has total assets exceeding $10 million; and
     It is formed and operated by a registered CPO or by a CPO 
who is exempt from registration as such pursuant to CFTC Regulation 
Sec.  4.13(a)(3).
    CFTC Regulation Sec.  1.3(m)(8) as adopted requires that the Forex 
Pool not be formed for the purpose of evading CFTC regulation of Retail 
Forex Pools and retail forex transactions under CEA Section 2(c)(2)(B) 
or (C). A Forex Pool that is formed for that purpose would not be an 
ECP under new CFTC Regulation Sec.  1.3(m)(8).
    CFTC Regulation Sec.  1.3(m)(8) as adopted also requires that the 
Forex Pool have total assets exceeding $10 million to qualify as an 
ECP. The $10 million threshold is twice the current total asset 
threshold for a commodity pool to qualify as an ECP under CEA section 
1a(18)(A)(iv). The Commissions believe the $10,000,000 threshold is 
appropriate in light of the potential regulatory burdens a higher 
threshold might impose on smaller commodity pools. The Commissions 
believe that such a threshold, coupled with the other conditions of the 
rule, is sufficiently high to assure that the protections provided to 
retail forex transactions are not needed for these types of commodity 
pools. The Commissions will vigilantly monitor developments with 
respect to Forex Pools, including enforcement activity, and revisit 
this total asset threshold if warranted by subsequent events.
    Finally, CFTC Regulation Sec.  1.3(m)(8) as adopted requires that 
Forex Pool be formed \736\ and operated by a CPO registered as such 
with the CFTC or by a CPO who is exempt from registration as such 
pursuant to CFTC Regulation Sec.  4.13(a)(3). The Commissions believe 
that the registered CPO aspect of this condition is appropriate for 
several reasons, including that it will ensure

[[Page 30660]]

that the NFA oversees compliance by those registered CPOs relying on 
this new regulation.\737\ CPO registration also provides a clear means 
of addressing wrongful conduct.\738\ Although some commenters suggested 
that a CPO need only be ``subject to regulation under the CEA'' in 
order for a Forex Pool operated by that CPO to qualify as an ECP 
notwithstanding the look-through requirements, CFTC Regulation Sec.  
1.3(m)(8) instead requires that the CPO of a Forex Pool be registered 
as a CPO or be a CPO who is exempt from registration as such pursuant 
to CFTC Regulation Sec.  4.13(a)(3), alternative conditions supported 
by other commenters. The Commissions are requiring operation by a 
registered CPO, or by a CPO who is exempt from registration as such 
pursuant to CFTC Regulation Sec.  4.13(a)(3), as a condition for a 
Forex Pool to qualify for ECP status under CFTC Regulation Sec.  
1.3(m)(8) because, based on the data presented by commenters, CFTC 
enforcement actions involving Forex Pools rarely involve registered 
CPOs or CPOs exempt from registration as such.\739\
---------------------------------------------------------------------------

    \736\ Given that (i) many CPOs will be registering as such for 
the first time due to the CFTC's recent rescission of the exemption 
from CPO registration set forth in CFTC Regulation Sec.  4.13(a)(4) 
or its modification of the criteria for claiming the exclusion from 
the CPO definition in CFTC Regulation Sec.  4.5 and (ii) such pools 
were formed prior to their CPOs' registration as such, commodity 
pools formed prior to December 31, 2012 need not have been 
``formed'' by a registered CPO or by a CPO exempt from registration 
as such pursuant to CFTC Regulation Sec.  4.13(a)(3) in order to be 
qualified as ECPs under the new prong, so long as they are operated 
by a registered CPO on or before such date.
    \737\ See CPO/CTA Compliance Release at 11254 (noting that 
``registration allows the Commission to ensure that all entities 
operating collective investment vehicles participating in the 
derivatives markets meet minimum standards of fitness and 
competency''). See https://www.nfa.futures.org/NFA-registration/cpo/ for an overview of registration and related requirements 
for CPOs, their principals and their associated persons and https://www.nfa.futures.org/NFA-compliance/NFA-commodity-pool-operators/ for an overview of the compliance regime for registered 
CPOs overseen by the NFA. The CFTC anticipates that more CPOs will 
register in the coming months now that it has withdrawn the CFTC 
Regulation Sec.  4.13(a)(4) exemption from CPO registration, 
increasing the number of registered CPOs, in turn increasing the 
number of CPOs who can satisfy the registered CPO alternative under 
CFTC Regulation Sec.  1.3(m)(8)(iii).
    \738\ See CPO/CTA Compliance Release at 11254 (stating that 
``the [CFTC] has clear authority to take punitive and/or remedial 
action against registered entities for violations of the CEA or of 
the [CFTC''s regulations * * * [and] to deny or revoke registration, 
thereby expelling an individual or entity from serving as an 
intermediary in the industry'' and that the CFTC's reparations 
program and the NFA's arbitration program also are available avenues 
``to seek redress for wrongful conduct by a [CFTC] registrant'').
    \739\ As discussed above in note 729, only one of the 45 unique 
cases presented by commenters involved a pool with more than $10 
million in total assets and a registered CPO. Only two of those 
cases involved a pool operated by CPOs exempt from registration: in 
both of those cases, however, the CPO raised less than $10 million. 
In addition, one of those CPOs relied on the CFTC Regulation Sec.  
4.13(a)(4) CPO registration exemption. As discussed above, the CFTC 
has withdrawn that exemption.
---------------------------------------------------------------------------

    While NFA oversight of CPOs operating Retail Forex Pools is a 
useful criterion to determine whether an exclusion from the look-
through provisions of CEA section 1a(8)(A)(iv) and CFTC Regulation 
Sec.  1.3(m)(5) is warranted, the Commissions believe that Retail Forex 
Pools operated by CPOs exempt from registration as such pursuant to 
CFTC Regulation Sec.  4.13(a)(3) also merit relief from those look-
through provisions. On September 10, 2010, the CFTC published in the 
Federal Register a final rule revising the CPO registration exemption 
in CFTC Regulation Sec.  4.13(a)(3) to incorporate retail forex 
transactions into the transactions subject to the alternative caps on 
the use of commodity interests \740\ by CPOs claiming the 
exemption.\741\ The CFTC explained in the related Federal Register 
proposing release that the proposed change to CFTC Regulation Sec.  
4.13(a)(3) was part of a proposal to adopt a comprehensive regulatory 
scheme to implement the CRA with respect to retail forex transactions 
(``CRA-Related Forex Proposal'').\742\ The CFTC also explained that 
``the NFA-specified minimum security deposit for off-exchange retail 
forex transactions would be included among the amounts that cannot 
exceed 5 percent of the liquidation value of the pool's portfolio in 
order for the operator to claim the exemption from registration under 
Regulation 4.13(a)(3)''\743\ and that ``such amounts are roughly 
equivalent to initial margin and option premiums).'' \744\ The CFTC 
also described the CRA-Related Forex Proposal as ``amend[ing] existing 
regulations as needed to clarify their application to, and inclusion 
in, the new regulatory scheme for retail forex.'' \745\ More recently, 
notwithstanding the Dodd-Frank Act's addition of the look-through 
provision in CEA section 1a(8)(A)(iv), the CFTC determined to retain 
the exemption from CPO registration under Regulation 4.13(a)(3), 
reasoning that ``overseeing entities with less than five percent 
exposure to commodity interests is not the best use of the Commission's 
resources.'' \746\
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    \740\ The term ``commodity interest'' is defined in CFTC 
Regulation Sec.  1.3(yy), and includes ``[a]ny contract, agreement 
or transaction subject to [CFTC] jurisdiction under section 2(c)(2) 
of the [CEA].'' CFTC Regulation Sec.  1.3(yy)(3).
    \741\ See CFTC, Regulation of Off-Exchange Retail Foreign 
Exchange Transactions and Intermediaries; Final Rules, 75 FR 55410 
(Sept. 10, 2010).
    \742\ CFTC, Regulation of Off-Exchange Retail Foreign Exchange 
Transactions and Intermediaries; Proposed Rules, 75 FR 3282 (Jan. 
10, 2010).
    \743\ Section 12 of the NFA's Financial Requirements impose the 
following minimum security deposit requirements for retail forex 
transactions: (i) 2% of the notional value of transactions in the 
British pound, the Swiss franc, the Canadian dollar, the Japanese 
yen, the Euro, the Australian dollar, the New Zealand dollar, the 
Swedish krona, the Norwegian krone, and the Danish krone; (ii) 5% of 
the notional value of other transactions; (iii) for short options, 
the above amount plus the premium received; and (iv) for long 
options, the entire premium. See NFA Manual, available at https://www.nfa.futures.org/nfamanual/NFAManual.aspx?RuleID=SECTION%2012&Section=7.
    \744\ CFTC, Regulation of Off-Exchange Retail Foreign Exchange 
Transactions and Intermediaries; Proposed Rules, 75 FR 3282, 3287 
(Jan. 10, 2010).
    \745\ Id. at 3282.
    \746\ CPO/CTA Compliance Release at 11261. The CFTC also stated 
that:
    [t]he Commission believes that trading exceeding five percent of 
the liquidation value of a portfolio, or a net notional value of 
commodity interest positions exceeding 100 percent of the 
liquidation value of a portfolio, evidences a significant exposure 
to the derivatives markets, and that such exposure should subject an 
entity to the Commission's oversight.
    Id. at 11263.
---------------------------------------------------------------------------

    Given that, shortly before the adoption of the Dodd-Frank Act, the 
CFTC proposed to add retail forex transactions to those that can be 
entered into by CPOs claiming relief from registration as such under 
CFTC Regulation Sec.  4.13(a)(3), that it finalized that action shortly 
after the Dodd-Frank Act was adopted and that it recently left CFTC 
Regulation Sec.  4.13(a)(3) in place despite having proposed to 
withdraw that CPO registration exemption, and for the reasons described 
above, the Commissions believe CPOs exempt from registration as such 
pursuant to CFTC Regulation 4.13(a)(3) and operating Retail Forex Pools 
should be able to continue to do so outside the retail forex regime.
    Section 712(d)(2)(A) of the Dodd-Frank Act grants the Commissions 
the authority to adopt such rules related to the ECP definition as the 
Commissions determine are necessary and appropriate, in the public 
interest, and for the protection of investors. Based on commenters' 
views, the Commissions have determined that CFTC Regulation Sec.  
1.3(m)(8) as adopted is necessary and appropriate because the statutory 
look-through provision, if strictly implemented, would subject Forex 
Pools operated by CPOs that are sophisticated, professional asset 
managers to an array of additional compliance costs and deprive them of 
access to swap dealers as counterparties when engaging in retail forex 
transactions.\747\ The Commissions also have determined that it is 
appropriate to limit the availability of ECP status under CFTC 
Regulation Sec.  1.3(m)(8) to Forex

[[Page 30661]]

Pools operated by registered CPOs or by CPOs exempt from registration 
as such pursuant to CFTC Regulation Sec.  4.13(a)(3).\748\ The 
conditions in CFTC Regulation Sec.  1.3(m)(8) also are appropriate in 
that they require Forex Pools seeking ECP status thereunder to have 
total assets exceeding $10 million. Historically, CFTC enforcement 
actions have involved fewer instances of misconduct by CPOs of Forex 
Pools with total assets above this threshold.\749\
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    \747\ The nature of a swap dealer's business activities and 
assets may detract from what is considered regulatory capital for an 
FCM or RFED engaging in retail forex transactions, thereby making it 
difficult for some swap dealers to dually register both as such and 
as an FCM or RFED in order to do retail forex business. As an ECP, a 
Forex Pool's choice of retail forex transaction counterparties will 
not be limited to Enumerated Counterparties, and thus may include 
swap dealers.
    \748\ The Commissions note that the statistics presented by 
commenters indicate that Forex Pool misconduct by registered CPOs 
and those exempt from CPO registration is significantly rarer than 
Forex Pool misconduct by otherwise unregistered CPOs. See letter 
from the GFXD II.
    \749\ See letter from Sidley (showing that 6 of the 27 cases 
presented involved more than $10 million).
---------------------------------------------------------------------------

    The Commissions have determined that CFTC Regulation Sec.  
1.3(m)(8) is in the public interest in that it will make available a 
category of counterparty (i.e., swap dealers) that likely would not 
otherwise be available, and help to assure that sophisticated, 
professional managers operating qualifying Forex Pools can continue to 
engage in retail forex transactions. The Commissions have determined 
that the conditions of CFTC Regulation Sec.  1.3(m)(8) are sufficient 
for the protection of investors for the reasons discussed above, such 
as a significant reduction in the incidence of Forex Pool misconduct 
among CPOs, whether registered as such or exempt therefrom, operating 
Forex Pools with more than $10 million in total assets. The Commissions 
intend to monitor developments in the Forex Pool area and will revisit 
the conditions of this regulation as warranted by subsequent events.

IV. Definitions of ``Major Swap Participant'' and ``Major Security-
Based Swap Participant''

    The statutory definitions of ``major swap participant''\750\ and 
``major security-based swap participant''\751\ (collectively, ``major 
participant'') encompass any person that is not a swap dealer or 
security-based swap dealer \752\ and that satisfy any one of three 
alternative statutory tests that encompass a person: (i) That maintains 
a ``substantial position'' in swaps or security-based swaps for any of 
the major swap categories as determined by the Commissions; (ii) whose 
outstanding swaps or security-based swaps create substantial 
counterparty exposure that could have serious adverse effects on the 
financial stability of the U.S. banking system or financial 
markets;\753\ or (iii) that is a ``financial entity'' that is ``highly 
leveraged'' relative to the amount of capital it holds (and that is not 
subject to capital requirements established by an appropriate Federal 
banking agency) and maintains a ``substantial position'' in outstanding 
swaps or security-based swaps in any major category as determined by 
the Commissions.\754\ The first--and only the first--of those three 
statutory tests explicitly excludes: (i) Positions held for ``hedging 
or mitigating commercial risk,'' and (ii) positions maintained by any 
employee benefit plan as defined in sections 3(3) and (32) of ERISA for 
the ``primary purpose of hedging or mitigating any risk directly 
associated with the operation of the plan.''\755\
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    \750\ CEA section 1a(33).
    \751\ Exchange Act section 3(a)(67).
    \752\ As discussed above, a person may be designated as a dealer 
for particular activities involving swaps or security-based swaps, 
or particular swap or security-based swap activities, without being 
deemed to be a dealer with regard to other categories or activities. 
See part II.E, supra. To the extent that a person is subject to that 
type of limited designation as a swap dealer or security-based swap 
dealer, the person may be subject to being a major swap participant 
or a major security-based swap participant in connection with 
positions that fall outside of that limited dealer designation.
    \753\ See CEA section 1a(33)(A)(ii); Exchange Act section 
3(a)(67)(A)(ii)(II).
    \754\ See CEA section 1a(33)(A)(iii); Exchange Act section 
3(a)(67)(A)(ii)(III).
    \755\ See CEA section 1a(33)(A)(i); Exchange Act section 
3(a)(67)(A)(ii)(I).
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    The statutory definitions require the Commissions to define the 
term ``substantial position'' at the threshold determined to be prudent 
for the effective monitoring, management, and oversight of entities 
that are systematically important or can significantly impact the 
financial system of the U.S. In setting these thresholds, the 
Commissions are required to consider the person's relative position in 
uncleared as opposed to cleared swaps and may take into consideration 
the value and quality of collateral held against counterparty 
exposures.\756\
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    \756\ See CEA section 1a(33)(B) and Exchange Act section 
3(a)(67)(B).
---------------------------------------------------------------------------

    The statutory definitions further permit the Commissions to limit 
the scope of the major participant designations so that a person may be 
designated as a major participant in certain categories of swaps or 
security-based swaps, but not all categories.\757\
---------------------------------------------------------------------------

    \757\ See CEA section 1a(33)(C); Exchange Act section 
3(a)(67)(C).
---------------------------------------------------------------------------

    In addition, the ``major swap participant'' definition excludes 
certain entities whose primary business is providing financing and that 
use derivatives for the purpose of hedging underlying commercial risks 
related to interest rate and foreign currency exposures, 90 percent or 
more of which arise from financing that facilitates the purchase or 
lease of products, 90 percent or more of which are manufactured by the 
parent company or another subsidiary of the parent company.\758\ The 
``major security-based swap participant'' definition does not contain 
this type of exclusion.
---------------------------------------------------------------------------

    \758\ See CEA section 1a(33)(D).
---------------------------------------------------------------------------

    As detailed in the Proposing Release, the major participant 
definitions focus on the market impacts and risks associated with a 
person's swap and security-based swap positions.\759\ This is in 
contrast to the definitions of ``swap dealer'' and ``security-based 
swap dealer,'' which focus on a person's activities and account for the 
amount or significance of those activities only in the context of the 
de minimis exception. However, persons that meet the major participant 
definitions in large part must follow the same statutory requirements 
that will apply to swap dealers and security-based swap dealers.\760\ 
In this way, the statute applies comprehensive regulation to entities 
whose swap or security-based swap activities do not cause them to be 
dealers, but nonetheless could pose a high degree of risk to the U.S. 
financial system generally.\761\
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    \759\ See Proposing Release, 75 FR at 80185.
    \760\ In particular, under CEA section 4s and Exchange Act 
section 15F, dealers and major participants in swaps or security-
based swaps generally are subject to the same types of margin, 
capital, business conduct and certain other requirements, unless an 
exclusion applies. See CEA section 4s(h)(4), (5); Exchange Act 
section 15F(h)(4), (5). See also CFTC, Business Conduct Standards 
for Swap Dealers and Major Swap Participants with Counterparties; 
Final Rule, 77 FR 9733 (Feb. 17, 2012); Notice of Proposed 
Rulemaking: Capital requirements of swap dealers and major swap 
participants, 76 FR 27802 (May 12, 2011); and SEC, Notice of 
Proposed Rulemaking: Business Conduct Standards for Security-Based 
Swap Dealers and Major Security-Based Swap Participants, Securities 
Exchange Act Release No. 64766, 76 FR 42396 (July 18, 2011).
    \761\ As discussed below, the tests of the major participant 
definitions use terms--particularly ``systemically important,'' 
``significantly impact the financial system'' or ``create 
substantial counterparty exposure''--that denote a focus on entities 
that pose a high degree of risk through their swap and security-
based swap activities. In addition, the link between the major 
participant definitions and risk was highlighted during the 
Congressional debate on the statute. See 156 Cong. Rec. S5907 (daily 
ed. July 15, 2010) (colloquy between Senators Hagen and Lincoln, 
discussing how the goal of the major participant definitions was to 
``focus on risk factors that contributed to the recent financial 
crisis, such as excessive leverage, under-collateralization of swap 
positions, and a lack of information about the aggregate size of 
positions'').
---------------------------------------------------------------------------

    Although the two major participant definitions are similar, they 
address instruments that reflect different types of risks and that can 
be used by end-users and other market participants for

[[Page 30662]]

different purposes. Interpretation of the definitions must account for 
those differences as appropriate.
    The Commissions in the Proposing Release proposed to further define 
the ``major swap participant'' and ``major security-based swap 
participant'' definitions, by specifically addressing: (i) The 
``major'' categories of swaps or security-based swaps; (ii) the meaning 
of ``substantial position''; (iii) the meaning of ``hedging or 
mitigating commercial risk''; (iv) the meaning of ``substantial 
counterparty exposure that could have serious adverse effects on the 
financial stability of the United States banking system or financial 
markets''; and (v) the meanings of ``financial entity'' and ``highly 
leveraged.'' The proposal also addressed the period of time that a 
major participant would have to register (as well as the minimum length 
of time for being a major participant), the limited purpose 
designations of major participants, the exclusion for ERISA plan 
hedging positions, and certain additional interpretive issues.
    After considering commenters' views, the Commissions are adopting 
final rules further defining the meaning of major participant.
    As discussed below, the Commissions also are directing their 
respective staffs to report separately as to whether changes are 
warranted to any of the rules implementing the major participant 
definitions. These staff reports will help the Commissions evaluate the 
``major swap participant and ``major security-based swap participant'' 
definitions, including whether new or revised tests or approaches would 
be appropriate for identifying major participants.\762\
---------------------------------------------------------------------------

    \762\ See part V, infra.
---------------------------------------------------------------------------

A. ``Major'' Categories of Swaps and Security-Based Swaps

1. Proposed Approach
    The first and third tests of the statutory major participant 
definitions encompass entities that maintain a substantial position in 
a ``major'' category of swaps or security-based swaps.\763\
---------------------------------------------------------------------------

    \763\ See CEA section 1a(33)(A)(i), (iii); Exchange Act section 
3(a)(67)(a)(2)(i), (iii).
---------------------------------------------------------------------------

    In the Proposing Release, the Commissions proposed to designate 
four ``major'' categories of swaps and two ``major'' categories of 
security-based swaps. These categories sought to reflect the risk 
profiles of the various types of swaps and security-based swaps, and 
the different purposes for which end-users use those instruments. The 
Proposing Release also noted the importance of not parsing the 
``major'' categories so finely as to base the ``substantial position'' 
thresholds on unduly narrow risks and reduce those thresholds' 
effectiveness as risk measures.\764\
---------------------------------------------------------------------------

    \764\ See Proposing Release, 75 FR at 80186-87.
---------------------------------------------------------------------------

    The proposed four ``major'' categories of swaps were rate swaps, 
credit swaps, equity swaps and other commodity swaps.\765\ Rate swaps 
would encompass any swap which is primarily based on one or more 
reference rates, such as swaps of payments determined by fixed and 
floating interest rates, currency exchange rates, or other monetary 
rates. Credit swaps would encompass any swap that is primarily based on 
default, bankruptcy and other credit-related risks related to, or the 
total returns on, instruments of indebtedness (including loans), 
including but not limited to any swap primarily based on one or more 
broad-based indices related to debt instruments, and any swap that is a 
broad-based index credit default swap or total return swap. Equity 
swaps would encompass any swap that is primarily based on equity 
securities, such as any swap primarily based on one or more broad-based 
indices of equity securities, including any total return swap on one or 
more broad-based equity indices. Other commodity swaps would encompass 
any swap not included in any of the first three categories, and would 
generally include, for example and not by way of limitation, any swap 
for which the primary underlying item is a physical commodity or the 
price or any other aspect of a physical commodity. The four categories 
were intended to cover all swaps, and each swap would be in the 
category that most closely describes the primary item underlying the 
swap.\766\
---------------------------------------------------------------------------

    \765\ See proposed CFTC Regulation Sec.  1.3(iii).
    \766\ The statutory definition of ``swap'' lists 22 different 
types of swaps.
---------------------------------------------------------------------------

    The Commissions proposed to designate two ``major'' categories of 
security-based swaps.\767\ The first category would encompass any 
security-based swap that is based, in whole or in part, on one or more 
instruments of indebtedness (including loans), or a credit event 
relating to one or more issuers or securities, including but not 
limited to any security-based swap that is a credit default swap, total 
return swap on one or more debt instruments, debt swaps, or debt index 
swaps. The second category would encompass any other security-based 
swaps not included in the first category, including for example, swaps 
on equity securities or narrow-based security indices comprised of 
equity securities.\768\ These proposed categories were based on the 
different uses of these types of security-based swaps, and were 
consistent with market statistics and infrastructures that distinguish 
between those types of security-based swaps.\769\
---------------------------------------------------------------------------

    \767\ See proposed Exchange Act rule 3a67-2.
    \768\ The second category also encompasses all security-based 
swaps on narrow based indices that are comprised of both debt and 
equity components.
    \769\ See Proposing Release, 75 FR at 80187.
---------------------------------------------------------------------------

2. Commenters' Views
    Certain commenters requested clarification regarding how the major 
categories would be applied. One commenter particularly requested 
additional clarity as to how the proposed categories will apply to 
mixed swaps and to swaps that are based on debt that is convertible to 
equity,\770\ while another commenter requested additional clarity as to 
the status of certain mortgage-related transactions.\771\
---------------------------------------------------------------------------

    \770\ See letter from ISDA I.
    \771\ See letter from Freddie Mac.
---------------------------------------------------------------------------

    One commenter suggested that the final rules should include a 
catch-all provision to allow the Commissions to review large positions 
that appear to be structured to evade proper categorization, and that 
market participants should suggest the protocols for categorization of 
swaps or security-based swaps.\772\
---------------------------------------------------------------------------

    \772\ See meeting with Professor Darrell Duffie, Stanford 
University Graduate School of Business (``Duffie'') on February 2, 
2011.
---------------------------------------------------------------------------

    One commenter suggested that the rate swap category should be 
divided between interest rates and currencies, and that energy, 
agriculture and metals swaps should be separate categories.\773\ 
Another commenter expressed the view that creation of a separate 
category for cross currency swaps could lead to confusion among market 
participants who may feel obligated to bifurcate cross currency swaps 
between two categories.\774\ Some commenters expressed general support 
for the major categories as proposed.\775\
---------------------------------------------------------------------------

    \773\ See letter from Better Markets I.
    \774\ See letter from ACLI.
    \775\ See letters from Barnard, ISDA I and MetLife; see also 
letter from American Insurance Association (``AIA'') (agreeing that 
the defined major categories would cover substantially all 
significant swaps and security-based swaps).
---------------------------------------------------------------------------

3. Final Rules
    After considering the issue in light of comments received, the 
Commissions are adopting final rules designating ``major'' categories 
of swaps and security-based swaps consistent with the proposal. 
Accordingly, the final rules provide that the four ``major'' categories 
of swaps are rate swaps,

[[Page 30663]]

credit swaps, equity swaps and other commodity swaps.\776\ The two 
``major'' categories of security-based swaps are debt security-based 
swaps \777\ and other security-based swaps.\778\
---------------------------------------------------------------------------

    \776\ See CFTC Regulation Sec.  1.3(iii). The four major 
categories of swaps are the same as the asset classes used in the 
CFTC Regulations relating to SDRs and reporting, except that the 
asset classes for interest rate swaps and foreign exchange 
transactions are combined into the single rate swap major category 
of swaps. See CFTC, Swap Data Repositories: Registration Standards, 
Duties and Core Principles; Final Rule, 76 FR 54538 (Sept. 1, 2011) 
and Swap Data Recordkeeping and Reporting Requirements; Final Rule, 
77 FR 2136 (Jan. 13, 2012).
    \777\ The name of the first major category of security-based 
swaps has been changed to ``debt security-based swaps'' in this 
Adopting Release from ``security-based credit derivatives'' in the 
Proposing Release. This change more accurately reflects the products 
encompassed by this category, particularly total return swaps on 
debt instruments. See Exchange Act rule 3a67-2(a).
     In addition, the final rules defining the major categories for 
purposes of the major participant definitions remove a cross-
reference to the corresponding dealer definitions under the CEA or 
the Exchange Act to clarify that the rules apply only in the context 
of the major participant definitions, and not the dealer 
definitions. See CFTC Regulation Sec.  1.3(iii); Exchange Act rule 
3a67-2.
    \778\ See Exchange Act rule 3a67-2(b).
---------------------------------------------------------------------------

    The Commissions believe that it is not necessary to further divide 
the proposed categories or add new categories for swaps and security-
based swaps for purposes of the major participant definitions. We 
believe that maintaining a large number of narrow categories of swaps 
and security-based swaps would increase the possibility of confusion by 
market participants with regard to categorizing the swaps and security-
based swaps in which they transact. The Commissions also continue to 
believe that it is important not to parse the ``major'' categories so 
finely as to base the ``substantial position'' thresholds on unduly 
narrow groupings that would reduce those thresholds' effectiveness as 
risk measures. Categories that are broad and clearly delineated further 
should help prevent action to evade designation as a major participant 
in a particular ``major'' category.
    While we believe that these rules in general are sufficiently clear 
to allow each swap and security-based swap to be placed in the 
appropriate category, we are mindful of the commenters' request for 
guidance with regard to certain circumstances. In the case of mixed 
swaps, we would expect that the instrument would be placed in the 
``swap'' and ``security-based swap'' categories that are consistent 
with the underlying attributes that cause such instrument to be a mixed 
swap.\779\ Also, swaps or security-based swaps that are based on more 
than one item, instrument or risk, should be placed in the category 
that most closely describes the primary item, instrument or risk 
underlying the swap or security-based swap.\780\
---------------------------------------------------------------------------

    \779\ The Commissions have proposed rules regarding the 
regulation of mixed swaps. See Product Definitions Proposal, note 3, 
supra.
    \780\ In the case of instruments on debt securities that are 
convertible into equity, in general we would expect the instrument 
to be categorized based on its status (as debt or equity) at the 
time of evaluation.
---------------------------------------------------------------------------

B. ``Substantial Position''

1. Proposed Approach
    The major participant definitions require that the Commissions 
define a ``substantial position'' in swaps or security-based swaps at a 
threshold that we determine to be ``prudent for the effective 
monitoring, management, and oversight'' of entities that are 
systemically important or can significantly impact the U.S. financial 
system. The definitions further require that we consider a person's 
relative position in uncleared and cleared swaps or security-based 
swaps, and permit us to consider the value and quality of collateral 
held against counterparty exposure.\781\
---------------------------------------------------------------------------

    \781\ See CEA section 1a(33)(B); Exchange Act section 
3(a)(67)(B).
---------------------------------------------------------------------------

    The proposed rules provided that a person would have a 
``substantial position'' in swaps or security-based swaps if the daily 
average current uncollateralized exposure associated with its swap or 
security-based swap positions in a major category in a calendar quarter 
amounted to $1 billion or more (or $3 billion in the case of rate 
swaps).\782\ A person also would have a ``substantial position'' if the 
daily average of the sum of the current uncollateralized exposure plus 
the potential future exposure associated with its positions in a major 
category in a calendar quarter amounted to $2 billion or more (or $6 
billion for the rate swap category).\783\
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    \782\ See proposed CFTC Regulation Sec.  1.3(jjj)(1); proposed 
Exchange Act rule 3a67-3(a)(1), (d).
    \783\ See proposed CFTC Regulation Sec.  1.3(jjj)(1); proposed 
Exchange Act rule 3a67-3(a)(2), (d).
---------------------------------------------------------------------------

    The proposed rules did not prescribe any particular methodology for 
measuring current exposure or valuing collateral posted, and instead 
provided that the method used should be consistent with counterparty 
practices and industry practices generally.\784\ The proposed rules 
also provided that an entity could calculate its current 
uncollateralized exposure by accounting for netting agreements on a 
counterparty-by-counterparty basis,\785\ and the Proposing Release set 
forth a method for allocating any residual uncollateralized exposure to 
a counterparty that remains following netting.\786\
---------------------------------------------------------------------------

    \784\ See proposed CFTC Regulation Sec.  1.3(jjj)(2)(ii); 
proposed Exchange Act rule 3a67-3(a)(2)(i).
    \785\ See proposed CFTC Regulation Sec.  1.3(jjj)(2)(iii); 
proposed Exchange Act rule 3a67-3(b)(3).
    \786\ See Proposing Release, 75 FR at 80190.
---------------------------------------------------------------------------

    The proposed potential future exposure test was based on the risk-
adjusted notional amount of the entity's swap and security-based swap 
positions, consistent with a test used by bank regulators for purposes 
of setting capital standards.\787\ The test also excluded or lowered 
the potential exposure associated with certain lower-risk 
positions.\788\ In addition, the measures of potential future exposure 
would be discounted by up to 60 percent to reflect the risk mitigation 
provided by netting agreements,\789\ and would further be decreased by 
80 percent for positions subject to central clearing or daily mark-to-
market margining.\790\
---------------------------------------------------------------------------

    \787\ See id. at 80191-92.
    \788\ See proposed CFTC Regulation Sec.  1.3(jjj)(3)(iii); 
proposed Exchange Act rule 3a67-3(c)(2)(i)(C), (D).
    \789\ See proposed CFTC Regulation Sec.  1.3(jjj)(3)(ii)(B); 
proposed Exchange Act rule 3a67-3(c)(2)(ii).
    \790\ See proposed CFTC Regulation Sec.  1.3 (jjj)(3)(iii)(A); 
proposed Exchange Act rule 3a67-3(c)(3)(i). This discount for daily 
margining would be available even in the presence of a threshold or 
a minimum transfer amount, so long as the threshold and the minimum 
transfer amount (if the latter exceeds $1 million) are separately 
added to the entity's current exposure for purposes of the current 
exposure plus potential future exposure test. See proposed CFTC 
Regulation Sec.  1.3(jjj)(3)(iii)(B); proposed Exchange Act rule 
3a67-3(c)(3)(ii).
---------------------------------------------------------------------------

2. Commenters' Views
a. Basis for Regulating Major Participants and Alternative Approaches 
for Identifying ``Substantial Positions''
    Several commenters expressed the view that the major participant 
definition is intended to address entities whose swap or security-based 
swap positions pose systemic risk,\791\ while one commenter took the 
contrary view that the definition also is intended to address the 
significance of an entity's swap or security-based swap positions (as 
well as the risk those positions pose).\792\
---------------------------------------------------------------------------

    \791\ E.g., letters from BlackRock I and MFA I.
    \792\ See letter from Better Markets I.
---------------------------------------------------------------------------

    One commenter stated that the proposal inappropriately sought to 
account for the risk posed by the potential default of multiple 
entities, rather than a single entity.\793\ Some commenters suggested 
that the analysis should account for the concentration of the risk 
posed by an entity's

[[Page 30664]]

positions,\794\ and one commenter suggested that the analysis should 
not account for individual categories of swaps or security-based 
swaps.\795\
---------------------------------------------------------------------------

    \793\ See letter from BlackRock I.
    \794\ See letters from Black Rock I (suggesting a two-step 
process that accounts for the reduced risk associated with entities 
whose positions are distributed among several counterparties); CCMR 
I and APG Algemene Pensioen Groep NV (``APG'').
    \795\ See letter from NYCBA Committee.
---------------------------------------------------------------------------

b. Levels of Proposed ``Substantial Position'' Thresholds
    A number of commenters expressed the view that the proposed 
thresholds are inappropriately low.\796\ Some commenters stated the 
thresholds initially should be high, with later revisions based on 
market data.\797\
---------------------------------------------------------------------------

    \796\ See letters from ABC/CIEBA (indirectly referring to AIG 
Financial Products, and noting that it had $400 billion in notional 
positions and defaulted when it was required to post approximately 
$100 billion in collateral); BG LNG I (alluding to lack of systemic 
impact associated with Enron's failure, and suggesting that the 
Commissions convene an advisory committee to develop thresholds); 
NCGA/NGSA I (alluding to corporate financial losses involving 
derivatives that have exceeded the proposed thresholds without 
significantly impacting the U.S. financial system); ACLI (supporting 
increase in proposed thresholds under the CEA to $4 billion current 
uncollateralized exposure and $8 billion current uncollateralized 
exposure plus potential future exposure); and Chesapeake Energy.
    \797\ See letters from MFA dated February 25, 2011 (``MFA II'') 
(stating that thresholds initially should be set higher, while later 
survey-based thresholds should be based on potential systemic risk 
impact and the cost of performing the calculations); CCMR I (stating 
that the Commissions presently have insufficient data to determine 
appropriate thresholds, and that thresholds initially should be 
high); BlackRock I (stating that the Commissions should refrain from 
establishing thresholds if sufficient information is not available); 
and Freddie Mac. Two commenters particularly addressed the proposed 
thresholds applicable to rate swaps. See letters from ACLI and 
MetLife.
---------------------------------------------------------------------------

    Some commenters did not oppose the proposed thresholds or expressed 
support for the thresholds (though many of those commenters separately 
raised issues about the underlying tests),\798\ while two commenters 
supported lowering the proposed thresholds.\799\ Some commenters took 
the position that the thresholds should be adjusted over time to 
reflect factors such as inflation or market characteristics.\800\
---------------------------------------------------------------------------

    \798\ See, e.g., letters from ACLI, Fidelity, SIFMA AMG dated 
Feb. 22, 2011 (``SIFMA AMG II'') and Vanguard (supporting proposed 
limits for credit swaps, equity swaps and other commodity swaps, but 
not rate swaps).
    \799\ See letters from AFR (supporting use of a $500 million 
uncollateralized exposure threshold, or a $1 billion current 
exposure plus potential future exposure threshold, with higher 
thresholds for rate swaps) and Greenberger.
    \800\ See, e.g., letters from MFA I (referring to inflation and 
measures such as the amount of equity in the U.S. banking system) 
and ISDA I (referring to evolution of the size and fundamental 
characteristics of the markets, and changes to valuation 
methodologies and economic conditions).
---------------------------------------------------------------------------

c. Current Uncollateralized Exposure Test
    Measures of exposure and valuation of collateral--A number of 
commenters supported the Proposing Release's position that the current 
exposure analysis not prescribe any methodology for measuring exposure 
or valuing collateral.\801\ On the other hand, some commenters 
requested explicit approval of particular methodologies,\802\ a good 
faith safe harbor,\803\ or regulator-prescribed measurement 
standards.\804\ Some commenters emphasized the need to be able to post 
non-cash collateral in connection with positions.\805\ Two commenters 
requested codification of the proposal's position that operational 
delays associated with the daily exchange of collateral would not lead 
to current uncollateralized exposure for purposes of the analysis.\806\
---------------------------------------------------------------------------

    \801\ See letters from Fidelity, ICI I, ISDA I and MFA I.
    \802\ See letter from BlackRock I. Consistent with the proposal, 
the final rules contemplate the use of industry standard practices 
in the calculation of current exposure and potential future 
exposure. As with other rules adopted by the Commissions, a market 
participant may raise questions with the Commissions about the 
participant's approach to addressing the final rules--including its 
use of particular methodologies--for further guidance as may be 
necessary or appropriate.
    \803\ See letter from FSR I (particularly noting difficulty of 
valuing illiquid or bespoke positions).
    \804\ See letter from Better Markets I.
    \805\ See, e.g., letters from ACLI, CDEU and MetLife.
    \806\ See letters from SIFMA AMG II and Vanguard.
---------------------------------------------------------------------------

    Netting issues--Some commenters stated that the proposed netting 
provisions should be expanded to encompass additional products that may 
be netted for bankruptcy purposes.\807\ One commenter took the view 
that these provisions should be expanded across multiple netting 
agreements to the extent that offsets are permitted.\808\ One commenter 
asked for clarification as to the scope of the netting provisions,\809\ 
and one commenter expressed general support for the proposed netting 
provisions.\810\
---------------------------------------------------------------------------

    \807\ See letters from ISDA I (specifically addressing 
securities contracts and forward contracts); NRG Energy 
(specifically addressing forwards); and APG (specifically addressing 
securities options and forwards).
    \808\ See letter from FSR I.
    \809\ See letter from Fidelity (seeking confirmation that 
``master netting agreement'' can include an ISDA Master Agreement).
    \810\ See letter from ACLI.
---------------------------------------------------------------------------

    Allocation of uncollateralized exposure--Some commenters requested 
that the final rules incorporate the principles, articulated in the 
Proposing Release, for allocating any uncollateralized exposure that 
remains following netting.\811\ Other commenters raised concerns that 
those principles were based on an unwarranted assumption that 
collateral is specifically earmarked to particular transactions.\812\
---------------------------------------------------------------------------

    \811\ See letters from SIFMA AMG II and Vanguard.
    \812\ See letters from FSR I and ISDA I; see also letter from 
MetLife (suggesting pro rata allocation of uncollateralized current 
exposure among each major category with current exposure).
---------------------------------------------------------------------------

d. Potential Future Exposure Test
    General concerns and suggested alternative approaches--Some 
commenters disagreed with the Proposing Release's statement that the 
potential future exposure analysis would evaluate potential changes in 
the value of a swap or security-based swap over the remaining life of 
the contract; those commenters stated that the test instead should 
focus on potential volatility during the time it would take for a non-
defaulting party to close out a defaulting party's positions.\813\
---------------------------------------------------------------------------

    \813\ See letters from SIFMA AMG II and Vanguard.
---------------------------------------------------------------------------

    Some commenters criticized the tables setting forth the risk 
adjustments used to calculate potential future exposure.\814\ 
Commenters further suggested using, as alternatives, value-at-risk 
measures or other models,\815\ or the ``standardized method'' under 
Basel II.\816\ Commenters also argued that risk adjustments should 
provide a greater discount to credit swaps on ``investment grade'' 
instruments than to other credit swaps, that index CDS should be 
subject to a greater discount than single name CDS, and that there 
should be a lower discount factor for CDS of shorter maturity.\817\ One 
commenter generally supported the proposed conversion factors and 
adjustments.\818\
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    \814\ See letters from Riverside Risk Advisors LLC (``Riverside 
Risk Advisors'') (criticizing, among other aspects, discontinuities 
in table, a failure to account for how far a swap is in or out of 
the money, the use of a single discount factor for credit default 
swaps, the fact that the risk factor for short-term equity swaps is 
lower than the risk factor for credit swaps, and the fact that 
equity swaps do not distinguish between high-volatility and low-
volatility stocks, as well as the failure to address portfolio 
effects of diversification and correlation, and ``wrong-way'' risk 
in the form of ``an adverse correlation between counterparty default 
risk and the value of its derivatives contracts''); and ISDA I 
(noting that the conversion factors were calibrated more than 15 
years ago and were not designed for later instruments such as credit 
products).
    \815\ See letters from Riverside Risk Advisors (supporting 
giving end-users the option to use a model-based approach); and 
Better Markets I (supporting use of a value-at-risk calculation).
    \816\ See letter from ISDA I.
    \817\ See letters from AIMA I and MFA I.
    \818\ See letter from MetLife.
---------------------------------------------------------------------------

    Some commenters expressed the view that measures of potential 
future exposure should be superseded by negotiated independent amounts 
or regulator-required initial margin.\819\ Some commenters also argued 
that

[[Page 30665]]

excess posted collateral or net in-the-money positions should be offset 
against potential future exposure.\820\
---------------------------------------------------------------------------

    \819\ See letters from SIFMA AMG II and Vanguard.
    \820\ See, e.g., letters from AIMA I, Fidelity, MFA I, SIFMA AMG 
II and Vanguard.
---------------------------------------------------------------------------

    Potential future exposure measures for lower-risk positions--Some 
commenters stated that the proposal to cap potential future exposure 
when a person buys credit protection using a credit default swap should 
be expanded to apply to any position with a fixed downside risk.\821\ 
Commenters also suggested that the potential future exposure associated 
with purchases of credit protection be further discounted,\822\ while 
one commenter took the position that purchases of credit default swaps 
should be excluded from the potential future exposure test.\823\ 
Commenters also addressed the appropriate discount rate for calculating 
the net present value of unpaid premiums.\824\
---------------------------------------------------------------------------

    \821\ See letters from MFA I (citing fixed portions of interest 
rate swaps), MetLife (citing purchased options as well as CDS), ACLI 
and Ropes & Gray.
    \822\ See letters from MFA I (arguing that the tightening of 
credit spreads would imply a healthy credit environment) and AIMA; 
see also meeting with MFA on February 14, 2011.
    \823\ See letter from Vanguard.
    \824\ See letter from MFA I (suggesting the possible use of the 
LIBOR/Swap rate) and AIMA I.
---------------------------------------------------------------------------

    Netting issues--One commenter stated that the proposal's netting 
provisions did not adequately account for the risk mitigation 
associated with hedged positions,\825\ while another commenter asked 
that the proposed netting provisions be clarified and simplified.\826\ 
One commenter supported the proposed netting approach.\827\
---------------------------------------------------------------------------

    \825\ See letter from ISDA I.
    \826\ See letter from SIFMA AMG II.
    \827\ See letters from ACLI.
---------------------------------------------------------------------------

    Discount for cleared or margined positions--Several commenters took 
the view that cleared positions should be excluded entirely from the 
potential future exposure analysis, rather than only being subject to 
an 80 percent discount,\828\ and some commenters also supported a 
complete exclusion for positions subject to daily mark-to-market 
margining.\829\ One commenter suggested a minimum 98 percent reduction 
for positions subject to central clearing or mark-to-market 
margining,\830\ while one commenter suggested that there be a higher 
discount for positions subject to the posting of initial margin.\831\
---------------------------------------------------------------------------

    \828\ See, e.g., letters from MFA I, SIFMA AMG II and Vanguard.
    \829\ See letters from BG LNG I, Fidelity and ICI I.
    \830\ See letter from ISDA I.
    \831\ See letter from FHLB I (suggesting 90 percent discount for 
cleared swaps and for uncleared swaps for which initial margin has 
been posted; alternatively suggesting that posted initial margin be 
subtracted from the calculated amount).
---------------------------------------------------------------------------

    Some commenters also stated that there should be a partial discount 
provided in connection with positions for which mark-to-market 
margining is done less than daily,\832\ and that there should be a 
discount for positions that are margined using security interests or 
liens.\833\ On the other hand, one commenter stated that there is no 
basis for providing any discount for marked-to-market positions.\834\
---------------------------------------------------------------------------

    \832\ See letters from Fidelity and Canadian Master Asset 
Vehicle I and Master Asset Vehicle II (``Canadian MAVs'').
    \833\ See letter from FHLB I (giving as an example swaps 
collateralized by security interests in real estate, oil or gas 
interests, or by first liens on financial assets).
    \834\ See letter from Better Markets I; see also letter from AFR 
(generally opposing use of risk adjustments, but suggesting that any 
such discounts should be larger for cleared positions).
---------------------------------------------------------------------------

    One commenter requested that the rule language codify language in 
the Proposing Release as to when a position is subject to daily mark-
to-market margining.\835\ A number of commenters addressed proposed 
rule language that was intended to clarify that the discount for daily 
mark-to-market margining would be available even in the presence of 
thresholds and minimum transfer amounts.\836\
---------------------------------------------------------------------------

    \835\ See letter from SIFMA AMG II.
    \836\ See letter from CDEU (stating that the proposal could 
overstate an entity's future exposure, and favoring use of the lower 
of the calculated potential future exposure or the CSA threshold); 
see also letters from SIFMA AMG II and Vanguard.
---------------------------------------------------------------------------

    Two commenters supported the proposed approach in general.\837\ One 
commenter specifically supported the proposed 80 percent reduction for 
positions subject to daily mark-to-market margining,\838\ and one 
commenter specifically supported a reduction for cleared 
positions.\839\
---------------------------------------------------------------------------

    \837\ See letters from ACLI and MetLife.
    \838\ See letter from Vanguard.
    \839\ See letter from Better Markets I.
---------------------------------------------------------------------------

    Additional issues regarding the potential future exposure test--
Some commenters argued that the Commissions should clarify how the 
categories in the proposed potential future exposure tables would be 
applied, given how those differ from the proposed ``major'' categories 
of swaps and security-based swaps.\840\
---------------------------------------------------------------------------

    \840\ See letters from SIFMA AMG II and Vanguard.
---------------------------------------------------------------------------

    Some commenters raised concerns that the proposed use of an 
instrument's ``effective notional'' amount is ambiguous.\841\ 
Commenters also took the position that for purposes of the potential 
future exposure calculation, notional amounts should be adjusted to 
reflect delta weighting,\842\ that the measure of duration for options 
on swaps should consider whether the underlying swap is cash-
settled,\843\ and that the adopting release should set forth examples 
of potential future exposure calculations.\844\
---------------------------------------------------------------------------

    \841\ See letters from FSR I, SIFMA AMG II and Vanguard.
    \842\ See letters from MFA I and Ropes & Gray.
    \843\ See letter from MFA I.
    \844\ See id.
---------------------------------------------------------------------------

e. Cost Concerns
    Some commenters emphasized the need to avoid an overbroad major 
participant definition, \845\ and highlighted concerns about being 
subject to unnecessary regulation.\846\
---------------------------------------------------------------------------

    \845\ See joint letter from Representatives Bachus and Lucas.
    \846\ See, e.g., letters from SIFMA AMG II (stating that the 
commenter's suggested changes in connection with the substantial 
position analysis would reduce burdens and costs to market 
participants, and more closely align the tests with the objectives 
they are meant to achieve) and ABC/CIEBA; see also letter from 
NFPEEU (reserving the right to dispute the cost-benefit analysis 
associated with the proposed dealer and major participant rules 
until all relevant Dodd-Frank Act releases could be analyzed as a 
whole).
---------------------------------------------------------------------------

f. Additional Issues
    One commenter suggested there be an explicit presumption against 
imposing major participant (or dealer) regulation on end-users.\847\ 
Some commenters requested that the current uncollateralized exposure 
test explicitly exclude cleared positions, net in-the-money positions, 
and fully collateralized out-of-the-money positions,\848\ and one 
commenter also supported excluding those positions from the potential 
future exposure analysis.\849\ That commenter also supported excluding 
swaps on government securities from the substantial position 
analysis.\850\
---------------------------------------------------------------------------

    \847\ See letter from CDEU.
    \848\ See letters from ICI I, SIFMA AMG II and Vanguard.
    \849\ See letter from ICI I.
    \850\ See letter from ICI I (noting size of government security 
market and Federal Reserve control over supply and demand, and 
stating that the proposed thresholds are ill-suited to address the 
``vast'' government securities market).
---------------------------------------------------------------------------

    One commenter requested confirmation that dealers and major 
participants would not be required to compute, assist with, or verify 
computations for counterparties that may be major participants, and 
also that market participants can enlist third-party services to assist 
in performing the calculations.\851\ One commenter requested 
clarification that the proposed focus on uncollateralized exposure does 
not mean that end-users themselves

[[Page 30666]]

should not demand collateral from dealers.\852\
---------------------------------------------------------------------------

    \851\ See letter from ISDA I.
    \852\ See letter from FHLB I.
---------------------------------------------------------------------------

3. Final Rules
a. Guiding Principles
    The final rules defining ``substantial position'' focus on 
identifying persons whose large swap and security-based swap positions 
pose market risks that are significant enough that it would be 
``prudent'' to regulate those persons. In developing these rules we 
have been mindful of the costs associated with regulating major 
participants, and have considered cost and benefit principles as part 
of the analysis of what level of swap and security-based swap positions 
reasonably form the lower bounds for identifying when it would be 
``prudent'' that particular entities be subject to monitoring, 
management and oversight of entities that may be systemically important 
or may significantly impact the U.S. financial system.\853\
---------------------------------------------------------------------------

    \853\ At the same time, as discussed above in the context of the 
de minimis exception to the dealer definitions, we are mindful that 
the benefits of financial regulation cannot be quantified. For 
example, while the regulation of major participants will comprise 
one component of Title VII's comprehensive regulatory framework that 
should be expected to help lessen the amount and frequency of 
financial crises, we cannot place a dollar figure on the 
contribution of major participant regulation to those benefits. In 
light of those factors, we believe that it would be ``prudent'' to 
regulate, as major participants, those persons whose swap or 
security-based swap positions are large enough to pose a material 
potential of causing significant counterparty impacts, consistent 
with the levels set forth in the final rules. The Commissions will 
further address the comparative costs and benefits associated with 
regulating major participants in the context of the substantive 
rules applicable to major participants.
---------------------------------------------------------------------------

    The final rules implementing the ``substantial position'' 
definition follow the basic approach that the Commissions proposed, 
including the combined use of current exposure and potential future 
exposure tests.\854\ While we have carefully considered the views of 
commenters who suggested alternative approaches, we have concluded that 
it is appropriate to adopt the basic approach that was proposed, as 
described below.
---------------------------------------------------------------------------

    \854\ As with the proposal, the final rules apply these tests to 
swap and security-based swap positions in a ``major'' category. See 
CFTC Regulation Sec.  1.3(jjj)(1); Exchange Act rule 3a67-3(a). The 
final rules have been modified from the proposal, however, by 
removing a reference to ``positions excluded from consideration.'' 
We have concluded that this reference is unnecessary because the 
first statutory major participant test explicitly provides that 
positions that are subject to the commercial risk hedging and the 
ERISA hedging exclusions of the first major participant test need 
not be considered for purposes of that test.
---------------------------------------------------------------------------

     Focus on default-related credit risks. The final rules 
implement tests that seek to reflect the credit risk that a person's 
swap or security-based swap positions would pose in the event of 
default. In arguing that the analysis should consider factors in 
addition to default-related risks, commenters have noted that certain 
regulations applicable to major participants address business conduct 
issues that are distinct from systemic risk issues.\855\ We nonetheless 
believe that the statutory definition of ``substantial position'' 
indicates that the analysis should focus on default-related credit 
risks, because a default-related approach is more closely linked to the 
statutory criteria that the definition focus on entities that are 
``systemically important'' or can ``significantly impact'' the U.S. 
financial system than would be an approach that focuses on the 
potential for disruptive market movements.\856\
---------------------------------------------------------------------------

    \855\ See, e.g., letter from Better Markets I.
    \856\ We also believe that the statutory definition should focus 
on all default-related credit risks associated with swap or 
security-based swap positions. We do not see a basis for excluding 
any class of risks (e.g., risks associated with swaps based on 
government securities) from the analysis.
---------------------------------------------------------------------------

     Failure of multiple entities close in time. The final 
rules that implement the ``substantial position'' definition seek to 
reflect the risks that would be posed by the default of multiple 
entities close in time. Although one commenter took the view that the 
purpose of major participant regulation is to prevent the credit 
exposure of a single person from having a systemic impact,\857\ we do 
not believe that the major participant definitions should be construed 
so narrowly. The events of recent years demonstrate that market stress 
may lead to the failure and near-failure of multiple entities with 
large financial positions over a relatively short time period. We do 
not believe that it would be prudent or well-reasoned to presume that 
recent history cannot repeat itself, and to assume that future failures 
of entities with large financial positions will be isolated events.
---------------------------------------------------------------------------

    \857\ See letter from BlackRock I.
---------------------------------------------------------------------------

     Aggregate risk. The final rules address the aggregate risk 
posed by an entity's swap or security-based swap positions, rather than 
seeking to focus on principles of concentration (such as by using a 
threshold that addresses an entity's largest exposure to an individual 
counterparty) or on converse principles of interconnection. The 
statutory ``substantial position'' definition is specifically written 
in terms of market risk concerns (i.e., ``systemically important'' and 
``can significantly impact the financial system of the United 
States''), and measures of aggregate risk appear to be best geared to 
reflect this standard.\858\
---------------------------------------------------------------------------

    \858\ Moreover, a test that focuses on the concentration of an 
entity's swap or security-based swap exposure toward one or a few 
individual parties potentially poses a tension with the view that 
interconnections of exposure among multiple parties are important to 
establishing systemic risk.
---------------------------------------------------------------------------

     Use of objective, quantitative criteria. The final rules 
provide for a ``substantial position'' analysis that is based on 
objective, quantitative criteria that would permit a market participant 
to determine which level of swap or security-based swap positions would 
cause it to be a major participant. Although one commenter has 
suggested the use of a two-step approach that uses thresholds as a safe 
harbor and that would be accompanied by a second-level 
determination,\859\ we do not believe that such an approach would be 
consistent with the statutory language or with principles of regulatory 
efficiency.\860\ Accordingly, a person whose swap or security-based 
swap positions satisfy the applicable thresholds will be a major 
participant, with no further layer of review provided.\861\
---------------------------------------------------------------------------

    \859\ See letter from BlackRock I.
    \860\ The major participant definitions specifically require 
that the term ``substantial position'' be defined ``by rule or 
regulation'' via a ``threshold.'' That language would not appear to 
anticipate the use of a multi-tier approach that accounts for 
subjective criteria.
     In this respect, the major participant definitions may be 
compared with section 113 of the Dodd-Frank Act, which authorizes 
the Financial Stability Oversight Council (``FSOC'') to provide for 
a non-bank financial company to be supervised by the Board if the 
FSOC ``determines that material financial distress at the U.S. 
nonbank financial company, or the nature, scope, size, scale, 
concentration, interconnectedness, or mix of the activities of the 
U.S. nonbank financial company, could pose a threat to the financial 
stability of the United States.'' Section 113 further provides that 
these designations will result from a vote of the FSOC based on a 
variety of factors. The ``major participant'' definition does not 
provide for this type of entity-specific determination, and we 
believe that the ``major participant'' definition more appropriately 
is implemented by objective factors that allow market participants 
to determine whether they will fall within the definition.
    \861\ In addition, the final rules provide that the 
``substantial position'' analysis that implements the first (and 
third) major participant test will be based on the ``major'' 
categories of swaps and security-based swaps. Notwithstanding 
commenter concerns that this approach will require market 
participants to analyze their swaps and security-based swaps in new 
ways and will result in additional costs, this focus on ``major'' 
categories is dictated by the plain language of the statute.
---------------------------------------------------------------------------

b. Current Uncollateralized Exposure Test
    Consistent with the proposal, the final rules implementing the 
``substantial position'' definition include a test that accounts for 
the current uncollateralized exposure posed by an entity's swap or 
security-based swap positions in a major

[[Page 30667]]

category.\862\ This provides a measure of the amount of potential risk 
that an entity would pose to its counterparties if the entity currently 
were to default.\863\
---------------------------------------------------------------------------

    \862\ CFTC Regulation Sec.  1.3(jjj)(1); Exchange Act rule 3a67-
3(b)(2). The final rules contain technical changes from the proposal 
to clarify the steps entailed by this calculation.
    \863\ See Proposing Release, 75 FR at 80188.
---------------------------------------------------------------------------

    As with the proposal, a person would apply this test by examining 
the positions it maintains with each of its counterparties in a 
particular major category of swaps or security-based swaps. For each 
counterparty, the person would determine the dollar value of the 
aggregate current exposure arising from each of its swap or security-
based swap positions with negative value in that major category by 
marking-to-market using industry standard practices, and deduct from 
that amount the aggregate value of the collateral the entity has posted 
with respect to the swap or security-based swap positions.\864\ The 
``aggregate uncollateralized outward exposure'' would be the sum of 
those uncollateralized amounts over all counterparties with which the 
person has entered into swaps or security-based swaps in that major 
category.\865\
---------------------------------------------------------------------------

    \864\ As we noted in the Proposing Release, we recognize that 
there may be operational delays between changes in exposure and the 
resulting exchanges of collateral, and in general we would not 
expect that operational delays associated with the daily exchange of 
collateral would be considered to lead to uncollateralized exposure 
for these purposes. See Proposing Release, 75 FR at 80189 n.92. 
Although we are not codifying this principle within the final rules, 
we will be mindful of the principle when enforcing those rules.
    \865\ CFTC Regulation Sec.  1.3(jjj)(2); Exchange Act rule 3a67-
3(b)(2).
---------------------------------------------------------------------------

    The final rules implementing this test largely are the same as the 
rules the Commissions proposed, but with certain modifications to 
address issues raised by commenters.
i. Measure of Exposure and Valuation of Collateral
    Consistent with the proposal, the final rules do not prescribe any 
particular methodology for measuring current exposure or for valuing 
collateral posted, but instead require the use of industry standard 
practices.\866\ In this regard we do not concur with commenter requests 
that we approve or prescribe particular methodologies, or provide a 
safe harbor for measures or valuations made in good faith.\867\ 
Instead, it is appropriate that the final rules provide market 
participants with the flexibility to use the same methodologies that 
they use in connection with their business activities. Accordingly, we 
would expect entities to value current uncollateralized exposure based 
on the amounts that would be payable if the transaction were 
terminated.
---------------------------------------------------------------------------

    \866\ CFTC Regulation Sec.  1.3(jjj)(2); Exchange Act rule 3a67-
3(b)(1). As we noted in the Proposing Release, collateral may be 
posted to a third-party custodian, directly to the counterparty, or 
in accordance with the rules of a derivatives clearing organization 
or clearing agency. See Proposing Release, 75 FR at 80189 n.94.
    \867\ See letters from BlackRock I, Better Markets I and FSR I.
---------------------------------------------------------------------------

    To the extent the measure of exposure or the valuation of 
collateral is subject to other rules or regulations, we also would 
expect those measures and valuations for purposes of the major 
participant calculations to be consistent with those other applicable 
rules.\868\ In addition, the ``substantial position'' analysis may take 
into account the posting of non-cash collateral to the extent that the 
posting of such collateral, and the valuation of that collateral, is 
consistent with industry standard practices or applicable 
regulation.\869\
---------------------------------------------------------------------------

    \868\ These principles should apply even in the case of valuing 
illiquid or bespoke positions. Market participants have the 
flexibility to use commercially reasonable approaches that are 
consistent with their financial statements, tax calculations and 
compliance with other regulations.
    \869\ For non-cash collateral to be considered for purposes of 
these calculations, the collateral must be available for the 
counterparty's use if the entity posting the collateral were to 
default. At a minimum, this would require that the counterparty 
possess a perfected security interest in that collateral. As we 
noted in the Proposing Release, while we expect that other 
regulatory requirements applicable to the valuation of swap or 
security-based swap positions and collateral would be relevant to 
certain calculations relating to major participant status, these 
rules would not necessarily be relevant for other purposes, such as 
in the context of capital and margin requirements. See Proposing 
Release, 75 FR at 80189 n.95.
---------------------------------------------------------------------------

ii. Netting
    The final rules build upon the proposal with regard to the measure 
of uncollateralized current exposure in the presence of netting 
arrangements. In particular, to address commenter concerns these 
provisions have been modified from the proposal to account for the fact 
that two counterparties may have multiple netting agreements for which 
offsets are permitted, and to extend the netting principles to any 
financial instruments that may be netted for purposes of applicable 
bankruptcy law (rather than limiting those instruments to swaps, 
security-based swaps and securities financing transactions).
    Accordingly, the final rules provide that an entity may calculate 
its exposure on a net basis by applying the terms of one or more master 
netting agreements with a counterparty. The entity may account for 
offsetting positions entered into with that particular counterparty 
involving swaps or security-based swaps as well as securities financing 
transactions (consisting of securities lending and borrowing, 
securities margin lending and repurchase and reverse repurchase 
agreements), and other financial instruments and agreements that are 
subject to netting offsets for purposes of applicable bankruptcy law, 
to the extent consistent with the offsets provided by those master 
netting agreements.\870\ These revisions should permit the current 
uncollateralized exposure test to more accurately reflect the degree of 
credit risk that an entity poses to its counterparty in the event of 
default.
---------------------------------------------------------------------------

    \870\ CFTC Regulation Sec.  1.3(jjj)(2)(iii); Exchange Act rule 
3a67-3(b)(3)(i). This provision provides for netting under the 
master netting agreement of any instruments, contracts or agreements 
(including contracts on physical commodities), that would qualify 
for netting under applicable bankruptcy law. As we noted in the 
Proposing Release, the proposed rules regarding possible offsets of 
various positions are for purposes of determining major participant 
status only. Other rules proposed by the Commissions may address the 
extent to which, if any, persons such as dealers and major 
participants may offset positions for other purposes. See Proposing 
Release, 75 FR at 80189 n.98. As proposed, Exchange Act rule 3a67-
3(b)(3)(i) referred to ``security-based swaps (in any swap 
category)''; this reference has been revised in the final rule to 
``security-based swaps (in any security-based category).''
---------------------------------------------------------------------------

    As discussed in the proposal, these netting provisions apply only 
to offsetting positions with a single counterparty.\871\ The provisions 
do not extend to the market risk offsets associated with an entity's 
positions with multiple counterparties, because such offsets would not 
directly mitigate the risks that an individual counterparty would face 
in the event of the entity's default.\872\
---------------------------------------------------------------------------

    \871\ CFTC Regulation Sec.  1.3(jjj)(2)(iii); Exchange Act rule 
3a67-3(b)(3)(ii).
    \872\ The fact that positions with third parties do not offset 
exposure to a particular counterparty was recently highlighted by a 
decision finding that the Bankruptcy Code does not permit excess 
collateral held by one creditor to offset amounts that the debtor 
owed to the creditor's affiliates. See In re Lehman Brothers Inc., 
Case No. 08-01420 (JMP) (SIPA), slip op. (Bankr. S.D.N.Y Oct. 4, 
2011).
---------------------------------------------------------------------------

iii. Allocation of Uncollateralized Exposure Following Netting
    The final rules build upon the proposal by codifying the method, 
discussed in the Proposing Release, related to the allocation of any 
uncollateralized exposure that remains following netting and the 
posting of collateral. This type of allocation can be necessary 
because, with netting, it otherwise may not be possible to directly 
attribute residual uncollateralized exposure to a particular major 
category of swap or security-based

[[Page 30668]]

swap.\873\ Some commenters have requested that the final rules codify 
this method to provide more certainty to market participants.\874\
---------------------------------------------------------------------------

    \873\ Such allocation would not be necessary, of course, to the 
extent that an entity has no current uncollateralized exposure to a 
counterparty following netting and the posting of collateral.
    \874\ See letters from SIFMA AMG II and Vanguard.
---------------------------------------------------------------------------

    Accordingly, the final rules incorporate a formula which, for 
purposes of the substantial position analysis, provides that the amount 
of net uncollateralized exposure that is attributable to a particular 
major category of swap or security-based swap would be allocated pro 
rata in a manner that compares the amount of the entity's out-of-the-
money positions in that major category to its total out-of-the-money 
positions in all categories that are subject to the netting 
arrangements with that counterparty.\875\ This approach does not 
require that any collateral be specifically earmarked to particular 
swaps or security-based swaps, and can be followed so long as 
collateral is posted based on the net exposure associated with all 
instruments subject to the applicable netting agreements with that 
particular counterparty.\876\
---------------------------------------------------------------------------

    \875\ CFTC Regulation Sec.  1.3(jjj)(2)(iii)(A); Exchange Act 
rule 3a67-3(b)(4). Under this formula, for example, if an entity's 
exposure to a particular counterparty is $120 million after 
accounting for netting and the posting of collateral, and, subject 
to netting, the entity has $40 million in out-of-the-money positions 
in security-based credit derivatives, $90 million in out-of-the-
money positions in other security-based swaps, and $120 million in 
out-of-the money positions in swaps and other instruments subject to 
the netting agreements, then $19.2 million in net uncollateralized 
exposure would be attributed to the ``security-based credit 
derivatives'' category (equal to $120 million [middot] ($40 million/
($40 million + $90 million + $120 million)), and $43.2 million in 
net uncollateralized exposure would be attributed to the ``other 
security-based swaps'' category (equal to $120 million [middot] ($90 
million/($40 million + $90 million + $120 million)).
    \876\ Although one commenter suggested that the analysis should 
further consider whether there are collateral posting requirements 
that are specific to a particular position, we believe that the test 
we are adopting is flexible enough to address that possibility. To 
the extent that the parties' collateral arrangements provide that 
collateral be earmarked to particular swap or security-based swap 
positions, an entity may calculate its potential future exposure 
with respect to that counterparty with regard to the applicable 
major category of swaps or security-based swaps, without accounting 
for netting across categories or instruments.
---------------------------------------------------------------------------

iv. Application of Current Exposure Test to Cleared, Fully 
Collateralized or Net In-the-Money Positions
    Although certain commenters have requested that the current 
uncollateralized exposure test explicitly exclude swap or security-
based swap positions that are cleared, fully collateralized or net in-
the-money,\877\ the final rules do not provide such exclusions. As we 
recognized in the Proposing Release, centrally cleared swaps and 
security-based swaps are subject to mark-to-market margining that would 
largely eliminate the uncollateralized exposure associated with a 
position, effectively resulting in the cleared position being excluded 
from the analysis.\878\ Also, by definition, fully collateralized 
positions are not associated with current uncollateralized exposure, 
and thus would be excluded from the analysis. As such, we do not 
believe that it would be necessary to explicitly exclude such positions 
from the analysis.\879\
---------------------------------------------------------------------------

    \877\ See letters from ICI I, SIFMA AMG II and Vanguard.
    \878\ See Proposing Release, 75 FR at 80189 n.92.
    \879\ Moreover, to the extent that such positions are associated 
with uncollateralized amounts, such as those that arise from 
thresholds or minimum transfer amounts pursuant to the applicable 
credit support annex, then those amounts present counterparty risk 
that should be considered as part of the major participant analysis.
---------------------------------------------------------------------------

    Similarly, we do not believe that it is necessary for the rules to 
explicitly exclude net in-the-money swap or security-based swap 
positions. If an entity does not have any current uncollateralized 
exposure to a particular counterparty--after accounting for the 
entity's netting agreement with that counterparty and the posting of 
collateral--then the entity may disregard its positions with that 
counterparty for purposes of calculating current uncollateralized 
exposure. Otherwise, it is appropriate to consider the contribution of 
all swaps or security-based swaps to current uncollateralized exposure, 
as determined by the allocation methodology discussed above.\880\
---------------------------------------------------------------------------

    \880\ Under that allocation approach, if none of the entity's 
swap or security-based swap positions in a major category with that 
counterparty are out-of-the-money, then none of the current exposure 
resulting from the netting agreement would be attributed to that 
major category.
---------------------------------------------------------------------------

c. Potential Future Exposure Analysis
    The ``substantial position'' analysis also will consider an 
entity's ``aggregate potential outward exposure,'' which would reflect 
the potential exposure of the entity's swap or security-based swap 
positions in the applicable ``major'' category of swap or security-
based swaps, subject to certain adjustments.\881\ The final rules 
implementing this test in general follow the proposed approach, but 
have been revised to address commenter concerns.
---------------------------------------------------------------------------

    \881\ CFTC Regulation Sec.  1.3(jjj)(3); Exchange Act rule 3a67-
3(c).
---------------------------------------------------------------------------

i. Purpose Underlying the Potential Future Exposure Test
    As discussed in the proposal, a potential future exposure test 
addresses the fact that a sole focus on current uncollateralized 
exposure could fail to identify risky entities until some time after 
they begin to pose the level of risk that should subject them to 
regulation as major participants.\882\ A potential future exposure test 
would allow the substantial position analysis to account for this risk 
by addressing how the value of an entity's swap or security-based swap 
positions may move against the entity over time.\883\
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    \882\ See Proposing Release, 75 FR at 80188.
    \883\ See id. at 80191.
---------------------------------------------------------------------------

    Accordingly, consistent with the proposal, the final rules 
incorporate a potential future exposure test that seeks to estimate how 
much the value of swaps or security-based swaps might change against an 
entity over the remaining life of the contract. Although some 
commenters took the view that this test should only address potential 
volatility during the period of time it would take for a non-defaulting 
party to close out positions and liquidate collateral,\884\ we believe 
that it is more appropriate for the analysis to consider the risks that 
swaps or security-based swap positions pose over the lives of those 
positions. An exclusive focus on short-term risks would fail to account 
for the possibility that an entity's large swap or security-based swap 
positions can readily produce large losses in adverse market 
circumstances, potentially leading either to large uncollateralized 
exposure (if the posting of collateral is not required), or to large 
collateral calls that may lead to the entity's default (or to calls for 
extraordinary action) and that can threaten non-defaulting parties with 
significant costs and challenges in connection with liquidating and 
replacing those positions. The analysis should give appropriate weight 
to those risks.
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    \884\ See letters from SIFMA AMG II and Vanguard.
---------------------------------------------------------------------------

ii. Risk Multipliers
    Subject to modifications addressed below, the final rules 
implementing the ``substantial position'' analysis incorporate a 
potential future exposure test based on the proposal's general approach 
of adjusting notional positions using risk multipliers.\885\ This 
approach incorporates and builds upon tests used by bank regulators for 
the purposes of setting prudential capital.\886\ Through

[[Page 30669]]

this methodology, the final rules implement an objective approach that 
readily can be replicated by market participants.
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    \885\ See CFTC Regulation Sec.  1.3(jjj)(3)(ii)(A)(1); Exchange 
Act rule 3a67-3(c)(2)(i).
    \886\ See 12 CFR part 3, app. C, section 32 (Office of the 
Comptroller of the Currency capital adequacy guidelines for banks); 
12 CFR part 325, app. D, section 32 (Federal Deposit Insurance Corp. 
capital adequacy guidelines for banks); 12 CFR part 208, app. F, 
section 32 (Federal Reserve System capital adequacy guidelines for 
banks); 12 CFR part 225, app. G, section 32 (Federal Reserve System 
capital adequacy guidelines for bank holding companies).
---------------------------------------------------------------------------

    Although some commenters have suggested the use of value-at-risk 
measures or internal models to evaluate potential future exposure,\887\ 
we do not believe that such approaches would be well tailored to be 
implemented by a range of market participants, or would lead to 
comparable results across market participants with identical swap or 
security-based swap portfolios.
---------------------------------------------------------------------------

    \887\ See letters from Riverside Risk Advisors and Better 
Markets I.
---------------------------------------------------------------------------

    In adopting this approach, we are mindful of the significance of 
commenter concerns about the adequacy of the tables that set forth the 
risk multipliers that would be applied to notional positions. These 
comments address, among other issues: discontinuities in the tables; 
the failure to account for whether, and how much, a swap or security-
based swap is in-the-money or out-of-the money; the failure of the 
multipliers applicable to interest rate swaps to distinguish between 
counterparties who pay floating rates and counterparties who pay fixed 
rates; the failure of the multipliers in the credit category to account 
for the volatility of the underlying instrument or the duration of the 
swap or security-based swap; the failure of the multipliers for equity 
and commodity swaps to distinguish between high-volatility and low-
volatility stocks and commodities; the adequacy of how the test 
addresses diversification and correlation; the fact that the approach 
does not provide for delta weighting of options positions; and the fact 
that the factors do not distinguish between index and single-name 
credit default swaps.\888\ While we acknowledge that it may be possible 
to develop revised risk multipliers that are more finely tuned to 
reflect relevant risk factors, at this time we believe that it would be 
most appropriate to implement the ``substantial position'' analysis by 
building upon an existing regulatory approach that is comparatively 
simpler to implement and leads to reproducible results, rather than 
seeking to develop a brand new approach.\889\
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    \888\ See, e.g., letters from Riverside Risk Advisors and MFA I.
    \889\ We also are not following a commenter suggestion to 
incorporate the ``standardized method'' prescribed as part of the 
``Basel II'' bank capital methodology. See letter from ISDA I. The 
standardized method relies on counterparty credit ratings provided 
by external credit rating agencies for purposes of calculating risk-
weighted capital measurements. See ``International Convergence of 
Capital Measurement and Capital Standards, A Revised Framework, 
Comprehensive Version,'' the Basel Committee on Banking Supervision, 
June 2006. Incorporating this reliance on credit ratings provided by 
external credit rating agencies into these final rules would be 
inconsistent with Section 939A of the Dodd-Frank Act, which required 
all Federal agencies to review and modify existing regulations ``to 
remove any reference to or requirement of reliance on credit ratings 
and to substitute in such regulations such standard of credit-
worthiness as each respective agency shall determine as appropriate 
for such regulations.''
---------------------------------------------------------------------------

    The final rules implementing the ``major security-based swap 
participant'' definition, however, modify the proposed risk multipliers 
in response to commenter concerns about how the ``major'' categories of 
security-based swaps should be applied to the risk multiplier 
categories. In particular, the final risk multiplier category for 
security-based swaps in the ``equity and other'' category encompasses 
all security-based swaps that are not credit derivatives, and the final 
rules eliminate the proposed category for ``other'' types of security-
based swaps.\890\
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    \890\ See Exchange Act rule 3a67-3(c)(2)(i). Aside from making 
the risk multipliers consistent with the ``major'' categories of 
security-based swaps, this change also should allow total return 
swaps on debt to be subject to the same risk multipliers as total 
return swaps on equity, rather than causing the debt swaps to be 
subject to higher multipliers (which may not accurately reflect the 
comparative risks of those instruments).
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iii. Potential Future Exposure Measures for Certain Lower-Risk 
Positions
    Consistent with the proposal, the potential future exposure 
calculation will exclude purchases of options and other positions for 
which a person has prepaid or otherwise satisfied its payment 
obligations.\891\ Also, in response to commenter concerns, the final 
rules expand on the proposal with regard to capping the potential 
future exposure associated with certain lower-risk swap and security-
based swap positions. The final rules particularly cap--at the net 
present value of the unpaid premiums--the potential future exposure 
associated with positions by which a person buys credit protection 
using a credit default swap, and positions by which a person purchases 
an option for which the person retains additional payment obligations 
under the position.\892\ This reflects the reduced risk associated with 
such positions. The final rules do not prescribe a particular discount 
rate for purposes of this analysis, and market participants instead 
should use a commercially appropriate discount rate.
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    \891\ See CFTC Regulation Sec.  1.3(jjj)(3)(ii)(A)(3)(ii); 
Exchange Act rule 3a67-3(c)(2)(i)(C).
    \892\ See CFTC Regulation Sec.  1.3(jjj)(3)(ii)(A)(4); Exchange 
Act rule 3a67-3(c)(2)(i)(D). The proposed rules would have applied 
this net present value caps only to the purchase of credit 
protection. The final rules expand this provision by also capping 
the potential future exposure associated with the purchases of 
options in which an entity retains payment obligations, to reflect 
the reduced risk associated with those positions.
---------------------------------------------------------------------------

    In addition, to better align the results of the potential future 
exposure analysis with the risks that a person presents, the final 
rules have been modified from the proposal to also exclude swap or 
security-based swap positions for which, pursuant to regulatory 
requirement, a person has placed in reserve an amount of cash or 
Treasury securities that is sufficient to pay the person's maximum 
possible liability under the position, when the person is prohibited 
from using that cash or those securities without also liquidating the 
swap or security-based swap position.\893\
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    \893\ CFTC Regulation Sec.  1.3(jjj)(3)(ii)(A)(3)(iii); Exchange 
Act rule 3a67-3(c)(2)(i)(C)(3). This exclusion of such positions 
from the major participant analysis may apply, for example, to 
certain swap or security-based swap positions of insurers where 
applicable law requires an amount equal to the maximum possible 
exposure of the insurer be segregated.
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iv. Adjustments for Netting
    Consistent with the proposal, and with the bank regulator standards 
that form the basis for these potential future exposure measures, the 
final rules provide that an entity may reduce the measure of its 
potential future exposure in a major category by up to 60 percent to 
reflect the risk mitigation effects of master netting agreements. We 
believe that this approach appropriately reflects the risk mitigating 
attributes of netting on potential future exposure. Moreover, in light 
of commenter requests for clarification of how these netting provisions 
would be applied,\894\ the final rules have been revised from the 
proposal to provide that the risk reduction associated with netting 
should be estimated using the same pro rata allocation methodology that 
will be used to measure current exposure.\895\
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    \894\ See letter from SIFMA AMG II.
    \895\ Consistent with the proposal, the effects of netting are 
to be estimated using the formula: P Net = 0.4 x P Gross + 0.6 x NGR 
x P Gross. Under that equation, P Net is the potential exposure 
adjusted for bilateral netting; P Gross is that potential outward 
exposure without adjustment for bilateral netting; and NGR is the 
net to gross ratio. The final rule has been revised from the 
proposal to clarify that the net to gross ratio equals the current 
exposure associated with the major category as calculated using the 
pro rata methodology discussed above, divided by what the measure of 
current exposure in connection with those out-of-the-money positions 
would be in the absence of that methodology.
     Accordingly, for the example set forth in note 875, supra, the 
NGR for ``security-based credit derivatives'' and ``other security-
based swaps'' both would equal 0.48 (equal to $19.2 million net 
exposure divided by $40 million in out-of-the-money positions in the 
case of ``security-based credit derivatives,'' or $43.2 million net 
exposure divided by $90 million in out-of-the-money positions in the 
case of ``other security-based swaps''). If an entity has no current 
exposure to a counterparty following the application of netting 
arrangements and collateralization, the NGR for those positions 
would equal zero, and the potential exposure would equal 40 percent 
of what it would equal otherwise.

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[[Page 30670]]

v. Adjustments for Cleared and Margined Positions
    The final rules also provide for the measure of potential future 
exposure to be adjusted in the case of swap and security-based swap 
positions that are centrally cleared or that are subject to daily mark-
to-market margining. This is consistent with the purpose of the 
potential future exposure test, which is to account for the extent to 
which the current outward exposure of positions (though possibly low or 
even zero at the time of measurement) might grow to levels that can 
lead to high counterparty risk to counterparties or to the markets 
generally. The practice of the periodic exchange of mark-to-market 
margin between counterparties helps to mitigate the potential for large 
future increases in current exposure.
    Consistent with the proposal, the final rules reflect this ability 
to mitigate risk by providing that the potential future exposure 
associated with positions that are subject to daily mark-to-market 
margining will equal 0.2 times the amount that otherwise would be 
calculated. However, in response to commenters' opinions about the 
risk-mitigating effects of central clearing, and the additional level 
of rigor that clearing agencies may have with regards to the process 
and procedures for collecting daily margin, the final rules further 
provide that the potential future exposure associated with positions 
that are subject to central clearing will equal 0.1 (rather than the 
proposed 0.2) times the potential future exposure that would otherwise 
be calculated.\896\
---------------------------------------------------------------------------

    \896\ See CFTC Regulation Sec.  1.3(jjj)(3)(iii)(A); Exchange 
Act rule 3a67-3(c)(3)(i). The final rules further have been revised 
to clarify that the 0.1 factor applies to positions cleared by a 
registered clearing agency or by a clearing agency that has been 
exempted from registration.
---------------------------------------------------------------------------

    Although some commenters supported the complete exclusion of 
cleared positions from the potential future exposure analysis,\897\ and 
we are mindful of the risk mitigating attributes of central clearing, 
we also recognize that central clearing cannot reasonably be expected 
to entirely eliminate counterparty risk.\898\ We conclude, however, 
that the use of a 0.1 factor (in lieu of the proposed 0.2) would be 
appropriate for cleared positions, reflecting the strong risk 
mitigation features associated with central clearing, particularly the 
procedures regarding the collection of daily margin and the use of 
counterparty risk limits, while recognizing the presence of some 
remaining counterparty risk.
---------------------------------------------------------------------------

    \897\ See, e.g., letters from MFA I and SIFMA AMG II.
    \898\ Central clearing helps to mitigate counterparty credit 
risk by improving risk management and, among other things, 
mutualizing the risk of counterparty failure. If multiple members of 
a central counterparty fail beyond the level to which such risk is 
managed, however, the central counterparty would also be at risk of 
failure. Cf. Basel Committee on Banking Supervision, Consultative 
Document, ``Capitalisation of bank exposures to central 
counterparties,'' Nov. 25, 2011 (available at: https://www.bis.org/publ/bcbs206.pdf) (proposing that the capital charge for trade 
exposures to a qualifying central counterparty should carry a low 
risk weight, reflecting the relatively low risk of default of the 
qualifying central counterparty). In addition, as we discussed in 
the Proposing Release, see 75 FR at 80192 n.115, for example, 
central counterparties that clear credit default swaps do not 
necessarily become the counterparties of their members' customers 
(although even absent direct privity those central counterparties 
benefit customers by providing for protection of collateral they 
post as margin, and by providing procedures for the portability of 
customer positions in the event of a member's default). As a result, 
central clearing may not eliminate the counterparty risk that the 
customer poses to the member, although required mark-to-market 
margining should help control that risk, and central clearing would 
be expected to reduce the likelihood that an entity's default would 
lead to broader market impacts.
---------------------------------------------------------------------------

    Moreover, although some commenters opposed any deduction from the 
measure of potential future exposure for uncleared positions that are 
margined on a daily basis,\899\ we believe that the risk-mitigating 
attributes of daily margining warrant an adjustment given that the goal 
of the potential future exposure test is to account for price movements 
over the remaining life of the contract.\900\ The use of a 0.2 factor 
also reflects our expectation that the risk mitigation associated with 
uncleared but margined positions would be less than the risk mitigation 
associated with cleared positions.
---------------------------------------------------------------------------

    \899\ See letter from Better Markets I; see also letter from 
AFR.
    \900\ We do not believe that it is appropriate to have this type 
of discount when mark-to-market margining is done less than daily, 
however.
---------------------------------------------------------------------------

    While higher or lower alternatives to the 0.1 and 0.2 factors may 
also be reasonable for positions that are cleared or margined on a 
daily basis, we believe that the factors of the final rules reasonably 
reflects the risk mitigating (but not risk eliminating) features of 
those practices. The final rules also retain and clarify provisions 
addressing when daily mark-to-market margining occurs for purposes of 
this discount.\901\
---------------------------------------------------------------------------

    \901\ We recognize that at times, market participants whose 
agreements provide for the daily exchange of variation margin in 
connection with swaps or security-based swaps in practice may not 
exchange collateral daily, if the amounts at issue are relatively 
small (such as through the use of collateral thresholds and minimum 
transfer amounts). We do not believe that such practices would be 
inconsistent with providing a discount for daily margining 
practices. The proposed rules sought to accommodate those practices 
by providing that positions would be considered to be subject to 
daily mark-to-market margining for purposes of the 
``uncollateralized outward exposure'' plus ``potential outward 
exposure'' analysis, so long as the total of such thresholds, and 
the total of such minimum transfer amounts above $1 million are 
deemed to be ``uncollateralized outward exposure'' for those 
purposes.
    In light of commenter concerns, which indicated that the 
proposal was not fully clear about the mechanics and purpose of this 
approach, the relevant rule language has been revised to clarify 
that this attribution of thresholds and minimum transfer amounts is 
solely for the purpose of determining whether certain positions are 
subject to daily mark-to-market margining for purposes of the 
analysis. In addition, the final rules have been revised from the 
proposal to provide that the attribution of thresholds as 
``uncollateralized outward exposure'' for these purposes will be 
reduced by initial margin posted, up to the amount of the threshold. 
See CFTC Regulation Sec.  1.3(jjj)(iii)(B); Exchange Act rule 3a67-
3(c)(3)(ii).
---------------------------------------------------------------------------

vi. Application of ``Effective Notional'' Amounts
    Consistent with the proposal (as well as the rules implementing the 
de minimis exception to the dealer definitions), the potential future 
exposure test is based on the ``effective notional'' amount of the swap 
or security-based swap when the stated notional is leveraged or 
enhanced by the structure of the swap or security-based swap.\902\
---------------------------------------------------------------------------

    \902\ As discussed above, this may occur, for example, if the 
exchange of payments associated with an equity swap is based on a 
multiple of the return associated with the underlying equity. As is 
the case for measuring current exposure, the final rules do not 
prescribe any particular methodology for calculating the notional 
amount or effective notional amount used in the calculation of 
potential future exposure, but instead contemplate the use of 
industry standard practices.
---------------------------------------------------------------------------

    Moreover, as discussed in the Proposing Release,\903\ in the case 
of positions that represent the sale of an option on a swap or 
security-based swap (other than the sale of an option permitting the 
person exercising the option to purchase a credit default swap), we 
would view the effective notional amount of the option as being equal 
to the effective notional amount of the underlying swap or security-
based swap, and in general we would view the duration used for purposes 
of the formula as being equal to the sum of the duration of the option 
and the duration of the underlying swap or security-based swap.\904\
---------------------------------------------------------------------------

    \903\ See Proposing Release, 75 FR 80192 n.110.
    \904\ The effective notional amount of the underlying instrument 
is used for these purposes because that amount fairly reflects the 
basis for measuring the potential counterparty risk associated with 
the instrument. The sum of the duration of the option and the 
underlying instrument is used for these purposes because that sum 
reflects the length of time of the potential counterparty risk 
associated with the instrument.
    At the same time, we agree with a commenter's view that if the 
underlying swap or security-based swap is cash settled, the 
calculation of duration will only include the duration of the 
option, and not the duration of the swap, because counterparty 
exposure would exist only until the option expiration date. See 
letter from MFA I.

