Margin Requirements for Uncleared Swaps for Swap Dealers and Major Swap Participants, 229-250 [2020-27736]
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Federal Register / Vol. 86, No. 2 / Tuesday, January 5, 2021 / Rules and Regulations
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Issued in Washington, DC, on November
25, 2020, by the Commission.
Robert Sidman,
Deputy Secretary of the Commission.
Appendices to Portfolio Reconciliation
Requirements for Swap Dealers and
Major Swap Participants—Revision of
‘‘Material Terms’’ Definition—Voting
Summary and Chairman’s and
Commissioners’ Statements
Appendix 1—Voting Summary
On this matter, Chairman Tarbert and
Commissioners Quintenz, Behnam, Stump,
and Berkovitz voted in the affirmative. No
Commissioner voted in the negative.
Appendix 2—Statement of
Commissioner Dan M. Berkovitz
I support today’s interim final rule that
will maintain the continuity of swap
portfolio reconciliation requirements for
swap dealers. In September 2012, the
Commission established in regulation 23.502
the requirement for swap dealers to regularly
reconcile key material terms of swaps in
portfolios with certain counterparties. These
portfolios can include hundreds, thousands,
and even tens of thousands of individual
swap transactions. Regularly reconciling
economic terms that determine the periodic
payments made on swap portfolios reduces
the likelihood of significant disputes and
potential payment shortfalls or interruptions.
Reducing these events reduces risk in the
financial system, particularly during times of
market stress.1
On September 17, 2020, the Commission
adopted a final rule revising parts 45, 46, and
49 of its regulations on swap data
recordkeeping and reporting requirements. In
the amendments, significant changes were
made to material terms that are crossreferenced in regulation 23.502. The
unintended consequence would be to render
the portfolio reconciliation requirement
ineffective when the swap data regulations go
into effect in approximately 60 days. The IFR
corrects this unintended consequence by
reestablishing the same material economic
terms identified for regulation 23.502,
thereby maintaining the status quo for the
portfolio reconciliation requirement. This is
a necessary action to maintain the risk
reducing effects of that requirement.
[FR Doc. 2020–26536 Filed 1–4–21; 8:45 am]
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BILLING CODE 6351–01–P
1 See Confirmation, Portfolio Reconciliation,
Portfolio Compression, and Swap Trading
Relationship Documentation Requirements for
Swap Dealers and Major Swap Participants, 77 FR
55904, 55927 (Sept. 11, 2012).
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17 CFR Part 23
I. Background
Commodity Futures Trading
Commission.
ACTION: Final rule.
AGENCY:
The Commodity Futures
Trading Commission (‘‘Commission’’ or
‘‘CFTC’’) is adopting amendments
(‘‘Final Rule’’) to its margin
requirements for uncleared swaps for
swap dealers (‘‘SDs’’) and major swap
participants (‘‘MSPs’’) for which there is
not a prudential regulator (‘‘CFTC
Margin Rule’’). The Commission is
amending the CFTC Margin Rule to
revise the calculation method for
determining whether certain entities
come within the scope of its initial
margin (‘‘IM’’) requirements for
uncleared swaps beginning in the last
phase of the phased compliance
schedule, which starts on September 1,
2022, and the timing for compliance
with the IM requirements after the end
of the phased compliance schedule.
These amendments align certain aspects
of the CFTC Margin Rule with the Basel
Committee on Banking Supervision and
the International Organization of
Securities Commissions’ (‘‘BSBS/
IOSCO’’) Framework for margin
requirements for non-centrally cleared
derivatives (‘‘BCBS/IOSCO
Framework’’). The Commission is also
amending the CFTC Margin Rule to
allow SDs and MSPs subject to the
CFTC Margin Rule to use the risk-based
model calculation of IM of a
counterparty that is a CFTC-registered
SD or MSP to determine the amount of
IM to be collected from the counterparty
and to determine whether the IM
threshold amount for the exchange of
IM has been exceeded such that
documentation concerning the
collection, posting, and custody of IM
would be required.
DATES: This rule is effective February 4,
2021.
FOR FURTHER INFORMATION CONTACT:
Joshua B. Sterling, Director, 202–418–
6056, jsterling@cftc.gov; Thomas J.
Smith, Deputy Director, 202–418–5495,
tsmith@cftc.gov; Warren Gorlick,
Associate Director, 202–418–5195,
wgorlick@cftc.gov; or Carmen MoncadaTerry, Special Counsel, 202–418–5795,
cmoncada-terry@cftc.gov, Market
Participants Division, Commodity
SUMMARY:
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Futures Trading Commission, Three
Lafayette Centre, 1155 21st Street NW,
Washington, DC 20581.
SUPPLEMENTARY INFORMATION:
RIN 3038–AF05
Margin Requirements for Uncleared
Swaps for Swap Dealers and Major
Swap Participants
Note: The following appendices will not
appear in the Code of Federal Regulations.
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COMMODITY FUTURES TRADING
COMMISSION
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Section 4s(e) of the Commodity
Exchange Act (‘‘CEA’’ or ‘‘Act’’) 1
requires the Commission to adopt rules
establishing minimum initial and
variation margin requirements for all
swaps 2 that are (i) entered into by an SD
or MSP for which there is no prudential
regulator 3 (collectively, ‘‘covered swap
entities’’ or ‘‘CSEs’’) 4 and (ii) not
cleared by a registered derivatives
clearing organization (‘‘uncleared
swaps’’).5 To offset the greater risk to the
SD 6 or MSP 7 and the financial system
arising from the use of uncleared swaps,
these requirements must (i) help ensure
the safety and soundness of the SD or
MSP and (ii) be appropriate for the risk
associated with the uncleared swaps
held by the SD or MSP.8
Pursuant to its rulemaking authority
under section 4s(e), the Commission in
2016 promulgated Regulations 23.150
through 23.161, namely the CFTC
Margin Rule, which requires CSEs to
17
U.S.C. 6s(e) (capital and margin requirements).
section 1a(47), 7 U.S.C. 1a(47) (swap
definition); Regulation 1.3, 17 CFR 1.3 (further
definition of a swap). A swap includes, among other
things, an interest rate swap, commodity swap,
credit default swap, and currency swap.
3 CEA section 1a(39), 7 U.S.C. 1a(39) (defining the
term ‘‘prudential regulator’’ to include the Board of
Governors of the Federal Reserve System; the Office
of the Comptroller of the Currency; the Federal
Deposit Insurance Corporation; the Farm Credit
Administration; and the Federal Housing Finance
Agency). The definition of prudential regulator
further specifies the entities for which these
agencies act as prudential regulators. The
prudential regulators published final margin
requirements in November 2015. See generally
Margin and Capital Requirements for Covered Swap
Entities, 80 FR 74840 (Nov. 30, 2015) (‘‘Prudential
Margin Rule’’). The Prudential Margin Rule is
substantially similar to the CFTC Margin Rule,
including with respect to the CFTC’s phasing-in of
margin requirements.
4 CEA section 4s(e)(1)(B), 7 U.S.C. 6s(e)(1)(B). SDs
and MSPs for which there is a prudential regulator
must meet the margin requirements for uncleared
swaps established by the applicable prudential
regulator. CEA section 4s(e)(1)(A), 7 U.S.C.
6s(e)(1)(A).
5 CEA section 4s(e)(2)(B)(ii), 7 U.S.C.
6s(e)(2)(B)(ii). In Regulation 23.151, the
Commission further defined this statutory language
to mean all swaps that are not cleared by a
registered derivatives clearing organization or a
derivatives clearing organization that the
Commission has exempted from registration as
provided under the CEA. 17 CFR 23.151.
6 CEA section 1a(49), 7 U.S.C. 1a(49) (swap dealer
definition); Regulation 1.3 (further definition of
swap dealer).
7 CEA section 1a(32), 7 U.S.C. 1a(32) (major swap
participant definition); Regulation 1.3 (further
definition of major swap participant).
8 CEA section 4s(e)(3)(A), 7 U.S.C. 6s(e)(3)(A).
2 CEA
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Federal Register / Vol. 86, No. 2 / Tuesday, January 5, 2021 / Rules and Regulations
collect and post IM 9 and variation
margin (‘‘VM’’) 10 for uncleared swaps.11
In administering the CFTC Margin Rule,
the Commission has identified matters,
further described below, that may pose
challenges in the implementation of the
IM requirements.
A. Calculation Method for Determining
Whether Certain Entities Are Subject to
the IM Requirements and the Timing for
Compliance With the IM Requirements
After the End of the Phased Compliance
Schedule
Regulation 23.161 sets forth a
schedule for compliance with the CFTC
Margin Rule, spanning from September
1, 2016, to September 1, 2022.12 Under
the schedule, entities are required to
comply with the IM requirements in
staggered phases,13 starting with entities
with the largest average aggregate
notional amount (‘‘AANA’’), calculated
on a daily basis, of uncleared swaps,
uncleared security-based swaps, foreign
exchange forwards, and foreign
exchange swaps (‘‘covered products’’)
and then successively with lesser
AANA. The last phase of compliance,
which begins on September 1, 2022,
encompasses CSEs and covered
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9 IM
or initial margin is the collateral (calculated
as provided by Regulation 23.154) that is collected
or posted in connection with one or more uncleared
swaps pursuant to Regulation 23.152. IM is
intended to secure potential future exposure
following default of a counterparty (i.e., adverse
changes in the value of an uncleared swap that may
arise during the period of time when it is being
closed out). See CFTC Margin Rule, 81 FR at 683.
10 VM or variation margin, as defined in
Regulation 23.151, is the collateral provided by a
party to its counterparty to meet the performance
of its obligations under one or more uncleared
swaps between the parties as a result of a change
in the value of such obligations since the trade was
executed or the last time such collateral was
provided. 17 CFR 23.151.
11 See generally Margin Requirements for
Uncleared Swaps for Swap Dealers and Major Swap
Participants, 81 FR 636 (Jan. 6, 2016). The CFTC
Margin Rule, which became effective April 1, 2016,
is codified in part 23 of the Commission’s
regulations. 17 CFR 23.150 through 23.159, 23.161.
In May 2016, the Commission amended the CFTC
Margin Rule to add Regulation 23.160, 17 CFR
23.160, providing rules on its cross-border
application. See generally Margin Requirements for
Uncleared Swaps for Swap Dealers and Major Swap
Participants—Cross-Border Application of the
Margin Requirements, 81 FR 34818 (May 31, 2016).
12 See Margin Requirements for Uncleared Swaps
for Swap Dealers and Major Swap Participants, 85
FR 71246 (Nov. 9, 2020) (extending the phased
compliance schedule for the CFTC’s IM
requirements for uncleared swaps to September 1,
2022).
13 The schedule also addresses the VM
requirements under the CFTC Margin Rule,
providing a compliance period of September 1,
2016, through March 1, 2017. See 17 CFR 23.161(a).
The compliance period (including a six-month
extension to September 1, 2017, through no-action
relief) has long expired and all eligible entities are
required to comply with the VM requirements.
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counterparties 14 that did not come into
the scope of the IM requirements in
prior phases, including financial end
users (‘‘FEUs’’) with material swaps
exposure (‘‘MSE’’) 15 of more than $8
billion in AANA of covered products.16
The method for determining which
entities come within the scope of the
CFTC’s IM requirements beginning in
the last phase of compliance, as set forth
in the Commission’s regulations, differs
from the method set out in the BCBS/
IOSCO Framework.17 More specifically,
the BCBS/IOSCO Framework requires
that in the last phase of implementation
of the IM requirements, which begins on
September 1, 2022, entities with Ö8
billion 18 in average month-end
aggregate of notional amount (‘‘monthend AANA’’) of non-cleared derivatives,
including forex forwards and swaps,
during the period of March, April, and
May of the current year, to exchange IM
beginning on September 1 of each year.
In contrast, under the CFTC Margin
Rule, a CSE must exchange IM with an
FEU that has MSE with respect to
uncleared swaps entered into between
the parties beginning in the last phase
of compliance, which starts on
September 1, 2022. The MSE for the
14 The term ‘‘covered counterparty’’ is defined in
Regulation 23.151 as a financial end user with
material swaps exposure or a swap entity, including
an SD or MSP, that enters into swaps with a CSE.
See 17 CFR 23.151.
15 Regulation 23.151 provides that MSE for an
entity means that the entity and its margin affiliates
have an average daily aggregate notional amount of
uncleared swaps, uncleared security-based swaps,
foreign exchange forwards, and foreign exchange
swaps with all counterparties for June, July, or
August of the previous calendar year that exceeds
$8 billion, where such amount is calculated only for
business days. A company is a ‘‘margin affiliate’’ of
another company if: (i) Either company
consolidates the other on a financial statement
prepared in accordance with U.S. Generally
Accepted Accounting Principles, the International
Financial Reporting Standards, or other similar
standards; (ii) both companies are consolidated
with a third company on a financial statement
prepared in accordance with such principles or
standards; or (iii) for a company that is not subject
to such principles or standards, if consolidation as
described in paragraph (i) or (ii) of this definition
would have occurred if such principles or standards
had applied. 17 CFR 23.151.
16 The determination of MSE requires computing
AANA, calculated on a daily basis, of covered
products over June, July and August of the previous
calendar year. For simplicity purposes, this
formulation will be referred to as ‘‘daily average
AANA’’ to contrast with month-end AANA, which
is used for the calculation of AANA under the
BCBS/IOSCO Framework.
17 See generally BCBS/IOSCO, Margin
requirements for non-centrally cleared derivatives
(July 2019), https://www.bis.org/bcbs/publ/d475.pdf
(‘‘2019 BCBS/IOSCO Framework’’).
18 The U.S. adopted the BCBS/IOSCO threshold,
but replaced the 8 billion euro figure with a dollar
amount of $8 billion. As a result, there is a small
disparity in the threshold amounts given the
continuing fluctuation of the dollar-euro exchange
rate. The Final Rule does not address this issue.
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FEU is to be determined on September
1, 2022, based on the FEU’s daily
average AANA during the period of
June, July, and August of the prior year.
After the last phase of compliance, the
MSE for the FEU is to be determined on
January 1 of each calendar year based on
its daily average AANA during the June,
July, and August period of the prior
year, with application of the IM
requirements, if the FEU has MSE,
required to begin on January 1 of each
year.
The BCBS/IOSCO Framework was
originally promulgated in September
2013,19 and then revised in 2015.20 The
2015 version of the BCBS/IOSCO
Framework changed the calculation
period of June, July, and August, with
an annual implementation date of
December 1, to March, April, and May
of each calendar year, with an annual
implementation date of September 1.
The CFTC Margin Rule incorporated the
earlier 2013 version of the BCBS/IOSCO
Framework by adopting the June, July,
and August calculation period for the
annual calculation of MSE. As a result,
the Commission’s existing regulations
do not reflect the calculation period of
March, April, and May set forth in the
revised BCBS/IOSCO Framework
published in March 2015.
The Commission also departed from
BCBS/IOSCO’s month-end AANA
calculation for determining whether an
entity is subject to the IM requirements.
The Commission decided to adopt
instead daily AANA averaging to
determine whether an FEU has MSE, the
finding of which requires a CSE to
exchange IM with the FEU, to gather a
more comprehensive assessment of the
FEU’s participation in the swaps
market, and to address the possibility
that a market participant might
‘‘window dress’’ its exposure on an asof date such as year-end, in order to
avoid the Commission’s margin
requirements.21
As a result, the Commission’s current
method for the annual calculation of
MSE, which was adopted in
coordination with the U.S. prudential
19 See generally BCBS/IOSCO, Margin
requirements for non-centrally cleared derivatives
(Sept. 2013), https://www.bis.org/publ/
bcbs261.htm.
20 See generally BCBS/IOSCO, Margin
requirements for non-centrally cleared derivatives
(March 2015), https://www.bis.org/bcbs/publ/
d317.htm.
21 81 FR at 645. The potential for mutual funds
to alter their portfolios prior to disclosure
(‘‘window dressing’’) has been documented in the
financial economics literature. See, e.g., Musto, D.
(1999). ‘‘Investment decisions depend on portfolio
disclosures.’’ Journal of Finance 54, 935–952, or
Agarwal, V., Gay G. and Ling, L. (2011). ‘‘Window
dressing in mutual funds.’’ Review of Financial
Studies, 27, 3133–3170.
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regulators and is similar to the U.S.
prudential regulators’ method of
calculation, is not consistent with the
most recent version of the BCBS/IOSCO
Framework. Nor is it consistent with
requirements in other major market
jurisdictions, most of which adopted the
2015 BCBS/IOSCO Framework’s monthend AANA calculation using the period
of March, April, and May for the
purposes of determining whether an
entity is subject to the IM requirements
beginning in the last phase of
implementation.22
In a report prepared by a
subcommittee established by the CFTC’s
Global Markets Advisory Committee
(‘‘GMAC’’), discussed in more detail
below, the subcommittee reported that
the differences in the methods for
determining when an entity comes
within the scope of the IM requirements
and the timing of compliance after the
last phase of compliance may impose an
undue burden on market participants’
efforts to comply with the CFTC’s
margin requirements.23 The report
stated that entities have to account for
different compliance schedules and set
up and maintain separate processes for
determining when they meet the
thresholds for IM compliance.24
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B. No-Action Letter No. 19–29
Concerning the Calculation of IM
The Commission’s Division of Swap
Dealer and Intermediary Oversight 25
issued CFTC No-Action Letter 19–29 in
July 2019 in response to a request for
22 See, e.g., Commission Delegated Regulation
(EU) 2016/2251 Supplementing Regulation (EU) No.
648/2012 of the European Parliament and of the
Council of July 4, 2012 on OTC Derivatives, Central
Counterparties and Trade Repositories with Regard
to Regulatory Technical Standards for RiskMitigation Techniques for OTC Derivative Contracts
Not Cleared by a Central Counterparty (Oct. 4,
2016), Article 28(1), https://eur-lex.europa.eu/legalcontent/EN/TXT/PDF/
?uri=CELEX:32016R2251&from=EN. Financial
Services Agency of Japan (JFSA) Cabinet Office
Ordinance on Financial Instruments Business
(Cabinet Office Ordinance No. 52 of August 6,
2007), as amended (March 31, 2016), Article
123(11)(iv); Office of the Superintendent of
Financial Institutions Canada (OSFI) Guideline No.
E–22, Margin Requirements for Non-Centrally
Cleared Derivatives (April 2020), Section 5, 71,
https://www.osfi-bsif.gc.ca/Eng/Docs/e22.pdf.
23 See Recommendations to Improve Scoping and
Implementation of Initial Margin Requirements for
Non-Cleared Swaps, Report to the CFTC’s Global
Markets Advisory Committee by the Subcommittee
on Margin Requirements for Non-Cleared Swaps,
May 2020 at, 48–54, https://www.cftc.gov/media/
3886/GMAC_051920MarginSubcommitteeReport/
download (‘‘Margin Subcommittee Report’’ or
‘‘Report’’).
24 Id.
25 Pursuant to a Commission plan of
reorganization, the Division of Swap Dealer and
Intermediary Oversight was renamed Market
Participants Division (‘‘MPD’’) effective November
8, 2020. The Division is referred to as MPD
hereinafter.
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relief submitted by Cargill Incorporated
(‘‘Cargill’’), a CFTC-registered SD and
CSE.26 Cargill sought no-action relief to
be able to use the risk-based model
calculation of IM of a counterparty that
is an SD to determine the amount of IM
to be collected from the counterparty.
Cargill stated that while its swap
activity primarily involved physical
agricultural commodities with non-SD
counterparties seeking to mitigate
commercial risk, it maintained positions
that required the collection of IM from
SDs. Given the highly specialized and
discrete nature of its swaps business,
mainly focusing on commodities, Cargill
opted to rely on the standardized IM
table to calculate IM rather than develop
a risk-based model. Because the use of
the standardized table could generate
higher amounts of IM than a risk-based
model, requiring its SD counterparties
to post higher amounts of IM, Cargill
stated that SD counterparties might
choose not to trade with it.
Based on Cargill’s representations,
MPD stated that it would not
recommend enforcement action, subject
to specified conditions, if Cargill used
the risk-based model calculation of IM
of a counterparty that is a CFTCregistered SD as the amount of IM that
Cargill was required to collect from the
SD and to determine whether the IM
threshold amount of $50 million (‘‘IM
threshold amount’’) 27 had been
exceeded, which would trigger the
requirement for documentation
concerning the posting, collection, and
custody of IM collateral.
C. Market Participant Feedback
As previously mentioned, the CFTC’s
GMAC established a subcommittee of
market participants in January 2020 to
consider issues raised by the
implementation of margin requirements
for non-cleared swaps, identify
challenges associated with forthcoming
implementation phases, and prepare a
report with recommendations. The
subcommittee issued the Margin
Subcommittee Report and submitted the
Report to the GMAC.28 The GMAC
adopted the Report and recommended
to the Commission that it consider
adopting the Report’s recommendations.
Among other things, the Margin
Subcommittee Report recommended the
alignment of the CFTC Margin Rule
with the BCBS/IOSCO Framework with
respect to the method for calculating
AANA for determining whether an
entity comes within the scope of the IM
requirements and the timing of
compliance after the end of the phased
compliance schedule.29 The Report also
recommended the codification of Letter
19–29.30
In response to feedback from market
participants, in particular the GMAC
subcommittee’s recommendations, the
Commission issued a notice of proposed
rulemaking (‘‘Proposal’’), published in
the Federal Register on September 23,
2020, proposing amendments to the
CFTC Margin Rule. The Commission
proposed to align the CFTC Margin Rule
with the BCBS/IOSCO Framework with
respect to the method for calculating
AANA for determining whether certain
entities come within the scope of the IM
requirements and the timing of
compliance after the end of the phased
compliance schedule, noting that BCBS/
IOSCO is the global standard setter for
margin requirements for non-centrally
cleared derivatives and that the
proposed amendments would promote
international harmonization in the
application of the IM requirements. The
Commission stated that the disjunction
between the CFTC and BCBS/IOSCO
concerning the calculation of AANA
and the timing of compliance with the
IM requirements does not further any
regulatory purpose, noting, in
particular, the foreseeability of
calculation errors resulting from
differences in the calculation
methods.31
The Commission also proposed to
amend the CFTC Margin Rule to permit
CSEs to use the risk-based IM
calculation of a counterparty that is a
28 See
supra note 23.
Margin Subcommittee Report at 48–54.
30 See Margin Subcommittee Report at 34–36.
31 The possibility of calculation errors may be
mitigated by substituted compliance, as described
in Regulation 23.160, if the parties are non-U.S.
entities and substituted compliance is available, as
the parties may be able to avail themselves of the
rules in the foreign jurisdiction and may therefore
not face the concern about different calculation
methods. However, while the changes to the
method of calculation of AANA under the Final
Rule will align the CFTC’s method of calculation
with BCBS/IOSCO’s approach, the Commission
acknowledges that the changes will result in a
divergence from the U.S. prudential regulators’
approach, which may increase the potential for
calculation errors for entities located in the United
States.
29 See
26 CFTC Letter No. 19–29, Request for No-Action
Relief Concerning Calculation of Initial Margin
(Dec.19, 2019) (‘‘Letter 19–29’’), https://
www.cftc.gov/idc/groups/public/@lrlettergeneral/
documents/letter/19-29.pdf.
27 Under Regulation 23.154(a)(3), SDs and MSPs
subject to the Commission’s regulations are not
required to post or collect IM until the initial
margin threshold amount has been exceeded. See
17 CFR 23.154(a)(3). The term ‘‘initial margin
threshold amount’’ is defined in Regulation 23.151
to mean an aggregate credit exposure of $50 million
resulting from all uncleared swaps between an SD
and its margin affiliates (or an MSP and its margin
affiliates) on the one hand, and the SD’s (or MSP’s)
counterparty and its margin affiliates on the other.
See 17 CFR 23.151.
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CFTC-registered SD or MSP, in line with
the terms of Letter 19–29. The
Commission stated that this amendment
would promote legal certainty and
clarity, facilitating efforts by market
participants to take the application of
the Commission’s regulations into
account in planning their uncleared
swaps business, without undermining
the effectiveness of the CFTC Margin
Rule.
The Commission stated that the more
widespread availability of the relief
provided by Letter 19–29 would
promote efficient risk hedging by
smaller CSEs that offer swaps services to
smaller entities that are neither SDs nor
MSPs. The Commission further noted
that having the ability to use the riskbased IM calculation of a counterparty
that is an SD or MSP would allow
smaller CSEs to engage SDs and MSPs
that otherwise might be disincentivized
from trading with the CSEs. That is
because for such CSEs, the single
method of IM calculation available may
be the standardized IM table, as the
CSEs, given the discrete and limited
nature of their swaps business, may find
it uneconomical to develop and
maintain a proprietary model. As a
result, swap entity counterparties may
be required to post higher amounts of
IM to the CSEs, as the table-based
method of calculation does not account
for portfolio composition,
diversification and hedges.
In the preamble to the Proposal, the
Commission sought comment from the
public on the proposed amendments.32
The comment period for the Proposal
closed on October 23, 2020, and nine
comment letters were received: one
from an SD in the gas and electric power
industry; 33 one from an SD in the oil
and gas industry; 34 one from a life
insurance trade association; 35 one from
a group of swaps and financial industry
advocates; 36 one from a futures industry
group representing members active in
32 Margin Requirements for Uncleared Swaps for
Swap Dealers and Major Swap Participants, 85 FR
59702 (Sept. 23, 2020). The comment letters for the
Proposal are available at: https://comments.cftc.gov/
PublicComments/CommentList.aspx?id=4157.
33 Letter from Jennifer Minnis, BP Energy
Company (Oct. 23, 2020) (BPEC 10/23/2020 Letter).
34 Letter from Scott Earnest, Shell Trading Risk
Management, LLC (Oct. 23, 2020) (STRM 10/23/
2020 Letter).
35 Letter from Michael Lovendusky, American
Council of Life Insurers (Oct. 23, 2020) (ACLI 10/
23/2020 Letter).
36 Letter from Tara Kruse, James Kemp, and Kyle
Brandon for International Swaps and Derivatives
Association (ISDA), Global Foreign Exchange
Division (GFXD) of the Global Financial Markets
Association, and Securities Industry and Financial
Markets Association, respectively, (collectively,
‘‘Associations’’) (Oct. 22, 2020) (Associations 10/22/
2020 Letter).
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the physical commodities markets; 37
one from a managed fund industry
group; 38 one from a regulated funds
association; 39 one from a representative
of the asset management industry; 40 and
one from a group of commercial firms in
the energy industry.41
II. Final Rule, Summary of Comments
and Commission Response
The Commission is adopting revisions
to the method for calculating AANA for
determining whether an FEU has MSE
and the timing for compliance with the
IM requirements after the end of the last
phase of compliance to align these
aspects of the CFTC Margin Rule with
the BCBS/IOSCO Framework, as
proposed. The Commission is also
amending Regulation 23.154(a),
consistent with the terms of Letter 19–
29, and thus allowing CSEs to use the
risk-based model calculation of IM of
counterparties that are CFTC-registered
SDs or MSPs (‘‘swap entities’’) 42 to
determine the amount of IM to be
collected from such counterparties.
All the comment letters received on
the Proposal generally expressed
support for the proposed amendments 43
and the Commission’s efforts to identify
and address challenges in the
implementation of the CFTC’s margin
requirements as the phased compliance
schedule nears conclusion.44
37 Letter from Allison Lurton, Financial Industry
Association (Oct. 22, 2020) (FIA 10/22/2020 Letter).
38 Letter from Jennifer W. Han, Managed Funds
Association (Oct. 22, 2020) (MFA 10/22/2020
Letter).
39 Letter from Sarah A. Bessin, Investment
Company Institute (Oct. 22, 2020) (ICI 10/22/2020
Letter).
40 Letter from Jason Silverstein, Asset
Management Group of the Securities Industry and
Financial Markets Association (Oct. 22, 2020)
(SIFMA AMG 10/22/2020 Letter).
41 Letter from Alexander S. Holtan, Commercial
Energy Working Group (Oct. 22, 2020) (Working
Group 10/22/2020 Letter).
42 Regulation 23.151 defines the term ‘‘swap
entity’’ as a person that is registered with the
Commission as an SD or MSP under the CEA.
43 See ACLI 10/23/2020 Letter at 1; Associations
10/22/2020 Letter at 1; BPEC 10/23/2020 Letter at
2; FIA 10/22/2020 Letter at 2–3; ICI 10/22/2020
Letter at 1; MFA 10/22/2020 Letter at 1; SIFMA
AMG 10/22/2020 Letter at 1; STRM 10/23/2020
Letter at 1; Working Group 10/22/2020 Letter at 3.
A commenter stated that the Proposal reflects the
realities of the marketplace and further aligns the
U.S. regulations with the global regulators. See
ACLI 10/23/2020 Letter at 2. Other commenters
stated that the Proposal would enable the
implementation of the IM requirements in a
practical and efficient manner, as market
participants prepare for forthcoming compliance
dates, reducing complexity and burden associated
with implementation and would foster greater
liquidity and contribute to the lowering of hedging
costs, particularly in the last phases of the
compliance schedule. See BPEC 10/23/2020 Letter
at 2; MFA 10/22/2020 Letter at 2.
44 While expressing support for the Proposal,
commenters asked the Commission to consider
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Commenters expressed support for the
Proposal even in the absence of parallel
action by the U.S. prudential regulators,
while urging the CFTC to continue
coordination with the prudential
regulators and encourage corresponding
amendments to the prudential
regulators’ margin rules so that
prudentially regulated SDs and MSPs
and their counterparties are not
disadvantaged by requirements that are
neither globally nor domestically
harmonized.45
A. Regulation 23. 151—Amendments to
MSE Definition
As noted above, a CSE must exchange
IM with respect to uncleared swaps
with a counterparty that is an FEU that
has MSE beginning in the last phase of
the phased compliance schedule, which
will start on September 1, 2022.46
Regulation 23.151 provides that an
entity has MSE if it has more than $8
billion in AANA, calculated on a daily
basis, during June, July, and August of
the prior year.47 An FEU that has MSE
based on the calculation of AANA over
June, July, and August of 2021 would
come within the scope of the IM
requirements beginning on September 1,
2022. In subsequent calendar years after
September 1, 2022, however, because
the base year for calculating AANA is
the prior year, the annual determination
of MSE, which triggers the applicability
of the IM requirements, would be
January 1 of each year,48 using the
other issues raised by the CFTC Margin Rule,
including whether to exclude commodity swaps
from the CFTC’s uncleared margin requirements,
the need to harmonize the definition of financial
entity under section 2(h)(7) of the CEA and the
definition of financial end user under the CFTC
Margin Rule, whether treasury affiliates of an SD
should be exempt from the CFTC’s uncleared
margin requirements, and other topics raised in
prior communications to the Commission. See FIA
10/22/2020 Letter at 2; MFA 10/22/2020 Letter at
2. The commenters also asked the Commission to
consider other recommendations from the Margin
Subcommittee Report not addressed in the
Proposal. See ACLI 10/23/2020 Letter at 2;
Associations 10/22/2020 Letter at 1; SIFMA AMG
10/22/2020 Letter at 4. The Commission will not
currently act on these additional matters as they fall
outside the scope of the Proposal. The Commission
is aware of these issues and will continue to
consider them and monitor pertinent developments
to determine whether further Commission action
concerning these matters is appropriate in the
future.
45 ACLI 10/23/2020 Letter at 1; Associations 10/
22/2020 Letter at 4; MFA 10/22/2020 Letter at 2.
46 See 17 CFR 23.161(a)(7) (requiring CSEs to
comply with the CFTC’s IM requirements with
respect to uncleared swaps with counterparties that
are FEUs with MSE beginning on September 1,
2022).
47 For definition of MSE, see supra note 15.
48 January 1 is not explicitly set out in the
Commission’s regulations as the determination date
for MSE after the last phase of compliance.
However, absent the Final Rule, Regulation
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AANA for June, July, and August of the
prior year. If the FEU has MSE on
January 1 of a given year, the FEU
would come within the scope of the IM
requirements on January 1 of such year.
As such, a CSE would be required to
exchange regulatory IM beginning on
such January 1 for its uncleared swaps
with such FEU.
As proposed, the Commission is
amending the definition of MSE in
Regulation 23.151 by replacing ‘‘June,
July and August of the previous
calendar year’’ with ‘‘March, April and
May of that year.’’ The period for
calculating AANA for determining
whether an FEU has MSE will thus be
March, April, and May of ‘‘that year.’’
‘‘That year’’ will be understood to mean
the year the MSE status for an FEU is
assessed for the purpose of determining
whether a CSE that enters into
uncleared swaps with the FEU is
required to exchange IM with the FEU.
The Commission is also amending the
definition of MSE to set ‘‘September 1
of any year’’ as the determination date
for MSE. Under the current
requirements, absent a rule change, the
MSE for an FEU would have to be
determined first on September 1, 2022,
which would begin the last phase of
compliance under the phased
compliance schedule, and subsequently,
after the end of the phased compliance
schedule, on January 1 of each year.
Under the Final Rule, the date for the
determination of MSE after the end of
the phased compliance schedule will
shift from January 1 to September 1. The
change in the MSE determination date
to September 1 of each year effectively
sets the timing for compliance with the
IM requirements on September 1 after
the end of the phased compliance
schedule with respect to uncleared
swaps entered into by a CSE and an FEU
with MSE.
The shift of the MSE determination
date from January 1 to September 1 may
defer for nine months to September 1,
2023, the obligation to exchange IM for
a firm that absent the rule change would
have been subject to the IM
requirements on January 1, 2023.
Uncleared swaps entered into by the
firm during the nine-month deferral
period will be deemed legacy swaps, or
uncleared swaps exempt from the IM
requirements.49 As a result, in 2023, less
23.161(a)(7) (addressing the last phase of
compliance and the timing of compliance going
forward) and the definition of MSE in Regulation
23.151 can be reasonably read together to set
January 1 as the MSE determination date. See 17
CFR 23.151; 17 CFR 23.161(a)(7).
49 Pursuant to Regulation 23.161, the compliance
dates for the IM and VM requirements under the
CFTC Margin Rule are staggered across a phased
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collateral may be collected for uncleared
swaps, which could render uncleared
swap positions riskier and increase the
risk of contagion and systemic risk. The
Commission, however, notes that
because the deferral period will affect
entities with lower AANAs than entities
brought into scope in earlier phases of
the IM compliance schedule, the
potential uncollateralized risk would be
mitigated, becoming a lesser concern,
particularly because the proposed
change in the MSE determination date
will draw the Commission’s rules closer
to BCBS/IOSCO’s approach, promoting
international harmonization.
Conversely, the change in the MSE
determination date could also result in
requiring certain entities to post and
collect IM that otherwise would not
have been required to do so. This could
occur when an FEU meets the MSE
threshold in the last phase of
compliance beginning on September 1,
2022, but falls below the threshold by
January 1, 2023, because the AANA for
June, July, and August of the prior year
(i.e. 2022) is below $8 billion. In such
case, under the current rule, a CSE
would no longer be required to
exchange IM with such FEU beginning
on January 1, 2023. However, the
change in the MSE determination date
to September 1, as adopted, will require
the CSE to continue to exchange IM
with the FEU through September 1,
2023, as no determination of MSE status
will be required between September 1,
2022, and September 1, 2023, and, as a
result, the CSE will be required to
exchange IM with the FEU for nine
months longer than the January 1, 2023
MSE determination date would have
required.
These amendments to the definition
of MSE will have the effect of reducing
the time frame that FEUs and their CSE
counterparties will have to prepare for
compliance with the IM requirements.
Under the current rule being amended,
CSEs would have been required to
exchange regulatory IM with
counterparties that are FEUs with MSE
beginning on September 1, 2022, which
starts the last phase of the phased
compliance schedule. The MSE for the
FEU would have been determined using
the AANA for June, July, and August of
schedule that extends from September 1, 2016, to
September 1, 2022. The compliance period for the
VM requirements ended on March 1, 2017 (though
the CFTC and other regulators provided guidance
permitting a six-month grace period to implement
the requirements following the implementation
date), while the IM requirements continue to phase
in through September 1, 2022. An uncleared swap
entered into prior to an entity’s IM compliance date
is a ‘‘legacy swap’’ that is not subject to the IM
requirements. See CFTC Margin Rule, 81 FR at 651
and Regulation 23.161. 17 CFR 23.161.
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233
the prior year (i.e., 2021). As a result, for
the last phase of compliance in 2022, a
CSE and FEU would have had at least
twelve months to prepare for
compliance with the IM requirements.
By contrast, under the Final Rule, a CSE
and FEU, for the last phase of
compliance in 2022, will have only 3
months to prepare for IM compliance
because MSE will be required to be
determined using the AANA for March,
April, and May of the current year (i.e.,
2022).
