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7 U.S. Code § 7a-1. Derivatives clearing organizations
(a) Registration requirement
(1) In generalExcept as provided in paragraph (2), it shall be unlawful for a derivatives clearing organization, directly or indirectly, to make use of the mails or any means or instrumentality of interstate commerce to perform the functions of a derivatives clearing organization with respect to—
(A) a contract of sale of a commodity for future delivery (or an option on the contract of sale) or option on a commodity, in each case, unless the contract or option is—
(i)
excluded from this chapter by subsection (a)(1)(C)(i), (c), or (f) of section 2 of this title; or
(ii)
a security futures product cleared by a clearing agency registered with the Securities and Exchange Commission under the Securities Exchange Act of 1934 (15 U.S.C. 78a et seq.); or
(B)
a swap.
(2) Exception
Paragraph (1) shall not apply to a derivatives clearing organization that is registered with the Commission.
(b) Voluntary registration
A person that clears 1 or more agreements, contracts, or transactions that are not required to be cleared under this chapter may register with the Commission as a derivatives clearing organization.
(c) Registration of derivatives clearing organizations
(1) Application
A person desiring to register as a derivatives clearing organization shall submit to the Commission an application in such form and containing such information as the Commission may require for the purpose of making the determinations required for approval under paragraph (2).
(2) Core principles for derivatives clearing organizations
(A) Compliance
(i) In general
To be registered and to maintain registration as a derivatives clearing organization, a derivatives clearing organization shall comply with each core principle described in this paragraph and any requirement that the Commission may impose by rule or regulation pursuant to section 12a(5) of this title.
(ii) Discretion of derivatives clearing organization
Subject to any rule or regulation prescribed by the Commission, a derivatives clearing organization shall have reasonable discretion in establishing the manner by which the derivatives clearing organization complies with each core principle described in this paragraph.
(B) Financial resources
(i) In general
Each derivatives clearing organization shall have adequate financial, operational, and managerial resources, as determined by the Commission, to discharge each responsibility of the derivatives clearing organization.
(ii) Minimum amount of financial resourcesEach derivatives clearing organization shall possess financial resources that, at a minimum, exceed the total amount that would—
(I)
enable the organization to meet its financial obligations to its members and participants notwithstanding a default by the member or participant creating the largest financial exposure for that organization in extreme but plausible market conditions; and
(II)
enable the derivatives clearing organization to cover the operating costs of the derivatives clearing organization for a period of 1 year (as calculated on a rolling basis).
(C) Participant and product eligibility
(i) In generalEach derivatives clearing organization shall establish—
(I)
appropriate admission and continuing eligibility standards (including sufficient financial resources and operational capacity to meet obligations arising from participation in the derivatives clearing organization) for members of, and participants in, the derivatives clearing organization; and
(II)
appropriate standards for determining the eligibility of agreements, contracts, or transactions submitted to the derivatives clearing organization for clearing.
(ii) Required procedures
Each derivatives clearing organization shall establish and implement procedures to verify, on an ongoing basis, the compliance of each participation and membership requirement of the derivatives clearing organization.
(iii) RequirementsThe participation and membership requirements of each derivatives clearing organization shall—
(I)
be objective;
(II)
be publicly disclosed; and
(III)
permit fair and open access.
(D) Risk management
(i) In general
Each derivatives clearing organization shall ensure that the derivatives clearing organization possesses the ability to manage the risks associated with discharging the responsibilities of the derivatives clearing organization through the use of appropriate tools and procedures.
(ii) Measurement of credit exposureEach derivatives clearing organization shall—
(I)
not less than once during each business day of the derivatives clearing organization, measure the credit exposures of the derivatives clearing organization to each member and participant of the derivatives clearing organization; and
(II)
monitor each exposure described in subclause (I) periodically during the business day of the derivatives clearing organization.
(iii) Limitation of exposure to potential losses from defaultsEach derivatives clearing organization, through margin requirements and other risk control mechanisms, shall limit the exposure of the derivatives clearing organization to potential losses from defaults by members and participants of the derivatives clearing organization to ensure that—
(I)
the operations of the derivatives clearing organization would not be disrupted; and
(II)
nondefaulting members or participants would not be exposed to losses that nondefaulting members or participants cannot anticipate or control.
(iv) Margin requirements
The margin required from each member and participant of a derivatives clearing organization shall be sufficient to cover potential exposures in normal market conditions.
(v) Requirements regarding models and parametersEach model and parameter used in setting margin requirements under clause (iv) shall be—
(I)
risk-based; and
(II)
reviewed on a regular basis.
(E) Settlement proceduresEach derivatives clearing organization shall—
(i)
complete money settlements on a timely basis (but not less frequently than once each business day);
(ii)
employ money settlement arrangements to eliminate or strictly limit the exposure of the derivatives clearing organization to settlement bank risks (including credit and liquidity risks from the use of banks to effect money settlements);
(iii)
ensure that money settlements are final when effected;
(iv)
maintain an accurate record of the flow of funds associated with each money settlement;
(v)
possess the ability to comply with each term and condition of any permitted netting or offset arrangement with any other clearing organization;
(vi)
regarding physical settlements, establish rules that clearly state each obligation of the derivatives clearing organization with respect to physical deliveries; and
(vii)
ensure that each risk arising from an obligation described in clause (vi) is identified and managed.
