[Federal Register Volume 85, Number 79 (Thursday, April 23, 2020)]
[Proposed Rules]
[Pages 22690-22693]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-08109]


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COMMODITY FUTURES TRADING COMMISSION

17 CFR Chapter I

RIN 3038-AD99, RIN 3038-AE31, RIN 3038-AE32, RIN 3038-AE60, RIN 3038-
AE94


Extension of Currently Open Comment Periods for Rulemakings in 
Response to the COVID-19 Pandemic

AGENCY: Commodity Futures Trading Commission.

ACTION: Extension of currently open comment periods for rulemakings.

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SUMMARY: The coronavirus disease 2019 (``COVID-19'') pandemic may 
present challenges to the ability of market participants and other 
members of the public to submit timely comments on the Commission's 
proposed rulemakings. Accordingly, the Commission is extending the 
comment period for the rulemakings listed herein until the dates 
specified herein in order to provide market participants and other 
members of the public an additional period of time to comment on the 
proposed rulemakings.

DATES: For those rulemakings listed in SUPPLEMENTARY INFORMATION for 
which the comment period is being extended, comments must be received 
on or before the dates specified herein.

[[Page 22691]]


ADDRESSES: You may submit comments by any of the following methods:
     CFTC Website: comments.cftc.gov. Follow the instructions 
for submitting comments through the Comments Online process on the 
website.
     Mail: Send to Christopher Kirkpatrick, Secretary of the 
Commission, Commodity Futures Trading Commission, Three Lafayette 
Centre, 1155 21st Street NW, Washington, DC 20581.
     Hand Delivery/Courier: Same as Mail, above.
    Please submit your comments using only one method.
    To ensure that your comments are considered to the fullest extent 
possible by the Commission, you should identify each of the proposed 
rulemakings to which your comment applies by providing the name and RIN 
number associated with each rulemaking.
    All comments must be submitted in English, or if not, accompanied 
by an English translation. Comments will be posted as received to 
https://www.cftc.gov. You should submit only information that you wish 
to make available publicly. If you wish the Commission to consider 
information that you believe is exempt from disclosure under the 
Freedom of Information Act (``FOIA''), a petition for confidential 
treatment of the exempt information may be submitted according to the 
procedures established in Sec.  145.9 of the Commission's 
regulations.\1\
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    \1\ 17 CFR 145.9. Commission regulations referred to herein are 
found at 17 CFR chapter I.
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    The Commission reserves the right, but shall have no obligation, to 
review, pre-screen, filter, redact, refuse or remove any or all of your 
submission from https://www.cftc.gov that it may deem to be 
inappropriate for publication, such as obscene language. All 
submissions that have been redacted or removed that contain comments on 
the merits of the rulemaking will be retained in the public comment 
file and will be considered as required under the Administrative 
Procedure Act and other applicable laws, and may be accessible under 
the FOIA.

FOR FURTHER INFORMATION CONTACT: On this release, Laura B. Badian, 
Assistant General Counsel, (202) 418-5969, [email protected]; Mark T. 
Fajfar, Assistant General Counsel, (202) 418-6636, [email protected], in 
each case at the Office of the General Counsel, Commodity Futures 
Trading Commission, 1155 21st Street NW, Washington, DC 20581. On any 
particular rulemaking, the Commission staff members listed in the 
associated notice of proposed rulemaking.

SUPPLEMENTARY INFORMATION: 

Extension of Open Comment Periods on Rulemakings and Request for 
Comment

    In response to the COVID-19 pandemic, the Commission has worked 
closely with the industry to identify relief or other assistance that 
may be needed to help ensure the industry can support orderly and 
liquid markets in the face of the coronavirus. These efforts include 
staff no-action relief letters that offer market participants 
temporary, tailored relief to mitigate market disruptions.\2\
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    \2\ See, e.g., CFTC Letter No. 20-11 (Mar. 20, 2020) (granting 
temporary relief for commodity pool operators) and CFTC Letter No. 
20-12 (Mar. 31, 2020) (granting temporary relief for foreign brokers 
exempt pursuant to Commission Regulation 30.5 to handle U.S. futures 
market orders). All CFTC staff relief granted in response to COVID-
19 is available at https://www.cftc.gov/coronavirus.
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    The Commission, at its discretion, has traditionally considered 
comments submitted after a comment period closes but before adoption of 
a final rule or order. Nevertheless, in recognition of the challenges 
that market participants and other interested members of the public may 
face in commenting on proposed rulemakings as a result of the COVID-19 
pandemic, the Commission is formally extending the comment period for 
the rulemakings listed herein until the dates specified herein.
    The Commission is continuing to monitor the impact of the COVID-19 
pandemic on derivatives markets and their participants and may consider 
additional comment period extensions and other relief as appropriate.
    The comment periods for the following proposed rulemakings are 
being extended until the date specified below:

