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[Federal Register Volume 80, Number 56 (Tuesday, March 24, 2015)]
[Rules and Regulations]
[Pages 15507-15510]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2015-06548]

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COMMODITY FUTURES TRADING COMMISSION

17 CFR Part 1

RIN 3038-AE22

Residual Interest Deadline for Futures Commission Merchants

AGENCY: Commodity Futures Trading Commission.

ACTION: Final rule.

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SUMMARY: The Commodity Futures Trading Commission (``Commission'' or 
``CFTC'') is amending its regulations to remove the December 31, 2018 
automatic termination date for the phased-in compliance schedule for 
futures commission merchants (``FCMs'') and provides assurance that the 
residual interest deadline, as defined in the regulations (``Residual 
Interest Deadline''), will only be revised through a separate 
Commission rulemaking.

DATES: The final rule is effective May 26, 2015.

FOR FURTHER INFORMATION CONTACT: 
    Division of Swap Dealer and Intermediary Oversight: Thomas Smith, 
Acting Director, 202-418-5495, tsmith@cftc.gov; Jennifer Bauer, Special 
Counsel, 202-418-5472, jbauer@cftc.gov; Joshua Beale, Attorney-Advisor, 
202-418-5446, jbeale@cftc.gov, Three Lafayette Centre, 1155 21st Street 
NW., Washington, DC 20581.
    Division of Clearing and Risk: Kirsten V.K. Robbins, Associate 
Chief Counsel, 202-418-5313, krobbins@cftc.gov, Three Lafayette Centre, 
1155 21st Street NW., Washington, DC 20581.
    Office of the Chief Economist: Stephen Kane, Research Economist, 
202-418-5911, skane@cftc.gov, Three Lafayette Centre, 1155 21st Street 
NW., Washington, DC 20581.

SUPPLEMENTARY INFORMATION:

I. Background

    On October 30, 2013, the Commission amended Regulation 1.22 to 
enhance the safety of funds deposited by customers with FCMs as margin 
for futures transactions.\1\ The amendments require an FCM to maintain 
its own capital (hereinafter referred to as the FCM's ``Residual 
Interest'') in customer segregated accounts in an amount equal to or 
greater than its customers' aggregate undermargined amounts.\2\ The 
Commission established a phased-in compliance schedule for Regulation 
1.22 with an initial Residual Interest Deadline of 6:00 p.m. Eastern 
Time on the date of the settlement referenced in Regulation 
1.22(c)(2)(i) or (c)(4) (the ``Settlement Date''), beginning November 
14, 2014.\3\ Amended Regulation 1.22 also directs staff to host a 
public roundtable and publish a report for public comment by May 16, 
2016 addressing, to the extent information is practically available, 
the practicability (for both FCMs and customers) of moving the Residual 
Interest Deadline from 6:00 p.m. Eastern Time on the Settlement Date, 
to the time of settlement or to some other time of day.\4\ Furthermore, 
amended Regulation 1.22 provides that, absent Commission action, the 
phased-in compliance period for the Residual Interest Deadline 
automatically terminates on December 31, 2018.\5\ In the case of such 
automatic termination, the Residual Interest Deadline would change to 
the time of settlement on the Settlement Date.
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    \1\ Enhancing Protections Afforded Customers and Customer Funds 
Held by Futures Commission Merchants and Derivatives Clearing 
Organizations, Final Rule, 78 FR 68506 (Nov. 14, 2013) (amending 17 
CFR parts 1, 3, 22, 30 and 140).
    \2\ See 17 CFR 1.22(c)(3)(i). As defined in Regulation 
1.22(c)(1), a customer's account is ``undermargined,'' when the 
value of the customer funds for a customer's account is less than 
the total amount of collateral required by derivatives clearing 
organizations for that account's contracts. See 78 FR 68513, n.30.
    \3\ See 17 CFR 1.22(c)(5)(ii); See 78 FR at 68578.
    \4\ See 17 CFR 1.22(c)(5)(iii)(A).
    \5\ See 17 CFR 1.22(c)(5)(iii)(C).
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II. The Proposal

