60 day Fedral Register

722

Federal Register / Vol. 76, No. 4 / Thursday, January 6, 2011 / Proposed Rules

COMMODITY FUTURES TRADING
COMMISSION
17 CFR Parts 1, 37, 38, 39, and 40
RIN 3038–AD01

Governance Requirements for
Derivatives Clearing Organizations,
Designated Contract Markets, and
Swap Execution Facilities; Additional
Requirements Regarding the Mitigation
of Conflicts of Interest
Commodity Futures Trading
Commission.
ACTION: Notice of proposed rulemaking.
AGENCY:

The Commodity Futures
Trading Commission (the
‘‘Commission’’) hereby proposes
regulations to further implement new
statutory provisions enacted by Title VII
of the Dodd-Frank Wall Street Reform
and Consumer Protection Act (‘‘DoddFrank Act’’). Specifically, the
Commission proposes certain
substantive requirements on the
resolution of conflicts of interest, in
order to further implement core
principles applicable to derivatives
clearing organizations (‘‘DCOs’’),
designated contract markets (‘‘DCMs’’),
and swap execution facilities (‘‘SEFs’’).
Such substantive requirements address
reporting, transparency in decisionmaking, and limitations on use or
disclosure of non-public information,
among other things. For DCOs and
DCMs, the Commission also proposes
regulations to implement core
principles concerning governance
fitness standards and the composition of
governing bodies. Finally, for publiclytraded DCMs, the Commission proposes
regulations to implement the core
principle on diversity of Boards of
Directors.
The Commission welcomes comments
on all aspects of the proposed
regulations.

SUMMARY:

Submit comments on or before
March 7, 2011.
ADDRESSES: You may submit comments,
identified by RIN 3038–AD01 number,
by any of the following methods:
• Agency Web site, via its Comments
Online process: http://
comments.cftc.gov. Follow the
instructions for submitting comments
through the Web site.
• Mail: David A. Stawick, 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.

erowe on DSKG8SOYB1PROD with PROPOSALS-1

DATES:

VerDate Mar<15>2010

14:32 Jan 05, 2011

Jkt 223001

• Federal eRulemaking Portal: http://
www.regulations.gov. Follow the
instructions for submitting comments.
Please submit your comments using
only one method.
All comments must be submitted in
English, or if not, accompanied by an
English translation. Comments will be
posted as received to http://
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, a petition for
confidential treatment of the exempt
information may be submitted according
to the procedures established in § 145.9
of the Commission’s Regulations.1
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 http://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 Freedom of Information Act.
FOR FURTHER INFORMATION CONTACT:
Nancy Liao Schnabel, Special Counsel,
Division of Clearing and Intermediary
Oversight (DCIO), at 202–418–5344 or
[email protected]; Lois Gregory,
Assistant Deputy Director for Market
Review, the Division of Market
Oversight (DMO), at 202–418–5569 or
[email protected]; Alicia Lewis,
Attorney-Advisor, DCIO, at 202–418–
5862 or [email protected]; Jordan
O’Regan, Attorney-Advisor, DCIO, at
202–418–5984 or [email protected]; or
Jolanta Sterbenz, Counsel, Office of the
General Counsel, at 202–418–6639 or
[email protected]; in each case, also at
the Commodity Futures Trading
Commission, Three Lafayette Centre,
1155 21st Street, NW., Washington, DC
20581.
SUPPLEMENTARY INFORMATION:
I. Background
On July 21, 2010, President Obama
signed the Dodd-Frank Act.2 Title VII of
the Dodd-Frank Act 3 amended the
1 17

CFR 145.9.
Dodd-Frank Act, Public Law 111–203, 124
Stat. 1376 (2010). The text of the Dodd-Frank Act
may be accessed at http://www.cftc.gov./
LawRegulation/OTCDERIVATIVES/index.htm.
3 Pursuant to Section 701 of the Dodd-Frank Act,
Title VII may be cited as the ‘‘Wall Street
Transparency and Accountability Act of 2010.’’
2 See

PO 00000

Frm 00005

Fmt 4702

Sfmt 4702

Commodity Exchange Act (‘‘CEA’’) 4 to
establish a comprehensive new
regulatory framework for swaps and
certain security-based swaps. The
legislation was enacted to reduce risk,
increase transparency, and promote
market integrity within the financial
system by, among other things:
(i) Providing for the registration and
comprehensive regulation of swap
dealers and major swap participants; 5
(ii) imposing mandatory clearing and
trade execution requirements on
clearable swap contracts; (iii) creating
robust recordkeeping and real-time
reporting regimes; and (iv) enhancing
the rulemaking and enforcement
authorities of the Commission with
respect to, among others, all registered
entities and intermediaries subject to
the oversight of the Commission.
In order to ensure the proper
implementation of the comprehensive
new regulatory framework, the DoddFrank Act requires the Commission to
promulgate regulations regarding the
mitigation of conflicts of interest in the
operation of certain DCOs, DCMs, and
SEFs. On October 1, 2010, the
Commission identified possible
conflicts. Section II below briefly
summarizes these conflicts. To address
these conflicts, the Commission
proposed 6 both (i) structural
governance requirements 7 and
(ii) limits on ownership of voting equity
and exercise of voting power 8 (the
‘‘Conflicts of Interest NPRM’’).
47

U.S.C. 1 et seq.
this release, the terms ‘‘swap dealer’’ and
‘‘major swap participant’’ shall have the meanings
set forth in Section 721(a) of the Dodd-Frank Act,
which added Sections 1a(49) and (33) of the CEA.
However, Section 721(c) of the Dodd-Frank Act
directs the Commission to promulgate rules to
further define, among other terms, ‘‘swap dealer’’
and ‘‘major swap participant.’’ The Commission is
in the process of this rulemaking. See, e.g., http://
www.cftc.gov/LawRegulation/DoddFrankAct/
OTC_2_Definitions.html. The Commission
anticipates that such rulemaking will be completed
by the statutory deadline of July 15, 2011.
6 75 FR 63732 (Oct. 18, 2010).
7 According to the Conflicts of Interest NPRM:
(i) Each DCO, DCM, or SEF must have a Board of
Directors with at least 35 percent, but no less than
two, public directors; (ii) each DCO, DCM, or SEF
must have a nominating committee with at least 51
percent public directors; (iii) each DCO, DCM, or
SEF must have one or more disciplinary panels,
with a public participant as chair; (iv) each DCM
or SEF must have (A) a regulatory oversight
committee (‘‘ROC’’), with all public directors, and
(B) a membership or participation committee, with
35 percent public directors; and each DCO must
have a risk management committee (‘‘RMC’’), with
at least (A) 35 percent public directors and (B) 10
percent customer representatives. See generally 75
FR 63732 (Oct. 18, 2010).
8 According to the Conflicts of Interest NPRM, no
DCM or SEF member (and related persons) may (i)
beneficially own more than 20 percent of any class
of voting equity or (ii) directly or indirectly vote an
interest exceeding 20 percent of the voting power
of any class of equity.
5 In

E:\FR\FM\06JAP1.SGM

06JAP1

Federal Register / Vol. 76, No. 4 / Thursday, January 6, 2011 / Proposed Rules

erowe on DSKG8SOYB1PROD with PROPOSALS-1

The Conflicts of Interest NPRM
primarily aims to implement Sections
726 and 725(d) of the Dodd-Frank Act.9
However, the Commission drew
additional authority to propose the
abovementioned requirements from

A DCO may choose one of the following
alternatives. Under the first alternative, no
individual member may beneficially own more than
20 percent of any class of voting equity or directly
or indirectly vote an interest exceeding 20 percent
of the voting power of any class of equity. In
addition, the enumerated entities, whether or not
they are DCO members, may not collectively own
on a beneficial basis more than 40 percent of any
class of voting equity, or directly or indirectly vote
an interest exceeding 40 percent of the voting
power of any class of equity.
Under the second alternative, no DCO member or
enumerated entity, regardless of whether it is a DCO
member, may own more than five (5) percent of any
class of voting equity or directly or indirectly vote
an interest exceeding five (5) percent of the voting
power of any class of equity. Notwithstanding the
foregoing, the Conflicts of Interest NPRM provides
a procedure for the DCO to apply for, and the
Commission to grant, a waiver of the
abovementioned limits. See generally 75 FR 63732
(Oct. 18, 2010).
‘‘Enumerated entities’’ are those entities listed in
Section 726(a) of the Dodd-Frank Act and include:
(i) Bank holding companies with over
$50,000,000,000 in total consolidated assets; (ii) a
nonbank financial company supervised by the
Board of Governors of the Federal Reserve System;
(iii) an affiliate of (i) or (ii); (iv) a swap dealer; (v)
a major swap participant; or (vi) an associated
person of (iv) or (v).
9 First, Section 726(a) of the Dodd-Frank Act
specifically empowers the Commission to adopt
‘‘numerical limits * * * on control’’ or ‘‘voting
rights’’ that enumerated entities may hold with
respect to such DCOs, DCMs, and SEFs. Second,
Section 726(b) of the Dodd-Frank Act directs the
Commission to determine the manner in which its
rules may be deemed necessary or appropriate to
improve the governance of certain DCOs, DCMs, or
SEFs or to mitigate systemic risk, promote
competition, or mitigate conflicts of interest in
connection with the interaction between swap
dealers and major swap participants, on the one
hand, and such DCOs, DCMs, and SEFs. Finally,
Section 726(c) of the Dodd-Frank Act directs the
Commission to consider the manner in which its
rules address conflicts of interest in the
abovementioned interaction arising from equity
ownership, voting structure, or other governance
arrangements of the relevant DCOs, DCMs, and
SEFs.
Section 725(d) of the Dodd-Frank Act states:
‘‘[t]he Commodity Futures Trading Commission
shall adopt rules mitigating conflicts of interest in
connection with the conduct of business by a swap
dealer or a major swap participant with a
derivatives clearing organization, board of trade, or
a swap execution facility that clears or trades swaps
in which the swap dealer or major swap participant
has a material debt or material equity investment.’’

VerDate Mar<15>2010

14:32 Jan 05, 2011

Jkt 223001

Sections 725(c),10 735(b),11 and 733 12 of
the Dodd-Frank Act. Together, such
sections contain DCO, DCM, or SEF core
principles that require each such entity
to (i) establish and enforce rules to
minimize conflicts of interest in its
decision-making process and (ii)
establish a process for resolving such
conflicts.13 This proposed rulemaking
(the ‘‘Governance NPRM’’) aims to more
fully implement such core principles.
Therefore, the Governance NPRM
proposes the following requirements,
which complement those in the
Conflicts of Interest NPRM:
• Each DCO must report to the
Commission when its Board of Directors
rejects a recommendation from or
supersedes an action of the RMC; 14
• Each DCM or SEF must report to the
Commission when its Board of Directors
rejects a recommendation from or
supersedes an action of the ROC or the
Membership or Participation
Committee; 15
10 Section 725(c) of the Dodd-Frank Act amends
Section 5b(c) of the CEA to include new DCO Core
Principle O (Governance Fitness Standards), P
(Conflicts of Interest), and Q (Composition of
Governing Boards). Together, such core principles
empower the Commission to develop performance
standards for determining whether a DCO has: (i)
Governance arrangements that are transparent to
fulfill public interest requirements and to permit
consideration of the views of owners and
participants; (ii) appropriate fitness standards for
directors, members, and others; (iii) rules to
minimize and resolve conflicts of interest in DCO
decision-making; and (iv) governing boards or
committees that include market participants.
11 Section 735(b) of the Dodd-Frank Act retains
the existing DCM core principle on conflicts of
interest and governance fitness standards, but (i)
amends the existing DCM core principle on
composition of governing boards of contract
markets to state: ‘‘[t]he governance arrangements of
the board of trade shall be designed to permit
consideration of the views of market participants,’’
and (ii) adds a new DCM core principle on diversity
of the Board of Directors. Together, such core
principles empower the Commission to develop
performance standards for determining whether a
DCM has: (i) Appropriate fitness standards for
directors, members, and others; (ii) rules to
minimize conflicts of interest in DCM decisionmaking; (iii) appropriate governance arrangements
to permit the Board of Directors to consider the
views of market participants; and (iv) rules, if the
DCM is a publicly-traded company, regarding the
cultural diversity of the Board of Directors.
12 Section 733 of the Dodd-Frank Act includes
SEF Core Principle 12 (Conflicts of Interest) in new
Section 5h of the CEA. Such core principle
empowers the Commission to establish performance
standards for determining whether a SEF has rules
to minimize and resolve conflicts of interest in SEF
decision-making.
13 The conflicts of interest core principles are
DCO Core Principle P, DCM Core Principle 16, and
SEF Core Principle 12. Such core principles shall
hereinafter be referred to as ‘‘Conflicts of Interest
Core Principles.’’
14 In addition, a DCO would be required to report
to the Commission when its RMC rejects a
recommendation from or supersedes an action of a
subcommittee of the RMC.
15 The proposed regulations would also require
the ROC of a DCM or SEF to prepare an annual

