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Notice

Agency Information Collection Activities Under OMB Review

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Information about this document as published in the Federal Register.

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AGENCY:

Commodity Futures Trading Commission.

ACTION:

Notice.

SUMMARY:

In compliance with the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq. (PRA), this notice announces that the Information Collection Request (ICR) abstracted below has been forwarded to the Office of Management and Budget (OMB) for review and comment. The ICR describes the nature of the information collection and its expected costs and burden.

DATES:

Comments must be submitted on or before May 4, 2011.

For Further Information or a Copy Contact: Susan Nathan, Senior Special Counsel, Division of Market Oversight, Commodity Futures Trading Commission, (202) 418-5133; e-mail: snathan@cftc.gov.

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SUPPLEMENTARY INFORMATION:

Under the PRA, Federal agencies must obtain approval from OMB for each collection of information they collect or sponsor. “Collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3 and includes agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA, 44 U.S.C. 3506(c)(2)(A), requires Federal agencies to provide a 60-day notice in the Federal Register for each proposed collection of information before submitting the collection to OMB for approval. Accordingly, on January 11, 2011 the Commodity Futures Trading Commission (Commission or CFTC) published such a notice in the Federal Register, in connection with a recently adopted interim final rule for reporting pre-enactment swap transactions.[1] The comment period closed on March 14, 2011; one comment was received.[2]

OMB regulations at 5 CFR 1320, which implement provisions of the PRA, further require that on or before the date of submission to OMB of an ICR, an agency shall publish in the Federal Register a notice stating that OMB approval is being sought and requesting that comments be submitted to OMB within 30 days of the notice's publication. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a valid OMB control number. Accordingly, the Commission has submitted a request to OMB for approval of a collection of information for 17 CFR part 44—Interim Final Rule for Reporting Pre-Enactment Swap Transactions. The Commission is requesting a 3-year term of approval for this information collection activity.

Abstract: Section 729 of the Wall Street Reform and Consumer Protection Act (Dodd-Frank Act) [3] required the Commission to adopt, within 90 days of enactment of the Dodd-Frank Act, an interim final rule for the reporting of swap transactions entered into before July 21, 2010 whose terms had not expired as of that date (“pre-enactment unexpired swaps”). Pursuant to this mandate, the CFTC adopted an interim final rule requiring specified parties to pre-enactment unexpired swap transactions to report certain information related to those transactions to a swap data repository (SDR) or to the Commission by a compliance date to be established in reporting rules required under Section 2(h)(5) of the Commodity Exchange Act (CEA), or within 60 days after an appropriate SDR becomes registered under Section 21 of the CEA and commences operations, whichever occurs first. An interpretative note to the rule advises that, in order to comply with the reporting provisions of the rule, reporting parties that may be required to report to an SDR or to the CFTC will need to preserve information related to the terms of such swaps.

The Commission initially estimated that approximately 1,800 entities would be affected by this rule. That number was based on the current estimate of the number of swap dealers (250), major swap participants (50) and other counterparties (1,500).[4] Because the Commission has not heretofore regulated the swap market, it has not previously collected data to support its estimate. In its comment letter, the Coalition correctly observed that this estimate did not take into account roughly 2,900 members of the Coalition. Moreover, the Commission has estimated that there are roughly 30,000 non-financial entities engaging in swap transactions [5] (including the Coalition members) which may be subject to the requirements of the interim final rule. Accordingly, the initial estimate of 1,800 affected entities has been revised to 32,000.

