Comparability Determination for Hong Kong: Certain Entity-Level Requirements, 78852-78864 [2013-30975]

Download as PDF 78852 Federal Register / Vol. 78, No. 249 / Friday, December 27, 2013 / Notices questions regarding information sharing, cooperation, supervision, and enforcement will remain unanswered until the Commission and our fellow regulators execute these MOUs. Second, the Commission has issued timelimited no-action relief for the swap data repository reporting requirements. These comparability determinations will be done as separate notices. However, the timing and process for these determinations remain uncertain. Third, the Commission has failed to provide clarity on the process for addressing the comparability determinations that it declined to undertake at this time. The Notices only state that the Commission may address these requests in a separate notice at a later date given further developments in the law and regulations of other jurisdictions. To promote certainty in the financial markets, the Commission must provide a clear path forward for market participants and foreign regulators. The following steps would be a better approach: (1) The Commission should extend the Exemptive Order to allow foreign regulators to further implement their regulatory regimes and coordinate with them to implement a harmonized substituted compliance process; (2) the Commission should implement a flexible, outcomes-based approach to the substituted compliance process and apply it similarly to all jurisdictions; and (3) the Commission should work closely with our fellow regulators to expeditiously implement MOUs that resolve regulatory differences and address regulatory oversight issues. tkelley on DSK3SPTVN1PROD with NOTICES Conclusion While I support the narrow comparability determinations that the Commission has made, it was my hope that the Commission would work with foreign regulators to implement a substituted compliance process that would increase the global harmonization effort. I am disappointed that the Commission has failed to implement such a process. I do believe that in the longer term, the swaps regulations of the major jurisdictions will converge. At this time, however, the Commission’s comparability determinations have done little to alleviate the burden of regulatory uncertainty and duplicative compliance with both U.S. and foreign regulations. The G–20 process delineated and put in place the swaps market reforms in G–20 member nations. It is then no surprise that the Commission must learn to coordinate with foreign regulators to minimize confusion and disruption in bringing much needed clarity to the swaps market. For all these shortcomings, I respectfully dissent from the Commission’s approval of the Notices. [FR Doc. 2013–30979 Filed 12–26–13; 8:45 am] BILLING CODE 6351–01–P VerDate Mar<15>2010 23:48 Dec 26, 2013 Jkt 232001 COMMODITY FUTURES TRADING COMMISSION Comparability Determination for Hong Kong: Certain Entity-Level Requirements Commodity Futures Trading Commission. ACTION: Notice of Comparability Determination for Certain Requirements under the laws of Hong Kong. AGENCY: The following is the analysis and determination of the Commodity Futures Trading Commission (‘‘Commission’’) regarding certain parts of a request by the Hong Kong Monetary Authority (‘‘HKMA’’) that the Commission determine that laws and regulations applicable in Hong Kong provide a sufficient basis for an affirmative finding of comparability with respect to the following regulatory obligations applicable to swap dealers (‘‘SDs’’) and major swap participants (‘‘MSPs’’) registered with the Commission: (i) Chief compliance officer; (ii) risk management; and (iii) swap data recordkeeping (collectively, the ‘‘Internal Business Conduct Requirements’’). SUMMARY: Effective Date: This determination will become effective immediately upon publication in the Federal Register. FOR FURTHER INFORMATION CONTACT: Gary Barnett, Director, 202–418–5977, gbarnett@cftc.gov, Frank Fisanich, Chief Counsel, 202–418–5949, ffisanich@ cftc.gov, and August A. Imholtz III, Special Counsel, 202–418–5140, aimholtz@cftc.gov, Division of Swap Dealer and Intermediary Oversight, Commodity Futures Trading Commission, Three Lafayette Centre, 1155 21st Street, NW., Washington, DC 20581. SUPPLEMENTARY INFORMATION: DATES: I. Introduction On July 26, 2013, the Commission published in the Federal Register its ‘‘Interpretive Guidance and Policy Statement Regarding Compliance with Certain Swap Regulations’’ (the ‘‘Guidance’’).1 In the Guidance, the Commission set forth its interpretation of the manner in which it believes that section 2(i) of the Commodity Exchange Act (‘‘CEA’’) applies Title VII’s swap provisions to activities outside the U.S. and informed the public of some of the policies that it expects to follow, generally speaking, in applying Title VII and certain Commission regulations in contexts covered by section 2(i). Among other matters, the Guidance generally described the policy and procedural framework under which the Commission would consider a substituted compliance program with respect to Commission regulations applicable to entities located outside the U.S. Specifically, the Commission addressed a recognition program where compliance with a comparable regulatory requirement of a foreign jurisdiction would serve as a reasonable substitute for compliance with the attendant requirements of the CEA and the Commission’s regulations promulgated thereunder. In addition to the Guidance, on July 22, 2013, the Commission issued the Exemptive Order Regarding Compliance with Certain Swap Regulations (the ‘‘Exemptive Order’’).2 Among other things, the Exemptive Order provided time for the Commission to consider substituted compliance with respect to six jurisdictions where non-U.S. SDs are currently organized. In this regard, the Exemptive Order generally provided non-U.S. SDs and MSPs in the six jurisdictions with conditional relief from certain requirements of Commission regulations (those referred to as ‘‘Entity-Level Requirements’’ in the Guidance) until the earlier of December 21, 2013, or 30 days following the issuance of a substituted compliance determination.3 On July 12, 2013, the HKMA (the ‘‘applicant’’) submitted a request that the Commission determine that laws and regulations applicable in Hong Kong provide a sufficient basis for an affirmative finding of comparability with respect to certain Entity-Level Requirements, including the Internal Business Conduct Requirements.4 The applicant provided Commission staff with updated submissions on August 8 and 19, 2013. On November 11, November 28, and December 6, 2013, the applicant further supplemented the application with corrections and additional materials. The following is 2 78 1 78 FR 45292 (July 26, 2013). The Commission originally published proposed and further proposed guidance on July 12, 2012 and January 7, 2013, respectively. See Cross-Border Application of Certain Swaps Provisions of the Commodity Exchange Act, 77 FR 41214 (July 12, 2012) and Further Proposed Guidance Regarding Compliance with Certain Swap Regulations, 78 FR 909 (Jan. 7, 2013). PO 00000 Frm 00043 Fmt 4703 Sfmt 4703 FR 43785 (July 22, 2013). Entity-Level Requirements under the Exemptive Order consist of 17 CFR 1.31, 3.3, 23.201, 23.203, 23.600, 23.601, 23.602, 23.603, 23.605, 23.606, 23.608, 23.609, and parts 45 and 46 of the Commission’s regulations. 4 For purposes of this notice, the Internal Business Conduct Requirements consist of 17 CFR 3.3, 23.201, 23.203, 23.600, 23.601, 23.602, 23.603, 23.605, and 23.606. 3 The E:\FR\FM\27DEN1.SGM 27DEN1 Federal Register / Vol. 78, No. 249 / Friday, December 27, 2013 / Notices the Commission’s analysis and determination regarding the Internal Business Conduct Requirements, as detailed below.5 tkelley on DSK3SPTVN1PROD with NOTICES II. Background On July 21, 2010, President Obama signed the Dodd-Frank Wall Street Reform and Consumer Protection Act6 (‘‘Dodd-Frank Act’’ or ‘‘Dodd-Frank’’), which, in Title VII, established a new regulatory framework for swaps. Section 722(d) of the Dodd-Frank Act amended the CEA by adding section 2(i), which provides that the swap provisions of the CEA (including any CEA rules or regulations) apply to crossborder activities when certain conditions are met, namely, when such activities have a ‘‘direct and significant connection with activities in, or effect on, commerce of the United States’’ or when they contravene Commission rules or regulations as are necessary or appropriate to prevent evasion of the swap provisions of the CEA enacted under Title VII of the Dodd-Frank Act.7 In the three years since its enactment, the Commission has finalized 68 rules and orders to implement Title VII of the Dodd-Frank Act. The finalized rules include those promulgated under section 4s of the CEA, which address registration of SDs and MSPs and other substantive requirements applicable to SDs and MSPs. With few exceptions, the delayed compliance dates for the Commission’s regulations implementing such section 4s requirements applicable to SDs and MSPs have passed and new SDs and MSPs are now required to be in full compliance with such regulations upon registration with the Commission.8 Notably, the requirements under Title VII of the Dodd-Frank Act related to SDs and MSPs by their terms apply to all registered SDs and MSPs, irrespective of where they are located, albeit subject to the limitations of CEA section 2(i). To provide guidance as to the Commission’s views regarding the scope of the cross-border application of Title VII of the Dodd-Frank Act, the Commission set forth in the Guidance its interpretation of the manner in which it believes that Title VII’s swap provisions apply to activities outside the U.S. pursuant to section 2(i) of the 5 This notice does not address swap data repository reporting (‘‘SDR Reporting’’). The Commission may provide a comparability determination with respect to the SDR Reporting requirement in a separate notice. 6 Public Law 111–203, 124 Stat. 1376 (2010). 7 7 U.S.C. 2(i). 8 The compliance dates are summarized on the Compliance Dates page of the Commission’s Web site. (http://www.cftc.gov/LawRegulation/ DoddFrankAct/ComplianceDates/index.htm.) VerDate Mar<15>2010 23:48 Dec 26, 2013 Jkt 232001 CEA. Among other matters, the Guidance generally described the policy and procedural framework under which the Commission would consider a substituted compliance program with respect to Commission regulations applicable to entities located outside the U.S. Specifically, the Commission addressed a recognition program where compliance with a comparable regulatory requirement of a foreign jurisdiction would serve as a reasonable substitute for compliance with the attendant requirements of the CEA and the Commission’s regulations. With respect to the standards forming the basis for any determination of comparability (‘‘comparability determination’’ or ‘‘comparability finding’’), the Commission stated: In evaluating whether a particular category of foreign regulatory requirement(s) is comparable and comprehensive to the applicable requirement(s) under the CEA and Commission regulations, the Commission will take into consideration all relevant factors, including but not limited to, the comprehensiveness of those requirement(s), the scope and objectives of the relevant regulatory requirement(s), the comprehensiveness of the foreign regulator’s supervisory compliance program, as well as the home jurisdiction’s authority to support and enforce its oversight of the registrant. In this context, comparable does not necessarily mean identical. Rather, the Commission would evaluate whether the home jurisdiction’s regulatory requirement is comparable to and as comprehensive as the corresponding U.S. regulatory requirement(s).9 Upon a comparability finding, consistent with CEA section 2(i) and comity principles, the Commission’s policy generally is that eligible entities may comply with a substituted compliance regime, subject to any conditions the Commission places on its finding, and subject to the Commission’s retention of its examination authority and its enforcement authority.10 In this regard, the Commission notes that a comparability determination cannot be premised on whether an SD or MSP must disclose comprehensive information to its regulator in its home jurisdiction, but rather on whether information relevant to the Commission’s oversight of an SD or MSP would be directly available to the Commission and any U.S. prudential regulator of the SD or MSP.11 The 9 78 FR 45342–45. the Guidance, 78 FR 45342–44. 11 Under §§ 23.203 and 23.606, all records required by the CEA and the Commission’s regulations to be maintained by a registered SD or MSP shall be maintained in accordance with Commission regulation 1.31 and shall be open for 10 See PO 00000 Frm 00044 Fmt 4703 Sfmt 4703 78853 Commission’s direct access to the books and records required to be maintained by an SD or MSP registered with the Commission is a core requirement of the CEA 12 and the Commission’s regulations,13 and is a condition to registration.14 III. Regulation of SDs and MSPs in Hong Kong The HKMA administers the Hong Kong Banking Ordinance and is the government authority in Hong Kong responsible for maintaining monetary and banking stability.15 Its main functions are: • Maintaining currency stability within the framework of the Linked Exchange Rate system; • Promoting the stability and integrity of the financial system, including the banking system; • Helping to maintain Hong Kong’s status as an international financial center, including the maintenance and development of Hong Kong’s financial infrastructure; and • Managing the Exchange Fund. inspection by representatives of the Commission, the United States Department of Justice, or any applicable U.S. prudential regulator. In its Final Exemptive Order Regarding Compliance with Certain Swap Regulations, 78 FR 858 (Jan. 7, 2013), the Commission noted that an applicant for registration as a SD or MSP must file a Form 7–R with the National Futures Association and that Form 7–R was being modified at that time to address existing blocking, privacy, or secrecy laws of foreign jurisdictions that applied to the books and records of SDs and MSPs acting in those jurisdictions. See id. at 871–72 n. 107. The modifications to Form 7–R were a temporary measure intended to allow SDs and MSPs to apply for registration in a timely manner in recognition of the existence of the blocking, privacy, and secrecy laws. In the Guidance, the Commission clarified that the change to Form 7–R impacts the registration application only and does not modify the Commission’s authority under the CEA and its regulations to access records held by registered SDs and MSPs. Commission access to a registrant’s books and records is a fundamental regulatory tool necessary to properly monitor and examine each registrant’s compliance with the CEA and the regulations adopted pursuant thereto. The Commission has maintained an ongoing dialogue on a bilateral and multilateral basis with foreign regulators and with registrants to address books and records access issues and may consider appropriate measures where requested to do so. 12 See e.g., sections 4s(f)(1)(C), 4s(j)(3) and (4) of the CEA. 13 See e.g., §§ 23.203(b) and 23.606. 14 See supra note 9. 15 Because the applicant’s request and the Commission’s determinations herein are based on the comparability of the requirements applicable to Authorized Institutions (‘‘AI’’) regulated by the HKMA, an SD or MSP that is not an AI, or is otherwise not subject to the requirements applicable to AIs upon which the Commission bases its determinations, may not be able to rely on the Commission’s comparability determinations herein. E:\FR\FM\27DEN1.SGM 27DEN1 78854 Federal Register / Vol. 78, No. 249 / Friday, December 27, 2013 / Notices IV. Comparable and Comprehensiveness Standard The Commission’s comparability analysis will be based on a comparison of specific foreign requirements against the specific related CEA provisions and Commission regulations as categorized and described in the Guidance. As explained in the Guidance, within the framework of CEA section 2(i) and principles of international comity, the Commission may make a comparability determination on a requirement-byrequirement basis, rather than on the basis of the foreign regime as a whole.16 In making its comparability determinations, the Commission may include conditions that take into account timing and other issues related to coordinating the implementation of reform efforts across jurisdictions.17 In evaluating whether a particular category of foreign regulatory requirement(s) is comparable and comprehensive to the corollary requirement(s) under the CEA and Commission regulations, the Commission will take into consideration all relevant factors, including, but not limited to: • The comprehensiveness of those requirement(s), • The scope and objectives of the relevant regulatory requirement(s), • The comprehensiveness of the foreign regulator’s supervisory compliance program, and • The home jurisdiction’s authority to support and enforce its oversight of the registrant.18 In making a comparability determination, the Commission takes an ‘‘outcome-based’’ approach. An ‘‘outcome-based’’ approach means that when evaluating whether a foreign jurisdiction’s regulatory requirements are comparable to, and as comprehensive as, the corollary areas of the CEA and Commission regulations, the Commission ultimately focuses on regulatory outcomes (i.e., the home jurisdiction’s requirements do not have to be identical).19 This approach 16 78 FR 45343. FR 45343. 18 78 FR 45343. 19 78 FR 45343. The Commission’s substituted compliance program would generally be available for SDR Reporting, as outlined in the Guidance, only if the Commission has direct access to all of the data elements that are reported to a foreign trade repository pursuant to the substituted compliance program. Thus, direct access to swap data is a threshold matter to be addressed in a comparability evaluation for SDR Reporting. Moreover, the Commission explains in the Guidance that, due to its technical nature, a comparability evaluation for SDR Reporting ‘‘will generally entail a detailed comparison and technical analysis.’’ A more particularized analysis will generally be necessary tkelley on DSK3SPTVN1PROD with NOTICES 17 78 VerDate Mar<15>2010 23:48 Dec 26, 2013 Jkt 232001 recognizes that foreign regulatory systems differ and their approaches vary and may differ from how the Commission chose to address an issue, but that the foreign jurisdiction’s regulatory requirements nonetheless achieve the regulatory outcome sought to be achieved by a certain provision of the CEA or Commission regulation. In doing its comparability analysis the Commission may determine that no comparability determination can be made 20 and that the non-U.S. SD or non-U.S. MSP, U.S. bank that is an SD or MSP with respect to its foreign branches, or non-registrant, to the extent applicable under the Guidance, may be required to comply with the CEA and Commission regulations. The starting point in the Commission’s analysis is a consideration of the regulatory objectives of the foreign jurisdiction’s regulation of swaps and swap market participants. As stated in the Guidance, jurisdictions may not have swap specific regulations in some areas, and instead have regulatory or supervisory regimes that achieve comparable and comprehensive regulation to the DoddFrank Act requirements, but on a more general, entity-wide, or prudential, basis.21 In addition, portions of a foreign regulatory regime may have similar regulatory objectives, but the means by which these objectives are achieved with respect to swaps market activities may not be clearly defined, or may not expressly include specific regulatory elements that the Commission concludes are critical to achieving the regulatory objectives or outcomes required under the CEA and the Commission’s regulations. In these circumstances, the Commission will work with the regulators and registrants in these jurisdictions to consider alternative approaches that may result in a determination that substituted compliance applies.22 to determine whether data stored in a foreign trade repository provides for effective Commission use, in furtherance of the regulatory purposes of the DoddFrank Act. See 78 FR 45345. 20 A finding of comparability may not be possible for a number of reasons, including the fact that the foreign jurisdiction has not yet implemented or finalized particular requirements. 21 78 FR 45343. 22 As explained in the Guidance, such ‘‘approaches used will vary depending on the circumstances relevant to each jurisdiction. One example would include coordinating with the foreign regulators in developing appropriate regulatory changes or new regulations, particularly where changes or new regulations already are being considered or proposed by the foreign regulators or legislative bodies. As another example, the Commission may, after consultation with the appropriate regulators and market participants, include in its substituted compliance determination PO 00000 Frm 00045 Fmt 4703 Sfmt 4703 Finally, the Commission will generally rely on an applicant’s description of the laws and regulations of the foreign jurisdiction in making its comparability determination. The Commission considers an application to be a representation by the applicant that the laws and regulations submitted are in full force and effect, that the description of such laws and regulations is accurate and complete, and that, unless otherwise noted, the scope of such laws and regulations encompasses the swaps activities 23 of SDs and MSPs 24 in the relevant jurisdictions.25 Further, as stated in the Guidance, the Commission expects that an applicant a description of the means by which certain swaps market participants can achieve substituted compliance within the construct of the foreign regulatory regime. The identification of the means by which substituted compliance is achieved would be designed to address the regulatory objectives and outcomes of the relevant Dodd-Frank Act requirements in a manner that does not conflict with a foreign regulatory regime and reduces the likelihood of inconsistent regulatory obligations. For example, the Commission may specify that [SDs] and MSPs in the jurisdiction undertake certain recordkeeping and documentation for swap activities that otherwise is only addressed by the foreign regulatory regime with respect to financial activities generally. In addition, the substituted compliance determination may include provisions for summary compliance and risk reporting to the Commission to allow the Commission to monitor whether the regulatory outcomes are being achieved. By using these approaches, in the interest of comity, the Commission would seek to achieve its regulatory objectives with respect to the Commission’s registrants that are operating in foreign jurisdictions in a manner that works in harmony with the regulatory interests of those jurisdictions.’’ 78 FR 45343–44. 23 ‘‘Swaps activities’’ is defined in Commission regulation 23.600(a)(7) to mean, ‘‘with respect to a registrant, such registrant’s activities related to swaps and any product used to hedge such swaps, including, but not limited to, futures, options, other swaps or security-based swaps, debt or equity securities, foreign currency, physical commodities, and other derivatives.’’ The Commission’s regulations under Part 23 (17 CFR Part 23) are limited in scope to the swaps activities of SDs and MSPs. 24 No SD or MSP that is not legally required to comply with a law or regulation determined to be comparable may voluntarily comply with such law or regulation in lieu of compliance with the CEA and the relevant Commission regulation. Each SD or MSP that seeks to rely on a comparability determination is responsible for determining whether it is subject to the laws and regulations found comparable. Currently, there are no MSPs organized outside the U.S. and the Commission therefore cautions any non-financial entity organized outside the U.S. and applying for registration as an MSP to carefully consider whether the laws and regulations determined to be comparable herein are applicable to such entity. 25 The Commission has provided the relevant foreign regulator(s) with opportunities to review and correct the applicant’s description of such laws and regulations on which the Commission will base its comparability determination. The Commission relies on the accuracy and completeness of such review and any corrections received in making its comparability determinations. A comparability determination based on an inaccurate description of foreign laws and regulations may not be valid. E:\FR\FM\27DEN1.SGM 27DEN1 Federal Register / Vol. 78, No. 249 / Friday, December 27, 2013 / Notices would notify the Commission of any material changes to information submitted in support of a comparability determination (including, but not limited to, changes in the relevant supervisory or regulatory regime) as, depending on the nature of the change, the Commission’s comparability determination may no longer be valid.26 The Guidance provided a detailed discussion of the Commission’s policy regarding the availability of substituted compliance 27 for the Internal Business Conduct Requirements.28 V. Supervisory Arrangement In the Guidance, the Commission stated that, in connection with a determination that substituted compliance is appropriate, it would expect to enter into an appropriate memorandum of understanding (‘‘MOU’’) or similar arrangement 29 with the relevant foreign regulator(s). Although existing arrangements would indicate a foreign regulator’s ability to cooperate and share information, ‘‘going forward, the Commission and relevant foreign supervisor(s) would need to establish supervisory MOUs or other arrangements that provide for information sharing and cooperation in the context of supervising [SDs] and MSPs.’’ 30 The Commission is in the process of developing its registration and supervision regime for provisionallyregistered SDs and MSPs. This new 26 78 FR 45345. 