# Customer Clearing Documentation, Timing of Acceptance for Clearing, and Clearing Member Risk Management > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A2012-7477 ## Record - **Collection:** Federal Register - **Document type:** Rule - **Published:** April 9, 2012 - **Citation:** 77 FR 21278 ## Text COMMODITY FUTURES TRADING COMMISSION 17 CFR Parts 1, 23, 37, 38, and 39 RIN 3038-0092, -0094 Customer Clearing Documentation, Timing of Acceptance for Clearing, and Clearing Member Risk Management AGENCY: Commodity Futures Trading Commission. ACTION: Final rule. SUMMARY: The Commodity Futures Trading Commission (“Commission” or “CFTC”) is adopting rules to implement new statutory provisions enacted by Title VII of the Dodd-Frank Wall Street Reform and Consumer Protection Act. These rules address: The documentation between a customer and a futures commission merchant that clears on behalf of the customer; the timing of acceptance or rejection of trades for clearing by derivatives clearing organizations and clearing members; and the risk management procedures of futures commission merchants, swap dealers, and major swap participants that are clearing members. The rules are designed to increase customer access to clearing, to facilitate the timely processing of trades, and to strengthen risk management at the clearing member level. DATES: This rule will become effective October 1, 2012. FOR FURTHER INFORMATION CONTACT: John C. Lawton, Deputy Director, 202-418-5480, jlawton@cftc.gov, and Christopher A. Hower, Attorney-Advisor, 202-418-6703, chower@cftc.gov, Division of Clearing and Risk, and Camden Nunery, Economist, 202-418-5723, Office of the Chief Economist, Commodity Futures Trading Commission, Three Lafayette Centre, 1155 21st Street NW., Washington, DC 20581; and Hugh J. Rooney, Assistant Director, 312-596-0574, hrooney@cftc.gov, Division of Clearing and Risk, Commodity Futures Trading Commission, 525 West Monroe Street, Chicago, Illinois 60661. SUPPLEMENTARY INFORMATION: Table of Contents y I. Background II. Customer Clearing Documentation A. Introduction B. Summary of Comments C. Discussion III. Time Frames for Acceptance Into Clearing A. Swap Dealer and Major Swap Participant Submission of Trades B. Swap Execution Facility and Designated Contract Market Processing of Trades C. Clearing Member and Clearing Organization Acceptance for Clearing D. Post-Trade Allocation of Bunched Orders IV. Clearing Member Risk Management A. Introduction B. Components of the Rule V. Effective Dates A. Summary of Comments B. Discussion VI. Consideration of Costs and Benefits VII. Related Matters A. Regulatory Flexibility Act B. Paperwork Reduction Act I. Background On July 21, 2010, President Obama signed the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank Act”). 1 Title VII of the Dodd-Frank Act amended the Commodity Exchange Act (“CEA” or “Act”) 2 to establish a comprehensive new regulatory framework for swaps. The legislation was enacted to reduce risk, increase transparency, and promote market integrity within the financial system by, among other things: (1) Providing for the registration and comprehensive regulation of swap dealers and major swap participants; (2) imposing clearing and trade execution requirements on standardized derivative products; (3) creating rigorous recordkeeping and real-time reporting regimes; and (4) enhancing the Commission's rulemaking and enforcement authorities with respect to, among others, all registered entities and intermediaries subject to the Commission's oversight. Title VII also includes amendments to the federal securities laws to establish a similar regulatory framework for security-based swaps under the authority of the Securities and Exchange Commission (“SEC”). 1 See Dodd-Frank Wall Street Reform and Consumer Protection Act, Public Law 111-203, 124 Stat. 1376 (2010). 2 7 U.S.C. 1 et seq . A fundamental premise of the Dodd-Frank Act is that the use of properly regulated central clearing can reduce systemic risk. Another tenet of the Dodd-Frank Act is that open access to clearing by market participants will increase market transparency and promote market efficiency by enabling market participants to reduce counterparty risk and by facilitating the offset of open positions. The Commission has adopted extensive regulations addressing open access and risk management at the derivatives clearing organization (“DCO”) level. 3 3 Derivatives Clearing Organization General Provisions and Core Principles, 76 FR 69334 (Nov. 8, 2011). Clearing members provide the portals through which market participants gain access to DCOs. Clearing members also provide the first line of risk management. Accordingly, in three related rulemakings, the Commission proposed regulations to increase customer access to clearing, 4 to facilitate the timely processing of trades, 5 and to strengthen risk management at the clearing member level. 6 In addition, in a fourth rulemaking, the Commission proposed regulations relating to the allocation of bunched orders. 7 The Commission is issuing final rules in each of these areas. 4 Customer Clearing Documentation and Timing of Acceptance for Clearing, 76 FR 45730 (Aug. 1, 2011). 5 Requirements for Processing, Clearing, and Transfer of Customer Positions, 76 FR 13101 (Mar. 10, 2011). 6 Clearing Member Risk Management, 76 FR 45724 (Aug. 1, 2011). 7 Adaption of Regulations to Incorporate Swaps, 76 FR 33066 (Jun. 7, 2011). More specifically, the regulations contained in this Adopting Release were proposed in four separate notices of proposed rulemaking (“NPRMs”). Sections 1.72, 1.74, 23.608, 23.610, 39.12(a)(1)(iv), and 39.12(b)(7) were proposed in Customer Clearing Documentation and Timing of Acceptance for Clearing, 8 sections 23.506, 37.702(b), and 38.601(b) were proposed in Requirements for Processing, Clearing, and Transfer of Customer Positions, 9 sections 1.73 and 23.609 were proposed in Clearing Futures Commission Merchant Risk Management, 10 and 1.35(a-1)(5)(iv) was proposed in Adaptation of Regulations to Incorporate Swaps. 11 The Commission is finalizing the rules contained in this Adopting Release together because they address three overarching, closely-connected aims: (1) Non-discriminatory access to counterparties and clearing; (2) straight-through processing; and (3) effective risk management among clearing members. Each of these provides substantial benefits for the markets and market participants. 8 See 76 FR 45730 (Aug. 1, 2011). 9 See 76 FR 13101 (Mar. 10, 2011). 10 See 76 FR 45724 (Aug. 1, 2011). 11 See 76 FR 33066 (Jun. 6, 2011). II. Customer Clearing Documentation A. Introduction As discussed in the notice of proposed rulemaking, 12 industry groups have developed a template for use by swap market participants in negotiating execution-related agreements with counterparties to swaps that are intended to be cleared. 13 The template includes optional annexes that make the clearing member to one or both of the executing parties a party to the agreement (the trilateral agreements). The trilateral agreements contain provisions that would permit a customer's futures commission merchant (“FCM”), in consultation with the swap dealer (“SD”) that is the customer's counterparty, to establish specific credit limits for the customer's swap transactions with the SD. The provisions further provide that the FCM will only accept for clearing those transactions that fall within these specific limits. The limits set for trades with the SD or MSP might be less than the overall limits set for the customer for all trades cleared through the FCM. The result would be to create a “sublimit” for the customer when trading with that SD or MSP. 12 See 76 FR 45730 at 45731, Aug. 1, 2011. 13 See http://www.futuresindustry.org/downloads/ClearedDerivativesExecutionAgreement_June142001.pdf . When a trade is rejected for clearing, the parties to that trade may incur significant costs. As the clearing of swaps increases pursuant to the Dodd-Frank Act, the likelihood and size of such potential costs could also increase, according to the proponents of the trilateral agreements. The trilateral agreements were intended to limit these potential costs. The Commission expressed concern in the notice of proposed rulemaking that such arrangements potentially conflict with the concepts of open access to clearing and competitive execution of transactions. 14 To address these concerns and to provide further clarity in this area, the Commission proposed § 1.72 relating to FCMs, § 23.608 relating to SDs and MSPs, and § 39.12(a)(1)(vi) relating to DCOs. These regulations would prohibit arrangements involving FCMs, SDs, MSPs, or DCOs that would (a) disclose to an FCM, SD, or MSP the identity of a customer's original executing counterparty; (b) limit the number of counterparties with whom a customer may enter into a trade; (c) restrict the size of the position a customer may take with any individual counterparty, apart from an overall credit limit for all positions held by the customer at the FCM; (d) impair a customer's access to execution of a trade on terms that have a reasonable relationship to the best terms available; or (e) prevent compliance with specified time frames for acceptance of trades into clearing. 14 Id. at 45732. B. Summary of Comments The Commission received a total of 38 comment letters directed specifically at the proposed documentation rules. 15 Of the 38 commenters, 30 supported the proposed rules. 16 They included asset managers, market makers, trading platforms, clearing organizations, bank/dealers, a non-profit organization, and a private citizen. Within this group, some commenters addressed only certain aspects of the rules and were silent on other sections and some requested clarification of certain provisions. 15 Comment files for each proposed rulemaking can be found on the Commission Web site, www.cftc.gov. Commenters include: Chris Barnard (“Barnard”); MarkitSERV (“Markit”); Swaps & Derivatives Market Association (“SDMA”); Better Markets; IntercontinentalExchange, Inc. (“ICE”); ISDA FIA (“ISDA”); The Alternative Investment Management Association Ltd. (“AIMA”); CME Group Inc. (“CME”); Morgan Stanley; Edison Electric Institute (“EEI”); State Street Corporation (“State Street”); New York Portfolio Clearing (“NYPC”); Asset Management Group of the Securities Industry and Financial Markets Association (“SIFMA”); Vanguard; AllianceBernstein L.P. (“Alliance Bernstein”); Minneapolis Grain Exchange, Inc. (“MGEX”); Atlantic Trading USA LLC; Belvedere Trading; Bluefin Trading, LLC; Chopper Trading LLC; CTC Trading Group, LLC; DRW Holdings, LLC; Eagle Seven, LLC; Endeavor Trading, LLC; Flow Traders US LLC; Geneva Trading USA, LLC; GETCO; Hard Eight Futures; HTG Capital Partners; IMC Financial Markets; Infinium Capital Management LLC; Kottke Associates, LLC; Marquette Partners, LP; Nico Holdings LLC; Optiver US LLC; RGM Advisors, LLC; Templar Securities, LLC; Tower Research Capital LLC; TradeForecaster Global Markets LLC; Traditum Group, LLC; WH Trading LLC; XR Trading LLC (“Trading Firms”); Managed Funds Association (“MFA”); Arbor Research & Trading Inc. (“Arbor”); Eris Exchange (“Eris”); ICI; DRW Trading Group (“DRW”); Spring Trading, Inc. (“Spring Trading”); Javelin Capital Markets, LLC (“Javelin”); The Committee on Investment of Employee Benefit Assets (“CIEBA”); Citadel LLC (“Citadel”); Vizier Ltd. (“Vizier”); Federal Home Loan Banks (“FHLB”); Jefferies & Company, Inc. (“Jeffries”); UBS Securities LLC (“UBS”); Wells Fargo Securities (“WF”); LCH.Clearnet Group Limited (“LCH”); D. E. Shaw group (“D. E. Shaw”); Bank of America, Merrill Lynch, BNP Paribas, Citi, Credit Suisse Securities (USA) LLC, Deutsche Bank AG, Goldman Sachs, HSBC, J.P. Morgan, Morgan Stanley (“Banks”); Deutsche Bank (“DB”); Societe Generale (“SG”); The Association of Institutional Investors (“AII”); and The Committee on Capital Markets Regulation (“Committee”). 16 AII, AIMA, AllianceBernstein, Arbor, Better Markets, Barnard, CIEBA, Citadel, CME, D. E. Shaw, DRW, Eris, FHLB, ICE, ICI, Javelin, Jeffries, LCH, Markit, MFA, MGEX, NYPC, SDMA, SIFMA, Spring Trading, State Street, Trading Firms, Vanguard, Vizier, and WF. Eight commenters expressed opposition. 17 They include bank/dealers, an association of electric utilities, and an asset manager. Within this group as well, some commenters addressed only certain aspects of the rules and were silent on other sections and some requested clarification of certain provisions. 17 DB, ISDA, SG, UBS, Morgan Stanley, the Banks, EEI, and the Committee. Three commenters in support—Arbor, Citadel, and Eris—urged the Commission to make these rules a top priority in the final rulemaking process. Numerous commenters stated that the proposed rules would increase open access to clearing and execution, reduce risk, foster competition, lower costs, and increase transparency. FHLB expressed the view that the proposed rules will facilitate the transition to central clearing. Barnard and Vanguard asserted that the proposed rules will prevent conflicts of interest, and achieve clear walls between clearing and trading activities involving FCMs and affiliates. Six commenters went into detail why the trilateral agreements are bad for the markets, noting that such agreements discourage competition and efficient pricing, compromise anonymity, reduce liquidity, increase the time between execution and clearing, introduce conflicts of interest, and prevent the success of swap execution facilities (“SEFs”). 18 SDMA commented that while “the SDMA is philosophically loathe to encourage possible government [interference] with private contracts between two parties,” the proposed rules are necessary in their entirety in this instance, and that the proposed rules are not overly prescriptive. Vanguard, estimated that if it was required to enter into trilateral agreements, it would have to negotiate approximately 4,800 new trilateral agreements per year. 19 18 AIMA, Javelin, SG, SIFMA, Spring Trading, and Vanguard. 19 Vanguard. Seven commenters in opposition contended that without the trilateral agreements, some market participants may have reduced access to markets. 20 (ISDA and the Committee did not address this issue.) They asserted that the trilateral agreements facilitate risk management and certainty of execution. DB believes that the trilateral agreements provide a means of ensuring compliance with mandatory clearing. DB also commented that if an SD does not know whether a swap will be cleared prior to execution, it will not know whether it should apply risk filters that take account of the swap as a cleared transaction or a bilateral one. SG commented that the rules will decrease liquidity and limit market participation, and that without the certainty of trilateral agreements, the rules may foster competing and inconsistent technology. 