[Federal Register Volume 78, Number 249 (Friday, December 27, 2013)]
[Notices]
[Pages 78839-78852]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-30979]


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COMMODITY FUTURES TRADING COMMISSION


Comparability Determination for Canada: Certain Entity-Level 
Requirements

AGENCY: Commodity Futures Trading Commission.

ACTION: Notice of Comparability Determination for Certain Requirements 
under the Laws of Canada.

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SUMMARY: The following is the analysis and determination of the 
Commodity Futures Trading Commission (``Commission'') regarding certain 
parts of a joint request by the Canadian Bankers Association (``CBA''), 
five individual Canadian banks provisionally-registered with the 
Commodity Futures Trading Commission (``Commission'') as swap dealers 
(``SDs''), and the Office of the Superintendent of Financial 
Institutions (``OSFI'') that the Commission determine that certain laws 
and regulations applicable in Canada provide a sufficient basis for an 
affirmative finding of comparability with respect to the following 
regulatory obligations applicable to SDs and major swap participants 
(``MSPs'') registered with the Commission: (i) Chief compliance 
officer; (ii) risk management; and (iii) swap data recordkeeping 
(collectively, the ``Internal Business Conduct Requirements'').

DATES: Effective Date: This determination will become effective 
immediately upon publication in the Federal Register.

FOR FURTHER INFORMATION CONTACT: Gary Barnett, Director, 202-418-5977, 
[email protected], Frank Fisanich, Chief Counsel, 202-418-5949, 
[email protected], and Andy Chapin, Associate Director, 202-418-5465, 
[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

    On July 26, 2013, the Commission published in the Federal Register 
its ``Interpretive Guidance and Policy Statement Regarding Compliance 
with Certain Swap Regulations'' (the ``Guidance'').\1\ In the Guidance, 
the Commission set forth its interpretation of the manner in which it 
believes that section 2(i) of the Commodity Exchange Act (``CEA'') 
applies Title VII's swap provisions to activities outside the U.S. and 
informed the public of some of the policies that it expects to follow, 
generally speaking, in applying Title VII and certain Commission 
regulations in contexts covered by section 2(i). Among other matters, 
the Guidance generally described the policy and procedural framework 
under which the Commission would consider a substituted compliance 
program with respect to Commission regulations applicable to entities 
located outside the U.S. Specifically, the Commission addressed a 
recognition program where compliance with a comparable regulatory 
requirement of a foreign jurisdiction would serve as a reasonable 
substitute for compliance with the attendant requirements of the CEA 
and the Commission's regulations promulgated thereunder.
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    \1\ 78 FR 45292 (July 26, 2013). The Commission originally 
published proposed and further proposed guidance on July 12, 2012 
and January 7, 2013, respectively. See Cross-Border Application of 
Certain Swaps Provisions of the Commodity Exchange Act, 77 FR 41214 
(July 12, 2012) and Further Proposed Guidance Regarding Compliance 
with Certain Swap Regulations, 78 FR 909 (Jan. 7, 2013).
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    In addition to the Guidance, on July 22, 2013, the Commission 
issued the Exemptive Order Regarding Compliance with Certain Swap 
Regulations (the ``Exemptive Order'').\2\ Among other things, the 
Exemptive Order provided time for the Commission to consider 
substituted compliance with respect to six jurisdictions where non-U.S. 
SDs are currently organized. In this regard, the Exemptive Order 
generally provided non-U.S. SDs and MSPs in the six jurisdictions with 
conditional relief from certain requirements of Commission regulations 
(those referred to as ``Entity-Level Requirements'' in the Guidance) 
until the earlier of December 21, 2013, or 30 days following the 
issuance of a substituted compliance determination.\3\
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    \2\ 78 FR 43785 (July 22, 2013).
    \3\ The Entity-Level Requirements under the Exemptive Order 
consist of 17 CFR 1.31, 3.3, 23.201, 23.203, 23.600, 23.601, 23.602, 
23.603, 23.605, 23.606, 23.608, 23.609, and parts 45 and 46 of the 
Commission's regulations.
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    On May 13, 2013, the CBA, five individual Canadian banks 
provisionally registered with the Commission as SDs, and OSFI 
(collectively hereinafter, the ``applicant'') submitted a request that 
the Commission determine that laws and regulations applicable in Canada 
provide a sufficient basis for an affirmative finding of comparability 
with respect to certain Entity-Level Requirements, including the 
Internal Business Conduct Requirements.\4\ The applicants provided 
Commission staff with a supplemental submission from the Ontario 
Securities Commission (``OSC'') dated June 7, 2013. The following is 
the Commission's analysis and determination regarding the Internal 
Business Conduct Requirements, as detailed below.\5\
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    \4\ For purposes of this notice, the Internal Business Conduct 
Requirements consist of 17 CFR 3.3, 23.201, 23.203, 23.600, 23.601, 
23.602, 23.603, 23.605, and 23.606.
    \5\ This notice does not address swap data repository reporting 
(``SDR Reporting''). The Commission may provide a comparability 
determination with respect to the SDR Reporting requirement in a 
separate notice.
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II. Background

    On July 21, 2010, President Obama signed the Dodd-Frank Wall Street 
Reform and Consumer Protection Act \6\ (``Dodd-Frank Act'' or ``Dodd-
Frank''), which, in Title VII, established a new regulatory framework 
for swaps.
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    \6\ Public Law 111-203, 124 Stat. 1376 (2010).
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    Section 722(d) of the Dodd-Frank Act amended the CEA by adding 
section 2(i), which provides that the swap provisions of the CEA 
(including any CEA rules or regulations) apply to cross-border 
activities when certain conditions are met, namely, when such 
activities have a ``direct and significant connection with activities 
in, or effect on, commerce of the United States'' or when they 
contravene Commission rules or regulations as are necessary or 
appropriate to prevent evasion of the swap provisions of the CEA 
enacted under Title VII of the Dodd-Frank Act.\7\ In the three years 
since its enactment, the Commission has finalized 68 rules and orders 
to implement Title VII of the Dodd-Frank Act. The finalized rules 
include those promulgated under section 4s of the CEA, which address 
registration of SDs and MSPs and other substantive requirements 
applicable to SDs and MSPs. With few exceptions, the delayed compliance 
dates for the Commission's regulations implementing such section 4s 
requirements applicable to SDs and MSPs have passed and new SDs and 
MSPs are now required to be in full compliance with such regulations 
upon registration with the

[[Page 78840]]

Commission.\8\ Notably, the requirements under Title VII of the Dodd-
Frank Act related to SDs and MSPs by their terms apply to all 
registered SDs and MSPs, irrespective of where they are located, albeit 
subject to the limitations of CEA section 2(i).
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    \7\ 7 U.S.C. 2(i).
    \8\ The compliance dates are summarized on the Compliance Dates 
page of the Commission's Web site. (http://www.cftc.gov/LawRegulation/DoddFrankAct/ComplianceDates/index.htm.)
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    To provide guidance as to the Commission's views regarding the 
scope of the cross-border application of Title VII of the Dodd-Frank 
Act, the Commission set forth in the Guidance its interpretation of the 
manner in which it believes that Title VII's swap provisions apply to 
activities outside the U.S. pursuant to section 2(i) of the CEA. Among 
other matters, the Guidance generally described the policy and 
procedural framework under which the Commission would consider a 
substituted compliance program with respect to Commission regulations 
applicable to entities located outside the U.S. Specifically, the 
Commission addressed a recognition program where compliance with a 
comparable regulatory requirement of a foreign jurisdiction would serve 
as a reasonable substitute for compliance with the attendant 
requirements of the CEA and the Commission's regulations. With respect 
to the standards forming the basis for any determination of 
comparability (``comparability determination'' or ``comparability 
finding''), the Commission stated:

    In evaluating whether a particular category of foreign 
regulatory requirement(s) is comparable and comprehensive to the 
applicable requirement(s) under the CEA and Commission regulations, 
the Commission will take into consideration all relevant factors, 
including but not limited to, the comprehensiveness of those 
requirement(s), the scope and objectives of the relevant regulatory 
requirement(s), the comprehensiveness of the foreign regulator's 
supervisory compliance program, as well as the home jurisdiction's 
authority to support and enforce its oversight of the registrant. In 
this context, comparable does not necessarily mean identical. 
Rather, the Commission would evaluate whether the home 
jurisdiction's regulatory requirement is comparable to and as 
comprehensive as the corresponding U.S. regulatory 
requirement(s).\9\
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    \9\ 78 FR 45342-45.

    Upon a comparability finding, consistent with CEA section 2(i) and 
comity principles, the Commission's policy generally is that eligible 
entities may comply with a substituted compliance regime, subject to 
any conditions the Commission places on its finding, and subject to the 
Commission's retention of its examination authority and its enforcement 
authority.\10\
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    \10\ See the Guidance, 78 FR 45342-44.
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    In this regard, the Commission notes that a comparability 
determination cannot be premised on whether an SD or MSP must disclose 
comprehensive information to its regulator in its home jurisdiction, 
but rather on whether information relevant to the Commission's 
oversight of an SD or MSP would be directly available to the Commission 
and any U.S. prudential regulator of the SD or MSP.\11\ The 
Commission's direct access to the books and records required to be 
maintained by an SD or MSP registered with the Commission is a core 
requirement of the CEA \12\ and the Commission's regulations,\13\ and 
is a condition to registration.\14\
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    \11\ Under Sec. Sec.  23.203 and 23.606, all records required by 
the CEA and the Commission's regulations to be maintained by a 
registered SD or MSP shall be maintained in accordance with 
Commission regulation 1.31 and shall be open for inspection by 
representatives of the Commission, the United States Department of 
Justice, or any applicable U.S. prudential regulator.
    In its Final Exemptive Order Regarding Compliance with Certain 
Swap Regulations, 78 FR 858 (Jan. 7, 2013), the Commission noted 
that an applicant for registration as an SD or MSP must file a Form 
7-R with the National Futures Association and that Form 7-R was 
being modified at that time to address existing blocking, privacy, 
or secrecy laws of foreign jurisdictions that applied to the books 
and records of SDs and MSPs acting in those jurisdictions. See id. 
at 871-72 n. 107. The modifications to Form 7-R were a temporary 
measure intended to allow SDs and MSPs to apply for registration in 
a timely manner in recognition of the existence of the blocking, 
privacy, and secrecy laws. In the Guidance, the Commission clarified 
that the change to Form 7-R impacts the registration application 
only and does not modify the Commission's authority under the CEA 
and its regulations to access records held by registered SDs and 
MSPs. Commission access to a registrant's books and records is a 
fundamental regulatory tool necessary to properly monitor and 
examine each registrant's compliance with the CEA and the 
regulations adopted pursuant thereto. The Commission has maintained 
an ongoing dialogue on a bilateral and multilateral basis with 
foreign regulators and with registrants to address books and records 
access issues and may consider appropriate measures where requested 
to do so.
    \12\ See e.g., sections 4s(f)(1)(C), 4s(j)(3) and (4) of the 
CEA.
    \13\ See e.g., Sec. Sec.  23.203(b) and 23.606.
    \14\ See supra note 10.
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III. Regulation of SDs and MSPs in Canada