78 FR 45348–50. The Commission notes that registrants and other market participants are responsible for determining whether substituted compliance is available pursuant to the Guidance based on the comparability determination contained herein (including any conditions or exceptions), and its particular status and circumstances. 28 This notice does not address § 23.608 (Restrictions on counterparty clearing relationships) nor § 23.609 (Clearing member risk management). The Commission declines to take up the request for a comparability determination with respect to these regulations due to the Commission’s view that there are not laws or regulations applicable in Hong Kong to compare with the prohibitions and requirements of §§ 23.608 or 23.609. The Commission may provide a comparability determination with respect to these regulations at a later date in consequence of further developments in the law and regulations applicable in Hong Kong. This notice also does not address capital adequacy because the Commission has not yet finalized rules for SDs and MSPs in this area, nor SDR Reporting. The Commission may provide a comparability determination with respect to these requirements at a later date or in a separate notice. 29 An MOU is one type of arrangement between or among regulators. Supervisory arrangements could include, as appropriate, cooperative arrangements that are memorialized and executed as addenda to existing MOUs or, for example, as independent bilateral arrangements, statements of intent, declarations, or letters. 30 78 FR 45344. tkelley on DSK3SPTVN1PROD with NOTICES 27 See VerDate Mar<15>2010 23:48 Dec 26, 2013 Jkt 232001 initiative includes setting forth supervisory arrangements with authorities that have joint jurisdiction over SDs and MSPs that are registered with the Commission and subject to U.S. law. Given the developing nature of the Commission’s regime and the fact that the Commission has not negotiated prior supervisory arrangements with certain authorities, the negotiation of supervisory arrangements presents a unique opportunity to develop close working relationships between and among authorities, as well as highlight any potential issues related to cooperation and information sharing. Accordingly, the Commission is negotiating such a supervisory arrangement with each applicable foreign regulator of an SD or MSP. The Commission expects that the arrangement will establish expectations for ongoing cooperation, address direct access to information,31 provide for notification upon the occurrence of specified events, memorialize understandings related to on-site visits,32 and include protections related to the use and confidentiality of nonpublic information shared pursuant to the arrangement. These arrangements will establish a roadmap for how authorities will consult, cooperate, and share information. As with any such arrangement, however, nothing in these arrangements will supersede domestic laws or resolve potential conflicts of law, such as the application of domestic secrecy or blocking laws to regulated entities. 31 Section 4s(j)(3) and (4) of the CEA and Commission regulation 23.606 require a registered SD or MSP to make all records required to be maintained in accordance with Commission regulation 1.31 available promptly upon request to, among others, representatives of the Commission. See also 7 U.S.C. 6s(f); 17 CFR 23.203. In the Guidance, the Commission states that it ‘‘reserves this right to access records held by registered [SDs] and MSPs, including those that are non-U.S. persons who may comply with the Dodd-Frank recordkeeping requirement through substituted compliance.’’ 78 FR 45345 n. 472; see also id. at 45342 n. 461 (affirming the Commission’s authority under the CEA and its regulations to access books and records held by registered SDs and MSPs as ‘‘a fundamental regulatory tool necessary to properly monitor and examine each registrant’s compliance with the CEA and the regulations adopted pursuant thereto’’). 32 The Commission retains its examination authority, both during the application process as well as upon and after registration of an SD or MSP. See 78 FR 45342 (stating Commission policy that ‘‘eligible entities may comply with a substituted compliance regime under certain circumstances, subject, however, to the Commission’s retention of its examination authority’’) and 45344 n. 471 (stating that the ‘‘Commission may, as it deems appropriate and necessary, conduct an on-site examination of the applicant’’). PO 00000 Frm 00046 Fmt 4703 Sfmt 4703 78855 VI. Comparability Determination and Analysis The following section describes the requirements imposed by specific sections of the CEA and the Commission’s regulations for the Internal Business Conduct Requirements that are the subject of this comparability determination, and the Commission’s regulatory objectives with respect to such requirements. Immediately following a description of the requirement(s) and regulatory objective(s) of the specific Internal Business Conduct Requirements that the requestor submitted for a comparability determination, the Commission provides a description of the foreign jurisdiction’s comparable laws, regulations, or rules and whether such laws, regulations, or rules meet the applicable regulatory objective. The Commission’s determinations in this regard and the discussion in this section are intended to inform the public of the Commission’s views regarding whether the foreign jurisdiction’s laws, regulations, or rules may be comparable and comprehensive as those requirements in the DoddFrank Act (and Commission regulations promulgated thereunder) and therefore, may form the basis of substituted compliance. In turn, the public (in the foreign jurisdiction, in the United States, and elsewhere) retains its ability to present facts and circumstances that would inform the determinations set forth in this notice. As was stated in the Guidance, the Commission recognizes the complex and dynamic nature of the global swap market and the need to take an adaptable approach to cross-border issues, particularly as it continues to work closely with foreign regulators to address potential conflicts with respect to each country’s respective regulatory regime. In this regard, the Commission may review, modify, or expand the determinations herein in light of comments received and future developments. A. Chief Compliance Officer (§ 3.3) Commission Requirement: Implementing section 4s(k) of the CEA, Commission regulation 3.3 generally sets forth the following requirements for SDs and MSPs: • An SD or MSP must designate an individual as Chief Compliance Officer (‘‘CCO’’); • The CCO must have the responsibility and authority to develop the regulatory compliance policies and procedures of the SD or MSP; E:\FR\FM\27DEN1.SGM 27DEN1 tkelley on DSK3SPTVN1PROD with NOTICES 78856 Federal Register / Vol. 78, No. 249 / Friday, December 27, 2013 / Notices • The CCO must report to the board of directors or the senior officer of the SD or MSP; • Only the board of directors or a senior officer may remove the CCO; • The CCO and the board of directors must meet at least once per year; • The CCO must have the background and skills appropriate for the responsibilities of the position; • The CCO must not be subject to disqualification from registration under sections 8a(2) or (3) of the CEA; • Each SD and MSP must include a designation of a CCO in its registration application; • The CCO must administer the regulatory compliance policies of the SD or MSP; • The CCO must take reasonable steps to ensure compliance with the CEA and Commission regulations, and resolve conflicts of interest; • The CCO must establish procedures for detecting and remediating noncompliance issues; • The CCO must annually prepare and sign an ‘‘annual compliance report’’ containing: (i) A description of policies and procedures reasonably designed to ensure compliance; (ii) an assessment of the effectiveness of such policies and procedures; (iii) a description of material non-compliance issues and the action taken; (iv) recommendations of improvements in compliance policies; and (v) a certification by the CCO or CEO that, to the best of such officer’s knowledge and belief, the annual report is accurate and complete under penalty of law; and • The annual compliance report must be furnished to the CFTC within 90 days after the end of the fiscal year of the SD or MSP, simultaneously with its annual financial condition report. Regulatory Objective: The Commission believes that compliance by SDs and MSPs with the CEA and the Commission’s rules greatly contributes to the protection of customers, orderly and fair markets, and the stability and integrity of the market intermediaries registered with the Commission. The Commission expects SDs and MSPs to strictly comply with the CEA and the Commission’s rules and to devote sufficient resources to ensuring such compliance. Thus, through its CCO rule, the Commission seeks to ensure firms have designated a qualified individual as CCO that reports directly to the board of directors or the senior officer of the firm and that has the independence, responsibility, and authority to develop and administer compliance policies and procedures reasonably designed to ensure compliance with the CEA and Commission regulations, resolve VerDate Mar<15>2010 23:48 Dec 26, 2013 Jkt 232001 conflicts of interest, remediate noncompliance issues, and report annually to the Commission and the board or senior officer on compliance of the firm. Comparable Hong Kong Law and Regulations: The applicant has represented to the Commission that the following provisions of law and regulations applicable in Hong Kong are in full force and effect in Hong Kong, and comparable to and as comprehensive as section 4s(k) of the CEA and Commission regulation 3.3. • Hong Kong Banking Ordinance, Section 72B requires all AIs (i.e., banks, restricted license banks and deposittaking companies), including a bank that is registered as an SD, to appoint a manager principally responsible for the compliance function. • The HKMA Supervisory Policy Manual, Module IC–1 provides that the primary role of the compliance function is to ensure that the AI is in compliance with the statutory provisions, regulatory requirements, and codes of conduct applicable to its banking or other regulated activities. To this end, the compliance function must ensure that the compliance policies and procedures developed by it or other departments are adequate and effective. • The HKMA Supervisory Policy Manual, Module IC–1 provides that the compliance function should have appropriate standing and authority within an AI, with a direct reporting line to a designated committee (e.g., Audit Committee) or senior management. AIs are required to have a compliance function that is responsible for ensuring the firm’s compliance with statutory and regulatory requirements. The compliance function must have sufficient authority and independence to function effectively. It should also be able to carry out its duties on its own initiative in all business and operating units of the AI in which compliance risk exists, with unfettered access to any records or files necessary to enable it to conduct its work. • Under the HKMA Supervisory Policy Manual, Module CG–1, the board of directors is responsible for the appointment and removal of senior management, including the compliance manager. The board must meet regularly with senior management and internal control functions (including those responsible for internal audit, risk management and compliance) to review the policies and controls in order to identify areas that need improvement and address significant risks and issues. • The HKMA Supervisory Policy Manual, Module CG–1 provides that senior managers, such as the PO 00000 Frm 00047 Fmt 4703 Sfmt 4703 compliance manager, are required to have appropriate background and skills to enable them to manage and supervise the AI’s internal control and risk management functions, including compliance. Further, the manual also provides guidance for assessing whether senior management, including the CCO, is ‘‘fit and proper.’’ One of the considerations is whether the person has a record of non-compliance with various non-statutory codes or has been reprimanded, censured, disciplined or publicly criticized by professional or regulatory bodies. • The HKMA Supervisory Policy Manual, Module IC–1 provides that the compliance function must monitor and test compliance. The compliance function also must establish a compliance program that sets out its planned activities. • The HKMA Supervisory Policy Manual, Module IC–1 provides that the compliance function must report regularly to senior management on compliance matters. Additionally, the chief executive of an AI must endorse the Certificate of Compliance submitted to the HKMA quarterly to confirm compliance with the specified statutory requirements under the Hong Kong Banking Ordinance. Commission Determination: The Commission finds that the provisions of the Hong Kong Banking Ordinance and the HKMA Supervisory Policy Manual specified above are generally identical in intent to § 3.3 by seeking to ensure firms have designated a qualified individual as the compliance officer that reports directly to a sufficiently senior function of the firm and that has the independence, responsibility, and authority to develop and administer compliance policies and procedures reasonably designed to ensure compliance with the CEA and Commission regulations, remediate noncompliance issues, and report regularly on compliance of the firm. Based on the foregoing and the representations of the applicant, the Commission hereby determines that the provisions of the Hong Kong Banking Ordinance and the HKMA Supervisory Policy Manual that govern the compliance manager and compliance function within an AI are comparable to and as comprehensive as § 3.3, with the exception of § 3.3(f) concerning certifying and furnishing an annual compliance report to the Commission. Notwithstanding that the Commission has not determined that the requirements of the Hong Kong Banking Ordinance and the HKMA Supervisory Policy Manual are comparable to and as comprehensive as § 3.3(f), any SD or E:\FR\FM\27DEN1.SGM 27DEN1 Federal Register / Vol. 78, No. 249 / Friday, December 27, 2013 / Notices MSP to which both § 3.3 and the provisions of the Hong Kong Banking Ordinance and the HKMA Supervisory Policy Manual specified above are applicable would generally be deemed to be in compliance with § 3.3(f) if that SD or MSP complies with the provisions of the Hong Kong Banking Ordinance and the HKMA Supervisory Policy Manual specified above, subject to certifying and furnishing the Commission with the compliance reports required under the provisions of the Hong Kong Banking Ordinance and the HKMA Supervisory Policy Manual specified above in accordance with § 3.3(f). The Commission notes that it generally expects registrants to submit required reports to the Commission in the English language. B. Risk Management Duties (§§ 23.600— 23.609) Section 4s(j) of the CEA requires each SD and MSP to establish internal policies and procedures designed to, among other things, address risk management, monitor compliance with position limits, prevent conflicts of interest, and promote diligent supervision, as well as maintain business continuity and disaster recovery programs.33 The Commission adopted regulations 23.600, 23.601, 23.602, 23.603, 23.605, and 23.606 to implement the statute.34 The Commission also adopted regulation 23.609, which requires certain risk management procedures for SDs or MSPs that are clearing members of a derivatives clearing organization (‘‘DCO’’).35 Collectively, these requirements help to establish a robust and comprehensive internal risk management program for SDs and MSPs with respect to their swaps activities,36 33 7 U.S.C. 6s(j). Final Swap Dealer and MSP Recordkeeping Rule, 77 FR 20128 (April 3, 2012) (relating to risk management program, monitoring of position limits, business continuity and disaster recovery, conflicts of interest policies and procedures, and general information availability, respectively). 35 See Customer Documentation Rule, 77 FR 21278. Also, SDs must comply with Commission regulation 23.608, which prohibits SDs providing clearing services to customers from entering into agreements that would: (i) Disclose the identity of a customer’s original executing counterparty; (ii) limit the number of counterparties a customer may trade with; (iii) impose counterparty-based position limits; (iv) impair a customer’s access to execution of a trade on terms that have a reasonable relationship to the best terms available; or (v) prevent compliance with specified time frames for acceptance of trades into clearing. 36 ‘‘Swaps activities’’ is defined in Commission regulation 23.600(a)(7) to mean, ‘‘with respect to a registrant, such registrant’s activities related to swaps and any product used to hedge such swaps, including, but not limited to, futures, options, other swaps or security-based swaps, debt or equity securities, foreign currency, physical commodities, tkelley on DSK3SPTVN1PROD with NOTICES 34 See VerDate Mar<15>2010 23:48 Dec 26, 2013 Jkt 232001 which is critical to effective systemic risk management for the overall swaps market. In making its comparability determination with regard to these risk management duties, the Commission will consider each regulation individually.37 1. Risk Management Program for SDs and MSPs (§ 23.600) Commission Requirement: Implementing section 4s(j)(2) of the CEA, Commission regulation 23.600 generally requires that: • Each SD or MSP must establish and enforce a risk management program consisting of a system of written risk management policies and procedures designed to monitor and manage the risks associated with the swap activities of the firm, including without limitation, market, credit, liquidity, foreign currency, legal, operational, and settlement risks, and furnish a copy of such policies and procedures to the CFTC upon application for registration and upon request; • The SD or MSP must establish a risk management unit independent from the business trading unit; • The risk management policies and procedures of the SD or MSP must be approved by the firm’s governing body; • Risk tolerance limits and exceptions therefrom must be reviewed and approved quarterly by senior management and annually by the governing body; • The risk management program must have a system for detecting breaches of risk tolerance limits and alerting supervisors and senior management, as appropriate; • The risk management program must account for risks posed by affiliates and be integrated at the consolidated entity level; • The risk management unit must provide senior management and the governing body with quarterly risk exposure reports and upon detection of any material change in the risk exposure of the SD or MSP; • Risk exposure reports must be furnished to the CFTC within five and other derivatives.’’ The Commission’s regulations under 17 CFR Part 23 are limited in scope to the swaps activities of SDs and MSPs. 37 As stated above, this notice does not address § 23.608 (Restrictions on counterparty clearing relationships) nor § 23.609 (Clearing member risk management). The Commission declines to take up the request for a comparability determination with respect to these regulations due to the Commission’s view that there are not laws or regulations applicable in Hong Kong to compare with the prohibitions and requirements of §§ 23.608 or 23.609. The Commission may provide a comparability determination with respect to these regulations at a later date in consequence of further developments in the law and regulations applicable in Hong Kong. PO 00000 Frm 00048 Fmt 4703 Sfmt 4703 78857 business days following provision to senior management; • The risk management program must have a new product policy for assessing the risks of new products prior to engaging in such transactions; • The risk management program must have policies and procedures providing for trading limits, monitoring of trading, processing of trades, and separation of personnel in the trading unit from personnel in the risk management unit; and • The risk management program must be reviewed and tested at least annually and upon any material change in the business of the SD or MSP. Regulatory Objective: Through the required system of risk management, the Commission seeks to ensure that firms are adequately managing the risks of their swaps activities to prevent failure of the SD or MSP, which could result in losses to counterparties doing business with the SD or MSP, and systemic risk more generally. To this end, the Commission believes the risk management program of an SD or MSP must contain at least the following critical elements: • Identification of risk categories; • Establishment of risk tolerance limits for each category of risk and approval of such limits by senior management and the governing body; • An independent risk management unit to administer a risk management program; and • Periodic oversight of risk exposures by senior management and the governing body. Comparable Hong Kong Law and Regulations: The applicant has represented to the Commission that the following provisions of law and regulations applicable in Hong Kong are in full force and effect in Hong Kong, and comparable to and as comprehensive as section 4s(j)(2) of the CEA and Commission regulation 23.600. HKMA represents to the Commission that it generally requires AIs to have adequate risk management policies, procedures, systems and controls to identify, assess, measure, monitor, and control eight types of inherent risks arising from their activities (on and off balance sheet, and including swap activities) under SA–1 Risk-based Supervisory Approach. HKMA also represents to the Commission that the risk management requirements in its guidelines apply to swap activities conducted by AIs. HKMA further represents to the Commission that it has dedicated guidelines on major types of risk (e.g., management of credit (including E:\FR\FM\27DEN1.SGM 27DEN1 tkelley on DSK3SPTVN1PROD with NOTICES 78858 Federal Register / Vol. 78, No. 249 / Friday, December 27, 2013 / Notices counterparty credit), market, liquidity and operational risks, etc.). Specifically: • The HKMA Supervisory Policy Manual, Module IC–1 provides that the board is responsible for articulating risk management strategies. Senior management must develop, and the board must approve, a risk management framework based on risk management strategies that is consistent with the AI’s business goals and risk appetite. Senior management must: formulate detailed policies, procedures and limits for managing different aspects of risk arising from the AI’s business activities; design and implement a risk management framework; and ensure that the relevant control systems within the framework function as intended. The risk management policies and procedures must be approved by the board or its designated committee(s). The board also must exercise oversight over the effectiveness of the risk management framework. • The HKMA Supervisory Policy Manual, Module IC–1 provides that AIs should have a dedicated risk management function. The risk management function must be independent from the risk-taking and operational units which it reviews. The risk management function must have unfettered access to information from the risk-taking and operational units. • The HKMA Supervisory Policy Manual, Module IC–1 provides that a set of limits should be put in place to control an AI’s exposure to various quantifiable risks associated with its business activities and to control different sources of risk concentration. These limits should be documented and approved by the board or its designated committee(s). Limit utilization should be closely monitored, and excesses or exceptions should be reported promptly to senior management for necessary action. • The HKMA Supervisory Policy Manual, Module IC–1 provides that risk management must be conducted on a group-wide basis by managing the relevant risks of the parent bank and its group entities as a whole. • The HKMA Supervisory Policy Manual, Module IC–1 provides that a sound risk management system should include adequate risk measurement, monitoring and reporting systems to support all business activities and related risks. The risk management information system should be capable of reporting excesses in limits and policy exceptions, and alerting management of risk exposures approaching pre-set limits. The risk management information system also should be able to produce information at appropriate VerDate Mar<15>2010 23:48 Dec 26, 2013 Jkt 232001 intervals, including at more frequent intervals in times of stress as required by management. • The HKMA collects internal risk exposure reports from the AIs. AIs are required to submit quarterly capital adequacy ratio returns to the HKMA that address market risk. HKMA also conducts regular surveys on AIs’ derivative exposures. • The HKMA Supervisory Policy Manual, Module IC–1 provides that AIs should have in place an internally approved and well-documented ‘‘new product approval policy’’ which addresses not only the development and approval of entirely new products and services but also significant changes in the features of existing products and services. Commission Determination: The Commission finds that the provisions of the HKMA Supervisory Policy Manual specified above are generally identical in intent to § 23.600 by requiring a system of risk management that seeks to ensure that firms are adequately managing the risks of their swaps activities to prevent failure of the SD or MSP, which could result in losses to counterparties doing business with the SD or MSP, and systemic risk more generally. Specifically, the Commission finds that the provisions of the HKMA Supervisory Policy Manual specified above comprehensively require SDs and MSPs to establish risk management programs containing the following critical elements: • Identification of risk categories; • Establishment of risk tolerance limits for each category of risk and approval of such limits by senior management and the governing body; • An independent risk management unit to administer a risk management program; and • Periodic oversight of risk exposures by senior management and the governing body. Based on the foregoing and the representations of the applicant, the Commission hereby determines that the risk management program requirements of the HKMA Supervisory Policy Manual, as specified above, are comparable to and as comprehensive as § 23.600, with the exception of § 23.600(c)(2) concerning the requirement that each SD and MSP produce a quarterly risk exposure report and provide such report to its senior management, governing body, and the Commission. Notwithstanding that the Commission has not determined that the requirements of the provisions of the HKMA Supervisory Policy Manual are comparable to and as comprehensive as PO 00000 Frm 00049 Fmt 4703 Sfmt 4703 § 23.600(c)(2), any SD or MSP to which both § 23.600 and the provisions of the HKMA Supervisory Policy Manual specified above are applicable would generally be deemed to be in compliance with § 23.600(c)(2) if that SD or MSP complies with the provisions of the HKMA Supervisory Policy Manual specified above, subject to compliance with the requirement that it produce quarterly risk exposure reports and provide such reports to its senior management, governing body, and the Commission in accordance with § 23.600(c)(2). The Commission notes that it generally expects reports furnished to the Commission by registrants to be in the English language. 