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Federal Register / Vol. 75, No. 198 / Thursday, October 14, 2010 / Proposed Rules
Business at the same time and on the
same terms and conditions.
(iii) You and the Associate investment
fund are providing follow-on financing
to the Small Business at the same time,
on the same terms and conditions, and
in the same proportionate dollar
amounts as your respective investments
in the previous round(s) of financing
(for example, if you invested $2 million
and your Associate invested $1 million
in the previous round, your respective
follow-on investments would be in the
same 2:1 ratio).
*
*
*
*
*
(g) Public notice. Before granting an
exemption under this § 107.730, SBA
will publish notice of the transaction in
the Federal Register.
§ 107.855

[Amended]

5. Amend § 107.855 by removing
paragraph (g)(10) and redesignating
current paragraphs (g)(11) through
(g)(13) as (g)(10) through (g)(12).
Dated: October 6, 2010.
Karen G. Mills,
Administrator.
[FR Doc. 2010–25729 Filed 10–13–10; 8:45 am]
BILLING CODE 8025–01–P

COMMODITY FUTURES TRADING
COMMISSION
17 CFR Parts 39 and 140
RIN 3038–AC98, 3038–AD02

Financial Resources Requirements for
Derivatives Clearing Organizations
Commodity Futures Trading
Commission.
ACTION: Notice of proposed rulemaking.
AGENCY:

The Commodity Futures
Trading Commission (Commission or
CFTC) is proposing rules to implement
new statutory provisions enacted by
Title VII and Title VIII of the DoddFrank Wall Street Reform and Consumer
Protection Act (Dodd-Frank Act). The
proposed regulations establish financial
resources requirements for derivatives
clearing organizations (DCOs) for the
purpose of ensuring that they maintain
sufficient financial resources to enable
them to perform their functions in
compliance with the Commodity
Exchange Act and the Dodd-Frank Act.
DATES: Submit comments on or before
December 13, 2010.
ADDRESSES: You may submit comments,
identified by RIN number, by any of the
following methods:
• Federal eRulemaking Portal: http://
www.regulations.gov. Follow the
instructions for submitting comments.

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SUMMARY:

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• Agency Web Site: http://
www.cftc.gov. Follow the instructions
for submitting comments on the Web
site.
• E-mail: [email protected].
Include the RIN number in the subject
line of the message.
• Fax: 202–418–5521.
• 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.
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 may be exempt from disclosure
under the Freedom of Information Act,
a petition for confidential treatment of
the exempt information may be
submitted according to the established
procedures in CFTC Regulation 145.9.1
FOR FURTHER INFORMATION CONTACT: John
C. Lawton, Deputy Director and Chief
Counsel, 202–418–5480,
[email protected], Phyllis P. Dietz,
Associate Director, 202–418–5449,
[email protected], or Eileen A. Donovan,
Special Counsel, 202–418–5096,
[email protected], Division of Clearing
and Intermediary Oversight, Commodity
Futures Trading Commission, Three
Lafayette Centre, 1155 21 Street, NW.,
Washington, DC 20581.
SUPPLEMENTARY INFORMATION:
I. Background
A. Title VII
On July 21, 2010, President Obama
signed the Dodd-Frank Act.2 Title VII of
the Dodd-Frank Act 3 amended the
Commodity Exchange Act (CEA) 4 to
establish a comprehensive regulatory
framework to reduce risk, increase
transparency, and promote market
integrity within the financial system by,
among other things: (1) Providing for the
registration and comprehensive
regulation of swap dealers and major
swap participants; (2) imposing clearing
and trade execution requirements on
1 Commission regulations referred to herein are
found at 17 CFR Ch. 1.
2 See Dodd-Frank Wall Street Reform and
Consumer Protection 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.’’
4 7 U.S.C. 1 et seq.

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standardized derivative products;
(3) creating rigorous recordkeeping and
real-time reporting regimes; and
(4) enhancing the Commission’s
rulemaking and enforcement authorities
with respect to all registered entities
and intermediaries subject to the
Commission’s oversight.
Section 725(c) of the Dodd-Frank Act
amends Section 5b(c)(2) of the CEA,
which sets forth core principles with
which a DCO must comply to be
registered and to maintain registration
as a DCO.
The core principles were added to the
CEA by the Commodity Futures
Modernization Act of 2000 (CFMA).5
Consistent with the CFMA’s principlesbased approach to regulation, the
Commission did not adopt
implementing rules and regulations, but
instead promulgated guidance for DCOs
on compliance with the core
principles.6 However under Section
5b(c)(2), as amended by the Dodd-Frank
Act, Congress expressly confirmed that
the Commission may adopt
implementing rules and regulations
pursuant to its rulemaking authority
under Section 8a(5) of the CEA.7
The Commission continues to believe
that, where possible, each DCO should
be afforded an appropriate level of
discretion in determining how to
operate its business within the statutory
framework. At the same time, the
Commission recognizes that specific
bright-line regulations may be necessary
in order to facilitate DCO compliance
with a given core principle, and
ultimately, to protect the integrity of the
U.S. clearing system. Accordingly, in
developing the proposed regulation, the
Commission has endeavored to strike an
appropriate balance between
establishing general prudential
standards and prescriptive
requirements.
Core Principle B, as amended by the
Dodd-Frank Act, requires a DCO to
possess financial resources that, at a
minimum, exceed the total amount that
would enable the DCO to meet its
financial obligations to its clearing
members 8 notwithstanding a default by
5 See Commodity Futures Modernization Act of
2000, Public Law 106–554, 114 Stat. 2763 (2000).
6 See Appendix A to Part 39, 17 CFR Part 39. The
Commission notes that it intends to propose
removal of Appendix A, in its entirety, as part of
a future proposed rulemaking.
7 Section 8a(5) of the CEA authorizes the
Commission to promulgate such 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.
8 The term ‘‘clearing members’’ refers to entities
that have a direct financial relationship to a DCO,
regardless of the DCO’s organizational structure,