    On November 3, 2014, the Commission proposed to revise Regulation 
1.22 to remove the December 31, 2018 automatic termination of the 
phase-in compliance period.\6\ In the NPRM, the Commission stated the 
intention to retain the Residual Interest

[[Page 15508]]

Deadline \7\ at 6 p.m. Eastern Time, unless the Commission takes 
further action via rulemaking.
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    \6\ Residual Interest Deadline for Futures Commission Merchants, 
Notice of Proposed Rulemaking, 79 FR 68148 (Nov. 14, 2014) (amending 
17 CFR part 1).
    \7\ See 17 CFR 1.22(c)(3)(i). The term ``Residual Interest 
Deadline'' is defined in Regulation 1.22(c)(5). If an FCM is 
required to increase its Residual Interest as a result of customer 
undermargined accounts, the FCM must deposit additional funds into 
the customer segregated accounts by the specified Residual Interest 
Deadline.
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    In the NPRM, the Commission stated that the removal of the 
automatic termination of the phase-in compliance period would provide 
the Commission with a greater degree of flexibility to assess all 
relevant data, including the costs and benefits of revising the 
Residual Interest Deadline. The Commission also retained in Regulation 
1.22 the requirement for Commission staff to publish for public comment 
a report addressing the practicability and costs and benefits of 
revising the Residual Interest Deadline, and the additional requirement 
for Commission staff to conduct a public roundtable on the issue.
    The Commission invited comments on all aspects of the amendments, 
particularly those regarding the practicability and costs and benefits 
of revising the Residual Interest Deadline.

III. Comments and Response

    The Commission received ten comments on the NPRM. The comments were 
submitted by the Futures Industry Association (``FIA''), CME Group 
(``CME''), National Futures Association (``NFA''), National Introducing 
Brokers Association (``NIBA''), Managed Funds Association (``MFA''), 
Coalition of National Producers and Agribusiness (``Agribusiness 
Coalition''),\8\ National Grain and Feed Association (``NGFA''), 
National Council of Farmer Cooperatives (``NCFC''), the Honorable Heidi 
Heitkamp, United States Senate, and Chris Barnard.\9\ All ten comments 
supported the proposed amendments.
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    \8\ The Commission received two comment letters filed by the 
Coalition of National Producers and Agribusiness. The second comment 
letter was identical to the first with the exception of an amendment 
adding two additional signatories.
    \9\ The comments are available on the Commission's Web site, 
http://comments.cftc.gov/PublicComments/CommentList.aspx?id=1537.
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    The FIA and its member firms supported the amendments, stating 
their willingness to participate in the study and citing concerns that 
a residual interest deadline earlier than 6:00 p.m. Eastern Time on the 
Settlement Date might impose significant financial and operational 
burdens on both customers and FCMs. The NFA encouraged the Commission 
to consider industry comment on the timing and parameters of the study 
to ensure the Commission has the most complete information available. 
The NIBA, NCFC, NGFA, Agribusiness Coalition, and MFA added that an 
earlier Residual Interest Deadline could force the pre-funding of 
margin by FCMs, in turn causing increased operational costs on FCMs and 
their customers, which could result in the possible exit of certain 
customers from the marketplace. Senator Heitkamp also supported the 
proposed amendments and stated that the rule would provide end users 
with the certainty they need to run their businesses.
    All commenters supported the position that any future revisions 
should be done through separate rulemaking. The FIA and CME further 
stated that the opportunity to provide input on the setting of the 
Residual Interest Deadline was something consistent with the goals of, 
if not required by, the Administrative Procedure Act. Chris Barnard 
asked for certainty on the proposed retention of the existing deadline 
absent further Commission rulemaking, stating that such a requirement 
is open-ended.
    The Commission has considered the comments and is adopting the 
amendments as proposed. Amending Regulation 1.22 to require the 
Commission to conduct a separate rulemaking prior to revising the 
Residual Interest Deadline will provide market participants with an 
opportunity to review and comment on the Commission's staff's 
roundtable and public report. The amendments also provide market 
participants with an opportunity to review and to provide comments, via 
a rulemaking process, on any Commission proposed revisions to the 
Residual Interest Deadline.

