[Federal Register Volume 82, Number 209 (Tuesday, October 31, 2017)]
[Rules and Regulations]
[Pages 50309-50311]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-23660]



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Rules and Regulations
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains regulatory documents 
having general applicability and legal effect, most of which are keyed 
to and codified in the Code of Federal Regulations, which is published 
under 50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by the Superintendent of Documents. 

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Federal Register / Vol. 82, No. 209 / Tuesday, October 31, 2017 / 
Rules and Regulations

[[Page 50309]]



COMMODITY FUTURES TRADING COMMISSION

17 CFR Part 1


Order Establishing a New De Minimis Threshold Phase-In 
Termination Date

AGENCY: Commodity Futures Trading Commission.

ACTION: Order.

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SUMMARY: The Commodity Futures Trading Commission (``Commission'' or 
``CFTC'') is issuing an order (``Order''), pursuant to the Commission 
regulation establishing the de minimis exception to the swap dealer 
definition, to establish December 31, 2019 as the new de minimis 
threshold phase-in termination date.

DATES: Issued by the Commission on October 26, 2017.

FOR FURTHER INFORMATION CONTACT: Matthew Kulkin, Director, 202-418-
5213, mkulkin@cftc.gov; Erik Remmler, Deputy Director, 202-418-7630, 
eremmler@cftc.gov; or Rajal Patel, Associate Director, 202-418-5261, 
rpatel@cftc.gov, Division of Swap Dealer and Intermediary Oversight, 
Commodity Futures Trading Commission, Three Lafayette Centre, 1155 21st 
Street NW., Washington, DC 20581.

SUPPLEMENTARY INFORMATION: 