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the clearing member creating the largest
financial exposure for the DCO in
extreme but plausible market
conditions; and enable the DCO to cover
its operating costs for a period of 1 year,
as calculated on a rolling basis. The
Commission is proposing to adopt
Regulation 39.11 to establish
requirements that a DCO will have to
meet in order to comply with Core
Principle B.
B. Title VIII
Section 802(b) of the Dodd-Frank Act
states that the purpose of Title VIII is to
mitigate systemic risk in the financial
system and to promote financial
stability. Section 804 authorizes the
Financial Stability Oversight Council
(Council) to designate entities involved
in clearing and settlement as
systemically important.9
Section 805(a) of the Dodd-Frank Act
allows the Commission to prescribe
regulations for those DCOs that the
Council has determined are systemically
important. The Commission is also
proposing to adopt some additional or
enhanced requirements for systemically
important DCOs (SIDCOs).
The Commission requests comment
on all aspects of the proposed rules, as
well as comment on the specific
provisions and issues highlighted in the
discussion below. The Commission
further requests comment on an
appropriate effective date for final rules,
once adopted.
II. Proposed Regulations
A. DCOs
1. Amount of Financial Resources
Required

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As a central counterparty, a DCO must
have sufficient financial resources to be
able to withstand a potential default by
one of its clearing members.10 In the
event of a default, a DCO would
continue to have obligations to the
clearing members that are owed
variation settlement payments and,
therefore, the DCO must have sufficient
liquid resources to meet those
obligations in a timely fashion.
Proposed Regulation 39.11(a)(1) would
i.e., whether or not the DCO is a membership
organization. Clearing members include futures
commission merchants (FCMs) that clear on behalf
of customers or themselves, and non-FCMs that
clear solely on behalf of themselves. See also the
definition of the term ‘‘clearing member’’ in CFTC
Regulation 1.3(c).
9 Commission staff has been engaged in
discussions with staff of other members of the
Council concerning which entities might qualify.
10 Each DCO determines for itself what constitutes
a ‘‘default,’’ but generally a clearing member is
considered to be in default when it fails to fulfill
any obligation to the DCO.

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require a DCO to maintain sufficient
financial resources to meet its financial
obligations to its clearing members
notwithstanding a default by the
clearing member creating the largest
financial exposure for the DCO in
extreme but plausible market
conditions. This standard is consistent
with the standard set forth in Core
Principle B, and is also consistent with
current international standards.11
There may be some instances in
which one clearing member controls
another clearing member or in which a
clearing member is under common
control with another clearing member.
The Commission proposes to treat such
affiliated clearing members as a single
entity for purposes of determining the
largest financial exposure because the
default of one affiliate could have an
impact on the ability of the other to
meet its financial obligations to the
DCO.12 However, to the extent that each
affiliated clearing member is treated as
a separate entity by the DCO, with
separate capital requirements, separate
guaranty fund obligations, and separate
potential assessment liability, the
Commission requests comment on
whether a different approach might be
warranted.
Separately, proposed Regulation
39.11(a)(2) would require a DCO to
maintain sufficient financial resources
to cover its operating costs for at least
one year, calculated on a rolling basis.
This standard is consistent with the
standard set forth in amended Core
Principle B. It is also consistent with
established accounting standards, under
which an entity’s ability to continue as
a going concern comes into question if
there is evidence that the entity may be
unable to continue to meet its
obligations in the next 12 months
without substantial disposition of assets
outside the ordinary course of business,
restructuring of debt, externally forced
11 In November 2004, the Task Force on Securities
Settlement Systems, jointly established by the
Committee on Payment and Settlement Systems
(CPSS) of the central banks of the Group of Ten
countries and the Technical Committee of the
International Organization of Securities
Commissions (IOSCO), issued its Recommendations
for Central Counterparties. Under Recommendation
5, a central counterparty must maintain sufficient
financial resources to withstand, at a minimum, a
default by the participant to which it has the largest
exposure in extreme but plausible market
conditions. However, the Commission notes that
CPSS and IOSCO are currently reviewing this
standard and it may be revised.
12 For example, the positions of each clearing
member would be margined separately and would
be stress tested separately. However, losses of each
would be aggregated and gains would not offset
losses.

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revisions of its operations, or similar
actions.13
2. Types of Financial Resources
a. Default Resources
Proposed Regulation 39.11(b)(1) lists
the types of financial resources that
would be available to a DCO to satisfy
the requirements of proposed
Regulation 39.11(a)(1): (1) The margin of
the defaulting clearing member; (2) the
DCO’s own capital; (3) the guaranty
fund deposits of the defaulting clearing
member and non-defaulting clearing
members; (4) default insurance; (5) if
permitted by the DCO’s rules, potential
assessments for additional guaranty
fund contributions on non-defaulting
clearing members; and (6) any other
financial resource deemed acceptable by
the Commission. A DCO would be able
to request an informal interpretation
from CFTC staff on whether or not a
particular financial resource may be
acceptable to the Commission.
In the event of a default by one of its
clearing members, a DCO would first
seize the margin of the defaulting
clearing member. If the margin were
insufficient to cure the default, the DCO
might use its own capital to cover the
shortfall. Currently, Commission
regulations do not prescribe capital
requirements for DCOs. The
Commission invites comment on
whether it should consider adopting
such requirements and if so, what those
requirements should be.
Clearing members also are typically
required to maintain a deposit, in the
form of cash and/or securities, in a
guaranty fund, which may be used by
the DCO to cover any loss sustained as
a result of the failure of a clearing
member to discharge its obligations to
the DCO. In the event of a default, the
DCO may draw on the defaulting
clearing member’s deposit to satisfy its
counterparty obligations. If the deposit
is insufficient, the DCO may draw on
the guaranty fund deposits of nondefaulting clearing members.
In addition, a DCO may have an
assessment power that allows it to
demand additional funds from nondefaulting clearing members, up to a
specified amount, if the guaranty fund
has been exhausted. The size of a
clearing member’s potential assessment
obligation is usually established by a
formula set forth in the DCO’s rules.
Unlike margin or a guaranty fund,
assessment powers are not resources on
13 See American Institute of Certified Public
Accountants Auditing Standards Board Statement
of Auditing Standards No. 59, The Auditor’s
Consideration of an Entity’s Ability to Continue as
a Going Concern, as amended.

