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Regulatory Information
   “The new registration rules will require companies—whether headquartered in the U.S. or abroad—to make very significant decisions before they have the information necessary to evaluate the application of the CEA to their extraterritorial swap activities and determine the appropriate organizational structure for those activities,” the groups wrote in the letter submitted to the CFTC. “Legal entity restructuring is a costly, disruptive and time-consuming process, involving extensive re-documentation of client agreements, re-allocation of scarce capital, re-assignment or re-location of personnel as well as potentially extensive systems development and compliance infrastructure,” the groups warned. In addition to the FIA, the signatories included the Securities Industry and Financial Markets Association, The Clearing House, The Financial Services Roundtable, ABA Securities Association, and Institute of International Bankers.  Click Here for Comment Letter
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The Futures Industry Association submitted comments to the Commodity Futures Trading Commission on Jan. 17 related to the position limits rules that the agency adopted on Oct. 18, 2011. The final rules set limits for 28 physical commodity futures contracts as well as limits for swaps that are economically equivalent to such futures contracts , so called “referenced contracts.” The CFTC also set interim final position limit rules on spot month cash settled referenced contracts and asked for public comment on whether a different ratio or formula should be used to set these limits than the Commission used to set other position limits. The FIA letter addressed the interim rules. The FIA requested that the CFTC either withdraw the rules until it has adequate data or substantially modify them. The FIA recommended that “at a minimum” the CFTC should establish higher and less restrictive limits rather than “automatically utilizing the same percentage of deliverable supply formula for different contracts linked only by a common commodity.” In addition, the FIA recommended that the CFTC provide a six-month safe harbor transition period, that the CFTC permit netting in the spot-month between all economically equivalent referenced contracts including physical delivery and cash-settled contracts, and that the CFTC only require aggregation of positions in cash-settled referenced contracts based on common control. “Withdrawal of the position limits rules is the only action that will ensure the Commission does not impair liquidity, efficient price discovery, and the ability of market participants to hedge against risk at a particularly fragile time for the U.S. economy,” the FIA wrote. Click here for the comment letter |
The petition, currently under review by the Commodity Futures Trading Commission and the Securities and Exchange Commission, proposes to commingle credit default swaps held by customers, including broad-based index CDS, narrow-based index CDS and single-name CDS, as well as the funds posted by customers to margin these products, in a single customer omnibus account that is subject to section 4d(f) of the Commodity Exchange Act and Chapter 7 of the Bankruptcy Code. The ICE petition also asks for permission to calculate margin for the customer omnibus account on a portfolio margin basis, thus allowing margin offsets between index and single-name CDS. In a comment letter submitted on Dec. 21 to the CFTC and SEC, the FIA said it supports the petition because of clarifying changes made in the Bankruptcy Code by section 713 of the Dodd-Frank Act. That law amended the Securities Exchange Act to provide that cash and securities, including security based swaps, that are carried in a futures segregated account in accordance with an approved portfolio margining program will be subject to commodity broker liquidation provisions of Chapter 7 of the Bankruptcy Code. The FIA acknowledged in its letter that the association had raised concerns previously about the bankruptcy treatment of such commingled accounts, but said those concerns were addressed by the Dodd-Frank amendment, which removed “a major impediment to implementation of portfolio margining.” The FIA also said it agreed with ICE Clear Credit that a commingled portfolio margining account would allow the clearinghouse to provide its clearing members and their customers with “greater operational efficiencies, capital efficiency and a more comprehensive offering of products that can be cleared.” Click here for the comment letter |
Click Here for Comment Letter |
“Risk management best practices are continually evolving as markets and technology evolve,” the FIA said. “This is particularly true today, as the market structure for cleared swaps and the technology necessary to support these markets are uncertain at best. The Commission, therefore, should be hesitant to “freeze” the state of the art by imposing on market participants, directly or indirectly, a particular set of risk management controls. To do so may prevent certain enhancements and may stifle innovations that will make the markets safer.” Click Here for Comment Letter |
Trade Associations Urge U.S. Regulators to Exempt Most Inter-Affiliate Swaps from Dodd-Frank Rules (Sept. 8, 2011)The FIA joined with six other U.S. financial trade associations in filing a joint letter on the treatment of derivatives trades involving two affiliates of the same organization under the Dodd-Frank Act. The Sept. 8 letter described how inter-affiliate swaps are used by financial institutions and customers and urged the regulators to limit the application of the derivatives requirements of Dodd-Frank to these transactions. The letter suggested that regulators instead should generally exempt swaps between consolidated affiliates under common control. The letter was sent to the Commodity Futures Trading Commission, the Securities and Exchange Commission, the Federal Reserve and several other federal regulatory agencies.