20 Banks, DB, EEI, ISDA, Morgan Stanley, SG, and UBS. UBS believes that potential abuse of credit arrangements could be more narrowly tailored than the proposed rule. The Banks asserted that the credit filter infrastructure necessary to maximize execution choice for customers while ensuring prudent risk management is not currently available. The Banks suggested that instead of prohibiting the trilateral agreements, the Commission could require that the allocation of credit limits across executing counterparties be specified by the customer, rather than the FCM, who would confirm the customer's allocation to the identified executing counterparties. Morgan Stanley requested clarification that the proposed rules only apply to arrangements between clearing firms and executing swap dealers and customers with respect to swaps, not futures. Morgan Stanley also commented that the Commission should alter the language in proposed § 1.72 and § 23.608 from “relationship to the best terms available” to “execution with an executing swap dealer of the customer's choice.” Spring Trading requested clarification that “on terms that have a reasonable relationship to the best terms available” refers to the best terms available on any market regulated by the Commission, which would prohibit an FCM from establishing special hurdles for its clearing customers in order to trade on a particular SEF. C. Discussion The Commission found persuasive the comments stating that the proposed rules would increase open access to clearing and execution, reduce risk, foster competition, lower costs, and increase transparency. The Commmission notes that cleared futures markets have operated for decades without any need for the types of provisions prohibited by the rules. Similarly, trades executed over-the-counter (“OTC”) have been successfully cleared by CME and ICE on behalf of customers for approximately ten years without such provisions. Specifically, the Commission believes that, as discussed by numerous commenters, (1) disclosure of a customer's original executing counterparty could have potentially anticompetitive effects, (2) limiting the number of counterparties would hurt the customer's access to the best price as well as general market liquidity, (3) restricting the size of trades with particular counterparties also would hurt the customer's access to the best price as well as general market liquidity, and (4) restrictions on the number of counterparties and on the size of trades with them would slow down acceptance for clearing thereby causing the very problem the restrictions were purportedly designed to address. The Commission believes that the risks the trilateral agreements were designed to address can be mitigated by other means without incurring the negative consequences described above. Specifically, the processing rules described in section III. below and the risk management rules described in section IV. below would significantly diminish the exposure of dealers, their counterparties, and their respective FCMs to risk. Moreover, the Commission notes that there are several sections of the CEA and Commission regulations that support the premise underlying these final rules. Section 4d(c) of the CEA, as amended by the Dodd-Frank Act, directs the Commission to require FCMs to implement conflict of interest procedures that address such issues the Commission determines to be appropriate. Similarly, section 4s(j)(5), as added by the Dodd-Frank Act, requires SDs and MSPs to implement conflict of interest procedures that address such issues the Commission determines to be appropriate. Section 4s(j)(5) also requires SDs and MSPs to ensure that any persons providing clearing activities or making determinations as to accepting clearing customers are separated by appropriate informational partitions from persons whose involvement in pricing, trading, or clearing activities might bias their judgment or contravene the core principle of open access. Pursuant to these provisions, the Commission promulgated § 1.71(d) relating to FCMs and § 23.605(d) relating to SDs and MSPs. 21 These regulations prohibit SDs and MSPs from interfering or attempting to influence the decisions of affiliated FCMs with regard to the provision of clearing services and activities, and prohibit FCMs from permitting them to do so. 21 “Swap Dealer and Major Swap Participant Recordkeeping and Reporting, Duties, and Conflicts of Interest Policies and Procedures; Futures Commission Merchant and Introducing Broker Conflicts of Interest Policies and Procedures; Swap Dealer, Major Swap Participant, and Futures Commission Merchant Chief Compliance Officer,” available at http://www.cftc.gov/LawRegulation/DoddFrankAct/Rulemakings/DF_4_BusConductStandardsInternal/ssLINK/federalregister022312b. Section 4s(j)(6) of the CEA prohibits an SD or MSP from adopting any process or taking any action that results in any unreasonable restraint on trade or imposes any material anticompetitive burden on trading or clearing, unless necessary or appropriate to achieve the purposes of the Act. To implement Section 4s(j)(6) of the CEA, the Commission has promulgated § 23.607 in a separate rulemaking. 22 22 Id. Section 2(h)(1)(B)(ii) of the CEA requires that DCO rules provide for the non-discriminatory clearing of swaps executed bilaterally or through an unaffiliated designated contract market (“DCM”) or SEF. The Commission has adopted § 39.12(b)(3) to implement this provision. 23 23 76 FR 69334, Nov. 8, 2011. The trilateral agreements potentially conflict with the recently-adopted §§ 1.71(d), 23.605(d), 23.607, and 39.12. As certain commenters have stated, the provisions of the trilateral agreements described above could lead to undue influence by FCMs on a customer's choice of counterparties or undue influence by SDs on a customer's choice of clearing member. They could constrain a customer's opportunity to obtain competitive execution of the trade by limiting the number of potential counterparties. The documentation rules covered by this rulemaking are consistent with, and complementary to, the recently adopted rules. The rules in this Federal Register release address specific circumstances that have been identified to the Commission by market participants, while the previously adopted rules set forth more general principles. The Commission believes that, in this case, market participants and the general public would be best served by providing both the clarity of a bright-line test for certain identifiable situations and the guidance of more broadly-articulated principles. Contrary to the assertion of some commenters, the rules do not prohibit trilateral agreements; they prohibit certain provisions whether contained in a trilateral or a bilateral agreement. The rules have been tailored to address specific issues identified by market participants. The Commission emphasizes that nothing in these rules would restrain an SD or MSP from establishing bilateral limits with each of its counterparties. Further, nothing in these rules would impair an SD's or MSP's ability to conduct due diligence with regard to each of its counterparties, including evaluation of balance sheet, credit ratings, overall market exposure, or similar factors. The Commission is revising the language in §§ 23.608 and 23.608(c) to clarify that, for swaps that will be submitted for clearing, an SD or MSP may continue to manage its risk by limiting its exposure to the counterparty with whom it is trading. This clarification is intended to emphasize that SDs and MSPs may continue to conduct appropriate risk management exercises. Moreover, the Commission believes that this modification is responsive to the concern raised by some commenters that until straight through processing is achieved, SDs and MSPs will still need to manage risk to a counterparty before a trade is accepted or rejected for clearing. 24 Furthermore, the Commission also believes that § 23.608 does not preclude an SD or MSP from requiring that a counterparty confirm that the counterparty has an account with an FCM through which the counterparty will clear. 24 ISDA. In response to the Morgan Stanley request for clarification, the Commission confirms that the rules, as drafted, only apply to swaps. As noted, similar provisions have never been needed and, therefore, were not proposed for futures. The Commission has determined not to modify the language in §§ 1.72 and 23.608 as suggested by Morgan Stanley from “relationship to the best terms available” to “execution with an executing swap dealer of the customer's choice.” The rule should not imply that customers may only trade with swap dealers. Moreover, some swap markets operate anonymous central limit order books. In these instances, the counterparty is immaterial; trading decisions are based on solely the terms of the trade. The Commission also has determined not to adopt the clarification suggested by Spring Trading. Requiring execution on the best terms available on any market regulated by the Commission could impose burdensome search costs. 25 Moreover, there could be operational costs in establishing connectivity to every market. It is not clear how many markets there will be or how compatible their systems will be with one another or with the systems of all FCMs and SDs. Upon review of the comments, the Commission is adopting §§ 1.72, and 39.12(a)(1)(vi) as proposed, and § 23.608 with the modification described above. 25 The Commission notes that this rule does not impose a best execution requirement. This rule merely prohibits a contractual provision that would impair a customer's access to execution of a trade on terms that have a reasonable relationship to the best terms available. III. Time Frames for Acceptance Into Clearing A. Swap Dealer and Major Swap Participant Submission of Trades 1. Introduction Section 731 of the Dodd-Frank Act amended the CEA by adding a new section 4s, which sets forth a number of requirements for SDs and MSPs. Specifically, section 4s(i) of the CEA establishes swap documentation standards for those registrants. Section 4s(i) requires SDs and MSPs to “conform with such standards as may be prescribed by the Commission by rule or regulation that relate to timely and accurate confirmation, processing, netting, documentation, and valuation of all swaps.” Section 8a(5) of the CEA authorizes the Commission to promulgate such regulations as, in the judgment of the Commission, are reasonably necessary to effectuate any of the provisions or to accomplish any of the purposes of the Act. 26 Pursuant to these provisions, and in order to ensure compliance with any mandatory clearing requirement issued pursuant to section 2(h)(1) of the CEA and to promote the mitigation of counterparty credit risk through the use of central clearing, the Commission proposed § 23.506. 26 7 U.S.C. 12a(5). As proposed, § 23.506(a)(1) would require that SDs and MSPs have the ability to route swaps that are not executed on a SEF or DCM to a DCO in a manner that is acceptable to the DCO for the purposes of risk management. Under § 23.506(a)(2), as proposed, SDs and MSPs would also be required to coordinate with DCOs to facilitate prompt and efficient processing in accordance with proposed regulations related to the timing of clearing by DCOs. As proposed, § 23.506(b) would set forth timing requirements for submitting swaps to DCOs in those instances where the swap is subject to a clearing mandate and in those instances when a swap is not subject to a mandate. Under § 23.506(b)(1), as proposed, an SD or MSP would be required to submit a swap that is not executed on a SEF or DCM, but is subject to a clearing mandate under section 2(h)(1) of the CEA (and has not been electively excepted from mandatory clearing by an end user under section 2(h)(7) of the CEA) as soon as technologically practicable following execution of the swap, but no later than the close of business on the day of execution. 27 27 The Commission notes that it is not expressing an opinion at this time as to whether a mandatory clearing determination must be made in conjunction with a mandatory trading determination. For those swaps that are not subject to a clearing mandate, but for which both counterparties to the swap have elected to clear the swap, under § 23.506(b)(2), as proposed, the SD or MSP would be required to submit the swap for clearing not later than the next business day after execution of the swap, or the agreement to clear, if later than execution. This time frame reflects the possibility that in the case of a bilateral swap, the parties may need time to agree to terms that would conform with a DCO's requirements for swaps it will accept for clearing. As noted previously, any delay between execution and novation to a clearinghouse potentially presents credit risk to the swap counterparties and the DCO because the value of the position may change significantly between the time of execution and the time of novation, thereby allowing financial exposure to accumulate in the absence of daily mark-to-market. The proposed regulation was designed to limit this delay as much as reasonably possible. 