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hand but a promise to pay. A clearing
member, however, may have a strong
financial incentive to pay an
assessment. If a clearing member failed
to pay its assessment obligation, that
failure would be treated as a default and
the clearing member would be subject to
liquidation of its positions and
forfeiture of the margin in its
proprietary account. Thus, in addition
to a potential general interest in
maintaining the viability of the DCO
going forward, a non-defaulting clearing
member may have a specific incentive
to pay an assessment depending on the
size and profitability of its positions and
the margin on deposit relative to the
size of the assessment.
No U.S. futures clearinghouse has
ever had to exercise its assessment
power. In light of the apparent low
probability of a default of such
magnitude as to require assessments, the
use of assessment power as a backstop
rather than increasing the size of
guaranty funds seems to have been an
efficient allocation of capital. The
growth in clearing of swaps, however,
creates new risks that the Commission
must evaluate.
The Commission is proposing that
DCOs put rules and procedures in place
to ensure timely payment of
assessments by clearing members. First,
each DCO must require its clearing
members to have the ability to meet an
assessment within the time frame of a
normal variation settlement cycle.
Second, each DCO must monitor, on a
continual basis, each clearing member’s
financial and operational capacity to
pay potential assessments.
As discussed below, the Commission
is proposing to limit the degree to which
assessment powers may be considered
to be an available financial resource.
The Commission invites comment on
whether these limits and requirements
are appropriate. More generally, the
Commission is also seeking comment on
whether assessment powers should be
considered to be a financial resource
available to satisfy the requirements of
proposed Regulation 39.11(a)(1).
b. Operating Resources
Proposed Regulation 39.11(b)(2) lists
the types of financial resources that
would be available to a DCO to satisfy
the requirements of proposed
Regulation 39.11(a)(2): (1) The DCO’s
own capital; and (2) any other financial
resource deemed acceptable by the
Commission. A DCO would be able to
request an informal interpretation from
CFTC staff on whether or not a
particular financial resource may be
acceptable to the Commission. The
Commission invites commenters to

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recommend particular financial
resources, and explain the basis, for
inclusion in the final regulation. In this
regard, the Commission notes that the
proposed rule does not specify that a
DCO must hold equity capital. The
Commission requests comment on
whether such a provision would be
appropriate.
c. Allocation of Resources
Proposed Regulation 39.11(b)(3)
would allow a DCO to allocate a
financial resource, in whole or in part,
to satisfy the requirements of either
proposed Regulation 39.11(a)(1) (default
risk) or proposed Regulation 39.11(a)(2)
(operating costs), but not both, and only
to the extent the use of that financial
resource is not otherwise limited by the
CEA, Commission regulations, the
DCO’s rules, or any contractual
arrangements to which the DCO is a
party. In the event that a default would
force a DCO to cease operations, the
DCO would need sufficient financial
resources to cover the default and
conduct an orderly wind down of its
business.
3. Computation of the Financial
Resources Requirement
Proposed Regulation 39.11(c)(1)
would require a DCO to perform stress
testing on a monthly basis in order to
make a reasonable calculation of the
financial resources it needs to meet the
requirements of proposed Regulation
39.11(a)(1). In the first instance, the
DCO would have reasonable discretion
in determining the methodology it uses
to make the calculation.14 Because
effective stress testing involves a great
deal of judgment, the Commission is not
proposing that DCOs test a particular
scenario. Rather, the proposed
regulation requires DCOs to take into
account both historical data and
hypothetical situations. (By definition, a
stress test using only historical data
would never cover a market move
setting a new record.) Within those
guidelines, DCOs would have discretion
in selecting scenarios, subject to
Commission review.
The Commission would review the
methodology and require changes as
appropriate. The methodology must
address any unique risks associated
with particular products, such as the
jump to default risk and compounding
effects of credit default swaps.
Because of the comprehensive nature
of the stress tests required for
14 This is consistent with DCO Core Principle A,
which gives a DCO ‘‘reasonable discretion in
establishing the manner in which it complies with
the core principles.’’ See Section 5b(c)(2)(A) of the
CEA, 7 U.S.C. 7a–1(c)(2)(A).

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determining the size of the financial
resources package, the Commission is
proposing that these tests be conducted
monthly. As will be discussed in a later
rulemaking,15 the Commission is likely
to require more frequent stress testing in
connection with DCO risk management
programs. Such tests would be
conducted for different purposes and
might use different inputs. The
Commission requests comment on
whether monthly tests are appropriate
for purposes of calculating required
financial resources.
Proposed Regulation 39.11(c)(2)
would require a DCO to make a
reasonable calculation each month of
the financial resources it needs to meet
the requirements of proposed
Regulation 39.11(a)(2). In the first
instance, the DCO would have
reasonable discretion in determining the
methodology it uses to make the
calculation. However, the Commission
may review the methodology and
require changes as appropriate.
4. Valuation of Financial Resources
Proposed Regulation 39.11(d)(1)
would require a DCO, no less frequently
than monthly, to calculate the current
market value of each financial resource
used to meet its obligations under
proposed Regulation 39.11(a). A DCO
would be required to perform the
valuation at other times as appropriate,
because market values may fluctuate
and proposed Regulation 39.11(a)
requires the DCO to be able to meet its
obligations on a rolling basis. When
valuing a financial resource, a DCO
would be required to reduce the value,
as appropriate, to reflect any market or
credit risk specific to that particular
resource, i.e., apply a haircut. The
Commission would permit each DCO to
exercise its discretion in determining
the applicable haircuts. However, such
haircuts would have to be evaluated on
a quarterly basis, would be subject to
Commission review, and would have to
be acceptable to the Commission.
Notwithstanding a DCO’s general
discretion in applying haircuts,
proposed Regulation 39.11(d)(2)(i)
would require a 30 percent haircut on
the value of a DCO’s assessment power.
This is because in the event of a default,
the defaulting clearing member would
not be able to pay its assessment and
other clearing members might also be
unable or unwilling to pay. Based on the
significant percentage of total margin
that may be attributable to a few of the
largest clearing members, failure to pay
15 The Commission will propose, at a later time,
additional regulations to implement Core Principle
D (risk management).

