82 FR 48394 - Comparability Determination for the European Union: Margin Requirements for Uncleared Swaps for Swap Dealers and Major Swap Participants
COMMODITY FUTURES TRADING COMMISSION Federal Register Volume 82, Issue 200 (October 18, 2017)
Federal Register Volume 82, Issue 200 (October 18, 2017)
| Page Range | 48394-48413 | |
| FR Document | 2017-22616 |
[Federal Register Volume 82, Number 200 (Wednesday, October 18, 2017)] [Rules and Regulations] [Pages 48394-48413] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2017-22616] ======================================================================= ----------------------------------------------------------------------- COMMODITY FUTURES TRADING COMMISSION 17 CFR Chapter I Comparability Determination for the European Union: Margin Requirements for Uncleared Swaps for Swap Dealers and Major Swap Participants AGENCY: Commodity Futures Trading Commission. ACTION: Notification of determination. ----------------------------------------------------------------------- SUMMARY: The following is the analysis and determination of the Commodity Futures Trading Commission (``Commission'') regarding a request by the European Commission (``EC'') that the Commission determine that laws and regulations applicable in the European Union (``EU'') provide a sufficient basis for an affirmative finding of comparability with respect to margin requirements for uncleared swaps applicable to certain swap dealers (``SDs'') and major swap participants (``MSPs'') registered with the Commission. As discussed in detail herein, the Commission has found the margin requirements for uncleared swaps under the laws and regulations of the EU comparable in outcome to those under the Commodity Exchange Act (``CEA'') and Commission regulations. DATES: This determination was made and issued by the Commission on October 13, 2017. FOR FURTHER INFORMATION CONTACT: Matthew Kulkin, Director, 202-418- 5213, [email protected], or Katherine S. Driscoll, Associate Chief Counsel, 202-418-5544, [email protected], Division of Swap Dealer and Intermediary Oversight, Commodity Futures Trading Commission, Three Lafayette Centre, 1155 21st Street NW., Washington, DC 20581. SUPPLEMENTARY INFORMATION: I. Introduction Pursuant to section 4s(e) of the CEA,\1\ the Commission is required to promulgate margin requirements for uncleared swaps applicable to each SD and MSP for which there is no Prudential Regulator (collectively, ``Covered Swap Entities'' or ``CSEs'').\2\ The Commission published final margin requirements for such CSEs in January 2016 (the ``Final Margin Rule'').\3\ --------------------------------------------------------------------------- \1\ 7 U.S.C. 1 et seq. \2\ See 7 U.S.C. 6s(e)(1)(B). SDs and MSPs for which there is a Prudential Regulator must meet the margin requirements for uncleared swaps established by the applicable Prudential Regulator. 7 U.S.C. 6s(e)(1)(A). See also 7 U.S.C. 1a(39) (defining the term ``Prudential Regulator'' to include: The Board of Governors of the Federal Reserve System; the Office of the Comptroller of the Currency; the Federal Deposit Insurance Corporation; the Farm Credit Administration; and the Federal Housing Finance Agency). The Prudential Regulators published final margin requirements in November 2015. See Margin and Capital Requirements for Covered Swap Entities, 80 FR 74840 (Nov. 30, 2015) (``Prudential Regulators' Final Margin Rule''). \3\ See Margin Requirements for Uncleared Swaps for Swap Dealers and Major Swap Participants, 81 FR 636 (Jan. 6, 2016). The Final Margin Rule, which became effective April 1, 2016, is codified in part 23 of the Commission's regulations. See Sec. Sec. 23.150-- 23.159 and 23.161. The Commission's regulations are found in Chapter I of Title 17 of the Code of Federal Regulations, 17 CFR parts 1 through 199. --------------------------------------------------------------------------- Subsequently, on May 31, 2016, the Commission published in the Federal Register its final rule with respect to the cross-border application of the Commission's margin requirements for uncleared swaps applicable to CSEs (hereinafter, the ``Cross-Border Margin Rule'').\4\ The Cross-Border Margin Rule sets out the circumstances under which a CSE is allowed to satisfy the requirements under the Final Margin Rule by complying with comparable foreign margin requirements (``substituted compliance''); offers certain CSEs a limited exclusion from the Commission's margin requirements; and outlines a framework for assessing whether a foreign jurisdiction's margin requirements are comparable in outcome to the Final Margin Rule (``comparability determinations''). The Commission promulgated the Cross-Border Margin Rule after close consultation with the Prudential Regulators and in light of comments [[Page 48395]] from and discussions with market participants and foreign regulators.\5\ --------------------------------------------------------------------------- \4\ See Margin Requirements for Uncleared Swaps for Swap Dealers and Major Swap Participants--Cross-Border Application of the Margin Requirements, 81 FR 34818 (May 31, 2016). The Cross-Border Margin Rule, which became effective August 1, 2016, is codified in part 23 of the Commission's regulations. See Sec. 23.160. \5\ In 2014, in conjunction with re-proposing its margin requirements, the Commission requested comment on three alternative approaches to the cross-border application of its margin requirements: (i) A transaction-level approach consistent with the Commission's guidance on the cross-border application of the CEA's swap provisions, see Interpretive Guidance and Policy Statement Regarding Compliance with Certain Swap Regulations, 78 FR 45292 (July 26, 2013) (the ``Guidance''); (ii) an approach consistent with the Prudential Regulators' proposed cross-border framework for margin, see Margin and Capital Requirements for Covered Swap Entities, 79 FR 57348 (Sept. 24, 2014); and (iii) an entity-level approach that would apply margin rules on a firm-wide basis (without any exclusion for swaps with non-U.S. counterparties). See Margin Requirements for Uncleared Swaps for Swap Dealers and Major Swap Participants, 79 FR 59898 (Oct. 3, 2014). Following a review of comments received in response to this release, the Commission's Global Markets Advisory Committee (``GMAC'') hosted a public panel discussion on the cross-border application of margin requirements. See GMAC Meeting (May 14, 2015), transcript and webcast available at http://www.cftc.gov/PressRoom/Events/opaevent_gmac051415. --------------------------------------------------------------------------- On November 22, 2016, the EC (the ``applicant'') submitted a request that the Commission determine that laws and regulations applicable in the EU provide a sufficient basis for an affirmative finding of comparability with respect to the Final Margin Rule.\6\ The Commission's analysis and comparability determination for the EU regarding the Final Margin Rule is detailed below. --------------------------------------------------------------------------- \6\ The Commission understands that competent authorities in the individual EU Member States have direct supervisory authority over CSEs in their respective Member State with respect to the EU margin requirements (as defined below) and are responsible for administering those margin requirements. Nevertheless, given that the EU comprises the Member States and the EU margin requirements are directly applicable in the Member States, the Commission recognizes the EC as the relevant foreign regulatory authority for purposes of Sec. 23.160(c)(1)(ii). --------------------------------------------------------------------------- II. Cross-Border Margin Rule A. Regulatory Objective of Margin Requirements The regulatory objective of the Final Margin Rule is to further the congressional mandate to ensure the safety and soundness of CSEs in order to offset the greater risk to CSEs and the financial system arising from the use of swaps that are not cleared.\7\ As the Commission has previously stated, the primary function of margin is to protect a CSE from counterparty default, allowing it to absorb losses and continue to meet its obligations using collateral provided by the defaulting counterparty. While the requirement to post margin protects the counterparty in the event of the CSE's default, it also functions as a risk management tool, limiting the amount of leverage a CSE can utilize by requiring that it have adequate eligible collateral to enter into an uncleared swap. In this way, margin serves as a first line of defense not only in protecting the CSE but in containing the amount of risk in the financial system as a whole, reducing the potential for contagion arising from uncleared swaps.\8\ --------------------------------------------------------------------------- \7\ See 7 U.S.C. 6s(e)(3)(A). \8\ See Final Margin Rule, 81 FR 689. --------------------------------------------------------------------------- However, the global nature of the swap market, coupled with the interconnectedness of market participants, also necessitate that the Commission recognize the supervisory interests of foreign regulatory authorities and consider the impact of its choices on market efficiency and competition, which the Commission believes are vital to a well- functioning global swap market.\9\ Foreign jurisdictions are at various stages of implementing margin reforms. To the extent that other jurisdictions adopt requirements with different coverage or timelines, the Commission's margin requirements may lead to competitive burdens for U.S. entities and deter non-U.S. persons from transacting with U.S. CSEs and their affiliates overseas. --------------------------------------------------------------------------- \9\ In determining the extent to which the Dodd-Frank swap provisions apply to activities overseas, the Commission strives to protect U.S. interests, as determined by Congress in Title VII, and minimize conflicts with the laws of other jurisdictions, consistent with principles of international comity. See Guidance, 78 FR 45300- 45301 (referencing the Restatement (Third) of Foreign Relations Law of the United States). --------------------------------------------------------------------------- B. Substituted Compliance To address these concerns, the Cross-Border Margin Rule provides that, subject to certain findings and conditions, a CSE is permitted to satisfy the requirements of the Final Margin Rule by complying with the margin requirements in the relevant foreign jurisdiction. This substituted compliance regime is intended to address the concerns discussed above without compromising the congressional mandate to protect the safety and soundness of CSEs and the stability of the U.S. financial system. Substituted compliance helps preserve the benefits of an integrated, global swap market by reducing the degree to which market participants will be subject to multiple sets of regulations. Further, substituted compliance builds on international efforts to develop a global margin framework.\10\ --------------------------------------------------------------------------- \10\ In October 2011, the Basel Committee on Banking Supervision (``BCBS'') and the International Organization of Securities Commissions (``IOSCO''), in consultation with the Committee on Payment and Settlement Systems and the Committee on Global Financial Systems, formed a Working Group on Margining Requirements to develop international standards for margin requirements for uncleared swaps. Representatives of 26 regulatory authorities participated, including the Commission. In September 2013, the Working Group on Margin Requirements published a final report articulating eight key principles for non-cleared derivatives margin rules. These principles represent the minimum standards approved by BCBS and IOSCO and their recommendations to the regulatory authorities in member jurisdictions. See BCBS/IOSCO, Margin requirements for non- centrally cleared derivatives (updated March 2015) (``BCBS/IOSCO Framework''), available at http://www.bis.org/bcbs/publ/d317.pdf. --------------------------------------------------------------------------- Pursuant to the Cross-Border Margin Rule, any CSE that is eligible for substituted compliance under Sec. 23.160 \11\ and any foreign regulatory authority that has direct supervisory authority over one or more CSEs and that is responsible for administering the relevant foreign jurisdiction's margin requirements may apply to the Commission for a comparability determination.\12\ --------------------------------------------------------------------------- \11\ See Sec. 23.160(c)(1)(i). \12\ See Sec. 23.160(c)(1)(ii). --------------------------------------------------------------------------- The Cross-Border Margin Rule requires that applicants for a comparability determination provide copies of the relevant foreign jurisdiction's margin requirements \13\ and descriptions of their objectives,\14\ how they differ from the BCBS/IOSCO Framework,\15\ and how they address the elements of the Commission's margin requirements.\16\ The applicant must identify the specific legal and regulatory provisions of the foreign jurisdiction's margin requirements that correspond to each element and, if necessary, whether the relevant foreign jurisdiction's margin requirements do not address a particular element.\17\ --------------------------------------------------------------------------- \13\ See Sec. 23.160(c)(2)(v). \14\ See Sec. 23.160(c)(2)(i). \15\ See Sec. 23.160(c)(2)(iii). See also Sec. 23.160(a)(3) (defining ``international standards'' as based on the BCBS-ISOCO Framework). \16\ See 17 CFR 23.160(c)(2)(ii) (identifying 12 particular elements of the Commission's margin requirements). Section 23.160(c)(2)(ii) largely tracks the elements of the BCBS/IOSCO Framework but breaks them down into their components as appropriate to ensure ease of application. \17\ See id. --------------------------------------------------------------------------- C. Standard of Review for Comparability Determinations The Cross-Border Margin Rule identifies certain key factors that the Commission will consider in making a comparability determination. Specifically, the Commission will consider the scope and objectives of the relevant foreign jurisdiction's margin requirements; \18\ whether the relevant foreign jurisdiction's margin requirements achieve comparable outcomes to the Commission's [[Page 48396]] corresponding margin requirements; \19\ and the ability of the relevant regulatory authority or authorities to supervise and enforce compliance with the relevant foreign jurisdiction's margin requirements.\20\ --------------------------------------------------------------------------- \18\ See Sec. 23.160(c)(3)(i). \19\ See Sec. 23.160(c)(3)(ii). As discussed above, the Commission's Final Margin Rule is based on the BCBS/IOSCO Framework; therefore, the Commission expects that the relevant foreign margin requirements would conform to such Framework at minimum in order to be deemed comparable to the Commission's corresponding margin requirements. \20\ See Sec. 23.160(c)(3)(iii). See also Sec. 23.160(c)(3)(iv) (indicating the Commission would also consider any other relevant facts and circumstances). --------------------------------------------------------------------------- This process reflects an outcomes-based approach to assessing the comparability of a foreign jurisdiction's margin requirements. Instead of demanding strict uniformity with the Commission's margin requirements, the Commission evaluates the objectives and outcomes of the foreign margin requirements in light of foreign regulator(s)' supervisory and enforcement authority. Recognizing that jurisdictions may adopt different approaches to achieving the same outcome, the Commission will focus on whether the foreign jurisdiction's margin requirements are comparable to the Commission's in purpose and effect, not whether they are comparable in every aspect or contain identical elements. In keeping with the Commission's commitment to international coordination on margin requirements for uncleared derivatives, the Commission believes that the standards it has established are fully consistent with the BCBS/IOSCO Framework.\21\ Accordingly, where relevant to the Commission's comparability analysis, the BCBS/IOSCO Framework is discussed to explain certain internationally agreed upon concepts. --------------------------------------------------------------------------- \21\ The Final Margin Rule was modified substantially from its proposed form to further align the Commission's margin requirements with the BCBS/IOSCO Framework and, as a result, the potential for conflict with foreign margin requirements should be reduced. For example, the Final Margin Rule raised the material swaps exposure level from $3 billion to the BCBS/IOSCO standard of $8 billion, which reduces the number of entities that must collect and post initial margin. See Final Margin Rule, 81 FR at 644. In addition, the definition of uncleared swap was amended to not include swaps cleared by derivatives clearing organizations that are not registered with the Commission but pursuant to Commission orders are permitted to clear for U.S. persons. See id. at 638. The Commission notes, however, that the BCBS/IOSCO Framework leaves certain elements open to interpretation (e.g., the definition of ``derivative'') and expressly invites regulators to build on certain principles as appropriate. See, e.g., Element 4 (eligible collateral) (national regulators should ``develop their own list of eligible collateral assets based on the key principle, taking into account the conditions of their own markets''); Element 5 (initial margin) (the degree to which margin should be protected would be affected by ``the local bankruptcy regime, and would vary across jurisdictions''); Element 6 (transactions with affiliates) (``Transactions between a firm and its affiliates should be subject to appropriate regulation in a manner consistent with each jurisdiction's legal and regulatory framework.''). --------------------------------------------------------------------------- The Cross-Border Margin Rule provided a detailed discussion regarding the facts and circumstances under which substituted compliance for the requirements under the Final Margin Rule would be available and such discussion is not repeated here. CSEs seeking to rely on substituted compliance based on the comparability determinations contained herein are responsible for determining whether substituted compliance is available under the Cross-Border Margin Rule with respect to the CSE's particular status and circumstances. D. Conditions to Comparability Determinations The Cross-Border Margin Rule provides that the Commission may impose terms and conditions it deems appropriate in issuing a comparability determination.\22\ Specific terms and conditions with respect to margin requirements are discussed in the Commission's determinations detailed below. --------------------------------------------------------------------------- \22\ See 17 CFR 23.160(c)(5). --------------------------------------------------------------------------- As a general condition to all determinations, however, the Commission requires notification of any material changes to information submitted to the Commission by the applicant in support of a comparability finding, including, but not limited to, changes in the relevant foreign jurisdiction's supervisory or regulatory regime. The Commission also expects that the relevant foreign regulator will enter into, or will have entered into, an appropriate memorandum of understanding or similar arrangement with the Commission in connection with a comparability determination.\23\ --------------------------------------------------------------------------- \23\ Under Commission regulations 23.203 and 23.606, CSEs must maintain all records required by the CEA and the Commission's regulations in accordance with Commission regulation 1.31 and keep them open for inspection by representatives of the Commission, the U.S. Department of Justice, or any applicable prudential regulator. See 17 CFR 23.203, 23.606. The Commission further expects that prompt access to books and records and the ability to inspect and examine a non-U.S. CSE will be a condition to any comparability determination. --------------------------------------------------------------------------- Finally, the Commission will generally rely on an applicant's description of the laws and regulations of the foreign jurisdiction in making its comparability determination. The Commission considers an application to be a representation by the applicant that the laws and regulations submitted are finalized,\24\ that the description of such laws and regulations is accurate and complete, and that, unless otherwise noted, the scope of such laws and regulations encompasses the swaps activities \25\ of CSEs \26\ in the relevant jurisdictions.\27\ Further, the Commission requires that an applicant would notify the Commission of any material changes to information submitted in support of a comparability determination (including, but not limited to, changes in the relevant supervisory or regulatory regime) as, depending on the nature of the change, the Commission's comparability determination may no longer be valid.\28\ --------------------------------------------------------------------------- \24\ The Commission notes that finalized rules of the foreign jurisdiction must be in full force and effect before a CSE may rely on this comparability determination for purposes of substituted compliance. \25\ ``Swaps activities'' is defined in Commission regulation 23.600(a)(7) to mean, ``with respect to a registrant, such registrant's activities related to swaps and any product used to hedge such swaps, including, but not limited to, futures, options, other swaps or security-based swaps, debt or equity securities, foreign currency, physical commodities, and other derivatives.'' The Commission's regulations under 17 CFR part 23 are limited in scope to the swaps activities of CSEs. \26\ No CSE that is not legally required to comply with a law or regulation determined to be comparable may voluntarily comply with such law or regulation in lieu of compliance with the CEA and the relevant Commission regulation. Each CSE that seeks to rely on a comparability determination is responsible for determining whether it is subject to the laws and regulations found comparable. \27\ The Commission has provided the relevant foreign regulator(s) with opportunities to review and correct the applicant's description of such laws and regulations on which the Commission will base its comparability determination. The Commission relies on the accuracy and completeness of such review and any corrections received in making its comparability determinations. A comparability determination based on an inaccurate description of foreign laws and regulations may not be valid. \28\ 78 FR 45345. --------------------------------------------------------------------------- III. Margin Requirements for Swaps Activities in the EU As represented to the Commission by the applicant, margin requirements for swap activities in the EU are governed by the Regulatory Technical Standards for Risk-Mitigation Techniques for OTC Derivative Contracts Not Cleared by a Central Counterparty (``RTS'').\29\ The RTS supplement the requirements of EMIR with a more detailed direction [[Page 48397]] with respect to margin requirements \30\ and are directly applicable in all countries that are members of the EU (each country a ``Member State''). Article 12 of EMIR further gives Member States the authority to ``lay down the rules on penalties'' that apply to infringements of the RTS and to take all measures necessary to ensure that those rules are implemented.\31\ --------------------------------------------------------------------------- \29\ Regulation No. 2016/2251 of October 4, 2016 Supplementing Regulation (EU) No 648/2012 of the European Parliament and of the Council of July 4, 2012 on OTC Derivatives, Central Counterparties and Trade Repositories with Regard to Regulatory Technical Standards for Risk-Mitigation Techniques for OTC Derivative Contracts Not Cleared by a Central Counterparty (as corrected by Commission Delegated Regulation (EU) 2017/323 of January 20, 2017). Regulation (EU) No 648/2012 of the European Parliament and the Council of July 4, 2012 is more commonly known as the European Market Infrastructure Regulation or ``EMIR.'' \30\ Together, EMIR and RTS are referred to herein as the ``EU margin rules,'' ``the EU's margin regime,'' ``EU margin requirements'' or the ``laws of the EU.'' \31\ See RTS, Article 40 and EMIR, Article 12(1). --------------------------------------------------------------------------- IV. Comparability Analysis The following section describes the regulatory objectives of the Commission's requirements with respect to margin for uncleared swaps imposed by the CEA and the Final Margin Rule and a description of such requirements. Immediately following a description of the requirement(s) of the Final Margin Rule for which a comparability determination was requested by the applicant, the Commission provides a description of the foreign jurisdiction's comparable laws, regulations, or rules. The Commission then provides a discussion of the comparability of, or differences between, the Final Margin Rule and the foreign jurisdiction's laws, regulations, or rules. A. Objectives of Margin Requirements 1. Commission Statement of Regulatory Objectives The regulatory objectives of the Final Margin Rule are to ensure the safety and soundness of CSEs in order to offset the greater risk to CSEs and the financial system arising from the use of swaps that are not cleared. The primary function of margin is to protect a CSE from counterparty default, allowing it to absorb losses and continue to meet its obligations using collateral provided by the defaulting counterparty. While the requirement to post margin protects the counterparty in the event of the CSE's default, it also functions as a risk management tool, limiting the amount of leverage a CSE can incur by requiring that it have adequate eligible collateral to enter into an uncleared swap. In this way, margin serves as a first line of defense, not only in protecting the CSE, but in containing the amount of risk in the financial system as a whole, reducing the potential for contagion arising from uncleared swaps.\32\ --------------------------------------------------------------------------- \32\ See Cross-Border Margin Rule, 81 FR 34819. --------------------------------------------------------------------------- 2. EC Statement of Regulatory Objectives The applicant states that, in the absence of clearing of OTC derivatives by a CCP, it is essential that counterparties apply robust risk-mitigation techniques to their bilateral relationships to reduce counterparty credit risk and to mitigate the potential systemic risk that could arise. Article 11 of EMIR prescribes risk-mitigation techniques for OTC derivative contracts not cleared by a CCP. The RTS supplement EMIR with regard to regulatory technical standards for risk- mitigation techniques for OTC derivative contracts not cleared by a CCP and take into account the Basel Committee-IOSCO margin framework for non-centrally cleared OTC derivatives and the Basel Committee guidelines for managing settlement risk in foreign exchange transactions.\33\ --------------------------------------------------------------------------- \33\ See RTS, Explanatory Memorandum at 3. --------------------------------------------------------------------------- B. Products Subject to Margin Requirements The Commission's Final Margin Rule applies only to uncleared swaps. Swaps are defined in section 1a(47) of the CEA \34\ and Commission regulations.