2. Summary of Comments MFA generally supported proposed §§ 23.506(a) and 23.506(b). CME commented that the regulations should not require any particular system or methodology that SDs or MSPs must use for submitting swaps to DCOs. Instead, the regulations should give each DCO the flexibility to work with SDs and MSPs to implement various systems and methodologies for swap submission, which may be subject to change over time as cleared swap markets continue to develop and grow. ISDA also indicated that the rule should permit SDs and MSPs, coordinating with their DCOs, to be free to select the manner by which they route their swaps to DCOs. ISDA, however, commented that it is not apparent what proposed § 23.506(a) adds to the § 39.12(a)(3) requirement that clearing members have adequate operational capacity to meet obligations arising from their participation in DCOs. ISDA also noted that market participants have for some time been developing industry standards for the prompt and efficient processing of cleared swap transactions, and it suggested that the Commission study these standards and defer to them wherever possible. MarkitSERV commented that the requirement to submit swaps “as soon as technologically practicable following execution” may be inappropriate in light of the Commission's proposed rule regarding confirmation requirements, which requires that swap transactions be confirmed within a certain time period after execution. MarkitSERV suggested that the regulation reference the time of confirmation as opposed to the time of execution. MarkitSERV also noted that requiring SDs and MSPs to submit swaps for clearing “no later than the close of business on the day of execution” fails to accommodate transactions that occur late in the day and suggested a 24 hour time period. MarkitSERV also commented that there are numerous benefits to using third party middleware providers for routing and processing services, and it suggested that the Commission permit swap counterparties to control how they process transactions. According to MarkitSERV, counterparties should be permitted to use independent third party providers for confirming, routing, and satisfying the portfolio reconciliation requirements proposed by the Commission. MarkitSERV also suggested that the Commission clarify how proposed § 23.506 would interact with proposed § 23.501, which requires confirmation of all swaps, and with the then-proposed rules requiring reporting of swap transactions to an SDR. 28 28 Swap Data Repositories: Registration Standards, Duties and Core Principles, 76 FR 54538 (Oct. 31, 2011). FIA commented that SDs and MSPs are unlikely to submit a swap directly to a DCO for clearing. Instead, they will first affirm the swap by, for example, submitting the relevant details to an affirmation platform and then submit the swap to their respective clearing members for submission to a DCO. FIA suggested that the Commission should require SDs and MSPs to have a clearing arrangement in place with clearing members that, in turn, have the capacity to route orders to a DCO in a manner acceptable to it. FIA also believes that the “no later than close of business” could not be satisfied by swaps that are entered into later in the day and suggests the proposed rule be revised to provide the parties greater flexibility to submit a swap for clearing within a reasonable time as prescribed by the applicable DCO. Finally, to encourage the voluntary use of clearing where such swaps are not required to be cleared, FIA suggests that the proposed § 23.506(b)(2) be revised to permit the parties to submit such trades for clearing on any date to which the parties and their respective clearing firms agree. The Options Clearing Corporation (“OCC”) commented that the phrase “for purpose of risk management” in proposed §§ 23.506(a)(1) and 37.702(b)(1) creates ambiguity because a DCO may have established routing requirements for reasons unrelated to risk management such as increased efficiency or decreased administrative costs. OCC believes that a party that submits transactions to a DCO for clearing should be required to ensure that it has the ability to route the transactions to the DCO in a manner that meets all of the DCO's legitimate requirements, and not only those that are related to risk management. OCC suggests that the Commission delete the phrase “for purpose of risk management” and substitute the phrase “for clearing.” SDMA supported the amendments to proposed § 23.506, and suggested that the Commission promulgate rules that ensure post-trade and pre-trade integrity. According to SDMA, the buyer and seller must know immediately whether their trade has been accepted for clearing. Trade uncertainty, SDMA continued, caused by the time delay between the time of trade execution and the time of trade acceptance into clearing, undermines market integrity in the post-trade work process. SDMA also stated that trade uncertainty also directly impedes liquidity, efficiency, and market stability. CME commented that the technology for SDs and MSPs to route swaps to a DCO may be as simple as entering the necessary data in a web page. It suggested that a more apt standard may be “as soon as operationally feasible.” CME also believes that the proposed time frames for submission of swaps are appropriate and operationally feasible, and it is not aware of systemic obstacles to the coordination between DCOs, MSPs, and SDs required under the proposed regulation. FHLBanks commented that the time frames are appropriate provided that the Commission establishes a cut-off time for determining the day on which a swap is executed because it may not be “technologically practicable” for a swap that is executed towards the end of a day to be submitted for clearing that day. FHLBanks suggests the rule specify that swaps executed after 4 p.m. New York time shall be deemed to be executed on the following business day. ISDA commented that submission by the close of business may not be technologically practicable. In addition, ISDA suggested that trades will need to go through an affirmation platform and clearing members will need to screen trades for compliance with their own standards and with DCO standards, and this may not occur before the end of the business day. ISDA also expressed concern that mandatory, same day submission may invite error because clearing members may focus on speed over accuracy. ISDA suggested that the Commission impose an “as soon as reasonably and technologically practicable” standard. ISDA also commented that § 23.506(b)(2) should not set forth a time period for clearing. According to ISDA, limiting the flexibility of parties voluntarily seeking to clear will only create disincentives to such voluntarism, including confusion and potential legal uncertainty. Thus, ISDA suggested that where parties voluntarily elect to submit a swap for clearing, all aspects of that election should be left to the parties to determine contractually. Freddie Mac commented that swap dealers periodically enter mismatched data and send swap confirmations that incorrectly reflect the principal terms of transactions. As a result, Freddie Mac believes that a standard for submitting clearing submissions that starts the clock at execution would be confusing and impractical and it could be detrimental to counterparties who are subject to undue pressure to quickly assent to terms dictated by a market professional. Freddie Mac also commented that establishing a close of business deadline for submission of swaps for clearing would impair late day trading and potentially reduce market integrity. Freddie Mac suggested that the Commission modify proposed § 23.506(b)(1) to provide that SDs and MSPs are required to submit swaps that are not executed on a SEF or DCM but that are subject to a clearing mandate as soon as commercially and operationally practical for both parties but no later than 24 hours after execution. LCH commented that swaps not subject to mandatory clearing obligations should not be subject to any timeline. LCH believes that a DCO should be able to accept such trades whenever they are submitted, provided that it has sufficient margin from both sides. 3. Discussion Proposed § 23.506(a) does not prescribe the manner by which SDs or MSPs route their swaps to DCOs and provide for prompt and efficient processing. It is possible that DCOs will enable SDs and MSPs to submit their swaps to clearing via third-party platforms and other service providers. DCOs will certainly specify the role of their clearing members in the process. The flexibility of the rule makes it consistent with the comments of MFA, CME, ISDA, MarkitSERV, and FIA. The Commission concurs with OCC's comment that a DCO may have requirements beyond risk management. The issue raised by SDMA is addressed in the customer documentation provisions. As discussed above, any delay between the time of execution and the time of clearing creates financial risk for the parties to the trade and for their clearing FCMs. For trades that are not subject to a clearing mandate, the parties are not bound by any submission deadlines unless and until they voluntarily agree to have the trade cleared. Once they make that decision, however, it will reduce risk for both the parties, as well as their respective clearing members, to get the trade submitted for clearing as soon as practicable. Therefore, in most cases it seems likely that the parties will comply with the timing set forth within the rule because it is in their own best interests to do so. But, to leave “all aspects” to the parties, as ISDA suggested, creates the possibility that one party could expose itself, its counterparty, and its clearing member to unnecessary risk by delaying submission. 29 In light of all the comments, the Commission believes that the timeframes for submission set forth in the proposed rules are reasonable. 29 See ISDA. The Commission is not defining “business day” in this rule, in order to allow the entity accepting the trade for clearing, the DCO, to establish its own definition. The Commission understands that a DCO may choose to expand its business hours in order to offer a competitive advantage, and that this rule should not prescribe when swaps may be accepted for clearing. The Commission further believes that if a trade is submitted for clearing near the end of a business day for a particular DCO, but is ultimately not accepted or rejected before that deadline, the DCO will determine whether the trade will be accepted or rejected for clearing for the following day in accordance with § 39.12. The Commission is adopting § 23.506(a)(1) with the amendment suggested by OCC, changing “for purposes of risk management” to “for purposes of clearing.” The Commission is adopting §§ 23.506(a)(2) and 23.506(b) as proposed. B. Swap Execution Facility and Designated Contract Market Processing of Trades 1. Introduction For prompt and efficient clearing to occur, the rules, procedures, and operational systems of the trading platform and the clearinghouse must align. Vertically integrated trading and clearing systems currently process high volumes of transactions quickly and efficiently. The Commission believes that trading platforms and DCOs under separate control should be able to coordinate with one another to achieve similar results. The Commission proposed §§ 37.700 through 37.703 to implement SEF Core Principle 7 (Financial Integrity of Transactions), pursuant to its rulemaking authority under sections 5h(h) and 8a(5) of the CEA. 30 Core Principle 7 requires a SEF to “establish and enforce rules and procedures for ensuring the financial integrity of swaps entered on or through the facilities of the swap execution facility, including the clearing and settlement of the swaps pursuant to section 2(h)(1) [of the CEA].” 31 As originally proposed, § 37.702(b) would require a SEF to provide for the financial integrity of its transactions cleared by a DCO by ensuring that the SEF has the capacity to route transactions to the DCO in a manner acceptable to the DCO for purposes of risk management. 32 As part of the processing rulemaking, the Commission proposed to renumber previous § 37.702(b) as paragraph (b)(1) and add a new paragraph (b)(2) to require the SEF to additionally provide for the financial integrity of cleared transactions by coordinating with each DCO to which it submits transactions for clearing, in the development of rules and procedures to facilitate prompt and efficient transaction processing in accordance with the requirements of § 39.12(b)(7) of the Commission's regulations. 33 30 See Core Principles and Other Requirements for Swap Execution Facilities, 76 FR 1214 (Jan. 7, 2011); 7 U.S.C. 7b-3(h); and 7 U.S.C. 12a(5). 31 See section 5h(f)(7) of the CEA, 7 U.S.C. 7b-3(f)(7). 32 See 76 FR at 1248. Section 37.702(b), as originally proposed, referred to “ongoing” risk management. In renumbering and finalizing this provision herein, the Commission is deleting the term “ongoing” because it is superfluous and could create confusion when read in conjunction with other Commission regulations that refer to “risk management.” See, e.g., proposed § 39.13 relating to risk management for DCOs, 76 FR at 3720. 33 See 76 FR 13101 (Mar. 10, 2011) (setting forth time frames for accepting or rejecting swaps for clearing). Similarly, the Commission previously proposed §§ 38.600 through 38.607 to implement DCM Core Principle 11 (Financial Integrity of Transactions) pursuant to its rulemaking authority under sections 5(d)(1) and 8a(5) of the CEA. 34 Core Principle 11 requires a DCM to “establish and enforce-(A) rules and procedures for ensuring the financial integrity of transactions entered into on or through the facilities of the contract market (including the clearance and settlement of the transactions with a derivatives clearing organization); and (B) rules to ensure—(i) the financial integrity of any—(I) futures commission merchant; and (II) introducing broker; and (ii) the protection of customer funds.” 35 34 See Core Principles and Other Requirements for Designated Contract Markets, 75 FR 80572 (Dec. 22, 2010); 7 U.S.C. 7(d)(1); and 7 U.S.C. 12a(5). 35 See Section 5(d)(11) of the CEA, 7 U.S.C. 7(d)(11). As originally proposed, § 38.601 would require that transactions executed on or through a DCM, other than transactions in security futures products, must be cleared through a registered DCO in accordance with the provisions of part 39 of the Commission's regulations. 36 The Commission later proposed to renumber this provision as paragraph (a) of proposed § 38.601 and add a new paragraph (b) to specifically require the DCM to coordinate with each DCO to which it submits transactions for clearing, in the development of DCO rules and procedures to facilitate prompt and efficient transaction processing in accordance with the requirements of § 39.12(b)(7) of the Commission's regulations. 37 36 See 75 FR at 80618. 37 See 76 FR 13101. 2. Summary of Comments FIA supported the rules and recommended that each SEF and DCM be required to assure equal access to all DCOs that wish to clear trades executed through the facilities of the SEF or DCM. According to FIA, failure to grant such access would be inconsistent with section 2(h) of the CEA as amended by the Dodd-Frank Act, which (1) provides for the non-discriminatory clearing of swaps executed bilaterally or on an unaffiliated SEF or DCM, and (2) provides that, with respect to a swap that is entered into by a SD or MSP, the counterparty shall have the sole right to select the DCO through which the swap is cleared. LCH also concurred with both rules. It commented that it is of paramount importance that: (1) A SEF or DCM seeking access to a DCO must first be required to meet all regulatory requirements; (2) each SEF and DCM must code to each DCO's application programming interfaces; and (3) each SEF and DCM must treat DCOs on a nondiscriminatory basis. ISDA commented that coordination among the parties subject to the Commission's new swap jurisdiction is critical to ensuring that the rulemaking process is effective without disrupting the swap markets and applauds this proposal. ISDA suggested that an existing standard managed by ISDA and used between participating companies be adopted. As noted above, OCC commented that the phrase “for purpose of risk management” in proposed §§ 23.506(a)(1) and 37.702(b)(1) creates ambiguity because a DCO may have established routing requirements for reasons unrelated to risk management such as increased efficiency or decreased administrative costs. OCC believes that a party that submits transactions to a DCO for clearing should be required to ensure that it has the ability to route the transactions to the DCO in a manner that meets all of the DCO's legitimate requirements, and not only those that are related to risk management. OCC suggests that the Commission delete the phrase “for purpose of risk management” and substitute the phrase “for clearing.” 