    On May 13, 2013, the applicant submitted a request that the 
Commission assess the comparability of Canadian laws and regulations 
with the requirements of the CEA and the Commission's regulations 
promulgated thereunder. OSC provided a supplement to the submission on 
June 7, 2013. On November 8, 2013, OSFI further supplemented the 
application with corrections and additional materials.
    All of the currently registered Canadian SDs are banks regulated 
under the Canadian Bank Act (the ``Bank Act''),\15\ relevant 
regulations thereunder, and guidelines, advisories, and interpretations 
provided by OSFI. As the governing prudential regulator in Canada, OSFI 
supervises all Canadian banks on a consolidated basis, including those 
provisionally registered with the Commission as SDs (the ``Canadian 
Bank SDs''). To implement its ``Supervisory Framework,'' OSFI has 
published guidelines, advisories, and interpretations which OSFI 
expects each bank to follow. Each of the five Canadian Bank SDs also 
has been designated as Domestic Systemically Important Banks 
(``DSIBs'') due to the potential impact that failure could have on the 
domestic economy based on their size, interconnectedness, 
substitutability, and complexity. As DSIBs, these banks are expected to 
have advanced practices in terms of the design and operation of 
oversight functions and controls, and are subject to continued 
supervisory intensity, enhanced disclosure requirements, and a capital 
surcharge.\16\
    Canada's provincial securities administrators, coordinated by the 
Derivatives Committee of the Canadian Securities Administrators 
(``CSA''), are responsible for regulating the capital markets. 
Harmonized policy recommendations are made at the CSA level, while 
regulations are made at the provincial level. Currently, the CSA has 
issued a Consultation Paper 91-407 on ``Derivatives Registration'' 
(comment period closed June 17, 2013).
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    \15\ Consolidated Acts of Canada, S.C. 1991, c. 46.
    \16\ Because the applicant's request and the Commissions 
determinations herein are based on the comparability of Canadian 
requirements applicable to banks, an SD or MSP that is not a bank, 
or is otherwise not subject to the requirements applicable to banks 
upon which the Commission bases its determinations, may not be able 
to rely on the Commission's comparability determinations herein.
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IV. Comparable and Comprehensiveness Standard

    The Commission's comparability analysis will be based on a 
comparison of specific foreign requirements against the specific 
related CEA provisions and Commission regulations as categorized and 
described in the Guidance. As explained in the Guidance, within the 
framework of CEA section 2(i) and principles of international comity, 
the Commission may make a comparability determination on a requirement-
by-requirement basis, rather than on the

[[Page 78841]]

basis of the foreign regime as a whole.\17\ In making its comparability 
determinations, the Commission may include conditions that take into 
account timing and other issues related to coordinating the 
implementation of reform efforts across jurisdictions.\18\
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    \17\ 78 FR 45343.
    \18\ 78 FR 45343.
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    In evaluating whether a particular category of foreign regulatory 
requirement(s) is comparable and comprehensive to the corollary 
requirement(s) under the CEA and Commission regulations, the Commission 
will take into consideration all relevant factors, including, but not 
limited to:
     The comprehensiveness of those requirement(s),
     The scope and objectives of the relevant regulatory 
requirement(s),
     The comprehensiveness of the foreign regulator's 
supervisory compliance program, and
     The home jurisdiction's authority to support and enforce 
its oversight of the registrant.\19\
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    \19\ 78 FR 45343. The Commission's substituted compliance 
program would generally be available for SDR Reporting, as outlined 
in the Guidance, only if the Commission has direct access to all of 
the data elements that are reported to a foreign trade repository 
pursuant to the substituted compliance program. Thus, direct access 
to swap data is a threshold matter to be addressed in a 
comparability evaluation for SDR Reporting. Moreover, the Commission 
explains in the Guidance that, due to its technical nature, a 
comparability evaluation for SDR Reporting ``will generally entail a 
detailed comparison and technical analysis.'' A more particularized 
analysis will generally be necessary to determine whether data 
stored in a foreign trade repository provides for effective 
Commission use, in furtherance of the regulatory purposes of the 
Dodd-Frank Act. See 78 FR 45345.
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    In making a comparability determination, the Commission takes an 
``outcome-based'' approach. An ``outcome-based'' approach means that 
when evaluating whether a foreign jurisdiction's regulatory 
requirements are comparable to, and as comprehensive as, the corollary 
areas of the CEA and Commission regulations, the Commission ultimately 
focuses on regulatory outcomes (i.e., the home jurisdiction's 
requirements do not have to be identical).\20\ This approach recognizes 
that foreign regulatory systems differ and their approaches vary and 
may differ from how the Commission chose to address an issue, but that 
the foreign jurisdiction's regulatory requirements nonetheless achieve 
the regulatory outcome sought to be achieved by a certain provision of 
the CEA or Commission regulation.
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    \20\ 78 FR 45343.
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    In doing its comparability analysis the Commission may determine 
that no comparability determination can be made \21\ and that the non-
U.S. SD or non-U.S. MSP, U.S. bank that is an SD or MSP with respect to 
its foreign branches, or non-registrant, to the extent applicable under 
the Guidance, may be required to comply with the CEA and Commission 
regulations.
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    \21\ A finding of comparability may not be possible for a number 
of reasons, including the fact that the foreign jurisdiction has not 
yet implemented or finalized particular requirements.
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    The starting point in the Commission's analysis is a consideration 
of the regulatory objectives of the foreign jurisdiction's regulation 
of swaps and swap market participants. As stated in the Guidance, 
jurisdictions may not have swap specific regulations in some areas, and 
instead have regulatory or supervisory regimes that achieve comparable 
and comprehensive regulation to the Dodd-Frank Act requirements, but on 
a more general, entity-wide, or prudential, basis.\22\ In addition, 
portions of a foreign regulatory regime may have similar regulatory 
objectives, but the means by which these objectives are achieved with 
respect to swaps market activities may not be clearly defined, or may 
not expressly include specific regulatory elements that the Commission 
concludes are critical to achieving the regulatory objectives or 
outcomes required under the CEA and the Commission's regulations. In 
these circumstances, the Commission will work with the regulators and 
registrants in these jurisdictions to consider alternative approaches 
that may result in a determination that substituted compliance 
applies.\23\
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    \22\ 78 FR 45343.
    \23\ As explained in the Guidance, such ``approaches used will 
vary depending on the circumstances relevant to each jurisdiction. 
One example would include coordinating with the foreign regulators 
in developing appropriate regulatory changes or new regulations, 
particularly where changes or new regulations already are being 
considered or proposed by the foreign regulators or legislative 
bodies. As another example, the Commission may, after consultation 
with the appropriate regulators and market participants, include in 
its substituted compliance determination a description of the means 
by which certain swaps market participants can achieve substituted 
compliance within the construct of the foreign regulatory regime. 
The identification of the means by which substituted compliance is 
achieved would be designed to address the regulatory objectives and 
outcomes of the relevant Dodd-Frank Act requirements in a manner 
that does not conflict with a foreign regulatory regime and reduces 
the likelihood of inconsistent regulatory obligations. For example, 
the Commission may specify that [SDs] and MSPs in the jurisdiction 
undertake certain recordkeeping and documentation for swap 
activities that otherwise is only addressed by the foreign 
regulatory regime with respect to financial activities generally. In 
addition, the substituted compliance determination may include 
provisions for summary compliance and risk reporting to the 
Commission to allow the Commission to monitor whether the regulatory 
outcomes are being achieved. By using these approaches, in the 
interest of comity, the Commission would seek to achieve its 
regulatory objectives with respect to the Commission's registrants 
that are operating in foreign jurisdictions in a manner that works 
in harmony with the regulatory interests of those jurisdictions.'' 
78 FR 45343-44.
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    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 in full force and effect, 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 \24\ of SDs and MSPs \25\ in the 
relevant jurisdictions.\26\ Further, as stated in the Guidance, the 
Commission expects 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.\27\
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    \24\ ``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 Part 23 (17 CFR Part 23) are limited 
in scope to the swaps activities of SDs and MSPs.
    \25\ No SD or MSP 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 SD or MSP that seeks to 
rely on a comparability determination is responsible for determining 
whether it is subject to the laws and regulations found comparable. 
Currently there are no MSPs organized outside the U.S. and the 
Commission therefore cautions any non-financial entity organized 
outside the U.S. and applying for registration as an MSP to 
carefully consider whether the laws and regulations determined to be 
comparable herein are applicable to such entity.
    \26\ 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.
    \27\ 78 FR 45345.
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    The Guidance provided a detailed discussion of the Commission's 
policy regarding the availability of substituted

[[Page 78842]]

compliance \28\ for the Internal Business Conduct Requirements.\29\
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    \28\ See 78 FR 45348-50. The Commission notes that registrants 
and other market participants are responsible for determining 
whether substituted compliance is available pursuant to the Guidance 
based on the comparability determination contained herein (including 
any conditions or exceptions), and its particular status and 
circumstances.
    \29\ This notice does not address Sec.  23.608 (Restrictions on 
counterparty clearing relationships). The Commission declines to 
take up the request for a comparability determination with respect 
to this regulation due to the Commission's view that there are not 
laws or regulations applicable in Canada to compare with the 
prohibitions and requirements of Sec.  23.608. The Commission may 
provide a comparability determination with respect to this 
regulation at a later date in consequence of further developments in 
the law and regulations applicable in Canada.
    This notice also does not address capital adequacy because the 
Commission has not yet finalized rules for SDs and MSPs in this 
area, nor SDR Reporting. The Commission may provide a comparability 
determination with respect to these requirements at a later date or 
in a separate notice.
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V. Supervisory Arrangement