Click Here for Comment Letter |
| FIA Seeks Guidance from CFTC Regarding Large Trader Reporting for Commodity Swaps (Aug. 26, 2011)The FIA filed a letter with the Commodity Futures Trading Commission on Aug. 26 seeking guidance on the large trader rules for physical commodity swaps. The FIA said that clearing firms will have to make significant changes to their systems in order to provide the CFTC with the full range of information required under these rules, and asked the CFTC to limit the range of data required during the first phase, which will start on Sept. 20. The letter identified 12 data fields that can be reported by using existing large trader reporting systems, and said that up to 79 “paired” commodity swaps traded through IntercontinentalExchange can be added to the 11 ICE swaps that are already reported through the existing large trader reporting systems. The letter asked the CFTC to confirm that this would be acceptable for the initial reports. Click here for the comment letter |
Click here for the comment letter |
| Trades Groups File Comment Letter on Capital Requirements for Swap Dealers and MSPs (July 7, 2011)The FIA joined with the International Swaps and Derivatives Association and the Securities Industry and Financial Markets Association in filing a comment letter with the Commodity Futures Trading Commission on July 7 regarding the agency’s proposed capital requirements for swap dealers and major swap participants. The letter expressed support for those aspects of the proposal that incorporate existing regulations from the CFTC as well as the Securities and Exchange Commission and the Federal Reserve Board. The letter objected to the proposed minimum capital requirements for swap dealers and MSPs that are futures commission merchants, the conditions for using models to calculate capital requirements, and the methodologies for capital requirements when models are not allowed. Click here for the comment letter |
| FIA Comments on Dodd-Frank Exemptive Order (July 1, 2011)The FIA joined with several other trade associations in commenting on a proposed exemptive order that will temporarily delay the effective date for certain Dodd-Frank provisions that would otherwise take effect on July 1. The July 1 letter asked the Commodity Futures Trading Commission to clarify certain aspects of the order and grant additional relief “to enhance legal certainty and ensure an orderly and coordinated implementation process.” Click here for the comment letter |
The supplemental letter addressed how compliance officers will “ensure compliance” as found in Section 731 of the Dodd Frank Act. Sifma and FIA stressed that this should be a test of taking reasonable steps to establish, maintain, review, modify and test the effectiveness of compliance policies. They suggested that compliance procedures may include procedures for escalating inadequate management responses to the appropriate level of senior management. The letter also discussed how the CCO’s could meet its duties to “resolve any conflicts of interest that may arise” and how this duty actually interrelates to the power to enforce compliance, which rests with a firm’s senior executives and supervisors. In addition, the letter addresses the annual report and certification. The group also urged the CFTC to harmonize its proposed rules with Rule 3130, set by the Financial Industry Regulatory Authority “to minimize confusion and the burden associated with multiple differing requirements.” Click Here for Comment Letter |
Under Dodd-Frank, any clearing organization located outside the U.S. that clears swaps for participants located in the U.S. may be required to be registered with the CFTC as a designated clearing organization, and any clearing member that clears a swap on behalf of U.S. participants may be required to register as a futures commission merchant. The CFTC has taken the view that the FCM registration requirements are mandated by provisions in the Dodd-Frank Act that will come into effect on July 16. The FIA suggested that the best approach to addressing this issue of extraterritorial impact would be for the CFTC to adopt a “Part 30” approach based on the current model for futures listed on foreign exchanges. In the absence of such a determination, the FIA requested no less than a 30-day exemption from the registration requirements for OTC energy transactions cleared through ICE Clear Europe and suggested that 90 days would be more appropriate. With respect to customer segregation requirements, the FIA noted that the CFTC is considering several models and has not yet finalized the rules on this matter. “FCMs and DCOs should not be required to guess which regulatory regime the Commission will adopt or to undertake to implement an interim scheme that may conflict with the rules the Commission ultimately elects to promulgate,” the FIA wrote. Click Here for FIA Petition |
| FIA’s Damgard Testifies at Dodd-Frank Hearing (May 25, 2011)FIA President John Damgard discussed some of the adverse consequences of the extraterritorial impact of the Dodd-Frank Act at a May 25 hearing of the House Agriculture Committee’s subcommittee on general farm commodities and risk management. Damgard focused on two specific examples: the financial and operational burdens caused by the requirement that foreign clearinghouses register with the CFTC in order to clear swaps traded by U.S. counterparties, and the costs of a position limit regime in U.S. markets that is not matched in other jurisdictions. Damgard also raised an issue with the rulemaking process as a whole, urging the CFTC to provide a 60-day comment period on the entire “mosaic” of proposed rules before they are finalized. Click Here for Oral Statement
Click Here for Written Testimony |
“The Commission should identify the specific problems the new anti-disruptive practices authority seeks to address,” the associations said. “The Commission has yet to identify any specific problems or concerns where its pre-Dodd-Frank authority was lacking.” The associations added that the CFTC has yet to provide a clear definition of what “disruptive practice” means. “Absent identification of specific characteristics, problems or concerns, the Commission should urge Congress to repeal the new authority,” FIA stated, warning that without the needed clarity, the provision could “chill” legitimate trading and market participation. Click here for the comment letter |
Further, the FIA urged the CFTC to confirm that associated persons of futures commission merchants would be exempt from being registered as an FCM if their activities are limited to submitting swaps transactions that were entered into between a swap dealer and its customers. The CFTC proposal would not require associated persons of swap dealers or major swap participants to register, in accordance with the Dodd-Frank Act. FIA agreed with the CFTC that the statute did not contemplate registration of these individuals. Click Here for FIA Comment Letter |
The groups urged the regulators to allow for adequate testing and outreach to customers. They also recommended that regulators prioritize data reporting, including the registration of swap data repositories, to better inform regulators of market activity when crafting future rulemaking. “The commissions will learn much about the full range of swap markets from the data collected by SDRs,” the groups wrote. The group suggested the new Dodd-Frank requirements be phased in based on the type of market participant and asset class. Within each asset class and type of market participant, regulators should prioritize reduction of systemic risk, such as the use of centralized clearing. “Implementation of requirements designed to achieve other goals, such as trade execution, should be phased in only once clearing has been successfully implemented,” the groups wrote. Finally, where different regulators will apply different rule sets to similar transactions, the groups recommended that regulators sequence implementation so the effectiveness of each rule set is coordinated. Click Here for Comment Letter |