3. Discussion Rules, procedures, and operational systems, along the lines set forth in the rules, currently work well for many exchange-traded futures. Similar requirements could be applied across multiple exchanges and clearinghouses for swaps. The parties would need to have clearing arrangements in place with clearing members in advance of execution. In cases where more than one DCO offered clearing services, the parties also would need to specify in advance where the trade should be sent for clearing. The Commission concurs with OCC's comment that a DCO may have requirements beyond risk management. To the extent that FIA, LCH, and ISDA recommended that the Commission adopt additional requirements beyond those set forth in the rule as proposed, the Commission believes it is premature to adopt the additional requirements at the present time. However, the Commission will monitor the implementation of this rule and may propose amendments in the future. The Commission is adopting § 38.601 as proposed. The Commission is adopting § 37.702 with the amendment suggested by OCC changing “for purposes of risk management” to “for purposes of clearing.” C. Clearing Member and Clearing Organization Acceptance for Clearing 1. Introduction As noted above, a goal of the Dodd-Frank Act is to reduce risk by increasing the use of central clearing. Minimizing the time between trade execution and acceptance into clearing is an important risk mitigant. This time lag potentially presents credit risk to the swap counterparties, clearing members, and the DCO because the value of a position may change significantly between the time of execution and the time of novation, thereby allowing financial exposure to accumulate in the absence of daily mark-to-market. Among the purposes of clearing are the reduction of risk and the enhancement of financial certainty, and this time lag diminishes the benefits of clearing swaps that Congress sought to promote in the Dodd-Frank Act. A delay in clearing is also inconsistent with other proposed regulations concerning product eligibility and financial integrity of transactions insofar as the delay reduces liquidity and increases risk. 38 38 See 76 FR 1214, Jan. 7, 2011. In this rulemaking, the Commission is seeking to expand access to, and strengthen the financial integrity of, the swap markets subject to Commission oversight by providing for prompt processing, submission, and acceptance of swaps eligible for clearing by DCOs. This requires setting an appropriate time frame for the processing and submission of swaps for clearing, as well as a time frame for the clearing of swaps by the DCO. As originally proposed, § 39.12(b)(7)(i) required DCOs to coordinate with DCMs and SEFs to facilitate prompt and efficient processing of trades. In response to a comment, the Commission later proposed to require “prompt, efficient, and accurate processing of trades.” 39 39 See letter from Robert Pickel, Executive Vice Chairman, International Swaps and Derivatives Association, dated April 8, 2011. Recognizing the key role clearing members play in trade processing and submission of trades to central clearing, the Commission also proposed parallel provisions for coordination among DCOs and clearing members. Proposed § 39.12(b)(7)(i)(B) would require DCOs to coordinate with clearing members to establish systems for prompt processing of trades. Proposed §§ 1.74(a) and 23.610(a) would require reciprocal coordination with DCOs by FCMs, SDs, and MSPs that are clearing members. As originally proposed, § 39.12(b)(7)(ii) required DCOs to accept immediately upon execution all transactions executed on a DCM or SEF. 40 A number of DCOs and other commenters expressed concern that this requirement could expose DCOs to unwarranted risk because DCOs need to be able to screen trades for compliance with applicable clearinghouse rules related to product and credit filters. 41 The Commission recognized that while immediate acceptance for clearing upon execution currently occurs in some futures markets, it might not be feasible for all cleared markets at this time. For example, where the same cleared product is traded on multiple execution venues, a DCO needs to be able to aggregate the risk of trades coming in to ensure that a clearing member or customer has not exceeded its credit limits. Accordingly, the Commission modified proposed § 39.12(b)(7)(ii) to permit DCOs to screen trades against applicable product and credit criteria before accepting or rejecting them. 42 Consistent with principles of open access, the proposal would require that such criteria be non-discriminatory with respect to trading venues and clearing participants. 40 See Requirements for Processing, Clearing, and Transfer of Customer Positions, 76 FR 13101 (March 10, 2011). 41 See letter from Craig S. Donohue, Chief Executive Officer, CME Group, dated April 11, 2011; letter from R. Trabue Bland, Vice President and Assistant General Counsel, ICE, dated April, 11, 2011; letter from Iona J. Levine, Group General Counsel and Managing Director, LCH.Clearnet, dated April, 11, 2011; letter from William H. Navin, Executive Vice President and General Counsel, Options Clearing Corporation, dated April, 11, 2011; letter from John M. Damgard, President, Futures Industry Association, dated April 14, 2011. 42 See 76 FR 45730, Aug. 1, 2011. Proposed § 1.74(b) would set up a parallel requirement for clearing FCMs; proposed § 23.610(b) would set up a parallel requirement for SDs and MSPs that are clearing members. These rules, again, would apply a performance standard, not a prescribed method for achieving it. As originally proposed, §§ 39.12(b)(7)(iii) and 39.12(b)(7)(iv) distinguished between swaps subject to mandatory clearing and swaps not subject to mandatory clearing. 43 Upon review of the comments, the Commission concluded that this distinction was unnecessary with regard to processing time frames. If a DCO lists a product for clearing, it should be able to process it regardless of whether clearing is mandatory or voluntary. Accordingly, the Commission modified proposed § 39.12(b)(7)(iii) to cover all trades not executed on a DCM or SEF. It would require acceptance or rejection by the DCO as quickly after submission as would be technologically practicable if fully automated systems were used. 43 See 76 FR 13101, Mar. 10, 2011. Proposed § 1.74(b) would set up a parallel requirement for clearing FCMs; proposed § 23.610(b) would set up a parallel requirement for SDs and MSPs that are clearing members. These rules, again, would apply a performance standard, not a prescribed method for achieving it. The Commission also recognized that some trades on a DCM or SEF may be executed non-competitively. Examples include block trades and exchanges of futures for physicals (“EFPs”). A DCO may not be notified immediately upon execution of these trades. Accordingly, the proposal treated these trades in the same manner as trades that are not executed on a DCM or SEF. 2. Summary of Comments Eighteen 44 commenters expressed support for the timing standard as proposed by the Commission. 44 AIMA, AllianceBernstein, Arbor, Barnard, CIEBA, Citadel, DRW, Eris, FHLB, ICI, Javelin, Jeffries, MFA, SDMA, State Street, Spring Trading, Trading Firms, and Vizier. CME recommended that the standard be revised to “as quickly as would be technologically practicable if fully automated systems and filters were used or as quickly as possible if automated systems or filters are not used.” MGEX requested that the Commission codify the preamble text that the new timing standard would require action in a matter of “milliseconds or seconds or, at most, a few minutes, not hours or days.” MGEX also commented that proposed § 39.12(b)(7) should be a general acceptance and timing rule, not applicable for each specific contract listed to be cleared. MGEX argued that the rule only should apply to those swaps that a DCO has identified that it can and will clear, as opposed to variations of contracts listed for clearing or any contract not previously cleared by the DCO. Morgan Stanley believes that the timing standard should be intended to prohibit only those arrangements that prevent the use of automated systems that are available in the market to facilitate clearing. LCH suggested that the Commission modify proposed §§ 39.12(7)(ii) and (iii) by adding the language “and for which sufficient margins have been received by the derivatives clearing organization” prior to accepting and confirming a trade for clearing. NYPC requested clarification that in circumstances where a DCO automatically receives matched trade data from a DCM or SEF on a locked-in basis, no further systems development would be required in order to satisfy the above-referenced requirements of proposed regulations 1.74(a) and 39.12(b)(7)(i)(B). Better Markets stated that the timing standard must be: (1) Provided by the DCO or FCM; (2) capable of receiving and processing trade data from multiple sources in real time; (3) able to screen against standards such as price levels and block trade sizes as a threshold matter; (4) able to decrease or increase available credit real time; and (5) automatic push notification of acceptance or rejection by the DCO or FCM. Better Markets also commented that systems provided by a DCO or FCM must be open and require no special capabilities on the part of the trade execution venue, and that once data is input, the systems must function on a first-come-first-served basis using a reliable and common time stamping regime, regardless of affiliation or contractual relationship between the trading venue and DCO or FCM. Better Markets noted that confirmation of acceptance or rejection must not differ between trading venues based on affiliation or relationship. SG suggested that the Commission establish one or both of the following: (1) Credit limits of customers and FCMs are stored at the DCO and provided to SEFs in real time upon electronic demand; or (2) an industry-wide utility that stores customer and FCM limits and provides them to DCOs and SEFs in real time upon electronic demand. 3. Discussion The Commission continues to believe that acceptance or rejection for clearing in close to real time is crucial both for effective risk management and for the efficient operation of trading venues. 45 Rather than prescribe a specific length of time, the Commission is implementing a standard that action be taken “as quickly as would be technologically practicable if fully automated systems were used.” This standard would require action in a matter of milliseconds or seconds or, at most, a few minutes, not hours or days. The Commission recognizes that processing times may vary by product or market. 45 See letter from James Cawley, Swaps and Derivatives Market Association, dated April 19, 2011. This requirement is intended to be a performance standard, not the prescription of a particular method of trade processing. The Commission expects that fully automated systems will be in place at some DCOs, FCMs, SDs, and MSPs. Others might have systems with some manual steps. The use of manual steps would be permitted so long as the process could operate within the same time frame as the automated systems. As discussed by numerous commenters, the proposed standard approximates real-time acceptance while providing flexibility to accommodate different systems and procedures. Avoiding a large gap between trade execution and acceptance for clearing is crucial to risk management for DCOs, FCMs, and market participants. The Commission notes that the time frame for acceptance by clearing members and DCOs set forth in this section is stricter than the time frames for submission by SDs and MSPs set forth in Section III.A., above. Where execution is bilateral and clearing is voluntary, the delay between execution and submission to clearing is, of necessity, within the discretion of the parties to some degree. The Commission believes, however, that prudent risk management dictates that once a trade has been submitted to a clearing member or a DCO, the clearing member or DCO must accept or reject it as quickly as possible. Assuring prompt acceptance or rejection for clearing also undermines much of the stated rationale for the provisions in the trilateral agreements. In those unusual circumstances in which trades are rejected, the parties will know almost immediately and be able to take appropriate steps to mitigate risk. The Commission disagrees with CME's suggested standard of “as quickly as possible.” The Commission believes that this standard would introduce too much potential for delay. It could increase the very risks that this final rulemaking is designed to reduce or eliminate. In support of the final standard, the Commission notes that on December 13, 2011, $4.1 billion of trades were executed on a trading platform and cleared by a DCO within the time frame contemplated by the proposed rules. Specifically, 21 interest rate swaps were executed and cleared with an average time of 1.9 seconds and a quickest time of 1.3 seconds. 