Voglio sapere a riguardo di…

Federal Register / Vol. 86, No. 27 / Thursday, February 11, 2021 / Rules and Regulations
khammond on DSKJM1Z7X2PROD with RULES

5. Consideration of Alternatives Commenters were generally supportive of the Proposed Rule and section 4c exemptions and recommended only one viable alternative.73 Specifically, Citadel stated that the Commission should not preemptively grant a trade execution exemption for swaps falling under future clearing exemptions, but rather should consider additional future exemptions from the trade execution requirement on a case-by-case basis. The Commission is finalizing the rule automatically granting such exemptions, and as a consequence will consider the costs and benefits in future rulemakings of both any proposed clearing exemption and the associated exemption from the trade execution requirement. Interested persons will have the opportunity to comment on the appropriateness of both exemptions.
D. Antitrust Considerations CEA section 15b requires the Commission to take into consideration the public interest to be protected by the antitrust laws and endeavor to take the least anticompetitive means of achieving the purposes of the Act, in issuing any order or adopting any Commission rule or regulation including any exemption under section 4c or 4cb, or in requiring or approving any bylaw, rule, or regulation of a contract market or registered futures association established pursuant to section 17 of the Act.74
The Commission believes that the public interest to be protected by the antitrust laws is generally to protect competition. The Commission requested and did not receive comments on whether the Proposed Rule implicates any other specific public interest to be protected by the antitrust laws. The Commission has considered the Final Rule to determine whether it is anticompetitive and has identified no significant anticompetitive effects.
Although the Final Rule exempts certain swaps from the requirement to trade competitively on a SEF or DCM, as noted above, these exemptions are narrowly circumscribed in scope, and the Commission has determined the exemptions to be in the public interest.
The Commission also notes that the inter-affiliate transactions exempted under new 36.1b would not be executed on a competitive, arms-length 73 As
discussed above, commenters did recommend several other potential Commission actions that are outside the scope of this rulemaking and are therefore not addressed in this consideration of costs and benefits.
74 7 U.S.C. 19b.

VerDate Sep<11>2014

15:43 Feb 10, 2021

Jkt 253001

basis even if they were required to occur on a SEF or DCM.
List of Subjects in 17 CFR Part 36
Trade execution requirement.
For the reasons stated in the preamble, the Commodity Futures Trading Commission amends 17 CFR
part 36 as follows:
PART 36TRADE EXECUTION
REQUIREMENT
1. The authority citation for part 36
continues to read as follows:

Authority: 7 U.S.C. 1a, 2, 5, 6, 6c, 7, 7a 2, and 7b3, as amended by Titles VII and VIII of the Dodd-Frank Wall Street Reform and Consumer Protection Act, Pub. L. 111
203, 124 Stat. 1376 2010.

2. In 36.1, add paragraphs b and c to read as follows:

36.1 Exemptions to trade execution requirement.

b Section 2h8 of the Act does not apply to a swap transaction that qualifies for the exception under section 2h7 of the Act or an exception or exemption under part 50 of this chapter, and for which the associated requirements are met.
c Section 2h8 of the Act does not apply to a swap transaction that is executed between counterparties that have eligible affiliate counterparty status pursuant to 50.52a of this chapter even if the eligible affiliate counterparties clear the swap transaction.
Issued in Washington, DC, on December 23, 2020, by the Commission.
Christopher Kirkpatrick, Secretary of the Commission.
Note: The following appendices will not appear in the Code of Federal Regulations.

Appendices to Exemptions From Swap Trade Execution Requirement Commission Voting Summary and Commissioners Statements Appendix 1Commission Voting Summary On this matter, Chairman Tarbert and Commissioners Quintenz, Behnam, Stump, and Berkovitz voted in the affirmative. No Commissioner voted in the negative.

Appendix 2Statement of Concurrence of Commissioner Rostin Behnam More than two years ago, in November 2018, the Commission voted to propose a comprehensive overhaul of the existing framework for swap execution facilities
PO 00000

Frm 00009

Fmt 4700

Sfmt 4700

9001

SEFs.1 Today, the Commission issues two rules finalizing aspects of the SEF Proposal and a withdrawal of the SEF Proposals unadopted provisions. This is the final step in a long road. Last month, the Commission finalized rules emanating from the SEF
Proposal regarding codification of existing no-action letters regarding, among other things, package transactions.2 Todays final rules and withdrawal complete the Commissions consideration of the SEF
Proposal.
Back in November 2018, I expressed concern that finalization of the SEF Proposal would reduce transparency, increase limitations on access to SEFs, and add significant costs for market participants.3 I
also noted that, while the existing SEF
framework could benefit from targeted changes, particularly the codification of existing no-action relief, the SEF framework has in many ways been a success. I pointed out that the Commissions work to promote swaps trading on SEFs has resulted in increased liquidity, while adding pre-trade price transparency and competition.
Nonetheless, I voted to put the SEF Proposal out for public comment, anticipating that the notice and comment process would guide the Commission in identifying a narrower set of changes that would improve the current SEF
framework and better align it with the statutory mandate and the underling policy objectives shaped after the 2008 financial crisis.4 More than two years and many comment letters later, that is exactly what has happened. The Commission has been precise and targeted in its finalization of specific provisions from the SEF Proposal that provide needed clarity to market participants and promote consistency, competitiveness, and appropriate operational flexibility consistent with the core principles.
In addition to expressing substantive concerns about the overbreadth of the SEF
Proposal, I also voiced concerns that we were rushing by having a comparatively short 75day comment period.5 In the end, the comment period was rightly extended, and the Commission has taken the time necessary to carefully evaluate the appropriateness of the SEF Proposal in consideration of its regulatory and oversight responsibilities and the comments received. I think that the consideration of the SEF Proposal is an example of how the process is supposed to work. When we move too quickly toward the finish line and without due consideration of the surrounding environment, we risk making a mistake that will impact our markets and market participants.
Finally, I would like to address the Commissions separate vote to withdraw the 1 Swap Execution Facilities and Trade Execution Requirement, 83 FR 61946 Nov. 30, 2018 the SEF Proposal.
2 Swap Execution Facility Requirements Nov. 18, 2020, https www.cftc.gov/PressRoom/
PressReleases/8313-20.
3 Statement of Concurrence of Commissioner Rostin Behnam Regarding Swap Execution Facilities and Trade Execution Requirement, https www.cftc.gov/PressRoom/
SpeechesTestimony/behnamstatement110518a.
4 Id.
5 Id.

E:FRFM11FER1.SGM

11FER1