I Offitt· Of ~ l1i.pcttor Gene ml 

IG 

U.S. COMMODITY FUTURES TRADING COMMISSION 

Office of Inspector General 

Three Lafayette Cen lre 

TO: 

FROM: 

1155 21st Street, NW, Washington, DC 2058 1 

Telephone: (202) 418-5110 

Facsimile: (202) 418-5522 

June 5, 20 17 

J. Christopher Giancarlo. Acting Chainnan 

Sharon Y. Bowen, Commissioner 

A. Roy Lavik ( t (( '-£ 

Inspector Genera 

SUBJECT: A Review of the Cost-Benefit Consideration for the Margin Rule for Uncleared 

Swaps 

Please find attached the final version of my office's Review of the Cost-Benefit 

Consideration for the Margin Ruic for Uncleared Swaps. 

We received Management's comments to the draft 1 circulated in April and have made no 

substantive changes to the report. I am pleased to read that Management agrees with the report's 

recommendations, pa rticularly with regard to more economically rigorous cost-benefit analysis 

and my view that the Office of the Chief Economist should engage in more long-term academic 

research into the markets within the CFTC's purview. 

Thank you for your continued support of my office. 

Attachment: A Review of the Cost-Benefit Consideration for the Margin Rule for Uncleared 

Swaps 

Cc (with attachment): Daniel J. Davis, General Counsel 

Anthony C. Thompson, Executive Director 
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Office of the Inspector and CONFIDENTIAL

A REVIEW OF THE COST-BENEFIT CONSIDERATION

FOR THE MARGIN RULE FOR UNCLEARED SWAPS

Prepared by

Robert C. Sarvis, Attorney-Economist 

Christopher G. Mufarrige, Attorney-Economist 

The Office of the Inspector General

Commodity Futures Trading Commission

June 5, 2017 

This report has been redacted by the Commodity Futures Trading

Commission under Freedom of Information Act Exemption 6, 5 U.S.C.

§552(b)(6), not by the CFTC OIG.
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EXECUTIVE SUMMARY

The Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank”) was 

signed into law on July 21, 2010.†

 Among its many provisions, Dodd-Frank mandated the 

promulgation of rules establishing margin requirements for uncleared swaps. In December 2015, 

the CFTC finalized its rule (“the Margin Rule”) implementing the mandate.‡ The CFTC is 

required by law to consider the costs and benefits of new rules. This report evaluates the CFTC’s 

consideration of the costs and benefits of the Margin Rule. 

A thorough consideration of costs and benefits based on rigorous economic analysis 

informs regulators, Congress, and the public of the likely effects of a policy change. But the 

CFTC lacks an institutional commitment to robust cost-benefit consideration. The cost-benefit 

consideration for the CFTC’s Margin Rule exemplifies this shortcoming.

§

The CFTC’s cost-benefit consideration lacks a clear discussion of the market failure 

justifying regulatory intervention. It lightly refers to the 2007-2008 financial crisis and asserts 

without scrutiny that the Margin Rule will reduce systemic risk. It makes no attempt to discern

the magnitude of the risk reduction or to quantify any costs other than the cost of maintaining 

margin collateral. Most importantly, the cost-benefit consideration elides numerous issues and 

unintended consequences that might undercut the asserted systemic risk-mitigating effects of 

margin or increase the burdens on market participants. Among other things, the cost-benefit 

consideration does not sufficiently address: 

• The possibility that the rule will reduce market liquidity and undermine efficient riskhedging by market participants;

• The procyclical effects of margin requirements and the possibility that the Margin

Rule could exacerbate systemic risk in times of market stress;

• The likelihood that systemic risk may be heightened by an industry-wide

homogeneous approach toward risk-modeling in response to the Margin Rule’s initial

margin modeling specification;

• The potential behavioral responses of market participants or interaction effects with

other laws and regulations that could transfer risk to other financial markets or to

systemically important firms, resulting in increased systemic risk;

• The possibility that interpretation, implementation, and enforcement of the rule may

differ from what was assumed by the rulemaking team.

† Dodd-Frank Wall Street Reform and Consumer Protection Act, Pub.L. 111-203, 124 Stat. 1376 (2010).

‡ CFTC Margin Requirements for Uncleared Swaps for Swap Dealers and Major Swap Participants, 81 Fed. Reg. 

636 (January 6, 2016).

§ Our analysis does not make any claims with respect to the legal sufficiency of the CFTC’s cost-benefit

consideration.
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In addition, the agency’s data infrastructure is inadequate, particularly with respect to the 

market for uncleared swaps. This inadequacy precludes a convincing analysis of costs and 

benefits, as well as a retrospective review of the rule’s efficacy. It also hampers regulatory 

oversight more generally. 

Based on our review, we make the following recommendations: 

1. When considering the costs and benefits of a proposed rule, the CFTC should

establish a baseline understanding of the marketplace; specify the market failure

justifying regulatory intervention; consider whether the market failure stems from

existing regulations; and apply assumptions symmetrically across policy options. The

CFTC should attempt to identify unintended consequences and strive to quantify

costs and benefits. Moreover, the CFTC should engage in periodic retrospective

analysis to monitor the cost-effectiveness of the rule. Because the substantive

economic issues highlighted in our review are all amenable to in-depth economic

research, we reaffirm our recommendation that the Office of the Chief Economist

(“OCE”) encourage long-term academic research, by its own staff and by outside

economists, to increase understanding of CFTC-regulated markets.

2. The CFTC should focus resources on improving its data infrastructure, particularly

with regard to uncleared swaps. With respect to rulemakings in particular, the CFTC

should strive to identify, early in the rulemaking process, the data that will be needed

to establish a baseline understanding of the market, to estimate the effects of potential

policy choices, and to conduct retrospective analysis for policy effectiveness.
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TABLE OF CONTENTS

INTRODUCTION ................................................................................................................................ 1

METHODOLOGY ............................................................................................................................... 1

BACKGROUND .................................................................................................................................. 2

What is Margin? ...................................................................................................................2

Broader Benefits of Margin .................................................................................................2

International Regulatory Response to the Financial Crisis ..................................................3

THE CFTC’S FINAL MARGIN RULE ................................................................................................. 4

The Rulemaking Team and Cost-Benefit Contributors .......................................................4

Summary of the Margin Rule ..............................................................................................4

THE MARGIN RULE COST-BENEFIT CONSIDERATION ...................................................................... 7

Law, Policy & Practice ........................................................................................................7

Cost-Benefit Consideration for the Margin Rule .................................................................8

DISCUSSION ................................................................................................................................... 13

Economic Analysis ............................................................................................................13

Data & Quantitative Analysis ............................................................................................27

RECOMMENDATIONS ...................................................................................................................... 29

1: The CFTC Should Include a Thorough, Objective, and Rigorous Economic 

Analysis, Adopting Symmetric Assumptions about Alternative Policy Regimes and 

Relying on Quantitative Analysis Where Possible ........................................................29

2: The CFTC Should Focus Resources on Improving Data Quality, Emphasizing 

Productive Collaboration Among the Business Divisions, OCE, and ODT, to 

Improve Cost-Benefit Analysis of New Rules ..............................................................30

CONCLUSION .................................................................................................................................. 31
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INTRODUCTION

On July 21, 2010, President Obama signed the Wall Street Reform and Consumer 

Protection Act (“Dodd-Frank”).1 Dodd-Frank amended the Commodity Exchange Act (“CEA”)2

to establish “a comprehensive regulatory framework designed to reduce risk, to increase 

transparency, and to promote market integrity within the financial system.”3 Dodd-Frank added a 

new section, 4s, requiring the CFTC to establish margin requirements for uncleared swaps.4

After a years-long rulemaking process involving extended deliberations with international 

regulatory bodies and harmonization efforts with other domestic regulators, the Commodity 

Futures Trading Commission (“CFTC”) finalized a margin rule for uncleared swaps (“the 

Margin Rule”) in December 2015. As part of the rulemaking process, the CFTC, as required by 

law, considered the costs and benefits of its proposed rule. This report takes stock of the CFTC’s 

cost-benefit consideration.

5

METHODOLOGY

To complete this review of the Margin Rule,6 we requested and reviewed hundreds of 

internal CFTC documents from the rulemaking team and cost-benefit contributors. We also 

reviewed publicly available materials such as relevant economics and finance scholarship, 

reports of international organizations like the Basel Committee on Banking Supervision 

(“BCBS”) and International Organization of Securities Commissions (“IOSCO”), public 

commentary and criticism of the proposed and final uncleared margin rules of the CFTC and 

Prudential Regulators, and past analyses, by various Inspectors General and others, of financial 

regulatory agencies’ cost-benefit analyses.7 We also conducted 29 interviews of 18 members of 

the CFTC, from the Division of Swap Dealer and Intermediary Oversight (“DSIO”), Division of 

1 Dodd-Frank Wall Street Reform and Consumer Protection Act, Pub.L. 111-203, 124 Stat. 1376 (2010). 2 7 U.S.C. § 1 et seq.

3 CFTC, Final Rule, Margin Requirements for Uncleared Swaps for Swap Dealers and Major Swap Participants, 81 

Fed. Reg. 636 (January 6, 2016) [hereinafter “CFTC Margin Rule”].

4 Dodd-Frank § 731; CEA § 4s(e)(2)(B)(ii); 7 U.S.C. § 6s(e)(2)(B)(ii). 5 Our analysis does not make any claims with respect to the legal sufficiency of the CFTC’s cost-benefit 

consideration.

6 CFTC OIG adhered to the principles laid out in Council of Inspectors General on Integrity and Efficiency, Quality 

Standards for Inspection and Evaluation (January 2012). 7 We issued reports on CFTC’s cost-benefit analyses in Dodd-Frank rulemakings in April and June 2011. CFTC 

OIG, An Investigation Regarding Cost-Benefit Analyses Performed by the Commodity Futures Trading Commission 

in Connection with Rulemakings Undertaken Pursuant to the Dodd-Frank Act (April 15, 2011) (“April 2011 OIG 

Report”); CFTC OIG, A Review of Cost-Benefit Analyses Performed by the Commodity Futures Trading 

Commission in Connection with Rulemakings Undertaken Pursuant to the Dodd-Frank Act (June 13, 2011) (“June 

2011 OIG Report”).
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Clearing and Risk (“DCR”), Office of General Counsel (“OGC”), and Office of the Chief 

Economist (“OCE”); multiple outside academic economists specializing in fields related to the 

CFTC’s jurisdiction; and staff at the Federal Reserve and the National Futures Association

(“NFA”). Our fieldwork took place between October 2016 and March 2017. 

BACKGROUND

What is Margin?

 “Initial margin” refers to an amount of relatively safe assets posted8 by a party at the 

inception of a swap agreement and, in the event of the posting party’s default, made available to 

the counterparty as protection against losses from having to re-establish or close the swap 

position. It takes time for the non-defaulting party to find a replacement swap deal, during which 

time the benefits of the original swap are unavailable and the price of the swap may be moving 

disadvantageously. Initial margin therefore reduces counterparty risk by providing collateral to 

the non-defaulting party in the event of default. Initial margin is set according to a forwardlooking calculation and therefore requires some method of quantifying the risk of adverse future 

events.

“Variation margin” refers to periodic payments representing changes in the value of the 

swap. Requiring frequent payments based on re-valuations of the swap protects against 

counterparty risk by leading to earlier recognition of a swap participant’s inability to meet its 

obligations and by preventing large exposures from building up undetected. 

Broader Benefits of Margin 

In addition to providing protection directly to the parties to the swap agreement, initial 

and variation margin offer some protection to the financial system more broadly. By mitigating 

the damage a failing party can inflict on a non-failing party, margin decreases the possibility that 

one firm’s default leads to defaults by other firms and, via the domino effect, system-wide 

contagion. The added burden of having to tie up more assets as swap margin collateral also 

forces parties to have more “skin in the game,” it reduces the number of swap agreements a firm 

can execute, and it therefore reduces the “build-up of risk that may ultimately pose systemic 

risk” to the financial system as a whole.9

8 The assets must be transferred to a third-party custodian. Ownership of the assets remains with the posting party. 

CFTC Margin Rule, 81 Fed. Reg. at 687.

9 CFTC Margin Rule, 81 Fed. Reg. at 665.
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International Regulatory Response to the Financial Crisis

According to the consensus view of regulators worldwide, a lack of transparency and 

excessive risk-taking in uncleared derivatives greatly exacerbated the 2007-2008 financial crisis 

and “exposed significant weaknesses in the resiliency of banks and other market participants.”10

In order to mitigate systemic risk in the marketplace, regulators sought to create a new globally 

harmonized regulatory framework. 