Other groups that co-signed the letter were the ABA Securities Association, the Financial Services Roundtable, International Swaps and Derivatives Association and the Securities Industry and Financial Markets Association.FIA, ISDA and SIFMA made similar concerns in a January letter submitted to the Commodity Futures Trading Commission on its proposed conflicts of interest and governance rules. In November, the FIA recommended the SEC and CFTC withdraw or defer ownership restrictions, asserting such limits are not mandated by Dodd-Frank and could have unintended consequences. Click Here for Comment Letter |
Click here for the comment letter |
Click Here for the FIA Comment Letter |
| FIA President Testifies on Dodd-Frank Implementation (Feb. 15, 2011)Speaking before the House Agriculture Subcommittee on Risk Management, FIA President John Damgard called for a “measured” implementation of the derivatives reforms contained in the Dodd-Frank Act and described a number of problems with the rules proposed by the Commodity Futures Trading Commission. Oral Statement
Written Testimony |
| FIA , SIFMA Submit Comments on CFTC’s Whistleblower Proposal (Feb. 3, 2011)The Futures Industry Association has co-signed a Securities Industry and Financial Markets Association letter submitted Feb. 3 to the Commodity Futures Trading Commission responding to the agency’s proposed rule to implement the whistleblower provisions of the Dodd-Frank Act. In the letter, the associations said that it is critically important that whistleblower provisions of the Dodd-Frank Act not undercut internal corporate compliance reporting systems “which are vital to what financial regulators have recognized as the first and foremost line of defense.” SIFMA and the FIA also urged the CFTC to harmonize its whistleblower rules with the recent proposals drafted byf the Securities and Exchange Commission to encourage cooperation in enforcement matters and to incorporate the whistleblower programs of self-regulatory organizations. Click Here for SIFMA,FIA Comment Letter |
Click Here for the FIA Comment Letter |
Click Here for Joint FIA, SIFMA Comment Letter |
The associations offered a number of suggestions relating to the CFTC’s proposed rules regarding conflicts of interest related to research. They asked the CFTC to narrow the scope of the proposed rules and harmonize them with Rule 2711, a comparable rule issued by the National Association of Securities Dealers. The associations also asked the CFTC to allow communications between research departments and sales and trading personnel, citing a number of examples to show the benefits of allowing research analysts to gather market information from sales and trading personnel. The associations also commented on proposed rules regarding conflicts of interest related clearing services. The proposed rules would prohibit FCMs from permitting affiliated swap dealers or major swap participants from interfering with the FCM’s decision to provide clearing services to customers and would establish a number of specific requirements and “information partitions” between FCMs and affiliated dealers and MSPs. The associations argued that the proposed rules are “far broader” than the requirements of the Dodd-Frank Act and would restrict contacts between trading and clearing personnel in ways that would hurt customers and impair the firm’s ability to manage risks. The associations asked the CFTC to permit the involvement of trading business units in the establishment and support of customer relationships and asked the CFTC to clarify that the proposed restrictions would not apply to “control and support” functions such as compliance, operations and credit. The associations also asked that the CFTC to delegate oversight and enforcement of these rules to self-regulatory organizations, saying this would allow the requirements to keep up with industry practice. Click Here for the FIA Comment Letter |
“FIA accordingly believes that the Commission should use this opportunity to increase the transparency of the rulemaking processes,” the FIA said. To improve transparency of rulemaking, the FIA recommended that the CFTC publish a daily notice of all rule and product filings submitted by registered entities and all of the agency’s related actions. This would be similar to the Daily Digest published by the Securities and Exchange Commission. The FIA also recommend the CFTC require registered entities to include a concise explanation of the proposed rule or action that could be published in the Daily Digest with a hyperlink to the full text of the rule submission. “We are suggesting that the Commission begin a daily publication containing this information in lieu of a requirement that the rules be published in the Federal Register, as is the practice for similar rules in the securities industry,” the FIA said. “Immediate notice is, therefore, a far superior alternative to waiting several days for Federal Register publication of the rule or product filing.” Click Here for the FIA Comment Letter |
More generally, the FIA cautioned that the subject of clearinghouse financial resources is interconnected with other CFTC proposals under consideration, including alternative models for the segregation of customer funds. “As the Commission moves forward on these proposals, FIA urges the Commission to bear in mind that these subjects are interconnected,” the letter said. “Much like the individual legs of a stool, it is important that any rules that may be adopted by the Commission that affect DCOs’ ability to discharge their responsibilities in the event of a clearing member default remain in balance at all times.” Click Here for the FIA Comment Letter |
The 11 associations also urged the two agencies to adjust the rulemaking process so that the definitions of swap dealers and major swap participants come before the requirements that depend on those definitions. In their letter they noted that the CFTC has proposed rules that would apply to swap dealers and major swap participants before the terms have been addressed, and said this makes it difficult for many firms to know whether they should submit comments on particular rules. The associations therefore recommended extending the deadlines for commenting on proposed rules so that they are at least no earlier than the deadlines for commenting on the proposed definitions. “We are committed to working with the SEC and CFTC to develop and implement the rules mandated by Dodd-Frank and we strongly support completion of these efforts in a prompt and timely fashion,” said the 11 associations. “We urge the Commissions to use their discretion to propose, adopt and implement rules in a sequence that will achieve these important goals.” The 11 associations are: American Bankers Association, ABA Securities Association, The Clearing House Association, Financial Services Forum, Financial Services Roundtable, Futures Industry Association, Institute of International Bankers, International Swaps and Derivatives Association, International Swaps and Derivatives Association, Investment Company Institute, Managed Funds Association, and Securities Industry and Financial Markets Association. Click Here for the Comment Letter |
The two trade associations expressed support for the CFTC's goals and supported the proposed requirement that any investment securities must be "highly liquid." The associations expressed opposition to the proposed restrictions, however, and objected in particular to the proposed ban on investments in foreign sovereign debt and securities issued by government sponsored enterprises that are not guaranteed by the U.S. government, the proposed limits on investments in money market mutual funds, and the proposed ban on repos and reverse repos with affiliated banks and broker-dealers. Click Here for the Comment Letter |
FIA said it supported aspects of the CFTC/SEC proposals that would require at least 35% of the board of directors of a clearinghouse or SEF be public directors, but highlighted the risks of requiring that risk management committees be comprised largely of outside directors. “FIA is concerned that public directors and customer representatives, who can provide meaningful knowledge and insight when serving on the board of a DCO or SEF, will typically lack the specialized knowledge and hands-on experience with margin and other risk systems,” FIA wrote.