    In the Guidance, the Commission stated that, in connection with a 
determination that substituted compliance is appropriate, it would 
expect to enter into an appropriate memorandum of understanding 
(``MOU'') or similar arrangement \30\ with the relevant foreign 
regulator(s). Although existing arrangements would indicate a foreign 
regulator's ability to cooperate and share information, ``going 
forward, the Commission and relevant foreign supervisor(s) would need 
to establish supervisory MOUs or other arrangements that provide for 
information sharing and cooperation in the context of supervising [SDs] 
and MSPs.'' \31\
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    \30\ An MOU is one type of arrangement between or among 
regulators. Supervisory arrangements could include, as appropriate, 
cooperative arrangements that are memorialized and executed as 
addenda to existing MOUs or, for example, as independent bilateral 
arrangements, statements of intent, declarations, or letters.
    \31\ 78 FR 45344.
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    The Commission is in the process of developing its registration and 
supervision regime for provisionally-registered SDs and MSPs. This new 
initiative includes setting forth supervisory arrangements with 
authorities that have joint jurisdiction over SDs and MSPs that are 
registered with the Commission and subject to U.S. law. Given the 
developing nature of the Commission's regime and the fact that the 
Commission has not negotiated prior supervisory arrangements with 
certain authorities, the negotiation of supervisory arrangements 
presents a unique opportunity to develop close working relationships 
between and among authorities, as well as highlight any potential 
issues related to cooperation and information sharing.
    Accordingly, the Commission is negotiating such a supervisory 
arrangement with each applicable foreign regulator of an SD or MSP. The 
Commission expects that the arrangement will establish expectations for 
ongoing cooperation, address direct access to information,\32\ provide 
for notification upon the occurrence of specified events, memorialize 
understandings related to on-site visits,\33\ and include protections 
related to the use and confidentiality of non-public information shared 
pursuant to the arrangement.
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    \32\ Section 4s(j)(3) and (4) of the CEA and Commission 
regulation 23.606 require a registered SD or MSP to make all records 
required to be maintained in accordance with Commission regulation 
1.31 available promptly upon request to, among others, 
representatives of the Commission. See also 7 U.S.C. 6s(f); 17 CFR 
23.203. In the Guidance, the Commission states that it ``reserves 
this right to access records held by registered [SDs] and MSPs, 
including those that are non-U.S. persons who may comply with the 
Dodd-Frank recordkeeping requirement through substituted 
compliance.'' 78 FR 45345 n. 472; see also id. at 45342 n. 461 
(affirming the Commission's authority under the CEA and its 
regulations to access books and records held by registered SDs and 
MSPs as ``a fundamental regulatory tool necessary to properly 
monitor and examine each registrant's compliance with the CEA and 
the regulations adopted pursuant thereto'').
    \33\ The Commission retains its examination authority, both 
during the application process as well as upon and after 
registration of an SD or MSP. See 78 FR 45342 (stating Commission 
policy that ``eligible entities may comply with a substituted 
compliance regime under certain circumstances, subject, however, to 
the Commission's retention of its examination authority'') and 45344 
n. 471 (stating that the ``Commission may, as it deems appropriate 
and necessary, conduct an on-site examination of the applicant'').
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    These arrangements will establish a roadmap for how authorities 
will consult, cooperate, and share information. As with any such 
arrangement, however, nothing in these arrangements will supersede 
domestic laws or resolve potential conflicts of law, such as the 
application of domestic secrecy or blocking laws to regulated entities.

VI. Comparability Determination and Analysis

    The following section describes the requirements imposed by 
specific sections of the CEA and the Commission's regulations for the 
Internal Business Conduct Requirements that are the subject of this 
comparability determination, and the Commission's regulatory objectives 
with respect to such requirements. Immediately following a description 
of the requirement(s) and regulatory objective(s) of the specific 
Internal Business Conduct Requirements that the applicant submitted for 
a comparability determination, the Commission provides a description of 
the foreign jurisdiction's comparable laws, regulations, or rules and 
whether such laws, regulations, or rules meet the applicable regulatory 
objective.
    The Commission's determinations in this regard and the discussion 
in this section are intended to inform the public of the Commission's 
views regarding whether the foreign jurisdiction's laws, regulations, 
or rules may be comparable and comprehensive as those requirements in 
the Dodd-Frank Act (and Commission regulations promulgated thereunder) 
and therefore, may form the basis of substituted compliance. In turn, 
the public (in the foreign jurisdiction, in the United States, and 
elsewhere) retains its ability to present facts and circumstances that 
would inform the determinations set forth in this notice.
    As was stated in the Guidance, the Commission recognizes the 
complex and dynamic nature of the global swap market and the need to 
take an adaptable approach to cross-border issues, particularly as it 
continues to work closely with foreign regulators to address potential 
conflicts with respect to each country's respective regulatory regime. 
In this regard, the Commission may review, modify, or expand the 
determinations herein in light of comments received and future 
developments.

A. Chief Compliance Officer (Sec.  3.3).

    Commission Requirement: Implementing section 4s(k) of the CEA, 
Commission regulation 3.3 generally sets forth the following 
requirements for SDs and MSPs:
     An SD or MSP must designate an individual as Chief 
Compliance Officer (``CCO'');
     The CCO must have the responsibility and authority to 
develop the regulatory compliance policies and procedures of the SD or 
MSP;
     The CCO must report to the board of directors or the 
senior officer of the SD or MSP;
     Only the board of directors or a senior officer may remove 
the CCO;
     The CCO and the board of directors must meet at least once 
per year;
     The CCO must have the background and skills appropriate 
for the responsibilities of the position;
     The CCO must not be subject to disqualification from 
registration under sections 8a(2) or (3) of the CEA;
     Each SD and MSP must include a designation of a CCO in its 
registration application;

[[Page 78843]]

     The CCO must administer the regulatory compliance policies 
of the SD or MSP;
     The CCO must take reasonable steps to ensure compliance 
with the CEA and Commission regulations, and resolve conflicts of 
interest;
     The CCO must establish procedures for detecting and 
remediating non-compliance issues;
     The CCO must annually prepare and sign an ``annual 
compliance report'' containing: (i) A description of policies and 
procedures reasonably designed to ensure compliance; (ii) an assessment 
of the effectiveness of such policies and procedures; (iii) a 
description of material non-compliance issues and the action taken; 
(iv) recommendations of improvements in compliance policies; and (v) a 
certification by the CCO or CEO that, to the best of such officer's 
knowledge and belief, the annual report is accurate and complete under 
penalty of law; and
     The annual compliance report must be furnished to the CFTC 
within 90 days after the end of the fiscal year of the SD or MSP, 
simultaneously with its annual financial condition report.
    Regulatory Objective: The Commission believes that compliance by 
SDs and MSPs with the CEA and the Commission's rules greatly 
contributes to the protection of customers, orderly and fair markets, 
and the stability and integrity of the market intermediaries registered 
with the Commission. The Commission expects SDs and MSPs to strictly 
comply with the CEA and the Commission's rules and to devote sufficient 
resources to ensuring such compliance. Thus, through its CCO rule, the 
Commission seeks to ensure firms have designated a qualified individual 
as CCO that reports directly to the board of directors or the senior 
officer of the firm and that has the independence, responsibility, and 
authority to develop and administer compliance policies and procedures 
reasonably designed to ensure compliance with the CEA and Commission 
regulations, resolve conflicts of interest, remediate noncompliance 
issues, and report annually to the Commission and the board or senior 
officer on compliance of the firm.
    Comparable Canadian Law and Regulations: The applicant has 
represented to the Commission that the following provisions of law and 
regulations applicable in Canada are in full force and effect in 
Canada, and comparable to and as comprehensive as section 4s(k) of the 
CEA and Commission regulation 3.3.
    OSFI's Legislative Compliance Management Guideline E-13 (``LCM 
Guideline'') requires Canadian banks to establish an enterprise-wide 
framework of regulatory risk management controls to ensure that 
regulatory compliance risks are managed effectively. The required LCM 
framework must meet the requirements of the LCM Guideline, which sets 
out OSFI's expectations. The Canadian Bank SDs are required to 
demonstrate that they satisfy those expectations in particular 
circumstances. Pursuant to the LCM Guideline:
     The compliance oversight function should be designated to 
a member of senior management as the bank's CCO;
     Such CCO should have sufficient stature, authority, 
resources, and access to achieve compliance with applicable law;
     Such CCO should have appropriate skills and knowledge to 
effectively fulfill the requirements of the function;
     The CCO should approve the content and frequency of 
reports and that such reports should be sufficient to enable the CCO, 
senior management, and the bank's board to discharge their compliance 
responsibilities;
     OSFI expects that each bank's LCM framework will include 
identification, assessment, communication, and maintenance of 
applicable regulatory requirements, compliance procedures, monitoring 
procedures, and reporting procedures;
     OSFI expects the CCO to be responsible for the LCM 
framework and to report issues directly to the board, including any 
material compliance issues and their remediation; and
     Normal course reports to the board should be made no less 
than annually, and contain discussion of material weaknesses, non-
compliance issues, and remedial action plans.
    In addition, the OSFI Corporate Governance Guideline of Federally 
Regulated Financial Institutions (``OSFI Corporate Governance 
Guideline'') states that the bank's board of directors should be 
responsible for the selection, performance, management, compensation, 
and evaluation of a CCO. Pursuant to the OSFI Supervisory Framework, 
OSFI monitors banks' management of compliance risk and reports on 
banks' compliance with the Bank Act annually to the Canadian Minister 
of Finance.
    Commission Determination: The Commission finds that the OSFI 
standards specified above are generally identical in intent to Sec.  
3.3 by seeking to ensure firms have designated a qualified individual 
as the compliance officer that reports directly to a sufficiently 
senior function of the firm and that has the independence, 
responsibility, and authority to develop and administer compliance 
policies and procedures reasonably designed to ensure compliance with 
the CEA and Commission regulations, resolve conflicts of interest, 
remediate noncompliance issues, and report annually on compliance of 
the firm.
    Based on the foregoing and the representations of the applicant, 
the Commission hereby determines that the CCO requirements of the OSFI 
standards, specified above, are comparable to and as comprehensive as 
Sec.  3.3, with the exception of Sec.  3.3(f) concerning certifying and 
furnishing an annual compliance report to the Commission.\34\
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    \34\ Because the Commission has not determined that the 
requirements of the OSFI standards are comparable to and as 
comprehensive as Sec.  3.3(f), any SD or MSP to which both Sec.  3.3 
and the OSFI standards specified above are applicable would 
generally be deemed to be in compliance with Sec.  3.3 if that SD or 
MSP complies with the OSFI standards specified above, subject to 
certifying and furnishing the Commission with the annual report 
required under the OSFI standards specified above in accordance with 
Sec.  3.3(f). The Commission notes that it generally expects 
registrants to submit required reports to the Commission in the 
English language.
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    Notwithstanding that the Commission has not determined that the 
requirements of the OSFI standards are comparable to and as 
comprehensive as Sec.  3.3(f), any SD or MSP to which both Sec.  3.3 
and the OSFI standards specified above are applicable would generally 
be deemed to be in compliance with Sec.  3.3(f) if that SD or MSP 
complies with the OSFI standards specified above, subject to certifying 
and furnishing the Commission with the annual report required under the 
OSFI standards specified above in accordance with Sec.  3.3(f). The 
Commission notes that it generally expects registrants to submit 
required reports to the Commission in the English language.

