Opinion for the Court filed by Circuit Judge GARLAND.
Separate statement concurring in the judgment filed by Circuit Judge RANDOLPH.
GARLAND, Circuit Judge:
First American Discount Corporation seeks review of an order of the Commodity Futures Trading Commission (CFTC) holding the company jointly and severally liable for the acts of a commodities broker whose liabilities First American had agreed to guarantee. First American contends that the CFTC regulation pursuant to which it entered into the guarantee agreement is substantively and procedurally invalid, and further argues that the broker's customer waived the benefits of the guarantee. The CFTC rejected these claims, as do we.
First American is regulated under the Commodity Exchange Act (CEA) as a "futures commission merchant" (FCM). See 7 U.S.C. § 1a(12).
In 1982, the CFTC advised Congress that the number of agents was growing significantly, and that FCMs who used them "have often disavowed any responsibility for violations of the Act by these `agents.'" Id. The Commission proposed that "each `agent' of a futures commission merchant be required to register as an associated person of that futures commission merchant." Id. Congress, however, did not adopt the CFTC's recommendation. As the Senate Committee on Agriculture, Nutrition, and Forestry explained:
To resolve this dilemma, Congress drafted legislation requiring all persons who solicit or accept customer orders for FCMs to register with the CFTC, but permitting them to register either as "associated persons" of the FCMs, or as part of a new class of registrants called "introducing brokers." Id. at 112. The latter were conceived of as independent entities that solicited and accepted customer orders but used the services of FCMs for clearing, record keeping and retaining customer funds. See id. at 41. To guarantee the accountability of introducing brokers, the Commission was authorized to require them to meet "minimum financial requirements." See id.
The new provisions were enacted as part of the Futures Trading Act of 1982, Pub.L.No. 97-444, 96 Stat. 2294, which amended the CEA. Most significant for our purposes are amended CEA section 1a, 7 U.S.C. § 1a, which creates the category of "introducing brokers,"
H.R. CONF. REP. NO. 97-964, at 41 (1982).
In April 1983, the CFTC responded to Congress' mandate by publishing a notice of proposed rulemaking setting forth a $25,000 "minimum adjusted net capital requirement" for introducing brokers. 48 Fed.Reg. 14,933, 14,942 (1983) (proposed rule). In addition, those brokers whose capital reserve decreased to less than an "early warning level" of 150% of that amount would, under the proposed rule, be required to notify the CFTC and file monthly financial statements. Id. at 14,951. The capital requirement, therefore, would effectively have been $37,500. See 48 Fed.Reg. 35,248, 35,262 (1983) (final rule). The CFTC stated that requiring introducing brokers to have such a permanent capital base "not only would establish a benchmark of economic viability, but would also be an important element of customer protection." 48 Fed.Reg. at 14,942. The proposed minimum would "provid[e] coverage for potential liabilities arising from business operations, customer relations and the handling of proprietary accounts." Id.
After publication of the notice, the CFTC received numerous comments, including many from the industry contending that the proposed capital requirements
CFTC Form 1-FR-IB (Part B); see 17 C.F.R. § 1.3(nn); 48 Fed.Reg. at 35,249.
Taking advantage of the alternative compliance mechanism contained in the final rule, First American entered into a guarantee agreement with Wolf Futures Group, Inc., an introducing broker. Pursuant to the new regulations, the agreement stated that First American would be jointly and severally liable for all of Wolf's obligations as an introducing broker under the CEA. See Violette v. First Am. Discount Corp., CFTC Doc. No. 97-R020, 1999 WL 92428, at *3 n. 1 (Feb. 24, 1999). Wolf Futures subsequently introduced Gregory Violette to First American to open a commodity futures trading account in Violette's name.
