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    2020-08482 | CFTC

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    Federal Register, Volume 85 Issue 114 (Friday, June 12, 2020) 
    [Federal Register Volume 85, Number 114 (Friday, June 12, 2020)]
    [Proposed Rules]
    [Pages 36000-36133]
    From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
    [FR Doc No: 2020-08482]

     

    [[Page 35999]]

    Vol. 85

    Friday,

    No. 114

    June 12, 2020

    Part II

     

     

    Commodity Futures Trading Commission

     

     

    ———————————————————————–

     

     

    17 CFR Parts 1, 4, 41, et al.

     

     

    Bankruptcy Regulations; Proposed Rule

    Federal Register / Vol. 85 , No. 114 / Friday, June 12, 2020 /
    Proposed Rules

    [[Page 36000]]

    ———————————————————————–

    COMMODITY FUTURES TRADING COMMISSION

    17 CFR Parts 1, 4, 41, and 190

    RIN 3038-AE67

    Bankruptcy Regulations

    AGENCY: Commodity Futures Trading Commission.

    ACTION: Notice of proposed rulemaking.

    ———————————————————————–

    SUMMARY: The Commodity Futures Trading Commission (the “Commission”)
    is proposing amendments to its regulations governing bankruptcy
    proceedings of commodity brokers. The proposed amendments are meant to
    comprehensively update those regulations to reflect current market
    practices and lessons learned from past commodity broker bankruptcies.

    DATES: Comments must be received on or before July 13, 2020.

    ADDRESSES: You may submit comments, identified by “Part 190 Bankruptcy
    Regulations” and RIN 3038-AE67, by any of the following methods:

         CFTC Comments Portal: https:// comments.cftc.gov. Select
    the “Submit Comments” link for this rulemaking and follow the
    instructions on the Public Comment Form.
         Mail: Send to Christopher Kirkpatrick, Secretary of the
    Commission, Commodity Futures Trading Commission, Three Lafayette
    Centre, 1155 21st Street NW, Washington, DC 20581.
         Hand Delivery/Courier: Follow the same instructions as for
    Mail, above.

        Please submit your comments using only one of these methods. To
    avoid possible delays with mail or in-person deliveries, submissions
    through the CFTC Comments Portal are encouraged.
        All comments must be submitted in English, or if not, accompanied
    by an English translation. Comments will be posted as received to
    https://comments.cftc.gov. You should submit only information that you
    wish to make available publicly. If you wish the Commission to consider
    information that you believe is exempt from disclosure under the
    Freedom of Information Act (FOIA), a petition for confidential
    treatment of the exempt information may be submitted according to the
    procedures established in Sec.  145.9 of the Commission’s
    regulations.1
    —————————————————————————

        1 17 CFR 145.9. Commission regulations referred to in this
    release are found at 17 CFR chapter I (2019), and are accessible on
    the Commission’s website at https://www.cftc.gov/LawRegulation/CommodityExchangeAct/index.htm.
    —————————————————————————

        The Commission reserves the right, but shall have no obligation, to
    review, pre-screen, filter, redact, refuse or remove any or all of your
    submission from https://comments.cftc.gov that it may deem to be
    inappropriate for publication, such as obscene language. All
    submissions that have been redacted or removed that contain comments on
    the merits of the rulemaking will be retained in the public comment
    file and will be considered as required under the Administrative
    Procedure Act and other applicable laws, and may be accessible under
    the FOIA.

    FOR FURTHER INFORMATION CONTACT: Robert B. Wasserman, Chief Counsel and
    Senior Advisor, 202-418-5092, [email protected] or Kirsten Robbins,
    Associate Director, 202-418-5313, [email protected], Division of
    Clearing and Risk; Andree Goldsmith, Special Counsel, 202-418-6624,
    [email protected] or Carmen Moncada-Terry, Special Counsel, 202-418-
    5795, [email protected], Division of Swap Dealer and Intermediary
    Oversight, in each case at the Commodity Futures Trading Commission,
    Three Lafayette Centre, 1155 21st Street NW, Washington, DC 20581.

    SUPPLEMENTARY INFORMATION:

    Table of Contents

    I. Background
        A. The Part 190 Subcommittee Proposal
        B. Background of the NPRM
    II. Proposed Regulations
        A. Subpart A–General Provisions
        1. Regulation Sec.  190.00: Statutory Authority, Organization,
    Core Concepts, Scope, and Construction
        2. Regulation Sec.  190.01: Definitions
        3. Regulation Sec.  190.02: General
        B. Subpart B–Futures Commission Merchant as Debtor
        1. Regulation Sec.  190.03: Notices and Proofs of Claims
        2. Regulation Sec.  190.04: Operation of the Debtor’s Estate–
    Customer Property
        3. Regulation Sec.  190.05: Operation of the Debtor’s Estate–
    General
        4. Regulation Sec.  190.06: Making and Taking Delivery under
    Commodity Contracts
        5. Regulation Sec.  190.07: Transfers
        6. Regulation Sec.  190.08: Calculation of Allowed Net Equity
        7. Regulation Sec.  190.09: Allocation of Property and Allowance
    of Claims
        8. Regulation Sec.  190.10: Provisions Applicable to Futures
    Commission Merchants During Business as Usual
        C. Subpart C–Clearing Organization as Debtor
        1. Regulation Sec.  190.11: Scope and Purpose of Subpart C
        2. Regulation Sec.  190.12: Required Reports and Records
        3. Regulation Sec.  190.13: Prohibition on Avoidance of
    Transfers
        4. Regulation Sec.  190.14: Operation of the Estate of the
    Debtor Subsequent to the Filing Date
        5. Regulation Sec.  190.15: Recovery and Wind-Down Plans;
    Default Rules and Procedures
        6. Regulation Sec.  190.16: Delivery
        7. Regulation Sec.  190.17: Calculation of Net Equity
        8. Regulation Sec.  190.18: Treatment of Property
        9. Regulation Sec.  190.19: Support of Daily Settlement
        D. Appendix A Forms
        E. Appendix B Forms
        F. Technical Corrections to Other Parts
        1. Part 1
        2. Part 4
        3. Part 41
    III. Revisions Proposed by the ABA Committee That Have Not Been
    Proposed by the Commission
    IV. Cost-Benefit Considerations
        A. Introduction
        B. Baseline
        C. Overarching Concepts
        1. Changes to Structure of Industry
        2. Trustee Discretion
        3. Cost Effectiveness and Promptness Versus Precision
        4. Unique Nature of Bankruptcy Events
        5. Administrative Costs Are Costs to the Estate, and Often to
    the Customers
        6. Request for Comment
        D. Subpart A–General Provisions
        1. Regulation Sec.  190.00: Statutory Authority, Organization,
    Core Concepts, Scope, and Construction
        2. Regulation Sec.  190.01: Definitions
        3. Regulation Sec.  190.02: General
        4. Section 15(a) Factors–Subpart A
        E. Subpart B–Futures Commission Merchant as Debtor
        1. Regulation Sec.  190.03: Notices and Proofs of Claims
        2. Regulation Sec.  190.04: Operation of the Debtor’s Estate–
    Customer Property
        3. Regulation Sec.  190.05: Operation of the Debtor’s Estate–
    General
        4. Regulation Sec.  190.06: Making and Taking Delivery Under
    Commodity Contracts
        5. Regulation Sec.  190.07: Transfers
        6. Regulation Sec.  190.08: Calculation of Allowed Net Equity
        7. Regulation Sec.  190.09: Allocation of Property and Allowance
    of Claims
        8. Regulation Sec.  190.10: Provisions Applicable to Futures
    Commission Merchants During Business as Usual
        9. Section 15(a) Factors–Subpart B
        F. Subpart C–Clearing Organization as Debtor
        1. Regulation Sec.  190.11: Scope and Purpose of Subpart C
        2. Regulation Sec.  190.12: Required Reports and Records
        3. Regulation Sec.  190.13: Prohibitions on Avoidance of
    Transfers
        4. Regulation Sec.  190.14: Operation of the Estate of the
    Debtor Subsequent to the Filing Date
        5. Regulation Sec.  190.15: Recovery and Wind-Down Plans;
    Default Rules and Procedures
        6. Regulation Sec.  190.16: Delivery
        7. Regulation Sec.  190.17: Calculation of Net Equity
        8. Regulation Sec.  190.18: Treatment of Property

    [[Page 36001]]

        9. Regulation Sec.  190.19: Support of Daily Settlement
        10. Section 15(a) Factors–Subpart C
        G. Technical Corrections to Parts 1, 4, and 41
        H. Antitrust Considerations
    V. Related Matters
        A. Regulatory Flexibility Act
        B. Paperwork Reduction Act
        1. Reporting Requirements in an FCM Bankruptcy
        2. Recordkeeping Requirements in an FCM Bankruptcy
        3. Third-Party Disclosure Requirements Applicable to a Single
    Respondent in an FCM Bankruptcy
        4. Reporting Requirements in a DCO Bankruptcy
        5. Recordkeeping Requirements in a DCO Bankruptcy
        6. Third-Party Disclosure Requirements Applicable to a Single
    Respondent in a DCO Bankruptcy
        7. Third-Party Disclosure Requirements Applicable to Multiple
    Respondents During Business as Usual

    I. Background

    A. Background of the NPRM

        The basic structure of the Commission’s bankruptcy regulations,
    part 190 of title 17 of the Code of Federal Regulations, was proposed
    in 1981 and finalized in 1983. While there have been a number of
    rulemakings that have amended part 190 in light of specific issues or
    statutory changes, this is the first comprehensive revision of part
    190. The Commission is proposing to revise part 190 comprehensively in
    light of several major changes to the industry over the past 37 years,
    including the exponential growth in the speed of transactions and trade
    processing. In addition, important lessons have been learned over prior
    bankruptcies, including the need for administrative arrangements that
    are specific to the circumstances of the individual bankruptcy and the
    success of an approach, consistent with applicable statutes, that
    prioritizes cost effectiveness and promptness over precision.2
    Finally, derivatives clearing organizations (“DCOs”) have become
    increasingly important to the financial system.
    —————————————————————————

        2 The concept of prioritizing cost effectiveness and
    promptness over precision is discussed in detail in overarching
    concept three in the cost-benefit considerations, section IV.C.3
    below.
    —————————————————————————

        In proposing these rules, the Commission is exercising its broad
    power under the Commodity Exchange Act (“CEA” or “Act”) to make
    regulations with respect to commodity broker debtors. Specifically,
    section 20(a) states that notwithstanding title 11, the Commission may
    provide, with respect to a commodity broker that is a debtor under
    chapter 7 of title 11, by rule or regulation (1) that certain cash,
    securities, other property, or commodity contracts are to be included
    in or excluded from customer property or member property; (2) that
    certain cash, securities, other property, or commodity contracts are to
    be specifically identifiable to a particular customer in a specific
    capacity; (3) the method by which the business of such commodity broker
    is to be conducted or liquidated after the date of the filing of the
    petition under such chapter, including the payment and allocation of
    margin with respect to commodity contracts not specifically
    identifiable to a particular customer pending their orderly
    liquidation; (4) any persons to which customer property and commodity
    contracts may be transferred under section 766 of title 11; and (5) how
    the net equity of a customer is to be determined.3
    —————————————————————————

        3 See CEA section 20(a), 7 U.S.C. 24(a).
    —————————————————————————

        In developing this rulemaking, the Commission benefited from
    outside contributions.
        On September 29, 2017, the Part 190 Subcommittee of the Business
    Law Section of the American Bar Association (“ABA Committee”)
    submitted a model set of part 190 rules (the “ABA Submission”) in
    response to the Commission’s Project KISS (“Request for
    Information”).4
    —————————————————————————

        4 82 FR 23765 (May 3, 2017). The ABA Submission can be found
    at: https://comments.cftc.gov/PublicComments/ViewComment.aspx?id=61331&SearchText; the accompanying cover note
    (“ABA Cover Note”) can be found at: https://comments.cftc.gov/PublicComments/ViewComment.aspx?id=61330&SearchText. The ABA Cover
    Note cautions that “[t]he views expressed in this letter, and the
    proposed Model Part 190 Rules, are presented on behalf of the [ABA]
    Committee. They have not been approved by the House of Delegates or
    Board of Governors of the ABA and, accordingly, should not be
    construed as representing the policy of the ABA. In addition, they
    do not represent the position of the ABA Business Law Section, nor
    do they necessarily reflect the views of all members of the
    Committee.”
    —————————————————————————

        As the ABA Committee noted,

        The [part 190 regulations] have generally served the industry,
    bankruptcy professionals and customers well. That said, the [ABA]
    Committee believes there is a need to update [p]art 190 in a
    comprehensive manner, as the markets–and how they are regulated–
    have changed dramatically in the intervening decades. At the same
    time, it is important to stay true to the sound conceptual elements
    of the existing rules with respect to account class distinctions,
    porting of customer positions, and pro rata distribution of customer
    property by account class, with priority given to public customers.
    The Committee was also spurred to act by the MF Global and Peregrine
    Financial Group bankruptcies, and the lessons they revealed on the
    challenges of liquidating a large [futures commission merchant
    (“FCM”)] that is severely under-segregated.5
    —————————————————————————

        5 ABA Cover Note at 2.

        The ABA Committee started its work in 2015, conducting a review of
    the Commission’s part 190 regulations to identify potential areas for
    improvement, with the plan to draft comprehensive revisions in the form
    of model rules that the Commission could consider for potential agency
    rulemaking. The ABA Committee included participants who represented a
    broad cross-section of interested parties, in particular attorneys who
    work extensively in the areas of derivatives law, bankruptcy law, or
    both, including at law firms, futures commission merchants, clearing
    houses and exchanges, government agencies,6 and industry
    associations. The ABA Committee also included attorneys for the
    trustees in the commodity broker bankruptcy cases of MF Global and
    Peregrine Financial Group, as well as attorneys who were formerly staff
    at the Commission, including one of the drafters of the original
    rules.7 Each of the members devoted significant amounts of time to
    this project.
    —————————————————————————

        6 The Committee members included staff at government agencies
    other than the Commission. Current Commission staff participated in
    a few meetings of the Committee (in the form of “brainstorming
    exercises”) to discuss their understanding of the current
    regulations. Commission staff “expressly conveyed that they did not
    want to direct the Committee’s deliberations, and they were careful
    not to offer comments that could be construed as trying to persuade
    the Committee to any particular viewpoint on any particular issue.
    They were also clear that their comments did not represent the views
    of the Commission, or of anyone other than the person expressing
    them.” ABA Cover Note at 3 n. 5.
        7 See generally id. at 3.
    —————————————————————————

        The resulting ABA Submission represents a consensus across this
    broad range of interests, thoughtfully and comprehensively addressing
    the issues presented in part 190, and assisting the Commission in
    developing a deeper understanding of the practical issues involved in
    commodity broker bankruptcy proceedings. This notice of proposed
    rulemaking (“NPRM”) has benefited significantly from the ABA
    Submission, as well as conversations between Commission staff and
    members of the ABA Committee, both individually and collectively, to
    understand their thinking with respect to various aspects of the ABA
    Submission.

    B. Major Themes in the Proposed Revisions to Part 190

        While the proposed revised part 190 carries forward significant
    portions of existing part 190, there are important changes that are
    proposed. The major

    [[Page 36002]]

    themes in changes to part 190 include the following:
        (1) The Commission is proposing to add Sec.  190.00, which is
    designed to set out the statutory authority, organization, core
    concepts, scope, and rules of construction for part 190. This section
    is intended to set out, subject to notice and comment rulemaking, the
    Commission’s thinking and intent regarding part 190 in order to benefit
    and to enhance the understanding of DCOs, FCMs, their customers,
    trustees,8 and the public at large.
    —————————————————————————

        8 Including bankruptcy and SIPA trustees, as well as the FDIC
    in its role as a receiver.
    —————————————————————————

        (2) Some of the changes would further support the implementation of
    the requirements, established consistent with section 4d of the CEA,
    that shortfalls in segregated property should be made up from the FCM’s
    general assets, while others further the preferences, established in
    title 11 of the United States Code (i.e., the “Bankruptcy Code”),
    section 766(h), that with respect to customer property, public
    customers are favored over non-public customers, and that public
    customers are entitled inter se to a pro rata distribution based on
    their respective claims.
        (3) Other changes would foster the longstanding and continuing
    policy preference for transferring (as opposed to liquidating)
    positions of public customers and those customers’ proportionate share
    of associated collateral.9 Some of the benefits, for both customers
    and the markets as a whole, arising from this policy are addressed in
    the discussion of proposed Sec.  190.00(c)(4) in section II.A.1 below.
    —————————————————————————

        9 This policy preference is manifest in section 764(b) of the
    Bankruptcy Code, 11 U.S.C. 764(b) (protecting from avoidance
    transfers approved by the Commission up to seven days after the
    order for relief); see also current Sec.  190.06(g) (approving a
    wide variety of pre-relief and post-relief transfers).
    —————————————————————————

        (4) The Commission is proposing a new subpart C to part 190,
    governing the bankruptcy of a clearing organization. As explained in
    further detail in connection with proposed Sec.  190.11, the Commission
    is proposing to establish ex ante the approach to be taken in
    addressing such a bankruptcy, in order to foster prompt action in the
    event such a bankruptcy occurs, and in order to establish a clear
    counterfactual (i.e., “what would creditors receive in a liquidation
    in bankruptcy?”) in the event of a resolution of a clearing
    organization pursuant to Title II of the Dodd-Frank Wall Street Reform
    and Consumer Protection Act 10 (hereinafter, “Title II” and “Dodd-
    Frank”).11 The Commission’s approach toward a DCO bankruptcy is
    characterized by three overarching concepts:
    —————————————————————————

        10 Public Law 111-203 (July 21, 2010).
        11 Section 210(d)(2), 12 U.S.C. 5390(d)(2), provides that the
    maximum liability of the FDIC, acting as a receiver for a covered
    financial company in a resolution under Title II, is the amount the
    claimant would have received if the FDIC had not been appointed
    receiver and the covered financial company had instead been
    liquidated under chapter 7 of the Bankruptcy Code. Thus, in
    developing resolution strategies for a DCO while mitigating claims
    against the FDIC as receiver, it is important to understand what
    would happen if the DCO was instead liquidated pursuant to chapter 7
    of the Bankruptcy Code (and this part 190), and such a liquidation
    is the counterfactual to resolution of that DCO under Title II.
    —————————————————————————

        a. First, the trustee should follow, to the extent practicable and
    appropriate, the DCO’s pre-existing default management rules and
    procedures and recovery and wind-down plans that have been submitted to
    the Commission.12 These rules, procedures, and plans will, in most
    cases,13 have been developed pursuant to the Commission’s regulations
    in part 39, and subject to staff oversight. This approach relieves the
    trustee of the burden of developing, in the moment, models to address
    an extraordinarily complex situation. It would also enhance the clarity
    of the counterfactual for purposes of resolution under Title II.
    —————————————————————————

        12 See generally proposed Sec.  190.15.
        13 Only those DCOs that are subject to subpart C of part 39
    (i.e., those that have been designated as systemically important by
    the FSOC or that have elected to be subject to subpart C of part 39)
    are subject to Sec.  39.35 (Default rules and procedures) and Sec. 
    39.39 (Recovery and wind-down).
    —————————————————————————

        b. Second, resources that are intended to flow through to members
    as part of daily settlement (including both daily variation payments
    and default resources) should be devoted to that purpose, rather than
    to the general estate.14
    —————————————————————————

        14 See generally proposed Sec.  190.19.
    —————————————————————————

        c. Third, other provisions would draw, with appropriate
    adaptations, from provisions applicable to FCMs.15
    —————————————————————————

        15 See, e.g., proposed Sec. Sec.  190.16, 190.17(c).
    —————————————————————————

        (5) The Commission is proposing to note the applicability of part
    190 in the context of proceedings under the Securities Investors
    Protection Act (“SIPA”) in the case of FCMs subject to a SIPA
    proceeding,16 and Title II of Dodd-Frank in the case of a commodity
    broker where the Federal Deposit Insurance Corporation (“FDIC”) is
    acting as a receiver.
    —————————————————————————

        16 Those would be FCMs that are also registered as broker-
    dealers with the Securities and Exchange Commission. See generally
    SIPA, 15 U.S.C. 78aaa et seq.
    —————————————————————————

        (6) In light of lessons learned from the MF Global bankruptcy, the
    Commission is proposing changes to the treatment of letters of credit
    as collateral, both during business as usual and during bankruptcy, in
    order to ensure that, consistent with the pro rata distribution
    principle discussed in proposed Sec.  190.00(c)(5) in section II.A.1
    below, customers who post letters of credit as collateral suffer the
    same proportional loss as customers who post other types of collateral.
        (7) The Commission is proposing in a number of areas to grant
    trustees enhanced discretion, based on both practical necessity and
    positive experience.
        a. Recent commodity broker bankruptcies have involved many
    thousands of customers, with as many as hundreds of thousands of
    commodity contracts. Trustees must make decisions as to how to handle
    such customers and contracts in the days–in some cases, the hours–
    after being appointed. Moreover, each commodity broker bankruptcy has
    unique characteristics, and bankruptcy trustees need to adapt
    correspondingly quickly to those unique characteristics.
        i. In order to foster the ability of the trustee to operate
    effectively, some of the changes would permit the trustee enhanced
    discretion generally.
        ii. Others, recognizing the difficulty in treating large numbers of
    customers on a bespoke basis, would permit the trustee to treat them on
    an aggregate basis. These changes represent a move from a model where
    the trustee receives/complies with instructions from individual
    customers to a model–reflecting actual practice in commodity broker
    bankruptcies in recent decades–where the trustee transfers as many
    open commodity contracts as possible.
        b. These grants of discretion are also supported by the
    Commission’s positive experience working in cooperation and
    consultation with bankruptcy and SIPA trustees.
        c. On a related note, and as discussed further as the third
    overarching concept in the section below on cost-benefit
    considerations,17 both the current and proposed versions of part 190
    favor cost effectiveness and promptness over precision in certain
    respects, particularly with respect to the concept of pro rata
    treatment. Following the policy choice made by Congress in section
    766(h) of the Bankruptcy Code, the Commission is proposing that it is
    more important to be cost effective and prompt in the distribution of
    customer property (i.e., in terms of being able to treat customers as
    part of a class) than it is to value each customer’s entitlements on an
    individual basis. Doing so fosters transfer rather than liquidation of
    customer positions, and

    [[Page 36003]]

    return of most funds to customers in time periods of days or weeks
    rather than months or years. Similarly, calculations of each customer’s
    funded balance are directed in proposed Sec.  190.05 to be “as
    accurate as reasonably practicable under the circumstances, including
    the reliability and availability of information.” The quoted language
    would allow the trustee to avoid more precise calculations where such
    precision would not be cost effective or could not reasonably be
    accomplished on a prompt basis (for example, in a situation where price
    information for particular assets or contracts at particular times was
    not readily available). The Commission believes that this approach
    would lead to (1) in general, a faster administration of the
    proceeding, (2) customers receiving their share of the debtor’s
    customer property more quickly, and (3) a decrease in administrative
    costs (and thus, in case of a shortfall in customer property, a greater
    return to customers).
    —————————————————————————

        17 See the overarching concept discussed in section IV.C.3
    below.
    —————————————————————————

        (8) Many of the changes are intended to update part 190 in light of
    changes to the regulatory framework over the past three decades,
    including cross-references to other Commission regulations. Some of
    these codify actual practice in prior bankruptcies, such as a
    requirement that an FCM notify the Commission of its imminent intention
    to file for voluntary bankruptcy. In another case, the Commission is
    addressing for the first time the interaction between part 190 and
    recent revisions to the Commission’s customer protection rules.18
    —————————————————————————

        18 78 FR 68506 (Nov. 14, 2013). This refers to proposed new
    Sec.  190.05(f) in section II.B.3 below.
    —————————————————————————

        (9) Other changes follow from changes to the technological
    ecosystem, in particular changes from paper-based to electronic-based
    means of communication, (for example, the use of communication to
    customers’ electronic addresses rather than by paper mail, as well as
    the use of websites as a means for the trustee to communicate with
    customers on a regular basis). The proposal would also recognize the
    change from paper-based to electronic recording of “documents of
    title.” Many of these changes also recognize the actual practice in
    prior bankruptcies.
        (10) As discussed further below, many of the changes are intended
    to clarify language in existing regulations, without any intent to
    change substantive results. While some of these changes will, as
    discussed below, address ambiguities that have complicated past
    bankruptcies, this comprehensive revision of part 190 has also provided
    opportunities to clarify language in order to avoid future ambiguities,
    and to add provisions to address circumstances that have not yet
    arisen, in order to accomplish better and more reliably the goals of
    promptly and cost-effectively resolving commodity broker bankruptcies
    while mitigating systemic risk and protecting the commodity broker’s
    customers.
        The Commission seeks comment on these major themes. Do commenters
    agree or disagree with these themes and the analysis presented? Do
    commenters view proposed revised part 190 as appropriately implementing
    these major themes, or are some of the proposed changes inconsistent
    with (or does the proposal in some areas insufficiently address) these
    themes? General comments concerning these major themes are welcome,
    however, adding more specific suggestions for changes to the proposed
    regulations would be most helpful.

    II. Proposed Regulations

    A. Subpart A–General Provisions 19
    —————————————————————————

        19 The Commission is proposing technical corrections and
    updates to parts 1, 4 and 41, which are discussed in II.F. below.
    —————————————————————————

    1. Regulation Sec.  190.00: Statutory Authority, Organization, Core
    Concepts, Scope, and Construction
        The Commission is proposing a new Sec.  190.00, which would contain
    general provisions applicable to all of part 190. Proposed Sec.  190.00
    is intended to assist trustees, bankruptcy courts, customers, clearing
    members, clearing organizations, and other interested parties in
    understanding the Commission’s rationale for, and intent in
    promulgating, the specific provisions of this proposed part. Moreover,
    this regulation may be particularly useful in a time of crisis for
    those individuals who may not have extensive experience with the CEA or
    Commission regulations. This provision generally would state facts and
    concepts that exist in the Commission’s bankruptcy regulations.20 To
    the extent there are changes reflected in this proposed Sec.  190.00,
    these changes will be identified and the reasoning for these changes
    will be further detailed in the relevant section below.
    —————————————————————————

        20 See ABA Cover Note at 6:
        The Committee recommends adding a rule to Subpart A that
    provides context and sets forth the general framework for the Part
    190 Rules to assist a trustee or bankruptcy court in understanding
    the reasons for the specific requirements set forth in the other
    rules. If the individual appointed as the trustee, or the bankruptcy
    court, does not have extensive experience with the CEA or CFTC
    rules, in particular with requirements relating to clearing and
    customer funds segregation, the Part 190 Rules may well prove
    difficult to comprehend, particularly in the critical early days
    when the trustee is expected to act in circumstances that are likely
    chaotic and stressful. This context and description of the general
    framework will also be important to customers and other stakeholders
    that may not have experience with a subchapter IV proceeding.
        Thus, the Committee has proposed Rule 190.00, which explains:
         The Commission’s statutory authority to adopt the Part
    190 Rules.
         The organization of the rules into the three subparts
    described above.
         The core principles reflected in the rules.
         The scope of the rules in terms of proceedings, account
    classes, customer property and commodity contracts.
        Although Rule 190.00 adds to the length of the rules, on
    balance, we believe it provides useful explanation that will benefit
    trustees, bankruptcy judges, customers and other stakeholders
    applying the rules in practice.
    —————————————————————————

        Proposed Sec.  190.00(a) would set forth the Commission’s statutory
    authority to adopt the proposed part 190 regulations under section
    8a(5) of the CEA, which empowers the Commission to “make and
    promulgate such rules and regulations as are necessary to effectuate
    any of the provisions or to accomplish any of the purposes of” the
    CEA, and section 20 of the CEA, which provides that the Commission may,
    notwithstanding the Bankruptcy Code, adopt certain rules or regulations
    governing a proceeding involving a commodity broker that is a debtor
    under subchapter IV of chapter 7 of the Bankruptcy Code.
        Proposed Sec.  190.00(b) would explain that the proposed part 190
    regulations are organized into three subparts. Subpart A would contain
    general provisions applicable in all cases. Subpart B would contain
    provisions that apply when the debtor is a FCM, the definition of which
    includes acting as a foreign FCM.21 Subpart C would contain
    provisions that apply when the debtor is a DCO as defined by the CEA.
    Proposed Sec.  190.00(c) would present the core concepts 22 of
    proposed part 190. These core concepts are central to understanding how
    a commodity broker bankruptcy works. These include those related to
    commodity brokers and commodity contracts; account classes; public
    customers and non-public customers, Commission segregation

    [[Page 36004]]

    requirements, and member property 23; porting of public customer
    commodity contract positions; pro rata distribution; and deliveries.
    More specifically, this paragraph would explain the following concepts:
    —————————————————————————

        21 See CEA section 1a(28), 7 U.S.C. 1a(28). The definition of
    foreign FCM involves soliciting or accepting orders for the purchase
    or sale of a commodity for future delivery executed on a foreign
    board of trade, or by accepting property or extending credit to
    margin, guarantee or secure any trade or contract that results from
    such a solicitation or acceptance. See section 761(12) of the
    Bankruptcy Code, 11 U.S.C. 761(12).
        22 The Commission is proposing to use the term “core
    concepts” to avoid confusion with the core principles applicable to
    registered entities. Cf. CEA section 5b(c)(2), 7 U.S.C. 7a-1(c)(2).
        23 “Member property” would be defined in proposed Sec. 
    190.01 and would be used to identify cash, securities, or property
    available to pay the net equity claims of clearing members based on
    their house account at the clearing organization. Cf. 11 U.S.C.
    761(16).
    —————————————————————————

         Proposed Sec.  190.00(c)(1) would explain that subchapter
    IV of chapter 7 of the Bankruptcy Code applies to a debtor that is a
    “commodity broker,” the definition of which requires a “customer.”
    24 Proposed Sec.  190.00(c)(1) would further state that the rules in
    proposed part 190 apply to commodity brokers that are FCMs as defined
    by the Act, or DCOs as defined by the Act.
    —————————————————————————

        24 See 11 U.S.C. 101(6) (definition of “commodity broker”),
    761(9) (definition of “customer” referred to in 101(6)).
    —————————————————————————

         Proposed Sec.  190.00(c)(2) would explain that the CEA and
    Commission regulations provide separate treatment and protections for
    different types of cleared commodity contracts or account classes. The
    four account classes would include the (domestic) futures account class
    (including options on futures),25 the foreign futures account class
    (including options on foreign futures),26 the cleared swaps account
    class for swaps cleared by a registered DCO (including cleared options
    other than options on futures or foreign futures),27 and the delivery
    account class for property held in an account designated as a delivery
    account. Delivery accounts would be used for effecting delivery under
    commodity contracts that provide for settlement via delivery of the
    underlying when a commodity contract would be held to expiration or, in
    the case of an option on a commodity, would be exercised.28
    —————————————————————————

        25 This corresponds to segregation pursuant to section 4d(a)
    of the CEA, 7 U.S.C. 6d(a).
        26 This corresponds to segregation pursuant to section 30.7
    (enacted pursuant to section 4(b)(2)(A) of the CEA, 7 U.S.C.
    6(b)(2)(A).
        27 This corresponds to segregation pursuant to section 4d(f)
    of the CEA, 7 U.S.C. 6d(f).
        28 Delivery accounts are discussed further below in, e.g.,
    Sec. Sec.  190.00(c)(6), 190.01 (definition of delivery account,
    cash delivery property, physical delivery property) and 190.06.
    —————————————————————————

         Proposed Sec.  190.00(c)(3)(i) would explain that in a
    bankruptcy, public customers are generally entitled to a priority
    distribution of cash, securities, or other customer property over
    “non-public customers,” 29 and both are given a priority over all
    other claimants (except for claims relating to the administration of
    customer property) pursuant to section 766(h) of the Bankruptcy
    Code.30 That provision of the Code states explicitly that the trustee
    shall distribute customer property ratably to customers in priority to
    all other claims, except claims that are attributable to the
    administration of customer property. Notwithstanding any other
    provision of this subsection, a customer net equity claim based on a
    proprietary account may not be paid either in whole or in part,
    directly or indirectly, out of customer property unless all other
    customer net equity claims have been paid in full.
    —————————————————————————

        29 Non-public customers are customers who bear certain
    proprietary or other “insider” relationships to an FCM. This term
    would be more precisely defined in Sec.  190.01.
        30 Thus, as discussed further below, all customer property
    will be allocated to public customers so long as the funded balance
    in any account class for public customers is less than one hundred
    percent of public customer net equity claims. Once all account
    classes for public customers are fully funded (i.e., at one hundred
    percent of net equity claims), any excess would be allocated to non-
    public customers’ net equity claims until all of those are fully
    funded.
    —————————————————————————

        As noted in proposed Sec.  190.00(c)(3)(i)(A), the cash,
    securities, or other property of public customers are subject to
    special segregation requirements under the CEA 31 and Commission
    regulations 32 for each class of account except delivery accounts.
    Although the transactions and property of non-public customers are not
    subject to segregation requirements, such transactions and property are
    deemed part of customer property. In the distribution of customer
    property, customer net equity claims of public customers are
    prioritized over those of non-public customers.
    —————————————————————————

        31 See, e.g., section 4d of the CEA, 7 U.S.C. 6d.
        32 See, e.g., Sec. Sec.  1.20-1.29, part 22, Sec.  30.7.
    —————————————————————————

        As noted in proposed Sec.  190.00(c)(3)(i)(B), the property in
    delivery accounts nonetheless constitutes “customer property,” and
    thus claims of public customers enjoy the same priority over claims of
    non-public customers in the distribution of delivery account property.
         Proposed Sec.  190.00(c)(3)(ii) would address the division
    of customer property and member property in proceedings in which the
    debtor is a clearing organization. The classification of customers as
    non-public customers in contrast to public customers also would be
    relevant, in that each member of the clearing organization would have
    separate claims against the clearing organization with respect to (A)
    transactions cleared for its own account or for any of its non-public
    customers and (B) transactions cleared on behalf of the public
    customers of the member. In such a proceeding, customer property would
    consist of member property, which could be distributed to pay member
    claims based on members’ house accounts, and customer property other
    than member property, which would be reserved for payment of claims for
    the benefit of members’ public customers.
         Proposed Sec.  190.00(c)(3)(iii) would address
    preferential assignment of property among customer classes and account
    classes in clearing organization bankruptcies: (1) Certain customer
    property, as specified in Sec.  190.18(c), would be preferentially
    assigned to “customer property other than member property” instead of
    “member property” to the extent that there is a shortfall in funded
    balances for members’ public customer claims. Moreover, to the extent
    that there are excess funded balances for members’ claims in any
    customer class/account class combination, that excess also would be
    assigned preferentially to “customer property other than member
    property” for other account classes to the extent of any shortfall in
    funded balances for members’ public customer claims in such account
    classes; (2) Where property would be assigned to a particular customer
    class with more than one account class, it would be assigned on a least
    funded to most funded basis among the account classes.
         Proposed Sec.  190.00(c)(4) would explain that, in a
    proceeding in which the debtor is an FCM, part 190 details the policy
    preference for transferring to another FCM, (commonly known as
    “porting”) open commodity contract positions of the debtor’s
    customers along with all or a portion of such customers’ account
    equity. Porting mitigates risks to both the customers of the debtor FCM
    and to the markets. Specifically, porting (rather than the alternative,
    liquidation) of customer positions protects customers’ hedges from
    changes in value between the time they are liquidated and the time, if
    any, that the customer may be able to re-establish them (and thus
    mitigates the market risk that some customers use the futures markets
    to counteract), and similarly protects customers’ directional positions
    . Moreover, not all customers may be able to re-establish positions
    with the same speed–in particular, smaller customers may be subject to
    longer delays in re-establishing their positions. In addition,
    liquidation of an FCM’s book of positions can increase volatility in
    the markets, to the detriment of all market participants (and also
    contribute to making it more expensive for customers to re-establish
    their hedges and other positions).
         Proposed Sec.  190.00(c)(5) would address pro rata
    distribution. It would explain that, if the aggregate value of

    [[Page 36005]]

    customer property in a particular account class is less than the amount
    needed to satisfy the net equity claims of public customers in that
    account class (i.e., there is a “shortfall”), customer property in
    that account class would be distributed pro rata to those public
    customers. The pro rata distribution principle carries forth the
    statutory direction in section 766(h) of the Bankruptcy Code. It would
    ensure that all public customers within an account class will suffer
    the same proportional loss, including those public customers that post
    as collateral letters of credit or specifically identifiable
    property.33
    —————————————————————————

        33 In prior bankruptcies, some customers posting letters of
    credit or specifically identifiable property as collateral sought to
    escape pro rata treatment for these categories of collateral,
    contrary to the Commission’s intent. See discussion of Sec. 
    190.04(d)(3) in section II.B. below.
    —————————————————————————

        Moreover, any customer property that would not be attributable to
    any particular account class or which is in excess of public customer
    net equity claims for the account class to which it is attributed,
    would be distributed to public customers in respect of net equity
    claims in other account classes where there is a shortfall. Thus, as
    noted in Sec.  190.00(c)(3), all public customer net equity claims
    would receive priority over non-public customer claims.
         Proposed Sec.  190.00(c)(6) would address deliveries. It
    would explain that the delivery provisions of part 190 apply to any
    commodity that is subject to delivery under a commodity contract,
    including agricultural commodities, other non-financial commodities
    (such as metals or energy) and commodities that are financial in nature
    (including virtual currencies). In the ordinary course of business,
    commodity contracts with delivery obligations are offset before
    reaching the delivery stage (i.e., prior to triggering bilateral
    delivery obligations). Nonetheless, when delivery obligations do arise,
    a delivery default could have a disruptive effect on the cash market
    for the commodity and could adversely impact the parties to the
    transaction.34
    —————————————————————————

        34 See ABA Cover Note at 12 (“It is important to address
    deliveries to avoid disruption to the cash market for the commodity
    or adverse consequences to parties that may be relying on delivery
    taking place in connection with their business operations.”).
    —————————————————————————

        In a proceeding in which the debtor is an FCM, the delivery
    provisions in proposed part 190 would reflect the policy preferences
    (A) to liquidate commodity contracts that settle via delivery before
    they move into a delivery position and (B) when contracts do move into
    a delivery position, to allow the delivery to occur, where practicable,
    outside the administration of the debtor’s estate (i.e., directly
    between the debtor’s customer and the delivery counterparty assigned by
    the clearing organization).
        Proposed Sec.  190.00(d)(1)(i) would acknowledge that section
    101(6) of the Bankruptcy Code recognizes “commodity options dealers”
    and “leverage transaction merchants” as defined in sections 761(6)
    and (13) of the Bankruptcy Code, as separate categories of commodity
    brokers. However, since there are no commodity options dealers or
    leverage transaction merchants currently registered,35 in proposed
    Sec.  190.00(d)(1), the Commission would declare its intent to adopt
    regulations with respect to commodity options dealers and leverage
    transaction merchants, respectively, at such time as an entity
    registers as such.
    —————————————————————————

        35 See ABA Cover Note at 5 (“To our knowledge, no person is
    currently registered or operating as a commodity option dealer or
    leverage transaction merchant. . . . Thus, we recommend uncluttering
    the rules by limiting their scope to subchapter IV proceedings of
    commodity brokers that are FCMs or DCOs, with respect to commodity
    contracts that are cleared.”).
    —————————————————————————

        Proposed Sec.  190.00(d)(1)(ii) would provide that, pursuant to the
    Securities Investor Protection Act (“SIPA”),36 the trustee in a
    SIPA proceeding where the debtor is also a commodity broker has the
    same duties as a trustee in a proceeding under subchapter IV of chapter
    7 of the Bankruptcy Code, to the extent consistent with SIPA or as
    ordered by the court.37 This part would implement subchapter IV of
    chapter 7 by establishing the trustee’s duties thereunder, consistent
    with the broad authority granted to the Commission pursuant to section
    20 of the CEA. Therefore, this part also would apply to a proceeding
    commenced under SIPA with respect to a debtor that is registered as a
    broker or dealer under section 15 of the Securities Exchange Act of
    1934 38 when the debtor also is an FCM.
    —————————————————————————

        36 15 U.S.C. 78aaa, et seq.
        37 See SIPA section 7(b), 15 U.S.C. 78fff-1(b) (To the extent
    consistent with the provisions of SIPA or as otherwise ordered by
    the court, a trustee shall be subject to the same duties as a
    trustee in a case under chapter 7 of title 11, including, if the
    debtor is a commodity broker, as defined under section 101 of such
    title, the duties specified in subchapter IV of such chapter 7).
        38 15 U.S.C. 78o.
    —————————————————————————

        Moreover, in the context of a resolution proceeding under Title II
    of Dodd-Frank, section 210(m)(1)(B) 39 provides that the FDIC (in its
    role as resolution authority) must apply the provisions of subchapter
    IV of chapter 7 of the Bankruptcy Code in respect of the distribution
    of customer property and member property of a resolution entity 40
    that is a commodity broker as if the resolution entity were a debtor
    for purposes of subchapter IV. Proposed Sec.  190.00(d)(1)(iii) would
    explain that this part shall serve as guidance with respect to
    distribution of property in a proceeding in which the FDIC acts as a
    receiver for an FCM or DCO pursuant to Title II of Dodd-Frank.41
    —————————————————————————

        39 12 U.S.C. 5390(m)(1)(B).
        40 That is, the entity being resolved under Title II. Section
    210(m)(1)(b) refers to “any covered financial company or bridge
    financial company.”
        41 12 U.S.C. 5390(m)(1)(B) provides that the FDIC must apply
    the provisions of subchapter IV of chapter 7 of the Code with
    respect to the distribution of customer property and member property
    in connection with the liquidation of a commodity broker that is a
    “covered financial company” or “bridge financial company” (terms
    defined in 12 U.S.C. 5381(a)).
    —————————————————————————

        Proposed Sec.  190.00(d)(2)(i) would clarify that a trustee may not
    recognize any account classes not explicitly provided for in proposed
    part 190.
        Proposed Sec.  190.00(d)(2)(ii) would provide that no property that
    would otherwise be included in customer property, as defined in
    proposed Sec.  190.01 of this part, shall be excluded from customer
    property because it is considered to be held in a constructive trust,
    resulting trust, or other trust that is implied in equity.42
    Generally, in a commodity broker bankruptcy, the basis for distributing
    segregated customer property is pro rata treatment and transparency. To
    achieve this goal, the FCM’s segregation records (including account
    statements) and reporting to the Commission and self-regulatory
    organizations (“SROs”) and DCOs must reflect what is actually
    available for customers. This allows FCMs, SROs, DCOs, and the
    Commission to ensure, during business as usual, that (a) customer
    property is being properly protected pursuant to the segregation
    requirements of section 4d of the CEA and the regulations thereunder,
    and (b) customer property is not subject to hidden arrangements that
    cannot be accounted for transparently and reliably. Through this
    regulation, the Commission is making clear that customer property
    cannot be burdened by equitable trusts. Attempting to

    [[Page 36006]]

    account for such equitable trusts in a bankruptcy proceeding under part
    190 would undermine the Commission’s implementation and enforcement of
    the statutory scheme under the CEA.43
    —————————————————————————

        42 This is in contrast to the (ultimately unsuccessful) claims
    of certain retail customers in the Peregrine bankruptcy, who claimed
    that their off-exchange retail foreign currency transactions and
    associated margin collateral were held in a constructive or
    resulting trust by Peregrine. An off-exchange retail foreign
    currency transaction is not defined as “commodity contract” under
    section 761(4) of the Bankruptcy code. Accordingly, counterparties
    that engage in off-exchange retail transactions with an FCM are not
    subject to the protections provided by part 190 with respect to
    their accounts in the event of the FCM’s bankruptcy. See generally
    Secure Leverage Group, Inc. v. Bodenstein, 558 B.R. 226 (N.D. Ill.
    2016) aff’d 866 F.3d 775 (7th Cir. 2017).
        43 The ABA Submission included a more complex approach to this
    subsection:
        Absent extraordinary circumstances and upon application by the
    trustee (such as to address transfers of funds initiated prior to,
    but completed after, the entry of the order for relief), so long as
    there is any shortfall of customer property needed to satisfy
    customer net equity claims in the classes enumerated in Sec.  190.01
    of this part, no person is entitled to a distribution of any
    property in which the debtor holds any interest on the basis that
    the debtor holds such property in a `constructive trust’ for such
    person. The foregoing does not restrict any rights a person may have
    to distribution of property held by the debtor that is not covered
    by an account class on a `custodial’ or express trust basis pursuant
    to statute, governmental rule, regulation or order, or legally
    binding written agreement between the debtor and such person.
        The Commission concludes that the ABA Submission’s approach here
    is overly complicated (both in the level of detail and, in
    particular, with relation to evaluating what constitutes
    “extraordinary circumstances”), and has instead determined to
    propose the more direct approach discussed above.
    —————————————————————————

        Proposed Sec.  190.00(d)(3) would provide that certain
    transactions, contracts or agreements are excluded from the term
    “commodity contract.” The contracts that would be excluded include:
    Options on commodities unless cleared by a DCO (or, in the context of a
    foreign futures clearing member, a foreign clearing organization);
    forwards (defined as such pursuant to the exclusions in sections 1a(27)
    or 1a(47)(B)(ii) of the CEA), unless they are cleared by a DCO (or, in
    the context of a foreign futures clearing member, a foreign clearing
    organization); security futures products when they are carried in a
    securities account; retail foreign currency transactions described in
    sections 2(c)(2)(B) or (C) of the CEA; security-based swaps or other
    securities carried in a securities account 44 (other than security
    futures products carried in an enumerated account class); and retail
    commodity transactions described in section (2)(c)(2)(D) of the CEA
    (other than transactions executed on or subject to the rules of a
    designated contract market (“DCM”) or foreign board of trade
    (“FBOT”) as if they were futures). The agreements and transactions
    that would be so excluded have traditionally not been considered to be
    commodity contracts for purposes of segregation and customer
    protection, while those that are excepted from these exclusions are so
    considered, and thus are covered by part 190.45
    —————————————————————————

        44 Security-based swaps and securities that are carried in a
    securities account are part of this exclusion because they are
    protected under SIPA.
        45 As the ABA Cover Note explains:
        The Committee believes it is important for the rules to cover
    cleared OTC transactions in contracts that may be outside the swap
    definition and futures contract classification, such as foreign
    exchange forwards or foreign exchange swaps excluded by the Treasury
    Department or spot forex transactions, because such transactions are
    already being cleared by DCOs as if they are swaps. It is the
    Committee’s understanding that the DCOs are clearing such OTC
    transactions under the account structure, and subject to the
    customer funds segregation rules, for cleared swaps prescribed in
    the CFTC Part 22 Rules. Thus, we have included such commodity
    contracts in the cleared swaps account class.
        ABA Cover Note at 8 (footnote omitted).
    —————————————————————————

        Positions or transactions that would be covered by part 190
    include:
         As part of the cleared swaps account class (discussed in
    further detail in the definitions section), “swaps” as defined in
    section 1a(47) of the CEA and Sec.  1.3 that are cleared by a DCO,
    including options on commodities cleared by a DCO unless otherwise
    excluded, and non-swap/non-futures contracts that are traded over-the-
    counter on a swap execution facility and cleared by a DCO as if they
    were swaps (cleared swaps account class).46
    —————————————————————————

        46 See the definition of commodity contract in proposed Sec. 
    190.01in conjunction with the definition of swap in proposed Sec. 
    190.01.
    —————————————————————————

         As part of the futures or foreign futures account class
    (discussed in further detail in the definitions section), futures or
    options on futures executed on or subject to the rules of a DCM or
    FBOT, including retail commodity contracts if they were traded on such
    market “as if” they are futures and forward contracts which are
    cleared by a DCO as if they were futures.47
    —————————————————————————

        47 See the definition of commodity contract in proposed Sec. 
    190.01 in conjunction with the definition of swap in proposed Sec. 
    190.01.
    —————————————————————————

        Proposed Sec.  190.00(e) would address the context in which
    proposed part 190 should be interpreted. It states that any references
    to other Federal rules and regulations refer to the most current
    versions of these rules and regulations (i.e., “as the same may be
    amended, superseded or renumbered”). Moreover, where they differ, the
    definitions set forth in proposed Sec.  190.01 shall be used instead of
    the defined terms set forth in section 761 of the Bankruptcy Code. It
    should be noted that the other regulations in proposed part 190 are
    designed to be consistent with subchapter IV of chapter 7 of the
    Bankruptcy Code.
        Proposed Sec.  190.00(e) also addresses account classes in the
    context of portfolio margining and cross margining programs. Where
    commodity contracts (and associated collateral) that would be
    attributable to one account class are, instead, commingled with the
    commodity contracts (and associated collateral) in a second account
    class (the “home field”), then the trustee must treat all such
    commodity contracts and associated collateral as being held in, and
    consistent with the regulations applicable to, an account of the second
    account class. The approach of following the rules of the “home
    field” also pertains to securities positions held in a commodity
    account class (and thus treated in accord with the relevant commodity
    account class) and commodity contract positions (and associated
    collateral) held in the securities account, in which case the rules
    applicable to the securities account will apply, consistent with
    section 16(2)(b)(ii) of SIPA, 15 U.S.C. 78lll(2)(b)(ii).
        The Commission requests comment with respect to all aspects of
    proposed Sec.  190.00. In particular, is a regulation setting forth
    core concepts useful? Are the core concepts that are addressed under or
    over inclusive? Are the definitions and discussions for each core
    concept helpful?
    2. Regulation Sec.  190.01: Definitions
        The Commission would update the definitions for proposed revised
    part 190. The current and proposed definitions are in Sec.  190.01.
    Most of the changes in proposed Sec.  190.01 would be conforming
    changes, such as correcting cross-references and deleting definitions
    of certain terms that are not used in proposed part 190. Other changes
    would tie the definitions in Sec.  190.01 more closely to the
    definitions in Sec.  1.3 and other Commission regulations, to reflect
    changes in Commission regulations. In some cases, the Commission is
    proposing more substantive changes to the definitions, such as amending
    or adding definitions to further clarify and provide additional details
    where the current definitions are silent or unclear, or to reflect
    concepts that are new to proposed part 190. In particular, the
    Commission is proposing to separate the delivery account class into two
    sub-classes, a physical delivery account class and a cash delivery
    account class; the relevant terms are defined below. The proposed
    definitions of commodity contract and physical delivery property would
    codify positions that the Commission has taken in recent commodity
    broker bankruptcies.48
    —————————————————————————

        48 Respectively, In Re Peregrine Financial Group and In Re MF
    Global, Inc.
    —————————————————————————

        The Commission is also proposing to amend the current Sec.  190.01
    to replace the paragraphs currently identified with an alphabetic
    designation for each defined term (e.g., “Sec.  190.01(ll)”) with a
    simple alphabetized list, as is recommended by the Office of the
    Federal Register, and as recently

    [[Page 36007]]

    implemented by the Commission with respect to, e.g., Sec.  1.3.49
    —————————————————————————

        49 See generally 83 FR 7979, 7979 & n.6 (Feb. 23, 2018).
    —————————————————————————

        The Commission is proposing the following definitions in proposed
    Sec.  190.01:
        “Account Class”: The current definition of the term account class
    specifies that it includes certain types of customer accounts, each of
    which is to be recognized as a separate class of account. The types are
    “futures account,” “foreign futures accounts,” “leverage
    accounts,” “delivery accounts,” and “cleared swaps accounts.” The
    proposed definition of the term “account class” would be expanded to
    include definitions of each of these account classes. However, as
    discussed above with respect to proposed Sec.  190.00(d)(1)(i), the
    “commodity options” and “leverage account” account classes are
    proposed to be removed, at least temporarily.
        The definition of “futures account” would cross-reference the
    definition of the same term in Sec.  1.3, while the definition of
    “cleared swaps account” cross-references the definition of “cleared
    swaps customer account” in Sec.  22.1. Each of these definitions
    applies to both FCMs and DCOs. The definition of “foreign futures
    account” cross-references the definition of “30.7 account” in Sec. 
    30.1(g). As that latter definition is limited to FCMs, a corresponding
    reference to such accounts at a clearing organization would be
    included, in the event that a clearing organization clears foreign
    futures transactions for members that are FCMs, where those accounts
    are maintained on behalf of those FCM members’ 30.7 customers (as that
    latter term is defined in Sec.  30.1(f)). This would not apply to the
    case where a foreign clearing organization is clearing foreign futures
    for clearing members that are not subject to the requirements of Sec. 
    30.7.
        Paragraph (1)(iv) of the definition of account class would address
    the delivery account class. The delivery account class is relevant when
    an FCM or DCO establishes delivery accounts through which it accounts
    for the making or taking of physical delivery under commodity contracts
    whose terms require settlement by delivery of a commodity, in either
    case in an account designated as a delivery account on the books and
    records of the entity.
        Paragraph (1)(iv)(A)(1) would define delivery accounts for FCMs,
    and would be based on current Sec.  190.05(a)(2). Paragraph
    (1)(iv)(A)(2) would incorporate the same concepts for clearing
    organizations, and also adds in additional concepts. Specifically, a
    clearing organization may act as a central depository for physical
    delivery property represented by electronic title documents, or
    otherwise in electronic (dematerialized) form.
        As set forth in paragraph (1)(iv)(B), the delivery account class
    would be subdivided into separate physical and cash delivery account
    classes, as provided in proposed Sec.  190.06(b).50 Customer property
    held in a delivery account is not subject to Commission segregation
    requirements. Thus, it may be more challenging and time-consuming to
    identify customer property for the delivery account class.
    —————————————————————————

        50 It should be noted that under the proposed regulations,
    “physical delivery property” refers to a commodity that is held in
    a form that can be delivered, including, e.g., virtual currencies,
    and (in contrast to current Sec.  190.01(ll)(3)), is not limited to
    physical (i.e., tangible) commodities.
    —————————————————————————

        As the ABA Committee noted:

        Based on lessons learned from the MF Global bankruptcy, those
    challenges are likely greater for tracing cash. Physical delivery
    property, in particular when held in the form of electronic
    documents of title as is prevalent today, is more readily
    identifiable and less vulnerable to loss, compared to cash delivery
    property that an FCM may hold in an operating bank account.51
    —————————————————————————

        51 ABA Cover Note at 14. See also In re MF Global Inc., 2012
    WL 1424670 (noting how physical delivery property was traceable).

    (and such cash would thus be commingled with the FCM’s own cash
    intended for operations). Thus, separating (1) cash delivery property
    and customer claims therefor from (2) physical delivery property and
    customer claims therefor, would promote the more efficient and prompt
    distribution of the latter to customers.
        For these reasons, the Commission is proposing that the delivery
    account class be further divided into physical delivery and cash
    delivery account classes, for purposes of pro rata distributions to
    customers for their delivery claims.
        The claims with respect to these subclasses are fixed on the filing
    date. Thus, the physical delivery account class includes, in addition
    to certain physical delivery property, cash delivery property received
    post-filing date in exchange for physical delivery property held on the
    filing date that has been delivered under a commodity contract.
    Conversely, the cash delivery account class includes, in addition to
    certain cash delivery property, physical delivery property that has
    been received post-filing date in exchange for cash delivery property
    held on the filing date.
        Paragraph (2) of the definition of account class would address
    commingling orders and rules. Specifically, there are cases where
    commodity contracts (and associated collateral) that would be
    attributable to one account class are held separately from contracts
    and collateral associated with that first account class, and instead
    are allocated to a different account class and commingled with
    contracts and collateral in such account class. This would take place
    because the contracts in question are risk-offsetting to contracts in
    the latter account class.52 This commingling may be authorized
    pursuant to a Commission regulation or order, or pursuant to a clearing
    organization rule that is approved in accordance with Sec. 
    39.15(b)(2). Paragraph (2) would confirm that the trustee must treat
    the commodity contracts in question (and the associated collateral) as
    being held in an account of the latter account class.
    —————————————————————————

        52 This could involve portfolio margining within a DCO or
    cross-margining between a DCO and another central counterparty,
    which may or may not be a derivatives clearing organization.
    —————————————————————————

        Paragraph (3) of the definition of account class would address
    cases where the commodity broker establishes internal books and records
    in which it records a customer’s commodity contracts and collateral,
    and related activity. It would confirm that the commodity broker is
    considered to maintain such an account for the customer regardless of
    whether it has kept such books and records current or accurate.
        “Act” is proposed to be added to the definitions in proposed
    Sec.  190.01 to refer to the Commodity Exchange Act.
        “Allowed net equity” is proposed to be revised to update cross-
    references and to allow for two definitions of the term (as used in
    subparts B and C of part 190).
        “Bankruptcy code” is proposed to be revised to update cross-
    references.
        “Business day” is proposed to be described further by defining
    what constitutes a Federal holiday. The definition also would clarify
    that the end of a business day is one second before the beginning of
    the next business day.
        “Calendar day” is proposed to be amended to include a reference
    to Washington, DC as the location of the Calendar day.
        “Cash delivery account class” is proposed to be cross-referenced
    to the new definition in “account class.”
        “Cash delivery property” and “physical delivery property” are
    proposed to be added.

    [[Page 36008]]

        The current definition of “delivery account,” Sec.  190.05(a)(2),
    refers to an account that contains only property described in three of
    the nine categories of property in the definition of “specifically
    identifiable property.” Following the suggestion of the ABA
    Committee,53 the Commission is proposing to define directly a
    delivery account class, taking elements of the definition from the
    current definition of “specifically identifiable property,” as
    discussed below with reference to the proposed changes to that
    definition. The proposed regulation will separate delivery property
    into subcategories, with separate definitions of “cash delivery
    property” and “physical delivery property.”
    —————————————————————————

        53 See ABA Cover Note at 10.
    —————————————————————————

        Defining these terms would also be relevant for proposed Sec. 
    190.06, which would address the process for making or taking physical
    delivery under commodity contracts, including deliveries that may occur
    outside a delivery account.
        The proposed definition of cash delivery property would carry
    through the concepts from current Sec.  190.01(ll)(4) and (5) that the
    cash or cash equivalents, or the commodity, must be identified on the
    books and the records of the debtor as having been received, from or
    for the account of a particular customer, on or after three calendar
    days before the relevant (i) first delivery notice date in the case of
    a futures contract or (ii) exercise date in the case of an option.
        The proposed definition of physical delivery property includes,
    under the four specified sets of circumstances discussed below, a
    commodity, whether tangible or intangible, held in a form that can be
    delivered to meet and fulfill delivery obligations under a commodity
    contract that settles via delivery if held to a delivery position.54
    The definition would note that this includes warehouse receipts,
    shipping certificates or other documents of title (including electronic
    title documents) for the commodity, or the commodity itself.
    —————————————————————————

        54 The current definition is found in Sec.  190.01(ll)(3), and
    focuses on documents of title and physical commodities.
    —————————————————————————

        Some of the changes in the definition address changes in delivery
    practices since the 1980s. The reference to electronic title documents
    explicitly would recognize that “title documents for commodities are
    now commonly held in dematerialized, electronic form, in lieu of
    paper.” Moreover, the types of commodities that might be physically
    delivered would extend beyond tangible commodities to those that are
    intangible, including Treasury securities, foreign currencies, or
    virtual currencies.55
    —————————————————————————

        55 See ABA Cover Note at 10, 12-13.
    —————————————————————————

        For purposes of analytical clarity, the definition of physical
    delivery property would be separated into four categories:
        First, commodities or documents of title for commodities that the
    debtor holds for the account of a customer for purposes of making
    delivery of such property and which, as of the filing date or
    thereafter, can be identified as held in a delivery account for the
    benefit of such customer on the books and records of the debtor.56
    —————————————————————————

        56 These first two categories together correspond to current
    Sec.  190.01(ll)(3), with the first category corresponding to
    physical delivery property held for the purpose of making delivery
    and the second category corresponding to physical delivery property
    held as a result of taking delivery. The property that is (or should
    be) within these two categories, as of the filing date, comprises
    the property that will be distributed as part of the physical
    delivery account class.
    —————————————————————————

        Second, commodities or documents of title for commodities that the
    debtor holds for the account of the customer, where the customer
    received or acquired such property by taking delivery under an expired
    or exercised commodity contract, and which, as of the filing date or
    thereafter, can be identified as held in a delivery account for the
    benefit of such customer on the books and records of the debtor.57
    —————————————————————————

        57 The current definition does not prescribe or imply a limit
    to how long such received property can be held in a delivery
    account, because there is no principled basis to draw a bright line
    delineating how long is too long. The proposed definition explicitly
    would codify that position.
    —————————————————————————

        The third category addresses property that (a) is in fact being
    used, or has in fact been used, for the purpose of making or taking
    delivery, but (b) is held in a futures, foreign futures, cleared swaps,
    or (if the commodity is a security) securities account.58 This
    property would be considered physical delivery property solely for the
    purpose of the obligations, pursuant to proposed Sec.  190.06, to make
    or take delivery of physical delivery property. Property in this
    category would be distributed as part of the account class in which it
    is held (futures, foreign futures, or cleared swaps, or, in the case of
    a securities account, as part of a SIPA proceeding).
    —————————————————————————

        58 See ABA Cover Note at 13 (“When the FCM has a role in
    facilitating delivery, deliveries may occur via title transfer in a
    futures account, foreign futures account, cleared swaps account,
    delivery account, or, if the commodity is a security . . . in a
    securities account.”).
    —————————————————————————

        Fourth, where such commodities or documents of title are not held
    by the debtor, but are delivered or received by a customer in
    accordance with proposed Sec.  190.06(a)(2) (either by itself in the
    case of an FCM bankruptcy or in conjunction with proposed Sec. 
    190.16(a) in the case of a clearing organization bankruptcy), they will
    be considered physical delivery property, but, again, solely for
    purposes of obligations to make or take delivery of physical delivery
    property pursuant to proposed Sec.  190.06.59 As this property is
    held outside of the debtor’s estate (and there was no obligation to
    transmit it to the debtor’s customer accounts), it is not subject to
    pro rata distribution.
    —————————————————————————

        59 As noted immediately above, the third and fourth categories
    of physical delivery property are not part of the physical delivery
    account class. They are included because the Commission is
    proposing, consistent with the suggestion in the ABA Submission for
    Sec.  190.06 and the ABA Cover Note “to provide more specificity
    than is found in current [Sec.  ] 190.05 on how to accomplish
    delivery” where “[o]pen positions . . . get caught in delivery
    position where parties incur bilateral contractual obligations.”
    Id. at 13. This more ramified approach to setting out obligations in
    connection with delivery requires a correspondingly broader
    definition of physical delivery property.
    —————————————————————————

        “Cash equivalents” is proposed to be added to define assets that
    might be accepted as a substitute for United States dollar cash.
        “Cleared swaps account” is proposed to be cross-referenced to the
    new definition in “account class.”
        “Clearing organization” is proposed to be revised to update
    cross-references.
        “Commodity broker” is proposed to be updated to reflect the
    current definition of commodity broker in the Bankruptcy Code and the
    relevant cross-references.
        “Commodity contract” is proposed to be amended to incorporate and
    extend in context (through references to current Commission
    regulations) the definition in section 761(4) of the Bankruptcy
    Code.60
    —————————————————————————

        60 It should be noted that, consistent with proposed Sec. 
    190.00(d)(3)(iv) and the decision In re Peregrine Financial Group,
    Inc., 866 F.3d 775, 776 (7th Cir. 2017), adopting by reference
    Secure Leverage Group, Inc. v. Bodenstein, 558 B.R. 226 (N.D. Ill.
    2016), retail foreign exchange contracts do not fit within the
    definition of commodity contracts.
    —————————————————————————

        “Commodity contract account” is proposed to be added to refer to
    accounts of a customer based on commodity contracts in one of the
    account classes, as well as, for purposes of identifying customer
    property for the foreign futures account class, accounts maintained by
    foreign futures intermediaries or foreign clearing organizations
    reflecting foreign futures.
        “Court” is proposed to be clarified to refer to the court having
    jurisdiction over the debtor’s estate, reflecting that such court may
    not be a bankruptcy court (e.g., in the event of a withdrawal of the
    reference.) 61
    —————————————————————————

        61 Cf. 28 U.S.C. 157(d).

    —————————————————————————

    [[Page 36009]]

        “Cover” is proposed to be reworded to improve clarity; no
    substantive change is intended.
        “Customer” is proposed to be revised to reflect the revisions to
    part 190 through this rulemaking, specifically, noting the different
    meanings of “customer” with respect to an FCM in contrast to with
    respect to a DCO.
        “Customer claim of record” is proposed to be reworded to improve
    clarity; no substantive change is intended.
        “Customer class” is proposed to be revised to reflect the
    revisions to part 190 through this rulemaking, specifically emphasizing
    the difference between public customers and non-public customers.
        “Customer property, customer estate” is proposed to be updated to
    clarify cross-references and to note that customer property
    distribution is also addressed in section 766(i) of the Bankruptcy
    Code.
        “Dealer option” is proposed to be eliminated as this term is no
    longer used.
        “Debtor” is proposed to be revised to explicitly refer to
    commodity brokers involved in a bankruptcy proceeding, a proceeding
    under SIPA, or a proceeding under which the FDIC is appointed as a
    receiver.
        “Delivery account” is proposed to be cross-referenced to the new
    definition in “account class.”
        “Distribution” is proposed to be defined to include transfer of
    property on a customer’s behalf, return of property to a customer, as
    well as distributions to a customer of valuable property that is
    different than the property posted by that customer.
        “Equity” is proposed to be amended to update a cross-reference.
        “Exchange Act” and “FDIC” definitions are proposed to be added
    as the Commission is taking into account both in these proposed rules.
        “Filing Date” is proposed to be revised to include the
    commencement date for proceedings under SIPA or Title II of the Dodd-
    Frank Act.62
    —————————————————————————

        62 In SIPA, the term “filing date” is defined to occur
    earlier than the filing of an application for a protective decree if
    the debtor is the subject of a proceeding in which a receiver,
    trustee, or liquidator for the debtor has been appointed and such
    proceeding is commenced before the date on which the application for
    a protective decree under SIPA is filed. In such case, the term
    “filing date” is defined to mean the date on which such proceeding
    is commenced. By contrast, this proposal does not define the term
    “filing date” to occur earlier in such a case, although it would
    (in proposed Sec.  190.02(f), discussed below) authorize such a
    receiver to themselves file a voluntary petition for bankruptcy of
    the FCM.
        This difference is due to the different uses of the “filing
    date” in these rules and in SIPA. For purposes of part 190,
    “filing date” refers to the date on and after which a commodity
    broker is treated as a debtor in bankruptcy. See, e.g., proposed
    Sec. Sec.  190.00(c)(4), 190.06(a)(1) and (b)(1), 190.08(b)(4),
    190.09(a)(1)(ii)(A). For purposes of SIPA, by contrast, the “filing
    date” is the date on which securities are valued. See, e.g., SIPA
    sections 8(b), 8(c)(1), 8(d), 9(a)(3), 15 U.S.C. 78fff-2(b), (c)(1),
    (d), 78fff-3(a)(3).
    —————————————————————————

        “Final net equity determination date” is proposed to be revised
    stylistically, to provide updated cross-references, and to further
    clarify who the parties involved are intended to be.
        “Foreign board of trade” is proposed to be added, and adopts by
    reference the definition in Sec.  1.3 (which is consistent with Sec. 
    48.2(a)).
        “Foreign clearing organization” is proposed to be added to refer
    to a clearing house, clearing association, clearing corporation or
    similar entity, facility or organization that clears and settles
    transactions in futures or options on futures executed on or subject to
    the rules of a foreign board of trade.
        “Foreign future” and “Foreign futures commission merchant” are
    unchanged.
        “Foreign futures account” is proposed to be cross-referenced to
    the new definition in “account class.”
        “Foreign futures intermediary” is proposed to refer to a foreign
    futures or options broker, as defined in Sec.  30.1, acting as an
    intermediary for foreign futures contracts between a foreign futures
    commission merchant and a foreign clearing organization.
        “Funded balance” is proposed to be revised to refer to the
    definition in proposed Sec.  190.08(c). That definition is discussed
    further below.
        “Futures, futures contract” is proposed to be added to clarify
    what these terms mean for purposes of part 190.
        “Futures account” is proposed to be cross-referenced to the new
    definition in “account class.”
        “House account” is proposed to be modified to replace the current
    definition with one that (a) clarifies the connection between the
    concept of a “house account” in part 190 and the concept of a
    proprietary account in Sec.  1.3, and (b) separately defines the term
    in relation to an FCM, in relation to a foreign futures commission
    merchant, and in relation to a DCO.
        “In-the-money amount” is proposed to be deleted as the term will
    no longer be used. It is proposed to be replaced by “in-the-money,” a
    term that is Boolean, and is used in proposed Sec.  190.04(c).
        “Joint account” is proposed to be edited to reflect the fact that
    a commodity pool must be a legal entity.63 Thus, the reference to a
    commodity pool that is not a legal entity is removed.
    —————————————————————————

        63 See Sec.  4.20(a)(1).
    —————————————————————————

        “Leverage contract” and “Leverage transaction merchant” are
    proposed to be deleted, consistent with the discussion above with
    respect to proposed Sec.  190.00(d)(1)(i)(B).
        “Member property” is proposed to be moved from current Sec. 
    190.09(a), and clarified to note that member property may be used to
    pay net equity claims based on claims on behalf of non-public customers
    of the member.
        “Net equity” is proposed to be revised to update cross-
    references, including the difference between bankruptcy of an FCM and
    of a clearing organization.
        “Non-public customer” and “public customer”: These definitions
    are complements (i.e., every customer is either a public customer or a
    non-public customer, but not both). The Commission is proposing to
    define who is considered a public versus a non-public customer
    separately for FCMs and for clearing organizations.
        In the case of a customer of an FCM, the proposed regulation would
    explicitly define “public customer.” 64 The definition of public
    customer would be analyzed separately for each of the relevant account
    classes (futures, foreign futures, cleared swaps, and delivery) with
    the relevant cross-references to other Commission regulations. For the
    futures account class, this would be a futures customer as defined in
    Sec.  1.3 whose futures account is subject to the segregation
    requirements of section 4d(a) of the Act and the Commission regulations
    thereunder; for the foreign futures account class, a Sec.  30.7
    customer as defined in Sec.  30.1 whose foreign futures account is
    subject to the segregation requirements of Sec.  30.7; for the cleared
    swaps account class, a cleared swaps customer as defined in Sec.  22.1
    whose cleared swaps account is subject to the segregation requirements
    of part 22; and for the delivery account class, a customer that would
    be classified as a public customer if the property held in the
    customer’s delivery account had been held in an account described in
    one of the prior three categories. This would tie the definition of
    public customer for bankruptcy purposes to the definitions of
    “customer” (and segregation requirements) that apply during business
    as usual. An FCM’s

    [[Page 36010]]

    non-public customers would be defined as customers that are not public
    customers.
    —————————————————————————

        64 This is in contrast to the current definitions in Sec. 
    190.01(cc) and (ii), which explicitly define non-public customer,
    and define public customer as a customer that is not a non-public
    customer. This proposed change would not be intended to be
    substantive, but rather would be intended to foster closely tying
    the account classes to business-as-usual segregation requirements.
    —————————————————————————

        As part of the process for introducing a bespoke regime for the
    bankruptcy of a clearing organization, the proposed definitions also
    would differentiate between public and non-public customers for those
    purposes. Specifically, customers of clearing members (whether such
    clearing members are FCMs or foreign brokers) acting on behalf of their
    proprietary (i.e., house) accounts, would be non-public customers,
    while all other customers of clearing members would be public
    customers.
        In the case of members of a DCO that are foreign brokers, the
    determination as to whether a customer of such a member is a
    proprietary member would be based on either the rules of the clearing
    organization or the jurisdiction of incorporation of such member: If
    either designates the customer as proprietary member, then the customer
    would be treated as a proprietary member.
        “Open commodity contract” is proposed to be reworded to improve
    clarity; no substantive change is intended.
        “Order for relief” is proposed to be revised to update cross-
    references and to be reworded for stylistic purposes.
        “Person” is proposed to be added as a definition to clarify what
    this term means.
        “Physical delivery account class” is proposed to be cross-
    referenced to the new definition in “account class.”
        “Physical delivery property” See discussion above under “cash
    delivery property.”
        “Premium” is proposed to be deleted as that term is no longer
    used.
        “Primary liquidation date” is proposed to be revised to reflect
    the removal of the concept of accounts being held open for later
    transfer. As a result of such removal, the Commission would also delete
    current Sec.  190.03(a), which sets forth provisions regarding the
    operation of accounts held open for later transfer, since there will no
    longer be any such accounts.
        “Principal contract” is proposed to be deleted as that term is no
    longer used. This term was previously used to refer to contracts that
    are not traded on designated contract markets, but the definition
    excluded cleared swaps.
        “Public customer” is discussed under non-public customer.
        “Securities Account” and “SIPA” are proposed to be added to
    address the bankruptcy of an FCM that is also subject to the Securities
    Investor Protection Act. These are based on appropriate cross-
    references to the Exchange Act and SIPA.
        “Security” is proposed to be changed to update the cross-
    reference to the Bankruptcy Code.
        “Short term obligation” is proposed to be removed as the term is
    no longer used. It would be removed from the definition of specifically
    identifiable property, and the concept of a duration or maturity date
    of 180 days or less would be stated explicitly in the text of that
    latter definition.
        “Specifically identifiable property”: The Commission is proposing
    a new definition that updates and streamlines the definition in current
    Sec.  190.01(ll).
        The proposal in paragraph (1)(i) would focus on “futures
    accounts,” “foreign futures accounts,” and “cleared swaps
    accounts.” Paragraph (1)(i)(A) of the proposed definition corresponds
    in major part to paragraphs (ll)(1) and (6) of the current definition.
    For securities, paragraph (1)(i)(A)(1) of the proposal substantially
    copies current paragraph (ll)(1)(i), but would clarify that a security
    is not a short term obligation when it has “a duration or maturity
    date of more than 180 days.” Paragraph (1)(i)(A)(2) of the proposal
    simply would reformat current paragraph (ll)(6). For warehouse
    receipts, bills of lading, or other documents of title (paragraph
    (i)(B), corresponding to current paragraph (ll)(1)(ii)), the proposal
    would restate the corresponding portion of the current definition.
        Paragraph (1)(ii) of the definition in the proposal would further
    the approach of providing discretion to the trustee. It would include
    as specifically identifiable property commodity contracts that are
    treated as such in accordance with proposed Sec.  190.03(c)(2). As
    discussed further below,65 the latter provision would permit (but
    does not require) the trustee, following consultation with the
    Commission, to treat open commodity contracts of public customers as
    specifically identifiable property if they are held in a futures
    account, foreign futures account, or cleared swaps account that is
    designated as a hedging account in the debtor’s books and records, and
    if the trustee determines that treating the commodity contracts as
    specifically identifiable property is reasonably practicable under the
    circumstances of the case. In contrast, paragraph (ll)(2) of the
    current definition is more prescriptive. It refers to open commodity
    contracts that meet the following criteria: They (A) have not been
    transferred, (B) are identified on the books and records of the debtor
    FCM as held for the account of a particular customer, and (C) are
    either bona fide hedging positions or transactions as defined in Sec. 
    1.3 or are commodity option transactions that have been determined by
    the registered entity to be appropriate to the reduction of risks in
    the conduct and management of a commercial enterprise pursuant to rules
    that have been approved by the Commission pursuant to section 5c(c) of
    the CEA.
    —————————————————————————

        65 See section II.B.1.
    —————————————————————————

        Paragraph (ll)(3) of the current definition refers to documents of
    title, including warehouse receipts or bills of lading, or physical
    commodities that, as of the filing date, can be identified on the books
    and records of the debtor as received from or for the account of a
    particular customer as held specifically for the purpose of delivery or
    exercise. These types of property, to the extent included in the
    debtors estate, would be transposed in the proposed regulations to
    paragraphs (1) through (3) of the definition of physical delivery
    property, in this proposed Sec.  190.01, above, and discussed in that
    context.
        Paragraph (ll)(4) of the current definition refers to cash or other
    property deposited prior to the entry of the order for relief to pay
    for the taking of physical delivery on a long commodity contract, or
    the payment of the strike price upon exercise of a short put or a long
    call option contract on a physical commodity. Correspondingly,
    paragraph (ll)(5) of the current definition refers to the cash price
    tendered, for property deposited prior to the entry of the order for
    relief, where such property (i) has been deposited to make physical
    delivery on a short commodity contract, or for exercise of a long put
    or a short call option contract on a physical commodity, and (ii) is
    identified on the books and records of the debtor as received from or
    for the account of a particular customer on or after three calendar
    days before the first notice date (for delivery) or exercise date (for
    exercise). In either case, current paragraph (ll)(5) requires the
    customer to make delivery or exercise the option in accordance with the
    applicable contract market rules. These items both refer to cash, which
    is fungible, and thus are excluded from the definition of specifically
    identifiable property, but are instead proposed to be addressed in the
    definition of cash delivery property, the proper treatment of which is
    addressed in proposed Sec.  190.06(a)(3)(i)(B), discussed below.
        Current paragraph (ll)(7), which refers to open commodity contracts
    that have been transferred, would be deleted, in that open commodity
    contracts that

    [[Page 36011]]

    have been transferred are no longer part of the debtor’s estate, and
    thus no longer subject to liquidation as part of a bankruptcy. While
    the customer may well have to provide margin to the transferee in order
    to collateralize the contract, that requirement does not deny the
    customer the protection applicable to specifically identifiable
    property.
        Current paragraph (ll)(8), limiting treatment as specifically
    identifiable property to the items specified in the definition thereof
    would be transposed to proposed paragraph (3), while current paragraph
    (ll)(9), which excludes security futures products and related
    collateral from specifically identifiable property, if they are held in
    a securities account, would be transposed to proposed paragraph (2).
        “Strike price” is proposed to be reworded for brevity. No
    substantive change is intended.
        “Substitute customer property”: The Commission is proposing to
    add this definition to refer to the property (in the form of cash or
    cash equivalents) delivered to the trustee by or on behalf of a
    customer in order to redeem either specifically identifiable property
    or a letter of credit.
        “Swap” is proposed as the term used to refer to what is in the
    current regulation referred to as a “Cleared swap.” 66 The
    definition is proposed to be updated to reflect the current definition
    and meaning of the term “swap” under the Commission’s rules and
    regulations outside of part 190. The definition also would add as a
    swap, for purposes of this part, “any other contract, agreement or
    transaction that is carried in a cleared swaps account pursuant to a
    rule, regulation or order of the Commission, provided, in each case,
    that it is cleared by a clearing organization [i.e., a DCO] as, or the
    same as if it were, a swap.” 67
    —————————————————————————

        66 See Current Sec.  190.01(pp).
        67 Cf. 11 U.S.C. 761(4)(F)(ii) (including as a commodity
    contract “with respect to a futures commission merchant or clearing
    organization, any other contract, option, agreement, or transaction,
    in each case, that is cleared by a clearing organization”).
    —————————————————————————

        “Trustee” is proposed to be amended to include the trustee in a
    SIPA proceeding.
        “Undermargined”: The Commission proposes to define
    “undermargined” for purposes of part 190 as a futures account,
    foreign futures account, or cleared swaps account carried by the debtor
    is considered undermargined if the funded balance for such account is
    below the minimum amount that the debtor is required to collect and
    maintain for the open commodity contracts in such account under the
    rules of the relevant clearing organization, foreign clearing
    organization, DCM, Swap Execution Facility (“SEF”), or FBOT. If any
    such rules establish both an initial margin requirement and a lower
    maintenance margin 68 requirement applicable to any commodity
    contracts (or to the entire portfolio of commodity contracts or any
    subset thereof) in a particular commodity contract account of the
    customer, the trustee will use the lower maintenance margin level to
    determine the customer’s minimum margin requirement for such account.
    An undermargined account may or may not be in deficit.69
    —————————————————————————

        68 For further discussion of maintenance margin and its
    relationship to initial margin, see, e.g., https://www.cmegroup.com/education/courses/introduction-to-futures/margin-know-what-is-needed.html.
        69 An account is in deficit if the balance is negative (i.e.,
    the customer owes the debtor instead of the reverse). An account can
    be undermargined but not in deficit (if the balance is positive, but
    less than the required margin). See discussion of proposed Sec. 
    190.04(b)(4). For example, if the margin requirement is $100 and the
    account balance is $20, the account is undermargined by 80, but is
    not in deficit. If the account loses a further $35, the balance
    would be ($15). The account would be in deficit by $15, and would be
    undermargined by $115.
    —————————————————————————

        “Variation Settlement” is proposed to be added to define the
    payments a trustee may make with respect to open commodity contracts.
    It would include “variation margin” as defined in Sec.  1.3, and, in
    order to cover all of the potential obligations associated with an open
    commodity contract, also includes all other daily settlement amounts
    (such as price alignment payments) that may be owed or owing on the
    commodity contract.
        The Commission requests comment with respect to all aspects of
    proposed Sec.  190.01. In particular, are the revised definitions
    useful? Do any appear likely to lead to unintended consequences, and,
    if so, how may these best be mitigated?
    3. Regulation 190.02: General
        Proposed Sec.  190.02(a)(1) is derived from current Sec. 
    190.10(b)(1). There is one substantive change: the proposed section
    would permit a request to the Commission for exemption from any
    procedural provision (rather than limiting such requests to exemptions
    from, or extension of, a time limit). Such an exemption may be subject
    to conditions, and must be consistent with the purposes of this part
    and of subchapter IV of the Bankruptcy Code. This change would further
    major theme 7, discussed in section I.B above, of enhancing trustee
    discretion. It would allow, e.g., the trustee to request to be
    permitted to extend a deadline or to amend a form.
        Proposed Sec.  190.02(a)(2)(i) and (ii), (a)(3), and (b), are
    derived from current Sec. Sec.  190.10(b)(2), (3), and (4) and
    190.10(d), respectively, with minor editorial and conforming changes.
        Proposed Sec. Sec.  190.02(c) (forward contracts), (d) (other), and
    (e) (rule of construction) would be transposed from current Sec. 
    190.10(e), (g), and (h), respectively.
        Proposed Sec.  190.02(f) would be added to enhance customer
    protection in cases where a receiver has been appointed (pursuant to
    e.g., section 6c of the CEA) for an FCM due to a violation or imminent
    violation 70 of the customer property protection requirements of
    section 4d of the CEA or of the regulations thereunder, or of the
    Commission’s capital rule (Sec.  1.17 of this chapter). It would
    explicitly permit such a receiver to file a voluntary petition for
    bankruptcy of such FCM in appropriate cases. For example, the receiver
    may determine that, due to a deficiency in property in segregation,
    bankruptcy is necessary in order to protect customers’ interests in
    customer property.
    —————————————————————————

        70 Section 6c of the CEA provides in relevant part that
    whenever it shall appear to the Commission that any person has
    engaged, is engaging, or is about to engage in any act or practice
    constituting a violation of any provision of this Act or any rule,
    regulation, or order thereunder the Commission may bring an action
    in the proper district court to enjoin such act or practice, or to
    enforce compliance with this Act. Section 6c also refers to an order
    appointing a temporary receiver to administer such restraining order
    and to perform such other duties as the court may consider
    appropriate. 7 U.S.C. 13a-1.
    —————————————————————————

        The Commission requests comment with respect to all aspects of
    proposed Sec.  190.02. In particular, is it appropriate to permit
    trustees to request relief from procedural provisions such as
    requirements as to forms, in addition to requesting relief from
    deadlines? Is it appropriate to permit receivers for FCMs to file
    voluntary petitions in bankruptcy? Does any portion of proposed Sec. 
    190.02 appear likely to lead to unintended consequences, and, if so,
    how may these be mitigated?

    B. Subpart B–Futures Commission Merchant as Debtor

        The provisions of subpart B (proposed Sec. Sec.  190.03-190.10)
    address debtors that are FCMs.
    1. Regulation Sec.  190.03: Notices and Proofs of Claims
        In proposed Sec.  190.03, the Commission is proposing to reorganize
    and revise much of current Sec.  190.02. Moreover, some portions of
    current Sec.  190.10 have been reorganized into proposed Sec.  190.03,
    and have been revised.