PO 00000

Frm 00006

Fmt 4702

Sfmt 4702

723

• Each DCO, DCM, or SEF must:
Æ Implement a regulatory program to
identify, on an ongoing basis, existing
and potential conflicts of interest, as
well as a method for making fair and
non-biased decisions in the event of
such a conflict;
Æ Prescribe limits on the use or
disclosure of non-public information by
owners, members of the Board of
Directors, members of any committee,
officers or other employees; and
Æ Make certain information on
governance arrangements available to
the public and relevant authorities,
including summaries of significant
decisions.
In addition to containing the Conflicts
of Interest Core Principles, Sections
725(c), 735(b), and 733 of the DoddFrank Act add or amend DCO or DCM
core principles on (i) governance fitness
standards and (ii) composition of the
Board of Directors or other governing
bodies. Section 735(b) of the DoddFrank Act also adds a DCM core
principle on diversity of certain Boards
of Directors. To implement such core
principles, the Governance NPRM
proposes the following requirements:
• Each DCO or DCM must specify and
enforce fitness standards for its
members, directors, members of any
Disciplinary Panel or Disciplinary
Committee, persons with direct access,
and certain affiliates;
• Each publicly-traded DCM must
evaluate the breadth and cultural
diversity of its Board of Directors;
• Each DCM must design and
institute a process for considering the
range of opinions that market
participants 16 hold with respect to
(i) the functioning of an existing market
and (ii) new rules or rule amendments;
and
• Each DCO must have 10 percent
customer representation on its Board of
Directors, in lieu of having such
representation on the RMC (or the RMC
Subcommittee). Alternatively, each DCO
must have 10 percent customer
representation on the RMC (or the RMC
Subcommittee), in lieu of having such
representation on the DCO Board of
Directors.17
report to the Board of Directors assessing various
components of the regulatory program of such DCM
or SEF.
16 In general, the Commission interprets the term
‘‘market participants’’ to be more expansive than the
term ‘‘member’’ (as defined in Section 1a(34) of the
CEA). Therefore, with respect to DCMs, DCOs, and
SEFs, the Commission construes the term ‘‘market
participants’’ to encompass customers of members
(to the extent that such customers do not fall within
Section 1a(34) of the CEA).
17 As Section IV(c)(ii) below describes further, the
Commission is reconsidering that portion of the

E:\FR\FM\06JAP1.SGM

Continued

06JAP1

724

Federal Register / Vol. 76, No. 4 / Thursday, January 6, 2011 / Proposed Rules

erowe on DSKG8SOYB1PROD with PROPOSALS-1

Sections 725(c), 735(b), and 733
explicitly authorize the Commission to
promulgate regulations implementing
DCO, DCM, and SEF core principles
under Section 8a(5) of the CEA. Section
8a(5) of the CEA states that ‘‘[t]he
Commission is authorized * * * to
make or promulgate such rules and
regulations as, in the judgment of the
Commission, are reasonably necessary
to effectuate any of the provisions or to
accomplish any of the purposes of [the
CEA].’’ The requirements that the
Governance NPRM proposes apply to all
DCOs and DCMs, regardless of whether
they clear or list swap contracts or only
commodity futures or options.18
The Governance NPRM reflects
consultation with staff of the following
agencies: (i) The Securities and
Exchange Commission (the ‘‘SEC’’); 19
Conflicts of Interest NPRM that requires 10 percent
customer representation on the RMC. The
Commission notes that it has authority under both
Section 726 of the Dodd-Frank Act, as well as under
DCO Core Principles P (Conflicts of Interest) and Q
(Composition of Governing Boards) to adopt either
a Board or RMC composition requirement.
18 As the Conflicts of Interest NPRM states:
In applying such requirements and limits, the
Commission does not propose to distinguish
between DCMs and SEFs listing swap contracts. As
mentioned above, such DCMs and SEFs may
experience sustained competition with respect to
the same swap contract, and therefore would face
the same pressures on self-regulation. Additionally,
the Commission does not propose to distinguish
between (i) DCMs listing swap contracts and (ii)
DCMs listing only commodity futures and options.
As mentioned above, clearable swap contracts may
share sufficiently similar characteristics with
certain commodity futures and options as to
compete with respect to execution. Therefore, a
DCM listing only commodity futures and options
may face competition from a SEF with fewer selfregulatory requirements, in the same manner as a
DCM listing swap contracts. Given that the same
conflicts of interest may concern both types of
DCM, it would appear that the same (i) structural
governance requirements and (ii) limits on the
ownership of voting equity and the exercise of
voting power should apply.
In addition, the Commission does not propose to
distinguish between (i) DCOs clearing swap
contracts and (ii) DCOs clearing only commodity
futures and options. Certain standardized swap
contracts have sufficiently similar risk profiles to
commodity futures and options that the
Commission has, on occasion, permitted such
products to be commingled and margined within
the segregated customer account under Section 4d
of the CEA. If the Commission applied differential
(i) structural governance requirements and (ii)
limits on the ownership of voting equity and the
exercise of voting power, the Commission risks
creating an incentive for regulatory arbitrage
between the two types of DCO.
75 FR at 63737. The Commission has requested
comment in the Conflicts of Interest NPRM
regarding this approach. The Commission reiterates
its request for comment in the context of the
Governance NPRM.
19 Section 765 of the Dodd-Frank Act requires the
SEC to promulgate rules to mitigate conflicts of
interest in the operation of (i) a clearing agency that
clears security-based swaps, (ii) a security-based
swap execution facility, or (iii) a national securities
exchange that posts or makes available for trading

VerDate Mar<15>2010

14:32 Jan 05, 2011

Jkt 223001

(ii) the Board of Governors of the
Federal Reserve; (iii) the Office of the
Comptroller of the Currency; (iv) the
Federal Deposit Insurance Corporation;
and (v) the Treasury Department. The
Governance NPRM has been further
informed by (i) the joint roundtable that
Commission and SEC staff conducted on
August 20, 2010 (the ‘‘Roundtable’’) 20
and (ii) public comments posted to the
Web site of the Commission.21 Finally,
mindful of the importance of
international harmonization,22 the
Governance NPRM incorporates certain
elements of: (i) The Proposal for a
Regulation of the European Parliament
and of the Council on OTC Derivatives,
Central Counterparties, and Trade
Depositories (the ‘‘European
Commission Proposal’’); 23 and (ii) the
Recommendations for Central
Counterparties, drafted by the
Committee on Payment and Settlement
Systems of the Bank for International
Settlements and the Technical
Committee of the International
Organization of Securities Commissions,
dated November 2004 (the ‘‘CCP
Recommendations’’).24
The Commission requests comment
on all aspects of the Governance NPRM.

requirement. A further contention is
that sustained competition between
DCMs or SEFs may exacerbate certain
structural conflicts of interest.25
As the Conflicts of Interest NPRM
further describes, the potential conflicts
of interest that the Commission has
identified are: Conflicts of interest that
a DCO may confront when determining
(i) whether a product is capable of being
cleared, (ii) the minimum criteria that
an entity must meet in order to become
and remain a clearing member, and (iii)
whether a particular entity satisfies such
criteria; and conflicts of interest that a
DCM or SEF may confront in balancing
advancement of commercial interests
and fulfillment of self-regulatory
responsibilities.
In addition, the Commission has
identified misuse or disclosure of nonpublic information as a conflict of
interest that a DCO, DCM, or SEF may
confront. Certain individuals (e.g.,
owners, members of the Board of
Directors, officers, or other employees)
will be privy to non-public information.
Such non-public information could be
used or disclosed improperly (e.g., to
the detriment of competitors), whether
advertently or inadvertently.

II. Conflicts of Interest
As mentioned above, Title VII of the
Dodd-Frank Act amended the CEA to
establish a comprehensive new
framework for swaps and certain
security-based swaps. This framework
imposes mandatory clearing and trade
execution requirements with respect to
clearable swap contracts. Some market
participants, investor advocates, and
academics have expressed a concern
that the enumerated entities have
economic incentives to minimize the
number of swaps subject to mandatory
clearing and trading. They contend that
control of a DCO by the enumerated
entities, whether through ownership or
otherwise, constitutes the primary
means for keeping swap contracts out of
the mandatory clearing requirement,
and therefore also out of the trading

III. Mitigation of Conflicts of Interest
To more fully implement the Conflicts
of Interest Core Principles, the
Commission proposes certain
requirements related to (i) reporting, (ii)
identification and mitigation of conflicts
of interest, (iii) transparency of
governance arrangements, and (iv)
limitations on use or disclosure of nonpublic information.

security-based swaps. Core Principles for securitybased swap execution facilities are set forth in
Section 763 of the Dodd-Frank Act.
20 The transcript from the roundtable (the
‘‘Roundtable Tr.’’) is available at: http://
www.cftc.gov/ucm/groups/public/@newsroom/
documents/file/derivative9sub082010.pdf.
21 Such comments are available at: http://
www.cftc.gov/LawRegulation/DoddFrankAct/
OTC_9_DCOGovernance.html.
22 Currently, the Commission regulates certain
entities based outside of the United States (e.g.,
LCH.Clearnet Limited and ICE Clear Europe
Limited, each of which is based in the United
Kingdom).
23 COM(2010) 484/5.
24 The CCP Recommendations are available at:
http://www.bis.org/publ/cpss61.pdf.

PO 00000

Frm 00007

Fmt 4702

Sfmt 4702

A. Reporting Requirements
1. DCOs, DCMs, and SEFs
As mentioned above, the Conflicts of
Interest NPRM imposes specific
compositional requirements on the
Boards of Directors and certain
committees of DCOs, DCMs, and SEFs.
In order to facilitate the responsibility of
the Commission to oversee compliance
with such requirements, the Governance
NPRM proposes to mandate that each
DCO, DCM, or SEF submit to the
Commission within 30 days after each
election of its Board of Directors:
• A list of all members of the Board
of Directors, each committee with a
composition requirement (including any
Executive Committee 26), and each other
25 This term is defined in 72 FR 6936 (Feb. 14,
2007), which includes acceptable practices that the
Commission previously adopted for the DCM core
principle on conflicts of interest.
26 The Conflicts of Interest NPRM defines
‘‘Executive Committee’’ as a committee of the Board
of Directors that may exercise the authority
delegated to it by the Board of Directors with

E:\FR\FM\06JAP1.SGM

06JAP1

Federal Register / Vol. 76, No. 4 / Thursday, January 6, 2011 / Proposed Rules
committee that has the authority to
amend or constrain the action of the
Board of Directors,
• A description of the relationship, if
any, between such directors and the
registered entity or the members of the
registered entity (and, in each case, any
affiliates thereof),
• The basis for any determination that
a director qualifies as a Public Director,
and 27
• A description of how the
composition of the Board of Directors
and each of the abovementioned
committees allows the registered entity
to comply with applicable core
principles, regulations, as well as to the
rules of the registered entity.
2. DCOs
As the Conflict of Interest NPRM
states:
swap clearing members at DCOs that
currently clear large volumes of swap
contracts are exclusively enumerated entities.
Some have argued that the enumerated
entities have an incentive to influence DCO
risk assessments regarding (i) whether a swap
contract is capable of being cleared, (ii) the
appropriate membership criteria for a swap
clearing member, and (iii) whether a
particular entity meets such criteria.
Therefore, the Commission must carefully
consider the composition of the Risk
Management Committee, in order to achieve
(i) the increased clearing of swap contracts
that the Dodd-Frank Act contemplates
without compromising (ii) DCO safety and
soundness.28

erowe on DSKG8SOYB1PROD with PROPOSALS-1

The Conflicts of Interest NPRM
proposes to require each DCO to have an
RMC, with at least (i) 35 percent public
directors and (ii) 10 percent customer
representatives.29 If a DCO would like to
have greater clearing member
participation in risk management, then
it may cause its RMC to delegate to a
subcommittee (the ‘‘RMC
Subcommittee’’) decisions implicating
whether (i) a product is capable of being
cleared and (ii) particular entities or
categories of entities are capable of
performing such clearing. After such
delegation the RMC would be free of
any composition requirements.
In the abovementioned structure, the
RMC Subcommittee reports to the RMC,
whereas the RMC reports to the DCO
Board of Directors. Therefore, a DCO
respect to the management of the company or
organization. See proposed § 1.3(ccc). 75 FR at
63747.
27 With respect to DCOs, the Commission also
requires the basis for any determination that a
director qualifies as a customer representative.
28 75 FR at 63740.
29 See Section IV(c)(ii) below on Commission
reconsideration of requiring customer
representation on the RMC, rather than on the DCO
Board of Directors.

VerDate Mar<15>2010

14:32 Jan 05, 2011

Jkt 223001

governing body that is not subject to the
same compositional requirements as the
RMC or the RMC Subcommittee may
reject a recommendation or supersede
an action thereof.30 To enable the
Commission to determine whether such
a rejection or supersession originates
from a conflict of interest, the
Governance NPRM proposes to require
a DCO to submit a written report to the
Commission, whenever such a rejection
or supersession occurs.31 Such report
would detail, among other things, the
rationale for such rejection or
supersession. This requirement parallels
the requirements for central
counterparties (‘‘CCPs’’) in the European
Commission Proposal.32 The
Commission anticipates that such a
reporting requirement may serve to
deter conflicts from arising in the first
place.
3. DCMs or SEFs
The Conflicts of Interest NPRM
emphasizes the importance of the ROC
and Membership or Participation
Committees in ensuring that the DCM or
SEF does not prioritize commercial
interests over self-regulatory
responsibilities, including restricting
access or imposing burdens on access in
a discriminatory manner.33 As
mentioned above, the Conflicts of
Interest NPRM proposes to require each
DCM or SEF to have (i) a ROC with all
public directors and (ii) a Membership
or Participation Committee with 35
percent public directors. However, the
Conflicts of Interest NPRM contemplates
that such ROC or Membership or
Participation Committee would report to
the DCM or SEF Board of Directors. As
such DCM or SEF Board of Directors
may not be subject to the same
composition requirements (or may not
have the same members) as the ROC or
Membership or Participation
Committee, the Governance NPRM
proposes to require a DCM or SEF to
submit a written report to the
30 This

observation would be true regardless of
whether the Commission ultimately requires
customer representation on the RMC or the DCO
Board of Directors. However, the Commission
requests comment on whether the reporting
requirement described herein should apply to a
DCO if the Commission requires the latter and not
the former.
31 If, after examination, the Commission
determines that such rejection or supersession
originates from a conflict of interest, the
Commission may find that the DCO regulatory
program (as referenced in Section III(b) herein) is
non-compliant with DCO Core Principle P. Upon
making such a finding, the Commission may resort
to certain administrative remedies (e.g., pursuant to
Section 5c(d) of the CEA).
32 See Article 26(5) of the European Commission
Proposal.
33 75 FR 63741.

