[Federal Register Volume 62, Number 67 (Tuesday, April 8, 1997)]
[Rules and Regulations]
[Pages 16687-16690]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-8872]
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COMMODITY FUTURES TRADING COMMISSION
17 CFR Part 30
Foreign Futures and Option Transactions
AGENCY: Commodity Futures Trading Commission.
ACTION: Order.
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SUMMARY: The Commodity Futures Trading Commission (``Commission'' or
``CFTC''), subject to the conditions specified below, is:
granting an exemption to designated members of the MEFF Sociedad
Rectora de Productos Financieros Derivados de Renta Variable (the
``Exchange'' or ``MEFF Renta Variable'') of Spain from the
application of certain of the Commission's foreign futures and
option rules based on substituted compliance with certain comparable
regulatory and self-regulatory requirements of a foreign regulatory
authority.
This Order is issued pursuant to Commission rule 30.10, 17 CFR
30.10, which allows certain persons to petition the Commission for
exemption from the application of certain of the rules set forth in
Part 30, and authorizes the Commission to grant such petition if the
exemption is not otherwise contrary to the public interest or to the
purposes of the provisions from which exemption is sought.
EFFECTIVE DATE: May 8, 1997.
FOR FURTHER INFORMATION CONTACT: Jane C. Kang, Esq., or Robert H.
Rosenfeld, Esq., Division of Trading and Markets, Commodity Futures
Trading Commission, Three Lafayette Centre, 1155 21st Street, N.W.,
Washington, D.C. 20581. Telephone: (202) 418-5430.
SUPPLEMENTARY INFORMATION: On July 23, 1987, the Commission adopted
final rules governing the domestic offer and sale of commodity futures
and option contracts traded on or subject to the rules of a foreign
board of trade. 52 FR 28980 (August 5, 1987). These rules, which are
codified in Part 30 of the Commission's regulations, 17 CFR Part 30,
generally extend the Commission's existing customer protection
regulations for products offered or sold on contract markets in the
United States to foreign futures and option products 1 sold to
United States customers by imposing requirements with respect to
registration, disclosure, capital adequacy, protection of customer
funds, recordkeeping and reporting, sales practice and compliance
procedures that are generally comparable to those applicable to wholly
domestic transactions.
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\1\ Commission rule 30.1(a), 17 CFR 30.1(a), defines the term
``foreign futures'' as ``any contract for the purchase or sale of
any commodity for future delivery made, or to be made, on or subject
to the rules of any foreign board of trade.''
Commission rule 30.1(b), 17 CFR 30.1(b), defines the term
``foreign option'' as ``any transaction or agreement which is or is
held out to be of the character of, or is commonly known to the
trade as, an ``option,'' ``privilege,'' ``indemnity,'' ``bid,''
``offer,'' ``put,'' ``call,'' ``advance guaranty,'' or ``decline
guaranty,'' made on or subject to the rules of any foreign board of
trade.''
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In formulating a regulatory program to govern the offer and sale of
foreign futures and option products to United States customers, the
Commission, among other things, considers the potential
extraterritorial impact of such a program and the desirability of
avoiding duplicative regulation of firms engaged in international
business. Based upon these considerations, the Commission, as set forth
in Commission rule 30.10, determined to permit persons located outside
the United States and subject to a comparable regulatory structure in
the jurisdiction in which they are located to seek an exemption from
certain of the requirements imposed by the Part 30 rules based upon
substituted compliance with the comparable regulatory requirements
imposed by the foreign jurisdiction.
In issuing orders under rule 30.10, the Commission evaluates
whether the particular foreign regulatory program provides a basis for
permitting substituted compliance for purposes of exemptive relief
pursuant to Commission rule 30.10. The specific elements examined are
set forth in Appendix A to Part 30, ``Interpretative Statement With
Respect to the Commission's Exemptive Authority Under Section 30.10 of
Its Rules'' (``Appendix A''). 17 CFR Part 30, Appendix A. These
elements include: (1) Registration, authorization or other form of
licensing, fitness review or qualification of persons (both individuals
and firms) through which customer orders are solicited and accepted;
(2) minimum financial requirements for those persons who accept
customer funds; (3) protection of customer funds from misapplication;
(4) minimum sales practice standards, including the disclosure of the
risks of futures transactions; (5) recordkeeping and reporting
requirements; (6) procedures to audit for compliance with, and to take
action against those persons who violate, the requirements of the
program; and (7) the existence of appropriate information-sharing
arrangements. The Commission may apply additional conditions to ensure
that brokers licensed under other regulatory regimes are not permitted
to solicit U.S. customers while effectively evading U.S. requirements,
such as those relative to statutory disqualification.