\35\ ``Uncleared swap'' is defined for purposes of the Final Margin Rule in Commission regulation Sec. 23.151 to mean a swap that is not cleared by a registered derivatives clearing organization, or by a clearing organization that the Commission has exempted from registration by rule or order pursuant to section 5b(h) of the Act.\36\ --------------------------------------------------------------------------- \34\ 7 U.S.C. 1a(47). \35\ See, e.g., Sec. 1.3(xxx), 17 CFR 1.3(xxx). \36\ 17 CFR 23.151. --------------------------------------------------------------------------- The EU's margin rules apply to OTC derivatives not cleared by a CCP (``non-centrally cleared OTC derivative'').\37\ ``Derivative'' for purposes of the EU margin rules is defined in Article 2(5) of EMIR as a financial instrument as set out in points (4) to (10) of Section C of Annex I to MIFID \38\ as implemented by Articles 38 and 39 of EU Regulation No. 1287/2006.\39\ Initial margin need not be collected for physically-settled foreign exchange forwards, physically-settled foreign exchange swaps, or cross-currency swaps.\40\ Regarding covered bonds for hedging purposes, no variation margin needs to be posted by a covered bond issuer or covered pool but must be collected from a counterparty in cash and returned to a counterparty when due, and no initial margin required.\41\ --------------------------------------------------------------------------- \37\ See EMIR, Article 11(1) and RTS, Recital (1). CCP is defined in Article 2(1) of EMIR to mean ``a legal person that interposes itself between the counterparties to the contracts traded on one or more financial markets, becoming the buyer to every seller and the seller to every buyer.'' \38\ Under MiFID, such financial instruments are: (4) Options, futures, swaps, forward rate agreements and any other derivative contracts relating to securities, currencies, interest rates or yields, or other derivatives instruments, financial indices or financial measures which may be settled physically or in cash; (5) Options, futures, swaps, forward rate agreements and any other derivative contracts relating to commodities that must be settled in cash or may be settled in cash at the option of one of the parties (otherwise than by reason of a default or other termination event); (6) Options, futures, swaps, and any other derivative contract relating to commodities that can be physically settled provided that they are traded on a regulated market and/or an MTF; (7) Options, futures, swaps, forwards and any other derivative contracts relating to commodities, that can be physically settled not otherwise mentioned in C.6 and not being for commercial purposes, which have the characteristics of other derivative financial instruments, having regard to whether, inter alia, they are cleared and settled through recognised clearing houses or are subject to regular margin calls; (8) Derivative instruments for the transfer of credit risk; (9) Financial contracts for differences; (10) Options, futures, swaps, forward rate agreements and any other derivative contracts relating to climatic variables, freight rates, emission allowances or inflation rates or other official economic statistics that must be settled in cash or may be settled in cash at the option of one of the parties (otherwise than by reason of a default or other termination event), as well as any other derivative contracts relating to assets, rights, obligations, indices and measures not otherwise mentioned in this Section, which have the characteristics of other derivative financial instruments, having regard to whether, inter alia, they are traded on a regulated market or an MTF, are cleared and settled through recognised clearing houses or are subject to regular margin calls. See MiFID, Annex I, Section C(4)- (10). \39\ Article 38 of EU Regulation No. 1287/2006 further defines the financial instruments described in Point (7) of Section C of Annex I to MiFID to generally be physically-settled FX forwards and swaps. Article 39 of EU Regulation No. 1287/2006 further refines the definition of financial instruments described in Point (10) of Section C of Annex I to MiFID to generally be exchanges of principal of currency swaps. \40\ See RTS, Article 27. \41\ See RTS, Article 30. --------------------------------------------------------------------------- An OTC derivative is a derivative which is not executed on a regulated market or on a third-country market considered as equivalent to a regulated market.\42\ While it is beyond the scope of this comparability determination to definitively map any differences between the definitions of ``swap'' and ``uncleared swap'' under the CEA and Commission regulations and the EU's definitions of ``OTC derivative'' and ``non-centrally cleared OTC derivative,'' the Commission believes that such definitions largely cover the same products and instruments. --------------------------------------------------------------------------- \42\ See EMIR, Article 2(7). --------------------------------------------------------------------------- However, because the definitions are not identical, the Commission recognizes the possibility that a CSE may enter into a transaction that is an uncleared swap as defined in the CEA and Commission regulations, but that is not a non-centrally cleared OTC [[Page 48398]] derivative as defined under the laws of the EU. In such cases, the Final Margin Rule would apply to the transaction but the EU's margin rules would not apply and thus, substituted compliance would not be available. The CSE could not choose to comply with the EU's margin rules in place of the Final Margin Rule. Likewise, if a transaction is a non-centrally cleared OTC derivative as defined under the laws of the EU but not an uncleared swap subject to the Final Margin Rule, a CSE could not choose to comply with the Final Margin Rule pursuant to this determination, unless the EU determines that it will permit the EU entity to follow the Commission's margin requirements. CSEs are solely responsible for determining whether a particular transaction is both an uncleared swap and a non-centrally cleared OTC derivative before relying on substituted compliance under the comparability determinations set forth below. C. Entities Subject to Margin Requirements As stated previously, the Commission's Final Margin Rule and Cross- Border Margin Rule apply only to CSEs, i.e., SDs and MSPs registered with the Commission for which there is not a Prudential Regulator.\43\ Thus, only such CSEs may rely on the determinations herein for substituted compliance, while CSEs for which there is a Prudential Regulator must look to the determinations of the Prudential Regulators. --------------------------------------------------------------------------- \43\ See 7 U.S.C. 6s(e)(1)(B). SDs and MSPs for which there is a Prudential Regulator must meet the margin requirements for uncleared swaps established by the applicable Prudential Regulator. 7 U.S.C. 6s(e)(1)(A). See also 7 U.S.C. 1a(39) (defining the term ``Prudential Regulator'' to include the Board of Governors of the Federal Reserve System; the Office of the Comptroller of the Currency; the Federal Deposit Insurance Corporation; the Farm Credit Administration; and the Federal Housing Finance Agency). The Prudential Regulators published final margin requirements in November 2015. See Prudential Regulators' Final Margin Rule, 80 FR 74840 (Nov. 30, 2015). --------------------------------------------------------------------------- CSEs are not required to collect and/or post margin with every uncleared swap counterparty. Under the Final Margin Rule, the initial margin obligations of CSEs apply only to uncleared swaps with counterparties that meet the definition of ``covered counterparty'' in Sec. 23.151.\44\ Such definition provides that a ``covered counterparty'' is a counterparty that is a financial end user \45\ with material swaps exposure \46\ or a swap entity \47\ that enters into a swap with a CSE. The variation margin obligations of CSEs under the Final Margin Rule apply more broadly. Such obligations apply to counterparties that are swap entities and all financial end users, regardless of their level of material swaps exposure.\48\ --------------------------------------------------------------------------- \44\ See Sec. 23.152. \45\ See definition of ``Financial end user'' in Sec. 23.150. \46\ See Sec. 23.150, which states that ``material swaps exposure'' for an entity means that the entity and its margin affiliates have an average daily aggregate notional amount of uncleared swaps, uncleared security-based swaps, foreign exchange forwards, and foreign exchange swaps with all counterparties for June, July and August of the previous calendar year that exceeds $8 billion, where such amount is calculated only for business days. That provision further states that an entity shall count the average daily aggregate notional amount of an uncleared swap, an uncleared security-based swap, a foreign exchange forward, or a foreign exchange swap between the entity and a margin affiliate only one time. For purposes of this calculation, an entity shall not count a swap that is exempt pursuant to Sec. 23.150(b) or a security-based swap that qualifies for an exemption under section 3C(g)(10) of the Securities Exchange Act of 1934 (15 U.S.C. 78c-3(g)(4)) and implementing regulations or that satisfies the criteria in section 3C(g)(1) of the Securities Exchange Act of 1934 (15 U.S.C. 78- c3(g)(4)) and implementing regulations. \47\ ``Swap entity'' is defined in Sec. 23.150 as a person that is registered with the Commission as a swap dealer or major swap participant pursuant to the Act. \48\ See Sec. 23.153. --------------------------------------------------------------------------- As represented by the applicant, the EU's margin rules apply to all financial counterparties, which include investment firms, credit institutions, insurance companies, and alternative investment funds that are authorized or registered in accordance with various EU directives (``FC'').\49\ CCPs not authorized as credit institutions are outside the scope of Article 11 of EMIR and CCPs authorized as credit institutions are exempt from the RTS.\50\ The EU's margin rules also apply to non-financial counterparties (any EU entity other than an FC or a CCP \51\) (``NFC'') that are above a certain clearing threshold (``NFC+'').\52\ Under the EU rules, no margin is required for non- centrally cleared OTC derivatives with NFCs that fall below the clearing threshold (``NFC-'') or non-EU entities that would be NFC-s if established in the EU.\53\ However, under the EU margin rules, counterparties must take into account the different risk profiles of NFC-s when entering into non-centrally cleared OTC derivatives with such counterparties and determine whether or not the level of counterparty credit risk posed by those NFC-s needs to be mitigated through the exchange of collateral.\54\ Like the Final Margin Rule, the EU margin rules include a threshold under which initial margin requirements will not apply, while the variation margin requirements apply more broadly.\55\ --------------------------------------------------------------------------- \49\ See EMIR, Article 11 (Risk-Mitigation Techniques for OTC Derivative Contracts Not Cleared by a CCP). While the definition of ``financial counterparty'' under EMIR includes credit institutions authorized in accordance with Directive 2006/48/EU, CCPs that are authorized as credit institutions are exempted from the EU's margin rules. See RTS, Article 23. As explained in the RTS, since CCPs might be authorized as a credit institution according to Union legislation, it is necessary to excluded non-centrally cleared OTC derivative contracts that CCPs enter into during a default management process from the requirements of this Regulation since those contracts are already subject to the provisions of Commission Delegated Regulation (EU) No 153/2013 and therefore they are not subject to the provisions of these Regulations. \50\ See RTS, Article 23. \51\ See EMIR, Article 2(9). \52\ See EMIR, Article 11(3) (``[NFCs] . . . shall have risk- management procedures that require the timely, accurate and appropriately segregated exchange of collateral with respect to OTC derivative contracts that are entered into on or after the clearing threshold is exceeded.''). The clearing threshold values are measured by asset class as follows: (a) EUR 1 billion in gross notional value for OTC credit derivative contracts; (b) EUR 1 billion in gross notional value for OTC equity derivative contracts; (c) EUR 3 billion in gross notional value for OTC interest rate derivative contracts; (d) EUR 3 billion in gross notional value for OTC foreign exchange derivative contracts; (e) EUR 3 billion in gross notional value for OTC commodity derivative contracts and other OTC derivative contracts not provided for under points (a) to (d). See Article 11 of Commission Delegated Regulation (EU) No 149/ 2013 of December 19, 2012 Supplementing EMIR with Regard to Regulatory Technical Standards on Indirect Clearing Arrangements, the Clearing Obligation, the Public Register, Access to a Trading Venue, Non-Financial Counterparties, and Risk Mitigation Techniques for Uncleared OTC Derivatives (pursuant to Article 10(4)(b) of EMIR). \53\ See RTS, Article 24. \54\ See RTS, Recital (2). \55\ See RTS, Article 28, stating: Counterparties may provide in their risk management procedures that initial margins are not collected for all new OTC derivative contracts entered into within a calendar year where one of the two counterparties has an aggregate month-end average notional amount of non-centrally cleared OTC derivatives for the months March, April and May of the preceding year of below EUR 8 billion. The aggregate month-end average notional amount referred to in the first subparagraph shall be calculated at the counterparty level or at the group level where the counterparty belongs to a group. --------------------------------------------------------------------------- Given the definitional differences and differences in activity thresholds with respect to the scope of application of the Final Margin Rule and the EU's margin requirements, the Commission notes the possibility that the Final Margin Rule and the EU's margin rules may not apply to every uncleared swap that a CSE may enter into with a EU counterparty. For example, it appears possible that a financial end user with ``material swaps exposure'' would meet the definition of ``covered counterparty'' under the Final Margin Rule (and thus the initial and variation margin [[Page 48399]] requirements) while at the same time fall under the EU's clearing threshold (an NFC-) and not be subject the EU margin requirements. It may also be possible that the Final Margin Rule's definition of ``financial end user'' could capture an entity that is an NFC under the EU's margin regime. With these differences in scope in mind, the Commission reiterates that no CSE may rely on substituted compliance unless it and its transaction are subject to both the Final Margin Rule and the EU's margin rules; a CSE may not voluntarily comply with the EU's margin rules where such law does not otherwise apply. Likewise, a CSE that is not seeking to rely on substituted compliance should understand that the EU's margin rules may apply to its counterparty irrespective of the CSE's decision to comply with the Final Margin Rule. D. Treatment of Inter-Affiliate Derivative Transactions The BCBS/IOSCO Framework recognizes that the treatment of inter- affiliate derivative transactions will vary between jurisdictions. Thus, the BCBS/IOSCO Framework does not set standards with respect to the treatment of inter-affiliate transactions. Rather, it recommends that regulators in each jurisdiction review their own legal frameworks and market conditions and put in place margin requirements applicable to inter-affiliate transactions as appropriate.\56\ --------------------------------------------------------------------------- \56\ See BCBS/IOSCO Framework, Element 6: Treatment of transactions with affiliates. --------------------------------------------------------------------------- 1. Commission Requirements for Treatment of Inter-Affiliate Transactions The Commission determined through its Final Margin Rule to provide rules for swaps between ``margin affiliates.'' In defining ``margin affiliate,'' those rules provide that a company is a margin affiliate of another company if: (1) Either company consolidates the other on a financial statement prepared in accordance with U.S. Generally Accepted Accounting Principles, the International Financial Reporting Standards, or other similar standards; (2) both companies are consolidated with a third company on a financial statement prepared in accordance with such principles or standards; or (3) for a company that is not subject to such principles or standards, if consolidation as described in (1) or (2) would have occurred if such principles or standards had applied.\57\ --------------------------------------------------------------------------- \57\ Sec. 23.151. --------------------------------------------------------------------------- With respect to swaps between margin affiliates, the Final Margin Rule, with one exception explained below, provides that a CSE is not required to collect initial margin \58\ from a margin affiliate provided that the CSE meets the following conditions: (i) The 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 (ii) the CSE exchanges variation margin with the margin affiliate.\59\ --------------------------------------------------------------------------- \58\ ``Initial margin'' is margin exchanged to protect against a potential future exposure and is defined in Sec. 23.151 to mean the collateral, as calculated in accordance with Sec. 23.154 that is collected or posted in connection with one or more uncleared swaps. \59\ See Sec. 23.159(a). --------------------------------------------------------------------------- In an exception to the foregoing general rule, the Final Margin Rule does require CSEs to collect initial margin from non-U.S. affiliates that are financial end users that are not subject to initial margin collection requirements on their own outward-facing swaps with financial end users that are not comparable in outcome to the Final Margin Rule.\60\ This provision is an important anti-evasion measure. It is designed to prevent the potential use of affiliates to avoid collecting initial margin from third parties. For example, suppose that an unregistered non-U.S. affiliate of a CSE enters into a swap with a financial end user and does not collect initial margin. Suppose further that the affiliate then enters into a swap with the CSE. Effectively, the risk of the swap with the third party would have been passed to the CSE without any initial margin. The rule would require this affiliate to post initial margin with the CSE in such cases. The rule would further require that the CSE collect initial margin even if the affiliate routed the trade through one or more other affiliates.\61\ --------------------------------------------------------------------------- \60\ See Sec. 23.159(c). \61\ See id. --------------------------------------------------------------------------- The Commission has stated that its inter-affiliate initial margin requirement is consistent with its goal of harmonizing its margin rules as much as possible with the BCBS/IOSCO Framework. Such Framework, for example, states that the exchange of initial and variation margin by affiliated parties ``is not customary'' and that initial margin in particular ``would likely create additional liquidity demands.'' \62\ With an understanding that many authorities, such as those in Europe and Japan, are not expected to require initial margin for inter- affiliate swaps, the Commission recognized that requiring the posting and collection of initial margin for inter-affiliate swaps generally would be likely to put CSEs at a competitive disadvantage to firms in other jurisdictions. --------------------------------------------------------------------------- \62\ See BCBS/IOSCO Framework, Element 6: Treatment of transactions with affiliates. --------------------------------------------------------------------------- The Final Margin Rule however, does require CSEs to exchange variation margin with affiliates that are SDs, MSPs, or financial end users (as is also required under the Prudential Regulators' rules).\63\ The Commission stated that marking open positions to market each day and requiring the posting or collection of variation margin reduces the risks of inter-affiliate swaps. --------------------------------------------------------------------------- \63\ See Sec. 23.159(b); see also Prudential Regulators' Final Margin Rule, 80 FR 74909. --------------------------------------------------------------------------- 2. Requirement for Treatment of Inter-Affiliate Derivatives Under the Laws of the EU Under Article 11 of EMIR, the EU's margin requirements generally apply to intragroup transactions as defined in Article 3 of EMIR. Such ``intragroup transactions'' are defined differently for intragroup transactions in relation to an FC (``FC Intragroup Transactions'') \64\ and intragroup transactions in relation to an NFC (``NFC Intragroup Transactions'' and, together with FC Intragroup Transactions, ``Intragroup Transactions'').\65\ What the EU defines [[Page 48400]] as Intragroup Transactions is generally in keeping with the Commission's definition of ``margin affiliate'' for purposes of the Final Margin Rule, discussed above. --------------------------------------------------------------------------- \64\ Article 3(2) of EMIR defines an ``intragroup transaction'' for an FC to be: (a) An OTC derivative contract entered into with another counterparty which is part of the same group, provided that the following conditions are met: (i) The financial counterparty is established in the Union or, if it is established in a third country, the Commission has adopted an implementing act under Article 13(2) in respect of that third country; (ii) the other counterparty is a financial counterparty, a financial holding company, a financial institution or an ancillary services undertaking subject to appropriate prudential requirements; (iii) both counterparties are included in the same consolidation on a full basis; and (iv) both counterparties are subject to appropriate centralised risk evaluation, measurement and control procedures; (b) an OTC derivative contract entered into with another counterparty where both counterparties are part of the same institutional protection scheme, referred to in Article 80(8) of Directive 2006/48/EC, provided that the condition set out in point (a)(ii) of this paragraph is met; (c) an OTC derivative contract entered into between credit institutions affiliated to the same central body or between such credit institution and the central body, as referred to in Article 3(1) of Directive 2006/48/EC; or (d) an OTC derivative contract entered into with a non-financial counterparty which is part of the same group provided that both counterparties are included in the same consolidation on a full basis and they are subject to an appropriate centralised risk evaluation, measurement and control procedures and that counterparty is established in the Union or in a third-country jurisdiction for which the Commission has adopted an implementing act as referred to in Article 13(2) in respect of that third country. \65\ Article 3(1) of EMIR defines an ``intragroup transaction'' for an NFC to be: [A]n OTC derivative contract entered into with another counterparty which is part of the same group provided that both counterparties are included in the same consolidation on a full basis and they are subject to an appropriate centralised risk evaluation, measurement and control procedures and that counterparty is established in the Union or, if it is established in a third country, the Commission has adopted an implementing act under Article 13(2) in respect of that third country. --------------------------------------------------------------------------- For Intragroup Transactions between counterparties established in the same Member State, no margin requirements will apply, but only as long as there is no legal impediment to the prompt transfer of own funds or repayment of liabilities between counterparties.\66\ A legal impediment to the prompt transfer of own funds and repayment of liabilities shall be deemed to exist where there are actual or foreseen restrictions of a legal nature.\67\ --------------------------------------------------------------------------- \66\ See EMIR, Article 11(5); see also RTS, Article 33 (Applicable Criteria for the Legal Impediment to the Prompt Transfer of Own Funds and Repayment of Liabilities). \67\ See RTS, Article 33. Such restrictions include: (a) Currency and exchange controls; (b) a regulatory, administrative, legal or contractual framework that prevents mutual financial support or significantly affects the transfer of funds within the group; (c) any of the conditions on the early intervention, recovery and resolution as referred to in Directive 2014/59/EU of the European Parliament and of the Council (1) are met, as a result of which the competent authority foresees an impediment to the prompt transfer of own funds or repayment of liabilities; (d) the existence of minority interests that limit decision- making power within entities that form the group; (e) the nature of the legal structure of the counterparty, as defined in its statutes, instruments of incorporation and internal rules. See RTS, Article 33(a)-(e). --------------------------------------------------------------------------- For Intragroup Transactions between counterparties established in different Member States, the EU margin rules generally provide, depending on the nature and location of the counterparties, that such Intragroup Transactions may be excluded from the EU margin requirements but only if, in addition to there being no current or legal impediment to the prompt transfer of own funds or repayment of liabilities between the counterparties, the counterparties (i) have risk management procedures that are sound, robust, and consistent with the level of complexity of the derivative transaction, and (ii) in keeping with the procedures established under the RTS,\68\ the counterparties have notified the relevant competent authority \69\ or authorities of the intention to use the exemption and the authority or authorities have reached a positive decision to allow the exemption.\70\ The counterparties to an exempted Intragroup Transaction must publicly disclose information about the exemption.\71\ --------------------------------------------------------------------------- \68\ See RTS, Article 32. \69\ See EMIR, Article 2(13) for the definition of ``competent authority'' for purposes of the RTS. \70\ See EMIR, Article 11(6) to (10). \71\ See EMIR, Article 11(11). --------------------------------------------------------------------------- Where one of the two counterparties in the group is domiciled in a third-country for which an equivalence determination under Article 13(2) of EMIR has not yet been provided, the group has to exchange variation and appropriately segregated initial margins for all the Intragroup Transactions with the subsidiaries in those third- countries.\72\ However, the requirements are delayed for three years in these cases.