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Regulation SBSR-Reporting and Dissemination of Security-Based Swap Information

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AGENCY:

Securities and Exchange Commission.

ACTION:

Final rule.

SUMMARY:

In accordance with Section 763 and Section 766 of Title VII (“Title VII”) of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Dodd-Frank Act”), the Securities and Exchange Commission (“SEC” or “Commission”) is adopting Regulation SBSR—Reporting and Dissemination of Security-Based Swap Information (“Regulation SBSR”) under the Securities Exchange Act of 1934 (“Exchange Act”). Regulation SBSR provides for the reporting of security-based swap information to registered security-based swap data repositories (“registered SDRs”) or the Commission, and the public dissemination of security-based swap transaction, volume, and pricing information by registered SDRs. Registered SDRs are required to establish and maintain certain policies and procedures regarding how transaction data are reported and disseminated, and participants of registered SDRs that are registered security-based swap dealers or registered major security-based swap participants are required to establish and maintain policies and procedures that are reasonably designed to ensure that they comply with applicable reporting obligations. Regulation SBSR contains provisions that address the application of the regulatory reporting and public dissemination requirements to cross-border security-based swap activity as well as provisions for permitting market participants to satisfy these requirements through substituted compliance. Finally, Regulation SBSR will require a registered SDR to register with the Commission as a securities information processor.

DATES:

Effective Date: May 18, 2015.

Compliance Date: For Rules 900, 907, and 909 of Regulation SBSR, the compliance date is the effective date. For Rules 901, 902, 903, 904, 905, 906, and 908 of Regulation SBSR, compliance dates are being proposed in a separate release, 34-74245 (February 11, 2015).

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FOR FURTHER INFORMATION CONTACT:

Michael Gaw, Assistant Director, at (202) 551-5602; Natasha Cowen, Special Counsel, at (202) 551-5652; Yvonne Fraticelli, Special Counsel, at (202) 551-5654; George Gilbert, Special Counsel, at (202) 551-5677; David Michehl, Special Counsel, at (202) 551-5627; Geoffrey Pemble, Special Counsel, at (202) 551-5628; Mia Zur, Special Counsel, at (202) 551-5638; all of the Division of Trading and Markets, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-7010.

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SUPPLEMENTARY INFORMATION:

Table of Contents

I. Introduction

A. Summary of Final Regulation SBSR

B. Role of Registered SDRs

C. Unique Identification Codes

D. Public Dissemination and Block Trades

E. Cross-Border Issues

F. Compliance Dates

II. Information Required To Be Reported

A. Primary Trade Information—Rule 901(c)

1. Description of Re-Proposed Rule

2. Discussion of Final Rule 901(c) and Response to Comments

a. General Approach to Required Information

b. Rule 901(c)(1)

i. Elimination of the Reference to Equity Derivatives

ii. Product ID

iii. Rule 901(c)(1)(i)

iv. Rules 901(c)(1)(ii) and (iii)

v. Rule 901(c)(1)(iv)

vi. Rule 901(c)(1)(v)

c. Rule 901(c)(2)

d. Rule 901(c)(3)

e. Rule 901(c)(4)

f. Rule 901(c)(5)

g. Rule 901(c)(6)

h. Rule 901(c)(7)

B. Rule 901(d)—Secondary Trade Information

1. Description of Proposed and Re-Proposed Rule

2. Final Rule 901(d)

3. Discussion of Final Rule 901(d) and Response to Comments

a. Rule 901(d)(1)—Counterparty IDs

b. Rule 901(d)(2)—Additional UICs

i. Branch ID and Execution Agent ID

ii. Revised Defined Terms in Rule 901(d)(2)

iii. Response to Comments

c. Rule 901(d)(3)—Payment Stream Information

d. Rule 901(d)(4)—Titles and Dates of Agreements

e. Rule 901(d)(5)—Other Data Elements

f. Rule 901(d)(6)—Submission to Clearing

g. Rule 901(d)(7)—Indication of Use of End-User Exception

h. Rule 901(d)(8)—Description of Settlement Terms

i. Rule 901(d)(9)—Platform ID

j. Rule 901(d)(10)—Transaction ID of Any Related Transaction

k. Information That Is Not Required by Rule 901(d)

C. Reporting of Historical Security-Based Swaps

1. Statutory Basis and Proposed Rule

2. Final Rule and Discussion of Comments Received

III. Where To Report Data

A. All Reports Must Be Submitted to a Registered SDR

B. Duties of Registered SDR Upon Receiving Transaction Reports

1. Rule 901(f)—Time Stamps

2. Rule 901(g)—Transaction IDs

IV. How To Report Data—Rules 901(h) and 907

A. Introduction

B. Rules 907(a)(1), 907(a)(2), and 901(h)—Data Elements and Formats

C. Rule 907(a)(6)—Ultimate Parent IDs and Counterparty IDs

V. Who Reports—Rule 901(a)

A. Proposed and Re-Proposed Rule 901(a)

B. Final Rule 901(a)

1. Reporting Hierarchy

2. Other Security-Based Swaps

C. Discussion of Comments and Basis for Final Rule

1. Application of the Reporting Hierarchy to Sides

2. Reporting by Agents

3. Reporting Clearing Transactions

4. Reporting by a Platform

5. Reporting of a Security-Based Swap Resulting From a Life Cycle Event

VI. Public Dissemination—Rule 902

A. Background

B. Registered SDR's Duty To Disseminate—Rule 902(a)

1. Format of Disseminated Data

2. Timing of Public Dissemination

3. Dissemination of Life Cycle Events

4. Correction of Minor Drafting Error

5. Use of Agents by a Registered SDR To Carry out the Public Dissemination Function

C. Definition of “Publicly Disseminate”

D. Exclusions From Public Dissemination—Rule 902(c)

1. Discussion of Final Rule

2. Other Exclusions From Public Dissemination Sought by Commenters

a. Customized Security-Based Swaps

b. Inter-Affiliate Transactions

c. Security-Based Swaps Entered Into in Connection With a Clearing Member's Default

d. Total Return Security-Based Swaps

e. Transactions Resulting From Portfolio Compression

f. Thinly Traded Products

E. Dissemination of Block Transactions—Rule 902(b)

F. The Embargo Rule—Rule 902(d)

G. Condition Flags—Rule 907(a)(4)

VII. Block Trades and the Interim Phase of Regulation SBSR

A. Proposed Rules Regarding Block Trades

B. Potential Impact on Liquidity

1. T+24 Hour Reporting for All Transactions

2. Reporting Timeframe for Trades Executed Prior to Weekends or U.S. Federal Holidays

3. Other Revisions To Accommodate the Interim Approach

4. Dissemination of Notional Amount

5. Analysis Period

VIII. Reporting and Public Dissemination of Security-Based Swaps Involving AllocationStart Printed Page 14565

A. Discussion of Comments Received and Application of Regulation SBSR

B. Example: Reporting and Public Dissemination for an Uncleared Bunched Order Execution

1. Reporting the Executed Bunched Order

2. Reporting the Allocations

IX. Inter-Affiliate Security-Based Swaps

A. Background and Summary of Final Rule

B. Discussion of Comments

1. Regulatory Reporting of Inter-Affiliate Security-Based Swaps

2. Public Dissemination of Inter-Affiliate Security-Based Swaps

X. Rule 903—Use of Codes

A. Proposed Treatment of Coded Information

B. Comments Received and Final Rule 903

1. Relocation of UIC Provisions Into Rule 903

2. Comments Regarding UICs and Final Rule 903(a)

3. Comments on Proposed Rule 903 and Final Rule 903(b)

C. Policies and Procedures of Registered SDRs Relating to UICs

XI. Operating Hours of Registered SDRs—Rule 904

XII. Subsequent Revisions to Reported Security-Based Swap Information

A. Reporting Life Cycle Events—Rule 901(e)

1. Description of Proposal and Re-Proposal

2. Final Rules Relating to Life Cycle Events and Response to Comments

a. General Comment and Definition of “Life Cycle Event”

b. Final Rule 901(e)(1)

c. Final Rule 901(e)(2)

d. Reporting Timeframe for Life Cycle Events

e. Re-Proposed Rule 901(e)(2)

f. Additional Comments Regarding Life Cycle Event Reporting

B. Error Corrections—Rule 905

C. Policies and Procedures for Reporting Life Cycle Events and Corrections

XIII. Other Duties of Participants

A. Duties of Non-Reporting Sides To Report Certain Information—Rule 906(a)

B. Duty To Provide Ultimate Parent and Affiliate Information to Registered SDRs—Rule 906(b)

C. Policies and Procedures of Registered Security-Based Swap Dealers and Major Security-Based Swap Participants To Support Reporting—Rule 906(c)

XIV. Other Aspects of Policies and Procedures of Registered SDRs

A. Public Availability of Policies and Procedures

B. Updating of Policies and Procedures

C. Provision of Certain Reports to the Commission

XV. Rule 908—Cross-Border Reach of Regulation SBSR

A. General Considerations

B. Definition of “U.S. Person”

C. Scope of Security-Based Swap Transactions Covered by Requirements of Regulation SBSR—Rule 908(a)

1. Transactions Involving a Direct Counterparty That Is a U.S. Person

2. Transactions Conducted Through a Foreign Branch or Office

3. Transactions Guaranteed by a U.S. Person

4. Transactions Accepted for Clearing by a U.S. Clearing Agency

5. Transactions Involving a Registered Security-Based Swap Dealer or Registered Major Security-Based Swap Participant That Is Not a U.S. Person

6. No Final Rule Regarding Transactions Conducted Within the United States

D. Limitations on Counterparty Reporting Obligations—Rule 908(b)

E. Substituted Compliance—Rule 908(c)

1. General Considerations

2. Substituted Compliance Procedure—Rule 908(c)(2)(i)

3 Security-Based Swaps Eligible for Substituted Compliance—Rule 908(c)(1)

4. Requests for Substituted Compliance—Rule 908(c)(2)(ii)

5 Findings Necessary for Substituted Compliance—Rule 908(c)(2)(iii)

a. Data Element Comparability—Rule 908(c)(2)(iii)(A)

b. Timeframe of Reporting and Public Dissemination—Rule 908(c)(2)(iii)(B)

c. Direct Electronic Access—Rule 908(c)(2)(iii)(C)

d. Trade Repository Capabilities—Rule 908(c)(2)(iii)(D)

e. Memoranda of Understanding—Rule 908(c)(2)(iv)