PO 00000

Frm 00008

Fmt 4702

Sfmt 4702

725

Commission whenever such Board of
Directors rejects a recommendation of
the ROC or the Membership or
Participation Committee or supersedes
an action. Such report would detail
among other things, the rationale for
such action. The Commission believes
that such a reporting requirement would
alert it to potential conflicts of interests,
as well as deter such conflicts from
arising in the first place.
In addition to the above, the
Governance NPRM proposes to require
the ROC to prepare an annual report to
the Board of Directors assessing various
components of the DCM or SEF
regulatory program. Such a requirement
generally parallels current acceptable
practices under DCM Core Principle
15.34
4. Questions 35
The Commission requests comment
on all aspects of the reporting
requirements. The Commission further
requests comment on the questions set
forth below.
• Pursuant to Article 31(2) of the
European Commission Proposal, if a
CCP cannot manage, through structural
or substantive governance arrangements,
conflicts of interest that may
disadvantage a specific member or
customer, then that CCP must disclose
to that member (or customer, if known)
the general nature or sources of such
conflicts. The CCP must make such
disclosure before accepting new
transactions from the affected member,
presumably so that such member (or
customer thereof) may choose to
discontinue clearing with the CCP.
Should the Commission consider
imposing a similar requirement on
DCOs? Why or why not?
• If the Commission decides to
impose a similar requirement on DCOs,
should the Commission extend such a
requirement to cover DCMs and SEFs?
Why or why not?
B. Regulatory Program
The Governance NPRM proposes to
require that, as part of its regulatory
program, each DCO, DCM, or SEF must
establish, maintain, and enforce written
procedures to:
• Identify, on an ongoing basis,
existing and potential conflicts of
interest; and
34 Such regulatory program is described further in
section III(b) herein. The Dodd-Frank Act has
redesignated DCM Core Principle 15 as DCM Core
Principle 16, but has left the actual language of the
core principle substantively unchanged. See section
3(ii)(E) under Acceptable Practices for Core
Principle 15 in Appendix B to Part 38 of the
Commission’s regulations.
35 See note 30 supra.

E:\FR\FM\06JAP1.SGM

06JAP1

726

Federal Register / Vol. 76, No. 4 / Thursday, January 6, 2011 / Proposed Rules

erowe on DSKG8SOYB1PROD with PROPOSALS-1

• Make fair and non-biased decisions
in the event of a conflict of interest.
Such procedures would include rules
regarding the recusal, when appropriate,
of parties involved in the making of
decisions. The Chief Compliance Officer
(for DCOs and SEFs), or the Chief
Regulatory Officer (for DCMs), shall, in
consultation with the Board of Directors
of the entity or a senior officer of the
entity, resolve any conflicts of interest.
The Commission anticipates that the
potential conflicts of interest that each
DCO, DCM, or SEF confronts may
change as the swaps market evolves
under regulation. Consequently, the
Commission believes that it is
appropriate to require a DCO, DCM, or
SEF to have a regulatory program to
monitor existing and potential conflicts
of interest on an ongoing basis. The
Commission intends to permit a DCO,
DCM, or SEF to contract with a thirdparty regulatory service provider to
fulfill such requirement, subject to
Commission guidance generally
applicable to such contractual
relationships.36
To protect the integrity of trade
execution and clearing, the Commission
believes that it is appropriate to require
each DCO, DCM, or SEF to have
procedures, including recusal
procedures, to make fair and non-biased
decisions in the event of a conflict of
interest. Article 26(4) of the European
Commission Proposal includes a similar
recusal requirement for CCP risk
committees. Specifically, if the
chairman of a CCP risk committee
determines that a member has an actual
or potential conflict of interest on a
particular matter, that member would
not be allowed to vote on that matter.
1. Questions
The Commission requests comment
on all aspects of the regulatory program.
The Commission further requests
comment on the questions set forth
below:
• As mentioned above, the
Commission intends to permit a DCO,
DCM, or SEF to contract with a thirdparty regulatory service provider (e.g.,
the National Futures Association) to
implement the abovementioned
regulatory program. Would a third-party
regulatory service provider itself ever
experience a conflict of interest from the
performance of its obligations under
36 See ‘‘Trading Facilities, Intermediaries, and
Clearing Organizations; New Regulatory
Framework; Final Rule,’’ 66 FR 42256, 42266
(August 10, 2001). Although the relevant discussion
focuses on DCMs, a similar logic would apply to
DCOs. Further, pursuant to the Dodd-Frank Act, the
Commission is contemplating proposing regulations
regarding such contractual relationships.

VerDate Mar<15>2010

14:32 Jan 05, 2011

Jkt 223001

such a contract? If so, under what
circumstances?
• Should the Commission propose
any other substantive requirements with
respect to the decision-making process
of a DCO, DCM, or SEF?
C. Transparency Requirements
At the Roundtable, certain market
participants emphasized that DCO
governance arrangements must be
transparent to permit the Commission,
as well as the public, to (i) learn of
decisions that have systemic importance
(e.g., whether a product is capable of
being cleared), and (ii) identify the
governing bodies (e.g., the RMC)
responsible for making such
decisions.37 Previously, when the
Commission proposed acceptable
practices for current DCM Core
Principle 15 (Conflicts of Interest), the
Commission recognized the value of
transparency in ‘‘maintaining market
integrity and public trust.’’ 38 Such a
rationale would appear to also apply to
DCOs and SEFs.39
In light of the above, the Governance
NPRM proposes to establish minimum
standards for the transparency of the
governance arrangements of each DCO,
DCM, or SEF to relevant authorities
(including the Commission) as well as
the public.40 These minimum
37 See, e.g., Comments from Jason Kastner, Vice
Chairman, Swaps and Derivatives Markets
Association (‘‘I think that the issue is making sure
that the risk committees of these DCOs are
transparent, that you know who the membership is,
that the decisions that are taken about whether to
permit new clearing members and whether to
permit new products to be listed are transparent
and readily appraisable, and so that everyone
knows, you know, what’s going on. * * * So this
is an open hearing, right? There’s a public record.
There’s cameras. There’s recordings. The same type
of transparency should apply to DCO governance so
that everyone is clear about how decisions are taken
and how they’re made and who’s making them.’’),
Roundtable Tr. at 74–75; and Comments from
Randy Kroszner, Professor of Economics, Booth
School of Business, University of Chicago (‘‘I think
this gets back to the transparency point, but I do
think it’s extremely important to have people with
the knowledge, the wherewithal, and with their
money on the line having input into these riskmanagement decisions, and I think the best way to
ensure that is to ensure a very, very transparent
process so that outsiders can evaluate and provide
the commentary and the independent directors will
have enough wherewithal, enough knowledge to
know what is going on.’’), Roundtable Tr. 78–79.
38 71 FR 38741 (July 7, 2006) (which proposed the
acceptable practices for current DCM core principle
15) (‘‘* * * the current market environment
mandates enhanced and transparent governance as
an essential business practice for maintaining
market integrity and public trust.’’).
39 According to Section 4.13.3 of the CCP
Recommendations, ‘‘[g]overnance arrangements
should be clearly specified and publicly available.’’
40 The Commission intends to promulgate the
transparency requirements for DCMs and SEFs
pursuant to its authority under DCM Core Principle
P, SEF Core Principle 12 (in each case, Conflicts of
Interest), and Section 8a(5) of the CEA. The

PO 00000

Frm 00009

Fmt 4702

Sfmt 4702

standards 41 require each DCO, DCM, or
SEF to:
• Make available certain information
to the public and relevant authorities; 42
• Ensure that the information made
available is current, accurate, clear and
readily accessible; and
• Disclose summaries of certain
significant decisions.
DCM, SEF, and DCO significant
decisions involve those areas in which
conflicts of interest identified in Section
II above may be most manifest. With
respect to a DCM or a SEF, significant
decisions would relate to access,
membership, and disciplinary
procedures. With respect to a DCO,
significant decisions would relate to
open access, membership, and the
finding of products acceptable (or not
acceptable) for clearing. The
Commission proposes to require that the
DCO specifically disclose whether (i) its
Board of Directors has rejected a
recommendation or superseded an
action of the RMC, or (ii) the RMC has
rejected a recommendation or
superseded an action of the RMC
Subcommittee. The Commission does
not intend the foregoing to require a
DCM, SEF, or DCO to disclose any ‘‘nonpublic information’’ (as proposed
§ 1.3(ggg) defines such term), including,
without limitation, minutes from
meetings of its Board of Directors or
committees or information that it may
have received on a confidential basis
from an applicant for membership.
Commission intends to promulgate the
transparency requirements for DCOs pursuant to its
authority under DCO Core Principle O (Governance
Fitness Standards), and Section 8a(5) of the CEA.
This core principle requires that a DCO establish
governance arrangements that are transparent to,
among other things, fulfill public interest
requirements. This core principle is interrelated to
DCO Core Principle P (Conflicts of Interest), since
transparency requirements enhance the ability of
the Commission to detect conflicts of interest, and
may serve to deter such conflicts. The Commission
believes that it has the authority to promulgate
transparency requirements under either DCO Core
Principle O or P.
41 As Section III discusses in greater detail, the
Commission proposes to require DCOs and DCMs
to meet additional standards regarding the manner
in which the Board of Directors considers the
opinions of market participants, among others.
42 Such information includes (i) the charter (or
mission statement) of the registered entity; (ii) the
charter (or mission statement) of the Board of
Directors and certain committees; (iii) the Board of
Directors nominations process for the registered
entity, as well as the process for assigning members
of the Board of Directors or other persons to certain
committees; (iv) names of all members of (a) the
Board of Directors and (b) certain committees; (v)
the identities of all Public Directors (and with
respect to a DCO, all customer representatives); (vi)
the lines of responsibility and accountability for
each operational unit of the registered entity; and
(vii) summaries of significant decisions implicating
the public interest.

E:\FR\FM\06JAP1.SGM

06JAP1

Federal Register / Vol. 76, No. 4 / Thursday, January 6, 2011 / Proposed Rules
1. Questions
The Commission requests comment
on all aspects of the transparency
requirements. The Commission further
requests comment on the questions set
forth below.
• Are the abovementioned proposals
necessary or appropriate to mitigate
DCO, DCM, or SEF conflicts of interest
or to ensure that DCO governance
arrangements are transparent to, among
other things, fulfill public interest
requirements? If not, why not? What
would be a better alternative?
• Should the Commission require that
a DCO, DCM, or SEF make available to
the public and relevant authorities
information other than that identified
above?
• Has the Commission accurately
identified DCO, DCM, or SEF significant
decisions? Should the Commission
explicitly deem any other DCO, DCM, or
SEF decisions as significant?
Conversely, should the Commission
deem any of the DCO, DCM, or SEF
decisions that it has identified to be not
significant? Why?
• Should the Commission permit a
DCO, DCM, or SEF to keep confidential
any information identified above? If so,
why?
D. Limitation on Use or Disclosure of
Non-Public Information

erowe on DSKG8SOYB1PROD with PROPOSALS-1

1. Requirements
The Governance NPRM proposes to
require each DCO, DCM, or SEF to
establish and maintain written policies
and procedures on safeguarding nonpublic information. These policies and
procedures must, at a minimum,
preclude a DCO, DCM, or SEF owner,
director, officer, or employee from using
or disclosing any non-public
information gained through their
interest or position, absent prior written
consent from the DCO, DCM, or SEF, as
applicable.43 The Commission intends
for such requirements to prohibit those
in a position of power, either by holding
a certain position in the organization or
through an ownership interest, from
leveraging such power to benefit,
commercially or otherwise, from nonpublic information.44 The Commission
believes that such leveraging would
43 The Commission recognizes that the disclosure
of non-public information may be necessary in
certain instances, even without the written consent
of the DCO, DCM, or SEF. Such instances include
if disclosure is compelled by valid legal process
(provided that the individual or entity notifies the
registered SDR) or required by a regulatory
authority.
44 For example, a DCO, DCM, or SEF member may
use or disclose non-public information (e.g., the
possibility of disciplinary action) to the detriment
of its competitor.

VerDate Mar<15>2010

14:32 Jan 05, 2011

Jkt 223001

constitute a clear conflict of interest.
The Commission notes that such
requirements comport with certain
aspects of the European Commission
Proposal.45
The Governance NPRM proposes to
define ‘‘non-public information’’ as any
information that the DCO, DCM, or SEF
owns or any information that such
entity otherwise deems confidential,
such as intellectual property belonging
to (A) such registered entity or (B) a
third party, which property such
registered entity receives on a
confidential basis. The Commission will
not preclude a DCO, DCM, or SEF from
adopting a more expansive definition of
‘‘non-public information.’’
2. Questions
The Commission requests comment
on all aspects of the limitation on use
of non-public information. The
Commission further requests comment
on the questions set forth below.
• Are the abovementioned proposals
necessary or appropriate to mitigate
DCO, DCM, and SEF conflicts of
interests? If not, why not? What would
be a better alternative?
• Has the Commission proposed an
appropriate definition for ‘‘non-public
information’’? If not, why not? What
would be a better alternative?
• Should the Commission consider
any other concerns regarding the use of
‘‘non-public information’’?
IV. Regulations Implementing
Governance Core Principles
In addition to regulations more fully
implementing the Conflicts of Interest
Core Principles, the Commission also
proposes regulations implementing DCO
and DCM core principles on governance
fitness and the composition of
governing boards. Further, the
Commission proposes regulations to
implement the DCM core principle on
diversity of certain Boards of Directors.
A. Governance Fitness Standards
DCO Core Principle O,46 as added by
Section 725(c) of the Dodd-Frank Act,
provides that each DCO shall (i)
establish governance arrangements that
are transparent to fulfill public interest
requirements and to permit the
consideration of the views of owners
and participants and (ii) establish and
enforce appropriate fitness standards for
(A) directors, (B) members of any
disciplinary committee, (C) members of
45 See Article 26(4) of the European Commission
Proposal (stating that ‘‘[w]ithout prejudice to the
right of competent authorities to be duly informed,
the members of the risk committee shall be bound
by confidentiality.’’).
46 7 U.S.C. 5b(c)(2)(O).

