[Federal Register Volume 81, Number 179 (Thursday, September 15, 2016)]
[Rules and Regulations]
[Pages 63376-63395]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-22045]


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COMMODITY FUTURES TRADING COMMISSION

17 CFR Chapter I


Comparability Determination for Japan: Margin Requirements for 
Uncleared Swaps for Swap Dealers and Major Swap Participants

AGENCY: Commodity Futures Trading Commission.

ACTION: Notice of comparability determination for margin requirements 
for uncleared swaps under the laws of Japan.

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SUMMARY: The following is the analysis and determination of the 
Commodity Futures Trading Commission (``Commission'') regarding a 
request by the Japan Financial Services Agency (``JFSA'') that the 
Commission determine that laws and regulations applicable in Japan 
provide a sufficient basis for an affirmative finding of comparability 
with respect to margin requirements for uncleared swaps applicable to 
certain swap dealers (``SDs'') and major swap participants (``MSPs'') 
registered with the Commission. As discussed in detail herein, with one 
exception, the Commission has found the margin requirements for 
uncleared swaps under the laws and regulations of Japan comparable to 
those under the Commodity Exchange Act (``CEA'') and Commission 
regulations.

DATES: This determination is effective September 15, 2016.

FOR FURTHER INFORMATION CONTACT: Eileen T. Flaherty, Director, 202-418-
5326, [email protected], or Frank N. Fisanich, Chief Counsel, 202-418-
5949, [email protected], Division of Swap Dealer and Intermediary 
Oversight, Commodity Futures Trading Commission, Three Lafayette 
Centre, 1155 21st Street NW., Washington, DC 20581.

SUPPLEMENTARY INFORMATION:

I. Introduction

    Pursuant to section 4s(e) of the CEA,\1\ the Commission is required 
to promulgate margin requirements for uncleared swaps applicable to 
each SD and MSP for which there is no Prudential Regulator 
(collectively, ``Covered Swap Entities'' or ``CSEs'').\2\ The 
Commission published final margin requirements for such CSEs in January 
2016 (the ``Final Margin Rule'').\3\
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    \1\ 7 U.S.C. 1 et. seq.
    \2\ See 7 U.S.C. 6s(e)(1)(B). SDs and MSPs for which there is a 
Prudential Regulator must meet the margin requirements for uncleared 
swaps established by the applicable Prudential Regulator. 7 U.S.C. 
6s(e)(1)(A). See also 7 U.S.C. 1a(39) (defining the term 
``Prudential Regulator'' to include the Board of Governors of the 
Federal Reserve System; the Office of the Comptroller of the 
Currency; the Federal Deposit Insurance Corporation; the Farm Credit 
Administration; and the Federal Housing Finance Agency). The 
Prudential Regulators published final margin requirements in 
November 2015. See Margin and Capital Requirements for Covered Swap 
Entities, 80 FR 74840 (Nov. 30, 2015) (``Prudential Regulators' 
Final Margin Rule'').
    \3\ See Margin Requirements for Uncleared Swaps for Swap Dealers 
and Major Swap Participants, 81 FR 636 (Jan. 6, 2016). The Margin 
Rule, which became effective April 1, 2016, is codified in part 23 
of the Commission's regulations. See 17 CFR 23.150 through 23.159, 
and 23.161. The Commission's regulations are found in chapter I of 
Title 17 of the Code of Federal Regulations, 17 CFR 1 et. seq.
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    Subsequently, on May 31, 2016, the Commission published in the 
Federal Register its final rule with respect to the cross-border 
application of the Commission's margin requirements for uncleared swaps 
applicable to CSEs (hereinafter, the ``Cross-Border Margin Rule'').\4\ 
The Cross-Border Margin Rule sets out the circumstances under which a 
CSE is allowed to satisfy the requirements under the Margin Rule by 
complying with comparable foreign margin requirements (``substituted 
compliance''); offers certain CSEs a limited exclusion from the 
Commission's margin requirements; and outlined a framework for 
assessing whether a foreign jurisdiction's margin requirements are 
comparable to the Final Margin Rule (``comparability determinations''). 
The Commission promulgated the Cross-Border Margin Rule after close 
consultation with the Prudential Regulators and in light of comments 
from and discussions with market participants and foreign 
regulators.\5\
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    \4\ See Margin Requirements for Uncleared Swaps for Swap Dealers 
and Major Swap Participants--Cross-Border Application of the Margin 
Requirements, 81 FR 34818 (May 31, 2016). The Cross-Border Margin 
Rule, which became effective August 1, 2016, is codified in part 23 
of the Commission's regulations. See 17 CFR 23.160.
    \5\ In 2014, in conjunction with re-proposing its margin 
requirements, the Commission requested comment on three alternative 
approaches to the cross-border application of its margin 
requirements: (i) A transaction-level approach consistent with the 
Commission's guidance on the cross-border application of the CEA's 
swap provisions, see Interpretive Guidance and Policy Statement 
Regarding Compliance with Certain Swap Regulations, 78 FR 45292 
(July 26, 2013) (the ``Guidance''); (ii) an approach consistent with 
the Prudential Regulators' proposed cross-border framework for 
margin, see Margin and Capital Requirements for Covered Swap 
Entities, 79 FR 57348 (Sept. 24, 2014); and (iii) an entity-level 
approach that would apply margin rules on a firm-wide basis (without 
any exclusion for swaps with non-U.S. counterparties). See Margin 
Requirements for Uncleared Swaps for Swap Dealers and Major Swap 
Participants, 79 FR 59898 (Oct. 3, 2014). Following a review of 
comments received in response to this release, the Commission's 
Global Markets Advisory Committee (``GMAC'') hosted a public panel 
discussion on the cross-border application of margin requirements. 
See GMAC Meeting (May 14, 2015), transcript and webcast available at 
http://www.cftc.gov/PressRoom/Events/opaevent_gmac051415.
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    On June 17, 2016, the JFSA (the ``applicant'') submitted a request 
that the Commission determine that laws and regulations applicable in 
Japan provide a sufficient basis for an affirmative finding of 
comparability with respect to the Final Margin Rule. The applicant 
provided Commission staff with an updated submission on July 26, 2016. 
On August 18, 2016, the application was further supplemented with 
corrections and additional materials. The Commission's analysis and 
comparability determination for Japan regarding the Final Margin Rule 
is detailed below.

[[Page 63377]]

II. Cross-Border Margin Rule

A. Regulatory Objective of Margin Requirements

    The regulatory objective of the Final Margin Rule is to further the 
congressional mandate to ensure the safety and soundness of CSEs in 
order to offset the greater risk to CSEs and the financial system 
arising from the use of swaps that are not cleared.\6\ The primary 
function of margin is to protect a CSE from counterparty default, 
allowing it to absorb losses and continue to meet its obligations using 
collateral provided by the defaulting counterparty. While the 
requirement to post margin protects the counterparty in the event of 
the CSE's default, it also functions as a risk management tool, 
limiting the amount of leverage a CSE can incur by requiring that it 
have adequate eligible collateral to enter into an uncleared swap. In 
this way, margin serves as a first line of defense not only in 
protecting the CSE but in containing the amount of risk in the 
financial system as a whole, reducing the potential for contagion 
arising from uncleared swaps.\7\
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    \6\ See 7 U.S.C. 6s(e)(3)(A).
    \7\ See Capital Requirements for Swap Dealers and Major Swap 
Participants, 76 FR 27802 (May 12, 2011).
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    However, the global nature of the swap market, coupled with the 
interconnectedness of market participants, also necessitate that the 
Commission recognize the supervisory interests of foreign regulatory 
authorities and consider the impact of its choices on market efficiency 
and competition, which the Commission believes are vital to a well-
functioning global swap market.\8\ Foreign jurisdictions are at various 
stages of implementing margin reforms. To the extent that other 
jurisdictions adopt requirements with different coverage or timelines, 
the Commission's margin requirements may lead to competitive burdens 
for U.S. entities and deter non-U.S. persons from transacting with U.S. 
CSEs and their affiliates overseas.
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    \8\ In determining the extent to which the Dodd-Frank swap 
provisions apply to activities overseas, the Commission strives to 
protect U.S. interests, as determined by Congress in Title VII, and 
minimize conflicts with the laws of other jurisdictions, consistent 
with principles of international comity. See Guidance, 78 FR at 
45300-45301 (referencing the Restatement (Third) of Foreign 
Relations Law of the United States).
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B. Substituted Compliance

    To address these concerns, the Cross-Border Margin Rule provides 
that, subject to certain findings and conditions, a CSE is permitted to 
satisfy the requirements of the Final Margin Rule by instead complying 
with the margin requirements in the relevant foreign jurisdiction. This 
substituted compliance regime is intended to address the concerns 
discussed above without compromising the congressional mandate to 
protect the safety and soundness of CSEs and the stability of the U.S. 
financial system. Substituted compliance helps preserve the benefits of 
an integrated, global swap market by reducing the degree to which 
market participants will be subject to multiple sets of regulations. 
Further, substituted compliance builds on international efforts to 
develop a global margin framework.\9\
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    \9\ In October 2011, the Basel Committee on Banking Supervision 
(``BCBS'') and the International Organization of Securities 
Commissions (``IOSCO''), in consultation with the Committee on 
Payment and Settlement Systems and the Committee on Global Financial 
Systems, formed a Working Group on Margining Requirements to develop 
international standards for margin requirements for uncleared swaps. 
Representatives of 26 regulatory authorities participated, including 
the Commission. In September 2013, the WGMR published a final report 
articulating eight key principles for non-cleared derivatives margin 
rules. These principles represent the minimum standards approved by 
BCBS and IOSCO and their recommendations to the regulatory 
authorities in member jurisdictions. See BCBS/IOSCO, Margin 
requirements for non-centrally cleared derivatives (updated March 
2015) (``BCBS/IOSCO Framework''), available at http://www.bis.org/bcbs/publ/d317.pdf.
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    Pursuant to the Cross-Border Margin Rule, any CSE that is eligible 
for substituted compliance under Sec.  23.160 \10\ and any foreign 
regulatory authority that has direct supervisory authority over one or 
more CSEs and that is responsible for administering the relevant 
foreign jurisdiction's margin requirements may apply to the Commission 
for a comparability determination.\11\
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    \10\ See 17 CFR 23.160(c)(1)(i).
    \11\ See 17 CFR 23.160(c)(1)(ii).
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    The Cross-Border Margin Rule requires that applicants for a 
comparability determination provide copies of the relevant foreign 
jurisdiction's margin requirements \12\ and descriptions of their 
objectives,\13\ how they differ from the BCBS/IOSCO Framework,\14\ and 
how they address the elements of the Commission's margin 
requirements.\15\ The applicant must identify the specific legal and 
regulatory provisions of the foreign jurisdiction's margin requirements 
that correspond to each element and, if necessary, whether the relevant 
foreign jurisdiction's margin requirements do not address a particular 
element.\16\
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    \12\ See 17 CFR 23.160(c)(2)(v).
    \13\ See 17 CFR 23.160(c)(2)(i).
    \14\ See 17 CFR 23.160(c)(2)(iii). See also 17 CFR 23.160(a)(3) 
(defining ``international standards'' as based on the BCBS-ISOCO 
Framework).
    \15\ See 17 CFR 23.160(c)(2)(ii) (identifying the elements as: 
(A) The products subject to the foreign jurisdiction's margin 
requirements; (B) the entities subject to the foreign jurisdiction's 
margin requirements; (C) the treatment of inter-affiliate 
transactions; (D) the methodologies for calculating the amounts of 
initial and variation margin; (E) the process and standards for 
approving models for calculating initial and variation margin 
models; (F) the timing and manner in which initial and variation 
margin must be collected and/or paid; (G) any threshold levels or 
amounts; (H) risk management controls for the calculation of initial 
and variation margin; (I) eligible collateral for initial and 
variation margin; (J) the requirements of custodial arrangements, 
including segregation of margin and rehypothecation; (K) margin 
documentation requirements; and (L) the cross-border application of 
the foreign jurisdiction's margin regime). Section 23.160(c)(2)(ii) 
largely tracks the elements of the BCBS-IOSCO Framework but breaks 
them down into their components as appropriate to ensure ease of 
application.
    \16\ See id.
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C. Standard of Review for Comparability Determinations

    The Cross-Border Margin Rule identifies certain key factors that 
the Commission will consider in making a comparability determination. 
Specifically, the Commission will consider the scope and objectives of 
the relevant foreign jurisdiction's margin requirements; \17\ whether 
the relevant foreign jurisdiction's margin requirements achieve 
comparable outcomes to the Commission's corresponding margin 
requirements; \18\ and the ability of the relevant regulatory authority 
or authorities to supervise and enforce compliance with the relevant 
foreign jurisdiction's margin requirements.\19\
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    \17\ See 17 CFR 23.160(c)(3)(i).
    \18\ See 17 CFR 23.160(c)(3)(ii). As discussed above, the 
Commission's Final Margin Rule is based on the BCBS/IOSCO Framework; 
therefore, the Commission expects that the relevant foreign margin 
requirements would conform to such Framework at minimum in order to 
be deemed comparable to the Commission's corresponding margin 
requirements.
    \19\ See 17 CFR 23.160(c)(3)(iii). See also 17 CFR 
23.160(c)(3)(iv) (indicating the Commission would also consider any 
other relevant facts and circumstances).
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    This process reflects an outcome-based approach to assessing the 
comparability of a foreign jurisdiction's margin requirements. Instead 
of demanding strict uniformity with the Commission's margin 
requirements, the Commission evaluates the objectives and outcomes of 
the foreign margin requirements in light of foreign regulator(s)' 
supervisory and enforcement authority. Recognizing that jurisdictions 
may adopt different approaches to achieving the same outcome, the 
Commission will focus on whether the foreign jurisdiction's margin 
requirements are comparable to the Commission's in purpose and effect, 
not whether they are comparable in

[[Page 63378]]

every aspect or contain identical elements.
    In keeping with the Commission's commitment to international 
coordination on margin requirements for uncleared derivatives, the 
Commission believes that the standards it has established are fully 
consistent with the BCBS-IOSCO Framework.\20\ Accordingly, where 
relevant to the Commission's comparability analysis, the BCBS/IOSCO 
Framework is discussed to explain certain internationally agreed 
concepts and, where appropriate, used as a baseline to compare 
provisions of the Final Margin Rule with those of the foreign 
jurisdiction.
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    \20\ The Final Margin Rule was modified substantially from its 
proposed form to further align the Commission's margin requirements 
with the BCBS/IOSCO Framework and, as a result, the potential for 
conflict with foreign margin requirements should be reduced. For 
example, the Final Margin Rule raised the material swaps exposure 
level from $3 billion to the BCBS/IOSCO standard of $8 billion, 
which reduces the number of entities that must collect and post 
initial margin. See Final Margin Rule, 81 FR at 644. In addition, 
the definition of uncleared swaps was broadened to include DCOs that 
are not registered with the Commission but pursuant to Commission 
orders are permitted to clear for U.S. persons. See id. at 638. The 
Commission notes, however, that the BCBS-IOSCO Framework leaves 
certain elements open to interpretation (e.g., the definition of 
``derivative'') and expressly invites regulators to build on certain 
principles as appropriate. See, e.g., Element 4 (eligible 
collateral) (national regulators should ``develop their own list of 
eligible collateral assets based on the key principle, taking into 
account the conditions of their own markets''); Element 5 (initial 
margin) (the degree to which margin should be protected would be 
affected by ``the local bankruptcy regime, and would vary across 
jurisdictions''); Element 6 (transactions with affiliates) 
(``Transactions between a firm and its affiliates should be subject 
to appropriate regulation in a manner consistent with each 
jurisdiction's legal and regulatory framework.'').
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    The Cross-Border Margin Rule provided a detailed discussion 
regarding the facts and circumstances under which substituted 
compliance for the requirements under the Final Margin Rule would be 
available and such discussion is not repeated here. CSEs seeking to 
rely on substituted compliance based on the comparability 
determinations contained herein are responsible for determining whether 
substituted compliance is available under the Cross-Border Margin Rule 
with respect to the CSE's particular status and circumstances.

