[Federal Register: April 6, 2004 (Volume 69, Number 66)]
[Proposed Rules]
[Page 17998-18001]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr06ap04-44]
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COMMODITY FUTURES TRADING COMMISSION
17 CFR Part 30
RIN 3038-AC06
Foreign Futures and Foreign Options Transactions
AGENCY: Commodity Futures Trading Commission.
ACTION: Proposed rule.
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SUMMARY: The Commodity Futures Trading Commission (``Commission'' or
``CFTC'') is proposing to amend Part 30 of the Commission's regulations
to clarify when foreign futures and options brokers who are members of
a foreign board of trade must register or obtain an exemption from
registration. The Commission proposes to modify Rule 30.4(a) by
clarifying that foreign futures and options brokers, including those
with U.S. bank branches, are not required to register as futures
commission merchants (FCMs) pursuant to Rule 30.4, or seek exemption
from registration under Rule 30.10, if they fall generally into the
following categories: Those that carry customer omnibus accounts for
U.S. FCMs; those that carry U.S. affiliate accounts that are
proprietary to the foreign futures and options broker; and those that
carry U.S. accounts that are proprietary to a U.S. FCM. In addition, a
foreign futures and options broker that has U.S. bank branches will be
eligible for a Rule 30.10 comparability exemption or exemption from
registration under Rule 30.4 based upon compliance with conditions
specified in proposed Rule 30.10(b)(1) through (6).
DATES: Comments must be received by June 7, 2004.
ADDRESSES: You may submit comments, identified by RIN 3038-AC06, by any
of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
E-mail: secretary@cftc.gov. Include ``Commission
Rules 30.1, 30.4 and 30.10--Registration and Exemption'' in the subject
line of the message.
Fax: (202) 418-5521.
Mail: Send to Jean A. Webb, Secretary of the
Commission, 1155 21st Street, NW., Washington DC 20581.
Courier: See above.
Instructions: All comments received will be posted without change
to http://www.cftc.gov, including any personal information provided.
FOR FURTHER INFORMATION CONTACT: Lawrence B. Patent, Deputy Director,
or Susan A. Elliott, Special Counsel, Compliance and Registration,
Division of Clearing and Intermediary Oversight, Commodity Futures
Trading Commission. Three Lafayette Centre, 1155 21st Street, NW.,
Washington, DC 20581. Telephone: (202) 418-5439 or (202) 418-5464, or
electronic mail: lpatent@cftc.gov or selliott@cftc.gov.
SUPPLEMENTARY INFORMATION:
I. Background
This is a reproposal of rules first proposed on August 26, 1999,
\1\ with two adjustments.\2\ The 1999 proposals would have amended Part
30 of the Commission's rules to clarify when foreign futures and
options brokers that are members of a foreign board of trade or
affiliates of U.S. FCMs must register under the Act or obtain an
exemption from registration under the Act. The comment period ended on
October 25, 1999 without any comments received. Soon thereafter, a no-
action request was submitted that touched upon some of the issues
addressed by the proposal, to which the staff responded. The staff's
no-action letter permitted the New York branch of a French bank to
register in the U.S. as an Introducing Broker, to be guaranteed by a
registered FCM that is a subsidiary of the same bank, and to introduce
business to the London branch of the same bank. The letter stated that
staff would not recommend enforcement action against the bank or its
New York or London branches solely upon their failure to register as
FCMs under the Act, or against the U.S. FCM or the bank's New York or
London branches for failure of the New York branch to introduce all
customer accounts to the guaranteeing U.S. FCM, as required by Rule
1.57(a)(1).\3\
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\1\ 64 FR 46613 (August 26, 1999).
\2\ The 1999 proposal required an applicant for a Rule 30.10
exemption with a U.S. bank branch to file a specified set of
representations with the National Futures Association (NFA). This
proposal instead lists the representatives as conditions for
compliance, in order to reduce the paperwork necessitated by these
rule amendments. The second change from the 1999 proposal is that
the definitional changes proposed, adding ``foreign futures and
options customer omnibus account'' and ``foreign futures and options
broker'' (``FFOB''), were adopted as Rules 30.1(d) and (e),
respectively, in connection with the adoption of Rule 30.12 (65 FR
47275, 47280, August 2, 2000). Rule 30.12 was proposed in a separate
release issued simultaneously with the proposal of the changes
discussed herein on August 26, 1999 (64 FR 46618).