I. Background

    The Dodd-Frank Wall Street Reform and Consumer Protection Act 
(``Dodd-Frank Act'') \1\ directed the CFTC and the U.S. Securities and 
Exchange Commission to jointly further define the term ``swap dealer'' 
and to include therein a de minimis exception.\2\ The CFTC's further 
definition of swap dealer is provided in Sec.  1.3(ggg).\3\ The de 
minimis exception therein provides that a person shall not be deemed to 
be a swap dealer unless its swap dealing activity exceeds an aggregate 
gross notional amount threshold of $3 billion (measured over the prior 
12-month period), subject to a phase-in period during which the gross 
notional amount threshold is set at $8 billion.\4\ Absent further 
action by the Commission, the phase-in period is scheduled to terminate 
on December 31, 2018, at which time the de minimis threshold would 
decrease to $3 billion.\5\
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    \1\ Public Law 111-203, 124 Stat. 1376 (2010). The text of the 
Dodd-Frank Act can be accessed on the Commission's Web site, at 
www.cftc.gov.
    \2\ See Dodd-Frank Act, sections 712(d) and 721. The definition 
of ``swap dealer'' can be found in section 1a(49) of the Commodity 
Exchange Act and as further defined in Sec.  1.3(ggg). 7 U.S.C. 
1a(49) and 17 CFR 1.3(ggg). The Commodity Exchange Act is at 7 
U.S.C. 1, et seq. (2014), and is accessible on the Commission's Web 
site at www.cftc.gov.
    \3\ 17 CFR 1.3(ggg).
    \4\ See 17 CFR 1.3(ggg)(4). See also Further Definition of 
``Swap Dealer,'' ``Security-Based Swap Dealer,'' ``Major Swap 
Participant,'' ``Major Security-Based Swap Participant'' and 
``Eligible Contract Participant'', 77 FR 30596 (May 23, 2012). This 
Order does not impact the de minimis threshold for swaps with 
``special entities'' as defined in the Commodity Exchange Act, 
section 4s(h)(2)(C). 7 U.S.C. 6s(h)(2)(C).
    \5\ Order Establishing De Minimis Threshold Phase-In Termination 
Date, 81 FR 71605, 71607 (Oct. 18, 2016).
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    When Sec.  1.3(ggg) was adopted, establishing the $3 billion de 
minimis exception, the Commission explained that there was little swap 
dealing data available that could be used to guide it in setting a 
threshold level. The Commission expected that the implementation of 
swap data reporting may enable reassessment of the de minimis 
exception.\6\ Accordingly, in Sec.  1.3(ggg), the Commission directed 
CFTC staff to issue a report, after a specified period of time, on 
topics relating to the de minimis exception ``as appropriate, based on 
the availability of data and information.'' \7\ Section 1.3(ggg) 
further provides that after giving due consideration to the report and 
any associated public comment, the Commission may by order establish a 
termination date for the phase-in period or propose through rulemaking 
modifications to the de minimis exception.\8\
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    \6\ See 77 FR at 30634, 30640.
    \7\ See 17 CFR 1.3(ggg)(4)(ii)(B).
    \8\ See 17 CFR 1.3(ggg)(4)(ii)(C).
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    Staff issued for public comment the Swap Dealer De Minimis 
Exception Preliminary Report on November 18, 2015 (``Preliminary 
Report'').\9\ After consideration of the public comments received, and 
further data analysis, staff issued the Swap Dealer De Minimis 
Exception Final Staff Report \10\ on August 15, 2016 (``Final Report,'' 
and together with the Preliminary Report, the ``Staff Reports''). The 
Staff Reports analyzed the available swap data in conjunction with 
relevant policy considerations to assess alternative de minimis 
threshold levels and other potential changes to the de minimis 
exception. The Staff Reports noted that the swap market data available, 
while much improved since Sec.  1.3(ggg) was first adopted, was still 
somewhat limited in providing detailed information for assessing 
appropriate changes to the de minimis exception. For example, notional 
amounts could only be analyzed for the interest rate and credit default 
swap asset classes because, at the time, sufficient reliable notional 
data was not available for the other asset classes. As a further 
example, some of the data analyzed for the Staff Reports had 
significant quality issues. One of the ``key issues'' identified in the 
Final Report for Commission consideration was whether to delay 
reduction of the de minimis threshold to allow efforts to improve data 
quality to progress so that the Commission could better determine the 
appropriate de minimis threshold.\11\
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    \9\ Available at http://www.cftc.gov/idc/groups/public/@swaps/documents/file/dfreport_sddeminis_1115.pdf.
    \10\ Available at http://www.cftc.gov/idc/groups/public/@swaps/documents/file/dfreport_sddeminis081516.pdf.
    \11\ Final Report at 26.
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    In October 2016, the Commission issued an order, pursuant to Sec.  
1.3(ggg)(4)(ii)(C)(1), establishing December 31, 2018 as the de minimis 
threshold phase-in termination date, thereby extending the original 
phase-in period by one year (``October 2016 Order'').\12\ In the order, 
the Commission stated that the phase-in period extension provides 
additional time for further information to become available to more 
effectively reassess the de minimis exception.\13\ Given the twelve 
month lookback for calculating the swap dealing notional amount, a firm 
may need to start tracking its swap dealing activity on January 1, 2018 
to determine whether its dealing activity would require it to register 
when the phase-in period ends on December 31, 2018.
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    \12\ 81 FR 71605; 17 CFR 1.3(ggg)(4)(ii)(C)(1).
    \13\ 81 FR at 71607.

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[[Page 50310]]