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assessments could approach the 30
percent level. The Commission invites
comment on whether this proposed
valuation of assessments is appropriate.
To further increase the likelihood that
the DCO will have resources
immediately available to meet a default,
the Commission is proposing that, in
calculating the financial resources
available to meet its obligations, a DCO
may only count the value of
assessments, after the haircut, to meet
up to 20 percent of the resources
requirement generated by the stress
testing. The Commission requests
comment on this restriction.
5. Liquidity of Financial Resources
In assessing the adequacy of a DCO’s
financial resources, the liquidity of
resources must be considered. For
example, the time span of an intra-day
settlement cycle (from the time
positions are marked to market until the
time clearing members are required to
pay) may be only a few hours. In the
event of a clearing member defaulting
on a payment to the DCO during the
intra-day settlement cycle, the DCO
would need access to liquid assets
easily convertible to cash. DCOs often
use committed lines of credit to provide
this liquidity.
Proposed Regulation 39.11(e)(1)
would require a DCO to have financial
resources sufficiently liquid to enable
the DCO to fulfill its obligations as a
central counterparty during a one-day
settlement cycle.
In particular, the proposed regulations
would require a DCO to have sufficient
capital in the form of cash to cover the
average daily settlement variation pay
per clearing member over the last fiscal
quarter. For purposes of this calculation,
if a clearing member had pays in both
its house and customer accounts, the
amount would be the sum of the two
pays. If the clearing member had a pay
in its house account and a collect in its
customer account, the amount would be
that of the house pay. If the clearing
member had collects in both of its
accounts, that day’s variation settlement
would not be included in the
calculation. The DCO would be
permitted to take into account a
committed line of credit or similar
facility for the purpose of meeting the
remainder of the liquidity requirement.
The Commission requests comment
on the proposed liquidity standards. In
particular, the Commission requests
comment on whether the liquidity
requirement should cover more than a
one-day cycle. The Commission also
requests comment on what standards
might be applicable to lines of credit.
For example, should the Commission

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require that there be a diversified set of
providers or that a line of credit have
same-day drawing rights?
Proposed Regulation 39.11(e)(2)
would require DCOs to maintain
unencumbered liquid financial assets in
the form of cash or highly liquid
securities, equal to six months’
operating costs. The Commission
believes that having six months’ worth
of unencumbered liquid financial assets
would give a DCO time to liquidate the
remaining financial assets it would need
to continue operating for the last six
months of the required one-year period.
If a DCO does not have six months’
worth of unencumbered liquid financial
assets, it may use a committed line of
credit or similar facility to satisfy this
requirement.
The Commission notes that a
committed line of credit or similar
facility is not listed in proposed
Regulations 39.11(b)(1) or 39.8(b)(2) as a
financial resource available to a DCO to
satisfy the requirements of proposed
Regulations 39.11(a)(1) and 39.11(a)(2),
respectively. A DCO may only use a
committed line of credit or similar
facility to meet the liquidity
requirements set forth in proposed
Regulations 39.11(e)(1) and 39.11(e)(2).
To the extent that a DCO relies on a
guaranty fund, adequate liquidity is
crucial. To address liquidity concerns,
proposed Regulation 39.11(e)(3)
provides that: (i) Assets in a guaranty
fund must have minimal credit, market,
and liquidity risks and must be readily
accessible on a same-day basis, (ii) cash
balances must be invested or placed in
safekeeping in a manner that bears little
or no principal risk, and (iii) letters of
credit are not a permissible asset for a
guaranty fund.
6. Reporting Requirements
Under proposed Regulation
39.11(f)(1), at the end of each fiscal
quarter, or at any time upon
Commission request, a DCO would be
required to report to the Commission: (i)
The amount of financial resources
necessary to meet the requirements set
forth in the regulation; and (ii) the value
of each financial resource available to
meet those requirements. The DCO
would have to include with its report a
financial statement, including the
balance sheet, income statement, and
statement of cash flows, of the DCO or
its parent company (if the DCO does not
have an independent financial
statement and the parent company’s
financial statement is prepared on a
consolidated basis). If one of the
financial resources a DCO is using to
meet the regulation’s requirements is a
guaranty fund, the DCO would also have

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to report the value of each individual
clearing member’s guaranty fund
deposit.
Proposed Regulation 39.11(f)(2)
requires a DCO to provide the
Commission with sufficient
documentation that explains both the
methodology it used to calculate its
financial requirements and the basis for
its determinations regarding valuation
and liquidity. The DCO also must
provide copies of any agreements
establishing or amending a credit
facility, insurance coverage, or other
arrangement that evidences or otherwise
supports its conclusions. The
sufficiency of the documentation would
be determined by the Commission in its
sole discretion.
A DCO would have 17 business
days16 from the end of the fiscal quarter
to file its report, but would also be able
to request an extension of time from the
Commission.
B. SIDCOs
As DCOs, SIDCOs would remain
subject to the requirements of Title VII
and the regulations thereunder, except
to the extent the Commission
promulgated higher standards pursuant
to Title VIII. With regard to Core
Principle B, the Commission is
proposing higher standards in two
respects, as described below.
1. Amount of Financial Resources
Required
Because the failure of a SIDCO to
meet its obligations would have a
greater impact on the financial system
than the failure of other DCOs, the
Commission is proposing that SIDCOs
be required to meet a higher standard.
Specifically, proposed Regulation
39.29(a) would require a SIDCO to
maintain sufficient financial resources
to meet its financial obligations to its
clearing members notwithstanding a
default by the two clearing members
creating the largest combined financial
exposure for the SIDCO in extreme but
plausible market conditions.
A fundamental premise of the DoddFrank Act is that more over-the-counter
(OTC) products must be brought into the
cleared environment. Although no U.S.
futures clearinghouse has ever had more
than one clearing member default at a
time, the size and complexity of the
OTC derivatives markets may increase
the chance that more than one clearing
member could default simultaneously.
Consequently, the Commission has
determined that SIDCOs should be
16 This filing deadline is consistent with the
deadline imposed on FCMs for the filing of monthly
financial reports. See 17 CFR 1.10(b).