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[[Page 30671]]

vii. Treatment of Initial Margin or Overcollateralization
    The final rules retain the proposed approach of not modifying the 
measure of potential future exposure to reflect collateral that a 
person has posted to its counterparty in excess of current exposure. 
Although we recognize that the posting of excess collateral may 
mitigate the future credit risk that the potential future exposure 
measure is intended to estimate, that mitigating effect is not certain, 
and any such mitigation may not reflect the full value of the excess 
collateral. Moreover, while we believe that the measure of potential 
future exposure associated with swap or security-based swap positions 
reasonably estimates the credit risk that may be posed by those 
positions for purposes of the substantial position analysis, we also 
recognize that particular positions may prove to pose a far higher 
amount of credit risk.\905\ Given how the credit risk associated with a 
swap or security-based swap position can far exceed the associated 
measure of potential future exposure, we do not believe that it would 
be appropriate to offset that measure to account for 
overcollateralization.\906\
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    \905\ For example, if a person writes a CDS that provides $10 
billion in protection on a reference entity, with the CDS being 
subject to daily mark-to-market margining, then for purposes of the 
substantial position analysis that CDS would be associated with a 
potential future exposure measure of no more than $200 million 
(reflecting the 0.1 conversion factor and the additional 0.2 
multiplier for margined positions), even before accounting for 
netting. Yet if the reference entity were to default, the writer of 
the CDS could pose up to $10 billion in credit risk to its 
counterparty.
    \906\ However, as discussed above, see note 901, supra, initial 
margin may be considered when determining if a collateral threshold 
is to be attributed to current uncollateralized exposure for 
purposes of determining whether certain positions are subject to 
daily mark-to-market margining for purposes of the substantial 
position analysis.
---------------------------------------------------------------------------

d. Thresholds
    The final rules retain the proposed thresholds for the amount of 
current uncollateralized exposure and potential future exposure that 
will cause an entity to be deemed to be a major participant. 
Accordingly, for a person to have a ``substantial position'' in a major 
category of swaps, it would be necessary for that person to have a 
daily average current uncollateralized exposure of at least $1 billion 
(or $3 billion for the rate swap category), or a daily average current 
uncollateralized exposure plus potential future exposure of $2 billion 
(or $6 billion for the rate swap category).\907\ To have a 
``substantial position'' in a major category of security-based swaps, 
it would be necessary for the person to have a daily average current 
uncollateralized exposure of at least $1 billion, or a daily average 
current uncollateralized exposure plus potential future exposure of at 
least $2 billion.\908\
---------------------------------------------------------------------------

    \907\ CFTC Regulation Sec.  1.3(jjj)(1).
    \908\ Exchange Act rule 3a67-3(a).
---------------------------------------------------------------------------

    As the Proposing Release noted, the proposed thresholds sought to 
reflect: (i) The financial system's ability to absorb losses of a 
particular size; (ii) the recognition that it would not be appropriate 
for the substantial position test to encompass entities only after they 
pose significant risks to the market through their swap or security-
based swap activity; and (iii) the need to account for the possibility 
that multiple market participants may fail close in time.\909\ While 
some commenters took the position that the proposed thresholds were 
inappropriately low, those commenters did not present empirical data or 
analysis in support of that view. Moreover, the Commissions do not 
concur with the suggestion \910\ that the major participant definitions 
can reasonably be read to require that we defer this rulemaking until 
we have gathered additional data. Instead, the definitions direct us to 
set a standard that is ``prudent,'' which is what we have sought to do.
---------------------------------------------------------------------------

    \909\ As discussed above, we do not believe it would be prudent 
to presume that entity failures will be separated in time during 
periods of financial stress.
    \910\ See letters from BlackRock I and CCMR I.
---------------------------------------------------------------------------

    Some commenters who supported an increase in the proposed 
thresholds attempted to support their positions via analogy to past 
events, with the most significant of these being an analogy to AIG 
Financial Products (``AIG FP'').\911\ The analogy to AIG FP \912\ 
actually argues against an increase in these thresholds, however, 
particularly given that the credit derivative portfolio that 
significantly contributed to the liquidity problems that AIG FP faced 
amounted to $72 billion in notional amount.\913\ Under the final rules, 
in the presence of central clearing or daily marking to market it would 
take a credit derivative portfolio in excess of that amount to trigger 
the potential future exposure threshold under the ``substantial 
position'' analysis.\914\ This indicates that the thresholds are not 
inappropriately low, particularly given our view that the major 
participant definition is intended to encompass entities before their 
swap or security-based swap positions pose significant market 
threats.\915\ Conversely, while

[[Page 30672]]

additional data and analysis may warrant a reduction of these 
thresholds in the future, commenters who supported a reduction in those 
thresholds have not persuaded us that the proposed thresholds should be 
lowered.
---------------------------------------------------------------------------

    \911\ See letter from ABC/CIEBA. One commenter's analogy to 
Enron also is unpersuasive. See letter from BG LNG I. In particular, 
the $18.7 billion in Enron derivatives exposure cited by that 
commenter does not account for collateral posted in connection with 
those positions. Also, the market impact of Enron's bankruptcy was 
substantially mitigated by the sale of Enron's derivatives trading 
arm to a third party.
    Moreover, although one commenter generally alluded to corporate 
financial losses in the derivatives markets that exceeded the 
proposed $1 billion and $2 billion thresholds, see letter from NCGA/
NGSA II, the relevant question does not focus on losses that market 
participants have incurred, but instead focuses on what degree of 
credit risk to counterparties in the swap and security-based swap 
markets presents such a potential to cause significant market impact 
that it would be prudent to regulate persons who pose that degree of 
credit risk in connection with their swap or security-based swap 
positions.
    \912\ Our discussion of how the major participant analysis may 
apply to an entity that has a portfolio of a size equivalent to that 
of AIG FP should not be read to imply that a person may engage in 
swap and security-based swap activities akin to those of AIG FP 
without registering as a swap dealer or security-based swap dealer.
    \913\ See, e.g., Congressional Oversight Panel, The AIG Rescue, 
Its Impact on Markets, and the Government's Exit Strategy 22-24 
(2010) (discussing how the risk in AIG's CDS business largely was 
the result of a ``multi-sector'' CDO book that amounted to $72 
billion notional as of September 2008, and how the losses to AIG 
were driven by 125 of the roughly 44,000 contracts entered into by 
AIG FP).
    \914\ For cleared security-based credit default swaps (in which 
we assume daily margining requirements result in no current 
uncollateralized exposure) achieving $2 billion of potential future 
exposure would require writing $200 billion notional of credit 
default swap protection (reflecting the 0.10 multiplier in the risk 
adjustment tables, and the additional 0.10 multiplier for positions 
that are cleared). Similarly, it would take a $100 billion notional 
portfolio of uncleared but marked-to-market security-based credit 
default swaps to meet that same threshold (reflecting the 0.20 
multiplier for positions that are subject to daily mark-to-market 
margining). The total might be even higher if such instruments were 
subject to counterparty netting agreements.
    Even in the absence of clearing or daily mark-to-market 
margining, it would take a minimum $20 billion notional portfolio of 
written protection on credit (reflecting the 0.10 multiplier in the 
risk adjustment tables) to meet the $2 billion potential future 
exposure threshold. Accounting for netting (which can reduce 
potential future exposure measures by up to 60 percent) could 
materially increase that required amount.
    \915\ The case of Long-Term Capital Management (``LTCM'') also 
is instructive in connection with the current exposure thresholds of 
the major participant analysis. Had LTCM failed, its top 17 
counterparties would have suffered estimated total losses of between 
$3 and $5 billion. See President's Working Group on Financial 
Markets, Hedge Funds, Leverage, and the Lessons of Long-Term Capital 
Management (April 1999) at 17 (https://www.treasury.gov/resource-center/fin-mkts/Documents/hedgfund.pdf). The government acted in 
connection with LTCM because the rushed close-out of LTCM's 
positions would have affected other market participants, and the 
spread of losses would have led to market uncertainty, likely 
causing a number of credit and interest rate markets to experience 
extreme price moves and possibly not function for a period of time. 
See Statement by William J. McDonough, President Federal Reserve 
Bank of New York before the Committee on Banking and Financial 
Services U.S. House of Representatives (October 1, 1998) (https://www.newyorkfed.org/newsevents/speeches_archive/1998/mcd981001.html).
---------------------------------------------------------------------------

e. Additional Issues
    The final rules applying the ``substantial position'' analysis and 
the major participant definitions generally apply to all types of swaps 
or security-based swaps that a person maintains. Although one commenter 
suggested that swaps on government securities should be excluded from 
the analysis, the rules will not provide such an exclusion. To the 
extent that a person presents credit risk as a result of swaps 
referencing government securities, there is no basis for disregarding 
that risk when determining whether the person is a major participant.
    In addition, in light of one commenter's concern,\916\ the 
Commissions believe that it is important to emphasize that these rules 
should not be interpreted to deter end-users from requesting margin 
from dealers or major participants who are their counterparties to 
swaps or security-based swaps.
---------------------------------------------------------------------------

    \916\ See letter from FHLB I.
---------------------------------------------------------------------------

    Also, in light of a point raised by another commenter,\917\ the 
Commissions note that these rules implementing the major participant 
definitions do not place any independent calculation or other 
obligations upon counterparties to potential major participants, and 
that the rules do not preclude a potential major participant from 
seeking the assistance of a third party to perform the relevant 
calculation.
---------------------------------------------------------------------------

    \917\ See letter from ISDA I.
---------------------------------------------------------------------------

C. ``Hedging or Mitigating Commercial Risk''

1. Proposed Approach
a. General Availability of the Proposed Exclusion
    The first test of the major participant definitions excludes 
positions held for ``hedging or mitigating commercial risk'' from the 
substantial position analysis.\918\ In the Proposing Release, we 
preliminarily concluded that positions that hedge or mitigate a 
person's commercial risk may qualify for this exclusion regardless of 
whether the entity is financial or non-financial in nature.\919\ That 
conclusion in part was prompted by the fact that the statutory major 
participant definitions do not explicitly make the exclusion 
unavailable to financial entities; in contrast to the Title VII 
exceptions from mandatory clearing requirements in connection with 
hedging commercial risk,\920\ which explicitly are unavailable to 
financial entities.\921\ The conclusion also was prompted by the 
presence of the third major participant test--which specifically 
applies the substantial position analysis to certain non-bank financial 
entities but (unlike the first test) does not exclude commercial risk 
hedging positions from the analysis.\922\
---------------------------------------------------------------------------

    \918\ See CEA section 1a(33)(A)(i)(I); Exchange Act section 
3(a)(67)(A)(i)(I).
    \919\ See Proposing Release, 75 FR at 80194.
    \920\ See CEA section 2(h)(7)(A); Exchange Act section 
3C(g)(1)(B).
    \921\ As we discussed in the Proposing Release, had the Dodd-
Frank Act intended the phrase ``hedge or mitigate commercial risk'' 
to apply only to activities of, or positions held by, non-financial 
entities, it would not have been necessary for the mandatory 
clearing exceptions to include additional provisions generally 
restricting the availability of the exceptions to non-financial 
entities. See Proposing Release, 75 FR at 80194.
    \922\ As we discussed in the Proposing Release, the third 
statutory major participant test would be redundant if the hedging 
exclusion in the first major participant test were entirely 
unavailable to financial entities. See Proposing Release, 75 FR at 
80194 n.125.
---------------------------------------------------------------------------

    In the Proposing Release, we also preliminarily concluded that the 
question of whether an activity is commercial in nature should not be 
determined solely by a person's organizational status as a for-profit, 
non-profit or governmental entity, but instead should depend on whether 
the underlying activity is commercial in nature.\923\
---------------------------------------------------------------------------

    \923\ See Proposing Release, 75 FR at 80194.
---------------------------------------------------------------------------

    The proposal did not preclude the exclusion from being available in 
connection with hedges of a person's ``financial'' or ``balance sheet'' 
risks. In addition, the proposal solicited comment as to whether the 
exclusion should extend to activities in which a person hedges an 
affiliate's risk.
b. Proposed Definition Under the CEA Exception
    The proposed interpretation of ``hedging or mitigating commercial 
risk'' for purposes of the CEA's definition of ``major swap 
participant'' premised the exclusion on the principle that swaps 
necessary to the conduct or management of a person's commercial 
activities should not be included in the calculation of the entity's 
substantial position.\924\
---------------------------------------------------------------------------

    \924\ The scope of the proposed exclusion is based on our 
understanding that when a swap or security-based swap is used to 
hedge a person's commercial activities, the gains or losses 
associated with the swap or security-based swap itself will 
generally be offset by losses or gains in the person's commercial 
activities, and hence the risks posed by the swap or security-based 
swap to counterparties or the industry will generally be mitigated.
---------------------------------------------------------------------------

    The CFTC noted first that the phrase ``hedging or mitigating 
commercial risk'' as used with respect to the major swap participant 
definition is virtually identical to Dodd-Frank provisions granting an 
exception from the mandatory clearing requirement to non-financial 
entities that are using swaps to hedge or mitigate commercial 
risk.\925\ Also noted was that although only non-financial entities 
that use swaps or security-based swaps to hedge or mitigate commercial 
risk generally may qualify for the clearing exemption, no such 
statutory restriction applies with respect to the exclusion for hedging 
positions in the first test of a major participant. We therefore 
concluded that positions established to hedge or mitigate commercial 
risk may qualify for the exclusion, regardless of the nature of the 
entity--i.e., whether or not the entity is financial (including a bank) 
or non-financial.\926\
---------------------------------------------------------------------------

    \925\ See CEA section 2(h)(7)(A); Exchange Act section 
3C(g)(1)(B) (exception from mandatory clearing requirements when one 
or more counterparties are not ``financial entities'' and are using 
swaps or security-based swaps to ``hedge or mitigate commercial 
risk'').
    \926\ The presence of the third major participant test suggests 
that financial entities generally may not be precluded from taking 
advantage of the hedging exclusion in the first test. The third 
test, which does not account for hedging, specifically applies to 
non-bank financial entities that are highly leveraged and have a 
substantial position in a major category of swaps or security-based 
swaps. That test would be redundant if the hedging exclusion in the 
first major participant test were entirely unavailable to financial 
entities.
---------------------------------------------------------------------------

    The CFTC preliminarily believed that whether a position hedges or 
mitigates commercial risk should be determined by the facts and 
circumstances at the time the swap is entered into, and should take 
into account the entity's overall hedging and risk mitigation 
strategies. However, the swap could not be held for a purpose that is 
in the nature of speculation, investing or trading. We anticipated that 
a person's overall hedging and risk management strategies would help 
inform whether or not a particular position is properly considered to 
hedge or mitigate commercial risk. Further, the exclusion under the 
Proposing Release included swaps hedging or mitigating any of a 
person's business risks, regardless of the

[[Page 30673]]

swap's status under accounting guidelines or the bona fide hedging 
exemption.
c. Proposed Definition Under the Exchange Act Exception
    For purposes of the Exchange Act's ``major security-based swap 
participant'' definition, the proposed rule defining ``hedging or 
mitigating commercial risk'' would require that a security-based swap 
position be ``economically appropriate'' to the reduction of risks in 
the conduct and management of a commercial enterprise, where those 
risks arise from the potential change in the value of assets, 
liabilities and services connected with the ordinary course of business 
of the enterprise.\927\ The Proposing Release stated that the SEC 
preliminarily planned to interpret the concept of ``economically 
appropriate'' based on whether a reasonably prudent person would 
consider the security-based swap to be appropriate for managing the 
identified commercial risk. It further stated that the SEC also 
preliminarily believed that for a security-based swap to be deemed 
``economically appropriate'' in this context, it should not introduce 
any new material quantum of risks (i.e., it could not reflect over-
hedging that could reasonably have a speculative effect) and it should 
not introduce any basis risk or other new types of risk (other than the 
counterparty risk that is attendant to all security-based swaps) more 
than reasonably necessary to manage the identified risk.\928\
---------------------------------------------------------------------------

    \927\ See proposed Exchange Act rule 3a67-4(a).
    \928\ See Proposing Release, 75 FR at 80195 n.129.
---------------------------------------------------------------------------

    The proposed rules further provided that the security-based swap 
position could not be held for a purpose that is in the nature of 
speculation or trading--a limitation that would make the exclusion 
unavailable to security-based swap positions that are held 
intentionally for the short term and/or with the intent of benefiting 
from actual or expected short-term price movements or to lock in 
arbitrage profits, including security-based swap positions that hedge 
other positions that themselves are held for the purpose of speculation 
or trading.\929\ The proposal also provided that a security-based swap 
position could not be held to hedge or mitigate the risk of another 
security-based swap position or swap position unless that other 
position itself is held for the purpose of hedging or mitigating 
commercial risk.\930\ Finally, the proposal would have conditioned the 
entity's ability to exclude these security-based swap positions on the 
entity engaging in certain specified activities related to documenting 
the underlying risks and assessing the effectiveness of the hedge in 
connection with the security-based swap positions.\931\
---------------------------------------------------------------------------

    \929\ See proposed Exchange Act rule 3a67-4(b)(1), and Proposing 
Release, 75 FR at 80195 n.131.
    \930\ See proposed Exchange Act rule 3a67-4(b)(2).
    \931\ See proposed Exchange Act rule 3a67-4(c).
---------------------------------------------------------------------------

2. Commenters' Views
a. In General
    Several commenters generally supported the broad concepts 
underlying the proposed rules for identifying hedges of commercial 
risk, and particularly supported the proposed use of an ``economically 
appropriate'' standard instead of the ``highly effective'' standard 
that is used to identify hedges for accounting purposes.\932\ On the 
other hand, one commenter stated that the definition should incorporate 
all manner of risks associated with commercial operations, including 
interest rate and currency risks, risks from incidental activities to 
commercial activities and risks from financial commodities.\933\ One 
commenter further stated that the definition should encompass positions 
that facilitate asset optimization and dynamic hedging.\934\
---------------------------------------------------------------------------

    \932\ See letters from ACLI, Barnard, CDEU, COPE I, EEI/EPSA, 
FSR I, ISDA I, Kraft, MetLife, NAIC, Philip Morris International 
Inc. (``Philip Morris'') and Utility Group.
    \933\ See letter from CDEU.
    \934\ See letter from Peabody.
---------------------------------------------------------------------------

    Commenters further stated that the exception should include any 
position taken as part of a bona fide risk mitigation strategy,\935\ 
and that Congress included ``mitigation'' in the exception for the 
purpose of covering risk reduction strategies that may not clearly be 
hedges but mitigate risk.\936\ Some commenters also criticized the 
Proposing Release's position equating the terms ``hedging'' and 
``mitigating.'' \937\ One commenter also expressed concern that 
entities would find it difficult to analyze their positions with 
respect to the Proposing Release's statement, in the context of the 
Exchange Act definition, that ``economically appropriate'' security-
based swaps would not add a new quantum of risk.\938\
---------------------------------------------------------------------------

    \935\ See letter from ISDA I.
    \936\ See letter from CDEU.
    \937\ See letters from APG, CDEU and ISDA I.
    \938\ See letter from SIFMA AMG II.
---------------------------------------------------------------------------

    Conversely, some commenters suggested that the proposed 
interpretation was too broad,\939\ and that a broad interpretation 
could allow evasion,\940\ or permit corporate end users to accumulate 
very large positions without becoming major swap participants.\941\ One 
commenter stated that to include ``financial risks'' within the 
exclusion's scope would be improper because a ``commercial risk'' is 
one that is inherent in a person's commercial activities, while 
interest rate and currency risks arise from choices about how a person 
structures and finances its operations.\942\ Some commenters stated 
that the rule should not include hedging of financial risks because 
Congress deleted the reference in an earlier version of the Dodd-Frank 
Act to hedging of ``balance sheet risk.'' \943\ One commenter urged 
that we consider using accounting hedge treatment or the bona fide 
hedging exemption as guideposts for determining the availability of the 
exclusion.\944\ Commenters also raised concerns about differences 
between the proposed approaches under the CEA and Exchange Act 
definitions of the terms.\945\
---------------------------------------------------------------------------

    \939\ See letters from AFR and AFSCME. The CFTC also received 
submissions of a substantially identical letter from approximately 
193 individuals and small businesses urging the CFTC to define 
commercial risk narrowly to include only risks arising from physical 
commodity price fluctuations, and not financial risks, and to 
construe the exception for captive finance companies narrowly. See, 
e.g., letter from Needham Oil & Air, LLC. In addition, the CFTC 
received submissions from approximately 535 individuals of a 
different letter, which also urged the CFTC to define commercial 
risk narrowly. See, e.g., letter from Christie Hakim.
    \940\ See letters from Sen. Carl Levin (``Senator Levin''), 
Commodity Markets Oversight Coalition (``CMOC'') and Greenberger and 
meeting with MFA on February 14, 2011.
    \941\ See meeting with SIFMA AMG on February 4, 2011.
    \942\ See meeting with AFR and Better Markets on March 17, 2011.
    \943\ See letters from AFR and CMOC, and meeting with Duffie on 
February 2, 2011.
    \944\ See letter from Senator Levin.
    \945\ See letters from Senator Levin, NAIC and SIFMA AMG II.
---------------------------------------------------------------------------

    One commenter suggested that the definition should be expanded to 
include as commercial risks the risks faced by government entities 
because their need to manage risk is no different than the need of 
commercial firms.\946\ Additional commenters suggested that commercial 
risk be interpreted to include risks faced by non-profit firms.\947\
---------------------------------------------------------------------------

    \946\ See letter from Milbank, Tweed, Hadley & McCloy LLP 
(``Milbank'').
    \947\ See letters from CDEU and NFPEEU.
---------------------------------------------------------------------------

    Some commenters also supported modification of the rule text for 
specific purposes such as including risks from ``transmitting'' to 
cover activities of electricity companies,\948\ to encompass risks 
``arising from'' an asset rather than just risks arising from changes 
in value

[[Page 30674]]

of the asset,\949\ and to encompass the use of swaps by structured 
finance special purpose vehicles to hedge interest rate risk in 
structured financing.\950\
---------------------------------------------------------------------------

    \948\ See letter from Edison Int'l.
    \949\ See letter from Milbank.
    \950\ See letter from American Securitization Forum (``ASR'').
---------------------------------------------------------------------------

b. Availability of Exclusion to Financial Entities
    Several commenters supported making the exclusion available to 
financial companies.\951\ Some commenters further stated that there 
should be no special limits on financial entities with regard to the 
exclusion,\952\ and that commercial risk should be defined broadly to 
include all of the commercial activities of a person, whether or not 
those activities relate to financial or non-financial commodities.\953\ 
Two commenters discussing the use of swaps by insurance companies 
stated that making the exclusion available to financial companies is 
consistent with CFTC practice in the futures markets, that there is no 
fundamental difference in how an insurance company or a commercial 
enterprise uses swaps to reduce its risk, and that commercial risk 
encompasses financial risk.\954\ In addition, these commenters noted 
that insurance regulators allow insurance companies to use swaps to 
hedge risk.\955\
---------------------------------------------------------------------------

    \951\ See letters from ACLI, American Express Company 
(``Amex''), California State Teachers' Retirement System 
(``CalSTRS'') dated Feb. 28, 2011 (``CalSTRS I''), ISDA I, MetLife, 
NAIC and Peabody.
    \952\ See letters from Amex, CalSTRS I and Peabody.
    \953\ See letter from Amex.
    \954\ See letters from ACLI and MetLife.
    \955\ Id.
---------------------------------------------------------------------------

    On the other hand, some commenters opposed allowing financial 
entities to avail themselves of the exclusion, arguing that there is no 
benefit from allowing a financial firm to avoid major participant 
regulation through the hedging exclusion,\956\ that the exclusion would 
allow financial companies to engage in risky trades,\957\ and that the 
exclusion should be narrowly interpreted to cover hedging of only risks 
related to products.\958\
---------------------------------------------------------------------------

    \956\ See letter from Senator Levin (further highlighting the 
need to add strict standards and controls to prevent evasion).
    \957\ See letters cited in note 939, supra.
    \958\ See letter from AFR.
---------------------------------------------------------------------------

c. Hedging Risks of Affiliates and Third Parties
    Some commenters expressed support for allowing persons to take 
advantage of the hedging exclusion when they use swaps to hedge the 
commercial risks of affiliates or third parties. Some commenters 
suggested that a person that aggregates and hedges risk within a 
corporate group should be allowed to use the exclusion despite the fact 
that it is the affiliates' risks that are hedged.\959\ One commenter 
further stated that providers of risk management services should be 
allowed to take advantage of the exclusion because they are hedging 
commercial risk on behalf of their clients.\960\
---------------------------------------------------------------------------

    \959\ See letters from CDEU, EDF Trading, Kraft, Metlife and 
Philip Morris.
    \960\ See letter from EDF Trading.
---------------------------------------------------------------------------

    One commenter, on the other hand, stated that the exclusion should 
be read narrowly for captive finance companies because the hedging 
entity may have to liquidate positions rapidly without access to 
affiliate's funds.\961\
---------------------------------------------------------------------------

    \961\ See meeting with Duffie on February 2, 2011.
---------------------------------------------------------------------------

d. Hedge Effectiveness and Documentation
    Many commenters suggested that the rule should not test hedge 
effectiveness, explaining that requiring demonstration of hedge 
effectiveness would impose a subjective standard and would not reduce 
systemic risk.\962\ In this regard, some commenters that addressed the 
proposed procedural requirements in the Exchange Act definition argued 
that these procedures would place unnecessary regulatory burdens on 
entities not regulated under the Dodd-Frank Act.\963\ Conversely, one 
commenter that supported testing hedge effectiveness stated that the 
subdivided parts of a hedge should line up exactly with the subdivided 
parts of the risk.\964\
---------------------------------------------------------------------------

    \962\ See letters from EEI/EPSA and EDF Trading; see also 
letters from CDEU, Kraft Metlife, NRG Energy and Philip Morris (that 
such a test would be overly prescriptive).
    \963\ See letters from FSR I and SIFMA AMG I.
    \964\ See letter from Better Markets I.
---------------------------------------------------------------------------

    Some commenters agreed that the relationship between hedging and 
risk should be documented. One commenter expressed the view that 
documentation would facilitate audits.\965\ Others took the view that a 
person should be required to demonstrate that the hedge does not create 
additional risk, that the risk may be hedged by swaps, and that there 
is a link between the swap and the risk.\966\
---------------------------------------------------------------------------

    \965\ See letter from Metlife (but opposing ongoing evaluation 
of hedge effectiveness).
    \966\ See letters from AFR and Senator Levin.
---------------------------------------------------------------------------

    Several commenters suggested that once initiated, a hedge should 
not be retested over time, regardless of whether the position continues 
to serve a hedging purpose.\967\ Other commenters disagreed, stating 
that a position that is no longer a hedge should not be covered by the 
exclusion.\968\
---------------------------------------------------------------------------

    \967\ See letters from CDEU, EDF Trading, EEI/EPSA, Kraft, 
Metlife, NRG Energy and Philip Morris.
    \968\ See letters from Better Markets I and Senator Levin.
---------------------------------------------------------------------------

e. Swaps That Hedge Positions Held for Speculative, Investment or 
Trading Purposes
    Many commenters took the view that swaps or security-based swaps 
used to hedge positions held for speculative, investment or trading 
purposes should qualify as hedges of commercial risk.\969\ A few 
commenters stated that speculation, investment and trading are 
fundamental to commercial activity, and thus cannot be differentiated 
from other types of commercial activity.\970\ Other commenters 
suggested the exclusion should cover swap positions that hedge other 
swap or security-based swap positions that are not themselves hedging 
positions.\971\ Some commenters asserted that trading is different from 
speculating (taking an outright view on market direction) and investing 
(entering into a swap for appreciation in value of the swap position), 
and that swaps held for ``trading'' should be able to qualify for the 
exclusion.\972\
---------------------------------------------------------------------------

    \969\ See letters from BG LNG II, COPE I, EPSA, FSR I, Metlife, 
Peabody, Vitol and WGCEF dated February 22, 2011 regarding the major 
swap participant definition (``WGECF II''), and meeting with Bunge; 
see also letter from ISDA I (taking the view that swaps and 
security-based swaps used to hedge speculative positions should 
qualify as hedges and stating that failure to treat them as hedges 
would ``invariably result in there being more unhedged speculative 
risk in the market'').
    \970\ See letters from Vitol and WGCEF II and meeting with 
Bunge.
    \971\ See letters from BG LNG II, FSR I, ISDA I and Metlife.
    \972\ See letters from COPE I, EPSA and Peabody.
---------------------------------------------------------------------------

    Some commenters requested that the definition under the CEA clarify 
how swaps that qualify as bona fide hedges are treated for the major 
swap participant definition if the underlying position had a 
speculative, investment or trading purpose,\973\ and clarify that while 
the hedging exclusion would not apply to swap positions that hedge 
other swap positions that are held for speculation or trading, the 
hedging provision would apply to swap positions that hedge other non-
swap positions held for speculation or trading.\974\ Commenters also 
requested that the final rules provide that the hedging exclusion be 
available for physical positions in exempt or agricultural commodities 
and arbitrage positions relating to price differences between physical 
commodities at

[[Page 30675]]

different locations.\975\ One commenter, on the other hand, suggested 
that even swap positions that hedge other swap positions which are not 
hedging positions should be treated as hedging commercial risk because 
they are risk reducing.\976\
---------------------------------------------------------------------------

    \973\ See letters from Vitol and WGCEF dated June 3, 2011 
regarding the major swap participant definition (``WGECF VI'').
    \974\ See letter from BG LNG II.
    \975\ See letters from BGLNG II and WGCEF VI.
    \976\ See letters from MetLife.
---------------------------------------------------------------------------

    Four commenters took the position that swaps held for a purpose 
that is in the nature of speculation, investing or trading should not 
qualify as hedges of commercial risk.\977\ One commenter pointed out 
that experience has shown that market participants sometimes 
inaccurately characterize positions as hedges (e.g., the inaccurate 
characterization occurs because the nature of positions change over 
time), and that excluding swap positions that hedge speculative, 
investment or trading positions would be especially inappropriate for 
financial firms that frequently use swaps to speculate, invest or 
trade.\978\ One commenter stated that any swap position hedging another 
swap position could never be considered to be hedging commercial risk 
because the second swap is only adjusting the first swap position, 
meaning that neither swap would be congruent with risk reduction.\979\ 
Another commenter stated that the hedging exclusion should not cover 
any swap hedging a speculative position.\980\
---------------------------------------------------------------------------

    \977\ See letters from AFR, Better Markets I and Senator Levin 
and meeting with Duffie on February 2, 2011.
    \978\ See letter from Senator Levin.
    \979\ See letter from Better Markets I.
    \980\ See meeting with Duffie on February 2, 2011.
---------------------------------------------------------------------------

3. Final Rules--General Availability of the Exclusions
    As with the proposed rules, the final CEA and Exchange Act rules 
implementing this exclusion are different in certain regards to reflect 
the different ways that swaps and security-based swaps may be expected 
to be used to hedge commercial risk, as well as differences in existing 
regulations under the CEA and the Exchange Act. Notwithstanding these 
differences, the two rules follow parallel approaches and address 
certain key issues in similar ways.
a. Availability to Financial Entities
    Consistent with the position we took in the Proposing Release, the 
final rules with regard to both major participant definitions do not 
foreclose financial entities from being able to take advantage of the 
commercial risk hedging exclusion in the first major participant test. 
This conclusion in part is guided by the fact that the statutory text 
implementing this hedging exclusion does not explicitly foreclose 
financial entities from taking advantage of the exclusion--in contrast 
to Title VII's exceptions from mandatory clearing requirements for 
commercial risk hedging activities. The conclusion also results from 
the need to avoid an interpretation that would cause the third major 
participant test to be redundant.\981\
---------------------------------------------------------------------------

    \981\ While we recognize that commenters have identified policy 
reasons as to why financial entities should be entirely excluded 
from being able to take advantage of the hedging exclusion, we 
continue to believe the language of the major participant 
definitions dictates a contrary approach.
---------------------------------------------------------------------------

    In reaching this conclusion, we recognize that some commenters 
stated that there would be no benefit from allowing financial firms to 
avoid regulation as a major swap participant through the hedging 
exclusion, and that the exclusion should cover only risks related to 
non-financial commercial activities, or else the exclusion would allow 
financial companies to engage in risky transactions.\982\ We believe 
that not allowing the exclusion to cover swaps or security-based swaps 
used for speculation or trading (or investments, in the case of swaps) 
will be sufficient to limit financial entities' ability to engage in 
risky transactions. We also are not persuaded that ``commercial risk'' 
should be limited to only risks related to non-financial activities.
---------------------------------------------------------------------------

    \982\ See letters from AFR and Senator Levin.
---------------------------------------------------------------------------

    We nonetheless recognize the significance of concerns that 
financial entities may seek to depict speculative positions as hedges 
to take advantage of the exclusion. We also are mindful of the need to 
give appropriate meaning to the term ``commercial risk'' within the 
exclusion. We believe that the standard set forth in the final rules, 
including the provisions that make the exclusions unavailable to swap 
or security-based swap positions of a speculative or trading nature (or 
investment purposes, in the case of swaps), apply the statutory test in 
a manner that appropriately addresses those other concerns. As 
discussed below, those standards limit the ability of financial 
entities to take advantage of the exclusion.\983\
---------------------------------------------------------------------------

    \983\ We also do not believe that the size of an entity or an 
entity's position is determinative of whether a position hedges 
commercial risk. Moreover, given that the major participant 
definitions implicitly require large swap or security-based swap 
positions as triggers, a rule that made the hedging exclusion 
unavailable to entities with large positions could negate the 
statutory hedging exclusion.
---------------------------------------------------------------------------

b. Availability to Non-Profit and Governmental Entities
    Under the final rules, a person's organizational status will not 
determine the availability of this hedging exclusion. The exclusion 
thus may be available to non-profit or governmental entities, as well 
as to for-profit entities, if the underlying activity to which the swap 
or security-based swap relates is commercial in nature.
c. Hedges of ``Financial'' or ``Balance Sheet'' Risks
    Under the final rules, the exclusion is available to positions that 
hedge ``financial'' or ``balance sheet'' risks. While we recognize that 
some commenters oppose the exclusion of those positions,\984\ we 
nonetheless believe that the exclusion would be impermissibly narrow if 
it failed to extend to the ``financial'' or ``balance sheet'' risks 
that entities may face as part of their commercial operations, given 
that those types of risks (e.g., interest rate and foreign exchange 
risks) may be expected to arise from the commercial operations of non-
financial end-users of swaps and security-based swaps. We do not 
believe the exclusion was intended to address those risks differently 
from other commercial risks, such as risks associated with the cost of 
physical inputs or the price received for selling products.\985\
---------------------------------------------------------------------------

    \984\ See notes 942 and 943, supra.
    \985\ Moreover, it is questionable as to what types of security-
based swap positions--if any--would fall within the exclusion for 
purposes of the ``major security-based swap participant'' definition 
if the exclusion did not extend to hedges of ``financial'' or 
``balance sheet'' risks. Security-based swaps such as single-name 
credit default swaps and equity swaps would not appear amenable to 
hedging a commercial entity's non-financial risks, such as price 
risks associated with non-financial inputs or sales. We do not 
believe that it would be appropriate to interpret the exclusion in 
such a way as to make it a nullity in the context of the ``major 
security-based swap participant'' definition.
---------------------------------------------------------------------------

d. Hedging on Behalf of an Affiliate
    The final rules further provide that the exclusion is not limited 
to the hedging of a person's own risks, but also would extend to the 
hedging of the risks of a person's majority-owned affiliate.\986\

[[Page 30676]]

This approach reflects the fact that a corporate group may use a single 
entity to face the market to engage in hedging activities on behalf of 
entities within the group. In our view, it would not be appropriate for 
the swap or security-based swap positions of the market-facing entity 
to be encompassed within the first major participant test if those same 
positions could have been excluded from the analysis if entered into 
directly by the affiliate.\987\ Of course, the exclusion will only be 
available to the market-facing entity if the position would have been 
subject to the exclusion--e.g., not for a speculative or trading 
purpose--had the affiliate directly entered into the position.
---------------------------------------------------------------------------

    \986\ See CFTC Regulation Sec.  1.3(kkk)(1)(i); Exchange Act 
rule 3a67-4(a)(1). For these purposes--consistent with the standards 
regarding the application of the dealer and major participant 
definitions to inter-affiliate swaps and security based swaps, see 
parts II.C and IV.G--we would view the counterparties to be 
majority-owned affiliates if one party directly or indirectly holds 
a majority ownership interest in the other, or if a third party 
directly or indirectly holds a majority interest in both, based on 
holding a majority of the equity securities of an entity, or the 
right to receive upon dissolution or the contribution of a majority 
of the capital of a partnership. See note 348, supra.
    \987\ The exclusion, however, would not be available to the 
extent that a person enters into swaps or security-based swaps in 
connection with the hedging activities of an unaffiliated third 
party. Such activities, moreover, may indicate that the person is 
acting as a swap dealer or security-based swap dealer.
---------------------------------------------------------------------------

4. Final Rules--``Major Swap Participant'' Definition Under the CEA
a. In General
    The general scope of the rule regarding ``hedging or mitigating 
risk'' will be adopted substantially as proposed.\988\ The CFTC, 
however, is adopting CFTC Regulation Sec.  1.3(kkk) with a modification 
to paragraph (1)(iii) to include a reference to qualified hedging 
treatment for positions meeting Government Accounting Standards Board 
(``GASB'') Statement 53, Accounting and Financial Reporting for 
Derivative Instruments. The CFTC believes that this minor modification 
to CFTC Regulation Sec.  1.3(kkk) is necessary in order to include 
swaps that qualify for hedging treatment issued by GASB.\989\
---------------------------------------------------------------------------

    \988\ The final rule text of CFTC Regulation Sec.  1.3(kkk)(2) 
has been revised to include the conjunction ``and'' between clauses 
(i) and (ii). In the proposed text of this rule, there was no 
conjunction between these two clauses, while the conjunction ``and'' 
was used in the parallel rule, Sec.  240.3a67-4(b), under the 
Exchange Act. Thus, the revision of the final rule text conforms the 
CEA rule to the Exchange Act rule.
    Also, the final rule text of CFTC Regulation Sec.  
1.3(kkk)(1)(E) has been revised to include interest and currency 
rates to be consistent with Sec.  1.3(kkk)(1)(F). Both provisions 
address similar financial risks arising from rate ``movements'' and 
``exposures,'' respectively.
    \989\ Local government entities that use GASB accounting 
standards may not be able to use comparable FASB hedge accounting as 
a demonstration that a swap is a hedge. Although the two standards 
are not the same, they are similar in effect and degree in respect 
of determining whether a swap hedges a risk.
---------------------------------------------------------------------------

    As noted above, the CFTC will not prohibit financial companies from 
using the hedging exclusion because the exclusion for positions held 
for hedging or mitigating commercial risk set forth in CEA section 
1a(33)(A)(i)(1) does not limit its application based on the 
characterization or status of the person or entity. Unlike the end-user 
clearing exemption of section 2(h)(7), the major swap participant 
hedging exclusion is not foreclosed to financial entities.\990\ In 
addition, the hedging exclusion will extend to entities hedging the 
risks of affiliates in a corporate group, but not to third parties 
outside of a corporate group.
---------------------------------------------------------------------------

    \990\ Although CEA section 1a(33)(A)(iii), 7 U.S.C. 
1a(33)(A)(iii) provides that financial entities that are highly 
leveraged and not subject to capital requirements established by a 
Federal banking agency are effectively precluded from applying the 
hedging exclusion, other financial entities are not so precluded. 
Thus, availability of the hedging exclusion to some financial 
entities for purposes of the major swap participant definition is 
contemplated in the statutory text.
---------------------------------------------------------------------------

    Like the proposed rule, the final rule under the CEA does not 
require a demonstration of hedge effectiveness, periodic retesting or 
specific documentation in order to apply the hedging exclusion from the 
definition of major swap participant.
b. Swaps That Hedge Positions Held for Speculation, Investment, or 
Trading
    Swaps that hedge positions held for speculation, investment or 
trading will not qualify for the exclusion. In the Proposing Release, 
the CFTC explained that swap positions held for the purpose of 
speculation, investment or trading are those held primarily to take an 
outright view on market direction, including positions held for short 
term resale, or to obtain arbitrage profits.\991\ Additionally, the 
Proposing Release stated that swap positions that hedge other positions 
that themselves are held for the purpose of speculation, investment or 
trading are also speculative, investment or trading positions.\992\
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    \991\ See 75 FR at 80195 n.128.
    \992\ Id.
---------------------------------------------------------------------------

    We note that some commenters suggested that swaps that hedge 
speculative, investment or trading positions should qualify for the 
exclusion because speculation, investment or trading are fundamental to 
commercial activity and cannot be differentiated from other types of 
commercial activity. Similarly, commenters that support allowing 
speculative, investment or trading positions to qualify for the 
exception stated that a swap hedging the risk of another swap 
(regardless of that swap's nature) is risk reducing and therefore 
hedges commercial risk. We believe that these commenters' 
interpretation of ``commercial'' is not consistent with congressional 
intent or the meaning of ``commercial'' in the Dodd-Frank Act with 
respect to the first test of the major participant definition or the 
end-user exception to the clearing mandate. We are unconvinced that 
allowing swap positions to qualify for the exception would be 
appropriate when used to hedge speculative, investment or trading 
positions because the swap would not hedge or mitigate the risks 
associated with the underlying position, or at least not in the manner 
intended by Congress. In addition, we believe that doing so would 
undermine the effectiveness of the major participant definition in that 
entities would be able to characterize positions for speculative, 
investment or trading purposes as hedges and therefore evade regulation 
as major participants.
    Under CFTC Regulation Sec.  1.3(kkk)(2)(i), swap positions executed 
for the purpose of speculating, investing, or trading are those 
positions executed primarily to take an outright view on market 
direction or to obtain an appreciation in value of the swap position 
itself, and not primarily for hedging or mitigating underlying 
commercial risks.\993\ For example, swaps positions held primarily for 
the purpose of generating profits directly upon closeout of the swap, 
and not to hedge or mitigate underlying commercial risk, are 
speculative or serve as investments. Further, as an alternative 
example, swaps executed for the purpose of offsetting potential future 
increases in the price of inputs that the entity reasonably expects to 
purchase for its commercial activities serve to hedge a commercial 
risk.
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    \993\ The Commissions note that the SEC interprets the 
availability of the hedging exclusion differently in the context of 
the ``major security-based swap participant'' definition, and that 
the SEC's guidance in this area controls for purposes of that 
definition.
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    The CFTC notes that the use of ``trading'' in this context is not 
used to mean simply buying and selling. Rather, a party is using a swap 
for the purpose of trading under the rule when the party is entering 
and exiting swap positions for purposes that have little or no 
connection to hedging or mitigating commercial risks incurred in the 
ordinary course of business. ``Trading,'' as used in CFTC Regulation 
Sec.  1.3(kkk)(2)(i), therefore would not include simply the act of 
entering into or exiting swaps if the swaps are used for the purpose of 
hedging or mitigating commercial risks incurred in the ordinary course 
of business.\994\
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    \994\ The CFTC further clarifies that merchandising activity in 
the physical marketing channel qualifies as commercial activity, 
consistent with the Commission's longstanding bona fide hedging 
exemption to speculative position limits. See Sec.  1.3(kkk)(1)(ii).

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[[Page 30677]]

    The CFTC acknowledges that some swaps that may be characterized as 
``arbitrage'' transactions in certain contexts may also reduce 
commercial risks enumerated in CFTC Regulation Sec.  1.3(kkk)(1). The 
discussion in footnote 128 of the Proposing Release was intended to 
focus on clarifying that swaps are speculative for purposes of the rule 
if entered into principally and directly for profit and not principally 
to hedge or mitigate commercial risk. The reference to ``arbitrage 
profits'' in footnote 128 was intended to provide an example of what is 
commonly a speculative swap, not to characterize all arbitrage swaps as 
speculative.
c. ``Economically Appropriate'' Standard
    The CFTC has determined to adopt the ``economically appropriate'' 
standard as proposed. We believe that this standard will help the CFTC 
and market participants distinguish which swaps are, or are not, 
commercial hedges thereby reducing regulatory uncertainty and helping 
prevent abuse of the hedging exclusion. CFTC Regulation 1.3(kkk)(1)(i) 
of the final rules enumerates specific risk shifting practices that are 
deemed to qualify for purposes of the hedging exclusion.\995\ Whether a 
swap is economically appropriate to the reduction of risks will be 
determined by the facts and circumstances applicable to the swap at the 
time a swap is entered into. While we acknowledge that this standard 
leaves room for judgment in its application, we believe this 
flexibility is needed given the wide variety of swaps and hedging 
strategies the rule applies to. We believe the economically appropriate 
standard together with the identification of the six different 
categories of permissible commercial risks listed in final CFTC 
Regulation Sec.  1.3(kkk)(1)(i) is specific enough, when reasonably 
applied, to distinguish whether a swap is being used to hedge or 
mitigate commercial risk.
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    \995\ In the alternative to meeting the requirements of CFTC 
Regulation Sec.  1.3(kkk)(1)(i), a swap may also be eligible for the 
hedging exclusion if the swap qualifies as a bona fide hedge for 
purposes of an exception from position limits under the CEA as 
provided in CFTC Regulation Sec.  1.3(kkk)(1)(ii), or if it 
qualifies for hedging treatment under FASB Accounting Standards 
Codification Topic 815 or under GASB Statement 53 as provided in 
CFTC Regulation Sec.  1.3(kkk)(1) (iii). Consequently, the universe 
of swaps that can qualify for the hedging exclusion is broader than 
the universe of swaps that qualify as bona fide hedges for purposes 
of an exception from position limits under the CEA as provided in 
CFTC Regulation Sec.  1.3(kkk)(1)(ii).
---------------------------------------------------------------------------

    The Commission has determined not to adopt a ``congruence'' 
standard because that standard may be too restrictive and difficult to 
use given the range of potential types of swaps and hedging strategies 
available.
5. Final Rules--``Major Security-Based Swap Participant'' Definition 
Under the Exchange Act
a. ``Economically Appropriate'' Standard
    The final rules retain the proposed ``economically appropriate'' 
standard, by which a security-based swap position that is used for 
hedging purposes \996\ would be eligible for exclusion from the first 
major participant analysis if the position is economically appropriate 
to the reduction of risks in the conduct and management of a commercial 
enterprise, when those risks arise from the potential change in the 
value of assets, liabilities and services in connection with the 
ordinary course of business of the enterprise.\997\
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    \996\ In the Proposing Release we stated that we did not believe 
the use of the term ``mitigating'' in the exclusion to mean 
something significantly more than ``hedging.'' See Proposing 
Release, 75 FR 80194 n.127. As noted above, some commenters 
disagreed, and argued that ``mitigating'' should be interpreted more 
broadly to encompass general risk mitigation strategies. See, e.g., 
letters from ISDA and CDEU. In our view, the final rules we are 
adopting--including the use of ``economically appropriate'' 
standards and the exclusions for certain positions--encompass 
positions that may reasonably be described as ``hedging'' or 
``mitigating'' commercial risk.
    \997\ Exchange Act rule 3a67-4(a)(1). Under this standard, the 
first major participant analysis need not account for security-based 
swap positions that pose limited risk to the market and to 
counterparties because the positions are substantially related to 
offsetting risks from a person's commercial operations. These 
hedging positions would include activities, such as the management 
of receivables, that arise out of the ordinary course of a person's 
commercial operations, including activities that are incidental to 
those operations. See Proposing Release, 75 FR at 80195.
    In addition, the security-based swap positions included within 
the rule would not be limited to those recognized as hedges for 
accounting purposes. See id.
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    Consistent with the Proposing Release, we interpret the concept of 
``economically appropriate'' to mean that the security-based swap 
position cannot materially over-hedge the underlying risk such that it 
could reasonably have a speculative effect,\998\ and that the position 
cannot introduce any new basis risk or other type of risk (other than 
counterparty risk that is attendant to all security-based swaps) more 
than reasonably is necessary to manage the identified risks.
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    \998\ In the Proposing Release, we described the ``economically 
appropriate'' standard as excluding positions that introduce ``any 
new material quantum of risks.'' See Proposing Release, 75 FR 80194 
n. 129. The interpretation in this release is consistent with that 
approach, but does not make use of the same ``quantum of risks'' 
terminology.
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    For example, a manufacturer that wishes to hedge the risk 
associated with a customer's long-term lease of a product may purchase 
credit protection using a single-name credit default swap on which the 
customer is the reference entity. The credit default swap may be 
excluded from the first major participant analysis even if it is for a 
shorter term than the anticipated duration of the lease so long as the 
use of such a shorter-term instrument is reasonable as a hedge, such as 
due to cost or liquidity reasons.\999\ Also, the credit default swap 
may be excluded from the first major participant test if it hedges an 
amount of risk that is lower than the total amount of risk associated 
with the long-term contract.\1000\
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    \999\ In other words, the entity may determine that the use of a 
credit default swap for a term that is shorter than the lease is 
justified if that shorter-term instrument costs less or is more 
liquid than a bespoke instrument that matches the duration of the 
contract. While the shorter-term credit default swap does not 
eliminate the underlying commercial risk, the instrument's use may 
be commercially reasonable for hedging purposes, and hence 
appropriately excluded from the first major participant test.
    \1000\ The use of a credit default swap for an amount that is 
smaller than the underlying risk may be justified as part of an 
entity's risk management strategy. For example, an entity may choose 
to engage in a partial hedge because a credit default swap for a 
smaller amount than the underlying risk may cost less or be more 
liquid than a bespoke instrument that more closely matches the 
amount of the risk.
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    In adopting this rule, we have considered commenter views that we 
should consider limiting the exclusion to positions that are recognized 
as hedges for accounting purposes.\1001\ We nonetheless do not believe 
that the requirements that are appropriate to identifying hedging for 
accounting purposes are needed to limit the availability of the hedging 
exclusion. Moreover, linking the availability of the exclusion to 
accounting standards--which themselves may evolve over time--may lead 
the availability of the exclusion to evolve over time in unforeseen 
ways. We accordingly believe that the exclusion should be available if 
a security-based swap position is economically appropriate for hedging 
purposes (and not otherwise precluded from taking advantage of the 
exclusion).
---------------------------------------------------------------------------

    \1001\ See letter from Senator Levin.
---------------------------------------------------------------------------

    We also have considered commenter concerns that the ``economically 
appropriate'' standard is too broad,\1002\ and the additional 
suggestion that the exclusion instead should be limited to 
circumstances in which the hedge is ``congruent'' to the underlying 
risk.\1003\
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    \1002\ See letters from AFR and AFSCME.
    \1003\ See letter from Better Markets I. We nonetheless do not 
believe that such a requirement would be consistent with the 
exclusion's ``commercial risk'' terminology or underlying intent. A 
congruence standard particularly would not appear to adequately 
reflect the fact that commercially reasonable hedging activities can 
leave residual basis risk.

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[[Page 30678]]

    We recognize the significance of commenters' concerns as to the 
practical application of the ``economically appropriate'' standard, 
particularly with regard to hedges that are not perfectly correlated 
with the underlying risk.\1004\ The standard embeds principles of 
commercial reasonableness that should assuage those implementation 
concerns, however. These principles necessarily account for the fact 
that the reasonable use of security-based swaps to hedge a person's 
commercial risk may result in residual basis risk, and that the mere 
presence of this basis risk should not preclude the availability of the 
exclusion. Moreover, the mere presence of residual basis risk need not 
run afoul of the restriction against materially over-hedging the 
underlying risk, which is instead intended to prevent the hedging 
exclusion from applying to positions that are entered into for 
speculative purposes or that have speculative effect (such as by being 
based on a notional amount that is disproportionate to the underlying 
risk).\1005\
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    \1004\ See letter from SIFMA AMG II.
    \1005\ For example, non-material basis risk or a non-material 
over-hedge may occur due to the use of a standardized instrument. A 
commercial entity may reasonably determine that it is cost effective 
to use a standardized security-based swap to hedge the underlying 
risk, even if use of the standardized instrument introduces non-
material basis risk or reflects a non-material amount of over-
hedging compared to what would be the result of using a bespoke 
security-based swap to hedge that risk.
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    We also acknowledge that an ``economically appropriate'' standard 
does not provide the compliance assurance that would accompany 
quantitative tests or safe harbors. Nonetheless, grounding the hedging 
exclusion in principles of commercial reasonableness permits the 
standard to be sufficiently flexible to appropriately address an end-
user's particular circumstances and hedging needs. Use of an 
``economically appropriate'' standard also is consistent with the fact 
that entities should be expected to use their reasonable business 
judgment when hedging their commercial risks.
    To provide additional guidance to entities hedging commercial risk, 
moreover, the final rule incorporates examples of security-based swap 
positions that, depending on the applicable facts and circumstances, 
may satisfy the ``economically appropriate'' standard.\1006\ These are:
---------------------------------------------------------------------------

    \1006\ Exchange Act rule 3a67-4(a)(2). We previously noted that 
the proposed definition would facilitate those types of security-
based swap positions. See Proposing Release, 75 FR at 80196.
---------------------------------------------------------------------------

     Positions established to manage the risk posed by a 
customer's, supplier's or counterparty's potential default in 
connection with: financing provided to a customer in connection with 
the sale of real property or a good, product or service; a customer's 
lease of real property or a good, product or service; a customer's 
agreement to purchase real property or a good, product or service in 
the future; or a supplier's commitment to provide or sell a good, 
product or service in the future.\1007\
---------------------------------------------------------------------------

    \1007\ As discussed in the Proposing Release, see 75 FR at 80196 
n.135, the references here to customers and counterparties do not 
include swap or security-based swap counterparties.
---------------------------------------------------------------------------

     Positions established to manage the default risk posed by 
a financial counterparty (different from the counterparty to the 
hedging position at issue) in connection with a separate transaction 
(including a position involving a credit derivative, equity swap, other 
security-based swap, interest rate swap, commodity swap, foreign 
exchange swap or other swap, option, or future that itself is for the 
purpose of hedging or mitigating commercial risk pursuant to the rule 
or the counterpart rule under the Commodity Exchange Act);
     Positions established to manage equity or market risk 
associated with certain employee compensation plans, including the risk 
associated with market price variations in connection with stock-based 
compensation plans, such as deferred compensation plans and stock 
appreciation rights;
     Positions established to manage equity market price risks 
connected with certain business combinations, such as a corporate 
merger or consolidation or similar plan or acquisition in which 
securities of a person are exchanged for securities of any other person 
(unless the sole purpose of the transaction is to change an issuer's 
domicile solely within the United States), or a transfer of assets of a 
person to another person in consideration of the issuance of securities 
of such other person or any of its affiliates;
     Positions established by a bank to manage counterparty 
risks in connection with loans the bank has made; and
     Positions to close out or reduce any of the positions 
addressed above.
b. Treatment of Speculative or Trading Positions
    The final rule, consistent with the proposal, provides that this 
hedging exclusion does not extend to security-based swap positions that 
are in the nature of speculation or trading.\1008\ The exclusion thus 
does not extend to security-based swap positions that are held for 
short-term resale and/or with the intent of benefiting from actual or 
expected short-term price movements or to lock in arbitrage profits, or 
to security-based swap positions that hedge other positions that 
themselves are held for the purpose of speculation or trading.\1009\
---------------------------------------------------------------------------

    \1008\ Exchange Act rule 3a67-4(b)(1). The commercial risk 
hedging exclusion for the purposes of the ``major security-based 
swap participant'' definition (in contrast to the commercial risk 
hedging exclusion in connection with the ``security-based swap 
dealer'' definition) does not turn upon whether a position is 
``primarily'' for speculative or trading purposes. For the ``major 
security-based swap participant'' definition, a security-based swap 
position with any speculative or trading purpose cannot take 
advantage of the commercial risk hedging exclusion regardless of 
whether speculation or trading constitutes the ``primary'' purpose 
of the position.
    \1009\ See generally Basel Committee on Banking Supervision, 
``International Convergence of Capital Measurement and Capital 
Standards, A Revised Framework, Comprehensive Version'' (June 2006) 
at ]] 685-689(iii) (defining the term ``trading book'' for purposes 
of international bank capital standards, and stating that positions 
that are held for short-term resale and/or with the intent of 
benefiting from actual or expected short-term price movements or to 
lock in arbitrage profits are typically considered part of an 
entity's trading book).
     In contrast to the CEA rule implementing the commercial risk 
hedging definition in the context of the ``major swap participant'' 
definition, the Exchange Act rule does not explicitly exclude 
security-based swaps held for the purpose of investing. We note, 
however, that security-based swaps held for the purpose of investing 
(i.e., held primarily to obtain an appreciation in value of the 
security-based swap position) would not meet the ``economically 
appropriate'' standard set forth above, and hence would not be 
eligible for the exclusion.
---------------------------------------------------------------------------

    The Commissions recognize that some commenters take the position 
that the exclusion should extend to security-based swap positions that 
hedge speculative or trading positions.\1010\ In support, these 
commenters have stated that the proposed approach would lead to more 
unhedged risk in the market, and that the proposed approach could lead 
entities that use security-based swaps to hedge speculative positions 
to be major participants, in contrast to unhedged (and presumably 
riskier) entities. Commenters further requested clarification regarding 
how entities may distinguish speculative or trading positions from 
other security-based swap positions.\1011\
---------------------------------------------------------------------------

    \1010\ See, e.g., letters from FSR I and ISDA I.
    \1011\ See, e.g., letter from CDEU.
---------------------------------------------------------------------------

    The Commissions nonetheless do not believe that it would be 
appropriate to extend the hedging exclusion to speculative or trading 
positions, including security-based swap positions that themselves 
hedge other positions that are for speculative or trading

[[Page 30679]]

purposes. Those limitations are appropriate to help give meaning to the 
concept of ``commercial'' risk, and to reflect the legislative intent 
to limit the impact of Title VII on commercial end-users of security-
based swaps.\1012\ Indeed, the use of security-based swap positions in 
connection with speculative and trading activity often may be expected 
either to have the purpose of locking-in arbitrage profits associated 
with those activities or producing an adjusted risk profile in 
connection with perceptions of future market behavior--neither of which 
would eliminate the speculative or trading purpose of the 
activity.\1013\ We do not believe that it would be appropriate, or 
consistent with the Dodd-Frank Act, to interpret the term ``commercial 
risk'' to accord the same regulatory treatment to security-based swap 
positions for speculative or trading purposes as is accorded to the use 
of security-based swap positions in connection with commercial 
activities such as producing goods or providing services to 
customers.\1014\
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    \1012\ In addition, this limitation is consistent with the 
exclusion from the first major participant test in connection with 
ERISA plans. That exclusion particularly addresses security-based 
swap positions with the primary purpose of ``hedging or mitigating 
any risk directly associated with the operation of the plan.'' It is 
not clear why that scope of the ERISA exclusion would need to be 
incorporated into the first major participant test if the 
``commercial risk'' exclusion already were broad enough to encompass 
hedges of trading or speculative positions.
    \1013\ As an example, one speculative/trading strategy involving 
security-based swaps can be to purchase short-dated credit 
protection in conjunction with a long-dated bond, to reflect a view 
that a particular company is likely to fail in the current credit 
environment. Combined, those positions can produce losses if the 
current credit environment did not change or if spreads were to 
widen, but could produce profits either if the company were to 
default or if spreads were to narrow and funding costs were to 
decrease. See Morgan Stanley, Credit Derivatives Insights 156-58 
(4th ed., 2008). In other words, under that strategy the purchase of 
the credit protection would offset a portion of the risks associated 
with the ownership of the bond, but for the purpose of taking a 
directional view of the market with the hope for profit if the 
purchaser's view of future market dynamics is correct (and the 
reality of losses if the purchaser's view of the market is wrong). 
It would require an extraordinarily liberal construction of 
``commercial risk'' to subsume this type of speculative security-
based swap activity.
     At the same time, we recognize that an entity hedging a 
commercial risk (in contrast to a risk arising from a speculative or 
trading strategy) reasonably may choose to use a security-based swap 
that is shorter-dated than the underlying risk, with the security-
based swap appropriately excluded from the first major participant 
definition.
    \1014\ This approach does not reflect any value judgment about 
the role of speculation in the market for security-based swaps, or 
about the relative market benefits or risks associated with 
speculation. This position simply represents an attempt to give 
meaning to the statutory use of the term ``commercial risk'' in a 
way that reflects Title VII's special treatment of commercial end-
users, and (as discussed below) avoid an interpretation that 
effectively undermines the first major participant test.
---------------------------------------------------------------------------

    Moreover, the Commissions believe that it would undermine the major 
participant definition to attribute a non-speculative or non-trading 
purpose to security-based swap positions that hedge speculative or 
trading positions. When a person uses a security-based swap position to 
help lock in profits or otherwise control the volatility associated 
with speculative or trading activity, or to cause that speculative or 
trading activity to reflect a particular market outlook or risk 
profile, the security-based swap position serves as an integral part of 
that speculative or trading activity. It thus would not appear 
appropriate or consistent with economic reality to seek to distinguish 
the security-based swap component from the other speculative or trading 
aspects of that activity. In fact, if ``hedges'' of speculative or 
trading positions were excluded from the first major participant test, 
entities could readily label a wide range of security-based swap 
positions entered into for speculative or trading purposes as being 
excluded hedges.\1015\ Taken to its natural conclusion, such an 
approach largely may exclude security-based swap positions from the 
first major participant test, effectively writing that test out of the 
statutory definition.
---------------------------------------------------------------------------

    \1015\ As noted by one participant to the roundtable on these 
definitions: ``[B]eing a hedge fund manager, there's nothing in my 
portfolio I can't claim to be hedging a risk. There's nothing. 
There's not a trade I do ever that I can't claim it to be a hedge 
against interest rates, or inflation, or against equity. You know, 
the fact of the matter is, if you're a capital market participant, 
your business is taking risks.'' Roundtable Transcript at 325 
(remarks of Michael Masters, Better Markets).
---------------------------------------------------------------------------

    We are aware of commenters' views that regulation of major 
participants has the potential to create a disincentive against certain 
entities' use of security-based swaps to manage risk in connection with 
their speculative or trading activities.\1016\ Under this view, 
regulation potentially could result in those entities electing not to 
reduce the risks that they otherwise would seek to hedge, to avoid 
being regulated as major participants.\1017\ That potential result, 
however, is an unavoidable consequence of the legislative decision to 
regulate persons whose security-based swap positions cause them to be 
major participants. It would not be appropriate to use the hedging 
exclusion to negate part of the underlying statutory definition simply 
to avoid disincentives that are an unavoidable consequence of the 
legislative decision to regulate major participants.
---------------------------------------------------------------------------

    \1016\ See letter from ISDA I.
    \1017\ Of course, this would only be the case where the entity's 
hedging and speculative activities combined were at a level in 
excess of the major participant thresholds.
---------------------------------------------------------------------------

    At the same time, we are mindful that market participants have 
requested further guidance as to how to distinguish between hedging 
positions that are subject to this exclusion, and speculative or 
trading positions that fall outside the exclusion. In our view, 
analysis of this issue is simplified by the nature of security-based 
swaps, and by the limited circumstances in which a person may be 
expected to have a commercial risk such that the use of a security-
based swap may be economically appropriate for managing that commercial 
risk (rather than being for speculation or trading purposes).
    In the case of security-based swaps that are credit derivatives, 
the final rule provides examples of the use of credit default swaps to 
purchase credit protection that, depending on the applicable facts and 
circumstances, may appropriately be excluded from the first major 
participant test (e.g., the use of a credit default swap to purchase 
credit protection in connection with the potential default of a 
customer, supplier or counterparty, or in connection with loans made by 
a bank). Certain other purchases of credit protection using credit 
default swaps--such as the purchase of credit protection to manage the 
risks associated with securities that a non-financial company holds in 
a corporate treasury and that are not held for speculative or trading 
purposes--may also meet the standard under these rules.\1018\ The sale 
of offsetting credit protection may also reasonably be expected to fall 
within the exclusion to the extent that this sale is reasonably 
necessary to address changes (particularly reductions) in the amount of 
underlying commercial risk hedged by the initial security-based swap 
position.\1019\
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    \1018\ This is not to say that the purchase of credit protection 
on a security that a person owns would necessarily be entitled to 
the hedging exclusion. If the underlying security itself is held for 
speculative or trading purposes, the credit protection would not be 
excluded from the first major participant analysis, and in any event 
would not reasonably be construed as hedging ``commercial risk.''
    \1019\ Apart from that example, it is more difficult to foresee 
circumstances in which the sale of credit protection using a credit 
default swap would be expected to fall within the exclusion. We 
recognize, for example, that a person that has a short position in a 
security of a reference entity may have an incentive to sell credit 
protection on that reference entity to offset movements in the price 
or value of that short position (and/or lock in arbitrage profits in 
connection with that short position). While that sale of credit 
protection may mitigate the risks associated with that short 
position, or produce an arbitrage profit in connection with that 
short position, that security-based swap position would not appear 
to constitute the hedging of ``commercial risk'' for purposes of the 
exclusion.

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[[Page 30680]]

    As for security-based swaps that are not credit derivatives--such 
as equity swaps and total return swaps--the final rule provides 
examples of how the use of those security-based swaps in connection 
with certain business combinations may, depending on the applicable 
facts and circumstances, appropriately be excluded from the first major 
participant test. The use of equity swaps or total return swaps to 
manage the risks associated with securities that are held in a 
corporate treasury (and that are not held for speculative or trading 
purposes) may also appropriately be subject to the exclusion. Other 
uses of equity swaps or total return swaps to offset risks associated 
with long or short positions in securities, however, may not 
appropriately be excluded from the first major participant test, 
because such positions would be expected to have an arbitrage purpose 
or other speculative or trading purpose, and would be inconsistent with 
the ``commercial risk'' limitation to the hedging exclusion.
c. Treatment of Positions That Hedge Other Swap or Security-Based Swap 
Positions
    The final rule, consistent with the proposal, provides that the 
hedging exclusion does not extend to a security-based swap position 
that hedges another swap or security-based swap position, unless that 
other position itself is held for the purposing of hedging or 
mitigating commercial risk.\1020\ This provision allows the first major 
participant analysis to exclude a person's purchase of credit 
protection to help address the risk of default by a counterparty in 
connection with an interest rate swap, foreign exchange swap or other 
swap or security-based swap that the person has entered into for the 
purpose of hedging or mitigating commercial risk.
---------------------------------------------------------------------------

    \1020\ Exchange Act rule 3a67-4(b)(2).
---------------------------------------------------------------------------

d. Procedural Conditions
    In contrast to the proposal, the final rule does not incorporate 
procedural requirements in connection with the hedging exclusion from 
the first test of the major security-based swap participant 
definition.\1021\ In making this change, we have been mindful of 
concerns that have been expressed that such procedural requirements 
would lead to undue costs in connection with hedging activity.\1022\
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    \1021\ Those proposed provisions would have conditioned the 
exclusion on the person identifying and documenting the underlying 
risks, establishing and documenting a method of assessing the hedge 
effectiveness, and regularly assessing the effectiveness of the 
security-based swap as a hedge. See proposed Exchange Act rule 3a67-
4(c).
    \1022\ See, e.g., letter from FSR I.
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    We understand, however, that many entities engaging in legitimate 
hedging of commercial risks do, as a matter of business practice, 
identify and document those risks and evaluate the effectiveness of the 
hedge from time to time. The presence of supporting documentation 
consistent with such procedures would help support a person's assertion 
that a security-based swap position should be excluded from the first 
major participant analysis, should the legitimacy of the exclusion 
become an issue.
    Also, although we are not requiring the entity to monitor the 
effectiveness of the hedge over time, that absence of this requirement 
does not change the underlying need for a security-based swap position 
to be economically appropriate for the commercial risks facing the 
entity to be excluded from the first major participant definition. 
Thus, for example, if a person's underlying commercial risk materially 
diminishes or is eliminated over time, a security-based swap position 
that may have been economically appropriate to the reduction of risk at 
inception at a certain point in time may, depending on the facts and 
circumstances, no longer be reasonably included within the 
exclusion.\1023\ As part of the reports required in connection with 
possible future changes to the major participant definitions,\1024\ the 
staffs are directed to address whether the continued availability of 
the hedging exclusion should be conditioned on assessment of hedging 
effectiveness and related documentation.
---------------------------------------------------------------------------

    \1023\ Factors that may be relevant to determining whether a 
security-based swap position is economically appropriate to the 
reduction of risk may include the costs associated with terminating 
or reducing that position.
    \1024\ See part V, infra.
---------------------------------------------------------------------------

D. Exclusion for Positions Held by Certain Plans Defined Under ERISA

1. Proposed Approach
    The first statutory test of the major participant definitions 
excludes swap and security-based swap positions that are ``maintained'' 
by any employee benefit plan as defined in sections 3(3) \1025\ and 
3(32) \1026\ of ERISA ``for the primary purpose of hedging or 
mitigating any risk directly associated with the operation of the 
plan.'' \1027\
---------------------------------------------------------------------------

    \1025\ Section 3(3) of Title I of ERISA defines the term 
``employee benefit plan'' to include ``an employee welfare benefit 
plan or an employee pension benefit plan or a plan which is both an 
employee welfare benefit plan and an employee pension benefit 
plan.'' See 29 U.S.C. 1002(3). The terms ``employee welfare benefit 
plan'' and ``employee pension benefit plan'' are further defined in 
Sections 3(1) and (2) of ERISA. See 29 U.S.C. 1002(1) and (2).
    \1026\ Section 3(32) of Title I of ERISA defines the term 
``governmental plan'' to mean a plan that the U.S. government, state 
or political subdivision, or agencies and instrumentalities 
establish or maintain for its employees, as well as plans governed 
by the Railroad Retirement Acts of 1935 and 1937, plans of 
international organizations that are exempt from taxation pursuant 
to the International Organizations Immunities Act, and certain plans 
established and maintained by tribal governments or their 
subdivisions, agencies or instrumentalities. See 29 U.S.C. 1002(32).
    \1027\ CEA section 1a(33)(A)(i)(I); Exchange Act section 
3(a)(67)(A)(ii)(I).
---------------------------------------------------------------------------

    The proposed rules incorporated that statutory exclusion without 
additional interpretation or refinement.\1028\ In the Proposing 
Release, moreover, the Commissions expressed the preliminary view that 
we did not ``believe that it is necessary to propose a rule to further 
define the scope of this exclusion.'' We further noted that the 
exclusion for those plans identified in the statutory definition is not 
strictly limited to ``commercial'' risk, and that this may be construed 
to mean that hedging by those ERISA plans should be broadly excluded. 
The Commissions also solicited comment as to whether this exclusion 
should be made available to additional types of entities.\1029\
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    \1028\ See proposed CFTC Regulation Sec.  1.3(hhh)(1)(ii)(A); 
proposed Exchange Act rule 3a67-1(a)(2)(i).
    \1029\ See Proposing Release, 75 FR at 80201, supra.
---------------------------------------------------------------------------

2. Commenters' Views
    Some commenters requested clarification that the ERISA hedging 
exclusion is broader than the commercial risk hedging exclusion, and 
that the ERISA hedging exclusion can encompass positions that are not 
solely for hedging purposes.\1030\ One

[[Page 30681]]

commenter cautioned against interpreting the ERISA hedging exclusion 
broadly.\1031\
---------------------------------------------------------------------------

    \1030\ See letters from BlackRock I (noting that the ERISA 
hedging exclusion applies to positions with the ``primary purpose'' 
of hedging, ``which suggests plans may exclude swap positions even 
if they serve a purpose in addition to hedging or mitigating''), the 
ERISA Industry Committee (``ERISA Industry Committee'') (stating 
that if ERISA Title I plans are not excluded from the major 
participant definition, the rules should clarify that the ERISA 
hedging exclusion is broader than the commercial hedging exclusion 
and encompasses a variety of risks associated with the value of a 
plan's assets or the measures of its liabilities; also stating that 
the ERISA exclusion should not omit positions in the nature of 
investing, and particularly discussing the use of swaps to provide 
diversification), ABC/CIEBA (expressing the view that the ERISA 
hedging exclusion extends beyond ``traditional'' hedges, and stating 
that the exclusion should encompass swaps with purposes in addition 
to hedging, and that the exclusion should encompass positions for 
the purpose of rebalancing, diversification and gaining asset class 
exposure) and CalSTRS I (requesting that regulations provide for an 
ERISA hedging exclusion that is broader than the commercial risk 
hedging exclusion, and that encompasses positions for the purpose of 
investing).
    One commenter alluded to the incorporation of efficient 
portfolio theory principles within the exception. See letter from 
Russell Investments.
    \1031\ See letter from AFSCME (stating that while the statutory 
exclusion may encompass swaps to mitigate currency risk of cash 
market investments, the exclusion should not encompass swaps used 
for investment purposes such as to gain asset class exposure or 
avoid transaction costs associated with a direct investment).
---------------------------------------------------------------------------

    Commenters also requested that the Commissions clarify that the 
ERISA hedging exclusion applies to positions maintained by trusts that 
hold plan assets,\1032\ or by pooled funds.\1033\ One commenter, in 
contrast, stated that the exclusion should not be available to trusts 
holding plan assets.\1034\
---------------------------------------------------------------------------

    \1032\ See letters from ERISA Industry Committee (stating that 
the rules should provide that the exclusion applies to positions 
maintained by any trust holding plan assets) and ABC/CIEBA (stating 
that the rules should provide the relevant entity for purposes of 
the exclusion is the counterparty to the swap, further stating that 
if a trust enters into a swap as a counterparty, it is the trust 
that should be tested as a possible major participant, even if the 
trust also holds non-ERISA assets).
    \1033\ See letters from BlackRock I (discussing how plan 
fiduciaries may invest plan assets ``in pooled investment vehicles 
such as registered investment companies, private funds and bank 
maintained collective trust funds,'' and stating that not including 
pooled funds within the exclusion would limit plans' ability to 
avail themselves of the efficiencies associated with pooling), ERISA 
Industry Committee (stating that there is ``no reason'' why the 
exception should not also extend to position held by a pooled 
investment trust on behalf of multiple employee benefit plans) and 
ABC/CIEBA (stating that if a pool within a trust is the 
counterparty, it is that pool that should be tested as a possible 
major participant, and noting Department of Labor regulations 
providing that a collective investment vehicle would be viewed as 
holding plan assets if the vehicle is not a registered investment 
company, and plans hold at least 25 percent of the interests in the 
vehicle).
    \1034\ See letter from AFSCME (stating that ``it is important to 
limit the exemption to plans themselves, not to entities holding 
`plan assets' '').
---------------------------------------------------------------------------

    One commenter stated that the exception should be extended to all 
public pension plans,\1035\ and one commenter particularly took the 
view that the exclusion should be available to church plans.\1036\ Some 
commenters stated that the exclusion should be available to non-U.S. 
plans.\1037\
---------------------------------------------------------------------------

    \1035\ See letter from Russell Investments.
    \1036\ See letter from Church Alliance (stating that the 
exclusion also should encompass church plans defined in paragraph 
3(33) of ERISA, on the grounds that Congress would not have intended 
to discriminate against church plans, and that church plans are 
considered ``special entities'' that should be the beneficiaries of 
extra protection).
    \1037\ See letters from ABC/CIEBA, APG and BTPS.
     The Commissions intend to issue separate releases that address 
the application of the major participant definitions, and Title VII 
generally, to non-U.S. entities.
---------------------------------------------------------------------------

3. Final Rules
    Consistent with the position expressed in the Proposing Release, 
the Commissions interpret the ERISA hedging exclusion in the first 
statutory major participant test to be broader than that test's 
commercial risk hedging exclusion. This reflects the facts that the 
ERISA hedging exclusion is not limited to ``commercial'' risk, and that 
the ERISA hedging exclusion addresses positions that have a ``primary'' 
hedging purpose (which suggests that those positions may have a 
secondary non-hedging purpose).
a. Types of Excluded Hedging Activities
    The Commissions are mindful of commenters' request for additional 
clarity regarding the scope of the ERISA hedging exclusion. In that 
regard, we note that we generally would expect swap or security-based 
swap positions to have a primary purpose of hedging or mitigating risks 
directly associated with the operation of the types of plans identified 
in the statutory definition--and hence eligible for the exclusion--when 
those positions are intended to reduce disruptions or costs in 
connection with, among others, the anticipated inflows or outflows of 
plan assets, interest rate risk, and changes in portfolio management or 
strategies.
    Conversely, we believe that certain other types of positions would 
less likely have the primary purpose of hedging or mitigating risks 
directly associated with the operation of the plan, as anticipated by 
the statutory definition.\1038\
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    \1038\ For example, we do not foresee that the use of a swap or 
security-based swap position to replicate exposure to a foreign 
market or to a particular asset class to be for the primary purpose 
of hedging risks directly associated with the operation of these 
types of plans. While we recognize that an asset manager may 
perceive benefits in using swaps or security-based swaps in that 
manner, it also is necessary to give effect to the statutory 
language limiting the exclusion to positions that have a ``primary 
purpose'' of hedging risks ``directly associated'' with the 
``operations'' of a plan. We recognize that lack of diversification 
may be viewed as a risk, but it is not an ``operations'' risk.
---------------------------------------------------------------------------

b. Availability of Exclusion
    The Commissions recognize the significance of comments that these 
plans may use separate entities such as trusts or pooled vehicles to 
hold plan assets, and that the exclusion should not be interpreted in a 
way that deters the use of those vehicles. We believe that the same 
principles that underpin the exclusion for hedging positions directly 
entered into by the types of plans identified in the statutory 
definition also warrant making the exclusion applicable to plan hedging 
positions that are entered into by those other parties that hold assets 
of those types of plans. Otherwise, the major participant analysis 
would have the effect of deterring efficiencies in plan operations for 
no apparent regulatory purpose.
    Accordingly, the Commissions interpret the meaning of the term 
``maintain''--in the context of the statutory provision that the swap 
or security-based swap position be ``maintained by'' an employee 
benefit plan--not only to include positions in which the plan is a 
counterparty, but also to include positions in which the counterparty 
is a trust or pooled vehicle that holds plan assets. Thus, for example, 
the exclusion would be available to trusts or pooled vehicles that 
solely hold assets of the types of plans identified in the statutory 
definition.\1039\ The exclusion further may be available to entities 
that hold such plan assets in conjunction with other assets, but only 
to the extent that the entity enters into swap or security-based swap 
positions for the purpose of hedging risks associated with the plan 
assets. The exclusion does not extend to positions that hedge risks of 
other assets, even if those are managed in conjunction with plan 
assets.\1040\
---------------------------------------------------------------------------

    \1039\ This interpretive guidance is intended solely in the 
context of the interpretation of the first test of the statutory 
major participant definitions. The guidance is not based on or 
relevant to the interpretation of other regulations relating to 
ERISA.
    \1040\ As appropriate, for purposes of the first major 
participant analysis an entity may need to allocate the exposure 
associated with swap or security-based swap positions between the 
amount that is attributable to plan assets (and hence eligible for 
exclusion) and the amount that is attributable to other assets.
---------------------------------------------------------------------------

    The Commissions also are mindful of commenter concerns that the 
exclusion should explicitly be made available to other plans, such as 
church plans and non-U.S. plans.\1041\ In this regard, the Commissions 
believe that the boundaries of the exclusion are set by the explicit 
statutory language, which states that it applies to any employee 
benefit plan as defined in paragraphs (3) and (32) of section 3 of 
ERISA. This reference is disjunctive--that is, a plan is eligible for 
the exclusion if it is within the scope of paragraph (3) (which refers 
to employee benefit plans)

[[Page 30682]]

or of paragraph (32) (which applies to government plans). Accordingly, 
the scope of the cited definitions in paragraphs (3) and (32) should be 
determined in accordance with all law that applies in the 
interpretation of ERISA.\1042\
---------------------------------------------------------------------------

    \1041\ As previously noted, the Commissions intend to issue 
separate releases that address the application of the major 
participant definitions, and Title VII generally, to non-U.S. 
entities.
    \1042\ We are not taking a view as to whether church plans or 
non-U.S. plans constitute employee benefit plans as defined by 
section 3(3) of ERISA.
---------------------------------------------------------------------------

E. ``Substantial Counterparty Exposure''

1. Proposed Approach
    The major participant definitions' second statutory test 
encompasses persons whose outstanding swaps or security-based swaps 
``create substantial counterparty exposure that could have serious 
adverse effects on the financial stability of the U.S. banking system 
or financial markets.'' \1043\ In contrast to those definitions' first 
statutory test, which relates to persons with a ``substantial 
position'' in swaps or security-based swaps in a ``major'' 
category,\1044\ this second test is not limited to positions in a 
single category. Also, unlike the first test, the second statutory test 
does not explicitly exclude certain commercial risk hedging positions 
or ERISA hedging positions.
---------------------------------------------------------------------------

    \1043\ CEA section 1a(33)(A)(ii); Exchange Act section 
3(a)(67)(A)(ii)(II).
    \1044\ CEA section 1a(33)(A)(i); Exchange Act section 
3(a)(67)(A)(ii)(I).
---------------------------------------------------------------------------

    For the ``major swap participant'' definition, the Proposing 
Release provided that a person's swap positions pose ``substantial 
counterparty exposure'' if those positions present a daily average 
current uncollateralized exposure of $5 billion or more, or present 
daily average current uncollateralized exposure plus potential future 
exposure of $8 billion or more.\1045\ For the ``major security-based 
swap'' definition, the proposal provided that a person's security-based 
swap positions pose ``substantial counterparty exposure'' if those 
positions present daily average current uncollateralized exposure of $2 
billion or more, or present daily average current uncollateralized 
exposure plus potential future exposure of $4 billion or more.\1046\
---------------------------------------------------------------------------

    \1045\ See proposed CFTC Regulation Sec.  1.3(lll).
    \1046\ See proposed Exchange Act rule 3a67-5.
---------------------------------------------------------------------------

    Under the proposal, those measures would be calculated in the same 
manner as would be used for the first major participant test, except 
that the ``substantial counterparty exposure'' analysis would consider 
all of a person's swap or security-based swap positions rather than 
solely considering positions in a particular ``major'' category, and 
that the ``substantial counterparty exposure'' analysis would not 
exclude positions to hedge commercial risks or ERISA plan risks.
    The proposed ``substantial counterparty exposure'' thresholds were 
set higher than the proposed ``substantial position'' thresholds in 
part to reflect the fact that the former test accounts for a person's 
positions across four major swap categories or two major security-based 
swap categories.\1047\ The proposed ``substantial counterparty 
exposure'' thresholds also reflected the fact that this second test 
(unlike the first major participant test) encompasses certain hedging 
positions that, in general, we would expect to pose a lesser degree of 
risk to counterparties and the markets.
---------------------------------------------------------------------------

    \1047\ Thus, these proposed thresholds in part would account for 
a person that has large positions in more than one major category of 
swaps or security-based swaps, but that does not meet the 
substantial position threshold for any single category of swaps or 
security-based swaps.
---------------------------------------------------------------------------

2. Commenters' Views

a. General Comments
    In light of the similarity between the proposed tests, a number of 
the concerns that commenters expressed with regard to the proposed 
``substantial position'' definition also apply to the proposed 
``substantial counterparty exposure'' definition. In addition, some 
commenters took the view that the proposed ``substantial counterparty 
exposure'' thresholds were too low,\1048\ with several of those 
commenters stating that the thresholds should be raised to a level that 
reflects systemic risk.\1049\ A few commenters took the view that the 
proposed thresholds were too high.\1050\ Some commenters generally 
supported the approach to the definition of ``substantial counterparty 
exposure'' proposed by the Commissions.\1051\
---------------------------------------------------------------------------

    \1048\ See, e.g., letters from ATAA (supporting higher 
thresholds to measure substantial counterparty exposure), CCMR I 
(suggesting that the thresholds be set high initially, capturing 
only a few entities until the Commissions are able to collect and 
analyze data that supports lowering the thresholds), BG LNG I 
(stating that proposed threshold should be increased substantially), 
WGCEF II (stating that the Commissions should adopt substantial 
position and substantial counterparty exposure tests that account 
for current conditions in swap markets), ABC/CIEBA (requesting that 
the Commissions raise the thresholds to better target persons 
creating or causing systemic risk as set forth in the a major swap 
participant and major security-based swap participant definitions), 
BlackRock I (stating that proposed thresholds for the substantial 
counterparty exposure test are too low so that they could encompass 
market participants that do not have systemically important swap 
positions) and ACLI (supporting increasing the thresholds under the 
CEA definition to $7 billion in daily average aggregate 
uncollateralized outward exposure or $14 billion in daily average 
aggregate uncollateralized outward exposure plus daily average 
aggregate potential outward exposure), and meeting with MFA on 
February 14, 2011 (requesting that the Commissions raise the 
thresholds for measuring substantial counterparty exposure until the 
Commissions conduct a market survey to determine how many entities 
would need to perform the calculations regularly and whether those 
entities have characteristics capable of causing systemic risk).
    \1049\ See letters from ABC/CIEBA, BlackRock I, ISDA I, WGCEF 
II, and meeting with MFA on February 14, 2011.
    \1050\ See letters from Greenberger (in connection with 
thresholds relating to substantial position) and AFR (Commissions 
should define a major swap participant or major security-based swap 
participant as any person that maintains $500 million in daily 
average, uncollateralized exposure for any category of swaps other 
than rate swaps, for which the daily average could be up to $1.5 
billion).
    \1051\ See, e.g., letters from ATAA (supporting the proposed 
definitions of ``substantial position'' and ``substantial 
counterparty exposure,'' with the caveat that higher thresholds be 
used to measure ``substantial counterparty exposure''), Dominion 
Resources (supporting the Commissions proposed definitions of 
``substantial position'' and ``substantial counterparty exposure''), 
Fidelity (threshold levels set at appropriate levels but should be 
periodically reviewed for adjustment), and Kraft (thresholds as 
proposed are appropriate).
---------------------------------------------------------------------------

    Some commenters took the view that the ``substantial counterparty 
exposure'' test should focus on the size of an entity's exposure to 
specific counterparties.\1052\ Several commenters suggested that the 
thresholds should be adjusted over time for inflation and changes in 
the swap and security-based swap markets.\1053\ One commenter urged 
that the analysis consider the interconnectedness of the entity.\1054\
---------------------------------------------------------------------------

    \1052\ See letters from MFA (stating that the calculation of 
substantial counterparty exposure should measure the exposure that a 
person has to each individual counterparty that is a systemically 
important financial institution excluding cleared swap transactions) 
and CCMR I (stating that the ``substantial counterparty exposure'' 
and ``substantial position'' thresholds should apply to the largest 
exposure that a person has to another market participant, with any 
aggregate test being set at a higher level).
    \1053\ See letters from CDEU, COPE I, Fidelity, ISDA I, and MFA 
I.
    \1054\ See letter from CDEU.
---------------------------------------------------------------------------

    One commenter addressed the application of the second major 
participant test to insurance companies, arguing that substantial 
counterparty exposure should be decided by the FSOC in consultation 
with the relevant state insurance commissioner, and that hedges should 
be excluded from the calculation for insurers.\1055\
---------------------------------------------------------------------------

    \1055\ See letter from NAIC (stating that the Commissions should 
defer to FSOC when considering the designation of insurers under the 
second test, and should exclude from the analysis swaps and 
security-based swap positions used for hedging provided that such 
positions are subject to state investment laws and ongoing 
monitoring by a state insurance regulatory authority).
---------------------------------------------------------------------------

b. Lack of Exclusion for Hedging Positions
    A number of commenters took the view that the second major 
participant

[[Page 30683]]

test should exclude commercial risk hedging positions from the 
analysis.\1056\ Some commenters also supported excluding ERISA hedging 
positions from the analysis.\1057\ One commenter opposed any such 
exclusions for hedging positions.\1058\
---------------------------------------------------------------------------

    \1056\ See letters from SIFMA AMG II (noting that the 
Commissions have suggested that hedging positions may not raise the 
same degree of risk as other swap positions), NAIC (supporting 
exclusion of commercial risk hedging positions subject to state 
investment laws and ongoing monitoring by state insurance 
regulators), AIA (supporting hedging exclusion to avoid capturing 
entities such as property-casualty insurers), CDEU (suggesting that 
inclusion of hedging positions is inconsistent with goal of 
mitigating systemic risk), APG (supporting exclusion of positions 
held by regulated foreign pension plans), and NRG Energy (suggesting 
that a lack of an exclusion would cause end-users to curtail hedging 
activities and increase systemic risk); see also letter from AIMA I 
(supporting an exemption or discount if the swap transaction is 
cleared, an off-set for the value and quality of any collateral, and 
consideration of the directional moves of particular swap 
contracts).
    \1057\ See letters from ABC/CIEBA and SIFMA AMG II. One 
commenter further requested that ERISA Title I plans be explicitly 
excluded from the second test. See letter from ERISA Industry 
Committee. Another commenter requested an exclusion for ERISA plans 
generally. See letter from CalSTRS I.
    \1058\ See letter from Better Markets I (stating that excluding 
hedging positions would be inappropriate because the Dodd-Frank Act 
did not provide for any such exclusion in the second test, hedge 
positions may still contribute to counterparty exposure, and the 
thresholds already reflect the lower level of risk posed by hedge 
positions).
---------------------------------------------------------------------------

3. Final Rules
    Consistent with the Proposing Release, the final rules defining the 
term ``substantial counterparty exposure'' generally are based on the 
same current uncollateralized exposure and potential future exposure 
tests that are used to identify a ``substantial position.'' \1059\ As 
with the Proposing Release, moreover, the ``substantial counterparty 
exposure'' analysis addresses all of a person's swap or security-based 
swap positions (rather than being limited to positions in a ``major'' 
category), and does not exclude hedging positions.\1060\ The final 
rules also incorporate the quantitative thresholds that were proposed 
for those tests.\1061\
---------------------------------------------------------------------------

    \1059\ Accordingly, changes that the final rules made to the 
proposal with regard to the ``substantial position'' definition, see 
part IV.B.3, supra, also are carried over to the definition of 
``substantial counterparty exposure.''
    \1060\ See CFTC Regulation Sec.  1.3(lll); Exchange Act rule 
3a67-5.
    \1061\ Accordingly, consistent with the proposal, the threshold 
for the ``major swap participant'' definition is $5 billion or more 
in daily average current uncollateralized exposure, or $8 billion or 
more in daily average uncollateralized exposure plus potential 
future exposure. The threshold for the ``major security-based swap 
participant'' is $2 billion or more in daily average current 
uncollateralized exposure, or $4 billion or more in daily average 
uncollateralized exposure plus potential future exposure.
---------------------------------------------------------------------------

    In adopting these final rules we have considered commenter views 
that the ``substantial counterparty exposure'' analysis should exclude 
certain commercial risk and ERISA hedging positions. We nonetheless 
believe that the structure of the major participant definitions--
particularly the fact that those definitions specifically exclude 
hedging positions from the first statutory test but not from the second 
test--necessitates the conclusion that the second test not exclude 
those hedging positions.
    We also have considered commenter views that the ``substantial 
counterparty exposure'' analysis should account for the maximum 
exposure that a person poses to any single counterparty. We nonetheless 
believe that the statutory test--particularly its focus on serious 
adverse effects on financial stability or financial markets--more 
appropriately is addressed by measures of the aggregate counterparty 
risk that an entity poses through its swap or security-based swap 
positions. Also, consistent with our views regarding the ``substantial 
position'' definition, we believe that the ``substantial counterparty 
exposure'' analysis appropriately is addressed via objective and 
quantitative criteria (rather than a multi-tier approach), and 
appropriately takes into account current uncollateralized exposure and 
potential future exposure.
    Consistent with the Proposing Release, the thresholds to implement 
the second major participant test are higher than the corresponding 
thresholds for the first major participant test. These differences 
reflect the fact that the second test encompasses four ``major'' 
categories of swaps or two ``major'' categories of security-based 
swaps, as well as the fact that this second test does not exclude 
hedging positions that would appear to pose a lesser degree of 
counterparty risk than non-hedging positions.
    While we are mindful of commenter views that the proposed 
``substantial counterparty exposure'' thresholds were too low,\1062\ we 
believe that the same principles that support the proposed standards in 
the context of the ``substantial position'' definition also support the 
proposed standards for this second test. As with the ``substantial 
position'' analysis, the ``substantial counterparty exposure'' analysis 
seeks to reflect a standard that encompasses large market participants 
before the counterparty risk posed by their swap and security-based 
swap positions present too large a problem, as well as the financial 
system's ability to absorb losses of a particular size, and the need to 
account for the possibility that multiple market participants may fail 
close in time.\1063\ Commenters have not presented empirical or 
analytical evidence in support of a different standard. In the future, 
the Commissions may review and potentially adjust these thresholds to 
reflect evolving market structures and additional data.
---------------------------------------------------------------------------

    \1062\ See notes 1051 and 1052, supra.
    \1063\ As with the ``substantial position'' analysis, our 
decision to adopt these thresholds is informed by events related to 
AIG Financial Products and LTCM. See part IV.B.3.d, supra.
---------------------------------------------------------------------------

F. ``Highly Leveraged'' and ``Financial Entity''

1. Proposed Approach
    The third statutory test of the major participant definitions 
encompasses any non-dealer that: (i) Is a ``financial entity'' (other 
than one that is ``subject to capital requirements established by an 
appropriate Federal banking agency''), (ii) is ``highly leveraged 
relative to the amount of capital it holds,'' and (iii) maintains a 
``substantial position'' in any ``major'' category of swaps or 
security-based swaps.\1064\ In contrast to the first statutory test--
which also encompasses persons with a ``substantial position'' in swaps 
or security-based swaps in a ``major'' category--this third test does 
not exclude positions that hedge commercial risk or ERISA risks.
---------------------------------------------------------------------------

    \1064\ CEA section 1a(33); Exchange Act section 3(a)(67).
---------------------------------------------------------------------------

a. ``Financial Entity''
    The Proposing Release defined the term ``financial entity'' for 
purposes of the major participant definition in the same general manner 
as Title VII defines that term for purposes of the end-user exemption 
from mandatory clearing,\1065\ but with certain technical changes to 
avoid circularity.\1066\
---------------------------------------------------------------------------

    \1065\ CEA section 2(h)(7); Exchange Act section 3C(g)(3)(A).
    \1066\ See proposed CFTC Regulation Sec.  1.3(mmm)(1); proposed 
Exchange Act rule 3a67-6(a). For both sets of rules, the ``financial 
entity'' definition would include any: commodity pool (as defined in 
section 1a(10) of the CEA); private fund (as defined in section 
202(a) of the Investment Advisers Act of 1940); employee benefit 
plan as defined in paragraphs (3) and (32) of section 3 of ERISA; 
and person predominantly engaged in activities that are in the 
business of banking or financial in nature (as defined in section 
4(k) of the Bank Holding Company Act of 1956).
     To avoid circularity, the use of the term ``financial entity'' 
in the context of the ``major swap participant'' definition also 
would encompass any ``security-based swap dealer'' and ``major 
security-based swap participant,'' but would not include any ``swap 
dealer'' or ``major swap participant'' (even though the latter terms 
also are found in the ``financial entity'' definition used for 
purposes of the end-user clearing exception). See proposed CFTC 
Regulation Sec.  1.3(mmm)(1). In the context of the ``major 
security-based swap participant'' definition, the term ``financial 
entity'' also would encompass any ``swap dealer'' or ``major swap 
participant,'' but would not include any ``security-based swap 
dealer'' and ``major security-based swap participant.'' See proposed 
Exchange Act rule 3a67-6(a).

