The CFTC s Implications for Electric Cooperatives

Transcription

1 NRECA Web Conferences The CFTC s Implications for Electric Cooperatives July 12, 2012 For Technical Support If you re listening over the phone, please press *0. If you re listening through your computer speakers, nreca_assist@commpartners.com. 2 How to Submit Your Questions Online Question: Where can I get more information? Response: Go to for more details. Step 1: Type in your question. Step 2: Click on the Send button. 3

2 To Download the Program Files 1. Click here in the Links box to open the presentation slides or handout. 2. Click on an icon to print or save the file. 4 Today s Speaker Russ Wasson NRECA Director of Tax, Finance, and Accounting Policy 5 Questions We ll Address Why was NRECA concerned with Dodd-Frank Wall Street Reform and Consumer Protection Act? Who is the CFTC? What do we know today? What are the upcoming important rulemakings? What should your co-op be preparing to do now? 6

3 Background: Economic Crisis of What Did Congress Do? Dodd-Frank Wall Street Reform and Consumer Protection Act Goals: Make U.S. financial system more transparent and accountable Avoid another economic crisis Ensure a system is in place to protect taxpayers money 8 Dodd-Frank Wall Street Reform and Consumer Protection Act Source: Deloitte 9

4 Worst Case Scenario for Co-ops Regulatory oversight we re hoping for Potential regulatory oversight 10 Commodity Futures Trading Commission (CFTC) Dodd-Frank Act authorizes the U.S. Commodity Futures Trading Commission (CFTC) to: Regulate over-the-counter commodity swaps Increase transparency and improve pricing in the derivatives marketplace Lower risk to the American public from interconnected and toobig-to-fail financial institutions In August 2010, CFTC began issuing proposed rules and soliciting public comment. The Commission is currently finalizing Dodd-Frank rules. 11 CFTC Commissioners Chairman Gary Gensler Bart Chilton Mark P. Wetjen Jill E. Sommers Scott D O'Malia 12

5 What Does the CFTC Regulate?? s 1990s 2000s Today CFTC Most futures trading was in agricultural sector CFTC began regulating financial futures but exempted or excluded swaps and energy transactions CFTC s Oversight Expanded Now there is a vast array potential oversight over contracts across all industries and governments 13 Why Would CFTC Regulate Electric Co-ops? All electric utilities, including co-ops and munis and the federal power agencies individually and sometimes together, participate in energy commodity transactions intended to hedge or mitigate commercial risks: These transaction often involve the delivery of electric power or fuel, as well as renewable energy credits and emission allowances. They typically do not involve derivatives or commodities not used for generating, transmitting or distributing power. 14 Why We Were Concerned Dodd-Frank amended the Commodity Exchange Act (CEA) to provide that No person shall offer to enter into, enter into or confirm the execution of, any transaction involving any commodity regulated under this chapter which is the character of or is commonly known to the trade as an option, privilege, indemnity, bid, offer, put, call, advance guaranty or decline guaranty contrary to any rule, regulation, or order of the Commission prohibiting any such transaction under such terms and conditions as the Commission shall prescribe. Any such rule, order or regulation may be made only after notice and opportunity for hearing, and the Commission may set different terms and conditions for different markets. 15

6 Why We Were Concerned Through this provision, Congress has given the CFTC jurisdiction and plenary rulemaking authority over all commodity option transactions. The definition of swap in the Dodd-Frank Act includes commodity options (whether or not traded on a Designated Contract Market). The final rule on Products Definition will define the term swap and will determine whether a commodity option or a nonfinancial commodity forward transaction with optionality is included in the swap definition. Virtually all transactions entered into by electric utilities (including cooperatives) contain embedded optionality. 16 Why We Were Concerned We were concerned that the CFTC would consider our most basic contracts, such as the all requirements contracts, to be swaps and that they would be heavily regulated. We were also concerned that we may be subject to mandatory clearing and exchange trading of our contracts. We were concerned that the CFTC might impose regulatory capital and margin requirements on all swaps, including bilateral energy, transmission and capacity contracts. We were concerned that the CFTC would impose stringent and expensive recordkeeping and reporting requirements (i.e., 84 data elements within 48 hours). 17 Why We Were Concerned We were concerned that the CFTC might consider electric cooperatives to be swap dealers. We were concerned that the CFTC might consider some electric cooperatives to be major swap participants. We were concerned that some electric cooperatives would not be considered eligible contract participants. 18