PO 00000

Frm 00010

Fmt 4702

Sfmt 4702

727

the DCO, (D) any other individual or
entity with direct access to the
settlement or clearing activities of the
DCO, and (E) any party affiliated with
any entity mentioned above. DCM Core
Principle 15, as retained by Section
735(b) of the Dodd-Frank Act, provides
that a DCM shall establish and enforce
appropriate fitness standards for (i)
directors, (ii) members of any
disciplinary committee, (iii) members of
the DCM, (iv) any other person with
direct access to the facility, and (v) any
person affiliated with any entity
mentioned above.
1. Fitness Requirements
To implement DCM Core Principle 15
and partially implement DCO Core
Principle O, the Governance NPRM
proposes to require each DCM and DCO
to specify and enforce fitness standards
for (i) directors, (ii) members of any
Disciplinary Panel,47 and (iii) members
of the Disciplinary Committee.48 These
standards shall include, at a minimum,
(i) those bases for refusal to register a
person under Section 8a(2) of the
CEA,49 and (2) the absence of a
significant history of serious
disciplinary offenses, such as those that
would be disqualifying under § 1.63 of
the Commission’s regulations.50
Also, the Governance NPRM proposes
to require each DCM and DCO to specify
and enforce fitness standards for (i) its
members and affiliates 51 thereof, (ii)
persons with direct access to the DCM
or, in the case of a DCO, to its settlement
and clearing activities, (iii) natural
persons who, directly or indirectly, own
greater than ten percent of any one class
47 The Conflicts of Interest NPRM defines
‘‘Disciplinary Panel’’ as a panel that shall be
responsible for conducting hearings, rendering
decisions, and imposing sanctions with respect to
disciplinary matters. See proposed § 40.9(c)(3)(i). 75
FR at 63752.
48 Section 1.63 of the Commission’s regulations
defines ‘‘Disciplinary Committee’’ as a person or
committee of persons, or any subcommittee thereof,
that is authorized by a self-regulatory organization
to issue disciplinary charges, to conduct
disciplinary proceedings, to settle disciplinary
charges, to impose disciplinary sanctions or to hear
appeals thereof. See 17 CFR 1.63.
49 7 U.S.C. 12(a)(2). Bases for refusal to register a
person under Section 8a(2) of the CEA include,
among other things, suspension or revocation of
registration, certain court orders prohibiting action
in the capacity of a registrant under the CEA,
certain felony convictions, or findings of violation
of the CEA or certain other Federal statutes.
50 17 CFR 1.63. Such offenses include violations
of certain self-regulatory organization rules and
violations of the CEA or the Commission’s
regulations thereunder.
51 The Governance NPRM proposes to define
‘‘affiliate’’ as a person that directly, or indirectly
through one or more intermediaries, controls, is
controlled by, or is under common control with, a
registered entity.

E:\FR\FM\06JAP1.SGM

06JAP1

728

Federal Register / Vol. 76, No. 4 / Thursday, January 6, 2011 / Proposed Rules

of equity interest in a DCM or DCO,52
and (v) parties affiliated with (A)
directors, (B) members of any
Disciplinary Panel, and (C) members of
the Disciplinary Committee.53 At a
minimum, such standards shall include
those bases for refusal to register a
person under Section 8a(2) of the
CEA.54
Further, the Governance NPRM
proposes to require each DCM and DCO
to collect and verify information that
supports compliance with the standards
articulated above and provide that
information to the Commission
annually.
The abovementioned proposals codify
the acceptable practices under current
DCM Core Principle 14 (Governance
Fitness Standards) and extend such
practices to DCOs.55 The Commission
believes that such proposals are
appropriate to ensure the integrity of
individuals and entities specified above.
Such integrity, in turn, allows DCMs
and DCOs to operate in the best interests
of the public.56
In addition to the above, the
Governance NPRM proposes to mandate
that members and certain other persons
must agree to become subject to the
jurisdiction of the DCM or the DCO, as
a condition of access. Such a proposal
ensures that a DCM or DCO, each of
which has self-regulatory
responsibilities, would be able to
appropriately discipline a member or
such other person for violation of DCM
or DCO rules. The Commission believes
that a DCM or DCO must have the
ability to exert such discipline in order
to ensure the fitness of members or such
other persons.

erowe on DSKG8SOYB1PROD with PROPOSALS-1

2. Questions
The Commission requests comment
on all aspects of the governance fitness
standards. Specifically, the Commission
requests comment on the questions set
forth below.
• Are the abovementioned proposals
necessary or appropriate to implement
52 This provision is a clarification of acceptable
practices under current DCM Core Principle 14.
53 Currently, the Governance NPRM does not
propose to impose any requirement on each DCM
and DCO with respect to fitness standards for
affiliates of persons with direct access. Therefore,
under Section 5(d)(1)(B) of the CEA, as added by
Section 735 of the Dodd-Frank Act, each DCM has
reasonable discretion in comporting with DCM Core
Principle 15 with respect to such affiliates. Also,
under Section 5b(c)(2)(A)(ii) of the CEA, as added
by Section 725 of the Dodd-Frank Act, each DCO
retains similar discretion.
54 See note 49 supra.
55 DCM Core Principle 14 is redesignated as DCM
Core Principle 15 under the Dodd-Frank Act.
56 DCMs facilitate the execution of, and DCOs
provide clearing for, ‘‘* * * transactions * * *
affected with a national public interest.’’ See
Section 3(a) of the CEA, 7 U.S.C. 5.

VerDate Mar<15>2010

14:32 Jan 05, 2011

Jkt 223001

DCM Core Principle 15 and DCO Core
Principle O? If not, why not? What
would be a better alternative?
• Should the Commission propose
any minimum fitness standards other
than those specified above?
• Is the Commission’s proposed
definition of affiliate appropriate? If not,
why?
B. Transparency Requirements
As mentioned above, DCO Core
Principle O 57 provides that each DCO
shall establish governance arrangements
that are transparent to fulfill public
interest requirements.58 Section III(C) of
the Governance NPRM discusses
proposals to implement such portion of
the core principle. However, DCO Core
Principle O also provides that each DCO
shall establish governance arrangements
that are transparent to permit the
consideration of the views of owners
and participants. Such language appears
unique to DCOs. Hence, the Governance
NPRM sets forth the following
additional proposals for DCOs:
• Each DCO shall make available to
the public, as well as relevant
authorities (including the Commission),
a description of the manner in which its
governance arrangements permit the
consideration of the views of owners
(whether voting or non-voting) and its
participants, including, without
limitation, clearing members and
customers;
• Such description shall include, at a
minimum:
Æ The general method by which the
DCO learns of the views of owners
(other than through the exercise of
voting power) and participants (other
than through representation on the DCO
Board of Directors or any DCO
committee); and
Æ The manner in which the DCO
considers such views.
1. Questions
The Commission requests comment
on all aspects of the additional
proposals. Specifically, the Commission
requests comment on the questions set
forth below.
• Are such additional proposals
necessary or appropriate to implement
DCO Core Principle O? If not, why not?
What would be a better alternative?
• Should the Commission propose to
require that each DCO make available to
57 7

U.S.C. 5b(c)(2)(O).
comport with the European Commission
Proposal, the Commission has additionally
interpreted DCO Core Principle O to require
governance arrangements that are well-defined and
that include a clear organizational structure with
consistent lines of responsibility and effective
internal controls.
58 To

PO 00000

Frm 00011

Fmt 4702

Sfmt 4702

the public, as well as relevant
authorities, information other than that
identified above?
C. Composition of the Board of Directors
1. DCMs
DCM Core Principle 17,59 as amended
by Section 735(b) of the Dodd-Frank
Act,60 provides that the governance
arrangements of a DCM shall be
designed to permit consideration of the
views of market participants. To
implement this provision, the
Governance NPRM proposes to require
each DCM to design and institute a
process for considering the range of
opinions that market participants hold
with respect to (i) the functioning of an
existing market (including governance
arrangements) and (ii) new rules or rule
amendments. The Commission intends
to permit each DCM to have the
flexibility to determine the process that
is most appropriate for its market
participants. The Commission notes that
one process by which a DCM may fulfill
DCM Core Principle 17 is to have
market participants on its Board of
Directors (or other governing bodies).
Regardless of the process that a DCM
chooses, the Governance NPRM requires
the DCM to make a description of such
process available to the public and to
relevant authorities (including the
Commission) as part of its compliance
with the transparency requirements
described in Section III(C) above.61
a. Questions.
The Commission requests comment
on this proposal. Specifically, the
Commission requests comment on the
questions set forth below.
• Is the abovementioned proposal
appropriate to implement DCM Core
Principle 17? What would be a better
alternative? What are the costs and
benefits of the abovementioned
proposals? What are the costs and
benefits of any alternative?
• Does the Commission need to
consider proposing any additional
requirements in order to implement
DCM Core Principle 17? What would be
the costs and benefits of any such
requirement?
59 7

U.S.C. 7(d)(17).
Dodd-Frank Act redesignated DCM Core
Principle 16 (Composition of Boards of Mutually
Owned Contract Markets) as DCM Core Principle 17
(Composition of Governing Boards of Contract
Markets), and amended the language of the core
principle. Former DCM Core Principle 16 stated: ‘‘In
the case of a mutually owned contract market, the
board of trade shall ensure that the composition of
the governing board reflects market participants.’’
DCM Core Principle 17, as amended by the DoddFrank Act states that ‘‘[t]he governance
arrangements of the board of trade shall be designed
to permit consideration of the views of market
participants.’’
60 The

E:\FR\FM\06JAP1.SGM

06JAP1

Federal Register / Vol. 76, No. 4 / Thursday, January 6, 2011 / Proposed Rules

erowe on DSKG8SOYB1PROD with PROPOSALS-1

2. DCOs
DCO Core Principle Q, as added by
Section 725(c) of the Dodd-Frank Act,
provides that each DCO shall ensure
that the composition of the governing
board or committee of the DCO includes
market participants. In partial reliance
on this core principle, the Conflicts of
Interest NPRM proposed requiring that
the RMC (or the RMC Subcommittee) be
composed of at least 10 percent
customer representatives. However,
based on comments that the
Commission received on the Conflicts of
Interest NPRM,62 certain market
participants would prefer that the DCO
Board of Directors, rather than the RMC,
include customer representation.63
Therefore, the Commission is
reconsidering whether requiring
customer representation on the RMC or
the DCO Board of Directors would better
implement both Section 726 of the
Dodd-Frank Act and DCO Core
Principle Q. Preliminarily, the
Commission is not inclined to require
customer representation on both the
RMC and the DCO Board of Directors, as
62 The comment period for the Conflicts of
Interest NPRM closed on November 17, 2010.
Comments are available at: http://
comments.cftc.gov/PublicComments/
CommentList.aspx?id=861.
63 See, e.g., Comment from the Investment
Company Institute, dated November 17, 2010
(stating that ‘‘[t]he Commissions’ proposals include
provisions that would allow for industry
representation on board advisory committees. The
CFTC proposal, for example, specifically includes
a requirement that 10 percent of the Risk
Management Committee of a swap entity be
composed of customers of clearing members who
also routinely execute swap contracts and who have
experience in using pricing models for such
contracts. We strongly support investor
representation on board advisory committees. These
committees are designed to facilitate meaningful
discussion on important issues before the board.
Nevertheless, such advisory committee
representation should not be a substitute for
investor representation on the board itself. This is
particularly true in the developing swap markets
where, at this time, investors have access to only
a handful of swap entities for clearing and
trading.’’). C.f. Comment from BlackRock, dated
November 15, 2010 (stating that ’’ [t]he essence of
BlackRock’s comments is that buy-side participants,
like customers of clearing members, need
meaningful representation on the committees that
make the critical determinations on the core
functions of the organization that impact all of its
participants. Such representation is more important
than fair representation on the Board of Directors
because the governance committees, such as the
Risk Management Committee, will have significant
influence over the day-to-day affairs of DCOs. The
Proposing Release would charge the Risk
Management Committee with determining products
eligible for clearing, setting standards and
requirements for initial and continuing clearing
membership eligibility, and advising the Board of
Directors on the DCO’s risk model and default
procedures. See Proposed Rule 39.13(g)(1), 75 FR at
63,750. In other words, decisions of the Risk
Management Committee will have profound and
immediate impacts on all DCO constituencies,
including customers.’’).