Click Here for FIA Comment Letter |
Click Here for ISDA/FIA Letter |
| CFTC Holds Fifth Meeting on Dodd-Frank Rules (Nov. 19, 2010)The Commodity Futures Trading today is holding a public meeting to consider the fifth series of proposed rules under the Dodd-Frank Act. The proposals included rules relating to the segregation of customer collateral for uncleared swaps, swap data repositories, real-time reporting of swap transaction data, data recordkeeping and the treatment of securities in a portfolio margining account at a futures broker. The CFTC also is considering a request comment on several models for individually segregating customer collateral associated with cleared swaps. Click Here for Background Information on the CFTC Rulemakings |
| CFTC Considers Another Round of Dodd-Frank Rulemakings: Background Documents Released (Nov. 10, 2010)The Commodity Futures Trading Commission is holding a public meeting today to consider several proposed rules as required by the Dodd-Frank law. These rules address such issues as the registration of foreign boards of trade, conflicts of interest for swap dealers and futures commission merchants, the duties of swap dealers and major swap participants, whistleblower incentives and the designation of chief compliance officers. Please find below a series of explanatory fact sheets and Q&A sheets that were prepared by the CFTC staff as background material for these rule-makings. Click here for the documents |
| CFTC Moves Forward on Multiple Dodd-Frank Rulemakings (Oct. 27, 2010)The Commodity Futures Trading Commission held a public meeting on Oct. 26 to consider a number of rulemakings related to the Dodd-Frank Act. These rulemakings will lead to rules governing such issues as the determination of what products should be subject to mandatory clearing, the prevention of “disruptive” trading practices, and the review of rule changes at exchanges and clearinghouses. The CFTC also considered one proposed rule regarding the investment of customer funds that is not mandated by Dodd-Frank. Click Here for CFTC Statements and Fact Sheets on Proposed Rules |
“We are not arguing for agricultural swaps to be subject to any lesser degree of regulation than other swaps,” the FIA said. “To the contrary, we believe agricultural swaps should be subject to all of the same requirements and restrictions as other types of swaps. Under Dodd-Frank and the CFTC’s regulations, virtually all derivatives that were previously traded over-the-counter will in the future be traded on regulated platforms and cleared through regulated clearinghouses, subject to public reporting, disclosure and other protections. As a result, any concerns that might previously have existed with respect to agricultural swaps should not prevent them from being regulated in the same manner as other swaps.” Click Here for the FIA Comment Letter |
The groups requested a meeting with FinCEn, the SEC and the Commodity Futures Trading Commission to begin a dialogue about providing revised guidelines that are tailored to the specific and varied operations of securities and futures firms. Click here for the comment letter |
The report identifies several principles for addressing DMA risk issues and recommends specific implementation of solutions by direct access participants, clearing firms and exchanges. “An underlying principle of the report is that risk management of direct access market participants is the shared responsibility of exchanges, clearing firms, and the direct access firms themselves,” the FIA wrote in its letter to the SEC. The report specifically recommends that exchanges establish certain risk controls and apply those risk controls across all trading firms, ensuring a level playing field in terms of the latency of trading and avoiding creation of competitive pressures among clearing firms and trading firms to reduce the latency of trading by applying fewer risk controls. The report was drafted by a working group consisting of representatives from U.S and European derivatives exchanges, clearing firms and trading firms. The report is the latest in a series of FIA initiatives that promote best practices in the listed derivatives markets worldwide. Click here for the comment letter |
The FIA noted that legislation currently pending in Congress would require over-the-counter derivatives market participants to submit “a substantial amount of confidential information” to the CFTC. The FIA also noted that the CFTC would be authorized to disclose this information to self-regulatory organizations in the futures industry. The FIA said that it is therefore “particularly important” that the CFTC adopt an agency-wide policy statement to guide the staff in determining which confidential information to release and for which purpose. Another concern raised by the FIA related to the use of confidential information gathered by exchanges in the course of their examinations of futures commission merchants. The FIA noted that such information may include "confidential proprietary and business information that an FCM would not otherwise disclose" and urged the CFTC to limit the ability of exchange self-regulatory arms to share this information with other divisions of the exchange. Though the FIA generally supported the proposed amendments, the one exception was the proposed repeal of Rule 140.73(b), which currently provides that the CFTC’s enforcement director or the director’s designee must approve the disclosure of confidential information to other federal, state and foreign regulatory authorities. “To the extent confidential information is disclosed to other governmental authorities, both within and outside of the U.S., it is essential that one office at the Commission act as a central clearinghouse to make an initial determination that the requesting agency is acting within the scope of its authority and to assure that only the information that is responsive to the request is being disclosed,” the FIA letter said. Click here for the letter |
The Futures Industry Association submitted a comment letter to the Commodity Futures Trading Commission on Jan. 15, 2010 responding to a CFTC proposal that would authorize a bankruptcy trustee to operate a commodity brokerage business for a limited period of time. The FIA agreed that the proposed authorization would be appropriate when dealing with insolvent firms, as in the case of Lehman Brothers Inc. But the FIA said it could not support the proposal in its present form for three main reasons. First, the FIA urged the CFTC to address this issue in the context of a “comprehensive review” of the bankruptcy code and the CFTC’s rules in this area. Second, the FIA urged the CFTC to work with the Securities and Exchange Commission on “uniform procedures” to guide a trustee of an insolvent firm that is registered as both a broker-dealer and a futures commission merchant. Third, the FIA recommended that the proposal should provide more detailed guidance to a trustee and CFTC staff. Click Here for the PDF |
