81_FR_53422 81 FR 53266 - Written Acknowledgment of Customer Funds From Federal Reserve Banks

81 FR 53266 - Written Acknowledgment of Customer Funds From Federal Reserve Banks

COMMODITY FUTURES TRADING COMMISSION

Federal Register Volume 81, Issue 156 (August 12, 2016)

Page Range53266-53268
FR Document2016-19211

The Commodity Futures Trading Commission (``CFTC'' or ``Commission'') is amending its regulations to revise or repeal certain provisions related to the requirement that a derivatives clearing organization (``DCO'') obtain from a Federal Reserve Bank acting as a depository for customer funds a written acknowledgment that the Federal Reserve Bank was informed that the customer funds deposited therein are those of customers and are being held in accordance with Section 4d of the Commodity Exchange Act (``CEA'').

Federal Register, Volume 81 Issue 156 (Friday, August 12, 2016)
[Federal Register Volume 81, Number 156 (Friday, August 12, 2016)]
[Rules and Regulations]
[Pages 53266-53268]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-19211]


=======================================================================
-----------------------------------------------------------------------

COMMODITY FUTURES TRADING COMMISSION

17 CFR Part 1

RIN 3038-AE48


Written Acknowledgment of Customer Funds From Federal Reserve 
Banks

AGENCY: Commodity Futures Trading Commission.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Commodity Futures Trading Commission (``CFTC'' or 
``Commission'') is amending its regulations to revise or repeal certain 
provisions related to the requirement that a derivatives clearing 
organization (``DCO'') obtain from a Federal Reserve Bank acting as a 
depository for customer funds a written acknowledgment that the Federal 
Reserve Bank was informed that the customer funds deposited therein are 
those of customers and are being held in accordance with Section 4d of 
the Commodity Exchange Act (``CEA'').

DATES: Effective August 12, 2016.

FOR FURTHER INFORMATION CONTACT: Eileen A. Donovan, Deputy Director, 
202-418-5096, edonovan@cftc.gov; M. Laura Astrada, Associate Director, 
202-418-7622, lastrada@cftc.gov; or Parisa Abadi, Attorney-Advisor, 
202-418-6620, pabadi@cftc.gov, in each case, at the Division of 
Clearing and Risk, Commodity Futures Trading Commission, Three 
Lafayette Centre, 1155 21st Street NW., Washington, DC 20581.

SUPPLEMENTARY INFORMATION: On June 2, 2016, the Commission published 
for public comment in the Federal Register a proposed order that would 
exempt Federal Reserve Banks that provide customer accounts and other 
services to certain designated financial market utilities registered 
with the Commission from Sections 4d and 22 of the CEA.\1\ The proposed 
order would permit Federal Reserve Banks to hold money, securities, and 
property deposited into a customer account by certain designated 
financial market utilities in accordance with the standards to which 
Federal Reserve Banks are held.
---------------------------------------------------------------------------

    \1\ Notice of Proposed Order and Request for Comment on Proposal 
to Exempt, Pursuant to the Authority in Section 4(c) of the 
Commodity Exchange Act, the Federal Reserve Banks from Sections 4d 
and 22 of the Commodity Exchange Act, 81 FR 35337 (June 2, 2016).
---------------------------------------------------------------------------

    In response to the request for public comment, CME Group Inc. noted 
that the proposed order would be inconsistent with Regulation 
1.20(g)(4)(ii).\2\ Commission Regulation 1.20(g)(4)(ii) requires that a 
DCO obtain from a Federal Reserve Bank acting as a depository for 
customer funds a written acknowledgment that the customer funds 
deposited therein are being held in accordance with Section 4d of the 
CEA; however, pursuant to the terms of the proposed order, the Federal 
Reserve Banks would be exempt from Section 4d. The Commission 
subsequently issued a final exemptive order that is substantively 
similar to the proposed order. In the Federal Register notice issuing 
the final exemptive order, the Commission noted that, in light of the 
comment, it had determined to repeal the written acknowledgment 
requirement with respect to customer accounts held with a Federal 
Reserve Bank \3\ in a separate Federal Register notice. The final 
exemptive order will render these provisions inapplicable, as the 
Federal Reserve Banks will not be held to the requirements of Section 
4d of the CEA. Therefore, the Commission is amending Regulation 1.20 to 
remove the acknowledgment letter requirement for customer funds 
deposited by a DCO with a Federal Reserve Bank. The Commission welcomes 
any comments and/or questions regarding this amendment.
---------------------------------------------------------------------------

    \2\ 17 CFR 1.20(g)(4)(ii). Regulation 1.20(g)(4)(ii) provides 
that a DCO shall obtain from a Federal Reserve Bank only a written 
acknowledgment that: (A) The Federal Reserve Bank was informed that 
the customer funds deposited therein are those of customers and are 
being held in accordance with the provisions of section 4d of the 
Act and Commission regulations thereunder; and (B) The Federal 
Reserve Bank agrees to reply promptly and directly to any request 
from Commission staff for confirmation of account balances or 
provision of any other information regarding or related to an 
account. Id.
    \3\ Specifically, the Commission is revising paragraphs 
(g)(4)(i) and (g)(4)(ii) of Regulation 1.20, and repealing 
paragraphs (g)(4)(ii)(A) and (g)(4)(ii)(B) of Regulation 1.20.
---------------------------------------------------------------------------

List of Subjects in 17 CFR Part 1

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

    For the reasons stated in the preamble, the Commodity Futures 
Trading Commission amends 17 CFR part 1 as follows:

PART 1--GENERAL REGULATIONS UNDER THE COMMODITY EXCHANGE ACT

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

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

[[Page 53267]]


0
2. Amend Sec.  1.20 by revising paragraphs (g)(4)(i) and (ii) to read 
as follows:


Sec.  1.20   Futures customer funds to be segregated and separately 
accounted for.