VerDate Mar<15>2010

14:32 Jan 05, 2011

Jkt 223001

the former reports to the latter. As
members of the DCO Board of Directors,
customer representatives would have
the opportunity to (i) review
recommendations and actions of the
RMC, (ii) request the rationale behind
such recommendations and actions, and
(iii) vote to reject such
recommendations and to supersede
such actions.
Based on the above, the Commission
is proposing to require that a DCO Board
of Directors include at least 10 percent
customer representatives. However, in
case the Commission decides to keep
such requirement at the RMC level, the
Commission is alternatively reproposing that the RMC (or the RMC
Subcommittee) be composed of at least
10 percent customer representatives. As
mentioned above, the Commission is
preliminarily anticipating that it would
adopt only one requirement on
customer representation. The
Commission is not anticipating making
a final decision regarding customer
representation until it finishes
reviewing comments on the Governance
NPRM.
a. Questions.
The Commission requests comment
on all aspects of the abovementioned
proposal. Specifically, the Commission
requests comment on the questions set
forth below.
• Should the Commission require
customer representation on the DCO
Board of Directors instead of the RMC
(or RMC Subcommittee)? Why or why
not? What are the benefits and costs of
such requirement?
• Alternatively, should the
Commission require customer
representation on the RMC (or the RMC
Subcommittee) instead of the DCO
Board of Directors? Why or why not?
What are the benefits and costs of such
requirement?
• Should the Commission consider
requiring customer representation on
both the DCO Board of Directors and the
RMC? Why or why not?
• Alternatively, should the
Commission consider requiring
customer representation on another
committee, but neither the DCO Board
of Directors nor the RMC? Why or why
not? Which committee would be most
appropriate? For example, the
Nominating Committee?
• What percentage or number of
customer representatives should the
Commission require on the DCO Board
of Directors? Should such percentage be
higher or lower than 10 percent? What
should such number be? What are the
benefits and costs of each percentage or
number?

PO 00000

Frm 00012

Fmt 4702

Sfmt 4702

729

• Alternatively, what percentage or
number of customer representatives
should the Commission require on the
RMC? Should such percentage be higher
or lower than 10 percent? What should
such number be? What are the benefits
and costs of each percentage or number?
• To the extent that the Commission
requires customer representatives on
either the DCO Board of Directors or the
RMC, should the Commission consider
imposing any additional requirement to
ensure that these representatives
appropriately weigh the interests of all
customers, rather than just advocate on
behalf of the entity to which such
representative belongs?
D. Diversity of DCM Board of Directors
DCM Core Principle 22, as added by
Section 735(b) of the Dodd-Frank Act,
provides that a DCM, if a publiclytraded company, shall endeavor to
recruit individuals to serve on its Board
of Directors and its other decisionmaking bodies (as determined by the
Commission) from among, and to have
the composition of the bodies reflect, a
broad and culturally diverse pool of
qualified candidates.
To implement DCM Core Principle 22,
the Governance NPRM proposes to
permit each publicly-traded DCM the
flexibility to determine (i) the standards
by which a Board of Directors could be
deemed broad and culturally diverse,
and (ii) the manner in which the DCM
Board of Directors meets that standard.
The Governance NPRM proposes that
each such DCM make available its
diversity standards to the public and
relevant authorities (including the
Commission) as part of its compliance
with the transparency requirements
described in Section III(C) above.
Further, the Governance NPRM
proposes that each such DCM provide
the Commission with an annual
certification of the manner in which its
Board of Directors meets its diversity
standards. If such a DCM concludes that
its Board of Directors does not yet meet
such standards, then the Governance
NPRM proposes that the DCM describe
the manner in which its Nominating
Committee is structuring recruiting
efforts to meet such standards. The
Commission is not currently proposing
diversity requirements for any other
DCM decision-making bodies. The
Commission interprets DCM Core
Principle 22 to apply only to DCMs that
are publicly-traded. This does not
include DCMs that are not publiclytraded but have one or more affiliates
that are.

E:\FR\FM\06JAP1.SGM

06JAP1

730

Federal Register / Vol. 76, No. 4 / Thursday, January 6, 2011 / Proposed Rules

1. Questions
The Commission requests comment
on all aspects of the diversity
requirement. Specifically, should the
Commission extend such requirement to
other DCM decision-making bodies?
Why or why not? If the Commission
proposes to extend such requirement,
which decision-making bodies should it
consider?
V. Related Matters

erowe on DSKG8SOYB1PROD with PROPOSALS-1

A. Regulatory Flexibility Act
The Regulatory Flexibility Act
(RFA) 64 requires that agencies consider
whether the regulations they propose
will have a significant economic impact
on a substantial number of small entities
and, if so, provide a regulatory
flexibility analysis respecting the
impact.65 The proposed rules detailed in
the Governance NPRM would only
affect DCOs, DCMs, and SEFs. The
Commission has previously determined
that DCOs 66 and DCMs 67 are not ‘‘small
entities’’ for purposes of the RFA. In
contrast, SEFs are a new category of
registrant that the Dodd-Frank Act
created. Accordingly, the Commission
has not addressed the question of
whether SEFs are, in fact, ‘‘small
entities’’ for purposes of the RFA.
The Dodd-Frank Act defines a SEF to
mean ‘‘a trading system or platform in
which multiple participants have the
ability to execute or trade swaps by
accepting bids and offers made by
multiple participants in the facility or
system, through any means of interstate
commerce, including any trading
facility that (A) facilitates the execution
of swaps between persons and (B) is not
a designated contract market.’’ 68 The
Commission hereby determines that
SEFs not be considered ‘‘small entities’’
for essentially the same reasons that
DCMs and DCOs have previously been
determined not to be small entities.
These reasons include the fact that the
Commission designates a contract
market or registers a derivatives clearing
organization only when it meets specific
criteria including expenditure of
sufficient resources to establish and
maintain adequate self-regulatory
programs. Likewise, the Commission
will register an entity as a SEF only after
it has met specific criteria including the
64 5

U.S.C. 601 et seq.

65 Id.
66 66

FR 45604, 45609 (August 29, 2001).
FR 18618, 18619 (April 30, 1982).
68 See Section 721 of the Dodd-Frank Act. The
Commission is contemplating proposing regulations
that would further specify those entities that must
register as a SEF. The Commission does not believe
that such proposals would alter its determination
that a SEF is not a ‘‘small entity’’ for purposes of
the RFA.
67 47

VerDate Mar<15>2010

14:32 Jan 05, 2011

Jkt 223001

expenditure of sufficient resources to
establish and maintain an adequate selfregulatory program.69 Accordingly, the
Commission does not expect the rules,
as proposed herein, to have a significant
impact on a substantial number of small
entities. Therefore, the Chairman, on
behalf of the Commission, hereby
certifies, pursuant to 5 U.S.C. 605(b),
that the proposed amendments will not
have a significant economic impact on
a substantial number of small entities.
The Commission invites the public to
comment on whether SEFs covered by
these rules should be considered small
entities for purposes of the RFA.
B. Paperwork Reduction Act
The Governance NPRM contains
information collection requirements.
The Paperwork Reduction Act of 1995
(‘‘PRA’’) 70 imposes certain requirements
on Federal agencies (including the
Commission) in conducting or
sponsoring any ‘‘collection of
information’’ (as the PRA defines such
term). Pursuant to the PRA, the
Commission has submitted to the
Director of the Office of Management
and Budget (‘‘OMB’’), an explanation, as
well as details, of the information
collection and recordkeeping
requirements which would be necessary
to implement the Governance NPRM.
1. Information Provided by Reporting
Entities/Persons
If the Governance NPRM is
promulgated in final form, they would
require DCOs, DCMs, and new SEF
registrants to collect and submit,
pursuant to parts 37 to 40 of the
Commission’s regulations, certain
information to the Commission, which
such regulations have never previously
required. For each such proposed
requirement, set forth below are
estimates of: (i) The number of
respondents; (ii) the number of annual
responses by each respondent; (iii) the
average hours per response; and (iv) the
aggregate annual reporting burden (in
hours as well as dollars). New OMB
control numbers will be assigned to
these proposed information collection
requirements.
New Collection 3038–NEW
Sections 37.1201(b)(5) and
38.851(b)(5) of the Commission’s
regulations require each SEF and DCM,
respectively, to provide to the
Commission on an annual basis a report
assessing the regulatory program of the
SEF or DCM, including (i) the
69 See Core Principle 2 applicable to SEFs under
Section 733 of the Dodd-Frank Act.
70 44 U.S.C. 3501 et seq.

PO 00000

Frm 00013

Fmt 4702

Sfmt 4702

description of such program,
(ii) expenses, (iii) staffing and structure,
(iv) certain disciplinary matters, and (v)
with respect to a SEF only, the
performance of the chief compliance
officer (as referenced in Section 5(f)(15)
of the Act).
OMB Control Number 3038–NEW.
Estimated number of respondents: 51.
Annual responses by each
respondent: 1.
Estimated average hours per response:
20.
Aggregate annual reporting burden in
hours: 1,020.
Aggregate annual reporting burden in
dollars: $121,125.00.
New Collection 3038–NEW
Sections 37.1201(d) and 38.851(d) of
the Commission’s regulations require a
SEF and DCM, respectively, to submit a
report to the Commission detailing five
items of information in the event that
the SEF or DCM Board of Directors
rejects a recommendation or supersedes
an action of the Regulatory Oversight
Committee or the Membership or
Participation Committee (or entity
performing the functions of such
committee). Similarly, § 39.25(b) of the
Commission’s regulations requires a
DCO to submit a report to the
Commission detailing five items of
information in the event that (i) the DCO
Board of Directors rejects a
recommendation or supersedes an
action of the RMC or (ii) the RMC rejects
a recommendation or supersedes an
action of the RMC Subcommittee.
OMB Control Number 3038–NEW
Estimated number of respondents: 70.
Annual responses by each
respondent: 1.
Estimated average hours per response:
15.
Aggregate annual reporting burden in
hours: 1,050.
Aggregate annual reporting burden in
dollars: $124,688.
New Collection 3038–NEW
Sections 38.801(d) and 39.24(b)(4) of
the Commission’s regulations require
each DCM and DCO, respectively, to
provide to the Commission information
on an annual basis that supports
compliance with certain governance
fitness standards.
OMB Control Number 3038–NEW
Estimated number of respondents: 35.
Annual responses by each
respondent: 1.
Estimated average hours per response:
8.
Aggregate annual reporting burden in
hours: 280.
Aggregate annual reporting burden in
dollars: $33,250.00.

E:\FR\FM\06JAP1.SGM

06JAP1

Federal Register / Vol. 76, No. 4 / Thursday, January 6, 2011 / Proposed Rules
New Collection 3038–NEW
Section 38.901(c) of the Commission’s
regulations requires each DCM to make
available to the public and the
Commission a description of its process
for considering the range of opinions
that market participants hold with
respect to (i) the functioning of an
existing market (including governance
arrangements) and (ii) new rules or rule
amendments. Section 39.24(a) of the
Commission’s regulations requires each
DCO to make available to the public and
to the relevant authorities, including the
Commission, a description of the
manner in which its governance
arrangements permit the consideration
of the views of its owners, whether
voting or non-voting, and its
participants, including, without
limitation, clearing members and
customers.
OMB Control Number 3038–NEW
Estimated number of respondents: 35.
Annual responses by each
respondent: 1.
Estimated average hours per response:
15.
Aggregate annual reporting burden in
hours: 525.
Aggregate annual reporting burden in
dollars: $62,344.00.
New Collection 3038–NEW
Section 38.1151(d) of the
Commission’s regulations requires each
DCM that is publicly listed on a
domestic exchange to (i) make available
to the public and the Commission the
standards by which its Board of
Directors shall be deemed broadly and
culturally diverse, and (ii) certify to the
Commission on an annual basis whether
and how its Board of Directors has met
certain diversity standards.

erowe on DSKG8SOYB1PROD with PROPOSALS-1

OMB Control Number 3038–NEW
Estimated number of respondents: 16.
Annual responses by each
respondent: 1.
Estimated average hours per response:
15.
Aggregate annual reporting burden in
hours: 240.
Aggregate annual reporting burden in
dollars: $28,500.00.
New Collection 3038–NEW
Section 40.9(b) of the Commission’s
regulations requires each DCO, DCM, or
SEF to submit to the Commission,
within 30 days after the election of the
Board of Directors, (i) a list of all
members of the Board of Directors, each
committee with a composition
requirement (including any Executive
Committee), and each other committee
with the authority to amend or constrain

VerDate Mar<15>2010

14:32 Jan 05, 2011

Jkt 223001

the action of the Board of Directors, (ii)
a description of the relationship, if any,
between such directors and the
registered entity or the members of the
registered entity (and, in each case, any
affiliates thereof), (iii) the basis for any
determination that a director qualifies as
a Public Director (and with respect to
DCOs only, as a customer
representative), and (iv) a description of
how the composition of the Board of
Directors and each of the
abovementioned committees allows the
DCO, DCM, or SEF to comply with
applicable core principles, regulations,
as well as to its rules.
OMB Control Number 3038–NEW
Estimated number of respondents: 70.
Annual responses by each
respondent: 1.
Estimated average hours per response:
2.
Aggregate annual reporting burden in
hours: 140.
Aggregate annual reporting burden in
dollars: $16,625.00.
New Collection 3038–NEW
Section 40.9(d) of the Commission’s
regulations requires each DCO, DCM or
SEF to make certain information
regarding its governance arrangements
available to the public and the
Commission on a current basis.71
OMB Control Number 3038–NEW
Estimated number of respondents: 70.
Annual responses by each
respondent: 4.
Estimated average hours per response:
10.
Aggregate annual reporting burden in
hours: 2,800.
Aggregate annual reporting burden in
dollars: $332,500.
The Commission invites the public
and other Federal agencies to comment
on any aspect of the proposed
information collection requirements
discussed above. Pursuant to 44 U.S.C.
3506(c)(2)(B), the Commission will
consider public comments on such
proposed requirements in:
• Evaluating whether the proposed
collections of information are necessary
for the proper performance of the
functions of the Commission, including
whether the information will have a
practical use;
• Evaluating the accuracy of the
estimated burden of the proposed
information collection requirements,
including the degree to which the
methodology and the assumptions that
the Commission employed were valid;
71 See

PO 00000

note 42 supra.