In 2009, the G2011 put forth basic principles for worldwide regulatory reform that 

included exchange-trading and central clearing of standardized derivatives contracts and capital 

requirements on uncleared swaps.12 In 2010, Congress passed Dodd-Frank, which required the 

CFTC to mandate clearing of standardized swaps and adopt margin requirements on uncleared 

swaps. In 2011, the G20 added initial and variation margin requirements on uncleared swaps to 

the reform agenda.13 From 2011 to 2013, a working group comprised of BCBS and IOSCO

members fleshed out a detailed regulatory reform agenda. Representatives of more than 20 

regulatory authorities took part in deliberations, including, from the United States, the Federal 

Reserve Board (“the Fed”), the Federal Deposit Insurance Corporation (“FDIC”), the Office of 

the Comptroller of the Currency (“OCC”), the Federal Reserve Bank of New York, the Securities 

and Exchange Commission (“SEC”), and the CFTC. In September 2013, the BCBS/IOSCO 

working group issued a draft report articulating eight “minimum standards” for uncleared margin 

rules, as well as a quantitative impact study to gauge potential liquidity and other consequences 

of the prescribed margin regime.14

The international framework presented by BCBS/IOSCO served as a blueprint for rulewriting efforts by domestic regulators and foreign regulators alike. In the United States, 

jurisdiction over swap market participants is fractured; as a result, three sets of margin rules were 

written. The regulatory agencies defined under the CEA as the “Prudential Regulators”—the 

Fed, FDIC, OCC, the Farm Credit Administration, and the Federal Housing Finance Agency15—

10 BCBS/IOSCO, Margin requirements for non-centrally cleared derivatives (March 2015), 

http://www.bis.org/bcbs/publ/d317.pdf. 11 The Group of Twenty (G20) is a “forum for international cooperation on financial and economic issues.” It 

includes Argentina, Australia, Brazil, Canada, China, France, Germany, India, Indonesia, Italy, Japan, Mexico, 

Russia, Saudi Arabia, South Africa, South Korea, Turkey, the United Kingdom, the United States, and the European 

Union. G20, FAQs, https://www.g20.org/Webs/G20/EN/G20/FAQs/faq_node.html. 12 G20 Leaders Statement: The Pittsburgh Summit (September 24-25, 2009), 

http://www.g20.utoronto.ca/2009/2009communique0925.html. 13 BCBS/IOSCO, Margin requirements for non-centrally cleared derivatives (March 2015), citing G20, Cannes 

summit final declaration, www.g20civil.com/documents/Cannes_Declaration_4_November_2011.pdf. 14 BCBS/IOSCO, Margin requirements for non-centrally cleared derivatives (September 2013), 

http://www.bis.org/publ/bcbs261.pdf. The report was finalized in 2015. See fn. 10. 15 7 U.S.C. § 1a(39).
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wrote a rule for the wide range of financial institutions within their jurisdiction.

16 The SEC 

proposed a rule for securities-based swap market participants not regulated by the Prudential 

Regulators.17 And the CFTC wrote a rule for non-securities-based swap market participants not 

regulated by the Prudential Regulators. Section 4s(e)(3)(D) of the CEA18 required the 

Commission to coordinate with the Prudential Regulators and the SEC "to the maximum extent 

practicable" and establish and maintain comparable margin rules.

The CFTC’s Margin Rule for Uncleared Swaps was finalized in December 2015 and 

published in the Federal Register in final form in January 2016. 

THE CFTC’S FINAL MARGIN RULE

The Rulemaking Team and Cost-Benefit Contributors

The rulemaking team for the Margin Rule consisted of team leader John Lawton, at the 

time the Deputy Director for Risk Surveillance in the Division of Clearing and Risk (“DCR”); 

, a senior financial risk analyst in the Division of Swaps and Intermediary 

Oversight (“DSIO”); Paul Schlichting, Assistant General Counsel in the Office of General 

Counsel (“OGC”); and , Attorney Advisor in DSIO.19 Thomas Smith, Deputy 

Director of Managed Funds & Financial Requirements in DSIO, was also a part of the team and 

advised it on potential issues overlapping with the CFTC’s forthcoming capital requirements 

rule. The consideration of costs and benefits was the joint responsibility of , an 

economist in the Office of the Chief Economist (“OCE”); Scott Mixon, Associate Director in 

OCE; and , an OCE economist. 

Summary of the Margin Rule

Dodd-Frank bifurcated the U.S. swaps market into cleared and uncleared products. A 

defined set of commonly transacted swaps are now required to be cleared by a derivative 

clearing organization.20 The remainder of swaps are “uncleared” and subject to the Margin Rule.

16 Prudential Regulators, Final Rule, Margin and Capital Requirements for Covered Swap Entities, 81 Fed. Reg. 

50605 (August 2, 2016).

17 SEC, Proposed Rule, Capital, Margin, and Segregation Requirements for Security-Based Swap Dealers and Major 

Security-Based Swap Participants and Capital Requirements for Broker-Dealers, 77 Fed. Reg. 70213 (November 23, 

2012).

18 7 U.S.C. § 6s(e)(3)(D).

19 Lawton was named the Acting Director of the Division of Clearing and Risk in January 2017. left the CFTC 

in late 2016.

20 See 7 U.S.C. § 1a(7). 
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The Margin Rule applies to covered swap entities (“CSEs”),

21 as defined by the CEA, 

that are not regulated by the Prudential Regulators.22 The margin requirements for an uncleared 

swap agreement depend on the CSE’s counterparty. On an uncleared swap with a CFTCregistered Swap Dealer (“SD”) or Major Swap Participant (“MSP”), the CSE must post and 

collect both initial margin and variation margin daily, subject to certain threshold requirements. 

The same requirements hold for swaps with financial end-users that have “material swaps 

exposure” (“MSE”).23 For swaps with financial end-users that do not have MSE, CSEs are not 

required to post or collect initial margin but are required to post and collect daily variation 

margin.24

Amount and Timing of Margin Required 

The Margin Rule provides two methods for determining the amount of initial margin 

required. CSEs can use a standardized table provided in the Margin Rule, or they can calculate 

initial margin using a margin model meeting certain requirements.25 Initial margin must be 

collected and/or posted “on or before the business day after execution,”26 and thereafter on a 

daily basis “until such uncleared swap is terminated or expires.”27

The amount of variation margin to be posted each day depends on changes in the 

valuation of the uncleared swap.28 Pricing swap agreements on a daily basis can be difficult, and 

mark-to-market valuation changes may not be readily available, so the margin rule requires CSEs 

to calculate variation margin for themselves and each counterparty “using methods, procedures, 

rules, and inputs that to the maximum extent practicable rely on recently-executed transactions, 

valuations provided by independent third parties, or other objective criteria.”29 Variation margin 

21 “Covered swap entity” means a swap dealer or major swap participant for which there is no prudential regulator. 

17 C.F.R. § 23.151. 

22 Id. 23 “Financial end user” means a counterparty that is not a swap entity and satisfies one of the twelve factors found in 

the definitions in 17 C.F.R. § 23.151. “Material swaps exposure” means that an entity and its margin affiliates have 

an average daily aggregate notional amount of uncleared swaps with all counterparties for June, July, and August of 

the preceding calendar year that exceeds $8 billion dollars. 17 C.F.R. § 23.151.

24 CFTC Margin Rule, 81 Fed. Reg. at 649. 25 The Margin Rule requires that initial margin “be set equal to a model’s calculation of the potential future exposure 

of the uncleared swap consistent with a one-tailed 99 percent confidence level over a 10-day close-out period.” 

CFTC Margin Rule, 81 Fed. Reg. at 653; see also 17 C.F.R. § 23.154(b)(2)(i). The rule requires the model to 

capture all “material risks” that may affect the uncleared swap, including potential non-linear price variables of the 

swap. 17 C.F.R. § 23.154(b)(2)(ix). 26 17 C.F.R. § 23.152. 27 Id. 28 17 C.F.R. § 23.155(a). 29 Id. Additionally, each CSE “shall have in place alternative methods for determining the value of an uncleared 

swap in the event of the unavailability or other failure of any input required to value a swap.” 17 C.F.R. § 

23.155(a)(2).
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calculations must be made on a daily basis,30 and CSEs must exchange variation margin on or 

before the business day after a new variation margin obligation is calculated.31

The burden of initial and variation margin obligations are lessened somewhat by certain 

thresholds and netting provisions. Initial margin only needs to be posted or collected when 

aggregate credit exposure “between a covered swap entity and its margin affiliates on the one 

hand, and a covered counterparty and its margin affiliates on the other” is equal to or greater than 

$50 million.32 Moreover, a transfer of margin with a particular counterparty need only take place 

on a given day if the amount to be posted or collected is greater than $500,000, based on the 

aggregate of all initial and variation margin required by the rule.33 In addition, CSEs may enter 

into an “eligible master netting agreement” (“EMNA”) with each counterparty, allowing them to 

net initial margin and variation margin (separately)34 across swaps in the same asset class within 

their portfolios.35 The EMNA governs the resolution of transactions in the event of a default.36

Eligible Forms and Custodianship of Margin Collateral 

Initial margin can be posted using a variety of different financial instruments: cash funds 

denominated in any specified major currency, debt securities issued or guaranteed by Treasury or 

another U.S. agency, certain government-sponsored enterprise debt securities, certain foreign 

government debt, certain corporate debt securities, certain listed equities, and gold.37 While the 

agency did decide to include equities in the list, the rule requires a minimum 15 percent haircut 

on all equities in the S&P 500 and a minimum 25 percent haircut on equities in the S&P 1500 

Composite Index but not in the S&P 500 Index.38

For variation margin, CSEs trading with each other must use cash, but when trading with 

financial end users, CSEs can use the same set of eligible collateral allowed for initial margin.39

Initial margin posted or collected by a CSE must be held by custodians unaffiliated with 

the CSE or its counterparty.40 The custodian is required to act pursuant to a legally binding 

30 17 C.F.R. § 23.155(a)(1). 31 17 C.F.R. § 23.153(a). 32 17 C.F.R. §§ 23.151, 23.154. 33 17 C.F.R. § 23.152(b)(3). 34 The Margin Rule does not permit the netting of initial and variation margin together. 17 C.F.R. § 23.152(c)(1). 35 CSEs may separate netting portfolios under a single EMNA. This allows the counterparties to separate uncleared 

swaps that are subject to the final rule from swaps that are not. Id. 36 Notably, the rule does not allow the inclusion of “walkaway” clauses intended to permit lower payment in the 

event of default than otherwise required by the rule. CFTC Margin Rule, 81 Fed. Reg. at 655-656. 37 17 C.F.R. § 23.156. 38 Id. 39 17 C.F.R. § 23.156(b)(1)(ii). 40 17 C.F.R. § § 23.152, 23.157(b); CFTC Margin Rule, 81 Fed. Reg. at 670. 
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agreement enforceable under the laws of the relevant jurisdiction.41 The custodial agreement 

must prohibit rehypothecating, repledging, reusing, or otherwise transferring the collateral to 

another party.42

Inter-affiliate Swaps 

The Margin Rule does not require initial margin for swaps between CSEs and affiliates 

that are swap entities or financial end users (“inter-affiliate swaps”) so long as “[t]he swaps are 

subject to a centralized risk management program that is reasonably designed to monitor and to 

manage the risks associated with the inter-affiliate swaps,” and “[t]he [CSE] exchanges variation 

margin with the margin affiliate . . . .”43

THE MARGIN RULE COST-BENEFIT CONSIDERATION

Law, Policy & Practice

Section 15(a) of the Commodity Exchange Act requires the CFTC to evaluate costs and 

benefits of a proposed action in light of: (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.44

The Commission has written guidance interpreting the cost-benefit requirement to allow 

for broad discretion to, among other things, omit quantification of costs, to give greater weight to 

any of the five enumerated considerations, and to put forward a rule notwithstanding its costs.45

The Commission’s guidance also relies on Executive Order 13563’s direction that each federal 

agency “(1) propose or adopt a regulation only upon a reasoned determination that its benefits 

justify its costs (recognizing that some benefits and costs are difficult to quantify); [and] (2) 

develop its regulations in a manner to impose the ‘least burden on society.’”46 The 

41 17 C.F.R. § 23.157(c)(2). 42 17 C.F.R. § 23.157(c)(1). 43 A prior version of the rule required initial margin for inter-affiliate swaps. The exemption was added in the final 

rule, along with the two conditions for obtaining the exemption. The two conditions were recommended by public 

commenters and are similar to conditions that were previously established by the Commission when providing an 

exemption from the clearing requirement for certain inter-affiliates swaps. 17 C.F.R. §23.159(a)(1); CFTC Margin 

Rule, 81 Fed. Reg. at 673.

44 7 U.S.C. § 19(a)(2). 45 CFTC issued guidance for proposed and final rules. CFTC, Guidance on and Template for Presenting CostBenefit Analyses for Commission Rulemakings (September 29, 2010); CFTC, Staff Guidance on Cost-Benefit 

Considerations for Final Rulemakings under the Dodd-Frank Act (May 13, 2011). Both are attached as appendices 

to the June 2011 OIG Report.

46 Exec. Order No. 13,563, 76 Fed. Reg. 3821 (January 21, 2011). Exec. Order 13,563 supplements Exec. Order 

12,866, 58 Fed. Reg. 51735 (October 4, 1993). These executive orders do not apply to the CFTC.
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Commission’s written guidance is silent on the statutory proviso that the agency, when issuing 

orders or adopting a rule or regulation, “endeavor to take the least anticompetitive means of 

achieving [its] objectives.”47

In practice, cost-benefit consideration varies from rule to rule. According to one staff 

member, then-Chairman Massad changed the cost-benefit approach to allow more flexibility for 

divisions, and cost-benefit consideration has become more of an ad hoc approach. 

Cost-Benefit Consideration for the Margin Rule 

The CFTC’s cost-benefit consideration states that the Margin Rule “should mitigate the 

overall credit risk in the financial system, reduce the probability of financial contagion, and 

ultimately reduce systemic risk.”48 The cost-benefit consideration further states that margin 

serves as “a first line of defense,” allowing a CSE to “absorb the losses” from a counterparty 

default.

49 The cost-benefit consideration also states that margin serves as a risk management tool 

by limiting the amount of leverage that either counterparty can take,50 and may incentivize the 

move to centralized clearing of swaps.51 These direct effects contribute to reducing “the 

possibility of a systemic event.”52 And by protecting the financial system, the Margin Rule, in 

turn, potentially mitigates spillover to the broader economy. 

Amount and Quality of Margin Collateral 

The Margin Rule requires calculation of initial margin based on a ten-day close-out 

period because ten days is, according to the cost-benefit consideration, an appropriate period “to 

ensure that a non-defaulting party has sufficient time to close out and replace its positions in the 

event of counterparty default.”53 The cost-benefit consideration concedes that the ten-day closeout period may lead to excessive initial margin, but speculates that most of the instruments that 

can be liquidated in less than ten days are likely being cleared, so the costs associated with 

excessive margin may be limited.54

47 7 U.S.C. § 19(b). 48 CFTC Margin Rule, 81 Fed. Reg. at 689.