---------------------------------------------------------------------------

[[Page 30684]]

b. ``Highly Leveraged''
    The Proposing Release set forth two alternative approaches for 
determining whether a particular entity would be deemed ``highly 
leveraged.'' \1067\ Under one approach, an entity would be ``highly 
leveraged'' if the ratio of its liabilities to equity exceeded 8 to 1; 
this proposed alternative reflected the fact that the third statutory 
major participant test excludes certain types of entities.\1068\ Under 
the alternative approach, an entity would be ``highly leveraged'' if 
the ratio of its liabilities to equity exceeded 15 to 1; this proposed 
alternative reflected standards for maximum leverage in certain 
circumstances found in Title I of the Dodd-Frank Act.\1069\ The 
proposal further provided that leverage would be measured at the close 
of business on the last business day of the applicable fiscal quarter, 
and that liabilities and equity would be determined in accordance with 
U.S. generally accepted accounting principles (``GAAP'').\1070\
---------------------------------------------------------------------------

    \1067\ See proposed CFTC Regulation Sec.  1.3(mmm)(2); proposed 
Exchange Act rule 3a67-6(b).
    \1068\ The Proposing Release particularly noted that the third 
statutory major participant test excludes financial institutions 
subject to capital requirements set by Federal banking agencies, and 
recognized the possibility those entities were excluded based on the 
presumption that they generally are highly leveraged. The Proposing 
Release noted, based on analysis of financial statements, that it 
appears that those institutions generally have a leverage ratio of 
10 to 1, and that this suggested that the ``highly leveraged'' 
threshold would have to be lower for those institutions to 
potentially be subject to the third test. See Proposing Release, 75 
FR at 80199.
    \1069\ The Proposing Release noted that Title I provides that 
the Board must require a bank holding company with total 
consolidated assets equal to or greater than $50 billion, or a 
nonbank financial company supervised by the Board, to maintain a 
debt to equity ratio of no more than 15 to 1 if the FSOC determines 
``that such company poses a grave threat to the financial stability 
of the United States and that the imposition of such requirement is 
necessary to mitigate the risk that such company poses to the 
financial stability of the United States.'' See Dodd-Frank Act 
section 165(j)(1). The Proposing Release further noted that this 15 
to 1 ratio may represent an upper limit to acceptable leverage and 
that the major participant analysis should use a lower threshold, 
or, alternatively, that the 15 to 1 ratio provides an appropriate 
test of whether an entity poses the systemic risk concerns 
implicated by the major participant definitions. See Proposing 
Release, 75 FR at 80199.
    \1070\ The Proposing Release also stated that entities that file 
quarterly reports on Form 10-Q and annual reports on Form 10-K with 
the SEC would determine their total liabilities and equity based on 
the financial statements included with such filings while all other 
entities would calculate the value of total liabilities and equity 
consistent with the proper application of U.S. GAAP. See id.
---------------------------------------------------------------------------

    In proposing these alternative standards for identifying ``highly 
leveraged'' entities, the Commissions recognized that traditional 
balance sheet measures of leverage are limited as tools for evaluating 
an entity's ability to meet its obligations--in part because such 
measures do not directly account for potential risks posed by specific 
instruments held on the balance sheet, or for financial instruments 
held off of the balance sheet. At the same time, the Commissions 
preliminarily concluded that it was not necessary to use more complex 
measures of risk-adjusted leverage for these purposes, in part because 
the third test's ``substantial position'' analysis already accounts for 
such risks. The Commissions also noted the costs that would be 
associated with causing entities to engage in complex calculations of 
risk-adjusted leverage.\1071\
---------------------------------------------------------------------------

    \1071\ See id. at 80198-99.
---------------------------------------------------------------------------

    The Proposing Release solicited comment on a variety of issues 
related to the proposed leverage ratios, including the relative merits 
of the alternative 8 to 1 and 15 to 1 standards, and potential 
alternative standards.\1072\
---------------------------------------------------------------------------

    \1072\ See id. at 80199-200.
---------------------------------------------------------------------------

2. Commenters' Views
a. ``Financial Entity''
    Some commenters recommended that certain types of entities should 
be excluded from the definition of ``financial entity,'' on the grounds 
that those types of entities are more appropriately treated as non-
financial end users of swaps for purposes of the Dodd-Frank Act.\1073\ 
Commenters specifically suggested that the ``financial entity'' 
definition exclude: (i) Centralized hedging and treasury subsidiaries 
in corporate groups; \1074\ (ii) employee benefit plans; \1075\ and 
(iii) cooperative structures.\1076\ Commenters also requested 
clarification as to which entities would not be ``subject to capital 
requirements established by an appropriate Federal banking agency,'' 
and hence not subject to the third statutory test.\1077\ In addition, 
commenters addressed the application of the ``financial entity'' 
definition to non-U.S. persons.\1078\
---------------------------------------------------------------------------

    \1073\ See, e.g., letters from CalSTRS dated June 15, 2011 
(``CalSTRS II''), Kraft, Newedge, NRU CFC I and Philip Morris.
    \1074\ See letters from Kraft and Philip Morris.
    \1075\ See letter from CalSTRS II (asserting that there is not a 
basis to treat ERISA plans as ``financial entities'' for purposes of 
the major participant definitions solely to maintain consistency 
with an ``anomalous'' statutory provision).
    \1076\ See letter from NRU CFC I.
    \1077\ See letters from ACLI (requesting confirmation that the 
exclusion from the third statutory test extends to entities subject 
to bank or financial holding companies, entities deemed systemically 
important under Title I of the Dodd-Frank Act, and any other persons 
subject to capital regulation established by a Federal banking 
regulator) and MetLife (requesting clarification that the exclusion 
extends to persons subject to regulation and capital requirements on 
a consolidated basis under federal banking law, and persons that are 
individually or systemically important financial institutions under 
Title I).
    \1078\ One commenter took the view that non-U.S. governments and 
their agencies should be excluded from the ``financial entity'' 
definition for purposes of the major participant definition and the 
Title VII end-user exemption from mandatory clearing. See letter 
from Milbank. On the other hand, one commenter favored the inclusion 
of non-U.S. governments in the ``financial entity'' definition. See 
meeting with Duffie on February 2, 2011 (suggesting that foreign 
governments and other foreign jurisdictions, such as municipalities, 
should be treated as ``financial entities'' for purposes of the 
major swap participant definition and other requirements under the 
Dodd-Frank Act on the grounds that such entities could become 
sources of systemic risk).
    The Commissions intend to issue separate releases addressing the 
application of Title VII to non-U.S. persons.
---------------------------------------------------------------------------

b. ``Highly Leveraged''
    A number of commenters supported the proposed 15 to 1 alternative 
leverage ratio over the 8 to 1 alternative, with some commenters 
further suggesting that the final rule should set a leverage ratio 
higher than 15 to 1, or that the ratio should be reconsidered when more 
information is available regarding leverage among swap users.\1079\ One 
commenter supported the proposed 8 to 1 alternative,\1080\ and one 
commenter

[[Page 30685]]

suggested that the final rule should set a leverage ratio lower than 8 
to 1.\1081\ One commenter suggested a ratio of 12 to 1, consistent with 
certain capital requirements.\1082\
---------------------------------------------------------------------------

    \1079\ See letters from ISDA I (suggesting that the wide use of 
leverage by financial institutions means that the definition should 
capture only entities with the ``very highest'' leverage ratios, and 
that the 15 to 1 ratio should be viewed as a floor for identifying 
highly leveraged entities given that it is used in Title I to 
address entities that have already been determined to pose a ``grave 
threat'' to the stability of the U.S. financial system), MFA I 
(stating that 15 to 1 is the more appropriate of the two choices, 
and that the Commissions could subsequently adjust the ratio after 
receiving market data on the use of leverage), AIMA I (encouraging 
the Commissions to adopt the 15 to 1 leverage threshold until an 
assessment of the impact of the major participant definitions can be 
completed); Amex (supporting the use of the 15 to 1 ratio, noting 
that it is consistent with the maximum leverage allowed to entities 
designated as a grave threat to financial stability under Title I of 
the Dodd-Frank Act) and CDEU (recommending use of the 15 to 1 
standard, based on its consistency with the leverage limit in Title 
I of the Dodd-Frank Act for entities posing a grave threat to the 
United States financial system and that ``it would be unreasonable 
to propose a stricter leverage threshold under the major participant 
test for nonbank financial end-users,'' and expressing concern that 
entities comfortably falling under the 8 to 1 ratio could 
unexpectedly exceed this threshold during periods of market stress 
and that sudden designation as a major participant ``could seriously 
hinder a company from meeting its obligations'').
    \1080\ See letter from Better Markets I (stating that the 8 to 1 
threshold would better serve the purposes of the Dodd-Frank Act by 
``ensuring that more, rather than fewer, financial entities are 
covered by the risk mitigation and business conduct standards that 
Congress established'' for major participants, and that use of the 
15 to 1 leverage ratio from Title I of the Dodd-Frank Act is 
inappropriate because the Title I ratio is used for the ``relatively 
draconian'' purpose of imposing leverage limits, while this ratio 
would be used for ``the more modest purpose of imposing registration 
requirements'').
    \1081\ See letter from Greenberger (suggesting that the leverage 
test should be set at a ratio that is lower than either of the two 
proposed levels).
    \1082\ See meeting with MFA on February 14, 2011 (MFA 
representatives making point that ``highly leveraged'' should be 
defined in coordination with other regulations under the Dodd-Frank 
Act, and for example, a requirement that banks hold 8% capital 
implies a leverage ratio of approximately 12:1).
---------------------------------------------------------------------------

    Commenters also suggested a variety of methods and adjustments for 
calculating leverage ratios.\1083\
---------------------------------------------------------------------------

    \1083\ The suggested adjustments were: to measure the ratio of 
net current credit exposure to Tier I capital, in a manner similar 
to that used by bank regulators (see letter from Greenberger); to 
include as liabilities all unfunded exposures on swaps, both current 
and potential (see letter from Better Markets I); and to account for 
the different risk levels of various classes of assets and 
liabilities and for other factors affecting a person's riskiness 
(see letters from CCMR I and MFA I).
---------------------------------------------------------------------------

    Some commenters further suggested that specific leverage tests be 
applied to particular types of financial entities. For employee benefit 
plans, commenters particularly stated that a plan's obligations to pay 
benefits should not be considered a liability for purposes of the 
analysis, and the value of the plan's assets should be used as the 
denominator for the ratio in lieu of using the non-applicable term 
``equity.'' \1084\ Another commenter--which obtains a substantial 
amount of funding by issuing subordinated debt, rather than equity--
expressed the view that the leverage calculation should allow it to 
treat subordinated debt as equity.\1085\
---------------------------------------------------------------------------

    \1084\ See letters from CalSTRS I (also stating that for 
purposes of determining leverage ratios, the value of the plan's 
assets should be determined as of most recent annual valuation 
rather than quarterly) and APG (stating that only investment-related 
liabilities, rather than anticipated shortfalls in benefit 
obligations, should be considered in the leverage calculation, and 
the test should be adjusted to take into account legally binding 
investment restrictions and other constraints that could be just as 
effective, or more effective, at reducing insolvency risk as capital 
requirements that would limit leverage).
    \1085\ See letter from NRU CFC I (stating that this application 
of the leverage test would be consistent with its financial 
statements).
---------------------------------------------------------------------------

    Several commenters addressed the application of the leverage ratio 
to insurance companies in light of the applicable regulatory regimes 
and their use of statutorily required accounting methods rather than 
GAAP.\1086\ Those commenters took the view that an insurance company's 
leverage should be tested based on its risk-based capital ratio or on 
its statutory accounting statements, with certain adjustments to 
account for different types of liabilities,\1087\ or based on whether 
its insurance regulator believes that it is adequately 
capitalized.\1088\ One commenter said that the leverage ratio test 
should not apply to insurance companies,\1089\ and another said that 
application of the leverage ratio test to insurance companies should be 
coordinated with the FSOC.\1090\
---------------------------------------------------------------------------

    \1086\ See letters from ACLI, FSR I, MetLife and NAIC.
    \1087\ See letters from ACLI, FSR I and NAIC.
    \1088\ See letter from MetLife.
    \1089\ See letter from FSR I.
    \1090\ See letter from NAIC.
---------------------------------------------------------------------------

3. Final Rules
a. ``Financial Entity''
    Consistent with the Proposing Release, the final rules defining 
``financial entity'' for purposes of the third major participant test 
are based on the corresponding ``financial entity'' definition used in 
the Title VII exception from mandatory clearing for end users, with 
certain adjustments to avoid circularity.\1091\ In this regard, while 
we are mindful of one commenter's views that the differences between 
the major participant definitions and the end-user clearing exception 
necessitate different ``financial entity'' definitions,\1092\ we do not 
concur with the view that the term ``financial entity'' should be 
interpreted independently in these two contexts. Both sets of 
provisions distinguish between financial and non-financial entities in 
a way that limits the impact of Title VII on the latter set of 
entities, and we believe that the definitions should be consistent in 
light of those parallel purposes.
---------------------------------------------------------------------------

    \1091\ See CFTC Regulation Sec.  1.3(mmm)(1); Exchange Act rule 
3a67-6(a). Accordingly, this general definition encompasses 
commodity pools, private funds, ERISA plans, and persons 
predominately engaged in activities that are in the business of 
banking or financial in nature, as well as certain dealers or major 
participants. See note 1066, supra.
    \1092\ See letter from CalSTRS II (ERISA plans should not be 
included in the definition of ``financial entity'' for purposes of 
the major participant definitions).
---------------------------------------------------------------------------

    The Commissions are aware, however, that the major participant 
definitions differ from the mandatory clearing requirements in how they 
address affiliates. The mandatory clearing requirements include a 
provision that specifically addresses affiliates of persons that 
qualify for the exception from mandatory clearing for end users,\1093\ 
while no such specific provision is included in the major participant 
definitions. Given this absence, the Commissions believe it is 
appropriate to modify the final rules defining ``financial entity'' for 
purposes of the major participant definitions from the proposal to 
exclude certain centralized hedging and treasury entities.\1094\ The 
Commissions understand that a primary function of such centralized 
hedging and treasury entities is to assist in hedging or mitigating the 
commercial risks of other entities within their corporate groups. 
Although those entities' activities could constitute being ``in the 
business of banking or financial in nature,'' we do not believe that it 
would be appropriate to treat a person as a ``financial entity'' for 
the purposes of the major participant definitions if the person would 
fall within that definition solely because it facilitates hedging 
activities involving swaps or security-based swaps by majority-owned 
affiliates that themselves are not ``financial entities.'' \1095\ 
Absent this change, the major participant analysis would exclude 
hedging positions that do not use centralized hedging facilities, but 
would not exclude identical hedging positions that make use of a 
centralized hedging facility.\1096\ Such a result would inappropriately 
discourage the use of centralized hedging and treasury entities.
---------------------------------------------------------------------------

    \1093\ See CEA section 2(h)(7)(D); Exchange Act section 
3C(g)(4).
    \1094\ See CFTC Regulation Sec.  1.3(mmm)(2); Exchange Act rule 
3a67-6(b).
    \1095\ Consistent with the general inter-affiliate exceptions 
from the dealer and major participant definitions, see parts II.C 
and IV.G, for purposes of these rules, the counterparties are 
majority-owned affiliates if one party directly or indirectly holds 
a majority ownership interest in the other, or if a third party 
directly or indirectly holds a majority interest in both, based on 
holding a majority of the equity securities of an entity, or the 
right to receive upon dissolution or the contribution of a majority 
of the capital of a partnership. See CFTC Regulation Sec.  
1.3(mmm)(1); Exchange Act rule 3a71-6(b)(2).
    \1096\ We also note that this result is parallel to the Title 
VII end-user exception from mandatory clearing, which extends to 
hedging activities of financial entities on behalf of non-financial 
affiliates. See CEA section 2(h)(7)(D); Exchange Act section 
3C(g)(4).
---------------------------------------------------------------------------

    While the Commissions also have considered the views of commenters 
that the ``financial entity'' definition should exclude certain other 
types of entities--such as employee benefit plans, and cooperatives--
the final rules do not provide any such exclusions. As a general 
matter, the Commissions believe that the ``financial entity'' 
definition should be the same for purposes of the major participant

[[Page 30686]]

definition as it is for purposes of the end-user exception from 
mandatory clearing.\1097\
---------------------------------------------------------------------------

    \1097\ Similarly, the Commissions in general are not adopting 
categorical requests for exclusions from the major participant 
definitions. See part IV.J, infra.
---------------------------------------------------------------------------

    We also have considered the views of some commenters that 
subsidiaries of bank holding companies, financial holding companies or 
systemically important financial institutions should be considered to 
be ``subject to capital requirements established by an appropriate 
Federal banking agency,'' and hence not subject to the third statutory 
major participant test. We nonetheless interpret the term ``subject to 
capital requirements established by an appropriate Federal banking 
agency'' to specifically apply to persons for whom a Federal banking 
agency directly sets capital requirements. We do not believe that the 
term should be interpreted to apply to other persons by virtue of their 
being part of a holding company that is subject to those capital 
requirements, or otherwise being affiliated with persons subject to 
those capital requirements, because we do not believe that the mere 
fact of that relationship is sufficient to control or mitigate the 
credit risk that those persons pose to their counterparties.
b. ``Highly Leveraged''
i. Leverage Ratio Level
    After considering commenters' views, the Commissions are adopting 
final rules that define ``highly leveraged'' to generally mean a ratio 
of liabilities to equity in excess of 12 to 1.\1098\ Our adoption of 
this 12 to 1 standard, rather than the proposed 8 to 1 or 15 to 1 
alternatives, takes into account commenters' views on the alternatives, 
as well as one commenter's support for a 12 to 1 ratio.\1099\
---------------------------------------------------------------------------

    \1098\ See CFTC Regulation Sec.  1.3(mmm)(2); Exchange Act rule 
3a67-7(a). The final rules defining ``highly leveraged'' have been 
renumbered from the proposal for the sake of clarity.
    \1099\ See note 1082, supra, and accompanying text.
---------------------------------------------------------------------------

    In general, we believe that the structure of the third statutory 
major participant test--which, unlike the first statutory test, does 
not permit the exclusion of certain hedging positions--reasonably may 
be interpreted as reflecting the determination that: (a) higher 
leverage indicates that an entity poses a heightened risk of being 
unable to meet its obligations; and (b) such entities should not be 
permitted to exclude hedging positions from the ``substantial 
position'' analysis in light of the counterparty risks those positions 
pose (even recognizing that these may be lower than counterparty risks 
posed by comparable non-hedging positions).
    Commenters who addressed the proposed leverage ratio raised diverse 
points of view in support of the 8 to 1 and 15 to 1 alternatives, or 
other standards. A number of those commenters, however, appeared to 
focus on the outcome of particular leverage ratios--i.e., that a lower 
leverage ratio likely would lead to more major participants, and that a 
higher leverage ratio likely would lead to fewer major participants--
and to base their conclusions on their views of that outcome. In 
general, the comments did not reflect an attempt to identify typical 
leverage ratios for financial entities, or to address the link between 
leverage and risk.
    Some commenters specifically supported the use of a 15 to 1 
leverage ratio in light of Title I's use of that ratio.\1100\ While 
considering this perspective, we believe it also is appropriate to 
consider the different purposes for which leverage is addressed in the 
Title I and major participant contexts. The 15 to 1 leverage provision 
in Title I reflects a maximum allowable threshold of leverage for 
certain bank holding companies and nonbank financial companies when a 
determination has been made that such entities pose a ``grave threat to 
the financial stability of the United States'' and that the imposition 
of this limitation is necessary to mitigate the risks posed by such 
entities--in essence serving as a hard leverage cap for certain 
entities that have been deemed risky to the U.S. financial 
system.\1101\ In contrast, leverage serves a type of gatekeeper 
function in the major participant definitions by identifying the amount 
of leverage that will require a non-bank financial entity to engage in 
the ``substantial position'' analysis without excluding hedging 
positions, rather than seeking to limit the maximum leverage available 
to those entities. Just as concepts of ``maximum leverage'' are 
distinct from concepts of ``high leverage,'' the use of a 15 to 1 
maximum leverage ratio in Title I does not mandate the conclusion that 
the same 15 to 1 ratio must be used for interpreting the meaning of 
``highly leveraged'' in the major participant definitions.\1102\
---------------------------------------------------------------------------

    \1100\ See, e.g., letters from Amex and CDEU.
    \1101\ See Dodd-Frank Act section 165(j)(1).
    \1102\ We also note that the use of the 15 to 1 ratio of Title I 
in this context could lead to potentially incongruous results. In 
particular, if the Commissions were to use the 15 to 1 leverage 
ratio for the ``highly leveraged'' definition, then an entity that 
is deemed to be such a threat to the United States financial system 
that its leverage has been capped pursuant to Title I also would 
effectively be excepted from the third statutory test of the major 
participant definitions due to that cap. The 12 to 1 leverage ratio 
that we are adopting today does not give rise to the same result and 
therefore does not present the same question of interpretation as to 
whether this result would be appropriate.
---------------------------------------------------------------------------

    In considering the definition of the term ``highly leveraged'' 
based on the reasoning outlined above, we also are mindful that, as the 
Proposing Release noted,\1103\ broker-dealer capital regulations 
include special provisions that apply when a broker-dealer's leverage 
exceeds 12 to 1.\1104\ While we recognize that these capital 
regulations have limitations as tools for defining ``highly leveraged'' 
for purposes of the major participant definitions due to differences in 
how leverage would be calculated,\1105\ we also believe that these 
regulations are informative regarding the use of leverage in the major 
participant context given that they highlight an existing link between 
increased regulatory oversight and the amount of leverage an entity 
maintains.
---------------------------------------------------------------------------

    \1103\ See Proposing Release, 75 FR at 80199 n.152.
    \1104\ Exchange Act rule 15c3-1 provides that a broker-dealer 
may determine its required minimum net capital, among other ways, by 
applying a financial ratio that provides that its aggregate 
indebtedness shall not exceed 1500 percent of its net capital (i.e., 
a 15 to 1 aggregate indebtedness to net capital ratio). In addition, 
Exchange Act rule 17a-11 further requires that broker-dealers that 
use such method to establish their required minimum net capital must 
provide notice to regulators if their aggregate indebtedness exceeds 
1200 percent of their net capital (i.e., a 12 to 1 aggregate 
indebtedness to net capital ratio).
    \1105\ The measure of aggregate indebtedness in rule 15c3-1 
excludes certain secured liabilities, and the measure of net capital 
excludes certain illiquid assets but includes certain subordinated 
debt. As a result, the ratios discussed above would not necessarily 
be equivalent to 15:1 or 12:1 ratios when converted to a balance 
sheet ratio of liabilities to equity.
---------------------------------------------------------------------------

    In light of the reasons noted above for using a leverage ratio 
below 15 to 1, commenter concerns that a ratio of 8 to 1 would be too 
low, one commenter's suggestion of a 12 to 1 leverage ratio, and 
leverage tests found in broker-dealer capital regulations, the 
Commissions have determined that a 12 to 1 leverage ratio reflects an 
appropriate basis for identifying ``highly leveraged'' financial 
entities. In making this determination we recognize that other 
approaches also may be reasonable (e.g., lower thresholds based on the 
analysis of the leverage of certain financial entities also may be 
reasonable, as may higher thresholds based on Title I and on other 
aspects of broker-dealer capital rules). We also recognize, however, 
that the need to implement the major participant definitions requires 
that we draw a line. In our view, a 12 to 1 ratio reflects a

[[Page 30687]]

reasonable location for this line that is appropriate for purposes of 
the third major participant test, and that reasonably accounts for 
commenter concerns and the other considerations discussed above.
ii. Leverage Ratio Calculation
    Consistent with the proposal, the final rules defining ``highly 
leveraged'' generally measure leverage as a ratio of a person's 
liabilities to equity, as determined in accordance with GAAP.\1106\ 
Also, consistent with the proposal, these leverage ratios should be 
calculated as of the close of business on the last business day of the 
applicable fiscal quarter, as we do not believe there is any relevant 
difference among financial entities that would require timing 
variations.
---------------------------------------------------------------------------

    \1106\ See CFTC Regulation Sec.  1.3(mmm)(2); Exchange Act rule 
3a67-7(b). The accounting standard setters are currently working on 
a number of projects that may impact how leverage would be 
calculated using GAAP. The Commissions will review and potentially 
adjust their rules in the future to reflect changes in GAAP.
---------------------------------------------------------------------------

    In general, moreover, the Commissions believe that all types of 
financial entities should be subject to the same methods of measuring 
leverage, to facilitate the even application of the leverage test. At 
the same time, we are mindful of the significance of commenter concerns 
that calculating leverage as a ratio of liabilities to equity 
consistent with GAAP would lead to inappropriate results for certain 
types of financial instruments or financial entities.
    We believe that these concerns are significant enough to warrant 
one modification of the proposed approach to measuring leverage. In 
particular, the final rules provide that certain employee benefit plans 
may: (i) Exclude obligations to pay benefits to plan participants from 
their measure of liabilities for purposes of the leverage calculation; 
and (ii) substitute the total value of plan assets for equity for 
purposes of the leverage calculation.\1107\ We believe that this change 
will allow the measure of leverage to more appropriately reflect the 
risk that those entities pose.
---------------------------------------------------------------------------

    \1107\ See CFTC Regulation Sec.  1.3(mmm)(2)(ii); Exchange Act 
rule 3a67-7(b). These provisions specifically apply to employee 
benefit plans as defined by paragraph (3) and (32) of section 3 of 
ERISA, consistent with the ERISA exclusion from the first statutory 
major participant test.
---------------------------------------------------------------------------

    Otherwise, we do not believe that it would be appropriate to depart 
from GAAP measures of equity and liabilities for purposes of 
identifying highly leveraged entities.\1108\
---------------------------------------------------------------------------

    \1108\ Although commenters raised issues with regard to the 
application of leverage ratios to insurers, see, e.g., letter from 
FSR I, we do not believe that it would be appropriate to create a 
special leverage test for insurers. We note that insurers that are 
publicly traded companies already file financial statements 
consistent with GAAP. Also, smaller insurers that do not file GAAP-
based financial statements would be able to take advantage of the 
safe harbor from the major participant calculations. See part IV.M, 
infra.
---------------------------------------------------------------------------

G. Application to Inter-Affiliate Swaps and Security-Based Swaps

1. Proposed Approach and Commenters' Views
    In the Proposing Release, we stated that the major participant 
analysis should consider the economic reality of swaps and security-
based swaps between affiliates, and preliminarily concluded that swaps 
or security-based swaps among wholly owned affiliates ``may not pose 
the exceptional risks to the U.S. financial system that are the basis 
for the major participant definitions.''\1109\
---------------------------------------------------------------------------

    \1109\ See Proposing Release, 75 FR at 80202.
---------------------------------------------------------------------------

    A number of commenters concurred that swaps among affiliates should 
be excluded from the major participant analysis.\1110\ At the same 
time, no commenters expressed support for the Proposing Release's 
suggestion that this interpretation be limited to transactions among 
wholly owned subsidiaries. Instead, several commenters expressed the 
view that the swaps or security-based swaps should not be counted for 
purposes of the major participant analysis when the counterparties are 
under common control,\1111\ or otherwise are affiliates.\1112\ One 
commenter suggested that the analysis exclude swaps or security-based 
swaps between entities that are under common control and whose 
financial statements are consolidated.\1113\
---------------------------------------------------------------------------

    \1110\ See, e.g., letters from COPE I, FSR I and Encana 
Marketing (USA) Inc. dated February 22, 2011 (``Encana I'').
     Some commenters explained the widespread use of central hedging 
desks to allocate risk within affiliate groups or to gather risk 
from within a group and lay off that risk on the market. See, e.g., 
letters from CDEU, EEI/EPSA, Encana I and FSR I. Also, some 
commenters noted that including these inter-affiliate transactions 
within the major participant analysis would result in many cases in 
double-counting of an entity's swap or security-based swap activity. 
See letters from CDEU and FSR I.
    \1111\ See letter from Amex and CDEU. One commenter specifically 
suggested that we adopt the definition of ``control'' found in the 
Bank Holding Company Act. See joint letter from The Bank of Tokyo-
Mitsubishi UFJ, Ltd., Mizuho Corporate Bank, Ltd. and Sumitomo 
Mitsui Banking Corporation.
    \1112\ See, e.g., letters from COPE I, EEI/EPSA, FSR I, Encana I 
and Utility Group.
    \1113\ See joint letter from ABA Securities Association, ACLI, 
FSR, FIA, Institute of International Bankers, ISDA and SIFMA.
---------------------------------------------------------------------------

2. Final Rule
    After considering commenters' views, we have concluded that the 
major participant definitions should not encompass a person's swaps or 
security-based swaps for which the counterparty is a majority-owned 
affiliate. As noted in our discussion of inter-affiliate activities in 
the context of the dealer definitions, market participants may enter 
into such inter-affiliate swaps or security-based swaps for a variety 
of purposes. When swaps and security-based swaps are entered into to 
allocate risk within a corporate group and do not pose a high 
likelihood of risk to the broader market--as we believe would be the 
case with majority ownership--we do not believe that their swaps and 
security-based swaps raise the systemic risk and other concerns that 
major participant regulation is intended to address. For this reason, 
we do not believe that this interpretation needs to be limited to swaps 
or security-based swaps among wholly owned affiliates, as the Proposing 
Release had indicated.
    Accordingly, the final rules provide that a person may exclude 
particular swaps or security-based swaps from the analysis of whether 
the person is a major participant, so long as the counterparties to 
those swaps or security-based swaps are majority-owned 
affiliates.\1114\
---------------------------------------------------------------------------

    \1114\ See CFTC Regulation Sec.  1.3(hhh)(4); Exchange Act rule 
3a67-3(e). A person's market-facing swap or security-based swap 
positions, including those taken to lay off risk assumed from a 
majority-owned affiliate, must still be included in the person's 
substantial position and counterparty exposure calculations.
     For the purposes of this rule, and consistent with the general 
inter-affiliate exception from the dealer definitions, see part 
II.C, supra, counterparties are majority-owned affiliates if one 
party directly or indirectly owns a majority interest in the other, 
or if a third party directly or indirectly owns a majority interest 
in both, based on the right to vote or direct the vote of a majority 
of a class of voting securities of an entity, the power to sell or 
direct the sale of a majority of a class of voting securities of an 
entity, or the right to receive upon dissolution or the contribution 
of a majority of the capital of a partnership.
---------------------------------------------------------------------------

    In taking this approach, we have also considered alternatives 
suggested by commenters. For example, while one commenter suggested 
that we allow the exclusion of all swaps or security-based swaps 
between entities under common control, we believe that such an approach 
would be overly inclusive for the purpose of identifying transactions 
that should be excluded from the major participant analysis, given that 
common control by itself does not ensure that two entities' economic 
interests are sufficiently aligned.\1115\ Also, one commenter suggested 
that the inter-affiliate exclusion should apply to swaps and security-
based swaps between affiliates whose financial statements are 
consolidated, but, as we

[[Page 30688]]

addressed in the context of the dealer definitions, we do not believe 
that the scope of this exclusion should be exposed to the risk of 
future changes in accounting standards.\1116\
---------------------------------------------------------------------------

    \1115\ See part II.C.2, supra.
    \1116\ See text accompanying note 350, supra.
---------------------------------------------------------------------------

H. Application to Positions of Affiliated Entities and to Guarantees

1. Proposed Approach
    The Proposing Release expressed the preliminary view that when a 
parent is the majority owner of a subsidiary entity, the subsidiary's 
swap or security-based swap positions may be aggregated at the parent 
for purposes of the major participant analysis, on the grounds that the 
parent effectively is the beneficiary of the transaction. At the same 
time, the Proposing Release acknowledged that there could remain 
questions as to whether the requirements applicable to major 
participants--such as capital, margin and business conduct 
requirements--should be placed upon the parent or the subsidiary.\1117\
---------------------------------------------------------------------------

    \1117\ The Proposing Release further recognized that it may be 
appropriate at times to place the requirements upon the subsidiary 
to the extent the subsidiary is acting on behalf of the parent. See 
Proposing Release, 75 FR at 80202.
---------------------------------------------------------------------------

    The Proposing Release solicited comment on a number of aspects of 
these issues, including whether attribution would be appropriate when 
there is less than majority ownership, or when a parent provides 
guarantees on behalf of its subsidiaries. The Proposing Release also 
solicited comment with regard to implementation issues.\1118\
---------------------------------------------------------------------------

    \1118\ See id.
---------------------------------------------------------------------------

2. Commenters' Views
    A number of commenters expressed the view that the Commissions 
should not aggregate the positions of affiliates to the parent, arguing 
that legal separation should be respected unless there is some evidence 
that separate affiliates are being used to evade regulation.\1119\ 
Other commenters took the view that aggregation of affiliates' 
positions may be appropriate in some circumstances, such as when 
aggregation would accurately reflect the structure of a corporate group 
or its participation in the derivatives market.\1120\ One commenter 
recommended that if the Commissions choose to require the aggregation 
of affiliate positions for purposes of the major participant test, the 
Commissions also should provide a mechanism for entities to receive 
``disaggregation'' relief upon a showing that the affiliates are acting 
autonomously.\1121\
---------------------------------------------------------------------------

    \1119\ See letters from FSR I, ISDA, MetLife and Newedge. 
Certain of those commenters also warned of problems that could arise 
if the positions of international affiliates were aggregated, due to 
conflicting regulations potentially applicable to such entities. See 
letters from ISDA I, MetLife and Newedge. The Commissions are 
addressing issues related to the application of the major 
participant definitions to non-U.S. persons in separate releases.
    \1120\ See letters from CDEU (suggesting that control should be 
interpreted narrowly for purposes of the major participant test such 
that affiliated positions would only be aggregated if there is whole 
ownership or consolidation for accounting purposes, and exercise of 
actual control in terms of ownership and management) and ACLI 
(suggesting flexibility such that an entity with independent credit 
and no guarantee or credit support from a parent could be treated 
separately, but a corporate group could consolidate its affiliates' 
positions if that would accurately reflect its participation in the 
derivatives market).
    \1121\ See letter from Newedge.
---------------------------------------------------------------------------

    Some commenters argued that positions should not be consolidated 
for purposes of the major participant analysis even when a parent 
guarantees the obligations of a subsidiary.\1122\ Other commenters, 
however, expressed less opposition to aggregation in the presence of a 
guarantee or credit support.\1123\
---------------------------------------------------------------------------

    \1122\ See letters from APG (stating that the aggregation of 
inter-affiliate guaranteed transactions would raise costs without 
providing a corresponding benefit to the financial system, and that 
principal obligors and guarantors pose separate credit risks, which 
are already priced into the positions, and that guarantees are not 
traditionally regulated as swaps), CDEU (objecting to attributing 
the positions of an end-user affiliate that relies on a parent for 
credit support, primarily out of concern that an end-user that might 
otherwise avail itself of the end-user clearing exception might be 
forced to clear its transactions if they were attributed to the 
major participant parent), ISDA I and Twelve Firms (stating that the 
statutory major participant definitions do not indicate that they 
encompass contingent credit support arrangements, and that credit 
exposures of subsidiaries already will be addressed through 
regulation of the subsidiary).
    \1123\ See letters from FSR I (suggesting that there may be some 
situations in which the positions of different entities in a 
corporate group should be aggregated, such as when ``a parent entity 
guarantees the obligations of its subsidiaries that are engaging in 
swaps'') and MetLife (stating that ``it is not appropriate to 
require aggregation of subsidiaries' swaps at the parent level 
unless the parent is providing a guarantee or credit support for the 
subsidiaries' obligations''); see also letter from ACLI (stating 
that the positions of entities that do not have a guarantee or 
credit support from a parent are entitled to an individualized 
determination of their status under the major participant test).
---------------------------------------------------------------------------

    Commenters also addressed the application of these principles to 
particular types of entities. Some commenters took the view that 
positions guaranteed by financial guarantors should not be attributed 
to those entities for purposes of the major participant analysis.\1124\ 
Other commenters stated that the positions of a special purpose vehicle 
should not be aggregated with its sponsor where there is no recourse to 
the sponsor for the vehicle's obligations.\1125\ One commenter 
requested clarification that positions of joint ventures would not be 
aggregated with those of another entity if the positions are not 
consolidated on the other entity's balance sheet.\1126\ Commenters 
further took the view that ERISA plans should not be aggregated with 
those of plan sponsors for purposes of the major participant tests, 
noting that plans and sponsors are separate legal entities, file 
separate financial statements, are subject to separate regulatory 
schemes, and that plan sponsors are prohibited from providing credit 
support or guarantees to ERISA Title I plans.\1127\
---------------------------------------------------------------------------

    \1124\ See letters from AFGI (arguing against attribution on the 
grounds that the guarantors are typically not exposed to a 
fluctuating termination value of interest rate swaps for these types 
of transactions due to the fact that they do not guarantee that 
amount, but rather only guarantee continued payments of these 
policies, and also that they are subject to the standard 
underwriting process and thus are subject to comprehensive 
regulation) and joint letter from MBIA Inc., MBIA Insurance Corp. 
and National Public Finance Guarantee Corp. (``MBIA'') (arguing 
against attribution on the grounds that the economic exposure to the 
financial guarantor is the equivalent of having underwritten a fixed 
rate bond issued by the particular municipal entity, and such 
exposures are subject to the normal underwriting process and 
significant risk management and regulatory oversight).
    \1125\ See letters from American Securitization Forum 
(suggesting that aggregation is not appropriate when the risk is 
contained within the special purpose vehicle, and noting that 
special purpose vehicles often bear the entire economic risk of a 
security-based swap transaction and are bankruptcy remote, so the 
failure of a special purpose vehicle to meet its obligations would 
not have a rippling effect onto its sponsor) and FSR I (stating that 
the major participant determination should focus on a special 
purpose entity itself, and not its sponsor or transferor, in 
circumstances where securitization vehicles have been consolidated 
with sponsors or transferors for financial accounting purposes but a 
counterparty would have to conduct a separate credit analysis on the 
special purpose entity, and its obligations are nonrecourse to the 
sponsor or transferor).
    \1126\ See letter from CDEU (noting that non-consolidated joint 
ventures typically enter into their own swaps and these transactions 
are not included on the balance sheet of a minority holder in a 
joint venture).
    \1127\ See letters from CDEU and ERISA Industry Committee.
---------------------------------------------------------------------------

    Two commenters addressed operational compliance issues that would 
be raised if positions are aggregated for purposes of the major 
participant analysis. One commenter suggested that a corporate group 
that falls within the major participant definition due to its aggregate 
positions should be able to designate a single entity to undertake 
compliance on behalf of the other affiliates.\1128\ Another commenter 
stated that when the aggregated positions of a corporate group results 
in major participant designation, the Commissions should

[[Page 30689]]

exempt from major participant regulation all affiliates in the 
corporate group that otherwise would qualify for the end-user clearing 
exception.\1129\
---------------------------------------------------------------------------

    \1128\ See letter from FSR I (suggesting that a corporate group 
should be permitted to designate a single entity or a small number 
of entities as the registered major participant, with other entities 
in the group relying on that entity for compliance).
    \1129\ See letter from CDEU.
---------------------------------------------------------------------------

3. Final Interpretation
    After considering commenter concerns and the underlying issues, we 
are revising certain of the preliminary views we expressed in the 
Proposing Release. In particular, we no longer take the position that a 
subsidiary's swap or security-based swap position as a matter of course 
should be attributed to the subsidiary's majority-owner parent. 
Instead, consistent with the approach discussed below with regard to 
managed accounts,\1130\ an entity's swap or security-based swap 
positions in general would be attributed to a parent, other affiliate 
or guarantor for purposes of the major participant analysis to the 
extent that the counterparties to those positions would have recourse 
to that other entity in connection with the position. Positions would 
not be attributed in the absence of recourse.\1131\ We believe this 
approach in general appropriately reflects the risk focus of the major 
participant definitions by providing that entities will be regulated as 
major participants when they pose a high level of risk in connection 
with the swap and security-based swap positions they guarantee.\1132\ 
Indeed, the events surrounding the failure of AIG FP highlights how the 
guarantees can cause major risks to flow to the guarantor.\1133\
---------------------------------------------------------------------------

    \1130\ See part IV.I, infra.
    \1131\ In taking this position, we are not suggesting that the 
presence of a guarantee would be determinative of other issues 
arising under Title VII. For example, the fact that a parent that is 
a ``financial entity'' guarantees a subsidiary's swap or security-
based swap positions would not foreclose the subsidiary from taking 
advantage of the exception from mandatory clearing that is available 
to commercial end-users.
    \1132\ In reaching this conclusion, we have been mindful of 
views expressed by some commenters that the mere fact of a guarantee 
should not be enough to require the attribution of a position to a 
guarantor. We believe, however, that this approach is best suited to 
address the risk focus of the major participant definitions. We 
further believe that the statutory definition's language that 
addresses persons who ``maintain'' substantial positions or 
``whose'' positions create substantial counterparty exposure is 
consistent with this approach.
    We also have considered arguments that the major participant 
definition should not extend to financial guarantee insurers. We 
nonetheless believe that when an insurer guarantees the performance 
of other parties' swap or security-based swap positions, in an 
amount that is greater than the applicable major participant 
thresholds, it would be appropriate to regulate that entity as a 
major participant. When the guaranteed positions are large enough, 
the risks associated with those positions and the repercussions of 
the guarantor's default would appear to be within the ambit of the 
risks that that the major participant definitions were intended to 
capture. In reaching this conclusion, the Commissions are not 
expressing a view regarding whether financial guarantee insurance is 
a swap or security-based swap. See Product Definitions Proposal, 
note 3, supra.
    \1133\ ``AIGFP's obligations were guaranteed by its highly-rated 
parent company * * * an arrangement that facilitated easy money via 
much lower interest rates from the public markets, but ultimately 
made it difficult to isolate AIGFP from its parent, with disastrous 
consequences.'' The AIG Rescue, Its Impact on Markets, and the 
Government's Exit Strategy, note 913, supra, at 20.
---------------------------------------------------------------------------

    Even in the presence of a guarantee, however, we do not believe 
that it is necessary to attribute a person's swap or security-based 
swap positions to a parent or other guarantor if the person already is 
subject to capital regulation by the CFTC or SEC (i.e., swap dealers, 
security-based swap dealers, major swap participants, major security-
based swap participants, FCMs and broker-dealers) or if the person is a 
U.S. entity regulated as a bank in the United States. Positions of 
those regulated entities already will be subject to capital and other 
requirements, making it unnecessary to separately address, via major 
participant regulations, the risks associated with guarantees of those 
positions.\1134\
---------------------------------------------------------------------------

    \1134\ As a result of this interpretation, holding companies 
will not be deemed to be major participants as a result of 
guarantees to certain U.S. entities that already are subject to 
capital regulation. The Commissions intend to address guarantees 
provided to non-U.S. entities, and guarantees by non-U.S. holding 
companies, in separate releases.
---------------------------------------------------------------------------

    We recognize that attribution of swap or security-based swap 
positions to a parent or guarantor for purposes of the major 
participant analysis can raise special issues with regard to 
operational compliance. These include, for example, issues as to the 
application of the transaction-focused requirements applicable to 
registered major participants (e.g., certain requirements related to 
trading records and transaction confirmations), given that the entity 
that directly is the party to the swap or security-based swap may be 
better positioned to comply with those requirements. For those 
transaction-focused requirements, we believe that an entity that 
becomes a major participant by virtue of swaps or security-based swaps 
directly entered into by others must be responsible for compliance with 
all applicable major participant requirements with respect to those 
swaps or security-based swaps (and must be liable for failures to 
comply), but may delegate operational compliance with transaction-
focused requirements to entities that directly are party to the 
transactions. The entity that is the major participant, however, cannot 
delegate compliance duties with the entity-level requirements 
applicable to major participants (e.g., requirements related to 
registration and capital).\1135\
---------------------------------------------------------------------------

    \1135\ This type of attribution may also be expected to raise 
special issues of application in the context of guarantees involving 
swap or security-based swap positions of non-U.S. entities. The 
Commissions intend to address those issues in separate releases.
---------------------------------------------------------------------------

I. Application to Managed Accounts

1. Proposed Approach
    The Proposing Release expressed the preliminary view that the major 
participant definitions should not be interpreted to cause asset 
managers or investment advisers to be major participants by virtue of 
the swap and security-based swap positions of the accounts that they 
manage.\1136\ In addition, the Proposing Release expressed the 
preliminary view that the managed positions for which a person is a 
beneficial owner should be aggregated with the person's other positions 
for the purpose of determining whether the beneficial owner is a major 
participant.\1137\
---------------------------------------------------------------------------

    \1136\ In reaching this preliminary conclusion, we considered 
the text of the major participant definitions, as well as a colloquy 
on the Senate floor that addressed the status of managed accounts 
for purposes of the major participant definitions. See Proposing 
Release, 75 FR at 80201 & n.162.
    The Proposing Release also noted that the Commissions have anti-
evasion authority to the extent that persons seek to allocate swaps 
or security-based swaps among different accounts to seek to evade 
the regulations applicable to major participants. See id. at 80201.
    \1137\ See id.
---------------------------------------------------------------------------

2. Commenters' Views
    Numerous commenters supported the view that the major participant 
definitions should not be construed to aggregate the accounts managed 
by asset managers or investment advisers when determining whether a 
manager or adviser itself is a major participant.\1138\ One commenter 
requested that the final rules codify this principle.\1139\
---------------------------------------------------------------------------

    \1138\ See, e.g., letters from BlackRock I and Fidelity.
    \1139\ See letter from Fidelity (particularly addressing fund 
managers).
---------------------------------------------------------------------------

    Some commenters opposed the possibility that the swap or security-
based swap positions of mutual funds would be attributed to fund 
investors for purposes of the major participant analysis, emphasizing 
that the fund is the entity that bears the credit exposure.\1140\ Some 
commenters also opposed the possibility that a swap or security-based 
swap position of a managed account may be attributed to the account's 
beneficial owner when the counterparty to the position does not

[[Page 30690]]

have recourse to the beneficial owner's assets.\1141\
---------------------------------------------------------------------------

    \1140\ See letter from BlackRock and joint letter from ICI and 
SIFMA AMG.
    \1141\ See letters from SIFMA AMG II (stating that ISDA Master 
Agreements commonly provide that the counterparty to the transaction 
does not have recourse to the accountholder's other assets held in 
different accounts) and Fidelity (stating that when counterparties 
look solely to the credit and assets of an individual account, the 
actual risks to the counterparty are tied to and limited by the 
activities of the account; also stating that requiring aggregation 
of separate accounts based on beneficial ownership would be 
complicated, costly, and present substantial operational and legal 
complexities); see also letter from BlackRock I (stating the 
understanding that the Proposing Release's reference to beneficial 
ownership to require that separate account positions be attributed 
to the owner of the separate account, and stating that this result 
would be consistent with the definitions' focus on the persons whose 
positions create credit risk).
    Commenters also emphasized potential impracticalities of 
requiring asset managers to be responsible for making major 
participant determinations on behalf of beneficial owners. See, 
e.g., letter from SIFMA AMG II.
---------------------------------------------------------------------------

    One commenter encouraged the Commissions to consider developing 
anti-evasion measures if necessary, but cautioned that the rules should 
recognize that there are legitimate business reasons to structure 
separate, individually managed funds.\1142\ Another commenter dismissed 
concerns that entities may spread assets among many asset managers or 
use separate trading agreements to avoid regulation.\1143\
---------------------------------------------------------------------------

    \1142\ See letter from AIMA I.
    \1143\ See letter from SIFMA AMG II (arguing that it would be 
unlikely for this sort of evasion to actually occur since such 
tactics would be prohibitively expensive and operationally 
burdensome, and further stating that the Commissions could address 
such concerns through their anti-evasion authority).
    Also, one commenter suggested that major participant obligations 
should be limited in their territorial scope and should only apply 
to U.S. funds or those funds that are otherwise regulated in the 
U.S. See letter from AIMA I. The Commissions are addressing issues 
related to the application of the major participant definitions to 
non-U.S. persons in separate releases.
---------------------------------------------------------------------------

    In addition, commenters raised related issues regarding the 
potential attribution of positions for purposes of the major 
participant analysis. Some commenters expressed the view that insurance 
company separate accounts should be excluded from the major participant 
determination for the insurer, because those separate accounts 
generally are segregated from the insurance company's other 
accounts.\1144\ Two commenters requested clarification as to how swap 
and security-based swap positions of funds with a ``master-feeder'' 
structure should be allocated for the major participant 
determinations.\1145\
---------------------------------------------------------------------------

    \1144\ See letters from ACLI, FSR I and MetLife.
    \1145\ See letters from MFA I (stating that in master-feeder 
fund structures, money that is invested flows to the master fund for 
actual investing or trading, and further explaining that the master 
fund: Is the party to the master trading agreements; negotiates the 
individual transactions; holds assets; receives the margin calls; is 
ultimately responsible for posting collateral; and is the entity to 
whom recourse is generally limited) and CCMR I.
---------------------------------------------------------------------------

3. Final Interpretation
    Consistent with the approach set forth in the Proposing Release, 
the Commissions do not believe that it is necessary to consider the 
swap or security-based swap positions of the client accounts managed by 
asset managers or investment advisers when determining whether those 
entities are major participants. In reaching this conclusion we 
particularly are influenced by the fact that the statutory definitions 
specifically address entities that ``maintain'' substantial positions 
or ``whose'' outstanding swaps and security-based swaps create 
substantial counterparty exposure. Our conclusion also is influenced by 
the fact that it would not appear appropriate to impose certain 
regulations applicable to major participants (e.g., capital) upon those 
entities.\1146\
---------------------------------------------------------------------------

    \1146\ We do not believe that it is necessary to codify this 
interpretation.
---------------------------------------------------------------------------

    Separately, after carefully considering commenters' views and the 
purposes of major participant regulation, we are modifying the 
preliminary views expressed in the Proposing Release regarding the 
application of the major participant analyses to the beneficial owners 
of managed swap and security-based swap positions. In particular, we 
conclude that the major participant analysis that applies to the 
beneficial owners of those positions should focus on where the risk 
associated with those positions ultimately resides, given how the 
statutory major participant definitions focus on the risks posed by 
large swap or security-based swap positions. Thus, for example, if the 
counterparties to a swap or security-based swap position within a 
managed account have recourse only to the assets of that account in the 
event of default--and lack recourse to other assets of the beneficial 
owners--we do not believe that it would be appropriate to attribute 
that position to its beneficial owner. \1147\ Conversely, to the extent 
that the counterparty to that position also has recourse to the 
beneficial owner, it would be appropriate to attribute the positions to 
the beneficial owner for purposes of the major participant 
analysis.\1148\
---------------------------------------------------------------------------

    \1147\ Thus, for example, there would not be recourse to the 
owners of shares in a registered investment company that maintains 
swap or security-based swap positions.
    \1148\ For example, under some circumstances the positions 
within the managed account may make use of a credit support annex 
entered into by the beneficial owner. In that case, the counterparty 
to the account's swaps and security-based swaps may have legal 
recourse to the beneficial owner, making it appropriate to attribute 
the position to the beneficial owner for purposes of the major 
participant analysis.
---------------------------------------------------------------------------

    We believe that this general approach of attributing positions when 
recourse is possible also is applicable with respect to related issues 
raised by commenters, including issues related to insurance company 
separate accounts and master-feeder fund arrangements. For those 
situations the same principle would apply--positions within an account 
or entity may be attributed to another entity for purposes of the major 
participant analysis if the counterparties to those positions can seek 
recourse from that other entity.

J. Requests for Exclusion of Certain Entities From the Major 
Participant Definitions

1. Proposed Approach
    In advance of the Proposing Release, a number of commenters argued 
that the Commissions should exclude various types of entities from the 
major participant definitions.\1149\ While the proposed rules did not 
incorporate any such exclusions, the Proposing Release solicited 
comment as to potential exclusions for: Entities that maintain legacy 
portfolios, investment companies, ERISA plans, registered broker-
dealers and/or registered FCMs, sovereign wealth funds, banks, state-
regulated insurers, private and state pension plans, and registered 
DCOs or clearing agencies.\1150\
---------------------------------------------------------------------------

    \1149\ These comments were submitted in response to the ANPRM. 
See notes 4 and 5, supra.
    \1150\ See Proposing Release, 75 FR at 80202-03.
---------------------------------------------------------------------------

2. Commenters' Views
    Several commenters supported categorical exclusions from the major 
participant definitions for various types of entities. Commenters 
particularly urged the Commissions to provide exclusions for:
     Entities that maintain legacy portfolios of swaps and 
security-based swaps that are in run-off;\1151\
---------------------------------------------------------------------------

    \1151\ See, e.g., letters from Canadian MAVs, ISDA I and MBIA.
---------------------------------------------------------------------------

     Registered investment companies and related investment 
advisers;\1152\
---------------------------------------------------------------------------

    \1152\ See letters from Fidelity and Vanguard and joint letter 
from ICI and SIFMA AMG.
---------------------------------------------------------------------------

     ERISA plans, other pension funds, and endowments;\1153\
---------------------------------------------------------------------------

    \1153\ See letters from CDEU, ERISA Industry Committee and SIFMA 
AMG II (addressing ERISA plans); see also letters from ABC/CIEBA, 
CalSTRS I, Fidelity and SIFMA AMG II, (addressing government plans) 
and letter from Government of Singapore Investment Corp. (``GIC'') 
(addressing other pension plans and endowments). But see letter from 
AFSCME (urging caution with respect to a full exclusion of plan 
swaps from major participant consideration).

---------------------------------------------------------------------------

[[Page 30691]]

     Insurance companies;\1154\
---------------------------------------------------------------------------

    \1154\ See letters from AFGI (supporting exclusion for state-
regulated insurers), NAIC (supporting exclusion for state-regulated 
insurers to the extent they are using derivatives for the purpose of 
hedging and not engaging in systemically significant derivatives 
activities determined by the Financial Stability Oversight Counsel), 
ACLI (supporting exclusion for life insurers) and AIA (supporting 
exclusion for property-casualty insurers).
---------------------------------------------------------------------------

     Certain registered FCMs and broker-dealers.\1155\
---------------------------------------------------------------------------

    \1155\ See letter from Newedge (supporting exclusion for 
registered FCMs and broker-dealers that engage principally in 
customer swap facilitation activities but not in other activities of 
swap or security-based swap dealers).
---------------------------------------------------------------------------

     End users; \1156\ and
---------------------------------------------------------------------------

    \1156\ Commenters making this point varied in their phrasing of 
the requested exclusion. One request asked for the exclusion of any 
company (regardless of its primary business) that uses swaps 
predominantly to hedge business risks and that does not pose 
systemic risk. See letter from CDEU. Another commenter asked for the 
exclusion of any end user employing prudent risk management. See 
letter from NAIC. And one commenter asked for the exclusion of 
energy companies that use swaps to hedge commercial risks. See 
letter from EDF Trading.
---------------------------------------------------------------------------

     Various types of non-U.S. persons, including: foreign 
governments and their agencies and instrumentalities (such as central 
banks, treasury ministries, export agencies and governmental financing 
authorities),\1157\ international organizations and multilateral 
development banks,\1158\ sovereign wealth funds,\1159\ and non-U.S. 
entities subject to comparable foreign regulation.\1160\
---------------------------------------------------------------------------

    \1157\ See letters from Milbank Tweed and Norges Bank Investment 
Management and meeting with Kreditanstalt f[uuml]r Wiederaufbau 
(``KfW'').
    \1158\ See letter from World Bank Group.
    \1159\ See letters from China Investment Corporation (``CIC'') 
and GIC.
    \1160\ See letters from Newedge and SIFMA AMG II.
---------------------------------------------------------------------------

    Commenters articulated a range of rationales in support of such 
exclusions. These included arguments that particular types of entities: 
(i) Are unlikely to meet one or more of the major participant tests; 
\1161\ (ii) already are subject to regulation (and in some cases are 
subject to prudential limits on their use of swaps or security-based 
swaps);\1162\ (iii) do not pose systemic risk \1163\ and/or the type of 
counterparty risk contemplated by Title VII; \1164\ or (iv) do not 
raise concerns given that they would remain subject to the clearing, 
exchange trading, and reporting requirements of Title VII.\1165\ Also, 
some commenters maintained that regulating non-U.S. entities as major 
participants would raise issues with respect to extra-territoriality, 
international comity and sovereignty.\1166\
---------------------------------------------------------------------------

    \1161\ See letters from AIMA I (addressing hedge fund managers 
registered as investment advisers); AIA (addressing property-
casualty insurers) and Newedge (addressing FCMs and broker-dealers).
    \1162\ See letters from Fidelity and Vanguard and joint letter 
from ICI and SIFMA AMG (addressing registered investment companies 
and their advisors), ABC/CIEBA, CDEU, ERISA Industry Committee and 
Fidelity (addressing ERISA plans and government benefit plans), ACLI 
(addressing life insurers), AIA (addressing property-casualty 
insurers), NAIC (addressing state-regulated insurers), Newedge 
(addressing FCMs and broker-dealers) and GIC (addressing sovereign 
wealth funds).
    \1163\ See letters from ABC/CIEBA and CDEU (addressing ERISA 
plans), ICI I and Vanguard (addressing registered investment 
companies), ACLI (addressing life insurers), CDEU and NAIC 
(addressing end users), and letter from CIC and meeting with Weil 
(addressing sovereign wealth funds).
    \1164\ See letters from CDEU and ERISA Industry Committee 
(addressing ERISA plans) and letter from GIC and meeting with Weil 
(addressing sovereign wealth funds).
    \1165\ See letters from Vanguard (addressing registered 
investment companies), Newedge (addressing FCMs and broker-dealers), 
and CIC (addressing sovereign wealth funds).
    \1166\ See letters from CIC, GIC, and Milbank Tweed and meeting 
with KfW (addressing foreign governments and their agencies and 
instrumentalities), meeting with Weil (addressing sovereign wealth 
funds)and letter from World Bank Group (addressing international 
organizations and multilateral development banks).
---------------------------------------------------------------------------

    In contrast to these requests, one commenter urged that the 
benefits arising from regulation of major participants be considered in 
determining whether to create carve-outs from the participant 
definitions that are not provided in the statute.\1167\
---------------------------------------------------------------------------

    \1167\ See letter from AFSCME.
---------------------------------------------------------------------------

3. Final Rules
    After considering the comments received and the underlying issues, 
the Commissions have determined not to provide categorical exclusions 
from the major participant definitions for the types of entities 
discussed by commenters.
a. Entities That Maintain Legacy Portfolios
    Commenters that supported the exclusion of entities with legacy 
portfolios of swaps or security-based swaps emphasized that those 
portfolios are in run-off, and that those entities generally do not 
engage in ongoing swap or security-based swap activity.\1168\ Several 
of those commenters further expressed concerns that imposing the 
regulations applicable to major participants--particularly margin and 
capital rules--upon these entities could cause them to default on their 
obligations and lead to market disruption.\1169\
---------------------------------------------------------------------------

    \1168\ See letters from AFGI, BlackRock I, Canadian MAVs, ISDA I 
and MBIA and meetings with Athilon Structured Investment Advisors 
(``Athilon'') on April 18, 2011 and with Cypress Group, Invicta 
Financial Group, Primus Asset Management, Inc., and Quadrant 
Structured Investment Advisors on April 7, 2011.
    Although the Proposing Release specifically addressed granting 
an exclusion in connection with legacy positions entered into by 
monoline insurers and credit derivative product companies, 
commenters expressed the view that such an exclusion should apply to 
other types of entities that maintain legacy portfolios, such as 
certain special purpose vehicles. See letters from BlackRock I, 
Canadian MAVs and ISDA.
    \1169\ See letters from Athilon, BlackRock I, Canadian MAVs, and 
ISDA I.
---------------------------------------------------------------------------

    In the view of the Commissions, the fact that these entities no 
longer engage in new swap or security-based swap transactions does not 
overcome the fact that entities that are major participants will have 
portfolios that are quite large and could pose systemic risk to the 
U.S. financial system.
    We are mindful of the significance of concerns that regulating 
entities that maintain legacy portfolios has the potential to lead to 
defaults and disruption. We do not believe, however, that these 
concerns are best addressed by excluding those entities from major 
participant regulation. Instead, in adopting substantive rules 
applicable to major participants, the Commissions intend to pay 
particular attention to the special issues raised by the application of 
those rules to legacy portfolios.\1170\ Moreover, to the extent that 
these types of concerns remain following the promulgation of those 
final substantive rules, the Commissions may entertain requests for 
relief or guidance on a case-by-case basis.
---------------------------------------------------------------------------

    \1170\ For example, in conjunction with the SEC's proposed 
margin and capital rules applicable to major participants, the SEC 
expects to request comment on how the rules should apply to entities 
with legacy portfolios.
---------------------------------------------------------------------------

b. Other Domestic Entities
    Commenters also raised concerns regarding duplicative regulation 
for entities that already are subject to other types of regulation 
(e.g., state-regulated insurers, SEC-regulated registered investment 
companies and broker-dealers, and CFTC-regulated registered FCMs). The 
final rules nonetheless provide no such exclusion. The Dodd-Frank Act 
provided for the regulation of major participants against the backdrop 
of existing state and federal regulation, without opting to 
categorically exclude particular types of entities. Indeed, the 
definitions explicitly anticipate that

[[Page 30692]]

pension plans \1171\ and banks \1172\--both of which are subject to 
existing regulation--may be major participants. Major participant 
regulation provides a regulatory structure prescribed by the Dodd-Frank 
Act to address the risks posed by entities whose swap or security-based 
swap positions are large enough to satisfy the major participant 
definitions. Other types of regulations to which these entities may be 
subject serve different objectives \1173\ that are not substitutes for 
major participant regulation.\1174\
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    \1171\ The first major participant test (but not the second or 
third tests) excludes positions maintained by certain employee 
benefit plans for the primary purpose of hedging or mitigating any 
risk directly associated with the operation of the plan. See CEA 
section 1a(33)(A)(i)(II); Exchange Act section 3(a)(67)(A)(ii)(I). 
This tailored exclusion of certain pension plan positions suggests 
that Congress did not intend to broadly exclude such plans from the 
other two prongs or from the major participant definitions as a 
whole. The fact that, as two commenters noted (see letters from ABC/
CIEFA and CDEU), the CFTC previously has relied on the regulatory 
structure already governing ERISA plans as a basis to not regulate 
these plans in other certain unrelated contexts does not alter this 
conclusion.
    \1172\ The third major participant test excludes entities that 
are subject to bank capital standards, which suggests that such 
entities may be eligible to be major participants under the first 
and second tests. Also, the capital and margin requirements 
applicable to major swap participants and major security-based swap 
participants (see Dodd-Frank Act sections 731 and 764, respectively) 
do not apply to major participants subject to capital rules set by 
bank regulators, which further indicates that such entities may be 
major participants.
    \1173\ As some commenters noted, entities excluded from the 
major participant definitions nonetheless may be subject to other 
requirements of general applicability imposed by Title VII, such as 
clearing, trade execution, and reporting requirements. Even where 
that is the case, though, these requirements serve separate and 
independent purposes. They do not stand as a substitute for the 
protections that Congress has prescribed with respect to major 
participants in particular.
    \1174\ For example, as noted above, some commenters stated that 
the major participant definitions should not apply to investment 
companies registered under the ICA. See, e.g., letters from 
Fidelity, ICI I and Vanguard. However, we are not adopting any such 
exclusions in part because the major participant definitions focus 
on the market impacts of an entity's swap and security-based swap 
positions and the risk to the U.S. financial system generally, areas 
that are not the focus of the regulation of investment companies 
under the ICA. Moreover, based on our understanding of the swap and 
security-based swap activity of registered investment companies, we 
believe that registered investment companies generally are not 
likely to meet the thresholds of the major participant definitions. 
We will continue to monitor the effects of the rules we are adopting 
today to help ensure that they do not result in any inadvertent 
consequences for registered investment companies, or other entities 
registered with the SEC or CFTC.
---------------------------------------------------------------------------

    The Commissions expect that only a very few entities within a given 
category may meet the test of being a major swap participant--or even 
be close to the various thresholds for meeting that test. Entities that 
do not meet the thresholds of the major participant definitions do not 
need an exclusion from those definitions. Further, as noted elsewhere 
in this Adopting Release, the Commissions are permitting entities to 
rely on a ``safe harbor'' when their positions are far below any 
threshold for any particular quarter. Some of the entities for which 
exclusion has been sought may be expected to fall within the safe 
harbor. Those comparatively fewer entities that will be closer to a 
particular threshold, by contrast, should not be excused on a per se 
basis from completing the calculations set forth in these rules and, if 
the calculations demonstrate that the entity meets the test of a major 
participant, from compliance with the requirements for major 
participants set forth by Congress.
    At the same time, the Commissions recognize the benefits of 
efficiently regulating major participants that are separately 
registered with and regulated by the CFTC or SEC (such as registered 
FCMs or broker-dealers).\1175\ If any such registrants are required 
also to register as major participants, the CFTC and SEC would seek to 
coordinate their regulatory oversight as appropriate to achieve the 
independent purposes of major participant regulation and those separate 
regulatory requirements, while avoiding unnecessary duplication.\1176\
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    \1175\ The Commissions also sought comment as to whether the 
major participant definitions should apply to derivatives clearing 
organizations or clearing agencies, but received no comments in 
response to this inquiry. Nonetheless, the Commissions do not 
believe that Congress intended derivatives clearing organizations 
registered with the CFTC or clearing agencies registered with the 
SEC to be registered or regulated as major participants. The CFTC 
and the SEC already exercise substantive regulatory oversight over 
these clearinghouses, authority that was enhanced by Title VII. 
Further, Title VIII of the Dodd-Frank Act provides for the 
supervision of systemically important derivatives clearing 
organizations and clearing agencies. See Dodd-Frank Act Title VIII. 
We do not believe that Congress intended to place a third layer of 
oversight on those entities by subjecting them to additional 
regulation as major participants, and we do not interpret the major 
participant definitions to do so.
    \1176\ For many years, the Commissions have coordinated their 
examination of dually-registered FCM/BDs through working groups 
including the Joint Audit Committee and the Intermarket Financial 
Surveillance Group. Moreover, pursuant to Title IV of the Dodd-Frank 
Act, the CFTC and SEC have issued joint reporting rules for advisors 
to private funds that are dually registered with the SEC as 
investment advisers and with the CFTC as commodity pool operators or 
commodity trading advisors. See CFTC and SEC, Reporting by 
Investment Advisers to Private Funds and Certain Commodity Pool 
Operators and Commodity Trading Advisors on Form PF; Final Rule, 76 
FR 71127 (Nov. 16, 2011).
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c. Foreign Entities
    Commenters \1177\ discussed the major participant definitions in 
the context of foreign governments and various entities related to 
foreign governments \1178\ (i.e., foreign central banks,\1179\ 
international financial institutions \1180\ and sovereign wealth 
funds). The CFTC provides the following guidance with respect to the 
major swap participant definition and the swap dealer definition.\1181\
---------------------------------------------------------------------------

    \1177\ See letters from CIC, GIC, Milbank Tweed, Norges Bank 
Investment Management and the World Bank, and meetings with KfW and 
Weil.
    \1178\ For this purpose, we consider that the term ``foreign 
government'' includes KfW, which is a non-profit, public sector 
entity responsible to and owned by the federal and state authorities 
in Germany, mandated to serve a public purpose, and backed by an 
explicit, full, statutory guarantee provided by the German federal 
government.
    \1179\ For this purpose, we consider the Bank for International 
Settlements, in which the Federal Reserve and foreign central banks 
are members, to be a foreign central bank. See https://www.bis.org/about/orggov.htm.
    \1180\ For this purpose, we consider the ``international 
financial institutions'' to be those institutions defined as such in 
22 U.S.C. 262r(c)(2) and the institutions defined as ``multilateral 
development banks'' in the Proposal for the Regulation of the 
European Parliament and of the Council on OTC Derivative 
Transactions, Central Counterparties and Trade Repositories, Council 
of the European Union Final Compromise Text, Article 1(4a(a)) (March 
19, 2012). There is overlap between the two definitions, but 
together they include the following institutions: the International 
Monetary Fund, International Bank for Reconstruction and 
Development, European Bank for Reconstruction and Development, 
International Development Association, International Finance 
Corporation, Multilateral Investment Guarantee Agency, African 
Development Bank, African Development Fund, Asian Development Bank, 
Inter-American Development Bank, Bank for Economic Cooperation and 
Development in the Middle East and North Africa, Inter-American 
Investment Corporation, Council of Europe Development Bank, Nordic 
Investment Bank, Caribbean Development Bank, European Investment 
Bank and European Investment Fund. (The term international financial 
institution includes entities referred to as multilateral 
development banks. The International Bank for Reconstruction and 
Development, the International Finance Corporation and the 
Multilateral Investment Guarantee Agency are parts of the World Bank 
Group.)
    \1181\ The SEC intends to address issues related to the 
application of the major security-based swap participant definition 
to non-U.S. entities as part of a separate release that the SEC is 
issuing in connection with the application of Title VII to non-U.S. 
persons. The SEC is also able to address concerns related to the 
individual substantive rules applicable to major security-based swap 
participants on a case-by-case basis.
---------------------------------------------------------------------------

    As an initial matter, foreign entities are not necessarily immune 
from U.S. jurisdiction for commercial activities undertaken with U.S. 
counterparties or in U.S. markets.\1182\ In accordance with

[[Page 30693]]

the general rule, a per se exclusion for foreign entities from the 
CEA's major swap participant or swap dealer definition, therefore, is 
inappropriate. A foreign entity's swap activity may be commercial in 
nature and may qualify it as a swap dealer or major swap participant. 
Registration and regulation as a swap dealer or major swap participant 
under such circumstances may be warranted.\1183\ This is particularly 
true for foreign corporate entities and sovereign wealth funds, which 
act in the market in the same manner as private asset managers.
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    \1182\ See Foreign Sovereign Immunities Act of 1976, 28 U.S.C. 
1602 (``under international law, states are not immune from the 
jurisdiction of foreign courts insofar as their commercial 
activities are concerned * * * Claims of foreign states to immunity 
should henceforth be decided by courts of the United States and of 
the States in conformity with the principles set forth in this 
chapter.''). See also Mendaro v. World Bank, 717 F.2d 610 (DC Cir. 
1983) (multilateral development banks generally do not have immunity 
in connection with their commercial dealings in the United States); 
Osseiran v. International Financial Corp., 552 F.3d 836 (DC Cir. 
2009) (same); Vila v. Inter-American Investment Corp., 570 F.3d 274 
(DC Cir. 2009) (same).
    \1183\ Such a registration requirement would have to satisfy the 
requirements of CEA section 2(i), 7 U.S.C. 2(i), which provides that 
the provisions of Title VII relating to swaps ``shall not apply to 
activities outside the United States unless those activities--(1) 
Have a direct and significant connection with activities in, or 
effect on, commerce of the United States; or (2) contravene such 
rules or regulations as the Commission may prescribe or promulgate 
as are necessary or appropriate to prevent the evasion of any 
provision of [the CEA] that was enacted by'' Title VII of the Dodd-
Frank Act.
---------------------------------------------------------------------------

    On the other hand, the sovereign or international status of foreign 
governments, foreign central banks and international financial 
institutions that themselves participate in the swap markets in a 
commercial manner is relevant in determining whether such entities are 
subject to registration and regulation as a major swap participant or 
swap dealer. Canons of statutory construction ``assume that legislators 
take account of the legitimate sovereign interests of other nations 
when they write American laws.'' \1184\ There is nothing in the text or 
history of the swap-related provisions of Title VII to establish that 
Congress intended to deviate from the traditions of the international 
system by including foreign governments, foreign central banks and 
international financial institutions within the definitions of the 
terms ``swap dealer'' or ``major swap participant,'' thereby requiring 
that they affirmatively register as swap dealers or major swap 
participants with the CFTC and be regulated as such.\1185\ The CFTC 
does not believe that foreign governments, foreign central banks and 
international financial institutions should be required to register as 
swap dealers or major swap participants.
---------------------------------------------------------------------------

    \1184\ See F. Hoffman-LaRoche, Ltd. v. Empagran S.A., 542 U.S. 
155, 164 (2004), citing Murray v. Schooner Charming Betsy, 2 Cranch 
64, 118, 2 L.Ed. 208 (1804) (``[A]n act of congress ought never to 
be construed to violate the law of nations if any other possible 
construction remains''); Hartford Fire Insurance Co. v. California, 
509 U.S. 764 (1993) (Scalia, J., dissenting). See also Restatement 
(Third) Foreign Relations Law Sec.  403 (scope of a statutory grant 
of authority must be construed in the context of international law 
and comity including, as appropriate, the extent to which regulation 
is consistent with the traditions of the international system).
    \1185\ To the contrary, section 752(a) of the Dodd-Frank Act 
requires the CFTC to consult and coordinate with other regulators 
``on the establishment of consistent international standards with 
respect to the regulation (including fees) of swaps [and] swap 
entities * * *''
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K. Financing Subsidiary Exclusion From Major Swap Participant 
Definition

    In connection with the definition of major swap participant, CEA 
section 1a(33)(D) excludes certain entities from the definition of a 
major swap participant whose primary business is providing financing 
and uses derivatives for the purpose of hedging underlying commercial 
risks related to interest rate and foreign currency exposures, 90 
percent or more of which arise from financing that facilitates the 
purchase or lease of products, 90 percent or more of which are 
manufactured by the parent company or another subsidiary of the parent 
company (the ``captive finance company exception'').\1186\ This 
provision of the Dodd-Frank Act is not applicable to major security-
based swap participants.
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    \1186\ 7 U.S.C. 1a(33)(D).
---------------------------------------------------------------------------

1. Proposal
    The Proposing Release restated the statutory captive finance 
company exception but did not further define or detail its scope or 
parameters. Accordingly, the CFTC did not propose a specific rule 
excluding certain financing subsidiaries from the definition of major 
swap participant in the Proposing Release.
2. Commenters' Views
    Commenters generally believed that the captive finance company 
exception should be broadly construed to cover financing of products 
being sold by the parent company or its authorized dealers, financing 
of service and labor, financing of component parts and attachments, and 
other general financing of the distribution network.\1187\ One 
commenter said the exception should be read narrowly, because the 
physical positions (in inventory, etc.) related to swaps may not be 
able to be liquidated to mitigate the risks of the swaps.\1188\
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    \1187\ See letters from CDEU, U.S. Chamber of Commerce, Center 
for Capital Markets Competiveness (``Chamber'') dated December 30, 
2011 (``Chamber II'') and NRU CFC I.
    \1188\ See meeting with Duffie on February 2, 2011. In addition, 
another commenter also suggested that the exception not be 
interpreted broadly due to concerns regarding potential abuse. See 
letter from CMOC.
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3. Final Rules
    The CFTC believes that the exception set forth in CEA section 
1a(33)(D) should be construed (consistent with the statute) to provide 
practical relief to those captive finance companies whose ``primary 
business'' is financing and who uses swaps for the purpose of hedging 
named underlying commercial risks related to interest rate and foreign 
currency exposures. As an initial matter, the Commission notes that a 
captive finance subsidiary or other similar entity is required to 
provide financing as its primary business, i.e., this is not a 
supplementary or complementary activity of the entity.\1189\
---------------------------------------------------------------------------

    \1189\ Commenters generally did not focus on this initial 
requirement instead commenting on other issues relating to 
application of the exception.
---------------------------------------------------------------------------

    In connection with the exception, commenters generally focused on 
the second part of Section 1a(33)(D) of the CEA, requesting the CFTC to 
interpret the phrase ``90% or more of which are manufactured by the 
parent company or another subsidiary of the parent company'' to include 
component parts, attachments, systems and other products that may be 
manufactured by others but sold together with the company's products as 
well as attachments and labor costs that are incidental to the primary 
purchase.\1190\
---------------------------------------------------------------------------

    \1190\ See letters from CDEU and Chamber II. Another commenter 
suggested that it should be viewed as a captive finance subsidiary 
of the entities that own it in a cooperative structure. See letter 
from NRU CFC I. This commenter also discussed whether the captive 
finance company exception should be available when it provides 
financing to its member-owners to support their general business 
activities, rather than to finance purchases from its member-owners. 
The CFTC does not believe it would be appropriate to apply the 
captive finance company exception in this situation.
---------------------------------------------------------------------------

    The CFTC believes that the captive finance exception must be 
interpreted in a manner consistent with the intention of Congress. As a 
result, a person that seeks to fall within the exemption must be in the 
``primary business'' of providing financing of purchases from its 
parent company. Consistent with this initial requirement, the CFTC 
maintains that the captive finance exception can be applied when this 
financing activity finances the purchase of the products sold by the 
parent company in a broad sense, including service, labor, component 
parts and attachments that are related to the products.

[[Page 30694]]

L. Implementation Standard, Re-Evaluation Period and Minimum Period of 
Status

1. Proposed Approach
    The proposed rules provided that a person would be deemed to be a 
major participant upon the earlier of: (i) The date on which it submits 
a complete application for registration, or (ii) two months after the 
end of the quarter in which a person meets the definition of major 
participant.\1191\
---------------------------------------------------------------------------

    \1191\ See proposed CFTC Regulation Sec.  1.3(hhh)(3); proposed 
Exchange Act rule 3a67-7(a).
---------------------------------------------------------------------------

    The proposed rules also provided that a person that has met the 
criteria for designation as a major participant as a result of its swap 
or security-based swap activities in a fiscal quarter, but without 
exceeding any applicable threshold by more than 20 percent, would not 
immediately be subject to the timing requirements discussed above. 
Instead, the person would be subject to the timing requirements noted 
above as soon as its daily average swap or security-based swap 
positions over any fiscal quarter exceed any of the applicable daily 
average thresholds.\1192\
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    \1192\ See proposed CFTC Regulation Sec.  1.3(hhh)(4); proposed 
Exchange Act rule 3a67-7(b).
---------------------------------------------------------------------------

    Finally, the proposed rules provided that a person would retain the 
status of a major participant if its swap positions or security-based 
swap positions do not fall below all of the thresholds for four 
consecutive quarters.\1193\ At that time, such entity may de-register 
as a major swap participant or major security-based swap participant.
---------------------------------------------------------------------------

    \1193\ See proposed CFTC Regulation Sec.  1.3(hhh)(5); proposed 
Exchange Act rule 3a67-7(c).
---------------------------------------------------------------------------

2. Commenters' Views
    Some commenters took the view that the time for compliance should 
be more than two months.\1194\ One commenter suggested that entities be 
given the flexibility to have an additional evaluation period if 
abnormal market events or price movements cause the failure of the 
first reevaluation.\1195\ Some commenters further expressed the view 
that the minimum amount of time a person would have to be registered as 
a major participant would be two quarters, rather than four 
quarters.\1196\
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    \1194\ See letters from BlackRock I (requesting that market 
participants have eight months after they have exceeded any of the 
applicable thresholds to complete the registration process and come 
into compliance with applicable rules) and MetLife (suggesting that 
one year would be an adequate amount of time to come into compliance 
with the applicable rules); see also letters from ISDA I (suggesting 
a grace period of three quarters following the effectiveness of the 
proposed rules to permit analysis of whether a person is a major 
participant) and Capital One (recommending establishment of an 18 
month provisional registration period for major participants and for 
dealers, as well as a phase-in period for applicable regulatory 
requirements).
    \1195\ See letter from MFA I.
    \1196\ See, e.g., letters from ACLI, BG LNG I, MetLife and MFA I 
(also suggesting that there be an alternative method of termination 
if an entity falls below an applicable threshold by more than 20 
percent).
---------------------------------------------------------------------------

3. Final Rules
a. Timing
    Consistent with the proposal, the final rules provide that a person 
would be deemed to be a major participant upon the earlier of the date 
on which it submits a complete application for registration, or two 
months after the end of the quarter in which it meets the criteria to 
be a major participant.\1197\ In adopting these rules, the Commissions 
are mindful of commenters' concerns that market entities be given an 
adequate amount of time to come into compliance with the requirements 
applicable to major participants. At the same time, it is important to 
recognize that a person may submit a completed application for major 
participant registration prior to the time in which it must come into 
compliance with the requirements applicable to major 
participants.\1198\ We believe that two months provides a reasonable 
amount of time for a person to submit a completed application for 
registration as a major participant.\1199\
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    \1197\ See CFTC Regulation Sec.  1.3(hhh)(3); Exchange Act rule 
3a67-8(a).
    \1198\ The proposed rules regarding the registration of major 
security-based swap participants would provide that a person who 
files a completed registration application will be conditionally 
registered as a major security-based swap participant for four 
months (unless a person files a certification with the SEC, which 
would extend the conditional registration for an additional 30 
days). See proposed Exchange Act rules 15Fb2-1(d)(1) and 15Fb3-
1(b)(2), 76 FR 65784, 65821, 65823 (Oct. 24, 2012). In other words, 
under this proposal, a person who meets the criteria for being a 
major security-based swap participant may have up to six months, or 
longer, to come into compliance with the requirements applicable to 
major security-based swap participants.
    \1199\ The SEC has estimated that it would take an entity 
approximately one week to be able to complete and file Form SBSE, 
the most complex application form for registration as a major 
security-based swap participant. The other forms for application as 
a major security-based swap participant are simpler, and the SEC 
estimates that they would take less time to complete. See 76 FR at 
65814 at nn.130, 131, 133.
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b. Re-Evaluation Period
    Consistent with the proposal, the final rules provide that if any 
entity meets the criteria for qualifying as a major participant, but 
does not exceed any applicable threshold by more than 20 percent in 
that particular quarter, the entity will not immediately be subject to 
the timing requirements noted above, but will become subject to the 
timing requirements at the end of the next fiscal quarter if such 
entity exceeds any of the applicable daily average thresholds in that 
next fiscal quarter.\1200\ We believe that this standard will 
appropriately help to avoid applying major participant requirements to 
entities that meet the major participant criteria for only a short time 
due to unusual activity.\1201\
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    \1200\ See CFTC Regulation Sec.  1.3(hhh)(4); Exchange Act rule 
3a67-8(b).
    \1201\ While we are mindful that one commenter suggested that 
this standard be extended from one quarter to four quarters, see 
letter from ISDA I, we do not believe that approach would be 
consistent with the goal of not causing persons to become major 
participants as a result of short-term unusual activity.
---------------------------------------------------------------------------

c. Minimum Period of Status
    Consistent with the proposal, the final rules provide that a person 
would retain major participant status until it does not exceed any of 
the applicable thresholds for four consecutive quarters following 
registration.\1202\ We believe that this time period appropriately 
addresses the concern that persons may move in and out of major 
participant status on a rapid basis. While we recognize that some 
commenters requested that this period be reduced to two quarters, we 
believe that a shorter period likely would lead to administrative 
confusion and burdens, as a shorter time period may be expected to lead 
entities to move in and out of major participant status more 
frequently.
---------------------------------------------------------------------------

    \1202\ See CFTC Regulation Sec.  1.3 (hhh)(5); Exchange Act rule 
3a67-8(c).
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M. Calculation Safe Harbor

1. Proposed Approach and Commenters' Views
    In the Proposing Release, we expressed the understanding that only 
a limited number of persons currently have swap or security-based swap 
positions of a size that potentially could cause them to fall within 
the major participant definitions.\1203\ Without disagreeing with that 
view, some commenters expressed concern about the costs and burdens 
associated with performing the applicable calculations on a daily 
basis, particularly citing the calculations' complex nature.\1204\ 
Certain commenters further suggested

[[Page 30695]]

that participants in the swap and security-based swap markets may 
perceive an obligation to conduct the relevant calculations on a daily 
basis even if they are not reasonably likely to be major participants. 
Those commenters requested that the Commission adopt a safe harbor by 
which persons with swap or security-based swap positions below a 
certain notional threshold would not have to perform the major 
participant calculations, or by which persons would not have to perform 
those calculations more than monthly when the results of those 
calculations are significantly below the levels required to be a major 
participant.\1205\
---------------------------------------------------------------------------

    \1203\ For example, in connection with the major security-based 
swap participant definition, we preliminarily estimated that no more 
than ten entities that would not otherwise be security-based swap 
dealers would have uncollateralized mark-to-market positions or 
combined uncollateralized exposure and potential future exposure 
that may rise close enough to the proposed thresholds to necessitate 
monitoring to determine whether they meet those thresholds. See 
Proposing Release, 75 FR at 80207-08.
    \1204\ See letters from MFA I and Vanguard.
    \1205\ See letters from SIFMA AMG I (recommending safe harbor 
when the notional amount of a person's positions is less than the 
applicable thresholds for current uncollateralized exposure plus 
potential future exposure, or when a person's end-of-month analysis 
indicates exposures that are at least 50 percent below the 
definitions' applicable current exposure plus potential future 
exposure thresholds), Association of Institutional Investors 
(``AII'') and Vanguard.
---------------------------------------------------------------------------

2. Final Rule
    We continue to believe that under the rules we are adopting only a 
limited number of persons potentially may be major participants. 
Nonetheless, we recognize the significance of commenter concerns that 
some persons may perceive an obligation to conduct the major 
participant calculations as part of their compliance procedures even 
when there is not a significant likelihood that they would be major 
participants. We thus believe that a safe harbor can promote certainty 
and regulatory efficiency by helping market participants appropriately 
focus their compliance efforts and avoid undue compliance costs in 
circumstances when they would be highly unlikely to be major 
participants.
    Accordingly, the Commissions are adopting a rule to incorporate a 
safe harbor into the major participant analysis. A person may take 
advantage of this safe harbor in any of three situations. First, a 
person will not be deemed to be a major participant if: (i) the express 
terms of the person's arrangements relating to swaps and security-based 
swaps with its counterparties at no time would permit the person to 
maintain a total uncollateralized exposure of more than $100 million to 
all such counterparties, including any exposure that may result from 
the application of thresholds or minimum transfer amounts established 
by credit support annexes or similar arrangements; \1206\ and (ii) the 
person does not maintain notional swap or security-based swap positions 
of more than $2 billion in any major category of swaps or security-
based swaps, or more than $4 billion in aggregate.\1207\
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    \1206\ See CFTC Regulation Sec.  1.3(hhh)(6)(i)(A); Exchange Act 
rule 3a67-8(a)(1)(i).
    \1207\ See CFTC Regulation Sec.  1.3(hhh)(6)(i)(B); Exchange Act 
rule 3a67-8(a)(1)(ii). For purposes of this second condition, the 
measure of swap or security-based swap positions in a major category 
shall include all positions in that major category. This measure 
shall not exclude the hedging or ERISA positions that are excluded 
from the first major participant test.
---------------------------------------------------------------------------

    Alternatively, a person will not be deemed to be a major 
participant if: (i) The express terms of the person's arrangements 
relating to swaps and security-based swaps with its counterparties at 
no time would permit the person to maintain a total uncollateralized 
exposure of more than $200 million to all such counterparties, 
including any exposure that may result from thresholds or minimum 
transfer amounts; \1208\ and (ii) the person performs the major 
participant calculations (e.g., the ``substantial position'' and 
``substantial counterparty exposure'' calculations associated with the 
major participant tests) as of the end of every month, and the results 
of each of those monthly calculations indicate that the person's swap 
or security-based swap positions lead to no more than one-half of the 
level of current exposure plus potential future exposure that would 
cause the person to be a major participant.\1209\
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    \1208\ See CFTC Regulation Sec.  1.3(hhh)(6)(ii)(A); Exchange 
Act rule 3a67-8(a)(2)(i).
    \1209\ See CFTC Regulation Sec.  1.3(hhh)(6)(ii)(B); Exchange 
Act rule 3a67-8(a)(2). In the case of security-based swaps, for 
example, the monthly test must indicate that the person has no more 
than $1 billion in aggregate uncollateralized current exposure plus 
potential future exposure in a major category (equal to one-half the 
thresholds of the first and third major participant tests). A person 
also must have no more than $2 billion in aggregate uncollateralized 
current exposure plus potential future exposure with regard to all 
of its security-based swap positions (equal to one-half the 
thresholds of the second major participant test).
    For purposes of conducting this analysis with regard to 
positions in a major category, if the person is subject to the third 
major participant test (i.e., the person is a highly leveraged 
financial entity that is not subject to bank capital requirements), 
the analysis must account for all of the person's swap or security-
based swap positions in that major category (without excluding 
hedging positions). If the person is not subject to the third major 
participant test (i.e., the person is not ``highly leveraged'' or is 
not a ``financial entity'' potentially subject to the test) the 
analysis may exclude those hedging positions that also are excluded 
from the first major participant test.
    For purposes of conducting this analysis with regard to all of 
its swap or security-based swap positions, the analysis may not 
exclude hedging positions (consistent with the lack of a hedging 
exclusion in the second major participant test).
---------------------------------------------------------------------------

    Finally, a person will not be deemed to be a major participant if 
the person's current uncollateralized exposure is in connection with a 
major category of swaps or security-based swaps is less than $500 
million (or less than $1.5 billion with regard to the rate swap 
category) and the person performs certain modified major participant 
calculations (e.g., the ``substantial position'' and ``substantial 
counterparty exposure'' calculations, simplified based on assumptions 
that are adverse to the person) \1210\ as of the end of every month, 
and the results of each of those monthly calculations indicate that the 
person's swap or security-based swap positions in each major category 
of swaps or security-based swaps are less than one-half of the 
substantial position threshold.\1211\ This test addresses the commenter 
suggestion that a safe harbor be set at one-half of the threshold 
triggering major participant designation.\1212\ In addition, we have 
provided a more simplified alternate version of this test whereby a 
person will not be deemed to be a major participant if its monthly 
calculations indicate that the person's swap or security-based swap 
positions across all major categories of swaps or security-based swaps 
are significantly less than the substantial counterparty exposure 
threshold.\1213\ This alternative provides a simple safe harbor for 
entities to apply without undertaking additional analysis to divide 
their swap or security-based

[[Page 30696]]

swap positions into major categories.\1214\
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    \1210\ See CFTC Regulation Sec.  1.3(hhh)(6))iii)(A); Exchange 
Act rule 3a67-9(a)(3). The simplifications and assumptions applied 
to this portion of the safe harbor include the fact that a person 
must use the exposure reports of its dealer counterparties when 
calculating aggregate uncollateralized outward exposure to such 
entities, and that potential future exposure must be calculated 
without taking into account offsets for clearing, mark-to-market 
margining, or netting.
    \1211\ See CFTC Regulation Sec.  1.3(hhh)(6)(iii)(A); Exchange 
Act rule 3a67-9(a)(3)(i)(A).
    \1212\ As identified above, three commenters requested that the 
Commissions provide a ``safe harbor'' in connection with the status 
of a major participant. See letters from AII, SIFMA AMG II and 
Vanguard. For example, one commenter stated that ``market 
participants that are otherwise required to perform the calculations 
should be able to do so on a less frequent basis if the entity is 
below every applicable threshold by at least 50%.'' See letter from 
SIFMA AMG I at 5.
    \1213\ See CFTC Regulation Sec.  1.3(hhh)(6)(iii)(B); Exchange 
Act rule 3a67-9(a)(3)(i)(B). The thresholds for this version of the 
safe harbor are consistent with the thresholds for the safe harbor 
set forth in CFTC Regulation Sec.  1.3(hhh)(6)(iii)(A) and Exchange 
Act rule 3a67-9(a)(3)(i)(A), other than with respect to interest 
rate swaps. We recognize that the major participant thresholds for 
swaps and security-based swaps across all major categories (i.e., 
substantial counterparty exposure) are much larger than those for 
each individual major category (i.e., substantial position). 
However, given the purposes of the safe harbor, we do not believe 
that it is appropriate to use a higher level for the test related to 
all major categories as compared to the test for each individual 
category.
    \1214\ When calculating its potential future exposure across all 
major swap or security-based swap categories for purposes of this 
portion of the safe harbor, the person must use the same specified 
conversion factor for all swaps or security-based swaps, with such 
factor reflecting the highest risk weight applied to a major 
category of swaps or security-based swaps, as applicable. See CFTC 
Regulation Sec.  1.3(hhh)(6)(iii)(B)(2); Exchange Act rule 3a67-
9(a)(3)(i)(B)(2).
     Also, for all three tests within the safe harbor, the person 
should use the effective notional amount of a position rather than 
the stated notional amount of that position if the stated notional 
amount is leveraged or enhanced by the structure of the position. 
See CFTC Regulation Sec.  1.3(hhh)(6)(iv); Exchange Act rule 3a67-
9(b).
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    In each of these circumstances, we believe that a safe harbor would 
be warranted because it would be sufficiently unlikely that the 
person's swap or security-based swap positions would cause the entity 
to be a major participant.\1215\ The Commissions believe that for 
compliance purposes, persons should be able to rely on the proposed 
safe harbors noted above. This would benefit the swap and security-
based swap marketplace and related market participants by avoiding 
unnecessary costs for various entities that, because of compliance 
concerns, would engage in major participant calculations even though it 
would be very unlikely that the major participant thresholds would be 
met.
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    \1215\ Although commenters suggested a safe harbor based on a 
notional standard or on monthly testing, the rule we are adopting 
also accounts for the maximum exposure that is possible under a 
person's counterparty arrangements (including the aggregate amount 
of thresholds and minimum transfer amounts provided for by the 
applicable credit support annexes). This is intended to better focus 
the application of the safe harbor toward those entities that are 
highly unlikely to be, or become, major participants.
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    The rule further provides that even if a person does not meet the 
conditions required to take advantage of the safe harbor, that fact by 
itself will not lead to a presumption that a person is required to 
perform the calculations required to determine if it is a major 
participant.\1216\ This is consistent with the safe harbor's intent to 
promote certainty and efficiency in compliance efforts. While we are 
not prescribing when a person should perform the major participant 
calculations, participants in the swap and security-based swap markets 
should be mindful that they are responsible for determining whether 
they meet the major participant definitions, and that they will face 
liability if they knowingly or unknowingly meet one of those 
definitions without registering as a major participant.
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    \1216\ See CFTC Regulation Sec.  1.3(hhh)(6)(v); Exchange Act 
rule 3a67-8(c).
---------------------------------------------------------------------------

N. Limited Designation as a Major Swap Participant or Major Security-
Based Swap Participant

1. Proposed Approach
    The ``major swap participant'' and ``major security-based swap 
participant'' definitions provide that the Commissions may designate a 
person as a major participant for a single category of swap or 
security-based swap.\1217\ Unlike the limited designation provisions of 
the dealer definitions, the major participant definitions do not refer 
to limited designations in connection with particular swap and 
security-based swap activities. Also, unlike the dealer definitions 
(which refer to limited designations in connection with a particular 
``type,'' ``class'' or ``category'' of swap or security-based swap), 
the major participant definitions specifically state that a person may 
be designated as a major participant for one or more ``categories'' of 
swap or security-based swap, without being a major participant for all 
``classes'' of swap or security-based swap.
---------------------------------------------------------------------------

    \1217\ See CEA section 1a(33)(C); Exchange Act section 
3(a)(67)(C).
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    The proposal provided that a person who is a major participant in 
general would be considered to be a major participant with respect to 
all categories of swaps or security-based swaps, unless the person's 
designation is limited.\1218\ We further stated that we anticipated 
that a major participant could seek a limited designation at the same 
time as its initial registration or at a later time, and we observed 
the difficulty of setting out the conditions that would allow a person 
to receive a major participant limited designation.\1219\
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    \1218\ See proposed CFTC Regulation Sec.  1.3(hhh)(2); proposed 
Exchange Act rule 3a71-1(c).
    \1219\ See Proposing Release, 75 FR at 80200-80201.
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2. Commenters' Views
    As discussed above, commenters generally addressed concerns 
regarding limited purpose major participant designations in conjunction 
with comments regarding limited purpose dealer designations.\1220\ A 
few comments addressed these issues specifically in the context of the 
major participant definitions.
---------------------------------------------------------------------------

    \1220\ See part II.E.2, supra.
---------------------------------------------------------------------------

    One commenter recommended that persons that exceed the first major 
participant threshold in a major category should presumptively be 
considered a limited major participant only for those categories of 
swaps or security-based swaps for which they crossed the 
threshold.\1221\ Another suggested a similar approach when a major 
participant's swaps are concentrated in one major category.\1222\ Two 
commenters suggested that limited major participant designations should 
not be confined to the proposed major swap categories.\1223\
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    \1221\ See letter from ICI I (recommending that entities that 
exceed the thresholds of the first major participant test be 
registered as major participants only for the relevant major 
category, while those entities qualifying as major participants 
under the other tests would be designated as major participants for 
all categories, but would still be able to apply for limited 
designations).
    \1222\ See letter from BG LNG I (recommending that if 50 percent 
of a major participant's swaps fall within one category of swaps, 
and its swaps in other categories would not separately exceed any of 
the proposed thresholds, that should be presumed to be a major 
participant for only that one category of swap).
    \1223\ See letters from BG LNG I (specifically addressing energy 
firms); and NCGA/NGSA I (asserting that while the major participant 
definition is to be based on the major categories, the limited 
designations should be based on a finer set of categories).
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3. Final Rules and General Principles Applicable to Limited Major 
Participant Designations
    Consistent with the proposal, the final rules retain the 
presumption that a person that meets one of the major participant 
definitions will be deemed to be a major participant in connection with 
all categories of swaps or security-based swaps.\1224\ As discussed in 
the Proposing Release, a person may apply for a limited designation 
when it submits a registration application, or later.\1225\ The final 
rules also contain one change from the proposal, in that the provisions 
of the final rules related to limited major participant designation do 
not refer to the major participant's activities in connection with 
swaps or security-based swaps, in contrast to the proposal, because the 
relevant statutory provisions do not refer to limited designations 
related to activities.
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    \1224\ See CFTC Regulation Sec.  1.3(hhh)(2); Exchange Act rule 
3a71-1(c).
    \1225\ See Proposing Release, 75 FR at 80200. The SEC expects to 
address the process for submitting an application for limited 
designation as a major security-based swap participant, along with 
principles to be used by the SEC in analyzing such applications, as 
part of separate rulemakings.
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    Many of the principles discussed above in the context of limited 
designation of dealers also are relevant to the limited designation of 
major participants. Significantly, as with limited dealer designations, 
it is appropriate for major participants to be subject to a default 
presumption that they should be regulated as major

[[Page 30697]]

participants for all of their swaps or security-based swaps.\1226\
---------------------------------------------------------------------------

    \1226\ See part II.E.3.a, supra, discussing the statutory and 
policy basis for this presumption.
---------------------------------------------------------------------------

    Although a commenter suggested that different principles should 
apply in the context of the first major participant test \1227\--which 
is based on an entity's swap or security-based swap position in a 
single major category--we do not concur. The substantive requirements 
applicable to major participants do not contemplate treating entities 
that exceed the first and third thresholds of the major participant 
definition differently than those exceeding the second threshold. 
Instead, those requirements indicate that each entity that falls within 
the major participant definition must comply with registration and 
other substantive requirements triggered by such designation for all of 
its swap or security-based swap positions and activities. This 
conclusion also is supported by the fact that the limited designation 
authority provided to the Commissions is permissive rather than 
mandatory, and by the challenges of demonstrating compliance with the 
substantive requirements applicable to major participants in the 
context of a limited designation.
---------------------------------------------------------------------------

    \1227\ See letter from ICI I.
---------------------------------------------------------------------------

    Indeed, as with limited dealer designation, one of the key 
requirements to overcoming the default presumption of full designation 
is an applicant's ability to comply with major participant regulation 
in the context of a limited designation. As with limited dealer 
designation, the Commissions will not designate a person as a limited 
purpose major participant unless the person can demonstrate compliance 
with the statutory and regulatory requirements applicable to major 
participants. Accordingly, an applicant to limited purpose designations 
must not only demonstrate the ability to comply with the transaction-
level major participant requirements (e.g., certain business conduct 
standards and requirements related to trading records, documentation 
and confirmations) in the context of a limited designation, but also to 
entity-level major participant requirements (e.g., requirements related 
to registration, capital, risk management, supervision, and chief 
compliance officer).