7 Why We Were Concerned We were concerned because the CFTC originally proposed to treat commodity options (which are for hedging the commercial risks of nonfinancial commodities and are intended to be physically settled) as swaps. As you will see later in the presentation, the CFTC did determine commodity options to be swaps, but offered some relief in an interim final rule from the more onerous regulatory requirements that may applicable to financially settled swaps in the over-the-counter market. 19 Why We Were Concerned The CFTC has waited two years to define the term swap. The Product Definitions rulemaking is actually the foundational, cornerstone rulemaking The outcome of this rulemaking will be the benchmark for how much CFTC regulation our industry will face. 20 Proactive Steps Taken by NRECA 21

8 Proactive Steps Taken by NRECA Since August 2010, NRECA has participated in two coalitions: A coalition of not-for-profit energy end users including APPA and LPPC (with assistance from ACES Power Marketing and others) A broader industry coalition with EEI and EPSA During this time NRECA has filed 34 comment letters on a variety of proposed rulemakings which could have an impact on our industry. Primary areas of concern: Product Definitions Commodity Options Entity Definitions End User Exception Recordkeeping and Reporting Capital and Margin 22 Some of the Proactive Steps Taken by NRECA Comments on Definitions ANOPR: Certain Definitions (Sept. 20, 2010) Pre-NOPR Comments on Regulatory Capital and Margin Requirements (Dec. 2010) Comments on the NOPR on Position Reports for Physical Commodity Swaps (Dec. 2010) Pre-NOPR Comments on End User Exception Task Force for Title VII (Dec. 2010) Pre-NOPR Comments on Interim Final Rule on Data Recordkeeping and Title VII (Nov. 2010) Comments on Whistleblower Provisions (Feb. 4, 2011) Comments on Swap Data Recordkeeping and Reporting (Feb 7, 2011) Comments on Further Definition of Swap Dealer, Major Swap Participant and Eligible Contract Participant (Feb. 22, 2011) Comments on End User Exception to the Mandatory Clearing of Swaps (Feb. 22, 2011) Comments on Restrictions on Proprietary Trading and Certain Interests in and Relationships with Hedge Funds and Private Equity Funds (Volcker Act SEC, OCC, Federal Reserve Board, FDIC) (Feb. 13, and April 16, 2012) Application Under 4(c)(6) of the CEA to exempt transactions between electric cooperatives and municipal and federal utilities (June 8, 2012) 23 What We Know Today The final Entities Definition rule was published on May 23, The Entity Definition Final Rule defines an SD as any person who: (i) holds itself out as a dealer in swaps, (ii) makes a market in swaps, (iii) regularly enters into swaps with counterparties as an ordinary course of business for its own account (as part of a regular business), or (iv) engages in activity causing itself to be commonly known in the trade as a dealer or market maker in swaps. 24

9 What We Know Today Examples of activities that are part of a regular business, and therefore indicative of swap dealing, are: entering into swaps to satisfy the business or risk management needs of the counterparty, maintaining a separate profit and loss statement for swap dealing activity, or allocating staff and resources to dealer-type activities No electric cooperative would be likely to meet this test since we hedge commercial risk, we don t deal, and we don t have a separate business to accommodate the demand for swaps from the public. 25 What We Know Today Although the Entities Definition final rule provided an exception from the swap dealer concept for transactions between a cooperative and its members, the CFTC limited this exclusion to agricultural producer cooperatives and federally chartered cooperative financial institutions. It is a distinction without a difference since no electric cooperative would likely be deemed to be a swap dealer under other provisions of the rules. 26 What We Know Today Additionally, the final rule provided that entities could conduct what would otherwise be considered to be swap dealing activities up to a de minimis threshold of $8 billion annually during a three year phase-in period and $3 billion per year thereafter. We are not concerned that the CFTC would do anything to intentionally harm us, but we were and are concerned they may do something inadvertently because they do not sufficiently understand our industry. 27