* * * * *
    (g) * * *
    (4) * * *
    (i) A derivatives clearing organization must obtain a written 
acknowledgment from each depository prior to or contemporaneously with 
the opening of a futures customer funds account; provided, however, 
that a derivatives clearing organization is not required to obtain a 
written acknowledgment from a Federal Reserve Bank with which it has 
opened a futures customer funds account.
    (ii) The written acknowledgment must be in the form as set out in 
appendix B to this part.
* * * * *

    Issued in Washington, DC, on August 8, 2016, by the Commission.
Christopher J. Kirkpatrick,
Secretary of the Commission.

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

Appendices to Written Acknowledgment of Customer Funds From Federal 
Reserve Banks--Commission Voting Summary, Chairman's Statement, and 
Commissioner's Statement

Appendix 1--Commission Voting Summary

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

Appendix 2--Statement of Chairman Timothy G. Massad

    Today, the Commission continues its work to ensure the 
resiliency of clearinghouses and protect customers in our markets. 
To provide the necessary context for these efforts, it is useful to 
look back at recent history.
    Most participants in our markets will recall what happened at 
the beginning of the financial crisis in September 2008, when the 
Reserve Fund--a money market fund--``broke the buck'' following the 
bankruptcy of Lehman Brothers. Redemptions were suspended and 
investors were not able to make withdrawals. As a result, many 
futures commission merchants (FCMs) were not able to access customer 
funds invested in the Reserve Fund. Absent relief by the CFTC, many 
would have been undercapitalized, potentially ending up in 
bankruptcy. In addition, clearinghouses could not liquidate 
investments in the Reserve Fund. And there could have easily been a 
widespread run on money market funds, but for the emergency actions 
taken by the U.S. government.
    As a result of the crisis, as well as the collapse of MF Global, 
the CFTC and our self-regulatory organizations took a number of 
actions to better protect customer funds. We required customer funds 
to be strictly segregated and limited the ways they can be invested. 
We enhanced accounting and auditing procedures at FCMs, including by 
requiring daily verification from depositories of the amounts 
deposited by FCMs.
    Today, CFTC rules require that customer funds be invested in 
highly liquid assets and be convertible into cash within one 
business day without a material discount in value. Our rules also 
require that clearinghouses invest initial margin deposits in a 
manner that allows them to promptly liquidate any such investment.
    Over the last few years, the Securities and Exchange Commission 
(SEC) has also taken action in response to the lessons of the 
financial crisis, by adopting a number of measures to address the 
potential vulnerabilities of money market funds. One such recent 
reform, which takes effect in October of this year, sets forth the 
circumstances where prime money market funds are permitted, or in 
some circumstances required, to suspend redemptions in order to 
prevent the risk of investor runs.
    While we recognize the benefit of the SEC's new rule in 
preventing investor runs, a suspension of redemptions by a money 
market fund would mean investments in such funds are not accessible 
and cannot be promptly liquidated. Such an event could result in 
customers, FCMs, and clearinghouses being unable to access the funds 
necessary to satisfy margin obligations.
    Therefore, CFTC staff is today providing guidance making clear 
that Commission rules prohibit a clearing member from investing 
customer funds, or a clearinghouse from investing amounts deposited 
as initial margin, in such money market funds.
    Some industry participants have suggested we should interpret or 
revise our rules to permit investments of at least some customer 
monies in such money market funds unless and until redemptions are 
suspended. We have declined to do so, as it would be too late to 
protect customers at that point. Moreover, there are alternatives to 
prime funds, including certain government money markets funds or 
Treasury securities. In fact, investments in prime money market 
funds represent a relatively small portion of the total customer 
funds on deposit and the total initial margin deposits at 
clearinghouses. Some of our clearinghouses and FCMs do not have any 
investments in prime funds.
    Staff has been careful not to be overly restrictive, and 
therefore has issued no-action relief to allow FCMs to invest 
certain ``excess'' proprietary funds held in customer accounts in 
these money market funds. That is, our existing rules require FCMs 
to deposit their own funds (i.e., targeted residual interest) into 
customer accounts to make sure that there are sufficient funds in 
the segregated customer accounts to cover all obligations due to 
customers. FCMs frequently deposit an amount of their own funds that 
is in excess of the targeted residual interest amount required under 
our rules, and that excess amount can be withdrawn at any time. 
Indeed, if an FCM should default, customers--and the system as a 
whole--are better off if excess funds are on deposit, and we do not 
wish to incentivize FCMs to withdraw such excess funds from the 
segregated account. Therefore, the no action relief makes clear that 
FCMs can continue to invest their own funds in excess of their 
targeted residual interest in such money market funds, even though 
they cannot invest the customer funds--or any proprietary funds they 
are required to deposit--in this manner.
    Finally, the Commission is taking action today that will further 
ensure the safety of customer funds. We are issuing an order that 
will help make it possible for systemically important clearinghouses 
to deposit customer funds at Federal Reserve Banks. Our order makes 
clear that a Federal Reserve Bank that opens such an account would 
be subject to the same standards of liability that generally apply 
to it as a depository, rather than any potentially conflicting 
standard under the commodity laws.
    Although Federal Reserve accounts for customer funds held by 
systemically important clearinghouses do not exist today, they are 
allowed under the Dodd-Frank Act, and we have been working with the 
Board of Governors to facilitate them. The two clearinghouses 
designated as systemically important in our markets have been 
approved to open Federal Reserve Bank accounts for their proprietary 
funds. We hope that with today's action, accounts for customer funds 
can be opened soon. Doing so will help protect customer funds and 
enhance the resiliency of clearinghouses.
    I thank the dedicated CFTC staff and my fellow Commissioners for 
their work on these matters.