\3\ The text of the letter is published on the CFTC Web site as
Letter 00-94, ``Rules 30.10 and 30.4a: No-Action Relief in
Connection with Registration as an Introducing Broker,'' and at
[1999-2000 Transfer Binder] Comm. Fut. L. Rep. ]28.279, September
27, 2000.
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The Commission initially postponed reproposal of these rule
amendments in order to permit time to assess the impact of its no-
action letter, which permitted
[[Page 17999]]
the U.S. branch of a foreign bank in a Part 30 jurisdiction to register
as an IB in the U.S., notwithstanding the Rule 30.10 registration
exemption of its parent company.\4\ Reproposal was also deferred due to
the passage of the Commodity Futures Modernization Act (CFMA) in
December of 2000, and the concurrent necessity for substantial
rulemakings to implement the mandate of that legislation.
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\4\ No subsequent requests for no-action by Part 30 participants
have proposed IB registration of a U.S. bank branch as a way of
authorizing referral of business from the U.S. bank branch to
foreign-based branches.
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Notwithstanding these developments, the Commission's Part 30
program continues to operate much as it did when adopted in 1987.\5\
Part 30 governs, generally, the solicitation and sale of foreign
futures \6\ and foreign option \7\ contracts to customers \8\ located
in the U.S. These rules were promulgated pursuant to Sections
2(a)(1)(A), 4(b) and 4c of the Act, which vest the Commission with
exclusive jurisdiction over the offer and sale, in the U.S., of options
and futures contracts traded on or subject to the rules of a board of
trade, exchange or market located outside of the U.S.
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\5\ 52 FR 28980 (August 5, 1987). CFTC rules may be found at 17
CFR Ch. 1 (2003).
\6\ ``Foreign futures'' as defined in Part 30 means ``any
contract for the purchase or sale of any commodity for future
delivery made, or to be made, on or subject to the rules of any
foreign board of trade.'' Commission Rule 30.1(a).
\7\ ``Foreign option'' as defined in Part 30 means ``any
transaction or agreement which is or is held out to be of the
character of, or is commonly known to the trade as, an `option',
`privilege', `indemnity', `bid', `put', `call', `advance guaranty',
or `decline guaranty', made or to be made on or subject to the rules
of any foreign board of trade.'' Commission Rule 30.1(b).
\8\ Pursuant to Commission Rule 30.1(c), ``Foreign futures or
foreign options customer'' means ``any person located in the United
States, its territories or possessions who trades in foreign futures
or foreign options: Provided, That an owner or holder of a
proprietary account as defined in paragraph (y) of [Commission Rule]
1.3 shall not be deemed to be a foreign futures or foreign options
customer within the meaning of Sec. Sec. 30.6 and 30.7 of this
part.''
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When it adopted Part 30, the Commission recognized that many
complexities would need to be addressed by the staff in the years after
adoption of these rules.\9\ Soon after the Commission adopted the
original Part 30 rules, the staff of the Division of Trading and
Markets \10\ published several interpretative letters and no-action
positions regarding the application of the registration requirements of
Part 30 to foreign firms, and their ability to obtain an exemption from
certain of the requirements of Part 30, pursuant to Rule 30.10. Those
letters and positions were described in some detail in the August 1999
Notice of Proposed Rulemaking.\11\ With the proposed amendments to Part
30 discussed below, the Commission will codify some of those
interpretations and positions. Persons who properly relied on
interpretative statements in the past must henceforth comply with the
new rules, if adopted.\12\
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\9\ ``The Commission is mindful that the implementation of a
regulatory scheme such as this is an evolving process, particularly
as the issues are numerous and complex. Accordingly, the Commission
invites affected persons to seek interpretations of the rules, no-
action positions and exemptions, as appropriate. In this regard, the
Commission has determined to retain the general exemptive provision
set forth in rule 30.10, as proposed.'' 52 FR at 28980-28981.