    [[Page 36012]]

    a. Regulation Sec.  190.03(a): Notices–Means of Providing
        Proposed Sec.  190.03(a)(1) is substantially similar to current
    Sec.  190.10(a). In an effort to modernize part 190, the Commission
    proposes to delete the current requirement that all mandatory or
    discretionary notices to be given to the Commission under part 190 be
    sent to the Commission via overnight mail (i.e., hard copy). Proposed
    Sec.  190.03(a)(1) would retain the requirement that all such notices
    be sent to the Commission via electronic mail. Overnight hard copy
    delivery is unnecessary, and removing the requirement to send notices
    to the Commission via overnight mail will result in cost savings.
        Proposed Sec.  190.03(a)(2) is a new paragraph proposed by the
    Commission to provide a general means of providing notice to customers
    under part 190. Proposed Sec.  190.03(a)(2) would replace the specific
    procedures for providing notice to customers that currently appear in
    Sec.  190.02(b) and, in light of evolving technology since the original
    issuance of part 190, implement a more generalized approach for giving
    notice to customers, whereby the trustee must establish and follow
    procedures “reasonably designed” for giving notice to customers under
    part 190. In addition, in an effort to modernize part 190, the
    Commission proposes to state that such notice procedures should
    generally include the use of a website and customers’ electronic
    addresses. In the Commission’s view, this new approach provides
    trustees with the necessary flexibility to determine the best way to
    provide notice to customers under part 190 and is consistent with the
    manner in which bankruptcy trustees in recent FCM bankruptcy cases have
    provided notice to customers. The Commission anticipates that adopting
    the more generalized approach to notifying customers set forth in
    proposed Sec.  190.03(a)(2), rather than retaining the specific notice
    requirements in the existing regulations, including newspaper
    publication, will result in both cost savings for the debtor’s estate,
    and more efficient and effective notification of customers.
        The Commission requests comment as to the proposed approach to
    notice requirements set forth in proposed Sec.  190.03(a). Are the
    proposed changes helpful? Do the proposed revisions appear likely to
    lead to unintended consequences, and, if so, how may such consequences
    be mitigated?
    b. Regulation Sec.  190.03(b): Notices to the Commission and Designated
    Self-Regulatory Organizations
        Proposed Sec.  190.03(b)(1) is derived from current Sec. 
    190.02(a)(1). The time requirements set forth in proposed Sec. 
    190.03(b)(1) are meant to ensure that the Commission and the relevant
    designated SRO (“DSRO”) 71 will be aware of a bankruptcy filing or
    SIPA application as soon as is practicable. These changes to the
    regulation are designed to codify the practices observed in recent
    bankruptcy and SIPA cases.
    —————————————————————————

        71 For further detail regarding SROs and DSROs see generally
    Sec.  1.52.
    —————————————————————————

        The Commission proposes to revise the time within which a commodity
    broker must notify the Commission in the event of a voluntary or
    involuntary bankruptcy filing.72 First, proposed Sec.  190.03(b)(1)
    would provide that, in the event of a voluntary bankruptcy filing, the
    commodity broker must notify the Commission and the appropriate
    designated SRO (“DSRO”) as soon as practicable before, and in any
    event no later than, the time of filing.73
    —————————————————————————

        72 A voluntary case under a chapter of the Bankruptcy Code is
    commenced by the debtor by filing a petition under that chapter.
    Section 301(a) of the Bankruptcy Code, 11 U.S.C. 301(a). (A
    commodity broker may only be a debtor under chapter 7. See generally
    section 109 of the Bankruptcy Code, 11 U.S.C. 109.) Under certain
    circumstances, creditors of a person may file an involuntary case
    against that person pursuant to section 303 of the Bankruptcy Code,
    11 U.S.C. 303. In such cases, the order for relief will be granted
    only if the petition is not timely controverted or if the court
    makes specific findings. Id. There is no historical precedent for an
    involuntary petition in bankruptcy being filed against a commodity
    broker.
        73 The historical background of such notice is discussed below
    in section II.C.1.
    —————————————————————————

        Second, proposed Sec.  190.03(b)(1) would provide that, in the
    event of an involuntary bankruptcy filing or an application for a
    protective decree under SIPA,74 the commodity broker must notify the
    Commission and the appropriate DSRO immediately upon the filing of such
    petition or application.
    —————————————————————————

        74 A SIPA proceeding is commenced when SIPC files a petition
    for a protective order. See generally SIPA section 5, 15 U.S.C.
    78eee.
    —————————————————————————

        Moreover, as a practical matter, a decision to file for bankruptcy
    takes measurable time, as does the preparation of the necessary papers.
    The Commission notes that, in previous FCM voluntary bankruptcy
    filings, the commodity broker has provided the Commission and its DSRO
    with notice ahead of the bankruptcy filing. Proposed Sec.  190.03(b)(1)
    merely would codify the expectation that such advance notice should, in
    fact, occur to the extent practicable.
        Proposed Sec.  190.03(b)(1) further would amend current Sec. 
    190.02(a)(1) by allowing the commodity broker to provide the relevant
    docket number of the bankruptcy or SIPA proceeding to the Commission
    and the DSRO “as soon as known,” in order to account for the fact
    that there may be a time lag between the filing of a proceeding and the
    assignment of a docket number. It is better that the Commission
    promptly be notified of the filing, rather than waiting for assignment
    and communication of the docket number.
        Proposed Sec.  190.03(b)(2), concerning intent to transfer customer
    accounts, is derived from current Sec.  190.02(a)(2). Current Sec. 
    190.02(a)(2) provides that the trustee, the applicable DSRO, or the
    commodity broker must notify the Commission of an intent to transfer or
    to apply to transfer open commodity contracts in accordance with
    section 764(b) of the Bankruptcy Code and relevant provisions of
    current part 190 no later than three days after the order for relief.
    Proposed Sec.  190.03(b)(2) would remove the deadline for such
    notification because three days is likely in many cases to be too long,
    but may in some cases be too short.
        The Commission expects that the bankruptcy trustee would begin
    working on transferring any open commodity contracts as soon as the
    trustee is appointed and that, by the end of three days following entry
    of the order for relief, any such transfers likely will be either
    completed, actively in process or determined not to be possible.
    Indeed, the Commission expects that a DCO would, in most cases, be
    reluctant to hold a position open for more than three days following
    entry of the order for relief unless a transfer is actively in process
    and imminent. Thus, while the Commission recognizes that the “[a]s
    soon as possible” language is somewhat vague, given past experience,
    the Commission views the current timeframe of three days after entry of
    the order for relief as generally too long, and it is not clear what
    precise shorter period of time would be generally appropriate, given
    the uniqueness of each case. Under different circumstances, that is,
    where transfer arrangements cannot be made within three days after the
    order for relief, a specified deadline for notification may in fact be
    harmful, in that it could be interpreted to prohibit notification after
    the expiration of such deadline (and thus, impliedly prohibit the
    trustee from forming the intent to transfer after that time).
        In the event of an FCM bankruptcy, the Commission anticipates that
    there will be frequent contact between the trustee, the relevant DSRO,
    any relevant clearing organization(s), and the

    [[Page 36013]]

    Commission; thus, a specified deadline for such notification to occur
    would not appear to be helpful under such circumstances. The proposal
    also clarifies that notification should be made with respect to a
    transfer of customer property.
        The Commission requests comment on proposed Sec.  190.03(b). As
    proposed, would Sec.  190.03 meet the objective of ensuring that the
    Commission and the relevant DSRO will be aware of a bankruptcy filing
    or SIPA proceeding as soon as is practicable? Why or why not?
    c. Regulation Sec.  190.03(c): Notices to Customers; Treatment of
    Hedging Accounts and Specifically Identifiable Property
        Proposed Sec.  190.03(c) introductory text would address notices to
    customers and treatment of hedging accounts and specifically
    identifiable property.
        Proposed Sec.  190.03(c)(1) would deal with notices to customers
    concerning specifically identifiable property other than open commodity
    contracts, and is derived from current Sec.  190.02(b)(1). Proposed
    Sec.  190.03(c)(1) would require the trustee to use all reasonable
    efforts to notify promptly any customer whose futures account, foreign
    futures account, or cleared swaps account includes specifically
    identifiable property, that such specifically identifiable property may
    be liquidated on and after the seventh day after the order for relief
    if the customer has not instructed the trustee in writing before the
    deadline specified in the notice to return such property pursuant to
    the terms for distribution of customer property contained in proposed
    part 190.
        The Commission would remove the requirement that the trustee
    publish notice to customers regarding specifically identifiable
    property in a newspaper for two consecutive days prior to liquidating
    such property. Instead, the new notice requirement to customers under
    part 190 are contained in proposed Sec.  190.03(a)(2), which would
    provide that a trustee must establish and follow procedures
    “reasonably designed for giving adequate notice to customers.” As
    noted above, this change is meant to provide the trustee with
    flexibility in notifying customers regarding specifically identifiable
    property, and to modernize part 190 to allow the trustee to provide
    notice to customers in a way that will maximize the number of customers
    reached.
        Pursuant to current Sec.  190.02(b)(1), the trustee may commence
    liquidation of specifically identifiable property on the sixth calendar
    day following the second publication date of the notice to customers.
    Because proposed Sec.  190.03(c)(1) would not require newspaper
    publication of customer notice, the Commission would allow the trustee
    to commence liquidation of specifically identifiable property on the
    seventh day after the order for relief (or such other date as specified
    by the trustee with the approval of the Commission or the court), so
    long as the trustee has used all reasonable efforts promptly to notify
    the customer under Sec.  190.03(a)(2) and the customer has not
    instructed the trustee in writing to return such specifically
    identifiable property.
        With respect to the return of specifically identifiable property,
    proposed Sec.  190.03(c)(1) would add that the trustee’s notice to
    customers whose futures accounts, foreign futures accounts, or cleared
    swaps accounts include specifically identifiable property must specify
    the terms upon which such property may be returned, “including, if
    applicable and to the extent practicable, any substitute customer
    property that must be provided by the customer.” This addition is
    meant to make clear that the trustee’s notice to customers with
    specifically identifiable property should include, where applicable, a
    reference to substitute customer property.75
    —————————————————————————

        75 For an explanation of why proposed Sec.  190.03(c)(1) would
    refer to “substitute customer property” rather than “cash,”
    please see discussion below, section II.B.7, in connection with
    proposed Sec.  190.09(d)(1).
    —————————————————————————

        Proposed Sec.  190.03(c)(2) would change how a bankruptcy trustee
    may treat open commodity contracts carried in hedging accounts to a
    categorical approach; it would replace the bespoke approach of current
    Sec.  190.02(b)(2). Part 190 currently treats hedging positions as a
    type of specifically identifiable property, where the customer is given
    special rights, namely, to have the trustee endeavor to avoid
    liquidating its hedging positions.76 Under current Sec. 
    190.02(b)(2), the trustee treats customers with specifically
    identifiable open commodity contracts on a bespoke basis; specifically,
    to the extent the trustee does not receive transfer instructions
    regarding a customer’s specifically identifiable open commodity
    contracts, the trustee is required to liquidate such contracts within a
    certain time period.
    —————————————————————————

        76 See current Sec. Sec.  190.01(ll), 190.02(f)(1)(ii), and
    190.04(e)(1).
    —————————————————————————

        Proposed Sec.  190.03(c)(2) would take a more categorical approach
    with respect to open commodity contracts. As discussed in major theme 7
    in section I.B above, recent commodity broker bankruptcies have
    involved many thousands of customers, with as many as hundreds of
    thousands of commodity contracts. Trustees must make decisions as to
    how to handle such customers and contracts within days–in some cases,
    hours–after being appointed.
        In light of the practical difficulties of treating such large
    numbers of customers with similar open commodity contracts on a bespoke
    basis, under proposed Sec.  190.03(c)(2), the Commission is proposing
    instead to give the trustee authority (i.e., an option, but not an
    obligation), to treat open commodity contracts of public customers held
    in hedging accounts designated as such in the debtor’s records as
    specifically identifiable property, after consulting with the
    Commission and when practical under the circumstances.77 To the
    extent the trustee exercises such authority, proposed Sec. 
    190.03(c)(2) would provide that the trustee must notify each relevant
    public customer in accordance with proposed Sec.  190.03(a)(2) and
    request that the customer provide instructions whether to transfer or
    liquidate the relevant open commodity contracts.78
    —————————————————————————

        77 See also discussion of “Changing the Special Treatment for
    Hedge Positions” in the ABA Cover Note:
        Given the policy preference set out in the Model Part 190 Rules
    that the trustee should attempt to port positions of public
    customers, which in practice is what typically occurs in actual
    subpart IV proceedings, we question the need to provide special
    protection to assure that hedge positions are transferred. We are
    also concerned that if a trustee is required to identify hedge
    accounts and provide the hedge account holders the opportunity to
    keep their positions open, that could interfere with the trustee’s
    ability to take prudent and timely action to manage the debtor FCM’s
    estate to protect all customers. We have attempted to strike a
    balance by allowing the trustee to provide special hedge account
    treatment when it is practical to do so.
        ABA Cover Note at 11-12.
        78 The Commission also would make other changes that are
    intended to make it simpler for the trustee to identify hedging
    positions and allow an FCM to designate an account as a hedging
    account by relying on explicit customer representations that the
    account contains a hedging position. See proposed Sec.  190.10(b).
    This would simplify the existing requirement that FCMs provide a
    hedging instructions form when a customer first opens up a hedging
    account. For commodity contract accounts opened prior to the
    effective date of the part 190 revisions, the Commission is
    proposing that FCMs may rely on written hedging instructions
    received from the customer in accordance with current Sec. 
    190.06(d). See proposed Sec.  190.10(b)(3).
    —————————————————————————

        Proposed Sec.  190.03(c)(2) would also require the notice to
    customers to inform the customer that (i) if the customer does not
    provide instructions in the prescribed manner and by the prescribed
    deadline, the customer’s open commodity contracts will not be treated
    as specifically identifiable property; (ii) any transfer of the open
    commodity contracts is subject to the terms for distribution contained
    in

    [[Page 36014]]

    proposed Sec.  190.09(d)(2); (iii) absent compliance with any terms
    imposed by the trustee or the court, the trustee may liquidate the open
    commodity contracts; and (iv) providing instructions may not prevent
    the open commodity contracts from being liquidated.
        To the extent the trustee does not exercise its authority to treat
    public customer positions carried in a hedging account as specifically
    identifiable property, the trustee would endeavor to, as the baseline
    expectation, treat open commodity contracts of public customers carried
    in hedging accounts the same as other customer property and effect a
    transfer of such contracts to the extent possible. The Commission is
    proposing to make these changes to reflect the policy preference to
    port all positions of public customers. Requiring a trustee to identify
    hedging accounts and provide the hedging account holders the
    opportunity to keep their positions open may be a resource and time
    intensive process, which could interfere with the trustee’s ability to
    take prudent and timely action to manage the debtor FCM’s estate to
    protect all of the FCM’s customers. By allowing the FCM to rely on
    representations made by customers during business-as-usual, the trustee
    will be able to take timely and prudent action to manage the debtor
    FCM’s estate and protect all customers. In cases where it may be
    practical, the trustee may elect to provide special hedging account
    treatment.
        Proposed Sec.  190.03(c)(3) would address notice of an involuntary
    bankruptcy proceeding, and is derived from current Sec.  190.02(b)(3).
    Both sections provide that a trustee appointed in an involuntary
    proceeding may notify customers of the commencement of such a
    proceeding prior to entry of an order for relief, and upon leave of the
    court, and that a trustee in an involuntary proceeding may request
    customer instructions with respect to the return, liquidation or
    transfer of specifically identifiable property. Proposed Sec. 
    190.03(c)(3) would add a specific reference to proposed Sec. 
    190.03(a)(2), which would set forth the procedure the trustee must
    follow in providing notice to customers. This change is intended to
    make clear that the notice described in proposed Sec.  190.03(c)(3)
    must be in accordance with the notice provisions set forth in proposed
    Sec.  190.03(a)(2). In addition, the Commission proposes to change the
    reference to “the trustee” in current Sec.  190.02(b)(3) to “a
    trustee” in proposed Sec.  190.03(c)(3) since appointment of a trustee
    in an involuntary bankruptcy proceeding is not automatic.79 Lastly,
    the Commission would delete the specific reference to “open commodity
    contracts at the end of current Sec.  190.02(b)(3); given that the
    treatment of open commodity contracts as specifically identifiable
    property is likely to be less relevant under the proposed regulations,
    the Commission is proposing that such specific reference is
    unnecessary.
    —————————————————————————

        79 See 11 U.S.C. 303(g).
    —————————————————————————

        Proposed Sec.  190.03(c)(4) would require the bankruptcy trustee to
    notify customers that an order for relief has been entered and instruct
    customers to file a proof of customer claim and is derived from current
    Sec.  190.02(b)(4). Proposed Sec.  190.03(c)(4) would add a specific
    reference to proposed Sec.  190.03(a)(2), which would set forth the
    procedure the trustee must follow in providing notice to customers.
    This change would make clear that the notice described in proposed
    Sec.  190.03(c)(4) must be in accordance with the notice provisions set
    forth in proposed Sec.  190.03(a)(2).
        In addition, the Commission would replace the term “customer of
    record” in current Sec.  190.02(b)(4) with “customer” in proposed
    Sec.  190.03(c)(4). The term “customer of record” is not a defined
    term in part 190, and the Commission notes that whether or not a
    customer qualifies as a “customer of record,” all customers should
    receive notice that an order for relief has been entered. Specifically,
    those customers for whom the debtor has contact information in its
    records should be notified using such contact information. For those
    customers whose contact information is not available in the debtor’s
    records, notice is effectively given via the use of a website pursuant
    to proposed Sec.  190.03(a)(2).
        Proposed Sec.  190.03(c)(4) also would provide that the trustee
    shall cause the proof of customer claim form to set forth the bar date
    for its filing, a requirement that exists in current Sec.  190.02(d).
        The Commission requests comment on proposed Sec.  190.03(c). Are
    the proposed changes to the notice requirements helpful? Is the grant
    of discretion to the trustee concerning whether hedging accounts should
    be treated as specifically identifiable property (based on a policy of
    facilitating cost effective and prompt administration of the debtor’s
    estate) appropriately tailored? Do the proposed revisions appear likely
    to lead to unintended consequences, and, if so, how may such
    consequences be mitigated?
    d. Regulation Sec.  190.03(d): Notice of Court Filings
        Proposed Sec.  190.03(d) addresses notice of court filings and is
    derived from current Sec.  190.10(f). The Commission would replace the
    term “court papers” in current Sec.  190.10(f) to “court filings”
    in proposed Sec.  190.03(d), as, in the Commission’s view, the term
    “court filings” is a more accurate description, given that the
    modernization of court filings means that many are filed electronically
    rather than in paper form. In addition, whereas current Sec.  190.10(f)
    provides that all court papers must be directed to the Washington, DC
    headquarters of the Commission, in an effort to modernize this
    paragraph, proposed Sec.  190.03(d) would refer back to proposed Sec. 
    190.03(a)(1), which requires notices to the Commission to be sent by
    electronic mail.
        The Commission requests comment on proposed Sec.  190.03(d). Do the
    proposed revisions appear likely to lead to unintended consequences,
    and, if so, how may such consequences be mitigated?
    e. Section 190.03(e): Proof of Customer Claim
        Proposed Sec.  190.03(e) would set forth the requirement for a
    trustee to request that customers provide information sufficient to
    determine a customer’s claim in accordance with the regulations
    contained in part 190, and is derived from current Sec.  190.02(d). The
    proposed regulation would list certain information that customers shall
    be requested to provide, to the extent reasonably practicable, but
    would grant the trustee discretion to adapt the request to the facts of
    the particular case. This discretion would be granted to the trustee in
    order to enable them to tailor the proof of claim form to the
    information that, in the considered view of the trustee, is most
    appropriate in light of the specifics of the types of business that the
    debtor did (and did not do), the way in which such types of business
    were organized, and the available records of the debtor (as well as the
    reliability of those records).
        Proposed Sec.  190.03(e) would reorganize and revise certain
    information items that are listed in current Sec.  190.02(d), though
    most of the information items listed in proposed Sec.  190.03(e)
    correspond to those listed in current Sec.  190.02(d). The changes to
    the listed information items are as follows:
         Proposed Sec.  190.03(e)(1) corresponds to current Sec. 
    190.02(d)(1). Proposed Sec.  190.03(e)(1) would add, for clarity, the
    four types of commodity contract

    [[Page 36015]]

    accounts as defined in proposed Sec.  190.01.
         Proposed Sec.  190.03(e)(2) corresponds to current Sec. 
    190.02(d)(4). Proposed Sec.  190.03(e)(2) would ask whether the
    claimant itself is a public or non-public customer, rather than asking
    whether the account is a public or non-public customer account, as
    current Sec.  190.02(d)(4) does. In the Commission’s view, such a
    revision corresponds to the fact that “public customer” and “non-
    public customer” are the terms that would be defined in proposed part
    190, and the information provided by customers should correspond to
    those defined terms.
         Proposed Sec.  190.03(e)(3) would gather certain
    information that should be collected with respect to commodity contract
    accounts held by each claimant with the debtor. Much of the information
    that would be requested in proposed Sec.  190.03(e)(3) is included in
    current Sec.  190.02(d), though it would be reorganized and several
    information items would be revised. Proposed Sec.  190.03(e)(3) would
    ask for (i) the account number; (ii) the name in which the account is
    held; (iii) the balance as of the last account statement and any
    subsequent activity that would affect the balance of the account as
    stated on the last account statement; (iv) the capacity in which the
    account is held; (v) whether the account is a joint account and, if so,
    the claimant’s percentage interest in the account; (vi) whether the
    account is discretionary; (vii) whether the account is an individual
    retirement account for which there is a custodian; and (viii) whether
    the account is a cross-margining account for futures and securities.
         Proposed Sec.  190.03(e)(4) would seek information
    regarding any accounts held by the claimant with the debtor that are
    not commodity contract accounts. Proposed Sec.  190.03(e)(4) would be
    added in order for a claimant to provide a full picture of all accounts
    it holds with the debtor beyond those classified as commodity contract
    accounts that are listed in response to paragraph (e)(3) of this
    section.
         Proposed Sec.  190.03(e)(5) is derived from current Sec. 
    190.02(d)(6). Proposed Sec.  190.03(e)(5) would seek information
    regarding all claims against the debtor not based upon a commodity
    contract account or an account listed in response to paragraph (e)(4)
    of this section. This provision is meant for a claimant to provide a
    full picture of all claims it has against the debtor beyond those
    arising from its commodity accounts with the debtor.
         Proposed Sec.  190.03(e)(6) is the same as current Sec. 
    190.02(d)(7). Proposed Sec.  190.03(e)(6) would seek information
    regarding any claims of the debtor against the claimant. Proposed Sec. 
    190.03(e)(6) would be included in order for a claimant to provide any
    information about amounts it might owe to the debtor.
         Proposed Sec.  190.03(e)(7) is derived from current Sec. 
    190.02(d)(8), though the wording would be revised from that in current
    part 190. While current Sec.  190.02(d)(8) asks about any “deposits of
    money, securities or property” that the claimant holds with the
    debtor, proposed Sec.  190.03(e)(7) would seek information regarding
    “any open positions, unliquidated securities or other unliquidated
    property” that the claimant may hold with the debtor. This change is
    meant to correspond to the various forms that specifically identifiable
    property may take. In addition, proposed Sec.  190.03(e)(7) explicitly
    would ask for the value of any open positions, unliquidated securities
    or other unliquidated property. A claimant in an FCM bankruptcy should
    provide its own view as to the value of such open positions,
    unliquidated securities or other unliquidated property in order to
    support its claim against the debtor.
         Proposed Sec.  190.03(e)(8) corresponds to current Sec. 
    190.02(d)(11). The Commission is proposing slight revisions to the text
    in the proposed regulation and would ask the claimant to first identify
    whether it holds positions in security futures products and, only if
    so, to specify the type of account(s) in which such positions are held.
         Proposed Sec.  190.03(e)(9) corresponds to current Sec. 
    190.02(d)(12). The Commission would change the word “possible” to
    “practicable” to clarify that there may be situations where payment
    in kind is indeed possible but not practicable, and thus to manage
    expectations.
         Proposed Sec.  190.03(e)(10) is the same as current Sec. 
    190.02(d)(13). The Commission continues to believe that a claimant in
    an FCM bankruptcy proceeding should provide copies of any documents
    that support the information contained in the proof of customer claim.
        There is one information item listed in current Sec.  190.02(d)
    that would not appear in proposed Sec.  190.03(e). Proposed Sec. 
    190.03(e) would not include current Sec.  190.02(d)(9), which asks
    whether the claimant is or was an “affiliate,” “insider,” or
    “relative” of the debtor as those terms are defined by sections
    101(2), (25), and (34) of the Bankruptcy Code. This deletion is
    proposed due to the fact that proposed Sec.  190.03(d)(4) now asks
    whether the claimant is a public or non-public customer, terms that are
    defined within proposed part 190. Therefore, a reference to terms as
    defined in the Bankruptcy Code is no longer necessary.
        Finally, the header language to proposed Sec.  190.03(e), unlike
    that to current Sec.  190.02(d), would not contain a requirement that
    the proof of customer claim form set forth the bar date for its filing
    because such requirement would be moved to proposed Sec.  190.03(c)(4),
    as discussed above.
        The Commission requests comment on proposed Sec.  190.03(e). Are
    the proposed changes helpful? Is the grant of discretion to the trustee
    concerning the data to be requested appropriately tailored? Do the
    proposed revisions appear likely to lead to unintended consequences,
    and, if so, how may such consequences be mitigated?
    f. Regulation Sec.  190.03(f): Proof of Claim Form
        Proposed Sec.  190.03(f) is a new paragraph which would provide
    that a template proof of claim form is included as appendix A to part
    190.80 The Commission would substantially revise the customer proof
    of claim form referred to in proposed Sec.  190.03(f), and that is
    described above in the discussion of proposed Sec.  190.03(e). In
    revising the customer proof of claim form, the Commission has
    endeavored to streamline the form, and to better map it to the
    information listed in proposed Sec.  190.03(e). In that respect, the
    revised customer proof of claim form now would include, in each
    section, citations to the location in the text of proposed Sec. 
    190.03(e) where such information is listed.
    —————————————————————————

        80 Appendix A is discussed in section II.D below.
    —————————————————————————

        Proposed Sec.  190.03(f)(1) would provide that, to the extent there
    are no open commodity contracts that are being treated as specifically
    identifiable property, the bankruptcy trustee should modify the proof
    of claim form to delete any references to open commodity contracts as
    specifically identifiable property. This would be the case, if, e.g.,
    all open commodity contracts had been transferred or liquidated before
    the proof of claim form is sent. Proposed Sec.  190.03(f)(2) would make
    clear that the trustee has discretion whether to use the template proof
    of claim form, and that the proof of claim form should be modified to
    reflect the specific facts and circumstances of the case. The
    provisions of proposed Sec.  190.03(f), taken together, are meant to
    provide bankruptcy trustees with the appropriate flexibility to
    determine the

    [[Page 36016]]

    best and most efficient way to compose the customer proof of claim
    form.
        The Commission requests comment on proposed Sec.  190.03(f). Are
    the proposed changes to the treatment of the proof of customer claim
    form helpful? Do the revisions appear likely to lead to unintended
    consequences, and, if so, how may such consequences be mitigated? Is
    the discretion granted to the trustee appropriately tailored? If not,
    what changes should be made?
    2. Regulation Sec.  190.04: Operation of the Debtor’s Estate–Customer
    Property
        Proposed Sec.  190.04 would address the collection of margin and
    variation settlement, as well as the liquidation and valuation of
    positions. The Commission is proposing to clarify and update portions
    of current Sec. Sec.  190.02, 190.03, and 190.04 in its proposed Sec. 
    190.04. Changes from the current to the proposed regulation text are
    discussed below.
        The Commission is proposing to revise current Sec.  190.02(e)
    regarding transfers for customers in a bankruptcy proceeding in
    proposed Sec.  190.04(a). It would largely retain the current
    provisions, including the identification of a clear policy preference
    81 that the trustee should use its best efforts to transfer open
    commodity contracts and property held by the failed FCM for or on
    behalf of its public customers to one or more solvent FCMs.82
    Proposed Sec.  190.04(a)(1) would provide that the trustee “shall
    promptly” use its best efforts to effect such transfers, while current
    Sec.  190.02(e)(1) states that the trustee “must immediately” do so.
    This revision would be a minor change, designed to signal to the
    trustee to take action to transfer open commodity contracts as soon as
    practicable, while avoiding the potential pressure of the term
    “immediately” in light of the challenges presented in an FCM
    bankruptcy. In addition, in proposed Sec.  190.04(a)(2), the Commission
    is proposing a clarifying change to replace the term “equity” with
    “property.” In doing so, the Commission would clarify that the
    trustee should endeavor to transfer all types of property that the
    commodity broker is holding on behalf of customers; the transfer is not
    limited to equity. The Commission also would add the word “public”
    before “customers” to clarify that the transfers discussed in
    proposed Sec.  190.04(a)(1) relate to the open commodity contracts and
    property of the debtor’s public customers.83
    —————————————————————————

        81 The rationale for this policy preference is addressed in
    the discussion of proposed Sec.  190.00(c)(4) in section II.A.1
    above. See also ABA Cover Note at 14 (“We recommend explicitly
    identifying in proposed Rule 190.04(a) a clear policy that the
    trustee should use best efforts to transfer open commodity contracts
    and property held by the failed FCM for or on behalf of its public
    customers to one or more solvent FCMs.”
        82 Proposed Sec.  190.04(a) also would contain updated cross-
    references to other provisions within proposed part 190 that discuss
    transfers of customer property.
        83 The Commission is proposing the same change–addition of
    the word “public” before “customers”–to proposed Sec. 
    190.04(a)(2), discussed below.
    —————————————————————————

        Proposed Sec.  190.04(a)(2) is derived from current Sec. 
    190.02(e)(2), and would address transfers in the case of involuntary
    proceedings. In proposed Sec.  190.04(a)(2), the Commission would
    strike language from current Sec.  190.02(e)(2), addressing involuntary
    cases, that would limit a commodity broker against which an involuntary
    petition in bankruptcy is filed to trading for liquidation only unless
    otherwise directed by the Commission, by any applicable self-regulatory
    organization or by the court. Limitations on the business of an FCM in
    bankruptcy would be dealt with more generally in proposed Sec. 
    190.04(e)(4); there is no need to separately address involuntary
    cases.84 Proposed Sec.  190.04(a)(2), like current Sec. 
    190.02(e)(2), also would provide that if such a commodity broker
    demonstrates to the Commission within a specified period of time that
    it is in compliance with the Commission’s segregation and financial
    requirements on the filing date, the Commission may determine to allow
    the commodity broker to continue in business. The Commission would
    retain this provision because, in the Commission’s view, any
    requirement to transfer customers is properly addressed pursuant to
    Sec.  1.17(a)(4), which deals with FCMs that do not meet minimum
    financial requirements. The Commission preliminarily is of the view
    that an FCM that does meet such requirements should not be compelled to
    cease business and transfer its customers absent an appropriate finding
    by a court or the Commission. In addition, similarly to proposed Sec. 
    190.04(a)(1), discussed above, the Commission would replace the term
    “equity” with “property” to clarify that the transfers discussed in
    proposed Sec.  190.04(a)(2) are for all types of property that the
    commodity broker is holding on behalf of customers, rather than limited
    to only equity. Also, as in proposed Sec.  190.04(a)(1), discussed
    above, the Commission would add the word “public” before
    “customers” to clarify that the transfers discussed in proposed Sec. 
    190.04(a)(1) relate to the open commodity contracts and property of the
    debtor’s public customers.
    —————————————————————————

        84 The reference to “liquidation” further down in current
    Sec.  190.02(e)(4) accordingly would be deleted, since the
    limitation to trading for liquidation only would be deleted from the
    proposed provision.
    —————————————————————————

        In proposed Sec.  190.04(b)(1), the Commission would clarify and
    update the provisions in current Sec.  190.02(g)(1) allowing a trustee
    to make “variation and maintenance margin payments” on behalf of the
    debtor FCM’s customers. While the proposed regulation is intended to be
    consistent with the current regulation, there are a number of
    substantive changes to the proposed regulation from the current
    regulation text.
        First, the current regulation limits margin payments to “pending
    liquidation.” In fact, the approach consistent with the Commission’s
    longstanding policy is for the trustee to endeavor to transfer open
    commodity contracts. The trustee has two paths for the treatment of
    such contracts: Transfer and, if transfer is not possible, liquidation.
    The regulation would accordingly be revised to permit the trustee to
    make margin payments pending transfer or liquidation, not just pending
    liquidation.
        Second, the current provision could be read to prohibit margin
    payments for contracts that are being held open. While holding
    contracts open may or may not be practicable given the particular
    circumstances of the bankruptcy, a complete prohibition against paying
    margin on such open contracts would undermine the point of having the
    possibility to hold those contracts open. Accordingly, the proposed
    regulation would delete the phrase “required to be liquidated under
    paragraph (f)(1) of this section” and thus would instead apply more
    broadly to any open commodity contracts.
        The following changes are more technical in nature.
        Third, the proposed regulation would replace the phrase “variation
    and maintenance margin payments” with “payments of initial margin and
    variation settlement” which, in the Commission’s view, more accurately
    describes the types of payments being reflected in this provision.
    Fourth, the proposed regulation would replace the phrase “to a
    commodity broker” with “to a clearing organization, commodity broker,
    foreign clearing organization or foreign futures intermediary” to
    account for the various types of entities to which a margin payment
    described in this provision may be made. Lastly, the proposed
    regulation would replace the phrase “specifically identifiable to a
    particular customer” with “specifically identifiable property of a
    particular customer” in order to be consistent with

    [[Page 36017]]

    the definitions in proposed part 190, which includes as a defined term
    “specifically identifiable property.”
        Proposed Sec.  190.04(b)(1)(i), which is derived from current Sec. 
    190.02(g)(1)(i), would prevent the trustee from making any payments on
    behalf of any commodity contract account that is in deficit, to the
    extent within the trustee’s control. The Commission also would add the
    phrase “to the extent within the trustee’s control” as recognition of
    the fact that certain commodity contract accounts may be held on an
    omnibus basis (i.e., on behalf of several customers), so to the extent
    the trustee is making a margin payment on behalf of the omnibus
    account, it may be out of the trustee’s control to identify and only
    pay on behalf of those underlying customer accounts (within the omnibus
    account) that are not in deficit. The Commission, lastly, would add a
    proviso noting that proposed Sec.  190.04(b)(1)(i) shall not be
    construed to prevent a clearing organization, foreign clearing
    organization, FCM or foreign futures intermediary from exercising its
    rights to the extent permitted under applicable law. The Commission is
    proposing this addition to remove any doubt that the right of these
    “upstream” entities to use collateral posted by the FCM on an omnibus
    basis is not affected by the prohibition on making margin payments on
    behalf of accounts that are in deficit.
        Proposed Sec.  190.04(b)(1)(ii) is new and would add a restriction
    that the trustee cannot make an upstream margin payment with respect to
    a specific customer account that would exceed the funded balance of
    that account. This revision would be consistent with the pro rata
    distribution principle discussed in proposed Sec.  190.00(c)(5), in
    that any payment in excess of a customer’s funded balance would be to
    the detriment of other customers.
        Proposed Sec.  190.04(b)(1)(iii) would make some minor non-
    substantive clarifications of the language in current Sec. 
    190.02(g)(1)(ii), but retains the limitation that the trustee may not
    make payments on behalf of non-public customers of the debtor from
    funds that are segregated for the benefit of public customers.
        Proposed Sec.  190.04(b)(1)(iv)-(v) would expand and clarify
    current Sec.  190.02(g)(1)(iii) 85 to provide that margin must be
    used consistent with the requirements of section 4d of the CEA.86
    First, proposed Sec.  190.04(b)(1)(iv) would provide that, if the
    trustee receives payments from a customer in response to a margin call,
    then to the extent within the trustee’s control,87 the trustee must
    use such payments to make margin payments for the open commodity
    contract positions of such customer. Second, proposed Sec. 
    190.04(b)(1)(v) would provide that the trustee may not use payments
    received from one public customer to meet the margin (or any other)
    obligations of any other customer. Given the restriction in paragraph
    (b)(1)(v), it may be impracticable for a trustee to follow paragraph
    (b)(1)(iv); in such a situation, the trustee would hold onto the funds
    received in response to a margin payment and such funds would be
    credited to the account of the customer that made the payment.88
    —————————————————————————

        85 Current Sec.  190.02(g)(1)(iii) provides that “The trustee
    must make margin payments if payments of margin are received from
    customers after bankruptcy in response to margin calls . . . .”
        86 See 7 U.S.C. 6d.
        87 The Commission’s proposal to use the phrase “to the extent
    within the trustee’s control” would recognize the reality that
    certain accounts are held on an omnibus basis. See discussion of
    proposed Sec.  190.04(b)(1)(i) above.
        88 See proposed Sec.  190.08(c)(1)(ii).
    —————————————————————————

        Proposed Sec.  190.04(b)(1)(vi) has its analog in current Sec. 
    190.02(g)(1)(iv), but would build upon the concept in the current
    regulation. Current Sec.  190.02(g)(1)(iv) provides that no payments
    need be made to restore initial margin, thus noting that such payments
    are not required but implicitly allowing such payments to be made.
    Proposed Sec.  190.04(b)(1)(vi) would explicate this in more detail and
    provides more comprehensive guidance to the trustee about when such
    payments may be made. Specifically, proposed Sec.  190.04(b)(1)(vi)
    would provide that, in the event that the funds segregated for the
    benefit of public customers in a particular account class exceed the
    aggregate net equity claims for all customers in that account class,
    the trustee is permitted to use such funds to meet the margin
    obligations for any public customer in such account class whose account
    is under-margined, but not in deficit, and sets conditions around such
    use.
        In proposed Sec.  190.04(b)(2), the Commission would update
    existing Sec.  190.02(g)(2), which concerns margin calls made by a
    trustee with respect to under-margined accounts of public customers.
    The Commission would remove the current requirement that the trustee
    issue such margin calls, by replacing the term “must issue margin
    calls” with “may issue a margin call,” in light of the possibility
    that the trustee will determine it impracticable or inefficient to do
    so. Current Sec.  190.02(g)(2), which sets up a retail-level analysis
    on issuing mandatory margin calls based on the funded balance of the
    account, is based on a model of the FCM continuing in business. The
    proposed changes, as reflected in proposed Sec.  190.04(b)(2), would
    recognize that an FCM in bankruptcy will be operated in crisis mode,
    and may be pending wholesale transfer or liquidation of open
    positions.89 Therefore, the Commission would allow for the
    possibility that the trustee may issue margin calls. The specification
    of highly prescriptive conditions for issuing such calls is no longer
    appropriate, given the Commission’s proposal that whether or not to
    make such a call is now based on the trustee’s discretion.
    —————————————————————————

        89 See generally major theme 7 discussed in section I.B above.
    —————————————————————————

        Proposed Sec.  190.04(b)(3) is largely similar to current Sec. 
    190.02(g)(3), with updated cross-references. The Commission would
    retain in proposed Sec.  190.04(b)(3) the important concept that margin
    payments made by a customer in response to a trustee’s margin call are
    fully credited to the customer’s funded balance. Since these post-
    petition margin payments by the customer are fully counted toward the
    customer’s net allowed equity claims, under proposed Sec. 
    190.04(b)(3), they would not be subject to pro rata distribution (in
    contrast to the treatment of the debtor commodity broker’s pre-petition
    obligations to customers).
        Proposed Sec.  190.04(b)(4) addresses the trustee’s obligation to
    liquidate certain open commodity contracts, in particular, those in
    deficit and those where the customer has failed promptly to meet a
    margin call. It would be a combination of current Sec. Sec. 
    190.03(b)(1) and (2) and 190.04(e)(4).
        During business as usual, an FCM is required to cover, at all
    times, any customer accounts in deficit (i.e., those with debit
    balances) with its own capital.90 The FCM is also required to cover
    with its own capital any undermargined amounts in customer accounts
    each day by no later than the Residual Interest Deadline.91 These
    ongoing requirements are intended to protect other customers with
    positive account balances.
    —————————————————————————

        90 See, e.g., Sec. Sec.  1.22(i)(4), 1.23(a)(2).
        91 See, e.g., Sec.  1.22(c)(3).
    —————————————————————————

        An FCM in bankruptcy will generally not have capital available to
    protect other customers by covering these obligations; rather, any loss
    suffered by customers whose accounts are in deficit will be at the risk
    of those other customers.92 Proposed Sec.  190.04(b)(4) is

    [[Page 36018]]

    intended to mitigate the risk to those other customers by directing the
    trustee to liquidate such accounts.
    —————————————————————————

        92 While the trustee may seek to recover any debit balance
    from a customer, see proposed Sec.  190.09(a)(1)(ii)(E), proposed
    Sec.  190.04(b)(4) proceeds from the conservative assumption that
    such efforts will be unsuccessful.
    —————————————————————————

        In light of the importance of mitigating this fellow-customer risk,
    proposed Sec.  190.04(b)(4) would, in contrast to many of the other
    proposed changes to part 190, act to cabin the trustee’s discretion.
    Specifically, it would first provide that the trustee shall, as soon as
    practicable, liquidate all open commodity contract accounts in any
    commodity contract account (i) that is in deficit; (ii) for which any
    mark-to-market calculation would result in a deficit; or (iii) for
    which the customer fails to meet a margin call made by the trustee
    within a reasonable time. This requirement, in part, would reflect
    current Sec.  190.03(b)(1) and (2). Pursuant to current Sec. 
    190.03(b)(1), a trustee must liquidate open commodity contracts if
    “any payment of margin would result in a deficit in the account in
    which they are held.” 93 In proposed Sec.  190.04(b)(4), the
    Commission would add a requirement to liquidate “all open commodity
    contracts in any commodity contract account that is in deficit.” The
    existing language applies to an account that is on the threshold of
    deficit; the proposed revised language would clarify that the provision
    also applies to an account that is already in deficit. Moreover, the
    change from “payment of margin” to “mark-to-market” calculation
    addresses the case where the trustee is aware, based on mark-to-market
    calculations, that the account is in deficit. In order to protect other
    customers more effectively, the proposed regulation would direct the
    trustee to begin the liquidation process immediately upon gaining that
    awareness, rather than delaying until the time when a margin payment is
    due.
    —————————————————————————

        93 An account is in deficit if the balance is negative (i.e.,
    the customer owes the debtor instead of the reverse). An account can
    be undermargined but not in deficit (if the balance is positive, but
    less than the amount of required margin). For example, a customer
    may have a margin requirement of 100 and an equity balance of 80.
    Such customer is undermargined by 20, but is not in deficit, because
    the liquidation value of the commodity contracts is positive.
    —————————————————————————

        Proposed Sec.  190.04(b)(4) further would provide that, absent
    exigent circumstances or unless otherwise provided, a reasonable time
    for meeting margin calls made by a trustee shall be one hour or such
    greater period not to exceed one business day, as determined by the
    trustee.94 This proposed language is largely reflective of current
    Sec.  190.04(e)(4), though it would add the concept of “exigent
    circumstances” as a new exception to the general and long-established
    rule that a minimum of one hour is sufficient notice for a trustee to
    liquidate an undermargined account. This revision would provide the
    trustee with the discretion to deem a period of less than one hour as
    sufficient notice to liquidate an undermargined account if the
    “exigent circumstances” so require.
    —————————————————————————

        94 See Morgan Stanley & Co. Inc. v. Peak Ridge Master SPC
    Ltd., 930 F.Supp.2d 532, 539-540 (S.D.N.Y. 2013) (Morgan Stanley, in
    its business discretion, determined Peak Ridge’s account had assumed
    overly risky positions, necessitating an increase in the margin
    requirement and giving Peak Ridge a limited amount of time to bring
    the account into compliance. “Courts have held that as little as
    one hour is sufficient notice under similar circumstances.”). See
    also Capital Options Invs., Inc. v. Goldberg Bros. Commodities,
    Inc., 958 F.2d 186, 190 (7th Cir. 1992) (“One-hour notice to post
    additional margin . . . is reasonable where a contract specifically
    provides for margin calls on options at any time and without
    notice.”); Prudential-Bache Sec., Inc. v. Stricklin, 890 F.2d 704,
    706-07 (4th Cir. 1989) (rejecting a claim that 24-hour notice, which
    the broker normally gave to customers, was necessary before broker
    could liquidate an undermargined account and upholding notice of one
    hour as in accordance with the customer agreement); Modern Settings,
    Inc. v. Prudential-Bache Sec. Inc., 936 F.2d 640, 645 (2d Cir. 1991)
    (upholding a provision of a customer agreement allowing Defendant-
    broker to liquidate an undermargined account without notice).
    —————————————————————————

        The Commission would delete current Sec.  190.03(b)(3), which would
    permit the trustee to liquidate open commodity contracts where the
    trustee has received no customer instructions with respect to such
    contracts by the sixth calendar day following the entry of the order
    for relief. This change is being proposed as part of a move from a
    model where the trustee receives and complies with instructions from
    individual customers to a model–that reflects actual practice in
    commodity broker bankruptcies in recent decades–where the trustee
    transfers as many open commodity contracts as possible.95
    —————————————————————————

        95 Cf. major theme 7 in section I.B above.
    —————————————————————————

        Proposed Sec.  190.04(b)(5) is new, and would provide guidance to
    the trustee in assigning liquidating positions 96 to the debtor FCM’s
    customers when only a portion of the open commodity contracts in an
    omnibus account are liquidated. It is intended to protect the customer
    account as a whole, in light of the fact that any losses which cause a
    customer account to go into deficit are, as discussed in connection
    with proposed Sec.  190.04(b)(4) above, at the risk of other customers.
    To mitigate the risk of such losses, the provision would establish a
    preference, subject to the trustee’s exercise of reasonable business
    judgment, for assigning liquidating transactions to individual customer
    accounts in a risk-reducing manner. Specifically, the trustee should
    endeavor to assign such liquidating transactions first, in a risk-
    reducing manner, to commodity contract accounts that are in deficit;
    second, in a risk-reducing manner, to commodity contract accounts that
    are under-margined; 97 and finally to liquidate any remaining open
    commodity contracts. Where there are multiple accounts in any of these
    groups, the trustee would be instructed to, to the extent practicable,
    allocate such liquidating transactions pro rata. The proposed section
    would explain that the term “risk-reducing manner” is measured by the
    margin methodology and parameters followed by the DCO at which such
    contracts are cleared. Specifically, where allocating a transaction to
    a particular customer account reduces the margin requirement for that
    account, such an allocation is “risk-reducing.”
    —————————————————————————

        96 A liquidating position or transaction is one that offsets a
    position held by the debtor, in whole or in part. Thus, if the
    debtor has three long March ’21 corn contracts, then three (or two,
    or one) short March ’21 corn contracts would be a liquidating
    transaction.
        97 And thus are next at risk of going into deficit.
    —————————————————————————

        Proposed Sec.  190.04(c) directs the trustee to use its best
    efforts to avoid delivery obligations concerning contracts held through
    the debtor FCM by transferring or liquidating such contracts before
    they move into delivery position. It has its analog in current Sec. 
    190.03(b)(5) and would incorporate a portion of current Sec. 
    190.02(f)(1)(ii). Current Sec.  190.03(b)(5) instructs the trustee to
    liquidate promptly and in an orderly manner commodity contracts that
    are not settled in cash (implicitly, those that settle via physical
    delivery of a commodity) where the contract would remain open beyond
    the earlier of (i) the last day of trading or (ii) the first day on
    which notice of delivery may be tendered–that is, where the contract
    would move into delivery position. Proposed Sec.  190.04(c) would have
    the same purpose, but would use more explicit language regarding
    physical delivery, referring to “any open commodity contract that
    settles upon expiration or exercise via the making or taking of
    delivery of a commodity,” and moving into the delivery position. In
    addition, proposed Sec.  190.04(c) would expand on current Sec. 
    190.03(b)(5) to include explicit reference to how options on
    commodities move into delivery position, some of which is taken from
    current Sec.  190.02(f)(1)(ii).
        Proposed Sec.  190.04(d) is derived from current Sec. Sec. 
    190.02(f) and 190.04(d). Specifically, proposed Sec.  190.04(d) would
    set forth the categories of commodity contracts and other property held
    by or for the account of a debtor that must be liquidated by the
    trustee in

    [[Page 36019]]

    the market or by book entry offset, promptly and in an orderly
    manner.98
    —————————————————————————

        98 The Commission is proposing three non-substantive changes
    in the header language to proposed Sec.  190.04(d) from that in
    current Sec.  190.02(f): (1) Addition of the phrase “except as
    otherwise set forth in this paragraph (d)” to account for any
    exceptions that are included in the subsections under the header
    language; (2) addition of cross-references to proposed Sec. 
    190.04(e) when discussing liquidation, as that provision contains
    instructions on how to effect liquidation; and (3) deletion of the
    phrase “subject to limit moves and to applicable procedures under
    the Bankruptcy Code.”
    —————————————————————————

        Importantly, the Commission would retain the requirement, present
    in the header language to current Sec.  190.02(f), that the trustee
    effect such liquidation “in an orderly manner.” This is to recognize
    that any factor which, in the trustee’s discretion, makes it imprudent
    to liquidate a position at a particular point in time would contribute
    to the trustee’s judgment as to what constitutes liquidation “in an
    orderly manner.”
        Proposed Sec.  190.04(d)(1) derives from current Sec. 
    190.02(f)(1), and would provide that all open commodity contracts must
    be liquidated, subject to two exceptions: (1) Commodity contracts that
    are specifically identifiable property and are subject to customer
    instructions to transfer as provided in proposed Sec.  190.03(c)(2);
    and (2) open commodity contract positions that are in a delivery
    position.99 In the former case (specifically identifiable property),
    proposed Sec.  190.04(d)(1) would revise the language of current Sec. 
    190.02(f)(1)(ii) to add references to the provisions of proposed Sec. 
    190.03(c)(2) (concerning the trustee’s option to treat hedging accounts
    as specifically identifiable property) and proposed Sec.  190.09(d)(2)
    (concerning the payments that customers on whose behalf specifically
    identifiable commodity contracts will be transferred must make to
    ensure that they do not receive property in excess of their pro rata
    share).100 The latter exception, for open commodity contract
    positions that are in a delivery position is new, and would provide
    that such positions should be treated in accordance with proposed Sec. 
    190.06, which concerns delivery.101
    —————————————————————————

        99 Proposed Sec.  190.04(d)(1) would also delete the reference
    in current Sec.  190.02(f)(1)(i) to dealer option contracts since
    such term is no longer used.
        100 As noted above in the discussion of proposed Sec. 
    190.04(c), part of current Sec.  190.02(f)(1)(ii) would be
    incorporated into proposed Sec.  190.04(c), and therefore would not
    appear in proposed Sec.  190.04(d)(1).
        101 As noted in section II.A.1 above in the discussion of
    proposed Sec.  190.00(c)(6), a delivery default could have a
    disruptive effect on the cash market for the commodity and could
    adversely impact the parties to the transaction.
    —————————————————————————

        Proposed Sec.  190.04(d)(2) would describe when specifically
    identifiable property, other than open commodity contracts or physical
    delivery property must be liquidated. This provision derives from
    current Sec.  190.02(f)(2), but would contain a number of revisions.
        First, the proposed provision would apply to specifically
    identifiable property, other than open commodity contracts or physical
    delivery property, while the current regulation applies only to
    specifically identifiable property other than open commodity contracts.
    This change is intended to provide the trustee with discretion to avoid
    interfering with the physical delivery process.
        Second, while the current regulation would require liquidation of
    such property if the fair market value of the property drops below 90%
    of its value on the date of the entry of the order for relief,102 the
    proposed regulation (in paragraph (d)(2)(i)) changes that figure to 75%
    of the fair market value, in order to provide greater discretion to the
    trustee to forego or postpone liquidation in appropriate cases.
    —————————————————————————

        102 See current Sec.  190.02(f)(2)(i).
    —————————————————————————

        Third, the proposed regulation (in paragraph (d)(2)(ii)) would add
    an additional condition that would require liquidation where failure to
    liquidate the specifically identifiable property may result in a
    deficit balance in the applicable customer account, which corresponds
    to the general policy of liquidating any accounts that are in deficit.
        Lastly, the proposed regulation (in paragraph (d)(2)(iii)), while
    similar to current Sec.  190.02(f)(2)(ii), would include updated cross-
    references to the provisions in proposed part 190 that discuss the
    return of specifically identifiable property.
        Proposed Sec.  190.04(d)(3) is new, and is intended to codify the
    Commission’s longstanding policies of pro rata distribution and
    equitable treatment of customers in bankruptcy, as described in Sec. 
    190.00(c)(5) above, as applied to letters of credit posted as
    margin.103 Accordingly, customers who post letters of credit as
    margin would be treated no differently than other customers and thus
    would suffer the same pro rata loss.
    —————————————————————————

        103 See, e.g., 48 FR 8716, 8718-19 (March 1, 1983) (Commission
    intends “to assure that customers using a letter of credit to meet
    original margin obligations would be treated no differently than
    customers depositing other forms of non-cash margin or customers
    with excess cash margin deposits. If letters of credit are treated
    differently than Treasury bills or other non-cash deposits, there
    would be a substantial incentive to use and accept such letters of
    credit as margin as they would be a means of avoiding the pro rata
    distribution of margin funds, contrary to the intent of the
    [Bankruptcy] Code [11 U.S.C. 766].”)
    —————————————————————————

        The implementation of this policy in current Sec. 
    190.08(a)(1)(i)(E) was challenged in an adversary proceeding in the MF
    Global Bankruptcy; 104 the codifications of this policy in proposed
    Sec. Sec.  190.00(c)(5) (clarifying policy), 190.04(d)(3) (treatment in
    bankruptcy), and 190.10(d) (treatment during business as usual) are
    intended to effectively implement the policy and to forestall any
    future challenge.
    —————————————————————————

        104 See ConocoPhillips v. Giddens, No. 12 Civ. 6014, 2012 WL
    4757866 (S.D.N.Y. 2012)
    —————————————————————————

        Proposed paragraph (d)(3) would provide that the trustee may
    request that such a customer deliver substitute customer property with
    respect to any letter of credit received, acquired or held to margin,
    guarantee, secure, purchase, or sell a commodity contract. This would
    apply whether the letter of credit is held by the trustee on behalf of
    the debtor’s estate or a DCO or a foreign broker or foreign clearing
    organization, and whether it is held on a pass-through or other basis.
    The amount of the substitute customer property to be posted may be less
    than the full face amount of the letter of credit, in the trustee’s
    discretion, if such lesser amount is sufficient to ensure pro rata
    treatment consistent with proposed Sec. Sec.  190.08 and 190.09. If
    required, the trustee may require the customer to post property equal
    to the full face amount of the letter of credit to ensure pro rata
    treatment. Proposed paragraph (d)(3)(i) would provide that, if such a
    customer fails to provide substitute customer property within a
    reasonable time specified by the trustee, the trustee may draw upon the
    full amount of the letter of credit or any portion thereof.
        Proposed paragraph (d)(3)(ii) would address cases where a letter of
    credit received, acquired or held to margin, guarantee, secure,
    purchase, or sell a commodity contract is not fully drawn upon. The
    trustee would be instructed to treat any portion of the letter of
    credit that is not fully drawn upon as having been distributed to the
    customer. However, the amount treated as having been distributed would
    be reduced by the value of any substitute customer property delivered
    by the customer to the trustee. For example, if the face amount of the
    letter of credit is $1,000,000, the customer delivers $250,000 in
    substitute customer property, and no portion of the letter of credit is
    drawn upon, then the trustee will treat the customer as having received
    a distribution of $750,000. In order to avoid an effective transfer of
    value, due to an expiration on or after the date of the order for
    relief, to the customer who posted the letter of credit, this
    calculation will not be changed due to such an expiration.

    [[Page 36020]]

        Paragraph (d)(3)(iii) would confirm that any proceeds of a letter
    of credit drawn by the trustee, or substitute customer property posted
    by a customer, shall be considered customer property in the account
    class applicable to the original letter of credit.
        Proposed Sec.  190.04(d)(4), which would provide for the
    liquidation of all other property not required to be transferred or
    returned pursuant to customer instructions and which has not been
    liquidated, is derived from current Sec.  190.02(f)(3). Proposed Sec. 
    190.04(d)(4) would except from the liquidation requirement any
    “physical delivery property held for delivery in accordance with the
    provision of” proposed Sec.  190.06, in order to avoid interfering
    with the physical delivery process.
        In proposed Sec.  190.04(e), the Commission would provide details
    regarding the liquidation and valuation of open positions.105 This
    paragraph is derived from current Sec.  190.04(d), subject to a number
    of changes.
    —————————————————————————

        105 In proposed Sec.  190.08(d), the Commission would also
    clarify the process by which customer positions and other customer
    property are valued for purposes of determining the amount of a
    customer’s claim.
    —————————————————————————

        Proposed Sec.  190.04(e)(1)(i), which would describe the process of
    liquidating open commodity contracts when the debtor is a member of a
    clearing organization, is derived from current Sec.  190.04(d)(1)(ii).
    Both the current and the proposed regulations include an emphasis on
    achieving the goal of competitive pricing “to the extent feasible
    under market conditions at the time of liquidation.” Treatment under
    the CEA of clearing organization rules has evolved from a pre-approval
    regime to a primarily self-certification regime. The Commission is of
    the view that the various processes set forth in part 40 of the
    Commission’s regulations (including self-certification under Sec. 
    40.6, voluntary submission for rule approval under Sec.  40.5, and
    Commission review of certain rules of systemically important DCOs under
    Sec.  40.10) are sufficient, and that a separate rule approval process
    for rules regarding settlement price in the context of a bankruptcy is
    no longer necessary. The Commission is accordingly proposing in Sec. 
    190.04(e)(1)(i) to delete the requirement, contained in current Sec. 
    190.04(d)(1)(i), that a clearing organization obtain approval pursuant
    to section 5c(c) of the CEA for its rules regarding liquidation of open
    commodity contracts.
        Proposed Sec.  190.04(e)(1)(i) also would add a provision regarding
    open commodity contracts that are futures or options on futures that
    were established on or subject to the rules of a foreign board of trade
    and cleared by the debtor as a member of a foreign clearing
    organization, providing that such contracts shall by liquidated
    pursuant to the rules of the foreign clearing organization or foreign
    board of trade or, in the absence of such rules, in the manner the
    trustee deems appropriate. This new provision would be analogous to the
    current one, but would additionally extend to cases where the debtor
    FCM is a member of a foreign clearing organization.
        Proposed Sec.  190.04(e)(1)(ii) is new. It would provide
    instructions to the trustee regarding the liquidation of open commodity
    contracts where the debtor is not a member of a DCO or foreign clearing
    organization, but instead clears through one or more accounts
    established with an FCM or a foreign futures intermediary. In such a
    case, the proposed regulation would provide that the trustee shall use
    commercially reasonable efforts to liquidate the open commodity
    contracts to achieve competitive pricing, to the extent feasible under
    market conditions at the time of liquidation. The Commission would add
    this provision in order to account for those circumstances where the
    trustee must liquidate open commodity contracts for a debtor that is
    not a clearing member.
        As with proposed Sec.  190.04(e)(1)(i), the Commission would delete
    the rule approval requirement in proposed Sec.  190.04(e)(2) for the
    same reasons stated above. Proposed Sec.  190.04(e)(2) is derived from
    current Sec.  190.04(d)(1)(ii). The proposed regulation would provide
    for a trustee or clearing organization to apply to the Commission for
    permission to liquidate open commodity contracts by book entry. In such
    a case, the settlement price for such commodity contracts shall be
    determined by the clearing organization in accordance with its rules,
    which shall be designed to establish, to the extent feasible under
    market conditions at the time of liquidation, such settlement prices in
    a competitive manner.
        Proposed Sec.  190.04(e)(3) is new. It would recognize that an FCM
    or foreign futures intermediary through which a debtor FCM carries open
    commodity contracts will generally have enforceable contractual rights
    to liquidate such commodity contracts. The proposed rule would confirm
    that the upstream intermediary may exercise such rights. However, there
    would be a proviso: The liquidating FCM or foreign futures intermediary
    shall use commercially reasonable efforts to liquidate the open
    commodity contracts to achieve competitive pricing, to the extent
    feasible under market conditions at the time of liquidation and subject
    to any rules or orders of the relevant clearing organization, foreign
    clearing organization, designated contract market, swap execution
    facility or foreign board of trade governing its liquidation of such
    open commodity contracts.
        If the liquidating FCM or foreign futures intermediary fails to do
    so, the trustee may seek damages reflecting the difference in price(s)
    resulting from such failure. However, such damages are the trustee’s
    sole available remedy; the proposed regulation makes clear that “[i]n
    no event shall any such liquidation be voided.”
        Proposed Sec.  190.04(e)(4)(i) and (ii) derive from current Sec. 
    190.04(d)(2) and (3), respectively, with some minor non-substantive
    language changes and updated cross-references.
        Proposed Sec.  190.04(f) derives from current Sec.  190.04(e)(5).
    Proposed Sec.  190.04(f) would contain only minor non-substantive
    changes from the current regulation text, including (1) a cross-
    reference to the liquidation provisions in proposed Sec.  190.04(d) and
    (e), and (2) a clarification that the provision is referring to
    commodity contracts that are long option contracts, rather than to long
    option contracts more generally.
        The Commission requests comment with respect to all aspects of
    proposed Sec.  190.04. Specifically, do the revisions create any
    unintended conflicts with customer protection regulations set forth in
    parts 1, 22, and 30? If so, how may such conflicts be resolved? Are any
    of the proposed clarification changes (here or elsewhere) likely to
    create unintended consequences? If so, how might those be avoided or
    mitigated?
        The Commission specifically seeks comment on whether the revised
    approach in proposed Sec.  190.04(b)(4) regarding the required
    liquidation of certain open commodity contract accounts provides the
    trustee with an appropriate amount of discretion and is practicable.
    Given the level of discretion provided, are the trustee’s choices
    likely to be challenged by customers who believe they did not benefit
    from those decisions? Could such challenges materially slow down the
    distribution of customer property relative to a context where the
    trustee was granted less discretion? Also, is the approach set forth in
    proposed Sec.  190.04(b)(5), regarding the assignment of liquidating
    positions to debtor FCM customers in a “risk-reducing manner” when
    only a portion of the open commodity contracts in an omnibus account
    are liquidated, practicable? The

    [[Page 36021]]

    Commission also seeks comment in particular on the treatment of letters
    of credit in bankruptcy, as set forth in proposed Sec.  190.04(e).
    3. Regulation Sec.  190.05: Operation of the Debtor’s Estate–General
        The Commission would revise parts of current Sec.  190.04 in
    proposed Sec.  190.05, and would add two new provisions to (1) require
    a trustee to use all reasonable efforts to continue to issue account
    statements for customer accounts holding open commodity contracts or
    other property, and (2) clarify the trustee’s obligations with respect
    to residual interest.
        Proposed Sec.  190.05(a) is derived from current Sec.  190.04(a).
    Given that an FCM bankruptcy will likely be a fast-paced situation
    requiring the trustee to make decisions with little time for
    consideration, the Commission recognizes that there may be
    circumstances under which strict compliance with the CEA and the
    regulations thereunder may not be practicable. Accordingly, while
    current Sec.  190.04(a) states that the trustee “shall” comply with
    all provisions of the CEA and of the regulations thereunder as if it
    were the debtor, the Commission would amend the language in proposed
    Sec.  190.05(a) to state that the trustee “shall use reasonable
    efforts to comply” with all provisions of the CEA and of the
    regulations thereunder as if it were the debtor. This change is
    intended to provide the trustee some flexibility in making decisions in
    an emergency bankruptcy situation, subject, of course, to the
    requirements of the Bankruptcy Code.
        Proposed Sec.  190.05(b) is derived from current Sec.  190.04(b).
    In revising this provision, the Commission’s objective is to provide
    the bankruptcy trustee with the latitude to act reasonably given the
    circumstances they are confronted with, recognizing that information
    may be more reliable and/or accurate in some insolvency situations than
    in others and permitting an approach that, to an appropriate extent,
    favors cost effectiveness and promptness over precision.106 Whereas
    current Sec.  190.04(b) provides that a trustee “must” compute a
    funded balance for each customer account which contains open commodity
    contracts as of the close of each business day, proposed Sec. 
    190.05(b) would require that trustee to use “reasonable efforts” to
    compute a funded balance for each customer account that contains open
    commodity contracts or other property as of the close of business each
    business day until such open commodity contracts and other property in
    such account has been transferred or liquidated. Proposed Sec. 
    190.05(b) further would provide that such computations “shall be as
    accurate as reasonably practicable under the circumstances, including
    the reliability and availability of information.”
    —————————————————————————

        106 See major theme 7.c discussed in section I.B above.
    —————————————————————————

        In addition, proposed Sec.  190.05(b) would increase the scope of
    customer accounts for which the bankruptcy trustee is obligated to
    compute a funded balance to accounts that contain open commodity
    contracts or other property, as opposed to just accounts that contain
    open commodity contracts. In the Commission’s view, this broadened
    scope is appropriate; there is no reason to exclude customer accounts
    that contain only property (the value of which may change) from the
    scope of those for which bankruptcy trustees must compute a daily
    funded balance. Moreover, proposed Sec.  190.05(b) would revise the
    length of time the trustee has the obligation to compute the funded
    balance of customer accounts. In current Sec.  190.04(b), the trustee
    must compute a funded balance for certain customer accounts “until the
    final liquidation date.” In proposed Sec.  190.05(b), however, the
    trustee must compute a funded balance only until the open commodity
    contracts and other property in the account have been transferred or
    liquidated. This change ties the computation requirement to each
    specific account, such that a bankruptcy trustee is not required to
    continue to compute the funded balance of customer accounts that do not
    contain any open commodity contracts or other property. Lastly, while
    current Sec.  190.04(b) required the computation to be completed by
    noon on the next business day, the Commission does not believe that a
    noon deadline is crucial in a bankruptcy context (as it is with respect
    to an FCM conducting ongoing daily business 107); proposed Sec. 
    190.05(b) therefore would not contain a specific deadline. Of course,
    such computation would inherently need to be accomplished prior to
    performing any action where knowledge of funded balances is essential,
    such as transfer of accounts or property.
    —————————————————————————

        107 See, e.g., Sec.  1.32(d).
    —————————————————————————

        Proposed Sec.  190.05(c) is derived from current Sec.  190.04(c).
        Proposed Sec.  190.05(c)(1) concerns record retention, and is
    derived from current Sec.  190.04(c)(1). It is intended to be more
    comprehensive than the current provision, and thus would expand the
    records referred to from “computations required by this part” to
    “records required under this chapter to be maintained by the debtor,
    including records of the computations required by this part.” It is
    also, on the other hand, intended to enable the trustee to mitigate the
    expenses of record retention by permitting them to end their record
    retention responsibilities effectively when they close the bankruptcy
    case. The proposed provision would thus reduce the time that records
    are required to be retained from “the greater of the period required
    by Sec.  1.31 of this chapter or for a period of one year after the
    close of the bankruptcy proceeding for which they were compiled” to
    “until such time as the debtor’s case is closed.”
        Proposed Sec.  190.05(c)(2) would simplify the corresponding
    portion of current Sec.  190.04(c)(2) by omitting the requirement that
    the records required in proposed Sec.  190.05(c)(1) be available to the
    Court and parties in interest. It would retain the requirement that
    such records be available to the Commission and the United States
    Department of Justice. A court will generally not itself look at
    records, and any parties in interest should have access to records
    under the discovery provisions of the Federal Rules of Bankruptcy
    Procedure and the Federal Rules of Civil Procedure, as applicable.
        Proposed Sec.  190.05(d) is new. It is intended to facilitate the
    ability of customers of the bankrupt FCM with open commodity contracts
    or property to keep track of such open commodity contracts or property
    even during insolvency, and promptly to make them aware of the
    specifics of the liquidation or transfer of such contracts or property.
    It would require the trustee to use all reasonable efforts to continue
    to issue account statements with respect to any customer for whose
    account open commodity contracts or other property is held that has not
    been liquidated or transferred. The provision also would require the
    trustee to issue an account statement reflecting any liquidation or
    transfer that has taken place with respect to a customer account
    promptly after such liquidation or transfer has occurred.
        Proposed Sec.  190.05(e)(1) concerns disbursements to customers. It
    is derived from current Sec.  190.04(e)(2). The Commission is proposing
    to change this provision to reflect the policy preference to transfer
    as many public customer positions as practicable in the event of an FCM
    insolvency.108

    [[Page 36022]]

    Proposed Sec.  190.05(e)(1) would provide that a trustee needs court
    approval to make disbursements to customers, but (in contrast to the
    current regulation) would specifically carve out disbursements made in
    connection with a transfer of customer property made in accordance with
    proposed Sec.  190.07. The Commission notes, however, that specifically
    carving out transfers made in accordance with proposed Sec.  190.07
    from requiring court approval does not detract from the trustee’s
    ability to, in their discretion, nonetheless seek and obtain court
    approval for certain transfers of customer property. The Commission
    recognizes that there is an inherent tension between distributing to
    public customers as much customer property as possible from the
    debtor’s estate, as quickly as possible, and ensuring accuracy in
    distribution, and believes that proposed Sec.  190.05(e)(1) strikes the
    right balance between these competing objectives.109
    —————————————————————————

        108 The Commission notes that current Sec.  190.08(d) provides
    for the return of specifically identifiable property other than
    commodity contracts under certain circumstances (namely, where the
    customer makes good any pro rata loss related to that property)
    without court approval; however, the Commission would delete this
    provision in favor of allowing transfers without court approval for
    the reasons stated above.
        109 The concept of prioritizing cost effectiveness and
    promptness over precision is discussed in detail in major theme 7.c
    in section I.B above and in overarching concept three in the cost-
    benefit considerations, section IV.C.3 below.
    —————————————————————————

        Proposed Sec.  190.05(e)(2) is derived from current Sec. 
    190.04(e)(3). It concerns how a bankruptcy trustee may invest the
    proceeds 110 from the liquidation of open commodity contracts and
    specifically identifiable property, and other customer property.
    Proposed Sec.  190.05(e)(2) would retain much of current Sec. 
    190.04(e)(3), although the Commission would expand the provision in
    current Sec.  190.04(e)(3) permitting the bankruptcy trustee to
    “invest any customer equity in accounts which remain open in
    accordance with Sec.  190.03” to permit the investment of “any other
    customer property,” albeit continuing to strictly limit the
    permissible investments to obligations of, or fully guaranteed by, the
    United States, and limiting the location of permissible depositories to
    those located in the United States or its territories or possessions.
    —————————————————————————

        110 Proposed Sec.  190.05(e)(2) would use the term
    “proceeds” rather than the term “equity,” which is used in
    current Sec.  190.04(e)(3). This would be simply a change in wording
    and would not be meant to be a substantive difference.
    —————————————————————————

        Proposed Sec.  190.05(f) is new. It would require a bankruptcy
    trustee to apply the residual interest provisions contained in Sec. 
    1.11 “in a manner appropriate to the context of their responsibilities
    as a bankruptcy trustee” and “in light of the existence of a surplus
    or deficit in customer property available to pay customer claims.” The
    purpose of the residual interest provisions is to have the FCM maintain
    a sufficient buffer in segregated funds “to reasonably ensure that the
    [FCM] . . . remains in compliance with the segregated funds
    requirements at all times.” 111
    —————————————————————————

        111 Section 1.11(e)(3)(i)(D).
        The ABA Submission would instead have provided:
        Residual interest. The trustee is not required to transfer cash,
    securities, or other property of the debtor into a segregated
    account to maintain the debtor’s ongoing compliance with its
    targeted residual amount obligations pursuant to Sec.  1.11 of this
    chapter and the debtor’s residual interest policies adopted
    thereunder or its related obligations to cover debit balances or
    under-margined amounts as provided in Sec. Sec.  1.22, 22.2 or 30.7
    of this chapter; provided, however, that any property not segregated
    under this exception shall nonetheless constitute customer property
    as provided in Sec.  190.09(a)(1).
        The ABA Cover Note explains that “It seems impractical to
    require the trustee to continue to assure that funds of the debtor
    FCM are transferred into segregation to meet the FCM’s top up
    obligations after the order for relief.” Id. at 15.
        For the reasons explained in the text, the Commission is instead
    proposing to require the trustee to apply the residual interest
    provisions, but on a modified basis.
    —————————————————————————

        In the Commission’s view, the residual interest provisions
    contained in Sec.  1.11 remain important, even in bankruptcy, in order
    to facilitate the goal of having each customer of the debtor receive in
    distributions from the debtor’s estate all that the customer is
    entitled to, and therefore a trustee should be obligated to continue to
    apply such provisions, as appropriate, during the course of an FCM
    bankruptcy proceeding.
        The context of the trustee’s responsibilities–to wind down
    operations, and to transfer or liquidate positions and assets–will
    have a significant impact on how the trustee should apply the residual
    interest provisions. The references to a surplus or deficit in customer
    property in proposed Sec.  190.05(f) are meant to apply the residual
    interest provisions to the bankruptcy context. Specifically, the
    Commission expects that, to the extent there is a surplus of segregated
    customer funds in a particular account class, a trustee would apply the
    residual interest provisions to minimize the risk that there could be a
    deficit and, to the extent there is a deficit of segregated customer
    funds in a particular account class, the trustee would apply the
    residual interest provisions to minimize such deficit and to promote
    the fair distribution of customer property consistent with the pro rata
    principle.
        The Commission requests comment with respect to all aspects of
    proposed Sec.  190.05. Specifically, the Commission seeks comment on
    the practicability of the proposed requirements in proposed Sec. 
    190.05(d) regarding the issuance of account statements. The Commission
    also requests comment on the practicability and appropriateness of
    Sec.  190.05(f), which proposes to require the application of the
    residual interest provisions set forth in Sec.  1.11 in order to
    minimize risks of deficit of customer property during bankruptcy.
    4. Regulation Sec.  190.06: Making and Taking Delivery Under Commodity
    Contracts
        The issues concerning delivery in bankruptcy are discussed in some
    detail in proposed Sec.  190.00(c)(6).
        As discussed above,112 proposed Sec.  190.04(c) directs the
    trustee to use its best efforts to avoid delivery obligations
    concerning contracts held through the debtor FCM by transferring or
    liquidating such contracts before they move into delivery position.
    Where the trustee is unable to do so, proposed Sec.  190.06(a)(2),
    discussed below, would direct the trustee to use reasonable efforts to
    permit the relevant customer to make or take delivery outside the
    administration of the debtor’s estate. Where that is not practicable,
    proposed Sec.  190.06(a)(3) would address delivery as part of the
    administration of the debtor’s estate. Proposed Sec.  190.06(a)(4) and
    (5) discuss, respectively, issues relating to deliveries in a
    securities account and in a house account, while proposed Sec. 
    190.06(b) addresses the issues concerning special account class
    provisions for delivery accounts.113
    —————————————————————————

        112 Section II.B.2.
        113 These issues are also addressed in the definitions of
    account class, delivery account class, cash delivery property and
    physical delivery property, discussed in section II.A.2 (Sec. 
    190.01 (definitions)).
    —————————————————————————

        In proposed Sec.  190.06, the Commission is proposing to make
    significant changes to current Sec.  190.05 regarding making and taking
    deliveries on commodity contracts to provide more specificity and to
    reflect current delivery practices. Generally, open positions may get
    caught in a delivery position where the parties incur bilateral
    contractual delivery obligations.114 It is important to address
    deliveries to avoid disruption to the cash market for the commodity and
    to avoid adverse consequences to parties that may be relying on
    delivery taking

    [[Page 36023]]

    place in connection with their business operations.
    —————————————————————————

        114 The timing of the entry of the order for relief in a
    subchapter IV proceeding relative to when physical delivery
    contracts move into a delivery positions will generally determine
    whether a delivery issue may arise. Additionally, during business as
    usual, market participants typically offset contracts before
    incurring delivery obligations.
    —————————————————————————

        The current delivery provisions largely reflect the delivery
    practices at the time current part 190 was adopted in 1983. At that
    time, delivery was effected largely by tendering paper warehouse
    receipts or certificates. In contrast, most deliverable title documents
    today are held and transferred in electronic form, typically with the
    clearing organization serving as the central depository for such
    instruments. Under the terms of some contracts (such as energy futures)
    the party with the contractual obligation to make delivery will
    physically transfer a tangible commodity to meet its obligations.115
    In other cases, intangible commodities may be delivered, including
    virtual currencies.
    —————————————————————————

        115 See ABA Cover Note at 15.
    —————————————————————————

        As noted previously, in the definitions section (proposed Sec. 
    190.01), the Commission is proposing to divide the delivery account
    class into physical delivery and cash delivery account classes to
    recognize the differing obligations for the different types of
    delivery.
        The Commission is also proposing to recognize that, consistent with
    current practice, physical deliveries 116 may be effected in
    different types of accounts in proposed Sec.  190.06.117 For example,
    when an FCM has a role in facilitating delivery, deliveries may occur
    via title transfer in a futures account, foreign futures account,
    cleared swaps account, delivery account, or, if the commodity is a
    security, in a securities account.
    —————————————————————————

        116 Current Sec.  190.05 applies to delivery of a physical
    commodity. Proposed Sec.  190.06 would apply to any type of
    commodity that is subject to physical delivery, whether tangible or
    intangible. This would be captured in the definition of physical
    property discussed earlier. Given the different ways in which
    delivery may take place, physical delivery property is not limited
    to property that an FCM holds for or on behalf of a customer in a
    delivery account. For a discussion of those different ways, see the
    third category under the definition of physical delivery property in
    Sec.  190.01 in section II.A.2 above.
        117 See also proposed Sec.  190.10(c).
    —————————————————————————

        Proposed Sec.  190.06(a)(2), which would replace current Sec. 
    190.05(b), addresses delivery made or taken on behalf of a customer
    outside of the administration of the debtor’s estate, (i.e., directly
    between the debtor’s customer and the delivery counterparty assigned by
    the clearing organization). Current Sec.  190.05(b) requires a DCO,
    DCM, or SEF to enact rules that permit parties to make or take delivery
    under a commodity contract outside the debtor’s estate, through
    substitution of the customer for the commodity broker. The Commission
    believes that deliveries should occur in this manner only where
    feasible. Deliveries may not always happen in this manner, as customers
    largely rely on their FCMs to hold physical delivery property on their
    behalf in electronic form.118
    —————————————————————————

        118 The proposed regulation again would delete the requirement
    for registered entity rules to be submitted for approval in
    accordance with section 5c(c) of the Act for reasons discussed in
    proposed Sec.  190.04(e)(1) and (2).
    —————————————————————————

        Thus, proposed Sec.  190.06(a)(2)(i) would direct the trustee to
    use “reasonable efforts” to allow a customer to deliver physical
    delivery property that is held directly by the customer in settlement
    of a commodity contract, and to allow payment in exchange for such
    delivery, to occur outside the debtor’s estate, where the rules of the
    exchange or clearing organization prescribe a process for delivery that
    allows delivery to be fulfilled either (A) in the ordinary course by
    the customer, (B) by substitution of the customer for the commodity
    broker, or (C) through agreement of the buyer and seller to alternative
    delivery procedures. In requiring the trustee to use “reasonable
    efforts,” rather than (as in current Sec.  190.06(a)(1)) “best
    efforts,” to allow a customer to deliver physical property that is
    held directly by the customer and not by the debtor to occur outside
    the administration of the debtor’s estate, the Commission would
    recognize that in the event that the trustee is unable to transfer or
    earlier liquidate the positions, delivery involves a significant degree
    of bespoke administration. Moreover, requiring the trustee’s best
    efforts for delivery might require the trustee to spend more time
    focusing on the needs of a few customers and detract from the trustee’s
    ability to manage the short term challenges of the administration of
    the estate in the days immediately following the filing date.
        Proposed Sec.  190.06(a)(2)(ii) would address the circumstance
    where, while the customer makes physical delivery in satisfaction of a
    commodity contract using property that is outside the administration of
    the estate of the debtor, the customer nonetheless has property held in
    connection with that contract at the debtor (i.e., collateral posted in
    connection with that contract pre-petition). Consistent with existing
    Sec.  190.05(b)(2), the proposed paragraph provides that the property
    held at the debtor becomes part of the customer’s claim, and can only
    be distributed pro rata, despite the customer fulfilling the delivery
    obligation outside the administration of the debtor’s estate.
        Proposed Sec.  190.06(a)(3) would apply when it is not practicable
    to effect delivery outside the estate. The Commission would revise
    current Sec.  190.05(c)(1)-(2) in proposed Sec.  190.06(a)(3) by
    providing additional details for when delivery is made or taken within
    the debtor’s estate. Proposed Sec.  190.06(a)(3) would clarify that
    which was implied and was not addressed in current Sec.  190.5(c)(1)-
    (2). It would contain provisions for the trustee to deliver physical or
    cash delivery property on a customer’s behalf, or return such property
    to the customer so that the customer may fulfill its delivery
    obligation. This regulation would include restrictions designed to
    assure that a customer does not receive (or otherwise benefit from) a
    distribution of customer property (or other use of such property that
    benefits the customer) that exceeds the customer’s pro rata share of
    the relevant customer property pool.
        Proposed Sec.  190.06(a)(4) is new and would recognize that
    delivery may need to be made in a securities account if an open
    commodity contract held in a futures account, foreign futures account,
    or cleared swaps account requires the delivery of securities, and
    property from any of these accounts is transferred to the securities
    account for the purpose of effecting delivery. Nonetheless, the value
    of the property transferred to the securities account must be limited
    to the customer’s funded balance for a commodity contract account, and
    only to the extent that funded balance exceeds (i.e., the surplus over)
    the customer’s minimum margin requirements for that account. Moreover,
    such transfer may not be made if the customer is under-margined or has
    a deficit balance in any other commodity contract accounts.
        Proposed Sec.  190.06(a)(5) is derived from current Sec. 
    190.05(c)(3), with some clarifying rewording. No substantive change is
    intended.
        Proposed Sec.  190.06(b) is new, and would create separate account
    subclasses for physical delivery property held in delivery accounts and
    the proceeds of such physical delivery property separate from cash
    delivery property.119 As noted by the ABA Committee:
    —————————————————————————

        119 See reference to discussion of physical delivery property
    above in proposed Sec.  190.00. In particular, recall that
    “physical delivery property” can include any deliverable
    commodity, and is not limited to commodities that are tangible.

        Customer property held in a delivery account is not subject to
    Commission segregation requirements. Thus, it may be more difficult
    to identify customer property for the delivery account class. Based
    on lessons learned from the MF Global bankruptcy, it appears that
    those challenges are greater for tracing cash. Physical delivery
    property, in particular when held in the form

    [[Page 36024]]

    of electronic title documents as is prevalent today, is more readily
    identifiable and less vulnerable to loss, compared to cash delivery
    property that an FCM may hold in an operating bank account.120
    —————————————————————————

        120 ABA Cover Note at 14. See generally discussion of the
    delivery account class in the discussion of the definition of
    account class in Sec.  190.01 in section II.A.2 (definitions) above.