The letter noted that broker-dealers are only one of many different types of financial institutions that are permitted to act as counterparties to retail customers with respect to over-the-counter retail forex transactions. These include futures commission merchants, forex dealers, banks and insurance companies. By proposing to fix a leverage limitation that is significantly lower than market convention, the proposed rule effectively would prohibit dually registered entities from competing in this line of business, the letter argued. “We respectfully submit that such a result is both self-defeating and unsound as a matter of regulatory policy,” the letter said. Instead the SEC and FINRA should pursue a “coordinated regulatory approach” with the other regulatory agencies with authority in this area, namely the Commodity Futures Trading Commission and the National Futures Association. “Such a coordinated regulatory approach would also provide a more level playing field, thereby assuring that no category of registrant…would have a competitive advantage,” the letter said. Click Here for the Comment Letter |
| FIA Submits Comments on Changes to COT ReportsThe Futures Industry Association on Oct. 1, 2009 submitted a comment letter to the Commodity Futures Trading Commission in connection with the recent amendments to the commitment of traders report. FIA suggested that the Commission add information to the report clarifying trading included in each category and provide a review process of categories assigned to market participants. Additionally, FIA expressed strong support for the long-standing Commission policy of requesting public comment whenever possible before taking action that affects industry participants. Click Here for Complete Text |
| FIA, SIFMA Comment on FINCEN Proposals on Information Sharing Procedures The Futures Industry Association and the Securities Industry and Financial Markets Association co-signed a Dec. 16 letter to the Treasury Department's Financial Crimes Enforcement Network. The two associations commented jointly on proposals regarding the expansion of special information sharing procedures that are intended to deter money laundering and terrorist activity. While FIA and SIFMA support efforts to combat terrorism and money laundering, they cautioned that the proposals could go beyond the intent of current law. Click Here for the Comment Letter (1.5 MB) |
| FIA Comments on Treasury Derivatives Proposal in Testimony before House Agriculture Committee Speaking before the House Agriculture Committee on Sept. 17, 2009, FIA President John Damgard outlined several concerns with the Treasury Department’s proposal for derivatives regulation and urged the committee to “prune back” the proposal in many areas. Among other things, Damgard supported authorizing the CFTC to apply position limits to OTC derivatives that affect price discovery, but opposed forcing all standardized swaps onto trading platformsHe also warned that “fuzzy definitions” of standardization will create legal risk and assailed the Treasury proposal for attempting to impose U.S. regulatory standards on foreign futures exchanges. Click Here for the Text of the FIA's Statement |
Click Here for the Text of the FIA's Comment Letter |
| FIA Comments on the Treatment of Cleared-Only Derivatives The Futures Industry Association on Sept. 14, 2009 filed comment letters with the Commodity Futures Trading Commission regarding two regulatory proposals related to the clearing of over-the-counter derivatives. One letter responded to proposed amendments to the CFTC's bankruptcy rules and the other to a petition by CME Group to commingle margins on credit default swaps with margins on exchange-traded futures and options. Click Here for FIA Response to CFTC Proposal
Click Here for FIA Response to CME Petition |
FIA Statement on CFTC/SEC Regulatory Harmonization On Sept. 2, 2009, the Futures Industry Association participated in a joint meeting of the Commodity Futures Trading Commission and the Securities and Exchange Commission to discuss harmonizing the federal securities laws and the Commodity Exchange Act. The FIA gave a brief statement outlining its views on the differences in regulation that could be harmonized as well as those that should be maintained.
Click Here for the FIA Statement |
Click Here for the PDF |
The FIA letter opposed several other proposed amendments, however. In particular, the FIA letter objected to the proposed increase in the percentage used in calculating the risk-based capital requirements for FCMs from 8% to 10%. The FIA letter also expressed strong opposition to requiring a joint FCM/broker-dealer to maintain adjusted net capital equal to the sum of the firm’s CFTC and SEC capital requirements, rather than the greater of the two requirements as the rule currently provides. The FIA letter warned that these latter changes would increase by “hundreds of millions of dollars” the capital requirements that each of the larger FCMs would face and could harm competition by encouraging the further concentration of customer funds in a handful of FCMs. Click here for the PDF |
Click Here for Comment Letter |
“While we believe it is important that the CFTC has adequate resources, we strongly urge you to reject the proposed transaction tax,” Damgard and Walter said in their letter. “At a time when the public is looking for greater transparency and improved confidence in U.S. financial markets, we do not believe that now is the time to punish market participants who choose to use the regulated and transparent U.S. exchange markets.” Click here for the PDF |
| FIA Submits Comments on IOSCO’s Report on Direct Electronic AccessThe Futures Industry Association on May 26, 2009 submitted comments to the International Organization of Securities Commissions regarding its consultation paper on direct electronic access. The comments covered a number of issues, including minimum customer standards, the importance of legally binding agreements, the delegation of access privileges, customer identification, pre- and post-trade information, and risk systems and controls. The FIA highlighted some of the findings in its September 2007 joint study with the Futures and Options Association on risk controls, and emphasized that futures commission merchants rather than regulators are best situated to determine appropriate risk management for their business. Click here for more information |
| CFTC Adopts Final Definition of Public DirectorThe Commodity Futures Trading Commission on April 27 adopted a final definition of "public director" for the acceptable practices section of the Commodity Exchange Act. The action completes a long-running effort by the CFTC to improve the governance of U.S. futures exchanges, an initiative strongly supported by the FIA. |
FIA Responds to CFTC Proposal to Clarify Seg Funds ObligationsThe Futures Industry Association filed a comment letter with the Commodity Futures Trading Commission on March 23, 2009 regarding a CFTC proposal to clarify the obligations incurred by depository banks when accepting customer funds. The FIA said it “generally supports” the proposed regulations, but asked the CFTC to provide more time for the industry to comply with the regulations. The obligations are spelled out in acknowledgement letters provided by depositories to futures commission merchants and designated clearing organizations, and changing the terms of these letters “is frequently a lengthy process,” the FIA said. To streamline the process, the FIA recommended that the CFTC support an industry-wide effort to develop a standardized acknowledgement letter and also consider electronic filing.