2. Monitoring of Position Limits (§ 23.601) Commission Requirement: Implementing section 4s(j)(1) of the CEA, Commission regulation 23.601 requires each SD or MSP to establish and enforce written policies and procedures that are reasonably designed to monitor for, and prevent violations of, applicable position limits established by the Commission, a designated contract market (‘‘DCM’’), or a swap execution facility (‘‘SEF’’).38 The policies and procedures must include an early warning system and provide for escalation of violations to senior management (including the firm’s governing body). Regulatory Objective: Generally, position limits are implemented to ensure market integrity, fairness, orderliness, and accurate pricing in the commodity markets. Commission regulation 23.601 thus seeks to ensure that SDs and MSPs have established the necessary policies and procedures to monitor the trading of the firm to prevent violations of applicable position limits established by the Commission, a DCM, or a SEF. As part of its Risk Management Program, § 23.601 is intended to ensure that established position limits are not breached by the SD or MSP. Comparable Hong Kong Law and Regulations: The applicant has represented to the Commission that the following provisions of law and regulations applicable in Hong Kong are in full force and effect in Hong Kong, and comparable to and as comprehensive as section 4s(j)(1) of the 38 The setting of position limits by the Commission, a DCM, or a SEF is subject to requirements under the CEA and Commission regulations other than § 23.601. The setting of position limits and compliance with such limits is not subject to the Commission’s substituted compliance regime. E:\FR\FM\27DEN1.SGM 27DEN1 Federal Register / Vol. 78, No. 249 / Friday, December 27, 2013 / Notices tkelley on DSK3SPTVN1PROD with NOTICES CEA and Commission regulation § 23.601. The applicant represents to the Commission that AIs have a responsibility to comply with all applicable laws and regulations, whether in Hong Kong or outside of Hong Kong, including applicable position limits established by the Commission, a DCM, or a SEF. Under the HKMA Supervisory Policy Manual, module IC–1, General Risk Management Controls paragraph 5.1.3, an AI’s internal control system must cover controls relating to compliance with statutory and regulatory requirements, which would require a system of controls to maintain compliance with applicable position limits established by the Commission, a DCM, or a SEF. AI’s must maintain adequate systems of control to maintain a banking license pursuant to the Banking Ordinance, Schedule 7, paragraph 10.39 Commission Determination: The Commission finds that the HKMA and Banking Ordinance standards specified above are generally identical in intent to § 23.601 by requiring SDs and MSPs to establish necessary policies and procedures to monitor the trading of the firm to prevent violations of applicable position limits established by applicable laws and regulations, including those of the Commission, a DCM, or a SEF. Specifically, the Commission finds that the HKMA and Banking Ordinance standards specified above, while not specific to the issue of position limit compliance, nevertheless comprehensively require SDs and MSPs to monitor for regulatory compliance generally, including monitoring for compliance with position limits set pursuant to applicable law (including the CEA and Commission regulations) and escalation of violations to senior management (including the board of directors) responsible for such compliance. Based on the foregoing and the representations of the applicant, the Commission hereby determines that the compliance monitoring requirements of the HKMA and Banking Ordinance standards, as specified above, are comparable to and as comprehensive as § 23.601. For the avoidance of doubt, the 39 In addition to the foregoing, the applicant also submitted various guidelines and required best practices concerning the setting of internal risk tolerance limits and monitoring for compliance with such internal limits. Although the Commission recognizes these as prudent risk management practices, the Commission does not believe that these provisions are relevant for a comparability determination with respect to § 23.601 because § 23.601 requires monitoring for compliance with external position limits set by the Commission, a DCM, or a SEF. VerDate Mar<15>2010 23:48 Dec 26, 2013 Jkt 232001 Commission notes that this determination may not be relied on to relieve an SD or MSP from its obligation to strictly comply with any applicable position limit established by the Commission, a DCM, or a SEF. 3. Diligent Supervision (§ 23.602) Commission Requirement: Commission regulation 23.602 implements section 4s(h)(1)(B) of the CEA and requires each SD and MSP to establish a system to diligently supervise all activities relating to its business performed by its partners, members, officers, employees, and agents. The system must be reasonably designed to achieve compliance with the CEA and CFTC regulations. Commission regulation 23.602 requires that the supervisory system must specifically designate qualified persons with authority to carry out the supervisory responsibilities of the SD or MSP for all activities relating to its business as an SD or MSP. Regulatory Objective: The Commission’s diligent supervision rule seeks to ensure that SDs and MSPs strictly comply with the CEA and the Commission’s rules. To this end, through § 23.602, the Commission seeks to ensure that each SD and MSP not only establishes the necessary policies and procedures that would lead to compliance with the CEA and Commission regulations, but also establishes an effective system of internal oversight and enforcement of such policies and procedures to ensure that such policies and procedures are diligently followed. Comparable Hong Kong Law and Regulations: The applicant has represented to the Commission that the following provisions of law and regulations applicable in Hong Kong are in full force and effect in Hong Kong, and comparable to and as comprehensive as section 4s(h)(1)(B) of the CEA and Commission regulation 23.602. • The HKMA Supervisory Policy Manual, Module CG–1 provides that the board is ultimately responsible for overseeing senior management to operate within the risk appetite and strategies prescribed by the board, on a prudent basis and in accordance with applicable laws, regulations and supervisory standards. • The HKMA Supervisory Policy Manual, Module IC–1 provides that an AI’s internal control system should, among others, cover controls relating to compliance with statutory and regulatory requirements. • The Hong Kong Banking Ordinance provides that senior management are PO 00000 Frm 00050 Fmt 4703 Sfmt 4703 78859 responsible for carrying out the supervisory responsibilities of the AIs, and they can be personally liable for breaches of the Banking Ordinance committed by AIs. Commission Determination: The Commission finds that the provisions of the Hong Kong Banking Ordinance and the HKMA Supervisory Policy Manual specified above are generally identical in intent to § 23.602 because such standards seek to ensure that SDs and MSPs strictly comply with applicable law, which would include the CEA and the Commission’s regulations. Through the provisions of the Hong Kong Banking Ordinance and the HKMA Supervisory Policy Manual specified above, Hong Kong laws and regulations seek to ensure that each SD and MSP not only establishes the necessary policies and procedures that would lead to compliance with applicable law, which would include the CEA and Commission regulations, but also establishes an effective system of internal oversight and enforcement of such policies and procedures to ensure that such policies and procedures are diligently followed. Based on the foregoing and the representations of the applicant, the Commission hereby determines that the internal supervision requirements of the provisions of the Hong Kong Banking Ordinance and the HKMA Supervisory Policy Manual, as specified above, are comparable to and as comprehensive as § 23.602. 4. Business Continuity and Disaster Recovery (§ 23.603) Commission Requirement: To ensure the proper functioning of the swaps markets and the prevention of systemic risk more generally, Commission regulation 23.603 requires each SD and MSP, as part of its risk management program, to establish a business continuity and disaster recovery plan that includes procedures for, and the maintenance of, back-up facilities, systems, infrastructure, personnel, and other resources to achieve the timely recovery of data and documentation and to resume operations generally within the next business day after the disruption. Regulatory Objective: Commission regulation 23.603 is intended to ensure that any market disruption affecting SDs and MSPs, whether caused by natural disaster or otherwise, is minimized in length and severity. To that end, this requirement seeks to ensure that entities adequately plan for disruptions and devote sufficient resources capable of carrying out an appropriate plan within one business day, if necessary. E:\FR\FM\27DEN1.SGM 27DEN1 78860 Federal Register / Vol. 78, No. 249 / Friday, December 27, 2013 / Notices Comparable Hong Kong Law and Regulations: The applicant has represented to the Commission that the following provisions of law and regulations applicable in Hong Kong are in full force and effect in Hong Kong, and comparable to and as comprehensive as Commission regulation 23.603. • HKMA Supervisory Policy Manual, Module TM–G–2 on Business Continuity Planning requires all AIs to have adequate and regularly tested business continuity plans. Commission Determination: The Commission finds that the provisions of the HKMA Supervisory Policy Manual specified above are generally identical in intent to § 23.603 because such standards seek to ensure that any market disruption affecting SDs and MSPs, whether caused by natural disaster or otherwise, is minimized in length and severity. To that end, the Commission finds that the provisions of the HKMA Supervisory Policy Manual specified above seek to ensure that entities adequately plan for disruptions and devote sufficient resources capable of carrying out an appropriate plan in a timely manner. Based on the foregoing and the representations of the applicant, the Commission hereby determines that the business continuity and disaster recovery requirements of the provisions of the HKMA Supervisory Policy Manual, as specified above, are comparable to and as comprehensive as § 23.603. tkelley on DSK3SPTVN1PROD with NOTICES 5. Conflicts of Interest (§ 23.605) Commission Requirement: Section 4s(j)(5) of the CEA and Commission regulation 23.605(c) generally require each SD or MSP to establish structural and institutional safeguards to ensure that the activities of any person within the firm relating to research or analysis of the price or market for any commodity or swap are separated by appropriate informational partitions within the firm from the review, pressure, or oversight of persons whose involvement in pricing, trading, or clearing activities might potentially bias their judgment or supervision. In addition, section 4s(j)(5) of the CEA and Commission regulation 23.605(d)(1) generally prohibits an SD or MSP from directly or indirectly interfering with or attempting to influence the decision of any clearing unit of any affiliated clearing member of a DCO to provide clearing services and activities to a particular customer, including: • Whether to offer clearing services to a particular customer; VerDate Mar<15>2010 23:48 Dec 26, 2013 Jkt 232001 • Whether to accept a particular customer for clearing derivatives; • Whether to submit a customer’s transaction to a particular DCO; • Whether to set or adjust risk tolerance levels for a particular customer; or • Whether to set a customer’s fees based on criteria other than those generally available and applicable to other customers. Commission regulation 23.605(d)(2) generally requires each SD or MSP to create and maintain an appropriate informational partition between business trading units of the SD or MSP and clearing units of any affiliated clearing member of a DCO to reasonably ensure compliance with the Act and the prohibitions set forth in § 23.605(d)(1) outlined above. The Commission observes that § 23.605(d) works in tandem with Commission regulation 1.71, which requires FCMs that are clearing members of a DCO and affiliated with an SD or MSP to create and maintain an appropriate informational partition between business trading units of the SD or MSP and clearing units of the FCM to reasonably ensure compliance with the Act and the prohibitions set forth in § 1.71(d)(1), which are the same as the prohibitions set forth in § 23.605(d)(1) outlined above. Finally, § 23.605(e) requires that each SD or MSP have policies and procedures that mandate the disclosure to counterparties of material incentives or conflicts of interest regarding the decision of a counterparty to execute a derivative on a swap execution facility or DCM or to clear a derivative through a DCO. Regulatory Objective: Commission regulation 23.605(c) seeks to ensure that research provided to the general public by an SD or MSP is unbiased and free from the influence of the interests of an SD or MSP arising from the SD’s or MSP’s trading business. In addition, the § 23.605(d) (working in tandem with § 1.71) seeks to ensure open access to the clearing of swaps by requiring that access to and the provision of clearing services provided by an affiliate of an SD or MSP are not influenced by the interests of an SD’s or MSP’s trading business. Finally, § 23.605(e) seeks to ensure equal access to trading venues and clearinghouses, as well as orderly and fair markets, by requiring that each SD and MSP disclose to counterparties any material incentives or conflicts of interest regarding the decision of a counterparty to execute a derivative on a SEF or DCM, or to clear a derivative through a DCO. PO 00000 Frm 00051 Fmt 4703 Sfmt 4703 Comparable Hong Kong Law and Regulations: The applicants have represented to the Commission that the following provisions of law and regulations applicable in Hong Kong are in full force and effect in Hong Kong, and comparable to and as comprehensive as Commission regulation 23.605. The applicant represents to the Commission that AIs that are active in the OTC derivative market are typically also registered with the Hong Kong Securities and Futures Commission (‘‘HKSFC’’) and hence subject to the HKSFC’s Code of Conduct. These AI’s registered with the HKSFC include the current SD established in Hong Kong. Pursuant to Section 16 of the HKSFC’s Code of Conduct, registrants must have: • Mechanisms ensuring that analysts’ trading activities or financial interests do not prejudice their investment research and recommendations; • Mechanisms ensuring that analysts’ investment research and recommendations are not prejudiced by the trading activities, financial interests or business relationships of the firms that employ them; • Reporting lines for analysts and their compensation arrangements that are structured to eliminate or severely limit actual and potential conflicts of interest; • Written internal procedures or controls to identify and eliminate, avoid, manage, or disclose actual and potential analyst conflicts of interest; • Procedures to ensure that undue influence of securities issuers, institutional investors, and other outside parties on analysts is eliminated or managed; • Controls to ensure that disclosures of actual and potential conflicts of interest are complete, timely, clear, concise, specific, and prominent; and • Policies to ensure that analysts are held to high integrity standards. The HKMA Supervisory Policy Manual, Module CG–1 requires that the board of directors of an AI establish, implement, and maintain written policies that address the various conflicts of interest that may arise in the AI’s business, and that provide for the prevention or management of these conflicts. In addition, the Banking Ordinance requires an AI to carry on its business with integrity, prudence and the appropriate degree of professional competence. The applicant represents that if an AI permits conflicts of interest (whether general or particular) to continue, it would raise doubts with the HKMA as to whether the AI is carrying on its business with integrity, prudence E:\FR\FM\27DEN1.SGM 27DEN1 tkelley on DSK3SPTVN1PROD with NOTICES Federal Register / Vol. 78, No. 249 / Friday, December 27, 2013 / Notices and the appropriate degree of professional competence. Carrying on business in such a manner is one of the continuing authorization criteria under the Banking Ordinance. A failure to comply with such criterion is a ground for revocation of that AI’s authorization to conduct banking or deposit-taking business in Hong Kong. Finally, the HKMA has represented to the Commission that, as part of its oversight and enforcement of the foregoing standards for AIs, the HKMA would require any AI (including an AI that is an SD) to adopt measures to prevent or manage any conflicts of interests that may areis or be discovered, including those involving the provision of clearing services by a clearing member of a DCO that is an affiliate of the AI, or the decision of a counterparty to execute a derivative on a SEF or DCM, or clear a derivative through a DCO. The measures include information barriers, segregation of duties, and, as appropriate, disclosures. Commission Determination: The Commission finds that the HKSFC and Banking Ordinance standards specified above with respect to conflicts of interest that may arise in producing or distributing research are generally identical in intent to § 23.605(c) because such standards seek to ensure that research provided to the general public by an SD is unbiased and free from the influence of the interests of an SD arising from the SD’s trading business. With respect to conflicts of interest that may arise in the provision of clearing services by an affiliate of an SD or MSP, the Commission further finds that although the general conflicts of interest prevention requirements in the Banking Ordinance and the HKMA Supervisory Policy Manual do not require with specificity that access to and the provision of clearing services provided by an affiliate of an SD or MSP not be improperly influenced by the interests of an SD’s or MSP’s trading business, such general requirements would require prevention and remediation of such improper influence when recognized or discovered. Thus such standards would ensure open access to clearing. Finally, although not as specific as the requirements of § 23.605(e) (Undue influence on counterparties), the Commission finds that the general disclosure requirements specified above would ensure equal access to trading venues and clearinghouses by requiring that each SD and MSP disclose to counterparties any material incentives or conflicts of interest regarding the decision of a counterparty to execute a VerDate Mar<15>2010 23:48 Dec 26, 2013 Jkt 232001 derivative on a SEF or DCM, or to clear a derivative through a DCO. Based on the foregoing and the representations of the applicant, the Commission hereby determines that the requirements found in Hong Kong’s laws and regulations specified above, in relation to conflicts of interest are comparable to and as comprehensive as § 23.605. 