Also, under the Final Rule, after the
last phase of compliance under the
phased compliance schedule, the date
for determining MSE for an FEU will be
September 1 of each year, and the
AANA calculation period for
determining whether an FEU has MSE
will be March, April, and May of such
year. As a result, an FEU with MSE and
its CSE counterparty will have three
months to prepare in advance of
compliance with the IM requirements,
whereas under the current rule being
amended, such parties would have had
four months because MSE would have
been required to be determined on
January 1 based on the AANA for June,
July, and August of the prior year.
In its Margin Subcommittee Report,
the GMAC subcommittee acknowledged
that the change in the period for the
calculation of AANA and the change in
the MSE determination date from
January 1 to September 1 would reduce
the time frame for preparing for
compliance with the IM requirements.50
Nevertheless, the subcommittee
expressed support for the changes,
noting that the changes would align the
CFTC’s margin requirements with the
BCBS/IOSCO Framework.51
The Commission is also amending the
definition of MSE to replace ‘‘average
daily aggregate notional amount,’’ or
daily average AANA, with ‘‘average
month-end aggregate notional amount,’’
for calculating AANA to determine
whether an entity has MSE. In adopting
the CFTC Margin Rule, the Commission
acknowledged that month-end AANA
averaging for the calculation of AANA
would be consistent with BCBS/
IOSCO’s approach. Nonetheless, the
CFTC, along with the U.S prudential
regulators, decided to adopt daily
AANA averaging for the calculation of
AANA to determine MSE. In the
preamble to the CFTC Margin Rule, the
50 See
Margin Subcommittee Report at 49.
(The GMAC subcommittee stated that the
divergence between the U.S. and international
requirements ‘‘creates complexity and confusion,
and leads to additional effort, cost and compliance
changes for smaller market participants that are
generally subject to margin requirements in
multiple global jurisdictions.’’).
51 Id.
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Commission explained that daily
average AANA would provide a more
comprehensive assessment of an FEU’s
participation in the swaps market in
determining whether the FEU has MSE
and would address the possibility of
window dressing of exposures by
market participants that might seek to
avoid the CFTC’s margin
requirements.52
In its Report, the GMAC
subcommittee stated that the use of
daily average AANA for the calculation
AANA entailed more work for smaller
counterparties and that such method of
calculation was only used in the United
States, noting that in the United States,
daily AANA averaging over the threemonth calculation period for Phase 5 53
required 64 observations while global
determinations based on month-end
AANA required only three
observations.54 The Report further
stated that month-end AANA averaging
over the three-month calculation period,
by accounting for three periodic dates
on which AANA would be calculated,
would mitigate the risk that market
participants would adjust exposures to
avoid the CFTC’s margin requirements,
and that it would be neither practicable
nor financially desirable for parties to
tear-up their positions on a recurring
basis prior to each month-end AANA
calculation, as it would interfere with
their hedging strategies and cause them
to incur realized profit and loss.55
The Commission notes that the
adoption of a month-end AANA
methodology for the calculation of
AANA to determine MSE will align the
CFTC’s approach with the BCBS/IOSCO
Framework and the approach adopted
by other major market jurisdictions. The
Commission does acknowledge that
such methodology for calculating
AANA could raise the risk that market
participants that are counterparties to
CSEs may ‘‘window dress’’ their
exposures by adjusting their exposures
as they approach the month-end date.
By doing so, an FEU would no longer
have to post and collect IM with all
CSEs for all its uncleared swaps for at
least twelve months from the date on
which compliance with the IM
52 See
supra note 21.
used in the Margin Subcommittee Report,
Phase 5 meant the phase of compliance with the
CFTC’s IM requirements that started on September
1, 2020, comprising covered swap entities and
covered counterparties with AANA between $750
billion and $50 billion. Since the issuance of the
Report, the IM compliance schedule has been
revised to defer the beginning of Phase 5 to
September 1, 2021. See 17 CFR 23.161(a)(6).
54 Margin Subcommittee Report at 52.
55 Id.
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53 As
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requirements would have been initially
required.56
To address this concern, the
Commission has determined to revise
the proposed rule text to include antievasion language prohibiting activities
not carried out in the ordinary course of
business and willfully designed to
circumvent the month-end AANA
calculation by, for example, altering
swap book composition to evade
meeting the definition of MSE and thus
coming within the scope of the CFTC’s
IM requirements. In addition, the
Commission points to the availability of
other tools to address the risk of
‘‘window dressing.’’ Regulation
23.402(a)(ii) requires CSEs to have
written policies and procedures to
prevent their evasion, or participation in
or facilitation of an evasion, of any
provision of the CEA or the
Commission’s regulations.57 Also,
section 4b of the CEA prohibits any
person entering into a swap with
another person from cheating or
defrauding or willfully deceiving or
attempting to deceive the other
person.58
The Commission further notes that
replacing daily average AANA with
month-end AANA for determining MSE
could result in an AANA calculation
that is not fully representative of an
entity’s participation in the swaps
markets. Under the current definition of
MSE, AANA must be calculated
counting uncleared swaps, uncleared
security-based swaps, foreign exchange
forwards, or foreign exchange swaps.
Under the Final Rule, which provides
for the calculation of AANA by
averaging month-end AANA during the
three-month calculation period, some of
the financial products that are required
to be included in the calculation,
because of their terms, such as tenure
and time of execution, may be
undercounted or excluded.59
The Commission believes that the
notional amount associated with
products that may be excluded from the
AANA calculation, as a result of the
change to month-end AANA averaging
for the calculation of AANA, may be
relatively low and that the products’
contribution to the AANA calculation
for the purpose of determining MSE
may be insignificant. In this regard, in
an analysis undertaken by the
Commission’s Office of the Chief
Economist (‘‘OCE’’) on a sample of days,
the OCE estimated (setting aside the
window dressing issue) that
calculations based on end-of-month
AANA would yield fairly similar results
as calculations based on the current
daily average AANA approach. Based
on 2020 swap data, the OCE estimated
that 492 entities of the 514 entities that
would have come into scope in the last
phase of the IM compliance schedule
(with AANA between $8 and $50
billion) based on the current daily
AANA calculation methodology would
also come into scope under the monthend AANA calculation methodology
being adopted herein. Put differently, all
but 22 of the entities that would be
above MSE under the existing
methodology would also be above MSE
under the month-end AANA
methodology. In addition, there are 20
entities that would be in scope under
the month-end AANA methodology, but
would not be in scope under the
existing methodology, so that the
aggregate number of entities under the
two methodologies differs only by two.
In the aggregate, the two
methodologies capture quite similar sets
of entities. In addition, the entities that
fall out of scope applying the monthend AANA methodology tend to be
among the smallest coming into IM
compliance in the last phase of
compliance. That is, entities that would
have been in-scope under the current
daily average AANA methodology but
not the month-end AANA methodology
average $6.95 billion in AANA,
compared to $20 billion for all entities
coming into scope in the last phase of
compliance.60
Based on the OCE analysis discussed
above, in the Commission’s view,
switching from daily average AANA to
month-end AANA for the purpose of
determining MSE would likely have a
limited impact on the protections
provided by the CFTC Margin Rule. In
addition, the Commission believes that
the anti-evasion language being
incorporated into the rule text by this
Final Rule mitigates the window
dressing concerns.61
56 Under the Final Rule, the MSE calculation will
be made annually on September 1 of each year and
will be in effect for the next twelve months after
that date.
57 17 CFR 23.402(a)(ii).
58 7 U.S.C. 6b.
59 For example, the Commission observes that
certain physical commodity swaps, such as
electricity and natural gas swaps, are products for
which a month-end AANA calculation might not
provide a comprehensive assessment of the full
scope of an FEU’s exposure to those products.
60 Note that the OCE calculation excludes
commodity swaps, and the examples of products
that end-of-month calculations may undercount
tend to be commodity swaps, such as natural gas
and electricity swaps. Overall, commodity swaps
tend to represent less than 1% of all swap trades.
See BIS Statistic Explorer, Global OTC derivatives
market (July 30, 2020), https://stats.bis.org/statx/
srs/table/d5.1?f=pdf.
61 The prudential regulators have not indicated
whether they intend to amend their margin
requirements consistent with the BCBS/IOSCO
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Commenters expressed strong support
for the amendments to the MSE
definition in Regulation 23.151 to align
the method for calculating AANA and
the timing of compliance with the IM
requirements after the end of the last
phase of compliance with the BCBS/
IOSCO Framework.62 Commenters
stated that the amendments would help
smaller market participants overcome
unnecessary operational challenges. 63
The commenters also stated that the
amendments would help entities that
conduct swaps business across
jurisdictions.64 A commenter stated that
the differences in the AANA calculation
methods and the timing of compliance
burden market participants, such as
asset managers, in determining whether
clients are in scope in the later phases
of the compliance schedule and create
a complex and confusing ongoing
monitoring process.65
Another commenter noted that the
U.S. is the only jurisdiction that
requires using the three-month period of
June, July and August of the preceding
year for the calculation of AANA, and
the only jurisdiction besides Brazil that
requires AANA to be calculated using
daily averaging rather than month-end
averaging over the three-month
period.66 The commenter stated that a
jurisdiction-specific approach creates
additional effort for smaller
counterparties coming into scope in the
later phases of the compliance schedule,
which need to run separate AANA
calculations using different time periods
and methods and need to provide
separate notifications to their
counterparties concerning the
application of the IM requirements.67
The commenter stated that according to
its estimates, 775 counterparties with a
total of 5,443 relationships could come
into the scope of global IM requirements
in the last phase of compliance
beginning September 1, 2022, and that
Framework and the amendments to the definition
of MSE discussed herein. Also of note, the U.S.
Securities and Exchange Commission (‘‘SEC’’) has
adopted a different approach that does not use MSE
for identifying entities that come within the scope
of the SEC margin requirements. See Capital,
Margin, and Segregation Requirements for SecurityBased Swap Dealers and Major Security-Based
Swap Participants and Capital and Segregation
Requirements for Broker-Dealers, 84 FR 43872 (Aug.
22, 2019).
62 See ACLI 10/23/2020 Letter at 1; Associations
10/22/2020 Letter at 2; FIA 10/22/2020 Letter at 4;
MFA 10/22/2020 Letter at 1; SIFMA AMG 10/22/
2020 Letter at 2; Working Group 10/22/2020 Letter
at 3.
63 SIFMA AMG 10/22/2020 Letter at 1; ACLI 10/
23/2020 Letter at 2.
64 Id.
65 Id.
66 Associations 10/22/2020 Letter at 2.
67 Id.
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over 74% of those counterparties will
qualify for the IM requirements with
less than EUR 25 billion AANA and
therefore may be in a position to
recalculate their AANA each year to
affirm the continued application of the
IM requirements.68 In addition,
hundreds of other counterparties that do
not initially breach the $8 billion
threshold will need to conduct annual
AANA calculations to confirm whether
they have come into scope of the IM
requirements in one or more
jurisdictions.69 The commenter
concluded by stating that jurisdictional
differences are difficult to track and
manage, leading to inadvertent errors or
omissions in the calculations and the
application of IM requirements, and that
the differences could interfere with the
ability to apply substituted compliance,
since a party may become subject to the
IM requirements under the CFTC
Margin Rule on a different date in the
U.S. as they will in other global
jurisdictions.70
Addressing concerns that the monthend AANA methodology for
determining MSE may result in window
dressing, a commenter stated that it was
not a realistic risk, as it would take
considerable effort for parties to unwind
their positions and then reestablish the
position on a recurring basis over the
three-month period, which would
interrupt their hedging strategies and
require the counterparties to absorb the
cost of realized profit and loss
changes.71 Another commenter echoed
these arguments, noting that tearing up
positions may interfere with hedging
and cause portfolios to incur realized
profit and loss changes.72 A commenter,
speaking on behalf of the managed fund
industry, stated that adjustments to
swaps positions to benefit from the
month-end AANA methodology would
be contraindicated in the case of an
investment adviser to a regulated fund
because the investment adviser is a
fiduciary to the fund that is legally
obligated to manage the fund’s assets in
accordance with that fund’s investment
strategy, policies, and limitations.73
Adjusting swap exposures over the
course of three periodic dates solely to
avoid IM could impose transaction costs
and inhibit a fund’s ability to manage its
portfolio risk, which may be
inconsistent with the adviser’s duty to
act in the best interest of its clients.74
68 Id.
69 Id.
235
Another commenter representing the
life insurance industry stated that the
proposed changes to the calculation of
AANA would be unlikely to change the
life insurers’ market behavior given that
life insurers are subject to significant
state regulation of their derivatives
activities.75
While recognizing that practical
considerations, as discussed by the
commenters, may reduce the risk of
window dressing, the Commission
believes that it should seek to remove
any potential incentives that may lead
to the manipulation of swaps exposures
to avoid meeting the definition of MSE
and thus coming within the scope of the
margin requirements. Accordingly, as
discussed further above, the
Commission is revising the proposed
rule text to incorporate an anti-evasion
provision prohibiting activities willfully
designed to avoid the month-end AANA
calculation.
With respect to the divergence
between the CFTC and the U.S.
prudential regulators regarding the
method for calculating AANA for
determining whether an entity has MSE
and the timing of compliance after the
last phase of the compliance schedule,
commenters stated that the CFTC
should proceed with the amendments
even if the prudential regulators do not
make corresponding changes to their
margin rules while also encouraging the
prudential regulators to align with the
global standards.76 A commenter further
noted that given that most affected FEUs
belong to a corporate group that has to
calculate AANA for multiple
jurisdictions, a deviation between the
CFTC and prudential regulators would
not increase the regulatory burden for
most FEUs as they would already be
calculating AANA under the CFTC/
prudential regulator approach and the
BCBS/IOSCO approach.77
After reviewing the comments, the
Commission has confirmed the rationale
articulated for proposing the
amendments to the definition of MSE in
Regulation 23.151 and is therefore
adopting the amendments as proposed,
subject to the change to the proposed
rule text to add the anti-evasion
provision discussed in more detail
above. The Commission believes, as
discussed in the preamble to the
Proposal, that the amendments will
eliminate the need to maintain separate
schedules and processes for the
computation of AANA and reduce the
burden and cost of compliance with the
70 Id.
71 Id.
75 ACLI
72 SIFMA
AMG 10/22/2020 Letter at 3.
73 ICI 10/22/2020 Letter at 5.
74 Id.
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10/23/2020 Letter at 2.
AMG 10/22/2020 Letter at 3; Working
Group 10/22/2020 Letter at 2.
77 Working Group 10/22/2020 Letter at 3.
76 SIFMA
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IM requirements.78 In addition, section
752(a) of the Dodd-Frank Act calls on
the CFTC to ‘‘consult and coordinate’’
with respect to the establishment of
consistent international standards.79 As
such, the Commission believes that
amending the definition of MSE, as
proposed, is appropriate to harmonize
its compliance schedule with that of
BCBS/IOSCO and, for entities engaging
in swaps with CSEs, eliminates a
disjunction that could risk calculation
errors and may hinder compliance with
the IM requirements.
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B. Regulation 23.154—Alternative
Method of Calculation of IM
As originally adopted, the CFTC
Margin Rule requires CSEs to collect
and post IM with covered
counterparties, including CFTCregistered SDs or MSPs.80 Regulation
23.154(a) directs CSEs to calculate, on a
daily basis, the IM amount to be
collected from covered counterparties.81
CSEs have the option to calculate the IM
amount by using either a risk-based
model or the standardized IM table set
forth in Regulation 23.154(c)(1).82 For a
CSE that elects to use a risk-based
model to calculate IM, Regulation
23.154(b)(1) requires the CSE to obtain
the written approval of the Commission
or a registered futures association 83 to
use the model to calculate IM required
by the Commission’s margin
requirements for uncleared swaps.84
After reviewing the comments on the
Proposal, the Commission is adopting
the amendment to Regulation 23.154(a)
as proposed, subject to some
clarifications further discussed below.
More specifically, the Commission is
amending Regulation 23.154(a) by
adding new paragraph (a)(5). Paragraph
(a)(5) permits a CSE that enters into
78 The Commission acknowledges that the
burdens on market participants will not be fully
eliminated, and in fact, may increase, for those
entities that enter into uncleared swaps with SDs
and MSPs that are subject to the U.S. prudential
regulators’ margin requirements for uncleared
swaps and come within the scope of the prudential
regulators’ margin regime, as the prudential
regulators have not revised their rules consistent
with the rule changes being adopted herein. Any
further discussion in this Final Rule of the benefits
of not needing to maintain separate schedules and
processes is limited to entities not also undertaking
swaps with U.S. prudentially regulated SDs.
79 See section 752(a) of the Dodd-Frank Wall
Street Reform and Consumer Protection Act, Public
Law 111–203, 124 Stat. 1376 (2010).
80 See 17 CFR 23.152.
81 See 17 CFR 23.154(a).
82 See id.
83 See 17 CFR 23.154(b)(1)(i). In this context, the
term ‘‘registered futures association’’ refers to the
National Futures Association (‘‘NFA’’), which is the
only futures association registered with the
Commission.
84 See 17 CFR 23.154(b)(1)(i).
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uncleared swaps with a CFTC-registered
SD or MSP, or a swap entity, to use the
swap entity’s risk-based model
calculation of IM to determine the
amount of IM that must be collected
from such counterparty and to
determine whether the IM threshold
amount has been exceeded, which
would require documentation
concerning the posting, collection, and
custody of IM.
This amendment to Regulation
23.154(a) modifies, consistent with
Letter 19–29, the requirement that CSEs
calculate the amount of IM to be
collected from a swap entity
counterparty by giving CSEs the option
to rely on such counterparty’s risk-based
IM calculation. The Commission
acknowledges that as a result, some
CSEs may forgo the adoption of a riskbased model to avoid the cost and
burden associated with developing and
maintaining such a model. The
Commission notes that without a model
to compute its own IM, a CSE may lack
reasonable means to verify the IM
amount provided by its counterparty or
may fail to recognize shortfalls in the IM
calculation or flaws in the
counterparty’s risk-based model. As
such, the CSE may collect insufficient
amounts of IM to offset counterparty
risk. In addition, the Commission
acknowledges the swap entity’s
potential conflict of interest in
calculating IM for the CSE, 85 as it may
be biased in favor of calculating and
posting lower amounts of IM to the CSE.
Based on the foregoing concerns, the
Commission is adopting, as part of the
new paragraph (5) in Regulation
23.154(a), two of the conditions set forth
in Letter 19–29.86
First, consistent with Letter 19–29,
paragraph (a)(5) requires that the riskbased model used by the CSE’s swap
entity counterparty for the calculation of
IM satisfy the requirements of
Regulation 23.154(b) (requiring the
approval of the use of the model by
either the Commission or the NFA), or
that the model be approved by a
prudential regulator.87
85 The Commission, however, notes that the
potential for conflict may be mitigated as the swap
entity, as a CFTC-registered SD or MSP, would be
subject to Regulation 23.600, which requires SDs
and MSPs to establish a risk management program
for the management and monitoring of risk,
including credit and legal risk, associated with their
swap activities. See 17 CFR 23.600.
86 As previously discussed, Letter 19–29 permits
Cargill to use the risk-based IM calculation of a
counterparty that is a CFTC-registered SD to
determine the amount of IM to be collected from
such counterparty, subject to specified conditions
discussed in more detail below.
87 The prudential regulators have not amended
their margin requirements for uncleared swaps
consistent with the amendment to Regulation
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Second, paragraph (a)(5) permits CSEs
to use the risk-based model calculation
of IM of a swap entity counterparty only
if the uncleared swaps for which IM is
calculated are entered into for the
purpose of hedging the CSE’s own risk.
The risk to be hedged is understood to
be the risk that a CSE would incur when
entering into swaps with non-swap
entity counterparties. By limiting the
application of this alternative method of
calculation of IM to only uncleared
swaps entered into for the purpose of
hedging risk arising from swaps entered
into with non-swap entities, the
Commission ensures the narrow
application of this method of
calculation.
The Commission contrasts the risk of
customer-facing swaps with the risk that
CSEs incur when entering into a swap
in a dealing capacity ‘‘to accommodate
the demand’’ of a swap entity
counterparty.88 The Commission
believes that it would be inappropriate
to allow a CSE to use the IM calculation
of the swap entity counterparty in this
latter case. The Commission notes that
the latter case (i.e., where the CSE is
acting in a dealing capacity for a
counterparty that is itself calculating
IM) would occur in the inter-dealer
market for swaps. The Commission
believes that a CSE participating in the
inter-dealer market in a dealing capacity
should have the capacity to develop,
implement, and use an approved riskbased model.
The Commission expects that new
paragraph (a)(5) would be relied upon
by CSEs that opt not to develop and
obtain approval to use a risk-based
model for the calculation of IM but
instead elect to use the table-based
calculation described in Regulation
23.154(c) for swaps with non-swap
entity counterparties. Such CSEs, in the
course of their uncleared swaps
business, would enter into uncleared
swaps mostly with end-user, non-swap
entity counterparties, and hedge the risk
of those swaps with other uncleared
swaps entered into with swap entity
counterparties. The CSEs would
exchange IM with the swap entity
counterparties for the uncleared swaps
entered into for their own hedging, as
the swaps would be subject to the CFTC
23.154(b) discussed herein. As such, the CFTC’s
margin requirements will diverge from the
prudential regulators’ approach.
88 See Further Definition of ‘‘Swap Dealer,’’
‘‘Security-Based Swap Dealer,’’ ‘‘Major Swap
Participant,’’ ‘‘Major Security-Based Swap
Participant’’ and ‘‘Eligible Contract Participant,’’ 77
FR 30596, 30608 (May 23, 2012) (noting that a
distinguishing characteristic of swap dealers is
being known in the industry for their availability
to accommodate demand for swaps).
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IM requirements.89 Because maintaining
a risk-based model imposes a
disproportionate burden on the CSEs
relative to the discrete and limited
nature of their uncleared swap
activities, the CSEs would generally not
have a model for the calculation of IM,
and thus new paragraph (a)(5) will
permit them to use the risk-based model
calculation of their swap entity
counterparties to determine the amount
of IM to be collected from such
counterparties.
Letter 19–29, in addition to the
foregoing conditions, requires that
Cargill, prior to using the risk-based
model calculation of IM of a swap entity
counterparty, agree with its
counterparty in writing that the IM
calculation be provided to Cargill in a
manner and time frame that would
allow Cargill to comply with the CFTC
Margin Rule and other applicable
Commission regulations, and that the
calculation be used to determine the
amount of IM to be collected from the
counterparty and to determine whether
the IM threshold amount has been
exceeded, which would require
documentation addressing the posting,
collection, and custody of IM. While the
Commission acknowledges that the
application of the alternative method of
calculation of IM adopted herein could
potentially result in the miscalculation
or underestimation of IM, it believes
that the safeguards in Part 23 of the
Commission’s regulations, such as the
documentation requirements in
Regulations 23.158 and 23.504, address
this concern.
Regulation 23.158(a) requires CSEs to
comply with the documentation
requirements set forth in Regulation
23.504.90 Regulation 23.504(b)(4)(i)
requires CSEs to have written
documentation reflecting the agreement
with a counterparty concerning
methods, procedures, rules, and inputs
for determining the value of each swap
at any time from execution to the
termination, maturity, or expiration of
such swap for the purposes of
complying with the margin
requirements under section 4s(e) of the
Act and regulations under this part.91
Regulation 23.504(b)(3)(i) also provides
that the documentation shall include
credit support arrangements, including
initial and variation margin
requirements, if any.92
89 See generally 17 CFR 23.152 (requiring CSEs to
exchange IM with swap entity counterparties for
their uncleared swaps).
90 17 CFR 23.158(a).
91 7 U.S.C. 6s(e);17 CFR 23.504(b)(4)(i).
92 Regulation 23.504(b)(1) further provides that
the documentation should include all terms
governing the trading relationship between an SD
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Letter 19–29 also sets forth two
conditions that are designed to ensure
that Cargill will undertake adequate risk
management with respect to its
uncleared swaps. The Commission
notes that the availability of the
alternative method of calculation of IM
may lead some CSEs to forgo the
adoption of a proprietary risk-based
model for the calculation of IM. Without
a proprietary risk-based model, CSEs
may not be able to precisely calculate
IM, or the potential future exposure of
uncleared swaps, which could undercut
a CSE’s ability to adequately manage the
risk of its swaps. However, the
Commission believes that CSEs’ risk
management obligations under the CEA
and the Commission’s regulations
provide adequate safeguards to address
this concern. In this regard, the
Commission notes that section 4s(j)(2) of
the CEA requires SDs and MSPs,
including CSEs, to establish robust and
professional risk management systems
adequate for the management of their
day-to-day swaps business 93 and that
Regulation 23.600, consistent with the
mandate under the CEA, requires SDs
and MSPs to establish and maintain a
risk management program to monitor
and manage risk associated with their
swap activities.94
To obtain relief under Letter 19–29,
Cargill also must ‘‘keep track of
exceedances’’ 95 and ‘‘[if] the
exceedances indicate that the Approved
IM Calculation Method fails to meet the
relevant regulators’ standards, [Cargill]
must take appropriate steps to ensure
compliance with its risk management
obligations and address exceedances
with its SD counterparty.’’ 96 The
purpose of this requirement is to ensure
that Cargill monitors, identifies, and
addresses potential shortfalls in the
amount of IM generated by the
counterparty. Cargill must also report to
the CFTC ‘‘any adjustments and
enhancements . . . applied to the
amount of IM calculated pursuant to the
Approved IM Calculation Method to
ensure [Cargill’s] collection of adequate
amounts of IM.’’
The Commission notes that if a CSE
declines to adopt a proprietary model to
calculate IM, a CSE may be unable to
verify whether the amounts of IM
or MSP and its counterparty, including without
limitation, terms addressing payment obligations,
netting of payments, events of default or other
termination events, calculation and netting of
obligations upon termination, valuation, and
dispute resolution. 17 CFR 23.504(b)(1).
93 7 U.S.C. 6s(j)(2).
94 See 17 CFR 23.600.
95 Exceedances are price movements above the
amount of IM computed using a risk-based model
that complies with the Commission’s regulations.
96 Letter 19–29 at 4.
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237
calculated by its counterparty are
sufficient. The Commission, however,
believes that Regulation 23.600
addresses this concern by requiring SDs
and MSPs to account for credit risk in
conducting their risk oversight and to
ensure compliance with the CFTC
margin requirements. In the case of a
CSE relying on new paragraph (a)(5), as
adopted, adequate risk oversight will
include steps by the CSE to monitor,
identify, and address potential shortfalls
in the amounts of IM generated by the
counterparty on whose IM model the
CSE is relying. While the Commission
does not prescribe the CSE’s oversight
process, it believes that a risk
management program that is unable to
identify or to address shortfalls in IM
will be insufficient to comply with
Regulation 23.600.
Moreover, Regulation 23.600 requires
SDs and MSPs to furnish to the
Commission risk exposure reports
setting forth credit risk exposures and
any other applicable risk exposures
relating to their swap activities. Here
again, the Commission believes that an
adequate risk exposure report pursuant
to Regulation 23.600 will require a CSE
to identify any adjustments and
enhancements to the amount of IM
calculated pursuant to the risk-based
model of its swap entity counterparty to
ensure the CSE’s collection of adequate
amounts of IM.
Commenters generally supported the
proposed amendment to Regulation
23.154(a) to permit CSEs to rely on their
swap entity counterparties’ risk-based
model calculation of IM.97 A commenter
stated that the proposed alternative
method of IM calculation would greatly
reduce the complexity and burden
associated with the implementation of
the margin requirements, in particular
in the last phases of compliance, thus
fostering greater liquidity and
contributing to lowering the hedging
costs of end-users.98 Another
commenter discussed the competitive
disadvantage that smaller SDs might
experience absent the alternative
method of IM calculation.99 This
commenter noted that large SDs may be
97 Associations 10/22/2020 Letter at 4; BPEC 10/
23/2020 Letter at 2; FIA 10/22/2020 Letter at 4;
STRM 10/23/2020 Letter at 1; Working Group 10/
22/2020 Letter at 3. In addition to the comments
addressing the alternative method of calculation of
IM, as proposed, two commenters requested
broadening the Proposal to permit CSEs to use the
risk-based model of calculation of IM of financial
end user counterparties. BPEC 10/23/2020 Letter at
9; Associations 10/22/2020 Letter at 4. In the
Commission’s view, this matter falls outside the
scope of the Proposal. Accordingly, the Commission
will not express a view or act on this matter.
98 BPEC 10/23/2020 Letter at 2.
99 FIA 10/22/2020 Letter at 5.
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disincentivized from trading uncleared
swaps with such SDs since doing so
would require large SDs to manage riskbased model calculations with some
entities and table-based calculation with
smaller SDs.100 Further, this commenter
stated that table-based IM calculations,
which do not take into account a firm’s
specific portfolio composition,
including diversification and hedges,
might produce more conservative
results requiring the posting and
collection of margin that is
inappropriately high given the actual
level of risk involved in a typical
transaction.101
Another commenter representing a
group of commercial firms in the energy
industry stated that allowing smaller
SDs to rely on their SD counterparties’
approved IM model calculation would
allow them to continue to play a crucial
role in certain discrete swaps markets,
like the energy swaps markets, in an
economic and cost effective manner.102
The commenter noted that the use of the
table-based method for the calculation
of IM by smaller SDs and IM modeling
by larger SDs resulted in a mismatch in
calculation methods that could lead to
worse pricing for smaller SDs, as the
table-based method would likely cause
their counterparties to post more IM
than they would under a model-based
approach, with the cost of that margin
being reflected in a higher price
provided to the smaller SDs.103
Notwithstanding these expressions of
support, many commenters objected to
the provision in the Proposal that limits
the application of the alternative
method of calculation of IM to
uncleared swaps entered into by a CSE
and a swap entity counterparty to hedge
the risk of customer-facing swaps
undertaken by the CSE, namely the
hedging limitation.104 A commenter
stated that it would be difficult, if not
impossible, to ensure that all
transactions to which the alternative
method of calculation could apply are
entered into for hedging purposes given
that the concept of hedging is difficult
to administer.105 The commenter
pointed to questions that may arise,
including what standard should be used
to determine whether a given swap is in
fact a ‘‘hedge.’’ 106 The commenter asked
whether each swap with a large SD must
be matched one-by-one with a swap
100 Id.
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101 Id.
at 5.
102 Working
Group 10/22/2020 Letter at 3.
See also STRM 10/23/2020 Letter at 2.
104 Associations 10/22/2020 Letter at 4; BPEC 10/
23/2020 Letter at 2; FIA 10/22/2020 Letter at 6;
Working Group 10/22/2020 Letter at 4.
105 BPEC 10/23/2020 Letter at 5.
106 Id. at 4.
103 Id.
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with a non-swap entity counterparty,107
and whether it would be feasible for an
entity to undertake portfolio hedging or
dynamic hedging in that context.108 The
commenter also asked what would
happen if the underlying swap
transaction with a non-swap entity
counterparty had been terminated, and
whether anticipatory hedges could be
counted as hedging.109 The commenter
noted that because the swaps markets
are dynamic, the character of swaps may
change over time and tagging a swap as
hedging and non-hedging may be
impractical.110 The commenter
concluded that given the uncertainty as
to what constitutes hedging, CSEs may
be reluctant to apply the alternative
method of calculation.111
Another commenter raised similar
concerns regarding difficulties in
applying the concept of hedging,
illustrated by the position limits rule
recently adopted after many attempts by
the Commission to implement the
Dodd-Frank Act, noting that at the core
of the rule lies the concept of
hedging.112 The commenter stated that
the concept of hedging is difficult to
quantify and that there are many
instances when ‘‘hedging’’ is virtually
indistinguishable from speculation.113
In the absence of a definition in the
Final Rule, the commenter stated,
counterparties could be left guessing
and may be reluctant to rely on the
alternative method of calculation for
fear of violating the hedging
limitation.114 A commenter also noted
that proposed Regulation 23.154(a)(5)
does not define the term hedging and
suggested replacing the term with the
phrase ‘‘hedge or mitigate commercial
risk.’’ 115
Another commenter stated that many
CSEs do not separate hedging from
dealing on a transaction-by-transaction
basis since CSEs often manage hedging
on a portfolio basis and, as a result, to
implement the hedging limitation, CSEs
would need to undertake a significant
amount of analysis and legal review to
make hedging determinations, making
the relief provided by the alternative
method of IM calculation
107 Id. See also STRM 10/23/2020 Letter at 4
(stating that classifying individual transactions with
other SDs as hedges and tying the hedges to
particular client-facing transactions would impose
a material compliance burden that could nullify any
benefit offered by the relief in proposed Regulation
23.154(a)(5)).
108 BPEC 10/23/2020 Letter at 4.
109 Id.
110 Id.
111 Id. at 5.
112 FIA 10/22/2020 Letter at 7.
113 Id.
114 Id.
115 STRM 10/23/2020 Letter at 4.
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impracticable.116 Similarly, another
commenter stated that if a CSE must be
able to demonstrate that each swap is a
hedge of a transaction with a non-SD,
then the CSE would not be able to
engage in portfolio hedging if the
portfolio includes risk related to a
speculative swap with another SD.117
Consequently, in the commenter’s view,
the hedging limitation would limit the
flexibility and efficacy of a CSE’s risk
management program.118
In line with these comments, another
commenter stated that if a commercial
CSE’s portfolio includes non-hedging
transactions, the opportunity to rely on
the IM calculations of its SD
counterparty may not be useful since
they would need to calculate separately
IM for the non-hedging transactions,
which would reduce the benefits of
netting or diversification offered by the
Standardized IM Model (‘‘SIMM’’).119
As a result, the commenter noted, the
amount of IM is likely to be higher,
disadvantaging commercial CSEs and
their SD counterparties in a way that
would not apply to CSE portfolios with
non-SDs.120
Commenters also noted that CSEs and
their counterparties typically transact
both hedging and dealing swaps under
a single ISDA Master Agreement or
credit support annex, with many
relationships put in place years ago, and
calculate IM at the relationship or
master contract level rather than the
transaction level.121 A commenter stated
that if CSEs are required to add
additional representations confirming
that a given transaction is a ‘‘hedging’’
transaction, the existing documentation
would need to be updated.122 The
commenter further stated that IM would
also need to be administered on the
basis of hedging and non-hedging
transactions which would make the
116 BPEC
10/23/2020 Letter at 5.
Group 10/22/2020 Letter at 4.
117 Working
118 Id.
119 Associations 10/22/2020 Letter at 4. This
commenter, along with another commenter, also
argued that SIMM, whose use must be approved by
a regulator prior to its utilization in the calculation
of regulatory IM, is a robust framework that obviates
the need for a safeguard, such as the hedging
limitation, to ensure the calculation of sufficient
amounts of IM. See Associations 10/22/2020 Letter
at 5; FIA 10/22/2020 Letter at 9. While recognizing
the value of standardization, the Commission
believes that SIMM on its own does not offer the
safeguards necessary to address the concerns raised
by the application of the alternative method of IM
calculation. That is because SIMM is a tool that
must be tailored to fit each firm’s portfolio and risk
profile, and must be subject to ongoing oversight to
ensure adequate calibration.
120 Associations 10/22/2020 Letter at 4.
121 See generally Associations 10/22/20 Letter at
4; BPEC 10/23/2020 Letter at 6; FIA 10/22/2020
Letter at 7–8.
122 FIA 10/22/2020 Letter at 8.
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netting of all transactions under a single
ISDA Master Agreement impossible.123
As a result, the implementation of the
hedging limitation would be extremely
complex and result in potentially added
operational risk, and certain swap entity
counterparties, given the added market
and bankruptcy risk, may shy away
from undertaking swaps with CSEs that
rely on the alternative method of
calculation of IM.124
A commenter also pointed out that
having to use the table-based method of
calculation for determining IM in some
circumstances and a counterparty’s IM
model in other circumstances would be
operationally complex for a CSE,
potentially to the point of being
unworkable, and may result in the CSE
being forced to choose between entering
into transactions in the inter-dealer
market or using the alternative method
of calculation.125 The commenter
further stated that the hedging
limitation could have negative
implications for liquidity in certain
markets, as some CSEs with unique
insights and risk profiles that are best
situated to assume customer risk from
other SDs may opt not to trade with
such SDs to avoid the burden associated
with the hedging limitation.126 Another
commenter stated that costs associated
with the hedging limitation, including
operational and documentation
burdens, could lead small CSEs to cease
providing risk mitigation services to
end-user counterparties, leaving endusers with unhedged risks.127
The concerns raised in the foregoing
comments hinge on two ideas: (i) CSEs
undertake hedging and speculative
swaps with swap entity counterparties;
and (ii) there is no clear standard for
determining which swaps are entered
into for hedging purposes. Commenters
assert that because CSEs undertake both
hedging and speculative swaps with
swap entity counterparties, the
implementation of the hedging
limitation would add further complexity
to the transactions and would be
burdensome as swaps are generally
managed on a portfolio basis and may
be under a single master netting
agreement or credit support annex,
making the separation of hedging and
non-hedging transactions challenging, if
not impossible.128
In response to these concerns, the
Commission acknowledges the potential
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123 Id.