On December 11, 1996, Violette filed a complaint with the CFTC against Wolf Futures and its principal, Scott Allen Wolf [hereinafter referred to collectively as "Wolf"]. On August 31, 1998, a CFTC Judgment Officer found that Wolf had traded Violette's account without written authorization in violation of CFTC Regulation 166.2, 17 C.F.R. § 166.2. See Violette v. First Am. Discount Corp., CFTC Doc. No.97-R020, 1998 WL 552810 (Aug. 31, 1998). The Officer assessed damages of $13,438.50, plus prejudgment interest and costs. Most significant for our purposes, the Officer held First American jointly and severally "liable for the acts of Wolf by virtue of its status as guarantor." Id. at *23.
First American appealed to the Commission, raising three arguments: (1) that the CFTC regulation providing for guarantor status was contrary to congressional intent and thus invalid; (2) that the regulation was void for lack of proper notice under the Administrative Procedure Act (APA); and (3) that an exculpatory clause in a contract Violette signed with First American overrode the guarantee agreement. The Commission ruled against First American on all three claims and affirmed the decision of the Judgment Officer. See Violette, 1999 WL 92428, at *1. Pursuant to 7 U.S.C. § 18(e), First American petitions this court for review of the Commission's order.
First American's initial claim is that the CFTC's final rule, which sets forth minimum capital requirements and permits the alternative of a guarantee agreement, contravenes the 1982 Act. Our analysis of an agency's interpretation of a statute is guided by the two-step framework of Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). We first ask "whether Congress has directly spoken to the
First American raises only a Chevron step one argument, contending that the guarantee provision is "contrary to the express intent of Congress." First American Br. at 7. We can perceive no such express intent. The 1982 Act authorizes the CFTC to issue regulations prescribing "minimum financial requirements" to ensure that an introducing broker meets "his obligations as a registrant." 7 U.S.C. § 6f(b). The statute is silent as to what such a financial requirement might be, and certainly does not say that the CFTC may not use an FCM's guarantee in satisfaction of that requirement. Instead, "Congress has explicitly left a gap for the agency to fill" and has made "an express delegation of authority to the agency to elucidate [the] specific provision of the statute by regulation." Chevron, 467 U.S. at 843-44, 104 S.Ct. 2778. We therefore proceed to Chevron's step two.
Although First American does not address the second step of Chevron, the CFTC does and we find its analysis compelling. The question is whether the combination of a net capital requirement, supplemented with the alternative of a guarantee, reasonably falls within the undefined term, "minimum financial requirements." The CFTC responds that the statute authorizes it to impose such requirements to insure that an introducing broker can meet "his obligations as a registrant," and the Commission reasonably explains that the guarantee alternative is, like the capital requirement, a way of: "(1) Insuring that introducing brokers are not judgment proof; and (2) providing coverage for potential liabilities of introducing brokers arising from business operations and customer relations." 48 Fed. Reg. at 35,264.
Recognizing the absence of support for its position in the statutory language, First American asks us to retrace our Chevron steps and reconsider step one by looking at the legislative history of the 1982 Act. That history, appellant contends, expressly bars the guarantee provision at issue here. In support, First American cites the passage in the Senate Report stating that the Committee felt it would be inappropriate "to require" introducing brokers to become branch offices of FCMs, or "to impose" vicarious liability on FCMs for acts of introducing brokers. S.REP.NO. 97-384, at 41. First American contends that the guarantee provision is inconsistent with this congressional concern, arguing that it effectively requires an introducing broker to become a branch office of its affiliated FCM, and effectively imposes vicarious liability on an FCM for the conduct of its affiliated introducing broker.
The flaw in this argument is that the guarantee provision does not "require" or "impose" anything: it is merely an option that either the introducing broker or the FCM is free to reject. Rather than seek out an FCM for a guarantee, an introducing broker may instead choose to satisfy the capital requirement itself. And an FCM asked by an introducing broker for a guarantee may simply decline, electing instead to use its own employees or to work with introducing brokers that can independently satisfy the capital requirement. Accordingly, under the CFTC's regulation, the FCM's acceptance of liability through the guarantee is a voluntary choice, which nothing in the legislative history precludes the CFTC from making available.
