Rule2024-15094
Order Granting Conditional Substituted Compliance in Connection With Certain Capital and Financial Reporting Requirements Applicable to Nonbank Swap Dealers Subject to Regulation by the United Kingdom Prudential Regulation Authority
Primary source
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Published
July 18, 2024
Issuing agencies
Commodity Futures Trading Commission
Abstract
On February 5, 2024, the Commodity Futures Trading Commission issued a notice and request for comment on an application submitted by the Institute of International Bankers, International Swaps and Derivatives Association, and Securities Industry and Financial Markets Association requesting that the Commission determine that registered nonbank swap dealers organized and domiciled in the United Kingdom may comply with certain capital and financial reporting requirements under the Commodity Exchange Act and Commission regulations by being subject to, and complying with, corresponding capital and financial reporting requirements of the United Kingdom Prudential Regulation Authority. The Commission also solicited public comment on a proposed comparability determination and related order providing for the conditional availability of substituted compliance in connection with the application. The Commission is adopting the proposed order with certain modifications and clarifications to address comments. The final order provides that a nonbank swap dealer organized and domiciled in the United Kingdom may satisfy the capital requirements under the Commodity Exchange Act and Commission applicable Commission regulations and the financial reporting rules under the Commodity Exchange Act and applicable Commission regulations by complying with certain specified United Kingdom laws and regulations and conditions set forth in the order.
Full Text
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<title>Federal Register, Volume 89 Issue 138 (Thursday, July 18, 2024)</title>
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[Federal Register Volume 89, Number 138 (Thursday, July 18, 2024)]
[Rules and Regulations]
[Pages 58535-58572]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-15094]
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COMMODITY FUTURES TRADING COMMISSION
17 CFR Chapter I
Order Granting Conditional Substituted Compliance in Connection
With Certain Capital and Financial Reporting Requirements Applicable to
Nonbank Swap Dealers Subject to Regulation by the United Kingdom
Prudential Regulation Authority
AGENCY: Commodity Futures Trading Commission.
ACTION: Order.
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SUMMARY: On February 5, 2024, the Commodity Futures Trading Commission
issued a notice and request for comment on an application submitted by
the Institute of International Bankers, International Swaps and
Derivatives Association, and Securities Industry and Financial Markets
Association requesting that the Commission determine that registered
nonbank swap dealers organized and domiciled in the United Kingdom may
comply with certain capital and financial reporting requirements under
the Commodity Exchange Act and Commission regulations by being subject
to, and complying with, corresponding capital and financial reporting
requirements of the United Kingdom Prudential Regulation Authority. The
Commission also solicited public comment on a proposed comparability
determination and related order providing for the conditional
availability of substituted compliance in connection with the
application.
The Commission is adopting the proposed order with certain
modifications and clarifications to address comments. The final order
provides that a nonbank swap dealer organized and domiciled in the
United Kingdom may satisfy the capital requirements under the Commodity
Exchange Act and Commission applicable Commission regulations and the
financial reporting rules under the Commodity Exchange Act and
applicable Commission regulations by complying with certain specified
United Kingdom laws and regulations and conditions set forth in the
order.
DATES: This determination was made by the Commission on June 24, 2024.
FOR FURTHER INFORMATION CONTACT: Amanda L. Olear, Director, 202-418-
5283, <a href="/cdn-cgi/l/email-protection#72131d1e17130032111406115c151d04"><span class="__cf_email__" data-cfemail="b8d9d7d4ddd9caf8dbdeccdb96dfd7ce">[email protected]</span></a>; Thomas Smith, Deputy Director, 202-418-5495,
<a href="/cdn-cgi/l/email-protection#3f4b4c52564b577f5c594b5c11585049"><span class="__cf_email__" data-cfemail="3347405e5a475b73505547501d545c45">[email protected]</span></a>; Rafael Martinez, Associate Director, 202-418-5462,
<a href="/cdn-cgi/l/email-protection#f0829d918284999e958ab093968493de979f86"><span class="__cf_email__" data-cfemail="d9abb4b8abadb0b7bca399babfadbaf7beb6af">[email protected]</span></a>; Liliya Bozhanova, Special Counsel, 202-418-6232,
<a href="/cdn-cgi/l/email-protection#2f434d4055474e4140594e6f4c495b4c01484059"><span class="__cf_email__" data-cfemail="dcb0beb3a6b4bdb2b3aabd9cbfbaa8bff2bbb3aa">[email protected]</span></a>; Joo Hong, Risk Analyst, 202-418-6221,
<a href="/cdn-cgi/l/email-protection#1c767473727b5c7f7a687f327b736a"><span class="__cf_email__" data-cfemail="bed4d6d1d0d9feddd8cadd90d9d1c8">[email protected]</span></a>; Justin McPhee, Risk Analyst, 202-418-6223;
<a href="/cdn-cgi/l/email-protection#fe94939d968e9b9bbe9d988a9dd0999188"><span class="__cf_email__" data-cfemail="c8a2a5aba0b8adad88abaebcabe6afa7be">[email protected]</span></a>, Market Participants Division; Commodity Futures
Trading Commission, Three Lafayette Centre, 1155 21st Street NW,
Washington, DC 20581.
SUPPLEMENTARY INFORMATION: The Commodity Futures Trading Commission
(``Commission'' or ``CFTC'') is issuing an order providing that
registered nonbank swap dealers (``SDs'') organized and domiciled in
the
[[Page 58536]]
United Kingdom (``UK'') may satisfy certain capital and financial
reporting requirements under the Commodity Exchange Act (``CEA'') \1\
and Commission regulations \2\ by being subject to, and complying with,
comparable capital and financial reporting requirements under relevant
UK laws and regulations, subject to certain conditions set forth in the
order below. The order is based on the proposed comparability
determination and related proposed order published by the Commission on
February 5, 2024,\3\ as modified in certain aspects to address comments
and to clarify its terms.
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\1\ 7 U.S.C. 1 et seq. The CEA may be accessed through the
Commission's website, <a href="http://www.cftc.gov">www.cftc.gov</a>.
\2\ 17 CFR Chapter I. Commission regulations may be accessed
through the Commission's website, <a href="http://www.cftc.gov">www.cftc.gov</a>.
\3\ Notice of Proposed Order and Request for Comment on an
Application for Capital Comparability Determination Submitted on
Behalf of Nonbank Swap Dealers Subject to Capital and Financial
Reporting Requirements of the United Kingdom and Regulated by the
United Kingdom Prudential Regulation Authority, 89 FR 8026 (Feb. 5,
2024) (``2024 Proposal'').
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I. Introduction
A. Regulatory Background--CFTC Capital, Margin, and Financial Reporting
Requirements for Swap Dealers and Major Swap Participants
Section 4s(e) of the CEA \4\ directs the Commission and
``prudential regulators'' \5\ to impose capital requirements on SDs and
major swap participants (``MSPs'') registered with the Commission.\6\
Section 4s(e) also directs the Commission and prudential regulators to
adopt regulations imposing initial and variation margin requirements on
swaps entered into by SDs and MSPs that are not cleared by a registered
derivatives clearing organization (``uncleared swaps'').
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\4\ 7 U.S.C. 6s(e).
\5\ The term ``prudential regulators'' is defined in the CEA to
mean the Board of Governors of the Federal Reserve System (``Federal
Reserve Board''); the Office of the Comptroller of the Currency; the
Federal Deposit Insurance Corporation; the Farm Credit
Administration; and the Federal Housing Finance Agency. 7 U.S.C.
1a(39).
\6\ Subject to certain exceptions, the term ``swap dealer'' is
generally defined as any person that: (i) holds itself out as a
dealer in swaps; (ii) makes a market in swaps; (iii) regularly
enters into swaps with counterparties as an ordinary course of
business for its own account; or (iv) engages in any activity
causing the person to be commonly known in the trade as a dealer or
market maker in swaps. 7 U.S.C. 1a(49).
The term ``major swap participant'' is generally defined as any
person who is not an SD, and: (i) subject to certain exclusions,
maintains a substantial position in swaps for any of the major swap
categories as determined by the Commission; (ii) whose outstanding
swaps create substantial counterparty exposure that could have
serious adverse effects on the financial stability of the U.S.
banking system or financial markets; or (iii) is a financial entity
that: (a) is highly leveraged relative to the amount of capital it
holds and that is not subject to capital requirements established by
an appropriate Federal banking agency; and (b) maintains a
substantial position in outstanding swaps in any major swap category
as determined by the Commission. 7 U.S.C. 1a(33).
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Section 4s(e) applies a bifurcated approach with respect to the
above Congressional directives, requiring each SD and MSP that is
subject to the regulation of a prudential regulator (``bank SD'' and
``bank MSP,'' respectively) to meet the minimum capital requirements
and uncleared swaps margin requirements adopted by the applicable
prudential regulator, and requiring each SD and MSP that is not subject
to the regulation of a prudential regulator (``nonbank SD'' and
``nonbank MSP,'' respectively) to meet the minimum capital requirements
and uncleared swaps margin requirements adopted by the Commission.\7\
Therefore, the Commission's authority to impose capital requirements
and margin requirements for uncleared swap transactions extends to
nonbank SDs and nonbank MSPs, including nonbanking subsidiaries of bank
holding companies regulated by the Federal Reserve Board.\8\
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\7\ 7 U.S.C. 6s(e)(2).
\8\ 7 U.S.C. 6s(e)(1) and (2).
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The prudential regulators implemented section 4s(e) in 2015 by
amending existing capital requirements applicable to bank SDs and bank
MSPs to incorporate swap transactions into their respective bank
capital frameworks, and by adopting rules imposing initial and
variation margin requirements on bank SDs and bank MSPs that engage in
uncleared swap transactions.\9\ The Commission adopted final rules
imposing initial and variation margin obligations on nonbank SDs and
nonbank MSPs for uncleared swap transactions on January 6, 2016.\10\
The Commission also approved final capital requirements for nonbank SDs
and nonbank MSPs on July 24, 2020, which were published in the Federal
Register on September 15, 2020 with a compliance date of October 6,
2021 (``CFTC Capital Rules'').\11\
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\9\ Margin and Capital Requirements for Covered Swap Entities,
80 FR 74840 (Nov. 30, 2015).
\10\ Margin Requirements for Uncleared Swaps for Swap Dealers
and Major Swap Participants, 81 FR 636 (Jan. 6, 2016).
\11\ Capital Requirements of Swap Dealers and Major Swap
Participants, 85 FR 57462 (Sept. 15, 2020). On April 30, 2024, the
Commission amended the capital and financial reporting requirements
to revise certain financial reporting obligations, among other
changes. See Capital and Financial Reporting Requirements for Swap
Dealers and Major Swap Participants, 89 FR 45569 (May 23, 2024). The
amendments have limited impact on nonbank SDs covered by this order.
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Section 4s(f) of the CEA addresses SD and MSP financial reporting
requirements.\12\ Section 4s(f) authorizes the Commission to adopt
rules imposing financial condition reporting obligations on all SDs and
MSPs (i.e., nonbank SDs, nonbank MSPs, bank SDs, and bank MSPs).
Specifically, section 4s(f)(1)(A) provides, in relevant part, that each
registered SD and MSP must make financial condition reports as required
by regulations adopted by the Commission.\13\ The Commission's
financial reporting obligations were adopted with the Commission's
nonbank SD and nonbank MSP capital requirements, and also had a
compliance date of October 6, 2021 (``CFTC Financial Reporting
Rules'').\14\
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\12\ 7 U.S.C. 6s(f).
\13\ 7 U.S.C. 6s(f)(1)(A).
\14\ 85 FR 57462.
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B. Commission Capital Comparability Determinations for Non-U.S. Nonbank
Swap Dealers and Non-U.S. Nonbank Major Swap Participants
Commission Regulation 23.106 establishes a substituted compliance
framework whereby the Commission may determine that compliance by a
non-U.S. domiciled nonbank SD or non-U.S. domiciled nonbank MSP with
its home country's capital and financial reporting requirements will
satisfy all or parts of the CFTC Capital Rules and all or parts of the
CFTC Financial Reporting Rules (such a determination referred to as a
``Comparability Determination'').\15\ The Commission's capital adequacy
and financial reporting requirements are designed to address and manage
risks
[[Page 58537]]
that arise from a firm's operation as an SD or MSP. Given their
functions, both sets of requirements and rules must be applied on an
entity-level basis (meaning that the rules apply on a firm-wide basis,
irrespective of the type of transactions involved) to effectively
address risk to the firm as a whole. The availability of such
substituted compliance is conditioned upon the Commission issuing a
Comparability Determination finding that the relevant foreign
jurisdiction's capital adequacy and financial reporting requirements
for non-U.S. nonbank SDs and/or non-U.S. nonbank MSPs are comparable to
the corresponding CFTC Capital Rules and CFTC Financial Reporting
Rules. The Commission would issue a Comparability Determination in the
form of an order (``Comparability Order'').\16\
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\15\ 17 CFR 23.106. Commission Regulation 23.106(a)(1) provides
that a request for a Comparability Determination may be submitted by
a non-U.S. nonbank SD or non-US nonbank MSP, a trade association or
other similar group on behalf of its SD or MSP members, or a foreign
regulatory authority that has direct supervisory authority over one
or more non-US nonbank SDs or non-U.S. nonbank MSPs. However,
Commission regulations also provide that any non-U.S. nonbank SD or
non-U.S. nonbank MSP that is dually-registered with the Commission
as a futures commission merchant (``FCM'') is subject to the capital
requirements of Commission Regulation 1.17 (17 CFR 1.17) and may not
petition the Commission for a Comparability Determination. 17 CFR
23.101(a)(5) and (b)(4), respectively. Furthermore, substituted
compliance is not available to non-U.S. bank SDs and non-U.S. bank
MSPs with respect to their respective financial reporting
requirements under Commission Regulation 23.105(p). Commission
Regulation 23.105(p), however, permits non-U.S. bank SDs and non-
U.S. bank MSPs that do not submit financial reports to a U.S.
prudential regulator to file with the Commission a statement of
financial condition, certain regulatory capital information, and
Schedule 1 of Appendix C to Subpart E of Part 23 of the Commission's
regulations prepared and presented in accordance with the accounting
standards permitted by the non-U.S. bank SD's or non-U.S. bank MSP's
home country regulatory authorities. 17 CFR 23.105(p)(2).
\16\ 17 CFR 23.106(a)(3).
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The Commission's approach for conducting a Comparability
Determination with respect to the CFTC Capital Rules and the CFTC
Financial Reporting Rules is a principles-based, holistic approach that
focuses on assessing whether the applicable foreign jurisdiction's
capital and financial reporting requirements have comparable objectives
with, and achieve comparable outcomes to, corresponding CFTC
requirements.\17\ The Commission's assessment is not a line-by-line
evaluation or comparison of a foreign jurisdiction's regulatory
requirements with the Commission's requirements.\18\ In performing the
analysis, the Commission recognizes that jurisdictions may adopt
differing approaches to achieving regulatory objectives and outcomes,
and the Commission will focus on whether the foreign jurisdiction's
capital and financial reporting requirements are based on regulatory
objectives, and produce regulatory outcomes, that are comparable to the
Commission's in purpose and effect, and not whether they are comparable
in every aspect or contain identical elements.
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\17\ 17 CFR 23.106(a)(3)(ii). See also 85 FR 57462 at 57521.
\18\ 85 FR 57462 at 57521.
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A person requesting a Comparability Determination is required to
submit an application to the Commission containing: (i) a description
of the objectives of the relevant foreign jurisdiction's capital
adequacy and financial reporting requirements applicable to entities
that are subject to the CFTC Capital Rules and the CFTC Financial
Reporting Rules; (ii) a description (including specific legal and
regulatory provisions) of how the relevant foreign jurisdiction's
capital adequacy and financial reporting requirements address the
elements of the CFTC Capital Rules and CFTC Financial Reporting Rules,
including, at a minimum, the methodologies for establishing and
calculating capital adequacy requirements and whether such
methodologies comport with international standards; and (iii) a
description of the ability of the relevant foreign regulatory authority
to supervise and enforce compliance with the relevant foreign
jurisdiction's capital adequacy and financial reporting requirements.
The applicant must also submit, upon request, such other information
and documentation as the Commission deems necessary to evaluate the
comparability of the capital adequacy and financial reporting
requirements of the foreign jurisdiction.\19\
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\19\ 17 CFR 23.106(a)(2).
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The Commission will consider an application for a Comparability
Determination to be a representation by the applicant that the laws and
regulations of the foreign jurisdiction that are submitted in support
of the application are finalized and in force, that the description of
such laws and regulations is accurate and complete, and that, unless
otherwise noted, the scope of such laws and regulations encompasses the
relevant non-U.S. nonbank SDs and/or non-U.S. nonbank MSPs domiciled in
the foreign jurisdiction.\20\ Each non-U.S. nonbank SD or non-U.S.
nonbank MSP that seeks to rely on a Comparability Order is responsible
for determining whether it is subject to the foreign laws and
regulations found comparable in the Comparability Order. A non-U.S.
nonbank SD or non-U.S. nonbank MSP that is not legally required to
comply with a foreign jurisdiction's laws and/or regulations determined
to be comparable in a Comparability Order may not voluntarily comply
with such laws and/or regulations in lieu of compliance with the CFTC
Capital Rules or the CFTC Financial Reporting Rules.
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\20\ The Commission provides the applicant with an opportunity
to review for accuracy and completeness the Commission's description
of relevant home country laws and regulations on which a proposed
Comparability Determination and a proposed Comparability Order are
based. The Commission relies on this review, and any corrections or
feedback received, as part of the comparability assessment. A
Comparability Determination and Comparability Order based on an
inaccurate description of foreign laws and regulations may not be
valid.
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The Commission may consider all relevant factors in making a
Comparability Determination, including: (i) the scope and objectives of
the relevant foreign jurisdiction's capital and financial reporting
requirements; (ii) whether the relevant foreign jurisdiction's capital
and financial reporting requirements achieve comparable outcomes to the
Commission's corresponding capital requirements and financial reporting
requirements; (iii) the ability of the relevant foreign regulatory
authority or authorities to supervise and enforce compliance with the
relevant foreign jurisdiction's capital adequacy and financial
reporting requirements; and (iv) any other facts or circumstances the
Commission deems relevant, including whether the Commission and foreign
regulatory authority or authorities have a memorandum of understanding
(``MOU'') or similar arrangement that would facilitate supervisory
cooperation.\21\
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\21\ 17 CFR 23.106(a)(3) and 85 FR 57462 at 57520-57522.
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In performing the comparability assessment for foreign nonbank SDs,
the Commission's review will include the extent to which the foreign
jurisdiction's requirements address: (i) the process of establishing
minimum capital requirements for nonbank SDs and how such process
addresses risk, including market risk and credit risk of the nonbank
SD's on-balance sheet and off-balance sheet exposures; (ii) the types
of equity and debt instruments that qualify as regulatory capital in
meeting minimum requirements; (iii) the financial reports and other
financial information submitted by a nonbank SD to its relevant
regulatory authority and whether such information provides the
regulatory authority with the means necessary to effectively monitor
the financial condition of the nonbank SD; and (iv) the regulatory
notices and other communications between a nonbank SD and its foreign
regulatory authority that address potential adverse financial or
operational issues that may impact the firm. With respect to the
ability of the relevant foreign regulatory authority to supervise and
enforce compliance with the foreign jurisdiction's capital adequacy and
financial reporting requirements, the Commission's review will include
an assessment of the foreign jurisdiction's surveillance program for
monitoring nonbank SDs' compliance with such capital adequacy and
financial reporting requirements, and the disciplinary process imposed
on firms that fail to comply with such requirements.\22\
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\22\ The Commission would conduct a similar analysis, adjusted
as appropriate to account for regulatory distinctions, in performing
a comparability assessment for foreign nonbank MSPs. Commission
Regulation 23.101(b) requires a nonbank MSP to maintain positive
tangible net worth. There are no MSPs currently registered with the
Commission. 17 CFR 23.101(b).
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[[Page 58538]]
Commission Regulation 23.106 further provides that the Commission
may impose any terms or conditions that it deems appropriate in issuing
a Comparability Determination.\23\ Any specific terms or conditions
with respect to capital adequacy or financial reporting requirements
will be set forth in the Commission's Comparability Order. As a general
condition to all Comparability Orders, the Commission will require
notification from the applicants of any material changes to information
submitted by the applicants in support of a comparability finding,
including, but not limited to, changes in the foreign jurisdiction's
relevant laws and regulations, as well as changes to the relevant
supervisory or regulatory regime.
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\23\ 17 CFR 23.106(a)(5).