        For these reasons, the Commission proposal would divide the
    delivery account class into separate physical delivery and cash
    delivery account subclasses, for purposes of pro rata distributions to
    customers in the delivery account class on their net equity claims.
    Proposed Sec.  190.06(b)(1)(i) would provide that the physical delivery
    account class includes physical delivery property held in delivery
    accounts as of the filing date, and the proceeds of any such physical
    delivery property received subsequently (i.e., after the filing date),
    and Sec.  190.06(b)(1)(ii) the cash delivery account class includes
    cash delivery property in delivery accounts as of the filing date,
    along with physical delivery property for which delivery is
    subsequently taken (i.e., after the filing date) on behalf of a
    customer in accordance with proposed Sec.  190.06(a)(3).
        Proposed Sec.  190.06(b)(2) would provide that customer property in
    the cash delivery account class includes cash or cash equivalents that
    are held in an account under a name, or in a manner, that clearly
    indicates that the account holds property for the purpose of making
    payment for taking delivery of a commodity under commodity contracts.
    Customer property in the cash delivery account class would also include
    any other property that is (x) not segregated for the benefit of
    customers in the futures, foreign futures, or cleared swaps account
    classes) and (y) traceable (through, e.g., account statements) as
    having been received after the filing date as part of taking delivery.
        Proposed Sec.  190.06(b)(2) would also provide, conversely, that
    customer property in the physical delivery account class includes cash
    or cash equivalents that are held in an account under a name, or in a
    manner, that clearly indicates that the account holds property received
    in payment for making delivery of a commodity under a commodity
    contract. Customer property in the physical delivery account class
    would also include any other property that is (x) not segregated for
    the benefit of customers in the futures, foreign futures, or cleared
    swaps account classes) and (y) traceable (through, e.g., account
    statements) as having been held for the purpose of making delivery of a
    commodity under a commodity contract, or held as of the filing date as
    a result of taking delivery.
        The Commission requests comment with respect to all aspects of
    proposed Sec.  190.06. In particular, the Commission seeks comment on
    the implications of the proposal in Sec.  190.06(b) to subdivide the
    delivery account class into separate physical delivery and cash
    delivery account subclasses. Are there additional challenges or
    benefits that the Commission has not considered?
    5. Regulation Sec.  190.07: Transfers
        The policy preference for transferring (or “porting”) public
    customer commodity contract positions, as well as all or a portion of
    such customers’ account equity, is discussed in proposed Sec. 
    190.00(c)(4). In proposed Sec.  190.07, the Commission is proposing to
    make changes to current Sec.  190.06 governing transfers.
        Proposed Sec.  190.07(a) introductory text would revise current
    Sec.  190.06(a) introductory text, which sets forth general provisions
    for transfers.
        Proposed Sec.  190.07(a)(1) derives from current Sec. 
    190.06(a)(1), with a few technical changes.
        In proposed Sec.  190.07(a)(2), which derives from current Sec. 
    190.06(a)(2), the Commission would make minor changes to improve
    readability, although no substantive changes are intended. In addition,
    in Sec.  190.07(a)(2), the Commission would delete “or persons which
    are required to be registered as futures commission merchants” because
    such persons are included within the definition of futures commission
    merchants in Sec.  1.3.
        The changes in proposed Sec.  190.07(a)(3) from current Sec. 
    190.06(a)(3) focus on the goal of promoting transfers, but only to the
    extent consistent with good risk management. Specifically, the current
    regulation provides that no clearing organization or other self-
    regulatory organization may adopt, maintain in effect, or enforce rules
    that prevent the acceptance by its members of transfers of open
    commodity contracts and the equity margining or securing of such
    contracts from FCMs with respect to which a petition in bankruptcy has
    been filed, if the transfers have been approved by the Commission. It
    also states that this provision shall not limit the exercise of any
    contractual right of a clearing organization or other registered entity
    to liquidate open commodity contracts.
        In proposed Sec.  190.07(a)(3), the Commission would change the
    word “prevent” to “[i]nterfere with” to focus on the goal of
    promoting transfers consistent with good risk management. Further, the
    Commission would re-word the current regulation and specifically would
    clarify that the regulations do not limit a clearing organization or
    other registered entity’s contractual right adequately to manage risk
    or to liquidate or transfer open commodity contracts.121
    —————————————————————————

        121 See ABA Cover Note at 14 (“recommend[ing] . . .
    [c]larification that the rule does not limit a DCO’s (or other
    registered entity’s) contractual right to liquidate or transfer open
    commodity contracts.”) Separately, the Commission would delete
    current Sec.  190.06(b) regarding notice to the Commission regarding
    an intention to transfer commodity contracts held by or for a
    commodity broker from or for the account of a customer to another
    person registered as an FCM after a bankruptcy petition has been
    filed. In the Commission’s view, this provision would be duplicative
    of the notice provision in proposed Sec.  190.03(b)(2) and therefore
    would be unnecessary.
    —————————————————————————

        Proposed Sec.  190.07(b) introductory text would revise current
    Sec.  190.06(c), regarding requirements for transferees. In proposed
    Sec.  190.07(b)(1), the Commission would clarify current Sec. 
    190.06(c)(1) to establish that it is the duty of the transferee–not of
    anyone else–to assure that the transferee is not in violation of the
    minimum financial requirements upon accepting a transfer. The
    Commission would reframe current Sec.  190.06(c)(2) in proposed Sec. 
    190.07(b)(2)(i), but the changes would not be substantive. Similarly,
    proposed Sec.  190.07(b)(2)(ii)(A) and (B) would transpose current
    Sec.  190.06(c)(3) and (4), respectively, with conforming and non-
    substantive wording changes.
        Proposed Sec.  190.07(b)(3) and (4) are new common sense provisions
    to guide the transfer of open commodity contracts and property.
        Proposed Sec.  190.07(b)(3) recognizes that customer diligence
    processes would have already been required to have been completed by
    the debtor FCM with respect to each of its customers as part of opening
    their accounts. It thus would provide that a transferee may accept open
    commodity contracts and property, and may open accounts on its records
    prior to completing customer diligence, provided that account opening
    diligence as required is performed as soon as practicable but no later
    than six months after transfer, unless the time is extended, by the
    Commission, for a particular account, transfer, or debtor. The
    Commission believes that this proposal is entirely consistent with past
    practice in FCM bankruptcies, and provides the flexibility that is
    likely to be needed in a bankruptcy situation by allowing transfers to
    occur before customer due diligence is completed, while still

    [[Page 36025]]

    retaining the requirement that due diligence be performed as soon as
    practicable thereafter.
        Proposed Sec.  190.07(b)(4) is intended to further clarify what the
    governing agreement between the transferred customer and the transferee
    is at and after the time the transfer becomes effective. It is intended
    to make clear that any consequences for breaches pre-transfer would be
    borne by the transferor rather than the transferee. It would provide
    that any account agreements governing a transferred account shall be
    deemed assigned to the transferee and shall govern the customer’s
    relationship unless and until a new agreement is reached, and would
    also provide that a breach of the agreement prior to a transfer does
    not constitute a breach on the part of the transferee.
        Proposed Sec.  190.07(b)(5) carries forward current Sec. 
    190.02(c), and would provide that customer instructions received by the
    debtor with respect to open commodity contracts or specifically
    identifiable property that has been, or will be, transferred in
    accordance with section 764(b) of the Bankruptcy Code, should be
    transmitted to any transferee, who shall comply therewith to the extent
    practicable (if the transferee subsequently enters insolvency).
        The Commission would revise current Sec.  190.06(e), eligibility
    for transfer under section 764(b) of the Bankruptcy Code (accounts
    eligible for transfer), in proposed Sec.  190.07(c). Sections and
    references pertaining to dealer option accounts and leverage accounts
    would be deleted because those account types are no longer being
    addressed in this regulation.122 The proposed revision in Sec. 
    190.07(c) would change the language “all accounts are eligible for
    transfer” in current Sec.  190.06(e)(1) to “[a]ll commodity contract
    accounts (including accounts with no open commodity contract positions)
    are eligible for transfer . . . .” The new language would focus on the
    commodities business and recognizes that accounts can be transferred
    even if the accounts are intended for trading commodities but do not
    include any open commodity contracts at the time of the order for
    relief.123
    —————————————————————————

        122 This refers to the entirety of current Sec. 
    190.06(e)(1)(ii)-(iii) and (f)(1) and the reference to dealer option
    contracts in Sec.  190.06(f)(3)(i). Accounts for trading commodities
    are used to purchase or sell a commodity.
        123 Cf. 11 U.S.C. 761(9)(A)(ii)(II) (customer means, with
    respect to an FCM, an entity that holds a claim against the FCM
    arising out of “a deposit or payment of cash, security, or other
    property with such [FCM] for the purpose of making or margining [a]
    commodity contract”) (emphasis added).
        Thus, where a person opens a customer account and deposits
    collateral on day 1, intending to trade on day 3 (or some subsequent
    day when the customer determines that it is propitious to trade) and
    the FCM becomes a debtor on day 2 (or some other day when the
    customer has no positions open) such person nonetheless qualifies as
    a customer, and their claim would be a customer claim.
    —————————————————————————

        Proposed Sec.  190.07(d), special rules for transfers under section
    764(b) of the Bankruptcy Code, primarily would revise current Sec. 
    190.06(f). Current Sec.  190.06(f)(1) concerning dealer options would
    not be covered in this regulation.
        Proposed Sec.  190.07(d)(1) would be relocated from current Sec. 
    190.02(e)(1).
        Proposed Sec.  190.07(d)(2) would be drawn from current Sec. 
    190.06(f)(3), with revision intended to more generally promote
    transfers.
        Currently Sec.  190.06(f)(3)(i) provides that the Commission will
    not disapprove such a transfer for the sole reason that it was a
    partial transfer if it would prefer the transfer of accounts, the
    liquidation of which could adversely affect the market or the bankrupt
    estate. The Commission would revise the language in proposed Sec. 
    190.07(d)(2)(i) to state that the Commission will not disapprove such a
    transfer for the sole reason that it was a partial transfer.” The
    proposed revision would be consistent with the policy of promoting the
    transfer of customer commodity accounts.
        In proposed Sec.  190.07(d)(2)(ii), the Commission would clarify
    that the open commodity contracts and the associated property are to be
    transferred, thus the term “property” has been inserted throughout
    the section. The Commission would propose to add to current Sec. 
    190.06(f)(2)(ii) a requirement that a partial transfer of contracts and
    property may be made so long as such transfer would not result in an
    increase in the amount of any customer’s net equity claim. The added
    language would caution against partial transfers that would break
    netting sets and make the customer worse off. The Commission also would
    add language that clarifies that one way to accomplish a partial
    transfer is by liquidating a portion of the open commodity contracts
    held by a customer such that sufficient value is realized, or margin
    requirements are reduced to an extent sufficient, to permit the
    transfer of some or all of the remaining open commodity contracts and
    property. The revisions are intended to clarify that the liquidation
    may either crystalize gains or have the effect of reducing the required
    margin. Finally, with regards to the transfer of part of a spread or a
    straddle, the Commission would insert language in Sec. 
    190.07(d)(2)(ii) that states “to the extent practicable under the
    circumstances,” each side of the spread or straddle must be
    transferred or none of the open commodity contracts comprising the
    spread or straddle may be transferred. This language would be added to
    clarify that the trustee is required to protect customers holding
    spread or straddle positions from the breaking of netting sets, but
    only to the extent practicable given the circumstances.
        Proposed Sec.  190.07(d)(3) is new. It would provide details
    regarding the treatment and transfer of letters of credit used as
    margin, consistent with other proposed provisions related to letters of
    credit. Generally, this provision states that a letter of credit
    associated with a commodity contract may be transferred with an
    eligible commodity contract account if it is held by a DCO on a pass-
    through basis or if it is transferable by its terms. This transfer
    cannot be made if it would result in a recovery that exceeds the amount
    to which the customer is entitled in proposed Sec. Sec.  190.08 and
    190.09 (note that, pursuant to proposed Sec.  190.04(d)(3)(ii), any
    portion of such a letter of credit that is not drawn upon is treated as
    having been distributed to the customer, except to the extent that the
    customer delivers substitute customer property).
        If the letter of credit cannot be transferred and the customer does
    not deliver substitute property, the trustee may draw upon a portion or
    upon all of the letter of credit, the proceeds of which will be treated
    as customer property in the applicable account class. The Commission
    believes a regulation detailing how letters of credit are to be treated
    in a transfer will provide more certainty, as there is currently no
    such regulation, and that the proposed treatment is both practical and
    consistent with the policy of pro rata distribution.124
    —————————————————————————

        124 See also discussion of treatment of letters of credit in
    bankruptcy under proposed Sec.  190.04(d)(3) in section II.B.2.
    —————————————————————————

        Proposed Sec.  190.07(d)(4) is new and would require a trustee to
    use reasonable efforts to prevent physical delivery property from being
    separated from commodity contract positions under which the property is
    deliverable. The Commission is proposing this regulation to clarify its
    expectations in such situations, specifically, to promote the delivery
    process.
        Proposed Sec.  190.07(d)(5) is intended to prevent prejudice to
    customers generally by prohibiting the trustee from making a transfer
    that would result in insufficient customer property being

    [[Page 36026]]

    available to make equivalent percentage distributions to all equity
    claim holders in the applicable account class. It would revise current
    Sec.  190.06(e)(2), changing the framing of the current regulation and
    focusing on transfers as a whole. The Commission further would clarify
    that the trustee should make determinations based on customer claims
    reflected in the FCM’s records, and, for customer claims that are not
    consistent with those records, should make estimates using reasonable
    discretion based in each case on available information as of the
    calendar day immediately preceding transfer.
        The Commission would revise current Sec.  190.06(g) in proposed
    Sec.  190.07(e), regarding the prohibition on avoidance of transfers
    under section 764(b) of the Bankruptcy Code. Throughout proposed Sec. 
    190.07(e), the Commission would insert “or customer property”
    following “the transfer of commodity contract accounts” to clarify
    that transfers of commodity contract accounts include the associated
    customer property, and that customer property may be transferred even
    if the customer has no open commodity contracts (as was done in the MF
    Global bankruptcy).
        In proposed Sec.  190.07(e)(1), concerning transfers that were made
    pre-relief,125 the Commission would add language that transfers “are
    approved” to clarify that the Commission is following the procedure
    set forth in the Bankruptcy Code and adding specific citations to the
    Bankruptcy Code. Proposed Sec.  190.07(e)(1)(ii) also would apply to
    withdrawals or settlements at the request of public customers, in
    addition to transfers, in order to incorporate current Sec. 
    190.06(g)(3). In this context, “public customers” would include a
    lower-level (i.e., downstream) FCM acting on behalf of its own public
    customers (e.g., cleared at the debtor on an omnibus basis).
    —————————————————————————

        125 Proposed Sec.  190.07(e) refers to transfers that were
    made “pre-relief” rather than “pre-filing date” because section
    764(b) is based on the date of relief, not the filing date. The
    difference is attributable to the fact that, unlike voluntary
    bankruptcy cases, where the filing of the case constitutes an order
    for relief, see 11 U.S.C. 301(b), the order for relief in an
    involuntary bankruptcy will issue only if the petition is not timely
    controverted, or after trial. See 11 U.S.C. 303(h).
    —————————————————————————

        Proposed Sec.  190.07(e)(1)(iii) would add a provision to respect
    the actions of a receiver acting to protect the interests of customers
    in their property. Specifically, the provision would prohibit the
    avoidance of a transfer from “a receiver that has been appointed for
    the FCM that is now a debtor.” 126
    —————————————————————————

        126 A receiver might be appointed pursuant to, e.g., section
    6c(a) of the CEA, 7 U.S.C. 13a-1(a).
    —————————————————————————

        Proposed Sec.  190.07(e)(2) would pertain to post-relief transfers.
    In proposed Sec.  190.07(e)(2)(i), which is derived from current Sec. 
    190.06(g)(2)(i), the Commission would modify the term “SRO/commodity
    broker” to “clearing organization” because the only entities who can
    perform the transfers that are subject to the provision are the
    trustee, and, in certain circumstances, clearing organizations.
    Proposed Sec.  190.07(e)(2)(ii) is derived from current Sec. 
    190.06(g)(2)(ii). Similarly, proposed Sec.  190.07(e)(3) is derived
    from current Sec.  190.06(g)(3), dealing with withdrawals (in contrast
    to the transfers dealt with previously).
        Proposed Sec.  190.07(f) is a revision to current Sec.  190.06(h)
    regarding Commission action. The Commission would clarify that,
    notwithstanding the other provisions of this section (with exceptions
    discussed below), it may prohibit the transfer of a particular set or
    sets of the commodity contract accounts, or permit the transfer of a
    particular set or sets of commodity contract accounts that do not
    comply with the requirements of the section. In addition, the
    Commission would clarify that the transfers of the commodity contract
    accounts includes the associated customer property. The exceptions are
    the policy in favor of avoiding the breaking of netting sets in Sec. 
    190.07(d)(2)(ii), and the avoidance of prejudice to other customers in
    Sec.  190.07(d)(5).
        The Commission requests comment with respect to all aspects of
    proposed Sec.  190.07. Specifically, the Commission seeks comment on
    proposed Sec.  190.07(b)(3), which permits transferees to accept open
    commodity contracts and property prior to completing customer
    diligence. Does the proposed provision with a maximum six-month period
    post-transfer (absent Commission action) for diligence requirements
    provide FCMs with sufficient flexibility to accept transfers following
    an FCM bankruptcy? Are there additional constraints on the requirements
    to perform diligence imposed by other regulators that the Commission
    should take into account? The Commission also seeks comment on proposed
    Sec.  190.07(d)(2)(ii). Are there better ways to structure the
    provisions regarding partial transfers of a customer’s commodity
    contract account? Is the discretion granted to the trustee concerning
    estimates of other customer claims appropriate?
    6. Regulation Sec.  190.08: Calculation of Allowed Net Equity
        Proposed Sec.  190.08 is derived from current Sec.  190.07, with a
    significant number of technical changes.
        Proposed Sec.  190.08(a) is derived from current Sec.  190.07(a),
    but changed to reflect the fact that, under the revised definition of
    the term “primary liquidation date,” all commodity contracts will be
    liquidated or transferred prior to the primary liquidation date.127
    Since no (relevant) operations will occur subsequent to the liquidation
    date, current Sec.  190.07(d), a provision that sets forth instructions
    on how to adjust a customer’s funded balance due to operations
    subsequent to the primary liquidation date, is rendered moot, and the
    reference to such section would be removed in proposed Sec. 
    190.08(a).128
    —————————————————————————

        127 See definition of “primary liquidation date” in proposed
    Sec.  190.01.
        128 For the same reason, two other provisions in current Sec. 
    190.07 also would be deleted. First, current Sec.  190.07(b)(6),
    which instructs the trustee how to adjust the calculation of net
    equity of accounts remaining open subsequent to the primary
    liquidation date, would be deleted from proposed part 190. Second,
    current Sec.  190.07(c)(2)(v), which provides that the calculation
    of funded balance must be adjusted by deficits generated by the
    continued operation of accounts after the primary liquidation date
    which cannot be fully adjusted under current Sec.  190.07(d), has
    also would be deleted. Since, under the revised definition of the
    term “primary liquidation date,” no accounts will remain open
    subsequent to the primary liquidation date, these two provisions
    would no longer be necessary.
    —————————————————————————

        Proposed Sec.  190.08(b), like current Sec.  190.07(b), would set
    forth the steps for a trustee to follow when calculating each
    customer’s net equity.129 This proposed revision is meant to clarify
    that, when calculating the customer’s claim against the debtor, the
    basis for calculating such claim should be what appears in the debtor’s
    records. Once the customer’s claim based on the debtor’s records is
    calculated, the customer will have the opportunity to dispute such
    claim based on their own records, and the trustee may adjust the
    debtor’s records if it is persuaded by the customer. However, for
    purposes of the calculations set forth in proposed Sec.  190.08(b), the
    focus should be on the numbers that appear in the debtor’s own records.
    In the header language to proposed Sec.  190.08(b), the text would
    accordingly refer to “a customer’s total customer claim of record”
    rather than “the total claim of a customer” against the estate of the
    debtor.”
    —————————————————————————

        129 Pursuant to section 20(a)(5) of the CEA, 7 U.S.C.
    24(a)(5), the Commission has the power to provide how the net equity
    of a customer is to be determined.
    —————————————————————————

        In addition, the header language to proposed Sec.  190.08(b) would
    clarify that the calculation of a customer’s claim against the debtor
    is based on all types of customer property, including any commodity
    contracts, held by the debtor for or on behalf of the customer. While

    [[Page 36027]]

    this was always the Commission’s intent, the language in current Sec. 
    190.07(b) could be construed more narrowly to exclude any customer
    property other than commodity contracts.
        Proposed Sec.  190.08(b)(1), which would set forth the steps for a
    trustee to follow when calculating the equity balance of each commodity
    contract account of a customer, is derived from current Sec. 
    190.07(b)(1), with the following changes (to the extent not addressed
    below, the provisions in proposed Sec.  190.08(b)(1) are the same as
    those in current Sec.  190.07(b)(1)).
        First, in proposed Sec.  190.08(b)(1)(i), which corresponds to
    current Sec.  190.07(b)(1), the revised text would instruct the trustee
    to determine the equity balance of “each commodity contract account,”
    rather than “each customer account.” The term “commodity contract
    account” would be a defined term and, in the Commission’s view, using
    such defined term in this context would be more precise because a
    customer may have other types of accounts (e.g., securities accounts)
    with the debtor that are not relevant for the purposes of calculating
    net equity.
        Second, in proposed Sec.  190.08(b)(1)(i)(C), which corresponds
    with current Sec.  190.07(b)(1)(iii), the Commission would replace the
    term “current realizable market value” with “realizable market
    value” in order to avoid confusion, since, according to the regulation
    text, the realizable market value is determined as of the close of the
    market on the last preceding market day.
        Third, proposed Sec.  190.08(b)(1)(ii)(A)(2), which corresponds
    with current Sec.  190.07(b)(1)(iii)(A)(2), would be simplified to more
    clearly refer to the cash proceeds from the liquidation of the customer
    securities or other property referred to earlier in proposed Sec. 
    190.08(b)(1)(i)(C).
        Fourth, proposed Sec.  190.08(b)(1)(ii)(A)(4) regarding letters of
    credit is new, and would be added to be consistent with other new
    provisions regarding how letters of credit are to be treated in the
    event of an FCM bankruptcy. This provision would treat the face amount
    of any letter of credit received, acquired or held to margin,
    guarantee, secure, purchase, or sell a commodity contract as part of
    the posting customer’s ledger balance.130
    —————————————————————————

        130 Separately, in proposed Sec.  190.04(d)(3)(ii), any
    portion of the letter of credit that is not drawn upon is treated as
    having been distributed to the customer (with any substitute
    customer property posted serving as an offset).
    —————————————————————————

        Lastly, in proposed Sec.  190.08(b)(1)(ii)(B)(2), which corresponds
    with current Sec.  190.07(b)(1)(iii)(B)(2), the Commission would add a
    reference to transfers made pursuant to proposed Sec. Sec.  190.04(a)
    and 190.07, which the Commission would clarify should be categorized as
    disbursements for the purposes of this paragraph.
        Proposed Sec.  190.08(b)(2) is derived from current Sec. 
    190.07(b)(2). Proposed Sec.  190.08(b)(2) would provide instructions to
    the trustee regarding how to aggregate the credit and debit equity
    balances of all accounts of the same class held by a customer.
    Specifically, the proposed regulation would set forth how to determine
    whether accounts are held in the same capacity or in separate
    capacities. The Commission is proposing three changes in proposed Sec. 
    190.08(b)(2) from current Sec.  190.07(b)(2). First, in both proposed
    Sec.  190.08(b)(2)(iii) and (iv), the Commission would add language to
    clarify that, in discussing accounts held in the name of an executor or
    administrator of an estate, the Commission is referring to accounts
    held in the name of an executor or administrator in its capacity as
    such. This clarification would reflect what was always intended in
    current Sec.  190.07(b)(2)(iii) and (iv). Second, in proposed Sec. 
    190.08(b)(2)(viii), the Commission would delete the terms “leverage
    accounts” and “options accounts,” as those types of accounts are no
    longer being addressed in proposed part 190.131 Third, also in
    proposed Sec.  190.08(b)(2)(viii), the Commission would add a
    referenced exception to the paragraph, which notes that futures
    accounts, delivery accounts, and cleared swaps accounts of the same
    person shall not be deemed to be held in separate capacities, although
    such accounts may be aggregated in accordance with paragraph (b)(3) of
    the section. Current Sec.  190.07(b)(2)(viii) is subject to one
    exception, paragraph (b)(2)(ix) of the section, which sets forth that
    an omnibus customer account of an FCM shall be deemed to be held in a
    separate capacity from the house account and any other omnibus customer
    account of such person. Proposed Sec.  190.08(b)(2)(viii) would also be
    subject to exception from paragraph (b)(2)(ix) and would add another
    exception, from paragraph (b)(2)(xiv), which would reflect that
    accounts held by a customer in separate capacities shall be deemed to
    be accounts of separate customers. Fourth, in proposed Sec. 
    190.08(b)(2)(xi), the Commission would expand the scope of retirement
    or pension plans that are discussed in that paragraph. As written,
    current Sec.  190.07(b)(2)(xi) refers only to retirement or pension
    plans under the Employee Retirement Income Security Act of 1974
    (“ERISA”); the Commission’s proposal would expand the scope of plans
    dealt with in proposed Sec.  190.08(b)(2)(xi) to those under ERISA or
    similar federal,132 state or foreign laws or regulations applicable
    to pension and retirement plans since, in the Commission’s view, any
    such retirement or pension plan is a separate entity from its
    administrators, employers, employees, participants, or beneficiaries.
    —————————————————————————

        131 See proposed Sec.  190.00(d)(1)(i).
        132 Including, e.g., a church plan exempt from ERISA pursuant
    to section 403(b)(9) thereof.
    —————————————————————————

        Proposed Sec.  190.08(b)(3), which sets forth instructions
    regarding how and when to set off positive and negative equity
    balances, is derived from current Sec.  190.07(b)(3). The Commission
    would make several non-substantive edits to the current text for
    clarification purposes including, in proposed Sec.  190.08(b)(3)(ii),
    adding letters to illustrate the equation that is described in the
    text. In addition, the Commission would edit Sec.  190.08(b)(3)(ii) and
    (iii) to clarify that the provisions regarding the offset against a
    positive equity balance only apply in the event a customer has more
    than one class of account with a positive equity balance. Lastly, the
    Commission would make a slight change in proposed Sec.  190.08(b)(3)(v)
    to clarify that, prior to the entry of an order for relief, the
    provisions of Sec.  1.22 of the Commission’s regulations and section 4d
    of the CEA govern what setoffs are permitted. As written, current Sec. 
    190.07(b)(3)(v) refers to both the date of entry of an order for relief
    and the filing date, but the Commission notes that, in an involuntary
    bankruptcy, there may be a time gap between those dates. The
    Commission’s proposed change to refer only to the date of entry of an
    order for relief would account for that inconsistency.
        Proposed Sec.  190.08(b)(4), which would provide that the value of
    property that has been transferred or distributed must be added to the
    net equity amount calculated for that customer, is substantially
    similar to current Sec.  190.07(b)(4). In the proviso language, the
    Commission would replace the term “customer claims” with “allowed
    customer claims.” This change is intended to clarify that the
    calculation of net equity for any late-filed claims should be based on
    the amount that the customer is actually entitled to. The Commission
    also would correct a

    [[Page 36028]]

    typographical error in current Sec.  190.07(b)(4) where the word
    “data” should be “date.”
        Proposed Sec.  190.08(b)(5), which would provide that the
    calculation of net equity should be adjusted to correct for
    misestimates or errors, including corrections for the liquidation of
    claims or specifically identifiable property at a value different from
    the estimate value previously used in computing net equity, would be
    substantially similar to current Sec.  190.07(b)(5), with two minor
    changes. First, the Commission is proposing to revise the term
    “subsequent events” to “ongoing events” in order to recognize that
    such events may be “ongoing” during the administration of the estate,
    accounting for the volatility that may arise with such events. The
    prior term of “subsequent events” refers to the primary liquidation
    date. Second, the Commission would add the phrase “or specifically
    identifiable property” to clarify that one of the ongoing events that
    should result in an adjustment to the calculation of net equity is the
    liquidation of unliquidated claims or specifically identifiable
    property at a value different from the estimated value previously used.
        Proposed Sec.  190.08(c), concerning the calculation of the funded
    balance, is derived from current Sec.  190.07(c). In the header
    language to proposed Sec.  190.08(c), the references to calculation as
    of the primary liquidation date would be deleted, because the funded
    balance (i.e., each customer’s pro rata share of the customer estate
    with respect to an account class) is relevant both (i) before the
    primary liquidation date (in support of determining how much value may
    be transferred, if a prompt transfer can be arranged) and (ii) after
    the primary liquidation date (as the value of property in the estate
    relative to claims may change as assets (including claims by the
    estate) are marshalled and liquidated, and claims against the estate
    are made and resolved).
        Proposed Sec.  190.08(c)(1), would set forth instructions for
    calculating the funded balance of any customer claim, and is derived
    from current Sec.  190.07(c)(1). The Commission would make several non-
    substantive edits to the current text for clarification purposes,
    including (1) in proposed Sec.  190.08(c)(1), clarifying that the
    funded balance of any customer claim shall be computed separately by
    account class and customer class; (2) in proposed Sec. 
    190.08(c)(1)(i), adding letters to illustrate the equation that is
    described in the text; and (3) in proposed Sec.  190.08(c)(1)(i)(B) and
    (C), referring to “other property” instead of simply “property.” In
    addition, the Commission would add Sec.  190.08(c)(1)(i)(A), which
    would state that the ratio calculated in proposed Sec.  190.08(c)(1)(i)
    should be multiplied by the sum of, among other items, the value of
    letters of credit received, acquired or held to margin, guarantee,
    secure, purchase, or sell a commodity contract relating to all customer
    accounts of the same class. This provision would be added to provide
    consistency with the other new provisions regarding the use of letters
    of credit.
        Proposed Sec.  190.08(c)(1)(i)(B) is derived from current Sec. 
    190.07(c)(1)(i)(A). Here, the Commission would refer to “all customer
    accounts of the same class” rather than “all accounts of the same
    class.” This change is meant to clarify that this provision only
    applies to customer accounts.
        Proposed Sec.  190.08(c)(1)(ii) is derived from current Sec. 
    190.07(c)(1)(ii), with two proposed changes: First, the Commission
    would recognize that an FCM may be taken into insolvency involuntarily,
    and proposes to account for that possibility by starting the period
    during which 100% of margin is credited in an involuntary case on the
    date of the bankruptcy filing. Second, taking into account prior
    changes made with respect to the use of letters of credit, the
    Commission would add a proviso at the end of the paragraph to describe
    how margin posted to substitute for a letter of credit would affect the
    calculation of funded balance.
        Proposed Sec.  190.08(c)(2) is derived from current Sec. 
    190.07(c)(2), and would require the funded balance to be adjusted to
    correct for ongoing events including, but not limited to, those events
    listed in the proposed and current regulation. Current Sec. 
    190.07(c)(2)(v) would be deleted from the proposed regulation since,
    under the revised definition of “primary liquidation date,” no
    account will be continuing to operate after the primary liquidation
    date, thus rendering current Sec.  190.07(c)(2)(v) moot. In this
    paragraph the Commission would revise the term “subsequent events” to
    “ongoing events” for the same reasons discussed in Sec. 
    190.08(b)(5).
        Proposed Sec.  190.08(d) is derived from current Sec.  190.07(e).
    Both set forth instructions about how to value commodity contracts and
    other property for purposes of calculating net equity as set forth in
    the rest of proposed Sec.  190.08. The Commission is proposing to
    delete current Sec. Sec.  190.07(e)(2) (valuation of principal
    contracts) and (e)(3) (valuation of bucketed contracts) in favor of the
    more generalized approach to valuing property held by or for a
    commodity broker set forth in proposed Sec.  190.08(d)(5), which allows
    the trustee a certain degree of flexibility in valuing such property.
    Proposed Sec.  190.08(d)(5) is discussed in further detail below.
        In addition, current Sec.  190.07(e) contains, in the header
    language, instructions to the trustee about when the trustee may use
    the weighted average of the liquidation prices of commodity contracts
    and other property in computing the net equity of each customer. The
    Commission would retain the concept of using the weighted average of
    liquidation prices in certain circumstances, but would move such
    concept into other sections of proposed Sec.  190.08(d); as such, this
    concept is discussed in further detail below.
        Proposed Sec.  190.08(d)(1) is derived from current Sec. 
    190.07(e)(1), and would set forth instructions about how to value
    commodity contracts. The Commission would reorganize proposed Sec. 
    190.08(d)(1) into two paragraphs: (i) Open commodity contracts, and
    (ii) liquidated commodity contracts.
        In proposed Sec.  190.08(d)(1)(i) regarding the valuation of open
    commodity contracts, the Commission would maintain the requirement that
    the value of an open commodity contract shall be equal to the
    settlement price as calculated by the clearing organization pursuant to
    its rules. The Commission, however, would delete the requirement that
    the clearing organization’s rules must be approved by the Commission.
    As noted above,133 the Commission believes that the various processes
    set forth in part 40 of the Commission’s regulations (including self-
    certification under Sec.  40.6, voluntary submission for rule approval
    under Sec.  40.5, and Commission review of certain rules of
    systemically important DCOs under Sec.  40.10) are sufficient, and that
    a separate rule approval process for rules regarding valuation of open
    commodity contracts is no longer necessary.
    —————————————————————————

        133 See discussion of proposed Sec.  190.04(e)(2) in section
    II.B.2 above.
    —————————————————————————

        In addition, current Sec.  190.07(e)(1) provides that, if an open
    commodity contract is transferred, its value shall be determined as of
    the end of the settlement cycle in which it is transferred. The
    Commission would change the timing for valuation in proposed Sec. 
    190.08(d)(1)(i) to the end of the last settlement cycle on the day
    preceding the transfer. This would allow the value of the open
    commodity contract to be known prior to the transfer. There would be
    other non-substantive revisions to the wording of

    [[Page 36029]]

    proposed Sec.  190.08(d)(1)(i) as compared to that in current Sec. 
    190.08(e)(1).
        Proposed Sec.  190.08(d)(1)(ii) would be changed to clarify how to
    value commodity contracts that have been liquidated. Current Sec. 
    190.07(e)(1) provides that the value of a liquidated commodity contract
    “shall be equal to the net proceeds of liquidation.” Proposed Sec. 
    190.08(d)(1)(ii) instead provides that the value of a liquidated
    commodity contract “shall equal the actual value realized on
    liquidation of the commodity contract.”
        Proposed Sec.  190.08(d)(1)(ii)(A) would allow the trustee to use
    the weighted average of liquidation prices for identical commodity
    contracts that are liquidated within a 24-hour period or business day,
    but not at the same price. This concept derives from text that is
    currently in Sec.  190.07(e). This provision is important because it
    recognizes that, in a bankruptcy situation, the trustee may liquidate
    identical commodity contracts over a short period of time but may not
    be able to liquidate them all at the same price. In order to provide
    the trustee with an appropriate mechanism for determining the value of
    such commodity contracts, the Commission is proposing to allow the
    trustee to use the weighted average of liquidation prices of identical
    commodity contracts liquidated within a certain period of time but at
    different prices. The Commission proposes certain changes to the
    current text including, for example, the time period within which such
    contracts must be liquidated in order for the trustee to use the
    weighted average of the liquidation prices. While current Sec. 
    190.07(e) applies this concept to commodity contracts liquidated “on
    the same date,” proposed Sec.  190.08(d)(1)(ii)(A) would apply this
    concept to commodity contracts liquidated “within a 24 hour period or
    business day (or such other period as the bankruptcy court may
    determine is appropriate).” The Commission notes that settlement days
    and business days often do not fall within one calendar date. For
    instance, in accordance with proposed Sec.  190.01, a “business day”
    begins at 8 a.m. one day and ends at 7:59:59 a.m. the next day that is
    a business day. On weekends, a “business day” begins at 8 a.m. on
    Friday morning and ends at 7:59:59 a.m. on Monday morning. Thus, the
    Commission would revise the time frame in proposed Sec. 
    190.08(d)(1)(ii)(A) to bring it more in line with how settlement cycles
    and business days work.
        Proposed Sec.  190.08(d)(1)(ii)(B), which would provide
    instructions on how to value commodity contracts that are liquidated as
    part of a bulk auction by a clearing organization or similarly outside
    of the open market, is a new provision. It is important to recognize
    that commodity contracts are, at times, liquidated as part of a bulk
    auction or otherwise outside of the open market, and to provide for a
    mechanism by which to value commodity contracts that are liquidated in
    such a manner. The proposed regulation would value a commodity contract
    that is liquidated as part of a bulk auction at the settlement price
    calculated by the clearing organization as of the end of the settlement
    cycle during which the commodity contract was liquidated. The
    Commission is not proposing to set the value of a commodity contract
    that is liquidated as part of a bulk auction at the auction price,
    because the auction will not necessarily establish the price for each
    particular position; rather, the auction might cover an entire
    portfolio, or a portfolio that is divided into separate “lots” that
    consist of related (but not necessarily identical) positions.
        Proposed Sec.  190.08(d)(2) is derived from current Sec. 
    190.07(e)(4). Proposed Sec.  190.08(d)(2) would incorporate the same
    weighted average concept discussed above with respect to proposed Sec. 
    190.08(d)(1)(ii)(A), allowing a trustee to use the weighted average of
    the liquidation prices of identical securities that are liquidated
    within a 24-hour period or business day (or such other period as the
    bankruptcy court may determine is appropriate), but not at the same
    price. As discussed above, allowing a trustee to use the weighted
    average of liquidation prices of identical securities liquidated within
    a certain period of time but at different prices provides the trustee
    with an appropriate mechanism for determining the value of such
    securities. For the same reasons stated above, the Commission would
    revise the time period within which such securities must be liquidated
    in order for the trustee to use the weighted average of the liquidation
    prices. In addition, for clarification purposes, the Commission is
    proposing that the value of liquidated securities shall equal the
    actual value realized on liquidation of the securities.
        Proposed Sec.  190.08(d)(3) is derived from current Sec. 
    190.07(e)(5). While current Sec.  190.07(e)(5) determines how to value
    “cash commodities” held in inventory, the Commission believes that
    this concept is more appropriately applied to all “commodities” held
    in inventory. Additionally, recognizing that the fair market value of a
    commodity held in inventory is not always readily ascertainable, the
    Commission would provide that, in such an event, the trustee may value
    such commodity in accordance with proposed Sec.  190.08(d)(5), a catch-
    all provision providing the trustee with flexibility to value property
    using such professional assistance as they deem necessary.
        Proposed Sec.  190.08(d)(4) is new, and would be added by the
    Commission to be consistent with other changes regarding the use of
    letters of credit received, acquired or held to margin, guarantee,
    secure, purchase, or sell a commodity contract.
        Proposed Sec.  190.08(d)(5) is derived from current Sec. 
    190.07(e)(5). Proposed Sec.  190.08(d)(5) would provide the trustee
    with pragmatic flexibility in determining the value of customer
    property by allowing the trustee, in their discretion, to enlist the
    use of professional assistance to value customer property. In
    furtherance of the goal of providing flexibility to the trustee, the
    Commission would delete the requirement that the trustee seek approval
    of the court prior to enlisting professional assistance to value
    customer property.134 Such a constraint, in the Commission’s view,
    unduly restricts the trustee’s actions in a bankruptcy situation and is
    unnecessary. In addition, for clarification purposes, the Commission is
    proposing that the value of property that is sold shall equal the
    actual value realized on sale of such property.
    —————————————————————————

        134 To be sure, the requirements of 11 U.S.C. 327 concerning
    the employment of professional persons would still apply. However,
    the regulation would no longer require the approval of the court to
    invoke the assistance of such an approved professional in valuing
    customer property, so long as such assistance falls within the scope
    of activity approved pursuant to Code section 327.
    —————————————————————————

        The Commission requests comment with respect to all aspects of
    proposed Sec.  190.08. Specifically, the Commission seeks comment with
    regards to the proposed revisions to the calculation of the equity
    balance of a commodity contract set forth in proposed Sec. 
    190.08(b)(1). Are there any unintended consequences from the proposed
    revisions and, if so, how can such consequences be mitigated? The
    Commission also seeks comment as to the appropriateness of the proposal
    to determine the value of an open commodity contract at the end of the
    last settlement cycle on the day preceding the transfer rather than at
    the end of the day of the transfer, as set forth in Sec.  190.08(d)(1)-
    (2).
    7. Regulation Sec.  190.09: Allocation of Property and Allowance of
    Claims
        Proposed Sec.  190.09 is derived from current Sec.  190.08.
    Generally, proposed Sec.  190.09 would provide that the

    [[Page 36030]]

    property of a debtor’s estate must be allocated among account classes
    and between customer classes as provided in the proposed regulation.
    This property would constitute a separate estate of the customer class
    and the account class to which it is allocated and would be designated
    by reference to such customer class and account class.
        There are three substantive changes in proposed Sec.  190.09, and a
    significant number of technical changes. The substantive changes are as
    follows:
        Proposed Sec.  190.09(a)(1)(ii)(G) and (L) are two categories of
    property that are defined to be included in customer property in order
    better to protect customers from shortfalls in customer property (i.e.,
    cases where customer property is insufficient to cover claims for
    customer property).
        Paragraph (a)(1)(ii)(G) would be a new category of property that
    constitutes customer property. It would include any cash, securities,
    or other property which constitutes current assets of the debtor,
    including the debtor’s trading or operating accounts and commodities of
    the debtor held in inventory, in the greater of (i) the amount of the
    debtor’s targeted residual interest amount pursuant to Sec.  1.11 with
    respect to each account class, or (ii) the debtor’s obligations to
    cover debit balances or under-margined amounts as provided in
    Sec. Sec.  1.20, 1.22, 22.2 and, 30.7.135 Each of the sets of
    regulations referred to in proposed Sec.  190.09(a)(1)(ii)(G) requires
    an FCM to put certain funds into segregation on behalf of customers. To
    the extent the FCM has failed to comply with those regulatory
    requirements prior to the filing of the bankruptcy, this provision
    requires the bankruptcy trustee to fulfill that requirement, and allows
    the trustee to use the current assets of the debtor to do that. The
    Commission is of the view that proposed Sec.  190.09(a)(1)(ii)(G) would
    be appropriate since an FCM is already required, under the Commission’s
    regulations, to set aside the funds referred to for the benefit of its
    customers, and because the provision limits the amount of funds a
    trustee may take from the debtor’s current assets to put into
    segregation for the FCM’s customers. Proposed Sec.  190.09(a)(1)(ii)(G)
    also fits within the definition of “customer property” in section 761
    of the Bankruptcy Code, which refers to “other property of the debtor
    that any applicable law, rule, or regulation requires to be set aside
    or held for the benefit of a customer.” 136
    —————————————————————————

        135 See ABA Cover Note at 15 (“recommend[ing] adding a
    provision to the customer property definition that deems property in
    the debtor’s estate to be customer property to the extent of the
    FCM’s obligation to maintain a targeted residual amount in
    segregation pursuant to CFTC Rule 1.11, or its obligation to cover
    debit balances or under-margined amounts in customer accounts under
    CFTC Rules 1.22, 22.2 or 30.7 . . . adding a provision that
    expressly covers an FCM’s `top-up’ obligations prescribed under
    specific CFTC rules provides greater legal certainty.”)
        136 11 U.S.C. 761(10)(A)(ix).
    —————————————————————————

        Proposed Sec.  190.09(a)(1)(ii)(L) is the analog to current Sec. 
    190.08(a)(1)(ii)(J) but with updated cross-references (and a new second
    sentence, discussed in the next paragraph). It would state that
    customer property includes any cash, securities, or other property in
    the debtor’s estate, but only to the extent that the customer property
    under the other definitional elements is insufficient to satisfy in
    full all claims of the FCM’s public customers. The Commission notes
    that in In re Griffin Trading Co.,137 the United States Bankruptcy
    Court for the Northern District of Illinois ruled that the Commission
    exceeded its statutory authority by adopting current Sec. 
    190.08(a)(1)(ii)(J) and held that it was invalid. This decision was
    vacated on appeal pursuant to a settlement reached by the parties. The
    property described in proposed Sec.  190.09(a)(1)(ii)(L), like proposed
    Sec.  190.09(a)(1)(ii)(G) discussed above, would appear to fit within
    the definition of “customer property” in section 761 of the
    Bankruptcy Code, which refers to “other property of the debtor that
    any applicable law, rule, or regulation requires to be set aside or
    held for the benefit of a customer” 138 because of the Commission’s
    regulations regarding segregation of customer property. Thus, though
    current Sec.  190.08(a)(1)(ii)(J) may be subject to challenge, the
    Commission continues to be of the view that section 20 of the CEA
    provides it with the authority to include proposed Sec. 
    190.09(a)(1)(ii)(L) in part 190.
    —————————————————————————

        137 245 B.R. 291 (Bankr. N.D. Ill. 2000), vacated, 270 B.R.
    882 (N.D. Ill. 2001).
        138 11 U.S.C. 761(10)(A)(ix).
    —————————————————————————

        A new second sentence of proposed Sec.  190.09(a)(1)(ii)(L) would
    note explicitly that customer property for purposes of these
    regulations includes any “customer property,” as that term is defined
    in SIPA, that remains after satisfaction of the provisions in SIPA
    regarding allocation of (securities) customer property. SIPA provides
    that such remaining customer property would be allocated to the general
    estate.139 It would appear that any securities customer property that
    remains after satisfaction in full of securities claims provided for in
    that section of SIPA proceeding and would accordingly become property
    of the general estate should, to the extent otherwise provided in
    proposed Sec.  190.09(a)(1)(ii)(L), and for the same reasons, become
    customer property in the FCM bankruptcy proceeding.
    —————————————————————————

        139 See generally SIPA section 8(c)(1), 15 U.S.C. 78fff-
    2(c)(1).
    —————————————————————————

        Proposed Sec.  190.09(d) introductory text would govern the
    distribution of customer property, and has its analog in current Sec. 
    190.08(d). While current Sec.  190.08(d)(1)(i) and (ii) and (d)(2)
    require customers to deposit cash in order to obtain the return of
    specifically identifiable property, proposed Sec.  190.09(d)(1)(i) and
    (ii) and (d)(2) would require instead the posting of “substitute
    customer property,” a term proposed to be defined in proposed Sec. 
    190.01 to mean (in relevant part) “cash or cash equivalents.” “Cash
    equivalents” is proposed, in turn, to be defined as “assets, other
    than United States dollar cash, that are highly liquid such that they
    may be converted into United States dollar cash within one business day
    without material discount in value.” 140
    —————————————————————————

        140 The header language in proposed Sec.  190.09(d)(1) deletes
    the phrase “other than a commodity contract,” though this deletion
    does not have a substantive effect, and is meant for clarification
    purposes only.
    —————————————————————————

        The purpose of requiring customers to, in essence, “buy back”
    specifically identifiable property is to implement the pro rata
    distribution principle set forth in section 766(h) of the Bankruptcy
    Code, and discussed in proposed Sec.  190.00(d)(5). More particularly,
    section 766(d) provides that if the value of specifically identifiable
    property exceeds the amount to which the customer is entitled under
    subsection (h) or (i) of section 766, then the customer may deposit
    cash with the trustee equal to the difference between the value of such
    property and the amount to which the customer is entitled, and the
    trustee then shall return or transfer the property.
        Permitting customers to redeem specifically identifiable property
    with either cash or cash equivalents, rather than requiring cash, may
    mitigate the difficulty (and costs) such customers face in obtaining
    redemption, but will in any event fully implement the pro rata
    distribution principle. In addition, each of proposed Sec. 
    190.09(d)(1)(i) and (ii) and (d)(2) would replace the phrase “in an
    amount equal to” with “with a value equal to” to account for the
    proposal that customers may now use cash equivalents, rather than just
    cash, to

    [[Page 36031]]

    redeem their specifically identifiable property.141
    —————————————————————————

        141 While section 766(d) would require the customer to deposit
    cash, section 20(a)(3) of the CEA permits the Commission to
    “[n]otwithstanding title 11 . . . provide . . . by rule or
    regulation . . . the method by which the business of [a debtor]
    commodity broker is to be conducted or liquidated after the date of
    the filing of the petition” in bankruptcy. It would appear that
    this power extends to enacting a regulation permitting a customer to
    post cash equivalents rather than cash in this situation. 7 U.S.C.
    24(a)(3).
    —————————————————————————

        The remaining provisions of proposed Sec.  190.09 include only
    technical changes:
        The header language to the proposed regulation would note that
    property that is connected with certain cross-margining arrangements is
    subject to the provisions of appendix B, framework 1 of part 190. With
    the revisions in the header language to proposed Sec.  190.09, the
    Commission has attempted to clarify that, where certain cross-margining
    arrangements are involved, allocation of customer property will be
    subject not just to proposed Sec.  190.09, but also to the provisions
    in appendix B, framework 1.
        Proposed Sec.  190.09(a)(1), like its analog in current Sec. 
    190.08(a)(1), would define the scope of “customer property” that is
    available to pay the claims of a debtor FCM’s customers. Customers are
    entitled to a priority over other creditors of the debtor with respect
    to distributions of customer property.142 The claims of public
    customers are satisfied ahead of those of non-public customers.
    Proposed Sec.  190.09(a)(1)(i), derived from current Sec. 
    190.08(a)(1)(i), and would list the categories of property that are
    included in the term “customer property,” specifically “cash,
    securities, or other property or the proceeds of such cash, securities,
    or other property received, acquired, or held by or for the account of
    the debtor, from or for the account of a customer, including a non-
    public customer.” Proposed changes to these categories from the
    current regulation text would be as follows (to the extent not
    addressed below, the provisions in proposed Sec.  190.09(a)(1)(i) would
    be the same as those in current Sec.  190.08(a)(1)(i)):
    —————————————————————————

        142 However, consistent with section 766(h) of the Bankruptcy
    Code, certain claims involving administrative expenses connected
    with administering customer property take precedence over customer
    claims. 11 U.S.C. 766(h).
    —————————————————————————

         While current Sec.  190.08(a)(1)(i)(C) refers to warehouse
    receipts, bills of lading, or other documents of title or property held
    or acquired by the debtor to fulfill a commodity contract, proposed
    Sec.  190.09(a)(1)(i)(C) simply would refer back to the definition of
    “physical delivery property” set forth in proposed Sec.  190.01.
         Proposed Sec.  190.09(a)(1)(i)(D) is new, and would
    clarify explicitly that customer property includes cash delivery
    property, as well as any other property that the debtor received as
    payment for a commodity to be delivered to fulfill a commodity contract
    from or for the commodity customer account of a customer.
         Proposed Sec.  190.09(a)(1)(i)(F), which is the analog to
    current Sec.  190.08(a)(1)(i)(E), would state that letters of credit
    are included in customer property, including any proceeds of a letter
    of credit drawn by the trustee pursuant to proposed Sec.  190.04(c)(3).
    Substitute customer property posted by a customer pursuant to proposed
    Sec.  190.04(d)(3) also would be included. While current Sec. 
    190.08(a)(1)(i)(E) also discusses letters of credit, the changes made
    to proposed Sec.  190.09(a)(1)(i)(F) are meant to be consistent with
    the new letters of credit provisions added elsewhere in proposed part
    190.
         Proposed Sec.  190.09(a)(1)(i)(G), which is the analog to
    current Sec.  190.08(a)(1)(i)(F), would delete the phrase “To the
    extent not otherwise included” solely for clarification purposes.
        Proposed Sec.  190.09(a)(1)(ii), derived from current Sec. 
    190.08(a)(1)(ii), would list the categories of “[a]ll cash,
    securities, or other property” that are included in customer property.
    Proposed changes to these categories from the current regulation text
    are as follows (to the extent not addressed below, the provisions in
    proposed Sec.  190.09(a)(1)(ii) would be the same as those in current
    Sec.  190.08(a)(1)(ii)):
         Proposed Sec.  190.09(a)(1)(ii)(A), which is the analog to
    current Sec.  190.08(a)(1)(ii)(A), would clarify that any cash,
    securities, or other property that is segregated for customers on the
    filing date is considered customer property.
         Proposed Sec.  190.09(a)(1)(ii)(D) would make a number of
    changes to its analog in current Sec.  190.08(a)(1)(ii)(D). First,
    proposed Sec.  190.09(a)(1)(ii)(D) would include in customer property
    any “cash, securities, or other property” that was (rather than is,
    as the current regulation text states) property received, acquired or
    held to margin, guarantee, secure, purchase, or sell a commodity
    contract. This change would be made for the sake of logical consistency
    with respect to time references; the reference is to the prior status
    of property that is subsequently recovered by the trustee. Second,
    proposed Sec.  190.09(a)(1)(ii)(D) would delete the phrase “which has
    been withdrawn” as unnecessary. Lastly, proposed Sec. 
    190.09(a)(1)(ii)(D) would add the phrase “or is otherwise recovered by
    the trustee on any other claim or basis,” to account for the fact that
    the trustee may recover such property by means other than their
    avoidance powers and that, no matter the means of recovery, such
    property should be included in customer property.
         Proposed Sec.  190.09(a)(1)(ii)(E), which is the analog to
    current Sec.  190.08(a)(1)(ii)(E), would change the phrase “against a
    customer account” to “against a customer.” Such change is made for
    clarification purposes only.
         Proposed Sec.  190.09(a)(1)(ii)(G) is discussed above as a
    substantive change.
         Proposed Sec.  190.09(a)(1)(ii)(H), which is the analog to
    current Sec.  190.08(a)(1)(ii)(G), would delete the phrase “unless
    including such property in the customer estate would not significantly
    increase the customer estate.” The Commission views this restriction
    in the current regulation text as unnecessary and therefore proposes
    deleting it.
         Proposed Sec.  190.09(a)(1)(ii)(K) is new, and would
    include in customer property any cash, securities, or other property
    which is a payment from an insurer to the trustee arising from or
    related to a claim related to the conversion or misuse of customer
    property. The Commission is of the view that adding this provision will
    ensure that any such cash, securities, or other property would become
    part of the pool of customer property, and is appropriate because the
    funds recovered pursuant to such insurance payment would, absent the
    conversion or misuse, have been available to pay customers.
         Proposed Sec.  190.09(a)(1)(ii)(L) is discussed above as a
    substantive change.
        Proposed Sec.  190.09(a)(2), like its analog in current Sec. 
    190.08(a)(2), would list categories of property that are not included
    in the “customer property” that is available to pay the claims of a
    debtor FCM’s customers. Proposed changes to these categories from the
    current regulation text are as follows (to the extent not addressed
    below, the provisions in proposed Sec.  190.09(a)(2) are the same as
    those in current Sec.  190.08(a)(2)):
         Proposed Sec.  190.09(a)(2)(iii), which is the analog to
    current Sec.  190.08(a)(2)(iii), would state that forward contracts
    will not be included in customer property, but would add “unless such
    contracts are cleared by a clearing organization or, in the case of
    forward contracts treated as foreign futures, a foreign clearing
    organization.” This addition is meant to clarify that any forward
    contracts that are cleared by a clearing organization are included

    [[Page 36032]]

    in customer property, so it is only uncleared forward contracts that
    will be excluded from the pool of customer property.143
    —————————————————————————

        143 Cf. 11 U.S.C. 761(4)(F)(ii) (including within the
    definition of “commodity contract” “with respect to a futures
    commission merchant or clearing organization, any other contract,
    option, agreement, or transaction, in each case, that is cleared by
    a clearing organization.”).
    —————————————————————————

         Proposed Sec.  190.09(a)(2)(iv), which is the analog to
    current Sec.  190.08(a)(2)(iv), would exclude from customer property
    any physical delivery property that is not held by the debtor and is
    delivered or received by a customer to fulfill the customer’s delivery
    obligation under a commodity contract. The definition of the term
    “physical delivery property” in proposed Sec.  190.01 specifically
    would note that any commodities or documents of title that are not held
    by the debtor, and are delivered or received by a customer to fulfill
    the customer’s delivery obligation under a commodity contract outside
    the administration of the estate pursuant to proposed Sec. 
    190.06(a)(2), are not subject to pro rata distribution. Thus, proposed
    Sec.  190.09(a)(2)(iv) simply would import this concept into proposed
    Sec.  190.09 by specifying that such physical delivery property is not
    considered “customer property” for purposes of allocation to
    customers.
         Proposed Sec.  190.09(a)(2)(v), which is the analog to
    current Sec.  190.08(a)(2)(v), would delete the word “maintenance” as
    it appears in the current regulation text, so as to eliminate any
    distinction between initial and maintenance margin. As proposed, the
    provision would not include in customer property any property deposited
    by a customer with the commodity broker, after the entry of an order
    for relief, that is not necessary to meet the initial or maintenance
    margin requirements applicable to that customer’s account(s).
         Proposed Sec.  190.09(a)(2)(viii) is new, and would
    clarify that any money, securities or other property held in a
    securities account to fulfill delivery, under a commodity contract,
    from or for the account of a customer, is excluded from customer
    property. Proposed Sec.  190.09(a)(2)(viii) would be parallel to
    proposed Sec.  190.09(a)(2)(vii) (which would be the same as current
    Sec.  190.08(a)(2)(vii)), which excludes from customer property any
    money, securities or property held to margin, guarantee or secure
    security futures products if held in a securities account. These
    provisions, together, are meant to focus on securities futures
    contracts that are held in securities accounts, and that therefore
    would be protected under SIPA and would not constitute customer
    property for purposes of part 190.
        Proposed Sec.  190.09(a)(3) is new. It would reserve the right of
    the bankruptcy trustee to assert claims against any person to recover
    the shortfall of property enumerated in proposed Sec. Sec. 
    190.09(a)(1)(i)(F) and 190.0(a)(1)(ii)(A) through (L). The purpose of
    proposed Sec.  190.09(a)(3) is to clarify, for the avoidance of doubt,
    that any claims that the trustee may have against a person to recover
    customer property will not be undermined or reduced by the fact that
    the trustee may have been, or might be, able to satisfy customer claims
    by other means.
        Proposed Sec.  190.09(b) is analogous to current Sec. 
    190.08(b).144 The Commission would add the phrase “or attributable
    to” when discussing how to treat property segregated on behalf of or
    attributable to non-public customers. This addition is to clarify that
    this provision would apply both to property that is in the debtor’s
    estate as of the time of the bankruptcy filing as well as property that
    is later recovered by the trustee and becomes part of the debtor’s
    estate on a later date.
    —————————————————————————

        144 Cf. 11 U.S.C. 766(h) (Notwithstanding any other provision
    of this subsection, a customer net equity claim based on a
    proprietary account, as defined by Commission rule, regulation, or
    order, may not be paid either in whole or in part, directly or
    indirectly, out of customer property unless all other customer net
    equity claims have been paid in full.).
    —————————————————————————

        Proposed Sec.  190.09(c) would set forth instructions regarding
    allocation of customer property, including a few changes from its
    analog in current Sec.  190.08(c). Specifically, proposed Sec. 
    190.09(c)(1)(i) would add “or recovered by the trustee on behalf of or
    for the benefit of an account class” when describing property that
    must be allocated to the specific account class. This addition is meant
    to clarify, similar to the addition discussed above with respect to
    proposed Sec.  190.09(b), that this provision regarding allocation of
    customer property would apply both to (1) property that is in the
    debtor’s estate as of the time of the bankruptcy filing as well as (2)
    property that is later recovered by the trustee and becomes part of the
    debtor’s estate on a later date.
        Proposed Sec.  190.09(c)(1)(ii) is new. It would instruct the
    trustee with respect to the treatment of any property remaining after
    payment in full is made to allowed customer claims in a particular
    account class. Specifically, the new text would provide that such
    remaining property shall be allocated in accordance with proposed Sec. 
    190.09(c)(2), which would set forth the order of allocation for any
    customer money, securities and property that cannot be traced to a
    specific customer account class. This new provision would also be
    consistent with the requirement, under section 766(h) of the Bankruptcy
    Code, that customer property must be distributed to customers in
    priority to all other claimants.
        Proposed Sec.  190.09(c)(2) would delete the restrictions that
    “money, securities, and property received from or for the account of
    customers” must also be “on behalf of any account class which is
    received on behalf of the customer estate.” The latter restriction is
    unnecessary: Any “money, securities and property received from or for
    the account of customers” should be treated as customer property, and
    needs to be allocated. Moreover, the reference to allocation as of
    “the primary liquidation date” is removed, because money, securities
    or property may be recovered or marshalled at a variety of times during
    the proceedings.
        Proposed Sec.  190.09(d)(1) and (2) were discussed above as
    substantive changes. Certain other changes to proposed Sec.  190(d)(2),
    and changes to the remaining paragraphs of Sec.  190.09(d), governing
    the distribution of customer property, are technical:
        There would be a few additional changes to Sec.  190.09(d)(2) from
    the text in current Sec.  190.08(d)(2), including (1) replacement of
    the phrase “[a]ny specifically identifiable commodity contract” with
    “[a]ny open commodity contract that is specifically identifiable
    property”; (2) replacement of the term “customer” with “public
    customer”; and (3) replacement of the phrase “adequate security for
    the non-recovery of any overpayments” with “to assure the recovery of
    any overpayments.” These changes are all meant for clarification
    purposes only.
        Proposed Sec.  190.09(d)(3) is derived from current Sec. 
    190.08(d)(3). Both the proposed and current regulations refer to the
    distribution, at the request of the customer, of “like-kind
    securities.” The purpose of this provision is to allow for
    distribution of securities that are interchangeable with the securities
    deposited by the customer.145 However, it would appear that there is
    no commonly understood definition of “like-kind securities.”
    —————————————————————————

        145 In the context of dematerialized securities, it is
    impracticable to identify the exact securities deposited by a
    customer (e.g., Class A Share #12345 of Acme, Inc.).
    —————————————————————————

        The Commission notes that SIPA addresses an analogous issue. SIPA
    section 7(b)(1), 15 U.S.C. 78fff-1(b)(1), provides that “the trustee
    shall deliver

    [[Page 36033]]

    securities to or on behalf of customers to the maximum extent
    practicable in satisfaction of customer claims for securities of the
    same class and series of an issuer . . . .” In order to clarify the
    meaning of like- kind securities, proposed Sec.  190.03(d)(3) would
    adopt this approach, and would read, in relevant part that: The
    customer may request that the trustee purchase or otherwise obtain the
    largest whole number of like-kind securities (i.e., securities of the
    same class and series of an issuer), with a fair market value
    (inclusive of transaction costs) which does not exceed that portion of
    such customer’s allowed net equity claim that constitutes a claim for
    securities, if like-kind securities can be purchased in a fair and
    orderly manner.
        Additional changes in proposed Sec.  190.09(d)(3) from the text of
    current Sec.  190.08(d)(3) are (1) addition of a cross-reference to a
    portion of the definition of “specifically identifiable property” as
    set forth in proposed Sec.  190.01; and (2) replacement of the phrase
    “if that customer had had no open commodity contracts” with “but the
    customer has no open commodity contracts.”
        Proposed Sec.  190.09(d)(4) is substantially similar to current
    Sec.  190.08(d)(4). The only difference is that proposed Sec. 
    190.09(d)(4) would contain updated cross-references to proposed
    Sec. Sec.  190.03(e) and (f), which discuss the customer proof of claim
    form.
        Proposed Sec.  190.09(d)(5) is derived from current Sec. 
    190.08(d)(5). The proposed regulation would contain a few changes to
    the text of current Sec.  190.08(d)(5) that are meant solely for
    clarification, including (1) the addition of the phrase “with respect
    to a particular account class”; (2) the addition of the phrase “in
    such account class”; and (3) updated cross-references.
        Lastly, current Sec.  190.08(d)(6) would be moved to proposed Sec. 
    190.04(b)(1)(ii).
        The Commission requests comment with respect to all aspects of
    proposed Sec.  190.09. Specifically, the Commission seeks comment as to
    whether the proposed revisions to Sec.  190.09(a)(1) would
    appropriately preserve customer property for the benefit of customers.
    In particular, the Commission seeks comment on whether proposed
    Sec. Sec.  190.09(a)(1)(ii)(G), concerning property that other
    regulations require to be placed into segregation, and (L), concerning
    remaining shortfalls, are appropriately crafted. Moreover, is it
    advisable to permit customers to post “substitute customer property”
    rather than “cash” in proposed Sec.  190.09(d)? Is it appropriate to
    clarify the term “like-kind securities” by reference to the concept,
    derived from SIPA, of “securities of the same class and series of an
    issuer?”
    8. Regulation Sec.  190.10: Provisions Applicable to Futures Commission
    Merchants During Business as Usual
        The Commission is proposing to revise current Sec.  190.10, which
    sets forth the provisions generally applicable to FCMs. Certain
    provisions in current Sec.  190.10 would be moved to proposed
    Sec. Sec.  190.02 and 190.03, as described above. Proposed Sec.  190.10
    would contain new and moved provisions that set forth an FCM’s
    obligations during business as usual.
        The most substantive change in proposed Sec.  190.10 concerns
    paragraph (d). This provision is new, and would address letters of
    credit. It would prohibit an FCM from accepting a letter of credit
    unless certain conditions (1) are met at the time of acceptance and (2)
    remain true through its date of expiration.
        First, the trustee must be able to draw upon the letter of credit,
    in full or in part, in the event of a bankruptcy proceeding, the entry
    of a protective decree under SIPA, or the appointment of FDIC as
    receiver pursuant to Title II of the Dodd-Frank Act. Second, if the
    letter of credit is permitted to be and is passed through to a clearing
    organization, the bankruptcy trustee for such clearing organization or
    (if applicable) FDIC must be able to draw upon the letter of credit, in
    full or in part, in the event of a bankruptcy proceeding, or where the
    FDIC is appointed as receiver pursuant to Title II.
        As noted in Sec.  190.00(c)(5), the concept of pro rata
    distribution would apply to all customers, including those posting
    letters of credit. Proposed Sec.  190.04(d)(3) would describe how the
    trustee must treat letters of credit in bankruptcy. The trustee would
    be required to treat the letter of credit in a manner consistent with
    pro rata distribution and be permitted to draw upon the full amount of
    unexpired letters of credit or any portion thereof or treat the letter
    of credit as having been distributed to the customer for purposes of
    calculating entitlements to distribution or transfer. Section 190.10(d)
    is intended to ensure that an FCM’s treatment and acceptance of letters
    of credit during business as usual is consistent with and does not
    preclude the trustee’s treatment of letters of credit in accordance
    with proposed Sec. Sec.  190.00(c)(5) and 190.04(d)(3).146
    —————————————————————————

        146 The Commission notes that, unlike the case in
    ConocoPhillips, 2012 WL 4757866 at *5-*6, it is entirely clear that
    this regulation does not constitute an “exercise of regulatory
    authority” with respect to an “identified banking product.”
    Assuming for the sake of analysis that letters of credit constitute
    identified banking products, the Commission would not exercise any
    regulatory authority over them, and would not specify what should be
    done with any letter of credit. Rather, the Commission simply is
    proposing to exercise regulatory authority over FCMs, and prohibit
    them from accepting certain letters of credit (i.e., those which do
    not meet the criteria specified in proposed Sec.  190.10(d)) as
    collateral for CFTC-regulated futures, options, and swaps.
    —————————————————————————

        The Commission has considered the impact that the implementation of
    this regulation would have on FCMs and their customers, since letters
    of credit are currently in use by the industry.147 Accordingly, upon
    the effective date of the regulation, proposed Sec.  190.10(d) would
    apply only to new letters of credit and customer agreements. In order
    to mitigate the impact of implementing this regulation with respect to
    existing letters of credit and customer agreements, the Commission
    proposes to include a reasonable transition period of one year from the
    effective date until Sec.  190.10(d) would apply to existing letters of
    credit and customer agreements.
    —————————————————————————

        147 The Commission notes that the Joint Audit Committee
    (“JAC”) forms for an Irrevocable Standby Letter of Credit (both
    Pass-Through and Non Pass-Through) would appear to be consistent
    with the requirements of proposed Sec.  190.10(d).
        See https://www.cmegroup.com/clearing/audit/files/rm_FU_Irrevocable_Standby_LOC920.pdf; https://www.cmegroup.com/clearing/audit/files/S_irrstandbynonpassthroughloc.pdf. Based on
    staff discussions with industry participants, the Commission
    understands that most letters of credit currently in use by the
    industry follow the JAC forms.
    —————————————————————————

        Proposed Sec.  190.10(a) is also new. It would note that an FCM
    would be required to maintain current records relating to its customer
    accounts, pursuant to Sec. Sec.  1.31, 1.35, 1.36, and 1.37 of this
    chapter, and in a manner that would permit them to be provided to
    another FCM in connection with the transfer of open customer contracts
    of other customer property. This provision would recognize that current
    and accurate records are imperative in arranging for the transfer of
    customer contracts and other property, both for the trustee of the
    estate of the defaulter and for an FCM that is accepting the
    transfer.148
    —————————————————————————

        148 As the ABA Cover Note observes:
        Paragraph (a) requires an FCM to maintain current records
    relating to its customer accounts, and provides that those records
    may be provided to another FCM to facilitate transfer of open
    customer positions. The provision is not intended to expand an FCM’s
    recordkeeping obligations under other Commission rules. It is
    intended to emphasize the importance of current and accurate records
    for an FCM that is accepting the transfer of customer positions and
    property from the debtor FCM.
        ABA Cover Note at 15.

    —————————————————————————

    [[Page 36034]]

        Proposed Sec.  190.10(b) would concern the designation of hedging
    accounts. It would incorporate concepts contained in current Sec. Sec. 
    190.04(e), 190.06(d), and the current Bankruptcy appendix form 3
    instructions. As noted below, for purposes of this regulation, a
    customer would not need to provide, and an FCM would not be required to
    judge, evidence of hedging intent for purposes of bankruptcy treatment.
    Rather, proposed Sec.  190.10(b) would permit the FCM to treat the
    account as a hedging account for such purposes based solely upon the
    written record of the customer’s representation. Hedging treatment for
    these bankruptcy purposes would not be determinative for any other
    purpose.
        Proposed Sec.  190.10(b)(1) would require an FCM to provide a
    customer an opportunity to designate an account as a hedging account
    when the customer first opens the account, rather than when the
    customer undertakes its first hedging contract, as specified in current
    Sec.  190.06(d)(1). Giving this opportunity to each customer at the
    outset would provide the opportunity to allow for clear instruction at
    a point when both customer and FCM are focused on the specifics of the
    relationship between them, and would enhance the ability of the FCM
    properly to account for the customer property. The proposed regulation
    would also require, consistent with current Sec.  190.06(d)(2), that
    the FCM indicate prominently in its accounting records for each
    customer account whether the account is designated as a hedging
    account.
        Proposed Sec.  190.10(b)(2) would set forth the requirements for an
    FCM to treat an account as a hedging account: If, but only if, the FCM
    obtains the customer’s written representation that the customer’s
    trading in the account will constitute hedging as defined under any
    relevant Commission rule or rule of a DCO, DCM, SEF, or FBOT. This is
    in lieu of obtaining written hedging instructions as required under
    current Sec.  190.06(d).149
    —————————————————————————

        149 See ABA Cover Note at 16.
    —————————————————————————

        In order to avoid the significant burden that would be associated
    with requiring FCMs to re-obtain hedging instructions for existing
    accounts, proposed Sec.  190.10(b)(3) would provide that the
    requirements of paragraph (b)(1) and (2) do not apply to commodity
    contract accounts opened prior to the effective date of these revisions
    to part 190. Rather, the regulation would recognize expressly that an
    FCM may continue to designate existing accounts as hedging accounts
    based on written hedging instructions obtained under former Sec. 
    190.06(d).
        Finally, proposed Sec.  190.10(b)(4) would permit an FCM to
    designate an existing futures, foreign futures or cleared swaps account
    of a particular customer as a hedging account, provided that the FCM
    obtains the representation required under proposed paragraph (b)(2)
    from such customer. As noted above with respect to Sec.  190.10(b)(2),
    this treatment only would be relevant for purposes of hedging account
    treatment in bankruptcy.
        Proposed Sec.  190.10(c) is new. It would address the establishment
    of delivery accounts during business as usual.150 As recognized in
    current Sec.  190.05 (and, in particular, current Sec.  190.05(a)(2))
    and the definition in current Sec.  190.01(ll)(3), (4), and (5), when a
    commodity contract is in the delivery phase, or when a customer has
    taken delivery of commodities that are physically delivered, associated
    property may be held in a “delivery account” rather than in the
    segregated accounts pursuant to, e.g., Sec.  1.20 or Sec.  22.2.151
    The Commission is proposing to recognize that when an FCM facilitates
    delivery under a customer’s physical delivery contract, and such
    delivery is effected outside of a futures account, foreign futures
    account, or cleared swaps account, it must be effected through (and the
    associated property held in) a delivery account. If, however, the
    commodity that is subject to delivery is a security, the FCM may effect
    delivery through (and the property may be held in) a securities
    account. The regulation would clarify that the property must be held in
    one of these types of accounts. The Commission is proposing to address
    the establishment of delivery accounts during business as usual because
    of their importance during bankruptcy, as addressed in proposed Sec. 
    190.06.
    —————————————————————————

        150 See proposed Sec.  190.06 regarding the making and taking
    of deliveries during bankruptcy.
        151 See 48 FR at 8731 (Property segregated on behalf of a
    delivery account, under the allocation provisions, will be allocated
    only to that account class. This means that although this property
    will not be distributed to the extent its value exceeds a claimant’s
    net equity claim and will be distributed pro rata among claimants
    with delivery claims which are of the same class, it will not be
    diluted by other types of customer claims. This solution reduces the
    dilution effect of proration without offending the basic principle
    of proration of equivalent claims.).
    —————————————————————————

        Proposed 190.10(d) was addressed above as a substantive change.
        Proposed Sec.  190.10(e) would concern the disclosure statement for
    non-cash margin. It is derived from current Sec.  190.10(c), with
    corresponding changes to cross-references. The reference in the
    required disclosure statement to notice (in the event of bankruptcy) by
    publication would be deleted, consistent with the changes to notice
    provisions in proposed Sec.  190.03(a)(2).
        The Commission notes, however, that the ABA Committee proposed to
    delete entirely the requirement that FCMs provide this disclosure
    statement, on the basis that the requirement was originally imposed in
    order to address a concern that customers might otherwise challenge pro
    rata distribution of non-cash collateral on the basis that they did not
    consent to such treatment. The ABA Committee stated that it “does not
    believe that such a risk exists today under prevailing bankruptcy
    law.”
        Do commenters believe that requiring this disclosure is helpful,
    either legally (with respect to pro rata distribution) or practically
    (with respect to enhancing customer understanding)? Should the form of
    disclosure be changed in some manner? Or do commenters believe that
    this requirement should be deleted?
        The Commission also requests comment with respect to all other
    aspects of proposed Sec.  190.10. Specifically, the Commission seeks
    comment with respect to the impact of proposed Sec.  190.10(b)
    regarding the designation of hedging accounts and proposed Sec. 
    190.10(c) regarding the establishment of delivery accounts during
    business as usual.
        The Commission also specifically seeks comment on proposed Sec. 
    190.10(d), regarding changes to the business as usual requirements for
    acceptance of letters of credit, and in particular seeks comment as to
    (a) whether its understanding is correct that most letters of credit
    currently in use by the industry follow the JAC forms, (b) the impact
    of additional requirements concerning letters of credit (as well as any
    alternative methods of achieving the goal of treating customers posting
    letters of credit consistent with the treatment of other customers),
    and (c) whether the proposed one year transition period is reasonable.