D. Conditions to Comparability Determinations

    The Cross-Border Margin Rule provides that the Commission may 
impose terms and conditions it deems appropriate in issuing a 
comparability determination.\21\ Specific terms and conditions with 
respect to margin requirements are discussed in the Commission's 
determinations detailed below.
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    \21\ See 17 CFR 23.160(c)(5).
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    As a general condition to all determinations, however, the 
Commission requires notification of any material changes to information 
submitted to the Commission by the applicant in support of a 
comparability finding, including, but not limited to, changes in the 
relevant foreign jurisdiction's supervisory or regulatory regime. The 
Commission also expects that the relevant foreign regulator will enter 
into, or will have entered into, an appropriate memorandum of 
understanding or similar arrangement with the Commission in connection 
with a comparability determination.\22\
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    \22\ Under Commission regulations 23.203 and 23.606, CSEs must 
maintain all records required by the CEA and the Commission's 
regulations in accordance with Commission regulation 1.31 and keep 
them open for inspection by representatives of the Commission, the 
United States Department of Justice, or any applicable prudential 
regulator. See 17 CFR 23.203, 23.606. The Commission further expects 
that prompt access to books and records and the ability to inspect 
and examine a non-U.S. CSE will be a condition to any comparability 
determination.
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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 \23\ of CSEs \24\ in the relevant 
jurisdictions.\25\ Further, 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.\26\
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    \23\ ``Swaps activities'' is defined in Commission regulation 
23.600(a)(7) to mean, with respect to a registrant, such 
registrant's activities related to swaps and any product used to 
hedge such swaps, including, but not limited to, futures, options, 
other swaps or security-based swaps, debt or equity securities, 
foreign currency, physical commodities, and other derivatives. The 
Commission's regulations under 17 CFR part 23 are limited in scope 
to the swaps activities of CSEs.
    \24\ No CSE that is not legally required to comply with a law or 
regulation determined to be comparable may voluntarily comply with 
such law or regulation in lieu of compliance with the CEA and the 
relevant Commission regulation. Each CSE that seeks to rely on a 
comparability determination is responsible for determining whether 
it is subject to the laws and regulations found comparable.
    \25\ 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.
    \26\ 78 FR at 45345.
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III. Margin Requirements for Swaps Activities in Japan

    As represented to the Commission by the applicant, margin 
requirements for swap activities in Japan are governed by the Financial 
Instruments and Exchange Act, No. 25 of 1948 (``FIEA''), covering 
Financial Instrument Business Operators (``FIBOs'') and Registered 
Financial Institutions (``RFIs''), which include regulated banks, 
cooperatives, insurance companies, pension funds, and investment funds. 
The Japanese Prime Minister delegated broad authority to implement 
these laws to the JFSA. Pursuant to this authority, the JFSA has 
promulgated the Cabinet Office Ordinance,\27\ Supervisory 
Guidelines,\28\ and Public Notifications.\29\
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    \27\ Cabinet Office Ordinance on Financial Instruments Business 
(Cabinet Office Ordinance No. 52 of August 6, 2007), including 
supplementary provisions (``FIB Ordinance'').
    \28\ Comprehensive Guideline for Supervision of Major Banks, 
etc., Comprehensive Guidelines for Supervision of Regional Financial 
Institutions, Comprehensive Guideline for Supervision of Cooperative 
Financial Institutions, Comprehensive Guideline for Supervision of 
Financial Instruments Business Operators, etc., Comprehensive 
Guidelines for Supervision of Insurance Companies, and Comprehensive 
Guidelines for Supervision of Trust Companies, etc. (together, 
``Supervisory Guideline'').
    \29\ JFSA Public Notification No. 15 of March 31, 2016 (``JFSA 
Public Notice No. 15''); JFSA Public Notification No. 16 of March 
31, 2016 (``JFSA Public Notice No. 16''); and JFSA Public 
Notification No. 17 of March 31, 2016 (``JFSA Public Notice No. 
17'').
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    These requirements supplement the requirements of FIEA with a more 
proscriptive direction with respect to margin requirements.\30\
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    \30\ Collectively, FIEA, FIB Ordinance, Supervisory Guideline, 
and JFSA Public Notifications are referred to herein as the ``JFSA's 
margin rules,'' ``JFSA's margin regime,'' ``JFSA's margin 
requirements'' or the ``laws of Japan.''
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    Pursuant to Article 29 of the FIEA, any person that engages in 
trade activities that constitute ``Financial Instruments Business''--
which, among other things, includes over-the-counter transactions in 
derivatives (``OTC derivatives'') or intermediary, brokerage (excluding 
brokerage for clearing of securities) or agency services therefor 
\31\--must register under the

[[Page 63379]]

FIEA as a FIBO. Banks that conduct specified activities in the course 
of trade, including OTC derivatives must register under the FIEA as 
RFIs pursuant to Article 33-2 of the FIEA. Banks registered as RFIs are 
required to comply with relevant laws and regulations for FIBOs 
regarding specified activities. Failure to comply with any relevant 
laws and regulations, Supervisory Guidelines, or Public Notifications 
would subject the applicant to potential sanctions or corrective 
measures.
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    \31\ See Article 2(8)(iv) of the FIEA.
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    All current CSEs established under the laws of Japan are registered 
in Japan as RFIs or FIBOs under the supervision of the JFSA.

IV. Comparability Analysis

    The following section describes the regulatory objective of the 
Commission's requirements with respect to margin for uncleared swaps 
imposed by the CEA and the Final Margin Rule and a description of such 
requirements. Immediately following a description of the requirement(s) 
of the Final Margin Rule for which a comparability determination was 
requested by the applicant, the Commission provides a description of 
the foreign jurisdiction's comparable laws, regulations, or rules. The 
Commission then provides a discussion of the comparability of, or 
differences between, the Final Margin Rule and the foreign 
jurisdiction's laws, regulations, or rules.

A. Objectives of Margin Requirements

1. Commission Statement of Regulatory Objectives
    The regulatory objective of the Final Margin Rule is to ensure the 
safety and soundness of CSEs in order to offset the greater risk to 
CSEs and the financial system arising from the use of swaps that are 
not cleared. The primary function of margin is to protect a CSE from 
counterparty default, allowing it to absorb losses and continue to meet 
its obligations using collateral provided by the defaulting 
counterparty. While the requirement to post margin protects the 
counterparty in the event of the CSE's default, it also functions as a 
risk management tool, limiting the amount of leverage a CSE can incur 
by requiring that it have adequate eligible collateral to enter into an 
uncleared swap. In this way, margin serves as a first line of defense 
not only in protecting the CSE but in containing the amount of risk in 
the financial system as a whole, reducing the potential for contagion 
arising from uncleared swaps.\32\
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    \32\ See Cross-Border Margin Rule, 81 FR at 34819.
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2. JFSA Statement of Regulatory Objectives
    The JFSA states that the objectives of margin requirements are the 
reduction of systemic risk and promotion of central clearing, as the 
BCBS/IOSCO Framework defines. To ensure that these objectives are 
achieved, the laws and regulations of Japan prescribe that financial 
institutions shall establish an appropriate framework for margin 
requirements, in line with the BCBS/IOSCO Framework. In addition, the 
JFSA intends to improve the risk management capabilities of financial 
institutions through its margin requirements and accordingly, JFSA's 
Supervisory Guidelines explicitly prescribe that financial institutions 
are required to establish a framework for margin requirements in order 
to manage counterparty credit risk.

B. Products Subject to Margin Requirements

    The Commission's Final Margin Rule applies only to uncleared swaps. 
Swaps are defined in section 1a(47) of the CEA \33\ and Commission 
regulations.\34\ ``Uncleared swap'' is defined for purposes of the 
Final Margin Rule in Commission regulation Sec.  23.151 to mean a swap 
that is not cleared by a registered derivatives clearing organization, 
or by a clearing organization that the Commission has exempted from 
registration by rule or order pursuant to section 5b(h) of the Act.\35\
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    \33\ 7 U.S.C. 1a(47).
    \34\ See, e.g., Sec.  1.3(xxx), 17 CFR 1.3(xxx).
    \35\ 17 CFR 23.151.
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    In Japan, the JFSA's margin rules apply to ``non-cleared OTC 
derivatives,'' which are defined to mean:

    OTC derivatives except for those cases where Financial 
Instruments Clearing Organizations (including an Interoperable 
Clearing Organization in cases where the Financial Instruments 
Clearing Organization conducts Interoperable Financial Instruments 
Obligation Assumption Business; hereinafter the same shall apply in 
paragraph (11), item (i)(c)1.) or a Foreign Financial Instruments 
Clearing Organization meets the obligation pertaining to OTC 
derivatives or cases designated by Commissioner of the Financial 
Services Agency prescribed in Article 1-18-2 of the Order for 
Enforcement of the [FIEA].\36\

    \36\ See Cabinet Order No. 321 of 1965; See also Article 
123(1)(xxi)-5 of the FIB Ordinance. ``OTC derivative'' is defined in 
Article 2(22) of FIEA to mean:
    [T]he following transactions which are conducted in neither a 
Financial Instruments Market nor a Foreign Financial Instruments 
Market (except those specified by a Cabinet Order as those for which 
it is found not to hinder the public interest or protection of 
investors when taking into account its content and other related 
factors).
    (i) Transactions wherein the parties thereto promise to deliver 
or receive Financial Instruments (excluding those listed in Article 
2(24)(v); hereinafter the same shall apply in this paragraph) or 
consideration for them at a fixed time in the future, and, when the 
resale or repurchase of the underlying Financial Instruments or 
other acts specified by a Cabinet Order is made, settlement thereof 
may be made by paying or receiving the differences;
    (ii) transactions wherein the parties thereto promise to pay or 
receive the amount of money calculated based on the Agreed Figure 
and the Actual Figure or any other similar transactions; and
    (iii) transactions wherein the parties thereto promise that one 
of the parties grants the other party an option to effect a 
transaction listed in the following items between the parties only 
by unilateral manifestation of the other party's intention, and the 
other party pays consideration for such option, or any other similar 
transactions:
    (a) Sales and purchase of Financial Instruments (excluding those 
specified in item (i)); or
    (b) any transaction listed in the preceding two items or items 
(v) to (vii).
    (iv) transactions wherein the parties thereto promise that one 
of the parties grants the other party an option to, only by 
unilateral manifestation of his/her intention, effect a transaction 
wherein the parties promise to pay or receive the amount of money 
calculated based on the difference between a figure which the 
parties have agreed in advance to use as the Agreed Figure of the 
Financial Indicator when such manifestation is made and the Actual 
Figure of the Financial Indicator at the time of such manifestation, 
and the other party pays the consideration for such option, or any 
other similar transactions;
    (v) transactions wherein the parties mutually promise that, 
using the amount the parties have agreed to as the principal, one of 
the parties will pay the amount of money calculated based on the 
rate of change in the agreed period of the interest rate, etc. of 
the Financial Instruments (excluding those listed in Article 
2(24)(iii)) or of a Financial Indicator agreed with the other party, 
and the other party will pay the amount of money calculated based on 
the rate of change in the agreed period of the interest rate, etc. 
of the Financial Instruments (excluding those listed in Article 
2(24)(iii)) or of a Financial Indicator agreed with the former party 
(including transactions wherein the parties promise that, in 
addition to the payment of such amounts, they will also pay, deliver 
or receive the amount of money or financial instruments that amounts 
to the agreed principal), or any other similar transactions;
    (vi) transactions wherein one of the parties pays money, and the 
other party, as the consideration therefor, promises to pay money in 
cases where a cause agreed by the parties in advance and listed in 
the following items occurs (including those wherein one of the 
parties promises to transfer the Financial Instruments, rights 
pertaining to the Financial Instruments or monetary claim (excluding 
claims that are Financial Instruments or rights pertaining to the 
Financial Instruments), but excluding those listed in item (ii) to 
the preceding item), or any other similar transactions; or
    (a) a cause pertaining to credit status of a juridical person or 
other similar cause as specified by a Cabinet Order; or
    (b) a cause which it is impossible or extremely difficult for 
either party to exert his/her influence on the occurrence of and 
which may have serious influence on business activities of the 
parties or other business operators as specified by a Cabinet Order 
(excluding those specified in (a)).
    (vii) in addition to transactions listed in the preceding items, 
transactions which have an economic nature similar to these 
transactions and are specified by a Cabinet Order as those for which 
it is found necessary to secure the public interest or protection of 
investors.

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[[Page 63380]]

    As represented by the applicant, however, Japan has separate 
definitions of ``OTC Derivatives'' and ``OTC Commodity Derivatives.'' 
\37\ Japan also has separate margin rules for OTC Commodity Derivatives 
that are administered by the Japan Ministry of Economy, Trade, and 
Industry (METI) and the Japan Ministry of Agriculture, Forestry, and 
Fisheries (MAFF). METI/MAFF finalized their margin requirements for 
non-cleared OTC Commodity Derivatives on August 1, 2016.\38\ While the 
margin rules for non-cleared OTC Derivatives and OTC Commodity 
Derivatives are separate, the METI/MAFF non-cleared OTC Commodity 
Derivative rules incorporate by reference the corresponding JFSA margin 
rules,\39\ and thus, for all purposes material to the determinations 
below, the METI/MAFF rules and JFSA margin rules are identical. 
Accordingly, for ease of reference, the discussion below refers only to 
the JFSA and the JFSA margin rules, but such discussion is equally 
applicable to METI/MAFF and the METI/MAFF non-cleared OTC Commodity 
Derivative margin rules. Further, CSEs may rely on the determinations 
set forth below regarding non-cleared OTC Derivatives subject to the 
JFSA margin rules equally with respect to non-cleared OTC Commodity 
Derivatives subject to the METI/MAFF margin rules.
---------------------------------------------------------------------------

    \37\ ``OTC Commodity Derivative'' is defined in Article 2, 
Paragraph 14 of the Commodity Derivatives Act (Act No. 239 of August 
5, 1950) to mean any of the following transactions not executed on 
any Commodity Market, Foreign Commodity Market, or Financial 
Instruments Exchange Market (i.e., Financial Instruments Exchange 
Markets prescribed in Article 2, paragraph (17) of the FIEA 
(excluding transactions carried out through the facilities listed in 
each of the items of Article 331 of the Commodity Derivatives Act):
    (i) Buying and selling transactions where parties agree to 
transfer between them a Commodity and the consideration therefor at 
a certain time in the future and where a resale or repurchase of the 
Commodity subject to said buying and selling can be settled by 
exchanging the difference;
    (ii) Transactions where parties agree to transfer between them 
money calculated on the basis of the difference between the Contract 
Price and the Actual Price or other transactions similar thereto;
    (iii) Transactions where parties agree to transfer between them 
money calculated on the basis of the difference between the Agreed 
Figure and the Actual Figure or other transactions similar thereto;
    (iv) Transactions where parties agree that, on the manifestation 
of intention by one of the parties, the counterparty grants said 
party a right to establish any of the following transactions between 
the parties and said party pays the consideration therefor or other 
transactions similar thereto:
    (a) Transactions set forth in item (i);
    (b) Transactions set forth in item (ii);
    (c) Transactions set forth in the previous item;
    (d) Transactions set forth in item (vi);
    (v) Transactions where parties agree that the counterparty 
grants said party a right to establish between the parties a 
transaction where parties transfer between them money calculated on 
the basis of the difference between the price agreed between the 
parties in advance as a price of a Commodity pertaining to the 
manifestation of intention by one of the parties (including a 
numerical value that expresses the price level of a Commodity and a 
numerical value calculated otherwise on the basis of the price of a 
Commodity; hereinafter the same shall apply in this item) or the 
numerical value agreed between the parties in advance as a Commodity 
Index and the actual price of said Commodity or the actual numerical 
value of said Commodity Index prevailing at the time of said 
manifestation of intention and said party pays the consideration 
therefor, or other transactions similar thereto;
    (vi) Transactions where parties mutually agree, with respect to 
a Commodity for which the volume is determined by the parties, that 
one party will pay to the counterparty money calculated on the basis 
of the rate of change in the price of said Commodity or a Commodity 
Index for a period agreed between the parties in advance and that 
the latter will pay to the former money calculated on the basis of 
the rate of change in the price of said Commodity or a Commodity 
Index for a period agreed between the parties in advance, or other 
transactions similar thereto;
    (vii) In addition to transactions listed in the preceding items, 
transactions with an economic nature similar thereto that are 
specified by Cabinet Order as those for which it is considered 
necessary to secure the public interests or protection of parties 
thereto.
    \38\ See Ministry of Agriculture, Forestry and Fisheries/
Ministry of Economy, Trade and Industry Public Notification No. 2 of 
August 1, 2016; Ordinance for Enforcement of the Commodity 
Derivatives Act (Ordinance of the Ministry of Agriculture, Forestry 
and Fisheries and the Ministry of Economy, Trade and Industry No. 3 
of February 22, 2005); Supplementary Provisions of Ordinance for 
Enforcement of the Commodity Derivatives Act No. 3 of February 22, 
2005; and Basic Supervision Guidelines of Commodity Derivatives 
Business Operators, etc.
    \39\ See id.
---------------------------------------------------------------------------

    While it is beyond the scope of this comparability determination to 
definitively map any differences between the definitions of ``swap'' 
and ``uncleared swap'' under the CEA and Commission regulations and 
Japan's definitions of ``OTC Derivative,'' ``OTC Commodity 
Derivative,'' ``non-cleared OTC Derivative,'' and ``non-cleared OTC 
Commodity Derivative,'' the Commission believes that such definitions 
largely cover the same products and instruments.
    However, because the definitions are not identical, the Commission 
recognizes the possibility that a CSE may enter into a transaction that 
is an uncleared swap as defined in the CEA and Commission regulations, 
but that is not a non-cleared OTC Derivative as defined under the laws 
of Japan. In such cases, the Final Margin Rule would apply to the 
transaction but the JFSA's margin rules would not apply and thus, 
substituted compliance would not be available. The CSE could not choose 
to comply with the JFSA's margin rules \40\ in place of the Final 
Margin Rule.
---------------------------------------------------------------------------

    \40\ Or the METI/MAFF margin rules, as discussed above.
---------------------------------------------------------------------------

    Likewise, if a transaction is a non-cleared OTC derivative as 
defined under the laws of Japan but not an uncleared swap subject to 
the Final Margin Rule, a CSE could not choose to comply with the Final 
Margin Rule pursuant to this determination. CSEs are solely responsible 
for determining whether a particular transaction is both an uncleared 
swap and a non-cleared OTC derivative before relying on substituted 
compliance under the comparability determinations set forth below.