Moreover, the Commission specifically stated in adopting rule 30.10
that no exemption based on substituted compliance of a general nature
would be granted unless the persons to whom the exemption is to be
applied: (1) Consent to jurisdiction in the United States and designate
an agent for service of process in the United States with respect to
transactions subject to Part 30 by filing a copy of the relevant agency
agreement with the National Futures Association (``NFA''); (2) agree to
make their books and records available in the United States to
Commission and Department of Justice representatives; and (3) notify
NFA of
[[Page 16688]]
the commencement or termination of business in the United States.2
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\2\ 52 FR 28980, 28981 and 29002.
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By letter dated July 28, 1995,3 the Exchange requested that
the Commission exempt under Commission rule 30.10 certain members of
the Exchange from compliance with Part 30's registration and other
requirements with respect to brokerage activities undertaken on behalf
of customers in the United States involving futures products and
options thereon authorized for sale to U.S. customers. Currently, such
products are the IBEX-35 Plus futures contracts and options thereon
4 traded on or subject to the rules of MEFF Renta Variable.5
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\3\ Letter dated July 9, 1995 from Jose Massa, Director General
and C.E.O., MEFF Renta Variable, to Jane C. Kang, CFTC Division of
Trading and Markets.
\4\ On August 8, 1994 the Commission's Office of the General
Counsel authorized the offer and sale in the United States of the
MEFF Renta Variable stock index futures on the IBEX-35. By letter
dated December 4, 1996, the Exchange notified the Commission's
Office of the General Counsel of certain modifications to the terms
and conditions of the IBEX-35 contract, which has been renamed the
IBEX-35 Plus (replacing the IBEX-35).
\5\ The Part 30 rules apply solely with respect to foreign
futures and foreign options, which are defined by reference to the
term ``foreign board of trade.'' See note 1 above. For purposes of
this Order, the term ``foreign board of trade'' shall mean any board
of trade, exchange or market located outside the United States, its
territories or possessions, whether incorporated or unincorporated,
where foreign futures or foreign options transactions are entered
into. Commission rule 1.3(ss), 17 C.F.R. 1.3(ss). Thus, contracts
that are traded on a market that has been designated as a contract
market pursuant to section 5a of the Commodity Exchange Act (CEA)
are not within the scope of this Order.
This order granting exemptive relief does not authorize the
offer or sale of any contract beyond the scope of the Part 30 rules
or otherwise inconsistent with the CEA. Thus, for example, the grant
of rule 30.10 relief does not authorize MEFF Renta Variable members
to offer or sell to U.S. customers any options on any individual
securities or any options directly on the IBEX-35 Plus Index which
are traded on the Exchange. Nor does this relief authorize the offer
and sale of any stock index product which has not been the subject
of a Commission staff no-action letter.
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ORDER: The Commission is hereby issuing the following order:
ORDER UNDER CFTC RULE 30.10 EXEMPTING DESIGNATED MEMBERS OF THE
MEFF RENTA VARIABLE FROM THE APPLICATION OF CERTAIN OF THE FOREIGN
FUTURES AND OPTION RULES THE LATER OF THIRTY DAYS AFTER PUBLICATION
OF THE ORDER HEREIN IN THE FEDERAL REGISTER OR AFTER THE FILING OF
RELEVANT CONSENTS BY MEMBERS OF THE EXCHANGE AND EXCHANGE UNDER THE
TERMS AND CONDITIONS OF THIS ORDER.