    C. Subpart C–Clearing Organization as Debtor

        The Commission is proposing to promulgate a new subpart C of part
    190 (proposed Sec. Sec.  190.11-190.19), addressing the currently
    unprecedented context of a clearing organization as debtor.
    1. Regulation Sec.  190.11: Scope and Purpose of Subpart C
        When originally proposing part 190 in 1981, the Commission proposed
    to (and ultimately did) forego providing generally applicable rules for
    the

    [[Page 36035]]

    bankruptcy of a clearing organization.152 The Commission explained
    that it had proposed no other rules with respect to the operation of
    clearing organization debtors–other than proposing that all open
    commodity contracts, even those in a deliverable position, be
    liquidated in the event of a clearing organization bankruptcy–because
    the Commission viewed it as highly unlikely that an exchange could
    maintain a properly functioning futures market in the event of the
    collapse of its clearing organization. The Commission noted that, under
    section 764(b)(2) of the Bankruptcy Code, it had the power to permit a
    distribution of the proceeds of a clearing organization liquidation
    free from the avoidance powers of the trustee. The Commission further
    explained that it was not proposing a general rule, because the
    bankruptcy of a clearing organization would be unique. Instead, the
    Commission was inclined to take a case-by-case approach with respect to
    clearing organizations, given the potential for market disruption and
    disruption of the nation’s economy as a whole, in the case of a
    clearing organization bankruptcy, as well as the desirability of the
    Commission’s active participation in developing a means of meeting such
    an emergency.153
    —————————————————————————

        152 At the time, the definition of clearing organization in
    section 761(2) of the Bankruptcy Code was an “organization that
    clears commodity contracts on, or subject to the rules of, a
    contract market or board of trade. See Public Law 95-598 (1978), 92
    Stat 2549.
        153 46 FR 57535, 57545 (Nov. 24, 1981).
    —————————————————————————

        Much has changed in the intervening 38 years. Markets move much
    more quickly, and thus the importance of quick action in respect to the
    bankruptcy of a clearing organization has increased. The Commodity
    Futures Modernization Act established DCOs as a separate registration
    category.154 The bankruptcy of a clearing organization would remain
    unique–it remains the case that no clearing organization registered
    with the Commission has ever entered bankruptcy–and thus the need for
    significant flexibility remains, but the balance has shifted towards
    establishing ex ante the approach that would be taken.
    —————————————————————————

        154 Commodity Futures Modernization Act of 2000 Public Law
    106-554 section 1(a)(5); Appendix E, section 112(f).
    —————————————————————————

        Two clearing organizations for which the Commission has been
    designated the agency with primary jurisdiction have been designated as
    systemically important to the United States financial system pursuant
    to title VIII of Dodd-Frank.155 If any clearing organization were to
    approach insolvency, it is possible, though not certain, that such an
    entity would be resolved pursuant to Title II of Dodd-Frank.156
    —————————————————————————

        155 See Dodd-Frank section 804 (designation of systemic
    importance), section 803(8) (definition of “supervisory agency”),
    12 U.S.C. 5463, 5462(8). These are CME and ICE Clear Credit. A third
    clearing organization (Options Clearing Corporation) has also been
    so designated, but the SEC is the supervisory agency in that case.
        156 Resolution under Title II would require a recommendation
    concerning factors specified in section 203(a)(2) of Dodd-Frank, 12
    U.S.C. 5383(a)(2), by a 2/3 majority of the members then serving
    of each of the Board of Governors of the Federal Reserve System and
    of the FDIC, followed by a determination concerning a related set of
    factors specified in section 203(b), 12 U.S.C. 5383(b), by the
    Secretary of the Treasury in consultation with the President. Thus,
    the choice of resolution versus bankruptcy for a DCO that is, in the
    terminology of Dodd-Frank, “in default or in danger of default,”
    see Dodd-Frank section 203(c)(4), 12 U.S.C. 5383(c)(4), cannot be
    considered certain.
        It is, however, clear that Title II applies to clearing
    organizations. See, e.g., Dodd-Frank section 210(m), 12 U.S.C.
    5390(m) (applying “the provisions of subchapter IV of chapter 7 of
    the bankruptcy code” to “member property” of “commodity
    brokers”). Pursuant to section 761(16) of the Bankruptcy Code,
    “member property” applies only to a debtor that is a “clearing
    organization.” 11 U.S.C. 761(16).
    —————————————————————————

        Administration of a resolution under Title II of Dodd-Frank
    depends, in part, on clarity as to entitlements under chapter 7 of the
    Bankruptcy Code. Specifically, section 210(a)(7)(B) of Dodd-Frank 157
    provides with respect to claims against the covered financial agency in
    resolution, that “a creditor shall, in no event, receive less than the
    amount that the creditor is entitled to under paragraphs (2) and (3) of
    subsection (d), as applicable.” Tracing to the cross-referenced
    subsection, section 210(d)(2) 158 provides that the maximum liability
    of the FDIC to a claimant is the amount that the claimant would have
    received if the FDIC had not been appointed receiver, and (instead),
    the covered financial company had been liquidated under chapter 7 of
    the Bankruptcy Code.159 Thus, it is important to have a clear
    “counterfactual” that establishes what creditors would be entitled to
    in the case of the liquidation of a clearing organization under chapter
    7 (subchapter IV) of the Bankruptcy Code.
    —————————————————————————

        157 12 U.S.C. 5390(a)(7)(B).
        158 12 U.S.C. 5390(d)(2).
        159 For the sake of completeness, it should be noted that
    section 210(d)(2), 12 U.S.C. 5390(d)(2), provides, as an additional
    comparator, “any similar provision of State insolvency law
    applicable to the covered financial company.” Given Federal
    regulation of DCOs, it would appear that this phrase is
    inapplicable. Similarly, section 210(d)(3), 12 U.S.C. 5390(d)(3),
    which refers to covered financial companies that are brokers or
    dealers resolved by SIPC, is also inapplicable here, given the
    inconsistency in being both a DCO and a broker-dealer.
    —————————————————————————

        Accordingly, proposed Sec.  190.11 would establish that this
    subpart C to part 190 applies to proceedings under subchapter IV to
    chapter 7 of the Bankruptcy Code where the debtor is a clearing
    organization.
        The Commission requests comment regarding the proposed scope of
    subpart C of part 190 as set forth in proposed Sec.  190.11. Do
    commenters support or oppose the decision to establish an explicit,
    bespoke set of regulations for the bankruptcy of a clearing
    organization?
    2. Regulation Sec.  190.12: Required Reports and Records
        The operations of a clearing organization are extremely time-
    sensitive. For example, Sec.  39.14 requires that a clearing
    organization complete settlement with each clearing member at least
    once every business day. It is thus critical that the Commission
    receive notice of a DCO bankruptcy in an extraordinarily rapid manner,
    and that the trustee that is appointed (and the Commission) are rapidly
    provided with critical documents, as discussed further below.
        Proposed Sec.  190.12(a)(1) would be analogous to proposed Sec. 
    190.03(a), in that it would provide instructions regarding how to give
    notice to the Commission and to a clearing organization’s members,
    where such notice would be required under subpart C of proposed part
    190.160 For a discussion of how these notice provisions differ from
    those in current part 190, please refer to the discussion of proposed
    Sec.  190.03(a).161
    —————————————————————————

        160 While proposed Sec.  190.03(a)(2) would apply to notice to
    an FCM’s customers, and proposed Sec.  190.12(a)(1)(ii) would apply
    to notice to a clearing organization’s members, the means of giving
    notice are identical.
        161 See section II.B.1 above.
    —————————————————————————

        Proposed Sec.  190.12(a)(2) would require the clearing organization
    to notify the Commission either in advance of, or at the time of,
    filing a petition in bankruptcy (or within three hours of receiving
    notice of a filing of an involuntary petition against it).162 Notice
    would need to include the filing date and the court in which the
    proceeding has been or will be filed. While the clearing organization
    would also need to provide notice of the docket

    [[Page 36036]]

    number, if the docket number is not immediately assigned, that
    information would be provided separately as soon as available.
    —————————————————————————

        162 Commodity broker bankruptcies are rare, and outside the
    experience of most chapter 7 trustees, who are chosen from a panel
    of private trustees eligible to serve as such for all chapter 7
    cases. See generally 11 U.S.C. 701(a)(1), 28 U.S.C. 586(a)(1).
    Historically, Commission staff, on being notified of an impending
    commodity broker bankruptcy, have worked with the office of the
    relevant regional United States Trustee, see generally 28 U.S.C. 581
    et seq., to identify, and have then briefed, the chapter 7 trustee
    that would then be appointed. This would be even more important in
    the context of a clearing organization bankruptcy.
    —————————————————————————

        It is also important to permit the trustee to begin to understand
    the business of the clearing organization as soon as practicable, and
    within hours. Accordingly, proposed Sec.  190.12(b)(1) would require
    the clearing organization to provide to the trustee copies of each of
    the most recent reports filed with the Commission under Sec.  39.19(c),
    which includes Sec.  39.19(c)(1) (daily reports, including initial
    margin required and on deposit by clearing member, daily variation and
    end-of-day positions (by member, by house and customer origin), and
    other daily cash flows), Sec.  39.19(c)(2) (quarterly reports,
    including of financial resources), Sec.  39.19(c)(3) (annual reporting,
    including audited financial statements and a report of the chief
    compliance officer), Sec.  39.14(c)(4) (event-specific reporting, which
    would include the most up-to-date version of any recovery and wind-down
    plans the debtor maintained pursuant to Sec.  39.39(b),163 and which
    may well include events that contributed to the clearing organization’s
    bankruptcy), and Sec.  39.19(c)(5) (reporting specially requested by
    the Commission or, by delegated authority, staff). In order to provide
    the trustee with an initial overview of the business and status of the
    clearing organization, with respect to quarterly, annual, or event-
    specific reports, the clearing organization would be required to
    provide any such reports filed during the preceding 12 months. These
    reports would need to be provided to the trustee as soon as
    practicable, but in any event no later than three hours following the
    later of the commencement of the proceeding or the appointment of the
    trustee. It is the Commission’s expectation that in the event of an
    impending bankruptcy event, staff at the DCO would, as soon as
    practicable, be preparing these materials for transmission to the
    trustee.
    —————————————————————————

        163 See Sec.  39.19(c)(4)(xxiv).
    —————————————————————————

        Similarly, proposed Sec.  190.12(b)(2) would require the debtor
    clearing organization, in the same time-frame, to provide the trustee
    and the Commission with copies of the default management plan and
    default rules and procedures maintained by the debtor pursuant to Sec. 
    39.16 and, as applicable, Sec.  39.35. While some of this information
    may have previously been filed with the Commission pursuant to Sec. 
    39.19, it is important that the Commission have readily available what
    the clearing organization believes are the most up-to-date versions of
    these documents. Moreover, given that these documents must be provided
    to the trustee, providing copies to the Commission should impose
    minimal additional burden (particularly if the documents are provided
    in electronic form).
        Current Sec.  39.20(a) requires a DCO to maintain records of all
    activities related to its business as such, and sets forth a non-
    exclusive list of the records that are included in that term. To enable
    the trustee and the Commission further to understand the business of
    the clearing organization, proposed Sec.  190.12(c) would require the
    clearing organization to make copies of such records available to the
    trustee and to the Commission no later than the business day after the
    commencement of the proceeding. In order to inform the trustee and the
    Commission better concerning the enforceability in bankruptcy of the
    clearing organization’s rules and procedures, the clearing organization
    is similarly required to make available any opinions of counsel or
    other legal memoranda provided to the debtor, by inside or outside
    counsel, in the five years preceding the commencement of the
    proceeding, relating to the enforceability of those arrangements in the
    event of an insolvency proceeding involving the debtor.164
    —————————————————————————

        164 The trustee of a corporation in bankruptcy controls the
    corporation’s attorney-client privilege for pre-bankruptcy
    communications. Commodity Futures Trading Comm’n v. Weintraub, 471
    U.S. 343 (1985). Production to the Commission pursuant to the
    proposed regulation would not waive that privilege (although
    voluntary production would). See, e.g., U.S. v. de la Jara, 973 F.2d
    746, 749 (9th Cir. 1992) (“a party does not waive the attorney-
    client privilege for documents which he is compelled to produce”)
    (emphasis in original); Office of Comptroller of the Currency
    Interpretative Letter, 1991 WL 338409 (With respect to “internal
    Bank documents” that are “subject to the attorney-client
    privilege” and are “requested by OCC examiners for their use
    during examinations of the Bank,” OCC “has the power to request
    and receive materials from national banks in carrying out its
    supervisory duties. It follows that national banks must comply with
    such requests. That being the case, it is our position that when
    national banks furnish documents to us at our request they are not
    acting voluntarily and do not waive any attorney-client privilege
    that may attach to such documents.”).
    —————————————————————————

        The Commission requests comment with respect to all aspects of
    proposed Sec.  190.12. In particular, are the reports and records
    identified in proposed Sec.  190.12 to be provided to the Commission
    useful and appropriate? Are the proposed time deadlines appropriate?
    Are there additional reports and records that should be included in the
    regulation?
    3. Regulation Sec.  190.13: Prohibition on Avoidance of Transfers
        Proposed Sec.  190.13 would implement section 764(b) of the
    Bankruptcy Code, protecting certain transfers from avoidance (sometimes
    referred to as “claw-back”), with respect to a debtor clearing
    organization. It is analogous to proposed Sec.  190.07(e) (and current
    Sec.  190.06(g)), with certain changes. Specifically, while proposed
    Sec.  190.07(e) approves FCM transfers unless they are explicitly
    disapproved, proposed Sec.  190.13 requires explicit Commission
    approval for DCO transfers. While an FCM can transfer only a portion of
    its customer positions, a DCO must maintain a balanced book, and thus
    must transfer all of its customer positions (or at least all positions
    in a given product set). Given the importance of transferring open
    commodity contracts and the property margining such contracts in the
    event of a DCO bankruptcy, the Commission is proposing that any such
    transfer should require explicit Commission approval.
        Thus, whereas current Sec.  190.06(g)(1)(iii) provides that a pre-
    relief transfer by a clearing organization cannot be avoided as long as
    it is not disapproved by the Commission, proposed Sec.  190.13(a) would
    instead provide that a pre-relief transfer of open commodity contracts
    and the property margining or securing such contracts cannot be avoided
    as long as it was approved by the Commission, either before or after
    such transfer. Similarly, while current Sec.  190.06(g)(2)(i) provides
    (for all commodity brokers, including clearing organizations) that a
    post-relief transfer of a customer account cannot be avoided as long as
    it is not disapproved by the Commission, proposed Sec.  190.13(b) would
    instead provide that a post-relief transfer of open commodity contracts
    and the property margining or securing such contracts made to another
    clearing organization cannot be avoided as long as it was approved by
    the Commission, either before or after such transfer.
        The Commission requests comment with respect to all aspects of
    proposed Sec.  190.13. In particular, do commenters agree with the
    approach of requiring explicit approval of transfers by clearing
    organization debtors?
    4. Regulation Sec.  190.14: Operation of the Estate of the Debtor
    Subsequent to the Filing Date
        Proposed Sec.  190.14(a) would provide discretion to the trustee to
    design the proof of claim form and to specify the information that is
    required. Broad discretion would appear to be appropriate, given the
    bespoke nature of a clearing organization bankruptcy.
        Proposed Sec.  190.14(b) addresses continued operation of a DCO.
    Proposed Sec.  190.14(b)(1) would provide that, after

    [[Page 36037]]

    the order for relief, the debtor clearing organization would cease
    making calls for either variation or initial margin, except as
    otherwise provided in Sec.  190.14(b).
        Proposed Sec.  190.14(b)(2) would allow for the possibility that
    the trustee believes that continued operation of the debtor clearing
    organization would be both useful and practicable, in which event the
    trustee may request permission of the Commission to operate the
    clearing organization for up to six calendar days after the order for
    relief, to the extent practicable, in accordance with the rules and
    procedures of the debtor, and with respect to open commodity contracts
    of the debtor.
        In this context, usefulness would be addressed in paragraph
    (b)(2)(i), namely that such continued operation would facilitate
    accomplishing promptly (the outer limit of which would be no more than
    six calendar days) either (A) transfer of the clearing operations to
    another DCO or (B) resolution of the DCO pursuant to Title II of Dodd-
    Frank. (i.e., that such transfer or entry into a Title II resolution
    proceeding was not practicable to accomplish before the order for
    relief, but could be accomplished within a brief period thereafter).
        Practicability would be addressed in paragraph (b)(2)(ii). If the
    rules of the debtor clearing organization compel the termination of all
    or substantially all outstanding contracts under the relevant
    circumstances (e.g., upon an order for relief), then continued
    operation would not be practicable. Moreover, cooperation by the
    members of the clearing organization would be required for
    practicability. Thus, it would be necessary that all (or substantially
    all) of the members of the clearing organization (other than those
    which are themselves subject to a bankruptcy proceeding) are both able
    and willing to make variation payments as owed during the temporary
    timeframe.
        The reason for the six calendar day outer limit is that six
    calendar days is one less than seven calendar days, the maximum under
    section 764(b) of the Bankruptcy Code.
        Proposed Sec.  190.14(b)(3) would require the Commission, upon
    receiving such a request, to consider it promptly (as a practical
    matter, a failure to grant such a request within a relatively small
    number of hours during business days would likely make continued
    operation impracticable). Where the Commission is persuaded that the
    trustee’s conclusions with respect to usefulness and practicability are
    well grounded (a standard that is intended to grant the Commission wide
    discretion in making a decision, which discretion appears necessary in
    light of the unprecedented and exigent circumstances), the Commission
    may grant the request. The proposed regulation would also permit the
    Commission to grant the request for fewer calendar days than the
    trustee has requested, but then to renew permission to continue
    operations, so long as the total calendar days of continued operation
    total no more than six.
        Proposed Sec.  190.14(c)(1) would require the trustee to liquidate,
    no later than seven calendar days after the order for relief, all open
    commodity contracts that had not earlier been terminated, liquidated or
    transferred. However, such liquidation would not be required if the
    Commission (whether at the request of the trustee or sua sponte)
    determines that such liquidation would be inconsistent with the
    avoidance of systemic risk 165 or, in the expert judgment of the
    Commission, would not be in the best interests of the debtor clearing
    organization’s estate.166 The trustee would be directed to carry out
    such liquidation in accordance with the rules and procedures of the
    debtor clearing organization, to the extent applicable and practicable.
    —————————————————————————

        165 See section 3(b) of the CEA, 7 U.S.C. 5(b) (It is the
    purpose of the CEA to ensure the avoidance of systemic risk.).
        166 See section 20(a)(3) of the CEA, 7 U.S.C. 24(a)(3)
    (Notwithstanding title 11, the Commission may provide with respect
    to a commodity broker that is a debtor the method by which the
    business of such commodity broker is to be conducted or liquidated
    after the date of the filing of the petition.).
    —————————————————————————

        Proposed Sec.  190.14(c)(2) would, analogously to existing Sec. 
    190.08(d)(3) and proposed Sec.  190.09(d)(3), permit the trustee to,
    rather than liquidating securities and making distributions in the form
    of cash, instead make distributions to members in the form of
    securities that are equivalent (i.e., securities of the same class and
    series of an issuer) to those that were originally delivered to the
    debtor by the clearing member or such member’s customer.
        Proposed Sec.  190.14(d) would require the trustee to use
    reasonable efforts to compute the funded balance of each customer
    account immediately prior to the distribution of any property in the
    account, “which shall be as accurate as reasonably practicable under
    the circumstances, including the reliability and availability of
    information.” Proposed Sec.  190.14(d) is analogous to proposed Sec. 
    190.05(b), modified for the context of a DCO bankruptcy. Similarly to
    proposed Sec.  190.05(b), the Commission’s objective in proposed Sec. 
    190.14(d) would be to provide the bankruptcy trustee with the latitude
    to act reasonably given the circumstances they are confronted with,
    recognizing that information may be more reliable and/or accurate in
    some insolvency situations than in others. However, at a minimum, the
    trustee would be required to calculate each customer’s funded balance
    prior to distributing property, to achieve an appropriate allocation of
    property between customers.
        The Commission requests comment with respect to all aspects of
    proposed Sec.  190.14. In particular, the Commission seeks comment on
    the framing of the concepts of usefulness and practicability in the
    context of permitting the trustee to continue to operate a DCO in
    insolvency, in accordance with proposed Sec.  190.14(b)(2), in order
    to, facilitate the transfer of clearing operations to another DCO or
    placing the debtor DCO into resolution pursuant to Title II of Dodd-
    Frank. Is there a better way to frame either of these terms? Moreover,
    is it appropriate to provide for the possibility that the trustee may
    be permitted to delay liquidating contracts?
    5. Regulation Sec.  190.15: Recovery and Wind-Down Plans; Default Rules
    and Procedures
        Proposed Sec.  190.15 would favor implementation of the debtor’s
    default rules and procedures maintained pursuant to Sec.  39.16 and, as
    applicable, Sec.  39.35, and any recovery and wind-down plans
    maintained by the debtor and filed with the Commission, pursuant to
    Sec. Sec.  39.39 and 39.19, respectively. Section 39.16 requires each
    DCO to, among other things, “adopt rules and procedures designed to
    allow for the efficient, fair, and safe management of events during
    which clearing members become insolvent or default on the obligations
    of such clearing members to the” DCO. In adopting Sec.  39.35, the
    Commission explained that it “was designed to protect SIDCOs, Subpart
    C DCOs, their clearing members, customers of clearing members, and the
    financial system more broadly by requiring SIDCOs and Subpart C DCOs to
    have plans and procedures to address credit losses and liquidity
    shortfalls beyond their prefunded resources.” 167 Similarly, in
    adopting Sec.  39.39, the Commission explained that it is “designed to
    protect the members of such DCOs and their customers, as well as the
    financial system more broadly, from the

    [[Page 36038]]

    consequences of a disorderly failure of such a DCO.” 168
    —————————————————————————

        167 78 FR 72476, 72492 (December 2, 2013).
        168 Id. at 72494.
    —————————————————————————

        Proposed Sec.  190.15(a) would provide that the trustee shall not
    avoid or prohibit any action taken by the DCO debtor that was
    reasonably within the scope of, and was provided for, in any recovery
    and wind-down plans maintained by the debtor and filed with the
    Commission, subject to section 766 of the Code. This is intended to
    provide finality and legal certainty to actions taken by a DCO to
    implement its recovery and wind-down plans, which are developed subject
    to Commission regulations.
        Proposed Sec.  190.15(b) would instruct the trustee to implement,
    in consultation with the Commission, the debtor DCO’s default rules and
    procedures maintained pursuant to Sec.  39.16, and, as applicable,
    Sec.  39.35, as well as any termination, close-out and liquidation
    provisions included in the rules of the debtor, subject to the
    trustee’s reasonable discretion and to the extent that implementation
    of such default rules and procedures is practicable.
        Similarly, proposed Sec.  190.15(c) would instruct the trustee to,
    in consultation with the Commission, take actions in accordance with
    any recovery and wind-down plans maintained by the debtor and filed
    with the Commission, to the extent reasonable and practicable. These
    proposed regulations are intended to provide the trustee, who will need
    quickly to take action to manage the DCO (and any member default), with
    a roadmap to manage such action, which roadmap is based on the rules,
    procedures, and plans the DCO has developed in advance, and subject to
    the requirements of the Commission’s regulations.
        The Commission requests comment with respect to all aspects of
    proposed Sec.  190.15. In particular, is it appropriate to steer the
    trustee towards implementation of the debtor DCO’s default rules and
    procedures and recovery and wind-down plans in proposed Sec.  190.15(b)
    and (c)? Are the qualifiers concerning discretion, reasonability and
    practicability appropriate and sufficient?
    6. Regulation Sec.  190.16: Delivery
        Proposed Sec.  190.16(a) would instruct the trustee to use
    reasonable efforts to facilitate and cooperate with completion of
    delivery in a manner consistent with proposed Sec.  190.06(a) (which
    would instruct trustees of FCMs in bankruptcy to foster delivery where
    a contract has entered delivery phase before the filing date or where
    it is not practicable for the trustee to liquidate a contract moving
    into delivery position after the filing date) and the pro rata
    distribution principle addressed in proposed Sec.  190.00(c)(5). As
    noted in discussing proposed Sec.  190.06(a), it is important to
    address deliveries to avoid disruption to the cash market for the
    commodity and to avoid adverse consequences to parties that may be
    relying on delivery taking place in connection with their business
    operations. However, given the potential for competing demands on the
    trustee’s resources, including time, this instruction would be limited
    to requiring “reasonable efforts.”
        Proposed Sec.  190.16(b) would carry forward, to the context of a
    DCO in bankruptcy, the delineation between the physical delivery
    property account class and the cash delivery property account class
    that would be set forth in proposed Sec.  190.06(b). Specifically,
    physical delivery property that is held in delivery accounts for the
    purpose of making delivery would be treated as physical delivery
    property, as are the proceeds from any sale of such property. By
    contrast, cash delivery property that is held in delivery accounts for
    the purpose of paying for delivery would be treated as cash delivery
    property, as would any physical delivery property for which delivery is
    subsequently taken.
        The Commission requests comment with respect to all aspects of
    proposed Sec.  190.16. Specifically, the Commission seeks comment as to
    whether it is appropriate, in the context of a clearing organization
    bankruptcy, to separate the physical delivery account class from the
    cash delivery account class. If so, should the physical delivery
    account class for a clearing organization be further divided into
    separate sub-classes for each type of physical delivery property? If
    so, what should be the definition of a “type of physical delivery
    property”? Alternatively, might it be more prudent in the context of a
    clearing organization to treat the delivery account class as a single,
    undivided account class?
    7. Regulation Sec.  190.17: Calculation of Net Equity
        Proposed Sec.  190.17(a) with respect to net equity is parallel to
    proposed Sec.  190.18(a) with respect to customer property. Proposed
    Sec.  190.17(a)(1) would confirm that a member of a clearing
    organization may have claims in separate capacities, that is, claims on
    behalf of its public customers (customer account) and claims on behalf
    of itself and its non-public customers (affiliates) (house account),
    and, within those separate customer classes, further separated by
    account class. The member would be treated as part of the public
    customer class with respect to claims based on commodity customer
    accounts carried as “customer accounts” by the clearing organization
    for the benefit of the member’s public customers, and as part of the
    non-public customer class with respect to claims based on its house
    account. Proposed Sec.  190.17(a)(2) would direct that net equity shall
    be calculated separately with respect to each customer capacity and,
    within such customer capacity, by account class.
        Proposed Sec.  190.17(b)(1) would confirm that the calculation of
    members’ net equity claims–and, thus, the allocation of losses among
    members and their accounts–is based on the full application of the
    debtors’ loss allocation rules and procedures, including the default
    rules and procedures referred to in Sec. Sec.  39.16 and 39.35. These
    pre-existing loss allocation rules and procedures are the contract
    between and among the members and the DCO, and thus the Commission
    preliminarily believes it is appropriate to give them effect regardless
    of the bankruptcy of the DCO–and regardless of the timing of any such
    bankruptcy (i.e., regardless of whether such loss allocation rules and
    procedures have been applied fully prior to the order for relief).
    While certain DCOs may have discretion, consistent with governance
    procedures, as to precisely when they call for members to meet
    assessment obligations, the Commission believes that allocation of
    losses should not depend on the happenstance of when default management
    or recovery tools were used–e.g., when assessments were called for, or
    when such assessments were met.
        DCOs also often have rules to “reverse the waterfall”–that is,
    to allocate to members’ accounts recoveries on claims against
    defaulting members 169 in reverse order of the allocation of the
    losses.170 Proposed Sec.  190.17(b)(2) would

    [[Page 36039]]

    implement such rules in bankruptcy, that is, to adjust members’ net
    equity claims (and the basis for distributing any such recoveries) in
    light of such recoveries. This regulation would similarly implement DCO
    loss allocation rules in other contexts, for example, (i) rights to
    portions of mutualized default resources that are either prefunded or
    assessed and collected, and, in either event, not used, as well as (ii)
    rules that would allocate to members recoveries against third parties
    for non-default losses that are, under the DCO’s rules, originally
    borne by members.
    —————————————————————————

        169 These recoveries might be based on prosecution of such
    claims in an insolvency or receivership proceeding, or, in the
    reasonable commercial judgment of the DCO, the settlement or sale of
    such claims.
        170 For example, if the DCO rules allocate losses in excess of
    the defaulters’ available resources first to the DCO’s own
    contributions, second to the mutualized default fund contributions
    of members other than the defaulter, third to assessments, and
    fourth to gains-based haircutting (pro rata), all of which tools
    were in fact used in a particular case, then recoveries on claims
    against the defaulting members would be allocated (to the extent
    available) first to those member accounts for which gains were
    haircut, pro rata based on the aggregate amount of such haircuts per
    member account, until all such haircuts have been reversed, second
    to those members who paid assessments, pro rata based on the amount
    of such assessments paid, until all such assessments have been
    repaid, third to members whose mutualized default-fund contributions
    were consumed, pro rata based on such default-fund contributions,
    until all such contributions have been repaid, and fourth to the DCO
    to the extent of its own contribution.
    —————————————————————————

        Proposed Sec.  190.17(c) would adopt by reference the equity
    calculations set forth in proposed Sec.  190.08, to the extent
    applicable.171
    —————————————————————————

        171 For a discussion of the proposed changes between current
    Sec.  190.07 and proposed Sec.  190.08, which both set forth the
    methodology for calculating net equity, please see sections II.B.5
    and II.B. 6 above.
    —————————————————————————

        Section 766(i) of the Bankruptcy Code (1) allocates a debtor DCO’s
    customer property (other than member property) to the DCO’s customers
    (i.e., clearing members) ratably based on the clearing members’ net
    equity claims based on their (public) customer accounts, and (2)
    allocates a debtor DCO’s member property to the DCO’s clearing members
    ratably based on the clearing members’ net equity claims based on their
    proprietary (i.e., house) accounts. Proposed Sec.  190.17(d) would
    implement this provision by defining funded balance as a clearing
    member’s pro rata share of member property (for a clearing member’s
    house accounts) or customer property other than member property (for
    accounts for a clearing member’s public customers). The pro rata amount
    is calculated with respect to each account class available for
    distribution to customers of the same customer class. Moreover, given
    that calculation of funded balance for FCMs is an analogous exercise,
    calculations would be made in the manner provided in the relevant
    regulation, proposed Sec.  190.08(c), to the extent applicable.172
    —————————————————————————

        172 For a discussion of the proposed changes between current
    Sec.  190.07(c) and proposed Sec.  190.08(c), which both set forth
    the methodology for calculating funded balance, please see sections
    II.B.5 and II.B.6 above.
    —————————————————————————

        The Commission requests comment with respect to all aspects of
    proposed Sec.  190.17. Is it appropriate to base these calculations on
    the full application of the debtors’ loss allocation rules and
    procedures, including the default rules and procedures referred to in
    Sec. Sec.  39.16 and 39.35?
    8. Regulation Sec.  190.18: Treatment of Property
        Proposed Sec.  190.18(a), with respect to customer property, is
    parallel to proposed Sec.  190.17(a) with respect to net equity. It
    would provide that property of the debtor clearing organization’s
    estate is allocated between member property, and customer property
    other than member property, as provided in proposed Sec.  190.18, in
    order to satisfy claims of clearing members, as customers of the
    debtor. The property so allocated would constitute a separate estate of
    the customer class (i.e. member property, and customer property other
    than member property) and the account class to which it is allocated,
    and would be designated by reference to such customer class and account
    class.
        Proposed Sec.  190.18(b) would set out the scope of customer
    property for a clearing organization.173 It is based in large part on
    proposed Sec.  190.09(a) (scope of customer property for FCMs).
    Specifically, proposed Sec.  190.18(b)(1)(i)(A) through (G) are based
    on proposed Sec.  190.09(a)(1)(i)(A) through (G). Proposed Sec. 
    190.09(a)(1)(i)(H) would not be mapped over because loans of margin are
    not applicable to DCOs.174
    —————————————————————————

        173 This is another provision prescribed pursuant to the
    Commission’s authority under section 20(a)(1) of the CEA, 7 U.S.C.
    24(a)(1).
        174 For a discussion of the proposed changes between current
    Sec.  190.08(a) (on which proposed Sec.  190.09(a) is based) and
    proposed Sec.  190.09(a), please see section II.B.7 above.
    —————————————————————————

        Proposed Sec.  190.18(b)(1)(ii) (A) through (D) are based on
    proposed Sec.  190.09(a)(1)(ii)(A), (D), (E), and (F)) respectively,
    while proposed Sec.  190.18(b)(1)(ii)(E) would adopt by reference Sec. 
    190.09(a)(1)(ii)(H) through (K), as if the term debtor used therein
    refers to a clearing organization as debtor. Proposed Sec. 
    190.09(a)(1)(ii)(B), (C), (G), and (L)) would not be mapped over
    because they would not be applicable based on the differences in
    business models, structures, and activities between FCMs and of DCOs.
        Proposed Sec.  190.18(b)(1)(iii) would be unique to a clearing
    organization. It would include as customer property any guarantee fund
    deposit, assessment, or similar payment or deposit made by a member, to
    the extent any remains following administration of the debtor’s default
    rules and procedures. It also would include any other property of a
    member that, pursuant to the debtor’s rules and procedures, is
    available to satisfy claims made by or on behalf of public customers of
    a member.
        Proposed Sec.  190.18(b)(2), which would identify property that is
    not included in customer property, would adopt by reference proposed
    Sec.  190.09(a)(2), as if the term debtor used therein refers to a
    clearing organization as debtor and to the extent relevant to a
    clearing organization.175
    —————————————————————————

        175 For a discussion of the proposed changes between current
    Sec.  190.08(a)(2) (on which proposed Sec.  190.09(a)(2) is based)
    and proposed Sec.  190.09(a)(2), see section II.B.7 above.
    —————————————————————————

        Proposed Sec.  190.18(c) would allocate customer property between
    customer classes. It would operate in the following order of
    preference: Allocation to customer property other than member property
    is favored over allocation to member property so long as the funded
    balance in any account class for members’ public customers is less than
    one hundred percent of net equity claims. Once all account classes for
    customer property other than member property are fully funded (i.e., at
    one hundred percent of net equity claims), any excess could be
    allocated to member property.
        Thus, proposed Sec.  190.18(c)(1) would allocate any property
    referred to in proposed Sec.  190.18(b)(1)(iii) (guarantee deposits,
    assessments, etc.) first to customer property other than member
    property (i.e., to benefit public customers) to the extent any account
    class therein is not fully funded, and then to member property. This is
    a change from the proviso in current Sec.  190.09(b), which would
    allocate such property to member property. This change is intended to
    favor public customers, consistent with the policy embodied in section
    766(h) of the Bankruptcy Code.
        Similarly, proposed Sec.  190.18(c)(2) would allocate any excess
    funds in any account class for members’ house accounts first to
    customer property other than member property to the extent that any
    account class therein is not fully funded, and then any remaining
    excess to house accounts, to the extent that any account class therein
    is not fully funded. Finally, proposed Sec.  190.18(c)(3) would
    allocate any excess funds in any account for members’ customer accounts
    first to customer property other than member property to the extent
    that any account class therein is not fully funded, and then any
    remaining excess to house accounts, to the extent that any account
    class therein is not fully funded.
        Proposed Sec.  190.18(d) would allocate customer property among
    account classes within customer classes.

    [[Page 36040]]

    Proposed Sec.  190.18(d)(1) would confirm that, where customer property
    is tied to a specific account class–that is, where it is segregated on
    behalf of, readily traceable on the filing date to, or recovered by the
    trustee on behalf of or for the benefit of an account class within a
    customer class–the property must be allocated to the customer estate
    of that account class (that is, the account class for which it is
    segregated, to which it is readily traceable, or for which it is
    recovered).
        Pursuant to proposed Sec.  190.18(d)(2), customer property which
    cannot be allocated in accordance with the previous paragraph would be
    allocated in a manner that promotes equality of percentage distribution
    among account classes within a customer class. Thus, such property
    would be allocated first to the account class for which funded
    balance–that is, the percentage that each member’s net equity claim is
    funded–is the lowest. This would continue until the funded balance
    percentage of that account class equals the funded balance percentage
    of the account class with the next lowest percentage of funded claims.
    The remaining customer property would be allocated to those two account
    classes so that the funded balance for each such account class remains
    equal. This would continue until the funded balance percentage of those
    two account classes is equal to the funded balance of the account class
    with the next lowest percentage of funded claims, and so forth, until
    all account classes within the customer class are fully funded.
        Proposed Sec.  190.18(e) would confirm, however, that where the
    debtor has, prior to the order for relief, kept initial margin for
    house accounts in accounts without separation by account class, then
    member property will be considered to be in a single account class.
        Proposed Sec.  190.18(f) would be the analog in the DCO context to
    proposed Sec.  190.09(a)(3) in the context of FCMs. It would reserve
    the right of the trustee to assert claims against any person to recover
    the shortfall of property enumerated in proposed Sec. 
    190.18(b)(1)(i)(E), (b)(1)(ii), and (b)(1)(iii). The purpose of
    proposed Sec.  190.18(f), as with proposed Sec.  190.09(a)(3), would be
    to clarify that any claims that the trustee may have against a person
    to recover customer property will not be undermined or reduced by the
    fact that the trustee may have been able to satisfy customer claims by
    other means.
        The Commission requests comment with respect to all aspects of
    proposed Sec.  190.18. In particular, the Commission seeks comment on
    the comprehensiveness of the scope of customer property for a clearing
    organization in proposed Sec.  190.18(b). The Commission also requests
    comment on the appropriateness of the proposed allocation of customer
    property between customer classes in proposed Sec.  190.18(c) and
    within customer classes in proposed Sec.  190.18(d).
    9. Regulation Sec.  190.19: Support of Daily Settlement
        As the Commission noted in proposing Sec.  39.14(b), “[t]he daily
    settlement of financial obligations arising from the addition of new
    positions and price changes with respect to all open positions is an
    essential element of the clearing process at a DCO.” 176 Indeed,
    Congress confirmed this by requiring that each DCO complete money
    settlements not less frequently than once each business day.177
    —————————————————————————

        176 76 FR 3608, 3708 (Jan. 11, 2011).
        177 See Core Principle E(i), 7 U.S.C. 7a-1(c)(2)(E)(i).
    —————————————————————————

        In the ordinary course of business, variation settlement payments
    are, at a set time or times each day,178 sent to the DCO from the
    customer and proprietary accounts of each clearing member with net
    losses in such accounts (since the last point of computation of
    settlement obligations for that member) and then sent from the DCO to
    the customer and proprietary accounts of each clearing member with net
    gains in such accounts over that time period.
    —————————————————————————

        178 DCOs are required to effect settlement with each clearing
    member at least once each business day. They are additionally
    required to have the capability to effect a settlement with each
    clearing member on an intraday basis. See Sec.  39.14(b).
    —————————————————————————

        There is no necessary relationship between the aggregate amount of
    payments to the DCO from all clearing member customer accounts with net
    losses and the aggregate amount of payments from the DCO to clearing
    members’ customer accounts with net gains. On the other hand, it is the
    case that, for each business day, the sum of variation settlement
    payments to the clearinghouse from clearing members’ customer and house
    accounts with net losses will equal the sum of variation settlement
    payments from the clearinghouse to clearing members’ customer and house
    accounts with net gains.179 Those variation settlement payments will
    be received into the DCO’s accounts at one or more settlement banks
    from the accounts of the clearing members with net losses and
    subsequently be disbursed from the DCO’s accounts at settlement banks
    to the accounts of the clearing members with net gains.180 Depending
    on the settlement bank and operational arrangements of the particular
    DCO, the variation settlement funds will remain in the DCO’s accounts
    between receipt and disbursement for a time period of between several
    minutes and several hours.
    —————————————————————————

        179 Thus, while (for each settlement cycle), customer account
    losses (x) plus house account losses (y) will equal customer account
    gains (p) plus house account gains (q) (that is, x + y = p + q), x
    would only equal p by random chance.
        180 In some cases, the DCO will use one settlement bank, and
    all settlement funds will flow into and out of that bank. In other
    cases, the DCO may use a system of settlement banks, and the DCO
    may, after receiving payments from members with payment obligations,
    move funds between and among the settlement banks (possibly through
    a “concentration bank”) to match the settlement funds at each bank
    to the DCO’s settlement obligations to members who are entitled to
    settlement payments.
    —————————————————————————

        It is crucial to the settlement process that the variation
    settlement payments that flow into the DCO from accounts with net
    losses are available promptly to flow out of the DCO as variation
    settlement to accounts with net gains. Accordingly, the Commission is
    proposing Sec.  190.19(a), pursuant to section 20(a)(1) of the
    CEA,181 to provide that, upon and after an Order for Relief, such
    funds 182 are to be included in the customer property of the DCO,
    that they will be considered traceable to, and shall promptly be
    distributed to, member and customer accounts entitled to payment with
    respect to the same daily settlement. This customer property would be
    allocated to (i) member property and (ii) customer property other than
    member property, in proportion to the ratio of total gains in member
    accounts with net gains, and total gains in customer accounts with net
    gains, respectively.
    —————————————————————————

        181 7 U.S.C. 24(a)(1) (Notwithstanding title 11 of the United
    States Code, the Commission may provide, with respect to a commodity
    broker that is a debtor under chapter 7 of title 11, by rule or
    regulation that certain cash, securities, other property, or
    commodity contracts are to be included or excluded from customer
    property or member property.).
        182 Because deposits of initial margin described in Sec. 
    39.14(a)(iii) are separate from the variation settlement process,
    they are treated separately in proposed Sec.  190.19(a). Such funds
    would be member property to the extent that they are deposited on
    behalf of members’ house accounts, and customer property other than
    member property to the extent that they are deposited on behalf of
    members’ customer accounts.
    —————————————————————————

        Section 190.19(b) would deal with cases where there is a shortfall
    in funds received pursuant to paragraph (a) (i.e., settlement payments
    received by the DCO). This generally would occur in case of a member
    default. Proposed paragraph (b)(1), to the extent of such shortfall,
    would supplement the available settlement funds in

    [[Page 36041]]

    accordance with the DCO’s default rules and procedures (adopted
    pursuant to Sec.  39.16 for all DCOs and, for DCOs subject to subpart C
    of part 39, Sec.  39.35) and any recovery plans and wind-down plans
    maintained pursuant to Sec.  39.39 and submitted to the Commission
    pursuant to Sec.  39.19.183 These funds would be allocated in the
    same proportion as referred to in paragraph (a).
    —————————————————————————

        183 See Sec.  39.19(c)(4)(xxiv).
    —————————————————————————

        Four types of property would be included as customer property: (i)
    Initial margin held for the account of a member that has defaulted on a
    daily settlement, including initial margin segregated for the customers
    of such member. This would be restricted to the extent that such margin
    may only be used to the extent that such use is permitted pursuant to
    parts 1, 22, and 30 (which include provisions restricting the use of
    customer margin); (ii) Assets of the debtor to the extent dedicated to
    such use as part of the debtor’s default rules and procedures, or as
    part of any recovery and wind-down plans described in the previous
    paragraph, (such assets are sometimes referred to as “skin in the
    game”); (iii) Prefunded guarantee or default funds maintained pursuant
    to the DCO debtor’s default rules and procedures; and (iv) Payments
    made by members pursuant to assessment powers maintained pursuant to
    the DCO debtor’s default rules and procedures.
        Paragraph (b)(2) would provide that, to the extent that the funds
    that are included as customer property pursuant to paragraph (a),
    supplemented as described in paragraph (b)(1), such funds would be
    allocated between (i) member property and (ii) customer property other
    than member property, in proportion to the ratio of total gains in
    member accounts with net gains, and total gains in customer accounts
    with net gains, respectively.
        The Commission requests comment with respect to all aspects of
    proposed Sec.  190.19.

    D. Appendix A Forms

        The Commission is proposing to delete forms 1 through 3 contained
    in appendix A and would replace form 4 with a streamlined proof of
    claim form. Current forms 1 through 3 include (i) a schedule of the
    trustee’s duties in operating the debtor FCM’s estate, (ii) a form for
    requesting customer instructions regarding non-cash property; and (iii)
    a form for requesting instructions from a customer concerning transfer
    of hedging positions. The forms contain outdated provisions that
    require unnecessary information to be collected. The Commission
    believes these changes provide a trustee with flexibility to act based
    on the specific circumstance of the case, while still acting
    consistently with the rules.
        As noted in proposed Sec.  190.03(f), the trustee would be
    permitted, but not required, to use the revised template proof of claim
    form proposed as new appendix A. That template is intended to implement
    proposed Sec.  190.03(e), and includes cross-references to the detailed
    paragraphs of that section. Similarly, the proposed instructions would
    also be designed to aid customers in providing information and
    documentation to the trustee that will enable the trustee to decide
    whether, and in what amount, to allow each customer’s claim consistent
    with part 190.
        The Commission requests comment with respect to all aspects of
    proposed revisions to the appendix A template proof of claim form. Is
    the information called for by the template fit for the goal of
    providing the trustee with the information they will need to determine
    whether and in what amount to allow a claim? Is any of the information
    called for unnecessary, unhelpful, or disproportionately burdensome?
    Does the form fail to request any information that is necessary to
    accomplish that goal? Are the proposed instructions clear and correct?

    E. Appendix B Forms

        Appendix B to the current part 190 regulations contains special
    bankruptcy distribution rules. These rules are broken into two
    frameworks. Framework 1 provides special rules for distributing
    customer funds when the debtor FCM participated in a futures-securities
    cross-margining program that refers to that framework. Framework 2
    provides special rules for allocating as shortfall in customer funds to
    customers when the shortfall is incurred with respect to funds held in
    a depository outside the U.S. or in a foreign currency.
        Framework 1 is applicable to specific cross-margining programs that
    explicitly refer to that distributional framework. The framework
    establishes separate pools of cross-margining and non-cross-margining
    funds and subordinates customer claims for cross-margining wherever
    that would be to the benefit of customer claims for non-cross-
    margining.
        The ABA Committee proposed clarifying changes to framework 1, and
    one substantive change: 184 The ABA Committee “propose[s] deleting
    the specific limitation that customers must be market professionals,
    should the Commission decide to expand the scope of customers that may
    participate in futures-securities cross-margining programs.” 185
    —————————————————————————

        184 See ABA Submission at 58-59.
        185 See ABA Cover Note at 17.
    —————————————————————————

        More recent cross-margining programs established in Commission
    Orders pursuant to section 4d of the CEA treat all customer claims
    (whether involving cross-margining or not, whether involving securities
    or not) equally, and do not refer to Framework 1. Accordingly, it is
    already possible for customers who are not market professionals to
    participate in cross-margining programs, including those that involve
    securities. There thus appears no need substantively to change
    framework 1. On the other hand, framework 1 will continue to apply to
    the programs established pursuant to Orders that refer to that
    framework, and so it would appear helpful to make clarifying changes.
        The Commission is accordingly proposing the clarifying changes
    suggested in the ABA Submission, but is not proposing the substantive
    change incorporated in the ABA Submission. It would retain the current
    instructions and examples following the first three paragraphs in
    appendix B, framework 1 entirely unchanged.
        The Commission is proposing to retain framework 2 with some
    clarifying changes to the opening paragraph; no substantive change is
    intended. It would retain the current instructions and examples
    following the first paragraph in appendix B, framework 2 entirely
    unchanged.
        The Commission requests comment with respect to all aspects of the
    proposed revisions to the opening paragraph of appendix B, framework 2.

    F. Technical Corrections to Other Parts

    1. Part 1
        The Commission is proposing several technical corrections and
    updates to part 1 in order to update cross-references. These are as
    follows:
         In Sec.  1.25(a)(2)(ii)(B) the Commission would revise the
    cross-reference to specifically identifiable property, since the
    definition would be updated in proposed Sec.  190.01.
         In Sec.  1.55(d) introductory text and (d)(1) and (2),
    references to current Sec.  190.06 would be removed consistent with the
    revisions to proposed Sec.  190.10(b).
         In Sec. Sec.  1.55(f) and 1.65(a)(3) introductory text and
    (a)(3)(iii) the Commission would update references to the customer
    acknowledgment in proposed Sec.  190.10(e).

    [[Page 36042]]

    2. Part 4
        In part 4, the Commission is proposing minor technical corrections:
    In Sec. Sec.  4.5(c)(2)(iii)(A), 4.12(b)(1)(i)(C) and 4.13(a)(3)(ii)(A)
    the Commission would change the cross-references to the proposed
    defined term for “in-the-money-amount.”
    3. Part 41
        In part 41, the Commission would is proposing one technical
    correction. In Sec.  41.41(d), the Commission would delete the cross-
    reference to the recordkeeping obligations in current Sec.  190.06,
    pursuant to the revisions to proposed Sec.  190.10(b).

    III. Revisions Proposed By the ABA Committee That Have Not Been
    Proposed by the Commission

        As noted in section I.A above, this NPRM has benefited greatly from
    the ABA Submission. In this section, the Commission will address those
    points where this proposal departs most significantly from the ABA
    Submission and ABA Cover Note.
        First, as discussed in section II.A.1 above, the Commission has, in
    proposed Sec.  190.00(d)(2)(ii), proposed a more direct approach to
    addressing the issue of constructive and other trusts than the approach
    suggested in the ABA Submission.
        Second, as discussed in section II.B.3 above, the Commission would
    propose in Sec.  190.05(f) to modify the application to the trustee of
    the residual interest provisions in Sec.  1.11 rather than to exempt
    the trustee from those provisions completely as suggested in the ABA
    Submission.
        Third, sections III A-E of the ABA Cover Note recommend that the
    Commission make changes to Commission Rules outside part 190, including
    (A) the definition of Foreign Option in Sec.  30.1(d), (B) the
    definition of Proprietary Account in Sec.  1.3, (C) the definition of
    Variation Margin in Sec.  1.3, (D) part 22 regulations concerning non-
    swap and non-futures OTC transactions cleared by a DCO, and (E) part 31
    regulations for Leverage Transaction Merchants. The ABA Committee
    “emphasize[s], though, that [these proposed changes] are not
    prerequisites for the Model Part 190 Rules to work as drafted. The
    Proposed Model Part 190 Rules stand on their own.” 186
    —————————————————————————

        186 ABA Cover Note at 18-19.
    —————————————————————————

        While these proposals merit due consideration, the Commission has
    determined, in light of practical limits to staff time and resources,
    to address these proposals at a later time and separately from these
    proposed revisions to part 190. By contrast, the “Technical
    Housekeeping Changes” proposed in section III F of the ABA Cover Note
    are more simple, and have been addressed in today’s proposal, as
    discussed in section II.F above.
        The ABA Submission also included proposed revisions to appendix B,
    framework 1 (Special Distribution of Customer Funds When FCM
    Participated in Cross-Margining). As discussed in section II.E above,
    the Commission is proposing the clarifying changes included in the ABA
    Submission, but is declining to “delet[e] the specific limitation that
    customers must be market professionals.” 187
    —————————————————————————

        187 Id. at 17.
    —————————————————————————

        Finally, the ABA Cover Note suggests that the Commission delete
    framework 2 (Special Allocation of Shortfall To Customer Claims When
    Customer Funds For Futures Contracts and Cleared Swaps Customer
    Collateral are Held In A Depository Outside Of The United States Or In
    A Foreign Currency) on the grounds that the framework is complicated
    and unnecessary.188 While the operation of framework 2 is undeniably
    complicated, it appears still to be necessary in order to protect those
    customers who post collateral in the form of U.S. dollars required to
    be held in the United States.189 Indeed, staff recently issued a no-
    action letter to Eurex Clearing conditioned upon FCMs providing
    customers with a written disclosure statement describing “the
    operation of Framework 2 of Part 190 of the Commission’s regulations in
    the event of an FCM bankruptcy.” 190 Accordingly, while the
    Commission would welcome proposals to simplify framework 2, it does not
    intend to delete or amend that framework at this time.
    —————————————————————————

        188 ABA Cover Note at 17.
        189 Cf. Sec.  1.49(e).
        190 See CFTC Staff Letter 18-31 at 7.
    —————————————————————————

    IV. Cost-Benefit Considerations

    A. Introduction

        Section 15(a) of the CEA requires the Commission to consider the
    costs and benefits of its actions before promulgating a regulation
    under the CEA or issuing certain orders.191 Section 15(a) further
    specifies that the costs and benefits shall be evaluated in light of
    the following five broad areas of market and public concern: (1)
    Protection of market participants and the public; (2) efficiency,
    competitiveness, and financial integrity of futures markets; (3) price
    discovery; (4) sound risk management practices; and (5) other public
    interest considerations. The Commission considers the costs and
    benefits resulting from its discretionary determinations with respect
    to the section 15(a) factors (collectively referred to herein as
    “Section 15(a) Factors”).
    —————————————————————————

        191 Section 15(a) of the CEA, 7 U.S.C. 19(a).
    —————————————————————————

        The Commission recognizes that the proposed changes to part 190
    could create benefits, but also could impose costs. The Commission has
    endeavored to assess the expected costs and benefits of the proposed
    rulemaking in quantitative terms, including costs related to matters
    addressed in the Paperwork Reduction Act 192 (“PRA-related costs”),
    where possible. In situations where the Commission is unable to
    quantify the costs and benefits, the Commission identifies and
    considers the costs and benefits of the applicable proposed rules in
    qualitative terms. The lack of data and information to estimate those
    costs is attributable in part to the nature of the proposed rules.
    —————————————————————————

        192 44 U.S.C. 3501 et seq.
    —————————————————————————

        The Commission generally requests comment on all aspects of its
    cost-benefit considerations, including the identification and
    assessment of any costs and benefits not discussed herein; the
    potential costs and benefits of the alternatives discussed herein; data
    and any other information to assist or otherwise inform the
    Commission’s ability to quantify or qualitatively describe the costs
    and benefits of the proposed rules; and substantiating data,
    statistics, and any other information to support positions posited by
    commenters with respect to the Commission’s discussion. The Commission
    welcomes comment on such costs from all members of the public, but
    particularly from FCMs, DCOs, and persons with experience as bankruptcy
    and SIPA trustees (or professionals who have provided support to such
    trustees), who can provide quantitative cost data or other learning
    based on their respective experiences. Commenters may also suggest
    other alternatives to the proposed approaches.

    B. Baseline

        The baselines for the Commission’s consideration of the costs and
    benefits of this proposed rulemaking are: (1) The Commission’s current
    regulations in part 190, which establish bankruptcy rules in the event
    of an FCM bankruptcy; (2) current appendix A to part 190, which
    contains four bankruptcy forms (form 1–Operation of the Debtor’s
    Estate–Schedule of Trustee’s Duties; form 2–Request for Instructions
    Concerning Non-Cash property Deposited with (Commodity

    [[Page 36043]]

    Broker); form 3–Request for Instructions Concerning Transfer of Your
    Hedging Contracts Held by (Commodity Broker); and form 4–Proof of
    Claim); and (3) current appendix B to part 190, which contains two
    frameworks setting forth rules concerning distribution of customer
    funds or allocation of shortfall to customer claims in specific
    circumstances. The Commission seeks comment on all aspects of the
    baseline laid out above.

    C. Overarching Concepts

    1. Changes to Structure of Industry
        The Commission is proposing several revisions in proposed part 190
    in order to take into account the changes to the structure of the
    industry since part 190 was originally published in 1983. In
    particular, the Commission would recognize that FCMs and DCOs now
    operate in a different world where matters such as market moves,
    transactions, and movements of funds tend to happen much more quickly.
    These changes result from a number of factors, in particular advances
    in technology and the global nature of underlying markets. While
    trading through FCMs in the 1980’s took place predominantly through
    open-outcry during what were then considered business hours in the
    United States, in the 21st Century, FCMs and DCOs are responsible for
    trades that take place continuously from Sunday afternoon through
    Friday afternoon (U.S. Eastern time), due to overnight electronic
    trading, as well as trading in time zones that are up to 16 hours ahead
    of U.S. Eastern time (Sydney, Australia, from approximately October
    through March).
        As a result, several of the changes the Commission is proposing to
    part 190 would address these changed circumstances. For instance,
    proposed Sec.  190.03(b)(2) would remove the current deadline of three
    days following the entry of an order for relief for the trustee or DSRO
    to notify the Commission its intent to transfer open commodity
    contracts. Instead, proposed Sec.  190.03(b)(2) would provide that the
    trustee or DSRO must notify the Commission of an intent to transfer
    “[a]s soon as possible.” As discussed further below, this change
    would be in recognition of the fact that a DCO or upstream FCM is
    unlikely to hold a position open for three days following entry of the
    order for relief, and that the trustee would be expected to be working
    on transferring any open positions immediately upon appointment.193
    The Commission believes that the revisions in proposed part 190 that
    would address the computerized and fast-paced nature of the industry
    would benefit all parties involved in a bankruptcy proceeding, since
    the rules would reflect how the industry actually works today and would
    not unnecessarily delay the administration of a bankruptcy proceeding.
    —————————————————————————

        193 Another example appears in proposed Sec.  190.04(b)(4),
    which provides that a trustee shall liquidate all open commodity
    contracts in any commodity contract account that is in deficit or
    for which the customer fails to meet a margin call made by the
    trustee within a reasonable time. The provision further provides
    that, “absent exigent circumstances, a reasonable time for meeting
    margin calls made by the trustee shall be deemed to be one hour, or
    such greater period not to exceed one business day.” Proposed Sec. 
    190.04(b)(4) thus allows for the possibility that, in the event of
    exigent circumstances, a “reasonable time” could be deemed by the
    trustee to be less than one hour, a possibility that accounts for
    the fast-paced nature of the industry.
        Other revisions that reflect changes to the structure of the
    industry are reflected in proposed Sec.  190.00(c)(6)(iv), which
    makes clear that the delivery provisions contained in the proposed
    regulations apply to any commodity that is subject to delivery under
    a commodity contract, whether the commodity itself is tangible or
    intangible, including virtual currencies, and in the definition of
    “physical delivery property” contained in proposed Sec.  190.01,
    which reflects the fact that a document of title for a commodity can
    be electronic.
    —————————————————————————

    2. Trustee Discretion
        In several places in proposed part 190, the Commission would
    attempt to provide additional flexibility and discretion to the
    bankruptcy trustee in taking certain actions.194 For instance,
    proposed Sec.  190.03(e) and (f) permit the trustee flexibility to
    modify the proof of claim form to take into account the particular
    facts and circumstances of the case. Proposed Sec.  190.03(a)(2) would
    provide that the trustee the discretion to “establish and follow
    procedures reasonably designed for giving adequate notice to customers
    under this part.” This discretionary approach would be in contrast to
    the customer notice procedures in current part 190, which are more
    prescribed and depend on the type of notice being given.195
    —————————————————————————

        194 The alternative, to forego providing such flexibility or
    discretion, would invert the benefits and costs discussed below.
        195 Other examples include proposed Sec.  190.04(d)(3),
    providing the trustee with discretion to request that a customer
    deliver substitute customer property with respect to a letter of
    credit, which “may equal the full face amount of the letter of
    credit or any portion thereof, to the extent required or may be
    required in the trustee’s discretion to ensure pro rata treatment
    among customer claims within each account class;” proposed Sec. 
    190.08(d)(5), providing that a trustee shall value certain property
    “using such professional assistance as the trustee deems necessary
    in its sole discretion under the circumstances;” and proposed Sec. 
    190.14(a), providing that a trustee in a clearing organization
    bankruptcy may, in their discretion based upon the facts and
    circumstances of the case, instruct each customer to file a proof of
    claim containing such information as is deemed appropriate by the
    trustee.
    —————————————————————————

        The Commission is of the view that, in general, affording more
    discretion to the bankruptcy trustee in appropriate circumstances is
    beneficial, and indeed necessary, where matters are unique and fast-
    paced, as they often are in commodity broker bankruptcy proceedings.
    Moreover, each formal approval the trustee is required to obtain takes
    significant time and involves significant administrative costs, to the
    detriment of customers, In many areas, it is unlikely that a
    prescriptive approach can be designed that will reliably be “fit for
    purpose” in all plausible future circumstances.
        Therefore, increased discretion of the trustee would benefit the
    estate by allowing the trustee to make decisions that are uniquely
    tailored to the particular case, rather than being compelled to follow
    a procrustean framework, or being required to request formal approval
    from the Commission or other parties before implementing those
    decisions. This approach leads to approaches that are better tailored
    to the specifics of the circumstances, reductions in administrative
    costs (to the benefit of customers and/or other creditors) and faster
    distributions of customer property (to the benefit of customers). It is
    also intended to mitigate the negative externalities arising from the
    distressed circumstances that tend to result in further reduction in
    the value of customer assets.
        The Commission recognizes, however, that with increased discretion
    comes a risk of trustee mistake or misfeasance; in other words, a
    trustee making decisions that turn out not to be in the best interests
    of the customers or other creditors. While this is certainly a
    potential cost in situations where the trustee is given increased
    discretion or flexibility, the Commission believes that this potential
    cost would be mitigated by (1) the high degree of informal (and, where
    necessary, formal) involvement of Commission staff in FCM and DCO
    bankruptcy matters,196 and (2) the fact that such discretion would
    not be unbounded and would apply only in particular circumstances, as
    discussed

    [[Page 36044]]

    below. Therefore, the Commission’s judgment in granting discretion to
    the trustee would apply these principles.
    —————————————————————————

        196 As a formal matter, the Commission has the right to appear
    and be heard on any issue in any such case. See 11 U.S.C. 762(b). As
    a practical matter, trustees and their counsel have, in previous
    commodity broker bankruptcies, consulted with Commission staff
    frequently and on an ongoing basis, particularly in making and
    implementing important decisions.
    —————————————————————————

        An additional risk related to increased discretion is the
    possibility that parties that are dissatisfied with the trustee’s
    exercise of discretion may challenge it in court, potentially leading
    to increased litigation costs. The Commission believes that this risk
    is mitigated by (1) the fact that certain of these decisions would be
    made in contexts where the trustee would be seeking an order of the
    bankruptcy court approving the trustee’s approach (and thus the
    trustee’s discretion would be subject to judicial review within a
    proceeding in which interested parties have an opportunity to object)
    and (2) the likelihood that bankruptcy courts would respect the
    Commission’s rules granting the trustee discretion, thereby mitigating
    the cost of such litigation.
        Instances where the revisions to proposed part 190 would afford
    more flexibility or discretion to the bankruptcy trustee are discussed
    in further detail where they appear in each provision below.
    3. Cost Effectiveness and Promptness Versus Precision
        In its proposed revisions to part 190, the Commission is
    endeavoring to effect a proper balance between cost effectiveness and
    promptness, on the one hand, and precision, on the other hand. Current
    part 190 favors cost effectiveness and promptness over precision in
    certain respects, particularly with respect to the concept of pro rata
    treatment, where, following the policy choice made by Congress in
    section 766(h) of the Bankruptcy Code, the Commission is proposing that
    it is more important to be cost effective and prompt in the
    distribution of customer property (i.e., in terms of being able to
    treat customers as part of a class) than it is to value each customer’s
    entitlements on an individual basis. The proposed revisions to part 190
    would take this concept further, recognizing that there are additional
    circumstances where cost effectiveness and promptness in the
    administration of a bankruptcy proceeding should have higher priority
    than precision. For instance, proposed Sec.  190.05 would provide that
    the bankruptcy trustee shall use reasonable efforts to compute a funded
    balance for each customer account that contains open commodity
    contracts and other property as of the close of each business day,
    “which shall be as accurate as reasonably practicable under the
    circumstances, including the reliability and availability of
    information.” The quoted language would allow the trustee to avoid
    more precise calculations where such precision would not be cost
    effective or could not reasonably be accomplished on a prompt basis
    (for example, in a situation where price information for particular
    assets or contracts was not readily available).197 The Commission
    believes that these revisions emphasizing cost effectiveness and
    promptness over precision would further the policy embodied in section
    766(h) of the bankruptcy code and benefit parties involved in a
    bankruptcy proceeding overall, as they would lead to (1) in general, a
    faster administration of the proceeding, (2) customers receiving their
    share of the debtor’s customer property more quickly, and (3) a
    decrease in administrative costs. There could, however, be
    corresponding costs to this approach for some customers in that they
    may lose out on being treated precisely in terms of their individual
    circumstances (and may receive a smaller distribution of customer
    property than otherwise).
    —————————————————————————

        197 Another example of advancing the overarching concept of
    favoring cost effectiveness over precision is in proposed Sec. 
    190.08(d)(5), which would provide that, in computing net equity, a
    trustee may value all customer property not otherwise listed in
    proposed Sec.  190.05(d) using such professional assistance as the
    trustee deems necessary. This provision, which would replace more
    specific valuation instructions that currently appear in part 190,
    would recognize that it is more cost effective for the trustee to
    enlist whatever professional help they need to value certain types
    of customer property rather than prescribe certain valuation methods
    for every type of customer property they may encounter in the course
    of a bankruptcy proceeding, and thereby would emphasize cost
    effectiveness over precision.
    —————————————————————————

    4. Unique Nature of Bankruptcy Events
        The Commission would recognize in proposed part 190 that there is
    no one-size-fits-all approach to the administration of the bankruptcy
    of an FCM or a DCO, and that it would be important that the rules allow
    the trustee, in conducting that administration, to take into account
    the unique nature of each of these events. The revisions to proposed
    part 190, therefore, would address the uniqueness of these bankruptcy
    events and would allow for the bankruptcy trustee to tailor their
    approach in the way that most makes sense given the individual
    circumstances of the case at hand.198 History has shown that FCM
    bankruptcies play out in very different ways, and several of the
    Commission’s proposed revisions to part 190 would address that reality.
    For instance, proposed Sec.  190.03(e) and (f), addressing the customer
    proof of claim form in an FCM bankruptcy, would allow the trustee, in
    their discretion, to modify the proof of claim form to take into
    account the particular facts and circumstances of the particular
    bankruptcy case rather than using, unmodified, a standardized proof of
    claim form that may not be appropriate for those circumstances.
    Similarly, proposed Sec.  190.14(a) would allow the trustee in a DCO
    bankruptcy, “in its discretion based upon the facts and circumstances
    of the case,” to instruct each customer to file a proof of claim form
    containing such information as is deemed appropriate by the trustee.
    These provisions would reflect the fact that each FCM and DCO
    bankruptcy would present individual circumstances, and that the proof
    of claim form would likely have to be modified to take into account the
    unique facts and circumstances of each case. The Commission believes
    that the revisions of this type would benefit all parties involved in a
    bankruptcy proceeding by better tailoring such a proceeding to the
    unique needs of the particular case.
    —————————————————————————

        198 Circumstances that may vary include the accuracy of the
    commodity broker’s records at the time of bankruptcy, whether the
    bulk of an FCM’s customer accounts were transferred in the days
    after the filing date (or otherwise migrated in the days before),
    the number of customer accounts, the existence and extent of a
    shortfall in customer funds, and the complexity of the positions
    carried by the commodity broker.
    —————————————————————————

    5. Administrative Costs are Costs to the Estate, and Often to the
    Customers
        In many instances in this proposal, the Commission has noted that a
    certain provision would impose or reduce administrative costs. The
    Commission notes that, in each of these cases, administrative costs
    would be a cost to the estate of the debtor, since administrative
    expenses that the bankruptcy trustee would incur in administering the
    estate (including for the time of the trustee, accountants, counsel,
    consultants, etc.) would be passed onto the estate itself, which means
    that, in the event of a shortfall, such costs would be ultimately be
    borne by the customers of the debtor, who would receive smaller
    dividends on their claims as the value of the debtor’s estate
    decreases.199 By a parity of reasoning, reducing such administrative
    costs would reduce the shortfall, and increase recoveries by customers.
    —————————————————————————

        199 While such costs could in certain cases be borne instead
    by general creditors, section 766(h) permits customer property to be
    used to meet “claims of a kind specified in section 507(a)(2)” of
    the Bankruptcy Code (which in turn include claims for the expenses
    of administering the estate) “that are attributable to the
    administration of customer property.”

    —————————————————————————

    [[Page 36045]]

    6. Request for Comment
        The Commission requests comment on all aspects of its cost and
    benefit considerations with respect to the overarching concepts
    described above. Are there additional costs or benefits that the
    Commission should consider? Are there any alternatives that could
    provide preferable costs or benefits than the costs and benefits
    related to the overarching concepts discussed above? Commenters are
    encouraged to include both qualitative and quantitative assessments of
    any costs and benefits.

    D. Subpart A–General Provisions

    1. Regulation Sec.  190.00: Statutory Authority, Organization, Core
    Concepts, Scope, and Construction
    a. Consideration of Costs and Benefits
        Proposed Sec.  190.00 would contain general provisions applicable
    to all of proposed part 190 that would set forth the concepts that
    guide the Commission’s bankruptcy regulations. While all of proposed
    Sec.  190.00 is new, in that current part 190 does not contain an
    analogous regulation, there would be cost-benefit implications only for
    certain provisions within proposed Sec.  190.00, since the bulk of
    proposed Sec.  190.00 is designed to explain concepts that would be
    either (1) not different from those contained in current part 190, but
    would be simply made explicit in the proposed rules, or (2) new, in
    that they would not be contained in current part 190, but simply would
    be concepts that are meant to clarify how revised substantive
    provisions operate. In the latter case, cost and benefit considerations
    are addressed with respect to the substantive provisions.
        The Commission believes that there would be no cost-benefit
    implications to the following provisions within proposed Sec.  190.00:
         Proposed Sec.  190.00(a), which would set forth the
    statutory authority pursuant to which the Commission is proposing to
    adopt proposed part 190.
         Proposed Sec.  190.00(b), which would describe how the
    proposed rules are organized into three subparts. The Commission notes
    that, while the addition of DCO-specific rules in this proposal would
    be new, the cost-benefit implications of the DCO-specific provisions
    (proposed Sec. Sec.  190.11 through 190.18) are discussed separately
    below.
         Proposed Sec.  190.00(c)(2), which would provide that
    proposed part 190 establishes four separate account classes, each of
    which would be treated differently under the proposed rules. In the
    Commission’s view, this provision would be a mere clarification, as
    current part 190 also establishes different account classes for
    different types of cleared commodity contracts, and would treat each
    account class differently.
         Proposed Sec.  190.00(c)(3), which would explain the
    distinction between “public customers” and “non-public customers,”
    and the priority that both public and non-public customers enjoy with
    respect to distributions of customer property. Both of these concepts
    exist in current part 190 and would be merely clarified and explained
    further in proposed Sec.  190.00(c)(3).
         Proposed Sec.  190.00(c)(4), which would clarify that the
    policy preference behind the rules in subpart B of part 190 is to
    transfer a debtor FCM’s customers’ open commodity contract positions to
    another FCM (frequently referred to as “porting” customer positions)
    rather than liquidating those customer positions.
         Proposed Sec.  190.00(c)(5), which would explain that
    proposed part 190 applies the concept of pro rata distribution when it
    comes to shortfalls of property in a particular account class. In the
    Commission’s view, this provision would not add anything new to part
    190 and would be merely explanatory, as current part 190, consistent
    with section 766(h) of the Bankruptcy Code, also rests on the concept
    of pro rata distribution.
         Proposed Sec.  190.00(d)(1)(i)(A), which would provide
    that the definition of “commodity broker” in proposed part 190 covers
    both “futures commission merchants” and “foreign futures commission
    merchants” because both are required to register as a FCMs under the
    CEA and Commission regulations.
         Proposed Sec.  190.00(d)(1)(ii), which would provide that
    proposed part 190 applies to a proceeding commenced under SIPA with
    respect to a debtor that is registered as a broker or dealer under the
    CEA when the debtor also is an FCM. In the Commission’s view, this
    provision would be merely explanatory.
         Proposed Sec.  190.00(d)(2)(i), which would state that the
    bankruptcy trustee may not recognize any account class that is not one
    of the account classes enumerated in proposed Sec.  190.01. This
    provision, again, would be a mere clarification that is not meant to
    add anything new to proposed part 190.
         Proposed Sec.  190.00(d)(3), which would set forth the
    transactions that are excluded from the definition of “commodity
    contract.” This provision, in the Commission’s view, merely would
    explain and carry over concepts that are already embedded in current
    part 190.
         Proposed Sec.  190.00(e), which would set forth rules of
    construction concerning amendments to statutes and regulations referred
    to in proposed part 190, and defining the relationship between proposed
    part 190 and statutes and other regulations. In the Commission’s view,
    these rules of construction would have no cost-benefit implications, as
    they merely would make explicit the Commission’s expectations with
    respect to a very narrow set of issues involved in reading and
    interpreting the provisions in proposed part 190.
        The Commission believes that there would be cost-benefit
    implications to the following provisions within proposed Sec.  190.00:
         Proposed Sec.  190.00(c)(1) would state that proposed part
    190 is limited to a commodity broker that is (1) an FCM as defined by
    the CEA and Commission regulations, or (2) a DCO under the CEA and
    Commission regulations. Current part 190 applies to a broader set of
    “commodity brokers,” including FCMs, clearing organizations,
    commodity options dealers, and leverage transaction merchants. This
    proposed narrowing of the application of part 190 (by excluding the
    empty categories of commodity options dealers and leverage transaction
    merchants) would benefit the Commission, the bankruptcy estate, and
    customers by allowing the Commission to propose regulations that are
    better tailored to the new, narrower, set of commodity brokers that are
    covered by the proposed regulations (and thus, less complex).200
    There would a corresponding cost, in that the Commission would need to
    develop such regulations, if and when a commodity options dealer or
    leverage transaction merchant registers as such.
    —————————————————————————

        200 Moreover, prescribing regulations that are intended to be
    applicable to entities that, at some unknown point in the future,
    enter these empty categories risks poor tailoring due to lack of
    data concerning the characteristics of those unknown future
    entrants.
    —————————————————————————

         Proposed Sec.  190.00(c)(6) would discuss the treatment of
    commodity contracts that require delivery performance. As in current
    part 190, proposed part 190 would reflect a policy preference for a
    bankruptcy trustee to liquidate commodity contracts that settle via
    delivery before they move into a delivery position. When that cannot be
    done, however, and when parties to a commodity contract incur delivery
    obligations, the regulations in proposed part 190 would direct the
    trustee to use reasonable efforts to allow a customer to fulfill its
    delivery obligation directly, outside administration of the debtor’s
    estate, when the rules of the relevant

    [[Page 36046]]

    market or clearinghouse allow delivery to be fulfilled (1) in the
    normal course directly by the customer, (2) by substitution of the
    customer for the commodity broker, or (3) through agreement of the
    buyer and seller to alternative delivery procedures. This is contrast
    to current Sec.  190.05(b), which requires a DCO, DCM, or SEF to enact
    rules that permit parties to make or take delivery under a commodity
    contract outside the debtor’s estate, through substitution of the
    customer for the commodity broker. The proposed regulations, in
    allowing for more flexibility in how a customer could effect delivery
    outside of the debtor’s estate, would benefit customers by allowing for
    a more bespoke approach to effecting delivery when customers incur
    delivery obligations under their open commodity contracts. There,
    however, would be costs in acting in such a bespoke fashion in contrast
    to following standards established during business as usual.
         Proposed Sec.  190.00(d)(1)(i)(B) would note that there
    are currently no registered leverage transaction merchants or commodity
    options dealers, and that the Commission would adopt rules with respect
    to leverage transaction merchants or commodity options dealers at such
    time as an entity registers as one of those categories of commodity
    brokers. This change would benefit the Commission in terms of cost
    effectiveness by allowing the Commission to propose bankruptcy rules
    specifically tailored to leverage transaction merchants or commodity
    options dealers only in the event an entity registers as such. In the
    event that happens, there would be costs involved in doing so. It is
    possible that the cost of such a separate rulemaking or rulemakings
    would be greater than the marginal costs of proposing and finalizing
    such rules as part of this rulemaking.
         Proposed Sec.  190.00(d)(1)(iii), would provide that
    proposed part 190 shall serve as guidance as to the distribution of
    customer property and member property in a proceeding in which the FDIC
    is acting as receiver pursuant to title II of Dodd-Frank. Section
    210(m)(1)(B) of title II,201 requires the FDIC, where the covered
    financial company or bridge financial company is a commodity broker, to
    apply the provisions of subchapter IV as if the financial company were
    a debtor for purposes of such subchapter. This provision would have the
    benefits associated with transparently providing to FDIC during
    business-as-usual the guidance of the agency with regulatory and
    supervisory responsibility for supervising commodity brokers (i.e.,
    FCMs and DCOs).202
    —————————————————————————

        201 12 U.S.C. 5390(m)(1)(B).
        202 DCOs operate nearly 24-hours a day, between Sunday
    afternoon and Friday evening. Moreover, the risks that a DCO is
    required to manage are based on market movements and events
    (including in OTC markets) that may occur whether or not the DCO is
    able to operate. Accordingly, FDIC staff (in cooperation with
    Commission staff) engage in significant efforts to plan for the
    unlikely event that resolution under Title II would be necessary for
    a DCO.
        Thus, there is a public benefit to facilitating FDIC’s efforts
    in resolution planning for DCOs by setting forth clearly guidance as
    to the distribution of customer property and member property in a
    DCO resolution proceeding.
    —————————————————————————

         Proposed Sec.  190.00(d)(2)(ii) would provide that no
    property that would otherwise be included in customer property shall be
    excluded from customer property because it is considered to be held in
    a constructive, resulting, or other trust that is implied in equity.
    This provision would have the benefit of supporting the statutory
    policy of pro rata distribution for the pool of customers, by ensuring
    that all property that properly belongs in the category of “customer
    property” would be considered such customer property. It would
    mitigate the friction costs of particular customers structuring their
    relationships with their FCMs in order to establish such a trust for
    the purpose of thwarting their exposure to pro rata distribution, as
    well as the friction costs of litigation within the bankruptcy
    proceeding over the effectiveness of such structures in achieving that
    goal.
         However, this approach would impose costs on those
    customers, if any there be, who would otherwise endeavor to rely on the
    trust concept to shield certain of their property from entering the
    pool of customer property. Such customers might (despite opposition
    from the Commission and the trustee) otherwise be successful in
    litigation over the effectiveness of such arrangements, or may obtain
    settlements that would benefit their individual claims (albeit to the
    detriment of other customers, and to the policy of pro rata
    distribution).
    b. Request for Comment
        The Commission requests comment on all aspects of its cost and
    benefit considerations with respect to proposed Sec.  190.00. Are there
    additional costs or benefits that the Commission should consider? Are
    there any alternatives that could provide preferable costs or benefits
    than the costs and benefits related to the proposed amendments
    discussed above? Commenters are encouraged to include both qualitative
    and quantitative assessments of any costs and benefits.
    2. Regulation Sec.  190.01: Definitions
    a. Consideration of Costs and Benefits
        Proposed Sec.  190.01 would set forth definitions as they are used
    for purposes of proposed part 190. In the Commission’s view, only
    certain of the definitions in proposed Sec.  190.01 would have any
    cost-benefit implications, and these are discussed in more detail
    below. The rest of the definitions would set forth in proposed Sec. 
    190.01, in the Commission’s view, would not impose any costs or
    benefits, as the changes to the definitions would be minor (in the vein
    of, for example, updating cross-references or updating language to
    reflect the changes in the rest of proposed part 190) or merely would
    clarify the current definition.
        Where, in the Commission’s view, a definition in proposed Sec. 
    190.01 would have cost-benefit implications, those implications are
    discussed in more detail below:
         “Account class,” “cash delivery property,” and
    “physical delivery property:” The definition of the term “account
    class” would be expanded to include definitions of each type of
    account class set forth in proposed part 190: futures account, foreign
    futures account, cleared swaps account, and delivery account. Including
    a specific definition of each type of account class would benefit all
    parties involved in a bankruptcy proceeding by ensuring that all
    parties would have a common understanding of how these various types of
    accounts would be defined for purposes of part 190.
         The proposed definition of “account class” also would
    remove the category in current part 190 of “leverage account”
    because, as noted above, there are currently no registered leverage
    transaction merchants. Rather, the Commission would adopt rules with
    respect to leverage transaction merchants (and, accordingly, with
    respect to leverage accounts) at such time as an entity registers as
    such. Removal of the category of “leverage account” from the
    “account class” definition would benefit market participants by
    allowing the Commission to propose bankruptcy rules specifically
    tailored to leverage transaction merchants (and, accordingly, to
    leverage accounts) in the event an entity registers as such. As noted
    above with respect to Sec.  190.00(d)(1)(i)(B), in the event of the
    registration of a leverage transaction merchant, there would be costs
    involved in proposing and finalizing such

    [[Page 36047]]

    tailored rules. It is possible that the cost of such a separate
    rulemaking or rulemakings would be greater than the marginal costs of
    proposing and finalizing such rules as part of this rulemaking.
        The proposed definition of “account class” also would split
    “delivery accounts” into separate physical and cash delivery account
    classes. Because cash delivery property is, in some cases, more
    difficult to trace to specific customers and more vulnerable to
    loss,203 this separate treatment of physical delivery property and
    cash delivery property would benefit customers with physical delivery
    property by allowing for more prompt distribution of such physical
    delivery property. This separation would also benefit the estate,
    because the trustee would not have to wait to distribute physical
    delivery property to customers while attempting to trace cash delivery
    property, which could result in a more prompt resolution of the
    bankruptcy as a whole. However, there would be potential added costs in
    the form of complications, in that the trustee will have to deal with
    two delivery account subclasses rather than one delivery account class.
    Moreover, in the event of a shortfall, some customers could ultimately
    obtain larger recoveries, while others could obtain smaller recoveries.
    —————————————————————————

        203 These reasons for this difficulty and vulnerability are
    discussed above in section II.B.4 in the explanation of the changes
    to proposed Sec.  190.06(b).
    —————————————————————————

        Pursuant to section 4d of the CEA, certain contracts and associated
    collateral that would be associated with one account class may instead
    (pursuant to, e.g., Commission regulation 204 or order) be commingled
    with a different account class.205 The purpose of such arrangements
    is to associate such contracts with an account class in which they are
    risk-reducing related to other contracts in that latter account class.
    —————————————————————————

        204 See Sec.  39.15(b)(2), which provides a mechanism for
    these arrangements to be implemented pursuant to clearing
    organization rules.
        205 Securities positions may also be commingled in an account
    class subject to section 4d of the CEA, 7 U.S.C. 6d.
    —————————————————————————

        Paragraph (2) of the definition of account class confirms that such
    arrangements will be respected in bankruptcy, that is, such contracts
    and associated collateral will be treated as being part of the account
    class into which they are commingled. The benefit of this treatment in
    bankruptcy would be to foster such risk-reducing (and margin-efficient)
    arrangements during business as usual; there would be no associated
    costs in bankruptcy.
        Finally, paragraph (3) of the definition addresses cases where a
    commodity broker’s account for a customer is non-current, or otherwise
    inaccurate, a matter over which the customer has, at best, limited
    control. Paragraph (3) would confirm that a commodity broker is
    considered to maintain an account for a customer where it establishes
    internal books and records for the customer’s contracts and collateral
    and related activity, regardless of whether the commodity broker has
    kept those internal books or records current or accurate. The benefit
    of this treatment would be to treat customers in accordance with their
    entitlements, regardless of whether the commodity broker has maintained
    its books and records current or accurate.
         “Customer,” “Customer class,” “public customer,” and
    “non-public customer:” The definition of the terms “public
    customer” and “non-public customer” would be revised to include
    separate definitions of those terms for FCMs and DCOs. This change
    would reflect the new organization of proposed part 190, which would
    include separate provisions for when the debtor is (1) an FCM (subpart
    B), and (2) a DCO (subpart C). The “public customer” definition for
    FCMs also would be revised to define that term with respect to each of
    the relevant account classes.
        These changes likely would result in the benefit of clarifying and
    making more transparent who qualifies as a “public” versus a “non-
    public” customer, a categorization which would have an effect on the
    distribution of property to which each customer is entitled. This
    clarity and transparency would, in turn, tend to reduce the
    administrative costs (to the estate and to claimants) involved in the
    claims allowance process, as well as the likelihood (and cost) of
    litigation by dissatisfied claimants. These changes could, however,
    impose costs on any customers (if they exist) for whom, under current
    part 190, it would not be clear which category they fall into. Given
    that the pool of customer property would be different for public and
    non-public customers, a hypothetical customer who could have been
    considered “public” under current part 190 but would be categorized
    as “non-public” under proposed part 190 could receive less in the
    distribution of customer property (with other customers receiving
    more).
         “Futures, futures contract:” The Commission is proposing
    to add a definition for the terms “futures” and “futures contract”
    to clarify what those terms mean for purposes of proposed part 190.
    This clarification would serve the goals of clarity and transparency
    (and, consequently, reducing administrative costs) by making it more
    explicit, and transparent, which types of transactions are considered
    “futures” and therefore form part of the futures account or foreign
    futures account.
         “House account:” The definition of the term “house
    account” would be revised to include separate definitions of that term
    for FCMs, foreign FCMs and DCOs, in a manner that clarifies the
    connection between the concept of a “house account” in part 190 and
    the concept of a proprietary account in Sec.  1.3. This change would
    reflect the new organization of proposed part 190, which now includes
    separate provisions for when the debtor is (1) an FCM (subpart B), or
    (2) a DCO (subpart C). This change would serve the goals of clarity and
    transparency (and, consequently, reducing administrative costs) by
    clarifying what precisely constitutes a house account for purposes of
    each type of proceeding.
         “Primary liquidation date:” The definition of the term
    “primary liquidation date” would be revised to remove the reference
    to accounts being held open for later transfer, as currently reflected
    in Sec.  190.03(a). The concept of holding certain commodity contracts
    open for later transfer would be removed from proposed part 190 in
    favor of a policy of transferring as many open commodity contracts as
    possible within a particular timeframe after entry of an order for
    relief 206 or, if that is not possible, liquidating such commodity
    contracts. The proposed definition of “primary liquidation date”
    would reflect this preferred policy. This change in policy would
    benefit some customers, who would be able to avoid having their open
    commodity contracts liquidated in favor of transferring such contracts
    to another commodity broker. It could, however, impose costs on any
    customers, if they exist,207 who might have benefited from having
    their open commodity contracts held open for transfer after the primary
    liquidation date (by, for instance, being able to transfer such
    contracts to a preferred commodity broker). In the hypothetical event
    that a larger number of contracts is liquidated rather than
    transferred, that additional quantum of liquidation may result in
    additional (downward) pressure on prices. This policy shift

    [[Page 36048]]

    could also impose administrative costs, since the bankruptcy trustee
    may expend time and effort to carry out its obligation to use its
    “best efforts” to transfer all open commodity contracts prior to the
    primary liquidation date.
    —————————————————————————

        206 See proposed Sec.  190.04(a)(1).
        207 Given that the clearing organization for such contracts
    may not be willing to permit such contracts to be held open for an
    extended period of time, the existence of such customers is indeed
    hypothetical.
    —————————————————————————

         “Specifically identifiable property:” The Commission is
    proposing to revise the definition of the term “specifically
    identifiable property” to update, clarify and streamline the current
    definition of that term. These updates, clarifications and streamlining
    edits would serve the goals of clarity and transparency (and,
    consequently, reducing administrative costs). Of course, increasing
    clarity and transparency may be to the detriment of those customers (if
    any there be) for whom such clarity results in assignment to a less
    favorable category.
         “Substitute customer property:” The definition of the
    term “substitute customer property” would be added to refer to cash
    or cash equivalents delivered to the trustee by or on behalf of a
    customer in order to redeem specifically identifiable property or a
    letter of credit. This provision would benefit customers who, in a
    bankruptcy event, would like to redeem their specifically identifiable
    property or letters of credit and, under the current rules, have no way
    to do so.208 Introducing the concept of substitute customer property
    could impose administrative costs, however, because the trustee would
    have to expend time and resources on accounting for the substitute
    customer property and ensure that such property ends up in the proper
    pool of customer property once received.
    —————————————————————————

        208 Benefits and costs associated with the use of substitute
    customer property are addressed further below in connection with
    proposed Sec.  190.04(d)(3) in section IV.E.2.
    —————————————————————————

         “Swap:” The Commission would amend the definition of
    “cleared swap” that appears in the current rules in order to clarify
    what this term means for purposes of proposed part 190. This
    clarification would serve the goals of clarity and transparency (and,
    consequently, reducing administrative costs).
    b. Request for Comment
        The Commission requests comment on all aspects of its cost and
    benefit considerations with respect to proposed Sec.  190.01. Are there
    additional costs or benefits that the Commission should consider? Are
    there any alternatives that could provide preferable costs or benefits
    to the costs and benefits related to the proposed amendments discussed
    above? Commenters are encouraged to include both qualitative and
    quantitative assessments of any costs and benefits.
    3. Regulation Sec.  190.02: General
    a. Consideration of Costs and Benefits
        Proposed Sec.  190.02(a)(1) would provide that the bankruptcy
    trustee may, for good cause shown, request from the Commission an
    exemption from the requirements of any procedural provision in proposed
    part 190. This is in contrast to current Sec.  190.10(b)(1), which
    provides only that a bankruptcy trustee may request an exemption from,
    or extension of, any time limit prescribed in current part 190. This
    change could benefit the estate, the Commission, and customers by
    allowing the trustee to request an exemption from a requirement in
    proposed part 190 that would lower administrative costs and increase
    timeliness. This change could, however, impose administrative costs if
    the trustee’s request is ill-founded and the Commission were
    nonetheless to grant the request.
        The Commission does not believe that there would be any cost-
    benefit implications to proposed Sec.  190.02(a)(2) and (3), (b), (c),
    (d), and (e), as those sections largely align with the provisions in
    current part 190 from which they would be derived.
        Proposed Sec.  190.02(f) is a new paragraph which would explicitly
    allow a receiver appointed due to a violation or imminent violation of
    the customer property protection requirements of section 4d of the CEA
    or of the regulations thereunder, or of the FCM’s minimum capital
    requirements in Sec.  1.17 of this chapter, to file a petition for
    bankruptcy of such FCM in appropriate cases. This provision may benefit
    customers, in that a bankruptcy proceeding may be necessary to protect
    customers’ interests in customer property. However, this provision
    could also impose costs on the customers, who may not receive as much
    as they otherwise would have under the receivership. In addition, there
    could be additional administrative costs that result from this
    provision, as the bankruptcy trustee would have to spend time and
    resources overseeing a bankruptcy proceeding that might not be entered
    into under the current rules; these costs could possibly be greater
    than the costs of continuing to administer the FCM under receivership.
    b. Request for Comment
        The Commission requests comment on all aspects of its cost and
    benefit considerations with respect to proposed Sec.  190.02. Are there
    additional costs or benefits that the Commission should consider? Are
    there any alternatives that could provide preferable costs or benefits
    than the costs and benefits related to the proposed amendments
    discussed above? Commenters are encouraged to include both qualitative
    and quantitative assessments of any costs and benefits.
    4. Section 15(a) Factors–Subpart A
    a. Protection of Market Participants and the Public
        Subpart A of the proposed rules would increase the protection of
    market participants and the public by clearly setting forth how
    customers of FCMs and DCOs will be classified and treated, and how
    their accounts will be categorized and treated, in the event of an FCM
    or DCO insolvency. The goal of subpart A of the proposed rules would be
    to promote clarity in terms of how the insolvency of an FCM or DCO
    would proceed, and to increase transparency to the customers of FCMs
    and DCOs as to how their property would be treated in the event of such
    an insolvency.
    b. Efficiency, Competitiveness, and Financial Integrity
        Subpart A of the proposed rules would promote efficiency (in the
    sense of both cost effectiveness and timeliness) in the administration
    of insolvency proceedings of FCMs and DCOs and the financial integrity
    of derivatives transactions carried by FCMs and/or cleared by DCOs by
    clearly communicating the goals and core concepts involved in such
    insolvencies, and by setting forth clear definitions that have been
    updated to account for current market practices. These effects would,
    in turn, enhance the competitiveness and financial integrity of U.S.
    FCMs and DCOs, by enhancing market confidence in the protection of
    customer funds and positions entrusted to U.S. FCMs and DCOs, even in
    the case of insolvency.
    c. Price Discovery
        Price discovery is the process of determining the price level for
    an asset through the interaction of buyers and sellers and based on
    supply and demand conditions. To the extent that the proposed
    regulations would mitigate the need for liquidations in conditions of
    distress, they would avoid negative impacts on price discovery.
    d. Sound Risk Management Practices
        Subpart A of the proposed rules would generally promote sound risk
    management practices by setting forth the core concepts to which the
    bankruptcy trustee must adhere in

    [[Page 36049]]

    administering an FCM or DCO bankruptcy.
    e. Other Public Interest Considerations
        Some of the FCMs or DCOs that might enter bankruptcy are very large
    financial institutions, and some are (or are part of larger groups that
    are) considered to be systematically important. An effective bankruptcy
    process that efficiently facilitates the proceedings is likely to
    benefit the financial system (and thus the public interest), as that
    process would help to attenuate the detrimental effects of the
    bankruptcy on the financial network.