10 What We Know Today As an example of an inadvertent outcome, in the final rule on Entity Definitions, the CFTC established a de minimis sub-threshold for special entities (governments and political subdivisions) of $25 million (as compared with the $8 billion and $3 billion threshold for all other counterparties note that special entity groups have discussed asking the CFTC to change this threshold in the future). This would have a very negative impact on municipal utilities as their counterparties would not want to enter into transactions subject to the $25 million sub-threshold which might subject the counterparty to being required to register with the CFTC as a swap dealer. APPA is currently working with the CFTC to find a resolution to increase the sub-threshold for municipal utilities. 28 Our 4(c)(6) Exemption Request On June 8, 2012, NRECA joined with APPA, LPPC, TAPS, and Bonneville Power Administration in filing a request under section 4(c)(6) of the Commodity Exchange Act to exempt transactions between electric cooperatives and municipal utilities and federal power agencies from CFTC jurisdiction and oversight. We would still be subject to the CFTC anti-fraud and market manipulation rules. 29 Our 4(c)(6) Exemption Request We want the CFTC to give us a categorical exclusion based on our entities, but they have raised questions about whether a broad exclusion would be in the public interest. We included in our request descriptions of the following transaction types: Electric Energy Delivered Generation Capacity Transmission Services Fuel Delivered Cross Commodity Transactions Other Goods and Services Agreements, Contracts and Transactions Environmental Rights Allowances and Attributes We excluded interest rate, credit, equity or currency commodity transactions since they are not electric operations related. 30

11 What Are the Potential Impacts? CFTC 31 What Are the Pending Impacts? The final rule on Product Definitions will have a major impact on how broadly electric cooperatives and our transactions may be regulated by the CFTC. Our 4(c)(6) application to exempt transactions between 201(f) entities (including the few non 201(f) coops) should shelter most of our transactions with other notfor-profit electric entities from CFTC regulation and oversight. The Whistleblower final rule which was issued on August 25, 2011 applies to all electric cooperatives. 32 What Are the Pending Impacts? Our transactions with other investor-owned electric and gas utilities, gas producers, coal producers and financial entities may still be subject to CFTC regulatory oversight. The Dodd-Frank statute provides for the possibility of an exemption for RTO transactions (which is currently in process at the CFTC), FERC tariffed products, and transactions subject to state or local regulation. We started working with EEI and EPSA on the FERC tariffed products exemption application, but EEI suspended the effort pending the outcome of the Product Definition rules and the RTO exemption request. 33

12 What Are the Pending Impacts? Potential impact of the 4(c)(6) exemption: Transactions between and among electric cooperatives and municipal utilities and the federal power agencies may be subject to much less regulatory oversight and recordkeeping and reporting requirements. We have asked in our application that we be allowed to use our existing record retention policies with regard to these transactions. We have asked that these transactions have a minimal if any reporting burden. These transactions would be exempt from all CFTC jurisdiction except for possibly the whistleblower and anti-fraud and anti-market manipulation rules. 34 What Are the Pending Impacts? Potential impact of the FERC tariffed products exemption: Transactions between electric cooperatives and investor-owned utilities or other FERC tariffed entities could be subject to reduced CFTC jurisdiction and oversight. There may be reduced recordkeeping and reporting requirements for such transactions. Such transactions would likely still be subject to the CFTC anti-fraud and market manipulation rules. We will be working with EEI and EPSA as well as APPA and LPPC on this exemption which we will undertake after the Products Definition rules are finalized. 35 What Are the Pending Impacts? Potential impact of the RTO exemption: Certain RTO products such as FTRs may not be considered to be pure swaps. The RTO may not be deemed to be a clearinghouse or designated contract market thus having less CFTC oversight. Many of the RTO transactions may be covered under the FERC tariffed products exemption in any event. The RTOs have not shared the outcome of their discussions with the CFTC openly perhaps because many of the EEI members were not happy with the way the discussions were going. 36