Appendix 3--Concurring Statement of Commissioner Sharon Y. Bowen

    I am pleased to concur with the two Commission actions: the 
``Order Exempting the Federal Reserve Banks from Sections 4d and 22 
of the Commodity Exchange Act'' and ``Written Acknowledgment of 
Customer Funds from Federal Reserve Banks.'' I have long believed 
that, in order to protect customer funds, we need to keep that money 
at our central bank. In the event of a major market event, I, and I 
believe the rest of the American people, would feel much better 
knowing that investors' money is at the Federal Reserve instead of 
at multiple central counterparties. I am glad that our agency and 
the Federal Reserve have come to an agreement on an effective way to 
accomplish this.
    I am similarly pleased with the Division of Clearing and Risk's 
(DCR) ``Staff Interpretation Regarding CFTC Part 39 In Light Of 
Revised SEC Rule 2a-7,'' which clearly outlines the staff's 
understanding that, given the limitations that the Securities and 
Exchange Commission (SEC) has imposed on redemptions for prime money 
market funds, that they are no longer considered Rule 1.25 assets. 
This is the correct interpretation. The key feature in a Rule 1.25 
asset is that it must be available quickly in times of crisis or 
illiquidity. And

[[Page 53268]]

we know that funds are more likely to close the gates on redemptions 
when market dislocation happens. That is just the time when futures 
commission merchants (FCMs) and customers would need access to their 
money, and a multi-day delay can mean catastrophe for some 
businesses.
    For that very reason, I have concerns about the Division of Swap 
Dealer and Intermediary Oversight's (DSIO) ``No-Action Relief With 
Respect to CFTC Regulation 1.25 Regarding Money Market Funds.'' 
While the 4(c) exemption and the DCR interpretation are clearly 
customer protection initiatives, the DSIO no action letter is not. 
This no action letter would allow FCMs to keep money in segregated 
customer accounts that actually would not be readily available in a 
crisis. Thus, while it may appear that an FCM had considerable funds 
available to settle customer accounts during a market dislocation, 
in fact that would be only be an illusion; a portion of those funds 
could be locked down behind the prime money market funds' gates and 
therefore not actually be available when needed.
    I do not think that the staff of the Commission should be 
supporting this kind of ``window dressing''--giving the impression 
of greater security than there actually is. If the funds are not 
suitable investments for customer funds, then they are not suitable 
for the additional capital that the FCMs put in those accounts to 
protect against potential shortfalls. Having lived through 
bankruptcies, such as MF Global and Peregrine, I have a healthy 
respect for the importance of having strong clearing members with a 
large cushion of funds that can be accessed when needed. This no 
action letter undermines that effort. Given the importance of this 
topic to the general public, we should at least have asked for 
comments or even held a roundtable before making this change. I 
therefore hope to reexamine this subject in the near future.