Frm 00014

Fmt 4702

• Enhancing the quality, utility, and
clarity of the information proposed to be
collected; and
• Minimizing the burden of the
proposed information collection
requirements on DCOs, DCMs, and
SEFs, including through the use of
appropriate automated, electronic,
mechanical, or other technological
information collection techniques, e.g.,
permitting electronic submission of
responses.
Copies of the submission from the
Commission to OMB are available from
the CFTC Clearance Officer, 1155 21st
Street, NW., Washington, DC 20581,
(202) 418–5160 or from http://RegInfo.
gov. Organizations and individuals
desiring to submit comments on the
proposed information collection
requirements should send those
comments to the OMB Office of
Information and Regulatory Affairs at:
• The Office of Information and
Regulatory Affairs, Office of
Management and Budget, Room 10235,
New Executive Office Building,
Washington, DC 20503, Attn: Desk
Officer of the Commodity Futures
Trading Commission;
• (202) 395–6566 (fax); or
• [email protected]
(e-mail).
2. Information Collection Comments
Please provide the Commission with
a copy of submitted comments so that
all comments can be summarized and
addressed in the final rule preamble.
Please refer to the ADDRESSES section of
the Governance NPRM for instructions
on submitting comments to the
Commission.
OMB is required to make a decision
concerning the proposed information
collection requirements between thirty
(30) and sixty (60) days after publication
of the Governance NPRM in the Federal
Register. Therefore, a comment to OMB
is best assured of receiving full
consideration if OMB (as well as the
Commission) receives it within thirty
(30) days of publication of the
Governance NPRM.
C. Cost-Benefit Analysis
Section 15(a) of the CEA 72 requires
that the Commission, before
promulgating a regulation or issuing an
order, consider the costs and benefits of
its action. By its terms, section 15(a) of
the CEA does not require the
Commission to quantify the costs and
benefits of a new regulation or to
determine whether the benefits of the
regulation outweigh its costs. Rather,
section 15(a) of the CEA simply requires
72 7

Sfmt 4702

731

E:\FR\FM\06JAP1.SGM

U.S.C. 19(a).

06JAP1

732

Federal Register / Vol. 76, No. 4 / Thursday, January 6, 2011 / Proposed Rules

erowe on DSKG8SOYB1PROD with PROPOSALS-1

the Commission to ‘‘consider the costs
and benefits’’ of its action. Section 15(a)
of the CEA further specifies that costs
and benefits shall be evaluated in light
of the following considerations: (1)
Protection of market participants and
the public; (2) efficiency and
competition; (3) financial integrity of
the futures markets and price discovery;
(4) sound risk management practices;
and (5) other public interest
considerations. Accordingly, the
Commission could in its discretion, give
greater weight to any one of the five
considerations and could determine
that, notwithstanding its costs, a
particular regulation was necessary or
appropriate to protect the public interest
or to effectuate any of the provisions or
to accomplish any of the purposes of the
Act.
1. The Conflicts of Interest Core
Principles: Proposed Regulations
a. Reporting.
As mentioned above, §§ 37.1201(b)(5)
and 38.851(b)(5) of the Commission’s
proposed regulations require each SEF
and DCM, respectively, to provide to the
Commission an annual assessment
report.
In addition, as mentioned above,
§§ 37.1201(d) and 38.851(d) of the
Commission’s proposed regulations
require a DCO, DCM, or SEF, as
appropriate, to submit a report to the
Commission whenever certain
committees are overruled and § 40.9(b)
of the Commission’s proposed
regulations requires each DCO, DCM, or
SEF to submit to the Commission postBoard election information.
b. Transparency of Governance
Arrangements.
As mentioned above, § 40.9(d) of the
Commission’s proposed regulations
requires each DCO, DCM or SEF to make
certain information regarding its
governance arrangements available to
the public and the Commission on a
current basis.
c. Identification and Mitigation of
Conflicts of Interest.
Section 40.9(e) of the Commission’s
proposed regulations require each DCO,
DCM, or SEF to establish, maintain, and
enforce written procedures to identify
existing and potential conflicts of
interest, and to make decisions in the
event of a conflict of interest. The
Commission recognizes that such
requirements impose costs. Such costs
may be ameliorated to the extent that
certain DCOs or DCMs may modify
existing practices to accommodate
proposed § 40.9(e).73
73 See, e.g., Rule 234 of the Chicago Mercantile
Exchange (‘‘CME’’) (Avoiding Conflicts of Interest in

VerDate Mar<15>2010

14:32 Jan 05, 2011

Jkt 223001

d. Limitations on Use or Disclosure of
Non-Public Information.
As more fully described above,
§ 40.9(f) of the Commission’s proposed
regulations requires each DCO, DCM, or
SEF to establish and maintain written
policies and procedures on safeguarding
non-public information. The
Commission recognizes that such
requirements impose costs. Such costs
may be ameliorated to the extent that
certain DCOs or DCMs may modify
existing practices to accommodate
proposed § 40.9(f).74
2. The Costs and Benefits of Regulations
Implementing the Conflicts of Interest
Core Principles
As Section II herein mentions, a DCO
may face conflicts of interest resulting
from control by enumerated entities.
Such conflicts may have detrimental
effects on the public because they may
impede the mandatory clearing of
swaps.75 Also, such conflicts may
evidence less sound risk management
practices, as such conflicts may cause a
DCO to make decisions regarding, e.g.,
membership, based on the commercial
interests of certain clearing members,
rather than on objective risk criteria.
Further, such conflicts may also have
detrimental effects on market
participants, as well as on efficiency
and competition, because such conflicts
may result in non-risk-based constraints
on the number of futures commission
merchants available to clear swaps,
which may increase the price that
certain market participants must bear in
order to obtain clearing. Finally, such
conflicts may have detrimental effects
on price discovery because, by
impeding the mandatory clearing of
swaps, they may also impede the
trading of swaps on a SEF or DCM.
Section II also states that sustained
competition between DCMs or SEFs
may exacerbate certain structural
conflicts of interest. Such structural
conflicts may lead a DCM or SEF to
prioritize commercial interests over selfregulatory responsibilities, including
restricting access or imposing burdens
on access in a discriminatory manner.
‘‘Significant Actions’’), available at: http://
www.cmegroup.com/rulebook/CME/I/2/34.html.
74 See, e.g., CME Confidentiality Policy for Market
Regulation and Audit Departments, available at:
http://www.cmegroup.com/market-regulation/
overview/files/confidentialitypolicy.pdf.
75 The Conflicts of Interest NPRM states: ‘‘The
framers of the Dodd-Frank Act observe that the
clearing of swap contracts constitutes a key means
for managing systemic risk, because clearing
removes the type of interconnectedness between
financial institutions that contributed to the
financial crisis resulting from the failure and
bankruptcy of firms such as Bear Stearns, Lehman
Brothers, and AIG.’’ 75 FR at 63736.

PO 00000

Frm 00015

Fmt 4702

Sfmt 4702

Such structural conflicts may have a
detrimental effect on price discovery, as
prices are best discovered in a market
with broad participation. Broad
participation generally results in higher
liquidity. Because of its effect on price
discovery, such structural conflicts may
also have a detrimental effect on market
participants, and ultimately, the public.
Certain market participants may face
higher fees to access a DCM or SEF.
Others may not be able to access a DCM
or SEF at all. To the extent that such
market participants are executing
transactions to hedge price risk
(whether their own or those of endusers), increased costs associated with a
hedge (or the inability to execute a
hedge) may be passed on to consumers.
Finally, such structural conflicts may
have a detrimental effect on efficiency
and competition, as certain market
participants may be precluded from
competing to execute at a lower price
for end-users.
As mentioned above, the Governance
NPRM proposes substantive
requirements that, together with the
proposals in the Conflicts of Interest
NPRM (i.e., structural governance
requirements and limitations on
ownership of voting equity and the
exercise of voting rights), mitigate the
conflicts of interest described in Section
II, and therefore, the detrimental effects
resulting from such conflicts. The
Commission believes that the benefits of
such mitigation exceed the costs for
DCOs, DCMs, and SEFs to implement
the Governance NPRM. The
Commission welcomes comment on its
determination.
3. Regulations Implementing DCM and
DCO Core Principles
a. Governance Fitness.
As mentioned above, §§ 38.801(d) and
39.24(b)(4) of the Commission’s
proposed regulations require each DCM
and DCO, respectively, to (i) specify and
enforce fitness standards for directors,
members, and certain other persons, and
(ii) provide to the Commission
information on an annual basis that
supports compliance with such
standards. For DCMs, the proposed
regulations are simply codifications of
current acceptable practices. Therefore,
the proposed regulations should impose
minimal additional costs. For DCOs,
governance fitness standards are
necessary to ensure sound risk
management practices, and therefore the
protection of market participants and
the public. The proposed regulations
should impose minimal costs on DCOs.
Certain DCOs are divisions of DCMs,
which means that they may already
apply current acceptable practices to

E:\FR\FM\06JAP1.SGM

06JAP1

Federal Register / Vol. 76, No. 4 / Thursday, January 6, 2011 / Proposed Rules

erowe on DSKG8SOYB1PROD with PROPOSALS-1

their directors, members, and other
persons. All DCOs are currently subject
to DCO Core Principle B,76 which
requires each to have ‘‘adequate * * *
managerial resources to discharge the
responsibilities of a DCO.’’ Thus, the
Commission preliminary believes that
the benefits of DCM and DCO
governance fitness standards exceed the
costs of such standards. The
Commission welcomes comment on its
determination.
b. Composition of Governing Boards.
As mentioned above, § 38.901(a) of
the Commission’s proposed regulations
requires DCM governance arrangements
to be designed to permit consideration
of the views of market participants.
Preliminarily, the Commission believes
that such benefit exceeds any costs
associated with § 38.901(c), which may
be idiosyncratic to each DCM. However,
the Commission notes that it has
specifically requested comment on the
costs and benefits of § 38.901(c), as well
as any alternative thereto.
Core Principle Q requires each DCO to
ensure that its governing board or
committee includes market participants.
Section 39.26 of the Commission’s
proposed regulations requires each DCO
Board of Directors to include 10 percent
representatives of customers.
Preliminarily, the Commission believes
that the benefit of such customer
representation exceeds any cost
associated with § 39.26.77 However, the
Commission notes that it has
specifically requested comment on the
costs and benefits of § 39.26, as well as
any alternative thereto.
Alternatively, § 39.13(g)(3)(i) of the
Commission’s proposed regulations
requires each RMC (or RMC
Subcommittee) to include 10 percent
representatives of customers. As
mentioned above, the Conflicts of
Interest NPRM had previously proposed
such requirement. Therefore, the costs
and benefits of § 39.13(g)(3)(i) have been
addressed in the Conflicts of Interest
NPRM.78
c. Regulation Implementing the DCM
Core Principle on Diversity of Certain
Boards of Directors.
As mentioned above, DCM Core
Principle 22, as added by Section 735(b)
of the Dodd-Frank Act, provides that a
DCM, if a publicly-traded company,
76 7

U.S.C. 7a–1(c)(B).
example, in addition to implementing DCO
Core Principle Q, certain comments on the Conflicts
of Interest NPRM state that customer representation
on the DCO Board of Directors would be a better
method of ameliorating conflicts of interest under
Section 726 of the Dodd-Frank Act. See note 63
supra. See generally, 75 FR at 63746 (discussing the
costs and benefits of the Conflicts of Interest
NPRM).
78 See generally, 75 FR at 63746.
77 For

VerDate Mar<15>2010

14:32 Jan 05, 2011

Jkt 223001

shall endeavor to recruit individuals to
serve on its Board of Directors and its
other decision-making bodies (as
determined by the Commission) from
among, and to have the composition of
the bodies reflect, a broad and culturally
diverse pool of qualified candidates.
Section 38.1151(d) of the
Commission’s proposed regulations
affords flexibility to each such DCM 79
to determine the standards by which a
Board of Directors may be deemed
broadly and culturally diverse. Further,
such section requires the DCM to (i)
make available to the public and the
Commission such standards, and (ii)
certify to the Commission on an annual
basis whether and how its Board of
Directors has met certain standards. The
benefit of cultural diversity on Boards of
Directors in enhancing the efficiency of
organizations has been recognized.80
Preliminarily, the Commission believes
that the benefit of § 38.1151(d) exceeds
its costs. The Commission welcomes
comment on its preliminary
determination.
4. Conclusion
Accordingly, after considering the five
factors specified in Section 15(a) of the
CEA, the Commission has determined to
propose the regulations set forth below.
The Commission invites public
comment on its evaluation of the costs
and benefits of all aspects of the
Governance NPRM.
List of Subjects
17 CFR Part 1
Brokers, Commodity futures,
Consumer protection, Reporting and
recordkeeping requirements.
79 Currently,

no such DCM exists.
example, SEC Commissioner Luis Aguilar
made the following remarks at an SEC Open
Meeting held on July 1, 2009:
Because of the importance of boards of directors,
investors increasingly care about how directors are
appointed, and what their background is. This is
especially true as American businesses increasingly
compete in both a global environment, and in a
domestic marketplace that is, itself, increasingly
diverse. In this ever more challenging business
environment, the ability to draw on a wide range
of viewpoints, backgrounds, skills, and experience
is critical to a company’s success.
It should be no surprise that studies indicate that
diversity in the boardroom can result in real value
for companies—and for shareholders. It also should
be no surprise that many investors—from
individual investors to sophisticated institutions—
have asked the Commission to provide for
disclosures about the diversity of corporate boards
and a company’s policies related to board diversity.
Also, the SEC issued a rule on Proxy Disclosure
Enhancements which, among other things, requires
public companies to disclose if they have a formal
policy to consider diversity with respect to board
nominees. See 74 FR 68334 (Dec. 16, 2009).
80 For

PO 00000

Frm 00016

Fmt 4702

Sfmt 4702

733

17 CFR Parts 37, 38 and 40
Commodity futures, Reporting and
recordkeeping requirements.
17 CFR Part 39
Commodity futures, Consumer
protection, Reporting and recordkeeping
requirements.
For the reasons stated in this release,
the Commission proposes to amend 17
CFR parts 1, 37, 38, 39, and 40 as
follows:
PART 1—GENERAL REGULATIONS
UNDER THE COMMODITY EXCHANGE
ACT
1. The authority citation for part 1
continues to read as follows:
Authority: 7 U.S.C. 1a, 2, 6, 6a, 6b, 6c, 6d,
6e, 6f, 6h, 6i, 6j, 6k, 6l, 6m, 6n, 6o, 6p, 7,
7a, 7b, 8, 9, 12, 12c, 13a, 13a–1, 16, 16a, 19,
21, 23, and 24 as amended by Pub. L. 222–
203, 124 Stat. 1376.