IV. Cost-Benefit Considerations

    Section 15(a) of the Commodity Exchange Act (``CEA'') requires the 
Commission to consider the costs and benefits of its actions before 
promulgating a regulation under the CEA or issuing certain orders.\10\ 
Section 15(a) further specifies 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. The Commission considers the costs and 
benefits resulting from its discretionary determinations with respect 
to the section 15(a) factors.
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    \10\ 7 U.S.C. 19(a).
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    As noted in the NPRM, the status quo baseline with which the costs 
and benefits are compared is the Residual Interest Deadline of 6:00 
p.m. Eastern Time on the Settlement Date, which would apply until the 
Commission takes further action or, in the absence of further action, 
until December 31, 2018. The status quo baseline includes the automatic 
termination of the phase-in compliance period at December 31, 2018, 
which, absent Commission action, would move the Residual Interest 
Deadline to the time of settlement referenced in Regulation 
1.22(c)(2)(i), or as appropriate, 1.22(c)(4).
    As also noted in the NPRM, the status quo baseline is similar to 
this final rulemaking and, as such, the Commission believes that there 
is not likely to be any material differences between this final 
rulemaking and the status quo baseline in terms of the first four 
section 15(a) factors. The Commission notes that the amendments will 
alter the procedure followed with regard to the removal of the 
automatic termination of the phase-in period, which could alter the 
cost and benefit with respect to the fifth section 15(a) factor. The 
Commission specifically invited comment on the cost and benefit 
implications related to the fifth section 15(a) factor (``other public 
interest considerations''). However, the Commission received no 
comments that contained any quantitative data regarding the monetary 
value of any public interest considerations. As such, the Commission 
has considered the fifth section 15(a) factor qualitatively.
    All commenters supported the termination of the automatic phase-in 
compliance period. The CME stated that removing the automatic moving of 
the residual interest deadline will allow impacted market participants, 
including customers and FCMs, to provide comments on any proposed rule 
change that results from the study. In addition, the FIA stated the 
adoption of the amendment will also afford the Commission the 
opportunity to carefully consider the results of the staff study 
without being bound by an unnecessary deadline.
    The Commission agrees with commenters that a separate rulemaking 
prior to revising the Residual Interest Deadline will afford the public 
an opportunity to participate in any future decision-making concerning 
any possible movement of the Residual Interest Deadline. The 
termination of the automatic phase-in compliance period will grant the 
Commission more opportunity to consider the study and

[[Page 15509]]

the public roundtable, as well as an opportunity to receive and 
evaluate additional public comment on any proposed rule change.

V. Related Matters

A. Regulatory Flexibility Act

    The Regulatory Flexibility Act (``RFA'') \11\ requires Federal 
agencies, in promulgating regulations, to consider the impact of those 
regulations on small entities. The Commission has previously 
established certain definitions of ``small entities'' to be used by the 
Commission in evaluating the impact of its rules on small entities in 
accordance with the RFA.\12\ The final amendments would affect FCMs. 
The Commission previously has determined that FCMs are not small 
entities for purposes of the RFA, and, thus, the requirements of the 
RFA do not apply to FCMs.\13\ The Commission's determination was based, 
in part, upon the obligation of FCMs to meet the minimum financial 
requirements established by the Commission to enhance the protection of 
customers' segregated funds and protect the financial condition of FCMs 
generally.\14\ Accordingly, the Chairman, on behalf of the Commission, 
hereby certifies pursuant to 5 U.S.C. 605(b) that the final amendments 
will not have a significant economic impact on a substantial number of 
small entities.
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    \11\ 5 U.S.C. 601 et seq.
    \12\ 47 FR 18618 (Apr. 30, 1982).
    \13\ Id. at 18619.
    \14\ Id.
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B. Paperwork Reduction Act

