Code of Federal Regulations Title 17. Commodity and Securities Exchanges 17 CFR Pt. 190, App. B—SPECIAL BANKRUPTCY DISTRIBUTIONS

Framework 1—Special Distribution of Customer Funds for Futures Contracts When FCM Participated in Cross–Margining

The Commission has established the following distributional convention with respect to “customer funds” (as § 1.3 of this chapter defines such term) for futures contracts held by a futures commission merchant (FCM) that participated in a cross-margining (XM) program which shall apply if participating market professionals sign an agreement that makes reference to this distributional rule and the form of such agreement has been approved by the Commission by rule, regulation or order:

All customer funds for futures contracts held in respect of XM accounts, regardless of the product that customers holding such accounts are trading, are required by Commission order to be segregated separately from all other customer segregated funds. For purposes of this distributional rule, XM accounts will be deemed to be commodity interest accounts and securities held in XM accounts will be deemed to be received by the FCM to margin, guarantee or secure commodity interest contracts. The maintenance of property in an XM account will result in subordination of the claim for such property to certain non–XM customer claims and thereby will operate to cause such XM claim not to be treated as a customer claim for purposes of the Securities Investors Protection Act and the XM securities to be excluded from the securities estate. This creates subclasses of futures customer accounts, an XM account and a non–XM account (a person could hold each type of account), and results in two pools of segregated funds belonging to futures customers:  An XM pool and a non–XM pool. In the event that there is a shortfall in the non–XM pool of customer class segregated funds and there is no shortfall in the XM pool of customer segregated funds, all futures customer net equity claims, whether or not they arise out of the XM subclass of accounts, will be combined and will be paid pro rata out of the total pool of available XM and non–XM customer funds for futures contracts. In the event that there is a shortfall in the XM pool of customer segregated funds and there is no shortfall in the non–XM pool of customer segregated funds, then futures customer net equity claims arising from the XM subclass of accounts shall be satisfied first from the XM pool of customer segregated funds, and futures customer net equity claims arising from the non–XM subclass of accounts shall be satisfied first from the non–XM customer segregated funds. Furthermore, in the event that there is a shortfall in both the non–XM and XM pools of customer segregated funds:  (1) If the non–XM shortfall as a percentage of the segregation requirement in the non–XM pool is greater than or equal to the XM shortfall as a percentage of the segregation requirement in the XM pool, all futures customer net equity claims will be paid pro rata;  and (2) if the XM shortfall as a percentage of the segregation requirement in the XM pool is greater than the non–XM shortfall as a percentage of the segregation requirement of the non–XM pool, non–XM futures customer net equity claims will be paid pro rata out of the available non–XM segregated funds, and XM futures customer net equity claims will be paid pro rata out of the available XM segregated funds. In this way, non–XM customers will never be adversely affected by an XM shortfall.

The following examples illustrate the operation of this convention. The examples assume that the FCM has two customers, one with exclusively XM accounts and one with exclusively non–XM accounts. However, the examples would apply equally if there were only one customer, with both an XM account and a non–XM account.