[FR Doc. 2016-19211 Filed 8-11-16; 8:45 am]
 BILLING CODE 6351-01-P



                                           53266                 Federal Register / Vol. 81, No. 156 / Friday, August 12, 2016 / Rules and Regulations

                                           Environmental Review                                       COMMODITY FUTURES TRADING                             1.20(g)(4)(ii).2 Commission Regulation
                                                                                                      COMMISSION                                            1.20(g)(4)(ii) requires that a DCO obtain
                                              The FAA has determined that this                                                                              from a Federal Reserve Bank acting as
                                           action qualifies for categorical exclusion                 17 CFR Part 1                                         a depository for customer funds a
                                           under the National Environmental                                                                                 written acknowledgment that the
                                           Policy Act in accordance with FAA                          RIN 3038–AE48                                         customer funds deposited therein are
                                           Order 1050.1F, ‘‘Environmental                                                                                   being held in accordance with Section
                                           Impacts: Policies and Procedures,’’                        Written Acknowledgment of Customer                    4d of the CEA; however, pursuant to the
                                           paragraph 5–6.5a. This airspace action                     Funds From Federal Reserve Banks                      terms of the proposed order, the Federal
                                           is not expected to cause any potentially                   AGENCY:  Commodity Futures Trading                    Reserve Banks would be exempt from
                                           significant environmental impacts, and                     Commission.                                           Section 4d. The Commission
                                           no extraordinary circumstances exists                                                                            subsequently issued a final exemptive
                                                                                                      ACTION: Final rule.
                                           that warrant preparation of an                                                                                   order that is substantively similar to the
                                           environmental assessment.                                  SUMMARY:   The Commodity Futures                      proposed order. In the Federal Register
                                                                                                      Trading Commission (‘‘CFTC’’ or                       notice issuing the final exemptive order,
                                           Lists of Subjects in 14 CFR Part 71                                                                              the Commission noted that, in light of
                                                                                                      ‘‘Commission’’) is amending its
                                                                                                      regulations to revise or repeal certain               the comment, it had determined to
                                            Airspace, Incorporation by reference,
                                                                                                      provisions related to the requirement                 repeal the written acknowledgment
                                           Navigation (air).
                                                                                                      that a derivatives clearing organization              requirement with respect to customer
                                           Adoption of the Amendment                                  (‘‘DCO’’) obtain from a Federal Reserve               accounts held with a Federal Reserve
                                                                                                      Bank acting as a depository for customer              Bank 3 in a separate Federal Register
                                             In consideration of the foregoing, the                                                                         notice. The final exemptive order will
                                                                                                      funds a written acknowledgment that
                                           Federal Aviation Administration                                                                                  render these provisions inapplicable, as
                                                                                                      the Federal Reserve Bank was informed
                                           amends 14 CFR part 71 as follows:                          that the customer funds deposited                     the Federal Reserve Banks will not be
                                                                                                      therein are those of customers and are                held to the requirements of Section 4d
                                           PART 71—DESIGNATION OF CLASS A,                                                                                  of the CEA. Therefore, the Commission
                                                                                                      being held in accordance with Section
                                           B, C, D, AND E AIRSPACE AREAS; AIR                                                                               is amending Regulation 1.20 to remove
                                                                                                      4d of the Commodity Exchange Act
                                           TRAFFIC SERVICE ROUTES; AND                                                                                      the acknowledgment letter requirement
                                                                                                      (‘‘CEA’’).
                                           REPORTING POINTS                                                                                                 for customer funds deposited by a DCO
                                                                                                      DATES:   Effective August 12, 2016.                   with a Federal Reserve Bank. The
                                           ■ 1. The authority citation for Part 71                    FOR FURTHER INFORMATION CONTACT:                      Commission welcomes any comments
                                           continues to read as follows:                              Eileen A. Donovan, Deputy Director,                   and/or questions regarding this
                                                                                                      202–418–5096, edonovan@cftc.gov; M.                   amendment.
                                             Authority: 49 U.S.C. 106(f), 106(g); 40103,
                                                                                                      Laura Astrada, Associate Director, 202–
                                           40113, 40120, E.O. 10854, 24 FR 9565, 3 CFR,                                                                     List of Subjects in 17 CFR Part 1
                                                                                                      418–7622, lastrada@cftc.gov; or Parisa
                                           1959–1963 Comp., p. 389.
                                                                                                      Abadi, Attorney-Advisor, 202–418–                       Brokers, Commodity futures,
                                           § 71.1       [Amended]                                     6620, pabadi@cftc.gov, in each case, at               Consumer protection, Reporting and
                                                                                                      the Division of Clearing and Risk,                    recordkeeping requirements.
                                           ■ 2. The incorporation by reference in                     Commodity Futures Trading                               For the reasons stated in the
                                           14 CFR 71.1 of FAA Order 7400.9Z,                          Commission, Three Lafayette Centre,                   preamble, the Commodity Futures
                                           Airspace Designations and Reporting                        1155 21st Street NW., Washington, DC                  Trading Commission amends 17 CFR
                                           Points, dated August 6, 2015, effective                    20581.                                                part 1 as follows:
                                           September 15, 2015, is amended as                          SUPPLEMENTARY INFORMATION: On June 2,
                                           follows:                                                   2016, the Commission published for                    PART 1—GENERAL REGULATIONS
                                                                                                      public comment in the Federal Register                UNDER THE COMMODITY EXCHANGE
                                           Paragraph 6006         En Route Domestic                   a proposed order that would exempt                    ACT
                                           Airspace Areas.                                            Federal Reserve Banks that provide                    ■ 1. The authority citation for part 1
                                           *        *      *       *      *                           customer accounts and other services to               continues to read as follows:
                                                                                                      certain designated financial market
                                           AGL ND E6 Harvey, ND [New]                                                                                         Authority: 7 U.S.C. 1a, 2, 5, 6, 6a, 6b, 6c,
                                                                                                      utilities registered with the Commission
                                           Harvey Municipal Airport, ND                                                                                     6d, 6e, 6f, 6g, 6h, 6i, 6k, 6l, 6m, 6n, 6o, 6p,
                                                                                                      from Sections 4d and 22 of the CEA.1
                                             (Lat. 47°47′28″ N., long. 099°55′54″ W.)                                                                       6r, 6s, 7, 7a–1, 7a–2, 7b, 7b–3, 8, 9, 10a, 12,
                                                                                                      The proposed order would permit                       12a, 12c, 13a, 13a–1, 16, 16a, 19, 21, 23, and
                                             That airspace extending upward from                      Federal Reserve Banks to hold money,                  24 (2012).
                                           1,200 feet above the surface within a 100-                 securities, and property deposited into a
                                           mile radius of Harvey Municipal Airport,                   customer account by certain designated                   2 17 CFR 1.20(g)(4)(ii). Regulation 1.20(g)(4)(ii)
                                           excluding that airspace within Canada.                     financial market utilities in accordance              provides that a DCO shall obtain from a Federal
                                                                                                      with the standards to which Federal                   Reserve Bank only a written acknowledgment that:
                                             Issued in Fort Worth, TX, on August 3,                                                                         (A) The Federal Reserve Bank was informed that the
                                           2016.                                                      Reserve Banks are held.                               customer funds deposited therein are those of
                                           Vonnie L. Royal,                                              In response to the request for public              customers and are being held in accordance with
                                                                                                      comment, CME Group Inc. noted that                    the provisions of section 4d of the Act and
                                           Acting Manager, Operations Support Group,                                                                        Commission regulations thereunder; and (B) The
                                                                                                      the proposed order would be
                                           ATO Central Service Center.                                                                                      Federal Reserve Bank agrees to reply promptly and
                                                                                                      inconsistent with Regulation                          directly to any request from Commission staff for
ehiers on DSK5VPTVN1PROD with RULES