V. Commission Staff Reports

    To review and evaluate the operation of the ``swap dealer,'' 
``security-based swap dealer,'' ``major swap participant'' and ``major 
security-based swap participant'' definitions, the CFTC and SEC are 
directing their respective staffs to undertake future studies regarding 
the rules being adopted in connection with these definitions and the 
related interpretations. These studies will include the analysis of 
market data and the input of public comment.
    The CFTC staff is further directed to report the results of this 
study to the CFTC on a date that is no later than 30 months following 
the date that a swap data repository first receives swap data under the 
CFTC's regulations.\1228\ The SEC staff is further directed to report 
the results of this study to the SEC no later than three years 
following the later of: (i) the last compliance date for the 
registration and regulatory requirements for security-based swap 
dealers and major security-based swap participants under Section 15F of 
the Exchange Act; and (ii) the first date on which compliance with the 
trade-by-trade reporting rules for credit-related and equity-related 
security-based swaps to a registered security-based swap data 
repository is required.\1229\ These staff reports will be made 
available for public comment.
---------------------------------------------------------------------------

    \1228\ The CFTC has designated a period of 30 months to ensure 
that the report reflects two years of security-based swap 
transaction data, and six months for the staff to analyze the data 
and prepare the report. The Commissions expect that swap data 
repositories and security-based swap data repositories will begin to 
receive data at different times. Currently, swap data repositories 
are expected to begin to receive swap data approximately 60 days 
after publication of the rules further defining the term ``swap.'' 
See CFTC, Final Rule: Swap Data Recordkeeping and Reporting 
Requirements, 77 FR 2136 (Jan. 13, 2012); CFTC, Final Rule: Swap 
Data Repositories: Registration Standards, Duties and Core 
Principles, 76 FR 54538 (Sept. 1, 2011). The SEC has not yet adopted 
final rules for the receipt of security-based swap data by security-
based swap data repositories. Because of this difference, the timing 
of the changes to the de minimis thresholds for swaps and security-
based swaps will be different.
    \1229\ The SEC has designated a period of three years to ensure 
that the report reflects two years of security-based swap 
transaction data, and one year for the staff to analyze the data and 
prepare the report.
---------------------------------------------------------------------------

A. Objectives of the CFTC Staff Report

    In general, the CFTC's staff report--together with the associated 
public comment--is intended to help the CFTC thoroughly evaluate the 
practical implications and effects of the ``swap dealer'' and ``major 
swap participant'' definitions following the regulation of dealers and 
major participants under Title VII. In addition, the staff report is 
intended to assist the CFTC in evaluating whether new or revised tests 
or approaches would be appropriate for identifying swap dealers and 
major swap participants or for providing greater clarity as to whether 
particular entities do or do not fall within these definitions. The 
staff report is also intended to assist the CFTC more specifically in 
evaluating the potential implications of terminating the phase-in 
thresholds associated with the de minimis exception to the definition 
of a ``swap dealer.''
    To this end, the staff report generally should review each 
significant aspect of the rules being adopted in connection with the 
definitions and related interpretations. With respect to the ``swap 
dealer'' definition, such aspects include: (i) the factors associated 
with the definition (including the application of the dealer-trader 
distinction for identifying swap dealing activity); (ii) the extent of 
the exclusion of swaps entered into in connection with the origination 
of loans; (iii) the exclusion of certain swaps from the dealer analysis 
(i.e., swaps between affiliated parties, swaps between a cooperative 
and its members and swaps entered into for the purpose of hedging as 
defined in the rule); and (iv) the tests and thresholds used to 
implement the de minimis exception. With respect to the ``major swap 
participant'' definition, such aspects include: (i) The tests and 
thresholds associated with the ``substantial position'' definition; 
(ii) the definition of ``hedging or mitigating commercial risk''; (iii) 
the tests and thresholds associated with the ``substantial counterparty 
exposure'' definition; and (iv) the definition of ``highly leveraged''.
    To facilitate this review, the CFTC staff report should address--as 
may be practicable in light of the data made available under the swap 
regulatory reporting regime or otherwise--a range of descriptive 
analytics that may be helpful in characterizing the nature of the swap 
market, its participants, and their activities. Such descriptive 
analytics could help inform the CFTC as to how the definitions in the 
final rules are being applied in practice and whether any adjustments 
to such definitions should be considered. For example, these analytics 
could indicate whether the population of registered swap dealers and 
major swap participants is substantially larger or smaller than 
expected, and, to some extent, what elements of the definitions are 
responsible for any significant differences. These analytics could also 
illuminate dynamics in the market that may require new or different 
treatment in the definitions. These analytics may also assist the CFTC 
in considering whether it would be practical and appropriate to apply 
new or different objective and readily verifiable tests or standards 
for determining whether particular entities are or are not swap dealers 
or major swap participants,

[[Page 30698]]

including through the possible use of safe harbors, presumptions, 
thresholds, or defaults based on these tests or standards.
    Depending on the availability and reliability of data and the 
developments in the market and regulatory framework, among other 
factors, the CFTC staff report could consider: how swaps differ among 
registered swap dealers, registered major swap participants and 
unregistered entities; differences among swaps in the major swap 
categories; differences among swap dealing activity of entities at 
various levels, including around the de minimis threshold; and 
estimates of quantitative information regarding use of swaps, including 
notional values, effective notional values, and collateralized and 
uncollateralized exposure.
    The CFTC staff report should also address, as may be practicable, 
the nature and extent of the impact that the final rules and 
interpretations implementing the definitions have had on certain 
aspects of the swap market. Depending on the available information and 
other factors, the CFTC staff report could address the impact of these 
final rules and interpretations on competition in the swap market, 
market participants' ability to enter into swaps with various 
registered and unregistered entities, including IDIs, and the terms of 
swaps.

B. Objectives of the SEC Staff Report

    In general, the report of the SEC staff--together with the 
associated public comment--is intended to help the SEC thoroughly 
evaluate the practical implications and effects of the dealer and major 
participant definitions following the regulation of dealers and major 
participants pursuant to Title VII. In addition, the staff report is 
intended to assist the SEC in evaluating whether new or revised tests 
or approaches would be appropriate for identifying dealers and major 
participants or for providing greater clarity as to whether particular 
entities do or do not fall within these definitions. The staff report 
also is intended to assist the SEC more specifically in evaluating 
whether it is necessary or appropriate to set higher or lower 
thresholds for the de minimis exception to the definition of 
``security-based swap dealer.''
    To this end, the staff report generally should review each 
significant aspect of the rules being adopted in connection with the 
definitions and related interpretations. With respect to the security-
based swap dealer definition, such aspects include: (i) The factors 
associated with the definition (including the application of the 
dealer-trader distinction for identifying dealing activity); (ii) the 
exclusion of inter-affiliate transactions from the dealer analysis 
(including the provisions limiting that exclusion to transactions among 
majority-owned affiliates); and (iii) the tests and thresholds used to 
implement the de minimis exception. With respect to the major security-
based swap participant definition, such aspects include: (i) The tests 
and thresholds associated with the ``substantial position'' and 
``substantial counterparty exposure'' definitions; (ii) the definition 
of ``hedging or mitigating commercial risk'' (including whether the 
definition inappropriately permits the exclusion of certain positions 
from the first test of the major participant definitions, and whether 
the continued availability of the exclusion should be conditioned on 
assessments of hedging effectiveness and related documentation); (iii) 
the definition of ``highly leveraged''; and (iv) the exclusion of 
inter-affiliate transactions from the major participant analysis 
(including the provision limiting that exclusion to transactions among 
majority-owned affiliates).

C. Descriptive Analytics in the SEC Report

    To facilitate this review, the report of the SEC staff should 
address--as may be practicable in light of the data made available 
under the applicable regulatory reporting regime or otherwise \1230\--a 
range of descriptive analytics that may be helpful in characterizing 
the nature of the security-based swap market, as well as entities 
within that market and those entities' activities. Such descriptive 
analytics could help inform the SEC as to how the definitions in the 
final rules are being applied in practice and whether any adjustments 
to such definitions should be considered. For example, these analytics 
could indicate whether the populations of dealers and major 
participants are substantially larger or smaller than expected, and, to 
some extent, what elements of the definitions are responsible for any 
significant differences. These analytics could also illuminate dynamics 
in the security-based swap market that may require new or different 
treatment in the definitions. For example, the analytics could indicate 
that the activity in certain segments of the security-based swap 
market--e.g., equity swaps--has significantly increased or decreased 
since the adoption of the final rules. These analytics may also assist 
the SEC in considering whether it would be practical and appropriate to 
apply new or different objective and readily verifiable tests or 
standards for determining whether particular entities are or are not 
dealers or major participants, including through the possible use of 
safe harbors, presumptions, thresholds or defaults based on these tests 
or standards.
---------------------------------------------------------------------------

    \1230\ The Dodd-Frank Act mandates that market participants 
publicly report certain security-based swap transaction and pricing 
data. See Exchange Act section 13(m). The SEC has proposed rules to 
implement these requirements, which will give the Commissions and 
the general public additional insight into the security-based swap 
markets. See Regulation SBSR--Reporting and Dissemination of 
Security-Based Swap Information, 75 FR 75208 (Dec. 2, 2010).
---------------------------------------------------------------------------

    The precise nature of the descriptive analytics included in the SEC 
staff report of course will depend on a number of considerations, 
including the availability and reliability of data and the developments 
in the market and regulatory framework. However, some salient 
candidates for descriptive analysis that could be considered at the 
time of the staff report include:
     Characteristics of, and differences among, the security-
based swap transactions and positions of three segments of participants 
in those respective markets--registered dealers, any registered major 
participants, and unregistered entities.\1231\
---------------------------------------------------------------------------

    \1231\ Such characteristics could include: (i) The types of 
market participants in each segment; (ii) their activity and 
positions (in terms of notional value, number of transactions, 
average aggregate uncollateralized outward exposures, and average 
aggregate potential outward exposure); (iii) the type and number of 
their counterparties (including the registered/unregistered status 
of such counterparties); and (iv) a network analysis of the 
concentration of activity by counterparty.
---------------------------------------------------------------------------

     Characteristics of, and differences among, security-based 
swap transactions and positions connected with the broad product 
segments identified in the final rules (e.g., credit default swaps and 
other security-based swaps).\1232\
---------------------------------------------------------------------------

    \1232\ Such characteristics could include: (i) The types of 
market participants in each segment, including their registration 
status; (ii) the amount of their activity (in terms of notional 
value and number of transactions); and (iii) the type and number of 
their counterparties.
---------------------------------------------------------------------------

     Characteristics of, and differences among, the apparent 
dealing activity of entities at various levels (including the $3 
billion and $150 million de minimis levels established in the final 
rule in connection with the security-based swap dealer definition) 
based on their transactions and positions; \1233\
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    \1233\ Such characteristics could include a range of 
quantitative criteria indicative of apparent dealing activity, 
similar in some respects to the approach taken in the CDS Data 
Analysis. Differences that could be reviewed include variations in 
the number and size of trades and counterparties.

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[[Page 30699]]

     Characteristics of the security-based swap trading 
activity of ``special entities''; \1234\
---------------------------------------------------------------------------

    \1234\ Such characteristics could include: (i) The size and 
nature of their counterparties; (ii) the registration status of 
their counterparties; and (iii) the size and number of their 
transactions.
---------------------------------------------------------------------------

     Characteristics of entities entering and exiting the 
security-based swap markets, using a variety of baselines; \1235\
---------------------------------------------------------------------------

    \1235\ Such characteristics could include: (i) The extent to 
which those entities bear indicia of dealing activity, including 
those identified in the CDS Data Analysis; and (ii) the extent to 
which those entities have registered as security-based swap dealers. 
Potential baseline could include, for example: (i) The adoption of 
these final rules; (ii) December 31, 2011, the end of the time 
period considered by the CDS Data Analysis; and (iii) the last 
effective date of the registration and regulatory requirements for 
security-based swap dealers and major security-based swap 
participants under Section 15F of the Exchange Act.
---------------------------------------------------------------------------

     Estimates of security-based swap entities' current 
uncollateralized exposure and potential future exposure at various 
levels of security-based swap positions; \1236\ and
---------------------------------------------------------------------------

    \1236\ Such estimates could be useful in ascertaining the 
application of the various ``substantial position'' thresholds used 
in connection with the ``major security-based swap participant'' 
definition.
---------------------------------------------------------------------------

     Estimates of security-based swap entities' ratios of total 
liabilities to equity.\1237\
---------------------------------------------------------------------------

    \1237\ Such estimates could be useful in connection with 
evaluating the operation of the third prong of the major participant 
definition.
---------------------------------------------------------------------------

D. Additional Analyses in the SEC Staff Report

    To further facilitate this review, the SEC staff report should also 
address, as may be practicable, the nature and extent of the impact 
that the final rules and interpretations implementing the definitions 
have had on certain aspects of the security-based swap market. However, 
many economic, regulatory, and other factors--both related and 
unrelated to the implementation of Title VII--could impact the market 
going forward. The extent to which the staff report will be able to 
provide retrospective analyses regarding the effect of the definitions 
on the security-based swap markets (and the robustness of any such 
analysis) in significant part will be based on the nature and role of 
future exogenous factors that have also affected the market. Depending 
on these future factors and the potential challenges associated with 
addressing them in the staff reports, some salient candidates for 
retrospective impact analysis that could be considered at the time of 
the report include:
     Effects on competition. The report may be able to explore 
connections between the definitions and the entry and exit of various 
entities in the security-based swap markets. For example, to what 
extent is an entity's entry or exit correlated with its registration 
status or its approaching or crossing any of the thresholds established 
by the definitions (e.g., the de minimis thresholds for dealers or the 
``substantial position'' thresholds for major participants)? Has the 
current concentration of the dealer market dissipated, persisted, or 
strengthened over time? \1238\
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    \1238\ See notes 478 through 485 and accompanying text, supra.
---------------------------------------------------------------------------

     Effects on investor protection. The report may be able to 
explore connections between the definitions and the nature and scope of 
transactions with certain classes of counterparties. For example, to 
what extent do unregistered entities in the security-based swap markets 
transact with counterparties such as ``special entities,'' natural 
persons, small businesses, or commercial entities? Have the nature and 
scope of trades by special entities or other classes of counterparties 
changed since 2011? Have unregistered entities--such as dealers 
operating under the de minimis threshold--emerged to engage in 
transactions with special entities or other particular classes of 
counterparties?
     Effects on access. The report may be able to explore 
connections between the definitions and the ability of certain classes 
of counterparties to access products in the security-based swap market. 
For example, to what extent is an entity's registration status or its 
approaching or crossing any of the thresholds established by the 
definitions correlated with the entity ceasing transactions with 
certain classes or sizes of counterparties?
     Effects of the dealer-trader distinction. The report may 
be able to explore connections between market dynamics and quantifiable 
metrics indicative of dealing activity. For example, are there 
identifiable, objective differences between the registered security-
based swap dealers and unregistered market participant populations in 
terms of number of counterparties, buy/sell ratios, posting of initial 
margin, concentrations by counterparty or otherwise? If so, how does 
the amount of the activity (in terms of notional value and number of 
transactions) of those entities change when they move above or below 
the thresholds implied by those differences? How do the characteristics 
of their counterparties (in terms of number and nature) change?
     Effects of de minimis thresholds. The report may be able 
to explore connections between market dynamics and the de minimis 
thresholds established by the definitions. For example, how does the 
amount of the activity (in terms of notional value and number of 
transactions) of security-based swap entities change when they move 
above or below the de minimis thresholds? How do the characteristics of 
their counterparties (in terms of number and nature) change?
     Effects of major participant thresholds. The report may be 
able to explore connections between market dynamics and the major 
participant thresholds established by the definitions. For example, how 
have total notional security-based swap positions changed over time for 
large market participants that are not registered and that do not bear 
any indicia of dealing activity? For those large participants, have 
overall notional levels moved toward, or away from, the levels required 
to trigger the major participant thresholds?
     Other effects of the definitions. To what extent do 
entities registered security-based swap dealers have overall trading 
characteristics suggesting that they may not be dealers? To what extent 
have entities not registered as dealers have trading characteristics 
suggesting that they may be acting as dealers? In either case, do any 
discrepancies between firms' registration status and their trading 
characteristics suggest any gaps or areas of uncertainty regarding the 
scope of the dealer definitions that may require potential 
modifications?

VI. Effective Date and Implementation

    Consistent with sections 754 and 774 of the Dodd-Frank Act, these 
final rules will be effective on 60 days following publication in the 
Federal Register. The Commissions, however, are providing for a phase-
in period for persons engaged in dealing activity below certain 
amounts.
    If any provision of these joint rules, or the application thereof 
to any person or circumstance, is held to be invalid, such invalidity 
shall not affect other provisions or application of such provisions to 
other persons or circumstances that can be given effect without the 
invalid provision or application.

A. CEA Rules

    As explained below and as noted elsewhere in this Adopting Release, 
the compliance date for various regulatory requirements is contingent 
upon the adoption and effectiveness of other,

[[Page 30700]]

related, regulatory provisions and definitions. Because the CFTC 
believes that the suite of rules implementing the Dodd-Frank Act are 
complex and interconnected, it has determined that implementation in 
certain cases can best be accomplished through separate rulemakings. 
The Commissions received comments related to implementation and phase-
in that largely resulted from the CFTC's re-opening of the comment 
period for several rulemakings, and a request for comment on the order 
in which it should consider final rulemakings made under the Dodd-Frank 
Act.\1239\ The CFTC notes that swap dealers and major swap participants 
will require an implementation or compliance period based on separate 
registration and regulatory requirements that are the subject of 
separate rulemakings by the Commission.\1240\
---------------------------------------------------------------------------

    \1239\ See CFTC, Reopening and Extension of Comment Periods for 
Rulemakings Implementing the Dodd-Frank Wall Street Reform and 
Consumer Protection Act, 76 FR 25274 (May 4, 2011).
    \1240\ See CFTC, Final Rule: Registration of Swap Dealers and 
Major Swap Participants, 775 FR 713792613 (Jan. 19, 2012).
---------------------------------------------------------------------------

    As the CFTC stated recently in another rulemaking related to CPOs:

[while t]he [CFTC] recognizes that entities will need time to come 
into compliance with the [CFTC]'s regulations * * * [b]ased on the 
comments received indicating that a certain portion of entities 
currently claiming relief [from CPO registration] under Sec.  
4.13(a)(4) already have robust controls in place independent of 
[CFTC] oversight, the [CFTC] believes that entities currently 
claiming relief under Sec.  4.13(a)(4) should be capable of becoming 
registered and complying with the [CFTC]'s regulations within 12 
months following the issuance of the final rule. For entities that 
are formed after the effective date of the rescission, the 
Commission expects the CPOs of such entities to comply with the 
Commission's regulations upon formation and commencement of 
operations.\1241\
---------------------------------------------------------------------------

    \1241\ CPO/CTA Compliance Release at 11265.

    The Commissions are taking the same approach with respect to 
implementing CFTC Regulations Sec. Sec.  1.3(m)(5) and 1.3(m)(6). The 
loss of ECP status for Forex Pools currently operating other than 
pursuant to the retail forex regime of a federal regulator described in 
CEA section 2(c)(2)(E)(i) \1242\ may involve significant structural and 
operational changes. The loss of a commodity pool's ability to rely on 
CEA section 1a(18)(A)(v) if it does not fall within CEA section 
1a(18)(A)(iv) may require significant structural and operational 
changes. Because additional time may enable a Forex Pool affected by 
CFTC Regulation Sec.  1.3(m)(5) to restructure to avoid being subject 
to the retail forex regime (e.g., by redeeming U.S. non-ECP 
participants) and may allow a commodity pool affected by CFTC 
Regulation Sec.  1.3(m)(6) time to satisfy the terms of CEA section 
1a(18)(A)(iv) (e.g., by the pool's CPO registering as such or claiming 
an exemption therefrom or by the pool raising its level of total assets 
above $5 million), the Commissions are delaying the effective date of 
CFTC Regulations Sec. Sec.  1.3(m)(5) and 1.3(m)(6) until December 31, 
2012, which is the compliance date for commodity pools no longer 
permitted to claim exemption from CPO registration pursuant to recently 
withdrawn CFTC Regulation 4.13(a)(4).\1243\
---------------------------------------------------------------------------

    \1242\ 7 U.S.C. 2(c)(2)(E)(i).
    \1243\ See CPO/CTA Compliance Release.
---------------------------------------------------------------------------

    CFTC Regulation Sec.  1.3(m)(8) conditions ECP status in part on a 
requirement that a commodity pool be ``formed and operated'' by a 
registered CPO or by a CPO who is exempt from registration as such 
pursuant to CFTC Regulation Sec.  4.13(a)(3). Due to the revocation of 
CFTC Regulation Sec.  4.13(a)(4), the Commissions anticipate that many 
CPOs will be registering as such in the future. However, the compliance 
date for registration for CPOs required to register as such due to the 
withdrawal of CFTC Regulation Sec.  4.13(a)(4) is December 31, 2012. 
Furthermore, such CPOs may have formed the commodity pools that they 
currently operate when such CPOs were not registered as such.
    Consequently, compliance with the formation element of CFTC 
Regulation Sec.  1.3(m)(8)(iii) is not required with respect to a 
commodity pool formed prior to December 31, 2012. To be clear, however, 
while pools in existence before December 31, 2012 need not have been 
formed by a registered CPO, or by a CPO who is exempt from registration 
as such pursuant to CFTC Regulation Sec.  4.13(a)(3), in order to 
satisfy the formation aspect of CFTC Regulation Sec.  1.3(m)(8)(iii), 
such commodity pools nevertheless must be operated by a registered CPO, 
or by a CPO who is exempt from registration as such pursuant to CFTC 
Regulation Sec.  4.13(a)(3), on December 31, 2012 to satisfy the 
``operated by a registered CPO'' element of CFTC Regulation Sec.  
1.3(m)(8)(iii).

B. Exchange Act Rules

    Because the SEC has not yet promulgated final rules implementing 
the substantive requirements imposed on dealers and major participants 
by Title VII of the Dodd-Frank Act, persons determined to be dealers or 
major participants under the regulations adopted in this Adopting 
Release need not register as such until the dates provided in the SEC's 
final rules regarding security-based swap dealer and major security-
based swap participant registration requirements, and will not be 
subject to the requirements applicable to those dealers and major 
participants until the dates provided in the applicable final 
rules.\1244\
---------------------------------------------------------------------------

    \1244\ See Securities Exchange Act Release No. 64678 (June 15, 
2011), 76 FR 36287 (June 22, 2011) (``Effective Date Release'') 
(granting exemptive relief and providing guidance in connection with 
Exchange Act provisions concerning security-based swaps that were 
added or amended by Title VII).
---------------------------------------------------------------------------

    Moreover, as discussed above in the context of the de minimis 
exception to the security-based swap dealer definition,\1245\ the SEC 
is making an extended compliance period available to persons engaged in 
dealing activity involving credit default swaps between $3 billion and 
$8 billion in trailing annual notional amount, and to persons engaged 
in dealing activity involving other types of security-based swaps 
between $150 million and $400 million in trailing annual notional 
amount. Persons taking advantage of that extended compliance period 
will be deemed not to be security-based swap dealers during that 
period, and will not be subject to registration requirements and other 
requirements associated with status as a security-based swap dealer 
during that period.
---------------------------------------------------------------------------

    \1245\ See part II.D.5, supra.
---------------------------------------------------------------------------

    The SEC previously provided limited exemptive relief in connection 
with Exchange Act section 6(l),\1246\ added by the Dodd-Frank Act, 
which prohibits any person from effecting a security-based swap 
transaction with a person that is not an ECP, unless effected on a 
national securities exchange. That relief expires as of the effective 
date of final rules further defining ECP.\1247\ Accordingly, following 
the effective date of these final rules, dealers and major 
participants--and all other persons--will be subject to the prohibition 
of section 6(l) under the definition of ECP as amended by Title VII and 
as further defined by the rules.\1248\
---------------------------------------------------------------------------

    \1246\ 15 U.S.C. 78f(l).
    \1247\ See Effective Date Release, 76 FR at 36307.
    \1248\ Because the exemptive relief that the SEC granted in 
connection with section 6(l) will expire as of the effectiveness of 
the ECP definition, the relief that the SEC provided from the 
rescission provisions of Exchange Act section 29(b) in connection 
with section 6(l) also will expire at that time. See id.

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[[Page 30701]]

VII. Administrative Law Matters--CEA Revisions (Definitions of ``Swap 
Dealer'' and ``Major Swap Participant,'' and Amendments to Definition 
of ``Eligible Contract Participant'')

A. Regulatory Flexibility Act

    The Regulatory Flexibility Act (``RFA'') requires Federal agencies 
to consider the impact of its rules on ``small entities.'' \1249\ A 
regulatory flexibility analysis or certification typically is required 
for ``any rule for which the agency publishes a general notice of 
proposed rulemaking pursuant to'' the notice-and-comment provisions of 
the Administrative Procedure Act, 5 U.S.C. 553(b).\1250\ In its 
proposal, the CFTC stated that ``[t]he rules proposed by the CFTC 
provide definitions that will largely be used in future rulemakings and 
which, by themselves, impose no significant new regulatory 
requirements. Accordingly, the Chairman, on behalf of the CFTC, hereby 
certifies pursuant to 5 U.S.C. 605(b) that the proposed rules will not 
have a significant economic impact on a substantial number of small 
entities.''\1251\
---------------------------------------------------------------------------

    \1249\ 5 U.S.C. 601 et seq.
    \1250\ 5 U.S.C. sections 601(2), 603, 604 and 605.
    \1251\ 75 FR 80203.
---------------------------------------------------------------------------

    In response to the Proposing Release, one commenter stated that the 
CFTC's ``rule-makings [are] an accumulation of interrelated regulatory 
burdens and costs on non-financial small entities like the NFPEEU 
members, who seek to transact in energy commodity swaps only to hedge 
the commercial risks of their not-for-profit public service 
activities.'' \1252\ In general, the commenter said that since the 
Small Business Administration (``SBA'') has determined that many rural 
electric cooperatives are ``small entities'' for purposes of the RFA, 
if the definition of swap dealer were to cover a substantial number of 
rural electric cooperatives the rule further defining swap dealer may 
have a significant economic impact on a substantial number of small 
entities.\1253\ Thus, the commenter concluded that the CFTC should 
conduct a regulatory flexibility analysis for each of its rulemakings 
under the Dodd-Frank Act, including this rulemaking.
---------------------------------------------------------------------------

    \1252\ See letter from NFPEEU.
    \1253\ See letter from NFPEEU and meeting with NFPEEU on January 
19, 2011.
---------------------------------------------------------------------------

    The commenter also said that the requirement in section 2(e) of the 
CEA, as amended by the Dodd-Frank Act, that a person who is not an ECP 
must execute swaps on a designated contract market would have the 
potential to have a significant economic impact on a substantial number 
of small entities if a substantial number of rural electric 
cooperatives were not covered by the definition of ECP.\1254\ Another 
commenter said that in considering the economic impact on small 
entities of the swap dealer definition rules, the CFTC should consider 
whether the availability and cost of swaps to small entities could be 
affected by potential uncertainty among persons who engage in the 
activities covered by the definition about whether they are required to 
register as swap dealers.\1255\
---------------------------------------------------------------------------

    \1254\ See letter from NFPEEU.
    \1255\ See letter from Dominion Resources.
---------------------------------------------------------------------------

    The commenters did not provide specific information on how the 
further defining swap dealer would have a significant economic effect 
on a substantial number of small entities. Nonetheless, the CFTC has 
reevaluated this rulemaking in light of the statements made to it by 
these commenters. After further consideration of those statements, the 
CFTC has again determined that this final rulemaking will not have a 
significant economic effect on a substantial number of small 
businesses. With regard to the definition of swap dealer, the CFTC 
expects that if any small entity were to engage in the activities 
covered by the definition, most such entities would be eligible for the 
de minimis exception from the definition.\1256\ Additionally, the 
Commission does not expect that the small entities identified by NFPEEU 
will be subject to registration with the Commission as a major swap 
participant, as most entities with total electric output not exceeding 
4 million megawatt hours are not expected to maintain outstanding swap 
positions that would exceed the applicable thresholds. In general, the 
major swap participant definition applies only to persons with very 
large swap positions, and therefore the definition of major swap 
participant is incompatible with small entity status.
---------------------------------------------------------------------------

    \1256\ The number of small entities that could conceivably be 
covered by the definition of swap dealer is likely to be further 
reduced if transactions between entities described in section 201(f) 
of the Federal Power Act (which generally includes rural electric 
cooperatives) are exempted from the requirements of the CEA, as 
contemplated by section 4(c)(6) of the CEA.
---------------------------------------------------------------------------

    With regard to the definition of ECP, the CFTC notes that the costs 
of executing swaps on a designated contract market raised by the 
commenter arise from a requirement of the CEA, and not from any rule 
promulgated by the CFTC. Last, regarding the comment that there may be 
an economic impact on small entities in terms of the availability and 
cost of swaps, the definition of swap dealer is being adopted to limit 
uncertainty with respect to which entities will be required to register 
as a swap dealer. Thus, the definition of swap dealer is intended to 
avoid creating the substantial economic effect which concerns the 
commenter.
    Accordingly, the Chairman, on behalf of the CFTC, certifies, 
pursuant to 5 U.S.C. 605(b), that the actions to be taken herein will 
not have a significant economic impact on a substantial number of small 
entities.

B. Paperwork Reduction Act

    The Paperwork Reduction Act (``PRA'') \1257\ imposes certain 
requirements on Federal agencies in connection with their conducting or 
sponsoring any collection of information as defined by the PRA. The 
Proposing Release stated that the proposed rules would not impose any 
new recordkeeping or information collection requirements, or other 
collections of information that require approval of the Office of 
Management and Budget (``OMB'') under the PRA, and invited public 
comment on the accuracy of the CFTC's estimate that no additional 
recordkeeping or information collection requirements or changes to 
existing collection requirements would result from the proposed 
rules.\1258\
---------------------------------------------------------------------------

    \1257\ 44 U.S.C. 3501 et seq.
    \1258\ 75 FR 80203.
---------------------------------------------------------------------------

    One commenter said that the regulatory requirements imposed on swap 
dealers and major swap participants (including swap end users that may 
potentially be misclassified as swap dealers or major swap 
participants) will entail reporting and record keeping 
requirements.\1259\ Specifically, the commenter noted that the CFTC 
stated in the Proposing Release that ``any entity determined to be a 
swap dealer or major swap participant would be subject to registration, 
margin, capital, and business conduct requirements * * * all activities 
that will have associated reporting and additional recordkeeping 
requirements.'' \1260\ Another commenter said that the CFTC should 
consider the implications under the PRA of all of its rulemakings under 
the Dodd-Frank Act as a whole.\1261\
---------------------------------------------------------------------------

    \1259\ See letter from Dominion Resources.
    \1260\ See id. at 6.
    \1261\ See letter from NFPEEU.
---------------------------------------------------------------------------

    As with the proposed rules, these final rules will not impose any 
new information collection requirements that require approval of OMB 
under the PRA. All reporting and recordkeeping

[[Page 30702]]

requirements applicable to swap dealers and major swap participants 
instead result from other rulemakings, for which the CFTC has sought 
OMB approval. The CFTC submitted an information collection request to 
OMB for each proposed rulemaking containing reporting or recordkeeping 
requirements, including the recordkeeping and reporting requirements 
referenced by the first commenter,\1262\ which estimated the 
implications of the proposed collections on prospective 
respondents.\1263\
---------------------------------------------------------------------------

    \1262\ See, e.g., 75 FR 71379, 71386 (Nov. 23, 2010) (proposed 
registration rules); 75 FR 70881, 70884 (Nov. 19, 2010), 75 FR 
71397, 71401 (Nov. 23, 2010), 75 FR 71391, 71394 (Nov. 23, 2010), 75 
FR 80638, 80656 (Dec. 22, 2010), and 76 FR 33066, 33076 (Jun. 7, 
2011); and 76 FR 27802, 27819 (May 12, 2011) (collectively, the 
information collection requests for the proposed business conduct 
rules).
    \1263\ See 44 U.S.C. 3506 (PRA program requirements) and 3507 
(PRA submission requirements).
---------------------------------------------------------------------------

    Moreover, in appropriate rulemakings, the CFTC sought to rely upon 
information collections that already had been proposed, in order to 
avoid imposing unnecessary additional burdens upon prospective 
respondents.\1264\ Parties wishing to review the CFTC's information 
collections on a global basis may do so at www.reginfo.gov, at which 
OMB maintains an inventory aggregating each of the CFTC's currently 
approved information collections, as well as the information 
collections that presently are under review.
---------------------------------------------------------------------------

    \1264\ See, e.g., 75 FR 80638, 80656 (Dec. 22, 2010).
---------------------------------------------------------------------------

C. Cost Benefit Considerations

    CEA section 15(a) requires the CFTC to consider the costs and 
benefits of its action before promulgating a regulation under the CEA, 
specifying that the costs and benefits shall be evaluated in light of 
five broad areas of market and public concern: (i) Protection of market 
participants and the public; (ii) efficiency, competitiveness and 
financial integrity of futures markets; (iii) price discovery; (iv) 
sound risk management practices; and (v) other public interest 
considerations.\1265\
---------------------------------------------------------------------------

    \1265\ 7 U.S.C. 19(a).
---------------------------------------------------------------------------

1. Introduction
    The terms ``major swap participant'' and ``swap dealer'' are 
defined in CEA sections 1a(33) and 1a(49), as added by the Dodd-Frank 
Act, to include any person that holds swap positions above a certain 
level (in the case of the term ``major swap participant'') or that 
engages in certain activities (in the case of the term ``swap 
dealer''), with certain exclusions and exceptions, all as discussed in 
parts II and IV of this Adopting Release. Section 712(d)(1) of the 
Dodd-Frank Act directs the CFTC and the SEC, in consultation with the 
Board, jointly to further define these and other terms. Also, CEA 
section 1a(49)(D) directs the CFTC to promulgate regulations to 
establish factors with respect to the making of the determination to 
apply the de minimis exception to the definition of the term ``swap 
dealer.''
    The provisions of the Dodd-Frank Act that direct the further 
definition of the terms ``swap dealer'' and ``major swap participant'' 
should be viewed in the context of Congress' consideration of the 
consequences that would arise from regulating persons and activities 
that were previously free from regulation. The Dodd-Frank Act is, in 
part, a response to a financial crisis in which unregulated swaps 
played a major role.\1266\ It includes provisions to regulate swap 
dealers and major swap participants in order to address concerns about 
this previously unregulated market. In this context, the Dodd-Frank Act 
requires that rules should ``further define'' the terms ``swap dealer'' 
and ``major swap participant'' by establishing and providing guidance 
with respect to the criteria for determining if a person is covered by 
one of the statutory definitions and therefore should be subject to 
certain regulatory requirements under Title VII; the Dodd-Frank Act 
does not direct the Commissions to define those terms in a vacuum. So, 
even in the absence of these rules, Title VII would require the 
regulation of persons that act as swap dealers or hold positions 
causing them to be major swap participants. Consequently, a large part 
of the costs and benefits resulting from the regulation of swap dealers 
and major swap participants result from the Dodd-Frank Act itself and 
not from these definitional rules.
---------------------------------------------------------------------------

    \1266\ See, e.g., S.Rep. 111-176, The Restoring American 
Financial Stability Act of 2010 at 29.
---------------------------------------------------------------------------

2. General Cost and Benefit Considerations
    In considering the comments on the proposed rules and the various 
alternatives available for the final rules, the CFTC sought to 
promulgate final rules that will help swap market participants and the 
public to apply the statutory definitions of the terms ``swap dealer'' 
and ``major swap participant'' in an efficient, uniform and accurate 
manner. We believe that doing so will protect market participants and 
the public, promote the efficiency, competitiveness and financial 
integrity of the swap markets, facilitate price discovery, encourage 
sound risk management practices and advance the public interest in 
general. That is, by providing direction and guidance as to which 
factors are relevant in applying the statutory definitions, and how to 
apply those factors to particular situations in the swap markets, the 
CFTC believes the final rules will provide benefits by reducing the 
cost of determining whether a particular person is covered by the 
statutory definitions, helping to make similar determinations for 
persons that are similarly situated, and promoting application of the 
terms ``swap dealer'' and ``major swap participant'' in conformity with 
the statutory definitions.
    The costs and benefits considered in this final rule fall in two 
categories: First, those an entity will experience in determining 
whether it is a ``swap dealer'' or ``major swap participant'' as 
further defined in this rulemaking; and second, those attributable to 
the fact that, as interpreted in this rule, a greater or fewer number 
of entities at the boundaries of the statutory definitions may be 
deemed within them.
    With respect to the first category, and as discussed further in 
sections V.A.3.j. and V.A.4.b. below, the CFTC has endeavored to 
approximate the costs of making these determinations. At the same time, 
the CFTC believes that the careful consideration of, and detailed 
response in this Adopting Release to, comments regarding the 
application of the statutory definitions will provide useful, practical 
guidance, yielding a substantial if unquantifiable benefit to entities 
making such determinations.
    The costs and benefits in the second category--those associated 
with the rules being more or less inclusive--were a primary concern of 
the CFTC and commenters throughout this rulemaking. Commenters stated 
that if the CFTC's final rules were to lead to interpretations of the 
statutory definitions that are over-inclusive, the result would be that 
entities would likely incur significant, unjustifiable costs 
attributable to various regulatory requirements intended for actual 
swap dealers and major swap participants.\1267\ Other commenters were 
concerned that if the rules were to lead to under-inclusive 
interpretations, the benefits expected from Title VII would be 
dampened.\1268\
---------------------------------------------------------------------------

    \1267\ See letters from API I, Atmos Energy, BG LNG I, Dominion 
Resources, Hess, NCGA/NGSA I, NFPEEU, Vitol and WGCEF VIII.
    \1268\ See letters from AFR, Better Markets I and Greenberger.
---------------------------------------------------------------------------

    The CFTC does not dismiss these potential unintended results and we

[[Page 30703]]

have responded to these comments in the policy determinations made 
above.\1269\ We recognize that these definitional rules are ``gating'' 
rules, and that this gating function will affect whether entities at 
the boundaries of the statutory definitions incur costs attributable to 
the regulatory regime that Congress has prescribed and the CFTC has 
implemented through other substantive regulations. Correspondingly, 
these definitional rules will also affect the extent of benefits for 
the swap market and the public resulting from those regulations. It is 
important to also recognize, however, that as stated above, the 
regulation of persons acting as swap dealers or who hold positions 
causing them to be major swap participants is required by the Dodd-
Frank Act. For entities that are not on the boundaries of the statutory 
definitions, but rather squarely within them or entirely outside of 
them, these rules will not affect the costs and benefits that result 
from their inclusion or exclusion. The latter group of costs and 
benefits are a consequence of the statutory definitions prescribed by 
Congress.
---------------------------------------------------------------------------

    \1269\ See, e.g., parts II.A.4.g, II.D.3.a and IV.B.3.a.
---------------------------------------------------------------------------

    In this rulemaking, we considered that more inclusive rules and 
guidance would cause some entities at the boundaries of the definitions 
to be covered by one of the definitions and therefore incur both 
initial and recurring direct costs of complying with Dodd-Frank Act 
requirements, while less inclusive rules and guidance would have the 
opposite effect.\1270\ Thus, as more or fewer entities are covered by 
the definitions, the amount of such direct compliance costs incurred by 
entities in the aggregate will vary. However, this variance in the 
aggregate compliance costs resulting from the CFTC's definitional 
guidance in this rulemaking must be distinguished from the compliance 
costs that any particular entity will incur stemming from the other 
rulemakings prescribing regulations applicable to swap dealers and 
major swap participants. Consideration of the specific costs and 
benefits attendant to various substantive regulations applicable to 
swap dealers and major swap participants is beyond the limited scope of 
this rulemaking.
---------------------------------------------------------------------------

    \1270\ For example, the final rules specify criteria related to 
application of the de minimis exception, the range of transactions 
that are eligible for the exclusion of swaps in connection with the 
origination of loans, and the requirements for limited designation 
as a swap dealer, each of which will impact the total number of 
entities that are subject to swap dealer regulation. The final rules 
also specify criteria related to the thresholds for major swap 
participant status, factors that may be considered in the major swap 
participant calculations, and the threshold for ``highly leveraged'' 
status, each of which will impact the number of entities that are 
major swap participants.
---------------------------------------------------------------------------

    Moreover, the variance in aggregate compliance costs resulting from 
this rulemaking will not track, on a ``one for one'' basis, the number 
of entities included in the definitions as the rules are more or less 
inclusive. This is because the initial and recurring compliance costs 
for any particular swap dealer or major swap participant will depend on 
the size, existing infrastructure, level of swap activity, practices 
and cost structure of the entity designated as such.\1271\ Another 
reason that the aggregate costs resulting as more or fewer entities are 
included in the definitions will not precisely track the number of such 
entities is that indirect costs are likely to result as market 
participants seek to avoid the regulations attendant to swap dealer or 
major swap participant status by, among other things, reducing their 
swap activities.\1272\ We do not expect that the extent of these 
indirect costs will be directly related to the number of entities 
included in the definitions.
---------------------------------------------------------------------------

    \1271\ It is likely that a swap dealer or major swap participant 
would incur direct compliance costs related to technology, personnel 
and capital. See CFTC, Registration of Swap Dealers and Major Swap 
Participants; Final Rule, 77 FR 2613 (January 19, 2012); CFTC, 
Business Conduct Standards for Swap Dealers and Major Swap 
Participants With Counterparties; Final Rule, 77 FR 9733 (February 
17, 2012) and CFTC, Swap Dealer and Major Swap Participant 
Recordkeeping, Reporting, and Duties Rules; Futures Commission 
Merchant and Introducing Broker Conflicts of Interest Rules; and 
Chief Compliance Officer Rules for Swap Dealers, Major Swap 
Participants, and Futures Commission Merchants; Final Rule, 77 FR 
20128 (April 3, 2012).
    \1272\ For example, those entities would lose the profits they 
may have gained from those activities, and potentially from related 
business activities if their customers cut back their business 
relationships because the abstaining entities no longer engage in 
those swap activities.
    We recognize that small entities are more likely than large 
entities to abstain from swap activities in order to avoid being 
covered by the swap dealer definition. Smaller entities are less 
likely to have existing technology and procedures that would comply 
with new regulations and therefore their initial costs of compliance 
with the requirements applicable to swap dealers are likely to be 
larger. Moreover, the same fixed costs will have a proportionally 
greater effect on small entities.
    Other market participants may also bear some costs if entities 
abstain from dealing activities or if large users of swaps reduce 
their activities to avoid major swap participant status. These costs 
could include transition costs as the other market participants 
identify new counterparties with which to enter into the same swaps. 
In addition, and likely more important, as more entities abstain 
from swap activities, other entities that are seeking to enter into 
swaps may have a reduced choice of counterparties, which may lead to 
unfavorable financial terms for swaps and imperfect matches between 
risks and the swaps that are available. These factors may increase 
the cost of risk mitigation in general, as entities use more costly 
risk management strategies in place of swaps.
    See generally letters from API I, BG LNG I, BOK dated February 
22, 2011 (``BOK III''), COPE I, Midsize Banks, NEM, NCGA/NGSA I, 
NGFA I, Chevron Federal Credit Union, M&T I, Sidley and WGCEF I. See 
also Roundtable Transcript at 39 (remarks of Eric Chern, Chicago 
Trading Company), 133-34 (remarks of Brenda Boultwood, 
Constellation).
---------------------------------------------------------------------------

    The CFTC likewise acknowledges that more or less inclusive 
definitions may increase or decrease the systemic benefits expected 
from the composite regulation of swap dealers and major swap 
participants. These include improved transparency and market 
orderliness, as well as the reduction of excess leverage and systemic 
risk. The CFTC believes that less inclusive final rules could 
negatively impact these interests in several ways: Those who engage in 
swaps with entities that elude swap dealer or major swap participant 
status and the attendant regulations could be exposed to increased 
counterparty risk; customer protection and market orderliness benefits 
that the regulations are intended to provide could be muted or 
sacrificed, resulting in increased costs through reduced market 
integrity and efficiency; \1273\ and entities that elude swap dealer or 
major swap participant status may gain an unwarranted competitive 
advantage over other market participants.\1274\
---------------------------------------------------------------------------

    \1273\ More uniform compliance with regulations leads to more 
uniform expectations that market participants may reasonably have 
about the financial integrity of various swap dealers and major swap 
participants. Less uniform compliance, on the other hand, could 
introduce additional uncertainty about the financial integrity of an 
individual swap dealer or major swap participant. This could result 
in reduced market efficiency. Moreover, foreseeable ``network 
effects'' could magnify these costs. That is, since requirements 
promoting transparency and orderly documentation are expected to 
increase market participants' general level of certainty about the 
swap positions held by others in the market, the wider the market 
application the greater the benefit. For example, in the 2008 
financial crisis, uncertainty about the potential obligations of 
various market participants led to actions to restrict credit and 
reduce leverage that may not have been taken if there was greater 
confidence about market participants in general; this uncertainty 
also hampered regulatory efforts. Significant pockets of unregulated 
swap activity attributable to less inclusive definitions of the 
terms ``swap dealer'' and ``major swap participant'' may result in 
costs related to uncertainty and lack of information.
    \1274\ The extent of any such competitive advantage would depend 
on the number of entities that are inaccurately not covered by the 
definitions and the extent of their swap activities relative to the 
market in which they are active.
---------------------------------------------------------------------------

    Generally, rules that capture more entities are likely to increase 
these benefits, while rules that capture fewer entities are likely to 
have the opposite effect, though there are several additional factors 
that also have a bearing on the presence and magnitude of increased or 
decreased benefits. These factors include the number and size of 
entities whose status changes

[[Page 30704]]

under more or less inclusive rules, the number of swaps they engage in, 
their connectedness to other institutions and role in the financial 
system, and the types of financial instruments they would have utilized 
in the absence of swap dealer and major swap participant regulations.
    At this time, it is also not possible to quantify the impact of 
these rules on the direct and indirect costs and benefits that result 
from changing the status of an entity that is on the boundaries of the 
Dodd-Frank Act's definitions of the terms ``swap dealer'' or ``major 
swap participant.'' The CFTC does not have adequate information about 
market participants' swap activities to determine which entities will 
change their activities in response to the definitions, which would be 
necessary in order to determine the significance of the impact on costs 
and benefits of including or excluding those entities from the 
regulations pertaining to swap dealers and major swap participants. 
Costs may not be estimated in an accurate or meaningful way for many 
reasons, including because all of the regulations pertaining to swap 
dealers and major swap participants have not yet been issued in their 
final form, and because the CFTC does not have adequate information 
about market participants' existing technology, infrastructure, use of 
swaps, or cost structure.\1275\ Changes in the total benefits resulting 
from the definitional regulations are also difficult to quantify, since 
many of the benefits of the swap dealer and major swap participant 
regulations are indirect, rather than direct. As a consequence, the 
CFTC may recognize and describe the impact of these rules on the 
overall costs and benefits deriving from swap dealer and major swap 
participant regulations, but it is not possible to quantify them at 
this time.
---------------------------------------------------------------------------

    \1275\ Currently, prior to the implementation of Title VII, the 
U.S. swap market generally is not subject to substantive regulation, 
and market participants generally do not disclose detailed 
information about their swap activities and positions. This lack of 
data reduces our ability to analyze the swap activities of 
individual market participants, as well as the market as a whole, 
and thus impacts our ability to analyze the costs and benefits of 
these rules. Our analysis, out of necessity, is based on data that 
currently is available.
---------------------------------------------------------------------------

    The applicable provisions of the Dodd-Frank Act regarding the term 
``eligible contract participant'' are somewhat different, in that the 
statute modifies a particular clause in the pre-existing statutory 
definition of the term and also provides general authority to further 
define the term. The final rules adopted in this regard provide 
guidance for the application of these provisions.
3. Comments on the Discussion of Costs and Benefits in the Proposing 
Release
    Some commenters suggested that the discussion in the Proposing 
Release of the costs and benefits of the proposed rules further 
defining the terms ``swap dealer, '' ``major swap participant'' and 
``eligible contract participant'' was inaccurate or inadequate.\1276\ 
For example, commenters suggested that in considering the final rules, 
the CFTC should consider empirical data regarding the costs and 
benefits flowing from the rules,\1277\ opportunity costs associated 
with regulatory uncertainty,\1278\ and alternatives that would impose 
fewer costs.\1279\ One commenter suggested that the CFTC should issue a 
second analysis of the costs and benefits of the rules for public 
comment,\1280\ while another commenter said that the consideration of 
cost and benefits should include the cumulative cost of interrelated 
regulatory burdens arising from all the rules proposed under the Dodd-
Frank Act.\1281\
---------------------------------------------------------------------------

    \1276\ See letters from API I, NFPEEU, Regional Banks, Sidley 
and WGCEF I, II and VIII; see also letter from FSR III.
    \1277\ See letters from WGCEF I and II.
    \1278\ See letter from Dominion Resources.
    \1279\ See letters from NextEra I and NFPEEU.
    \1280\ See letters from WGCEF I and II.
    \1281\ See letter from NFPEEU.
---------------------------------------------------------------------------

    Another commenter said that the cost-benefit analyses in the 
Proposing Release may have understated the benefits of the proposed 
rules, because focusing on individual aspects of all the rules proposed 
under the Dodd-Frank Act prevents consideration of the full range of 
benefits that arise from the rules as a whole, in terms of providing 
greater financial stability, reducing systemic risk and avoiding the 
expense of assistance to financial institutions in the future.\1282\ 
This commenter said the consideration of benefits of the proposed rules 
should include the mitigated risk of a financial crisis.\1283\
---------------------------------------------------------------------------

    \1282\ See letter from Better Markets II.
    \1283\ Better Markets cited estimates that the worldwide cost of 
the 2008 financial crisis in terms of lost output was between $60 
trillion and $200 trillion, depending primarily on the long term 
persistence of the effects. See id.
---------------------------------------------------------------------------

    We have endeavored to address the commenters' concerns in this 
Adopting Release by undertaking careful consideration of various 
alternatives proposed by commenters as described in this section. With 
regard to the comments suggesting that we consider empirical data, the 
CFTC found that no comprehensive, publicly available empirical data 
related to the usage of swaps in all markets is available, and 
commenters provided very little empirical data to aid us in this 
rulemaking.
4. Costs and Benefits of the Rules Further Defining ``Swap Dealer''
    The Proposing Release proposed certain factors that could be 
relevant to market participants when determining whether they are 
covered by the statutory definition of the term ``swap dealer.'' The 
CFTC received comments in response to numerous issues and considered a 
variety of alternatives in light of those comments, weighing the costs 
and benefits of each. In particular, we considered alternatives with 
respect to the activities indicative of holding oneself out as, or 
being commonly known as, a dealer in swaps, making a market in swaps, 
entering into swaps as a ``regular business,'' the exclusion available 
to IDIs for swaps offered in connection with the origination of loans, 
inter-affiliate swaps, swaps hedging physical positions, limited dealer 
status, and the possibility of providing particularized treatment under 
the definition for various types of entities.
    As noted above, in considering these alternatives the CFTC's 
primary objective was to promulgate a rule under which market 
participants could efficiently and accurately determine whether they 
are engaged in any of the activities that are included in the statutory 
definition of swap dealer, and whether they are covered by any of the 
exclusions in the statutory definition. The scope of our consideration 
of these alternatives included the five factors specified in section 
15(a) of the CEA. That is, we considered how the promulgation of final 
rules that would promote application of the definition of the term 
``swap dealer'' in a manner that is consistent with the statutory 
definition would protect market participants and the public, promote 
the efficiency, competitiveness and financial integrity of the 
markets,\1284\ facilitate price discovery, encourage sound risk 
management practices and serve the public interest. Rather than 
describing in a separate section how we applied the elements of section 
15(a) in the final rule further defining the term ``swap dealer,'' the 
discussion below highlights the application of those elements where 
appropriate.
---------------------------------------------------------------------------

    \1284\ Although by its terms, CEA section 15(a)(2)(B) applies to 
the futures (not swaps) markets, the CFTC finds this factor useful 
in analyzing the costs and benefits of these regulations further 
defining the terms ``swap dealer,'' ``major swap participant'' and 
``eligible contract participant'' as well.

---------------------------------------------------------------------------

[[Page 30705]]

a. Indicia of Holding Oneself Out as a Dealer in Swaps or Being 
Commonly Known in the Trade as a Dealer in Swaps
    As discussed above, the Proposing Release set forth activities that 
could indicate that a person is holding oneself out as a dealer or is 
commonly known in the trade as a dealer in swaps.\1285\ Commenters on 
this point said that persons who are not swap dealers also engage in 
some of the activities identified in the proposed rule. In other words, 
these commenters asserted that these activities are not accurate 
indicators of swap dealer status.\1286\
---------------------------------------------------------------------------

    \1285\ See part II.A.1, supra.
    \1286\ See part II.A.2.a, supra.
---------------------------------------------------------------------------

    Commenters were concerned that if the rule included, as bright-line 
tests of swap dealer status, the proposed indicators of holding oneself 
out as, or being commonly known as, a swap dealer, then the rule would 
lead to an interpretation of the statutory definition that would be 
more inclusive. This, in turn, would lead to the costs of a more 
inclusive rule, and possibly the costs of entities abstaining from swap 
activities to avoid being covered by the definition, as discussed 
above.\1287\
---------------------------------------------------------------------------

    \1287\ See part VII.C.2, supra.
---------------------------------------------------------------------------

    While we are cognizant that providing no guidance about how to 
apply the statutory provision stating that the term ``swap dealer'' 
includes any person who holds itself out as a dealer in swaps or is 
commonly known in the trade as a dealer or market maker in swaps would 
deprive market participants of interpretive guidance--thus increasing 
the direct and indirect costs to apply the rule--we considered the 
commenters' concern that use of the proposed characteristics as bright-
line indicators of swap dealer status could potentially result in 
significant costs. Therefore, to mitigate the costs of applying the 
rule and the costs that would result if the rule were more inclusive, 
the Adopting Release clarifies that the identified activities are not 
per se conclusive, and could be countered by other facts and 
circumstances indicating that an entity is not a swap dealer. The CFTC 
believes that providing guidance about the factors that are correlated 
with holding oneself out as or being commonly known as a swap dealer--
even if not perfectly so--mitigates the risk that the rule would 
include entities that are not actually covered by the statutory 
definition and provides benefits in reducing the costs of application 
of the rule.
b. Making a Market in Swaps
    Commenters on this point provided several perspectives on what does 
and does not constitute market making.\1288\ With those comments in 
view, we considered a number of characteristics for potential inclusion 
in the rule, and evaluated potential costs and benefits of each before 
determining that making a market in swaps is best described as 
``routinely standing ready to enter into swaps at the request or demand 
of a counterparty.'' We also further described various activities that 
constitute routinely standing ready, such as routinely quoting bid or 
offer prices for swaps, routinely responding to requests made directly 
by potential counterparties for bid or offer prices, etc. The 
alternative options we considered are discussed below in light of the 
five broad areas specified in section 15(a) of the CEA.
---------------------------------------------------------------------------

    \1288\ See part II.A.2.b, supra.
---------------------------------------------------------------------------

    Offer swaps on both sides of the market. The proposed rule stated 
our view that an entity may be a market maker in swaps even if the 
entity does not enter into swaps on both sides of the market. Several 
commenters suggested the rule should require that an entity enter into 
swaps on both sides of the market as a prerequisite to market maker 
status.\1289\ We have considered these comments and concluded that an 
entity could be a market maker by offering swaps on one side of the 
market, while entering into transactions on the other side of the 
market using other financial instruments.
---------------------------------------------------------------------------

    \1289\ See letters cited in notes 52 to 54, supra.
---------------------------------------------------------------------------

    Accordingly, using presence on both sides of the market as a 
determinative factor in applying the definition of the term ``swap 
dealer'' could cause the final rule to be under-inclusive by excluding 
entities that function as market makers by entering into swaps on one 
side of the market. In addition, some entities may limit their swap 
dealing activities to one side of the market in an attempt to avoid 
being covered by the definition, again leading to the rule being under-
inclusive.
    Excluding cleared swaps from consideration. Some commenters said 
cleared swaps should not be considered in determining whether an entity 
is a swap dealer.\1290\ Moreover, they suggested that dealers operating 
through clearinghouses might choose to exit the market if required to 
register as swap dealers, which would reduce liquidity.\1291\
---------------------------------------------------------------------------

    \1290\ See letters from Newedge and Traders Coalition. The 
commenters said that considering cleared swaps in determining if an 
entity is a swap dealer may cause entities to reduce their use of 
cleared swaps, which would be contrary to the general purpose of the 
Dodd-Frank Act to encourage clearing.
    \1291\ See letters from CMC and Traders Coalition.
---------------------------------------------------------------------------

    It is possible that some entities whose swap dealing activities are 
limited to cleared swaps will abstain from those activities in order to 
avoid being covered by the definition, leading to costs associated with 
entities abstaining from the market, as described above. Other such 
entities may continue their swap dealing activities and incur the 
initial and ongoing costs of compliance with swap dealer regulations. 
Benefits are linked to these compliance costs, however. For example, 
the swap dealer business conduct requirements are expected to provide 
benefits in terms of protecting market participants and the public. In 
any case, we note that the statutory definition of the term ``swap 
dealer'' does not include any factor considering whether the swaps that 
an entity enters into are cleared as opposed to not cleared. Therefore, 
the costs raised by commenters resulting from the absence of an 
exclusion of cleared swaps are costs that result from the statutory 
definition and not the final rule.
c. Regularly Entering Into Swaps With Counterparties as an Ordinary 
Course of Business
    The final rule incorporates the statutory provisions that the term 
swap dealer includes a person that ``regularly enters into swaps with 
counterparties as an ordinary course of business for its own account'' 
and ``does not include a person that enters into swaps for such 
person's own account, either individually or in a fiduciary capacity, 
but not as a part of a regular business.'' The CFTC believes that the 
determinative issue in interpreting these provisions is whether an 
entity's activity of entering into swaps is part of its usual and 
normal course of business and is identifiable as a swap dealing 
business, as discussed above.\1292\ This Adopting Release also 
describes certain activities that constitute both entering into swaps 
``as an ordinary course of business'' and ``as a part of a regular 
business.''\1293\
---------------------------------------------------------------------------

    \1292\ See part II.A.4.c, supra.
    \1293\ See id.
---------------------------------------------------------------------------

    The CFTC believes that dealers frequently engage in the activities 
described in this Adopting Release, while non-dealers do not.\1294\ As 
a consequence, such activities are useful indicators of swap dealing 
activity and it is appropriate to incorporate them in

[[Page 30706]]

the guidance interpreting the final rule in order to properly apply the 
statutory definition.
---------------------------------------------------------------------------

    \1294\ For example, commenters suggested that these types of 
activities are indicative of swap dealing. See letters from EEI/
EPSA, Hess, NextEra I, Utility Group and Vitol.
---------------------------------------------------------------------------

d. The Dealer-Trader Distinction
    The Adopting Release incorporates the dealer-trader distinction as 
a consideration when identifying swap dealers. While not dispositive, 
the CFTC anticipates that the dealer-trader distinction will be useful 
as a consideration, particularly in light of the degree to which it 
overlaps with many of the other characteristics identified in the 
Adopting Release that are indicative of dealing activity. The dealer-
trader distinction is likely to be familiar to some market participants 
that must determine whether they are swap dealers, and to the extent 
that this is true, the CFTC believes that its incorporation as a factor 
in the swap dealer analysis will help to reduce uncertainty for those 
entities, thereby reducing their costs of determining whether they are 
dealers.\1295\ By incorporating the dealer-trader distinction as one 
consideration within a broader facts and circumstances approach, the 
CFTC has minimized the costs of under inclusion that could arise if the 
distinction were used as a bright line test to exempt entities that 
would otherwise be subject to regulation as swap dealers.\1296\
---------------------------------------------------------------------------

    \1295\ See letters from CCMR I and MFA I.
    \1296\ See letter from AFSCME.
---------------------------------------------------------------------------

e. Limited Designation as a Swap Dealer
    The Proposing Release provided that ``a person who is a swap dealer 
shall be deemed to be a swap dealer with respect to each swap it enters 
into'' but explained that an entity could apply for limited 
designation. Several commenters suggested that the CFTC should allow 
for the possibility of ``presumptive limited designation'' as a swap 
dealer in order to reduce costs.\1297\ We have decided, however, not to 
provide for a presumptive limited designation in the final rule. While 
a presumptive limited designation would, for the entities that seek it, 
mitigate the costs of applying for limited designation and any costs 
related to uncertainty about whether limited designation will be 
granted,\1298\ it could also lead to costs arising from the rule being 
less inclusive. Persons engaged in a broad range of activities that are 
all covered by the definition of the term ``swap dealer'' would have a 
significant incentive to improperly claim eligibility for a presumptive 
limited designation. This would hinder the application of swap dealer 
regulations to all of their swap dealing activities and thereby 
increase costs in terms of lesser protection of market participants and 
the public, as well as impairment of sound risk management practices.
---------------------------------------------------------------------------

    \1297\ See part II.E.2.a, supra. Several commenters stated that 
it is unduly burdensome to require swap dealers to apply swap dealer 
requirements to all of their swaps (including swaps not resulting 
from dealing activity) while they pursue limited designation. See, 
e.g., letters from Capital One, Farm Credit Council I and FHLB I. 
Another commenter suggested that not allowing for a presumptive 
limited designation could cause some community lenders to cease 
offering swaps. See letter from Capital One.
    Another commenter suggested that to reduce costs, presumptive 
limited designation should be available for any formal division of 
an entity, to avoid the costs that would arise if any entity were to 
reorganize its operations without certainty that limited designation 
would be available to the reorganized entity. See letter from WGCEF 
VII.
    \1298\ Entities that apply for limited designation as a swap 
dealer will be required to prepare a submission to the CFTC 
demonstrating their compliance with swap dealer regulations in the 
context of limited designation.
---------------------------------------------------------------------------

    Commenters suggested that to reduce the costs of determining 
whether a particular person is eligible for a limited designation as a 
swap dealer, the CFTC should set out certain criteria that would be 
relevant to that determination, such as the degree of complexity of an 
entity's swap activities, what percentage of an entity's total swap 
activities are dealing activities, the relationship between the entity 
and its swap counterparties, and how difficult it would be to 
distinguish between its ``designated'' and ``non-designated'' 
swaps.\1299\
---------------------------------------------------------------------------

    \1299\ See letters from Capital One and FHLB I.
---------------------------------------------------------------------------

    Rather than setting forth specific factors to be considered with 
respect to limited designation as a swap dealer, this Adopting Release 
takes a facts and circumstances approach, stating that all relevant 
factors will be considered in the determination. This Adopting Release 
also states that an important factor in determining whether a swap 
dealer qualifies for a limited designation is whether the swap dealer 
can demonstrate that the internal structure to which the limited 
designation applies (e.g., a division or business unit) complies with 
the swap dealer requirements. If such a structure is not pre-existing, 
the swap dealer will incur costs in creating a structure for its swap 
dealing activity in a manner that would qualify for limited 
designation. These costs depend on the circumstances of that swap 
dealer and cannot be quantified at this time; however, such costs are 
likely to be significant for at least some swap dealers. On the other 
hand, swap dealers who do qualify for the limited designation will 
benefit from reduced ongoing compliance costs since some swap dealer 
requirements are expected to apply to only those activities encompassed 
by the limited designation.\1300\ This flexible approach will allow 
entities to organize themselves in a manner that allows them to 
maximize the value of limited designation, so long as they are able to 
demonstrate that they will comply with swap dealer requirements. In 
settling on this flexible approach, we considered how the use of a 
limited designation would allow entities to minimize the effect of swap 
dealer registration on their swap activities, which fosters efficiency 
while also promoting sound risk management practices through swap 
dealer regulation.
---------------------------------------------------------------------------

    \1300\ Some swap dealer regulations may be applied at the 
transactional level, while others may affect the operations and 
capital structure of the entity beyond the swaps or activities for 
which it has a limited designation. On this topic, some commenters 
suggested that limited designation should allow the swap dealer to 
limit operational compliance with swap dealer requirements to the 
portion of the business that is designated as a swap dealer. See 
letters from FSR I and WGCEF VII. Another commenter stated that the 
CFTC should not require additional reporting regarding the non-
dealing activities. See letter from Cargill.
---------------------------------------------------------------------------

    The facts and circumstances approach to limited designation will 
likely lead to some costs arising from uncertainty among market 
participants about whether steps they have taken or may take will 
permit them to qualify for a limited designation. However, we believe 
that market participants may mitigate such uncertainty costs by 
contacting staff to discuss changes under consideration, or by applying 
for limited designation on the basis of planned changes (rather than 
making the changes and then submitting the application).
f. De Minimis Exception
    The Dodd-Frank Act requires that the CFTC exempt from designation 
as a swap dealer any entity ``that engages in a de minimis quantity of 
swap dealing in connection with transactions with or on behalf of 
customers,'' and that the CFTC ``promulgate regulations to establish 
factors with respect to the making of this determination to exempt.'' 
\1301\
---------------------------------------------------------------------------

    \1301\ CEA section 1a(49)(D), 7 U.S.C. 1(a)(49)(D).
---------------------------------------------------------------------------

    The proposed rule set out certain quantitative standards for 
identifying those entities whose swap activities were sufficiently 
small that applying swap dealer regulations to them would not be 
warranted.\1302\ Commenters raised several points regarding the 
potential costs and benefits of the proposed approach. We considered 
these points, addressed below, in preparing the final rule, which 
provides

[[Page 30707]]

that an entity qualifies for the de minimis exception if the notional 
amount of its swap positions or security-based swap positions over the 
prior 12 months arising from its dealing activity is $3 billion or 
less, and the notional amount of such positions with ``special 
entities'' is $25 million or less. However, during a phase-in period 
following the effective date of the final rules, an entity will not be 
required to register as a swap dealer if the notional amount of the 
swap positions it enters into over the prior 12 months arising from its 
dealing activities is $8 billion or less.\1303\
---------------------------------------------------------------------------

    \1302\ See part II.D.1, supra.
    \1303\ See CFTC Regulation Sec.  1.3(ggg)(4)(ii).
---------------------------------------------------------------------------

    In determining the level of the notional amount thresholds for the 
de minimis exception, we considered comments stating that if the 
thresholds were set inappropriately low, persons engaged in a smaller 
quantity of swap dealing would face a choice between reducing their 
swap dealing activities to a level below the thresholds or registering 
as a swap dealer and incurring the costs of compliance with swap dealer 
regulation.\1304\ It follows from these comments that these entities 
would incur costs in making a decision about the extent to which they 
should engage in swap dealing, although none of the commenters 
specifically quantified the costs of making that decision. Commenters 
also expressed a concern that if many entities chose to reduce or cease 
their swap dealing activities in response to the de minimis thresholds, 
the availability of swaps may be reduced, particularly to the smaller 
swap users that typically engage in swaps with such entities, which 
could lead to costs for those smaller swap users.\1305\ Some commenters 
said that the CFTC should justify the final thresholds for the de 
minimis exception with an economic analysis; however, these commenters 
did not propose specific analyses the CFTC should perform or provide 
specific information that should be included in the analysis.\1306\
---------------------------------------------------------------------------

    \1304\ See, e.g., letters and meetings cited in notes 377 to 
381, supra.
    \1305\ See, e.g., letters and meetings cited in note 378, supra. 
See also Roundtable Transcript at 201 (remarks of John Janney, Large 
Public Power Council).
    \1306\ See letters from API I, FSR VI, Midsize Banks, Regional 
Banks and WGCEF I.
---------------------------------------------------------------------------

    The CFTC evaluated data regarding index CDS that was provided by 
the SEC, and made that analysis available to the public.\1307\ The data 
showed that 80.8% of all participants in the index CDS market entered 
into index CDS with an aggregate notional amount of less than $3 
billion during 2011, and 88.7% of such market participants entered into 
index CDS with an aggregate notional amount of less than $8 billion 
during the same period of time. However, the 19.2% and 11.3% of market 
participants above those respective thresholds, accounted for 98.9% and 
97.8% of the total notional amount of index CDS entered into during 
that time, which suggests that a relatively small number of entities 
are responsible for a large majority of activity in the index CDS 
market. The data also showed that 91.7% of all entities with 3 or more 
counterparties that are not recognized by ISDA as dealers entered into 
index CDS with an aggregate notional amount of $9 billion or more 
during 2011, suggesting that a large majority of dealers in index CDS 
likely enter into index CDS with an aggregate notional amount of $9 
billion or more per year.
---------------------------------------------------------------------------

    \1307\ See memorandum to the public comment file from the CFTC 
Office of the Chief Economist.
---------------------------------------------------------------------------

    These observations, and any conclusions derived from them, however, 
must be qualified by limitations of the data, including: (i) Although 
we expect that the data covers a very large part of the index CDS 
market, we cannot verify what percentage of all index CDS are 
represented in the data; (ii) the data is not filtered to reflect 
activity that would constitute swap dealing under the Dodd-Frank Act, 
so it is not possible to use the data to draw conclusions regarding any 
specific entity's status as a swap dealer and (iii) the data does not 
cover other classes of swaps that are relevant to the de minimis 
threshold for swap dealers, such as interest rate swaps, equity swaps, 
foreign exchange swaps or other commodity swaps.\1308\ In light of 
these limitations, any conclusions drawn from the index CDS data must 
be regarded as provisional.
---------------------------------------------------------------------------

    \1308\ See id.
---------------------------------------------------------------------------

    We note that no matter the level at which the de minimis thresholds 
are set, there will always be some entities engaged in a quantity of 
swap dealing at or above the threshold level that will face the choice 
described by the commenters. As noted above, we considered the costs 
and benefits of dealer regulation in determining the notional amount 
standards in the final rule.\1309\ Among the costs we considered were 
those that would result if entities reduce or cease their swap dealing 
activities in response to the de minimis threshold and swaps become 
less available in smaller or niche markets. We considered that this 
could impact the competitiveness of those markets and undermine the 
ability of market participants to practice sound, cost-effective risk 
management.\1310\ In principle, a higher threshold would promote a 
larger pool of swap-dealing entities (since entities with swap dealing 
activity below the threshold need not incur costs to comply with swap 
dealer regulations), meaning more potential counterparties available to 
swap users. On the other hand, a greater quantity of swap dealing would 
be undertaken without the customer protection, market orderliness and 
market transparency benefits of dealer regulation. This, in turn would 
impair the protection of market participants and the public, and 
undermine sound risk management practices, as described above.\1311\ We 
considered these factors in determining the level of the notional 
amount standard in the final rule.
---------------------------------------------------------------------------

    \1309\ See part II.D.3.a, supra. In particular, we note here 
that the higher notional amount standard in the final rule, as 
compared to the proposed rule, should reduce the number entities 
that will face the choice described by the commenters.
    \1310\ As noted above, it is not possible to quantify these 
potential costs with mathematical precision. See note 421, supra. 
The commenters on these points did not provide quantifications of 
such costs.
    \1311\ Commenters expressed various views as to what level of 
benefits flow from dealer regulation. See, e.g., Roundtable 
Transcript at 137-43 (remarks of John Janney, Large Public Power 
Council, Bella Sanevich, NISA Investment Advisors, LLC, and Brenda 
Boultwood, Constellation)
---------------------------------------------------------------------------

    Some commenters advocated use of alternative measures (such as an 
entity's current uncollateralized exposure from swaps, or the number or 
frequency of swaps) as the de minimis gauge.\1312\ Some commenters 
suggested that various types of entities should be subject to different 
de minimis thresholds,\1313\ or that the rule should vary the de 
minimis threshold by type of swap.\1314\ Some commenters suggested that 
the de minimis exception should take into account the purpose of an 
entity's swap dealing activities or the entity's general 
characteristics.\1315\
---------------------------------------------------------------------------

    \1312\ See letters cited in notes 384 and 385, supra.
    \1313\ See letters from COPE I, Farm Credit Council I and MFX II 
and meeting with Electric Companies on April 13, 2011.
    \1314\ See letters from Gavilon II and ISDA I.
    \1315\ See letters from Farm Credit Council I, FHLB I and MFX 
II.
---------------------------------------------------------------------------

    The CFTC believes that these proposed alternatives are unlikely to 
better promote the efficiency, competitiveness and financial integrity 
of the markets, or yield other benefits to a greater extent than the 
approach adopted in the final rule.\1316\ On the

[[Page 30708]]

other hand, requiring market participants to consider more variables in 
evaluating application of the de minimis exception would likely 
increase their costs to make this determination. In light of these 
considerations, we concluded that to establish a single notional 
threshold for all of an entity's swap dealing would best protect the 
markets and the public, foster efficiency and competitiveness and serve 
the public interest.
---------------------------------------------------------------------------

    \1316\ We considered the proposed options in terms of whether 
they would promote: protection of market participants and the 
public; financial integrity and efficiency of swap markets; price 
discovery; sound risk management principles; and other public 
interest considerations. The commenters suggesting other measures 
did not offer a systematic analysis of whether the measures would 
lead to more accurate determinations in all or even most cases, and 
we do not believe such an analysis would be possible at this time 
due to the lack of information regarding how swaps are used in all 
markets. See generally part II.D.4.a, supra.
---------------------------------------------------------------------------

    We believe that using a de minimis threshold based on current 
uncollateralized exposure would lead to costs of calculation, which are 
discussed below in connection with the definition of major swap 
participant. Also, while current uncollateralized exposure may be a 
useful measure of the risk arising from a swap position, it fails to 
address the significance of an entity's swap dealing activity in terms 
of customer protection and market orderliness, which are significant 
elements in the determination of whether an entity is engaged in a de 
minimis quantity of swap dealing.\1317\
---------------------------------------------------------------------------

    \1317\ See part II.D.3.e, supra.
---------------------------------------------------------------------------

    In response to commenters' suggestions, we considered the 
feasibility of assessing the breakeven point at which a potential swap 
dealer would earn enough profit from its swap dealing to support the 
costs to comply with swap dealer regulation.\1318\ However, this 
assessment would require access to non-public, proprietary data 
regarding the gross margins associated with the swap dealing activity 
of a wide variety of market participants. Such data is not available to 
the CFTC.
---------------------------------------------------------------------------

    \1318\ See Roundtable Transcript at 193-94 (remarks of James 
Cawley, Javelin Capital Markets, and Camille Rudge, The PrivateBank 
and Trust Company).
---------------------------------------------------------------------------

    One commenter suggested that the de minimis threshold for swaps 
related to a particular physical commodity should increase if the 
general price of the commodity increases, so that a constant quantity 
of the commodity could be hedged through a particular swap dealing 
entity without that entity exceeding the threshold.\1319\ However, this 
approach, which eschews reliance on the dollar value of swaps, would 
raise the complex question of when the level of dealing in swaps 
relating to the physical quantity of various commodities becomes more 
than de minimis. We do not believe that this approach would provide 
sufficient additional benefits beyond those resulting from the final 
rule to justify the additional costs of application.
---------------------------------------------------------------------------

    \1319\ See letter from NCFC I.
---------------------------------------------------------------------------

    Commenters also suggested that, in order to simplify application of 
the de minimis exception and thereby reduce costs, the final rule 
should include an overall threshold that considers an entity's swaps 
and its security-based swaps.\1320\ However, the statute includes two 
different de minimis exceptions regarding the quantity of an entity's 
swap dealing and its security-based swap dealing. Therefore, the 
suggested approach would be contrary to the statute.
---------------------------------------------------------------------------

    \1320\ See letter from NYCBA Committee.
---------------------------------------------------------------------------

    The final rule provides for a lower de minimis gross notional 
threshold (i.e., $25 million over the course of twelve months) for 
swaps in which the counterparty is a ``special entity,'' as that term 
is defined in CEA section 4s(h)(2)(C) and CFTC Regulation Sec.  
23.401(c)). While it is possible that, for the reasons noted above, 
this lower threshold could reduce the number of potential providers of 
swaps to special entities, which may constrain the ability of special 
entities to practice sound risk management strategies in a cost-
effective manner, we note that the Dodd-Frank Act provides special 
entities with additional protections from market practices that could 
increase the risks they face in using swaps.\1321\ We believe the 
threshold in the final rule reflects an appropriate consideration of 
these potential costs and the benefits that result in terms of serving 
the public interest.
---------------------------------------------------------------------------

    \1321\ See generally Roundtable Transcript at 210-15 (remarks of 
Mary-Margaret Collier, Tennessee Comptroller of the Treasury, John 
Janney, Large Public Power Council and Bella Sanevich, NISA 
Investment Advisors, LLC).
---------------------------------------------------------------------------

    Several commenters responded to the proposed de minimis thresholds 
limiting the number of an entity's counterparties and swaps, suggesting 
that the factors would not be useful in identifying entities engaged in 
a de minimis quantity of swap dealing.\1322\ The final rule omits these 
factors. We believe that, in general, entities which will restrict 
their activities so as to remain under the de minimis notional amount 
threshold are likely to be those entities that are most willing to 
provide swaps with lower notional values. Counting an entity's number 
of counterparties or swaps as de minimis factors could inappropriately 
discourage entities from providing swaps in smaller notional amounts. 
This, in turn, would likely make it more difficult for persons seeking 
small notional amount swaps to find dealers willing to provide them, 
which may increase their costs of hedging and discourage sound risk 
management practices.
---------------------------------------------------------------------------

    \1322\ Some commenters suggested that the number of 
counterparties and the number of swaps are not indicators of 
systemic risk. See letters cited in note 387, supra. Others claimed 
that the de minimis standard should not limit the number of an 
entity's counterparties for policy reasons. See letters from 
Chesapeake Energy and Land O'Lakes I. Commenters also suggested that 
using number of counterparties or number of swaps as a factor would 
create an uneven playing field because it would discourage provision 
of swaps to small end users. See letters from EEI/EPSA and NMPF.
---------------------------------------------------------------------------

g. Exclusion of Swaps Entered Into by IDIs in Connection With the 
Origination of Loans
    The statutory definition of the term ``swap dealer'' excludes an 
IDI ``to the extent it offers to enter into a swap with a customer in 
connection with originating a loan with that customer.'' \1323\ The 
proposed rule would implement this statutory exclusion by providing 
that an IDI's swaps with a customer in connection with originating a 
loan to that customer are disregarded in determining if the IDI is a 
swap dealer. To prevent evasion, the proposed rule further provided 
that the statutory exclusion does not apply where the purpose of the 
swap is not linked to the financial terms of the loan, the IDI enters 
into a ``sham'' loan, or the purported ``loan'' is actually a synthetic 
loan such as a loan credit default swap or loan total return swap.
---------------------------------------------------------------------------

    \1323\ See CEA section 1a(49)(A), 7 U.S.C. 1a(49)(A).
---------------------------------------------------------------------------

    Commenters on the costs and benefits of the proposed approach 
focused on the benefits of a flexible application of the exclusion, 
which they asserted would promote the offering of swaps by IDIs in 
connection with loans and thereby more closely tailor the risks of a 
loan to the borrower's and the lender's needs, and promote the risk-
mitigating effects of swaps.\1324\ In terms of costs, commenters were 
concerned that a narrow application of the loan origination exclusion 
would cause IDIs to seek to avoid being covered by the definition of 
the term ``swap dealer'' by limiting their offering of swaps in 
connection with the origination of loans. Commenters said that the 
IDIs' limitation of their swap offerings could lead borrowers to take 
steps with negative ramifications, such as reduced usage of swaps for 
risk mitigation (which could lead to costs from an increased risk of 
default by the borrower), shifting from the lending institution to 
another institution for the swap (which could lead to inefficiency 
costs since two different institutions would be involved), or shifting 
to

[[Page 30709]]

another institution for both the loan and the swap (which could 
increase risk by increasing concentration in the markets for loans and 
swaps).\1325\ To mitigate these costs, commenters suggested that the 
loan origination exclusion should be construed broadly, particularly 
with respect to the range of loans covered,\1326\ the type of swaps 
covered,\1327\ the required timing for entering into a swap relative 
the corresponding loan's origination,\1328\ and which financial 
institutions could be eligible for this exclusion.\1329\
---------------------------------------------------------------------------

    \1324\ See, e.g., letter from B&F Capital I.
    \1325\ Commenters said that if, because of concern about 
triggering the de minimis threshold, IDIs were not willing to offer 
swaps at times when the borrower's hedging needs change due to loan 
related events, borrowers would have an incentive to seek out 
lenders who are not so constrained, and this incentive would be 
particularly strong if a borrower was not able to provide collateral 
to secure both a loan and a related swap from two separate 
counterparties. See letters from BOKIII, FSR VI and Rabobank, New 
York Branch. One commenter suggested that the impact of a narrow 
loan origination exclusion should be considered in tandem with the 
de minimis exception, because an expansion of one of the exceptions 
could offset some of the costs that result from a narrow 
interpretation of the other. See letter from FSR VI.
    \1326\ See letters cited in notes 308 to 313, supra.
    \1327\ See letters cited in notes 299 to 301313, supra.
    \1328\ See letters cited in notes 302 to 304313, supra.
    \1329\ See letters cited in notes 314 to 317304313, supra.
---------------------------------------------------------------------------

    The final rule limits the loan origination exclusion to swaps with 
terms that are directly related to the financial terms of the 
associated loan, or are required by loan underwriting criteria to to be 
in place as a condition of the loan in order to hedge commodity price 
risks incidental to the borrower's business. We believe that extending 
the loan origination exclusion further, to encompass a broader range of 
swaps connected to a borrower's other business activities would expand 
the exclusion beyond its statutory limits. This would lead to the costs 
associated with the rule becoming less inclusive, such as decreased 
protection of market participants and the public, as well as impaired 
risk management practices and market efficiency, as described above.
    This Adopting Release also includes guidance that the term ``loan'' 
should be construed for this purpose in accordance with the common law 
definition of the term, in order to efficiently allow all interested 
parties to determine which transactions and instruments are eligible to 
be a basis for the exclusion. The CFTC believes that a detailed 
definition of the term ``loan'' covering all of the potential 
variations in how loans may be structured would be both costly to apply 
(because of the level of analysis required to determine if a particular 
instrument qualifies as a loan) and unnecessary (because a common law 
definition of the term ``loan'' has already been established).
    We believe that extending the loan origination exclusion to cover 
any swap entered into by an IDI and a borrower at any point during the 
life of the loan would be contrary to the statutory terms of the 
exclusion, which focuses specifically on swaps entered into in 
connection with the ``origination'' of loans, and could lead to the 
costs of the rule being less inclusive described above. Rather, since a 
primary element of a loan is the transfer of money from the lender to 
the borrower, the final rule provides that the loan origination 
exclusion can cover an otherwise eligible swap if the swap is entered 
into during a specified period around either the execution of the loan 
agreement or any draw of principal under the loan. We believe that this 
aspect of the final rule accurately reflects the statutory terms of the 
exclusion and will serve the public interest by being neither over-
inclusive nor under-inclusive.
    Commenters generally agreed with the statement in the Proposing 
Release that the exclusion should be available to IDIs in a loan 
syndicate, purchasers of a loan, assignees of a loan, and participants 
in a loan.\1330\ We believe that allowing the loan origination 
exclusion to extend to IDIs that participate in loans accurately 
reflects the statutory terms of the exclusion, so long as the IDIs' 
participations are meaningful. Therefore, the rule includes a minimum 
participation requirement in order to avoid inappropriate exploitation 
of the exclusion--i.e., IDIs participating minimally in a loan 
syndication to gain eligibility for the exclusion -- which could lead 
to costs of under-inclusion. The final rule allows the exclusion to be 
applied to a swap (which is otherwise covered by the exclusion) even if 
the notional amount of the swap is different from the amount of the 
loan tranche assigned to the IDI, so long as the IDI meets the minimum 
participation requirements in the loan. This provision is expected to 
facilitate minimization of the number of swaps borrowers enter into, 
and the number of counterparties they face with respect to those swaps, 
when entering swaps in connection with loans, thereby reducing the 
operational costs and risks born by borrowers.
---------------------------------------------------------------------------

    \1330\ See letters cited in note 305313, supra.
---------------------------------------------------------------------------

h. Inter-Affiliate Swaps
    The Proposing Release stated that the dealer analysis should 
consider the economic reality of swaps between affiliates, and 
preliminarily concluded that swaps ``between persons under common 
control may not involve the interaction with unaffiliated persons that 
we believe is a hallmark of the elements of the definitions that refer 
to holding oneself out as a dealer or being commonly known as a 
dealer.'' Commenters generally agreed with the proposed approach.\1331\ 
Some commenters expressed the view that the proposed approach would 
facilitate the use by affiliated corporate groups of centralized 
market-facing conduits, which would promote efficient risk 
management.\1332\
---------------------------------------------------------------------------

    \1331\ See letters cited in note 341, supra.
    \1332\ See letters from Kraft, ONEOK and Shell Trading II.
---------------------------------------------------------------------------

    The final rule interprets the dealer definition not to encompass a 
person's activities with respect to swaps between legal entities that 
are under common majority ownership. The final rule also provides that 
the swap dealer definition does not encompass the activities of a 
cooperative with respect to swaps between the cooperative and its 
members. We believe that such swaps generally serve to allocate or 
transfer risks within an affiliated group, rather than to move those 
risks out of the group to an unaffiliated third party, and therefore to 
include such swaps in the determination of whether an entity is a swap 
dealer would not be consistent with the statutory definition, nor would 
it serve the public interest or promote the protection of markets or 
the public. We also agree with commenters that the use of conduit 
structures to enter into swaps on behalf of commonly controlled 
entities has the potential to promote sound risk management practices 
and the efficiency of the swap markets. Therefore, including these 
swaps in the determination of whether a person is covered by the 
definition of ``swap dealer'' is not likely to provide significant 
benefits, but to include entities in the definition by virtue of these 
swaps would lead to the costs of the rule being overinclusive, as 
described above.
i. Exclusions of Swaps Entered Into for Hedging Physical Positions
    Several commenters said that swaps used to hedge risks should not 
be considered in determining whether a person is a swap dealer. While 
the statutory definition of the term ``swap dealer'' does not 
specifically address hedging activity, the Commissions believe that in 
certain situations, entering into a swap for the purpose of hedging a 
physical position is not indicative of, and is not, swap dealing.