B. Risk Management Duties (Sec. Sec.  23.600--23.609)

    Section 4s(j) of the CEA requires each SD and MSP to establish 
internal policies and procedures designed to, among other things, 
address risk management, monitor compliance with position limits, 
prevent conflicts of interest, and promote diligent supervision, as 
well as maintain business continuity and disaster recovery 
programs.\35\ The Commission adopted regulations 23.600, 23.601, 
23.602, 23.603, 23.605, and 23.606 to implement the statute.\36\ The

[[Page 78844]]

Commission also adopted regulation 23.609, which requires certain risk 
management procedures for SDs or MSPs that are clearing members of a 
derivatives clearing organization (``DCO'').\37\ Collectively, these 
requirements help to establish a robust and comprehensive internal risk 
management program for SDs and MSPs with respect to their swaps 
activities,\38\ which is critical to effective systemic risk management 
for the overall swaps market. In making its comparability determination 
with regard to these risk management duties, the Commission will 
consider each regulation individually.\39\
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    \35\ 7 U.S.C. 6s(j).
    \36\ See Final Swap Dealer and MSP Recordkeeping Rule, 77 FR 
20128 (April 3, 2012) (relating to risk management program, 
monitoring of position limits, business continuity and disaster 
recovery, conflicts of interest policies and procedures, and general 
information availability, respectively).
    \37\ See Customer Documentation Rule, 77 FR 21278. Also, SDs 
must comply with Commission regulation 23.608, which prohibits SDs 
providing clearing services to customers from entering into 
agreements that would: (i) Disclose the identity of a customer's 
original executing counterparty; (ii) limit the number of 
counterparties a customer may trade with; (iii) impose counterparty-
based position limits; (iv) impair a customer's access to execution 
of a trade on terms that have a reasonable relationship to the best 
terms available; or (v) prevent compliance with specified time 
frames for acceptance of trades into clearing.
    \38\ ``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 Part 23 (17 CFR Part 23) are limited 
in scope to the swaps activities of SDs and MSPs.
    \39\ As stated above, this notice does not address Sec.  23.608 
(Restrictions on counterparty clearing relationships). The 
Commission declines to take up the request for a comparability 
determination with respect to this regulation due to the 
Commission's view that there are not laws or regulations applicable 
in Canada to compare with the prohibitions and requirements of Sec.  
23.608. The Commission may provide a comparability determination 
with respect to this regulation at a later date in consequence of 
further developments in the law and regulations applicable in 
Canada.
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1. Risk Management Program for SDs and MSPs (Sec.  23.600)
    Commission Requirement: Implementing section 4s(j)(2) of the CEA, 
Commission regulation 23.600 generally requires that:
     Each SD or MSP must establish and enforce a risk 
management program consisting of a system of written risk management 
policies and procedures designed to monitor and manage the risks 
associated with the swap activities of the firm, including without 
limitation, market, credit, liquidity, foreign currency, legal, 
operational, and settlement risks, and furnish a copy of such policies 
and procedures to the CFTC upon application for registration and upon 
request;
     The SD or MSP must establish a risk management unit 
independent from the business trading unit;
     The risk management policies and procedures of the SD or 
MSP must be approved by the firm's governing body;
     Risk tolerance limits and exceptions therefrom must be 
reviewed and approved quarterly by senior management and annually by 
the governing body;
     The risk management program must have a system for 
detecting breaches of risk tolerance limits and alerting supervisors 
and senior management, as appropriate;
     The risk management program must account for risks posed 
by affiliates and be integrated at the consolidated entity level;
     The risk management unit must provide senior management 
and the governing body with quarterly risk exposure reports and upon 
detection of any material change in the risk exposure of the SD or MSP;
     Risk exposure reports must be furnished to the CFTC within 
five business days following provision to senior management;
     The risk management program must have a new product policy 
for assessing the risks of new products prior to engaging in such 
transactions;
     The risk management program must have policies and 
procedures providing for trading limits, monitoring of trading, 
processing of trades, and separation of personnel in the trading unit 
from personnel in the risk management unit; and
     The risk management program must be reviewed and tested at 
least annually and upon any material change in the business of the SD 
or MSP.
    Regulatory Objective: Through the required system of risk 
management, the Commission seeks to ensure that firms are adequately 
managing the risks of their swaps activities to prevent failure of the 
SD or MSP, which could result in losses to counterparties doing 
business with the SD or MSP, and systemic risk more generally. To this 
end, the Commission believes the risk management program of an SD or 
MSP must contain at least the following critical elements:
     Identification of risk categories;
     Establishment of risk tolerance limits for each category 
of risk and approval of such limits by senior management and the 
governing body;
     An independent risk management unit to administer a risk 
management program; and
     Periodic oversight of risk exposures by senior management 
and the governing body.
    Comparable Canadian Law and Regulations: The applicant has 
represented to the Commission that the following provisions of law and 
regulations applicable in Canada are in full force and effect in 
Canada, and are comparable to and as comprehensive as section 4s(j)(2) 
of the CEA and Commission regulation Sec.  23.600.
    The OSFI Corporate Governance Guideline requires that each bank 
establish a risk appetite framework (``RAF'') that:
     Guides the amount of risk the bank is willing to accept in 
pursuit of its strategic and business objectives.
     Sets basic goals, benchmarks, parameters, and limits, and 
should consider all applicable types of risks.
     Contains all elements required by an annex to the 
Corporate Governance Guideline, including a risk appetite statement, 
specific risk tolerance limits, and processes for implementation of the 
RAF.
    Further, the OSFI Corporate Governance Guideline states that DSIBs 
should establish a dedicated risk committee to oversee risk management 
on an enterprise-wide basis, and that the oversight of the risk 
management activities of the bank are to be independent from 
operational management, adequately resourced, and have appropriate 
status and visibility.
    The OSFI Derivatives Best Practice Guideline states that each bank 
should ensure that each derivative product traded is subject to a 
product authorization signed off by senior management, and sets forth 
OSFI's expectations with respect to having documented policies and 
procedures for risk management, creating risk tolerance limits, and 
measuring, reporting, managing, and controlling the risks associated 
with the derivatives business, including market, currency, interest 
rate, equity price, commodity price, credit, settlement, liquidity, 
operational, and legal risks.
    Finally, OSFI represents that its oversight pursuant to the 
Supervisory Framework will assess the extent to which the risk 
management function integrates policies, practices, and limits with 
day-to-day business activities and with the bank's strategic, capital, 
and liquidity management policies. Under the Supervisory Framework, 
OSFI also will assess whether the risk management function effectively 
monitors risk positions against approved limits and ensures that 
material breaches are addressed on a timely basis. OSFI represents that 
it will look at various indicators, including the extent to which the 
bank proactively updates its policies, practices, and

[[Page 78845]]

limits in response to changes in the industry and in the institution's 
strategy, business activities and risk tolerances.\40\
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    \40\ In addition to the foregoing, the applicant notes that the 
Canadian Bank SDs may be subject to heightened standards for their 
derivatives business in the near future under regulatory 
recommendations that would require registrants to establish, 
maintain and apply systems, policies and procedures that establish 
robust compliance and risk management systems specifically for their 
derivatives business. See CSA Consultation Paper 91-407.
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    Commission Determination: The Commission finds that the OSFI 
standards specified above are generally identical in intent to Sec.  
23.600 by requiring a system of risk management that seeks to ensure 
that firms are adequately managing the risks of their swaps activities 
to prevent failure of the SD or MSP, which could result in losses to 
counterparties doing business with the SD or MSP, and systemic risk 
more generally. Specifically, the Commission finds that the OSFI 
standards specified above would comprehensively require SDs and MSPs to 
establish risk management programs containing the following critical 
elements:
     Identification of risk categories;
     Establishment of risk tolerance limits for each category 
of risk and approval of such limits by senior management and the 
governing body;
     An independent risk management unit to administer a risk 
management program; and
     Periodic oversight of risk exposures by senior management 
and the governing body.
    Based on the foregoing and the representations of the applicant, 
the Commission hereby determines that the risk management program 
requirements of the OSFI standards, as specified above, are comparable 
to and as comprehensive as Sec.  23.600, with the exception of Sec.  
23.600(c)(2) concerning the requirement that each SD and MSP produce a 
quarterly risk exposure report and provide such report to its senior 
management, governing body, and the Commission.
    Notwithstanding that the Commission has not determined that the 
requirements of the OSFI standards are comparable to and as 
comprehensive as Sec.  23.600(c)(2), any SD or MSP to which both Sec.  
23.600 and the OSFI standards specified above are applicable would 
generally be deemed to be in compliance with Sec.  23.600(c)(2) if that 
SD or MSP complies with the OSFI standards specified above, subject to 
compliance with the requirement that it produce quarterly risk exposure 
reports and provide such reports to its senior management, governing 
body, and the Commission in accordance with Sec.  23.600(c)(2). The 
Commission notes that it generally expects reports furnished to the 
Commission by registrants to be in the English language.
2. Monitoring of Position Limits (Sec.  23.601)
    Commission Requirement: Implementing section 4s(j)(1) of the CEA, 
Commission regulation 23.601 requires each SD or MSP to establish and 
enforce written policies and procedures that are reasonably designed to 
monitor for, and prevent violations of, applicable position limits 
established by the Commission, a DCM, or a SEF.\41\ The policies and 
procedures must include an early warning system and provide for 
escalation of violations to senior management (including the firm's 
governing body).
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    \41\ The setting of position limits by the Commission, a DCM, or 
a SEF is subject to requirements under the CEA and Commission 
regulations other than Sec.  23.601. The setting of position limits 
and compliance with such limits is not subject to the Commission's 
substituted compliance regime.
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    Regulatory Objective: Generally, position limits are implemented to 
ensure market integrity, fairness, orderliness, and accurate pricing in 
the commodity markets. Commission regulation 23.601 thus seeks to 
ensure that SDs and MSPs have established the necessary policies and 
procedures to monitor the trading of the firm to prevent violations of 
applicable position limits established by the Commission, a DCM, or a 
SEF. As part of its Risk Management Program, Sec.  23.601 is intended 
to ensure that established position limits are not breached by the SD 
or MSP.
    Comparable Canadian Law and Regulations: The applicant has 
represented to the Commission that the following provisions of law and 
regulations applicable in Canada are in full force and effect in 
Canada, and comparable to and as comprehensive as section 4s(j)(1) of 
the CEA and Commission regulation Sec.  23.601.
    OSFI states that the monitoring of position limits is an aspect of 
the risk management and compliance framework for each bank. 
Specifically:
     OSFI's LCM Guideline requires Canadian banks to establish 
an enterprise-wide framework of regulatory risk management controls to 
ensure that regulatory compliance risks are managed effectively. The 
required LCM framework sets out OSFI's expectations and banks are 
required to demonstrate that they satisfy those expectations in 
particular circumstances; and
     OSFI expects that each bank's LCM framework will include 
identification, assessment, communication, and maintenance of 
applicable regulatory requirements, compliance procedures, monitoring 
procedures, and reporting procedures.\42\
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    \42\ In addition to the foregoing, the applicant also submitted 
various guidelines and required best practices concerning the 
setting of internal risk tolerance limits and monitoring for 
compliance with such internal limits. Although the Commission 
recognizes these as prudent risk management practices, the 
Commission does not believe that these provisions are relevant for a 
comparability determination with respect to Sec.  23.601 because 
Sec.  23.601 requires monitoring for compliance with external 
position limits set by the Commission, a DCM, or a SEF.
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     The applicants represent to the Commission that the OSFI 
requirement to monitor the effectiveness of procedures to ensure 
compliance with regulatory obligations includes applicable regulatory 
obligations of an SD or MSP under the CEA, Commission regulations, and 
position limits set by the Commission, a DCM, or a SEF. OSFI expects 
banks to comply with all applicable regulatory requirements, which 
includes legislation, regulations, and regulatory directives applicable 
to the activities of the bank or its subsidiaries worldwide.
    Commission Determination: The Commission finds that the OSFI 
standards specified above are generally identical in intent to Sec.  
23.601 by requiring SDs and MSPs to establish necessary policies and 
procedures to monitor the trading of the firm to prevent violations of 
applicable position limits established by applicable laws and 
regulations, including those of the Commission, a DCM, or a SEF. 
Specifically, the Commission finds that the OSFI standards specified 
above, while not specific to the issue of position limit compliance, 
nevertheless comprehensively require SDs and MSPs to monitor for 
regulatory compliance generally, including monitoring for compliance 
with position limits set pursuant to applicable law (including the CEA 
and Commission regulations) and the responsibility of senior management 
(including the board of directors) for such compliance.
    Based on the foregoing and the representations of the applicant, 
the Commission hereby determines that the compliance monitoring 
requirements of the OSFI standards, as specified above, are comparable 
to and as comprehensive as Sec.  23.601. For the avoidance of doubt, 
the Commission notes that this determination may not be relied on to 
relieve an SD or MSP from its obligation to strictly comply with any 
applicable