6. Availability of Information for Disclosure and Inspection (§ 23.606) Commission Requirement: Commission regulation 23.606 implements sections 4s(j)(3) and (4) of the CEA, and requires each SD and MSP to disclose to the Commission, and an SD’s or MSP’s U.S. prudential regulator (if any) comprehensive information about its swap activities, and to establish and maintain reliable internal data capture, processing, storage, and other operational systems sufficient to capture, process, record, store, and produce all information necessary to satisfy its duties under the CEA and Commission regulations. Such systems must be designed to provide such information to the Commission and an SD’s or MSP’s U.S. prudential regulator within the time frames set forth in the CEA and Commission regulations and upon request. Regulatory Objective: Commission regulation 23.606 seeks to ensure that each SD and MSP captures and maintains comprehensive information about their swap activities, and is able to retrieve and disclose such information to the Commission and its U.S. prudential regulator, if any, as necessary for compliance with the CEA and the Commission’s regulations and for purposes of Commission oversight, as well as oversight by the SD’s or MSP’s U.S. prudential regulator, if any. The Commission observes that it would be impossible to meet the regulatory objective of § 23.606 unless the required information is available to the Commission and any U.S. prudential regulator under the foreign legal regime. Thus, a comparability determination with respect to the information access provisions of § 23.606 would be premised on whether the relevant information would be available to the Commission and any U.S. prudential regulator of the SD or MSP, not on whether an SD or MSP must disclose comprehensive information to its regulator in its home jurisdiction. Comparable Hong Kong Law and Regulations: The applicant has represented to the Commission that the following provisions of law and regulations applicable in Hong Kong are PO 00000 Frm 00052 Fmt 4703 Sfmt 4703 78861 in full force and effect in Hong Kong, and comparable to and as comprehensive as Commission regulation 23.606. Under Section 56 of the Hong Kong Banking Ordinance, AIs are required to produce records and information whenever requested by the HKMA, including information and records relating to the AI’s OTC derivatives or swaps activities. Under the Banking Ordinance, the failure to produce records and information when requested by the HKMA is a criminal offense. The HKMA represents that in order to produce records and information whenever requested by the HKMA, AIs must necessarily have adequate systems and infrastructure to enable them to retrieve such records and information. Commission Determination: The Commission finds that the Banking Ordinance standards specified above are generally identical in intent to § 23.606 because such standards seek to ensure that AIs capture and store comprehensive information about their swap activities, and are able to retrieve and disclose such information as necessary for compliance with applicable law and for purposes of regulatory oversight. Based on the foregoing and the representations of the applicant, the Commission hereby determines that the requirements of the Hong Kong Banking Ordinance with respect to the availability of information for inspection and disclosure, as specified above, are comparable to, and as comprehensive as, § 23.606, with the exception of § 23.606(a)(2) concerning the requirement that an SD or MSP make information required by § 23.606(a)(1) available promptly upon request to Commission staff and the staff of an applicable U.S. prudential regulator. The applicant has not submitted any provision of law or regulations applicable in Hong Kong upon which the Commission could make a finding that SDs and MSPs would be required to retrieve and disclose comprehensive information about their swap activities to the Commission or any U.S. prudential regulator as necessary for compliance with the CEA and Commission regulations, and for purposes of Commission oversight and the oversight of any U.S. prudential regulator. Notwithstanding that the Commission has not determined that the requirements of the Hong Kong Banking Ordinance are comparable to and as comprehensive as § 23.606(a)(2), any SD or MSP to which both § 23.606 and the Banking Ordinance standards specified above are applicable would generally be E:\FR\FM\27DEN1.SGM 27DEN1 78862 Federal Register / Vol. 78, No. 249 / Friday, December 27, 2013 / Notices tkelley on DSK3SPTVN1PROD with NOTICES deemed to be in compliance with § 23.606(a)(2) if that SD or MSP complies with the Banking Ordinance standards specified above, subject to compliance with the requirement that it produce information to Commission staff and the staff of an applicable U.S. prudential regulator in accordance with § 23.606(a)(2). C. Swap Data Recordkeeping (§§ 23.201 and 23.203) Commission Requirement: Sections 4s(f)(1)(B) and 4s(g)(1) of the CEA, and Commission regulation 23.201 generally require SDs and MSPs to retain records of each transaction, each position held, general business records (including records related to complaints and sales and marketing materials), records related to governance, financial records, records of data reported to SDRs, and records of real-time reporting data along with a record of the date and time the SD or MSP made such reports. Transaction records must be kept in a form and manner identifiable and searchable by transaction and counterparty. Commission regulation 23.203, requires SDs and MSPs to maintain records of a swap transaction until the termination, maturity, expiration, transfer, assignment, or novation date of the transaction, and for a period of five years after such date. Records must be ‘‘readily accessible’’ for the first 2 years of the 5 year retention period (consistent with § 1.31). The Commission notes that the comparability determination below with respect to §§ 23.201 and 23.203 encompasses both swap data recordkeeping generally and swap data recordkeeping relating to complaints and marketing and sales materials in accordance with § 23.201(b)(3) and (4).40 Regulatory Objective: Through the Commission’s regulations requiring SDs and MSPs to keep comprehensive records of their swap transactions and related data, the Commission seeks to ensure the effectiveness of the internal controls of SDs and MSPs, and transparency in the swaps market for regulators and market participants. The Commission’s regulations require SDs and MSPs to keep swap data in a level of detail sufficient to enable regulatory authorities to understand an SD’s or MSP’s swaps business and to assess its swaps exposure. By requiring comprehensive records of swap data, the Commission seeks to 40 See the Guidance for a discussion of the availability of substituted compliance with respect to swap data recordkeeping, 78 FR 45332–33. VerDate Mar<15>2010 23:48 Dec 26, 2013 Jkt 232001 ensure that SDs and MSPs employ effective risk management, and strictly comply with Commission regulations. Further, such records facilitate effective regulatory oversight. The Commission observes that it would be impossible to meet the regulatory objective of §§ 23.201 and 23.203 unless the required information is available to the Commission and any U.S. prudential regulator under the foreign legal regime. Thus, a comparability determination with respect to the information access provisions of § 23.203 would be premised on whether the relevant information would be available to the Commission and any U.S. prudential regulator of the SD or MSP, not on whether an SD or MSP must disclose comprehensive information to its regulator in its home jurisdiction. Comparable Hong Kong Law and Regulations: The applicant has represented to the Commission that the following provisions of law and regulations applicable in Hong Kong are in full force and effect in Hong Kong, and comparable to and as comprehensive as sections 4s(f)(1)(B) and 4s(g)(1) of the CEA and §§ 23.201 and 23.203. Section 20 of Schedule 2 to the Hong Kong Anti-Money Laundering and Counter-Terrorist Financing (Financial Institution) Ordinance (Cap 615) (the ‘‘AML–CTF Ordinance’’) provides that financial institutions must keep all documents, data, and information related to each transaction it carries out. The AML–CTF Ordinance provides that financial institutions must keep all files relating to each customer account and all business correspondence with each customer. The AML–CTF Ordinance provides that transaction records must be kept for six years after the transaction is completed. The HKMA represents to the Commission that the recordkeeping requirements in the AML–CTF Ordinance apply to all transactions that an AI carries out with each of its customers, including swap and OTC derivative transactions.41 Commission Determination: The Commission finds that the Hong Kong 41 The HKMA noted that a record keeping requirement specific to OTC derivative transactions is intended to be included in the forthcoming law implementing the regulatory regime for such transactions. Pursuant to such regulatory regime, the HKMA tentatively expects that records of OTC derivatives transactions (including swaps) will be required to be maintained for the duration of the contract plus six years thereafter. The retention period for voice recordings is to be decided. The HKMA will set out specific recordkeeping requirements in the regulations or guidelines to be issued to supplement the new regulatory regime. PO 00000 Frm 00053 Fmt 4703 Sfmt 4703 standards specified above are generally identical in intent to §§ 23.201 and 23.203 because such standards seek to ensure the effectiveness of the internal controls of SDs and MSPs, and transparency in the swaps market for regulators and market participants. In addition, the Commission finds that the Hong Kong standards specified above require SDs and MSPs to keep swap data in a level of detail sufficient to enable regulatory authorities to understand an SD’s or MSP’s swaps business and to assess its swaps exposure. Finally, the Commission finds that the Hong Kong standards specified above, by requiring comprehensive records of swap data, seek to ensure that SDs and MSPs employ effective risk management, seek to ensure that SDs and MSPs strictly comply with applicable regulatory requirements (including the CEA and Commission regulations), and that such records facilitate effective regulatory oversight. Based on the foregoing and the representations of the applicant, the Commission hereby determines that the recordkeeping requirements of the Hong Kong AML–CTF Ordinance with respect to swap data recordkeeping, as specified above, are comparable to, and as comprehensive as, §§ 23.201 and 23.203, with the exception of § 23.203(b)(2) concerning the requirement that an SD or MSPs make records required by § 23.201 open to inspection by any representative of the Commission, the United States Department of Justice, or any applicable U.S. prudential regulator. The applicant has not submitted any provision of law or regulations applicable in Hong Kong upon which the Commission could make a finding that SDs and MSPs would be required to make records required by § 23.201 open to inspection by any representative of the Commission, the United States Department of Justice, or any applicable U.S. prudential regulator. Notwithstanding that the Commission has not determined that the requirements of the Hong Kong AML– CTF Ordinance are comparable to and as comprehensive as § 23.203(b)(2), any SD or MSP to which both § 23.203 and the Hong Kong AML–CTF Ordinance are applicable would generally be deemed to be in compliance with § 23.203(b)(2) if that SD or MSP complies with the Hong Kong AML– CTF Ordinance, subject to compliance with the requirement that it make records required by § 23.201 open to inspection by any representative of the Commission, the United States Department of Justice, or any applicable E:\FR\FM\27DEN1.SGM 27DEN1 Federal Register / Vol. 78, No. 249 / Friday, December 27, 2013 / Notices U.S. prudential regulator in accordance with § 23.203(b)(2). Issued in Washington, DC on December 20, 2013, by the Commission. Melissa D. Jurgens, Secretary of the Commission. Appendices to Comparability Determination for Hong Kong: Certain Entity-Level Requirements Appendix 1—Commission Voting Summary On this matter, Chairman Gensler and Commissioners Chilton and Wetjen voted in the affirmative. Commissioner O’Malia voted in the negative. Appendix 2—Statement of Chairman Gary Gensler and Commissioners Chilton and Wetjen We support the Commission’s approval of broad comparability determinations that will be used for substituted compliance purposes. For each of the six jurisdictions that has registered swap dealers, we carefully reviewed each regulatory provision of the foreign jurisdictions submitted to us and compared the provision’s intended outcome to the Commission’s own regulatory objectives. The resulting comparability determinations for entity-level requirements permit non-U.S. swap dealers to comply with regulations in their home jurisdiction as a substitute for compliance with the relevant Commission regulations. These determinations reflect the Commission’s commitment to coordinating our efforts to bring transparency to the swaps market and reduce its risks to the public. The comparability findings for the entity-level requirements are a testament to the comparability of these regulatory systems as we work together in building a strong international regulatory framework. In addition, we are pleased that the Commission was able to find comparability with respect to swap-specific transactionlevel requirements in the European Union and Japan. The Commission attained this benchmark by working cooperatively with authorities in Australia, Canada, the European Union, Hong Kong, Japan, and Switzerland to reach mutual agreement. The Commission looks forward to continuing to collaborate with both foreign authorities and market participants to build on this progress in the months and years ahead. tkelley on DSK3SPTVN1PROD with NOTICES Appendix 3—Dissenting Statement of Commissioner Scott D. O’Malia I respectfully dissent from the Commodity Futures Trading Commission’s (‘‘Commission’’) approval of the Notices of Comparability Determinations for Certain Requirements under the laws of Australia, Canada, the European Union, Hong Kong, Japan, and Switzerland (collectively, ‘‘Notices’’). While I support the narrow comparability determinations that the Commission has made, moving forward, the Commission must collaborate with foreign regulators to harmonize our respective regimes consistent with the G–20 reforms. VerDate Mar<15>2010 23:48 Dec 26, 2013 Jkt 232001 However, I cannot support the Notices because they: (1) Are based on the legally unsound cross-border guidance (‘‘Guidance’’); 1 (2) are the result of a flawed substituted compliance process; and (3) fail to provide a clear path moving forward. If the Commission’s objective for substituted compliance is to develop a narrow rule-byrule approach that leaves unanswered major regulatory gaps between our regulatory framework and foreign jurisdictions, then I believe that the Commission has successfully achieved its goal today. Determinations Based on Legally Unsound Guidance As I previously stated in my dissent, the Guidance fails to articulate a valid statutory foundation for its overbroad scope and inconsistently applies the statute to different activities.2 Section 2(i) of the Commodity Exchange Act (‘‘CEA’’) states that the Commission does not have jurisdiction over foreign activities unless ‘‘those activities have a direct and significant connection with activities in, or effect on, commerce of the United States . . .’’ 3 However, the Commission never properly articulated how and when this limiting standard on the Commission’s extraterritorial reach is met, which would trigger the application of Title VII of the Dodd-Frank Act 4 and any Commission regulations promulgated thereunder to swap activities that are outside of the United States. Given this statutorily unsound interpretation of the Commission’s extraterritorial authority, the Commission often applies CEA section 2(i) inconsistently and arbitrarily to foreign activities. Accordingly, because the Commission is relying on the legally deficient Guidance to make its substituted compliance determinations, and for the reasons discussed below, I cannot support the Notices. The Commission should have collaborated with foreign regulators to agree on and implement a workable regime of substituted compliance, and then should have made determinations pursuant to that regime. Flawed Substituted Compliance Process Substituted compliance should not be a case of picking a set of foreign rules identical to our rules, determining them to be ‘‘comparable,’’ but then making no determination regarding rules that require extensive gap analysis to assess to what extent each jurisdiction is, or is not, comparable based on overall outcomes of the regulatory regimes. While I support the narrow comparability determinations that the Commission has made, I am concerned that in a rush to provide some relief, the Commission has made substituted compliance determinations that only afford narrow relief and fail to address major regulatory gaps between our domestic 1 Interpretive Guidance and Policy Statement Regarding Compliance with Certain Swap Regulations, 78 FR 45292 (Jul. 26, 2013). 2 http://www.cftc.gov/PressRoom/ SpeechesTestimony/omaliastatement071213b. 3 CEA section 2(i); 7 U.S.C. 2(i). 4 Title VII of the Dodd-Frank Wall Street Reform and Consumer Protection Act, Public Law 111–203, 124 Stat. 1376 (2010). PO 00000 Frm 00054 Fmt 4703 Sfmt 4703 78863 regulatory framework and foreign jurisdictions. I will address a few examples below. First, earlier this year, the OTC Derivatives Regulators Group (‘‘ODRG’’) agreed to a number of substantive understandings to improve the cross-border implementation of over-the-counter derivatives reforms.5 The ODRG specifically agreed that a flexible, outcomes-based approach, based on a broad category-by-category basis, should form the basis of comparability determinations.6 However, instead of following this approach, the Commission has made its comparability determinations on a rule-byrule basis. For example, in Japan’s Comparability Determination for Transaction-Level Requirements, the Commission has made a positive comparability determination for some of the detailed requirements under the swap trading relationship documentation provisions, but not for other requirements.7 This detailed approach clearly contravenes the ODRG’s understanding. Second, in several areas, the Commission has declined to consider a request for a comparability determination, and has also failed to provide an analysis regarding the extent to which the other jurisdiction is, or is not, comparable. For example, the Commission has declined to address or provide any clarity regarding the European Union’s regulatory data reporting determination, even though the European Union’s reporting regime is set to begin on February 12, 2014. Although the Commission has provided some limited relief with respect to regulatory data reporting, the lack of clarity creates unnecessary uncertainty, especially when the European Union’s reporting regime is set to begin in less than two months. Similarly, Japan receives no consideration for its mandatory clearing requirement, even though the Commission considers Japan’s legal framework to be comparable to the U.S. framework. While the Commission has declined to provide even a partial comparability determination, at least in this instance the Commission has provided a reason: the differences in the scope of entities and products subject to the clearing requirement.8 Such treatment creates uncertainty and is contrary to increased global harmonization efforts. Third, in the Commission’s rush to meet the artificial deadline of December 21, 2013, as established in the Exemptive Order Regarding Compliance with Certain Swap 5 http://www.cftc.gov/PressRoom/PressReleases/ pr6678–13. 6 http://www.cftc.gov/ucm/groups/public/@ newsroom/documents/file/odrgreport.pdf. The ODRG agreed to six understandings. Understanding number 2 states that ‘‘[a] flexible, outcomes-based approach should form the basis of final assessments regarding equivalence or substituted compliance.’’ 7 The Commission made a positive comparability determination for Commission regulations 23.504(a)(2), (b)(1), (b)(2), (b)(3), (b)(4), (c), and (d), but not for Commission regulations 23.504(b)(5) and (b)(6). 8 Yen-denominated interest rate swaps are subject to the mandatory clearing requirement in both the U.S. and Japan. E:\FR\FM\27DEN1.SGM 27DEN1 78864 Federal Register / Vol. 78, No. 249 / Friday, December 27, 2013 / Notices tkelley on DSK3SPTVN1PROD with NOTICES Regulations (‘‘Exemptive Order’’),9 the Commission failed to complete an important piece of the cross-border regime, namely, supervisory memoranda of understanding (‘‘MOUs’’) between the Commission and fellow regulators. I have previously stated that these MOUs, if done right, can be a key part of the global harmonization effort because they provide mutually agreed-upon solutions for differences in regulatory regimes.10 Accordingly, I stated that the Commission should be able to review MOUs alongside the respective comparability determinations and vote on them at the same time. Without these MOUs, our fellow regulators are left wondering whether and how any differences, such as direct access to books and records, will be resolved. Finally, as I have consistently maintained, the substituted compliance process should allow other regulatory bodies to engage with the full Commission.11 While I am pleased that the Notices are being voted on by the Commission, the full Commission only gained access to the comment letters from foreign regulators on the Commission’s comparability determination draft proposals a few days ago. This is hardly a transparent process. Unclear Path Forward Looking forward to next steps, the Commission must provide answers to several outstanding questions regarding these comparability determinations. In doing so, the Commission must collaborate with foreign regulators to increase global harmonization. First, there is uncertainty surrounding the timing and outcome of the MOUs. Critical questions regarding information sharing, cooperation, supervision, and enforcement will remain unanswered until the Commission and our fellow regulators execute these MOUs. Second, the Commission has issued timelimited no-action relief for the swap data repository reporting requirements. These comparability determinations will be done as separate notices. However, the timing and process for these determinations remain uncertain. Third, the Commission has failed to provide clarity on the process for addressing the comparability determinations that it declined to undertake at this time. The Notices only state that the Commission may address these requests in a separate notice at a later date given further developments in the law and regulations of other jurisdictions. To promote certainty in the financial markets, the Commission must provide a clear path forward for market participants and foreign regulators. The following steps would be a better approach: (1) The Commission should extend the Exemptive Order to allow foreign regulators to further implement their 9 Exemptive Order Regarding Compliance With Certain Swap Regulations, 78 FR 43785 (Jul. 22, 2013). 10 http://www.cftc.gov/PressRoom/ SpeechesTestimony/opaomalia-29. 11 http://www.cftc.gov/PressRoom/ SpeechesTestimony/omaliastatement071213b. VerDate Mar<15>2010 23:48 Dec 26, 2013 Jkt 232001 regulatory regimes and coordinate with them to implement a harmonized substituted compliance process; (2) the Commission should implement a flexible, outcomes-based approach to the substituted compliance process and apply it similarly to all jurisdictions; and (3) the Commission should work closely with our fellow regulators to expeditiously implement MOUs that resolve regulatory differences and address regulatory oversight issues. Conclusion While I support the narrow comparability determinations that the Commission has made, it was my hope that the Commission would work with foreign regulators to implement a substituted compliance process that would increase the global harmonization effort. I am disappointed that the Commission has failed to implement such a process. I do believe that in the longer term, the swaps regulations of the major jurisdictions will converge. At this time, however, the Commission’s comparability determinations have done little to alleviate the burden of regulatory uncertainty and duplicative compliance with both U.S. and foreign regulations. The G–20 process delineated and put in place the swaps market reforms in G–20 member nations. It is then no surprise that the Commission must learn to coordinate with foreign regulators to minimize confusion and disruption in bringing much needed clarity to the swaps market. For all these shortcomings, I respectfully dissent from the Commission’s approval of the Notices. [FR Doc. 2013–30975 Filed 12–26–13; 8:45 am] BILLING CODE 6351–01–P COMMODITY FUTURES TRADING COMMISSION Comparability Determination for Australia: Certain Entity-Level Requirements Commodity Futures Trading Commission. ACTION: Notice of Comparability Determination for Certain Requirements under Australian Regulation. AGENCY: The following is the analysis and determination of the Commodity Futures Trading Commission (‘‘Commission’’) regarding certain parts of a request by the Australian Bankers Association (‘‘ABA’’) that the Commission determine that laws and regulations applicable in in the Commonwealth of Australia (‘‘Australia’’) provide a sufficient basis for an affirmative finding of comparability with respect to the following regulatory obligations applicable to swap dealers (‘‘SDs’’) and major swap participants (‘‘MSPs’’) registered with the Commission: (i) Chief compliance officer; (ii) risk SUMMARY: PO 00000 Frm 00055 Fmt 4703 Sfmt 4703 management; and (iii) swap data recordkeeping (collectively, the ‘‘Internal Business Conduct Requirements’’). DATES: Effective Date: This determination will become effective immediately upon publication in the Federal Register. FOR FURTHER INFORMATION CONTACT: Gary Barnett, Director, 202–418–5977, gbarnett@cftc.gov, Frank Fisanich, Chief Counsel, 202–418–5949, ffisanich@ cftc.gov, Adam Kezsbom, Special Counsel, 202–418–5372, akezsbom@ cftc.gov, Israel Goodman, Special Counsel, 202–418–6715, igoodman@ cftc.gov, Division of Swap Dealer and Intermediary Oversight, Commodity Futures Trading Commission, Three Lafayette Centre, 1155 21st Street, NW., Washington, DC 20581. SUPPLEMENTARY INFORMATION: I. Introduction On July 26, 2013, the Commission published in the Federal Register its ‘‘Interpretive Guidance and Policy Statement Regarding Compliance with Certain Swap Regulations’’ (the ‘‘Guidance’’).1 In the Guidance, the Commission set forth its interpretation of the manner in which it believes that section 2(i) of the Commodity Exchange Act (‘‘CEA’’) applies Title VII’s swap provisions to activities outside the U.S. and informed the public of some of the policies that it expects to follow, generally speaking, in applying Title VII and certain Commission regulations in contexts covered by section 2(i). Among other matters, the Guidance generally described the policy and procedural framework under which the Commission would consider a substituted compliance program with respect to Commission regulations applicable to entities located outside the U.S. Specifically, the Commission addressed a recognition program where compliance with a comparable regulatory requirement of a foreign jurisdiction would serve as a reasonable substitute for compliance with the attendant requirements of the CEA and the Commission’s regulations promulgated thereunder. In addition to the Guidance, on July 22, 2013, the Commission issued the Exemptive Order Regarding Compliance with Certain Swap Regulations (the 1 78 FR 45292 (July 26, 2013). The Commission originally published proposed and further proposed guidance on July 12, 2012 and January 7, 2013, respectively. See Cross-Border Application of Certain Swaps Provisions of the Commodity Exchange Act, 77 FR 41214 (July 12, 2012) and Further Proposed Guidance Regarding Compliance with Certain Swap Regulations, 78 FR 909 (Jan. 7, 2013). E:\FR\FM\27DEN1.SGM 27DEN1