\10\ Under the CFTC staff reorganization effective July 2002,
the Division of Trading and Markets was eliminated and the Part 30
functions were assumed by the new Division of Cleaning and
Intermediary Oversight.
\11\ 64 FR 46613, 46614-46616.
\12\ If the Commission adopts the proposed amendments, prior
staff positions on these subjects will be superceded. Because the
rule amendments contain no substantive changes to prior staff
interpretative statements and no-action letters, no party should be
disadvantaged. The new rules would make these staff positions more
accessible and more widely understood and obviate the need for
individualized relief.
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II. Rule Amendments
Rule 30.4(a) requires any person who solicits or accepts orders
and/or money for foreign futures and options contracts from domestic
foreign futures or foreign options customers \13\ to register as an FCM
under the Act. Rule 30.4(e) requires registered FCMs to maintain an
office in the U.S. that is managed by an individual domiciled in the
U.S. and registered with the Commission as an associated person
(``AP''). Rule 30.10 permits any person to seek exemption from any
provision of Part 30.
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\13\ See n. 8, supra.
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The Commission believes that it can provide clarity to its
registration requirements under Part 30 by specifically addressing, in
Rule 30.4, when registration by an FFOB is not required. Thus, the
Commission proposes amending Rule 30.4(a) to clarify that FFOBs that
carry foreign futures and foreign options customer omnibus accounts
\14\ of U.S. FCMs, but have no direct contact with the customers whose
accounts comprise the omnibus accounts, are not required to register as
FCMs. This is the case even if the FFOB has U.S. bank branches. The
Commission also proposes amending Rule 30.4(a) to clarify that an FFOB
that carries proprietary accounts of a U.S. FCM, or an FFOB that trades
for its own proprietary accounts (including accounts of its U.S.
affiliates and others whose accounts are ``proprietary'' to the FFOB
under CFTC Rule 1.3(y)), need not register as an FCM so long as certain
conditions are met. These FFOBs, however, otherwise remain subject to
provisions of Part 30 that are not dependent upon registration as an
FCM, such as the antifraud provision of Rule 30.9.
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\14\ ``Foreign futures and foreign options customer omnibus
accounts'' are defined at Rule 30.1(d), 17 CFR Sec. 30.1(d) (2003).
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In addition, the Commission proposes amending Rule 30.10 to clarify
that an FFOB with U.S. bank branches may be eligible for confirmation
of Rule 30.10 relief if it complies with the following conditions:
(1) No U.S. bank branch, office or division will engage in the
trading of futures or options on futures within or from the U.S.,
except for its own account\15\;
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\15\ That is, the ``house'' account of the entity. This is the
``narrow'' definition of proprietary, as set forth in Commission
Rule 1.17(b)(3).
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(2) No U.S. bank branch, office or division will refer any foreign
futures or foreign options customer to the FFOB or otherwise be
involved in the FFOB's business in foreign futures and foreign option
transactions;
(3) No U.S. bank branch, office or division will solicit any
foreign futures or foreign options business or purchase or sell foreign
futures or foreign option contracts on behalf of any foreign futures or
foreign option customers or otherwise engage in any activity subject to
regulation under Part 30 or engage in any clerical duties related
thereto. If any U.S. division, office or branch desires to engage in
such activities, it will only do so through an appropriate CFTC
registrant;
(4) The FFOB will maintain outside the U.S. all contract documents,
books and records regarding foreign futures and option transactions;
(5) The FFOB and each of its U.S. bank branches, offices or
divisions agree to provide upon request of the Commission, the NFA or
the U.S. Department of Justice, access to their books and records for
the purpose of ensuring compliance with the undertakings and consents
to make such records available for inspection at a location in the U.S.
within 72 hours after service of the request; \16\ and
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\16\ The Commission has recognized that Japanese and Hong Kong
laws require that original books and records of any firm located
within either country be maintained within the local jurisdiction.
See CFTC Staff Letter 95-83 [1994-1996 Transfer Binder] Comm. Fut.
L. Rep. (CCH) ] 26,559 at 43,490 (September 20, 1995) (no-action
position permitting the Japanese and Hong Kong affiliates of a U.S.