[[Page 78846]]

position limit established by the Commission, a DCM, or a SEF.
3. Diligent Supervision (Sec.  23.602)
    Commission Requirement: Commission regulation 23.602 implements 
section 4s(h)(1)(B) of the CEA and requires each SD and MSP to 
establish a system to diligently supervise all activities relating to 
its business performed by its partners, members, officers, employees, 
and agents. The system must be reasonably designed to achieve 
compliance with the CEA and CFTC regulations. Commission regulation 
23.602 requires that the supervisory system must specifically designate 
qualified persons with authority to carry out the supervisory 
responsibilities of the SD or MSP for all activities relating to its 
business as an SD or MSP.
    Regulatory Objective: The Commission's diligent supervision rule 
seeks to ensure that SDs and MSPs strictly comply with the CEA and the 
Commission's rules. To this end, through Sec.  23.602, the Commission 
seeks to ensure that each SD and MSP not only establishes the necessary 
policies and procedures that would lead to compliance with the CEA and 
Commission regulations, but also establishes an effective system of 
internal oversight and enforcement of such policies and procedures to 
ensure that such policies and procedures are diligently followed.
    Comparable Canadian Law and Regulations: The applicant has 
represented to the Commission that the following provisions of law and 
regulations applicable in Canada are in full force and effect in 
Canada, and comparable to and as comprehensive as section 4s(h)(1)(B) 
of the CEA and Commission regulation 23.602.
     Section 157 of the Bank Act imposes a duty on the board of 
directors of a bank to manage or supervise the management of the 
business and affairs of the bank.
     OSFI's Supervisory Framework states that the board and 
senior management are designated as ultimately accountable for the 
safety and soundness of the bank.
     OSFI's Corporate Governance Guideline states that banks 
should appoint a senior officer, identified as the Chief Risk Officer 
(``CRO''), who has responsibility for the oversight of all relevant 
risks across the firm. The CRO must be identified in the bank's license 
application along with a description of the resources and authority 
allocated to discharge his duties. Like the CCO, the CRO should have 
sufficient stature and authority within the organization, be 
independent from operational management, have unfettered access and, 
for functional purposes, a direct reporting line to the board of 
directors or risk committee.
    In addition, the applicant states that diligent supervision is an 
aspect of the risk management and compliance framework for each bank, 
which includes requirements for controls and monitoring. Specifically:
     OSFI's LCM Guideline requires Canadian banks to establish 
an enterprise-wide framework of regulatory risk management controls to 
ensure that regulatory compliance risks are managed effectively. The 
required LCM framework sets out OSFI's expectations and banks are 
required to demonstrate that they satisfy those expectations in 
particular circumstances; and
     OSFI expects that each bank's LCM framework will include 
identification, assessment, communication, and maintenance of 
applicable regulatory requirements, compliance procedures, monitoring 
procedures, and reporting procedures.
     The applicants represent to the Commission that the OSFI 
requirement to monitor the effectiveness of procedures to ensure 
compliance with regulatory obligations includes applicable regulatory 
obligations of an SD or MSP under the CEA and Commission regulations. 
OSFI expects banks to comply with all applicable regulatory 
requirements, which includes legislation, regulations, and regulatory 
directives applicable to the activities of the bank or its subsidiaries 
worldwide.
    Commission Determination: The Commission finds that the provisions 
of the Bank Act and the OSFI standards specified above are generally 
identical in intent to Sec.  23.602 because such standards seek to 
ensure that SDs and MSPs strictly comply with applicable law, which 
would include the CEA and the Commission's regulations. Through the 
provisions of the Bank Act and the OSFI standards specified above, 
Canadian laws and regulations seek to ensure that each SD and MSP not 
only establishes the necessary policies and procedures that would lead 
to compliance with applicable law, which would include the CEA and 
Commission regulations, but also establishes an effective system of 
internal oversight and enforcement of such policies and procedures to 
ensure that such policies and procedures are diligently followed.
    Based on the foregoing and the representations of the applicant, 
the Commission hereby determines that the internal supervision 
requirements of the Bank Act and the OSFI standards, as specified 
above, are comparable to and as comprehensive as Sec.  23.602.
4. Business Continuity and Disaster Recovery (Sec.  23.603)
    Commission Requirement: To ensure the proper functioning of the 
swaps markets and the prevention of systemic risk more generally, 
Commission regulation 23.603 requires each SD and MSP, as part of its 
risk management program, to establish a business continuity and 
disaster recovery plan that includes procedures for, and the 
maintenance of, back-up facilities, systems, infrastructure, personnel, 
and other resources to achieve the timely recovery of data and 
documentation and to resume operations generally within the next 
business day after the disruption.
    Regulatory Objective: Commission regulation 23.603 is intended to 
ensure that any market disruption affecting SDs and MSPs, whether 
caused by natural disaster or otherwise, is minimized in length and 
severity. To that end, this requirement seeks to ensure that entities 
adequately plan for disruptions and devote sufficient resources capable 
of carrying out an appropriate plan within one business day, if 
necessary.
    Comparable Canadian Law and Regulations: The applicant has 
represented to the Commission that the following provisions of law and 
regulations applicable in Canada are in full force and effect in 
Canada, and comparable to and as comprehensive as Commission regulation 
23.603.
    The applicant has represented that business continuity and disaster 
recovery are aspects of the risk management framework for each bank. 
Specifically:
     OSFI's Derivatives Best Practice Guideline requires banks 
to regularly assess contingency plans to deal with operations and 
systems risks.
     OSFI's Outsourcing of Business Activities, Functions and 
Processes Guideline requires banks that outsource functions to ensure 
that adequate continuity and disaster recovery are in place.
     OSFI's Supervisory Framework subjects each bank to a 
``Business Continuity & Disaster Recovery Preparedness Cross Sector 
Review'' that is divided into three broad sections: Structure, 
Operational Management, and Controls & Oversight. Pursuant to such 
review, OSFI ensures: the existence of a plan for both business 
continuity and disaster recovery; that such plans have essential 
components related to identification of documents, data, staff, 
supervisory personnel, back-up locations, third party disruptions,

[[Page 78847]]