f. Modification or Withdrawal of Substituted Compliance Order

6. Consideration of Regulatory Reporting and Public Dissemination in the Commission's Analysis of Substituted Compliance

XVI. Other Cross-Border Issues

A. Foreign Public Sector Financial Institutions

B. Foreign Privacy Laws Versus Duty To Report Counterparty IDs

C. Antifraud Authority

D. International Coordination Generally

XVII. Rule 909—SIP Registration

XVIII. Constitutional Questions About Reporting and Public Dissemination

XIX. What Happens If There Are Multiple SDRs?

XX. Section 31 Fees

XXI. Paperwork Reduction Act

A. Definitions—Rule 900

B. Reporting Obligations—Rule 901

1. Summary of Collection of Information

2. Use of Information

3. Respondents

4. Total Initial and Annual Reporting and Recordkeeping Burdens

a. Baseline Burdens

b. Burdens of Final Rule 901

5. Recordkeeping Requirements

6. Collection of Information Is Mandatory

7. Confidentiality of Responses to Collection of Information

C. Public Dissemination of Transaction Reports—Rule 902

1. Summary of Collection of Information

2. Use of Information

3. Respondents

4. Total Initial and Annual Reporting and Recordkeeping Burdens

5. Recordkeeping Requirements

6. Collection of Information Is Mandatory

7. Confidentiality of Responses to Collection of Information

D. Coded Information—Rule 903

1. Summary of Collection of Information

2. Use of Information

3. Respondents

4. Total Initial and Annual Reporting and Recordkeeping Burdens

5. Recordkeeping Requirements

6. Collection of Information Is Mandatory

7. Confidentiality of Responses to Collection of Information

E. Operating Hours of Registered SDRs—Rule 904

1. Summary of Collection of Information

2. Use of Information

3. Respondents

4. Total Initial and Annual Reporting and Recordkeeping Burdens

5. Recordkeeping Requirements

6. Collection of Information Is Mandatory

7. Confidentiality of Responses to Collection of Information

F. Correction of Errors in Security-Based Swap Information—Rule 905

1. Summary of Collection of Information

2. Use of Information

3. Respondents

4. Total Initial and Annual Reporting and Recordkeeping Burdens

5. Recordkeeping Requirements

6. Collection of Information Is Mandatory

7. Confidentiality of Responses to Collection of Information

G. Other Duties of Participants—Rule 906

1. Summary of Collection of Information

2. Use of Information

3. Respondents

4. Total Initial and Annual Reporting and Recordkeeping Burdens

a. For Registered SDRs

b. For Participants

i. Rule 906(a)

ii. Rule 906(b)

iii. Rule 906(c)

5. Recordkeeping Requirements

6. Collection of Information Is Mandatory

7. Confidentiality of Responses to Collection of Information

H. Policies and Procedures of Registered SDRs—Rule 907

1. Summary of Collection of Information

2. Use of Information

3. Respondents

4. Total Initial and Annual Reporting and Recordkeeping Burdens

5. Recordkeeping Requirements

6. Collection of Information Is Mandatory

7. Confidentiality of Responses to Collection of Information

I. Cross-Border Matters—Rule 908

1. Summary of Collection of Information

2. Use of Information

3. Respondents

4. Total Initial and Annual Reporting and Recordkeeping Burdens

5. Recordkeeping Requirements

6. Collection of Information Is Mandatory

7. Confidentiality of Responses to Collection of Information

J. Registration of SDRs as Securities Information Processors—Rule 909

XXII. Economic Analysis

A. Broad Economic Considerations

B. Baseline

1. Current Security-Based Swap Market

a. Security-Based Swap Market Participants

i. Participant Domiciles

ii. Current Estimates of Dealers and Major ParticipantsStart Printed Page 14566

iii. Security-Based Swap Data Repositories

b. Security-Based Swap Transaction Activity

c. Counterparty Reporting

d. Sources of Security-Based Swap Information

2. Global Regulatory Efforts

a. Dealer and Major Swap Participant Definitions for Cross-Border Security-Based Swaps

b. International Regulatory Developments

3. Cross-Market Participation

C. Programmatic Costs and Benefits of Regulation SBSR

1. Regulatory Reporting

a. Programmatic Benefits

b. Programmatic Costs

i. Reporting Security-Based Swap Transactions to a Registered SDR—Rule 901

ii. Registered SDRs—Receipt and Processing of Security-Based Swap Transactions—Rule 901

2. Public Dissemination

a. Programmatic Benefits

b. Programmatic Costs

c. Alternative Approaches to Public Dissemination

3. Interim Phase for Reporting and Public Dissemination

a. Programmatic Benefits

b. Programmatic Costs

4. Use of UICs

a. Programmatic Benefits

b. Programmatic Costs

5. Cross-Border Aspects of Regulation SBSR

a. Programmatic Benefits

b. Programmatic Costs

c. Assessment Costs

6. Other Programmatic Effects of Regulation SBSR

a. Operating Hours of Registered SDRs—Rule 904

b. Error Reporting—Rule 905

c. Other Participants' Duties—Rule 906

d. Registered SDR Policies and Procedures—Rule 907

e. SIP Registration by Registered SDRs—Rule 909

7. Definitions—Rule 900

D. Effects on Efficiency, Competition, and Capital Formation

1. Introduction

2. Regulatory Reporting

3. Public Dissemination

4. Implementation of Regulatory Reporting and Public Dissemination

a. Role of Registered SDRs

b. Interim Phase of Reporting Requirements and Block Rules

c. Use of UICs and Rule 903

d. Rules Assigning the Duty To Report

e. Embargo Rule

5. Impact of Cross-Border Aspects of Regulation SBSR

a. General Considerations

b. Regulatory Reporting and Public Dissemination

c. Substituted Compliance

E. Aggregate Quantifiable Total Costs

XXIII. Regulatory Flexibility Act Certification

XXIV. Statutory Basis and Text of Final Rules

I. Introduction

The Commission is adopting Regulation SBSR, which implements the requirements for regulatory reporting and public dissemination of security-based swap transactions set forth in Title VII of the Dodd-Frank Act.[1] The Dodd-Frank Act was enacted, among other reasons, to promote the financial stability of the United States by improving accountability and transparency in the financial system.[2] The 2008 financial crisis highlighted significant issues in the over-the-counter (“OTC”) derivatives markets, which experienced dramatic growth in the years leading up to the financial crisis and are capable of affecting significant sectors of the U.S. economy. Title VII of the Dodd-Frank Act provides for a comprehensive new regulatory framework for swaps and security-based swaps, by, among other things: (1) Providing for the registration and comprehensive regulation of swap dealers, security-based swap dealers, major swap participants, and major security-based swap participants; (2) imposing clearing and trade execution requirements on swaps and security-based swaps, subject to certain exceptions; (3) creating recordkeeping, regulatory reporting, and public dissemination requirements for swaps and security-based swaps; and (4) enhancing the rulemaking and enforcement authorities of the Commission and the Commodity Futures Trading Commission (“CFTC”).

The Commission initially proposed Regulation SBSR in November 2010.[3] In May 2013, the Commission re-proposed the entirety of Regulation SBSR as part of the Cross-Border Proposing Release [4] and re-opened the comment period for all of its other outstanding Title VII rulemakings.[5]

The Commission received 86 comments that were specifically directed to the comment file (File No. S7-34-10) for the Regulation SBSR Proposing Release, of which 38 were comments submitted in response to the re-opening of the comment period.[6] Of the comments directed to the comment file (File No. S7-02-13) for the Cross-Border Proposing Release, six referenced Regulation SBSR specifically, while many others addressed cross-border issues generally, without specifically referring to Regulation SBSR. The Commission also has considered other comments germane to regulatory reporting and/or public dissemination of security-based swaps that were submitted in other contexts. The comments discussed in this release are listed in the Appendix to the release.

The Commission is now adopting Regulation SBSR largely as re-proposed, with certain revisions suggested by commenters or designed to clarify the rules. In addition, in separate releases, as discussed below, the Commission also is adopting rules relating to SDR registration, duties, and core principles (the “SDR Adopting Release”) [7] and is proposing certain rules, amendments, and guidance relating to Regulation SBSR (“Regulation SBSR Proposed Amendments Release”).[8] The principal aspects of Regulation SBSR—which, as adopted, consists of ten rules, Rules 900 to 909 under the Exchange Act [9] —are briefly described immediately below. A detailed discussion of each rule within Regulation SBSR, as well as how these rules interact with the rules in the SDR Adopting Release, follows in the body of this release.[10]

A. Summary of Final Regulation SBSR

Rule 900, as adopted, sets forth the definitions used throughout Regulation SBSR. The defined terms are discussed in connection with the rules in which they appear.

Rule 901(a), as adopted, assigns the reporting obligation for all security-based swaps except for the following: (1) Clearing transactions; [11] (2) security-based swap transactions executed on a platform [12] that will be submitted to clearing; (3) transactions where there is no U.S. person, registered security-Start Printed Page 14567based swap dealer, or registered major security-based swap participant on either side; and (4) transactions where there is no registered security-based swap dealer or registered major security-based swap participant on either side and there is a U.S. person on only one side. For purposes of this release, the Commission uses the term “covered transactions” to refer to all security-based swaps other than those listed in the four categories above; all covered transactions shall be reported in the manner set forth in Regulation SBSR, as adopted. For covered transactions, Rule 901(a) assigns the duty to report to one side of the transaction (the “reporting side”). The “reporting hierarchy” established in Rule 901(a) is based, where possible, on the registration status (e.g., registration as a security-based swap dealer or major security-based swap participant) of the direct and indirect counterparties to the transaction. In the Regulation SBSR Proposed Amendments Release, the Commission is proposing amendments to Rule 901(a) that would impose reporting obligations for security-based swaps in categories one and two above (i.e., clearing transactions and security-based swap transactions executed on a platform and that will be submitted to clearing).

Rule 901(b), as adopted, provides that if there is no registered security-based swap data repository (“SDR”) that will accept the report, the reporting side must report the transaction to the Commission.[13]

Rule 901(c) sets forth the primary trade information and Rule 901(d) sets forth the secondary trade information that must be reported. For most transactions, the Rule 901(c) information will be publicly disseminated. Information reported pursuant to Rule 901(d) is for regulatory purposes only and will not be publicly disseminated.

Rule 901(e) requires the reporting of life cycle events to the entity to which the original transaction was reported.

Rule 901(i) requires reporting, to the extent the information is available, of security-based swaps entered into before the date of enactment of the Dodd-Frank Act (“pre-enactment security-based swaps”) and security-based swaps entered into after the date of enactment but before Rule 901 becomes fully operative (“transitional security-based swaps”).

B. Role of Registered SDRs

Rule 902(a) requires a registered SDR to publicly disseminate a transaction report immediately upon receipt of information about a security-based swap, except in certain limited circumstances. Pursuant to Rule 902(a), the published transaction report must consist of all the information reported pursuant to Rule 901(c), plus any condition flag contemplated by the registered SDR's policies and procedures that are required by Rule 907. Rule 901(f) requires a registered SDR to timestamp any information submitted to it pursuant to Rule 901(c), (d), (e), or (i), and Rule 901(g) requires a registered SDR to assign a transaction ID to each security-based swap.

Rule 907(a) requires a registered SDR to establish and maintain written policies and procedures that detail how it will receive and publicly disseminate security-based swap transaction information. For example, Rule 907(a)(1) requires policies and procedures that enumerate the specific data elements of a security-based swap that must be reported to the registered SDR, including the data elements specified in Rules 901(c) and 901(d). Rule 907(a)(2) requires policies and procedures that specify one or more acceptable data formats, connectivity requirements, and other protocols for submitting information. Rules 907(a)(3) and 907(a)(4) require policies and procedures for assigning condition flags to the appropriate transaction reports. In addition, Rule 907(c) requires a registered SDR to make its policies and procedures available on its Web site.

Rule 907(e) requires a registered SDR to provide to the Commission, upon request, information or reports related to the timeliness, accuracy, and completeness of data reported to it pursuant to Regulation SBSR and the registered SDR's policies and procedures established thereunder.