\73\ This is to allow enough time for completion of the process to produce the equivalence determinations, while not requiring an inefficient allocation of resources to the groups with subsidiaries domiciled in third-countries.\74\ Where an equivalence decision has been made, counterparties may then apply for an exemption pursuant to the timing and process established under EMIR and the RTS.\75\ --------------------------------------------------------------------------- \72\ See RTS, Recital (40). \73\ See RTS, Articles 36 and 37. \74\ See RTS, Recital (40). \75\ See RTS, Articles 36 and 37. --------------------------------------------------------------------------- 3. Commission Determination Having compared the outcomes of the EU's margin requirements applicable to Intragroup Transactions to the outcomes of the Commission's corresponding margin requirements applicable to inter- affiliate swaps, the Commission finds that the treatment of inter- affiliate transactions under the Final Margin Rule and under the EU's margin requirements are comparable in outcome. A CSE entering into a transaction with a consolidated affiliate under the Final Margin Rule would be required to exchange variation margin in accordance with Sec. Sec. 23.151 through 23.161, and in certain circumstances, collect initial margin in accordance with Sec. 23.159(c). The Commission continues to deem this provision an important anti-evasion measure, designed to prevent the potential use of affiliates to avoid collecting initial margin from third parties.\76\ In adopting its Final Margin Rule, the Commission recognized that, in absence of proper anti-evasion measures, a CSE could import risk from another jurisdiction, one with potentially less stringent margin protections, through inter-affiliate trades.\77\ In analyzing the EU's margin rules, the Commission specifically notes that the EU margin rules will apply to inter-affiliate trades involving an affiliate that is established in a third-country (non-EU) jurisdiction, unless specifically excluded. Any exclusion from the EU margin rules is subject to an application process, which would require a finding that the relevant non-EU jurisdiction's margin requirements are equivalent. This comparability requirement provides protection to the consolidated entity, as the consolidated entity would not be able to import risk from third country jurisdictions that are not equivalent, without posting and collecting initial margin and exchanging variation margin. Therefore, the Commission believes that the EU's review process for finding comparability in third-country jurisdictions addresses the Commission's anti-evasion concerns relating to inter-affiliate transactions. --------------------------------------------------------------------------- \76\ See Final Margin Rule, 81 FR 674. \77\ See id. --------------------------------------------------------------------------- In addition, where a CSE and its inter-affiliate counterparty are subject to the Commission's margin requirements and the EU's margin requirements, all of the EU's margin requirements would apply, including the requirement to exchange variation margin, absent meeting the specific conditions detailed above. Other than where the two counterparties are established in the same Member State, those specific conditions involve a process of applying to the relevant Member State competent authority(ies) \78\ and receiving a positive determination from either or both competent authorities \79\ or upon notification to the relevant Member State competent authority(ies) and agreement of those competent authorities.\80\ All exemptions are also predicated on the absence of any current or foreseen practical or legal impediment to the prompt transfer of own funds or repayment of liabilities between the counterparties \81\ and on the [[Page 48401]] existence of adequately sound and robust risk management practices that are consistent with the level of complexity of the derivatives transaction.\82\ --------------------------------------------------------------------------- \78\ RTS, Recital (37) states: When a counterparty notifies the relevant competent authority regarding its intention to take advantage of the exemption of intragroup transactions, in order for the competent authority to decide whether the conditions for the exemption are met, the counterparty should provide a complete file including all relevant information necessary for the competent authority to complete its assessment. \79\ See EMIR, Article 11(6), (8), and (10). \80\ See EMIR, Article 11(7) and (9). \81\ See EMIR, Article 11(6)-(10). In addition, RTS, Recital (39) states: In order for the exemption for intragroup transactions to be applicable, it must be certain that no legislative, regulatory, administrative or other mandatory provisions of applicable law could legally prevent the intragroup counterparties from meeting their obligations to transfer monies or repay liabilities or securities under the terms of the intragroup transactions. Similarly, there should be no operational or business practices of the intragroup counterparties or the group that could result in funds not being available to meet payment obligations as they fall due on a day-to- day basis, or in prompt electronic transfer of funds not being possible. \82\ RTS, Recital (38) states: For a group to be deemed to have adequately sound and robust risk management procedures, a number of conditions have to be met. The group should ensure a regular monitoring of the intragroup exposures, and the timely settlement of the obligations resulting from the intragroup OTC derivative contracts should be guaranteed based on the monitoring and liquidity tools at group level that are consistent with the complexity of the intragroup transactions. --------------------------------------------------------------------------- E. Methodologies for Calculating the Amounts of Initial and Variation Margin As an overview, the methodologies for calculating initial and variation margin as agreed under the BCBS/IOSCO Framework state that the margin collected from a counterparty should (i) be consistent across entities covered by the requirements and reflect the potential future exposure (initial margin) and current exposure (variation margin) associated with the particular portfolio of non-centrally cleared derivatives, and (ii) ensure that all counterparty risk exposures are covered fully with a high degree of confidence. With respect to the calculation of initial margin, as a minimum the BCBS/IOSCO Framework generally provides that:Initial margin requirements will not apply to counterparties that have less than EUR 8 billion of gross notional in outstanding derivatives. Initial margin may be subject to a EUR 50 million threshold applicable to a consolidated group of affiliated counterparties. All margin transfers between parties may be subject to a de-minimis minimum transfer amount not to exceed EUR 500,000. The potential future exposure of a non-centrally cleared derivative should reflect an extreme but plausible estimate of an increase in the value of the instrument that is consistent with a one- tailed 99% confidence interval over a 10-day horizon, based on historical data that incorporates a period of significant financial stress. The required amount of initial margin may be calculated by reference to either (i) a quantitative portfolio margin model or (ii) a standardized margin schedule. When initial margin is calculated by reference to an initial margin model, the period of financial stress used for calibration should be identified and applied separately for each broad asset class for which portfolio margining is allowed. Models may be either internally developed or sourced from the counterparties or third-party vendors but in all such cases, models must be approved by the appropriate supervisory authority. Quantitative initial margin models must be subject to an internal governance process that continuously assesses the value of the model's risk assessments, tests the model's assessments against realized data and experience, and validates the applicability of the model to the derivatives for which it is being used. An initial margin model may consider all of the derivatives that are approved for model use that are subject to a single legally enforceable netting agreement. Initial margin models may account for diversification, hedging, and risk offsets within well-defined asset classes such as currency/rates, equity, credit, or commodities, but not across such asset classes and provided these instruments are covered by the same legally enforceable netting agreement and are approved by the relevant supervisory authority. The total initial margin requirement for a portfolio consisting of multiple asset classes would be the sum of the initial margin amounts calculated for each asset class separately. Derivatives for which a firm faces zero counterparty risk require no initial margin to be collected and may be excluded from the initial margin calculation. Where a standardized initial margin schedule is appropriate, it should be computed by multiplying the gross notional size of a derivative by the standardized margin rates provided under the BCBS/IOSCO Framework and adjusting such amount by the ratio of the net current replacement cost to gross current replacement cost (NGR) pertaining to all derivatives in a legally enforceable netting set. The BCBS/IOSCO Framework provides the following standardized margin rates: \83\ --------------------------------------------------------------------------- \83\ See BCBS/IOSCO Framework. ------------------------------------------------------------------------ Initial margin requirement (% of Asset class notional exposure) ------------------------------------------------------------------------ Credit: 0-2 year duration................................. 2 2-5 year duration.................................. 5 5+ year duration................................... 10 Commodity............................................ 15 Equity............................................... 15 Foreign exchange..................................... 6 Interest rate: 0-2 year duration.................................. 1 2-5 year duration.................................. 2 5+ year duration................................... 4 Other................................................ 15 ------------------------------------------------------------------------ For a regulated entity that is already using a schedule- based margin to satisfy requirements under its required capital regime, the appropriate supervisory authority may permit the use of the same schedule for initial margin purposes, provided that it is at least as conservative. The choice between model- and schedule-based initial margin calculations should be made consistently over time for all transactions within the same well defined asset class. Initial margin should be collected at the outset of a transaction, and collected thereafter on a routine and consistent basis upon changes in measured potential future exposure, such as when trades are added to or subtracted from the portfolio. In the event that a margin dispute arises, both parties should make all necessary and appropriate efforts, including timely initiation of dispute resolution protocols, to resolve the dispute and exchange the required amount of initial margin in a timely fashion. With respect to the calculation of variation margin, as a minimum the BCBS/IOSCO Framework generally provides that: The full amount necessary to fully collateralize the mark- to-market exposure of the non-centrally cleared derivatives must be exchanged. Variation margin should be calculated and exchanged for derivatives subject to a single, legally enforceable netting agreement with sufficient frequency (e.g., daily). In the event that a margin dispute arises, both parties should make all necessary and appropriate efforts, including timely initiation of dispute resolution protocols, to resolve the dispute and exchange the required amount of variation margin in a timely fashion. 1. Commission Requirement for Calculation of Initial Margin In keeping with the BCBS/IOSCO Framework described above, with respect to the calculation of initial [[Page 48402]] margin, the Commission's Final Margin Rule generally provides that: Initial margin is intended to address potential future exposure, i.e., in the event of a counterparty default, initial margin protects the non-defaulting party from the loss that may result from a swap or portfolio of swaps, during the period of time needed to close out the swap(s).\84\ --------------------------------------------------------------------------- \84\ See Final Margin Rule, 81 FR 683. --------------------------------------------------------------------------- Potential future exposure is to be an estimate of the one- tailed 99% confidence interval for an increase in the value of the uncleared swap or netting portfolio of uncleared swaps due to an instantaneous price shock that is equivalent to a movement in all material underlying risk factors, including prices, rates, and spreads, over a holding period equal to the shorter of 10 business days or the maturity of the swap or netting portfolio.\85\ --------------------------------------------------------------------------- \85\ See Sec. 23.154(b)(2)(i). --------------------------------------------------------------------------- The required amount of initial margin may be calculated by reference to either (i) a risk-based margin model or (ii) a table-based method.\86\ --------------------------------------------------------------------------- \86\ See Sec. 23.154(a)(1)(i) and (ii). --------------------------------------------------------------------------- All data used to calibrate the initial margin model shall incorporate a period of significant financial stress for each broad asset class that is appropriate to the uncleared swaps to which the initial margin model is applied.\87\ --------------------------------------------------------------------------- \87\ See Sec. 23.154(b)(2)(ii). --------------------------------------------------------------------------- CSEs shall obtain the written approval of the Commission or a registered futures association to use a model to calculate the initial margin required.\88\ --------------------------------------------------------------------------- \88\ See Sec. 23.154(b)(1)(i). --------------------------------------------------------------------------- An initial margin model may calculate initial margin for a netting portfolio of uncleared swaps covered by the same eligible master netting agreement.\89\ --------------------------------------------------------------------------- \89\ See Sec. 23.154(b)(2)(v). --------------------------------------------------------------------------- An initial margin model may reflect offsetting exposures, diversification, and other hedging benefits for uncleared swaps that are governed by the same eligible master netting agreement by incorporating empirical correlations within the following broad risk categories, provided the CSE validates and demonstrates the reasonableness of its process for modeling and measuring hedging benefits: Commodity, credit, equity, and foreign exchange or interest rate.\90\ --------------------------------------------------------------------------- \90\ See id. --------------------------------------------------------------------------- Empirical correlations under an eligible master netting agreement may be recognized by the model within each broad risk category, but not across broad risk categories.\91\ --------------------------------------------------------------------------- \91\ See id. --------------------------------------------------------------------------- If the initial margin model does not explicitly reflect offsetting exposures, diversification, and hedging benefits between subsets of uncleared swaps within a broad risk category, the CSE shall calculate an amount of initial margin separately for each subset of uncleared swaps for which such relationships are explicitly recognized by the model and the sum of the initial margin amounts calculated for each subset of uncleared swaps within a broad risk category will be used to determine the aggregate initial margin due from the counterparty for the portfolio of uncleared swaps within the broad risk category.\92\ --------------------------------------------------------------------------- \92\ See Sec. 23.154(b)(2)(vi). --------------------------------------------------------------------------- Where a risk-based model is not used, initial margin must be computed by multiplying the gross notional size of a derivative by the standardized margin rates provided under Sec. 23.154(c)(i) \93\ and adjusting such amount by the ratio of the net current replacement cost to gross current replacement cost (NGR) pertaining to all derivatives under the same eligible master netting agreement.\94\ --------------------------------------------------------------------------- \93\ The standardized margin rates provided in Sec. 23.154(c)(i) are, in all material respects, the same as those provided under the BCBS/IOSCO Framework. See supra note 83 and table in accompanying text. \94\ See Sec. 23.154(c). --------------------------------------------------------------------------- A CSE shall not be deemed to have violated its obligation to collect or post initial margin if, inter alia, it makes timely initiation of dispute resolution mechanisms, including pursuant to Sec. 23.504(b)(4).\95\ --------------------------------------------------------------------------- \95\ See Sec. 23.152(d)(2)(i). --------------------------------------------------------------------------- 2. Commission Requirements for Calculation of Variation Margin In keeping with the BCBS/IOSCO Framework described above, with respect to the calculation of variation margin, the Commission's Final Margin Rule generally provides that: Each business day, a CSE must calculate variation margin amounts for itself and for each counterparty that is an SD, MSP, or financial end user. Such variation margin amounts must be equal to the cumulative mark-to-market change in value to the CSE of each uncleared swap, adjusted for any variation margin previously collected or posted with respect to that uncleared swap.\96\ --------------------------------------------------------------------------- \96\ See Sec. 23.155(a). --------------------------------------------------------------------------- Variation margin must be calculated 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.\97\ --------------------------------------------------------------------------- \97\ See id. --------------------------------------------------------------------------- CSEs may comply with variation margin requirements on an aggregate basis with respect to uncleared swaps that are governed by the same eligible master netting agreement.\98\ --------------------------------------------------------------------------- \98\ See Sec. 23.153(d)(1). --------------------------------------------------------------------------- A CSE shall not be deemed to have violated its obligation to collect or post variation margin if, inter alia, it makes timely initiation of dispute resolution mechanisms, including pursuant to Sec. 23.504(b)(4).\99\ --------------------------------------------------------------------------- \99\ See Sec. 23.153(e)(2)(i). --------------------------------------------------------------------------- 3. EU Requirements for Calculation of Initial Margin In keeping with the BCBS/IOSCO Framework, with respect to the calculation of initial margin, the EU's margin requirements generally provide: Initial margin protects counterparties against potential losses which could stem from movements in the market value of the derivatives position occurring between the last exchange of variation margin before the default of a counterparty and the time that the OTC derivatives are replaced or the corresponding risk is hedged.\100\ It is the collateral collected by a counterparty to cover its current and potential future exposure in the interval between the last collection of margin and the liquidation of positions or hedging of market risk following a default of the other counterparty.\101\ --------------------------------------------------------------------------- \100\ See RTS, Recital (3). \101\ See RTS, Article 1. --------------------------------------------------------------------------- The assumed variations in the value of the non-centrally cleared OTC derivative contracts within the netting set for the calculation of initial margins using an initial margin model shall be based on a one-tailed 99% confidence interval over a margin period of risk (``MPOR'') of at least 10 days.\102\ --------------------------------------------------------------------------- \102\ See RTS, Article 15(1). --------------------------------------------------------------------------- Counterparties shall calculate the amount of initial margin to be collected using either a standardized approach or an initial margin model or both.\103\ --------------------------------------------------------------------------- \103\ See RTS, Article 11(1). --------------------------------------------------------------------------- Parameters used in initial margin models shall be calibrated, at least annually, based on historical data from a time period with a minimum duration of three years and a maximum duration of five years. The data used for calibrating the parameters of initial margin models shall include the most recent continuous period from the date on which the calibration is performed and at least 25% of those data shall be [[Page 48403]] representative of a period of significant financial stress (stressed data).\104\ --------------------------------------------------------------------------- \104\ See RTS, Article 16(1) and (2). --------------------------------------------------------------------------- Where a counterparty uses an initial margin model, that model may be developed by any of, or both, counterparties or by a third party agent. Where a counterparty uses an initial margin model developed by a third party agent, the counterparty shall remain responsible for ensuring that that model complies with the EU's margin rules.\105\ --------------------------------------------------------------------------- \105\ See RTS, Article 14. --------------------------------------------------------------------------- Initial margin models shall only include non-centrally cleared OTC derivative contracts within the same netting set.\106\ --------------------------------------------------------------------------- \106\ See RTS, Article 17(1) and (2). --------------------------------------------------------------------------- Initial margin models may provide for diversification, hedging and risk offsets arising from the risks of the contracts within the same netting set, provided that the diversification, hedging or risk offset is only carried out within the same underlying asset class as referred to in these requirements. Diversification, hedging, and risk offsets may only be carried out within the following underlying asset classes: (a) Interest rates, currency and inflation; (b) equity; (c) credit; (d) commodities and gold; (e) other.\107\ --------------------------------------------------------------------------- \107\ See RTS, Article 17(1) and (2). --------------------------------------------------------------------------- In the event of a dispute over the amount of initial margin due, counterparties shall provide at least the part of the initial margin amount that is not being disputed within the same business day of the calculation date determined in accordance with Article 9(3).\108\ --------------------------------------------------------------------------- \108\ See RTS, Article 13(3). --------------------------------------------------------------------------- 4. EU Requirements for Calculation of Variation Margin In keeping with the BCBS/IOSCO Framework, with respect to the calculation of variation margin, the EU's margin requirements generally provide: FCs and NFC+s shall mark-to-market on a daily basis the value of outstanding contracts. Where market conditions prevent marking-to-market, reliable and prudent marking-to-model shall be used.\109\ --------------------------------------------------------------------------- \109\ See EMIR, Article 11(2); RTS, Article 9. --------------------------------------------------------------------------- The amount of variation margin to be collected by a counterparty shall be the aggregation of the values calculated for purposes of variation margin of all contracts in the netting set, minus the value of all variation margin previously collected, minus the net value of each contract in the netting set at the point of entry into the contract, and plus the value of all variation margin previously posted.\110\ --------------------------------------------------------------------------- \110\ See EMIR, Article 11(2); RTS, Article 10. --------------------------------------------------------------------------- In the event of a dispute over the amount of variation margin due, counterparties shall provide at least the part of the variation margin amount that is not being disputed.\111\ --------------------------------------------------------------------------- \111\ See RTS, Article 12(3). --------------------------------------------------------------------------- 5. Commission Determination Based on the foregoing and the representations of the applicant, the Commission has determined that the amounts of initial and variation margin calculated under the methodologies required under the EU's margin rules would be similar to those calculated under the methodologies required under the Final Margin Rule. Specifically, under the Final Margin Rule and the EU's margin rules: The definitions of initial and variation margin are similar, including the description of potential future exposure agreed under the BCBS/IOSCO Framework; Margin models and/or a standardized margin schedule may be used to calculate initial margin; Criteria for historical data to be used in initial margin models is similar; Eligibility for netting is similar; Correlations may be recognized within broad risk categories, but not across such risk categories; The required method of calculating initial margin using standardized margin rates is essentially identical; and The proscribed standardized margin rates are essentially identical. Accordingly, the Commission finds that the methodologies for calculating the amounts of initial and variation margin for non- centrally cleared OTC derivatives under the laws of the EU are comparable in outcome to those of the Final Margin Rule. F. Process and Standards for Approving Margin Models Pursuant to the BCBS/IOSCO Framework, initial margin models may be either internally developed or sourced from counterparties or third- party vendors but in all such cases, models must be approved by the appropriate supervisory authority.\112\ --------------------------------------------------------------------------- \112\ See BCBS/IOSCO Framework Requirement 3.3. --------------------------------------------------------------------------- 1. Commission Requirement for Margin Model Approval In keeping with the BCBS/IOSCO Framework, the Final Margin Rule generally requires: CSEs shall obtain the written approval of the Commission or a registered futures association to use a model to calculate the initial margin required.