                                           [FR Doc. 2016–19006 Filed 8–11–16; 8:45 am]
                                                                                                                                                            confirmation of account balances or provision of
                                           BILLING CODE 4910–13–P                                       1 Notice of Proposed Order and Request for          any other information regarding or related to an
                                                                                                      Comment on Proposal to Exempt, Pursuant to the        account. Id.
                                                                                                      Authority in Section 4(c) of the Commodity               3 Specifically, the Commission is revising

                                                                                                      Exchange Act, the Federal Reserve Banks from          paragraphs (g)(4)(i) and (g)(4)(ii) of Regulation 1.20,
                                                                                                      Sections 4d and 22 of the Commodity Exchange          and repealing paragraphs (g)(4)(ii)(A) and
                                                                                                      Act, 81 FR 35337 (June 2, 2016).                      (g)(4)(ii)(B) of Regulation 1.20.



                                      VerDate Sep<11>2014      14:21 Aug 11, 2016   Jkt 238001   PO 00000   Frm 00022   Fmt 4700   Sfmt 4700   E:\FR\FM\12AUR1.SGM   12AUR1


                                                              Federal Register / Vol. 81, No. 156 / Friday, August 12, 2016 / Rules and Regulations                                            53267

                                           ■ 2. Amend § 1.20 by revising                              As a result of the crisis, as well as the          and that excess amount can be withdrawn at
                                           paragraphs (g)(4)(i) and (ii) to read as                collapse of MF Global, the CFTC and our self-         any time. Indeed, if an FCM should default,
                                           follows:                                                regulatory organizations took a number of             customers—and the system as a whole—are
                                                                                                   actions to better protect customer funds. We          better off if excess funds are on deposit, and
                                           § 1.20 Futures customer funds to be                     required customer funds to be strictly                we do not wish to incentivize FCMs to
                                           segregated and separately accounted for.                segregated and limited the ways they can be           withdraw such excess funds from the
                                                                                                   invested. We enhanced accounting and                  segregated account. Therefore, the no action
                                           *       *    *    *     *                               auditing procedures at FCMs, including by             relief makes clear that FCMs can continue to
                                              (g) * * *                                            requiring daily verification from depositories        invest their own funds in excess of their
                                              (4) * * *                                            of the amounts deposited by FCMs.                     targeted residual interest in such money
                                              (i) A derivatives clearing organization                 Today, CFTC rules require that customer            market funds, even though they cannot invest
                                           must obtain a written acknowledgment                    funds be invested in highly liquid assets and         the customer funds—or any proprietary
                                           from each depository prior to or                        be convertible into cash within one business          funds they are required to deposit—in this
                                           contemporaneously with the opening of                   day without a material discount in value. Our         manner.
                                           a futures customer funds account;                       rules also require that clearinghouses invest            Finally, the Commission is taking action
                                                                                                   initial margin deposits in a manner that              today that will further ensure the safety of
                                           provided, however, that a derivatives                   allows them to promptly liquidate any such            customer funds. We are issuing an order that
                                           clearing organization is not required to                investment.                                           will help make it possible for systemically
                                           obtain a written acknowledgment from                       Over the last few years, the Securities and        important clearinghouses to deposit customer
                                           a Federal Reserve Bank with which it                    Exchange Commission (SEC) has also taken              funds at Federal Reserve Banks. Our order
                                           has opened a futures customer funds                     action in response to the lessons of the              makes clear that a Federal Reserve Bank that
                                           account.                                                financial crisis, by adopting a number of             opens such an account would be subject to
                                              (ii) The written acknowledgment must                 measures to address the potential                     the same standards of liability that generally
                                           be in the form as set out in appendix B                 vulnerabilities of money market funds. One            apply to it as a depository, rather than any
                                                                                                   such recent reform, which takes effect in             potentially conflicting standard under the
                                           to this part.                                                                                                 commodity laws.
                                                                                                   October of this year, sets forth the
                                           *       *    *    *     *                               circumstances where prime money market                   Although Federal Reserve accounts for
                                             Issued in Washington, DC, on August 8,                funds are permitted, or in some                       customer funds held by systemically
                                           2016, by the Commission.                                circumstances required, to suspend                    important clearinghouses do not exist today,
                                                                                                   redemptions in order to prevent the risk of           they are allowed under the Dodd-Frank Act,
                                           Christopher J. Kirkpatrick,                                                                                   and we have been working with the Board of