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To rely on a Comparability Order, a nonbank SD or nonbank MSP
domiciled in the foreign jurisdiction and subject to supervision by the
relevant regulatory authority (or authorities) in the foreign
jurisdiction must file a notice with the Commission of its intent to
comply with the applicable capital adequacy and financial reporting
requirements of the foreign jurisdiction set forth in the Comparability
Order in lieu of all or parts of the CFTC Capital Rules and/or CFTC
Financial Reporting Rules.\24\ Notices must be filed electronically
with the Commission's Market Participants Division (``MPD'').\25\ The
filing of a notice by a non-U.S. nonbank SD or non-U.S. nonbank MSP
provides MPD staff with the opportunity to engage with the firm and to
obtain representations that it is subject to, and complies with, the
laws and regulations cited in the Comparability Order and that it will
comply with any listed conditions. MPD will issue a letter under
delegated authority from the Commission confirming that the non-U.S.
nonbank SD or non-U.S. nonbank MSP may comply with the foreign laws and
regulations cited in the Comparability Order in lieu of complying with
the CFTC Capital Rules and CFTC Financial Reporting Rules upon MPD's
confirmation through discussions with the non-U.S. nonbank SD or non-
U.S. nonbank MSP that the firm is subject to, and complies with, such
foreign laws and regulations, is subject to the jurisdiction of the
applicable foreign regulatory authority (or authorities), and can meet
the conditions in the Comparability Order.\26\
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\24\ 17 CFR 23.106(a)(4)(i).
\25\ Notices must be filed in electronic form to the following
email address: <a href="/cdn-cgi/l/email-protection#226f7266644b4c434c414b434e704753574b50474f474c565162414456410c454d54"><span class="__cf_email__" data-cfemail="4d001d090b24232c232e242c211f283c38243f28202823393e0d2e2b392e632a223b">[email protected]</span></a>.
\26\ 17 CFR 23.106(a)(4)(ii) and 17 CFR 140.91(a)(11).
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Each non-U.S. nonbank SD and each non-U.S. nonbank MSP that
receives confirmation from the Commission that it may comply with a
foreign jurisdiction's capital adequacy and financial reporting
requirements will be deemed by the Commission to be in compliance with
the corresponding CFTC Capital Rules and/or CFTC Financial Reporting
Rules.\27\ A non-U.S. nonbank SD or non-U.S. nonbank MSP that receives
confirmation of substituted compliance remains subject, however, to the
Commission's examination and enforcement authority.\28\ Accordingly, if
a nonbank SD or nonbank MSP fails to comply with the foreign
jurisdiction's capital adequacy and/or financial reporting
requirements, the Commission may initiate an action for a violation of
the corresponding CFTC Capital Rules and/or CFTC Financial Reporting
Rules.\29\ In addition, a finding of a violation by a foreign
jurisdiction's regulatory authority is not a prerequisite for the
exercise of such examination and enforcement authority by the
Commission.
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\27\ 17 CFR 23.106(a)(4)(ii). Confirmation will be issued by MPD
under authority delegated by the Commission. Commission Regulation
140.91(a)(11). 17 CFR 140.91(a)(11).
\28\ 17 CFR 23.106(a)(4)(ii).
\29\ Id.
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C. Application for a Comparability Determination for Nonbank Swap
Dealers Domiciled in the United Kingdom and Subject to Regulation by
the Prudential Regulation Authority
On May 4, 2021, the Institute of International Bankers (``IIB''),
International Swaps and Derivatives Association (``ISDA''), and
Securities Industry and Financial Markets Association (``SIFMA'')
(together, the ``Applicants'') submitted an application (the ``UK
Application'') requesting that the Commission conduct a Comparability
Determination and issue a Comparability Order finding that compliance
with certain designated capital and financial reporting requirements of
the United Kingdom satisfy certain Commission capital rules and
financial reporting rules for nonbank SDs.\30\ Specifically, the
Applicants requested that the Commission determine that registered
nonbank SDs \31\ organized and domiciled within the UK, licensed as
investment firms, and designated for prudential supervision by the UK
Prudential Regulation Authority (``PRA-designated UK nonbank SDs''),
may satisfy corresponding CFTC Capital Rules and CFTC Financial
Reporting Rules applicable to a nonbank SD under sections 4s(e) and (f)
of the CEA and Commission Regulations 23.101 and 23.105.\32\
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\30\ Letter dated May 4, 2021 from Stephanie Webster, General
Counsel, IIB, Steven Kennedy, Global Head of Public Policy, ISDA,
and Kyle Brandon, Managing Director, Head of Derivatives Policy,
SIFMA. The UK Application is available on the Commission's website
at: <a href="https://www.cftc.gov/LawRegulation/DoddFrankAct/CDSCP/index.htm">https://www.cftc.gov/LawRegulation/DoddFrankAct/CDSCP/index.htm</a>.
\31\ As discussed in Section I.A. immediately below, the
Commission has the authority to impose capital requirements on
registered SDs that are not subject to regulation by a U.S.
prudential regulator (i.e., nonbank SDs).
\32\ The Applicants also requested that the Commission determine
that nonbank SDs licensed as investment firms and prudentially
regulated by the UK Financial Conduct Authority (``FCA'') (``FCA-
regulated UK nonbank SDs'') may satisfy certain capital and
financial reporting requirements under the CEA by being subject to,
and complying with, comparable capital and financial reporting
requirements under UK laws and regulations. Due to the differences
between the capital and financial reporting regimes applicable to
PRA-designated UK nonbank SD and FCA-regulated UK nonbank SDs, the
Commission anticipates assessing the comparability of the rules
applicable to FCA-regulated UK nonbank SDs through a separate
comparability determination.
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To be designated for prudential supervision by the UK Prudential
Regulation Authority (``PRA''), a UK-domiciled investment firm must be
authorized, or have requested authorization, to deal in investments as
principal.\33\ For an investment firm that is authorized, or has
requested authorization, to deal in investments as principal, the PRA
may designate the firm for prudential supervision if the PRA determines
that the dealing activities of the firm should be a PRA-regulated
activity. The PRA considers the following in determining whether an
investment firm should be subject to PRA supervision: (i) the assets of
the investment firm; and (ii) where the investment firm is a member of
a group, (a) the assets of other firms within the group that are
authorized, or have sought authorization, to deal in investments as
principal, (b) whether any other member of the group is subject to
prudential supervision by the PRA, and (c) whether the investment
firm's activities have, or might have, a material impact on the ability
of the PRA to advance any of its objectives in relation to a PRA-
authorized person in its group.\34\ The PRA also must consult
[[Page 58539]]
with the FCA before designating a person for prudential
supervision.\35\
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\33\ Article 3(1) and (2) of The Financial Services and Markets
Act 2000 (PRA-regulated Activities) Order 2013.
\34\ Id., Article 3(4).
\35\ Id., Article 3(6).
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The PRA also has issued a Statement of Policy providing further
detail regarding the factors that are considered in assessing an
investment firm for prudential supervision.\36\ The factors include:
(i) whether the firm's balance sheet exceeds an average of GBP 15
billion total gross assets over four quarters; (ii) where the
investment firm is part of a group, whether the sum of the balance
sheets of all firms within the group that are authorized, or have
requested authorization, to deal in investments as principals exceeds
an average of GBP 15 billion over four quarters; and/or (iii) where the
firm is part of a group subject to PRA supervision, whether the
investment firm's revenues, balance sheet and risk taking is
significant relative to the group's revenues, balance sheet, and risk-
taking.\37\ There are currently six PRA-designated UK nonbank SDs
registered with the Commission: Citigroup Global Markets Limited,
Goldman Sachs International, Merrill Lynch International, Morgan
Stanley & Co. International Plc, MUFG Securities EMEA Plc, and Nomura
International Plc.
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\36\ PRA, Statement of Policy, Designation of Investment Firms
for Prudential Supervision by the Prudential Regulation Authority,
December 2021, available here: <a href="https://www.bankofengland.co.uk/-/media/boe/files/prudential-regulation/statement-of-policy/2021/designation-of-investment-firms-for-prudential-supervision-by-the-pra-december-2021.pdf?la=en&hash=007EB17EDF2FA84714D372095F9E03627355776F">https://www.bankofengland.co.uk/-/media/boe/files/prudential-regulation/statement-of-policy/2021/designation-of-investment-firms-for-prudential-supervision-by-the-pra-december-2021.pdf?la=en&hash=007EB17EDF2FA84714D372095F9E03627355776F</a>.
\37\ Id., at p. 5.
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The Applicants represented that the capital and financial reporting
framework applicable to PRA-designated UK nonbank SDs is primarily
based on the framework established by the European Union's (``EU'')
Capital Requirements Regulation \38\ and Capital Requirements
Directive,\39\ which set forth capital and financial reporting
requirements applicable to ``credit institutions'' \40\ and
``investment firms.'' \41\ CRR, as a regulation, is directly applicable
in all member states of the EU (``EU Member States'') and was,
therefore, binding law in the UK during the UK's membership in the
EU.\42\ CRD, as a directive, was required to be transposed into EU
Member States' national law, including UK law.\43\ With regard to PRA-
designated UK nonbank SDs, the UK implemented CRD primarily through a
series of regulations, including the Capital Requirements Regulations
2013 \44\ and the Capital Requirements (Capital Buffers and Macro-
prudential Measures) Regulations 2014,\45\ and the rules of the
PRA.\46\
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\38\ Regulation (EU) No 575/2013 of the European Parliament and
of the Council of 26 June 2013 on prudential requirements for credit
institutions and amending Regulation (EU) No 648/2012 (``Capital
Requirements Regulation'' or ``CRR'').
\39\ Directive 2013/36/EU of the European Parliament and of the
Council of 26 June 2013 on access to the activity of credit
institutions and the prudential supervision of credit institutions,
amending Directive 2002/87/EC and repealing Directives 2006/48/EC
and 2006/49/EC (``Capital Requirements Directive'' or ``CRD'').
\40\ The term ``credit institution'' is defined as an entity
whose business consists of taking deposits and other repayable funds
from the public and granting credits. CRR, Article 4(1), as
applicable in the UK. For a reference to CRR provisions applicable
in the UK, see infra note 50.
\41\ The term ``investment firm'' is defined as an entity
authorized under Directive 2014/65/EU of the European Parliament and
of the Council of 15 May 2014 on markets in financial instruments
and amending Directive 2002/92/EC and Directive 2011/61/EU
(``Markets in Financial Instruments Directive'' or ``MiFID''), and
whose regular business is the provision of one or more investment
services to third parties and/or the performance of one or more
investment-related activities on a professional basis, which
includes dealing in derivatives for its own account. CRR, Article
4(1)(2) cross-referencing Article 4(1)(1) of MiFID.
\42\ Consolidated Version of the Treaty on the Functioning of
the European Union, OJ (C 326) 171, Oct. 26, 2012 (``TFEU''),
Article 288.
\43\ Id., Article 288 (stating that a directive is binding as to
the result to be achieved upon each EU Member State to which the
directive is addressed, and further provides, however, that each EU
Member State elects the form and method of implementing the
directive). In this connection, EU Member States were required to
implement and start applying amendments to CRD, introduced by
Directive (EU) 2019/878 of the European Parliament and of the
Council of 20 May 2019 amending Directive 2013/36/EU as regards
exempted entities, financial holding companies, mixed financial
holding companies, remuneration, supervisory measures and powers and
capital conservation measures (``CRD V'') by December 29, 2020. Some
CRD V provisions were subject to delayed implementation deadlines of
June 28, 2021 and January 1, 2022. CRD V, Article 2.
\44\ Capital Requirements Regulations 2013, Statutory Instrument
2013 No. 3115 (``Capital Requirements Regulations 2013'').
\45\ Capital Requirements (Capital Buffers and Macro-prudential
Measures) Regulations 2014, Statutory Instrument 2014 No. 894
(``Capital Requirements (Capital Buffers and Macro-prudential
Measures) Regulations 2014'').
\46\ The PRA's rules (``PRA Rulebook'') are available here:
<a href="https://www.prarulebook.co.uk/">https://www.prarulebook.co.uk/</a>.
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Following the UK's withdrawal from EU membership (``Brexit''), EU
laws that were in effect and applicable as of December 31, 2020, were
retained in UK law subject to certain non-substantive amendments
seeking to reflect the UK's new position outside of the EU.\47\ As
such, directly applicable EU law, such as CRR, was converted into
domestic UK law and UK legislation implementing EU directives, such as
CRD, was preserved. The UK subsequently adopted additional changes,
generally consistent with amendments introduced by the EU to CRR, CRD
and other relevant EU provisions,\48\ and incorporated certain CRR
provisions in the PRA Rulebook.\49\ The CRR provisions as applicable in
the UK are referred hereafter as ``UK CRR.'' \50\ The UK capital and
financial reporting framework also comprises UK-specific requirements
in respect of certain matters. Requirements applicable to PRA-
designated UK nonbank SDs are included in the PRA Rulebook. In
addition, Commission Delegated Regulation (EU) 2015/61,\51\ which
supplements UK CRR with regard to liquidity coverage requirement for
credit institutions, applies to PRA-designated UK nonbank SDs and
imposes separate liquidity requirements to these firms.\52\
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\47\ See, An Act to Repeal the European Communities Act 1972 and
make other provisions in connection with the withdrawal of the
United Kingdom from the EU (2018 c.16) (``European Union
(Withdrawal) Act 2018'').
\48\ PRA, Policy Statement 21/21--The UK Leverage Framework,
October 2021, available here: <a href="https://www.bankofengland.co.uk/prudential-regulation/publication/2021/june/changes-to-the-uk-leverage-ratio-framework">https://www.bankofengland.co.uk/prudential-regulation/publication/2021/june/changes-to-the-uk-leverage-ratio-framework</a>, and Policy Statement 22/21--Implementation
of Basel standards: Final rules, October 2021, available here:
<a href="https://www.bankofengland.co.uk/prudential-regulation/publication/2021/october/implementation-of-basel-standards">https://www.bankofengland.co.uk/prudential-regulation/publication/2021/october/implementation-of-basel-standards</a>.
\49\ Pursuant to the Financial Services and Markets Act 2023
(``FSMA 2023''), the UK revoked CRR and replaced it with: (i) PRA
rules adopted under Section 144 of the Financial Services and
Markets Act 2000 (``FSMA'') and (ii) UK regulations, adopted under
Section 4 of FSMA 2023, restating CRR provisions.
\50\ The UK CRR is available here: <a href="https://www.legislation.gov.uk/eur/2013/575/contents">https://www.legislation.gov.uk/eur/2013/575/contents</a>. The provisions that
were incorporated in the PRA Rulebook are no longer part of UK CRR
and appear instead in the PRA Rulebook.
\51\ Commission Delegated Regulation (EU) 2015/61 of 10 October
2014 to supplement Regulation (EU) No 575/2013 of the European
Parliament and the Council with regard to liquidity coverage
requirement for Credit Institutions (``Liquidity Coverage Delegated
Regulation'').
\52\ PRA Rulebook, CRR Firms, Liquidity Coverage Requirement--UK
Designated Investment Firms Part.
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The Applicants also represented that in addition to UK CRR and the
PRA Rulebook, the Banking Act 2009 and its related secondary
legislation, through which the UK transposed the Bank Recovery and
Resolution Directive (``BRRD''), include relevant UK capital
requirements.\53\ Specifically, pursuant to the Banking Act 2009 and
its secondary legislation, the Bank of
[[Page 58540]]
England, in its role as resolution authority, requires certain
investment firms, including PRA-designated UK nonbank SDs, to satisfy a
firm-specific minimum requirement for own funds and eligible
liabilities (``MREL'').\54\
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\53\ Directive 2014/59/EU of the European Parliament and of the
Council of 15 May 2014 establishing a framework for the recovery and
resolution of credit institutions and investment firms and amending
Council Directive 82/891/EEC, and Directives 2001/24/EC, 2002/47/EC,
2004/25/EC, 2005/56/EC, 2007/36/EC, 2011/35/EU, 2012/30/EU and 2013/
36/EU, and Regulations (EU) No 1093/2010 and (EU) No 648/2012, of
the European Parliament and of the Council. UK Application, p. 7.
\54\ Banking Act 2009, Section 3A (4) and (4B); Bank Recovery
and Resolution (No 2) Order 2014, Statutory Instrument No. 3348
(``Bank Recovery and Resolution (No 2) Order 2014''), Part 9.
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UK CRR, Capital Requirements Regulations 2013, Capital Requirements
(Capital Buffers and Macro-prudential Measures) Regulations 2014,
Liquidity Coverage Delegated Regulation, relevant provisions of Banking
Act 2009 and its secondary legislation, and relevant parts of the PRA
Rulebook are referred to hereafter as the ``UK PRA Capital Rules.''
The Applicants further represented that with respect to supervisory
financial reporting, the framework applicable to PRA-designated UK
nonbank SDs is also based on the EU requirements. In addition, the
framework comprises PRA-specific rules for matters not addressed by the
EU-based requirements. Specifically, Commission Implementing Regulation
(EU) 680/2014,\55\ which was initially retained in UK law following
Brexit, supplemented CRR with implementing technical standards (``CRR
Reporting ITS'') specifying, among other things, uniform formats and
frequencies for the financial and capital requirements reporting
required under CRR.\56\ CRR Reporting ITS included templates for the
common reporting (``COREP'') and the financial reporting (``FINREP'')
that specify the contents of the EU-based supervisory reporting
requirements. As part of the regulatory reforms that followed Brexit
and sought to implement Basel standards, the PRA incorporated the
entire body of the UK version of COREP and FINREP requirements into the
PRA Rulebook to create a single source for reporting requirements for
firms.\57\ For PRA-designated UK nonbank SDs that are not subject to
the EU-based FINREP requirements, the PRA Rulebook includes PRA-
specific requirements.\58\
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\55\ Commission Implementing Regulation (EU) 680/2014 of 16
April 2014 laying down implementing technical standards with regard
to supervisory reporting of institutions according to Regulation
(EU) No 575/2013 of the European Parliament and of the Council.
\56\ UK Application, p. 24 and Responses to Staff Questions
dated October 5, 2023.
\57\ PRA Rulebook, CRR Firms, Reporting (CRR) Part.
\58\ PRA Rulebook, CRR Firms, Regulatory Reporting Part.
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The Applicants also represented that the Companies Act 2006
contains provisions related to financial reporting, including a mandate
that entities of a certain size be required to prepare annual audited
financial statements and a strategic report.\59\ UK CRR, relevant
provisions of the PRA Rulebook, and relevant provisions of the
Companies Act 2006, are collectively referred to hereafter as the ``UK
PRA Financial Reporting Rules.''
---------------------------------------------------------------------------
\59\ UK Application, p.7. Companies Act 2006, Part 15 and 16.
The Companies Act 2006 is available here: <a href="https://www.legislation.gov.uk/ukpga/2006/46/contents">https://www.legislation.gov.uk/ukpga/2006/46/contents</a>.
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The Applicants also noted that the U.S. Securities and Exchange
Commission (``SEC'') has issued orders permitting an SEC-registered
nonbank security-based swap dealer domiciled in the UK (``UK nonbank
SBSD'') \60\ to satisfy SEC capital \61\ and financial reporting
requirements via substituted compliance with applicable UK capital and
financial reporting.\62\ The UK Order conditioned substituted
compliance for capital requirements on a UK nonbank SBSD complying with
specified laws and regulations, including relevant parts of UK CRR and
the PRA Rulebook, and also maintaining total liquid assets in an amount
that exceeds the UK nonbank SBSD's total liabilities by at least $100
million and by at least $20 million after applying certain deductions
to the value of the liquid assets to reflect market, credit, and other
potential risks to the value of the assets.\63\
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\60\ All six of the PRA-designated UK nonbank SDs currently
registered with the Commission are also UK nonbank SBSDs.
\61\ Section 15F(e)(1)(B) of the Exchange Act (15 U.S.C. 78o-10)
directs the SEC to adopt capital rules for security-based swap
dealers (``SBSDs'') that do not have a prudential regulator.
\62\ Order Granting Conditional Substituted Compliance in
Connection with Certain Requirements Applicable to Non-U.S.
Security-Based Swap Dealers and Major Security-Based Swap
Participants Subject to Regulation in the United Kingdom, 86 FR
43318 (July 30, 2021) (``Final UK Order''); Amended and Restated
Order Granting Conditional Substituted Compliance in Connection with
Certain Requirements Applicable to Non-U.S. Security-Based Swap
Dealers and Major Security-Based Swap Participants Subject to
Regulation in the Federal Republic of Germany; Amended Orders
Addressing Non-U.S. Security-Based Swap Entities Subject to
Regulation in the French Republic or the United Kingdom; and Order
Extending the Time to Meet Certain Conditions Relating to Capital
and Margin, 86 FR 59797 (Oct. 28, 2021) (``Amended UK Order,''
together with the Final UK Order, ``UK Order''); and Order
Specifying the Manner and Format of Filing Unaudited Financial and
Operational Information by Security-Based Swap Dealers and Major
Security-Based Swap Participants that are not U.S. Persons and are
Relying on Substituted Compliance with Respect to Rule 18a-7, 86 FR
59208 (Oct. 26, 2021) (``SEC Order on Manner and Format of Filing
Unaudited Financial and Operational Information'').