[[Page 30710]]

An interim final rule provides that the determination of whether a 
person is a swap dealer will not consider a swap that the person enters 
into for the purpose of offsetting or mitigating certain price risks as 
defined in the rule, if the swap meets conditions specified in the 
rule.
    When a person enters into a swap for the purpose of hedging the 
person's own risks in specified circumstances, an element of the swap 
dealer definition--the accommodation of the counterparty's needs or 
demands--is absent. Therefore, consistent with our overall interpretive 
approach to the definition, the activity of entering into such swaps 
(in the particular circumstances defined in the rule) does not 
constitute swap dealing. Providing an exclusion of such swaps from the 
swap dealer analysis reduces costs that persons using such swaps would 
incur in determining if they are swap dealers.
j. Exclusions of Certain Swaps Entered Into by Floor Traders
    The CFTC believes that it would be inappropriate to require persons 
who are registered with the CFTC as floor traders to include in the 
swap dealer analysis swaps that they enter into, using only proprietary 
funds, on or subject to the rules of a DCM or SEF and submit for 
clearing to a DCO, and that meet certain other conditions specified in 
the rule. The CFTC believes that a requirement that these persons 
register as swap dealers (if the swap dealer registration requirement 
were to apply) could lead to duplicative regulation, since they are 
already registered as floor traders.
    Providing an exclusion of such swaps from the swap dealer analysis 
reduces costs that persons using such swaps would incur if such swap 
activity were to require them to register as swap dealers. Since the 
swaps are entered into on an exchange, by a person who is registered 
with the CFTC and cleared, we expect that the potential impact on the 
transparency, market orderliness and other goals of dealer registration 
from excluding these swaps from the dealer analysis would be minimal. 
Importantly, the rule requires that the person comply with the record 
keeping and risk management requirements of CFTC Regulation Sec. Sec.  
23.201, 23.202, 23.203, and 23.600 with respect to each such swap as if 
the person. were a swap dealer. The requirement to comply with these 
important provisions reduces the potential for negative consequences 
from this rule.
k. Exclusions for Particular Types of Entities
    Several commenters said the CFTC should interpret the statutory 
definition of ``swap dealer'' to include per se exemptions from the 
definition for certain types of persons or persons who engage in 
certain activities.\1333\ These commenters argued, in general, that 
there would be little or no benefit from construing the statute as 
covering these persons or activities because they did not contribute to 
the causes of the recent financial crisis or they do not pose systemic 
risk.\1334\ These commenters also asserted that to interpret the 
statutory definition to cover these types of persons or activities 
would lead to the costs of the rule being more inclusive, as noted 
above.\1335\
---------------------------------------------------------------------------

    \1333\ See part II.A.2.f, supra.
    \1334\ See id.
    \1335\ In addition, comments along these lines asserted that to 
apply dealer regulation to certain persons who are already subject 
to different financial regulations would be duplicative and could 
create additional costs. See letters from Farm Credit Council I, 
FERC Staff, Fidelity, GIC, MFA I, and NARUC and joint letter from 
ICI and SIFMA AMG.
---------------------------------------------------------------------------

    As stated previously, we note that the statutory definition of the 
term ``swap dealer'' applies to ``any person'' who engages in the 
activities described in the statute and who does not fall within the 
specific exceptions and exclusions in the statute. Therefore, the costs 
of applying the statutory definition to certain types of persons 
identified by the commenters arise from the provisions of the statute 
and not from the CFTC's rulemaking. In addition, to provide the 
requested per se exemptions from the statutory definition could also 
introduce the costs of the rule being less inclusive discussed above, 
such as decreased protection of market participants and the public, as 
well as impaired risk management practices and market efficiency.
    Regarding the argument that there is no or little economic benefit 
from interpreting the statutory definition to cover persons whose 
failure would not create systemic risk, the commenters making this 
point did not provide evidence or analysis to indicate whether there 
would be systemic risk concerns if they were to fail. While some of 
these commenters asserted that their swap activities are not comparable 
to the activities of the financial institutions that are generally 
considered to have had a significant role in the recent crisis, and 
some asserted that persons eligible for the claimed exemptions did not 
play a role in the crisis, even if these assertions are taken as true 
they are not determinative of whether persons of this type could in 
fact be a source of systemic risk. We emphasize that the relevant 
question in this regard would not be whether the failure of any one 
person within the class covered by a suggested exemption would be the 
source of systemic risk, but rather whether a failure of several or 
many such persons would impact the efficiency, competitiveness and 
financial integrity of the markets, impair sound risk management 
practices or otherwise affect the protection of markets and the 
public.\1336\ To be clear, we do not believe and we are not asserting 
that any of the types of persons discussed by the commenters in this 
regard necessarily could be the source of systemic risk concerns, but 
rather we point out that the comments in this regard were general 
assertions rather than a presentation of specific evidence or analysis 
to support the claimed exemptions from the statutory definition. Thus, 
even if the statute allowed for such exemptions, which we do not 
believe it does, none of the commenters provided substantial support 
for their assertions. Also, as noted above we believe that the dealer 
definitions should be construed in the light of several benefits of 
dealer regulation (including protection of the markets and the public, 
encouraging the efficiency, competitiveness and financial integrity of 
the swap markets, and the overall public interest) and not just in 
terms of mitigating potential systemic risk.
---------------------------------------------------------------------------

    \1336\ This is so because the commenters requested per se 
exemptions for broad classes of persons and activities, rather than 
for specific persons. Whether a particular type of market 
participant, as a group, can be the source of systemic risk depends 
on, among other things, the financial strength of each entity in the 
group, the number and financial strength of their counterparties, 
the total amount of swap business conducted, the amount and types of 
margin posted by the entities in question as well as by their 
counterparties, what portion of their swap positions are cleared, 
the volatility of each swap's value as well as the covariance in 
value for all the swaps in their portfolio, and numerous other 
economic factors.
---------------------------------------------------------------------------

    In any case, we believe that the final rule and the guidance in the 
Adopting Release provide clarifications that in many respects mitigate 
the costs that were raised by some of the commenters seeking per se 
exemptions from the definition.
l. Other Comments on the Rule Further Defining the Term ``Swap Dealer''
    Commenters cited other potential costs that could arise from the 
proposed approach to interpreting the statutory definition of the term 
``swap dealer,'' suggesting that the proposed approach was not 
sufficiently clear, may result in multiple interpretations, and risks

[[Page 30711]]

covering entities that would not actually be covered by the statutory 
definition, if it were correctly interpreted.\1337\ Other commenters 
suggested that there could be high costs from application of the swap 
dealer regulations due to erroneous interpretation of the statutory 
definition of the term ``swap dealer,'' including high costs of 
regulatory uncertainty,\1338\ and therefore it is particularly 
important that the final rule provide guidance on the application of 
the statutory definition.\1339\ For example, these commenters said that 
if the final rule does not adequately clarify application of the 
statutory definition, market participants may incur unnecessary costs 
to avoid being covered by the definition of ``swap dealer,'' including 
by avoiding swap activities that are associated with areas of 
uncertainty under the rule.\1340\
---------------------------------------------------------------------------

    \1337\ See letters from AIMA I, API I, Dominion Resources, FSR 
III, NRG Energy, Peabody and Utility Group.
    \1338\ See letters from API I, Dominion Resources, FERC Staff, 
NextEra I and WGCEF VIII.
    \1339\ See letters from API I, FSR III, M&T I, Utility Group and 
Vitol.
    \1340\ One area cited by commenters as a potential source of 
such costs is the application for limited designation as a swap 
dealer. Commenters were concerned that if the parameters of the 
limited designation were uncertain, entities may incur opportunity 
costs from avoiding activities that may be incompatible with a 
limited designation, planning and operational costs from changing 
corporate structure in ways that are not actually necessary to 
obtain a limited designation, and other costs from modifying swap 
activities in response to uncertainty about the steps necessary for 
a limited designation. See letters from API I, BG LNG I, Dominion 
Resources, NextEra I, Vitol and WGCEF VII.
---------------------------------------------------------------------------

    Some commenters said that the proposed rule captures too broad a 
range of entities in its further definition of the term ``swap 
dealer,'' \1341\ and that the asserted over-inclusiveness of the 
proposed rule could lead to direct costs for covered entities as well 
as indirect costs for covered entities, other swap market participants, 
and the public.\1342\ For example, the commenters assert that as 
entities change their swap activities in reaction to the rule, the 
objectives they previously achieved through swaps may either be 
compromised, accomplished through less suitable means, or both.\1343\ 
As another example, the commenters assert that changes in swap 
activities may reduce the choice of counterparties available to market 
participants, which may lead to unfavorable financial terms for swaps 
and imperfect matches between risks and swaps, which could in turn lead 
to reduced usage of swaps and lower liquidity in the swap markets, 
resulting ultimately in increased costs of risk mitigation in 
general.\1344\
---------------------------------------------------------------------------

    \1341\ See letters from BG LNG I, FSR III, NCGA/NGSA I, and 
WGCEF I, II and VIII.
    \1342\ See letters from API I, Atmos Energy, BG LNG I, Dominion 
Resources, Hess, NCGA/NGSA Iand Vitol, and WGCEF VIII.
    \1343\ For example, an entity using swaps to hedge price risks 
may choose not to hedge or to use a different instrument to hedge 
similar positions. If it chooses not to hedge, its risk management 
objectives may be compromised. If it chooses to hedge using futures 
or some other instrument, that instrument may be less suitable for 
various reasons (e.g., basis risk, rollover risk, liquidity risk, 
less customizability, different fee structure, etc.). However, it is 
not possible to quantify the costs and benefits resulting from these 
choices without knowing the terms of the individual swaps the 
entities would have used and the available alternatives for each of 
those swaps.
    \1344\ On the other hand, entities may find that they can 
achieve their risk management goals using forward contracts, futures 
and other financial instruments, or they may determine that their 
financial risks can be reduced in other ways.
---------------------------------------------------------------------------

    The commenters did not quantify the extent of these costs that may 
arise when entities change their swap activities in reaction to the 
rule further defining the term ``swap dealer.''
    We believe that by addressing the concerns regarding the costs and 
benefits of specific aspects of the rule, discussed above in section 
V.C.5., the final rule will also mitigate the indirect costs that may 
arise from the rule. While it is impossible to completely eliminate the 
costs that entities will incur in interpreting the rule and applying it 
to their particular swap activities, we believe the final rule 
mitigates these costs by providing detailed guidance. Also, these costs 
may decrease over time as precedents are established to provide further 
guidance on the application of the statutory definition.
    For example, the final rule and the guidance in this Adopting 
Release mitigate the costs of uncertainty in application of the 
statutory definition by providing more detail about the interpretation 
of the statute's inclusion of any person who ``makes a market in 
swaps'' and the statute's exclusion of a person that enters into swaps, 
``but not as a part of a regular business.'' The guidance describes 
activities that are indicative of making a market in swaps and of 
entering into swaps as a part of a regular business. The final rule 
also provides details regarding the scope of the statutory exclusion of 
swaps in connection with the origination of loans and the de minimis 
exception. Also, the final rule provides that swaps between majority-
owned affiliates, swaps entered into by a cooperative with its members, 
swaps entered into for hedging physical positions as defined in the 
rule, and certain swaps entered into by floor traders, are excluded 
from the swap dealer determination. These provisions will reduce the 
costs that market participants incur in determining whether they are 
covered by the statutory definition of the term ``swap dealer.''
    While it is possible that some entities could choose to cease or 
reduce their swap dealing activities to avoid the costs of compliance 
with swap dealer regulations, which could impair the efficiency and 
competitiveness of the swap markets, there are also likely to be 
significant benefits derived from swap dealer regulation, including 
reduced counterparty risk, better protection of the markets and the 
public, and more assured financial integrity of the markets and 
improved market transparency. Moreover, whether such reductions in 
activity will lead to reduced liquidity in the swap markets, as some 
commenters assert, is not certain. For example, if such reductions in 
swap activity occur, new swap dealers may organize themselves or 
existing swap dealers may expand to accommodate the demand for swaps, 
although the time that would be required for this to occur and the 
extent to which it would occur are uncertain.
    In addition, indirect costs could arise from the rule being less 
inclusive. For example, if the rule considered factors that are not 
relevant to whether an entity is actually covered by the definition, 
such as by providing that only entities that make a two-sided market in 
swaps are makers of markets in swaps, then it is possible that entities 
could change their behavior in response to that aspect of the rule. For 
example, entities that previously made a two-sided market in swaps may 
decide to make only a one-sided market in swaps, potentially leading to 
the types of costs that commenters said would arise if entities reduce 
their swap activities.
    Last, several commenters raised questions and offered suggestions 
about the timeline for implementation of swap dealer requirements 
\1345\ and the sequencing of the CFTC's rulemaking.\1346\ While we 
understand that appropriate timing of rulemaking and the implementation 
of the requirements applicable to swap dealers will play a significant 
role in mitigating inappropriate or avoidable costs flowing from those 
requirements, this rulemaking is limited to the interpretation of the 
statutory definition of the term ``swap dealer,'' and so these

[[Page 30712]]

comments are beyond the scope of this rulemaking.
---------------------------------------------------------------------------

    \1345\ See letters from API I, Capital One, COPE dated March 14, 
2011 (``COPE II''), FSR III,Soci[eacute]t[eacute] 
G[eacute]n[eacute]rale, and Vitol and WGCEF dated March 22, 2011 
(``WGCEF III'').
    \1346\ See letters from ABA Securities Association, BlackRock 
dated June 3, 2011 (``BlackRock III''), CDEU, Hess and WGCEF dated 
March 23, 2011 (``WGCEF IV'').
---------------------------------------------------------------------------

    In sum, we are cognizant that both direct and indirect costs would 
arise if the rule further defining the term ``swap dealer'' did not 
appropriately reflect the statutory definition of the term. Such costs, 
which would arise as the rule is either more or less inclusive, are 
detailed above. The Adopting Release provides benefits by interpreting 
the term ``swap dealer'' in a manner that is as close as possible to 
the statutory definition of the term, thereby mitigating the potential 
costs of both over-inclusiveness and under-inclusiveness.
m. Costs of Applying the Rules Further Defining the Term ``Swap 
Dealer''
    In order to apply the rules further defining the term ``swap 
dealer'' and determine whether or not it is covered by the definition, 
an entity will incur direct costs in the form of personnel hours 
devoted to analyzing the entity's activities with respect to swaps and 
determining whether the entity is covered by the definition. These 
costs will depend on the nature of the entity's swap activities in the 
relevant situation. For some entities, it will be relatively clear that 
they are covered by the definition and they will incur relatively few 
costs in confirming that. It is expected that for many entities it will 
be relatively clear that they are not covered by the definition and 
they will incur little or no cost in confirming that determination. 
However, for some entities, especially those that enter into swaps in a 
variety of different ways and circumstances, the determination will be 
more complex and will require that personnel with financial and legal 
expertise review the circumstances of the entity's swap activities to 
make the determination of whether the entity is covered by the 
definition.
    It is important to recognize that this would be the case in the 
absence of any rule further defining the term ``swap dealer,'' or 
regardless of the terms of the rule, because entities would have to 
interpret the statutory definition to determine whether they are 
covered. Thus, at a minimum, a significant portion of the costs 
discussed below is attributable to the inclusion in the Dodd-Frank Act 
of a definition of the term ``swap dealer'' and not from any aspect of 
the final rules further defining that term. Indeed, the final rule 
provides benefits by minimizing these costs by providing guidance about 
the application of the statutory definitions in various situations.
    The amount of time and resources that must be expended by an entity 
in order to determine whether it qualifies as a dealer will vary 
considerably depending on the complexity of the entity's operations. In 
addition, the direct costs will vary depending on the determinations 
the entity must make--reviewing whether or not it is covered by the 
definition of the term ``swap dealer,'' whether it qualifies for the de 
minimis exception, or whether it seeks to obtain a limited purpose 
registration as a swap dealer. Depending on an entity's situation, it 
may incur some or all of these costs. We did not receive any comments 
quantifying the costs that an entity may incur in applying any aspect 
of the definition of ``swap dealer,'' nor are we aware of any studies 
or surveys regarding this particular issue. Therefore, the CFTC staff 
has estimated the amount of time that entities may require to apply the 
definition in various situations. These estimations are for 
informational purposes and require the CFTC to consider the 
aforementioned highly uncertain criteria.
    Regarding the determination of whether an entity is covered by the 
definition of the term ``swap dealer,'' an entity with a relatively low 
degree of complexity in its organizational structure (i.e., one legal 
entity) and in its swap activities (i.e., little variation in the types 
of swaps they use and the purposes for which they use them) might 
expect the direct cost of such a determination to be approximately 
$13,000.\1347\ We estimate that approximately 250 entities of this type 
would be engaged in swap activities that create sufficient uncertainty 
regarding the application of the definition that they would have to 
incur these costs. An entity with a moderate degree of complexity in 
its organizational structure (i.e., a few legal entities) and its swap 
activities (i.e., some variation in the types of swaps they use and the 
purposes for which they use them) might expect the cost of such a 
determination to be approximately $54,000.\1348\ We estimate that 
approximately 150 entities of this type would be sufficiently uncertain 
regarding the application of the definition that they would have to 
incur these costs. An entity with a high degree of complexity in its 
organizational structure (i.e., multiple affiliates in the corporate 
group) and its swap activities (i.e., using diverse types of swaps for 
various purposes) could spend approximately $170,000 when making a 
determination as to whether it is covered by the definition of swap 
dealer.\1349\ We estimate that approximately 50 entities of this type 
would be sufficiently uncertain regarding the application of the 
definition that they would have to incur these costs. Thus, the total 
direct cost for all entities to determine the coverage of the 
definition of the term ``swap dealer'' would be approximately 
$20,000,000.
---------------------------------------------------------------------------

    \1347\ This estimate is based on the following staff 
requirements for this determination: 20 hours for a financial 
analyst at $161/hour, 5 hours of a financial manager at $325/hour, 2 
hours of a controller or chief financial officer at $722/hour, 10 
hours of a compliance attorney at $355/hour, 2 hours of a senior 
attorney at $992/hour, and 2 hours of a chief compliance officer at 
$664/hour. We round to two significant digits. The multiplier of 
5.35, which was used in the Proposing Release, is higher than the 
multiplier that the CFTC has used for similar purposes in other 
final rules adopted under the Dodd-Frank Act. See, e.g., CFTC, Swap 
Data Recordkeeping and Reporting Requirements; Final Rule, 77 FR 
2135, 2173 (Jan. 13, 2012) (adjustment factor of 1.3 for overhead 
and other benefits). The CFTC believes that use of a higher 
multiplier here is appropriate because some persons may retain 
outside advisors to assist in making the determinations under the 
rules.
    The estimates of the hourly cost for these personnel are from 
SIFMA's Management & Professional Earnings in the Securities 
Industry 2010, modified by CFTC staff to account for an 1800-hour 
work-year and multiplied by 5.35 to account for firm size, employee 
benefits, and overhead. These estimates are intended to reflect 
averages for compiling and analyzing the information necessary to 
apply the definition of the term ``swap dealer.'' We recognize that 
particular entities within each range of complexity may, based on 
their circumstances, incur costs substantially greater or less than 
the estimated averages.
    \1348\ This estimate is based on the following staff 
requirements for this determination: 40 hours for a financial 
analyst at $161/hour, 10 hours of a financial manager at $325/hour, 
5 hours of a controller or chief financial officer at $722/hour, 30 
hours of a compliance attorney at $355/hour, 20 hours of a mid-level 
attorney at $608/hour, 15 hours of a senior attorney at $992/hour, 
and 5 hours of a chief compliance officer at $664/hour.
    \1349\ This estimate is based on the following staff 
requirements for this determination: 120 hours for a financial 
analyst at $161/hour, 40 hours of a financial manager at $325/hour, 
20 hours of a controller or chief financial officer at $722/hour, 80 
hours of a compliance attorney at $355/hour, 60 hours of a mid-level 
attorney at $608/hour, 50 hours of a senior attorney at $992/hour, 
and 20 hours of a chief compliance officer at $664/hour.
---------------------------------------------------------------------------

    As noted above, we estimate that approximately 450 entities (i.e., 
250 with relatively low complexity, 150 with moderate complexity and 50 
with high complexity) would be sufficiently uncertain about the 
application of the definition of the term ``swap dealer'' that they 
would incur costs in applying the definition. This estimate includes 
IDIs that apply the loan origination exclusion. It is important to 
emphasize that since there is no definitive publicly available 
information about how many entities are engaged in swap activities and 
how they use swaps in particular situations, it is impossible to be 
sure how many entities may be uncertain about whether the definition 
covers

[[Page 30713]]

them to the point that they would incur such costs. However, we believe 
that the number of such entities may be estimated based on certain 
assumptions as discussed below.
    In meetings with commenters since publication of the Proposing 
Release, the CFTC has discussed extensively the universe of potential 
entities that may be covered by the definition of the term ``swap 
dealer'' and gathered information on the swap market and its 
participants. In its FY 2012 budget drafted in February 2011, the CFTC 
estimated that 140 entities may be covered by the definition of ``swap 
dealer,'' \1350\ and after receiving additional information the CFTC 
estimates that approximately 125 entities will be covered by the 
definitions of the terms ``swap dealer'' and ``major swap 
participant.'' \1351\ With these assumptions in mind, we believe it is 
reasonable to estimate that for every entity covered by the 
definitions, there will be about four entities (i.e., approximately 
four times 120, or about 450) that are sufficiently uncertain about the 
coverage of the definitions that they would incur costs in applying the 
definitions.
---------------------------------------------------------------------------

    \1350\ CFTC, President's Budget and Performance Plan Fiscal Year 
2012, p. 13-14 (Feb. 2011), available at https://www.cftc.gov/ucm/groups/public/@newsroom/documents/file/cftcbudget2012.pdf. The 
estimated 140 swap dealers includes ``[a]pproximately 80 global and 
regional banks currently known to offer swaps in the United 
States;'' ``[a]pproximately 40 non-bank swap dealers currently 
offering commodity and other swaps;'' and ``[a]pproximately 20 new 
potential market makers that wish to become swap dealers.'' Id.
    \1351\ See CFTC, Registration of Swap Dealers and Major Swap 
Participants, 77 FR 2613, 2622 (Jan. 19, 2012). The number of 
persons covered by the definition of ``major swap participant'' is 
estimated to be quite small, at six or fewer.
---------------------------------------------------------------------------

    Our estimate that there would be about 450 such entities is also in 
line with the number of entities that were sufficiently interested in 
the Proposing Release that they submitted substantive comments to the 
CFTC. As noted above, we received about 300 substantive comment letters 
in response to the proposal. Of these, some reflected more than one 
letter from a single commenter, comments from persons who did not 
expect to be swap dealers, or comments from persons who were not 
uncertain about their status under the definition. On the other hand, 
several letters were from multiple commenters that submitted their 
comments jointly. Thus, we estimate that about 225 entities were 
sufficiently interested in the proposed rule further defining the term 
``swap dealer'' that they submitted a substantive comment, and for each 
such entity there was another entity that would also be similarly 
uncertain about the definition, which supports our estimate that 450 
entities in total would incur costs in applying the definition.
    Regarding the determination of whether an entity is eligible for 
the de minimis exception from the definition of the term ``swap 
dealer,'' we note that only an entity that is engaged in some swap 
dealing activity would be required to make this determination, but it 
would be required to make the determination regardless of whether it is 
uncertain about whether its swap activities constitute dealing (e.g., 
it would incur costs even if there were no doubt that it is engaged in 
swap dealing). We also note that the number of entities that will apply 
the de minimis exception is expected to be significantly greater than 
the number of entities that are required to register as swap dealers. 
Again, we believe that the entities making this determination would 
have situations that are highly complex (we believe approximately 25 
entities would fall in this category), moderately complex 
(approximately 200 entities) and of low complexity (approximately 400 
entities).\1352\ The direct cost of making the determination for these 
entities would be approximately $42,000 in highly complex 
situations,\1353\ $15,000 in moderately complex situations \1354\ and 
$8,000 in situations of low complexity.\1355\ The total direct costs 
for all entities would be approximately $7,300,000.
---------------------------------------------------------------------------

    \1352\ The estimate of approximately 625 entities that will 
apply the de minimis exception is based on our assumption that 
significantly more (i.e., five times as many) entities will apply 
the exception as compared to the number of entities registered as 
swap dealers (which we assume to be approximately 120). This 
estimate is also in line with information provided by commenters 
that approximately 100 community and regional banks would 
potentially apply the de minimis exception (i.e., the estimate 
reflects 100 such banks along with 525 other entities that are 
involved in the swap markets to a similar extent).
    \1353\ This estimate is based on the following staff 
requirements for this determination: 80 hours for a financial 
analyst at $161/hour, 20 hours of a financial manager at $325/hour, 
10 hours of a controller or chief financial officer at $722/hour, 20 
hours of a compliance attorney at $355/hour, 5 hours of a senior 
attorney at $992/hour, and 5 hours of a chief compliance officer at 
$664/hour.
    \1354\ This estimate is based on the following staff 
requirements for this determination: 20 hours for a financial 
analyst at $161/hour, 5 hours of a financial manager at $325/hour, 5 
hours of a controller or chief financial officer at $722/hour, 10 
hours of a compliance attorney at $355/hour, 2 hours of a senior 
attorney at $992/hour, and 2 hours of a chief compliance officer at 
$664/hour.
    \1355\ This estimate is based on the following staff 
requirements for this determination: 10 hours for a financial 
analyst at $161/hour, 5 hours of a financial manager at $325/hour, 2 
hours of a controller or chief financial officer at $722/hour, 5 
hours of a compliance attorney at $355/hour, 1 hour of a senior 
attorney at $992/hour, and 1 hour of a chief compliance officer at 
$664/hour.
---------------------------------------------------------------------------

    Third, regarding the determination of whether an entity should 
apply for a limited purpose swap dealer registration, we believe that 
relatively few entities would make such an application but that the 
situation of each of these entities would be highly complex. We believe 
approximately 20 entities would fall in this category, and the direct 
cost of making the determination for each would be approximately 
$250,000,\1356\ resulting in a total direct cost of approximately 
$5,000,000.
---------------------------------------------------------------------------

    \1356\ This estimate is based on the following staff 
requirements for this determination: 200 hours for a financial 
analyst at $161/hour, 120 hours of a financial manager at $325/hour, 
40 hours of a controller or chief financial officer at $722/hour, 
100 hours of a compliance attorney at $355/hour, 60 hours of a mid-
level attorney at $608/hour, 50 hours of a senior attorney at $992/
hour, and 40 hours of a chief compliance officer at $664/hour. The 
estimate of approximately 20 entities applying the limited 
designation reflects an estimate that about one in six swap dealers 
would apply the designation.
---------------------------------------------------------------------------

    Thus, the total initial direct cost of applying the rules further 
defining the term ``swap dealer'' (including the de minimis exception 
and the possibility of limited purpose registration) for all entities 
would be approximately $32,000,000.
    In addition to these initial costs, we believe that entities would 
incur recurring costs in applying the definition. Regarding the 
application of the term ``swap dealer,'' we estimate that approximately 
10 percent of the entities noted above would, each year, experience 
significant changes in their usage of swaps (such as beginning or 
ending a new line of business) that would require reconsideration of 
the application of the definition, which would result in costs 
amounting to one-half of the direct cost of making the initial 
determination. Applying these factors to the costs noted above, the 
total recurring direct costs for all entities associated with the 
application of the term ``swap dealer'' are estimated to be 
approximately $1,000,000 per year. Regarding the de minimis exception, 
we estimate that entities would have to incur ongoing costs of review 
to determine whether the exception applies on a yearly basis, and that 
the annual cost of this review would amount to one-half of the direct 
cost of making the initial determination. That is, the total recurring 
direct costs for all entities associated with the de minimis exception 
are estimated to be approximately $3,700,000. Last, we estimate that 
entities that qualify for a limited purpose swap dealer registration 
would incur ongoing review costs amounting to one-quarter of the direct

[[Page 30714]]

cost of making the initial determination, or approximately $1,300,000 
per year. Thus, the total recurring direct cost of applying the swap 
dealer definition (including the de minimis exception and the 
possibility of limited purpose registration) would be approximately 
$6,000,000.
5. Costs and Benefits of the Rules Further Defining ``Major Swap 
Participant''
    This Adopting Release further defines a ``major swap participant'' 
by setting out quantitative thresholds against which a market 
participant can compare its swaps activities to determine whether it is 
encompassed by the definition. The rule requires potential major swap 
participants to analyze their swaps in detail to determine, for 
example, which of their swaps are subject to netting agreements or 
mark-to-market collateralization, and the amount of collateral posted 
with respect to the swaps. The rule includes a general, qualitative 
definition of the swaps that may be excluded from the calculation 
because they are used to ``hedge or mitigate commercial risk.'' Like 
the swap dealer definition, there is a voluntary process by which a 
person may request that the CFTC limit the major swap participant 
designation to certain categories of swaps.
a. Background
    The definition set forth in CEA section 1a(33) provides that the 
term ``major swap participant'' means any person who is not a swap 
dealer and (i) maintains a substantial position in swaps for any of the 
major swap categories as determined by the CFTC; (ii) whose outstanding 
swaps create substantial counterparty exposure that could have serious 
adverse effects on the financial stability of the U.S. banking system 
or financial markets; or (iii) is a financial entity that is highly 
leveraged relative to the amount of capital it holds, is not subject to 
capital requirements established by an appropriate Federal banking 
agency, and maintains a substantial position in outstanding swaps in 
any major swap category as determined by the CFTC. In connection with 
the calculation of ``substantial position'' noted above, the statutory 
definition specifically excludes positions held for hedging or 
mitigating commercial risk, and positions maintained by any employee 
benefit plan as defined in sections 3(3) and (32) of ERISA for the 
primary purpose of hedging or mitigating any risk directly associated 
with the operation of the plan. The statutory definition also provides 
that major swap participant designations may be limited in scope so 
that a person may be designated as a major swap participant in certain, 
but not all, swap categories.
    CEA section 1a(33)(D) excludes from the definition of the term 
``major swap participant'' certain entities whose primary business is 
providing financing and who use derivatives for the purpose of hedging 
underlying commercial risks related to interest rate and foreign 
currency exposures, 90 percent or more of which arise from financing 
that facilitates the purchase or lease of products, 90 percent or more 
of which are manufactured by the parent company or another subsidiary 
of the parent company. There is no analogous statutory provision 
applicable to major security-based swap participants.
    As detailed in this Adopting Release, the definition of the term 
``major swap participant'' focuses on the market impacts and risks 
associated with a person's swap positions. This contrasts to the 
definition of the term ``swap dealer,'' which focuses on a person's 
activities and accounts for the amount or significance of those 
activities only in the context of the de minimis exception. Persons 
that meet the major swap participant definition would, in large part, 
follow the same statutory requirements applicable to swap 
dealers.\1357\ In this manner, the Dodd-Frank Act regulates entities 
whose swap activities do not cause them to be swap dealers, but 
nonetheless could pose a high degree of risk to the U.S. financial 
system. This regulation of major swap participants is intended to 
facilitate financial stability by reducing risk, increasing 
transparency, and promoting market integrity.
---------------------------------------------------------------------------

    \1357\ The Dodd-Frank Act provides for the registration and 
regulation of major swap participants under CEA section 4s. The 
particular requirements applicable to major swap participants will 
be established in separate rulemakings. See notes 1240 and 425, 
supra.
---------------------------------------------------------------------------

b. Costs of Applying the Rules Further Defining the Term ``Major Swap 
Participant''
    The actual cost of applying the rule further defining the term 
``major swap participant'' to determine if a person is covered by the 
definition will depend, in large part, on the nature of the person's 
swap activities as well as the infrastructure such person already has 
in place for the analysis and reporting of its swap activities. Many 
persons will be clearly outside the definition (and a few persons may 
be clearly covered by the definition) and will incur little cost to 
confirm that status. However, it is reasonable to expect that a few 
persons that are not swap dealers but nonetheless engage in significant 
swap activity will be required to incur costs to determine whether they 
are covered by the definition. The direct costs such a person would 
incur would result from the incremental expense of personnel with 
financial and accounting expertise who would be required to devote time 
to the review of the size and nature of the person's swap positions to 
determine whether the person is covered by the definition. Moreover, 
there will also be technology and legal review costs related to the 
determination of whether a person is a major swap participant. As is 
the case for the definition of the term ``swap dealer,'' it is 
important to recognize that even in the absence of any rule further 
defining the term ``major swap participant,'' or regardless of the 
terms of the rule, entities would incur costs in interpreting the 
statutory definition to determine whether they are covered. Thus, at a 
minimum, a significant portion of the costs discussed below is 
attributable to the inclusion in the Dodd-Frank Act of a definition of 
the term ``major swap participant'' and not from any aspect of the 
final rules further defining that term. Indeed, the final rules provide 
benefits by mitigating these costs by providing guidance about the 
application of the statutory definitions in different situations.
    The amount of time and resources that must be expended by a person 
in order to determine whether it qualifies as a major swap participant 
may vary considerably depending on the complexity of such person's 
operations. In addition, direct costs will vary depending on the 
determinations the person must make relating to the definition, 
including, but not limited to, whether it engages in swap activity near 
the thresholds for ``substantial position'' and ``substantial 
counterparty exposure,'' and whether it is subject to a ``safe harbor'' 
provision as set forth in the definition. The CFTC did not receive any 
comments quantifying the costs that a person may incur in applying any 
aspect of the definition of the term ``major swap participant,'' nor 
are we aware of any studies or surveys regarding this particular issue. 
Therefore, the CFTC staff has estimated, based on its experience, the 
amount of time that a person may require to determine whether it meets 
the definition. These estimations are for informational purposes and 
require the CFTC to consider the aforementioned highly uncertain 
criteria.
    The CFTC estimates that approximately 20 persons that are not swap 
dealers will initially be engaged in swap activity to such an extent 
that they

[[Page 30715]]

would be required to apply the calculations in the final rule in 
determining whether they are covered by the definition.\1358\ The 
direct cost of making such determination for each such person is 
estimated to be approximately $260,000,\1359\ resulting in an initial 
aggregate direct cost of approximately $5,200,000. We note that the 
relatively low estimate of only 20 persons that would be required to 
incur costs at this level, as compared to the many thousands of swap 
market participants, reflects the relatively high thresholds for major 
swap participant status. As noted above, the large majority of market 
participants will be able to readily conclude that they are not covered 
by the definition.
---------------------------------------------------------------------------

    \1358\ As is the case with respect to the definition of the term 
``swap dealer,'' we believe that the number of persons that may 
incur costs in reviewing their activities and the rules will be 
significantly greater than the number of entities that actually are 
covered by the definition and will be required to register as major 
swap participants. Similarly, since there is no definitive publicly 
available information about how many entities are engaged in swap 
activities and how they use swaps in particular situations, it is 
impossible to be sure how many entities may be uncertain about 
whether the definition covers them to the point that they would 
incur such costs. Our estimate that approximately 20 entities would 
be sufficiently uncertain about the application of the definition of 
the term ``major swap participant'' that they would incur costs in 
applying the definition is based on our assumption that about six 
entities would be covered by the definition, and that for each such 
entity there will be about four entities that will be uncertain 
about the coverage of the definition. See note 1351, supra.
    \1359\ This estimate is based on the following staff 
requirements for this determination: 200 hours for a financial 
analyst at $161/hour, 80 hours for a programmer analyst at $196/
hour; 120 hours of a financial manager at $325/hour, 40 hours of a 
controller or chief financial officer at $722/hour, 100 hours of a 
compliance attorney at $355/hour, 60 hours of a mid-level attorney 
at $608/hour, 50 hours of a senior attorney at $992/hour, and 40 
hours of a chief compliance officer at $664/hour.
    The estimates of the hourly cost for these personnel are from 
SIFMA's Management & Professional Earnings in the Securities 
Industry 2010, modified by CFTC staff to account for an 1800-hour 
work-year and multiplied by 5.35 to account for firm size, employee 
benefits, and overhead. As is the case for the application of the 
definition of the term ``swap dealer,'' we believe that that use of 
a higher multiplier here is appropriate because some persons may 
retain outside advisors to assist in making the determinations under 
the rules. These estimates are intended to reflect averages for 
compiling and analyzing the information necessary to apply the 
definition of the term ``major swap participant.'' We recognize that 
particular entities within each range of complexity may, based on 
their circumstances, incur costs substantially greater or less than 
the estimated averages. We round to two significant digits.
---------------------------------------------------------------------------

    In addition to these initial costs, we believe that approximately 
20 entities would incur recurring direct costs in applying the 
definition of major swap participant on a daily basis, and such costs 
would amount to one-third of the direct cost of making the initial 
determination. Thus, the total recurring direct costs for all entities 
associated with the application of the term ``major swap participant'' 
are estimated to be approximately $1,700,000 per year or approximately 
$83,000 per year for each person.
    Although the CFTC believes there will only be a limited number of 
persons that potentially may be major participants, we recognize the 
concerns raised by several commenters that major swap participant 
calculations will be conducted as part of the person's overall 
compliance function even when there is not a significant likelihood 
that such person would be a major swap participant. As a result of the 
potential expense and effort that a person would be required to incur 
in connection with determining whether it meets the definition of major 
swap participant, the final rule includes three alternative ``safe 
harbor'' provisions.\1360\ These safe harbor provisions relieve persons 
that are clearly not major swap participants from incurring the expense 
of the calculations otherwise required under the final rule.
---------------------------------------------------------------------------

    \1360\ See part IV.M, supra.
---------------------------------------------------------------------------

    To apply the safe harbor provisions of the rule, the CFTC estimates 
that a person would have to incur initial direct costs of approximately 
$2,900 to determine whether its swap positions are within the safe 
harbor.\1361\ In addition, a person would incur costs of reviewing its 
swap positions on a monthly basis to monitor whether the safe harbor 
continues to apply, at an annual cost equal to one-third of the direct 
cost of making the initial determination, or $960. Our assumption that 
approximately 1,200 entities would apply the safe harbor provisions of 
the rule yields an aggregate direct initial cost of approximately 
$3,500,000 and aggregate annual costs of approximately 
$1,200,000.\1362\
---------------------------------------------------------------------------

    \1361\ This estimate is based on the following staff 
requirements for this determination: 5 hours for a financial analyst 
at $161/hour, 2 hours for a financial manager at $325/hour, 1 hour 
for a comptroller or chief financial officer at $722/hour, 2 hours 
for a compliance attorney at $355/hour.
    \1362\ Our estimate of the number of entities that will make the 
safe harbor calculation includes the following: one-half of the 
approximately 700 investment company sponsors that are active in the 
U.S. (see the 2011 Investment Company Factbook published by the ICI, 
page 14, available at https://www.ici.org/pdf/2011_factbook.pdf), a 
similar number of entities (i.e., 350) that have large positions in 
swaps as part of other investment management activities, one half of 
the corporate entities in the ``Fortune 500'' (representing 
corporate entities that have large positions in swaps) and an 
additional 250 entities representing other holders of large 
positions in swaps.
---------------------------------------------------------------------------

c. Major Swap Participant Thresholds
    The final rule adopts the general approach in the proposed rule of 
determining whether a person is a major swap participant by comparing 
the exposure resulting from a person's swap positions to specific, 
quantitative thresholds. The proposed thresholds for substantial 
position were $3 billion in current uncollateralized exposure or $6 
billion in current uncollateralized exposure plus potential future 
exposure for rate swaps, and $1 billion in current uncollateralized 
exposure or $2 billion in current uncollateralized exposure plus 
potential future exposure for each of the other categories of swaps. 
The proposed thresholds for substantial counterparty exposure are $5 
billion in current uncollateralized exposure across all categories or 
$8 billion in current uncollateralized exposure plus potential future 
exposure across all categories.\1363\ However, there is a change for 
the weight in the PFE calculations from the proposal to the final rule 
of 0.2 to 0.1 for cleared swaps.
---------------------------------------------------------------------------

    \1363\ See parts IV.B.3.d. and IV.E.3.
---------------------------------------------------------------------------

    Commenters generally did not oppose the proposed thresholds 
although several thought the thresholds should be raised.\1364\ Two 
commenters supported the adoption of the thresholds as proposed.\1365\ 
In addition, a few other commenters thought that the thresholds were 
set too high.\1366\ Other commenters suggested that the thresholds be 
raised to a level that reflects systemic risk without suggesting a 
specific numerical threshold.\1367\ One commenter, however, suggested 
that the threshold be increased to $10 billion.\1368\ Several 
commenters also said that the thresholds should be adjusted for 
inflation and other changes over time in the swap market.\1369\
---------------------------------------------------------------------------

    \1364\ See, e.g., letters cited in notes 796 and 798, supra.
    \1365\ See letters from Dominion Resources and Fidelity.
    \1366\ See letters from AFR and Greenberger.
    \1367\ See letters from BlackRock I, ISDA I, MFA I and WGCEF II.
    \1368\ See letter from CCMR I. In addition, ACLI commented that 
thresholds for rate swaps should be increased to $4 billion for 
current uncollateralized exposure and $8 billion for current 
uncollateralized exposure plus potential future exposure, with 
corresponding increases to substantial counterparty exposure 
thresholds to $7 billion for current uncollateralized exposure and 
$14 billion for current uncollateralized exposure plus potential 
future exposure. See letter from ACLI.
    \1369\ See letters from CDEU, COPE I, Fidelity, ISDA I, and MFA 
I.
---------------------------------------------------------------------------

    As discussed in part IV.B.3.d., the CFTC is adopting the thresholds 
as proposed. We recognize that the level of the thresholds will have a 
significant effect on whether the rules further defining the term 
``major swap

[[Page 30716]]

participant'' are applied in a manner that is more or less inclusive, 
and that in setting the thresholds it is possible that we may err on 
the side of over- or under-inclusion. As noted above in part V.C.2., if 
the rule were more inclusive, costs could arise when the persons that 
are classified as major swap participants incur compliance costs, while 
if the rule is less inclusive the benefits of regulating major swap 
participants (in terms of reduced risk, increased transparency and 
market integrity) could be reduced. We also recognize that a more 
inclusive rule could lead to costs if it causes persons to make changes 
to their use of swaps in order to avoid being covered by the rule.
    One commenter said that the CFTC should conduct an empirical 
analysis of the proposed thresholds and whether they are suitable for 
identifying persons whose swap positions entail the risks enumerated in 
the statutory definition of the term ``major swap participant.'' \1370\ 
However, the CFTC believes it is not feasible to perform such an 
analysis because the comprehensive and detailed information about how 
very active swap market participants use swaps that it would require is 
not available.
---------------------------------------------------------------------------

    \1370\ See letter from WGCEF II.
---------------------------------------------------------------------------

    The CFTC believes that the threshold levels in the final rule are 
appropriate to effectively monitor and oversee entities that are 
systemically important or could significantly impact the U.S. financial 
system. The CFTC and SEC are consistent in their approach to 
thresholds. As more data regarding the use of swaps and the importance 
of very large swap positions in the swap markets become available, the 
CFTC may consider adjusting the thresholds.
    The final rules also provide for the measure of potential future 
exposure to be adjusted in the case of swap and security-based swap 
positions that are centrally cleared or that are subject to daily mark-
to market margining. This is consistent with the purpose of the 
potential future exposure test, which is to account for the extent to 
which the current outward exposure of positions (though possibly low or 
even zero at the time of measurement) might grow to levels that can 
lead to high counterparty risk to counterparties or to the markets 
generally. The practice of the periodic exchange of mark-to-market 
margin between counterparties helps to mitigate the potential for large 
future increases in current exposure.
    Consistent with the proposal, the final rules reflect this ability 
to mitigate risk by providing that the potential future exposure 
associated with positions that are subject to daily mark-to-market 
margining will equal 0.2 times the amount that otherwise would be 
calculated. However, in response to commenters assertions about the 
risk-mitigating effects of central clearing, and the additional level 
of rigor that clearing agencies may have with regards to the process 
and procedures for collecting daily margin, the final rules further 
provide that the potential future exposure associated with positions 
that are subject to central clearing will equal 0.1 (rather than the 
proposed 0.2) times the potential future exposure that would otherwise 
be calculated.\1371\
---------------------------------------------------------------------------

    \1371\ See CFTC Regulation Sec.  1.3(jjj)(3)(iii)(A); Exchange 
Act rule 3a67-3(c)(3)(i). The final rules further have been revised 
to clarify that the 0.1 factor applies to positions cleared by a 
registered clearing agency or by a clearing agency that has been 
exempted from registration.
---------------------------------------------------------------------------

    Although some commenters supported the complete exclusion of 
cleared positions from the potential future exposure analysis,\1372\ 
the CFTC recognizes that central clearing cannot reasonably be expected 
to entirely eliminate counterparty risk.\1373\ Accordingly, the CFTC 
concluded that the use of a 0.1 factor (in lieu of the proposed 0.2) is 
appropriate for cleared positions, reflecting the strong risk 
mitigation features associated with central clearing, particularly the 
procedures regarding the collection of daily margin and the use of 
counterparty risk limits, while recognizing the presence of some 
remaining counterparty risk.
---------------------------------------------------------------------------

    \1372\ See, e.g., letters from MFA I and SIFMA AMG II.
    \1373\ Central clearing helps to mitigate counterparty credit 
risk by improving risk management and, among other things, 
mutualizing the risk of counterparty failure. If multiple members of 
a central counterparty fail beyond the level to which such risk is 
managed, however, the central counterparty would also be at risk of 
failure. Cf. Basel Committee on Banking Supervision, Consultative 
Document, ``Capitalisation of bank exposures to central 
counterparties,'' Nov. 25, 2011 (available at: https://www.bis.org/publ/bcbs206.pdf) (proposing that the capital charge for trade 
exposures to a qualifying central counterparty should carry a low 
risk weight, reflecting the relatively low risk of default of the 
qualifying central counterparty). In addition, as the CFTC and SEC 
discussed in the Proposing Release, see 75 FR at 80192 n. 115, for 
example, central counterparties that clear credit default swaps do 
not necessarily become the counterparties of their members' 
customers (although even absent direct privity those central 
counterparties benefit customers by providing for protection of 
collateral they post as margin, and by providing procedures for the 
portability of customer positions in the event of a member's 
default). As a result, central clearing may not eliminate the 
counterparty risk that the customer poses to the member, although 
required mark-to-market margining should help control that risk, and 
central clearing would be expected to reduce the likelihood that an 
entity's default would lead to broader market impacts.
---------------------------------------------------------------------------

    Moreover, although some commenters opposed any deduction from the 
measure of potential future exposure for uncleared positions that are 
margined on a daily basis,\1374\ the CFTC believes that the risk-
mitigating attributes of daily margining warrant an adjustment given 
that the goal of the potential future exposure test is to account for 
price movements over the remaining life of the contract.\1375\ The use 
of a 0.2 factor also reflects the CFTC's expectation that the risk 
mitigation associated with uncleared but margined positions would be 
less than the risk mitigation associated with cleared positions.
---------------------------------------------------------------------------

    \1374\ See letter from Better Markets I; see also letter from 
AFR.
    \1375\ The CFTC does not believe that it is appropriate to have 
this type of discount when mark-to-market margining is done less 
than daily, however.
---------------------------------------------------------------------------

    While higher or lower alternatives to the 0.1 and 0.2 factors may 
also be reasonable for positions that are cleared or margined on a 
daily basis, the CFTC believes that the factors of the final rules 
reasonably reflects the risk mitigating (but not risk eliminating) 
features of those practices. The final rules also retain and clarify 
provisions addressing when daily mark-to-market margining occurs for 
purposes of this discount.\1376\
---------------------------------------------------------------------------

    \1376\ The CFTC recognizes that at times, market participants 
whose agreements provide for the daily exchange of variation margin 
in connection with swaps in practice may not exchange collateral 
daily, if the amounts at issue are relatively small (such through 
the use of collateral thresholds and minimum transfer amounts). We 
do not believe that such practices would be inconsistent with 
providing a discount for daily margining practices. The proposed 
rules sought to accommodate those practices by providing that 
positions would be considered to be subject to daily mark-to-market 
margining for purposes of the ``uncollateralized outward exposure'' 
plus ``potential outward exposure'' analysis, so long as the total 
of such thresholds, and the total of such minimum transfer amounts 
above $1 million are deemed to be ``uncollateralized outward 
exposure'' for those purposes.
    In light of commenter concerns, which indicated that the 
proposal was not fully clear about the mechanics and purpose of this 
approach, the relevant rule language has been revised to clarify 
that this attribution of thresholds and minimum transfer amounts is 
solely for the purpose of determining whether certain positions are 
subject to daily mark-to-market margining for purposes of the 
analysis. In addition, the final rules have been revised from the 
proposal to provide that the attribution of thresholds as 
``uncollateralized outward exposure'' for these purposes will be 
reduced by initial margin posted, up to the amount of the threshold. 
See CFTC Regulation Sec.  1.3(jjj)(iii)(B); Exchange Act rule 3a67-
3(c)(3)(ii).
---------------------------------------------------------------------------

d. Difficulty in Applying the Major Swap Participant Calculations
    While commenters generally acknowledged that the proposed 
quantitative threshold tests are objective, some said that the proposed 
tests are difficult to understand and

[[Page 30717]]

hard to apply.\1377\ Another commenter submitted that ``[the CFTC] 
should solicit feedback from market participants prior to final rule 
given the complexity of tests and likely interpretive issues; proposed 
tests are highly technical, and more challenging to use than may appear 
at first glance; could also request volunteers to walk-through the 
tests to ensure they actually function in practice.''\1378\ Several 
commenters suggested means of reducing the costs of applying the 
proposed tests. Some commenters requested that the CFTC adopt a ``safe 
harbor'' provision in the final rules for swap users with positions 
that are substantially below the thresholds.\1379\ Another commenter 
opined that the rule should allow persons to rely on third-party 
service providers to conduct the required calculations.\1380\ In 
addition, a commenter said the rule should allow swap users to apply 
standard industry practices in valuing their positions.\1381\
---------------------------------------------------------------------------

    \1377\ See, e.g., letters from Fidelity, Freddie Mac, ISDA I and 
SIFMA AMG II.
    \1378\ See letter from WGCEF II at 11.
    \1379\ See letters from AII, Vanguard and SIFMA AMG II. Another 
commenter submitted that swap dealers will require counterparties to 
run the major swap participant calculations in order to certify that 
they are not major swap participants, even in cases where it is 
readily evident that they are not major swap participants. See 
meeting with CalSTRS on April 15, 2011.
    \1380\ See letter from ISDA I.
    \1381\ See id.
---------------------------------------------------------------------------

    We believe that the guidance in this Adopting Release reduces the 
costs of determining if a person is covered by the definition. For 
example, in response to commenters' concerns we clarify that a person 
may determine the value of its exposure using industry standard 
practices.\1382\ Also, we believe that the daily calculation burdens 
associated with the proposed thresholds will be addressed by safe 
harbors that are available if a simplified calculation shows that a 
person's exposure from its swap position is far below any threshold for 
any particular month. The final rule includes safe harbors to reduce 
unnecessary costs for entities that, because of compliance concerns, 
would engage in major swap participant calculations even though it 
would be very unlikely that the major swap participant thresholds would 
be met.\1383\ Also, the CFTC will permit third-party service providers 
to perform major swap participant calculations, although a person that 
may be a major swap participant is not relieved of potential liability 
for violations of the CEA if there is a calculation or other error by 
the third-party.\1384\
---------------------------------------------------------------------------

    \1382\ See part IV.B.3.b, supra.
    \1383\ See part IV.M.2, supra.
    \1384\ See part IV.B.3.e, supra.
---------------------------------------------------------------------------

e. Exclusions for Particular Types of Entities
    Commenters said that exclusions from the major swap participant 
definition should be available for certain entities including insurance 
companies, registered investment companies, entities that maintain 
legacy portfolios of swaps, ERISA plans, and sovereign wealth 
funds.\1385\ Some commenters cited, as the underlying basis for 
excluding these entities, the existing regulatory regime to which these 
entities are subject and the potential for dual regulation if they were 
covered by the definition of the term ``major swap participant.''\1386\ 
One commenter asserted that a lack of clarity with respect to proposed 
exemptive relief will impose additional costs on market participants 
due to the uncertainty in determining major swap participant 
status.\1387\
---------------------------------------------------------------------------

    \1385\ See part IV.J.2, supra.
    \1386\ See id. For example, commenters said that registered 
investment companies and corresponding registered investment 
advisers should be excluded from the definition of major swap 
participant because they are highly regulated by the SEC pursuant to 
the ICA and the Investment Advisers Act of 1940, and therefore major 
swap participant regulation would be duplicative. See joint letter 
from ICI and SIFMA AMG.
    \1387\ See letter from MetLife.
---------------------------------------------------------------------------

    Several commenters said that sovereign wealth funds should be 
excluded from the definition of major swap participant based on 
international principles of comity and sovereign immunity.\1388\ These 
commenters asserted that sovereign wealth funds are regulated in their 
home country and do not represent the type of counterparty risk 
contemplated by the Dodd-Frank Act. A commenter asserted that special 
purpose vehicles for structured finance or securitization should be 
exempted from the definition of major swap participant so as to not 
harm liquidity in asset securitizations.\1389\ That commenter based its 
recommendation on the understanding that special purpose vehicles have 
limited functionality and resources and would accordingly be unable to 
comply with the burden of regulation as a major swap participant.\1390\
---------------------------------------------------------------------------

    \1388\ See letters from CIC and GIC and meeting with Weil.
    \1389\ See letter from ISDA I.
    \1390\ See id.
---------------------------------------------------------------------------

    The final rule does not have specific exclusions for certain types 
of entities. The CFTC believes that a more level playing field is 
desirable to ensure no particular type of entity gains an unfair 
competitive advantage in the market.
    The appropriate treatment of ``legacy portfolios'' (e.g., the 
monoline insurers or their special purpose vehicles) will be determined 
on a case-by-case basis by the CFTC. Legacy portfolio operators 
specifically commented that they are in ``run-off''/wind down mode, 
thereby undertaking no new swaps that would increase their risk, with 
an expectation to shut down or cease operations once their portfolio 
expires.\1391\ As a result, these commenters maintain that margin or 
capital requirements would likely lead to their insolvency because they 
do not have the assets to satisfy the proposed requirements. The CFTC 
notes that many of the compliance obligations imposed by the Dodd-Frank 
Act and/or the business conduct rules promulgated thereunder will not 
apply to operators of legacy portfolios because such obligations will 
not be applicable to swaps executed prior to the enactment of the Dodd-
Frank Act such as the swaps in legacy portfolios.\1392\ Consequently, 
the CFTC expects legacy portfolio operators' primary compliance 
obligation to be related to reporting and risk management.
---------------------------------------------------------------------------

    \1391\ See letters from Athilon, Berkshire Hathaway, ISDA I, 
MBIA and Newedge. As noted in part IV.J.3.a, supra, the CFTC 
understands that legacy portfolios are no longer entering into new 
transactions other than to novate, amend and hedge their existing 
positions. In connection with any potential exclusion, however, 
legacy portfolios would still be required to report to SDRs 
information about their swap transactions and positions. See letters 
from BlackRock I and Canadian MAVs.
    \1392\ See CFTC, Swap Data Recordkeeping and Reporting 
Requirements: Pre-Enactment and Transition Swaps; Final Rule, 77 FR 
2136 (Jan. 13, 2012).
---------------------------------------------------------------------------

f. CEA Section 15(a) Discussion
    The costs and benefits of the rule further defining the term 
``major swap participant'' are evaluated in light of the section 15(a) 
five broad areas of market and public concern.
    Protection of market participants and the public. The rule helps 
parties to identify when they have substantial positions or substantial 
counterparty exposures in swap markets that would cause them to be 
covered by the definition of major swap participant. Under the Dodd-
Frank Act, major swap participants are subject to regulations enacted 
to protect market participants and the public. The costs and benefits 
of the statutory and regulatory requirements for major swap 
participants are addressed in the various rulemakings in which they are 
promulgated.\1393\
---------------------------------------------------------------------------

    \1393\ See part VII.C.2, supra.

---------------------------------------------------------------------------

[[Page 30718]]

    Efficiency, competitiveness, and financial integrity of markets. To 
date, potential major swap participants have engaged in swaps in an 
off-exchange marketplace that has been largely unregulated. Once the 
regulations required under the Dodd-Frank Act are adopted and 
effective, major swap participants will be subject to CFTC oversight 
and comprehensive regulation. The CFTC believes these regulations will 
improve the financial integrity of swap markets and the U.S. financial 
system generally. Since the number of persons that are expected to be 
major swap participants is small, the CFTC believes that these 
regulations will not have a significant effect on the efficiency or 
competitiveness of the markets.
    Price discovery. The CFTC does not perceive any direct effect on 
price discovery from the rule further defining the term ``major swap 
participant.''
    Sound risk management practices. The level of the major swap 
participant thresholds may discourage persons from engaging in swap 
activities that might cause them to exceed the major swap participant 
thresholds. This reduction in the use of swaps could be costly if other 
alternatives are not as suitable for the underlying risks (e.g., 
futures might have different contract sizes or expiration, and forward 
contracts introduce physical risks not present in cash settled 
transactions). The CFTC notes that this concern is mitigated by the 
relatively high threshold levels for major swap participant status.
    Other public interest considerations. The specific quantitative 
thresholds in the rule set forth definitive tests for determining if a 
person is covered by the definition of the term ``major swap 
participant.'' This specific, quantitative threshold serves the public 
interest by promoting efficient application of the rule. Also, as noted 
above, major swap participants will be subject to CFTC oversight and 
comprehensive regulation, which we believe will improve the financial 
integrity of swap markets and the U.S. financial system generally.
6. Costs and Benefits of the Rules Relating to the Definition of 
``Eligible Contract Participant''
a. Background
    The ECP regulations and interpretation fall within the following 
six categories:
     CFTC Regulation Sec.  1.3(m)(5)(i) prevents a commodity 
pool (i) in which any of the pool's direct participants is not an ECP 
in its own right and (ii) that directly enters into retail forex 
transactions from being an ECP under CEA section 1a(18)(A)(iv) or (v), 
for purposes of retail forex transactions only. CFTC Regulation Sec.  
1.3(m)(5)(ii) provides that the CFTC would look through a commodity 
pool participant that directly participates in a transaction-level 
commodity pool only if such direct commodity pool participant, any 
entity holding an interest in such direct commodity pool participant, 
or any entity in which such direct commodity pool participant holds an 
interest were structured to evade subtitle A of Title VII of the Dodd-
Frank Act by permitting persons that are not ECPs to participate in 
retail forex transactions. The look-through in CFTC Regulation Sec.  
1.3(m)(5)(ii) does not apply to a non-commodity pool participant in a 
commodity pool.
     CFTC Regulation Sec.  1.3(m)(6) excludes a commodity pool 
from ECP status if it does not have total assets exceeding $5,000,000 
or is not operated by a person described in CEA section 
1a(18)(A)(iv)(II).\1394\
---------------------------------------------------------------------------

    \1394\ 7 U.S.C. 1a(18)(A)(iv)(II).
---------------------------------------------------------------------------

     CFTC Regulations Sec.  1.3(m)(1)-(4) define major swap 
participants, swap dealers, major security-based swap participants and 
security-based swap dealers, respectively, as ECPs.
     CFTC Regulation Sec.  1.3(m)(7) permits an otherwise non-
ECP to qualify as an ECP, with respect to certain swaps, based on the 
collective net worth of its owners, subject to several conditions, 
including that the owners are ECPs.
     CFTC Regulation Sec.  1.3(m)(8) permits a Forex Pool to 
qualify as an ECP notwithstanding that it has one or more direct 
participants that are not ECPs if the Forex Pool (a) is not formed for 
the purpose of evading regulation under CEA sections 2(c)(2)(B) or (C) 
or related rules, regulations or orders, (b) has total assets exceeding 
$10 million and (c) is formed and operated by a registered CPO or by a 
CPO who is exempt from registration as such pursuant to CFTC Regulation 
Sec.  4.13(a)(3).
     Finally, the Commissions have provided an interpretation 
to address an incorrect statutory cross-reference preventing certain 
government entities from qualifying as ECPs under CEA section 
1a(18)(A)(vii).\1395\
---------------------------------------------------------------------------

    \1395\ 7 U.S.C. 1a(18)(A)(vii).
---------------------------------------------------------------------------

b. Summary of Comments
    Commenters stated that commodity pools will incur costs to comply 
with statutory and regulatory requirements made applicable as a result 
of the Commissions' narrowing of the ECP definition.\1396\ Commenters 
argued that to apply the look-through at any investment level would be 
unnecessarily burdensome and disruptive to how commodity pools are 
structured, with resulting costs.\1397\ One commenter advised that, if 
a trading advisor cannot be sure that all pool participants are ECPs, 
then it must be cautious and either register as a CPO or decide not to 
engage in Retail Forex Transactions on behalf of its advised 
pools.\1398\ Another commenter stated that while many existing 
commodity pools have already obtained accredited investor and QEP 
representations from participants, virtually none currently obtain ECP 
representations from their investors.\1399\ This commenter argued that 
obtaining such a representation would impose an operational burden and 
additional costs, as well as require commodity pools to redeem non-
ECPs. The commenter further points out that, given the estimated $1.9 
trillion of assets invested in hedge funds, the portion of those assets 
that use OTC forex is likely to be substantial, and therefore 
substantial time and expense would be expended in determining 
eligibility requirements for the thousands of investors in funds that 
use OTC forex.\1400\
---------------------------------------------------------------------------

    \1396\ See letters from AIMA I, Akin Gump, Sidley, and Willkie 
Farr.
    \1397\ See id.
    \1398\ See letter from AIMA I.
    \1399\ See letter from Sidley.
    \1400\ See id.
---------------------------------------------------------------------------

    Commenters explained that there are costs to losing ECP status and 
that the enumerated counterparty list is unclear and subject to 
uncertainty because it relies on other regulators.\1401\ One commenter 
argues that funds would incur compliance and transaction costs if 
categorized as non-ECPs because they would have to enter into forex 
transactions through a DCM and their operators would have to register 
as CPOs.\1402\ That commenter also states that the markets for 
exchange-traded futures are less liquid than OTC forex markets, and 
that posting initial margin on a DCM is costly, since it cannot be used 
to invest in riskier assets and a FOF would have to invest in liquid 
and low risk (and, commensurately, lower yielding) assets necessary to 
post variation margin. As another commenter points out, the resulting 
increased expenses from the requirement to trade on a DCM and comply 
with retail forex rules may result in higher expenses for hedge and 
private equity funds, which

[[Page 30719]]

they would likely pass along to their investors.\1403\
---------------------------------------------------------------------------

    \1401\ See letters from AIMA I, Akin Gump, and Sidley.
    \1402\ See letter from Sidley.
    \1403\ See letter for Akin Gump. This commenter also said that 
these increased expenses could cause funds to terminate their 
foreign currency hedging, which would increase their investors' 
currency risk, causing higher volatility in the investment industry.
---------------------------------------------------------------------------

    A commenter asserted that the characteristics necessary to avoid 
non-ECP status may prevent free investment and could reduce liquidity 
and create volatility in these markets.\1404\
---------------------------------------------------------------------------

    \1404\ See letter from AIMA I. See generally part III.B.3, 
supra.
---------------------------------------------------------------------------

    With respect to CFTC Regulation Sec.  1.3(m)(6), a commenter 
expressed concerns with the expected costs associated with the proposal 
that commodity pools that do not qualify as ECPs under clause (A)(iv) 
should not be able to qualify under clause (A)(v), stating that the 
proposal would be difficult to comply with and would adversely impact 
investment.\1405\
---------------------------------------------------------------------------

    \1405\ See letter from AIMA I.
---------------------------------------------------------------------------

    Two commenters agreed that the proposed addition of swap dealers, 
security-based swap dealers, major swap participants, and major 
security-based swap participants to the ECP definition provided a 
benefit with little or no costs.\1406\ No commenter objected.
---------------------------------------------------------------------------

    \1406\ See letters from Greenberger and Sidley.
---------------------------------------------------------------------------

    With respect to CFTC Regulation Sec.  1.3(m)(7), commenters said 
that non-ECPs have entered into swaps in reliance on the Swap Policy 
Statement.\1407\ Commenters emphasized the importance of the Swap 
Policy Statement to pass-through entities used by farmers,\1408\ 
operating companies \1409\ and commercial property developers,\1410\ 
noting that such entities may not meet the ECP criteria. According to 
these commenters, these pass-through entities often are small and 
medium-sized businesses that enter into interest rate swaps with 
lending financial institutions in reliance on the Swap Policy 
Statement.\1411\ The commenters explained that the loans usually are 
guaranteed by the principals of the entity entering into the swap, and 
that the borrower would qualify as an ECP if structured as a single-
level corporate entity or sole proprietorship.\1412\ Commenters said 
that if these non-ECP entities were limited to swaps that are available 
on or subject to the rules of a DCM, many regional bank borrowers would 
lose the ability to use swaps, real estate companies would have less 
flexibility in risk management, and smaller lenders would be at a 
competitive disadvantage.\1413\ Another commenter said that Dodd-Frank 
Act provisions such as the end-user clearing exception indicate that 
Congress intended to preserve the availability of swaps used for 
managing risks rather than for investment or speculation.\1414\
---------------------------------------------------------------------------

    \1407\ See letters from B&F I, CDEU and Capstar. One element of 
the Swap Policy Statement required that the swap be entered into in 
connection with each swap counterparty's line of business. See Swap 
Policy Statement at 30697. The CFTC stated when issuing the Swap 
Policy Statement that it ``reflects the [CFTC]'s view that at this 
time most swap transactions, although possessing elements of futures 
or options contracts, are not appropriately regulated as such under 
the [CEA] and [CFTC] regulations.'' Swap Policy Statement at 30694.
    \1408\ See, e.g., letter from Rabobank, New York Branch 
(relating that ``[f]or a variety of estate planning and regulatory 
purposes, farmers commonly hold their ownership interests in land, 
buildings and farm equipment indirectly, through a network of legal 
entities'').
    \1409\ See, e.g., letter from Fifth Third Bank and Union Bank, 
N.A. (advising that ``[i]t is common for an operating business to 
organize a separate limited liability company (for tax and legal 
reasons) to acquire * * * assets * * * and to lease these assets to 
the operating company[, which] becomes the borrow[er] * * * for the 
loan used to acquire those assets'' and that ``[t]he limited 
liability company often does not maintain sufficient capital to 
qualify as an ECP'').
    \1410\ See, e.g., letters from BB&T I, B&F I and Midsize Banks.
    \1411\ See letters from BB&T I and B&F I. Commenters said that 
these businesses may intentionally maintain less than $1 million in 
equity primarily for tax and legal reasons. See letters from Capital 
One and Columbia State Bank (stating that over 65% of its borrowers 
are structured as limited liability companies or S corporations and 
intentionally maintain less than $1 million in equity at the entity 
entering into the swap).
    \1412\ See letter from Columbia State Bank. See also letter from 
BB&T I.
    \1413\ See letters from BB&T I, Capital One, Capstar, Columbia 
State Bank, Midsize Banks, NAREIT and Wells Fargo II.
    \1414\ See letter from FSR I.
---------------------------------------------------------------------------

    To mitigate the impact of restricting non-ECPs to swaps that are 
available on or subject to the rules of DCMs, some commenters said that 
an entity should be able to qualify as an ECP based on the financial 
qualifications of related entities, so long as various conditions 
proposed by the commenters are satisfied. Some commenters said that an 
entity should be eligible to be an ECP if its swap obligations are 
guaranteed by an ECP,\1415\ or if its controlling entity qualifies as 
an ECP under clause (A)(v) of the statutory definition.\1416\ Another 
commenter suggested revisions to the ECP definition that included 
looking to the ECP status or sophistication of the majority owner of an 
entity in determining if the entity itself is an ECP.\1417\ Other 
commenters suggested other provisions to allow non-ECPs to enter into 
swaps other than on or subject to the rules of a DCM, so long as the 
non-ECP meets various conditions indicating that the swap is used in 
connection with its line of business.\1418\
---------------------------------------------------------------------------

    \1415\ See letters from BB&T I, Midsize Banks and Wells Fargo 
II.
    \1416\ See letters from CDEU and Regional Banks.
    \1417\ See letter from NAREIT.
    \1418\ See letters from APGA, Capital One and Gavilon dated 
October 28, 2010.
---------------------------------------------------------------------------

    With respect to CFTC Regulation Sec.  1.3(m)(8), several commenters 
asserted that many Forex Pools are operated by sophisticated, 
professional managers that do not need the protections of a retail 
forex regime designed to protect non-ECPs that are engaging in retail 
forex transactions.\1419\ More specifically, some commenters, based on 
CFTC enforcement actions involving Forex Pools, suggested that 
commodity pools of a sufficient size, and/or operated by a registered 
or exempt CPO, do not pose the risks of fraud and abuse of non-ECP 
customers that the statutory look-through provision is intended to 
address.\1420\
---------------------------------------------------------------------------

    \1419\ See letters from Millburn and Sidley.
    \1420\ See letters from GXFD I and Sidley.
---------------------------------------------------------------------------

    As a result, commenters suggested that the look-through provision 
should not apply in determining ECP status of commodity pools that meet 
certain conditions. For example, commenters suggested that the look-
through not be applied to a commodity pool with $10 million in total 
assets if other factors were present--e.g., not structured to 
evade,\1421\ subject to regulation under the CEA \1422\ and/or 
operation by a registered CPO.\1423\ Another commenter suggested 
requiring the total assets or minimum initial investment of a Forex 
Pool to be sufficiently large that, in general, only legitimate pools 
would exceed such thresholds.\1424\ This commenter suggested a total 
asset threshold of $50 million.\1425\
---------------------------------------------------------------------------

    \1421\ See letter from GFXD II.
    \1422\ See letters from GFXD II and Skadden.
    \1423\ See meeting with SIFMA on January 20, 2012.
    \1424\ See letter from Sidley.
    \1425\ See id.
---------------------------------------------------------------------------

    Separately, one commenter also claimed that the statutory look-
through, if strictly implemented, might inappropriately preclude Forex 
Pools and their CPOs, many of whom are registered, from engaging in 
retail forex transactions with swap dealers because swap dealers are 
not Enumerated Counterparties (and some swap dealers also may not be 
Enumerated Counterparties in a different capacity, such as being a U.S. 
financial institution).\1426\ This commenter stated that such a result 
could reduce close out netting opportunities in the event of the 
insolvency of a counterparty.
---------------------------------------------------------------------------

    \1426\ See letter from GFXD I.
---------------------------------------------------------------------------

    Finally, to reduce the adverse effects on government entities that 
may need to qualify as ECPs based on their swap

[[Page 30720]]

counterparties but that would be foreclosed from doing so due to an 
erroneous reference in the definition of ECP, a commenter requested the 
correction of that erroneous reference.\1427\
---------------------------------------------------------------------------

    \1427\ See letter from Wells Fargo I.
---------------------------------------------------------------------------

c. Response to Comments and Consideration of Costs and Benefits in the 
Final Rule
    CFTC Regulation Sec.  1.3(m)(5)(i) reduces the number of pools that 
need to determine the ECP status of their natural person participants, 
and thus reduces related costs, because it limits, absent evasion, the 
pools the CFTC considers for look-through purposes to transaction-level 
retail forex pools. The guidance the Commissions provide in the 
preamble also reduces the scope of the potential look-through, with 
attendant cost-reductions, by stating expressly that a Retail Forex 
Pool using retail forex transactions solely to hedge or mitigate 
currency risk would not be considered structured to evade. Thus, such 
hedging or mitigation would not be the basis of a look-through. In 
particular, because, according to a commenter, the typical FOF uses 
retail forex transactions solely to hedge currency risk related to 
fluctuations in the exchange rate between non-U.S. dollar subscription 
currencies and the U.S. dollar, most, if not all, FOFs would not be 
covered by the look-through. To the extent other commodity pools use 
retail forex transactions solely to hedge or mitigate their currency 
risk, such pools also would not be subject to the CFTC Regulation Sec.  
1.3(m)(5)(ii) look-through provision. Because Regulation Sec.  
1.3(m)(5)(ii) provides a look through only in cases of evasion and the 
Commissions' guidance narrows considerably the scope of what might 
otherwise be considered evasion, the CFTC expects the CPO of the 
typical pool to be able to determine at little or no cost the ECP 
status of their direct participant commodity pools; such status will be 
based on CEA section 1a(18)(iv), an analysis with which such CPOs are 
familiar.\1428\
---------------------------------------------------------------------------

    \1428\ While the Commissions are adding additional detail 
explaining the scope of CEA section 1a(18)(A)(iv)(II), the 
Commissions also provide guidance on that explanation. As a result, 
the CFTC does not believe that the upfront costs of determining ECP 
status under CEA section 1a(18)(A)(iv) will significantly increase.
---------------------------------------------------------------------------

    While the CFTC has provided guidance to reduce the costs of 
applying the rule, it estimates that each affected CPO may have to 
spend between 5 and 20 hours of legal time, representing a cost between 
$1,800 and $7,100,\1429\ initially to determine the ECP status of the 
pools that they operate, and up to 5 hours ($1,800) of additional legal 
time to determine such status upon each change to the fund's structure, 
operating guidelines, etc. that might implicate ECP status. Commenters 
noted that drafting ECP representations and contacting existing 
participants are part of the costs of determining ECP status. While the 
CFTC acknowledges such costs, CFTC Regulation Sec.  1.3(m)(5) also 
provides investor protection benefits to non-ECP participants in pools 
that are not ECPs by requiring such pools to enter into retail forex 
transactions with an Enumerated Counterparty. This provides non-ECP 
participants in such pools the protections of the retail forex regime 
imposed by such counterparty's federal regulator.
---------------------------------------------------------------------------

    \1429\ The CFTC computed these totals by assuming from 5 to 20 
hours of legal review by a compliance attorney at $355/hour based on 
the 2010 SIFMA survey. See SIFMA, Report on Management and 
Professional Earnings in the Securities Industry--2010. If we assume 
that 5,000 potential commodity pools need to make this determination 
and round to two significant digits, this results in a total 
approximate cost of $8.9 million to $36 million. As is the case for 
the application of the definitions of the terms ``swap dealer'' and 
``major swap participant,'' these costs reflect a higher multiplier 
because some persons may retain outside advisors to assist in making 
the determinations under the rules.
---------------------------------------------------------------------------

    The CFTC also notes that the number of categories of enumerated 
counterparties available as counterparties to non-ECP commodity pools 
has increased since the Commissions proposed the regulations, because 
other regulators have finalized their retail forex regimes, as 
discussed in greater detail above. While trading with Enumerated 
Counterparties will entail doing so pursuant to the retail forex 
regulations of the relevant federal regulator, such regulations will 
apply to the counterparties, not the CPO. While CPOs of Retail Forex 
Pools generally must register as such with the CFTC, to the extent an 
exemption from registration is available under the CFTC's rules, such 
CPOs need not register as a result of their retail forex transactions, 
further reducing the potential costs of Regulations Sec. Sec.  
1.3(m)(5)(i) and (ii). Further, commodity pools will not incur any 
costs to change counterparties (with the accompanying costs of, for 
example, putting in place new trading documentation) to the extent they 
already trade with Enumerated Counterparties. Commenters noted that 
non-ECP pools would incur costs to negotiate new trading documentation 
with Enumerated Counterparties to the extent that such pools do not 
currently enter into retail forex transactions with Enumerated 
Counterparties and wish to continue to engage in retail forex 
transactions other than on or subject to the rules of a DCM. However, 
Regulation Sec.  1.3(m)(5) also provides investor protection benefits 
to non-ECP participants in pools that enter into retail forex 
transactions by requiring such pools to trade with Enumerated 
Counterparties and to be operated by registered CPOs, absent an 
applicable exemption.
    To the extent that a commodity pool is precluded by CFTC Regulation 
Sec.  1.3(m)(6) from achieving ECP status based on prong (A)(v) of the 
ECP definition, the pool will be limited to trading swaps, if at all, 
on or subject to the rules of a DCM. This could result in costs to 
affected commodity pools, including margin, the costs of establishing 
relationships with future commission merchants (e.g., reviewing new 
account opening documentation) and opportunity costs from losing the 
ability to trade swaps customized to pools' needs. Preventing commodity 
pools that do not qualify under clause (A)(iv) from qualifying pursuant 
to clause (v), however, closes a loophole that would allow smaller 
commodity pools that are not able to satisfy the requirements of clause 
(A)(iv) of the ECP definition to qualify as ECPs. Moreover, by 
providing additional clarification in the preamble regarding the 
meaning of CEA section 1a(18)(A)(iv)(II), the Commissions substantially 
reduced the potential number of commodity pools affected by CFTC 
Regulation Sec.  1.3(m)(6).
    CFTC Regulations Sec. Sec.  1.3(m)(1)-(4) define major swap 
participants, swap dealers, major security-based swap participants and 
security-based swap dealers, respectively, as ECPs. Stating explicitly 
in regulations that these entities are ECPs avoids the potentially 
anomalous result of such entities, which are some of the largest and/or 
most active swap market participants, not being ECPs and is in line 
with expectations in the market that these entities may engage in a 
full range of swap and security-based swap activities. The CFTC 
believes that these regulations will not result in any significant 
economic costs or benefits.
    The CFTC is persuaded by commenters that allowing participants to 
continue to rely on the line of business element of the Swaps Policy 
Statement will mitigate unnecessary costs from the regulation but is 
adding various conditions to retain adequate protection for market 
participants and the public. As noted above, CFTC Regulation Sec.  
1.3(m)(7) permits an entity,

[[Page 30721]]

in determining its net worth for purposes of subclause (A)(v)(III) of 
the ECP definition,\1430\ to include the net worth of its owners, 
solely for purposes of determining its ECP status for swaps used to 
hedge or mitigate commercial risk, provided that all of its owners are 
themselves ECPs (disregarding shell companies, as defined above). Under 
CFTC Regulation Sec.  1.3(m)(7) as adopted, an entity seeking to 
qualify under subclause (A)(v)(III) of the ECP definition in order to 
enter into a swap used to hedge or mitigate commercial risk is 
permitted to count the net worth of its owners in determining its own 
net worth, so long as all its owners are ECPs. Accordingly, CFTC 
Regulation Sec.  1.3(m)(7) will allow qualified participants the 
flexibility to enter into customized swaps.
---------------------------------------------------------------------------

    \1430\ CEA section 1a(18)(A)(v)(III) provides that ``a 
corporation, partnership, proprietorship, organization, trust, or 
other entity * * * that (aa) has a net worth exceeding $1,000,000; 
and (bb) enters into an agreement, contract, or transaction in 
connection with the conduct of the entity's business or to manage 
the risk associated with an asset or liability owned or incurred or 
reasonably likely to be owned or incurred by the entity in the 
conduct of the entity's business'' is an ECP. 7 U.S.C. 
1a(18)(A)(v)(III).
---------------------------------------------------------------------------

    By limiting the line of business ECP prong to entities owned solely 
by ECPs, the CFTC is preserving the intent behind the ECP requirement, 
which is to limit the availability of customized swaps to market 
participants of sufficient financial sophistication and with sufficient 
assets or net worth to assess, appreciate and bear the implications and 
risks of swap transactions. Although commenters proposed various 
solutions to address the loss of the Swap Policy Statement, the CFTC 
believes the approach adopted is the best approach; it substantively 
preserves the ECP requirement and protects the real parties in interest 
(i.e., the owners). Although banks and non-ECP borrowers might be able 
to restructure or more highly capitalize borrowing entities or borrow 
at a higher level in the ownership structure, this regulation will 
allow banks and qualified businesses to continue to conduct their loan 
arrangements as usual without incurring the costs, which could include 
undesirable tax treatment, of such operational changes. Further, 
because commenters focused on swap related risks, the Commissions 
limited this regulation's application narrowly, i.e., it does not apply 
for purposes of determining ECP status for: swaps not meeting the 
conditions set forth in Regulation Sec.  1.3(m)(7); security-based 
swaps; security-based swap agreements; mixed swaps; or agreements, 
contracts or transactions that are not swaps (regardless of the purpose 
for which they are used).
    CFTC Regulation Sec.  1.3(m)(8) permits a Forex Pool to qualify as 
an ECP notwithstanding that it has one or more direct participants that 
are not ECPs if the Forex Pool (a) is not formed for the purpose of 
evading regulation under CEA sections 2(c)(2)(B) or (C) or related 
rules, regulations or orders, (b) has total assets exceeding $10 
million and (c) is formed and operated by a registered CPO or by a CPO 
who is exempt from registration as such pursuant to CFTC Regulation 
Sec.  4.13(a)(3). The data presented by commenters, discussed above, 
demonstrate that registered CPOs \1431\ of commodity pools over a 
certain size ($10 million in total assets) historically have engaged in 
retail forex misconduct to a much less significant degree than other 
CPOs. Only one of the 45 unique cases presented by commenters involved 
a pool with more than $10 million in total assets and a registered CPO. 
Only two of those cases involved a pool operated by CPOs exempt from 
registration: in both of those cases, however, the CPO raised less than 
$10 million.\1432\ The CFTC also recognizes that subjecting such 
commodity pools to the statutory look-through provision to protect non-
ECP customers from fraud and abuse would cause them to incur higher 
costs (e.g., CPO compliance costs for those CPOs required to register 
as such, and redocumenting trading relationships with new 
counterparties who are Enumerated Counterparties), for intangible pool 
participant protections. To further protect pool participants, the 
Commissions added a requirement that, to be an ECP under the line of 
business prong, the Forex Pool must not be formed for the purpose of 
evading CFTC regulation of Retail Forex Pools and retail forex 
transactions under CEA Section 2(c)(2)(B) or (C). Accordingly, the 
Commissions have tailored CFTC Regulation Sec.  1.3(m)(8) in a manner 
they believe preserves its ability to effectively protect market 
participants and the public, while avoiding significant costs.
---------------------------------------------------------------------------

    \1431\ CFTC Regulation Sec.  1.3(m)(8) as adopted requires that 
the CPO of the Forex Pool be registered as a CPO with the CFTC. The 
Commissions believe that this condition is appropriate because it 
will ensure that the NFA oversees compliance by those CPOs relying 
on this new regulation.
    \1432\ In addition, one of those CPOs relied on the CFTC 
Regulation Sec.  4.13(a)(4) CPO registration exemption. As discussed 
above, the CFTC has withdrawn that exemption.
---------------------------------------------------------------------------

    As noted above, CEA section 1a(18)(A)(vii)(cc) contains a statutory 
cross-reference rendered incorrect due to a legislative drafting 
oversight. Failing to address such error would inappropriately deprive 
such entities of ECP status, imposing undue costs (e.g., the 
opportunity costs of being unable to execute a desired hedge or trading 
strategy using standardized exchange-traded swaps) on such entities. 
Allowing a government entity the ability to qualify as an ECP based on 
its counterparty's status will provide, at little or no cost, the 
benefit of effectuating Congressional intent that government entities 
satisfying the conditions of CEA section 1a(18)(A)(vii)(cc) be ECPs. 
Therefore, the CFTC included in the preamble an interpretation treating 
as an ECP government entities satisfying the conditions of CEA section 
1a(18)(A)(vii)(cc) as if such section incorporated the correct cross-
reference. The CFTC believes that correcting this incorrect cross-
reference will not result in any significant economic costs or 
benefits.
d. CEA Section 15(a) Discussion
    Protection of market participants and the public. Congress 
determined to protect retail foreign exchange investors from fraudsters 
by amending the ECP definition to require a pool's participants to 
qualify as ECPs for the pool to be an ECP under subsection 
(A)(iv).\1433\ As discussed above, this protection, as implemented by 
CFTC Regulation Sec.  1.3(m)(5) may raise the costs of legitimate 
foreign exchange transactions. To mitigate these potential increased 
costs, CFTC Regulations Sec.  1.3(m)(5)(i) limits the look-through to 
the level of the commodity pool structure that engages in retail forex 
transactions, subject to CFTC Regulation Sec.  1.3(m)(5)(ii). This 
limitation provides that, if any level of the pool has been structured 
to evade, the CFTC would look through the transaction-level commodity 
pool's direct commodity pool participants indefinitely until reaching 
non-commodity pool participants. CFTC Regulation Sec.  1.3(m)(5), 
therefore, protects non-ECP members of the public in appropriate 
instances.
---------------------------------------------------------------------------

    \1433\ Accord letter from AIMA I.
---------------------------------------------------------------------------

    By limiting the line of business ECP prong to entities owned solely 
by ECPs, the CFTC is preserving the intent behind the ECP requirement, 
which is to limit the availability of customized swaps to market 
participants of sufficient financial sophistication to assess and 
appreciate the risk and implications of the transactions. Although 
commenters proposed various solutions to address the loss of the Swap 
Policy Statement, the CFTC believes the

[[Page 30722]]

approach adopted is the best approach because it preserves the 
substance of the ECP requirement and protects the real parties in 
interest (i.e., the owners).
    Because registered CPOs,\1434\ and CPOs exempt from registration, 
who operate commodity pools over a certain size ($10 million in total 
assets) historically have engaged in retail forex misconduct to a much 
less significant degree than CPOs of commodity pools below that 
threshold, the CFTC believes that imposing this size threshold 
requirement as a condition of ECP status pursuant to Regulation Sec.  
1.3(m)(8) provides some protection to pool participants. The additional 
requirement that to be an ECP under the line of business prong the 
Forex Pool must not be formed for the purpose of evading CFTC 
regulation of Retail Forex Pools and retail forex transactions under 
CEA Section 2(c)(2)(B) or (C) will further protect pool participants.
---------------------------------------------------------------------------

    \1434\ CFTC Regulation Sec.  1.3(m)(8) as adopted requires that 
the CPO of the Forex Pool be registered as a CPO with the CFTC. This 
condition is appropriate because it will ensure that the NFA 
oversees compliance by those CPOs relying on this new regulation.
---------------------------------------------------------------------------

    Efficiency, competitiveness, and the financial integrity of the 
market. With respect to CFTC Regulation Sec. Sec.  1.3(m)(5) and (6), 
commodity pools that do not qualify as ECPs may have to use products 
listed on or subject to the rules of a DCM that might not precisely (or 
at all) match such parties' needs. This may reduce or eliminate a 
commodity pool's ability to engage in some transactions, but these 
regulations also seek to prevent unsophisticated parties from entering 
into certain transactions to prevent repeated abuses and protect 
members of the public. We believe CFTC Regulations Sec. Sec.  
1.3(m)(1)-(8) do not significantly impact competitiveness or the 
financial integrity of markets.
    Price discovery. CFTC Regulations Sec. Sec.  1.3(m)(1)-(8) only 
clarify the status of entities. They do not affect price discovery.
    Sound risk management practices. CFTC Regulations Sec. Sec.  
1.3(m)(5) and (6) may restrict investment opportunities for certain 
non-ECPs that might have otherwise qualified as ECPs.\1435\ This may 
discourage the use of some sound risk management practices and/or 
investment strategies. For instance, it may become more expensive for 
CPOs operating non-ECP pools to use such practices and/or strategies if 
such pools must enter into swaps on or subject to the rules of a DCM or 
come into compliance with a retail forex regime or choose to redeem 
non-ECPs to avoid such results. On the other hand, CPOs may not incur 
the increased expense of such sound risk management practices and/or 
investment strategies if they are able to pass such costs on to the 
participants in the pools. Also, with respect to swaps, pools that are 
not ECPs due to CFTC Regulation Sec.  1.3(m)(6) can enter swaps on or 
subject to the rules of a DCM to the extent an appropriate swap is 
listed by such DCM.
---------------------------------------------------------------------------

    \1435\ CFTC Regulations Sec.  1.3(m)(1)-(4) and the interpretive 
guidance regarding certain governmental ECPs have the opposite 
effect, making investment opportunities available to certain ECPs 
that might otherwise not have qualified as ECPs.
---------------------------------------------------------------------------

    In contrast, CFTC Regulations Sec. Sec.  1.3(m)(7) and (8) allow 
qualified participants to engage in swaps that are not on a DCM. This 
gives qualified participants more choices for their hedges, and may 
provide an opportunity for better risk management.
    Other public interest considerations. CFTC Regulations Sec. Sec.  
1.3(m)(1)-(4) state that major swap participants, swap dealers, major 
security-based swap participants, and security-based swap dealers, 
respectively, are ECPs. The interpretive guidance regarding certain 
governmental ECPs remedies an incorrect statutory cross-reference with 
respect to the ability of a subset of governmental entities to qualify 
as ECPs under CEA section 1a(18)(A)(vii).\1436\
---------------------------------------------------------------------------

    \1436\ 7 U.S.C. 1a(18)(A)(vii).
---------------------------------------------------------------------------

VIII. Administrative Law Matters--Exchange Act Revisions (Definitions 
of ``Security-Based Swap Dealer'' and ``Major Security-Based Swap 
Participant'')

A. Economic Analysis

1. Overview
    The SEC is sensitive to the costs and benefits of our rules. Some 
of these costs and benefits stem from statutory mandates, while others 
are affected by the discretion we exercise in implementing the 
mandates. We have requested comment on all aspects of the costs and 
benefits of the proposal, including any effect our proposed rules may 
have on efficiency, competition, and capital formation. In considering 
the economic consequences of these final rules, moreover, we have been 
mindful of the link between the scope of the persons who are deemed to 
be dealers or major participants pursuant to these rules and the costs 
and benefits associated with the regulatory requirements that are 
applicable to dealers and major participants, as well as the direct 
assessment costs (as defined below) these rules will impose on certain 
market participants.
    As the SEC noted in the Proposing Release, the definitions of 
``security-based swap dealer'' and ``major security-based swap 
participant'' implicate two categories of potential costs. First, there 
are costs that arise from the regulatory requirements that will apply 
to those types of entities (e.g., the registration, margin, capital and 
business conduct requirements that would apply to dealers and major 
participants).\1437\ The Proposing Release also noted that there are 
costs that entities will incur in determining whether they fall within 
the definitions of ``security-based swap dealer'' and ``major security-
based swap participant.'' \1438\ Commenters that addressed these issues 
discussed both types of costs.\1439\ Our consideration of these issues 
has been informed by the comments we received.
---------------------------------------------------------------------------

    \1437\ See Proposing Release, 75 FR at 80206.
    \1438\ See Proposing Release, 75 FR at 80206-07.
    \1439\ See, e.g., letters from Representatives Bachus and Lucas 
(``Casting an overly-broad net in defining these terms could force 
some smaller participants to leave the marketplace as a result of 
increased costs, or eliminate certain types of contracts used for 
hedging. If either occurs, businesses will be left exposed to market 
volatility and the consequences will ultimately be felt by Americans 
in the forms of increased consumer costs.''); ISDA (suggesting that 
imposing dealer regulation beyond persons whose business is to make 
markets would be inconsistent with the Dodd-Frank Act's intent to 
preserve growth and innovation in the swap markets); ABC/CIEBA 
(stating that major participant thresholds will cause persons who 
pose no systemic risk to incur substantial costs associated with 
major participant registration and regulation); SIFMA-AMG 
(addressing complexity and burden of analyzing potential status as a 
major participant, and urging implementation of a calculation safe 
harbor).
---------------------------------------------------------------------------

    In adopting these final rules, we have sought to take into account 
the broader costs and benefits associated with the regulation of 
security-based swap dealers and major security-based swap participants, 
which we refer to in this section as ``programmatic'' costs and 
benefits. We have also considered the direct costs that persons would 
incur to assess whether they fall within the dealer or major 
participant definitions or to assess the potential availability of 
limited registration as a dealer or major participant. We refer to 
these costs as ``assessment'' costs.\1440\ The programmatic costs and 
benefits and the assessment costs raise distinct analytic issues.
---------------------------------------------------------------------------

    \1440\ We expect that the benefits resulting from the 
identification and registration of dealers and major security-based 
participants will likely accrue primarily at the programmatic level. 
To the extent appropriate given the purposes of Title VII, we have 
sought to mitigate the costs entities will incur in connection with 
such identification and registration.
---------------------------------------------------------------------------

    We discuss below certain of the costs and benefits--both 
programmatic and assessment-related--that we have considered in 
adopting these rules. These costs and benefits have informed the policy 
choices described above.

[[Page 30723]]

Accordingly, the analysis below includes references throughout to the 
earlier discussions of the policy decisions taken by the Commissions.
    In considering the costs and benefits of these rules, we are 
mindful of the various considerations that must be taken into account 
in establishing the baseline against which those costs and benefits may 
be evaluated. A key consideration is that the definitions, while 
integral to the regulatory requirements that will be imposed on dealers 
and major participants pursuant to Title VII, do not themselves 
establish the scope or nature of those substantive requirements or 
their related costs and benefits. In light of this consideration 
associated with definitional rulemaking, the baseline we are using to 
consider the costs and benefits associated with the definitions 
presumes that the other Title VII rules that implement the statutory 
requirements applicable to security-based swap dealers and major 
security-based swap participants will be adopted (and will be the 
subject of their own economic analysis), but as yet there are no 
dealers or major participants subject to any of these requirements. The 
costs and benefits described below are therefore those that may arise 
in connection with (1) identifying a subset of current and future 
market participants as either security-based swap dealers or major 
security-based swap participants (i.e., the assessment costs) and (2) 
subjecting that subset, through the definitional lines we are drawing, 
to a complete, fully effective complement of Title VII statutory and 
regulatory requirements (i.e., the programmatic costs and benefits).
    Accordingly, in determining the appropriate scope of the 
definitions being adopted in these rules, we considered what type of 
persons should be regulated as dealers and major participants under 
Title VII, in light of the purposes of the statute, the overall 
regulatory framework, and the data currently available to us. We thus 
have sought to adopt regulations that would include entities within the 
scope of the dealer and major participant definitions to the extent 
that encompassing persons with their level of security-based swap 
activities or positions would be necessary and appropriate given the 
purposes of the statute (for example, because the institution may pose 
market or other risks of the type addressed by Title VII). Conversely, 
to the extent that we expect that the regulation of certain types of 
market participants would not serve the statutory purposes, we have 
sought to exclude them from the scope of the definitions, thereby 
reducing unnecessary burdens on entities whose regulation may not be 
necessary or appropriate to further the purposes of the statute.
    We recognize that the costs and benefits arising from these rules 
will affect competition, efficiency, and capital formation in the 
security-based swap market broadly, with the impact not being limited 
to the specific entities that fall within the meaning of the terms 
``security-based swap dealer'' and ``major security-based swap 
participant.'' In the sections that follow we begin with a 
consideration of the costs and benefits of the rule that affect the 
regulated market participants that fall within the meaning of these 
terms, and conclude with a consideration of the potential effects of 
this rule on competition, efficiency, and capital formation.
2. Programmatic Costs and Benefits Associated With These Definitions' 
Scope
a. Programmatic Costs
    The scope of these definitions will directly affect the number of 
market participants subject to Title VII and the rules thereunder and 
thus will directly affect the overall costs associated with the 
regulation of dealers and major participants pursuant to Title VII. 
Persons who fall within the statutory definitions of security-based 
swap dealer and major security-based swap participant, as further 
defined by these rules, will incur a number of upfront costs and 
ongoing costs in connection with their status as dealers or major 
participants. Those include, but are not limited to, costs of complying 
with requirements related to: registration; reporting, recordkeeping, 
confirmation and documentation; sales practices; margin, capital and 
segregation of customer collateral; and maintaining a chief compliance 
officer.\1441\ We expect that the significance of those programmatic 
costs will outstrip the more discrete and entity-specific assessment 
costs (discussed in more detail below) that individual entities will 
incur in determining whether they fall within the dealer and major 
participant definitions.
---------------------------------------------------------------------------

    \1441\ For example, dealers and major participants will be 
subject to business conduct requirements of section 15F of the 
Exchange Act, and thus will be required, among other things, to 
determine that their counterparty meets certain eligibility 
standards before entering into security-based swaps with them and to 
disclose information about material risks and characteristics, 
material incentives, conflicts of interest, the daily mark, and 
clearing rights. See Securities Exchange Act Release No. 64766 (June 
29, 2011), 76 FR 42396, 42406, 42410 (July 18, 2011). Also, for 
example, in connection with registration requirements we expect 
security-based swap dealers and major security-based swap 
participants to incur costs in connection with completing and filing 
forms, providing related certifications, addressing additional 
requirements in connection with associated persons, as well as 
certain additional costs. See Securities Exchange Act Release No. 
65543 (Oct. 12, 2011), 76 FR 65784, 65813-18 (Oct. 24, 2011). The 
costs associated with these and other substantive rules applicable 
to dealers and major participants are being addressed in more detail 
in connection with the applicable rulemakings.
---------------------------------------------------------------------------

    The programmatic costs linked to compliance by regulated entities 
with specific requirements are not the only overall costs associated 
with the regulation of dealers and major participants. Other potential 
costs associated with the establishment of a new regulatory structure 
over dealers and major participants, such as costs related to the 
potential reduction of competition in the market, the deterrence of new 
entrants, or reductions in capital formation, are discussed more fully 
below.\1442\
---------------------------------------------------------------------------

    \1442\ See part VIII.A.4, infra.
---------------------------------------------------------------------------

b. Programmatic Benefits
    The regulation of dealers and major participants also will provide 
a number of programmatic benefits to the security-based swap market and 
to market participants. As discussed above,\1443\ registered security-
based swap dealers and major participants will be subject to a number 
of entity-level and transaction-level requirements that we expect to 
produce a broad array of benefits consistent with the purposes of Title 
VII.\1444\
---------------------------------------------------------------------------

    \1443\ See part II.D.3.a, supra.
    \1444\ In application, the programmatic requirements applicable 
to security-based swap dealers may differ from the programmatic 
requirements applicable to major security-based swap participants. 
For example, the proposed business conduct rules applicable to 
dealers include ``know your customer,'' suitability and ``pay to 
play'' requirements that would not also apply to major participants. 
See Exchange Act Release No. 64766 (June 29, 2011), 76 FR 42396, 
42399-401 (July 18, 2011).
---------------------------------------------------------------------------

    For example, section 15F(e) of the Exchange Act and related rules 
impose capital and margin requirements on dealers and major 
participants,\1445\ which will reduce the financial risks of these 
institutions and contribute to the stability of the security-based swap 
market in particular and the U.S. financial system more generally. 
Section 3E of the Exchange Act, among other things, requires security-
based swap dealers that collect margin from counterparties to cleared 
security-based swap transactions to maintain that collateral in 
segregated accounts, as well as providing counterparties to uncleared 
security-based swap transactions with security-based swap dealers and 
major

[[Page 30724]]

security-based swap participants with the right to require the 
segregation of assets held as collateral with an independent third-
party custodian. These protections provide market participants who 
enter into transactions with these entities confidence that their 
collateral accounts will remain separate from the dealer or major 
participant's assets in the event of bankruptcy.\1446\ Title VII also 
requires registered entities to implement risk management policies and 
procedures that should allow them to avoid taking on excessive risk and 
to better deal with market fluctuations that might otherwise endanger 
the financial health of the entity.\1447\
---------------------------------------------------------------------------

    \1445\ See Exchange Act section 15F(e).
    \1446\ See Exchange Act section 3E.
    \1447\ See Exchange Act section 15F(j)(2).
---------------------------------------------------------------------------

    Title VII further imposes a range of business conduct requirements 
upon these registered entities, which should deter fraudulent or 
deceptive conduct and increase information transparency for customers 
and counterparties seeking to access the security-based swap market. 
For example, section 15F(h)(3)(B) of the Exchange Act and related rules 
establish certain disclosure requirements for dealers and major 
participants,\1448\ while section 15F(h)(3)(C) of the Act and related 
rules require that communications by these entities meet certain 
standards of fairness and balance.\1449\ Section 15F(j)(5) of the Act 
and related rules introduce requirements intended to address potential 
conflicts of interest that may arise in transactions between a dealer 
or major participant and its counterparty.\1450\ Title VII also 
establishes higher levels of protection for special entities entering 
into transactions with dealers or major participants.\1451\ As we 
discuss in more detail in our analysis of the competitive effects of 
these rules, these protections, and the related increase in 
transparency in dealings with registered entities may be expected to 
improve the competitiveness and efficiency of the market.
---------------------------------------------------------------------------

    \1448\ See Exchange Act section 15F(h)(3)(B).
    \1449\ See Exchange Act section 15F(h)(3)(C).
    \1450\ See Exchange Act section 15F(j)(5).
    \1451\ See Exchange Act sections 15F(h)(2), (h)(4), (h)(5).
---------------------------------------------------------------------------

    Finally, Title VII also imposes requirements that are designed to 
promote effective market operation and transparency. Sections 15F(f), 
(g), and (j)(3) of the Exchange Act and related rules impose certain 
reporting, recordkeeping, and regulatory disclosure requirements upon 
registered entities, which should enhance the volume and quality of 
information available in the market and facilitate effective oversight 
by the Commission.\1452\ Section 15F(i) establishes regulatory 
standards related to the confirmation, processing, netting, 
documentation and valuation of security-based swaps, which should 
enhance the efficiency of the procedures surrounding the execution of 
security-based swap transactions.\1453\
---------------------------------------------------------------------------

    \1452\ See Exchange Act section 15F(f) (reporting and 
recordkeeping requirements); Exchange Act section 15F(g) (daily 
trading records requirements); and Exchange Act section 15F(j)(3) 
(requirements related to the disclosure of information to 
regulators).
    \1453\ See Exchange Act section 15F(i).
---------------------------------------------------------------------------

    We expect that the regulation of security-based swap dealers and 
major participants through these provisions will advance the 
transparency, risk reduction and counterparty protection purposes of 
Title VII.\1454\ While these benefits will be significant, they will 
not be entirely measurable, as it is not possible to quantify the 
benefits of mitigating or avoiding a future financial crisis, or the 
benefits of avoiding an unsuitable security-based swap 
transaction.\1455\ Those benefits, moreover, can be expected to 
manifest themselves over the long-term and be distributed over the 
market as a whole.
---------------------------------------------------------------------------

    \1454\ Prior to the enactment of the Dodd-Frank Act, a Treasury 
Department blueprint for financial reform articulated benefits of 
comprehensive regulation of derivatives: ``OTC derivatives markets, 
including CDS markets, should be subject to comprehensive regulation 
that addresses relevant public policy objectives: (1) preventing 
activities in those markets from posing risk to the financial 
system; (2) promoting the efficiency and transparency of those 
markets; (3) preventing market manipulation, fraud, and other market 
abuses; and (4) ensuring that OTC derivatives are not marketed 
inappropriately to unsophisticated parties.'' Department of the 
Treasury, Financial Regulatory Reform--A New Foundation 46-47 
(2009).
    \1455\ See note 421, supra. The significance of these potential 
benefits is suggested by the 2008 financial crisis. Better Markets 
cited estimates that the worldwide cost of the 2008 financial crisis 
in terms of lost output was between $60 trillion and $200 trillion, 
depending primarily on the long-term persistence of the effects. See 
letter from Better Markets. We recognize, however, that this 
estimate addresses the aggregate cost of the financial crisis, and 
that Title VII is directed to only one aspect of the factors that 
contributed to the crisis.
---------------------------------------------------------------------------

c. The Relation Between These Rules and the Programmatic Costs and 
Benefits
    In adopting these final rules, we recognize that: (a) The choices 
reflected by these rules will affect how many persons and which persons 
ultimately will be deemed to be dealers or major participants; and (b) 
those results, combined with the substantive requirements that are to 
be adopted in connection with the dealer and major participant 
regulatory regime, ultimately will determine the programmatic costs and 
benefits that will be associated with the substantive regulation of 
dealers and major participants.
    This is not to say that there would be a one-to-one correlation 
between the regulation (or non-regulation) of any particular entity as 
a dealer or major participant and the additional (or reduced) 
programmatic costs and benefits that would be associated with the 
regulation (or non-regulation) of that entity. Some of the costs of 
regulating a particular person as a dealer or major participant, such 
as costs of registration, may largely be fixed. At the same time, other 
costs associated with regulating that person as a dealer or major 
participant (e.g., costs associated with margin and capital 
requirements) may be variable, reflecting the level of the person's 
security-based swap activity. Similarly, the regulatory benefits that 
would arise from deeming that person to be a dealer or major 
participant (e.g., benefits associated with increased transparency and 
efficiency, and reduced risks faced by customers and counterparties), 
although not quantifiable, may be expected to be variable in a way that 
reflects the person's security-based swap activity. In addition, it is 
reasonable to believe that the implementation of Title VII itself will 
change the security-based swap market, and, with the full 
implementation of Title VII--which in part is conditioned on these 
definitions--more information will be available for this 
analysis.\1456\
---------------------------------------------------------------------------

    \1456\ The lack of market data is particularly significant in 
the context of total return swaps on equity and debt. We do not have 
the same amount of information regarding those products as we have 
in connection with the present market for single-name credit default 
swaps.
---------------------------------------------------------------------------

    Given these limitations on our ability to conduct a quantitative 
assessment of the programmatic costs and benefits associated with these 
definitional terms, we have considered these costs and benefits 
primarily in qualitative terms. In that framework it is possible to 
identify a subset of such entities that, because of the volume of their 
dealing activity or the size of their security-based swap exposure, 
appear to be the types of entities for which the other statutory 
requirements of Title VII were created. We have therefore sought to 
adopt definitions that would capture these entities, as the statute 
requires us to do, without imposing the costs of Title VII on those 
entities for which regulation currently may not be justified in light 
of those purposes. We believe that this approach will maximize the 
benefits provided by Title VII while minimizing costs to the extent

[[Page 30725]]

consistent with the purposes of the statute.
    Moreover, as discussed above, the SEC has directed the staff to 
report to the Commission on all aspects of the dealer and major 
participant definitions no later than three years following the later 
of: (i) the last compliance date for the registration and regulatory 
requirements for security-based swap dealers and major security-based 
swap participants under Section 15F of the Exchange Act; and (ii) the 
first date on which compliance with the trade-by-trade reporting rules 
for credit-related and equity-related security-based swaps to a 
registered security-based swap data repository is required. This report 
will provide the SEC and market participants with more information 
about the security-based swap market following the implementation of 
Title VII--including information regarding the business of dealers and 
major participants, the characteristics of positions they and other 
market participants hold, the structure of the market, and how Title 
VII has affected those aspects of the market. This report, which will 
take into account the additional data from our observations of the 
security-based swap market and the functioning of the associated 
regulatory requirements, is intended to help the SEC assess whether to 
make changes to the scope of the dealer and major participant 
definitions (as well as to assess future actions related to the 
extended compliance period in connection to the de minimis exception to 
the security-based swap dealer definition).
d. Analysis of the Effect of Specific Rules on Programmatic Costs and 
Benefits
    We have sought to establish definitions that capture the types of 
entities whose security-based swap activity or whose security-based 
swap positions warrant regulation under Title VII as dealers or major 
participants, and to exclude the types of entities whose activity or 
positions may not warrant such regulation. The relationship between a 
given rule and the scope of the persons that ultimately will fall 
within the dealer or major participant definitions--along with the 
related costs and benefits--manifests itself in different ways 
depending on the rule at issue. Some of these rules may be expected to 
have a close link to the overall programmatic costs and benefits 
associated with dealer and major participant regulation because they 
play a significant role in determining the overall scope of the 
definitions (for example, because they are relevant to the status of 
relatively more entities). Other rules may be expected to affect the 
status of relatively fewer entities and thus have a smaller effect on 
those programmatic costs and benefits.
    We anticipate that the report that the SEC staff will make to the 
Commission following the full implementation of Title VII with regard 
to these definitions will help us more fully evaluate the programmatic 
impact of all of these rules, both in terms of the number of potential 
major participants and dealers that would result from the definition we 
are adopting as well as potential alternatives, and in terms of the 
associated programmatic costs and benefits.
i. Core Rules That Implicate Programmatic Costs and Benefits
    The core definitional terms with respect to establishing the scope 
of the dealer and major participant definitions are those relating to: 
(i) the core dealer definition, (ii) the dealer de minimis exception, 
and (iii) the definitions of ``substantial position'' and ``substantial 
counterparty exposure'' within the major participant definition.