Agencies

[Federal Register Volume 78, Number 249 (Friday, December 27, 2013)]
[Notices]
[Pages 78852-78864]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-30975]


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COMMODITY FUTURES TRADING COMMISSION


Comparability Determination for Hong Kong: Certain Entity-Level 
Requirements

AGENCY: Commodity Futures Trading Commission.

ACTION: Notice of Comparability Determination for Certain Requirements 
under the laws of Hong Kong.

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SUMMARY: The following is the analysis and determination of the 
Commodity Futures Trading Commission (``Commission'') regarding certain 
parts of a request by the Hong Kong Monetary Authority (``HKMA'') that 
the Commission determine that laws and regulations applicable in Hong 
Kong provide a sufficient basis for an affirmative finding of 
comparability with respect to the following regulatory obligations 
applicable to swap dealers (``SDs'') and major swap participants 
(``MSPs'') registered with the Commission: (i) Chief compliance 
officer; (ii) risk management; and (iii) swap data recordkeeping 
(collectively, the ``Internal Business Conduct Requirements'').

DATES: Effective Date: This determination will become effective 
immediately upon publication in the Federal Register.

FOR FURTHER INFORMATION CONTACT: Gary Barnett, Director, 202-418-5977, 
gbarnett@cftc.gov, Frank Fisanich, Chief Counsel, 202-418-5949, 
ffisanich@cftc.gov, and August A. Imholtz III, Special Counsel, 202-
418-5140, aimholtz@cftc.gov, Division of Swap Dealer and Intermediary 
Oversight, Commodity Futures Trading Commission, Three Lafayette 
Centre, 1155 21st Street, NW., Washington, DC 20581.

SUPPLEMENTARY INFORMATION: 

I. Introduction

    On July 26, 2013, the Commission published in the Federal Register 
its ``Interpretive Guidance and Policy Statement Regarding Compliance 
with Certain Swap Regulations'' (the ``Guidance'').\1\ In the Guidance, 
the Commission set forth its interpretation of the manner in which it 
believes that section 2(i) of the Commodity Exchange Act (``CEA'') 
applies Title VII's swap provisions to activities outside the U.S. and 
informed the public of some of the policies that it expects to follow, 
generally speaking, in applying Title VII and certain Commission 
regulations in contexts covered by section 2(i). Among other matters, 
the Guidance generally described the policy and procedural framework 
under which the Commission would consider a substituted compliance 
program with respect to Commission regulations applicable to entities 
located outside the U.S. Specifically, the Commission addressed a 
recognition program where compliance with a comparable regulatory 
requirement of a foreign jurisdiction would serve as a reasonable 
substitute for compliance with the attendant requirements of the CEA 
and the Commission's regulations promulgated thereunder.
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    \1\ 78 FR 45292 (July 26, 2013). The Commission originally 
published proposed and further proposed guidance on July 12, 2012 
and January 7, 2013, respectively. See Cross-Border Application of 
Certain Swaps Provisions of the Commodity Exchange Act, 77 FR 41214 
(July 12, 2012) and Further Proposed Guidance Regarding Compliance 
with Certain Swap Regulations, 78 FR 909 (Jan. 7, 2013).
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    In addition to the Guidance, on July 22, 2013, the Commission 
issued the Exemptive Order Regarding Compliance with Certain Swap 
Regulations (the ``Exemptive Order'').\2\ Among other things, the 
Exemptive Order provided time for the Commission to consider 
substituted compliance with respect to six jurisdictions where non-U.S. 
SDs are currently organized. In this regard, the Exemptive Order 
generally provided non-U.S. SDs and MSPs in the six jurisdictions with 
conditional relief from certain requirements of Commission regulations 
(those referred to as ``Entity-Level Requirements'' in the Guidance) 
until the earlier of December 21, 2013, or 30 days following the 
issuance of a substituted compliance determination.\3\
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    \2\ 78 FR 43785 (July 22, 2013).
    \3\ The Entity-Level Requirements under the Exemptive Order 
consist of 17 CFR 1.31, 3.3, 23.201, 23.203, 23.600, 23.601, 23.602, 
23.603, 23.605, 23.606, 23.608, 23.609, and parts 45 and 46 of the 
Commission's regulations.
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    On July 12, 2013, the HKMA (the ``applicant'') submitted a request 
that the Commission determine that laws and regulations applicable in 
Hong Kong provide a sufficient basis for an affirmative finding of 
comparability with respect to certain Entity-Level Requirements, 
including the Internal Business Conduct Requirements.\4\ The applicant 
provided Commission staff with updated submissions on August 8 and 19, 
2013. On November 11, November 28, and December 6, 2013, the applicant 
further supplemented the application with corrections and additional 
materials. The following is

[[Page 78853]]

the Commission's analysis and determination regarding the Internal 
Business Conduct Requirements, as detailed below.\5\
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    \4\ For purposes of this notice, the Internal Business Conduct 
Requirements consist of 17 CFR 3.3, 23.201, 23.203, 23.600, 23.601, 
23.602, 23.603, 23.605, and 23.606.
    \5\ This notice does not address swap data repository reporting 
(``SDR Reporting''). The Commission may provide a comparability 
determination with respect to the SDR Reporting requirement in a 
separate notice.
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II. Background

    On July 21, 2010, President Obama signed the Dodd-Frank Wall Street 
Reform and Consumer Protection Act\6\ (``Dodd-Frank Act'' or ``Dodd-
Frank''), which, in Title VII, established a new regulatory framework 
for swaps.
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    \6\ Public Law 111-203, 124 Stat. 1376 (2010).
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    Section 722(d) of the Dodd-Frank Act amended the CEA by adding 
section 2(i), which provides that the swap provisions of the CEA 
(including any CEA rules or regulations) apply to cross-border 
activities when certain conditions are met, namely, when such 
activities have a ``direct and significant connection with activities 
in, or effect on, commerce of the United States'' or when they 
contravene Commission rules or regulations as are necessary or 
appropriate to prevent evasion of the swap provisions of the CEA 
enacted under Title VII of the Dodd-Frank Act.\7\ In the three years 
since its enactment, the Commission has finalized 68 rules and orders 
to implement Title VII of the Dodd-Frank Act. The finalized rules 
include those promulgated under section 4s of the CEA, which address 
registration of SDs and MSPs and other substantive requirements 
applicable to SDs and MSPs. With few exceptions, the delayed compliance 
dates for the Commission's regulations implementing such section 4s 
requirements applicable to SDs and MSPs have passed and new SDs and 
MSPs are now required to be in full compliance with such regulations 
upon registration with the Commission.\8\ Notably, the requirements 
under Title VII of the Dodd-Frank Act related to SDs and MSPs by their 
terms apply to all registered SDs and MSPs, irrespective of where they 
are located, albeit subject to the limitations of CEA section 2(i).
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    \7\ 7 U.S.C. 2(i).
    \8\ The compliance dates are summarized on the Compliance Dates 
page of the Commission's Web site. (http://www.cftc.gov/LawRegulation/DoddFrankAct/ComplianceDates/index.htm.)
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    To provide guidance as to the Commission's views regarding the 
scope of the cross-border application of Title VII of the Dodd-Frank 
Act, the Commission set forth in the Guidance its interpretation of the 
manner in which it believes that Title VII's swap provisions apply to 
activities outside the U.S. pursuant to section 2(i) of the CEA. Among 
other matters, the Guidance generally described the policy and 
procedural framework under which the Commission would consider a 
substituted compliance program with respect to Commission regulations 
applicable to entities located outside the U.S. Specifically, the 
Commission addressed a recognition program where compliance with a 
comparable regulatory requirement of a foreign jurisdiction would serve 
as a reasonable substitute for compliance with the attendant 
requirements of the CEA and the Commission's regulations. With respect 
to the standards forming the basis for any determination of 
comparability (``comparability determination'' or ``comparability 
finding''), the Commission stated:

    In evaluating whether a particular category of foreign 
regulatory requirement(s) is comparable and comprehensive to the 
applicable requirement(s) under the CEA and Commission regulations, 
the Commission will take into consideration all relevant factors, 
including but not limited to, the comprehensiveness of those 
requirement(s), the scope and objectives of the relevant regulatory 
requirement(s), the comprehensiveness of the foreign regulator's 
supervisory compliance program, as well as the home jurisdiction's 
authority to support and enforce its oversight of the registrant. In 
this context, comparable does not necessarily mean identical. 
Rather, the Commission would evaluate whether the home 
jurisdiction's regulatory requirement is comparable to and as 
comprehensive as the corresponding U.S. regulatory 
requirement(s).\9\
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    \9\ 78 FR 45342-45.

    Upon a comparability finding, consistent with CEA section 2(i) and 
comity principles, the Commission's policy generally is that eligible 
entities may comply with a substituted compliance regime, subject to 
any conditions the Commission places on its finding, and subject to the 
Commission's retention of its examination authority and its enforcement 
authority.\10\
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    \10\ See the Guidance, 78 FR 45342-44.
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    In this regard, the Commission notes that a comparability 
determination cannot be premised on whether an SD or MSP must disclose 
comprehensive information to its regulator in its home jurisdiction, 
but rather on whether information relevant to the Commission's 
oversight of an SD or MSP would be directly available to the Commission 
and any U.S. prudential regulator of the SD or MSP.\11\ The 
Commission's direct access to the books and records required to be 
maintained by an SD or MSP registered with the Commission is a core 
requirement of the CEA \12\ and the Commission's regulations,\13\ and 
is a condition to registration.\14\
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    \11\ Under Sec. Sec.  23.203 and 23.606, all records required by 
the CEA and the Commission's regulations to be maintained by a 
registered SD or MSP shall be maintained in accordance with 
Commission regulation 1.31 and shall be open for inspection by 
representatives of the Commission, the United States Department of 
Justice, or any applicable U.S. prudential regulator.
    In its Final Exemptive Order Regarding Compliance with Certain 
Swap Regulations, 78 FR 858 (Jan. 7, 2013), the Commission noted 
that an applicant for registration as a SD or MSP must file a Form 
7-R with the National Futures Association and that Form 7-R was 
being modified at that time to address existing blocking, privacy, 
or secrecy laws of foreign jurisdictions that applied to the books 
and records of SDs and MSPs acting in those jurisdictions. See id. 
at 871-72 n. 107. The modifications to Form 7-R were a temporary 
measure intended to allow SDs and MSPs to apply for registration in 
a timely manner in recognition of the existence of the blocking, 
privacy, and secrecy laws. In the Guidance, the Commission clarified 
that the change to Form 7-R impacts the registration application 
only and does not modify the Commission's authority under the CEA 
and its regulations to access records held by registered SDs and 
MSPs. Commission access to a registrant's books and records is a 
fundamental regulatory tool necessary to properly monitor and 
examine each registrant's compliance with the CEA and the 
regulations adopted pursuant thereto. The Commission has maintained 
an ongoing dialogue on a bilateral and multilateral basis with 
foreign regulators and with registrants to address books and records 
access issues and may consider appropriate measures where requested 
to do so.
    \12\ See e.g., sections 4s(f)(1)(C), 4s(j)(3) and (4) of the 
CEA.
    \13\ See e.g., Sec. Sec.  23.203(b) and 23.606.
    \14\ See supra note 9.
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III. Regulation of SDs and MSPs in Hong Kong

    The HKMA administers the Hong Kong Banking Ordinance and is the 
government authority in Hong Kong responsible for maintaining monetary 
and banking stability.\15\ Its main functions are:
---------------------------------------------------------------------------

    \15\ Because the applicant's request and the Commission's 
determinations herein are based on the comparability of the 
requirements applicable to Authorized Institutions (``AI'') 
regulated by the HKMA, an SD or MSP that is not an AI, or is 
otherwise not subject to the requirements applicable to AIs upon 
which the Commission bases its determinations, may not be able to 
rely on the Commission's comparability determinations herein.
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     Maintaining currency stability within the framework of the 
Linked Exchange Rate system;
     Promoting the stability and integrity of the financial 
system, including the banking system;
     Helping to maintain Hong Kong's status as an international 
financial center, including the maintenance and development of Hong 
Kong's financial infrastructure; and
     Managing the Exchange Fund.

[[Page 78854]]

IV. Comparable and Comprehensiveness Standard

    The Commission's comparability analysis will be based on a 
comparison of specific foreign requirements against the specific 
related CEA provisions and Commission regulations as categorized and 
described in the Guidance. As explained in the Guidance, within the 
framework of CEA section 2(i) and principles of international comity, 
the Commission may make a comparability determination on a requirement-
by-requirement basis, rather than on the basis of the foreign regime as 
a whole.\16\ In making its comparability determinations, the Commission 
may include conditions that take into account timing and other issues 
related to coordinating the implementation of reform efforts across 
jurisdictions.\17\
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    \16\ 78 FR 45343.
    \17\ 78 FR 45343.
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    In evaluating whether a particular category of foreign regulatory 
requirement(s) is comparable and comprehensive to the corollary 
requirement(s) under the CEA and Commission regulations, the Commission 
will take into consideration all relevant factors, including, but not 
limited to:
     The comprehensiveness of those requirement(s),
     The scope and objectives of the relevant regulatory 
requirement(s),
     The comprehensiveness of the foreign regulator's 
supervisory compliance program, and
     The home jurisdiction's authority to support and enforce 
its oversight of the registrant.\18\
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    \18\ 78 FR 45343.
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    In making a comparability determination, the Commission takes an 
``outcome-based'' approach. An ``outcome-based'' approach means that 
when evaluating whether a foreign jurisdiction's regulatory 
requirements are comparable to, and as comprehensive as, the corollary 
areas of the CEA and Commission regulations, the Commission ultimately 
focuses on regulatory outcomes (i.e., the home jurisdiction's 
requirements do not have to be identical).\19\ This approach recognizes 
that foreign regulatory systems differ and their approaches vary and 
may differ from how the Commission chose to address an issue, but that 
the foreign jurisdiction's regulatory requirements nonetheless achieve 
the regulatory outcome sought to be achieved by a certain provision of 
the CEA or Commission regulation.
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    \19\ 78 FR 45343. The Commission's substituted compliance 
program would generally be available for SDR Reporting, as outlined 
in the Guidance, only if the Commission has direct access to all of 
the data elements that are reported to a foreign trade repository 
pursuant to the substituted compliance program. Thus, direct access 
to swap data is a threshold matter to be addressed in a 
comparability evaluation for SDR Reporting. Moreover, the Commission 
explains in the Guidance that, due to its technical nature, a 
comparability evaluation for SDR Reporting ``will generally entail a 
detailed comparison and technical analysis.'' A more particularized 
analysis will generally be necessary to determine whether data 
stored in a foreign trade repository provides for effective 
Commission use, in furtherance of the regulatory purposes of the 
Dodd-Frank Act. See 78 FR 45345.
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    In doing its comparability analysis the Commission may determine 
that no comparability determination can be made \20\ and that the non-
U.S. SD or non-U.S. MSP, U.S. bank that is an SD or MSP with respect to 
its foreign branches, or non-registrant, to the extent applicable under 
the Guidance, may be required to comply with the CEA and Commission 
regulations.
---------------------------------------------------------------------------

    \20\ A finding of comparability may not be possible for a number 
of reasons, including the fact that the foreign jurisdiction has not 
yet implemented or finalized particular requirements.
---------------------------------------------------------------------------

    The starting point in the Commission's analysis is a consideration 
of the regulatory objectives of the foreign jurisdiction's regulation 
of swaps and swap market participants. As stated in the Guidance, 
jurisdictions may not have swap specific regulations in some areas, and 
instead have regulatory or supervisory regimes that achieve comparable 
and comprehensive regulation to the Dodd-Frank Act requirements, but on 
a more general, entity-wide, or prudential, basis.\21\ In addition, 
portions of a foreign regulatory regime may have similar regulatory 
objectives, but the means by which these objectives are achieved with 
respect to swaps market activities may not be clearly defined, or may 
not expressly include specific regulatory elements that the Commission 
concludes are critical to achieving the regulatory objectives or 
outcomes required under the CEA and the Commission's regulations. In 
these circumstances, the Commission will work with the regulators and 
registrants in these jurisdictions to consider alternative approaches 
that may result in a determination that substituted compliance 
applies.\22\
---------------------------------------------------------------------------

    \21\ 78 FR 45343.
    \22\ As explained in the Guidance, such ``approaches used will 
vary depending on the circumstances relevant to each jurisdiction. 
One example would include coordinating with the foreign regulators 
in developing appropriate regulatory changes or new regulations, 
particularly where changes or new regulations already are being 
considered or proposed by the foreign regulators or legislative 
bodies. As another example, the Commission may, after consultation 
with the appropriate regulators and market participants, include in 
its substituted compliance determination a description of the means 
by which certain swaps market participants can achieve substituted 
compliance within the construct of the foreign regulatory regime. 
The identification of the means by which substituted compliance is 
achieved would be designed to address the regulatory objectives and 
outcomes of the relevant Dodd-Frank Act requirements in a manner 
that does not conflict with a foreign regulatory regime and reduces 
the likelihood of inconsistent regulatory obligations. For example, 
the Commission may specify that [SDs] and MSPs in the jurisdiction 
undertake certain recordkeeping and documentation for swap 
activities that otherwise is only addressed by the foreign 
regulatory regime with respect to financial activities generally. In 
addition, the substituted compliance determination may include 
provisions for summary compliance and risk reporting to the 
Commission to allow the Commission to monitor whether the regulatory 
outcomes are being achieved. By using these approaches, in the 
interest of comity, the Commission would seek to achieve its 
regulatory objectives with respect to the Commission's registrants 
that are operating in foreign jurisdictions in a manner that works 
in harmony with the regulatory interests of those jurisdictions.'' 
78 FR 45343-44.
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    Finally, the Commission will generally rely on an applicant's 
description of the laws and regulations of the foreign jurisdiction in 
making its comparability determination. The Commission considers an 
application to be a representation by the applicant that the laws and 
regulations submitted are in full force and effect, that the 
description of such laws and regulations is accurate and complete, and 
that, unless otherwise noted, the scope of such laws and regulations 
encompasses the swaps activities \23\ of SDs and MSPs \24\ in the 
relevant jurisdictions.\25\ Further, as stated in the Guidance, the 
Commission expects that an applicant

[[Page 78855]]

would notify the Commission of any material changes to information 
submitted in support of a comparability determination (including, but 
not limited to, changes in the relevant supervisory or regulatory 
regime) as, depending on the nature of the change, the Commission's 
comparability determination may no longer be valid.\26\
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    \23\ ``Swaps activities'' is defined in Commission regulation 
23.600(a)(7) to mean, ``with respect to a registrant, such 
registrant's activities related to swaps and any product used to 
hedge such swaps, including, but not limited to, futures, options, 
other swaps or security-based swaps, debt or equity securities, 
foreign currency, physical commodities, and other derivatives.'' The 
Commission's regulations under Part 23 (17 CFR Part 23) are limited 
in scope to the swaps activities of SDs and MSPs.
    \24\ No SD or MSP that is not legally required to comply with a 
law or regulation determined to be comparable may voluntarily comply 
with such law or regulation in lieu of compliance with the CEA and 
the relevant Commission regulation. Each SD or MSP that seeks to 
rely on a comparability determination is responsible for determining 
whether it is subject to the laws and regulations found comparable. 
Currently, there are no MSPs organized outside the U.S. and the 
Commission therefore cautions any non-financial entity organized 
outside the U.S. and applying for registration as an MSP to 
carefully consider whether the laws and regulations determined to be 
comparable herein are applicable to such entity.
    \25\ The Commission has provided the relevant foreign 
regulator(s) with opportunities to review and correct the 
applicant's description of such laws and regulations on which the 
Commission will base its comparability determination. The Commission 
relies on the accuracy and completeness of such review and any 
corrections received in making its comparability determinations. A 
comparability determination based on an inaccurate description of 
foreign laws and regulations may not be valid.
    \26\ 78 FR 45345.
---------------------------------------------------------------------------

    The Guidance provided a detailed discussion of the Commission's 
policy regarding the availability of substituted compliance \27\ for 
the Internal Business Conduct Requirements.\28\
---------------------------------------------------------------------------