                                                                                                   investor runs.
                                           Secretary of the Commission.                               While we recognize the benefit of the SEC’s        Governors to facilitate them. The two
                                                                                                   new rule in preventing investor runs, a               clearinghouses designated as systemically
                                             Note: The following appendices will not
                                                                                                   suspension of redemptions by a money                  important in our markets have been approved
                                           appear in the Code of Federal Regulations.
                                                                                                   market fund would mean investments in                 to open Federal Reserve Bank accounts for
                                                                                                   such funds are not accessible and cannot be           their proprietary funds. We hope that with
                                           Appendices to Written                                                                                         today’s action, accounts for customer funds
                                                                                                   promptly liquidated. Such an event could
                                           Acknowledgment of Customer Funds                        result in customers, FCMs, and                        can be opened soon. Doing so will help
                                           From Federal Reserve Banks—                             clearinghouses being unable to access the             protect customer funds and enhance the
                                           Commission Voting Summary,                              funds necessary to satisfy margin obligations.        resiliency of clearinghouses.
                                           Chairman’s Statement, and                                  Therefore, CFTC staff is today providing              I thank the dedicated CFTC staff and my
                                           Commissioner’s Statement                                guidance making clear that Commission rules           fellow Commissioners for their work on these
                                                                                                   prohibit a clearing member from investing             matters.
                                           Appendix 1—Commission Voting                            customer funds, or a clearinghouse from
                                           Summary                                                                                                       Appendix 3—Concurring Statement of
                                                                                                   investing amounts deposited as initial
                                                                                                   margin, in such money market funds.
                                                                                                                                                         Commissioner Sharon Y. Bowen
                                             On this matter, Chairman Massad and                      Some industry participants have suggested             I am pleased to concur with the two
                                           Commissioners Bowen and Giancarlo voted                 we should interpret or revise our rules to            Commission actions: the ‘‘Order Exempting
                                           in the affirmative. No Commissioner voted in            permit investments of at least some customer          the Federal Reserve Banks from Sections 4d
                                           the negative.                                           monies in such money market funds unless              and 22 of the Commodity Exchange Act’’ and
                                           Appendix 2—Statement of Chairman                        and until redemptions are suspended. We               ‘‘Written Acknowledgment of Customer
                                                                                                   have declined to do so, as it would be too late       Funds from Federal Reserve Banks.’’ I have
                                           Timothy G. Massad
                                                                                                   to protect customers at that point. Moreover,         long believed that, in order to protect
                                              Today, the Commission continues its work             there are alternatives to prime funds,                customer funds, we need to keep that money
                                           to ensure the resiliency of clearinghouses and          including certain government money markets            at our central bank. In the event of a major
                                           protect customers in our markets. To provide            funds or Treasury securities. In fact,                market event, I, and I believe the rest of the
                                           the necessary context for these efforts, it is          investments in prime money market funds               American people, would feel much better
                                           useful to look back at recent history.                  represent a relatively small portion of the           knowing that investors’ money is at the
                                              Most participants in our markets will recall         total customer funds on deposit and the total         Federal Reserve instead of at multiple central
                                           what happened at the beginning of the                   initial margin deposits at clearinghouses.            counterparties. I am glad that our agency and
                                           financial crisis in September 2008, when the            Some of our clearinghouses and FCMs do not            the Federal Reserve have come to an
                                           Reserve Fund—a money market fund—                       have any investments in prime funds.                  agreement on an effective way to accomplish
                                           ‘‘broke the buck’’ following the bankruptcy of             Staff has been careful not to be overly            this.
                                           Lehman Brothers. Redemptions were                       restrictive, and therefore has issued no-action          I am similarly pleased with the Division of
                                           suspended and investors were not able to                relief to allow FCMs to invest certain                Clearing and Risk’s (DCR) ‘‘Staff
                                           make withdrawals. As a result, many futures             ‘‘excess’’ proprietary funds held in customer         Interpretation Regarding CFTC Part 39 In
                                           commission merchants (FCMs) were not able               accounts in these money market funds. That            Light Of Revised SEC Rule 2a–7,’’ which
                                           to access customer funds invested in the                is, our existing rules require FCMs to deposit        clearly outlines the staff’s understanding
                                           Reserve Fund. Absent relief by the CFTC,                their own funds (i.e., targeted residual              that, given the limitations that the Securities
ehiers on DSK5VPTVN1PROD with RULES