    The Paperwork Reduction Act (``PRA'') provides that a Federal 
agency may not conduct or sponsor, and a person is not required to 
respond to, a collection of information unless it displays a currently 
valid control number issued by the Office of Management and Budget 
(``OMB''). This rulemaking amends requirements that contain a 
collection of information for which the Commission has previously 
received a control number from OMB. The title for this collection of 
information is ``Regulations and Forms Pertaining to Financial 
Integrity of the Market Place, OMB control number 3038-0024''. This 
collection of information is not expected to be impacted by the rule 
amendment approved herein, as the calculations which are already 
reflected in the burden estimate are not expected to change; the phase-
in period for assessing compliance relative to such calculations is the 
sole aspect of the collection of information that will be altered. The 
PRA burden hours associated with this collection of information are 
therefore not expected to be increased or reduced as a result of the 
final amendments.
    Accordingly, for purposes of the PRA, these final rule amendments 
would not impose any new reporting or recordkeeping requirements.

List of Subjects in 17 CFR Part 1

    Brokers, Commodity futures, Consumer protection, Reporting and 
recordkeeping requirements.

    For the reasons discussed in the preamble, the Commodity Futures 
Trading Commission amends 17 CFR part 1 as set forth below:

PART 1--GENERAL REGULATIONS UNDER THE COMMODITY EXCHANGE ACT

0
1. The authority citation for part 1 continues to read as follows:

    Authority: 7 U.S.C. 1a, 2, 5, 6, 6a, 6b, 6c, 6d, 6e, 6f, 6g, 6h, 
6i, 6k, 6l, 6m, 6n, 6o, 6p, 6r, 6s, 7, 7a-1, 7a-2, 7b, 7b-3, 8, 9, 
10a, 12, 12a, 12c, 13a, 13a-1, 16, 16a, 19, 21, 23, and 24 (2012).

0
2. In Sec.  1.22, revise paragraphs (c)(5)(iii)(B) and (C) to read as 
follows:

Sec.  1.22  Use of futures customer funds restricted.

* * * * *
    (c) * * *
    (5) * * *
    (iii) * * *
    (B) Nine months after publication of the report required by 
paragraph (c)(5)(iii)(A) of this section, the Commission may (but shall 
not be required to) do either of the following:
    (1) Terminate the phase-in period through rulemaking, in which case 
the phase-in period shall end as of a date established by a final rule 
published in the Federal Register, which date shall be no less than one 
year after the date such rule is published; or
    (2) Determine that it is necessary or appropriate in the public 
interest to propose through rulemaking a different Residual Interest 
Deadline. In that event, the Commission shall establish, if necessary, 
a phase-in schedule in the final rule published in the Federal 
Register.
    (C) If the phase-in schedule has not been terminated or revised 
pursuant to paragraph (c)(5)(iii)(B) of this section, then the Residual 
Interest Deadline shall remain 6:00 p.m. Eastern Time on the date of 
the settlement referenced in paragraph (c)(2)(i) or, as appropriate, 
(c)(4) of this section until such time that the Commission takes 
further action through rulemaking.

    Issued in Washington, DC, on March 18, 2015, by the Commission.
Christopher J. Kirkpatrick,
Secretary of the Commission.

    Note:  The following appendices will not appear in the Code of 
Federal Regulations.

Appendices to Residual Interest Deadline for Futures Commission 
Merchants--Commission Voting Summary, Chairman's Statement, and 
Commissioners' Statements

Appendix 1--Commission Voting Summary

    On this matter, Chairman Massad and Commissioners Wetjen, Bowen, 
and Giancarlo voted in the affirmative. No Commissioner voted in the 
negative.