C. Entities Subject to Margin Requirements

    As stated previously, the Commission's Final Margin Rule and Cross-
Border Margin Rule apply only to CSEs, i.e., SDs and MSPs registered 
with the Commission for which there is not a Prudential Regulator.\41\ 
Thus, only such CSEs may rely on the determinations herein for 
substituted compliance, while CSEs for which there is a Prudential 
Regulator must look to the determinations of the Prudential Regulators. 
The Commission has consulted with the Prudential Regulators in making 
these determinations.
---------------------------------------------------------------------------

    \41\ See 7 U.S.C. 6s(e)(1)(B). SDs and MSPs for which there is a 
Prudential Regulator must meet the margin requirements for uncleared 
swaps established by the applicable Prudential Regulator. 7 U.S.C. 
6s(e)(1)(A). See also 7 U.S.C. 1a(39) (defining the term 
``Prudential Regulator'' to include the Board of Governors of the 
Federal Reserve System; the Office of the Comptroller of the 
Currency; the Federal Deposit Insurance Corporation; the Farm Credit 
Administration; and the Federal Housing Finance Agency). The 
Prudential Regulators published final margin requirements in 
November 2015. See Prudential Regulators' Final Margin Rule, 80 FR 
74840 (Nov. 30, 2015).
---------------------------------------------------------------------------

    CSEs are not required to collect and/or post margin with every 
uncleared swap counterparty. Under the Final Margin Rule, the initial 
margin obligations of CSEs apply only to uncleared swaps with 
counterparties that meet the definition of ``covered counterparty'' in 
Sec.  23.151.\42\ Such definition provides that a ``covered 
counterparty'' is a counterparty that is a financial end user \43\ with 
material

[[Page 63381]]

swaps exposure \44\ or a swap entity \45\ that enters into a swap with 
a CSE. The variation margin obligations of CSEs under the Final Margin 
Rule apply more broadly. Such obligations apply to counterparties that 
are swap entities and all financial end users, not just those with 
``material swaps exposure.'' \46\
---------------------------------------------------------------------------

    \42\ See 17 CFR 23.152.
    \43\ See definition of ``Financial end user'' in 17 CFR 23.150.
    \44\ See 17 CFR 23.150, which states that ``material swaps 
exposure'' for an entity means that the entity and its margin 
affiliates have an average daily aggregate notional amount of 
uncleared swaps, uncleared security-based swaps, foreign exchange 
forwards, and foreign exchange swaps with all counterparties for 
June, July and August of the previous calendar year that exceeds $8 
billion, where such amount is calculated only for business days. An 
entity shall count the average daily aggregate notional amount of an 
uncleared swap, an uncleared security-based swap, a foreign exchange 
forward, or a foreign exchange swap between the entity and a margin 
affiliate only one time. For purposes of this calculation, an entity 
shall not count a swap that is exempt pursuant to 17 CFR 23.150(b) 
or a security-based swap that qualifies for an exemption under 
section 3C(g)(10) of the Securities Exchange Act of 1934 (15 U.S.C. 
78c-3(g)(4)) and implementing regulations or that satisfies the 
criteria in section 3C(g)(1) of the Securities Exchange Act of 1934 
(15 U.S.C. 78-c3(g)(4)) and implementing regulations.
    \45\ ``Swap entity'' is defined in 17 CFR 23.150 as a person 
that is registered with the Commission as a swap dealer or major 
swap participant pursuant to the Act.
    \46\ See 17 CFR 23.153.
---------------------------------------------------------------------------

    As represented by the JFSA, the JFSA's margin rules cover all types 
of financial institutions, such as prudentially regulated banks, 
cooperatives, securities companies, insurance companies, pension funds, 
and investment funds.\47\ However, similar to the Final Margin Rule's 
definitions of ``covered counterparty'' and ``financial end-user,'' the 
JFSA's margin regime does not apply to non-financial institutions nor 
to financial institutions below certain thresholds of activity in OTC 
derivatives.\48\ As discussed above, CSEs are financial institutions 
for purposes of the JFSA's margin rules.
---------------------------------------------------------------------------

    \47\ See FIB Ordinance Article 123(10) and (11). Specifically, 
``covered entities'' under the JFSA's margin rules include Type 1 
FIBOs, RFIs, insurance companies that are RFIs and trust accounts 
that are RFIs. Covered entities also include Shoko Chukin Bank, the 
Development Bank of Japan, Shinkin Central Bank, and the Norinchukin 
Bank. Covered entities must post and collect initial and variation 
margin to and from other covered entity counterparties.
    \48\ See FIB Ordinance, Article 123(10)(iv) and (11)(iv). In 
general, the threshold for variation margin is whether the average 
total amount of the notional principal of OTC Derivatives for a 
one[hyphen]year period from April two years before the year in which 
calculation is required (or one year if calculated in December) 
exceeds JPY 300 bn. In general, the threshold for initial margin is 
whether the average month[hyphen]end aggregate notional amount of 
non[hyphen]cleared OTC derivatives, non[hyphen]cleared OTC commodity 
derivatives, and physically[hyphen]settled FX forwards and FX swaps 
of a consolidated group (excluding inter-affiliate transactions) for 
March, April, and May one year before the year in which calculation 
is required exceeds JPY 1.1 trillion. No margin is required for OTC 
Derivatives with non-covered entities (i.e., non-financial end-
users). However, FIBOs and RFIs that fall below the threshold for 
variation margin are still required by the Supervisory Guidelines to 
establish appropriate risk management policies and procedures that 
require exchange of variation margin and appropriate documentation. 
See Supervisory Guideline Section IV--2-4(4)(i).
---------------------------------------------------------------------------

    Given the definitional differences and differences in activity 
thresholds with respect to the scope of application of the Final Margin 
Rule and the JFSA's margin requirements, the Commission notes the 
possibility that the Final Margin Rule and the JFSA's margin rules may 
not apply to every uncleared swap that a CSE may enter into with a 
Japanese counterparty. For example, it appears possible that a 
financial end user with ``material swaps exposure'' would meet the 
definition of ``covered counterparty'' under the Final Margin Rule (and 
thus the initial and variation margin requirements) while at the same 
time fall under the JFSA's OTC Derivative activity threshold and be 
subject only to variation margin requirements. It may also be possible 
that the Final Margin Rule's definition of ``financial end-user'' could 
capture an entity that is a non-financial end-user under the JFSA's 
margin regime.
    With these differences in scope in mind, the Commission reiterates 
that no CSE may rely on substituted compliance unless it and its 
transaction are subject to both the Final Margin Rule and the JFSA's 
margin rules; \49\ a CSE may not voluntarily comply with the JFSA's 
margin rules where such law does not otherwise apply. Likewise, a CSE 
that is not seeking to rely on substituted compliance should understand 
that the JFSA's margin rules may apply to its counterparty irrespective 
of the CSE's decision to comply with the Final Margin Rule.
---------------------------------------------------------------------------

    \49\ Or the METI/MAFF margin rules, as discussed above.
---------------------------------------------------------------------------

D. Treatment of Inter-Affiliate Derivative Transactions

    The BCBS/IOSCO Framework recognizes that the treatment of inter-
affiliate derivative transactions will vary between jurisdictions. 
Thus, the BCBS/IOSCO Framework does not set standards with respect to 
the treatment of inter-affiliate transactions. Rather, it recommends 
that regulators in each jurisdiction review their own legal frameworks 
and market conditions and put in place margin requirements applicable 
to inter-affiliate transactions as appropriate.\50\
---------------------------------------------------------------------------

    \50\ See BCBS/IOSCO Framework, Element 6: Treatment of 
transactions with affiliates.
---------------------------------------------------------------------------

1. Commission Requirements for Treatment of Inter-Affiliate 
Transactions
    The Commission determined through its Final Margin Rule to provide 
rules for swaps between ``margin affiliates.'' The definition of margin 
affiliates provides that a company is a margin affiliate of another 
company if: (1) Either company consolidates the other on a financial 
statement prepared in accordance with U.S. Generally Accepted 
Accounting Principles, the International Financial Reporting Standards, 
or other similar standards; (2) both companies are consolidated with a 
third company on a financial statement prepared in accordance with such 
principles or standards; or (3) for a company that is not subject to 
such principles or standards, if consolidation as described in (1) or 
(2) would have occurred if such principles or standards had 
applied.\51\
---------------------------------------------------------------------------

    \51\ See 17 CFR 23.151.
---------------------------------------------------------------------------

    With respect to swaps between margin affiliates, the Final Margin 
Rule, with one exception explained below, provides that a CSE is not 
required to collect initial margin \52\ from a margin affiliate 
provided that the CSE meets the following conditions: (i) The swaps are 
subject to a centralized risk management program that is reasonably 
designed to monitor and to manage the risks associated with the inter-
affiliate swaps; and (ii) the CSE exchanges variation margin with the 
margin affiliate.\53\
---------------------------------------------------------------------------

    \52\ ``Initial margin'' is margin exchanged to protect against a 
potential future exposure and is defined in 17 CFR 23.151 to mean 
the collateral, as calculated in accordance with 17 CFR 23.154 that 
is collected or posted in connection with one or more uncleared 
swaps.
    \53\ See 17 CFR 23.159(a).
---------------------------------------------------------------------------

    In an exception to the foregoing general rule, the Final Margin 
Rule does require CSEs to collect initial margin from non-U.S. 
affiliates that are financial end users that are not subject to 
comparable initial margin collection requirements on their own outward-
facing swaps with financial end users.\54\ This provision is an 
important anti-evasion measure. It is designed to prevent the potential 
use of affiliates to avoid collecting initial margin from third 
parties. For example, suppose that an unregistered non-U.S. affiliate 
of a CSE enters into a swap with a financial end user and does not 
collect initial margin. Suppose further that the affiliate then enters 
into a swap with the CSE. Effectively, the risk of the swap with the 
third party would have been passed to the CSE without any initial 
margin. The rule would require this affiliate to post initial margin 
with the CSE in such cases. The rule would

[[Page 63382]]

further require that the CSE collect initial margin even if the 
affiliate routed the trade through one or more other affiliates.\55\
---------------------------------------------------------------------------

    \54\ See 17 CFR 23.159(c).
    \55\ See id.
---------------------------------------------------------------------------

    The Commission has stated that its inter-affiliate initial margin 
requirement is consistent with its goal of harmonizing its margin rules 
as much as possible with the BCBS/IOSCO Framework. Such Framework, for 
example, states that the exchange of initial and variation margin by 
affiliated parties ``is not customary'' and that initial margin in 
particular ``would likely create additional liquidity demands.'' \56\ 
With an understanding that many authorities, such as those in Europe 
and Japan, are not expected to require initial margin for inter-
affiliate swaps, the Commission recognized that requiring the posting 
and collection of initial margin for inter- affiliate swaps generally 
would be likely to put CSEs at a competitive disadvantage to firms in 
other jurisdictions.
---------------------------------------------------------------------------

    \56\ See BCBS/IOSCO Framework, Element 6: Treatment of 
transactions with affiliates.
---------------------------------------------------------------------------

    The Final Margin Rule however, does require CSEs to exchange 
variation margin with affiliates that are SDs, MSPs, or financial end 
users (as is also required under the Prudential Regulators' rules).\57\ 
The Commission believes that marking open positions to market each day 
and requiring the posting or collection of variation margin reduces the 
risks of inter-affiliate swaps.
---------------------------------------------------------------------------

    \57\ See 17 CFR 23.159(b), Prudential Regulators' Final Margin 
Rule, 80 FR at 74909.
---------------------------------------------------------------------------

2. Requirement for Treatment of Inter-Affiliate Derivatives Under the 
Laws of Japan

    Under Article 123(10) and (11) of Japan's FIB Ordinance, the JFSA's 
margin requirements do not apply to OTC derivative transactions between 
counterparties that are ``Consolidated Companies'' as defined in the 
Ministry of Finance of Japan's Ordinance on Terminology, Forms, and 
Preparation Methods of Consolidated Financial Statements.\58\ Such 
``Consolidated Companies'' are defined generally in keeping with the 
Commission's definition of ``margin affiliate'' for purposes of the 
Final Margin Rule, discussed above.
---------------------------------------------------------------------------

    \58\ See Ordinance of the Ministry of Finance No. 28 of October 
30, 1976.
---------------------------------------------------------------------------

    However, in mitigation of not requiring margin between Consolidated 
Companies, the JFSA has explained that its capital requirements for 
FIBOs/RFIs apply not only on a consolidated basis but also on 
individual, non-consolidated basis. Thus, a CSE that is a FIBO/RFI is 
required to hold enough capital to cover exposures under non-cleared 
OTC derivatives to individual entities in the same consolidated group. 
Such capital requirement can be reduced if the CSE collects initial 
and/or variation margin for such inter-affiliate transactions.
    In addition to this, the JFSA has explained that its supervision of 
FIBOs/RFIs is a principles-based approach, and, in accordance with this 
approach, the JFSA's ``Guideline for Financial Conglomerates 
Supervision'' requires financial holding companies and parent companies 
to measure, monitor, and manage the risks caused by inter-affiliate 
transactions. Further, the JFSA's ``Inspection manual for financial 
holding companies'' requires financial holding companies to establish a 
robust governance framework and risk management system at a centralized 
group level, that would, in operation, require management of the risks 
caused by inter-affiliate transactions. Based on the foregoing, the 
JFSA has emphasized that it is not necessary for it to require the risk 
management procedures of FIBOs/RFIs applicable to inter-affiliate 
transactions to rely on margin requirements only. Rather, taking into 
account capital requirements and the JFSA's supervision and inspection 
programs, JFSA represents that it ensures the safety and soundness of 
FIBOs/RFIs as a whole.
3. Commission Determination
    Having compared the outcomes of the JFSA's margin requirements 
applicable to inter-affiliate derivatives to the outcomes of the 
Commission's corresponding margin requirements applicable to inter-
affiliate swaps, the Commission finds that the treatment of inter-
affiliate transactions under the Final Margin Rule and under the JFSA's 
margin requirements are not comparable.
    A CSE entering into a transaction with a consolidated affiliate 
under the Final Margin Rule would be required to exchange variation 
margin in accordance with Sec. Sec.  23.151 through 23.161, and in 
certain circumstances, collect initial margin in accordance with Sec.  
23.159(c). Where such CSE and its counterparty are also subject to the 
JFSA's margin requirements, and qualify as ``Consolidated Companies,'' 
the JFSA's margin requirements would not require the CSE to post or 
collect any form of margin.
    While not disputing the JFSA's explanation that its general 
oversight of the risk management practices of Consolidated Companies 
adequately addresses the risk of inter-affiliate transactions, the 
Commission reiterates its view that the inter-affiliate margin 
requirements are an important anti-evasion measure designed to prevent 
the potential use of affiliates to avoid collecting initial margin from 
third parties.
    For this reason, the Commission finds that the outcome under the 
JFSA's margin rules is not comparable to the outcome under the Final 
Margin Rule and accordingly CSEs must comply with the Final Margin Rule 
with respect to inter-affiliate swaps.

E. Methodologies for Calculating the Amounts of Initial and Variation 
Margin

    As an overview, the methodologies for calculating initial and 
variation margin as agreed under the BCBS/IOSCO Framework state that 
the margin collected from a counterparty should (i) be consistent 
across entities covered by the requirements and reflect the potential 
future exposure (initial margin) and current exposure (variation 
margin) associated with the particular portfolio of non-centrally 
cleared derivatives, and (ii) ensure that all counterparty risk 
exposures are covered fully with a high degree of confidence.
    With respect to the calculation of initial margin, as a minimum the 
BCBS/IOSCO Framework generally provides that:
     Initial margin requirements will not apply to 
counterparties that have less than EUR 8 billion of gross notional in 
outstanding derivatives.
     Initial margin may be subject to a EUR 50 million 
threshold applicable to a consolidated group of affiliated 
counterparties.
     All margin transfers between parties may be subject to a 
de-minimis minimum transfer amount not to exceed EUR 500,000.
     The potential future exposure of a non-centrally cleared 
derivative should reflect an extreme but plausible estimate of an 
increase in the value of the instrument that is consistent with a one-
tailed 99% confidence interval over a 10-day horizon, based on 
historical data that incorporates a period of significant financial 
stress.
     The required amount of initial margin may be calculated by 
reference to either (i) a quantitative portfolio margin model or (ii) a 
standardized margin schedule.
     When initial margin is calculated by reference to an 
initial margin model, the period of financial stress used for 
calibration should be identified and applied separately for each broad 
asset class for which portfolio margining is allowed.
     Models may be either internally developed or sourced from 
the

[[Page 63383]]

counterparties or third-party vendors but in all such cases, models 
must be approved by the appropriate supervisory authority.
     Quantitative initial margin models must be subject to an 
internal governance process that continuously assesses the value of the 
model's risk assessments, tests the model's assessments against 
realized data and experience, and validates the applicability of the 
model to the derivatives for which it is being used.
     An initial margin model may consider all of the 
derivatives that are approved for model use that are subject to a 
single legally enforceable netting agreement.
     Initial margin models may account for diversification, 
hedging, and risk offsets within well-defined asset classes such as 
currency/rates, equity, credit, or commodities, but not across such 
asset classes and provided these instruments are covered by the same 
legally enforceable netting agreement and are approved by the relevant 
supervisory authority.
     The total initial margin requirement for a portfolio 
consisting of multiple asset classes would be the sum of the initial 
margin amounts calculated for each asset class separately.
     Derivatives for which a firm faces zero counterparty risk 
require no initial margin to be collected and may be excluded from the 
initial margin calculation.
     Where a standardized initial margin schedule is 
appropriate, it should be computed by multiplying the gross notional 
size of a derivative by the standardized margin rates provided under 
the BCBS/IOSCO Framework \59\ and adjusting such amount by the ratio of 
the net current replacement cost to gross current replacement cost 
(NGR) pertaining to all derivatives in a legally enforceable netting 
set. The BCBS/IOSCO Framework provides the following standardized 
margin rates:
---------------------------------------------------------------------------

    \59\ The BCBS/IOSCO Framework provides standardized margin 
rates, as set out in the table accompanying the text.