                                           many would have been undercapitalized,                  interest) into customer accounts to make sure         and Exchange Commission (SEC) has
                                           potentially ending up in bankruptcy. In                 that there are sufficient funds in the                imposed on redemptions for prime money
                                           addition, clearinghouses could not liquidate            segregated customer accounts to cover all             market funds, that they are no longer
                                           investments in the Reserve Fund. And there              obligations due to customers. FCMs                    considered Rule 1.25 assets. This is the
                                           could have easily been a widespread run on              frequently deposit an amount of their own             correct interpretation. The key feature in a
                                           money market funds, but for the emergency               funds that is in excess of the targeted residual      Rule 1.25 asset is that it must be available
                                           actions taken by the U.S. government.                   interest amount required under our rules,             quickly in times of crisis or illiquidity. And



                                      VerDate Sep<11>2014   14:21 Aug 11, 2016   Jkt 238001   PO 00000   Frm 00023   Fmt 4700   Sfmt 4700   E:\FR\FM\12AUR1.SGM   12AUR1


                                           53268              Federal Register / Vol. 81, No. 156 / Friday, August 12, 2016 / Rules and Regulations

                                           we know that funds are more likely to close             contained in OSHA’s standard for                        Signed at Washington, DC, on August 2,
                                           the gates on redemptions when market                    Confined Spaces in Construction.                      2016.
                                           dislocation happens. That is just the time                                                                    David Michaels,
                                           when futures commission merchants (FCMs)                DATES:   Effective August 12, 2016.
                                           and customers would need access to their                                                                      Assistant Secretary of Labor for Occupational
                                           money, and a multi-day delay can mean                   FOR FURTHER INFORMATION CONTACT:                      Safety and Health.
                                           catastrophe for some businesses.                        Todd Owen, OSHA, Directorate of
                                              For that very reason, I have concerns about          Standards and Guidance, Room N–3609,                    For the reasons stated in the preamble
                                           the Division of Swap Dealer and                         U.S. Department of Labor, 200                         in this document, the Occupational
                                           Intermediary Oversight’s (DSIO) ‘‘No-Action             Constitution Avenue NW., Washington,                  Safety and Health Administration
                                           Relief With Respect to CFTC Regulation 1.25             DC 20210; telephone (202) 693–2222.                   amends 29 CFR part 1926 as follows:
                                           Regarding Money Market Funds.’’ While the
                                           4(c) exemption and the DCR interpretation               SUPPLEMENTARY INFORMATION:     OSHA                   PART 1926—SAFETY AND HEALTH
                                           are clearly customer protection initiatives,            published a final rule for Confined                   REGULATIONS FOR CONSTRUCTION
                                           the DSIO no action letter is not. This no               Spaces in Construction on May 4, 2015
                                           action letter would allow FCMs to keep                                                                        Subpart A—General
                                           money in segregated customer accounts that              (80 FR 25365) to provide new
                                           actually would not be readily available in a            protections to employees working in
                                           crisis. Thus, while it may appear that an FCM           confined spaces in construction. This                 ■ 1. The authority citation for part 1926,
                                           had considerable funds available to settle              new subpart replaced OSHA’s general                   subpart A, continues to read as follows:
                                           customer accounts during a market                       training requirement for work in                        Authority: 40 U.S.C. 3701 et seq.; 29
                                           dislocation, in fact that would be only be an           confined spaces (29 CFR 1926.21(b)(6))                U.S.C. 653, 655, 657; Secretary of Labor’s
                                           illusion; a portion of those funds could be
                                           locked down behind the prime money market
                                                                                                   with a comprehensive standard. The                    Order No. 12–71 (36 FR 8754), 8–76 (41 FR
                                           funds’ gates and therefore not actually be              new standard includes a permit program                25059), 9–83 (48 FR 35736), 1–90 (55 FR
                                           available when needed.                                  designed to protect employees from                    9033), 6–96 (62 FR 111), 3–2000 (65 FR
                                              I do not think that the staff of the                 exposure to many hazards associated                   50017), 5–2002 (67 FR 65008), or 5–2007 (72
                                           Commission should be supporting this kind               with work in confined spaces, including               FR 31160), 5–2007 (72 FR 31160), 4–2010 (75
                                           of ‘‘window dressing’’—giving the                       atmospheric and physical hazards.                     FR 55355), or 1–2012 (77 FR 3912), as
                                           impression of greater security than there                                                                     applicable; and 29 CFR part 1911.
                                                                                                   Those requirements contained
                                           actually is. If the funds are not suitable
                                           investments for customer funds, then they               collections of information approved by                ■  2. Amend § 1926.5 by adding to the
                                           are not suitable for the additional capital that        OMB under control number 1218–0258,                   table, in the proper numerical sequence,
                                           the FCMs put in those accounts to protect               which OSHA publicized in the Federal                  the entries for ‘‘1926.1203,’’
                                           against potential shortfalls. Having lived              Register document announcing the new                  ‘‘1926.1204,’’ ‘‘1926.1205,’’
                                           through bankruptcies, such as MF Global and             rule (see 80 FR 22514–22517). This                    ‘‘1926.1206,’’ ‘‘1926.1207,’’