\63\ The conditioning of the UK substituted compliance order on
UK nonbank SBSDs maintaining liquid assets in an amount that exceeds
the UK nonbank SBSD's total liabilities by at least $100 million and
by at least $20 million after applying certain deductions to the
value of the liquid assets reflects that the SEC's capital rule for
nonbank SBSDs is a liquidity-based requirement and that the SEC
capital requirements are not based on the Basel standards. 17 CFR
240.18a-1(a)(1) (requiring a SBSD to maintain, in relevant part, net
capital of $20 million or, if approved to use capital models, $100
million of tentative net capital and $20 million of net capital).
---------------------------------------------------------------------------
D. Proposed Comparability Determination and Proposed Comparability
Order for PRA-Designated UK Nonbank Swap Dealers
On February 5, 2024, the Commission published the 2024 Proposal,
seeking comment on the Application and the Commission's proposed
Comparability Determination and related Comparability Order.\64\ The
2024 Proposal set forth the Commission's preliminary Comparability
Determination and proposed Comparability Order providing that, based on
its review of the UK Application and applicable UK laws and/or rules,
the Commission preliminarily found that the UK PRA Capital Rules and
the UK PRA Financial Reporting Rules, subject to the conditions set
forth in the proposed Comparability Order, achieve comparable outcomes
and are comparable in purpose and effect to the CFTC Capital Rules and
CFTC Financial Reporting Rules.\65\ The Commission, however, noted that
there were certain differences between the UK PRA Capital Rules and
CFTC Capital Rules and certain differences between the UK PRA Financial
Reporting Rules and the CFTC Financial Reporting Rules. As such, the
Commission proposed certain conditions to the Comparability Order.\66\
The proposed conditions were designed to promote consistency in
regulatory outcomes, to reflect the scope of substituted compliance
that would be available notwithstanding the differences, and to ensure
that the Commission and National Futures Association (``NFA'') receive
information to monitor PRA-designated UK nonbank SDs for ongoing
compliance with the Comparability
[[Page 58541]]
Order.\67\ The Commission further stated that, in its preliminary view,
the identified differences would not be inconsistent with providing a
substituted compliance framework for PRA-designated UK nonbank SDs
subject to the conditions specified in the proposed Comparability
Order.\68\
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\64\ 2024 Proposal, 89 FR 8026 (Feb. 5, 2024).
\65\ Id. Consistent with the process specified in Section I.B.
above for conducting Comparability Determinations, the Commission
provided the Applicants with an opportunity to review for factual
accuracy and completeness the Commission's description of relevant
UK laws and regulations on which the proposed Comparability
Determination and proposed Comparability Order were based. The
Commission has relied on the Applicants' review, and has
incorporated feedback and corrections received from the Applicants.
As previously noted, a Comparability Determination and Comparability
Order based on an inaccurate description of foreign laws and
regulations may not be valid.
\66\ See 2024 Proposal at 8058-8061.
\67\ NFA is a registered futures association (``RFA'') under
Section 17 of the CEA (7 U.S.C. 21). Each SD registered with the
Commission is required to be an NFA member. 17 CFR 170.16. NFA, as
an RFA, is also required by the CEA to adopt rules imposing minimum
capital, segregation, and other financial requirements, as
applicable, to its members, including SDs, that are at least as
stringent as the Commission's minimum capital, segregation, and
other financial requirements for such registrants, and to implement
a program to audit and enforce such requirements. 7 U.S.C. 21(p).
Therefore, the Commission's proposed Comparability Order required
PRA-designated UK nonbank SDs to file certain financial reports and
notices with NFA so that it may perform oversight of such firms as
required under Section 17 of the CEA. The Commission will refer to
NFA in this Comparability Determination when referring to the
requirements or obligations of an RFA.
\68\ Id.
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The proposed Comparability Order was limited to the comparison of
the UK PRA Capital Rules to the CFTC Capital Rules' Bank-Based Capital
Approach (``Bank-Based Approach'') for computing regulatory capital for
nonbank SDs, which is based on certain capital requirements imposed by
the Federal Reserve Board for bank holding companies.\69\ As noted by
the Commission in the 2024 Proposal, the Applicants have not requested,
nor has the Commission performed, a comparison of the UK PRA Capital
Rules to the Commission's TNW Approach or NLA Approach.\70\
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\69\ Id. As described in the 2024 Proposal, the CFTC Capital
Rules provide nonbank SDs with three alternative capital approaches:
(i) the Tangible Net Worth Capital Approach (``TNW Approach''); (ii)
the Net Liquid Assets Capital Approach (``NLA Approach''); and (iii)
the Bank-Based Approach. See 2024 Proposal at 8031-8033, and 17 CFR
23.101. The Bank-Based Approach is consistent with the Basel
Committee on Banking Supervision's (``BCBS'') international
framework for bank capital requirements (``BCBS framework'' or
``Basel standards''). The BCBS is the primary global standard-setter
for the prudential regulation of banks and provides a forum for
cooperation on banking supervisory matters. Institutions represented
on the BCBS include the Federal Reserve Board, the European Central
Bank, Deutsche Bundesbank, Bank of England, Bank of France, Bank of
Japan, Banco de Mexico, and Bank of Canada. The BCBS framework is
available at <a href="https://www.bis.org/basel_framework/index.htm">https://www.bis.org/basel_framework/index.htm</a>.
\70\ See 2024 Proposal at 8035-8036.
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E. General Comments on the UK Application and the Commission's Proposed
Finding of Comparability Between the CFTC Capital Rules and CFTC
Financial Reporting Rules and the UK PRA Capital Rules and the UK PRA
Financial Reporting Rules
The public comment period on the UK Application, the proposed
Comparability Determination, and the proposed Comparability Order ended
on March 24, 2024. The Commission received comments from the following
four interested parties: Michael Ravnitzky (``Ravnitzky''); William J.
Harrington (``Harrington''); Better Markets, Inc. (``Better Markets'');
and the Applicants.\71\
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\71\ Letters from: Michael Ravnitzky (``Ravnitzky Letter'');
Dennis M. Kelleher, Co-founder, President and CEO, and Cantrell
Dumas, Director of Derivatives Policy, Better Markets (March 24,
2024) (``Better Markets Letter''); and Stephanie Webster, General
Counsel, IIB, Steven Kennedy, Global Head of Public Policy, ISDA,
and Kyle L. Brandon, Managing Director, Head of Derivatives Policy,
SIFMA (March 24, 2024) (``Applicants' Letter''); Letter from William
J. Harrington dated March 24, 2024 (``Harrington 03/24/2024
Letter'') and supporting material. The comment letters and related
documents for the 2024 Proposal are available at: <a href="https://comments.cftc.gov/PublicComments/CommentList.aspx?id=7478">https://comments.cftc.gov/PublicComments/CommentList.aspx?id=7478</a>.
---------------------------------------------------------------------------
The Applicants filed a comment letter generally expressing support
for the proposed Comparability Determination and Comparability Order,
agreeing with the Commission's overall analysis and determination of
comparability of the CFTC Capital Rules and CFTC Financial Reporting
Rules and the UK PRA Capital Rules and UK PRA Financial Reporting
Rules.\72\ The Applicants also included several technical comments,
further discussed in section II. below, on the proposed conditions
requiring PRA-designated UK nonbank SDs to file a notice with the
Commission and NFA upon the occurrence of certain events. Finally, the
Applicants recommended that the Commission refine the condition
defining the scope of the UK PRA Capital Rules to specify that only the
MREL-related provisions of the Banking Act 2009 would be considered
part of UK PRA Capital Rules.\73\ In support of their request, the
Applicants stated that the reference to the Banking Act 2009 is
included only because it imposes MREL on PRA-designated UK nonbank
SDs.\74\ The Commission notes that in the process leading to this
Comparability Determination, the Commission has considered the Banking
Act 2009 more broadly, including as it relates to the powers conferred
to the PRA in its role as resolution authority. With respect to the
definition of the UK PRA Capital Rules with which a PRA-designated UK
nonbank SD must comply, however, the Commission believes that referring
to the Banking Act 2009 only to the extent it imposes MREL on PRA-
designated UK nonbank SDs is appropriate. Accordingly, the Commission
has adjusted the language in final Condition 4 consistent with the
Applicants' recommendation.
---------------------------------------------------------------------------
\72\ Applicants' Letter at p. 2.
\73\ Id. at p. 4.
\74\ Id.
---------------------------------------------------------------------------
Conversely, two commenters disagreed with the CFTC's proposed
Comparability Determination and proposed Comparability Order.\75\
Better Markets asserted that the principles-based, holistic approach
applied by the Commission, which assesses whether the applicable
foreign jurisdiction's capital and financial requirements achieve
comparable outcomes to the corresponding Commission requirements, ``is
insufficiently rigorous, leaving far too much room for inaccurate and
unwarranted comparability determinations.'' \76\ Better Markets further
asserted that in an attempt to restore London to its status of a global
financial center in the post-Brexit environment, both major political
parties in the UK are promising ``light touch'' regulation and
incentivizing regulatory arbitrage.\77\
---------------------------------------------------------------------------
\75\ Better Markets Letter at p. 3-5; Harrington 03/24/2024
Letter at p. 4 (asserting, as further discussed below, that the
Commission should condition the Comparability Determination on a
prohibition against PRA-designated UK nonbank SDs' entering into
swap contracts with certain specified features).
\76\ Better Markets Letter at p. 5.
\77\ Id.
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The Commission does not believe that the principles-based, holistic
assessment that it conducted on the comparability of the UK PRA Capital
Rules and UK PRA Financial Reporting Rules with the CFTC Capital Rules
and CFTC Financial Reporting Rules was ``insufficiently rigorous,'' nor
does the Commission believe that it left ``room for inaccurate and
unwarranted comparability determinations.'' The principles-based,
holistic approach employed in the Comparability Determination was
performed in accordance with the substituted compliance assessment
framework adopted by the Commission for capital and financial reporting
requirements for foreign nonbank SDs and set out in Commission
Regulation 23.106. Consistent with this assessment framework, the
Commission focused on whether the UK PRA Capital Rules and UK PRA
Financial Reporting Rules are designed with the objective of ensuring
overall safety and soundness of the PRA-designated UK nonbank SDs in a
[[Page 58542]]
manner that is comparable with the Commission's overall objective of
ensuring the safety and soundness of nonbank SDs.
As stated in the 2024 Proposal, due to the detailed and complex
nature of the capital frameworks, differences in how jurisdictions
approach and implement the requirements are expected, even among
jurisdictions that base their requirements on the principles and
standards set forth in the BCBS framework.\78\ Furthermore, as
discussed in section I.B. above, when adopting Commission Regulation
23.106, the Commission stated that ``its approach to substituted
compliance is a principles-based, holistic approach that focuses on
whether the foreign regulations are designed with the objectives of
ensuring the overall safety and soundness of the [non-US nonbank SD] in
a manner that is comparable with the Commission's overall capital and
financial reporting requirements, and is not based on a line-by-line
assessment or comparison of a foreign jurisdiction's regulatory
requirements with the Commission's requirements.'' \79\
---------------------------------------------------------------------------
\78\ See 2024 Proposal at 8036.
\79\ 85 FR 57462 at 57521.
---------------------------------------------------------------------------
The approach and standards set forth in Commission Regulation
23.106, with the focus on ``comparable outcomes,'' are also consistent
with the Commission's precedents of undertaking a principles-based,
holistic assessment of the comparability of foreign regulatory regimes
for purposes of substituted compliance for cross-border swap
transactions. The Commission first outlined its approach to substituted
compliance with respect to swaps requirements in 2013, when it issued
an Interpretive Guidance and Policy Statement Regarding Compliance with
Certain Swap Regulations.\80\ In the Guidance, the Commission stated
that ``[i]n evaluating whether a particular category of foreign
regulatory requirement(s) is comparable and comprehensive to the
applicable requirement(s) under the CEA and Commission regulations, the
Commission will take into consideration all relevant factors, including
but not limited to, the comprehensiveness of those requirement(s), the
scope and objectives of the relevant regulatory requirement(s), the
comprehensiveness of the foreign regulator's supervisory compliance
program, as well as the home jurisdiction's authority to support and
enforce its oversight of the registrant.'' \81\ The Commission
emphasized that in this context, ``comparable does not necessarily mean
identical.'' \82\ Rather, the Commission stated that it would evaluate
whether the home jurisdiction's regulatory requirement is comparable
to, and as comprehensive as, the corresponding U.S. regulatory
requirement(s).\83\ In conducting comparability determinations based on
the policy set forth in the Guidance, the Commission noted that the
``outcome-based'' approach recognizes that ``foreign regulatory systems
differ and their approaches vary and may differ from how the Commission
chose to address an issue, but that the foreign jurisdiction's
regulatory requirements nonetheless achieve the regulatory outcome
sought to be achieved by a certain provision of the CEA or Commission
regulation.'' \84\
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\80\ Interpretative Guidance and Policy Statement Regarding
Compliance with Certain Swap Regulations, 78 FR 45292 (July 26,
2013) (``Guidance'').
\81\ Guidance at 45343.
\82\ Id.
\83\ Id.
\84\ See e.g., Comparability Determination for the European
Union: Certain Entity-Level Requirements, 78 FR 78923 (December 27,
2013) at 78926.
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The Commission further elaborated on the required elements of
comparability in 2016, when it issued final rules to address the cross-
border application of the Commission's margin requirements for
uncleared swap transactions. Specifically, the Commission stated that
its substituted compliance approach reflects an outcome-based
assessment of the comparability of a foreign jurisdiction's margin
requirements with the Commission's corresponding requirements.\85\ The
Commission further stated that it would evaluate the objectives and
outcomes of the foreign margin requirements in light of foreign
regulator(s)' supervisory and enforcement authority.\86\ Consistent
with its previously stated position, the Commission recognized that
jurisdictions may adopt different approaches to achieving the same
outcome and, therefore, the assessment would focus on whether the
foreign jurisdiction's margin requirements are comparable to the
Commission's in purpose and effect, not whether they are comparable in
every aspect or contain identical elements.\87\ The Commission's policy
thus reflects an understanding that a line-by-line evaluation of a
foreign jurisdiction's regulatory regime is not the optimum approach to
assessing the comparability of complex structures whose individual
components may differ based on jurisdiction-specific considerations,
but which achieve the objective and outcomes set forth in the
Commission's framework.
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\85\ Margin Requirements for Uncleared Swaps for Swap Dealers
and Major Swap Participants--Cross-Border Application of the Margin
Requirements, 81 FR 34817, 34836-34837 (May 31, 2016).
\86\ Id.
\87\ Id.
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With respect to the UK Application, the process leading to the
Commission's Comparability Determination involved Commission staff
reviewing relevant UK laws, rules, and regulations cited in the UK
Application. Staff verified the assertions and citations contained in
the UK Application regarding the specific UK PRA Capital Rules and UK
PRA Financial Reporting Rules to the relevant UK laws, rules, and
regulations.\88\
---------------------------------------------------------------------------
\88\ Staff also reviewed various documents relevant to the
proposed Comparability Determination and proposed Comparability
Order published by the PRA.
---------------------------------------------------------------------------
Commission staff also evaluated the comparability of the UK PRA
Capital Rules and UK PRA Financial Reporting Rules with the CFTC
Capital Rules and CFTC Financial Reporting Rules with respect to the
following areas: (i) the process of establishing minimum capital
requirements for PRA-designated UK nonbank SDs and how such process
addresses risk, including market risk and credit risk of the PRA-
designated UK nonbank SD's on-balance sheet and off-balance sheet
exposures; (ii) the types of equity and debt instruments that qualify
as regulatory capital in meeting a PRA-designated UK nonbank SD's
minimum capital requirements; (iii) the financial reports and other
financial information submitted by a PRA-designated UK nonbank SD to
the PRA, and whether such information provides the PRA with the means
necessary to effectively monitor the financial condition of the PRA-
designated UK nonbank SD; and (iv) the regulatory notices and other
communications between a PRA-designated UK nonbank SD and the PRA that
address potential adverse financial or operational issues that may
impact the firm.\89\ With respect to the ability of the PRA to
supervise and enforce compliance with the UK PRA Capital Rules and UK
PRA Financial Reporting Rules, the Commission's assessment included a
review of the PRA's surveillance program for monitoring compliance by
PRA-designated UK nonbank SDs with the UK PRA Capital Rules and the UK
PRA Financial Reporting Rules, and the disciplinary process imposed on
firms that fail to comply with such requirements.\90\ In conducting its
assessment of the PRA's
[[Page 58543]]
regulatory and supervisory framework, the Commission did not identify
elements supporting Better Markets' assertion that the framework is
characterized by ``light touch'' regulation.\91\
---------------------------------------------------------------------------
\89\ 2024 Proposal at 8036-8058.
\90\ Id. at 8057-8058.
\91\ For a further discussion of the Commission's assessment of
the PRA's supervision and enforcement powers, see Section II.F.
below. In addition, in its policy statement discussing the
forthcoming implementation of Basel 3.1 standards, the PRA noted
that despite some adjustments to the international standards, the
PRA considers that its policy and rules proposals align with the
international framework. In this regard, the PRA expressed the view
that alignment with international standards in turn supports the
UK's competitiveness, including relative standing of the UK as a
global financial center, by ``strengthening key stakeholders'
confidence in the UK banking system'' and ``assuring regulators in
other jurisdictions of UK's authorities' commitment to robust
standards.'' See PRA, PS17/23--Implementation of the Basel 3.1
Standards Near-Final Part 1, December 12, 2023, available here:
<a href="https://www.bankofengland.co.uk/news/2023/december/pra-publishes-first-of-two-policy-statements-for-basel-3-1-standards-implementation">https://www.bankofengland.co.uk/news/2023/december/pra-publishes-first-of-two-policy-statements-for-basel-3-1-standards-implementation</a>.
---------------------------------------------------------------------------
Contrary to the position articulated by Better Markets regarding
the nature of the comparability assessment, the Commission believes
that the principles-based, holistic assessment of the UK PRA Capital
Rules and UK PRA Financial Reporting Rules against the CFTC Capital
Rules and CFTC Financial Reporting Rules, as outlined above and
discussed in detail in section II below, was sufficiently rigorous for
purposes of determining if the UK PRA regulations are comparable in
purpose and effect to the CEA and Commission regulations. Better
Markets further asserted that even under a principles-based, holistic
approach, the UK PRA capital and financial reporting requirements for
PRA-designated UK nonbank SDs do not satisfy the test for an order
granting substituted compliance as the PRA's regulatory framework
governing capital and financial reporting is not comparable to the
corresponding CFTC requirements.\92\ Better Markets cited the
Commission's inclusion of conditions in the proposed Comparability
Order as demonstrating the Commission's need ``to compensate for the
acknowledged gaps in the UK PRA framework'' and as a ``de facto
admission that the regulations are not comparable and that the [UK
Application] should be denied.'' \93\ Better Markets claimed that the
Commission proposed 12 filing requirements that must be met as a
condition for the comparability determination, and stated that the
Commission was not issuing a comparability finding, but was engaging in
a ``de facto rewriting'' of the PRA's laws and rules in the form of
conditions.\94\
---------------------------------------------------------------------------
\92\ Better Markets Letter at p. 5.
\93\ Id.
\94\ Id. at p. 4.
---------------------------------------------------------------------------
Conversely, another commenter, Ravnitzky, noted that the ``CFTC
need not be limited to finding a binary yes or no answer to the
comparability determination'' and ``has the flexibility to grant
conditional substituted compliance.'' \95\ In this regard, Ravnitzky
recommended that the Commission exercise its authority ``to make a
flexible and nuanced decision, and strive to impose only the necessary
conditions for approving the UK PRA rules as substitutes, to minimize
the regulatory burden while achieving the necessary risk reduction.''
\96\
---------------------------------------------------------------------------
\95\ Ravnitzky Letter at p. 6.
\96\ Id.
---------------------------------------------------------------------------
The Commission disagrees that the inclusion of conditions in the
Comparability Order precludes a finding of comparability with respect
to the UK PRA Capital Rules and UK PRA Financial Reporting Rules. The
Commission's comparability assessment process, consistent with the
holistic approach, contemplates the potential need for a Comparability
Order to contain conditions. Specifically, Commission Regulation
23.106(a)(5) states that the Commission may impose any terms and
conditions it deems appropriate in issuing a Comparability Order,
including conditions with respect to capital adequacy and financial
reporting requirements of non-U.S. nonbank SDs.\97\
---------------------------------------------------------------------------
\97\ 17 CFR 23.106(a)(5), which provides that in issuing a
Capital Comparability Determination, the Commission may impose any
terms and conditions it deems appropriate, including certain capital
adequacy and financial reporting requirements on swap dealers . . .
(Emphasis added). Commission Regulation 23.106(a)(3) establishes the
Commission's standard of review for performing a Comparability
Determination and provides that the Commission may consider all
relevant factors, including whether the relevant foreign
jurisdiction's capital adequacy and financial reporting requirements
achieve comparable outcomes to the Commission's corresponding
capital adequacy and financial reporting requirements for SDs. 17
CFR 23.106(a)(3)(ii).