46 46 Katy Burne, UPDATE: Javelin, CME Claim Record Time To Clear Rate Swaps, Dow Jones Newswires, Nasdaq (Dec. 14, 2011; accessed Jan. 3, 2012) http://www.nasdaq.com/aspx/stock-market-news-story.aspx?storyid=201112141726dowjonesdjonline000739&title=updatejavelincme-claim-record-time-to-clear-rate-swaps. The Commission also disagrees with the MGEX suggestion that the timing standard should be codified as “milliseconds, seconds, or minutes,” because this would provide a window for trade acceptance that might be too wide as faster systems become available. The Commission believes that its proposed standard will allow for innovation to bring faster trade acceptance or rejection to the market most efficiently. The Commission also disagrees with LCH's proposed addition of the language “and for which sufficient margins have been received by the derivatives clearing organization” prior to accepting and confirming a trade for clearing. This standard may not be practicable for DCOs that are linked to high-volume automated trading systems. Currently, many DCOs in such circumstances calculate margin at the end of the day for collection the next day. Nothing in the final rules, however, precludes a DCO in its discretion from applying such a standard. The Commission confirms NYPC's belief that in circumstances where a DCO automatically receives matched trade data from a DCM or SEF on a locked-in basis, no further systems development would be required. The Commission believes that the comments of Better Markets and SG are consistent with the intent of the rules but provide a level of detail that the Commission believes is unnecessary at the present time, and in some respects goes beyond what the Commission proposed. For example, Better Markets recommended that DCOs and FCMs be able to increase available credit in real-time and to have automatic push notification of acceptance or rejection from clearing. The first could conflict with risk management procedures that some DCOs or FCMs might wish to use. The second is likely to be in place at many firms, but the Commission continues to believe that it is appropriate to have a rule that sets a performance standard rather than specifying a particular means of achieving it. Fully automated systems would of course comply with the performance standard. Accordingly, the Commission has decided not to change the rule in the manner suggested by Better Markets and SG. The Commission, however, will monitor the implementation of this rule and may propose amendments in the future. The Commission received numerous comments in the customer clearing documentation rulemaking emphasizing that it is imperative for effective risk management to have the shortest possible gap between execution and clearing. To permit additional time as suggested by some of the commenters on this rule would increase risk for DCOs, clearing members, and market participants. However, in light of commenters' concerns, the Commission is adopting §§ 1.75 and 23.611, which delegate to the Director of the Division of Clearing and Risk the authority to establish an alternative compliance schedule for requirements of §§ 1.74 and 23.610 for swaps that are found to be technologically or economically impracticable for an FCM, SD, or MSP affected by §§ 1.74 or 23.610. The purpose of §§ 1.75 and 23.611 is to facilitate the ability of the Commission to provide a technologically practicable compliance schedule for affected FCMs, SDs, or MSPs that seek to comply in good faith with the requirements of §§ 1.74 or 23.610. In order to obtain an exception under §§ 1.75 or 23.611, an affected FCM, SD, or MSP must submit a request to the Director of the Division of Clearing and Risk. FCMs, SDs, and MSPs submitting requests must specify the basis in fact supporting their claims that compliance with §§ 1.74 or 23.610 would be technologically or economically impracticable. Such a request may include a recitation of the specific costs and technical obstacles particular to the entity seeking an exception and the efforts the entity intends to make in order to ensure compliance according to an alternative compliance schedule. An exception granted under §§ 1.75 or 23.611 shall not cause a registrant to be out of compliance or deemed in violation of any registration requirements. Such requests for an alternative compliance schedule shall be acted upon by the Director of the Division of Clearing and Risk or designees thereto within 30 days from the time such a request is received. If not acted upon within the 30 day period, such request will be deemed approved. The Commission is adopting §§ 1.74, 23.610, and 39.12(b)(7) as proposed. D. Post-Trade Allocation of Bunched Orders 1. Introduction Bunched orders are orders entered by an account manager on behalf of multiple customers, which are executed as a block and later allocated among participating customer accounts for clearing. Believing that procedures used in the futures markets could be adapted for use in the swaps markets, the Commission proposed § 1.35(a-1)(5)(iv). 47 It provided that allocations must be made as soon as practicable after execution but in any event no later than the following times: (1) For cleared transactions, sufficiently before the end of the day to ensure that clearing records identify the customer accounts, and (2) for uncleared trades, no later than the end of the day the swap was executed. 47 See 76 FR 33066 (Jun. 7, 2011). 2. Summary of Comments In comments filed in connection with proposed §§ 1.74, 23.610, and 39.12(b)(7), BlackRock and State Street stated that the Commission should clarify the rules to specifically allow for post-trade allocation of block trades. BlackRock also commented that the final rule should provide that at the time of trade execution, confirmation of trade economics may be done at the block level, and a two-hour delay be allowed before the trade must be submitted to a DCO for clearing. In comments also filed in connection with proposed §§ 1.74, 23.610, and 39.12(b)(7), MFA and D. E. Shaw stated that it is not necessary to delay trades for post-execution allocation of trades to multiple funds. D. E. Shaw asserted that post-execution allocation is a “red herring” and should not prevent the Commission from mandating real-time clearing in the proposal. In a comment filed in connection with the proposed amendment to § 1.35, CME asserted that bunched orders in swaps should not be subject to the same type of regulatory regime as bunched orders in futures contracts because the “futures model” for treatment of bunched orders is not a suitable model for block trades of swaps. After a bunched trade in the futures market is accepted for clearing, an FCM generally holds the positions in a suspense account while awaiting allocation instructions from the asset manager. In contrast, the CME believes that an FCM holding bunched orders for swaps in a suspense account, while waiting for allocation instructions, may be exposed to substantially greater risk considering larger transaction sizes and the different risk profile of cleared swaps as compared to futures. CME stated that a time frame of two hours should allow sufficient time for asset managers to allocate block trades in swaps to their individual customers' accounts. In contrast, in comments also filed in connection with proposed § 1.35, SDMA stated that there should be no delay for bunched orders that are allocated after execution. According to SDMA, the process for swaps trade allocation should be similar to that of the futures markets. The Commission received no substantive comments regarding allocation of uncleared trades. 3. Discussion For many years in the futures markets, bunched orders have been executed as a block for immediate acceptance into clearing and allocated into individual accounts later in the day. Essentially, a “stand-by” clearing member guarantees the trades until they can be allocated. Consequently, there is no need for a two-hour delay. The proposed amendments would apply the same process to swaps. By allowing post-trade allocation of bunched orders, the rule is responsive to all the comments. By not permitting a two-hour delay the rule is also responsive to the comments of State Street, MFA, D. E. Shaw, and SDMA, but is contrary to the comments of CME and BlackRock. The Commission does not find persuasive the arguments that cleared swaps should be subject to a standard that differs in this regard from the standard for cleared futures. The Commission believes that a two-hour delay would create risk rather than mitigate it. First, the counterparty or counterparties to the trade would incur a delay in acceptance of their side into clearing because of the happenstance of being opposite a bunched order. This result is untenable in fast-moving markets. Second, the customers whose orders were being bunched would also suffer the same delay thereby incurring the same risks. The futures model has worked well for many years. In most instances, the orders are successfully allocated and the stand-by FCM ultimately is not required to clear any trades. In those cases where there is a misallocation, it is corrected the next day and the stand-by FCM is compensated by the account manager. All parties receive the benefits of immediate acceptance into clearing. CME and BlackRock have not demonstrated why these procedures would not work for swaps. The Commission believes that a similar analysis applies to uncleared swaps. Certainty of allocation by the end of the calendar day that a swap is executed will reduce risk for both counterparties. The Commission received no comments indicating otherwise. The Commission is adopting § 1.35(a-1)(5)(iv) as proposed. IV. Clearing Member Risk Management A. Introduction CEA Section 3(b) provides that one of the purposes of the Act is to ensure the financial integrity of all transactions subject to the Act and to avoid systemic risk. CEA section 8a(5) authorizes the Commission to promulgate such regulations that it believes are reasonably necessary to effectuate any of the provisions or to accomplish any of the purposes of the Act. Risk management systems are critical to the avoidance of systemic risk, as evidenced by the statutory provisions cited below. CEA section 4s(j)(2) requires each SD and MSP to have risk management systems adequate for managing its business. CEA section 4s(j)(4) requires each SD and MSP to have internal systems and procedures to perform any of the functions set forth in Section 4s. CEA section 4d requires FCMs to register with the Commission. It further requires FCMs to segregate customer funds. CEA section 4f requires FCMs to maintain certain levels of capital. CEA section 4g establishes reporting and recordkeeping requirements for FCMs. These provisions of law—and Commission regulations promulgated pursuant to these provisions—create a web of requirements designed to secure the financial integrity of the markets and the clearing system, to avoid systemic risk, and to protect customer funds. Effective risk management by SDs, MSPs, and FCMs is essential to achieving these goals. For example, a poorly managed position in the customer account may cause an FCM to become undersegregated. A poorly managed position in the proprietary account may cause an FCM to fall out of compliance with capital requirements. Even more significantly, a failure of risk management can cause an FCM to become insolvent and default to a DCO. This can disrupt the markets and the clearing system and harm customers. Such failures have been predominately attributable to failures in risk management. Proposed § 1.73 set forth risk management requirements that would apply to clearing members that are FCMs; proposed § 23.609 would apply to clearing members that are SDs or MSPs. These provisions would require these clearing members to have procedures to limit the financial risks they incur as a result of clearing trades and liquid resources to meet the obligations that arise. The proposal required each clearing member to: (1) Establish credit and market risk-based limits based on position size, order size, margin requirements, or similar factors; (2) Use automated means to screen orders for compliance with the risk-based limits; (3) Monitor for adherence to the risk-based limits intra-day and overnight; (4) Conduct stress tests of all positions in the proprietary account and all positions in any customer account that could pose material risk to the futures commission merchant at least once per week; (5) Evaluate its ability to meet initial margin requirements at least once per week; (6) Evaluate its ability to meet variation margin requirements in cash at least once per week; (7) Evaluate its ability to liquidate the positions it clears in an orderly manner, and estimate the cost of the liquidation at least once per month; and (8) Test all lines of credit at least once per quarter. Each of these items has been observed by Commission staff as an element of an existing sound risk management program at a DCO or an FCM. B. Components of the Rule The Commission received a total of 15 comment letters directed specifically at the proposed risk management rules. 48 A discussion of the comments received in response to each component of the rule follows. 48 Barnard; Futures Industry Association (“FIA”); SDMA; Better Markets; ICE; CME; Freddie Mac; ISDA; MGEX; MFA; Citadel; FHLB; Jeffries; Arbor; and Javelin. 1. Establish Credit and Market Limits and Automated Screening of Orders a. Summary of Comments FIA stated that it does not believe that “pre-execution” screening of orders is feasible in all market situations. For instance, the FIA noted four situations wherein “pre-execution screening” is not possible given current technology. Specifically, FIA does not believe that “pre-execution” screening is possible in the case of floor execution, trading advisors using “bunched” orders, give-up agreements, and traders using multiple trading platforms. The CME also commented that automated screening is not feasible in a floor trading environment. The CME suggested that the Commission adopt the following language: “automated or otherwise appropriate means to screen orders for compliance with risk-base-limits.” ISDA made comments consistent with CME and recommended a more flexible approach. ISDA noted that the regulation may not take into account the manner in which swaps are executed. b. Discussion As noted previously, the Dodd-Frank Act requires the increased use of central clearing. In particular, Section 2(h) establishes procedures for the mandatory clearing of certain swaps. Central clearing will provide more stability to the markets, and increase transparency for market participants. 49 As stated in the Committee report of the Senate Committee on Banking, Housing, and Urban Affairs: “Increasing the use of central clearinghouses * * * will provide safeguards for American taxpayers and the financial system as a whole.” 50 49 The Dodd-Frank Wall Street Reform and Consumer Protection Act: Title VII, Derivatives, Mark Jickling & Kathleen Ann Ruane, 5 (Aug. 30, 2010). 50 S. Rep. No. 111-176, at 32 (2010) (report of the Senate Committee on Banking, Housing, and Urban Affairs). The Commission has finalized extensive risk management standards at the DCO level. Given the increased importance of clearing and the expected entrance of new products and new participants into the clearing system, the Commission believes that enhancing the safeguards at the clearing member level is necessary as well. Bringing swaps into clearing will increase the magnitude of the risks faced by clearing members. In many cases, it will change the nature of those risks as well. Many types of swaps have their own unique set of risk characteristics. The Commission believes that the increased concentration of risk in the clearing system combined with the changing configuration of the risk warrant additional vigilance not only by DCOs but by clearing members as well. FCMs generally have extensive experience managing the risk of futures. They generally have less experience managing the risks of swaps. The Commission believes that it is a reasonable precaution to require that certain safeguards be in place. It would ensure that FCMs, who clear on behalf of customers, are subject to standards at least as stringent as those applicable to SDs and MSPs, who clear only for themselves. Failure to require SDs, MSPs, and FCMs that are clearing members to maintain such safeguards would frustrate the regulatory regime established in the CEA, as amended by the Dodd-Frank Act. Accordingly, the Commission believes that applying the risk-management requirements in the proposed rules to SDs, MSPs, and FCMs that are clearing members are reasonably necessary to effectuate the provisions, and to accomplish the purposes, of the CEA. The Commission does not intend to prescribe the particular means of fulfilling these obligations. As is the case with DCOs, clearing members will have flexibility in developing procedures that meet their needs. For example, items (1) and (2) could be addressed through simple numerical limits on order or position size, or through more complex margin-based limits. Further examples could include price limits that would reject orders that are too far away from the market, or limits on the number of orders that could be placed in a short time. These proposals are consistent with international standards. In August 2010, the International Organization of Securities Commissions issued a report entitled “Direct Electronic Access to Markets.” 