\113\ --------------------------------------------------------------------------- \113\ See Sec. 23.154(b)(1)(i). --------------------------------------------------------------------------- The Commission or a registered futures association will approve models that demonstrate satisfaction of all of the requirements for an initial margin model set forth above in Section IV(E)(1), in addition to the requirements for annual review; \114\ control, oversight, and validation mechanisms; \115\ documentation; \116\ and escalation procedures.\117\ --------------------------------------------------------------------------- \114\ See Sec. 23.154(b)(4), discussed further below. \115\ See Sec. 23.154(b)(5), discussed further below. \116\ See Sec. 23.154(b)(6), discussed further below. \117\ See Sec. 23.154(b)(7), discussed further below. --------------------------------------------------------------------------- CSEs must notify the Commission and the registered futures association in writing 60 days prior to extending the use of an initial margin model to an additional product type; making any change to the model that would result in a material change in the CSE's assessment of initial margin requirements; or making any material change to modeling assumptions. The Commission or the registered futures association may rescind its approval, or may impose additional conditions or requirements if the Commission or the registered futures association determines, in its discretion, that a model no longer complies with the requirements for an initial margin model summarized above in Section IV(E)(1). 2. EU Requirement for Approval of Margin Models The EU's margin rules generally require: Upon request, counterparties using a non-standardized initial margin model shall provide the competent authorities with any documentation relating to the risk management procedures relating to such model at any time.\118\ --------------------------------------------------------------------------- \118\ See RTS, Article 2(6). --------------------------------------------------------------------------- 3. Commission Determination Based on the foregoing and the representations of the applicant, the Commission has determined that the EU margin rules' requirement that an FC/NFC+ make documentation supporting an initial model available to a competent authority at any time is comparable in outcome to, the regulatory approval requirements of the Final Margin Rule. While the Commission recognizes that keeping documents open to regulatory review is not the same as requiring specific pre-approval from a regulator, the EC has represented that competent authorities within the Member States responsible for supervising FCs and, where applicable NFC+s, as part of their ongoing prudential regulation and supervision will enforce applicable [[Page 48404]] legislation and control whether the models adopted by these entities comply with the requirements under the EU margin rules. Furthermore, Article 12 of EMIR grants the competent authorities in each Member State the authority to impose fines in case of infringement of the rules promulgated under EMIR, such as the RTS.\119\ Such infringement could include an FC's or NFC+'s violations of the provisions under Section 4 of the RTS that establish the general requirements for initial margin models.\120\ --------------------------------------------------------------------------- \119\ See RTS, Article 40. \120\ The applicant noted that, in a November 23, 2016 report to the European Parliament and the Council on areas where further action is necessary to ensure that the objectives of EMIR are fulfilled ``in a more appropriate, efficient and effective manner,'' on the issue of margin model approval, the EC stated: [W]ith respect to non-cleared transactions, some respondents, notably financial institutions, noted the absence of a clear mandate for initial margin models to be endorsed by authorities, which could lead to uncertainty among market participants as to whether their calculations are considered by authorities to be fully compliant with regulations. A mandate for initial margin models to be endorsed by authorities could promote certainty for market participants and authorities alike. See November 23, 2016 Report from the EC to the European Parliament and the Council under Article 85(1) of EMIR on OTC Derivatives, Central Counterparties and Trade Repositories, section 4.1.2 (emphasis included), at http://ec.europa.eu/finance/financial-markets/docs/derivatives/161123-report_en.pdf. --------------------------------------------------------------------------- G. Timing and Manner for Collection or Payment of Initial and Variation Margin 1. Commission Requirement for Timing and Manner for Collection or Payment of Initial and Variation Margin With respect to the timing and manner for collection or posting of initial margin, the Final Margin Rule generally provides that: Where a CSE is required to collect initial margin, it must be collected on or before the business day after execution of an uncleared swap, and thereafter the CSE must continue to hold initial margin in an amount equal to or greater than the required initial margin amount as re-calculated each business day until such uncleared swap is terminated or expires. Where a CSE is required to post initial margin, it must be posted on or before the business day after execution of an uncleared swap, and thereafter the CSE must continue to post initial margin in an amount equal to or greater than the required initial margin amount as re-calculated each business day until such uncleared swap is terminated or expires. Required initial margin amounts must be posted and collected by CSEs on a gross basis (i.e., amounts to be posted may not be set-off against amounts to be collected from the same counterparty). With respect to the timing and manner for collection or posting of variation margin, the Final Margin Rule generally provides that: Where a CSE is required to collect variation margin, it must be collected on or before the business day after execution of an uncleared swap, and thereafter the CSE must continue to collect the required variation margin amount, if any, each business day as re- calculated each business day until such uncleared swap is terminated or expires.\121\ --------------------------------------------------------------------------- \121\ See Sec. 23.153(a). --------------------------------------------------------------------------- Where a CSE is required to post variation margin, it must be posted on or before the business day after execution of an uncleared swap, and thereafter the CSE must continue to post the required variation margin amount, if any, each business day as re-calculated each business day until such uncleared swap is terminated or expires.\122\ --------------------------------------------------------------------------- \122\ See Sec. 23.153(b). --------------------------------------------------------------------------- With respect to both initial and variation margin, a CSE shall not be deemed to have violated its obligation to collect or post margin if, inter alia, it makes timely initiation of dispute resolution mechanisms, including pursuant to Sec. 23.504(b)(4).\123\ --------------------------------------------------------------------------- \123\ See Sec. 23.153(e)(2)(i). --------------------------------------------------------------------------- 2. EU Requirements for Timing and Manner for Collection of Initial and Variation Margin With respect to the timing and manner for collection or posting of initial margin, the EU's margin rules generally provide that: Counterparties shall calculate initial margin no later than the business day following one of these events: (a) Where a new non-centrally cleared OTC derivative contract is executed or added to the netting set; (b) where an existing non-centrally cleared OTC derivative contract expires or is removed from the netting set; (c) where an existing non-centrally cleared OTC derivative contract triggers a payment or a delivery other than the posting and collecting of margins; (d) where the initial margin is calculated in accordance with the standardized approach and an existing contract is reclassified in terms of the asset category referred to by the RTS as a result of reduced time to maturity; (e) where no calculation has been performed in the preceding 10 business days.\124\ --------------------------------------------------------------------------- \124\ See RTS, Article 9(2). --------------------------------------------------------------------------- The posting counterparty shall provide the initial margin within the same business day of the calculation date.\125\ --------------------------------------------------------------------------- \125\ See RTS, Article 13(2). --------------------------------------------------------------------------- Where two counterparties are located in the same time- zone, the calculation shall be based on the netting set of the previous business day.\126\ --------------------------------------------------------------------------- \126\ See RTS, Article 9(3)(a). --------------------------------------------------------------------------- Where two counterparties are not located in the same time- zone, the calculation shall be based on the transactions in the netting set which are entered into before 16:00 hours of the previous business day of the time-zone where it is first 16:00 hours.\127\ --------------------------------------------------------------------------- \127\ See RTS, Article 9(3)(b). --------------------------------------------------------------------------- In the event of a dispute over the amount of initial margin due, counterparties shall provide at least the part of the initial margin amount that is not being disputed within the same business day of the calculation date.\128\ --------------------------------------------------------------------------- \128\ See RTS, Article 13(3). --------------------------------------------------------------------------- With respect to the timing and manner for collection or posting of variation margin, the EU's margin rules generally provide that: Counterparties shall calculate variation margin at least on a daily basis.\129\ --------------------------------------------------------------------------- \129\ See RTS, Article 9(1). --------------------------------------------------------------------------- The posting counterparty shall provide the variation margin as follows: (a) Within the same business day of the calculation date; (b) where certain conditions are met,\130\ within two business days of the calculation date.\131\ --------------------------------------------------------------------------- \130\ The provision of variation margin within two business of the calculation date may only be applied to the following: (a) Netting sets comprising derivative contracts not subject to initial margin requirements in accordance with this Regulation, where the posting counterparty has provided, at or before the calculation date of the variation margin, an advance amount of eligible collateral calculated in the same manner as that applicable to initial margins in accordance with Article 15, for which the collecting counterparty has used a margin period of risk (MPOR) at least equal to the number of days in between and including the calculation date and the collection date; (b) netting sets comprising contracts subject to initial margin requirements in accordance with this Regulation, where the initial margin has been adjusted in one of the following ways: (i) By increasing the MPOR referred to in Article 15(2) by the number of days in between, and including, the calculation date determined in accordance with Article 9(3) and the collection date determined in accordance with paragraph 1 of this Article; (ii) by increasing the initial margin calculated in accordance with the standardised approach referred to in Article 11 using an appropriate methodology taking into account a MPOR that is increased by the number of days in between, and including, the calculation date determined in accordance with Article 9(3) and the collection date determined in accordance with paragraph 2 of this Article. For the purposes of point (a), in case no mechanism for segregation is in place between the two counterparties, those counterparties may offset the amounts to be provided. \131\ See RTS, Article 12(1). --------------------------------------------------------------------------- In the event of a dispute over the amount of variation margin due, [[Page 48405]] counterparties shall provide at least the part of the variation margin amount that is not being disputed.\132\ --------------------------------------------------------------------------- \132\ See RTS, Article 12(3). --------------------------------------------------------------------------- 3. Commission Determination Having compared the EU's margin requirements applicable to the timing and manner of collection and payment of initial and variation margin to the Commission's corresponding margin requirements, the Commission finds that the EU's margin requirements are, despite apparent differences in certain respects, comparable in outcome. Under the Final Margin Rule, where initial margin is required, a CSE must calculate the amount of initial margin each business day. The EU's margin rules only require initial margin to be calculated after certain events, including the addition or removal of a non-centrally cleared OTC derivative from the netting set or at least within 10 days after the last initial margin calculation. While this is different from the Final Margin Rule's requirement that the amount of initial margin be calculated each business day, the EC has explained that the more sophisticated counterparties subject to the EU margin rules actively operate in non-centrally cleared OTC derivatives to the point where the RTS requirement to recalculate whenever there is a change to the netting set will in practice require these types of counterparties to recalculate daily. Because of this, the EC views the 10-day allowance under Article 9(2)(e) of the RTS as a backstop only and one that is likely to be exercised only in the case of a static portfolio. The Commission believes that as a result of these entities still exchanging variation margin, and thereby eliminating current exposure, this difference will be mitigated. With respect to the timing of collecting/posting margin, the Final Margin Rule requires CSEs to collect/post any required margin amount within one business day of calculation which, under the Final Margin Rule, must occur daily. In contrast, the EU's margin rules allow for a variation margin posting date within two business days of the calculation date (T+2) when certain conditions are met.\133\ As explained in the Recitals to the RTS, additional time for posting of variation margin is allowed only where compensated by an adjustment to initial margin by an adequate recalculation of MPOR.\134\ Where initial margin is required, an adequate recalculation of MPOR under the RTS would occur by increasing the MPOR by the number of days in between, and including, the calculation and collection dates or by increasing the initial margin calculated with the standardized approach taking into account a MPOR increased by the number of days in between, and including, the calculation and collection dates.\135\ Where no initial margin requirements apply, additional time is permitted for posting of variation margin if the posting counterparty has provided, at or before the variation margin calculation date, an advance amount of eligible collateral calculated in the same manner as required for initial margin with an MPOR at least equal to the number of days in between, and including, the calculation and collection dates.\136\ --------------------------------------------------------------------------- \133\ See RTS, Article 12(2). \134\ See RTS, Recital (20). \135\ See RTS, Article 12(2)(b). \136\ See RTS, Recital (20) and Article 12(2)(a). --------------------------------------------------------------------------- While the RTS conditions to a delay in the exchange of variation margin do not make the EU's rule in this area the same as the Final Margin Rule, they do serve to mitigate the potential risks, as described above, by increasing the initial margin's MPOR by the corresponding number of days associated with a delay in the exchange of variation margin. Furthermore, although the EU's allowance for a delay of up to 10 days to recalculate initial margin is not the same as the Final Margin Rule's daily recalculation requirement, as detailed above, the EC has represented that, in practice, it expects the most sophisticated counterparties subject to the EU margin rules to recalculate initial margin on a daily basis. Thus, the Commission finds that the requirements of the EU margin rules with respect to the timing and manner for collection or payment of initial and variation margin are comparable in outcome to the Final Margin Rule. H. Margin Threshold Levels or Amounts The BCBS/IOSCO Framework provides that initial margin could be subject to a threshold not to exceed EUR 50 million. The threshold is applied at the level of the consolidated group to which the threshold is being extended and is based on all non-centrally cleared derivatives between the two consolidated groups. Similarly, to alleviate operational burdens associated with the transfer of small amounts of margin, the BCBS/IOSCO Framework provides that all margin transfers between parties may be subject to a de- minimis minimum transfer amount not to exceed EUR 500,000. 1. Commission Requirement for Margin Threshold Levels or Amounts In keeping with the BCBS/IOSCO Framework, with respect to margin threshold levels or amounts the Final Margin Rule generally provides that: CSEs may agree with their counterparties that initial margin may be subject to a threshold of no more than $50 million applicable to a consolidated group of affiliated counterparties.\137\ --------------------------------------------------------------------------- \137\ See Sec. 23.154(a)(3) and definition of ``initial margin threshold'' in Sec. 23.151. --------------------------------------------------------------------------- CSEs are not required to collect or to post initial or variation margin with a counterparty until the combined amount of initial margin and variation margin to be collected or posted is greater than $500,000 (i.e., a minimum transfer amount).\138\ --------------------------------------------------------------------------- \138\ See Sec. 23.152(b)(3). --------------------------------------------------------------------------- 2. EU Requirement for Margin Threshold Levels or Amounts In keeping with the BCBS/IOSCO Framework, with respect to margin threshold levels or amounts, the EU's margin requirements generally provide that: Counterparties may provide in their risk management procedures that initial margin collected is reduced by an amount up to EUR 50 million where neither counterparty belongs to any group or the counterparties are part of different groups; or EUR 10 million where both counterparties belong to the same group.\139\ --------------------------------------------------------------------------- \139\ See RTS, Article 29(1). --------------------------------------------------------------------------- Counterparties may provide in their risk management procedures that no collateral is collected from a counterparty where the amount due from the last collection of collateral is equal to or lower than the amount agreed by the counterparties. The minimum transfer amount shall not exceed EUR 500,000 or the equivalent amount in another currency.\140\ --------------------------------------------------------------------------- \140\ See RTS, Article 25(1). --------------------------------------------------------------------------- 3. Commission Determination Based on the foregoing and the representations of the applicant, the Commission has determined that the EU requirements for margin threshold levels or amounts, in the case of FCs and NFC+s, are comparable in outcome to those required by the Final Margin Rule, in the case of CSEs. The Commission notes that at current exchange rates, EUR 50 million is approximately $59 million, while EUR 500,000 is approximately $588,000. Although these amounts are greater than those permitted by the Final Margin Rule, the Commission recognizes that [[Page 48406]] exchange rates will fluctuate over time and thus the Commission finds that such requirements under the laws of the EU are comparable in outcome to those of the Final Margin Rule. I. Risk Management Controls for the Calculation of Initial and Variation Margin 1. Commission Requirement for Risk Management Controls for the Calculation of Initial and Variation Margin With respect to risk management controls for the calculation of initial margin, the Final Margin Rule generally provides that: CSEs are required to have a risk management unit pursuant to Sec. 23.600(c)(4). Such risk management unit must include a risk control unit tasked with validation of a CSE's initial margin model prior to implementation and on an ongoing basis, including an evaluation of the conceptual soundness of the initial margin model, an ongoing monitoring process that includes verification of processes and benchmarking by comparing the CSE's initial margin model outputs (estimation of initial margin) with relevant alternative internal and external data sources or estimation techniques, and an outcomes analysis process that includes back testing the model.\141\ --------------------------------------------------------------------------- \141\ See Sec. 23.154(b)(5). --------------------------------------------------------------------------- In accordance with Sec. 23.600(e)(2), CSEs must have an internal audit function independent of the business trading unit and the risk management unit that at least annually assesses the effectiveness of the controls supporting the initial margin model measurement systems, including the activities of the business trading units and risk control unit, compliance with policies and procedures, and calculation of the CSE's initial margin requirements under this part.\142\ --------------------------------------------------------------------------- \142\ See Sec. 23.154(b)(5)(iv). --------------------------------------------------------------------------- At least annually, such internal audit function shall report its findings to the CSE's governing body, senior management, and chief compliance officer.\143\ --------------------------------------------------------------------------- \143\ See Sec. 23.154(b)(5)(iv). --------------------------------------------------------------------------- With respect to risk management controls for the calculation of variation margin, the Final Margin Rule generally provides that: CSEs must maintain documentation setting forth the variation methodology with sufficient specificity to allow a counterparty, the Commission, a registered futures association, and any applicable prudential regulator to calculate a reasonable approximation of the margin requirement independently. CSEs must evaluate the reliability of its data sources at least annually, and make adjustments, as appropriate. CSEs, upon request of the Commission or a registered futures association, must provide further data or analysis concerning the variation methodology or a data source, including: (a) The manner in which the methodology meets the requirements of the Final Margin Rule; (b) a description of the mechanics of the methodology; (c) the conceptual basis of the methodology; (d) the empirical support for the methodology; and (e) the empirical support for the assessment of the data sources. 2. EU Requirement for Risk Management Controls for the Calculation of Initial and Variation Margin With respect to risk management controls for the calculation of initial margin, the EU's margin requirements generally provide that: Counterparties shall establish an internal governance process to assess the appropriateness of the initial margin model on a continuous basis, including all of the following: (a) An initial validation of the model by suitably qualified persons who are independent from the persons developing the model; (b) a follow up validation whenever a significant change is made to the initial margin model and at least annually; and (c) a regular audit process to assess the following: (i) The integrity and reliability of the data sources; (ii) the management information system used to run the model; (iii) the accuracy and completeness of data used; (iv) the accuracy and appropriateness of volatility and correlation assumptions.\144\ --------------------------------------------------------------------------- \144\ See RTS, Article 1. --------------------------------------------------------------------------- The documentation of the risk management procedures relating to the initial margin model shall meet all of the following conditions: (a) It shall allow a knowledgeable third-party to understand the design and operational detail of the initial margin model; (b) it shall contain the key assumptions and the limitations of the initial margin model; (c) it shall define the circumstances under which the assumptions of the initial margin model are no longer valid.\145\ --------------------------------------------------------------------------- \145\ See RTS, Article 18(2). --------------------------------------------------------------------------- Counterparties shall document all changes to the initial margin model. That documentation shall also detail the results of the validations carried out after those changes.\146\ --------------------------------------------------------------------------- \146\ See RTS, Article 18(3). --------------------------------------------------------------------------- 3. Commission Determination Based on the foregoing and the representations of the applicant, the Commission has determined that the EU requirements applicable to FCs and NFC+s pertaining to risk management controls for the calculation of initial and variation margin are substantially the same as the corresponding requirements under the Final Margin Rule. Specifically, the Commission finds that under both the EU's requirements and the Final Margin Rule, a CSE is required to establish a unit that is tasked with comprehensively managing the entity's use of an initial margin model, including establishing controls and testing procedures. Accordingly, the Commission finds that the EU's requirements pertaining to risk management controls over the use of initial margin models are comparable in outcome to the controls required by the Final Margin Rule. J. Eligible Collateral for Initial and Variation Margin As explained in the BCBS/IOSCO Framework, to ensure that counterparties can liquidate assets held as initial and variation margin in a reasonable amount of time to generate proceeds that could sufficiently protect collecting entities from losses on non-centrally cleared derivatives in the event of a counterparty default, assets collected as collateral for initial and variation margin purposes should be highly liquid and should, after accounting for an appropriate haircut, be able to hold their value in a time of financial stress. Such a set of eligible collateral should take into account that assets which are liquid in normal market conditions may rapidly become illiquid in times of financial stress. In addition to having good liquidity, eligible collateral should not be exposed to excessive credit, market and FX risk (including through differences between the currency of the collateral asset and the currency of settlement). To the extent that the value of the collateral is exposed to these risks, appropriately risk-sensitive haircuts should be applied. More importantly, the value of the collateral should not exhibit a significant correlation with the creditworthiness of the counterparty or the value of the underlying non-centrally cleared derivatives portfolio in such a way that would undermine the effectiveness of the protection offered by the margin collected. Accordingly, securities issued by the counterparty or its related entities should not be accepted as collateral. Accepted [[Page 48407]] collateral should also be reasonably diversified. 