---------------------------------------------------------------------------
The process employed in this Comparability Determination is
consistent with the Commission's established approach to conducting
comparability assessments. Upon a finding of comparability, the
Commission's policy generally is that eligible entities may comply with
a substituted compliance regime subject to the conditions the
Commission places on its finding, and subject to the Commission's
retention of its examination authority and its enforcement
authority.\98\ In this regard, the Commission has stated that certain
conditions included in a Comparability Order may be designed to ensure
the Commission's direct access to books and records required to be
maintained by an SD registered with the Commission.\99\ Other
conditions may address areas where the foreign jurisdiction lacks
analogous requirements.\100\ The inclusion of conditions in a
Comparability Order was contemplated as an integral part of the
Commission's holistic, principles-based approach to conducting
comparability assessments and is not inconsistent with a grant of
substituted compliance.
---------------------------------------------------------------------------
\98\ 85 FR 57462 at 57520. See also Guidance at 45342-45344 and
Comparability Determination for the European Union: Certain
Transaction Level Requirements, 78 FR 78878 (December 27, 2013) at
78880.
\99\ Comparability Determination for the European Union: Certain
Transaction Level Requirements, 78 FR 78878 (December 27, 2013) at
78880.
\100\ Guidance at 45343.
---------------------------------------------------------------------------
In particular, Commission Regulation 23.106(a)(5) states the
Commission's authority to impose conditions in issuing a Comparability
Determination in connection with the CFTC Capital Rules and the CFTC
Financial Reporting Rules. As further discussed below, the conditions
proposed in the 2024 Proposal are clearly of the nature contemplated by
Commission Regulation 23.106(a)(5).
The Commission also does not believe that the inclusion of the
conditions in the Comparability Order reflects a ``rewriting'' of the
UK laws and regulations as asserted by Better Markets. Consistent with
the Commission's policy described above, a majority of the conditions
contained in the Comparability Order are designed to ensure that: (i)
the PRA-designated UK nonbank SD is eligible for substituted compliance
based on the UK laws and regulations that were reviewed by the
Commission in performing the comparability assessment, and (ii) the
Commission and NFA receive timely financial information and notices to
effectively monitor a PRA-designated nonbank SD's compliance with
relevant UK capital and financial reporting rules and to assess the
ongoing safety and soundness of the PRA-designated UK nonbank SD.
Specifically, there are 25 conditions in the final Comparability Order.
Six conditions set forth criteria that a PRA-designated UK nonbank SD
must meet to be eligible for substituted compliance pursuant to the
Comparability Order.\101\ The six
[[Page 58544]]
conditions ensure that only PRA-designated UK nonbank SDs that are
within the scope of, and comply with, the UK PRA Capital Rules and UK
PRA Financial Reporting Rules that were part of the Commission's
comparability assessment may apply for substituted compliance. Ten
additional conditions require PRA-designated UK nonbank SDs within the
scope of the Comparability Order to provide notice to the Commission
and NFA of certain defined events,\102\ and a further two conditions
require PRA-designated nonbank SDs to file with the Commission and NFA
copies of certain unaudited and audited financial reports that the
firms provide to the PRA.\103\ In addition, two additional conditions
reflect administrative matters necessary to implement the substituted
compliance framework.\104\ Lastly, five conditions impose obligations
on PRA-designated UK nonbank SDs that align with certain of the
Commission's requirements for nonbank SDs. The five conditions require
a PRA-designated UK nonbank SD to: (i) maintain common equity tier 1
capital denominated in GBP equal to or in excess of the equivalent of
$20 million (Condition 7); (ii) prepare and keep current financial
books and records (Condition 9); (iii) file a monthly schedule of the
firm's financial positions on Schedule 1 of appendix B to Subpart E of
part 23 of the Commission's regulations (Condition 12); (iv) file a
monthly report listing the custodians holding margin posted by, and
collected by, the PRA-designated UK nonbank SD, the amount of margin
held by each custodian, and the aggregate amount of margin required to
be posted and collected by the PRA-designated UK nonbank SD (Condition
14); and (v) submit, with each filing of financial information, a
statement by an authorized representative that, to the best knowledge
and belief of the person making the representation, the information is
true and correct (Condition 13).
---------------------------------------------------------------------------
\101\ The six criteria provide that the PRA-designated UK
nonbank SD: (i) is not subject to capital rules of a U.S. prudential
regulator (Condition 1); (ii) is organized and domiciled in the UK
(Condition 2); (iii) is licensed as an investment firm and
designated for prudential supervision by the PRA (Condition 3); (iv)
is subject to the UK CRR, CRD provisions as implemented in the UK,
the Liquidity Coverage Delegated Regulation, the provisions of the
Banking Act 2009 and its secondary legislation related to the MREL,
and the rules of the PRA as reflected in the PRA Rulebook (Condition
4); (v) satisfies at all times applicable UK CRR and PRA Rulebook
capital ratios, leverage ratios, and capital conservation buffer
ratios, and maintains a liquidity risk management program as
required under the PRA Rulebook (Condition 5); and (vi) is subject
to and complies with the UK financial reporting requirements that
are part of the Commission's comparability assessment (Condition 6).
\102\ The ten conditions require a PRA-designated UK nonbank SD
to provide notice to the Commission in the event that the firm: (i)
is informed by the PRA that the firm has failed to comply with any
component of the UK PRA Capital Rules or UK PRA Financial Reporting
Rules (Condition 15); (ii) fails to maintain common equity tier 1
capital denominated in GBP in an equivalent amount of at least $20
million (Condition 16); (iii) breaches its combined capital buffer
requirement and is required to file a capital conservation plan with
the PRA (Condition 17); (iv) is required by the PRA to maintain
additional capital or additional liquidity (Condition 18); (v) fails
to meet the required MREL (Condition 19); (vi) experiences a 30
percent or more decrease in its excess regulatory capital (Condition
20); (vii) fails to make or keep current financial books and records
(Condition 21); (viii) fails to post or collect margin for uncleared
swaps and non-cleared security-based swaps with one or more
counterparties in amounts that exceed defined limits (Condition 22);
(ix) changes its fiscal year-end date (Condition 23); and (x) is
subject to material changes to the UK PRA Capital Rules, UK PRA
Financial Reporting Rules, or the supervisory authority of the PRA
(Condition 24).
\103\ The two conditions provide that a PRA-designated UK
nonbank SD must file with the Commission and NFA: (i) a copy of SEC
Form X-17A-5 (``FOCUS Report'') that the PRA-designated UK nonbank
SD files with the SEC or copies of certain financial reporting
templates that the PRA-designated UK nonbank SD is required to
submit to the PRA pursuant to PRA Rulebook rules, as applicable
(Condition 10), and (ii) copies of its annual audited accounts and
strategic report that are required to be prepared and published
pursuant to Parts 15 and 16 of Companies Act 2006 (Condition 11).
\104\ One of the administrative conditions provides that a PRA-
designated UK nonbank SD must provide a notice to the Commission of
its intent to comply with the Comparability Order and the UK PRA
Capital Rules and UK PRA Financial Reporting Rules in lieu of the
CFTC Capital Rules and CFTC Financial Reporting Rules. The notice
must include the PRA-designated UK nonbank SD's representation that
the firm is organized and domiciled in the UK, is a licensed
investment firm designated for prudential supervision by the PRA,
and is subject to and complies with the UK PRA Capital Rules and the
UK PRA Financial Reporting Rules (Condition 8). The second
administrative condition provides that a PRA-designated UK nonbank
SD must file any documents with the Commission and NFA via
electronic transmission (Condition 25).
---------------------------------------------------------------------------
As the substance of these conditions demonstrates, the primary
objective of a majority of the conditions is not to compensate for
regulatory gaps in the UK PRA capital and financial reporting
framework, but rather to ensure that the Commission and NFA receive
information to conduct ongoing monitoring of PRA-designated UK nonbank
SDs for compliance with relevant capital and financial reporting
requirements and to assess the firm's overall safety and soundness. As
discussed above, in issuing the Comparability Order, the Commission is
not ceding its supervisory and enforcement authorities. The
Comparability Order permits PRA-designated UK nonbank SDs to satisfy
the Commission's capital and financial reporting requirements by
complying with certain UK laws and/or regulations that have been found
comparable to the Commission's laws and/or regulations in purpose and
effect. The Commission and NFA, however, have a continuing obligation
to conduct ongoing oversight, including potential examination, of PRA-
designated UK nonbank SDs that operate under a Comparability Order to
ensure compliance with the Comparability Order, including its
conditions.\105\ To that effect, the notice and financial reporting
conditions set forth in the Comparability Order provide the Commission
and NFA with information necessary to monitor for such compliance and
to evaluate the operational condition and ongoing financial condition
of PRA-designated UK nonbank SDs. The Commission may also initiate an
enforcement action against a PRA-designated UK nonbank SD that fails to
comply with the conditions of the Comparability Order.
---------------------------------------------------------------------------
\105\ As the Commission stated in the 2024 Proposal, a non-U.S.
nonbank SD that operates under a Comparability Order issued by the
Commission remains subject to the Commission's examination and
enforcement authority. Specifically, the Commission may initiate an
enforcement action against a non-U.S. nonbank SD that fails to
comply with its home-country capital adequacy and/or financial
reporting requirements cited in a Comparability Order. See 2024
Proposal at 8029. See also 17 CFR 23.106(a)(4)(ii), which provides
that the Commission may examine all nonbank SDs, regardless of
whether the nonbank SDs rely on substituted compliance, and that the
Commission may initiate an enforcement action under the Commission's
capital and financial reporting regulations against a non-U.S.
nonbank SD that fails to comply with a foreign jurisdiction's
capital adequacy and financial reporting requirements.
---------------------------------------------------------------------------
Furthermore, to the extent that a condition imposes a new
regulatory obligation on PRA-designated UK nonbank SDs, the imposition
of such condition is also consistent with Commission Regulation 23.106
and the Commission's established policy with regard to comparability
determinations. As discussed above, the Commission contemplated that
even in circumstances where the Commission finds two regulatory regimes
comparable, the Commission may impose requirements on entities relying
on substituted compliance where the Commission determines that the home
jurisdiction's regime lacks comparable and comprehensive regulation on
a specific issue.\106\ The Commission's authority to impose such
conditions is set out in Commission Regulation 23.106(a)(5), which
states that the Commission may impose ``any terms and conditions it
deems appropriate, including certain capital adequacy and financial
reporting requirements [on SDs].'' \107\
---------------------------------------------------------------------------
\106\ Guidance at 45343.
\107\ 17 CFR 23.106(a)(5).
---------------------------------------------------------------------------
Better Markets further stated that, if the Commission grants
substituted compliance with regard to materially
[[Page 58545]]
different regulatory requirements, it must make a well-supported,
evidence-based determination that those different requirements
nevertheless will, in fact, lead to comparable regulatory
outcomes.\108\ In this connection, Better Markets stated that if the
Commission grants the Comparability Determination and Comparability
Order, it must, at a minimum, clearly and specifically set forth the
desired regulatory outcome and provide a detailed, evidence-based
explanation as to how the jurisdiction's different legal requirements
nonetheless lead to that regulatory outcome.\109\ Better Markets
further asserted that ``[a] determination that a foreign jurisdiction's
nonbank SDs rules would produce comparable regulatory outcomes is the
beginning, not the end, of the CFTC's obligation to ensure that the
activities of the foreign nonbank SD entities do not pose risks to the
U.S. financial system. As time goes on, regulatory requirements that,
in theory, are expected to produce one regulatory outcome may, in
practice, produce a different one. And, of course, the regulatory
requirements may themselves be changed in a variety of ways. Finally,
the effectiveness of an authority's supervision and enforcement program
can become weakened for any number of reasons--the CFTC cannot assume
that an enforcement program that it believes is presently effective
will continue to be effective.'' \110\ Better Markets further asserted
that to fulfill its obligation to protect the U.S. financial system,
the CFTC must ensure, on an ongoing basis, that each grant of
substituted compliance remains appropriate over time by requiring, at a
minimum, each order of substituted compliance, and each MOU with a
foreign regulatory authority, to impose an obligation on the applicant,
as appropriate, to: (i) periodically apprise the Commission of the
activities and results of its supervision and enforcement programs, to
ensure that they remain sufficiently robust to deter and address
violations of the law; and (ii) immediately apprise the Commission of
any material changes to the regulatory regime, including changes to
rules or interpretations of rules.\111\
---------------------------------------------------------------------------
\108\ Better Markets at p. 10.
\109\ Id.
\110\ Id.
\111\ Id. at p. 11.
---------------------------------------------------------------------------
Although the Commission disagrees that the UK PRA Capital Rules and
the UK PRA Financial Reporting Rules, as a whole, are materially
different or do not achieve comparable regulatory outcomes, the
Commission concurs that granting substituted compliance should be the
result of a well-supported comparability assessment. Consistent with
that view, the Commission believes that this final Comparability
Determination clearly states the desired regulatory outcomes,
articulates the Commission's analysis in sufficient detail, and
provides an appropriate explanation of how the foreign jurisdiction's
requirements are comparable in purpose and effect with the Commission's
requirements, and lead to comparable regulatory outcomes with the
Commission's requirements. Specifically, section III of the 2024
Proposal and section II of the final Comparability Determination
reflect, among other observations, the Commission's detailed analysis
with respect to each of the elements for consideration listed in
Commission Regulation 23.106(a)(3).
The Commission also concurs that the availability of substituted
compliance is conditioned upon a non-US nonbank SD's ongoing compliance
with the terms and conditions of the final Comparability Order, and the
Commission's ongoing assessment that the UK PRA Capital Rules and UK
PRA Financial Reporting Rules remain comparable in purpose and effect
with the CFTC Capital Rules and CFTC Financial Reporting Rules. As
noted above, and discussed in more detail in sections II.D. and E.
below, PRA-designated UK nonbank SDs are subject to notice and
financial reporting requirements under the final Comparability Order
that provide Commission and NFA staff with the ability to monitor the
PRA-designated UK nonbank SDs' ongoing compliance with the conditions
set forth in the final Comparability Order. In addition, the final
Comparability Order requires a PRA-designated UK nonbank SD, or an
entity acting on its behalf, to inform the Commission of changes to the
relevant UK PRA Capital Rules and UK PRA Financial Reporting Rules so
that the Commission may assess the continued effectiveness of the
Comparability Order in ensuring that the relevant UK laws and
regulations have the comparable regulatory objectives of the CEA and
Commission regulations of ensuring the safety and soundness of nonbank
SDs.\112\ Commission staff will also monitor the PRA-designated UK
nonbank SDs directly as part of its supervisory program and will
discuss with the firms any proposed or pending revisions to specific
rules cited in the final Comparability Order. Lastly, in addition to
assessing the effectiveness of the Comparability Order as a result of
revisions or proposed revisions to the UK laws, regulations, or
supervisory regime administered by the PRA, the Commission further
notes that future material changes to the CFTC Capital Rules or CFTC
Financial Reporting Rules, or the Commission's or NFA's supervisory
programs, may necessitate an amendment to the Comparability
Determination and Comparability Order to reflect those changes.\113\
---------------------------------------------------------------------------
\112\ Condition 24 of the final Comparability Order requires a
PRA-designated UK nonbank SD, or an entity acting on its behalf, to
notify the Commission of any material changes to the information
submitted in its application, including, but not limited to,
proposed and final material changes to the UK PRA Capital Rules or
UK PRA Financial Reporting Rules and proposed and final material
changes to the PRA's supervisory authority or supervisory regime
over PRA-designated UK nonbank SDs. The Commission notes that it
made certain non-substantive, clarifying changes to the language of
final Condition 24 as compared to proposed Condition 24.
\113\ 2024 Proposal at 8036 (n. 128).
---------------------------------------------------------------------------
Another commenter, Harrington, stated that the Commission must
condition the Comparability Order on an ``outright prohibition against
regulated entities providing [swap contracts that include a ``flip
clause''].'' \114\ Harrington has elsewhere referred to a description
of a ``flip clause'' as a provision in swap contracts with structured
debt issuers that reverses or ``flips'' the priority of payment
obligations owed to the swap counterparty on the one hand and the
noteholders on the other, following a specified event of default.\115\
Based on Harrington's description, flip clauses present a risk to the
SD in synthetic transactions where payments under a swap contract are
secured with the same collateral that would serve to cover payments
under the notes issued by a structured debt issuer. In such
circumstances, an ``event of default'' by the SD would cause the SD's
priority of
[[Page 58546]]
payment from the collateral under a swap to ``flip'' to a more junior
priority position, including for mark-to-market gains on ``in the
money'' swaps.\116\ Harrington argued that swap contracts with a flip
clause incentivize SDs to ``self-sabotage by under-sourcing
themselves.'' \117\ Harrington recognized, however, that the CFTC
margin requirements for uncleared swap transactions address his
concerns associated with the inclusion of a flip clause.\118\
Nonetheless, according to Harrington, risks arise in circumstances when
non-U.S. margin rules exempt SDs from margin obligations in connection
with swaps with a structured debt issuer.\119\
---------------------------------------------------------------------------
\114\ Harrington 03/24/2024 Letter at p. 4. Harrington also
referenced the following two separate submissions to the Commission
and noted that these submissions support the Harrington 03/24/2024
Letter: a letter dated October 20, 2022 (``Harrington 10/20/2022
Letter''), submitted in connection with the Commission's Notice of
Proposed Order and Request for Comment on an Application for a
Capital Comparability Determination From the Financial Services
Agency of Japan, 87 FR 48092, (August 8, 2022) and a letter dated
August 28, 2023 (``Harrington 08/28/2023 Letter''), submitted in
connection with the Commission's Notice of Proposed Order and
Request for Comment on an Application for a Capital Comparability
Determination Submitted on Behalf of Nonbank Swap Dealers Domiciled
in the French Republic and Federal Republic of Germany and Subject
to Capital and Financial Reporting Requirements of the European
Union, 88 FR 41774 (June 27, 2023). Harrington 03/24/2024 Letter at
p.7.
\115\ William J. Harrington, Submission to the U.S. Securities
and Exchange Commission Re: File No. S7-08-12 (Nov. 19, 2018) at
p.8.
\116\ For additional information on the legal mechanics of a
flip clause, see Lehman Brothers Special Financing Inc v. Bank of
America N.A., No. 18-1079 (2nd Cir. 2020).
\117\ Harrington 03/24/2024 Letter at p. 8.
\118\ Harrington 03/24/2024 Letter at p. 21 (noting that ``[the
CFTC margin requirements] render the flip-clause-contract
commercially impracticable in the U.S.'' and that ``U.S. swap margin
rules, including the CFTC swap margin rule, have greatly benefited
U.S. persons by subduing financial sector credit exposures that
might otherwise draw bailouts or other U.S. government support'').
\119\ Harrington 03/24/2024 Letter at p. 25 (arguing that ``U.K.
and other non-U.S. swap margin and capital rules perpetuate the
flip-clause-swap-contract by allowing [asset-backed securities]
issuers, other structured debt issuers, banks, and swap dealers to
under-resource their [respective] contract exposures via both
exemptions from margin posting and see-no-evil capital rules that
treat the contract as `plain vanilla'.'')
---------------------------------------------------------------------------
The Commission recognizes that given some definitional differences
and differences in the activity thresholds with respect to the scope of
application of the CFTC margin requirements and non-U.S. margin
requirements, some transactions that are subject to the CFTC margin
requirements for uncleared swaps may not be subject to margin
requirements in another jurisdiction. In connection with this
Comparability Determination, however, the Commission notes that both
under the CFTC Capital Rules and the UK PRA Capital Rules,
uncollateralized exposures from uncleared swap transactions would
generate a higher counterparty credit risk amount than the exposures
resulting from transactions under which the counterparties have posted
collateral.\120\ Accordingly, the Commission does not believe that the
respective sets of rules adopt a conflicting approach or lead to a
disparate outcome with respect to the capital treatment of
uncollateralized uncleared swap exposures that would warrant a finding
of non-comparability of the CFTC Capital Rules and the UK PRA Capital
Rules.
---------------------------------------------------------------------------
\120\ 12 CFR 217.34 and 12 CFR 217.132 (indicating that nonbank
SDs may recognize the risk-mitigating effects of financial
collateral for collateralized derivatives contracts) and PRA
Rulebook, CRR Firms, Counterparty Credit Risk Part, Article 276 and
UK CRR, Article 285 (setting forth rules for the recognition and
treatment of collateral in calculating the PRA-designated UK nonbank
SD's counterparty credit risk exposure).
---------------------------------------------------------------------------
Finally, one commenter, Ravnitzky, noted that due to differences in
how the respective jurisdictions define the regulatory categories of
registrants involved in swap dealing activity (i.e., differences
between the term ``swap dealer'' as defined under the Commission's
regulations and the term ``investment firm'' as defined under the PRA's
framework), it may be ``unclear or inconsistent which entities can use
substituted compliance under the [proposed Comparability Order].''