FCM to accept directly foreign futures and options orders from
certain sophisticated U.S. customers); 62 FR 47792 (September 11,
1997) (extending the relief under CFTC Staff Letter 95-83 to the
Japanese and Hong Kong affiliates of all U.S. FCMs). If the proposed
amendments are adopted, that letter will be superceded. For the
purpose of this rulemaking, the Commission will allow foreign
futures and options brokers in Japan and Hong Kong to satisfy the
books and records requirement by: (1) Providing within 72 hours
authenticated copies of its books and records upon request of a
Commission, NFA or U.S. Department of Justice representative; (2)
providing within 72 hours access to original books and records in
the foreign jurisdiction; (3) waiving objection to the admissibility
of the copies as evidence in a Commission, NFA or U.S. Department of
Justice action against the foreign futures and options broker; and
(4) agreeing in the event of a proceeding to provide a witness to
authenticate copies of books and records given to the Commission,
NFA, or the U.S. Department of Justice. The Commission is clarifying
that the books and records from a Japanese or Hong Kong FFOB are
also subject to request by NFA and U.S. Department of Justice
representatives, as is the case for an FFOB in any other
jurisdiction.
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[[Page 18000]]
(6) Although it will continue to engage in normal commercial
activities, no U.S. bank branch, office or division will establish
relationships in the U.S. with the broker's foreign futures and foreign
options customers for the purpose of facilitating or effecting
transactions in foreign futures and foreign option contracts in the
U.S.
The Commission proposes that any FFOB that would not be required to
register under the proposed Rule 30.4(a) because it solely carries a
U.S. customer omnibus account, an account that would be classified as
proprietary to the broker under Commission Rule 1.3(y), or a U.S. FCM's
proprietary account, is also not required to register solely because it
has U.S. bank branches, so long as it complies with the conditions
specified in Rule 30.10(b)(1)-(6), as listed above.
The Commission solicits comment regarding the number of foreign
futures or options brokers' non-bank branches located in the United
States, as well as information concerning their activities.\17\ The
Commission also requests comment on the advisability of expanding the
relief provided by the proposed rule amendments to foreign futures and
options brokers with any type of U.S. branch, not just bank branches.
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\17\ The rationale for providing relief to foreign firms with
bank branches in the U.S. is that those branches are otherwise
regulated by the banking authorities. Although this rationale would
be inapplicable to non-bank branches, there may be other reasons why
exemption from registration under Part 30 would be appropriate.
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II. Related Matters
A. Regulatory Flexibility Act
The Regulatory Flexibility Act (``RFA''), 5 U.S.C. 601-611,
requires that agencies, in proposing rules, consider the impact of
those rules on small businesses. The Commission has previously
established certain definitions of ``small entities'' to be used by the
Commission in evaluating the impact of its rules on such entities in
accordance with the RFA.\18\ The proposed rules discussed herein would
affect foreign members of foreign boards of trade who perform the
functions of an FCM, some of which may be foreign affiliates of U.S.
FCMs. The Commission previously has determined that, based upon the
fiduciary nature of the FCM/customer relationships, as well as the
requirement that FCMs meet minimum financial requirements, FCMs should
be excluded from the definition of small entities. Therefore, the
Chairman, on behalf of the Commission, hereby certifies, pursuant to 5
U.S.C. 605(b), that these proposed regulations will not have a
significant economic impact on a substantial number of small entities.
Nonetheless, the Commission specifically requests comment on the impact
these proposed rules may have on small entities.
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\18\ 47 FR 18618-18621 (April 30, 1982).
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B. Paperwork Reduction Act
When publishing proposed rules, the Paperwork Reduction Act of 1995
\19\ imposes certain requirements on federal agencies (including the
Commission) in connection with their conducting or sponsoring any
collection of information as defined by the Paperwork Reduction Act. In
compliance with the Act, the Commission, through this rule proposal,
solicits comments to: (1) Evaluate whether the proposed collection of
information is necessary for the proper performance of the functions of
the agency, including the validity of the methodology and assumptions
used; (2) evaluate the accuracy of the agency's estimate of the burden
of the proposed collection of information including the validity of the
methodology and assumptions used; (3) enhance the quality, utility, and
clarity of the information to be collected; and (4) minimize the burden
of the collection of the information on those who are to respond,
including through the use of appropriate automated, electronic,
mechanical, or other technological collection techniques or other forms
of information technology, e.g., permitting electronic submission of
responses.