124 See Associations 10/22/20 Letter at 4; BPEC
10/23/2020 Letter at 6; FIA 10/22/2020 Letter at 8.
125 Working Group 10/22/2020 Letter at 4.
126 Id. See also STRM 10/23/2020 Letter at 5.
127 FIA 10/22/2020 Letter at 8.
128 See BPEC 10/23/20 Letter at 6; FIA 10/22/2020
Letter at 8.
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burdens associated with the
implementation of the hedging
limitation. However, the Commission
points out that the proposed addition of
a method of calculation of IM that
would enable a CSE to rely on a swap
entity counterparty’s model calculation
of IM provides an alternative to the two
existing methods of calculation of IM.
The alternative method provides
flexibility to address a particular
situation illustrated in Letter 19–29. As
such, it is intended for use by CSEs
whose core swaps business is with nonswap entities but that occasionally enter
into swaps with a few swap entity
counterparties to offset the risk of
customer-facing swaps. Given the
limited swaps business with swap entity
counterparties, it is uneconomical for
the CSEs to develop, adopt, and
maintain a proprietary risk-based model
for the sole purpose of engaging such
counterparties.
In light of the intended use for the
alternative method of IM calculation,
the Commission incorporated in the
Proposal, in line with Letter 19–29, the
hedging limitation restricting the
application of the proposed alternative
method of IM calculation to uncleared
swaps entered into by a CSE to hedge
the CSE’s customer-facing risk. The
Commission noted in the Proposal that
the incorporation of the hedging
limitation would also have the effect of
limiting the use of the proposed method
of IM calculation. While the proposed
alternative method of IM calculation
was intended to make the alternative
method set forth in Letter 19–29 more
widely available, the Commission stated
that its application raised some
concerns that would be mitigated, in
part, by limiting the use of the
alternative method of calculation to
hedging transactions. More specifically,
the Commission expressed the concern
that in calculating the amount of IM to
be used by the CSE to determine the
amount to be collected from the swap
entity counterparty, the swap entity
counterparty could miscalculate the
amount of IM or may be motivated to
underestimate the amount of IM in
order to post lesser IM amounts to the
CSE. In turn, the CSE, without a
proprietary model to calculate IM,
would have no meaningful way to verify
whether the amounts generated by the
swap entity counterparty were correct or
to contest the amounts, potentially
resulting in the CSE collecting
insufficient amounts of margin to
mitigate the risk of its swaps.
The Commission notes that there are
other safeguards in the Commission’s
regulations, such as risk management
requirements applicable to both CSEs
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239
and their swap entity counterparties,
that could address the potential
miscalculation or underestimation of
IM; however, the Commission believes
that these safeguards do not obviate the
need for the hedging limitation. Rather,
in the Commission’s view, the hedging
limitation will work together with such
other measures to provide effective
protections to address the concerns
raised by the application of the
alternative method of calculation of IM.
Accordingly, the Commission has
decided to retain the hedging limitation.
The Commission expects that
counterparties that engage in both
hedging and speculative transactions
would engage in such a small number
of speculative transactions that the
complexity and burden of separating
speculative and hedging transactions
and operationally implementing the
hedging limitation would be rather low.
On the other hand, if the speculative
activity between the CSE and the swap
entity counterparty is so robust as to
complicate the use of the alternative
method of calculation, the CSE should
be able to carry out its own calculation
of IM by either adopting a proprietary
model for the calculation of margin or
using the table-based method of
calculation. It follows that if the CSE
adopts a proprietary model of
calculation for its speculative swaps, the
CSE should be likewise able to adopt a
model or use the same model for
calculating IM for its hedging swaps,
thus obviating the need to rely on its
counterparty’s IM calculation.
Regarding comments asserting a lack
of a clear standard to differentiate
between hedging and non-hedging
swaps, the Commission believes that the
existing standard set out in section
4a(c)(2)(B) of the CEA 129 to define
‘‘bona fide hedging transaction or
position’’ provides a suitable framework
for determining which swaps are hedges
for the purpose of applying the
alternative method of calculation. By
referring to section 4a(c)(2)(B) for this
purpose, the Commission is setting forth
a principles-based approach, not
requiring strict adherence to all the
terms of the statute, as the statute
addresses physical markets and
products not pertinent in this context,
and pertains to issues (i.e., speculation
in the physical markets) outside the
scope of this Final Rule. Key principles
derived from section 4a(c)(2)(B) that
should be taken into account in
determining whether a swap between a
CSE and a swap entity counterparty has
been entered into for hedging purposes
include: (a) Whether the swap reduces
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risk attendant to another swap
undertaken between the CSE and a nonswap entity counterparty; and (b)
whether such other swap (i) was
executed by the non-swap entity
counterparty as a substitute for
transactions made or to be made, or for
positions taken or to be taken at a later
time, in a commercial enterprise; (ii) is
economically appropriate to the
reduction of risk in the conduct and
management by the non-swap entity
counterparty of a commercial enterprise;
and (iii) arises from the potential change
in value of the non-swap entity
counterparty’s assets, liability or
services. To determine whether the
criteria in (b) above have been satisfied,
the CSE, in accordance with Regulation
23.402(d), would be able to rely on a
written representation from the nonswap entity counterparty, unless the
CSE has information that would cause a
reasonable person to question the
accuracy of the representation.130
By using this framework, the
Commission believes that many of the
questions raised by the commenters in
connection with the application of the
hedging limitation would be addressed.
For example, commenters asked
whether swaps entered into by a CSE
and an end-user and the offsetting
swaps undertaken by the CSE and a
swap entity counterparty must match
one-to-one.131 The framework provides
some flexibility permitting CSEs as part
of the hedging strategy to match a set of
customer-facing swaps with one or more
hedging swaps undertaken with a swap
entity counterparty. Commenters also
asked what would happen if the
customer-facing swaps were terminated,
and whether anticipatory hedging
would be deemed hedging in the
context of the alternative method of
calculation.132 Consistent with the
framework set forth above, swaps
undertaken by a CSE and a swap entity
counterparty as part of a hedging
strategy to offset the risk of customer130 17 CFR 23.402(d) (providing that an SD or
MSP may rely on the written representations of a
counterparty to satisfy its due diligence
requirements under subpart H of Part 23 of the
Commission’s regulations, which sets forth business
conduct standards for SDs and MSPs to be applied
in their dealings with counterparties). See also
Position Limits for Derivatives (approved Oct. 15,
2020) (defining ‘‘bona fide hedging transaction or
position’’ to include pass-through swaps, as
described in section 4a(c)(2)(B) of the CEA,
undertaken to offset the risk of other swaps entered
into to hedge commercial risk, and noting that a
counterparty may rely on its counterparty’s written
representations confirming that such counterparty
is executing the pass-through swap to hedge
another swap undertaken to offset commercial risk).
131 FIA 10/22/2020 Letter at 7; BPEC 10/23/2020
Letter at 4.
132 Id.
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facing swaps—including swaps that are
ultimately terminated and swaps that
may be entered into in the future—
would be deemed to be hedges for the
purposes of the alternative method of
IM calculation.
The Commission confirms, consistent
with the statutory framework set forth in
section 4a(c)(2)(B), that both the
underlying swap between the CSE and
the end-user counterparty, and the
offsetting swap between the CSE and the
swap entity counterparty must be
entered into for hedging purposes. More
specifically, the swap between the CSE
and the end-user counterparty must be
entered into to hedge risk attendant in
a commercial enterprise. In connection
with this position, a commenter stated
that the burden of compliance with the
hedging limitation would be borne not
only by the CSE and the swap entity
counterparty, but also by end-users that
are counterparties to the CSE, as they
too would need to make an assessment
of whether their swaps are for
‘‘hedging’’ purposes and would need to
update their documentation
accordingly.133 Given that the
alternative method of calculation is
expected to be used in the limited
circumstances described herein, the
Commission believes that the chance
that end-users may be burdened would
be greatly reduced.
A commenter also stated that the
hedging limitation may not only burden
small CSEs but also their swap entity
counterparties.134 Another commenter
noted that a swap entity counterparty
may be reluctant to trade with a CSE
fearing the CSE’s misrepresentation or
mischaracterization of its swaps as
hedges, which could lead the swap
entity counterparty to violate its
obligations under the CFTC Margin
Rule.135 In this regard, the Commission
notes that Regulation 23.402(d) permits
a swap entity counterparty with respect
to swaps with a CSE to rely on the CSE’s
representations to satisfy its due
diligence obligations unless the swap
entity counterparty has any reason to
question the CSE’s representations.136
The Commission believes that
Regulation 23.402(d) mitigates swap
entity counterparties’ concerns
regarding a CSE’s potential
misrepresentation or
133 FIA
10/22/2020 Letter at 8.
10/23/2020 Letter at 5.
135 FIA 10/22/2020 Letter at 8.
136 See 17 CFR 23.402(d) (allowing SDs or MSPs
to rely on the written representations of a
counterparty to satisfy its due diligence
requirements concerning swaps entered into with
the counterparty, unless the SD or MSP has
information that would cause a reasonable person
to question the accuracy of the representation).
134 BPEC
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mischaracterization of its swaps as
hedges.
Two commenters suggested replacing
the hedging limitation with a $750
billion threshold, whereby CSEs with
AANA below the threshold would be
able to use the alternative method of IM
calculation without imposing
conditions on the business of CSEs that
could have adverse market impact.137 In
the Commission’s view, another
threshold to determine the applicability
of the CFTC’s margin requirements
would add further complexity to the
rules. In addition, the Commission
believes that the hedging limitation as
adopted and further discussed above is
adequately designed to advance the
Commission’s goals.
III. Administrative Compliance
A. Regulatory Flexibility Act
The Regulatory Flexibility Act
(‘‘RFA’’) requires Federal agencies to
consider whether the rules they propose
will have a significant economic impact
on a substantial number of small
entities.138 As discussed in the
Proposal, the amendments being
adopted herein only affect SDs and
MSPs that are subject to the CFTC
Margin Rule and their covered
counterparties, all of which are required
to be eligible contract participants
(‘‘ECPs’’).139 The Commission has
previously determined that SDs, MSPs,
and ECPs are not small entities for
purposes of the RFA.140 Therefore, the
Commission believes that the Final Rule
will not have a significant economic
impact on a substantial number of small
entities, as defined in the RFA.
Accordingly, the Chairman, on behalf
of the Commission, hereby certifies
pursuant to 5 U.S.C. 605(b) that the
Final Rule will not have a significant
economic impact on a substantial
number of small entities.
B. Paperwork Reduction Act
The Paperwork Reduction Act of 1995
(‘‘PRA’’) 141 imposes certain
requirements on Federal agencies,
including the Commission, in
connection with their conducting or
sponsoring any collection of
information, as defined by the PRA. The
137 STRM 10/23/2020 Letter at 5; Working Group
10/23/2020 Letter at 5.
138 5 U.S.C. 601 et seq.
139 Each counterparty to an uncleared swap must
be an ECP, as the term is defined in section 1a(18)
of the CEA, 7 U.S.C. 1a(18) and Regulation 1.3, 17
CFR 1.3. See 7 U.S.C. 2(e).
140 See Registration of Swap Dealers and Major
Swap Participants, 77 FR 2613, 2620 (Jan. 19, 2012)
(SDs and MSPs) and Opting Out of Segregation, 66
FR 20740, 20743 (April 25, 2001) (ECPs).
141 44 U.S.C. 3501 et seq.
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Commission may not conduct or
sponsor, and a person is not required to
respond to, a collection of information
unless it displays a currently valid
Office of Management and Budget
control number. The Final Rule, as
adopted, contains no requirements
subject to the PRA.
C. Cost-Benefit Considerations
Section 15(a) of the CEA requires the
Commission to consider the costs and
benefits of its actions before
promulgating a regulation under the
CEA.142 Section 15(a) further specifies
that the costs and benefits shall be
evaluated in light of the following five
broad areas of market and public
concern: (1) Protection of market
participants and the public; (2)
efficiency, competitiveness and
financial integrity of futures markets; (3)
price discovery; (4) sound risk
management practices; and (5) other
public interest considerations.
The Commission is amending the
CFTC Margin Rule to revise the method
for calculating AANA for determining
whether an FEU has MSE and the
timing of compliance with the IM
requirements after the end of the phased
compliance schedule (‘‘timing of postphase-in compliance’’). These
amendments align the CFTC Margin
Rule with the BCBS/IOSCO Framework
with respect to these matters. The
Commission is also amending
Regulation 23.154(a), consistent with
Letter 19–29, to allow CSEs to use the
risk-based model calculation of IM of a
counterparty that is a swap entity.143
With respect to these rule
amendments, the Commission
considered the costs and benefits
resulting from its discretionary
determinations with respect to section
15(a) considerations, and sought
comments from interested persons
regarding the nature and extent of such
costs and benefits. In response to its
request for comment, as noted earlier,
the Commission received nine comment
letters.144 All the comment letters
generally expressed support for the
Proposal.145 One commenter noted that
it reflects the realities of the
142 7
U.S.C. 19(a).
the definition of the term ‘‘swap entity,’’
see supra note 42.
144 See ACLI 10/23/2020 Letter; Associations 10/
22/2020 Letter; BPEC 10/23/2020 Letter; FIA 10/22/
2020 Letter; ICI 10/22/2020 Letter; MFA 10/22/2020
Letter; STRM 10/23/2020 Letter; SIFMA AMG 10/
22/2020 Letter; Working Group 10/22/2020 Letter.
145 See ACLI 10/23/2020 Letter at 1; Associations
10/22/2020 Letter at 1; BPEC 10/23/2020 Letter at
2; FIA 10/22/2020 Letter at 2–3; ICI 10/22/2020
Letter at 1; MFA 10/22/2020 Letter at 1; STRM 10/
23/2020 Letter at 1; SIFMA AMG 10/22/2020 Letter
at 1; Working Group 10/22/2020 Letter at 3.
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marketplace and further aligns the U.S.
regulations with the global regulators.146
Other commenters stated that the
Proposal would enable the
implementation of the IM requirements
in a practical and efficient manner and
reduce the complexity and burden
associated with the implementation of
those requirements.147 The commenters
added that the Proposal would foster
greater liquidity and contribute to the
lowering of hedging costs, particularly
in the last phases of the compliance
schedule.148
The baseline against which the
benefits and costs associated with the
Final Rule is compared is the uncleared
swaps markets as they exist today and
the currently applicable timing for
compliance with the IM requirements
after the expiration of the phased
compliance schedule. Concerning the
amendment to Regulation 23.154(a), the
Commission believes that to the extent
market participants may have relied on
Letter 19–29, the actual costs and
benefits of the amendment, as realized
by the market, may not be as significant
at a practical level. With respect to the
amendments to align aspects of the
CFTC Margin Rule with the BCBS/
IOSCO Framework, the Commission
notes that the Dodd-Frank Act calls on
the CFTC to ‘‘consult and coordinate on
the establishment of consistent
international standards’’ with respect to
the regulation of swaps.149 The
amendments therefore advance the
Congressional direction towards
harmonization of the CFTC’s
requirements with international
standards, thereby removing a
regulatory impediment that might
hinder the competitiveness of the U.S.
swaps industry.150
The Commission notes that the
consideration of costs and benefits
below is based on the understanding
that the markets function
internationally, with many transactions
146 See
ACLI 10/23/2020 Letter.
generally BPEC 10/23/2020 Letter; MFA
10/22/2020 Letter.
148 Id.
149 See supra note 79.
150 A starting point in determining the potential
benefit of alignment with the BCBS/IOSCO
Framework is various statutory provisions where
the U.S. Congress has called on the CFTC and other
financial regulators to align U.S. regulatory
requirements with international standards. For
example, the Commodity Futures Modernization
Act of 2000 (‘‘CFMA’’) focused on the potential
threat to competitiveness of the U.S. industry where
there is divergence with international standards. In
particular, section 126 of the CFMA provides that
regulatory impediments to the operation of global
business interests can compromise the
competitiveness of United States businesses. See
CFMA section 126(a), Appendix E of Pub. L. 106–
554, 114 Stat. 2763 (2000).
147 See
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241
involving U.S. firms taking place across
international boundaries; with some
Commission registrants being organized
outside of the United States; with
leading industry members typically
conducting operations both within and
outside the United States; and with
industry members commonly following
substantially similar business practices
wherever located. Where the
Commission does not specifically refer
to matters of location, the following
discussion of costs and benefits refers to
the effects of the Final Rule on all
activity subject to the Final Rule,
whether by virtue of the activity’s
physical location in the United States or
by virtue of the activity’s connection
with activities in, or effect on, U.S.
commerce under section 2(i) of the
CEA.151
1. Benefits
By harmonizing the CFTC’s method
for calculating AANA for determining
MSE and the timing of post-phase-in
compliance with the BCBS/IOSCO
Framework, the Final Rule will create a
benefit because it will reduce
complexity—for example, the monthend AANA calculation method being
adopted will require consideration of
only three observation dates rather than
daily AANA averaging over the threemonth calculation period—and the
potential for confusion in the
application of the margin requirements.
Some entities will no longer need to
undertake separate AANA calculations
using different calculation periods, nor
will they need to conform to two
separate compliance timings, varying
according to the location of their swap
counterparties and jurisdictional
requirements applicable to the
counterparties.
The Final Rule will affect FEUs with
AANA between $8 billion and $50
billion that come into the scope of
compliance with the IM requirements
under the CFTC Margin Rule in the last
compliance phase beginning on
September 1, 2022, as well as those
entities that come into scope after the
end of the last compliance phase. The
Commission believes that the Final Rule
will benefit some of these entities,
which, given their level of swap
activity, pose a lower risk to the
uncleared swaps market and the U.S.
financial system in general than entities
that came into scope in earlier phases.
The OCE has estimated that there are
approximately 514 of such entities
representing 4% of total AANA across
151 7
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all phases.152 This means that the Final
Rule addresses entities that tend to
engage in less uncleared swap trading
activity and, and in the aggregate, pose
less systemic risk than entities in
previous phases. Because these entities
are smaller, they presumably have fewer
resources to devote to IM compliance
and hence will benefit from the
alignment of the method of calculation
of AANA across jurisdictions without
contributing substantially to systemic
risk.
For entities with AANA between $8
billion and $50 billion that will begin
collecting IM on September 1, 2022,
moving the calculation period from
June, July, and August 2021 to March,
April, and May 2022 will better align
with current practices. While the
Commission cannot anticipate exactly
how the June–August 2021 period will
differ from the March–May 2022 period,
based on comparable past experience,
the OCE estimates that approximately
75–100 entities will come into scope,
and a similar number will fall below the
threshold by virtue of moving the
calculation period. The adjusted
calculation period will reduce the
regulatory burden for firms that have
reduced their MSE below the $8 billion
threshold while requiring the collection
of margin for those firms that have
increased their swaps business above
the threshold. While aggregate AANA
for firms that fall into or out of scope is
small relative to the overall market (less
than one percent of total aggregate
AANA), moving the calculation period
close to the compliance date may have
a significant impact on entities that have
reduced their MSE.
The Commission also notes that the
benefits of alignment with the BCBS/
IOSCO Framework will continue to
accrue in future years, as the
determination of MSE for an FEU under
the CFTC Margin Rule is an annual
undertaking, triggered by the entry into
an uncleared swap between the FEU
and a CSE counterparty and the need to
determine whether the FEU has MSE,
which triggers the application of the IM
requirements and the exchange of
regulatory IM between a CSE and an
FEU for their uncleared swap
transactions.
With respect to the amendment to
Regulation 23.154(a), the Commission
believes that the uncleared swap
markets will benefit from the extension
152 Using March-May of 2020 as the calculation
period. The methodology for calculating AANA is
described in Richard Haynes, Madison Lau, & Bruce
Tuckman, Initial Margin Phase 5, at 4 (Oct. 24,
2018), https://www.cftc.gov/sites/default/files/
About/Economic%20Analysis/Initial%20Margin
%20Phase%205%20v5_ada.pdf.
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of the targeted relief provided to Cargill,
the requester in Letter 19–29, to a wider
group of CSEs with similar unique
swaps business models. In taking a noaction position, MPD took account of
Cargill’s representation that its swap
trading activity primarily involved
physical agricultural commodities and
certain other asset classes and that it
‘‘may maintain positions that require
collection of IM from SDs.’’ Cargill
further stated that given the highly
specialized and discrete nature of its
swaps business, risk-based modeling
would impose a disproportionate
burden.
The more widespread availability of
the alternative method of calculation of
IM provided by Regulation 23.154(a), as
amended by the Final Rule, may
incentivize some market participants to
expand their swaps business. In
particular, given that certain market
participants will have the option to
forgo the cost of risk-based modeling,
this potential reduction in compliance
costs may encourage certain entities to
increase their swaps trading. By
increasing the pool of potential swap
counterparties, the Final Rule could
enhance competition, increase overall
liquidity, and facilitate price discovery
in the uncleared swaps markets.
2. Costs
While the Final Rule will have the
effect of creating efficiencies for market
participants, the Commission
acknowledges that the rule changes
being adopted will also give rise to some
costs. Among other things, the change of
the CFTC’s AANA calculation period for
determining MSE to align it with BCBS/
IOSCO’s AANA calculation period will
reduce the time frame for determining
whether an FEU is subject to the IM
requirements and for preparing for
compliance with the requirements
during the final phase-in period of 2022.
Under the current margin
requirements, in the period leading to
the final phase-in date of September 1,
2022, FEUs would have a full year to
prepare, as MSE for an FEU would be
determined using the AANA for June,
July and August of the prior year.
However, under the Final Rule, entities
will have only a three-month advance
notice in 2022, as AANA will be
calculated using the March, April and
May period of that year. Entities will
have a shorter time frame to engage in
preparations to comply with IM
requirements, including, among other
things, procuring rule-compliant
documentation, establishing processes
for the exchange of regulatory IM, and
setting up IM custodial arrangements.
Because the Final Rule aligns the AANA
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calculation for determining MSE with
BCBS/IOSCO’s approach and the
compliance date remains unchanged,
the Commission believes that the cost
will be mitigated. In particular, the
Commission notes that commenters
confirmed,153 as reported in the Margin
Subcommittee Report, that the
differences in the U.S. regulations could
create complexity and confusion and
lead to additional effort, cost and
compliance challenges for smaller
market participants that are generally
subject to margin requirements in
multiple global jurisdictions.154
The Commission further notes that
the amendment to the timing of postphase-in compliance, as proposed, will
defer compliance with the IM
requirements with respect to uncleared
swaps entered into by a CSE with an
FEU that comes into the scope of IM
compliance after the end of the last
compliance phase. Under the current
rule being amended, FEUs with MSE as
measured in June, July, and August
2022 would have come into the scope of
compliance post-phase-in beginning on
January 1, 2023. On the other hand,
under the Final Rule, FEUs with MSE as
measured in March, April, and May
2023 will come into scope, post-phasein compliance, beginning on September
1, 2023. As a result, for FEUs with MSE
in both periods, less collateral for
uncleared swaps may be collected given
that the Final Rule changes the
beginning of post-phase-in compliance
from January 1, 2023, to September 1,
2023, rendering uncleared swap
positions entered into between January
1, 2023, and September 1, 2023, riskier,
as no IM will be required to be collected
during that period, which could
increase the risk of contagion and the
potential for systemic risk. The
Commission, however, notes that under
the Final Rule, a CSE may be required
to exchange IM with an FEU that comes
into scope in the last phase of
compliance beginning on September 1,
2022, but falls below the MSE level by
January 1, 2023, for nine months longer
than otherwise would have been the
case, as post-phase-in, no assessment of
MSE status will be required until
September 1, 2023.
With respect to the adoption of a
month-end AANA methodology for the
calculation of AANA for determining
MSE, as proposed, the Commission
acknowledges that there are potential
costs. The utilization of month-end
153 See ACLI 10/23/2020 Letter at 2; Associations
10/22/2020 Letter at 3; FIA 10/22/2020 Letter at 4;
SIFMA AMG 10/22/2020 Letter at 3; Working
Group 10/22/2020 Letter at 2.
154 Margin Subcommittee Report at 49.
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AANA could result in an AANA
calculation that is not representative of
a market participant’s participation in
the swaps markets. As previously
discussed, an AANA calculation based
on month-end AANA may result in the
exclusion or undercounting of certain
financial contracts that are required to
be included in the calculation (e.g.,
uncleared swaps, uncleared securitybased swaps, foreign exchange forwards,
or foreign exchange swaps) because of
certain combinations of tenure and time
of execution, such as those often present
in some intra-month natural gas and
electricity swaps.155 The Commission
also notes the potential that market
participants might ‘‘window dress’’
their exposures to avoid MSE status and
compliance with the CFTC’s margin
requirements. At the same time, it is
possible that the month-end
methodology, which uses only three
data points, could result in some
entities having an AANA calculation on
the three end-of-month dates that is
uncharacteristically high relative to
their typical positions.
If products are excluded from the
AANA calculation, or if exposures are
‘‘window dressed,’’ the month-end
calculation may have the effect of
deferring the time by which market
participants meet the MSE classification
resulting in additional swaps between
market participants and CSEs being
deemed legacy swaps that are not
subject to the IM requirements.156 This
may increase the level of counterparty
credit risk to the financial system. While
potentially meaningful, this risk will be
mitigated because the legacy swap
portfolios will be entered into with
FEUs that engage in lower levels of
notional trading.
In addition, many larger SDs are
under the jurisdiction of the U.S.
prudential regulators, and these entities
and their counterparties will apparently
be required to continue to use the
current AANA calculation methodology.
Entities that trade with both SDs that are
under the jurisdiction of the U.S.
prudential regulators and CSEs that are
under the CFTC’s jurisdiction will be
required to undertake separate AANA
calculations using different calculation
periods, varying according to the
regulator of their swap counterparty.
Hence, entities that trade in other
jurisdictions and that trade with SDs
subject to the prudential regulators’
jurisdiction will be required to continue
to undertake separate AANA
calculations using different calculation
155 See
156 For
supra note 59.
explanation of legacy swaps, see supra
note 49.
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periods and two separate compliance
timings. In fact, an entity that only
trades in the U.S. will now be required
to conduct separate AANA calculations
using different calculation periods and
timings. While we received no
quantification of the number of such
entities, SDs regulated by U.S.
prudential regulators represent a sizable
share of swap trading.
Recognizing the potential for costs to
increase for this reason, all of the
comments received by the Commission
noted the benefits of alignment with the
BCBS/IOSCO Framework, and none
mentioned the costs associated with any
potential misalignment with the U.S.
prudential regulators. Further, some
commenters stated that the CFTC
should proceed with the amendments
even if the prudential regulators do not
make corresponding changes to their
margin rules.157
In addition, the Commission notes
that, in the aforementioned OCE
exercise utilizing a sample of days, the
OCE estimated that calculations based
on end-of-month AANA would yield
fairly similar results as the calculations
based on the current daily average
AANA approach (setting aside the
window dressing issue). Based on 2020
swap data, the OCE estimated that
approximately 492 entities of the 514
entities that would have come into
scope in the last phase of the phased
compliance schedule, based on the
existing methodology, would also come
into scope based on the methodology
being adopted under the Final Rule. Put
differently, all but 22 of the entities that
would be above MSE under the existing
methodology would also be above MSE
under the Final Rule’s methodology. In
addition, there are 20 entities that
would be in scope under the Final
Rule’s methodology, but would not have
been under the existing methodology, so
that the aggregate number of entities
differs only by two. In aggregate, the two
methodologies capture quite similar sets
of entities. In addition, the entities that
fall out of scope when one changes
methodology tend to be among the
smallest of entities coming into scope in
the last phase of compliance. That is,
entities that would have been in-scope
under the current methodology but not
the Final Rule’s methodology average
$6.95 billion in AANA, compared to $20
billion for all entities coming into scope
in the last phase of compliance.158
Taking account of the relatively small
percentage of aggregate AANA
represented by FEUs that will have MSE
157 SIFMA AMG 10/22/2020 Letter at 3; Working
Group 10/22/2020 Letter at 2.
158 See supra note 60.
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243
for the first time in the near future, and
thus be subject to the Commission’s IM
requirements under the Final Rule, the
Commission believes that the potential
exclusion of certain financial products
in determining MSE will have a limited
impact on the effectiveness of the CFTC
Margin Rule. In addition, with respect
to the potential that a market participant
might ‘‘window dress’’ its exposure, the
Commission believes that the antievasion language being incorporated
into the rule text by this Final Rule,
discussed in more detail above, would
reduce the risk that swap exposures or
positions might be manipulated to
evade the CFTC’s IM requirements. The
Commission also notes that it has
authority, including anti-fraud authority
under section 4b of the CEA,159 to take
appropriate enforcement actions against
any market participant that may engage
in deceptive conduct with respect to the
AANA calculation, and that CSEs,
under the Commission’s regulations,
must have written policies and
procedures in place to prevent evasion
or the facilitation of an evasion by an
FEU counterparty.160
Roughly 514 entities, as estimated by
the OCE, will come into the scope of the
IM requirements beginning on
September 1, 2022, and will be affected
by the Final Rule. In advance of the
September 1, 2022 compliance date,
many of these entities may have
engaged in planning and preparations
relating to the exchange of regulatory
IM. With the revision of the AANA
method of calculation, these entities
may need to adjust their systems to
reflect changes in the calculation and
update related financial infrastructure
arrangements. However, the
Commission believes that the resulting
increased costs will be negligible, and
the amendments being adopted will
likely be cost-reducing for those
impacted firms.
Regarding the amendment to
Regulation 23.154(a), there may be
associated costs, as CSEs will be able to
rely on the risk-based model calculation
of IM computed by a swap entity
counterparty. The safeguard provided
by the requirement that both the CSE
and its SD counterparty maintain a riskbased IM model for any swap
transaction for which they do not use
the table-based method to calculate IM
will be eliminated. A CSE that relies on
a counterparty’s risk-based model
calculations may forgo the adoption of
a risk-based model and thus avoid the
rigorous Commission requirements
159 7
U.S.C. 6b.
17 CFR 23.402(a)(ii).
160 See
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relating to risk-based modeling,161
which may undercut the effectiveness of
the CSE’s risk oversight.162
In addition, the safeguard of private
market discipline that is inherent in
having each counterparty develop its
own IM model, and therefore the ability
for the parties to scrutinize each other’s
IM model and output, will not be
present given that under the Final Rule,
a CSE will be permitted to rely on the
risk-based model calculation of a swap
entity counterparty. As such, there is
the potential that insufficient amounts
of IM will be generated by the swap
entity counterparty, which may be
attributable to a deficiency in the model
or the fact that the swap entity may be
inherently conflicted and interested in
generating lower IM collectable by the
CSE.163 Without a model, the CSE will
lack adequate means to verify the
amount of IM produced by the swap
entity counterparty and will not be
capable to contest it. As a result,
insufficient amounts of IM may be
collected by the CSE to protect itself
against the risk of default by the swap
entity counterparty, increasing the risk
of contagion and the potential for
systemic risk.
The Commission, however, believes
that these costs are mitigated by the
Final Rule, because it reflects the
narrow terms of Letter 19–29, which
extends no-action relief only with
respect to uncleared swaps entered into
for the purpose of hedging. In addition,
the Commission notes that there are
other requirements in the Commission’s
regulations that address the monitoring
of exposures and swap risk.
3. Section 15(a) Considerations
In light of the foregoing, the CFTC has
evaluated the costs and benefits of the
Final Rule pursuant to the five
considerations identified in section
15(a) of the CEA as follows:
(a) Protection of Market Participants and
the Public
The Final Rule aligns the CFTC’s
method for calculating AANA for
determining MSE and the timing of
post-phase-in compliance with the
BCBS/IOSCO Framework. By aligning
these aspects of the CFTC Margin Rule
with the international standard, the
Final Rule will reduce the potential for
161 See
generally 17 CFR 23.154(b).
cf. 17 CFR 23.600 (requiring SDs and
MSPs to establish a robust risk management
program for the monitoring and management of
their swap activities).
163 But cf. 17 CFR 23.600 (requiring swap entities
to have a risk management program for the
management and monitoring of risk associated with
their swaps, which may reduce the risk that such
entities may act in a conflicted manner).
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162 But
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complexity and confusion that can
result from using different AANA
calculation methods and different
compliance schedules for some market
participants that may be subject to
margin requirements in multiple
jurisdictions, which could result in
errors in determining whether a
particular entity comes within the scope
of the CFTC Margin Rule, and, in turn,
the failure to exchange requisite margin
if the entity is mistakenly determined to
be out of scope.
The Final Rule may result in FEUs
having less time between the calculation
of AANA to determine whether they
reach the MSE level, and the date on
which CSEs would be required to
exchange IM with the FEUs should the
FEUs reach the MSE level. This may
make it more difficult for such FEUs to
prepare for the exchange of IM for their
uncleared swaps with CSEs and to
timely post IM, increasing the risk of
their swap positions.
More specifically, under the existing
CFTC Margin Rule, beginning on
September 1, 2022, FEUs would have
been required to look back to the JuneAugust 2021 period to determine
whether they have MSE and come
within the scope of the IM
requirements. The firms would have
had at least twelve months to engage in
preparations for the exchange of
regulatory IM, by, among other things,
procuring rule-compliant
documentation, establishing processes
and systems for the calculation,
collection and posting of IM collateral,
and setting up custodial arrangements.
Under the Final Rule, which changes
the AANA calculation period for
determining MSE to March-May of the
current year, such firms will have only
a three-month window to engage in
preparations to exchange IM.
Nevertheless, the Commission notes
that, under the current rule being
amended, after the end of the phased
compliance schedule, firms would have
had only four months in subsequent
years between calculation and required
compliance since the calculation period
for determining MSE status would have
been June through August of the prior
year, with compliance starting January 1
of the following year. In addition,
because the Final Rule requires the
averaging of three month-end dates
rather than all business days during the
three-month calculation period, the
potential burdens of a shorter
preparatory period may be offset by the
adoption of the BCBS/IOSCO
Framework’s less onerous calculation
method for some entities.
Moreover, the Final Rule shifts the
timing of post-phase-in compliance to
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September 1 of each year. As such, some
entities that otherwise would have been
required to exchange IM beginning
January 1, 2023, will be able to defer
compliance to September 1, 2023.164 As
a result, less collateral for uncleared
swaps may be collected between
January 1, 2023, and September 1, 2023,
rendering the parties’ positions riskier
during that nine-month period, which
could raise the risk of contagion and
increase the potential for systemic risk.
Firms that would have fallen out of
scope by January 1, 2023, will also be
subject to compliance for an additional
nine months.
The amendment to Regulation
23.154(a), as proposed, will allow a CSE
to use the risk-based model calculation
of IM of a counterparty that is a swap
entity. As a result, the CSE may forgo
the adoption of a risk-based model,
avoiding the cost and burden associated
with the development and maintenance
of a model. Without a model, the CSE
may not be able to challenge the
amounts generated by the swap entity
counterparty, which may be insufficient
because of model error or malfunction
or because the swap entity, given the
inherent conflict of interest, may be
biased in favor of calculating and
posting lower amounts of IM to the CSE.
Hence, the CSE may collect insufficient
amounts of IM to offset the risk of
counterparty default, increasing the risk
of contagion and the potential for
systemic risk.
The Commission believes that these
risks may be mitigated by the Final
Rule, which is narrowly tailored to
permit reliance on a swap entity
counterparty’s risk-based model
calculation only with respect to
uncleared swaps entered into for the
purpose of hedging. In addition,
Regulation 23.600, which requires SDs
and MSPs to adopt a robust risk
management program for the monitoring
and management of risk related to their
swap activities, imposes an additional
safeguard by requiring the monitoring of
exposures and swap risk.
164 This would apply to entities that meet the
MSE level based on their AANA during the June,
July, and August 2022 period, and continue to have
MSE in the March, April, and May 2023 period. Of
course, changing the calculation period to the
March, April, and May 2023 period may lead to the
inclusion of entities whose AANA is below MSE in
the June, July, and August 2022 period, but rises to
the MSE level or above by the March, April, and
May 2023 period. The OCE estimated that
approximately 75–100 entities typically move from
one side of the MSE threshold to the other between
measurement periods.
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(b) Efficiency, Competitiveness, and
Financial Integrity of Markets
The Final Rule aligns the CFTC
Margin Rule’s AANA calculation
method for determining MSE and the
timing of post-phase-in compliance with
the BCBS/IOSCO Framework. The Final
Rule will thus reduce the need, at least
for entities not also undertaking swaps
with U.S. prudentially regulated SDs, to
undertake separate AANA calculations
accounting for different calculation
methods and to conform to separate
compliance timings, varying according
to the location of swap counterparties
and jurisdictional requirements
applicable to the counterparties.165 As
such, the Final Rule may promote
market efficiency and may level the
playing field for CSEs, fostering
competitiveness and reducing the
incentive for market participants to
engage in regulatory arbitrage by
identifying more accommodating
margin frameworks.