Finally, Rule 909 requires a registered SDR also to register with the Commission as a securities information processor (“SIP”).

C. Unique Identification Codes

Rule 903 requires a registered SDR to use “unique identification codes” (“UICs”) to specifically identify a variety of persons and things. The following UICs are specifically required by Regulation SBSR: Counterparty ID, product ID, transaction ID, broker ID, branch ID, trading desk ID, trader ID, platform ID, and ultimate parent ID.

Rule 906(b) requires each participant of a registered SDR to provide the registered SDR with information sufficient to identify the participant's ultimate parent(s) and any affiliate(s) of the participant that are also participants of the registered SDR.

Rule 903(a) provides that, if an internationally recognized standards-setting system (“IRSS”) meeting certain criteria is recognized by the Commission and has assigned a UIC to a person, unit of a person, or product (or has endorsed a methodology for assigning transaction IDs), that UIC must be used by all registered SDRs and their participants in carrying out duties under Regulation SBSR. If the Commission has not recognized an IRSS—or if the Commission-recognized IRSS has not assigned a UIC to a particular person or thing—the registered SDR is required to assign a UIC using its own methodology. Additionally, Rule 903(a) provides that, if the Commission has recognized such a system that assigns UICs to persons, each participant of a registered SDR shall obtain a UIC from or through that system for identifying itself, and each participant that acts as a guarantor of a direct counterparty's performance of any obligation under a security-based swap that is subject to Rule 908(a) shall, if the direct counterparty has not already done so, obtain a UIC for identifying the direct counterparty from or through that system, if that system permits third-party registration without a requirement to obtain prior permission of the direct counterparty. As discussed further in Section X(B)(2), infra, the Commission recognizes the Global LEI System (“GLEIS”), administered by the Regulatory Oversight Committee (“ROC”), as meeting the criteria specified in Rule 903. The Commission may, on its own initiative or upon request, evaluate other IRSSs and decide whether to recognize such other systems.

D. Public Dissemination and Block Trades

Section 13(m)(1)(B) of the Exchange Act [14] authorizes the Commission “to make security-based swap transaction and pricing data available to the public in such form and at such times as the Commission determines appropriate to enhance price discovery.” Section 13(m)(1)(C) of the Exchange Act [15] identifies four categories of security-based swaps and authorizes the Commission “to provide by rule for the public availability of security-based swap transaction, volume, and pricing data.” Section 13(m)(1)(C) further provides that, with respect to each of Start Printed Page 14568these four categories of security-based swaps, “the Commission shall require real-time public reporting for such transactions.” Section 13(m)(1)(D) of the Exchange Act [16] provides that the Commission may require registered entities (such as registered SDRs) to publicly disseminate the security-based swap transaction and pricing data required to be reported under Section 13(m) of the Exchange Act. Finally, Section 13(n)(5)(D)(ii) of the Exchange Act [17] requires SDRs to provide security-based swap information “in such form and at such frequency as the Commission may require to comply with public reporting requirements.”

Under Rule 902, as adopted, a registered SDR must, immediately upon receiving a transaction report of a security-based swap, publicly disseminate the primary trade information of that transaction, along with any condition flags.

In addition, Section 13(m)(1)(E) of the Exchange Act [18] requires the Commission rule for real-time public dissemination of cleared security-based swaps to: (1) “specify the criteria for determining what constitutes a large notional security-based swap transaction (block trade) for particular markets and contracts”; and (2) “specify the appropriate time delay for reporting large notional security-based swap transactions (block trades) to the public.” Section 13m(1)(E)(iv) of the Exchange Act [19] requires the Commission rule for real-time public dissemination of security-based swaps that are not cleared at a registered clearing agency but reported to a registered SDR to contain provisions that “take into account whether the public disclosure [of transaction and pricing data for security-based swaps] will materially reduce market liquidity.”

As discussed in detail below, in response to the comments received and in light of the fact that the Commission has not yet proposed block thresholds, the Commission is adopting final rules that require all security-based swaps—regardless of their notional amount—to be reported to a registered SDR at any point up to 24 hours after the time of execution.[20] The registered SDR will be required, as with all other dissemination-eligible transactions, to publicly disseminate a report of the transaction immediately and automatically upon receipt of the information from the reporting side.

Although the Commission is adopting final rules relating to regulatory reporting and public dissemination of security-based swaps, it intends for the rules relating to public dissemination to apply only on an interim basis. This interim approach is designed to address the concerns of commenters who believed that a public dissemination regime with inappropriately small block trade thresholds could harm market liquidity, and who argued that market participants would need an extended phase-in period to achieve real-time reporting. In connection with its future rulemaking about block thresholds, the Commission anticipates seeking public comment on issues related to block trades. Given the establishment of this interim phase, the Commission is not adopting any other proposed rules relating to block trades.

E. Cross-Border Issues

Regulation SBSR, as initially proposed, included Rule 908, which addressed when Regulation SBSR would apply to cross-border security-based swaps and counterparties of security-based swaps. The Commission re-proposed Rule 908 with substantial revisions as part of the Cross-Border Proposing Release. The Commission is now adopting Rule 908 substantially as re-proposed with some modifications, as discussed in Section XV, infra.[21]

Under Rule 908, as adopted, any security-based swap involving a U.S. person, whether as a direct counterparty or as a guarantor, must be reported to a registered SDR, regardless of where the transaction is executed.[22] Furthermore, any security-based swap involving a registered security-based swap dealer or registered major security-based swap participant, whether as a direct counterparty or as a guarantor, also must be reported to a registered SDR, regardless of where the transaction is executed. In addition, any security-based swap that is accepted for clearing by a registered clearing agency having its principal place of business in the United States must be reported to a registered SDR, regardless of the registration status or U.S. person status of the counterparties and regardless of where the transaction is executed.

In the Cross-Border Proposing Release, the Commission proposed a new paragraph (c) to Rule 908, which contemplated a regime for allowing “substituted compliance” for regulatory reporting and public dissemination with respect to individual foreign jurisdictions. Under this approach, compliance with the foreign jurisdiction's rules could be substituted for compliance with the Commission's Title VII rules, in this case Regulation SBSR. Final Rule 908(c) allows interested parties to request a substituted compliance determination with respect to a foreign jurisdiction's regulatory reporting and public dissemination requirements, and sets forth the standards that the Commission would use in determining whether the foreign requirements were comparable.

F. Compliance Dates

For Rules 900, 907, and 909 of Regulation SBSR, the compliance date is the effective date of this release. For Rules 901, 902, 903, 904, 905, 906, and 908 of Regulation SBSR, a new compliance schedule is being proposed in the Regulation SBSR Proposed Amendments Release. Accordingly, compliance with Rules 901, 902, 903, 904, 905, 906, and 908 is not required until the Commission establishes compliance dates for those rules.

Rules 910 and 911, as proposed and re-proposed, would have established compliance dates and imposed certain restrictions, respectively, during Regulation SBSR's phase-in period. For reasons discussed in the Regulation SBSR Proposed Amendments Release, the Commission has determined not to adopt Rule 910 or 911.[23]

II. Information Required To Be Reported

A. Primary Trade Information—Rule 901(c)

1. Description of Re-Proposed Rule

Rule 901(c), as re-proposed, would have required the reporting of the following primary trade information in real time, which information would Start Printed Page 14569then be publicly disseminated: (1) The asset class of the security-based swap and, if the security-based swap is an equity derivative, whether it is a total return swap or is otherwise designed to offer risks and returns proportional to a position in the equity security or securities on which the security-based swap is based; (2) information that identifies the security-based swap instrument and the specific asset(s) or issuer(s) of any security on which the security-based swap is based; (3) the notional amount(s), and the currenc(ies) in which the notional amount(s) is (are) expressed; (4) the date and time, to the second, of execution, expressed using Coordinated Universal Time (UTC); (5) the effective date; (6) the scheduled termination date; (7) the price; (8) the terms of any fixed or floating rate payments, and the frequency of any payments; (9) whether or not the security-based swap will be cleared by a clearing agency; (10) if both counterparties to a security-based swap are registered security-based swap dealers, an indication to that effect; (11) if applicable, an indication that the transaction does not accurately reflect the market; and (12) if the security-based swap is customized to the extent that the information in items (1) through (11) above does not provide all of the material information necessary to identify such customized security-based swap or does not contain the data elements necessary to calculate the price, an indication to that effect.

2. Discussion of Final Rule 901(c) and Response to Comments

a. General Approach to Required Information

Rules 901(c) and 901(d), as adopted, require the reporting of general categories of information, without enumerating specific data elements that must be reported, except in limited cases. The Commission has made minor revisions to the introductory language of Rule 901(c).[24]

In addition, Rule 907(a)(1), as adopted, requires each registered SDR to establish, maintain, and make publicly available policies and procedures that, among other things, specify the data elements that must be reported.[25] Commenters expressed mixed views regarding this approach. One commenter expressed the view that “any required data should be clearly established by the Commission in its rules and not decided in part by [SDRs].” [26] This commenter further asked the Commission to clarify that any additional fields provided by registered SDRs for reporting would be optional.[27] Two commenters, however, supported the Commission's approach of providing registered SDRs with the authority to define relevant fields on the basis of general guidelines as set by the SEC.[28] One of these commenters noted that it would be difficult for the Commission to specify the security-based swap data fields because security-based swaps are complex products that may require a large number of data fields to be electronically confirmed.[29] In addition, the commenter stated that electronic methods for processing existing and new security-based swaps continue to be developed; accordingly, the commenter stated that establishing a detailed list of reportable fields for each category of security-based swap would be impracticable because such a system “will be outdated with every new product launch or change in market practice,” and would result in a “regulatory scheme that is continuously lagging behind the market.” [30] The commenter cautioned, however, that the Commission must assure that there is consistency among the data fields collected and reported by registered SDRs in the same asset class so that it would be possible to consolidate the data.[31]

The Commission shares the commenter's concerns about the potential difficulties of consolidating data if there are multiple registered SDRs in the same asset class and each establishes different data elements for information that must be reported. Enumerating specific data elements required to be reported could help to promote consistency among the data fields if there are multiple registered SDRs in the same asset class. In addition, as discussed more fully below, such an approach would be more consistent with the approach taken by the CFTC's swap reporting rules. The Commission also acknowledges the comment that the Commission's rules, rather than the policies and procedures of a registered SDR, should specify the information required to be reported. However, the Commission believes on balance that establishing broad categories of required information will more easily accommodate new types of security-based swaps and new conventions for capturing and reporting transaction data. The Commission agrees with the commenter who expressed the view that a rule that attempted to enumerate the required data elements for each category of security-based swap could become outdated with each new product, resulting in a regulatory framework that constantly lagged the market and would need to be updated.[32] The Commission believes that a standards-based approach will more easily accommodate new security-based swap reporting protocols or languages, as well as new market conventions, including new conventions for describing the data elements that must be reported.