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                                                             Original
           Title of rulemaking             Date proposed   closing date     Extended closing date for comments
                                                           for comments
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Position Limits for Derivatives.........       1/30/2020       4/29/2020  Friday, 5/15/2020.
Swap Execution Facility Requirements and       1/30/2020       4/20/2020  Friday, 5/22/2020.
 Real-Time Reporting Requirements.
Certain Swap Data Repository and Data          5/13/2019     * 5/20/2020  Friday, 5/22/2020.
 Reporting Requirements.
Amendments to the Real-Time Public             2/20/2020       5/20/2020  Friday, 5/22/2020.
 Reporting Requirements.
Amendments to the Swap Data                    2/20/2020       5/20/2020  Friday, 5/22/2020.
 Recordkeeping and Reporting
 Requirements.
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* Previously extended from 7/29/2019.


    Issued in Washington, DC, on April 13, 2020, by the Commission.
Robert Sidman,
Deputy Secretary of the Commission.

Appendices to Extension of Currently Open Comment Periods for 
Rulemakings in Response to the COVID-19 Pandemic--Commission Voting 
Summary and Commissioners' Statements

Appendix 1--Commission Voting Summary

    On this matter, Chairman Tarbert and Commissioners Quintenz and 
Stump voted in the affirmative. Commissioners Behnam and Berkovitz 
voted in the negative.

Appendix 2--Dissenting Statement of Commissioner Rostin Behnam

    I strongly support extending all current open comment periods on 
rule proposals, which will allow commenters to solely focus their 
efforts on the immediate personal and professional needs of the day, 
and ensure--after we collectively get through these uncertain 
times--that commenters are able to provide the CFTC with the most 
fulsome comments to these important policy proposals. Unfortunately, 
today's Commission action does not extend current open comment 
periods in any meaningful way, and thus I respectfully must dissent.
    Five open comment periods are extended by today's action. 
However, the comment periods for three of the five rules are 
extended for a mere two days. That is not an extension at all. 
Instead, it is essentially an announcement that the Commission will 
not be extending these deadlines. For two of these rules, the 
comment period opened on February 20, so the entire comment period 
has essentially spanned the COVID-19 pandemic. Market participants 
deserve an opportunity to comment outside of current market 
conditions, and better rules would result. Importantly, the COVID-19 
pandemic itself may impact views on the proposed rules, and the CFTC 
should adjust comment

[[Page 22692]]

periods to allow for consideration of these evolving impacts.
    Similarly, today's action extends the comment period for 
position limits by a mere sixteen days. Prior position limits 
proposals have garnered hundreds of public comments totaling 
thousands of pages. Producing these comments presumably takes months 
of work and careful thought by market participants and other 
stakeholders. Extending the deadline to May 15 as market and public 
health uncertainty continues is not sufficient.
    I commend agency Division Directors and staff, who are 
themselves adjusting in real-time to the new realities of social 
distancing and teleworking, for issuing no-action relief aimed at 
providing market participants and registrants with necessary 
relief.\1\ These important actions have enabled market participants 
and registrants to focus their efforts on business continuity, 
market stability, and personnel management in these turbulent times. 
I also applaud the CFTC's recent actions to issue Customer 
Advisories notifying the public to be on high alert for fraudsters 
that are seeking to profit from recent market volatility related to 
COVID-19.\2\
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    \1\ CFTC Provides Relief to Market Participants in Response to 
COVID-19 (March 17, 2020), https://www.cftc.gov/PressRoom/PressReleases/8132-20; CFTC Issues Second Wave of Relief to Market 
Participants in Response to COVID-19 (March 17, 2020), https://www.cftc.gov/PressRoom/PressReleases/8133-20; CFTC Issues Third Wave 
of Relief to Market Participants in Response to COVID-19 (March 20, 
2020), https://www.cftc.gov/PressRoom/PressReleases/8136-20; CFTC 
Provides Further Relief to Market Participants in Response to COVID-
19 (March 31, 2020), https://www.cftc.gov/PressRoom/PressReleases/8142-20.
    \2\ CFTC Issue Customer Advisory on COVID-19 (March 18, 2020), 
https://www.cftc.gov/PressRoom/PressReleases/8134-20; CFTC Issues 
Customer Advisory on Fee Scams (April 6, 2020).
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    I previously stated that the CFTC should temporarily table all 
non-critical policy work, shifting all our efforts and resources 
towards monitoring market and institutional stability and 
resiliency, prioritizing surveillance and enforcement, working with 
other regulators, and exhaustively engaging with market participants 
to consider necessary agency action that will alleviate market 
disruptions and support stable financial markets.\3\
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    \3\ Statement of Commissioner Rostin Behnam Regarding COVID-19 
and CFTC Digital Assets Rulemaking (March 24, 2020). https://www.cftc.gov/PressRoom/SpeechesTestimony/behnamstatement032420.
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    Although markets continue to show signs of normalcy and 
stability since the most volatile days of the last two months, there 
remains significant uncertainty and a steep road ahead. 
Consequently, I believe comment periods should be of sufficient 
length to allow market participants to focus on the current crisis, 
which the public and country continue to endure. I stand ready to 
work with the Chairman, my fellow Commissioners, and market 
participants to reach agreement on meaningful extensions.