13 What Are the Pending Impacts? The end user exception final rule may be approved on July 10 th and available soon thereafter. Recordkeeping and Reporting for swaps including those categories of swaps with reduced regulatory oversight including physical forward contracts with physical settlement (such as the all requirements contract). The final rules on capital and margin have yet to be issued (the CFTC and the banking regulators issued separate proposed rules). 37 Worst Case Scenario We would have to post capital and margin with all of our contract counterparties regardless of whether or not they were swap dealers or financial institutions. All of our transactions would be subject to the strict part 45 recordkeeping and reporting requirements which would have us report 84 data elements for each transaction within 48 hours. (Substantial IT infrastructure investment and additional staff required.) In a restrictive interpretation of the end user exception, certain of our transactions would be required to be cleared and traded on a swap execution facility or on a designated contract market. 38 Commodity Option Final Rule Section 721 of the Dodd-Frank Act added new section 1a(47) to the Commodity Exchange Act, defining swap to include not only any agreement, contract, or transaction commonly known as, among other things, a commodity swap, but also [an] option of any kind that is for the purchase or sale, or based on the value, of 1 or more * * * commodities. In an interim final rule issued in April 2012, the CFTC incorporated a new section providing an exemption from certain swaps regulations for trade options on exempt and agricultural commodities as between certain commercial and sophisticated counterparties. 39

14 Trade Option Exemption This trade option exemption will operate as an alternative to the general CFTC determination that commodity options are swaps. If the offeror, the offeree, and the characteristics of the option transaction meet the requirements of the trade option exemption, the option transaction will be exempt from the general Dodd-Frank swaps regime subject to the following considerations. 40 Trade Option Exemption Under the terms of the interim final rule, the offeror must fall into one of two categories. The offeror may be an: Eligible Contract Participant (ECP), which assures that option grantors will have some minimal level of financial resources and sophistication in order to minimize the risk that a seller would not be able to perform its obligations under a commodity option. For our purposes, an ECP is defined as an entity That has a net worth exceeding $1,000,000; and enters into an agreement, contract, or transaction in connection with the conduct of the entity s business or to manage the risk associated with an asset or liability owned or incurred or reasonably likely to be owned or incurred by the entity in the conduct of the entity s business; 41 Trade Option Exemption Alternatively, the offeror may be a producer, processor, or commercial user of, or a merchant handling the commodity which is the subject of the commodity option transaction, or the products or by-products thereof, and be offering or entering into the transaction solely for purposes related to its business as such. In either instance, the trade option offeror may only offer or enter into the contract if it reasonably believes, consistent with the standard in the CFTC s current trade option exemption, that the offeree meets the offeree requirements which are described in the next slide. 42

15 Trade Option Exemption The offeree must meet the same basic requirements as under the current CFTC trade option exemption. That is, the option buyer must be a producer, processor, or commercial user of, or a merchant handling the commodity which is the subject of the commodity option transaction, or the products or byproducts thereof, and be entering into the transaction solely for purposes related to its business as such. Note that there is no ECP requirement or other financial eligibility standard for the offeree. There is no ECP requirement to ensure that entities can continue to hedge their commercial risk. 43 Trade Option Exemption The third element of the trade option exemption is that both parties must intend that the commodity option be physically settled, so that, if exercised, the option would result in the sale of an exempt or agricultural (i.e., nonfinancial) commodity for immediate (spot) or deferred (forward) shipment or delivery. This includes most electric operations related transactions of electric cooperatives. However, an electric cooperative could be an offeror or an offeree but cannot be an offeror unless it is an ECP under the Interim Final Rule. 44 Trade Option Exemption Conditions: Recordkeeping and reporting under Part 45 More stringent for transactions with swap dealers and major swap participants. Less stringent, but still onerous, for transactions with other end users. Either party, to the extent they have applied the Part 45 recordkeeping and reporting requirements, can be the reporting party for CFTC purposes. In our comment letter filed on June 26 th, we and all the other electric trades urged the CFTC to relax these recordkeeping and reporting rules for nonfinancial commodity trade options. 45