    \27\ See 78 FR 45348-50. The Commission notes that registrants 
and other market participants are responsible for determining 
whether substituted compliance is available pursuant to the Guidance 
based on the comparability determination contained herein (including 
any conditions or exceptions), and its particular status and 
circumstances.
    \28\ This notice does not address Sec.  23.608 (Restrictions on 
counterparty clearing relationships) nor Sec.  23.609 (Clearing 
member risk management). The Commission declines to take up the 
request for a comparability determination with respect to these 
regulations due to the Commission's view that there are not laws or 
regulations applicable in Hong Kong to compare with the prohibitions 
and requirements of Sec. Sec.  23.608 or 23.609. The Commission may 
provide a comparability determination with respect to these 
regulations at a later date in consequence of further developments 
in the law and regulations applicable in Hong Kong.
    This notice also does not address capital adequacy because the 
Commission has not yet finalized rules for SDs and MSPs in this 
area, nor SDR Reporting. The Commission may provide a comparability 
determination with respect to these requirements at a later date or 
in a separate notice.
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V. Supervisory Arrangement

    In the Guidance, the Commission stated that, in connection with a 
determination that substituted compliance is appropriate, it would 
expect to enter into an appropriate memorandum of understanding 
(``MOU'') or similar arrangement \29\ with the relevant foreign 
regulator(s). Although existing arrangements would indicate a foreign 
regulator's ability to cooperate and share information, ``going 
forward, the Commission and relevant foreign supervisor(s) would need 
to establish supervisory MOUs or other arrangements that provide for 
information sharing and cooperation in the context of supervising [SDs] 
and MSPs.'' \30\
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    \29\ An MOU is one type of arrangement between or among 
regulators. Supervisory arrangements could include, as appropriate, 
cooperative arrangements that are memorialized and executed as 
addenda to existing MOUs or, for example, as independent bilateral 
arrangements, statements of intent, declarations, or letters.
    \30\ 78 FR 45344.
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    The Commission is in the process of developing its registration and 
supervision regime for provisionally-registered SDs and MSPs. This new 
initiative includes setting forth supervisory arrangements with 
authorities that have joint jurisdiction over SDs and MSPs that are 
registered with the Commission and subject to U.S. law. Given the 
developing nature of the Commission's regime and the fact that the 
Commission has not negotiated prior supervisory arrangements with 
certain authorities, the negotiation of supervisory arrangements 
presents a unique opportunity to develop close working relationships 
between and among authorities, as well as highlight any potential 
issues related to cooperation and information sharing.
    Accordingly, the Commission is negotiating such a supervisory 
arrangement with each applicable foreign regulator of an SD or MSP. The 
Commission expects that the arrangement will establish expectations for 
ongoing cooperation, address direct access to information,\31\ provide 
for notification upon the occurrence of specified events, memorialize 
understandings related to on-site visits,\32\ and include protections 
related to the use and confidentiality of non-public information shared 
pursuant to the arrangement.
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    \31\ Section 4s(j)(3) and (4) of the CEA and Commission 
regulation 23.606 require a registered SD or MSP to make all records 
required to be maintained in accordance with Commission regulation 
1.31 available promptly upon request to, among others, 
representatives of the Commission. See also 7 U.S.C. 6s(f); 17 CFR 
23.203. In the Guidance, the Commission states that it ``reserves 
this right to access records held by registered [SDs] and MSPs, 
including those that are non-U.S. persons who may comply with the 
Dodd-Frank recordkeeping requirement through substituted 
compliance.'' 78 FR 45345 n. 472; see also id. at 45342 n. 461 
(affirming the Commission's authority under the CEA and its 
regulations to access books and records held by registered SDs and 
MSPs as ``a fundamental regulatory tool necessary to properly 
monitor and examine each registrant's compliance with the CEA and 
the regulations adopted pursuant thereto'').
    \32\ The Commission retains its examination authority, both 
during the application process as well as upon and after 
registration of an SD or MSP. See 78 FR 45342 (stating Commission 
policy that ``eligible entities may comply with a substituted 
compliance regime under certain circumstances, subject, however, to 
the Commission's retention of its examination authority'') and 45344 
n. 471 (stating that the ``Commission may, as it deems appropriate 
and necessary, conduct an on-site examination of the applicant'').
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    These arrangements will establish a roadmap for how authorities 
will consult, cooperate, and share information. As with any such 
arrangement, however, nothing in these arrangements will supersede 
domestic laws or resolve potential conflicts of law, such as the 
application of domestic secrecy or blocking laws to regulated entities.

VI. Comparability Determination and Analysis

    The following section describes the requirements imposed by 
specific sections of the CEA and the Commission's regulations for the 
Internal Business Conduct Requirements that are the subject of this 
comparability determination, and the Commission's regulatory objectives 
with respect to such requirements. Immediately following a description 
of the requirement(s) and regulatory objective(s) of the specific 
Internal Business Conduct Requirements that the requestor submitted for 
a comparability determination, the Commission provides a description of 
the foreign jurisdiction's comparable laws, regulations, or rules and 
whether such laws, regulations, or rules meet the applicable regulatory 
objective.
    The Commission's determinations in this regard and the discussion 
in this section are intended to inform the public of the Commission's 
views regarding whether the foreign jurisdiction's laws, regulations, 
or rules may be comparable and comprehensive as those requirements in 
the Dodd-Frank Act (and Commission regulations promulgated thereunder) 
and therefore, may form the basis of substituted compliance. In turn, 
the public (in the foreign jurisdiction, in the United States, and 
elsewhere) retains its ability to present facts and circumstances that 
would inform the determinations set forth in this notice.
    As was stated in the Guidance, the Commission recognizes the 
complex and dynamic nature of the global swap market and the need to 
take an adaptable approach to cross-border issues, particularly as it 
continues to work closely with foreign regulators to address potential 
conflicts with respect to each country's respective regulatory regime. 
In this regard, the Commission may review, modify, or expand the 
determinations herein in light of comments received and future 
developments.

A. Chief Compliance Officer (Sec.  3.3)

    Commission Requirement: Implementing section 4s(k) of the CEA, 
Commission regulation 3.3 generally sets forth the following 
requirements for SDs and MSPs:
     An SD or MSP must designate an individual as Chief 
Compliance Officer (``CCO'');
     The CCO must have the responsibility and authority to 
develop the regulatory compliance policies and procedures of the SD or 
MSP;

[[Page 78856]]

     The CCO must report to the board of directors or the 
senior officer of the SD or MSP;
     Only the board of directors or a senior officer may remove 
the CCO;
     The CCO and the board of directors must meet at least once 
per year;
     The CCO must have the background and skills appropriate 
for the responsibilities of the position;
     The CCO must not be subject to disqualification from 
registration under sections 8a(2) or (3) of the CEA;
     Each SD and MSP must include a designation of a CCO in its 
registration application;
     The CCO must administer the regulatory compliance policies 
of the SD or MSP;
     The CCO must take reasonable steps to ensure compliance 
with the CEA and Commission regulations, and resolve conflicts of 
interest;
     The CCO must establish procedures for detecting and 
remediating non-compliance issues;
     The CCO must annually prepare and sign an ``annual 
compliance report'' containing: (i) A description of policies and 
procedures reasonably designed to ensure compliance; (ii) an assessment 
of the effectiveness of such policies and procedures; (iii) a 
description of material non-compliance issues and the action taken; 
(iv) recommendations of improvements in compliance policies; and (v) a 
certification by the CCO or CEO that, to the best of such officer's 
knowledge and belief, the annual report is accurate and complete under 
penalty of law; and
     The annual compliance report must be furnished to the CFTC 
within 90 days after the end of the fiscal year of the SD or MSP, 
simultaneously with its annual financial condition report.
    Regulatory Objective: The Commission believes that compliance by 
SDs and MSPs with the CEA and the Commission's rules greatly 
contributes to the protection of customers, orderly and fair markets, 
and the stability and integrity of the market intermediaries registered 
with the Commission. The Commission expects SDs and MSPs to strictly 
comply with the CEA and the Commission's rules and to devote sufficient 
resources to ensuring such compliance. Thus, through its CCO rule, the 
Commission seeks to ensure firms have designated a qualified individual 
as CCO that reports directly to the board of directors or the senior 
officer of the firm and that has the independence, responsibility, and 
authority to develop and administer compliance policies and procedures 
reasonably designed to ensure compliance with the CEA and Commission 
regulations, resolve conflicts of interest, remediate noncompliance 
issues, and report annually to the Commission and the board or senior 
officer on compliance of the firm.
    Comparable Hong Kong Law and Regulations: The applicant has 
represented to the Commission that the following provisions of law and 
regulations applicable in Hong Kong are in full force and effect in 
Hong Kong, and comparable to and as comprehensive as section 4s(k) of 
the CEA and Commission regulation 3.3.
     Hong Kong Banking Ordinance, Section 72B requires all AIs 
(i.e., banks, restricted license banks and deposit-taking companies), 
including a bank that is registered as an SD, to appoint a manager 
principally responsible for the compliance function.
     The HKMA Supervisory Policy Manual, Module IC-1 provides 
that the primary role of the compliance function is to ensure that the 
AI is in compliance with the statutory provisions, regulatory 
requirements, and codes of conduct applicable to its banking or other 
regulated activities. To this end, the compliance function must ensure 
that the compliance policies and procedures developed by it or other 
departments are adequate and effective.
     The HKMA Supervisory Policy Manual, Module IC-1 provides 
that the compliance function should have appropriate standing and 
authority within an AI, with a direct reporting line to a designated 
committee (e.g., Audit Committee) or senior management. AIs are 
required to have a compliance function that is responsible for ensuring 
the firm's compliance with statutory and regulatory requirements. The 
compliance function must have sufficient authority and independence to 
function effectively. It should also be able to carry out its duties on 
its own initiative in all business and operating units of the AI in 
which compliance risk exists, with unfettered access to any records or 
files necessary to enable it to conduct its work.
     Under the HKMA Supervisory Policy Manual, Module CG-1, the 
board of directors is responsible for the appointment and removal of 
senior management, including the compliance manager. The board must 
meet regularly with senior management and internal control functions 
(including those responsible for internal audit, risk management and 
compliance) to review the policies and controls in order to identify 
areas that need improvement and address significant risks and issues.
     The HKMA Supervisory Policy Manual, Module CG-1 provides 
that senior managers, such as the compliance manager, are required to 
have appropriate background and skills to enable them to manage and 
supervise the AI's internal control and risk management functions, 
including compliance. Further, the manual also provides guidance for 
assessing whether senior management, including the CCO, is ``fit and 
proper.'' One of the considerations is whether the person has a record 
of non-compliance with various non-statutory codes or has been 
reprimanded, censured, disciplined or publicly criticized by 
professional or regulatory bodies.
     The HKMA Supervisory Policy Manual, Module IC-1 provides 
that the compliance function must monitor and test compliance. The 
compliance function also must establish a compliance program that sets 
out its planned activities.
     The HKMA Supervisory Policy Manual, Module IC-1 provides 
that the compliance function must report regularly to senior management 
on compliance matters. Additionally, the chief executive of an AI must 
endorse the Certificate of Compliance submitted to the HKMA quarterly 
to confirm compliance with the specified statutory requirements under 
the Hong Kong Banking Ordinance.
    Commission Determination: The Commission finds that the provisions 
of the Hong Kong Banking Ordinance and the HKMA Supervisory Policy 
Manual specified above are generally identical in intent to Sec.  3.3 
by seeking to ensure firms have designated a qualified individual as 
the compliance officer that reports directly to a sufficiently senior 
function of the firm and that has the independence, responsibility, and 
authority to develop and administer compliance policies and procedures 
reasonably designed to ensure compliance with the CEA and Commission 
regulations, remediate noncompliance issues, and report regularly on 
compliance of the firm.
    Based on the foregoing and the representations of the applicant, 
the Commission hereby determines that the provisions of the Hong Kong 
Banking Ordinance and the HKMA Supervisory Policy Manual that govern 
the compliance manager and compliance function within an AI are 
comparable to and as comprehensive as Sec.  3.3, with the exception of 
Sec.  3.3(f) concerning certifying and furnishing an annual compliance 
report to the Commission.
    Notwithstanding that the Commission has not determined that the 
requirements of the Hong Kong Banking Ordinance and the HKMA 
Supervisory Policy Manual are comparable to and as comprehensive as 
Sec.  3.3(f), any SD or

[[Page 78857]]

MSP to which both Sec.  3.3 and the provisions of the Hong Kong Banking 
Ordinance and the HKMA Supervisory Policy Manual specified above are 
applicable would generally be deemed to be in compliance with Sec.  
3.3(f) if that SD or MSP complies with the provisions of the Hong Kong 
Banking Ordinance and the HKMA Supervisory Policy Manual specified 
above, subject to certifying and furnishing the Commission with the 
compliance reports required under the provisions of the Hong Kong 
Banking Ordinance and the HKMA Supervisory Policy Manual specified 
above in accordance with Sec.  3.3(f). The Commission notes that it 
generally expects registrants to submit required reports to the 
Commission in the English language.

B. Risk Management Duties (Sec. Sec.  23.600--23.609)

    Section 4s(j) of the CEA requires each SD and MSP to establish 
internal policies and procedures designed to, among other things, 
address risk management, monitor compliance with position limits, 
prevent conflicts of interest, and promote diligent supervision, as 
well as maintain business continuity and disaster recovery 
programs.\33\ The Commission adopted regulations 23.600, 23.601, 
23.602, 23.603, 23.605, and 23.606 to implement the statute.\34\ The 
Commission also adopted regulation 23.609, which requires certain risk 
management procedures for SDs or MSPs that are clearing members of a 
derivatives clearing organization (``DCO'').\35\ Collectively, these 
requirements help to establish a robust and comprehensive internal risk 
management program for SDs and MSPs with respect to their swaps 
activities,\36\ which is critical to effective systemic risk management 
for the overall swaps market. In making its comparability determination 
with regard to these risk management duties, the Commission will 
consider each regulation individually.\37\
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    \33\ 7 U.S.C. 6s(j).
    \34\ See Final Swap Dealer and MSP Recordkeeping Rule, 77 FR 
20128 (April 3, 2012) (relating to risk management program, 
monitoring of position limits, business continuity and disaster 
recovery, conflicts of interest policies and procedures, and general 
information availability, respectively).
    \35\ See Customer Documentation Rule, 77 FR 21278. Also, SDs 
must comply with Commission regulation 23.608, which prohibits SDs 
providing clearing services to customers from entering into 
agreements that would: (i) Disclose the identity of a customer's 
original executing counterparty; (ii) limit the number of 
counterparties a customer may trade with; (iii) impose counterparty-
based position limits; (iv) impair a customer's access to execution 
of a trade on terms that have a reasonable relationship to the best 
terms available; or (v) prevent compliance with specified time 
frames for acceptance of trades into clearing.
    \36\ ``Swaps activities'' is defined in Commission regulation 
23.600(a)(7) to mean, ``with respect to a registrant, such 
registrant's activities related to swaps and any product used to 
hedge such swaps, including, but not limited to, futures, options, 
other swaps or security-based swaps, debt or equity securities, 
foreign currency, physical commodities, and other derivatives.'' The 
Commission's regulations under 17 CFR Part 23 are limited in scope 
to the swaps activities of SDs and MSPs.
    \37\ As stated above, this notice does not address Sec.  23.608 
(Restrictions on counterparty clearing relationships) nor Sec.  
23.609 (Clearing member risk management). The Commission declines to 
take up the request for a comparability determination with respect 
to these regulations due to the Commission's view that there are not 
laws or regulations applicable in Hong Kong to compare with the 
prohibitions and requirements of Sec. Sec.  23.608 or 23.609. The 
Commission may provide a comparability determination with respect to 
these regulations at a later date in consequence of further 
developments in the law and regulations applicable in Hong Kong.
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1. Risk Management Program for SDs and MSPs (Sec.  23.600)
    Commission Requirement: Implementing section 4s(j)(2) of the CEA, 
Commission regulation 23.600 generally requires that:
     Each SD or MSP must establish and enforce a risk 
management program consisting of a system of written risk management 
policies and procedures designed to monitor and manage the risks 
associated with the swap activities of the firm, including without 
limitation, market, credit, liquidity, foreign currency, legal, 
operational, and settlement risks, and furnish a copy of such policies 
and procedures to the CFTC upon application for registration and upon 
request;
     The SD or MSP must establish a risk management unit 
independent from the business trading unit;
     The risk management policies and procedures of the SD or 
MSP must be approved by the firm's governing body;
     Risk tolerance limits and exceptions therefrom must be 
reviewed and approved quarterly by senior management and annually by 
the governing body;
     The risk management program must have a system for 
detecting breaches of risk tolerance limits and alerting supervisors 
and senior management, as appropriate;
     The risk management program must account for risks posed 
by affiliates and be integrated at the consolidated entity level;
     The risk management unit must provide senior management 
and the governing body with quarterly risk exposure reports and upon 
detection of any material change in the risk exposure of the SD or MSP;
     Risk exposure reports must be furnished to the CFTC within 
five business days following provision to senior management;
     The risk management program must have a new product policy 
for assessing the risks of new products prior to engaging in such 
transactions;
     The risk management program must have policies and 
procedures providing for trading limits, monitoring of trading, 
processing of trades, and separation of personnel in the trading unit 
from personnel in the risk management unit; and
     The risk management program must be reviewed and tested at 
least annually and upon any material change in the business of the SD 
or MSP.
    Regulatory Objective: Through the required system of risk 
management, the Commission seeks to ensure that firms are adequately 
managing the risks of their swaps activities to prevent failure of the 
SD or MSP, which could result in losses to counterparties doing 
business with the SD or MSP, and systemic risk more generally. To this 
end, the Commission believes the risk management program of an SD or 
MSP must contain at least the following critical elements:
     Identification of risk categories;
     Establishment of risk tolerance limits for each category 
of risk and approval of such limits by senior management and the 
governing body;
     An independent risk management unit to administer a risk 
management program; and
     Periodic oversight of risk exposures by senior management 
and the governing body.
    Comparable Hong Kong Law and Regulations: The applicant has 
represented to the Commission that the following provisions of law and 
regulations applicable in Hong Kong are in full force and effect in 
Hong Kong, and comparable to and as comprehensive as section 4s(j)(2) 
of the CEA and Commission regulation 23.600.
    HKMA represents to the Commission that it generally requires AIs to 
have adequate risk management policies, procedures, systems and 
controls to identify, assess, measure, monitor, and control eight types 
of inherent risks arising from their activities (on and off balance 
sheet, and including swap activities) under SA-1 Risk-based Supervisory 
Approach.
    HKMA also represents to the Commission that the risk management 
requirements in its guidelines apply to swap activities conducted by 
AIs.
    HKMA further represents to the Commission that it has dedicated 
guidelines on major types of risk (e.g., management of credit 
(including