\121\ The Commission notes, as discussed above, that the Comparability
Order will apply with respect to UK-domiciled, PRA-designated
investment firms that are registered with the Commission as SDs and not
subject to regulation by a U.S. prudential regulator. In this regard,
the Commission believes that proposed Conditions 1 through 4, which the
Commission adopts without material changes, clearly define the scope of
entities that may request to rely on the Comparability Order.
---------------------------------------------------------------------------
\121\ Ravnitzky Letter at p. 4.
---------------------------------------------------------------------------
II. Final Capital and Financial Reporting Comparability Determination
and Comparability Order
The following section provides the Commission's comparative
analysis of the UK PRA Capital Rules and the UK PRA Financial Reporting
Rules with the corresponding CFTC Capital Rules and CFTC Financial
Reporting Rules, as described in the 2024 Proposal, further modified to
address comments received. As emphasized in the 2024 Proposal, the
capital and financial reporting regimes are complex structures
comprised of a number of interrelated regulatory components.\122\
Differences in how jurisdictions approach and implement these regimes
are expected, even among jurisdictions that base their requirements on
the principles and standards set forth in the BCBS framework.
---------------------------------------------------------------------------
\122\ See 2024 Proposal at 8036.
---------------------------------------------------------------------------
The Commission performed the analysis by assessing the
comparability of the UK PRA Capital Rules for PRA-designated UK nonbank
SDs as set forth in the UK Application and in certain applicable UK
laws and regulations with the Commission's Bank-Based Approach for
nonbank SDs. The Commission understands that all PRA-designated UK
nonbank SDs addressed by the UK Application, as of the date of the
final Comparability Determination, are subject to a bank-based capital
approach under the UK PRA Capital Rules. Accordingly, when the
Commission makes its final determination herein about the comparability
of the UK PRA Capital Rules with the CFTC Capital Rules, the
determination pertains to the comparability of the UK PRA Capital Rules
with the Bank-Based Approach under the CFTC Capital Rules. The
Commission notes that any material changes to the information submitted
in the UK Application, including, but not limited to, proposed and
final material changes to the UK PRA Capital Rules or UK PRA Financial
Reporting Rules, as well as any proposed and final material changes to
the PRA's supervisory authority or supervisory regime over PRA-
designated UK nonbank SDs, will require notification to the Commission
and NFA pursuant to Condition 24 of the final Comparability Order.\123\
Therefore, if there are subsequent material changes to the UK PRA
Capital Rules, UK PRA Financial Reporting Rules, or PRA's supervisory
authority or regime, the Commission will review and assess the impact
of such changes on the final Comparability Determination and
Comparability Order as they are then in effect, and may amend or
supplement the Comparability Order as appropriate.\124\
---------------------------------------------------------------------------
\123\ Condition 24 of the final Comparability Order. The
Commission notes that it made certain non-substantive, clarifying
changes to the language of final Condition 24 as compared to
proposed Condition 24.
\124\ See 2024 Proposal at 8036. As stated in the 2024 Proposal,
the Commission may also amend or supplement the final Comparability
Order to address any material changes to the CFTC Capital Rules and
CFTC Financial Reporting Rules, including rule amendments to capital
rules of the Federal Reserve Board that are incorporated into the
CFTC Capital Rules' Bank-Based Approach under Commission Regulation
23.101(a)(1)(i), that are adopted after the final Comparability
Order is issued. See id., (n. 128). As noted in the 2024 Proposal,
the Commission is aware that the PRA is considering changes to the
UK PRA Capital Rules to implement Basel 3.1 standards. See PRA,
PS17/23--Implementation of the Basel 3.1 Standards Near-Final Part
1, December 12, 2023, available here: <a href="https://www.bankofengland.co.uk/news/2023/december/pra-publishes-first-of-two-policy-statements-for-basel-3-1-standards-implementation">https://www.bankofengland.co.uk/news/2023/december/pra-publishes-first-of-two-policy-statements-for-basel-3-1-standards-implementation</a>. If the
PRA proceeds with the implementation of the Basel 3.1 standards as
proposed, the regulatory changes would be applicable after July 1,
2025 with a 4.5-year transitional period ending on January 1, 2030.
The Commission will monitor progress on the PRA's proposed
regulatory changes and may amend or supplement the Comparability
Order. As noted, the Commission requires notification of any
material changes to the UK PRA Capital Rules, including any Basel
3.1 implementing provisions.
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[[Page 58547]]
A. Regulatory Objectives of CFTC Capital Rules and CFTC Financial
Reporting Rules and UK PRA Capital Rules and UK PRA Financial Reporting
Rules
1. Preliminary Determination
As reflected in the 2024 Proposal and discussed above, the
Commission preliminarily determined that the overall objectives of the
UK PRA Capital Rules and the CFTC Capital Rules are comparable in that
both sets of rules are intended to ensure the safety and soundness of
nonbank SDs by establishing regulatory regimes that require nonbank SDs
to maintain a sufficient amount of qualifying regulatory capital to
absorb losses, including losses from swaps and other trading
activities, and to absorb decreases in the value of firm assets and
increases in the value of firm liabilities without the nonbank SDs
becoming insolvent.\125\ The Commission further noted that the UK PRA
Capital Rules and CFTC Capital Rules are based on, and consistent with,
the BCBS framework, which was designed to ensure that banking entities
hold sufficient levels of capital to absorb losses and decreases in the
value of firm assets and increases in the value of firm liabilities
without the banks becoming insolvent.\126\
---------------------------------------------------------------------------
\125\ See 2024 Proposal at 8037.
\126\ The BCBS's mandate is to strengthen the regulation,
supervision, and practices of banks with the purpose of enhancing
financial stability. See Basel Committee Charter available on the
Bank for International Settlement website: <a href="http://www.bis.org/bcbs/charter.htm">www.bis.org/bcbs/charter.htm</a>. See 2024 Proposal at 8037.
---------------------------------------------------------------------------
The Commission also preliminarily found that the UK PRA Capital
Rules are comparable in purpose and effect to the CFTC Capital Rules
given that both regulatory approaches compute the minimum capital
requirements based on the level of a nonbank SD's on-balance sheet and
off-balance sheet exposures, with the objective and purpose of ensuring
that the nonbank SD's capital is adequate to absorb losses or decreases
in the value of firm assets or increases in the value of firm
liabilities resulting from such exposures. The Commission observed that
the UK PRA Capital Rules and CFTC Capital Rules provide for a
comparable approach to the calculation of market risk and credit risk
exposures using standardized or internal model-based approaches.\127\
In addition, as discussed in the 2024 Proposal, the UK PRA Capital
Rules' and CFTC Capital Rules' requirements for identifying and
measuring on-balance sheet and off-balance sheet exposures under
standardized or internal model-based approaches are also consistent
with the requirements set forth under the BCBS framework for
identifying and measuring on-balance sheet and off-balance sheet
exposures.\128\
---------------------------------------------------------------------------
\127\ 2024 Proposal at 8039-8047.
\128\ Id.
---------------------------------------------------------------------------
Finally, the Commission preliminarily noted that the UK PRA Capital
Rules and CFTC Capital Rules further achieve comparable outcomes and
are comparable in purpose and effect in that both sets of rules limit
the types of capital instruments that qualify as regulatory capital to
cover the on-balance sheet and off-balance sheet risk exposures to high
quality equity capital and qualifying subordinated debt instruments
that meet conditions designed to ensure that the holders of the debt
have effectively subordinated their claims to other creditors of the
nonbank SD.\129\ As discussed in the 2024 Proposal and in section II.B.
below, both the UK PRA Capital Rules and the CFTC Capital Rules define
high quality capital by the degree to which the capital represents
permanent capital that is contributed, or readily available to a
nonbank SD, on an unrestricted basis to absorb unexpected losses,
including losses from swaps trading and other activities, without the
nonbank SD becoming insolvent.\130\
---------------------------------------------------------------------------
\129\ 2024 Proposal at 8039.
\130\ Id.
---------------------------------------------------------------------------
The Commission further stated that it preliminarily found the UK
PRA Financial Reporting Rules to be comparable in purpose and effect to
the CFTC Financial Reporting Rules as both the PRA and CFTC require
nonbank SDs to file periodic financial reports, including unaudited
financial reports and an annual audited financial report, detailing
their financial operations and demonstrating their compliance with
minimum capital requirements.\131\ As discussed in the 2024 Proposal,
in addition to providing the CFTC and the PRA with information
necessary to comprehensively assess the financial condition of a
nonbank SD on an ongoing basis, the financial reports further provide
the CFTC and the PRA with information regarding potential changes in a
nonbank SD's risk profile by disclosing changes in account balances
reported over a period of time.\132\ Such changes in account balances
may indicate, among other things, that the nonbank SD has entered into
new lines of business, has increased its activity in an existing line
of business relative to other activities, or has terminated a previous
line of business.\133\
---------------------------------------------------------------------------
\131\ Id. at 8037.
\132\ Id.
\133\ Id.
---------------------------------------------------------------------------
In assessing the comparability between the CFTC Financial Reporting
Rules and the UK PRA Financial Reporting Rules, the Commission noted
that the prompt and effective monitoring of the financial condition of
nonbank SDs through the receipt and review of periodic financial
reports supports the Commission and the PRA in meeting their respective
objectives of ensuring the safety and soundness of nonbank SDs. In this
regard, the Commission stated that the early identification of
potential financial issues provides the Commission and the PRA with an
opportunity to address such issues with the nonbank SD before they
develop to a state where the financial condition of the firm is
impaired such that it may no longer hold a sufficient amount of
qualifying regulatory capital to absorb decreases in the value of firm
assets, absorb increases in the value of firm liabilities, or cover
losses from its business activities, including the firm's swap dealing
activities and obligations to swap counterparties.\134\
---------------------------------------------------------------------------
\134\ Id.
---------------------------------------------------------------------------
2. Comment Analysis and Final Determination
In response to the Commission's request for comment, Better Markets
identified certain differences between the CFTC Capital Rules and
Financial Reporting Rules and the UK PRA Capital Rules and Financial
Reporting Rules and stated that the differences mandated denial of the
request for a comparability determination.\135\ Better Markets further
stated that the nature and number of conditions that the Commission
deemed necessary to impose are inconsistent with a finding of
comparability.\136\ In this connection, Better Markets also noted that
the imposition of conditions will exacerbate complexity as the
Commission will have to monitor compliance with the conditions,
including reviewing the financial reports of the PRA-designated UK
nonbank SDs and tracking developments in the UK PRA regulatory regime
more generally.\137\ Finally, Better Markets asserted that the proposed
Comparability Order failed to provide sufficient analysis as to exactly
how and why the Commission concluded that the UK and U.S. frameworks
would produce ``comparable outcomes.'' \138\
---------------------------------------------------------------------------
\135\ Better Markets Letter at p. 15.
\136\ Id. at p. 11.
\137\ Id. at p. 16.
\138\ Id. at p. 11.
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[[Page 58548]]
As described herein and in the 2024 Proposal, Commission staff has
engaged in a detailed, comprehensive study and evaluation of the UK PRA
capital and financial reporting framework and has confirmed that its
understanding of the elements and application of the framework is
accurate. The Commission has also concluded, based on its evaluation,
that the PRA has a comprehensive oversight program for monitoring PRA-
designated UK nonbank SDs' compliance with relevant UK PRA Capital
Rules.
Furthermore, as discussed in section I.E. above, the conditions set
forth in the Comparability Order are generally intended to ensure that:
(i) only PRA-designated UK nonbank SDs that are subject to the laws and
regulations assessed under the Comparability Determination are eligible
for substituted compliance; (ii) the PRA-designated UK nonbank SDs are
subject to supervision by the PRA; and (iii) the PRA-designated UK
nonbank SDs provide information to the Commission and NFA that is
relevant to the ongoing supervision of their operations and financial
condition. Considering this thorough analysis, and the ongoing
requirement for PRA-designated UK nonbank SDs to provide information to
the Commission and NFA demonstrating compliance with the Comparability
Order, the Commission is confident that it is capable of effectively
conducting, together with NFA, oversight of the PRA-designated UK
nonbank SDs consistent with the conduct of oversight of U.S.-domiciled
nonbank SDs. In light of the Commission's ultimate conclusion that the
UK PRA capital and financial reporting requirements are comparable
based on the standards articulated in Commission Regulation
23.106(a)(3), the Commission believes that a failure to issue a
Comparability Determination and Comparability Order would in fact
``exacerbate complexity'' as it would impose duplicative requirements
that would result in increased costs for registrants and market
participants without a commensurate benefit from an oversight
perspective.
As discussed in sections I.B. and E. above, and detailed herein,
the Commission finds that the CFTC Capital Rules and Financial
Reporting Rules and the UK PRA Capital Rules and Financial Reporting
Rules are comparable in purpose and effect, and have overall comparable
objectives, notwithstanding the identified differences. In this regard,
the Commission notes that, as described above, instead of conducting a
line-by-line assessment or comparison of the UK PRA Capital and
Financial Reporting Rules and the CFTC Capital and Financial Reporting
Rules, it has applied in the assessment set forth in the determination
and order, a principles-based, holistic approach in assessing the
comparability of both regimes, consistent with the standard of review
it adopted in Commission Regulation 23.106(a)(3). Based on that
principles-based, holistic assessment, the individual elements of which
are described in more detail in sections II.B. through II.F. below, the
Commission has determined that both sets of rules are designed to
ensure the safety and soundness of nonbank SDs and achieve comparable
outcomes. As such, the Commission adopts the Comparability
Determination and Comparability Order as proposed with respect to the
analysis of the regulatory objectives of the CFTC Capital Rules and
Financial Reporting Rules and the UK PRA Capital and Financial
Reporting Rules.
B. Nonbank Swap Dealer Qualifying Capital
1. Preliminary Determination
As discussed in the 2024 Proposal, the Commission preliminarily
determined that the UK PRA Capital Rules are comparable in purpose and
effect to the CFTC Capital Rules with regard to the types and
characteristics of a nonbank SD's equity that qualifies as regulatory
capital in meeting its minimum requirements.\139\ The Commission
explained that the UK PRA Capital Rules and the CFTC Capital Rules for
nonbank SDs both require a nonbank SD to maintain a quantity of high-
quality and permanent capital that, based on the firm's activities and
on-balance sheet and off-balance sheet exposures, is sufficient to
absorb losses and decreases in the value of firm assets and increases
in the value of firm liabilities without resulting in the firm becoming
insolvent.\140\ The Commission observed that the UK PRA Capital Rules
and the CFTC Capital Rules permit nonbank SDs to recognize comparable
forms of equity capital and qualifying subordinated debt instruments
toward meeting minimum capital requirements, with both the UK PRA
Capital Rules and the CFTC Capital Rules emphasizing high quality
capital instruments.\141\
---------------------------------------------------------------------------
\139\ See 2024 Proposal at 8039.
\140\ Id.
\141\ Id.
---------------------------------------------------------------------------
In support of its preliminary Comparability Determination, the
Commission noted that the CFTC Capital Rules require a nonbank SD
electing the Bank-Based Approach to maintain regulatory capital in the
form of common equity tier 1 capital, additional tier 1 capital, and
tier 2 capital in amounts that meet certain stated minimum requirements
set forth in Commission Regulation 23.101.\142\ Common equity tier 1
capital is generally composed of an entity's common stock instruments,
and any related surpluses, retained earnings, and accumulated other
comprehensive income, and is a more conservative or permanent form of
capital that is last in line to receive distributions in the event of
the entity's insolvency.\143\ Additional tier 1 capital is generally
composed of equity instruments such as preferred stock and certain
hybrid securities that may be converted to common stock if triggering
events occur and may have a preference in distributions over common
equity tier 1 capital in the event of an insolvency.\144\ Total tier 1
capital is composed of common equity tier 1 capital and further
includes additional tier 1 capital. Tier 2 capital includes certain
types of instruments that include both debt and equity characteristics
such as qualifying subordinated debt.\145\ Subordinated debt must meet
certain conditions to qualify as tier 2 capital under the CFTC Capital
Rules.\146\
---------------------------------------------------------------------------
\142\ 17 CFR 23.101(a)(1)(i) and 2024 Proposal at 8037-8038. The
terms ``common equity tier 1 capital,'' ``additional tier 1
capital,'' and ``tier 2 capital'' are defined in the bank holding
company regulations of the Federal Reserve Board. 12 CFR 217.20.
\143\ 12 CFR 217.20(b).
\144\ 12 CFR 217.20(c).
\145\ 12 CFR 217.20(d).
\146\ Subordinated debt must meet requirements set forth in SEC
Rule 18a-1d. Specifically, subordinated debt instruments must have a
term of at least one year (with the exception of approved revolving
subordinated debt agreements which may have a maturity term that is
less than one year), and contain terms that effectively subordinate
the rights of lenders to receive any payments, including accrued
interest, to other creditors of the firm. 17 CFR 23.101(a)(1)(i)(B)
and 17 CFR 240.18a-1d.
---------------------------------------------------------------------------
The preliminary Comparability Determination also noted that the UK
PRA Capital Rules require a PRA-designated nonbank SD to maintain an
amount of regulatory capital (i.e., equity capital and qualifying
subordinated debt) equal to or greater than 8 percent of the PRA-
designated UK nonbank SD's total risk exposure, which is calculated as
the sum of the firm's: (i) capital charges for market risk; (ii) risk-
weighted exposure amounts for credit risk; (iii) capital charges for
settlement risk; (iv) credit valuation adjustment (``CVA'') risk of
over-the-counter (``OTC'') derivatives instruments; and (v) capital
charges for operational risk. The UK PRA Capital Rules limit the
composition of regulatory capital to
[[Page 58549]]
common equity tier 1 capital, additional tier 1 capital, and tier 2
capital in a manner consistent with the BCBS framework. Specifically,
the UK PRA Capital Rules provide that a PRA-designated UK nonbank SD's
regulatory capital may be composed of: (i) common equity tier 1 capital
instruments, which generally include the PRA-designated UK nonbank SD's
common equity (stock), retained earnings, and accumulated other
comprehensive income; (ii) additional tier 1 capital instruments, which
includes other forms of capital instruments and certain long-term
convertible debt instruments; and (iii) tier 2 capital instruments,
which include other reserves, hybrid capital instruments, and certain
qualifying subordinated term debt.\147\ Capital instruments that
qualify as common equity tier 1 capital under the UK PRA Capital Rules
include instruments that: (i) are issued directly by the PRA-designated
UK nonbank SD; (ii) are paid in full and not funded directly or
indirectly by the PRA-designated UK nonbank SD; and (iii) are
perpetual.\148\ In addition, the principal amount of the common equity
tier 1 capital instruments may not be reduced or repaid, except in the
liquidation of the PRA-designated UK nonbank SD.\149\ Furthermore, to
qualify as additional tier 1 capital, the capital instruments must meet
certain conditions including: (i) the instruments are issued directly
by the PRA-designated UK nonbank SD and paid in full; (ii) the
instruments are not owned by the PRA-designated UK nonbank SD or its
subsidiaries; (iii) the purchase of the instruments is not funded
directly or indirectly by the PRA-designated UK nonbank SD; (iv) the
instruments rank below tier 2 instruments in the event of the
insolvency of the PRA-designated UK nonbank SD; (v) the instruments are
not secured or guaranteed by the PRA-designated UK nonbank SD or an
affiliate; (vi) the instruments are perpetual and do not include an
incentive for the PRA-designated UK nonbank SD to redeem them; and
(vii) distributions under the instruments are pursuant to defined terms
and may be cancelled under the full discretion of the PRA-designated UK
nonbank SD.\150\ Lastly, subordinated debt instruments must meet
certain conditions to qualify as tier 2 regulatory capital under the UK
PRA Capital Rules, including that the: (i) loans are not granted by the
PRA-designated UK nonbank SD or its subsidiaries; (ii) claims on the
principal amount of the subordinated loans under the provisions
governing the subordinated loan agreement rank below any claim from
eligible liabilities instruments (i.e., certain non-capital
instruments), meaning that they are effectively subordinated to claims
of all non-subordinated creditors of the PRA-designated UK nonbank SD;
(iii) subordinated loans are not secured, or subject to a guarantee
that enhances the seniority of the claim, by the PRA-designated UK
nonbank SD, its subsidiaries, or affiliates; (iv) loans have an
original maturity of at least five years; and (v) provisions governing
the loans do not include any incentive for the principal amount to be
repaid by the PRA-designated UK nonbank SD prior to the loans'
maturity.\151\
---------------------------------------------------------------------------
\147\ 2024 Proposal at 8038.
\148\ Id. and UK CRR, Articles 26 and 28.
\149\ Id.
\150\ Id. and UK CRR, Articles 51-52.
\151\ Id. and UK CRR, Article 63.