The amendment to Regulation
23.154(a), as proposed, will allow CSEs
to rely on a swap entity counterparty’s
IM risk-based model calculation. This
will generally result in lower IM than if
IM were calculated using the
standardized IM table. As such, the
amendment may allow CSEs to more
effectively compete in providing swaps
to end-users. The Final Rule may thus
promote efficiency in the uncleared
swaps market by increasing the pool of
swap counterparties and fostering
competition.
Potential costs may arise because,
without its own model, a CSE may lack
effective means to verify its
counterparty’s IM calculations. As a
result, if there are shortfalls in the
output, the CSE may collect less IM
collateral to offset the risk of default by
the counterparty, which could increase
the risk of contagion, threatening the
integrity of the U.S. financial markets.
The Commission, however, believes that
the Final Rule is sufficiently targeted to
mitigate these risks. The Final Rule will
apply only when uncleared swaps are
entered into for hedging, thus limiting
widespread use and the potential for
uncollateralized uncleared swap risk.
(c) Price Discovery
By aligning the CFTC Margin Rule
and the BCBS/IOSCO Framework with
respect to the AANA calculation
method for determining MSE and the
post-phase-in compliance timing, the
Final Rule may reduce the burden and
confusion inherent in implementing
165 As noted above, for entities that only trade in
the U.S., the Final Rule may result in separate
compliance timings and AANA calculations.
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separate measures and processes to
address compliance in different
jurisdictions for some entities. The Final
Rule may thus incentivize more firms to
enter into uncleared swap transactions,
increasing liquidity and leading to more
robust pricing that reflects market
fundamentals.
The amendment to Regulation
23.154(a), as proposed, may relieve
certain CSEs from having to adopt a
risk-based margin model to calculate IM
or use the standardized IM table, by
allowing them to rely on a
counterparty’s risk-based model
calculation of IM. Relative to the
alternatives, being able to have IM
calculated in this manner may lower the
costs of trading for such entities, and
they may increase their trading in
uncleared swaps, which in turn may
increase liquidity and enhance price
discovery. On the other hand, the Final
Rule may encourage entities to shift
their trading from swaps that can be
cleared, potentially reducing liquidity
and price discovery in those markets.
(d) Sound Risk Management
The Final Rule may reduce the need
for some firms to undertake separate
AANA calculations using different
methods and to conform to separate
compliance timing, allowing firms to
engage in sound risk management by
focusing on more substantive
requirements.
Under the current rule, after the last
phase of compliance, CSEs that enter
into uncleared swaps with FEUs with
MSE would have been required to
exchange IM with such FEUs beginning
on January 1, 2023. Under the Final
Rule, CSEs will not be required to
exchange IM with an FEU with MSE
until September 1, 2023. As such, one
effect of adopting the Final Rule is that
uncleared swaps entered into between
January 1, 2023, and September 1, 2023,
by a CSE and FEU with MSE may now
be uncollateralized. Given that less
collateral may be collected during that
nine-month period, positions created
during that period may be riskier,
increasing the risk of contagion and
systemic risk. Conversely, because the
existing January 1, 2023 compliance
date would have required reassessment
of MSE status on such date, certain
FEUs that came into scope in the last
phase of compliance may have come out
of scope post-phase-in, resulting in the
collection of less collateral for such
entities than under the Final Rule. The
Commission therefore believes that
balancing the additional firms that will
not be required to exchange IM until
September 2023, against the possibility
that some firms would have come out of
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245
scope under the existing requirements,
the impact of the rule change with
respect to the exchange of required
collateral is likely to be relatively small.
Also, it is possible that FEUs trading
certain financial products may not meet
the MSE threshold because month-end
positions in these financial products are
not reflective of their typical position,
so that their month-end AANAs may be
uncharacteristically low.166 As result,
CSEs and such FEUs may not exchange
IM for their uncleared swaps and their
swaps may be insufficiently
collateralized, increasing the risk of
contagion and systemic risk.
Conversely, because more than 96% of
FEUs are unlikely to have MSE and
come within the scope of the IM
requirements, as estimated by the OCE,
the exclusion of such products will have
a limited impact on the effectiveness of
the Commission’s IM requirements.
Having only three observations to
evaluate an entity’s typical position may
lead to less precision in determining
which entities are most likely to
contribute to systemic risk. However,
absent ‘‘window dressing’’ issues, the
effect of having fewer observations is
unlikely to be substantial. Based on
2020 trading, OCE estimates that the
sets of firms that will meet MSE under
either measure are largely the same, and
the set of entities that meet one criterion
and not the other tends to consist of the
smallest entities.
In regard to ‘‘window dressing,’’
AANA calculations based on month-end
AANA compared to the currently
required daily AANA averaging may be
more susceptible to manipulation and
less conducive to sound risk
management. FEUs may manage their
exposures as they approach the monthend date during the three-month
calculation period to avoid MSE status.
The Commission, however, believes that
the anti-evasion language being
incorporated into the rule text by this
Final Rule, discussed in more detail
above, would reduce the risk of window
dressing. In addition, the Commission
notes that it has authority, including
anti-fraud authority under section 4b of
the CEA, to take appropriate
enforcement actions against any market
participant that may engage in deceptive
conduct with respect to the AANA
calculation, and that CSEs, under the
Commission’s regulations, must have
written policies and procedures in place
166 As noted in footnote 60 infra, the month-end
calculation may tend to undercount positions in
certain physical energy swaps.
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Federal Register / Vol. 86, No. 2 / Tuesday, January 5, 2021 / Rules and Regulations
to prevent evasion or the facilitation of
an evasion by an FEU counterparty.167
As proposed, the Final Rule allows
CSEs to use the risk-based model
calculation of a swap entity
counterparty to calculate the amount of
IM to be collected from such
counterparty, consistent with Letter 19–
29. As a result, CSEs may no longer be
incentivized to adopt a proprietary riskbased model. If a CSE uses a
counterparty’s IM model calculation
without developing its own model, the
CSE may lack reasonable means to
verify the IM provided by its
counterparty, recognize shortfalls in the
IM calculation, and identify potential
flaws in the swap entity counterparty’s
risk-based model. As such, insufficient
amounts of IM may be collected by the
CSE to protect itself against the risk of
default by the swap entity counterparty,
increasing the risk of contagion and the
potential for systemic risk. The
Commission, however, believes that
these risks are mitigated because, under
the Final Rule, CSEs are able to use a
counterparty’s risk-based model IM
calculation only with respect to
uncleared swaps entered into for the
purpose of hedging. In addition, the
Commission notes that there are other
requirements in the Commission’s
regulations that address the monitoring
of exposures and swap risk.
association established pursuant to
section 17 of the CEA.168
The Commission believes that the
public interest to be protected by the
antitrust laws is generally to protect
competition. The Commission requested
comment on whether the Proposal
implicated any other specific public
interest to be protected by the antitrust
laws and received no comments.
The Commission has considered the
Final Rule to determine whether it is
anticompetitive, and has identified no
anticompetitive effects. The
Commission requested comment on
whether the Proposal was
anticompetitive and, if it was, what the
anticompetitive effects were, and
received no comments.
Because the Commission has
determined that the Final Rule is not
anticompetitive and has no
anticompetitive effects, the Commission
has not identified any less competitive
means of achieving the purposes of the
Act.
(e) Other Public Interest Considerations
The Commission believes that the
Final Rule, by aligning the CFTC Margin
Rule with the BCBS/IOSCO Framework,
will promote harmonization with
international regulatory requirements
and may reduce the potential for
regulatory arbitrage. However, given
that the U.S. prudential regulators have
not amended their margin requirements
in line with the Final Rule, the
possibility exists that certain firms may
undertake swaps with particular SDs
based on which U.S. regulatory agency
is responsible for setting margin
requirements for such SDs.
PART 23—SWAP DEALERS AND
MAJOR SWAP PARTICIPANTS
D. Antitrust Laws
Section 15(b) of the CEA requires the
Commission to take into consideration
the public interest to be protected by the
antitrust laws and endeavor to take the
least anticompetitive means of
achieving the objectives of the CEA, as
well as the policies and purposes of the
CEA, in issuing any order or adopting
any Commission rule or regulation
(including any exemption under section
4(c) or 4c(b)), or in requiring or
approving any bylaw, rule or regulation
of a contract market or registered futures
167 See
17 CFR 23.402(a)(ii).
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List of Subjects in 17 CFR Part 23
Capital and margin requirements,
Major swap participants, Swap dealers,
Swaps.
For the reasons stated in the
preamble, the Commodity Futures
Trading Commission amends 17 CFR
part 23 as follows:
1. The authority citation for part 23
continues to read as follows:
■
Authority: 7 U.S.C. 1a, 2, 6, 6a, 6b, 6b–
1, 6c, 6p, 6r, 6s, 6t, 9, 9a, 12, 12a, 13b, 13c,
16a, 18, 19, 21.
Section 23.160 also issued under 7 U.S.C.
2(i); Sec. 721(b), Pub. L. 111–203, 124 Stat.
1641 (2010).
2. In § 23.151, revise the definition of
‘‘Material swaps exposure’’ to read as
follows:
■
§ 23.151 Definitions applicable to margin
requirements.
*
*
*
*
*
Material swaps exposure for an entity
means that, as of September 1 of any
year, the entity and its margin affiliates
have an average month-end aggregate
notional amount of uncleared swaps,
uncleared security-based swaps, foreign
exchange forwards, and foreign
exchange swaps with all counterparties
for March, April, and May of that year
that exceeds $8 billion, where such
amount is calculated only for the last
business day of the month. Activities
not carried out in the regular course of
168 7
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Frm 00024
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business and willfully designed to
circumvent calculation at month-end to
evade meeting the definition of material
swaps exposure shall be prohibited. An
entity shall count the average monthend aggregate notional amount of an
uncleared swap, an uncleared securitybased swap, a foreign exchange forward,
or a foreign exchange swap between the
entity and a margin affiliate only one
time. For purposes of this calculation,
an entity shall not count a swap that is
exempt pursuant to § 23.150(b) or a
security-based swap that qualifies for an
exemption under section 3C(g)(10) of
the Securities Exchange Act of 1934 (15
U.S.C. 78c–3(g)(4)) and implementing
regulations or that satisfies the criteria
in section 3C(g)(1) of the Securities
Exchange Act of 1934 (15 U.S.C. 78–
c3(g)(4)) and implementing regulations.
*
*
*
*
*
3. In § 23.154, add paragraph (a)(5) to
read as follows:
■
§ 23.154
Calculation of initial margin.
(a) * * *
(5) A covered swap entity would be
deemed to calculate initial margin as
required by paragraph (a)(1) of this
section if it uses the amount of initial
margin calculated by a counterparty that
is a swap entity and the initial margin
amount is calculated using the swap
entity’s risk-based model that meets the
requirements of paragraph (b) of this
section or is approved by a prudential
regulator, provided that initial margin
calculated in such manner is used only
with respect to uncleared swaps entered
into by the covered swap entity and the
swap entity for the purpose of hedging
the covered swap entity’s swaps with
non-swap entity counterparties.
*
*
*
*
*
Issued in Washington, DC, on December
11, 2020, by the Commission.
Christopher Kirkpatrick,
Secretary of the Commission.
Note: The following appendices will not
appear in the Code of Federal Regulations.
Appendices to Margin Requirements for
Uncleared Swaps for Swap Dealers and
Major Swap Participants—Commission
Voting Summary and Commissioners’
Statements
Appendix 1—Commission Voting
Summary
On this matter, Chairman Tarbert and
Commissioners Quintenz, Behnam, Stump,
and Berkovitz voted in the affirmative. No
Commissioner voted in the negative.
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Appendix 2—Statement of Support of
Commissioner Brian D. Quintenz
I vote in favor of today’s final rule that
first, amends a key definition used to
determine whether a financial end-user must
comply with the Commission’s uncleared
swap margin regulations when trading with
a swap dealer,1 and second, codifies noaction relief providing additional flexibility
for swap dealers to use the risk-based
calculation of initial margin.2 With regard to
the adjustment to the definition of material
swap exposure, I support the fact that the
rulemaking further aligns the Commission’s
rules to the framework agreed upon by the
international framework established by
BCBS–IOSCO. However, I continue to take
issue with the reliance on notional value as
the defining metric for determining whether
a firm should be subject to the uncleared
margin regulations. The philosophy behind
such a framework is that firms with small
levels of swaps can have outsized impacts on
the financial system. Further, the fact that
we, as an agency and as international
regulators, continue to embrace a metric as
useless, biased, and arbitrary as notional
value is something I have long opposed, and
I have never, not once, heard an acceptable
or even rationale defense for doing so.
Appendix 3—Statement of Support of
Commissioner Dawn D. Stump
Overview
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I am pleased to support the final
rulemaking that the Commission is adopting
with respect to the definition of ‘‘material
swaps exposure’’ and an alternative margin
calculation method in connection with the
Commission’s margin requirements for
uncleared swaps.
This rulemaking addresses
recommendations that the Commission has
received from its Global Markets Advisory
Committee (‘‘GMAC’’), which I am proud to
sponsor, and is based on a comprehensive
report prepared by GMAC’s Subcommittee on
Margin Requirements for Non-Cleared Swaps
(‘‘GMAC Margin Subcommittee’’).1 It
demonstrates the value added to the
Commission’s policymaking by its Advisory
Committees, in which market participants
and other interested parties come together to
provide us with their perspectives and
potential solutions to practical problems.
The rulemaking we are adopting makes
two changes to the Commission’s uncleared
margin rules. These changes have much to
commend them—indeed, we did not receive
any comment letters opposing them. These
rule changes further objectives that I have
commented on before:
• The imperative of harmonizing our
margin requirements with those of our
1 Definition of material swap exposure under reg.
23.151(a).
2 CFTC Letter 19–29.
1 Recommendations to Improve Scoping and
Implementation of Initial Margin Requirements for
Non-Cleared Swaps, Report to the CFTC’s Global
Markets Advisory Committee by the Subcommittee
on Margin Requirements for Non-Cleared Swaps
(April 2020) (‘‘Margin Subcommittee Report’’),
available at https://www.cftc.gov/media/3886/
GMAC_051920MarginSubcommitteeReport/
download.
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international colleagues in order to facilitate
compliance and coordinated regulatory
oversight; and
• the benefits of codifying relief that has
been issued by our Staff and re-visiting our
rules, where appropriate.
Background: A Different Universe Is Coming
Into Scope of the Uncleared Margin Rules
The Commission’s uncleared margin rules
for swap dealers, like the Framework of the
Basel Committee on Banking Supervision
and the Board of the International
Organization of Securities Commissions
(‘‘BCBS/IOSCO’’) 2 on which they are based,
were designed primarily to ensure the
exchange of margin between the largest, most
systemic, and interconnected financial
institutions for their uncleared swap
transactions with one another. Today, these
institutions and transactions are subject to
uncleared margin requirements that have
taken effect since the rules were adopted.
Pursuant to the phased implementation
schedule of the Commission’s rules and the
BCBS/IOSCO Framework, though, a different
universe of market participants—presenting
unique considerations—will soon be coming
into scope of the margin rules. It is only now,
as we enter the final phases of the
implementation schedule, that the
Commission’s uncleared margin rules will
apply to a significant number of financial
end-users, and we have a responsibility to
make sure they are fit for that purpose.
Accordingly, now is the time we must
thoughtfully consider whether the regulatory
parameters that we have designed for the
largest financial institutions in the earlier
phases of margin implementation need to be
tailored to account for the practical and
operational challenges posed by the exchange
of margin when one of the counterparties is
a pension plan, endowment, insurance
provider, mortgage service provider, or other
financial end-user.
International Harmonization To Enhance
Compliance and Coordinated Regulation
The first rule change we are adopting
would revise the calculation method for
determining whether financial end-users
come within the scope of the initial margin
(‘‘IM’’) requirements, and the timing for
compliance with the IM requirements after
the end of the phased compliance schedule.
These changes would align certain timing
and calculation issues under the
Commission’s margin rules with both the
BCBS/IOSCO Framework and the manner in
which these issues are handled by our
regulatory colleagues in all other major
market jurisdictions.
Swap dealers must exchange IM with
respect to uncleared swaps that they enter
into with a financial end-user counterparty
that has material swaps exposure (‘‘MSE’’).
The Commission’s margin rules currently
provide that after the last phase of
compliance, MSE is to be determined on
January 1, and that an entity has MSE if it
has more than $8 billion in average aggregate
2 See generally BCBS/IOSCO, Margin
requirements for non-centrally cleared derivatives
(July 2019), available at https://www.bis.org/bcbs/
publ/d475.pdf.
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247
notional amount (‘‘AANA’’) during June,
July, and August of the prior year. By
contrast, under the BCBS/IOSCO Framework
and in virtually every other country in the
world, an entity is determined to come into
scope of the IM requirement on September 1,
and an entity has MSE if it has the equivalent
of $8 billion in AANA 3 during March, April,
and May of that year.
The reason the United States is out-of-step
with the rest of the world on these timing
and calculation issues is not because of any
reasoned policy determination. Rather, it is
the result of a quirk that the U.S. margin
rules were adopted based on the BCBS/
IOSCO Framework that was in effect at the
time—but the BCBS/IOSCO Framework was
revised two years later.
In a further disconnect, the Commission’s
margin rules look to the daily average AANA
during the three-month calculation period for
determining MSE, whereas the BCBS/IOSCO
Framework and other major market
jurisdictions base the AANA calculation on
an average of month-end dates during that
period. Yet, as noted in the rulemaking
release, the Commission’s Office of the Chief
Economist has estimated that calculations
based on end-of-month AANA generally
would yield similar results as calculations
based on the Commission’s current daily
AANA approach. It has been suggested that
this rule change theoretically might
incentivize a firm to ‘‘window dress’’ its
swap exposures as the month-end
approaches in order to avoid margin
requirements. But the GMAC Margin
Subcommittee observed that it would be
neither practicable nor financially desirable
for parties to tear-up their positions on a
recurring basis prior to the month-end
calculation,4 because doing so would
interfere with hedging strategies and cause
the firm to incur realized profit and loss.5
Accordingly, the Commission is amending
these timing and calculation provisions of its
uncleared margin rules to harmonize them
with the BCBS/IOSCO Framework and the
approach followed by our international
colleagues. Given the global nature of the
derivatives markets, we should always seek
international harmonization of our
3 The MSE threshold under the BCBS/IOSCO
Framework is stated in euros rather than dollars.
4 Margin Subcommittee Report at 52.
5 Commenters made this same point. See, e.g.,
Joint Letter from ISDA, SIFMA, and GFXD at 3
(month-end window dressing is not a realistic risk
since unwinding and then reestablishing positions
on a recurring basis over the three-month period
would take considerable effort, interrupt hedging
strategies, and require counterparties to absorb the
costs of realized profit and loss changes); Letter
from SIFMA Asset Management Group at 3 (it
would be neither practicable nor financially
desirable for parties to tear-up positions on a
recurring basis prior to each month end); Letter
from Investment Company Institute at 5–6 (for
regulated funds, adjusting swap exposures over the
course of three periodic dates solely to avoid IM
could impose transaction costs and inhibit a fund’s
ability to manage its portfolio risk, which may be
inconsistent with the investment adviser’s fiduciary
duty to act in the best interest of its client).
Comment letters available at https://
comments.cftc.gov/PublicComments/
CommentList.aspx?id=4157.
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Federal Register / Vol. 86, No. 2 / Tuesday, January 5, 2021 / Rules and Regulations
regulations unless a compelling reason exists
not to do so—which is not the case here.
Indeed, in the Dodd-Frank Act, Congress
specifically directed the Commission, ‘‘[i]n
order to promote effective and consistent
global regulation of swaps,’’ to ‘‘consult and
coordinate with foreign regulatory authorities
on the establishment of consistent
international standards with respect to the
regulation . . . of swaps [and] swap
entities. . . .’’ 6 And when the G–20 leaders
met in Pittsburgh in the midst of the financial
crisis in 2009, they, too, recognized that a
workable solution for global derivatives
markets demands coordinated policies and
cooperation.7
Our rule change regarding MSE is true to
the direction of Congress in the Dodd-Frank
Act, and honors the commitment of the G–
20 leaders at the Pittsburgh summit.
Differences between countries in the detailed
timing and calculation requirements with
respect to uncleared margin compel
participants in these global markets to run
multiple compliance calculations—for no
particular regulatory reason. This not only
forces market participants to bear
unnecessary costs, but actually hinders
compliance with margin requirements
because of the entirely foreseeable prospect
of calculation errors in applying the different
rules.
As noted above, now is the time to address
this disconnect in MSE timing and
calculation requirements because the
financial end-users to which the MSE
definition applies are coming into scope of
the margin rules. During the unfortunate
events of the financial crisis, we learned that
coordination among global regulators,
working towards a common objective, is
essential. That lesson remains true today, and
we are reminded that disregarding this reality
has the potential to weaken, rather than
strengthen, the effectiveness of our oversight
and the resilience of global derivatives
markets.
The Benefits of Codifying Staff Relief and
Re-Visiting Our Rules
The second rule change that we are
adopting would codify existing Staff noaction relief in recognition of market
realities. The Commission’s Staff often has
occasion to issue relief or take other action
in the form of no-action letters, interpretative
letters, or advisories on various issues and in
various circumstances. This affords the
Commission a chance to observe how the
Staff action operates in real-time, and to
evaluate lessons learned. With the benefit of
this time and experience, the Commission
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6 See
section 752(a) of the Dodd-Frank Wall Street
Reform and Consumer Protection Act, Public Law
111–203, Title VII, 124 Stat. 1376 (2010) (‘‘DoddFrank Act’’).
7 See Leaders’ Statement from the 2009 G–20
Summit in Pittsburgh, Pa. at 7 (September 24–25,
2009) (‘‘We are committed to take action at the
national and international level to raise standards
together so that our national authorities implement
global standards consistently in a way that ensures
a level playing field and avoids fragmentation of
markets, protectionism, and regulatory arbitrage’’),
available at https://www.treasury.gov/resourcecenter/international/g7-g20/Documents/pittsburgh_
summit_leaders_statement_250909.pdf.
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should then consider whether codifying such
Staff action into rules is appropriate.8 As I
have said before, ‘‘[i]t is simply good
government to re-visit our rules and assess
whether certain rules need to be updated,
evaluate whether rules are achieving their
objectives, and identify rules that are falling
short and should be withdrawn or
improved.’’ 9
This second rule change would codify the
alternative IM calculation method set out in
Staff no-action Letter No. 19–29.10 It would
provide that a swap dealer may use the riskbased model calculation of IM of a
counterparty that is a CFTC-registered swap
dealer as the amount of IM that the former
must collect from the latter. The release
states the Commission’s expectation that this
alternative method of IM collection will be
used by swap dealers with a discrete and
limited swap business consisting primarily of
entering into uncleared customer-facing
swaps with end-user counterparties, and then
hedging the risk of those swaps with
uncleared swaps entered into with a few
other swap dealers.
Simply put, not all swap dealers are
created equal. It is therefore appropriate to
tailor our uncleared margin regime
accordingly. Letter No. 19–29 recognized this
reality and smoothed the rough edges of our
otherwise one-size-fits-all uncleared margin
rules, and it is appropriate to codify that
result.
Yet, under the rule amendments being
adopted, this alternative method is subject to
the condition that the uncleared swaps for
which a swap dealer uses the risk-based
model calculation of IM of its swap dealer
counterparty are entered into for the purpose
of hedging the former’s own risk from
entering into customer-facing swaps with
non-swap dealer counterparties. This is a
departure from the GMAC Margin
Subcommittee, which did not recommend
such a condition.
I am concerned by comments we received
suggesting that this condition may cause this
rule change to prove unworkable in
8 See comments of Commissioner Dawn D. Stump
during Open Commission Meeting on January 30,
2020, at 183 (noting that after several years of noaction relief regarding trading on swap execution
facilities (‘‘SEFs’’), ‘‘we have the benefit of time and
experience and it is time to think about codifying
some of that relief. . . . [T]he SEFs, the market
participants, and the Commission have benefited
from this time and we have an obligation to provide
more legal certainty through codifying these
provisions into rules.’’), available at https://
www.cftc.gov/sites/default/files/2020/08/
1597339661/openmeeting_013020_Transcript.pdf.
9 Statement of Commissioner Dawn D. Stump for
CFTC Open Meeting on: (1) Final Rule on Position
Limits and Position Accountability for Security
Futures Products; and (2) Proposed Rule on Public
Rulemaking Procedures (Part 13 Amendments)
(September 16, 2019), available at https://
www.cftc.gov/PressRoom/SpeechesTestimony/
stumpstatement091619.
10 CFTC Letter No. 19–29, Request for No-Action
Relief Concerning Calculation of Initial Margin
(December 19, 2019), available at https://
www.cftc.gov/LawRegulation/CFTCStaffLetters/
letters.htm?title=&field_csl_letter_types_target_
id%5B%5D=636&field_csl_divisions_target_
id%5B%5D=596&field_csl_letter_year_
value=2019&=Apply.
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practice.11 I am encouraged that the
rulemaking release addresses some of these
comments by, among other things,
confirming: (1) The flexibility of swap
dealers as part of their hedging strategy to
match a set of customer-facing swaps with
one or more hedging swaps undertaken with
swap dealer counterparties; and (2) that
customer-facing swaps entered into through
anticipatory hedging or that are subsequently
terminated would be deemed hedges for
purposes of the alternative method of IM
calculation. Nevertheless, if over time,
market participants find that the hedging
condition causes this rule change to fail to
fulfill its intended purpose, I urge them to
alert the Commission so that it can consider
appropriate adjustments.
There Remains Unfinished Business
While I am pleased with the steps the
Commission is taking, there remains
unfinished business in the implementation of
uncleared margin requirements. As an initial
matter, U.S. prudential regulators with
oversight authority over bank swap dealers
have not adopted the same rule changes. As
a result, although commenters expressed
support for the Commission proceeding with
these rule changes even in the absence of
parallel action by the U.S. prudential
regulators, the operational difficulties
confronting market participants that are
coming into scope of the margin rules will
not be fully addressed when they enter into
uncleared swaps with bank swap dealers. I
look forward to continuing the dialogue with
our regulatory colleagues at other U.S.
agencies to support addressing these
challenges.
In addition, the report of the GMAC Margin
Subcommittee recommended several actions,
beyond those that we are adopting, to address
the hurdles associated with the application of
uncleared margin requirements to end-users.
Having been present for the development of
the Dodd-Frank Act, I recall that the concerns
expressed by many lawmakers at the time
focused on the application of the new
requirements to end-users. The unique
challenges with respect to uncleared margin
that caused uneasiness back in 2009–2010
are now much more immediate as the margin
requirements are being phased in to apply to
these end-users. As the calendar turns into
the new year, I look forward to continuing to
work together to address the other
recommendations included in the GMAC
Margin Subcommittee’s report regarding
applying the uncleared margin rules to
financial end-users. The need to do so will
11 See, e.g., Letter from BP Energy Company at 5
(given the uncertainty as to what constitutes
hedging, swap dealers may be reluctant to rely on
the alternative method of IM calculation) and 6
(limiting relief to hedge transactions may diminish
its utility); Letter from Futures Industry Association
at 8 (complexity and added risk of hedging
condition will make the alternative method of IM
calculation impractical as counterparties will shy
away from undertaking swaps with swap dealers
that rely on the alternative method of calculating
IM; also, cost, operational and documentation
burdens associated with hedging condition could
lead small swap dealers to cease providing risk
management services to end-user counterparties,
leaving end users with unhedged risks).
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only become more urgent as time marches
on.
Conclusion
To be clear, these amendments to the
uncleared margin rules are not a ‘‘roll-back’’
of the margin requirements that apply today
to the largest financial institutions in their
swap transactions with one another. Rather,
they reflect a thoughtful refinement of our
rules to align them with the rest of the
international regulatory community, and to
take account of specific circumstances in
which the rules impose substantial practical
and operational challenges (i.e., they are not
workable) when applied to financial endusers that are now coming within the scope
of their mandates.
I am very appreciative of the many people
whose efforts have contributed to bringing
this rulemaking to fruition. First, the
members of the GMAC, and especially the
GMAC Margin Subcommittee, who devoted a
tremendous amount of time to provide us
with a high-quality report on complex margin
issues during the turmoil at the start of the
pandemic. Second, Chairman Tarbert and my
fellow Commissioners for working with me
on these important issues. And finally, the
Staff of the Market Participants Division,
whose tireless efforts have enabled us to
advance these initiatives to assure that our
uncleared margin rules are workable for all
and are in line with international standards,
thereby enhancing compliance consistent
with our oversight responsibilities under the
Commodity Exchange Act.
Appendix 4—Statement of
Commissioner Dan M. Berkovitz
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I. Introduction
I support today’s two final rules that make
tailored amendments to the CFTC’s Margin
Rule.1 The Margin Rule requires swap
dealers (‘‘SDs’’) and major swap participants
(‘‘MSPs’’) for which there is no prudential
regulator to post and collect, each business
day, initial and variation margin for
uncleared swap transactions with each
counterparty that is an SD, MSP, or a
financial end user with material swaps
exposure (‘‘MSE’’).2 The Margin Rule is a
lynchpin of the Dodd-Frank reforms for
swaps markets, and critical to mitigating
risks in the financial system that might
otherwise arise from uncleared swaps.3 I
support the final rules because they provide
targeted, operational improvements to the
Margin Rule; include backstops to deter any
potential abuse; and are unlikely to increase
risk to the U.S. financial system.
The two final rules address: (1) The
definition of MSE and an alternative method
for calculating initial margin (‘‘MSE and
1 Margin Requirements for Uncleared Swaps for
Swap Dealers and Major Swap Participants, 81 FR
636 (Jan. 6, 2016) (‘‘Margin Rule’’).
2 Although addressed in the final rules, there are
currently no registered MSPs.
3 Section 4s(e) of the Commodity Exchange Act
(‘‘CEA’’), as amended by the Dodd-Frank Act,
requires the Commission to adopt rules for
minimum initial and variation margin for uncleared
swaps entered into by SDs and MSPs for which
there is no prudential regulator.
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Initial Margin Final Rule’’); and (2) the
application of the minimum transfer amount
(‘‘MTA’’) for initial and variation margin
(‘‘MTA Final Rule’’). The final rules align
Commission requirements with international
frameworks developed by the Basel
Committee on Banking Supervision and the
International Organization of Securities
Commissions (‘‘BCBS/IOSCO’’),4 and
incorporate recommendations made to the
CFTC’s Global Markets Advisory
Committee.5 The final rules also build off
existing CFTC staff no-action letters that in
some cases have been in place since 2017,
and that have operated with no apparent
detrimental effects.
II. MSE and Initial Margin Final Rule
The MSE and Initial Margin Final Rule
amends the definition of MSE to align it with
the BCBS/IOSCO framework, including the
method for calculating the average daily
aggregate notional amount (‘‘AANA’’) of
swaps. The final rule provides for
calculations based on the average of the last
business day in each month of a three-month
period. The Commission previously raised
concerns that this method of AANA
calculation could potentially become less
representative of an entity’s true AANA and
swaps exposure, potentially through the use
of ‘‘window dressing’’ to artificially reduce
AANA during the measurement period.6
The MSE and Initial Margin Final Rule
includes an important new provision to
address this issue. The final rule explicitly
prohibits any ‘‘[a]ctivities not carried out in
the regular course of business and willfully
designed to circumvent calculation at monthend to evade meeting the definition of
material swaps exposure . . . .’’ 7 The
addition of this language to the final rule’s
regulatory text will help ensure that CFTC
efforts at international harmonization will
not come at the expense of the safety and
soundness of the U.S. financial system.8 I
thank the Chairman and the CFTC staff for
working with my office to include this
provision.
The MSE and Initial Margin Final Rule will
also allow SDs and MSPs for which there is
no prudential regulator (‘‘Covered Swap
4 BCBS/IOSCO, Margin requirements for noncentrally cleared derivatives (July 2019), available
at https://www.bis.org/bcbs/publ/d475.pdf. The
BCBS/IOSCO framework was originally
promulgated in 2013 and later revised in 2015.
5 Recommendations to Improve Scoping and
Implementation of Initial Margin Requirements for
Non-Cleared Swaps, Report to the CFTC’s Global
Markets Advisory Committee by the Subcommittee
on Margin Requirements for Non-Cleared Swaps
(Apr. 2020), available at https://www.cftc.gov/
media/3886/GMAC_051920MarginSubcommittee
Report/download.
6 See Margin Rule, 81 FR at 645.
7 MSE and Initial Margin Final Rule at new
§ 23.151 (defining ‘‘Material Swaps Exposure’’).
8 The preamble to the MSE and Initial Margin
Final Rule also notes an analysis by the CFTC’s
Office of the Chief Economist indicating that the
new month-end AANA calculation method captures
substantially the same entities and total number of
entities as the Commission’s previous daily AANA
calculation method. As with any rulemaking, the
Commission is free in the future to periodically
review its data and confirm that the new AANA
calculation method is performing as expected.
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249
Entities’’ or ‘‘CSEs’’) to rely on the initial
margin calculations of the more sophisticated
counterparties with whom they transact
swaps to manage their risks. This flexibility
is limited to circumstances where a CSE
enters into uncleared swaps with an SD,
MSP, or swap entity to hedge its customerfacing swaps. This amendment to the
Commission’s existing rules could help
promote liquidity and competition in swaps
markets by increasing choice for end-users
that are CSE customers.
The MSE and Initial Margin Final Rule
provides helpful direction regarding the
scope of hedging swaps for purposes of
relying on a CSE counterparty’s initial
margin calculations. As set forth in the
preamble to the final rule, a hedging swap
must be consistent (although not identical)
with the statutory definition of ‘‘bona fide
hedging transaction or position’’ in CEA
section 4a(c)(2)(B).9 The final rule also makes
clear that existing Commission regulations
require a CSE that relies on its counterparty’s
initial margin calculations to also take steps
to ‘‘monitor, identify, and address potential
shortfalls in the amounts of [initial margin]
generated by the counterparty on whose
[initial margin] model the CSE is relying.’’ 10
III. MTA Final Rule
To reduce operational burdens associated
with de minimis margin transfers, the Margin
Rule provides that a CSE is not required to
collect or post margin until the combined
amount of initial margin and variation
margin that is required to be collected or
posted and that has not been collected or
posted with respect to the counterparty
exceeds $500,000—the MTA.11 This MTA
level, in part, helps limit the amount of a
counterparty’s uncollateralized, uncleared
swaps exposure and mitigate any systemic
risk arising from such swaps.
The MTA Final Rule addresses the
application of the $500,000 MTA level to a
counterparty’s ‘‘separately managed
accounts,’’ as well as the use of separate
MTAs for initial and variation margin.12 The
MTA Final Rule codifies separate treatment
for separately managed accounts and permits
an MTA of $50,000 for each such account of
a counterparty. This approach responds to
practical limits on the ability of asset
managers, for example, to aggregate initial
and variation margin obligations across
multiple separately managed accounts owned
by the same counterparty. The MTA Final
Rule also provides that if certain entities
agree to separate MTAs for initial margin and
variation margin, the respective amounts of
MTA must be reflected in their required
margin documentation.
These new provisions balance concerns
over operational inefficiencies and practical
challenges in the Commission’s MTA rules
against concerns that they may result in the
exchange of less total margin than would be
the case under the Commission’s current
97
U.S.C. 6a(c)(2).
and Initial Margin Final Rule at section
10 MSE
II(B).
11 17 CFR 23.151.
12 Both aspects of the MTA Final Rule were the
subject of CFTC staff no-action letters issued in
2017 and 2019, respectively.
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requirements. Comments in response to the
proposed rule noted the difficulties that
would be associated with creating numerous
separately managed accounts solely to evade
the comparatively low $50,000 MTA for
separately managed accounts. The MTA
Final Rule also defines separately managed
account so that the swaps of such account are
not subject to a netting of initial or variation
margin obligations. This potentially provides
further disincentive to create separately
managed accounts solely for the purpose of
evading the $50,000 MTA level for such
accounts.
IV. Conclusion
Mitigating systemic risk to the U.S.
financial system was a primary objective of
the Dodd-Frank Act in 2010, and of
subsequent Commission rulemakings to
implement Dodd-Frank, including the
Margin Rule adopted in 2016. The
Commission must remain committed to the
Margin Rule and vigilant for any large pool
of uncollateralized, uncleared swaps
exposure. Today’s targeted final rules, which
codify existing practices, include embedded
backstops, and provide tailored operational
enhancements to the Margin Rule, are
unlikely to present systemic risks.
I thank staff of the Market Participants
Division for their work on these final rules.
[FR Doc. 2020–27736 Filed 1–4–21; 8:45 am]
BILLING CODE 6351–01–P
AGENCY FOR INTERNATIONAL
DEVELOPMENT
22 CFR Part 212
RIN 0412–AB00
Procedures for the Review and
Clearance of USAID’s Guidance
Documents
U.S. Agency for International
Development (USAID).
ACTION: Final rule.
AGENCY:
This final rule amends
USAID’s regulations to implement
Executive Order (E.O.) 13891,
Promoting the Rule of Law Through
Improved Agency Guidance Documents.