2. In § 1.3, as proposed to be amended
at 75 FR 63732, October 18, 2010, 75 FR
65586, October 26, 2010, 75 FR 77576,
December 13, 2010, and 75 FR 80211,
December 21, 2010, redesignate
paragraphs (zz) to (eee) as paragraphs
(bbb) to (ggg), redesignate paragraphs
(fff) to (ggg) as (iii) to (jjj), add and
reserve paragraph (zz), and add new
paragraphs (aaa) and (hhh) to read as
follows:
*
*
*
*
*
(zz) [Reserved].
(aaa) Affiliate. The term ‘‘affiliate’’
means a person that directly or
indirectly through one or more
intermediaries, controls, is controlled
by, or is under common control with,
another person.
*
*
*
*
*
(hhh) Non-Public Information.
(1) This term means any information
that a registered derivatives clearing
organization, a designated contract
market, or a registered swap execution
facility owns or any information that
such entity otherwise deems
confidential, such as intellectual
property belonging to:
(i) Such registered entity; or
(ii) A third party, which property
such registered entity receives on a
confidential basis.
(2) Nothing in this paragraph shall
preclude a registered entity from
adopting a definition of ‘‘non-public
information’’ that is more expansive
than the definition in this paragraph.
*
*
*
*
*
PART 37—SWAP EXECUTION
FACILITIES
3. The authority citation for part 37
continues to read as follows:

E:\FR\FM\06JAP1.SGM

06JAP1

734

Federal Register / Vol. 76, No. 4 / Thursday, January 6, 2011 / Proposed Rules

Authority: 7 U.S.C. 1a, 2, 5, 6, 6c, 7, 7a–
2, 7b–3, and 12a as amended by Titles VII
and VIII of Pub. L. 111–203, 124 Stat. 1376.

4. Section 37.19, as proposed at 75 FR
63747, October 18, 2010, is redesignated
as § 37.1201 and amended by adding
new paragraph (b)(5), redesignating
paragraph (d) as paragraph (e), adding
new paragraph (d), and revising newly
designated paragraph (e)(1) introductory
text, to read as follows:
§ 37.19

Conflicts of Interest.

erowe on DSKG8SOYB1PROD with PROPOSALS-1

*

*
*
*
*
(b) * * *
(5) Annual Report. The Regulatory
Oversight Committee shall prepare an
annual report assessing, for the Board of
Directors and the Commission, the
regulatory program of the registered
swap execution facility. Such report
shall:
(i) Describe the self-regulatory
program;
(ii) Set forth the expenses of the
regulatory program;
(iii) Describe the staffing and structure
of the same;
(iv) Catalogue investigations and
disciplinary actions taken during the
year; and
(v) Review the performance of
disciplinary committees and panels, as
well as the performance of the Chief
Compliance Officer (as referenced in
Section 5(f)(15) of the Act).
*
*
*
*
*
(d) Reporting to the Commission. In
the event that the Board of Directors of
a registered swap execution facility
rejects a recommendation or supersedes
an action of the Regulatory Oversight
Committee or the Membership or
Participation Committee (or entity
performing the functions of such
committee), the registered swap
execution facility shall submit a written
report to the Commission detailing:
(1) The recommendation or action of
the Regulatory Oversight Committee or
the Membership or Participation
Committee (or entity performing the
functions of such committee);
(2) The rationale for such
recommendation or action;
(3) The rationale of the Board of
Directors for rejecting such
recommendation or superseding such
action; and
(4) The course of action that the Board
of Directors decided to take contrary to
such recommendation or action.
(e) * * *
(1) Definitions. For purposes of this
§ 37.1201(e):
*
*
*
*
*

VerDate Mar<15>2010

14:32 Jan 05, 2011

Jkt 223001

PART 38—DESIGNATED CONTRACT
MARKETS
5. The authority citation for part 38
continues to read as follows:
Authority: 7 U.S.C. 2, 4c, 6, 6a, 6d, 6e, 6f,
6g, 6i, 6j, 6k, 6l, 6m, 6n, 7, 7a–2, 7b, 7b–1,
7b–3, 8, 9, 15, and 21 as amended by Pub.
L. 111–203, 124 Stat. 1376.

6. Add § 38.801 to subpart P, as
proposed at 75 FR 80612, December 22,
2010, to read as follows:
§ 38.801

Governance Fitness Standards.

(a) General. The designated contract
market shall establish and enforce
appropriate fitness standards for
directors, members of any disciplinary
committee, members of the contract
market, and any other person with
direct access to the facility (including
any party affiliated with any person
described in this paragraph).
(b) Fitness Standards for Directors
and Members of the Disciplinary Panel
and Disciplinary Committee. Each
designated contract market must specify
and enforce fitness standards for
directors, members of any Disciplinary
Panel (as defined in § 1.3(bbb) of this
chapter), and members of the
Disciplinary Committee (as defined in
§ 1.63 of this chapter). At a minimum,
such standards shall include:
(1) Those bases for refusal to register
a person under Section 8a(2) of the Act;
and
(2) The absence of a significant
history of serious disciplinary offenses,
such as those that would be
disqualifying under § 1.63 of this
chapter.
(c) Fitness Standards for Members,
Persons with Direct Access, and Certain
Affiliates. Each designated contract
market must specify and enforce fitness
standards for its members and affiliates
thereof; persons with direct access to
the facility; natural persons who,
directly or indirectly, own greater than
ten percent of any one class of equity
interest in a designated contract market;
and parties affiliated with the persons
enumerated in paragraph (b) of this
section. At a minimum, such standards
shall include those bases for refusal to
register a person under Section 8a(2) of
the Act.
(d) Verification. Each designated
contract market must collect and verify
information that supports compliance
with the standards in paragraphs (b) and
(c) of this section and provide that
information to the Commission on an
annual basis. Such information may
take the form of a certification based on
verifiable information, an affidavit from
the general counsel of the designated
contract market, registration

PO 00000

Frm 00017

Fmt 4702

Sfmt 4702

information, or other substantiating
information.
(e) Jurisdiction. As a condition of
access, members and non-member
market participants must agree to
become subject to the jurisdiction of the
designated contract market.
7. In § 38.851, as proposed at 75 FR
80612, December 22, 2010, add new
paragraph (b)(5) redesignate paragraph
(d) as paragraph (e), add new paragraph
(d), and revise newly designated
paragraph (e)(1) introductory text, to
read as follows:
§ 38.851

Conflicts of Interest.

*

*
*
*
*
(b) * * *
(5) Annual Report. The Regulatory
Oversight Committee shall prepare an
annual report assessing, for the Board of
Directors and the Commission, the
regulatory program of the designated
contract market. Such report shall:
(i) Describe the self-regulatory
program;
(ii) Set forth the expenses of the
regulatory program;
(iii) Describe the staffing and structure
of the same;
(iv) Catalogue investigations and
disciplinary actions taken during the
year; and
(v) Review the performance of
disciplinary committees and panels.
*
*
*
*
*
(d) Reporting to the Commission. In
the event that the Board of Directors of
a designated contract market rejects a
recommendation or supersedes an
action of the Regulatory Oversight
Committee or the Membership or
Participation Committee (or entity
performing the functions of such
committee), the designated contract
market shall submit a written report to
the Commission detailing:
(1) The recommendation or action of
the Regulatory Oversight Committee or
the Membership or Participation
Committee (or entity performing the
functions of such committee);
(2) The rationale for such
recommendation or action;
(3) The rationale of the Board of
Directors for rejecting such
recommendation or superseding such
action; and
(4) The course of action that the Board
of Directors decided to take contrary to
such recommendation or action.
(e) * * *
(1) Definitions. For purposes of this
§ 38.851(e):
*
*
*
*
*
8. Add § 38.901 to subpart R, as
proposed at 75 FR 80612, December 22,
2010, to read as follows:

E:\FR\FM\06JAP1.SGM

06JAP1

Federal Register / Vol. 76, No. 4 / Thursday, January 6, 2011 / Proposed Rules
§ 38.901 Composition of governing boards
of contract markets.

(a) General. The governance
arrangements of each designated
contract market shall be designed to
permit consideration of the views of
market participants.
(b) Notice. Each designated contract
market shall design and institute a
process for considering the range of
opinions that market participants hold
with respect to:
(1) The functioning of an existing
market (including governance
arrangements) and
(2) New rules or rule amendments.
(c) Transparency. As part of its
compliance with § 40.9(d) of this
chapter, each designated contract
market shall make available to the
public and to the relevant authorities,
including the Commission, a
description of such process.
(1) Such description shall include, at
a minimum:
(i) The manner in which the
designated contract market obtains
opinions from market participants;
(ii) The manner in which the
designated contract market considers
such opinions; and
(iii) A summary of the lines of
responsibility and accountability for
considering such opinions, from the
relevant operational unit to the Board of
Directors (and any committee thereof).
(2) Nothing in paragraph (c) of this
section shall be construed to constrain
the Commission from requiring the
designated contract market to describe
any other element of its process for
obtaining a fair understanding of the
opinions of market participants.
9. Add § 38.1151 to subpart W, as
proposed at 75 FR 80612, December 22,
2010, to read as follows:

erowe on DSKG8SOYB1PROD with PROPOSALS-1

§ 38.1151

Diversity of Board of Directors.

(a) General. A designated contract
market, if publicly-listed on a domestic
exchange, shall endeavor to recruit
individuals to serve on its Board of
Directors and its other decision-making
bodies (as determined by the
Commission) from among, and to have
the composition of the bodies reflect, a
broad and culturally diverse pool of
qualified candidates.
(b) Standards. Each such designated
contract market shall formulate,
describe, and enforce the standards by
which its Board of Directors shall be
deemed broadly and culturally diverse.
(c) Transparency. As part of its
compliance with § 40.9(d) of this
chapter, each such designated contract
market shall make available to the
public and to the relevant authorities,
including the Commission, such
standards.

VerDate Mar<15>2010

14:32 Jan 05, 2011

Jkt 223001

(d) Annual Certification. (1) On an
annual basis, each such designated
contract market shall certify to the
Secretary of Commission whether and
how its Board of Directors has met such
standards. If the designated contract
market determines that its Board of
Directors has failed to meet such
standards, then the designated contract
market must describe the manner in
which its Nominating Committee is
endeavoring to structure recruitment to
meet such standards.
(2) Such certification shall be in the
form of a letter or an affidavit signed by
the general counsel of the designated
contract market.
PART 39—DERIVATIVES CLEARING
ORGANIZATIONS
10. Revise the authority citation for
part 39 to read as follows:
Authority: 7 U.S.C. 2, 5, 6, 6d, 7a–1, 7a–
2, and 7b as amended by Pub. L. 111–123,
124 Stat. 1376.

11. Amend § 39.13, as proposed at 75
FR 63750, October 18, 2010, by revising
paragraph (g)(3)(i) to read as follows:
§ 39.13

Risk management.

*

*
*
*
*
(g) * * *
(3) * * *
(i) The Risk Management Committee
shall be composed of at least thirty-five
percent Public Directors of a derivatives
clearing organization and at least ten
percent representatives of customers. In
this context, a ‘‘customer’’ means any
customer of a clearing member,
including, without limitation:
(A) Any ‘‘customer’’ or ‘‘commodity
customer’’ within the meaning of § 1.3(k)
of this chapter;
(B) Any ‘‘foreign futures or foreign
options customer’’ within the meaning
of § 30.1(c) of this chapter; and
(C) Any customer entering into a
cleared swap (as defined in Section
1a(7) of the Act).
*
*
*
*
*
12. Add § 39.24 to read as follows:
§ 39.24

Governance Fitness Standards.

(a) Governance Arrangements.
(1) General.
(i) Each derivatives clearing
organization shall establish governance
arrangements that are transparent:
(A) To fulfill public interest
requirements; and
(B) To permit the consideration of the
views of owners and participants.
(ii) Each derivatives clearing
organization shall establish governance
arrangements that are well-defined and
include a clear organizational structure
with consistent lines of responsibility
and effective internal controls.