    E. Subpart B–Futures Commission Merchant as Debtor

    1. Regulation Sec.  190.03: Notices and Proofs of Claims
    a. Consideration of Costs and Benefits
        Proposed Sec.  190.03(a)(1) would replace the requirement in
    current Sec.  190.10(a) that all mandatory or discretionary notices be
    sent to the Commission via overnight mail with the requirement of
    sending the notices by electronic mail.209 This change would result
    in a benefit to all parties required to provide notices to the
    Commission because they would be able to avoid the costs of sending
    such notice in hardcopy form via overnight mail. These revisions would
    also allow the Commission to receive such notices–and thus, to act–
    much more expeditiously.
    —————————————————————————

        209 See also proposed Sec.  190.03(d), which is proposing to
    adopt this new method of providing notice to the Commission for any
    court filings filed in a bankruptcy.
    —————————————————————————

        Proposed Sec.  190.03(a)(2), which is new, would replace the more
    specific procedures for providing notice to customers that appear in
    current Sec.  190.02(b), allowing the trustee to establish and follow
    procedures “reasonably designed” for giving adequate notice to
    customers.210 Proposed Sec.  190.02(a)(2) also would provide that the
    trustee’s procedures for providing notice to customers should include
    “the use of a prominent website as well as communication to customers’
    electronic addresses that are available in the debtor’s books and
    records.” Such a generalized and more modernized approach to notifying
    customers would benefit the debtor’s estate by leading to
    administrative cost savings, as the trustee would be able to choose
    cost effective means of providing notice to customers within the more
    flexible bounds of the proposed regulation. Similarly, it would benefit
    parties interested in the proceedings, by permitting the trustee
    flexibly to choose methods of notification that are more prompt and
    effective. On the other hand, affording the trustee increased
    discretion in how to provide notice to customers would carry the
    potential cost of trustee misfeasance and abuse of such discretion, as
    discussed above.
    —————————————————————————

        210 Proposed Sec.  190.03(a)(2) would be referenced throughout
    proposed Sec.  190.03 as the proper procedure for providing notice
    to customers in various circumstances. As an example, proposed Sec. 
    190.03(c)(1) deletes the requirement in current Sec.  190.02(b)(1)
    that the trustee publish notice to customers regarding specifically
    identifiable property in a newspaper for two consecutive days prior
    to liquidating such property, in favor of the more flexible approach
    for notice set forth in proposed Sec.  190.03(a)(2). Similarly, see
    proposed Sec.  190.03(c)(3), which requires a trustee appointed in
    an involuntary proceeding to notify customers of the commencement of
    such a proceeding, and Sec.  190.03(c)(4), which requires the
    trustee to notify customers that an order for relief has been
    entered, both of which require that such notice be made in
    accordance with the flexible notice provisions set forth in proposed
    Sec.  190.03(a)(2).
    —————————————————————————

        Proposed Sec.  190.03(b)(1) would revise the time in which a
    commodity broker must notify the Commission of a bankruptcy filing. In
    particular: (1) In the event of a voluntary bankruptcy filing, the
    commodity broker would be required to notify the Commission and the
    appropriate DSRO as soon as practicable before, and in any event no
    later than, the time of filing, and (2) in the event of an involuntary
    bankruptcy filing or an application for a protective decree under SIPA,
    the commodity broker would be required to notify the Commission and the
    appropriate DSRO immediately upon the filing of such petition or
    application. These revisions would codify expectations that (1) in a
    voluntary bankruptcy proceeding, the commodity broker will provide
    advance notice to the Commission ahead of the filing to the extent
    practicable, and (2) in an involuntary bankruptcy proceeding, the
    commodity broker notify the Commission immediately upon the filing.
    With respect to a voluntary bankruptcy filing, the Commission expects
    that both the Commission and the relevant DSRO would be aware of any
    financial circumstances in the lead-up to a bankruptcy filing in
    accordance with the mandatory reporting requirements in Sec.  1.12; the
    revision in proposed Sec.  190.03(b)(1) merely would codify the
    expectation that the FCM would notify the Commission of the actual
    bankruptcy filing as soon as practicable before, and in no event later
    than, the time of the filing. In addition, proposed Sec.  190.03(b)(1)
    also would allow a commodity broker to provide the relevant docket
    number of the bankruptcy proceeding to the Commission “as soon as
    known,” while not waiting on notifying the Commission of the filing
    itself, to account for the potential time lag between the filing of a
    proceeding and the assignment of a docket number. These revisions would
    foster the ability of the Commission and its staff to perform their
    duties by providing the Commission with notice of any bankruptcy
    proceeding as soon as possible.
        Proposed Sec.  190.03(b)(2) would remove the current deadline of
    three days after the order for relief by which the trustee, the
    relevant DSRO or a clearing organization must notify the Commission of
    an intent to transfer or to apply to transfer open commodity contracts
    in accordance with section 764(b) of the Bankruptcy Code, instead
    instructing such parties to give such notice “[a]s soon as possible”
    of an intent to transfer. The Commission expects that the bankruptcy
    trustee would begin working on transferring any open commodity
    contracts as soon as the trustee is appointed and that, by the end of
    three days following entry of the order for relief, any such transfers
    likely will be either completed, actively in process or determined not
    to be possible. Indeed, the Commission does not expect that a DCO would
    be likely to hold a position open for more than three days following
    entry of the order for relief unless a transfer is actively in process
    and imminent. Thus, while the Commission recognizes that the “[a]s
    soon as possible” language is somewhat vague, given past experience,
    the Commission views the current timeframe of three days after entry of
    the order for relief as generally too long, and it is not clear what
    precise shorter period of time would be generally appropriate, given
    the unique circumstances of each case. Under different circumstances,
    that is, where transfer arrangements cannot be made within three days
    after the order for relief, this revision would benefit the estate and
    some customers by removing time constraints that could be construed to
    prohibit notification after expiration of the deadline (and thus,
    prohibit the trustee from forming the intent to transfer after that
    time).
        The revision would also enhance the Commission’s ability to fulfil
    its responsibilities to customers and the markets by facilitating
    prompt notice of an intent to transfer. On the other hand, by giving
    the trustee, DSRO, or clearing organization more latitude for providing
    notice of an intent to transfer, there would be the potential cost of
    misfeasance in waiting an unreasonable amount of time to provide such
    notice (or to form such intent), which could ultimately impose
    additional costs on

    [[Page 36050]]

    customers who would have benefited from an earlier transfer.
        Proposed Sec.  190.03(c)(1) would no longer require the trustee to
    publish notice to customers with specifically identifiable property in
    a newspaper of general circulation serving the location of each branch
    office of the debtor prior to liquidating such property, instead
    requiring notification to customers with specifically identifiable
    property in accordance with proposed Sec.  190.03(a)(2). Administrative
    costs would decrease, as the trustee would thus be relieved of the cost
    of identifying, and publishing notice in, such newspapers. Moreover,
    under the proposed regulation, the trustee would no longer have to wait
    seven days after the second publication date to commence liquidation of
    specifically identifiable property. Rather, under proposed Sec. 
    190.03(c)(1), the trustee would be free to commence liquidation of
    specifically identifiable property starting on the seventh day after
    entry of the order for relief, which would benefit the estate, and
    potentially the affected customers, by allowing the trustee more
    freedom (from the time constraints set forth in the current
    regulations) in liquidating the specifically identifiable property,
    which could ultimately result in a better price. Moreover, by using the
    notice provisions that would be set forth in proposed Sec. 
    190.03(a)(2) to notify customers with specifically identifiable
    property, such customers would benefit from receiving notice on a
    “prominent website” and, more specifically, at their electronic
    addresses to the extent such addresses are in the debtor’s books and
    records, thereby increasing the chances that a customer who would like
    their specifically identifiable property returned could request such a
    return within the specified timeframe.
        Proposed Sec.  190.03(c)(2) would provide the bankruptcy trustee
    with authority to treat open commodity contracts of public customers
    held in hedging accounts designated as such in the debtor’s records as
    specifically identifiable property.211 This would be a change from
    the current framework, under which the trustee treats customers with
    specifically identifiable property on a bespoke basis; specifically, to
    the extent the trustee does not receive transfer instructions regarding
    a customer’s specifically identifiable open commodity contracts, the
    trustee would be required to liquidate such contracts within a certain
    time period. To the extent the trustee would exercise the authority
    derived from proposed Sec.  190.03(c)(2), they would be required to
    notify each relevant customer and request instructions whether to
    transfer or liquidate the open commodity contracts. To the extent the
    trustee would not exercise such authority, the trustee would treat
    these open commodity contracts the same as other customer property and
    effect a transfer of such contracts. This new framework would reduce
    administrative costs and benefit the bankruptcy estate by allowing the
    trustee to rely on hedging designations made during business as usual,
    thereby allowing the trustee to make swift and cost effective decisions
    regarding the treatment of open commodity contracts during a bankruptcy
    situation. However, it is possible that some customers would have been
    in a better position if treated on a bespoke basis.
    —————————————————————————

        211 See proposed Sec.  190.10(b)(2) for the process of
    designating an account as a “hedging account.”
    —————————————————————————

        The Commission does not believe that there would be any cost-
    benefit implications to proposed Sec.  190.03(c)(3) or (4), other than
    those discussed above with respect to the new notice provision
    referenced in each, or to proposed Sec.  190.03(d).
        Proposed Sec.  190.03(e), like its analog in current Sec. 
    190.02(d), would set forth the information required from customers
    regarding their claims against the debtor. As revised, proposed Sec. 
    190.03(e), would reorganize and add certain information items to those
    listed in the current regulation including, for example, account
    numbers for accounts held by the claimant with the debtor,212 whether
    the account is an individual retirement account for which there is a
    custodian,213 and information regarding any accounts held by the
    claimant with the debtor that are not commodity contract accounts.214
    The Commission anticipates that, while customers are likely to have
    this information at their disposal, there could be costs associated
    with gathering it all in one place. However, this additional and more
    detailed information would benefit the estate, the bankruptcy court and
    customers alike by allowing all parties to have a fuller, more detailed
    and more transparent picture of the customer claims against the debtor.
    It would foster the reduction of administrative costs and the prompt
    administration of the estate. Moreover, the Commission is of the view
    that clarifying several of the information items listed in proposed
    Sec.  190.03(e) and revising the proof of claim form to match more
    closely the text of the proposed regulation would result in benefits to
    all parties involved in an FCM bankruptcy–the estate, the bankruptcy
    court, and the customers–by making the bankruptcy claims process more
    prompt and cost effective.
    —————————————————————————

        212 Proposed Sec.  190.03(e)(3)(i).
        213 Proposed Sec.  190.03(e)(3)(vii).
        214 Proposed Sec.  190.03(e)(4).
    —————————————————————————

        This proposed regulation also would provide that the specific items
    referred to would be included “in the discretion of the trustee.”
    This discretion would permit the trustee to tailor the information
    requested to the specifics of the debtor’s prior business, as well as
    the already-available records. This would permit the trustee to limit
    or to increase the information requested, in appropriate cases, with a
    corresponding increase in cost effectiveness. To be sure, there could
    be corresponding costs (both in administrative expense and time) if the
    set of information requested by the trustee in the exercise of their
    discretion turns out, in retrospect, to be overly narrow (or broad).
        Proposed Sec.  190.03(f) is a new paragraph which would provide the
    trustee with flexibility to modify the customer proof of claim form set
    forth in appendix A to proposed part 190. Specifically, proposed Sec. 
    190.03(f) would allow the trustee to modify the proof of claim form to
    take into account the particular facts and circumstances of the case.
    This provision would benefit the estate because the trustee would be
    able to modify the proof of claim form in a way that gathers the
    information necessary in a manner that is both effective and cost
    effective based on the specific facts of the case, and the trustee
    would no longer be required to get an order from the bankruptcy court
    to make such modifications, thereby saving time and resources. This new
    proposed section would also benefit customers, who would be able to
    take advantage of the more streamlined and tailored proof of claim
    forms developed by the trustee, and would therefore spend less time
    filling out such forms, and the estate, which would bear less
    administrative cost in evaluating such forms. Again, there could be
    corresponding administrative costs if the set of information in a
    modified proof of claim form turns out, in retrospect, to be overly
    narrow (or broad).
    b. Request for Comment
        The Commission requests comment on all aspects of its cost and
    benefit considerations with respect to proposed Sec.  190.03. Are there
    additional costs or benefits that the Commission should consider? Is
    the information called for in proposed Sec.  190.03(e) and the template
    proof of claim form in fact readily available to customers? If not,
    what changes should be made?

    [[Page 36051]]

        Are there any alternatives that could provide preferable costs or
    benefits than the costs and benefits related to the proposed amendments
    discussed above? In particular, what desirable results may be
    sacrificed by deleting existing requirements for newspaper publication?
    What are the costs associated with newspaper publication? Do the cost
    savings from deleting the requirement outweigh the associated loss?
        Commenters are encouraged to include both qualitative and
    quantitative assessments of any costs and benefits.
    2. Regulation Sec.  190.04: Operation of the Debtor’s Estate–Customer
    Property
    a. Consideration of Costs and Benefits
        In proposed Sec.  190.04(a), the Commission would revise current
    Sec.  190.02(e). The revisions would identify explicitly a policy by
    which the trustee should use best efforts to transfer open commodity
    contracts and property held by the failed FCM for or on behalf of its
    public customers, while largely retaining the current provisions. The
    proposed changes would set forth a clear policy for trustees to follow,
    which would benefit customers of the failed FCM in a more streamlined
    description of the transfer process that is consistent with the core
    concepts set forth in this part. Thus, the Commission estimates that
    there would be very little to no cost to the changes.
        In addition in proposed Sec.  190.04(a)(1), the Commission is
    proposing to replace the term “equity” with “property,” in order to
    clarify that the transfer is for all types of property that the
    commodity broker is holding on behalf of customers, rather than limited
    to equity. The Commission is also proposing to add the word “public”
    before “customer” to clarify that the transfers discussed in the
    regulation related to the open commodity contracts and property of the
    debtor’s public customers. In each case, the Commission believes that
    the changes would clarify the existing regulation to conform to how it
    has been interpreted in the past, as demonstrated by industry practice.
    Thus, the type of property transferred would be unlikely to change.
    Nevertheless, the clarification would benefit customers of the failed
    FCM by minimizing the likelihood of future disputes concerning
    qualification of property for transfer. As compared to the text of the
    current regulation, the revision would be intended to reduce costs for
    customers and would be designed to increase the amount of property
    transferred following a default. Based on how the existing regulation
    has been interpreted in the past, as demonstrated by industry practice
    in prior bankruptcy proceedings, no additional costs would be
    anticipated.215
    —————————————————————————

        215 The Commission is proposing the same change–the addition
    of the word “public” before “customers” to proposed Sec. 
    190.04(a)(2). The anticipated cost and benefit analysis of the
    change would be the same as in proposed Sec.  190.04(a)(1).
    —————————————————————————

        Proposed Sec.  190.04(a)(2) is derived from current Sec. 
    190.02(e)(2) and concerns transfers by a commodity broker against which
    an involuntary petition in bankruptcy has been filed. As discussed in
    more detail in section II.B.2 above, both the current and the proposed
    regulations require such a commodity broker to use best efforts to
    effect a transfer within seven calendar days. The current regulation
    also limits such a commodity broker to trading for liquidations only
    unless otherwise directed by the Commission, by any applicable self-
    regulatory organization or by the court. Proposed Sec.  190.04(a)(2)
    deletes this limitation. Rather, proposed Sec.  190.04(e)(4) more
    generally would cover limitations on the business of an FCM in
    bankruptcy. Similarly any requirement to transfer customers would be
    more properly addressed by Sec.  1.17(a)(4).216 Accordingly, the
    benefit would be the removal of redundant regulation (and corresponding
    mitigation of administrative costs). The Commission does not anticipate
    any resulting increase in cost.
    —————————————————————————

        216 Reg. Sec.  1.17(a)(4) provides that an FCM that is not in
    compliance with the minimum financial requirements established by
    Sec.  1.17, or is unable to demonstrate such compliance as required
    by Sec.  1.17(a)(3), or cannot demonstrate that it has sufficient
    access to liquidity to operate as a going concern, must transfer all
    customer accounts and immediately cease doing business as an FCM
    until such time as it is able to demonstrate compliance. The FCM is
    nonetheless authorized to trade for liquidation purposes only unless
    otherwise directed by the Commission or the DSRO, or may be allowed
    by the Commission or the DSRO up to 10 business days in which to
    achieve compliance without having to transfer accounts.
    —————————————————————————

        In proposed Sec.  190.04(b)(1), the Commission is clarifying and
    updating conditions under which the trustee may make variation and
    maintenance margin payments on behalf of the FCM debtor’s customers via
    five changes to the current regulation, Sec.  190.02(g)(1). First, the
    proposed regulations would replace the phrase “variation and
    maintenance margin payments” with “payments of initial margin and
    variation settlement” which, in the Commission’s view, more accurately
    would describe the types of payments being reflected in this provision.
    Second, the proposed regulation would replace the phrase “to a
    commodity broker” with “to a clearing organization, commodity broker,
    foreign clearing organization or foreign futures intermediary” to
    account for the various types of entities to which a margin payment
    described in this provision may be made. Third, the proposed revisions
    would permit the trustee to make margin payments pending transfer or
    liquidation rather than just pending liquidation. Fourth, the proposal
    would delete the phrase “required to be liquidated under current
    paragraph (f)(1) of this section” and instead applies more broadly to
    any open commodity contracts. In sum, the revisions would clarify that
    payments can be made prior to pending transfers or liquidation, not
    just pending liquidation. The revision would benefit the customers of
    the FCM debtor in clarifying that the trustee has two paths in treating
    open commodity contracts–transfer, and if transfer is not possible,
    liquidation. This change would clarify powers the trustee already had
    available under the Bankruptcy Code and would have no associated costs.
    More specifically, the changes would describe more accurately the types
    of payments that the trustee would be able to make and to account
    specifically for the types of entities to which the trustee would be
    able to make the types of payments referred to in this paragraph.
    Finally, the deletion in the last portion of the paragraph is being
    proposed in order to prevent a misreading of the current provision,
    which could be read to prohibit margin payments for contracts that are
    being held open, which would undermine the trustee’s ability to hold
    the contracts open. The revisions to proposed Sec.  190.04(b)(1) would
    clarify the current regulatory text, which should benefit stakeholders.
    The Commission does not anticipate any increased cost from the changes.
        Proposed Sec.  190.04(b)(1)(i) is derived from current Sec. 
    190.02(g)(1)(i), which would prevent the trustee from making any
    payments of behalf of any commodity contract account that is in
    deficit, to the extent within the trustee’s control. The proposal would
    add the explicit phrase “to the extent within the trustee’s control”
    and would add a proviso noting that the regulation shall not be
    construed to prevent a clearing organization, foreign clearing
    organization, FCM or foreign futures intermediary carrying an account
    of the debtor from exercising its rights to the extent permitted under
    applicable law. The proposal would recognize that certain accounts may
    be held on an omnibus basis on behalf of many customers. To the extent
    the trustee is making a margin payment with respect

    [[Page 36052]]

    to such an omnibus account, it may be out of the trustee’s control to
    only make payment with respect to those customer accounts that are not
    in deficit. Thus, this change would reflect the nature of the omnibus
    accounts that are part of the regulatory and statutory framework. The
    proviso similarly would clarify that this prohibition on making margin
    payments on behalf of accounts in deficit is not intended to prohibit
    entities from exercising legal rights to margin under applicable law.
    Due to the structure of the accounts and the explicit requirement of
    lack of trustee control, any payments that would be made under the new
    provision would have been made pursuant to Commission authorization
    under the current regulation. Thus, neither provision would add any new
    regulatory burden and the Commission does not estimate that there would
    be any additional cost associated with the proposed changes.
        Proposed Sec.  190.04(b)(1)(ii) is a new regulation that would add
    an explicit restriction that the trustee cannot make a margin payment
    with respect to a specific customer account that would exceed the
    funded balance of that account. This restriction would support the pro
    rata distribution principle discussed in proposed Sec.  190.00(c)(5),
    and would benefit the other customers of the FCM debtor–any payment of
    customer property in excess of a particular customer’s funded balance
    would be to the detriment of other customers. This change would be a
    clarification of the statutory requirements applicable to the customer
    account.217
    —————————————————————————

        217 While there would be a corresponding detriment to the
    customers who may have benefited from such excess payments, those
    customers would only be losing something that runs counter to the
    statutory goal of pro rata distribution. Moreover, there are no
    likely incentive effects because, on this issue, customers stand
    behind the “veil of ignorance”–it is difficult to identify, ex
    ante, which customers would be in the group of gaining customers (or
    in the group of losing customers).
    —————————————————————————

        Proposed Sec.  190.04(b)(1)(iii) would be a minor, non-substantive
    clarification of current Sec.  190.02(g)(1)(ii), that would not create
    any changes from the status quo with regards to costs and benefits.
        In proposed Sec.  190.04(b)(1)(iv)-(v), the Commission is expanding
    current Sec.  190.02(g)(1)(iii) to clarify that margin must only be
    used (i.e., paid to a clearing organization or upstream intermediary)
    consistent with section 4d of the CEA. Proposed Sec.  190.04(b)(1)(vi)
    would revise the language in current Sec.  190.02(g)(1)(iv), which
    states that “no payments need be made to restore initial margin.” The
    current regulation implies that the trustee may make such upstream
    payments, but does not specify the circumstances in which the trustee
    may do so. As discussed in detail in section II.B.2 above, proposed
    Sec.  190.04(b)(1)(vi) would state explicitly the conditions under
    which the trustee may make payments to meet margin obligations.
    Together, these changes protect customers who make payments after the
    order for relief by ensuring that they fully benefit from those
    payments (and thus encourage customers to make such payments in
    appropriate circumstances). Moreover, more clearly permitting the
    trustee, for the purpose of curing customer margin deficiencies, to use
    funds in an account class that exceed the sum of all of the net equity
    claims for that account class, would facilitate the orderly transfer of
    positions and contracts following the default, lessening the potential
    for further roiling markets. Finally, these changes taken together also
    benefit the broader group of customers of the FCM debtor by clarifying
    the treatment of funds in segregated accounts, and thus mitigating
    administrative costs.
        These changes would be a clarification of the statutory
    requirements applicable to funds in the customer account. While there
    would be accounting requirements associated with funds in segregated
    accounts, substantially all of the costs of such accounting are already
    incurred pursuant to the segregation rules. Thus, the Commission does
    not anticipate that there would be any material additional costs
    associated with this change.
        Proposed Sec.  190.04(b)(2) would clarify and update existing Sec. 
    190.02(g)(2). The current regulation requires retail-level analysis for
    determining whether to issue margin calls based on the funded balance
    of the account, and does not grant the trustee discretion as to whether
    to do so. It is based on a model of the FCM continuing in business.
        The Commission is proposing to revise this provision to delete the
    highly prescriptive conditions, and instead to allow the trustee
    discretion as to whether to issue margin calls to customers who are
    undermargined. The revision would benefit public customers of the FCM
    debtor by giving the trustee the flexibility to recognize that there
    may be situations in which issuing a margin call is impracticable
    because the trustee is operating the FCM in “crisis mode” and may be
    pending wholesale transfer of liquidation of open positions.
        It is, however, possible that the trustee would exercise their
    discretion poorly, or in a manner that, in retrospect, would be seen to
    be to the detriment of the estate, and that the trustee would have
    failed to issue a margin call in a situation in which a public customer
    would have paid the call (and in which the balance of administrative
    cost and amount recovered would mean that, in retrospect, it would have
    profited the estate if the call was made). Such failure could result in
    a cost to the estate of the FCM debtor to the extent that such funds
    are not available. The balance of the revisions would cause no change
    to the related costs and benefits.
        Proposed Sec.  190.04(b)(3) would retain the concept in current
    Sec.  190.02(g)(3) with updated cross-references. There Commission does
    not anticipate that there would be any costs or benefits to the
    proposed minor revisions.
        Proposed Sec.  190.04(b)(4) would combine parts of current
    Sec. Sec.  190.03(b)(1) and (2) and 190.04(e)(4). The proposal would
    make two changes. First, while the current provision would require the
    trustee to liquidate open commodity contracts if the account is on the
    threshold of deficit, the proposed revision also would apply to an
    account that is already in deficit. The revision would clarify the
    applicability of current authority to a situation that is already
    implicit in the current rule. The benefit would be a less ambiguous
    rule that clearly sets forth the applicability of the trustee’s
    authority (and thus results in reduced administrative costs). The
    Commission does not anticipate any increased cost associated with the
    change. Relatedly, the proposed rule would change “payment of margin”
    to “mark-to-market calculation.” This change would not require the
    trustee to make additional calculations but, if a calculation made by
    the trustee would reveal that the mark-to-market value of the account
    is a deficit, the trustee would be instructed to liquidate the account
    as soon as practicable rather than to wait for the time that payment
    would be due. The benefit of this change would be to liquidate accounts
    in deficit more promptly (thus mitigating potential further losses),
    the cost would be the cost of engaging in such liquidation, as well as
    the possibility that, absent prompt liquidation, the deficit would have
    been mitigated due to favorable intervening changes in market value
    (or, potentially, an intervening deposit of additional collateral by
    the customer).
        Second, the Commission is also proposing to add the concept of
    “exigent circumstances” as a new exception to the general and long-
    established rule that a minimum of one hour is sufficient notice for a
    trustee to liquidate an undermargined account. The revision would
    benefit other customers of the debtor FCM by giving

    [[Page 36053]]

    the trustee flexibility to respond to market conditions following an
    FCM default, and by recognizing that in stressed markets or in
    situations where communication protocols cannot practicably be
    followed, liquidation with one hour notice may be insufficiently
    prompt. This may mitigate losses to the estate. However, customers who
    are required to make payments more promptly would bear associated
    costs, from making such payments in a reduced time frame, or from
    having contracts liquidated that would otherwise not have been
    liquidated if the customer had more time to make payment.
        The Commission is proposing to delete current Sec.  190.03(b)(3),
    which permits the trustee to liquidate open commodity contracts where
    the trustee has received no customer instructions with respect to such
    contracts by the sixth calendar day following the entry of the order
    for relief. Under the proposed model, the trustee would liquidate as
    many open commodity contracts as possible. The Commission is of the
    view that this change would reflect actual practice in commodity broker
    bankruptcies in recent decades. The estate would benefit from such a
    model in that they would be permitted to deal with the customers as a
    group, requiring less tailored analysis of individual customer
    positions. The trustee would have more flexibility and could be more
    cost effective. Many customers would benefit from the trustee being
    able to act with such flexibility and cost effectiveness. However, some
    others could fare less well due to losing the tailored treatment under
    the current model.
        The Commission is proposing to add Sec.  190.04(b)(5) to guide the
    trustee in assigning liquidating positions to the FCM debtor’s
    customers when only a portion of the open contracts are liquidated.
    Under the status quo, the trustee must allocate liquidating positions.
    The benefit of this new provision would be that it presents a clear and
    transparent mechanism by which the trustee is to allocate the
    positions. This mechanism would protect the customer account as a
    whole, by establishing a preference for assigning liquidating
    transactions to individual customer accounts in a risk-reducing manner:
    First to commodity contract accounts that are in deficit, next, to
    commodity contract accounts that are under-margined, and finally to
    liquidate any remaining open commodity contracts. Consistent with the
    pro rata distribution principle in Sec.  190.00(c)(5), to the extent
    that there are multiple accounts in any of these groups, the trustee
    would be instructed to allocate the transactions on a pro rata basis,
    thereby minimizing the risk of further losses on the positions and
    reducing the risk of creating any additional debts for the debtor
    estate. The allocation mechanism would be, however, subject to the
    trustee’s exercise of reasonable business judgement. It is possible
    that such judgment could be exercised in a poor manner (or in a manner
    that, in retrospect, turns out to be regrettable), with resultant cost
    to the FCM debtor estate.
        Proposed Sec.  190.04(c) would incorporate and clarify current
    Sec.  190.03(b)(5) regarding the liquidation of contracts moving into
    the delivery position. Current Sec.  190.03(b)(5) requires the
    liquidation of open commodity contracts that are not settled in cash
    (i.e., those that settle via physical delivery of a commodity) where
    the contract would move into delivery position.
        The proposed revision would amend this provision using more
    explicit language regarding physical delivery and includes an explicit
    reference addressing how options move into the delivery position
    (portions of this provision are moved from current Sec. 
    190.02(f)(1)(ii)). These clarifications are likely to reduce
    administrative costs, to the benefit of the estate (and, ultimately,
    customers). There would be no cost associated with the revision.
        Proposed Sec.  190.04(d) would clarify and update portions of
    current Sec. Sec.  190.02(f) and 190.04(d) regarding the liquidation
    and valuation of open positions. The proposal would make three changes
    to the header text in Sec.  190.04(d) from the text in current Sec. 
    190.02(f): Adding the phrase “except as otherwise set forth in this
    paragraph (d)” to account for any exceptions that are included in the
    paragraphs under the header language; adding cross-references to
    proposed Sec.  190.04(e) when discussing liquidation in the market and
    book entry via offset (as that provision contains instructions on how
    to effect such liquidation); and deleting the phrase “subject to limit
    moves and to applicable procedures under the Bankruptcy Code.” These
    changes would be non-substantive and would not have associated costs or
    benefits.
        In proposed Sec.  190.04(d)(1), the Commission is proposing to make
    two changes to current Sec.  190.02(f)(1). The proposal would delete
    the reference in current Sec.  190.02(f)(1)(i)) to dealer option
    contracts since such term no longer would be used in the proposal.
    Additionally, the proposal would revise the language of current Sec. 
    190.02(f)(1)(ii) to add references to the provisions of proposed Sec. 
    190.03(c)(2) (concerning the trustee’s option to treat hedging accounts
    as specifically identifiable property) and proposed Sec.  190.09(d)(2)
    (concerning the payments that customers on whose behalf specifically
    identifiable commodity contracts would be transferred must make to
    ensure that they do not receive property in excess of their pro rata
    share). These revisions would be non-substantive and would not have
    associated costs.
        Proposed Sec.  190.04(d)(2) would clarify and update current Sec. 
    190.02(f)(2) and would contain a number of proposed revisions. The
    current regulation applies only to specifically identifiable property
    other than open commodity contracts, while the proposal would apply to
    specifically identifiable property, other than open commodity contracts
    or physical delivery property. While the current regulation requires
    liquidation of such property if the fair market value of the property
    drops below 90% of its value on the date of the entry of the order for
    relief, the proposal would (in paragraph (d)(2)(i)) change that figure
    to 75% of the fair market value. The proposed regulation (in paragraph
    (d)(2)(ii)) would add an additional new condition that would require
    liquidation where failure to liquidate the specifically identifiable
    property may result in a deficit balance in the applicable customer
    account, which corresponds to the general policy of liquidating any
    accounts that are in deficit. Finally, the proposal (in paragraph
    (d)(2)(iii)), while similar to current Sec.  190.02(f)(2)(ii), would
    include updated cross-references that would discuss the return of
    specifically identifiable property. The proposal would benefit
    customers (including those customers with specifically identifiable
    property in a delivery account) by giving the trustee greater
    discretion to forego or postpone liquidation of specifically
    identifiable property in appropriate cases. It is, however, possible
    that the trustee would exercise their discretion poorly, or in a manner
    that in retrospect is regrettable, and postpone liquidation of
    specifically identifiable property or fail to liquidate specifically
    identifiable property when the estate would have realized more from a
    prompt liquidation of the property. Such failure could result in a cost
    to the estate of the FCM debtor to the extent that such funds are not
    available.
        Proposed Sec.  190.04(d)(3) is new and would codify the
    Commission’s longstanding policies of pro rata distribution and
    equitable treatment of customers in bankruptcy, as described

    [[Page 36054]]

    in proposed Sec.  190.00(c)(5) above, as applied to letters of credit
    posted as margin. Under the new provision, the trustee could request
    that a customer deliver substitute customer property with respect to
    any letter of credit received, acquired or held to margin, guarantee,
    secure, purchase, or sell a commodity contract. The amount of the
    substitute customer property to be posted could, in the trustee’s
    discretion, be less than the full face amount of the letter of the
    credit, if such lesser amount is sufficient to ensure pro rata
    treatment consistent with proposed Sec. Sec.  190.08 and 190.09. If
    necessary, the trustee could require the customer to post property
    equal to the full face amount of the letter of credit to ensure pro
    rata treatment. Pursuant to paragraph (d)(3)(i), if such a customer
    fails to provide substitute customer property within a reasonable time
    specified by the trustee, the trustee could draw upon the full amount
    of the letter of credit or any portion thereof (if the letter of credit
    has not expired). Under paragraph (d)(3)(ii), the trustee would be
    instructed to treat any portion of the letter of credit that is not
    fully drawn upon as having been distributed to the customer. However,
    the amount treated as having been distributed would be reduced by the
    value of any substitute customer property delivered by the customer to
    the trustee. Any expiration of the letter of credit after the date of
    the order for relief would not affect this calculation. Pursuant to
    paragraph (d)(3)(iii), letters of credit drawn by the trustee, or
    substitute customer property posted by a customer, would be considered
    customer property in the account class applicable to the original
    letter of credit.
        These proposed new provisions could impose costs on customers that
    use letters of credit as collateral for their positions in that such
    customers could be considered to have received distributions up to the
    full amount of the letter of credit or the trustee may draw upon the
    full amount of the letter of credit. Under the status quo, the
    Commission has intended to ensure the customers using letters of credit
    to meet margin obligations are treated in an economically equivalent
    manner to those who have posted other types of collateral, so that
    there is no incentive to use such letters of credit to circumvent the
    pro rata distribution of margin funds as set forth in section 766(h) of
    the Bankruptcy Code.218 However, the treatment was not explicitly
    codified previously in the Commission’s regulations. The proposal would
    support the policy of pro rata treatment of customers embodied section
    766(h) of the Bankruptcy Code by clarifying that letters of credit
    cannot be used to avoid pro rata distribution of margin funds. It would
    also avoid concentrating losses on those customers (who are likely to
    be smaller customers) that cannot qualify for, or cannot afford the
    cost of, letters of credit, or otherwise do not use letters of credit
    as collateral.
    —————————————————————————

        218 See, e.g., 48 FR at 8718-19.
    —————————————————————————

        In the proposal, Sec.  190.04(e)(1)(i) would strike the requirement
    in current Sec.  190.04(d)(1)(i) that a clearing organization must
    obtain approval pursuant to section 5c(c) of the CEA for its rules
    regarding liquidation of open commodity contracts. The current
    regulation is superfluous in light of the regulatory framework set
    forth in part 40 of the Commission’s regulations. In addition, proposed
    Sec.  190.04(e)(1)(i) would add language that would apply the current
    provision to cases where the debtor FCM is a member of a foreign
    clearing organization, a new defined term added to Sec.  190.01.
        The first change simply would remove a superfluous regulatory
    requirement. It would have the benefit of enabling clearing
    organizations to avoid the cost of seeking rule approval. There would
    be potential costs, in that an ill-conceived rule could be more readily
    identified, and addressed, in a rule approval process. The second
    change would provide a benefit by recognizing that there are
    circumstances in which the trustee must liquidate the open commodity
    contracts where the debtor is a member of a foreign clearing
    organization. Since the current regulation is silent as to the
    trustee’s handling of the debtor’s contracts where it is a member of a
    foreign clearing organization, the trustee arguably could have some
    discretion as to the handling of these contracts. However, where there
    are applicable rules of the foreign clearing organization, it is likely
    that the trustee would handle such contracts as specified in the
    proposed rule–and would liquidate such contracts pursuant to those
    rules. Accordingly, benefits and costs arising from the rule change
    likely would be minimal.
        Proposed Sec.  190.04(e)(2) is derived from current Sec. 
    190.04(d)(1)(ii) with one change: The Commission is proposing to delete
    the rule approval requirement. As with Sec.  190.04(e)(1)(i), the
    proposed deletion would remove a redundant regulatory requirement in
    light of the part 40 rule filing framework, and would enable clearing
    organizations to avoid the cost of seeking rule approval. As discussed
    immediately above, there would be both potential benefits and costs to
    foregoing the rule approval process.
        The proposal would add a new, clarifying provision in Sec. 
    190.04(e)(3), confirming that an FCM or foreign futures intermediary
    through which a debtor FCM carries open commodity contracts may
    exercise any enforceable contractual rights the FCM or foreign futures
    intermediary has to liquidate such commodity contracts. In addition,
    proposed Sec.  190.04(e)(3) would add a provision that the liquidating
    FCM or foreign futures intermediary must use “commercially reasonable
    efforts” in the liquidation and provides the trustee a damages remedy
    if the FCM or foreign futures intermediary fails to do so. Damages
    would be the only remedy; under no circumstance could the liquidation
    be voided.
        The proposed change would benefit carrying FCMs by confirming
    explicitly that carrying FCMs are allowed to exercise enforceable
    contractual rights to liquidate contracts. This will reduce
    administrative costs by reducing ambiguity. At the same time,
    clarification of the damages remedy protects creditors of the debtor
    FCM’s estate in the event that the carrying FCM does not use
    commercially reasonable efforts in liquidating the open contracts.
    Thus, the regulation itself would provide the estate with a potential
    mitigant for the costs in the form of a damages remedy.
        The remainder of the proposed changes to Sec.  190.04(e)(4) and (f)
    would be non-substantive language changes and clarifications and
    updated cross-references and would not have associated costs or
    benefits.
    b. Request for Comment
        The Commission requests comment on all aspects of its cost and
    benefit considerations with respect to proposed Sec.  190.04. Are there
    additional costs or benefits that the Commission should consider? Are
    there any alternatives that could provide preferable costs or benefits
    than the costs and benefits related to the proposed amendments
    discussed above? Commenters are encouraged to include both qualitative
    and quantitative assessments of any costs and benefits.
    3. Regulation Sec.  190.05: Operation of the Debtor’s Estate–General
    a. Consideration of Costs and Benefits
        In proposed Sec.  190.05, the Commission is revising parts of
    current Sec.  190.04 and adding certain provisions. Current Sec. 
    190.04 provides that the trustee “shall comply with all of the
    provisions of the [CEA] and of the regulations thereunder

    [[Page 36055]]

    as if it were the debtor” and “must compute a funded balance for each
    customer account which contains open commodity contracts as of the
    close of business day subsequent to the order for relief until the
    final liquidation date” (emphasis added).
        In both proposed Sec.  190.05(a) and (b), the Commission would make
    revisions providing the trustee with more flexibility to act in a
    bankruptcy situation. Proposed Sec.  190.05(a), for example, would
    provide that the trustee “shall use reasonable efforts” to comply
    with the CEA and the Commission’s regulations. Proposed Sec.  190.05(b)
    would require the trustee to “use reasonable efforts” to compute a
    funded balance for each customer account that contains open commodity
    contracts or other property as of the close of business each business
    day until such open commodity contracts and other property in such
    account have been transferred or liquidated, “which shall be as
    accurate as reasonably practicable under the circumstances, including
    the reliability and availability of information.” These two revisions
    would benefit the estate by recognizing that a bankruptcy could be an
    emergency event, that perfectly reliable information could be
    unavailable or inordinately expensive to obtain, and that therefore the
    trustee should be allowed some measure of flexibility to act reasonably
    given the particular circumstances of the case. On the other hand,
    affording the trustee increased discretion in complying with the CEA
    and the Commission’s regulations, and in computing a funded balance for
    each customer account, could carry the potential cost of trustee
    mistake, misfeasance, or abuse of such discretion, as discussed above.
    The Commission also notes that, in proposing to add the phrase “which
    shall be as accurate as reasonably practicable under the
    circumstances” with respect to the trustee’s computation of funded
    balance, the Commission would be incorporating the principle of
    prioritizing cost effectiveness over precision, as discussed in more
    detail in the overarching concepts above.
        Whereas current Sec.  190.04(b) would require a trustee to compute
    a funded balance only for those customer accounts with open commodity
    contracts, proposed Sec.  190.05(b) would expand the scope of customer
    accounts for which a trustee would be required to compute a funded
    balance to those accounts with open commodity contracts or other
    property (including, but not limited to, specifically identifiable
    property). This expansion of the trustee’s duties would represent an
    administrative cost, as the trustee would have to expend time and
    resources at the close of business each business day to compute the
    funded balance of all customer accounts. However, this revision would
    also result in a benefit to those customers whose accounts hold
    property but no open commodity contracts, in the form of enhanced
    information about their financial position (including with regard to
    collateral, the value of which may change on a daily basis, and with
    regard to the percentage distribution currently available). These
    customers would, under the proposed revision, receive daily
    computations of the funded balance of their accounts with the debtor.
        In addition, as noted above, proposed Sec.  190.05(b) only would
    require the trustee to compute the daily funded balance of customer
    accounts until the open commodity contracts and other property in such
    account has been transferred or liquidated, rather than until the final
    liquidation date, as current Sec.  190.04(b) provides. This would
    benefit both the estate, because the trustee would no longer be
    required to compute the funded balance of customer accounts that do not
    contain any property, and would also result in some benefit to the
    customers, who would no longer continue to receive daily account funded
    balance computations once their accounts do not contain any property.
        Proposed Sec.  190.05(c)(1) would impose certain administrative
    costs because it would expand the scope of records required to be
    maintained by the debtor from “records of the computations required by
    this part” in current Sec.  190.04(c)(1) to “records required under
    this chapter to be maintained by the debtor, including records of the
    computations required by this part” in proposed Sec.  190.05(c)(1).
    The proposed paragraph would revise downward the amount of time that
    such records are required to be kept, from “the greater of the period
    required by Sec.  1.31 of this chapter or for a period of one ear after
    the close of the bankruptcy proceeding for which they were compiled”
    in current Sec.  190.04(c)(1) to “until such time as the debtor’s case
    is closed” in proposed Sec.  190.05(c)(1). This revision would benefit
    the estate because it would limit the amount of time the trustee would
    have to maintain the relevant records, thereby mitigating the
    administrative costs associated with maintaining them.
        While current Sec.  190.04(c)(2) requires the records referred to
    in the previous paragraph to be available during business hours to the
    Court, parties in interest, the Commission and the Department of
    Justice, proposed Sec.  190.05(c)(2) no longer would require that such
    records be available to the Court or to parties in interest. This
    revision would be unlikely to impact either costs or benefits, as the
    Court itself would not be reviewing these records, and parties in
    interest should already have access to these records under the
    discovery rules in the Bankruptcy Code.
        Proposed Sec.  190.05(d) is a new provision. It would require the
    bankruptcy trustee to use all reasonable efforts to continue to issue
    account statements for customer accounts that contain open commodity
    contracts or other property, and to issue account statements reflecting
    any liquidation or transfer of open commodity contracts or other
    property promptly after such liquidation or transfer. This provision
    would result in administrative costs, as the trustee would have to
    expend time and resources issuing account statements to customers, but
    would benefit customers because it would allow them to keep track of
    their commodity contracts (and the continued availability of hedges)
    and the property in their accounts, including in particular when such
    contracts and property are liquidated or transferred, even during a
    bankruptcy.
        Proposed Sec.  190.05(e)(1) would allow a bankruptcy trustee to
    effect transfers of customer property in accordance with proposed Sec. 
    190.07, but would require the trustee to obtain court approval prior to
    making any other disbursements to customers. This provision would
    benefit the estate and customers by allowing the trustee, without court
    approval, to port customers’ positions and associated property to a
    solvent FCM as quickly as possible in a bankruptcy situation. In the
    event that too much customer property (that is, an amount in excess of
    the ultimate pro rata share) is transferred for those customers whose
    positions are being ported, and cannot be offset or clawed back, it
    could result in costs to other customers, for whom less than their pro
    rata share would be available.
        Proposed Sec.  190.05(e)(2) would allow the bankruptcy trustee to
    invest the proceeds from the liquidation of commodity contracts or
    specifically identifiable property, and any other customer property, in
    obligations of or guaranteed by the United States, so long as the
    obligations are maintained in depositories located in the United States
    or its territories or possessions. The proposed regulation would expand
    the scope of customer property that the trustee is permitted to invest
    in such a

    [[Page 36056]]

    manner to include “any other customer property.” This change would
    benefit customers, in that additional customer property could be
    invested (in this limited manner).
        Proposed Sec.  190.05(f) is a new provision that does not appear in
    current part 190. It would, for the first time, require the trustee to
    apply the residual interest provisions contained in Sec.  1.11 “in a
    manner appropriate to the context of their responsibilities as a
    bankruptcy trustee pursuant to” the Bankruptcy Code and “in light of
    the existence of a surplus or deficit in customer property available to
    pay customer claims.” This explicit requirement to continue to apply
    the residual interest requirements set forth in Sec.  1.11 could result
    in administrative costs, since the trustee would require resources to
    do so. However, this provision would benefit customers by making it
    more likely that they would receive what they are entitled to receive
    from the debtor’s estate.
    b. Request for Comment
        The Commission requests comment on all aspects of its cost and
    benefit considerations with respect to proposed Sec.  190.05. Are there
    additional costs or benefits that the Commission should consider? Are
    there any alternatives that could provide preferable costs or benefits
    than the costs and benefits related to the proposed amendments
    discussed above? Commenters are encouraged to include both qualitative
    and quantitative assessments of any costs and benefits.
    4. Regulation Sec.  190.06: Making and Taking Delivery Under Commodity
    Contracts
    a. Consideration of Costs and Benefits
        Proposed Sec.  190.06 would revise current Sec.  190.05 regarding
    the making and taking of deliveries under commodity contracts.
        Specifically, proposed Sec.  190.06(a)(2) would replace current
    Sec.  190.05(b), which requires a DCO, DCM, or SEF to enact rules that
    permit parties to make or take delivery under a commodity contract
    outside the debtor’s estate, through substitution of the customer for
    the commodity broker. Under the proposed revision, the trustee would
    use “reasonable efforts” (rather than “best efforts” under current
    Sec.  190.06(a)(1)) to allow a customer to deliver physical delivery
    property that is held directly by the customer in settlement of a
    commodity contract, and to allow payment in exchange for such delivery,
    and for both of these to occur outside the debtor’s estate, where the
    rules of the exchange or clearing organization prescribe a process for
    delivery that allows delivery to be fulfilled either (A) in the
    ordinary course by the customer, (B) by substitution of the customer
    for the commodity broker, or (C) through agreement of the buyer and
    seller to alternative delivery procedures. Management of contracts in
    the delivery positions involves a significant degree of tailored
    administration. Under the best efforts standard, the trustee could
    spend more time focusing on the needs of a few customers, which could
    detract from the trustee’s ability to manage the estate more broadly.
    Accordingly, the change from “best efforts” to “reasonable efforts”
    would benefit creditors of the estate as the trustee would not need to
    provide a disproportionate amount of individualized treatment to such
    contracts. However, particular customers that would otherwise have
    received the trustee’s focused treatment under the “best efforts”
    standard could suffer a cost from the change.
        Proposed Sec.  190.06(a)(3) would revise current Sec. 
    190.05(c)(1)-(2) by providing additional guidance to address situations
    when the trustee determines that it is not practicable to effect
    delivery outside the estate and therefore, delivery is made or taken
    within the debtor’s estate. The revisions would clarify the current
    regulation. They also would provide the trustee with the flexibility to
    act “as it deems reasonable under the circumstances of the case,” but
    would set an outer bound to that discretion in requiring the trustee to
    act “consistent with the pro rata distribution of customer property by
    account class.” This provision again would have the benefits and costs
    of enhanced discretion discussed above, but would include an outer
    bound to that discretion.
        In proposed Sec.  190.06(a)(4) the Commission would add a new
    provision to reflect that delivery may need to be made in a securities
    account.219 Transfers would be subject to limits based on the
    customer’s funded balance for a commodity contract account and
    exceeding the minimum margin requirements for that account. Further,
    customers would be required not to be undermargined or have a deficit
    balance in any other commodity contract accounts. The new provision
    would benefit customers who require the delivery of securities, and the
    trustee, by permitting those securities to be delivered to the proper
    type of account. By setting limits, the provision would mitigate the
    risk of transferring too much value out of the commodity contract
    account (and creating a risk of an undermargin or deficit balance).
    —————————————————————————

        219 This would only be relevant for debtor FCMs that are also
    broker-dealers.
    —————————————————————————

        Proposed Sec.  190.06(b) is also new and would create an account
    class for physical delivery property held in delivery accounts and the
    proceeds of such physical delivery property. This account class would
    further be sub-divided into separate physical delivery and cash
    delivery account subclasses. In general, creating the delivery account
    class would help protect customers with property in delivery accounts
    following a default, because delivery accounts are not subject to the
    Commission’s segregation requirements. The further sub-division into
    sub-classes would recognize that cash is more vulnerable to loss, and
    more difficult to trace, as compared to physical delivery property and
    would be likely to benefit those with physical delivery claims. Since
    cash is more vulnerable to loss and more difficult to trace, then under
    the proposal, customers in the cash delivery sub-class would be more
    likely to get a pro rata distribution that is less than that in the
    physical delivery property sub-class. The benefits and costs of
    creating these sub-classes were discussed more fully above in reference
    to the definition of account class in proposed Sec.  190.01.
    b. Request for Comment
        The Commission requests comment on all aspects of its cost and
    benefit considerations with respect to proposed Sec.  190.06. Are there
    additional costs or benefits that the Commission should consider? Are
    there any alternatives that could provide preferable costs or benefits
    than the costs and benefits related to the proposed amendments
    discussed above? Commenters are encouraged to include both qualitative
    and quantitative assessments of any costs and benefits.
    5. Regulation Sec.  190.07: Transfers
    a. Consideration of Costs and Benefits
        Proposed Sec.  190.07 would revise current Sec.  190.06 regarding
    transfers. First, in proposed Sec.  190.07(a)(3) the Commission would
    revise current Sec.  190.06(a)(3). The current regulation would provide
    that no clearing organization or other self-regulatory organization may
    adopt, maintain in effect, or enforce rules that prevent the acceptance
    by its members of transfers of open commodity contracts and the equity
    margining or securing of such contracts from FCMs with respect to which
    a petition in bankruptcy has been

    [[Page 36057]]

    filed, if the transfers have been approved by the Commission. The
    revised regulation would change “prevent” to the more general term
    “[i]nterfere with,” thus proscribing a potentially broader range of
    conduct in order to promote transfers. However, the revised regulation
    would include the proviso that it (1) does not limit the exercise of
    any contractual right of a clearing organization or other registered
    entity to liquidate or transfer open commodity contracts, and (2)
    should not be interpreted to limit a DCO’s ability adequately to manage
    risk. The revision would modify, in a balanced fashion, the standard
    for clearing organization and SRO rules that are adopted, maintained,
    in effect, and enforced and where transfers are approved by the
    Commission. While clearing organizations and SROs will need to comply
    with the revised standard, the compliance cost should not be different
    than under the prior standard. Accordingly, there would not be any
    material cost associated with the change. The clarification that the
    regulations do not limit contractual risk management rights would
    provide a benefit to clearing organizations and their members in
    clarifying that the regulation would not nullify the contracts in this
    regard, and would not have an associated cost.
        In proposed Sec.  190.07(b)(1), the Commission would clarify
    current Sec.  190.06(c)(1) to set forth that it is the transferee FCM
    itself who has the responsibility to determine whether it would be in
    violation of regulatory minimum financial requirements upon accepting a
    transfer, it is not the trustee’s duty. Under current Commission
    regulations, FCMs are responsible for meeting the requirements under
    such regulations for customer accounts. The proposed revision would
    recognize these obligations under already existing regulations and
    would clarify that such obligations apply when an FCM is a transferee.
    Accordingly, the Commission does not anticipate any material cost from
    this proposed revision. Under one interpretation of the current
    regulation, the trustee would need to do further diligence in order to
    make the determination whether the transferee would continue to meet
    minimum financial requirements. Where time is of the essence in making
    a transfer, and given the transferee’s superior knowledge as to its own
    financial status, it would be more appropriate to leave this
    responsibility with the transferee,220 and not to impose any such
    responsibility on the trustee. The trustee’s resources could be better
    spent on other tasks for the debtor estate. Accordingly, the proposed
    clarification would reduce administrative burden as well.
    —————————————————————————

        220 The focus here is on the responsibilities of the
    transferee in contrast to those of the trustee. This is without
    prejudice to any review of the transferee’s status by any DCOs or
    SROs of which the transferee is a member, or of any regulators
    (including the Commission) with jurisdiction over the transferee.
    —————————————————————————

        Proposed Sec.  190.07(b)(3) is a new provision. It would permit a
    transferee to accept open commodity contracts and associated property
    prior to completing customer diligence requirements, provided that such
    diligence is completed as soon as practicable thereafter, and no later
    than six months after transfer. It recognizes that customer diligence
    processes would have already been required to have been completed by
    the debtor FCM with respect to each of its customers as part of opening
    their accounts. The proposal would provide a benefit to customers and
    transferee clearing members and trustees, by facilitating the transfer
    process.221 If such flexibility were not provided, under the current
    regulations, transfer might not be accomplished, or may not be
    accomplished promptly, and liquidation might be the only available
    option. As discussed in proposed Sec.  190.00(c)(4), it is preferable
    to avoid liquidation, as liquidation is much more disruptive to markets
    and to the customers of the defaulted FCM. The proposal would recognize
    the importance of the account opening diligence requirements and would
    mitigate the risk from delay by requiring the diligence to be performed
    as soon as practicable and setting an outer limit at six months, unless
    that time is extended by the Commission.
    —————————————————————————

        221 The corresponding costs would arise from the possibility
    that the transferee’s diligence would reveal problems that had been
    missed by the debtor FCM’s customer diligence process, or arose
    subsequent to the time that the original process was conducted, and
    that conducting the revised diligence more promptly would sooner
    reveal the concerns, thus permitting them to be addressed more
    expeditiously.
    —————————————————————————

        Proposed Sec.  190.07(b)(4) is also new. It would clarify that
    account agreements governing a transferred account are deemed assigned
    to the transferee until and unless a new agreement is reached. The
    provision would also explain that consequences for breaches pre-
    transfer are borne by the transferor rather than the transferee.
    Proposed Sec.  190.07(b)(4) would codify the industry understanding
    regarding the legal implications for transfer agreements and thus the
    primary benefit is to provide transparency to the industry. The
    Commission does not anticipate that there would be material costs
    associated with the change.
        Proposed Sec.  190.07(b)(5) would carry forward current Sec. 
    190.02(c), and would provide that in the event of transfer, customer
    instructions that are received by the debtor with respect to any open
    commodity contracts or specifically identifiable property should be
    transmitted to the transferee, who should comply with such instructions
    to the extent practicable. The slight revisions to current Sec. 
    190.02(c) would be merely clarifications, and there would be no costs
    or benefits associated with such revisions.
        Proposed Sec.  190.07(c) would revise current Sec.  190.06(e). The
    proposed revision would change the language “all accounts are eligible
    for transfer” in current Sec.  190.06(e)(1) to “all commodity
    contract accounts (including accounts with no open commodity contract
    positions) are eligible for transfer . . .” This change would
    recognize explicitly that accounts can be transferred if the accounts
    are intended for trading commodities, but do not include any open
    commodity contracts at the time of the order for relief. The revision
    would clarify the current language and would not change the types of
    accounts that can be transferred. Accordingly, the Commission does not
    anticipate that there would be material added cost associated with the
    revision.
        Proposed Sec.  190.07(d) would revise special rules for transfers
    under section 764(b) of the Bankruptcy Code, set forth in primarily in
    current Sec.  190.06(f). Proposed Sec.  190.07(d)(2)(i) would state
    that the Commission will not disapprove such a transfer for the sole
    reason that it was a partial transfer.” Current Sec.  190.06(f)(3)(i)
    sets forth that the Commission will not disapprove such a transfer for
    the sole reason that it was a partial transfer if it would prefer the
    transfer of accounts, the liquidation of which could adversely affect
    the market or the bankrupt estate. The revision would be made to
    promote transfer. Cost and benefit considerations related to transfer
    are as discussed above.222
    —————————————————————————

        222 See section II.B.5 above.
    —————————————————————————

        Several changes would be proposed in Sec.  190.07(d)(2)(ii). First,
    the Commission would clarify that associated property (i.e.,
    collateral) would be transferred along with open commodity contracts,
    and thus would insert the term “property” throughout the section.
    This change would clarify the current regulation and would not have an
    associated cost. Second, the

    [[Page 36058]]

    Commission would create a limitation on partial transfers where netting
    sets would be broken and customers’ net equity claims would increase.
    Trustees would therefore not permit partial transfers where individual
    customers would be in a worse position (with respect to margin) if the
    partial transfer were completed. While this provision would require the
    trustee to consider the impact of partial transfer, under current
    regulations, the trustee is already required to consider the extent to
    which a partial transfer would impact customer net equity claims
    against the FCM debtor’s estate. The revised regulation would provide a
    benefit to customers by codifying this limitation. Third, Sec. 
    190.07(d)(2)(ii) would be revised to add language that clarifies that
    liquidation could either crystalize gains or have the effect of
    reducing the required margin. This change would have a similar impact
    to the limitation on partial transfers just considered. It would codify
    a consideration the trustee should already be addressing, and as such,
    would not create an additional cost. Finally, the Commission would
    insert language in Sec.  190.07(d)(2)(ii) that would clarify that the
    trustee is required to protect customers holding spread or straddle
    positions from the breaking of netting sets, but only to the extent
    practicable, given the circumstances. The inserted language would steer
    the trustee toward respecting spreads and straddles, but would give the
    trustee more flexibility than the current regulation, so that the
    trustee can respond to the stressed market conditions and provide the
    best outcome for the FCM debtor estate and customers generally. The
    proposed insertion would recognize that there may be circumstances
    where partial transfer is not practicable and implies that the trustee
    makes that decision. It is therefore possible that certain customers
    holding spread or straddle positions could have positions liquidated or
    not transferred under the revised provision, or could have spreads or
    straddles broken because of the trustee’s exercise of discretion.223
    —————————————————————————

        223 See trustee discretion discussion in section IV.C.2 above.
    —————————————————————————

        Proposed Sec.  190.07(d)(3) is new and would permit a letter of
    credit associated with a commodity contract to be transferred with an
    eligible commodity contract account. If the letter of credit cannot be
    transferred (either because of its terms or because the transfer would
    result in a greater recovery of value for the customer then the
    customer is entitled to) and the customer does not deliver substitute
    property, the provision would permit the trustee to draw upon all or a
    portion of the letter of credit and treat the proceeds as customer
    property in the applicable account class. The proposed regulation would
    codify the Commission’s current intention with regards to letters of
    credit 224 and the current practice trustees have used. It would
    ensure that letters of credit are treated in an economically similar
    fashion to other types of collateral and that customers using letters
    of credit would not be given any differential economic benefit, thus
    serving the goal of pro rata distribution. There could be
    administrative costs incurred by the estate associated with drawing
    upon a letter of credit, as well as costs to the customer that posted
    the letter of credit as collateral. Such costs may be mitigated if the
    customer delivers substitute property, as set forth in the proposed
    regulation.
    —————————————————————————

        224 See ConocoPhillips, 2012 WL 4757866, and related
    discussion in section II.B.2 above.
    —————————————————————————

        Proposed Sec.  190.07(d)(4) is also new and would require a trustee
    to use reasonable efforts to prevent physical delivery property from
    being separated from commodity contract positions under which the
    property is deliverable. While this provision would impose an
    administrative cost on the estate, it is already a best practice for
    trustees; keeping delivery property with the underlying contract
    positions is necessary for (and thus would benefit) the delivery
    process. Therefore, the additional administrative cost from the revised
    regulation would be minimal. There would be no cost to customers, who
    would benefit from the codification of a standard for the trustee.
        Proposed Sec.  190.07(d)(5) would revise current Sec.  190.06(e)(2)
    by making several clarifications. The revised provision would prevent
    prejudice to customers and prohibit the trustee from making transfers
    that would result in insufficient customer property being available to
    make equivalent percentage distributions to all equity claim holders in
    the applicable account class. This change would be a clarification of
    the current requirements. It would support achieving the statutory
    policy of pro rata distribution, but would work to the detriment of any
    customer who, absent the provision, would otherwise benefit from a
    larger distribution. The Commission is further proposing to clarify
    that the trustee should make determinations based on customer claims
    reflected in the FCM’s records, and, for customer claims that are not
    consistent with those records, should make estimates using reasonable
    discretion based in each case on available information as of the
    calendar day immediately preceding transfer. The benefit here would be
    that the trustee is given discretion to make decisions based on the
    overarching principle set forth above, valuing cost effectiveness over
    precise values of entitlement. However, the same potential costs would
    apply–risk of mistake or misfeasance.
        Proposed Sec.  190.07(e) would revise current Sec.  190.06(g). The
    proposal would add language to clarify that transfers are approved by
    the Commission pursuant to the procedure set forth in the Bankruptcy
    Code and adding specific citations to the Code. Throughout proposed
    Sec.  190.07(e), the Commission would insert “or customer property”
    following “the transfer of commodity contract accounts” to clarify
    that transfers of commodity contract accounts include the associated
    customer property. These revisions would be clarifications or
    reorganizations, and there would be no costs or benefits associated
    with the revisions.
        Proposed Sec.  190.07(e)(1)(iii) would add a provision that would
    prohibit the trustee from avoiding a transfer from “a receiver that
    has been appointed for the FCM that is now a debtor.” The new
    provision would be added in order to respect the actions of a receiver
    that is acting to protect the property of the FCM that has become the
    debtor in bankruptcy. It would provide certainty to the actions of such
    a receiver, whose duties, among others, include protecting the customer
    property of the FCM. However, to the extent that the receiver takes
    actions that are, considered in retrospect, mistaken or ill-advised, a
    possibility which cannot be foreclosed given the exigencies of an FCM
    receivership, the proposal would prevent the correction of such
    actions.
        In proposed Sec.  190.07(e)(2)(i), the Commission would revise
    current Sec.  190.06(g)(2)(i) to modify the term “SRO/commodity
    broker” to “clearing organization” because the only entities who can
    perform the transfers that are subject to the provision are the
    trustee, and, in certain circumstances, clearing organizations. This
    revision would be a clarification and would not have any associated
    cost.
        Proposed Sec.  190.07(f) would revise Sec.  190.06(h) regarding
    Commission action. The provision would clarify that the Commission may
    prohibit the transfer of a particular set or sets of the commodity
    contract accounts, or permit the transfer of a particular set or sets
    of commodity contract accounts that do not comply with the requirements
    of the

    [[Page 36059]]

    section. In addition, the Commission would clarify that the transfers
    of the commodity contract accounts includes the associated customer
    property. These revisions would be clarifications and would not have
    any associated costs.
    b. Request for Comment
        The Commission requests comment on all aspects of its cost and
    benefit considerations with respect to proposed Sec.  190.07. Are there
    additional costs or benefits that the Commission should consider? Are
    there any alternatives that could provide preferable costs or benefits
    than the costs and benefits related to the proposed amendments
    discussed above? Commenters are encouraged to include both qualitative
    and quantitative assessments of any costs and benefits.
    6. Regulation Sec.  190.08: Calculation of Allowed Net Equity
    a. Consideration of Costs and Benefits
        In proposed Sec.  190.08, the Commission would incorporate much of
    current Sec.  190.07, though with certain revisions, but also would
    delete parts of current Sec.  190.07.
        The Commission is proposing to delete current Sec.  190.07(b)(6),
    (c)(2)(v), and (d) 225 from the proposed rule text, all of which
    involve how to adjust the calculation of allowed net equity with
    respect to accounts remaining open after the primary liquidation date.
    The reason for these proposed deletions is that under the revised
    definition of the term “primary liquidation date,” all commodity
    contracts would be liquidated or transferred prior to the primary
    liquidation date–none would be held open for transfer thereafter.
    Therefore, since no accounts would remain open subsequent to the
    primary liquidation date, these sections would be rendered moot.
    Accordingly, the Commission does not anticipate any associated costs or
    benefits.
    —————————————————————————

        225 In addition, as noted above, because the Commission is
    proposing to delete current Sec.  190.07(d) from the proposed rule
    text, the Commission is also proposing to delete the reference to
    such provision in proposed Sec.  190.08(a).
    —————————————————————————

        Proposed Sec.  190.08(b) would set forth the steps for a trustee to
    follow when calculating each customer’s net equity. While proposed
    Sec.  190.08(b) would contain several revisions from its analog in
    current Sec.  190.07(b), most of the revisions would be non-substantive
    and would clarify, not change, the meaning of the provisions in current
    Sec.  190.07(b). The cost and benefit considerations of the substantive
    changes to proposed Sec.  190.08(b) are discussed below.
        First, proposed Sec.  190.08(b)(1) would set forth instructions for
    determining the equity balance of each commodity contract account of a
    customer. Proposed Sec.  190.08(b)(1)(ii) would provide instructions on
    how to calculate a customer’s ledger balance, which goes into
    determining that customer’s equity balance. Proposed Sec. 
    190.08(b)(1)(ii)(A)(4) is new, and would provide that a customer’s
    ledger balance includes “the face amount of any letter of credit
    received, acquired or held to margin, guarantee, secure, purchase, or
    sell a commodity contract.” This treatment would balance the fact that
    any portion of a posted letter of credit that is not drawn upon would
    be treated as distributed to the customer. This new provision could
    result in administrative costs, since the trustee could, if a
    particular customer has posted a letter of credit as margin for a
    commodity contract, be required to take the extra step of determining
    the value of such letter of credit in calculating that customer’s
    equity balance. However, this provision could benefit customers posting
    letters of credit: Absent this addition to the rule text, such
    customers were not explicitly guaranteed that their letters of credit
    would be taken into account in calculations of their equity
    balance.226
    —————————————————————————

        226 The Commission considered similar costs and benefits when
    it proposed adding other references to letters of credit in proposed
    Sec.  190.08. For instance, proposed Sec.  190.08(c), which would
    set forth instructions for calculating the funded balance, includes
    in the computation “the value of letters of credit received,
    acquired or held to margin, guarantee, secure, purchase, or sell a
    commodity contract related to all customer accounts of the same
    class.” In addition, proposed Sec.  190.08(d)(4) would set the
    value of a letter of credit “received, acquired or held to margin,
    guarantee, secure, purchase, or sell a commodity contract” as its
    face amount less the amount, if any, drawn and outstanding. These
    new provisions regarding letters of credit could result in
    administrative costs, in that they could involve certain additional
    steps being taken by the trustee with respect to calculating the
    allowed net equity of each customer when certain customers have
    posted letters of credit to margin their commodity contracts, but
    they would also benefit customers posting letters of credit, who
    would have explicit assurance that any such letters of credit would
    be taken into account in such calculations.
    —————————————————————————

        Second, proposed Sec.  190.08(b)(2) would provide instructions to
    the trustee regarding how to determine whether accounts are held in the
    same capacity or in separate capacities, for purposes of aggregating
    the credit and debit equity balances of all accounts of the same class
    held by a customer in the same capacity. Proposed Sec. 
    190.08(b)(2)(viii), similar to current Sec.  190.07(b)(2)(viii), would
    note that futures accounts, delivery accounts, and cleared swaps
    accounts of the same person shall not be deemed to be held in separate
    capacities, although such accounts may be aggregated in accordance with
    paragraph (b)(3) of the section. Current Sec.  190.07(b)(2)(viii) is
    subject to one exception, paragraph (b)(2)(ix) of the section, which
    sets forth that an omnibus customer account of an FCM shall be deemed
    to be held in a separate capacity from the house account and any other
    omnibus customer account of such person. Proposed Sec. 
    190.08(b)(2)(viii) would also be subject to exception from paragraph
    (b)(ix) and would add another exception, from paragraph (b)(2)(xiv),
    which would reflect that accounts held by a customer in separate
    capacities shall be deemed to be accounts of separate customers. This
    change provides additional cross-references and clarifies the existing
    regulations, but does not change any obligations. Accordingly, there is
    no cost from the revisions.
        Proposed Sec.  190.08(b)(2)(xi), like its analog in current Sec. 
    190.07(b)(2)(xi), would state that certain retirement or pension
    accounts maintained with the debtor FCM shall be deemed to be held in a
    separate capacity from an account held in an individual capacity by the
    retirement or pension plan administrator, or by any employer, employee,
    participant, or beneficiary with respect to such plan. While current
    Sec.  190.07(b)(2)(xi) would refer only to retirement or pension plans
    under ERISA, proposed Sec.  190.08(b)(2)(xi) would expand the scope of
    retirement and pension plans that would be described in this provision
    to include such plans under similar Federal, state or foreign laws or
    regulations. This provision could result in administrative costs,
    because the trustee would need to ensure that all accounts in the name
    of a retirement or pension plan as described in proposed Sec. 
    190.08(b)(2)(xi) would be properly categorized as being held in a
    separate capacity from accounts held in an individual capacity by the
    plan administrator, or by any employer, employee, participant, or
    beneficiary with respect to such plan. The benefit of this change would
    be to foster the achievement of the statutory policies favoring
    retirement accounts and pension plans.
        While the Commission would make certain revisions in proposed Sec. 
    190.08(b)(3), (b), and (5), as described above, the Commission views
    such revisions as non-substantive and would merely clarify the text in
    the current analogous provisions. Thus, the Commission would not expect
    these changes to result in any costs or benefits.
        Proposed Sec.  190.08(c) would set forth instructions for
    calculating each customer’s funded balance. As noted

    [[Page 36060]]

    above in section II.B.6, the references to calculation as of the
    primary liquidation date would be deleted, because the funded balance
    (i.e., each customer’s pro rata share of the customer estate with
    respect to an account class) is relevant both before the primary
    liquidation date as well as after.
        In addition, proposed Sec.  190.08(c)(1)(ii) would provide that, in
    calculating each customer’s funded balance, the trustee should add any
    margin payment made between (i) the entry of the order for relief or,
    in an involuntary case, the date on which the petition for bankruptcy
    is filed, and (ii) the primary liquidation date. In the analogous
    current provision, the text did not account for the possibility of an
    involuntary proceeding, so the Commission is proposing to add text to
    account for such possibility. This revision would promote the goal of
    fair distribution. It would likely benefit those customers of a debtor
    in an involuntary bankruptcy proceeding who make margin payments
    between the date on which the petition for bankruptcy is filed and the
    primary liquidation date, in that those payments would be taken into
    account when the trustee is calculating their funded balance under the
    proposed rules; it would correspondingly act to the detriment of other
    customers.
        In proposed Sec.  190.08(d), the Commission is proposing in general
    to implement changes to provide more flexibility to the trustee in
    valuing commodity contracts and other property held by or for a
    commodity broker. For instance, the Commission is proposing to delete
    current Sec.  190.07(e)(2) and (3), regarding the valuation of
    principal contracts and bucketed contracts, respectively, in favor of
    the more generalized approach to valuing property set forth in proposed
    Sec.  190.08(d)(5). Moreover, in proposed Sec.  190.08(d)(5), which is
    based on current Sec.  190.07(e)(5), the Commission is proposing to
    delete the requirement that the trustee seek approval of the court
    prior to enlisting professional assistance to value customer property.
    These changes would benefit the estate by providing the trustee with
    more flexibility to determine how to value certain customer property,
    including whether or not to enlist professional assistance in doing so.
    Likewise, these revisions would serve the goal of a pro rata
    distribution to customers, as the accurate valuation of customer
    property can benefit from the input of a professional. On the other
    hand, affording the trustee increased discretion in how to value
    commodity contracts and other property held by a debtor could carry the
    potential cost of mistake, misfeasance or abuse of discretion by the
    trustee, as discussed above, or possibly by the professional whose
    service is retained.
        With respect to some of the specific provisions within proposed
    Sec.  190.08(d), the Commission is proposing substantial changes with
    respect to the valuation of commodity contracts. First, the Commission
    is proposing to separate more explicitly the instructions concerning
    the valuation of (1) open commodity contracts, and (2) liquidated
    commodity contracts. With respect to open commodity contracts, the
    Commission would retain the provision that the value of an open
    commodity contract shall be equal to the settlement price as calculated
    by the clearing organization pursuant to its rules. However, the
    Commission is proposing that such clearing organization rules no longer
    need to be approved by the Commission in order to be used in valuing
    such contracts for purposes of computing net equity. The benefits and
    costs of that change in approach are discussed above with respect to
    proposed Sec.  190.04(e).
        With respect to commodity contracts that have been transferred,
    proposed Sec.  190.08(d)(1)(i) would provide that such contracts be
    valued at the end of the last settlement cycle on the day preceding
    such transfer, rather than at the end of the settlement cycle in which
    it is transferred. Again, this revision would benefit both the estate
    and customers by making it practical to calculate the value of the
    transferred commodity contracts prior to the transfer.
        With respect to liquidated commodity contracts, the Commission is
    proposing that the value of such contracts shall equal the value
    realized on liquidation of the contract. However, in certain
    circumstances, proposed Sec.  190.08(d)(1)(ii) also would allow the
    trustee to either (1) use the weighted average of commodity contracts
    liquidated within a 24-hour period or business day, or (2) use the
    settlement price calculated by a clearing organization for commodity
    contract liquidated as part of a bulk auction by a clearing
    organization. With respect to the weighted average provision, the
    Commission is proposing to change the time period within which such
    contracts must be liquidated in order for the trustee to use the
    weighted average, from “on the same date” (as provided in current
    Sec.  190.07(e)) to “within a 24 hour period or business day.” This
    change would benefit the estate and the goal of pro rata distribution,
    since it has been proposed in order to bring the time frame more in
    line with how settlement cycles and business days work.227 In
    addition, the Commission is proposing to add the provision regarding
    valuation in the case of a bulk auction by a clearing organization. In
    the Commission’s view, such an addition would benefit the estate by
    providing the trustee with another option for determining appropriately
    the value of commodity contracts that were liquidated as part of a bulk
    auction.
    —————————————————————————

        227 The trading day is generally not the same as the calendar
    day, but instead may run from e.g., 5 p.m. on one business day until
    4:59 p.m. on the next. Closing prices for contracts would thus be
    set at the end of the trading day, not at the end of the calendar
    day.
        This consideration of costs and benefits also applies to
    proposed Sec.  190.08(d)(2), which would incorporate the same
    weighted average concept as in proposed Sec.  190.08(d)(1)(ii)(A).
    —————————————————————————

        In proposed Sec.  190.08(d)(4), which would set forth the valuation
    method for commodities held in inventory, the Commission is proposing
    to allow the trustee, in circumstances where the fair market value of
    the commodity held in inventory is not readily ascertainable, to value
    the commodity in accordance with proposed Sec.  190.08(d)(5), discussed
    above. This change would benefit both the estate, since the trustee
    would have the flexibility to value a commodity held in inventory using
    such professional assistance as they deem necessary, as well as the
    customers, who would benefit from a more appropriate valuation due to
    the trustee’s increased flexibility in determining such valuation. It
    would again, however, involve the costs of possible mistake,
    misfeasance or abuse of discretion discussed above.
    b. Request for Comment
        The Commission requests comment on all aspects of its cost and
    benefit considerations with respect to proposed Sec.  190.08. Are there
    additional costs or benefits that the Commission should consider? Are
    there any alternatives (e.g., approaches that will more likely lead to
    accurate valuation) that could provide preferable costs or benefits
    than the costs and benefits related to the proposed amendments
    discussed above? In particular, do the proposed rules strike an
    appropriate balance of discretion and prescription? Commenters are
    encouraged to include both qualitative and quantitative assessments of
    any costs and benefits.
    7. Regulation 190.09: Allocation of Property and Allowance of Claims
    a. Consideration of Costs and Benefits
        In proposed Sec.  190.09, the Commission would incorporate much of
    current

    [[Page 36061]]

    Sec.  190.08, though with certain revisions and additions. Proposed
    Sec.  190.09(a)(1) would define the scope of “customer property” that
    is available to pay the claims of a debtor FCM’s customers, and
    proposed Sec.  190.09(a)(1)(i) would set forth the categories of
    “cash, securities, or other property or the proceeds of such cash,
    securities, or other property received, acquired, or held by or for the
    account of the debtor, from or for the account of a customer” that are
    included in customer property. The Commission is proposing certain
    substantive changes to the categories listed in proposed Sec. 
    190.09(a)(1)(i), as discussed below:
         First, proposed Sec.  190.09(a)(1)(i)(D) is a new
    paragraph that would provide that customer property includes any
    property “received by the debtor as payment for a commodity to be
    delivered to fulfill a commodity contract from or for the commodity
    customer account of a customer.” While the Commission’s intention was
    always to include such property within the definition of “customer
    property,” clarifying this explicitly would benefit both the estate
    and customers by avoiding confusion or potential litigation.
         Second, proposed Sec.  190.09(a)(1)(i)(F) would provide
    that letters of credit, including proceeds of letters of credit drawn
    by the trustee, or substitute customer property, constitute “customer
    property.” This paragraph would be revised to be consistent with the
    other letters of credit provisions that would be added throughout the
    proposed part 190. The Commission does not anticipate that this
    provision would result in any material costs or benefits, as current
    Sec.  190.08(a)(1)(i) already includes a provision regarding letters of
    credit.228
    —————————————————————————

        228 The costs and benefits of the underlying policy decision
    to take steps to ensure that customers posting letters of credit are
    treated (with respect to pro rata allocation of losses) in a manner
    consistent with the manner in which customers posting other forms of
    collateral are treated are discussed in connection with proposed
    Sec.  190.04(d)(3) in section IV.E.2 above.
    —————————————————————————

        Proposed Sec.  190.09(a)(1)(ii) would set forth the categories of
    “[a]ll cash, securities, or other property” that would be included in
    customer property. The Commission is proposing certain substantive
    changes to the categories listed in Sec.  190.09(a)(1)(ii), as
    discussed below:
         First, proposed Sec.  190.09(a)(1)(ii)(D) would provide
    that any cash, securities, or other property that was property
    received, acquired or held to margin, guarantee, secure, purchase, or
    sell a commodity contract and that is subsequently recovered by the
    avoidance powers of the trustee or is otherwise recovered by the
    trustee on any other claim or basis constitutes customer property. The
    current version of this provision refers only to the trustee’s
    avoidance powers (leaving out the possibility for recovery other than
    through avoidance powers). The Commission’s proposed revisions to this
    paragraph would benefit the estate, by assuring that any property they
    recover would be included in the pool of customer property, no matter
    the method of recovery, rather than going to some other creditor (to be
    sure, those other creditors would receive correspondingly less).
         Second, proposed Sec.  190.09(a)(1)(ii)(G) is new, and
    would provide that any current assets of the debtor in the greater of
    (i) the amount that the debtor would be obligated to be set aside as
    its targeted residual interest amount, or (ii) the debtor’s obligations
    to cover debit balances or under-margined amounts, constitutes customer
    property. This new provision would result in administrative costs,
    because the trustee would need to take the extra step of determining
    whether any current assets of the debtor need to be set aside as
    customer property and, if so, how much. This provision would benefit
    customers (and serve the policy of protecting customer collateral),
    however, because it would mitigate the risk of a shortfall in customer
    funds by ensuring that the trustee would fulfill the Commission’s
    regulations that require an FCM to put certain funds into segregation
    on behalf of customers. This would result in such funds being included
    in the pool of customer property, rather than going to some other
    creditor. It would, to the same extent, operate to the detriment of
    general creditors.
         Third, proposed Sec.  190.09(a)(1)(ii)(K) is also new, and
    would provide that any cash, securities, or other property that is
    payment from an insurer to the trustee arising from or related to a
    claim related to the conversion or misuse of customer property
    constitutes customer property. This provision would benefit customers
    (and, again, the policy of protecting customer collateral), since any
    insurance payment as described in this proposed section would enlarge
    the pool of customer property, rather than going to some other
    creditor.229 It could result in administrative costs, however, as the
    trustee would need to spend time and resources in order to determine
    whether any such insurance payments exist, and in prosecuting such
    insurance claims.
    —————————————————————————

        229 It would, again, to the same extent, act to the detriment
    of general creditors.
    —————————————————————————

         Fourth, the second sentence of proposed Sec. 
    190.09(a)(1)(ii)(L) is new, and would provide customer property for
    purposes of these regulations includes any “customer property,” as
    that term is defined in SIPA, that remains after satisfaction of the
    provisions in SIPA regarding allocation of customer property
    constitutes customer property. This provision would benefit commodity
    customers (and act to the detriment of general creditors) because any
    securities customer property remaining after full allocation to
    securities customers would enlarge the pool of commodity customer
    property. It could result in administrative costs, however, since the
    trustee could need to spend time and resources determining the extent
    to which such property is left over after allocation to customers in a
    SIPA proceeding.230
    —————————————————————————

        230 The Commission further notes that the first sentence of
    proposed Sec.  190.09(a)(1)(ii)(L), which would provide that
    customer property would include any cash, securities, or other
    property in the debtor’s estate, but only to the extent that the
    customer property under the other definitional elements is
    insufficient to satisfy in full all claims of the debtor’s public
    customers, would impose no costs and benefits because such provision
    already appears in current Sec.  190.08, and the only changes to the
    provision would be non-substantive updates to cross-references.
    —————————————————————————

        Proposed Sec.  190.09(a)(2) sets forth the categories of property
    that are not included in customer property. The Commission has proposed
    certain substantive changes to the categories listed in proposed Sec. 
    190.09(a)(2), as discussed below:
         First, in proposed Sec.  190.09(a)(2)(iii), the Commission
    would add explicit language to state that only those forward contracts
    that are not cleared by a clearing organization are excluded from the
    pool of customer property. This revision would benefit customers (and
    act to the detriment of general creditors), since the pool of customer
    property would increase by explicitly including any cleared forward
    contracts.
         Second, proposed Sec.  190.09(a)(2)(v) would provide that
    any property deposited by a customer with a commodity broker after the
    entry of an order for relief that is not necessary to meet the margin
    requirements of such customer is not customer property. The deletion of
    the word “maintenance” before “margin” would eliminate any
    distinction between initial and variation margin; this deletion would
    benefit the estate by ensuring that any amount deposited by a customer
    after the entry of an order for relief that is necessary to meet that
    customer’s margin

    [[Page 36062]]

    requirements would be included in the pool of customer property. It
    also would benefit customers who post excess margin, who could be
    assured that any such excess margin they deposit after the entry of an
    order for relief will remain their property and will not be included in
    the pool of customer property. This provision would correspondingly act
    to the detriment of general creditors.
         Third, proposed Sec.  190.09(a)(2)(viii), which is new,
    would provide that any money, securities, or other property held in a
    securities account to fulfill delivery, under a commodity contract that
    is a security futures product, from or for the account of a customer,
    is excluded from customer property. This provision avoids conflict with
    the resolution, under SIPA, of claims for securities and related
    collateral.
        Proposed Sec.  190.09(a)(3), which is new, would give the trustee
    the authority to assert claims against any person to recover the
    shortfall of customer property enumerated in certain paragraphs
    elsewhere in proposed Sec.  190.09(a). This provision could impose
    administrative costs, since the trustee could have to expend time and
    resources to assert and prosecute such claims to make up for any
    shortfall in customer property. The provision would, however, benefit
    customers, since it would ensure that the trustee would be in a
    position to recover any such shortfalls and would give the trustee
    authority to take action to do so. Moreover, since this provision would
    make explicit what is implicit in current part 190, an additional
    benefit of this provision would be reduced litigation costs over a
    trustee’s authority to engage in attempts to recover shortfalls in
    customer property.231
    —————————————————————————

        231 While the persons against whom such claims are
    successfully asserted may perceive a subjective cost, the Commission
    does not find these costs relevant to the analysis, as those persons
    would simply be forced to pay what they rightfully owe the debtor
    FCM’s estate.
    —————————————————————————

        Proposed Sec.  190.09(b) would add the phrase “or attributable
    to” when describing how to treat property segregated on behalf of or
    attributable to non-public customers (”house accounts”); the addition
    of this phrase, as described above, would clarify that proposed Sec. 
    190.09(b)(1) would apply both to property that is in the debtor’s
    estate at the time of the bankruptcy filing, as well as property that
    is later recovered by the trustee and becomes part of the debtor’s
    estate at the time of recovery. This additional phrase would benefit
    public customers and the statutory policy in favor of them (and
    correspondingly act to the detriment of non-public customers), since it
    could increase the amount of property that is treated as part of the
    public customer estate. It could impose administrative costs because it
    could take time and resources to properly allocate any property that is
    recovered after the time the bankruptcy is filed.232
    —————————————————————————

        232 Proposed Sec.  190.09(c)(1) would have a similar change in
    the addition of the phrase “or recovered by the trustee on behalf
    of or for the benefit of an account class,” which is meant to
    clarify that any property recovered by the trustee on behalf of or
    for the benefit of a particular account class after the bankruptcy
    filing must be allocated to the customer estate of that account
    class. This revision would present similar costs and benefits to
    those discussed above.
    —————————————————————————

        Proposed Sec.  190.09(c)(1)(ii) is a new provision that would
    instruct the trustee, in the event there is property remaining
    allocated to a particular account class after payment in full of all
    allowed customer claims in that account class, to allocate the excess
    in accordance with proposed Sec.  190.09(c)(2), which in turn would set
    forth the order of allocation for any customer property that could not
    be traced to a specific customer account class. These provisions would
    benefit public customers who would otherwise face shortfalls (and then,
    non-public customers who would otherwise face shortfalls). Since these
    provisions would make explicit what is implicit in current part 190, an
    additional benefit of these provisions would result from the increased
    clarity over what to do with any excess customer property. However, the
    provisions would act to the detriment of general creditors who, under
    the current regime, could have been more likely to receive any excess
    customer property in the absence of an explicit provision providing
    what to do with any such excess customer property.
        Proposed Sec.  190.09(d) would govern the distribution of customer
    property. The only substantive change in proposed Sec.  190.09(d) from
    its analog in current Sec.  190.08(d) would be in proposed Sec. 
    190.09(d)(1)(i) and (ii), which would import the concept of
    “substitute customer property.” Whereas current Sec.  190.08(d)(1)(i)
    and (ii) require customers to deposit cash in order to obtain the
    return of specifically identifiable property, proposed Sec. 
    190.09(d)(1)(i) and (ii) would allow the posting of “substitute
    customer property.” This term, which would be defined in proposed
    Sec.  190.01, would mean cash or cash equivalents. This revision would
    benefit customers because it would make it easier for customers to
    redeem their specifically identifiable property by no longer limiting
    customers to only using cash to do so. It could, however, impose
    administrative costs in the form of time and resources of the trustee,
    who, in the event a customer chooses to post cash equivalents to redeem
    their specifically identifiable property, would be required to value
    (and potentially to liquidate) such cash equivalents.
    b. Request for Comment
        The Commission requests comment on all aspects of its cost and
    benefit considerations with respect to proposed Sec.  190.09. Are there
    additional costs or benefits that the Commission should consider? Are
    there any alternatives that could provide preferable costs or benefits
    than the costs and benefits related to the proposed amendments
    discussed above? Commenters are encouraged to include both qualitative
    and quantitative assessments of any costs and benefits.
    8. Regulation Sec.  190.10: Provisions Applicable to Futures Commission
    Merchants During Business as Usual
    a. Consideration of Costs and Benefits
        Proposed Sec.  190.10 addresses provisions applicable to FCMs
    during business as usual.
        In Sec.  190.10(a), the Commission would note that an FCM is
    required to maintain current records related to its customer accounts,
    consistent with current Commission regulations, and in a manner that
    would permit them to be provided to another FCM in connection with the
    transfer of open customer contracts and other customer property. The
    proposed regulation would not impose new obligations, but rather would
    inform the trustee regarding their duties by incorporating references
    to the Commission’s existing regulations.
        Proposed Sec.  190.10(b) would incorporate concepts in current
    Sec. Sec.  190.04(e), 190.06(d), and the current Bankruptcy appendix
    form 3 instructions. Under this new provision, an FCM would be
    permitted to rely solely upon written record of the customer’s
    representation of hedging intent regarding the designation of a hedging
    account, thus mitigating administrative costs.
        Proposed Sec.  190.10(b)(1) would require an FCM to provide a
    customer an opportunity to designate an account as a hedging account
    when the customer first opens the account, allowing for clearing
    instruction to FCMs at the outset of the relationship. This provision
    is new, with regards to the timing of the opportunity. Clear
    instruction at the outset would facilitate the ability properly to
    account for customer property. There would be

    [[Page 36063]]

    some disclosure and accounting costs associated with this provision.
    The proposed regulation would require FCMs to give customers the
    opportunity to provide instructions as to whether an account is a
    hedging account at opening, including those who will never enter into
    hedging accounts. For those customers that do engage in hedging, it
    would be more cost effective to designate the account at opening, when
    both customer and FCM are focused on the specifics of the relationship
    between them, than to monitor the transactions for the first qualifying
    transaction to provide the opportunity to make the designation, as
    applicable under the current regulation. Thus, the proposed regulation
    would reduce the probability that the opportunity to designate the
    account as a hedging account will be missed.
        Proposed Sec.  190.10(b)(2) would set forth the conditions for
    treating an account as a hedging account. The current Sec.  190.06(d)
    requires written hedging instructions for such treatment to be given.
    By contrast, proposed Sec.  190.10(b)(2) would permit such treatment
    upon the customer’s written representation that their trading would
    constitute hedging as defined under any relevant Commission rule or the
    rule of a DCO, DCM, SEF, or FBOT. This provision is new and would
    follow from the designation of the accounts. There would be accounting
    burdens for FCMs and customers associated with the provision.
        In proposed Sec.  190.10(b)(3), the Commission would provide that
    the requirements in Sec.  190.10(b)(1)-(2) would not apply to commodity
    contract accounts opened prior to the effective date of the revisions
    to part 190 and that an FCM could continue to designate existing
    accounts as hedging accounts based on written hedging instructions
    obtained under current regulations. This provision would mitigate the
    impact of the changes to current requirements in proposed Sec. 
    190.10(b)(1)-(2) by not applying those provisions to already opened
    hedging accounts and would give FCMs the ability to continue to
    designated already-open hedging accounts based upon the information
    collected and maintained during the current regulatory framework.
        Proposed Sec.  190.10(b)(4) would permit an FCM to designate an
    existing customer account as a hedging account for purposes of
    bankruptcy treatment, provided that the FCM obtains the necessary
    customer representation. This provision would give FCMs and customers
    flexibility to apply the proposed regulations to existing accounts
    where the impact would not be overly burdensome.
        In proposed Sec.  190.10(c), the Commission would address the
    establishment of delivery accounts during business as usual. The
    Commission would recognize that when an FCM facilitates delivery under
    a customer’s physical delivery contract and such delivery is effected
    outside of a futures account, foreign futures account, or cleared swaps
    account, it must be effected through (and the associated property held
    in) a delivery account.233 Delivery accounts are of particular
    importance during bankruptcy although there are costs associated with
    the opening and maintenance of such accounts. The use of such accounts
    is considered to be cost effective in facilitating delivery.234 The
    benefit of using such accounts would be twofold: To protect customer
    assets during the delivery process, and to foster the integrity of the
    delivery process itself.
    —————————————————————————

        233 As noted above in the discussion of proposed Sec. 
    190.10(c) in section II.B.8, if the commodity that is subject to
    delivery is a security, the FCM may instead effect delivery through
    (and the property may be held in) a securities account.
        234 The Commission further understands that it is already
    industry practice to use such accounts, therefore, as a practical
    matter, the cost associated with mandating the use of such accounts
    would be mitigated.
    —————————————————————————

        Proposed Sec.  190.10(d) is new. It would address letters of credit
    and would prohibit and FCM from accepting a letter of credit during
    business as usual unless certain conditions are met at the time of
    acceptance and remain true through the date of expiration. First, the
    trustee would be required to be able to draw upon the letter of credit
    in full or in part in the event of a bankruptcy proceeding, the entry
    of a protective decree under SIPA, or the appointment of FDIC as
    receiver pursuant to Title II of the Dodd-Frank Act. Second, if the
    letter of credit would be permitted to be and would in fact be passed
    through to a clearing organization, the trustee for such clearing
    organization (or the FDIC) would be required to be able to draw upon
    the letter of credit in full or in part in the event of a bankruptcy
    proceeding (or where the FDIC is appointed as receiver). In addition,
    proposed Sec.  190.00(c)(5) would clarify that the trustee is required
    to treat letters of credit in a manner consistent with pro rata
    distribution and is permitted to draw upon the full amount of unexpired
    letters of credit or any portion thereof or treat the letter of credit
    as having been distributed to the customer for purposes of calculating
    entitlements to distribution or transfer.
        Proposed Sec.  190.10(d) would ensure that an FCM’s treatment and
    acceptance of letters of credit during business as usual is consistent
    with and does not preclude the trustee’s treatment of letters of credit
    in accordance with proposed Sec. Sec.  190.00(c)(5) and 190.04(d)(3).
    Letters of credit are currently widely used in the industry. The
    Commission understands that under industry practice, most existing
    letter of credit arrangements are consistent with the Joint Audit
    Committee Forms of Irrevocable Standby Letter of Credit, both Pass-
    Through and Non Pass-Through,235 and that these forms are consistent
    with the proposed new requirements. Nevertheless, FCMs would need to
    review the existing letters of credit for consistency with the
    regulation, and it is plausible that some could need to be re-
    negotiated to be consistent therewith. The Commission has considered
    the extent of the use of letters of credit in the industry and is
    proposing that upon the effective date of the regulation, proposed
    Sec.  190.10(d) would apply only to new letters of credit and customer
    agreements. The Commission further is proposing to include a transition
    period of one year from the effective date until proposed Sec. 
    190.10(d) would apply to existing letters of credit and customer
    agreements. The transition period would give FCMs an opportunity to
    conduct the necessary review of existing letters of credit and customer
    agreements, and to make any necessary changes.
    —————————————————————————

        235 See section II.B.8 above.
    —————————————————————————

        It is possible that some letters of credit could become more
    expensive if the proposed regulation is adopted as there would be an
    increased likelihood that the letter of credit will be drawn upon. (As
    discussed above, this would appear to not apply to the majority of
    existing arrangements). As noted in the discussion of proposed Sec. 
    190.04(d)(3), the benefit of the proposed regulation would be ensuring
    consistent economic treatment of letters of credit with other types of
    collateral to ensure that all forms of collateral are treated
    similarly, thus promoting the goal of pro rata distribution.
        Proposed Sec.  190.10(e) would largely aligns with the provisions
    in current part 190 from which it was derived. The statement concerning
    publication of notice in a newspaper of general circulation would be
    deleted to correspond to changes discussed in connection with proposed
    Sec.  190.03(c)(1); there would be no additional cost or benefit
    implications.