1. Commission Requirement for Eligible Collateral for Initial and Variation Margin With respect to eligible collateral that may be collected or posted to satisfy an initial margin obligation, the Final Margin Rule generally provides that CSEs may collect or post: \147\ --------------------------------------------------------------------------- \147\ See Sec. 23.156(a)(1). --------------------------------------------------------------------------- Cash denominated in a major currency, being United States Dollar (USD); Canadian Dollar (CAD); Euro (EUR); United Kingdom Pound (GBP); Japanese Yen (JPY); Swiss Franc (CHF); New Zealand Dollar (NZD); Australian Dollar (AUD); Swedish Kronor (SEK); Danish Kroner (DKK); Norwegian Krone (NOK); any other currency designated by the Commission; or any currency of settlement for a particular uncleared swap. A security that is issued by, or unconditionally guaranteed as to the timely payment of principal and interest by, the U.S. Department of Treasury. A security that is issued by, or unconditionally guaranteed as to the timely payment of principal and interest by, a U.S. government agency (other than the U.S. Department of Treasury) whose obligations are fully guaranteed by the full faith and credit of the U.S. government. A security that is issued by, or fully guaranteed as to the payment of principal and interest by, the European Central Bank or a sovereign entity that is assigned no higher than a 20 percent risk weight under the capital rules applicable to SDs subject to regulation by a prudential regulator. A publicly-traded debt security issued by, or an asset- backed security fully guaranteed as to the timely payment of principal and interest by, a U.S. Government-sponsored enterprise that is operating with capital support or another form of direct financial assistance received from the U.S. government that enables the repayments of the U.S. Government-sponsored enterprise's eligible securities. A security that is issued by, or fully guaranteed as to the payment of principal and interest by, the Bank for International Settlements, the International Monetary Fund, or a multilateral development bank as defined in Sec. 23.151. Other publicly-traded debt that has been deemed acceptable as initial margin by a prudential regulator as defined in Sec. 23.151. A publicly-traded common equity security that is included in the Standard & Poor's Composite 1500 Index (or any other similar index of liquid and readily marketable equity securities as determined by the Commission) or an index that a CSE's supervisor in a foreign jurisdiction recognizes for purposes of including publicly traded common equity as initial margin under applicable regulatory policy, if held in that foreign jurisdiction. Securities in the form of redeemable securities in a pooled investment fund representing the security-holder's proportional interest in the fund's net assets and that are issued and redeemed only on the basis of the market value of the fund's net assets prepared each business day after the security-holder makes its investment commitment or redemption request to the fund, if the fund's investments are limited to securities that are issued by, or unconditionally guaranteed as to the timely payment of principal and interest by, the U.S. Department of the Treasury, and immediately-available cash funds denominated in U.S. dollars; or securities denominated in a common currency and issued by, or fully guaranteed as to the payment of principal and interest by, the European Central Bank or a sovereign entity that is assigned no higher than a 20% risk weight under the capital rules applicable to SDs subject to regulation by a Prudential Regulator, and immediately-available cash funds denominated in the same currency; and assets of the fund may not be transferred through securities lending, securities borrowing, repurchase agreements, reverse repurchase agreements, or other means that involve the fund having rights to acquire the same or similar assets from the transferee. Gold. A CSE may not collect or post as initial margin any asset that is a security issued by: The CSE or a margin affiliate of the CSE (in the case of posting) or the counterparty or any margin affiliate of the counterparty (in the case of collection); a bank holding company, a savings and loan holding company, a U.S. intermediate holding company established or designated for purposes of compliance with 12 CFR 252.153, a foreign bank, a depository institution, a market intermediary, a company that would be any of the foregoing if it were organized under the laws of the United States or any State, or a margin affiliate of any of the foregoing institutions; or a nonbank financial institution supervised by the Board of Governors of the Federal Reserve System under Title I of the Dodd-Frank Wall Street Reform and Consumer Protection Act (12 U.S.C. 5323).\148\ --------------------------------------------------------------------------- \148\ See Sec. 23.156(a)(2). --------------------------------------------------------------------------- The value of any eligible collateral collected or posted to satisfy initial margin requirements must be reduced by the following haircuts: an 8% discount for initial margin collateral denominated in a currency that is not the currency of settlement for the uncleared swap, except for eligible types of collateral denominated in a single termination currency designated as payable to the non-posting counterparty as part of an eligible master netting agreement; and the discounts set forth in the following table: \149\ --------------------------------------------------------------------------- \149\ See Sec. 23.156(a)(3). Standardized Haircut Schedule ------------------------------------------------------------------------ ------------------------------------------------------------------------ Cash in same currency as swap obligation................ 0.0 Eligible government and related debt (e.g., central 0.5 bank, multilateral development bank, GSE securities identified in paragraph (a)(1)(iv) of this section): Residual maturity less than one-year................... Eligible government and related debt (e.g., central 2.0 bank, multilateral development bank, GSE securities identified in paragraph (a)(1)(iv) of this section): Residual maturity between one and five years........... Eligible government and related debt (e.g., central 4.0 bank, multilateral development bank, GSE securities identified in paragraph (a)(1)(iv) of this section): Residual maturity greater than five years.............. Eligible corporate debt (including eligible GSE debt 1.0 securities not identified in paragraph (a)(1)(iv) of this section): Residual maturity less than one-year.... Eligible corporate debt (including eligible GSE debt 4.0 securities not identified in paragraph (a)(1)(iv) of this section): Residual maturity between one and five years.................................................. Eligible corporate debt (including eligible GSE debt 8.0 securities not identified in paragraph (a)(1)(iv) of this section): Residual maturity greater than five years.................................................. Equities included in S&P 500 or related index........... 15.0 [[Page 48408]] Equities included in S&P 1500 Composite or related index 25.0 but not S&P 500 or related index....................... Gold.................................................... 15.0 ------------------------------------------------------------------------ With respect to eligible collateral that may be collected or posted to satisfy a variation margin obligation, the Final Margin Rule generally provides that CSEs may collect or post: \150\ --------------------------------------------------------------------------- \150\ See Sec. 23.156(b)(1). --------------------------------------------------------------------------- With respect to uncleared swaps with an SD or MSP, only immediately available cash funds that are denominated in: U.S. dollars, another major currency (as defined in Sec. 23.151), or the currency of settlement of the uncleared swap. With respect to any other uncleared swaps for which a CSE is required to collect or post variation margin, any asset that is eligible to be posted or collected as initial margin, as described above. The value of any eligible collateral collected or posted to satisfy variation margin requirements must be reduced by the same haircuts applicable to initial margin described above.\151\ --------------------------------------------------------------------------- \151\ See Sec. 23.156(b)(2). --------------------------------------------------------------------------- Finally, CSEs must monitor the value and eligibility of collateral collected and posted: \152\ --------------------------------------------------------------------------- \152\ See Sec. 23.156(c). --------------------------------------------------------------------------- CSEs must monitor the market value and eligibility of all collateral collected and posted, and, to the extent that the market value of such collateral has declined, the CSE must promptly collect or post such additional eligible collateral as is necessary to maintain compliance with the margin requirements of Sec. Sec. 23.150 through 23.161. To the extent that collateral is no longer eligible, CSEs must promptly collect or post sufficient eligible replacement collateral to comply with the margin requirements of Sec. Sec. 23.150 through 23.161. 2. EU Requirement for Eligible Collateral for Initial and Variation Margin With respect to eligible collateral that may be collected to satisfy an initial or variation margin obligation, the EU's margin requirements generally provide that counterparties may collect: \153\ --------------------------------------------------------------------------- \153\ See RTS, Article 4. --------------------------------------------------------------------------- Cash in the form of money credited to an account in any currency, or similar claims for the repayment of money, such as money market deposits. Gold. Debt securities issued by Member States' central governments or central banks. Debt securities issued by Member States' regional governments or local authorities whose exposures are treated as exposures to the central government of that Member State in accordance with Article 115(2) of Regulation (EU) No 575/2013. Debt securities issued by Member States' public sector entities whose exposures are treated as exposures to the central government, regional government or local authority of that Member State in accordance with Article 116(4) of Regulation (EU) No 575/2013. Debt securities issued by multilateral development banks listed in Article 117(2) of Regulation (EU) No 575/2013. Debt securities issued by the international organizations listed in Article 118 of Regulation (EU) No 575/2013. Debt securities issued by third countries' governments or central banks. Where the assets are not issued by the posting counterparty, not issued by entities that are part of the same group as the posting counterparty, or not otherwise subject to any wrong way risk, a counterparty may collect: [ssquf] Debt securities issued by Member States' regional governments or local authorities whose exposures are not treated as exposures to the central government of that Member State; [ssquf] Debt securities issued by Member States' public sector entities whose exposures are treated as exposures to the central government, regional government, or local authority of that Member State; [ssquf] Debt securities issued by third countries' regional governments or local authorities whose exposures are treated as exposures to the central government, regional government, or local authority of that third country; [ssquf] Debt securities issued by third countries' regional governments or local authorities whose exposures are not treated as exposures to the central government, regional government, or local authority of that third country; [ssquf] Debt securities issued by credit institutions or investment firms including bonds referred to in Article 52(4) of Directive 2009/ 65/EC of the European Parliament and of the Council; [ssquf] Corporate bonds; [ssquf] The most senior tranche of a securitization, as defined in Article 4(61) of Regulation (EU) No 575/2013, that is not a re- securitization as defined in Article 4(63) of that Regulation; [ssquf] Convertible bonds provided that they can be converted only into equities which are included in an index specified pursuant to point (a) of Article 197 (8) of Regulation (EU) No 575/2013; [ssquf] Equities included in an index specified pursuant to point (a) of Article 197(8) of Regulation (EU) No 575/2013; [ssquf] A counterparty may only use units or shares in undertakings for collective investments in transferable securities (UCITS) as eligible collateral where all the following conditions are met: (a) The units or shares have a daily public price quote; (b) the UCITS are limited to investing in assets that are eligible in accordance with Article 4(1); (c) the UCITS meet the criteria laid down in Article 132(3) of Regulation (EU) No 575/2013. For the purposes of point (b), UCITS may use derivative instruments to hedge the risks arising from the assets in which they invest. In addition, where a UCITS invests in shares or units of other UCITS, these conditions shall also apply to those UCITS.\154\ --------------------------------------------------------------------------- \154\ See RTS, Article 5(1). --------------------------------------------------------------------------- [ssquf] Where a UCITS or any of its underlying UCITS do not only invest in assets that are eligible collateral under the RTS, only the value of the unit or share of the UCITS that represents investment in eligible assets may be used as eligible collateral.\155\ --------------------------------------------------------------------------- \155\ See RTS, Article 5(2). --------------------------------------------------------------------------- [ssquf] Where non-eligible assets of a UCITS can have a negative value, the value of the unit or share of the UCITS that may be used as eligible collateral shall be determined by deducting the maximum negative value of the non-eligible assets from the value of eligible assets.\156\ --------------------------------------------------------------------------- \156\ See RTS, Article 5(3). --------------------------------------------------------------------------- Counterparties must assess the credit quality of certain asset classes.\157\ --------------------------------------------------------------------------- \157\ See RTS, Article 6. --------------------------------------------------------------------------- Counterparties shall adjust the value of collected collateral in accordance with either a methodology prescribed by the RTS \158\ or a methodology using their own volatility estimates.\159\ --------------------------------------------------------------------------- \158\ See RTS, Annex III. \159\ See RTS, Article 21. --------------------------------------------------------------------------- There are certain concentration limits for collateral collected as initial margin.\160\ --------------------------------------------------------------------------- \160\ See RTS, Article 8. --------------------------------------------------------------------------- [[Page 48409]] If a counterparty chooses to not use its own volatility estimates, the value of any eligible collateral collected or posted to satisfy initial margin requirements must be reduced by the following haircuts: \161\ --------------------------------------------------------------------------- \161\ See RTS, Annex II. ------------------------------------------------------------------------ ------------------------------------------------------------------------ Cash in same currency as swap obligation................ 0.0 Debt securities issued by entities describe in Article 0.5 4(1)(c) to (e) and (h) to (k): Residual maturity less than one-year.......................................... Debt securities issued by entities describe in Article 2.0 4(1)(c) to (e) and (h) to (k): Residual maturity between one and five years............................. Debt securities issued by entities describe in Article 4.0 4(1)(c) to (e) and (h) to (k): Residual maturity greater than five years................................ Debt securities issued by entities describe in Article 1.0 4(1)(f), (g) and (l) to (n): Residual maturity less than one-year.......................................... Debt securities issued by entities describe in Article 4.0 4(1)(f), (g) and (l) to (n): Residual maturity between one and five years..................................... Debt securities issued by entities describe in Article 8.0 4(1)(f), (g) and (l) to (n): Residual maturity greater than five years........................................ Securitization positions meeting the criteria in Article 2.0 4(1)(o): Residual maturity of less than one year....... Securitization positions meeting the criteria in Article 8.0 4(1)(o): Residual maturity between one and five years.. Securitization positions meeting the criteria in Article 16.0 4(1)(o): Residual maturity of more than five years..... Equities included in main indices, bonds convertible to 15.0 equities in main indices, and gold..................... ------------------------------------------------------------------------ In addition to the foregoing, under the EU's margin requirements, for the purpose of exchanging initial margin, all cash and non-cash collateral posted in a currency other than the currency in which the payments in case of early termination or default have to be made in accordance with the single derivative contract, the relevant exchange of collateral agreement or the relevant credit support annex (``termination currency''). Each of the counterparties may choose a different termination currency. Where the agreement does not identify a termination currency, the haircut shall apply to the market value of all the assets posted as collateral.\162\ --------------------------------------------------------------------------- \162\ See RTS, Annex II, Table 3. --------------------------------------------------------------------------- 3. Commission Determination Based on the foregoing and the representations of the applicant, the Commission finds that the EU's requirements pertaining to assets eligible for posting or collecting by FCs and NFC+s as collateral for non-centrally cleared OTC derivatives, while different than the Final Margin Rule in some respects, are comparable in outcome to the Final Margin Rule. For example, under the EU margin regime, cash in the form of a claim for the repayment of money, such as money market deposits, is eligible collateral while under the Final Margin Rule it is not. However, although the EU margin regime and Final Margin Rule take different approaches on this point, the Commission did recognize the need for flexibility provided to counterparties by money market funds when it allowed for the use of redeemable securities in a pooled investment fund that holds only securities that are issued by, or unconditionally guaranteed as to the timely payment of principal and interest by, the U.S. Department of the Treasury, and cash funds denominated in U.S. dollars.\163\ --------------------------------------------------------------------------- \163\ See Final Margin Rule, 81 FR 636, 665. --------------------------------------------------------------------------- The EU's requirements are also different with respect to the eligible collateral for variation margin for non-centrally cleared OTC derivatives between FC/NFC+s that are CSEs and FC/NFC+s that are SDs and MSPs (including other CSEs). For uncleared swaps with an SD or MSP, the Final Margin Rule only permits variation margin to be posted or collected as immediately available cash funds that are denominated in U.S. dollars, another major currency (as defined in Sec. 23.151), or the currency of settlement of the uncleared swap, while the EU's margin requirements would permit any form of eligible collateral (as described above). The Commission did state in the Final Margin Rule, however, that requiring variation margin to be posted or collected as immediately available cash funds is ``consistent with regulatory and industry initiatives to improve standardization and efficiency in the OTC swaps market.'' \164\ Thus, in outcome, an SD or MSP that is also subject to the EU margin rules likely would, in the normal course of business, be exchanging variation margin in immediately available cash funds. --------------------------------------------------------------------------- \164\ See id. at 668. --------------------------------------------------------------------------- Other differences concern corporate bonds, the most senior tranche of a securitization, and convertible bonds that can be converted only into equities listed on specific indexes, all of which are allowed under the EU margin rules but not under the Final Margin Rule. However, the EU margin rules do address the inherent risk posed by these assets by including additional safeguards when using these types of collateral. Regarding corporate bonds and convertible bonds, a counterparty subject to the EU margin rules must assess the credit quality of the assets using a specified internal rating or a credit quality assessment issued by a recognized External Credit Assessment Institution (``ECAI'').\165\ Regarding the most senior tranche of a securitization, a counterparty must use an ECAI's credit quality assessment to assess the tranche's credit quality.\166\ --------------------------------------------------------------------------- \165\ See RTS, Article 6(1). \166\ See RTS, Article 6(2). --------------------------------------------------------------------------- The EU's margin rules on eligible collateral also differ from the Final Margin Rule in ways that make the EU rules more stringent than the Final Margin Rule. For example, the EU margin rules require a larger haircut than the Final Margin Rule on government, central bank, and corporate debt where a credit quality assessment, as required under Article of the RTS, indicates low credit quality for such debt.\167\ In addition, the EU's margin rules impose concentration limits for initial margin.\168\ --------------------------------------------------------------------------- \167\ See RTS, Articles 6 and 7. \168\ See RTS, Article 8. --------------------------------------------------------------------------- While not identical, the Commission finds that the forms of eligible collateral for initial and variation margin under the laws of the EU provide protections that are comparable in outcome, as explained above, to the forms of eligible collateral mandated by the Final Margin Rule. Specifically, the Commission finds that the EU's margin regime ensures that assets collected as collateral for initial and variation margin purposes are highly liquid and able to hold their value in a time of financial stress. Because under the EU's margin regime a non- defaulting party would be able to liquidate assets held as initial and variation margin in a reasonable amount of time to generate proceeds that could sufficiently protect collecting entities from losses on uncleared swaps in the event of a counterparty default, the Commission finds the EU's margin regime with respect to the forms of eligible collateral for initial and variation margin for uncleared swaps is comparable in outcome to the Final Margin Rule. K. Requirements for Custodial Arrangements, Segregation, and Rehypothecation As explained in the BCBS/IOSCO Framework, the exchange of initial margin on a net basis may be [[Page 48410]] insufficient to protect two market participants with large gross derivatives exposures to each other in the case of one firm's failure. Thus, the gross initial margin between such firms should be exchanged.\169\ --------------------------------------------------------------------------- \169\ See BCBS/IOSCO Framework, Key principle 5. --------------------------------------------------------------------------- Further, initial margin collected should be held in such a way as to ensure that (i) the margin collected is immediately available to the collecting party in the event of the counterparty's default, and (ii) the collected margin must be subject to arrangements that protect the posting party to the extent possible under applicable law in the event that the collecting party enters bankruptcy.\170\ --------------------------------------------------------------------------- \170\ See id. --------------------------------------------------------------------------- 1. Commission Requirement for Custodial Arrangements, Segregation, and Rehypothecation In keeping with the principles set forth in the BCBS/IOSCO Framework, with respect to custodial arrangements, segregation, and rehypothecation, the Final Margin Rule generally requires that: All assets posted by or collected by CSEs as initial margin must be held by one or more custodians that are not the CSE, the counterparty, or margin affiliates of the CSE or the counterparty.\171\ --------------------------------------------------------------------------- \171\ See Sec. 23.157(a) and (b). --------------------------------------------------------------------------- CSEs must enter into an agreement with each custodian holding initial margin collateral that: [ssquf] Prohibits the custodian from rehypothecating, repledging, reusing, or otherwise transferring (through securities lending, securities borrowing, repurchase agreement, reverse repurchase agreement or other means) the collateral held by the custodian; [ssquf] May permit the custodian to hold cash collateral in a general deposit account with the custodian if the funds in the account are used to purchase an asset that qualifies as eligible collateral (other than equities, investment vehicle securities, or gold), such asset is held in compliance with Sec. 23.157, and such purchase takes place within a time period reasonably necessary to consummate such purchase after the cash collateral is posted as initial margin; and [ssquf] Is a legal, valid, binding, and enforceable agreement under the laws of all relevant jurisdictions including in the event of bankruptcy, insolvency, or a similar proceeding.\172\ --------------------------------------------------------------------------- \172\ See Sec. 23.157(c)(1) and (2). --------------------------------------------------------------------------- A posting party may substitute any form of eligible collateral for posted collateral held as initial margin.\173\ --------------------------------------------------------------------------- \173\ See Sec. 23.157(c)(3). --------------------------------------------------------------------------- A posting party may direct reinvestment of posted collateral held as initial margin in any form of eligible collateral.\174\ --------------------------------------------------------------------------- \174\ See id. --------------------------------------------------------------------------- Collateral that is collected or posted as variation margin is not required to be held by a third party custodian and is not subject to restrictions on rehypothecation, repledging, or reuse.