PO 00000

Frm 00018

Fmt 4702

Sfmt 4702

735

(2) Transparency. As part of its
compliance with § 40.9(d) of this
chapter, each derivatives clearing
organization shall make available to the
public and to the relevant authorities,
including the Commission, a
description of the manner in which its
governance arrangements permit the
consideration of the views of its owners,
whether voting or non-voting, and its
participants, including, without
limitation, clearing members and
customers. Such description shall
include, at a minimum:
(i) The general method by which the
derivatives clearing organization learns
of (A) the views of owners, other than
through their exercise of voting power,
and (B) the views of participants, other
than through representation on the
Board of Directors or any committee of
the derivatives clearing organization;
and
(ii) The manner in which the
derivatives clearing organization
considers such views.
(3) Construction. Nothing in
paragraph (a)(2) of this section shall be
construed to constrain the Commission
from requiring the derivatives clearing
organization to describe any other
element of the manner in which its
governance arrangements permit the
consideration of the views of its owners
and participants.
(b) Fitness Standards. (1) General.
Each derivatives clearing organization
shall establish and enforce appropriate
fitness standards for directors, members
of any disciplinary committee, members
of the derivatives clearing organization,
any other individual or entity with
direct access to the settlement or
clearing activities of the derivatives
clearing organization, and any party
affiliated with any individual or entity
described in this paragraph.
(2) Fitness Standards for Directors
and Members of the Disciplinary Panel
and Disciplinary Committee. Each
derivatives clearing organization must
specify and enforce fitness standards for
directors, members of any Disciplinary
Panel (as defined in § 1.3(bbb) of this
chapter), and members of the
Disciplinary Committee (as defined in
§ 1.63 of this chapter). At a minimum,
such standards shall include (i) those
bases for refusal to register a person
under Section 8a(2) of the Act, and (ii)
the absence of a significant history of
serious disciplinary offenses, such as
those that would be disqualifying under
§ 1.63 of this chapter.
(3) Fitness Standards for Clearing
Members, Persons with Direct Access,
and Certain Affiliates. Each derivatives
clearing organization must specify and
enforce fitness standards for its clearing

E:\FR\FM\06JAP1.SGM

06JAP1

736

Federal Register / Vol. 76, No. 4 / Thursday, January 6, 2011 / Proposed Rules

members and affiliates thereof; persons
with direct access to its settlement and
clearing activities; natural persons who,
directly or indirectly, own greater than
ten percent of any one class of equity
interest in the derivatives clearing
organization; and parties affiliated with
the persons enumerated in paragraph
(b)(2) of this section. At a minimum,
such standards shall include those bases
for refusal to register a person under
Section 8a(2) of the Act.
(4) Verification. Each derivatives
clearing organization must collect and
verify information that supports
compliance with the standards in
paragraphs (b)(2) and (3) of this section,
and provide that information to the
Commission on an annual basis. Such
information may take the form of a
certification based on verifiable
information, an affidavit from the
general counsel of the derivatives
clearing organization, registration
information, or other substantiating
information.
(5) Jurisdiction. As a condition of
access, clearing members and other
persons with direct access to the
settlement and clearing activities of a
derivatives clearing organization must
agree to become subject to the
jurisdiction of the derivatives clearing
organization.
13. In § 39.25, as proposed at 75 FR
63750, October 18, 2010, redesignate
paragraph (b) as paragraph (c), add new
paragraph (b), and revise newly
designated paragraph (c)(1) introductory
text to read as follows:
§ 39.25

Conflicts of interest.

erowe on DSKG8SOYB1PROD with PROPOSALS-1

*

*
*
*
*
(b) Reporting to the Commission. In
the event that:
(1) The Board of Directors of a
derivatives clearing organization rejects
a recommendation or supersedes an
action of the Risk Management
Committee, or
(2) The Risk Management Committee
rejects a recommendation or supersedes
an action of its subcommittee (as
described in § 39.13(g)(5) of this part),
the derivatives clearing organization
shall submit a written report to the
Commission detailing:
(i) The recommendation or action of
the Risk Management Committee (or
subcommittee thereof);
(ii) The rationale for such
recommendation or action;
(iii) The rationale of the Board of
Directors (or the Risk Management
Committee, if applicable) for rejecting
such recommendation or superseding
such action; and
(iv) The course of action that the
Board of Directors (or the Risk

VerDate Mar<15>2010

14:32 Jan 05, 2011

Jkt 223001

Management Committee, if applicable)
decided to take contrary to such
recommendation or action.
(c) * * *
(1) Definitions. For purposes of this
§ 39.25(c):
*
*
*
*
*
14. Add § 39.26 to read as follows:
§ 39.26

Composition of Governing Boards.

(a) General. (1) Each derivatives
clearing organization shall ensure that
the composition of the governing board
or committee of the derivatives clearing
organization includes market
participants.
(2) Nothing in this section shall
supersede any other section of this part
or any requirement applicable to a
derivatives clearing organization under
§ 40.9 of this chapter.
(b) Composition Requirement. The
Board of Directors of a derivatives
clearing organization shall be composed
of at least ten percent representatives of
customers. In this context, a ‘‘customer’’
means any customer of a clearing
member, including, without limitation:
(1) Any ‘‘customer’’ or ‘‘commodity
customer’’ within the meaning of § 1.3(k)
of this chapter;
(2) Any ‘‘foreign futures or foreign
options customer’’ within the meaning
of § 30.1(c) of this chapter; or
(3) Any customer entering into a
cleared swap (as defined in Section
1a(7) of the Act).
PART 40—PROVISIONS COMMON TO
REGISTERED ENTITIES
15. Revise the authority citation for
part 40 to read as follows:
Authority: 7 U.S.C. 1a, 2, 5, 6, 7, 7a, 8, and
12a, as amended by Pub. L. 111–203, 124
Stat. 1376.

16. Revise the heading and add new
paragraphs (b)(1)(iii), (d), (e), and (f) to
§ 40.9 as proposed at 75 FR 63751,
October 18, 2010, to read as follows:
§ 40.9 Governance and conflicts of
interest.

*

*
*
*
*
(b) * * *
(1) * * *
(iii) Each registered entity referenced
in paragraph (b)(1)(i) of the section must
submit to the Commission, within thirty
days after each election of its Board of
Directors:
(A) A list of all members of the Board
of Directors, each committee with a
composition requirement (including any
Executive Committee), and each other
committee that has the authority to
amend or constrain actions of the Board
of Directors;
(B) A description of the relationship,
if any, between such directors and the

PO 00000

Frm 00019

Fmt 4702

Sfmt 4702

registered entity or the members of the
registered entity (and, in each case, any
affiliates thereof, as § 1.3(aaa) of defines
such term); and
(C) The basis for any determination
that a director qualifies as a Public
Director, and, for derivatives clearing
organizations only, the basis for any
determination that a director qualifies as
a representative of customers; and
(D) A description of how the
composition of the Board of Directors
and each of the committees allows the
registered entity to comply with
applicable core principles, regulations,
as well as the rules of the registered
entity.
*
*
*
*
*
(d) Transparency of Governance
Arrangements. (1) Each registered
derivatives clearing organization,
designated contract market, or registered
swap execution facility shall, at a
minimum, make the following
information available to the public and
relevant authorities, including the
Commission:
(i) The charter (or mission statement)
of the registered entity;
(ii) The charter (or mission statement)
of the registered entity’s Board of
Directors, each committee with a
composition requirement (including any
Executive Committee), as well as each
other committee that has the authority
to amend or constrain actions of the
Board of Directors;
(iii) The Board of Directors
nomination process for the registered
entity, as well as the process for
assigning members of the Board of
Directors or other persons to any
committee referenced in paragraph
(d)(1)(ii) of this section;
(iv) For the Board of Directors and
each committee referenced in paragraph
(d)(1)(ii) of this section, the names of all
members;
(v) The identities of: all Public
Directors; and with respect to a
registered derivatives clearing
organization, all representatives of
customers;
(vi) The lines of responsibility and
accountability for each operational unit
of the registered entity;
(vii) Summaries of significant
decisions implicating the public
interest. Such significant decisions shall
include:
(A) With respect to a designated
contract market or a registered swap
execution facility, all decisions relating
to access, membership, and disciplinary
procedures; and
(B) With respect to a derivatives
clearing organization, all decisions
relating to open access (as described in

E:\FR\FM\06JAP1.SGM

06JAP1

erowe on DSKG8SOYB1PROD with PROPOSALS-1

Federal Register / Vol. 76, No. 4 / Thursday, January 6, 2011 / Proposed Rules
Section 2(h)(1)(B) of the Act),
membership (as described in Section
5(b)(c)(2)(C) of the Act), and the finding
of products acceptable or not acceptable
for clearing. In describing such
decisions, the derivatives clearing
organization shall specifically disclose
whether:
(1) Its Board of Directors has rejected
a recommendation or superseded an
action of the Risk Management
Committee; or
(2) The Risk Management Committee
has rejected a recommendation or
superseded an action of its
subcommittee (as described in
§ 39.13(g)(5) of this part).
(C) Nothing in the foregoing shall be
construed as requiring a designated
contract market, a registered swap
execution facility, or a derivatives
clearing organization to disclose any
‘‘non-public information’’ (as § 1.3(ggg)
of this chapter defines such term),
including, without limitation, minutes
from meetings of its Board of Directors
or committees and information that it
may have received on a confidential
basis from an applicant for membership.
(2) The registered entity must ensure
that the information specified in
paragraphs (d)(1)(i) to (vii) of this
section is current, accurate, clear, and
readily accessible, for example, on its
Web site. The registered entity shall set
forth such information in a language
commonly used in the commodity
futures and swap markets and at least
one of the domestic language(s) of the
jurisdiction in which the registered
entity is located.
(e) Regulatory Program. (1) As part of
its regulatory program, each registered
derivatives clearing organization,
designated contract market, or registered
swap execution facility must establish,
maintain, and enforce written
procedures to:
(i) Identify, on an ongoing basis,
existing and potential conflicts of
interest; and
(ii) Make fair and non-biased
decisions in the event of a conflict of
interest. Such procedures shall include
rules regarding the recusal, in
applicable circumstances, of parties
involved in the making of decisions.
The Chief Compliance Officer of a
registered derivatives clearing
organization or registered swap
execution facility shall, in consultation
with the Board of Directors of the entity,
an equivalent body, or a senior officer
of the entity, resolve any such conflicts
of interest.
(f) Limitations on Use or Disclosure of
Non-Public Information. (1) Each
registered entity must establish and
maintain written policies and

VerDate Mar<15>2010

14:32 Jan 05, 2011

Jkt 223001

procedures on safeguarding non-public
information gained through either an
ownership interest or through the
performance of official duties (including
duties associated with self-regulatory or
regulatory purposes) by members of its
Board of Directors, members of any
committee, or officers and other
employees.
(2) Such policies and procedures shall
comport, at a minimum, with the
following principles:
(i) No individual or entity described
in paragraph (f)(1) of this section shall
use or disclose any non-public
information, absent prior written
consent from the relevant registered
entity. A registered entity shall establish
guidelines that specify the information
that must be included in the written
consent.
(ii) No individual or entity described
in paragraph (f)(1) of this section shall,
either during or after service with the
relevant registered entity:
(A) Use, directly or indirectly,
information that the registered entity
deems to be non-public information; or
(B) Disclose non-public information to
others, except:
(1) To others within the relevant
registered entity or to outside advisors
thereof, provided that such advisors are
subject to confidentiality obligations,
and that such disclosure is necessary for
the performance of official duties by the
individual or entity;
(2) If required by regulatory authority;
or
(3) If compelled to so by valid legal
process, provided that the individual or
entity notifies the relevant registered
entity.
Issued in Washington, DC, on December 9,
2010, by the Commission.
David A. Stawick,
Secretary of the Commission.
Note: The following appendices will not
appear in the Code of Federal Regulations.

Appendices to Governance
Requirements for Derivatives Clearing
Organizations, Designated Contract
Markets, and Swap Execution
Facilities; Additional Requirements
Regarding the Mitigation of Conflicts of
Interest—Commission Voting Summary
and Statements of Commissioners
Appendix 1—Commission Voting
Summary
On this matter, Chairman Gensler and
Commissioners Dunn, Sommers, Chilton and
O’Malia voted in the affirmative; no
Commissioners voted in the negative.

PO 00000

Frm 00020

Fmt 4702

Sfmt 4702

737

Appendix 2—Statement of Chairman
Gary Gensler
I support the proposed rule on further
governance and conflicts of interest
requirements for derivatives clearing
organizations (DCOs), designated contract
markets (DCMs) and swap execution facilities
(SEFs). The proposed rule complements the
conflicts of interest provisions that the
Commission proposed on October 1st by
keeping regulators up to date about the
composition of boards, board committees and
ownership, promoting transparency in
decision-making and ensuring limitations on
use or disclosure of non-public information.
The proposed rule also provides guidance to
industry and the public on appropriate
minimum governance fitness standards for
DCOs and DCMs, as well as the manner in
which market participants must be heard or
included in DCO or DCM governance
arrangements. The proposed rule would
enhance the integrity of clearing and trading
and would increase public trust in the
facilities on which such important activities
occur.
[FR Doc. 2010–31898 Filed 1–5–11; 8:45 am]
BILLING CODE 6351–01–P

DEPARTMENT OF HEALTH AND
HUMAN SERVICES
Food and Drug Administration
21 CFR Parts 16 and 1107
[Docket No. FDA–2010–N–0646]
RIN 0910–AG39

Tobacco Products, Exemptions From
Substantial Equivalence Requirements
AGENCY:

Food and Drug Administration,

HHS.
ACTION:

Proposed rule.

The Food and Drug
Administration (FDA) is issuing this
proposed rule to establish procedures
for requesting an exemption from the
substantial equivalence requirements of
the Family Smoking Prevention and
Tobacco Control Act (Tobacco Control
Act). The proposed rule would describe
the process and statutory criteria for
requesting an exemption and explain
how FDA would review requests for
exemptions. Once finalized, this
regulation will satisfy the requirement
in the Tobacco Control Act that FDA
issue regulations implementing the
exemption provision.
DATES: Submit either electronic or
written comments on the proposed rule
by March 22, 2011. Submit comments
on information collection issues under
the Paperwork Reduction Act of 1995 by
February 7, 2011, (see the ‘‘Paperwork
Reduction Act of 1995’’ section of this
document).
SUMMARY:

E:\FR\FM\06JAP1.SGM

06JAP1