---------------------------------------------------------------------------
Based on its comparative assessment, the Commission preliminarily
found that the types and characteristics of the equity instruments that
qualify as common equity tier 1 capital and additional tier 1 capital
under the UK PRA Capital Rules are comparable to the types and
characteristics of equity instruments comprising common equity tier 1
capital and additional tier 1 capital under the CFTC Capital
Rules.\152\ Specifically, the Commission noted that the UK PRA Capital
Rules' common equity tier 1 capital and additional tier 1 capital and
the CFTC Capital Rules' common equity tier 1 capital and additional
tier 1 capital are comparable in that these forms of equity capital
have similar characteristics (e.g., the equity must be in the form of
high-quality, committed, and permanent capital) and represent
contributed equity capital that generally has no priority to the
distribution of firm assets or income with respect to other
shareholders or creditors of the firm, which allows a nonbank SD to use
this equity to absorb decreases in the value of firm assets, absorb
increases in the value of firm liabilities, and cover losses from
business activities, including the firm's swap dealing activities.\153\
---------------------------------------------------------------------------
\152\ See 2024 Proposal at 8039.
\153\ Id.
---------------------------------------------------------------------------
The Commission also found subordinated debt under the UK PRA
Capital Rules comparable to tier 2 capital under the CFTC Capital
Rules.\154\ Specifically, the Commission noted that the qualifying
conditions imposed on subordinated debt instruments are comparable
under the UK PRA Capital Rules and the CFTC Capital Rules in that they
are designed to ensure that the debt has qualities supporting its
recognition by a nonbank SD as equity for capital purposes, including
by effectively subordinating the debt lenders' claims for repayment on
the debt to other creditors of the nonbank SD and by limiting or
restricting repayment of the subordinated loans if such repayments
result in the nonbank SD's equity falling below certain defined
thresholds.\155\ The Commission preliminarily concluded that these
terms and conditions provided assurances that the subordinated debt is
appropriate to be recognized as regulatory capital available to a
nonbank SD to meet its obligations and to absorb business losses and
decreases in the value of firm assets and increases in the value of
firm liabilities.\156\
---------------------------------------------------------------------------
\154\ Id.
\155\ Id.
\156\ Id.
---------------------------------------------------------------------------
2. Comment Analysis and Final Determination
The Commission did not receive comments regarding its preliminary
determination that the UK PRA Capital Rules are comparable in purpose
and effect to the CFTC Capital Rules with regard to the types and
characteristics of a nonbank SD's equity and subordinated debt that
qualifies as regulatory capital in meeting its minimum requirements. In
conclusion, the Commission finds that the UK PRA Capital Rules and the
CFTC Capital Rules are comparable in purpose and effect, and achieve
comparable regulatory outcomes, with respect to the types of capital
instruments that qualify as regulatory capital. Both the UK PRA Capital
Rules and the CFTC Capital Rules limit regulatory capital to permanent
and conservative forms of capital, including common equity, capital
surpluses, retained earnings, and subordinate debt where debt holders
effectively subordinate their claims to repayment to all other
creditors of the nonbank SD in the event of the firm's insolvency.
Limiting regulatory capital to the above categories of equity and debt
instruments promotes the safety and soundness of the nonbank SD by
helping to ensure that the regulatory capital is not withdrawn or
converted to other equity instruments that may have rights or priority
with respect to payments, such as dividends or distributions in
insolvency, over other creditors, including swap counterparties. The
Commission, therefore, is adopting the Comparability Order as proposed
with respect to the types and characteristics of equity and
subordinated debt that qualifies as regulatory capital to meet minimum
[[Page 58550]]
capital requirements under the UK PRA Capital Rules.
C. Nonbank Swap Dealer Minimum Capital Requirement
1. Introduction to Nonbank Swap Dealer Minimum Capital Requirements
As reflected in the 2024 Proposal, the CFTC Capital Rules require a
nonbank SD electing the Bank-Based Approach to maintain regulatory
capital that satisfies each of the following criteria: (i) an amount of
common equity tier 1 capital of at least $20 million; (ii) an aggregate
amount of common equity tier 1 capital, additional tier 1 capital, and
tier 2 capital equal to or greater than 8 percent of the nonbank SD's
total risk-weighted assets, provided that common equity tier 1 capital
comprises at least 6.5 percent of the 8 percent; (iii) an aggregate of
common equity tier 1 capital, additional tier 1 capital, and tier 2
capital in an amount equal to or in excess of 8 percent of the nonbank
SD's uncleared swap margin amount; \157\ and (iv) the amount of capital
required by NFA.\158\
---------------------------------------------------------------------------
\157\ 17 CFR 23.101(a)(1)(i). See also 2024 Proposal at 8039.
The term ``uncleared swap margin'' is defined in Commission
Regulation 23.100 to generally mean the amount of initial margin
that a nonbank SD would be required to collect from each
counterparty for each outstanding swap position of the nonbank SD.
17 CFR 23.100. A nonbank SD must include all swap positions in the
calculation of the uncleared swap margin amount, including swaps
that are exempt or excluded from the scope of the Commission's
uncleared swap margin regulations. A nonbank SD must compute the
uncleared swap margin amount in accordance with the Commission's
margin rules for uncleared swaps. 17 CFR 23.154.
\158\ 17 CFR 23.101(a)(1)(i)(D). See also 2024 Proposal at 8039.
Commission Regulation 23.101(a)(1)(i)(D) sets forth one of the
minimum thresholds that a nonbank SD must meet as the ``the amount
of capital required by a registered futures association.'' As
previously noted, NFA is currently the only entity that is
registered with the Commission as a futures association. NFA has
adopted the Commission's capital requirements as its own
requirements, and has not adopted any additional or stricter minimum
capital requirements. See NFA rulebook, Financial Requirements
Section 18 Swap Dealer and Major Swap Participant Financial
Requirements, available at <a href="http://nfa.futures.org">nfa.futures.org</a>.
---------------------------------------------------------------------------
In comparison, the UK PRA Capital Rules, consistent with the BCBS
framework, require each PRA-designated UK nonbank SD to maintain
sufficient levels of capital to satisfy the following, expressed as a
percentage of the PRA-designated UK nonbank SD's ``total risk exposure
amount'' (i.e., the sum of the PRA-designated UK nonbank SD's risk-
weighted assets and exposures): (i) a common equity tier 1 capital
ratio of 4.5 percent; (ii) a tier 1 capital ratio of 6 percent; and
(iii) a total capital ratio of 8 percent. Furthermore, PRA-designated
UK nonbank SDs must maintain a capital conservation buffer composed of
common equity tier 1 capital in an amount equal to 2.5 percent of the
firm's total risk exposure. The common equity tier 1 capital used to
meet the capital conservation buffer must be separate and in addition
to the 4.5 percent of common equity tier 1 capital required to meet its
core 8 percent capital requirement.\159\ As explained in the 2024
Proposal, the ``total risk exposure amount'' is calculated as the sum
of the PRA-designated UK nonbank SD's: (i) capital requirements for
market risk; (ii) risk-weighted exposure amounts for credit risk; (iii)
capital requirements for CVA risk of OTC derivatives; and (iv) capital
requirements for operational risk.\160\ Capital charges for market risk
and credit risk are computed based on a PRA-designated UK nonbank SD's
on-balance sheet and off-balance sheet exposures, weighted according to
risk.\161\
---------------------------------------------------------------------------
\159\ See 2024 Proposal at 8041-8042.
\160\ Id. at 8042.
\161\ Id.
---------------------------------------------------------------------------
2. Preliminary Determination and Comment Analysis
While noting certain differences in the minimum capital
requirements and calculation of regulatory capital between the UK PRA
Capital Rules and the CFTC Capital Rules, the Commission preliminarily
found that the UK PRA Capital Rules and CFTC Capital Rules achieve,
subject to the conditions in the proposed Comparability Determination
and proposed Comparability Order, comparable outcomes by requiring a
nonbank SD to maintain a minimum level of qualifying regulatory capital
and subordinated debt to absorb losses from the firm's business
activities, including its swap dealing activities, and decreases in the
value of the firm's assets and increases in the firm's liabilities
without the nonbank SD becoming insolvent.\162\ As further discussed
below, the Commission's preliminary finding of comparability was based
on a principles-based, holistic comparative analysis of the three
minimum capital requirement thresholds of the CFTC Capital Rules' Bank-
Based Approach referenced above and the respective elements of the UK
PRA Capital Rules' requirements.
---------------------------------------------------------------------------
\162\ Id. at 8045.
---------------------------------------------------------------------------
a. Fixed Amount Minimum Capital Requirement
As noted above, prong (i) of the CFTC Capital Rules requires each
nonbank SD electing the Bank-Based Approach to maintain a minimum of
$20 million of common equity tier 1 capital. The CFTC's $20 million
fixed-dollar minimum capital requirement is intended to ensure that
each nonbank SD maintains a level of regulatory capital, without regard
to the level of the firm's dealing and other activities, sufficient to
meet its obligations to swap market participants given the firm's
status as a CFTC-registered nonbank SD and to help ensure the safety
and soundness of the nonbank SD.\163\ In comparison, the UK PRA Capital
Rules also contain a requirement that a PRA-designated UK nonbank SD
maintain a fixed amount of minimum initial capital of GBP 750,000.\164\
---------------------------------------------------------------------------
\163\ 85 FR 57462 at 57492.
\164\ 2024 Proposal at 8045.
---------------------------------------------------------------------------
The Commission, in the 2024 Proposal, recognized that the $20
million fixed-dollar minimum capital required under the CFTC Capital
Rules is substantially higher than the GBP 750,000 minimum base capital
required under the UK PRA Capital Rules. Therefore, the Commission
preliminarily proposed a condition that each PRA-designated UK nonbank
SD would be required to maintain, at all times, a minimum amount of
common equity tier 1 capital, as defined in Article 26 of UK CRR,
denominated in GBP equal to or in excess of the equivalent of $20
million.\165\
---------------------------------------------------------------------------
\165\ Id. The Commission also noted that the six current PRA-
designated UK nonbank SDs maintain common equity tier 1 capital in
amounts in excess of the equivalent of $20 million based on
financial filings made with the Commission. Id. (note 255).
---------------------------------------------------------------------------
One commenter, Better Markets, argued that the establishment in the
UK PRA Capital Rules of a base level requirement that is substantially
lower than the CFTC Capital Rules' fixed amount minimum requirement
``demonstrates a fatal lack of comparability.'' \166\ Better Markets
further stated that to compensate for this gap, the Commission proposed
a condition requiring PRA-designated UK nonbank SDs to maintain a
minimum amount of common equity tier 1 capital denominated in GBP equal
to or in excess of the equivalent of $20 million.\167\
---------------------------------------------------------------------------
\166\ Better Markets Letter at p. 13.
\167\ Id.
---------------------------------------------------------------------------
As noted above, the Commission recognized the material difference
in the requirement under the UK PRA Capital Rules and the CFTC Capital
Rules with respect to the $20 million minimum dollar amount of
regulatory capital a nonbank SD is required to maintain. The
Commission's proposed condition, however, effectively addresses this
difference by providing that a PRA-
[[Page 58551]]
designated UK nonbank SD may not avail itself of substituted compliance
unless it maintains a minimum amount of common equity tier 1 capital
denominated in GBP equal to or excess of the equivalent of $20 million.
Furthermore, the imposition of conditions in a Comparability Order, as
discussed in section I.E. above, is authorized by Commission Regulation
23.106(a)(5), which provides that the Commission may issue terms and
conditions as it deems appropriate. In addition, as further noted in
section I.E. above, the Guidance also provides that the Commission may
impose conditions as part of the substituted compliance process to
address a lack of comparable and comprehensive regulation in a home
jurisdiction.\168\ In this connection, the Commission concludes that
requiring PRA-designated UK nonbank SDs to maintain an amount of
regulatory capital in the form of common equity tier 1 items, as
defined in Article 26 of UK CRR, equal to or in excess of the
equivalent of $20 million will impose an equally stringent standard to
the analogue requirement under the CFTC Capital Rules and will
appropriately address the substantially lower minimum fixed amount
capital requirement under the UK PRA Capital Rules.
---------------------------------------------------------------------------
\168\ Guidance at 45343.
---------------------------------------------------------------------------
In conclusion, the Commission finds that the UK PRA Capital Rules
and the CFTC Capital Rules, with the imposition of the condition for
PRA-designated UK nonbank SDs to maintain a minimum level of common
equity tier 1 capital in an amount equivalent to at least $20 million,
are comparable in purpose and effect and achieve comparable outcomes
with respect to capital requirements based on a minimum dollar amount.
The requirement for a nonbank SD with limited swap dealing or other
business activities to maintain a minimum level of regulatory capital
equivalent to $20 million helps to ensure the firm's safety and
soundness by allowing it to absorb decreases in firm assets, absorb
increases in firm liabilities, and meet obligations to swap
counterparties, other creditors, and market participants, without the
firm becoming insolvent.
b. Minimum Capital Requirement Based on Risk-Weighted Assets
Prong (ii) of the CFTC Capital Rules' minimum capital requirements
described above requires each nonbank SD electing the Bank-Based
Approach to maintain an aggregate of common equity tier 1 capital,
additional tier 1 capital, and tier 2 capital in an amount equal to or
greater than 8 percent of the nonbank SD's total risk-weighted assets,
with common equity tier 1 capital comprising at least 6.5 percent of
the 8 percent.\169\ Risk-weighted assets are a nonbank SD's on-balance
sheet and off-balance sheet market risk and credit risk exposures,
including exposures associated with proprietary swap, security-based
swap, equity, and futures positions, weighted according to risk. The
requirements and capital ratios set forth in prong (ii) are based on
the Federal Reserve Board's capital requirements for bank holding
companies and are consistent with the BCBS framework. The requirement
for each nonbank SD to maintain regulatory capital in an amount that
equals or exceeds 8 percent of the firm's total risk-weighted assets is
intended to help ensure that the nonbank SD's level of capital is
sufficient to absorb decreases in the value of the firm's assets and
increases in the value of the firm's liabilities, and to cover
unexpected losses resulting from the firm's business activities,
including losses resulting from uncollateralized defaults from swap
counterparties, without the nonbank SD becoming insolvent.\170\
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\169\ 17 CFR 23.101(a)(1)(i)(B).
\170\ See generally 85 FR 57462 at 57530.
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The UK PRA Capital Rules contain capital requirements for PRA-
designated UK nonbank SDs that the Commission preliminarily found
comparable to the requirements in prong (ii) of the CFTC Capital
Requirements.\171\ Specifically, the UK PRA Capital Rules require a
PRA-designated UK nonbank SD to maintain: (i) common equity tier 1
capital equal to at least 4.5 percent of the PRA-designated UK nonbank
SD's total risk exposure amount; (ii) total tier 1 capital (i.e.,
common equity tier 1 capital plus additional tier 1 capital) equal to
at least 6 percent of the PRA-designated UK nonbank SD's total risk
exposure amount; and (iii) total capital (i.e., an aggregate amount of
common equity tier 1 capital, additional tier 1 capital, and tier 2
capital) equal to at least 8 percent of the PRA-designated UK nonbank
SD's total risk exposure amount. The UK PRA Capital Rules further
require each PRA-designated UK nonbank SD to maintain an additional
capital conservation buffer equal to 2.5 percent of the PRA-designated
UK nonbank SD's total risk exposure amount, which must be met with
common equity tier 1 capital. Thus, a PRA-designated UK nonbank SD is
effectively required to maintain total qualifying regulatory capital in
an amount equal to or in excess of 10.5 percent of the market risk,
credit risk, CVA risk, settlement risk, and operational risk of the
firm (i.e., total capital requirement of 8 percent of risk-weighted
assets and an additional 2.5 percent of risk-weighted assets as a
capital conservation buffer), which is a higher capital ratio than the
8 percent required of nonbank SDs under prong (ii) of the CFTC Capital
Rules.\172\
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\171\ See 2024 Proposal at 8046.
\172\ Id. and UK CRR Articles 26, 28, 50-52, 61-63 and 92, and
PRA Rulebook, CRR Firms, Capital Buffers Part, Chapter 2 Capital
Conservation Buffer.
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The Commission also preliminarily found that the UK PRA Capital
Rules and the CFTC Capital Rules are comparable with respect to the
approaches used in the calculation of risk-weighted asset amounts for
market risk and credit risk in determining the nonbank SD's risk-
weighted assets.\173\ In that regard, the Commission noted that both
regimes require a nonbank SD to use standardized approaches to compute
market risk and credit risk amounts, unless the firm is approved to use
internal models.\174\
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\173\ See 2024 Proposal at 8046.
\174\ Id.
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As the Commission observed, the standardized approaches to
calculating risk-weighted asset amounts for market risk and credit risk
under both sets of rules follow the same structure that is now the
common global standard: (i) allocating assets to categories according
to risk and assigning each a risk weight; (ii) allocating
counterparties according to risk assessments and assigning each a risk
factor; (iii) calculating gross exposures based on valuation of assets;
(iv) calculating a net exposure allowing offsets following well defined
procedures and subject to clear limitations; (v) adjusting the net
exposure by the market risk weights; and finally, (vi) for credit risk
exposures, multiplying the sum of net exposures to each counterparty by
their corresponding risk factor.\175\
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\175\ Id.
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More specifically, with respect to the calculation of standardized
risk-weighted asset amounts for market risk, the Commission explained
that the CFTC Capital Rules incorporate by reference the standardized
market risk charges set forth in Commission Regulation 1.17 for FCMs
and SEC Rule 18a-1 for nonbank security-based swap dealers
(``SBSDs'').\176\ The standardized market risk charges under Commission
Regulation 1.17 and SEC Rule 18a-1 are calculated as a standardized or
table-based percentage of the market value or notional value of the
nonbank SD's marketable securities and derivatives positions, with the
percentages applied
[[Page 58552]]
to the market value or notional value increasing as the expected or
anticipated risk of the positions increases.\177\ For example, CFTC
Capital Rules require nonbank SDs to calculate standardized market
risk-weighted asset amounts for uncleared swaps based on notional
values of the swap positions multiplied by percentages set forth in the
applicable rules.\178\ In addition, market risk-weighted asset amounts
for readily marketable equity securities are calculated by multiplying
the fair market value of the securities by 15 percent.\179\
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\176\ Id. at 8040 and paragraph (3) of the definition of the
term BHC equivalent risk-weighted assets in 17 CFR 23.100.
\177\ See 2024 Proposal at 8040, 17 CFR 1.17(c)(5), and 17 CFR
240.18a-1(c)(1).
\178\ 17 CFR 1.17(c)(5)(iii).
\179\ 17 CFR 1.17(c)(5)(v), referencing SEC Rule 15c3-
1(c)(2)(vi) (17 CFR 240.15c3-1(c)(2)(vi)).
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Under the CFTC Capital Rules, the resulting total market risk-
weighted asset amount is multiplied by a factor of 12.5 to cancel the
effect of the 8 percent multiplication factor applied to all of the
nonbank SD's risk-weighted assets under prong (ii) of the rules'
minimum capital requirements described above. As a result, a nonbank SD
is effectively required to hold qualifying regulatory capital equal to
or greater than 100 percent of the amount of its market risk exposure
amount.\180\
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\180\ 17 CFR 23.100 (definition of BHC equivalent risk-weighted
assets). As noted, a nonbank SD is required to maintain qualifying
capital (i.e., an aggregate of common equity tier 1 capital,
additional tier 1 capital, and tier 2 capital) in an amount that
equals or exceeds 8 percent of its risk-weighted assets. The
regulations, however, require the nonbank SD to effectively maintain
qualifying capital equal to or in excess of 100 percent of its
market risk-weighted assets by requiring the nonbank SD to multiply
its market-risk weighted assets by a factor of 12.5. For example,
the market risk exposure amount for marketable equity securities
with a current fair market value of $250,000 is $37,500 (market
value of $250,000 x .15 standardized market risk factor). The
nonbank SD is required to maintain regulatory capital equal to or in
excess of full market risk exposure amount of $37,500 (risk exposure
amount of $37,500 x 8 percent regulatory capital requirement equals
$3,000; the regulatory capital requirement is then multiplied by a
factor of 12.5, which effectively requires the nonbank SD to hold
regulatory capital in an amount equal to at least 100 percent of the
market risk exposure amount ($3,000 x 12.5 factor equals $37,500)).
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Comparable to the CFTC Capital Rules, the UK PRA Capital Rules
require a PRA-designated UK nonbank SD to calculate its standardized
risk-weighted asset amounts for market risk by multiplying the notional
or carrying amount of net positions by risk-weighting factors, which
are based on the underlying market risk of each asset or exposure and
increase as the expected risk of the positions increases.\181\ The
Commission further explained that a PRA-designated UK nonbank SD is
required to calculate market risk requirements for debt instruments and
equity instruments separately, by computing each category as the sum of
specific risk and general risk of the positions.\182\ As further
discussed in the 2024 Proposal, the UK PRA Capital Rules also require
PRA-designated UK nonbank SDs to include in their risk-weighted assets
market risk exposures to certain foreign currency and gold positions.