Appendix 2--Statement of Chairman Timothy G. Massad

    Today we are finalizing a change to a rule that concerns one of 
the most important objectives of the Commission, which is to protect 
customer funds. In addition, today's action reflects one of my key 
priorities since taking office, which is to make sure our rules do 
not impose undue burdens or unintended consequences for the 
nonfinancial commercial businesses that depend on the derivatives 
markets to hedge commercial risks.
    Today's action concerns Regulation 1.22, regarding the posting 
of collateral. When a customer's account has insufficient margin, a 
futures commission merchant must commit its own capital--often 
referred to as the FCM's ``residual interest''--to make up the 
difference. Regulation 1.22 sets the deadline for posting residual 
interest. That deadline, in turn, affects when customers must post 
collateral. The regulation provided that the deadline, which is 
currently 6:00 p.m. on the next day, would automatically become 
earlier in a couple years, without any Commission action or 
opportunity for public input.
    Last fall, we proposed to amend the rule so that the FCM's 
deadline to post ``residual interest'' will not become earlier than 
6:00 p.m. without an affirmative Commission action and an 
opportunity for public comment. Today, we are finalizing that 
change.
    An earlier deadline can help make sure that FCMs always hold 
sufficient margin and do not use one customer's margin to support 
another customer, but it can also impose costs on customers who must 
deliver margin sooner. We will do a study of how well the current 
rule and deadline are working, the practicability of changing the 
deadline, and the costs and benefits of any change. Today's action 
will make sure that the Commission considers all those issues and 
that customers will have an opportunity to provide us with input on 
any future change the Commission may consider.

Appendix 3--Statement of Commissioner Mark P. Wetjen

    In the fall of 2013, the Commission made some important changes 
to rule 1.22, to which registered futures commission

[[Page 15510]]