Appendix 3--Dissenting Statement of Commissioner Dan M. Berkovitz

    I dissent from today's extensions of comment periods for several 
pending proposed rulemakings because the extensions are too short. 
Market participants and the public need more time to be able to 
provide high-quality comments on pending CFTC rulemakings in light 
of the disruptions resulting from the novel coronavirus pandemic.
    Public comments serve a critical role in the Commission's 
rulemaking deliberative process on regulations that will impact 
market participants and safeguard derivatives markets for years to 
come. Not providing the public sufficient time to obtain additional 
perspective and develop meaningful comments in these extraordinary 
times is bad public policy.
    The Commission should afford market participants and interested 
members of the public comment periods substantially longer than the 
standard periods that apply absent these extraordinary 
circumstances. At a minimum, the Commission should extend all 
pending comment periods by 60 days. The two-week and two-day 
extensions granted by the Commission today are inadequate.
    The pandemic has disrupted--and destroyed--life across the 
country. To date, the coronavirus has killed more than 12,800 
Americans.\1\ The projected toll is expected to be much larger.\2\ 
Nearly 300 million Americans (over 90 percent of the population) are 
under stay-at-home orders.\3\ Nearly 10 million workers have filed 
jobless claims during the past two weeks.\4\ Schools are closed. 
Non-essential travel is forbidden. By no means can the current 
circumstances be described as--or treated as--business-as-usual.
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    \1\ Worldometer, Coronavirus Cases, as of April 8, 2020, 
available at https://www.worldometers.info/coronavirus/country/us/.
    \2\ See generally http://www.healthdata.org/.
    \3\ Philip Bump, Nearly all Americans are under stay-at-home 
orders. Some may have come too late., Washington Post, Mar. 2, 2020, 
available at https://www.washingtonpost.com/politics/2020/04/02/nearly-all-americans-are-under-stay-at-home-orders-some-may-have-come-too-late/.
    \4\ Rebecca Rainey and Norman McCaskill, `No words for this': 10 
million workers file jobless claims in just two weeks, Politico, 
Apr. 2, 2020,available at https://www.politico.com/news/2020/04/02/unemployment-claims-coronavirus-pandemic-161081.
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    So far, the financial markets have been resilient and have 
performed their intended functions of price discovery and risk 
management. Our market infrastructures--exchanges, clearinghouses, 
and swap execution facilities--have met the challenges posed by 
record volatility and volumes. Market participants have continued to 
provide essential risk management tools to American companies to 
help them maintain operations through this time of national crisis.
    I commend the work done by the CFTC staff in monitoring these 
markets and for taking appropriate action to ensure market 
participants can continue to access the markets while observing 
social distancing requirements. I also commend the Chairman and the 
agency's executive leadership team for enabling all of us at the 
CFTC to telework and carry out the mission of the agency from safe 
locations in accordance with state and federal requirements and 
guidelines.
    The COVID-19 related regulatory relief granted by the CFTC over 
the past few weeks is clear recognition that the pandemic has 
disrupted normal operations of market participants. Many functions 
cannot be performed in a timely manner due to physical displacements 
and other extraordinary demands on market participants. Just three 
weeks ago, on March 17, 2020, in CFTC Letter No. 20-02, CFTC staff 
observed, ``[d]isruptions in transportation and limited access to 
facilities and support staff as a result of the COVID-19 pandemic 
could hamper efforts of market participants to meet their regulatory 
obligations.'' The staff noted that no-action relief has been 
requested ``where compliance is anticipated to be particularly 
challenging or impossible because of displacement of firm personnel 
from their normal business sites due to [social distancing] and 
closures . . . .'' \5\ Subsequent staff no-action relief letters 
similarly recognized the difficulties that market participants face 
in complying with CFTC requirements and requests.
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    \5\ CFTC Letter No. 20-02.
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    To accommodate these extraordinary circumstances, the CFTC has 
granted relief from a variety of CFTC recordkeeping, reporting, and 
registration requirements. Specifically, the CFTC has granted relief 
from requirements to: Time-stamp records; \6\ record oral 
conversations; \7\ furnish Chief Compliance Officer Annual Reports 
to the Commission prior to September 1, 2020; \8\ register as an 
Introducing Broker (IB); \9\ submit annual compliance reports and 
fourth quarter financial reports prior to September 1, 2020; \10\ 
comply with audit trail requirements; \11\ file Form CPO-PQR 
pursuant to regulation 4.27; \12\ submit commodity pool annual 
reports due on or before April 30, 2020; \13\ distribute periodic 
account statements to pool participants due on or before April 30, 
2020; \14\ register as an IB (for foreign brokers acting under 
specified circumstances); \15\ and register as a Major Swap 
Participant prior to September 30, 2020.\16\
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    \6\ Id. (members of Designated Contract Markets (DCMs) and swap 
execution facilities (SEFs)); CFTC Letter No. 20-03 (futures 
commission merchants and IBs); CFTC Letter No. 20-04 (Floor 
Brokers); CFTC Letter No. 20-05 (Retail Foreign Exchange Dealers); 
CFTC Letter No. 20-06 (swap dealers).
    \7\ CFTC Letter No. 20-03; CFTC Letter No. 20-04; CFTC Letter 
No. 20-05; CFTC Letter No. 20-06; CFTC Letter No. 20-07 (SEFs).
    \8\ CFTC Letter No. 20-03; CFTC Letter No. 20-06.
    \9\ CFTC Letter No. 20-04.
    \10\ CFTC Letter No. 20-08 (SEFs).
    \11\ CFTC Letter No. 20-09 (DCMs, to the extent noncompliance is 
caused by displacement resulting from the COVID-19 pandemic 
response).
    \12\ CFTC Letter No. 20-11 (relief permits Small or Mid-Sized 
CPOs to file the required annual reports, and Large CPOs to file 
quarterly reports for the first quarter 2020, up to 45 days later 
than required by regulation).
    \13\ Id.
    \14\ Id.
    \15\ CFTC Letter No. 20-12.
    \16\ CFTC Letter No. 20-10.
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    The Commission's refusal to grant meaningful rulemaking comment 
period extensions stands in contrast to its swift recognition of 
requests by market