51 The report set out a number of principles to guide markets, regulators, and intermediaries. Principle 6 states that: 51 The report can be found at www.iosco.org. A market should not permit DEA [direct electronic access] unless there are in place effective systems and controls reasonably designed to enable the management of risk with regard to fair and orderly trading including, in particular, automated pre-trade controls that enable intermediaries to implement appropriate trading limits. Principle 7 states that: Intermediaries (including, as appropriate, clearing firms) should use controls, including automated pre-trade controls, which can limit or prevent a DEA Customer from placing an order that exceeds a relevant intermediary's existing position or credit limits. Over the years, “rogue” traders have caused substantial financial damage to both small and large firms. The size or sophistication of the firm has not provided comprehensive protection. Traders have found ways to exploit gaps in internal controls. Automated screening procedures, such as Globex Credit Controls, are already in place in many markets and have proven to be effective tools for reducing risk. Therefore, the Commission believes that as proposed, the rule should require clearing members to use automated means for screening orders executed on automated trading systems. In response to the comments, the Commission has determined that, for non-automated markets such as open outcry exchanges or voice brokers, the rules would permit other forms of internal controls. For example, a clearing member cannot use an automated system to screen the orders of a floor trader. Proprietary or customer orders executed by open outcry or voice broker can be screened automatically if they are routed automatically. Many orders, however, continue to be placed by telephone. It is not practicable at this time to use automated means to screen such orders. A clearing member, however, can actively monitor a trader's activities and be in communication if the trader approaches a limit. To incorporate this approach, the Commission is revising §§ 1.73(a)(2)(ii), 1.73(a)(2)(iii), and 23.609(a)(2)(ii) using language suggested by ISDA. Specifically, as amended, these rules provide that clearing members must “establish and maintain systems of risk controls reasonably designed to ensure compliance.” The Commission believes that, as amended, the rules will be responsive to the comments of FIA, CME, and ISDA. They will continue to emphasize the key role that order screening can play in managing risk while making accommodation for certain circumstances where automated screening may not be possible or practicable at this time. In response to the comments, the Commission has also determined to make changes with regard to give-ups and bunched orders. Give-ups are trades where the execution function and the clearing function are performed by different firms. Revised paragraph (2)(iv) requires the clearing firm, which bears the financial risk of the trade, to set limits and communicate them to the executing firm, which would apply them. This arrangement is consistent with current practice. The uniform give-up contract contains a provision allowing a clearing firm to establish limits on the trades it will accept from the executing firm. To the extent the executing firm is an SD or MSP, and the clearing firm is an affiliated FCM, the firms will also have to comply with the conflict of interest rules for SD/MSPs and the conflict of interest rules for FCMs. 52 Those rules address appropriate partitions between the trading units of an SD/MSP and the clearing units of an affiliated FCM. For example, recently-promulgated § 23.605(d)(1)(iv) prohibits an SD/MSP from interfering with the setting of risk tolerance levels by an affiliated FCM. 52 See “Swap Dealer and Major Swap Participant Recordkeeping and Reporting, Duties, and Conflicts of Interest Policies and Procedures; Futures Commission Merchant and Introducing Broker Conflicts of Interest Policies and Procedures; Swap Dealer, Major Swap Participant, and Futures Commission Merchant Chief Compliance Officer,” available at http://www.cftc.gov/LawRegulation/DoddFrankAct/Rulemakings/DF_4_BusConductStandardsInternal/ssLINK/federalregister022312b. As noted above, for bunched orders, typically one firm acts as a “stand-by” clearing firm for purposes of getting the trade executed, but before the end of the day, the block is broken up and assigned among multiple clearing members, each of whom is acting on behalf of a particular customer. Revised paragraph (2)(v)(A) requires the stand-by clearing firm to establish limits for the block account and screen the order. Revised paragraph (2)(v)(B) requires each ultimate clearing firm to establish limits for each of its customers and enter an agreement with the account manager under which the account manager would screen orders for compliance. Revised paragraph (2)(v)(C) requires each ultimate clearing firm to establish controls to enforce its limits. The revisions adjust the rule to take into account the more complex procedures entailed in processing bunched orders. They narrow the scope of the screening required by various clearing participants from what was originally proposed. To the extent the account manager or one of the customers is an SD/MSP and one of the clearing firms is an affiliated FCM, the firms also will have to comply with the conflict of interest rules for SD/MSPs and the conflict of interest rules for FCMs. As noted above, those rules address appropriate partitions between the trading units of an SD/MSP and the clearing units of an affiliated FCM. 2. Stress Tests a. Summary of Comments Chris Barnard and Better Markets both recommended that the Commission require specific stress tests. Barnard recommended that the Commission adopt a minimum standard and Better Markets recommended an “extreme but plausible” standard for stress tests. In addition, Better Markets believes that stress test results should be reported to the Commission and the relevant DCO. FHLB recommended that stress test results be publicly disclosed. FHLB believes that public disclosure of stress test results would allow customers to mitigate risk. b. Discussion Stress tests are an essential risk management tool. The purpose in conducting stress tests is to determine the potential for significant losses in the event of extreme market events and the ability of traders and clearing members to absorb the losses. The Commission intentionally refrained from setting specific stress tests levels or a minimum threshold. The Commission believes that clearing members are in the best position to design stress tests based on their knowledge of markets and the types of customers they carry. In addition, the Commission believes that specifying certain stress tests might stifle innovation or cause firms to use minimum levels to meet regulatory compliance rather than implementing a vigorous risk management program. This approach is consistent with the approach recently adopted by the Commission for DCO stress tests. The Commission intends to monitor the implementation of this rule to determine whether clearing members are routinely conducting stress tests reasonably designed for the types of risk the clearing members and their customers face. The Commission believes that the concept of “extreme but plausible” conditions is commonly used and was implicit in the proposal. The Commission is adding the phrase to the rule text for clarity. The Commission believes that public disclosure of stress test results could be a disincentive to aggressive stress testing. Moreover, disclosure of results could have the effect of improper disclosure of confidential position information. The Commission is adopting the provisions as proposed, with amendments to §§ 1.73(a)(4) and 23.609(a)(4) to incorporate the phrase “extreme but plausible market conditions.” 3. Margin Evaluation a. Summary of Comments ISDA and FIA believe that the requirement to evaluate initial margin once per week is unclear. ISDA pointed out that a clearing member generally knows the amount of initial margin and collects it promptly. The Commission received no comments regarding §§ 1.73(a)(6) and 23.609(a)(6) regarding variation margin. b. Discussion The purpose of this provision is to require clearing firms to evaluate their ability to deal with certain contingencies on a routine basis. For example, a DCO might raise margin requirements, or option positions might be exercised, or a customer might default on a margin call. The clearing firm should make sure that it has resources available to meet its continuing obligations under such circumstances. The Commission is adopting §§ 1.73(a)(5), 1.73(a)(6), 23.609(a)(5), and 23.609(a)(6) as proposed. 4. Estimated Cost of Liquidation a. Summary of Comments FIA commented that “even in normal markets, estimating the costs of liquidating such positions in an orderly manner will be difficult at best. In times of market stress, such estimates will be impossible.” b. Discussion The Commission recognizes that estimating the cost of liquidation is at times difficult. But the inevitable imprecision of any estimate does not justify abandoning efforts to quantify potential losses. The purpose of the calculation is to alert the clearing firm to potential risks that might otherwise go undetected. This exercise could lead a clearing firm to decide: (1) To arrange for additional financing to cover a potential loss; or (2) to reduce the positions prior to a period of market stress. Commission staff perform stress tests of FCM positions and have alerted FCMs about potential losses. Based on Commission staff's experience in this area, the Commission believes that this is a topic that has not been fully addressed by some clearing members in recent years. In response to commenters, the Commission has decided to modify § 1.73(a)(7) to require estimation of liquidation costs once per quarter, rather than once per month. Additionally, the Commission is re-numbering § 23.609(a)(7) to § 23.609(a)(8), and renumbering § 23.609(a)(8) to § 23.609(a)(7), in order to follow the parallel structure in § 1.73. The Commission is adopting §§ 1.73(a)(8) and 23.609(a)(7) with the modifications discussed above. 5. Testing Lines of Credit a. Summary of Comments The CME commented that the requirement to test lines of credit should only be done on an annual basis rather than a quarterly basis. The CME believes that quarterly testing is not cost efficient. ISDA sought clarification on whether the test requires an actual drawing of funds or an assessment of conditions precedent to drawing. b. Discussion The Commission accepts that quarterly testing might not be cost efficient under all circumstances. Nonetheless, the Commission encourages clearing members to test lines of credit more frequently based on market and credit events. For instance, if a line of credit is in place with a bank that has recently suffered a credit rating downgrade, a test may be appropriate. The Commission believes that the actual drawing of funds is essential to testing a line of credit. Among other things, the test should ensure the ability of the bank or other institution to move the funds in a timely fashion and that the clearing member can assess its ability to approve the drawing and properly make accounting entries. This approach is consistent with the approach the Commission recently adopted for DCOs. The Commission is adopting §§ 1.73(a)(8) and 23.609(a)(7) as proposed, but with an amendment to provide for annual—rather than quarterly—testing of lines of credit. 6. Vagueness, Conflict, and/or Overlap Among Regulations a. Summary of Comments FIA expressed concern that paragraphs (a)(1) and (a)(4) through (6) of § 1.73 are too vague. FIA also expressed concern that the limits required by § 1.73 “may conflict with the provisions of proposed Rule 1.72(c), which provides that an FCM may set only `an overall limit for all positions held by the customer' at the FCM. Further, such limits may indirectly `limit' the number of counterparties with whom a customer may enter into a trade, in apparent violation of proposed Rule 1.72(b).” Regulation 1.72 was proposed in the customer clearing documentation rules 53 and is discussed in Part II, above. 