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Federal Register / Vol. 75, No. 198 / Thursday, October 14, 2010 / Proposed Rules
subject to regulations that increase their
ability to contain the effects of such
defaults.
2. Valuation of Financial Resources
In order to add another layer of
protection for SIDCOs, proposed
Regulation 39.29(b) would require that a
SIDCO may not count the value of
assessments to meet the obligations
arising from a default by the clearing
member creating the single largest
financial exposure. This means that a
SIDCO would be required to hold a
greater percentage of its financial
resources in margin and the guaranty
fund than a DCO that is not a SIDCO.
However, because the Commission
believes that assessment powers can be
a capital efficient means of providing a
back-up source of funding, the
Commission is proposing to permit
SIDCOs to count the value of
assessments, after the 30 percent
haircut, to meet up to 20 percent of the
obligations arising from a default by the
clearing member creating the second
largest financial exposure. This is the
standard proposed for non-systemically
important DCOs in connection with the
largest potential exposure.
The Commission requests comment
on the proposed higher standards for
SIDCOs. In particular, the Commission
requests comment on the potential
competitive effects of imposing higher
standards on a subset of DCOs.
III. Technical Amendments
Proposed Regulation 140.94 would
allow the Commission to delegate the
authority to perform certain functions
that are reserved to the Commission
under proposed Regulation 39.11.
Specifically, the Director of the Division
of Clearing and Intermediary Oversight
would be given the authority to deem a
financial resource acceptable under
proposed Regulations 39.11(b)(1)(vi)
and (b)(2)(ii); to review methodology
and require changes under proposed
Regulations 39.11(c)(1) and (c)(2); to
request information under proposed
Regulation 39.11(f)(1); and to grant an
extension of the filing deadline for
financial reports in accordance with
proposed Regulation 39.11(f)(4).

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IV. Related Matters
A. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA)
requires that agencies consider whether
the rules 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

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impact.17 The rules proposed by the
Commission will affect only DCOs
(some of which will be designated as
SIDCOs). The Commission has
previously established certain
definitions of ‘‘small entities’’ to be used
by the Commission in evaluating the
impact of its regulations on small
entities in accordance with the RFA.18
The Commission has previously
determined that DCOs are not small
entities for the purpose of the RFA.19
Accordingly, the Chairman, on behalf of
the Commission, hereby certifies
pursuant to 5 U.S.C. 605(b) that the
proposed rules will not have a
significant economic impact on a
substantial number of small entities.
B. Paperwork Reduction Act
An agency may not conduct or
sponsor, and a person is not required to
respond to, a collection of information
unless it displays a currently valid
control number. OMB has not yet
assigned a control number to the new
collection. The Paperwork Reduction
Act of 1995 (PRA) 20 imposes certain
requirements on Federal agencies
(including the Commission) in
connection with their conducting or
sponsoring any collection of
information as defined by the PRA. This
proposed rulemaking would result in
new collection of information
requirements within the meaning of the
PRA. The Commission therefore is
submitting this proposal to the Office of
Management and Budget (OMB) for
review. If adopted, responses to this
collection of information would be
mandatory. The Commission will
protect proprietary information
according to the Freedom of Information
Act and 17 CFR Part 145, ‘‘Commission
Records and Information.’’ In addition,
section 8(a)(1) of the CEA strictly
prohibits the Commission, unless
specifically authorized by the CEA, from
making public ‘‘data and information
that would separately disclose the
business transactions or market
positions of any person and trade
secrets or names of customers.’’ The
Commission is also required to protect
certain information contained in a
government system of records according
to the Privacy Act of 1974, 5 U.S.C.
552a.
1. Information Provided by Reporting
Entities/Persons
The proposed regulations require each
respondent to file information with the
17 5

U.S.C. 601 et seq.
FR 18618 (Apr. 30, 1982).
19 See 66 FR 45605, 45609 (August 29, 2001).
20 44 U.S.C. 3501 et seq.
18 47

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Commission on a quarterly basis, which
would result in four annual responses
per respondent. Commission staff
estimates that each respondent would
expend 10 hours to prepare each filing
required under the proposed
regulations. Commission staff estimates
that it would receive filings from 12
respondents annually. Accordingly the
burden in terms of hours would in the
aggregate be 40 hours annually per
respondent and 480 hours annually for
all respondents.
Commission staff estimates that
respondents could expend up to $1,840
annually, based on an hourly wage rate
of $46, to comply with the proposed
regulations. This would result in an
aggregated cost of $22,080 per annum
(12 respondents × $1,840).
2. Information Collection Comments
The Commission invites the public
and other federal agencies to comment
on any aspect of the reporting and
recordkeeping burdens discussed above.
Pursuant to 44 U.S.C. 3506(c)(2)(B), the
Commission solicits comment in order
to: (i) Evaluate whether the proposed
collection of information is necessary
for the proper performance of the
functions of the Commission, including
whether the information will have
practical utility; (ii) evaluate the
accuracy of the Commission’s estimate
of the burden of the proposed collection
of information; (iii) determine whether
there are ways to enhance the quality,
utility, and clarity of the information to
be collected; and (iv) minimize the
burden of the collection of information
on those who are to respond, including
through the use of automated collection
techniques or other forms of information
technology.
Comments may be submitted directly
to the Office of Information and
Regulatory Affairs, by fax at (202) 395–
6566 or by e-mail at
[email protected]. Please
provide the Commission with a copy of
submitted comments so that all
comments can be summarized and
addressed in the final rule preamble.
Refer to the Addresses section of this
notice of proposed rulemaking for
comment submission instructions to the
Commission. A copy of the supporting
statements for the collections of
information discussed above may be
obtained by visiting RegInfo.gov. OMB
is required to make a decision
concerning the collection of information
between 30 and 60 days after
publication of this document in the
Federal Register. Therefore, a comment
is best assured of having its full effect
if OMB receives it within 30 days of
publication.