II. New Phase-In Termination Date

    As contemplated by the October 2016 Order, significant strides are 
being made in updating, improving, and reassessing the available swap 
data regarding the swap marketplace in a more granular manner. Though 
this data analysis is ongoing, the Commission believes that it will in 
the near future have more detailed data analysis to inform its 
consideration of possible modifications to the de minimis 
exception.\14\ However, any such modifications, if implemented, would 
not become effective until some point in 2018, when the Commission 
completes the proposal, public comment, and final rule amendment 
process pursuant to the Administrative Procedure Act.
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    \14\ The Commission also notes that the continuing efforts by 
the Division of Market Oversight to improve data quality have 
improved data analysis capabilities.
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    This timing creates some uncertainty for currently unregistered 
swap dealers that may be subject to registration if the $3 billion de 
minimis threshold goes into effect on December 31, 2018. Such entities 
will not know what de minimis exception changes, if any, may become 
effective. Given this uncertainty, firms that might be subject to 
registration if the de minimis threshold decreases to $3 billion would 
need to start managing, and perhaps altering, their swap dealing 
activity starting in January 2018 to remain below the $3 billion 
threshold by December 31, 2018. Further, some firms might begin 
analyzing and adjusting their dealing activities prior to January 2018 
if they do not want to be subject to registration. Such changes in 
behavior could lead to reduced competition, liquidity, and efficiency 
in the swap market, which may cause disruptions for the firms and their 
swap counterparties that might be unnecessary depending on the outcome 
of the continuing assessment of the de minimis exception.
    Additionally, the Commission notes that a year's delay would 
provide additional time for the new Commissioners \15\ and the new 
Director of the Division of Swap Dealer and Intermediary Oversight, all 
of whom only joined the Commission in the last two months, to better 
familiarize themselves with the issues relevant to the de minimis 
exception and results of the swap data analysis currently underway.
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    \15\ See Brian Quintenz Sworn In as a Commissioner of the U.S. 
Commodity Futures Trading Commission (Aug. 15, 2017), http://www.cftc.gov/PressRoom/PressReleases/pr7602-17; Rostin Behnam Sworn 
In as a Commissioner of the CFTC (Sep. 6, 2017), http://www.cftc.gov/PressRoom/PressReleases/pr7610-17. Additionally, there 
are currently two additional Commission vacancies that may be filled 
soon.
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    Accordingly, the Commission believes that it is prudent to extend 
the phase-in period by one year. This extension will provide additional 
time for Commission staff to conduct data analysis regarding the de 
minimis exception, give market participants further clarity regarding 
when they will need to begin preparing for a change, if any, to the de 
minimis exception, and provide additional time for new Commissioners 
and staff to become better apprised of issues relevant to this topic.

III. Conclusion and Order

    For the reasons discussed above, and pursuant to its authority 
under Sec.  1.3(ggg)(4)(ii)(C)(1), the Commission is establishing 
December 31, 2019 as the new termination date for the de minimis 
threshold phase-in period. The Commission notes that prior to the 
termination of the phase-in period, the Commission plans to take 
further action regarding the de minimis threshold.

IV. Related Matters

A. Paperwork Reduction Act

    The Paperwork Reduction Act (``PRA'') \16\ imposes certain 
requirements on Federal agencies in connection with their conducting or 
sponsoring any collection of information as defined by the PRA. This 
Order does not impose any new recordkeeping or information collection 
requirements, or other collections of information that require approval 
of the Office of Management and Budget under the PRA.
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    \16\ 44 U.S.C. 3501 et seq.
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B. Cost-Benefit Considerations