[[Page 78858]]

counterparty credit), market, liquidity and operational risks, etc.). 
Specifically:
     The HKMA Supervisory Policy Manual, Module IC-1 provides 
that the board is responsible for articulating risk management 
strategies. Senior management must develop, and the board must approve, 
a risk management framework based on risk management strategies that is 
consistent with the AI's business goals and risk appetite. Senior 
management must: formulate detailed policies, procedures and limits for 
managing different aspects of risk arising from the AI's business 
activities; design and implement a risk management framework; and 
ensure that the relevant control systems within the framework function 
as intended. The risk management policies and procedures must be 
approved by the board or its designated committee(s). The board also 
must exercise oversight over the effectiveness of the risk management 
framework.
     The HKMA Supervisory Policy Manual, Module IC-1 provides 
that AIs should have a dedicated risk management function. The risk 
management function must be independent from the risk-taking and 
operational units which it reviews. The risk management function must 
have unfettered access to information from the risk-taking and 
operational units.
     The HKMA Supervisory Policy Manual, Module IC-1 provides 
that a set of limits should be put in place to control an AI's exposure 
to various quantifiable risks associated with its business activities 
and to control different sources of risk concentration. These limits 
should be documented and approved by the board or its designated 
committee(s). Limit utilization should be closely monitored, and 
excesses or exceptions should be reported promptly to senior management 
for necessary action.
     The HKMA Supervisory Policy Manual, Module IC-1 provides 
that risk management must be conducted on a group-wide basis by 
managing the relevant risks of the parent bank and its group entities 
as a whole.
     The HKMA Supervisory Policy Manual, Module IC-1 provides 
that a sound risk management system should include adequate risk 
measurement, monitoring and reporting systems to support all business 
activities and related risks. The risk management information system 
should be capable of reporting excesses in limits and policy 
exceptions, and alerting management of risk exposures approaching pre-
set limits. The risk management information system also should be able 
to produce information at appropriate intervals, including at more 
frequent intervals in times of stress as required by management.
     The HKMA collects internal risk exposure reports from the 
AIs. AIs are required to submit quarterly capital adequacy ratio 
returns to the HKMA that address market risk. HKMA also conducts 
regular surveys on AIs' derivative exposures.
     The HKMA Supervisory Policy Manual, Module IC-1 provides 
that AIs should have in place an internally approved and well-
documented ``new product approval policy'' which addresses not only the 
development and approval of entirely new products and services but also 
significant changes in the features of existing products and services.
    Commission Determination: The Commission finds that the provisions 
of the HKMA Supervisory Policy Manual specified above are generally 
identical in intent to Sec.  23.600 by requiring a system of risk 
management that seeks to ensure that firms are adequately managing the 
risks of their swaps activities to prevent failure of the SD or MSP, 
which could result in losses to counterparties doing business with the 
SD or MSP, and systemic risk more generally. Specifically, the 
Commission finds that the provisions of the HKMA Supervisory Policy 
Manual specified above comprehensively require SDs and MSPs to 
establish risk management programs containing the following critical 
elements:
     Identification of risk categories;
     Establishment of risk tolerance limits for each category 
of risk and approval of such limits by senior management and the 
governing body;
     An independent risk management unit to administer a risk 
management program; and
     Periodic oversight of risk exposures by senior management 
and the governing body.
    Based on the foregoing and the representations of the applicant, 
the Commission hereby determines that the risk management program 
requirements of the HKMA Supervisory Policy Manual, as specified above, 
are comparable to and as comprehensive as Sec.  23.600, with the 
exception of Sec.  23.600(c)(2) concerning the requirement that each SD 
and MSP produce a quarterly risk exposure report and provide such 
report to its senior management, governing body, and the Commission.
    Notwithstanding that the Commission has not determined that the 
requirements of the provisions of the HKMA Supervisory Policy Manual 
are comparable to and as comprehensive as Sec.  23.600(c)(2), any SD or 
MSP to which both Sec.  23.600 and the provisions of the HKMA 
Supervisory Policy Manual specified above are applicable would 
generally be deemed to be in compliance with Sec.  23.600(c)(2) if that 
SD or MSP complies with the provisions of the HKMA Supervisory Policy 
Manual specified above, subject to compliance with the requirement that 
it produce quarterly risk exposure reports and provide such reports to 
its senior management, governing body, and the Commission in accordance 
with Sec.  23.600(c)(2). The Commission notes that it generally expects 
reports furnished to the Commission by registrants to be in the English 
language.
2. Monitoring of Position Limits (Sec.  23.601)
    Commission Requirement: Implementing section 4s(j)(1) of the CEA, 
Commission regulation 23.601 requires each SD or MSP to establish and 
enforce written policies and procedures that are reasonably designed to 
monitor for, and prevent violations of, applicable position limits 
established by the Commission, a designated contract market (``DCM''), 
or a swap execution facility (``SEF'').\38\ The policies and procedures 
must include an early warning system and provide for escalation of 
violations to senior management (including the firm's governing body).
---------------------------------------------------------------------------

    \38\ The setting of position limits by the Commission, a DCM, or 
a SEF is subject to requirements under the CEA and Commission 
regulations other than Sec.  23.601. The setting of position limits 
and compliance with such limits is not subject to the Commission's 
substituted compliance regime.
---------------------------------------------------------------------------

    Regulatory Objective: Generally, position limits are implemented to 
ensure market integrity, fairness, orderliness, and accurate pricing in 
the commodity markets. Commission regulation 23.601 thus seeks to 
ensure that SDs and MSPs have established the necessary policies and 
procedures to monitor the trading of the firm to prevent violations of 
applicable position limits established by the Commission, a DCM, or a 
SEF. As part of its Risk Management Program, Sec.  23.601 is intended 
to ensure that established position limits are not breached by the SD 
or MSP.
    Comparable Hong Kong Law and Regulations: The applicant has 
represented to the Commission that the following provisions of law and 
regulations applicable in Hong Kong are in full force and effect in 
Hong Kong, and comparable to and as comprehensive as section 4s(j)(1) 
of the

[[Page 78859]]

CEA and Commission regulation Sec.  23.601.
    The applicant represents to the Commission that AIs have a 
responsibility to comply with all applicable laws and regulations, 
whether in Hong Kong or outside of Hong Kong, including applicable 
position limits established by the Commission, a DCM, or a SEF. Under 
the HKMA Supervisory Policy Manual, module IC-1, General Risk 
Management Controls paragraph 5.1.3, an AI's internal control system 
must cover controls relating to compliance with statutory and 
regulatory requirements, which would require a system of controls to 
maintain compliance with applicable position limits established by the 
Commission, a DCM, or a SEF. AI's must maintain adequate systems of 
control to maintain a banking license pursuant to the Banking 
Ordinance, Schedule 7, paragraph 10.\39\
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    \39\ In addition to the foregoing, the applicant also submitted 
various guidelines and required best practices concerning the 
setting of internal risk tolerance limits and monitoring for 
compliance with such internal limits. Although the Commission 
recognizes these as prudent risk management practices, the 
Commission does not believe that these provisions are relevant for a 
comparability determination with respect to Sec.  23.601 because 
Sec.  23.601 requires monitoring for compliance with external 
position limits set by the Commission, a DCM, or a SEF.
---------------------------------------------------------------------------

    Commission Determination: The Commission finds that the HKMA and 
Banking Ordinance standards specified above are generally identical in 
intent to Sec.  23.601 by requiring SDs and MSPs to establish necessary 
policies and procedures to monitor the trading of the firm to prevent 
violations of applicable position limits established by applicable laws 
and regulations, including those of the Commission, a DCM, or a SEF. 
Specifically, the Commission finds that the HKMA and Banking Ordinance 
standards specified above, while not specific to the issue of position 
limit compliance, nevertheless comprehensively require SDs and MSPs to 
monitor for regulatory compliance generally, including monitoring for 
compliance with position limits set pursuant to applicable law 
(including the CEA and Commission regulations) and escalation of 
violations to senior management (including the board of directors) 
responsible for such compliance.
    Based on the foregoing and the representations of the applicant, 
the Commission hereby determines that the compliance monitoring 
requirements of the HKMA and Banking Ordinance standards, as specified 
above, are comparable to and as comprehensive as Sec.  23.601. For the 
avoidance of doubt, the Commission notes that this determination may 
not be relied on to relieve an SD or MSP from its obligation to 
strictly comply with any applicable position limit established by the 
Commission, a DCM, or a SEF.
3. Diligent Supervision (Sec.  23.602)
    Commission Requirement: Commission regulation 23.602 implements 
section 4s(h)(1)(B) of the CEA and requires each SD and MSP to 
establish a system to diligently supervise all activities relating to 
its business performed by its partners, members, officers, employees, 
and agents. The system must be reasonably designed to achieve 
compliance with the CEA and CFTC regulations. Commission regulation 
23.602 requires that the supervisory system must specifically designate 
qualified persons with authority to carry out the supervisory 
responsibilities of the SD or MSP for all activities relating to its 
business as an SD or MSP.
    Regulatory Objective: The Commission's diligent supervision rule 
seeks to ensure that SDs and MSPs strictly comply with the CEA and the 
Commission's rules. To this end, through Sec.  23.602, the Commission 
seeks to ensure that each SD and MSP not only establishes the necessary 
policies and procedures that would lead to compliance with the CEA and 
Commission regulations, but also establishes an effective system of 
internal oversight and enforcement of such policies and procedures to 
ensure that such policies and procedures are diligently followed.
    Comparable Hong Kong Law and Regulations: The applicant has 
represented to the Commission that the following provisions of law and 
regulations applicable in Hong Kong are in full force and effect in 
Hong Kong, and comparable to and as comprehensive as section 
4s(h)(1)(B) of the CEA and Commission regulation 23.602.
     The HKMA Supervisory Policy Manual, Module CG-1 provides 
that the board is ultimately responsible for overseeing senior 
management to operate within the risk appetite and strategies 
prescribed by the board, on a prudent basis and in accordance with 
applicable laws, regulations and supervisory standards.
     The HKMA Supervisory Policy Manual, Module IC-1 provides 
that an AI's internal control system should, among others, cover 
controls relating to compliance with statutory and regulatory 
requirements.
     The Hong Kong Banking Ordinance provides that senior 
management are responsible for carrying out the supervisory 
responsibilities of the AIs, and they can be personally liable for 
breaches of the Banking Ordinance committed by AIs.
    Commission Determination: The Commission finds that the provisions 
of the Hong Kong Banking Ordinance and the HKMA Supervisory Policy 
Manual specified above are generally identical in intent to Sec.  
23.602 because such standards seek to ensure that SDs and MSPs strictly 
comply with applicable law, which would include the CEA and the 
Commission's regulations. Through the provisions of the Hong Kong 
Banking Ordinance and the HKMA Supervisory Policy Manual specified 
above, Hong Kong laws and regulations seek to ensure that each SD and 
MSP not only establishes the necessary policies and procedures that 
would lead to compliance with applicable law, which would include the 
CEA and Commission regulations, but also establishes an effective 
system of internal oversight and enforcement of such policies and 
procedures to ensure that such policies and procedures are diligently 
followed.
    Based on the foregoing and the representations of the applicant, 
the Commission hereby determines that the internal supervision 
requirements of the provisions of the Hong Kong Banking Ordinance and 
the HKMA Supervisory Policy Manual, as specified above, are comparable 
to and as comprehensive as Sec.  23.602.
4. Business Continuity and Disaster Recovery (Sec.  23.603)
    Commission Requirement: To ensure the proper functioning of the 
swaps markets and the prevention of systemic risk more generally, 
Commission regulation 23.603 requires each SD and MSP, as part of its 
risk management program, to establish a business continuity and 
disaster recovery plan that includes procedures for, and the 
maintenance of, back-up facilities, systems, infrastructure, personnel, 
and other resources to achieve the timely recovery of data and 
documentation and to resume operations generally within the next 
business day after the disruption.
    Regulatory Objective: Commission regulation 23.603 is intended to 
ensure that any market disruption affecting SDs and MSPs, whether 
caused by natural disaster or otherwise, is minimized in length and 
severity. To that end, this requirement seeks to ensure that entities 
adequately plan for disruptions and devote sufficient resources capable 
of carrying out an appropriate plan within one business day, if 
necessary.

[[Page 78860]]

    Comparable Hong Kong Law and Regulations: The applicant has 
represented to the Commission that the following provisions of law and 
regulations applicable in Hong Kong are in full force and effect in 
Hong Kong, and comparable to and as comprehensive as Commission 
regulation 23.603.
     HKMA Supervisory Policy Manual, Module TM-G-2 on Business 
Continuity Planning requires all AIs to have adequate and regularly 
tested business continuity plans.
    Commission Determination: The Commission finds that the provisions 
of the HKMA Supervisory Policy Manual specified above are generally 
identical in intent to Sec.  23.603 because such standards seek to 
ensure that any market disruption affecting SDs and MSPs, whether 
caused by natural disaster or otherwise, is minimized in length and 
severity. To that end, the Commission finds that the provisions of the 
HKMA Supervisory Policy Manual specified above seek to ensure that 
entities adequately plan for disruptions and devote sufficient 
resources capable of carrying out an appropriate plan in a timely 
manner.
    Based on the foregoing and the representations of the applicant, 
the Commission hereby determines that the business continuity and 
disaster recovery requirements of the provisions of the HKMA 
Supervisory Policy Manual, as specified above, are comparable to and as 
comprehensive as Sec.  23.603.
5. Conflicts of Interest (Sec.  23.605)
    Commission Requirement: Section 4s(j)(5) of the CEA and Commission 
regulation 23.605(c) generally require each SD or MSP to establish 
structural and institutional safeguards to ensure that the activities 
of any person within the firm relating to research or analysis of the 
price or market for any commodity or swap are separated by appropriate 
informational partitions within the firm from the review, pressure, or 
oversight of persons whose involvement in pricing, trading, or clearing 
activities might potentially bias their judgment or supervision.
    In addition, section 4s(j)(5) of the CEA and Commission regulation 
23.605(d)(1) generally prohibits an SD or MSP from directly or 
indirectly interfering with or attempting to influence the decision of 
any clearing unit of any affiliated clearing member of a DCO to provide 
clearing services and activities to a particular customer, including:
     Whether to offer clearing services to a particular 
customer;
     Whether to accept a particular customer for clearing 
derivatives;
     Whether to submit a customer's transaction to a particular 
DCO;
     Whether to set or adjust risk tolerance levels for a 
particular customer; or
     Whether to set a customer's fees based on criteria other 
than those generally available and applicable to other customers.
    Commission regulation 23.605(d)(2) generally requires each SD or 
MSP to create and maintain an appropriate informational partition 
between business trading units of the SD or MSP and clearing units of 
any affiliated clearing member of a DCO to reasonably ensure compliance 
with the Act and the prohibitions set forth in Sec.  23.605(d)(1) 
outlined above.
    The Commission observes that Sec.  23.605(d) works in tandem with 
Commission regulation 1.71, which requires FCMs that are clearing 
members of a DCO and affiliated with an SD or MSP to create and 
maintain an appropriate informational partition between business 
trading units of the SD or MSP and clearing units of the FCM to 
reasonably ensure compliance with the Act and the prohibitions set 
forth in Sec.  1.71(d)(1), which are the same as the prohibitions set 
forth in Sec.  23.605(d)(1) outlined above.
    Finally, Sec.  23.605(e) requires that each SD or MSP have policies 
and procedures that mandate the disclosure to counterparties of 
material incentives or conflicts of interest regarding the decision of 
a counterparty to execute a derivative on a swap execution facility or 
DCM or to clear a derivative through a DCO.
    Regulatory Objective: Commission regulation 23.605(c) seeks to 
ensure that research provided to the general public by an SD or MSP is 
unbiased and free from the influence of the interests of an SD or MSP 
arising from the SD's or MSP's trading business.
    In addition, the Sec.  23.605(d) (working in tandem with Sec.  
1.71) seeks to ensure open access to the clearing of swaps by requiring 
that access to and the provision of clearing services provided by an 
affiliate of an SD or MSP are not influenced by the interests of an 
SD's or MSP's trading business.
    Finally, Sec.  23.605(e) seeks to ensure equal access to trading 
venues and clearinghouses, as well as orderly and fair markets, by 
requiring that each SD and MSP disclose to counterparties any material 
incentives or conflicts of interest regarding the decision of a 
counterparty to execute a derivative on a SEF or DCM, or to clear a 
derivative through a DCO.
    Comparable Hong Kong Law and Regulations: The applicants have 
represented to the Commission that the following provisions of law and 
regulations applicable in Hong Kong are in full force and effect in 
Hong Kong, and comparable to and as comprehensive as Commission 
regulation 23.605.
    The applicant represents to the Commission that AIs that are active 
in the OTC derivative market are typically also registered with the 
Hong Kong Securities and Futures Commission (``HKSFC'') and hence 
subject to the HKSFC's Code of Conduct. These AI's registered with the 
HKSFC include the current SD established in Hong Kong.
    Pursuant to Section 16 of the HKSFC's Code of Conduct, registrants 
must have:
     Mechanisms ensuring that analysts' trading activities or 
financial interests do not prejudice their investment research and 
recommendations;
     Mechanisms ensuring that analysts' investment research and 
recommendations are not prejudiced by the trading activities, financial 
interests or business relationships of the firms that employ them;
     Reporting lines for analysts and their compensation 
arrangements that are structured to eliminate or severely limit actual 
and potential conflicts of interest;
     Written internal procedures or controls to identify and 
eliminate, avoid, manage, or disclose actual and potential analyst 
conflicts of interest;
     Procedures to ensure that undue influence of securities 
issuers, institutional investors, and other outside parties on analysts 
is eliminated or managed;
     Controls to ensure that disclosures of actual and 
potential conflicts of interest are complete, timely, clear, concise, 
specific, and prominent; and
     Policies to ensure that analysts are held to high 
integrity standards.
    The HKMA Supervisory Policy Manual, Module CG-1 requires that the 
board of directors of an AI establish, implement, and maintain written 
policies that address the various conflicts of interest that may arise 
in the AI's business, and that provide for the prevention or management 
of these conflicts.
    In addition, the Banking Ordinance requires an AI to carry on its 
business with integrity, prudence and the appropriate degree of 
professional competence. The applicant represents that if an AI permits 
conflicts of interest (whether general or particular) to continue, it 
would raise doubts with the HKMA as to whether the AI is carrying on 
its business with integrity, prudence

[[Page 78861]]

and the appropriate degree of professional competence. Carrying on 
business in such a manner is one of the continuing authorization 
criteria under the Banking Ordinance. A failure to comply with such 
criterion is a ground for revocation of that AI's authorization to 
conduct banking or deposit-taking business in Hong Kong.
    Finally, the HKMA has represented to the Commission that, as part 
of its oversight and enforcement of the foregoing standards for AIs, 
the HKMA would require any AI (including an AI that is an SD) to adopt 
measures to prevent or manage any conflicts of interests that may areis 
or be discovered, including those involving the provision of clearing 
services by a clearing member of a DCO that is an affiliate of the AI, 
or the decision of a counterparty to execute a derivative on a SEF or 
DCM, or clear a derivative through a DCO. The measures include 
information barriers, segregation of duties, and, as appropriate, 
disclosures.
    Commission Determination: The Commission finds that the HKSFC and 
Banking Ordinance standards specified above with respect to conflicts 
of interest that may arise in producing or distributing research are 
generally identical in intent to Sec.  23.605(c) because such standards 
seek to ensure that research provided to the general public by an SD is 
unbiased and free from the influence of the interests of an SD arising 
from the SD's trading business.
    With respect to conflicts of interest that may arise in the 
provision of clearing services by an affiliate of an SD or MSP, the 
Commission further finds that although the general conflicts of 
interest prevention requirements in the Banking Ordinance and the HKMA 
Supervisory Policy Manual do not require with specificity that access 
to and the provision of clearing services provided by an affiliate of 
an SD or MSP not be improperly influenced by the interests of an SD's 
or MSP's trading business, such general requirements would require 
prevention and remediation of such improper influence when recognized 
or discovered. Thus such standards would ensure open access to 
clearing.
    Finally, although not as specific as the requirements of Sec.  
23.605(e) (Undue influence on counterparties), the Commission finds 
that the general disclosure requirements specified above would ensure 
equal access to trading venues and clearinghouses by requiring that 
each SD and MSP disclose to counterparties any material incentives or 
conflicts of interest regarding the decision of a counterparty to 
execute a derivative on a SEF or DCM, or to clear a derivative through 
a DCO.
    Based on the foregoing and the representations of the applicant, 
the Commission hereby determines that the requirements found in Hong 
Kong's laws and regulations specified above, in relation to conflicts 
of interest are comparable to and as comprehensive as Sec.  23.605.
6. Availability of Information for Disclosure and Inspection (Sec.  
23.606)
    Commission Requirement: Commission regulation 23.606 implements 
sections 4s(j)(3) and (4) of the CEA, and requires each SD and MSP to 
disclose to the Commission, and an SD's or MSP's U.S. prudential 
regulator (if any) comprehensive information about its swap activities, 
and to establish and maintain reliable internal data capture, 
processing, storage, and other operational systems sufficient to 
capture, process, record, store, and produce all information necessary 
to satisfy its duties under the CEA and Commission regulations. Such 
systems must be designed to provide such information to the Commission 
and an SD's or MSP's U.S. prudential regulator within the time frames 
set forth in the CEA and Commission regulations and upon request.
    Regulatory Objective: Commission regulation 23.606 seeks to ensure 
that each SD and MSP captures and maintains comprehensive information 
about their swap activities, and is able to retrieve and disclose such 
information to the Commission and its U.S. prudential regulator, if 
any, as necessary for compliance with the CEA and the Commission's 
regulations and for purposes of Commission oversight, as well as 
oversight by the SD's or MSP's U.S. prudential regulator, if any.
    The Commission observes that it would be impossible to meet the 
regulatory objective of Sec.  23.606 unless the required information is 
available to the Commission and any U.S. prudential regulator under the 
foreign legal regime. Thus, a comparability determination with respect 
to the information access provisions of Sec.  23.606 would be premised 
on whether the relevant information would be available to the 
Commission and any U.S. prudential regulator of the SD or MSP, not on 
whether an SD or MSP must disclose comprehensive information to its 
regulator in its home jurisdiction.
    Comparable Hong Kong Law and Regulations: The applicant has 
represented to the Commission that the following provisions of law and 
regulations applicable in Hong Kong are in full force and effect in 
Hong Kong, and comparable to and as comprehensive as Commission 
regulation 23.606.
    Under Section 56 of the Hong Kong Banking Ordinance, AIs are 
required to produce records and information whenever requested by the 
HKMA, including information and records relating to the AI's OTC 
derivatives or swaps activities. Under the Banking Ordinance, the 
failure to produce records and information when requested by the HKMA 
is a criminal offense. The HKMA represents that in order to produce 
records and information whenever requested by the HKMA, AIs must 
necessarily have adequate systems and infrastructure to enable them to 
retrieve such records and information.
    Commission Determination: The Commission finds that the Banking 
Ordinance standards specified above are generally identical in intent 
to Sec.  23.606 because such standards seek to ensure that AIs capture 
and store comprehensive information about their swap activities, and 
are able to retrieve and disclose such information as necessary for 
compliance with applicable law and for purposes of regulatory 
oversight.
    Based on the foregoing and the representations of the applicant, 
the Commission hereby determines that the requirements of the Hong Kong 
Banking Ordinance with respect to the availability of information for 
inspection and disclosure, as specified above, are comparable to, and 
as comprehensive as, Sec.  23.606, with the exception of Sec.  
23.606(a)(2) concerning the requirement that an SD or MSP make 
information required by Sec.  23.606(a)(1) available promptly upon 
request to Commission staff and the staff of an applicable U.S. 
prudential regulator. The applicant has not submitted any provision of 
law or regulations applicable in Hong Kong upon which the Commission 
could make a finding that SDs and MSPs would be required to retrieve 
and disclose comprehensive information about their swap activities to 
the Commission or any U.S. prudential regulator as necessary for 
compliance with the CEA and Commission regulations, and for purposes of 
Commission oversight and the oversight of any U.S. prudential 
regulator.
    Notwithstanding that the Commission has not determined that the 
requirements of the Hong Kong Banking Ordinance are comparable to and 
as comprehensive as Sec.  23.606(a)(2), any SD or MSP to which both 
Sec.  23.606 and the Banking Ordinance standards specified above are 
applicable would generally be

[[Page 78862]]

deemed to be in compliance with Sec.  23.606(a)(2) if that SD or MSP 
complies with the Banking Ordinance standards specified above, subject 
to compliance with the requirement that it produce information to 
Commission staff and the staff of an applicable U.S. prudential 
regulator in accordance with Sec.  23.606(a)(2).