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C. Cost-Benefit Analysis
Section 15(a) of the CEA requires that
the Commission, before promulgating a
regulation under the CEA or issuing an
order, consider the costs and benefits of
its action. By its terms, Section 15(a)
does not require the Commission to
quantify the costs and benefits of a new
regulation or determine whether the
benefits of the rule outweigh its costs.
Rather, Section 15(a) simply requires
the Commission to ‘‘consider the costs
and benefits’’ of its action.
Section 15(a) 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,
competitiveness, and financial integrity
of futures markets; (3) 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, in its
discretion, 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
CEA.
The Commission has evaluated the
costs and benefits of the proposed
regulations in light of the specific
considerations identified in Section
15(a) of the CEA, as follows:
1. Protection of market participants
and the public. The proposed
regulations would require DCOs to
continually assess and monitor the
adequacy of their financial resources
under standards established by the
Commission. This would further the
goal of avoiding market disruptions and
financial losses to market participants
and the general public.
2. Efficiency and competition. The
proposed regulations would promote
financial strength and stability, thereby
fostering efficiency and a greater ability
to compete in the broader financial
markets. The proposed regulations
would reward efficiency insofar as
DCOs that operate efficiently would
have lower operating costs and therefore
would require fewer resources to
comply with the regulations.
3. Financial integrity of futures
markets and price discovery. The
proposed regulations are designed to
ensure that DCOs can sustain their
market operations and meet their
financial obligations to market
participants, thus contributing to the
financial integrity of the futures and
options markets as a whole. This, in

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turn, further supports the price
discovery and risk transfer functions of
such markets.
4. Sound risk management practices.
The proposed regulations, by setting
specific standards with respect to how
DCOs should assess, monitor, and report
the adequacy of their financial
resources, would contribute to their
maintenance of sound risk management
practices and further the goal of
minimizing systemic risk.
5. Other public considerations. As
highlighted by recent events in the
global credit markets, maintaining
sufficient financial resources is a critical
aspect of any financial entity’s risk
management system, and ultimately
contributes to the goal of stability in the
broader financial markets. Therefore,
the Commission believes it is prudent to
include financial resources
requirements for entities applying to
become or operating as DCOs.
Accordingly, after considering the five
factors enumerated in the CEA, the
Commission has determined to propose
the regulations set forth below.
List of Subjects in 17 CFR Parts 39 and
140
Commodity futures, Reporting and
recordkeeping requirements.
For the reasons stated in the
preamble, the Commission proposes to
amend 17 CFR parts 39 and 140 as
follows:
PART 39—DERIVATIVES CLEARING
ORGANIZATIONS
1. The authority citation for part 39 is
revised to read as follows:
Authority: 7 U.S.C. 7a–1 as amended by
Pub. L. 111–203, 124 Stat. 1376.

2. Add § 39.11 to read as follows:
§ 39.11

Financial resources requirements.

(a) General rule. A derivatives
clearing organization shall maintain
financial resources sufficient to cover its
exposures with a high degree of
confidence and to enable it to perform
its functions in compliance with the
core principles set out in section 5b of
the Act. A derivatives clearing
organization shall identify and
adequately manage its general business
risks and hold sufficient liquid
resources to cover potential business
losses that are not related to clearing
members’ defaults, so that the
derivatives clearing organization can
continue to provide services as an
ongoing concern. Financial resources
shall be considered sufficient if their
value, at a minimum, exceeds the total
amount that would:

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(1) Enable the derivatives clearing
organization to meet its financial
obligations to its clearing members
notwithstanding a default by the
clearing member creating the largest
financial exposure for the derivatives
clearing organization in extreme but
plausible market conditions; Provided
that if a clearing member controls
another clearing member or is under
common control with another clearing
member, the affiliated clearing members
shall be deemed to be a single clearing
member for purposes of this provision;
and
(2) Enable the derivatives clearing
organization to cover its operating costs
for a period of at least one year,
calculated on a rolling basis.
(b) Types of financial resources. (1)
Financial resources available to satisfy
the requirements of paragraph (a)(1)
may include:
(i) Margin of a defaulting clearing
member;
(ii) The derivatives clearing
organization’s own capital;
(iii) Guaranty fund deposits;
(iv) Default insurance;
(v) Potential assessments for
additional guaranty fund contributions,
if permitted by the derivatives clearing
organization’s rules; and
(vi) Any other financial resource
deemed acceptable by the Commission.
(2) Financial resources available to
satisfy the requirements of paragraph
(a)(2) may include:
(i) The derivatives clearing
organization’s own capital; and
(ii) Any other financial resource
deemed acceptable by the Commission.
(3) A financial resource may be
allocated, in whole or in part, to satisfy
the requirements of either paragraph
(a)(1) or paragraph (a)(2), but not both
paragraphs, and only to the extent the
use of such financial resource is not
otherwise limited by the Act,
Commission regulations, the derivatives
clearing organization’s rules, or any
contractual arrangements to which the
derivatives clearing organization is a
party.
(c) Computation of financial resources
requirement. (1) A derivatives clearing
organization shall, on a monthly basis,
perform stress testing that will allow it
to make a reasonable calculation of the
financial resources needed to meet the
requirements of paragraph (a)(1). The
derivatives clearing organization shall
have reasonable discretion in
determining the methodology used to
compute such requirements, provided
that the methodology must take into
account both historical data and
hypothetical scenarios. The Commission