    Section 15(a) of the Commodity Exchange Act (``CEA'') requires the 
Commission to consider the costs and benefits of its actions before 
promulgating a regulation under the CEA or issuing certain orders.\17\ 
Section 15(a) further specifies that the costs and benefits shall be 
evaluated in light of five broad areas of market and public concern: 
(i) Protection of market participants and the public; (ii) efficiency, 
competitiveness, and financial integrity of futures markets; (iii) 
price discovery; (iv) sound risk management practices; and (v) other 
public interest considerations. In this section, the Commission 
considers the costs and benefits resulting from its determinations with 
respect to the Section 15(a) factors.
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    \17\ 7 U.S.C. 19(a).
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1. Background
    As discussed above, Sec.  1.3(ggg)(4)(i) provides an exception from 
the swap dealer definition for persons who engage in a de minimis 
amount of swap dealing activity. Currently, under Sec.  1.3(ggg)(4)(i), 
a person shall not be deemed to be a swap dealer unless its swap 
dealing activity exceeds an aggregate gross notional amount threshold 
of $3 billion (measured over the prior 12-month period), subject to a 
phase-in period during which the gross notional amount threshold is set 
at $8 billion.\18\ The phase-in period would have terminated on 
December 31, 2018, and the de minimis threshold would have decreased to 
$3 billion, absent this Order.\19\ This would have required firms to 
start tracking their swap activity beginning January 1, 2018 to 
determine whether their dealing activity over the course of that year 
would require them to register as swap dealers.
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    \18\ 17 CFR 1.3(ggg)(4)(i). See generally 77 FR at 30626-35. See 
also note 4, supra.
    \19\ See 81 FR 71605.
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    The $3 billion threshold, which, absent this Order, would be 
effective on December 31, 2018, sets the baseline for the Commission's 
consideration of the costs and benefits of this Order.\20\ Accordingly, 
the Commission considers the costs and benefits that will result from 
extending the phase-in period.
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    \20\ See 77 FR at 30702-14 (discussing the cost-benefit 
considerations with regard to the final swap dealer definition); 81 
FR at 71607.
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2. General Cost and Benefit Considerations
    There are several policy objectives underlying swap dealer 
regulation and the de minimis exception to the swap dealer definition. 
The primary policy objectives of swap dealer regulation include the 
reduction of systemic risk, increased counterparty protections, and 
market efficiency, orderliness, and transparency.\21\ Registered swap 
dealers are subject to a broad range of requirements, including, inter 
alia, registration, internal and external business conduct standards, 
reporting, recordkeeping, risk management, posting and collecting 
margin, and chief compliance officer designation and responsibilities. 
As noted in the Sec.  1.3(ggg) adopting release, generally, the lower 
the de minimis threshold, the greater the number of entities that are 
subject to these requirements, which could decrease systemic risk, 
increase counterparty protections, and promote swap market efficiency, 
orderliness, and transparency.\22\
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    \21\ 77 FR at 30628-30, 30707-08.
    \22\ Id. at 30628-30, 30703, 30707-08.

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[[Page 50311]]