A. Dealer Definition

    Exchange Act rule 3a71-1 defines ``security-based swap dealer'' and 
thus plays a central role in determining the scope of the Title VII 
regulatory regime going forward. Based on the available data regarding 
activity in the market for single-name credit default swaps, including 
the application of various criteria that may be indicative of dealing 
activity in that market, and taking into account the availability of 
the de minimis exception to the dealer definition, we estimate that 50 
or fewer entities ultimately may have to register with the SEC as 
security-based swap dealers.\1457\ This is consistent with the estimate 
that accompanied the proposal.\1458\
---------------------------------------------------------------------------

    \1457\ This estimate--which potentially overstates the number of 
potential dealers--is consistent with the data considered in the CDS 
Data Analysis. That analysis implied a range of alternative 
estimates--from 16 possible dealers to 93 possible dealers--based on 
currently available data and reflecting a $3 billion de minimis 
level. Compare CDS Data Analysis at table 2a (identifying 16 
potential dealers above the $3 billion level based on the criterion 
of having 20 or more unique counterparties) with CDS Data Analysis 
at table 2c (identifying 93 potential dealers above that level based 
on the criterion of having 10 or more unique counterparties). 
However, most of the criteria applied by the CDS Data Analysis as 
potentially indicative of dealer activity suggested estimates of 
fewer than 50 possible dealers after accounting for the $3 billion 
de minimis level. See id. at table 2b (identifying 32 possible 
dealers based on the criterion of having 15 or more unique 
counterparties); id. at table 3 (identifying 16, 19, or 25 possible 
dealers based on the criterion of having a certain number of 
counterparties not identified as dealers by ISDA); id. at table 4 
(identifying 32 possible dealers based on the criterion of having a 
``flat notional book''); id. at table 5 (identifying 33 possible 
dealers based on the criterion of having ``flat transaction 
volume''); id. at table 7 (identifying 40 possible dealers that meet 
two or more of the other criteria cited in the analysis); id. at 
table 8 (identifying 27 possible dealers that meet three or more of 
the other criteria cited in the analysis). Only two criteria 
suggested estimates in excess of 50 possible dealers above the $3 
billion level. See id. at table 2c (identifying 93 possible dealers 
based on the criterion of having 10 or more unique counterparties, 
which may also be explained by the fact that non-dealers may 
maintain trading relations with multiple dealers); id. at table 6 
(identifying 52 possible dealers based on the criterion of posting 
initial margin with low frequency, which may also be explained by 
underreporting of margin due to the fact that such reporting was 
voluntary with respect to the data underlying the CDS Data 
Analysis).
    While recognizing that alternative criteria for identifying 
possible dealing activity produced varied results, we believe that 
the results largely are consistent with the estimate of 50 or fewer 
security-based swap dealer registrants. We further believe that it 
is appropriate to place particular weight on one criterion that 
identified possible dealing activity based on whether an entity 
engaged in security-based swap transactions with three or more 
counterparties that themselves were not identified as dealers by 
ISDA. That analysis identified 28 entities possibly engaged in 
dealing activity (with 25 of those with trailing notional 
transactions that exceed the $3 billion de minimis threshold we are 
adopting). See CDS Data Analysis at table 3c. We believe that this 
metric serves as a useful proxy for the application of the dealer-
trader distinction, given that persons with the business model of 
seeking to profit by providing liquidity in general may reasonably 
be expected to engage in transactions with persons who are not 
themselves recognized as dealers.
    In estimating that 50 or fewer entities ultimately may have to 
register as dealers, we are seeking to take a conservative approach 
that recognizes both the limitations on the conclusions that may be 
drawn from available data and the potential for changes in the 
security-based swap market. We recognize that the criteria applied 
in the CDS Data Analysis are imperfect in that they do not directly 
apply the dealer-trader distinction, and that some alternative 
criteria may prove to be superior predictors of actual dealing 
activity. We also recognize that the estimate may overstate the 
number of possible registered dealers insofar as not all of the 
activity of persons identified as potential dealers based on the CDS 
Data Analysis necessarily reflects dealing activity, meaning that in 
practice a greater number of entities may be able to take advantage 
of the de minimis exception, and fewer entities would have to 
register as dealers, than estimates implied by that analysis may 
suggest. This estimate of 50 potential dealers further seeks to 
reflect the potential for growth in the size of the security-based 
swap market, as well as growth in the number of registered dealers 
as a result of competition promoted by the policies contemplated by 
the Dodd-Frank Act, and the possibility that some business groups 
that are identified as a single entity for purposes of this data 
ultimately may register multiple legal entities as security-based 
swap dealers.
    \1458\ The proposal estimated approximately 50 entities would be 
required to register as security-based swap dealers, based on 
discussions with industry. See Proposing Release, 75 FR at 80209, 
n.188. Commenters did not contradict this estimate. To the extent 
that the actual number of registrants differs from this estimate, it 
is reasonable to assume that the actual number will be lower than 
the estimate in the proposal because the de minimis level 
established by the final rules for credit default swaps that are 
security-based swaps--as described above, by far the overwhelming 
majority of the security-based swap market--is higher than the level 
that was proposed (i.e., $3 billion vs. $100 million).

---------------------------------------------------------------------------

[[Page 30726]]

    Alternative approaches to identifying dealer activity, including 
those suggested by commenters, may have led to a lower or higher number 
of potential dealers out of the over 1,000 total participants in the 
security-based swap market. For example, commenters variously 
suggested, among other approaches, that the dealer definition should be 
interpreted to be coextensive with the concept of market making 
activity, that dealer status should be limited to persons available to 
take either side of the market at any time, or that dealer status 
should be limited to transactions arising from a ``customer'' 
relationship.\1459\ Following those alternative approaches potentially 
would reduce the ultimate number of persons required to register as 
dealers.
---------------------------------------------------------------------------

    \1459\ See part II.A.2, supra.
---------------------------------------------------------------------------

    In adopting the final rules and providing interpretive guidance 
that adapts our traditional dealer-trader analysis for the security-
based swap market, we have sought to capture those entities whose 
security-based swap activity is warranted due to the nature of their 
interactions with counterparties, or is warranted to promote market 
stability and transparency. In this respect, we have sought to limit 
the costs imposed by regulation under Title VII to those entities whose 
regulation would serve the transparency, customer protection, and 
market stability purposes of the statute while not imposing those costs 
on entities whose regulation may not produce sufficient benefit in 
terms of those purposes. The core dealer analysis that we have adopted 
here focuses on activity that characterizes dealers, as the statutory 
text requires, and does so while drawing on a well-established approach 
used in an analogous securities dealer context by a wide range of 
financial intermediaries.\1460\
---------------------------------------------------------------------------

    \1460\ See part II.A.5, supra (discussing the application of the 
dealer-trader distinction to the security-based swap market).
---------------------------------------------------------------------------

B. De Minimis Exception to the Dealer Definition

    Exchange Act rule 3a71-2 implements the de minimis exception to the 
dealer definition. This rule will directly affect the scope of the 
dealer definition by excepting certain entities that otherwise would be 
encompassed by the dealer definition but whose security-based swap 
dealing activities fall below a specified notional threshold. As above, 
we believe that the application of the final rule implementing the de 
minimis exception, in combination with application of the dealer-trader 
distinction, reasonably may be expected to result in 50 or fewer 
entities ultimately registering with the SEC as security-based swap 
dealers.\1461\
---------------------------------------------------------------------------

    \1461\ See note 1457, supra.
---------------------------------------------------------------------------

    As discussed above, the final rule implementing the de minimis 
exception reflects our attempt to focus the application of dealer 
regulation onto those entities for which that regulation would be 
appropriate, taking into account the comparative costs and benefits of 
dealer regulation, and the high degree of concentration of dealing 
activity in the security-based swap market.\1462\ The final rule 
particularly provides that a dealer may take advantage of the exception 
if the notional amount of its dealing activity involving security-based 
swaps that are credit default swaps over the trailing 12 months is no 
more than $3 billion. For other types of swaps, a dealer may take 
advantage of the exception if the notional amount of its dealing 
activity is no more than $150 million. The threshold for dealing 
activity with counterparties that are ``special entities,'' regardless 
of the type of security-based swap, is $25 million. The final rule also 
eliminates proposed tests based on the number of an entity's dealing 
counterparties and on the number of its dealing security-based swaps. 
This approach also mitigates concerns raised by some commenters about 
the exception being overly narrow.\1463\
---------------------------------------------------------------------------

    \1462\ See parts II.D, supra. Regardless of the criterion used 
for identifying entities engaged in dealing activity, analysis of 
2011 transaction data for single-name credit default swaps indicates 
that possible dealers with $3 billion or more in trailing notional 
activity account for over 98 percent of all the trailing notional 
activity by such entities. See CDS Data Analysis at 8-17.
    \1463\ See part II.D.2, supra. Conversely, some commenters 
suggested lower thresholds than those provided in the final rule, an 
approach that reasonably would be expected to lead more entities to 
have to register as security-based swap dealers. We did not adopt 
these lower thresholds because we determined that, given our 
understanding of the current structure of the market, it was 
unnecessary to do so to achieve the purposes of Title VII. Under any 
of the metrics used in the CDS Data Analysis (with the exception of 
the metrics relying on the posting of margin, which are, for reasons 
provided in the analysis, particularly unreliable), for example, 
retaining the proposed de minimis threshold of $100 million would 
have captured at most an additional 0.75 percent of transaction 
activity engaged in by entities captured by the respective analysis. 
See CDS Data Analysis at 8-17.
    In adopting this rule we also considered alternative approaches 
and thresholds suggested by some commenters that potentially may 
lead fewer entities to have to register as security-based swap 
dealers. For example, while some commenters supported the use of an 
exposure-based threshold rather than a notional threshold, we 
declined to adopt this approach because the use of an exposure 
threshold could permit a virtually unlimited amount of dealing 
activity within the de minimis exception so long as exposures are 
collateralized (or offset, as generally occurs with dealing 
activity), a result inconsistent with the purposes of Title VII.
---------------------------------------------------------------------------

    We have concluded that a $3 billion threshold for security-based 
swaps that are credit default swaps would appropriately apply dealer 
regulatory requirements to entities that comprise the vast majority of 
domestic dealing activities in these products, while not imposing the 
fixed costs of dealer regulation upon those entities responsible for 
only a small portion of total dealing activity, and avoiding the threat 
of leaving an excessive amount of dealing activity outside the ambit of 
dealer regulation.\1464\ We believe that this approach strikes a 
balance that appropriately maximizes the benefits of dealer regulation 
while avoiding the application of the fixed costs of dealer regulation 
onto those entities for which dealer regulation may not significantly 
contribute to those benefits and avoiding the threat of allowing an 
excessive volume of unregulated dealing activity.\1465\
---------------------------------------------------------------------------

    \1464\ As noted above, a sufficiently high de minimis threshold 
could allow a significant amount of unregulated security-based swap 
dealing activity to develop among entities whose dealing activity 
does not exceed the de minimis threshold. See part II.D.5.b, supra.
    \1465\ As noted above, an extended compliance period will be 
available to entities that engage in $8 billion or less in annual 
notional dealing activity in security-based swaps that are credit 
default swaps (or $400 million in dealing activity in other types of 
security-based swaps), to help facilitate the orderly implementation 
of Title VII and to afford the SEC additional time to study the 
security-based swap market as it evolves in the new regulatory 
framework. See part II.D.5.c.ii, supra.
---------------------------------------------------------------------------

    Similar considerations influenced our determination that a $3 
billion de minimis threshold would be inappropriate for persons engaged 
in dealing activity involving other types of security-based swaps, 
given the comparatively smaller size of that market.\1466\ We instead 
have set the threshold at a level that reflects the relative volume in 
the security-based swap market of security-based swaps that are not 
credit default swaps.\1467\
---------------------------------------------------------------------------

    \1466\ See part II.D.5.d, supra.
    \1467\ See id. (discussing rationale for use of $150 million 
threshold and $400 million phase-in level in connection with those 
types of security-based swaps).
---------------------------------------------------------------------------

    The final rule implementing the de minimis exception also sets 
forth a lower notional threshold for dealing activities involving 
``special entities,'' consistent with the special protections that 
Title VII affords those entities. While we recognize that this lower 
threshold may deter certain entities that are not registered as dealers 
from

[[Page 30727]]

entering into security-based swap transactions with special entities, 
and hence may have the effect of reducing the availability of security-
based swaps to those entities or increasing their costs,\1468\ we 
believe that this lower threshold is appropriate to avoid undermining 
those separate Title VII protections.\1469\
---------------------------------------------------------------------------

    \1468\ We expect any such effect will likely be minimal. An 
analysis of 2011 transaction data regarding single-name credit 
default swap transactions involving special entities shows that 16 
counterparties account for all transactions with special entities. 
Although all but one of these entities engaged in more than $25 
million in transactions with such entities in 2011, all of these 
entities engaged in total single-name credit default swap activity 
well in excess of the $3 billion de minimis threshold that applies 
to dealers generally. See CDS Data Analysis, Table 9 and note 8. 
Consequently, it is possible that all 16 entities would have been 
required to register as dealers under the standard de minimis 
threshold of $3 billion, regardless of the lower de minimis 
threshold for special entities.
    \1469\ See note 179, supra (discussing business conduct 
requirements applicable to dealing activities involving special 
entities).
---------------------------------------------------------------------------

    The final rule implementing the de minimis exception further 
provides that security-based swap activities of affiliates under common 
control with an entity should be considered when determining whether 
the entity can avail itself of the de minimis exception. That is 
intended to avoid evasion of the dealer registration requirement; thus, 
while a contrary approach might be expected to reduce the number of 
registered dealers, such an approach would not be consistent with the 
purposes of Title VII.\1470\
---------------------------------------------------------------------------

    \1470\ See note 437, supra (discussing use of common control 
standard in this anti-evasion context, rather than the majority 
ownership standard used in connection with the inter-affiliate 
exclusions from the dealer and major participant definitions).
---------------------------------------------------------------------------

C. ``Substantial Position'' and ``Substantial Counterparty Exposure'' 
Definitions
    Exchange Act rules 3a67-3 and 3a67-5 define ``substantial 
position'' and ``substantial counterparty exposure,'' which constitute 
key terms within the major participant definition. The rules defining 
these thresholds--including the use of current exposure and potential 
future exposure tests, the specific features of those tests, and the 
thresholds associated with those tests\1471\--can be expected to 
directly influence the overall number of persons who may fall with the 
major participant definition.
---------------------------------------------------------------------------

    \1471\ As detailed above in part IV.B.3, an entity will 
generally be required to register as a major security-based swap 
participant if its current security-based swap exposure exceeds $1 
billion in a single major category of security-based swaps or to a 
single counterparty or if its current security-based swap exposure 
plus its potential future exposure exceeds $2 billion in a single 
major category of security-based swaps or to a single counterparty. 
The current exposure test looks to an entity's current 
uncollateralized exposure posed by its security-based swap positions 
in a given category; the potential future exposure test looks to the 
effective notional exposure represented by an entity's security-
based swap positions, with certain adjustments for cleared or 
margined positions and netting.
---------------------------------------------------------------------------

    These tests seek to capture persons whose security-based swap 
positions pose sufficient risk to counterparties and the markets 
generally that regulation as a major participant is warranted.\1472\ 
Based on available data regarding the single-name credit default swap 
market--which we believe will comprise the majority of security-based 
swaps--we estimate that the number of major security-based swap 
participants likely will be fewer than five and, in actuality, may be 
zero. As discussed above, an entity that posts daily variation margin 
in connection with those positions generally would need to have 
security-based swap positions approaching $100 billion to reach the 
levels of potential future exposure required to meet the substantial 
position threshold, even before accounting for the impact of netting, 
while an entity that clears its security-based swaps generally would 
need to have positions approaching $200 billion.\1473\ The available 
data shows that as of December 2011 a single entity had aggregate gross 
notional positions (i.e., aggregate buy and sell notional positions) in 
single-name credit default swaps exceeding $100 billion, and three 
others had aggregate gross notional positions between $50 and $100 
billion.\1474\ However, as discussed above, the purchase of credit 
protection is weighed less heavily than the sale of credit protection 
for purposes of the analysis,\1475\ meaning that an entity's positions 
reflecting single-name credit protection sold to its counterparties may 
be expected to be more of a key determinant of the entity's potential 
future exposure level under the rules we are adopting. The data shows 
that no entities have more than $100 billion in positions arising from 
selling single-name credit protection and that only two have between 
$50 and $100 billion in positions arising from such transactions.\1476\
---------------------------------------------------------------------------

    \1472\ See parts IV.C.3 and IV.E.3, supra.
    \1473\ See note 914, supra. Although it is possible that a 
notional position of $20 billion could cause an entity to be a major 
participant in the absence of central clearing or mark-to-market 
margining (and assuming that there is no risk reduction associated 
with netting or with certain positions that pose lower credit risk), 
we expect that those entities (such as hedge funds) that may be 
expected to have large positions would, as a matter of course, post 
mark-to-market margin in connection with positions that are not 
cleared. See Proposing Release, 75 FR 80207-08 n.181 (stating our 
understanding that banks, securities firms, and hedge funds 
typically collateralize most or all of their mark-to-market exposure 
to U.S. banks as a matter of practice). Accordingly, we believe that 
$100 billion provides a reasonable focus for the analysis.
    \1474\ See CDS Data Analysis at table 10.
    \1475\ See part IV.B.3.c.iii, supra.
    \1476\ See id. Although this data describes aggregate notional 
positions only for single-name credit default swaps and does not 
include analysis of positions in other types of security-based 
swaps, as noted above, credit default swaps appear to account for 
approximately 95 percent of the security-based swap market. That 
fact reduces the likelihood that positions involving security-based 
swaps that are not credit-related would cause a person to be a major 
security-based swap participant, or lead any entity to find it 
necessary to perform the major participant analysis in connection 
with those instruments.
---------------------------------------------------------------------------

    While a ``substantial position'' or ``substantial counterparty 
exposure'' also can be established by a sufficiently high amount of 
current uncollateralized exposure, the available data does not provide 
information about individual entities' uncollateralized exposure in 
connection with security-based swap positions. We note, however, our 
understanding that certain of the financial entities that may have 
large security-based swap positions, such as hedge funds, tend to 
collateralize their security-based swap exposures as a matter of 
course, which would reduce the potential impact of this aspect of the 
test.
    As noted above, commenters suggested both higher and lower 
thresholds, as well as different discounts or risk multipliers for 
certain positions.\1477\ If the final rules defining ``substantial 
position'' and ``substantial counterparty exposure'' incorporated 
higher major participant thresholds, potentially fewer entities may be 
major participants. Conversely, lower thresholds may have led to a 
higher number of major participants, with the upper bound being 
represented by the over 1,000 non-dealer entities that participate in 
the security-based swap market.\1478\
---------------------------------------------------------------------------

    \1477\ See part IV.B.2, supra.
    \1478\ See CDS Analysis at tables 10 through 12.
---------------------------------------------------------------------------

    By potentially capturing more or fewer major participants, such 
alternatives would have correspondingly increased or decreased the 
programmatic costs and benefits associated with Title VII regulation of 
major participants. As discussed above, however, the tests incorporated 
into the final rules, and the thresholds associated with those tests, 
are in our view tailored to capture only those entities that pose the 
risks that major participant regulation in Title VII seeks to address; 
in other words, these thresholds and related calculations

[[Page 30728]]

incorporate the risk criteria embedded in the major participant 
definition.\1479\ For example, we have declined to exclude centrally 
cleared positions from the potential future exposure test, instead 
permitting entities to discount those positions for purposes of the 
analysis, because central clearing cannot reasonably be expected to 
fully eliminate all counterparty risk that may affect the broader 
markets. Based on this fact, we conclude that it would be 
inappropriate, given the purposes of Title VII, to exclude an entity 
from the major participant definition simply because all of its 
security-based swap positions arise from cleared transactions.\1480\ 
Similar considerations informed our approach to other aspects of the 
substantial position and substantial counterparty position tests, as 
discussed more fully above.\1481\
---------------------------------------------------------------------------

    \1479\ See part IV.B.3, supra (discussing the decisions made 
regarding the substantial position definition and the reasoning 
behind the adopted approach). For example, we have concluded that 
the proposed thresholds are set prudently in a manner that takes 
into account the financial system's ability to absorb losses of a 
particular size, the need for major participant regulation not to 
encompass entities only after they pose significant risks to the 
market, and the need to account for the possibility that multiple 
market participants may fail close in time. In addition, as 
discussed above, we believe that this threshold is tailored to 
address the types of events associated with the failure of AIG FP. 
See part IV.B.3.d, supra.
    \1480\ Central clearing helps to mitigate counterparty credit 
risk by improving risk management and, among other things, 
mutualizing the risk of counterparty failure. If multiple members of 
a central counterparty fail beyond the level to which such risk is 
managed, however, the central counterparty would also be at risk of 
failure. Cf. Basel Committee on Banking Supervision, Consultative 
Document, ``Capitalisation of bank exposures to central 
counterparties,'' Nov. 25, 2011 (available at: https://www.bis.org/publ/bcbs206.pdf) (proposing that the capital charge for trade 
exposures to a qualifying central counterparty should carry a low 
risk weight, reflecting the relatively low risk of default of the 
qualifying central counterparty).
    \1481\ See part IV.B.3, supra.
---------------------------------------------------------------------------

ii. Rules That May Be Expected To Have a Lesser Effect on Programmatic 
Costs and Benefits
    Several of the final rules may be expected to have relatively 
smaller effects on the scope of the major participant and dealer 
definitions because they are likely to affect relatively fewer 
entities. By extension, they will also have a smaller effect on the 
programmatic costs and benefits arising from these definitions.

A. Limited Purpose Dealer and Major Participant Designations

    Exchange Act rules 3a67-1 and 3a71-1 retain the presumption that a 
person that is encompassed within the major participant or dealer 
definitions will be deemed to be a dealer or major participant with 
respect to all of its security-based swap activities or positions, 
unless the SEC exercises its authority to limit the person's 
designation as a dealer to specified categories of swaps or security-
based swaps, or to specified activities. This presumption may affect 
programmatic costs in at least two ways.
    First, by not providing for registration as a limited purpose major 
participant or dealer as a matter of course, the final rules may be 
expected to increase the costs associated with the registration of 
those entities that seek designation as dealers or major participants 
or dealers. Aside from the costs of registration described in the SEC's 
proposal related to the registration of dealers and major 
participants,\1482\ we expect that entities seeking to register as a 
limited purpose major participant or dealer would incur some additional 
marginal costs associated with making applications for limited 
designation.\1483\
---------------------------------------------------------------------------

    \1482\ See ``Registration of Security-Based Swap Dealers and 
Major Security-Based Swap Participants,'' Exchange Act Rel. No. 34-
65543 (``Registration Proposing Release''), 76 FR 65784, 65814-65818 
(describing various costs associated with registration, including 
$11,800 per entity to complete and file form SBSE and between 
approximately $94,000 and $610,000 per entity to certify to the 
capabilities of the entity seeking registration).
    \1483\ These costs may include the costs of identifying how the 
entity would be able, as a limited designation entity, to comply 
with the various entity-level requirements of Title VII.
---------------------------------------------------------------------------

    In addition, the presumption against limited purpose designation 
may be expected to reduce the number of limited purpose major 
participants and dealers below the number that would otherwise register 
as limited purpose entities absent the presumption. In concept, broader 
availability of limited purpose registration of major participants or 
dealers may be expected to reduce the programmatic costs associated 
with regulation under Title VII, without necessarily reducing certain 
programmatic benefits if appropriately crafted. In particular, any 
programmatic effects of an appropriately scoped limited designation 
likely would affect only the transaction-level requirements applicable 
to dealers and major participants (e.g., certain business conduct 
standards and requirements related to trading records, documentation 
and confirmations), potentially reducing costs and benefits that would 
otherwise arise from such requirements with respect to transactions 
that occur outside the limited designation. At the same time, certain 
of the entity-level regulatory requirements applicable to dealers and 
major participants as a whole (such as requirements related to capital) 
would continue to apply in the context of limited designation, ensuring 
that a limited purpose designation would not undermine the counterparty 
protection and systemic risk concerns of Title VII.
    Notwithstanding these effects, we believe that the presumption 
against limited purpose designations is appropriate. This conclusion 
reflects the statutory language, the difficulty of separating a 
dealer's activities from its non-dealing activities (or a major 
participant's security-based swap positions taken under its limited 
purpose designation from other of its security-based swap positions) 
for compliance purposes, and the challenges of applying dealer or major 
participant regulatory requirements to only a portion of the entity's 
security-based swap business. Instead, we will consider limited purpose 
applications on an individual basis through analysis of the unique 
circumstances of each applicant.\1484\
---------------------------------------------------------------------------

    \1484\ We will consider applications for limited purpose 
designation in the context of the registration requirements for 
major participants and dealers. In that context, we could consider 
applications on a case-by-case basis, pursuant to requests by 
specific major participants or dealers. This could help to ensure 
that any person that is designated as a limited purpose major 
participant or dealer is able to comply with the regulatory 
requirements applicable to major participants or dealers. 
Accordingly, we intend to further consider issues regarding limited 
designations, including associated costs, in a release relating to 
the specific registration requirements (for example, the form used 
for registration) for major participants and dealers. Furthermore, 
as noted above, the SEC is directing the staff to prepare a report 
on all aspects of the dealer and major participant definitions. Upon 
completion of this report, the SEC may further assess whether 
changes to the presumption against limited designation are warranted 
in light of the then-current state of the security-based swap market 
and the types of business in which security-based swap dealers are 
engaged.
---------------------------------------------------------------------------

    We note that the available data does not indicate how many, or 
which, entities may have business models that conceivably could make 
limited purposed designations appropriate (e.g., large positions in one 
major category of security-based swaps accompanied by minor positions 
in the other).\1485\
---------------------------------------------------------------------------

    \1485\ The study that will be conducted in connection with the 
dealer and major participant definitions may also provide relevant 
information regarding limited designations of dealers and major 
participants.
---------------------------------------------------------------------------

B. Inter-Affiliate Exclusions From Dealer and Major Participant 
Definitions

    Exchange Act rules 3a67-3 and 3a71-1 respectively exclude inter-
affiliate security-based swaps from the calculation of substantial 
position and substantial counterparty position thresholds under the 
major participant

[[Page 30729]]

definition, and from the de minimis calculation under the dealer 
definition. The inter-affiliate exclusion from the major participant 
and dealer definitions has the potential to affect the scope of these 
definitions for those entities that engage in inter-affiliate 
transactions by leading some entities not to meet the major participant 
or dealer de minimis thresholds when they otherwise would have met 
those thresholds (or by allowing certain centralized hedging facilities 
to look only at their market-facing activities in conducting the 
dealer-trader analysis). The exclusion or inclusion of certain inter-
affiliate transactions thus may have some impact on the programmatic 
costs and benefits associated with dealer and major participant 
regulation.
    We are adopting a majority-ownership standard for determining 
whether transactions between affiliates can be excluded from these 
threshold calculations because such transactions between entities whose 
economic interests are aligned to a degree represented by majority 
ownership do not appear to pose the kinds of counterparty and market 
risks that Title VII addresses.\1486\ Some commenters suggested lower 
levels of control (such as common control) that may be expected to lead 
to fewer entities being registered as dealers or major participants, 
with associated impacts on programmatic costs and benefits. In our 
view, however, such alternative standards would not be consistent with 
the scope of the interactions to which dealer regulation is intended to 
apply, or with an alignment of economic interests consistent with an 
exclusion from the major participant definitions.
---------------------------------------------------------------------------

    \1486\ See parts II.C.2.b and IV.G.2, supra (discussing nature 
of inter-affiliate security-based swap transactions).
---------------------------------------------------------------------------

    We also note that the data upon which the staff assessment of 
credit default swap transactions and positions is based excludes 
certain inter-affiliate credit default swap transactions. As a result, 
estimates of market concentration and the distribution of dealing 
activity or credit default swap positions derived from this data should 
reflect to some extent the effect of the inter-affiliate exclusions we 
are adopting in this rule.

C. Commercial Risk Hedging Exclusion

    Exchange Act rule 3a67-4 defines ``hedging or mitigating commercial 
risk'' as that term is used in the major participant definition. The 
scope of this definition has the potential to determine whether certain 
market participants will be major participants by virtue of the first 
statutory major participant test, and will therefore affect the scope 
of the programmatic costs and benefits associated with major 
participant regulation. In application, this effect may be limited in 
light of the fact that we estimate that, as discussed above, only five 
or fewer entities--perhaps as few as zero--may have to register as 
major security-based swap participants.
    The final rule adopts an ``economically appropriate'' standard for 
determining whether a security-based swap position hedges or mitigates 
commercial risk, and sets forth exclusions for security-based swap 
positions that have a speculative or trading purpose. As we discuss 
above, we carefully considered the alternative approaches suggested by 
some commenters, including the suggestion that the definition should 
encompass positions that hedge speculative or trading positions and the 
suggestion that the definition should incorporate a ``congruence'' 
standard. We concluded, however, that these approaches are inconsistent 
with the focus of the statutory text, which is on ``commercial risk.'' 
\1487\ We also concluded that broadening the exclusion as some 
commenters suggested could largely exclude security-based swap 
positions from the first major participant test. This would produce a 
result that we believe to be contrary to the purposes of that part of 
the statutory definition, which envisions that entities might be 
required to register as major participants by virtue of their security-
based swap positions.
---------------------------------------------------------------------------

    \1487\ See parts IV.C.5.a and IV.C.5.b, supra (discussing 
rationale for excluding hedges of speculative and trading positions 
from the definition).
---------------------------------------------------------------------------

D. ``Financial Entity'' Definition

    Exchange Act rule 3a67-6 defines ``financial entity'' for purposes 
of the third test of the major participant definition, which applies to 
certain highly leveraged non-bank financial entities and does not 
prevent them from excluding commercial risk hedging positions when 
conducting the substantial position analysis (in contrast to the first 
test within the major participant definition, which permits exclusion 
of those hedging positions).
    Although the scope of the financial entity definition has the 
potential to affect the number of persons who are captured by the third 
test of the statutory major participant definition (and thus, by 
extension, the programmatic costs and benefits associated with major 
participant regulation), we believe that as a practical matter such an 
effect would be minimal. This is based on our view that persons that 
have security-based swap positions large enough and risky enough to 
potentially lead to major participant status to be financial in nature 
and thus would likely fall within any reasonable interpretation of the 
term ``financial entity,'' \1488\ thus making such entities potentially 
subject to the third major participant test (to the extent that such 
entities are subject to bank capital requirements).
---------------------------------------------------------------------------

    \1488\ See Federal Reserve Bank of New York staff reports, ``An 
Analysis of CDS Transactions: Implications for Public Reporting'' 
(2011) at table 3 (``NY Fed analysis'') (available at https://www.newyorkfed.org/research/staff_reports/sr517.pdf) (discussing 
credit default swap trade frequency by market type, and indicating 
that most activity is done by entities of a financial nature).
---------------------------------------------------------------------------

E. ``Highly Leveraged'' Definition

    Exchange Act rule 3a67-7 defines ``highly leveraged'' for purposes 
of the third prong of the major participant definition, which applies 
to certain non-banks as described above. In adopting the final rule, we 
have considered alternative approaches suggested by commenters. For 
example, a number of commenters favored the use of a 15 to 1 leverage 
ratio, which may be expected to reduce the number of persons who are 
deemed to be ``highly leveraged'' and thus subject to the third test. 
Conversely, some commenters favored a ratio that is lower than the one 
found in the final rule, which may be expected to increase the number 
of entities deemed to be highly leveraged.\1489\
---------------------------------------------------------------------------

    \1489\ See part IV.F.2.b, supra.
---------------------------------------------------------------------------

    The final rule defines ``highly leveraged'' as a leverage ratio of 
12 to 1 or higher. In our view, this ratio reasonably sets forth 
objective criteria for identifying entities that pose a heightened risk 
of being unable to meet their obligations through their use of 
leverage. This 12 to 1 ratio reflects a number of factors, including 
the use of a 12 to 1 ratio in connection with certain broker-dealer 
capital rules, as well as reasons to distinguish the use of a 15 to 1 
ratio in Title I of the Dodd-Frank Act.\1490\
---------------------------------------------------------------------------

    \1490\ See part IV.F.3.b, supra (discussing the rationale for 
using a 12 to 1 ratio for purposes of defining the term ``highly 
leveraged'' in the context of the major participant definitions).
---------------------------------------------------------------------------

    As with the financial entity definition in rule 3a67-6, as a 
practical matter we do not believe that expanding or narrowing the 
leverage ratio within any reasonable definition of ``highly leveraged'' 
for purposes of the third major participant test will have a 
significant impact on the programmatic costs and benefits of major 
participant regulation. In part, this is because we believe that in 
many circumstances the

[[Page 30730]]

sales of credit protection cannot reasonably be interpreted to 
constitute the hedging of commercial risk,\1491\ meaning that such 
positions in any event may be expected to be considered as part of the 
analysis of the first major participant test. The programmatic impact 
of this definition further is mitigated by the fact that we believe 
that there will be relatively few entities whose security-based swap 
positions would cause them to be major participants.
---------------------------------------------------------------------------

    \1491\ See note 1019, supra.
---------------------------------------------------------------------------

F. ``Major'' Categories of Security-Based Swaps

    Exchange Act rule 3a67-2 defines ``major'' categories of security-
based swaps, a term that plays a role in the two statutory major 
participant tests that turn upon the presence of a substantial position 
in a ``major'' category of security-based swaps. The final rule retains 
the proposal's division of those instruments into debt-based and other 
categories. As discussed above, these major categories are broadly 
consistent with market usage and statistics, and we believe that it is 
reasonable for entities undertaking this analysis to use these 
categories in calculating whether they have a substantial 
position.\1492\
---------------------------------------------------------------------------

    \1492\ See part IV.A.3 (discussing rationale for final ``major'' 
categories).
---------------------------------------------------------------------------

    In theory, it is possible that the categorization of security-based 
swaps for these purposes could result in a particular entity exceeding 
the applicable thresholds in a major category, causing it to be a major 
security-based swap participant and triggering the Title VII 
registration and regulatory requirements.\1493\ The relationship 
between the major security-based swap categories as we have defined 
them in this rule and the programmatic costs and benefits associated 
with major participant regulation will depend largely on how the 
security-based swap positions of entities with security-based swap 
exposures approaching these thresholds are distributed between these 
categories.
---------------------------------------------------------------------------

    \1493\ In other words, the dividing line that the rule sets 
between the major category of debt-based security-based swaps and 
the major category for other security-based swaps (or other dividing 
lines based on different or additional major categories) could 
determine whether an entity's security-based swap positions exceed 
or fall below the major participant thresholds for a particular 
major category, and hence whether the entity will be deemed to be a 
major participant.
---------------------------------------------------------------------------

    The available data suggests that the debt-based major category 
(i.e., credit default swaps) accounts for the vast majority of 
security-based swap positions.\1494\ Absent an approach that breaks 
single-name credit default swaps in to multiple ``major'' categories--
which itself would not appear to be justified based on current 
information--this suggests that this categorization as a practical 
matter will not have a significant effect on the programmatic costs and 
benefits of major participant regulation.\1495\
---------------------------------------------------------------------------

    \1494\ See note 476, supra.
    \1495\ For example, an alternative approach might divide narrow-
based index CDS and single-name CDS into separate major categories. 
We believe, however, that single-name CDS account for the large 
majority of debt-based security-based swaps, see id., suggesting 
that most entities' status as major participants would turn on their 
single-name CDS exposures under any reasonable approach to defining 
major categories and that the subtraction of narrow-based index CDS 
exposures in the calculation of substantial exposure would, given 
their relatively small market volume, have little effect on whether 
most entities meet the substantial exposure threshold. Thus, we 
believe that the decision to classify all debt-based security-based 
swaps in a single category will likely have minimal effect, if any, 
on any entity's status as a major participant, as compared to 
dividing debt-based security-based swaps into two categories.
---------------------------------------------------------------------------

G. Registration Period

    Exchange Act rules 3a67-8 and 3a71-2 establish periods for 
registration as a dealer and major participant, as well as periods for 
revaluating or terminating one's status as a registered entity. As 
such, these provisions may affect the length of time that particular 
entities may be deemed to be major participants or dealers, and hence 
subject to the requirements applicable to those entities. However, any 
effect of delaying or accelerating dealer or major participant status 
on the programmatic costs and benefits associated with major 
participant or dealer status likely will be negligible compared to the 
overall programmatic costs and benefits associated with major 
participant or dealer regulation.

H. Calculation Safe Harbor

    Exchange Act rule 3a67-9 establishes a calculation safe harbor for 
the major participant threshold tests. We do not believe that this safe 
harbor changes the scope of the major participant definition, as it 
should not exclude from the major participant definition any entity 
that would otherwise fall within the definition if that entity 
performed the substantial position calculations.\1496\ Accordingly, we 
do not believe that the safe harbor would have a material effect on the 
programmatic costs and benefits associated with major participant 
regulation.
---------------------------------------------------------------------------

    \1496\ See part IV.M.2, supra.
---------------------------------------------------------------------------

I. Interpretation Related to Guarantees

    In adopting these final rules, we also have finalized an 
interpretation regarding when a person will have security-based swap 
positions attributed to it by virtue of having guaranteed the positions 
of another party. In general, we have clarified that an entity's 
security-based swap positions need not be attributed to its parent 
unless the counterparty has recourse to the parent. We also clarified 
that, even in the presence of a guarantee, positions of certain 
regulated entities--including swap dealers, security-based swap 
dealers, major participants, broker-dealers, FCMs and certain entities 
subject to U.S. bank capital requirements--will not be attributed to 
the guarantor.\1497\
---------------------------------------------------------------------------

    \1497\ See part IV.H.3, supra.
---------------------------------------------------------------------------

    We recognize that attributing security-based swap positions to the 
entity guaranteeing another entity's security-based swap transactions 
may increase the number of major participants. At the same time, 
excluding certain regulated entities from the attribution requirement 
even in the presence of a guarantee may help prevent a guarantor, such 
as a holding company, from being deemed to be a major participant when 
the risks associated with those positions already are subject to 
regulation.
    We do not currently possess data relating to the existence of 
guarantees of the security-based swap positions of other parties and 
thus cannot reasonably estimate the number of additional entities that 
may be brought within the ambit of major participant regulation by 
virtue of this interpretation. However, we note that, to the extent 
that guarantees of another entity's security-based swap positions 
creates the level of exposure--and corresponding risk to the market and 
to counterparties--that warrants regulation under Title VII, it would 
appear inconsistent with the purposes of the statute not to subject 
that entity to major participant regulation.

J. Other Interpretations

    Finally, in this release we also have provided a number of 
additional interpretations and discussions in connection with the 
dealer and major participant definitions. These include, among others: 
the rejection of requests for entity-specific exclusions from the 
dealer and major participant definitions; \1498\ interpretations 
regarding the application of the ERISA exclusion from the first major

[[Page 30731]]

participant test,\1499\ and interpretations regarding the application 
of the major participant analysis to managed accounts.\1500\ In theory, 
each of these interpretations potentially has a programmatic 
impact.\1501\ For the reasons discussed above, we believe that these 
interpretations reflect reasonable choices.
---------------------------------------------------------------------------

    \1498\ See parts II.A.6 and IV.J, supra (stating that such 
exclusions from the dealer definition would have no basis in the 
statutory text and would be inconsistent with the activity focus of 
the dealer definition, and not providing entity exclusions from the 
major participant definition because entities that meet the 
thresholds of the rules may pose high risk to the U.S. financial 
system regardless of how they are organized).
    \1499\ See part IV.D, supra (interpreting the provision to 
exclude security-based swap positions entered into for the primary 
purpose of hedging or mitigating risks associated with operation of 
the plan, consistent with the statutory language that does not limit 
the hedging exclusion for ERISA plans to commercial risk; also 
clarifying that such positions may be eligible for exclusion even if 
they are held by a non-plan entity that holds plan assets).
    \1500\ See part IV.I, supra (clarifying that the position will 
be attributed to the client account rather than to the investment 
advisers or asset managers and that a beneficial owner should be 
required to treat the positions of such an account as its own only 
if the security-based swap counterparty has recourse to the 
beneficial owner).
    \1501\ For example, attributing security-based swap positions to 
investment advisors would have increased the likelihood of advisers 
being deemed to be major participants. Our interpretations do not 
take that approach, however, as we believe that it would be 
inconsistent with the focus of the statutory definition.
---------------------------------------------------------------------------

3. Analysis of Assessment Costs
    Certain persons engaged in security-based swap activity are likely 
to incur costs in connection with evaluating whether they fall within 
the dealer or major participant definitions.\1502\ As detailed below, 
we have considered these assessment costs in adopting definitional 
rules and interpretations that seek to capture entities whose security-
based swap activity or whose security-based swap positions warrant 
regulation under Title VII as dealers or major participants, while 
excluding entities whose activity or positions do not warrant such 
regulation.
---------------------------------------------------------------------------

    \1502\ These costs are distinguishable from the costs associated 
with registration as a dealer or major participant (which for 
purposes of this analysis we treat programmatic costs) and the other 
programmatic costs discussed above.
---------------------------------------------------------------------------

a. Assessment Costs Associated With the ``Security-Based Swap Dealer'' 
Definition
i. Core Dealer Analysis and De Minimis Exception

A. Overview

    Exchange Act rule 3a71-1 in part restates the statutory definition 
of ``security-based swap dealer'' to consolidate the definition and 
related interpretations for market participants' ease of reference. In 
conjunction with these final rules the SEC has set forth 
interpretations to provide additional guidance to implement the 
statutory approach of capturing persons that engage in certain 
security-based swap activities while excluding persons that do not 
engage in those activities as part of a ``regular business.'' \1503\ We 
believe that this guidance--including its reliance on the distinction 
between dealing activity and non-dealing activity such as hedging or 
trading--will allow a number of market participants to readily conclude 
that their security-based swap activities will not cause them to be 
security-based swap dealers. In adopting this approach, we have 
considered alternative views, expressed by some commenters, that would 
have had the effect of narrowing the statutory definition's 
scope.\1504\
---------------------------------------------------------------------------

    \1503\ See part II.A.5, supra.
    \1504\ These include suggestions that: the dealer definition 
should be interpreted to be coextensive with the concept of market 
making activity; the dealer definition requires that a person be 
available to take either side of the market at any time; the dealer 
definition should not extend to persons solely engaged in security-
based swap activity on swap execution facilities; the dealer 
definition should exclude persons whose security-based swap dealing 
activity is relatively small compared to its other activities; and 
dealing activity requires the presence of a ``customer'' 
relationship. See id. (discussing interpretive approach to 
``security-based swap dealer'' definition). Conversely, a few 
commenters suggested rejection of the dealer-trader distinction, and 
implied that the dealer definition should be applied more broadly. 
See id.
    These also include suggestions that the dealer analysis 
incorporate particular per se exclusions. Although we recognize that 
such approaches may be simpler for market participants to implement, 
we nonetheless do not believe that such per se exclusions would be 
consistent with the statutory definition, which identifies dealers 
based on their security-based swap activities. See part II.A.6, 
supra (discussing reasons not to include per se exclusions from the 
dealer definitions).
---------------------------------------------------------------------------

    Exchange Act rule 3a71-2 specifies when a person that otherwise 
would be a security-based swap dealer can take advantage of the de 
minimis exception. In adopting the rule's tests and thresholds--
including the use of a $3 billion notional threshold in connection with 
dealing activity involving credit default swaps that are security-based 
swaps, a $150 million notional threshold in connection with other types 
of security-based swaps, higher phase-in levels in connection with 
those thresholds, and a separate $25 million threshold in connection 
with dealing activity involving ``special entities''--we have 
considered a range of alternative approaches and thresholds suggested 
by commenters.\1505\
---------------------------------------------------------------------------

    \1505\ See parts II.D.3 and II.D.5, supra.
---------------------------------------------------------------------------

    In application, the assessment costs associated with the core 
dealer test and de minimis exception are linked.

B. Assessment Costs Associated With the Final Rules and Interpretations

    We recognize that certain participants in the security-based swap 
market may incur costs in connection with the facts-and-circumstances 
analysis of whether they are security-based swap dealers as defined in 
the statute and in the final rules, particularly with regard to the 
application of the dealer-trader distinction and the de minimis 
exception.
    As noted above, analysis of market data indicates that the 
overwhelming number of participants in the single-name credit default 
swap market in 2011 had total activities (dealing or non-dealing) of 
significantly less than $3 billion notional amount over the prior 12 
months.\1506\ In general--aside from potential dealing activity 
involving other types of security-based swaps and dealing activity 
involving ``special entities''--such persons likely would not be deemed 
to be security-based swap dealers regardless of whether their current 
level of security-based swap activities constitutes dealing (apart from 
those entities that increase their dealing activity following the 
implementation of Title VII).
---------------------------------------------------------------------------

    \1506\ Of 1,084 entities with single-name credit default swap 
transaction activity over the 12 months ending in December 2011, 961 
entities, or 88.7 percent, engaged in less than $3 billion notional 
in such activity. These 961 entities were responsible for 
approximately 3.2 percent of the notional value of all single-name 
credit default swap transactions during that period. See CDS Data 
Analysis, table 1.
---------------------------------------------------------------------------

    On the other hand, some market participants whose security-based 
swap activities exceed, or are not materially below, the $3 billion de 
minimis threshold may be expected to incur costs in connection with the 
dealer analysis. Those entities reasonably may conclude that they need 
to incur costs to analyze their security-based swap activities to 
determine whether those activities are non-dealing in nature (e.g., 
hedging or trading), or whether those activities instead are dealing in 
nature (e.g., part of a business purpose of providing liquidity in 
connection with security-based swaps), consistent with the statute and 
the rules and guidance provided in this release.\1507\
---------------------------------------------------------------------------

    \1507\ The use of the $8 billion phase-in level in connection 
with these activities may also be expected to temporarily mitigate 
such costs.
---------------------------------------------------------------------------

    There are over 1,000 entities (U.S. and non-U.S.) that from time to 
time may engage in single-name credit default swap transactions.\1508\ 
Of this number,

[[Page 30732]]

however, only 123 entities engaged in more than $3 billion in single-
name credit default swap transactions over the previous 12 months. For 
purposes of analyzing the assessment costs of this rule, we have 
assumed that all of these entities would perform the dealer 
analysis.\1509\ We also recognize that some entities whose activities 
fall below the de minimis threshold may opt to engage in this analysis 
out of an abundance of caution or to meet internal compliance 
requirements, and for purposes of this analysis have assumed that the 
43 entities whose activity during the trailing 12 month period fell 
between $2 and $3 billion also would engage in the dealer analysis, 
leading to a total of 166.\1510\
---------------------------------------------------------------------------

    \1508\ See CDS Data Analysis, table 1. The Federal Reserve Bank 
of New York has published data that is consistent with this 
analysis. See NY Fed analysis at 10 (noting that for a three month 
period spanning from May through July of 2010, there were 933 unique 
market participants in the credit default swap market).
     As noted above, see note 148, supra, in relying on the 
available data we are not indicating our views as to the application 
of Title VII to non-U.S. persons. Issues regarding the 
extraterritorial application of Title VII instead will be addressed 
in a separate release.
    \1509\ See CDS Data Analysis, table 1. This approach potentially 
overstates the number of entities that would need to engage in the 
analysis. Of entities with more than $3 billion in activity over the 
trailing 12 month period, some number can be expected to determine, 
given the nature of their business, that they are (or are not) 
dealers under the definition without having to engage in this 
analysis. For example, the NY Fed analysis discussed above found 
that so-called G14 dealers were responsible for roughly 78 percent 
of CDS transactions as buyer and 85 percent of CDS transactions as 
sellers, and that so-called ``other dealers'' were responsible for 
approximately an additional seven percent of CDS transactions as 
sellers and six percent as buyers. See NY Fed analysis at 9, table 
3. Many of these entities would likely determine that performing 
this analysis was unnecessary.
    \1510\ For the reasons stated above, we also believe that this 
number potentially overstates the number of entities with less than 
$3 billion in activity over the trailing 12 month period that would 
be likely to engage in this analysis. Because it appears that all 
entities engaged in security-based swap transactions with special 
entities engaged in more than $8 billion in security-based swap 
transactions in 2011, see CDS Data Analysis at 21 n.8, we do not 
expect that the de minimis threshold for dealing activity involving 
special entities to cause market participants to incur costs 
independent of those associated with the general de minimis 
threshold.
---------------------------------------------------------------------------

    This estimate of 166 entities, although derived from data about 
total (dealing and non-dealing) transactions,\1511\ illustrates a 
potential upper bound for the total costs arising from security-based 
swap dealer determinations, to the extent that all market participants 
whose security-based swap activity approaches or exceeds the $3 billion 
de minimis threshold identify a need to retain outside counsel to 
analyze their status under the security-based swap dealer definition. 
In that context, this estimate suggests that the costs of analysis may 
approach $4.2 million.\1512\
---------------------------------------------------------------------------

    \1511\ The CDS Data Analysis uses criteria that screen for 
likely characteristics of entities engaged in dealing activity. See 
CDS Data Analysis at 2. However, the available data does not permit 
identification of which of these entities' transactions arise from 
dealing activity and which arise from non-dealing activity (such as 
proprietary trading or hedging). It is therefore likely that the 
notional amounts provided in each table of the data analysis include 
both dealing and non-dealing activity. For purposes of the economic 
analysis of our rules further defining ``security-based swap 
dealer,'' we have assumed that the entire notional amount for each 
entity appearing in Tables 2-9 represents dealing activity. Although 
this potentially results in an overestimate of dealing activity for 
these entities--and thus in an overestimate of the costs associated 
with conducting the dealer analysis--we believe that this represents 
a conservative approach to evaluating the assessment costs of these 
rules.
    \1512\ This total is based on the assumption that 166 market 
participants would seek outside legal counsel to determine their 
status under the security-based swap dealer definition, with such 
analysis costing an average of $25,000 per entity.
    The average cost incurred by such entities in connection with 
outside counsel is based on staff experience in undertaking legal 
analysis of status under federal securities laws, and assumes that 
the legal analysis for a complex entity on average may cost $30,000, 
and that the legal analysis for a less complex entity on average may 
cost $20,000. The use of inside counsel in lieu of outside counsel 
would reduce this upper bound.
    We recognize that the complexity of market participants may vary 
greatly, and that we do not have insight into market participants 
such that we could reasonably determine how many entities may be 
considered more or less complex for these purposes. Thus, based on 
our understanding of the market we believe that an average of the 
costs associated with more complex and less complex entities 
equaling $25,000 would reasonably approximate the average costs for 
entities across the credit default swap market, assuming that all 
such participants perceive a need to retain outside counsel for 
purposes of the analysis.
---------------------------------------------------------------------------

    In accounting for the de minimis exception in estimating these 
costs, we note our expectation that market participants generally would 
be aware of the notional amount of their activity involving security-
based swaps as a matter of good business practice. Consequently, we 
would not expect market participants to incur costs in determining the 
availability of the de minimis exception significantly in excess of the 
costs associated with the general dealer determination.\1513\
---------------------------------------------------------------------------

    \1513\ We note that different cost estimates have been used for 
purposes of the ``swap dealer'' definition under the CEA. We do not 
believe that the estimate of the number of persons who would have to 
engage in a dealer analysis under the CEA would be germane to the 
analysis of the costs associated with the Exchange Act's ``security-
based swap dealer'' definition, given the wide range of markets that 
are exclusive to the ``swap'' definition. We also do not believe 
that the basis that underpins the CFTC's estimate of the cost of 
performing the dealer analysis under the definition of swap as set 
forth in the CEA would be relevant to the Exchange Act definition. 
In part, this is because we believe that the entities whose 
security-based swap activities may cause them to be dealers likely 
would have businesses that are financial in nature. We thus expect 
that those entities would be particularly sensitive to the link 
between the business purpose of their activities and the dealer 
definition. In many cases those entities also should be familiar 
with the use of the dealer-trader distinction in connection with 
their activities involving other types of securities.
    We also note that different cost estimates have been used for 
purposes of the de minimis exception under the CEA. We expect, 
however, that entities whose security-based swap activities may 
cause them to be dealers likely would have businesses that are 
financial in nature. We thus expect that those entities would: (a) 
be well placed to distinguish their security-based swap dealing 
activities from their non-dealing activities under the dealer-trader 
distinction; and (b) would be familiar with the notional amount of 
their security-based swap activities over the prior year.
---------------------------------------------------------------------------

    We recognize that additional market participants may be expected to 
incur these types of assessment costs to the extent that they engage in 
activity involving other types of security-based swaps in an amount 
close to, or in excess of, $150 million annually. Because the market 
for these other types of security-based swaps appears to be highly 
concentrated (like the single-name credit default swap market) and to 
involve many of the same entities,\1514\ we expect the number of 
entities that will incur assessment costs solely by virtue of this 
lower threshold also to be small.
---------------------------------------------------------------------------

    \1514\ See, e.g., OCC Quarterly Report at tables 1 and 10 
(listing notional credit and equity derivatives for largest U.S. 
banks and trust companies). See also note 429, supra.
---------------------------------------------------------------------------

    In addition, we recognize that some market participants potentially 
may incur these types of assessment costs to the extent they engage in 
security-based swap activities in an amount close to, or in excess of, 
$25 million annually.\1515\
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    \1515\ We believe that any such costs would be modest, in light 
of data indicating that persons who are counterparties to special 
entities in the single-name credit default swap market may otherwise 
have to register as dealers notwithstanding the lower threshold 
connected with special entities. See note 1510, supra.
---------------------------------------------------------------------------

    For the reasons discussed above we believe that the approach we are 
adopting in the final rules is necessary and appropriate given the 
goals of Title VII and the statute's express requirement that we 
implement a de minimis exception to the dealer definition.
ii. Additional Issues Related to the Dealer Analysis

A. Limited Designation of Dealers

    Exchange Act rule 3a71-1(c) implements the portion of the 
``security-based swap dealer'' definition that provides for limited 
purpose registration of dealers. The rule provides for a presumption 
that a person that acts as a security-based swap dealer is a dealer 
with regard to all of its security-based swaps or security-based swap 
activities, unless the SEC limits its designation. While we recognize 
that permitting persons to more broadly take advantage of limited 
dealer designations potentially would lower the cumulative costs that 
individual dealers otherwise would incur to determine whether to

[[Page 30733]]

seek a limited designation,\1516\ after careful consideration of 
commenter concerns we have determined that it is appropriate to adopt a 
presumption against limited designation.\1517\
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    \1516\ A default presumption in favor of the availability of 
limited designations may be expected to reduce the costs associated 
with an entity determining whether it qualifies for such relief, 
such as the costs of hiring outside legal counsel to undertake this 
analysis to determine that they could take advantage a limited 
designation relief.
    \1517\ In this regard we note the relative lack of data about 
the types of security-based swap positions held by particular 
entities that will fall within the dealer definition. Our decision 
takes into account the difficulty of separating a dealer's 
activities from its non-dealing activities for compliance purposes, 
and the challenges of applying dealer requirements to only a portion 
of the entity's security-based swap activities. In reaching our 
decision, we have especially been influenced by the statutory 
definition's discretionary language in connection with the potential 
for limited designations, and by the need for persons subject to 
limited designations to be able to comply with the statutory and 
regulatory requirements applicable to major participants. See part 
II.E.3, supra (discussing limited designation principles applicable 
to dealers).
    We note that the discussion of limited designation of ``swap 
dealers'' under the CEA generally seeks to quantify the costs 
associated with applications for limited designations. However, we 
believe that the costs of applying for a limited designation are 
dependent upon the application process for this type of registration 
category. As noted previously, the SEC expects to address the 
limited designation application process for security-based swap 
dealers in separate rulemakings. See id. As such, we believe that 
the costs associated with security-based swap dealer limited 
designation applications under the Exchange Act are more 
appropriately addressed in the context of those separate 
rulemakings.
---------------------------------------------------------------------------

    Certain persons who satisfy the dealer definition may incur costs 
in determining whether to seek a limited designation. We believe that 
such costs would affect no more than the 166 entities that potentially 
may be expected to engage in the dealer analysis,\1518\ and expect 
these costs to be included in the estimated costs of seeking outside 
legal counsel described above.
---------------------------------------------------------------------------

    \1518\ As discussed above, see note 1457, supra, we have 
estimated that 50 or fewer entities ultimately may have to register 
as security-based swap dealers.
---------------------------------------------------------------------------

B. Exclusion of Inter-Affiliate Security-Based Swaps

    Exchange Act rule 3a71-1 also provides that security-based swaps 
between majority-owned affiliates will be excluded for purposes of the 
dealer analysis. After consideration of commenter views, we are 
adopting this standard, rather than potential alternatives such as a 
common control test, because we believe that it is appropriate, in 
light of the goals of Title VII, that the dealer definition not capture 
entities by virtue of security-based swap transactions with affiliated 
entities that have a sufficient alignment of economic interests to 
avoid raising systemic risk, customer protection, and other concerns 
that dealer regulation is intended to address.\1519\ Moreover, we note 
that a majority-ownership test should, given its objective nature, 
impose fewer assessment costs on market participants than a more 
subjective common control test.
---------------------------------------------------------------------------

    \1519\ See part II.C.2, supra.
---------------------------------------------------------------------------

    Some market entities may need to incur costs in connection with 
determining whether particular security-based swap positions may be 
excluded from the dealer analysis by virtue of the inter-affiliate 
exclusion. Such costs potentially could be incurred by any of the 
approximately 166 entities that we believe may engage in the dealer 
analysis. The costs specifically associated with that assessment may 
vary depending on factors including the extent to which those entities 
engage in inter-affiliate security-based swaps, but we expect these 
costs to be included in the estimated costs of seeking outside legal 
counsel described above.

C. Timing Issues Connected to the De Minimis Exception

    In response to commenter concerns, Exchange Act rule 3a71-2 
specifies that an entity that no longer may rely on the de minimis 
exception, because its dealing activity has exceeded the exception's 
thresholds, has two months to submit a completed application to 
register as a dealer.\1520\ The final rule also specifies that a person 
who has been registered as a dealer for at least 12 months may withdraw 
from registration while continuing to engage in a limited amount of 
dealing activity under the exception.
---------------------------------------------------------------------------

    \1520\ See part II.D.6, supra (discussing rational for final 
rule addressing registration period for entities that exceed the de 
minimis threshold).
---------------------------------------------------------------------------

    In adopting these rules we have carefully considered alternatives 
that would lead to slower entry and faster exit from dealer status, and 
we recognize that providing particular entities with additional time to 
register as a dealer may have the potential to reduce the costs 
associated with the registration process.\1521\ We believe, however, 
that a two-month period for registration should provide entities with 
sufficient time to register without incurring additional expenses--both 
for large firms with security-based swap businesses well above the $3 
billion threshold, and for mid-sized firms that fluctuate near the $3 
billion threshold amount. We also conclude that this approach will 
appropriately help to avoid applying dealer requirements to entities 
that no longer meet the dealer criteria, and will avoid the prospect of 
persons moving in and out of dealer status overly frequently.
---------------------------------------------------------------------------

    \1521\ For example, a shorter period for registration might be 
expected to cause some entities to incur over-time costs arising 
from the need to complete the registration process within a short 
time frame, whereas a longer time period could have enabled such an 
entity to avoid those costs.
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b. Assessment Costs Associated With the ``Major Security-Based Swap 
Participant'' Definition
i. ``Substantial Position'' and ``Substantial Counterparty Exposure'' 
Definitions

A. Overview of ``Substantial Position'' and ``Substantial Counterparty 
Exposure'' Definitions

    Exchange Act rule 3a67-3 defines the term ``substantial position'' 
for purposes of the first and third tests of the statutory major 
participant definition (which address whether a person has a 
``substantial position'' in a major category of security-based swaps). 
The final rule sets forth two tests for identifying the presence of a 
substantial position--one test based on a $1 billion daily average 
measure of uncollateralized mark-to-market exposure, and one based on a 
$2 billion daily average measure of combined uncollateralized mark-to-
market exposure and potential future exposure. Both of those daily 
measures would be calculated and averaged over a calendar quarter. In 
developing the ``substantial position'' tests and their associated 
thresholds, we have sought to capture those entities whose security-
based swap positions have the potential to pose significant risks to 
financial markets, while not capturing other entities for which major 
participant regulation and its associated costs would be 
unwarranted.\1522\
---------------------------------------------------------------------------

    \1522\ See part IV.B.3, supra (discussing basis for the 
substantial position analysis we are adopting).
---------------------------------------------------------------------------

    Exchange Act rule 3a67-5 defines ``substantial counterparty 
exposure that could have serious adverse effects on the financial 
stability of the United States banking system or financial markets,'' a 
phrase that comprises part of the second test of the ``major security-
based swap participant'' definition. The analysis set forth in this 
rule parallels the ``substantial position'' analysis, but: (i) Contains 
higher thresholds; (ii) examines an entity's security-based swap 
positions as a whole (rather than focusing on a particular ``major'' 
category); and (iii) would not exclude certain hedging positions.\1523\
---------------------------------------------------------------------------

    \1523\ See part IV.E.3, supra (discussing basis for the 
substantial counterparty exposure analysis we are adopting).
---------------------------------------------------------------------------

    In adopting these definitions, we carefully considered alternative

[[Page 30734]]

approaches suggested by commenters, including suggestions that the 
thresholds should be raised or lowered, and that certain positions 
should be excluded from the potential future exposure test, or that the 
test should discount certain positions differently.\1524\ We have 
retained the tests largely as proposed, however, as we believe that the 
tests appropriately address the risk criteria embedded in the major 
participant definition.\1525\ We also believe that the tests minimize 
the assessment costs to these entities in a manner consistent with the 
statutory definition. For example, the decision to base the potential 
future exposure analysis on tests used by bank regulators for purposes 
of setting prudential capital reflects our view that it would be 
appropriate to implement the analysis by building upon an existing 
regulatory approach that is less subjective--and thus less costly--for 
market participants to utilize (as compared to, for example, a VaR 
approach \1526\) and would lead to reproducible results, rather than 
seeking to develop a brand new approach.\1527\
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    \1524\ See parts IV.B.2 and IV.E.2, supra.
    \1525\ See part IV.B.3, supra (discussing the decisions made 
regarding the substantial position definition and the reasoning 
behind the adopted approach). For example, we have concluded that 
the proposed thresholds are set prudently in a manner that takes 
into account the financial system's ability to absorb losses of a 
particular size, the need for major participant regulation not to 
encompass entities only after they pose significant risks to the 
market, and the need to account for the possibility that multiple 
market participants may fail close in time. In addition, as 
discussed above, we believe that this threshold is tailored to 
address the types of events associated with the failure of AIG FP. 
See part IV.B.3.d, supra.
    As discussed above, for an entity with no current 
uncollateralized exposure--and before accounting for netting--it 
would take a $100 billion notional portfolio of marked-to-market 
security-based swaps that reflect written protection on credit to 
meet the $2 billion potential future exposure threshold for 
security-based credit derivatives, and it would take a $200 billion 
notional portfolio of cleared positions to meet that threshold. Even 
in the absence of clearing or daily mark-to-market margining, it 
would take a minimum $20 billion notional portfolio of written 
protection on credit (reflecting the 0.10 multiplier in the risk 
adjustment tables) to meet the $2 billion potential future exposure 
threshold. Accounting for netting (which can reduce potential future 
exposure measures by up to 60 percent) could materially increase 
that required amount. See note 914, supra.
    \1526\ For example, because value-at-risk measures typically 
account only for market risk and not for other types of risk, an 
approach based on such measures would likely require separate 
calculations for these other risks, as well as calculations to 
account for possible losses in the event of a severe market 
downturn; such an approach would also require the selection of 
appropriate parameters for the test. See Concept Release: Net 
Capital, Exchange Act Rel. No. 39456, at 13-19 (comparing value-at-
risk and haircut approaches to net capital calculations).
    \1527\ See part IV.B.3.c, supra.
---------------------------------------------------------------------------

B. Assessment Costs Associated With the Final Rules Defining 
``Substantial Position'' and ``Substantial Counterparty Exposure''

    Certain market participants may be expected to incur costs in 
connection with the determination of whether they have a ``substantial 
position'' in security-based swaps or pose ``substantial counterparty 
exposure'' in connection with security-based swaps.
    Based on a review of notional positions maintained in 2011 by 
entities with single-name credit default swap positions, we estimate 
that approximately 12 entities have security-based swap positions of 
such an amount that, as a matter of prudence, they may reasonably find 
it necessary to engage in the requisite calculations, particularly 
given the additional availability of the calculation safe harbor.\1528\ 
In our view, the data indicates that other than approximately 12 
entities, the non-dealer market participants in the security-based swap 
market use these products in such limited amounts that they reasonably 
would conclude that they do not need to undertake the calculations used 
to determine whether they have a ``substantial position.'' \1529\
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    \1528\ In the Proposing Release, we stated that based on our 
understanding of the market, we concluded that only 10 entities had 
security-based swap positions of a size to necessitate performing 
the calculations to determine whether they meet those thresholds. 
See Proposing Release, 75 FR at 80207-08. Some commenters challenged 
the assumption that only approximately 10 entities would engage in 
the requisite calculations. Those commenters took the view that 
certain entities with smaller security-based swap positions would 
perceive a need to conduct the relevant calculations on a daily 
basis even if they are not reasonably likely to be major 
participants, and, to address that concern, requested a safe harbor 
from having to perform the major participant calculations. See 
letters from SIFMA AMG I and Vanguard.
    \1529\ As discussed above, an entity that margins its positions 
daily generally would need to have security-based swap positions 
approaching $100 billion notional to meet the substantial position 
threshold, assuming no current uncollateralized exposure, while an 
entity that clears those positions generally would need positions 
approaching $200 billion notional to meet the threshold. See note 
914, supra. We believe that it is reasonable to assume that most 
entities that will have security-based swap positions large enough 
to potentially cause them to be major participants in practice will 
post variation margin in connection with those positions that they 
do not clear, making $100 billion the relevant measure. The 
available data shows that as of December 2011 a single entity had 
aggregate gross notional positions from bought and sold credit 
protection exceeding $100 billion, four had aggregate gross notional 
single-name credit default swap positions exceeding $50 billion, and 
12 had aggregate gross notional single-name credit default swap 
positions exceeding $25 billion. See CDS Data Analysis at table 10. 
Making allowances for certain entities that may determine, due to 
internal policies or other reasons, that they need to conduct this 
analysis and cannot rely on the calculation safe harbor we also are 
adopting, we believe that it is reasonable to assume that entities 
with aggregate gross notional single-name credit default swap 
positions exceeding $25 billion may identify a need to perform the 
major participant analysis. (In the Proposing Release, we stated 
that based on our understanding of the market, we thought that fewer 
than ten entities had security-based swap positions of a size to 
necessitate performing the calculations to determine whether they 
meet those thresholds. See Proposing Release, 75 FR at 80207-08.)
    We believe, moreover, that the estimate that 12 entities will 
perceive a need to perform this analysis in practice may overstate 
the number of entities that reasonably will find it necessary to 
perform the major participant analysis, given that only four 
entities had $25 billion or more of aggregate gross notional single-
name credit default swap positions arising from the selling of 
credit protection. See id. As discussed above, moreover, we believe 
that fewer than five entities ultimately may be required to register 
as major security-based swap participants. See part VIII.A.2.d.i.C, 
supra.
     Finally, we note that this estimate may also overstate the size 
of positions held by individual legal entities, thus further 
overstating the number of legal entities that have security-based 
swap positions of such a size as to potentially trigger major 
participant status. This is because the data in the analysis at 
times aggregates multiple affiliated accounts--which may reflect the 
legal entities that are counterparties to the security-based swap--
at the parent level. While such aggregation is appropriate for these 
purposes given that parents may be deemed to be major participants 
by virtue of security-based swap positions that they guarantee, the 
aggregation in fact may tend to overstate the extent to which a 
legal entity bears credit risk in connection with security-based 
swaps.
     To the extent that an entity's security-based swap transactions 
are not cleared or associated with the posting of variation margin, 
security-based swap positions of $20 billion may lead to sufficient 
potential future exposure to cause the entity to be a major 
participant. As we have noted, we believe that few if any entities 
with significant security-based swap positions will have a 
significant number of such transactions. Even then, the data 
indicates that only a total of 32 entities have notional credit 
default swap positions in excess of $10 billion. See CDS Data 
Analysis at table 10 (showing that 32 entities have aggregate gross 
single-name credit default swap positions of $10 billion or 
greater).
---------------------------------------------------------------------------

    Although some commenters noted concerns about the complexity of the 
major participant calculation,\1530\ commenters did not appear to 
directly question the Proposing Release's per-entity cost 
estimates.\1531\ After further

[[Page 30735]]

consideration, however, we are modifying that estimate, in that we 
believe that the annual per-entity costs associated with the assessment 
will amount to $15,268, and the annual one-time per-entity costs 
associated with the assessment will amount to approximately 
$13,692.\1532\ The total industry-wide assessment costs associated with 
the major participant definition, given our expectation that 12 
entities will need to engage in this analysis, is $183,216 for annual 
costs and $164,304 for annual one-time costs.\1533\
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    \1530\ E.g., letter from WGCEF II (addressing technical 
complexity of the proposed major participant calculations).
    \1531\ Based on industry discussions, in the Proposing Release 
we estimated that those 10 entities would incur one-time programming 
costs of approximately $13,444 per entity, or $134,440 in total, and 
that these entities would incur annual ongoing costs of $7,260 per 
entity, or $72,600 in total. See Proposing Release, 75 FR at 80207-
08, nn.183-86 and accompanying text (providing a summary of the 
methodology used to estimate these costs). The hourly cost figures 
in the Proposing Release for the positions of Compliance Attorney, 
Compliance Manager, Programmer Analyst, and Senior Internal Auditor 
were based on data from SIFMA's Management & Professional Earnings 
in the Securities Industry 2009. For purposes of the cost estimates 
in this release, we have updated these figures with more recent data 
as follows: the figure for a Compliance Attorney is $322/hour, the 
figure for a Compliance Manager is $279/hour, the figure for a 
Programmer Analyst is $196/hour, and the figure for a Senior 
Internal Auditor is $198/hour, each from SIFMA's Management & 
Professional Earnings in the Securities Industry 2011, modified by 
SEC staff to account for an 1800-hour work-year and multiplied by 
5.35 to account for bonuses, firm size, employee benefits, and 
overhead. We have also updated the Proposing Release's $450/hour 
figure for a Chief Financial Officer, which was based on data from 
2010. Using the consumer price index to make an inflation adjustment 
to this figure, we have multiplied the 2010 estimate by 1.03 and 
arrived at a figure of $464/hour for a Chief Financial Officer in 
2011. Incorporating these new cost figures, the updated one-time 
programming costs based upon our assumptions regarding the number of 
hours required in the proposing release would be $13,692 per entity, 
or $136,920 in total, and the annual ongoing costs would be $7,428 
per entity, or $74,280 in total.
    \1532\ This revision in part is based on the addition of an 
ongoing cost of a Programmer Analyst who we estimate would spend an 
additional 40 hours annually on software maintenance attributable to 
the modifications made to an automated system to undertake these 
tests. We further estimate that the hourly wage of a Programmer 
Analyst would be approximately $196. The $196/hour figure for a 
Programmer Analyst is from SIFMA's Management & Professional 
Earnings in the Securities Industry 2011, modified by SEC staff to 
account for an 1800-hour work-year and multiplied by 5.35 to account 
for bonuses, firm size, employee benefits, and overhead. Based on 
these assumptions, we estimate these additional costs as $7,840 per 
year per entity and $94,080 per year for all entities as follows: 
(Programmer Analyst at $196 per hour for 40 hours) x (12 entities) = 
$94,080.
    \1533\ These adjustments do not materially change the estimated 
costs associated with performing these calculations.
    To the extent that additional entities perceive a need to 
perform the major participant calculations provided by the rules, 
notwithstanding a relatively low position in security-based swaps, 
these costs would differ. For example, if we assume that 32 entities 
will perceive the need to conduct the major participant analysis, 
see note 1529, supra, initial legal costs will total approximately 
$960,000 (based on the per-entity cost estimate of $30,000); one-
time industry-wide costs would total approximately $440,000 (based 
on the per-entity cost estimate of $13,692); and annual industry-
wide costs would total approximately $490,000 (based on the per-
entity cost estimate of $15,268 addressed below).
    At the extreme, available data indicates that 1,188 participants 
have single-name credit default swap positions in the security-based 
swap market (excluding ISDA-recognized dealers and ICE Trust). See 
CDS Data Analysis at table 10, To the extent that none of these 
1,188 entities avail themselves of the calculation safe harbor we 
are adopting, and that all of them engage in the full major 
participant analysis, then there potentially will be initial legal 
costs of approximately $35.6 million (based on the per-entity cost 
estimate of $30,000), one-time industry-wide costs of approximately 
$16.3 million (based on the per-entity cost estimate of $13,692), 
and annual industry-wide costs of approximately $18.1 million (based 
on the per-entity cost estimate of $15,268 addressed below).
     In practice, however, we think that the estimates for 12 
entities more fairly assesses the relevant costs for the reasons 
discussed above. See note 1529, supra. In our view, a large number 
of participants in the market have notional security-based swap 
positions low enough to permit them to conclude that they do not 
have to engage in the relevant calculations. See id.
---------------------------------------------------------------------------

    We believe that these estimates also address the assessment costs 
under the ``substantial counterparty exposure'' test. Because credit 
default swaps may be expected to constitute the bulk of the likely 
security-based swap market, it is possible that participants in the 
market may be more likely to have a ``substantial position'' in debt-
related security-based swaps than they would be to meet this second 
test. Nonetheless, we conservatively estimate that the same 
approximately 12 entities would engage in the ``substantial 
counterparty exposure'' calculation as would undertake the 
``substantial position'' calculation.\1534\ Given the link between this 
rule and the ``substantial position'' calculations, however, we do not 
anticipate that the ``substantial counterparty exposure'' test would 
create incremental costs additional to those associated with the 
definition of ``substantial position.'' \1535\ We thus believe that the 
estimate of assessment costs in connection with the ``substantial 
position'' analysis (consisting of one-time programming costs of 
approximately $13,692 per entity, and annual costs of $15,268 per 
entity) also adequately addresses the costs of assessment under this 
statutory test.\1536\
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    \1534\ See part VIII.A.3.b.i.A, supra. These costs would differ 
if additional entities perceive a need to perform the major 
participant calculations provided by the rules, notwithstanding a 
relatively low position in security-based swaps. Commenters have 
taken the view that more than 10 entities may identify a need to 
perform the requisite calculations. As already noted, based on the 
analysis of 2011 transaction data, we have revised this estimate 
upward to 12 entities, though we believe that the actual number is 
likely to be smaller. In any event, these concerns should be 
addressed by the calculation safe harbor that we are adopting as 
part of these final rules.
    \1535\ See Proposing Release, 75 FR at 80209.
    \1536\ We note that higher cost estimates have been used for 
purposes of the ``major swap participant'' definition under the CEA. 
We expect, however, that the entities that may have security-based 
swap positions of a size that could lead them to be major 
participants likely would have businesses that are financial in 
nature (rather than being non-financial entities that use security-
based swaps as part of their commercial activities). As such, we 
would expect those entities to generally be cognizant of, or in a 
good position to obtain information about: their uncollateralized 
exposure with counterparties (to the extent that those financial 
entities have any material amount of uncollateralized exposure); the 
total notional amount of their security-based swap positions; the 
notional amount of those positions that are subject to central 
clearing or daily mark-to-market margining; and the extent to which 
those positions are in-the-money or out-of-the-money (for purposes 
of calculating the netting discount to the potential future exposure 
calculation). We also expect that security-based swaps will be used 
less frequently for hedging purposes than swaps. See, e.g., 
Bernadette A. Minton, Ren[eacute] Stulz & Rohan Williamson, ``How 
Much Do Banks Use Credit Derivatives to Hedge Loans?,'' 35 J. Fin. 
Serv. Res. 1 (2008) (noting that the ``net notional amount of credit 
derivatives used for hedging of loans in 2005 represents less than 
2% of the total notional amount of credit derivatives held by 
banks''). Accordingly, there is reason to believe that the costs of 
calculation associated with the ``major security-based swap 
participant'' assessment will be lower than the costs associated 
with the ``major swap participant'' assessment.
---------------------------------------------------------------------------

    At the same time, upon further consideration we believe these rules 
also may impose certain interpretive costs, including those related to 
obtaining legal counsel, on market participants. Given the size and 
complexity of the entities that may find it necessary to analyze their 
status under the major participant definition, we believe that it is 
reasonable to conclude that at least some entities with security-based 
swap positions that approach the major participant thresholds are 
likely to seek legal counsel for interpretation of various aspects of 
the rules pertaining to the major participant definition. The costs 
associated with obtaining such legal services would vary depending on 
the relevant facts and circumstances, including the size and complexity 
of the person's security-based swap positions, and the extent to which 
these interpretations may be germane to whether the entity ultimately 
is deemed to be a major participant. We believe, however, that $30,000 
represents a reasonable estimate of the upper end of the range of the 
costs of obtaining the services of outside counsel in undertaking the 
legal analysis of the entity's status as a major participant.\1537\

[[Page 30736]]

Based on the conclusion that no more than 12 entities have security-
based swap positions that they would face enough of a possibility of 
being a major participant that they would need to engage in such 
analysis,\1538\ we estimate that the total legal costs associated with 
evaluating the various elements of this definition may approach 
$360,000.\1539\
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    \1537\ The average cost incurred by such entities in connection 
with outside counsel is based on staff experience in undertaking 
legal analysis of status under federal securities laws. The staff 
believes that costs associated with obtaining outside legal counsel 
relating to such determinations range from $20,000 to $30,000 
depending on the complexity of the entity. We believe that an entity 
that maintains security-based swap exposures of the size that would 
necessitate undergoing this analysis will generally be large, 
complex financial organizations. We also recognize that, while the 
major participant test may be more objective and quantitative than 
the dealer test (and therefore require a less involved legal 
analysis), the test is novel (unlike the core dealer test, which 
draws on the dealer-trader distinction familiar to many market 
participants) and, as such, may cause entities to incur additional 
costs in interpreting and applying the test. Together, these factors 
lead us to estimate that entities undertaking this analysis will 
incur legal costs at the upper end of our estimated range. The use 
of inside counsel in lieu of outside counsel would reduce this upper 
bound.
     The legal costs associated with the major participant analysis 
may include, among other things, legal advice with respect to 
whether an affiliate with which the entity enters into security-
based swap transactions qualifies as an ``affiliate'' under rule 
3a67-3, whether particular transactions fall within the definition 
of security-based swap, whether certain types of security-based swap 
transactions fall within the debt-based security-based swap or other 
security-based swap category, whether the entity falls within the 
definition of ``financial entity,'' and whether certain types of 
security-based swap transactions qualify for the hedging exclusion 
under the substantial exposure tests. We recognize that the 
complexity of the analysis required for any of these issues may vary 
considerably across entities, depending on each entity's individual 
business model.
     The major participant test is based on daily average exposures 
over the course of the previous quarter, and, as discussed further 
below, some number of entities may decide to establish a system that 
will monitor their exposure on an ongoing basis. To the extent that 
the entity does so, we expect that any initial legal analysis should 
permit the entity to make determinations about these calculations on 
an ongoing basis. As such, we assume that any additional costs 
associated with outside counsel with respect to ongoing monitoring 
of positions would be negligible.
    \1538\ See note 1529, supra.
    \1539\ If 32 entities were to perform this analysis, as 
discussed above, the market-wide legal costs associated with the 
analysis would total $960,000.
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ii. Calculation Safe Harbor
    We also are adopting Exchange Act rule 3a67-9, which provides a 
safe harbor from the definition of ``major security-based swap 
participant'' for market participants whose security-based swap 
positions fall below certain thresholds. This safe harbor responds to 
concerns raised by commenters that--based on internal compliance 
policies and procedures, out of an abundance of caution, or for other 
reasons--certain entities may feel compelled to perform the full major 
participant calculations even if their security-based swap positions 
did not rise to a level near the thresholds in the ``substantial 
position'' or ``substantial counterparty exposure'' definitions.\1540\
---------------------------------------------------------------------------

    \1540\ In particular, some commenters challenged the assumption 
in the Proposing Release that only approximately 10 entities had 
security-based swap positions large enough to lead them to engage in 
the major participant calculations. Those commenters took the view 
that certain entities with smaller security-based swap positions 
would perceive a need to conduct the relevant calculations on a 
daily basis even if they are not reasonably likely to be major 
participants, and, to address that concern, requested a safe harbor 
from having to perform the major participant calculations. See 
letters from SIFMA AMG I and Vanguard.
---------------------------------------------------------------------------

    The safe harbor makes use of three alternative tests. The first of 
these is based on the maximum possible uncollateralized exposure under 
the applicable credit support arrangements, and on the notional amount 
of a participant's security-based swap positions. The two other 
alternatives entail monthly calculations, with the second alternative 
using calculations based on the maximum possible uncollateralized 
exposure under the applicable credit support arrangements and monthly 
adaptations of the substantial position and substantial counterparty 
exposure calculations, and the third alternative using calculations 
based on uncollateralized exposure and a modified version of the 
potential future exposure calculation.
    Although the provisions of the safe harbor we are adopting do not 
mirror the safe harbors suggested by commenters,\1541\ the inclusion of 
this safe harbor should help address commenter concerns regarding 
entities with small positions that would nonetheless feel compelled 
(due to their own internal compliance programs, or otherwise) to 
undertake the major participant calculations. While recognizing that 
more liberal standards for this safe harbor \1542\ could further 
mitigate costs of assessing major participant status, the safe harbor 
may be expected to help some entities avoid the costs associated with 
assessing if they are major participants.
---------------------------------------------------------------------------

    \1541\ See part IV.M, supra (discussing rationale for safe 
harbor).
    \1542\ See part IV.M.2, supra (discussing rationale for final 
rule implementing safe harbor).
---------------------------------------------------------------------------

    It is not clear how many firms may ultimately seek to rely on the 
calculation safe harbor.\1543\ Participants in the security-based swap 
market vary greatly in the size of their positions, and may be expected 
to vary greatly in the complexity of their operations, and in the 
requirements of their internal compliance and risk management policies. 
As a result, it is possible that some firms with relatively small 
positions may choose to undertake the safe harbor analysis while 
significantly larger firms may determine that such analysis is 
unnecessary.
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    \1543\ As noted previously in part VIII.A.3.b.i.B, supra, we 
expect that approximately 12 entities may have security-based swap 
positions in an amount such that it may be reasonably necessary for 
them to undertake the major participant calculations. To the extent, 
however, that entities with smaller positions nonetheless identify a 
reason to perform a major participant analysis, the safe harbor 
would permit those entities to conclude that they are not major 
participants without the need to engage in the full set of 
calculations otherwise anticipated by the rules.
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    The first of the three alternatives within the safe harbor would be 
based on the maximum possible uncollateralized exposure under the 
applicable credit support arrangements, and on the notional amount of a 
participant's security-based swap positions. We believe that as a 
matter of good business practice large participants in the security-
based swap market already would be aware of that information, making 
the test relatively simple to implement. We also note that available 
data indicates that 1,073 of the 1,188 entities with single-name credit 
default swap positions (other than ISDA-recognized dealers and ICE 
Trust), have notional positions less than $2 billion, potentially 
making the first test of the safe harbor available to them.\1544\
---------------------------------------------------------------------------

    \1544\ See CDS Data Analysis at table 10.
---------------------------------------------------------------------------

    The other alternatives within the safe harbor would also entail 
monthly calculations, with such calculations for the second alternative 
based on the maximum possible uncollateralized exposure under the 
applicable credit support arrangements and monthly adaptations of the 
substantial position and substantial counterparty exposure 
calculations, while the monthly calculation for the third alternative 
is based on uncollateralized exposure and a modified version of the 
potential future exposure calculation. Both of these would entail 
additional analysis beyond current industry practices, causing entities 
to incur higher costs than the first alternative, but no more than 
would be required to complete the full major participant test.\1545\
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    \1545\ We expect that the outer bounds of the assessment costs 
associated with this safe harbor will be no higher than the one-time 
costs associated with conducting the major participant analysis, 
given that, to the extent that an entity determines that performing 
the safe harbor analysis is more expensive, it would likely choose 
to perform the less-costly major participant analysis. As such, the 
upper bound of costs associated with the safe harbor is not likely 
to exceed our estimates of the costs associated with the full major 
participant analysis, and should in fact be considerably lower.
    We estimate that one-time costs associated with establishing a 
system to identify and monitor security-based swap positions, as may 
be necessary to perform the monthly assessments anticipated by two 
of the three alternative tests that comprise the safe harbor, would 
be similar to the one-time costs associated with the major 
participant analysis, and that, therefore, up to 1,188 entities may 
incur one-time industry-wide costs of approximately $16.3 million. 
See note 1533 and accompanying text, supra. The annual costs 
associated with monthly assessment would be expected to be less than 
the costs of daily assessment, and $9.1 million--approximately half 
of the estimated $18.1 million estimated annual costs if all 1,188 
entities found it necessary to perform the daily assessment required 
by the substantial position test (see id.)--may be a reasonable 
estimate of that amount, given the relative simplicity of the test 
and the less frequent assessments that it requires. In practice, 
however, we believe that the costs associated with this safe harbor 
will be less because we expect that far fewer entities would 
perceive a need to rely on these aspects of the safe harbor, 
particular given that, as noted above, approximately 1,073 entities 
have aggregate gross notional single-name credit default swap 
positions under $2 billion. See note 1544 and accompanying 
discussion, supra.
    We note that our analysis of the safe harbor in connection with 
the ``major security-based swap participant'' definition differs 
from that of the CFTC with regard to the ``major swap participant'' 
safe harbor. This, in part, reflects the differences between the 
markets for swaps and security-based swaps. We also note our 
expectation that many of the entities that may opt to avail 
themselves of the safe harbor likely would have businesses that are 
financial in nature (rather than being non-financial entities that 
use security-based swaps as part of their commercial activities). As 
such, we would expect those entities to generally be cognizant of, 
or in a good position to obtain information about: Their maximum 
potential uncollateralized exposure with security-based swap 
counterparties; the total notional amount of their security-based 
swap positions; the notional amount of those positions that are 
subject to central clearing or daily mark-to-market margining; and 
the extent to which those positions are in-the-money or out-of-the-
money (for purposes of calculating the netting discount to the 
potential future exposure calculation). Other non-financial entities 
seeking to take advantage of the safe harbor may minimize their 
costs by utilizing whichever safe harbor option may be expected to 
most closely align with the security-based swap information that 
readily is available to such entities.