\175\ --------------------------------------------------------------------------- \175\ See Final Margin Rule, 81 FR at 672. --------------------------------------------------------------------------- 2. EU Requirement for Custodial Arrangements, Segregation, and Rehypothecation In keeping with the principles set forth in the BCBS/IOSCO Framework, with respect to custodial arrangements, segregation, and rehypothecation, the EU's margin rules generally require that: Cash collected as initial margin must be maintained in cash accounts at central banks or credit institutions which fulfill all of the following conditions: (i) They are authorized in accordance with Directive 2013/36/EU or are authorized in a third country whose supervisory and regulatory arrangements have been found to be equivalent in accordance with Article 142(2) of Regulation (EU) No 575/ 2013; and (ii) they are neither the posting nor the collecting counterparties, nor part of the same group as either of the counterparties.\176\ --------------------------------------------------------------------------- \176\ See RTS, Article 19(1)(e). --------------------------------------------------------------------------- Any collateral posted as initial or variation margin may be substituted by alternative collateral where all of the following conditions are met: (a) The substitution is made in accordance with the terms of the collateral agreement between the counterparties; (b) the alternative collateral is eligible under the RTS; (c) the value of the alternative collateral is sufficient to meet all margin requirements after applying any relevant haircut.\177\ --------------------------------------------------------------------------- \177\ See RTS, Article 19(2). --------------------------------------------------------------------------- Initial margin shall be protected from the default or insolvency of the collecting counterparty by segregating it in either or both of the following ways: (a) On the books and records of a third party-holder or custodian; (b) via other legally binding arrangements.\178\ --------------------------------------------------------------------------- \178\ See RTS, Article 19(3). --------------------------------------------------------------------------- Counterparties shall ensure that non-cash collateral exchanged as initial margin is segregated as follows: (a) Where collateral is held by the collecting counterparty on a proprietary basis, it shall be segregated from the rest of the proprietary assets of the collecting counterparty; (b) where collateral is held by the posting counterparty on a non-proprietary basis, it shall be segregated from the rest of the proprietary assets of the posting counterparty; (c) where collateral is held on the books and records of a custodian or other third party holder, it shall be segregated from the proprietary assets of that third-party holder or custodian.\179\ --------------------------------------------------------------------------- \179\ See RTS, Article 19(5). --------------------------------------------------------------------------- The collecting counterparty shall not rehypothecate, repledge nor otherwise reuse the collateral collected as initial margin.\180\ --------------------------------------------------------------------------- \180\ See RTS, Article 20(1). --------------------------------------------------------------------------- A third party holder may use the initial margin received in cash for reinvestment purposes.\181\ --------------------------------------------------------------------------- \181\ See RTS, Article 20(2). --------------------------------------------------------------------------- 3. Commission Determination The Commission notes that in one respect, the EU's margin requirements with respect to custodial arrangements are less stringent than those of the Final Margin Rule. Under the Final Margin Rule, all assets posted by or collected by CSEs as initial margin must be held by one or more custodians that are not the CSE, the counterparty, or margin affiliates of the CSE or the counterparty.\182\ The EU's margin rules do not prohibit an FC or NFC+ from using an affiliated entity as custodian to hold initial margin other than cash collected from counterparties. --------------------------------------------------------------------------- \182\ See Sec. 23.157(a) and (b). --------------------------------------------------------------------------- However, the EC has highlighted in its application that Article 19(3) of the RTS, which governs how initial margin must be held, leads with the requirement that ``initial margin shall be protected from the default or insolvency of the collecting counterparty.'' As the applicant further represented, the EC and the European Supervisory Authorities favor the use of third-party holders or custodians for non- cash collateral but recognize through Article 19(3)(b) of the RTS that the legal framework in the EU and, in particular, the Financial Collateral Directive,\183\ allows Member States to authorize other specific legally binding arrangements with equivalent finality and protection. An example, according to the applicant, would be a third- country trust bank that, while not necessarily recognized as a custodian in the EU or individual Member State, may offer equivalent collateral protection, both legally and operationally. --------------------------------------------------------------------------- \183\ See http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:02002L0047-20140702&from=EN. --------------------------------------------------------------------------- To further encourage the use of arrangements that protect initial margin from the default or insolvency of a counterparty, FCs and NFC+s subject to the EU margin regime must get legal certainty (either by way of an internal [[Page 48411]] and independent opinion or via an external independent third party) as to whether the segregation requirements have been met.\184\ In addition, the RTS require counterparties to provide documentation to their competent authority upon request supporting that the segregation arrangements in all relevant jurisdictions meet these requirements. The RTS also require counterparties subject to the EU margin regime to have procedures that ensure ongoing compliance with these requirements, particularly to show that initial margin is freely transferable to the posting counterparty in a timely manner in case of default of the collecting counterparty.\185\ --------------------------------------------------------------------------- \184\ See RTS, Article 19(6). \185\ See RTS, Article 19(1)(g). --------------------------------------------------------------------------- Accordingly, despite the differences in required custodial arrangements, the Commission has determined that the EU's margin requirements applicable to FCs and NFC+s pertaining to custodial arrangements, segregation, and rehypothecation are comparable in outcome to the corresponding requirements under the Final Margin Rule. Specifically, the Commission finds that under both the EU's requirements and the Final Margin Rule, a CSE/FC/NFC+ is required to segregate the initial margin posted by its counterparties under terms that ensure initial margin is protected from the default or insolvency of the collecting counterparty and freely transferable to the posting counterparty in a timely manner in case of any such default. Both regimes also prohibit the rehypothecation of initial margin. Accordingly, the Commission finds that the EU's requirements pertaining to custodial arrangements, segregation, and rehypothecation are comparable in outcome to those required by the Final Margin Rule. L. Requirements for Margin Documentation 1. Commission Requirement for Margin Documentation With respect to requirements for documentation of margin arrangements, the Final Margin Rule generally provides that: CSEs must execute documentation with each counterparty that provides the CSE with the contractual right and obligation to exchange initial margin and variation margin in such amounts, in such form, and under such circumstances as are required by the Final Margin Rule.\186\ --------------------------------------------------------------------------- \186\ See Sec. 23.158(a). --------------------------------------------------------------------------- The margin documentation must specify the methods, procedures, rules, inputs, and data sources to be used for determining the value of uncleared swaps for purposes of calculating variation margin; describe the methods, procedures, rules, inputs, and data sources to be used to calculate initial margin for uncleared swaps entered into between the CSE and the counterparty; and specify the procedures by which any disputes concerning the valuation of uncleared swaps, or the valuation of assets collected or posted as initial margin or variation margin may be resolved.\187\ --------------------------------------------------------------------------- \187\ See Sec. 23.158(b). --------------------------------------------------------------------------- 2. EU Requirement for Margin Documentation With respect to requirements for documentation of margin arrangements, the EU's margin rules generally provide that the terms of all necessary agreements to be entered into by counterparties, at the latest, at the moment in which a non-centrally cleared OTC derivative contract is concluded. Such documentation shall include the terms of the netting agreement and the terms of the exchange of collateral agreement, and (a) any payment obligations arising between counterparties; (b) the conditions for netting payment obligations; (c) events of default or other termination events of the non-centrally cleared OTC derivative contracts; (d) all calculation methods used in relation to payment obligations; (e) the conditions for netting payment obligations upon termination, (f) the transfer of rights and obligations upon termination; (g) the governing law of the transactions of the non-centrally cleared OTC derivative contracts.\188\ --------------------------------------------------------------------------- \188\ See RTS, Article 2(g). --------------------------------------------------------------------------- 3. Commission Determination Based on the foregoing and the representations of the applicant, the Commission has determined that the EU's margin requirements pertaining to margin documentation are substantially the same as the margin documentation requirements under the Final Margin Rule. Specifically, the Commission finds that under both the EU's requirements and the Final Margin Rule, a CSE/FC/NFC+ is required to enter into documentation with each OTC derivative/swap counterparty that sets forth the method for calculating and transferring initial and variation margin. Accordingly, the Commission finds that the EU's requirements pertaining to margin documentation are comparable in outcome to those required by the Final Margin Rule. M. Cross-Border Application of the Margin Regime 1. Cross-Border Application of the Final Margin Rule The general cross-border application of the Final Margin Rule, as set forth in the Cross-Border Margin Rule, is discussed in detail in Section II above. However, Sec. Sec. 23.160(d) and (e) of the Cross- Border Margin Rule also provide certain alternative requirements for uncleared swaps subject to the laws of a jurisdiction that does not reliably recognize close-out netting under a master netting agreement governing a swap trading relationship, or that has inherent limitations on the ability of a CSE to post initial margin in compliance with the custodial arrangement requirements \189\ of the Final Margin Rule.\190\ --------------------------------------------------------------------------- \189\ See Sec. 23.157 and Section IV(K) above. \190\ See Sec. 23.160(d) and (e). Paragraph (d) of the rule addresses requirements for non-netting jurisdictions, and paragraph (e) addresses jurisdictions where compliance with custodial arrangement requirements is unavailable. --------------------------------------------------------------------------- Section 23.160(d) generally provides that where a jurisdiction does not reliably recognize close-out netting, the CSE must treat the uncleared swaps covered by a master netting agreement on a gross basis with respect to collecting initial and variation margin, but may treat such swaps on a net basis with respect to posting initial and variation margin.\191\ --------------------------------------------------------------------------- \191\ See id. --------------------------------------------------------------------------- Section 23.160(e) generally provides that where certain CSEs are required to transact with certain counterparties in uncleared swaps through an establishment in a jurisdiction where, due to inherent limitations in legal or operational infrastructure, it is impracticable to require posted initial margin to be held by an independent custodian pursuant to Sec. 23.157, the CSE is required to collect initial margin in cash (as described in Sec. 23.156(a)(1)(i)) and post and collect variation margin in cash, but is not required to post initial margin. In addition, the CSE is not required to hold the initial margin collected with an unaffiliated custodian.\192\ Finally, the CSE may only enter into such affected transactions up to 5% of its total uncleared swap notional outstanding in each broad category of swaps described in Sec. 23.154(b)(2)(v). --------------------------------------------------------------------------- \192\ See Sec. Sec. 23.160(e) and 23.157(b). --------------------------------------------------------------------------- 2. Cross-Border Application of EU's Margin Regime With respect to cross-border transactions, the EU's margin requirements generally provide that the [[Page 48412]] EC may, in order to avoid duplicative and conflicting requirements in respect of derivatives transactions, adopt implementing acts declaring that the legal, supervisory, and enforcement arrangements of a non-EU country are equivalent to the margin requirements for non-centrally cleared OTC derivatives in Article 11 or EMIR.\193\ An implementing act determining equivalence shall imply that counterparties entering into a transaction within the scope of EMIR will be deemed to have fulfilled their requirements where at least one of the counterparties is established in the third country in respect of which the implementing act has been adopted, and with respect to the requirements to which the implementing act applies.\194\ --------------------------------------------------------------------------- \193\ See EMIR, Article 13(2). \194\ See EMIR, Article 13(3). --------------------------------------------------------------------------- With respect to non-centrally cleared OTC derivatives subject to the laws of a jurisdiction where legal enforceability of netting agreements or collateral protection cannot be ensured, the EU's margin regime provides that: Where counterparties enter into a netting or an exchange of collateral agreement, they shall perform an independent legal review of the enforceability of those agreements. The review may be conducted by an internal independent unit or by an independent third party.\195\ --------------------------------------------------------------------------- \195\ See RTS, Article 2(3). --------------------------------------------------------------------------- Counterparties shall perform an independent legal review in order to verify that the segregation arrangement meets the requirements of the RTS. The review may be conducted by an internal independent unit or by an independent third party.\196\ --------------------------------------------------------------------------- \196\ See RTS, Article 19(6). --------------------------------------------------------------------------- Counterparties established in the EU may provide in their risk management procedures that variation and initial margins are not required to be posted for non-centrally cleared OTC derivative contracts concluded with counterparties established in a third-country for which any of the following apply: (a) The legal review referred to in Article 2(3) of the RTS confirms that the netting agreement and, where used, the exchange of collateral agreement cannot be legally enforced with certainty at all times; (b) the legal review referred to in Article 19(6) of the RTS confirms that the segregation requirements of the RTS cannot be met. For the purposes of subparagraph (a), counterparties established in the EU shall collect margin on a gross basis.\197\ --------------------------------------------------------------------------- \197\ See RTS, Article 31(1). --------------------------------------------------------------------------- Counterparties established in the EU may provide in their risk management procedures that variation and initial margins are not required to be posted or collected for contracts concluded with counterparties established in a third-country where all of the following conditions apply: (a) The legal review referred to in Article 2(3) of the RTS confirms that the netting agreement and, where used, the exchange of collateral agreement cannot be legally enforced with certainty at all times and, where applicable, the legal review referred to in Article 19(6) of the RTS confirms that the segregation requirements of the RTS cannot be met; (b) the legal reviews confirm that collecting collateral in accordance with this RTS is not possible, even on a gross basis; and (c) the OTC derivatives in a counterparty's portfolio from counterparties in non-netting jurisdictions is below 2.5%.\198\ --------------------------------------------------------------------------- \198\ See RTS, Article 31(2) and (3). --------------------------------------------------------------------------- 3. Commission Determination Based on the foregoing and the representations of the applicant, the Commission finds that the EU's margin regime with respect to its cross-border application is comparable in outcome to that of the Final Margin Rule as set forth in the Cross-Border Margin Rule. First, the Commission recognizes that the EU's margin regime permits substituted compliance to substantially the same extent as the Cross-Border Margin Rule. For example, where a CSE finds itself subject to both the Final Margin Rule and the EU's margin regime, it may be possible under an EC equivalence determination that such CSE's compliance with the Final Margin Rule will have fulfilled the corresponding obligation under the EU's margin regime. Second, with respect to transactions subject to the laws of a non- netting jurisdiction or a jurisdiction where collateral protection cannot be ensured, the EU's margin regime requires that margin be collected on a gross basis and, where that is not possible, that the FC/NFC+ limit their dealings in such jurisdiction to 2.5% of the OTC derivatives in the FC/NFC+'s portfolio. While this framework for non- centrally cleared OTC derivatives transacted with counterparties in these types of jurisdictions is not identical to the Final Margin Rule on this subject, the Commission recognizes that the conditions requiring that margin be collected on a gross basis or, where that is not possible, such transactions be subject to a conservative limit, will serve to mitigate the potential risks associated with these types of transactions. The RTS also provides that ``these treatments would be considered sufficiently prudent, because there are also other risk- mitigation techniques as an alternative to margins.'' \199\ Moreover, before a counterparty may even consider collecting margin on a gross basis or be permitted to transact with counterparties in a non-netting jurisdiction up to any level, the EU margin rules obligate counterparties to conduct a legal review on the enforceability of netting agreements in the third-country jurisdiction and to obtain a negative independent legal review.\200\ --------------------------------------------------------------------------- \199\ See RTS, Recital (18). \200\ See RTS, Article 31(2). --------------------------------------------------------------------------- The Commission also notes that a CSE, including a CSE that would be operating under a substituted compliance determination, is required to have a risk management program pursuant Sec. 23.600, and thus the Commission has the authority to inquire as to the adequacy of the risk management covering uncleared swaps in non-netting jurisdictions. Having considered the similarities and differences described above, the Commission finds that: (1) The availability of reciprocity of substituted compliance available from the EU makes the EU margin regime comparable in outcome in this respect to that of the Final Margin Rule and the Cross-Border Margin Rule; and (2) the conditions that would allow an FC/NFC+ to engage in up to 2.5% of its OTC derivatives portfolio in jurisdictions that do not recognize non-netting agreements or where collateral protection cannot be ensured, including that a counterparty must obtain a negative independent legal opinion about the enforceability of netting agreements before even considering trading with counterparties in non-netting jurisdictions, plus other risk- mitigation techniques that FC/NFC+s must have, make the EU margin regime comparable in outcome in this respect to that of the Final Margin Rule and the Cross-Border Margin Rule. Accordingly, the Commission finds the cross-border aspects of the EU's margin regime comparable in outcome to those of the Commission. N. Supervision and Enforcement The Commission has a long history of regulatory cooperation with the Member State competent authorities, including cooperation in the regulation of registrants of the Commission that are also FCs.\201\ These competent [[Page 48413]] authorities, as noted above, are responsible for supervising FCs as part of their ongoing prudential regulation and supervision of such FCs, will enforce the RTS, which are directly applicable in the Member States, and will take all measures necessary to ensure that those rules are implemented. Thus, the Commission finds that the EC, through the competent authorities, has the necessary powers to supervise, investigate, and discipline entities for compliance with its margin requirements and recognizes the relevant competent authorities' ongoing efforts to detect and deter violations of, and ensure compliance with, the margin requirements applicable in the EU. --------------------------------------------------------------------------- \201\ To facilitate this cooperation, the Commission has concluded memoranda of understanding with many of the competent authorities. See the Commission's Web site at http://www.cftc.gov/International/MemorandaofUnderstanding/index.htm. --------------------------------------------------------------------------- V. Conclusion As detailed above, the Commission has noted several differences between the Final Margin Rule and the EU margin rules. However, having considered the scope and objectives of the margin requirements for uncleared swaps under the laws of the EU,\202\ whether such margin requirements achieve comparable outcomes to the Commission's corresponding margin requirements,\203\ and the ability of the Member State competent authorities to supervise and enforce compliance with the margin requirements for non-centrally cleared OTC derivatives under the laws of the EU,\204\ the Commission has determined that the EU margin rules are comparable in outcome to the Final Margin Rule. --------------------------------------------------------------------------- \202\ See Sec. 23.160(c)(3)(i). \203\ See Sec. 23.160(c)(3)(ii). As discussed above, the Commission's Final Margin Rule is based on the BCBS/IOSCO Framework; therefore, the Commission expects that the relevant foreign margin requirements would conform to such Framework at minimum in order to be deemed comparable in outcome to the Commission's corresponding margin requirements. \204\ See Sec. 23.160(c)(3)(iii). See also Sec. 23.160(c)(3)(iv) (indicating the Commission would also consider any other relevant facts and circumstances). --------------------------------------------------------------------------- As noted above, the Final Margin Rule's regulatory objective is to ensure the safety and soundness of CSEs in order to offset the greater risk to CSEs and the financial system arising from the use of swaps that are not cleared. The EU margin rules require counterparties to apply robust risk-mitigation techniques to their bilateral relationships to reduce counterparty credit risk and to mitigate the potential systemic risk that could arise. Moreover, the EU margin rules achieve comparable outcomes to the Final Margin Rule in the following specific areas: The products and entities subject to the EU's margin requirements; the treatment of inter-affiliate derivative transactions; the methodologies for calculating the amounts of initial and variation margin; the process and standards for approving models for calculating initial and variation margin models; the timing and manner in which initial and variation margin must be collected and/or paid; any threshold levels or amounts; risk management controls for the calculation of initial and variation margin; eligible collateral for initial and variation margin; the requirements of custodial arrangements, including segregation of margin and rehypothecation; margin documentation requirements; and the cross-border application of the EU's margin regime. Finally, based on the long history of regulatory cooperation between the Commission and Member State competent authorities with supervisory and enforcement authority under the RTS, the Commission finds that the EC, through the competent authorities, has the necessary powers to supervise, investigate, and discipline entities for compliance with its margin requirements, and recognizes the relevant authorities' ongoing efforts to detect and deter violations of, and ensure compliance with, the margin requirements applicable in the EU. Accordingly, a CSE that is subject to both the Final Margin Rule and the EU's margin rules with respect to an uncleared swap that is also a non-centrally cleared OTC derivative may rely on substituted compliance for all aspects of the Final Margin Rule and the Cross- Border Margin Rule. Any such CSE that, in accordance with this comparability determination, complies with the EU margin rules, would be deemed to be in compliance with the Final Margin Rule but would remain subject to the Commission's examination and enforcement authority.\205\ --------------------------------------------------------------------------- \205\ See Sec. 23.160(c)(4). Issued in Washington, DC, on October 13, 2017, by the Commission. Christopher J. Kirkpatrick, Secretary of the Commission. Appendix to Comparability Determination for the European Union: Margin Requirements for Uncleared Swaps for Swap Dealers and Major Swap Participants--Commission Voting Summary On this matter, Chairman Giancarlo and Commissioners Quintenz and Behnam voted in the affirmative. No Commissioner voted in the negative. [FR Doc. 2017-22616 Filed 10-17-17; 8:45 am] BILLING CODE 6351-01-P
![48394 Federal Register / Vol. 82, No. 200 / Wednesday, October 18, 2017 / Rules and Regulations
Issued in Renton, Washington, on October Correction Commission, Three Lafayette Centre,
12, 2017. 1155 21st Street NW., Washington, DC
In the final special conditions
Victor Wicklund, 20581.