49 Id. 50 Id. 51 Id. 52 Id. 53 Id. at 685. 54 Id. The Commission decided against setting separate close-out periods for different asset classes or instruments 

because of the operational burden on market participants and the added oversight burden on the Commission. CFTC 

Margin Rule, 81 Fed. Reg. at 658.
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The cost-benefit consideration addresses not only the amount but also the quality of 

margin collateral. In times of financial stress, lower quality assets tend to be less liquid, 

potentially making it difficult for non-defaulting entities to use. If only highly liquid collateral 

were allowed, CSEs would be less likely to incur a loss following default from its counterparty.55

However, an overly restrictive standard might drain liquidity from the counterparties out of 

proportion to the risk reduction. The cost-benefit consideration also acknowledges that the initial 

margin requirement creates a new, added cost to CSEs—the cost of acquiring and maintaining 

appropriate collateral, including the opportunity cost of foregone higher returns from alternate 

uses of capital.56 The cost-benefit consideration suggests the choice of eligible collateral strikes a 

balance between these concerns.57

The one effect of the Margin Rule the CFTC tried to quantify is the aforementioned cost 

of acquiring and maintaining financial assets for use as initial margin collateral. The cost-benefit 

consideration took global estimates of total initial margin collateral requirements from two 

international reports,58 and then scaled them by an estimate of the CFTC-regulated share of the 

global uncleared swaps market to obtain a range for the likely total amount of initial margin 

collateral needed by the swap market participants within the CFTC’s jurisdiction.

59 This range 

was then converted to costs by multiplying three different estimates of the yield differential 

between higher-yield, riskier assets of a typical portfolio, and the kinds of low-risk, low-yield 

assets acceptable as margin collateral. The three estimates of the yield differential varied from 25 

basis points to 160 basis points.60 Based on its assessment of accuracy, the cost-benefit 

consideration puts the cost of the final rule within a range of $290 million to $2.05 billion.61

55 Id. at 686-687. 56 Id. at 682. 57 The cost of posting initial margin will depend on whether the CSE already owns the requisite margin or needs to 

raise additional funds to secure the assets. As the costs of funding rises relative to the rate of return on the collateral, 

the greater the cost of posting collateral. CFTC Margin Rule, 81 Fed. Reg. at 684. 58 See BCBS/IOSCO, Margin Requirements for Non-Centrally Cleared Derivatives: Second Consultative Document

(Basel, Switzerland: Bank for International Settlements, February 2013); CFTC Margin Rule, 81 Fed. Reg. at 690-

691.

59 The agency first estimated the U.S. share of global uncleared swaps at 57%. Then, using Swap Data Repository 

(“SDR”) data on interest rate swaps, which the agency asserts represents the majority of uncleared swaps’ notional

value, it calculated a scaling factor of 25% to capture the CFTC-regulated share of the US market. The agency 

acknowledges its estimates may be over- or under-inclusive, but argues they are likely conservative because they do 

not apply the $8 billion MSE threshold or exclude swaps with a non-financial end-user counterparty. CFTC Margin 

Rule, 81 Fed. Reg. at 690-692. 60 The cost-benefit consideration argues that, due to the idiosyncratic capital structure of CSEs, an expansive 

opportunity cost estimate is necessary to capture the full-range of potential costs. CFTC Margin Rule, 81 Fed. Reg. 

at 692.

61 Id. at 691.
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The cost-benefit consideration does not provide a quantification of the funding costs 

associated with variation margin. However, it acknowledges that the variation margin 

requirement imposes additional costs on CSEs and financial end users, who may have to adjust 

their portfolios to ensure timely access to eligible variation margin. For CSEs, the cost-benefit 

consideration asserts that the cash requirement for variation margin “could have minimal impact” 

because CSEs already use cash to exchange variation margin,62 and for a CSE that has a 

“relatively flat swap book,”63 the cost-benefit consideration expects the cash-only requirement to 

be small.64 On the other hand, a number of CSEs will need to “convert non-cash collateral

collected from financial end users into cash to post to their swap dealer and major swap 

participant counterparties.”65 One potential solution, as put forward in the cost-benefit 

consideration, is for a CSE to use a repurchase agreement to convert the non-cash collateral into 

cash. However, the cost-benefit consideration notes that, during a financial crisis, repo markets 

dry up and CSEs may not be able to get access to cash; in order to avert technical insolvency, the 

agency recommends CSEs secure a committed repo agreement which provides them the right to 

enter into a repo agreement.66

For non-CSE financial end-users, the cost-benefit consideration states that the final rule 

expanded, in response to public comments,67 the list of eligible collateral beyond cash, “which 

may reduce funding costs.”68 The cost-benefit consideration also notes that “the final rule 

includes a minimum transfer threshold of $500,000, which should mitigate some of the 

administrative burdens and counter-cyclical effects associated with the daily exchange of 

variation margin, without resulting in an unacceptable level of uncollateralized credit risk.”69

Administrative Costs 

The cost-benefit consideration discusses a number of administrative cost issues 

associated with the margin requirements—since the per-entity costs related to complying with 

the rule will vary depending on the infrastructure, and other difficulties associated with 

quantifying administrative costs, the agency determined it too difficult to quantify, so provided a 

62 CFTC Margin Rule, 81 Fed. Reg. at 687. 63 A “relatively flat book” has few positions or positions that mostly net out. 64 CFTC Margin Rule, 81 Fed. Reg. at 693. 65 Because the rule allows for non-cash variation margin collateral with a financial end user, the agency expects 

potential collateral mismatch in the market. Id. 66 Id. 67 CFTC Margin Rule, 81 Fed. Reg. at 686. 68 Id. 69 Id.
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qualitative discussion instead.70 The cost-benefit consideration notes it expects a number of 

aspects in the rule to mitigate the administrative cost impact, including minimum thresholds and 

the expanded list of eligible collateral.71 The cost-benefit consideration also believes the largely 

harmonized rules between the Prudential Regulators will potentially lower administrative costs.

72

The agency is also striving to provide for greater “lead in” times to allow industry more 

time to construct compliance systems—the agency believes that by giving industry more time to 

plan buildouts, firms should be able to reduce operational errors and costs.73 The cost-benefit 

consideration then goes on to itemize the key documents related to administering the Margin 

Rule, including: self-disclosure documents, credit support annexes (“CSAs”), and tri-party 

segregation of margin collateral.74

Effects on Liquidity and Hedging 

The agency acknowledges that “required margin may reduce the availability of liquid 

assets for purposes other than posting collateral and therefore affect the ability of CSEs to 

engage in swaps activities and financial end users to manage or hedge the risks arising from their 

business activities.”75 The rule tries to mitigate the CSEs costs “with initial margin thresholds, 

expansion of eligible collateral for variation margin for financial end users, and minimum 

transfer amount."76

The cost-benefit consideration also notes that some market participants may, in response 

to the costs of the Margin Rule, substitute away from swaps in favor of other financial 

instruments, including futures and cleared products that require less margin.77 The cost-benefit 

treats this as a positive result, but observes that “this may result in basis risk given the 

standardization of these products.”78

Netting

The cost-benefit consideration states, “The eligibility criteria for netting are consistent 

with industry standards currently being used for bank regulatory capital purposes, which should 

reduce the administrative costs that would be incurred in connection with any renegotiation of 

70 CFTC Margin Rule, 81 Fed. Reg. at 693. 71 Id. 72 See CFTC Margin Rule, 81 Fed. Reg. at 689, 693. 73 Id. at 693. 74 Id. 75 Id. at 689. 76 Id. 77 CFTC Margin Rule, 81 Fed. Reg. at 689-690. 78 Id. at 689, fn. 398.
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the terms of existing netting agreements.”79 The Commission admits that not allowing netting 

across asset classes increases the initial margin burden on industry but believes this is warranted 

given cross-asset class correlation break down during times of stress.80 Additional risk-exposure 

requirements include maintenance of a robust risk-control process to “re-evaluate, update, and 

validate” the model to ensure compliance with the Commission’s baseline requirements.81 The 

cost-benefit consideration acknowledges these measures may result in additional costs to CSEs.82

Harmonization 

The agency highlights the global nature of the uncleared swaps world and the need to 

reduce “significant disparities in margin rules” by harmonizing its rule with other domestic and 

foreign regulators to prevent competitive disadvantages and potential regulatory arbitrage:

The Commission also notes that the final margin rule, like other requirements 

under the Dodd-Frank Act, could have a substantial impact on the relative 

competitive position of market participants operating within the United States and 

across various jurisdictions. U.S. or foreign firms could be advantaged or 

disadvantaged depending on how the Commission’s margin rule compares with 

corresponding requirements under Prudential Regulators’ margin regime or in 

other jurisdictions. To mitigate undue competitive disparities, the Commission, in 

developing the final rule, harmonized the final rule with those of the Prudential 

Regulators and the BCBS–IOSCO framework.83

The cost-benefit consideration states that the Commission found no indication of “material 

differences in the costs and benefits discussed herein between foreign and cross-border swaps 

activities of CSEs and financial end users affected by the rule,” and as a result the cost-benefit 

consideration “applies to all swap activities, domestic and cross border, to which the final rule 

applies.”84 In a footnote, however, it recognizes that, “[a]s foreign jurisdictions put in place their 

own margin rules in the future, the existence of these rules may affect the costs and benefits of 

the Commission’s rules for foreign CSEs and financial end users.”85

79 Id. at 686. 80 Id. at 685. 81 Id. 82 Id. 83 Id. at 690. 84 Id. at 682. 85 Id. at 682, fn. 359.
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DISCUSSION

In previous OIG reviews of the CFTC’s cost-benefit analyses, we opined that OGC takes 

a narrow view of the legal requirements for cost-benefit consideration, that “Commission staff 

view section 15(a) compliance to constitute a legal issue more than an economic one,” and that 

such a view does not “enhance the economic analysis.”86 We maintain the view that the CFTC 

has an inadequate institutional commitment to robust economic and quantitative analysis of its 

rules, irrespective of whether its cost-benefit consideration satisfies statutory requirements. 

Thorough and objective cost-benefit analyses of new rules would improve the economy and 

efficiency of the Commission’s regulatory program.87

We believe rigorous economic analysis is necessary to produce a substantive and reliable 

cost-benefit analysis for proposed rules of a financial regulatory agency. This is true even when 

the CFTC has been commanded by Congress to implement a rule. And it is true even when the 

CFTC is crafting its rule pursuant to a detailed international framework that the CFTC 

rulemaking team participated in creating. A substantive analysis and estimation of costs and 

benefits—both seen and unseen, intended and unintended—educates Congress, the public, 

market participants, and the agency itself. The CFTC should be institutionally committed to 

laying forth its analysis and expectations in sufficient detail not only to permit, but to invite, 

criticism and future review.

In presenting our analysis below, we wish to emphasize that the rulemaking team 

members and cost-benefit contributors recognized the many issues we raise, but were hampered 

by significant data limitations and a lack of institutional commitment to the identification and 

quantification of costs and benefits, thus depriving the Margin Rule of the kind of analysis one 

might expect from an economic regulatory agency.88

Economic Analysis

A thorough consideration of costs and benefits, based on rigorous economic analysis, 

enables regulators to recognize when markets are operating sub-optimally, to identify the nature 

of the market failure, to discern what kind of intervention is appropriate, and to evaluate the 

likely effects of various policy options. A well-done cost-benefit analysis presents, for the 

benefit of the public, Congress, market participants, and the CFTC itself, evidence and 

86 April 2011 OIG Report. 87 OIG has a mandate to detect and prevent waste and abuse, and to recommend policies designed to promote the 

economy, efficiency, and effectiveness of the CFTC. See 5 U.S.C. App. 3 § 2(2). 88 For further discussion of shortcomings in cost-benefit analysis at financial regulatory agencies, see Hester Peirce, 

Economic Analysis by Federal Financial Regulators, 9 George Mason J. L. ECON. & POL’Y. 569 (2013).
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discussion of the market failure, the reasoning justifying the regulation, and the likelihood the 

regulation will benefit the market sufficiently to outweigh the costs imposed on market 

participants.

The CFTC’s published consideration of costs and benefits for the Margin Rule fails to 

provide such economic analysis. The cost-benefit consideration does not effectively explain the 

nature of the market failure being addressed by the rule, other than by reference to the financial 

crisis and the undefined catch-all term “systemic risk.”89 And it is often baldly asserted or merely 

assumed that the Margin Rule will produce the intended benefits.90 Meanwhile, discussion of 

costs is mostly restricted to some immediate practical concerns like the cost of funding margin 

collateral and some changes made between the proposed rule and the final rule in response to 

public comments. Other types of compliance costs are elided.

91 Unintended consequences 

potentially undercutting the systemic benefits of the Rule are mentioned cursorily, if at all. Such 

an asymmetric treatment of costs and benefits is inappropriate in an objective examination based 

on rigorous economic thinking. A comparison of the pre- and post-Margin Rule regimes—not to 

mention other rule variations or policy alternatives—requires symmetric assumptions and 

analysis to reach reliable conclusions about costs and benefits.92

In the subsections that follow, we expand on the above summary criticism via some 

observations relating to the complexity of financial markets and the workings of the Margin 

89 Nor does it question whether the systemic risks being addressed by the Rule stem from existing regulations, the 

alteration of which might be more of a salutary change than the addition of further regulations.

90 For example, the cost-benefit consideration says that “[u]nder the final rule, the market and the public will benefit 

from the required collateralization of uncleared swaps. More specifically, the margin requirements should mitigate 

the overall credit risk in the financial system, reduce the probability of financial contagion, and ultimately reduce 

systemic risk” (emphasis added). CFTC Margin Rule, 81 Fed. Reg. at 689. Similarly, the cost-benefit consideration 

provides no support for the scope of the definition of financial end-user “intended to capture those market 

participants that by the nature and scope of their financial activities present a higher level of risk of default and are 

integral to the financial system, and thus, pose greater risk to the safety and soundness of their CSE counterparties

and the stability of the financial system.” Id. at 682.