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[[Page 30737]]

iii. Additional Issues Related to the Major Participant Analysis

A. ``Major'' Categories of Security-Based Swaps

    Exchange Act rule 3a67-2 sets forth two ``major'' categories of 
security-based swaps for purposes of the first and third tests of the 
major participant definitions--one consisting of debt-based security-
based swaps and the other consisting of other security-based swaps 
(including equity swaps). These categories are consistent with our 
understanding of the ways in which those products are used, as well as 
market statistics and current market infrastructures,\1546\ and we 
believe it is appropriate that those market categories be reflected in 
the major participant definition.
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    \1546\ In particular, the major categories of security-based 
swaps adopted in these final rules are consistent with how bank 
derivatives data is presented by the Office of the Comptroller of 
the Currency, as well as with categories used by derivatives market 
infrastructure such as The Depository Trust & Clearing Corporation. 
See part IV.A.3, supra.
---------------------------------------------------------------------------

    The consistency of the rule with current market practices should 
help mitigate any assessment costs incurred by market participants. 
Moreover, we do not expect that market participants will be required to 
incur costs to determine the major category with respect to a large 
majority of their security-based swap positions, given that the vast 
majority of security-based swaps likely fall within the debt-based 
security-based swap major category. Also, in adopting the final rules 
we also have provided additional guidance related to the categorization 
of certain types of instruments in response to commenter concerns. 
Nonetheless, given the fact-specific nature of any such assessment, we 
recognize that some entities may seek the opinion of legal counsel as 
to how specific security-based swap transactions should be categorized 
for purposes of this rule (such as legal costs associated with having 
counsel analyze a particular security-based swap to determine its 
status under these rules, to the extent that certain types of security-
based swaps with complex, novel or bespoke structures are not readily 
categorized within one of the two identified major categories). We 
expect that these costs would be included in the estimated costs of 
seeking outside legal counsel in connection with the major participant 
analysis, as described above.\1547\
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    \1547\ Entities may also incur programming and other costs 
related to recording the classification of their security-based swap 
transactions in systems designed to monitor current exposure and 
potential future exposure, but we expect these costs to be one 
component of entities' overall system costs relating to its 
substantial position calculations, which we discuss in further 
detail above. See part VIII.A.3.b.i.B, supra.
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B. Definition of ``Hedging or Mitigating Commercial Risk''

    Exchange Act rule 3a67-4 defines the term ``hedging or mitigating 
commercial risk'' for purposes of the exclusion from the first major 
participant test. Among other aspects, this rule makes use of an 
``economically appropriate'' standard, and sets forth exclusions for 
security-based swap positions that have a speculative or trading 
purpose.
    As discussed above, we carefully consider alternative approaches 
suggested by some commenters, including the suggestion that the 
definition should encompass positions that hedge speculative or trading 
positions and the suggestion that the definition should incorporate a 
``congruence'' standard.\1548\ We concluded, however, that these 
approaches are inconsistent with the focus of the statutory text, which 
is on ``commercial risk,'' and in adopting this definition we have 
sought to set forth criteria that reasonably distinguish hedging 
positions from other positions. We believe that the approach we are 
adopting, which seeks to exclude positions that hedge commercial risk 
without also excluding other types of positions, is necessary and 
appropriate in light of the statute.\1549\
---------------------------------------------------------------------------

    \1548\ See parts IV.C.5.a and IV.C.5.b, supra (discussing 
rationale for excluding positions hedging speculative and trading 
positions from the definition).
    \1549\ See parts IV.C.3 and IV.C.5, supra.
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    Some market participants may be expected to incur costs in 
connection with determining whether certain security-based swap 
positions fall within this hedging exclusion.\1550\ Any such costs of 
analyzing the status of particular security-based swaps as a hedge of 
commercial risk would reflect the unique character of individual 
positions and the business purpose associated with the position. Such 
costs may be particularly relevant for security-based swaps of a more 
complex nature, or for security-based swaps that introduce some degree 
of basis risk in connection with the hedge. Because of the facts-and-
circumstances nature of this analysis,\1551\ we believe that some 
entities may seek the opinion of legal counsel as to whether certain 
transactions qualify for the commercial hedging exclusion at the time 
they conduct their initial analysis, and these costs would likely be 
encompassed within the estimated costs of legal services related to the 
major participant definition.\1552\
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    \1550\ We have incorporated provisions into the final rule 
designed to provide guidance to market participants as to which 
types of security-based swap positions could be expected to fall 
within this exclusion. This release also provides further guidance 
as to the scope of the exclusion.
    \1551\ The transaction-related costs of making a hedging 
determination would apply only to entities with security-based swap 
positions that are near to or exceed the substantial position 
threshold prior to taking advantage of the hedging exclusion. This 
may be expected to mitigate costs associated with making this 
determination.
    \1552\ Separately, the proposed rule defining this term would 
have included certain documentation and assessment conditions that 
commenters stated could lead to significant costs. Commenters 
expressed concerns regarding the application of these conditions and 
the associated costs. As discussed previously in this release, we 
have determined not to include these conditions in the final rule. 
See part IV.C.5.d, supra.
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C. Definitions of ``Financial Entity'' and ``Highly Leveraged''

    Exchange Act rule 3a67-6 defines the term ``financial entity'' for 
purposes of the third major participant test. This definition is 
largely consistent with the statutory ``financial entity'' definition 
used in Title VII's exception from mandatory clearing for commercial 
end-users.\1553\ However, in response to commenter concerns, the final 
rules exclude centralized hedging facilities from the ``financial 
entity'' definition (in a way that itself is consistent with that Title 
VII hedging exception).\1554\

[[Page 30738]]

Although particular market participants may incur costs in connection 
with determining whether they fall within the ``financial entity'' 
definition, we believe that such costs would be minimal in light of the 
objective nature of the definition, and its consistency with the use of 
the term elsewhere in Title VII. We also recognize that entities may 
seek the opinion of legal counsel as to whether the entity falls within 
the scope of this ``financial entity'' definition, but believe that 
these costs would likely be encompassed within the estimated costs of 
legal services related to the major participant definition.
---------------------------------------------------------------------------

    \1553\ See Exchange Act section 3C(g).
    \1554\ In addition, we considered, but do not incorporate, some 
commenters' suggestion that ``financial entity'' be defined more 
narrowly, such as by excluding employee benefit plans. See part 
IV.F.3.a, supra, (discussing rationale for final rule defining 
``financial entity'').
---------------------------------------------------------------------------

    Exchange Act rule 3a67-7 defines the term ``highly leveraged,'' 
also for purposes of the third statutory major participant test. After 
considering commenters' views, the final rule defines that term based 
on a 12 to 1 leverage ratio, as discussed in greater detail above. In 
adopting this leverage ratio, we also modify the proposed method of 
calculating leverage in certain respects,\1555\ but conclude that it 
would not be appropriate to provide special methodologies for insurers 
to measure leverage.\1556\ It is possible that certain market 
participants will incur costs in connection with determining whether 
they are ``highly leveraged'' for purposes of the major participant 
definitions. In part, we believe that those costs are mitigated by the 
fact that the final rules identify ``highly leveraged'' entities based 
on a ratio of liabilities to equity, which we expect are simpler for 
entities to implement than alternative methods for measuring leverage, 
such as risk-adjusted methods.
---------------------------------------------------------------------------

    \1555\ See part IV.F.3.b, supra (addressing leverage ratio 
calculation for certain employee benefit plans).
    \1556\ See note 1107, supra (providing special rules related to 
the calculation of leverage for certain employee benefit plans).
---------------------------------------------------------------------------

    We recognize that the unavailability of an alternative method of 
calculation for insurers may have the effect of increasing certain 
insurers' cost of calculating leverage for purposes of determining 
whether they fall within the major participant definition, to the 
extent that insurers have security-based swap positions that are close 
enough to the relevant thresholds that they have to perform the 
required calculations.\1557\ We believe, however, that a uniform 
approach to defining ``highly leveraged'' is appropriate here given 
that the large insurance firms that are most likely to meet the major 
participant definition would be expected already to use GAAP in 
preparing their financial statements. This should mitigate any 
additional costs arising from the absence of an alternative calculation 
method for insurers.
---------------------------------------------------------------------------

    \1557\ We note that many large insurers of the type that 
maintain security-based swap positions in an amount that would 
require them to perform the major participant calculations may be 
publicly traded companies, in which case they would already 
calculate their financial statements according to GAAP for purposes 
of public disclosure, and thus would not incur additional costs due 
to our decision not provide special methodologies for insurers to 
calculate their leverage. We also expect that the concerns of many 
smaller insurers that are not publicly traded and thus may not use 
GAAP will be addressed by our inclusion of the safe harbor for major 
participant calculations.
    In addition, publicly available information regarding insurer 
use of derivatives suggests that the potential costs to insurers 
arising from the definition of ``major security-based swap 
participant'' may be negligible. As of the end of 2010, U.S. 
insurers as a whole had enter into roughly $33.5 billion in notional 
amount of credit default swaps (not distinguishing between credit 
default swaps that fall within the ``security-based swap'' 
definition and those that are ``swaps''). See National Association 
of Insurance Commissioners, ``Insights into the Insurance Industry's 
Derivatives Exposure'' (available at https://www.naic.org/capital_markets_archive/110610.htm) (stating that life insurers had entered 
into roughly $27.1 billion of that amount, and that property and 
casualty insurers had entered into roughly $6.4 billion of that 
amount). Even if those positions were concentrated within single 
entity, they would not necessarily lead that entity to exceed the 
thresholds that could cause it to be a major participant, see note 
914, supra, suggesting that, given the likely distribution of these 
positions across a significant number of insurers, few or no 
insurers may have exposures that approach the thresholds.
---------------------------------------------------------------------------

D. Limited Designations of Major Participants

    Exchange Act rule 3a67-1 in part implements the portion of the 
``major security-based swap participant'' definition that provides for 
limited purpose registration of major participants. The rule sets forth 
a presumption that a person that acts as a major security-based swap 
participant in general will be deemed to be a major participant with 
regard to all of its security-based swaps, unless the SEC limits its 
designation.
    In adopting this rule we have considered the alternative, suggested 
by some commenters, of permitting persons to more broadly take 
advantage of limited major participant designations.\1558\ Our decision 
to use this presumption takes into account the difficulty of separating 
a major participant's positions taken under its limited purpose 
designation from other of its positions for purposes of compliance, and 
the challenges of applying major participant regulatory requirements to 
only a portion of the entity's security-based swap activities. The 
presumption further reflects the statutory definition's discretionary 
language in connection with the potential for limited designations, and 
the need for persons subject to limited designations to be able to 
comply with the statutory and regulatory requirements applicable to 
major participants.\1559\
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    \1558\ Such an approach may be expected to lower the cumulative 
costs that major participants would incur in determining whether to 
seek a limited designation. For example, a default presumption in 
favor of the availability of limited designations may be expected to 
reduce the costs that certain entities would incur to determine that 
they could take advantage of limited designation relief, and thus 
reduce the costs associated with an entity determining whether it 
qualifies for such relief, such as the costs of hiring outside legal 
counsel to undertake this analysis to determine that they could take 
advantage a limited designation relief. A default presumption in 
favor of limited designations also would be expected to reduce costs 
in connection with the registration process for entities seeking 
limited designation status, as discussed above. See part 
VIII.A.2.d.ii.A, supra.
    \1559\ See part IV.N.3, supra (discussing limited designation 
principles applicable to major participants). We note that the 
discussion of limited designation of ``swap dealers'' under the CEA 
generally seeks to quantify the costs associated with applications 
for limited designations. However, we believe that the costs of 
applying for a limited designation are dependent upon the 
application process for this type of registration category. As noted 
previously, the SEC expects to address the limited designation 
application process for major security-based swap participants in 
separate rulemakings. See id. As such, we believe that the costs 
associated with major security-based swap participant limited 
designation applications under the Exchange Act are more 
appropriately addressed in the context of that separate rulemaking.
---------------------------------------------------------------------------

    Certain persons who satisfy the major participant definition may 
incur costs in determining whether to seek a limited designation. 
Consistent with the discussion above, in general we believe that such 
costs would affect no more than 12 entities.\1560\ These costs could, 
however, vary significantly depending on the structure or other 
characteristics of an entity's business.
---------------------------------------------------------------------------

    \1560\ See note 1529, supra.
---------------------------------------------------------------------------

E. Exclusion of Inter-Affiliate Security-Based Swaps

    Exchange Act rule 3a67-3 provides that security-based swap 
transactions between majority-owned affiliates will be excluded for 
purposes of the substantial position test.\1561\ We have concluded that 
majority ownership represents an alignment of interests appropriate to 
justify an inter-affiliate exclusion.\1562\ Moreover, we note that a 
majority-ownership test should, given its objective nature, impose 
fewer assessment costs on market participants than a more subjective 
common control test.
---------------------------------------------------------------------------

    \1561\ This exclusion also applies to the ``substantial 
counterparty exposure'' analysis.
    \1562\ See part IV.G.2, supra (discussing rationale for the 
approach we are adopting, and considering alternative approaches).
---------------------------------------------------------------------------

    Some market entities may incur costs in connection with determining 
whether

[[Page 30739]]

particular security-based swap positions may be excluded from the major 
participant analysis by virtue of the inter-affiliate exclusion. It is 
possible that such costs could be incurred by any of the approximately 
12 entities that we believe reasonably may have to engage in the major 
participant calculations.\1563\ We believe that any costs arising out 
of such an analysis would be encompassed within the $30,000 estimated 
for legal services related to the major participant definition as a 
whole.
---------------------------------------------------------------------------

    \1563\ The data underlying this assessment already excludes 
certain inter-affiliate credit default swaps.
---------------------------------------------------------------------------

F. Timing Requirements, Reevaluation Period and Termination of Status

    Exchange Act rule 3a67-8 specifies the time at which an entity that 
satisfies the major participant tests would be deemed to be a ``major 
security-based swap participant,'' and also addresses the time at which 
an entity's status as a major security-based swap participant would be 
terminated. In adopting this rule we have considered alternatives that 
would lead to slower entry and faster exit from major participant 
status, and we believe that the approach that we are adopting provides 
a reasonable amount of time for registration based on the proposed 
registration process, will appropriately help to avoid applying major 
participant requirements to entities that meet the major participant 
criteria for only a short time due to unusual activity, and will avoid 
the prospect of persons moving in and out of major participant status 
overly frequently.\1564\
---------------------------------------------------------------------------

    \1564\ See part IV.L.3, supra (discussing rationale for the 
final rules addressing timing, reevaluation and termination).
---------------------------------------------------------------------------

    Persons falling within the major participant definitions will incur 
costs in connection with the registration process,\1565\ and it is 
possible that alternative timing approaches could allow such persons to 
register at a more deliberate pace, potentially reducing the associated 
costs.\1566\ Such cost differences may affect the up-to-twelve entities 
that we believe reasonably may have to engage in the major participant 
calculations. Moreover, altering the timing requirements may not 
significantly decrease costs associated with registration because in 
all cases we would expect the same preparatory actions to be taken, and 
we believe that the final rules provide sufficient time for entities to 
perform the activities necessary for compliance.\1567\
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    \1565\ Registration Proposing Release, 76 FR at 65814-65818.
    \1566\ For example, it is possible that an entity may perceive 
the steps associated with the registration process as requiring it 
to take additional steps to complete the registration process within 
the time frame we are adopting, whereas a longer time period could 
have enabled such an entity to avoid those costs.
    \1567\ Specific costs associated with the registration process 
will be addressed by the SEC in final rules related to the 
registration of major security-based swap participants that have not 
yet been adopted. However, we expect any additional costs arising 
from the timing provisions of this rule to be insignificant.
---------------------------------------------------------------------------

4. Consideration of Burden on Competition, and Promotion of Efficiency, 
Competition, and Capital Formation
    Section 3(f) of the Exchange Act requires the SEC, whenever it 
engages in rulemaking and is required to consider or determine whether 
an action is necessary or appropriate in the public interest, to 
consider, in addition to the protection of investors, whether the 
action would promote efficiency, competition, and capital 
formation.\1568\ In addition, section 23(a)(2) of the Exchange Act 
\1569\ requires the SEC, when adopting rules under the Exchange Act, to 
consider the impact such rules would have on competition. Section 
23(a)(2) of the Exchange Act also prohibits the SEC from adopting any 
rule that would impose a burden on competition not necessary or 
appropriate in furtherance of the purposes of the Exchange Act.
---------------------------------------------------------------------------

    \1568\ 15 U.S.C. 78c(f).
    \1569\ 15 U.S.C. 78w(a)(2).
---------------------------------------------------------------------------

    We are adopting these rules and interpretive guidance pursuant to 
authority under section 712(d) of the Dodd-Frank Act, which requires 
the Commissions to further define several terms, including ``security-
based swap dealer'' and ``major security-based swap participant.'' 
\1570\ In the Proposing Release, we stated that we preliminarily 
believed that the proposed Exchange Act rules would not result in any 
burden on competition that is not necessary or appropriate in 
furtherance of the purposes of the Act, that they would not 
significantly affect capital formation, and that they would improve 
efficiency. We requested comment on each of these issues, and certain 
commenters raised concerns that overbroad definitions would lead to 
undue competitive impacts.\1571\
---------------------------------------------------------------------------

    \1570\ The SEC is also acting pursuant to its rulemaking 
authority provided by Exchange Act sections 3 and 23(a).
    \1571\ See, e.g., letters from Representatives Bachus and Lucas 
(``Casting an overly-broad net in defining these terms could force 
some smaller participants to leave the marketplace as a result of 
increased costs, or eliminate certain types of contracts used for 
hedging.''), SIFMA--Regional Dealers (stating that the proposed de 
minimis exception ``is unnecessarily narrow, will discourage smaller 
dealers from competing in the market and will limit the availability 
of efficient and cost-effective intermediation services to small- 
and medium-sized organizations'') and Midsize Banks (stating that a 
reduction in small dealers due to an overly narrow de minimis 
exception would ``curtail economic development going forward and 
would leave end-users less options for hedging risks with community 
and smaller regional dealers'').
---------------------------------------------------------------------------

    In adopting these final rules, we recognize that the most 
significant impact of the dealer and major participant definitions will 
derive from those definitions' role in implementing Title VII, 
particularly given the significant impacts that Title VII will have on 
the security-based swap market. Many of these impacts may be expected 
to be positive, because Title VII imposes, among other measures, 
requirements that may be expected to promote safety and soundness, 
transparency, and competition within the security-based swap market. We 
recognize, however, that regulation also can pose costs that have 
negative impacts on the markets.
    In adopting these definitional rules and interpretations, moreover, 
we have sought to fairly reflect the statutory definitions and their 
underlying intent. Given the link between these definitional rules and 
interpretations and the Title VII framework, the scope of the 
definitions will affect the ultimate regulatory benefits and costs that 
will accompany the full implementation of Title VII. Definitions that 
capture more entities will tend to promote the Title VII benefits, but 
will also risk increasing the accompanying costs. Definitions that 
capture fewer entities may be expected to lead to the converse result.
a. Competitive Impacts
    As noted above, the SEC is required to consider the effect of these 
rules and interpretations on competition. The SEC also is prohibited 
from adopting any rule that would impose a burden on competition that 
is not necessary or appropriate in furtherance of the purposes of the 
Exchange Act. Because these definitional rules and interpretations will 
help determine which entities within the market are subject to the 
Title VII requirements that govern dealers and major participants, they 
may also affect competition within the security-based swap market.
    In enacting Title VII, Congress set forth a regulatory framework 
for OTC derivatives; security-based swaps represent one segment of the 
overall OTC derivatives market. Within the security-based swap market, 
dealers compete for business from counterparties, while non-dealers 
that participate in the market use security-based swaps for purposes 
that can

[[Page 30740]]

include speculation and hedging. To date, security-based swaps 
primarily have traded in the over-the-counter market, and have not been 
subject to comprehensive regulation in the U.S. We understand that 
entities engaged in dealing activity within this market facilitate the 
vast majority of security-based swap transactions.\1572\ Dealing 
activity within the market also is highly concentrated.\1573\ This 
concentration in large part appears to reflect the fact that larger 
entities possess competitive advantages in engaging in over-the-counter 
security-based swap dealing activities, particularly with regard to 
having sufficient financial resources to provide potential 
counterparties with adequate assurances of financial performance.\1574\ 
As such, it is reasonable to conclude that there are high barriers to 
entry in connection with security-based swap dealing activity.\1575\
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    \1572\ Data from the credit default swap trade information 
warehouse operated by DTCC indicates that as of the week ending 
October 7, 2011, single-name credit default swaps involving two 
counterparties that are not dealers (as identified by DTCC) 
constitutes roughly 0.2 percent of the notional amount of all open 
positions involving single-name credit default swaps (amounting to 
$24.6 billion gross notional out of a total of $15.2 trillion gross 
notional). Conversely, single-name credit default swaps involving 
two dealers (as identified by DTCC) constitute roughly 74.2 percent 
of the total notional amount (amounting to $11.3 trillion gross 
notional out of the $15.2 trillion total). See https://www.dtcc.com/products/derivserv/data/index.php (as of October 7, 2011). We have 
no reason to believe that the market for other types of security-
based swaps exhibits different amounts of concentration with regard 
to dealer activity.
    \1573\ As discussed above in the context of the de minimis 
exception to the security-based swap dealer definition, analysis of 
available data shows that, under any metric used to screen for 
dealers in our CDS Data Analysis, over 90 percent of activity in 
single-name credit default swaps among entities identified as 
dealers is attributable to the fourteen or fifteen largest of those 
entities. We have no reason to believe that the concentration of 
dealing activity involving other types of security-based swaps 
significantly differs from the concentration of dealers in the 
single-name credit default swap market.
    \1574\ See Pirrong, note 487, supra, at 17-18 (noting that 
counterparties seek to reduce risk of default by engaging in credit 
derivative transactions with well capitalized firms).
    \1575\ See id., at 18-19 (noting lack of success among new 
entrants into derivatives dealing market due to perception that AAA 
rating for subsidiary is less desirable than a slightly lower rating 
for a larger entity, and suggesting that there are ``economies of 
scale in bearing default risk'' that may induce ``substantial 
concentration in dealer activities'').
---------------------------------------------------------------------------

    At the same time, commenters have noted that some entities engage 
in smaller volumes of security-based swap dealing activity. Some small 
and mid-size banks, for example, routinely provide such services 
involving relatively small notional amounts to their customers.\1576\ 
Although these relatively smaller dealers in general may not compete 
directly with the largest dealers (because they service a different 
segment of the market), they may be expected to play a role in helping 
certain types of customers (such as customers with a relatively smaller 
need for security-based swaps) enter into security-based swaps, thus 
promoting the availability of these products.
---------------------------------------------------------------------------

    \1576\ See letter from FSR I.
---------------------------------------------------------------------------

    Fundamentally, in considering the competitive impacts associated 
with Title VII regulation of dealers and major participants--and hence 
the competitive impacts associated with the dealer and major 
participant definitions--we recognize that one consequence of the 
current concentrated market structure \1577\ is the potential for risk 
spillovers and systemic risk, which can occur when the financial sector 
as a whole (or certain key segments) becomes undercapitalized. Risk 
spillovers emerge when losses and financial distress at one firm lead 
to losses and financial distress for the financial sector as a whole, 
either through direct counterparty relationships or the deterioration 
of asset values. As financial distress spreads, the aggregate financial 
system may become undercapitalized, hindering its ability to provide 
financial intermediation services. If firms do not internalize this 
aggregate cost, the financial system may end up holding more risk than 
its aggregate capital can manage.
---------------------------------------------------------------------------

    \1577\ See, e.g., notes 478 and 485, supra, and accompanying 
text.
---------------------------------------------------------------------------

    In enacting Title VII, Congress set forth a framework that will 
impose new costs and regulatory burdens, including capital, margin, and 
registration requirements, on persons who act as security-based swap 
dealers, and on persons whose security-based swap positions are large 
enough to cause them to be major security-based swap participants. 
While the substantive rules associated with capital, margin, and 
registration requirements have yet to be finalized, we have sought to 
set the dealer and major participant definitions in such a way as to 
impose the substantive rules on those entities most likely to 
contribute to an aggregate capital shortfall without imposing 
unnecessary burdens on those who do not pose similar risks to the 
market.\1578\ It is reasonable to expect that it is the largest 
security-based swap entities that are more likely to contribute to an 
aggregate capital shortfall than smaller participants, as more risk is 
likely to be concentrated within these entities.\1579\
---------------------------------------------------------------------------

    \1578\ We expect that implementation of Title VII will provide 
both the SEC and market participants with more information about the 
business of dealers and major participants, the characteristics of 
positions they and other market participants hold, the structure of 
the market, and how each of these have changed under the Title VII 
framework. For that reason the SEC has directed the staff to report 
to the Commission on all aspects of the dealer and major participant 
definitions. See part V, supra.
    \1579\ See Acharya, Pedersen, Philippon, and Richardson, 
Measuring Systemic Risk (May 2010) (available at https://vlab.stern.nyu.edu/public/static/SR-v3.pdf) (working paper that 
derives an empirical measure of a financial entity's expected 
contribution to an aggregate capital shortfall that scales with the 
size of the institution, and that shows using historical data that 
their measure predicted the risks that emerged during the recent 
financial crisis).
---------------------------------------------------------------------------

    As discussed above, persons who fall within the statutory 
definitions of security-based swap dealer and major security-based swap 
participant will incur a range of one-time costs and ongoing costs by 
virtue of that status.\1580\ Also, as discussed above, market 
participants may incur costs in connection with determining whether 
their security-based swap activities or positions will cause them to be 
dealers or major participants.\1581\ To the extent the costs associated 
with these statutorily mandated requirements are relatively fixed or 
large enough, they may negatively affect competition within the market. 
This may, for example, lead smaller dealers or entities for whom 
dealing is not a core business to exit the market, which could cause 
smaller customers to have less access to the market or to incur higher 
costs in accessing the market. Such costs might also deter the entry of 
new firms into the market. If sufficiently high, these costs of 
compliance may increase concentration among dealers. We also recognize 
that some market participants may be expected to incur costs in 
connection with determining their status as a dealer or major 
participant, but such costs can be expected to be significantly less 
than the costs associated with the various rules applicable to dealers 
or major participants.
---------------------------------------------------------------------------

    \1580\ As discussed above, for example, security-based swap 
dealers and major security-based swap participants will have to meet 
minimum capital and margin requirements, maintain specified business 
and transaction records and adhere to certain standards of business 
conduct, along with other obligations. See, e.g., notes 178 to 180, 
supra.
    \1581\ See part VIII.A.3, supra.
---------------------------------------------------------------------------

    Conversely, certain aspects of Title VII may enhance competition in 
the market. For example, the business conduct and other requirements of 
Title VII may enhance the availability of information to market 
participants. Measures designed to equalize access to information 
through disclosure requirements should promote participation, which may 
intensify price competition among dealers, and thus

[[Page 30741]]

may increase participation in the security-based swap market. Other 
aspects of Title VII, such as rules promoting access of dealers to 
central clearing facilities, also may be expected to enhance 
competition in the market.
i. Security-Based Swap Dealer Definition
    Persons who are deemed to be dealers may be expected to incur costs 
in connection with the substantive rules applicable to dealers, and to 
incur comparatively smaller costs in connection with determining 
whether they fall within the dealer definition. We cannot rule out the 
possibility that the prospects of these aggregate costs might deter new 
entrants from engaging in security-based swap activity that potentially 
could lead them to be dealers.\1582\ We also cannot rule out the 
possibility that the imposition of those costs could lead some persons 
who currently engage in dealing activity involving security-based swaps 
to lessen or cease that activity. Those effects--if they were to 
occur--would be expected to reduce competition in the market. 
Conversely, the application of the Title VII requirements applicable to 
dealers, such as, for example, the business conduct requirements 
related to disclosures to counterparties, may be expected to enhance 
the availability of information to market participants. The resulting 
reduction in information asymmetries may be expected to promote 
participation, and therefore competition, in the market. Accordingly, 
the scope of the rules and interpretations defining security-based swap 
dealer, including the scope of the de minimis exception to the dealer 
definition, can be expected to affect competition in the market in a 
variety of ways.\1583\
---------------------------------------------------------------------------

    \1582\ We do think it unlikely that the costs associated with 
determining an entity's status, considered on their own, would have 
any measurable effect on competition. As noted above, we estimate 
that the cost of making this determination to be $30,000 at most, 
and likely significantly less for most entities. See note 1537, 
supra. In other words, the costs would amount to, at most, 0.1 
percent of the de minimis threshold, and it is likely that few firms 
would feel compelled to conduct this analysis until their dealing 
volume approached the de minimis threshold.
    \1583\ At the same time, it is possible that these additional 
costs associated with dealer regulation will be comparatively small 
compared to the existing barriers to entry in the market 
(particularly the need for resources to provide counterparties with 
sufficient assurance of performance). Cf. Pirrong, note 487, supra, 
at 18-19 (noting that firms with smaller balance sheets, relative to 
largest dealers, ``have largely failed to make major inroads as 
derivatives dealers despite concerted efforts to do so''). It thus 
is possible the incremental costs associated with dealer regulation 
may not be of the magnitude to cause persons who currently engage in 
security-based swap dealing activity to exit the market.
---------------------------------------------------------------------------

    As discussed above, in rule 3a71-1 we have codified the statutory 
definition of security-based swap dealer and provided guidance to 
interpret the contours of this definition in the context of the dealer-
trader distinction. After considering commenters' views, we believe 
that this guidance interprets the statute to give effect to the four 
dealer tests and the ``regular business'' exclusion in a way that 
reflects the features of the security-based swap market. This use of 
the dealer-trader distinction--which parallels the analysis that 
securities market participants currently use in the context of the 
Exchange Act's ``dealer'' definition--also should help reduce the 
potential competitive effects associated with the costs that market 
participants incur to analyze their possible status as a dealer by 
imposing fewer costs than a more novel approach.\1584\
---------------------------------------------------------------------------

    \1584\ As noted above, we have declined to adopt per se 
exclusions or overly simple tests, even though they might impose 
fewer assessment costs on market participants conducting the dealer 
analysis because we do not believe that such exclusions or tests 
would capture the full range of entities that should be regulated as 
dealers under Title VII. Moreover, the nature of the tests being 
adopted are straightforward to implement and rely on information 
that already should be readily available to market participants.
---------------------------------------------------------------------------

    Moreover, as discussed above, in rule 3a71-2 we have adopted a de 
minimis test and thresholds that will impose the costs associated with 
dealer regulation upon entities that engage in the bulk of dealing 
activity in the market, without imposing those costs upon persons who 
account for a small portion of dealing activity (and for which dealer 
regulation may be accompanied by comparatively modest benefits). We 
believe this will mitigate some of the potential competitive burdens 
associated with dealer status that could fall on entities engaged in a 
smaller amount of dealing activity, without leaving an undue amount of 
dealing activity outside of the ambit of dealer regulation. As 
discussed in detail above, we believe we have set the threshold in a 
way that appropriately considers this risk along with the benefits 
afforded to smaller entities by a higher threshold. Furthermore, after 
considering commenters' views, we believe that this approach strikes a 
balance that appropriately will implement the transparency, risk, and 
customer and counterparty protection goals of Title VII. This approach, 
including the general use of a $3 billion threshold, also can 
facilitate the initial entrance of dealers into the market, and permit 
persons to engage in limited dealing activity that helps smaller 
entities participate in the market. While we recognize that the lower 
threshold associated with dealing activity involving ``special 
entities'' has the potential to reduce competition to provide dealing 
services to those entities, we believe that this lower threshold is 
appropriate to preserve the protections that Title VII affords to those 
entities.
    In rule 3a71-1, we also have set forth a presumption that a person 
that acts as a dealer in the security-based swap market will be a 
dealer with regard to all of its security-based swaps. We recognize 
that this presumption may have competitive impacts: on the one hand, by 
imposing regulatory costs on a wider range of activities, certain 
entities concentrated in discrete security-based swap segments may face 
higher costs than they might without the presumption; on the other 
hand, the presumption suggests a single, uniform baseline for 
competition across dealers. While these impacts may bear out in a 
number of ways, we believe that the presumption is appropriate in light 
of the statutory language and the need to help ensure that security-
based swap dealers comply with all applicable legal requirements.
    In rule 3a71-1, we also have provided an exclusion from dealer 
status in connection with security-based swaps involving majority-owned 
affiliated counterparties. To the extent that the scope of this 
exclusion may have competitive impacts--such as in connection with 
dealing activity involving affiliates that are not majority-owned, and 
that hence cannot take advantage of the exclusion--we believe that the 
exclusion appropriately applies the Title VII dealer requirements in a 
way that reflects the economic reality of swaps among affiliates, which 
generally does not raise the customer protection or market risk 
concerns addressed by Title VII.
    In sum, to the extent that the application of Title VII dealer 
requirements to certain persons were to pose a net burden on 
competition in the security-based swap market, we believe those effects 
would be a necessary or appropriate consequence of implementing the 
statutory definitions consistent with the purposes of the Title VII 
amendments to the Exchange Act.
ii. Major Security-Based Swap Participant Definition
    As we discuss above, we have estimated that entities approaching 
the level of exposure required to be a major participant may incur 
certain costs in connection with analyzing their

[[Page 30742]]

status.\1585\ Given the size of the exposures and notional amounts 
required to trigger the major participant test (e.g., $1 billion in 
daily average current uncollateralized exposure in a major category), 
we do not believe that these costs of assessment would materially 
impact the competitive role played in the security-based swap market by 
persons who have positions large enough that they potentially may be 
major participants.
---------------------------------------------------------------------------

    \1585\ See text accompanying note 1532, supra (estimating 
assessment costs as roughly $44,000 in the first year, and $15,268 
in subsequent years).
---------------------------------------------------------------------------

    We expect that the programmatic costs associated with the rules 
applicable to major participants will be more significant. Presumably, 
a market participant will weigh the costs of complying with the rules 
against the benefit it expects from maintaining security-based swap 
positions of a magnitude that would require registration as a major 
participant, in deciding whether to continue to maintain such 
positions. We cannot rule out the possibility that the prospect of 
those costs could deter persons from maintaining security-based swap 
positions of such a magnitude, and that this may reduce competition in 
the market.\1586\
---------------------------------------------------------------------------

    \1586\ The extent of such possible deterrence is mitigated by 
the fact that major participant status is a prospect only for those 
persons with very large security-based swap positions.
---------------------------------------------------------------------------

    As discussed above, Exchange Act rules 3a67-1 through 3a67-9 and 
the accompanying interpretations reflect choices that we believe are 
reasonably designed to satisfy the risk criteria set forth in the major 
participant definition.\1587\ In reaching these conclusions we 
considered commenters' views on a variety of issues, including 
suggested alternative approaches that would lessen the likelihood of 
particular entities being deemed to be major participants (e.g., 
alternative tests, higher thresholds, a broader hedging exclusion, and 
a higher leverage test). We believe that the choices reflected in the 
final rules and interpretations are necessary or appropriate in 
furtherance of the purposes of the Exchange Act and reasonably reflect 
the criteria set forth by the statutory definition.
---------------------------------------------------------------------------

    \1587\ See part VIII.A.2, supra.
---------------------------------------------------------------------------

b. Efficiency and Capital Formation
    As noted above, in adopting these final rules and interpretations 
we also are required to consider whether these actions would promote 
efficiency and capital formation.
    In significant part, the effect of these rules on efficiency and 
capital formation are linked to the effect of these rules on 
competition. For example, markets that are competitive, with fair and 
transparent pricing and equal access to security-based swaps, may be 
expected to promote the efficient allocation of capital. Similarly, 
definitional rules that promote, or do not unduly restrict, competition 
can be accompanied by regulatory benefits that minimize the risk of 
market failure and thus promote efficiency within the market. Such 
competitive markets would increase the efficiency by which market 
participants could transact in security-based swaps for speculative, 
trading, hedging and other purposes.
    Definitional rules and interpretations of an appropriate scope also 
can be expected to promote capital formation by facilitating the 
appropriate use of security-based swaps for hedging purposes, and thus 
by contributing to liquidity and reducing costs in connection with the 
issuance of equity and debt securities. In the context of credit 
default swaps based on loans, moreover, definitional rules and 
interpretations of an appropriate scope can be expected to promote 
capital formation by facilitating loans to businesses that may not 
otherwise be made absent such a swap. Since credit risk is correlated, 
lenders may find it desirable to hedge credit risks on their loan 
portfolios by purchasing protection through single-name or index credit 
default swaps. Even though there is basis risk in this type of trade, 
it should be particularly effective at reducing exposure to systemic 
credit events. More generally, security-based swaps can be expected to 
promote risk transfer to persons better positioned and more willing to 
bear certain risks (e.g., the transfer of risks from hedgers to 
speculators).
    Conversely, definitional rules that are accompanied by too many 
competitive burdens pose the risk of imposing excessive costs of 
regulation that could deter the efficient allocation of capital to 
security-based swaps. Such rules also may be expected to reduce the 
capital formation benefits that otherwise would be associated with 
security-based swaps. Definitional rules of an inappropriate scope 
further may reduce the availability of security-based swaps and thus 
direct market participants not to seek to address certain business 
needs, or to use less effective financial instruments to meet their 
business needs. For example, major participant thresholds that broadly 
capture much of the security-based swap market would discourage certain 
entities from participating in the market, particularly if the 
regulatory costs for major participants are high. This could make it 
difficult for hedgers to find a counterparty, which would make it more 
expensive to hedge risks and hinder efficient risk-sharing in the 
broader economy. In addition, definitional rules that pose the risk of 
creating a market that contains an undue amount of unregulated dealing 
activity--as may be the result of a de minimis threshold that is too 
high--would lead to disparate treatment of dealers and could undermine 
the benefits of Title VII.
    The rules and interpretations that we are adopting in connection 
with the dealer and major participant definitions are designed to apply 
the statutory definitions in a way that reasonably effects the goals of 
Title VII. For example, the rule implementing the de minimis exception 
to the dealer definition is designed to focus the application of the 
dealer definition in a way that implements the benefits associated with 
the regulation of security-based swap dealers under Title VII, without 
imposing the costs associated with those regulations on those entities 
responsible for only a small portion of total dealing activity. In 
addition, the rules and interpretations in connection with the major 
participant definition are geared to focus major participant regulation 
on entities whose security-based swap positions pose a particularly 
high degree of credit risk to the market, without applying those 
regulations on persons who pose a lesser degree of risk.
    In conclusion, we believe that the rules and interpretations may be 
expected to promote efficiency in the allocation of capital to 
security-based swaps, and to promote the capital formation benefits of 
security-based swaps, by helping to focus the costs and burdens of the 
regulation of dealers and major participants under Title VII upon those 
persons for whom the imposition of those costs are most appropriate 
given their overall activity and positions in the security-based swap 
market. The rules and interpretations similarly may be expected to 
apply certain Title VII requirements (e.g., counterparty disclosure 
requirements that can be expected to reduce information asymmetries) to 
those entities that engage in activities or maintain positions in the 
security-based swap market such that their compliance with these 
requirements may promote the efficiency and capital allocation benefits 
associated with such regulation.

B. Paperwork Reduction Act Analysis

    The Proposing Release addressed a potential new ``collection of 
information'' requirement, within the

[[Page 30743]]

meaning of the Paperwork Reduction Act of 1995,\1588\ because the 
proposed definition of the term ``hedging or mitigating commercial 
risk'' included documentation and assessment conditions.
---------------------------------------------------------------------------

    \1588\ 44 U.S.C. 3501.
---------------------------------------------------------------------------

    As discussed above, final rule defining ``hedging or mitigating 
commercial risk'' does not contain those proposed documentation and 
assessment conditions. Accordingly, the Paperwork Reduction Act does 
not apply to these definitions.\1589\
---------------------------------------------------------------------------

    \1589\ Consistent with the discussion above, we recognize that 
the substantive rules applicable to dealers and major participants 
may contain collections of information, and that these definitions 
will affect which entities are subject to those collections of 
information. We believe that these Paperwork Reduction Act issues 
are more appropriately addressed in connection with the substantive 
rules applicable to dealers and major participants.
---------------------------------------------------------------------------

C. Regulatory Flexibility Act Certification

    The Regulatory Flexibility Act (``RFA'') \1590\ requires Federal 
agencies, in promulgating rules, to consider the impact of those rules 
on small entities. Section 603(a) \1591\ of the Administrative 
Procedure Act,\1592\ as amended by the RFA, generally requires the SEC 
to undertake a regulatory flexibility analysis of all proposed rules, 
or proposed rule amendments, to determine the impact of such rulemaking 
on ``small entities.'' \1593\ Section 605(b) of the RFA provides that 
this requirement shall not apply to any proposed rule or proposed rule 
amendment, which if adopted, would not have a significant economic 
impact on a substantial number of small entities.\1594\
---------------------------------------------------------------------------

    \1590\ 5 U.S.C. 601 et seq.
    \1591\ 5 U.S.C. 603(a).
    \1592\ 5 U.S.C. 551 et seq.
    \1593\ Although Section 601(b) of the RFA defines the term 
``small entity,'' the statute permits the Commissions to formulate 
their own definitions. The SEC has adopted definitions for the term 
small entity for the purposes of SEC rulemaking in accordance with 
the RFA. Those definitions, as relevant to this proposed rulemaking, 
are set forth in Rule 0-10, 17 CFR 240.0-10. See Securities Exchange 
Act Release No. 18451 (Jan. 28, 1982), 47 FR 5215 (Feb. 4, 1982) 
(File No. AS-305).
    \1594\ See 5 U.S.C. 605(b).
---------------------------------------------------------------------------

    For purposes of SEC rulemaking in connection with the RFA, a small 
entity includes: (i) When used with reference to an ``issuer'' or a 
``person,'' other than an investment company, an ``issuer'' or 
``person'' that, on the last day of its most recent fiscal year, had 
total assets of $5 million or less,\1595\ or (ii) a broker-dealer with 
total capital (net worth plus subordinated liabilities) of less than 
$500,000 on the date in the prior fiscal year as of which its audited 
financial statements were prepared pursuant to Rule 17a-5(d) under the 
Exchange Act,\1596\ or, if not required to file such statements, a 
broker-dealer with total capital (net worth plus subordinated 
liabilities) of less than $500,000 on the last day of the preceding 
fiscal year (or in the time that it has been in business, if shorter); 
and is not affiliated with any person (other than a natural person) 
that is not a small business or small organization.\1597\ Under the 
standards adopted by the Small Business Administration, small entities 
in the finance and insurance industry include the following: (i) For 
entities engaged in credit intermediation and related activities, 
entities with $175 million or less in assets; \1598\ (ii) for entities 
engaged in non-depository credit intermediation and certain other 
activities, entities with $7 million or less in annual receipts; \1599\ 
(iii) for entities engaged in financial investments and related 
activities, entities with $7 million or less in annual receipts; \1600\ 
(iv) for insurance carriers and entities engaged in related activities, 
entities with $7 million or less in annual receipts; \1601\ and (v) for 
funds, trusts, and other financial vehicles, entities with $7 million 
or less in annual receipts.\1602\
---------------------------------------------------------------------------

    \1595\ See 17 CFR 240.0-10(a).
    \1596\ See 17 CFR 240.17a-5(d).
    \1597\ See 17 CFR 240.0-10(c).
    \1598\ See 13 CFR 121.201 (Subsector 522).
    \1599\ See id. at Subsector 522.
    \1600\ See id. at Subsector 523.
    \1601\ See id. at Subsector 524.
    \1602\ See id. at Subsector 525.
---------------------------------------------------------------------------

    The Proposing Release stated that based on feedback from industry 
participants about the security-based swap markets, the SEC 
preliminarily believes that any entities that would qualify as 
security-based swap dealers and major security-based swap market 
participants would exceed the thresholds defining ``small entities,'' 
and that the SEC believes it is unlikely that the proposed rules would 
have a significant economic impact on any small entity. As a result, 
the SEC certified that the proposed rules would not have a significant 
economic impact on a substantial number of small entities for purposes 
of the RFA, and requested written comments regarding this 
certification.\1603\
---------------------------------------------------------------------------

    \1603\ See Proposing Release, 75 FR at 80211.
---------------------------------------------------------------------------

    While we received comment letters that addressed cost issues in 
connection with the proposed rules, we did not receive any comments 
that specifically addressed whether the rules defining ``security-based 
swap dealer'' or ``major security-based swap participant'' would have a 
significant economic impact on small entities.
    The SEC continues to believe that the types of entities that would 
engage in more than a de minimis amount of dealing activity involving 
security-based swaps--which generally would be major banks--would not 
be ``small entities'' for purposes of the RFA. Similarly, the SEC 
continues to believe that the types of entities that may have security-
based swap positions above the level required to be a ``major security-
based swap participant'' would not be a ``small entity'' for purposes 
of the RFA. Accordingly, the SEC certifies that the final rules 
defining ``security-based swap dealer'' or ``major security-based swap 
participant'' would not have a significant economic impact on a 
substantial number of small entities for purposes of the RFA.

Statutory Basis and Text of the Amendments

List of Subjects in 17 CFR Part 1

    Brokers, Commodity futures, Consumer protection, Reporting and 
recordkeeping requirements.

Commodity Futures Trading Commission

    For the reasons stated in the preamble, the CFTC is adopting the 
following amendments to 17 CFR part 1.

PART 1--GENERAL REGULATIONS UNDER THE COMMODITY EXCHANGE ACT

0
1. The authority citation for part 1 is revised 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, as amended by Title VII of 
the Dodd-Frank Wall Street Reform and Consumer Protection Act, Pub. 
L. 111-203, 124 Stat. 1376 (2010).


0
2. Amend Sec.  1.3 by revising paragraph (m) and adding paragraphs 
(ggg) through (mmm) to read as follows:


Sec.  1.3  Definitions.

* * * * *
    (m) Eligible contract participant. This term has the meaning set 
forth in Section 1a(18) of the Act, except that:
    (1) A major swap participant, as defined in Section 1a(33) of the 
Act and paragraph (hhh) of this section, is an eligible contract 
participant;
    (2) A swap dealer, as defined in Section 1a(49) of the Act and 
paragraph (ggg) of this section, is an eligible contract participant;
    (3) A major security-based swap participant, as defined in Section 
3(a)(67) of the Securities Exchange Act

[[Page 30744]]

of 1934 and Sec.  240.3a67-1 of this title, is an eligible contract 
participant;
    (4) A security-based swap dealer, as defined in Section 3(a)(71) of 
the Securities Exchange Act of 1934 and Sec.  240.3a71-1 of this title, 
is an eligible contract participant;
    (5)(i) A transaction-level commodity pool with one or more direct 
participants that is not an eligible contract participant is not itself 
an eligible contract participant under either Section 1a(18)(A)(iv) or 
Section 1a(18)(A)(v) of the Act for purposes of entering into 
transactions described in Sections 2(c)(2)(B)(vi) and 2(c)(2)(C)(vii) 
of the Act; and
    (ii) In determining whether a commodity pool that is a direct 
participant in a transaction-level commodity pool is an eligible 
contract participant for purposes of paragraph (m)(5)(i) of this 
section, the participants in the commodity pool that is a direct 
participant in the transaction-level commodity pool shall not be 
considered unless the transaction-level commodity pool, any commodity 
pool holding a direct or indirect interest in such transaction-level 
commodity pool, or any commodity pool in which such transaction-level 
commodity pool holds a direct or indirect interest, has been structured 
to evade subtitle A of Title VII of the Dodd-Frank Wall Street Reform 
and Consumer Protection Act by permitting persons that are not eligible 
contract participants to participate in agreements, contracts, or 
transactions described in Section 2(c)(2)(B)(i) or Section 
2(c)(2)(C)(i) of the Act;
    (6) A commodity pool that does not have total assets exceeding 
$5,000,000 or that is not operated by a person described in subclause 
(A)(iv)(II) of Section 1a(18) of the Act is not an eligible contract 
participant pursuant to clause (A)(v) of such Section;
    (7)(i) For purposes of a swap (but not a security-based swap, 
security-based swap agreement or mixed swap) used to hedge or mitigate 
commercial risk, an entity may, in determining its net worth for 
purposes of Section 1a(18)(A)(v)(III) of the Act, include the net worth 
of any owner of such entity, provided that all the owners of such 
entity are eligible contract participants;
    (ii)(A) For purposes of identifying the owners of an entity under 
paragraph (m)(7)(i) of this section, any person holding a direct 
ownership interest in such entity shall be considered to be an owner of 
such entity; provided, however, that any shell company shall be 
disregarded, and the owners of such shell company shall be considered 
to be the owners of any entity owned by such shell company;
    (B) For purposes of paragraph (m)(7)(ii)(A) of this section, the 
term shell company means any entity that limits its holdings to direct 
or indirect interests in entities that are relying on this paragraph 
(m)(7); and
    (C) In determining whether an owner of an entity is an eligible 
contract participant for purposes of paragraph (m)(7)(i) of this 
section, an individual may be considered to be a proprietorship 
eligible contract participant only if the individual--
    (1) Has an active role in operating a business other than an 
entity;
    (2) Directly owns all of the assets of the business;
    (3) Directly is responsible for all of the liabilities of the 
business; and
    (4) Acquires its interest in the entity seeking to qualify as an 
eligible contract participant under paragraph (m)(7)(i) of this section 
in connection with the operation of the individual's proprietorship or 
to manage the risk associated with an asset or liability owned or 
incurred or reasonably likely to be owned or incurred by the individual 
in the operation of the individual's proprietorship; and
    (iii) For purposes of paragraph (m)(7)(i) of this section, a swap 
is used to hedge or mitigate commercial risk if the swap complies with 
the conditions in paragraph (kkk) of this section; and
    (8) Notwithstanding Section 1a(18)(A)(iv) of the Act and paragraph 
(m)(5) of this section, a commodity pool that enters into an agreement, 
contract, or transaction described in Section 2(c)(2)(B)(i) or Section 
2(c)(2)(C)(i)(I) of the Act is an eligible contract participant with 
respect to such agreement, contract, or transaction, regardless of 
whether each participant in such commodity pool is an eligible contract 
participant, if all of the following conditions are satisfied:
    (i) The commodity pool is not formed for the purpose of evading 
regulation under Section 2(c)(2)(B) or Section 2(c)(2)(C) of the Act or 
related Commission rules, regulations or orders;
    (ii) The commodity pool has total assets exceeding $10,000,000; and
    (iii) The commodity pool is formed and operated by a registered 
commodity pool operator or by a commodity pool operator who is exempt 
from registration as such pursuant to Sec.  4.13(a)(3) of this chapter.
* * * * *
    (ggg) Swap Dealer. (1) In general. The term swap dealer means any 
person who:
    (i) Holds itself out as a dealer in swaps;
    (ii) Makes a market in swaps;
    (iii) Regularly enters into swaps with counterparties as an 
ordinary course of business for its own account; or
    (iv) Engages in any activity causing it to be commonly known in the 
trade as a dealer or market maker in swaps.
    (2) Exception. The term swap dealer does not include a person that 
enters into swaps for such person's own account, either individually or 
in a fiduciary capacity, but not as a part of regular business.
    (3) Scope of designation. A person who is a swap dealer shall be 
deemed to be a swap dealer with respect to each swap it enters into, 
regardless of the category of the swap or the person's activities in 
connection with the swap. However, if a person makes an application to 
limit its designation as a swap dealer to specified categories of swaps 
or specified activities of the person in connection with swaps, the 
Commission shall determine whether the person's designation as a swap 
dealer shall be so limited. If the Commission grants such limited 
designation, such limited designation swap dealer shall be deemed to be 
a swap dealer with respect to each swap it enters into in the swap 
category or categories for which it is so designated, regardless of the 
person's activities in connection with such category or categories of 
swaps. A person may make such application to limit the categories of 
swaps or activities of the person that are subject to its swap dealer 
designation at the same time as, or after, the person's initial 
registration as a swap dealer.
    (4) De minimis exception. (i) Except as provided in paragraph 
(ggg)(4)(vi) of this section, a person that is not currently registered 
as a swap dealer shall be deemed not to be a swap dealer as a result of 
its swap dealing activity involving counterparties, so long as the swap 
positions connected with those dealing activities into which the 
person--or any other entity controlling, controlled by or under common 
control with the person--enters over the course of the immediately 
preceding 12 months (or following the effective date of final rules 
implementing Section 1a(47) of the Act, 7 U.S.C. 1a(47), if that period 
is less than 12 months) have an aggregate gross notional amount of no 
more than $3 billion, subject to a phase in level of an aggregate gross 
notional amount of no more than $8 billion applied in accordance with 
paragraph (ggg)(4)(ii) of this section, and an aggregate gross notional 
amount of no more than $25 million with regard to swaps in which the 
counterparty is a ``special entity'' (as that term is defined in 
Section 4s(h)(2)(C) of the Act, 7

[[Page 30745]]

U.S.C. 6s(h)(2)(C), and Sec.  23.401(c) of this chapter). For purposes 
of this paragraph, if the stated notional amount of a swap is leveraged 
or enhanced by the structure of the swap, the calculation shall be 
based on the effective notional amount of the swap rather than on the 
stated notional amount.
    (ii) Phase-in procedure and staff report. (A) Phase-in period. For 
purposes of paragraph (ggg)(4)(i) of this section, except as provided 
in paragraph (ggg)(4)(vi) of this section, a person that engages in 
swap dealing activity that does not exceed the phase-in level set forth 
in paragraph (ggg)(4)(i) shall be deemed not to be a swap dealer as a 
result of its swap dealing activity until the ``phase-in termination 
date'' established as provided in paragraph (ggg)(4)(ii)(C) or (D) of 
this section. The Commission shall announce the phase-in termination 
date on the Commission Web site and publish such date in the Federal 
Register.
    (B) Staff report. No later than 30 months following the date that a 
swap data repository first receives swap data in accordance with part 
45 of this chapter, the staff of the Commission shall complete and 
publish for public comment a report on topics relating to the 
definition of the term ``swap dealer'' and the de minimis threshold. 
The report should address the following topics, as appropriate, based 
on the availability of data and information: the potential impact of 
modifying the de minimis threshold, and whether the de minimis 
threshold should be increased or decreased; the factors that are useful 
for identifying swap dealing activity, including the application of the 
dealer-trader distinction for that purpose, and the potential use of 
objective tests or safe harbors as part of the analysis; the impact of 
provisions in paragraphs (ggg)(5) and (6) of this section excluding 
certain swaps from the dealer analysis, and potential alternative 
approaches for such exclusions; and any other analysis of swap data and 
information relating to swaps that the Commission or staff deem 
relevant to this rule.
    (C) Nine months after publication of the report required by 
paragraph (ggg)(4)(ii)(B) of this section, and after giving due 
consideration to that report and any associated public comment, the 
Commission may either:
    (1) Terminate the phase-in period set forth in paragraph 
(ggg)(4)(ii)(A) of this section, in which case the phase-in termination 
date shall be established by the Commission by order published in the 
Federal Register; or
    (2) Determine that it is necessary or appropriate in the public 
interest to propose through rulemaking an alternative to the $3 billion 
amount set forth in paragraph (ggg)(4)(i) of this section that would 
constitute a de minimis quantity of swap dealing in connection with 
transactions with or on behalf of customers within the meaning of 
section 1(a)(47)(D) of the Act, 7 U.S.C. 1(a)(47)(D), in which case the 
Commission shall by order published in the Federal Register provide 
notice of such determination, which order shall also establish the 
phase-in termination date.
    (D) If the phase-in termination date has not been previously 
established pursuant to paragraph (ggg)(4)(ii)(C) of this section, then 
in any event the phase-in termination date shall occur five years after 
the date that a swap repository first receives swap data in accordance 
with part 45 of this chapter.
    (iii) Registration period for persons that can no longer take 
advantage of the exception. A person that has not registered as a swap 
dealer by virtue of satisfying the requirements of this paragraph 
(ggg)(4), but that no longer can take advantage of that de minimis 
exception, will be deemed not to be a swap dealer until the earlier of 
the date on which it submits a complete application for registration 
pursuant to Section 4s(b) of the Act, 7 U.S.C. 6s(b), or two months 
after the end of the month in which that person becomes no longer able 
to take advantage of the exception.
    (iv) Applicability to registered swap dealers. A person who 
currently is registered as a swap dealer may apply to withdraw that 
registration, while continuing to engage in swap dealing activity in 
reliance on this section, so long as that person has been registered as 
a swap dealer for at least 12 months and satisfies the conditions of 
paragraph (ggg)(4)(i) of this section.
    (v) Future adjustments to scope of the de minimis exception. The 
Commission may by rule or regulation change the requirements of the de 
minimis exception described in paragraphs (ggg)(4)(i) through (iv) of 
this section.
    (vi) Voluntary registration. Notwithstanding paragraph (ggg)(4)(i) 
of this section, a person that chooses to register with the Commission 
as a swap dealer shall be deemed to be a swap dealer.
    (5) Insured depository institution swaps in connection with 
originating loans to customers. Swaps entered into by an insured 
depository institution with a customer in connection with originating a 
loan with that customer shall not be considered in determining whether 
the insured depository institution is a swap dealer.
    (i) An insured depository institution shall be considered to have 
entered into a swap with a customer in connection with originating a 
loan, as defined in paragraphs (ggg)(5)(ii) and (iii) of this section, 
with that customer only if:
    (A) The insured depository institution enters into the swap with 
the customer no earlier than 90 days before and no later than 180 days 
after the date of execution of the applicable loan agreement, or no 
earlier than 90 days before and no later than 180 days after any 
transfer of principal to the customer by the insured depository 
institution pursuant to the loan;
    (B)(1) The rate, asset, liability or other notional item underlying 
such swap is, or is directly related to, a financial term of such loan, 
which includes, without limitation, the loan's duration, rate of 
interest, the currency or currencies in which it is made and its 
principal amount;
    (2) Such swap is required, as a condition of the loan under the 
insured depository institution's loan underwriting criteria, to be in 
place in order to hedge price risks incidental to the borrower's 
business and arising from potential changes in the price of a commodity 
(other than an excluded commodity);
    (C) The duration of the swap does not extend beyond termination of 
the loan;
    (D) The insured depository institution is:
    (1) The sole source of funds to the customer under the loan;
    (2) Committed to be, under the terms of the agreements related to 
the loan, the source of at least 10 percent of the maximum principal 
amount under the loan; or
    (3) Committed to be, under the terms of the agreements related to 
the loan, the source of a principal amount that is greater than or 
equal to the aggregate notional amount of all swaps entered into by the 
insured depository institution with the customer in connection with the 
financial terms of the loan;
    (E) The aggregate notional amount of all swaps entered into by the 
customer in connection with the financial terms of the loan is, at any 
time, not more than the aggregate principal amount outstanding under 
the loan at that time; and
    (F) If the swap is not accepted for clearing by a derivatives 
clearing organization, the insured depository institution reports the 
swap as required by section 4r of the Act, 7 U.S.C. 6r (except as 
otherwise provided in section 4r(a)(3)(A), 7 U.S.C. 6r(a)(3)(A), or 
section 4r(a)(3)(B), 7 U.S.C. 6r(a)(3)(B) of the Act).

[[Page 30746]]

    (ii) An insured depository institution shall be considered to have 
originated a loan with a customer if the insured depository 
institution:
    (A) Directly transfers the loan amount to the customer;
    (B) Is a part of a syndicate of lenders that is the source of the 
loan amount that is transferred to the customer;
    (C) Purchases or receives a participation in the loan; or
    (D) Otherwise is the source of funds that are transferred to the 
customer pursuant to the loan or any refinancing of the loan.
    (iii) The term loan shall not include:
    (A) Any transaction that is a sham, whether or not intended to 
qualify for the exclusion from the definition of the term swap dealer 
in this rule; or
    (B) Any synthetic loan, including, without limitation, a loan 
credit default swap or loan total return swap.
    (6) Swaps that are not considered in determining whether a person 
is a swap dealer. (i) Inter-affiliate activities. In determining 
whether a person is a swap dealer, that person's swaps with majority-
owned affiliates shall not be considered. For these purposes the 
counterparties to a swap are majority-owned affiliates if one 
counterparty directly or indirectly owns a majority interest in the 
other, or if a third party directly or indirectly owns a majority 
interest in both counterparties to the swap, where ``majority 
interest'' is the right to vote or direct the vote of a majority of a 
class of voting securities of an entity, the power to sell or direct 
the sale of a majority of a class of voting securities of an entity, or 
the right to receive upon dissolution or the contribution of a majority 
of the capital of a partnership.
    (ii) Activities of a cooperative. (A) Any swap that is entered into 
by a cooperative with a member of such cooperative shall not be 
considered in determining whether the cooperative is a swap dealer, 
provided that:
    (1) The swap is subject to policies and procedures of the 
cooperative requiring that the cooperative monitors and manages the 
risk of such swap;
    (2) The cooperative reports the swap as required by Section 4r of 
the Act, 7 U.S.C. 6r (except as otherwise provided in Section 
4r(a)(3)(A) of the Act, 7 U.S.C. 6r(a)(3)(A) or Section 4r(a)(3)(B) of 
the Act, 7 U.S.C. 6r(a)(3)(B)); and
    (3) if the cooperative is a cooperative association of producers, 
the swap is primarily based on a commodity that is not an excluded 
commodity.
    (B) For purposes of this paragraph (ggg)(6)(ii), the term 
cooperative shall mean:
    (1) A cooperative association of producers as defined in section 
1a(14) of the Act, 7 U.S.C. 1a(14), or
    (2) A person chartered under Federal law as a cooperative and 
predominantly engaged in activities that are financial in nature as 
defined in section 4(k) of the Bank Holding Company Act of 1956, 12 
U.S.C. 1843(k).
    (C) For purposes of this paragraph (ggg)(6)(ii), a swap shall be 
deemed to be entered into by a cooperative association of producers 
with a member of such cooperative association of producers when the 
swap is between a cooperative association of producers and a person 
that is a member of a cooperative association of producers that is 
itself a member of the first cooperative association of producers.
    (iii) Swaps entered into for the purpose of hedging physical 
positions. In determining whether a person is a swap dealer, a swap 
that the person enters into shall not be considered, if:
    (A) The person enters into the swap for the purpose of offsetting 
or mitigating the person's price risks that arise from the potential 
change in the value of one or several--
    (1) Assets that the person owns, produces, manufactures, processes, 
or merchandises or anticipates owning, producing, manufacturing, 
processing, or merchandising;
    (2) Liabilities that the person owns or anticipates incurring; or
    (3) Services that the person provides, purchases, or anticipates 
providing or purchasing;
    (B) The swap represents a substitute for transactions made or to be 
made or positions taken or to be taken by the person at a later time in 
a physical marketing channel;
    (C) The swap is economically appropriate to the reduction of the 
person's risks in the conduct and management of a commercial 
enterprise;
    (D) The swap is entered into in accordance with sound commercial 
practices; and
    (E) The person does not enter into the swap in connection with 
activity structured to evade designation as a swap dealer.
    (iv) Swaps entered into by floor traders. In determining whether a 
person is a swap dealer, each swap that the person enters into in its 
capacity as a floor trader as defined by section 1a(23) of the Act or 
on or subject to the rules of a swap execution facility shall not be 
considered for the purpose of determining whether the person is a swap 
dealer if the person:
    (A) Is registered with the Commission as a floor trader pursuant to 
Sec.  3.11 of this chapter;
    (B) Enters into swaps with proprietary funds for that trader's own 
account solely on or subject to the rules of a designated contract 
market or swap execution facility and submits each such swap for 
clearing to a derivatives clearing organization;
    (C) Is not an affiliated person of a registered swap dealer;
    (D) Does not directly, or through an affiliated person, negotiate 
the terms of swap agreements, other than price and quantity or to 
participate in a request for quote process subject to the rules of a 
designated contract market or a swap execution facility;
    (E) Does not directly or through an affiliated person offer or 
provide swap clearing services to third parties;
    (F) Does not directly or through an affiliated person enter into 
swaps that would qualify as hedging physical positions pursuant to 
paragraph (ggg)(6)(iii) of this section or hedging or mitigating 
commercial risk pursuant to paragraph (kkk) of this section (except for 
any such swap executed opposite a counterparty for which the 
transaction would qualify as a bona fide hedging transaction);
    (G) Does not participate in any market making program offered by a 
designated contract market or swap execution facility; and
    (H) Notwithstanding the fact such person is not registered as a 
swap dealer, such person complies with Sec. Sec.  23.201, 23.202, 
23.203, and 23.600 of this chapter with respect to each such swap as if 
it were a swap dealer.
    (hhh) Major Swap Participant. (1) In general. The term major swap 
participant means any person:
    (i) That is not a swap dealer; and
    (ii)(A) That maintains a substantial position in swaps for any of 
the major swap categories, excluding both positions held for hedging or 
mitigating commercial risk, and positions maintained by any employee 
benefit plan (or any contract held by such a plan) as defined in 
paragraphs (3) and (32) of Section 3 of the Employee Retirement Income 
Security Act of 1974, 29 U.S.C. 1002, for the primary purpose of 
hedging or mitigating any risk directly associated with the operation 
of the plan;
    (B) Whose outstanding swaps create substantial counterparty 
exposure that could have serious adverse effects on the financial 
stability of the United States banking system or financial markets; or
    (C) That is a financial entity that:
    (1) Is highly leveraged relative to the amount of capital such 
entity holds and that is not subject to capital requirements 
established by an

[[Page 30747]]

appropriate Federal banking agency (as defined in Section 1a(2) of the 
Act, 7 U.S.C. 1a(2)); and
    (2) Maintains a substantial position in outstanding swaps in any 
major swap category.
    (2) Scope of designation. A person that is a major swap participant 
shall be deemed to be a major swap participant with respect to each 
swap it enters into, regardless of the category of the swap or the 
person's activities in connection with the swap. However, if a person 
makes an application to limit its designation as a major swap 
participant to specified categories of swaps, the Commission shall 
determine whether the person's designation as a major swap participant 
shall be so limited. If the Commission grants such limited designation, 
such limited designation major swap participant shall be deemed to be a 
major swap participant with respect to each swap it enters into in the 
swap category or categories for which it is so designated, regardless 
of the person's activities in connection with such category or 
categories of swaps. A person may make such application to limit its 
designation at the same time as, or after, the person's initial 
registration as a major swap participant.
    (3) Timing requirements. A person that is not registered as a major 
swap participant, but that meets the criteria in this rule to be a 
major swap participant as a result of its swap activities in a fiscal 
quarter, will not be deemed to be a major swap participant until the 
earlier of the date on which it submits a complete application for 
registration as a major swap participant pursuant to Section 4s(a)(2) 
of the Act, 7 U.S.C. 6s(a)(2), or two months after the end of that 
quarter.
    (4) Reevaluation period. Notwithstanding paragraph (hhh)(3) of this 
section, if a person that is not registered as a major swap participant 
meets the criteria in this rule to be a major swap participant in a 
fiscal quarter, but does not exceed any applicable threshold by more 
than twenty percent in that quarter:
    (i) That person will not be deemed a major swap participant 
pursuant to the timing requirements specified in paragraph (hhh)(3) of 
this section; but
    (ii) That person will be deemed a major swap participant pursuant 
to the timing requirements specified in paragraph (hhh)(3) of this 
section at the end of the next fiscal quarter if the person exceeds any 
of the applicable daily average thresholds in that next fiscal quarter.
    (5) Termination of status. A person that is deemed to be a major 
swap participant shall continue to be deemed a major swap participant 
until such time that its swap activities do not exceed any of the daily 
average thresholds set forth within this rule for four consecutive 
fiscal quarters after the date on which the person becomes registered 
as a major swap participant.
    (6) Calculation of status. A person shall not be deemed to be a 
``major swap participant,'' regardless of whether the criteria 
paragraph (hhh)(1) of this section otherwise would cause the person to 
be a major swap participant, provided the person meets the conditions 
set forth in paragraphs (hhh)(6)(i), (ii) or (iii) of this section.
    (i) Caps on uncollateralized exposure and notional positions.
    (A) Maximum potential uncollateralized exposure. The express terms 
of the person's agreements or arrangements relating to swaps with its 
counterparties at no time would permit the person to maintain a total 
uncollateralized exposure of more than $100 million to all such 
counterparties, including any exposure that may result from thresholds 
or minimum transfer amounts established by credit support annexes or 
similar arrangements; and
    (B) Maximum notional amount of swap positions. The person does not 
maintain swap positions in a notional amount of more than $2 billion in 
any major category of swaps, or more than $4 billion in the aggregate 
across all major categories; or
    (ii) Caps on uncollateralized exposure plus monthly calculation.
    (A) Maximum potential uncollateralized exposure. The express terms 
of the person's agreements or arrangements relating to swaps with its 
counterparties at no time would permit the person to maintain a total 
uncollateralized exposure of more than $200 million to all such 
counterparties (with regard to swaps and any other instruments by which 
the person may have exposure to those counterparties), including any 
exposure that may result from thresholds or minimum transfer amounts 
established by credit support annexes or similar arrangements; and
    (B) Calculation of positions. (1) At the end of each month, the 
person performs the calculations prescribed by paragraph (jjj) of this 
section with regard to whether the aggregate uncollateralized outward 
exposure plus aggregate potential outward exposure as of that day 
constitute a ``substantial position'' in a major category of swaps, or 
pose ``substantial counterparty exposure that could have serious 
adverse effects on the financial stability of the United States banking 
system or financial markets''; these calculations shall disregard 
provisions of those rules that provide for the analyses to be 
determined based on a daily average over a calendar quarter; and
    (2) Each such analysis produces thresholds of no more than:
    (i) $1 billion in aggregate uncollateralized outward exposure plus 
aggregate potential outward exposure in any major category of swaps; if 
the person is subject to paragraph (jjj) of this section, by virtue of 
being a highly leveraged financial entity that is not subject to 
capital requirements established by an appropriate Federal banking 
agency, this analysis shall account for all of the person's swap 
positions in that major category (without excluding hedging positions), 
otherwise this analysis shall exclude the same hedging and related 
positions that are excluded from consideration pursuant to paragraph 
(jjj)(1)(i) of this section; or
    (ii) $2 billion in aggregate uncollateralized outward exposure plus 
aggregate potential outward exposure (without any positions excluded 
from the analysis) with regard to all of the person's swap positions.
    (iii) Calculations based on certain information. (A)(1) At the end 
of each month, the person's aggregate uncollateralized outward exposure 
with respect to its swap positions in each major swap category is less 
than $1.5 billion with respect to the rate swap category and less than 
$500 million with respect to each of the other major swap categories; 
and
    (2) At the end of each month, the sum of the amount calculated 
under paragraph (hhh)(6)(iii)(A)(1) of this section with respect to 
each major swap category and the total notional principal amount of the 
person's swap positions in each such major swap category, adjusted by 
the multipliers set forth in paragraph (jjj)(3)(ii)(1) of this section 
on a position-by-position basis reflecting the type of swap, is less 
than $3 billion with respect to the rate swap category and less than $1 
billion with respect to each of the other major swap categories; or
    (B)(1) At the end of each month, the person's aggregate 
uncollateralized outward exposure with respect to its swap positions 
across all major swap categories is less than $500 million; and
    (2) The sum of the amount calculated under paragraph 
(hhh)(6)(iii)(B)(1) of this section and the product of the total 
effective notional principal amount of the person's swap positions in 
all major security-based swap categories multiplied by 0.15 is less 
than $1 billion.
    (C) For purposes of the calculations set forth in this paragraph 
(hhh)(6)(iii):

[[Page 30748]]

    (1) The person's aggregate uncollateralized outward exposure for 
positions held with swap dealers shall be equal to such exposure 
reported on the most recent reports of such exposure received from such 
swap dealers; and
    (2) The person's aggregate uncollateralized outward exposure for 
positions that are not reflected in any report of exposure from a swap 
dealer (including all swap positions it holds with persons other than 
swap dealers) shall be calculated in accordance with paragraph (jjj)(2) 
of this section.
    (iv) For purposes of the calculations set forth in this paragraph 
(hhh)(6), the person shall use the effective notional amount of a 
position rather than the stated notional amount of the position if the 
stated notional amount is leveraged or enhanced by the structure of the 
position.
    (v) No presumption shall arise that a person is required to perform 
the calculations needed to determine if it is a major swap participant, 
solely by reason that the person does not meet the conditions specified 
in paragraph (hhh)(6)(i), (ii) or (iii) of this section.
    (7) Exclusions. A person who is registered as a derivatives 
clearing organization with the Commission pursuant to section 5b of the 
Act and regulations thereunder, shall not be deemed to be a major swap 
participant, regardless of whether the criteria in this paragraph (hhh) 
otherwise would cause the person to be a major swap participant.
    (iii) Category of swaps; major swap category. For purposes of 
Section 1a(33) the Act, 7 U.S.C. 1a(33), and paragraph (hhh) of this 
section, the terms major swap category, category of swaps and any 
similar terms mean any of the categories of swaps listed below. For the 
avoidance of doubt, the term swap as it is used in this paragraph (iii) 
has the meaning set forth in Section 1a(47) of the Act, 7 U.S.C. 
1a(47), and the rules thereunder.
    (1) Rate swaps. Any swap which is primarily based on one or more 
reference rates, including but not limited to any swap of payments 
determined by fixed and floating interest rates, currency exchange 
rates, inflation rates or other monetary rates, any foreign exchange 
swap, as defined in Section 1a(25) of the Act, 7 U.S.C. 1a(25), and any 
foreign exchange option other than an option to deliver currency.
    (2) Credit swaps. Any swap that is primarily based on instruments 
of indebtedness, including but not limited to any swap primarily based 
on one or more broad-based indices related to debt instruments or 
loans, and any swap that is an index credit default swap or total 
return swap on one or more indices of debt instruments.
    (3) Equity swaps. Any swap that is primarily based on equity 
securities, including but not limited to any swap based on one or more 
broad-based indices of equity securities and any total return swap on 
one or more equity indices.
    (4) Other commodity swaps. Any swap that is not included in the 
rate swap, credit swap or equity swap categories.
    (jjj) Substantial position. (1) In general. For purposes of Section 
1a(33) of the Act, 7 U.S.C. 1a(33), and paragraph (hhh) of this 
section, the term ``substantial position'' means swap positions that 
equal or exceed any of the following thresholds in the specified major 
category of swaps:
    (i) For rate swaps:
    (A) $3 billion in daily average aggregate uncollateralized outward 
exposure; or
    (B) $6 billion in:
    (1) Daily average aggregate uncollateralized outward exposure plus
    (2) Daily average aggregate potential outward exposure.
    (ii) For credit swaps:
    (A) $1 billion in daily average aggregate uncollateralized outward 
exposure; or
    (B) $2 billion in:
    (1) Daily average aggregate uncollateralized outward exposure plus
    (2) Daily average aggregate potential outward exposure.
    (iii) For equity swaps:
    (A) $1 billion in daily average aggregate uncollateralized outward 
exposure; or
    (B) $2 billion in:
    (1) Daily average aggregate uncollateralized outward exposure plus
    (2) Daily average aggregate potential outward exposure.
    (iv) For other commodity swaps:
    (A) $1 billion in daily average aggregate uncollateralized outward 
exposure; or
    (B) $2 billion in:
    (1) Daily average aggregate uncollateralized outward exposure plus
    (2) Daily average aggregate potential outward exposure.
    (2) Aggregate uncollateralized outward exposure. (i) In general. 
Aggregate uncollateralized outward exposure in general means the sum of 
the current exposure, obtained by marking-to-market using industry 
standard practices, of each of the person's swap positions with 
negative value in a major swap category, less the value of the 
collateral the person has posted in connection with those positions.
    (ii) Calculation of aggregate uncollateralized outward exposure. In 
calculating this amount the person shall, with respect to each of its 
swap counterparties in a given major swap category, determine the 
dollar value of the aggregate current exposure arising from each of its 
swap positions with negative value (subject to the netting provisions 
described below) in that major category by marking-to-market using 
industry standard practices; and deduct from that dollar amount the 
aggregate value of the collateral the person has posted with respect to 
the swap positions. The aggregate uncollateralized outward exposure 
shall be the sum of those uncollateralized amounts across all of the 
person's swap counterparties in the applicable major category.
    (iii) Relevance of netting agreements. (A) If the person has one or 
more master netting agreement in effect with a particular counterparty, 
the person may measure the current exposure arising from its swaps in 
any major category on a net basis, applying the terms of those 
agreements. Calculation of net current exposure may take into account 
offsetting positions entered into with that particular counterparty 
involving swaps (in any swap category) as well as security-based swaps 
and securities financing transactions (consisting of securities lending 
and borrowing, securities margin lending and repurchase and reverse 
repurchase agreements), and other financial instruments that are 
subject to netting offsets for purposes of applicable bankruptcy law, 
to the extent these are consistent with the offsets permitted by the 
master netting agreements.
    (B) Such adjustments may not take into account any offset 
associated with positions that the person has with separate 
counterparties.
    (iv) Allocation of uncollateralized outward exposure. If a person 
calculates current exposure with a particular counterparty on a net 
basis, as provided by paragraph (jjj)(2)(iii) of this section, the 
portion of that current exposure that should be attributed to each 
``major'' category of swaps for purposes of the substantial position 
analysis should be calculated according to the formula:

[[Page 30749]]

[GRAPHIC] [TIFF OMITTED] TR23MY12.000

    Where: ES(MC) equals the amount of aggregate current exposure 
attributable to the entity's swap positions in the ``major'' swap 
category at issue; Enet total equals the entity's aggregate current 
exposure to the counterparty at issue, after accounting for the 
netting of positions and the posting of collateral; OTMS(MC) equals 
the exposure associated with the entity's out-of-the-money positions 
in swaps in the ``major'' category at issue, subject to those 
netting arrangements; and OTMS(O) equals the exposure associated 
with the entity's out-of-the-money positions in the other ``major'' 
categories of swaps, subject to those netting arrangements; and 
OTMnon-S equals the exposure associated with the entity's out-of-
the-money positions associated with instruments, other than swaps, 
that are subject to those netting arrangements.

    (3) Aggregate potential outward exposure. (i) In general. Aggregate 
potential outward exposure in any major swap category means the sum of:
    (A) The aggregate potential outward exposure for each of the 
person's swap positions in a major swap category that are not subject 
to daily mark-to-market margining and are not cleared by a registered 
or exempt clearing agency or derivatives clearing organization, as 
calculated in accordance with paragraph (jjj)(3)(ii) of this section; 
and
    (B) The aggregate potential outward exposure for each of the 
person's swap positions in such major swap category that are either 
subject to daily mark-to-market margining or are cleared by a 
registered or exempt clearing agency or derivatives clearing 
organization, as calculated in accordance with paragraph (jjj)(3)(iii) 
of this section.
    (ii) Calculation of potential outward exposure for swaps that are 
not subject to daily mark-to-market margining and are not cleared by a 
registered or exempt clearing agency or derivatives clearing 
organization. (A) In general. (1) For positions in swaps that are not 
subject to daily mark-to-market margining and are not cleared by a 
registered or exempt clearing agency or a derivatives clearing 
organization, potential outward exposure equals the total notional 
principal amount of those positions, multiplied by the following 
factors on a position-by-position basis reflecting the type of swap. 
For any swap that does not appropriately fall within any of the 
specified categories, the ``other commodities'' conversion factors set 
forth in the following Table 1 are to be used. If a swap is structured 
such that on specified dates any outstanding exposure is settled and 
the terms are reset so that the market value of the swap is zero, the 
remaining maturity equals the time until the next reset date.

                                                       Table 1--Conversion Factor Matrix for Swaps
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                            Foreign exchange      Precious metals
                         Residual maturity                              Interest rate         rate and gold        (except gold)      Other commodities
--------------------------------------------------------------------------------------------------------------------------------------------------------
One year or less..................................................                 0.00                  0.01                  0.07                 0.10
Over one to five years............................................                 0.005                 0.05                  0.07                 0.12
Over five years...................................................                 0.015                 0.075                 0.08                 0.15
--------------------------------------------------------------------------------------------------------------------------------------------------------


------------------------------------------------------------------------
                   Residual maturity                     Credit   Equity
------------------------------------------------------------------------
One year or less......................................     0.10     0.06
Over one to five years................................     0.10     0.08
Over five years.......................................     0.10     0.10
------------------------------------------------------------------------

    (2) Use of effective notional amounts. If the stated notional 
amount on a position is leveraged or enhanced by the structure of the 
position, the calculation in paragraph (jjj)(3)(ii)(A)(1) of this 
section shall be based on the effective notional amount of the position 
rather than on the stated notional amount.
    (3) Exclusion of certain positions. The calculation in paragraph 
(jjj)(3)(ii)(A)(1) of this section shall exclude:
    (i) Positions that constitute the purchase of an option, if the 
purchaser has no additional payment obligations under the position;
    (ii) Other positions for which the person has prepaid or otherwise 
satisfied all of its payment obligations; and
    (iii) Positions for which, pursuant to law or a regulatory 
requirement, the person has assigned an amount of cash or U.S. Treasury 
securities that is sufficient at all times to pay the person's maximum 
possible liability under the position, and the person may not use that 
cash or those Treasury securities for other purposes.
    (4) Adjustment for certain positions. Notwithstanding paragraph 
(jjj)(3)(ii)(A)(1) of this section, the potential outward exposure 
associated with a position by which a person buys credit protection 
using a credit default swap or index credit default swap, or associated 
with a position by which a person purchases an option for which the 
person retains additional payment obligations under the position, is 
capped at the net present value of the unpaid premiums.
    (B) Adjustment for netting agreements. Notwithstanding paragraph 
(jjj)(3)(ii)(A) of this section, for positions subject to master 
netting agreements the potential outward exposure associated with the 
person's swaps with each counterparty equals a weighted average of the 
potential outward exposure for the person's swaps with that 
counterparty as calculated under paragraph (jjj)(3)(ii)(A) of this 
section, and that amount reduced by the ratio of net current exposure 
to gross current exposure, consistent with the following equation as 
calculated on a counterparty-by-counterparty basis:

PNet = 0.4 * PGross + 0.6 * NGR * PGross

    Where: PNet is the potential outward exposure, adjusted for 
bilateral netting, of the person's swaps with a particular 
counterparty; PGross is the potential outward exposure without 
adjustment for bilateral netting as calculated pursuant to paragraph 
(jjj)(3)(ii)(A) of this section; and NGR is the ratio of the current 
exposure arising from its swaps in the major category as calculated 
on a net basis according to paragraphs (jjj)(2)(iii) and (iv) of 
this section, divided by the current exposure arising from its swaps 
in the major category as calculated in the absence of those netting 
procedures.

    (iii) Calculation of potential outward exposure for swaps that are 
either subject to daily mark-to-market margining or are cleared by a 
registered or exempt clearing agency or derivatives clearing 
organization. For positions in swaps that are subject to daily mark-to-
market margining or that are cleared by a registered or exempt clearing 
agency or derivatives clearing organization:
    (A) Potential outward exposure equals the potential exposure that 
would be attributed to such positions using the procedures in paragraph 
(jjj)(3)(ii) of this section multiplied by:
    (1) 0.1, in the case of positions cleared by a registered or exempt 
clearing agency; or

[[Page 30750]]

    (2) 0.2, in the case of positions that are subject to daily mark-
to-market margining but that are not cleared by a registered or exempt 
clearing agency.
    (B) Solely for purposes of calculating potential outward exposure:
    (1) A swap shall be considered to be subject to daily mark-to-
market margining if, and for so long as, the counterparties follow the 
daily practice of exchanging collateral to reflect changes in the 
current exposure arising from the swap (after taking into account any 
other financial positions addressed by a netting agreement between the 
counterparties).
    (2) If the person is permitted by agreement to maintain a threshold 
for which it is not required to post collateral, the position still 
will be considered to be subject to daily mark-to-market margining for 
purposes of calculating potential outward exposure, but the total 
amount of that threshold (regardless of the actual exposure at any 
time), less any initial margin posted up to the amount of that 
threshold, shall be added to the person's aggregate uncollateralized 
outward exposure for purposes of paragraph (jjj)(1)(i)(B), (ii)(B), 
(iii)(B) or (iv)(B) of this section, as applicable.
    (3) If the minimum transfer amount under the agreement is in excess 
of $1 million, the position still will be considered to be subject to 
daily mark-to-market margining for purposes of calculating potential 
outward exposure, but the entirety of the minimum transfer amount shall 
be added to the person's aggregate uncollateralized outward exposure 
for purposes of paragraph (jjj)(1)(i)(B), (ii)(B), (iii)(B) or (iv)(B) 
of this section, as applicable.
    (4) A person may, at its discretion, calculate the potential 
outward exposure of positions in swaps that are subject to daily mark-
to-market margining in accordance with paragraph (jjj)(3)(ii) of this 
section in lieu of calculating the potential outward exposure of such 
swap positions in accordance with this paragraph (jjj)(3)(iii).
    (4) Calculation of daily average. Measures of daily average 
aggregate uncollateralized outward exposure and daily average aggregate 
potential outward exposure shall equal the arithmetic mean of the 
applicable measure of exposure at the close of each business day, 
beginning the first business day of each calendar quarter and 
continuing through the last business day of that quarter.
    (5) Inter-affiliate activities. In calculating its aggregate 
uncollateralized outward exposure and its aggregate potential outward 
exposure, the person shall not consider its swap positions with 
counterparties that are majority-owned affiliates. For these purposes 
the counterparties to a swap are majority-owned affiliates if one 
counterparty directly or indirectly owns a majority interest in the 
other, or if a third party directly or indirectly owns a majority 
interest in both counterparties to the swap, where ``majority 
interest'' is the right to vote or direct the vote of a majority of a 
class of voting securities of an entity, the power to sell or direct 
the sale of a majority of a class of voting securities of an entity, or 
the right to receive upon dissolution or the contribution of a majority 
of the capital of a partnership.
    (kkk) Hedging or mitigating commercial risk. For purposes of 
Section 1a(33) of the Act, 7 U.S.C. 1a(33) and paragraph (hhh) of this 
section, a swap position is held for the purpose of hedging or 
mitigating commercial risk when:
    (1) Such position:
    (i) Is economically appropriate to the reduction of risks in the 
conduct and management of a commercial enterprise (or of a majority-
owned affiliate of the enterprise), where the risks arise from:
    (A) The potential change in the value of assets that a person owns, 
produces, manufactures, processes, or merchandises or reasonably 
anticipates owning, producing, manufacturing, processing, or 
merchandising in the ordinary course of business of the enterprise;
    (B) The potential change in the value of liabilities that a person 
has incurred or reasonably anticipates incurring in the ordinary course 
of business of the enterprise; or
    (C) The potential change in the value of services that a person 
provides, purchases, or reasonably anticipates providing or purchasing 
in the ordinary course of business of the enterprise;
    (D) The potential change in the value of assets, services, inputs, 
products, or commodities that a person owns, produces, manufactures, 
processes, merchandises, leases, or sells, or reasonably anticipates 
owning, producing, manufacturing, processing, merchandising, leasing, 
or selling in the ordinary course of business of the enterprise;
    (E) Any potential change in value related to any of the foregoing 
arising from interest, currency, or foreign exchange rate movements 
associated with such assets, liabilities, services, inputs, products, 
or commodities; or
    (F) Any fluctuation in interest, currency, or foreign exchange rate 
exposures arising from a person's current or anticipated assets or 
liabilities; or
    (ii) Qualifies as bona fide hedging for purposes of an exemption 
from position limits under the Act; or
    (iii) Qualifies for hedging treatment under:
    (A) Financial Accounting Standards Board Accounting Standards 
Codification Topic 815, Derivatives and Hedging (formerly known as 
Statement No. 133); or
    (B) Governmental Accounting Standards Board Statement 53, 
Accounting and Financial Reporting for Derivative Instruments; and
    (2) Such position is:
    (i) Not held for a purpose that is in the nature of speculation, 
investing or trading; and
    (ii) Not held to hedge or mitigate the risk of another swap or 
security-based swap position, unless that other position itself is held 
for the purpose of hedging or mitigating commercial risk as defined by 
this rule or Sec.  240.3a67-4 of this title.
    (lll) Substantial counterparty exposure. (1) In general. For 
purposes of Section 1a(33) of the Act, 7 U.S.C. 1a(33), and paragraph 
(hhh) of this section, the term substantial counterparty exposure that 
could have serious adverse effects on the financial stability of the 
United States banking system or financial markets means a swap position 
that satisfies either of the following thresholds:
    (i) $5 billion in daily average aggregate uncollateralized outward 
exposure; or
    (ii) $8 billion in:
    (A) Daily average aggregate uncollateralized outward exposure plus
    (B) Daily average aggregate potential outward exposure.
    (2) Calculation methodology. For these purposes, the terms daily 
average aggregate uncollateralized outward exposure and daily average 
aggregate potential outward exposure shall be calculated the same way 
as is prescribed in paragraph (jjj) of this section, except that these 
amounts shall be calculated by reference to all of the person's swap 
positions, rather than by reference to a specific major swap category.
    (mmm) Financial entity; highly leveraged. (1) For purposes of 
Section 1a(33) of the Act, 7 U.S.C. 1a(33), and paragraph (hhh) of this 
section, the term financial entity means:
    (i) A security-based swap dealer;
    (ii) A major security-based swap participant;
    (iii) A commodity pool as defined in Section 1a(10) of the Act, 7 
U.S.C. 1a(10);
    (iv) A private fund as defined in Section 202(a) of the Investment

[[Page 30751]]

Advisers Act of 1940, 15 U.S.C. 80b-2(a);
    (v) An employee benefit plan as defined in paragraphs (3) and (32) 
of Section 3 of the Employee Retirement Income Security Act of 1974, 29 
U.S.C. 1002; and
    (vi) A person predominantly engaged in activities that are in the 
business of banking or financial in nature, as defined in Section 4(k) 
of the Bank Holding Company Act of 1956, 12 U.S.C. 1843(k).
    (2) For purposes of Section 1a(33) of the Act, 7 U.S.C. 1a(33), and 
paragraph (hhh) of this section, the term highly leveraged means the 
existence of a ratio of an entity's total liabilities to equity in 
excess of 12 to 1 as measured at the close of business on the last 
business day of the applicable fiscal quarter. For this purpose, 
liabilities and equity should each be determined in accordance with 
U.S. generally accepted accounting principles; provided, however, that 
a person that is an employee benefit plan, as defined in paragraphs (3) 
and (32) of Section 3 of the Employee Retirement Income Security Act of 
1974, 29 U.S.C. 1002, may exclude obligations to pay benefits to plan 
participants from the calculation of liabilities and substitute the 
total value of plan assets for equity.

Securities and Exchange Commission

    Pursuant to the Exchange Act, 15 U.S.C. 78a et seq., and 
particularly, Sections 3 and 23 thereof, and Sections 712 and 761(b) of 
the Dodd-Frank Act, the SEC is adopting Rules 3a67-1, 3a67-2, 3a67-3, 
3a67-4, 3a67-5, 3a67-6, 3a67-7, 3a71-1, and 3a71-2 under the Exchange 
Act.
    For the reasons stated in the preamble, the SEC is amending Title 
17, Chapter II, of the Code of the Federal Regulations, as follows:

PART 240--GENERAL RULES AND REGULATIONS, SECURITIES EXCHANGE ACT OF 
1934

0
3. The authority citation for part 240 is amended by adding the 
following citation in numerical order:

    Authority:  15 U.S.C. 77c, 77d, 77g, 77j, 77s, 77z-2, 77z-3, 
77eee, 77ggg, 77nnn, 77jjj, 77kkk, 78c, 78d, 78e, 78f, 78g, 78i, 
78j, 78j-1, 78k, 78k-1, 78l, 78m, 78n, 78n-1, 78o, 78o-4, 78p, 78q, 
78s, 78u-5, 78w, 78x, 78ll, 78mm, 80a-20, 80a-23, 80a-29, 80a-37, 
80b-3, 80b-4, 80b-11, and 7201 et seq., 18 U.S.C. 1350; 12 U.S.C. 
5221(e)(3), and Pub. L. 111-203, Sec.  939A, 124 Stat. 1376 (2010), 
unless otherwise noted.
* * * * *
    Sections 3a67-1 through 3a67-9 and 3a71-1 and 3a71-2 are also 
issued under Pub. L. 111-203, Sec. Sec.  712, 761(b), 124 Stat. 1841 
(2010).
* * * * *
0
4. Add an undesignated center heading and Sec. Sec.  240.3a67-1 through 
240.3a67-9 and Sec. Sec.  240.3a71-1 and 240.3a71-2 to read as follows:

Security-Based Swap Dealer and Participant Definitions

Sec.
240.3a67-1 Definition of ``major security-based swap participant.''
240.3a67-2 Categories of security-based swaps.
240.3a67-3 Definition of ``substantial position.''
240.3a67-4 Definition of ``hedging or mitigating commercial risk.''
240.3a67-5 Definition of ``substantial counterparty exposure.''
240.3a67-6 Definition of ``financial entity.''
240.3a67-7 Definition of ``highly leveraged.''
240.3a67-8 Timing requirements, reevaluation period and termination 
of status.
240.3a67-9 Calculation of major participant status by certain 
persons.
240.3a71-1 Definition of ``security-based swap dealer.''
240.3a71-2 De minimis exception.
240.3a71-2A Report regarding the ``security-based swap dealer'' and 
``major security-based swap participant'' definitions (Appendix A to 
17 CFR 240.3a71-2).
* * * * *


Sec.  240.3a67-1  Definition of ``major security-based swap 
participant.''

    (a) General. Major security-based swap participant means any 
person:
    (1) That is not a security-based swap dealer; and
    (2)(i) That maintains a substantial position in security-based 
swaps for any of the major security-based swap categories, excluding 
both positions held for hedging or mitigating commercial risk, and 
positions maintained by any employee benefit plan (or any contract held 
by such a plan) as defined in paragraphs (3) and (32) of section 3 of 
the Employee Retirement Income Security Act of 1974 (29 U.S.C. 1002) 
for the primary purpose of hedging or mitigating any risk directly 
associated with the operation of the plan;
    (ii) Whose outstanding security-based swaps create substantial 
counterparty exposure that could have serious adverse effects on the 
financial stability of the United States banking system or financial 
markets; or
    (iii) That is a financial entity that:
    (A) Is highly leveraged relative to the amount of capital such 
entity holds and that is not subject to capital requirements 
established by an appropriate Federal banking agency (as defined in 15 
U.S.C. 78c(a)(72)); and
    (B) Maintains a substantial position in outstanding security-based 
swaps in any major security-based swap category.
    (b) Scope of designation. A person that is a major security-based 
swap participant in general shall be deemed to be a major security-
based swap participant with respect to each security-based swap it 
enters into, regardless of the category of the security-based swap or 
the person's activities in connection with the security-based swap, 
unless the Commission limits the person's designation as a major 
security-based swap participant to specified categories of security-
based swaps.


Sec.  240.3a67-2  Categories of security-based swaps.

    For purposes of section 3(a)(67) of the Act, 15 U.S.C. 78c(a)(67), 
and the rules thereunder, the terms major security-based swap category, 
category of security-based swaps and any similar terms mean either of 
the following categories of security-based swaps:
    (a) Debt security-based swaps. Any security-based swap that is 
based, in whole or in part, on one or more instruments of indebtedness 
(including loans), or on a credit event relating to one or more issuers 
or securities, including but not limited to any security-based swap 
that is a credit default swap, total return swap on one or more debt 
instruments, debt swap, debt index swap, or credit spread.
    (b) Other security-based swaps. Any security-based swap not 
described in paragraph (a) of this section.


Sec.  240.3a67-3  Definition of ``substantial position.''