etc.; that plans are distributed to all employees; that appropriate 
emergency contacts are identified; that plans are reviewed at least 
annually; that plans are subject to comprehensive testing and audit; 
and that records related to developing and maintaining the plans are 
maintained in accordance with banking supervisory guidelines and are 
accessible to OSFI.
    Commission Determination: The Commission finds that the OSFI 
standards specified above are generally identical in intent to Sec.  
23.603 because such standards seek to ensure that any market disruption 
affecting SDs and MSPs, whether caused by natural disaster or 
otherwise, is minimized in length and severity. To that end, the 
Commission finds that the OSFI standards specified above seek to ensure 
that entities adequately plan for disruptions and devote sufficient 
resources capable of carrying out an appropriate plan in a timely 
manner.
    Based on the foregoing and the representations of the applicant, 
the Commission hereby determines that the business continuity and 
disaster recovery requirements of the OSFI standards, as specified 
above, are comparable to and as comprehensive as Sec.  23.603.
5. Conflicts of Interest (Sec.  23.605)
    Commission Requirement: Section 4s(j)(5) of the CEA and Commission 
regulation 23.605(c) generally require each SD or MSP to establish 
structural and institutional safeguards to ensure that the activities 
of any person within the firm relating to research or analysis of the 
price or market for any commodity or swap are separated by appropriate 
informational partitions within the firm from the review, pressure, or 
oversight of persons whose involvement in pricing, trading, or clearing 
activities might potentially bias their judgment or supervision.
    In addition, section 4s(j)(5) of the CEA and Commission regulation 
23.605(d)(1) generally prohibits an SD or MSP from directly or 
indirectly interfering with or attempting to influence the decision of 
any clearing unit of any affiliated clearing member of a DCO to provide 
clearing services and activities to a particular customer, including:
     Whether to offer clearing services to a particular 
customer;
     Whether to accept a particular customer for clearing 
derivatives;
     Whether to submit a customer's transaction to a particular 
DCO;
     Whether to set or adjust risk tolerance levels for a 
particular customer; or
     Whether to set a customer's fees based on criteria other 
than those generally available and applicable to other customers.
    Commission regulation 23.605(d)(2) generally requires each SD or 
MSP to create and maintain an appropriate informational partition 
between business trading units of the SD or MSP and clearing units of 
any affiliated clearing member of a DCO to reasonably ensure compliance 
with the Act and the prohibitions set forth in Sec.  23.605(d)(1) 
outlined above.
    The Commission observes that Sec.  23.605(d) works in tandem with 
Commission regulation 1.71, which requires FCMs that are clearing 
members of a DCO and affiliated with an SD or MSP to create and 
maintain an appropriate informational partition between business 
trading units of the SD or MSP and clearing units of the FCM to 
reasonably ensure compliance with the Act and the prohibitions set 
forth in Sec.  1.71(d)(1), which are the same as the prohibitions set 
forth in Sec.  23.605(d)(1) outlined above.
    Finally, Sec.  23.605(e) requires that each SD or MSP have policies 
and procedures that mandate the disclosure to counterparties of 
material incentives or conflicts of interest regarding the decision of 
a counterparty to execute a derivative on a swap execution facility or 
DCM or to clear a derivative through a DCO.
    Regulatory Objective: Commission regulation 23.605(c) seeks to 
ensure that research provided to the general public by an SD or MSP is 
unbiased and free from the influence of the interests of an SD or MSP 
arising from the SD's or MSP's trading business.
    In addition, the Sec.  23.605(d) (working in tandem with Sec.  
1.71) seeks to ensure open access to the clearing of swaps by requiring 
that access to and the provision of clearing services provided by an 
affiliate of an SD or MSP are not influenced by the interests of an 
SD's or MSP's trading business.
    Finally, Sec.  23.605(e) seeks to ensure equal access to trading 
venues and clearinghouses, as well as orderly and fair markets, by 
requiring that each SD and MSP disclose to counterparties any material 
incentives or conflicts of interest regarding the decision of a 
counterparty to execute a derivative on a SEF or DCM, or to clear a 
derivative through a DCO.
    Comparable Canadian Law and Regulations: The applicant has 
represented to the Commission that the following provisions of law and 
regulations applicable in Canada are in full force and effect in 
Canada, and comparable to and as comprehensive as Commission regulation 
23.605(c).
    The Bank Act subsection 157(2)(c), as well as the Competition Act, 
requires that directors of a bank establish procedures to resolve 
conflicts of interest, including techniques for the identification and 
remediation of potential conflict situations, tied selling, exclusive 
dealing, and refusal to deal, and for restricting the use of 
confidential information.
    The Bank Act subsection 157(2)(b) requires the directors of a bank 
to have a review committee to ensure compliance with the self-dealing 
provisions of the Bank Act, while 157(2)(d) requires that banks 
designate a committee of the board of directors to monitor the conflict 
of interest procedures.
    The Bank Act subsection 459.1(1) prohibits a bank from imposing 
undue pressure on, or coercing a person to obtain a product or service 
from a particular person, including the bank and any of its affiliates, 
as a condition for obtaining another product or service from the bank.
    The Bank Act subsection 459.1(4.1) requires a bank to disclose 
coercive tied selling arrangements.
    OSFI's Supervisory Framework requires monitoring of conflicts of 
interest through a bank's risk management program.
    The applicants have represented to the Commission that OSFI, in the 
process of its oversight and enforcement of the foregoing Canadian 
standards, would require any SD or MSP subject to such standards to 
resolve or mitigate conflicts of interests in the provision of clearing 
services by a clearing member of a DCO that is an affiliate of the SD 
or MSP, or the decision of a counterparty to execute a derivative on a 
SEF or DCM, or clear a derivative through a DCO, through appropriate 
information firewalls and disclosures.
    Commission Determination: The Commission finds that the Bank Act 
standards specified above with respect to conflicts of interest that 
may arise in producing or distributing research are generally identical 
in intent to Sec.  23.605(c) because such standards seek to ensure that 
research provided to the general public by an SD is unbiased and free 
from the influence of the interests of an SD arising from the SD's 
trading business.
    With respect to conflicts of interest that may arise in the 
provision of clearing services by an affiliate of an SD or MSP, the 
Commission further finds that although the general conflicts of 
interest prevention requirements under the Bank Act standards specified 
above

[[Page 78848]]

do not require with specificity that access to and the provision of 
clearing services provided by an affiliate of an SD or MSP not be 
improperly influenced by the interests of an SD's or MSP's trading 
business, such general requirements would require prevention and 
remediation of such improper influence when recognized or discovered. 
Thus such standards would ensure open access to clearing.
    Finally, although not as specific as the requirements of Sec.  
23.605(e) (Undue influence on counterparties), the Commission finds 
that the general disclosure requirements of the Bank Act standards 
specified above would ensure equal access to trading venues and 
clearinghouses by requiring that each SD and MSP disclose to 
counterparties any material incentives or conflicts of interest 
regarding the decision of a counterparty to execute a derivative on a 
SEF or DCM, or to clear a derivative through a DCO.
    Based on the foregoing and the representations of the applicants, 
the Commission hereby determines that the requirements found in the 
Bank Act standards specified above in relation to conflicts of interest 
are comparable to and as comprehensive as Sec.  23.605.
6. Availability of Information for Disclosure and Inspection (Sec.  
23.606)
    Commission Requirement: Commission regulation 23.606 implements 
sections 4s(j)(3) and (4) of the CEA, and requires each SD and MSP to 
disclose to the Commission, and an SD's or MSP's U.S. prudential 
regulator (if any) comprehensive information about its swap activities, 
and to establish and maintain reliable internal data capture, 
processing, storage, and other operational systems sufficient to 
capture, process, record, store, and produce all information necessary 
to satisfy its duties under the CEA and Commission regulations. Such 
systems must be designed to provide such information to the Commission 
and an SD's or MSP's U.S. prudential regulator within the time frames 
set forth in the CEA and Commission regulations and upon request.
    Regulatory Objective: Commission regulation 23.606 seeks to ensure 
that each SD and MSP captures and maintains comprehensive information 
about their swap activities, and is able to retrieve and disclose such 
information to the Commission and its U.S. prudential regulator, if 
any, as necessary for compliance with the CEA and the Commission's 
regulations and for purposes of Commission oversight, as well as 
oversight by the SD's or MSP's U.S. prudential regulator, if any.
    The Commission observes that it would be impossible to meet the 
regulatory objective of Sec.  23.606 unless the required information is 
available to the Commission and any U.S. prudential regulator under the 
foreign legal regime. Thus, a comparability determination with respect 
to the information access provisions of Sec.  23.606 would be premised 
on whether the relevant information would be available to the 
Commission and any U.S. prudential regulator of the SD or MSP, not on 
whether an SD or MSP must disclose comprehensive information to its 
regulator in its home jurisdiction.
    Comparable Canadian Law and Regulations: The applicant has 
represented to the Commission that the following provisions of law and 
regulations applicable in Canada are in full force and effect in 
Canada, and comparable to and as comprehensive as Commission regulation 
23.606.
    OSFI relies on general reporting obligations of Canadian banks and 
OSFI's monitoring function under the OSFI Supervisory Framework with 
respect to availability of information for disclosure and inspection. 
Specifically, banks are expected to have appropriate policies and 
procedures in place to ensure that all regulatory filings are received 
by OSFI within specified timeframes and are error free. Banks are 
subject to penalties for late or erroneous filings pursuant to OSFI's 
Late and Erroneous Filing Penalty Framework.
    With respect to data capture and retention, as part of the bank 
licensing process, OSFI must approve a bank's operational risk 
management policies, including policies related to information 
technology, information management and security, and records retention.
    As part of the OSFI Supervisory Framework, OSFI generally requires 
banks to establish and maintain an enterprise-wide LCM framework. OSFI 
expects the LCM framework to include ``Adequate Documentation'' as one 
of its key controls. As set forth in the OSFI Derivatives Best Practice 
Guideline, each bank should have mechanisms in place to assure the 
confirmation, maintenance and safeguarding of derivatives contract 
documentation. In particular, it states:

    [t]he design of information systems will vary according to the 
risks demanded by the scope and complexity of an institution's 
involvement in derivatives. The degree of accuracy and timeliness of 
information processing should be sufficient to meet an institution's 
risk exposure monitoring needs. Appropriate information processing 
and reporting capabilities should be put in place and fully 
operational.

    Commission Determination: The Commission finds that the OSFI 
standards specified above are generally identical in intent to Sec.  
23.606 because such standards seek to ensure that each SD and MSP 
captures and stores comprehensive information about their swap 
activities, and are able to retrieve and disclose such information as 
necessary for compliance with applicable law and for purposes of 
regulatory oversight.
    Based on the foregoing and the representations of the applicant, 
the Commission hereby determines that the OSFI standards with respect 
to the availability of information for inspection and disclosure, as 
specified above, are comparable to, and as comprehensive as, Sec.  
23.606, with the exception of Sec.  23.606(a)(2) concerning the 
requirement that an SD or MSP make information required by Sec.  
23.606(a)(1) available promptly upon request to Commission staff and 
the staff of an applicable U.S. prudential regulator. The applicant has 
not submitted any provision of law or regulations applicable in Canada 
upon which the Commission could make a finding that SDs and MSPs would 
be required to retrieve and disclose comprehensive information about 
their swap activities to the Commission or any U.S. prudential 
regulator as necessary for compliance with the CEA and Commission 
regulations, and for purposes of Commission oversight and the oversight 
of any U.S. prudential regulator.
    Notwithstanding that the Commission has not determined that the 
requirements of the OSFI standards are comparable to and as 
comprehensive as Sec.  23.606(a)(2), any SD or MSP to which both Sec.  
23.606 and the OSFI standards specified above are applicable would 
generally be deemed to be in compliance with Sec.  23.606(a)(2) if that 
SD or MSP complies with the OSFI standards specified above, subject to 
compliance with the requirement that it produce information to 
Commission staff and the staff of an applicable U.S. prudential 
regulator in accordance with Sec.  23.606(a)(2).
7. Clearing Member Risk Management (Sec.  23.609)
    Commission Requirement: Commission regulation 23.609 generally 
requires each SD or MSP that is a clearing member of a DCO to:
     Establish risk-based limits based on position size, order 
size, margin requirements, or similar factors;
     Screen orders for compliance with the risk-based limits;

[[Page 78849]]