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\19\ Pub. L. 104-13 (May 13, 1995).
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The Commission has submitted this proposed rule and its associated
information collection requirements to the Office of Management and
Budget. The burden associated with this entire collection 3038-0023,
including this proposed rule, is as follows:
Average burden hours per response: .1645.
Number of respondents: 73,610.
Frequency of response: On occasion; annually; semi-annually;
quarterly.
The burden associated with this specific proposed rule, is as
follows:
Average burden hours per response: .05.
Number of Respondents: 110.
Frequency of response: On occasion.
Persons wishing to comment on the estimated paperwork burden
associated with this proposed rule should contact the Desk Officer,
CFTC, Office of Management and Budget, Room 10202, NEOB, Washington, DC
20503, (202) 395-7340. Copies of the information collection submission
to OMB are available from the CFTC Clearance Officer, 1155 21st Street,
NW., Washington DC 20581, (202) 418-5160.
C. Cost-Benefit Analysis
Section 15(a) of the Act requires the Commission to consider the
costs and benefits of its action before issuing a new regulation under
the Act. By its terms, Section 15(a) does not require the Commission to
quantify the costs and benefits of a new regulation or to determine
whether the benefits of the proposed regulation outweigh its costs.
Rather, Section 15(a) simply requires the Commission to ``consider the
costs and benefits'' of its action.
Section 15(a) further specifies that costs and benefits shall be
evaluated in light of five broad areas of market and public concern:
Protection of market participants and the public; efficiency,
competitiveness, and financial integrity of futures markets; price
discovery; sound risk management practices; and other public interest
considerations. Accordingly, the Commission could in its discretion
give greater weight to any one of the five enumerated areas and could
in its discretion determine that, notwithstanding its costs, a
particular rule was necessary or appropriate to protect the public
interest or to effectuate any of the provisions or to accomplish any of
the purposes of the Act. These proposed amendments are intended to
clarify when foreign futures and options brokers who are members of a
foreign board of trade must register or obtain an exemption from
registration. The Commission is considering the costs and benefits of
these rules in light of the specific provisions of section 15(a) of the
Act:
1. Protection of market participants and the public. The amendments
do not change the requirements to qualify for the exemption.
Accordingly, they should have no effect on the Commission's ability to
protect market participants and the public.
2. Efficiency and competition. The amendments are expected to
benefit
[[Page 18001]]
efficiency and competition by enhancing understanding of the
Commission's requirements for exemption.
3. Financial integrity of futures markets and price discovery. The
amendments should have no effect, from the standpoint of imposing costs
or creating benefits, on the financial integrity or price discovery
function of the futures and options markets.
4. Sound risk management practices. The amendments being adopted
herein should have no effect on the risk management practices of the
futures and options industry.
5. Other public interest considerations. The amendments clarify the
Commission's requirements for exemption of foreign futures and options
brokers who are members of a foreign board of trade. Greater clarity
should result in a system that is easier to understand and thereby more
efficient.
After considering these factors, the Commission has determined to
propose the amendments discussed above.
List of Subjects in 17 CFR Part 30
Definitions, Foreign futures, Foreign options, Reporting and
recordkeeping requirements, Registration requirements.
In consideration of the foregoing, and pursuant to the authority
contained in the Commodity Exchange Act and, in particular, sections
2(a)(1), 4(b), 4c and 8 thereof, 7 U.S.C. 2, 6(b), 6c and 12a (1982),
and pursuant to the authority contained in 5 U.S.C. 552 and 552b
(1982), the Commission hereby proposes to amend Chapter I of Title 17
of the Code of Federal Regulations as follows:
PART 30--FOREIGN OPTIONS AND FOREIGN FUTURES TRANSACTIONS
1. The authority citation for Part 30 continues to read as follows:
Authority: 7 U.S.C. 1a, 2, 4, 6, 6c and 12a, unless otherwise
noted.