The Commission has reviewed the information and representations
contained in, among other things, the following submissions:
--Petition dated July 28, 1995;
--Letter dated November 26, 1996 and attachments from Jose Massa,
Director General and C.E.O., MEFF Renta Variable (``MEFF Renta
Variable, November 26, 1996'') which specifically incorporates by
reference the following material previously submitted in connection
with the application of MEFF Renta Fija for rule 30.10 relief and
confirming that any representations or undertakings made in those
documents will apply equally to MEFF Renta Variable:
--Petition dated May 14, 1993 from MEFF Renta Fija;
--The Spanish Securities Market Act 24/1988;
--Royal Decree 1814 Governing Official Futures and Options Markets;
--Royal Decree 629/1993 of May 3, 1993 ``Concerning the Regulations
Governing Participation in the Stock Markets and Obligatory
Registers of Transactions;''
--MEFF Renta Variable Articles of Association (1992);
--MEFF Renta Variable Rules and Regulations;
--Letters dated October 1, 8, and 15, 1993; December 23, 1993;
August 26, 1994; December 20, 1994; and January 31, 1995, from
Philip McBride Johnson, Skadden, Arps, Slate, Meagher & Flom,
counsel for the Exchange;
--Letters dated May 19, 1994 and September 28, 1994 from the
Comision Nacional del Mercado de Valores (``CNMV''); and
--Letter dated January 12, 1995 from MEFF Renta Fija.
The above letter dated November 26, 1996 further confirmed the
accuracy and application of statements concerning exchange
operations and regulation made in the Division's Memorandum dated
April 24, 1995 regarding MEFF Renta Fija's rule 30.10 application to
MEFF Renta Variable, and specifically undertook certain undertakings
with respect to information sharing.
--Letter dated February 29, 1996 and attachments, from the Comision
Nacional del Mercado de Valores (``CNMV, February 29, 1996''),
specifically confirming the continued applicability of all
representations previously made by the CNMV to the Division in
connection with the application of MEFF Renta Fija for rule 30.10
relief to the application of MEFF Renta Variable.
Based upon its review of the above supporting materials as set
forth in the Division's memorandum dated March 24, 1997, the Division's
memorandum dated April 24, 1995 in connection with MEFF Renta Fija
which, subject to certain clarifications submitted by MEFF Renta
Variable and the CNMV, continues to accurately describe the operation
of and regulatory structure applicable to MEFF Renta Variable,6
and subject to the conditions set forth below, the Commission has
determined to issue this Order which will become effective the later of
thirty days after publication of this Order in the Federal Register or
the filing of consents by members of the Exchange and the Exchange to
the terms and conditions of the Order herein.
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\6\ See MEFF Renta Variable, November 26, 1996, and CNMV,
February 29, 1996.
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Subject to the conditions set forth below, the Commission concludes
that the standards for relief set forth in Commission rule 30.10 and,
in particular, Appendix A thereof, have generally been satisfied and
that compliance with the SMA, R.D. 1814, R.D. 629 and MEFF Renta
Variable and CNMV rules may be substituted for compliance with certain
sections of the Act as more particularly set forth herein. By this
Order, the Commission hereby exempts, subject to specified conditions,
those firms identified to the Commission as eligible for the rule 30.10
relief granted herein from registration with the Commission based upon
substituted compliance by such firms with the applicable statutes and
relevant Exchange and other rules in effect in Spain.