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Federal Register / Vol. 75, No. 198 / Thursday, October 14, 2010 / Proposed Rules
may review the methodology and
require changes as appropriate.
(2) A derivatives clearing organization
shall, on a monthly basis, make a
reasonable calculation of its projected
operating costs over a 12-month period
in order to determine the amount
needed to meet the requirements of
paragraph (a)(2) of this section. The
derivatives clearing organization shall
have reasonable discretion in
determining the methodology used to
compute such projected operating costs.
The Commission may review the
methodology and require changes as
appropriate.
(d) Valuation of financial resources.
(1) At appropriate intervals, but not less
than monthly, a derivatives clearing
organization shall compute the current
market value of each financial resource
used to meet its obligations under
paragraph (a) of this section. Reductions
in value to reflect market and credit risk
(haircuts) shall be applied as
appropriate and evaluated on a monthly
basis.
(2) If assessments for additional
guaranty fund contributions are
permitted by the derivatives clearing
organization’s rules, in calculating the
financial resources available to meet its
obligations under paragraph (a)(1) of
this section:
(i) The derivatives clearing
organization shall have rules requiring
that its clearing members have the
ability to meet an assessment within the
time frame of a normal variation
settlement cycle;
(ii) The derivatives clearing
organization shall monitor, on a
continual basis, the financial and
operational capacity of its clearing
members to meet potential assessments;
(iii) The derivatives clearing
organization shall apply a 30 percent
haircut to the value of potential
assessments, and
(iv) The derivatives clearing
organization shall only count the value
of assessments, after the haircut, to meet
up to 20 percent of those obligations.
(e) Liquidity of financial resources.
(1) The derivatives clearing organization
shall effectively measure, monitor, and
manage its liquidity risks, maintaining
sufficient liquid resources such that it
can, at a minimum, fulfill its cash
obligations when due. The derivatives
clearing organization shall hold assets
in a manner where the risk of loss or of
delay in its access to them is minimized.
The financial resources allocated by the
derivatives clearing organization to meet
the requirements of paragraph (a)(1) of
this section shall be sufficiently liquid
to enable the derivatives clearing
organization to fulfill its obligations as

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a central counterparty during a one-day
settlement cycle. The derivatives
clearing organization shall have
sufficient capital in the form of cash to
meet the average daily settlement
variation pay per clearing member over
the last fiscal quarter. If any portion of
the remainder of the financial resources
is not sufficiently liquid, the derivatives
clearing organization may take into
account a committed line of credit or
similar facility for the purpose of
meeting this requirement.
(2) The financial resources allocated
by the derivatives clearing organization
to meet the requirements of paragraph
(a)(2) of this section must include
unencumbered, liquid financial assets
(i.e., cash and/or highly liquid
securities) equal to at least six months’
operating costs. If any portion of such
financial resources is not sufficiently
liquid, the derivatives clearing
organization may take into account a
committed line of credit or similar
facility for the purpose of meeting this
requirement.
(3)(i) Assets in a guaranty fund shall
have minimal credit, market, and
liquidity risks and shall be readily
accessible on a same-day basis;
(ii) Cash balances shall be invested or
placed in safekeeping in a manner that
bears little or no principal risk; and
(iii) Letters of credit shall not be a
permissible asset for a guaranty fund.
(f) Reporting requirements. (1) Each
fiscal quarter, or at any time upon
Commission request, a derivatives
clearing organization shall:
(i) Report to the Commission;
(A) The amount of financial resources
necessary to meet the requirements of
paragraph (a);
(B) The value of each financial
resource available, computed in
accordance with the requirements of
paragraph (d); and
(C) How the derivatives clearing
organization meets the liquidity
requirements of paragraph (e);
(ii) Provide the Commission with a
financial statement, including the
balance sheet, income statement, and
statement of cash flows, of the
derivatives clearing organization or of
its parent company; and
(iii) Report to the Commission the
value of each individual clearing
member’s guaranty fund deposit, if the
derivatives clearing organization reports
having guaranty funds deposits as a
financial resource available to satisfy
the requirements of paragraph (a)(1) of
this section.
(2) The calculations required by this
paragraph shall be made as of the last
business day of the derivatives clearing
organization’s fiscal quarter.

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63119

(3) The derivatives clearing
organization shall provide the
Commission with:
(i) Sufficient documentation
explaining the methodology used to
compute its financial resources
requirements under paragraph (a) of this
section,
(ii) Sufficient documentation
explaining the basis for its
determinations regarding the valuation
and liquidity requirements set forth in
paragraphs (d) and (e) of this section,
and
(iii) Copies of any agreements
establishing or amending a credit
facility, insurance coverage, or other
arrangement evidencing or otherwise
supporting the derivatives clearing
organization’s conclusions.
(4) The report shall be filed not later
than 17 business days after the end of
the derivatives clearing organization’s
fiscal quarter, or at such later time as the
Commission may permit, in its
discretion, upon request by the
derivatives clearing organization.
3. Add § 39.29 to read as follows:
§ 39.29

Financial resources requirements.

(a) General rule. Notwithstanding the
requirements of § 39.11(a)(1) of this part,
a systemically important derivatives
clearing organization shall maintain
financial resources sufficient to enable it
to meet its financial obligations to its
clearing members notwithstanding a
default by the two clearing members
creating the largest combined financial
exposure for the systemically important
derivatives clearing organization in
extreme but plausible market
conditions.
(b) Valuation of financial resources.
Notwithstanding the requirements of
§ 39.11(d)(2) of this part, if assessments
for additional guaranty fund
contributions are permitted by the
systemically important derivatives
clearing organization’s rules, in
calculating the financial resources
available to meet its obligations under
paragraph (a) of this section:
(1) The systemically important
derivatives clearing organization may
not count the value of assessments to
meet the obligations arising from a
default by the clearing member creating
the largest financial exposure for the
systemically important derivatives
clearing organization in extreme but
plausible market conditions; and
(2) The systemically important
derivatives clearing organization may
only count the value of assessments,
after the haircut set forth in
§ 39.11(d)(2)(iii) of this part, to meet up
to 20 percent of the obligations arising
from a default by the clearing member

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creating the second largest financial
exposure for the systemically important
derivatives clearing organization in
extreme but plausible market
conditions.
PART 140—ORGANIZATION,
FUNCTIONS, AND PROCEDURES OF
THE COMMISSION
4. The authority citation for part 140
continues to read as follows:
Authority: 7 U.S.C. 2 and 12a.