53 See 76 FR 45730, Aug. 1, 2011. ISDA commented that the then-proposed § 23.600 imposes a risk management program for SDs and MSPs that must include “policies and procedures to monitor and manage, market, credit, liquidity, foreign currency, legal, operational, and settlement risk, as well as controls on business trading.” ISDA believes that the broad requirements of § 23.600 that pertain to liquidity and funding make proposed § 23.609(a)(5)-(8) redundant. The Commission recently promulgated § 23.600 as a final rule. 54 54 “Swap Dealer and Major Swap Participant Recordkeeping and Reporting, Duties, and Conflicts of Interest Policies and Procedures; Futures Commission Merchant and Introducing Broker Conflicts of Interest Policies and Procedures; Swap Dealer, Major Swap Participant, and Futures Commission Merchant Chief Compliance Officer,” available at http://www.cftc.gov/LawRegulation/DoddFrankAct/Rulemakings/DF_4_BusConductStandardsInternal/ssLINK/federalregister022312b. b. Discussion The Commission does not believe that § 1.73 is too vague. Paragraph (a)(1) addresses risk-based limits, paragraph (a)(4) addresses stress tests, and paragraphs (a)(5) and (6) address margin. While FIA asserts that these requirements are vague, it provides no additional detail on the issue. The regulation was intentionally drafted in a non-prescriptive manner. Risk management is a complex process that requires firms to make judgment calls on a daily basis. Moreover, each firm has a different customer base, different resources, and a different risk appetite. The Commission envisions that each clearing member will comply with § 1.73 using procedures and technology appropriate to its business model and customer base. As drafted, these provisions allow flexibility and innovation in complying with the regulation. The Commission does not believe that §§ 1.73 and 1.72 conflict. As proposed, § 1.72(b) would prohibit limits as to the number of counterparties, whereas § 1.73 would require limits set according to criteria such as position size or margin amount. FIA asserts that the regulations could conflict because § 1.73 may “indirectly” limit the number of counterparties. A position limit, of course, can have the effect of limiting the number of counterparties in the sense that if a trader can only execute 100 lots, the trader cannot have more than 100 counterparties. But such an indirect result is distinguishable from the conduct prohibited by § 1.72(b)—the deliberate setting of limits on the number of counterparties. The first is a legitimate risk management tool; the second is an unnecessary impediment to the free and open trading that would promote liquidity. Section 1.72(c) would prohibit only limits on the size of positions with specific counterparties. It does not prohibit limits tied to executing firms. Moreover, it specifically provides that overall position limits are permissible. Thus, there is no conflict between § 1.72(c) and § 1.73. The Commission also does not believe that the broad requirements of the recently-promulgated § 23.600 make proposed § 1.73 redundant. Section 23.600 sets out broad principles applicable to all SDs and MSPs. As proposed, § 23.609 would apply only to those SDs and MSPs that are clearing members of a DCO. The Commission believes that if an SD or MSP takes on the additional risks and responsibilities of clearing, it should undertake risk management procedures similar to those undertaken by clearing FCMs for their proprietary accounts. Clearing members pose risks to DCOs and users of DCOs that are not posed by SDs and MSPs that are not clearing members. V. Effective Dates A. Summary of Comments Arbor, Citadel, and Eris urged the Commission to prioritize the entire rule in the final rulemaking process. The Banks, DB, EEI, and ISDA commented that the Commission should not rush this proposal. Wells Fargo commented that the Commission should delay compliance until most industry systems meet the real-time acceptance standard. LCH requested that the Commission delay compliance for 9 months, if the rules are adopted as proposed. AllianceBernstein commented that the Commission's recently proposed phased implementation provides ample time for the market to make final preparations, and no “interim” execution documentation arrangements are necessary. Morgan Stanley stated that real-time clearing and risk limit compliance verification cannot be developed quickly enough to abandon trilateral agreements. B. Discussion This rulemaking includes rules applicable to FCMs, SDs, MSPs, DCMs, SEFs, and DCOs. In addressing implementation, it is important to distinguish between FCMs, DCMs, and DCOs, on the one hand, and SDs, MSPs, and SEFs, on the other. FCMs, DCMs, and DCOs are currently involved in clearing swaps. Entity definitions are not necessary for them. Product definitions are not necessary for the implementation of the rules applicable to them. The products currently being cleared as swaps by DCOs are commonly characterized as such by market participants. To delay implementation of these rules pending implementation of the further product definition rules would be to deny market participants pricing, operational, and risk-management benefits unnecessarily. No firms are currently registered as SDs, MSPs, or SEFs. Therefore, the rules applicable to these entities will have no practical effect until other rulemakings are completed, such as the further entity definition rulemaking. Nevertheless, many entities currently expect to operate as SDs, MSPs, or SEFs, regardless of the precise contours of the entity definitions. It would be more efficient for such entities, particularly those that are currently active in the markets, to develop their systems and procedures in anticipation of being subject to these rules as soon as they become applicable. Indeed, failing to take such measures would disadvantage those that did not prepare for the imminent regulatory framework. This approach would also avoid temporary gaps or discrepancies in the system of rules addressing client clearing documentation, trade processing, and clearing member risk management resulting from differing implementation schedules for various entities. As discussed above, the Commission believes that implementation of these rules is essential to effective clearing of swaps. The Commission has determined that for FCMs, DCMs, and DCOs, these rules shall become effective October 1, 2012. For SDs and MSPs, these rules shall become effective on the later of October 1, 2012, or the date that the registration rules become effective. 55 For SEFs, these rules shall become effective on the later of October 1, 2012, or the date that the rules implementing the core principles for SEFs become effective. 56 The Commission believes that this approach strikes an appropriate balance between those commenters who urged implementation as quickly as possible and those who urged delayed implementation. 55 Registration of Swap Dealers and Major Swap Participants, 77 FR 2613 (Jan. 19, 2012). 56 Core Principles and Other Requirements for Swap Execution Facilities, 76 FR 1214 (Jan. 7, 2011). VI. Consideration of Costs and Benefits Introduction CEA Section 15(a) requires the CFTC to consider the costs and benefits of its action before promulgating a regulation under the CEA, specifying that the costs and benefits shall be evaluated in light of five broad areas of market and public concern: (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. 57 To the extent that these final regulations repeat the statutory requirements of the Dodd-Frank Act, they will not create costs and benefits beyond those resulting from Congress's statutory mandates in the Dodd-Frank Act. However, to the extent that the regulations reflect the Commission's own determinations regarding implementation of the Dodd-Frank Act's provisions, such Commission determinations may result in other costs and benefits. It is these other costs and benefits resulting from the Commission's determinations pursuant to and in accordance with the Dodd-Frank Act that the Commission considers with respect to the Section 15(a) factors. 57 7 U.S.C. 19(a). The regulations contained in this Adopting Release were proposed in four separate notices of proposed rulemaking (“NPRMs”). Sections 1.72, 1.74, 23.608, 23.610, 39.12(a)(1)(iv), and 39.12(b)(7) were proposed in Customer Clearing Documentation and Timing of Acceptance for Clearing, 58 sections 23.506, 37.702(b), and 38.601(b) were proposed in Requirements for Processing, Clearing, and Transfer of Customer Positions, 59 sections 1.73 and 23.609 were proposed in Clearing Futures Commission Merchant Risk Management, 60 and 1.35(a-1)(5)(iv) was proposed in Adaptation of Regulations to Incorporate Swaps. 61 The Commission is finalizing the rules contained in this Adopting Release together because they address three overarching, closely-connected aims: (1) Non-discriminatory access to counterparties and clearing; (2) straight-through processing; and (3) effective risk management among clearing members. Each of these provides substantial benefits for the markets and market participants. 58 See 76 FR 45730 (Aug. 1, 2011). 59 See 76 FR 13101 (Mar. 10, 2011). 60 See 76 FR 45724 (Aug. 1 2011). 61 See 76 FR 33066 (Jun. 6, 2011). The regulations related to non-discriminatory access concern customer clearing documentation. Specifically, they prohibit FCMs, SDs, MSPs, and DCOs from entering into agreements, including those known in the industry as “trilateral agreements,” with terms restricting an FCM's customer's ability to access all willing counterparties in the market and obtain a swap on reasonably competitive terms. 62 Open access, unrestrained by contractual terms of this type, is critical to the efficiency and financial integrity of the swap markets. 62 See §§ 1.72, 23.608, and 39.12(a). This first set of rules is designed to avoid the undesirable consequences likely to result from trilateral agreements, which include limits on the range of eligible counterparties with whom market participants can transact, reduced competition for customers' business, fragmentation of customers' trading limits at the FCM, and distorted price discovery. 63 Reduced competition in this context may lead to wider spreads, higher transaction fees ( i.e., increased costs for customers), and reduced market efficiency. Moreover, limiting a market participant's access to less than all willing counterparties, including those offering trades on terms approximating the best available in the market could undermine price discovery, and market efficiency. The first cluster of rules seeks to mitigate these problems through provisions fostering open access to all available counterparties and democratized access to clearing services. To that end, it prevents FCMs, SDs, MSPs, and DCOs from entering into any agreement that would: (a) Disclose the identity of a customer's original executing counterparty to the FCM, SD, or MSP; (b) limit the number of counterparties available to the customer; (c) set any limits on the size of position a customer may take (other than the general limit established by their FCM); (d) impede a customer's access to trades that approximate the best terms available; or (e) prevent compliance with timeframes for processing swaps that are required by other parts of these rules. 63 Trilateral agreements were introduced in June 2011. On August 1, 2011 the Commission issued the NPRM of this rule prohibiting certain terms that are central to the trilateral agreements and as a consequence, adoption of the agreements thus far has been extremely limited. A second group of regulations mandates straight-through processing—rapid processing of swap transactions, including rapid submission to the DCO for acceptance or rejection from clearing—for swaps required to be cleared or that the counterparties elect to clear. In this regard, the regulations impose requirements on FCMs, SDs, MSPs, DCMs, SEFs, and DCOs that, taken together, are designed to ensure that counterparties know whether a swap will be accepted for clearing at, or soon after, the time of execution which is a critical condition for eliminating counterparty risk that undermines democratized access to the swap markets. 64 When two parties enter into a bilateral swap transaction with the intention of clearing a swap, each party bears counterparty risk with respect to the other until the swap enters clearing. Once the swap enters clearing, the clearinghouse becomes the counterparty to each side of the trade, which minimizes and standardizes counterparty risk.To the extent that there is a period of time between execution and clearing, counterparty risk may develop as post-execution market movements impact the swap's value and each party could face significant costs if the swap is eventually rejected from clearing and subsequently broken. Both counterparties run the risk that they may have to replace the swap under different, less desirable terms if the market has moved against them during the intervening time. In addition, SDs, whether providing liquidity to a non-SD or SD counterparty, may have to unwind or offset any positions they have taken on to hedge the original swap; this can also be costly, again, particularly if the market has moved against them since the execution of the original swap. Bilateral agreements typically address such “breakage” costs, but the effectiveness of those provisions could be compromised if either counterparty is unwilling or unable to make the other whole for losses. Such costs are potentially significant, particularly when the markets are volatile and the latency period is long, giving SDs an incentive to discriminate among counterparties on the basis of their credit quality. To mitigate those costs and promote more democratized access to the markets, it is critical that executed swap transactions be accepted or rejected from clearing quickly. 64 See §§ 1.35, 1.74, 23.506, 23.610, 37.702, 38.601, and 39.12(b) of the Commission's regulations. These rules contain several requirements that are designed to ensure that swaps are processed and accepted or rejected promptly from clearing, including requirements that FCMs, SDs, MSPs, SEFs, DCMs, and DCOs coordinate with one another to ensure they have the capacity to accept or reject trades “as quickly as technologically practicable if fully automated systems were used.” For trades executed on a DCM or SEF, the Commission anticipates that processing and submitting a trade for clearing would be near real-time, thus substantially eliminating the potential for significant counterparty risk accumulation during the latency period. For trades that are not executed on an exchange, but are required to be cleared, the rules require submission for clearing “as soon as is technologically practicable after execution” but no later than by the close of business on the day of execution. Similarly, swaps not executed on an exchange and for which clearing is elected by the counterparties (but not required by law) must also be submitted for clearing as soon as technologically practicable, but not later than the day following the latter of execution or the decision to clear. The Commission expects that these rules requiring coordination to ensure rapid processing and acceptance or rejection of swaps for clearing will be beneficial in several respects. First, they will promote rapid adoption in the market of currently existing technologies that will make possible near real-time processing of exchange traded swaps. For trades that are pre-screened, or executed on an exchange, this will virtually eliminate counterparty credit risks associated with clearing rejection. The rules will also significantly reduce the amount of time needed to process swaps that are not traded on an exchange; although costs associated with latency-period counterparty credit risk cannot be completely eliminated in this context, the rules will substantially reduce the need to discriminate among potential counterparties in off-exchange trades, as well as the potential costs associated with rejected trades. By reducing or eliminating the counterparty risk that could otherwise develop during the latency period, these rules promote a market in which all eligible