But, First American protests, the guarantee provision is not truly an option. In petitioner's view, the CFTC's $20,000 minimum capital requirement is so high that introducing brokers are effectively "forced" to sign guarantee agreements. It is this reality that assertedly contravenes both the Senate Committee's distaste for
We see nothing in the statute or legislative history, however, that would foreclose a $20,000 minimum capital requirement as "too high." Both are silent on the question of what the "minimum" in "minimum financial requirements" means. Moving again to Chevron's step two, we also see no ground upon which the CFTC's standard could be viewed as an impermissible interpretation of that term, or even of the conferees' phrase, "economically viable." The CFTC originally proposed an effective requirement of $37,500, cutting it almost in half to $20,000 after considering industry comments. First American has offered no evidence whatsoever to substantiate its claim that a $20,000 requirement is still too high to allow introducing brokers to remain economically viable, or that it is so high as to force them to opt for an FCM guarantee.
Moreover, although it is true that the legislative history reflects congressional concern that the economic viability of introducing brokers be maintained, it also reflects Congress' intent—as the statute itself says—that the financial requirements be set at a level that will ensure that an introducing broker meets "his obligations as a registrant." 7 U.S.C. § 6f(b). The Commission was instructed to impose standards sufficient "to guarantee accountability and responsible conduct," S.REP. NO. 97-384, at 41, and to ensure "that persons handling orders for commodity trades cannot escape responsibility for their actions for lack of adequate capital," id. at 112. Implementing this congressional intent was precisely the rationale the CFTC offered for finally settling upon a minimum requirement of $20,000. See 48 Fed.Reg. at 35,261, 35,264. And First American offers no basis for concluding that such a requirement is too high to be reasonably related to the goal of ensuring that customers' claims are not rendered moot because introducing brokers are judgment proof. If anything, the more than $13,000 in damages awarded in the relatively small case now before us suggests that the facts are to the contrary.
In sum, we conclude that the $20,000 minimum capital requirement for introductory brokers is a permissible exercise of the CFTC's regulatory authority, and that it is equally permissible for the Commission to provide the alternative of entering into a guarantee agreement with an FCM. Indeed, providing such an option is faithful to Congress' direction that the CFTC "provide the registrants with substantial flexibility as to the manner and classification of registration." H.R. CONF. REP. NO. 97-964, at 41.
First American's second challenge to the CFTC's rule is procedural. Petitioner contends that the guarantee option should be invalidated because it was not subject to notice and comment prior to final issuance. As we have discussed, the notice of proposed rulemaking issued by the CFTC on April 6, 1983, stated that the Commission was contemplating a $25,000 capital requirement, which, when combined with the proposed "early warning" requirement, would effectively require a minimum capital level of $37,500. The possibility of a guarantee option, later offered in the final rule, was not mentioned. Petitioner contends that this failure to publish notice of the guarantee option violated the APA,
The law does not require that every alteration in a proposed rule be reissued for notice and comment. If that were the case, an agency could "learn from the comments on its proposals only at the peril of" subjecting itself to rulemaking without end. International Harvester Co. v. Ruckelshaus, 478 F.2d 615, 632 & n. 51 (D.C.Cir.1973); see Fertilizer Institute v. EPA, 935 F.2d 1303, 1311 (D.C.Cir.1991); American Medical Ass'n v. United States, 887 F.2d 760, 768 & n. 7 (7th Cir.1989). Instead, renewed notice is required only if the final rule cannot fairly be viewed as a "logical outgrowth" of the initial proposal. Small Refiner Lead Phase-Down Task Force v. EPA, 705 F.2d 506, 547 (D.C.Cir. 1983). The test for a "logical outgrowth," variously phrased, is whether a reasonable commenter "should have anticipated that such a requirement" would be promulgated, id. at 549, or whether the notice was "sufficient to advise interested parties that comments directed to the" controverted aspect of the final rule should have been made, Fertilizer Inst., 935 F.2d at 1312.