Specifically, a PRA-designated UK nonbank SD with net positions in
foreign exchange and gold that exceed 2 percent of the firm's total
capital must calculate capital requirements for foreign exchange
risk.\183\ The capital requirement for foreign exchange risk under the
standardized approach is 8 percent of the PRA-designated UK nonbank
SD's net positions in foreign exchange and gold.\184\ The UK PRA
Capital Rules further require PRA-designated UK nonbank SDs to include
exposures to commodity positions in calculating the firm's risk-
weighted assets. The standardized calculation of commodity risk
exposures may follow one of three approaches depending on type of
position or exposure. The first is the sum of a flat percentage rate
for net positions, with netting allowed among tightly defined sets,
plus another flat percentage rate for the gross position.\185\ The
other two standardized approaches are based on maturity-ladders, where
unmatched portions of each maturity band (i.e., portions that do not
net out to zero) are charged at a step-up rate in comparison to the
base charges for matched portions.\186\
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\181\ See 2024 Proposal at 8042.
\182\ Id. and UK CRR, Article 326. As indicated in Article 326
of UK CRR, securitizations are treated as debt instruments for
market risk requirements.
\183\ 2024 Proposal at 8042 and UK CRR, Article 351.
\184\ Id.
\185\ 2024 Proposal at 8042 and UK CRR, Article 360.
\186\ 2024 Proposal at 8042 and UK CRR, Article 359-361.
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With respect to standardized risk-weighted asset amounts for credit
risk, the Commission explained that under the CFTC Capital Rules, a
nonbank SD must compute its on-balance sheet and off-balance sheet
exposures in accordance with the standardized risk-weighting
requirements adopted by the Federal Reserve Board and set forth in
Subpart D of 12 CFR 217 as if the SD itself were a bank holding company
subject to Subpart D.\187\ Standardized risk-weighted asset amounts for
credit risk are computed by multiplying the amount of the exposure by
defined counterparty credit risk factors that range from 0 percent to
150 percent.\188\ A nonbank SD with off-balance sheet exposures is
required to calculate a risk-weighted amount for credit risk by
multiplying each exposure by a credit conversion factor that ranges
from 0 percent to 100 percent, depending on the type of exposure.\189\
---------------------------------------------------------------------------
\187\ 23.101(a)(1)(i)(B) and paragraph (1) of the definition of
the term BHC equivalent risk-weighted assets in 17 CFR 23.100. See
also 2024 Proposal at 8040.
\188\ 12 CFR 217.32. Lower credit risk factors are assigned to
entities with lower credit risk and higher credit risk factors are
assigned to entities with higher credit risk. For example, a credit
risk factor of 0 percent is applied to exposures to the U.S.
government, the Federal Reserve Bank, and U.S. government agencies
(12 CFR 217.32(a)(1)), and a credit risk factor of 100 percent is
assigned to an exposure to foreign sovereigns that are not members
of the Organization of Economic Co-operation and Development (12 CFR
217.32(a)(2)). See also discussion in 2024 Proposal at 8040.
\189\ 12 CFR 217.33. See also discussion in 2024 Proposal at
8040.
---------------------------------------------------------------------------
In comparison, the Commission noted that the UK PRA Capital Rules
require a PRA-designated UK nonbank SD to calculate its standardized
risk-weighted asset amounts for credit risk in a manner aligned with
the Commission's Bank-Based Approach and the BCBS framework by taking
the carrying value or notional value of each of the PRA-designated UK
nonbank SD's on-balance sheet and off-balance sheet exposures, making
certain additional credit risk adjustments, and then applying specific
risk weights based on the type of counterparty and the asset's credit
quality.\190\ For instance, exposures to the ECB, the UK government,
and the Bank of England, carry a zero percent risk weight; exposures to
other central governments and central banks may carry risk weights
between 0 and 150, depending on the credit rating available for the
central government or central bank; and exposures to banks, PRA-
designated investment firms, or other businesses may carry risk weights
between 20 percent and 150 percent depending on the credit ratings
available for the entity or, for exposures to banks and investment
firms, for the central government of the jurisdiction in which the
entity is incorporated.\191\ If no credit rating is available, the PRA-
designated UK nonbank SD must generally apply a 100 percent risk
weight, meaning the total accounting value of the exposure is
used.\192\
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\190\ 2024 Proposal at 8043 and UK CRR, Articles 111 and 113(1).
\191\ 2024 Proposal at 8043 and UK CRR, Articles 114-122.
\192\ 2024 Proposal at 8043 and UK CRR, Articles 121(2) and
122(2).
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With respect to counterparty credit risk for derivatives positions,
the Commission explained that under the CFTC Capital Rules, a nonbank
SD may compute standardized credit risk
[[Page 58553]]
exposures, using either the current exposure method (``CEM'') or the
standardized approach for measuring counterparty credit risk (``SA-
CCR'').\193\ Both CEM and SA-CCR are non-model, rules-based approaches
to calculating counterparty credit risk exposures for derivatives
positions. Credit risk exposure under CEM is the sum of: (i) the
current exposure (i.e., the positive mark-to-market) of the derivatives
contract; and (ii) the potential future exposure, which is calculated
as the product of the notional principal amount of the derivatives
contract multiplied by a standard credit risk conversion factor set
forth in the rules of the Federal Reserve Board.\194\ Credit risk
exposure under SA-CCR is defined as the exposure at default amount of a
derivatives contract, which is computed by multiplying a factor of 1.4
by the sum of: (i) the replacement costs of the contract (i.e., the
positive mark-to market); and (ii) the potential future exposure of the
contract.\195\ In comparison, the UK PRA Capital Rules require a PRA-
designated UK nonbank SD that is not approved to use credit risk models
to calculate its exposure using the SA-CCR.\196\ The exposure amount
under the SA-CCR is computed, under both the UK PRA Capital Rules and
the Commission's Bank-Based Approach, as the sum of the replacement
cost of the contract and the potential future exposure of the contract,
multiplied by a factor of 1.4.\197\
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\193\ 17 CFR 217.34 and 17 CFR 23.100 (defining the term BHC
risk-weighted assets and providing that a nonbank SD that does not
have model approval may use either CEM or SA-CCR to compute its
exposures for OTC derivative contracts without regard to the status
of its affiliate with respect to the use of a calculation approach
under the Federal Reserve Board's capital rules). See also
discussion in 2024 Proposal at 8040.
\194\ 12 CFR 217.34.
\195\ 12 CFR 217.132(c).
\196\ 2024 Proposal at 8043, UK CRR, Articles 92(3)(f), and PRA
Rulebook, CRR Firms, Counterparty Credit Risk (CRR) Part, Chapter 3
Counterparty Credit Risk (Part Three, Title Two, Chapter Six CRR).
As noted in the 2024 Proposal, PRA-designated UK nonbank SDs with
smaller-sized derivatives business may also use a ``simplified
standardized approach to counterparty credit risk'' or an ``original
exposure method'' as simpler methods for calculating exposure
values. PRA Rulebook, CRR Firms, Counterparty Credit Risk (CRR)
Part, Chapter 3 Counterparty Credit Risk (Part Three, Title Two,
Chapter Six CRR), Articles 281-282. To use either of these
alternative methods, an entity's on-and off-balance sheet
derivatives business must be equal to or less than 10 percent of the
entity's total assets and GBP 260 million or 5 percent of the
entity's total assets and GBP 88 million, respectively. PRA
Rulebook, CRR Firms, Counterparty Credit Risk (CRR) Part, Chapter 3
Counterparty Credit Risk (Part Three, Title Two, Chapter Six CRR),
Article 273a.
\197\ PRA Rulebook, CRR Firms, Counterparty Credit Risk (CRR)
Part, Chapter 3 Counterparty Credit Risk (Part Three, Title Two,
Chapter Six CRR), Article 274 and 12 CFR 217.132(c). See also
discussion in 2024 Proposal at 8043.
---------------------------------------------------------------------------
UK PRA Capital Rules also require a PRA-designated UK nonbank SD to
include its exposures to settlement risk in its calculation of its
risk-weighted assets.\198\ Consistent with the BCBS framework, the
risk-weighted asset amount for settlement risk for transactions settled
on a delivery-versus-payment basis is computed by multiplying the price
difference to which a PRA-designated UK nonbank SD is exposed as a
result of an unsettled transaction by a percentage factor that varies
from 8 percent to 100 percent based on the number of working days after
the settlement due date during which the transaction remains
unsettled.\199\ The CFTC's Bank-Based Approach provides for a similar
calculation methodology for risk-weighted asset amounts for unsettled
transactions involving securities, foreign exchange instruments, and
commodities.\200\
---------------------------------------------------------------------------
\198\ 2024 Proposal at 8043 and UK CRR, Article 378 (indicating
that if transactions in which debt instruments, equities, foreign
currencies and commodities excluding repurchase transactions and
securities or commodities lending and securities or commodities
borrowing are unsettled after their delivery due dates, a PRA-
designated UK nonbank SD must calculate the price difference to
which it is exposed).
\199\ Id. The price difference to which a PRA-designated UK
nonbank SD is exposed is the difference between the agreed
settlement price for an instrument (i.e., a debt instrument, equity,
foreign currency or commodity) and the instrument's current market
value, where the difference could involve a loss for the firm. UK
CRR, Article 378.
\200\ 17 CFR 23.100 (definition of BHC equivalent risk-weighted
assets), 12 CFR 217.38 and 12 CFR 217.136.
---------------------------------------------------------------------------
Consistent with the BCBS framework, a PRA-designated UK nonbank SD
is also required to calculate a CVA risk-weighted asset amount for OTC
derivative instruments to reflect the current market value of the
credit risk of the counterparty to the PRA-designated UK nonbank
SD.\201\ Risk-weighted asset amounts for CVA risk can be calculated
following similar methodologies as those described in Subpart E of the
Federal Reserve Board's part 217 regulations.\202\
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\201\ 2024 Proposal at 8043 and UK CRR, Articles 381 and 382(1).
\202\ UK CRR, Articles 383-384 and 12 CFR 217.132(e)(5) and (6).
Under the CFTC's Bank-Based Approach, nonbank SDs calculating their
credit risk-weighted assets using the regulations in Subpart D of
the Federal Reserve Board's Part 217 regulations do not calculate
CVA of OTC derivatives instruments.
---------------------------------------------------------------------------
As discussed in the 2024 Proposal, both the CFTC Capital Rules and
the UK PRA Capital Rules also provide that, if approved by NFA or the
PRA, respectively, nonbank SDs may also use internal models to
calculate market and/or credit risk exposures.\203\ The Commission
noted that the internal market and credit risk models under the UK PRA
Capital Rules and the CFTC Capital Rules are based on the BCBS
framework and preliminarily found that such models must meet comparable
quantitative and qualitative requirements covering the same risks,
though with slightly different categorization, and including comparable
model risk management requirements.\204\ In this regard, the Commission
observed that both rule sets address the same types of risk, with
similar allowed methodologies and under similar controls.\205\ The
Commission also preliminarily determined that the UK PRA Capital Rules
and the CFTC Capital Rules are comparable with respect to the
requirement that nonbank SDs account for operational risk in computing
their minimum capital requirements.\206\ In this connection, the
Commission noted that the UK PRA Capital Rules require a PRA-designated
UK nonbank SD to calculate an operational risk exposure as a component
of the firm's total risk exposure amount.\207\ PRA-designated UK
nonbank SDs may use either a standardized approach or, if the PRA-
designated UK nonbank has obtained regulatory permission, an internal
approach based on the firm's own measurement systems, to calculate
their risk-weighted asset amounts for
[[Page 58554]]
operational risk. The CFTC Capital Rules address operational risk both
as a stand-alone, separate minimum capital requirement that a nonbank
SD is required to meet under prong (iii) of the Bank-Based Approach and
as a component of the calculation of risk-weighted assets for nonbank
SDs that use Subpart E of the Federal Reserve Board's part 217
regulations to calculate their credit risk-weighted assets via internal
models.\208\
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\203\ See 2024 Proposal at 8040-8041 and 8043, respectively, for
discussions of NFA and PRA model approvals. In discussing approval
requirements for credit risk models as part of the general overview
of the UK PRA Capital Rules, the Commission referred generally to
counterparty credit risk exposures for ``OTC derivatives
transactions.'' See 2024 Proposal at 8034-8035 (n. 115). For
clarity, the Commission notes that the Internal Model Methodology
for counterparty credit risk set out in UK CRR, Articles 283-294,
can be used for the derivatives listed in Annex II of UK CRR,
securities financing transactions, and long settlement transactions.
PRA Rulebook, CRR Firms, Counterparty Credit Risk (CRR) Part,
Article 273.
\204\ See 2024 Proposal at 8046. For a discussion of the
qualitative and quantitative requirements that models must meet
under the CFTC Capital Rules and the UK PRA Capital Rules, see 2024
Proposal at 8040-8041 and 8043-8044, respectively. In discussing
model approval conditions, the Commission noted that PRA-designated
UK nonbank SDs were not permitted to use internal models to
calculate counterparty credit risk amounts for large exposures. See
2024 Proposal at 8043 and 8044 (n. 217 and n. 237). The Commission
notes that this statement is not correct with regard to securities
financing transactions. PRA-designated UK nonbank SDs are allowed to
use internal models to calculate exposure values for securities
financing transactions. PRA Rulebook, CRR Firms, Large Exposures
(CRR) Part, Chapter 4 Large Exposures (Part Four CRR), Article 390.
\205\ See 2024 Proposal at 8046.
\206\ Id.
\207\ Id. and UK CRR, Article 92(3).
\208\ Id. and 17 CFR 23.101(a)(1)(i) and 17 CFR 23.100
(definition of BHC equivalent risk-weighted assets).
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Only one commenter specifically addressed the Commission's
comparative analysis of the minimum capital requirement based on risk-
weighted assets. The commenter, Ravnitzky, stated that the UK PRA
Capital Rules and the CFTC Capital Rules differ in several areas,
including in their approaches to calculating risk-weighted amounts for
market risk and credit risk.\209\ Ravnitzky asserted that unlike the UK
PRA Capital Rules, which use a standardized approach, the CFTC Capital
Rules use a model-based approach to calculating risk-weighted
amounts.\210\ The Commission notes that this description of the
respective rule sets is not accurate. As discussed above, the currently
applicable UK PRA Capital Rules and CFTC Capital Rules both incorporate
standardized and model-based approaches to calculating market risk and
credit risk amounts.\211\
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\209\ Ravnitzky Letter at pp. 3-4.
\210\ Id.
\211\ As noted in the 2024 Proposal, the Commission is aware
that the PRA is considering changes to the UK PRA Capital Rules to
implement Basel 3.1 standards. If the PRA proceeds with the
implementation of the Basel 3.1 standards as proposed, the
regulatory changes would be applicable after July 1, 2025 with a
4.5-year transitional period ending on January 1, 2030. The
Commission will monitor progress on the PRA's proposed regulatory
changes and may amend or supplement the Comparability Order, as
appropriate. 2024 Proposal at 8036 (n. 128).
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In conclusion, the Commission finds that the UK PRA Capital Rules
and the CFTC Capital Rules are comparable in purpose and effect with
respect to the computation of minimum capital requirements based on a
nonbank SD's risk-weighted assets. In this regard, the Commission finds
that the UK PRA Capital Rules and the CFTC Capital rules have a
comparable approach to the computation of market risk exposure amounts
and credit risk exposure amounts for on-balance sheet and off-balance
sheet exposures, which are intended to ensure that a nonbank SD
maintains a sufficient level of regulatory capital to absorb decreases
in firm assets, absorb increases in firm liabilities, and meet
obligations to counterparties and creditors, without the firm becoming
insolvent.
c. Minimum Capital Requirement Based on the Uncleared Swap Margin
Amount
As noted above, prong (iii) of the CFTC Capital Rules' Bank-Based
Approach requires a nonbank SD to maintain regulatory capital in an
amount equal to or greater than 8 percent of the firm's total uncleared
swap margin amount associated with its uncleared swap transactions to
address potential operational, legal, and liquidity risks.\212\
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\212\ More specifically, in establishing the requirement that a
nonbank SD must maintain a level of regulatory capital in excess of
8 percent of the uncleared swap margin amount associated with the
firm's swap transactions, the Commission stated that the intent of
the uncleared swap margin amount was to establish a method of
developing a minimum amount of capital for a nonbank SD to meet all
of its obligations as an SD to market participants, and to cover
potential operational risk, legal risk and liquidity risk, and not
just the risks of its trading portfolio. 85 FR 57462 at 57485.
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The UK PRA Capital Rules differ from the CFTC Capital Rules in that
they do not impose a capital requirement on PRA-designated UK nonbank
SDs based on a percentage of the margin for uncleared swap
transactions.\213\ In the 2024 Proposal, the Commission described,
however, how certain UK PRA capital and liquidity requirements may
compensate for the lack of direct analogue to the 8 percent uncleared
swap margin amount requirement.\214\ Specifically, the Commission noted
that under the UK PRA Capital Rules the total risk exposure amount is
computed as the sum of the PRA-designated UK nonbank SD's risk-weighted
asset amounts for market risk, credit risk, settlement risk, CVA risk
of OTC derivatives instruments, and operational risk.\215\ Notably, the
UK PRA Capital Rules require that PRA-designated UK nonbank SDs,
including firms that do not use internal models, calculate capital
charges for operational risk as a separate component of the total risk
exposure amount. The UK PRA Capital Rules also impose separate
liquidity requirements designed to ensure that the PRA-designated UK
nonbank SDs can meet both short- and long-term obligations, in addition
to the general requirement to maintain processes and systems for the
identification of liquidity risk.\216\ In comparison, the Commission
requires nonbank SDs to maintain a risk management program covering
liquidity risk, among other risk categories, but does not have a
distinct liquidity requirement.\217\
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\213\ See 2024 Proposal at 8046-8047.
\214\ Id.
\215\ Id. at 8047 and UK CRR, Article 92(3).
\216\ Id. More specifically, the UK PRA Capital Rules impose
separate liquidity buffers and ``stable funding'' requirements
designed to ensure that PRA-designated UK nonbank SDs can cover both
long-term obligations and short-term payment obligations under
stressed conditions for 30 days. PRA Rulebook, CRR Firms, Liquidity
(CRR) Part, Chapter 4 Liquidity (Part Six CRR), Article 412-413. In
addition, PRA-designated UK nonbank SDs are required to maintain
robust strategies, policies, processes, and systems for the
identification of liquidity risk over an appropriate set of time
horizons, including intra-day. PRA Rulebook, CRR Firms, Internal
Liquidity Adequacy Assessment Part.
\217\ See 2024 Proposal at 8047. Specifically, Commission
Regulation 23.600(b) requires each SD to establish, document,
maintain, and enforce a system of risk management policies and
procedures designed to monitor and manage the risks related to
swaps, and any products used to hedge swaps, including futures,
options, swaps, security-based swaps, debt or equity securities,
foreign currency, physical commodities, and other derivatives. The
elements of the SD's risk management program are required to include
the identification of risks and risk tolerance limits with respect
to applicable risks, including operational, liquidity, and legal
risk, together with a description of the risk tolerance limits set
by the SD and the underlying methodology in written policies and
procedures. 17 CFR 23.600.
---------------------------------------------------------------------------
Addressing the Commission's request for comment on the
comparability between the CFTC's capital requirement based on a
percentage of the margin for uncleared swap transactions and the UK PRA
Capital Rules' requirements with respect to operational risk and
liquidity risk, one commenter, Better Markets, asserted that the
requirement for PRA-designated UK nonbank SDs to hold qualifying
regulatory capital to cover operational risk is not comparable to the
CFTC's requirement for nonbank SDs to hold qualifying capital in an
amount equal to at least 8 percent of the nonbank SD's uncleared swap
margin amount.\218\ Better Markets further asserted that the proposed
Comparability Determination fell short in furnishing an adequate
analysis substantiating that the incorporation of an operational risk
charge and the existence of separate liquidity requirements would
genuinely yield an equivalent result.\219\ Furthermore, Better Markets
argued that the Commission should have undertaken ``an examination to
ascertain whether the PRA-designated UK nonbank SD's operational risk
charge and liquidity requirements would adequately cover [its]
cumulative amounts of uncleared swaps margin.'' \220\
---------------------------------------------------------------------------
\218\ Better Markets Letter at p. 13.
\219\ Id.
\220\ Id.
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The Applicants offered a contrasting view in their comment letter,
stating that, although the UK PRA Capital Rules do not ``have a direct
analogue to the 8 percent uncleared swap margin requirement'' under the
CFTC Capital
[[Page 58555]]
Rules, they have ``various other measures that achieve the same
regulatory objective of ensuring that an SD maintains an amount of
capital that is sufficient to cover the full range of risks a PRA-
designated UK nonbank SD may face.'' \221\ In support of the statement,
the Applicants discussed, among other measures, the various categories
of risk charges that a PRA-designated UK nonbank SD is required to
include in its total risk exposure amount, as well as the capital
conservation buffer, leverage ratio floor, and liquidity requirements
that the UK PRA Capital Rules impose on PRA-designated UK nonbank
SDs.\222\
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\221\ Applicants' Letter at p. 3.