merchants (FCMs) are subject. The revision to this rule, known as 
the ``residual-interest requirement'', clarified that one customer's 
funds could not be used by an FCM to cover another customer's margin 
deficit, but phased in a deadline for stricter compliance with this 
clarified standard. The change was designed to reduce risks to those 
customer funds placed in the care of FCMs, and were among a host of 
regulatory enhancements adopted by the Commission after two failures 
of large, registered FCMs in 2011 and 2012--MF Global and Peregrine 
Financial.
    I supported those regulatory enhancements--including the 
revision to rule 1.22--because of the importance of the matter 
addressed in each: The safekeeping of customer money, which is the 
most sacrosanct duty that any financial institution owes to its 
customers. Today, the overall framework of regulatory requirements 
that registered FCMs must comply with is substantially different 
today than in 2011. For example, FCMs are no longer permitted to use 
customer funds for in-house lending through repurchase agreements; 
they are subject to restrictions on the types of securities that 
customer funds can be invested in; they must pass on customer 
initial margin on a gross basis to the clearinghouse; through LSOC 
(legal segregation with operational comingling) they must legally 
segregate cleared swaps customer collateral on an individual basis; 
and they were required to significantly enhance their supervision of 
and accounting for customer funds. As a result, the risks posed to 
customers funds stewarded by FCMs have been significantly reduced.
    The recent customer protection rulemakings all were well 
intentioned, but indisputably carried some additional costs and 
burdens for both FCMs and their customers. The analysis was made at 
the time, however, that those burdens and costs were outweighed by 
the benefits to FCM customers, especially against the very recent 
backdrop of hundreds of millions of dollars of customer funds having 
been stolen, or tied up in a bankruptcy proceeding, for at least a 
period of time.
    The release before us essentially re-weighs the cost or burden 
on one hand, and the benefit on the other, and comes up with a 
slightly different, but well supported, conclusion regarding the 
residual-interest requirement. The costs or burdens revisited in the 
release: (1) Uncertainty to the marketplace invited by a time-of-
settlement compliance deadline that was subject to future review by 
the Commission staff, which suggested a change could come to the 
requirements, but might not; and (2) the anticipated costs to FCMs 
of having to finance the funding to top up their customers' margin 
deficits, or the cost to customers of pre-funding their margin 
accounts with FCMs. And the benefit at issue in the release: The 
value to an FCM customer of ensuring that its funds will never be 
borrowed by an FCM to cover another customer's deficit.
    The inherent risk to this common practice by FCMs is that should 
an FCM become insolvent after it posts required margin to the 
clearinghouse, but before it collects margin deficits from all of 
its customers, the customers whose funds were used to cover a 
deficit might not see those funds again, or perhaps only after a 
protracted bankruptcy proceeding. This practice also is not 
technically compliant with how rule 1.22 is written, which prohibits 
FCMs from ``using, or permitting the use of, the futures customer 
funds of one futures customer to purchase, margin, or settle the 
trades, contracts, or commodity options of, or to secure or extend 
the credit of, any person other than such futures customer.''
    This final rule keeps the residual-interest deadline at the 
close of business on the day following the margin-deficit 
calculation and eliminates the future deadline of the time of 
settlement on the day following the margin-deficit calculation. The 
Commission staff is still required to perform a feasibility study to 
determine whether future, more aggressive residual-interest 
deadlines would be desirable.
    The comment file overwhelmingly supported the change in today's 
final rule--in other words, commenters took the view that the 
potential costs associated with the 2013 residual-interest rule 
appear to outweigh the risk that some of their funds could be lost 
in the event their FCM becomes insolvent after the time of 
settlement, but before an FCM collects margin deficits. Indeed, the 
risk that an FCM becomes insolvent during this precise timeframe 
without some prior notice to its customers of financial stress at 
the FCM is very low. Notably, many comments supporting this final 
rule were filed by FCM customers, the constituency rule 1.22 is 
designed to protect, and who appreciate the aforementioned risk. The 
Commission must respect the comment process and the FCM-customer 
viewpoint that today's rule better balances the cost and benefits of 
rule 1.22.
    Another relevant factor that supports the change to rule 1.22 is 
the risk of concentration within the FCM community as a whole, and 
what that means for the costs to customers of trading in derivatives 
and its related impacts on liquidity in those markets. The number of 
registered FCMs has decreased in recent years, which may make it 
more difficult for customers to manage their risk by limiting their 
ability to access the markets, or by making it more difficult for 
them to allocate funds between multiple FCMs to minimize 
concentration risk.
    The results of the public comment process, when considered in 
the context of the overall stronger regulatory framework for FCMs 
and the concentration in the FCM community described above, give me 
the comfort needed to support the changes to 1.22 contained in 
today's release.
    On the other hand, without the five-year phase-in period, we 
might see a reluctance by the industry to move as swiftly to 
streamline margin-collection practices and to take advantage of any 
technological solutions that may be developed. Some recent 
technology advances hold the promise to reduce the very sorts of 
risks addressed by rule 1.22 by facilitating real-time margin 
collection and settlement. To be sure, those advances would have 
been more seriously and expeditiously tested and--if they 
demonstrate merit--embraced without the change to rule 1.22 we are 
releasing today. In other words, just as in 2013 when the existing 
rule was finalized, I continue to believe that the most costly 
solutions for complying with rule 1.22 that were anticipated by many 
commenters should not be the ones ultimately embraced by the 
marketplace. Moreover, given regulatory requirements imposed by 
other regulators, today members of the clearing ecosystem are 
exploring a variety of solutions to new compliance and capital 
burdens that also would ease and enable stricter compliance with 
rule 1.22, thus minimizing further the likelihood that pre-funding 
customer margin accounts with FCMs will become the preferred 
solution to compliance.
    Finally, I note that a study and roundtable to review these 
advancements, and how they might lower risks and related costs, 
still are mandated by law, and I ask the Chairman to direct staff to 
move swiftly to comply with these regulatory requirements so that 
the Commission may act appropriately when and if it needs to. I look 
forward to continuing to collaborate with staff and market 
participants as we work towards enhancing the safety and efficiency 
of our markets.

Appendix 4--Statement of Commissioner J. Christopher Giancarlo

    I support the Commission's action to change the residual 
interest deadline, if necessary or appropriate, only upon a 
Commission rulemaking following a public comment period. This 
approach will allow the Commission to better understand the market 
impacts and operational challenges of moving the residual interest 
deadline. This approach is especially important given the likely 
negative impacts on smaller futures commission merchants who provide 
our farmers, ranchers and rural producers with critical risk 
management services.
    I call on the Commission to take the same deliberative approach 
to the de minimis exception to the swap dealer definition so that 
the de minimis level does not automatically adjust from $8 billion 
to $3 billion, absent a rulemaking with proper notice and comment. 
Like today's proposal, the Commission should only adjust the de 
minimis threshold if necessary or appropriate after it has 
considered the data and weighed public comments.

[FR Doc. 2015-06548 Filed 3-23-15; 8:45 am]
 BILLING CODE 6351-01-P
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