------------------------------------------------------------------------
                                                          Initial margin
                                                            requirement
                       Asset class                        (% of notional
                                                             exposure)
------------------------------------------------------------------------
Credit: 0-2 year duration...............................               2
Credit: 2-5 year duration...............................               5
Credit 5+ year duration.................................              10
Commodity...............................................              15
Equity..................................................              15
Foreign exchange........................................               6
Interest rate: 0-2 year duration........................               1
Interest rate: 2-5 year duration........................               2
Interest rate: 5+ year duration.........................               4
Other...................................................              15
------------------------------------------------------------------------

     For a regulated entity that is already using a schedule-
based margin to satisfy requirements under its required capital regime, 
the appropriate supervisory authority may permit the use of the same 
schedule for initial margin purposes, provided that it is at least as 
conservative.
     The choice between model- and schedule-based initial 
margin calculations should be made consistently over time for all 
transactions within the same well defined asset class.
     Initial margin should be collected at the outset of a 
transaction, and collected thereafter on a routine and consistent basis 
upon changes in measured potential future exposure, such as when trades 
are added to or subtracted from the portfolio.
     In the event that a margin dispute arises, both parties 
should make all necessary and appropriate efforts, including timely 
initiation of dispute resolution protocols, to resolve the dispute and 
exchange the required amount of initial margin in a timely fashion.
    With respect to the calculation of variation margin, as a minimum 
the BCBS/IOSCO Framework generally provides that:
     The full amount necessary to fully collateralize the mark-
to-market exposure of the non-centrally cleared derivatives must be 
exchanged.
     Variation margin should be calculated and exchanged for 
derivatives subject to a single, legally enforceable netting agreement 
with sufficient frequency (e.g., daily).
     In the event that a margin dispute arises, both parties 
should make all necessary and appropriate efforts, including timely 
initiation of dispute resolution protocols, to resolve the dispute and 
exchange the required amount of variation margin in a timely fashion.
1. Commission Requirement for Calculation of Initial Margin
    In keeping with the BCBS/IOSCO Framework described above, with 
respect to the calculation of initial margin, the Commission's Final 
Margin Rule generally provides that:
     Initial margin is intended to address potential future 
exposure, i.e., in the event of a counterparty default, initial margin 
protects the non-defaulting party from the loss that may result from a 
swap or portfolio of swaps, during the period of time needed to close 
out the swap(s).\60\
---------------------------------------------------------------------------

    \60\ See Final Margin Rule, 81 FR at 683.
---------------------------------------------------------------------------

     Potential future exposure is to be an estimate of the one-
tailed 99% confidence interval for an increase in the value of the 
uncleared swap or netting portfolio of uncleared swaps due to an 
instantaneous price shock that is equivalent to a movement in all 
material underlying risk factors, including prices, rates, and spreads, 
over a holding period equal to the shorter of 10 business days or the 
maturity of the swap or netting portfolio.\61\
---------------------------------------------------------------------------

    \61\ See 17 CFR 23.154(b)(2)(i).
---------------------------------------------------------------------------

     The required amount of initial margin may be calculated by 
reference to either (i) a risk-based margin model or (ii) a table-based 
method.\62\
---------------------------------------------------------------------------

    \62\ See 17 CFR 23.154(a)(1)(i) and (ii).
---------------------------------------------------------------------------

     All data used to calibrate the initial margin model shall 
incorporate a period of significant financial stress for each broad 
asset class that is appropriate to the uncleared swaps to which the 
initial margin model is applied.\63\
---------------------------------------------------------------------------

    \63\ See 17 CFR 23.154(b)(2)(ii).
---------------------------------------------------------------------------

     CSEs shall obtain the written approval of the Commission 
or a registered futures association to use a model to calculate the 
initial margin required.\64\
---------------------------------------------------------------------------

    \64\ See 17 CFR 23.154(b)(1)(i).
---------------------------------------------------------------------------

     An initial margin model may calculate initial margin for a 
netting portfolio of uncleared swaps covered by the same eligible 
master netting agreement.\65\
---------------------------------------------------------------------------

    \65\ See 17 CFR 23.154(b)(2)(v).
---------------------------------------------------------------------------

     An initial margin model may reflect offsetting exposures, 
diversification, and other hedging benefits for uncleared swaps that 
are governed by the same eligible master netting agreement by 
incorporating empirical correlations within the following broad risk 
categories, provided the CSE validates and demonstrates the 
reasonableness of its process for modeling and measuring hedging 
benefits: Commodity, credit, equity, and foreign exchange or interest 
rate.\66\
---------------------------------------------------------------------------

    \66\ See id.
---------------------------------------------------------------------------

     Empirical correlations under an eligible master netting 
agreement may be recognized by the model within each broad risk 
category, but not across broad risk categories.\67\
---------------------------------------------------------------------------

    \67\ See id.
---------------------------------------------------------------------------

     If the initial margin model does not explicitly reflect 
offsetting exposures, diversification, and hedging benefits between 
subsets of uncleared swaps within a broad risk category, the CSE

[[Page 63384]]

shall calculate an amount of initial margin separately for each subset 
of uncleared swaps for which such relationships are explicitly 
recognized by the model and the sum of the initial margin amounts 
calculated for each subset of uncleared swaps within a broad risk 
category will be used to determine the aggregate initial margin due 
from the counterparty for the portfolio of uncleared swaps within the 
broad risk category.\68\
---------------------------------------------------------------------------

    \68\ See 17 CFR 23.154(b)(2)(vi).
---------------------------------------------------------------------------

     Where a risk-based model is not used, initial margin must 
be computed by multiplying the gross notional size of a derivative by 
the standardized margin rates provided under Sec.  23.154(c)(i) \69\ 
and adjusting such amount by the ratio of the net current replacement 
cost to gross current replacement cost (NGR) pertaining to all 
derivatives under the same eligible master netting agreement.\70\
---------------------------------------------------------------------------

    \69\ The standardized margin rates provided in 17 CFR 
23.154(c)(i) are, in all material respects, the same as those 
provided under the BCBS/IOSCO Framework. See supra note 59.
    \70\ See 17 CFR 23.154(c).
---------------------------------------------------------------------------

     A CSE shall not be deemed to have violated its obligation 
to collect or post initial margin if, inter alia, it makes timely 
initiation of dispute resolution mechanisms, including pursuant to 
Sec.  23.504(b)(4).\71\
---------------------------------------------------------------------------

    \71\ See 17 CFR 23.152(d)(2)(i).
---------------------------------------------------------------------------

2. Commission Requirements for Calculation of Variation Margin
    In keeping with the BCBS/IOSCO Framework described above, with 
respect to the calculation of variation margin, the Commission's Final 
Margin Rule generally provides that:
     Each business day, a CSE must calculate variation margin 
amounts for itself and for each counterparty that is an SD, MSP, or 
financial end-user. Such variation margin amounts must be equal to the 
cumulative mark-to-market change in value to the CSE of each uncleared 
swap, adjusted for any variation margin previously collected or posted 
with respect to that uncleared swap.\72\
---------------------------------------------------------------------------

    \72\ See 17 CFR 23.155(a).
---------------------------------------------------------------------------

     Variation margin must be calculated using methods, 
procedures, rules, and inputs that to the maximum extent practicable 
rely on recently-executed transactions, valuations provided by 
independent third parties, or other objective criteria.\73\
---------------------------------------------------------------------------

    \73\ See id.
---------------------------------------------------------------------------

     CSEs may comply with variation margin requirements on an 
aggregate basis with respect to uncleared swaps that are governed by 
the same eligible master netting agreement.\74\
---------------------------------------------------------------------------

    \74\ See 17 CFR 23.153(d)(1).
---------------------------------------------------------------------------

     A CSE shall not be deemed to have violated its obligation 
to collect or post variation margin if, inter alia, it makes timely 
initiation of dispute resolution mechanisms, including pursuant to 
Sec.  23.504(b)(4).\75\
---------------------------------------------------------------------------

    \75\ See 17 CFR 23.153(e)(2)(i).
---------------------------------------------------------------------------

3. Japan Requirements for Calculation of Initial Margin
     Potential future exposure is margin to be posted as 
deposits corresponding to a reasonable estimate of the amount of 
expenses or losses that may occur in the future with regard to non-
cleared OTC derivatives.\76\
---------------------------------------------------------------------------

    \76\ FIB Ordinance Article 123(1)(xxi)-6.
---------------------------------------------------------------------------

     In cases where potential future exposure cannot be 
calculated by a method of using a quantitative calculation model, 
FIBOs/RFIs are required to calculate potential future exposure for the 
non-cleared OTC derivatives by a method of using a standardized margin 
schedule.\77\
---------------------------------------------------------------------------

    \77\ JFSA Public Notice No. 15, Article 1(3).
---------------------------------------------------------------------------

     When calculating potential future exposure using a 
quantitative calculation model, FIBOs/RFIs shall use a one-tailed 99% 
confidence interval and set a margin period of risk for non-cleared OTC 
derivatives of not less than 10 business days.\78\
---------------------------------------------------------------------------

    \78\ JFSA Public Notice No. 15, Article 3(1).
---------------------------------------------------------------------------

     Where calculating potential future exposure by a method of 
using a quantitative calculation model, FIBOs/RFIs must use historical 
data which satisfies the following requirements for each category of 
non-cleared OTC derivatives for which any of commodity, credit, equity, 
and foreign exchange or interest rate is the major cause of changes in 
mark-to-market: (i) Based on an observation period of at least one year 
and not exceeding five years; (ii) to contain a stress period; (iii) to 
contain the latest market data; (iv) to be equally weighted; and (v) to 
be updated at least once a year.\79\
---------------------------------------------------------------------------

    \79\ JFSA Public Notice No. 15, Article 4.
---------------------------------------------------------------------------

     The quantitative calculation models of FIBOs/RFIs must 
capture non-linear risks, basis risks, and material risks that may have 
impact on the value of the exposure.\80\
---------------------------------------------------------------------------

    \80\ JFSA Public Notice No. 15, Article 5(1).
---------------------------------------------------------------------------

     FIBOs/RFIs must file notice with the JFSA of an intention 
to use a quantitative calculation model to estimate an amount of 
potential future exposure, including a description of the model's 
methodology and structure, the model's compliance with JFSA margin 
rules, and the policies and procedures of a ``model control unit''.\81\
---------------------------------------------------------------------------

    \81\ JFSA Public Notice No. 15, Article 1(2).
---------------------------------------------------------------------------

     FIBOs/RFIs must conduct back testing of the quantitative 
calculation model against changes in the mark-to-market value of non-
cleared OTC derivatives that occurred during a period equivalent to a 
holding period of not less than 10 business days.\82\
---------------------------------------------------------------------------

    \82\ JFSA Public Notice No. 15, Article 6(1)(iii).
---------------------------------------------------------------------------

     When calculating potential future exposure for non-cleared 
OTC derivatives only by a method of using a quantitative calculation 
model, FIBOs/RFIs may conduct a calculation for each master netting 
agreement meeting the definition of such as prescribed in Article 2, 
paragraph (5) of the Act on Close-out Netting of Specified Financial 
Transaction Conducted by Financial Institutions. (Act No. 108 of 
1998).\83\
---------------------------------------------------------------------------

    \83\ JFSA Public Notice No. 15, Article 2(1).
---------------------------------------------------------------------------

     Potential future exposure calculated by FIBOs/RFIs by a 
method of using a quantitative calculation model shall be the sum of 
amounts calculated for each category of transaction for which any of 
the following is the major cause of changes in mark-to-market value, 
with regard to all non-cleared OTC derivatives conducted by the FIBOs: 
Commodity, credit, equity, and foreign exchange or interest rate.\84\
---------------------------------------------------------------------------

    \84\ JFSA Public Notice No. 15, Article 3(2).
---------------------------------------------------------------------------

     FIBOs/RFIs may account for the effects of risk offsets, 
diversification, and hedging within each broad category of transactions 
for which commodity, credit, equity, and foreign exchange or interest 
rates is the major cause of changes in mark-to-market, but not across 
such risk categories.\85\
---------------------------------------------------------------------------

    \85\ JFSA Public Notice No. 15, Article 3(3).
---------------------------------------------------------------------------

     Where a quantitative calculation model is not used, FIBOs/
RFIs must compute potential future exposure by multiplying the gross 
notional size of a non-cleared OTC derivative by the standardized 
margin schedule set forth in JFSA's Public Notification No. 15 \86\ and 
adjusting such amount by the ratio of the net current replacement cost 
to gross current replacement cost (NGR) pertaining to all derivatives 
under the same master netting agreement.
---------------------------------------------------------------------------

    \86\ The standardized margin rates provide in JFSA Public 
Notification No. 15 of March 31, 2016, Article 9(2) are, in all 
material respects, the same as those provided under the BCBS/IOSCO 
Framework. See supra note 59.
---------------------------------------------------------------------------

     FIBOs/RFIs are required to have documentation with each 
uncleared OTC derivative counterparty that, among other things, 
identifies dispute resolution measures applicable to margin disputes 
for uncleared OTC derivatives.\87\
---------------------------------------------------------------------------

    \87\ See Article 37-3 of the FIEA and Article 99 of the FIB 
Ordinance.

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

[[Page 63385]]

4. Japan Requirements for Calculation of Variation Margin
     FIBOs/RFIs must calculate on each business day for each 
counterparty the total amount of the mark-to-market for non-cleared OTC 
Derivatives and the total amount of the mark-to-market of collateral 
collected or posted as variation margin with respect to the 
counterparty.\88\
---------------------------------------------------------------------------

    \88\ FIB Ordinance Article 123(1)(xxi)-5(a).
---------------------------------------------------------------------------

     FIBOs/RFIs may comply with variation margin requirements 
on an aggregate basis with respect to uncleared OTC derivatives that 
are governed by the same master netting agreement.\89\
---------------------------------------------------------------------------

    \89\ See FIB Ordinance Article 123(1)(xxi)-5(a).
---------------------------------------------------------------------------

     FIBOs/RFIs are required to have documentation with each 
uncleared OTC derivative counterparty that, among other things, 
identifies dispute resolution measures applicable to margin disputes 
for uncleared OTC derivatives.\90\
---------------------------------------------------------------------------

    \90\ See Supervisory Guideline Section IV-2-4(4)(i)(A) and 
(ii)(A).
---------------------------------------------------------------------------

5. Commission Determination
    Based on the foregoing and the representations of the applicant, 
the Commission has determined that the amounts of initial and variation 
margin calculated under the methodologies required under the JFSA's 
margin rules would be similar to those calculated under the 
methodologies required under the Final Margin Rule. Specifically, under 
the Final Margin Rule and the JFSA's margin rules:
     The definitions of initial and variation margin are 
similar, including the description of potential future exposure agreed 
under the BCBS/IOSCO Framework;
     Margin models and/or a standardized margin schedule may be 
used to calculate initial margin;
     Criteria for historical data to be used in initial margin 
models is similar;
     Initial margin models must be submitted for review by a 
regulator prior to use;
     Eligibility for netting is similar;
     Correlations may be recognized within broad risk 
categories, but not across such risk categories;
     The required method of calculating initial margin using 
standardized margin rates is essentially identical; and
     The proscribed standardized margin rates are essentially 
identical.
    Accordingly, the Commission finds that the methodologies for 
calculating the amounts of initial and variation margin for uncleared 
OTC derivatives under the laws of Japan are comparable in outcome to 
those of the Final Margin Rule.

F. Process and Standards for Approving Margin Models

    Pursuant to the BCBS/IOSCO Framework, initial margin models may be 
either internally developed or sourced from counterparties or third-
party vendors but in all such cases, models must be approved by the 
appropriate supervisory authority.\91\
---------------------------------------------------------------------------

    \91\ See BCBS/IOSCO Framework Requirement 3.3.
---------------------------------------------------------------------------

1. Commission Requirement for Margin Model Approval
    In keeping with the BCBS/IOSCO Framework, the Final Margin Rule 
generally requires:
     CSEs shall obtain the written approval of the Commission 
or a registered futures association to use a model to calculate the 
initial margin required.\92\
---------------------------------------------------------------------------

    \92\ See 17 CFR 23.154(b)(1)(i).
---------------------------------------------------------------------------

     The Commission or a registered futures association will 
approve models that demonstrate satisfaction of all of the requirements 
for an initial margin model set forth above in Section IV(E)(2), in 
addition to the requirements for annual review; \93\ control, 
oversight, and validation mechanisms; \94\ documentation; \95\ and 
escalation procedures.\96\
---------------------------------------------------------------------------

    \93\ See 17 CFR 23.154(b)(4), discussed further below.
    \94\ See 17 CFR 23.154(b)(5), discussed further below.
    \95\ See 17 CFR 23.154(b)(6), discussed further below.
    \96\ See 17 CFR 23.154(b)(7), discussed further below.
---------------------------------------------------------------------------

     CSEs must notify the Commission and the registered futures 
association in writing 60 days prior to, extending the use of an 
initial margin model to an additional product type; making any change 
to the model that would result in a material change in the CSE's 
assessment of initial margin requirements; or making any material 
change to modeling assumptions.
     The Commission or the registered futures association may 
rescind its approval, or may impose additional conditions or 
requirements if the Commission or the registered futures association 
determines, in its discretion, that a model no longer complies with the 
requirements for an initial margin model summarized above in Section 
IV(E)(2).
2. Japan Requirements for Approval of Margin Models
    In keeping with the BCBS/IOSCO Framework, the JFSA's margin rules 
generally require:
     FIBOs/RFIs must file notice with the JFSA of an intention 
to use a quantitative calculation model to estimate an amount of 
potential future exposure, including a description of the model's 
methodology and structure, the model's compliance with JFSA rules for 
use of quantitative calculation models summarized above in Section 
IV(E)(4), and the policies and procedures of a ``model control 
unit''.\97\
---------------------------------------------------------------------------

    \97\ JFSA Public Notice No. 15, Article 1(2) and Article 7. The 
requirements for a model control unit are discussed in Section IV(I) 
below.
---------------------------------------------------------------------------

     FIBOs/RFIs must notify the JFSA without delay of a change 
in any matters set out in the notice of an intention to use a 
quantitative calculation model, and any failure to comply with the JFSA 
rules for use of a quantitative calculation model summarized above in 
Section IV(E)(4).\98\
---------------------------------------------------------------------------

    \98\ See JFSA Public Notice No. 15, Article 8(1).
---------------------------------------------------------------------------

     FIBOs/RFIs must establish a proper management framework to 
use a quantitative calculation model and the JFSA supervises compliance 
with the model requirements.\99\
---------------------------------------------------------------------------

    \99\ See Supervisory Guideline Section IV-2-4(4)(ii)(C).
---------------------------------------------------------------------------

3. Commission Determination
    Based on the foregoing and the representations of the applicant, 
the Commission has determined that the requirements for submission of 
margin models to the JFSA, in the case of FIBOs/RFIs, are comparable to 
and as comprehensive as the regulatory approval requirements of the 
Final Margin Rule. Specifically, the notice of an intent to use a 
quantitative calculation model required under the JFSA's margin rules, 
prior to its use, must contain a comprehensive explanation and 
evaluation of the proposed model that is comparable in all material 
respects to the approval procedures required under the Final Margin 
Rule. While the Commission recognizes that a notice of intent to the 
JFSA is not the same as requiring a specific approval from a regulator, 
the JFSA has represented that it would use its supervisory powers to 
prohibit the use of an inadequate quantitative calculation model. In 
light of this representation by the JFSA, the Commission finds that 
such requirements under the laws of Japan are comparable to those of 
the Final Margin Rule.