91 For example, the cost-benefit consideration does not make the kind of compliance estimates like those done for 

the proposed CFTC Regulation Automated Trading, 81 Fed. Reg. 85334, 85366-80 (“Reg AT”). The Reg AT costbenefit consideration estimated various compliance costs, such as computer hardware and software, personnel, 

training and certifications, contract revisions, etc. Id. The absence of compliance cost estimates in the Margin Rule 

cost-benefit consideration is particularly noteworthy in light of reports that market participants were struggling to 

revise credit support annex (“CSA”) agreements ahead of the March 1, 2017, deadline for posting variation margin. 

See, e.g., Hannah Murphy, Derivatives industry calls for new trading rules to be delayed, Financial Times (February 

8, 2017) (“. . . only a handful of the hundreds of asset managers affected have the right legal paperwork.”). The 

CFTC ultimately granted relief prior to the deadline. Joe Rennison, US delays derivatives rules to avoid market 

disruption, Financial Times (February 14, 2017).

92 On the importance of symmetric assumptions in analyzing policy regimes, see Thomas W. Hazlett, David Porter, 

Vernon Smith, Radio Spectrum and the Disruptive Clarity of Ronald Coase, 54 J. L. & ECON. S126, S156 (“What 

Coase fundamentally contributed was a symmetric analysis of property regime choices, explaining that the costs of 

the price system were real, but so were the costs of any alternative . . . . Coase argued for analytical symmetry on 

logical grounds.”), discussing R. H. Coase, The Problem of Social Cost, 3 J. L. & Econ. 1 (1960) and R. H. Coase, 

The Federal Communications Commission, 2 J. L. & ECON. 1 (1959).
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Rule. Our intent is not to pass judgment on the wisdom of the Margin Rule itself, but to 

emphasize how the Rule, and the public’s understanding of the Rule, might have profited from a 

thorough cost-benefit analysis grounded in economics. 

Systemic Risk

A central goal of Dodd-Frank is to reduce systemic risk, and the Margin Rule is intended 

to further that goal by reducing counterparty risk in uncleared swap agreements and deleveraging 

swap dealers.

93 The cost-benefit consideration asserts or assumes that the Margin Rule will 

substantially reduce systemic risk, but it does not analyze the general claim with any skepticism 

or analytical rigor, nor does it attempt to quantify the size of the systemic risk reduction.94

Numerous decisions made in crafting the Rule, whether imposing costly mandates on market 

participants, reducing implementation costs, exempting certain institutions from various 

provisions, or setting particular thresholds and time frames, were made with an eye toward 

mitigating systemic risk. But there is no actual analysis of any of these decisions; the CFTC does 

not “show its work.” 

There is good reason to be skeptical of unexamined assertions that the benefits of the 

Margin Rule will be as pronounced as necessary to justify the costs imposed on the market. 

While we do not doubt that margin can act as a prophylactic against certain sources of systemic 

risk, it is conceivable that the Margin Rule will not have nearly as great a risk-reducing effect as 

expected, or will impose greater costs than anticipated, due to the complexity of financial 

markets and the behavioral responses of market participants. Moreover, it is possible that the 

Margin Rule will have unintended consequences that exacerbate or create other sources of 

systemic risk.

Correlatively, a thorough and convincing cost-benefit analysis might show that the 

Margin Rule does not go far enough. Perhaps, for example, it would support the view that interaffiliate swaps should not have been exempted from initial margin requirements.95 In July of 

2015, rulemaking team leader John Lawton and team member wrote a memo to 

then CFTC Chairman Massad arguing that the omission of initial margin requirements for inter93 CFTC Margin Rule, 81 Fed. Reg. at 681.

94 E.g., the cost-benefit consideration states, “The financial crisis of 2008 has had profound and long-lasting adverse 

effects on the economy, and therefore reducing the potential for another systemic event provides significant, if 

unquantifiable, benefits.” Id. 95 The proposed rule “would have required two-way initial margin and variation margin for swaps between CSEs 

and affiliates that were swap entities or financial end users.” CFTC Margin Rule, 81 Fed. Reg. at 673. Staff 

indicated then-Chairman Massad was responsible for the decision to make the change exempting inter-affiliate 

swaps.
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affiliate swaps undermined the rule’s efficacy.96 Their view did not prevail, but the cost-benefit 

consideration provides no analysis or justification, just the conclusory statement: 

The Commission believes that the Prudential Regulators’ approach, which 

requires swap dealers subject to the Prudential Regulators’ margin rules to collect 

only for initial margin, would be too costly to the extent that the subject interaffiliate trade is viewed as shifting risks within the consolidated group.97 

The lack of analysis seems inexplicable in light of staff’s view of the counterparty risk 

represented by inter-affiliate swaps. The memo to the Chairman states:

Given that inter-affiliate trades equal approximately 50% of all uncleared swaps 

at the large dealers, it is possible that for many CSEs, the largest single 

counterparty is an affiliate. In these cases, measured in terms of magnitude, if not 

likelihood, the largest counterparty risk such CSEs face is with an affiliate.98

The lack of analysis also seems strange given the consensus on the importance of rule 

harmonization and the statutory requirement for cooperation among the financial regulatory 

agencies.99

Market Liquidity 

A possible effect of imposing margin requirements on uncleared swap deals is a 

reduction in market liquidity.100 Because of the new margin costs associated with entering into

an uncleared swap agreement, firms will be willing to engage in fewer such agreements. This is, 

to some extent, an intended effect101 that likely results in a less liquid market with fewer 

available counterparties. Less liquidity and fewer available counterparties can reduce the ability 

of firms to hedge risk, increasing the cost of swap deals, and reducing efficiency in the market 

for uncleared swaps.102 These costs are explored in the cost-benefit consideration only cursorily. 

96 Internal Memorandum from John Lawton and to Chairman Massad, Uncleared Margin Rules – 

Inter-affiliate Swaps (July 24, 2015) (on file with OIG). 97 Id. 98 Id. 99 The internal memo to the Chairman highlighted the fact that the Prudential Regulators were not exempting interaffiliate swaps: “The Act imposes equal responsibility on the Commission and the Prudential Regulators to use 

margin requirements to ensure the safety and soundness of SDs and MSPs. But differing treatment of inter-affiliate 

swaps would make SDs subject to the Prudential Regulators safer than SDs subject to the CFTC. The Act requires 

that the rules of the CFTC and the Prudential Regulators be comparable to the maximum extent practicable. But 

differing treatment of inter-affiliate swaps could result in different requirements for 50% of the market." Id. 100 The Commission implicitly acknowledges the rule may constrain liquidity by stating the eligible collateral rules 

may be overly restrictive. CFTC Margin Rule, 81 Fed. Reg. at 686-687. 101 “Margin rules for uncleared swaps are designed to . . . limit the amount of leverage that can be undertaken by 

CSEs (and other market participants, in the aggregate). CFTC Margin Rule, 81 Fed. Reg. at 681. 102 Notably, it affects one of the 15(a) factors—price discovery.
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Moreover, mitigation of risk in the uncleared swap market may simply reflect the transfer of risk 

to other areas of the marketplace. Such effects can increase systemic risk elsewhere, perhaps 

hidden from regulators. 

The rulemaking team and cost-benefit contributors are, of course, aware of such 

possibilities. But the cost-benefit consideration does not give due consideration to the size of the 

imposed costs from reduced market liquidity; nor does it address the possibility that the assumed 

reduction in counterparty risk from uncleared swaps might fail to reduce overall systemic risk, 

either because the rule transforms counterparty risk into liquidity risk or because the rule spreads 

systemic risk elsewhere. A thorough cost-benefit analysis cannot pass over the indirect costs or 

treat the presumed reduction of systemic risk in the target market as a presumptive reduction of 

systemic risk in toto. 

Procyclicality

Margin requirements can be “procyclical” in nature in the sense that margin payments 

may be most needed, and more difficult to make, when the safe assets accepted as margin 

collateral are costly to obtain.103 Fiscal crises can create significant volatility in asset prices. 

Tightening credit markets along with unanticipated increases in margin requirements can make it 

progressively more difficult to obtain margin collateral.

104 “[O]pportunity costs per dollar of 

initial margin tend to grow in crisis periods, as risk premia increase yields on risky assets and a 

flight to quality increases demand for—and hence the price of—risk free assets eligible as 

collateral, depressing their yields.”105 Traders respond to increases in margin by reducing their 

positions, and the loss of trades can exacerbate price volatility, further exacerbating the 

procylical issues.106 Consequently, in a period of elevated financial stress, margin requirements 

can act as an accelerator of systemic risk rather than dampening the financial stress effects.107

103 See ISDA, Initial Margin for Non-Centrally Cleared Swaps: Understanding the Systemic Implications

(November 2012). See Craig Pirrong, Clearing and Collateral Mandates: A New Liquidity Trap?, 24 J. APPLIED 

CORP. FIN. 67 (Winter 2012). 104 See NERA Economic Consulting, Cost-Benefit Analysis of the CFTC’s Proposed Margin Requirements for 

Uncleared Swaps (December 2, 2014), http://www.nera.com/publications/archive/2014/cost-benefit-analysis-of-thecftc-s-proposed-margin-requirements.html. 105 Id. 106 Id. 107 The problem of market illiquidity in times of financial stress is of particular importance for CSEs, who may need 

to convert non-cash collateral collected from financial end-users into cash to post to swap dealer counterparties. 

Ordinarily, CSEs might make use of repurchase agreements, or “repo.” But “[i]n times of severe financial stress, the 

repo market may not provide access to market participants. If this happens, a CSE may not be able to turn noncash 

collateral into cash which might cause technical defaults.” CFTC Margin Rule, 81 Fed. Reg. at 693. Rather than 

providing substantive analysis of the potentially negative systemic effects, the cost-benefit consideration brushes 

this concern aside: “In order to avoid technical defaults, a CSE may elect to pay for a committed repo agreement that 
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Put differently, the margin requirements, by attempting to reduce counterparty risk, may 

potentially create new and unforeseen liquidity risks in the marketplace.108

The cost-benefit consideration does not directly discuss the potential procyclical effects 

of the Margin Rule either as a potential cost or as a possible counterargument to the claimed 

benefit of reduced systemic risk. In interviews, some members of staff acknowledged that the 

Margin Rule has these procyclical effects, that such effects are an unavoidable consequence due 

to the nature of margin, and that some firms may be pushed into default and bankruptcy in 

certain circumstances where the firm would have survived in the absence of the Rule. But staff 

maintained that, although certain individual firms may be weaker in times of high financial 

volatility, the system as a whole will be stronger.

Homogenized Risk 

The Margin Rule provides two methods for determining the amount of initial margin to 

be posted. One method is by reference to a table in the rule. The other method is via statistical 

models having certain attributes specified by the rule.109 

Because initial margin is set according to a forward-looking and probabilistic calculation, 

based on the costs incurred in the event of a counterparty default as well as potential future 

volatility, specifying regulatory parameters for calculating initial margin is both a theoretical and 

practical challenge. Regulatory definition and approval of acceptable models may be 

unavoidable, if initial margin is to be mandated, and yet such definitional detail can potentially 

lead to homogeneity in the quality and scope of industry risk-modeling. Put differently, an entire 

industry may be incentivized to treat (or ignore) the same sources of risk in the same general 

manner. Such homogeneity can, in turn, increase systemic risk in the event that a risk 

materializes that was systematically ignored or underestimated.

As it turns out, industry did pursue the development of, and has now coalesced around, a 

standardized model developed by the International Swaps and Derivatives Association (“ISDA”, 

“the ISDA model”) for calculating margin,110 though many dealers have more sophisticated 

models for internal risk management. A standardized model does have significant benefits for 

market participants. If each firm were to use its own model, there might be frequent disputes 

over initial margin amounts, particularly in cross-border swap agreements governed by multiple 

gives them the right to enter into a repurchase agreement for a fee at a predetermined repo rate (presumably at a rate 

significantly above the normal repo rate)." Id. 108 See Craig Pirrong, Clearing and Collateral Mandates: A New Liquidity Trap?, 24 J. APPLIED CORP. FIN. 67 

(Winter 2012).

109 CFTC Margin Rule, 81 Fed. Reg. at 686. 110 ISDA, SIMM: From Principles to Model Specification (March 3, 2016).
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jurisdictions; or there might be a “race to the bottom,” where firms undercut their competitors’ 

initial margin demands to create a cost advantage. A standard model also makes it easier for 

smaller firms to forecast required margin, and facilitates model approval by regulators. ISDA 

and CFTC staff believe that a standard model will enable firms to accurately forecast liquidity 

needs from margin calls, efficiently resolve disputes between parties, and streamline government 

compliance issues.

But staff acknowledge there is potential for the model to ignore or underestimate 

particular types or sources of risk.111 A direct result is that the entire industry may face 

insufficient initial margin in the event of defaults caused by the materialization of underpriced 

risks. An additional concern is that the reduced cost of certain swap deals relative to others, due 

to lower initial margin requirements per a model underpricing certain risk factors, might 

incentivize an industry-wide move toward those very swap deals whose risks are underpriced, 

i.e., a move toward greater assumption of risks the industry is blind to.112 This can potentially

increase systemic risk.113

Reliance on a single base model geared toward a single regulatory specification may be 

of further concern because it can mislead regulators as well as market participants. This may be 

especially true here because the CFTC has essentially outsourced model approval and oversight 

to the NFA.114 CFTC staff are hopeful that backtesting will capture the majority of issues before 

they become problematic, and oversight of the simulated initial margin model does, in theory, 

allow CFTC or NFA staff to require add-ons and/or multipliers that increase the required initial 

margin above what the model calculates. But it may be too rosy an assumption that future 

oversight will be so perceptive and proactive.115 Among other challenges, staff indicate that the 

CFTC’s data limitations will severely hinder its ability to help monitor the model. 