In this case, the outcome of that test is a relatively close question. As we have said above, the guarantee agreement is reasonably regarded as a form of minimum financial requirement, and was promulgated in response to suggestions that it be offered as an alternative to the $25,000 capital requirement originally proposed. The fact that others in First American's shoes— that is, other FCM's—did comment on and indeed propose the guarantee option suggests that they, at least, regarded it as a logical outgrowth. See Comments of Abramson & Fox at 6 (proposal by law firm "retained by several major futures commission merchants" that "the carrying FCM be permitted to assume full regulatory and financial responsibility for the activities of the introducing broker"); Comments of Heinold Commodities, Inc. at 2 (proposal by registered FCM that, as an alternative to a capital requirement, the carrying FCM should be permitted to "stand as a guarantor for the introducing broker's potential liabilities"); Comments of Cargill Investor Services, Inc. at 1 (suggesting that as long as "the FCM remains fully responsible to the customer, there is no reason for [introducing brokers] to fulfill a capital requirement" ). On the other hand, it could well be argued that a reasonable commenter would not have thought to comment on a guarantee option since it is different not only in degree but in kind from a financial requirement denominated in dollars. Under that view, the connection between the original notice and the guarantee option would be "simply too tenuous" for the latter to be regarded as a "logical outgrowth" of the former. Small Refiner, 705 F.2d at 549.
We need not resolve this question, however, because CFTC's failure to re-notice the guarantee option was at best harmless. The APA directs reviewing courts to take "due account" of "the rule of prejudicial error." 5 U.S.C. § 706. "As incorporated into the APA, the harmless error rule requires the party asserting error to demonstrate prejudice from the error." Air Canada v. DOT, 148 F.3d 1142, 1156 (D.C.Cir.1998) (citing 5 U.S.C. § 706); see Steel Mfrs. Ass'n v. EPA, 27 F.3d 642, 649 (D.C.Cir.1994) (acknowledging agency's failure to provide opportunity for comment on one portion of a rule, but upholding the rule under APA's "harmless error" provision); Cabais v. Egger, 690 F.2d 234, 237 n. 4 (D.C.Cir.1982) ("Even where notice and comment were erroneously omitted, a regulation or rule need not be invalidated if it has no substantial impact."). Assuming that the notice provided by the CFTC was insufficient, we conclude that First American suffered no prejudice as a result.
As we have discussed above, the portion of the rule to which First American objects
We also note that the concept of a guarantee option came from FCMs looking for a way to give both their introducing brokers and themselves an alternative to the minimum capital requirement. This indicates that FCMs regarded the guarantee as an alternative that was beneficial rather than harmful to their interests. Although First American is not bound by the views of its fellow FCMs, its own voluntary decision to adopt the guarantee option makes clear that it regarded it the same way. This reinforces the conclusion that the CFTC's failure to extend the rulemaking to provide an opportunity for notice and comment on the guarantee option was at best harmless error.
Finally, the fact that First American not only was not harmed by, but rather affirmatively benefitted from, the availability of the guarantee option suggests a second reason for not countenancing its claim of procedural error. Under the doctrine of equitable estoppel, "a party with full knowledge of the facts, which accepts the benefits of a transaction, contract, statute, regulation, or order may not subsequently take an inconsistent position to avoid the corresponding obligations or effects." Kaneb Servs., Inc. v. FSLIC, 650 F.2d 78, 81 (5th Cir.1981). Here, the CFTC gave First American the option of guaranteeing the liabilities of Wolf, an introducing broker who could not otherwise have operated for lack of sufficient capital. First American had no obligation to make the guarantee, but did so in exchange for the financial benefits both entities expected to reap from their joint arrangement. Having received those benefits, First American will not now be heard to attack the regulation that was their source. See Federal Power Comm'n v. Colorado Interstate Gas Co., 348 U.S. 492, 502, 75 S.Ct. 467, 99 L.Ed. 583 (1955) ("[Respondent] cannot now be allowed to attack an officially approved condition of the merger while retaining at the same time all of its benefits.").