One group of commenters noted that the CFTC provided greater specificity regarding the information to be reported.[33] Several commenters generally urged the Commission and the CFTC to establish consistent reporting obligations to reduce the cost of implementing both agencies' reporting rules.[34]

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The Commission agrees that it would be beneficial to harmonize, to the extent practicable, the information required to be reported under Regulation SBSR and under the CFTC's swap reporting rules. However, the Commission believes that it is possible to achieve a significant degree of consistency without including in final Rule 901 a detailed list of required data elements for each security-based swap. Rather than enumerating a comprehensive list of required data elements in the rule itself, Rule 901 identifies broad categories of information in the rule, and a registered SDR's policies and procedures are required to identify specific data elements that must be reported. The Commission believes that the flexibility afforded by Rule 901 will facilitate harmonization of reporting protocols and elements between the CFTC and SEC reporting regimes. In identifying the specific data elements that must be reported, a registered SDR could, in some instances, require reporting of the same data elements that are required to be reported pursuant to the CFTC's swap reporting rules, provided that those data elements include the information required under Rules 901(c) and 901(d). In some cases, however, the differences between the asset classes under the Commission's jurisdiction and those under the CFTC's jurisdiction will require a registered SDR's policies and procedures to specify the reporting of data elements different from those required under the CFTC's rules.

The Commission recognizes that enumerating the specific data elements required to be reported would be more consistent with the approach taken by the CFTC's swap reporting rules. Nevertheless, the Commission believes that the flexibility afforded by the category-based approach in adopted Rule 901(c) could facilitate harmonization. Accordingly, Rule 901(c), as adopted, continues to require the reporting of broad categories of security-based swap information to registered SDRs, without enumerating each data element required to be reported (with a few exceptions, described below).

b. Rule 901(c)(1)

Rule 901(c)(1), as re-proposed, would have required reporting of the asset class of a security-based swap and, if the security-based swap is an equity derivative, whether it is a total return swap or is otherwise designed to offer risks and returns proportional to a position in the equity security or securities on which the security-based swap is based. As described in detail below, the Commission is making several revisions to Rule 901(c)(1) in response to comments. Among other things, these revisions clarify the final rules and eliminate certain unnecessary elements and redundancies. Final Rule 901(c)(1), however, does not expand on the types of data elements that must be reported.

i. Elimination of the Reference to Equity Derivatives

The Commission is eliminating the reference to equity derivatives in final Rule 901(c)(1). Under Regulation SBSR, as proposed and re-proposed, it would have been necessary to identify total return swaps and other security-based swaps designed to offer risks and returns proportional to a position in an equity security or securities, because those security-based swaps would not have been eligible for a block trade exception.[35] However, because the Commission is not adopting block thresholds or other rules relating to the block trade exception at this time, it is not necessary to identify security-based swaps that are not eligible for a block trade exception during the first, interim phase of Regulation SBSR.[36] Accordingly, the Commission is not including in final Rule 901(c)(1) any requirement to identify a security-based swap as a total return swap or a security-based swap otherwise designed to offer risks and returns proportional to a position in the equity security or securities on which the security-based swap is based.

ii. Product ID

Final Rule 901(c)(1) requires the reporting of the product ID [37] of a security-based swap, if one is available. If the security-based swap has no product ID, or if the product ID does not include the information enumerated in Rule 901(c)(1)(i)-(v), then the information specified in subparagraphs (i)-(v) of Rule 901(c)(1) (discussed below) must be reported. Rule 901(c)(1) is designed to simplify the reporting process for security-based swaps that have a product ID by utilizing the product ID in lieu of each of the categories of data enumerated in Rule 901(c)(1)(i)-(v).

The Commission believes that the product ID will provide a standardized, abbreviated, and accurate means for identifying security-based swaps that share certain material economic terms. In addition, the reporting and public dissemination of the product ID could enhance transparency because a transaction report that used a single identifier for the product traded could be easier to read than a transaction report that identified the product traded through information provided in numerous individual data fields. For example, market observers would be able to discern quickly that transaction reports including the same product ID related to trades of the same product. Product IDs also could facilitate risk management and assist relevant authorities in analyzing systemic risk and conducting market surveillance. Furthermore, the Commission believes that the development of security-based swaps with standardized terms could facilitate the development of product IDs that would readily identify the terms of these transactions.

Re-proposed Rule 901(c)(2) would have required reporting of information that identifies the security-based swap instrument and the specific asset(s) or issuer(s) of any security on which the security-based swap is based. Proposed Rule 900 defined “security-based swap instrument” to mean “each security-based swap in the same asset class, with the same underlying reference asset, reference issuer, or reference index.” [38] In the context of final Rule 901(c), the requirement to report the product ID, if one is available, replaces, among other things, the requirement in re-proposed Rule 901(c)(2) to report information that identifies the security-based swap instrument and the specific asset(s) or issuer(s) of any security on which the security-based swap is based. For a security-based swap that has no product ID, Rule 901(c)(1)(i), as adopted, requires reporting of information that identifies the security-based swap, including the asset class of the security-based swap and the specific underlying reference asset(s), reference issuer(s), or reference index. Because the Start Printed Page 14571information that was included in the definition of security-based swap instrument—i.e., the asset class and the underlying reference asset, issuer, or index—will be reported pursuant to adopted Rule 901(c)(1)(i) or included in the product ID, it is no longer necessary to separately define “security-based swap instrument.” Thus, final Rule 900 no longer contains a definition of security-based swap instrument.

Although Rule 900, as proposed, defined the term “product ID,” it did not separately propose to define the term “product.” [39] Moreover, the original definition of the term “unique identification code” included the term “product,” again without defining it.[40] The Commission is now adopting a specific definition of the term “product.” Final Rule 900(aa) defines “product” as “a group of security-based swap contracts each having the same material economic terms except those relating to price and size.” Accordingly, the definition of “product ID” in adopted Rule 900(bb) is revised to mean “the UIC assigned to a product.”

The key aspect of the term “product” is the classifying together of a group of security-based swap contracts that have the same material economic terms, other than those relating to price and size. The assignment of product IDs to groups of security-based swaps with the same material economic terms, other than those relating to price and size, is designed to facilitate more efficient and accurate transaction reporting by allowing reporting of a single product ID in place of the separate data categories contemplated by Rule 901(c)(1)(i)-(v). Product IDs also will make disseminated transaction reports easier to read, and will assist the Commission and other relevant authorities in monitoring for systemic risk and conducting market surveillance.

Although the price and size of a security-based swap are material terms of the transaction—and thus must be reported, along with many other material terms, to a registered SDR pursuant to Rules 901(c) and 901(d)—they do not help distinguish one product from another. The same product can be traded with different prices and with different notional amounts. Thus, by way of example and not of limitation, if otherwise materially similar security-based swaps have different currencies of denomination, underlying assets, or settlement terms, they are different products for purposes of Regulation SBSR and should have different product IDs. An indicium of whether two or more security-based swaps between the same direct counterparties are the same product is whether they could be compressed or netted together to establish a new position (e.g., by a clearing agency or portfolio compression service).[41] If they cannot be compressed or netted, this suggests that there are material differences between the terms of the security-based swaps that do not permit the risks to be fully offset.

The fact that the Commission is requiring products to be distinguished for purposes of regulatory reporting and public dissemination even if a single material economic term differentiates one from another would not prevent the Commission and market participants from analyzing closely related products on a more aggregate basis. For example, products that were otherwise identical but for different currencies of denomination could still be grouped together to understand the gross amount of exposure created by these related products (factoring in exchange rates). However, a product ID system that was not granular enough to separate products based on individual material differences would make it difficult or impossible to analyze positions based solely on those individual differences. For example, if a product ID system permitted otherwise similar security-based swaps with different currencies of denomination to be considered as the same product, it would not be possible to observe risk aggregations according to their particular currencies.[42]

Similarly, the Commission believes that otherwise materially identical security-based swaps with different dates of expiration are different products and therefore must have different product IDs. Delineating products by, among other things, date of expiration will assist the Commission and other relevant authorities in developing a more precise analysis of risk exposure over time. This feature of the “product” definition is different from the approach taken in the originally proposed definition of “security-based swap instrument,” which specifically rejected distinctions based on tenor.[43]

In connection with these requirements, the Commission notes the part of the “product” definition referring to a product as “a group of security-based swap contracts” (plural). If a group of security-based swap contracts is sufficiently standardized such that they all share the same material economic terms (other than price and size), a registered SDR should treat them as the same product and assign them the same product ID. A product could be evidenced, for example, by the fact that a clearing agency makes the group of security-based swap contracts eligible for clearing and will net multiple transactions in that group of contracts into a single open position. In contrast, a security-based swap that has a combination of material economic terms unlike any other security-based swap would not be part of a product group, and the Commission believes that it would be impractical to require registered SDRs to assign a product ID to each of these unique security-based swaps. For such a security-based swap, the transaction ID would be sufficient to identify the security-based swap in the registered SDR's records and would serve the same purpose as a product ID.

The product ID is one type of UIC. As discussed more fully in Section X, infra, Rule 903(a), as adopted, requires a registered SDR to use a UIC, including a product ID, assigned by an IRSS, if an IRSS has been recognized by the Commission and issues that type of UIC. If an IRSS that can issue product IDs has not been recognized by the Commission, Rule 903(a) requires a registered SDR to assign a product ID to that product using its own methodology. Similarly, final Rule 907(a)(5) requires a registered SDR to establish and maintain written policies and procedures for assigning UICs in a manner consistent with Rule 903, which establishes standards for the use of UICs.[44]

One commenter noted that, although there likely will be global standards for identification codes for certain data Start Printed Page 14572fields, such as the LEI, some global identifiers will not exist.[45] The commenter believed that requiring registered SDRs to create identifiers would “result in bespoke implementation among” registered SDRs that would be of limited value absent an industry standard.[46] The commenter recommended that the Commission consider postponing a requirement to establish identifiers “until an international taxonomy exists that can be applied consistently.” [47]

The Commission agrees that a system of internationally recognized product IDs would be preferable to a process under which registered SDRs assign their own product IDs to the same product. Nonetheless, the Commission believes that the use of product IDs, even product IDs created by registered SDRs rather than by an IRSS, could simplify security-based swap transaction reporting and facilitate regulatory oversight of the security-based swap market. In addition, the Commission believes that the requirement for registered SDRs to assign product IDs could provide additional incentive for security-based swap market participants to develop industry-wide product IDs.[48]

One commenter stated that “[i]ndustry utilities should be considered for assigning unique IDs for transactions, products, and legal entities/market participants.” [49] As discussed in Section X(B)(2), infra, the Commission is recognizing the Global LEI System (“GLEIS”), an industry utility administered by the Regulatory Oversight Committee (“ROC”), as meeting the criteria specified in Rule 903, as adopted. The GLEIS and this comment are discussed in Section X(B)(2), infra.

iii. Rule 901(c)(1)(i)

Rule 901(c)(1) requires that, if a security-based swap has no product ID, or if the product ID does not include the information identified in Rule 901(c)(1)(i)-(v), the information specified in Rule 901(c)(1)(i)-(v) must be reported. Final Rule 901(c)(1)(i)-(v) incorporates, with some modifications, information that would have been required under paragraphs (c)(1), (2), (5), (6), (8), and (12) of re-proposed Rule 901, and re-proposed Rule 901(d)(1)(iii).