     Monitor for adherence to the risk-based limits intra-day 
and overnight;
     Conduct stress tests under extreme but plausible 
conditions of all positions at least once per week;
     Evaluate its ability to meet initial margin requirements 
at least once per week;
     Evaluate its ability to meet variation margin requirements 
in cash at least once per week;
     Evaluate its ability to liquidate positions it clears in 
an orderly manner, and estimate the cost of liquidation; and
     Test all lines of credit at least once per year.
    Regulatory Objective: Through Commission regulation 23.609, the 
Commission seeks to ensure the financial integrity of the markets and 
the clearing system, to avoid systemic risk, and to protect customer 
funds. Effective risk management by SDs and MSPs that are clearing 
members is essential to achieving these objectives. A failure of risk 
management can cause a clearing member to become insolvent and default 
to a DCO. Such default can disrupt the markets and the clearing system 
and harm customers.
    Comparable Canadian Law and Regulations: The applicant has 
represented to the Commission that the following provisions of law and 
regulations applicable in Canada are in full force and effect in 
Canada, and comparable to and as comprehensive as Commission regulation 
23.609.
    OSFI stated that, to the extent that any bank is a clearing member, 
risk management specifically for clearing members is an aspect of the 
risk management framework.
    OSFI Derivatives Best Practice Guideline states that banks should 
have knowledgeable individuals or units responsible for risk monitoring 
and control functions, including the responsibility for actively 
monitoring transactions and positions for adherence to internal policy 
limits. Moreover, stress tests should be performed regularly and should 
account for abnormally large market swings and periods of prolonged 
inactivity, while considering the effect of price changes on the ``mid-
market value'' of the portfolio.
    More generally, the OSFI Corporate Governance Guideline requires 
that each bank establish a risk appetite framework (``RAF'') that:
     Guides the amount of risk the bank is willing to accept in 
pursuit of its strategic and business objectives.
     Sets basic goals, benchmarks, parameters, and limits, and 
should consider all applicable types of risks.
     Contains all elements required by an annex to the 
Corporate Governance Guideline, including a risk appetite statement, 
specific risk tolerance limits, and processes for implementation of the 
RAF.
    Further, the OSFI Corporate Governance Guideline states that DSIBs 
should establish a dedicated risk committee to oversee risk management 
on an enterprise-wide basis, and that the oversight of the risk 
management activities of the bank are to be independent from 
operational management, adequately resourced, and have appropriate 
status and visibility.
    The OSFI Derivatives Best Practice Guideline states that each bank 
should ensure that each derivative product traded is subject to a 
product authorization signed off by senior management, and sets forth 
OSFI's expectations with respect to having documented policies and 
procedures for risk management, creating risk tolerance limits, and 
measuring, reporting, managing, and controlling the risks associated 
with the derivatives business, including market, currency, interest 
rate, equity price, commodity price, credit, settlement, liquidity, 
operational, and legal risks.
    OSFI represents that its oversight pursuant to the Supervisory 
Framework will assess the extent to which the risk management function 
integrates policies, practices, and limits with day-to-day business 
activities and with the bank's strategic, capital, and liquidity 
management policies. Under the Supervisory Framework, OSFI also will 
assess whether the risk management function effectively monitors risk 
positions against approved limits and ensures that material breaches 
are addressed on a timely basis. OSFI represents that it will look at 
various indicators, including the extent to which the bank proactively 
updates its policies, practices, and limits in response to changes in 
the industry and in the institution's strategy, business activities and 
risk tolerances.\43\
---------------------------------------------------------------------------

    \43\ In addition to the foregoing, the applicant notes that the 
Canadian Bank SDs may be subject to heightened standards for their 
derivatives business in the near future under regulatory 
recommendations that would require registrants to establish, 
maintain and apply systems, policies and procedures that establish 
robust compliance and risk management systems specifically for their 
derivatives business. See CSA Consultation Paper 91-407.
---------------------------------------------------------------------------

    Specifically, OSFI has represented to the Commission that, in the 
process of its oversight and enforcement of the foregoing Canadian law 
and regulations, any SD or MSP subject to such standards that is a 
clearing member of a DCO would be required to comply with clearing 
member risk management requirements comparable to Commission regulation 
23.609.
    Commission Determination: The Commission finds that the OSFI 
standards specified above are generally identical in intent to Sec.  
23.609 because such standards seek to ensure the financial integrity of 
the markets and the clearing system, to avoid systemic risk, and to 
protect customer funds.
    The Commission notes that the OSFI standards specified above are 
not as specific as Sec.  23.609 with respect to ensuring that SDs and 
MSPs that are clearing members of a DCO establish detailed procedures 
and limits for clearing member risk management purposes. Nevertheless, 
the Commission finds that the general requirements under the OSFI 
standards specified above, implemented in the context of clearing 
member risk management and pursuant to the representations of OSFI, 
meet the Commission's regulatory objective specified above.
    Based on the foregoing and the representations above, the 
Commission hereby determines that the clearing member risk management 
requirements of the Canadian law and regulations specified above are 
comparable to and as comprehensive as Sec.  23.609.

C. Swap Data Recordkeeping (Sec. Sec.  23.201 and 23.203)

    Commission Requirement: Sections 4s(f)(1)(B) and 4s(g)(1) of the 
CEA, and Commission regulation 23.201 generally require SDs and MSPs to 
retain records of each transaction, each position held, general 
business records (including records related to complaints and sales and 
marketing materials), records related to governance, financial records, 
records of data reported to SDRs, and records of real-time reporting 
data along with a record of the date and time the SD or MSP made such 
reports. Transaction records must be kept in a form and manner 
identifiable and searchable by transaction and counterparty.
    Commission regulation 23.203, requires SDs and MSPs to maintain 
records of a swap transaction until the termination, maturity, 
expiration, transfer, assignment, or novation date of the transaction, 
and for a period of five years after such date. Records must be 
``readily accessible'' for the first 2 years of the 5 year retention 
period (consistent with Sec.  1.31).
    The Commission notes that the comparability determination below 
with respect to Sec. Sec.  23.201 and 23.203 encompasses both swap data 
recordkeeping generally and swap data recordkeeping relating to 
complaints

[[Page 78850]]

and marketing and sales materials in accordance with Sec.  23.201(b)(3) 
and (4).\44\
---------------------------------------------------------------------------

    \44\ See the Guidance for a discussion of the availability of 
substituted compliance with respect to swap data recordkeeping, 78 
FR 45332-33.
---------------------------------------------------------------------------

    Regulatory Objective: Through the Commission's regulations 
requiring SDs and MSPs to keep comprehensive records of their swap 
transactions and related data, the Commission seeks to ensure the 
effectiveness of the internal controls of SDs and MSPs, and 
transparency in the swaps market for regulators and market 
participants.
    The Commission's regulations require SDs and MSPs to keep swap data 
in a level of detail sufficient to enable regulatory authorities to 
understand an SD's or MSP's swaps business and to assess its swaps 
exposure.
    By requiring comprehensive records of swap data, the Commission 
seeks to ensure that SDs and MSPs employ effective risk management, and 
strictly comply with Commission regulations. Further, such records 
facilitate effective regulatory oversight.
    The Commission observes that it would be impossible to meet the 
regulatory objective of Sec. Sec.  23.201 and 23.203 unless the 
required information is available to the Commission and any U.S. 
prudential regulator under the foreign legal regime. Thus, a 
comparability determination with respect to the information access 
provisions of Sec.  23.203 would be premised on whether the relevant 
information would be available to the Commission and any U.S. 
prudential regulator of the SD or MSP, not on whether an SD or MSP must 
disclose comprehensive information to its regulator in its home 
jurisdiction.
    Comparable Canadian Law and Regulations: The applicant has 
represented to the Commission that the following provisions of law and 
regulations applicable in Canada are in full force and effect in 
Canada, and comparable to and as comprehensive as sections 4s(f)(1)(B) 
and 4s(g)(1) of the CEA and Sec. Sec.  23.201 and 23.203.
    OSFI's Supervisory Framework requires banks to establish and 
maintain an enterprise-wide LCM framework of regulatory risk management 
controls, and these controls include oversight functions that are 
independent of the activities they oversee. OSFI expects the LCM 
framework to include ``Adequate Documentation'' as one of its key 
controls.
    As set forth in the OSFI Derivatives Best Practice Guideline, each 
bank should have mechanisms in place to assure the confirmation, 
maintenance, and safeguarding of derivatives contract documentation. In 
particular, it states:

[t]he design of information systems will vary according to the risks 
demanded by the scope and complexity of an institution's involvement 
in derivatives. The degree of accuracy and timeliness of information 
processing should be sufficient to meet an institution's risk 
exposure monitoring needs. Appropriate information processing and 
reporting capabilities should be put in place and fully operational.

    Finally, Sections 238, 239 and 597 of the Bank Act generally 
require banks carrying on business in Canada to maintain records in 
Canada and to ensure that OSFI can access in Canada any records 
necessary to enable OSFI to fulfill its supervisory mandate.
    Commission Determination: The Commission finds that the Bank Act 
and OSFI standards specified above are generally identical in intent to 
Sec. Sec.  23.201 and 23.203 because such standards seek to ensure the 
effectiveness of the internal controls of SDs and MSPs, and 
transparency in the swaps market for regulators and market 
participants.
    In addition, the Commission finds that the Bank Act and OSFI 
standards specified above require SDs and MSPs to keep swap data in a 
level of detail sufficient to enable regulatory authorities to 
understand an SD's or MSP's swaps business and to assess its swaps 
exposure.
    Finally, the Commission finds that the Bank Act and OSFI standards 
specified above, by requiring comprehensive records of swap data, seek 
to ensure that SDs and MSPs employ effective risk management, seek to 
ensure that SDs and MSPs strictly comply with applicable regulatory 
requirements (including the CEA and Commission regulations), and that 
such records facilitate effective regulatory oversight.
    Based on the foregoing and the representations of the applicant, 
the Commission hereby determines that the requirements of the Bank Act 
and the OSFI standards with respect to swap data recordkeeping, as 
specified above, are comparable to, and as comprehensive as, Sec. Sec.  
23.201 and 23.203, with the exception of Sec.  23.203(b)(2) concerning 
the requirement that an SD or MSPs make records required by Sec.  
23.201 open to inspection by any representative of the Commission, the 
United States Department of Justice, or any applicable U.S. prudential 
regulator. The applicant has not submitted any provision of law or 
regulations applicable in Canada upon which the Commission could make a 
finding that SDs and MSPs would be required to make records required by 
Sec.  23.201 open to inspection by any representative of the 
Commission, the United States Department of Justice, or any applicable 
U.S. prudential regulator.
    Notwithstanding that the Commission has not determined that the 
requirements of the Bank Act and the OSFI standards are comparable to 
and as comprehensive as Sec.  23.203(b)(2), any SD or MSP to which both 
Sec.  23.203 and the Bank Act and OSFI standards specified above are 
applicable would generally be deemed to be in compliance with Sec.  
23.203(b)(2) if that SD or MSP complies with the Bank Act and OSFI 
standards specified above, subject to compliance with the requirement 
that it make records required by Sec.  23.201 open to inspection by any 
representative of the Commission, the United States Department of 
Justice, or any applicable U.S. prudential regulator in accordance with 
Sec.  23.203(b)(2).

    Issued in Washington, DC on December 20, 2013, by the 
Commission.
Christopher J. Kirkpatrick,
Deputy Secretary of the Commission.

Appendices to Comparability Determination for Canada: Certain Entity-
Level Requirements

Appendix 1--Commission Voting Summary

    On this matter, Chairman Gensler and Commissioners Chilton and 
Wetjen voted in the affirmative. Commissioner O'Malia voted in the 
negative.