 Click here for full .pdf version
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“As the Commission’s Acceptable Practice makes plain, any potential director with a relationship to the DCM or its members that could affect the independent judgment of that director should not be a public director,” the FIA said. “FIA believes the Acceptable Practice for Core Principle 15 will achieve its goal of strengthening self-regulation in the futures industry consistent with the public interest. We look forward to the adoption of the proposed amendments and the implementation of the Acceptable Practice.” Click here for full .pdf version |
| FIA Opposes FINRA’s Proposed Leverage Limitation for Retail ForexThe FIA filed a comment letter with the Financial Industry Regulatory Authority on Feb. 20, 2009, to express its opposition to a proposed “leverage limitation” on retail foreign exchange trading. The proposed rule would apply to registered broker-dealers that engage in off-exchange forex transactions with retail customers. The FIA noted that most large futures commission merchants are either registered as broker-dealers or affiliated with broker-dealers and therefore may be affected by the proposed rule. The FIA said the proposed leverage limitation would be “far lower” than necessary and would effectively ban broker-dealers from this line of business. The FIA also noted that the proposed rule would run counter to the judgment of Congress, as expressed in the Commodity Futures Modernization Act of 2000, and urged FINRA to coordinate with other regulators with jurisdiction in this area. Click here for full .pdf version |
| GAO Issues Regulatory Restructuring ReportThe Government Accountability Office, the research and investigative arm of the U.S. Congress, released a report on Jan. 8, 2009 that highlights the weaknesses of the fragmented regulatory system for U.S. financial services industry. The report does not propose any specific changes but instead puts forward a framework for assessing proposals to restructure the financial regulatory system. The report is likely to guide members of Congress as they consider how to modernize the U.S. financial regulatory system in the coming months. http://www.gao.gov/new.items/d09216.pdf |
Washington, D.C. – January 5, 2009 – The Futures Industry Association today submitted a comment letter to the Commodity Futures Trading Commission on proposed rules for trading away from the centralized market. The FIA expressed support for the CFTC’s effort to provide a regulatory framework for the adoption of block trades by U.S. exchanges, but expressed opposition to several provisions in the proposed rules and the accompanying regulatory guidance that would restrict this type of trading or would create uncertainty about the CFTC’s policies in this area. The FIA emphasized that it has long supported the adoption of block trade procedures at futures exchanges that address the need of institutional customers to effect certain transactions off a centralized market. The FIA noted with appreciation that the CFTC’s proposed guidance on core principle 9 incorporated responses to a number of the FIA’s comments on previous versions of this guidance, citing in particular the CFTC’s adoption of a more flexible test for determining the appropriate minimum size of a block trade. The FIA said, however, that it continued to oppose the proposed guidance in its entirety because of the potential for increased uncertainty in the marketplace. In particular, the FIA warned that certain provisions in the proposed guidance could cause some market participants to fear that the CFTC has changed its policy on transitory EFPs, and asked the CFTC to provide assurance that the policy has not been changed if the agency decides to adopt the proposed guidance. With respect to the proposed rule amendments, the FIA said it was “troubling” that the proposals would restrict the authority of exchanges to permit block trades between affiliates. The FIA said that the proposed conditions would be “considerably more restrictive” than those currently in place on several exchanges, and noted that the CFTC issued the proposal without offering any evidence of abuse under the exchanges’ existing rules. For the PDF version of the letter please click here |
For the Inspector General reports click Here |
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FIA Comments on FTC Market Manipulation RulemakingOn June 23, 2008, FIA along with the CME Group, NYMEX and MFA filed a joint comment letter with the Federal Trade Commission which addressed the FTC's implementation of section 811 of the Energy Independence and Security Act of 2007. Section 811 gives the FTC antimanipulation authority over wholesale purchases and sales in crude oil, gasoline and petroleum distillates. The FTC must adopt rules prohibiting certain misconduct to implement its authority. Our letter urged the FTC to respect CFTC exclusive jurisdiction over futures markets and to coordinate its anti-manipulation rules and enforcement efforts in the wholesale cash markets with those of the CFTC.
Click here for full .pdf version of letter
Click here for full .pdf version of Memorandum of Law
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| FIA Urges Indian Government to Drop Proposed Tax on Commodity Futures TransactionsWASHINGTON, D.C.-April 23, 2008-The Futures Industry Association today released the text of a letter sent to the Indian government that expressed strong opposition to the recently proposed transaction tax on commodity futures. The letter was sent to Prime Minister Manmohan Singh, Minister of Finance P. Chidambaram, Minister of Agriculture Sharad Pawar and other senior government officials as well as key members of Parliament. In the letter, FIA President John Damgard described the "negative consequences" that typically flow from such proposed taxes, and warned that the proposed tax could result in driving trading volume to foreign exchanges and hampering the future growth of India's commodity futures exchanges. |
| Futures Industry Association Security Agreement Assignment of Hedging Account (or “Security Agreement” Industry Standard)The FIA’s Law and Compliance Executive Committee has adopted the attached Security Agreement Assignment of Hedging Account (“security agreement”) as a proposed industry standard to be used when a Client (“Debtor”) must grant to a third party (“Secured Party”) a security interest in Client’s futures account (“Account”) held at a futures commission merchant (“Commodity Intermediary”). The names of the parties and other wording used in this explanation and the Agreement have been intentionally used in order to be consistent with relevant UCC terms. |
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FIA Publishes Survey of DMA Risk Management PracticesOn Dec. 3, 2007, the Futures Industry Association published a six-page “profile” on the practices used by exchanges and futures commission merchants to monitor and manage the risks of clients that access exchanges directly. The paper summarized the practices in place at six exchanges: the Chicago Board of Trade, the Chicago Mercantile Exchange, Eurex, IntercontinentalExchange, Liffe and the New York Mercantile Exchange.