Rule 901(c)(1)(i), as adopted, generally requires the reporting of information that would have been required to be reported under re-proposed Rules 901(c)(1) and 901(c)(2). Re-proposed Rule 901(c)(1) would have required, in part, reporting of the asset class of a security-based swap.[50] Re-proposed Rule 901(c)(2) would have required the reporting of information identifying the security-based swap instrument and the specific asset(s) or issuer(s) on which the security-based swap is based. Re-proposed Rule 900(dd) would have defined “security-based swap instrument” as “each security-based swap in the same asset class, with the same underlying reference asset, reference issuer, or reference index.” Rule 901(c)(1)(i), as adopted, requires the reporting of information that identifies the security-based swap, including the asset class of the security-based swap and the specific underlying reference asset(s), reference issuer(s), or reference index. Although the defined term “security-based swap instrument” is being deleted from Regulation SBSR for the reasons discussed in Section VII(B)(3), infra, final Rule 901(c)(1)(i) retains the requirement to report the underlying reference asset(s), reference issuer(s), or reference index for the security-based swap, as well as the asset class of the security-based swap.

The Commission received no comments regarding the information required to be reported in Rule 901(c)(1)(i). As stated in the Regulation SBSR Proposing Release, the Commission believes that the reporting and public dissemination of information relating to the asset class of the security-based swap would provide market participants with basic information about the type of security-based swap (e.g., credit derivative or equity derivative) being traded.[51] Similarly, the Commission believes that information identifying the specific reference asset(s), reference issuer(s), or reference index of any security on which the security-based swap is based is fundamental to understanding the transaction being reported, and that a transaction report that lacked such information would not be meaningful.[52] Accordingly, Rule 901(c)(1)(i), as adopted, includes the requirement to report this information.

iv. Rules 901(c)(1)(ii) and (iii)

Re-proposed Rules 901(c)(5) and 901(c)(6) would have required the reporting of, respectively, the effective date of the security-based swap and the scheduled termination date of the security-based swap. These requirements are incorporated into adopted Rules 901(c)(1)(ii) and (iii), which require the reporting of, respectively, the effective date of the security-based swap and the scheduled termination date of the security-based swap. The Commission received no comments regarding the reporting of this information. As stated in the Regulation SBSR Proposing Release, the Commission believes that information specifying the effective date and the scheduled termination date of the security-based swap is fundamental to understanding the transaction being reported, and that a transaction report that lacked such information would not be meaningful.[53] Accordingly, final Rules 901(c)(1)(ii) and (iii) include the requirement to report the effective date and the scheduled termination date, respectively, of the security-based swap.

v. Rule 901(c)(1)(iv)

Re-proposed Rule 901(c)(8) would have required the reporting of any fixed or floating rate payments of a security-based swap, and the frequency of any payments. Re-proposed Rule Start Printed Page 14573901(d)(1)(iii) would have required the reporting of the amount(s) and currenc(ies) of any up-front payment(s) and a description of the terms and contingencies of the payment streams of each direct counterparty to the other. In the Regulation SBSR Proposing Release, the Commission noted that the terms of any fixed or floating rate payments and the frequency of any payments are among the terms that would be fundamental to understanding a security-based swap transaction.[54] One commenter echoed the importance of information concerning the payment streams of security-based swaps.[55]

Another commenter stated that proposed Rule 901(d)(1)(iii) was unclear about the proposed form of the description of the terms and contingencies of the payment streams, and that the requirements of proposed Rule 901(d)(1)(iii) appeared to be duplicative of proposed Rule 901(d)(1)(v), which would have required reporting of the data elements necessary for a person to determine the market value of the transaction.[56] The commenter also suggested that the Commission consider the utility of requiring reporting of the terms of fixed or floating rate payments, as required by re-proposed Rule 901(c)(8).[57]

The Commission continues to believe that, for a security-based swap that provides for periodic exchange of cash flows, information concerning those payment streams is fundamental to understanding the terms of the transaction. The Commission acknowledges, however, that re-proposed Rules 901(c)(8), 901(d)(1)(iii), and 901(d)(v) contained overlapping requirements concerning the payment streams of a security-based swap. Accordingly, the Commission is revising Rules 901(c) and 901(d) to streamline and clarify the information required to be reported with respect to the payment streams of a security-based swap.

Specifically, final Rule 901(c)(1)(iv) requires the reporting of any standardized fixed or floating rate payments, and the frequency of any such payments. As discussed more fully in Section II(C)(3)(d), infra, final Rule 901(d)(3) requires the reporting of information concerning the terms of any fixed or floating rate payments, or otherwise customized or non-standardized payment streams, including the frequency and contingencies of any such payments, to the extent that this information has not been reported pursuant to Rule 901(c)(1). Thus, Rule 901(c)(1)(iv) requires the reporting of information concerning standardized payment streams, while Rule 901(d)(3) requires the reporting of information concerning customized payment streams. In addition, as discussed more fully below, final Rule 901(d)(5) requires reporting of any additional data elements included in the agreement between the counterparties that are necessary for a person to determine the market value of the transaction, to the extent that such information has not already been reported pursuant to Rule 901(c) or other provisions of Rule 901(d). The Commission believes that these changes to Rules 901(c) and 901(d) will avoid potential redundancies in the reporting requirements and will clarify the information required to be reported with respect to the payment streams of a security-based swap.

Like other primary trade information reported pursuant to Rule 901(c), information about standardized payment streams reported pursuant to Rule 901(c)(1)(iv) will be publicly disseminated. The Commission envisions that, rather than disseminating such information as discrete elements, this information could be inherent in the product ID of a security-based swap that has a product ID. Information concerning non-standard payment streams that is reported pursuant to Rule 901(d)(3), like other secondary trade information, will be available for regulatory purposes but will not be publicly disseminated. Re-proposed Rule 901(c)(8) would have required reporting of the terms of any fixed or floating rate payments, standardized or non-standardized, and the frequency of such payments, and re-proposed Rule 902(a) would have required the public dissemination of that information. In addition, as noted above, one commenter discussed the importance of the availability of information concerning payment streams.[58] Nonetheless, the Commission believes that public dissemination of the non-standard payment terms of a customized security-based swap would be impractical, because a bespoke transaction by definition could have such unique terms that it would be difficult to reflect the full material terms using any standard dissemination protocol. In addition, it is not clear that the benefits of publicly disseminating information concerning these non-standard payment streams would justify the costs of disseminating the information. However, the Commission will have access to regulatory reports of such transactions, which should facilitate regulatory oversight and assist relevant authorities in monitoring the exposures of security-based swap market participants. Accordingly, Rule 901(d)(3), as adopted, requires the reporting of information concerning the terms of any non-standard fixed or floating rate payments, or otherwise customized or non-standardized payment streams, including the frequency and contingencies of any such payments.

One commenter expressed the view that, without further clarification, market participants could adopt different interpretations of the requirement in re-proposed Rule 901(c)(8) to report the terms of fixed or floating rate payments, resulting in inconsistent reporting to registered SDRs; the commenter recommended, therefore, limiting the reportable fields to tenor and frequency, where applicable.[59]

The Commission shares the commenter's concerns that, without guidance, market participants could adopt different interpretations of the requirement to report the terms of fixed or floating rate payments. The Commission notes, however, that final Rules 907(a)(1) and 907(a)(2) require a registered SDR to establish and maintain written policies and procedures that enumerate the specific data elements that must be reported and that specify the protocols for submitting information, respectively. The Commission believes that, read together, Rules 907(a)(1) and 907(a)(2) provide registered SDRs with flexibility to determine the appropriate conventions for reporting these data elements, including the terms of a security-based swap's fixed or floating rate payments. Thus, although Rule 901(c) itself does not specify the precise manner for reporting a security-based swap's fixed or floating rate payments, the policies and procedures of registered SDRs must do so. The Commission notes, further, that final Rule 906(c), among other things, requires SDR participants that are registered security-based swap dealers and registered major security-based swap participants to establish, Start Printed Page 14574maintain, and enforce written policies and procedures that are reasonably designed to ensure that they comply with any obligations to report information to a registered SDR in a manner consistent with Regulation SBSR.

vi. Rule 901(c)(1)(v)

Re-proposed Rule 901(c)(12) would have required a reporting side to indicate, if applicable, that the information reported under subparagraphs (1)-(11) of re-proposed Rule 901(c) for a customized security-based swap does not provide all of the material information necessary to identify the customized security-based swap or does not contain the data elements necessary to calculate its price. The Commission is adopting the substance of re-proposed Rule 901(c)(12) and locating it in final Rule 901(c)(1)(v). Rule 901(c)(1)(v), as adopted, provides that, if a security-based swap is customized to the extent that the information provided in paragraphs (c)(1)(i) through (iv) of Rule 901 does not provide all of the material information necessary to identify such customized security-based swap or does not contain the data elements necessary to calculate the price, the reporting side must include a flag to that effect. As discussed more fully in Section VI(G), infra, the registered SDRs should develop a condition flag to identify bespoke transactions because absent such a flag, users of public reports of bespoke transactions might receive a distorted impression of the market.

One commenter argued that “publicly disseminated data for trades with a non-standard feature flag activated will be of limited usefulness and could be misleading.” [60] The commenter expressed the view that dissemination of information regarding highly structured transactions should not occur until an analysis regarding the impact and potential for misleading the investing public has been conducted.[61] A second commenter, however, endorsed the approach being adopted by the Commission.[62] The Commission acknowledges the concerns that the dissemination of transaction reports for highly customized trades could be misleading or of limited usefulness. However, as discussed more fully in Section VI(D)(2)(a), infra, the Commission believes that public dissemination of the key terms of a customized security-based swap, even without all of the details of the transaction, could provide useful information to market observers, including information concerning the pricing of similar products and information relating to the relative number and aggregate notional amounts of transactions in bespoke products versus standardized products. In addition, the Commission believes that the condition flag signaling that the transaction is a customized trade, and therefore that the reported information does not provide all of the details of the transaction, will minimize the potential for confusion and help to assure that the publicly disseminated reports of these transactions are not misleading. For these reasons, the Commission is declining, at this time, to undertake the study recommended by the commenter.