G. Timing and Manner for Collection or Payment of Initial and Variation 
Margin

1. Commission Requirement for Timing and Manner for Collection or 
Payment of Initial and Variation Margin
    With respect to the timing and manner for collection or posting of

[[Page 63386]]

initial margin, the Final Margin Rule generally provides that:
     Where a CSE is required to collect initial margin, it must 
be collected on or before the business day after execution of an 
uncleared swap, and thereafter the CSE must continue to hold initial 
margin in an amount equal to or greater than the required initial 
margin amount as re-calculated each business day until such uncleared 
swap is terminated or expires.
     Where a CSE is required to post initial margin, it must be 
posted on or before the business day after execution of an uncleared 
swap, and thereafter the CSE must continue to post initial margin in an 
amount equal to or greater than the required initial margin amount as 
re-calculated each business day until such uncleared swap is terminated 
or expires.
     Required initial margin amounts must be posted and 
collected by CSEs on a gross basis (i.e., amounts to be posted may not 
be set-off against amounts to be collected from the same counterparty).
    With respect to the timing and manner for collection or posting of 
variation margin, the Final Margin Rule generally provides that:
     Where a CSE is required to collect variation margin, it 
must be collected on or before the business day after execution of an 
uncleared swap, and thereafter the CSE must continue to collect the 
required variation margin amount, if any, each business day as re-
calculated each business day until such uncleared swap is terminated or 
expires.\100\
---------------------------------------------------------------------------

    \100\ See 17 CFR 23.153(a).
---------------------------------------------------------------------------

     Where a CSE is required to post variation margin, it must 
be posted on or before the business day after execution of an uncleared 
swap, and thereafter the CSE must continue to post the required 
variation margin amount, if any, each business day as re-calculated 
each business day until such uncleared swap is terminated or 
expires.\101\
---------------------------------------------------------------------------

    \101\ See 17 CFR 23.153(b).
---------------------------------------------------------------------------

    With respect to both initial and variation margin, a CSE shall not 
be deemed to have violated its obligation to collect or post margin if, 
inter alia, it makes timely initiation of dispute resolution 
mechanisms, including pursuant to Sec.  23.504(b)(4).\102\
---------------------------------------------------------------------------

    \102\ See 17 CFR 23.153(e)(2)(i).
---------------------------------------------------------------------------

2. Japan Requirements for Timing and Manner for Collection of Initial 
and Variation Margin
    With respect to the timing and manner for collection or posting of 
initial margin, the JFSA's margin rules generally provide that:
     Initial margin must be calculated upon execution, 
termination, or modification of a non-cleared OTC derivative.\103\
---------------------------------------------------------------------------

    \103\ See FIB Ordinance Article 123(1)(xxi)-6(a). As represented 
by the JFSA, this requirement is interpreted to mean that IM shall 
be recalculated in any of the following circumstances:
    (a) A new contract is executed with a counterparty;
    (b) An existing contract with a counterparty expires;
    (c) A relationship of rights pertaining to non-cleared OTC 
derivatives is changed;
    (d) Recalibration is deemed necessary due to fluctuations of 
markets or other grounds or
    (e) One month has elapsed since the latest recalculation.
---------------------------------------------------------------------------

     Initial margin must be calculated when necessary based on 
market changes.\104\
---------------------------------------------------------------------------

    \104\ See id.
---------------------------------------------------------------------------

     In any event, initial margin must be calculated no later 
than one month after the last calculation of initial margin.\105\
---------------------------------------------------------------------------

    \105\ See id.
---------------------------------------------------------------------------

     Where FIBOs/RFIs are required to collect initial margin, 
it must call for the initial margin amount immediately after 
calculation and collect such amount as soon as practicable.\106\
---------------------------------------------------------------------------

    \106\ See FIB Ordinance Article 123(1)(xxi)-6(b) and (c).
---------------------------------------------------------------------------

     Where FIBOs/RFIs are required to post initial margin, it 
must be posted as soon as practicable after it receives a call for an 
initial margin amount.\107\
---------------------------------------------------------------------------

    \107\ See FIB Ordinance Article 123(1)(xxi)-6(f).
---------------------------------------------------------------------------

     Required initial margin amounts must be posted and 
collected by FIBOs/RFIs on a gross basis (i.e., amounts to be posted 
may not be set-off against amounts to be collected from the same 
counterparty).
    With respect to the timing and manner for collection or posting of 
variation margin, the JFSA's margin rules generally provide that:
     FIBOs/RFIs are required to calculate the variation margin 
amount each business day.\108\
---------------------------------------------------------------------------

    \108\ See FIB Ordinance Article 123(1)(xxi)-5(a).
---------------------------------------------------------------------------

     Where FIBOs/RFIs are required to collect a variation 
margin amount, it must be called for immediately and collected as soon 
as practicable.\109\
---------------------------------------------------------------------------

    \109\ See FIB Ordinance Article 123(1)(xxi)-5(b) and (c).
---------------------------------------------------------------------------

     Where FIBOs/RFIs are required to post a variation margin 
amount, it must be posted as soon as practicable.\110\
---------------------------------------------------------------------------

    \110\ See FIB Ordinance Article 123(1)(xxi)-5(d).
---------------------------------------------------------------------------

3. Commission Determination
    Having compared the JFSA's margin requirements applicable to the 
timing and manner of collection and payment of initial and variation 
margin to the Commission's corresponding margin requirements, the 
Commission finds that the JFSA's margin requirements are, despite 
apparent differences in certain respects, comparable in outcome.
    Under the Final Margin Rule, where initial margin is required, a 
CSE must calculate the amount of initial margin each business day. The 
JFSA's margin rules allow a maximum of one month between initial margin 
calculations under some circumstances. However, the JFSA has explained 
that FIBOs/RFIs that are subject to the first phase of implementation 
of the JFSA's margin rules for non-cleared OTC Derivatives (i.e., those 
with the largest notional amounts of outstanding non-cleared OTC 
Derivatives) regularly trade non-cleared OTC Derivatives. Accordingly, 
because JFSA margin rules on calculation of initial margin require 
FIBOs/RFIs to recalculate initial margin whenever transactions are 
entered, expire, or are modified, and whenever fluctuations occur in 
markets or other factors affecting the amount of initial margin, such 
FIBOs/RFIs are likely to be required to recalculate initial margin each 
business day. Only FIBOs/RFIs subject to the later phase of 
implementation that do not regularly trade non-cleared OTC Derivatives 
would not be required to recalculate initial margin each business day.
    With respect to the timing of collecting/posting margin, the Final 
Margin Rule requires CSEs to collect/post any required margin amount 
(whether initial or variation) within one business day. The JFSA's 
margin rules specify only that margin be collected or posted ``as soon 
as practicable,'' which presumably could be longer than one business 
day. However, the JFSA has represented that, as a supervisory matter, 
it would expect FIBOs/RFIs that are subject to the first phase of 
implementation of the JFSA's margin rules for non-cleared OTC 
Derivatives (i.e., those with the largest notional amounts of 
outstanding non-cleared OTC Derivatives) to collect or post margin, as 
applicable, within one business day, with some flexibility for cross-
border transactions. FIBOs/RFIs subject to the later phase of 
implementation would be expected to collect or post margin, as 
applicable, within two business days, again with some flexibility for 
cross-border transactions.
    In addition, the JFSA has represented that the timing of margin 
collection and posting will naturally shorten over a relatively brief 
period of time because the industry in Japan has committed to move 
toward T+1 settlement of financial instruments by 2018.

[[Page 63387]]

    Finally, the Commission understands that transactions in Japanese 
Government Bonds (``JGBs'') currently settle in 2 or 3 business days. 
The JFSA believes this will shorten to T+1 by 2018. However, the 
Commission is cognizant that if it does not find comparability on this 
element, JGB's may become ineligible for use as collateral whenever the 
Final Margin Rule is applicable and thus the market will lose a safe 
and highly liquid form of eligible collateral, perhaps increasing 
certain types of risk.
    Given the representations of the JFSA with respect to its 
expectations on compliance with its margin rules in practice, and the 
current settlement cycle for JGBs, the Commission finds that the 
requirements of the JFSA's rules with respect to the timing and manner 
for collection or payment of initial and variation margin are 
comparable.

H. Margin Threshold Levels or Amounts

    The BCBS/IOSCO Framework provides that initial margin could be 
subject to a threshold not to exceed EUR 50 million. The threshold is 
applied at the level of the consolidated group to which the threshold 
is being extended and is based on all non-centrally cleared derivatives 
between the two consolidated groups.
    Similarly, to alleviate operational burdens associated with the 
transfer of small amounts of margin, the BCBS/IOSCO Framework provides 
that all margin transfers between parties may be subject to a de-
minimis minimum transfer amount not to exceed EUR 500,000.
1. Commission Requirement for Margin Threshold Levels or Amounts
    In keeping with the BCBS/IOSCO Framework, with respect to margin 
threshold levels or amounts the Final Margin Rule generally provides 
that:
     CSEs may agree with their counterparties that initial 
margin may be subject to a threshold of no more than $50 million 
applicable to a consolidated group of affiliated counterparties.\111\
---------------------------------------------------------------------------

    \111\ See 17 CFR 23.154(a)(3) and definition of ``initial margin 
threshold'' in 17 CFR 23.151.
---------------------------------------------------------------------------

     CSEs are not required to collect or to post initial or 
variation margin with a counterparty until the combined amount of 
initial margin and variation margin to be collected or posted is 
greater than $500,000 (i.e., a minimum transfer amount).\112\
---------------------------------------------------------------------------

    \112\ See 17 CFR 23.152(b)(3).
---------------------------------------------------------------------------

2. Japan Requirements for Margin Threshold Levels or Amounts
    Also in keeping with the BCBS/IOSCO Framework, with respect to 
margin threshold levels or amounts, the JFSA's margin requirements 
generally provide that:
     FIBOs/RFIs may agree with their counterparties that 
initial margin may be subject to a threshold of no more than JPY 7 
billion applicable to a consolidated group of affiliated 
counterparties.\113\
---------------------------------------------------------------------------

    \113\ JFSA Public Notice No. 17, Article 3(2).
---------------------------------------------------------------------------

     FIBOs/RFIs are not required to collect or to post initial 
or variation margin with a counterparty until the combined amount of 
initial margin and variation margin to be collected or posted is 
greater than JPY 70 million (i.e., a minimum transfer amount).\114\
---------------------------------------------------------------------------

    \114\ See FIB Ordinance Article 123(1)(xxi)-5(b) and (xxi)-6(b).
---------------------------------------------------------------------------

3. Commission Determination
    Based on the foregoing and the representations of the applicant, 
the Commission has determined that the JFSA requirements for margin 
threshold levels or amounts, in the case of FIBOs/RFIs, are comparable 
to those required by the Final Margin Rule, in the case of CSEs.
    The Commission notes that at current exchange rates, JPY 7 billion 
is approximately $68 million, while JPY 70 million is approximately 
$680,000. Although these amounts are greater than those permitted by 
the Final Margin Rule, the Commission recognizes that exchange rates 
will fluctuate over time and thus the Commission finds that such 
requirements under the laws of Japan are comparable in outcome to those 
of the Final Margin Rule.

I. Risk Management Controls for the Calculation of Initial and 
Variation Margin

1. Commission Requirement for Risk Management Controls for the 
Calculation of Initial and Variation Margin
    With respect to risk management controls for the calculation of 
initial margin, the Final Margin Rule generally provides that:
     CSEs are required to have a risk management unit pursuant 
to Sec.  23.600(c)(4). Such risk management unit must include a risk 
control unit tasked with validation of a CSEs initial margin model 
prior to implementation and on an ongoing basis, including an 
evaluation of the conceptual soundness of the initial margin model, an 
ongoing monitoring process that includes verification of processes and 
benchmarking by comparing the CSE's initial margin model outputs 
(estimation of initial margin) with relevant alternative internal and 
external data sources or estimation techniques, and an outcomes 
analysis process that includes back testing the model.\115\
---------------------------------------------------------------------------

    \115\ See 17 CFR 23.154(b)(5).
---------------------------------------------------------------------------

     In accordance with Sec.  23.600(e)(2), CSEs must have an 
internal audit function independent of the business trading unit and 
the risk management unit that at least annually assesses the 
effectiveness of the controls supporting the initial margin model 
measurement systems, including the activities of the business trading 
units and risk control unit, compliance with policies and procedures, 
and calculation of the CSE's initial margin requirements under this 
part.\116\
---------------------------------------------------------------------------

    \116\ See 17 CFR 23.154(b)(5)(iv).
---------------------------------------------------------------------------

     At least annually, such internal audit function shall 
report its findings to the CSE's governing body, senior management, and 
chief compliance officer.\117\
---------------------------------------------------------------------------

    \117\ See 17 CFR 23.154(b)(5)(iv).
---------------------------------------------------------------------------

    With respect to risk management controls for the calculation of 
variation margin, the Final Margin Rule generally provides that:
     CSEs must maintain documentation setting forth the 
variation methodology with sufficient specificity to allow a 
counterparty, the Commission, a registered futures association, and any 
applicable prudential regulator to calculate a reasonable approximation 
of the margin requirement independently.
     CSEs must evaluate the reliability of its data sources at 
least annually, and make adjustments, as appropriate.
     CSEs, upon request of the Commission or a registered 
futures association, must provide further data or analysis concerning 
the variation methodology or a data source, including: The manner in 
which the methodology meets the requirements of the Final Margin Rule; 
a description of the mechanics of the methodology; the conceptual basis 
of the methodology; the empirical support for the methodology; and the 
empirical support for the assessment of the data sources.
2. Japan Requirements for Risk Management Controls for the Calculation 
of Initial and Variation Margin
    With respect to risk management controls for the calculation of 
initial margin, the JFSA's margin requirements generally provide that:
     Where FIBOs/RFIs use a quantitative calculation model to

[[Page 63388]]

calculate initial margin, it must establish a model control unit, 
independent from units that execute non-cleared OTC derivatives, 
responsible for the design and operation of a system for managing such 
model.\118\
---------------------------------------------------------------------------

    \118\ See JFSA Public Notice No. 15, Article 6(1)(i).
---------------------------------------------------------------------------

     The model control unit must document policies, control, 
and procedures for an operation of the quantitative calculation model 
(including the criteria for assessment of the quantitative calculation 
model and measures to be taken in cases where the results of the 
assessment conflict with the criteria set in advance).\119\
---------------------------------------------------------------------------

    \119\ See JFSA Public Notice No. 15, Article 6(1)(ii).
---------------------------------------------------------------------------

     The model control unit shall document procedures and 
results of back testing against changes in the mark-to-market value of 
non-cleared OTC derivatives that occurred during a period equivalent to 
a holding period of not less than 10 business days.\120\
---------------------------------------------------------------------------

    \120\ See JFSA Public Notice No. 15, Article 6(1)(iii).
---------------------------------------------------------------------------

     The model control unit shall establish procedures for 
validating a quantitative calculation model and properly revising the 
quantitative calculation model at the time of the development thereof 
and periodically thereafter, as well as in the risk event where the 
accuracy of the quantitative calculation model is impaired due to a 
material modification to the quantitative calculation model or a 
structural change in the market.\121\
---------------------------------------------------------------------------

    \121\ See JFSA Public Notice No. 15, Article 6(1)(iv).
---------------------------------------------------------------------------

     The model control unit shall confirm that a quantitative 
calculation model can be properly operated with major counterparties by 
testing the quantitative calculation model in an appropriate simulated 
portfolio.\122\
---------------------------------------------------------------------------

    \122\ See JFSA Public Notice No. 15, Article 6(1)(v).
---------------------------------------------------------------------------

     An internal audit shall be conducted in principle at least 
once a year with regard to a calculation process of potential future 
exposure.\123\
---------------------------------------------------------------------------

    \123\ See JFSA Public Notice No. 15, Article 6(1)(vi).
---------------------------------------------------------------------------

3. Commission Determination
    Based on the foregoing and the representations of the applicant, 
the Commission has determined that the JFSA requirements applicable to 
FIBOs/RFIs pertaining to risk management controls for the calculation 
of initial and variation margin are substantially the same as the 
corresponding requirements under the Final Margin Rule. Specifically, 
the Commission finds that under both the JFSA's requirements and the 
Final Margin Rule, a CSE is required to establish a unit independent of 
the trading desk that is tasked with comprehensively managing the 
entity's use of an initial margin model, including establishing 
controls and testing procedures. Accordingly, the Commission finds that 
the JFSA's requirements pertaining to risk management controls over the 
use of initial margin models are comparable in outcome to the controls 
required by the Final Margin Rule.