111 We have already heard from a risk analyst in DCR that there is evidence of the initial margin model undervaluing 

certain classes of swaps and therefore producing lower margin calculations.

112 For example, assume the simulated initial margin model undervalues the relative risk factors for a particular asset 

class. The model would require less initial margin on agreements involving that asset class, reducing the total cost of 

entering into an agreement relative to those involving properly risk-priced asset classes. Market participants would 

be incentivized by the lower relative cost to engage in transactions involving that asset class.

113 Some observers argue that an important factor in the 2007-08 financial crisis was Basel risk-weights making the 

relative price of mortgage-backed securities cheaper relative to other securities. Banks’ internal models showed low 

probabilities of default due to incorrect risk-valuations of mortgage backed securities. See Jeffrey Friedman, A 

Perfect Storm of Ignorance, Cato Policy Report Vol. XXXII No. 1 (January/February 2010), 

https://object.cato.org/sites/cato.org/files/serials/files/policy-report/2012/2/cpr32n1-1.pdf. 114 See, e.g., National Futures Association, Notice to members (March 10, 2016), 

https://www.nfa.futures.org/news/newsNotice.asp?ArticleID=4705. 115 We discuss time inconsistency issues further below in the subsection “Time Inconsistency and Imperfect 

Implementation.”
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Regardless, the discussion of the rule and the cost-benefit consideration do not address 

the potential perils of industry reliance on a single baseline model or of mandating models that 

assume future financial crises exhibit risk profiles similar to past crises. To the extent currently 

used models depend on the risk profiles of recent crises and future crises being substantially the 

same, the Margin Rule’s mandate may, by “fighting the last war,” leave the agency blind to the 

next one.116

Hedging, Risk Compensation & Collateral Transformation 

One consequence of imposing margin requirements is that firms must hold more margineligible assets than they would otherwise maintain. This is acknowledged by the Margin Rule’s 

cost-benefit consideration, and indeed motivates the calculation of the cost of collateral 

maintenance.117 But two implications stand out that remain relatively unexamined in the costbenefit consideration. 

One implication, acknowledged in interviews with staff, is that the cost of margin may

incentivize firms to alter their behavior in ways that undermine the systemic benefits of the 

rule.118 Firms may move away from uncleared swaps into other financial instruments with lower 

costs.

119 The cost-benefit consideration appears to treat this as a mitigation of the cost of the 

Margin Rule,120 but if the alternative financial instruments provide an inferior hedge of risk, the 

behavioral response may undermine the predicted systemic benefits of the rule. Or, firms may 

compensate for the lower returns on the margin collateral they hold by moving to higher-yield 

(but riskier) assets, elsewhere in their portfolio, a practice known as “risk compensation.”121

Firms responding to the margin requirements with potentially unobserved endogenous alterations 

to their capital structure may reverse the assumed leverage-reducing effects of the Margin Rule, 

undermining the asserted systemic benefits of the rule.

116 See, e.g., Jeremy C. Stein, Overheating in Credit Markets: Origins, Measurement, and Policy Responses, speech 

at the “Restoring Household Financial Stability after the Great Recession: Why Household Balance Sheets Matter” 

research symposium (Feb. 7, 2013), https://www.federalreserve.gov/newsevents/speech/stein20130207a.htm (“One 

is naturally inclined to look at data on short-term debt like repo, given its prominence in the recent crisis. But 

precisely because it is being more closely monitored, there is the risk that next time around, the short-term claims 

may take another form.”).

117 CFTC Margin Rule, 81 Fed. Reg. at 683-684. 118 A behavioral response to a regulation that diminishes the intended benefits of the regulation is sometimes called 

the Peltzman Effect. See Sam Peltzman, The Effects of Automobile Safety Regulation, 83 J. POL. ECON. 677 (1975).

119 We address some possible consequences below in the subsection “Incentivizing Cleared Products.” 120 CFTC Margin Rule, 81 Fed. Reg. at 684, 689-690. 121 See Craig Pirrong, Clearing and Collateral Mandates: A New Liquidity Trap?, 24 J. APPLIED CORP. FIN. 67 

(Winter 2012). (“Reducing leverage in certain trades does not necessarily reduce the total amount of systemically 

risky leverage in the system due to the ability of market participants to substitute alternative forms of leverage for 

that squeezed out of derivatives trade.”). 
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The other related implication is that firms need to hold more pledgeable, low-yield 

financial instruments than they otherwise would, and to do so may involve the exchange of 

riskier assets for safer ones acceptable as margin collateral.122 This is called “collateral 

transformation.”123 We have already discussed how, in times of severe stress, market participants 

may not have access to liquid markets to achieve their funding needs, but an additional point 

here is that the collateral transformation involved in financing margin payments has the potential 

to spread risk around the financial system in unexpected ways.124 In times of stress, the systemic 

effects of collateral transformation may be as problematic as if the riskier assets had been used as 

margin collateral with the counterparty in the first place. Indeed, a Federal Reserve Board 

governor noted a few years ago that collateral transformation “is exactly the kind of activity 

where new regulation could create the potential for rapid growth and where we therefore need to 

be especially watchful.”125

The cost-benefit consideration does not seriously engage with these potential unintended 

consequences of the Margin Rule. 

Redistribution of Default Risk

The cost-benefit consideration states that margin reduces counterparty risk by providing 

security to the non-defaulting party.126 This seems straightforward—the non-defaulting party’s 

otherwise unsecured claim to the benefits of the swap agreement are in effect converted to a 

secured claim, i.e., secured by the posted margin collateral. But that claim on a subset of the 

defaulting counterparty’s assets a fortiori leaves fewer assets for other creditors of the defaulting 

firm.127 Thus, the Margin Rule may, to some extent, merely transfer credit risk to other creditors 

by re-shuffling the order of compensation in the event of a firm bankruptcy. Whether or not this 

results in a net reduction in systemic risk in the financial system as a whole, as opposed to the 

uncleared swap market standing alone, is an issue not addressed by the cost-benefit calculation.

122 “In this case [when a dealer needs to convert non-cash collaterals collected from financial end users into cash to 

post variation margin], a CSE may use a repurchase agreement to turn non-cash collaterals into cash.” CFTC Margin 

Rule, 81 Fed. Reg. at 693. 123 See, e.g., Tracy Alloway, Wall Street’s Latest Idea, Financial Times (March 4, 2014), 

https://www.ft.com/content/409a3172-7203-11e2-886e-00144feab49a. 124 A salient example is the story of repo agreements involving mortgage-backed securities and credit default 

obligations. Gary B. Gorton and Andrew Metrick, Securitized Banking and the Run on Repo, 104 J. FIN. ECON. 425 

(2012).

125 Jeremy C. Stein, Overheating in Credit Markets: Origins, Measurement, and Policy Responses, speech at the 

“Restoring Household Financial Stability after the Great Recession: Why Household Balance Sheets Matter” 

research symposium (Feb. 7, 2013), https://www.federalreserve.gov/newsevents/speech/stein20130207a.htm. 126 CFTC Margin Rule, 81 Fed. Reg. at 681. 127 See Craig Pirrong, Clearing and Collateral Mandates: A New Liquidity Trap?, 24 J. APPLIED CORP. FIN. 67 

(Winter 2012).
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Incentivizing Cleared Products 

The international regulatory consensus stated that one reason to impose margin 

requirements on uncleared swaps is to incentivize a move toward central clearing.

128 CFTC staff 

confirmed in interviews that that was one purpose of the Margin Rule. The cost-benefit 

consideration says that the Margin Rule “may” incentivize a move to cleared swaps.129 Although 

there are many benefits of central clearing, we note two concerns underdeveloped by the costbenefit consideration. 

First, standardized swaps may not provide as efficient a hedge as an OTC swap tailored 

to a firm’s idiosyncratic risk profile. Standardized products might leave some residual, or 

“basis,” risk unhedged.130 Of course, a firm could then enter into a separate OTC swap to cover 

this residual risk, what some call a “differential swap” or “basis swap,” so perhaps there would 

be minimal effect on overall hedging by firms. But that doesn’t mean there are no costs or 

unintended consequences associated with incentivizing cleared over uncleared products. 

Economists we spoke with disagreed markedly over how much systemic risk would be posed by 

the residual risk in differential swaps, and consequently over whether margin requirements are 

needed for them. 

Second, although clearinghouses provide important benefits—e.g., simplifying the web 

of financial dependencies, facilitating netting and other operational efficiencies, acting as a 

guarantor of trades, reducing counterparty and liquidity risk,131 reducing settlement costs, etc.—

pushing more swaps into central clearing has significant systemic implications. In particular, 

central clearing “may also create a network of exposures that is more vulnerable to a single point 

128 BCBS/IOSCO, Margin requirements for non-centrally cleared derivatives (March 2015), at 3, 

http://www.bis.org/bcbs/publ/d317.pdf. The international framework and the agency acknowledge that only 

standardized derivatives are suitable for central clearing, leaving a substantial number of non-standardized swaps in 

the uncleared world.

129 CFTC Margin Rule, 81 Fed. Reg. at 689. As the Margin Rule notes, however, “it may not be the case that the 

regulatory minimum required initial margin on an uncleared swap will always be larger than the initial margin 

required on any related cleared swap as margining practices vary among DCOs.” CFTC Margin Rule, 81 Fed. Reg. 

at 656; see also Samim Ghamami and Paul Glasserman, Does OTC Derivatives Reform Incentivize Central 

Clearing?, Columbia Business School Research Paper No. 16-53 (July 26, 2016) (concluding that OTC reforms did 

not create a cost incentive in favor of central clearing), https://www.financialresearch.gov/workingpapers/2016/07/26/does-otc-derivates-reform-incentivize-central-clearing/. 130 RICHARD HECKINGER, IVANA RUFFINI, KIRSTIN WELLS, UNDERSTANDING DERIVATIVES: MARKETS AND

INFRASTRUCTURE 27-38 (2014). A footnote in the cost-benefit consideration recognizes that “this may result in basis 

risk given the standardization of these products,” but no analysis follows. CFTC Margin Rule, 81 Fed. Reg. at 689, 

fn. 398. 131 But see Darrell Duffie and Haoxiang Zhu, Does a Central Clearing Counterparty Reduce Counterparty Risk?, 

Rock Center for Corporate Governance at Stanford University Working Paper No. 46; Stanford University Graduate 

School of Business Research Paper No. 2022 (April 28, 2011), https://ssrn.com/abstract=1348343. 
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of failure.”132 As Ben Bernanke has stated, “[T]he flip side of the centralization of clearing and 

settlement activities in clearinghouses is the concentration of substantial financial and 

operational risk in a small number of organizations, a development with potentially important 

systemic implications.”133 Some commentators have suggested that, with the reliance on central 

counterparties (“CCPs”), we are replacing systemic risk from “too-big-to-fail” banks with 

systemic risk from “too-important-to-fail” CCPs.

134

At a minimum, the cost-benefit consideration should acknowledge the possible 

unintended consequences of incentivizing a move to cleared products, including any moral

hazard and adverse selection problems that may arise, particularly from the prospect of 

government bailouts of CCPs in a financial crisis.135

Interaction Effects

There may be important but unconsidered and unintended consequences of the Margin 

Rule due to the fact that market participants must comply with numerous other laws, regulations, 

orders of the CFTC and other domestic regulators, and of regulators in foreign jurisdictions. A 

reliable cost-benefit analysis should explore the possibility that such interaction effects between 

the Margin Rule and other legal authorities may augment the costs faced by market participants 

and diminish the risk-mitigating benefits of the rule.

One obvious source of potential interaction effects is imperfect international 

harmonization of margin rules.136 Minor-seeming disharmonies can impose unexpected costs on 

132 Samim Ghamami and Paul Glasserman, Does OTC Derivatives Reform Incentivize Central Clearing? Columbia 

Business School Research Paper No. 16-53 (July 26, 2016), https://www.financialresearch.gov/workingpapers/2016/07/26/does-otc-derivates-reform-incentivize-central-clearing/. See also J. L. Yellen, Interconnectedness 

and Systemic Risk: Lessons from the Financial Crisis and Policy Implications, remarks at the American Economic 

Association/American Finance Association Joint Luncheon (San Diego, California, 2013), 

https://www.federalreserve.gov/newsevents/speech/yellen20130104a.htm. 133 Chairman Ben S. Bernanke, Clearinghouses, Financial Stability, and Financial reform, speech at the 2011 

Financial Markets Conference (April 4, 2011), 

https://www.federalreserve.gov/newsevents/speech/bernanke20110404a.htm. An International Monetary Fund paper 

also concluded measures of systemic risk may potentially increase if large CCPs only clear certain standardized 

products, negatively affecting the net exposure they face. For example, if a firm has an “in the money” standardized 

contract and an “out of the money” non-standardized contract, the two positions offset one another if they are both 

on the firm’s books; however, the netting between the two contracts cannot take place if one of the contracts is sent 

to a CCP. Manmohan Singh, Collateral, Netting and Systemic Risk in the OTC Derivatives Market, IMF Working 

Paper No. 10/99 (April 2010), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1590712. 134 See, e.g., Froukelien Wendt, Central counterparties: addressing their too important to fail nature, 4(1) J. FIN.