A third commenter indicated that Rule 901 should go further and require reporting of additional information necessary to calculate the price of a security-based swap that is so customized that the price cannot be calculated from the reported information.[63] The Commission generally agrees that transaction reports of customized security-based swaps should be as informative and useful as possible. However, it is not clear that the benefits of publicly disseminating all of the detailed and potentially complex information that would be necessary to calculate the price of a highly customized security-based swap would justify the costs of disseminating that information. Accordingly, Rule 901(c)(1)(v), as adopted, does not require reporting of this information, and it will not be publicly disseminated.[64]

This commenter also expressed concern that a “composite” security-based swap composed of two swaps grafted together could be used to avoid reporting requirements; the commenter recommended that, if at least one of the transactions could be disaggregated and reported in a format so that its price could be calculated, Regulation SBSR should require that the security-based swap be disaggregated and the component parts be reported separately.[65] In considering the commenter's concern the Commission notes the following:

To begin, the Commission understands that market participants may execute so-called “package trades” that are composed of multiple components, or “legs,” some of which may be security-based swaps. Though such package trades are executed at a single price, each leg is separately booked and processed. In these cases, Regulation SBSR does in fact require a reporting side to separately report (and for the SDR to separately disseminate) each security-based swap component of the package trade.[66]

However, if a market participant combines the economic elements of multiple instruments into one security-based swap contract, Regulation SBSR requires a single report of the transaction. The Commission understands the commenter's concerns regarding potential attempts to evade the post-trade transparency requirements. Such efforts could undermine Regulation SBSR's goals of promoting transparency and efficiency in the security-based swap markets and impede the Commission's ability to oversee those markets. The Commission does not believe, however, that either a registered SDR or a reporting side should be required to disaggregate a customized security-based swap if it consists of a single contract incorporating elements of what otherwise might have been two or more Start Printed Page 14575security-based swaps. In the absence of evidence of a significant amount of such “composite” security-based swap transactions and structuring other than through package trades, the Commission does not at this time believe that devising protocols for disseminating them in a disaggregated fashion would be practical. Importantly, however, and as discussed more fully in Section VI(D)(2)(a), infra, the primary trade information of any complex or bespoke security-based swap, including “composite” security-based swaps as described by the commenter, will be publicly disseminated, as required by Rule 902(a), including the specific underlying reference asset(s), reference issuer(s), or reference index for the transaction, as required by Rule 901(c)(1).[67] The Commission believes that the public dissemination of the primary trade information, even without all of the material economic terms of the transaction that could affect its pricing, could provide market observers with useful information, including information concerning the pricing of similar products and the relative number and aggregate notional amounts of transactions in complex and other bespoke transactions versus transactions in standardized products. The Commission further notes that since all of the material economic terms of a “composite” security-based swap must be reported to a registered SDR, including the data elements required by Rule 901(d),[68] the Commission itself will have complete access to these details.[69]

The commenter also expressed the view that Regulation SBSR should clearly define the meaning of a security-based swap that is so customized that its price is not ascertainable.[70] The Commission does not believe that it is necessary to further define the term “customized security-based swap” for purposes of Rule 901(c)(1)(v). The condition flag required under adopted Rule 901(c)(1)(v) will notify market participants that the security-based swap being reported does not have a product ID and is customized to the extent that the information provided in Rules 901(c)(1)(i)-(iv) does not provide all of the material information necessary to identify the security-based swap or does not contain the data elements necessary to calculate the price. Thus, market participants will know that a customized security-based swap transaction was executed, and that the information reported pursuant to Rules 901(c)(1)(i)-(iv) provides basic but limited information about the transaction. The Commission believes, further, that Rule 901(c)(1)(v) provides clear guidance with respect to when a transaction is customized to the extent that the reporting side must attach a condition flag that identifies the transaction as a bespoke transaction, i.e., when the information reported pursuant to Rules 901(c)(1)(i)-(iv) does not provide all of the material information necessary to identify the security-based swap or does not contain the data elements necessary to calculate the price. Accordingly, the Commission does not believe that it is necessary, at this time, to further define what constitutes a customized security-based swap for purposes of Regulation SBSR.

c. Rule 901(c)(2)

Re-proposed Rule 901(c)(4) would have required reporting of the date and time, to the second, of the execution of a security-based swap, expressed using Coordinated Universal Time (“UTC”).[71] In the Regulation SBSR Proposing Release, the Commission stated that information concerning the time of execution would allow security-based swap transactions to be ordered properly, and would provide the Commission with a detailed record of when a security-based swap was executed.[72] The Commission further noted that, without the time of execution, market participants and relevant authorities would not know whether the transaction reports that they are seeing reflect the current state of the market.[73] In both the proposal and the re-proposal, the Commission defined “time of execution” to mean “the point at which the counterparties to a security-based swap become irrevocably bound under applicable law.” [74]

One commenter expressed the view that time of execution should be reported at least to the second, and by finer increments where practicable.[75] A second commenter raised timestamp issues in connection with proposed Rule 901(f), which would have required a registered SDR to timestamp transaction information submitted to it under Rule 901. The commenter stated that especially for markets for which there are multiple security-based swap execution facilities and markets where automated, algorithmic trading occurs, “the sequencing of trade data for transparency and price discovery, as well as surveillance and enforcement purposes, will require much smaller increments of time-stamping.” [76] The commenter urged the Commission to revise proposed Rule 901(f) to require a registered SDR to time stamp information that it receives in increments shorter than one second, stating that time stamps shorter than one second are technologically feasible, affordable, and in use.[77]

The Commission understands that trading in the security-based swap market does not yet occur as fast or as frequently as in the equities market, which makes recording the time of security-based swap executions in subsecond increments less necessary for surveillance purposes. While some market participants may have the capacity to record trades in subsecond intervals, others may not. Given the Start Printed Page 14576potential costs of requiring all market participants to utilize subsecond timestamps, the Commission believes that it is not necessary or appropriate at this time to require reporting of the time of execution in subsecond increments.[78] Accordingly, the Commission is adopting Rule 901(c)(4) as proposed and re-proposed, but renumbering it as final Rule 901(c)(2). The Commission will continue to monitor developments in the security-based swap market and could in the future reconsider whether reporting time of execution in subseconds would be appropriate.

One commenter discussed the time of execution for a voice trade in the context of proposed Rule 910(a), which addressed the reporting of pre-enactment security-based swaps.[79] The commenter noted that in the Regulation SBSR Proposing Release, the Commission stated that “proposed Rule 910(a) would not require reporting parties to report any data elements (such as the time of execution) that were not readily available. Therefore, proposed Rule 910(a) would not require reporting parties to search for or reconstruct any missing data elements.” [80] The commenter disagreed with this assertion in the context of voice trades, stating that the time of entry of the voice trade into the system is typically provided, but not the actual execution time of the trade. The commenter stated that “[p]roviding the actual execution time in the case of voice trades would then prove extremely challenging and invasive for the marketplace.” [81] Similarly, one commenter requested that the “Commission clarify that participants are not required to provide trade execution time information for pre-enactment security-based swap transactions and that going-forward, such information need only be provided when industry-wide time stamping practices are implemented.” [82]

With respect to these concerns, the Commission notes, first, that it is not adopting Rule 910, but is proposing a new compliance schedule for Rules 901, 902, 903, 904, 905, 906, and 908 of Regulation SBSR in the Regulation SBSR Proposed Amendments Release. The Commission emphasizes, however, that proposed Rule 910(a) would not have required market participants to report information for a pre-enactment security-based swap that was not readily available, or to reconstruct that information. Thus, Rule 910(a), as proposed, would not have required market participants to provide the time of execution for an orally negotiated pre-enactment security-based swap, unless such information was readily available. Likewise, final Rule 901(i) does not require reporting of the date and time of execution for an orally negotiated pre-enactment or transitional security-based swap, unless such information is readily available.[83] However, for all other security-based swaps, including voice trades, final Rule 901(c)(2) requires reporting of the date and time of execution, to the second, of the security-based swap. The Commission noted in the Regulation SBSR Proposing Release that trades agreed to over the phone would need to be systematized by being entered in an electronic system that assigns a time stamp to report the date and time of execution of a security-based swap.[84] The Commission continues to believe that it is consistent with Congress' intent for orally negotiated security-based swap transactions to be systematized as quickly as possible.[85] The Commission notes, further, that market participants also must report the time of execution for voice-executed trades in other securities markets (e.g., equities and corporate bonds).[86] Knowing the date and time of execution of a security-based swap is important for reconstructing trading activity and for market surveillance purposes. Accordingly, the Commission continues to believe that the regulatory interest in having information regarding the date and time of execution for all security-based swaps, including orally negotiated security-based swaps, justifies the burden on market participants of recording and reporting this information.

In addition, the Commission is adopting, as proposed and re-proposed, the requirement for all times of execution reported to and recorded by registered SDRs to be in UTC. In the Regulation SBSR Proposing Release, the Commission explained its reasons for proposing to require that the date and time of execution be expressed in UTC.[87] The Commission noted that security-based swaps are traded globally, and expected that many security-based swaps subject to the Commission's reporting and dissemination rules would be executed between counterparties in different time zones. In the absence of a uniform time standard, it might not be clear whether the date and time of execution were being expressed from the standpoint of the time zone of the first counterparty, the second counterparty, or the registered SDR. Mandating a common standard for expressing date and time would alleviate any potential confusion as to when the security-based swap was executed. The Commission believed that UTC was an appropriate and well known standard suitable for purposes of reporting the time of execution of security-based swaps. The Commission received no comments regarding the use of UTC for reporting the time of execution. For the reasons set out in the Regulation SBSR Proposing Release, the Commission continues to believe that UTC is appropriate for security-based swap transaction reporting. Accordingly, the Commission is adopting this requirement as proposed and re-proposed.

Finally, the Commission is adopting the definition of “time of execution” as proposed and re-proposed, and renumbering it as final Rule 900(ii). One commenter stated that the time at which a transaction becomes legally binding may not be the same for all products.[88] The commenter further noted that, in some cases primary terms are not formed until the security-based swap is confirmed, and that the full terms of a total return swap might not be formed until the end of the day “and therefore the [total return swap] is not executed and confirmed until the end of the day.” [89] A second commenter stated that “the obligation to report should not be triggered until price, size, and other transaction terms required to be reported are available.” [90] The Commission understands the concerns of these commenters and believes that the definition of “time of execution” provides sufficient flexibility to address these commenters' concerns. For example, if the key terms of a security-based swap, such as price or size, are so indefinite that they cannot be reported to a registered SDR until some time after Start Printed Page 14577the counterparties agree to preliminary terms, the counterparties may not have executed the security-based swap under applicable law. Alternatively, even if the counterparties determine that their preliminary agreement constitutes an execution, the reporting timeframe adopted herein, which will allow a security-based swap to be reported at any point up to 24 hours after the time of execution, should address the concerns raised by the commenters.

A third commenter urged the Commission to revise the definition to equate time of execution with “the time of execution of the confirmation.” [91] The Commission declines to do so. While confirmation is an important aspect of post-trade processing, performance of the actions necessary to confirm a transaction is within the discretion of the counterparties and their agents. Defining the “time of execution” to mean the time that a confirmation is issued could create incentives for counterparties to delay confirmation and thus the reporting of the transaction. The Commission notes that Section 13(m)(1)(A) of the Exchange Act [92] defines “real-time public reporting” as reporting certain security-based swap data “as soon as technologically practicable after the time at which the security-based swap transaction has been executed.” The Commission believes this provision is most appropriately implemented by linking obligations to the time at which the counterparties become bound to the terms of the transaction—i.e., the time of execution—rather than some indefinite point in the future, such as the time when the confirmation is issued.

d. Rule 901(c)(3)

Re-proposed Rule 901(c)(7) would have required the reporting of the price of a security-based swap. Re-proposed Rule 901(d)(1)(iii) would have required the reporting of the “amount(s) and curren(cies) of any up-front payment(s) and a description of the terms and contingencies of the payment streams of each direct counterparty to the other.” Final Rule 901(c)(3) combines these elements and requires the reporting of “[t]he price, including the currency in which the price is expressed and the amount(s) and currenc(ies) of any up-front payments.” [93] The Commission believes that including in final Rule 901(c)(3) the explicit requirement to report the currency in which the price is expressed will help to clarify the information required to be reported.[94] Re-proposed Rule 901(c)(3) is being re-numbered as final Rule 901(c)(4).[95]

Rule 901(c)(3), as adopted, requires the reporting of the amount(s) and currenc(ies) of any up-front payments, a requirement that was included in re-proposed Rule 901(d)(1)(iii). The Commission believes that information concerning the amount(s) and currenc(ies) of any up-front payment(s) will help regulators and market observers understand the reported price of a security-based swap, and that the public dissemination of this information will further the transparency goals of Title VII. The Commission also believes that Rule 901(c) will be simpler if all considerations relating to the price are consolidated into a single provision. Accordingly, Rule 901(c)(3), as adopted, requires the reporting and public dissemination of the amount(s) and currenc(ies) of any up-front payment(s) along with other pricing information for the security-based swap.