    The Commission also considers policy objectives furthered by a de 
minimis exception, which include regulatory certainty, allowing limited 
ancillary dealing, encouraging new participants to enter the swap 
dealing market, and regulatory efficiency.\23\ Generally, the higher 
the de minimis threshold, the greater the number of entities that are 
able to engage in dealing activity without being required to register, 
which could increase competition and liquidity in the swap market.\24\ 
In addition, because competitive markets may be more efficient, a 
higher de minimis threshold might improve swap market efficiency. 
Further, the Commission notes that it has been suggested that a higher 
threshold could allow the Commission to expend its resources on 
entities with larger swap dealing activities warranting more oversight. 
An alternative view is that the de minimis threshold should be set 
based on policy independent of consideration of the Commission's 
resources.
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    \23\ Id. at 30628-30, 30707-08.
    \24\ Alternatively, the Commission notes that a lower de minimis 
threshold may lead to potential changes in market behavior, 
including, for example, product innovation.
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    Extending the phase-in period by one year will delay realization of 
the policy benefits associated with the $3 billion de minimis 
threshold, but will also extend the policy benefits associated with a 
higher de minimis threshold. The additional time to adjust to the $3 
billion de minimis threshold also would potentially increase regulatory 
certainty for some market participants. Given that the de minimis 
exception is subject to a 12-month look-back, extending the phase-in 
period to December 31, 2019 would allow entities that would potentially 
have to register as swap dealers additional time to adjust their 
activities and prepare for the compliance obligations related to swap 
dealer registration.
3. Section 15(a)
    Section 15(a) of the CEA requires the Commission to consider the 
effects of its actions in light of the following five factors. This 
Order will delay the potential costs and benefits discussed below by 
one year.
(i) Protection of Market Participants and the Public
    Providing regulatory protections for swap counterparties who may be 
less experienced or knowledgeable about the swap products offered by 
swap dealers (particularly end-users who use swaps for hedging or 
investment purposes) is a fundamental policy goal advanced by the 
regulation of swap dealers. The Commission recognizes that the $3 
billion de minimis threshold may result in more entities being required 
to register as swap dealers compared to an $8 billion threshold, 
thereby extending counterparty protections to a greater number of 
market participants. Further, swap dealer regulation is intended to 
reduce systemic risk in the swap market because registered swap dealers 
are subject to a broad range of requirements, including, inter alia, 
requirements applicable to internal and external business conduct 
standards, reporting and recordkeeping, risk management, posting and 
collecting margin, and chief compliance officer designation and 
responsibilities. Pursuant to the Dodd-Frank Act, the Commission has 
proposed or adopted regulations for swap dealers--including margin and 
risk management requirements--designed to mitigate the potential 
systemic risk inherent in the swap market. Therefore, the Commission 
recognizes that a lower de minimis threshold may result in more 
entities being required to register as swap dealers, thereby 
potentially further reducing systemic risk.
(ii) Efficiency, Competitiveness, and Financial Integrity of Markets
    Other goals of swap dealer regulation are swap market transparency, 
orderliness, and efficiency. These benefits are achieved through 
regulations requiring, for example, swap dealers to keep trading 
records and report trades, provide counterparty disclosures about swap 
risks and pricing, and undertake portfolio reconciliation and 
compression exercises. Accordingly, the Commission notes that a lower 
de minimis threshold may have a positive effect on the efficiency and 
integrity of the markets.
    However, the Commission also recognizes that the efficiency and 
competitiveness of the swap market may be negatively impacted if the de 
minimis threshold is set too low by potentially increasing barriers to 
entry that may stifle competition and reduce swap market efficiency. 
For example, if entities choose to reduce or cease their swap dealing 
activities so that they would not need to register if the de minimis 
threshold decreases to $3 billion, the number or availability of market 
makers for swaps may be reduced, which could lead to increased costs 
for potential counterparties and end-users through having to pay higher 
spreads when undertaking swap transactions or foregoing the benefits of 
engaging in certain swap transactions that they would otherwise have 
undertaken.
(iii) Price Discovery
    The Commission preliminarily believes that a $3 billion de minimis 
threshold may discourage participation of new swap dealers and 
ancillary dealing. If there are fewer entities engaged in dealing, 
there may be a negative effect on price discovery.
(iv) Sound Risk Management
    The Commission notes that a $3 billion de minimis threshold could 
lead to better risk management practices because a greater number of 
entities would be required by regulation to: (i) Develop and implement 
detailed risk management programs; (ii) adhere to business conduct 
standards that reduce operational and other risks; and (iii) satisfy 
margin requirements for uncleared swaps.
(v) Other Public Interest Considerations
    The Commission has not identified any other public purpose 
considerations for this Order.

C. Antitrust Considerations

    Section 15(b) of the CEA requires the Commission to take into 
consideration the public interest to be protected by the antitrust laws 
and endeavor to take the least anticompetitive means of achieving the 
objectives of the CEA, in issuing any order or adopting any Commission 
rule or regulation. The Commission does not anticipate that the Order 
discussed herein will result in anti-competitive behavior.

V. Order

    In light of the foregoing, it is ordered, pursuant to the 
Commission's authority under Sec.  1.3(ggg)(4)(ii)(C)(1), that the de 
minimis threshold phase-in termination date shall be December 31, 2019.
    The Commission retains the authority to condition further, modify, 
suspend, terminate, or otherwise restrict any of the terms of the Order 
provided herein, in its discretion.

    Issued in Washington, DC, on October 26, 2017, by the 
Commission.
Christopher J. Kirkpatrick,
Secretary of the Commission.

Appendix to Order Establishing a New De Minimis Threshold Phase-In 
Termination Date--Commission Voting Summary

    On this matter, Chairman Giancarlo and Commissioner Quintenz 
voted in the affirmative. Commissioner Behnam voted in the negative.

[FR Doc. 2017-23660 Filed 10-30-17; 8:45 am]
 BILLING CODE 6351-01-P