This rule sets forth processes and
procedures for USAID to issue guidance
documents as defined in the E.O. in a
manner consistent with the
requirements of Federal law applicable
to all employees involved in inherently
governmental deliberative decisionmaking on policy and employees
involved in related administrative
processes.
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SUMMARY:
This final rule is effective
January 5, 2021.
DATES:
FOR FURTHER INFORMATION CONTACT:
Tyrone K. Brown, Guidance Mailbox,
(202) 355–7450, tybrown@usaid.gov.
SUPPLEMENTARY INFORMATION:
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Background
On October 9, 2019 (84 FR 55235),
President Trump issued Executive
Order (E.O.) 13891, Promoting the Rule
of Law Through Improved Agency
Guidance Documents. The E.O. asserts
that, except as mandated by applicable
law or incorporated into a binding
contract or agreement, Federal
Departments and Agencies should treat
guidance documents as non-binding on
outside entities both in law and
practice. To further the principle that
Federal guidance should be transparent
and made readily available to the
public, Section 3 of the E.O. requires
that Departments and Agencies make
guidance documents available on a
single, searchable, indexed public
website. Section 3 also requires that
Departments and Agencies review their
guidance documents and, consistent
with applicable law, rescind those that
should no longer be in effect. Lastly,
Section 4 requires that each Department
and Agency put in place processes and
procedures for issuing guidance
documents as defined by the E.O.
In accordance with that direction, to
codify our processes and procedures for
guidance documents, the U.S. Agency
for International Development (USAID)
is amending our Automated Directives
System (ADS) to update ADS Chapter
501, which governs the clearance
process for reviewing and issuing
Agency policy documents, to include
guidance documents as defined by the
E.O. USAID’s formal clearance process
ensures that all guidance documents
receive legal review and, when
appropriate, review and approval from
USAID’s Regulatory Reform Officer,
who is the Agency’s Deputy
Administrator.
Before the Agency issues guidance
documents as defined by E.O. 13891, we
must review them to ensure they are
written in plain language and do not
impose any substantive legal
requirements above and beyond statute
or regulation. If a guidance document
purports to describe, approve, or
recommend specific conduct not
required by existing laws, statutes, and
regulations, then it must include a clear
and prominent statement that the
contents of the guidance document do
not have the force and effect of law and
are not meant to bind the public in any
way, and that the guidance document is
intended only to provide clarity to the
public regarding existing requirements
under the law or internal Agency
policies and procedures applicable to
our staff.
According to E.O. 13891, guidance
documents shall also be subject to
PO 00000
Frm 00028
Fmt 4700
Sfmt 4700
notice-and-comment procedures. The
E.O. mandates that Departments and
Agencies shall publish a notice in the
Federal Register to announce that a
draft of the proposed guidance
document is publicly available; shall
post the draft guidance document on the
guidance portal of the Department or
Agency; shall invite public comment on
the draft document for a minimum of 30
days; and shall prepare and post a
public response to major concerns
raised in the comments, as appropriate,
on its guidance portal, when the
Department or Agency finalizes and
issues the guidance document.
Consistent with E.O. 13891, USAID
proposes procedures to allow the public
to petition for the modification or
withdrawal of an active guidance
document posted on the Agency’s
guidance portal. USAID’s guidance
portal will provide clear and specific
instructions on how to request the
modification or withdrawal of an active
guidance document.
The Office of the General Counsel
(GC) at USAID has determined that the
Agency has no ‘‘guidance documents’’
as defined under E.O. 13891. USAID’s
internal guidance materials do not
qualify as ‘‘guidance documents’’ under
the E.O., nor do grant and contract
solicitations and awards; Country and
Regional Development Cooperation
Strategies; Agency programmatic
Policies and Strategies; and purely
internal Agency policies not intended to
have substantial effect on the behavior
of regulated parties, such as Chapters of
our ADS. The procedures contained in
this final rule apply to all guidance
documents, which USAID defines as
any statement of Agency policy or
interpretation that concerns a statute,
regulation, or technical matter within
the jurisdiction of the Agency that is
intended to have general applicability
and future effect on the behavior of
regulated parties, but which is not
intended to have the force or effect of
law in its own right and is not otherwise
required by statute to satisfy the
rulemaking procedures of the
Administrative Procedure Act.
Notice and Comment Not Required
This rule relates to internal Agency
management. Therefore, pursuant to
Section 553(a)(2) of Title 5 of the United
States Code (U.S.C.), notice of proposed
rulemaking and opportunity to
comment are not required.
Procedural Requirements
The Office of Management and Budget
(OMB) has determined that this
regulatory action does not meet the
criteria for significant regulatory action
E:\FR\FM\05JAR1.SGM
05JAR1
Agencies
[Federal Register Volume 86, Number 2 (Tuesday, January 5, 2021)]
[Rules and Regulations]
[Pages 229-250]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-27736]
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COMMODITY FUTURES TRADING COMMISSION
17 CFR Part 23
RIN 3038-AF05
Margin Requirements for Uncleared Swaps for Swap Dealers and
Major Swap Participants
AGENCY: Commodity Futures Trading Commission.
ACTION: Final rule.
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SUMMARY: The Commodity Futures Trading Commission (``Commission'' or
``CFTC'') is adopting amendments (``Final Rule'') to its margin
requirements for uncleared swaps for swap dealers (``SDs'') and major
swap participants (``MSPs'') for which there is not a prudential
regulator (``CFTC Margin Rule''). The Commission is amending the CFTC
Margin Rule to revise the calculation method for determining whether
certain entities come within the scope of its initial margin (``IM'')
requirements for uncleared swaps beginning in the last phase of the
phased compliance schedule, which starts on September 1, 2022, and the
timing for compliance with the IM requirements after the end of the
phased compliance schedule. These amendments align certain aspects of
the CFTC Margin Rule with the Basel Committee on Banking Supervision
and the International Organization of Securities Commissions' (``BSBS/
IOSCO'') Framework for margin requirements for non-centrally cleared
derivatives (``BCBS/IOSCO Framework''). The Commission is also amending
the CFTC Margin Rule to allow SDs and MSPs subject to the CFTC Margin
Rule to use the risk-based model calculation of IM of a counterparty
that is a CFTC-registered SD or MSP to determine the amount of IM to be
collected from the counterparty and to determine whether the IM
threshold amount for the exchange of IM has been exceeded such that
documentation concerning the collection, posting, and custody of IM
would be required.
DATES: This rule is effective February 4, 2021.
FOR FURTHER INFORMATION CONTACT: Joshua B. Sterling, Director, 202-418-
6056, [email protected]; Thomas J. Smith, Deputy Director, 202-418-
5495, [email protected]; Warren Gorlick, Associate Director, 202-418-
5195, [email protected]; or Carmen Moncada-Terry, Special Counsel, 202-
418-5795, [email protected], Market Participants Division,
Commodity Futures Trading Commission, Three Lafayette Centre, 1155 21st
Street NW, Washington, DC 20581.
SUPPLEMENTARY INFORMATION:
I. Background
Section 4s(e) of the Commodity Exchange Act (``CEA'' or ``Act'')
\1\ requires the Commission to adopt rules establishing minimum initial
and variation margin requirements for all swaps \2\ that are (i)
entered into by an SD or MSP for which there is no prudential regulator
\3\ (collectively, ``covered swap entities'' or ``CSEs'') \4\ and (ii)
not cleared by a registered derivatives clearing organization
(``uncleared swaps'').\5\ To offset the greater risk to the SD \6\ or
MSP \7\ and the financial system arising from the use of uncleared
swaps, these requirements must (i) help ensure the safety and soundness
of the SD or MSP and (ii) be appropriate for the risk associated with
the uncleared swaps held by the SD or MSP.\8\
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\1\ 7 U.S.C. 6s(e) (capital and margin requirements).
\2\ CEA section 1a(47), 7 U.S.C. 1a(47) (swap definition);
Regulation 1.3, 17 CFR 1.3 (further definition of a swap). A swap
includes, among other things, an interest rate swap, commodity swap,
credit default swap, and currency swap.
\3\ CEA section 1a(39), 7 U.S.C. 1a(39) (defining the term
``prudential regulator'' to include the Board of Governors of the
Federal Reserve System; the Office of the Comptroller of the
Currency; the Federal Deposit Insurance Corporation; the Farm Credit
Administration; and the Federal Housing Finance Agency). The
definition of prudential regulator further specifies the entities
for which these agencies act as prudential regulators. The
prudential regulators published final margin requirements in
November 2015. See generally Margin and Capital Requirements for
Covered Swap Entities, 80 FR 74840 (Nov. 30, 2015) (``Prudential
Margin Rule''). The Prudential Margin Rule is substantially similar
to the CFTC Margin Rule, including with respect to the CFTC's
phasing-in of margin requirements.
\4\ CEA section 4s(e)(1)(B), 7 U.S.C. 6s(e)(1)(B). SDs and MSPs
for which there is a prudential regulator must meet the margin
requirements for uncleared swaps established by the applicable
prudential regulator. CEA section 4s(e)(1)(A), 7 U.S.C. 6s(e)(1)(A).
\5\ CEA section 4s(e)(2)(B)(ii), 7 U.S.C. 6s(e)(2)(B)(ii). In
Regulation 23.151, the Commission further defined this statutory
language to mean all swaps that are not cleared by a registered
derivatives clearing organization or a derivatives clearing
organization that the Commission has exempted from registration as
provided under the CEA. 17 CFR 23.151.
\6\ CEA section 1a(49), 7 U.S.C. 1a(49) (swap dealer
definition); Regulation 1.3 (further definition of swap dealer).
\7\ CEA section 1a(32), 7 U.S.C. 1a(32) (major swap participant
definition); Regulation 1.3 (further definition of major swap
participant).
\8\ CEA section 4s(e)(3)(A), 7 U.S.C. 6s(e)(3)(A).
---------------------------------------------------------------------------
Pursuant to its rulemaking authority under section 4s(e), the
Commission in 2016 promulgated Regulations 23.150 through 23.161,
namely the CFTC Margin Rule, which requires CSEs to
[[Page 230]]
collect and post IM \9\ and variation margin (``VM'') \10\ for
uncleared swaps.\11\ In administering the CFTC Margin Rule, the
Commission has identified matters, further described below, that may
pose challenges in the implementation of the IM requirements.
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\9\ IM or initial margin is the collateral (calculated as
provided by Regulation 23.154) that is collected or posted in
connection with one or more uncleared swaps pursuant to Regulation
23.152. IM is intended to secure potential future exposure following
default of a counterparty (i.e., adverse changes in the value of an
uncleared swap that may arise during the period of time when it is
being closed out). See CFTC Margin Rule, 81 FR at 683.
\10\ VM or variation margin, as defined in Regulation 23.151, is
the collateral provided by a party to its counterparty to meet the
performance of its obligations under one or more uncleared swaps
between the parties as a result of a change in the value of such
obligations since the trade was executed or the last time such
collateral was provided. 17 CFR 23.151.
\11\ See generally Margin Requirements for Uncleared Swaps for
Swap Dealers and Major Swap Participants, 81 FR 636 (Jan. 6, 2016).
The CFTC Margin Rule, which became effective April 1, 2016, is
codified in part 23 of the Commission's regulations. 17 CFR 23.150
through 23.159, 23.161. In May 2016, the Commission amended the CFTC
Margin Rule to add Regulation 23.160, 17 CFR 23.160, providing rules
on its cross-border application. See generally Margin Requirements
for Uncleared Swaps for Swap Dealers and Major Swap Participants--
Cross-Border Application of the Margin Requirements, 81 FR 34818
(May 31, 2016).
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A. Calculation Method for Determining Whether Certain Entities Are
Subject to the IM Requirements and the Timing for Compliance With the
IM Requirements After the End of the Phased Compliance Schedule
Regulation 23.161 sets forth a schedule for compliance with the
CFTC Margin Rule, spanning from September 1, 2016, to September 1,
2022.\12\ Under the schedule, entities are required to comply with the
IM requirements in staggered phases,\13\ starting with entities with
the largest average aggregate notional amount (``AANA''), calculated on
a daily basis, of uncleared swaps, uncleared security-based swaps,
foreign exchange forwards, and foreign exchange swaps (``covered
products'') and then successively with lesser AANA. The last phase of
compliance, which begins on September 1, 2022, encompasses CSEs and
covered counterparties \14\ that did not come into the scope of the IM
requirements in prior phases, including financial end users (``FEUs'')
with material swaps exposure (``MSE'') \15\ of more than $8 billion in
AANA of covered products.\16\
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\12\ See Margin Requirements for Uncleared Swaps for Swap
Dealers and Major Swap Participants, 85 FR 71246 (Nov. 9, 2020)
(extending the phased compliance schedule for the CFTC's IM
requirements for uncleared swaps to September 1, 2022).
\13\ The schedule also addresses the VM requirements under the
CFTC Margin Rule, providing a compliance period of September 1,
2016, through March 1, 2017. See 17 CFR 23.161(a). The compliance
period (including a six-month extension to September 1, 2017,
through no-action relief) has long expired and all eligible entities
are required to comply with the VM requirements.
\14\ The term ``covered counterparty'' is defined in Regulation
23.151 as a financial end user with material swaps exposure or a
swap entity, including an SD or MSP, that enters into swaps with a
CSE. See 17 CFR 23.151.
\15\ Regulation 23.151 provides that MSE for an entity means
that the entity and its margin affiliates have an average daily
aggregate notional amount of uncleared swaps, uncleared security-
based swaps, foreign exchange forwards, and foreign exchange swaps
with all counterparties for June, July, or August of the previous
calendar year that exceeds $8 billion, where such amount is
calculated only for business days. A company is a ``margin
affiliate'' of another company if: (i) Either company consolidates
the other on a financial statement prepared in accordance with U.S.
Generally Accepted Accounting Principles, the International
Financial Reporting Standards, or other similar standards; (ii) both
companies are consolidated with a third company on a financial
statement prepared in accordance with such principles or standards;
or (iii) for a company that is not subject to such principles or
standards, if consolidation as described in paragraph (i) or (ii) of
this definition would have occurred if such principles or standards
had applied. 17 CFR 23.151.
\16\ The determination of MSE requires computing AANA,
calculated on a daily basis, of covered products over June, July and
August of the previous calendar year. For simplicity purposes, this
formulation will be referred to as ``daily average AANA'' to
contrast with month-end AANA, which is used for the calculation of
AANA under the BCBS/IOSCO Framework.
---------------------------------------------------------------------------
The method for determining which entities come within the scope of
the CFTC's IM requirements beginning in the last phase of compliance,
as set forth in the Commission's regulations, differs from the method
set out in the BCBS/IOSCO Framework.\17\ More specifically, the BCBS/
IOSCO Framework requires that in the last phase of implementation of
the IM requirements, which begins on September 1, 2022, entities with
[euro]8 billion \18\ in average month-end aggregate of notional amount
(``month-end AANA'') of non-cleared derivatives, including forex
forwards and swaps, during the period of March, April, and May of the
current year, to exchange IM beginning on September 1 of each year.
---------------------------------------------------------------------------
\17\ See generally BCBS/IOSCO, Margin requirements for non-
centrally cleared derivatives (July 2019), https://www.bis.org/bcbs/publ/d475.pdf (``2019 BCBS/IOSCO Framework'').
\18\ The U.S. adopted the BCBS/IOSCO threshold, but replaced the
8 billion euro figure with a dollar amount of $8 billion. As a
result, there is a small disparity in the threshold amounts given
the continuing fluctuation of the dollar-euro exchange rate. The
Final Rule does not address this issue.
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In contrast, under the CFTC Margin Rule, a CSE must exchange IM
with an FEU that has MSE with respect to uncleared swaps entered into
between the parties beginning in the last phase of compliance, which
starts on September 1, 2022. The MSE for the FEU is to be determined on
September 1, 2022, based on the FEU's daily average AANA during the
period of June, July, and August of the prior year. After the last
phase of compliance, the MSE for the FEU is to be determined on January
1 of each calendar year based on its daily average AANA during the
June, July, and August period of the prior year, with application of
the IM requirements, if the FEU has MSE, required to begin on January 1
of each year.
The BCBS/IOSCO Framework was originally promulgated in September
2013,\19\ and then revised in 2015.\20\ The 2015 version of the BCBS/
IOSCO Framework changed the calculation period of June, July, and
August, with an annual implementation date of December 1, to March,
April, and May of each calendar year, with an annual implementation
date of September 1. The CFTC Margin Rule incorporated the earlier 2013
version of the BCBS/IOSCO Framework by adopting the June, July, and
August calculation period for the annual calculation of MSE. As a
result, the Commission's existing regulations do not reflect the
calculation period of March, April, and May set forth in the revised
BCBS/IOSCO Framework published in March 2015.
---------------------------------------------------------------------------
\19\ See generally BCBS/IOSCO, Margin requirements for non-
centrally cleared derivatives (Sept. 2013), https://www.bis.org/publ/bcbs261.htm.
\20\ See generally BCBS/IOSCO, Margin requirements for non-
centrally cleared derivatives (March 2015), https://www.bis.org/bcbs/publ/d317.htm.
---------------------------------------------------------------------------
The Commission also departed from BCBS/IOSCO's month-end AANA
calculation for determining whether an entity is subject to the IM
requirements. The Commission decided to adopt instead daily AANA
averaging to determine whether an FEU has MSE, the finding of which
requires a CSE to exchange IM with the FEU, to gather a more
comprehensive assessment of the FEU's participation in the swaps
market, and to address the possibility that a market participant might
``window dress'' its exposure on an as-of date such as year-end, in
order to avoid the Commission's margin requirements.\21\
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\21\ 81 FR at 645. The potential for mutual funds to alter their
portfolios prior to disclosure (``window dressing'') has been
documented in the financial economics literature. See, e.g., Musto,
D. (1999). ``Investment decisions depend on portfolio disclosures.''
Journal of Finance 54, 935-952, or Agarwal, V., Gay G. and Ling, L.
(2011). ``Window dressing in mutual funds.'' Review of Financial
Studies, 27, 3133-3170.
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As a result, the Commission's current method for the annual
calculation of MSE, which was adopted in coordination with the U.S.
prudential
[[Page 231]]
regulators and is similar to the U.S. prudential regulators' method of
calculation, is not consistent with the most recent version of the
BCBS/IOSCO Framework. Nor is it consistent with requirements in other
major market jurisdictions, most of which adopted the 2015 BCBS/IOSCO
Framework's month-end AANA calculation using the period of March,
April, and May for the purposes of determining whether an entity is
subject to the IM requirements beginning in the last phase of
implementation.\22\
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\22\ See, e.g., Commission Delegated Regulation (EU) 2016/2251
Supplementing Regulation (EU) No. 648/2012 of the European
Parliament and of the Council of July 4, 2012 on OTC Derivatives,
Central Counterparties and Trade Repositories with Regard to
Regulatory Technical Standards for Risk-Mitigation Techniques for
OTC Derivative Contracts Not Cleared by a Central Counterparty (Oct.
4, 2016), Article 28(1), https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32016R2251&from=EN. Financial Services Agency of
Japan (JFSA) Cabinet Office Ordinance on Financial Instruments
Business (Cabinet Office Ordinance No. 52 of August 6, 2007), as
amended (March 31, 2016), Article 123(11)(iv); Office of the
Superintendent of Financial Institutions Canada (OSFI) Guideline No.
E-22, Margin Requirements for Non-Centrally Cleared Derivatives
(April 2020), Section 5, 71, https://www.osfi-bsif.gc.ca/Eng/Docs/e22.pdf.
---------------------------------------------------------------------------
In a report prepared by a subcommittee established by the CFTC's
Global Markets Advisory Committee (``GMAC''), discussed in more detail
below, the subcommittee reported that the differences in the methods
for determining when an entity comes within the scope of the IM
requirements and the timing of compliance after the last phase of
compliance may impose an undue burden on market participants' efforts
to comply with the CFTC's margin requirements.\23\ The report stated
that entities have to account for different compliance schedules and
set up and maintain separate processes for determining when they meet
the thresholds for IM compliance.\24\
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\23\ See Recommendations to Improve Scoping and Implementation
of Initial Margin Requirements for Non-Cleared Swaps, Report to the
CFTC's Global Markets Advisory Committee by the Subcommittee on
Margin Requirements for Non-Cleared Swaps, May 2020 at, 48-54,
https://www.cftc.gov/media/3886/GMAC_051920MarginSubcommitteeReport/download (``Margin Subcommittee Report'' or ``Report'').
\24\ Id.
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B. No-Action Letter No. 19-29 Concerning the Calculation of IM
The Commission's Division of Swap Dealer and Intermediary Oversight
\25\ issued CFTC No-Action Letter 19-29 in July 2019 in response to a
request for relief submitted by Cargill Incorporated (``Cargill''), a
CFTC-registered SD and CSE.\26\ Cargill sought no-action relief to be
able to use the risk-based model calculation of IM of a counterparty
that is an SD to determine the amount of IM to be collected from the
counterparty. Cargill stated that while its swap activity primarily
involved physical agricultural commodities with non-SD counterparties
seeking to mitigate commercial risk, it maintained positions that
required the collection of IM from SDs. Given the highly specialized
and discrete nature of its swaps business, mainly focusing on
commodities, Cargill opted to rely on the standardized IM table to
calculate IM rather than develop a risk-based model. Because the use of
the standardized table could generate higher amounts of IM than a risk-
based model, requiring its SD counterparties to post higher amounts of
IM, Cargill stated that SD counterparties might choose not to trade
with it.
---------------------------------------------------------------------------
\25\ Pursuant to a Commission plan of reorganization, the
Division of Swap Dealer and Intermediary Oversight was renamed
Market Participants Division (``MPD'') effective November 8, 2020.
The Division is referred to as MPD hereinafter.
\26\ CFTC Letter No. 19-29, Request for No-Action Relief
Concerning Calculation of Initial Margin (Dec.19, 2019) (``Letter
19-29''), https://www.cftc.gov/idc/groups/public/@lrlettergeneral/documents/letter/19-29.pdf.
---------------------------------------------------------------------------
Based on Cargill's representations, MPD stated that it would not
recommend enforcement action, subject to specified conditions, if
Cargill used the risk-based model calculation of IM of a counterparty
that is a CFTC-registered SD as the amount of IM that Cargill was
required to collect from the SD and to determine whether the IM
threshold amount of $50 million (``IM threshold amount'') \27\ had been
exceeded, which would trigger the requirement for documentation
concerning the posting, collection, and custody of IM collateral.
---------------------------------------------------------------------------
\27\ Under Regulation 23.154(a)(3), SDs and MSPs subject to the
Commission's regulations are not required to post or collect IM
until the initial margin threshold amount has been exceeded. See 17
CFR 23.154(a)(3). The term ``initial margin threshold amount'' is
defined in Regulation 23.151 to mean an aggregate credit exposure of
$50 million resulting from all uncleared swaps between an SD and its
margin affiliates (or an MSP and its margin affiliates) on the one
hand, and the SD's (or MSP's) counterparty and its margin affiliates
on the other. See 17 CFR 23.151.
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C. Market Participant Feedback
As previously mentioned, the CFTC's GMAC established a subcommittee
of market participants in January 2020 to consider issues raised by the
implementation of margin requirements for non-cleared swaps, identify
challenges associated with forthcoming implementation phases, and
prepare a report with recommendations. The subcommittee issued the
Margin Subcommittee Report and submitted the Report to the GMAC.\28\
The GMAC adopted the Report and recommended to the Commission that it
consider adopting the Report's recommendations.
---------------------------------------------------------------------------
\28\ See supra note 23.
---------------------------------------------------------------------------
Among other things, the Margin Subcommittee Report recommended the
alignment of the CFTC Margin Rule with the BCBS/IOSCO Framework with
respect to the method for calculating AANA for determining whether an
entity comes within the scope of the IM requirements and the timing of
compliance after the end of the phased compliance schedule.\29\ The
Report also recommended the codification of Letter 19-29.\30\
---------------------------------------------------------------------------
\29\ See Margin Subcommittee Report at 48-54.
\30\ See Margin Subcommittee Report at 34-36.
---------------------------------------------------------------------------
In response to feedback from market participants, in particular the
GMAC subcommittee's recommendations, the Commission issued a notice of
proposed rulemaking (``Proposal''), published in the Federal Register
on September 23, 2020, proposing amendments to the CFTC Margin Rule.
The Commission proposed to align the CFTC Margin Rule with the BCBS/
IOSCO Framework with respect to the method for calculating AANA for
determining whether certain entities come within the scope of the IM
requirements and the timing of compliance after the end of the phased
compliance schedule, noting that BCBS/IOSCO is the global standard
setter for margin requirements for non-centrally cleared derivatives
and that the proposed amendments would promote international
harmonization in the application of the IM requirements. The Commission
stated that the disjunction between the CFTC and BCBS/IOSCO concerning
the calculation of AANA and the timing of compliance with the IM
requirements does not further any regulatory purpose, noting, in
particular, the foreseeability of calculation errors resulting from
differences in the calculation methods.\31\
---------------------------------------------------------------------------
\31\ The possibility of calculation errors may be mitigated by
substituted compliance, as described in Regulation 23.160, if the
parties are non-U.S. entities and substituted compliance is
available, as the parties may be able to avail themselves of the
rules in the foreign jurisdiction and may therefore not face the
concern about different calculation methods. However, while the
changes to the method of calculation of AANA under the Final Rule
will align the CFTC's method of calculation with BCBS/IOSCO's
approach, the Commission acknowledges that the changes will result
in a divergence from the U.S. prudential regulators' approach, which
may increase the potential for calculation errors for entities
located in the United States.
---------------------------------------------------------------------------
The Commission also proposed to amend the CFTC Margin Rule to
permit CSEs to use the risk-based IM calculation of a counterparty that
is a
[[Page 232]]
CFTC-registered SD or MSP, in line with the terms of Letter 19-29. The
Commission stated that this amendment would promote legal certainty and
clarity, facilitating efforts by market participants to take the
application of the Commission's regulations into account in planning
their uncleared swaps business, without undermining the effectiveness
of the CFTC Margin Rule.
The Commission stated that the more widespread availability of the
relief provided by Letter 19-29 would promote efficient risk hedging by
smaller CSEs that offer swaps services to smaller entities that are
neither SDs nor MSPs. The Commission further noted that having the
ability to use the risk-based IM calculation of a counterparty that is
an SD or MSP would allow smaller CSEs to engage SDs and MSPs that
otherwise might be disincentivized from trading with the CSEs. That is
because for such CSEs, the single method of IM calculation available
may be the standardized IM table, as the CSEs, given the discrete and
limited nature of their swaps business, may find it uneconomical to
develop and maintain a proprietary model. As a result, swap entity
counterparties may be required to post higher amounts of IM to the
CSEs, as the table-based method of calculation does not account for
portfolio composition, diversification and hedges.
In the preamble to the Proposal, the Commission sought comment from
the public on the proposed amendments.\32\ The comment period for the
Proposal closed on October 23, 2020, and nine comment letters were
received: one from an SD in the gas and electric power industry; \33\
one from an SD in the oil and gas industry; \34\ one from a life
insurance trade association; \35\ one from a group of swaps and
financial industry advocates; \36\ one from a futures industry group
representing members active in the physical commodities markets; \37\
one from a managed fund industry group; \38\ one from a regulated funds
association; \39\ one from a representative of the asset management
industry; \40\ and one from a group of commercial firms in the energy
industry.\41\
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\32\ Margin Requirements for Uncleared Swaps for Swap Dealers
and Major Swap Participants, 85 FR 59702 (Sept. 23, 2020). The
comment letters for the Proposal are available at: https://comments.cftc.gov/PublicComments/CommentList.aspx?id=4157.
\33\ Letter from Jennifer Minnis, BP Energy Company (Oct. 23,
2020) (BPEC 10/23/2020 Letter).
\34\ Letter from Scott Earnest, Shell Trading Risk Management,
LLC (Oct. 23, 2020) (STRM 10/23/2020 Letter).
\35\ Letter from Michael Lovendusky, American Council of Life
Insurers (Oct. 23, 2020) (ACLI 10/23/2020 Letter).
\36\ Letter from Tara Kruse, James Kemp, and Kyle Brandon for
International Swaps and Derivatives Association (ISDA), Global
Foreign Exchange Division (GFXD) of the Global Financial Markets
Association, and Securities Industry and Financial Markets
Association, respectively, (collectively, ``Associations'') (Oct.
22, 2020) (Associations 10/22/2020 Letter).
\37\ Letter from Allison Lurton, Financial Industry Association
(Oct. 22, 2020) (FIA 10/22/2020 Letter).
\38\ Letter from Jennifer W. Han, Managed Funds Association
(Oct. 22, 2020) (MFA 10/22/2020 Letter).
\39\ Letter from Sarah A. Bessin, Investment Company Institute
(Oct. 22, 2020) (ICI 10/22/2020 Letter).
\40\ Letter from Jason Silverstein, Asset Management Group of
the Securities Industry and Financial Markets Association (Oct. 22,
2020) (SIFMA AMG 10/22/2020 Letter).
\41\ Letter from Alexander S. Holtan, Commercial Energy Working
Group (Oct. 22, 2020) (Working Group 10/22/2020 Letter).
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II. Final Rule, Summary of Comments and Commission Response
The Commission is adopting revisions to the method for calculating
AANA for determining whether an FEU has MSE and the timing for
compliance with the IM requirements after the end of the last phase of
compliance to align these aspects of the CFTC Margin Rule with the
BCBS/IOSCO Framework, as proposed. The Commission is also amending
Regulation 23.154(a), consistent with the terms of Letter 19-29, and
thus allowing CSEs to use the risk-based model calculation of IM of
counterparties that are CFTC-registered SDs or MSPs (``swap entities'')
\42\ to determine the amount of IM to be collected from such
counterparties.
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\42\ Regulation 23.151 defines the term ``swap entity'' as a
person that is registered with the Commission as an SD or MSP under
the CEA.
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All the comment letters received on the Proposal generally
expressed support for the proposed amendments \43\ and the Commission's
efforts to identify and address challenges in the implementation of the
CFTC's margin requirements as the phased compliance schedule nears
conclusion.\44\ Commenters expressed support for the Proposal even in
the absence of parallel action by the U.S. prudential regulators, while
urging the CFTC to continue coordination with the prudential regulators
and encourage corresponding amendments to the prudential regulators'
margin rules so that prudentially regulated SDs and MSPs and their
counterparties are not disadvantaged by requirements that are neither
globally nor domestically harmonized.\45\
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\43\ See ACLI 10/23/2020 Letter at 1; Associations 10/22/2020
Letter at 1; BPEC 10/23/2020 Letter at 2; FIA 10/22/2020 Letter at
2-3; ICI 10/22/2020 Letter at 1; MFA 10/22/2020 Letter at 1; SIFMA
AMG 10/22/2020 Letter at 1; STRM 10/23/2020 Letter at 1; Working
Group 10/22/2020 Letter at 3. A commenter stated that the Proposal
reflects the realities of the marketplace and further aligns the
U.S. regulations with the global regulators. See ACLI 10/23/2020
Letter at 2. Other commenters stated that the Proposal would enable
the implementation of the IM requirements in a practical and
efficient manner, as market participants prepare for forthcoming
compliance dates, reducing complexity and burden associated with
implementation and would foster greater liquidity and contribute to
the lowering of hedging costs, particularly in the last phases of
the compliance schedule. See BPEC 10/23/2020 Letter at 2; MFA 10/22/
2020 Letter at 2.
\44\ While expressing support for the Proposal, commenters asked
the Commission to consider other issues raised by the CFTC Margin
Rule, including whether to exclude commodity swaps from the CFTC's
uncleared margin requirements, the need to harmonize the definition
of financial entity under section 2(h)(7) of the CEA and the
definition of financial end user under the CFTC Margin Rule, whether
treasury affiliates of an SD should be exempt from the CFTC's
uncleared margin requirements, and other topics raised in prior
communications to the Commission. See FIA 10/22/2020 Letter at 2;
MFA 10/22/2020 Letter at 2. The commenters also asked the Commission
to consider other recommendations from the Margin Subcommittee
Report not addressed in the Proposal. See ACLI 10/23/2020 Letter at
2; Associations 10/22/2020 Letter at 1; SIFMA AMG 10/22/2020 Letter
at 4. The Commission will not currently act on these additional
matters as they fall outside the scope of the Proposal. The
Commission is aware of these issues and will continue to consider
them and monitor pertinent developments to determine whether further
Commission action concerning these matters is appropriate in the
future.
\45\ ACLI 10/23/2020 Letter at 1; Associations 10/22/2020 Letter
at 4; MFA 10/22/2020 Letter at 2.
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A. Regulation 23. 151--Amendments to MSE Definition
As noted above, a CSE must exchange IM with respect to uncleared
swaps with a counterparty that is an FEU that has MSE beginning in the
last phase of the phased compliance schedule, which will start on
September 1, 2022.\46\ Regulation 23.151 provides that an entity has
MSE if it has more than $8 billion in AANA, calculated on a daily
basis, during June, July, and August of the prior year.\47\ An FEU that
has MSE based on the calculation of AANA over June, July, and August of
2021 would come within the scope of the IM requirements beginning on
September 1, 2022. In subsequent calendar years after September 1,
2022, however, because the base year for calculating AANA is the prior
year, the annual determination of MSE, which triggers the applicability
of the IM requirements, would be January 1 of each year,\48\ using the
[[Page 233]]
AANA for June, July, and August of the prior year. If the FEU has MSE
on January 1 of a given year, the FEU would come within the scope of
the IM requirements on January 1 of such year. As such, a CSE would be
required to exchange regulatory IM beginning on such January 1 for its
uncleared swaps with such FEU.
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\46\ See 17 CFR 23.161(a)(7) (requiring CSEs to comply with the
CFTC's IM requirements with respect to uncleared swaps with
counterparties that are FEUs with MSE beginning on September 1,
2022).
\47\ For definition of MSE, see supra note 15.
\48\ January 1 is not explicitly set out in the Commission's
regulations as the determination date for MSE after the last phase
of compliance. However, absent the Final Rule, Regulation
23.161(a)(7) (addressing the last phase of compliance and the timing
of compliance going forward) and the definition of MSE in Regulation
23.151 can be reasonably read together to set January 1 as the MSE
determination date. See 17 CFR 23.151; 17 CFR 23.161(a)(7).
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As proposed, the Commission is amending the definition of MSE in
Regulation 23.151 by replacing ``June, July and August of the previous
calendar year'' with ``March, April and May of that year.'' The period
for calculating AANA for determining whether an FEU has MSE will thus
be March, April, and May of ``that year.'' ``That year'' will be
understood to mean the year the MSE status for an FEU is assessed for
the purpose of determining whether a CSE that enters into uncleared
swaps with the FEU is required to exchange IM with the FEU.
The Commission is also amending the definition of MSE to set
``September 1 of any year'' as the determination date for MSE. Under
the current requirements, absent a rule change, the MSE for an FEU
would have to be determined first on September 1, 2022, which would
begin the last phase of compliance under the phased compliance
schedule, and subsequently, after the end of the phased compliance
schedule, on January 1 of each year. Under the Final Rule, the date for
the determination of MSE after the end of the phased compliance
schedule will shift from January 1 to September 1. The change in the
MSE determination date to September 1 of each year effectively sets the
timing for compliance with the IM requirements on September 1 after the
end of the phased compliance schedule with respect to uncleared swaps
entered into by a CSE and an FEU with MSE.
The shift of the MSE determination date from January 1 to September
1 may defer for nine months to September 1, 2023, the obligation to
exchange IM for a firm that absent the rule change would have been
subject to the IM requirements on January 1, 2023. Uncleared swaps
entered into by the firm during the nine-month deferral period will be
deemed legacy swaps, or uncleared swaps exempt from the IM
requirements.\49\ As a result, in 2023, less collateral may be
collected for uncleared swaps, which could render uncleared swap
positions riskier and increase the risk of contagion and systemic risk.
The Commission, however, notes that because the deferral period will
affect entities with lower AANAs than entities brought into scope in
earlier phases of the IM compliance schedule, the potential
uncollateralized risk would be mitigated, becoming a lesser concern,
particularly because the proposed change in the MSE determination date
will draw the Commission's rules closer to BCBS/IOSCO's approach,
promoting international harmonization.
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\49\ Pursuant to Regulation 23.161, the compliance dates for the
IM and VM requirements under the CFTC Margin Rule are staggered
across a phased schedule that extends from September 1, 2016, to
September 1, 2022. The compliance period for the VM requirements
ended on March 1, 2017 (though the CFTC and other regulators
provided guidance permitting a six-month grace period to implement
the requirements following the implementation date), while the IM
requirements continue to phase in through September 1, 2022. An
uncleared swap entered into prior to an entity's IM compliance date
is a ``legacy swap'' that is not subject to the IM requirements. See
CFTC Margin Rule, 81 FR at 651 and Regulation 23.161. 17 CFR 23.161.