    [[Page 36064]]

    b. Request for Comment
        The Commission requests comment on all aspects of its cost and
    benefit considerations with respect to proposed Sec.  190.10. Are there
    additional costs or benefits that the Commission should consider? Are
    there any alternatives that could provide preferable costs or benefits
    than the costs and benefits related to the proposed amendments
    discussed above? Commenters are encouraged to include both qualitative
    and quantitative assessments of any costs and benefits.
    9. Section 15(a) Factors–Subpart B
    a. Protection of Market Participants and the Public
        Subpart B of the proposed rules would increase the protection of
    market participants and the public by clearly setting forth how the
    bankruptcy trustee is expected to treat the property of customers of
    FCMs in the event of an FCM insolvency, thereby promoting ex ante
    transparency for such customers.
    b. Efficiency, Competitiveness, and Financial Integrity
        Subpart B of the proposed rules would promote efficiency (in the
    sense of both cost effectiveness and timeliness) in the administration
    of insolvency proceedings of FCMs and the financial integrity of
    derivatives transactions carried by FCMs by setting forth clear
    instructions for a bankruptcy trustee to follow in the event of an FCM
    insolvency, and by updating these instructions to account for current
    market practices. Moreover, subpart B would provide the bankruptcy
    trustee with discretion, in certain circumstances, to react flexibly to
    the particulars of the insolvency proceeding, thereby promoting
    efficiency of the administration of the proceeding. These effects
    would, in turn, enhance the competitiveness of U.S. FCMs, by enhancing
    market confidence in the protection of customer funds and positions
    entrusted to U.S. FCMs, even in the case of insolvency.
    c. Price Discovery
        Price discovery is the process of determining the price level for
    an asset through the interaction of buyers and sellers and based on
    supply and demand conditions. To the extent that the proposed
    regulations would mitigate the need for liquidations in conditions of
    distress, they would avoid negative impacts on price discovery.
    d. Sound Risk Management Practices
        Subpart B of the proposed rules would promote sound risk management
    practices by encouraging the bankruptcy trustee effectively to manage
    the risk of the debtor FCM. Subpart B would accomplish this by revising
    the bankruptcy rules for an FCM insolvency that reflect current market
    practices and effectively protect customer property in the event of
    such an insolvency.
    e. Other Public Interest Considerations
        Subpart B of the proposed rules supports the implementation of
    statutory policy such as promoting protection of public customers and
    ensuring pro rata distribution of customer funds. Moreover, some of the
    FCMs that might enter bankruptcy are very large financial institutions,
    and some are (or are part of larger groups that are) considered to be
    systematically important. An effective bankruptcy process that
    efficiently facilitates the proceedings is likely to benefit the
    financial system (and thus the public interest), as that process would
    help to attenuate the detrimental effects of the bankruptcy on the
    financial system and reduce the likelihood that uncertainty as to the
    outcome of the insolvency could cause disruption to financial markets.

    F. Subpart C–Clearing Organization as Debtor

        Proposed subpart C to part 190 is intended to create a tailored set
    of regulations to govern a proceeding under subchapter IV of chapter 7
    of the Bankruptcy Code in which the debtor is a clearing organization.
    While the Commission, in promulgating part 190 in the 1980s, determined
    to “take a case-by-case approach with respect to [the bankruptcy of]
    clearing organizations,” 236 the Commission is now proposing to
    provide a more detailed set of instructions.
    —————————————————————————

        236 46 FR at 57545.
    —————————————————————————

        The overarching benefits of this approach include the following:
    (1) Uncertainty would be reduced both during business-as-usual (thus
    enhancing the ability of both clearing members and their customers
    better to understand their exposures to the possible insolvency of a
    clearing organization) and in the unlikely event of the actual
    bankruptcy (or resolution) of a clearing organization (thus enhancing
    the cost effectiveness of either process). (2) The resolution regime
    established under Title II of Dodd-Frank provides that the maximum
    liability of FDIC as receiver of a covered financial company to a
    claimant is the amount the claimant would have received if the FDIC had
    not been appointed receiver and the covered financial company had been
    liquidated under chapter 7 of the Bankruptcy Code. By establishing a
    clearer counterfactual, proposed subpart C would (a) enhance the
    ability of FDIC to plan for and to execute its responsibilities as
    receiver, (b) enhance the ability of market participants to predict in
    advance their exposures in the unlikely event of the resolution as a
    DCO, and (c) mitigate the cost of litigation over the value of such
    claims. The Commission notes that there could, to a certain extent, be
    costs imposed by proposed subpart C, in that there could be a
    corresponding reduction in flexibility with the addition of rules
    specifically tailored to address a DCO bankruptcy, but the Commission
    has attempted to draft these proposed rules with the intent of
    maintaining significant flexibility, where warranted.
    1. Regulation Sec.  190.11: Scope and Purpose of Subpart C
    a. Consideration of Costs and Benefits
        Proposed Sec.  190.11 simply would state that the new subpart C of
    part 190 would apply to a proceeding commenced under subchapter IV of
    chapter 7 of the Bankruptcy Code in which the debtor is a clearing
    organization. Therefore, the costs and benefits of proposed Sec. 
    190.11 would be the overarching costs and benefits stated above.
    b. Request for Comment
        The Commission requests comment on all aspects of its cost and
    benefit considerations with respect to proposed Sec.  190.11. Are there
    additional costs or benefits that the Commission should consider? Are
    there any alternatives that could provide preferable costs or benefits
    than the costs and benefits related to the proposed amendments
    discussed above? Commenters are encouraged to include both qualitative
    and quantitative assessments of any costs and benefits.
    2. Regulation Sec.  190.12: Required Reports and Records
    a. Consideration of Costs and Benefits
        Proposed Sec.  190.12(a)(1) would be analogous to proposed Sec. 
    190.03(a), in that it would provide instructions regarding how to give
    notice to the Commission and to a clearing organization’s members,
    where such notice would be required under subpart C. For a discussion
    of the costs and benefits of this paragraph, please refer to the
    discussion of the cost and benefit implications of proposed Sec. 
    190.03(a).
        Proposed Sec.  190.12(a)(2) would revise the time in which a debtor
    clearing organization must notify the

    [[Page 36065]]

    Commission of a bankruptcy filing. In particular: (1) In the event of a
    voluntary bankruptcy filing, the debtor would be required to notify the
    Commission at or before the time of filing, and (2) in the event of an
    involuntary bankruptcy filing, the debtor must notify the Commission as
    soon as possible, but in any event no later than three hours after the
    receipt of the notice of such filing. These revisions would codify
    expectations that (1) in a voluntary bankruptcy proceeding, the debtor
    clearing organization will provide advance notice to the Commission
    ahead of the filing to the extent practicable, and (2) in an
    involuntary bankruptcy proceeding, the debtor clearing organization
    will notify the Commission immediately upon the filing, or within at
    the most three hours thereafter. With respect to a voluntary bankruptcy
    filing, the Commission expects that the DCO would have made it aware of
    its financial distress in the lead-up to a bankruptcy filing in
    accordance with the mandatory reporting requirements in part 39; the
    revision in proposed Sec.  190.12(a) merely would codify the
    expectation that the clearing organization would notify the Commission
    of an intent to file for bankruptcy protection as soon as practicable
    before, and in no event later than, the time of the filing. In
    addition, proposed Sec.  190.12(a) also would allow a debtor clearing
    organization to provide the relevant docket number of the bankruptcy
    proceeding to the Commission “as soon as available,” while not
    waiting on notifying the Commission of the filing itself, to account
    for the potential time lag between the filing of a proceeding and the
    assignment by the relevant court of a docket number. These revisions
    would enhance the ability of the Commission to perform its
    responsibilities to support the interests of clearing members,
    customers of clearing members, markets, and the broader financial
    system, by providing the Commission with prompt notice of any DCO
    bankruptcy proceeding.
        Proposed Sec.  190.12(b) and(c) would involve the provision of
    certain reports and records to the trustee and/or the Commission by the
    debtor clearing organization. In particular: Proposed Sec.  190.12(b)
    would set forth the reports and records that the clearing organization
    would be required to provide to the Commission and to the trustee
    within three hours following the later of the commencement of the
    proceeding or the appointment of the trustee, and proposed Sec. 
    190.12(c) would set forth the records to be provided to the Commission
    and to the trustee no later than the next business day following
    commencement of a bankruptcy proceeding. These provisions would impose
    administrative costs on the debtor clearing organization and/or the
    trustee, which would be obligated to spend time and resources
    transmitting copies of the required reports and records to the trustee
    and/or Commission. However, these provisions would both benefit the
    estate, and enhance the Commission’s ability to fulfil its
    responsibilities, by providing them with the most current information
    about the clearing organization, and by allowing the trustee to begin
    to understand the business of the clearing organization as soon as
    possible following a bankruptcy filing, which is critically necessary
    to the administration of the debtor clearing organization’s estate.
    This would in turn promote confidence in the clearing system in
    particular, and financial markets more broadly.
    b. Request for Comment
        The Commission requests comment on all aspects of its cost and
    benefit considerations with respect to proposed Sec.  190.12. Are there
    additional costs or benefits that the Commission should consider? Are
    there any alternatives that could provide preferable costs or benefits
    than the costs and benefits related to the proposed amendments
    discussed above? Commenters are encouraged to include both qualitative
    and quantitative assessments of any costs and benefits.
    3. Regulation Sec.  190.13: Prohibitions on Avoidance of Transfers
    a. Consideration of Costs and Benefits
        Proposed Sec.  190.13 would implement section 764(b) of the
    Bankruptcy Code with respect to DCOs, and prohibits the avoidance of
    certain transfers made either before or after entry of the order for
    relief. This provision is derived from current Sec.  190.06(g), with
    certain changes. While the prohibition of avoidance of pre- and post-
    relief transfers in current Sec.  190.06(g) would apply so long as the
    transfer is not disapproved by Commission, the same prohibition on
    avoidance of pre- and post-relief transfers in proposed Sec.  190.13(a)
    and (b) would require the affirmative approval of the Commission
    (though such approval can be given either before or after the transfer
    is made). This change would impose administrative costs on the clearing
    organization or the trustee, who would have to expend time and
    resources to seek affirmative approval from the Commission for such a
    transfer in the context of administering a DCO, respectively, either
    before or after bankruptcy. As noted above,237 a clearing
    organization must maintain a “balanced book,” and thus must transfer
    all of its customer positions (or at least all positions in a given
    product set). Any such transfer would have significant effects on the
    markets cleared, and possibly on the broader financial system. There
    thus would seem to be important benefits from requiring the
    Commission’s approval of such a significant transaction, and thus
    permitting the exercise of discretion by the administrative agency
    responsible for oversight of the derivatives markets.
    —————————————————————————

        237 See section II.C.3 above.
    —————————————————————————

    b. Request for Comment
        The Commission requests comment on all aspects of its cost and
    benefit considerations with respect to proposed Sec.  190.13. Are there
    additional costs or benefits that the Commission should consider? Are
    there any alternatives that could provide preferable costs or benefits
    than the costs and benefits related to the proposed amendments
    discussed above? Commenters are encouraged to include both qualitative
    and quantitative assessments of any costs and benefits.
    4. Regulation Sec.  190.14: Operation of the Estate of the Debtor
    Subsequent to the Filing Date
    a. Consideration of Costs and Benefits
        Proposed Sec.  190.14(a) would provide that the trustee may, in
    their discretion based upon the facts and circumstances of the case,
    instruct each customer to file a proof of claim containing such
    information as is deemed appropriate by the trustee. Allowing the
    bankruptcy trustee to use their discretion in tailoring the proof of
    claim form to the specific facts and circumstances of the case would
    benefit both the trustee and customers by limiting the information
    requested to only that which is necessary for purposes of administering
    the debtor’s estate and thereby increasing cost effectiveness,
    particularly given the bespoke nature of a clearing organization
    bankruptcy. Thus, the Commission has not proposed a prescribed proof of
    claim form. There could, however, be corresponding administrative costs
    to both the estate and the customers if the set of information
    requested by the trustee in the exercise of their discretion turns out
    in retrospect to be overly narrow or broad.
        Proposed Sec.  190.14(b) would provide that a debtor clearing
    organization will

    [[Page 36066]]

    cease making calls for variation or initial margin, except in the
    limited case where the debtor clearing organization continues operation
    for a limited time. Specifically, under proposed Sec.  190.14(b)(2),
    the trustee could request permission of the Commission to continue to
    operate the clearing organization for up to six calendar days after the
    order for the relief if the trustee believes that continued operation
    would (1) facilitate either prompt transfer of the clearing operations
    of the clearing organization to another DCO or resolution of the DCO
    under Title II of Dodd-Frank, and (2) be practicable, in the sense that
    the rules of the DCO do not compel termination of all outstanding
    contracts under the circumstances then prevailing and all or
    substantially all of the DCO’s members would be able to, and would,
    make variation margin payments as owed during the period of continued
    operations. Under current regulations, it would not be possible to
    continue the operations of a debtor clearing organization for any
    amount of time after entry of the order for relief, as there is no
    clear and coherent mechanism to do so. Providing such a mechanism to
    enable the trustee to continue the operations of the debtor clearing
    organization for a set amount of time could, in certain circumstances,
    benefit clearing members and their customers as well as markets and the
    broader financial system by allowing time to accomplish an impending
    transfer of the debtor’s clearing operations to another clearing
    organization, or to allow for the possibility of resolving the debtor
    clearing organization under Title II. Continuing operations of the
    debtor clearing organization could, however, impose administrative
    costs, as the trustee would have to essentially operate the clearing
    organization according to its rules and procedures, using the estate’s
    already limited resources. Moreover, the attempt to continue operations
    could fail, despite the predictions of the trustee and of the
    Commission, and such failure could damage the interests of clearing
    members and their customers as well as markets and the broader
    financial system.
        The Commission notes that it considered alternatives to proposed
    Sec.  190.14(b)(2). Specifically, the Commission could have left out
    the possibility of the debtor clearing organization continuing
    operations for any period of time after entry of the order for relief.
    As another alternative, the Commission could have allowed for continued
    operations with fewer requirements than those in proposed Sec. 
    190.14(b)(2). The Commission decided that the framework set out in
    proposed Sec.  190.14(b) for continuing operations of a debtor clearing
    organization would strike the proper balance between allowing for
    continuing operations where it is appropriate to do so while only
    allowing for continuing operations where such continued operations
    would be expected to be both useful and practical.
        Proposed Sec.  190.14(c)(1) would provide that the trustee shall
    liquidate all open commodity contracts that have not been terminated,
    liquidated or transferred no later than seven calendar days after the
    entry of the order for relief, unless the Commission determines that
    liquidation would be inconsistent with the avoidance of systemic risk
    or would not be in the best interests of the debtor’s estate. This
    provision would impose administrative costs in that the trustee would
    have a hard deadline for terminating, liquidating or transferring any
    open commodity contracts within a certain timeframe, whereas under
    current part 190 there was no specified timeframe for such termination,
    liquidation or transfer. It could, however, benefit clearing members
    and customers, who would have certainty that their open commodity
    contracts would be liquidated within a particular timeframe rather than
    being held open for an undetermined amount of time. A deadline for
    liquidation or transfer of open contracts could benefit the broader
    financial markets by mitigating uncertainty.
        Proposed Sec.  190.14(c)(2), which is derived from current Sec. 
    190.08(d)(3), would provide that the trustee may, at their discretion,
    make distributions in the form of securities that are equivalent to the
    securities originally delivered to the debtor by a clearing member or
    such clearing member’s customer, rather than liquidating the securities
    and making distributions in cash. Unlike current Sec.  190.08(d)(3),
    proposed Sec.  190.14(c)(2) would not allow the customer to request
    that the trustee purchase like-kind securities and distribute those
    instead of cash, instead would leave it up to the discretion of the
    trustee whether to do so. This change could impose costs on customers
    who would prefer to have a distribution of equivalent securities rather
    than cash since it would take away their right to request such a
    distribution. However, it could benefit the estate by allowing the
    trustee to use their discretion as to whether to purchase and
    distribute equivalent securities, rather than being obligated to do so
    at the request of a customer.
        Proposed Sec.  190.14(d) would require the trustee to use
    reasonable efforts to compute the funded balance of each customer
    account immediately prior to the distribution of any property in the
    account, “which shall be as accurate as reasonably practicable under
    the circumstances, including the reliability and availability of
    information.” Setting forth an explicit requirement on the bankruptcy
    trustee to calculate the funded balance of customer accounts in certain
    circumstances would impose administrative costs due to the time and
    effort involved in making such calculations. However, this calculation
    would be necessary to achieve the goal of making distributions that
    would be consistent with each customer’s proportionate share.
    b. Request for Comment
        The Commission requests comment on all aspects of its cost and
    benefit considerations with respect to proposed Sec.  190.14. Are there
    additional costs or benefits that the Commission should consider? Is it
    plausible that there would be circumstances under which allowing the
    trustee to continue DCO operations for a limited period of time would
    be the best approach to resolving the DCO? Are there any alternatives
    that could provide preferable costs or benefits than the costs and
    benefits related to the proposed amendments discussed above? Commenters
    are encouraged to include both qualitative and quantitative assessments
    of any costs and benefits.
    5. Regulation Sec.  190.15: Recovery and Wind-down Plans; Default Rules
    and Procedures
    a. Consideration of Costs and Benefits
        Proposed Sec.  190.15, which is not derived from any provision in
    current part 190, would provide that (1) the trustee shall not avoid or
    prohibit any action taken by a debtor that was within the scope of and
    was provided for in the debtor’s recovery and wind-down plans; (2) in
    administering a DCO bankruptcy, the trustee shall, subject to the
    reasonable discretion of the trustee and to the extent practicable,
    implement the default rules and procedures maintained by the debtor;
    and (3) in administering a DCO bankruptcy, the trustee shall, to the
    extent reasonable and practicable, take actions in accordance with the
    debtor’s recovery and wind-down plans.
        The Commission considered two alternatives to directing the trustee
    to implement the debtor’s own default rules and procedures and recovery
    and wind-down plans: First, continuing to allow a bankruptcy trustee to
    develop,

    [[Page 36067]]

    in the moment, a plan for liquidating the debtor clearing organization,
    and second, prescribing an across-the-board method for liquidating a
    debtor clearing organization. With respect to the first alternative,
    the Commission is of the view that, given the complexity of the
    operations of a DCO, and the need for extremely prompt action, having
    the trustee develop an entire plan in the moment would be likely to
    turn out to be impracticable. This would be in contrast to the
    trustee’s power under the proposed rule to act differently to a limited
    extent, in cases where aspects of the plan would be impracticable. As
    for the second alternative, given the differences between DCOs, a one-
    size-fits-all approach likely would be less effective.
        The Commission is accordingly of the view that, relative to these
    alternatives, directing a trustee to implement the DCO’s own default
    rules and procedures, and recovery and wind-down plans, would benefit
    the estate by providing the trustee with purpose-built rules,
    procedures and plans to liquidate a DCO, which rules, procedures and
    plans the DCO has developed subject to the requirements of the
    Commission’s regulations and supervision of the Commission. However,
    adding concepts of reasonability and practicability would give the
    trustee the discretion to modify those rules, procedures, and plans
    where and to the extent necessary. Hence, the Commission believes that
    an approach whereby the trustee would follow the DCO’s own purpose-
    built default rules and procedures and recovery and wind-down plans
    would be the most cost effective.
    b. Request for Comment
        The Commission requests comment on all aspects of its cost and
    benefit considerations with respect to proposed Sec.  190.15. Are there
    additional costs or benefits that the Commission should consider? Are
    there any other alternatives that could provide preferable costs or
    benefits to the costs and benefits related to the proposed amendments
    discussed above? Commenters are encouraged to include both qualitative
    and quantitative assessments of any costs and benefits.
    6. Regulation Sec.  190.16: Delivery
    a. Consideration of Costs and Benefits
        Proposed Sec.  190.16 would address delivery in the context of a
    clearing organization bankruptcy. Current part 190 does not contain any
    regulations specific to delivery in the context of a clearing
    organization bankruptcy.
        Proposed Sec.  190.16(a) would provide that a bankruptcy trustee is
    be required to use “reasonable efforts” to facilitate and cooperate
    with the completion of the delivery on behalf of the clearing
    organization’s clearing member or the clearing member’s customer. This
    would have the benefits of mitigating disruption to the cash market for
    the commodity and mitigating adverse consequences to parties that could
    be relying on delivery taking place in connection with their business
    operations. While the exertion of such reasonable efforts would
    necessarily involve administrative costs (predominantly, time of the
    trustee or their agents), the Commission is of the view that this
    approach would have important benefits relative to the two
    alternatives. Given the importance of reliable delivery to physical
    markets, it would be inappropriate to relieve the trustee of the
    obligation to endeavor to facilitate and cooperate with the members’ or
    members’ customers’ efforts to accomplish delivery. On the other hand,
    mandating that the trustee go beyond reasonable efforts would risk
    compelling the trustee to expend unwarranted amounts of resources in
    this endeavor.
        Proposed Sec.  190.16(b) would clarify which property would be part
    of the physical delivery account class and which would be part of the
    cash delivery account class. It is analogous to proposed Sec. 
    190.06(b) in the FCM context, and would carry forward the concepts in
    that section but would be modified for the context of a DCO bankruptcy.
    Clearly delineating between the physical delivery account class and the
    cash delivery account class would benefit customers because it would
    increase transparency in terms of which account class their property
    belongs in. Proposed Sec.  190.16(b) could, however, impose
    administrative costs, since accounting separately for physical delivery
    property and cash delivery property would take the trustee’s time and
    resources. As noted above,238 the sub-division of the delivery
    account class into the physical and cash delivery account classes would
    recognize that cash is more vulnerable to loss, and more difficult to
    trace, as compared to physical delivery property. Therefore, such sub-
    division would be likely to benefit those with physical delivery
    claims. Since cash is more vulnerable to loss and more difficult to
    trace, then under the proposal, clearing members and customers in the
    cash delivery sub-class would be more likely to get a pro rata
    distribution that would be less than that in the physical delivery
    property sub-class.239
    —————————————————————————

        238 See discussion of Sec.  190.06(b) in section II.B.4 above.
        239 Costs and benefits of the separation of the delivery
    account class into physical delivery and cash delivery subclasses
    were also addressed in respect to the costs and benefits section
    addressing the definition of “account class” in proposed Sec. 
    190.01, section II.A.2 above.
    —————————————————————————

    b. Request for Comment
        The Commission requests comment on all aspects of its cost and
    benefit considerations with respect to proposed Sec.  190.16. Are there
    additional costs or benefits that the Commission should consider? Are
    there any alternatives that could provide preferable costs or benefits
    than the costs and benefits related to the proposed amendments
    discussed above? Commenters are encouraged to include both qualitative
    and quantitative assessments of any costs and benefits.
    7. Regulation Sec.  190.17: Calculation of Net Equity
    a. Consideration of Costs and Benefits
        Proposed Sec.  190.17(a) would clarify that a member of a debtor
    clearing organization may have claims against the clearing organization
    in separate capacities: On behalf of its public customers (customer
    accounts) and on behalf of its non-public customers (house accounts).
    It further would state that net equity shall be calculated separately
    for each customer capacity in which the clearing member has a claim
    against the debtor. In the Commission’s view, the provisions in
    proposed Sec.  190.17(a) would be mere clarifications and would not
    impose any costs or benefits on any parties.
        Proposed Sec.  190.17(b) would provide that the calculation of a
    clearing member’s net equity claim in the bankruptcy of a clearing
    organization shall include the full application of the debtor’s loss
    allocation rules and procedures, as well as full application of any
    recoveries made by the estate of the debtor in accordance with the
    debtor’s rules and procedures. These provisions would benefit the
    estate, as the trustee would (a) have a clear roadmap in calculating
    net equity in the bankruptcy of a clearing organization and would not
    be obligated to come up with an ad hoc methodology of doing so, and (b)
    face reduced likelihood and expected amount of litigation costs arising
    from challenges to the trustee’s choice of methodology. They would also
    benefit clearing members (and, therefore, their customers) by providing
    transparency as to how their net equity will be calculated. And in
    certain cases, where the debtor recovers any funds,

    [[Page 36068]]

    application of the debtor’s “reverse waterfall” rules would benefit
    clearing members (and, in certain cases, their customers) by increasing
    the net equity claims of the entitled clearing members. These
    provisions could, however, impose costs on clearing members whose net
    equity claims may have been greater absent the application of the
    clearing organization’s loss allocation rules and procedures.
        Proposed Sec.  190.17(c) would adopt by reference the net equity
    calculations set forth in proposed Sec.  190.08, to the extent
    applicable.240
    —————————————————————————

        240 For a discussion of the cost and benefit considerations
    for proposed Sec.  190.08, please see section IV.E.6 above.
    —————————————————————————

        Proposed Sec.  190.17(d) would set forth a definition of the term
    “funded balance,” which is taken directly from Bankruptcy Code
    provisions. Clarifying the meaning of the term “funded balance” in
    the context of a clearing organization bankruptcy would benefit
    clearing members, in that they would know ex ante what is and is not
    included in their funded balance and how such amount is calculated. In
    addition, proposed Sec.  190.17(d) would adopt by reference the
    methodology for calculating funded balance that would be set forth in
    proposed Sec.  190.08(c).241
    —————————————————————————

        241 For a discussion of the cost and benefit considerations
    for proposed Sec.  190.08(c), please see section IV.E.6 above.
    —————————————————————————

    b. Request for Comment
        The Commission requests comment on all aspects of its cost and
    benefit considerations with respect to proposed Sec.  190.17. Are there
    additional costs or benefits that the Commission should consider? Are
    there any alternatives that could provide preferable costs or benefits
    than the costs and benefits related to the proposed amendments
    discussed above? Commenters are encouraged to include both qualitative
    and quantitative assessments of any costs and benefits.
    8. Regulation Sec.  190.18: Treatment of Property
    a. Consideration of Costs and Benefits
        Proposed Sec.  190.18(a) is analogous to proposed Sec.  190.17(a),
    in that it would provide that property of the debtor clearing
    organization’s estate would be allocated between member property and
    customer property other than member property in order to satisfy the
    proprietary and customer claims of clearing members. In the
    Commission’s view, the provisions in proposed Sec.  190.18(a) would be
    mere clarifications and do not impose any costs or benefits on any
    parties.
        Proposed Sec.  190.18(b)(1)(i) and (ii) would set out the scope of
    customer property for a clearing organization, and would be largely
    based on proposed Sec.  190.09(a).242
    —————————————————————————

        242 For a discussion of the cost and benefit considerations
    for proposed Sec.  190.09(a), please see section IV.E.7 above.
    —————————————————————————

        Proposed Sec.  190.18(b)(1)(iii) would provide that customer
    property would include any guaranty fund deposit, assessment or similar
    payment or deposit made by a clearing member or recovered by a trustee,
    to the extent any remains following administration of the debtor’s
    default rules and procedures, and any other property of a member
    available under the debtor’s rules and procedures to satisfy claims
    made by or on behalf of public customers of a member. This provision
    would support the goal of making customers whole. Specifically, it
    would benefit clearing members of the debtor, since it clarifies that
    any property described in this paragraph will be included in the scope
    of customer property, rather than ultimately going to some other
    creditor of the debtor. It would result in corresponding costs to non-
    customer creditors, and could result in administrative costs, however,
    since the trustee could need to spend time and resources in order to
    determine whether any such property exists in order to properly
    allocate such property to customers.
        Proposed Sec.  190.18(b)(2) would adopt by reference proposed Sec. 
    190.09(a)(2), as if the term debtor used therein would refer to a
    clearing organization as debtor and to the extent relevant to a
    clearing organization.243
    —————————————————————————

        243 For a discussion of the cost and benefit considerations
    for proposed Sec.  190.09(a)(2), please see section IV.E.7 above.
    —————————————————————————

        Proposed Sec.  190.18(c) would set forth the allocation of customer
    property among customer classes (i.e., allocation between (1) customer
    property other than member property, and (2) member property). This
    provision, in general, would set forth the principle, consistent with
    the statutory preference for public customers over non-public customers
    embodied in Bankruptcy Code section 766(h), that allocation to customer
    property other than member property is favored over allocation to
    member property, so long as the funded balance in any account class for
    members’ public customers is less than one hundred percent of net
    equity claims. This provision would benefit the public customers of the
    debtor’s clearing members, since it would make clear that allocation to
    such customers would be preferred over allocation to the clearing
    members’ house accounts. It could impose corresponding costs on the
    debtor’s clearing members and affiliates to the extent that, under the
    current regime, there would be a possibility that more customer
    property would be allocated to their house accounts. Overall, this
    provision would provide the benefit of ex ante transparency to the
    estate, the debtor’s clearing members, and their customers, who would
    know during business as usual how customer property would be allocated
    in the event of a bankruptcy.
        Proposed Sec.  190.18(d) would set forth the allocation of customer
    property among account classes. This provision would be similar in
    concept to proposed Sec.  190.09(c) (and current Sec.  190.08(c)). The
    Commission is proposing to take an additional step that applies
    specifically in the context of a clearing organization bankruptcy.
    Specifically, the Commission is proposing to include a provision that
    would set forth the allocation of customer property among account
    classes. This provision would benefit clearing members and their
    customers, who would have increased transparency, ex ante, into how
    customer property would be allocated. Prescribing such allocation
    would, however, impose administrative costs, because the trustee would
    lose some amount of flexibility in terms of how to allocate customer
    property between account classes.
        Proposed Sec.  190.18(e) would provide that, where the debtor has,
    prior to the order for relief, kept initial margin for house accounts
    in accounts without separation by account class, then member property
    would be considered to be in a single account class. This provision
    would benefit the estate, because the trustee would not be put to the
    considerable task of separating in bankruptcy that which was treated as
    a single account during business-as-usual. The proposed section would
    also benefit debtor’s clearing members, who would have increased
    transparency as to how their member property would be treated.
        Proposed Sec.  190.18(f), which would be the analog to proposed
    Sec.  190.03(a)(3), would give the trustee the authority to assert
    claims against any person to recover the shortfall of customer property
    enumerated in certain paragraphs elsewhere in proposed Sec.  190.18.
    This provision could impose administrative costs, since the trustee
    could expend time and resources to assert claims to make up for any
    shortfall in customer property. The provision would, however, benefit
    customers, since it would support the trustee’s efforts to recover any
    such shortfalls and by giving the trustee authority to take action to
    do so.

    [[Page 36069]]

    Moreover, since this provision would make explicit what is implicit in
    current part 190, an additional benefit of this provision would be
    reduced litigation costs over a trustee’s attempts to recover
    shortfalls in customer property.244
    —————————————————————————

        244 As discussed above in section IV.E.7, while the persons
    against whom claims are successfully asserted may perceive a
    subjective cost, the Commission does not find these costs relevant
    to the analysis.
    —————————————————————————

    b. Request for Comment
        The Commission requests comment on all aspects of its cost and
    benefit considerations with respect to proposed Sec.  190.18. Are there
    additional costs or benefits that the Commission should consider? Are
    there any alternatives that could provide preferable costs or benefits
    than the costs and benefits related to the proposed amendments
    discussed above? Commenters are encouraged to include both qualitative
    and quantitative assessments of any costs and benefits.
    9. Regulation Sec.  190.19: Support of Daily Settlement
    a. Consideration of Costs and Benefits
        Proposed Sec.  190.19, which is new, would deal with the treatment
    of variation settlement in a clearing organization bankruptcy, and
    would set forth what to do when there is a shortfall in variation
    settlement owed to a debtor clearing organization’s clearing members
    and customers. Specifically, proposed Sec.  190.19(a) would provide
    that any variation settlement payments received by the clearing
    organization after entry of an order for relief shall be included in
    customer property, and shall promptly be distributed to the member and
    customer accounts entitled to such payments. Proposed Sec.  190.19(b)
    would deal with a situation where there is a shortfall in variation
    settlement received by the clearing organization, and provides that
    such funds shall be supplemented in accordance with the clearing
    organization’s default rules and procedures and any recovery and wind-
    down plans maintained by the clearing organization.
        Proposed Sec.  190.19 would benefit clearing members and their
    customers because it would ensure that any variation settlement
    received by the clearing organization would be sent to those member and
    customer accounts that would be entitled to payment of variation
    settlement, and that the trustee would be able to supplement any
    shortfall in variation settlement amounts with the property listed in
    proposed Sec.  190.19(b). There could be corresponding costs to general
    creditors of the clearing organization since, under current part 190,
    it would be conceivable that variation settlement received by the
    clearing organization could be diverted to the pool of general
    creditors rather than becoming customer property (even though such
    diversion would be contrary to the expectations of both the Commission
    and the industry). In clarifying how variation settlement received by
    the clearing organization is to be treated by the bankruptcy trustee,
    proposed Sec.  190.19 would also benefit clearing members and their
    customers by providing enhanced transparency. There could be
    administrative costs, however, to the extent the trustee would lose
    some amount of flexibility in terms of how to treat variation
    settlement received by the clearing organization, and in terms of the
    time and resources they could need to spend to determine how to make up
    a shortfall in such settlement funds.
    b. Request for Comment
        The Commission requests comment on all aspects of its cost and
    benefit considerations with respect to proposed Sec.  190.19. Are there
    additional costs or benefits that the Commission should consider? Are
    there any alternatives that could provide preferable costs or benefits
    than the costs and benefits related to the proposed amendments
    discussed above? Commenters are encouraged to include both qualitative
    and quantitative assessments of any costs and benefits.
    10. Section 15(a) Factors–Subpart C
    a. Protection of Market Participants and the Public
        Subpart C of the proposed rules would increase the protection of
    market participants and the public by clearly setting forth how the
    bankruptcy trustee is expected to treat the property of DCO clearing
    members and their customers in the event of a DCO insolvency, thereby
    promoting ex ante transparency for such clearing members and customers.
    Moreover, the addition in part 190 of bespoke bankruptcy rules for a
    DCO bankruptcy would provide better protections to market participants
    by accounting for the unique position of clearing members (and the
    customers of such clearing member) of a DCO that is going through an
    insolvency proceeding.
    b. Efficiency, Competitiveness, and Financial Integrity
        Subpart C of the proposed rules would promote efficiency (in the
    sense of both cost effectiveness and timeliness) in the administration
    of insolvency proceedings of DCOs, and the financial integrity of
    transactions cleared by DCOs by setting forth clear instructions for a
    bankruptcy trustee to follow in the event of a DCO insolvency.
    Moreover, subpart C would provide the bankruptcy trustee with
    discretion, in certain circumstances, to react flexibly to the
    particulars of the insolvency proceeding, thereby promoting efficiency
    of the administration of the proceeding. These effects would, in turn,
    enhance the competitiveness of U.S. DCOs and their FCM clearing
    members, by enhancing market confidence in the protection of customer
    funds and positions entrusted to U.S. DCOs through their clearing
    members, even in the case of insolvency.
    c. Price Discovery
        Price discovery is the process of determining the price level for
    an asset through the interaction of buyers and sellers and based on
    supply and demand conditions. To the extent that the proposed
    regulations would mitigate the need for liquidations in conditions of
    distress, they would avoid the resultant negative impacts on price
    discovery.
    d. Sound Risk Management Practices
        Subpart C of the proposed rules would promote sound risk management
    practices by encouraging the bankruptcy trustee to effectively manage
    the risk of the debtor DCO. Subpart C would accomplish this by adding
    bankruptcy rules to part 190 for a DCO insolvency that reflect current
    market practices and effectively would protect customer property in the
    event of such an insolvency. Moreover, subpart C would promote sound
    risk management practices by instructing a bankruptcy trustee to
    implement the debtor DCO’s default rules and procedures and to take
    actions in accordance with the debtor DCO’s recovery and wind-down
    plans, which rules, procedures and plans are developed and overseen by
    the Commission.
    e. Other Public Interest Considerations
        By favoring the implementation of the clearing organization’s
    default rules, recovery plans, and procedures established ex ante under
    the supervision of the Commission, and by supporting daily settlement,
    the proposed rules would support financial stability. Moreover, some of
    the DCOs that might enter bankruptcy are very large financial
    institutions, and some are considered to be systematically important.
    An effective bankruptcy process that efficiently facilitates the
    proceedings is likely to benefit the financial system (and thus the
    public

    [[Page 36070]]

    interest), as that process would help to attenuate the detrimental
    effects of the bankruptcy on the financial network.

    G. Technical Corrections to Parts 1, 4, and 41

        The Commission is proposing technical corrections to parts 1, 4,
    and 41 to update cross-references. These corrections and clarifying and
    do not have any impact on the substantive obligations related to these
    sections. Thus, there are no costs associated with these minor
    technical updates.

    H. Antitrust Considerations

        Section 15(b) of the CEA 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 CEA in issuing any order or adopting any Commission
    rule or regulation.245
    —————————————————————————

        245 Section 15(b) of the CEA, 7 U.S.C. 19(b).
    —————————————————————————

        The Commission believes that the public interest to be protected by
    the antitrust laws is the promotion of competition. The Commission
    requests comment on whether the proposed rulemaking implicates any
    other specific public interest to be protected by the antitrust laws.
    The Commission has considered the proposed rulemaking to determine
    whether it might have anticompetitive effects. The Commission has not
    identified any effect on competition of the proposed rulemaking, which
    would apply only in the rare instance of an FCM or DCO bankruptcy.
    Accordingly, the Commission has not identified any less anticompetitive
    means of achieving the purposes of the CEA. The Commission requests
    comment on whether there are less anticompetitive means of achieving
    the relevant purposes of the CEA that would otherwise be served by
    adopting the proposed rules.

    V. Related Matters

    A. Regulatory Flexibility Act

        The Regulatory Flexibility Act (“RFA”) requires that agencies
    consider whether the regulations they propose will have a significant
    economic impact on a substantial number of small entities and, if so,
    provide a regulatory flexibility analysis on the impact.246 The
    regulations proposed by the Commission would affect clearing
    organizations, FCMs, bankruptcy trustees, and customers. The Commission
    has previously established certain definitions of “small entities” to
    be used in evaluating the impact of its regulations in accordance with
    the RFA.247
    —————————————————————————

        246 5 U.S.C. 601 et seq.
        247 47 FR 18618 (Apr. 30, 1982).
    —————————————————————————

        The Commission has previously determined that clearing
    organizations and FCMs are not small entities for purposes of the
    RFA.248 In the event of a bankruptcy, a trustee is appointed as
    receiver to manage the estate of the insolvent FCM or clearing
    organization. Accordingly, since the trustee is representing the estate
    of either an FCM or clearing organization, the trustee is not a small
    entity for purposes of the RFA. The Commission recognizes that many
    customers of an FCM or DCO in bankruptcy could be considered to be
    small entities for purposes of the RFA. The Commission believes,
    however, that the amendments to part 190 are designed so that they can
    be implemented without imposing a significant economic burden on a
    substantial number of small entities. The proposed regulations take
    into account existing trading practices and the logistical
    considerations of implementing the regulations.
    —————————————————————————

        248 See 66 FR 45604, 45609 (Aug. 29, 2001); 67 FR 53146, 53171
    (Aug. 14, 2002).
    —————————————————————————

        Accordingly, the Commission Chairman, on behalf of the Commission,
    hereby certifies pursuant to 5 U.S.C. 605(b), that the proposed
    amendments would not have a significant economic impact on a
    substantial number of small entities. The Commission invites public
    comments on this determination.

    B. Paperwork Reduction Act

        The Paperwork Reduction Act (“PRA”) provides that Federal
    agencies, including the Commission, may not conduct or sponsor, and a
    person is not required to respond to, a collection of information
    unless it displays a valid control number from the Office of Management
    and Budget (“OMB”).249 This proposed rulemaking contains reporting
    requirements that are collections of information within the meaning of
    the PRA and for which the Commission has previously received a control
    number from OMB: OMB Control Number 3038-0021 (Regulations Governing
    Bankruptcies of Commodity Brokers).
    —————————————————————————

        249 44 U.S.C. 3501 et seq.
    —————————————————————————

        Information Collection 3038-0021 250 contains the reporting,
    recordkeeping and third-party disclosure requirements in the
    Commission’s bankruptcy regulations for commodity broker liquidations
    (17 CFR part 190). These regulations apply to liquidations under
    chapter 7, subchapter IV of the Bankruptcy Code.251 The Commission
    promulgated part 190 pursuant to the authority of 7 U.S.C. 24. The
    Commission is proposing to amend Information Collection 3038-0021 to
    (1) accommodate new information collection requirements for FCMs and
    DCOs as a result of this proposal, and (2) revise the existing
    information collection requirements for FCMs and DCOs as a result of
    this proposal.
    —————————————————————————

        250 There are two information collections associated with OMB
    Control No. 3038-0021. The first includes the reporting,
    recordkeeping, and third-party disclosure requirements applicable to
    a single respondent in a commodity broker liquidation (e.g., a
    single FCM, DCO, or trustee) within the relevant time period. This
    includes both (1) proposed requirements on a single FCM or a single
    trustee in an FCM bankruptcy which correspond to current
    requirements on a single FCM or a single trustee in an FCM
    bankruptcy, as provided for in proposed Sec. Sec.  190.03(b)(1) and
    (2) and (c)(1), (2), and (4), 190.05(b) and (d), and 190.07(b)(5);
    and (2) new requirements on a single DCO or a single trustee in a
    DCO bankruptcy as provided for in proposed Sec. Sec.  190.12(a)(2),
    (b)(1) and (2), and (c)(1) and (2) and 190.14(a) and (d). The second
    information collection includes the third-party disclosure
    requirements that are applicable during business as usual to
    multiple respondents (e.g., multiple FCMs), as provided for in
    proposed Sec. Sec.  190.10(b) and 190.10(e) (which are analogs to
    current Sec. Sec.  190.06(d) and 190.10(c)), as well as new a third-
    party disclosure requirement provided for in proposed Sec. 
    190.10(d) (regarding letters of credit).
        251 11 U.S.C. 761 et seq.
    —————————————————————————

        The Commission therefore is submitting this proposal to the OMB for
    its review in accordance with 44 U.S.C. 3507(d) and 5 CFR 1320.11.
    Responses to this collection of information would be mandatory. The
    Commission will protect proprietary information according to the FOIA
    and 17 CFR part 145, “Commission Records and Information.” In
    addition, section 8(a)(1) of the CEA strictly prohibits the Commission,
    unless specifically authorized by the CEA, from making public data and
    information that would separately disclose the business transactions or
    market positions of any person and trade secrets or names of
    customers.252 The Commission is also required to protect certain
    information contained in a government system of records according to
    the Privacy Act of 1974.253
    —————————————————————————

        252 7 U.S.C. 12(a)(1).
        253 5 U.S.C. 552a.
    —————————————————————————

        The information collection requirements of proposed part 190 are
    necessary and will be used to facilitate the effective, efficient and
    fair conduct of liquidation proceedings for FCMs and DCOs and to
    protect the interests of customers in these proceedings both directly
    and by facilitating the participation of the Commission in such
    proceedings. The estimates below reflect estimated burden hours per
    information collection requirement; the Commission has not identified
    any start-up, operational or maintenance costs

    [[Page 36071]]

    associated with the information collection requirements set forth
    below. The Commission requests comment on all aspects of its PRA
    analysis.
    1. Reporting Requirements in an FCM Bankruptcy
        Proposed Sec.  190.03(b)(1) would require FCMs that file a petition
    in bankruptcy to notify the Commission and the relevant DSRO, as soon
    as practicable before and in any event no later than the time of such
    filing, of the anticipated or actual filing date, the court in which
    the proceeding will be or has been filed and, as soon as known, the
    docket number assigned to that proceeding. It would further require an
    FCM against which an involuntary bankruptcy petition or application for
    a protective decree under SIPA is filed to notify the Commission and
    the relevant DSRO immediately upon the filing of such petition or
    application.
        Proposed Sec.  190.03(b)(2) would require the trustee, the relevant
    DSRO, or an applicable clearing organization to notify the Commission
    if such person intends to transfer or apply to transfer open commodity
    contracts or customer property on behalf of the public customers of the
    debtor.
        Based on its experience, the Commission anticipates that an FCM
    bankruptcy would occur once every three years.254 The Commission has
    estimated the burden hours for the reporting requirements in an FCM
    bankruptcy as follows:
    —————————————————————————

        254 These estimates express the burdens in terms of those that
    would be imposed on one respondent during the three-year period.
    —————————————————————————

        Estimated number of respondents: 1.
        Estimated annual number of responses per respondent: 1.255
    —————————————————————————

        255 The Commission estimates that (1) under proposed Sec. 
    190.03(b)(1), an FCM would make two notifications per bankruptcy
    (one to the Commission and one to its DSRO), and (2) under proposed
    Sec.  190.03(b)(2), an FCM would make one notification per
    bankruptcy. Dividing those numbers by three (since the Commission
    anticipates an FCM bankruptcy occurring once every three years)
    results in 0.67 notifications annually pursuant to proposed Sec. 
    190.03(b)(1), and 0.33 notifications annually pursuant to proposed
    Sec.  190.03(b)(2), for a total of one notification annually per
    respondent.
    —————————————————————————

        Estimated total annual number of responses for all respondents: 1.
        Estimated annual number of burden hours per respondent: 1.256
    —————————————————————————

        256 The Commission estimates that (1) the notifications
    required under proposed Sec.  190.03(b)(1) would take 0.5 hours to
    make, and (2) the notification required under proposed Sec. 
    190.03(b)(2) would take 2 hours to make. In terms of burden hours,
    this amounts to (0.5*0.67 under proposed Sec.  190.03(b)(1)) plus
    (2*0.33 under proposed Sec.  190.03(b)(2)), or a total of one burden
    hour annually per respondent.
    —————————————————————————

        Estimated total annual burden hours for all respondents: 1.
    2. Recordkeeping Requirements in an FCM Bankruptcy
        Proposed Sec.  190.05(b) would require the trustee to use
    reasonable efforts to compute a funded balance for each customer
    account that contains open commodity contracts or other property as of
    the close of business each business day subsequent to the order for
    relief until the date all open commodity contracts and other property
    in such account has been transferred or liquidated.
        Proposed Sec.  190.05(d) would require the trustee to use
    reasonable efforts to continue to issue account statements with respect
    to any customer for whose account open commodity contracts or other
    property is held that has not been liquidated or transferred.
        Based on its experience, the Commission anticipates that an FCM
    bankruptcy would occur once every three years.257 The Commission has
    estimated the burden hours for the recordkeeping requirements in an FCM
    bankruptcy as follows:
    —————————————————————————

        257 These estimates express the burdens in terms of those that
    would be imposed on one respondent during the three-year period.
    —————————————————————————

        Estimated number of respondents: 1.
        Estimated annual number of responses per respondent:
    26,666.67.258
    —————————————————————————

        258 The Commission estimates that (1) under proposed Sec. 
    190.05(b), a trustee would compute a funded balance for customer
    accounts 40,000 times; and (2) under proposed Sec.  190.05(d), a
    trustee would issue 40,000 account statements for customer accounts.
    Dividing those numbers by three (since the Commission anticipates an
    FCM bankruptcy occurring once every three years) results in
    13,333.33 records annually pursuant to proposed Sec.  190.05(b), and
    13,333.33 records annually pursuant to proposed Sec.  190.05(d), for
    a total of 26,666.67 records annually per respondent.
    —————————————————————————

        Estimated total annual number of responses for all respondents:
    26,666.67.
        Estimated annual number of burden hours per respondent:
    266.67.259
    —————————————————————————

        259 The Commission estimates that the each record required
    under proposed Sec.  190.05(b) and (d) would take 0.01 hours to
    prepare. In terms of burden hours, this amounts to (0.01*13,333.33
    under proposed Sec.  190.05(b)) plus (0.01*13,333.33 under proposed
    Sec.  190.05(d)), or a total of 266.67 burden hours annually per
    respondent.
    —————————————————————————

        Estimated total annual burden hours for all respondents: 266.67.
    3. Third-Party Disclosure Requirements Applicable to a Single
    Respondent in an FCM Bankruptcy
        Proposed Sec.  190.03(c)(1) would require the trustee to use all
    reasonable efforts to promptly notify any customer whose futures
    account, foreign futures account, or cleared swaps account includes
    specifically identifiable property, and that such specifically
    identifiable property may be liquidated on and after the seventh day
    after the order for relief if the customer has not instructed the
    trustee in writing before the deadline specified in the notice to
    return such property pursuant to the terms for distribution of customer
    property contained in proposed part 190.
        Proposed Sec.  190.03(c)(2) would allow the trustee to treat open
    commodity contracts of public customers identified on the books and
    records of the debtor has held in an account designated as a hedging
    account as specifically identifiable property of such customer.260
    —————————————————————————

        260 The Commission no longer assigns burden hours to the
    discretionary notice that a trustee may provide to customers in an
    involuntary FCM bankruptcy proceeding pursuant to proposed Sec. 
    190.03(c)(3). There have been no involuntary FCM liquidations and
    none are anticipated. Accordingly, continuing to assign burden hours
    to this voluntary requirement would inappropriately inflate the
    burden hours of this information collection.
    —————————————————————————

        Proposed Sec.  190.03(c)(4) would require the trustee to promptly
    notify each customer that an order for relief has been entered and
    instruct each customer to file a proof of customer claim containing the
    information specified in proposed Sec.  190.03(e).
        Proposed Sec.  190.07(b)(5) would, in the event that specifically
    identifiable property has been or will be transferred, require the
    trustee to transmit any customer instructions previously received by
    the trustee with respect to such specifically identifiable property to
    the transferee of such property.
        Based on its experience, the Commission anticipates that an FCM
    bankruptcy would occur once every three years.261 The Commission has
    estimated the burden hours for the third-party disclosure requirements
    applicable to a single respondent in an FCM bankruptcy as follows:
    —————————————————————————

        261 These estimates express the burdens in terms of those that
    would be imposed on one respondent during the three-year period.
    —————————————————————————

        Estimated number of respondents: 1.
        Estimated annual number of responses per respondent:
    10,003.32.262
    —————————————————————————

        262 The Commission estimates that a trustee would make the
    required disclosures under each of proposed Sec.  190.03(c)(1), (2)
    and (4) 10,000 times per bankruptcy. Dividing those numbers by three
    (since the Commission anticipates an FCM bankruptcy occurring once
    every three years) results in 3,333.33 disclosures annually pursuant
    to each of proposed Sec.  190.03(c)(1), (2), and (4). The Commission
    further estimates that a trustee would make the required disclosure
    under proposed Sec.  190.07(b)(5) 10 times per bankruptcy. Dividing
    this number by three results in 3.33 disclosures annually pursuant
    to proposed Sec.  190.07(b)(5). This amounts to a total of 10,003.32
    disclosures annually per respondent.
    —————————————————————————

        Estimated total annual number of responses for all respondents:
    10,003.32.
        Estimated annual number of burden hours per respondent:
    1,336.67.263
    —————————————————————————

        263 The Commission estimates that (1) each disclosure required
    under proposed Sec. Sec.  190.03(c)(1) and 190.03(c)(2) (b) would
    take 0.1 hours to prepare; (2) each disclosure required under
    proposed Sec.  190.03(c)(4) would take 0.2 hours to prepare; and (3)
    each disclosure required under proposed Sec.  190.07(b)(5) would
    take 1 hour to prepare. In terms of burden hours, this amounts to
    (0.1*3,333.33 under proposed Sec.  190.03(c)(1)) plus (0.1*3,333.33
    under proposed Sec.  190.03(c)(2)) plus (0.2*3,333.33 under proposed
    Sec.  190.03(c)(4)) plus (1*3.33 under proposed Sec.  190.07(b)(5)),
    or a total of 1336.67 burden hours annually per respondent.

    —————————————————————————

    [[Page 36072]]

        Estimated total annual burden hours for all respondents: 1,336.67.
    4. Reporting Requirements in a DCO Bankruptcy
        Proposed Sec.  190.12(a)(2) would require a clearing organization
    that files a petition in bankruptcy to notify the Commission, at or
    before the time of such filing, of the filing date, the court in which
    the proceeding will be or has been filed and, as soon as known, the
    docket number assigned to that proceeding. It further would require
    clearing organization against which an involuntary bankruptcy petition
    is filed to similarly notify the Commission within three hours after
    the receipt of notice of such filing.
        Proposed Sec.  190.12(b)(1) would require the debtor clearing
    organization to provide to the trustee, no later than three hours
    following the later of the commencement of a bankruptcy proceeding or
    the appointment of the trustee, copies of each of the most recent
    reports that the debtor was required to file with the Commission under
    Sec.  39.19(c).
        Proposed Sec.  190.12(b)(2) would require the debtor clearing
    organization to provide to the trustee and the Commission, no later
    than three hours following the commencement of a bankruptcy proceeding,
    copies of (1) the most recent recovery or wind-down plans of the debtor
    maintained pursuant to Sec.  39.39(b) and (2) the most recent version
    of the debtor’s default management plan and default rules and
    procedures maintained pursuant to Sec.  39.16 and, as applicable, Sec. 
    39.35.
        Proposed Sec.  190.12(c)(1) and (2) would require the debtor
    clearing organization to make available to the trustee and the
    Commission, no later than the next business day following commencement
    of a bankruptcy proceeding, copies of (1) all records maintained by the
    debtor pursuant to Sec.  39.20(a), and (2) any opinions of counsel or
    other legal memoranda provided to the debtor in the five years
    preceding the bankruptcy proceeding relating to the enforceability of
    the rules and procedures of the debtor in the event of an insolvency
    proceeding involving the debtor.
        Based on its experience, the Commission anticipates that a clearing
    organization bankruptcy would occur once every fifty years.264 The
    Commission has estimated the burden hours for the reporting
    requirements in a DCO bankruptcy as follows:
    —————————————————————————

        264 No U.S. clearing organization has ever been the subject of
    a bankruptcy proceeding, and none has come anywhere near insolvency.
    While there have been less than a handful of central counterparties
    worldwide that became functionally insolvent during the twentieth
    century, none of those were subject to modern resiliency
    requirements. Accordingly, the Commission believes that an estimate
    of one DCO bankruptcy every fifty years is an appropriate estimate.
    These burden estimates express the burdens in terms of those that
    would be imposed on one respondent during the fifty-year period.
    —————————————————————————

        Estimated number of respondents: 1.
        Estimated annual number of responses per respondent: 2.98.265
    —————————————————————————

        265 The Commission estimates that (1) under proposed Sec. 
    190.12(a)(2), a clearing organization would make two notifications
    per bankruptcy; (2) under proposed Sec.  190.12(b)(1), a clearing
    organization would provide 40 reports to the trustee; (3) under
    proposed Sec.  190.12(b)(2), a clearing organization would provide 5
    reports to the trustee and the Commission; (4) under proposed Sec. 
    190.12(c)(1), a clearing organization would provide 100 records to
    the trustee and the Commission; and (5) under proposed Sec. 
    190.12(c)(2), a clearing organization would provide 2 records to the
    trustee and the Commission. Dividing those numbers by 50 (since the
    Commission anticipates a clearing organization bankruptcy occurring
    once every 50 years) results in (1) 0.04 reports annually pursuant
    to proposed Sec.  190.12(a)(2); (2) 0.8 reports annually pursuant to
    proposed Sec.  190.12(b)(1); (3) 0.1 reports annually pursuant to
    proposed Sec.  190.12(b)(2); (4) 2 reports annually pursuant to
    proposed Sec.  190.12(c)(1); and (5) 0.04 reports annually pursuant
    to proposed Sec.  190.12(c)(2). This amounts to a total of 2.98
    reports annually per respondent.
    —————————————————————————

        Estimated total annual number of responses for all respondents:
    2.98.
        Estimated annual number of burden hours per respondent: 0.61.266
    —————————————————————————

        266 The Commission estimates that (1) each notification
    required under proposed Sec.  190.12(a)(2) would take 0.5 hours to
    make; (2) gathering the reports required under proposed Sec. 
    190.12(b)(1) would take 0.2 hours; (3) gathering the reports
    required under proposed Sec.  190.12(b)(2) would take 0.2 hours; (4)
    gathering the reports required under proposed Sec.  190.12(c)(1)
    would take 0.2 hours; and (5) gathering the reports required under
    proposed Sec.  190.12(c)(2) would take 0.2 hours. In terms of burden
    hours, this amounts to (0.5*0.04 under proposed Sec.  190.12(a)(2))
    plus (0.2*0.8 under proposed Sec.  190.12(b)(1)) plus (0.2*0.1 under
    proposed Sec.  190.12(b)(2)) plus (0.2*2 under proposed Sec. 
    190.12(c)(1)) plus (0.2*0.04 under proposed Sec.  190.12(c)(2)), or
    a total of 0.61 burden hours annually per respondent.
    —————————————————————————

        Estimated total annual burden hours for all respondents: 0.61.
    5. Recordkeeping Requirements in a DCO Bankruptcy
        Proposed Sec.  190.14(d) would require the trustee to use
    reasonable efforts to compute a funded balance for each customer
    account that contains open commodity contracts or other property as of
    the close of business each business day subsequent to the order for
    relief on which liquidation of property within the account has been
    completed or immediately prior to any distribution of property within
    the account.
        Based on its experience, the Commission anticipates that a clearing
    organization bankruptcy would occur once every fifty years.267 The
    Commission has estimated the burden hours for the recordkeeping
    requirements in a DCO bankruptcy as follows:
    —————————————————————————

        267 These estimates express the burdens in terms of those that
    would be imposed on one respondent during the fifty-year period.
    —————————————————————————

        Estimated number of respondents: 1.
        Estimated annual number of responses per respondent: 9.268
    —————————————————————————

        268 The Commission estimates that, under proposed Sec. 
    190.14(d), a clearing organization would compute a funded balance
    for customer accounts 450 times during a bankruptcy. This number is
    based on an average of 45 clearing members, each with two accounts
    (house and customer). Dividing that number by 50 (since the
    Commission anticipates a clearing organization bankruptcy occurring
    once every 50 years) results in 9 records annually per respondent.
    —————————————————————————

        Estimated total annual number of responses for all respondents: 9.
        Estimated annual number of burden hours per respondent: 0.9.269
    —————————————————————————

        269 The Commission estimates that computing the funded balance
    of customer accounts pursuant to proposed Sec.  190.14(d) would take
    0.1 hours per computation. In terms of burden hours, this amounts to
    (0.1*9), or 0.9 burden hours annually per respondent.
    —————————————————————————

        Estimated total annual burden hours for all respondents: 0.9.
    6. Third-Party Disclosure Requirements Applicable to a Single
    Respondent in a DCO Bankruptcy
        Proposed Sec.  190.14(a) would allow the trustee, in their
    discretion based upon the facts and circumstances of the case, to
    instruct each customer to file a proof of claim containing such
    information as is deemed appropriate by the trustee, and seek a court
    order establishing a bar date for the filing of such proofs of claim.
        Based on its experience, the Commission anticipates that a clearing
    organization bankruptcy would occur once every fifty years.270 The
    Commission has estimated the burden hours for the third-party
    disclosure requirements applicable to a single respondent in a DCO
    bankruptcy as follows:
    —————————————————————————

        270 These estimates express the burdens in terms of those that
    would be imposed on one respondent during the fifty-year period.
    —————————————————————————

        Estimated number of respondents: 1.
        Estimated annual number of responses per respondent: 0.9.271
    —————————————————————————

        271 The Commission estimates that, under proposed Sec. 
    190.14(a), a trustee would make the disclosure 45 times during a
    bankruptcy. This number is based on an average of 45 clearing
    members. Dividing that number by 50 (since the Commission
    anticipates a clearing organization bankruptcy occurring once every
    50 years) results in 0.9 records annually per respondent.

    —————————————————————————

    [[Page 36073]]

        Estimated total annual number of responses for all respondents:
    0.9.
        Estimated annual number of burden hours per respondent: 0.18.272
    —————————————————————————

        272 The Commission estimates that instructing customers to
    file a proof of claim pursuant to proposed Sec.  190.14(a) would
    take 0.2 hours. In terms of burden hours, this amounts to (0.2*0.9),
    or 0.18 burden hours annually per respondent.
    —————————————————————————

        Estimated total annual burden hours for all respondents: 0.18.
    7. Third-Party Disclosure Requirements Applicable to Multiple
    Respondents During Business as Usual
        Proposed Sec.  190.10(b) would require an FCM to provide an
    opportunity to each of its customers, upon first opening a futures
    account or cleared swaps account with such FCM, to designate such
    account as a hedging account.
        Proposed Sec.  190.10(d) would prohibit an FCM from accepting a
    letter of credit as collateral unless such letter of credit may be
    exercised under certain conditions specified in the proposed
    regulation.
        Proposed Sec.  190.10(e) would require an FCM to provide any
    customer with the disclosure statement set forth in proposed Sec. 
    190.10(e) prior to accepting property other than cash from or for the
    account of a customer to margin, guarantee, or secure a commodity
    contract.
        The requirements described above are applicable on a regular basis
    (i.e., during business as usual) to multiple respondents. The
    Commission has estimated the burden hours for the third-party
    disclosure requirements applicable to multiple respondents during
    business as usual as follows:
        Estimated number of respondents: 125.
        Estimated annual number of responses per respondent: 3,000.273
    —————————————————————————

        273 The Commission estimates that under proposed Sec. 
    190.10(b), (d), and (e), an FCM would make the required disclosures
    1,000 times per year. This amounts to a total of 3,000 responses
    annually per respondent.
    —————————————————————————

        Estimated total annual number of responses for all respondents:
    375,000.
        Estimated annual number of burden hours per respondent: 60.274
    —————————————————————————

        274 The Commission estimates that each disclosure required
    under Sec.  190.10(b), (d), and (e) would take 0.02 hours to make.
    In terms of burden hours, this amounts to (0.02*1,000 under proposed
    Sec.  190.10(b)) plus (0.02*1,000 under proposed Sec.  190.10(d))
    plus (0.02*1,000 under proposed Sec.  190.10(e)), or a60 burden
    hours annually per respondent.
    —————————————————————————

        Estimated total annual burden hours for all respondents: 7,500.
    8. Request for Comment
        The Commission invites the public and other Federal agencies to
    comment on any aspect of the proposed information collection
    requirements discussed above. The Commission will consider public
    comments on this proposed collection of information regarding:
         Evaluating whether the proposed collection of information
    is necessary for the proper performance of the functions of the
    Commission, including whether the information will have a practical
    use;
         evaluating the accuracy of the estimated burden of the
    proposed collection of information, including the degree to which the
    methodology and the assumptions that the Commission employed were
    valid;
         enhancing the quality, utility, and clarity of the
    information proposed to be collected; and
         reducing the burden of the proposed information collection
    requirements on registered entities, including through the use of
    appropriate automated, electronic, mechanical, or other technological
    information collection techniques, e.g., permitting electronic
    submission of responses.
        Copies of the submission from the Commission to OMB are available
    from the CFTC Clearance Officer, 1155 21st Street NW, Washington, DC
    20581, (202) 418-5160 or from http://RegInfo.gov. Organizations and
    individuals desiring to submit comments on the proposed information
    collection requirements should send those comments to:
         The Office of Information and Regulatory Affairs, Office
    of Management and Budget, Room 10235, New Executive Office Building,
    Washington, DC 20503, Attn: Desk Officer for the Commodity Futures
    Trading Commission;
         (202) 395-6566 (fax); or
         [email protected] (email).

    List of Subjects

    17 CFR Part 1

        Brokers, Commodity futures, Consumer protection, Reporting and
    recordkeeping requirements.

    17 CFR Part 4

        Brokers, Commodity futures, Consumer protection, Reporting and
    recordkeeping requirements.

    17 CFR Part 41

        Brokers, Reporting and recordkeeping requirements, Securities.

    17 CFR Part 190

        Bankruptcy, Brokers, Reporting and recordkeeping requirements.

        For the reasons stated in the preamble, the Commodity Futures
    Trading Commission proposes to amend 17 CFR chapter I as follows:

    PART 1–GENERAL REGULATIONS UNDER THE COMMODITY EXCHANGE ACT

    0
    1. The authority citation for part 1 continues to read as follows:

        Authority:  7 U.S.C. 1a, 2, 5, 6, 6a, 6b, 6c, 6d, 6e, 6f, 6g,
    6h, 6i, 6k, 6l, 6m, 6n, 6o, 6p, 6r, 6s, 7, 7a-1, 7a-2, 7b, 7b-3, 8,
    9, 10a, 12, 12a, 12c, 13a, 13a-1, 16, 16a, 19, 21, 23, and 24
    (2012).

    0
    2. In Sec.  1.25, revise paragraph (a)(2)(ii)(B) to read as follows:

    Sec.  1.25   Investment of customer funds.

        (a) * * *
        (2) * * *
        (ii) * * *
        (B) Securities subject to such repurchase agreements must not be
    “specifically identifiable property” as defined in Sec.  190.01 of
    this chapter.
    * * * * *
    0
    3. In Sec.  1.55, revise paragraphs (d) and (f) to read as follows:

    Sec.  1.55   Public disclosures by futures commission merchants.

    * * * * *
        (d) Any futures commission merchant, or (in the case of an
    introduced account) any introducing broker, may open a commodity
    futures account for a customer without obtaining the separate
    acknowledgments of disclosure and elections required by this section
    and by Sec.  1.33(g) and Sec.  33.7 of this chapter, provided that:
        (1) Prior to the opening of such account, the futures commission
    merchant or introducing broker obtains an acknowledgement from the
    customer, which may consist of a single signature at the end of the
    futures commission merchant’s or introducing broker’s customer account
    agreement, or on a separate page, of the disclosure statements,
    consents and elections specified in this section and Sec.  1.33(g), and
    in Sec. Sec.  33.7, 155.3(b)(2), and 155.4(b)(2) of this chapter, and
    which may include authorization for the transfer of funds from a
    segregated customer account to another account of such customer, as
    listed directly above the signature line, provided the customer has
    acknowledged by check or other indication next to a description of each
    specified disclosure statement, consent or election that the customer

    [[Page 36074]]

    has received and understood such disclosure statement or made such
    consent or election; and
        (2) The acknowledgment referred to in paragraph (d)(1) of this
    section is accompanied by and executed contemporaneously with delivery
    of the disclosures and elective provisions required by this section and
    Sec.  1.33(g), and by Sec.  33.7 of this chapter.
    * * * * *
        (f) A futures commission merchant or, in the case of an introduced
    account, an introducing broker, may open a commodity futures account
    for an “institutional customer” as defined in Sec.  1.3 without
    furnishing such institutional customer the disclosure statements or
    obtaining the acknowledgments required under paragraph (a) of this
    section, or Sec. Sec.  1.33(g) and 1.65(a)(3), and Sec. Sec.  30.6(a),
    33.7(a), 155.3(b)(2), 155.4(b)(2), and 190.10(e) of this chapter.
    * * * * *
    0
    4. In Sec.  1.65, revise paragraphs (a)(3) introductory text and
    (a)(3)(iii) to read as follows:

    Sec.  1.65   Notice of bulk transfers and disclosure obligations to
    customers.

        (a) * * *
        (3) Where customer accounts are transferred to a futures commission
    merchant or introducing broker, other than at the customer’s request,
    the transferee introducing broker or futures commission merchant must
    provide each customer whose account is transferred with the risk
    disclosure statements and acknowledgments required by Sec.  1.55
    (domestic futures and foreign futures and options trading) and
    Sec. Sec.  33.7 (domestic exchange-traded commodity options) and
    190.10(e) (non-cash margin–to be furnished by futures commission
    merchants only) of this chapter and receive the required
    acknowledgments within sixty days of the transfer of accounts. The
    requirement in this paragraph (a)(3) shall not apply:
    * * * * *
        (iii) If the transfer of accounts is made from one introducing
    broker to another introducing broker guaranteed by the same futures
    commission merchant pursuant to a guarantee agreement in accordance
    with the requirements of Sec.  1.10(j) and such futures commission
    merchant maintains the relevant acknowledgments required by Sec. 
    1.55(a)(1)(ii) and Sec.  33.7(a)(1)(ii) of this chapter and can
    establish compliance with Sec.  190.10(e) of this chapter.
    * * * * *

    PART 4–COMMODITY POOL OPERATORS AND COMMODITY TRADING ADVISORS

    0
    5. The authority citation for part 4 continues to read as follows:

        Authority:  7 U.S.C. 1a, 2, 6(c), 6b, 6c, 6l, 6m, 6n, 6o, 12a,
    and 23.

    0
    6. In Sec.  4.5, revise paragraph (c)(2)(iii)(A) to read as follows:

    Sec.  4.5   Exclusion for certain otherwise regulated persons from the
    definition of the term “commodity pool operator.”

    * * * * *
        (c) * * *
        (2) * * *
        (iii) * * *
        (A) Will use commodity futures or commodity options contracts, or
    swaps solely for bona fide hedging purposes within the meaning and
    intent of the definition of bona fide hedging transactions and
    positions for excluded commodities in Sec. Sec.  1.3 and 151.5 of this
    chapter; Provided however, That, in addition, with respect to positions
    in commodity futures or commodity options contracts, or swaps which do
    not come within the meaning and intent of the definition of bona fide
    hedging transactions and positions for excluded commodities in
    Sec. Sec.  1.3 and 151.5 of this chapter, a qualifying entity may
    represent that the aggregate initial margin and premiums required to
    establish such positions will not exceed five percent of the
    liquidation value of the qualifying entity’s portfolio, after taking
    into account unrealized profits and unrealized losses on any such
    contracts it has entered into; and, Provided further, That in the case
    of an option that is in-the-money at the time of the purchase, the in-
    the-money amount as defined in Sec.  190.01 of this chapter may be
    excluded in computing such five percent; or
    * * * * *
    0
    7. In Sec.  4.12, revise the section heading and paragraph (b)(1)(i)(C)
    to read as follows:

    Sec.  4.12   Exemption from provisions of this part.

    * * * * *
        (b) * * *
        (1) * * *
        (i) * * *
        (C) Will not enter into commodity interest transactions for which
    the aggregate initial margin and premiums, and required minimum
    security deposit for retail forex transactions (as defined in Sec. 
    5.1(m) of this chapter) exceed 10 percent of the fair market value of
    the pool’s assets, after taking into account unrealized profits and
    unrealized losses on any such contracts it has entered into; Provided,
    however, That in the case of an option that is in-the-money at the time
    of purchase, the in-the-money amount as defined in Sec.  190.01 of this
    chapter may be excluded in computing such 10 percent; and
    * * * * *
    0
    8. In Sec.  4.13, revise paragraph (a)(3)(ii)(A) to read as follows:

    Sec.  4.13   Exemption from registration as a commodity pool operator.

    * * * * *
        (a) * * *
        (3) * * *
        (ii) * * *
        (A) The aggregate initial margin, premiums, and required minimum
    security deposit for retail forex transactions (as defined in Sec. 
    5.1(m) of this chapter) required to establish such positions,
    determined at the time the most recent position was established, will
    not exceed 5 percent of the liquidation value of the pool’s portfolio,
    after taking into account unrealized profits and unrealized losses on
    any such positions it has entered into; Provided, That in the case of
    an option that is in-the-money at the time of purchase, the in-the-
    money amount as defined in Sec.  190.01 of this chapter may be excluded
    in computing such 5 percent; or
    * * * * *

    PART 41–SECURITY FUTURES PRODUCTS

    0
    9. The authority citation for part 41 continues to read as follows:

        Authority:  Sections 206, 251 and 252, Pub. L. 106-554, 114
    Stat. 2763, 7 U.S.C. 1a, 2, 6f, 6j, 7a-2, 12a; 15 U.S.C. 78g(c)(2).

    0
    10. In Sec.  41.41, revise paragraph (d) to read as follows:

    Sec.  41.41  Security futures products accounts.

    * * * * *
        (d) Recordkeeping requirements. The Commission’s recordkeeping
    rules set forth in Sec. Sec.  1.31, 1.32, 1.35, 1.36, 1.37, 4.23, 4.33,
    and 18.05 of this chapter shall apply to security futures product
    transactions and positions in a futures account (as that term is
    defined in Sec.  1.3 of this chapter). These rules shall not apply to
    security futures product transactions and positions in a securities
    account (as that term is defined in Sec.  1.3 of this chapter);
    provided, that the SEC’s recordkeeping rules apply to those
    transactions and positions.
    * * * * *
    0
    11. Revise part 190 to read as follows:

    [[Page 36075]]

    PART 190–BANKRUPTCY RULES

    Subpart A–General Provisions
    Sec.
    190.00 Statutory authority, organization, core concepts, scope, and
    construction.
    190.01 Definitions.
    190.02 General.
    Subpart B–Futures Commission Merchant as Debtor
    Sec.
    190.03 Notices and proofs of claims.
    190.04 Operation of the debtor’s estate–customer property.
    190.05 Operation of the debtor’s estate–general.
    190.06 Making and taking delivery under commodity contracts.
    190.07 Transfers.
    190.08 Calculation of allowed net equity.
    190.09 Allocation of property and allowance of claims.
    190.10 Provisions applicable to futures commission merchants during
    business as usual.
    Subpart C–Clearing Organization as Debtor
    Sec.
    190.11 Scope and purpose of this subpart.
    190.12 Required reports and records.
    190.13 Prohibition on avoidance of transfers.
    190.14 Operation of the estate of the debtor subsequent to the
    filing date.
    190.15 Recovery and wind-down plans; default rules and procedures.
    190.16 Delivery.
    190.17 Calculation of net equity.
    190.18 Treatment of property.
    190.19 Support of daily settlement.
    Appendix A to Part 190–Customer Proof of Claim Form
    Appendix B to Part 190–Special Bankruptcy Distributions

        Authority:  7 U.S.C. 1a, 2, 6c, 6d, 6g, 7a-1, 12, 12a, 19, and
    24; 11 U.S.C. 362, 546, 548, 556, and 761-767, unless otherwise
    noted.

    Subpart A–General Provisions

    Sec.  190.00  Statutory authority, organization, core concepts, scope,
    and construction.