This determination to permit substituted compliance is based on,
among other things, the Commission's finding that the regulatory scheme
governing the persons trading on the Exchange who would be exempted
hereunder provides:
(1) A system of qualification or licensing of firms and persons
who deal in transactions subject to regulation under Part 30 that
includes, for example, criteria and procedures for granting,
monitoring, suspending and revoking licenses, and provisions for
requiring and obtaining access to information about licensees;
(2) Financial requirements for licensees;
(3) A system for the protection of customer funds that applies
to all customers and which requires the separate accounting for such
funds, augmented by funds designed to compensate customers who have
suffered a loss as a result of fraud or insolvency or other failure
of an Exchange member;
(4) Recordkeeping and reporting requirements pertaining to
financial and trade information including, without limitation, order
tickets, trade confirmations, customer account statements,
customers' deposit records, and accounting records for customer and
proprietary trades;
(5) Sales practice standards for licensees which include, for
example, required disclosures to prospective customers and
prohibitions on (a) certain representations, (b) conflicts of
interest, and (c) improper trading activities;
(6) Procedures to audit for compliance with, and to redress
violations of, customer protection and sales practice requirements
including, without limitation, a surveillance program and the
existence of broad powers to conduct investigations and to impose
sanctions; and
(7) Mechanisms for sharing information between the Exchange and
the CNMV and the Commission on an ``as needed'' basis
[[Page 16689]]
including, without limitation, confirmation data, data necessary to
trace funds, position data, data on firms' standing to do business
and financial condition, and mechanisms for cooperating with the
Commission in inquiries, compliance matters, investigations and
enforcement proceedings.7
\7\ The Exchange and its regulator, CNMV, have provided
assurances to the Commission, subject to certain agreed upon
principles, regarding the availability of information relevant to
Part 30 on an ``as needed'' basis. See MEFF Renta Variable, November
26, 1996; CNMV, February 29, 1996, and letter May 19, 1994 from
Eudald Canadell, CNMV, to Andrea M. Corcoran, CFTC (confirming that
information may be shared between the CFTC and the CNMV pursuant to
the Memorandum of Understanding on Mutual Assistance and Exchange of
Information of October 1992).
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This Order does not provide an exemption from any provision of the
Act or regulations thereunder not specified herein, for example,
without limitation, the antifraud provision in Commission rule 30.9, 17
CFR 30.9, or the disclosure provisions of Commission rules 1.55, 30.6,
and 33.7, 17 CFR 1.55, 30.6 and 33.7, including the requirements of
rule 1.55(f), 30.6(e), and 33.7(f).8 Moreover, the relief granted
is limited to brokerage activities undertaken on behalf of customers in
the United States with respect to transactions on or subject to the
rules of MEFF Renta Variable, and which U.S. customers may trade.
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\8\ These rules essentially provide that delivery of a mandated
risk disclosure statement does not eliminate any obligation under
the Act to disclose all material information to existing or
prospective customers even if the information is not specifically
required by the applicable risk disclosure rule.
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The relief does not extend to rules or regulations relating to
trading, directly or indirectly, on United States exchanges. For
example, such a firm trading in United States markets for its own
account would be subject to the Commission's large trader reporting
requirements. See, e.g., 17 CFR Part 18. Similarly, if such a firm were
carrying a position on a United States exchange on behalf of foreign
clients, it would be subject to the reporting requirements applicable
to foreign brokers. See, e.g., 17 CFR Parts 17 and 21. The relief
herein does not apply to firms that solicit United States customers for
transactions on United States markets.
The eligibility of any firm to seek rule 30.10 relief under this
exemptive Order is subject to the following conditions:
(1) The regulatory or self-regulatory organization responsible
for monitoring the compliance of such firm with the regulatory
requirements described in the rule 30.10 petition must represent in
writing to the CFTC that:
(a) Each firm for which relief is sought is registered, licensed
or authorized, as appropriate, and is otherwise in good standing
under the standards in place in Spain; such firm is engaged in
business with customers located in Spain as well as in the United
States; and, such firm would not be statutorily disqualified from
registration under section 8a(2) of the CEA, 7 U.S.C. 12(a)(2);
(b) It will monitor firms to which relief is granted for
compliance with the regulatory requirements for which substituted
compliance is accepted and will promptly notify the Commission or
NFA of any change in status of a firm which would affect its
continued eligibility for the exemption granted hereunder, including
the termination of its activities in the United States;
(c) All transactions on the Exchange with respect to customers
resident in the United States will be made on or subject to the
rules of the Exchange and the Commission will receive prompt notice
of all material changes to MEFF Renta Variable rules, the SMA and
other laws relevant to futures and options (e.g., Royal Decree 1814
and Royal Decree 629);
(d) Customers resident in the United States will be provided no
less stringent regulatory protection than Spanish customers under
all relevant provisions of Spanish law; and
(e) It will cooperate with the Commission with respect to any
inquiries concerning any activity subject to regulation under the
Part 30 rules, including sharing the information specified in
Appendix A to the Part 30 rules on an ``as needed'' basis in
accordance with the agreed information sharing arrangement and will
use its best efforts to notify the Commission if it becomes aware of
any information which in its judgment affects the financial or
operational viability of a Spanish-domiciled firm doing business in
the United States under the exemption granted by this Order.