C. Swap Data Recordkeeping (Sec. Sec.  23.201 and 23.203)

    Commission Requirement: Sections 4s(f)(1)(B) and 4s(g)(1) of the 
CEA, and Commission regulation 23.201 generally require SDs and MSPs to 
retain records of each transaction, each position held, general 
business records (including records related to complaints and sales and 
marketing materials), records related to governance, financial records, 
records of data reported to SDRs, and records of real-time reporting 
data along with a record of the date and time the SD or MSP made such 
reports. Transaction records must be kept in a form and manner 
identifiable and searchable by transaction and counterparty.
    Commission regulation 23.203, requires SDs and MSPs to maintain 
records of a swap transaction until the termination, maturity, 
expiration, transfer, assignment, or novation date of the transaction, 
and for a period of five years after such date. Records must be 
``readily accessible'' for the first 2 years of the 5 year retention 
period (consistent with Sec.  1.31).
    The Commission notes that the comparability determination below 
with respect to Sec. Sec.  23.201 and 23.203 encompasses both swap data 
recordkeeping generally and swap data recordkeeping relating to 
complaints and marketing and sales materials in accordance with Sec.  
23.201(b)(3) and (4).\40\
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    \40\ See the Guidance for a discussion of the availability of 
substituted compliance with respect to swap data recordkeeping, 78 
FR 45332-33.
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    Regulatory Objective: Through the Commission's regulations 
requiring SDs and MSPs to keep comprehensive records of their swap 
transactions and related data, the Commission seeks to ensure the 
effectiveness of the internal controls of SDs and MSPs, and 
transparency in the swaps market for regulators and market 
participants.
    The Commission's regulations require SDs and MSPs to keep swap data 
in a level of detail sufficient to enable regulatory authorities to 
understand an SD's or MSP's swaps business and to assess its swaps 
exposure.
    By requiring comprehensive records of swap data, the Commission 
seeks to ensure that SDs and MSPs employ effective risk management, and 
strictly comply with Commission regulations. Further, such records 
facilitate effective regulatory oversight.
    The Commission observes that it would be impossible to meet the 
regulatory objective of Sec. Sec.  23.201 and 23.203 unless the 
required information is available to the Commission and any U.S. 
prudential regulator under the foreign legal regime. Thus, a 
comparability determination with respect to the information access 
provisions of Sec.  23.203 would be premised on whether the relevant 
information would be available to the Commission and any U.S. 
prudential regulator of the SD or MSP, not on whether an SD or MSP must 
disclose comprehensive information to its regulator in its home 
jurisdiction.
    Comparable Hong Kong Law and Regulations: The applicant has 
represented to the Commission that the following provisions of law and 
regulations applicable in Hong Kong are in full force and effect in 
Hong Kong, and comparable to and as comprehensive as sections 
4s(f)(1)(B) and 4s(g)(1) of the CEA and Sec. Sec.  23.201 and 23.203.
    Section 20 of Schedule 2 to the Hong Kong Anti-Money Laundering and 
Counter-Terrorist Financing (Financial Institution) Ordinance (Cap 615) 
(the ``AML-CTF Ordinance'') provides that financial institutions must 
keep all documents, data, and information related to each transaction 
it carries out. The AML-CTF Ordinance provides that financial 
institutions must keep all files relating to each customer account and 
all business correspondence with each customer. The AML-CTF Ordinance 
provides that transaction records must be kept for six years after the 
transaction is completed.
    The HKMA represents to the Commission that the recordkeeping 
requirements in the AML-CTF Ordinance apply to all transactions that an 
AI carries out with each of its customers, including swap and OTC 
derivative transactions.\41\
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    \41\ The HKMA noted that a record keeping requirement specific 
to OTC derivative transactions is intended to be included in the 
forthcoming law implementing the regulatory regime for such 
transactions. Pursuant to such regulatory regime, the HKMA 
tentatively expects that records of OTC derivatives transactions 
(including swaps) will be required to be maintained for the duration 
of the contract plus six years thereafter. The retention period for 
voice recordings is to be decided. The HKMA will set out specific 
recordkeeping requirements in the regulations or guidelines to be 
issued to supplement the new regulatory regime.
---------------------------------------------------------------------------

    Commission Determination: The Commission finds that the Hong Kong 
standards specified above are generally identical in intent to 
Sec. Sec.  23.201 and 23.203 because such standards seek to ensure the 
effectiveness of the internal controls of SDs and MSPs, and 
transparency in the swaps market for regulators and market 
participants.
    In addition, the Commission finds that the Hong Kong standards 
specified above require SDs and MSPs to keep swap data in a level of 
detail sufficient to enable regulatory authorities to understand an 
SD's or MSP's swaps business and to assess its swaps exposure.
    Finally, the Commission finds that the Hong Kong standards 
specified above, by requiring comprehensive records of swap data, seek 
to ensure that SDs and MSPs employ effective risk management, seek to 
ensure that SDs and MSPs strictly comply with applicable regulatory 
requirements (including the CEA and Commission regulations), and that 
such records facilitate effective regulatory oversight.
    Based on the foregoing and the representations of the applicant, 
the Commission hereby determines that the recordkeeping requirements of 
the Hong Kong AML-CTF Ordinance with respect to swap data 
recordkeeping, as specified above, are comparable to, and as 
comprehensive as, Sec. Sec.  23.201 and 23.203, with the exception of 
Sec.  23.203(b)(2) concerning the requirement that an SD or MSPs make 
records required by Sec.  23.201 open to inspection by any 
representative of the Commission, the United States Department of 
Justice, or any applicable U.S. prudential regulator. The applicant has 
not submitted any provision of law or regulations applicable in Hong 
Kong upon which the Commission could make a finding that SDs and MSPs 
would be required to make records required by Sec.  23.201 open to 
inspection by any representative of the Commission, the United States 
Department of Justice, or any applicable U.S. prudential regulator.
    Notwithstanding that the Commission has not determined that the 
requirements of the Hong Kong AML-CTF Ordinance are comparable to and 
as comprehensive as Sec.  23.203(b)(2), any SD or MSP to which both 
Sec.  23.203 and the Hong Kong AML-CTF Ordinance are applicable would 
generally be deemed to be in compliance with Sec.  23.203(b)(2) if that 
SD or MSP complies with the Hong Kong AML-CTF Ordinance, subject to 
compliance with the requirement that it make records required by Sec.  
23.201 open to inspection by any representative of the Commission, the 
United States Department of Justice, or any applicable

[[Page 78863]]

U.S. prudential regulator in accordance with Sec.  23.203(b)(2).

    Issued in Washington, DC on December 20, 2013, by the 
Commission.
Melissa D. Jurgens,
Secretary of the Commission.

Appendices to Comparability Determination for Hong Kong: Certain 
Entity-Level Requirements

Appendix 1--Commission Voting Summary

    On this matter, Chairman Gensler and Commissioners Chilton and 
Wetjen voted in the affirmative. Commissioner O'Malia voted in the 
negative.

Appendix 2--Statement of Chairman Gary Gensler and Commissioners 
Chilton and Wetjen

    We support the Commission's approval of broad comparability 
determinations that will be used for substituted compliance 
purposes. For each of the six jurisdictions that has registered swap 
dealers, we carefully reviewed each regulatory provision of the 
foreign jurisdictions submitted to us and compared the provision's 
intended outcome to the Commission's own regulatory objectives. The 
resulting comparability determinations for entity-level requirements 
permit non-U.S. swap dealers to comply with regulations in their 
home jurisdiction as a substitute for compliance with the relevant 
Commission regulations.
    These determinations reflect the Commission's commitment to 
coordinating our efforts to bring transparency to the swaps market 
and reduce its risks to the public. The comparability findings for 
the entity-level requirements are a testament to the comparability 
of these regulatory systems as we work together in building a strong 
international regulatory framework.
    In addition, we are pleased that the Commission was able to find 
comparability with respect to swap-specific transaction-level 
requirements in the European Union and Japan.
    The Commission attained this benchmark by working cooperatively 
with authorities in Australia, Canada, the European Union, Hong 
Kong, Japan, and Switzerland to reach mutual agreement. The 
Commission looks forward to continuing to collaborate with both 
foreign authorities and market participants to build on this 
progress in the months and years ahead.

Appendix 3--Dissenting Statement of Commissioner Scott D. O'Malia

    I respectfully dissent from the Commodity Futures Trading 
Commission's (``Commission'') approval of the Notices of 
Comparability Determinations for Certain Requirements under the laws 
of Australia, Canada, the European Union, Hong Kong, Japan, and 
Switzerland (collectively, ``Notices''). While I support the narrow 
comparability determinations that the Commission has made, moving 
forward, the Commission must collaborate with foreign regulators to 
harmonize our respective regimes consistent with the G-20 reforms.
    However, I cannot support the Notices because they: (1) Are 
based on the legally unsound cross-border guidance (``Guidance''); 
\1\ (2) are the result of a flawed substituted compliance process; 
and (3) fail to provide a clear path moving forward. If the 
Commission's objective for substituted compliance is to develop a 
narrow rule-by-rule approach that leaves unanswered major regulatory 
gaps between our regulatory framework and foreign jurisdictions, 
then I believe that the Commission has successfully achieved its 
goal today.
---------------------------------------------------------------------------

    \1\ Interpretive Guidance and Policy Statement Regarding 
Compliance with Certain Swap Regulations, 78 FR 45292 (Jul. 26, 
2013).
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Determinations Based on Legally Unsound Guidance

    As I previously stated in my dissent, the Guidance fails to 
articulate a valid statutory foundation for its overbroad scope and 
inconsistently applies the statute to different activities.\2\ 
Section 2(i) of the Commodity Exchange Act (``CEA'') states that the 
Commission does not have jurisdiction over foreign activities unless 
``those activities have a direct and significant connection with 
activities in, or effect on, commerce of the United States . . .'' 
\3\ However, the Commission never properly articulated how and when 
this limiting standard on the Commission's extraterritorial reach is 
met, which would trigger the application of Title VII of the Dodd-
Frank Act \4\ and any Commission regulations promulgated thereunder 
to swap activities that are outside of the United States. Given this 
statutorily unsound interpretation of the Commission's 
extraterritorial authority, the Commission often applies CEA section 
2(i) inconsistently and arbitrarily to foreign activities.
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    \2\ http://www.cftc.gov/PressRoom/SpeechesTestimony/omaliastatement071213b.
    \3\ CEA section 2(i); 7 U.S.C. 2(i).
    \4\ Title VII of the Dodd-Frank Wall Street Reform and Consumer 
Protection Act, Public Law 111-203, 124 Stat. 1376 (2010).
---------------------------------------------------------------------------

    Accordingly, because the Commission is relying on the legally 
deficient Guidance to make its substituted compliance 
determinations, and for the reasons discussed below, I cannot 
support the Notices. The Commission should have collaborated with 
foreign regulators to agree on and implement a workable regime of 
substituted compliance, and then should have made determinations 
pursuant to that regime.

Flawed Substituted Compliance Process

    Substituted compliance should not be a case of picking a set of 
foreign rules identical to our rules, determining them to be 
``comparable,'' but then making no determination regarding rules 
that require extensive gap analysis to assess to what extent each 
jurisdiction is, or is not, comparable based on overall outcomes of 
the regulatory regimes. While I support the narrow comparability 
determinations that the Commission has made, I am concerned that in 
a rush to provide some relief, the Commission has made substituted 
compliance determinations that only afford narrow relief and fail to 
address major regulatory gaps between our domestic regulatory 
framework and foreign jurisdictions. I will address a few examples 
below.
    First, earlier this year, the OTC Derivatives Regulators Group 
(``ODRG'') agreed to a number of substantive understandings to 
improve the cross-border implementation of over-the-counter 
derivatives reforms.\5\ The ODRG specifically agreed that a 
flexible, outcomes-based approach, based on a broad category-by-
category basis, should form the basis of comparability 
determinations.\6\
---------------------------------------------------------------------------

    \5\ http://www.cftc.gov/PressRoom/PressReleases/pr6678-13.
    \6\ http://www.cftc.gov/ucm/groups/public/@newsroom/documents/file/odrgreport.pdf. The ODRG agreed to six understandings. 
Understanding number 2 states that ``[a] flexible, outcomes-based 
approach should form the basis of final assessments regarding 
equivalence or substituted compliance.''
---------------------------------------------------------------------------

    However, instead of following this approach, the Commission has 
made its comparability determinations on a rule-by-rule basis. For 
example, in Japan's Comparability Determination for Transaction-
Level Requirements, the Commission has made a positive comparability 
determination for some of the detailed requirements under the swap 
trading relationship documentation provisions, but not for other 
requirements.\7\ This detailed approach clearly contravenes the 
ODRG's understanding.
---------------------------------------------------------------------------

    \7\ The Commission made a positive comparability determination 
for Commission regulations 23.504(a)(2), (b)(1), (b)(2), (b)(3), 
(b)(4), (c), and (d), but not for Commission regulations 
23.504(b)(5) and (b)(6).
---------------------------------------------------------------------------

    Second, in several areas, the Commission has declined to 
consider a request for a comparability determination, and has also 
failed to provide an analysis regarding the extent to which the 
other jurisdiction is, or is not, comparable. For example, the 
Commission has declined to address or provide any clarity regarding 
the European Union's regulatory data reporting determination, even 
though the European Union's reporting regime is set to begin on 
February 12, 2014. Although the Commission has provided some limited 
relief with respect to regulatory data reporting, the lack of 
clarity creates unnecessary uncertainty, especially when the 
European Union's reporting regime is set to begin in less than two 
months.
    Similarly, Japan receives no consideration for its mandatory 
clearing requirement, even though the Commission considers Japan's 
legal framework to be comparable to the U.S. framework. While the 
Commission has declined to provide even a partial comparability 
determination, at least in this instance the Commission has provided 
a reason: the differences in the scope of entities and products 
subject to the clearing requirement.\8\ Such treatment creates 
uncertainty and is contrary to increased global harmonization 
efforts.
---------------------------------------------------------------------------

    \8\ Yen-denominated interest rate swaps are subject to the 
mandatory clearing requirement in both the U.S. and Japan.
---------------------------------------------------------------------------

    Third, in the Commission's rush to meet the artificial deadline 
of December 21, 2013, as established in the Exemptive Order 
Regarding Compliance with Certain Swap

[[Page 78864]]

Regulations (``Exemptive Order''),\9\ the Commission failed to 
complete an important piece of the cross-border regime, namely, 
supervisory memoranda of understanding (``MOUs'') between the 
Commission and fellow regulators.
---------------------------------------------------------------------------

    \9\ Exemptive Order Regarding Compliance With Certain Swap 
Regulations, 78 FR 43785 (Jul. 22, 2013).
---------------------------------------------------------------------------

    I have previously stated that these MOUs, if done right, can be 
a key part of the global harmonization effort because they provide 
mutually agreed-upon solutions for differences in regulatory 
regimes.\10\ Accordingly, I stated that the Commission should be 
able to review MOUs alongside the respective comparability 
determinations and vote on them at the same time. Without these 
MOUs, our fellow regulators are left wondering whether and how any 
differences, such as direct access to books and records, will be 
resolved.
---------------------------------------------------------------------------

    \10\ http://www.cftc.gov/PressRoom/SpeechesTestimony/opaomalia-29.
---------------------------------------------------------------------------

    Finally, as I have consistently maintained, the substituted 
compliance process should allow other regulatory bodies to engage 
with the full Commission.\11\ While I am pleased that the Notices 
are being voted on by the Commission, the full Commission only 
gained access to the comment letters from foreign regulators on the 
Commission's comparability determination draft proposals a few days 
ago. This is hardly a transparent process.
---------------------------------------------------------------------------

    \11\ http://www.cftc.gov/PressRoom/SpeechesTestimony/omaliastatement071213b.
---------------------------------------------------------------------------

Unclear Path Forward

    Looking forward to next steps, the Commission must provide 
answers to several outstanding questions regarding these 
comparability determinations. In doing so, the Commission must 
collaborate with foreign regulators to increase global 
harmonization.
    First, there is uncertainty surrounding the timing and outcome 
of the MOUs. Critical questions regarding information sharing, 
cooperation, supervision, and enforcement will remain unanswered 
until the Commission and our fellow regulators execute these MOUs.
    Second, the Commission has issued time-limited no-action relief 
for the swap data repository reporting requirements. These 
comparability determinations will be done as separate notices. 
However, the timing and process for these determinations remain 
uncertain.
    Third, the Commission has failed to provide clarity on the 
process for addressing the comparability determinations that it 
declined to undertake at this time. The Notices only state that the 
Commission may address these requests in a separate notice at a 
later date given further developments in the law and regulations of 
other jurisdictions. To promote certainty in the financial markets, 
the Commission must provide a clear path forward for market 
participants and foreign regulators.
    The following steps would be a better approach: (1) The 
Commission should extend the Exemptive Order to allow foreign 
regulators to further implement their regulatory regimes and 
coordinate with them to implement a harmonized substituted 
compliance process; (2) the Commission should implement a flexible, 
outcomes-based approach to the substituted compliance process and 
apply it similarly to all jurisdictions; and (3) the Commission 
should work closely with our fellow regulators to expeditiously 
implement MOUs that resolve regulatory differences and address 
regulatory oversight issues.

Conclusion

    While I support the narrow comparability determinations that the 
Commission has made, it was my hope that the Commission would work 
with foreign regulators to implement a substituted compliance 
process that would increase the global harmonization effort. I am 
disappointed that the Commission has failed to implement such a 
process.
    I do believe that in the longer term, the swaps regulations of 
the major jurisdictions will converge. At this time, however, the 
Commission's comparability determinations have done little to 
alleviate the burden of regulatory uncertainty and duplicative 
compliance with both U.S. and foreign regulations.
    The G-20 process delineated and put in place the swaps market 
reforms in G-20 member nations. It is then no surprise that the 
Commission must learn to coordinate with foreign regulators to 
minimize confusion and disruption in bringing much needed clarity to 
the swaps market. For all these shortcomings, I respectfully dissent 
from the Commission's approval of the Notices.
[FR Doc. 2013-30975 Filed 12-26-13; 8:45 am]
BILLING CODE 6351-01-P