Because the interim final rule requires only that affected entities maintain data in its current form, and imposes no collection, manipulation, compilation or reporting of the data, the Commission initially estimated that the hourly burden would be de minimis.[6] The Coalition suggests that the burden to be measured is not the time it would take each affected entity to advise its employees to retain particular records, but would also include time spent in reviewing, interpreting and analyzing the CEA, the Commission's jurisdiction over pre-enactment unexpired swaps, and the relevance of the interim final rule to the particular industry. Finally, the Coalition notes that the burden to “collect and retain” records is only a first step; should the Commission require any manipulation, compilation or interpretation of the data the burden will be significantly higher. The Commission has considered these comments and for the following reasons has concluded that its estimate is not inconsistent with the burden imposed by the interim final rule. The rule requires merely that affected parties retain data related to swap transactions to the extent that and in whatever form they currently keep such data until such time as permanent rules governing data recordkeeping and reporting are proposed and adopted by the Commission. None of the activities cited by the Coalition are contemplated by the interim final rule.

Burden Statement: The respondent burden for this collection is estimated to average .5 hours per response. This Start Printed Page 18537estimate includes the time to locate the data related to the pre-enactment unexpired swap transaction and the time to ensure that the data is maintained in such form as it currently exists. The total annual cost burden per respondent is estimated to be $21.05. The Commission based its calculation on an hourly wage rate of $42.05 for a Programmer to maintain the data.[7]

Respondents/Affected Entities: Swap dealers, Major Swap Participants, and other counterparties to a swap transaction (i.e., end-user, non-SD/non-MSP counterparties).

Estimated Number of Respondents: 32,000.

Estimated Total Annual Burden on Respondents: 16,000 hours.

Frequency of Collection: Once.

ADDRESSES:

Comments regarding the burden estimated or any other aspect of the information collection, including suggestions for reducing the burden, may be submitted directly to the Office of Information and Regulatory Affairs (OIRA) in OMB, by e-mail at OIRAsubmissions@omb.eop.gov. Please provide the Commission with a copy of all submitted comments at the address listed below. Please refer to OMB Reference No. 201101-3038-002, found on http://reginfo.gov.

Comments may also be submitted to: Susan Nathan, Senior Special Counsel, Division of Market Oversight, Commodity Futures Trading Commission, 1155 21st Street, NW., Washington, DC 2058; e-mail the Agency's Web site at http://comments.cftc.gov. Follow the instructions for submitting comments through the Web site.

Comments may also be mailed to: David Stawick, Secretary of the Commission, Commodity Futures Trading Commission, Three Lafayette Centre, 1155 21st Street, NW., Washington, DC 20581 or by Hand Delivery/Courier at the same address.

A copy of the supporting statements for the collection of information discussed above may be obtained by visiting RegInfo.gov.

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Issued by the Commission, this 30th day of March 2011.

David Stawick,

Secretary of the Commission.

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Footnotes

1.  The Federal Register notice with a 60-day comment period soliciting comments on this collection of information was published on January 11, 2011. 76 FR 1603.

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2.  Letter dated March 14, 2011, from trade associations comprising the “Not-for-Profit Electric End User Coalition” (Coalition). The Coalition challenged the CFTC's estimates with respect to the number and diversity of affected entities. In response to this comment, the Commission has revised its estimates; these revisions are reflected in the instant notice as well as in the ICR forwarded to OMB.

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3.  Public Law 111-203, 124 Stat. 1376 (2010).

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5.  See CFTC NPRM: End-User Exception to Mandatory Clearing of Swaps, 75 FR 80747, 80756 (Dec. 23, 2010). The Commission estimates that there are approximately 30,000 end users who are counterparties to a swap in a given year. While it is possible that the number of end users having pre-enactment swap transactions to report will be significantly lower, the 30,000 figure is the more conservative estimate.

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6.  76 FR 1603, 1604. The estimated average hourly burden was estimated at .5 hours.

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7.  In arriving at a wage rate for the hourly costs imposed, Commission staff used the Management & Professional Earnings in the Securities Industry Report, published in 2010 by the Securities Industry and Financial Markets Associations (2010 Report). The sage rate used the median salary of a Programmer as published in the 2010 Report and divided that figure by 2000 annual working hours to arrive at the hourly rate of $42.05. Because the interim final rule requires only that existing data be maintained in its current form, a programmer will be able to perform this task.

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[FR Doc. 2011-7943 Filed 4-1-11; 8:45 am]

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