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Conversely, the change in the MSE determination date could also
result in requiring certain entities to post and collect IM that
otherwise would not have been required to do so. This could occur when
an FEU meets the MSE threshold in the last phase of compliance
beginning on September 1, 2022, but falls below the threshold by
January 1, 2023, because the AANA for June, July, and August of the
prior year (i.e. 2022) is below $8 billion. In such case, under the
current rule, a CSE would no longer be required to exchange IM with
such FEU beginning on January 1, 2023. However, the change in the MSE
determination date to September 1, as adopted, will require the CSE to
continue to exchange IM with the FEU through September 1, 2023, as no
determination of MSE status will be required between September 1, 2022,
and September 1, 2023, and, as a result, the CSE will be required to
exchange IM with the FEU for nine months longer than the January 1,
2023 MSE determination date would have required.
These amendments to the definition of MSE will have the effect of
reducing the time frame that FEUs and their CSE counterparties will
have to prepare for compliance with the IM requirements. Under the
current rule being amended, CSEs would have been required to exchange
regulatory IM with counterparties that are FEUs with MSE beginning on
September 1, 2022, which starts the last phase of the phased compliance
schedule. The MSE for the FEU would have been determined using the AANA
for June, July, and August of the prior year (i.e., 2021). As a result,
for the last phase of compliance in 2022, a CSE and FEU would have had
at least twelve months to prepare for compliance with the IM
requirements. By contrast, under the Final Rule, a CSE and FEU, for the
last phase of compliance in 2022, will have only 3 months to prepare
for IM compliance because MSE will be required to be determined using
the AANA for March, April, and May of the current year (i.e., 2022).
Also, under the Final Rule, after the last phase of compliance
under the phased compliance schedule, the date for determining MSE for
an FEU will be September 1 of each year, and the AANA calculation
period for determining whether an FEU has MSE will be March, April, and
May of such year. As a result, an FEU with MSE and its CSE counterparty
will have three months to prepare in advance of compliance with the IM
requirements, whereas under the current rule being amended, such
parties would have had four months because MSE would have been required
to be determined on January 1 based on the AANA for June, July, and
August of the prior year.
In its Margin Subcommittee Report, the GMAC subcommittee
acknowledged that the change in the period for the calculation of AANA
and the change in the MSE determination date from January 1 to
September 1 would reduce the time frame for preparing for compliance
with the IM requirements.\50\ Nevertheless, the subcommittee expressed
support for the changes, noting that the changes would align the CFTC's
margin requirements with the BCBS/IOSCO Framework.\51\
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\50\ See Margin Subcommittee Report at 49.
\51\ Id. (The GMAC subcommittee stated that the divergence
between the U.S. and international requirements ``creates complexity
and confusion, and leads to additional effort, cost and compliance
changes for smaller market participants that are generally subject
to margin requirements in multiple global jurisdictions.'').
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The Commission is also amending the definition of MSE to replace
``average daily aggregate notional amount,'' or daily average AANA,
with ``average month-end aggregate notional amount,'' for calculating
AANA to determine whether an entity has MSE. In adopting the CFTC
Margin Rule, the Commission acknowledged that month-end AANA averaging
for the calculation of AANA would be consistent with BCBS/IOSCO's
approach. Nonetheless, the CFTC, along with the U.S prudential
regulators, decided to adopt daily AANA averaging for the calculation
of AANA to determine MSE. In the preamble to the CFTC Margin Rule, the
[[Page 234]]
Commission explained that daily average AANA would provide a more
comprehensive assessment of an FEU's participation in the swaps market
in determining whether the FEU has MSE and would address the
possibility of window dressing of exposures by market participants that
might seek to avoid the CFTC's margin requirements.\52\
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\52\ See supra note 21.
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In its Report, the GMAC subcommittee stated that the use of daily
average AANA for the calculation AANA entailed more work for smaller
counterparties and that such method of calculation was only used in the
United States, noting that in the United States, daily AANA averaging
over the three-month calculation period for Phase 5 \53\ required 64
observations while global determinations based on month-end AANA
required only three observations.\54\ The Report further stated that
month-end AANA averaging over the three-month calculation period, by
accounting for three periodic dates on which AANA would be calculated,
would mitigate the risk that market participants would adjust exposures
to avoid the CFTC's margin requirements, and that it would be neither
practicable nor financially desirable for parties to tear-up their
positions on a recurring basis prior to each month-end AANA
calculation, as it would interfere with their hedging strategies and
cause them to incur realized profit and loss.\55\
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\53\ As used in the Margin Subcommittee Report, Phase 5 meant
the phase of compliance with the CFTC's IM requirements that started
on September 1, 2020, comprising covered swap entities and covered
counterparties with AANA between $750 billion and $50 billion. Since
the issuance of the Report, the IM compliance schedule has been
revised to defer the beginning of Phase 5 to September 1, 2021. See
17 CFR 23.161(a)(6).
\54\ Margin Subcommittee Report at 52.
\55\ Id.
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The Commission notes that the adoption of a month-end AANA
methodology for the calculation of AANA to determine MSE will align the
CFTC's approach with the BCBS/IOSCO Framework and the approach adopted
by other major market jurisdictions. The Commission does acknowledge
that such methodology for calculating AANA could raise the risk that
market participants that are counterparties to CSEs may ``window
dress'' their exposures by adjusting their exposures as they approach
the month-end date. By doing so, an FEU would no longer have to post
and collect IM with all CSEs for all its uncleared swaps for at least
twelve months from the date on which compliance with the IM
requirements would have been initially required.\56\
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\56\ Under the Final Rule, the MSE calculation will be made
annually on September 1 of each year and will be in effect for the
next twelve months after that date.
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To address this concern, the Commission has determined to revise
the proposed rule text to include anti-evasion language prohibiting
activities not carried out in the ordinary course of business and
willfully designed to circumvent the month-end AANA calculation by, for
example, altering swap book composition to evade meeting the definition
of MSE and thus coming within the scope of the CFTC's IM requirements.
In addition, the Commission points to the availability of other tools
to address the risk of ``window dressing.'' Regulation 23.402(a)(ii)
requires CSEs to have written policies and procedures to prevent their
evasion, or participation in or facilitation of an evasion, of any
provision of the CEA or the Commission's regulations.\57\ Also, section
4b of the CEA prohibits any person entering into a swap with another
person from cheating or defrauding or willfully deceiving or attempting
to deceive the other person.\58\
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\57\ 17 CFR 23.402(a)(ii).
\58\ 7 U.S.C. 6b.
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The Commission further notes that replacing daily average AANA with
month-end AANA for determining MSE could result in an AANA calculation
that is not fully representative of an entity's participation in the
swaps markets. Under the current definition of MSE, AANA must be
calculated counting uncleared swaps, uncleared security-based swaps,
foreign exchange forwards, or foreign exchange swaps. Under the Final
Rule, which provides for the calculation of AANA by averaging month-end
AANA during the three-month calculation period, some of the financial
products that are required to be included in the calculation, because
of their terms, such as tenure and time of execution, may be
undercounted or excluded.\59\
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\59\ For example, the Commission observes that certain physical
commodity swaps, such as electricity and natural gas swaps, are
products for which a month-end AANA calculation might not provide a
comprehensive assessment of the full scope of an FEU's exposure to
those products.
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The Commission believes that the notional amount associated with
products that may be excluded from the AANA calculation, as a result of
the change to month-end AANA averaging for the calculation of AANA, may
be relatively low and that the products' contribution to the AANA
calculation for the purpose of determining MSE may be insignificant. In
this regard, in an analysis undertaken by the Commission's Office of
the Chief Economist (``OCE'') on a sample of days, the OCE estimated
(setting aside the window dressing issue) that calculations based on
end-of-month AANA would yield fairly similar results as calculations
based on the current daily average AANA approach. Based on 2020 swap
data, the OCE estimated that 492 entities of the 514 entities that
would have come into scope in the last phase of the IM compliance
schedule (with AANA between $8 and $50 billion) based on the current
daily AANA calculation methodology would also come into scope under the
month-end AANA calculation methodology being adopted herein. Put
differently, all but 22 of the entities that would be above MSE under
the existing methodology would also be above MSE under the month-end
AANA methodology. In addition, there are 20 entities that would be in
scope under the month-end AANA methodology, but would not be in scope
under the existing methodology, so that the aggregate number of
entities under the two methodologies differs only by two.
In the aggregate, the two methodologies capture quite similar sets
of entities. In addition, the entities that fall out of scope applying
the month-end AANA methodology tend to be among the smallest coming
into IM compliance in the last phase of compliance. That is, entities
that would have been in-scope under the current daily average AANA
methodology but not the month-end AANA methodology average $6.95
billion in AANA, compared to $20 billion for all entities coming into
scope in the last phase of compliance.\60\
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\60\ Note that the OCE calculation excludes commodity swaps, and
the examples of products that end-of-month calculations may
undercount tend to be commodity swaps, such as natural gas and
electricity swaps. Overall, commodity swaps tend to represent less
than 1% of all swap trades. See BIS Statistic Explorer, Global OTC
derivatives market (July 30, 2020), https://stats.bis.org/statx/srs/table/d5.1?f=pdf.
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Based on the OCE analysis discussed above, in the Commission's
view, switching from daily average AANA to month-end AANA for the
purpose of determining MSE would likely have a limited impact on the
protections provided by the CFTC Margin Rule. In addition, the
Commission believes that the anti-evasion language being incorporated
into the rule text by this Final Rule mitigates the window dressing
concerns.\61\
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\61\ The prudential regulators have not indicated whether they
intend to amend their margin requirements consistent with the BCBS/
IOSCO Framework and the amendments to the definition of MSE
discussed herein. Also of note, the U.S. Securities and Exchange
Commission (``SEC'') has adopted a different approach that does not
use MSE for identifying entities that come within the scope of the
SEC margin requirements. See Capital, Margin, and Segregation
Requirements for Security-Based Swap Dealers and Major Security-
Based Swap Participants and Capital and Segregation Requirements for
Broker-Dealers, 84 FR 43872 (Aug. 22, 2019).
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[[Page 235]]
Commenters expressed strong support for the amendments to the MSE
definition in Regulation 23.151 to align the method for calculating
AANA and the timing of compliance with the IM requirements after the
end of the last phase of compliance with the BCBS/IOSCO Framework.\62\
Commenters stated that the amendments would help smaller market
participants overcome unnecessary operational challenges. \63\ The
commenters also stated that the amendments would help entities that
conduct swaps business across jurisdictions.\64\ A commenter stated
that the differences in the AANA calculation methods and the timing of
compliance burden market participants, such as asset managers, in
determining whether clients are in scope in the later phases of the
compliance schedule and create a complex and confusing ongoing
monitoring process.\65\
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\62\ See ACLI 10/23/2020 Letter at 1; Associations 10/22/2020
Letter at 2; FIA 10/22/2020 Letter at 4; MFA 10/22/2020 Letter at 1;
SIFMA AMG 10/22/2020 Letter at 2; Working Group 10/22/2020 Letter at
3.
\63\ SIFMA AMG 10/22/2020 Letter at 1; ACLI 10/23/2020 Letter at
2.
\64\ Id.
\65\ Id.
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Another commenter noted that the U.S. is the only jurisdiction that
requires using the three-month period of June, July and August of the
preceding year for the calculation of AANA, and the only jurisdiction
besides Brazil that requires AANA to be calculated using daily
averaging rather than month-end averaging over the three-month
period.\66\ The commenter stated that a jurisdiction-specific approach
creates additional effort for smaller counterparties coming into scope
in the later phases of the compliance schedule, which need to run
separate AANA calculations using different time periods and methods and
need to provide separate notifications to their counterparties
concerning the application of the IM requirements.\67\ The commenter
stated that according to its estimates, 775 counterparties with a total
of 5,443 relationships could come into the scope of global IM
requirements in the last phase of compliance beginning September 1,
2022, and that over 74% of those counterparties will qualify for the IM
requirements with less than EUR 25 billion AANA and therefore may be in
a position to recalculate their AANA each year to affirm the continued
application of the IM requirements.\68\ In addition, hundreds of other
counterparties that do not initially breach the $8 billion threshold
will need to conduct annual AANA calculations to confirm whether they
have come into scope of the IM requirements in one or more
jurisdictions.\69\ The commenter concluded by stating that
jurisdictional differences are difficult to track and manage, leading
to inadvertent errors or omissions in the calculations and the
application of IM requirements, and that the differences could
interfere with the ability to apply substituted compliance, since a
party may become subject to the IM requirements under the CFTC Margin
Rule on a different date in the U.S. as they will in other global
jurisdictions.\70\
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\66\ Associations 10/22/2020 Letter at 2.
\67\ Id.
\68\ Id.
\69\ Id.
\70\ Id.
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Addressing concerns that the month-end AANA methodology for
determining MSE may result in window dressing, a commenter stated that
it was not a realistic risk, as it would take considerable effort for
parties to unwind their positions and then reestablish the position on
a recurring basis over the three-month period, which would interrupt
their hedging strategies and require the counterparties to absorb the
cost of realized profit and loss changes.\71\ Another commenter echoed
these arguments, noting that tearing up positions may interfere with
hedging and cause portfolios to incur realized profit and loss
changes.\72\ A commenter, speaking on behalf of the managed fund
industry, stated that adjustments to swaps positions to benefit from
the month-end AANA methodology would be contraindicated in the case of
an investment adviser to a regulated fund because the investment
adviser is a fiduciary to the fund that is legally obligated to manage
the fund's assets in accordance with that fund's investment strategy,
policies, and limitations.\73\ Adjusting swap exposures over the course
of three periodic dates solely to avoid IM could impose transaction
costs and inhibit a fund's ability to manage its portfolio risk, which
may be inconsistent with the adviser's duty to act in the best interest
of its clients.\74\ Another commenter representing the life insurance
industry stated that the proposed changes to the calculation of AANA
would be unlikely to change the life insurers' market behavior given
that life insurers are subject to significant state regulation of their
derivatives activities.\75\
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\71\ Id.
\72\ SIFMA AMG 10/22/2020 Letter at 3.
\73\ ICI 10/22/2020 Letter at 5.
\74\ Id.
\75\ ACLI 10/23/2020 Letter at 2.
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While recognizing that practical considerations, as discussed by
the commenters, may reduce the risk of window dressing, the Commission
believes that it should seek to remove any potential incentives that
may lead to the manipulation of swaps exposures to avoid meeting the
definition of MSE and thus coming within the scope of the margin
requirements. Accordingly, as discussed further above, the Commission
is revising the proposed rule text to incorporate an anti-evasion
provision prohibiting activities willfully designed to avoid the month-
end AANA calculation.
With respect to the divergence between the CFTC and the U.S.
prudential regulators regarding the method for calculating AANA for
determining whether an entity has MSE and the timing of compliance
after the last phase of the compliance schedule, commenters stated that
the CFTC should proceed with the amendments even if the prudential
regulators do not make corresponding changes to their margin rules
while also encouraging the prudential regulators to align with the
global standards.\76\ A commenter further noted that given that most
affected FEUs belong to a corporate group that has to calculate AANA
for multiple jurisdictions, a deviation between the CFTC and prudential
regulators would not increase the regulatory burden for most FEUs as
they would already be calculating AANA under the CFTC/prudential
regulator approach and the BCBS/IOSCO approach.\77\
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\76\ SIFMA AMG 10/22/2020 Letter at 3; Working Group 10/22/2020
Letter at 2.
\77\ Working Group 10/22/2020 Letter at 3.
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After reviewing the comments, the Commission has confirmed the
rationale articulated for proposing the amendments to the definition of
MSE in Regulation 23.151 and is therefore adopting the amendments as
proposed, subject to the change to the proposed rule text to add the
anti-evasion provision discussed in more detail above. The Commission
believes, as discussed in the preamble to the Proposal, that the
amendments will eliminate the need to maintain separate schedules and
processes for the computation of AANA and reduce the burden and cost of
compliance with the
[[Page 236]]
IM requirements.\78\ In addition, section 752(a) of the Dodd-Frank Act
calls on the CFTC to ``consult and coordinate'' with respect to the
establishment of consistent international standards.\79\ As such, the
Commission believes that amending the definition of MSE, as proposed,
is appropriate to harmonize its compliance schedule with that of BCBS/
IOSCO and, for entities engaging in swaps with CSEs, eliminates a
disjunction that could risk calculation errors and may hinder
compliance with the IM requirements.
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\78\ The Commission acknowledges that the burdens on market
participants will not be fully eliminated, and in fact, may
increase, for those entities that enter into uncleared swaps with
SDs and MSPs that are subject to the U.S. prudential regulators'
margin requirements for uncleared swaps and come within the scope of
the prudential regulators' margin regime, as the prudential
regulators have not revised their rules consistent with the rule
changes being adopted herein. Any further discussion in this Final
Rule of the benefits of not needing to maintain separate schedules
and processes is limited to entities not also undertaking swaps with
U.S. prudentially regulated SDs.
\79\ See section 752(a) of the Dodd-Frank Wall Street Reform and
Consumer Protection Act, Public Law 111-203, 124 Stat. 1376 (2010).
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B. Regulation 23.154--Alternative Method of Calculation of IM
As originally adopted, the CFTC Margin Rule requires CSEs to
collect and post IM with covered counterparties, including CFTC-
registered SDs or MSPs.\80\ Regulation 23.154(a) directs CSEs to
calculate, on a daily basis, the IM amount to be collected from covered
counterparties.\81\ CSEs have the option to calculate the IM amount by
using either a risk-based model or the standardized IM table set forth
in Regulation 23.154(c)(1).\82\ For a CSE that elects to use a risk-
based model to calculate IM, Regulation 23.154(b)(1) requires the CSE
to obtain the written approval of the Commission or a registered
futures association \83\ to use the model to calculate IM required by
the Commission's margin requirements for uncleared swaps.\84\
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\80\ See 17 CFR 23.152.
\81\ See 17 CFR 23.154(a).
\82\ See id.
\83\ See 17 CFR 23.154(b)(1)(i). In this context, the term
``registered futures association'' refers to the National Futures
Association (``NFA''), which is the only futures association
registered with the Commission.
\84\ See 17 CFR 23.154(b)(1)(i).
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After reviewing the comments on the Proposal, the Commission is
adopting the amendment to Regulation 23.154(a) as proposed, subject to
some clarifications further discussed below. More specifically, the
Commission is amending Regulation 23.154(a) by adding new paragraph
(a)(5). Paragraph (a)(5) permits a CSE that enters into uncleared swaps
with a CFTC-registered SD or MSP, or a swap entity, to use the swap
entity's risk-based model calculation of IM to determine the amount of
IM that must be collected from such counterparty and to determine
whether the IM threshold amount has been exceeded, which would require
documentation concerning the posting, collection, and custody of IM.
This amendment to Regulation 23.154(a) modifies, consistent with
Letter 19-29, the requirement that CSEs calculate the amount of IM to
be collected from a swap entity counterparty by giving CSEs the option
to rely on such counterparty's risk-based IM calculation. The
Commission acknowledges that as a result, some CSEs may forgo the
adoption of a risk-based model to avoid the cost and burden associated
with developing and maintaining such a model. The Commission notes that
without a model to compute its own IM, a CSE may lack reasonable means
to verify the IM amount provided by its counterparty or may fail to
recognize shortfalls in the IM calculation or flaws in the
counterparty's risk-based model. As such, the CSE may collect
insufficient amounts of IM to offset counterparty risk. In addition,
the Commission acknowledges the swap entity's potential conflict of
interest in calculating IM for the CSE, \85\ as it may be biased in
favor of calculating and posting lower amounts of IM to the CSE.
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\85\ The Commission, however, notes that the potential for
conflict may be mitigated as the swap entity, as a CFTC-registered
SD or MSP, would be subject to Regulation 23.600, which requires SDs
and MSPs to establish a risk management program for the management
and monitoring of risk, including credit and legal risk, associated
with their swap activities. See 17 CFR 23.600.
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Based on the foregoing concerns, the Commission is adopting, as
part of the new paragraph (5) in Regulation 23.154(a), two of the
conditions set forth in Letter 19-29.\86\
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\86\ As previously discussed, Letter 19-29 permits Cargill to
use the risk-based IM calculation of a counterparty that is a CFTC-
registered SD to determine the amount of IM to be collected from
such counterparty, subject to specified conditions discussed in more
detail below.
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First, consistent with Letter 19-29, paragraph (a)(5) requires that
the risk-based model used by the CSE's swap entity counterparty for the
calculation of IM satisfy the requirements of Regulation 23.154(b)
(requiring the approval of the use of the model by either the
Commission or the NFA), or that the model be approved by a prudential
regulator.\87\
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\87\ The prudential regulators have not amended their margin
requirements for uncleared swaps consistent with the amendment to
Regulation 23.154(b) discussed herein. As such, the CFTC's margin
requirements will diverge from the prudential regulators' approach.
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Second, paragraph (a)(5) permits CSEs to use the risk-based model
calculation of IM of a swap entity counterparty only if the uncleared
swaps for which IM is calculated are entered into for the purpose of
hedging the CSE's own risk. The risk to be hedged is understood to be
the risk that a CSE would incur when entering into swaps with non-swap
entity counterparties. By limiting the application of this alternative
method of calculation of IM to only uncleared swaps entered into for
the purpose of hedging risk arising from swaps entered into with non-
swap entities, the Commission ensures the narrow application of this
method of calculation.
The Commission contrasts the risk of customer-facing swaps with the
risk that CSEs incur when entering into a swap in a dealing capacity
``to accommodate the demand'' of a swap entity counterparty.\88\ The
Commission believes that it would be inappropriate to allow a CSE to
use the IM calculation of the swap entity counterparty in this latter
case. The Commission notes that the latter case (i.e., where the CSE is
acting in a dealing capacity for a counterparty that is itself
calculating IM) would occur in the inter-dealer market for swaps. The
Commission believes that a CSE participating in the inter-dealer market
in a dealing capacity should have the capacity to develop, implement,
and use an approved risk-based model.
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\88\ See Further Definition of ``Swap Dealer,'' ``Security-Based
Swap Dealer,'' ``Major Swap Participant,'' ``Major Security-Based
Swap Participant'' and ``Eligible Contract Participant,'' 77 FR
30596, 30608 (May 23, 2012) (noting that a distinguishing
characteristic of swap dealers is being known in the industry for
their availability to accommodate demand for swaps).
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The Commission expects that new paragraph (a)(5) would be relied
upon by CSEs that opt not to develop and obtain approval to use a risk-
based model for the calculation of IM but instead elect to use the
table-based calculation described in Regulation 23.154(c) for swaps
with non-swap entity counterparties. Such CSEs, in the course of their
uncleared swaps business, would enter into uncleared swaps mostly with
end-user, non-swap entity counterparties, and hedge the risk of those
swaps with other uncleared swaps entered into with swap entity
counterparties. The CSEs would exchange IM with the swap entity
counterparties for the uncleared swaps entered into for their own
hedging, as the swaps would be subject to the CFTC
[[Page 237]]
IM requirements.\89\ Because maintaining a risk-based model imposes a
disproportionate burden on the CSEs relative to the discrete and
limited nature of their uncleared swap activities, the CSEs would
generally not have a model for the calculation of IM, and thus new
paragraph (a)(5) will permit them to use the risk-based model
calculation of their swap entity counterparties to determine the amount
of IM to be collected from such counterparties.
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\89\ See generally 17 CFR 23.152 (requiring CSEs to exchange IM
with swap entity counterparties for their uncleared swaps).
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Letter 19-29, in addition to the foregoing conditions, requires
that Cargill, prior to using the risk-based model calculation of IM of
a swap entity counterparty, agree with its counterparty in writing that
the IM calculation be provided to Cargill in a manner and time frame
that would allow Cargill to comply with the CFTC Margin Rule and other
applicable Commission regulations, and that the calculation be used to
determine the amount of IM to be collected from the counterparty and to
determine whether the IM threshold amount has been exceeded, which
would require documentation addressing the posting, collection, and
custody of IM. While the Commission acknowledges that the application
of the alternative method of calculation of IM adopted herein could
potentially result in the miscalculation or underestimation of IM, it
believes that the safeguards in Part 23 of the Commission's
regulations, such as the documentation requirements in Regulations
23.158 and 23.504, address this concern.
Regulation 23.158(a) requires CSEs to comply with the documentation
requirements set forth in Regulation 23.504.\90\ Regulation
23.504(b)(4)(i) requires CSEs to have written documentation reflecting
the agreement with a counterparty concerning methods, procedures,
rules, and inputs for determining the value of each swap at any time
from execution to the termination, maturity, or expiration of such swap
for the purposes of complying with the margin requirements under
section 4s(e) of the Act and regulations under this part.\91\
Regulation 23.504(b)(3)(i) also provides that the documentation shall
include credit support arrangements, including initial and variation
margin requirements, if any.\92\
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\90\ 17 CFR 23.158(a).
\91\ 7 U.S.C. 6s(e);17 CFR 23.504(b)(4)(i).
\92\ Regulation 23.504(b)(1) further provides that the
documentation should include all terms governing the trading
relationship between an SD or MSP and its counterparty, including
without limitation, terms addressing payment obligations, netting of
payments, events of default or other termination events, calculation
and netting of obligations upon termination, valuation, and dispute
resolution. 17 CFR 23.504(b)(1).
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Letter 19-29 also sets forth two conditions that are designed to
ensure that Cargill will undertake adequate risk management with
respect to its uncleared swaps. The Commission notes that the
availability of the alternative method of calculation of IM may lead
some CSEs to forgo the adoption of a proprietary risk-based model for
the calculation of IM. Without a proprietary risk-based model, CSEs may
not be able to precisely calculate IM, or the potential future exposure
of uncleared swaps, which could undercut a CSE's ability to adequately
manage the risk of its swaps. However, the Commission believes that
CSEs' risk management obligations under the CEA and the Commission's
regulations provide adequate safeguards to address this concern. In
this regard, the Commission notes that section 4s(j)(2) of the CEA
requires SDs and MSPs, including CSEs, to establish robust and
professional risk management systems adequate for the management of
their day-to-day swaps business \93\ and that Regulation 23.600,
consistent with the mandate under the CEA, requires SDs and MSPs to
establish and maintain a risk management program to monitor and manage
risk associated with their swap activities.\94\
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\93\ 7 U.S.C. 6s(j)(2).
\94\ See 17 CFR 23.600.
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To obtain relief under Letter 19-29, Cargill also must ``keep track
of exceedances'' \95\ and ``[if] the exceedances indicate that the
Approved IM Calculation Method fails to meet the relevant regulators'
standards, [Cargill] must take appropriate steps to ensure compliance
with its risk management obligations and address exceedances with its
SD counterparty.'' \96\ The purpose of this requirement is to ensure
that Cargill monitors, identifies, and addresses potential shortfalls
in the amount of IM generated by the counterparty. Cargill must also
report to the CFTC ``any adjustments and enhancements . . . applied to
the amount of IM calculated pursuant to the Approved IM Calculation
Method to ensure [Cargill's] collection of adequate amounts of IM.''
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\95\ Exceedances are price movements above the amount of IM
computed using a risk-based model that complies with the
Commission's regulations.
\96\ Letter 19-29 at 4.
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The Commission notes that if a CSE declines to adopt a proprietary
model to calculate IM, a CSE may be unable to verify whether the
amounts of IM calculated by its counterparty are sufficient. The
Commission, however, believes that Regulation 23.600 addresses this
concern by requiring SDs and MSPs to account for credit risk in
conducting their risk oversight and to ensure compliance with the CFTC
margin requirements. In the case of a CSE relying on new paragraph
(a)(5), as adopted, adequate risk oversight will include steps by the
CSE to monitor, identify, and address potential shortfalls in the
amounts of IM generated by the counterparty on whose IM model the CSE
is relying. While the Commission does not prescribe the CSE's oversight
process, it believes that a risk management program that is unable to
identify or to address shortfalls in IM will be insufficient to comply
with Regulation 23.600.
Moreover, Regulation 23.600 requires SDs and MSPs to furnish to the
Commission risk exposure reports setting forth credit risk exposures
and any other applicable risk exposures relating to their swap
activities. Here again, the Commission believes that an adequate risk
exposure report pursuant to Regulation 23.600 will require a CSE to
identify any adjustments and enhancements to the amount of IM
calculated pursuant to the risk-based model of its swap entity
counterparty to ensure the CSE's collection of adequate amounts of IM.
Commenters generally supported the proposed amendment to Regulation
23.154(a) to permit CSEs to rely on their swap entity counterparties'
risk-based model calculation of IM.\97\ A commenter stated that the
proposed alternative method of IM calculation would greatly reduce the
complexity and burden associated with the implementation of the margin
requirements, in particular in the last phases of compliance, thus
fostering greater liquidity and contributing to lowering the hedging
costs of end-users.\98\ Another commenter discussed the competitive
disadvantage that smaller SDs might experience absent the alternative
method of IM calculation.\99\ This commenter noted that large SDs may
be
[[Page 238]]
disincentivized from trading uncleared swaps with such SDs since doing
so would require large SDs to manage risk-based model calculations with
some entities and table-based calculation with smaller SDs.\100\
Further, this commenter stated that table-based IM calculations, which
do not take into account a firm's specific portfolio composition,
including diversification and hedges, might produce more conservative
results requiring the posting and collection of margin that is
inappropriately high given the actual level of risk involved in a
typical transaction.\101\
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\97\ Associations 10/22/2020 Letter at 4; BPEC 10/23/2020 Letter
at 2; FIA 10/22/2020 Letter at 4; STRM 10/23/2020 Letter at 1;
Working Group 10/22/2020 Letter at 3. In addition to the comments
addressing the alternative method of calculation of IM, as proposed,
two commenters requested broadening the Proposal to permit CSEs to
use the risk-based model of calculation of IM of financial end user
counterparties. BPEC 10/23/2020 Letter at 9; Associations 10/22/2020
Letter at 4. In the Commission's view, this matter falls outside the
scope of the Proposal. Accordingly, the Commission will not express
a view or act on this matter.
\98\ BPEC 10/23/2020 Letter at 2.
\99\ FIA 10/22/2020 Letter at 5.
\100\ Id.
\101\ Id. at 5.
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Another commenter representing a group of commercial firms in the
energy industry stated that allowing smaller SDs to rely on their SD
counterparties' approved IM model calculation would allow them to
continue to play a crucial role in certain discrete swaps markets, like
the energy swaps markets, in an economic and cost effective
manner.\102\ The commenter noted that the use of the table-based method
for the calculation of IM by smaller SDs and IM modeling by larger SDs
resulted in a mismatch in calculation methods that could lead to worse
pricing for smaller SDs, as the table-based method would likely cause
their counterparties to post more IM than they would under a model-
based approach, with the cost of that margin being reflected in a
higher price provided to the smaller SDs.\103\
---------------------------------------------------------------------------
\102\ Working Group 10/22/2020 Letter at 3.
\103\ Id. See also STRM 10/23/2020 Letter at 2.
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Notwithstanding these expressions of support, many commenters
objected to the provision in the Proposal that limits the application
of the alternative method of calculation of IM to uncleared swaps
entered into by a CSE and a swap entity counterparty to hedge the risk
of customer-facing swaps undertaken by the CSE, namely the hedging
limitation.\104\ A commenter stated that it would be difficult, if not
impossible, to ensure that all transactions to which the alternative
method of calculation could apply are entered into for hedging purposes
given that the concept of hedging is difficult to administer.\105\ The
commenter pointed to questions that may arise, including what standard
should be used to determine whether a given swap is in fact a
``hedge.'' \106\ The commenter asked whether each swap with a large SD
must be matched one-by-one with a swap with a non-swap entity
counterparty,\107\ and whether it would be feasible for an entity to
undertake portfolio hedging or dynamic hedging in that context.\108\
The commenter also asked what would happen if the underlying swap
transaction with a non-swap entity counterparty had been terminated,
and whether anticipatory hedges could be counted as hedging.\109\ The
commenter noted that because the swaps markets are dynamic, the
character of swaps may change over time and tagging a swap as hedging
and non-hedging may be impractical.\110\ The commenter concluded that
given the uncertainty as to what constitutes hedging, CSEs may be
reluctant to apply the alternative method of calculation.\111\
---------------------------------------------------------------------------
\104\ Associations 10/22/2020 Letter at 4; BPEC 10/23/2020
Letter at 2; FIA 10/22/2020 Letter at 6; Working Group 10/22/2020
Letter at 4.
\105\ BPEC 10/23/2020 Letter at 5.
\106\ Id. at 4.
\107\ Id. See also STRM 10/23/2020 Letter at 4 (stating that
classifying individual transactions with other SDs as hedges and
tying the hedges to particular client-facing transactions would
impose a material compliance burden that could nullify any benefit
offered by the relief in proposed Regulation 23.154(a)(5)).
\108\ BPEC 10/23/2020 Letter at 4.
\109\ Id.
\110\ Id.
\111\ Id. at 5.
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Another commenter raised similar concerns regarding difficulties in
applying the concept of hedging, illustrated by the position limits
rule recently adopted after many attempts by the Commission to
implement the Dodd-Frank Act, noting that at the core of the rule lies
the concept of hedging.\112\ The commenter stated that the concept of
hedging is difficult to quantify and that there are many instances when
``hedging'' is virtually indistinguishable from speculation.\113\ In
the absence of a definition in the Final Rule, the commenter stated,
counterparties could be left guessing and may be reluctant to rely on
the alternative method of calculation for fear of violating the hedging
limitation.\114\ A commenter also noted that proposed Regulation
23.154(a)(5) does not define the term hedging and suggested replacing
the term with the phrase ``hedge or mitigate commercial risk.'' \115\
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\112\ FIA 10/22/2020 Letter at 7.
\113\ Id.
\114\ Id.
\115\ STRM 10/23/2020 Letter at 4.
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Another commenter stated that many CSEs do not separate hedging
from dealing on a transaction-by-transaction basis since CSEs often
manage hedging on a portfolio basis and, as a result, to implement the
hedging limitation, CSEs would need to undertake a significant amount
of analysis and legal review to make hedging determinations, making the
relief provided by the alternative method of IM calculation
impracticable.\116\ Similarly, another commenter stated that if a CSE
must be able to demonstrate that each swap is a hedge of a transaction
with a non-SD, then the CSE would not be able to engage in portfolio
hedging if the portfolio includes risk related to a speculative swap
with another SD.\117\ Consequently, in the commenter's view, the
hedging limitation would limit the flexibility and efficacy of a CSE's
risk management program.\118\
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\116\ BPEC 10/23/2020 Letter at 5.
\117\ Working Group 10/22/2020 Letter at 4.
\118\ Id.
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In line with these comments, another commenter stated that if a
commercial CSE's portfolio includes non-hedging transactions, the
opportunity to rely on the IM calculations of its SD counterparty may
not be useful since they would need to calculate separately IM for the
non-hedging transactions, which would reduce the benefits of netting or
diversification offered by the Standardized IM Model (``SIMM'').\119\
As a result, the commenter noted, the amount of IM is likely to be
higher, disadvantaging commercial CSEs and their SD counterparties in a
way that would not apply to CSE portfolios with non-SDs.\120\
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\119\ Associations 10/22/2020 Letter at 4. This commenter, along
with another commenter, also argued that SIMM, whose use must be
approved by a regulator prior to its utilization in the calculation
of regulatory IM, is a robust framework that obviates the need for a
safeguard, such as the hedging limitation, to ensure the calculation
of sufficient amounts of IM. See Associations 10/22/2020 Letter at
5; FIA 10/22/2020 Letter at 9. While recognizing the value of
standardization, the Commission believes that SIMM on its own does
not offer the safeguards necessary to address the concerns raised by
the application of the alternative method of IM calculation. That is
because SIMM is a tool that must be tailored to fit each firm's
portfolio and risk profile, and must be subject to ongoing oversight
to ensure adequate calibration.
\120\ Associations 10/22/2020 Letter at 4.
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Commenters also noted that CSEs and their counterparties typically
transact both hedging and dealing swaps under a single ISDA Master
Agreement or credit support annex, with many relationships put in place
years ago, and calculate IM at the relationship or master contract
level rather than the transaction level.\121\ A commenter stated that
if CSEs are required to add additional representations confirming that
a given transaction is a ``hedging'' transaction, the existing
documentation would need to be updated.\122\ The commenter further
stated that IM would also need to be administered on the basis of
hedging and non-hedging transactions which would make the
[[Page 239]]
netting of all transactions under a single ISDA Master Agreement
impossible.\123\ As a result, the implementation of the hedging
limitation would be extremely complex and result in potentially added
operational risk, and certain swap entity counterparties, given the
added market and bankruptcy risk, may shy away from undertaking swaps
with CSEs that rely on the alternative method of calculation of
IM.\124\
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\121\ See generally Associations 10/22/20 Letter at 4; BPEC 10/
23/2020 Letter at 6; FIA 10/22/2020 Letter at 7-8.
\122\ FIA 10/22/2020 Letter at 8.
\123\ Id.
\124\ See Associations 10/22/20 Letter at 4; BPEC 10/23/2020
Letter at 6; FIA 10/22/2020 Letter at 8.