document (FR Doc. 2016–19994),
Manager, Transport Standards Branch, Policy published on August 22, 2016 (81 FR SUPPLEMENTARY INFORMATION:
and Innovation Division, Aircraft
Certification Service.
56474), make the following correction. I. Introduction
On page 56474, first column, the
[FR Doc. 2017–22544 Filed 10–17–17; 8:45 am] Pursuant to section 4s(e) of the CEA,1
special conditions title is corrected to
BILLING CODE 4910–13–P
read: the Commission is required to
Special Conditions: Bombardier Inc. promulgate margin requirements for
Model BD–700–2A12 and BD–700– uncleared swaps applicable to each SD
DEPARTMENT OF TRANSPORTATION and MSP for which there is no
2A13 Airplanes; Airplane Electronic-
System Security Protection from Prudential Regulator (collectively,
Federal Aviation Administration
Unauthorized Internal Access ‘‘Covered Swap Entities’’ or ‘‘CSEs’’).2
The Commission published final margin
14 CFR Part 25 Issued in Renton, Washington, on October
12, 2017.
requirements for such CSEs in January
2016 (the ‘‘Final Margin Rule’’).3
[Docket No. FAA–2015–6359; Special Victor Wicklund,
Subsequently, on May 31, 2016, the
Conditions No. 25–633–SC] Manager, Transport Standards Branch, Policy Commission published in the Federal
and Innovation Division, Aircraft
Certification Service.
Register its final rule with respect to the
Special Conditions: Bombardier Inc.
cross-border application of the
Model BD–700–2A12 and BD–700– [FR Doc. 2017–22525 Filed 10–17–17; 8:45 am]
Commission’s margin requirements for
2A13 Airplanes; Airplane Electronic- BILLING CODE 4910–13–P
uncleared swaps applicable to CSEs
System Security Protection From
(hereinafter, the ‘‘Cross-Border Margin
Unauthorized Internal Access
Rule’’).4 The Cross-Border Margin Rule
AGENCY: Federal Aviation COMMODITY FUTURES TRADING sets out the circumstances under which
Administration (FAA), DOT. COMMISSION a CSE is allowed to satisfy the
ACTION: Final special conditions;
requirements under the Final Margin
17 CFR Chapter I
correction. Rule by complying with comparable
Comparability Determination for the foreign margin requirements
SUMMARY: This document corrects an European Union: Margin Requirements (‘‘substituted compliance’’); offers
error that appeared in Docket No. FAA– for Uncleared Swaps for Swap Dealers certain CSEs a limited exclusion from
2015–6359, Special Conditions No. 25– and Major Swap Participants the Commission’s margin requirements;
633–SC, which was published in the and outlines a framework for assessing
Federal Register on August 22, 2016. AGENCY: Commodity Futures Trading whether a foreign jurisdiction’s margin
The error is an incorrect word in the Commission. requirements are comparable in
title of the final special conditions ACTION: Notification of determination. outcome to the Final Margin Rule
document. (‘‘comparability determinations’’). The
SUMMARY: The following is the analysis Commission promulgated the Cross-
DATES: The effective date of this and determination of the Commodity Border Margin Rule after close
correction is October 18, 2017. Futures Trading Commission consultation with the Prudential
FOR FURTHER INFORMATION CONTACT: (‘‘Commission’’) regarding a request by Regulators and in light of comments
Varun Khanna, FAA, Airplane and the European Commission (‘‘EC’’) that
Flight Crew Interface, AIR–671, Aircraft the Commission determine that laws 17 U.S.C. 1 et seq.
Certification Service, 1601 Lind Avenue and regulations applicable in the 2 See 7 U.S.C. 6s(e)(1)(B). SDs and MSPs for
SW., Renton, Washington 98057–3356; European Union (‘‘EU’’) provide a which there is a Prudential Regulator must meet the
sufficient basis for an affirmative margin requirements for uncleared swaps
telephone 425–227–1298; facsimile established by the applicable Prudential Regulator.
425–227–1149. finding of comparability with respect to 7 U.S.C. 6s(e)(1)(A). See also 7 U.S.C. 1a(39)
SUPPLEMENTARY INFORMATION:
margin requirements for uncleared (defining the term ‘‘Prudential Regulator’’ to
swaps applicable to certain swap include: The Board of Governors of the Federal
Background dealers (‘‘SDs’’) and major swap Reserve System; the Office of the Comptroller of the
Currency; the Federal Deposit Insurance
On August 22, 2016, the Federal participants (‘‘MSPs’’) registered with Corporation; the Farm Credit Administration; and
Register published a document the Commission. As discussed in detail the Federal Housing Finance Agency). The
designated as Docket No. FAA–2015– herein, the Commission has found the Prudential Regulators published final margin
margin requirements for uncleared requirements in November 2015. See Margin and
6359, Final Special Conditions No. 25– Capital Requirements for Covered Swap Entities, 80
633–SC (81 FR 56474). The document swaps under the laws and regulations of FR 74840 (Nov. 30, 2015) (‘‘Prudential Regulators’
issued special conditions pertaining to the EU comparable in outcome to those Final Margin Rule’’).
system security to protect against under the Commodity Exchange Act 3 See Margin Requirements for Uncleared Swaps
unauthorized access to digital systems (‘‘CEA’’) and Commission regulations. for Swap Dealers and Major Swap Participants, 81
FR 636 (Jan. 6, 2016). The Final Margin Rule, which
architecture composed of several DATES: This determination was made became effective April 1, 2016, is codified in part
connected data networks that will have and issued by the Commission on 23 of the Commission’s regulations. See §§ 23.150—
the capability to allow connectivity of October 13, 2017. 23.159 and 23.161. The Commission’s regulations
are found in Chapter I of Title 17 of the Code of
the passenger-service computer systems
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FOR FURTHER INFORMATION CONTACT: Federal Regulations, 17 CFR parts 1 through 199.
to the airplane critical systems and data Matthew Kulkin, Director, 202–418– 4 See Margin Requirements for Uncleared Swaps
networks. As published, the document 5213, mkulkin@cftc.gov, or Katherine S. for Swap Dealers and Major Swap Participants—
contained an error in the title of the Driscoll, Associate Chief Counsel, 202– Cross-Border Application of the Margin
Requirements, 81 FR 34818 (May 31, 2016). The
special conditions document, stating 418–5544, kdriscoll@cftc.gov, Division Cross-Border Margin Rule, which became effective
‘‘Authorized’’ where ‘‘Unauthorized’’ is of Swap Dealer and Intermediary August 1, 2016, is codified in part 23 of the
correct. Oversight, Commodity Futures Trading Commission’s regulations. See § 23.160.
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![48398 Federal Register / Vol. 82, No. 200 / Wednesday, October 18, 2017 / Rules and Regulations
derivative as defined under the laws of swaps exposure 46 or a swap entity 47 rules, no margin is required for non-
the EU. In such cases, the Final Margin that enters into a swap with a CSE. The centrally cleared OTC derivatives with
Rule would apply to the transaction but variation margin obligations of CSEs NFCs that fall below the clearing
the EU’s margin rules would not apply under the Final Margin Rule apply more threshold (‘‘NFC-’’) or non-EU entities
and thus, substituted compliance would broadly. Such obligations apply to that would be NFC-s if established in
not be available. The CSE could not counterparties that are swap entities and the EU.53 However, under the EU
choose to comply with the EU’s margin all financial end users, regardless of margin rules, counterparties must take
rules in place of the Final Margin Rule. their level of material swaps exposure.48 into account the different risk profiles of
As represented by the applicant, the NFC-s when entering into non-centrally
Likewise, if a transaction is a non-
EU’s margin rules apply to all financial cleared OTC derivatives with such
centrally cleared OTC derivative as
counterparties, which include counterparties and determine whether
defined under the laws of the EU but
investment firms, credit institutions, or not the level of counterparty credit
not an uncleared swap subject to the
insurance companies, and alternative risk posed by those NFC-s needs to be
Final Margin Rule, a CSE could not
investment funds that are authorized or mitigated through the exchange of
choose to comply with the Final Margin
registered in accordance with various collateral.54 Like the Final Margin Rule,
Rule pursuant to this determination,
EU directives (‘‘FC’’).49 CCPs not the EU margin rules include a threshold
unless the EU determines that it will authorized as credit institutions are under which initial margin
permit the EU entity to follow the outside the scope of Article 11 of EMIR requirements will not apply, while the
Commission’s margin requirements. and CCPs authorized as credit variation margin requirements apply
CSEs are solely responsible for institutions are exempt from the RTS.50 more broadly.55
determining whether a particular The EU’s margin rules also apply to Given the definitional differences and
transaction is both an uncleared swap non-financial counterparties (any EU differences in activity thresholds with
and a non-centrally cleared OTC entity other than an FC or a CCP 51) respect to the scope of application of the
derivative before relying on substituted (‘‘NFC’’) that are above a certain clearing Final Margin Rule and the EU’s margin
compliance under the comparability threshold (‘‘NFC+’’).52 Under the EU requirements, the Commission notes the
determinations set forth below.
possibility that the Final Margin Rule
46 See § 23.150, which states that ‘‘material swaps
C. Entities Subject to Margin and the EU’s margin rules may not
exposure’’ for an entity means that the entity and
Requirements its margin affiliates have an average daily aggregate
apply to every uncleared swap that a
notional amount of uncleared swaps, uncleared CSE may enter into with a EU
As stated previously, the security-based swaps, foreign exchange forwards, counterparty. For example, it appears
Commission’s Final Margin Rule and and foreign exchange swaps with all counterparties possible that a financial end user with
Cross-Border Margin Rule apply only to for June, July and August of the previous calendar
year that exceeds $8 billion, where such amount is
‘‘material swaps exposure’’ would meet
CSEs, i.e., SDs and MSPs registered with calculated only for business days. That provision the definition of ‘‘covered counterparty’’
the Commission for which there is not further states that an entity shall count the average under the Final Margin Rule (and thus
a Prudential Regulator.43 Thus, only daily aggregate notional amount of an uncleared the initial and variation margin
such CSEs may rely on the swap, an uncleared security-based swap, a foreign
exchange forward, or a foreign exchange swap
determinations herein for substituted between the entity and a margin affiliate only one the clearing threshold is exceeded.’’). The clearing
compliance, while CSEs for which there time. For purposes of this calculation, an entity threshold values are measured by asset class as
shall not count a swap that is exempt pursuant to follows:
is a Prudential Regulator must look to (a) EUR 1 billion in gross notional value for OTC
§ 23.150(b) or a security-based swap that qualifies
the determinations of the Prudential for an exemption under section 3C(g)(10) of the credit derivative contracts;
Regulators. Securities Exchange Act of 1934 (15 U.S.C. 78c– (b) EUR 1 billion in gross notional value for OTC
3(g)(4)) and implementing regulations or that equity derivative contracts;
CSEs are not required to collect
satisfies the criteria in section 3C(g)(1) of the (c) EUR 3 billion in gross notional value for OTC
and/or post margin with every Securities Exchange Act of 1934 (15 U.S.C. 78– interest rate derivative contracts;
uncleared swap counterparty. Under the c3(g)(4)) and implementing regulations. (d) EUR 3 billion in gross notional value for OTC
Final Margin Rule, the initial margin 47 ‘‘Swap entity’’ is defined in § 23.150 as a foreign exchange derivative contracts;
obligations of CSEs apply only to person that is registered with the Commission as a (e) EUR 3 billion in gross notional value for OTC
swap dealer or major swap participant pursuant to commodity derivative contracts and other OTC
uncleared swaps with counterparties the Act. derivative contracts not provided for under points
that meet the definition of ‘‘covered 48 See § 23.153. (a) to (d).
counterparty’’ in § 23.151.44 Such 49 See EMIR, Article 11 (Risk-Mitigation See Article 11 of Commission Delegated
definition provides that a ‘‘covered Techniques for OTC Derivative Contracts Not Regulation (EU) No 149/2013 of December 19, 2012
counterparty’’ is a counterparty that is a Cleared by a CCP). While the definition of Supplementing EMIR with Regard to Regulatory
‘‘financial counterparty’’ under EMIR includes Technical Standards on Indirect Clearing
financial end user 45 with material credit institutions authorized in accordance with Arrangements, the Clearing Obligation, the Public
Directive 2006/48/EU, CCPs that are authorized as Register, Access to a Trading Venue, Non-Financial
43 See 7 U.S.C. 6s(e)(1)(B). SDs and MSPs for credit institutions are exempted from the EU’s Counterparties, and Risk Mitigation Techniques for
which there is a Prudential Regulator must meet the margin rules. See RTS, Article 23. As explained in Uncleared OTC Derivatives (pursuant to Article
margin requirements for uncleared swaps the RTS, since CCPs might be authorized as a credit 10(4)(b) of EMIR).
established by the applicable Prudential Regulator. institution according to Union legislation, it is 53 See RTS, Article 24.
7 U.S.C. 6s(e)(1)(A). See also 7 U.S.C. 1a(39) necessary to excluded non-centrally cleared OTC 54 See RTS, Recital (2).
(defining the term ‘‘Prudential Regulator’’ to derivative contracts that CCPs enter into during a 55 See RTS, Article 28, stating: Counterparties
include the Board of Governors of the Federal default management process from the requirements may provide in their risk management procedures
Reserve System; the Office of the Comptroller of the of this Regulation since those contracts are already that initial margins are not collected for all new
Currency; the Federal Deposit Insurance subject to the provisions of Commission Delegated OTC derivative contracts entered into within a
Corporation; the Farm Credit Administration; and Regulation (EU) No 153/2013 and therefore they are calendar year where one of the two counterparties
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the Federal Housing Finance Agency). The not subject to the provisions of these Regulations. has an aggregate month-end average notional
Prudential Regulators published final margin 50 See RTS, Article 23.
amount of non-centrally cleared OTC derivatives for
requirements in November 2015. See Prudential 51 See EMIR, Article 2(9).
the months March, April and May of the preceding
Regulators’ Final Margin Rule, 80 FR 74840 (Nov. 52 See EMIR, Article 11(3) (‘‘[NFCs] . . . shall year of below EUR 8 billion. The aggregate month-
30, 2015). have risk-management procedures that require the end average notional amount referred to in the first
44 See § 23.152.
timely, accurate and appropriately segregated subparagraph shall be calculated at the
45 See definition of ‘‘Financial end user’’ in exchange of collateral with respect to OTC counterparty level or at the group level where the
§ 23.150. derivative contracts that are entered into on or after counterparty belongs to a group.