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| FIA Objects to CME Petition for Exemption on Behalf of China's CFETSThe Futures Industry Association filed a comment letter with the Commodity Futures Trading Commission on Oct. 9, 2007 regarding a petition filed by the CME Group on behalf of the China Foreign Exchange and Interbank Trading System, an arm of China's central bank. The petition asks the CFTC to allow CFETS to become a "super clearing member" of the CME Group and clear foreign exchange and interest rate futures transactions without having to register as a futures commission merchant with the CFTC. The FIA's comment letter objected to the granting of such a petition, saying that this would undermine the principle of "fair competition" and would "adversely affect the ability of the Commission and the CME to discharge their responsibilities." |
| FIA Files Comment Letter with U.K.’s FSA Regarding Proposed Telephone Recording RequirementThe FIA filed a comment letter with the Financial Services Authority on Aug. 3 expressing opposition to a proposed requirement that all telephone conversations be recorded. |
| FIA Files Brief in Supreme Court Case Involving FuturesThe FIA filed an "amicus curiae" brief on July 19 urging the Supreme Court to reverse a lower court ruling in Klein & Co. Futures Inc. vs. Board of Trade of the City of New York Inc., et al. |
| Anti-Money Laundering: FIA Receives Guidance on Application of Customer Identification Rules to Give-Up ArrangementsIn response to a request from the FIA, the Commodity Futures Trading Commission and the Financial Crimes Enforcement Network, the anti-money laundering arm of the U.S. Treasury Department, on April 19 issued guidance clarifying the application of customer identification requirements to give-up arrangements. The guidance confirmed that CIP requirements apply only to the clearing broker in a give-up transaction, not to the executing broker. The guidance was developed through extensive consultation with representatives of the futures industry. The FIA thanks the members of the FIA Law & Compliance division for their years of work on this initiative. View the CFTC press release View the FIA letter to the CFTC |
| FIA Files Brief with Supreme Court in Klein CaseThe FIA filed an "amicus curiae" brief on April 18 urging the Supreme Court to take up the case Klein & Co. Futures Inc. vs. Board of Trade of the City of New York Inc., et al. The FIA’s brief argues that the Second Circuit "clearly erred" in reaching a decision that deprives futures commission merchants of a private right of action against registered entities such as exchanges. "That error affects the interests not only of the parties to this case, but of the entire futures industry, by exposing futures commission merchants to substantial financial harm resulting from bad faith misconduct by registered entities without any remedy," the FIA’s brief stated. Brief of Amicus Curiae FIA In Support of Petitioner
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House Passes Hedge Fund Study BillThe U.S. House of Representatives has approved a bill that would require the President's Working Group on Financial Markets to study the impact of the hedge fund industry on financial markets.
» H.R. 6079, "Hedge Fund Study Act" |
In a June 5, 2006 letter, FinCen addressed how the correspondent account rule applies to to FCMs acting as executing brokers and clearing brokers in give-up arrangements. FinCen has stated that a FCM operating as the carrying broker - and not a FCM operating as an executing broker - is subject to compliance with the due diligence provisions of the correspondent account rule. FinCen also states that in situations where an IB introduces an account of a foreign financial institution to an FCM, the FCM executes an account agreement directly with the foreign financial institution and accepts margin and funds to secure trades, thereby establishing a "formal relationship" with the introduced foreign financial institution. Therefore, the FCM is subject to compliance with the due diligence provisions of the correspondent accounts rules for these introduced accounts. FinCen also states that it does not view the solicitation or acceptance of orders alone as sufficient to make IBs subject to the correspondent account rule. However, the letter suggests that administering or managing a correspondent account for a foreign financial institution by performing services beyond solicitation or acceptance or orders would subject IBs to the correspondent account rules. Regarding the application of the correspondent account private banking rules, FinCen states that when an FCM imposes minimum aggregate account requirements of not less than $1 million on an introduced account for a non-US person and assigns an officer, employee or agent to act as a liaison between the FCM and the beneficial owner or owners of the introduced account the introduced account will be considered a private banking account of the FCM subjecting the FCM to compliance with the due diligence provisions of the private banking rule. Response from FinCENJune 5, 2006May 5, 2006 FIA/SIA Letters to the Financial Crimes Enforcement Network regarding the Final Rule for Section 312 of the USA Patriot Act.
Rule 312 Comment Letter Mar. 06, 2006Rule 312 Comment Letter Mar. 03, 2006Rule 312 Comment Letter Feb. 23, 2006
Federal Register, March 30, 2006: http://www.fincen.gov/71fr16040_1506_aa29.pdf |
Such a tax, the groups argued in a joint March 2 letter to Congress, would "significantly reduce the vital liquidity on U.S. futures exchanges" and create "an enormous incentive" for trading activity to migrate to foreign futures exchanges or into over-the-counter markets. The coalition also questioned whether the proposed tax would actually raise the anticipated revenue, and pointed out that the industry already underwrites the costs of self-regulatory programs at the exchanges as well as the $35 million annual budget of the National Futures Association.
The letter was sent to the House and Senate leadership, the House and Senate agriculture committees, the House and Senate agriculture appropriations subcommittees, the House and Senate budget committees, and the delegations from the following states: Illinois, New York, Kansas, Minnesota and Missouri.
The proposed transaction tax was ultimately rejected by Congress and was not put into effect.
» Transaction Tax Letter
» Feb. 7 Press Release
» Budget 2007: CFTC |
Testifying on the panel on composition of SRO boards of directors, Damgard reiterated the FIA's proposed standard that the board be comprised of at least 50% non-industry (or independent) directors and stated that "by sharing power with objective and intelligent decision-makers who have no stake in the game, U.S. exchanges will show the kind of strength and self-confidence that has always been their hallmark." For the panel discussing alternative regulatory structures, the FIA's prepared statement suggested that SROs create formal regulatory oversight committees comprised of non-industry directors to be responsible for the exchange's self-regulatory activities. "The 'ROC' should be empowered to select compliance personnel, supervise their activities and determine their compensation," Damgard said. "It is vitally important that the ROC’s self-regulatory staff be independent of management for the SRO's business operations. The ROC also would be charged with selecting the members of exchange disciplinary panels."
Additional topics discussed at the roundtable included SRO transparency and disclosure and SRO disciplinary committees. FIA board members Jeffrey Jennings, managing director and global head of futures, Lehman Brothers; and Michael Schaefer, managing director, Citigroup Global Markets; also particpated in the roundtable.
FIA prepared statements:
» Panel 1
» Panel 2
» FIA Comment Letter
» CFTC Opening Remarks
» Comment Letter on SRO Roundtable
» Transcript for SRO Hearing |
"By concluding that a commodity broker does not have the power to combine or 'net' the sub-accounts when a customer is in receivership, the receiver insists on disaggregating what the industry regards as an integrated whole--based on both practice and applicable law," the brief stated. "In this case, the receiver would have the court ignore these long-established practices and the law in favor of cherrypicking only the gains and foisting the customer's losses back on the commodity broker."