J. Eligible Collateral for Initial and Variation Margin

    As explained in the BCBS/IOSCO Framework, to ensure that 
counterparties can liquidate assets held as initial and variation 
margin in a reasonable amount of time to generate proceeds that could 
sufficiently protect collecting entities from losses on non-centrally 
cleared derivatives in the event of a counterparty default, assets 
collected as collateral for initial and variation margin purposes 
should be highly liquid and should, after accounting for an appropriate 
haircut, be able to hold their value in a time of financial stress. 
Such a set of eligible collateral should take into account that assets 
which are liquid in normal market conditions may rapidly become 
illiquid in times of financial stress. In addition to having good 
liquidity, eligible collateral should not be exposed to excessive 
credit, market and FX risk (including through differences between the 
currency of the collateral asset and the currency of settlement). To 
the extent that the value of the collateral is exposed to these risks, 
appropriately risk-sensitive haircuts should be applied. More 
importantly, the value of the collateral should not exhibit a 
significant correlation with the creditworthiness of the counterparty 
or the value of the underlying non-centrally cleared derivatives 
portfolio in such a way that would undermine the effectiveness of the 
protection offered by the margin collected. Accordingly, securities 
issued by the counterparty or its related entities should not be 
accepted as collateral. Accepted collateral should also be reasonably 
diversified.
1. Commission Requirement for Eligible Collateral for Initial and 
Variation Margin
    With respect to eligible collateral that may be collected or posted 
to satisfy an initial margin obligation, the Final Margin Rule 
generally provides that CSEs may collect or post: \124\
---------------------------------------------------------------------------

    \124\ See 17 CFR 23.156(a)(1).
---------------------------------------------------------------------------

     Cash denominated in a major currency, being United States 
Dollar (USD); Canadian Dollar (CAD); Euro (EUR); United Kingdom Pound 
(GBP); Japanese Yen (JPY); Swiss Franc (CHF); New Zealand Dollar (NZD); 
Australian Dollar (AUD); Swedish Kronor (SEK); Danish Kroner (DKK); 
Norwegian Krone (NOK); any other currency designated by the Commission; 
or any currency of settlement for a particular uncleared swap.
     A security that is issued by, or unconditionally 
guaranteed as to the timely payment of principal and interest by, the 
U.S. Department of Treasury.
     A security that is issued by, or unconditionally 
guaranteed as to the timely payment of principal and interest by, a 
U.S. government agency (other than the U.S. Department of Treasury) 
whose obligations are fully guaranteed by the full faith and credit of 
the U.S. government.
     A security that is issued by, or fully guaranteed as to 
the payment of principal and interest by, the European Central Bank or 
a sovereign entity that is assigned no higher than a 20 percent risk 
weight under the capital rules applicable to SDs subject to regulation 
by a prudential regulator.
     A publicly traded debt security issued by, or an asset-
backed security fully guaranteed as to the timely payment of principal 
and interest by, a U.S. Government-sponsored enterprise that is 
operating with capital support or another form of direct financial 
assistance received from the U.S. government that enables the 
repayments of the U.S. Government-sponsored enterprise's eligible 
securities.
     A security that is issued by, or fully guaranteed as to 
the payment of principal and interest by, the Bank for International 
Settlements, the International Monetary Fund, or a multilateral 
development bank as defined in Sec.  23.151.
     Other publicly-traded debt that has been deemed acceptable 
as initial margin by a prudential regulator as defined in Sec.  23.151.
     A publicly traded common equity security that is included 
in: The Standard & Poor's Composite 1500 Index or any other similar 
index of liquid and readily marketable equity securities as determined 
by the Commission, or an index that a CSE's supervisor in a foreign 
jurisdiction recognizes for purposes of including publicly traded 
common equity as initial margin under applicable regulatory policy, if 
held in that foreign jurisdiction.
     Securities in the form of redeemable securities in a 
pooled investment fund representing the security-holder's proportional 
interest in the fund's net assets and that are issued and redeemed

[[Page 63389]]

only on the basis of the market value of the fund's net assets prepared 
each business day after the security-holder makes its investment 
commitment or redemption request to the fund, if the fund's investments 
are limited to securities that are issued by, or unconditionally 
guaranteed as to the timely payment of principal and interest by, the 
U.S. Department of the Treasury, and immediately-available cash funds 
denominated in U.S. dollars; or securities denominated in a common 
currency and issued by, or fully guaranteed as to the payment of 
principal and interest by, the European Central Bank or a sovereign 
entity that is assigned no higher than a 20% risk weight under the 
capital rules applicable to SDs subject to regulation by a prudential 
regulator, and immediately-available cash funds denominated in the same 
currency; and assets of the fund may not be transferred through 
securities lending, securities borrowing, repurchase agreements, 
reverse repurchase agreements, or other means that involve the fund 
having rights to acquire the same or similar assets from the 
transferee.
     Gold.
     A CSE may not collect or post as initial margin any asset 
that is a security issued by: The CSE or a margin affiliate of the CSE 
(in the case of posting) or the counterparty or any margin affiliate of 
the counterparty (in the case of collection); a bank holding company, a 
savings and loan holding company, a U.S. intermediate holding company 
established or designated for purposes of compliance with 12 CFR 
252.153, a foreign bank, a depository institution, a market 
intermediary, a company that would be any of the foregoing if it were 
organized under the laws of the United States or any State, or a margin 
affiliate of any of the foregoing institutions; or a nonbank financial 
institution supervised by the Board of Governors of the Federal Reserve 
System under Title I of the Dodd-Frank Wall Street Reform and Consumer 
Protection Act (12 U.S.C. 5323).\125\
---------------------------------------------------------------------------

    \125\ See 17 CFR 23.156(a)(2).
---------------------------------------------------------------------------

     The value of any eligible collateral collected or posted 
to satisfy initial margin requirements must be reduced by the following 
haircuts: An 8% discount for initial margin collateral denominated in a 
currency that is not the currency of settlement for the uncleared swap, 
except for eligible types of collateral denominated in a single 
termination currency designated as payable to the non-posting 
counterparty as part of an eligible master netting agreement; and the 
discounts set forth in the following table: \126\
---------------------------------------------------------------------------

    \126\ See 17 CFR 23.156(a)(3).

                      Standardized Haircut Schedule
------------------------------------------------------------------------
 
------------------------------------------------------------------------
Cash in same currency as swap obligation................             0.0
Eligible government and related debt (e.g., central                  0.5
 bank, multilateral development bank, GSE securities
 identified in 17 CFR 23.156(a)(1)(iv)): Residual
 maturity less than one-year............................
Eligible government and related debt (e.g., central                  2.0
 bank, multilateral development bank, GSE securities
 identified in 17 CFR 23.156(a)(1)(iv)): Residual
 maturity between one and five years....................
Eligible government and related debt (e.g., central                  4.0
 bank, multilateral development bank, GSE securities
 identified in 17 CFR 23.156(a)(1)(iv)): Residual
 maturity greater than five years.......................
Eligible corporate debt (including eligible GSE debt                 1.0
 securities not identified in 17 CFR 23.156(a)(1)(iv)):
 Residual maturity less than one-year...................
Eligible corporate debt (including eligible GSE debt                 4.0
 securities not identified in 17 CFR 23.156(a)(1)(iv)):
 Residual maturity between one and five years...........
Eligible corporate debt (including eligible GSE debt                 8.0
 securities not identified in 17 CFR 23.156(a)(1)(iv)):
 Residual maturity greater than five years..............
Equities included in S&P 500 or related index...........            15.0
Equities included in S&P 1500 Composite or related index            25.0
 but not S&P 500 or related index.......................
Gold....................................................            15.0
------------------------------------------------------------------------

    With respect to eligible collateral that may be collected or posted 
to satisfy a variation margin obligation, the Final Margin Rule 
generally provides that CSEs may collect or post: \127\
---------------------------------------------------------------------------

    \127\ See 17 CFR 23.156(b)(1).
---------------------------------------------------------------------------

     With respect to uncleared swaps with an SD or MSP, only 
immediately available cash funds that are denominated in: U.S. dollars, 
another major currency (as defined in Sec.  23.151), or the currency of 
settlement of the uncleared swap.
     With respect to any other uncleared swaps for which a CSE 
is required to collect or post variation margin, any asset that is 
eligible to be posted or collected as initial margin, as described 
above.
     The value of any eligible collateral collected or posted 
to satisfy variation margin requirements must be reduced by the same 
haircuts applicable to initial margin described above.\128\
---------------------------------------------------------------------------

    \128\ See 17 CFR 23.156(b)(2).
---------------------------------------------------------------------------

    Finally, CSEs must monitor the value and eligibility of collateral 
collected and posted: \129\
---------------------------------------------------------------------------

    \129\ See 17 CFR 23.156(c).
---------------------------------------------------------------------------

     CSEs must monitor the market value and eligibility of all 
collateral collected and posted, and, to the extent that the market 
value of such collateral has declined, the CSE must promptly collect or 
post such additional eligible collateral as is necessary to maintain 
compliance with the margin requirements of Sec. Sec.  23.150 through 
23.161.
     To the extent that collateral is no longer eligible, CSEs 
must promptly collect or post sufficient eligible replacement 
collateral to comply with the margin requirements of Sec. Sec.  23.150 
through 23.161.
2. Japan Requirements for Eligible Collateral for Initial and Variation 
Margin
    With respect to eligible collateral that may be collected or posted 
to satisfy an initial or variation margin obligation, the JFSA's margin 
requirements generally provide that RFIs/FIBOS may collect or post: 
\130\
---------------------------------------------------------------------------

    \130\ See FIB Ordinance, Article 123(8) and JFSA Public Notice 
No. 16, Article 1(1).
---------------------------------------------------------------------------

     Cash.
     Debt that is issued by a central government, a central 
bank, or an international financial institution.\131\
---------------------------------------------------------------------------

    \131\ As listed in JFSA Public Notice No. 16, these are 
generally: Bank for International Settlements, International 
Monetary Fund, European Central Bank, European Community, 
International Development Banks (limited to International Bank for 
Reconstruction and Development, International Finance Corporation, 
Multilateral Investment Guarantee Agency, Asian Development Bank, 
African Development Bank, European Bank for Reconstruction and 
Development, Inter-American Development Bank, European Investment 
Bank, European Investment Fund, Nordic Investment Bank, Caribbean 
Development Bank, Islamic Development Bank, International Finance 
Facility for Immunisation and Council of Europe Development Bank), 
or a regional government, Japan Finance Organization for 
Municipalities or a government agency in Japan.

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

[[Page 63390]]

     Debt that is issued by any other entity (excluding 
securitizations) with certain high level credit risk ratings, but 
excluding debt issued by a counterparty or any of its consolidated 
affiliates.
     Equity securities of issuers included in the major equity 
index of certain designated countries, but excluding equity securities 
issued by a counterparty or any of its consolidated affiliates.
     Investment trust securities (excluding securities of the 
counterparty or any of its consolidated affiliates) where the trust 
invests in any of the foregoing items and its mark-to-market is 
published each business day.
    The value of any eligible collateral collected or posted to satisfy 
initial margin requirements must be reduced by the following haircuts: 
\132\
---------------------------------------------------------------------------

    \132\ See FIB Ordinance, Article 123(8) and JFSA Public 
Notification No. 16 of March 31, 2016, Article 2.

------------------------------------------------------------------------
 
------------------------------------------------------------------------
Cash...................................  0%.
Equities included in major stock         15%.
 indices.
Government and central bank debt;        0.5%, 1%, or 15%, depending on
 residual maturity of 1 year or less.     class of credit rating
                                          assigned by eligible credit
                                          rating firms.\133\
Government and central bank debt;        2%, 3%, or 15%, depending on
 residual maturity between 1 and 5        class of credit rating
 years.                                   assigned by eligible credit
                                          rating firms.
Government and central bank debt;        4%, 6%, or 15% depending on
 residual maturity of more than 5 years.  class of credit rating
                                          assigned by eligible credit
                                          rating firms.
Corporate bonds; residual maturity of 1  1% or 2% depending on class of
 year or less.                            credit rating assigned by
                                          eligible credit rating firms.
Corporate bonds; residual maturity of    4% or 6%, depending on class of
 between 1 and 5 years.                   credit rating assigned by
                                          eligible credit rating firms.
Corporate bonds; residual maturity of    8% or 12%, depending on class
 more than 5 years.                       of credit rating assigned by
                                          eligible credit rating firms.
Investment trust securities............  The highest of the above ratios
                                          applicable to investments of
                                          the trust.
------------------------------------------------------------------------

    In addition to the foregoing, under the JFSA's margin requirements, 
if the currency of a collateral asset posted for the purposes of 
initial margin is not the same as a currency specified in respect of 
the transactions, an additional 8% haircut must be applied.\134\
---------------------------------------------------------------------------

    \133\ See Bank Capital Adequacy Notice (JFSA Notice No. 19 of 
2006, as amended).
    \134\ See FIB Ordinance, Article 123(9) and JFSA Public Notice 
No. 16, Article 2(2).
---------------------------------------------------------------------------

3. Commission Determination
    Based on the foregoing and the representations of the applicant, 
the Commission observes that the JFSA's requirements pertaining to 
assets eligible for posting or collecting by FIBOs/RFIs as collateral 
for uncleared OTC derivatives are similar to the requirements of the 
Final Margin Rule, but are more stringent in some respects and less 
stringent in others.
    Specifically, the JFSA's requirements are more stringent where they 
require a larger haircut than the Final Margin Rule on government, 
central bank, and corporate debt where an issuer's credit risk ratings 
are less than the highest levels provided by credit rating firms 
regulated by the JFSA. However, the JFSA's requirements are less 
stringent where they permit the same haircut for all equities (15%) 
included in major equity indices of certain designated countries \135\ 
while the Final Margin Rule applies a 25% haircut for certain equities 
not included in the S&P 500. The JFSA's requirements are also less 
stringent with respect to the eligible collateral for variation margin 
for non-cleared OTC Derivatives between FIBOs/RFIs that are CSEs and 
FIBOs/RFIs that are SDs and MSPs (including other CSEs). The Final 
Margin Rule only permits immediately available cash funds that are 
denominated in U.S. dollars, another major currency (as defined in 
Sec.  23.151), or the currency of settlement of the uncleared swap, 
while the JFSA's requirements would permit any form of eligible 
collateral (as described above).
---------------------------------------------------------------------------

    \135\ See JFSA Public Notice No. 16, Article 1(1)(iv) and 
Article 2.
---------------------------------------------------------------------------

    In addition, the JFSA's margin rules allow eligible collateral in 
the form of securities issued by bank holding companies, savings and 
loan holding companies, certain intermediary holding companies, foreign 
banks, depository institutions, market intermediaries, and margin 
affiliates of the foregoing, all of which are prohibited by the Final 
Margin Rule.\136\
---------------------------------------------------------------------------

    \136\ See 17 CFR 23.156(a)(2).
---------------------------------------------------------------------------

    Finally, the JFSA's margin rules also do not specifically address 
requirements to monitor the eligibility of posted collateral.\137\
---------------------------------------------------------------------------

    \137\ See 17 CFR 23.156(c).
---------------------------------------------------------------------------

    While not identical, the Commission finds that the forms of 
eligible collateral for initial and variation margin under the laws of 
Japan provide comparable protections to the forms of eligible 
collateral mandated by the Final Margin Rule. Specifically, the 
Commission finds that the JFSA's margin regime ensures that assets 
collected as collateral for initial and variation margin purposes are 
highly liquid and able to hold their value in a time of financial 
stress. Because under JFSA's margin regime, a non-defaulting party 
would be able to liquidate assets held as initial and variation margin 
in a reasonable amount of time to generate proceeds that could 
sufficiently protect collecting entities from losses on uncleared swaps 
in the event of a counterparty default, the Commission finds the JFSA's 
margin regime with respect to the forms of eligible collateral for 
initial and variation margin for uncleared swaps is comparable to the 
Final Margin Rule.