                                           Peregrine, I have a healthy respect for the             technical amendment codifies the OMB
                                           importance of having strong clearing                                                                          ‘‘1926.1208,’’ ‘‘1926.1209,’’
                                           members with a large cushion of funds that
                                                                                                   control number for the Confined Spaces                ‘‘1926.1210,’’ ‘‘1926.1211,’’
                                           can be accessed when needed. This no action             in Construction standard into § 1926.5,               ‘‘1926.1212,’’ and ‘‘1926.1213’’ to read
                                           letter undermines that effort. Given the                which is the central section in which                 as follows:
                                           importance of this topic to the general public,         OSHA displays its approved collections
                                           we should at least have asked for comments              under the Paperwork Reduction Act.                    § 1926.5 OMB control numbers under the
                                           or even held a roundtable before making this                                                                  Paperwork Reduction Act.
                                           change. I therefore hope to reexamine this                 Additional opportunity for public
                                                                                                   comment on this rule is unnecessary                   *        *    *          *         *
                                           subject in the near future.
                                           [FR Doc. 2016–19211 Filed 8–11–16; 8:45 am]             because the public has already had the
                                                                                                                                                                                                        OMB
                                           BILLING CODE 6351–01–P
                                                                                                   opportunity to comment on the                                  29 CFR Citation                     Control No.
                                                                                                   collections of information and OMB has
                                                                                                   approved them. This revision of
                                                                                                   § 1926.5 is a purely technical step to                   *            *              *             *         *
                                           DEPARTMENT OF LABOR
                                                                                                   increase public awareness of OMB’s                    1926.1203    .............................       1218–0258
                                           Occupational Safety and Health                          approval of the collections of                        1926.1204    .............................       1218–0258
                                           Administration                                          information.                                          1926.1205    .............................       1218–0258
                                                                                                                                                         1926.1206    .............................       1218–0258
                                                                                                   Authority and Signature                               1926.1207    .............................       1218–0258
                                           29 CFR Part 1926
                                                                                                                                                         1926.1208    .............................       1218–0258
                                                                                                     David Michaels, Ph.D., MPH,                         1926.1209    .............................       1218–0258
                                           [Docket No. OSHA–2007–0026]
                                                                                                   Assistant Secretary of Labor for                      1926.1210    .............................       1218–0258
                                           RIN 1218–AB47                                           Occupational Safety and Health,                       1926.1211    .............................       1218–0258
                                                                                                   directed the preparation of this notice.              1926.1212    .............................       1218–0258
                                           Confined Spaces in Construction;                        The authority for this notice is the                  1926.1213    .............................       1218–0258
                                           Approval of Collections of Information                  Paperwork Reduction Act of 1995 (44
                                           AGENCY:  Occupational Safety and Health                 U.S.C. 3506 et seq.) and Secretary of                     *          *               *             *        *
                                           Administration (OSHA), Department of                    Labor’s Order 1–2012 (77 FR 3912 (1/
                                                                                                   25/2012)).                                            [FR Doc. 2016–18965 Filed 8–11–16; 8:45 am]
                                           Labor.
                                                                                                                                                         BILLING CODE 4510–26–P
                                           ACTION: Final rule.
ehiers on DSK5VPTVN1PROD with RULES




                                                                                                   List of Subjects in 29 CFR Part 1926
                                           SUMMARY:   This rule is a technical                       Occupational safety and health,
                                           amendment revising OSHA’s                               Reporting and recordkeeping
                                           regulations to reflect the approval by the              requirements.
                                           Office of Management and Budget
                                           (OMB) of the collections of information


                                      VerDate Sep<11>2014   14:21 Aug 11, 2016   Jkt 238001   PO 00000   Frm 00024   Fmt 4700   Sfmt 9990   E:\FR\FM\12AUR1.SGM   12AUR1



Document Created: 2018-02-09 11:33:03
Document Modified: 2018-02-09 11:33:03
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionRules and Regulations
ActionFinal rule.
DatesEffective August 12, 2016.
ContactEileen A. Donovan, Deputy Director, 202-418-5096, [email protected]; M. Laura Astrada, Associate Director, 202-418-7622, [email protected]; or Parisa Abadi, Attorney-Advisor, 202-418-6620, [email protected], in each case, at the Division of Clearing and Risk, Commodity Futures Trading Commission, Three Lafayette Centre, 1155 21st Street NW., Washington, DC 20581.
FR Citation81 FR 53266 
RIN Number3038-AE48
CFR AssociatedBrokers; Commodity Futures; Consumer Protection and Reporting and Recordkeeping Requirements

2024 Federal Register | Disclaimer | Privacy Policy
USC | CFR | eCFR