2. Section 30.4 is proposed to be amended by revising paragraph (a)
to read as follows:
Sec. 30.4 Registration required.
* * * * *
(a) To solicit or accept orders for or involving any foreign
futures contract or foreign options transaction and, in connection
therewith, to accept any money securities or property (or extend credit
in lieu thereof), to margin, guarantee or secure any trades or
contracts that result or may result therefrom, unless such person shall
have registered, under the Act, with the Commission as a futures
commission merchant and such registration shall not have expired nor
been suspended nor revoked; provided that, a foreign futures and
options broker (as defined in Sec. 30.1(e)) is not required to
register as an FCM:
(1) In order to accept orders from or to carry a U.S. futures
commission merchant foreign futures and options customer omnibus
account, as that term is defined in Rule 30.1(d);
(2) In order to accept orders from or to carry a U.S. FCM
proprietary account, as that term is defined in paragraph (y) of Sec.
1.3 of this chapter; or
(3) In order to accept orders from or carry a U.S. affiliate
account which is proprietary to the foreign broker, as ``proprietary
account'' is defined in paragraph (y) of Sec. 1.3 of this chapter.
Such foreign futures and options broker remains subject to all other
applicable provisions of the Act and of the rules, regulations and
orders thereunder. Foreign futures and options brokers that have U.S.
bank branches, offices or divisions engaging in the above-listed
activity are not required to register as an FCM if they comply with the
conditions listed in Sec. 30.10(b)(1) through (6).
* * * * *
3. Section 30.10 is proposed to be amended by designating the
existing text as paragraph (a) and adding paragraph (b) to read as
follows:
Sec. 30.10 Petitions for exemption.
(a) Any person adversely affected by any requirement of this part
may file a petition with the Secretary of the Commission, which
petition must set forth with particularity the reasons why that person
believes that he should be exempt from such requirement. The Commission
may, in its discretion, grant such an exemption if that person
demonstrates to the Commission's satisfaction that the exemption is not
otherwise contrary to the public interest or to the purposes of the
provision from which exemption is sought. The petition will be granted
or denied on the basis of the papers filed. The petition may be granted
subject to such terms and conditions as the Commission may find
appropriate.
(b) Any foreign person that files a petition for an exemption under
this section shall be eligible for such an exemption notwithstanding
its presence in the United States through U.S. bank branches or
divisions if, in conjunction with a petition for confirmation of Rule
30.10 comparability relief under an existing Rule 30.10 Commission
order, it complies with the following conditions:
(1) No U.S. bank branch, office or division will engage in the
trading of futures or options on futures within or from the United
States, except for its own proprietary account;
(2) No U.S. bank branch, office or division will refer any foreign
futures or options customer to the foreign broker or otherwise be
involved in the foreign broker's business in foreign futures and option
transactions;
(3) No U.S. bank branch, office or division will solicit any
foreign futures or options business or purchase or sell foreign futures
and option contracts on behalf of any foreign futures or option
customers or otherwise engage in any activity subject to regulation
under part 30 or engage in any clerical duties related thereto. If any
U.S. division, office or branch desires to engage in such activities,
it will only do so through an appropriate CFTC registrant;
(4) The foreign person will maintain outside the United States all
contract documents, books and records regarding foreign futures and
option transactions;
(5) The foreign person and each of its U.S. bank branches, offices
or divisions agree to provide upon request of the Commission, the
National Futures Association or the U.S. Department of Justice, access
to their books and records for the purpose of ensuring compliance with
the foreign undertakings and consents to make such records available
for inspection at a location in the United States within 72 hours after
service of the request; and
(6) Although it will continue to engage in normal commercial
activities, no U.S. bank branch, office or division of the foreign
person will establish relationships in the United States with the
applicant's foreign futures and options customers for the purpose of
facilitating or effecting transactions in foreign futures and option
contracts in the United States.
Dated: March 30, 2004.
By the Commission.
Jean A. Webb,
Secretary of the Commission.
[FR Doc. 04-7671 Filed 4-5-04; 8:45 am]
BILLING CODE 6351-01-P