[[Page 22693]]

participants for relief from the Commission's reporting and 
registration regulations. It is not clear why the Commission 
believes that market participants who state that it is difficult to 
comply with fundamental reporting or registration requirements 
nonetheless will be able to evaluate proposed rules and prepare 
comments with minimal delay.
    Today's extension of two weeks for the position limits 
rulemaking--a rule that has been a decade in the making--is 
insignificant given the scope and magnitude of the proposed changes 
to the existing position limits rules. Further, the commodity 
markets have experienced unprecedented price movements and stresses 
over the past several weeks and commenters and the Commission would 
be well-served to review and take into account how the markets 
performed in this environment in fashioning and considering public 
comments. There is no compelling reason to require public comments 
on a position limits rule that has been ten years in the making 
without fully considering how the market has performed in the recent 
conditions of extreme stress.
    The two extensions of two days for the swap reporting 
rulemakings are not meaningful. In fact, they are almost 
disrespectful to the many industry professionals that are attempting 
to meet the Commission's comment deadlines under unprecedented 
circumstances. Typically, comment periods are measured in days. 
These extensions can be measured in hours. I doubt any market 
participant will find these extensions of any benefit.
    It is unreasonable to require market participants to prepare 
comments on complex rulemakings at the same time they are struggling 
to comply with fundamental recordkeeping, reporting, and 
registration obligations. The Commission should extend these 
comments periods by at least 60 days.

[FR Doc. 2020-08109 Filed 4-22-20; 8:45 am]
 BILLING CODE 6351-01-P