As discussed in the Regulation SBSR Proposing Release, the price of a security-based swap could be expressed in terms of the commercial conventions used in that asset class.[96] The Commission recognized that the price of a security-based swap generally might not be a simple number, as with stocks, but would likely be expressed in terms of the quoting conventions of the security-based swap. For example, a credit default swap could be quoted in terms of the economic spread—which is variously referred to as the “traded spread,” “quote spread,” or “composite spread”—expressed as a number of basis points per annum. Alternately, a credit default swap might be quoted in terms of prices representing a discount or premium over par.[97] In contrast, an equity or loan total return swap might be quoted in terms of a LIBOR-based floating rate payment, expressed as a floating rate plus a fixed number of basis points.[98] As discussed further in Section IV, infra, final Rule 907(a)(1) requires a registered SDR to establish, maintain, and make publicly available policies and procedures that specify the data elements of a security-based swap that must be reported, including elements that constitute the price. The Commission believes that, because of the many different conventions that exist to express the price in various security-based swap markets and new conventions that might arise in the future, registered SDRs should have flexibility to select appropriate conventions for denoting the price of different security-based swap products.

One commenter expressed concern that disseminating prices of margined and unmargined transactions together could mislead the market about the intrinsic prices of the underlying contracts.[99] Noting that the CFTC proposed a field for “additional price notation” that would be used to provide information, including margin, that would help market participants evaluate the price of a swap, the commenter recommended that the Commission and the CFTC harmonize their approaches to assure that the market has an accurate picture of prices.[100] The Commission agrees that publicly disseminated transaction reports should be as informative as possible. However, the Commission believes, at this time, that it could be impractical to devise additional data fields for describing the potentially complex margin requirements governing a security-based swap. Furthermore, it could be difficult if not impossible to attribute a portion of the price to a particular margin arrangement when the overall price represents the aggregation of a number of different factors into a single variable. The Commission notes that the bespoke flag required by Rule 901(c)(1)(v) is designed to inform market observers when a security-based swap is customized to the extent that the other data elements required by Rule 901(c)(1) do not provide all of the material information necessary to identify the security-based swap or provide sufficient information to calculate the price.

Another commenter expressed concern that disseminating the terms of the floating rate payment for an equity swap, which is often comprised of a benchmark rate plus or minus a spread and thus contains information about the direction of a customer transaction (positive spreads indicate a customer long swap and negative spreads indicate a customer short swap) may harm customers by offering other market participants the opportunity to anticipate their execution strategy.[101] Start Printed Page 14578The commenter believes that the spread value should thus be masked for equity security-based swaps when disclosing the price or terms of the floating rate payment.[102] As noted above, the Commission believes that publicly disseminated transaction reports should be as informative as possible. The floating rate payment of an equity security-based swap, including the spread, is an important part of the price of an equity security-based swap, and as such the Commission continues to believe that it should be disseminated. Not disseminating this information would undermine one of the key aspects of public dissemination, namely price discovery. The Commission further understands that in other markets—such as the cash equity market and the bond market—similar information is publically disclosed or can be inferred from public market data, which informs on the direction of the customer transaction.[103]

e. Rule 901(c)(4)

Re-proposed Rule 901(c)(3) would have required reporting of the notional amount(s) and the currenc(ies) in which the notional amount(s) is expressed. The Commission is adopting this rule as re-proposed, but re-numbering it as Rule 901(c)(4).

The Commission received two comments regarding the reporting and public dissemination of the notional amount of a security-based swap. One commenter believed that, “in the case of some asset classes, there is not a universal definition of the notional amount of the trade. This is particularly the case where the notional amount is not confirmable information.” [104] To address this issue, the commenter recommended that the Commission provide guidelines, such as those developed by the Federal Reserve Bank of New York, for reporting the notional amount of a security-based swap.[105]

As discussed below, final Rules 907(a)(1) and 907(a)(2) require a registered SDR to establish and maintain written policies and procedures that enumerate the specific data elements that must be reported and that specify the protocols for submitting information, respectively. The Commission believes that, read together, Rules 907(a)(1) and 907(a)(2) provide registered SDRs with flexibility to determine the appropriate conventions for reporting all required data elements, including the notional amount. Thus, although Rule 901(c) itself does not specify the precise manner for reporting a security-based swap's notional amount, the policies and procedures of registered SDRs must do so. The Commission believes that a registered SDR could choose to incorporate the guidance noted by the commenter, or other appropriate guidance, into its policies and procedures for reporting notional amounts.

Another commenter suggested that the Commission, to mitigate adverse impacts on market liquidity, should—like the CFTC—adopt masking thresholds, rather than requiring public dissemination of the precise notional amount of a security-based swap transaction.[106] The commenter noted that FINRA's Trade Reporting and Compliance Engine (“TRACE”) system [107] uses masking conventions, and suggested applying that approach to the swap and security-based swap markets by “computing how much market risk is represented by the TRACE masking thresholds and using those numbers to map the masking thresholds into other asset classes.” [108]

The Commission appreciates the commenter's concerns regarding the uncertainty of the potential effects of public dissemination of security-based swap transaction reports on liquidity in the security-based swap market. As discussed further in Section VII, infra, the rules adopted in this release will allow the reporting, on an interim basis, of a security-based swap transaction at any time up to 24 hours after the time of execution (or, if 24 hours after the time of execution would fall on a day that is not a business day, by the same time on the next day that is a business day). This timeframe is designed in part to minimize potential adverse impacts of public dissemination on liquidity during the interim phase of Regulation SBSR's implementation, as market participants grow accustomed to operating in a more transparent environment. Accordingly, the Commission does not believe that it is necessary at this time to adopt a masking convention for purposes of reporting and publicly disseminating the notional amount of security-based swap transactions.[109]

f. Rule 901(c)(5)

Rule 901(c)(10), as proposed and re-proposed, would have required the reporting side to indicate whether both counterparties to a security-based swap are security-based swap dealers. In the Regulation SBSR Proposing Release, the Commission stated its preliminary belief that such an indication would enhance transparency and provide more accurate information about the pricing of security-based swap transactions.[110] The Commission noted, further, that prices of security-based swap transactions involving a dealer and non-dealer are typically “all-in” prices that include a mark-up or mark-down, while interdealer transactions typically do not. Thus, the Commission believed that requiring an indication of whether a security-based swap was an interdealer transaction or a transaction between a dealer and a non-dealer counterparty would enhance transparency by allowing market participants to more accurately assess the reported price of a security-based swap.[111]

Commenters expressed mixed views regarding this proposed requirement. One commenter supported a requirement to include the counterparty type in security-based swap transaction reports.[112] Another commenter, however, recommended that the Commission eliminate the interdealer indication because “[e]xcluding this field from the information required to be reported to [a registered SDR] in real time will bring the scope of required Start Printed Page 14579data in line with existing dissemination functionality.” [113] A third commenter expressed concern that disseminating information that both counterparties are security-based swap dealers would reduce the anonymity of participants, ultimately resulting in “worse pricing and reduced liquidity for end-users.” [114]

The Commission believes that publicly disseminating an indication of whether both sides of a security-based swap are registered security-based swap dealers would enhance transparency in the security-based swap market by helping market participants to assess the reported price of a security-based swap. Although the Commission understands the concerns about potential burdens that could result from changes to existing dissemination practices, the required indicator should not impose significant burdens. Furthermore, the Commission believes that any potential burden created by requiring the indicator will be justified by the transparency benefits of publicly disseminating this information. The Commission notes that flagging transactions between two registered security-based swap dealers does indeed provide information to the public that the transaction involved two dealers, thus restricting the set of possible counterparties. However, since a majority of security-based swap transactions presently have a dealer as one of the counterparties, an interdealer flag is unlikely to enable market observers to identify counterparties to particular transactions. Also, although there is a limited group of entities that likely would be required to register as security-based swap dealers that are currently active in the security-based swap market, this number is more than two.[115] The Commission also notes that in the bond market interdealer transactions are flagged as part of TRACE's public dissemination of corporate bond trades. Therefore, the Commission does not believe that flagging transactions between two registered security-based swap dealers would ultimately result in “worse pricing and reduced liquidity for end-users.” [116]

The Commission, therefore, is adopting this requirement as final Rule 901(c)(5), with one revision. The Commission has added the word “registered” before the term “security-based swap dealer.” Therefore, the final rule requires an indication only when there is a registered security-based swap dealer on both sides of the transaction. As discussed further below, the Commission seeks to avoid imposing costs on market participants for assessing whether or not they are security-based swap dealers solely for purposes of Regulation SBSR.[117] Therefore, counterparties would have to be identified for purposes of Rule 901(c)(5), as adopted, only if they are registered security-based swap dealers.

g. Rule 901(c)(6)

Re-proposed Rule 901(c)(9) would have required the reporting side to indicate whether or not a security-based swap would be cleared by a clearing agency. This requirement is being adopted substantially as proposed but numbered as Rule 901(c)(6), with an additional clarification, described below. In the Regulation SBSR Proposing Release, the Commission noted that the use of a clearing agency to clear a security-based swap could affect the price of the security-based swap because counterparty credit risk might be diminished significantly if the security-based swap were centrally cleared.[118] Thus, the Commission preliminarily believed that information concerning whether a security-based swap would be cleared would provide market participants with information that would be useful in assessing the reported price of the security-based swap, thereby enhancing price discovery.[119] One commenter agreed, stating that it “will likely also be necessary to identify whether a price is associated with a bilateral trade or a cleared trade . . . as these distinctions may well have price impacts.” [120]

The Commission continues to believe that information concerning whether a security-based swap will be cleared is useful in assessing the price of the security-based swap and will facilitate understanding of how risk exposures may change after the security-based swap is executed. Accordingly, final Rule 901(c)(6) requires the reporting side to indicate “whether the direct counterparties intend that the security-based swap will be submitted to clearing.” Reporting of whether the direct counterparties intend that the security-based swap will be submitted to clearing, rather than whether the security-based swap will be cleared, as originally proposed, more accurately reflects the process of entering into and clearing a security-based swap transaction. It may not be known, when the transaction is reported, whether a registered clearing agency will in fact accept the security-based swap for clearing. The Commission received no comments on this issue. The Commission believes, however, that the modified language enhances the administration of the rule.