First American's final challenge to the order holding it liable for the conduct of its introducing broker is based on an exculpatory clause included in an agreement that Violette signed with First American after Wolf introduced the two. Paragraph 23 of the two-page, standard-form "Customer Agreement" reads as follows: "Customer hereby waives any claim based upon First American's guarantee, if any, of Introducing Broker's obligations under the Commodity Exchange Act or CFTC regulations." J.A. at 27. First American argues that this provision immunizes it from liability that would otherwise attach under the guarantee agreement it signed with its introducing broker.
The CFTC disagrees. It states that its Regulation 1.10(j), 17 C.F.R. § 1.10(j), which permits an introducing broker to satisfy its capital requirements through an FCM guarantee, cannot be waived in this manner. Whether or not an agency's regulation is waivable is a question of the agency's intent, and just as we must defer to the agency's reasonable interpretation of the statutory scheme it was entrusted to administer, so too must we give its interpretation of its own regulation "controlling weight unless it is plainly erroneous
The CFTC's interpretation of its regulation as non-waivable is neither plainly erroneous nor inconsistent with the regulation. Nothing in the text of the rule suggests that the guarantee is waivable. To the contrary, the mandatory form agreement required by the rule states: "This guarantee agreement is binding and is and shall remain in full force and effect unless terminated in accordance with the rules, regulations or orders promulgated by the Commission with respect to such terminations." CFTC Form 1-FR-IB (Part B); see 17 C.F.R. § 1.3(nn) (requiring guarantee to conform to Form 1-FR).
Moreover, the CFTC contends that permitting customer waiver would "undermine[ ] the protections provided by the guarantee agreement." Violette, 1999 WL 92428, at *2. The purpose of the Commission's rule is to provide coverage for the liabilities of introducing brokers and to ensure that they are not "judgment proof." 48 Fed.Reg. at 35,264. The CFTC reasonably argues that if the guarantee were waivable—particularly through the kind of boilerplate contract at issue here—that purpose would be wholly defeated. See Gray v. American Express Co., 743 F.2d 10, 16 (D.C.Cir.1984) (declining to give effect to provision in cardmember contract that would have effectively waived coverage of Fair Credit Billing Act); id. at 16 ("The rationale of consumer protection legislation is to even out the inequalities that consumers normally bring to the bargain. To allow such protection to be waived by boiler plate language of the contract puts the legislative process to a foolish and unproductive task.").
Finally, and perhaps most telling, even if we were to hold a guarantee agreement waivable by a customer, not even First American contends that the CFTC's minimum capital requirement would itself be waivable in that manner. See 7 U.S.C. § 6f(b) (providing that each registered introducing broker "shall at all times continue to meet" the minimum financial requirements prescribed by the Commission). Yet, to hold the one is to hold the other. As the rules make clear, a guarantee agreement is entered into "in satisfaction of the adjusted net capital requirements with which the introducing broker otherwise would have to comply," and thus permits the introducing broker to operate below the minimum level of required net capital. CFTC Form 1-FR-IB (Part B); see 17 C.F.R. § 1.3(nn). Although First American argues that the guarantee may be waived, it does not suggest that the CFTC may thereafter deregister the introducing broker if it cannot muster $20,000 in capital. But if the Commission cannot deregister such a broker, permitting waiver would effectively permit the broker to slip the bonds of the capital requirement
First American complains that even if the CFTC's nowaiver interpretation is correct, allowing the Commission to apply it for the first time in this adjudication would be unfair.
We uphold the validity of the regulation permitting guarantee agreements as alternatives to minimum capital requirements, and further uphold the CFTC's interpretation of that regulation as not permitting customer waivers. Accordingly, we have no ground for reversing the Commission's order holding First American jointly and severally liable for the regulatory violations committed by its introducing broker. The petition for review is denied.
RANDOLPH, Circuit Judge, concurring:
I concur in the judgment and in all of the court's opinion except the portion of Part III holding that the Commission's failure to give notice amounted to harmless error.
7 U.S.C. § 1a(12).
7 U.S.C. § 1a(14).