(2) Each firm seeking rule 30.10 relief hereunder must apply in
writing whereby it:
(a) Consents to jurisdiction in the United States under the Act
and files a valid and binding appointment of an agent in the United
States for service of process in accordance with the requirements
set forth in Commission rule 30.5, 17 CFR 30.5;
(b) Acknowledges that it can be required by the Exchange to
provide the Exchange immediate access to its books and records
related to transactions under Part 30 required to be maintained
under the applicable laws and Exchange rules in effect in Spain and
that the Exchange will cooperate in providing access to such books
and records to the Commission in accordance with the agreed upon
information sharing arrangement;
(c) Represents that no principal, and no employee who solicits
or accepts orders from United States customers, would be
disqualified from directly applying to do business in the United
States under section 8a(2) of the CEA, 7 USC 12a(2), and consents to
notify the Commission promptly of any change in that representation
based on a change in control as generally defined in Commission rule
3.32, 17 CFR 3.32;
(d) Consents that all futures or options transactions for
customers located in the United States will be undertaken from a
location in Spain (except as otherwise permitted by the Commission)
solely with respect to transactions on or subject to the rules of
MEFF Renta Variable, and which U.S. customers may trade;
(e)(1) If a Clearing Member of the Exchange which carries the
accounts of customers located in the United States: agrees to
maintain funds equivalent to the aggregate ``secured amount''
(described in Commission rule 1.3(rr), 17 CFR 1.3(rr)), for all
United States customers in a separate account as set forth in
Commission rule 30.7, 17 CFR 30.7, and to treat those funds in the
manner described by that rule;
(e)(2) If a Non-Clearing Member of the Exchange: agrees to
comply with relevant Spanish laws and Exchange rules prohibiting
them from accepting or otherwise handling customer funds;
(f) Agrees to provide customers with account statements on at
least a monthly basis;
(g) Discloses the identity of each subsidiary or affiliate
domiciled in the United States with a related business (e.g., banks
and broker/dealer affiliates) and provides a brief description of
such subsidiary's or affiliate's principal business in the United
States;
(h)(1) Consents to participate in any NFA arbitration program
which offers a procedure for resolving customer disputes on the
papers where such disputes involve representations or activities
with respect to transactions under Part 30, and consents to notify
customers resident in the United States of the availability of such
a program: Provided, however, that the firm may require its
customers resident in the United States to execute the consent
attached hereto as Exhibit A concerning the exhaustion of certain
mediation procedures made available by the Exchange prior to
bringing an NFA arbitration proceeding; and Provided further that
the firm must undertake to provide the customer with information
concerning how to commence such procedures pursuant to the consent
attached hereto as Exhibit A;
(h)(2) Provided, however, that until the Exchange adopts a
procedure for an ``on the papers'' hearing applicable to all
Exchange arbitrations, consents to notify such customers that if
they elect Exchange arbitration, they or their agent could be
required to appear personally at a hearing, and if the customer
elects NFA arbitration, consents to participate in such proceeding
even in circumstances where the dispute arises primarily out of
delivery, clearing, settlement or floor practices;
(i) Undertakes to comply with the applicable provisions of
Spanish law and Exchange and CNMV rules which form the basis upon
which this exemption from certain provisions of the Act is granted;
and
(j) Agrees to provide to any U.S. customers either the generic
risk disclosure statement approved by the Commission under rule
1.55(c) or, if a generic statement is not used,9 in the
alternative the risk disclosure
[[Page 16690]]
statements mandated by Commission rules 30.6(a) [i.e., 1.55(a)] and
33.7 (see rule 30.6(d)), Commission rule 190.10 (c)(2) and
applicable Commission orders, as appropriate.10
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\9\ All firms operating under rule 30.10 relief may elect to
provide the generic risk disclosure statement approved by the CFTC
in 1994, in lieu of separately providing the disclosure statements
required by CFTC rules 1.55, 33.7, 190.10(c) and the special
disclosures required for margining of option premiums. See 59 FR
34376 (July 5, 1994).
\10\ See, e.g., CFTC Advisory No. 90-1 [1987-1990 Transfer
Binder] Comm. Fut. L. Rep. (CCH) para. 24,597 (disclosure statement
related to the deferred payment of option premiums).