market participants have access to counterparties willing to trade on terms that approximate the best available terms in the market. This rule may improve price discovery and promote market integrity. The third set of rules in this Adopting Release requires that FCMs, SDs, and MSPs who are clearing members of a DCO implement sound risk management practices that help ensure their financial strength. A DCO's financial strength depends on the continued financial strength of its clearing members. The Commission believes that requiring clearing members to engage in certain risk management procedures will provide additional assurance of their ability to meet their financial obligations to their respective DCOs, particularly in times of market stress. The third group of rules in this Adopting Release therefore requires clearing members to establish overall risk-based position limits for their proprietary trading accounts and each of their customer accounts, and to screen trades for compliance with those limits. The rules also require clearing members to monitor for adherence to such risk-based position limits, both intra-day and overnight; to conduct rigorous stress tests on significant accounts at least once per week; to evaluate their ability to meet initial and variation margin requirements at least once per week; to evaluate the probable cost of liquidating various accounts at least once per month; to test all lines of credit at least once per year; and to establish procedures and records that ensure and verify their compliance with these requirements. Many of these requirements reflect common practices for clearing members. These rules promote consistent use of risk management best practices among clearing members, while also allowing flexibility to encourage innovation and adaptation to the specific operating requirements of diverse clearing members. The Commission anticipates that the requirements themselves will help to ensure that clearing members and their respective DCOs remain financially sound during periods of market stress. Moreover, the Commission believes that the flexibility these requirements allow will minimize attendant costs and enable members to adapt their risk management practices to new market demands and develop more effective strategies for monitoring and managing risk. In the sections that follow, the Commission evaluates the costs and benefits relevant to each of the three groups of rules pursuant to Section 15(a) of the CEA. Each section specifically addresses the individual Section 15(a) factors with respect to the rule group and responds to comments pertaining to that group. In its analysis, the Commission has endeavored, where possible, to quantify costs and benefits. However, the costs and benefits are either indirect, highly variable, or both and therefore are not subject to reliable quantification at this time. Nevertheless, the Commission has considered all the comments received, a broad range of costs and benefits pertaining to democratized swap market access, improvements and challenges in risk management, development and implementation of necessary technology, market liquidity, and several others as detailed below. Cost Benefit Consideration by Rule Group 1. Customer Clearing Documentation Sections 1.72, 23.608, and 39.12(a)(1)(vi) restrict FCMs, SDs and MSPs, and DCOs, respectively, from entering into any arrangements that would (a) disclose the identity of a customer's original executing counterparty to any FCM, SD, or MSP; (b) limit the number of counterparties with whom a customer may trade; (c) restrict the size of a position that the customer may take with any individual counterparty apart from the overall limit for all positions held by the customer at the FCM; (d) limit a customer's access to trades on terms that have a reasonable relationship to the best terms available; or (e) prevents compliance with other regulations requiring rapid processing and acceptance or rejection from clearing. The Commission believes that these rules proscribe certain terms in trilateral agreements that were proposed by some SDs and FCMs. However, the Commission notes that trilateral agreements were not used in swap markets prior to June 2011. SDs historically have provided liquidity and managed risk without the use of trilateral agreements, and the Commission understands that such agreements have not yet been widely adopted. Therefore, it is unlikely that these rules, by preventing certain terms in trilateral agreements, will cause widespread changes in current market practices for managing counterparty risk or for negotiating bilateral agreements. 65 Moreover, the rules adopted in this Adopting Release will enhance risk management in other ways, obviating any perceived need for terms in trilateral agreements that can harm market competitiveness, efficiency, and price discovery. In that context, the Commission concludes that these changes are justified. 65 To the extent that changes will occur, the costs attendant to them are indirect and cannot be estimated without data that is not available at this time. a. Protection of Market Participants 66 and the Public 66 The term “market participants” as it is used throughout the cost benefit considerations section includes SDs, MSPs, FCMs, and the customers of FCMs ( i.e., SD, MSP, and non-SD/MSP swap counterparties). The Commission is concerned that by giving FCMs the ability to establish and communicate sub-limits on the positions a specific SD may clear with a specific customer, the trilateral agreements may allow FCMs to influence the amount of business that a customer conducts with specific counterparties, or to constrain the number or choice of counterparties with whom a customer is able to trade. This concern is amplified because a number of FCMs have affiliated SDs who (along with other SDs with whom the FCM-affiliated SD competes for swap transaction business) are potential counterparties to the FCM's customers. To the extent that FCMs could use terms in trilateral agreements to influence a customer's choice from among potential SD counterparties, the agreements could provide a means for FCMs to direct business toward an associated SD (or to raise the cost of doing business with an unassociated SD) to the diminution of competition to provide swap liquidity generally; in this way, the agreement may work to the disadvantage of those market participants that might benefit from better competition. Moreover, by limiting a customer's range of potential counterparties and the size of positions that may be entered with specific counterparties, the FCM establishes a condition that in some circumstances could preclude matching of the customer's order with the counterparty that is willing to provide the best available terms in the market at that time. This sub-optimal outcome increases costs for the customer, and any systematic increases in costs to the customer will indirectly impact prices that the public ultimately pays for related goods and services. In addition, such limitations also impose costs on potential counterparties who are prevented from trading with customers by restrictions in the trilateral agreements. If those counterparties are dealers, they lose the opportunity to win that customer's business. If those counterparties are non-dealers, they lose the liquidity that would have otherwise been available to them as a consequence of the customer's need to execute a swap. Last, an FCM could, intentionally or unintentionally, signal to the market information about the customer through designation notices. For example, clearing members may be more likely to reduce a customer's limits during a time of market stress. Communicating reductions on various sub-limits to potential SD counterparties may signal (perhaps wrongly) that the credit quality of the customer is deteriorating. This signal could make it more difficult for the customer to transact at a time when their ability to transact is particularly critical. These potential costs to customers and the public will be forestalled or altogether eliminated by these rules. These benefits, however, are unquantifiable for several reasons. First, many of the potential costs and benefits associated with trilateral agreements are indirect and dispersed to a degree that they would be difficult to estimate even if there were ample data available. Second, ample data is not available. The Commission does not have any data that characterizes pricing, liquidity, or other important variables in the presence and absence of trilateral agreements. Last, trilateral agreements were introduced in mid-June 2011, and the Commission believes that adoption of trilateral agreements thus far has been extremely limited. Further, the Commission believes that the NPRM of this rule, which was released a few weeks after trilateral agreements were introduced, may be a primary factor deterring rapid adoption of these agreements. 67 To the extent that this is correct, the current rate of adoption and impact on the market is unlikely to be a reflection of what the impact of trilateral agreements would be in the absence of this rule. In other words, even if the Commission had the data necessary to estimate the current impact of trilateral agreements (which it does not), those estimates would not accurately reflect the potential impact of these agreements. However, by prohibiting contractual terms that would limit the number of potential counterparties, set sub-limits on a customer's positions, or restrict a customer's access to terms reasonably related to the best terms available in the market, these rules provide significant protection to market participants. 67 See 76 FR 45730, Aug. 1, 2011. With respect to the customer-identity nondisclosure requirement, several commenters stated that protecting anonymity is critical as a condition for open, efficient, and competitive swap markets. 68 Maintaining the anonymity of a customer's counterparty prevents the clearing member from sharing with any affiliated SDs competitively sensitive information about its customers' counterparties—who may be competitors and/or subsequent swap counterparties to the affiliated SD—that affiliated SDs can use for their own gain (and that of the SD/FCM affiliate group). This rule, together with the rule that prevents FCMs from establishing sub-limits, prohibits arrangements that allow FCMs to share competitively sensitive information that could undermine competition to provide swap liquidity—including information that provides transparency into customer swap positions and exposures. In so doing, the rules better protect those swap counterparty market participants that benefit from greater competition ( e.g., as may be reflected in improved bid/ask spreads) to provide the desired swaps. The value of such protection would vary depending on the specific type and timing of information that is communicated as well as the role and incentives of the entity receiving that information relative to the entity about which the information is disclosed. These factors are highly variable and impracticable to quantify, and, as a consequence, the Commission does not have adequate information to reasonably estimate the additional costs that might be caused by such disclosures, or the value of preventing such costs. 68 See MFA, Arbor, SIFMA, D. E. Shaw, AIMA, and Vizer. In addition, SDs, FCMs, and FCM customers may soon expend resources negotiating trilateral agreements. By prohibiting certain provisions from inclusion in trilateral agreements, these rules reduce the likelihood that SDs, FCMs, and customers will enter into them. To the extent that this occurs, SDs, FCMs, and customers will save the substantial costs that otherwise would be required to negotiate such agreements. 69 Vanguard, for example, estimates that, if it was forced by SDs to implement trilateral agreements, it may have to negotiate and enter into approximately 4,800 new trilateral agreements per year. 70 In addition, those agreements would create significant administrative and ongoing legal costs associated with review, periodic update, and, for customers, compliance to monitor their own activities. Some commenters suggested that the resources necessary to create and administer trilateral agreements would divert resources from implementing market infrastructure that is necessary to facilitate straight through processing. 71 69 See AllianceBernstein, Citadel, D. E. Shaw, MFA, SIFMA, and Vanguard. 70 See Vanguard. 71 See e.g., Citadel, Alliance Bernstein, and MFA. The Commission recognizes that prohibiting certain arrangements that are currently in trilateral agreements may increase counterparty risks (costs) that SDs face due to the possibility that swaps they enter could be rejected from clearing. Trilateral agreements are intended to increase the degree of the SD's certainty that trades with certain customers and within certain limits will be accepted for clearing. The prohibitions contained in the first group of rules are likely to prevent SDs from using trilateral agreements in this way, creating certain potential costs for the SDs who have established trilateral agreements with some of their customers and the customers' FCMs. 72 However, as noted above, there are also significant costs associated with trilateral agreements. Moreover, in the Commission's judgment, provisions contained within the second cluster of rules ( i.e., rules pertaining to straight-through processing) will mitigate the potential costs to SDs and other market participants substantially. More specifically, as discussed below, the second group of rules mitigates costs associated with pre-clearing-approval counterparty risk through straight-through-processing requirements; the Commission anticipates these rules will drive rapid implementation of existing market technology to substantially narrow the window of counterparty risk for SDs between execution and clearing acceptance/rejection. 72 These costs, if compared against the baseline of current market practice, depend on the extent to which trilateral agreements containing terms proscribed in these rules are currently being used. Based on anecdotal feedback from market participants, the Commission believes that trilateral agreements have not yet been widely adopted. Moreover, as suggested above, the Commission believes that requiring more rapid swap processing and clearing determinations will offset these costs, diminishing them significantly over time. However, the Commission does not have sufficient data regarding the number of trilateral agreements currently in place, or the number and terms of swap transactions that they impact, to estimate these costs. Moreover, commenters have suggested that in certain circumstances, the sub-limits associa [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2012-7477. Public record. Not legal advice.