MKT. INFRASTRUCTURES 59-84 (2005). 135 See Chairman Ben S. Bernanke, Clearinghouses, Financial Stability, and Financial Reform, speech given at the 

2011 Financial Markets Conference (April 4, 2011), 

https://www.federalreserve.gov/newsevents/speech/bernanke20110404a.htm. 136 As noted previously, the cost-benefit consideration found no “material differences in the costs and benefits 

discussed herein between foreign and cross-border swaps activities of CSEs and financial end users affected by the 
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firms.137 They can also undermine protections against systemic risk. When the Margin Rule was 

finalized in December 2015, then-Chairman Massad said:

[W]e must make sure that inter-affiliate transactions are not used as a loophole or 

as a means to escape the obligation to collect margin from third parties. This 

could occur, for example, if an affiliate in a jurisdiction that does not have 

comparable margin requirements enters into a swap with a third party without 

collecting margin, and then enters into an affiliate swap to transfer that risk. Our 

rule imposes a strong anti-evasion standard.138

The concern was that unmargined risk from a swap trade in a foreign jurisdiction involving a 

U.S. entity’s foreign affiliate could be imported into the U.S. via an unmargined inter-affiliate 

swap with a domestic U.S. affiliate. In May 2016, the CFTC finalized the Cross-Border Rule,139

which creates a regime for how the Margin Rule should apply to cross-border swap trades and, in 

particular, the circumstances in which compliance with a foreign jurisdiction’s margin 

requirements can substitute for compliance with the CFTC’s requirements in cross-border trades. 

The benefits of the domestic Margin Rule depend on the vitality of “a strong anti-evasion 

standard,” and in particular on the Cross-Border Rule and the comparability determinations that 

will be made pursuant to it. We discuss this topic further in the next subsection. 

Other potential sources of interaction effects include the policy choices of other 

regulatory agencies. In our discussion with CFTC staff, some dismissed procyclicality issues by 

asserting that liquidity crunches are properly dealt with by the Federal Reserve. An OCE 

economist who worked on the cost-benefit consideration, for example, stated that he was told not 

to include procyclicality concerns in the cost-benefit consideration, that the Margin Rule’s main 

objective is to mitigate counterparty risk and any potential monetary issues in a crisis are not a 

CFTC issue. While it is true that the Fed is responsible for liquidity injections when needed, it is 

nevertheless inappropriate to dismiss the increased procyclical effects of margin by assuming 

that the Fed will conduct policy optimally. Some commentators argue that the Fed made crucial 

rule,” CFTC Margin Rule, 81 Fed. Reg. at 682, but noted that “[a]s foreign jurisdictions put in place their own 

margin rules in the future, the existence of these rules may affect the costs and benefits of the Commission’s rules 

for foreign CSEs and financial end users.” Id. at 682, fn. 359. 137 Some market participants complain that a disparity in the timing requirement for collateral posting between the 

U.S. (T+1) and Europe (T+2) can result in additional funding costs. See Lukas Becker, Margin rule mismatch 

spawns new VM funding cost for buy side, Risk.net (March 29, 2017), 

https://www.risk.net/derivatives/4507761/margin-rule-mismatch-spawns-new-vm-funding-cost-for-buy-side. 138 Chairman Timothy Massad, Statement of Chairman Timothy Massad, Final Rule on Margin for Uncleared 

Swaps, U.S. CFTC Speeches & Testimony (December 16, 2015), 

http://www.cftc.gov/PressRoom/SpeechesTestimony/massadstatement121615d. 139 Margin Requirements for Uncleared Swaps for Swap Dealers and Major Swap Participants—Cross Border 

Application of the Margin Requirements, 81 Fed. Reg. 34818 (May 31, 2016).
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policy mistakes in 2008 that exacerbated the financial crisis and deepened the recession.140

Procyclical effects of margin may magnify a policy error by the Fed in a time of crisis. 

These are just two of many potential interaction effects. The cost-benefit consideration 

recognizes the possibility of regulatory arbitrage and stresses the need for tight accordance with 

Prudential Regulators’ rules as well as with international regulators’ regimes. Yet it does not 

elaborate on the likely effects of the dissonant treatment of inter-affiliate margin by the CFTC on 

the one hand and the Prudential Regulators and certain foreign regulators on the other. Nor does 

the cost-benefit consideration assess how deviations from the established norms of the 

international framework, inconsistency in cross-border application of the standards created by 

the Margin Rule, and interaction with the multitude of other laws and regulations on the books 

will affect the asserted systemic risk-mitigating benefits of the rule.

Time Inconsistency and Imperfect Implementation 

A rule is only as good as its implementation and enforcement, and the consideration of 

costs and benefits is only as good as the accuracy of its assumptions about future implementation 

and enforcement. The CFTC will make numerous post-Margin Rule decisions that will affect the 

operation of the rule. If future decision-makers within the CFTC have opinions regarding the 

proper application of the Margin Rule that differ from what was assumed in the drafting of the 

rule and in the cost-benefit consideration, the costs and benefits of the rule may be dramatically

different from what was originally expected. This is an example of what is called “time 

inconsistency.”141

This is not merely an abstract point—decisions that affect the underlying cost-benefit 

analysis and efficacy of the Rule have already come up in the context of a cross-border 

application of the Margin Rule. As noted in the previous section, when the Margin Rule was 

passed, Chairman Massad asserted that the Margin Rule “imposes a strong anti-evasion 

standard” ensuring that “inter-affiliate transactions are not used as a loophole or as a means to 

escape the obligation to collect margin from third parties.” But less than a year later, several 

members of the Margin Rule rulemaking team, among others at the CFTC, were questioning 

whether that “strong anti-evasion standard” had survived, in light of the Commission’s Japanese 

140 See, e.g., Scott Sumner, The Fed and the Great Recession, Foreign Affairs (May/June 2016); David Beckworth 

and Ramesh Ponnuru, Subprime Reasoning on Housing, The New York Times (Jan. 27, 2016); Matthew O’Brien, 

How the Fed Let the World Blow Up in 2008, The Atlantic (Feb. 26, 2014); Binyamin Applebaum, Fed Misread 

Crisis in 2008, Records Show, The New York Times (Feb. 21, 2014). 141 Time inconsistency refers to situations where a decision-maker has different preferences or faces different 

incentives regarding the making of a commitment at one time and the keeping of that commitment at some time in 

the future, leading to inconsistent behavior. See Finn E. Kydland, Edward C. Prescott, Rules Rather than Discretion: 

The Inconsistency of Optimal Plans, J. POL. ECON. 85(3):473-492 (June 1977).
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comparability determination of September 2016. That determination found Japan’s margin 

regime “comparable” on 9 out of 10 factors.

142 But several Margin Rule team members143

believed strongly that the determination was wrong on several accounts, that it was foreordained, 

that the supporting analysis made factual, analytical, and interpretive errors,144 and that the 

determination “leaves a big hole” in the Margin Rule, not only putting domestic U.S. firms at a 

competitive disadvantage but more importantly enabling risk to be imported into the U.S. 

financial system via the precise “loophole” the Chairman warned against.145

Though we express no judgment on the substantive correctness of the Commission’s 

Japanese comparability determination, our review certainly suggests that the process for making 

the comparability determination involved a level of scrutiny inconsistent with what was 

anticipated by the rulemaking team and cost-benefit consideration when the rule was written.146

A careful cost-benefit consideration should take into account such time inconsistency and 

other sources of uncertainty about future implementation, such as interpretive ambiguity147 and 

142 CFTC, Comparability Determination for Japan: Margin Requirements for Uncleared Swaps for Swap Dealers and 

Major Swap Participants, 81 Fed. Reg. 63376-95 (September 15, 2016). “Japan does not require collection or 

posting of initial or variation margin between consolidated affiliates. The Commission’s rules require collection and 

posting of variation margin and, in some cases, collection of initial margin between consolidated affiliates.” CFTC 

Fact Sheet, Comparability Determination for Japan Uncleared Swap Margin Rules for Substituted Compliance 

Purposes, (September 8, 2016). 143 We asked each member of the rulemaking team for their opinion on the outcome of the Japanese determination. 

No member of the team who expressed an opinion to us supports the determination.

144 Rulemaking team members who object to the comparability determination argue variously that Japan’s treatment 

of non-affiliated third-party custodianship, timing of settlement, and non-netting and non-segregation jurisdictions 

should have resulted in the Japanese rule being found not comparable in more areas. We additionally note that 

Commissioner Bowen dissented from the Commission’s comparability determination. Commissioner Sharon Y. 

Bowen, Dissenting Statement Re: Comparability Determination for Japan: Margin Requirement for Uncleared 

Swaps for Swap Dealers and Major Swap Participants (September 8, 2016). 145 One rulemaking team member wrote in an email at the time of the Japanese comparability determination that “it 

would lead to a significant loophole, as most consolidated financial groups would book their swaps with 

counterparties in non-netting and non-segregation jurisdiction[s] (e.g., China) to their Japanese affiliate.” The 

implication is that, because of the comparability determination, a subsequent swap between a U.S. CSE and its 

affiliate in Japan would not require initial margin and so the unmargined counterparty risk from the original swap 

would effectively be imported into the U.S. financial system.

146 The most perplexing of the peculiar facts surrounding the process for the comparability determination was the 

lack of inclusion of the rulemaking team, all of whom were still at the CFTC. 147 On the eve of the public hearing and final vote on the CFTC’s Japanese comparability determination, the Office 

of General Counsel disagreed with drafted statements the Chairman intended to make at the public hearing regarding 

the operation of the Margin Rule and Cross-Border Rule in light of the comparability determination. If the Chairman 

and the author of the comparability determination can have an understanding of the rules that differs markedly from 

that of the Office of General Counsel, it seems likely there will be future interpretive disagreements among market 

participants seeking to comply with the rules and regulators seeking to enforce the rules.
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principal-agent interest divergence.148 Future implementation will be imperfect, potentially 

affecting costs and undermining asserted benefits. 

The foregoing subsections provide a sampling of issues that make regulatory activity 

more complicated and far less straightforward than the cost-benefit consideration presents it to 

be. While we do not venture a guess as to what a robust economic analysis would conclude about 

the relative costs and benefits of the Margin Rule, we do believe such an analysis is vital when 

justifying the rule to the public, the marketplace, and Congress. In the next section, we turn to 

the inadequacy of the CFTC’s data infrastructure, which further exacerbates the ability of the 

CFTC to perform a rigorous economic treatment of costs and benefits. 

Data & Quantitative Analysis

The financial system is highly complex, and its daily operations produce large amounts of 

information. The CFTC would undoubtedly benefit from using quantitative analysis in support of 

its rulemaking and cost-benefit efforts. But in the absence of transparent, reliable, and readily 

available data, quantitative analysis has no purchase—estimating and weighing the costs and 

benefits of a proposed policy change becomes a wholly qualitative endeavor. Without a baseline 

understanding of pre-change institutions and activities, post-change measurement of the actual 

policy effects is likewise difficult.149 Furthermore, where systemic risk reduction relies not 

simply on the changes in market behavior induced by a rule but also on ongoing regulatory 

oversight by the CFTC, inadequate data can undermine the oversight task and cripple the entire 

regime.

Our interviews of CFTC staff make clear that a lack of adequate swaps data frustrated 

attempts to understand and quantify the economic consequences and effectiveness of the Margin 

Rule and its possible alternatives. In numerous interviews, members of staff lamented the low 

quality and quantity of swaps data and were disappointed by the unwillingness or slowness of 

CFTC leadership to take action to remedy the situation. The result, in the case of the Margin 

Rule, was a rulemaking effort some characterized as akin to flying blind, and a cost-benefit 

consideration almost devoid of quantitative analysis. Among other examples, the various 

thresholds found in the rule, such as the $8 billion Material Swap Exposure threshold, were set 

arbitrarily, rather than pursuant to numerical analysis.

148 As noted above, the CFTC has outsourced initial margin model review to the National Futures Association. The 

NFA has different institutional incentives from the CFTC. The cost-benefit consideration does not address the 

adverse consequences that may stem from a divergence of interests between a principal and its agent.

149 Further exacerbating the issues surrounding the absence of symmetric analysis discussed above.
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Documentary evidence corroborates staff’s opinion about a general institutional failure to 

pursue high data quality in support of the agency’s mission. A June 2016 Division of Clearing 

and Risk (“DCR”) internal report on uncleared swaps data, for example, states that DCR’s stresstesting program is significantly hampered due to the poor quality of uncleared swaps data.150 The 

report discusses uncleared swaps data quality for five asset classes and finds only two to be of 

good quality; the other three were found to be “essentially unusable.”151 The proportion of 

missing positions ranged from 22% to 88%. Other problems included: outdated mark-to-market 

valuations; illogical or impossible values; incorrect product classifications; incorrect cleared 

status; and an unworkable mish mash of firm ID formats.152 The DCR report concludes by noting 

that uncleared risk “has remained mostly opaque,” and that trillions of dollars of notional 

positions are “unpriceable” and represent an “unmeasurable amount of risk.”153

This situation appears to stem from a failure of leadership at the CFTC. According to the 

same DCR report, “ongoing oversight of SDR data quality within DCR has been limited . . . and 

widespread errors have been allowed to persist for years. . . . [R]eporting requirements did not 

specify sufficient fields for pricing and did not define field attributes . . . .”154 In response to 

criticism of the agency’s data efforts, then-CFTC Chairman Massad said that the CFTC thought 

the industry would, in response to reporting requirements, come up with data standards itself.155

The effects of poor data quality go beyond the Margin Rule, because the Margin Rule 

operates in conjunction with other rules, such as the clearing mandate and forthcoming capital 

requirements. The lack of transparency into systemic risk in the uncleared world therefore 

undermines the entire regulatory project of which the Margin Rule is one component. For 

example, we were told that DCR currently does periodic stress-testing and related surveillance 

activities in the cleared space—but most of the firms that participate in the cleared space also 

participate in the uncleared space. The agency’s blindness to the risks associated with a 

particular firm’s uncleared positions leaves the agency hamstrung when attempting to monitor 

the swaps market in a holistic manner.