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A commenter also pointed out that having to use the table-based
method of calculation for determining IM in some circumstances and a
counterparty's IM model in other circumstances would be operationally
complex for a CSE, potentially to the point of being unworkable, and
may result in the CSE being forced to choose between entering into
transactions in the inter-dealer market or using the alternative method
of calculation.\125\ The commenter further stated that the hedging
limitation could have negative implications for liquidity in certain
markets, as some CSEs with unique insights and risk profiles that are
best situated to assume customer risk from other SDs may opt not to
trade with such SDs to avoid the burden associated with the hedging
limitation.\126\ Another commenter stated that costs associated with
the hedging limitation, including operational and documentation
burdens, could lead small CSEs to cease providing risk mitigation
services to end-user counterparties, leaving end-users with unhedged
risks.\127\
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\125\ Working Group 10/22/2020 Letter at 4.
\126\ Id. See also STRM 10/23/2020 Letter at 5.
\127\ FIA 10/22/2020 Letter at 8.
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The concerns raised in the foregoing comments hinge on two ideas:
(i) CSEs undertake hedging and speculative swaps with swap entity
counterparties; and (ii) there is no clear standard for determining
which swaps are entered into for hedging purposes. Commenters assert
that because CSEs undertake both hedging and speculative swaps with
swap entity counterparties, the implementation of the hedging
limitation would add further complexity to the transactions and would
be burdensome as swaps are generally managed on a portfolio basis and
may be under a single master netting agreement or credit support annex,
making the separation of hedging and non-hedging transactions
challenging, if not impossible.\128\
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\128\ See BPEC 10/23/20 Letter at 6; FIA 10/22/2020 Letter at 8.
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In response to these concerns, the Commission acknowledges the
potential burdens associated with the implementation of the hedging
limitation. However, the Commission points out that the proposed
addition of a method of calculation of IM that would enable a CSE to
rely on a swap entity counterparty's model calculation of IM provides
an alternative to the two existing methods of calculation of IM. The
alternative method provides flexibility to address a particular
situation illustrated in Letter 19-29. As such, it is intended for use
by CSEs whose core swaps business is with non-swap entities but that
occasionally enter into swaps with a few swap entity counterparties to
offset the risk of customer-facing swaps. Given the limited swaps
business with swap entity counterparties, it is uneconomical for the
CSEs to develop, adopt, and maintain a proprietary risk-based model for
the sole purpose of engaging such counterparties.
In light of the intended use for the alternative method of IM
calculation, the Commission incorporated in the Proposal, in line with
Letter 19-29, the hedging limitation restricting the application of the
proposed alternative method of IM calculation to uncleared swaps
entered into by a CSE to hedge the CSE's customer-facing risk. The
Commission noted in the Proposal that the incorporation of the hedging
limitation would also have the effect of limiting the use of the
proposed method of IM calculation. While the proposed alternative
method of IM calculation was intended to make the alternative method
set forth in Letter 19-29 more widely available, the Commission stated
that its application raised some concerns that would be mitigated, in
part, by limiting the use of the alternative method of calculation to
hedging transactions. More specifically, the Commission expressed the
concern that in calculating the amount of IM to be used by the CSE to
determine the amount to be collected from the swap entity counterparty,
the swap entity counterparty could miscalculate the amount of IM or may
be motivated to underestimate the amount of IM in order to post lesser
IM amounts to the CSE. In turn, the CSE, without a proprietary model to
calculate IM, would have no meaningful way to verify whether the
amounts generated by the swap entity counterparty were correct or to
contest the amounts, potentially resulting in the CSE collecting
insufficient amounts of margin to mitigate the risk of its swaps.
The Commission notes that there are other safeguards in the
Commission's regulations, such as risk management requirements
applicable to both CSEs and their swap entity counterparties, that
could address the potential miscalculation or underestimation of IM;
however, the Commission believes that these safeguards do not obviate
the need for the hedging limitation. Rather, in the Commission's view,
the hedging limitation will work together with such other measures to
provide effective protections to address the concerns raised by the
application of the alternative method of calculation of IM.
Accordingly, the Commission has decided to retain the hedging
limitation. The Commission expects that counterparties that engage in
both hedging and speculative transactions would engage in such a small
number of speculative transactions that the complexity and burden of
separating speculative and hedging transactions and operationally
implementing the hedging limitation would be rather low. On the other
hand, if the speculative activity between the CSE and the swap entity
counterparty is so robust as to complicate the use of the alternative
method of calculation, the CSE should be able to carry out its own
calculation of IM by either adopting a proprietary model for the
calculation of margin or using the table-based method of calculation.
It follows that if the CSE adopts a proprietary model of calculation
for its speculative swaps, the CSE should be likewise able to adopt a
model or use the same model for calculating IM for its hedging swaps,
thus obviating the need to rely on its counterparty's IM calculation.
Regarding comments asserting a lack of a clear standard to
differentiate between hedging and non-hedging swaps, the Commission
believes that the existing standard set out in section 4a(c)(2)(B) of
the CEA \129\ to define ``bona fide hedging transaction or position''
provides a suitable framework for determining which swaps are hedges
for the purpose of applying the alternative method of calculation. By
referring to section 4a(c)(2)(B) for this purpose, the Commission is
setting forth a principles-based approach, not requiring strict
adherence to all the terms of the statute, as the statute addresses
physical markets and products not pertinent in this context, and
pertains to issues (i.e., speculation in the physical markets) outside
the scope of this Final Rule. Key principles derived from section
4a(c)(2)(B) that should be taken into account in determining whether a
swap between a CSE and a swap entity counterparty has been entered into
for hedging purposes include: (a) Whether the swap reduces
[[Page 240]]
risk attendant to another swap undertaken between the CSE and a non-
swap entity counterparty; and (b) whether such other swap (i) was
executed by the non-swap entity counterparty as a substitute for
transactions made or to be made, or for positions taken or to be taken
at a later time, in a commercial enterprise; (ii) is economically
appropriate to the reduction of risk in the conduct and management by
the non-swap entity counterparty of a commercial enterprise; and (iii)
arises from the potential change in value of the non-swap entity
counterparty's assets, liability or services. To determine whether the
criteria in (b) above have been satisfied, the CSE, in accordance with
Regulation 23.402(d), would be able to rely on a written representation
from the non-swap entity counterparty, unless the CSE has information
that would cause a reasonable person to question the accuracy of the
representation.\130\
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\129\ 7 U.S.C. 6a(c)(2).
\130\ 17 CFR 23.402(d) (providing that an SD or MSP may rely on
the written representations of a counterparty to satisfy its due
diligence requirements under subpart H of Part 23 of the
Commission's regulations, which sets forth business conduct
standards for SDs and MSPs to be applied in their dealings with
counterparties). See also Position Limits for Derivatives (approved
Oct. 15, 2020) (defining ``bona fide hedging transaction or
position'' to include pass-through swaps, as described in section
4a(c)(2)(B) of the CEA, undertaken to offset the risk of other swaps
entered into to hedge commercial risk, and noting that a
counterparty may rely on its counterparty's written representations
confirming that such counterparty is executing the pass-through swap
to hedge another swap undertaken to offset commercial risk).
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By using this framework, the Commission believes that many of the
questions raised by the commenters in connection with the application
of the hedging limitation would be addressed. For example, commenters
asked whether swaps entered into by a CSE and an end-user and the
offsetting swaps undertaken by the CSE and a swap entity counterparty
must match one-to-one.\131\ The framework provides some flexibility
permitting CSEs as part of the hedging strategy to match a set of
customer-facing swaps with one or more hedging swaps undertaken with a
swap entity counterparty. Commenters also asked what would happen if
the customer-facing swaps were terminated, and whether anticipatory
hedging would be deemed hedging in the context of the alternative
method of calculation.\132\ Consistent with the framework set forth
above, swaps undertaken by a CSE and a swap entity counterparty as part
of a hedging strategy to offset the risk of customer-facing swaps--
including swaps that are ultimately terminated and swaps that may be
entered into in the future--would be deemed to be hedges for the
purposes of the alternative method of IM calculation.
---------------------------------------------------------------------------
\131\ FIA 10/22/2020 Letter at 7; BPEC 10/23/2020 Letter at 4.
\132\ Id.
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The Commission confirms, consistent with the statutory framework
set forth in section 4a(c)(2)(B), that both the underlying swap between
the CSE and the end-user counterparty, and the offsetting swap between
the CSE and the swap entity counterparty must be entered into for
hedging purposes. More specifically, the swap between the CSE and the
end-user counterparty must be entered into to hedge risk attendant in a
commercial enterprise. In connection with this position, a commenter
stated that the burden of compliance with the hedging limitation would
be borne not only by the CSE and the swap entity counterparty, but also
by end-users that are counterparties to the CSE, as they too would need
to make an assessment of whether their swaps are for ``hedging''
purposes and would need to update their documentation accordingly.\133\
Given that the alternative method of calculation is expected to be used
in the limited circumstances described herein, the Commission believes
that the chance that end-users may be burdened would be greatly
reduced.
---------------------------------------------------------------------------
\133\ FIA 10/22/2020 Letter at 8.
---------------------------------------------------------------------------
A commenter also stated that the hedging limitation may not only
burden small CSEs but also their swap entity counterparties.\134\
Another commenter noted that a swap entity counterparty may be
reluctant to trade with a CSE fearing the CSE's misrepresentation or
mischaracterization of its swaps as hedges, which could lead the swap
entity counterparty to violate its obligations under the CFTC Margin
Rule.\135\ In this regard, the Commission notes that Regulation
23.402(d) permits a swap entity counterparty with respect to swaps with
a CSE to rely on the CSE's representations to satisfy its due diligence
obligations unless the swap entity counterparty has any reason to
question the CSE's representations.\136\ The Commission believes that
Regulation 23.402(d) mitigates swap entity counterparties' concerns
regarding a CSE's potential misrepresentation or mischaracterization of
its swaps as hedges.
---------------------------------------------------------------------------
\134\ BPEC 10/23/2020 Letter at 5.
\135\ FIA 10/22/2020 Letter at 8.
\136\ See 17 CFR 23.402(d) (allowing SDs or MSPs to rely on the
written representations of a counterparty to satisfy its due
diligence requirements concerning swaps entered into with the
counterparty, unless the SD or MSP has information that would cause
a reasonable person to question the accuracy of the representation).
---------------------------------------------------------------------------
Two commenters suggested replacing the hedging limitation with a
$750 billion threshold, whereby CSEs with AANA below the threshold
would be able to use the alternative method of IM calculation without
imposing conditions on the business of CSEs that could have adverse
market impact.\137\ In the Commission's view, another threshold to
determine the applicability of the CFTC's margin requirements would add
further complexity to the rules. In addition, the Commission believes
that the hedging limitation as adopted and further discussed above is
adequately designed to advance the Commission's goals.
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\137\ STRM 10/23/2020 Letter at 5; Working Group 10/23/2020
Letter at 5.
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III. Administrative Compliance
A. Regulatory Flexibility Act
The Regulatory Flexibility Act (``RFA'') requires Federal agencies
to consider whether the rules they propose will have a significant
economic impact on a substantial number of small entities.\138\ As
discussed in the Proposal, the amendments being adopted herein only
affect SDs and MSPs that are subject to the CFTC Margin Rule and their
covered counterparties, all of which are required to be eligible
contract participants (``ECPs'').\139\ The Commission has previously
determined that SDs, MSPs, and ECPs are not small entities for purposes
of the RFA.\140\ Therefore, the Commission believes that the Final Rule
will not have a significant economic impact on a substantial number of
small entities, as defined in the RFA.
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\138\ 5 U.S.C. 601 et seq.
\139\ Each counterparty to an uncleared swap must be an ECP, as
the term is defined in section 1a(18) of the CEA, 7 U.S.C. 1a(18)
and Regulation 1.3, 17 CFR 1.3. See 7 U.S.C. 2(e).
\140\ See Registration of Swap Dealers and Major Swap
Participants, 77 FR 2613, 2620 (Jan. 19, 2012) (SDs and MSPs) and
Opting Out of Segregation, 66 FR 20740, 20743 (April 25, 2001)
(ECPs).
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Accordingly, the Chairman, on behalf of the Commission, hereby
certifies pursuant to 5 U.S.C. 605(b) that the Final Rule will not have
a significant economic impact on a substantial number of small
entities.
B. Paperwork Reduction Act
The Paperwork Reduction Act of 1995 (``PRA'') \141\ imposes certain
requirements on Federal agencies, including the Commission, in
connection with their conducting or sponsoring any collection of
information, as defined by the PRA. The
[[Page 241]]
Commission may not conduct or sponsor, and a person is not required to
respond to, a collection of information unless it displays a currently
valid Office of Management and Budget control number. The Final Rule,
as adopted, contains no requirements subject to the PRA.
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\141\ 44 U.S.C. 3501 et seq.
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C. Cost-Benefit Considerations
Section 15(a) of the CEA requires the Commission to consider the
costs and benefits of its actions before promulgating a regulation
under the CEA.\142\ Section 15(a) further specifies that the costs and
benefits shall be evaluated in light of the following five broad areas
of market and public concern: (1) Protection of market participants and
the public; (2) efficiency, competitiveness and financial integrity of
futures markets; (3) price discovery; (4) sound risk management
practices; and (5) other public interest considerations.
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\142\ 7 U.S.C. 19(a).
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The Commission is amending the CFTC Margin Rule to revise the
method for calculating AANA for determining whether an FEU has MSE and
the timing of compliance with the IM requirements after the end of the
phased compliance schedule (``timing of post-phase-in compliance'').
These amendments align the CFTC Margin Rule with the BCBS/IOSCO
Framework with respect to these matters. The Commission is also
amending Regulation 23.154(a), consistent with Letter 19-29, to allow
CSEs to use the risk-based model calculation of IM of a counterparty
that is a swap entity.\143\
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\143\ For the definition of the term ``swap entity,'' see supra
note 42.
---------------------------------------------------------------------------
With respect to these rule amendments, the Commission considered
the costs and benefits resulting from its discretionary determinations
with respect to section 15(a) considerations, and sought comments from
interested persons regarding the nature and extent of such costs and
benefits. In response to its request for comment, as noted earlier, the
Commission received nine comment letters.\144\ All the comment letters
generally expressed support for the Proposal.\145\ One commenter noted
that it reflects the realities of the marketplace and further aligns
the U.S. regulations with the global regulators.\146\ Other commenters
stated that the Proposal would enable the implementation of the IM
requirements in a practical and efficient manner and reduce the
complexity and burden associated with the implementation of those
requirements.\147\ The commenters added that the Proposal would foster
greater liquidity and contribute to the lowering of hedging costs,
particularly in the last phases of the compliance schedule.\148\
---------------------------------------------------------------------------
\144\ See ACLI 10/23/2020 Letter; Associations 10/22/2020
Letter; BPEC 10/23/2020 Letter; FIA 10/22/2020 Letter; ICI 10/22/
2020 Letter; MFA 10/22/2020 Letter; STRM 10/23/2020 Letter; SIFMA
AMG 10/22/2020 Letter; Working Group 10/22/2020 Letter.
\145\ See ACLI 10/23/2020 Letter at 1; Associations 10/22/2020
Letter at 1; BPEC 10/23/2020 Letter at 2; FIA 10/22/2020 Letter at
2-3; ICI 10/22/2020 Letter at 1; MFA 10/22/2020 Letter at 1; STRM
10/23/2020 Letter at 1; SIFMA AMG 10/22/2020 Letter at 1; Working
Group 10/22/2020 Letter at 3.
\146\ See ACLI 10/23/2020 Letter.
\147\ See generally BPEC 10/23/2020 Letter; MFA 10/22/2020
Letter.
\148\ Id.
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The baseline against which the benefits and costs associated with
the Final Rule is compared is the uncleared swaps markets as they exist
today and the currently applicable timing for compliance with the IM
requirements after the expiration of the phased compliance schedule.
Concerning the amendment to Regulation 23.154(a), the Commission
believes that to the extent market participants may have relied on
Letter 19-29, the actual costs and benefits of the amendment, as
realized by the market, may not be as significant at a practical level.
With respect to the amendments to align aspects of the CFTC Margin Rule
with the BCBS/IOSCO Framework, the Commission notes that the Dodd-Frank
Act calls on the CFTC to ``consult and coordinate on the establishment
of consistent international standards'' with respect to the regulation
of swaps.\149\ The amendments therefore advance the Congressional
direction towards harmonization of the CFTC's requirements with
international standards, thereby removing a regulatory impediment that
might hinder the competitiveness of the U.S. swaps industry.\150\
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\149\ See supra note 79.
\150\ A starting point in determining the potential benefit of
alignment with the BCBS/IOSCO Framework is various statutory
provisions where the U.S. Congress has called on the CFTC and other
financial regulators to align U.S. regulatory requirements with
international standards. For example, the Commodity Futures
Modernization Act of 2000 (``CFMA'') focused on the potential threat
to competitiveness of the U.S. industry where there is divergence
with international standards. In particular, section 126 of the CFMA
provides that regulatory impediments to the operation of global
business interests can compromise the competitiveness of United
States businesses. See CFMA section 126(a), Appendix E of Pub. L.
106-554, 114 Stat. 2763 (2000).
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The Commission notes that the consideration of costs and benefits
below is based on the understanding that the markets function
internationally, with many transactions involving U.S. firms taking
place across international boundaries; with some Commission registrants
being organized outside of the United States; with leading industry
members typically conducting operations both within and outside the
United States; and with industry members commonly following
substantially similar business practices wherever located. Where the
Commission does not specifically refer to matters of location, the
following discussion of costs and benefits refers to the effects of the
Final Rule on all activity subject to the Final Rule, whether by virtue
of the activity's physical location in the United States or by virtue
of the activity's connection with activities in, or effect on, U.S.
commerce under section 2(i) of the CEA.\151\
---------------------------------------------------------------------------
\151\ 7 U.S.C. 2(i).
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1. Benefits
By harmonizing the CFTC's method for calculating AANA for
determining MSE and the timing of post-phase-in compliance with the
BCBS/IOSCO Framework, the Final Rule will create a benefit because it
will reduce complexity--for example, the month-end AANA calculation
method being adopted will require consideration of only three
observation dates rather than daily AANA averaging over the three-month
calculation period--and the potential for confusion in the application
of the margin requirements. Some entities will no longer need to
undertake separate AANA calculations using different calculation
periods, nor will they need to conform to two separate compliance
timings, varying according to the location of their swap counterparties
and jurisdictional requirements applicable to the counterparties.
The Final Rule will affect FEUs with AANA between $8 billion and
$50 billion that come into the scope of compliance with the IM
requirements under the CFTC Margin Rule in the last compliance phase
beginning on September 1, 2022, as well as those entities that come
into scope after the end of the last compliance phase. The Commission
believes that the Final Rule will benefit some of these entities,
which, given their level of swap activity, pose a lower risk to the
uncleared swaps market and the U.S. financial system in general than
entities that came into scope in earlier phases. The OCE has estimated
that there are approximately 514 of such entities representing 4% of
total AANA across
[[Page 242]]
all phases.\152\ This means that the Final Rule addresses entities that
tend to engage in less uncleared swap trading activity and, and in the
aggregate, pose less systemic risk than entities in previous phases.
Because these entities are smaller, they presumably have fewer
resources to devote to IM compliance and hence will benefit from the
alignment of the method of calculation of AANA across jurisdictions
without contributing substantially to systemic risk.
---------------------------------------------------------------------------
\152\ Using March-May of 2020 as the calculation period. The
methodology for calculating AANA is described in Richard Haynes,
Madison Lau, & Bruce Tuckman, Initial Margin Phase 5, at 4 (Oct. 24,
2018), https://www.cftc.gov/sites/default/files/About/Economic%20Analysis/Initial%20Margin%20Phase%205%20v5_ada.pdf.
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For entities with AANA between $8 billion and $50 billion that will
begin collecting IM on September 1, 2022, moving the calculation period
from June, July, and August 2021 to March, April, and May 2022 will
better align with current practices. While the Commission cannot
anticipate exactly how the June-August 2021 period will differ from the
March-May 2022 period, based on comparable past experience, the OCE
estimates that approximately 75-100 entities will come into scope, and
a similar number will fall below the threshold by virtue of moving the
calculation period. The adjusted calculation period will reduce the
regulatory burden for firms that have reduced their MSE below the $8
billion threshold while requiring the collection of margin for those
firms that have increased their swaps business above the threshold.
While aggregate AANA for firms that fall into or out of scope is small
relative to the overall market (less than one percent of total
aggregate AANA), moving the calculation period close to the compliance
date may have a significant impact on entities that have reduced their
MSE.
The Commission also notes that the benefits of alignment with the
BCBS/IOSCO Framework will continue to accrue in future years, as the
determination of MSE for an FEU under the CFTC Margin Rule is an annual
undertaking, triggered by the entry into an uncleared swap between the
FEU and a CSE counterparty and the need to determine whether the FEU
has MSE, which triggers the application of the IM requirements and the
exchange of regulatory IM between a CSE and an FEU for their uncleared
swap transactions.
With respect to the amendment to Regulation 23.154(a), the
Commission believes that the uncleared swap markets will benefit from
the extension of the targeted relief provided to Cargill, the requester
in Letter 19-29, to a wider group of CSEs with similar unique swaps
business models. In taking a no-action position, MPD took account of
Cargill's representation that its swap trading activity primarily
involved physical agricultural commodities and certain other asset
classes and that it ``may maintain positions that require collection of
IM from SDs.'' Cargill further stated that given the highly specialized
and discrete nature of its swaps business, risk-based modeling would
impose a disproportionate burden.
The more widespread availability of the alternative method of
calculation of IM provided by Regulation 23.154(a), as amended by the
Final Rule, may incentivize some market participants to expand their
swaps business. In particular, given that certain market participants
will have the option to forgo the cost of risk-based modeling, this
potential reduction in compliance costs may encourage certain entities
to increase their swaps trading. By increasing the pool of potential
swap counterparties, the Final Rule could enhance competition, increase
overall liquidity, and facilitate price discovery in the uncleared
swaps markets.
2. Costs
While the Final Rule will have the effect of creating efficiencies
for market participants, the Commission acknowledges that the rule
changes being adopted will also give rise to some costs. Among other
things, the change of the CFTC's AANA calculation period for
determining MSE to align it with BCBS/IOSCO's AANA calculation period
will reduce the time frame for determining whether an FEU is subject to
the IM requirements and for preparing for compliance with the
requirements during the final phase-in period of 2022.
Under the current margin requirements, in the period leading to the
final phase-in date of September 1, 2022, FEUs would have a full year
to prepare, as MSE for an FEU would be determined using the AANA for
June, July and August of the prior year. However, under the Final Rule,
entities will have only a three-month advance notice in 2022, as AANA
will be calculated using the March, April and May period of that year.
Entities will have a shorter time frame to engage in preparations to
comply with IM requirements, including, among other things, procuring
rule-compliant documentation, establishing processes for the exchange
of regulatory IM, and setting up IM custodial arrangements. Because the
Final Rule aligns the AANA calculation for determining MSE with BCBS/
IOSCO's approach and the compliance date remains unchanged, the
Commission believes that the cost will be mitigated. In particular, the
Commission notes that commenters confirmed,\153\ as reported in the
Margin Subcommittee Report, that the differences in the U.S.
regulations could create complexity and confusion and lead to
additional effort, cost and compliance challenges for smaller market
participants that are generally subject to margin requirements in
multiple global jurisdictions.\154\
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\153\ See ACLI 10/23/2020 Letter at 2; Associations 10/22/2020
Letter at 3; FIA 10/22/2020 Letter at 4; SIFMA AMG 10/22/2020 Letter
at 3; Working Group 10/22/2020 Letter at 2.
\154\ Margin Subcommittee Report at 49.
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The Commission further notes that the amendment to the timing of
post-phase-in compliance, as proposed, will defer compliance with the
IM requirements with respect to uncleared swaps entered into by a CSE
with an FEU that comes into the scope of IM compliance after the end of
the last compliance phase. Under the current rule being amended, FEUs
with MSE as measured in June, July, and August 2022 would have come
into the scope of compliance post-phase-in beginning on January 1,
2023. On the other hand, under the Final Rule, FEUs with MSE as
measured in March, April, and May 2023 will come into scope, post-
phase-in compliance, beginning on September 1, 2023. As a result, for
FEUs with MSE in both periods, less collateral for uncleared swaps may
be collected given that the Final Rule changes the beginning of post-
phase-in compliance from January 1, 2023, to September 1, 2023,
rendering uncleared swap positions entered into between January 1,
2023, and September 1, 2023, riskier, as no IM will be required to be
collected during that period, which could increase the risk of
contagion and the potential for systemic risk. The Commission, however,
notes that under the Final Rule, a CSE may be required to exchange IM
with an FEU that comes into scope in the last phase of compliance
beginning on September 1, 2022, but falls below the MSE level by
January 1, 2023, for nine months longer than otherwise would have been
the case, as post-phase-in, no assessment of MSE status will be
required until September 1, 2023.
With respect to the adoption of a month-end AANA methodology for
the calculation of AANA for determining MSE, as proposed, the
Commission acknowledges that there are potential costs. The utilization
of month-end
[[Page 243]]
AANA could result in an AANA calculation that is not representative of
a market participant's participation in the swaps markets. As
previously discussed, an AANA calculation based on month-end AANA may
result in the exclusion or undercounting of certain financial contracts
that are required to be included in the calculation (e.g., uncleared
swaps, uncleared security-based swaps, foreign exchange forwards, or
foreign exchange swaps) because of certain combinations of tenure and
time of execution, such as those often present in some intra-month
natural gas and electricity swaps.\155\ The Commission also notes the
potential that market participants might ``window dress'' their
exposures to avoid MSE status and compliance with the CFTC's margin
requirements. At the same time, it is possible that the month-end
methodology, which uses only three data points, could result in some
entities having an AANA calculation on the three end-of-month dates
that is uncharacteristically high relative to their typical positions.
---------------------------------------------------------------------------
\155\ See supra note 59.
---------------------------------------------------------------------------
If products are excluded from the AANA calculation, or if exposures
are ``window dressed,'' the month-end calculation may have the effect
of deferring the time by which market participants meet the MSE
classification resulting in additional swaps between market
participants and CSEs being deemed legacy swaps that are not subject to
the IM requirements.\156\ This may increase the level of counterparty
credit risk to the financial system. While potentially meaningful, this
risk will be mitigated because the legacy swap portfolios will be
entered into with FEUs that engage in lower levels of notional trading.
---------------------------------------------------------------------------
\156\ For explanation of legacy swaps, see supra note 49.
---------------------------------------------------------------------------
In addition, many larger SDs are under the jurisdiction of the U.S.
prudential regulators, and these entities and their counterparties will
apparently be required to continue to use the current AANA calculation
methodology. Entities that trade with both SDs that are under the
jurisdiction of the U.S. prudential regulators and CSEs that are under
the CFTC's jurisdiction will be required to undertake separate AANA
calculations using different calculation periods, varying according to
the regulator of their swap counterparty. Hence, entities that trade in
other jurisdictions and that trade with SDs subject to the prudential
regulators' jurisdiction will be required to continue to undertake
separate AANA calculations using different calculation periods and two
separate compliance timings. In fact, an entity that only trades in the
U.S. will now be required to conduct separate AANA calculations using
different calculation periods and timings. While we received no
quantification of the number of such entities, SDs regulated by U.S.
prudential regulators represent a sizable share of swap trading.
Recognizing the potential for costs to increase for this reason,
all of the comments received by the Commission noted the benefits of
alignment with the BCBS/IOSCO Framework, and none mentioned the costs
associated with any potential misalignment with the U.S. prudential
regulators. Further, some commenters stated that the CFTC should
proceed with the amendments even if the prudential regulators do not
make corresponding changes to their margin rules.\157\
---------------------------------------------------------------------------
\157\ SIFMA AMG 10/22/2020 Letter at 3; Working Group 10/22/2020
Letter at 2.
---------------------------------------------------------------------------
In addition, the Commission notes that, in the aforementioned OCE
exercise utilizing a sample of days, the OCE estimated that
calculations based on end-of-month AANA would yield fairly similar
results as the calculations based on the current daily average AANA
approach (setting aside the window dressing issue). Based on 2020 swap
data, the OCE estimated that approximately 492 entities of the 514
entities that would have come into scope in the last phase of the
phased compliance schedule, based on the existing methodology, would
also come into scope based on the methodology being adopted under the
Final Rule. Put differently, all but 22 of the entities that would be
above MSE under the existing methodology would also be above MSE under
the Final Rule's methodology. In addition, there are 20 entities that
would be in scope under the Final Rule's methodology, but would not
have been under the existing methodology, so that the aggregate number
of entities differs only by two. In aggregate, the two methodologies
capture quite similar sets of entities. In addition, the entities that
fall out of scope when one changes methodology tend to be among the
smallest of entities coming into scope in the last phase of compliance.
That is, entities that would have been in-scope under the current
methodology but not the Final Rule's methodology average $6.95 billion
in AANA, compared to $20 billion for all entities coming into scope in
the last phase of compliance.\158\
---------------------------------------------------------------------------
\158\ See supra note 60.
---------------------------------------------------------------------------
Taking account of the relatively small percentage of aggregate AANA
represented by FEUs that will have MSE for the first time in the near
future, and thus be subject to the Commission's IM requirements under
the Final Rule, the Commission believes that the potential exclusion of
certain financial products in determining MSE will have a limited
impact on the effectiveness of the CFTC Margin Rule. In addition, with
respect to the potential that a market participant might ``window
dress'' its exposure, the Commission believes that the anti-evasion
language being incorporated into the rule text by this Final Rule,
discussed in more detail above, would reduce the risk that swap
exposures or positions might be manipulated to evade the CFTC's IM
requirements. The Commission also notes that it has authority,
including anti-fraud authority under section 4b of the CEA,\159\ to
take appropriate enforcement actions against any market participant
that may engage in deceptive conduct with respect to the AANA
calculation, and that CSEs, under the Commission's regulations, must
have written policies and procedures in place to prevent evasion or the
facilitation of an evasion by an FEU counterparty.\160\
---------------------------------------------------------------------------
\159\ 7 U.S.C. 6b.
\160\ See 17 CFR 23.402(a)(ii).
---------------------------------------------------------------------------
Roughly 514 entities, as estimated by the OCE, will come into the
scope of the IM requirements beginning on September 1, 2022, and will
be affected by the Final Rule. In advance of the September 1, 2022
compliance date, many of these entities may have engaged in planning
and preparations relating to the exchange of regulatory IM. With the
revision of the AANA method of calculation, these entities may need to
adjust their systems to reflect changes in the calculation and update
related financial infrastructure arrangements. However, the Commission
believes that the resulting increased costs will be negligible, and the
amendments being adopted will likely be cost-reducing for those
impacted firms.
Regarding the amendment to Regulation 23.154(a), there may be
associated costs, as CSEs will be able to rely on the risk-based model
calculation of IM computed by a swap entity counterparty. The safeguard
provided by the requirement that both the CSE and its SD counterparty
maintain a risk-based IM model for any swap transaction for which they
do not use the table-based method to calculate IM will be eliminated. A
CSE that relies on a counterparty's risk-based model calculations may
forgo the adoption of a risk-based model and thus avoid the rigorous
Commission requirements
[[Page 244]]
relating to risk-based modeling,\161\ which may undercut the
effectiveness of the CSE's risk oversight.\162\
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\161\ See generally 17 CFR 23.154(b).
\162\ But cf. 17 CFR 23.600 (requiring SDs and MSPs to establish
a robust risk management program for the monitoring and management
of their swap activities).
---------------------------------------------------------------------------
In addition, the safeguard of private market discipline that is
inherent in having each counterparty develop its own IM model, and
therefore the ability for the parties to scrutinize each other's IM
model and output, will not be present given that under the Final Rule,
a CSE will be permitted to rely on the risk-based model calculation of
a swap entity counterparty. As such, there is the potential that
insufficient amounts of IM will be generated by the swap entity
counterparty, which may be attributable to a deficiency in the model or
the fact that the swap entity may be inherently conflicted and
interested in generating lower IM collectable by the CSE.\163\ Without
a model, the CSE will lack adequate means to verify the amount of IM
produced by the swap entity counterparty and will not be capable to
contest it. As a result, insufficient amounts of IM may be collected by
the CSE to protect itself against the risk of default by the swap
entity counterparty, increasing the risk of contagion and the potential
for systemic risk.
---------------------------------------------------------------------------
\163\ But cf. 17 CFR 23.600 (requiring swap entities to have a
risk management program for the management and monitoring of risk
associated with their swaps, which may reduce the risk that such
entities may act in a conflicted manner).
---------------------------------------------------------------------------
The Commission, however, believes that these costs are mitigated by
the Final Rule, because it reflects the narrow terms of Letter 19-29,
which extends no-action relief only with respect to uncleared swaps
entered into for the purpose of hedging. In addition, the Commission
notes that there are other requirements in the Commission's regulations
that address the monitoring of exposures and swap risk.
3. Section 15(a) Considerations
In light of the foregoing, the CFTC has evaluated the costs and
benefits of the Final Rule pursuant to the five considerations
identified in section 15(a) of the CEA as follows:
(a) Protection of Market Participants and the Public
The Final Rule aligns the CFTC's method for calculating AANA for
determining MSE and the timing of post-phase-in compliance with the
BCBS/IOSCO Framework. By aligning these aspects of the CFTC Margin Rule
with the international standard, the Final Rule will reduce the
potential for complexity and confusion that can result from using
different AANA calculation methods and different compliance schedules
for some market participants that may be subject to margin requirements
in multiple jurisdictions, which could result in errors in determining
whether a particular entity comes within the scope of the CFTC Margin
Rule, and, in turn, the failure to exchange requisite margin if the
entity is mistakenly determined to be out of scope.
The Final Rule may result in FEUs having less time between the
calculation of AANA to determine whether they reach the MSE level, and
the date on which CSEs would be required to exchange IM with the FEUs
should the FEUs reach the MSE level. This may make it more difficult
for such FEUs to prepare for the exchange of IM for their uncleared
swaps with CSEs and to timely post IM, increasing the risk of their
swap positions.
More specifically, under the existing CFTC Margin Rule, beginning
on September 1, 2022, FEUs would have been required to look back to the
June-August 2021 period to determine whether they have MSE and come
within the scope of the IM requirements. The firms would have had at
least twelve months to engage in preparations for the exchange of
regulatory IM, by, among other things, procuring rule-compliant
documentation, establishing processes and systems for the calculation,
collection and posting of IM collateral, and setting up custodial
arrangements. Under the Final Rule, which changes the AANA calculation
period for determining MSE to March-May of the current year, such firms
will have only a three-month window to engage in preparations to
exchange IM. Nevertheless, the Commission notes that, under the current
rule being amended, after the end of the phased compliance schedule,
firms would have had only four months in subsequent years between
calculation and required compliance since the calculation period for
determining MSE status would have been June through August of the prior
year, with compliance starting January 1 of the following year. In
addition, because the Final Rule requires the averaging of three month-
end dates rather than all business days during the three-month
calculation period, the potential burdens of a shorter preparatory
period may be offset by the adoption of the BCBS/IOSCO Framework's less
onerous calculation method for some entities.
Moreover, the Final Rule shifts the timing of post-phase-in
compliance to September 1 of each year. As such, some entities that
otherwise would have been required to exchange IM beginning January 1,
2023, will be able to defer compliance to September 1, 2023.\164\ As a
result, less collateral for uncleared swaps may be collected between
January 1, 2023, and September 1, 2023, rendering the parties'
positions riskier during that nine-month period, which could raise the
risk of contagion and increase the potential for systemic risk. Firms
that would have fallen out of scope by January 1, 2023, will also be
subject to compliance for an additional nine months.
---------------------------------------------------------------------------
\164\ This would apply to entities that meet the MSE level based
on their AANA during the June, July, and August 2022 period, and
continue to have MSE in the March, April, and May 2023 period. Of
course, changing the calculation period to the March, April, and May
2023 period may lead to the inclusion of entities whose AANA is
below MSE in the June, July, and August 2022 period, but rises to
the MSE level or above by the March, April, and May 2023 period. The
OCE estimated that approximately 75-100 entities typically move from
one side of the MSE threshold to the other between measurement
periods.
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The amendment to Regulation 23.154(a), as proposed, will allow a
CSE to use the risk-based model calculation of IM of a counterparty
that is a swap entity. As a result, the CSE may forgo the adoption of a
risk-based model, avoiding the cost and burden associated with the
development and maintenance of a model. Without a model, the CSE may
not be able to challenge the amounts generated by the swap entity
counterparty, which may be insufficient because of model error or
malfunction or because the swap entity, given the inherent conflict of
interest, may be biased in favor of calculating and posting lower
amounts of IM to the CSE. Hence, the CSE may collect insufficient
amounts of IM to offset the risk of counterparty default, increasing
the risk of contagion and the potential for systemic risk.