(F) Treatment of funds
(i) Required standards and procedures
Each derivatives clearing organization shall establish standards and procedures that are designed to protect and ensure the safety of member and participant funds and assets.
(ii) Holding of funds and assets
Each derivatives clearing organization shall hold member and participant funds and assets in a manner by which to minimize the risk of loss or of delay in the access by the derivatives clearing organization to the assets and funds.
(iii) Permissible investments
Funds and assets invested by a derivatives clearing organization shall be held in instruments with minimal credit, market, and liquidity risks.
(G) Default rules and procedures
(i) In generalEach derivatives clearing organization shall have rules and procedures designed to allow for the efficient, fair, and safe management of events during which members or participants—
(I)
become insolvent; or
(II)
otherwise default on the obligations of the members or participants to the derivatives clearing organization.
(ii) Default proceduresEach derivatives clearing organization shall—
(I)
clearly state the default procedures of the derivatives clearing organization;
(II)
make publicly available the default rules of the derivatives clearing organization; and
(III) ensure that the derivatives clearing organization may take timely action—
(aa)
to contain losses and liquidity pressures; and
(bb)
to continue meeting each obligation of the derivatives clearing organization.
(H) Rule enforcementEach derivatives clearing organization shall—
(i) maintain adequate arrangements and resources for—
(I)
the effective monitoring and enforcement of compliance with the rules of the derivatives clearing organization; and
(II)
the resolution of disputes;
(ii)
have the authority and ability to discipline, limit, suspend, or terminate the activities of a member or participant due to a violation by the member or participant of any rule of the derivatives clearing organization; and
(iii)
report to the Commission regarding rule enforcement activities and sanctions imposed against members and participants as provided in clause (ii).
(I) System safeguardsEach derivatives clearing organization shall—
(i)
establish and maintain a program of risk analysis and oversight to identify and minimize sources of operational risk through the development of appropriate controls and procedures, and automated systems, that are reliable, secure, and have adequate scalable capacity;
(ii) establish and maintain emergency procedures, backup facilities, and a plan for disaster recovery that allows for—
(I)
the timely recovery and resumption of operations of the derivatives clearing organization; and
(II)
the fulfillment of each obligation and responsibility of the derivatives clearing organization; and
(iii)
periodically conduct tests to verify that the backup resources of the derivatives clearing organization are sufficient to ensure daily processing, clearing, and settlement.
(J) Reporting
Each derivatives clearing organization shall provide to the Commission all information that the Commission determines to be necessary to conduct oversight of the derivatives clearing organization.
(K) RecordkeepingEach derivatives clearing organization shall maintain records of all activities related to the business of the derivatives clearing organization as a derivatives clearing organization—
(i)
in a form and manner that is acceptable to the Commission; and
(ii)
for a period of not less than 5 years.
(L) Public information
(i) In general
Each derivatives clearing organization shall provide to market participants sufficient information to enable the market participants to identify and evaluate accurately the risks and costs associated with using the services of the derivatives clearing organization.
(ii) Availability of information
Each derivatives clearing organization shall make information concerning the rules and operating and default procedures governing the clearing and settlement systems of the derivatives clearing organization available to market participants.
(iii) Public disclosureEach derivatives clearing organization shall disclose publicly and to the Commission information concerning—
(I)
the terms and conditions of each contract, agreement, and transaction cleared and settled by the derivatives clearing organization;
(II)
each clearing and other fee that the derivatives clearing organization charges the members and participants of the derivatives clearing organization;
(III)
the margin-setting methodology, and the size and composition, of the financial resource package of the derivatives clearing organization;
(IV)
daily settlement prices, volume, and open interest for each contract settled or cleared by the derivatives clearing organization; and
(V)
any other matter relevant to participation in the settlement and clearing activities of the derivatives clearing organization.
(M) Information-sharingEach derivatives clearing organization shall—
(i)
enter into, and abide by the terms of, each appropriate and applicable domestic and international information-sharing agreement; and
(ii)
use relevant information obtained from each agreement described in clause (i) in carrying out the risk management program of the derivatives clearing organization.
(N) Antitrust considerationsUnless necessary or appropriate to achieve the purposes of this chapter, a derivatives clearing organization shall not—
(i)
adopt any rule or take any action that results in any unreasonable restraint of trade; or
(ii)
impose any material anticompetitive burden.
(O) Governance fitness standards
(i) Governance arrangementsEach derivatives clearing organization shall establish governance arrangements that are transparent—
(I)
to fulfill public interest requirements; and
(II)
to permit the consideration of the views of owners and participants.
(ii) Fitness standardsEach derivatives clearing organization shall establish and enforce appropriate fitness standards for—
(I)
directors;
(II)
members of any disciplinary committee;
(III)
members of the derivatives clearing organization;
(IV)
any other individual or entity with direct access to the settlement or clearing activities of the derivatives clearing organization; and
(V)
any party affiliated with any individual or entity described in this clause.
(P) Conflicts of interestEach derivatives clearing organization shall—
(i)
establish and enforce rules to minimize conflicts of interest in the decision-making process of the derivatives clearing organization; and
(ii)
establish a process for resolving conflicts of interest described in clause (i).
(Q) Composition of governing boards
Each derivatives clearing organization shall ensure that the composition of the governing board or committee of the derivatives clearing organization includes market participants.
(R) Legal risk
Each derivatives clearing organization shall have a well-founded, transparent, and enforceable legal framework for each aspect of the activities of the derivatives clearing organization.