16 Trade Option Exemption Conditions: As an alterative to the reporting requirements under section 45, an annual reporting option may be available for trade option reporting. An Annual Report may be filed using Form TO 46 Trade Option Exemption Form TO requires an unreported trade option counterparty to: (1) Provide name and contact information, (2) identify the categories of commodities (agricultural, metals, energy, or other) underlying one or more unreported trade options which it entered into during the prior calendar year, and (3) for each commodity category, identify the approximate aggregate value of the underlying physical commodities that it either delivered or received in connection with the exercise of unreported trade options during the prior calendar year. 47 Trade Option Exemption A trade option is any transaction used to hedge commercial risk including power contracts, fuel contracts, transmission contracts in general, most everything we do is a trade option. Note that the reporting requirements may be lessened for transactions between and among cooperatives and municipal utilities and the federal power agencies if the CFTC grants our 4(c)6 application as we proposed. 48

17 What Should You be Doing Now? Don t destroy any records! We may not know more for some period of time after the Products Definition rule is published, but beware of the Tsunami Date 60 days after the publication of the Products Definition in the Federal Register (assuming that Products Definitions appears as a final rule and not as a reproposal or an interim final rule). If you have not analyzed your need for commercial hedging over the next 12 or 18 months if it involves a financially settled product consider hedging now before the Products Definition rule is effective. Otherwise don t be surprised if your phone calls are not returned by counterparties for some period of time. 49 What Should You be Doing Now? Bottom line we expect a reversion to a primarily physical market (back to the future) for at least 6-12 months before those large entities which offer financially settled options and swaps establish their own business strategies, compliance processes and documentation for the new regulatory regime. Depending on the nature and costs of the new regulation of swaps which are intended from inception to be financially settled, the energy markets of the future may look very different than they do today. 50 The Whistleblower Final Rule The final Whistleblower Rule was effective on October 25, While it seems unlikely that an electric cooperative employee would be a whistleblower to the CFTC, in order to prepare for that possibility, certain best practices should be examined and implemented where feasible. The Whistleblower s financial reward is tied to the size of any fines imposed or settlement reached. While a whistleblower is not required to use a cooperative s internal reporting mechanisms prior to a report to the CFTC, they may increase their potential reward by doing so. 51

18 The Whistleblower Final Rule 52 The Whistleblower Final Rule Best Practices Establish a culture of compliance Encourage or Require Internal Reporting Provide Employee Training 53 The Whistleblower Final Rule Best Practices Self-Reporting Policies The new Whistleblower provisions change the idea of a self-reporting mechanism There is a greater chance that violations will come to the attention of regulators The new rule increases the risk that a whistleblower will report before the company voluntarily reports If the company were to self-report a potential violation but the employee reports to the CFTC first, it creates an appearance issue for the cooperative 54

19 The Whistleblower Final Rule Reduce the Risk of Retaliation Claims Retaliation should not be tolerated, regardless of the form it may take Limit the number of employees with knowledge of the identity of whistleblowers Some disgruntled employees may use the Whistleblower final rule as an offensive strategy 55 The Whistleblower Final Rule Consider Requiring Annual Certifications from Employees This certification would state that the employee is not aware of any violations of the law, applicable regulations or company policy that are not otherwise disclosed in the certification or reported to the cooperative. The above would apply to anonymous claims as well. Consider covering this area in exit interviews with departing employees. 56 The Whistleblower Final Rule Be prepared to respond to CFTC enforcement. The regulators may contact your cooperative They may not indicate that the source of their inquiry is a whistleblower claim They may offer your cooperative the opportunity to be interviewed, or to investigate and report back to them If so, take advantage of this offer! CFTC staff must be confident that your cooperative will conduct a credible inquiry Position your cooperative with advance planning before the enforcement staff comes calling to ensure an appropriate response 57

20 Resources For More Information After the final rule on Product Definitions and the CFTC order on our 4(c)(6) Exemption Application NRECA will likely hold at least two more webinars: For G&Ts and large distribution cooperatives which may have more complex transactions For distribution cooperatives Electric Co-op Today (ECT) articles CFTC issues page on 58 Q&A Session Question: Where can I get more information? Response: Go to for more details. Step 1: Type in your question. Step 2: Click on the Send button. 59 Contact Information Russ Wasson 4301 Wilson Blvd. Mail Code EP Arlington, VA Office: (703) Mobile: (225) Mobile: (703) russell.wasson@nreca.coop 60

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