The Commission believes that these risks may be mitigated by the
Final Rule, which is narrowly tailored to permit reliance on a swap
entity counterparty's risk-based model calculation only with respect to
uncleared swaps entered into for the purpose of hedging. In addition,
Regulation 23.600, which requires SDs and MSPs to adopt a robust risk
management program for the monitoring and management of risk related to
their swap activities, imposes an additional safeguard by requiring the
monitoring of exposures and swap risk.
[[Page 245]]
(b) Efficiency, Competitiveness, and Financial Integrity of Markets
The Final Rule aligns the CFTC Margin Rule's AANA calculation
method for determining MSE and the timing of post-phase-in compliance
with the BCBS/IOSCO Framework. The Final Rule will thus reduce the
need, at least for entities not also undertaking swaps with U.S.
prudentially regulated SDs, to undertake separate AANA calculations
accounting for different calculation methods and to conform to separate
compliance timings, varying according to the location of swap
counterparties and jurisdictional requirements applicable to the
counterparties.\165\ As such, the Final Rule may promote market
efficiency and may level the playing field for CSEs, fostering
competitiveness and reducing the incentive for market participants to
engage in regulatory arbitrage by identifying more accommodating margin
frameworks.
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\165\ As noted above, for entities that only trade in the U.S.,
the Final Rule may result in separate compliance timings and AANA
calculations.
---------------------------------------------------------------------------
The amendment to Regulation 23.154(a), as proposed, will allow CSEs
to rely on a swap entity counterparty's IM risk-based model
calculation. This will generally result in lower IM than if IM were
calculated using the standardized IM table. As such, the amendment may
allow CSEs to more effectively compete in providing swaps to end-users.
The Final Rule may thus promote efficiency in the uncleared swaps
market by increasing the pool of swap counterparties and fostering
competition.
Potential costs may arise because, without its own model, a CSE may
lack effective means to verify its counterparty's IM calculations. As a
result, if there are shortfalls in the output, the CSE may collect less
IM collateral to offset the risk of default by the counterparty, which
could increase the risk of contagion, threatening the integrity of the
U.S. financial markets. The Commission, however, believes that the
Final Rule is sufficiently targeted to mitigate these risks. The Final
Rule will apply only when uncleared swaps are entered into for hedging,
thus limiting widespread use and the potential for uncollateralized
uncleared swap risk.
(c) Price Discovery
By aligning the CFTC Margin Rule and the BCBS/IOSCO Framework with
respect to the AANA calculation method for determining MSE and the
post-phase-in compliance timing, the Final Rule may reduce the burden
and confusion inherent in implementing separate measures and processes
to address compliance in different jurisdictions for some entities. The
Final Rule may thus incentivize more firms to enter into uncleared swap
transactions, increasing liquidity and leading to more robust pricing
that reflects market fundamentals.
The amendment to Regulation 23.154(a), as proposed, may relieve
certain CSEs from having to adopt a risk-based margin model to
calculate IM or use the standardized IM table, by allowing them to rely
on a counterparty's risk-based model calculation of IM. Relative to the
alternatives, being able to have IM calculated in this manner may lower
the costs of trading for such entities, and they may increase their
trading in uncleared swaps, which in turn may increase liquidity and
enhance price discovery. On the other hand, the Final Rule may
encourage entities to shift their trading from swaps that can be
cleared, potentially reducing liquidity and price discovery in those
markets.
(d) Sound Risk Management
The Final Rule may reduce the need for some firms to undertake
separate AANA calculations using different methods and to conform to
separate compliance timing, allowing firms to engage in sound risk
management by focusing on more substantive requirements.
Under the current rule, after the last phase of compliance, CSEs
that enter into uncleared swaps with FEUs with MSE would have been
required to exchange IM with such FEUs beginning on January 1, 2023.
Under the Final Rule, CSEs will not be required to exchange IM with an
FEU with MSE until September 1, 2023. As such, one effect of adopting
the Final Rule is that uncleared swaps entered into between January 1,
2023, and September 1, 2023, by a CSE and FEU with MSE may now be
uncollateralized. Given that less collateral may be collected during
that nine-month period, positions created during that period may be
riskier, increasing the risk of contagion and systemic risk.
Conversely, because the existing January 1, 2023 compliance date would
have required reassessment of MSE status on such date, certain FEUs
that came into scope in the last phase of compliance may have come out
of scope post-phase-in, resulting in the collection of less collateral
for such entities than under the Final Rule. The Commission therefore
believes that balancing the additional firms that will not be required
to exchange IM until September 2023, against the possibility that some
firms would have come out of scope under the existing requirements, the
impact of the rule change with respect to the exchange of required
collateral is likely to be relatively small.
Also, it is possible that FEUs trading certain financial products
may not meet the MSE threshold because month-end positions in these
financial products are not reflective of their typical position, so
that their month-end AANAs may be uncharacteristically low.\166\ As
result, CSEs and such FEUs may not exchange IM for their uncleared
swaps and their swaps may be insufficiently collateralized, increasing
the risk of contagion and systemic risk. Conversely, because more than
96% of FEUs are unlikely to have MSE and come within the scope of the
IM requirements, as estimated by the OCE, the exclusion of such
products will have a limited impact on the effectiveness of the
Commission's IM requirements.
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\166\ As noted in footnote 60 infra, the month-end calculation
may tend to undercount positions in certain physical energy swaps.
---------------------------------------------------------------------------
Having only three observations to evaluate an entity's typical
position may lead to less precision in determining which entities are
most likely to contribute to systemic risk. However, absent ``window
dressing'' issues, the effect of having fewer observations is unlikely
to be substantial. Based on 2020 trading, OCE estimates that the sets
of firms that will meet MSE under either measure are largely the same,
and the set of entities that meet one criterion and not the other tends
to consist of the smallest entities.
In regard to ``window dressing,'' AANA calculations based on month-
end AANA compared to the currently required daily AANA averaging may be
more susceptible to manipulation and less conducive to sound risk
management. FEUs may manage their exposures as they approach the month-
end date during the three-month calculation period to avoid MSE status.
The Commission, however, believes that the anti-evasion language being
incorporated into the rule text by this Final Rule, discussed in more
detail above, would reduce the risk of window dressing. In addition,
the Commission notes that it has authority, including anti-fraud
authority under section 4b of the CEA, to take appropriate enforcement
actions against any market participant that may engage in deceptive
conduct with respect to the AANA calculation, and that CSEs, under the
Commission's regulations, must have written policies and procedures in
place
[[Page 246]]
to prevent evasion or the facilitation of an evasion by an FEU
counterparty.\167\
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\167\ See 17 CFR 23.402(a)(ii).
---------------------------------------------------------------------------
As proposed, the Final Rule allows CSEs to use the risk-based model
calculation of a swap entity counterparty to calculate the amount of IM
to be collected from such counterparty, consistent with Letter 19-29.
As a result, CSEs may no longer be incentivized to adopt a proprietary
risk-based model. If a CSE uses a counterparty's IM model calculation
without developing its own model, the CSE may lack reasonable means to
verify the IM provided by its counterparty, recognize shortfalls in the
IM calculation, and identify potential flaws in the swap entity
counterparty's risk-based model. As such, insufficient amounts of IM
may be collected by the CSE to protect itself against the risk of
default by the swap entity counterparty, increasing the risk of
contagion and the potential for systemic risk. The Commission, however,
believes that these risks are mitigated because, under the Final Rule,
CSEs are able to use a counterparty's risk-based model IM calculation
only with respect to uncleared swaps entered into for the purpose of
hedging. In addition, the Commission notes that there are other
requirements in the Commission's regulations that address the
monitoring of exposures and swap risk.
(e) Other Public Interest Considerations
The Commission believes that the Final Rule, by aligning the CFTC
Margin Rule with the BCBS/IOSCO Framework, will promote harmonization
with international regulatory requirements and may reduce the potential
for regulatory arbitrage. However, given that the U.S. prudential
regulators have not amended their margin requirements in line with the
Final Rule, the possibility exists that certain firms may undertake
swaps with particular SDs based on which U.S. regulatory agency is
responsible for setting margin requirements for such SDs.
D. Antitrust Laws
Section 15(b) of the CEA requires the Commission to take into
consideration the public interest to be protected by the antitrust laws
and endeavor to take the least anticompetitive means of achieving the
objectives of the CEA, as well as the policies and purposes of the CEA,
in issuing any order or adopting any Commission rule or regulation
(including any exemption under section 4(c) or 4c(b)), or in requiring
or approving any bylaw, rule or regulation of a contract market or
registered futures association established pursuant to section 17 of
the CEA.\168\
---------------------------------------------------------------------------
\168\ 7 U.S.C. 19(b).
---------------------------------------------------------------------------
The Commission believes that the public interest to be protected by
the antitrust laws is generally to protect competition. The Commission
requested comment on whether the Proposal implicated any other specific
public interest to be protected by the antitrust laws and received no
comments.
The Commission has considered the Final Rule to determine whether
it is anticompetitive, and has identified no anticompetitive effects.
The Commission requested comment on whether the Proposal was
anticompetitive and, if it was, what the anticompetitive effects were,
and received no comments.
Because the Commission has determined that the Final Rule is not
anticompetitive and has no anticompetitive effects, the Commission has
not identified any less competitive means of achieving the purposes of
the Act.
List of Subjects in 17 CFR Part 23
Capital and margin requirements, Major swap participants, Swap
dealers, Swaps.
For the reasons stated in the preamble, the Commodity Futures
Trading Commission amends 17 CFR part 23 as follows:
PART 23--SWAP DEALERS AND MAJOR SWAP PARTICIPANTS
0
1. The authority citation for part 23 continues to read as follows:
Authority: 7 U.S.C. 1a, 2, 6, 6a, 6b, 6b-1, 6c, 6p, 6r, 6s, 6t,
9, 9a, 12, 12a, 13b, 13c, 16a, 18, 19, 21.
Section 23.160 also issued under 7 U.S.C. 2(i); Sec. 721(b),
Pub. L. 111-203, 124 Stat. 1641 (2010).
0
2. In Sec. 23.151, revise the definition of ``Material swaps
exposure'' to read as follows:
Sec. 23.151 Definitions applicable to margin requirements.
* * * * *
Material swaps exposure for an entity means that, as of September 1
of any year, the entity and its margin affiliates have an average
month-end aggregate notional amount of uncleared swaps, uncleared
security-based swaps, foreign exchange forwards, and foreign exchange
swaps with all counterparties for March, April, and May of that year
that exceeds $8 billion, where such amount is calculated only for the
last business day of the month. Activities not carried out in the
regular course of business and willfully designed to circumvent
calculation at month-end to evade meeting the definition of material
swaps exposure shall be prohibited. An entity shall count the average
month-end aggregate notional amount of an uncleared swap, an uncleared
security-based swap, a foreign exchange forward, or a foreign exchange
swap between the entity and a margin affiliate only one time. For
purposes of this calculation, an entity shall not count a swap that is
exempt pursuant to Sec. 23.150(b) or a security-based swap that
qualifies for an exemption under section 3C(g)(10) of the Securities
Exchange Act of 1934 (15 U.S.C. 78c-3(g)(4)) and implementing
regulations or that satisfies the criteria in section 3C(g)(1) of the
Securities Exchange Act of 1934 (15 U.S.C. 78-c3(g)(4)) and
implementing regulations.
* * * * *
0
3. In Sec. 23.154, add paragraph (a)(5) to read as follows:
Sec. 23.154 Calculation of initial margin.
(a) * * *
(5) A covered swap entity would be deemed to calculate initial
margin as required by paragraph (a)(1) of this section if it uses the
amount of initial margin calculated by a counterparty that is a swap
entity and the initial margin amount is calculated using the swap
entity's risk-based model that meets the requirements of paragraph (b)
of this section or is approved by a prudential regulator, provided that
initial margin calculated in such manner is used only with respect to
uncleared swaps entered into by the covered swap entity and the swap
entity for the purpose of hedging the covered swap entity's swaps with
non-swap entity counterparties.
* * * * *
Issued in Washington, DC, on December 11, 2020, by the
Commission.
Christopher Kirkpatrick,
Secretary of the Commission.
Note: The following appendices will not appear in the Code of
Federal Regulations.
Appendices to Margin Requirements for Uncleared Swaps for Swap Dealers
and Major Swap Participants--Commission Voting Summary and
Commissioners' Statements
Appendix 1--Commission Voting Summary
On this matter, Chairman Tarbert and Commissioners Quintenz,
Behnam, Stump, and Berkovitz voted in the affirmative. No
Commissioner voted in the negative.
[[Page 247]]
Appendix 2--Statement of Support of Commissioner Brian D. Quintenz
I vote in favor of today's final rule that first, amends a key
definition used to determine whether a financial end-user must
comply with the Commission's uncleared swap margin regulations when
trading with a swap dealer,\1\ and second, codifies no-action relief
providing additional flexibility for swap dealers to use the risk-
based calculation of initial margin.\2\ With regard to the
adjustment to the definition of material swap exposure, I support
the fact that the rulemaking further aligns the Commission's rules
to the framework agreed upon by the international framework
established by BCBS-IOSCO. However, I continue to take issue with
the reliance on notional value as the defining metric for
determining whether a firm should be subject to the uncleared margin
regulations. The philosophy behind such a framework is that firms
with small levels of swaps can have outsized impacts on the
financial system. Further, the fact that we, as an agency and as
international regulators, continue to embrace a metric as useless,
biased, and arbitrary as notional value is something I have long
opposed, and I have never, not once, heard an acceptable or even
rationale defense for doing so.
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\1\ Definition of material swap exposure under reg. 23.151(a).
\2\ CFTC Letter 19-29.
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Appendix 3--Statement of Support of Commissioner Dawn D. Stump Overview
I am pleased to support the final rulemaking that the Commission
is adopting with respect to the definition of ``material swaps
exposure'' and an alternative margin calculation method in
connection with the Commission's margin requirements for uncleared
swaps.
This rulemaking addresses recommendations that the Commission
has received from its Global Markets Advisory Committee (``GMAC''),
which I am proud to sponsor, and is based on a comprehensive report
prepared by GMAC's Subcommittee on Margin Requirements for Non-
Cleared Swaps (``GMAC Margin Subcommittee'').\1\ It demonstrates the
value added to the Commission's policymaking by its Advisory
Committees, in which market participants and other interested
parties come together to provide us with their perspectives and
potential solutions to practical problems.
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\1\ Recommendations to Improve Scoping and Implementation of
Initial Margin Requirements for Non-Cleared Swaps, Report to the
CFTC's Global Markets Advisory Committee by the Subcommittee on
Margin Requirements for Non-Cleared Swaps (April 2020) (``Margin
Subcommittee Report''), available at https://www.cftc.gov/media/3886/GMAC_051920MarginSubcommitteeReport/download.
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The rulemaking we are adopting makes two changes to the
Commission's uncleared margin rules. These changes have much to
commend them--indeed, we did not receive any comment letters
opposing them. These rule changes further objectives that I have
commented on before:
The imperative of harmonizing our margin requirements
with those of our international colleagues in order to facilitate
compliance and coordinated regulatory oversight; and
the benefits of codifying relief that has been issued
by our Staff and re-visiting our rules, where appropriate.
Background: A Different Universe Is Coming Into Scope of the Uncleared
Margin Rules
The Commission's uncleared margin rules for swap dealers, like
the Framework of the Basel Committee on Banking Supervision and the
Board of the International Organization of Securities Commissions
(``BCBS/IOSCO'') \2\ on which they are based, were designed
primarily to ensure the exchange of margin between the largest, most
systemic, and interconnected financial institutions for their
uncleared swap transactions with one another. Today, these
institutions and transactions are subject to uncleared margin
requirements that have taken effect since the rules were adopted.
---------------------------------------------------------------------------
\2\ See generally BCBS/IOSCO, Margin requirements for non-
centrally cleared derivatives (July 2019), available at https://www.bis.org/bcbs/publ/d475.pdf.
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Pursuant to the phased implementation schedule of the
Commission's rules and the BCBS/IOSCO Framework, though, a different
universe of market participants--presenting unique considerations--
will soon be coming into scope of the margin rules. It is only now,
as we enter the final phases of the implementation schedule, that
the Commission's uncleared margin rules will apply to a significant
number of financial end-users, and we have a responsibility to make
sure they are fit for that purpose. Accordingly, now is the time we
must thoughtfully consider whether the regulatory parameters that we
have designed for the largest financial institutions in the earlier
phases of margin implementation need to be tailored to account for
the practical and operational challenges posed by the exchange of
margin when one of the counterparties is a pension plan, endowment,
insurance provider, mortgage service provider, or other financial
end-user.
International Harmonization To Enhance Compliance and Coordinated
Regulation
The first rule change we are adopting would revise the
calculation method for determining whether financial end-users come
within the scope of the initial margin (``IM'') requirements, and
the timing for compliance with the IM requirements after the end of
the phased compliance schedule. These changes would align certain
timing and calculation issues under the Commission's margin rules
with both the BCBS/IOSCO Framework and the manner in which these
issues are handled by our regulatory colleagues in all other major
market jurisdictions.
Swap dealers must exchange IM with respect to uncleared swaps
that they enter into with a financial end-user counterparty that has
material swaps exposure (``MSE''). The Commission's margin rules
currently provide that after the last phase of compliance, MSE is to
be determined on January 1, and that an entity has MSE if it has
more than $8 billion in average aggregate notional amount (``AANA'')
during June, July, and August of the prior year. By contrast, under
the BCBS/IOSCO Framework and in virtually every other country in the
world, an entity is determined to come into scope of the IM
requirement on September 1, and an entity has MSE if it has the
equivalent of $8 billion in AANA \3\ during March, April, and May of
that year.
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\3\ The MSE threshold under the BCBS/IOSCO Framework is stated
in euros rather than dollars.
---------------------------------------------------------------------------
The reason the United States is out-of-step with the rest of the
world on these timing and calculation issues is not because of any
reasoned policy determination. Rather, it is the result of a quirk
that the U.S. margin rules were adopted based on the BCBS/IOSCO
Framework that was in effect at the time--but the BCBS/IOSCO
Framework was revised two years later.
In a further disconnect, the Commission's margin rules look to
the daily average AANA during the three-month calculation period for
determining MSE, whereas the BCBS/IOSCO Framework and other major
market jurisdictions base the AANA calculation on an average of
month-end dates during that period. Yet, as noted in the rulemaking
release, the Commission's Office of the Chief Economist has
estimated that calculations based on end-of-month AANA generally
would yield similar results as calculations based on the
Commission's current daily AANA approach. It has been suggested that
this rule change theoretically might incentivize a firm to ``window
dress'' its swap exposures as the month-end approaches in order to
avoid margin requirements. But the GMAC Margin Subcommittee observed
that it would be neither practicable nor financially desirable for
parties to tear-up their positions on a recurring basis prior to the
month-end calculation,\4\ because doing so would interfere with
hedging strategies and cause the firm to incur realized profit and
loss.\5\
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\4\ Margin Subcommittee Report at 52.
\5\ Commenters made this same point. See, e.g., Joint Letter
from ISDA, SIFMA, and GFXD at 3 (month-end window dressing is not a
realistic risk since unwinding and then reestablishing positions on
a recurring basis over the three-month period would take
considerable effort, interrupt hedging strategies, and require
counterparties to absorb the costs of realized profit and loss
changes); Letter from SIFMA Asset Management Group at 3 (it would be
neither practicable nor financially desirable for parties to tear-up
positions on a recurring basis prior to each month end); Letter from
Investment Company Institute at 5-6 (for regulated funds, adjusting
swap exposures over the course of three periodic dates solely to
avoid IM could impose transaction costs and inhibit a fund's ability
to manage its portfolio risk, which may be inconsistent with the
investment adviser's fiduciary duty to act in the best interest of
its client). Comment letters available at https://comments.cftc.gov/PublicComments/CommentList.aspx?id=4157.
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Accordingly, the Commission is amending these timing and
calculation provisions of its uncleared margin rules to harmonize
them with the BCBS/IOSCO Framework and the approach followed by our
international colleagues. Given the global nature of the derivatives
markets, we should always seek international harmonization of our
[[Page 248]]
regulations unless a compelling reason exists not to do so--which is
not the case here.
Indeed, in the Dodd-Frank Act, Congress specifically directed
the Commission, ``[i]n order to promote effective and consistent
global regulation of swaps,'' to ``consult and coordinate with
foreign regulatory authorities on the establishment of consistent
international standards with respect to the regulation . . . of
swaps [and] swap entities. . . .'' \6\ And when the G-20 leaders met
in Pittsburgh in the midst of the financial crisis in 2009, they,
too, recognized that a workable solution for global derivatives
markets demands coordinated policies and cooperation.\7\
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\6\ See section 752(a) of the Dodd-Frank Wall Street Reform and
Consumer Protection Act, Public Law 111-203, Title VII, 124 Stat.
1376 (2010) (``Dodd-Frank Act'').
\7\ See Leaders' Statement from the 2009 G-20 Summit in
Pittsburgh, Pa. at 7 (September 24-25, 2009) (``We are committed to
take action at the national and international level to raise
standards together so that our national authorities implement global
standards consistently in a way that ensures a level playing field
and avoids fragmentation of markets, protectionism, and regulatory
arbitrage''), available at https://www.treasury.gov/resource-center/international/g7-g20/Documents/pittsburgh_summit_leaders_statement_250909.pdf.
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Our rule change regarding MSE is true to the direction of
Congress in the Dodd-Frank Act, and honors the commitment of the G-
20 leaders at the Pittsburgh summit. Differences between countries
in the detailed timing and calculation requirements with respect to
uncleared margin compel participants in these global markets to run
multiple compliance calculations--for no particular regulatory
reason. This not only forces market participants to bear unnecessary
costs, but actually hinders compliance with margin requirements
because of the entirely foreseeable prospect of calculation errors
in applying the different rules.
As noted above, now is the time to address this disconnect in
MSE timing and calculation requirements because the financial end-
users to which the MSE definition applies are coming into scope of
the margin rules. During the unfortunate events of the financial
crisis, we learned that coordination among global regulators,
working towards a common objective, is essential. That lesson
remains true today, and we are reminded that disregarding this
reality has the potential to weaken, rather than strengthen, the
effectiveness of our oversight and the resilience of global
derivatives markets.
The Benefits of Codifying Staff Relief and Re-Visiting Our Rules
The second rule change that we are adopting would codify
existing Staff no-action relief in recognition of market realities.
The Commission's Staff often has occasion to issue relief or take
other action in the form of no-action letters, interpretative
letters, or advisories on various issues and in various
circumstances. This affords the Commission a chance to observe how
the Staff action operates in real-time, and to evaluate lessons
learned. With the benefit of this time and experience, the
Commission should then consider whether codifying such Staff action
into rules is appropriate.\8\ As I have said before, ``[i]t is
simply good government to re-visit our rules and assess whether
certain rules need to be updated, evaluate whether rules are
achieving their objectives, and identify rules that are falling
short and should be withdrawn or improved.'' \9\
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\8\ See comments of Commissioner Dawn D. Stump during Open
Commission Meeting on January 30, 2020, at 183 (noting that after
several years of no-action relief regarding trading on swap
execution facilities (``SEFs''), ``we have the benefit of time and
experience and it is time to think about codifying some of that
relief. . . . [T]he SEFs, the market participants, and the
Commission have benefited from this time and we have an obligation
to provide more legal certainty through codifying these provisions
into rules.''), available at https://www.cftc.gov/sites/default/files/2020/08/1597339661/openmeeting_013020_Transcript.pdf.
\9\ Statement of Commissioner Dawn D. Stump for CFTC Open
Meeting on: (1) Final Rule on Position Limits and Position
Accountability for Security Futures Products; and (2) Proposed Rule
on Public Rulemaking Procedures (Part 13 Amendments) (September 16,
2019), available at https://www.cftc.gov/PressRoom/SpeechesTestimony/stumpstatement091619.
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This second rule change would codify the alternative IM
calculation method set out in Staff no-action Letter No. 19-29.\10\
It would provide that a swap dealer may use the risk-based model
calculation of IM of a counterparty that is a CFTC-registered swap
dealer as the amount of IM that the former must collect from the
latter. The release states the Commission's expectation that this
alternative method of IM collection will be used by swap dealers
with a discrete and limited swap business consisting primarily of
entering into uncleared customer-facing swaps with end-user
counterparties, and then hedging the risk of those swaps with
uncleared swaps entered into with a few other swap dealers.
---------------------------------------------------------------------------
\10\ CFTC Letter No. 19-29, Request for No-Action Relief
Concerning Calculation of Initial Margin (December 19, 2019),
available at https://www.cftc.gov/LawRegulation/CFTCStaffLetters/letters.htm?title=&field_csl_letter_types_target_id%5B%5D=636&field_csl_divisions_target_id%5B%5D=596&field_csl_letter_year_value=2019&=Apply.
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Simply put, not all swap dealers are created equal. It is
therefore appropriate to tailor our uncleared margin regime
accordingly. Letter No. 19-29 recognized this reality and smoothed
the rough edges of our otherwise one-size-fits-all uncleared margin
rules, and it is appropriate to codify that result.
Yet, under the rule amendments being adopted, this alternative
method is subject to the condition that the uncleared swaps for
which a swap dealer uses the risk-based model calculation of IM of
its swap dealer counterparty are entered into for the purpose of
hedging the former's own risk from entering into customer-facing
swaps with non-swap dealer counterparties. This is a departure from
the GMAC Margin Subcommittee, which did not recommend such a
condition.
I am concerned by comments we received suggesting that this
condition may cause this rule change to prove unworkable in
practice.\11\ I am encouraged that the rulemaking release addresses
some of these comments by, among other things, confirming: (1) The
flexibility of swap dealers as part of their hedging strategy to
match a set of customer-facing swaps with one or more hedging swaps
undertaken with swap dealer counterparties; and (2) that customer-
facing swaps entered into through anticipatory hedging or that are
subsequently terminated would be deemed hedges for purposes of the
alternative method of IM calculation. Nevertheless, if over time,
market participants find that the hedging condition causes this rule
change to fail to fulfill its intended purpose, I urge them to alert
the Commission so that it can consider appropriate adjustments.
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\11\ See, e.g., Letter from BP Energy Company at 5 (given the
uncertainty as to what constitutes hedging, swap dealers may be
reluctant to rely on the alternative method of IM calculation) and 6
(limiting relief to hedge transactions may diminish its utility);
Letter from Futures Industry Association at 8 (complexity and added
risk of hedging condition will make the alternative method of IM
calculation impractical as counterparties will shy away from
undertaking swaps with swap dealers that rely on the alternative
method of calculating IM; also, cost, operational and documentation
burdens associated with hedging condition could lead small swap
dealers to cease providing risk management services to end-user
counterparties, leaving end users with unhedged risks).
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There Remains Unfinished Business
While I am pleased with the steps the Commission is taking,
there remains unfinished business in the implementation of uncleared
margin requirements. As an initial matter, U.S. prudential
regulators with oversight authority over bank swap dealers have not
adopted the same rule changes. As a result, although commenters
expressed support for the Commission proceeding with these rule
changes even in the absence of parallel action by the U.S.
prudential regulators, the operational difficulties confronting
market participants that are coming into scope of the margin rules
will not be fully addressed when they enter into uncleared swaps
with bank swap dealers. I look forward to continuing the dialogue
with our regulatory colleagues at other U.S. agencies to support
addressing these challenges.
In addition, the report of the GMAC Margin Subcommittee
recommended several actions, beyond those that we are adopting, to
address the hurdles associated with the application of uncleared
margin requirements to end-users. Having been present for the
development of the Dodd-Frank Act, I recall that the concerns
expressed by many lawmakers at the time focused on the application
of the new requirements to end-users. The unique challenges with
respect to uncleared margin that caused uneasiness back in 2009-2010
are now much more immediate as the margin requirements are being
phased in to apply to these end-users. As the calendar turns into
the new year, I look forward to continuing to work together to
address the other recommendations included in the GMAC Margin
Subcommittee's report regarding applying the uncleared margin rules
to financial end-users. The need to do so will
[[Page 249]]
only become more urgent as time marches on.
Conclusion
To be clear, these amendments to the uncleared margin rules are
not a ``roll-back'' of the margin requirements that apply today to
the largest financial institutions in their swap transactions with
one another. Rather, they reflect a thoughtful refinement of our
rules to align them with the rest of the international regulatory
community, and to take account of specific circumstances in which
the rules impose substantial practical and operational challenges
(i.e., they are not workable) when applied to financial end-users
that are now coming within the scope of their mandates.
I am very appreciative of the many people whose efforts have
contributed to bringing this rulemaking to fruition. First, the
members of the GMAC, and especially the GMAC Margin Subcommittee,
who devoted a tremendous amount of time to provide us with a high-
quality report on complex margin issues during the turmoil at the
start of the pandemic. Second, Chairman Tarbert and my fellow
Commissioners for working with me on these important issues. And
finally, the Staff of the Market Participants Division, whose
tireless efforts have enabled us to advance these initiatives to
assure that our uncleared margin rules are workable for all and are
in line with international standards, thereby enhancing compliance
consistent with our oversight responsibilities under the Commodity
Exchange Act.
Appendix 4--Statement of Commissioner Dan M. Berkovitz
I. Introduction
I support today's two final rules that make tailored amendments
to the CFTC's Margin Rule.\1\ The Margin Rule requires swap dealers
(``SDs'') and major swap participants (``MSPs'') for which there is
no prudential regulator to post and collect, each business day,
initial and variation margin for uncleared swap transactions with
each counterparty that is an SD, MSP, or a financial end user with
material swaps exposure (``MSE'').\2\ The Margin Rule is a lynchpin
of the Dodd-Frank reforms for swaps markets, and critical to
mitigating risks in the financial system that might otherwise arise
from uncleared swaps.\3\ I support the final rules because they
provide targeted, operational improvements to the Margin Rule;
include backstops to deter any potential abuse; and are unlikely to
increase risk to the U.S. financial system.
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\1\ Margin Requirements for Uncleared Swaps for Swap Dealers and
Major Swap Participants, 81 FR 636 (Jan. 6, 2016) (``Margin Rule'').
\2\ Although addressed in the final rules, there are currently
no registered MSPs.
\3\ Section 4s(e) of the Commodity Exchange Act (``CEA''), as
amended by the Dodd-Frank Act, requires the Commission to adopt
rules for minimum initial and variation margin for uncleared swaps
entered into by SDs and MSPs for which there is no prudential
regulator.
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The two final rules address: (1) The definition of MSE and an
alternative method for calculating initial margin (``MSE and Initial
Margin Final Rule''); and (2) the application of the minimum
transfer amount (``MTA'') for initial and variation margin (``MTA
Final Rule''). The final rules align Commission requirements with
international frameworks developed by the Basel Committee on Banking
Supervision and the International Organization of Securities
Commissions (``BCBS/IOSCO''),\4\ and incorporate recommendations
made to the CFTC's Global Markets Advisory Committee.\5\ The final
rules also build off existing CFTC staff no-action letters that in
some cases have been in place since 2017, and that have operated
with no apparent detrimental effects.
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\4\ BCBS/IOSCO, Margin requirements for non-centrally cleared
derivatives (July 2019), available at https://www.bis.org/bcbs/publ/d475.pdf. The BCBS/IOSCO framework was originally promulgated in
2013 and later revised in 2015.
\5\ Recommendations to Improve Scoping and Implementation of
Initial Margin Requirements for Non-Cleared Swaps, Report to the
CFTC's Global Markets Advisory Committee by the Subcommittee on
Margin Requirements for Non-Cleared Swaps (Apr. 2020), available at
https://www.cftc.gov/media/3886/GMAC_051920MarginSubcommitteeReport/download.
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II. MSE and Initial Margin Final Rule
The MSE and Initial Margin Final Rule amends the definition of
MSE to align it with the BCBS/IOSCO framework, including the method
for calculating the average daily aggregate notional amount
(``AANA'') of swaps. The final rule provides for calculations based
on the average of the last business day in each month of a three-
month period. The Commission previously raised concerns that this
method of AANA calculation could potentially become less
representative of an entity's true AANA and swaps exposure,
potentially through the use of ``window dressing'' to artificially
reduce AANA during the measurement period.\6\
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\6\ See Margin Rule, 81 FR at 645.
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The MSE and Initial Margin Final Rule includes an important new
provision to address this issue. The final rule explicitly prohibits
any ``[a]ctivities not carried out in the regular course of business
and willfully designed to circumvent calculation at month-end to
evade meeting the definition of material swaps exposure . . . .''
\7\ The addition of this language to the final rule's regulatory
text will help ensure that CFTC efforts at international
harmonization will not come at the expense of the safety and
soundness of the U.S. financial system.\8\ I thank the Chairman and
the CFTC staff for working with my office to include this provision.
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\7\ MSE and Initial Margin Final Rule at new Sec. 23.151
(defining ``Material Swaps Exposure'').
\8\ The preamble to the MSE and Initial Margin Final Rule also
notes an analysis by the CFTC's Office of the Chief Economist
indicating that the new month-end AANA calculation method captures
substantially the same entities and total number of entities as the
Commission's previous daily AANA calculation method. As with any
rulemaking, the Commission is free in the future to periodically
review its data and confirm that the new AANA calculation method is
performing as expected.
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The MSE and Initial Margin Final Rule will also allow SDs and
MSPs for which there is no prudential regulator (``Covered Swap
Entities'' or ``CSEs'') to rely on the initial margin calculations
of the more sophisticated counterparties with whom they transact
swaps to manage their risks. This flexibility is limited to
circumstances where a CSE enters into uncleared swaps with an SD,
MSP, or swap entity to hedge its customer-facing swaps. This
amendment to the Commission's existing rules could help promote
liquidity and competition in swaps markets by increasing choice for
end-users that are CSE customers.
The MSE and Initial Margin Final Rule provides helpful direction
regarding the scope of hedging swaps for purposes of relying on a
CSE counterparty's initial margin calculations. As set forth in the
preamble to the final rule, a hedging swap must be consistent
(although not identical) with the statutory definition of ``bona
fide hedging transaction or position'' in CEA section
4a(c)(2)(B).\9\ The final rule also makes clear that existing
Commission regulations require a CSE that relies on its
counterparty's initial margin calculations to also take steps to
``monitor, identify, and address potential shortfalls in the amounts
of [initial margin] generated by the counterparty on whose [initial
margin] model the CSE is relying.'' \10\
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\9\ 7 U.S.C. 6a(c)(2).
\10\ MSE and Initial Margin Final Rule at section II(B).
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III. MTA Final Rule
To reduce operational burdens associated with de minimis margin
transfers, the Margin Rule provides that a CSE is not required to
collect or post margin until the combined amount of initial margin
and variation margin that is required to be collected or posted and
that has not been collected or posted with respect to the
counterparty exceeds $500,000--the MTA.\11\ This MTA level, in part,
helps limit the amount of a counterparty's uncollateralized,
uncleared swaps exposure and mitigate any systemic risk arising from
such swaps.
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\11\ 17 CFR 23.151.
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The MTA Final Rule addresses the application of the $500,000 MTA
level to a counterparty's ``separately managed accounts,'' as well
as the use of separate MTAs for initial and variation margin.\12\
The MTA Final Rule codifies separate treatment for separately
managed accounts and permits an MTA of $50,000 for each such account
of a counterparty. This approach responds to practical limits on the
ability of asset managers, for example, to aggregate initial and
variation margin obligations across multiple separately managed
accounts owned by the same counterparty. The MTA Final Rule also
provides that if certain entities agree to separate MTAs for initial
margin and variation margin, the respective amounts of MTA must be
reflected in their required margin documentation.
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\12\ Both aspects of the MTA Final Rule were the subject of CFTC
staff no-action letters issued in 2017 and 2019, respectively.
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These new provisions balance concerns over operational
inefficiencies and practical challenges in the Commission's MTA
rules against concerns that they may result in the exchange of less
total margin than would be the case under the Commission's current
[[Page 250]]
requirements. Comments in response to the proposed rule noted the
difficulties that would be associated with creating numerous
separately managed accounts solely to evade the comparatively low
$50,000 MTA for separately managed accounts. The MTA Final Rule also
defines separately managed account so that the swaps of such account
are not subject to a netting of initial or variation margin
obligations. This potentially provides further disincentive to
create separately managed accounts solely for the purpose of evading
the $50,000 MTA level for such accounts.
IV. Conclusion
Mitigating systemic risk to the U.S. financial system was a
primary objective of the Dodd-Frank Act in 2010, and of subsequent
Commission rulemakings to implement Dodd-Frank, including the Margin
Rule adopted in 2016. The Commission must remain committed to the
Margin Rule and vigilant for any large pool of uncollateralized,
uncleared swaps exposure. Today's targeted final rules, which codify
existing practices, include embedded backstops, and provide tailored
operational enhancements to the Margin Rule, are unlikely to present
systemic risks.
I thank staff of the Market Participants Division for their work
on these final rules.
[FR Doc. 2020-27736 Filed 1-4-21; 8:45 am]
BILLING CODE 6351-01-P