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![Federal Register / Vol. 82, No. 200 / Wednesday, October 18, 2017 / Rules and Regulations 48399
requirements) while at the same time with one exception explained below, a competitive disadvantage to firms in
fall under the EU’s clearing threshold provides that a CSE is not required to other jurisdictions.
(an NFC-) and not be subject the EU collect initial margin 58 from a margin The Final Margin Rule however, does
margin requirements. It may also be affiliate provided that the CSE meets the require CSEs to exchange variation
possible that the Final Margin Rule’s following conditions: (i) The swaps are margin with affiliates that are SDs,
definition of ‘‘financial end user’’ could subject to a centralized risk management MSPs, or financial end users (as is also
capture an entity that is an NFC under program that is reasonably designed to required under the Prudential
the EU’s margin regime. monitor and to manage the risks Regulators’ rules).63 The Commission
With these differences in scope in associated with the inter-affiliate swaps; stated that marking open positions to
mind, the Commission reiterates that no and (ii) the CSE exchanges variation market each day and requiring the
CSE may rely on substituted compliance margin with the margin affiliate.59 posting or collection of variation margin
unless it and its transaction are subject In an exception to the foregoing reduces the risks of inter-affiliate swaps.
to both the Final Margin Rule and the general rule, the Final Margin Rule does
2. Requirement for Treatment of Inter-
EU’s margin rules; a CSE may not require CSEs to collect initial margin
Affiliate Derivatives Under the Laws of
voluntarily comply with the EU’s from non-U.S. affiliates that are
the EU
margin rules where such law does not financial end users that are not subject
otherwise apply. Likewise, a CSE that is to initial margin collection requirements Under Article 11 of EMIR, the EU’s
not seeking to rely on substituted on their own outward-facing swaps with margin requirements generally apply to
compliance should understand that the financial end users that are not intragroup transactions as defined in
EU’s margin rules may apply to its comparable in outcome to the Final Article 3 of EMIR. Such ‘‘intragroup
counterparty irrespective of the CSE’s Margin Rule.60 This provision is an transactions’’ are defined differently for
decision to comply with the Final important anti-evasion measure. It is intragroup transactions in relation to an
Margin Rule. designed to prevent the potential use of FC (‘‘FC Intragroup Transactions’’) 64
affiliates to avoid collecting initial and intragroup transactions in relation
D. Treatment of Inter-Affiliate margin from third parties. For example, to an NFC (‘‘NFC Intragroup
Derivative Transactions suppose that an unregistered non-U.S. Transactions’’ and, together with FC
The BCBS/IOSCO Framework affiliate of a CSE enters into a swap with Intragroup Transactions, ‘‘Intragroup
recognizes that the treatment of inter- a financial end user and does not collect Transactions’’).65 What the EU defines
affiliate derivative transactions will vary initial margin. Suppose further that the
63 See § 23.159(b); see also Prudential Regulators’
between jurisdictions. Thus, the BCBS/ affiliate then enters into a swap with the
Final Margin Rule, 80 FR 74909.
IOSCO Framework does not set CSE. Effectively, the risk of the swap 64 Article 3(2) of EMIR defines an ‘‘intragroup
standards with respect to the treatment with the third party would have been transaction’’ for an FC to be:
of inter-affiliate transactions. Rather, it passed to the CSE without any initial (a) An OTC derivative contract entered into with
recommends that regulators in each margin. The rule would require this another counterparty which is part of the same
group, provided that the following conditions are
jurisdiction review their own legal affiliate to post initial margin with the met:
frameworks and market conditions and CSE in such cases. The rule would (i) The financial counterparty is established in the
put in place margin requirements further require that the CSE collect Union or, if it is established in a third country, the
applicable to inter-affiliate transactions initial margin even if the affiliate routed Commission has adopted an implementing act
under Article 13(2) in respect of that third country;
as appropriate.56 the trade through one or more other
(ii) the other counterparty is a financial
affiliates.61 counterparty, a financial holding company, a
1. Commission Requirements for The Commission has stated that its financial institution or an ancillary services
Treatment of Inter-Affiliate Transactions inter-affiliate initial margin requirement undertaking subject to appropriate prudential
The Commission determined through is consistent with its goal of requirements;
(iii) both counterparties are included in the same
its Final Margin Rule to provide rules harmonizing its margin rules as much as consolidation on a full basis; and
for swaps between ‘‘margin affiliates.’’ possible with the BCBS/IOSCO (iv) both counterparties are subject to appropriate
In defining ‘‘margin affiliate,’’ those Framework. Such Framework, for centralised risk evaluation, measurement and
rules provide that a company is a example, states that the exchange of control procedures;
margin affiliate of another company if: (b) an OTC derivative contract entered into with
initial and variation margin by affiliated another counterparty where both counterparties are
(1) Either company consolidates the parties ‘‘is not customary’’ and that part of the same institutional protection scheme,
other on a financial statement prepared initial margin in particular ‘‘would referred to in Article 80(8) of Directive 2006/48/EC,
in accordance with U.S. Generally likely create additional liquidity provided that the condition set out in point (a)(ii)
of this paragraph is met;
Accepted Accounting Principles, the demands.’’ 62 With an understanding (c) an OTC derivative contract entered into
International Financial Reporting that many authorities, such as those in between credit institutions affiliated to the same
Standards, or other similar standards; Europe and Japan, are not expected to central body or between such credit institution and
(2) both companies are consolidated require initial margin for inter-affiliate the central body, as referred to in Article 3(1) of
Directive 2006/48/EC; or
with a third company on a financial swaps, the Commission recognized that
(d) an OTC derivative contract entered into with
statement prepared in accordance with requiring the posting and collection of a non-financial counterparty which is part of the
such principles or standards; or (3) for initial margin for inter-affiliate swaps same group provided that both counterparties are
a company that is not subject to such generally would be likely to put CSEs at included in the same consolidation on a full basis
principles or standards, if consolidation and they are subject to an appropriate centralised
risk evaluation, measurement and control
as described in (1) or (2) would have 58 ‘‘Initial margin’’ is margin exchanged to protect
procedures and that counterparty is established in
occurred if such principles or standards against a potential future exposure and is defined the Union or in a third-country jurisdiction for
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in § 23.151 to mean the collateral, as calculated in which the Commission has adopted an
had applied.57 accordance with § 23.154 that is collected or posted
With respect to swaps between implementing act as referred to in Article 13(2) in
in connection with one or more uncleared swaps. respect of that third country.
margin affiliates, the Final Margin Rule, 59 See § 23.159(a).
65 Article 3(1) of EMIR defines an ‘‘intragroup
60 See § 23.159(c).
transaction’’ for an NFC to be:
56 See BCBS/IOSCO Framework, Element 6: 61 See id.
[A]n OTC derivative contract entered into with
Treatment of transactions with affiliates. 62 See BCBS/IOSCO Framework, Element 6: another counterparty which is part of the same
57 § 23.151. Treatment of transactions with affiliates. Continued
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![48404 Federal Register / Vol. 82, No. 200 / Wednesday, October 18, 2017 / Rules and Regulations
legislation and control whether the posted may not be set-off against same business day of the calculation
models adopted by these entities amounts to be collected from the same date.125
comply with the requirements under the counterparty). • Where two counterparties are
EU margin rules. Furthermore, Article With respect to the timing and located in the same time-zone, the
12 of EMIR grants the competent manner for collection or posting of calculation shall be based on the netting
authorities in each Member State the variation margin, the Final Margin Rule set of the previous business day.126
authority to impose fines in case of generally provides that: • Where two counterparties are not
infringement of the rules promulgated • Where a CSE is required to collect located in the same time-zone, the
under EMIR, such as the RTS.119 Such variation margin, it must be collected on calculation shall be based on the
infringement could include an FC’s or or before the business day after transactions in the netting set which are
NFC+’s violations of the provisions execution of an uncleared swap, and entered into before 16:00 hours of the
under Section 4 of the RTS that thereafter the CSE must continue to previous business day of the time-zone
establish the general requirements for collect the required variation margin where it is first 16:00 hours.127
initial margin models.120 amount, if any, each business day as re- • In the event of a dispute over the
calculated each business day until such amount of initial margin due,
G. Timing and Manner for Collection or
uncleared swap is terminated or counterparties shall provide at least the
Payment of Initial and Variation Margin
expires.121 part of the initial margin amount that is
1. Commission Requirement for Timing • Where a CSE is required to post not being disputed within the same
and Manner for Collection or Payment variation margin, it must be posted on business day of the calculation date.128
of Initial and Variation Margin or before the business day after With respect to the timing and
With respect to the timing and execution of an uncleared swap, and manner for collection or posting of
manner for collection or posting of thereafter the CSE must continue to post variation margin, the EU’s margin rules
initial margin, the Final Margin Rule the required variation margin amount, if generally provide that:
generally provides that: any, each business day as re-calculated • Counterparties shall calculate
• Where a CSE is required to collect each business day until such uncleared variation margin at least on a daily
initial margin, it must be collected on or swap is terminated or expires.122 basis.129
before the business day after execution With respect to both initial and • The posting counterparty shall
of an uncleared swap, and thereafter the variation margin, a CSE shall not be provide the variation margin as follows:
CSE must continue to hold initial deemed to have violated its obligation to (a) Within the same business day of the
margin in an amount equal to or greater collect or post margin if, inter alia, it calculation date; (b) where certain
than the required initial margin amount makes timely initiation of dispute conditions are met,130 within two
as re-calculated each business day until resolution mechanisms, including business days of the calculation date.131
such uncleared swap is terminated or pursuant to § 23.504(b)(4).123 • In the event of a dispute over the
expires. amount of variation margin due,
2. EU Requirements for Timing and
• Where a CSE is required to post
Manner for Collection of Initial and 125 See RTS, Article 13(2).
initial margin, it must be posted on or
Variation Margin 126 See RTS, Article 9(3)(a).
before the business day after execution 127 See RTS, Article 9(3)(b).
of an uncleared swap, and thereafter the With respect to the timing and
128 See RTS, Article 13(3).
CSE must continue to post initial manner for collection or posting of 129 See RTS, Article 9(1).
margin in an amount equal to or greater initial margin, the EU’s margin rules 130 The provision of variation margin within two
than the required initial margin amount generally provide that: business of the calculation date may only be
as re-calculated each business day until • Counterparties shall calculate applied to the following: (a) Netting sets comprising
such uncleared swap is terminated or initial margin no later than the business derivative contracts not subject to initial margin
day following one of these events: (a) requirements in accordance with this Regulation,
expires. where the posting counterparty has provided, at or
• Required initial margin amounts Where a new non-centrally cleared OTC before the calculation date of the variation margin,
must be posted and collected by CSEs derivative contract is executed or added an advance amount of eligible collateral calculated
on a gross basis (i.e., amounts to be to the netting set; (b) where an existing in the same manner as that applicable to initial
non-centrally cleared OTC derivative margins in accordance with Article 15, for which
the collecting counterparty has used a margin
119 See RTS, Article 40. contract expires or is removed from the period of risk (MPOR) at least equal to the number
120 The applicant noted that, in a November 23, netting set; (c) where an existing non- of days in between and including the calculation
2016 report to the European Parliament and the centrally cleared OTC derivative date and the collection date; (b) netting sets
Council on areas where further action is necessary comprising contracts subject to initial margin
to ensure that the objectives of EMIR are fulfilled
contract triggers a payment or a delivery
requirements in accordance with this Regulation,
‘‘in a more appropriate, efficient and effective other than the posting and collecting of where the initial margin has been adjusted in one
manner,’’ on the issue of margin model approval, margins; (d) where the initial margin is of the following ways: (i) By increasing the MPOR
the EC stated: calculated in accordance with the referred to in Article 15(2) by the number of days
[W]ith respect to non-cleared transactions, some standardized approach and an existing in between, and including, the calculation date
respondents, notably financial institutions, noted determined in accordance with Article 9(3) and the
the absence of a clear mandate for initial margin contract is reclassified in terms of the collection date determined in accordance with
models to be endorsed by authorities, which could asset category referred to by the RTS as paragraph 1 of this Article; (ii) by increasing the
lead to uncertainty among market participants as to a result of reduced time to maturity; (e) initial margin calculated in accordance with the
whether their calculations are considered by where no calculation has been standardised approach referred to in Article 11
authorities to be fully compliant with regulations. using an appropriate methodology taking into
A mandate for initial margin models to be endorsed performed in the preceding 10 business account a MPOR that is increased by the number
by authorities could promote certainty for market days.124 of days in between, and including, the calculation
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participants and authorities alike. • The posting counterparty shall date determined in accordance with Article 9(3)
See November 23, 2016 Report from the EC to the provide the initial margin within the and the collection date determined in accordance
European Parliament and the Council under Article with paragraph 2 of this Article. For the purposes
85(1) of EMIR on OTC Derivatives, Central of point (a), in case no mechanism for segregation
121 See § 23.153(a).
Counterparties and Trade Repositories, section 4.1.2 is in place between the two counterparties, those
122 See § 23.153(b).
(emphasis included), at http://ec.europa.eu/ counterparties may offset the amounts to be
123 See § 23.153(e)(2)(i). provided.
finance/financial-markets/docs/derivatives/161123-
report_en.pdf. 124 See RTS, Article 9(2). 131 See RTS, Article 12(1).
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![Federal Register / Vol. 82, No. 200 / Wednesday, October 18, 2017 / Rules and Regulations 48413
authorities, as noted above, are margin requirements; the treatment of DEPARTMENT OF HEALTH AND
responsible for supervising FCs as part inter-affiliate derivative transactions; HUMAN SERVICES
of their ongoing prudential regulation the methodologies for calculating the
and supervision of such FCs, will amounts of initial and variation margin; Food and Drug Administration
enforce the RTS, which are directly the process and standards for approving
applicable in the Member States, and models for calculating initial and 21 CFR Part 862
will take all measures necessary to variation margin models; the timing and [Docket No. FDA–2017–N–5160]
ensure that those rules are manner in which initial and variation
implemented. Thus, the Commission margin must be collected and/or paid; Medical Devices; Clinical Chemistry
finds that the EC, through the competent any threshold levels or amounts; risk and Clinical Toxicology Devices;
authorities, has the necessary powers to management controls for the calculation Classification of the Organophosphate
supervise, investigate, and discipline of initial and variation margin; eligible Test System
entities for compliance with its margin collateral for initial and variation
requirements and recognizes the margin; the requirements of custodial AGENCY: Food and Drug Administration,
relevant competent authorities’ ongoing arrangements, including segregation of HHS.
efforts to detect and deter violations of, margin and rehypothecation; margin ACTION: Final order.
and ensure compliance with, the margin documentation requirements; and the
requirements applicable in the EU. cross-border application of the EU’s SUMMARY: The Food and Drug
margin regime. Finally, based on the Administration (FDA or we) is
V. Conclusion classifying the organophosphate test
long history of regulatory cooperation
As detailed above, the Commission between the Commission and Member system into class II (special controls).
has noted several differences between State competent authorities with The special controls that apply to the
the Final Margin Rule and the EU supervisory and enforcement authority device type are identified in this order
margin rules. However, having under the RTS, the Commission finds and will be part of the codified language
considered the scope and objectives of that the EC, through the competent for the organophosphate test system’s
the margin requirements for uncleared authorities, has the necessary powers to classification. We are taking this action
swaps under the laws of the EU,202 supervise, investigate, and discipline because we have determined that
whether such margin requirements entities for compliance with its margin classifying the device into class II
achieve comparable outcomes to the requirements, and recognizes the (special controls) will provide a
Commission’s corresponding margin relevant authorities’ ongoing efforts to reasonable assurance of safety and
requirements,203 and the ability of the detect and deter violations of, and effectiveness of the device. We believe
Member State competent authorities to ensure compliance with, the margin this action will also enhance patients’
supervise and enforce compliance with requirements applicable in the EU. access to beneficial innovative devices,
the margin requirements for non- Accordingly, a CSE that is subject to in part by reducing regulatory burdens.
centrally cleared OTC derivatives under both the Final Margin Rule and the EU’s DATES: This order is effective October
the laws of the EU,204 the Commission margin rules with respect to an 18, 2017. The classification was
has determined that the EU margin rules uncleared swap that is also a non- applicable on August 8, 2013.
are comparable in outcome to the Final centrally cleared OTC derivative may FOR FURTHER INFORMATION CONTACT:
Margin Rule. rely on substituted compliance for all Steven Tjoe, Center for Devices and
As noted above, the Final Margin aspects of the Final Margin Rule and the Radiological Health, Food and Drug
Rule’s regulatory objective is to ensure Cross-Border Margin Rule. Any such Administration, 10903 New Hampshire
the safety and soundness of CSEs in CSE that, in accordance with this Ave., Bldg. 66, Rm. 4550, Silver Spring,
order to offset the greater risk to CSEs comparability determination, complies MD, 20993–0002, 301–796–5866.
and the financial system arising from with the EU margin rules, would be SUPPLEMENTARY INFORMATION:
the use of swaps that are not cleared. deemed to be in compliance with the
The EU margin rules require Final Margin Rule but would remain I. Background
counterparties to apply robust risk- subject to the Commission’s Upon request, FDA has classified the
mitigation techniques to their bilateral examination and enforcement organophosphate test system as class II
relationships to reduce counterparty authority.205 (special controls), which we have
credit risk and to mitigate the potential
Issued in Washington, DC, on October 13, determined will provide a reasonable
systemic risk that could arise. Moreover,
2017, by the Commission. assurance of safety and effectiveness. In
the EU margin rules achieve comparable
Christopher J. Kirkpatrick, addition, we believe this action will
outcomes to the Final Margin Rule in
Secretary of the Commission. enhance patients’ access to beneficial
the following specific areas: The
innovation, in part by reducing
products and entities subject to the EU’s Appendix to Comparability regulatory burdens by placing the
Determination for the European Union: device into a lower device class than the
International/MemorandaofUnderstanding/ Margin Requirements for Uncleared
index.htm. automatic class III assignment.
202 See § 23.160(c)(3)(i).
Swaps for Swap Dealers and Major The automatic assignment of class III
203 See § 23.160(c)(3)(ii). As discussed above, the Swap Participants—Commission Voting occurs by operation of law and without
Commission’s Final Margin Rule is based on the Summary any action by FDA, regardless of the
BCBS/IOSCO Framework; therefore, the level of risk posed by the new device.
Commission expects that the relevant foreign
On this matter, Chairman Giancarlo and
Any device that was not in commercial
ethrower on DSK3G9T082PROD with RULES
margin requirements would conform to such Commissioners Quintenz and Behnam voted
Framework at minimum in order to be deemed in the affirmative. No Commissioner voted in distribution before May 28, 1976, is
comparable in outcome to the Commission’s the negative. automatically classified as, and remains
corresponding margin requirements. [FR Doc. 2017–22616 Filed 10–17–17; 8:45 am] within, class III and requires premarket
204 See § 23.160(c)(3)(iii). See also
§ 23.160(c)(3)(iv) (indicating the Commission would BILLING CODE 6351–01–P approval unless and until FDA takes an
also consider any other relevant facts and action to classify or reclassify the device
circumstances). 205 See § 23.160(c)(4). (see 21 U.S.C. 360c(f)(1)). We refer to
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Document Created: 2017-10-18 01:37:49
Document Modified: 2017-10-18 01:37:49
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Rules and Regulations | |
| Action | Notification of determination. | |
| Dates | This determination was made and issued by the Commission on October 13, 2017. | |
| Contact | Matthew Kulkin, Director, 202-418- 5213, [email protected], or Katherine S. Driscoll, Associate Chief Counsel, 202-418-5544, [email protected], Division of Swap Dealer and Intermediary Oversight, Commodity Futures Trading Commission, Three Lafayette Centre, 1155 21st Street NW., Washington, DC 20581. | |
| FR Citation | 82 FR 48394 |
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