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Federal Register / Vol. 86, No. 27 / Thursday, February 11, 2021 / Rules and Regulations
unadopted provisions of the SEF Proposal. In the past, I have expressed concern with such withdrawals by an agency that has historically prided itself on collegiality and working in a bipartisan fashion.6 In the case of todays withdrawal, the Commission has voted on all appropriate aspects of the SEF
Proposal through three rules finalized during the past month. The Commission has voted unanimously on all of these rules, including todays decision to withdraw the remainder from further consideration. While normally a single proposal results in a single final rule, in this instance, multiple final rules have been finalized emanating from the SEF
Proposal. This could lead to confusion regarding the Commissions intentions regarding the many unadopted provisions of the SEF Proposal. Under such circumstances, I think it is appropriate to provide market participants with clarity regarding the SEF
Proposal. Accordingly, I will support todays withdrawal of the SEF Proposal. But rather than viewing it as a withdrawal of the SEF
Proposal, I see it as an affirmation of the success of the existing SEF framework and the careful process to markedly improve the SEF framework in a measured and thoughtful way.

Appendix 3Statement of Commissioner Dan M. Berkovitz I support the Commissions decision to withdraw its 2018 proposal to overhaul the regulation of swap execution facilities SEFs 1 2018 SEF NPRM and proceed instead with targeted adjustments to our SEF
rules Final Rules. The two Final Rules approved today will make minor changes to SEF requirements while retaining the progress we have made in moving standardized swaps onto electronic trading platforms, which has enhanced the stability, transparency, and competitiveness of our swaps markets.2
When the Commission issued the 2018 SEF
NPRM, I proposed that we enhance the existing swaps trading system instead of dismantling it. For example, I urged the Commission to clarify the floor trader exception to the swap dealer registration requirement and abolish the practice of posttrade name give-up for cleared swaps. I am pleased that the Commission already has acted favorably on both of those matters.
Todays rulemaking represents a further positive step in this targeted approach.
Many commenters to the 2018 SEF NPRM
supported this incremental approach, advocating discrete amendments rather than wholesale changes. Today, the Commission is adopting two Final Rules that codify
khammond on DSKJM1Z7X2PROD with RULES

6 Rostin
Behnam, Commissioner, CFTC, Dissenting Statement of Commissioner Rostin Behnam Regarding Electronic Trading Risk Principles June 25, 2020, https www.cftc.gov/
PressRoom/SpeechesTestimony/
behnamstatement062520b.
1 Swap Execution Facilities and Trade Execution Requirement, 83 FR 61946 Nov. 30, 2018.
2 Dissenting Statement of Commissioner Dan M.
Berkovitz Regarding Proposed Rulemaking on Swap Execution Facilities and Trade Execution Requirement Nov, 5, 2018, available at https
www.cftc.gov/PressRoom/SpeechesTestimony/
berkovitzstatement110518a.

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tailored amendments that received general support from commenters. The first rule Swap Execution Facilitiesamends part 37
to address certain operational challenges that SEFs face in complying with current requirements, some of which are currently the subject of no-action relief or other Commission guidance. The second rule Exemptions from Swap Trade Execution Requirementexempts two categories of swaps from the trade execution requirement, both of which are linked to exceptions to or exemptions from the swap clearing requirement.
Swap Execution Facilities: Audit Trail Data, Financial Resources and Reporting, and Requirements for Chief Compliance Officers Commission regulations require a SEF to capture and retain all audit trail data necessary to detect, investigate, and prevent customer and market abuses, which currently includes identification of each account to which fills are ultimately allocated.3
Following the adoption of these regulations, SEFs represented that they are unable to capture post-execution allocation data because the allocations occur away from the SEF, prompting CFTC staff to issue no-action relief. Other parties, including DCOs and account managers, must capture and retain post-execution allocation information and produce it to the CFTC upon request, and SEFs are required to establish rules that allow them obtain this allocation information from market participants as necessary to fulfill their self-regulatory responsibilities.
Given that staff is not aware of any regulatory gaps that have resulted from SEFs reliance on the no-action letter, codifying this alternative compliance framework is appropriate.
This Swap Execution Facility final rule also will amend part 37 to tie a SEFs financial resource requirements more closely to the cost of its operations, whether in complying with core principles and Commission regulations or winding down its operations. Based on its experience implementing the SEF regulatory regime, the Commission believes that these amended resource requirementssome of which simply reflect current practicewill be sufficient to ensure that a SEF is financially stable while avoiding the imposition of unnecessary costs. Additional amendments to part 37, including requirements that a SEF
must prepare its financial statements in accordance with U.S. GAAP standards, identify costs that it has excluded in determining its projected operated costs, and notify the Commission within 48 hours if it is unable to comply with its financial resource requirements, will further enhance the Commissions ability to exercise it oversight responsibilities.
Finally, this rule makes limited changes to the Chief Compliance Officer CCO
requirements. As a general matter, I agree that the Commission should clarify certain CCO duties and streamline CCO reporting requirements where information is duplicative or not useful to the Commission.
Although the CCO requirements diverge 3 17

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somewhat from those for futures commission merchants and swap dealers, the role of SEFs is different and therefore, standardization is not always necessary or appropriate. I expect that the staff will continue to monitor the effects of all of the changes adopted today and inform the Commission if it believes further changes to our rules are needed.
Exemptions From Swap Trade Execution Requirement Commodity Exchange Act CEA section 2h8 specifies that a swap that is excepted from the clearing requirement pursuant to CEA section 2h7 is not subject to the requirement to trade the swap on a SEF.
Accordingly, swaps that fall into the statutory swap clearing exceptions e.g., commercial end-users and small banks are also excepted from the trading mandate.
However, the Commission has also exempted from mandatory clearing swaps entered into by certain entities e.g., cooperatives, central banks, and swaps between affiliates using different exemptive authorities from section 2h7.
The Exemptions from Swap Trade Execution Requirement final rule affirms the link between the clearing mandate and the trading mandate for swaps that are exempted from the clearing mandate under authorities other than CEA section 2h7. The additional clearing exemptions are typically provided by the Commission to limited types of market participants, such as cooperatives or central banks that use swaps for commercial hedging or have financial structures or purposes that greatly reduce the need for mandatory clearing and SEF trading.
In addition, limited data provided in the release indicates that, at least up to this point in time, these exempted swaps represent a small percentage of the notional amount of swaps traded.
This final rule also exempts inter-affiliate swaps from the trade execution requirement.
These swaps are exempted from the clearing requirement primarily because the risks on both sides of the swap are, at least in some respects, held within the same corporate enterprise. As described in the final rule release, these swaps may not be traded at arms-length and serve primarily to move risk from one affiliate to another within the same enterprise. Neither market transparency nor price discovery would be enhanced by including these transactions within the trade execution mandate. For these reasons, I am approving the Exemptions from Swap Trade Execution Requirement final rule as a sensible exemption consistent with the relevant sections of the CEA.
Conclusion These two Final Rules provide targeted changes to the SEF regulations based on experience from several years of implementing them. These limited changes, together with the withdrawal of the remainder of the 2018 SEF NPRM, effectively leave in place the basic framework of the SEF
rules as originally adopted by the Commission. This framework has enhanced market transparency, improved competition, lowered transaction costs, and resulted in better swap prices for end users. While it
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