\222\ Id. at pp. 2-3. As discussed in the 2024 Proposal, the UK
PRA Capital Rules impose a 3.35 percent leverage ratio floor on PRA-
designated UK nonbank SDs that hold significant amounts of non-UK
assets, as an additional element of the capital requirements.
Specifically, a PRA-designated UK nonbank SD that has non-UK assets
equal to or greater than GBP 10 billion is required to maintain tier
1 capital (i.e., an aggregate of common equity tier 1 capital and
additional tier 1 capital) equal to or in excess of 3.35 percent of
the firm's on-balance sheet and off-balance sheet exposures,
including exposures on uncleared swaps but excluding certain
exposures to central banks, without regard to any risk-weighting.
See 2024 Proposal at 8034 and PRA Rulebook, CRR Firms, Leverage
Ratio (CRR) Part, Chapter 3 Leverage Ratio (Part Seven CRR), Article
429 et seq.
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The Commission finds that the additional categories of risk-
weighted asset amounts that PRA-designated UK nonbank SDs are required
to include in the total risk-weighted assets amount, as well as the
various regulatory measures seeking to ensure that PRA-designated UK
nonbank SDs hold sufficient capital to cover the full range of risks
that they may face, support the comparability of the UK PRA Capital
Rules and the CFTC Capital Rules even in the absence of a separate
capital requirement in the UK PRA Capital Rules requiring PRA-
designated UK nonbank SDs to have qualified capital equal to or greater
than 8 percent of the amount of uncleared swap margin. The Commission
notes that the minimum capital requirement based on a percentage of the
nonbank SD's uncleared swap margin amount was conceived as a proxy, not
an exact measure, for inherent risk in the SD's positions and
operations, including operational risk, legal risk, and liquidity
risk.\223\ As the Commission noted in adopting the CFTC Capital Rules,
although the amount of capital required of a nonbank SD under the
uncleared swap margin calculation is directly related to the volume,
size, complexity, and risk of the covered SD's positions, the minimum
capital requirement is intended to cover a multitude of potential risks
faced by the SD.\224\ The Commission understands that other
jurisdictions may adopt alternative measures to cover the same risks.
As such, a strict comparison between the amounts that a PRA-designated
UK nonbank SD holds to account for operational risk and liquidity risk
pursuant to the UK PRA Capital Rules and the amount of uncleared swap
margin that a PRA-designated UK nonbank SD would have been required to
hold pursuant to the CFTC Capital Rules is not warranted. As discussed
in section I.E. above, the Commission's analysis in ascertaining the
comparability of a foreign jurisdiction's capital rules to the CFTC
Capital Rules is focused on determining whether the foreign
jurisdiction's rules have comparable regulatory objectives and achieve
comparable outcomes. Following this standard of review, the Commission
finds that the various measures that the UK PRA Capital Rules have
established to help ensure that PRA-designated UK nonbank SDs hold
sufficient capital to cover the full range of risks that they face have
comparable objectives and achieve comparable outcomes.
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\223\ 85 FR 57462 at 57497.
\224\ 85 FR 57462 at 57485 and 57497.
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In conclusion, the Commission finds that the UK PRA Capital Rules
and the CFTC Capital Rules are comparable in purpose and effect with
respect to the requirement that a nonbank SD's minimum level of
regulatory capital reflects potential operational risk exposures in
addition to market risk and credit risk exposures. The Commission
emphasizes that the intent of the minimum capital requirement based on
a percentage of the nonbank SD's uncleared swap margin is to establish
a minimum capital requirement that would help ensure that the nonbank
SD meets its obligations as an SD to market participants, and to cover
potential operational risk, legal risk, and liquidity risk in addition
to the risks associated with its trading portfolio.\225\ The UK PRA
Capital Rules address comparable risks albeit not through a requirement
based on a UK nonbank SD's uncleared swap margin amount. In this
regard, UK nonbank SDs are required to maintain a minimum level of
regulatory capital based on an aggregate of the firm's total risk-
weighted asset amounts for market risk, credit risk, and operational
risk. Accordingly, the Commission has determined that, notwithstanding
the differences in approaches, the UK PRA Capital Rules and CFTC
Capital Rules are comparable in purpose and effect in requiring nonbank
SDs to maintain a minimum level of regulatory capital that addresses
potential market risk, credit risk, and operational risk to help ensure
the safety and soundness of the firm, and to ensure that the firm has
sufficient capital to absorb decreases in firm assets, absorb increases
in firm liabilities, and meet obligations to counterparties and
creditors, without the firm becoming insolvent.
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\225\ See 2024 Proposal at 8040 (referencing 85 FR 57462).
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3. Final Determination
Based on its analysis of comments and its holistic assessment of
the respective requirements discussed in sections II.C.2.a., b., and c.
above, the Commission adopts the Comparability Determination and
Comparability Order as proposed with respect to the minimum capital
requirements and calculation of regulatory capital, subject to the
condition that PRA-designated UK nonbank SDs must maintain a minimum
level of regulatory capital in the form of common equity tier 1 capital
that equals or exceeds the equivalent of $20 million U.S. dollars.
D. Nonbank Swap Dealer Financial Reporting Requirements
1. Proposed Determination
The Commission detailed the requirements of the CFTC Financial
Reporting Rules in the 2024 Proposal.\226\ Specifically, the 2024
Proposal noted that the CFTC Financial Reporting Rules require nonbank
SDs to file with the Commission and NFA periodic unaudited and annual
audited financial reports.\227\ The unaudited financial reports must
include: (i) a statement of financial condition; (ii) a statement of
income/loss; (iii) a statement demonstrating compliance with, and
calculation of, the applicable regulatory minimum capital requirement;
(iv) a statement of changes in ownership equity; (v) a statement of
changes in liabilities subordinated to claims of general creditors; and
(vi) such further material information necessary to make the required
statements not misleading.\228\ The annual audited financial reports
must include the same financial statements that are required to be
included in the unaudited financial reports, and must further include:
(i) a statement of cash flows; (ii) appropriate footnote disclosures;
and (iii) a reconciliation of any material differences between the
financial statements contained in the annual audited financial reports
and the financial statements contained in the
[[Page 58556]]
unaudited financial reports prepared as of the nonbank SD's year-end
date.\229\ In addition, a nonbank SD must attach to each unaudited and
audited financial report an oath or affirmation that to the best
knowledge and belief of the individual making the affirmation the
information contained in the financial report is true and correct.\230\
The individual making the oath or affirmation must be a duly authorized
officer if the nonbank SD is a corporation, or one of the persons
specified in the regulation for business organizations that are not
corporations.\231\
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\226\ 2024 Proposal at 8047-8048.
\227\ Id. and 17 CFR 23.105(d) and (e).
\228\ Id. and 17 CFR 23.105(d)(2).
\229\ Id. and 17 CFR 23.105(e)(4).
\230\ Id. at 8048 and 17 CFR 23.105(f).
\231\ Id.
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The CFTC Financial Reporting Rules also require a nonbank SD to
file the following financial information with the Commission and NFA on
a monthly basis: (i) a schedule listing the nonbank SD's financial
positions reported at fair market value; \232\ (ii) schedules showing
the nonbank SD's counterparty credit concentration for the 15 largest
exposures in derivatives, a summary of its derivatives exposures by
internal credit ratings, and the geographic distribution of derivatives
exposures for the 10 largest countries; \233\ and (iii) for nonbank SDs
approved to use internal capital models, certain model metrics, such as
aggregate value-at-risk (``VaR''), a graph reflecting the daily intra-
month VaR for each business line, and counterparty credit risk
information.\234\
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\232\ 2024 Proposal at 8048, Regulation 23.105(l), and Schedule
1 of Appendix B to Subpart E of Part 23 (``Schedule 1''). 17 CFR
23.105(l) and 17 CFR Appendix B to Subpart E of Part 23. Schedule 1
includes a nonbank SD's holding of U.S Treasury securities, U.S.
government agency debt securities, foreign debt and equity
securities, money market instruments, corporate obligations, spot
commodities, and cleared and uncleared swaps, security-based swaps,
and mixed swaps in addition to other position information.
\233\ 2024 Proposal 8048 and schedules 2, 3 and 4, respectively,
of Appendix B to Subpart E of Part 23.
\234\ 2024 Proposal 8048 and 17 CFR 23.105(k) and (l), and
schedules 2, 3 and 4 of Appendix B to Subpart E of Part 23.
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The CFTC Financial Reporting Rules further require a nonbank SD to
provide the Commission and NFA with information regarding the
custodianship of margin for uncleared swap transactions (``Margin
Report'').\235\ The Margin Report must contain: (i) the name and
address of each custodian holding initial margin or variation margin on
behalf of the nonbank SD or its swap counterparties; (ii) the amount of
initial and variation margin required by the uncleared margin rules
held by each custodian on behalf of the nonbank SD and on behalf its
swap counterparties; and (iii) the aggregate amount of initial margin
that the nonbank SD is required to collect from, or post with, swap
counterparties for uncleared swap transactions subject to the uncleared
margin rules.\236\
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\235\ 2024 Proposal 8048 and 17 CFR 23.105(m).
\236\ Id.
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A nonbank SD electing the Bank-Based Capital Approach is required
to file the unaudited financial report, Schedule 1, schedules of
counterparty credit exposures, and the Margin Report with the
Commission and NFA no later than 17 business days after the applicable
month-end reporting date.\237\ A nonbank SD must file its annual report
with the Commission and NFA no later than 60 calendar days after the
end of its fiscal year.\238\
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\237\ Id.
\238\ Id.
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The 2024 Proposal also detailed relevant financial reporting
requirements of the UK PRA Financial Reporting Rules.\239\ The UK PRA
Financial Reporting Rules require a PRA-designated UK nonbank SD to
report information to the PRA concerning its capital and financial
condition sufficient to provide a comprehensive view of the firm's risk
profile, including information on the firm's capital requirements,
leverage ratio, large exposures, and liquidity requirements.\240\ PRA-
designated UK nonbank SDs must follow the templates and instructions
provided in the PRA Rulebook for purposes of the prudential
requirements reporting referred to COREP.\241\ Under the COREP
requirements, PRA-designated UK nonbank SDs are required to provide, on
a quarterly basis,\242\ calculations in relation to the PRA-designated
UK nonbank SD's capital and capital requirements,\243\ capital ratios
and capital levels,\244\ and market risk,\245\ among other items.
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\239\ 2024 Proposal at 8048-8050.
\240\ 2024 Proposal at 8048-8049 and PRA Rulebook, CRR Firms,
Reporting (CRR) Part, Chapter 4 Reporting (Part Seven A CRR), Rule
1.
\241\ PRA Rulebook, CRR Firms, Reporting (CRR) Part, Chapter 6
Templates and Instructions.
\242\ PRA Rulebook, CRR Firms, Reporting (CRR) Part, 5 Reporting
Requirements, Chapter 3 Format and Frequency of Reporting on Own
Funds, Own Funds Requirements.
\243\ PRA Rulebook, CRR Firms, Reporting (CRR) Part, Chapter 6
Templates and Instructions, Annex I, Templates C 01.00 and C 02.00.
\244\ PRA Rulebook, CRR Firms, Reporting (CRR) Part, Chapter 6
Templates and Instructions, Annex I, Template C 03.00.
\245\ PRA Rulebook, CRR Firms, Reporting (CRR) Part, Chapter 6
Templates and Instructions, Annex I, Template C 02.00.
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In addition to the prudential requirements reporting, Article
430(3) of the Reporting (CRR) Part of the PRA Rulebook imposes
financial information reporting on PRA-designated UK nonbank SDs that
are subject to section 403(1) of the Companies Act 2006 (i.e., entities
that are parent companies \246\ and report on a consolidated basis
using UK-adopted International Financial Reporting Standards (IFRS) and
that issue securities admitted to trading on a UK-regulated
market).\247\ The relevant reporting templates and instructions,
referred to as FINREP, are included in Chapter 6 of the Reporting (CRR)
Part of the PRA Rulebook. Under the FINREP requirements, PRA-designated
UK nonbank SDs subject to the requirements of Article 430(3) of the
Reporting (CRR) Part of the PRA Rulebook are required to provide the
following documents to the PRA, among other items: (i) on a quarterly
basis, a balance sheet statement (or statement of financial position)
that reflects the PRA-designated UK nonbank SD's financial condition;
\248\ (ii) on a quarterly basis, a statement of profit or loss; \249\
(iii) on a quarterly basis, a breakdown of financial liabilities by
product and by counterparty sector; \250\ (iv) on a quarterly basis, a
listing of subordinated financial liabilities; \251\ and (v) on an
annual basis, a statement of changes in equity.\252\
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\246\ A parent company (i.e., ``parent undertaking'') is defined
in Companies Act 2006, Section 1162.
\247\ PRA Rulebook, CRR Firms, Reporting (CRR) Part, Chapter 4
Reporting (Part Seven A CRR), Article 430, Rule 3. The International
Accounting Standards Board is an independent, private-sector body
that develops and approves IFRS.
\248\ PRA Rulebook, CRR Firms, Reporting (CRR) Part, Chapter 6
Templates and Instructions, Templates 1.1., 1.2., and 1.3 at Annex
III (for reporting according to IFRS) and Templates 1.1., 1.2., and
1.3 at Annex IV (for reporting according to national accounting
frameworks).
\249\ PRA Rulebook, CRR Firms, Reporting (CRR) Part, Chapter 6
Templates and Instructions, Template 2 at Annex III (for reporting
according to IFRS) and Template 2 at Annex IV (for reporting
according to national accounting frameworks).
\250\ PRA Rulebook, CRR Firms, Reporting (CRR) Part, Chapter 6
Templates and Instructions, Template 8.1 at Annex III (for reporting
according to IFRS) and Template 8.1 at Annex IV (for reporting
according to national accounting frameworks).
\251\ PRA Rulebook, CRR Firms, Reporting (CRR) Part, Chapter 6
Templates and Instructions, Template 8.2 at Annex III (for reporting
according to IFRS) and Template 8.2. at Template 8.2 at Annex IV
(for reporting according to national accounting frameworks).
\252\ PRA Rulebook, CRR Firms, Reporting (CRR) Part, Chapter 6
Templates and Instructions, Template 46 at Annex III (for reporting
according to IFRS) and Template 46 at Annex IV (for reporting
according to national accounting frameworks).
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Under the FINREP requirements, a PRA-designated UK nonbank SD
subject to the requirements of Article 430(3) of the Reporting (CRR)
Part of the PRA Rulebook is also required to provide the PRA with
additional financial information, including a breakdown of
[[Page 58557]]
its loans and advances by product and type of counterparty,\253\ as
well as detailed information regarding its derivatives trading
activities,\254\ collateral, and guarantees.\255\
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\253\ PRA Rulebook, CRR Firms, Reporting (CRR) Part, Chapter 6
Templates and Instructions, Templates 5.1 and 6.1 at Annex III (for
reporting according to IFRS) and Templates 5.1 and 6.1 at Annex IV
(for reporting according to national accounting frameworks).
\254\ PRA Rulebook, CRR Firms, Reporting (CRR) Part, Chapter 6
Templates and Instructions, Template 10 at Annex III (for reporting
according to IFRS) and Template 10 at Annex IV (for reporting
according to national accounting frameworks).
\255\ PRA Rulebook, CRR Firms, Reporting (CRR) Part, Chapter 6
Templates and Instructions, Template 13 at Annex III (for reporting
according to IFRS) and Template 13 at Annex IV (for reporting
according to national accounting frameworks).
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For PRA-designated UK nonbank SD that are not subject to financial
information reporting under Article 430(3) of the Reporting (CRR) Part
of the PRA Rulebook, the Regulatory Reporting Part of the PRA Rulebook
dictates the applicable reporting requirements.\256\ Specifically, as
firms that fall into Regulated Activity Group 3 (``RAG 3''), PRA-
designated UK nonbank SDs are required to provide the following
documents to the PRA, among other items: (i) on a quarterly basis, a
balance sheet statement (or statement of financial position) that
reflects the PRA-designated UK nonbank SD's financial condition; \257\
(ii) on a quarterly basis, a statement of profit or loss; \258\ and
(iii) on an annual basis, an annual report and accounts.\259\ The
Applicants represented that the six UK PRA-designated nonbank SDs
currently registered with the Commission are designated as RAG 3 firms
and are required to provide the aforementioned documents.\260\
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\256\ As indicated by the Applicants, the Regulatory Reporting
Part of the PRA Rulebook applies to all PRA-designated UK nonbank
SDs. See Responses to Staff Questions dated October 5, 2023.
\257\ PRA Rulebook, CRR Firms, Regulatory Reporting Part,
Chapter 9 Regulated Activity Group 3, Rule 9.2 (referencing
Templates 1.1., 1.2., and 1.3 at Annex III and Templates 1.1., 1.2.,
and 1.3 at Annex IV of Chapter 6 of the Reporting (CRR) Part) and
Rule 9.3.
\258\ PRA Rulebook, CRR Firms, Regulatory Reporting Part,
Chapter 9 Regulated Activity Group 3, Rule 9.2 (referencing Template
2 at Annex III and Template 2 at Annex IV of Chapter 6 of the
Reporting (CRR) Part) and Rule 9.3.
\259\ PRA Rulebook, CRR Firms, Regulatory Reporting Part,
Chapter 9 Regulated Activity Group 3, Rule 9.2 and Rule 9.3.
\260\ See Response to Staff Questions dated October 5, 2023. For
the avoidance of doubt, as represented by the Applicants, the six
PRA-designated UK nonbank SDs currently registered with the
Commission are subject to the RAG 3 requirements in the Regulatory
Reporting Part of the PRA Rulebook but are not subject the FINREP
requirements set forth in Article 430(3) of the Reporting (CRR) Part
of the PRA Rulebook. As such, the six PRA-designated UK nonbank SDs
currently registered with the Commission are required to submit to
the PRA only Templates 1 through 3 of FINREP.
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Furthermore, all PRA-designated UK nonbank SDs are required to
prepare annual audited accounts and a strategic report (together,
``annual audited financial report'') pursuant to Parts 15 and 16 of the
Companies Act 2006.\261\ The audit of the accounts and report is
required to be performed by one or more independent statutory auditors,
which have the required skill, resources, and experience to perform
their duties based on the complexity of the firm's business and the
regulatory requirements to which the firm is subject.\262\ PRA-
designated UK nonbank SDs must submit the annual audited financial
report to the PRA within 80 business days from the firm's accounting
reference date.\263\ In addition, under generally applicable company
law requirements, PRA-designated UK nonbank SDs are required to submit
the annual audited financial report to the UK Registrar of
Companies.\264\ The registrar makes the report available to the public
on its website, free of charge.\265\
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\261\ Companies Act 2006, Sections 393 to 414D and 475. Section
475 provides for an exemption from the audit requirement for certain
entities (i.e., ``small companies'', qualifying ``subsidiary
companies'' and ``dormant companies''.) None of the six PRA-
designated UK nonbank SD, however, falls into the exempt categories.
See Responses to Staff Questions dated October 5, 2023.
\262\ Companies Act 2006, Section 485 et seq.; see also PRA
Rulebook, CRR Firms, Auditors Part, Rule 3 Auditors' Qualifications,
and Rule 4 Auditors' Independence.
\263\ PRA Rulebook, CRR Firms, Regulatory Reporting Part,
Chapter 9 Regulatory Activity Group 3, Rules 9.1. and 9.4. The
``accounting reference date'' is determined in accordance with
Section 391 of the Companies Act 2006 and depending on the firm's
date of incorporation.
\264\ Companies Act 2006, Section 441. The deadline for filing
the annual audited financial report with the UK Registrar of
Companies is nine months from the firm's accounting reference date
for private companies and six months from the firm's accounting
reference date for public companies. Id., Articles 442 (setting
forth the filing deadlines by category of firm) and 391 (defining
the terms ``accounting reference period'' and ``accounting reference
date'').
\265\ Companies Act 2006, Sections 1080 and 1085. Information
filed with the UK Registrar of Companies is available at: <a href="https://www.gov.uk/government/organisations/companies-house">https://www.gov.uk/government/organisations/companies-house</a>.
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The annual audited accounts must comprise, at a minimum, a balance
sheet, a profit and loss statement, and notes about the accounts.\266\
The auditor's audit report must include: (i) a description of the
annual accounts subject to the audit and the financial reporting
framework that was applied in their preparation; (ii) a description of
the scope of the audit, which must specify the auditing standards used
to conduct the audit; (iii) an audit opinion stating whether the annual
accounts give a true and fair view of the state of affairs and/or the
profit and loss of the firm, as applicable, and whether the annual
accounts have been prepared in accordance with the relevant financial
reporting framework; and (iv) a reference to any matters emphasized by
the auditor that did not qualify the audit opinion.\267\
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\266\ Companies Act 2006, Section 396.
\267\ Id., Section 495.
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The strategic report is required to include a review of the
development and performance of the PRA-designated UK nonbank SD's
during the financial year and a description of the principal risks and
uncertainties that the firm faces.\268\ The auditors are required to
express an opinion on whether the strategic report
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