Upon filing of the notice required under paragraph (1)(b) as to any
such firm, the rule 30.10 relief granted by this Order may be suspended
immediately as to that firm. That suspension will remain in effect
pending further notice by the Commission, or the Commission's designee,
to the firm and the Exchange and/or any applicable regulatory or self-
regulatory organization.
Any material changes or omissions in the facts and circumstances
pursuant to which this Order is granted might require the Commission to
reconsider its finding that the standards for issuance of an order
under Commission rule 30.10, including Appendix A of rule 30.10, have
generally been satisfied.
Further, if experience demonstrates that the continued
effectiveness of this Order in general, or with respect to a particular
firm or product, would be contrary to public policy or the public
interest, or that the systems in place for the exchange of information
or other circumstances do not warrant continuation of the exemptive
relief granted herein, the Commission may condition, modify, suspend,
terminate, withhold as to a specific firm or product, or otherwise
restrict the exemptive relief granted in this Order, as appropriate, on
its own motion. If necessary, provisions will be made for servicing
existing client positions.
List of Subjects in 17 CFR Part 30
Commodity futures, Commodity options, Foreign futures and options.
Accordingly, 17 CFR part 30 is amended as set forth below:
PART 30--FOREIGN FUTURES AND FOREIGN OPTIONS TRANSACTIONS
1. The authority citation for part 30 continues to read as follows:
Authority: Secs. 2(a)(1)(A), 4, 4c, and 8a of the Commodity
Exchange Act, 7 U.S.C. 2, 6, 6c, and 12a.
2. Appendix C to part 30 is amended by adding the following entry
to read as follows:
Appendix C--Foreign Petitioners Granted Relief From the Application of
Certain of the Part 30 Rules Pursuant to Sec. 30.10
* * * * *
Firms designated by the MEFF Sociedad Rectora de Productos
Financieros Derivados de Renta Variable (``MEFF Renta Variable.'')
FR date and citation: ________________, 1997,
________________FR________________.
Issued in Washington, D.C., on April 1, 1997.
Jean A. Webb,
Secretary to the Commission.
Exhibit A--Form of Consent to Undertake Mediation Prior to NFA
Arbitration
In the event that a dispute arises between you [name of customer
resident in the United States] and [name of MEFF Renta Variable
member firm] with respect to transactions subject to Part 30 of the
Commodity Futures Trading Commission's rules, various forums may be
available for resolving the dispute, including courts of competent
jurisdiction in the United States and Spain and arbitration programs
made available both in the United States and Spain.
In the event you wish to initiate an arbitration proceeding
against this firm to resolve such dispute under the applicable rules
of the National Futures Association (``NFA'') in the United States,
you hereby consent that you will first commence mediation in
accordance with such procedures as may be made available by the MEFF
Sociedad Rectora de Productos Financieros Derivados de Renta
Variable (``MEFF Renta Variable'' or ``Exchange''), information on
which is provided to you herewith. The outcome of such MEFF Renta
Variable mediation is nonbinding. You may subsequently accept this
resolution, or you may proceed either to binding arbitration under
the rules of the MEFF Renta Variable or to binding arbitration in
the United States under the rules of NFA. If you accept the mediated
resolution or elect to proceed to arbitration, or to any other form
of binding resolution under the rules of the Exchange, you will be
precluded from subsequently initiating an arbitration proceeding at
NFA.
You may initiate an NFA arbitration proceeding upon receipt of
documentation from MEFF Renta Variable:
(1) Evidencing completion of the mediation process and reminding
you of your right of access to NFA's arbitration proceeding; or
(2) Representing that more than nine months have elapsed since
you commenced the mediation process and that such process is not yet
complete and reminding you of your right of access to NFA's
arbitration proceeding.
The documentation referred to above must be presented to NFA at
the time you initiate the NFA arbitration proceeding. NFA will
exercise its discretion not to accept your demand for arbitration
absent such documentation.
By signing this consent you are not waiving any other right to
any other legal remedies available under the law.
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Customer
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Date
[FR Doc. 97-8872 Filed 4-7-97; 8:45 am]
BILLING CODE 6351-01-P