The district court is hearing a case filed by the Commodity Futures Trading Commission against Philadelphia Alternative Asset Management, a hedge fund that allegedly hid severe losses from its customers. Man Financial was PAAM's broker and held two sub-accounts for the fund. Last June, the court took control of the fund and appointed a receiver. In response to a court order, Man Financial liquidated the open positions in PAAM's accounts and paid the net balance to the receiver. The receiver objected to the fact that Man Financial offset the positive balance in one sub-account with the negative balance in the other sub-account, and filed a motion to have Man Financial held in contempt. The Joint Audit Committee and the National Futures Association also filed amicus briefs. The court will most probably issue a decision on this issue in mid March.
» FIA Amicus Brief |
The House also approved a controversial amendment aimed at providing "transparency" to the natural gas markets. The amendment charges the CFTC with preventing and detecting manipulation of the natural gas markets, outlines increased record keeping requirements for large traders operating on the exchanges, and increases the civil and criminal penalties for violations of CFTC anti-manipulation rules. The amendment was opposed by the Federal Reserve and the Treasury Department as well as a coalition of financial services trade associations, including the FIA. Federal Reserve Chairman Alan Greenspan, in a Dec. 13 letter to Congress, warned that the amendment contained "rather vague" language that could be read to require the CFTC to conduct surveillance of cash markets and over-the-counter derivatives, and would broaden the CFT's record-keeping and reporting requirements beyond futures.
The bill will not become law until approved by the Senate. The Senate Agriculture Committee approved a version of the bill in July, and is working with the Senate Banking Committee on a compromise. Floor action on the Senate bill has not been scheduled yet.
» Goodlatte Statement on Passage of HR 4473
» Text of Bill as Approved by the House
» CFTC Letter to Oxley
» Federal Reserve Letter to Oxley
» Treasury Letter to Oxley
» Coalition Letter Opposing Natural Gas Amendment
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FIA President John Damgard Testifies Before Senate Banking CommitteeFIA President John Damgard testified on September 8 at a Senate Banking Committee hearing on the reauthorization of the Commodity Futures Trading Commission. He addressed four main issues: off-exchange retail foreign currency transactions; security futures; SRO transparency and governance; and competition among exchanges and clearinghouses.
» Statement on Reauthorization of the CFTC |
Greenspan Letter on Natural Gas LegislationFederal Reserve Board chairman Alan Greenspan comments to Congressman John R. Kuhl on H.R. 1638, the Commodities Exchange Improvement Act of 2005.
» Greenspan Letter |
President's Working Group Recommends CEA Amendments to CongressThe President's Working Group on Financial Markets ("PWG") on Nov. 3 recommended several changes to the Commodity Exchange Act. The recommended changes, which were drafted in response to Congressional requests, cover the CFTC's jurisdiction in foreign currency trading, portfolio margining for security futures and security options, and the trading of futures on debt security indexes and foreign security indexes. The recommended changes are intended for consideration as part of the legislation to reauthorize the CFTC. The PWG consists of the Treasury Department, the Federal Reserve, the Securities and Exchange Commission and the CFTC.
» PWG Letter to Chairman Oxley
» Text of Amendments |
"Currently, firms trying to do transatlantic business face a myriad of confusing, inconsistent and conflicting regulatory requirements.," said John Damgard, President, Futures Industry Association. "Regulatory simplification and harmonisation, as we have proposed here, would have the benefits of lowering the cost of doing business and increasing competition on both sides of the Atlantic. This should result in better service for the many institutions trading equities and equity derivatives in our two markets". |
Senate Agriculture Committee CFTC Reauthorization HearingThe Senate Agriculture Committee held a "mark-up" hearing on Thursday, July 21 for the legislation reauthorizing the Commodity Futures Trading Commission. The bill was redrafted late on Wednesday, July 20, 2005, to limit the scope of the more controversial provisions of the bill. In the new draft, the fraud provision was limited to forex markets, although the Senate is still considering widening the provision to all commodities. At the hearing, Senate Agriculture Chairman Saxby Chambliss indicated that the bill is a “placeholder” and that the industry, CFTC, President’s Working Group on Financial Markets and the Senate Banking Committee should continue to work on the language. The Senate Banking Committee has announced that it will hold hearings in September.
» Senate Bill
» PWG Letter
» Joint Trade Association Letter |
» Legislative Proposals for Reauthorization
» Cover Letter to House Agriculture Committee |
| Sharon Brown-Hruska Speaks at FIA ConferenceIn a March 17 speech at the FIA’s annual International Futures Industry Conference in Boca Raton, Fla., Sharon-Brown-Hruska, the acting chairman of the Commodity Futures Trading Commission, reviewed the priority issues that she hopes Congress will address during CFTC reauthorization, and hinted that the CFTC has a favorable view of the proposed phase two of the Eurex-Clearing Corp. linkage. |
| International Regulators Discuss Risk-Based Supervision in Boca RatonFinancial services regulators from 19 countries attended a closed-door meeting to discuss “risk-based supervision” on March 16 in Boca Raton, Fla., according to the Commodity Futures Trading Commission, the host of the meeting. Panelists addressed how risk-based supervision models are applied to markets and firms, what types of general oversight are necessary components of risk-based supervision models, what risks should be in the model, and the differences in how risk-based supervision is applied to financial and physical commodity markets, the CFTC said in a press release. The countries represented were: the Bahamas, Canada, France, Germany, Hong Kong, Indonesia, Ireland, Israel, Italy, Japan, Korea, Mexico, the Netherlands, Singapore, Spain, Taiwan, Turkey, the U.K., and the U.S. |
FIA and MFA file motion to intervene in the TT v eSpeed litigationThe trade associations moved to intervene for the limited purpose of opening the proceedings and securing access to certain pleadings filed under a "restricted" designation by both Trading Technologies and eSpeed.
» Motion to Intervene
» Supporting Memorandum |
“In my view, duplicative and prescriptive regulation is neither necessary nor well-suited to address the problems being experienced in the energy sector, and instead may exacerbate a liquidity shortage in the energy complex by unnecessarily imposing costs on industry participants, and creating regulatory and legal uncertainty,” Brown-Hruska said. “As a result, in our effort to squelch illegal behavior, we may end up unwittingly nurturing it by encouraging noncompetitive, illiquid markets. In my view, the true enemy of manipulation and market power is competition and liquid markets.” |
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