Section 2(i) of the Commodity Exchange
Act (“CEA”) provides the Commission) with express authority over
activities outside the United States relating to swaps when certain
conditions are met. Specifically, section 2(i) provides that the
swaps provisions of the CEA enacted by Title VII (“Title VII”) of
the Wall Street Transparency and Accountability Act of 2010
(“Dodd-Frank Act”) (including any rule prescribed or regulation
promulgated under the CEA) do not apply to activities outside the
United States (“U.S.”) unless such activities have a “direct and
significant connection with activities in, or effect on, commerce
of the United States” or they contravene Commission rules or
regulations as are necessary or appropriate to prevent evasion of
the swaps provisions of the CEA enacted under Title VII. The
Commission is proposing a rule (“Proposed Rule”) addressing the
cross-border application of certain swaps provisions of the CEA, as
added by Title VII. The Proposed Rule defines key terms for
purposes of applying these CEA’s swaps provisions to cross-border
transactions, addresses the cross-border application of the
registration thresholds and certain requirements (“Group A and
Group B Requirements”) applicable to swap dealers and major swap
participants, and establishes a formal process for requesting
comparability determinations for such requirements from the
Commission. As part of the Proposed Rule, the Commission is
proposing to permit certain swap dealers and major swap
participants registered with the Commission (“swap entities”) to
comply with a foreign jurisdiction’s swap standards in lieu of the
Group A and Group B Requirements in certain cases, provided that
the Commission determines that such foreign standards are
comparable to such requirements. The Proposed Rule would implement
a process pursuant to which the Commission would conduct these
comparability determinations, including outlining procedures for
initiating such determinations. A comparability determination could
be requested by swap entities that are eligible for substituted
compliance for the Group A and Group B Requirements, their trade
associations, and foreign regulatory authorities meeting certain
requirements. Applicants seeking a comparability determination
would be required to furnish certain information to the Commission
that provides a comprehensive explanation of the foreign
jurisdiction’s relevant swap standards, including how they might
differ from the corresponding requirements in the CEA and the Group
A and Group B Requirements and how, notwithstanding such
differences, the foreign jurisdiction’s swap standards achieve
comparable outcomes to those of the Commission. Once a
comparability determination is made for a jurisdiction, it would
apply for all entities or transactions in that jurisdiction to the
extent provided in the comparability determination, as approved by
the Commission and subject to any conditions specified by the
Commission. The information collection would be necessary for the
Commission to consider whether the foreign jurisdiction’s relevant
swap standards are comparable to the Commission’s
requirements.
The regulations associated with
this new collection information request are designed to, consistent
with section 2(i) of the CEA, provide for a substituted compliance
process for the Group A and Group B Requirements.
On behalf of this Federal agency, I certify that
the collection of information encompassed by this request complies
with 5 CFR 1320.9 and the related provisions of 5 CFR
1320.8(b)(3).
The following is a summary of the topics, regarding
the proposed collection of information, that the certification
covers:
(i) Why the information is being collected;
(ii) Use of information;
(iii) Burden estimate;
(iv) Nature of response (voluntary, required for a
benefit, or mandatory);
(v) Nature and extent of confidentiality; and
(vi) Need to display currently valid OMB control
number;
If you are unable to certify compliance with any of
these provisions, identify the item by leaving the box unchecked
and explain the reason in the Supporting Statement.
Form 8-T Registration of Swap Dealers and Major Swap Participants
(2019) 0072 Supporting Stmt -SD CB Proposal 11-21-19.docx
Comparability Determinations for the Group A and B Requirements