    (a) General. For purposes of section 3(a)(67) of the Act, 15 U.S.C. 
78c(a)(67), and Sec.  240.3a67-1, the term substantial position means 
security-based swap positions that equal or exceed either of the 
following thresholds in any major category of security-based swaps:
    (1) $1 billion in daily average aggregate uncollateralized outward 
exposure; or
    (2) $2 billion in:
    (i) Daily average aggregate uncollateralized outward exposure; plus
    (ii) Daily average aggregate potential outward exposure.
    (b) Aggregate uncollateralized outward exposure. (1) General. 
Aggregate uncollateralized outward exposure in general means the sum of 
the current exposure, obtained by marking-to-market using industry 
standard practices, of each of the person's security-based swap 
positions

[[Page 30752]]

with negative value in a major security-based swap category, less the 
value of the collateral the person has posted in connection with those 
positions.
    (2) Calculation of aggregate uncollateralized outward exposure. In 
calculating this amount the person shall, with respect to each of its 
security-based swap counterparties in a given major security-based swap 
category:
    (i) Determine the dollar value of the aggregate current exposure 
arising from each of its security-based swap positions with negative 
value (subject to the netting provisions described below) in that major 
category by marking-to-market using industry standard practices; and
    (ii) Deduct from that dollar amount the aggregate value of the 
collateral the person has posted with respect to the security-based 
swap positions.
    (iii) The aggregate uncollateralized outward exposure shall be the 
sum of those uncollateralized amounts across all of the person's 
security-based swap counterparties in the applicable major category.
    (3) Relevance of netting agreements. (i) If a person has one or 
more master netting agreements with a counterparty, the person may 
measure the current exposure arising from its security-based swaps in 
any major category on a net basis, applying the terms of those 
agreements. Calculation of current exposure may take into account 
offsetting positions entered into with that particular counterparty 
involving security-based swaps (in any security-based swap category) as 
well as swaps and securities financing transactions (consisting of 
securities lending and borrowing, securities margin lending and 
repurchase and reverse repurchase agreements), and other financial 
instruments that are subject to netting offsets for purposes of 
applicable bankruptcy law, to the extent these are consistent with the 
offsets permitted by the master netting agreements.
    (ii) Such adjustments may not take into account any offset 
associated with positions that the person has with separate 
counterparties.
    (4) Allocation of uncollateralized outward exposure. If a person 
calculates current exposure with a particular counterparty on a net 
basis, as provided by paragraph (b)(3) of this section, the amount of 
current uncollateralized exposure attributable to each ``major'' 
category of security-based swaps should be calculated according to the 
following formula:
[GRAPHIC] [TIFF OMITTED] TR23MY12.001


    Note to paragraph (b)(4).  Where: ESBS(MC) equals the 
amount of aggregate current exposure attributable to the entity's 
security-based swap positions in the ``major'' category at issue 
(either security-based credit derivatives or other security-based 
swaps); Enet total equals the entity's aggregate current 
exposure to the counterparty at issue, after accounting for the 
netting of positions and the posting of collateral; 
OTMSBS(MC) equals the current exposure associated with 
the entity's out-of-the-money positions in security-based swaps in 
the ``major'' category at issue, subject to those netting 
arrangements; and OTMSBS(O) equals the current exposure 
associated with the entity's out-of-the-money positions in the other 
``major'' category of security-based swaps, subject to those netting 
arrangements; and OTMnon-SBS equals the current exposure 
associated with the entity's out-of-the-money positions associated 
with instruments, other than security-based swaps, that are subject 
to those netting arrangements.

    (c) Aggregate potential outward exposure. (1) General. Aggregate 
potential outward exposure means the sum of:
    (i) The aggregate potential outward exposure for each of the 
person's security-based swap positions in a major security-based swap 
category that are neither cleared by a registered or exempt clearing 
agency nor subject to daily mark-to-market margining, as calculated in 
accordance with paragraph (c)(2) of this section; and
    (ii) The aggregate potential outward exposure for each of the 
person's security-based swap positions in a major security-based swap 
category that are either cleared by a registered or exempt clearing 
agency or subject to daily mark-to-market margining, as calculated in 
accordance with paragraph (c)(3) of this section.
    (2) Calculation of potential outward exposure for security-based 
swaps that are not cleared by a registered or exempt clearing agency or 
subject to daily mark-to-market margining. (i) General. (A)(1) For 
positions in security-based swaps that are not cleared by a registered 
or exempt clearing agency or subject to daily mark-to-market margining, 
potential outward exposure equals the total notional principal amount 
of those positions, multiplied by the following factors on a position-
by-position basis reflecting the type of security-based swap. For any 
security-based swap that is not of the ``debt'' type, the ``equity and 
other'' conversion factors are to be used:

------------------------------------------------------------------------
                                                                  Equity
                   Residual maturity                      Debt     and
                                                                  other
------------------------------------------------------------------------
One year or less......................................     0.10     0.06
Over one to five years................................     0.10     0.08
Over five years.......................................     0.10     0.10
------------------------------------------------------------------------

     (2) If a security-based swap is structured such that on specified 
dates any outstanding exposure is settled and the terms are reset so 
that the market value of the security-based swap is zero, the remaining 
maturity equals the time until the next reset date.
    (B) Use of effective notional amounts. If the stated notional 
amount on a position is leveraged or enhanced by the structure of the 
position, the calculation in paragraph (c)(2)(i)(A) of this section 
shall be based on the effective notional amount of the position rather 
than on the stated notional amount.
    (C) Exclusion of certain positions. The calculation in paragraph 
(c)(2)(i)(A) of this section shall exclude:
    (1) Positions that constitute the purchase of an option, such that 
the person has no additional payment obligations under the position;
    (2) Other positions for which the person has prepaid or otherwise 
satisfied all of its payment obligations; and
    (3) Positions for which, pursuant to regulatory requirement, the 
person has assigned an amount of cash or U.S. Treasury securities that 
is sufficient to pay the person's maximum possible liability under the 
position, and the person may not use that cash or those Treasury 
securities for other purposes.
    (D) Adjustment for certain positions. Notwithstanding paragraph 
(c)(2)(i)(A) of this section, the potential outward exposure associated 
with a position by which a person buys credit protection using a credit 
default swap, or associated with a position by which a person purchases 
an option for which the person retains additional payment obligations 
under the position, is capped at the net present value of the unpaid 
premiums.
    (ii) Adjustment for netting agreements. Notwithstanding paragraph 
(c)(2)(i) of this section, for positions subject to master netting 
agreements the

[[Page 30753]]

potential outward exposure associated with the person's security-based 
swaps with each counterparty equals a weighted average of the potential 
outward exposure for the person's security-based swaps with that 
counterparty as calculated under paragraph (c)(2)(i) of this section, 
and that amount reduced by the ratio of net current exposure to gross 
current exposure, consistent with the following equation as calculated 
on a counterparty-by-counterparty basis:

PNet = 0.4 x PGross + 0.6 x NGR x PGross

    Note to paragraph (c)(2)(ii): Where: PNet is the potential 
outward exposure, adjusted for bilateral netting, of the person's 
security-based swaps with a particular counterparty; PGross is the 
potential outward exposure without adjustment for bilateral netting, 
as calculated pursuant to paragraph (c)(2)(i) of this section; and 
NGR is the ratio of:
    1. The current exposure arising from its security-based swaps in 
the major category as calculated on a net basis according to 
paragraphs (b)(3) and (4) of this section, divided by
    2. The current exposure arising from its security-based swaps in 
the major category as calculated in the absence of those netting 
procedures.

    (3) Calculation of potential outward exposure for security-based 
swaps that are either cleared by a registered or exempt clearing agency 
or subject to daily mark-to-market margining. For positions in 
security-based swaps that are cleared by a registered or exempt 
clearing agency or subject to daily mark-to-market margining:
    (i) Potential outward exposure equals the potential outward 
exposure that would be attributed to such positions using the 
procedures in paragraph (c)(2) of this section, multiplied by:
    (A) 0.1, in the case of positions cleared by a registered or exempt 
clearing agency; or
    (B) 0.2, in the case of positions that are subject to daily mark-
to-market margining but that are not cleared by a registered or exempt 
clearing agency.
    (ii) Solely for purposes of calculating potential outward exposure:
    (A) A security-based swap shall be considered to be subject to 
daily mark-to-market margining if, and for as long as, the 
counterparties follow the daily practice of exchanging collateral to 
reflect changes in the current exposure arising from the security-based 
swap (after taking into account any other financial positions addressed 
by a netting agreement between the counterparties).
    (B) If the person is permitted by agreement to maintain a threshold 
for which it is not required to post collateral, the position still 
will be considered to be subject to daily mark-to-market margining for 
purposes of calculating potential outward exposure, but the total 
amount of that threshold (regardless of the actual exposure at any 
time) less any initial margin posted up to the amount of that 
threshold, shall be added to the person's aggregate uncollateralized 
outward exposure for purposes of paragraph (a)(2) of this section.
    (C) If the minimum transfer amount under the agreement is in excess 
of $1 million, the position still will be considered to be subject to 
daily mark-to-market margining for purposes of calculating potential 
outward exposure, but the entirety of the minimum transfer amount shall 
be added to the person's aggregate uncollateralized outward exposure 
for purposes of paragraph (a)(2) of this section.
    (D) A person may, at its discretion, calculate the potential 
outward exposure of positions in security-based swaps that are subject 
to daily mark-to-market margining in accordance with paragraph (c)(2) 
of this section in lieu of calculating the potential outward exposure 
of such positions in accordance with this paragraph (c)(3).
    (d) Calculation of daily average. Measures of daily average 
aggregate uncollateralized outward exposure and daily average aggregate 
potential outward exposure shall equal the arithmetic mean of the 
applicable measure of exposure at the close of each business day, 
beginning the first business day of each calendar quarter and 
continuing through the last business day of that quarter.
    (e) Inter-affiliate activities. In calculating its aggregate 
uncollateralized outward exposure and its aggregate potential outward 
exposure, a person shall not consider its security-based swap positions 
with counterparties that are majority-owned affiliates. For these 
purposes the parties are majority-owned affiliates if one party 
directly or indirectly owns a majority interest in the other, or if a 
third party directly or indirectly owns a majority interest in both 
counterparties to the security-based swap, where ``majority interest'' 
is the right to vote or direct the vote of a majority of a class of 
voting securities of an entity, the power to sell or direct the sale of 
a majority of a class of voting securities of an entity, or the right 
to receive upon dissolution or the contribution of a majority of the 
capital of a partnership.


Sec.  240.3a67-4  Definition of ``hedging or mitigating commercial 
risk.''

    For purposes of section 3(a)(67) of the Act, 15 U.S.C. 78c(a)(67), 
and Sec.  240.3a67-1, a security-based swap position shall be deemed to 
be held for the purpose of hedging or mitigating commercial risk when:
    (a)(1) Such position is economically appropriate to the reduction 
of risks that are associated with the present conduct and management of 
a commercial enterprise (or of a majority owned affiliate of the 
enterprise), or are reasonably expected to arise in the future conduct 
and management of the commercial enterprise, where such risks arise 
from:
    (i) The potential change in the value of assets that a person owns, 
produces, manufactures, processes, or merchandises or reasonably 
anticipates owning, producing, manufacturing, processing, or 
merchandising in the ordinary course of business of the enterprise (or 
of an affiliate under common control with the enterprise);
    (ii) The potential change in the value of liabilities that a person 
has incurred or reasonably anticipates incurring in the ordinary course 
of business of the enterprise (or of an affiliate under common control 
with the enterprise); or
    (iii) The potential change in the value of services that a person 
provides, purchases, or reasonably anticipates providing or purchasing 
in the ordinary course of business of the enterprise (or of an 
affiliate under common control with the enterprise);
    (2) Depending on the applicable facts and circumstances, the 
security-based swap positions described in paragraph (a)(1) of this 
section may be expected to encompass, among other positions:
    (i) Positions established to manage the risk posed by a customer's, 
supplier's or counterparty's potential default in connection with: 
Financing provided to a customer in connection with the sale of real 
property or a good, product or service; a customer's lease of real 
property or a good, product or service; a customer's agreement to 
purchase real property or a good, product or service in the future; or 
a supplier's commitment to provide or sell a good, product or service 
in the future;
    (ii) Positions established to manage the default risk posed by a 
financial counterparty (different from the counterparty to the hedging 
position at issue) in connection with a separate transaction (including 
a position involving a credit derivative, equity swap, other security-
based swap, interest rate swap, commodity swap, foreign exchange swap 
or other swap, option, or future that itself is for the purpose of 
hedging or mitigating commercial risk pursuant to this section or 17 
CFR 1.3(kkk));

[[Page 30754]]

    (iii) Positions established to manage equity or market risk 
associated with certain employee compensation plans, including the risk 
associated with market price variations in connection with stock-based 
compensation plans, such as deferred compensation plans and stock 
appreciation rights;
    (iv) Positions established to manage equity market price risks 
connected with certain business combinations, such as a corporate 
merger or consolidation or similar plan or acquisition in which 
securities of a person are exchanged for securities of any other person 
(unless the sole purpose of the transaction is to change an issuer's 
domicile solely within the United States), or a transfer of assets of a 
person to another person in consideration of the issuance of securities 
of such other person or any of its affiliates;
    (v) Positions established by a bank to manage counterparty risks in 
connection with loans the bank has made; and
    (vi) Positions to close out or reduce any of the positions 
described in paragraphs (a)(2)(i) through (a)(2)(v) of this section; 
and
    (b) Such position is:
    (1) Not held for a purpose that is in the nature of speculation or 
trading; and
    (2) Not held to hedge or mitigate the risk of another security-
based swap position or swap position, unless that other position itself 
is held for the purpose of hedging or mitigating commercial risk as 
defined by this section or 17 CFR 1.3(kkk).


Sec.  240.3a67-5  Definition of ``substantial counterparty exposure.''

    (a) General. For purposes of section 3(a)(67) of the Act, 15 U.S.C. 
78c(a)(67), and Sec.  240.3a67-1, the term substantial counterparty 
exposure that could have serious adverse effects on the financial 
stability of the United States banking system or financial markets 
means a security-based swap position that satisfies either of the 
following thresholds:
    (1) $2 billion in daily average aggregate uncollateralized outward 
exposure; or
    (2) $4 billion in:
    (i) Daily average aggregate uncollateralized outward exposure; plus
    (ii) Daily average aggregate potential outward exposure.
    (b) Calculation. For these purposes, daily average aggregate 
uncollateralized outward exposure and daily average aggregate potential 
outward exposure shall be calculated the same way as is prescribed in 
Sec.  240.3a67-3, except that these amounts shall be calculated by 
reference to all of the person's security-based swap positions, rather 
than by reference to a specific major security-based swap category.


Sec.  240.3a67-6  Definition of ``financial entity.''

    (a) General. For purposes of section 3(a)(67) of the Act, 15 U.S.C. 
78c(a)(67), and Sec.  240.3a67-1, the term financial entity means:
    (1) A swap dealer;
    (2) A major swap participant;
    (3) A commodity pool as defined in section 1a(10) of the Commodity 
Exchange Act (7 U.S.C. 1a(10));
    (4) A private fund as defined in section 202(a) of the Investment 
Advisers Act of 1940 (15 U.S.C. 80b-2(a));
    (5) An employee benefit plan as defined in paragraphs (3) and (32) 
of section 3 of the Employee Retirement Income Security Act of 1974 (29 
U.S.C. 1002); and
    (6) A person predominantly engaged in activities that are in the 
business of banking or financial in nature, as defined in section 4(k) 
of the Bank Holding Company Act of 1956 (12 U.S.C. 1843k).
    (b) Exclusion for centralized hedging facilities. (1) General. 
Notwithstanding paragraph (a) of this section, for purposes of this 
section the term financial entity shall not encompass a person that 
would be a financial entity solely as a result of the person's 
activities that facilitate hedging and/or treasury functions on behalf 
of one or more majority-owned affiliates that themselves do not 
constitute a financial entity.
    (2) Meaning of majority-owned. For these purposes the 
counterparties to a security-based swap are majority-owned affiliates 
if one counterparty directly or indirectly owns a majority interest in 
the other, or if a third party directly or indirectly owns a majority 
interest in both counterparties to the security-based swap, where 
``majority interest'' includes, but is not limited to, the right to 
vote or direct the vote of a majority of a class of voting securities 
of an entity, the power to sell or direct the sale of a majority of a 
class of voting securities of an entity, or the right to receive upon 
dissolution or the contribution of a majority of the capital of a 
partnership.


Sec.  240.3a67-7  Definition of ``highly leveraged.''

    (a) General. For purposes of section 3(a)(67) of the Act, 15 U.S.C. 
78c(a)(67), and Sec.  240.3a67-1, the term highly leveraged means the 
existence of a ratio of an entity's total liabilities to equity in 
excess of 12 to 1 as measured at the close of business on the last 
business day of the applicable fiscal quarter.
    (b) Measurement of liabilities and equity. For purposes of this 
section, liabilities and equity generally should each be determined in 
accordance with U.S. generally accepted accounting principles; 
provided, however, that a person that is an employee benefit plan, as 
defined in paragraphs (3) and (32) of section 3 of the Employee 
Retirement Income Security Act of 1974 (29 U.S.C. 1002), may, for 
purposes of this paragraph (b):
    (1) Exclude obligations to pay benefits to plan participants from 
the calculation of liabilities; and
    (2) Substitute the total value of plan assets for equity.


Sec.  240.3a67-8  Timing requirements, reevaluation period, and 
termination of status.

    (a) Timing requirements. A person that is not registered as a major 
security-based swap participant, but that meets the criteria in Sec.  
240.3a67-1 to be a major security-based swap participant as a result of 
its security-based swap activities in a fiscal quarter, will not be 
deemed to be a major security-based swap participant until the earlier 
of the date on which it submits a complete application for registration 
pursuant to section 15F of the Act (15 U.S.C. 78o-10) or two months 
after the end of that quarter.
    (b) Reevaluation period. Notwithstanding paragraph (a) of this 
section, if a person that is not registered as a major security-based 
swap participant meets the criteria in Sec.  240.3a67-1 to be a major 
security-based swap participant in a fiscal quarter, but does not 
exceed any applicable threshold by more than twenty percent in that 
quarter:
    (1) That person will not immediately be deemed a major security-
based swap participant pursuant to the timing requirements specified in 
paragraph (a) of this section; but
    (2) That person will be deemed a major security-based swap 
participant pursuant to the timing requirements specified in paragraph 
(a) of this section at the end of the next fiscal quarter if the person 
exceeds any of the applicable daily average thresholds in that next 
fiscal quarter.
    (c) Termination of status. A person that is deemed to be a major 
security-based swap participant shall continue to be deemed a major 
security-based swap participant until such time that its security-based 
swap activities do not exceed any of the daily average thresholds set 
forth within Sec.  240.3a67-

[[Page 30755]]

1 for four consecutive fiscal quarters after the date on which the 
person becomes registered as a major security-based swap participant.


Sec.  240.3a67-9  Calculation of major participant status by certain 
persons.

    A person shall not be deemed to be a major security-based swap 
participant, regardless of whether the criteria in Sec.  240.3a67-1 
otherwise would cause the person to be a major security-based swap 
participant, provided the person meets the conditions set forth in 
paragraph (a) of this section.
    (a) Conditions. (1) Caps on uncollateralized exposure and notional 
positions. (i) Maximum potential uncollateralized exposure. The express 
terms of the person's agreements or arrangements relating to security-
based swaps with its counterparties at no time would permit the person 
to maintain a total uncollateralized exposure of more than $100 million 
to all such counterparties, including any exposure that may result from 
thresholds or minimum transfer amounts established by credit support 
annexes or similar arrangements; and
    (ii) Maximum notional amount of security-based swap positions. The 
person does not maintain security-based swap positions in an effective 
notional amount of more than $2 billion in any major category of 
security-based swaps, or more than $4 billion in aggregate; or
    (2) Caps on uncollateralized exposure plus monthly calculation. (i) 
Maximum potential uncollateralized exposure. The express terms of the 
person's agreements or arrangements relating to security-based swaps 
with its counterparties at no time would permit the person to maintain 
a total uncollateralized exposure of more than $200 million to all such 
counterparties (with regard to security-based swaps and any other 
instruments by which the person may have exposure to those 
counterparties), including any exposure that may result from thresholds 
or minimum transfer amounts established by credit support annexes or 
similar arrangements; and
    (ii) Calculation of positions. (A) At the end of each month, the 
person performs the calculations prescribed by Sec. Sec.  240.3a67-3 
and 240.3a67-5 with regard to whether the aggregate uncollateralized 
outward exposure plus aggregate potential outward exposure as of that 
day constitute a substantial position in a major category of security-
based swaps, or pose substantial counterparty exposure that could have 
serious adverse effects on the financial stability of the United States 
banking system or financial markets; these calculations shall disregard 
provisions of those rules that provide for the analyses to be 
determined based on a daily average over a calendar quarter; and
    (B) Each such analysis produces thresholds of no more than:
    (1) $1 billion in aggregate uncollateralized outward exposure plus 
aggregate potential outward exposure in any major category of security-
based swaps; if the person is subject to Sec.  240.3a67-3(a)(2)(iii), 
by virtue of being a highly leveraged financial entity that is not 
subject to capital requirements established by an appropriate Federal 
banking agency, this analysis shall account for all of the person's 
security-based swap positions in that major category (without excluding 
hedging positions), otherwise this analysis shall exclude the same 
hedging and related positions that are excluded from consideration 
pursuant to Sec.  240.3a67-3(a)(2)(i); or
    (2) $2 billion in aggregate uncollateralized outward exposure plus 
aggregate potential outward exposure (without any positions excluded 
from the analysis) with regard to all of the person's security-based 
swap positions.
    (3) Calculations based on certain information. (i) At the end of 
each month:
    (A)(1) The person's aggregate uncollateralized outward exposure 
with respect to its security-based swap positions is less than $500 
million with respect to each of the major security-based swap 
categories; and
    (2) The sum of the amount calculated under paragraph 
(a)(3)(i)(A)(1) of this section with respect to each major security-
based swap category and the total notional principal amount of the 
person's security-based swap positions in each such major security-
based swap category, adjusted by the multipliers set forth in Sec.  
240.3a67-3(c)(2)(i)(A) on a position-by-position basis reflecting the 
type of security-based swap, is less than $1 billion with respect to 
each of the major security-based swap categories; or
    (B)(1) The person's aggregate uncollateralized outward exposure 
with respect to its security-based swap positions across all major 
security-based swap categories is less than $500 million; and
    (2) The sum of the amount calculated under paragraph 
(a)(3)(i)(B)(1) of this section and the product of the total effective 
notional principal amount of the person's security-based swap positions 
in all major security-based swap categories multiplied by 0.10 is less 
than $1 billion.
    (ii) For purposes of the calculations set forth in paragraph 
(a)(3)(i) of this section:
    (A) The person's aggregate uncollateralized outward exposure for 
positions held with security-based swap dealers shall be equal to such 
exposure reported on the most recent reports of such exposure received 
from such security-based swap dealers; and
    (B) The person's aggregate uncollateralized outward exposure for 
positions that are not reflected in any report of exposure from a 
security-based swap dealer (including all security-based swap positions 
it holds with persons other than security-based swap dealers) shall be 
calculated in accordance with Sec.  240.3a67-3(b)(2).
    (b) For purposes of the calculations set forth by this section, the 
person shall use the effective notional amount of a position rather 
than the stated notional amount of the position if the stated notional 
amount is leveraged or enhanced by the structure of the position.
    (c) No presumption shall arise that a person is required to perform 
the calculations needed to determine if it is a major security-based 
swap participant, solely by reason that the person does not meet the 
conditions specified in paragraph (a) of this section.


Sec.  240.3a71-1  Definition of ``security-based swap dealer.''

    (a) General. The term security-based swap dealer in general means 
any person who:
    (1) Holds itself out as a dealer in security-based swaps;
    (2) Makes a market in security-based swaps;
    (3) Regularly enters into security-based swaps with counterparties 
as an ordinary course of business for its own account; or
    (4) Engages in any activity causing it to be commonly known in the 
trade as a dealer or market maker in security-based swaps.
    (b) Exception. The term security-based swap dealer does not include 
a person that enters into security-based swaps for such person's own 
account, either individually or in a fiduciary capacity, but not as a 
part of regular business.
    (c) Scope of designation. A person that is a security-based swap 
dealer in general shall be deemed to be a security-based swap dealer 
with respect to each security-based swap it enters into, regardless of 
the type, class, or category of the security-based swap or the person's 
activities in connection with the security-based swap, unless the 
Commission limits the person's

[[Page 30756]]

designation as a security-based swap dealer to specified types, 
classes, or categories of security-based swaps or specified activities 
of the person in connection with security-based swaps.
    (d) Inter-affiliate activities. (1) General. In determining whether 
a person is a security-based swap dealer, that person's security-based 
swaps with majority-owned affiliates shall not be considered.
    (2) Meaning of majority-owned. For these purposes the 
counterparties to a security-based swap are majority-owned affiliates 
if one counterparty directly or indirectly owns a majority interest in 
the other, or if a third party directly or indirectly owns a majority 
interest in both counterparties to the security-based swap, where 
``majority interest'' is the right to vote or direct the vote of a 
majority of a class of voting securities of an entity, the power to 
sell or direct the sale of a majority of a class of voting securities 
of an entity, or the right to receive upon dissolution or the 
contribution of a majority of the capital of a partnership.


Sec.  240.3a71-2  De minimis exception.

    (a) Requirements. For purposes of section 3(a)(71) of the Act (15 
U.S.C. 78c(a)(71)) and Sec.  240.3a71-1, a person that is not currently 
registered as a security-based swap dealer shall be deemed not to be a 
security-based swap dealer, and, therefore, shall not be subject to 
section 15F of the Act (15 U.S.C. 78o-10) and the rules, regulations 
and interpretations issued thereunder, as a result of security-based 
swap dealing activity that meets the following conditions:
    (1) Notional thresholds. The security-based swap positions 
connected with the dealing activity in which the person--or any other 
entity controlling, controlled by or under common control with the 
person--engages over the course of the immediately preceding 12 months 
(or following the effective date of final rules implementing section 
3(a)(68) of the Act (15 U.S.C. 78c(a)(68)) if that period is less than 
12 months) have:
    (i) An aggregate gross notional amount of no more than $3 billion, 
subject to a phase-in level of an aggregate gross notional amount of no 
more than $8 billion applied in accordance with paragraph (a)(2)(i) of 
this section, with regard to credit default swaps that constitute 
security-based swaps;
    (ii) An aggregate gross notional amount of no more than $150 
million, subject to a phase-in level of an aggregate gross notional 
amount of no more than $400 million applied in accordance with 
paragraph (a)(2)(i) of this section, with regard to security-based 
swaps not described in paragraph (a)(1)(i) of this section; and
    (iii) An aggregate gross notional amount of no more than $25 
million with regard to all security-based swaps in which the 
counterparty is a special entity (as that term is defined in section 
15F(h)(2)(C) of the Act (15 U.S.C. 78o-10(h)(2)(C)).
    (2) Phase-in procedure. (i) Phase-in period. For purposes of 
paragraphs (a)(1)(i) and (ii) of this section, a person that engages in 
security-based swap dealing activity that does not exceed either of the 
phase-in levels set forth in paragraphs (a)(1)(i) and (ii) of this 
section, as applicable, shall be deemed not to be a security-based swap 
dealer, and, therefore, shall not be subject to Section 15F of the Act 
(15 U.S.C. 78o-10) and the rules, regulations and interpretations 
issued thereunder, as a result of its security-based swap dealing 
activity, until the ``phase-in termination date'' established as 
provided in paragraph (a)(2)(ii) of this section; provided, however, 
that this phase-in period shall not be available to the extent that a 
person engages in security-based swap dealing activity with 
counterparties that are natural persons, other than natural persons who 
qualify as eligible contract participants by virtue of section 
1a(18)(A)(xi)(II) of the Commodity Exchange Act, (7 U.S.C. 
1a(18)(A)(xi)(II)). The Commission shall announce the phase-in 
termination date on the Commission Web site and publish such date in 
the Federal Register.
    (ii) Establishment of phase-in termination date. (A) Nine months 
after the publication of the staff report described in Appendix A of 
this section, and after giving due consideration to that report and any 
associated public comment, the Commission may either:
    (1) Terminate the phase-in period set forth in paragraph (a)(2)(i) 
of this section, in which case the phase-in termination date shall be 
established by the Commission by order published in the Federal 
Register; or
    (2) Determine that it is necessary or appropriate in the public 
interest to propose through rulemaking an alternative to the $3 billion 
and $150 million amounts set forth in paragraphs (a)(1)(i) and (ii) of 
this section, as applicable, that would constitute a de minimis 
quantity of security-based swap dealing in connection with transactions 
with or on behalf of customers within the meaning of section 
3(a)(71)(D) of the Act, (15 U.S.C. 78c(a)(71)(D)), in which case the 
Commission shall by order published in the Federal Register provide 
notice of such determination to propose through rulemaking an 
alternative, which order shall also establish the phase-in termination 
date.
    (B) If the phase-in termination date has not been previously 
established pursuant to paragraph (a)(2)(ii)(A) of this section, then 
in any event the phase-in termination date shall occur five years after 
the data collection initiation date defined in paragraph (a)(2)(iii) of 
this section.
    (iii) Data collection initiation date. The term ``data collection 
initiation date'' shall mean the date that is the later of: the last 
compliance date for the registration and regulatory requirements for 
security-based swap dealers and major security-based swap participants 
under Section 15F of the Act (15 U.S.C. 78o-10); or the first date on 
which compliance with the trade-by-trade reporting rules for credit-
related and equity-related security-based swaps to a registered 
security-based swap data repository is required. The Commission shall 
announce the data collection initiation date on the Commission Web site 
and publish such date in the Federal Register.
    (3) Use of effective notional amounts. For purposes of paragraph 
(a)(1) of this section, if the stated notional amount of a security-
based swap is leveraged or enhanced by the structure of the security-
based swap, the calculation shall be based on the effective notional 
amount of the security-based swap rather than on the stated notional 
amount.
    (b) Registration period for persons that no longer can take 
advantage of the exception. A person that has not registered as a 
security-based swap dealer by virtue of satisfying the requirements of 
paragraph (a) of this section, but that no longer can take advantage of 
the de minimis exception provided for in paragraph (a) of this section, 
will be deemed not to be a security-based swap dealer under section 
3(a)(71) of the Act (15 U.S.C. 78c(a)(71)) and subject to the 
requirements of section 15F of the Act (15 U.S.C. 78o-10) and the 
rules, regulations and interpretations issued thereunder until the 
earlier of the date on which it submits a complete application for 
registration pursuant to section 15F(b) (15 U.S.C. 78o-10(b)) or two 
months after the end of the month in which that person becomes no 
longer able to take advantage of the exception.
    (c) Applicability to registered security-based swap dealers. A 
person who currently is registered as a security-based swap dealer may 
apply to withdraw that registration, while continuing to engage in 
security-based swap dealing activity in reliance on this

[[Page 30757]]

section, so long as that person has been registered as a security-based 
swap dealer for at least 12 months and satisfies the conditions of 
paragraph (a) of this section.
    (d) Future adjustments to scope of the de minimis exception. The 
Commission may by rule or regulation change the requirements of the de 
minimis exception described in paragraphs (a) through (c) of this 
section.
    (e) Voluntary registration. Notwithstanding paragraph (a) of this 
section, a person that chooses to register with the Commission as a 
security-based swap dealer shall be deemed to be a security-based swap 
dealer, and, therefore, shall be subject to Section 15F of the Act (15 
U.S.C 78o-10) and the rules, regulations and interpretations issued 
thereunder.


Sec.  240.3a71-2A  Report regarding the ``security-based swap dealer'' 
and ``major security-based swap participant'' definitions (Appendix A 
to 17 CFR 240.3a71-2).

    Appendix A to Sec.  240.3a71-2 sets forth guidelines applicable to 
a report that the Commission has directed its staff to make in 
connection with the rules and interpretations further defining the 
Act's definitions of the terms ``security-based swap dealer'' 
(including the de minimis exception to that definition) and ``major 
security-based swap participant.'' The Commission intends to consider 
this report in reviewing the effect and application of these rules 
based on the evolution of the security-based swap market following the 
implementation of the registration and regulatory requirements of 
Section 15F of the Act (15 U.S.C. 78o-10). The report may also be 
informative as to potential changes to the rules further defining those 
terms. In producing this report, the staff shall consider security-
based swap data collected by the Commission pursuant to other Title VII 
rules, as well as any other applicable information as the staff may 
determine to be appropriate for its analysis.
    (a) Report topics. As appropriate, based on the availability of 
data and information, the report should address the following topics:
    (1) De minimis exception. In connection with the de minimis 
exception to the definition of ``security-based swap dealer,'' the 
report generally should assess whether any of the de minimis thresholds 
set forth in paragraph (a)(1) of Sec.  240.3a71-2 should be increased 
or decreased;
    (2) General security-based swap dealer analysis. In connection with 
the definition of ``security-based swap dealer,'' the report generally 
should consider the factors that are useful for identifying security-
based swap dealing activity, including the application of the dealer-
trader distinction for that purpose, and the potential use of more 
objective tests or safe harbors as part of the analysis;
    (3) General major security-based swap participant analysis. In 
connection with the definition of ``major security-based swap 
participant,'' the report generally should consider the tests used to 
identify the presence of a ``substantial position'' in a major category 
of security-based swaps, and the tests used to identify persons whose 
security-based swap positions create ``substantial counterparty 
exposure,'' including the potential use of alternative tests or 
thresholds;
    (4) Commercial risk hedging exclusion. In connection with the 
definition of ``major security-based swap participant,'' the report 
generally should consider the definition of ``hedging or mitigating 
commercial risk,'' including whether that latter definition 
inappropriately permits certain positions to be excluded from the 
``substantial position'' analysis, and whether the continued 
availability of the exclusion for such hedging positions should be 
conditioned on a person assessing and documenting the hedging 
effectiveness of those positions;
    (5) Highly leveraged financial entities. In connection with the 
definition of ``major security-based swap participant,'' the report 
generally should consider the definition of ``highly leveraged,'' 
including whether alternative approaches should be used to identify 
highly leveraged financial entities;
    (6) Inter-affiliate exclusions. In connection with the definitions 
of ``security-based swap dealer'' and ``major security-based swap 
participant,'' the report generally should consider the impact of rule 
provisions excluding inter-affiliate transactions from the relevant 
analyses, and should assess potential alternative approaches for such 
exclusions; and
    (7) Other topics. Any other analysis of security-based swap data 
and information the Commission or the staff deem relevant to this rule.
    (b) Timing of report. The report shall be completed no later than 
three years following the data collection initiation date, established 
pursuant to Sec.  240.3a71-2(a)(2)(iii).
    (c) Public comment on the report. Following completion of the 
report, the report shall be published in the Federal Register for 
public comment.

    Dated: April 27, 2012.

    By the Commodity Futures Trading Commission.
David A. Stawick,
Secretary.
    Dated: April 27, 2012.

    By the Securities and Exchange Commission.
Elizabeth M. Murphy,
Secretary.

    Note:  The following appendices will not appear in the Code of 
Federal Regulations:

Appendices by the Commodity Futures Trading Commission to Joint Final 
Rule Entitled ``Further Definition of `Swap Dealer,' `Security-Based 
Swap Dealer,' `Major Swap Participant,' `Major Security-Based Swap 
Participant' and `Eligible Contract Participant.' ''--Commission Voting 
Summary and Statements of Commissioners

Appendix 1--Commodity Futures Trading Commission Voting Summary

    On this matter, Chairman Gensler and Commissioners Sommers, 
Chilton and Wetjen voted in the affirmative; Commissioner O'Malia 
voted in the negative.

Appendix 2--Statement of Chairman Gensler

    I support the final rule to further define entities, which is 
pivotal to lowering risk that swap dealers may pose to the rest of 
the economy. The entities rule fulfills Congress' direction to 
further define the terms ``swap dealer,'' ``major swap participant'' 
and ``eligible contract participant'' and appropriately addresses 
the many comments we received. It will provide essential direction 
to market participants on whether they will be required to register.
    Regulating banks and other firms that deal in derivatives as 
swap dealers is central to financial reform. Leading up to the 
financial crisis, it was assumed by many that swap dealers were 
largely regulated. The 2008 crisis revealed the inadequacy of this 
approach: While banks were regulated for safety and soundness, 
including their lending activities, there was no comprehensive 
regulation of their swap dealing activity. Similarly, bank 
affiliates dealing in swaps, and subsidiaries of insurance and 
investment bank holding companies dealing in swaps, were not subject 
to specific regulation of their swap dealing activities under U.S. 
law, and thus often had ineffective or no oversight.
    A prime example of this fact was AIG. AIG was a holding company 
with a number of regulated insurance companies, but its unregulated 
swaps subsidiary brought down the company and helped to nearly 
topple the U.S. economy.
    The final rule gives market participants guidance on the Dodd-
Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank 
Act) definition of swap dealer:
     First, it does so by allowing market participants to 
draw on useful precedents developed by the SEC in the traditional

[[Page 30758]]

securities market to help distinguish between dealing and trading.
     Second, it does so by providing further clarity on the 
Dodd-Frank Act's term ``makes a market in swaps'' by focusing on 
entities that routinely seek to profit by accommodating other market 
participants' demand for swaps.
     Third, it does so by clarifying another key term 
``regular business,'' focusing on whether a person has an 
identifiable swap dealing business.
     Fourth, it does so by fulfilling Congress' mandate that 
swaps entered into by an insured depository institution in 
connection with originating a loan are not to be considered dealing 
activity.
     Fifth, it does so by providing direction on the 
distinction between hedging and dealing and within this provides a 
specific rule for swaps that hedge price risk associated with a 
physical commodity.
     Sixth, it does so by clarifying that a swap between an 
agricultural cooperative or a cooperative financial institution and 
its members does not constitute dealing.
     Seventh, it does so by setting a de minimis threshold 
for swap dealing, as directed by Congress. The threshold is $3 
billion total, across all asset classes, subject to a phase in level 
of $8 billion. As we proposed, the final rule would define as a swap 
dealer any entity with more than $25 million of dealing activity 
with pension funds and municipals--so-called ``special entities.''
    True to congressional intent, end-users other than those 
genuinely making markets in swaps won't be required to register as 
swap dealers. The swap dealer definition benefited from the many 
comments from end-users who use swaps to hedge their risk.
    As the swap dealing market is dominated by large entities, 
though, I believe that the final swap dealer definition will 
encompass the vast majority of swap dealing activity, as Congress 
had intended. For those who question the level of the de minimis, we 
considered the threshold in the context of an overall $300 trillion 
notional amount U.S. swaps market. Further, the statute defines swap 
dealing by referencing ``making a market in swaps'' and conducting a 
``regular business'' in swaps. The $3 billion threshold in the rule 
represents, on average, $12 million a trading day, with the phase-in 
of $8 billion representing, on average, $32 million notional amount 
per trading day. Putting this in perspective, the interest rate swap 
market, transacts, on average, over $500 billion notional amount per 
day. As further reference, the futures markets for crude oil traded 
this year, on average, $65 billion of notional amount per day.
    During this phase-in period the Commissions will collect and 
analyze data to evaluate the appropriate de minimis threshold.
    Another question that has been raised is whether the swap dealer 
definition should appropriately be activities-based or relate to how 
an entity is classified. The final rule is consistent with 
Congressional intent that we take an activities-based approach.
    Though many of these large swap dealers are financial entities, 
Congress anticipated that some non-banks would be registered as swap 
dealers. Congress provided in Dodd-Frank that capital and margin for 
bank swap dealers would be set by the bank regulators, but for non-
bank swap dealers, by the CFTC. Instructive in this regard is the 
list of primary dealers on the International Swaps and Derivatives 
Association's (ISDA) Web site, which includes a number of non-bank 
dealers. The Association describes as meeting that designation an 
entity ``that deals in derivatives as part of its business.'' 
Congress closed the so-called ``Enron loophole,'' which let traders 
evade oversight by using electronic trading platforms. But it is 
important to recall that Enron was also a swap dealer. Congress did 
not intend to create a new type of loophole in its place.
    Congress drafted the swap dealer definition recognizing the fact 
that some entities are involved in swap dealing activities, as well 
as other lines of business. Section 1a(49)(C) provides that an 
entity is a swap dealer only if it engages in swap dealing as ``a 
regular business.'' But it does not say that swap dealing must be 
its only regular business. Further, section 1a(49)(B) specifically 
provides for the regulation of a single entity as a swap dealer for 
one part of its business and not for the other part of its business. 
Given the business realities reflected in the statutory language, 
there is no compelling reason to think that an entities-based 
approach would better interpret the statute or that it would, in 
practice, be simpler than an approach based on what a business 
actually does.
    The rule also further defines the term ``major swap 
participant.'' Relying on Congress' three-prong test, this category 
is clearly limited to only those entities with swaps positions that 
pose a risk large enough to threaten the U.S. financial system.
    The further definition of the term ``eligible contract 
participant'' provides guidance regarding who is eligible to 
transact swaps off of an exchange. Based upon the many comments 
received, we incorporated further guidance to ensure that small 
businesses and real estate developers can continue to have access to 
swaps to hedge commercial risks. The final rule also clarifies how 
the eligible contract participant definition applies to certain 
foreign exchange transactions conducted by commodity pools.

Appendix 3--Statement of Commissioner O'Malia

In General

    I respectfully dissent from the Commodity Futures Trading 
Commission's (the ``Commission'' or ``CFTC'') approval today of the 
Entities Rule,\1\ which is a joint final and interim final rule with 
the Securities and Exchange Commission (``SEC'') under the Dodd-
Frank Wall Street Reform and Consumer Protection Act (the ``Dodd-
Frank Act'').\2\ I have a number of concerns with each definition in 
the CFTC Entities Rule. However, this dissent focuses on the ``swap 
dealer'' definition.
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    \1\ Further Definition of ``Swap Dealer,'' ``Security-Based Swap 
Dealer,'' ``Major Swap Participant,'' ``Major Security-Based Swap 
Participant,'' and ``Eligible Contract Participant;'' Final Rule, 
(to be codified at 17 CFR part 1), available at [------------]. As 
stated below, this final rule and interim final rule is joint 
between the Commission and the SEC. Therefore, within this dissent, 
(i) the term ``Entities Rule'' refers to the entire rule, (ii) the 
term ``CFTC Entities Rule'' refers to only the CFTC portion of such 
rule, and (iii) the term ``SEC Entities Rule'' refers to the SEC 
portion of such rule.
    \2\ Dodd-Frank Wall Street Reform and Consumer Protection Act, 
Public Law 111-203, 124 Stat. 1376 (2010).
---------------------------------------------------------------------------

    Preliminarily, in its proposal,\3\ the Commission ignored basic 
canons of statutory construction \4\ in defining ``swap dealer.'' 
\5\ Specifically, the statutory definition has four clauses, 
lettered (A) through (D). As discussed below, the Commission defined 
``swap dealer'' as encompassed only within CEA section 1a(49)(A). 
Thus, the Commission advanced a definition focusing on activities, 
rather than

[[Page 30759]]

the entities conducting these activities.\6\ The Commission then 
minimized the other clauses of the definition. Specifically, the 
Commission characterized CEA section 1a(49)(C) as an ``exception'' 
for certain activities. The Commission also characterized CEA 
section 1a(49)(B) as only authorizing ``limited designation.'' \7\
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    \3\ See Further Definition of ``Swap Dealer,'' ``Security-Based 
Swap Dealer,'' ``Major Swap Participant,'' ``Major Security-Based 
Swap Participant,'' and ``Eligible Contract Participant;'' Proposed 
Rule, 75 FR 80174 (Dec. 21, 2010) (the ``Proposal'').
    \4\ The canons of statutory construction are ``important rules 
and conventions'' that the judiciary applies to determine the 
meaning of statutory provisions. Congressional Research Service, 
Report for Congress, Statutory Interpretation: General Principles 
and Recent Trends, updated August 31, 2008 (the ``CRS Report'') 
(Summary). In general, it behooves agencies (such as the Commission) 
to adhere to such canons so that its regulations, if subject to 
legal challenge, would be more likely to survive judicial scrutiny. 
In the CFTC Entities Rule, the Commission acknowledges the 
importance of canons of statutory construction, since it cites to 
certain canons in determining the application of its ``eligible 
contract participant'' definition. See Section III(B)(4) of the CFTC 
Entities Rule.
    \5\ The statutory definition of ``swap dealer'' can be found in 
section 1a(49) of the Commodity Exchange Act (the ``CEA''), 7 U.S.C. 
1a(49). For purposes of reference, the text of CEA section 1a(49) is 
as follows:
    ``(49) SWAP DEALER.--
    ``(A) IN GENERAL.--The term `swap dealer' means any person who--
    ``(i) holds itself out as a dealer in swaps;
    ``(ii) makes a market in swaps;
    ``(iii) regularly enters into swaps with counterparties as an 
ordinary course of business for its own account; or
    ``(iv) engages in any activity causing the person to be commonly 
known in the trade as a dealer or market maker in swaps, provided 
however, in no event shall an insured depository institution be 
considered to be a swap dealer to the extent it offers to enter into 
a swap with a customer in connection with originating a loan with 
that customer.
    ``(B) INCLUSION.--A person may be designated as a swap dealer 
for a single type or single class or category of swap or activities 
and considered not to be a swap dealer for other types, classes, or 
categories of swaps or activities.
    ``(C) EXCEPTION.--The term `swap dealer' does not include a 
person that enters into swaps for such person's own account, either 
individually or in a fiduciary capacity, but not as a part of a 
regular business.
    ``(D) DE MINIMIS EXCEPTION.--The Commission shall exempt from 
designation as a swap dealer an entity that engages in a de minimis 
quantity of swap dealing in connection with transactions with or on 
behalf of its customers.
    The Commission shall promulgate regulations to establish factors 
with respect to the making of this determination to exempt.''
    \6\ See Proposed Rule; 75 FR at 80175, 80179 (stating that ``The 
Dodd-Frank Act defines the terms `swap dealer' * * * in terms of 
whether a person engages in certain types of activities involving 
swaps or security-based swaps * * * Based on the plain meaning of 
the statutory definition, so long as a person engages in dealing 
activity that is not de minimis, as discussed below, the person is a 
swap dealer * * *'').
    \7\ The following example illustrates the difference between (i) 
an ``exception'' and (ii) an ``exclusion.'' Imagine a circle 
entitled ``swap dealer.'' ``Exceptions'' are circles within the 
``swap dealer'' circle. In essence, entities within those circles 
are subcategories of ``swap dealer'' permitted special treatment. 
``Exclusions'' are circles entirely separate from the ``swap 
dealer'' circle. In essence, entities within those circles are not 
``swap dealers'' in the first instance. As described below, CEA 
section 1a(49)(C), 7 U.S.C. 1a(49)(C), provides a mandatory 
``exclusion'' from the ``swap dealer'' definition for--at a 
minimum--non-financial entities that do not have ``a regular 
business'' of entering into swap transactions. To be clear, this 
``exclusion'' applies to entities, and not solely to their 
activities. Similarly, CEA section 1a(49)(B), 7 U.S.C. 1a(49)(B), 
provides a discretionary ``exclusion'' from the ``swap dealer'' 
definition (rather than just ``limited designation,'' as the 
Commission contends).
---------------------------------------------------------------------------

    I have always disagreed with the Proposal. By focusing on the 
activities in CEA section 1a(49)(A), the Commission essentially used 
the ``swap dealer'' definition to capture commercial end-users.\8\ 
Congress clearly precluded this result. As described below, CEA 
section 1a(49)(C) provides a mandatory exclusion for commercial end-
users.\9\ Alternatively, CEA section 1a(49)(B) permits the 
Commission to exercise its discretion to exclude commercial end-
users, so long as the Commission articulates a rational basis for 
such differential treatment.\10\ The Commission has many reasons for 
exercising its discretion, including certain statutory reasons.
---------------------------------------------------------------------------

    \8\ See, e.g., Opening Statement, Sixth Series of Proposed 
Rulemakings under the Dodd-Frank Act, Dec. 1, 2010, available at 
https://www.cftc.gov/PressRoom/SpeechesTestimony/omaliastatement120110; and Jobs on Main Street vs. Wall Street: The 
Choice Should be Clear, 2011 Futures Industry Association Energy 
Forum, New York, Keynote Address, Sept. 14, 2011, available at 
https://www.cftc.gov/PressRoom/SpeechesTestimony/opaomalia-8.
    \9\ See supra note 5 for the exact text of CEA section 
1a(49)(C), 7 U.S.C. 1a(49)(C). See also supra note 7 for an 
explanation of the difference between (i) an ``exception'' and (ii) 
an ``exclusion.'' The collapse of CEA section 1a(49)(C) (referencing 
``a regular business'') into CEA section 1a(49)(A)(iii), 7 U.S.C. 
1a(49)(A)(iii) (referencing ``an ordinary course of business''), 
illustrates that the Commission still considers entities within CEA 
section 1a(49)(C) as subcategories of ``swap dealers,'' absent 
Commission largesse.
    \10\ Id. for the exact text of CEA section 1a(49)(B), 7 U.S.C. 
1a(49)(B).
---------------------------------------------------------------------------

    Today, the Commission has erected the CFTC Entities Rule on the 
infirm scaffold of the Proposal. To be sure, the Commission has 
performed astonishing contortions to afford greater certainty to 
commercial end-users.\11\ However, the Commission could have 
provided equivalent or superior certainty by properly construing CEA 
sections 1a(49)(C) and (B), either initially or in a re-proposal. By 
preserving and furthering the statutory misconstructions in the 
Proposal, the CFTC Entities Rule may ultimately provide illusory 
comfort. Therefore, I cannot support the CFTC Entities Rule.
---------------------------------------------------------------------------

    \11\ In the CFTC Entities Rule, the Commission departs from the 
Proposal in the following ways, among others: (i) acknowledging that 
there is a difference between dealing, trading, and hedging; (ii) 
setting forth an explicit exception for swaps that an entity enters 
into in its capacity as a floor trader (as defined in CEA section 
1a(23), 7 U.S.C. 1a(23)); (iii) providing another explicit exception 
for certain hedging activities; (iv) providing an exception for 
swaps between majority-owned affiliates; and (iv) setting forth a 
phase-in period with a higher de minimis threshold.
---------------------------------------------------------------------------

The ``Swap Dealer'' Definition: Fundamental Misconstruction

 CEA section 1a(49)(A): Not the Entire ``Swap Dealer'' 
Definition

    A statute should be read as a ``harmonious whole.'' \12\ This 
statement is a basic canon of statutory construction.\13\ The 
Commission has failed to follow such canon in defining ``swap 
dealer.''
---------------------------------------------------------------------------

    \12\ See, e.g., the CRS Report, p. CRS-2.
    \13\ Id.
---------------------------------------------------------------------------

    As mentioned above, in the CFTC Entities Rule (as in the 
Proposal), the Commission insists that CEA section 1a(49)(A) is the 
entirety of the ``swap dealer'' definition. According to the 
Commission, any entity engaged in any activity enumerated in CEA 
section 1a(49)(A) is a ``swap dealer'' \14\ (unless otherwise 
``excepted'').\15\ Specifically, the Commission states: ``The Dodd-
Frank Act definitions of the term `swap dealer' * * * focus on 
whether a person engages in particular types of activities involving 
swaps * * *.'' \16\ Also, the Commission states: ``The CEA * * * 
[definition] in general encompass persons that engage in any of the 
[activities in CEA section 1a(49)(A)].'' \17\ Finally, the 
Commission characterizes the activities in CEA section 1a(49)(A) as 
``dealer activities.'' \18\
---------------------------------------------------------------------------

    \14\ As mentioned above, CEA section 1a(49)(A), 7 U.S.C. 
1a(49)(A), states that the term ``swap dealer'' means ``any person 
who--(i) holds itself out as a dealer in swaps; (ii) makes a market 
in swaps; (iii) regularly enters into swaps with counterparties as 
an ordinary course of business for its own account; or (iv) engages 
in any activity causing the person to be commonly known in the trade 
as a dealer or market maker in swaps.''
    \15\ See supra note 9.
    \16\ Section II of the CFTC Entities Rule.
    \17\ Id.
    \18\ Id.
---------------------------------------------------------------------------

 CEA section 1a(49)(C): Mandatory Exclusion for Entities

    CEA section 1a(49) contradicts in both its language and 
structure the Commission's focus on the activities of CEA section 
1a(49)(A). Specifically, CEA section 1a(49)(C), when properly 
construed, sets forth a mandatory exclusion that focuses on the 
characteristics of an entity, and not exclusively on its activities. 
CEA section 1a(49)(C) states: ``The term `swap dealer' does not 
include a person that enters into swaps for such person's own 
account, either individually or in a fiduciary capacity, but not as 
part of a regular business.''
    First, CEA section 1a(49)(C) is as central to the ``swap 
dealer'' definition as CEA section 1a(49)(A). CEA section 1a(49)(C) 
begins with ``The term `swap dealer' does not include * * *''. In 
comparison, CEA section 1a(49)(A) begins with ``The term `swap 
dealer' means * * *''. Therefore, according to their plain language, 
CEA section 1a(49)(C) and CEA section 1a(49)(A) are equal and 
opposite of each other. In essence, CEA section 1a(49)(C) sets forth 
the exclusion criteria for the ``swap dealer'' definition, whereas 
CEA section 1a(49)(A) sets forth the inclusion criteria.
    Second, CEA section 1a(49)(C) focuses on the characteristics of 
entities, and not solely on their activities. CEA section 1a(49)(C) 
states that ``[t]he term `swap dealer' does not include a person 
that enters into swaps * * * not as part of a regular business.'' In 
contrast, CEA section 1a(49)(A)(iii) states that the ``swap dealer'' 
definition encompasses any person that ``regularly enters into swaps 
with counterparties as an ordinary course of business for its own 
account.'' If the Commission is correct in presuming that CEA 
section 1a(49)(A) focuses on activities, then the phrase ``regularly 
enters into swaps * * * as an ordinary course of business'' must 
refer to an activity. However, Congress used different words in CEA 
section 1a(49)(C). According to a basic canon of statutory 
construction, when Congress uses different words, it intends 
different meanings. In other words, a court should strive to give 
effect to every word of a statute.\19\
---------------------------------------------------------------------------

    \19\ The CRS Report, p. CRS-14 (stating that ``A basic principle 
of statutory construction is that courts should `give effect, if 
possible to every clause and word of a statute, avoiding, if it may 
be, any construction which implies that the legislature was ignorant 
of the meaning of the language it employed.'' (quoting Montclair v. 
Ramsdell, 107 U.S. 147, 152 (1883)). See also the CRS Report, CRS-
12, footnote 62 (discussing the ``modern variant'' of this canon).
---------------------------------------------------------------------------

    The Commission could have easily given effect to every word of 
CEA section 1a(49)(C), while according the same respect to CEA 
section 1a(49)(A)(iii). Juxtaposing CEA section 1a(49)(C) and CEA 
section 1a(49)(A)(iii), the following construction emerges: a 
``person'' (i.e., an entity) is not a ``swap dealer'' if it enters 
into swaps for ``its own account'' (i.e., as principal) in the 
``ordinary course of business'' (i.e., normally while conducting 
business), provided that entering into these swaps is not its 
``regular business'' (i.e., entering into swaps is ancillary to its 
core business).\20\
---------------------------------------------------------------------------

    \20\ As mentioned below, certain financial entities may also 
satisfy these criteria, such as ``special entities'' (as defined in 
CEA section 4s(h)(2)(C), 7 U.S.C. 6s(h)(2)(C) (e.g., certain 
employee benefit plans covered by the Employee Retirement Income 
Security Act of 1974 (``ERISA'')). If the Commission wanted to 
prevent other financial entities from abusing CEA section 1a(49)(C), 
7 U.S.C. 1a(49)(C), the Commission could have preliminarily limited 
the exclusion to commercial end-users (or other entities that the 
Commission determines could be excluded based on a holistic reading 
of the Dodd-Frank Act and the CEA, including small financial 
institutions as delineated in CEA section 2(h)(7)(C), 7 U.S.C. 
2(h)(7)(C)). Additionally, if the Commission wanted to prevent 
commercial end-users (or such other entities) from abusing CEA 
section 1a(49)(C) (by, e.g., entering into non-ancillary 
transactions in swaps), the Commission has anti-evasion authority 
under section 721(c) of the Dodd-Frank Act.
    The regulations that the Commission promulgates under the Dodd-
Frank Act will irrevocably change the structure of the swap markets. 
Such changes have benefits and costs. To properly weigh the benefits 
and costs of its regulations under CEA section 15(a), 7 U.S.C. 
19(a), it would have behooved the Commission to have discussed (i) 
categorically excluding certain entities from the ``swap dealer'' 
definition within the phase-in period, and (ii) exercising anti-
evasion authority, if the Commission found it necessary based on its 
surveillance of the swaps market.

---------------------------------------------------------------------------

[[Page 30760]]

    If the Commission had adopted this construction, the Commission 
would have per se excluded commercial end-users. Such exclusion 
would have permitted these entities to freely hedge their business 
risks, whether financial or physical, without fear of becoming a 
``swap dealer.'' Just to provide some context, commercial end-users 
include Caterpillar, John Deere, and ConAgra Foods. These entities 
have ``a regular business'' of supplying energy, food, and other 
tangible products to America. To these entities, swaps are ancillary 
tools that they can use to manage risk. These entities suffered 
from--rather than perpetrated--the 2008 financial crisis. Yet, these 
entities (either individually or through trade associations) took 
the time to draft and submit comment letters to the Commission--
sometimes multiple letters--because they were afraid of being 
defined as ``swap dealers.''
    If the Commission had any doubt regarding the above 
construction, the Commission could have referred to various letters 
from members of Congress. Such letters explicitly state that 
Congress intended to exclude commercial end-users. For example, 
former Chairman Christopher Dodd and Chairwoman Blanche Lincoln 
circulated a joint letter stating: ``Congress does not intend to 
regulate end-users as Major Swap Participants or Swap Dealers just 
because they use swaps to hedge or manage the commercial risks 
associated with their business.'' \21\ Both senators Dodd and 
Lincoln were instrumental in shaping the legislation that became the 
Dodd-Frank Act.
---------------------------------------------------------------------------

    \21\ Letter from Chairman Christopher Dodd, Committee on 
Banking, Housing, and Urban Affairs, United States Senate, and 
Chairman Blanche Lincoln, Committee on Agriculture, Nutrition, and 
Forestry, United States Senate, to Chairman Barney Frank, Financial 
Services Committee, United States House of Representatives, and 
Chairman Collin Peterson, Committee on Agriculture, United States 
House of Representatives (June 30, 2010) (the ``Dodd-Lincoln 
Letter'').
    The Dodd-Lincoln Letter (as well as the Stabenow-Lucas Letter 
(as defined below)) appears to have embraced a broader conception of 
``commercial risk'' than the Commission. See infra note 42.
---------------------------------------------------------------------------

    Recently, Chairwoman Debbie Stabenow and Chairman Frank Lucas 
reiterated this point: [I]t is important for the Commission to 
finalize the swap dealer definition in a manner that is not overly 
broad, and that will not impose significant new regulations on 
entities that Congress did not intend to be regulated as swap 
dealers. The Commission's final rulemaking further defining `swap 
dealing' should clearly distinguish swap activities that end-users 
engage in to hedge or mitigate the commercial risks associated with 
their businesses, including swaps entered into by end-users to hedge 
physical commodity price risk, from swap dealing.\22\
---------------------------------------------------------------------------

    \22\ Letter from Chairwoman Debbie Stabenow, Committee on 
Agriculture, Nutrition, and Forestry, United States Senate, and 
Chairman Frank D. Lucas, Committee on Agriculture, United States 
House of Representatives to Chairman Gary Gensler, United States 
Commodity Futures Trading Commission (March 29, 2012) (the 
``Stabenow-Lucas Letter'').
---------------------------------------------------------------------------

    It is important to note that Chairwoman Stabenow and Chairman 
Lucas lead the Congressional committees charged with overseeing the 
Commission.
    [cir] CEA section 1a(49)(B): Discretionary Exclusion for 
Entities
    In the alternative (assuming that the Commission rejects the 
above construction), CEA section 1a(49)(B) also contradicts the 
Commission's focus on the activities in CEA section 1a(49)(A). 
Specifically, CEA section 1a(49)(B), when properly construed, sets 
forth a permissive exclusion focused on entities, with respect to 
either their activities or their swaps. CEA section 1a(49)(B) 
states: ``A person may be designated as a swap dealer for a single 
type or single class or category of swap or activities and 
considered not to be a swap dealer for other types, classes, or 
categories of swaps or activities.''
    First, CEA section 1a(49)(B) references ``[a] person.'' CEA 
section 1a(38) \23\ defines ``person'' as ``import[ing] the plural 
or singular.'' Read together, the sections indicate that CEA section 
1a(49)(B) focuses on either (i) an entity or (ii) multiple entities.
---------------------------------------------------------------------------

    \23\ 7 U.S.C. 1a(38).
---------------------------------------------------------------------------

    Second, CEA section 1a(49)(B) states that ``[a] person'' (or 
``persons'') could be ``considered not to be'' a ``swap dealer'' for 
``types, classes, or categories of swaps.'' So, an entity could be 
excluded from the ``swap dealer'' definition with respect to, e.g., 
physical commodity swaps, regardless of its activity with respect to 
such swaps. That indicates that the ``swap dealer'' definition does 
not solely focus on activity, as the Commission maintains. Instead, 
the characteristics of the entity and the underlying swaps are also 
relevant.
    Third, CEA section 1a(49)(B) states that ``[a] person'' (or 
``persons'') could be ``considered not to be'' a ``swap dealer'' for 
certain ``activities.'' So, even if an entity engages in 
``activities'' in CEA section 1a(49)(A), that entity may 
nevertheless not be a ``swap dealer.'' That indicates that the 
``swap dealer'' definition may not even predominantly focus on 
activity.
    Finally, CEA section 1a(49)(B) permits the Commission to include 
one ``person'' (or a group of ``persons'') engaging in certain 
activities in the ``swap dealer'' definition, but to exclude another 
``person'' (or group of ``persons'') engaging in the same 
activities. Of course, the Commission has to articulate a rational 
basis for differential treatment. As discussed below, there may be 
certain statutory bases for differentiation (including the reference 
to ``financial entity'' in the end-user exception). Nothing in CEA 
section 1a(49)(B) prevents the Commission from so differentiating 
through rulemaking (rather than individual determinations).
    [cir] Unnecessary Statutory Contortions
    Instead of following the canons of statutory construction and 
properly interpreting CEA section 1a(49)(C) and CEA section 
1a(49)(B), the Commission engages in a series of contortions with 
seemingly opposing purposes. Upon review, these contortions appear 
to stem from a desire of the Commission to provide a measure of 
certainty to commercial end-users in the CFTC Entities Rule, without 
explicitly contradicting the Proposal.
    Preliminarily, the Commission appears to broadly define ``swap 
dealer'' to capture commercial end-users. For example, both the 
Proposal and the CFTC Entities Rule obfuscate the application of CEA 
section 1a(49)(C) to entities (rather than solely to activities) by 
collapsing CEA section 1a(49)(C) into CEA section 
1a(49)(A)(iii).\24\ In

[[Page 30761]]

performing such collapse, the Commission states that it 
``continue[s] to believe, as stated in the [Proposal], that the 
phrases `ordinary course of business' and `a regular business' are, 
for purposes of the definition of `swap dealer' essentially 
synonymous.'' \25\ Neither the Proposal nor the CFTC Entities Rule 
fully supports collapsing CEA section 1a(49)(C)--one of four clauses 
in the statutory ``swap dealer'' definition--into CEA section 
1a(49)(A)(iii)--a subparagraph of one clause. Further, neither the 
Proposal nor the CFTC Entities Rule fully supports interpreting two 
separate phrases (i.e., ``ordinary course of business'' and 
``regular business'') as meaning the same thing. The Commission 
similarly minimizes CEA section 1a(49)(B) as providing for ``limited 
designation'' only, rather than an alternate source of authority for 
the Commission to exclude certain entities from the ``swap dealer'' 
definition.\26\
---------------------------------------------------------------------------

    \24\ In Section II(A)(4)(d) of CFTC Entities Rule, the 
Commission states: ``We recognize, as noted by one commenter (see 
letter from ISDA I), that the `regular business' exclusion is not 
limited solely to the `ordinary course of business' test of the swap 
dealer definition. Our interpretations of the other three tests are, 
and should be read to be, consistent with the exclusion of 
activities that are not part of a regular business.''
    Preliminarily, I would note that more than one commenter 
observed the collapse.
    Secondarily, as noted above, CEA section 1a(49)(C), 7 U.S.C. 
1a(49)(C), applies to entities (and not solely to activities). 
Therefore, the Commission does not (and really cannot) argue that 
the collapse of CEA section 1a(49)(C) into CEA section 
1a(49)(A)(iii), 7 U.S.C. 1a(49)(A)(iii), has little to no impact on 
its construction of CEA sections 1a(49)(A)(i), (ii), and (iv), 7 
U.S.C. 1a(49)(A)(i), (ii), and (iv).
    Finally, although it is ambiguous in the CFTC Entities Rule (and 
not contemplated in the Proposal), it seems like the Commission may 
be indirectly relying on its reference to the dealer-trader 
distinction to justify its collapse of CEA section 1a(49)(C) and 
1a(49)(A)(iii). Interestingly, the SEC does not state that ``regular 
business'' in Exchange Act section 3(a)(71)(C), 15 U.S.C. 
78c(a)(71)(C)) (parallel to CEA section 1a(49)(C)), is 
``synonymous'' with ``ordinary course of business'' in Exchange Act 
section 3(a)(71)(A)(iii), 15 U.S.C. 78c(a)(71)(A) (parallel to CEA 
section 1a(49)(A)(iii)). Of course, it may have been understood that 
the SEC would hew more closely to the dealer-trader distinction, as 
historically applicable to securities, and thus would focus on 
activities and not entities. See Section II(A)(3) of the Entities 
Rule. However, one wonders that of all the distinctions that the 
Commission makes or attempts to preserve between the swaps and 
securities-based swaps markets, the Commission does not acknowledge 
(i) the ``high degree of concentration'' of dealing in the 
securities-based swaps markets among the largest financial entities 
and (ii) the lack of similar concentration in the swaps markets 
(particularly with respect to markets that commercial end-users 
frequent, such as the physical commodity swaps markets). Compare 
generally Section II(D)(5) of the SEC Entities Rule (which 
repeatedly references ``high degree of concentration'') with Section 
II(D)(4) of the CFTC Entities Rule (which does not contain such 
references). See also Section II(A)(2)(e)(iii) of the CFTC Entities 
Rule (describing comments with respect to electricity swaps). The 
Commission should have accorded greater consideration to differences 
in market structure before dismissing a construction of CEA section 
1a(49)(C) as focusing on entities (and as independent of CEA section 
1a(49)(A)(iii)).
    \25\ Section II(A)(4)(d) of the CFTC Entities Rule.
    \26\ The Commission characterizes CEA section 1a(49)(B), 7 
U.S.C. 1a(49)(B), as ``limited designation'' based on a series of 
misconstructions. First, as noted above, the Commission insists that 
CEA section 1a(49)(A), 7 U.S.C. 1a(49)(A), is the entirety of the 
``swap dealer'' definition. Second, the Commission then interprets 
CEA section 1a(49)(B) to apply to the registration of an entity as a 
``swap dealer,'' and not to the ``swap dealer'' definition. Third, 
because CEA section 1a(49)(B) applies to registration, the 
Commission concludes that it would be appropriate to apply an 
individualized, facts-and-circumstances analysis.
    In actuality, CEA section 1a(49)(B) does more than provide for 
``limited designation.'' First, as discussed above, CEA section 
1a(49)(A) sets forth general parameters for defining ``swap 
dealer.'' The entirety of the ``swap dealer'' definition is actually 
CEA sections 1a(49)(A), (B), (C), and (D), 7 U.S.C. 1a(49)(A), (B), 
(C), and (D). Second, CEA section 1a(49)(B) is in the definition of 
``swap dealer.'' It is not in CEA section 4s(a), 7 U.S.C. 6s(a), 
which pertains to registration of ``swap dealers.'' Therefore, the 
Commission should have considered the effect of CEA section 
1a(49)(B) in delineating the universe of entities that need to seek 
registration with the Commission, and not solely the effect of CEA 
section 1a(49)(B) in determining the scope of registration that the 
Commission would afford such entities. Third, because CEA section 
1a(49)(B) relates to the definition and not the registration of 
``swap dealers,'' the Commission articulates no basis for an 
individualized, facts-and-circumstances determination.
---------------------------------------------------------------------------

    However, after appearing to broadly define ``swap dealer'', the 
Commission then cobbles together various measures that aim--with 
differing levels of success--to provide a measure of certainty to 
commercial end-users. The most important (and successful) of these 
measures is a higher de minimis threshold. Two other important 
measures are: (i) referencing the dealer-trader distinction and (ii) 
incorporating an explicit hedging exception.
    Although these measures reflect positive policy choices, they 
also reflect various compromises that may ultimately diminish the 
certainty that they seek to provide. As mentioned above, the 
Commission could have provided equivalent or superior certainty by 
properly construing CEA sections 1a(49)(C) and (B), either initially 
or in a re-proposal.
    [cir] Reference to the Dealer-Trader Distinction
    In the CFTC Entities Rule, the Commission states that it 
``believe[s] that the dealer-trader distinction--which already forms 
a basis for identifying which persons fall within the longstanding 
Exchange Act definition of `dealer'--in general provides an 
appropriate framework for interpreting the statutory definition of 
the term `swap dealer.''' \27\ In so recognizing, the Commission 
departs from the Proposal.\28\ I have always argued that differences 
exist among (i) dealing, (ii) trading, and (iii) hedging. I have 
also recommended that the Commission provide guidance to clearly 
distinguish among the three categories. Such guidance would aid 
market participants in determining whether to register as a ``swap 
dealer.'' Although the CFTC Entities Rule contains (i) an interim 
final hedging exception \29\ and (ii) a final ``floor trader'' 
exclusion, \30\ both provisions are limited in scope. Therefore, 
market participants will still need clear guidance on Commission 
interpretation of the dealer-trader distinction, in order to 
determine whether their trading or hedging transactions may cause 
them to be deemed ``swap dealers.''
---------------------------------------------------------------------------

    \27\ Section II(A)(4)(a) of the CFTC Entities Rule.
    \28\ The Commission acknowledges such departure, but attempts to 
mitigate its legal effect by emphasizing that (i) the dealer-trader 
framework overlaps with the functional approach in the Proposal, and 
(ii) the Commission has changed its interpretative approach to the 
``swap dealer'' definition in response to comments. See Section 
II(A)(4)(a) of the CFTC Entities Rule.
    \29\ As described below, this exception only applies to physical 
commodity swaps. Therefore, commercial end-users would not be able 
to rely on this exception for swaps to hedge financial risks. 
Moreover, small financial institutions would not be able to rely on 
this exception (as they most likely would be hedging financial 
risk), even if the Commission were to permit them to use the end-
user exception. Finally, even financial entities (such as ``special 
entities'') may engage in ``hedging'' without ``dealing.'' The CFTC 
Entities Rule does not provide much clarity on how such financial 
entities could demonstrate that they are not ``dealing'' (other than 
the amorphous distinction between ``purpose'' and ``consequences'').
    \30\ The final ``floor trader'' exclusion has many limitations. 
For example, an entity cannot rely on this exclusion if it 
participates in a market-making program offered by a designated 
contract market (``DCM'') or swap execution facility. One wonders 
what would happen if an entity participates in a DCM market-making 
program for futures, and then the Commission requires such futures 
to be converted to swaps in a forthcoming rulemaking. See, e. g., 
Core Principles and Other Requirements for Designated Contract 
Markets, 75 FR 80572 (Dec. 22, 2010).
---------------------------------------------------------------------------

    Unfortunately, the Commission has missed its opportunity in the 
CFTC Entities Rule. After reading the relevant portions of the 
rulemaking multiple times, it is still unclear to me exactly how the 
Commission intends to distinguish among (i) dealing, (ii) trading 
(outside of the limited ``floor trader'' exclusion), and (iii) 
hedging (outside of the specific hedging exception, which I discuss 
below). For example, the Commission states: ``[t]he principles 
embedded within the `dealer trader distinction' are also applicable 
to distinguishing dealers from non-dealers such as hedgers or 
investors.'' \31\ I agree with this statement. The Commission also 
cites to more support from the SEC Entities Rule--specifically the 
fact that ``[t]he `dealer-trader' nomenclature has been used for 
decades.'' \32\ I also agree with this statement. However, the 
Commission then states: ``These same principles, though instructive, 
may be inapplicable to swaps in certain circumstances or may be 
applied differently in the context of dealing activities involving 
commodity, interest rate, or other types of swaps.'' \33\ I do not 
know whether to agree or disagree with this statement, given its 
ambiguity. Thus, for all of its girth, the CFTC Entities Rule fails 
to answer a basic question--namely, under which circumstances would 
an entity be deemed a dealer (rather than a trader or hedger) with 
respect to specific swap transactions? \34\
---------------------------------------------------------------------------

    \31\ Section II(A)(4)(a) of the CFTC Entities Rule.
    \32\ Section II(A)(5)(a) of the SEC Entities Rule.
    \33\ Section II(A)(3) of the Entities Rule.
    \34\ For example, in Section II(A)(4)(a) of the CFTC Entities 
Rule, the Commission sets forth a list of indicia that are either 
``particularly similar to'' or ``generally consistent with * * * the 
dealer-trader distinction as it will be applied to determine whether 
a person is a security-based swap dealer.'' However, the Commission 
immediately undermines any comfort that such list could provide by 
stating ``[t]o clarify, the activities listed in the text are 
indicative of acting as a swap dealer. Engaging in one or more of 
these activities is not a prerequisite to a person being covered by 
the swap dealer definition.''
---------------------------------------------------------------------------

    The Commission appears to argue that inherent differences 
between the swaps markets and securities markets (other than 
security-based swaps) justify its selective incorporation of dealer-
trader elements (which elements, in themselves, apparently vary 
according to unknown facts and circumstances). For example, the 
Commission states that an entity need not engage in two-way 
transactions in order to fall within the ``swap dealer'' definition. 
One justification that the Commission advances is that ``swaps thus 
far are not significantly traded on exchanges or other trading 
systems'' and that this ``[attribute]--along with the lack of 
`buying and selling' language in the swap dealer definition * * *-- 
suggest that concepts of what it means to make a market need to be 
construed flexibly in the contexts of the swap market.'' \35\ 
However, in the same section of the CFTC Entities Rule, the 
Commission states: ``many cash market securities also are not 
significantly traded on those systems.'' \36\ Therefore, the 
Commission advances a justification for selective incorporation of 
dealer-trader elements and then contradicts its justification in the 
same paragraph. Thus, even if market participants wished to 
understand Commission reasoning to determine whether they need to 
register as ``swap dealers,'' they may not be able to do so.
---------------------------------------------------------------------------

    \35\ Section II(A)(4)(a) of the CFTC Entities Rule.
    \36\ Id.
---------------------------------------------------------------------------

    Finally, the Commission and the SEC appear to emphasize 
different dealer-trader elements. For example, the Commission tends 
to emphasize ``accommodating demand

[[Page 30762]]

or facilitating interest in the instrument.'' \37\ In contrast, the 
SEC tends to emphasize ``a business model that seeks to profit by 
providing liquidity.'' \38\ The Commission fails to provide a 
rationale for its difference in focus.\39\ On its face, 
``accommodating demand or facilitating interest'' seems to capture 
more traders and hedgers than having ``a business model that seeks 
to profit by providing liquidity.''
---------------------------------------------------------------------------

    \37\ See generally Section II(A)(4) of the CFTC Entities Rule.
    \38\ See generally Section II(A)(5) of the SEC Entities Rule.
    The CFTC Entities Rule does acknowledge that seeking to profit 
from providing liquidity is one indicia of dealing. However, the 
CFTC Entities Rule limits its discussion of this indicia to CEA 
section 1a(49)(A)(ii), 7 U.S.C. 1a(49)(A)(ii), which emphasizes 
market-making. The Commission appears to rely more heavily on 
``accommodating demand or facilitating interest'' (without 
necessarily emphasizing a ``business model that seeks to profit from 
providing liquidity'') in its interpretation of the remainder of CEA 
section 1a(49)(A), 7 U.S.C. 1a(49)(A). Therefore, a dissonance still 
exists between the CFTC Entities Rule and the SEC Entities Rule.
    \39\ See supra note 24. The Commission could have focused on 
differences in market composition. Unfortunately, such focus could 
have raised other issues with Commission construction of CEA section 
1a(49), 7 U.S.C. 1a(49).
---------------------------------------------------------------------------

    [cir] Interim Final Rule on Hedging
    In the CFTC Entities Rule, the Commission has included an 
interim final rule excepting certain hedging transactions from the 
``swap dealer'' definition (i.e., Regulation 1.3(ggg)(6)(iii)).\40\ 
I agree that hedging is not dealing. However, I find the interim 
final rule excessively narrow. First, the interim final rule only 
applies to a limited set of physical commodity hedges. I am not sure 
why the Commission does not wish to allow commercial end-users to 
hedge financial risks (e.g., through interest rate swaps) without 
fearing that they could be deemed ``swap dealers.'' \41\ Permitting 
such hedging would be consonant with Congressional intent, as 
expressed in the letters from members of Congress.\42\ Conversely, I 
am not sure why the Commission wants to encourage, e.g., banking 
entities--like Barclays--to own physical commodities and claim the 
hedge exception.
---------------------------------------------------------------------------

    \40\ See Section II(A)(4)(e) of the CFTC Entities Rule.
    \41\ The Commission relies on its misconstruction of the 
statutory ``swap dealer'' definition to justify such a narrow 
exclusion. In Section II(A)(4)(e) of the CFTC Entities Rule, the 
Commission states: ``In terms of the statutory definition of the 
term `swap dealer,' the CFTC notes as an initial matter that there 
is no specific provision addressing hedging activity. Thus, the 
statutory definition leaves the treatment of hedging swaps to the 
CFTC's discretion; it neither precludes consideration of a swap's 
hedging purpose, nor does it require an absolute exclusion of all 
swaps used for hedging.'' As noted above, whereas CEA section 1a(49) 
does not specifically refer to ``hedging,'' CEA section 1a(49)(C), 7 
U.S.C. 1a(49)(C), (as well as CEA section 1a(49)(B), 7 U.S.C. 
1a(49)(B))--as properly construed--would have excluded commercial 
end-users that engage in swaps for purposes of hedging. It is 
interesting that the SEC did not endorse these specific sentences.
    \42\ As mentioned above, the Commission contorts itself in the 
CFTC Entities Rule to provide an interim hedging exception that 
applies only to physical commodity risks. This approach runs 
contrary to the Dodd-Lincoln Letter (as well as the Stabenow-Lucas 
Letter). Both letters emphasize exclusions for entities--such as 
commercial end-users--so that they could freely hedge their risks--
whether financial or physical.
    The Dodd-Lincoln Letter begins by referencing hedging of 
interest rate risk. It specifically states: ``Whether swaps are used 
by an airline hedging its fuel costs or a global manufacturing 
company hedging interest rate risk, derivatives are an important 
tool businesses use to manage costs and market volatility. This 
legislation will preserve that tool.'' Moreover, the Dodd-Lincoln 
Letter states: ``The end user exemption may also apply to our 
smaller financial entities--credit unions, community banks, and farm 
credit institutions.'' If such institutions could be categorized as 
``swap dealers,'' then they would be prohibited from relying on the 
end-user exception. Such institutions would likely seek to hedge 
financial risk.
    As mentioned above, the Stabenow-Lucas Letter states: ``The 
Commission's final rulemaking further defining `swap dealing' should 
clearly distinguish swap activities that end-users engage in to 
hedge or mitigate the commercial risks associated with their 
businesses, including swaps entered into by end-users to hedge 
physical commodity price risk, from swap dealing.'' In using the 
term ``including,'' the Stabenow-Lucas Letter acknowledges that end-
users may use swaps to hedge or mitigate risks--such as financial 
risks--other than those related to physical commodities.
    By focusing only physical commodity risks, therefore, the 
interim hedging exception fails to fully satisfy Congressional 
intent.
---------------------------------------------------------------------------

    Second, there are four other hedging definitions that are either 
(i) currently effective or (ii) the subject of a Dodd-Frank Act 
proposal.\43\ Given the call by President Obama to simplify 
regulation,\44\ I would have expected the Commission to refrain from 
proposing a fifth hedging definition, unless strictly necessary. In 
the CFTC Entities Rule, the Commission does not cogently explain the 
necessity for a fifth hedging exception. For example, the Commission 
spends a considerable amount of effort to differentiate the interim 
final rule from bona fide hedging in Regulations 1.3(z) and 
151.5(a)(1). The Commission's rationale may be distilled into one 
circular sentence: the Commission believes that certain bona fide 
hedging transactions may constitute swap dealing, due to reasons 
that the Commission declines to fully explain.\45\ Additionally, the 
Commission spends one paragraph attempting to differentiate between 
the interim final rule and the ``major swap participant'' definition 
(which contains a hedging or mitigating commercial risk exception). 
In that paragraph, the central argument appears to be that the 
``swap dealer'' definition determines the parameters of the ``major 
swap participant'' definition--but not also vice versa.\46\ 
Preliminarily, the Commission declines to cite where exactly the 
Dodd-Frank Act states that the ``swap dealer'' definition is 
determinative. Secondarily, even assuming that the Commission is 
correct in characterizing the interconnection, the Commission does 
not clearly explain why it thinks that those transactions (i) 
falling outside the interim final rule but (ii) falling within 
hedging or mitigating commercial risk are more likely to constitute 
swap dealing.
---------------------------------------------------------------------------

    \43\ See Regulation 1.3(z), 17 CFR 1.3(z); (ii) Regulation 
151.5(a)(1) (in Position Limits in Futures and Swaps; Final Rule, 76 
FR 71626, 71688 (Nov. 18, 2011) (to be codified at 17 CFR parts 1, 
150, and 151)); (iii) Regulation 1.3(hhh) (as set forth in the CFTC 
Entities Rule); and (iv) Regulation 39.6(c) (in End-User Exception 
to Mandatory Clearing of Swaps; Proposed Rule, 75 FR 80747, 80757 
(Dec. 23, 2010)).
    \44\ See Exec. Order No. 13563, 76 FR 3821, Jan. 21, 2011; see 
also Exec. Order No. 13579, 76 FR 41587, July 14, 2011.
    \45\ In Section II(A)(4)(e) of the CFTC Entities Rule, the 
Commission attempts to distinguish between ``purpose'' and 
``effect.'' Market participants may find such an attempt to be less 
than clear.
    \46\ Section II(A)(4)(e) of the CFTC Entities Rule (stating ``* 
* *The definition of the term ``major swap participant,'' which 
applies only to persons who are not swap dealers, is premised on the 
prior identification, by the swap dealer definition, of persons who 
accommodate demand for swaps, make a market in swaps, or otherwise 
engage in swap dealing activity. The major swap participant 
definition performs the subsequent function of identifying persons 
that are not swap dealers, but hold swap positions that create an 
especially high level of risk that could significantly impact the 
U.S. financial system.'').
---------------------------------------------------------------------------

    Finally, the Commission is silent on the manner in which the 
interim final rule interacts with the proposed Regulation 39.6 
(detailing hedging or mitigating commercial risk for the end-user 
exception). If an entity is a ``swap dealer,'' then it cannot rely 
on the end-user exception to clearing.\47\ Therefore, if the 
Commission overreaches in defining ``swap dealer,'' it may narrow 
the end-user exception in a way not congruent with Congressional 
intent.\48\
---------------------------------------------------------------------------

    \47\ See CEA section 2(h)(7), 7 U.S.C. 2(h)(7). See also supra 
note 43.
    \48\ See supra note 42.
---------------------------------------------------------------------------

Other Provisions of the Dodd-Frank Act and the CEA: Further 
Misconstructions

    As mentioned above, the Commission fails to properly construe 
the various clauses of CEA section 1a(49). As detailed in this 
section, the Commission also fails to consider other provisions of 
the CEA or the Dodd-Frank Act in determining the parameters of 
``swap dealer.'' The Commission appears to assume that the ``swap 
dealer'' definition is determinative for all such provisions, rather 
than also vice versa. The Commission does not provide much (if any) 
rationale for this assumption. Removing this assumption, it becomes 
clear that other provisions of the CEA or the Dodd-Frank Act may 
suggest further limitations on ``swap dealer.'' \49\
---------------------------------------------------------------------------

    \49\ As mentioned above, the Commission has authority to 
discretionarily exclude certain entities pursuant to CEA section 
1a(49)(B), 7 U.S.C. 1a(49)(B).
---------------------------------------------------------------------------

 End-User Exemption: Who can take advantage of it?

    CEA section 2(h)(7) sets forth what is commonly known as the 
``end-user clearing exception.'' As mentioned above, the ``swap 
dealer'' definition is crucial to determining which entities could 
use the end-user clearing exception. That is because CEA section 
2(h)(7) only applies if one counterparty to a swap is not a 
``financial entity.'' \50\ CEA section 2(h)(7)(C) defines

[[Page 30763]]

``financial entity'' as including a ``swap dealer.'' \51\ Therefore, 
if the Commission defines ``swap dealer'' expansively, then the 
Commission will limit the number and types of end-users that may use 
the clearing exception.
---------------------------------------------------------------------------

    \50\ CEA section 2(h)(7)(A), 7 U.S.C. 2(h)(7)(A), states: ``In 
General.--The requirements of paragraph (1)(A) shall not apply to a 
swap if 1 of the counterparties to the swap--(i) is not a financial 
entity; (ii) is using swaps to hedge or mitigate commercial risk; 
and (iii) notifies the Commission, in a manner set forth by the 
Commission, how it generally meets its financial obligations 
associated with entering into non-cleared swaps.''
    \51\ Notably, CEA section 2(h)(7)(C)(i), 7 U.S.C. 2(h)(7)(C)(i), 
also lists commodity pools, certain private funds, certain employee 
benefit plans, and certain banking and financial entities separately 
from ``swap dealer.'' Does this separate listing imply that those 
entities are not ``swap dealers''? Why or why not?
---------------------------------------------------------------------------

    Given the importance of the interconnections between the ``swap 
dealer'' definition and the end-user clearing exception, I would 
have expected the Commission to discuss such interconnections in 
great detail. Surprisingly, in that portion of the CFTC Entities 
Rule defining ``swap dealer,'' the Commission only discusses end-
user clearing in a footnote.\52\
---------------------------------------------------------------------------

    \52\ The Commission discusses the end-user clearing exception 
more fully in that portion of the CFTC Entities Rule defining 
``major swap participant.''
---------------------------------------------------------------------------

    Footnote 213 illustrates in a particularly poignant manner the 
Commission's failure to properly consider the interaction between 
the ``swap dealer'' definition and the end-user exception. In that 
footnote, the Commission attempts to dismiss the argument that the 
``swap dealer'' definition should only apply to financial entities. 
The Commission states:
    Similarly, the absence of any limitation in the statutory 
definition of the term ``swap dealer'' to financial entities, when 
such limitation is included elsewhere in Title VII, indicates that 
no such limitation applies to the swap dealer definition. CEA 
section 2(h)(7), 7 U.S.C. 2(h)(7), specifically limits the 
application of the clearing mandate, in certain circumstances, to 
only ``financial entities.'' That section also provides a detailed 
definition of the term ``financial entity.'' See CEA section 
2(h)(7)(C), 7 U.S.C. 2(h)(7)(C). That such a limitation is included 
in this section, but not in the swap dealer definition, does not 
support the view that the statutory definition of the term ``swap 
dealer'' should encompass only financial entities.
    In actuality, Footnote 213 raises more questions than it 
answers. In Footnote 213, the Commission presumes that the 
interaction between the ``swap dealer'' definition and the end-user 
exception only goes one way--namely, that the ``swap dealer'' 
definition fixes the scope of the end-user exception, but not also 
vice versa. The Commission provides no basis for this presumption, 
especially since a basic canon of statutory is that the Commission 
should construe a statute as a ``harmonious whole.'' From that 
perspective, it becomes clear that Footnote 213 raises a series of 
fundamental questions. Why did Congress use the term ``financial 
entity'' in CEA section 2(h)(7)(C)? Does use of this term imply in 
any way that Congress presumed that the ``swap dealer'' definition 
would exclude commercial entities? Why or why not? Surely, Congress 
need not have specified financial entity in CEA section 2(h)(7)(C) 
if it had intended to permit the Commission to vitiate the reference 
to financial by simply defining ``swap dealers'' to include 
commercial entities. If Congress intended to so permit, then 
Congress could have simply used the term ``entity'' in CEA section 
2(h)(7)(C).

 Employee Benefit Plans: ``Swap Dealers?''

    In Section II(A)(2)(f) of the CFTC Entities Rule, the Commission 
describes comments requesting categorical exclusions from the ``swap 
dealer'' definition. One such comment was from American Benefits 
Council (``ABC'') and the Committee on the Investment of Employee 
Benefit Assets (``CIEBA'').\53\ In their comments, ABC/CIEBA 
requested that the Commission exclude (or interpret CEA section 
1a(49) to exclude) certain employee benefit plans from the ``swap 
dealer'' definition. In Section II(A)(6) of the CFTC Entities Rule, 
the Commission denies this request, mainly on the basis of its 
misguided construction of CEA section 1a(49).
---------------------------------------------------------------------------

    \53\ Comment from ABC/CIEBA, dated February 22, 2011, available 
at: https://comments.cftc.gov/PublicComments/ViewComment.aspx?id=27944&SearchText=American%20Benefits%20Council.
---------------------------------------------------------------------------

    In so denying, the Commission fails to consider CEA section 
4s(h). Specifically, CEA sections 4s(h)(2), (4), and (5) prescribe 
heightened business conduct standards for ``swap dealers'' 
interacting with ``special entities.'' In fact, the Commission 
recently promulgated a final rulemaking on these standards.\54\ CEA 
section 4s(h)(2)(C) defines ``special entity'' as, among other 
things, ``any employee benefit plan, as defined in section 3 of the 
Employee Retirement Income Security Act of 1974 (29 U.S.C. 1002).'' 
CEA section 4s(h) raises another series of fundamental questions. 
Did Congress presume that employee benefit plans would not 
constitute ``swap dealers''? \55\ Why or why not? Indeed, how does 
the Commission reconcile its denial of the ABC/CIEBA request with 
its own de minimis requirement, which seems to recognize a per se 
difference between a ``special entity'' and a ``swap dealer''? \56\
---------------------------------------------------------------------------

    \54\ Business Conduct Standards for Swap Dealers and Major Swap 
Participants with Counterparties; Final Rule, 77 FR 9734 (Feb. 17, 
2012).
    \55\ See supra note 51.
    \56\ See Section II(D) of the Entities Rule.
---------------------------------------------------------------------------

 Internal Business Conduct Standards: Indication of the 
Scope of ``Swap Dealer?''

    In addition to failing to account for external business conduct 
standards, the Commission fails to account for certain internal 
business conduct standards in defining ``swap dealer.'' For example, 
CEA section 4s(j)(5) requires ``swap dealers'' to have systems and 
procedures to mitigate conflicts of interest resulting from 
interactions between (i)(A) any person engaged in ``research or 
analysis of the price or market for any commodity or swap'' or (B) 
any person ``acting in a role of providing clearing activities or 
making determinations as to accepting clearing customers'' and (ii) 
certain persons involved in ``pricing, trading, or clearing 
activities.'' The Commission recently promulgated a final rulemaking 
on this requirement.\57\ CEA section 4s(j)(5) raises another 
fundamental question. Did Congress presume that ``swap dealers'' 
generally engage in either ``research or analysis'' or ``providing 
clearing activities or making determinations'' and ``pricing, 
trading, or clearing activities''? Why or why not?
---------------------------------------------------------------------------

    \57\ Swap Dealer and Major Swap Participant Recordkeeping, 
Reporting, and Duties Rules; Futures Commission Merchant and 
Introducing Broker Conflicts of Interest Rules; and Chief Compliance 
Officer Rules for Swap Dealers, Major Swap Participants, and Futures 
Commission Merchants; Final Rule, 77 FR 20128 (Apr. 3, 2012).
---------------------------------------------------------------------------

 Volcker: How does the CFTC Entities Rule Fit?

    As I have noted previously, the ``Volcker Rule'' \58\ sets forth 
detailed metrics to differentiate between (i) market-making and (ii) 
proprietary trading. To say that the CFTC Entities Rule does not 
replicate such detail would be an understatement. Worse, the CFTC 
Entities Rule does not even attempt to explain why the metrics in 
the Volcker Rule are inapplicable to the ``swap dealer'' definition. 
In fact, the Commission addresses the interaction between the 
Volcker Rule and the CFTC Entities Rule only in one footnote. This 
footnote states in relevant part:
---------------------------------------------------------------------------

    \58\ Prohibitions and Restrictions on Proprietary Trading and 
Certain Interests in, and Relationships With, Hedge Funds and 
Covered Funds; Proposed Rule, 77 FR 8332 (Feb. 14, 2012).
---------------------------------------------------------------------------

    The Commissions have proposed an approach to the Volcker Rule 
under which a person could seek to avoid the Volcker Rule in 
connection with swap activities by asserting the availability of 
that market making exception * * * Under this approach, such a 
person would likely also be required to register as a swap dealer 
(unless the person is excluded from the swap dealer definition, such 
as by the exclusion of certain swaps entered into in connection with 
the origination of a loan).\59\
---------------------------------------------------------------------------

    \59\ Section II(A)(4)(c) of the CFTC Entities Rule.
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    Of course, this footnote provides no useful clarification, since 
the operative question is whether an entity engaging in activities 
that would not be ``market-making'' under the Volcker Rule could 
nonetheless be engaging in ``market-making'' under the CFTC Entities 
Rule (and, solely by virtue of such characterization, be required to 
register as a ``swap dealer'').

[[Page 30764]]

Conclusion

    In the CFTC Entities Rule, the Commission has made many positive 
policy changes. To enable these changes, however, the Commission 
engages in a series of statutory contortions. Moreover, the 
Commission ignores a number of important questions. Witnessing these 
statutory gymnastics, I am reminded of the Robert Frost poem, ``The 
Road Not Taken.'' In its eagerness to adopt the CFTC Entities Rule, 
the Commission opted for one road. Specifically, the Commission 
opted for providing more relief to market participants, without 
contradicting the fundamental premises of the Proposal. However, 
once market participants have examined the rulemaking, will the 
Commission have wished that it had properly construed CEA section 
1a(49) instead? Given the Proposal and the final CFTC Entities Rule 
(and their respective differences), the Commission may well conclude 
that ``* * * it took the one less traveled by * * * And that has 
made all the difference.'' \60\
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    \60\ Generally, because the vast body of administrative law 
provides guideposts to the road more traveled.

[FR Doc. 2012-10562 Filed 5-22-12; 8:45 am]
BILLING CODE 6351-01-P

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