        (a) Statutory authority. The Commission has adopted the regulations
    in this part pursuant to its authority under sections 8a(5) and 20 of
    the Commodity Exchange Act (the Act). Section 8a(5) provides general
    rulemaking authority to effectuate the provisions and accomplish the
    purposes of the Act. Section 20 provides that the Commission may,
    notwithstanding title 11 of the United States Code, adopt certain rules
    or regulations governing a proceeding involving a commodity broker that
    is a debtor under subchapter IV of chapter 7 of the Bankruptcy Code.
    Specifically, the Commission is authorized to adopt rules or
    regulations specifying–
        (1) That certain cash, securities or other property, or commodity
    contracts, are to be included in or excluded from customer property or
    member property;
        (2) That certain cash, securities or other property, or commodity
    contracts, are to be specifically identifiable to a particular customer
    in a particular capacity;
        (3) The method by which the business of the commodity broker is to
    be conducted or liquidated after the date of the filing of the petition
    under chapter 7 of the Bankruptcy Code, including the payment and
    allocation of margin with respect to commodity contracts not
    specifically identifiable to a particular customer pending their
    orderly liquidation;
        (4) Any persons to which customer property and commodity contracts
    may be transferred under section 766 of the Bankruptcy Code; and
        (5) How a customer’s net equity is to be determined.
        (b) Organization. This part is organized into three subparts.
    Subpart A contains general provisions applicable in all cases. Subpart
    B contains provisions that apply when the debtor is a futures
    commission merchant (as that term is defined in the Act or Commission
    regulations). This includes acting as a foreign futures commission
    merchant, as defined in section 761(12) of the Bankruptcy Code, but
    excludes a person that is “notice-registered” as a futures commission
    merchant pursuant to section 4f(a)(2) of the Act. Subpart C contains
    provisions that apply when the debtor is registered as a derivatives
    clearing organization under the Act.
        (c) Core concepts. The regulations in this part reflect several
    core concepts. The following descriptions of core concepts in this
    paragraph (c) are subject to the further specific requirements set
    forth in this part, and the specific requirements in this part should
    be interpreted and applied consistently with these core concepts.
        (1) Commodity brokers. Subchapter IV of chapter 7 of the Bankruptcy
    Code applies to a debtor that is a commodity broker, against which a
    customer holds a “net equity” claim relating to a commodity contract.
    This part is limited to a commodity broker that is–
        (i) A futures commission merchant; or
        (ii) A derivatives clearing organization registered under the Act
    and Sec.  39.3 of this chapter.
        (2) Account classes. The Act and Commission regulations in parts 1,
    22, and 30 of this chapter provide differing treatment and protections
    for different types of cleared commodity contracts. This part
    establishes three account classes that correspond to the different
    types of accounts that futures commission merchants and clearing
    organizations are required to maintain under the regulations in the
    preceding sentence, specifically, the futures account class (including
    options on futures), the foreign futures account class (including
    options on foreign futures) and the cleared swaps account class
    (including cleared options other than options on futures or foreign
    futures). This part also establishes a fourth account class, the
    delivery account class (which may be further subdivided as provided in
    this part), for property held in an account designated within the books
    and records of the debtor as a delivery account, for effecting delivery
    under commodity contracts whose terms require settlement via delivery
    when the commodity contract is held to expiration or, in the case of a
    cleared option, is exercised.
        (3) Public customers and non-public customers; Commission
    segregation requirements; member property–(i) Public customers and
    non-public customers. This part prescribes separate treatment of
    “public customers” and “non-public customers” (as these terms are
    defined in Sec.  190.01) within each account class in the event of a
    proceeding under this part in which the debtor is a futures commission
    merchant. Public customers of a debtor futures commission merchant are
    entitled to a priority in the distribution of cash, securities or other
    customer property over non-public customers, and both have priority
    over all other claimants (except for claims relating to the
    administration of customer property) pursuant to section 766(h) of the
    Bankruptcy Code.
        (A) The cash, securities or other property held on behalf of the
    public customers of a futures commission merchant in the futures,
    foreign futures or cleared swaps account classes are subject to special
    segregation requirements imposed under parts 1, 22, and 30 of this
    chapter for each account class. Although such segregation requirements
    generally are not applicable to cash, securities or other property
    received from or reflected in the futures, foreign futures or cleared
    swaps accounts of non-public customers of a futures commission
    merchant, such transactions and property are customer property within
    the scope of this part.
        (B) While parts 1, 22, and 30 of this chapter do not impose special
    segregation requirements with respect to treatment of cash, securities
    or other property of public customers carried in a delivery account,
    such property does constitute customer property. Thus, the

    [[Page 36076]]

    distinction between public and non-public customers is, given the
    priority for public customers in section 766(h) of the Bankruptcy Code,
    relevant for the purpose of making distributions to delivery account
    class customers pursuant to this part.
        (ii) Clearing organization bankruptcies: Member property and
    customer property other than member property. In the event of a
    proceeding under this part in which the debtor is a clearing
    organization, the classification of customers as public customers or
    non-public customers also is relevant, in that each member of the
    clearing organization will have separate claims against the clearing
    organization (by account class) with respect to–
        (A) Commodity contract transactions cleared for its own account or
    on behalf of any of its non-public customers (which are cleared in a
    “house account” at the clearing organization); and
        (B) Commodity contract transactions cleared on behalf of any public
    customers of the clearing member (which are cleared in accounts at the
    clearing organization that is separate and distinct from house
    accounts). Thus, for a clearing organization, “customer property” is
    divided into “member property” and “customer property other than
    member property.” The term member property is used to identify the
    cash, securities or property available to pay the net equity claims of
    clearing members based on their house account at the clearing
    organization.
        (iii) Preferential assignment among customer classes and account
    classes for clearing organization bankruptcies. Section 190.18 is
    designed to support the interests of public customers of members of a
    debtor that is a clearing organization.
        (A) Certain customer property is preferentially assigned to
    “customer property other than member property” instead of “member
    property” to the extent that there is a shortfall in funded balances
    for members’ public customer claims. Moreover, to the extent that there
    are excess funded balances for members’ claims in any customer class/
    account class combination, that excess is also preferentially assigned
    to “customer property other than member property” to the extent of
    any shortfall in funded balances for members’ public customer claims.
        (B) Where property is assigned to a particular customer class with
    more than one account class, it is assigned to the account class for
    which the funded balance percentage is the lowest until there are two
    account classes with equal funded balance percentages, then to both
    such account classes, keeping the funded balance percentage the same,
    and so forth following the analogous approach if the debtor has more
    than two account classes within the relevant customer class.
        (4) Porting of public customer commodity contract positions. In a
    proceeding in which the debtor is a futures commission merchant, this
    part sets out a policy preference for transferring to another futures
    commission merchant, or “porting,” open commodity contract positions
    of the debtor’s public customers along with all or a portion of such
    customers’ account equity. Porting mitigates risks to both the
    customers of the debtor futures commission merchant and to the markets.
    To facilitate porting, this part addresses the manner in which the
    debtor’s business is to be conducted on and after the filing date, with
    specific provisions addressing the collection and payment of margin for
    open commodity contract positions prior to porting.
        (5) Pro rata distribution. (i) The commodity broker provisions of
    the Bankruptcy Code, subchapter IV of Chapter 7, in particular section
    766(h), have long revolved around the principle of pro rata
    distribution. If there is a shortfall in the cash, securities or other
    property in a particular account class needed to satisfy the net equity
    claims of public customers in that account class, the customer property
    in that account class will be distributed pro rata to those public
    customers (subject to appendix B of this part). Any customer property
    not attributable to a specific account class, or that exceeds the
    amount needed to pay allowed customer net equity claims in a particular
    account class, will be distributed to public customers in other account
    classes so long as there is a shortfall in those other classes. Non-
    public customers will not receive any distribution of customer property
    so long as there is any shortfall, in any account class, of customer
    property needed to satisfy public customer net equity claims.
        (ii) The pro rata distribution principle means that, if there is a
    shortfall of customer property in an account class, all customers
    within that account class will suffer the same proportional loss
    relative to their allowed net equity claims. The principle in this
    paragraph (c)(5)(ii) applies to all customers, including those who post
    as collateral specifically identifiable property or letters of credit.
    The pro rata distribution principle is subject to the special
    distribution provisions set forth in Framework 1 of appendix B to this
    part for cross-margin accounts and Framework 2 of appendix B to this
    part for funds held outside of the U.S. or held in non-U.S. currency.
        (6) Deliveries. (i) Commodity contracts may have terms that require
    a customer owning the contract–
        (A) To make or take delivery of the underlying commodity if the
    customer holds the contract to a delivery position; or,
        (B) In the case of an option on a commodity–
        (1) To make delivery upon exercise (as the buyer of a put option or
    seller of a call option); or
        (2) To take delivery upon exercise (as seller of a put option or
    buyer of a call option). Depending upon the circumstances and relevant
    market, delivery may be effected via a delivery account, a futures
    account, a foreign futures account or a cleared swaps account, or, when
    the commodity subject to delivery is a security, in a securities
    account (in which case property associated with the delivery held in a
    securities account is not part of any customer account class for
    purposes of this part).
        (ii) Although commodity contracts with delivery obligations are
    typically offset before reaching the delivery stage (i.e., prior to
    triggering bilateral delivery obligations), when delivery obligations
    do arise, a delivery default could have a disruptive effect on the cash
    market for the commodity and adversely impact the parties to the
    transaction. This part therefore sets out special provisions to address
    open commodity contracts that are settled by delivery, when those
    positions are nearing or have entered into a delivery position at the
    time of or after the filing date. The delivery provisions in this part
    are intended to allow deliveries to be completed in accordance with the
    rules and established practices for the relevant commodity contract
    market or clearing organization, as applicable and to the extent
    permitted under this part.
        (iii) In a proceeding in which the debtor is a futures commission
    merchant, the delivery provisions in this part reflect policy
    preferences to–
        (A) Liquidate commodity contracts that settle via delivery before
    they move into a delivery position; and
        (B) When such contracts are in a delivery position, to allow
    delivery to occur, where practicable, outside administration of the
    debtor’s estate.
        (iv) The delivery provisions in this part apply to any commodity
    that is subject to delivery under a commodity contract, as the term
    commodity is defined in section of 1a(9) of the Act, whether the
    commodity itself is tangible or intangible, including agricultural
    commodities as defined in Sec.  1.3 of this

    [[Page 36077]]

    chapter, other non-financial commodities (such as metals or energy
    commodities) covered by the definition of exempt commodity in section
    1a(20) of the Act, and commodities that are financial in nature (such
    as foreign currencies) covered by the definition of excluded commodity
    in section 1a(19) of the Act. The delivery provisions also apply to
    virtual currencies that are subject to delivery under a commodity
    contract.
        (d) Scope–(1) Proceedings–(i) Certain commodity broker
    proceedings under subchapter IV of chapter 7 of the Bankruptcy Code.
    (A) Section 101(6) of the Bankruptcy Code recognizes “futures
    commission merchants” and “foreign futures commission merchants,” as
    those terms are defined in section 761(12) of the Bankruptcy Code, as
    separate categories of commodity broker. The definition of commodity
    broker in Sec.  190.01, as it applies to a commodity broker that is a
    futures commission merchant under the Act, also covers foreign futures
    commission merchants because a foreign futures commission merchant is
    required to register as a futures commission merchant under the Act.
        (B) Section 101(6) of the Bankruptcy Code recognizes “commodity
    options dealers,” and “leverage transaction merchants” as defined in
    sections 761(6) and (13) of the Bankruptcy Code, as separate categories
    of commodity brokers. There are no commodity options dealers or
    leverage transaction merchants as of [date final rule is signed by the
    Secretary of the Commission].1
    —————————————————————————

        1 The Commission intends to adopt rules with respect to
    commodity options dealers or leverage transaction merchants,
    respectively, at such time as an entity registers as such.
    —————————————————————————

        (ii) Futures commission merchants subject to a SIPA proceeding.
    Pursuant to section 7(b) of SIPA, 15 U.S.C. 78fff-1(b), the trustee in
    a SIPA proceeding, where the debtor also is a commodity broker, has the
    same duties as a trustee in a proceeding under subchapter IV of chapter
    7 of the Bankruptcy Code, to the extent consistent with the provisions
    of SIPA or as otherwise ordered by the court. This part therefore also
    applies to a proceeding commenced under SIPA with respect to a debtor
    that is registered as a broker or dealer under section 15 of the
    Securities Exchange Act of 1934 when the debtor also is a futures
    commission merchant.
        (iii) Commodity brokers subject to an FDIC proceeding. Section
    5390(m)(1)(B) of title 12 of the United States Code provides that the
    FDIC must apply the provisions of subchapter IV of chapter 7 of the
    Bankruptcy Code in respect of the distribution of customer property and
    member property in connection with the liquidation of a covered
    financial company or a bridge financial company (as those terms are
    defined in section 5381(a) of title 12) that is a commodity broker as
    if such person were a debtor for purposes of subchapter IV, except as
    specifically provided in section 5390 of title 12. This part therefore
    shall serve as guidance as to such distribution of property in a
    proceeding in which the FDIC is acting as a receiver pursuant to title
    II of the Dodd-Frank Wall Street Reform and Consumer Protection Act
    with respect to a covered financial company or bridge financial company
    that is a commodity broker whose liquidation otherwise would be
    administered by a trustee under subchapter IV of chapter 7 of the
    Bankruptcy Code.
        (2) Account class and implied trust limitations. (i) The trustee
    may not recognize any account class that is not one of the account
    classes enumerated in Sec.  190.01.
        (ii) No property that would otherwise be included in customer
    property, as defined in Sec.  190.01, shall be excluded from customer
    property because such property is considered to be held in a
    constructive, resulting, or other trust that is implied in equity.
        (3) Commodity contract exclusions. For purposes of this part, the
    following are excluded from the term “commodity contract”:
        (i) Options on commodities (including swaps subject to regulation
    under part 32 of this chapter) that are not centrally cleared by a
    clearing organization or foreign clearing organization.
        (ii) Transactions, contracts, or agreements that are classified as
    “forward contracts” under the Act pursuant to the exclusion from the
    term “future delivery” set out in section 1a(27) of the Act or the
    exclusion from the definition of a “swap” under section 1a(47)(B)(ii)
    of the Act, in each case that are not centrally cleared by a clearing
    organization or foreign clearing organization.
        (iii) Security futures products as defined in section 1a(45) of the
    Act when such products are held in a securities account.
        (iv) Any off-exchange retail foreign currency transaction,
    contract, or agreement described in sections 2(c)(2)(B) or (C) of the
    Act.
        (v) Any security-based swap or other security (as defined in
    section 3 of the Exchange Act), but a security futures product that is
    carried in an account for which there is a corresponding account class
    under this part is not so excluded.
        (vi) Any off-exchange retail commodity transaction, contract, or
    agreement described in section 2(c)(2)(D) of the Act, unless such
    transaction, contract, or agreement is traded on or subject to the
    rules of a designated contract market or foreign board of trade as, or
    as if, such transaction, contract or agreement is a futures contract.
        (e) Construction. (1) A reference in this part to a specific
    section of a Federal statute refers to such section as the same may be
    amended, superseded, or renumbered.
        (2) Where they differ, the definitions set forth in Sec.  190.01
    shall be used instead of defined terms set forth in section 761 of the
    Bankruptcy Code. In many cases, these definitions are based on
    definitions in parts 1, 22, and 30 of this chapter. Notwithstanding the
    use of different defined terms, the regulations in this part are
    intended to be consistent with the provisions and objectives of
    subchapter IV of chapter 7 of the Bankruptcy Code.
        (3) In the context of portfolio margining and cross margining
    programs, commodity contracts and associated collateral will be treated
    as part of the account class in which, consistent with part 1, 22, 30,
    or 39 of this chapter, or Commission Order, they are held.
        (i) Thus, as noted in paragraph (2) of the definition of account
    class in Sec.  190.01, where open commodity contracts (and associated
    collateral) that would be attributable to one account class are,
    instead, commingled with the commodity contracts (and associated
    collateral) in a second account class (the “home field”), then the
    trustee must treat all such commodity contracts and collateral as part
    of, and consistent with the regulations applicable to, the second
    account class.
        (ii) The concept in paragraph (e)(3)(i) of this section, that the
    rules of the “home field” will apply, also pertains to securities
    positions that are, pursuant to an approved cross margining program,
    held in a commodities account class (in which case the rules of that
    commodities account class will apply) and to commodities positions that
    are, pursuant to an approved cross-margining program, held in a
    securities account (in which case, the rules of the securities account
    will apply, consistent with section 16(2)(b)(ii) of SIPA, 15 U.S.C.
    78lll(2)(b)(ii)).

    Sec.  190.01   Definitions.

        For purposes of this part:
        Account class, for purposes of this part:

    [[Page 36078]]

        (1) Means one or more of each of the following types of accounts
    maintained by a futures commission merchant or clearing organization
    (as applicable), each type of which must be recognized as a separate
    account class by the trustee:
        (i) Futures account has the same definition as set forth in Sec. 
    1.3 of this chapter.
        (ii) Foreign futures account means:
        (A) A 30.7 account, as such term is defined in Sec.  30.1(g) of
    this chapter; and
        (B) An account maintained on the books and records of a clearing
    organization for the purpose of accounting for transactions in futures
    or options on futures contracts executed on or subject to the rules of
    a foreign board of trade, cleared or settled by the clearing
    organization for a member that is a futures commission merchant (and
    related cash, securities or other property), on behalf of that member’s
    30.7 customers (as that latter term is defined in Sec.  30.1(f) of this
    chapter).
        (iii) Cleared swaps account means a cleared swaps customer account,
    as such term is defined in Sec.  22.1 of this chapter.
        (iv)(A) Delivery account means:
        (1) An account maintained on the books and records of a futures
    commission merchant for the purpose of accounting for the making or
    taking of delivery under commodity contracts whose terms require
    settlement by delivery of a commodity, and which is designated as a
    delivery account on the books and records of the futures commission
    merchant; and
        (2) An account maintained on the books and records of a clearing
    organization for a clearing member (or a customer of a clearing member)
    for the purpose of accounting for the making or taking of delivery
    under commodity contracts whose terms require settlement by delivery of
    a commodity, as well as any account in which the clearing organization
    holds physical delivery property represented by electronic title
    documents or otherwise existing in an electronic (dematerialized) form
    in its capacity as a central depository, in each case where the account
    is designated as a delivery account on the books and the records of the
    clearing organization.
        (B) The delivery account class is further divided into a “physical
    delivery account class” and a “cash delivery account class,” as
    provided in Sec.  190.06(b), each of which shall be recognized as a
    separate class of account by the trustee.
        (2)(i) If open commodity contracts that would otherwise be
    attributable to one account class (and any property margining,
    guaranteeing, securing or accruing in respect of such commodity
    contracts) are, pursuant to a Commission rule, regulation, or order, or
    a clearing organization rule approved in accordance with Sec. 
    39.15(b)(2) of this chapter, held separately from other commodity
    contracts and property in that account class and are commingled with
    the commodity contracts and property of another account class, then the
    trustee must treat the former commodity contracts (and any property
    margining, guaranteeing, securing or accruing in respect of such
    commodity contracts), for purposes of this part, as being held in an
    account of the latter account class.
        (ii) The principle in paragraph (2)(i) of this definition will be
    applied to securities positions and associated collateral held in a
    commodity account class pursuant to a cross margining program approved
    by the Commission (and thus treated as part of that commodity account
    class) and to commodity positions and associated collateral held in a
    securities account pursuant to a cross margining program approved by
    the Commission (and thus treated as part of the securities account).
        (3) For the purpose of this definition, a commodity broker is
    considered to maintain an account for another person by establishing
    internal books and records in which it records the person’s commodity
    contracts and cash, securities or other property received from or on
    behalf of such person or accruing to the credit of such person’s
    account, and related activity (such as liquidation of commodity
    contract positions or adjustments to reflect mark-to-market gains or
    losses on commodity contract positions), regardless whether the
    commodity broker has kept such books and records current or accurate.
        Act means the Commodity Exchange Act.
        Allowed net equity means, for purposes of subpart B of this part,
    the amount calculated as allowed net equity in accordance with Sec. 
    190.08(a), and for purposes of subpart C of this part, the amount
    calculated as allowed net equity in accordance with Sec.  190.17(c).
        Bankruptcy Code means, except as the context of the regulations in
    this part otherwise requires, those provisions of title 11 of the
    United States Code relating to ordinary bankruptcies (chapters 1
    through 5) and liquidations (chapter 7 with the exception of
    subchapters III and V, together with the Federal rules of bankruptcy
    procedure relating thereto.
        Business day means weekdays, not including Federal holidays as
    established annually by 5 U.S.C. 6103. A business day begins at 8:00
    a.m. in Washington, DC, and ends at 7:59:59 a.m. on the next day that
    is a business day.
        Calendar day means the time from midnight to midnight in
    Washington, DC.
        Cash delivery account class has the meaning set forth under account
    class in this section.
        Cash delivery property means any cash or cash equivalents recorded
    in a delivery account that is, as of the filing date:
        (1) Credited to such account to pay for receipt of delivery of a
    commodity under a commodity contract;
        (2) Credited to such account to collateralize or guarantee an
    obligation to make or take delivery of a commodity under a commodity
    contract; or
        (3) Has been credited to such account as payment received in
    exchange for making delivery of a commodity under a commodity contract.
    It also includes property in the form of commodities that have been
    delivered after the filing date in exchange for cash or cash
    equivalents held in a delivery account as of the filing date. The cash
    or cash equivalents must be identified on the books and the records of
    the debtor as having been received, from or for the account of a
    particular customer, on or after three calendar days before the
    relevant–
        (i) First notice date in the case of a futures contract; or
        (ii) Exercise date in the case of a (cleared) option.
        Cash equivalents means assets, other than United States dollar
    cash, that are highly liquid such that they may be converted into
    United States dollar cash within one business day without material
    discount in value.
        Cleared swaps account has the meaning set forth under account class
    in this section.
        Clearing organization means a derivatives clearing organization
    that is registered with the Commission as such under the Act.
        Commodity broker means any person that is–
        (1) A futures commission merchant under the Act, but excludes a
    person that is “notice-registered” as a futures commission merchant
    under section 4f(a)(2) of the Act; or
        (2) A clearing organization, in each case with respect to which
    there is a “customer” as that term is defined in this section.
        Commodity contract means–
        (1) A futures or options on futures contract executed on or subject
    to the rules of a designated contract market;

    [[Page 36079]]

        (2) A futures or option on futures contract executed on or subject
    to the rules of a foreign board of trade;
        (3) A swap as defined in section 1a(47) of the Act and Sec.  1.3 of
    this chapter, that is directly or indirectly submitted to and cleared
    by a clearing organization and which is thus a cleared swap as that
    term is defined in section 1a(7) of the Act and Sec.  22.1 of this
    chapter; or
        (4) Any other contract that is a swap for purposes of this part
    under the definition in this section and is submitted to and cleared by
    a clearing organization. Notwithstanding the preceding sentence, a
    security futures product as defined in section 1a(45) of the Act is not
    a commodity contract for purposes of this part when such contract is
    held in a securities account. Moreover, a contract, agreement, or
    transaction described in Sec.  190.00(d)(3) as excluded from the term
    “commodity contract” is excluded from this definition.
        Commodity contract account means–
        (1) A futures account, foreign futures account, cleared swaps
    account, or delivery account; or
        (2) If the debtor is a futures commission merchant, for purposes of
    identifying customer property for the foreign futures account class
    (subject to Sec.  190.09(a)(1)), an account maintained for the debtor
    by a foreign clearing organization or a foreign futures intermediary
    reflecting futures or options on futures executed on or subject to the
    rules of a foreign board of trade, including any account maintained on
    behalf of the debtor’s public customers.
        Court means the court having jurisdiction over the debtor’s estate.
        Cover has the meaning set forth in Sec.  1.17(j) of this chapter.
        Customer means:
        (1)(i) With respect to a futures commission merchant as debtor
    (including a foreign futures commission merchant as that term is
    defined in section 761(12) of the Bankruptcy Code), the meaning set
    forth in sections 761(9)(A) and (B) of the Bankruptcy Code.
        (ii) With respect to a clearing organization as debtor, the meaning
    set forth in section 761(9)(D) of the Bankruptcy Code.
        (2) The term customer includes the owner of a portfolio cross-
    margining account covering commodity contracts and related positions in
    securities (as defined in section 3 of the Exchange Act) that is
    carried as a futures account or cleared swaps customer account pursuant
    to an appropriate rule, regulation, or order of the Commission.
        Customer claim of record means a customer claim that is
    determinable solely by reference to the records of the debtor.
        Customer class means each of the following two classes of
    customers, which must be recognized as separate classes by the trustee:
    Public customers and non-public customers; provided, however, that when
    the debtor is a clearing organization the references to public
    customers and non-public customers are based on the classification of
    customers of, and in relation to, the members of the clearing
    organization.
        Customer property and customer estate are used interchangeably to
    mean the property subject to pro rata distribution in a commodity
    broker bankruptcy in the priority set forth in sections 766(h) or (i),
    as applicable, of the Bankruptcy Code, and includes cash, securities,
    and other property as set forth in Sec.  190.09(a).
        Debtor means a person with respect to which a proceeding is
    commenced under subchapter IV of chapter 7 of the Bankruptcy Code or
    under SIPA, or for which the Federal Deposit Insurance Corporation is
    appointed as a receiver pursuant to 12 U.S.C. 5382, provided, however,
    that this part applies only to such a proceeding if the debtor is a
    commodity broker as defined in this section.
        Delivery account has the meaning set forth under account class in
    this section.
        Distribution of property to a customer includes transfer of
    property on the customer’s behalf, return of property to a customer, as
    well as distributions to a customer of valuable property that is
    different than the property posted by that customer.
        Equity means the amount calculated as equity in accordance with
    Sec.  190.08(b)(1).
        Exchange Act means the Securities Exchange Act of 1934, as amended,
    15 U.S.C. 78a et seq.
        FDIC means the Federal Deposit Insurance Corporation.
        Filing date means the date a petition under the Bankruptcy Code or
    application under SIPA commencing a proceeding is filed or on which the
    FDIC is appointed as a receiver pursuant to 12 U.S.C. 5382(a).
        Final net equity determination date means the latest of:
        (1) The day immediately following the day on which all commodity
    contracts held by or for the account of customers of the debtor have
    been transferred, liquidated, or satisfied by exercise or delivery;
        (2) The day immediately following the day on which all property
    other than commodity contracts held for the account of customers has
    been transferred, returned, or liquidated;
        (3) The bar date for filing customer proofs of claim as determined
    by rule 3002(c) of the Federal Rules of Bankruptcy Procedure, the
    expiration of the six-month period imposed pursuant to section 8(a)(3)
    of SIPA, or such other date (whether earlier or later) set by the court
    (or, in the case of the FDIC acting as a receiver pursuant to 12 U.S.C.
    5382(a), the deadline set by the FDIC pursuant to 12 U.S.C.
    5390(a)(2)(B)); or
        (4) The day following the allowance (by the trustee or by the
    bankruptcy court) or disallowance (by the bankruptcy court) of all
    disputed customer net equity claims.
        Foreign board of trade has the same meaning as set forth in Sec. 
    1.3 of this chapter.
        Foreign clearing organization means a clearing house, clearing
    association, clearing corporation, or similar entity, facility, or
    organization clears and settles transactions in futures or options on
    futures executed on or subject to the rules of a foreign board of
    trade.
        Foreign future shall have the same meaning as that set forth in
    section 761(11) of the Bankruptcy Code.
        Foreign futures account has the meaning set forth under account
    class in this section.
        Foreign futures commission merchant shall have the same meaning as
    that set forth in section 761(12) of the Bankruptcy Code.
        Foreign futures intermediary refers to a foreign futures and
    options broker, as such term is defined in Sec.  30.1(e) of this
    chapter, acting as an intermediary for foreign futures contracts
    between a foreign futures commission merchant and a foreign clearing
    organization.
        Funded balance means the amount calculated as funded balance in
    accordance with Sec.  190.08(c) and, as applicable, Sec.  190.17(d).
        Futures and futures contract are used interchangeably to mean any
    contract for the purchase or sale of a commodity (as defined in section
    1a(9) of the Act) for future delivery that is executed on or subject to
    the rules of a designated contract market or on or subject to the rules
    of a foreign board of trade. The term also covers, for purposes of this
    part:
        (1) Any transaction, contract or agreement described in section
    2(c)(2)(D) of the Act and traded on or subject to the rules of a
    designated contract market or foreign board of trade, to the extent not
    covered by the foregoing definition; and

    [[Page 36080]]

        (2) Any transaction, contract or agreement that is classified as a
    “forward contract” under the Act pursuant to the exclusion from the
    term “future delivery” set out in section 1a(27) of the Act or the
    exclusion from the definition of a “swap” under section 1a(47)(B)(ii)
    of the Act, provided that such transaction, contract, or agreement is
    traded on or subject to the rules of a designated contract market or
    foreign board of trade and is cleared by, respectively, a clearing
    organization or foreign clearing organization the same as if it were a
    futures contract.
        Futures account has the meaning set forth under account class in
    this section.
        House account means:
        (1) In the case of a futures commission merchant, any proprietary
    account, as defined in Sec.  1.3 of this chapter, with respect to
    futures contracts or swaps;
        (2) In the case of a foreign futures commission merchant, any
    proprietary account, as defined in Sec.  1.3 of this chapter, with
    respect to foreign futures contracts; and
        (3) In the case of a clearing organization, any commodity contract
    account of a member at such clearing organization maintained to reflect
    trades for the member’s own account or for any non-public customer of
    such member.
        In-the-money means:
        (1) With respect to a call option, when the value of the underlying
    interest (such as a commodity or futures contract) which is the subject
    of the option exceeds the strike price of the option; and
        (2) With respect to a put option, when the value of the underlying
    interest (such as a commodity or futures contract) which is the subject
    of the option is exceeded by the strike price of the option.
        Joint account means any commodity contract account held by more
    than one person.
        Member property means, in connection with a clearing organization
    bankruptcy, the property which may be used to pay that portion of the
    net equity claim of a member which is based on the member’s house
    account at the clearing organization, including any claims on behalf of
    non-public customers of the member.
        Net equity means, for purposes of subpart B of this part, the
    amount calculated as net equity in accordance with Sec.  190.08(b), and
    for purposes of subpart C of this part, the amount calculated as net
    equity in accordance with Sec.  190.17(b).
        Non-public customer means:
        (1) With respect to a futures commission merchant, any customer
    that is not a public customer; and
        (2) With respect to a clearing organization, any person whose
    account carried on the books and records of–
        (i) A member of the clearing organization that is a futures
    commission merchant, is classified as a proprietary account under Sec. 
    1.3 of this chapter (in the case of the futures or foreign futures
    account class) or as a cleared swaps proprietary account under Sec. 
    22.1 of this chapter (in the case of the cleared swaps account class);
    or
        (ii) A member of the clearing organization that is a foreign
    broker, is classified or treated as proprietary under and for purposes
    of–
        (A) The rules of the clearing organization; or
        (B) The jurisdiction of incorporation of such member.
        Open commodity contract means a commodity contract which has been
    established in fact and which has not expired, been redeemed, been
    fulfilled by delivery or exercise, or been offset (i.e., liquidated) by
    another commodity contract.
        Order for relief has the same meaning set forth in section 301 of
    the Bankruptcy Code, in the case of the filing of a voluntary
    bankruptcy petition, and means the entry of an order granting relief
    under section 303 of the Bankruptcy Code in an involuntary case. It
    also means, where applicable, the issuance of a protective decree under
    section 5(b)(1) of SIPA or the appointment of the FDIC as receiver
    pursuant to 12 U.S.C. 5382(a)(1)(A).
        Person means any individual, association, partnership, corporation,
    trust, or other form of legal entity.
        Physical delivery account class has the meaning set forth under
    account class in this section.
        Physical delivery property means a commodity, whether tangible or
    intangible, held in a form that can be delivered to meet and fulfill
    delivery obligations under a commodity contract that settles via
    delivery if held to a delivery position (as described in Sec. 
    190.06(a)(1)), including warehouse receipts, shipping certificates or
    other documents of title (including electronic title documents) for the
    commodity, or the commodity itself:
        (1) That the debtor holds for the account of a customer for the
    purpose of making delivery of such commodity on the customer’s behalf,
    which as of the filing date or thereafter, can be identified on the
    books and records of the debtor as held in a delivery account for the
    benefit of such customer. Cash or cash equivalents received after the
    filing date in exchange for delivery of such physical delivery property
    shall also constitute physical delivery property;
        (2) That the debtor holds for the account of a customer and that
    the customer received or acquired by taking delivery under an expired
    or exercised commodity contract and which, as of the filing date or
    thereafter, can be identified on the books and records of the debtor as
    held in a delivery account for the benefit of such customer, regardless
    how long such property has been held in such account; and
        (3) Where property that the debtor holds in a futures account,
    foreign futures account or cleared swaps account, or, if the commodity
    is a security, in a securities account, would meet the criteria listed
    in paragraph (1) or (2) of this definition, but for the fact of being
    held in such account rather than a delivery account, such property will
    be considered physical delivery property solely for purposes of the
    obligations to make or take delivery of physical delivery property
    pursuant to Sec.  190.06.
        (4) Commodities or documents of title that are not held by the
    debtor and are delivered or received by a customer in accordance with
    Sec.  190.06(a)(2) (or in accordance with Sec.  190.06(a)(2) in
    conjunction with Sec.  190.16(a) if the debtor is a clearing
    organization) to fulfill a customer’s delivery obligation under a
    commodity contract will be considered physical delivery property solely
    for purposes of the obligations to make or take delivery of physical
    delivery property pursuant to Sec.  190.06. As this property is held
    outside of the debtor’s estate, it is not subject to pro rata
    distribution.
        Primary liquidation date means the first business day immediately
    following the day on which all commodity contracts (including any
    commodity contracts that are specifically identifiable property) have
    been liquidated or transferred.
        Public customer means:
        (1) With respect to a futures commission merchant and in relation
    to:
        (i) The futures account class, a futures customer as defined in
    Sec.  1.3 of this chapter whose futures account is subject to the
    segregation requirements of section 4d(a) of the Act and the
    regulations in this chapter that implement section 4d(a), including as
    applicable Sec. Sec.  1.20 through 1.30 of this chapter;
        (ii) The foreign futures account class, a Sec.  30.7 customer as
    defined in Sec.  30.1 of this chapter whose foreign futures accounts is
    subject to the segregation requirements of Sec.  30.7 of this chapter;

    [[Page 36081]]

        (iii) The cleared swaps account class, a Cleared Swaps Customer as
    defined in Sec.  22.1 of this chapter whose cleared swaps account is
    subject to the segregation requirements of part 22 of this chapter; and
        (iv) The delivery account class, a customer that is or would be
    classified as a public customer if the property reflected in the
    customer’s delivery account had been held in an account described in
    paragraph (1)(i), (ii), or (iii) of this definition.
        (2) With respect to a clearing organization, any customer of that
    clearing organization that is not a non-public customer.
        Securities account means, in relation to a futures commission
    merchant that is registered as a broker or dealer under the Exchange
    Act, an account maintained by such futures commission merchant in
    accordance with the requirements of section 15(c)(3) of the Exchange
    Act and Sec.  240.15c3-3 of this title.
        Security has the meaning set forth in section 101(49) of the
    Bankruptcy Code.
        SIPA means the Securities Investor Protection Act of 1970, 15 U.S.C
    78aaa et seq.
        Specifically identifiable property means:
        (1)(i) The following property received, acquired, or held by or for
    the account of the debtor from or for the futures account, foreign
    futures account or cleared swaps account of a customer:
        (A) Any security which as of the filing date is:
        (1)(i) Held for the account of a customer;
        (ii) Registered in such customer’s name;
        (iii) Not transferable by delivery; and
        (iv) Has a duration or maturity date of more than 180 days; or
        (2)(i) Fully paid;
        (ii) Non-exempt; and
        (iii) Identified on the books and records of the debtor as held by
    the debtor for or on behalf of the commodity contract account of a
    particular customer for which, according to such books and records as
    of the filing date, no open commodity contracts were held in the same
    capacity; and
        (B) Any warehouse receipt, bill of lading, or other document of
    title which as of the filing date:
        (1) Can be identified on the books and records of the debtor as
    held for the account of a particular customer; and
        (2) Is not in bearer form and is not otherwise transferable by
    delivery;
        (ii) Any open commodity contracts treated as specifically
    identifiable property in accordance with Sec.  190.03(c)(2); and
        (iii) Any physical delivery property described in paragraphs (1)
    through (3) of the definition of physical delivery property in this
    section.
        (2) Notwithstanding any other provision of this definition of
    specifically identifiable property, security futures products, and any
    money, securities, or property held to margin, guarantee, or secure
    such products, or accruing as a result of such products, shall not be
    considered specifically identifiable property for the purposes of
    subchapter IV of the Bankruptcy Code or this part, if held in a
    securities account.
        (3) No property that is not explicitly included in this definition
    may be treated as specifically identifiable property.
        Strike price means the price per unit multiplied by the total
    number of units at which a person may purchase or sell a futures
    contract or a commodity or other interest underlying an option that is
    a commodity contract.
        Substitute customer property means cash or cash equivalents
    delivered to the trustee by or on behalf of a customer in connection
    with–
        (1) The return of specifically identifiable property by the
    trustee; or
        (2) The return of, or an agreement not to draw upon, a letter of
    credit received, acquired, or held to margin, guarantee, secure,
    purchase, or sell a commodity contract.
        Swap has the meaning set forth in section 1a(47) of the Act and
    Sec.  1.3 of this chapter, and, in addition, also means any other
    contract, agreement, or transaction that is carried in a cleared swaps
    account pursuant to a rule, regulation, or order of the Commission,
    provided, in each case, that it is cleared by a clearing organization
    as, or the same as if it were, a swap.
        Trustee means, as appropriate, the trustee in bankruptcy or in a
    SIPA proceeding, appointed to administer the debtor’s estate and any
    interim or successor trustee, or the FDIC, where it has been appointed
    as a receiver pursuant to 12 U.S.C. 5382.
        Undermargined means, with respect to a futures account, foreign
    futures account or cleared swaps account carried by the debtor, the
    funded balance for such account is below the minimum amount that the
    debtor is required to collect and maintain for the open commodity
    contracts in such account under the rules of the relevant clearing
    organization, foreign clearing organization, designated contract
    market, swap execution facility, or foreign board of trade. If any such
    rules establish both an initial margin requirement and a lower
    maintenance margin requirement applicable to any commodity contracts
    (or to the entire portfolio of commodity contracts or any subset
    thereof) in a particular commodity contract account of the customer,
    the trustee will use the lower maintenance margin level to determine
    the customer’s minimum margin requirement for such account.
        Variation settlement means variation margin as defined in Sec.  1.3
    of this chapter plus all other daily settlement amounts (such as price
    alignment payments) that may be owed or owing on the commodity
    contract.

    Sec.  190.02   General.

        (a) Request for exemption. (1) The trustee (or, in the case of an
    involuntary petition pursuant to section 303 of the Bankruptcy Code,
    any other person charged with the management of a commodity broker)
    may, for good cause shown, request from the Commission an exemption
    from the requirements of any procedural provision in this part,
    including an extension of any time limit prescribed by this part or an
    exemption subject to conditions, provided that the Commission shall not
    grant an extension for any time period established by the Bankruptcy
    Code.
        (2) A request pursuant to paragraph (a)(1) of this section:
        (i) May be made ex parte and by any means of communication, written
    or oral, provided that the trustee must confirm an oral request in
    writing within one business day and such confirmation must contain all
    the information required by paragraph (b)(3) of this section. The
    request or confirmation of an oral request must be given to the
    Commission as provided in paragraph (a) of this section.
        (ii) Must state the particular provision of this part with respect
    to which the exemption or extension is sought, the reason for the
    requested exemption or extension, the amount of time sought if the
    request is for an extension, and the reason why such exemption or
    extension would not be contrary to the purposes of the Bankruptcy Code
    and this part.
        (3) The Director of the Division of Clearing and Risk, or members
    of the Commission staff designated by the Director, shall grant, deny,
    or otherwise respond to a request, on the basis of the information
    provided in any such request and after consultation with the Director
    of the Division of Swap Dealer and Intermediary Oversight or members of
    the Commission staff designated by the Director, unless exigent
    circumstances require immediate action precluding such prior
    consultation, and shall communicate that determination

    [[Page 36082]]

    by the most appropriate means to the person making the request.
        (b) Delegation of authority to the Director of the Division of
    Clearing and Risk. (1) Until such time as the Commission orders
    otherwise, the Commission hereby delegates to the Director of the
    Division of Clearing and Risk, and to such members of the Commission’s
    staff acting under the Director’s direction as they may designate,
    after consultation with the Director of the Division of Swap Dealer and
    Intermediary Oversight, or such member of the Commission’s staff under
    the Director’s direction as they may designate, unless exigent
    circumstances require immediate action, all the functions of the
    Commission set forth in this part, except the authority to disapprove a
    pre-relief transfer of a public customer commodity contract account or
    customer property pursuant to Sec.  190.07(e)(1).
        (2) The Director of the Division of Clearing and Risk may submit to
    the Commission for its consideration any matter which has been
    delegated to the Director pursuant to paragraph (b)(1) of this section.
        (3) Nothing in this section shall prohibit the Commission, at its
    election, from exercising its authority delegated to the Director of
    the Division of Clearing and Risk under paragraph (b)(1) of this
    section.
        (c) Forward contracts. For purposes of this part, an entity for or
    with whom the debtor deals who holds a claim against the debtor solely
    on account of a forward contract, that is not cleared by a clearing
    organization, will not be deemed to be a customer.
        (d) Other. The Bankruptcy Code will not be construed by the
    Commission to prohibit a commodity broker from doing business as any
    combination of the following: Futures commission merchant, commodity
    options dealer, foreign futures commission merchant, or leverage
    transaction merchant, nor will the Commission construe the Bankruptcy
    Code to permit any operation, trade or business, or any combination of
    the foregoing, otherwise prohibited by the Act or by any of the
    Commission’s regulations in this chapter, or by any order of the
    Commission.
        (e) Rule of construction. Contracts in security futures products
    held in a securities account shall not be considered to be “from or
    for the commodity futures account” or “from or for the commodity
    options account” of such customers, as such terms are used in section
    761(9) of the Bankruptcy Code.
        (f) Receivers. In the event that a receiver for a futures
    commission merchant (FCM) is appointed due to the violation or imminent
    violation of the customer property protection requirements of section
    4d of the Act, or of the regulations in part 1, 22, or 30 of this
    chapter that implement sections 4d or 4(b)(2) of the Act, or of the
    FCM’s minimum capital requirements in Sec.  1.17 of this chapter, such
    receiver may, in an appropriate case, file a petition for bankruptcy of
    such FCM pursuant to section 301 of the Bankruptcy Code.

    Subpart B–Futures Commission Merchant as Debtor

    Sec.  190.03   Notices and proofs of claims.

        (a) Notices–means of providing–(1) To the Commission. Unless
    instructed otherwise by the Commission, all mandatory or discretionary
    notices to be given to the Commission under this subpart shall be
    directed by electronic mail to [email protected]. For purposes
    of this subpart, notice to the Commission shall be deemed to be given
    only upon actual receipt.
        (2) To customers. The trustee, after consultation with the
    Commission, and unless otherwise instructed by the Commission, will
    establish and follow procedures reasonably designed for giving adequate
    notice to customers under this subpart and for receiving claims or
    other notices from customers. Such procedures should include, absent
    good cause otherwise, the use of a prominent website as well as
    communication to customers’ electronic addresses that are available in
    the debtor’s books and records.
        (b) Notices to the Commission and designated self-regulatory
    organizations–(1) Of commencement of a proceeding. Each commodity
    broker that is a futures commission merchant and files a petition in
    bankruptcy shall as soon as practicable before, and in any event no
    later than, the time of such filing, notify the Commission and such
    commodity broker’s designated self-regulatory organization of the
    anticipated or actual filing date, the court in which the proceeding
    will be or has been filed, and, as soon as known, the docket number
    assigned to that proceeding. Each commodity broker that is a futures
    commission merchant and against which a bankruptcy petition is filed or
    with respect to which an application for a protective decree under SIPA
    is filed shall immediately upon the filing of such petition or
    application notify the Commission and such commodity broker’s
    designated self-regulatory organization of the filing date, the court
    in which the proceeding has been filed, and, as soon as known, the
    docket number assigned to that proceeding.
        (2) Of transfers under section 764(b) of the Bankruptcy Code. As
    soon as possible, the trustee of a commodity broker that is a futures
    commissions merchant, the relevant designated self-regulatory
    organization, or the applicable clearing organization must notify the
    Commission, and in the case of a futures commission merchant, the
    trustee shall also notify its designated self-regulatory organization
    and clearing organization(s), if such person intends to transfer or to
    apply to transfer open commodity contracts or customer property on
    behalf of the public customers of the debtor in accordance with section
    764(b) of the Bankruptcy Code and Sec.  190.07(c) or (d).
        (c) Notices to customers–(1) Specifically identifiable property
    other than open commodity contracts. In any case in which an order for
    relief has been entered, the trustee must use all reasonable efforts to
    promptly notify, in accordance with paragraph (a)(2) of this section,
    any customer whose futures account, foreign futures account, or cleared
    swaps account includes specifically identifiable property, other than
    open commodity contracts, which has not been liquidated, that such
    specifically identifiable property may be liquidated commencing on and
    after the seventh day after the order for relief (or such other date as
    is specified by the trustee in the notice with the approval of the
    Commission or court) if the customer has not instructed the trustee in
    writing before the deadline specified in the notice to return such
    property pursuant to the terms for distribution of specifically
    identifiable property contained in Sec.  190.09(d)(1). Such notice must
    describe the specifically identifiable property and specify the terms
    upon which that property may be returned, including if applicable and
    to the extent practicable any substitute customer property that must be
    provided by the customer.
        (2) Open commodity contracts carried in hedging accounts. To the
    extent reasonably practicable under the circumstances of the case, and
    following consultation with the Commission, the trustee may treat open
    commodity contracts of public customers identified on the books and
    records of the debtor as held in a futures account, foreign futures
    account or cleared swaps account designated as a hedging account in the
    debtor’s records, as specifically identifiable property of such
    customer. If the trustee does not exercise such authority, such open
    commodity contracts do not constitute specifically

    [[Page 36083]]

    identifiable property. If the trustee exercises such authority, the
    trustee shall use reasonable efforts to promptly notify, in accordance
    with paragraph (a)(2) of this section, each relevant public customer of
    such determination and request the customer to provide written
    instructions whether to transfer or liquidate such open commodity
    contracts. Such notice must specify the manner for providing such
    instructions and the deadline by which the customer must provide
    instructions. Such notice must also inform the customer that–
        (i) If the customer does not provide instructions in the prescribed
    manner and by the prescribed deadline, the customer’s open commodity
    contracts will not be treated as specifically identifiable property
    under this part;
        (ii) Any transfer of the open commodity contracts is subject to the
    terms for distribution contained in Sec.  190.09(d)(2);
        (iii) Absent compliance with any terms imposed by the trustee or
    the court, the trustee may liquidate the open commodity contracts; and
        (iv) Providing instructions may not prevent the open commodity
    contracts from being liquidated.
        (3) Involuntary cases. Prior to entry of an order for relief, and
    upon leave of the court, a trustee appointed in an involuntary
    proceeding pursuant to section 303 of the Bankruptcy Code may notify
    customers, in accordance with paragraph (a)(2) of this section, of the
    commencement of such proceeding and may request customer instructions
    with respect to the return, liquidation, or transfer of specifically
    identifiable property.
        (4) Notice of bankruptcy and request for proof of customer claim.
    The trustee shall promptly notify, in accordance with paragraph (a)(2)
    of this section, each customer that an order for relief has been
    entered and instruct each customer to file a proof of customer claim
    containing the information specified in paragraph (e) of this section.
    Such notice may be given separately from any notice provided in
    accordance with paragraph (c) of this section. The trustee shall cause
    the proof of customer claim form referred to in paragraph (e) of this
    section to set forth the bar date for its filing.
        (d) Notice of court filings. The trustee shall promptly provide the
    Commission with copies of any complaint, motion, or petition filed in a
    commodity broker bankruptcy which concerns the disposition of customer
    property. Court filings shall be directed to the Commission addressed
    as provided in paragraph (a)(1) of this section.
        (e) Proof of customer claim. The trustee shall request that
    customers provide, to the extent reasonably practicable, information
    sufficient to determine a customer’s claim in accordance with the
    regulations contained in this part, including in the discretion of the
    trustee:
        (1) The class of commodity contract account upon which each claim
    is based (i.e., futures account, foreign futures account, cleared swaps
    account, or delivery account (and, in the case of a delivery account,
    how much is based on cash delivery property and how much is based on
    the value of physical delivery property);
        (2) Whether the claimant is a public customer or a non-public
    customer;
        (3) The number of commodity contract accounts held by each
    claimant, and, for each such account:
        (i) The account number;
        (ii) The name in which the account is held;
        (iii) The balance as of the last account statement for the account,
    and information regarding any activity in the account from the date of
    the last account statement up to and including the filing date that
    affected the balance of the account;
        (iv) The capacity in which the account is held;
        (v) Whether the account is a joint account and, if so, the amount
    of the claimant’s percentage interest in that account and whether
    participants in the joint account are claiming jointly or separately;
        (vi) Whether the account is a discretionary account;
        (vii) Whether the account is an individual retirement account for
    which there is a custodian; and
        (viii) Whether the account is a cross-margining account for futures
    and securities;
        (4) A description of any accounts held by the claimant with the
    debtor that are not commodity contract accounts;
        (5) A description of all claims against the debtor not based upon a
    commodity contract account of the claimant or an account listed in
    response to paragraph (e)(4) of this section;
        (6) A description of all claims of the debtor against the claimant
    not included in the balance of a commodity contract account of the
    claimant;
        (7) A description of and the value of any open positions,
    unliquidated securities, or other unliquidated property held by the
    debtor on behalf of the claimant, indicating the portion of such
    property, if any, which was included in the information provided in
    paragraph (e)(3) of this section, and identifying any such property
    which would be specifically identifiable property as defined in Sec. 
    190.01;
        (8) Whether the claimant holds positions in security futures
    products, and, if so, whether those positions are held in a futures
    account, a foreign futures account, or a securities account;
        (9) Whether the claimant wishes to receive payment in kind, to the
    extent practicable, for any claim for unliquidated securities or other
    unliquidated property; and
        (10) Copies of any documents which support the information
    contained in the proof of customer claim, including without limitation,
    customer confirmations, account statements, and statements of purchase
    or sale.
        (f) Proof of claim form. A template customer proof of claim form
    which may (but is not required to) be used by the trustee is set forth
    in appendix A to this part.
        (1) If there are no open commodity contracts that are being treated
    as specifically identifiable property (e.g., if the customer proof of
    claim form was distributed after the primary liquidation date), the
    trustee should modify the customer proof of claim form to delete
    references to open commodity contracts as specifically identifiable
    property.
        (2) In the event the trustee determines that the debtor’s books and
    records reflecting customer transactions are not reasonably reliable,
    or account statements are not available from which account balances as
    of the date of transfer or liquidation of customer property may be
    determined, the proof of claim form used by the trustee should be
    modified to take into account the particular facts and circumstances of
    the case.

    Sec.  190.04  Operation of the debtor’s estate–customer property.

        (a) Transfers–(1) All cases. The trustee for a commodity broker
    shall promptly use its best efforts to effect a transfer in accordance
    with Sec.  190.07(c) and (d) no later than the seventh calendar day
    after the order for relief of the open commodity contracts and property
    held by the commodity broker for or on behalf of its public customers.
        (2) Involuntary cases. A commodity broker against which an
    involuntary petition in bankruptcy is filed, or the trustee if a
    trustee has been appointed in such case, shall use its best efforts to
    effect a transfer in accordance with Sec.  190.07(c) and (d) of all
    open commodity contracts and property held by the commodity broker for
    or on behalf of its public customers and such other property as the
    Commission in its discretion may authorize, on or before the seventh
    calendar day after the filing

    [[Page 36084]]

    date, and immediately cease doing business; provided, however, that if
    the commodity broker demonstrates to the Commission within such period
    that it was in compliance with the segregation and financial
    requirements of this chapter on the filing date, and the Commission
    determines, in its sole discretion, that such transfer is neither
    appropriate nor in the public interest, the commodity broker may
    continue in business subject to applicable provisions of the Bankruptcy
    Code and of this chapter.
        (b) Treatment of open commodity contracts–(1) Payments by the
    trustee. Prior to the primary liquidation date, the trustee may make
    payments of initial margin and variation settlement to a clearing
    organization, commodity broker, foreign clearing organization, or
    foreign futures intermediary, carrying the account of the debtor,
    pending the transfer or liquidation of any open commodity contracts,
    whether or not such contracts are specifically identifiable property of
    a particular customer, provided, that:
        (i) To the extent within the trustee’s control, the trustee shall
    not make any payments on behalf of any commodity contract account on
    the books and records of the debtor that is in deficit; provided,
    however, that the provision in this paragraph (b)(1) shall not be
    construed to prevent a clearing organization, foreign clearing
    organization, futures commission merchant, or foreign futures
    intermediary carrying an account of the debtor from exercising its
    rights to the extent permitted under applicable law;
        (ii) Any margin payments made by the trustee with respect to a
    specific customer account shall not exceed the funded balance for that
    account;
        (iii) The trustee shall not make any payments on behalf of non-
    public customers of the debtor from funds that are segregated for the
    benefit of public customers;
        (iv) If the trustee receives payments from a customer in response
    to a margin call, then to the extent within the trustee’s control, the
    trustee must use such payments to make margin payments for the open
    commodity contract positions of such customer;
        (v) The trustee may not use payments received from one public
    customer to meet the margin (or any other) obligations of any other
    customer; and
        (vi) If funds segregated for the benefit of public customers in a
    particular account class exceed the aggregate net equity claims for all
    public customers in such account class, the trustee may use such excess
    funds to meet the margin obligations for any public customer in such
    account class whose account is undermargined (as described in paragraph
    (b)(4) of this section) but not in deficit, provided that the trustee
    issues a margin call to such customer and provided further that the
    trustee shall liquidate such customer’s open commodity contracts if the
    customer fails to make the margin payment within a reasonable time as
    provided in paragraph (b)(4) of this section.
        (2) Margin calls. The trustee (or, prior to appointment of the
    trustee, the debtor against which an involuntary petition was filed)
    may issue a margin call to any public customer whose commodity contract
    account contains open commodity contracts if such account is under-
    margined.
        (3) Margin payments by the customer. The full amount of any margin
    payment by a customer in response to a margin call under paragraph
    (b)(2) of this section must be credited to the funded balance of the
    particular account for which it was made.
        (4) Trustee obligation to liquidate certain open commodity
    contracts. The trustee shall, as soon as practicable under the
    circumstances, liquidate all open commodity contracts in any commodity
    contract account that is in deficit, or for which any mark-to-market
    calculation would result in a deficit, or for which the customer fails
    to meet a margin call made by the trustee within a reasonable time.
    Except as otherwise provided in this part, absent exigent
    circumstances, a reasonable time for meeting margin calls made by the
    trustee shall be deemed to be one hour, or such greater period not to
    exceed one business day, as the trustee may determine in its sole
    discretion.
        (5) Partial liquidation of open commodity contracts by others. In
    the event that a clearing organization, foreign clearing organization,
    futures commission merchant, foreign futures intermediary, or other
    person carrying a commodity customer account for the debtor in the
    nature of an omnibus account has liquidated only a portion of open
    commodity contracts in such account, the trustee will exercise
    reasonable business judgment in assigning the liquidating transactions
    to the underlying commodity customer accounts carried by the debtor.
    Specifically, the trustee should endeavor to assign the contracts as
    follows: First, to liquidate open commodity contracts in a risk-
    reducing manner in any accounts that are in deficit; second, to
    liquidate open commodity contracts in a risk-reducing manner in any
    accounts that are undermargined; third, to liquidate open commodity
    contracts in a risk-reducing manner in any other accounts, and finally
    to liquidate any remaining open commodity contracts in any accounts. If
    more than one commodity contract account reflects open commodity
    contracts in a particular account class for which liquidating
    transactions have been executed, the trustee shall to the extent
    practicable allocate the liquidating transactions to such commodity
    contract accounts pro rata based on the number of open commodity
    contracts of such commodity contract accounts. For purposes of this
    section, the term “a risk-reducing manner” is measured by margin
    requirements set using the margin methodology and parameters followed
    by the derivatives clearing organization at which such contracts are
    cleared.
        (c) Contracts moving to into delivery position. After entry of the
    order for relief and subject to paragraph (a) of this section, which
    requires the trustee to attempt to make transfers to other commodity
    brokers permitted by Sec.  190.07 and section 764(b) of the Bankruptcy
    Code, the trustee shall use its best efforts to liquidate any open
    commodity contract that settles upon expiration or exercise via the
    making or taking of delivery of a commodity:
        (1) If such contract is a futures contract or a cleared swaps
    contract, before the earlier of the last trading day or the first day
    on which notice of intent to deliver may be tendered with respect
    thereto, or otherwise before the debtor or its customer incurs an
    obligation to make or take delivery of the commodity under such
    contract;
        (2) If such contract is a long option on a commodity and has value,
    before the first date on which the contract could be automatically
    exercised or the last date on which the contract could be exercised if
    not subject to automatic exercise; or
        (3) If such contract is a short option on a commodity that is in-
    the-money in favor of the long position holder, before the first date
    on which the long option position could be exercised.
        (d) Liquidation or offset. After entry of the order for relief and
    subject to paragraph (a) of this section, which requires the trustee to
    attempt to make transfers to other commodity brokers permitted by Sec. 
    190.07 and section 764(b) of the Bankruptcy Code, and except as
    otherwise set forth in this paragraph (d), the following commodity
    contracts and other property held by or for the account of a debtor
    must be liquidated in the market in accordance with paragraph (e)(1) of
    this section or liquidated via book entry in accordance with paragraph
    (e)(2) of this section by

    [[Page 36085]]

    the trustee promptly and in an orderly manner:
        (1) Open commodity contracts. All open commodity contracts, except
    for–
        (i) Commodity contracts that are specifically identifiable property
    (if applicable) and are subject to customer instructions to transfer
    (in lieu of liquidating) as provided in Sec.  190.03(c)(2), provided
    that the customer is in compliance with the terms of Sec. 
    190.09(d)(2); and
        (ii) Open commodity contract positions that are in a delivery
    position, which shall be treated in accordance with the provisions of
    Sec.  190.06.
        (2) Specifically identifiable property, other than open commodity
    contracts, or physical delivery property. Specifically identifiable
    property, other than open commodity contracts or physical delivery
    property, to the extent that:
        (i) The fair market value of such property is less than 75% of its
    fair market value on the date of entry of the order for relief;
        (ii) Failure to liquidate the specifically identifiable property
    may result in a deficit balance in the applicable customer account; or
        (iii) The trustee has not received instructions to return pursuant
    to Sec.  190.03(c)(1), or has not returned such property upon the terms
    contained in Sec.  190.09(d)(1).
        (3) Letters of credit. The trustee may request that a customer
    deliver substitute customer property with respect to any letter of
    credit received, acquired or held to margin, guarantee, secure,
    purchase, or sell a commodity contract, whether the letter of credit is
    held by the trustee on behalf of the debtor’s estate or a derivatives
    clearing organization or a foreign intermediary or foreign clearing
    organization on a pass-through or other basis, including in cases where
    the letter of credit has expired since the date of the order for
    relief. The amount of the request may equal the full face amount of the
    letter of the credit or any portion thereof, to the extent required or
    may be required in the trustee’s discretion to ensure pro rata
    treatment among customer claims within each account class, consistent
    with Sec. Sec.  190.08 and 190.09.
        (i) If a customer fails to provide substitute customer property
    within a reasonable time specified by the trustee, the trustee may, if
    the letter of credit has not expired, draw upon the full amount of the
    letter of credit or any portion thereof.
        (ii) For any letter of credit referred to in this paragraph (d)(3),
    the trustee shall treat any portion that is not drawn upon (less the
    value of any substitute customer property delivered by the customer) as
    having been distributed to the customer for purposes of calculating
    entitlements to distribution or transfer. The expiration of the letter
    of credit on or at any time after the date of the order for relief
    shall not affect such calculation.
        (iii) Any proceeds of a letter of credit drawn by the trustee, or
    substitute customer property posted by a customer, shall be considered
    customer property in the account class applicable to the original
    letter of credit.
        (4) All other property. All other property, other than physical
    delivery property held for delivery in accordance with the provisions
    of Sec.  190.06, which is not required to be transferred or returned
    pursuant to customer instructions and which has not been liquidated in
    accordance with paragraphs (d)(1) through (3) of this section.
        (e) Liquidation of open commodity contracts–(1) By the trustee or
    a clearing organization in the market–(i) Debtor as a clearing member.
    For open commodity contracts cleared by the debtor as a member of a
    clearing organization, the trustee or clearing organization, as
    applicable, shall liquidate such open commodity contracts pursuant to
    the rules of the clearing organization, a designated contract market,
    or a swap execution facility, if and as applicable. Any such rules
    providing for liquidation other than on the open market shall be
    designed to achieve, to the extent feasible under market conditions at
    the time of liquidation, a process for liquidating open commodity
    contracts that results in competitive pricing. For open commodity
    contracts that are futures or options on futures that were established
    on or subject to the rules of a foreign board of trade and cleared by
    the debtor as a member of a foreign clearing organization, the trustee
    shall liquidate such open commodity contracts pursuant to the rules of
    the foreign clearing organization or foreign board of trade or, in the
    absence of such rules, in the manner the trustee determines
    appropriate.
        (ii) Debtor not a clearing member. For open commodity contracts
    submitted by the debtor for clearing through one or more accounts
    established with a futures commission merchant (as defined in Sec.  1.3
    of this chapter) or foreign futures intermediary, the trustee shall use
    commercially reasonable efforts to liquidate the open commodity
    contracts to achieve competitive pricing, to the extent feasible under
    market conditions at the time of liquidation and subject to any rules
    or orders of the relevant clearing organization, foreign clearing
    organization, designated contract market, swap execution facility, or
    foreign board of trade governing the liquidation of open commodity
    contracts.
        (2) By the trustee or a clearing organization via book entry
    offset. Upon application by the trustee or clearing organization, the
    Commission may permit open commodity contracts to be liquidated, or
    settlement on such contracts to be made, by book entry. Such book entry
    shall offset open commodity contracts, whether matched or not matched
    on the books of the commodity broker, using the settlement price for
    such commodity contracts as determined by the clearing organization in
    accordance with its rules. Such rules shall be designed to establish,
    to the extent feasible under market conditions at the time of
    liquidation, such settlement prices in a competitive manner.
        (3) By a futures commission merchant or foreign futures
    intermediary. For open commodity contracts cleared by the debtor
    through one or more accounts established with a futures commission
    merchant or a foreign futures intermediary, such futures commission
    merchant or foreign futures intermediary may exercise any enforceable
    contractual rights it has to liquidate such commodity contracts,
    provided, that it shall use commercially reasonable efforts to
    liquidate the open commodity contracts to achieve competitive pricing,
    to the extent feasible under market conditions at the time of
    liquidation and subject to any rules or orders of the relevant clearing
    organization, foreign clearing organization, designated contract
    market, swap execution facility, or foreign board of trade governing
    its liquidation of such open commodity contracts. If a futures
    commission merchant or foreign futures intermediary fails to use
    commercially reasonable efforts to liquidate open commodity contracts
    to achieve competitive pricing in accordance with this paragraph
    (e)(3), the trustee may seek damages reflecting the difference between
    the price (or prices) at which the relevant commodity contracts would
    have been liquidated using commercially reasonable efforts to achieve
    competitive pricing and the price (or prices) at which the commodity
    contracts were liquidated, which shall be the sole remedy available to
    the trustee. In no event shall any such liquidation be voided.
        (4) Liquidation only. (i) Nothing in this part shall be interpreted
    to permit the trustee to purchase or sell new

    [[Page 36086]]

    commodity contracts for the debtor or its customers except to offset
    open commodity contracts or to transfer any transferable notice
    received by the debtor or the trustee under any commodity contract;
    provided, however, that the trustee may, in its discretion and with
    approval of the Commission, cover uncovered inventory or commodity
    contracts of the debtor which cannot be liquidated immediately because
    of price limits or other market conditions, or may take an offsetting
    position in a new month or at a strike price for which limits have not
    been reached.
        (ii) Notwithstanding paragraph (e)(4)(i) of this section, the
    trustee may, with the written permission of the Commission, operate the
    business of the debtor in the ordinary course, including the purchase
    or sale of new commodity contracts on behalf of the customers of the
    debtor under appropriate circumstances, as determined by the
    Commission.
        (f) Long option contracts. Subject to paragraphs (d) and (e) of
    this section, the trustee shall use its best efforts to assure that a
    commodity contract that is a long option contract with value does not
    expire worthless.

    Sec.  190.05   Operation of the debtor’s estate–general.

        (a) Compliance with the Act and regulations in this chapter. Except
    as specifically provided otherwise in this part, the trustee shall use
    reasonable efforts to comply with all of the provisions of the Act and
    of the regulations in this chapter as if it were the debtor.
        (b) Computation of funded balance. The trustee shall use reasonable
    efforts to compute a funded balance for each customer account that
    contains open commodity contracts or other property as of the close of
    business each business day subsequent to the order for relief until the
    date all open commodity contracts and other property in such account
    have been transferred or liquidated, which shall be as accurate as
    reasonably practicable under the circumstances, including the
    reliability and availability of information.
        (c) Records–(1) Maintenance. Except as otherwise ordered by the
    court or as permitted by the Commission, records required under this
    chapter to be maintained by the debtor, including records of the
    computations required by this part, shall be maintained by the trustee
    until such time as the debtor’s case is closed.
        (2) Accessibility. The records required to be maintained by
    paragraph (c)(1) of this section shall be available during business
    hours to the Commission and the U.S. Department of Justice. The trustee
    shall give the Commission and the U.S. Department of Justice access to
    all records of the debtor, including records required to be retained in
    accordance with Sec.  1.31 of this chapter and all other records of the
    commodity broker, whether or not the Act or this chapter would require
    such records to be maintained by the commodity broker.
        (d) Customer statements. The trustee shall use all reasonable
    efforts to continue to issue account statements with respect to any
    customer for whose account open commodity contracts or other property
    is held that has not been liquidated or transferred. With respect to
    such accounts, the trustee must also issue an account statement
    reflecting any liquidation or transfer of open commodity contracts or
    other property promptly after such liquidation or transfer.
        (e) Other matters–(1) Disbursements. With the exception of
    transfers of customer property made in accordance with Sec.  190.07,
    the trustee shall make no disbursements to customers except with
    approval of the court.
        (2) Investment. The trustee shall promptly invest the proceeds from
    the liquidation of commodity contracts or specifically identifiable
    property, and may invest any other customer property, in obligations of
    the United States and obligations fully guaranteed as to principal and
    interest by the United States, provided that such obligations are
    maintained in a depository located in the United States, its
    territories or possessions.
        (f) Residual interest. The trustee shall apply the residual
    interest provisions of Sec.  1.11 of this chapter in a manner
    appropriate to the context of their responsibilities as a bankruptcy
    trustee pursuant subchapter IV of chapter 7 of the Bankruptcy Code and
    this part, and in light of the existence of a surplus or deficit in
    customer property available to pay customer claims.

    Sec.  190.06   Making and taking delivery under commodity contracts.

        (a) Deliveries–(1) General. The provisions of this paragraph (a)
    apply to commodity contracts that settle upon expiration or exercise by
    making or taking delivery of physical delivery property, if such
    commodity contracts are in a delivery position on the filing date, or
    the trustee is unable to liquidate such commodity contracts in
    accordance with Sec.  190.04(c) to prevent them from moving into a
    delivery position, i.e., before the debtor or its customer incurs
    bilateral contractual obligations to make or take delivery under such
    commodity contracts.
        (2) Delivery made or taken on behalf of a customer outside of the
    administration of the debtor’s estate. (i) The trustee shall use
    reasonable efforts to allow a customer to deliver physical delivery
    property that is held directly by the customer and not by the debtor
    (and thus not recorded in any commodity contract account of the
    customer) in settlement of a commodity contract, and to allow payment
    in exchange for such delivery, to occur outside the administration of
    the debtor’s estate, when the rules of the exchange or other market
    listing the commodity contract, or the clearing organization or the
    foreign clearing organization clearing the commodity contract, as
    applicable, prescribe a process for delivery that allows the delivery
    to be fulfilled–
        (A) In the normal course directly by the customer;
        (B) By substitution of the customer for the commodity broker; or
        (C) Through agreement of the buyer and seller to alternative
    delivery procedures.
        (ii) Where a customer delivers physical delivery property in
    settlement of a commodity contract outside of the administration of the
    debtors’ estate in accordance with paragraph (a)(2)(i) of this section,
    any property of such customer held at the debtor in connection with
    such contract must nonetheless be included in the net equity claim of
    that customer, and, as such, can only be distributed pro rata at the
    time of, and as part of, any distributions to customers made by the
    trustee.
        (3) Delivery as part of administration of the debtor’s estate. When
    the trustee determines that it is not practicable to effect delivery as
    provided in paragraph (a)(2) of this section:
        (i) To facilitate the making or taking of delivery directly by a
    customer, the trustee may, as it determines reasonable under the
    circumstances of the case and consistent with the pro rata distribution
    of customer property by account class:
        (A) When a customer is obligated to make delivery, return any
    physical delivery property to the customer that is held by the debtor
    for or on behalf of the customer under the terms set forth in Sec. 
    190.09(d)(1)(ii), to allow the customer to deliver such property to
    fulfill its delivery obligation under the commodity contract; or
        (B) When a customer is obligated to take delivery:
        (1) Return any cash delivery property to the customer that is
    reflected in the customer’s delivery account, provided that cash
    delivery property returned

    [[Page 36087]]

    under this paragraph (a)(3)(i)(B)(1) shall not exceed the lesser of–
        (i) The amount the customer is required to pay for delivery of the
    commodity; or
        (ii) The customer’s net funded balance for all of the customer’s
    commodity contract accounts; and
        (2) Return cash, securities, or other property held in the
    customer’s non-delivery commodity contract accounts, provided that
    property returned under this section shall not exceed the lesser of–
        (i) The amount the customer is required to pay for delivery of the
    commodity; or
        (ii) The net funded balance for all of the customer’s commodity
    contract accounts reduced by any amount returned to the customer
    pursuant to paragraph (a)(3)(i)(B)(1) of this section, and provided
    further, however, that the trustee may distribute such property only to
    the extent that the customer’s funded balance for each such account
    exceeds the minimum margin obligations for such account (as described
    in Sec.  190.04(b)(2)); and
        (C) Impose such conditions on the customer as it considers
    appropriate to assure that property returned to the customer is used to
    fulfill the customer’s delivery obligations.
        (ii) If the trustee does not return physical delivery property,
    cash delivery property, or other property in the form of cash or cash
    equivalents to the customer as provided in paragraph (a)(3)(i) of this
    section, subject to paragraph (a)(4) of this section:
        (A) To the extent practical, the trustee shall make or take
    delivery of physical delivery property in the same manner as if no
    bankruptcy had occurred, and when making delivery, the party to which
    delivery is made must pay the full price required for taking such
    delivery; or
        (B) When taking delivery of physical delivery property:
        (1) The trustee shall pay for the delivery first using the
    customer’s cash delivery property or other property, limited to the
    amounts set forth in paragraph (a)(3)(i)(B) of this section, along with
    any cash transferred by the customer to the trustee on or after the
    filing date for the purpose of paying for delivery.
        (2) If the value of the cash or cash equivalents that may be used
    to pay for deliveries as described in paragraph (a)(3)(i)(B) of this
    section is less than the amount required to be paid for taking
    delivery, the trustee shall issue a payment call to the customer. The
    full amount of any payment made by the customer in response to a
    payment call must be credited to the funded balance of the particular
    account for which such payment is made.
        (3) If the customer fails to meet a call for payment under
    paragraph (a)(3)(ii)(B)(2) of this section before payment is made for
    delivery, the trustee must convert any physical delivery property
    received on behalf of the customer to cash as promptly as possible.
        (4) Deliveries in a securities account. If an open commodity
    contract held in a futures account, foreign futures account, or cleared
    swaps account requires delivery of a security upon expiration or
    exercise of such commodity contract, and delivery is not completed
    pursuant to paragraph (a)(2) or (a)(3)(i) of this section, the trustee
    may make or take delivery in a securities account in a manner
    consistent with paragraph (a)(3)(ii) of this section, provided,
    however, that the trustee may transfer property from the customer’s
    commodity contract accounts to the securities account to fulfill the
    delivery obligation only to the extent that the customer’s funded
    balance for such commodity contract account exceeds the customer’s
    minimum margin obligations for such accounts (as described in Sec. 
    190.04(b)(2)) and provided further that the customer is not
    undermargined or does not have a deficit balance in any other commodity
    contract accounts.
        (5) Delivery made or taken on behalf of house account. If delivery
    of physical delivery property is to be made or taken on behalf of a
    house account of the debtor, the trustee shall make or take delivery,
    as the case may be, on behalf of the debtor’s estate, provided that if
    the trustee takes delivery of physical delivery property it must
    convert such property to cash as promptly as possible.
        (b) Special account class provisions for delivery accounts. (1)
    Within the delivery account class, the trustee shall treat–
        (i) Physical delivery property held in delivery accounts as of the
    filing date, and the proceeds of any such physical delivery property
    subsequently received, as part of the physical delivery account class;
    and
        (ii) Cash delivery property in delivery accounts as of the filing
    date, along with any physical delivery property for which delivery is
    subsequently taken on behalf of a customer in accordance with paragraph
    (a)(3) of this section, as part of a separate cash delivery account
    class.
        (2)(i) If the debtor holds any cash or cash equivalents in an
    account maintained at a bank, clearing organization, foreign clearing
    organization, or other person, under a name or in a manner that clearly
    indicates that the account holds property for the purpose of making
    payment for taking delivery, or receiving payment for making delivery,
    of a commodity under commodity contracts, such property shall (subject
    to Sec.  190.09) be considered customer property–
        (A) In the cash delivery account class if held for making payment
    for taking delivery; and
        (B) In the physical delivery account class, if held as a result of
    receiving such payment for a making delivery after the filing date.
        (ii) Any other property (excluding property segregated for the
    benefit of customer in the futures, foreign futures or cleared swaps
    account class) that is traceable as having been held or received for
    the purpose of making delivery, or as having been held or received as a
    result of taking delivery, of a commodity under commodity contracts,
    shall (subject to Sec.  190.09) be considered customer property–
        (A) In the cash delivery account class if received after the filing
    date in exchange for taking delivery; and
        (B) Otherwise shall be considered customer property in the physical
    delivery account class.

    Sec.  190.07   Transfers.

        (a) Transfer rules. No clearing organization or self-regulatory
    organization may adopt, maintain in effect, or enforce rules that:
        (1) Are inconsistent with the provisions of this part;
        (2) Interfere with the acceptance by its members of transfers of
    commodity contracts, and the property margining or securing such
    contracts, from futures commission merchants that are required to
    transfer accounts pursuant to Sec.  1.17(a)(4) of this chapter; or
        (3) Interfere with the acceptance by its members of transfers of
    commodity contracts, and the property margining or securing such
    contracts, from a futures commission merchant that is a debtor as
    defined in Sec.  190.01, if such transfers have been approved by the
    Commission, provided, however, that this paragraph (a)(3) shall not–
        (i) Limit the exercise of any contractual right of a clearing
    organization or other registered entity to liquidate or transfer open
    commodity contracts; or
        (ii) Be interpreted to limit a clearing organization’s ability
    adequately to manage risk.
        (b) Requirements for transferees. (1) It is the duty of each
    transferee to assure

    [[Page 36088]]

    that it will not accept a transfer that would cause the transferee to
    be in violation of the minimum financial requirements set forth in this
    chapter.
        (2) Any transferee that accepts a transfer of open commodity
    contracts from the estate of the debtor:
        (i) Accepts the transfer subject to any loss that may arise in the
    event the transferee cannot recover from the customer any deficit
    balance that may arise related to the transferred open commodity
    contracts.
        (ii) If the commodity contracts were held for the account of a
    customer:
        (A) Must keep such commodity contracts open at least one business
    day after their receipt, unless the customer for whom the transfer is
    made fails to respond within a reasonable time to a margin call for the
    difference between the margin transferred with such commodity contracts
    and the margin which such transferee would require with respect to a
    similar set of commodity contracts held for the account of a customer
    in the ordinary course of business; and
        (B) May not collect commissions with respect to the transfer of
    such commodity contracts.
        (3) A transferee may accept open commodity contracts and property,
    and open accounts on its records, for customers whose commodity
    contracts and property are transferred pursuant to this part prior to
    completing customer diligence, provided that account opening diligence
    as required by law is performed, and records and information required
    by law are obtained, as soon as practicable, but in any event within
    six months of the transfer, unless this time is extended for a
    particular account, transferee, or debtor by the Commission.
        (4) Any account agreements governing a transferred account
    (including an account that has been partially transferred) shall be
    deemed assigned to the transferee by operation of law and shall govern
    the transferee and customer’s relationship until such time as the
    transferee and customer enter into a new agreement; provided, however,
    that any breach of such agreement by the debtor existing at or before
    the time of the transfer (including but not limited to any failure to
    segregate sufficient customer property) shall not constitute a default
    or breach of the agreement on the part of the transferee, or constitute
    a defense to the enforcement of the agreement by the transferee.
        (5) If open commodity contracts or any specifically identifiable
    property has been, or is to be, transferred in accordance with section
    764(b) of the Bankruptcy Code and this section, customer instructions
    previously received by the trustee with respect to open commodity
    contracts or with respect to specifically identifiable property, shall
    be transmitted to the transferee of property, which shall comply
    therewith to the extent practicable.
        (c) Eligibility for transfer under section 764(b) of the Bankruptcy
    Code–accounts eligible for transfer. All commodity contract accounts
    (including accounts with no open commodity contract positions) are
    eligible for transfer after the order for relief pursuant to section
    764(b) of the Bankruptcy Code, except:
        (1) House accounts or the accounts of general partners of the
    debtor if the debtor is a partnership; and
        (2) Accounts that are in deficit.
        (d) Special rules for transfers under section 764(b) of the
    Bankruptcy Code–(1) Effecting transfer. The trustee for a commodity
    broker shall use its best efforts to effect a transfer to one or more
    other commodity brokers of all eligible commodity contract accounts,
    open commodity contracts, and property held by the debtor for or on
    behalf of its customers, based on customer claims or record, no later
    than the seventh calendar day after the order for relief.
        (2) Partial transfers; multiple transferees–(i) Of the customer
    estate. If all eligible commodity contract accounts held by a debtor
    cannot be transferred under this section, a partial transfer may
    nonetheless be made. The Commission will not disapprove such a transfer
    for the sole reason that it was a partial transfer. Commodity contract
    accounts may be transferred to one or more transferees, and, subject to
    paragraph (d)(4) of this section, may be transferred to different
    transferees by account class.
        (ii) Of a customer’s commodity contract account. If all of a
    customer’s open commodity contracts and property cannot be transferred
    under this section, a partial transfer of contracts and property may be
    made so long as such transfer would not result in an increase in the
    amount of any customer’s net equity claim. One, but not the only, means
    to effectuate a partial transfer is by liquidating a portion of the
    open commodity contracts held by a customer such that sufficient value
    is realized, or margin requirements are reduced to an extent
    sufficient, to permit the transfer of some or all of the remaining open
    commodity contracts and property. If any open commodity contract to be
    transferred in a partial transfer is part of a spread or straddle, to
    the extent practicable under the circumstances, each side of such
    spread or straddle must be transferred or none of the open commodity
    contracts comprising the spread or straddle may be transferred.
        (3) Letters of credit. A letter of credit received, acquired or
    held to margin, guarantee, secure, purchase, or sell a commodity
    contract may be transferred with an eligible commodity contract account
    if it is held by a derivatives clearing organization on a pass-through
    or other basis or is transferable by its terms, so long as the transfer
    will not result in a recovery which exceeds the amount to which the
    customer would be entitled under Sec. Sec.  190.08 and 190.09. If the
    letter of credit cannot be transferred as provided for in the foregoing
    sentence, and the customer does not deliver substitute customer
    property to the trustee in accordance with Sec.  190.04(d)(3), the
    trustee may draw upon a portion or all of the letter of credit, the
    proceeds of which shall be treated as customer property in the
    applicable account class.
        (4) Physical delivery property. The trustee shall use reasonable
    efforts to prevent physical delivery property held for the purpose of
    making delivery on a commodity contract from being transferred separate
    and apart from the related commodity contract, or to a different
    transferee.
        (5) No prejudice to other customers. No transfer shall be made
    under this part by the trustee if, after taking into account all
    customer property available for distribution to customers in the
    applicable account class at the time of the transfer, such transfer
    would result in insufficient remaining customer property to make an
    equivalent percentage distribution (including all previous transfers
    and distributions) to all customers in the applicable account class,
    based on–
        (i) Customer claims of record; and
        (ii) Estimates of other customer claims made in the trustee’s
    reasonable discretion based on available information, in each case as
    of the calendar day immediately preceding transfer.
        (e) Prohibition on avoidance of transfers under section 764(b) of
    the Bankruptcy Code–(1) Pre-relief transfers. Notwithstanding the
    provisions of paragraphs (c) and (d) of this section, the following
    transfers are approved and may not be avoided under section 544, 546,
    547, 548, 549, or 724(a) of the Bankruptcy Code:
        (i) The transfer of commodity contract accounts or customer
    property prior to the entry of the order for relief in compliance with
    Sec.  1.17(a)(4) of this chapter unless such transfer is disapproved by
    the Commission;
        (ii) The transfer, withdrawal, or settlement, prior to the order
    for relief

    [[Page 36089]]

    at the request of a public customer, including a transfer, withdrawal,
    or settlement at the request of a public customer that is a commodity
    broker, of commodity contract accounts or customer property held from
    or for the account of such customer by or on behalf of the debtor
    unless:
        (A) The customer acted in collusion with the debtor or its
    principals to obtain a greater share of customer property or the
    bankruptcy estate than that to which it would be entitled under this
    part; or
        (B) The transfer is disapproved by the Commission; or
        (iii) The transfer prior to the order for relief by a clearing
    organization, or by a receiver that has been appointed for the FCM that
    is now a debtor, of one or more accounts held for or on behalf of
    customers of the debtor, or of commodity contracts and other customer
    property held for or on behalf of customers of the debtor, provided
    that the transfer is not disapproved by the Commission.
        (2) Post-relief transfers. Notwithstanding the provisions of
    paragraphs (c) and (d) of this section, the following transfers are
    approved and may not be avoided under section 544, 546, 547, 548, 549,
    or 724(a) of the Bankruptcy Code:
        (i) The transfer of a commodity contract account or customer
    property eligible to be transferred under paragraphs (c) and (d) of
    this section made by the trustee or by any clearing organization on or
    before the seventh calendar day after the entry of the order for
    relief, as to which the Commission has not disapproved the transfer; or
        (ii) The transfer of a commodity contract account or customer
    property at the direction of the Commission on or before the seventh
    calendar day after the order for relief, upon such terms and conditions
    as the Commission may deem appropriate and in the public interest.
        (f) Commission action. Notwithstanding any other provision of this
    section (other than paragraphs (d)(2)(ii) and (d)(5) of this section),
    in appropriate cases and to protect the public interest, the Commission
    may:
        (1) Prohibit the transfer of a particular set or sets of commodity
    contract accounts and customer property; or
        (2) Permit transfers of a particular set or sets of commodity
    contract accounts and customer property that do not comply with the
    requirements of this section.

    Sec.  190.08   Calculation of allowed net equity.

        For purposes of this subpart, allowed net equity shall be computed
    as follows:
        (a) Allowed claim. The allowed net equity claim of a customer shall
    be equal to the aggregate of the funded balances of such customer’s net
    equity claim for each account class.
        (b) Net equity. Net equity means a customer’s total customer claim
    of record against the estate of the debtor based on the customer
    property, including any commodity contracts, held by the debtor for or
    on behalf of such customer less any indebtedness of the customer to the
    debtor. Net equity shall be calculated as follows:
        (1) Step 1–Equity determination. (i) Determine the equity balance
    of each commodity contract account of a customer by computing, with
    respect to such account, the sum of:
        (A) The ledger balance;
        (B) The open trade balance; and
        (C) The realizable market value, determined as of the close of the
    market on the last preceding market day, of any securities or other
    property held by or for the debtor from or for such account, plus
    accrued interest, if any.
        (ii) For the purposes of this paragraph (b)(1), the ledger balance
    of a customer account shall be calculated by:
        (A) Adding:
        (1) Cash deposited to purchase, margin, guarantee, secure, or
    settle a commodity contract;
        (2) Cash proceeds of liquidations of any securities or other
    property referred to in paragraph (b)(1)(i)(C) of this section;
        (3) Gains realized on trades; and
        (4) The face amount of any letter of credit received, acquired or
    held to margin, guarantee, secure, purchase or sell a commodity
    contract; and
        (B) Subtracting from the result:
        (1) Losses realized on trades;
        (2) Disbursements to or on behalf of the customer (including, for
    these purposes, transfers made pursuant to Sec. Sec.  190.04(a) and
    190.07); and
        (3) The normal costs attributable to the payment of commissions,
    brokerage, interest, taxes, storage, transaction fees, insurance and
    other costs and charges lawfully incurred in connection with the
    purchase, sale, exercise, or liquidation of any commodity contract in
    such account.
        (iii) For purposes of this paragraph (b)(1), the open trade balance
    of a customer’s account shall be computed by subtracting the unrealized
    loss in value of the open commodity contracts held by or for such
    account from the unrealized gain in value of the open commodity
    contracts held by or for such account.
        (iv) For purposes of this paragraph (b)(1), in calculating the
    ledger balance or open trade balance of any customer, exclude any
    security futures products, any gains or losses realized on trades in
    such products, any property received to margin, guarantee, or secure
    such products (including interest thereon or the proceeds thereof), to
    the extent any of the foregoing are held in a securities account, and
    any disbursements to or on behalf of such customer in connection with
    such products or such property held in a securities account.
        (2) Step 2–Customer determination (aggregation). Aggregate the
    credit and debit equity balances of all accounts of the same class held
    by a customer in the same capacity. Paragraphs (b)(2)(i) through (xii)
    of this section prescribe which accounts must be treated as being held
    in the same capacity and which accounts must be treated as being held
    in a separate capacity.
        (i) Except as otherwise provided in this paragraph (b)(2), all
    accounts that are maintained with a debtor in a person’s name and that,
    under this paragraph (b)(2), are deemed to be held by that person in
    its individual capacity shall be deemed to be held in the same
    capacity.
        (ii) An account maintained with a debtor by a guardian, custodian,
    or conservator for the benefit of a ward, or for the benefit of a minor
    under the Uniform Gift to Minors Act, shall be deemed to be held in a
    separate capacity from accounts held by such guardian, custodian or
    conservator in its individual capacity.
        (iii) An account maintained with a debtor in the name of an
    executor or administrator of an estate in its capacity as such shall be
    deemed to be held in a separate capacity from accounts held by such
    executor or administrator in its individual capacity.
        (iv) An account maintained with a debtor in the name of a decedent,
    in the name of the decedent’s estate, or in the name of the executor or
    administrator of such estate in its capacity as such shall be deemed to
    be accounts held in the same capacity.
        (v) An account maintained with a debtor by a trustee shall be
    deemed to be held in the individual capacity of the grantor of the
    trust unless the trust is created by a valid written instrument for a
    purpose other than avoidance of an offset under the regulations
    contained in this part. A trust account which is not deemed to be held
    in the individual capacity of its grantor under this paragraph
    (b)(2)(v) shall be deemed to be held in a separate capacity from
    accounts held in an individual capacity by the trustee, by the grantor
    or any successor in interest of the grantor, or by any trust
    beneficiary, and from accounts held by any other trust.

