Comment Text:
Executive Summary - See Attached Memo for Full Comments
Parametric contracts may ultimately mature into an effective tool to assist U.S. businesses, nonprofits, local governments, and even families to manage risks relating to climate change. Before this product set can be trusted to deliver on that promise, parametric contracts must first be securely grounded in an appropriate regulatory framework.
Parametric contracts are undoubtedly swaps within the jurisdiction of the CFTC. The regulatory safe harbor CFTC granted to traditional insurance products only extends to state-regulated insurance policies indemnifying the policyholder to the extent of an actual, proven loss. This exception to the CFTC’s jurisdiction cannot reasonably stretch to encompass parametric contracts that promise a formulaic payout based on the parameters of an external event.
There is mounting evidence that Congress, state insurance regulators, consumers, and other stakeholders have embraced state regulation of parametric insurance contracts despite the clear jurisdictional mandate of the CFTC. For example, a bill currently pends before the U.S. House that would compel insurance companies to offer parametric pandemic insurance contracts regulated not by the CFTC but by state insurance regulators. Similarly, a recent federal Civil Innovation Grant awarded $1 million to pilot climate-related parametric insurance contracts provided to underserved communities in New York City.
Nothing prohibits an insurance company from offering parametric products so long as it complies with CFTC rules such as registration, data reporting, anti-money laundering protections, training and oversight of staff, and use registered brokers. In fact, compliant insurance companies and NFA registered insurance agents and brokers are well positioned to compete alongside other financial services sectors in a vibrant parametric contract market overseen by the CFTC.
The CFTC must either aggressively police its jurisdictional perimeter or expressly cede its authority over parametric contracts to insurance regulators. Until the CFTC speaks up, the potential for parametric contracts to contribute to the management of climate-related risk will profoundly underdeliver while consumers are marketed inefficient and legally dubious parametric insurance contracts.