K. Requirements for Custodial Arrangements, Segregation, and 
Rehypothecation

    As explained in the BCBS/IOSCO Framework, the exchange of initial 
margin on a net basis may be insufficient to protect two market 
participants with large gross derivatives exposures to each other in 
the case of one firm's failure. Thus, the gross initial margin between 
such firms should be exchanged.\138\
---------------------------------------------------------------------------

    \138\ See BCBS/IOSCO Framework, Key principle 5.
---------------------------------------------------------------------------

    Further, initial margin collected should be held in such a way as 
to ensure that (i) the margin collected is immediately available to the 
collecting party in the event of the counterparty's default, and (ii) 
the collected margin must be subject to arrangements that protect the 
posting party to the extent possible under applicable law in the

[[Page 63391]]

event that the collecting party enters bankruptcy.\139\
---------------------------------------------------------------------------

    \139\ See id.
---------------------------------------------------------------------------

1. Commission Requirement for Custodial Arrangements, Segregation, and 
Rehypothecation
    In keeping with the principles set forth in the BCBS/IOSCO 
Framework, with respect to custodial arrangements, segregation, and 
rehypothecation, the Final Margin Rule generally requires that:
     All assets posted by or collected by CSEs as initial 
margin must be held by one or more custodians that are not the CSE, the 
counterparty, or margin affiliates of the CSE or the counterparty.\140\
---------------------------------------------------------------------------

    \140\ See 17 CFR 23.157(a) and (b).
---------------------------------------------------------------------------

     CSEs must enter into an agreement with each custodian 
holding initial margin collateral that:
    [ssquf] Prohibits the custodian from rehypothecating, repledging, 
reusing, or otherwise transferring (through securities lending, 
securities borrowing, repurchase agreement, reverse repurchase 
agreement or other means) the collateral held by the custodian;
    [ssquf] May permit the custodian to hold cash collateral in a 
general deposit account with the custodian if the funds in the account 
are used to purchase an asset that qualifies as eligible collateral 
(other than equities, investment vehicle securities, or gold), such 
asset is held in compliance with this section, and such purchase takes 
place within a time period reasonably necessary to consummate such 
purchase after the cash collateral is posted as initial margin; and
    [ssquf] Is a legal, valid, binding, and enforceable agreement under 
the laws of all relevant jurisdictions including in the event of 
bankruptcy, insolvency, or a similar proceeding.\141\
---------------------------------------------------------------------------

    \141\ See 17 CFR 23.157(c)(1) and (2).
---------------------------------------------------------------------------

     A posting party may substitute any form of eligible 
collateral for posted collateral held as initial margin.\142\
---------------------------------------------------------------------------

    \142\ See 17 CFR 23.157(c)(3).
---------------------------------------------------------------------------

     A posting party may direct reinvestment of posted 
collateral held as initial margin in any form of eligible 
collateral.\143\
---------------------------------------------------------------------------

    \143\ See id.
---------------------------------------------------------------------------

     Collateral that is collected or posted as variation margin 
is not required to be held by a third party custodian and is not 
subject to restrictions on rehypothecation, repledging, or reuse.\144\
---------------------------------------------------------------------------

    \144\ See Final Margin Rule, 81 FR at 672.
---------------------------------------------------------------------------

2. Japan Requirements for Custodial Arrangements, Segregation, and 
Rehypothecation
    In keeping with the principles set forth in the BCBS/IOSCO 
Framework, with respect to custodial arrangements, segregation, and 
rehypothecation, the JFSA's margin rules generally require that:
     All assets posted by or collected by FIBOs/RFIs as initial 
margin collateral must be held in a trust or other similar structure 
(e.g., a custodial arrangement) that constitutes legal segregation or 
its equivalent.\145\
---------------------------------------------------------------------------

    \145\ See FIB Ordinance, Article 123(1)(xxi)-6(d).
---------------------------------------------------------------------------

     The segregation structure must ensure that the collateral 
will be immediately available to the collecting party in the event of 
the posting party's default, and that the collateral will be 
immediately returned to the posting party in the event of the 
collecting party's bankruptcy.\146\
---------------------------------------------------------------------------

    \146\ See id.
---------------------------------------------------------------------------

     Rehypothecation, re-pledge, or re-use of collateral posted 
as initial margin is prohibited, provided that cash can be re-used 
where conducted by a safe method and managed in accordance with the 
initial margin management requirements of the FIB Ordinance, Article 
123(1)(xxi)-6(d).\147\
---------------------------------------------------------------------------

    \147\ See FIB Ordinance Article 123(1)(xxi)-6(e).
---------------------------------------------------------------------------

     Collateral that is collected or posted as variation margin 
is not required to be held by a third party custodian and is not 
subject to restrictions on rehypothecation, repledging, or reuse.\148\
---------------------------------------------------------------------------

    \148\ See FIB Ordinance Article 123(1)(xxi)-6(d).
---------------------------------------------------------------------------

3. Commission Determination
    The Commission notes that the JFSA's margin requirements with 
respect to custodial arrangements are less stringent than those of the 
Final Margin Rule in one material respect. Under the Final Margin Rule, 
all assets posted by or collected by CSEs as initial margin must be 
held by one or more custodians that are not the CSE, the counterparty, 
or margin affiliates of the CSE or the counterparty.\149\ The JFSA's 
margin rules do not prohibit a FIBO/RFI from using an affiliated entity 
as custodian to hold initial margin collected from counterparties.
---------------------------------------------------------------------------

    \149\ See 17 CFR 23.157(a) and (b).
---------------------------------------------------------------------------

    However, the JFSA has explained that because the JFSA's margin 
rules require initial margin to be held in a trust structure under the 
Trust Act of Japan,\150\ the risk of use of an affiliated entity as 
custodian may be mitigated. A trust account under the Trust Act of 
Japan is commonly utilized when segregation of assets is required 
because property deposited to such a trust account (``trust property'') 
is legally recognized as segregated from the property of the trustor, 
the property of the trust bank, and other trust property in the trust 
account. Thus trust property in such a trust account is bankruptcy 
remote from the trustor and the trust bank.\151\ Therefore, the JFSA 
represents that initial margin held in a trust account with an 
affiliate of a FIBO/RFI mitigates any risk that such initial margin 
would be found part of the FIBO/RFI's estate or its affiliated trust 
bank's estate in the event of the bankruptcy of either.
---------------------------------------------------------------------------

    \150\ Act No. 108 of 2006 (the ``Trust Act of Japan'').
    \151\ See Trust Act of Japan, Article 23(1) stating:
    Except where based on a claim pertaining to an Obligation 
Covered by the Trust Property . . . compulsory execution, 
provisional seizure, provisional disposition or exercise of a 
security interest, or an auction . . ., or collection proceedings 
for delinquent national tax . . . is not allowed to be enforced 
against property that comes under Trust Property.
---------------------------------------------------------------------------

    Accordingly, despite the differences in required custodial 
arrangements, the Commission has determined that the JFSA's margin 
requirements applicable to FIBOs/RFIs pertaining to custodial 
arrangements, segregation, and rehypothecation are comparable to the 
corresponding requirements under the Final Margin Rule. Specifically, 
the Commission finds that under both the JFSA's requirements and the 
Final Margin Rule, a CSE/FIBO/RFI is required to segregate the initial 
margin posted by its counterparties with a third-party custodian under 
terms that constitute legal segregation, and such initial margin may 
not be rehypothecated. Accordingly, the Commission finds that the 
JFSA's requirements pertaining to custodial arrangements, segregation, 
and rehypothecation are comparable in outcome to those required by the 
Final Margin Rule.

L. Requirements for Margin Documentation

1. Commission Requirement for Margin Documentation
    With respect to requirements for documentation of margin 
arrangements, the Final Margin Rule generally provides that:
     CSEs must execute documentation with each counterparty 
that provides the CSE with the contractual right and obligation to 
exchange initial margin and variation margin in such amounts, in such 
form, and under such circumstances as are required by the Final Margin 
Rule.\152\
---------------------------------------------------------------------------

    \152\ See 17 CFR 23.158(a).

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

[[Page 63392]]

     The margin documentation must specify the methods, 
procedures, rules, inputs, and data sources to be used for determining 
the value of uncleared swaps for purposes of calculating variation 
margin; describe the methods, procedures, rules, inputs, and data 
sources to be used to calculate initial margin for uncleared swaps 
entered into between the CSE and the counterparty; and specify the 
procedures by which any disputes concerning the valuation of uncleared 
swaps, or the valuation of assets collected or posted as initial margin 
or variation margin may be resolved.\153\
---------------------------------------------------------------------------

    \153\ See 17 CFR 23.158(b).
---------------------------------------------------------------------------

2. Japan Requirements for Margin Documentation
    With respect to requirements for documentation of margin 
arrangements, the JFSA's margin rules generally provide that:
     FIBOs/RFIs must establish an appropriate agreement with 
each OTC derivative counterparty (such as an ISDA Master Agreement and 
Credit Support Annex) documenting the calculation and transfer of 
initial and variation margin.\154\
---------------------------------------------------------------------------

    \154\ See Supervisory Guidelines, Section IV-2-4(4)(i)(A) and 
(4)(ii)(A).
---------------------------------------------------------------------------

     FIBOs/RFIs are required to have documentation with each 
uncleared OTC derivative counterparty that, among other things, 
identifies dispute resolution measures applicable to margin disputes 
for uncleared OTC derivatives.\155\
---------------------------------------------------------------------------

    \155\ See Article 37-3 of the FIEA and Article 99 of the FIB 
Ordinance.
---------------------------------------------------------------------------

3. Commission Determination
    Based on the foregoing and the representations of the applicant, 
the Commission has determined that the JFSA's margin requirements 
applicable to FIBOs/RFIs pertaining to margin documentation are 
substantially the same as the margin documentation requirements under 
the Final Margin Rule. Specifically, the Commission finds that under 
both the JFSA's requirements and the Final Margin Rule, a CSE/FIBO/RFI 
is required to enter into documentation with each OTC derivative/swap 
counterparty that sets forth the method for calculating and 
transferring initial and variation margin, as well dispute resolution 
procedures. Accordingly, the Commission finds that the JFSA's 
requirements pertaining to margin documentation are comparable to those 
required by the Final Margin Rule.

M. Cross-Border Application of the Margin Regime

1. Cross-Border Application of the Final Margin Rule
    The general cross-border application of the Final Margin Rule, as 
set forth in the Cross-Border Margin Rule, is discussed in detail in 
Section II above. However, Sec.  23.160(d) and (e) of the Cross-Border 
Margin Rule also provide certain alternative requirements for uncleared 
swaps subject to the laws of a jurisdiction that does not reliably 
recognize close-out netting under a master netting agreement governing 
a swap trading relationship, or that has inherent limitations on the 
ability of a CSE to post initial margin in compliance with the 
custodial arrangement requirements \156\ of the Final Margin Rule.\157\
---------------------------------------------------------------------------

    \156\ See 17 CFR 23.157 and Section IV(K) above.
    \157\ See 17 CFR 23.160(d) and (e).
---------------------------------------------------------------------------

    Section 23.160(d) generally provides that where a jurisdiction does 
not reliably recognize close-out netting, the CSE must treat the 
uncleared swaps covered by a master netting agreement on a gross basis 
with respect to collecting initial and variation margin, but may treat 
such swaps on a net basis with respect to posting initial and variation 
margin.\158\
---------------------------------------------------------------------------

    \158\ See id.
---------------------------------------------------------------------------

    Section 23.160(e) generally provides that where certain CSEs are 
required to transact with certain counterparties in uncleared swaps 
through an establishment in a jurisdiction where, due to inherent 
limitations in legal or operational infrastructure, it is impracticable 
to require posted initial margin to be held by an independent custodian 
pursuant to Sec.  23.157, the CSE is required to collect initial margin 
in cash (as described in Sec.  23.156(a)(1)(i)) and post and collect 
variation margin in cash, but is not required to post initial margin. 
In addition, the CSE is not required to hold the initial margin 
collected with an unaffiliated custodian.\159\ Finally, the CSE may 
only enter into such affected transactions up to 5% of its total 
uncleared swap notional outstanding for each broad category of swaps 
described in Sec.  23.154(b)(2)(v).
---------------------------------------------------------------------------

    \159\ See 17 CFR 23.160(e) and 23.157(b).
---------------------------------------------------------------------------

2. Cross-Border Application of JFSA's Margin Regime
    With respect to cross-border transactions, JFSA's margin 
requirements generally provide that, where the JFSA's margin regime 
would apply to a transaction that also would require compliance with 
the margin regime of a foreign state, the Commissioner of the JFSA may 
exempt such transactions from compliance with the JFSA's margin rules 
if the Commissioner finds that such exemption is unlikely to be 
contrary to the public interest or hinder protection of investors due 
to a FIBO/RFI's compliance with the margin regime of the foreign state 
that is recognized by the JFSA to be equivalent to the JFSA's margin 
regime.\160\
---------------------------------------------------------------------------

    \160\ See FIB Ordinance, Article 123(10)(v) and (11)(v).
---------------------------------------------------------------------------

    With respect to non-cleared OTC Derivatives subject to the laws of 
a jurisdiction that does not reliably recognize close-out netting under 
a master netting agreement, the JFSA's margin regime generally provides 
that an FIBO/RFI is exempt from the requirements to post or collect 
either initial or variation margin.\161\ However, as represented by the 
JFSA, the JFSA's margin regime also requires that, with respect to such 
transactions, the FIBO/RFI must establish an appropriate risk 
management framework for the risks of such transactions that may 
include collecting margin on a gross basis.\162\
---------------------------------------------------------------------------

    \161\ See FIB Ordinance, Article 123(10)(i) and (11)(i).
    \162\ See Supervisory Guideline, IV-2-4(4)(iii)(C).
---------------------------------------------------------------------------

    With respect to non-cleared OTC Derivatives subject to the laws of 
a jurisdiction that has inherent limitations on the ability of a FIBO/
RFI to post initial margin in compliance with the custodial arrangement 
requirements under the JFSA's margin rules, as represented by the JFSA, 
the JFSA's margin rules provide that the FIBO/RFI is exempt only from 
the requirement to post initial margin, but must still comply with the 
requirement to collect initial margin and post/collect variation 
margin.\163\
---------------------------------------------------------------------------

    \163\ See FIB Ordinance 123(1)(xxi)-6(d), (e), and (f).
---------------------------------------------------------------------------

3. Commission Determination
    Based on the foregoing and the representations of the applicant, 
the Commission finds that the JFSA's margin regime with respect to its 
cross-border application is comparable in outcome to that of the Final 
Margin Rule as set forth in the Cross-Border Margin Rule.
    First, the Commission recognizes that the JFSA's margin regime 
permits substituted compliance to substantially the same extent as the 
Cross-Border Margin Rule. For example, a CSE subject to the JFSA's 
margin regime entering into a transaction with a counterparty in the 
U.S., and thus subject to the Final Margin Rule, could request the 
Commissioner of the JFSA to exempt

[[Page 63393]]

such transaction from compliance with the JFSA's margin regime upon a 
finding that the Final Margin Rule is equivalent to the JFSA's margin 
regime. Thus, where a CSE finds itself subject to both the Final Margin 
Rule and JFSA's margin regime, but not in a situation where substituted 
compliance is available under the Cross-Border Margin Regime, it could 
apply to the JFSA for a finding of equivalence.
    Second, with respect to transactions subject to the laws of a non-
netting jurisdiction, although the JFSA's margin regime exempts FIBOs/
RFIs from the otherwise applicable requirements to collect and post 
margin, the JFSA's Supervisory Guidelines still require such entities 
to establish an appropriate risk management framework to protect 
against the risks of such transactions. The Commission notes that a CSE 
is also required to have a risk management program pursuant Sec.  
23.600, and thus the Commission has the authority to inquire as to the 
adequacy of the risk management covering uncleared swaps in non-netting 
jurisdictions.
    Finally, with respect to non-cleared OTC Derivatives subject to the 
laws of a jurisdiction that has inherent limitations on the ability of 
a CSE/FIBO/RFI to post initial margin in compliance with the custodial 
arrangement requirements of the JFSA's margin rules and the Final 
Margin Rule, the Cross-Border Margin Rule would only require the CSE to 
collect (but not post) initial margin in cash (but not hold such 
initial margin with an unaffiliated custodian) \164\ and to post and 
collect variation margin in cash. The Cross-Border Margin Rule would 
also limit the CSE's ability to enter into such transactions to 5% of 
its total uncleared swap notional outstanding for each broad category 
of swap asset classes. Meanwhile, the JFSA's margin rules also exempt a 
FIBO/RFI from the requirement to post initial margin, while still 
requiring compliance with the requirement to collect initial margin and 
post/collect variation margin.\165\ The JFSA margin rule does not have 
the cash-only requirement, nor does it limit transactions to 5% of a 
FIBO/RFI's total notional of uncleared swaps.
---------------------------------------------------------------------------

    \164\ See 17 CFR 23.160(e) and 23.157(b).
    \165\ See FIB Ordinance 123(1)(xxi)-6(d), (e), and (f).
---------------------------------------------------------------------------

    Having considered the similarities and differences described above, 
the Commission finds that: (1) The availability of reciprocity of 
substituted compliance available from the JFSA makes the JFSA margin 
regime comparable in this respect to that of the Final Margin Rule and 
the Cross-Border Margin Rule; (2) the representations of the JFSA 
regarding the extensive risk management requirements applicable to 
transactions in non-netting jurisdictions makes the JFSA margin regime 
comparable in this respect to that of the Final Margin Rule and the 
Cross-Border Margin Rule; and (3) the generally similar requirements 
for collection of initial margin and collection/posting of variation 
margin for transactions in jurisdictions where compliance with 
custodial arrangements is impracticable makes the JFSA margin regime 
comparable in this respect to that of the Final Margin Rule and the 
Cross-Border Margin Rule. Accordingly, the Commission finds the cross-
border aspects of the JFSA's margin regime comparable to that of the 
Commission.

N. Supervision and Enforcement

    The Commission has a long history of regulatory cooperation with 
the JFSA, including cooperation in the regulation of registrants of the 
Commission that are also FIBOs. Thus, the Commission finds that the 
JFSA has the necessary powers to supervise, investigate, and discipline 
entities for compliance with its margin requirements and recognizes the 
JFSA's ongoing efforts to detect and deter violations of, and ensure 
compliance with, the margin requirements applicable in Japan.

V. Conclusion

    As detailed above, the Commission has considered the scope and 
objectives of the margin requirements for uncleared swaps under the 
laws of Japan,\166\ whether such margin requirements achieve comparable 
outcomes to the Commission's corresponding margin requirements; \167\ 
and the ability of the JFSA to supervise and enforce compliance with 
the margin requirements for non-cleared OTC Derivatives under the laws 
of Japan.\168\
---------------------------------------------------------------------------

    \166\ See 17 CFR 23.160(c)(3)(i).
    \167\ See 17 CFR 23.160(c)(3)(ii). As discussed above, the 
Commission's Final Margin Rule is based on the BCBS/IOSCO Framework; 
therefore, the Commission expects that the relevant foreign margin 
requirements would conform to such Framework at minimum in order to 
be deemed comparable to the Commission's corresponding margin 
requirements.
    \168\ See 17 CFR 23.160(c)(3)(iii). See also 17 CFR 
23.160(c)(3)(iv) (indicating the Commission would also consider any 
other relevant facts and circumstances).
---------------------------------------------------------------------------

    Pursuant to the foregoing process, the Commission has noted several 
differences in the margin regimes. However, the only difference for 
which the Commission has found the JFSA's margin regime to be not 
comparable is that the Final Margin Rule requires collection and 
posting of variation margin, and in a limited circumstance, collection 
of initial margin, for uncleared swaps between consolidated affiliates, 
while the JFSA's margin rules do not require any margin to be posted or 
collected on such transactions.\169\
---------------------------------------------------------------------------

    \169\ See Section IV(D) supra.
---------------------------------------------------------------------------

    Accordingly, a CSE that is subject to both the Final Margin Rule 
and the JFSA's margin rules with respect to an uncleared swap that is 
also a non-cleared OTC Derivative may rely on substituted compliance 
for all aspects of the Final Margin Rule and the Cross-Border Margin 
Rule except that such CSE must comply with the inter-affiliate margin 
requirements of Sec.  23.159 of the Final Margin Rule.