    [[Page 36090]]

        (vi) An account maintained with a debtor by a corporation,
    partnership, or unincorporated association shall be deemed to be held
    in a separate capacity from accounts held by the shareholders,
    partners, or members of such corporation, partnership, or
    unincorporated association, if such entity was created for purposes
    other than avoidance of an offset under the regulations contained in
    this part.
        (vii) A hedging account of a person shall be deemed to be held in
    the same capacity as a speculative account of such person.
        (viii) Subject to paragraphs (b)(2)(ix) and (xiv) of this section,
    the futures accounts, foreign futures accounts, delivery accounts, and
    cleared swaps accounts of the same person shall not be deemed to be
    held in separate capacities: provided, however, that such accounts may
    be aggregated only in accordance with paragraph (b)(3) of this section.
        (ix) An omnibus customer account of a futures commission merchant
    maintained with a debtor shall be deemed to be held in a separate
    capacity from the house account and any other omnibus customer account
    of such futures commission merchant.
        (x) A joint account maintained with the debtor shall be deemed to
    be held in a separate capacity from any account held in an individual
    capacity by the participants in such account, from any account held in
    an individual capacity by a commodity pool operator or commodity
    trading advisor for such account, and from any other joint account;
    provided, however, that if such account is not transferred in
    accordance with Sec. Sec.  190.04(a) and 190.07, it shall be deemed to
    be held in the same capacity as any other joint account held by
    identical participants and a participant’s percentage interest therein
    shall be deemed to be held in the same capacity as any account held in
    an individual capacity by such participant.
        (xi) An account maintained with a debtor in the name of a plan that
    is subject to the terms of the Employee Retirement Income Security Act
    of 1974 and the regulations in 29 CFR chapter XXV, or similar state,
    Federal, or foreign laws or regulations applicable to retirement or
    pension plans, shall be deemed to be held in a separate capacity from
    an account held in an individual capacity by the plan administrator,
    any employer, employee, participant, or beneficiary with respect to
    such plan.
        (xii) Except as otherwise provided in this section, an account
    maintained with a debtor by an agent or nominee for a principal or a
    beneficial owner shall be deemed to be an account held in the
    individual capacity of such principal or beneficial owner.
        (xiii) With respect to the cleared swaps account class, each
    individual cleared swaps customer account within each cleared swap
    omnibus customer account referred to in paragraph (b)(2)(viii) of this
    section shall be deemed to be held in a separate capacity from each
    other such individual cleared swaps customer account, subject to the
    provisions of paragraphs (b)(2)(i) through (xi) of this section.
        (xiv) Accounts held by a customer in separate capacities shall be
    deemed to be accounts of different customers. The burden of proving
    that an account is held in a separate capacity shall be upon the
    customer.
        (3) Step 3–Setoffs. (i) The net equity of one customer account may
    not be offset against the net equity of any other customer account.
        (ii) Any (x), which is the obligation to the debtor owed by a
    customer which is not required to be included in computing the equity
    of that customer under paragraph (b)(1) of this section, must be
    deducted from (y), which is any obligation to the customer owed by the
    debtor which is not required to be included in computing the equity of
    that customer. If the former amount (x) exceeds the latter (y), the
    excess (x-y) must be deducted from the equity balance of the customer
    obtained after performing the preceding calculations required by
    paragraph (b) of this section, provided, that if the customer owns more
    than one class of accounts with a positive equity balance, the excess
    (again, x-y) must be allocated and offset against each positive equity
    balance in the same proportion as that positive equity balance bears to
    the total of all positive equity balances of accounts of different
    classes held by such customer.
        (iii) A negative equity balance obtained with respect to one
    customer account class must be set off against a positive equity
    balance in any other account class of such customer held in the same
    capacity, provided, that if a customer owns more than one class of
    accounts with a positive equity balance, such negative equity balance
    must be offset against each positive equity balance in the same
    proportion as that positive equity balance bears to the total of all
    positive equity balances in accounts of different classes held by such
    customer.
        (iv) To the extent any indebtedness of the debtor to the customer
    which is not required to be included in computing the equity of such
    customer under paragraph (b)(1) of this section exceeds such
    indebtedness of the customer to the debtor, the customer claim therefor
    will constitute a general creditor claim rather than a customer
    property claim, and the net equity therefor shall be separately
    calculated.
        (v) The rules pertaining to separate capacities and permitted
    setoffs contained in this section shall only be applied subsequent to
    the entry of an order for relief; prior to that date, the provisions of
    Sec.  1.22 of this chapter and of sections 4d(a)(2) and 4d(f) of the
    Act (and, in each case, the regulations in part 1, 22, or 30 of this
    chapter that implement sections 4d(a)(2) and 4d(f)) shall govern what
    setoffs are permitted.
        (4) Step 4–Correction for distributions. The value on the date of
    transfer or distribution of any property transferred or distributed
    subsequent to the filing date and prior to the primary liquidation date
    with respect to each class of account held by a customer must be added
    to the equity obtained for that customer for accounts of that class
    after performing the steps contained in paragraphs (b)(1) through (3)
    of this section: Provided, however, that if all accounts for which
    there are customer claims of record and 100% of the equity pertaining
    thereto is transferred in accordance with Sec.  190.07 and section
    764(b) of the Bankruptcy Code, net equity shall be computed based
    solely upon those allowed customer claims, if any, filed subsequent to
    the order for relief which are not claims of record on the filing date.
        (5) Step 5–Correction for ongoing events. Compute any adjustments
    to the steps in paragraphs (b)(1) through (4) of this section required
    to correct misestimates or errors including, without limitation,
    corrections for ongoing events such as the liquidation of unliquidated
    claims or specifically identifiable property at a value different from
    the estimated value previously used in computing net equity.
        (c) Calculation of funded balance. Funded balance means a
    customer’s pro rata share of the customer estate with respect to each
    account class available for distribution to customers of the same
    customer class.
        (1) Funded balance computation. The funded balance of any customer
    claim shall be computed (separately by account class and customer
    class) by:
        (i) Multiplying the ratio of (x), which is the amount of the net
    equity claim of such customer, less (y), which is the amounts referred
    to in paragraph (c)(1)(ii) of this section of such customer for any
    account class divided, by (p), which is the sum of the net equity
    claims of all customers for accounts of that class, less (q), which is
    the amounts referred to in paragraph (c)(1)(ii) of this

    [[Page 36091]]

    section of all customers for accounts of that class, (thus, ((x-y)/(p-
    q)) by the sum of:
        (A) The value of letters of credit received, acquired or held to
    margin, guarantee, secure, purchase or sell a commodity contract
    relating to all customer accounts of the same class;
        (B) The value of the money, securities, or other property
    segregated on behalf of all customer accounts of the same class less
    the amounts referred to in paragraph (c)(1)(ii) of this section;
        (C) The value of any money, securities, or other property which
    must be allocated under Sec.  190.09 to all customer accounts of the
    same class; and
        (D) The amount of any add-back required under paragraph (b)(4) of
    this section; and
        (ii) Then adding 100% of any margin payment made between the entry
    of the order for relief (or, in an involuntary case, the date on which
    the petition for bankruptcy is filed) and the primary liquidation date;
    provided, however, that if margin is posted to substitute for a letter
    of credit, such margin does not increase the funded balance.
        (2) Corrections to funded balance. The funded balance must be
    adjusted to correct for ongoing events including, without limitation:
        (i) Added claimants;
        (ii) Disallowed claims;
        (iii) Liquidation of unliquidated claims at a value other than
    their estimated value; and
        (iv) Recovery of property.
        (d) Valuation. In computing net equity, commodity contracts and
    other property held by or for a commodity broker must be valued as
    provided in this paragraph (d).
        (1) Commodity contracts–(i) Open contracts. Unless otherwise
    specified in this paragraph (d), the value of an open commodity
    contract shall be equal to the settlement price as calculated by the
    clearing organization pursuant to its rules; provided, however, that if
    an open commodity contract is transferred to another commodity broker,
    its value on the debtor’s books and records shall be determined as of
    the end of the last settlement cycle on the day preceding such
    transfer.
        (ii) Liquidated contracts. Except as specified in paragraphs
    (d)(1)(ii)(A) and (B) of this section, the value of a commodity
    contract liquidated on the open market shall equal the actual value
    realized on liquidation of the commodity contract.
        (A) Weighted average. If identical commodity contracts are
    liquidated within a 24-hour period or business day (or such other
    period as the bankruptcy court may determine is appropriate) as part of
    a general liquidation of commodity contracts, but cannot be liquidated
    at the same price, the trustee may use the weighted average of the
    liquidation prices in computing the net equity of each customer for
    which the debtor held such commodity contracts.
        (B) Bulk liquidation. The value of a commodity contract liquidated
    as part of a bulk auction, taken into inventory or under management by
    a clearing organization, or similarly liquidated outside of the open
    market shall be equal to the settlement price calculated by the
    clearing organization as of the end of the settlement cycle during
    which the commodity contract was liquidated.
        (2) Securities. The value of a listed security shall be equal to
    the closing price for such security on the exchange upon which it is
    traded. The value of all securities not traded on an exchange shall be
    equal in the case of a long position, to the average of the bid prices
    for long positions, and in the case of a short position, to the average
    of the asking prices for the short positions. If liquidated, the value
    of such security shall be equal to the actual value realized on
    liquidation of the security; provided, however, that if identical
    securities are liquidated within a 24-hour period or business day (or
    such other period as the bankruptcy court may determine is appropriate)
    as part of a general liquidation of securities, but cannot be
    liquidated at the same price, the trustee may use the weighted average
    of the liquidation prices in computing the net equity of each customer
    for which the debtor held such securities. Securities which are not
    publicly traded shall be valued by the trustee pursuant to paragraph
    (d)(5) of this section.
        (3) Commodities held in inventory. Commodities held in inventory,
    as collateral or otherwise, shall be valued at their fair market value.
    If such fair market value is not readily ascertainable based upon
    public sources of prices, the trustee shall value such commodities
    pursuant to paragraph (d)(5) of this section.
        (4) Letters of credit. The value of any letter of credit received,
    acquired or held to margin, guarantee, secure, purchase or sell a
    commodity contract shall be its face amount, less the amount, if any,
    drawn and outstanding, provided that, if the trustee makes a
    determination in good faith that a draw on a letter of credit is
    unlikely to be honored on either temporary or permanent basis, the
    trustee shall value the letter of credit pursuant to paragraph (d)(5)
    of this section.
        (5) All other property. Subject to the other provisions of this
    paragraph (d), all other property shall be valued by the trustee using
    such professional assistance as the trustee deems necessary in its sole
    discretion under the circumstances; provided, however, that if such
    property is sold, its value for purposes of the calculations required
    by this part shall be equal to the actual value realized on the sale of
    such property; and, provided further, that the sale shall be made in
    compliance with all applicable statutes, rules, and orders of any court
    or governmental entity with jurisdiction there over.

    Sec.  190.09   Allocation of property and allowance of claims.

        The property of the debtor’s estate must be allocated among account
    classes and between customer classes as provided in this section.
    (Property connected with certain cross-margining arrangements is
    subject to the provisions of framework 1 in appendix B to this part.)
    The property so allocated will constitute a separate estate of the
    customer class and the account class to which it is allocated, and will
    be designated by reference to such customer class and account class.
        (a) Scope of customer property. (1) Customer property includes the
    following:
        (i) All cash, securities, or other property or the proceeds of such
    cash, securities, or other property received, acquired, or held by or
    for the account of the debtor, from or for the account of a customer,
    including a non-public customer, which is:
        (A) Property received, acquired or held to margin, guarantee,
    secure, purchase or sell a commodity contract;
        (B) Open commodity contracts;
        (C) Physical delivery property as that term is defined in
    paragraphs (1) through (3) in the definition of that term in Sec. 
    190.01;
        (D) Cash delivery property, or other cash, securities or other
    property received by the debtor as payment for a commodity to be
    delivered to fulfill a commodity contract from or for the commodity
    customer account of a customer;
        (E) Profits or contractual rights accruing to a customer as the
    result of a commodity contract;
        (F) Letters of credit, including any proceeds of a letter of credit
    drawn by the trustee, or substitute customer property posted by the
    customer, pursuant to Sec.  190.04(d)(3);
        (G) Securities held in a portfolio margining account carried as a
    futures account or a cleared swaps customer account; or

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        (H) Property hypothecated under Sec.  1.30 of this chapter to the
    extent that the value of such property exceeds the proceeds of any loan
    of margin made with respect thereto; and
        (ii) All cash, securities, or other property which:
        (A) Is segregated for customers on the filing date;
        (B) Is a security owned by the debtor to the extent there are
    customer claims for securities of the same class and series of an
    issuer;
        (C) Is specifically identifiable to a customer;
        (D) Was property of a type described in paragraph (a)(1)(i)(A) of
    this section that is subsequently recovered by the avoidance powers of
    the trustee or is otherwise recovered by the trustee on any other claim
    or basis;
        (E) Represents recovery of any debit balance, margin deficit, or
    other claim of the debtor against a customer;
        (F) Was unlawfully converted but is part of the debtor’s estate;
        (G) Constitutes current assets of the debtor (as of the date of the
    order for relief) within the meaning of Sec.  1.17(c)(2) of this
    chapter, including the debtor’s trading or operating accounts and
    commodities of the debtor held in inventory, in the greater of–
        (1) The amount that the debtor is obligated to set aside as its
    targeted residual interest amount pursuant to Sec.  1.11 of this
    chapter and the debtor’s residual interest policies adopted thereunder,
    with respect to each of the futures account class, the foreign futures
    account class, and the cleared swaps account class; or
        (2) The debtor’s obligations to cover debit balances or under-
    margined amounts as provided in Sec. Sec.  1.20, 1.22, 22.2 and 30.7 of
    this chapter;
        (H) Is other property of the debtor that any applicable law, rule,
    regulation, or order requires to be set aside for the benefit of
    customers;
        (I) Is property of the debtor’s estate recovered by the Commission
    in any proceeding brought against the principals, agents, or employees
    of the debtor;
        (J) Is proceeds from the investment of customer property by the
    trustee pending final distribution;
        (K) Is a payment from an insurer to the trustee arising from or
    related to a claim related to the conversion or misuse of customer
    property; or
        (L) Is cash, securities or other property of the debtor’s estate,
    including the debtor’s trading or operating accounts and commodities of
    the debtor held in inventory, but only to the extent that the property
    enumerated in paragraphs (a)(1)(i)(F) and (a)(1)(ii)(A) through (K) of
    this section is insufficient to satisfy in full all claims of public
    customers. Such property includes “customer property,” as defined in
    section 16(4) of SIPA, 15 U.S.C. 78lll(4), that remains after
    allocation in accordance with section 8(c)(1)(A) through (D) of SIPA,
    15 U.S.C. 78fff-2(c)(1)(A) through (D) and that is allocated to the
    debtor’s general estate in accordance with section 8(c)(1) of SIPA, 15
    U.S.C. 78fff-2(c)(1).
        (2) Customer property will not include:
        (i) Claims against the debtor for damages for any wrongdoing of the
    debtor, including claims for misrepresentation or fraud, or for any
    violation of the Act or of the regulations in this chapter;
        (ii) Other claims for property which are not based upon property
    received, acquired, or held by or for the account of the debtor, from
    or for the account of the customer;
        (iii) Forward contracts (unless such contracts are cleared by a
    clearing organization or, in the case of forward contracts treated as
    foreign futures, a foreign clearing organization);
        (iv) Physical delivery property that is not held by the debtor, and
    is delivered or received by a customer in accordance with Sec. 
    190.06(a)(2) or Sec.  190.16(a) to fulfill the customer’s delivery
    obligation under a commodity contract;
        (v) Property deposited by a customer with a commodity broker after
    the entry of an order for relief which is not necessary to meet the
    margin requirements applicable to the accounts of such customer;
        (vi) Property hypothecated pursuant to Sec.  1.30 of this chapter
    to the extent of the loan of margin with respect thereto;
        (vii) Money, securities, or property held to margin, guarantee, or
    secure security futures products, or accruing as a result of such
    products, if held in a securities account; and
        (viii) Money, securities or property held in a securities account
    to fulfill delivery, under a commodity contract from or for the account
    of a customer, as described in Sec.  190.06(b)(2).
        (3) Nothing contained in this section, including, but not limited
    to, the satisfaction of customer claims by operation of this section,
    shall prevent a trustee from asserting claims against any person to
    recover the shortfall of property enumerated in paragraphs (a)(1)(i)(F)
    and (a)(1)(ii)(A) through (L) of this section.
        (b) Allocation of customer property between customer classes. No
    customer property may be allocated to pay non-public customer claims
    until all public customer claims have been satisfied in full. Any
    property segregated on behalf of or attributable to non-public
    customers must be treated initially as part of the public customer
    estate and allocated in accordance with paragraph (c)(2) of this
    section.
        (c) Allocation of customer property among account classes–(1)
    Property identified to an account class–(i) Segregated property.
    Subject to paragraph (b) of this section, property held by or for the
    account of a customer, which is segregated on behalf of a specific
    account class, or readily traceable on the filing date to customers of
    such account class, or recovered by the trustee on behalf of or for the
    benefit of an account class, must be allocated to the customer estate
    of the account class for which it is segregated, to which it is readily
    traceable, or for which it is recovered.
        (ii) Excess property. If, after payment in full of all allowed
    customer claims in a particular account class, any property remains
    allocated to that account class, such excess shall be allocated in
    accordance with paragraph (c)(2) of this section.
        (2) All other property. Money, securities, and property received
    from or for the account of customers which cannot be allocated in
    accordance with paragraph (c)(1)(i) of this section, must be allocated
    in the following order:
        (i) To the estate of the account class for which, after the
    allocation required in paragraph (c)(1) of this section, the percentage
    of each public customer net equity claim which is funded is the lowest,
    until the funded percentage of net equity claims of such class equals
    the percentage of each public customer’s net equity claim which is
    funded for the account class with the next lowest percentage of the
    funded claims; and
        (ii) Then to the estate of the two account classes referred to in
    paragraph (c)(2)(i) of this section so that the percentage of the net
    equity claims which are funded for each class remains equal until the
    percentage of each public customer net equity claim which is funded
    equals the percentage of each public customer net equity claim which is
    funded for the account class with the next lowest percentage of funded
    claims, and so forth, until the percentage of each public customer net
    equity claim which is funded is equal for all classes of accounts; and
        (iii) Then among account classes in the same proportion as the
    public customer net equity claims for each such account class bears to
    the total of public customer net equity claims of all account classes
    until the public customer claims of each account class are paid in
    full; and

    [[Page 36093]]

        (iv) Thereafter to the non-public customer estate for each account
    class in the same order as is prescribed in paragraphs (c)(2)(i)
    through (iii) of this section for the allocation of the customer estate
    among account classes.
        (d) Distribution of customer property–(1) Return or transfer of
    specifically identifiable property. Specifically identifiable property
    not required to be liquidated under Sec.  190.04(d)(2) may be returned
    or transferred on behalf of the customer to which it is identified:
        (i) If it is margining an open commodity contract, only if
    substitute customer property is first deposited with the trustee with a
    value equal to the greater of the full fair market value of such
    property on the return date or the balance due on the return date on
    any loan by the debtor to the customer for which such property
    constitutes security; or
        (ii) If it is not margining an open commodity contract, at the
    option of the customer, either pursuant to the terms of paragraph
    (d)(1)(i) of this section, or pursuant to the following terms: Such
    customer first deposits substitute customer property with the trustee
    with a value equal to the amount by which the greater of the value of
    the specifically identifiable property to be transferred or returned on
    the date of such transfer or return or the balance due on the return
    date on any loan by the debtor to the customer for which such property
    constitutes security, together with any other disbursements made, or to
    be made, to such customer, plus a reasonable reserve in the trustee’s
    sole discretion, exceeds the estimated aggregate of the funded balances
    for each class of account of such customer less the value on the date
    of its transfer or return of any property transferred or returned prior
    to the primary liquidation date with respect to the customer’s net
    equity claim for such account; provided, however, that adequate
    security to assure the recovery of any overpayments by the trustee is
    provided to the debtor’s estate by the customer.
        (2) Transfers of specifically identifiable commodity contracts
    under section 766 of the Bankruptcy Code. Any open commodity contract
    that is specifically identifiable property and which is not required to
    be liquidated under Sec.  190.04(d), and which is not otherwise
    liquidated, may be transferred on behalf of a public customer,
    provided, however, that such customer must first deposit substitute
    customer property with the trustee with a value equal to the amount by
    which the equity to be transferred to margin such contract together
    with any other transfers or returns of specifically identifiable
    property or disbursements made, or to be made, to such customer, plus a
    reasonable reserve in the trustee’s sole discretion, exceeds the
    estimated aggregate of the funded balances for each class of account of
    such customer less the value on the date of its transfer or return of
    any property transferred or returned prior to the primary liquidation
    date with respect to the customer’s net equity claim for such account;
    and, provided further, that adequate security to assure the recovery of
    any overpayments by the trustee is provided to the debtor’s estate by
    the customer.
        (3) Distribution in kind of specifically identifiable securities.
    If any securities of a customer are specifically identifiable property
    as defined in paragraph (1)(i)(A) of the definition of that term in
    Sec.  190.01, but the customer has no open commodity contracts, the
    customer may request that the trustee purchase or otherwise obtain the
    largest whole number of like-kind securities (i.e., securities of the
    same class and series of an issuer), with a fair market value
    (inclusive of transaction costs) which does not exceed that portion of
    such customer’s allowed net equity claim that constitutes a claim for
    securities, if like-kind securities can be purchased in a fair and
    orderly manner.
        (4) Proof of customer claim. No distribution shall be made pursuant
    to paragraphs (d)(1) and (3) of this section prior to receipt of a
    completed proof of customer claim as described in Sec.  190.03(e) or
    (f).
        (5) No differential distributions. No further disbursements may be
    made to customers with respect to a particular account class for whom
    transfers have been made pursuant to Sec.  190.07 and paragraph (d)(2)
    of this section, until a percentage of each net equity claim equivalent
    to the percentage distributed to such customers is distributed to all
    public customers in such account class. Partial distributions, other
    than the transfers referred to in Sec.  190.07 and paragraph (d)(2) of
    this section, with respect to a particular account class made prior to
    the final net equity determination date must be made pursuant to a
    preliminary plan of distribution approved by the court, upon notice to
    the parties and to all customers, which plan requires adequate security
    to the debtor’s estate to assure the recovery of any overpayments by
    the trustee and distributes an equal percentage of net equity to all
    public customers in such account class.

    Sec.  190.10   Provisions applicable to futures commission merchants
    during business as usual.

        (a) Current records. A person that is a futures commission merchant
    is required to maintain current records relating to its customers’
    accounts, including copies of all account agreements and related
    account documentation, and “know your customer” materials, pursuant
    to Sec. Sec.  1.31, 1.35, 1.36, and 1.37 of this chapter, which may be
    provided to another futures commission merchant to facilitate the
    transfer of open commodity contracts or other customer property held by
    such person for or on behalf of its customers to the other futures
    commission merchant, in the event an order for relief is entered with
    respect to such person.
        (b) Designation of hedging accounts. (1) A futures commission
    merchant must provide an opportunity to each customer, when it first
    opens a futures account, foreign futures account or cleared swaps
    account with such futures commission merchant, to designate such
    account as a hedging account. The futures commission merchant must
    indicate prominently in the accounting records in which it maintains
    open trade balances whether, for each customer account, the account is
    designated as a hedging account.
        (2) A futures commission merchant may permit the customer to open
    an account as a hedging account only if it obtains the customer’s
    written representation that the customer’s trading of futures or
    options on futures, foreign futures or options on foreign futures, or
    cleared swaps (as applicable) in the account constitutes hedging as
    such term may be defined under any relevant Commission regulation or
    rule of any clearing organization, designated contract market, swap
    execution facility, or foreign board of trade.
        (3) The requirements set forth in paragraphs (b)(1) and (2) of this
    section do not apply to a futures commission merchant with respect to
    any commodity contract account that the futures commission merchant
    opened prior to [EFFECTIVE DATE OF FINAL RULE]. The futures commission
    merchant may continue to designate as a hedging account any account
    with respect to which the futures commission merchant received written
    hedging instructions from the customer in accordance with Sec. 
    190.06(d) as contained in 17 CFR part 190 revised as of April 1, 2020.
        (4) A futures commission merchant may designate an existing futures
    account, foreign futures account, or cleared swaps account of a
    particular

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    customer as a hedging account, provided that it has obtained the
    representation set out in paragraph (b)(2) of this section from such
    customer.
        (c) Delivery accounts. In connection with the making or taking of
    delivery of a commodity under a commodity contract whose terms require
    settlement via physical delivery, if a futures commission merchant
    facilitates or effects the transfer of the physical delivery property
    and payment therefor on behalf of the customer, and does so outside the
    futures account, foreign futures account, or cleared swaps account in
    which the commodity contract was held, the futures commission merchant
    must do so in a delivery account, provided, however, that when the
    commodity subject to delivery is a security, a futures commission
    merchant may, consistent with any applicable regulatory requirements,
    do so in a securities account.
        (d) Letters of credit. A futures commission merchant shall not
    accept a letter of credit as collateral unless such letter of credit
    may be exercised, through its stated date of expiry, under the
    following conditions, regardless of whether the customer posting that
    letter of credit is in default in any obligation:
        (1) In the event that an order for relief under chapter 7 of the
    Bankruptcy Code or a protective decree pursuant to section 5(b)(1) of
    SIPA is entered with respect to the futures commission merchant, or if
    the FDIC is appointed as receiver for the futures commission merchant
    pursuant to 12 U.S.C. 5382(a), the trustee for that futures commission
    merchant (or, as applicable, FDIC) may draw upon such letter of credit,
    in full or in part, in accordance with Sec.  190.04(d)(3).
        (2) If the letter of credit is passed through to a clearing
    organization, then in the event that an order for relief under chapter
    7 of the Bankruptcy Code is entered with respect to the clearing
    organization, or if the FDIC is appointed as receiver for the clearing
    organization pursuant to 12 U.S.C. 5382(a), the trustee for that
    clearing organization (or, as applicable, FDIC) may draw upon such
    letter of credit, in full or in part, in accordance with Sec. 
    190.04(d)(3). A futures commission merchant shall not accept a letter
    of credit from a customer as collateral if it has any agreement with
    the customer that is inconsistent with the foregoing.
        (e) Disclosure statement for non-cash margin. (1) Except as
    provided in Sec.  1.65 of this chapter, no commodity broker (other than
    a clearing organization) may accept property other than cash from or
    for the account of a customer, other than a customer specified in Sec. 
    1.55(f) of this chapter, to margin, guarantee, or secure a commodity
    contract unless the commodity broker first furnishes the customer with
    the disclosure statement set forth in paragraph (e)(2) of this section
    in boldface print in at least 10 point type which may be provided as
    either a separate, written document or incorporated into the customer
    agreement, or with another statement approved under Sec.  1.55(c) of
    this chapter and set forth in appendix A to Sec.  1.55 which the
    Commission finds satisfies this requirement.
        (2) The disclosure statement required by paragraph (e)(1) of this
    section

        THIS STATEMENT IS FURNISHED TO YOU BECAUSE Sec.  190.10(e) OF
    THE COMMODITY FUTURES TRADING COMMISSION REQUIRES IT FOR REASONS OF
    FAIR NOTICE UNRELATED TO THIS COMPANY’S CURRENT FINANCIAL CONDITION.
        1. YOU SHOULD KNOW THAT IN THE UNLIKELY EVENT OF THIS COMPANY’S
    BANKRUPTCY, PROPERTY, INCLUDING PROPERTY SPECIFICALLY TRACEABLE TO
    YOU, WILL BE RETURNED, TRANSFERRED OR DISTRIBUTED TO YOU, OR ON YOUR
    BEHALF, ONLY TO THE EXTENT OF YOUR PRO RATA SHARE OF ALL PROPERTY
    AVAILABLE FOR DISTRIBUTION TO CUSTOMERS.
        2. THE COMMISSION’S REGULATIONS CONCERNING BANKRUPTCIES OF
    COMMODITY BROKERS CAN BE FOUND AT 17 CODE OF FEDERAL REGULATIONS
    PART 190.

        (3) The statement contained in paragraph (e)(2) of this section
    need be furnished only once to each customer to whom it is required to
    be furnished by this section.

    Subpart C–Clearing Organization as Debtor

    Sec.  190.11   Scope and purpose of this subpart.

        This subpart applies to a proceeding commenced under subchapter IV
    of chapter 7 of the Bankruptcy Code in which the debtor is a clearing
    organization.

    Sec.  190.12   Required reports and records.

        (a) Notices–(1) Notices–means of providing–(i) To the
    Commission. Unless instructed otherwise by the Commission, all
    mandatory or discretionary notices to be given to the Commission under
    this subpart shall be directed by electronic mail to
    [email protected]. For purposes of this subpart, notice to the
    Commission shall be deemed to be given only upon actual receipt.
        (ii) To members. The trustee, after consultation with the
    Commission, and unless otherwise instructed by the Commission, will
    establish and follow procedures reasonably designed for giving adequate
    notice to members under this subpart and for receiving claims or other
    notices from members. Such procedures should include, absent good cause
    otherwise, the use of a prominent website as well as communication to
    members’ electronic addresses that are available in the debtor’s books
    and records.
        (2) Of commencement of a proceeding. A debtor that files a petition
    in bankruptcy that is subject to this subpart shall, at or before the
    time of such filing, and a debtor against which such a petition is
    filed shall, as soon as possible, but in any event no later than three
    hours after the receipt of notice of such filing, notify the Commission
    of the filing date, the court in which the proceeding has been or will
    be filed, and, as soon as available, the docket number assigned to that
    proceeding by the court.
        (b) Reports and records to be provided to the trustee and the
    Commission within three hours. (1) As soon as practicable following the
    commencement of a proceeding that is subject to this subpart and in any
    event no later than three hours following the later of the commencement
    of such proceeding or the appointment of the trustee, the debtor shall
    provide to the trustee copies of each of the most recent reports that
    the debtor was required to file with the Commission under Sec. 
    39.19(c) of this chapter, including copies of any reports required
    under Sec.  39.19(c)(2), (3), and (4) of this chapter (including the
    most up-to-date version of any recovery and wind-down plans of the
    debtor maintained pursuant to Sec.  39.39(b) of this chapter) that the
    debtor filed with the Commission during the preceding 12 months.
        (2) As soon as practicable following the commencement of a
    proceeding that is subject to this subpart and in any event no later
    than three hours following the commencement of such proceeding (or,
    with respect to the trustee, the appointment of the trustee), the
    debtor shall provide to the trustee and the Commission copies of the
    most up-to-date versions of the default management plan and default
    rules and procedures maintained by the debtor pursuant to Sec. Sec. 
    39.16 and, as applicable, 39.35 of this chapter.
        (c) Records to be provided to the trustee and the Commission by the
    next business day. As soon as practicable following commencement of a
    proceeding that is subject to this subpart and in any event no later
    than the next business day, the debtor shall make

    [[Page 36095]]

    available to the trustee and the Commission copies of the following
    records:
        (1) All records maintained by the debtor described in Sec. 
    39.20(a) of this chapter; and
        (2) Any opinions of counsel or other legal memoranda provided to
    the debtor (whether by external or internal counsel) in the five years
    preceding the commencement of such proceeding relating to the
    enforceability of the rules and procedures of the debtor in the event
    of an insolvency proceeding involving the debtor.

    Sec.  190.13   Prohibition on avoidance of transfers.

        The following transfers are approved and may not be avoided under
    section 544, 546, 547, 548, 549, or 724(a) of the Bankruptcy Code:
        (a) Pre-relief transfers. Any transfer of open commodity contracts
    and the property margining or securing such contracts made to another
    clearing organization that was approved by the Commission, either
    before or after such transfer, and was made prior to entry of the order
    for relief; and
        (b) Post-relief transfers. Any transfers of open commodity
    contracts and the property margining or securing such contracts made to
    another clearing organization on or before the seventh calendar day
    after the entry of the order for relief, that was made with the
    approval of the Commission, either before or after such transfer.

    Sec.  190.14   Operation of the estate of the debtor subsequent to the
    filing date.

        (a) Proofs of claim. The trustee may, in its discretion based upon
    the facts and circumstances of the case, instruct each customer to file
    a proof of claim containing such information as is deemed appropriate
    by the trustee, and seek a court order establishing a bar date for the
    filing of such proofs of claim.
        (b) Continued operation of the derivatives clearing organization.
    (1) Subsequent to the order for relief, the derivatives clearing
    organization shall cease making calls for variation or initial margin,
    except as otherwise explicitly provided in this paragraph (b).
        (2) If the trustee believes that continued operation of the
    derivatives clearing organization on a temporary basis would:
        (i) Facilitate either–
        (A) Prompt transfer of the clearing operations of the derivatives
    clearing organization to another derivatives clearing organization; or
        (B) Resolution of the derivatives clearing organization pursuant to
    title II of the Dodd-Frank Wall Street Reform and Consumer Protection
    Act; and
        (ii) Be practicable, in the sense that–
        (A) The rules of the derivatives clearing organization do not
    compel the termination of all or substantially all of the outstanding
    contracts under the circumstances then prevailing (e.g., upon the order
    for relief); and
        (B) All or substantially all of the members of the derivatives
    clearing organization (other than those who are themselves subject to a
    bankruptcy proceeding) would be able to, and would in fact, make
    variation payments as owed during the temporary timeframe, then the
    trustee may request permission of the Commission to continue to operate
    the derivatives clearing organization for up to six calendar days after
    the order for relief to the extent practicable and in accordance with
    the rules and procedures of the debtor, with respect to open commodity
    contracts of the debtor.
        (3) Upon receiving a request pursuant to paragraph (b)(2) of this
    section, the Commission shall proceed promptly to consider the request
    and, if it is persuaded that the trustee’s conclusions with respect to
    paragraphs (b)(2)(i) and (ii) of this section are well grounded, may
    grant the trustee’s request. Such grant may be for fewer calendar days
    than the trustee has requested, but then may be renewed at the
    Commission’s discretion so long as the calendar days of continued
    operation total no more than six.
        (c) Liquidation. (1) The trustee shall liquidate all open commodity
    contracts that have not been terminated, liquidated, or transferred no
    later than seven calendar days after entry of the order for relief,
    unless the Commission determines that liquidation would be inconsistent
    with the avoidance of systemic risk or would not be in the best
    interests of the debtor’s estate. Such liquidation of open commodity
    contracts shall be conducted in accordance with the rules and
    procedures of the debtor, to the extent applicable and practicable.
        (2) In lieu of liquidating securities held by the debtor and making
    distributions in the form of cash, the trustee may, in its reasonable
    discretion, make distributions in the form of securities that are
    equivalent (i.e., securities of the same class and series of an issuer)
    to the securities originally delivered to the debtor by a clearing
    member or such clearing member’s customer.
        (d) Computation of funded balance. The trustee shall use reasonable
    efforts to compute a funded balance for each customer account
    immediately prior to any distribution of property within the account,
    which shall be as accurate as reasonably practicable under the
    circumstances, including the reliability and availability of
    information.

    Sec.  190.15   Recovery and wind-down plans; default rules and
    procedures.

        (a) Prohibition on avoidance of actions taken pursuant to recovery
    and wind-down plans. Subject to the provisions of section 766 of the
    Bankruptcy Code and Sec. Sec.  190.13 and 190.18, the trustee shall not
    avoid or prohibit any action taken by a debtor subject to this subpart
    that was reasonably within the scope of and was provided for in any
    recovery and wind-down plans maintained by the debtor and filed with
    the Commission pursuant to Sec.  39.39 of this chapter.
        (b) Implementation of debtor’s default rules and procedures. In
    administering a proceeding under this subpart, the trustee shall
    implement, in consultation with the Commission, the default rules and
    procedures maintained by the debtor under Sec. Sec.  39.16 and, as
    applicable, 39.35 of this chapter and any termination, close-out and
    liquidation provisions included in the rules of the debtor, subject to
    the reasonable discretion of the trustee and to the extent that
    implementation of such default rules and procedures is practicable.
        (c) Implementation of recovery and wind-down plans. In
    administering a proceeding under this subpart, the trustee shall, in
    consultation with the Commission, take actions in accordance with any
    recovery and wind-down plans maintained by the debtor and filed with
    the Commission pursuant to Sec.  39.39 of this chapter, to the extent
    reasonable and practicable.

    Sec.  190.16   Delivery.

        (a) General. In the event that a commodity contract, cleared by the
    derivatives clearing organization (DCO), that settles upon expiration
    or exercise by making or taking delivery of physical delivery property,
    has moved into delivery position prior to the date and time of the
    order for relief, the trustee must use reasonable efforts to facilitate
    and cooperate with the completion of delivery on behalf of the clearing
    member or the clearing member’s customer in a manner consistent with
    Sec.  190.06(a) and the pro rata distribution principle addressed in
    Sec.  190.00(c)(5).
        (b) Special provisions for delivery accounts. (1) Consistent with
    the separation of the physical delivery property account class and the
    cash delivery account class set forth in Sec.  190.06(b), the trustee
    shall treat–

    [[Page 36096]]

        (i) Physical delivery property held in delivery accounts as of the
    filing date, along with the proceeds from any subsequent sale of such
    physical delivery property in accordance with Sec.  190.06(a)(3) to
    fulfill a clearing member’s or its customer’s delivery obligation or
    any other subsequent sale of such property, as part of the physical
    delivery account class; and
        (ii) Cash delivery property in delivery accounts as of the filing
    date, along with any physical delivery property for which delivery is
    subsequently taken on behalf of a clearing member or its customer in
    accordance with Sec.  190.06(a)(3), as part of the separate cash
    delivery account class.
        (2) If the debtor holds any cash or property in the form of cash
    equivalents in an account with a bank or other person under a name or
    in a manner that clearly indicates that the account holds property for
    the purpose of making payment for taking physical delivery, or
    receiving payment for making physical delivery, of a commodity under
    any commodity contracts, such property shall (subject to Sec.  190.19)
    be considered customer property in the cash delivery account class if
    held for making payment for taking delivery, or in the physical
    delivery account class, if held for the purpose of receiving such
    payment.

    Sec.  190.17   Calculation of net equity.

        (a) Net equity–separate capacities and calculations. (1) If a
    member of the clearing organization clears trades in commodity
    contracts through a commodity contract account carried by the debtor as
    a customer account for the benefit of the clearing member’s public
    customers and separately through a house account, the clearing member
    shall be treated as having customer claims against the debtor in
    separate capacities with respect to the customer account and house
    account at the clearing organization, and by account class. A member
    shall be treated as part of the public customer class with respect to
    claims based on any commodity customer accounts carried as “customer
    accounts” by the clearing organization for the benefit of the member’s
    public customers, and as part of the non-public customer class with
    respect to claims based on its house account.
        (2) Net equity shall be calculated separately for each separate
    customer capacity in which the clearing member has a claim against the
    debtor, i.e., separately by the member’s customer account and house
    account and by account class.
        (b) Net equity–application of debtor’s loss allocation rules and
    procedures. (1) The calculation of a clearing member’s net equity claim
    shall include the full application of the debtor’s loss allocation
    rules and procedures, including the default rules and procedures
    referred to in Sec. Sec.  39.16 and, if applicable, 39.35 of this
    chapter. This includes, with respect to the clearing member’s house
    account, any assessments or similar loss allocation arrangements
    provided for under those rules and procedures that were not called for
    before the filing date, or, if called for, have not been paid.
        (2) Where the debtor’s loss allocation rules and procedures would
    entitle clearing members to additional payments of cash or other
    property due to–
        (i) Portions of mutualized default resources that are prefunded, or
    assessed and collected, but in either event not used; or
        (ii) To the debtor’s recoveries on claims against others
    (including, but not limited to, recoveries on claims against clearing
    members who have defaulted on their obligations to the debtor),
    appropriate adjustments shall be made to the net equity claims of the
    clearing members that are so entitled.
        (c) Net equity–general. Subject to paragraph (b) of this section,
    net equity shall be calculated in the manner provided in Sec.  190.08,
    to the extent applicable.
        (d) Calculation of funded balance. Funded balance means a clearing
    member’s pro rata share of customer property other than member property
    (for accounts for a clearing member’s customer accounts) or member
    property (for a clearing member’s house accounts) with respect to each
    account class available for distribution to customers of the same
    customer class, calculated in the manner provided in Sec.  190.08(c) to
    the extent applicable.

    Sec.  190.18   Treatment of property.

        (a) General. The property of the debtor’s estate must be allocated
    between member property and customer property other than member
    property as provided in this section to satisfy claims of clearing
    members, as customers of the debtor. The property so allocated will
    constitute a separate estate of the customer class (i.e., member
    property, and customer property other than member property) and the
    account class to which it is allocated, and will be designated by
    reference to such customer class and account class.
        (b) Scope of customer property. Customer property is the property
    available for distribution within the relevant account class in respect
    of claims by clearing members, as customers of the clearing
    organization, based on customer accounts carried by the debtor for the
    benefit of such members’ public customers or such members’ house
    accounts.
        (1) Customer property includes the following:
        (i) All cash, securities, or other property, or the proceeds of
    such cash, securities, or other property, received, acquired, or held
    by or for the account of the debtor, from or for any commodity contract
    account of a clearing member carried by the debtor, which is:
        (A) Property received, acquired or held to margin, guarantee,
    secure, purchase or sell a commodity contract;
        (B) Open commodity contracts;
        (C) Physical delivery property as that term is defined in
    paragraphs (1) through (3) of the definition of that term in Sec. 
    190.01;
        (D) Cash, securities, or other property received by the debtor as
    payment for a commodity to be delivered to fulfill a commodity contract
    from or for the commodity customer account of a clearing member or a
    customer of a clearing member;
        (E) Profits or contractual rights accruing as a result of a
    commodity contract;
        (F) Letters of credit, including any proceeds of a letter of credit
    drawn upon by the trustee, or substitute customer property posted by a
    clearing member or a customer of a clearing member, pursuant to Sec. 
    190.04(d)(3); or
        (G) Securities held in a portfolio margining account carried as a
    futures account or a cleared swaps customer account;
        (ii) All cash, securities, or other property which:
        (A) Is segregated by the debtor on the filing date for the benefit
    of clearing members’ house accounts or clearing members’ public
    customer accounts;
        (B) Which was of a type described in paragraph (b)(1)(i)(A) of this
    section that is subsequently recovered by the avoidance powers of the
    trustee or is otherwise recovered by the trustee on any other claim or
    basis;
        (C) Represents a recovery of any debit balance, margin deficit or
    other claim of the debtor against any commodity contract account
    carried for the benefit of a member’s house accounts or a member’s
    public customer accounts;
        (D) Was unlawfully converted but is part of the debtor’s estate; or
        (E) Of a type described in paragraphs (a)(1)(ii)(H) through (K) of
    Sec.  190.09 (as if the term debtor used therein refers to a clearing
    organization as debtor); and

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        (iii) Any guaranty fund deposit, assessment, or similar payment or
    deposit made by a clearing member, or recovered by the trustee, to the
    extent any remains following administration of the debtor’s default
    rules and procedures, and any other property of a member available
    under the debtor’s rules and procedures to satisfy claims made by or on
    behalf of public customers of a member.
        (2) Customer property will not include property of the type
    described in Sec.  190.09(a)(2), as if the term debtor used therein
    refers to a clearing organization and to the extent relevant to a
    clearing organization.
        (c) Allocation of customer property between customer classes. (1)
    Property referred to in paragraph (b)(1)(iii) of this section should be
    allocated:
        (i) To customer property other than member property to the extent
    that the funded balance is less than one hundred percent of net equity
    claims for members’ public customers in any account class.
        (ii) Any remaining excess after the application of paragraph
    (c)(1)(i) of this section should be allocated to member property.
        (2) Where the funded balance for members’ house accounts is greater
    than one hundred percent with respect to any account class:
        (i) Any excess should be allocated to customer property other than
    member property to the extent that the funded balance is less than one
    hundred percent of net equity claims for members’ public customers in
    any account class.
        (ii) Any remaining excess after the application of paragraph
    (c)(2)(i) of this section should be allocated to member property to the
    extent that the funded balance is less than one hundred percent of net
    equity claims for members’ house accounts in any other account class.
        (3) Where the funded balance for members’ public customers in any
    account class is greater than one hundred percent:
        (i) Any excess should be allocated to customer property other than
    member property to the extent that the funded balance is less than one
    hundred percent of net equity claims for members’ public customers in
    any other account class.
        (ii) Any remaining excess after the application of paragraph
    (c)(3)(i) should be allocated to member property to the extent that the
    funded balance is less than one hundred percent of net equity claims
    for members’ house accounts in any account class.
        (d) Allocation of customer property among account classes–(1)
    Segregated property. Subject to paragraph (b) of this section, property
    held by or for the account of a customer, which is segregated on behalf
    of a specific account class within a customer class, or readily
    traceable on the filing date to customers of such account class within
    a customer class, or recovered by the trustee on behalf of or for the
    benefit of an account class within a customer class, must be allocated
    to the customer estate of the account class for which it is segregated,
    to which it is readily traceable, or for which it is recovered.
        (2) All other property. Customer property which cannot be allocated
    in accordance with paragraph (d)(1) of this section, shall be allocated
    within customer classes, but between account classes, in the following
    order:
        (i) To the estate of the account class for which the percentage of
    each members’ net equity claim which is funded is the lowest, until the
    funded percentage of net equity claims of such account class equals the
    percentage of each members’ net equity claim which is funded for the
    account class with the next lowest percentage of the funded claims; and
        (ii) Then to the estate of the two account classes so that the
    percentage of the net equity claims which are funded for each such
    account class remains equal until the percentage of each net equity
    claim which is funded equals the percentage of each net equity claim
    which is funded for the account class with the next lowest percentage
    of funded claims, and so forth, until all account classes within the
    customer class are fully funded.
        (e) Accounts without separation by account class. Where the debtor
    has, prior to the order for relief, kept initial margin for house
    accounts in accounts without separation by account class, then member
    property will be considered to be in a single account class.
        (f) Assertion of claims by trustee. Nothing in this section,
    including but not limited to the satisfaction of customer claims by
    operation of this section, shall prevent a trustee from asserting
    claims against any person to recover the shortfall of property
    enumerated in paragraphs (b)(1)(i)(E) and (b)(1)(ii) and (iii) of this
    section.

    Sec.  190.19   Support of daily settlement.

        (a) Notwithstanding any other provision of this part, funds
    received (whether from clearing members’ house or customer accounts) by
    a debtor clearing organization as part of the daily settlement required
    pursuant to Sec.  39.14 of this chapter shall, upon and after an order
    for relief, be included as customer property that is reserved for and
    traceable to, and promptly shall be distributed to, members entitled to
    payments of such funds with respect to such members’ house and customer
    accounts as part of that same daily settlement. Such funds when
    received, other than deposits of initial margin described in Sec. 
    39.14(a)(1)(iii) of this chapter, shall be considered member property
    and customer property other than member property, in proportion to the
    ratio of total gains in member accounts with net gains, and total gains
    in customer accounts with net gains, respectively. Deposits of initial
    margin described in Sec.  39.14(a)(1)(iii) of this chapter shall be
    considered Member property and Customer property other than member
    property, to the extent deposited on behalf of, respectively, clearing
    members’ house accounts and customer accounts.
        (b) To the extent there is a shortfall in funds received pursuant
    to paragraph (a) of this section:
        (1) Such funds shall be supplemented in accordance with the
    derivatives clearing organization’s default rules and procedures
    adopted pursuant to Sec. Sec.  39.16 and, as applicable, 39.35 of this
    chapter, and any recovery and wind-down plans maintained pursuant to
    Sec.  39.39 of this chapter and submitted pursuant to Sec.  39.19 of
    this chapter, including the property in paragraphs (b)(1)(i) and (iv)
    of this section, as applicable, to the extent necessary to meet the
    shortfall. Such funds shall be included as member property and customer
    property other than member property in the proportion described in
    paragraph (a) of this section, and shall be distributed promptly to
    members’ house accounts and members’ customer accounts which accounts
    are entitled to payment of such funds as part of that daily settlement:
        (i) Initial margin held for the account of a member, including
    initial margin segregated for the customers of such member, that has
    defaulted on payments required pursuant to a daily settlement, but only
    to the extent that such margin is permitted to be used pursuant to
    parts 1, 22, and 30 of this chapter.
        (ii) Assets of the debtor, to the extent dedicated to such use as
    part of the debtor’s default rules and procedures, and any recovery and
    wind-down plans, described in this paragraph (b)(1).
        (iii) Prefunded guarantee or default funds maintained pursuant to
    the debtor’s default rules and procedures.
        (iv) Payments made by members pursuant to assessment powers

    [[Page 36098]]

    maintained pursuant to the debtor’s default rules and procedures.
        (2) If the funds that are included as customer property pursuant to
    paragraph (a) of this section, supplemented as described in paragraph
    (b)(1) of this section, are insufficient to pay in full members
    entitled to payment of such funds as part of daily settlement, then
    such funds shall be distributed pro rata to such members’ house
    accounts and customer accounts in proportion to the ratio of total
    gains in member accounts with net gains, and total gains in customer
    accounts with net gains, respectively.

    Appendix A to Part 190–Customer Proof of Claim Form

    BILLING CODE 6351-01-P

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    BILLING CODE 6351-01-C

    Appendix B to Part 190–Special Bankruptcy Distributions

    Framework 1–Special Distribution of Customer Funds When the Cross-
    Margining Account Is a Futures Account

        (a) This distributional rule applies when a debtor futures
    commission merchant has participated in a cross-margining (“XM”)
    program for futures and securities under which the cross-margined
    positions of its futures customers (as defined in Sec.  1.3 of this
    chapter) and the property received to margin, secure or guarantee
    such positions are held in one or more accounts pursuant to a
    Commission order that requires such positions and property to be
    segregated, pursuant to section 4d(a) of the Act, from the positions
    and property of–
        (1) The futures commission merchant,
        (2) If applicable, any affiliate carrying the securities
    positions as a participant in the XM program (“Affiliate”), and
        (3) Other futures customers of the futures commission merchant
    (such segregated accounts, the “XM accounts”).
        (b) The futures commission merchant may, and any Affiliate that
    holds the securities positions in an XM account that it directly
    carries will, be registered as a broker-dealer under the Exchange
    Act. The Commission order approving the XM program may limit
    participating customers to market professionals and will require a
    participating customer to sign an agreement, in a form approved by
    the Commission, that refers to this distributional rule.
        (c) A futures commission merchant is deemed to receive
    securities held in an XM account, including securities and other
    property held by an Affiliate in an XM account, as “futures
    customer funds” (as defined in Sec.  1.3 of this chapter) that
    margin, guarantee or secure commodity contracts in the XM account
    (or paired XM accounts at the futures commission merchant and an
    Affiliate). Under the agreement signed by the customer, in the event
    that the futures commission merchant (or Affiliate) is the subject
    of a SIPA proceeding, the customer agrees that securities in an XM
    account are excluded from the securities estate for purposes of
    SIPA, and that its claim for return of the securities will not be
    treated as a customer claim under SIPA. These restrictions apply to
    the customer only, and should not be read to limit any action that
    the trustee may take to seek recovery of property in an XM account
    carried by an Affiliate as part of the customer estate of the
    futures commission merchant.
        (d) XM accounts, and other futures accounts that are subject to
    segregation under section 4d(a) of the Act (pursuant to the
    Commission’s regulations thereunder) (“non-XM accounts”), are
    treated as two subclasses

    [[Page 36109]]

    of futures account with two separate pools of segregated futures
    customer property, an XM pool and a non-XM pool, each of which
    constitutes a segregated pool under section 4d(a) of the Act. If the
    futures commission merchant has participated in multiple XM
    programs, the XM accounts in the different programs are combined and
    treated as part of the same XM subclass of futures accounts. A
    futures customer could hold both non-XM and XM accounts.
        (e) Customer claims under Part 190 arising out of the XM
    subclass of accounts are subordinated to customer claims arising out
    of the non-XM subclass of accounts in certain circumstances in which
    the futures commission merchant does not meet its segregation
    requirements. The segregation requirement is the amount of futures
    customer funds that the futures commission merchant is required by
    the Act and Commission regulations or orders to hold on deposit in
    segregated accounts on behalf of its futures customers (exclusive of
    its targeted residual amount obligations pursuant to Sec.  1.3 of
    this chapter).
        (f) If there is a shortfall in the non-XM pool and no shortfall
    in the XM pool, all customer net equity claims, whether or not they
    arise out of the XM subclass of accounts, will be combined and paid
    pro rata out of the combined XM and non-XM pools of futures customer
    property. If there is a shortfall in the XM pool and no shortfall in
    the non-XM pool, customer net equity claims arising from the XM
    subclass of accounts must be satisfied first from the XM pool, and
    customer net equity claims arising from the non-XM subclass of
    accounts must be satisfied first from the non-XM pool. If there is a
    shortfall in both the non-XM and XM pools:
        (1) If the non-XM shortfall as a percentage of the segregation
    requirement for the non-XM pool is greater than or equal to the XM
    shortfall as a percentage of the segregation requirement for the XM
    pool, all customer net equity claims will be paid pro rata out of
    the combined XM and non-XM pools of futures customer property; and
        (2) If the XM shortfall as a percentage of the segregation
    requirement for the XM pool is greater than the non-XM shortfall as
    a percentage of the segregation requirement for the non-XM pool,
    non-XM customer net equity claims will be paid pro rata out of the
    available non-XM pool, and XM customer net equity claims will be
    paid pro rata out of the available XM pool. In this way, non-XM
    customers will never be adversely affected by an XM shortfall.
        (g) The following examples illustrate the operation of this
    rule. The examples assume that the FCM has two futures customers,
    one with exclusively XM accounts and one with exclusively non-XM
    accounts.
    BILLING CODE 6351-01-P

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    Framework 2 Special Allocation of Shortfall to Customer Claims When
    Customer Funds for Futures Contracts and Cleared Swaps Customer
    Collateral Are Held in a Depository Outside of the United States or in
    a Foreign Currency

        The Commission has established the following allocation
    convention with respect to futures customer funds (as Sec.  1.3 of
    this chapter defines such term) and Cleared Swaps Customer
    Collateral (as Sec.  22.1 of this chapter defines such term) (both
    of which are customer funds (as Sec.  1.3 of this chapter defines
    such term) that are segregated pursuant to the Act and Commission
    rules thereunder), which applies in certain circumstances when
    futures customer funds or Cleared Swaps Customer Collateral are held
    by a futures commission merchant in a depository outside the United
    States (“U.S.”) or in a foreign currency. If a futures commission
    merchant enters into bankruptcy and maintains futures customer funds
    or Cleared Swaps Customer Collateral in a depository outside the
    U.S. or in a depository located in the U.S. in a currency other than
    U.S. dollars, the trustee shall use the following allocation
    procedures to calculate the claim of each public customer in the
    futures account class or each public customer in the cleared swaps
    account class, as applicable, when sovereign action of a foreign
    government or court has occurred that results in losses to the
    futures customer funds or Cleared Swaps Customer Collateral.
    Applying the allocation convention will result in reduction of
    certain customer claims for such futures customer funds or Cleared
    Swaps Collateral. For purposes of this bankruptcy convention,
    sovereign action of a foreign government or court would include, but
    not be limited to, the application or enforcement of statutes,
    rules, regulations, interpretations, advisories, decisions, or
    orders, formal or informal, by a federal, state, or provincial
    executive, legislature, judiciary, or government agency. The trustee
    should perform the allocation procedures separately with respect to
    each public customer in the futures account class or cleared swaps
    account class.

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    BILLING CODE 6351-01-C

        Issued in Washington, DC, on April 16, 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 Bankruptcy Regulations–Commission Voting Summary,
    Chairman’s Statement, and Commissioners’ Statements

    Appendix 1–Commission 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 2–Statement of Support of Chairman Heath P. Tarbert

        In his 1926 novel The Sun Also Rises, Ernest Hemingway offers
    what is perhaps the best chronicle of the anatomy of a typical
    bankruptcy. In the novel, the character Mike

    [[Page 36130]]

    Campbell is asked how he went bankrupt. He answers: “two ways . . .
    gradually and then suddenly.”
        As Hemingway’s dialogue succinctly describes, bankruptcies often
    come on unexpectedly. A business’s relatively minor financial or
    operational troubles may be exacerbated by a sudden crisis–whether
    a firm-level issue, or a national or even global event. Many
    catalysts for insolvency are entirely unpredictable, and we must be
    prepared with a bankruptcy regime that fosters a swift and equitable
    resolution.

    Background on the CFTC’s Bankruptcy Regime

        Part 190 of the CFTC’s rules, addressing commodity broker 1
    bankruptcies, was enacted in 1983. Since that time, the commodity
    broker bankruptcy process and the state of the industry have
    gradually changed. Yet in the nearly four decades since, Part 190
    has never been revised to keep up. This regime is intended to
    protect customer funds, but having antiquated rules does not help
    achieve that goal.
    —————————————————————————

        1 The term “commodity broker” may refer either to a futures
    commission merchant (“FCM”) or a derivatives clearing organization
    (“DCO”). 11 U.S.C. 101(6).
    —————————————————————————

        CFTC staff has therefore embarked on a process of updating Part
    190 over the last several years, while a healthy economy made
    bankruptcies relatively unlikely. Today’s proposal is a product of
    that hard work and engagement with external stakeholders and subject
    matter experts, including the American Bar Association.
        To be clear, U.S. derivatives markets have weathered the recent
    volatility associated with the coronavirus pandemic admirably. The
    decision to issue this proposal was made long before COVID-19
    emerged as a concern, and I hope and anticipate that it will not be
    necessary to use this updated bankruptcy regime to address fallout
    from current market conditions. But as I just noted, we cannot know
    for certain what the future holds–for bankruptcy often comes
    “gradually and then suddenly.” We must therefore be prepared for
    all contingencies.
        Accordingly, I am pleased to support today’s proposal to update
    Part 190 for the 21st century. The proposal promotes the CFTC’s core
    values in a number of ways, particularly the values of clarity and
    forward thinking. The proposal also furthers the agency’s strategic
    goal of regulating our derivatives markets to promote the interests
    of all Americans.2
    —————————————————————————

        2 See Remarks of CFTC Chairman Heath P. Tarbert to the 35th
    Annual FIA Expo 2019 (Oct. 30, 2019), available at https://www.cftc.gov/PressRoom/SpeechesTestimony/opatarbert2 (outlining the
    CFTC’s strategic goals).
    —————————————————————————

    Clarity for Customers and Creditors

        The proposed rule serves our core value of clarity by
    incorporating key principles and actual practice as they have
    evolved in commodity broker bankruptcies and related judicial
    decisions in the years since 1983.
        A new introductory section of the rule would enumerate certain
    “core concepts” of commodity broker bankruptcies. This section is
    intended to offer a readily understandable primer on relevant law,
    policy, and practical considerations in this area, thereby providing
    a common mental framework for brokers, customers, bankruptcy
    trustees, courts, and the public. Among other things, this section
    provides an overview of the various classes of customer segregated
    accounts held by a commodity broker; the priority of public
    customers over non-public customers; the requirement of pro rata
    distribution; and the preference to transfer rather than liquidate
    open positions.
        The proposal would further codify a number of approaches and
    practices that have proven necessary or desirable in commodity
    broker bankruptcies in the intervening years since 1983. For
    example, the proposed rule would authorize a bankruptcy trustee to
    treat a broker’s customers in the aggregate for certain purposes,
    rather than handling each customer’s account on a bespoke basis.
    This aggregate treatment has in practice proven unavoidable in more
    recent commodity broker bankruptcies, which have required
    disposition of hundreds of thousands of derivatives contracts–on
    behalf of thousands or tens of thousands of customers–within days
    or even hours. By making clear that such aggregate disposition of
    accounts is permissible and may even be likely to occur than the
    alternative, the proposal would provide greater clarity on potential
    outcomes for trustees, brokers, and customers.
        Thus, for example, the proposed rule would expressly permit the
    trustee, following consultation with CFTC staff, to determine
    whether to treat open positions of public customers in a designated
    hedging account as specifically identifiable property (requiring the
    trustee to solicit and comply with individual customer
    instructions), or instead transfer or “port” all such positions to
    a solvent commodity broker where possible. This provision recognizes
    that requiring the trustee to identify hedging accounts and provide
    account holders the opportunity to give individual instructions is
    often a resource-intensive endeavor, which could interfere with the
    trustee’s ability to act in a timely and effective manner to protect
    all the broker’s customers.3
    —————————————————————————

        3 The proposal would also grant the trustee needed discretion
    in other respects–for example, by allowing the trustee to modify
    the customer proof of claim form as appropriate for a particular
    bankruptcy.
    —————————————————————————

        The proposal also includes explicit rules governing the
    bankruptcy of a clearinghouse, otherwise known as a derivatives
    clearing organization or DCO. Since its inception, Part 190 has
    contemplated only a “case-by-case” approach with no corresponding
    rules to spell out what would happen. While a DCO bankruptcy is
    extremely unlikely, it is important to provide ex ante clarity to
    DCO members and customers as to how a resolution would be handled.
    The proposed rule would favor following the DCO’s existing default
    management and recovery and wind-down rules and procedures. This
    would allow the bankruptcy trustee to take advantage of an
    established “playbook,” rather than being forced to form a
    resolution plan in a matter of hours during the onset of a crisis.
    The proposed rule would also give legal certainty to DCO actions
    taken in accordance with a recovery and wind-down plan filed with
    the CFTC by precluding the trustee from voiding any such action.
        I support codifying these and other practices within our rules
    in order to provide greater transparency and predictability to
    brokers, customers, and other key stakeholders regarding permissible
    and expected procedures in a bankruptcy scenario.

    Forward Thinking on Future Insolvencies

        The proposed rule would update a number of provisions to reflect
    changes in financial technology since Part 190 was enacted 37 years
    ago. The enhanced discretion discussed above would in many cases
    help the trustee to account for the many-fold increase in
    transaction execution and processing speed, as well as the potential
    for large and unpredictable market moves given the rise of global
    trading and the 24-hour news cycle. In addition, the proposal would
    acknowledge digital assets as a physically deliverable asset class,
    in light of the listing of a number of physically delivered
    “virtual currency” derivatives contracts.
        The proposed changes also reflect advances in communications
    technology. For example, under the proposed rule, notice of a
    bankruptcy filing and related filed documents would be provided to
    the CFTC by electronic rather than paper means. Furthermore,
    required customer notice procedures would no longer include
    publication in a “newspaper of general circulation” in light of
    the downward trend in newspaper readership. The proposal would
    similarly recognize changes from paper-based to electronic recording
    of documents of title.

    Promoting the Interests of All Americans

        Protection of customer funds is the lynchpin of the commodity
    broker bankruptcy regime of Part 190. The proposed rule includes a
    number of measures to enhance those protections, including by
    buttressing provisions already in place under existing law and
    regulation. In doing so, the proposal seeks to ensure that the
    CFTC’s bankruptcy regime works for the derivatives market
    participants it was meant to serve–particularly public brokerage
    customers, with a special emphasis on customers using derivatives to
    hedge their commercial risks.
        For example, the proposal reinforces the bankruptcy priority of
    public broker customers over “non-public” customers (e.g., the
    broker’s proprietary and affiliate accounts). It also strengthens
    the CFTC’s longstanding position that shortfalls in segregated
    customer assets should be made up from the broker’s general estate.
    As a result, our proposal makes clear that the CFTC’s bankruptcy
    regime is complementary to relatively recently-enacted customer
    protection rules for day-to-day broker operations.4
    —————————————————————————

        4 17 CFR 1.23 (enacted in 2013 and revised in 2014) (requiring
    an FCM to contribute its own funds as “residual interest” to top
    up shortfalls in customer segregated accounts in the ordinary course
    of business).
    —————————————————————————

        The proposal would also further the preference–consistent with
    Subchapter IV of

    [[Page 36131]]

    the Bankruptcy Code 5–for transferring or “porting” customer
    positions to a solvent broker, rather than liquidating those
    positions. Porting of positions protects the utility of customer
    hedges by avoiding the risk of market moves between liquidation and
    re-establishment of the customer’s hedging position. It also
    mitigates the risk that liquidation itself will cause such market
    moves. Among other measures, the grant of trustee discretion as to
    whether to treat hedging positions as specifically identifiable
    property will serve these objectives by facilitating porting of such
    positions en masse, promptly and efficiently, along with other
    customer property.
    —————————————————————————

        5 Statutory authority for part 190 includes Subchapter IV of
    Chapter 7 of the Bankruptcy Code.
    —————————————————————————

    Conclusion

        While updates to the CFTC’s bankruptcy rules have been years in
    the making, I believe today’s proposal was well worth the wait. The
    commodity broker resolution regime of Part 190 is respected
    throughout the world for its effectiveness and efficiency. In
    addition, Part 190 is important to the continued global
    competitiveness of American exchanges, clearinghouses, and market
    intermediaries. The proposed rule further enhances these features of
    our regime. Through its focus on promoting customer protection,
    clarity, and forward thinking, I believe the proposed rule would, if
    finalized, position us well for this decade and beyond.

    Appendix 3–Statement of Support of Commissioner Brian D. Quintenz

        I am pleased to support today’s proposal to amend the
    Commission’s regulations governing the bankruptcy proceedings of
    commodity brokers.1 This proposal makes the first comprehensive
    change to these regulations since they were first issued in 1983. It
    marks another important step in Chairman Tarbert’s agenda to update
    and make more efficient several critical areas of the Commission’s
    regulations. I note that today’s proposal was not hastily prepared
    in response to the market events surrounding the COVID-19 pandemic.
    Commission staff has been considering these amendments since 2017,
    when a subcommittee of the American Bar Association (ABA) requested
    that the Commission update the part 190 bankruptcy regulations.2
    The ABA provided its proposal in response to the CFTC’s Project KISS
    initiative, which generally requested input from the public on how
    the Commission’s regulations could be simplified to reduce
    compliance burdens.3 I commend former Chairman Giancarlo for
    launching Project KISS because it is important for agencies
    periodically to review their regulations, some of which may not have
    been amended for many years, to ensure they are as targeted,
    rational, and transparent as possible, in light of new developments
    in the markets they affect. I am pleased that the Commission’s
    rulemaking work continues despite the new challenges the agency is
    facing in light of the pandemic.
    —————————————————————————

        1 Part 190 of the Commission’s regulations (17 CFR 190).
        2 Proposal by the Part 190 Subcommittee of the Business Law
    Section of the Amer. Bar Assoc., dated Sept. 29, 2017, available at:
    https://comments.cftc.gov/PublicComments/ViewComment.aspx?id=61330&SearchText and https://comments.cftc.gov/PublicComments/ViewComment.aspx?id=61331&SearchText.
        3 CFTC Requests Public Input on Simplifying Rules, https://www.cftc.gov/PressRoom/PressReleases/pr7555-17.
    —————————————————————————

        I would like to highlight a few aspects of today’s proposal.
    First of all, the proposal reaffirms the special treatment the U.S.
    Bankruptcy Code affords to the customer account of an insolvent
    commodity broker, so that customers’ positions can promptly be
    transferred.4 The Commission is proposing new rules for an
    insolvent DCO, which are similar to the rules applicable to an FCM.
    These rules take into account Title II of the Dodd-Frank Act, and I
    am pleased that the FDIC was consulted. Next, taking advantage of
    the Commission’s experience with a few insolvent FCMs over the past
    decades, the proposal would provide increased deference to the
    trustee that a U.S. Bankruptcy Court appoints to oversee the
    proceedings of an insolvent commodity broker. This increased
    deference is intended to expedite the transfer of customer funds. In
    light of the Commission’s experience from the bankruptcy of MF
    Global in 2011, proposed amendments would treat letters of credit
    equivalently to other collateral posted by customers, so that the
    pro rata distribution of customer property in the event of a
    shortfall in the customer account would apply equally to all
    collateral. The proposal also reflects experience from MF Global by
    dividing the delivery account into “physical delivery” and “cash
    delivery” account classes. Property other than cash is generally
    easier to trace, so it should have the benefit of a separate account
    class. Finally, the proposal’s revised treatment of the “delivery
    account,” applicable in the context of physically-settled futures
    and cleared swaps, would apply not only to tangible commodities, as
    is currently the case, but also to digital assets. This amendment
    will provide important legal certainty to the growing exchange-
    traded market for cleared, physically-settled, digital asset
    derivatives.
    —————————————————————————

        4 11 U.S.C. 761 et seq.
    —————————————————————————

        I look forward to reviewing the comments to this proposal, not
    only from FCMs and DCOs, but also from their diverse customer base,
    including asset managers, the agricultural community, energy firms,
    and other derivatives end-users.

    Appendix 4–Concurring Statement of Commissioner Rostin Behnam

        I respectfully support the Commodity Futures Trading
    Commission’s (the “Commission” or “CFTC”) issuance of a proposed
    rule (the “Proposal”) to amend Part 190 of its regulations, which
    govern bankruptcy proceedings of commodity brokers. First and
    foremost, I want to thank Commission staff for all of their hard
    work on this Proposal. If finalized, it will be the first major
    update of the CFTC’s existing Part 190 since 1983, when it was
    originally implemented by the Commission.1
    —————————————————————————

        1 Bankruptcy, 48 FR 8716 (March 1, 1983).
    —————————————————————————

        The Proposal is not a response to current market conditions, nor
    is it a proposal that has only recently been considered; it is the
    product of years of staff analysis and engagement with market
    participants, including the Part 190 Subcommittee of the Business
    Law Section of the American Bar Association, which submitted
    detailed suggested model Part 190 rules in response to a prior
    Commission request for information.2 Several agency Chairs going
    back many years deserve recognition and thanks for pushing to update
    Part 190 and starting this process. Customer protections are at the
    heart of the Commodity Exchange Act, and it is imperative that the
    Commission have clear rules that direct how proceedings occur during
    a commodity broker bankruptcy. The Commission, market participants,
    customers, and the public will benefit greatly from this Proposal,
    and I am proud to have contributed to this effort.
    —————————————————————————

        2 82 FR 23765 (May 3, 2017). The ABA Submission can be found
    at: https://comments.cftc.gov/PublicComments/ViewComment.aspx?id=61331&SearchText; the accompanying cover note
    (“ABA Cover Note”) can be found at: https://comments.cftc.gov/PublicComments/ViewComment.aspx?id=61330&SearchText
    —————————————————————————

        The revision is designed to recognize the many changes in our
    industry over the past 37 years. The Commission finalized the
    existing part 190 the same year that the movie Trading Places
    debuted–when futures trading, so distinctly depicted in the film,
    occurred exclusively in oval trading pits, and markets were less
    global, less complex, and less sophisticated. To paraphrase former
    CFTC Chairman Giancarlo, Part 190 is an analog regulation applying
    to what has since become a digital world.3
    —————————————————————————

        3 See Address of CFTC Commissioner J. Christopher Giancarlo to
    the American Enterprise Institute: 21st Century Markets Need 21st
    Century Regulation (Sep. 21, 2016),  https://www.cftc.gov/PressRoom/SpeechesTestimony/opagiancarlo-17.
    —————————————————————————

        More personally, I was a lead advisor during the U.S. Senate’s
    investigation of the 2011 MF Global bankruptcy, the eighth largest
    corporate bankruptcy in American history.4 During the Senate
    investigation, I learned the intricate contours of Part 190, its
    relationship to the Bankruptcy Code, and how the larger puzzle of
    creditors, customers, and equity holders, among others, fits
    together. It was during those frenzied days that I truly appreciated
    the regulatory principle that customer margin is sacrosanct
    property. As a Commissioner since 2017, I have made customer
    protections an absolute priority in part because of my experience
    during those few months. Having spoken with many market participants
    throughout the bankruptcy proceedings, including those whose money
    disappeared in the days immediately following, customer protection
    is my most pressing responsibility.
    —————————————————————————

        4 John Gapper and Isabella Kaminska, Downfall of MF Global,
    Financial Times, Nov. 4, 2011, available at https://www.ft.com/content/2882d766-06fb-11e1-90de-00144feabdc0.
    —————————————————————————

        The strengths and weaknesses of the Commission’s bankruptcy
    regime were further laid bare just a few months later in early 2012
    following the bankruptcy of Peregrine Financial Group (“PFG”)–a
    second blow in short order. Important lessons have been learned,
    both in terms of

    [[Page 36132]]

    what works and what does not, and I believe today’s Proposal is a
    positive step to addressing both.
        There are a number of changes in today’s proposal that are
    intended to further support provisions of Part 190 that have worked
    in prior bankruptcies. One of the themes of this refresh is clarity.
    The goal is to be as clear as possible about the Commission’s
    intentions regarding Part 190 in order to enhance the understanding
    of Designated Clearing Organizations (“DCOs”), Futures Commission
    Merchants (“FCMs”), their customers, trustees, and the public at
    large. Changes in this proposal would foster the longstanding and
    continuing policy preference for transferring (as opposed to
    liquidating) the positions of public customers–an important
    customer protection. Other changes further support existing
    requirements including that short falls in segregated property
    should be shored up from the FCM’s general assets, and that public
    customers are favored over non-public customers. The proposal also
    grants trustees enhanced discretion based upon prior positive
    experience, and codifies practice adopted in past bankruptcies by
    requiring FCMs to notify the Commission of their intent to file for
    voluntary bankruptcy.
        Other changes address what has not worked or become outdated. In
    light of lessons learned from MF Global, the Commission is proposing
    changes to the treatment of letters of credit as collateral, both
    during business as usual and during bankruptcy, in order to ensure
    that customers who post letters of credit as collateral have the
    same proportional loss as customers who post other types of
    collateral.
        The Proposal also addresses a number of changes that have
    naturally occurred in our markets since the original Part 190
    finalization in 1983. The Commission is proposing a new subpart C to
    part 190, specifically governing the bankruptcy of a clearing
    organization. As DCOs have grown in importance over time, including
    being deemed systemically important by the Financial Stability
    Oversight Council following the financial crisis,5 the Commission
    believes that it is imperative to have a clear plan in place for
    exactly how a DCO bankruptcy would be resolved. The Proposal also
    addresses changes in technology over the past 37 years, and the
    movement from paper-based to electronic-based means of
    communication–a stark reminder from the PFG bankruptcy.
    —————————————————————————

        5 https://www.federalreserve.gov/paymentsystems/designated_fmu_about.htm.
    —————————————————————————

        I am hopeful that the 90 day comment period will allow
    sufficient time for the public to digest this extensive Proposal and
    provide fulsome comments. There can be no higher demand of market
    participants and the general public than to assist and guide the
    Commission in its duty, especially for one as important as this
    Proposal; it is absolutely critical.
        If needed, I encourage market participants to request an
    extension of the comment period. As we all continue to endure the
    challenges of new realities at home and in the workplace as a result
    of the Covid-19 pandemic, I firmly believe the Commission needs to
    be as flexible as necessary to accommodate market participants and
    the general public in their efforts to provide us with the best
    comments to rulemakings. I have made my position clear on what and
    how the Commission should be allocating its resources during these
    unprecedented times.6
    —————————————————————————

        6 Statement of Commissioner Rostin Behnam Regarding COVID-19
    and CFTC Digital Assets Rulemaking (March 24, 2020), https://www.cftc.gov/PressRoom/SpeechesTestimony/behnamstatement032420;
    Statement of Commissioner Rostin Behnam Regarding CFTC’s Extension
    of Currently Open Comment Periods in Response to the COVID-19
    Epidemic (April 10, 2020), https://www.cftc.gov/PressRoom/SpeechesTestimony/behnamstatement041020.
    —————————————————————————

        As we propose bankruptcy rules that would provide important
    customer protections, I note with approval that today we are also
    finalizing another rule related to customer protection. Rule 160.30
    re-establishes longstanding detailed requirements for Commission
    registrants to adopt policies and procedures to address
    administrative, technical and physical safeguards for the protection
    of customer records and information.
        I would like to close by again thanking staff for all of their
    hard work in producing this refresh of the Commission’s part 190
    rules to provide important customer protections, and look forward to
    considering comments from the public as the Commission considers
    this critically important rule.

    Appendix 5–Statement of Commissioner Dan M. Berkovitz

    Introduction

        I support the proposed comprehensive amendments to the
    Commission’s bankruptcy regulations. These regulations specifically
    address the disposition of assets, particularly customer property,
    of a bankrupt futures commission merchant (FCM) or derivatives
    clearing organization (DCO). The amendments provide a needed update
    to regulations that the Commission originally adopted in 1983 to
    account for significant changes in the size, complexity, and
    structure of our derivatives markets and market participants over
    the past 37 years. They also incorporate “lessons learned” from
    FCM bankruptcies during that period. FCM bankruptcies are rare, and
    a registered DCO has never gone bankrupt in the history of the CFTC.
    It is nonetheless important to make the bankruptcy process as
    effective and efficient as possible to protect, preserve, and return
    customer assets quickly.
        The overarching purposes of the provisions in the U.S.
    Bankruptcy Code relating to the liquidation of commodity brokers are
    to protect the customers of such brokers and to mitigate systemic
    risks that could arise from a commodity broker bankruptcy.1 The
    Bankruptcy Code provides certain special protections for positions
    and property of customers of an FCM debtor so that the customers and
    current or future counterparties (and the clearing house) can be
    assured that those positions and property will not be treated as
    part of the FCM debtor’s property and can be transferred to another
    FCM. In this way, a single FCM’s bankruptcy will not cascade through
    derivatives markets by impacting customer positions and the
    counterparties to those positions.2
    —————————————————————————

        1 See 11 U.S.C., Chapter 7, Subchapter IV–Commodity Broker
    Liquidation. “Commodity Broker” is defined to mean a futures
    commission merchant, foreign futures commission merchant, clearing
    organization, leverage transaction merchant, or commodity options
    dealer, for which there is a “customer,” as defined in the
    bankruptcy code. See 11 U.S.C. 101(6).
        2 The bankruptcy trustee is directed to “return promptly to a
    customer any specifically identifiable security, property, or
    commodity contract to which such customer is entitled, or shall
    transfer, on such customer’s behalf, such security, property, or
    commodity contract to a commodity broker that is not a debtor”
    subject to CFTC regulations. 11 U.S.C. 766(c). Section 764(a) of the
    Bankruptcy Code provides that “any transfer by the debtor of
    property that, but for such transfer, would have been customer
    property, may be avoided by the [bankruptcy] trustee . . . .” 11
    U.S.C. 764(a).
    —————————————————————————

        In section 20(a) of the Commodity Exchange Act (“CEA”)
    Congress gave the Commission broad authority to establish
    regulations regarding commodity broker debtors, including
    identifying which property shall be considered customer property (or
    commodity broker member property), the method for conducting the
    business of a commodity broker after the filing of a bankruptcy
    petition, and how net equity of customers is determined.3 Pursuant
    to CEA section 20, the Commission first adopted regulations to
    address these issues in 1983.
    —————————————————————————

        3 See CEA section 20(a), 7 U.S.C. 24(a).
    —————————————————————————

    Need for Comprehensive Amendments

        Since 1983, trading volumes and speeds have increased
    significantly. There are fewer FCMs, and much of the FCM business is
    concentrated in a few large firms, particularly with respect to
    swaps. Swap trading and clearing were added to the CFTC’s
    jurisdiction following the 2008 financial crisis, and FCMs and
    clearing organizations trade and clear large volumes of swaps that
    were not considered when the Commission first adopted its bankruptcy
    regulations. The volume of cleared derivatives trades has also
    grown, and the amount of customer property held by FCMs and clearing
    organizations has correspondingly increased to tens of billions of
    dollars. This increase in the amount of customer property holdings
    and concentration of activity in fewer commodity brokers increases
    the complexity and risks posed by a commodity broker bankruptcy.
        These changes in the derivatives industry since the Commission
    originally adopted its bankruptcy regulations warrant updating those
    regulations. In addition, the several FCM bankruptcies that have
    occurred during this period have provided valuable lessons regarding
    how the current regulations have operated in practice. It is
    appropriate to incorporate into the Commission’s regulations these
    lessons to improve the timely and equitable distribution of customer
    assets. The preamble to the Proposal provides a good summary of the
    foundational principles underlying the Proposal and describes the
    large number of rule

    [[Page 36133]]

    amendments to implement those principles. I will mention here a few
    aspects of the Proposal that I encourage commenters to address.
        The Proposal is consistent with the bankruptcy code generally,
    while also recognizing the particular nature and uses of derivatives
    and their unique status under the code. The Proposal incorporates
    pro rata distribution among “public customers” 4 as a class,
    with public customers having a priority interest in property held by
    a debtor FCM. This approach is appropriate because public customers
    are not participants in the business decisions of the FCM debtor,
    and pro rata distribution among public customers would put smaller
    customers on an equal footing with larger customers. The Proposal
    also grants greater discretion to the trustee that manages the
    bankruptcy process, in recognition of the complexity of modern
    commodity brokers, the speed of trading and price discovery, and the
    stated goal of prompt distribution of customer property.
    —————————————————————————

        4 Generally, public customers are customers whose accounts
    must be segregated from the proprietary accounts of an FCM or of the
    members of a clearing organization. See Definition of “public
    customer” in regulation 190.01.
    —————————————————————————

        Emphasizing prompt distribution of customer property over
    exacting precision in certain aspects of the bankruptcy proceedings
    is also a guiding concept in the Proposal. One of the lessons the
    Commission has learned from prior FCM bankruptcies is that many
    public customers rely on expected cash flows from commercial
    activities, including associated hedges, to fund ongoing operations.
    A failure to promptly distribute funds in a bankruptcy proceeding
    could therefore not only disrupt the cash flow and normal business
    operations of the debtor’s customers, but also set in motion a chain
    of payment delays or failures in commercial markets.
        While I believe the Proposal largely achieves an appropriate
    balance of equitable and prompt resolution of a bankrupt commodity
    broker, I look forward to receiving comments from stakeholders on
    these issues. In particular, I look forward to hearing from smaller
    commercial market participants who may not have the resources to
    actively defend their own interests in an FCM bankruptcy proceeding.
    Does the Proposal provide sufficient protections? Are the likely
    outcomes from the customer property distribution choices made in the
    Proposal expected to provide an equitable and timely result? I look
    forward to comments.

    Comment Period

        Speaking of comments, in light of the coronavirus emergency this
    country and the world are currently dealing with, 90 days is not
    sufficient time to review and comment on this nearly 400-page
    document. The Proposal amends almost every section in the existing
    bankruptcy regulations and adds several new provisions. A 90-day
    comment period would barely be long enough in normal times. Many
    stakeholders with an interest in these regulations are struggling
    day-by-day, hour-by-hour, just to maintain operations, generate cash
    flow, and pay employees. It is incongruous to ask the public to
    digest in 90 days a lengthy and complex rulemaking that took the
    Commission three years to develop. There is no statutory deadline or
    commercial imperative that compels a comment period of 90 days.
    There is no need to rush commenters or the rulemaking process in the
    midst of a pandemic in an area as complex and as important as
    bankruptcy.

    Conclusion

        I commend the hard work of the Commission staff who have spent
    years working on this Proposal. The Proposal’s deliberative,
    pragmatic choices reflect time spent learning from past bankruptcies
    and engaging with a number of interested parties (particularly the
    American Bar Association) on these issues. My office received a
    number of briefings on the Proposal and staff worked diligently to
    incorporate our comments throughout the process.
        The Proposal is a comprehensive and complex effort to modernize
    the Commission’s existing bankruptcy regulations. While FCM
    bankruptcies are rare and clearing organization bankruptcies have
    not occurred to date, such events can be highly disruptive to market
    participants. In some cases, they could impact the continued
    operation of markets altogether. It is critical for the Commission
    to update its bankruptcy rules to reduce the probability and extent
    of potential disruptions should an unfortunate event of bankruptcy
    occur.
        I look forward to comments on the Proposal and working to
    finalize this rule in a thoughtful and deliberative manner.

    [FR Doc. 2020-08482 Filed 6-11-20; 8:45 am]
     BILLING CODE 6351-01-P

     

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