150 CFTC, DCR Uncleared Data Quality Report (2016) (on file with OIG). 151 Id. 152 Firm IDs appear in multiple formats, and the agency lacks a complete firm ID table. 153 Id. 154 Id. 155 “But building an efficient system to collect and analyze data from this market is an enormous undertaking, and 

there is more work to do. Currently, for example, there is considerable variation in how different participants report 

the same fields to SDRs, and how the SDRs themselves transmit information to the CFTC. When the rules were first 

written, the Agency purposely didn’t prescribe exactly how each field should be reported – for a number of reasons. 

First, when the agency issued the reporting rules, we didn’t yet have any data to inform our views. And second, we 

expected the industry to develop standardized terms. That, unfortunately, did not happen.” Chairman Timothy 

Massad, Testimony Before the U.S. House Committee on Agriculture, U.S. CFTC Speeches & Testimony (February 

10,2016), http://www.cftc.gov/PressRoom/SpeechesTestimony/opamassad-41. 
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It seems inexplicable that a regulatory agency would impose data-reporting obligations 

on industry but fail to coordinate with industry to establish the data and formats needed to 

facilitate the regulatory program. But that appears to have happened, leaving the CFTC unable to 

rely on reported data for quantitative analysis in support of rulemakings like the Margin Rule. 

The CFTC can, if it chooses, make ad hoc requests to industry for data that would facilitate 

rulemakings, as we were informed was done for the Appropriate Minimum Block Sizes

rulemaking.156 An important caveat is that these types of data requests must be thought of at the 

outset of the rulemaking process. Nothing like this was done for the Margin Rule, which left the 

rulemaking team and its economists with an unusable data set, precluding any meaningful 

quantification in the cost-benefit consideration.157

RECOMMENDATIONS

1: The CFTC Should Include a Thorough, Objective, and Rigorous Economic Analysis, 

Adopting Symmetric Assumptions about Alternative Policy Regimes and Relying on 

Quantitative Analysis Where Possible

When considering the costs and benefits of a rule, we recommend the CFTC first 

establish a baseline view of market behavior; specify in detail the market failure that justifies the 

proposed intervention; and consider whether the market failure stems, in whole or in part, from

existing policies or regulations. We further recommend the CFTC apply assumptions 

symmetrically and consistently across all considered policy options, including retaining the 

status quo; analyze, and quantify where possible, the likely direct and indirect effects and 

potential unintended consequences of the rule; and, to the greatest extent possible, clearly state 

expectations and estimates regarding the response of market participants to the passage of the 

new rule. Issues not amenable to analytical scrutiny, due to data or other institutional constraints, 

should be highlighted; issues not amendable to quantification should still be qualitatively 

examined with equal rigor; and cost-benefit analysis should be frank in presenting what might go 

wrong with a given rule. 

156 CFTC, Final Rule, Procedures to Establish Appropriate Minimum Block Sizes for Large Notional Off-Facility 

Swaps and Block Trades, 78 Fed. Reg. 32866 (May 31, 2013).

157 The importance of thinking about data needs at the outset is of utmost importance. For example, even where 

existing SDR data is “clean,” it can be of limited usefulness where the data consist of mere notional values, which 

provide little insight into the level of risk exposure in the market. Two counterparties may have millions of dollars in 

notional value within various swap agreements with each other, but the amount at risk may be a tiny fraction of the 

notional.
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We further recommend that every rule be subjected to periodic retrospective analysis, to 

gauge whether the rule is having the intended effect at reasonable cost. Even where a rule has 

immediate and clear salutary benefits, periodic assessments retain value—the efficient operation 

of markets is dynamic and ever-changing, requiring reexamination and verification of governing 

rules. A thorough cost-benefit analysis that establishes a baseline and examines potential 

consequences in a systematic manner facilitates such retrospective reviews, and in turn, 

retrospective reviews help calibrate and improve future cost-benefit analyses. 

We further believe that rulemaking teams would benefit from greater investment in 

economic knowledge at the CFTC. We recommend the CFTC shift its personnel investment 

toward more economists and analysts in the business divisions, and establish the Office of the 

Chief Economist (“OCE”) as a source and repository of juried economic research fostering 

greater understanding of CFTC-regulated markets. The importance of a well-functioning OCE 

that focuses on long-term, peer-reviewed, published economic research cannot be overstated—

every issue we explored in our discussion can be a topic of long-term research. OCE should 

encourage and nurture research, not only by its own staff but by outside economists, via calls for 

papers, hosted symposia, etc., all with the purpose of edifying the agency and the public on 

issues related to the regulatory mission. A productive OCE can provide a broad and deep 

reservoir of knowledge and understanding about financial markets that rulemaking teams and 

cost-benefit analyses can draw on.158 

2: The CFTC Should Focus Resources on Improving Data Quality, Emphasizing Productive 

Collaboration Among the Business Divisions, OCE, and ODT, to Improve Cost-Benefit 

Analysis of New Rules

Our recommendations regarding cost-benefit analysis depend on the CFTC’s ability to 

understand the markets it regulates. We therefore recommend the CFTC focus on, and provide 

institutional support for, improving its entire data infrastructure, including recognition of data 

needs, data reporting mandates on industry, data acquisition standards and formats, data storage 

and processing, data quality assurance, and data processing and analysis. We understand the 

CFTC is pursuing organizational and other changes, so we limit our recommendation to actions 

that would specifically improve the data available for cost-benefit analysis.

158 We have previously highlighted OCE’s insufficient focus on long-term economic research and its potential 

screening of politically sensitive topics. CFTC OIG, Follow-up Report: Review of the Commodity Futures Trading 

Commission’s Response to Allegations Pertaining to the Office of the Chief Economist (January 13, 2016) (“FollowUp OCE Report”). We continue to hear similar concerns from OCE staff. We note that CFTC Management at the 

time of our Follow-up OCE Report responded that our “agenda” of long-term economic research within OCE is 

“impractical.” CFTC, Management Response to the Draft IG [Follow-Up OCE Report] (December 18, 2015), at 2.
U.S. Commodity Futures Trading Commission UNREDACTED

Office of the Inspector General and CONFIDENTIAL

31 

We recommend rulemaking teams focus early in the rulemaking process on identifying 

the kinds of data needed to establish a baseline understanding of the market and to analyze the 

effects of potential policy choices. We recommend that rulemaking teams then prioritize 

acquisition of such data by the most appropriate means at their disposal, including by requests to 

market participants and via well-constructed industry surveys.159 And we further recommend 

continued identification and gathering of data that would aid in retrospective analysis of rule 

efficacy.160

With proactive and effective data-gathering, rulemaking teams can rely on more 

quantitative and analytical guidance during their rule-development efforts. Moreover, the costbenefit analysis enabled by data availability will be more verifiable and reproducible, enabling a 

richer discussion within the CFTC and with Congress, the public, and the marketplace. 

CONCLUSION

The Margin Rule, and other regulatory rules, impose significant costs on our financial 

institutions and markets. The public deserves robust economic analysis that determines whether 

the costs borne by society are outweighed by the actual benefits that will materialize, not the 

purported benefits intended by the rule-makers. The CFTC should provide a thorough, objective, 

and rigorous analysis of costs and benefits, with quantification where possible, to justify its 

rulemakings. 

159 We believe the CFTC’s economists and analysts are capable of identifying the data required to support an 

effective regulatory regime.

160 Identifying what data will be needed to assess the full effects of a rule is an important reason why the cost-benefit 

consideration should anticipate and ponder indirect effects and potential unintended consequences of the rule.
U.S. Commodity Futures Trading Commission UNREDACTED

Office of the Inspector General and CONFIDENTIAL

32 

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1

CFTC Management Response to the OIG Report

Dated April 6, 2017 Regarding a Review of the Cost-Benefit 

Consideration for the Margin Rule for Uncleared Swaps

Introduction 

CFTC Management is pleased to have the opportunity to review and respond to the 

CFTC’s Office of the Inspector General’s (OIG) review of the cost-benefit discussion in the 

CFTC’s margin rule for uncleared swaps (hereafter “Report”). The Commission published the 

final margin rule on January 6, 2016 (hereafter “Margin Rule”).1 The following management 

response briefly describes the OIG’s Report, and then responds to the OIG’s concerns and 

recommendations. 

Summary of the OIG Report 

A. The OIG indicated that the Commission’s economic analysis for the Margin Rule could 

have been more robust. 

The OIG remarked that the Commission had discussed most of the nine economic areas 

that the OIG identified as relevant topics for the Margin Rule’s cost-benefit discussion. The 

OIG, however, added that the Commission should have elaborated and suggested that the 

discussion should have been more nuanced. The nine economic areas were: (1) Systemic Risk; 

(2) Market Liquidity; (3) Procyclicality; (4) Homogenized Risk; (5) Hedging, Risk 

Compensation & Collateral Transformation; (6) Redistribution of Default Risk; (7) Incentivizing 

Cleared Products; (8) Interaction Effects; and (9) Time Inconsistency and Imperfect 

Implementation.

2

1 81 Fed. Reg. 636 (Jan. 6, 2016). The Commission’s initial proposed margin requirements were published on April

28, 2011, at 76 Fed. Reg. 23732. The Commission re-proposed margin requirements in response to and in 

consideration of international margin standards in September 2014. 79 Fed. Reg. 59898 (Oct. 3, 2014). 2 Each area is identified as an italicized sub-section in the OIG Report. See Report at pp. 15-27.
2

B. The OIG commented that the swaps data reported to the Commission, and the 

Commission’s data collection processes are flawed. 

The OIG remarked that the Commission has been “hamstrung when attempting to 

monitor the swaps market in a holistic manner” because the Commission has received poorquality, error-ridden data from regulated entities in the cleared and uncleared swaps markets. 3

 

The OIG also said that the Commission appeared to lack the commitment to rectify the data 

problems. The OIG added that in the interim the Commission could make ad hoc data requests 

to industry for future rulemakings. 

C. The OIG offered two recommendations to the Commission for improving the cost-benefit 

discussions for future rulemakings and swaps data quality. 

The first OIG recommendation has three components. The first component focuses on 

the execution of future rulemakings; it recommends that the Commission clearly specify the 

market failure that the rulemaking addresses and it identifies several elements that the economic 

analysis supporting the rulemaking should incorporate. A second component recommends that 

the Commission perform periodic retrospectives to monitor the cost-effectiveness of finalized 

rules. The third component counsels the Commission to invest in retaining more economists and 

analysts, and to establish the Office the Chief Economist (“OCE”) as a source of long-term, peerreviewed, published research that fosters a greater understanding of CFTC-regulated markets.

The second OIG recommendation centers on data. The OIG recommends that the 

Commission provide institutional support for improving its entire data infrastructure, and 

recommends that Commission rulemaking teams determine early in the process the types of data 

necessary for setting baselines and assessing the effects of policy choices. In addition, the OIG 

recommends the continued collection of data for retrospective reviews of rules. 

3 Report at p. 28.
3

CFTC’s Management Response 

A. Legal Context 

The OIG specifies that its analysis in the report “does not make any claims with respect 

to the legal sufficiency of the CFTC’s cost-benefit consideration.”4 Similarly, CFTC 

Management’s Response in Section B should not be viewed as an assessment or description of 

the CFTC’s legal obligations. Notwithstanding the Report’s disavowal of discussing legal 

issues, CFTC Management notes that the Report’s recommendations differ in at least two 

important respects from the CEA’s requirements.

The first difference relates to the scope of the statutory cost-benefit requirement, set forth 

in Section 15(a) of the CEA. Under that Section, the CFTC must, before issuing a regulation, 

“consider the costs and benefits of the action of the Commission.”5 The phrase “action of the 

Commission” is an important limitation. Under controlling case law, it means that the 

Commission must consider the costs and benefits of the actions over which it has discretion.6 

The Report appears to suggest that the Commission should also consider the costs and benefits of 

actions commanded by Congress.7 That is not a legal requirement. Courts, including the D.C. 

Circuit, have explained that agencies are “not empowered” to reconsider those Congressional 

judgments.8

The second difference relates to the role of quantitative analysis. CFTC Management

agrees as a policy matter with the Report’s emphasis on the importance of data in Commission 

4 Report at 1 n.5. 5 7 U.S.C. § 19(a).

6 Nat’l Ass’n of Mfrs. v. SEC, 748 F.3d 359, 370 (D.C. Cir. 2014). 7 Report at 13.

8 Public Citizen v. Fed. Trade Comm’n, 869 F.2d 1541, 1557 (D.C. Cir. 1989); see also Nat’l Ass’n of Mfrs., 748 

F.3d at 370 (holding that the agency correctly did not “second-guess[]” through cost-benefit analysis Congress’s 

determination “that the rule’s costs were necessary and appropriate in furthering the goals” of the legislation); 

SIFMA v. CFTC, 67 F.Supp.3d 373, 431 (D.D.C. 2014) (holding that the CEA did not require “the CFTC to 

reconsider whether it was ‘necessary’—or even desirable” to apply swaps regulations to overseas activities, because 

“Congress made that determination” and “agencies surely do not have inherent authority to second-guess Congress’ 

calculations”).
4

rulemaking. The more relevant quantitative data the Commission can collect and use, the better 

the Commission can tailor its regulations to serve the public interest. 

CFTC Management’s commitment to such quantification and rigor, however, does not 

stem directly from the CEA. The D.C. Circuit has so held.9

 Indeed, courts recognize that 

quantification is not always possible.10 In those situations and others, an agency subject to a 

cost-benefit requirement is empowered to proceed on the basis of other reasoned, qualitative

judgments.11

B. Response to Critiques

The OIG’s critiques of the Margin Rule indicate that the Commission’s efforts to 

integrate meaningful economic analysis in its rulemakings’ cost-benefit discussions have 

improved since the first Dodd-Frank related rules were proposed in 2010.

12 As illustrated 

throughout the Margin Rule, the Commission addressed many of the areas the OIG highlighted 

in the Report’s Economic Analysis section.