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

Appendices to Comparability Determination for Japan: Margin 
Requirements for Uncleared Swaps for Swap Dealers and Major Swap 
Participants--Commission Voting Summary, Chairman's Statement, and 
Commissioners' Statements

Appendix 1--Commission Voting Summary

    On this matter, Chairman Massad and Commissioner Giancarlo voted 
in the affirmative. Commissioner Bowen voted in the negative.

Appendix 2--Statement of Chairman Timothy G. Massad

    Today, the CFTC has furthered its commitment to international 
cooperation and harmonization.
    By issuing this comparability determination with respect to 
Japan's rules on margin for uncleared swaps, the Commission has 
ensured that a Japanese swap dealer or major swap participant 
registered with the CFTC can comply with many aspects of our margin 
rules by meeting the corresponding Japan Financial Services Agency 
(JFSA) requirements. This is an important and necessary step toward 
building a strong international regulatory framework for the over-
the-counter swaps market, which is critical to ensuring the safety 
and soundness of our own financial markets.
    It's important to remember that we are still at the early stages 
of developing this new global framework. Shortly after I took office 
two years ago, there were significant differences between our rules, 
Japan's rules, and the rules of other jurisdictions. We made 
tremendous progress bringing those rules together since that time. 
And today, we all share the same goal of a strong, international 
framework. But there are still going to be differences, and we 
understand our laws and the laws of other jurisdictions will never 
be identical.

[[Page 63394]]

    Our comparability determination reflects this understanding. In 
this instance, as in other decisions, the Commission compared our 
margin rule with each element of Japan's rules, carefully 
considering the objectives and outcomes of its specific provisions.
    We concluded that while there are differences in our margin 
regimes, Japan's margin requirements achieve comparable outcomes. 
The Commission identified only one area where we must make an 
exception to that conclusion. Our margin rule requires the 
collection and posting of variation margin and, in certain 
circumstances, the collection of initial margin for uncleared swaps 
between consolidated affiliates. However, the JFSA's margin rules do 
not require any margin to be posted or collected on such 
transactions.
    As a result, the Commission has determined that certain entities 
subject to both the CFTC's and the JFSA's margin rules with respect 
to an uncleared swap may rely on the substituted compliance made 
available under the CFTC's Cross-Border Margin Rule--with the 
exception that these entities must comply with the CFTC's inter-
affiliate margin requirements. I believe this exception is 
necessary, to help address the risk that can flow back into the 
United States from offshore activity, even when the subsidiary is 
not explicitly guaranteed by the U.S. parent. In addition, it will 
prevent the potential buildup of current exposure among affiliates.
    Let me also comment on the concerns regarding differences in our 
rules with respect to the treatment of collateral, custodial 
requirements, and swaps with counterparties in so-called ``non-
netting'' jurisdictions. I believe we should allow reliance on 
Japanese rules in these areas. That is because our goal is 
comparability in outcomes, and that goal is achieved in both cases.
    First, on the treatment of collateral, it has been noted that 
there is a difference in our rules on haircuts for equities. But it 
is relatively small. We require a haircut of 15 percent on equities 
included in the S&P 500, and 25 percent on the S&P 1500. Japan's 
rules say 15 percent on major equity indices. But we should also 
note that Japan imposes a larger discount than we do on government 
bonds and corporate debt. Our comparability process should therefore 
not insist on line-by-line identity, but rather decide what 
differences are truly significant to overall outcomes.
    Similarly, with respect to custodial requirements, I recognize 
the importance of the protection of margin deposits, especially in 
the event of the bankruptcy of a counterparty. The means that we 
require in our rule--segregation with an independent custodian--are 
not commonly used in Japan. But the Japan rules require the use of 
trust structures which achieve the same goal under Japanese law, and 
are recognized under Japanese law in bankruptcy.
    With respect to treatment of non-netting jurisdictions, our rule 
requires a swap dealer to collect initial margin on a gross basis 
from a counterparty in a jurisdiction that doesn't clearly recognize 
netting, while the JFSA rule says that the dealer must establish an 
appropriate risk management framework that may, but is not required 
to, include collection of margin. To measure outcomes, we must look 
not only at the specifics but at how the rules work in different 
scenarios. For example, Japanese swap dealers whose trades are 
guaranteed by a U.S. person must follow our rules on this issue and 
collect margin, regardless of what we decide as a matter of 
substituted compliance. And Japanese swap dealers whose trades are 
not guaranteed by a U.S. person, and who are not foreign 
consolidated subsidiaries, would not be required to follow our rule 
on this issue, regardless of what we decide as a matter of 
substituted compliance. That is because such trades are excluded 
from our rules. Japanese swap dealers who are foreign consolidated 
subsidiaries (and whose trades are not guaranteed by a U.S. person) 
would be entitled to substituted compliance, but if they engage in 
trades with counterparties in non-netting jurisdictions they would 
still be subject to the JFSA risk management requirements, and any 
parent entity swap dealer would be subject to our consolidated risk 
management requirements.
    For these reasons, I believe it is appropriate to grant 
substituted compliance without an exception on these issues.
    In making these determinations, staff also considers another 
jurisdiction's supervisory and enforcement authority in assessing 
outcomes. And here, I agree with staff's conclusion, and want to 
underscore the fact that we have a very strong and good relationship 
with the JFSA. In fact, I met with Commissioner Mori and members of 
his staff just a few months ago. There is mutual respect, and good 
communication and cooperation between our agencies. We have worked 
well together on a number of issues, including the formulation of 
margin requirements. And this determination will strengthen that 
relationship further.
    Today's decision will contribute significantly to that 
international framework and help make sure our derivatives markets 
continue to be dynamic, competitive, and drivers of economic growth. 
I want to particularly thank our staff in the Division of Swap 
Dealer and Intermediary Oversight and in the Office of the General 
Counsel for their work on this and the implementation of our margin 
rules generally. I also thank Commissioners Bowen and Giancarlo for 
their input and consideration of this determination.

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

    I thank the staff for all of its hard work on this margin 
comparability determination. However, I cannot support it. I will be 
voting no as I think it would introduce greater risk into the 
derivatives markets--the very thing that we were sent here by the 
American people to prevent.
    There are just three questions I will answer in my remarks 
today:
    1. What is a margin comparability determination and why does it 
matter?
    2. What are the problems with this particular comparability 
determination?
    3. How can we fix it?

First, what is a margin comparability determination and why does it 
matter?

    For many Americans, a margin comparability determination is 
truly a foreign concept. But it actually has great significance to 
our economy. Margin is collateral. The 2008 derivatives market was 
under-collateralized, and that is what caused it to explode and take 
our economy with it. The American people expected us, as regulators, 
to fix that by requiring sufficient collateral to address the risk. 
We have done that with our margin rule.\1\
---------------------------------------------------------------------------

    \1\ Though, as noted in my dissent, this rule was far weaker 
than it should have been due to how it dealt with inter-affiliate 
margin. See Dissenting Statement of Commissioner Sharon Y. Bowen 
Regarding Final Rule on Margin for Uncleared Swaps (Dec. 16, 2015), 
available at http://www.cftc.gov/PressRoom/SpeechesTestimony/bowenstatement121615a.
---------------------------------------------------------------------------

    In a margin comparability determination, we are defining when 
our U.S. dealers that are operating in the other jurisdiction, can 
ignore our margin rule and follow the other jurisdiction's margin 
rule. Allowing American companies to just follow one set of rules--
that of the jurisdiction they are in--makes sense when the rules are 
basically accomplishing the same thing. I am in favor of that. 
International comity, harmonization across jurisdictions, and having 
an outcomes-based approach to comparability all make sense.
    Unfortunately, that is not the scenario that we have here. While 
Japanese law has some strong similarities to our own, there are some 
areas of divergence that are significant and would allow American 
companies to do overseas what they would never be allowed to do 
here. And make no mistake; though these companies are physically 
located in Japan, their cash line runs right back to the United 
States. That risk could be borne again by American households. A 
comparability determination should not be the back door way of 
undoing or weakening our regulations and thereby incentivizing our 
companies to send their risky business to their affiliates located 
in Japan. That would not be good for our economy, Japan's economy, 
or global financial stability overall.
    This determination is doubly important because this is the first 
one and thus sets the stage for others. By adopting a weak standard 
today, we pave the way for even weaker determinations in the future. 
Moreover, we are not establishing this determination in conjunction 
with the Prudential Regulators, who oversee roughly half of U.S. 
swap dealers and are our counterparts on these issues. We have 
worked effectively with our Prudential counterparts on the 
international Working Group on Margin Requirements (WGMR) \2\ thus 
far; making this determination without harmonization amongst U.S. 
regulators is ill-advised. Differences in requirements would only 
open the door to regulatory arbitrage domestically.
---------------------------------------------------------------------------

    \2\ Working Group on Margin Requirements of the Basel Committee 
on Banking Supervision and the International Organization of 
Securities Commissions.

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

[[Page 63395]]

Second, what is the problem with this particular comparability 
determination?

     The answer: Bankruptcy. Bankruptcy is something that we do not 
like to think about, but in finance, it is something that we must 
always consider when designing deals. We know the old adage: Hope 
for the best, but plan for the worst. In my work as a law firm 
partner and Acting Chair of the Securities Investor Protection 
Corporation (SIPC), I have seen too many bankruptcies. And there are 
three key differences in our margin rule and the Japanese margin 
rule that would leave our American companies operating under 
Japanese law vulnerable. The key differences are:
    1. Where the customer money is kept. Our rules require customer 
collateral to be held by a third party--not by either one of the 
counterparties. This is a safeguard for bankruptcy. If the money is 
held by one of the counterparties, then a bankruptcy court may use 
that money to meet the counterparty's debts. Or in a stress event, 
the counterparty could potentially take the customer money to meet 
its obligation. If, however, the money is at a third party, it is 
far more likely that it will get back to the customers that provided 
it. Japanese law does not have a comparable rule. Thus, in a 
bankruptcy situation, U.S. customers may be unable to receive back 
their customer funds. This discrepancy is noted in the 
determination,\3\ but the staff states that the fact that the funds 
are segregated sufficiently mitigates against the risk. I disagree. 
In my experience with bankruptcies, I have learned that access to 
customer funds largely depends on the location of those funds. 
Third-party custodianship is an important safeguard.
---------------------------------------------------------------------------

    \3\ See ``Comparability Determination for Japan: Margin 
Requirements for Uncleared Swaps for Swap Dealers and Major Swap 
Participants,'' pp. 63-65. (``The Commission notes that the JFSA's 
[Japan Financial Services Agency] margin requirements with respect 
to custodial arrangements are less stringent than those of the Final 
Margin Rule in one material respect. Under the Final Margin Rule, 
all assets posted by or collected by CSEs as initial margin must be 
held by one or more custodians that are not the CSE, the 
counterparty, or margin affiliates of the CSE or the counterparty. 
The JFSA's margin rules do not prohibit a FIBO/RFI from using an 
affiliated entity as custodian to hold initial margin collected from 
counterparties.'').
---------------------------------------------------------------------------

    2. Transacting with counterparties in bankruptcy-risky 
jurisdictions. There are certain developing countries where there is 
little certainty that collateral will be there if there is a 
bankruptcy (non-netting jurisdictions), and/or where they do not 
adequately protect customer funds from that of the dealer (``non-
segregation jurisdictions''). Under our rules, our U.S. dealers have 
to limit the way they trade with counterparties in these bankruptcy-
vulnerable jurisdictions because we are not confident that our 
American investors will get their money back in a bankruptcy 
scenario.\4\ These safeguards vary depending on the circumstances 
and include limiting the amount of business that our dealers can do 
with these counterparties, and limiting the type of acceptable 
collateral. Japan does not have these kinds of limits on their 
dealers who deal in these bankruptcy-vulnerable jurisdictions. Thus, 
the American companies operating in Japan could potentially have an 
unlimited number of deals with counterparties in these developing 
countries. This could put some of our major American financial 
firms, and thus our economy, at risk.
---------------------------------------------------------------------------

    \4\ Id. at pp. 69-70. (``[W]ith respect to transactions subject 
to the laws of a non-netting jurisdiction JFSA's margin regime 
exempts FIBOs/RFIs from the otherwise applicable requirements to 
collect and post margin. . . . [W]ith respect to non-cleared OTC 
Derivatives subject to the laws of a jurisdiction that has inherent 
limitations on the ability of a CSE/FIBO/RFI to post initial margin 
in compliance with the custodial arrangement requirements of the 
JFSA's margin rules and the Final Margin Rule . . . [t]he JFSA 
margin rule does not have the cash-only requirement, nor does it 
limit transactions to 5% of a FIBO/RFI's total notional of uncleared 
swaps.'').
---------------------------------------------------------------------------

    3. Types of collateral allowed. There are significant 
differences in the treatment of collateral between our margin rule 
and the Japanese rule. First, while our rules limit daily variation 
margin to cash for dealer-to-dealer swaps, under Japanese law, 
variation margin could be in a number of much less liquid 
instruments. And second, while we require a 25% haircut for certain 
equities not included in the S&P 500, under Japanese law, equities 
included in major equity indices of certain designated countries 
just have a 15% blanket haircut.\5\ That means that we require our 
companies to value equities much more conservatively than under 
Japanese law. That means that in a crisis, American companies in 
Japan could be exchanging instruments that are virtually worthless 
since they cannot be readily converted to cash, thereby putting them 
in jeopardy.
---------------------------------------------------------------------------

    \5\ Id. at pp. 58-59. (``[T]he JFSA's requirements are less 
stringent where they permit the same haircut for all equities (15%) 
included in major equity indices of certain designated countries 
while the Final Margin Rule applies a 25% haircut for certain 
equities not included in the S&P 500. The JFSA's requirements are 
also less stringent with respect to the eligible collateral for 
variation margin for non-cleared OTC Derivatives between FIBOs/RFIs 
that are CSEs and FIBOs/RFIs that are SDs and MSPs (including other 
CSEs). The Final Margin Rule only permits immediately available cash 
funds that are denominated in U.S. dollars, another major currency 
(as defined in Sec.  23.151), or the currency of settlement of the 
uncleared swap, while the JFSA's requirements would permit any form 
of eligible collateral (as described above). In addition, the JFSA's 
margin rules allow eligible collateral in the form of securities 
issued by bank holding companies, savings and loan holding 
companies, certain intermediary holding companies, foreign banks, 
depository institutions, market intermediaries, and margin 
affiliates of the foregoing, all of which are prohibited by the 
Final Margin Rule. Finally, the JFSA's margin rules also do not 
specifically address requirements to monitor the eligibility of 
posted collateral.'').
---------------------------------------------------------------------------

    If these were insignificant differences, I would happily brush 
them aside and accept this comparability determination as is. But 
these issues could mean the difference between an orderly 
bankruptcy, and a disaster overseas that pulls down a significant 
American financial company, and potentially our economy.

And last, how could we have fixed it?

    Fixing this is actually rather simple. We could provide a 
partial comparability determination--our American businesses could 
follow the Japanese margin rule except in the areas above where they 
would have to follow our rule. We have already done this in the 
current draft in the area of inter-affiliate margin. We would simply 
extend the same treatment to these three areas as well.
    Unfortunately, that common sense approach was not followed here. 
And that is why I am unable to vote for it. While our two 
jurisdictions are partly comparable, there are significant areas in 
which there are material divergences. A partial comparability 
determination, as described above, would be the best way to strike 
the balance between international harmonization and protection of 
American financial companies that are located elsewhere but still 
directly linked to our economy.

Appendix 4--Statement of Commissioner J. Christopher Giancarlo

    When the Commission issued its rule addressing the cross-border 
application of margin requirements for uncleared swaps in May of 
this year \1\ I expressed my disagreement with the approach the 
Commission established as overly complex and unduly narrow.\2\ I 
also expressed my concern that the Commission's ``element-by-
element'' methodology for determining when substituted compliance 
with a foreign regulator's margin regime would be permitted is 
contrary to the principles-based, holistic analysis the Commission 
has used in the past in certain circumstances \3\ and could result 
in an impracticable patchwork of U.S. and foreign regulations for 
cross-border transactions.\4\
---------------------------------------------------------------------------

    \1\ See Margin Requirements for Uncleared Swaps for Swap Dealers 
and Major Swap Participants--Cross-Border Application of the Margin 
Requirements, 81 FR 34818, May 31, 2016.
    \2\ Id. at 34853-54.
    \3\ As I noted in my dissent, the Commission employs a 
principles-based, holistic approach for substituted compliance 
determinations under Commission Regulation 30.10 and for purposes of 
permitting direct access by U.S. customers to foreign boards of 
trade. Id. at 34853 n.5.
    \4\ Id. at 34853-54.
---------------------------------------------------------------------------

    My concerns were realized last week when Asian swaps markets 
ground to a halt amidst confusion about the application of new 
margin rules to major market participants. Once again, there were 
reports of counterparties avoiding trading with U.S. persons. I 
believe this rule's subjectivity and complexity will continue to be 
a source of regulatory uncertainty at the expense of U.S. financial 
firms, their employees and the American businesses they serve.
    I nevertheless support the comparability determination for 
Japan. In this instance, the Commission has appropriately recognized 
that certain differences between the U.S. margin regime and Japan's 
margin regime achieve comparable outcomes. Wrong approach; right 
outcome. I therefore vote in favor of the determination.

[FR Doc. 2016-22045 Filed 9-14-16; 8:45 am]
 BILLING CODE 6351-01-P