Appendix 2--Joint Statement of Chairman Gary Gensler and Commissioners 
Bart Chilton and Mark Wetjen

    We support the Commission's approval of broad comparability 
determinations that will be used for substituted compliance 
purposes. For each of the six jurisdictions that has registered swap 
dealers, we carefully reviewed each regulatory provision of the 
foreign jurisdictions submitted to us and compared the provision's 
intended outcome to the Commission's own regulatory objectives. The 
resulting comparability determinations for entity-level requirements 
permit non-U.S. swap dealers to comply with regulations in their 
home jurisdiction as a substitute for compliance with the relevant 
Commission regulations.
    These determinations reflect the Commission's commitment to 
coordinating our efforts to bring transparency to the swaps market 
and reduce its risks to the public. The comparability findings for 
the entity-level requirements are a testament to the comparability 
of these regulatory systems as we work together in building a strong 
international regulatory framework.
    In addition, we are pleased that the Commission was able to find 
comparability with respect to swap-specific transaction-

[[Page 78851]]

level requirements in the European Union and Japan.
    The Commission attained this benchmark by working cooperatively 
with authorities in Australia, Canada, the European Union, Hong 
Kong, Japan, and Switzerland to reach mutual agreement. The 
Commission looks forward to continuing to collaborate with both 
foreign authorities and market participants to build on this 
progress in the months and years ahead.

Appendix 3--Statement of Dissent by Commissioner Scott D. O'Malia

    I respectfully dissent from the Commodity Futures Trading 
Commission's (``Commission'') approval of the Notices of 
Comparability Determinations for Certain Requirements under the laws 
of Australia, Canada, the European Union, Hong Kong, Japan, and 
Switzerland (collectively, ``Notices''). While I support the narrow 
comparability determinations that the Commission has made, moving 
forward, the Commission must collaborate with foreign regulators to 
harmonize our respective regimes consistent with the G-20 reforms.
    However, I cannot support the Notices because they: (1) Are 
based on the legally unsound cross-border guidance 
(``Guidance'');\1\ (2) are the result of a flawed substituted 
compliance process; and (3) fail to provide a clear path moving 
forward. If the Commission's objective for substituted compliance is 
to develop a narrow rule-by-rule approach that leaves unanswered 
major regulatory gaps between our regulatory framework and foreign 
jurisdictions, then I believe that the Commission has successfully 
achieved its goal today.
---------------------------------------------------------------------------

    \1\ Interpretive Guidance and Policy Statement Regarding 
Compliance with Certain Swap Regulations, 78 FR 45292 (Jul. 26, 
2013).
---------------------------------------------------------------------------

Determinations Based on Legally Unsound Guidance

    As I previously stated in my dissent, the Guidance fails to 
articulate a valid statutory foundation for its overbroad scope and 
inconsistently applies the statute to different activities.\2\ 
Section 2(i) of the Commodity Exchange Act (``CEA'') states that the 
Commission does not have jurisdiction over foreign activities unless 
``those activities have a direct and significant connection with 
activities in, or effect on, commerce of the United States . . .'' 
\3\ However, the Commission never properly articulated how and when 
this limiting standard on the Commission's extraterritorial reach is 
met, which would trigger the application of Title VII of the Dodd-
Frank Act \4\ and any Commission regulations promulgated thereunder 
to swap activities that are outside of the United States. Given this 
statutorily unsound interpretation of the Commission's 
extraterritorial authority, the Commission often applies CEA section 
2(i) inconsistently and arbitrarily to foreign activities.
---------------------------------------------------------------------------

    \2\ http://www.cftc.gov/PressRoom/SpeechesTestimony/omaliastatement071213b.
    \3\ CEA section 2(i); 7 U.S.C. 2(i).
    \4\ Title VII of the Dodd-Frank Wall Street Reform and Consumer 
Protection Act, Public Law 111-203, 124 Stat. 1376 (2010).
---------------------------------------------------------------------------

    Accordingly, because the Commission is relying on the legally 
deficient Guidance to make its substituted compliance 
determinations, and for the reasons discussed below, I cannot 
support the Notices. The Commission should have collaborated with 
foreign regulators to agree on and implement a workable regime of 
substituted compliance, and then should have made determinations 
pursuant to that regime.

Flawed Substituted Compliance Process

    Substituted compliance should not be a case of picking a set of 
foreign rules identical to our rules, determining them to be 
``comparable,'' but then making no determination regarding rules 
that require extensive gap analysis to assess to what extent each 
jurisdiction is, or is not, comparable based on overall outcomes of 
the regulatory regimes. While I support the narrow comparability 
determinations that the Commission has made, I am concerned that in 
a rush to provide some relief, the Commission has made substituted 
compliance determinations that only afford narrow relief and fail to 
address major regulatory gaps between our domestic regulatory 
framework and foreign jurisdictions. I will address a few examples 
below.
    First, earlier this year, the OTC Derivatives Regulators Group 
(``ODRG'') agreed to a number of substantive understandings to 
improve the cross-border implementation of over-the-counter 
derivatives reforms.\5\ The ODRG specifically agreed that a 
flexible, outcomes-based approach, based on a broad category-by-
category basis, should form the basis of comparability 
determinations.\6\
---------------------------------------------------------------------------

    \5\ http://www.cftc.gov/PressRoom/PressReleases/pr6678-13.
    \6\ http://www.cftc.gov/ucm/groups/public/@newsroom/documents/file/odrgreport.pdf. The ODRG agreed to six understandings. 
Understanding number 2 states that ``[a] flexible, outcomes-based 
approach should form the basis of final assessments regarding 
equivalence or substituted compliance.''
---------------------------------------------------------------------------

    However, instead of following this approach, the Commission has 
made its comparability determinations on a rule-by-rule basis. For 
example, in Japan's Comparability Determination for Transaction-
Level Requirements, the Commission has made a positive comparability 
determination for some of the detailed requirements under the swap 
trading relationship documentation provisions, but not for other 
requirements.\7\ This detailed approach clearly contravenes the 
ODRG's understanding.
---------------------------------------------------------------------------

    \7\ The Commission made a positive comparability determination 
for Commission regulations 23.504(a)(2), (b)(1), (b)(2), (b)(3), 
(b)(4), (c), and (d), but not for Commission regulations 
23.504(b)(5) and (b)(6).
---------------------------------------------------------------------------

    Second, in several areas, the Commission has declined to 
consider a request for a comparability determination, and has also 
failed to provide an analysis regarding the extent to which the 
other jurisdiction is, or is not, comparable. For example, the 
Commission has declined to address or provide any clarity regarding 
the European Union's regulatory data reporting determination, even 
though the European Union's reporting regime is set to begin on 
February 12, 2014. Although the Commission has provided some limited 
relief with respect to regulatory data reporting, the lack of 
clarity creates unnecessary uncertainty, especially when the 
European Union's reporting regime is set to begin in less than two 
months.
    Similarly, Japan receives no consideration for its mandatory 
clearing requirement, even though the Commission considers Japan's 
legal framework to be comparable to the U.S. framework. While the 
Commission has declined to provide even a partial comparability 
determination, at least in this instance the Commission has provided 
a reason: The differences in the scope of entities and products 
subject to the clearing requirement.\8\ Such treatment creates 
uncertainty and is contrary to increased global harmonization 
efforts.
---------------------------------------------------------------------------

    \8\ Yen-denominated interest rate swaps are subject to the 
mandatory clearing requirement in both the U.S. and Japan.
---------------------------------------------------------------------------

    Third, in the Commission's rush to meet the artificial deadline 
of December 21, 2013, as established in the Exemptive Order 
Regarding Compliance with Certain Swap Regulations (``Exemptive 
Order''),\9\ the Commission failed to complete an important piece of 
the cross-border regime, namely, supervisory memoranda of 
understanding (``MOUs'') between the Commission and fellow 
regulators.
---------------------------------------------------------------------------

    \9\ Exemptive Order Regarding Compliance With Certain Swap 
Regulations, 78 FR 43785 (Jul. 22, 2013).
---------------------------------------------------------------------------

    I have previously stated that these MOUs, if done right, can be 
a key part of the global harmonization effort because they provide 
mutually agreed-upon solutions for differences in regulatory 
regimes.\10\ Accordingly, I stated that the Commission should be 
able to review MOUs alongside the respective comparability 
determinations and vote on them at the same time. Without these 
MOUs, our fellow regulators are left wondering whether and how any 
differences, such as direct access to books and records, will be 
resolved.
---------------------------------------------------------------------------

    \10\ http://www.cftc.gov/PressRoom/SpeechesTestimony/opaomalia-29.
---------------------------------------------------------------------------

    Finally, as I have consistently maintained, the substituted 
compliance process should allow other regulatory bodies to engage 
with the full Commission.\11\ While I am pleased that the Notices 
are being voted on by the Commission, the full Commission only 
gained access to the comment letters from foreign regulators on the 
Commission's comparability determination draft proposals a few days 
ago. This is hardly a transparent process.
---------------------------------------------------------------------------

    \11\ http://www.cftc.gov/PressRoom/SpeechesTestimony/omaliastatement071213b.
---------------------------------------------------------------------------

Unclear Path Forward

    Looking forward to next steps, the Commission must provide 
answers to several outstanding questions regarding these 
comparability determinations. In doing so, the Commission must 
collaborate with foreign regulators to increase global 
harmonization.
    First, there is uncertainty surrounding the timing and outcome 
of the MOUs. Critical

[[Page 78852]]

questions regarding information sharing, cooperation, supervision, 
and enforcement will remain unanswered until the Commission and our 
fellow regulators execute these MOUs.
    Second, the Commission has issued time-limited no-action relief 
for the swap data repository reporting requirements. These 
comparability determinations will be done as separate notices. 
However, the timing and process for these determinations remain 
uncertain.
    Third, the Commission has failed to provide clarity on the 
process for addressing the comparability determinations that it 
declined to undertake at this time. The Notices only state that the 
Commission may address these requests in a separate notice at a 
later date given further developments in the law and regulations of 
other jurisdictions. To promote certainty in the financial markets, 
the Commission must provide a clear path forward for market 
participants and foreign regulators.
    The following steps would be a better approach: (1) The 
Commission should extend the Exemptive Order to allow foreign 
regulators to further implement their regulatory regimes and 
coordinate with them to implement a harmonized substituted 
compliance process; (2) the Commission should implement a flexible, 
outcomes-based approach to the substituted compliance process and 
apply it similarly to all jurisdictions; and (3) the Commission 
should work closely with our fellow regulators to expeditiously 
implement MOUs that resolve regulatory differences and address 
regulatory oversight issues.

Conclusion

    While I support the narrow comparability determinations that the 
Commission has made, it was my hope that the Commission would work 
with foreign regulators to implement a substituted compliance 
process that would increase the global harmonization effort. I am 
disappointed that the Commission has failed to implement such a 
process.
    I do believe that in the longer term, the swaps regulations of 
the major jurisdictions will converge. At this time, however, the 
Commission's comparability determinations have done little to 
alleviate the burden of regulatory uncertainty and duplicative 
compliance with both U.S. and foreign regulations.
    The G-20 process delineated and put in place the swaps market 
reforms in G-20 member nations. It is then no surprise that the 
Commission must learn to coordinate with foreign regulators to 
minimize confusion and disruption in bringing much needed clarity to 
the swaps market. For all these shortcomings, I respectfully dissent 
from the Commission's approval of the Notices.

[FR Doc. 2013-30979 Filed 12-26-13; 8:45 am]
BILLING CODE 6351-01-P