5. In § 140.94, revise paragraphs (a)(4)
and (a)(5) and add a new paragraph
(a)(6) to read as follows:
§ 140.94 Delegation of authority to the
Director of the Division of Clearing and
Intermediary Oversight.

(a) * * *
(4) All functions reserved to the
Commission in § 5.12 of this chapter,
except for those relating to nonpublic
treatment of reports set forth in § 5.12(i)
of this chapter;
(5) All functions reserved to the
Commission in § 5.14 of this chapter;
and
(6) All functions reserved to the
Commission in §§ 39.11(b)(1)(vi),
(b)(2)(ii), (c)(1), (c)(2), (f)(1), and (f)(4) of
this chapter.
*
*
*
*
*
Issued in Washington, DC, on October 1,
2010, by the Commission.
David A. Stawick,
Secretary of the Commission.
[FR Doc. 2010–25322 Filed 10–13–10; 8:45 am]
BILLING CODE P

DEPARTMENT OF VETERANS
AFFAIRS
38 CFR Parts 1 and 2
RIN 2009–AN72

Release of Information From
Department of Veterans Affairs
Records
Department of Veterans Affairs.
Proposed rule.

AGENCY:
ACTION:

The Department of Veterans
Affairs (VA) proposes to amend its
regulations governing the submission
and processing of requests for
information under the Freedom of
Information Act (FOIA) in order to
implement provisions of the E–FOIA
Act and the Openness in Government
Act, and to reorganize and clarify
existing regulations. The proposed
regulations would establish the
procedures and rules necessary for VA
to process requests for information

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SUMMARY:

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under the FOIA, including matters such
as how to file a request or appeal, how
requests for business information are
handled, and how issues regarding fees
are resolved. The intended effect of
these regulations is to implement
legislative changes made to the FOIA, as
noted above, and to provide the public
clear instructions and useful
information regarding the filing and
processing of FOIA requests.
DATES: Comments must be received on
or before December 13, 2010.
ADDRESSES: Written comments may be
submitted through http://
www.Regulations.gov/; by mail or handdelivery to the Director, Regulations
Management (02REG), Department of
Veterans Affairs, 810 Vermont Avenue,
NW., Room 1068, Washington, DC
20420; or by fax to (202) 273–9026.
Comments should indicate that they are
submitted in response to ‘‘RIN 2900–
AN72, Release of Information from
Department of Veterans Affairs
Records.’’ Copies of comments received
will be available for public inspection in
the Office of Regulation Policy and
Management, Room 1063B, between the
hours of 8 a.m. and 4:30 p.m., Monday
through Friday (except holidays). Please
call (202) 461–4902 for an appointment.
In addition, during the comment period,
comments may be viewed online
through the Federal Docket Management
System (FDMS) at http://
www.Regulations.gov/.
FOR FURTHER INFORMATION CONTACT:
Catherine Nachmann, Staff Attorney,
Office of the General Counsel (024),
Department of Veterans Affairs, 810
Vermont Avenue, NW., Washington, DC
20420, (202) 461–7684. (This is not a
toll free number.)
SUPPLEMENTARY INFORMATION: The FOIA,
codified at 5 U.S.C. 552, requires an
agency to publish public guidance
regarding its implementation of the
statute, such as rules of procedure and
substantive rules of general
applicability. The Privacy Act of 1974,
as amended, codified at 5 U.S.C. 552a,
requires an agency to publish its rules
and procedures implementing that
statute. Section 501(a) of title 38, U.S.C.,
authorizes the Secretary of Veterans
Affairs to prescribe rules and
regulations to carry out the laws
administered by VA, including when
information may be released from
claimant records under 38 U.S.C. 5701,
what activities fall within 38 U.S.C.
5705 regarding confidentiality of
medical quality assurance records,
whether and to whom information
pertaining to those activities may be
released, and when information may be
released from records covered by 38

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U.S.C. 7332 regarding the identity,
diagnosis, or treatment of drug abuse,
alcoholism or alcohol abuse, infection
with the human immunodeficiency
virus, and sickle cell anemia.
We propose to amend VA’s
regulations pertaining to release of
information under 5 U.S.C. 552. VA’s
current FOIA regulations are codified at
38 CFR 1.550 through 1.557, including
reserved §§ 1.558 and 1.559. This
proposed rule would implement the
FOIA in §§ 1.550 through 1.562. The
proposed rule would in large part cover
the same issues as are covered in VA’s
current regulations, such as how to
submit a request for records, how VA
addresses a request for records, and fees
for addressing record requests under the
FOIA. We propose to update these
regulations to accommodate current
means of communication with VA,
streamline the existing procedures
based on our experience administering
the FOIA, incorporate changes in the
procedural requirements of the FOIA
since promulgation of current
regulations, make VA’s procedures
easier for the public to understand, and
generally reorganize and renumber the
applicable provisions.
In addition, we propose to add new
provisions to explicitly implement the
E–FOIA Act, Public Law 104–231, and
the Openness in Government Act,
Public Law 110–175. For additional
resources on any of the procedural
requirements of the FOIA, E–FOIA Act,
or Openness in Government Act in
particular, see the detailed information
available at the U.S. Department of
Justice (DOJ) website. For example, a
copy of the FOIA can be located at
http://www.justice.gov/oip/amendedfoia-redlined.pdf. The current edition of
the VA FOIA Reference Guide can be
located at http://www.foia.va.gov/docs/
RequesterHandbook.pdf, and specific
information about implementing the
FOIA and its amendments can be found
in guidance issued by DOJ through its
FOIA Updates and FOIA Post
publications, located at http://
www.usdoj.gov/oip/foi-upd.htm and
http://www.justice.gov/oip/foiapost/
mainpage.htm.
Changes to 38 CFR Part 1
1.550 Purpose
Current § 1.550 is entitled ‘‘General’’
and provides a general statement of VA
policy regarding disclosure of
information to the extent permitted by
law, including when VA would
otherwise be authorized to withhold the
information, if the disclosure is for a
useful purpose or when disclosure will
not affect the proper conduct of official

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