13 We believe that the CFTC Margin Rule 

demonstrates that the Commission is committed to engaging in a thorough consideration of the 

 9 Inv. Co. Inst. v. CFTC, 720 F.3d 370, 379 (D.C. Cir. 2013) (holding that the CEA contains “no such requirement” 

and upholding a largely qualitative consideration of costs and benefits). 10 Id. (“[T]he law does not require agencies to measure the immeasurable.”) 11 Chamber of Commerce of U.S. v. SEC, 412 F.3d 133, 142 (D.C. Cir. 2005) (“The [SEC’s] decision not to do an 

empirical study does not make that an unreasoned decision.”); BellSouth Corp. v. FCC, 162 F.3d 1215, 1221 (D.C. 

Cir. 1999) (“When ... an agency is obliged to make policy judgments where no factual certainties exist or where 

facts alone do not provide the answer, our role is more limited; we require only that the agency so state and go on to 

identify the considerations it found persuasive”). 12 The Commission began proposing Dodd-Frank related rulemakings in the summer of 2010. See

< http://www.cftc.gov/LawRegulation/DoddFrankAct/Dodd-FrankProposedRules/DoddFrankProposedRules >.

In April 2011, the OIG began investigating the Commission’s efforts to discuss costs and benefits 

associated with Commission rulemakings. See CFTC OIG, An Investigation Regarding Cost-Benefit Analyses 

Performed by the Commodity Futures Trading Commission in Connection with Rulemakings Undertaken Pursuant 

to the Dodd-Frank Act (Apr. 15, 2011), and CFTC OIG, A Review of Cost-Benefit Analyses Performed by the 

Commodity Futures Trading Commission in Connection with Rulemakings Undertaken Pursuant to the Dodd-Frank 

Act (Jun. 13, 2011). 13 The OIG stated that:

we wish to emphasize that the rulemaking team members and cost-benefit contributors recognized 

the many issues we raise, but were hampered by significant data limitations and a lack of 

institutional commitment to the identification and quantification of costs and benefits, thus 

depriving the Margin Rule of the kind of analysis one might expect from an economic regulatory 

agency.

Report at p. 13.
5

rule’s costs, benefits, and economic outcomes. CFTC Management also concurs with the OIG 

that the CFTC, as a market regulator, should include economic analysis as an integral part of the 

CFTC’s policy decisions. 

We, however, find the OIG’s suggestion that rulemakings should assess “time 

inconsistency” and “imperfect implementation” for the purposes of cost-benefit discussions 

curious.14 The OIG seems to advise that the Commission should examine hypotheticals that 

involve applying a rule imperfectly or in an unintended manner to a scenario and estimate 

hypothetical, rather than potential, costs and benefits, as well as debate the efficacy of a rule.15 It 

is feasible for the Commission to acknowledge in its rulemakings that the costs and benefits 

might change if a rule is implemented in an unexpected manner in the future, and, then, ask for 

public comment. CFTC Management believes, however, that it would be prudent rulemaking to 

acknowledge and anticipate reasonable and foreseeable outcomes.16 This approach will enable 

the Commission to better inform the public and market participants of likely costs, benefits, and 

economic consequences of its rules, and give affected parties the opportunity to offer meaningful 

comments.

The OIG Report highlights the Japan comparability determination as an example of the 

Commission’s failure to explore “time inconsistency” and “imperfect implementation” as part of 

the Margin Rule’s costs and benefits.17 The OIG also refers to the rulemaking team members’ 

dissatisfaction with the determination as support that the Margin Rule has a loophole caused by 

14 Report at p. 25-26. 15 Id. at 26 (The OIG commented that: “A careful cost-benefit consideration should take into account such time 

inconsistency and other sources of uncertainty about future implementation, such as interpretative ambiguity and 

principal-agent interest divergence”). 16 For example, in the Margin Rule’s NPRM, the Commission stated that it is “seeking comments on the costs and 

benefits of not fully harmonizing its rules with those of the prudential regulators. Commenter are encouraged to 

discuss the operational difficulties and to quantify, if practical.” 79 Fed. Reg. at 59925. 17 Report at p. 25-26. 
6

the Japan comparability determination.

18 We recognize that rulemakings and other Commission 

decisions are informed and honed by discussions between staff, the public, and market 

participants. Yet, as part of the administrative process, the Commissioners vote upon and issue 

the statements of the Commission. In the situation here, the Japan comparability determination 

was voted on by the same three Commissioners who voted for the Margin Rule. 

Beyond the Margin Rule, CFTC Management is taking steps to be more expansive and 

address alternative economic scenarios in the Commission’s rulemakings. Toward that goal, 

CFTC Management will continue to rely on the notice-and-comment phase of the rulemaking 

process, among other things. In our view, the rulemakings show that with more in-depth costbenefit discussions, the Commission has been able to ask targeted questions on potential 

economic consequences as well as questions regarding quantified costs during the proposal 

stage.19 In some cases, this has led to more fulsome discussions of costs, benefits, and economic 

consequences of rulemakings, in part, because of the public’s participation and responsive 

comment letters. CFTC Management believes that public comments add to the richness of the 

Commission’s examination of its rules’ costs, benefits, and economic consequences. 

In addition, the Commission engages in discussions with academia and industry via 

Commission advisory committees, such as the Market Risk Advisory Committee and Energy & 

Environmental Markets Advisory Committee, and through seminars presented by academics to 

18 Report at p. 26 (“Though [the OIG] express no judgment on the substantive correctness of the Commission’s 

Japanese comparability determination, our review certainly suggest that the process for making the comparability 

determination involved a level of scrutiny inconsistent with what was anticipated by the rulemaking team and costbenefit consideration when the rule was written.”)

19 See, e.g., NPRM for Regulation for Automated Trading, 81 Fed. Reg. 85334 (Nov. 25, 2016) at 85372, 85374,

85377 (Commission posed questions regarding costs and benefits), and NPRM for Clearing Requirement 

Determination Under Section 2(h) of the CEA for Interest Rate Swaps, 81 Fed. Reg. 39506 (Jun. 16, 2016) at 39528-

39534 (Commission included questions regarding costs and benefits).
7

staff.

20 The discussions are not confined to the parameters of the rulemaking process. Because 

of that fact, CFTC Management believes that committee meetings and academic seminars are 

useful for studying and understanding Commission-regulated markets as well as for informing 

policy decisions in general.

CFTC Management agrees with the OIG recommendation that the Office of the Chief 

Economist should focus on long-term, peer-reviewed, published economic research. OCE 

should be the focal point of long-term projects, by its own staff and in collaboration with outside 

economists, in order to edify the agency and the public on issues related to the mission of the 

CFTC. The economic analysis produced by OCE should be geared toward providing a deeper 

understanding of the futures and swaps markets, thus providing the Commission with a better 

understanding of the relevant facts and the trade-offs related to policy choices. Such analysis 

goes beyond a simple accounting of the prices of current costs and benefits, and incorporates 

rigorous analyses of market participant behavior, including their responses to costs and 

incentives. Relevant analyses should not be limited to a discussion within a particular 

rulemaking document but should reflect continuous, ongoing research activity. 

The Commission’s commitment to economic analysis is further evidenced by its FY 2018 

Budget Request where it asked for 15 additional employees for OCE.

21 Additional staff and 

funds will enable OCE to develop economic modeling and econometric capabilities that are 

based on data and relevant for analyzing CFTC-regulated markets, participants, and products.22 

The Commission specifically expressed that at the requested budget level, it expects “to conduct 

20 Information about the advisory committees is located at: 

< http://www.cftc.gov/About/CFTCCommittees/index.htm >. 21 Under the FY 2017 Continuing Resolution, OCE operates with 12 full time equivalents. For FY 2018, the 

Commission is seeking to operate OCE with 27 full time equivalents. See CFTC FY 2018 Budget Request at p. 7, 

located at < http://www.cftc.gov/idc/groups/public/@newsroom/documents/file/cftcbudget2018.pdf >. 22 See generally CFTC FY 2018 Budget Request at p. 30, located at 

< http://www.cftc.gov/idc/groups/public/@newsroom/documents/file/cftcbudget2018.pdf >.
8

data-driven studies of futures and swaps markets in order to inform the Commission and the 

public on a variety of topics, such as descriptive studies of derivatives markets, economic 

assessments of their functioning, analyses of the potential effects of policy choices, risk 

assessments pertaining to liquidity, financial stability and CCPs, etc.”23 With greater expertise 

and increased resources, the Commission will be able to leverage the new data sources for costbenefit discussions in its rulemakings and aid OCE in providing economic analysis and advice to 

the Commission and the public.

CFTC Management also agrees with the OIG that a strong data infrastructure will 

improve data quality for cost-benefit discussions in rulemakings and for the agency generally. 

Since 2013, when swaps market participants began reporting, swap data has improved.

24 CFTC 

Management understands fully the quality concerns raised by the OIG, and has worked with 

market participants to improve data quality. One product of the Commission’s efforts is the June 

2016 amendment to the rules for cleared swap transaction data reporting.

25 As explained in the 

release, the Commission acknowledged its data problems, and made a serious effort, directed 

especially at cleared swaps, to fix data reporting problems by amending its Part 45 rules, i.e., 

reporting to swap data repositories:

As part of the Commission’s ongoing efforts to improve swap transaction 

data quality and to improve the Commission’s ability to utilize the data for 

regulatory purposes, Commission staff has continued to evaluate issues in 

connection with reporting under part 45, including those related to cleared 

swaps in particular. To this end, Commission staff formed an 

interdivisional staff working group (“IDWG”) to identify, and to 

recommend resolutions to, reporting challenges associated with certain 

 23 Id. 24 “On January 1, 2013, certain swap market participants began reporting new and historical swap data to SDRs 

pursuant to 17 CFR Part 45, and the Commission began the process of analyzing these new data and incorporating 

them into the CFTC Swaps Report.” < http://www.cftc.gov/MarketReports/SwapsReports/index.htm >. 25 On June 27, 2016, the Commission finalized changes to reporting rules under 17 C.F.R. Part 45. See Amendments 

to Swap Data Recordkeeping and Reporting Requirements for Cleared Swaps, 81 Fed. Reg. 41736. 
9

swaps transaction data recordkeeping and reporting provisions, including 

the provisions adopted in the Final Part 45 Rulemaking.26

Commission staff also works frequently with swaps data in conducting ongoing research 

projects. Hence, a commitment to research projects that inform the Commission and the public 

about CFTC-regulated markets also informs those interested parties about impactful 

improvements to the data that will prove useful in evaluating policy choices. For example, the 

Commission issues a weekly report using data submitted to swap data repositories.27 Based on 

staff research experience with the swaps data, the Commission utilized this Weekly Swaps 

Report, and the data underlying it, to estimate the funding costs of the initial margin requirement 

in the Margin Rule. In particular, the Commission was able to relate the then-current swap data 

to the results of the BCBS-IOSCO survey that was relied upon in the October 2014 NPRM for 

the Margin Rule.28

Another example of Commission staff working with data includes efforts related to the

Swap Dealer De Minimis Exception Final Staff Report. To produce the De Minimis Report, staff 

culled-out, assessed, and analyzed data submitted to CFTC-registered swap data repositories

during specific time periods. As part of that process, staff identified aspects of the data that were 

problematic and developed strategies for interpreting the reported data appropriately. For 

example, staff noted in the De Minimis Report that data improved during the time between the 

preliminary report review period and the final report review period. The data showed that 

market participants had more consistently started including LEIs with transactions reported to 

SDRs.

29 Commission staff also has used data reported by clearinghouses, large traders, and 

26 Id. at 41737. 27 The reports are located at: < http://www.cftc.gov/MarketOIG Reports/SwapsOIG Reports/index.htm >. 28 81 Fed. Reg. at 691 (see discussion on funding costs of initial margin requirement).

29 In the Swap Dealer De Minimis Exception Final Staff Report, staff described data improvements and 

shortcomings. See discussion at pp. 18-20 of De Minimis Report located at 

< http://www.cftc.gov/idc/groups/public/@swaps/documents/file/dfreport_sddeminis081516.pdf >.
10

clearing members for a report entitled, Supervisory Stress Test of Clearinghouses.

30 In addition, 

there are numerous research projects underway using data from SDRs, DCOs, SEFs, DCMs, and 

from public sources.31 Given its expertise in conducting economic analysis using this data, OCE 

staff is also involved in various joint data-harmonization efforts with international regulators. 

Thus, while the goal is to receive and review quality data, CFTC Management recognizes 

that there is an inevitable lag between establishing a new data collection and building robust 

systems to validate, process, and reliably interpret such large amounts of data. CFTC 

Management recognizes that there may be considerable uncertainty for market participants if all 

rulemakings are delayed until comprehensive, perfect data are available to address all potential 

concerns in a detailed fashion. This is especially true in cases, such as the Margin Rule, where 

other regulators or other jurisdictions promulgate related rules. CFTC Management notes that 

this trade-off between timeliness and precision means that inaction by a regulator, in such cases, 

could lead to a greater burden for industry. In light of such concerns, CFTC Management 

believes it is vital that economic research be an ongoing, established program at the Commission, 

rather than a narrowly focused effort considering solely the accounting of costs and benefits of 

proposed and final rules. 

CFTC Management agrees with the OIG’s claims that rigorous economic research and 

improved data will benefit the Commission and the public. CFTC Management believes that it

has made affirmative efforts to improve the Commission’s data infrastructure, and intends to 

maintain these efforts into the future. 

30 Supervisory Stress Test of Clearinghouses Report at p. 19. Report located at 

< http://www.cftc.gov/idc/groups/public/@newsroom/documents/file/cftcstresstest111516.pdf >. 31 For example, in the paper, Exploring Commodity Trading Activity: An Integrated Analysis of Swaps and Futures, 

OCE staff used post Dodd-Frank, data sets to measure index swap activity and commodity-specific activity focusing 

on WTI crude oil. 

< http://www.cftc.gov/idc/groups/public/@economicanalysis/documents/file/oce_wtiswapsfutures.pdf >.