The Commission notes that, in some cases, the identity of the registered clearing agency that clears a security-based swap could be included in the product ID of a security-based swap. If the identity of the registered clearing agency is included in the product ID, no information would have to be separately reported pursuant to Rule 901(c)(6).

h. Rule 901(c)(7)

Re-proposed Rule 901(c)(11) would have required a reporting side to indicate, if applicable, that a security-based swap transaction does not accurately reflect the market. In the Regulation SBSR Proposing Release, the Commission noted that, in some instances, a security-based swap transaction might not reflect the current state of the market.[121] This could occur, for example, in the case of a late transaction report, which by definition would not represent the current state of the market, or in the case of an inter-affiliate transfer or assignment, where the new counterparty might not have an opportunity to negotiate the terms, including the price, of taking on the position.[122] The Commission believed that there might not be an arm's length negotiation of the terms of the security-based swap transaction, and disseminating a transaction report without noting that fact would be inimical to price discovery. Accordingly, Rule 901(c)(11), as proposed and as re-proposed, would have required a reporting side to note such circumstances in its transaction report to the registered SDR.

Rule 907(a)(4), as proposed and as re-proposed, would have required a registered SDR to establish and maintain written policies and procedures that describe, among other things, how a reporting side would report security-based swap transactions that, in the estimation of the registered SDR, do not accurately reflect the market. The Commission noted its expectation that these policies and procedures would require, among other things, different Start Printed Page 14580indicators being applied in different situations.[123]

One commenter suggested that Rule 901 should require the counterparties to a security-based swap to disclose specific reasons why a security-based swap does not accurately reflect the market because it would not be possible to understand the reported prices without that information.[124] The commenter also stated that the Commission, rather than registered SDRs, should specify the indicators used for such transaction reports.[125]

The Commission agrees in general that an effective regime for public dissemination should provide market observers with appropriate information to assist them in understanding the disseminated transaction information. The Commission also agrees with the commenter that it could be useful to market observers to provide more specific information about particular characteristics of or circumstances surrounding a transaction that could affect its price discovery value. Therefore, after careful consideration, the Commission is adopting the substance of re-proposed Rule 901(c)(11), but is modifying the rule text to reflect final Rule 907(a)(4), and is renumbering the requirement as Rule 901(c)(7). Rule 901(c)(7), as adopted, requires reporting of any applicable flag(s) pertaining to the transaction that are specified in the policies and procedures of the registered SDR to which the transaction will be reported. Rule 907(a)(4)(i) requires a registered SDR to establish and maintain written policies and procedures for “identifying characteristic(s) of a security-based swap, or circumstances associated with the execution of a security-based swap, that could, in the fair and reasonable estimation of a registered security-based swap data repository, cause a person without knowledge of these characteristic(s) or circumstance(s) to receive a distorted view of the market.” A registered SDR also must establish flags to denote these characteristic(s) or circumstance(s).[126] As discussed in Section VI(G), infra, the Commission generally believes that a registered SDR should consider providing condition flags identifying the following: Inter-affiliate security-based swaps; transactions resulting from netting or compression exercises; transactions resulting from a “forced trading session” conducted by a clearing agency; transactions reported late; transactions resulting from the default of a clearing member; and package trades. The Commission believes that these condition flags, and others that registered SDRs may adopt in the future, should provide additional information that will help to prevent market observers from receiving a distorted view of the market. The Commission believes, further, that these condition flags address the commenter's recommendation that security-based swap transaction reports identify the specific reasons why a transaction does not accurately reflect the market.

The Commission disagrees, however, with the commenter's suggestion that a Commission rule rather than the policies and procedures of a registered SDR should identify the specific characteristics or circumstances that must be reported to prevent a transaction report from presenting a distorted view of the market. The Commission continues to believe that requiring registered SDRs to develop, maintain, and require the use of condition flags, and to modify them as needed, will facilitate the development of a flexible reporting regime that is better able to respond quickly to changing conditions in the security-based swap market. This flexibility will help to assure that reported transaction information remains meaningful as the security-based swap market evolves over time.

B. Rule 901(d)—Secondary Trade Information

1. Description of Proposed and Re-Proposed Rule

Rule 901(d)(1), as proposed and as re-proposed, would have required the reporting of certain secondary trade information concerning a security-based swap. Information reported pursuant to Rule 901(d)(1) would be available to regulatory authorities only and would not be publicly disseminated. Rule 901(d)(1), as re-proposed, would have required the reporting of the following secondary trade information to a registered SDR: (1) The participant ID of each counterparty; (2) as applicable, the broker ID, desk ID, and trader ID of the direct counterparty on the reporting side; (3) the amount(s) and currenc(ies) of any up-front payment(s) and a description of the terms and contingencies of the payment streams of each direct counterparty to the other; (4) the title of any master agreement, or any other agreement governing the transaction (including the title of any document governing the satisfaction of margin obligations), incorporated by reference and the date of any such agreement; (5) the data elements necessary for a person to determine the market value of the transaction; (6) if applicable, and to the extent not provided pursuant to Rule 901(c), the name of the clearing agency to which the security-based swap will be submitted for clearing; (7) if the security-based swap is not cleared, whether the exception in Section 3C(g) of the Exchange Act [127] was invoked; (8) if the security-based swap is not cleared, a description of the settlement terms, including whether the security-based swap is cash-settled or physically settled, and the method for determining the settlement value; and (9) the venue where the security-based swap was executed.[128]

As discussed in the Regulation SBSR Proposing Release, the Commission believed that the information required to be reported by proposed Rule 901(d) would facilitate regulatory oversight and monitoring of the security-based swap market by providing comprehensive information regarding security-based swap transactions and trading activity.[129] The Commission believed, further, that this information would assist the Commission in detecting and investigating fraud and trading abuses in the security-based swap market.[130]

Re-proposed Rule 901(d)(2) specified timeframes for reporting the secondary trade information required to be reported under Rule 901(d)(1). Rule 901(d)(2), as re-proposed, would have required the reporting of secondary trade information promptly, but in no event later than: (1) 15 minutes after the time of execution of a security-based swap that is executed and confirmed electronically; (2) 30 minutes after the time of execution for a security-based swap that is confirmed electronically but not executed electronically; or (3) 24 hours after the time of execution for a security-based swap that is not executed or confirmed electronically.

2. Final Rule 901(d)

As discussed more fully below, the Commission is adopting Rules 901(d)(1) Start Printed Page 14581substantially as re-proposed, although it is making several clarifying and technical changes to address issues raised by commenters.

The Commission is not adopting the 15-minute, 30-minute, and 24-hour timeframes in re-proposed Rule 901(d)(2). Instead, final Rule 901(d) requires a reporting side to report the information required under Rule 901(d) within the timeframes specified by Rule 901(j).[131] Because re-proposed Rule 901(d)(2) is not being adopted, re-proposed Rule 901(d)(1) is renumbered as final Rule 901(d), and re-proposed Rules 901(d)(1)(i)-(ix), which would identify the categories of secondary trade information required to be reported, are renumbered as final Rules 901(d)(1)-(9).

Rule 901(d), as adopted, requires the reporting side to report the following secondary trade information: (1) The counterparty ID or execution agent ID of each counterparty, as applicable; (2) as applicable, the branch ID, broker ID, execution agent ID, trader ID, and trading desk ID of the direct counterparty on the reporting side; (3) to the extent not provided pursuant to Rule 901(c)(1), the terms of any fixed or floating rate payments, including the terms and contingencies of any such payments; (4) for a security-based swap that is not a clearing transaction, the title and date of any master agreement, collateral agreement, margin agreement, or any other agreement incorporated by reference into the security-based swap contract; (5) to the extent not provided pursuant to Rule 901(c) or other provisions of Rule 901(d), any additional elements included in the agreement between the counterparties that are necessary for a person to determine the market value of the transaction; (6) if applicable, and to the extent not provided pursuant to Rule 901(c), the name of the registered clearing agency to which the security-based swap will be submitted for clearing; (7) if the direct counterparties do not intend to submit the security-based swap to clearing, whether they have invoked the exception in Section 3C(g) of the Exchange Act; (8) to the extent not provided pursuant to other provisions of Rule 901(d), if the direct counterparties do not submit the security-based swap to clearing, a description of the settlement terms, including whether the security-based swap is cash-settled or physically settled, and the method for determining the settlement value; (9) the platform ID, if applicable; and (10) if the security-based swap arises from the allocation, termination, novation, or assignment of one or more existing security-based swaps, the transaction ID of the allocated, terminated, assigned, or novated security-based swap(s), except in the case of a clearing transaction that results from the netting or compression of other clearing transactions.

3. Discussion of Final Rule 901(d) and Response to Comments

a. Rule 901(d)(1)—Counterparty IDs

In the Regulation SBSR Proposing Release, the Commission expressed the view that a registered SDR “must have a systematic means to identify and track” all persons involved in the security-based swap transactions reported to that registered SDR.[132] The Commission intended to accomplish this, in part, through proposed Rule 901(d)(1)(i), which would have required the reporting party to report the participant ID of each counterparty to a registered SDR.[133] As proposed in Rule 900, “participant ID” would have been defined as “the UIC assigned to a participant” [134] and “participant” would have encompassed: (1) A U.S. person that is a counterparty to a security-based swap that is required to be reported to a registered SDR; or (2) a non-U.S. person that is a counterparty to a security-based swap that is (i) required to be reported to a registered SDR; and (ii) executed in the United States or through any means of interstate commerce, or cleared through a clearing agency that has its principal place of business in the United States.

Re-proposed Rule 901(d)(1)(i) would have required the reporting side to report the participant ID of each counterparty to a security-based swap. Re-proposed Rule 900(s) would have defined “participant” as “a person that is a counterparty to a security-based swap that meets the criteria of § 242.908(b).” Under re-proposed Rule 900(s), the following types of person would have met the criteria of Rule 908(b): (1) U.S. persons; (2) security-based swap dealers and major security-based swap participants; and (3) counterparties to a transaction “conducted within the United States.” [135]

The Commission received no comments on re-proposed Rule 901(d)(1)(i), but has determined to adopt, as final Rule 901(d)(1), a modified rule that will, in the Commission's estimation, better accomplish the objective of ensuring that a registered SDR can identify each counterparty to a security-based swap. As re-proposed, the reporting side would have been required to report the participant ID of its counterparty only if the counterparty met the definition of “participant,” which would have been limited by Rule 908(b). Under the re-proposed definition of “participant,” some counterparties to security-based swaps would not have become participants of the registered SDRs that receive reports of those security-based swaps under Rule 901(a). For example, if a U.S. person security-based swap dealer entered into a security-based swap with a non-U.S. person private fund in a transaction that is not conducted within the United States, the security-based swap dealer would have been a participant of the registered SDR to which the security-based swap is reported pursuant to Rule 901(a), but the private fund would not. In this circumstance, Rule 901(d)(1)(i), as re-proposed, would not have provided a mechanism for the reporting of the private fund's identity to the registered SDR; because the private fund would not have been a participant of that registered SDR it would not have received a “participant ID.”

The Commission believes that it is necessary and appropriate for a registered SDR to obtain identifying information for all counterparties to security-based swaps that are subject to Regulation SBSR. Without this information being reported to a registered SDR, the Commission's ability to oversee the security-based swap market could be impaired because the Commission might not be able to determine the identity of each counterparty to a security-based swap reported to a registered SDR pursuant to Regulation SBSR.

Final Rule 901(d)(1) addresses this concern by requiring the reporting side to report “the counterparty ID or the execution agent ID of each counterparty, as applicable.” The Commission is adopting, as Rule 900(j), the term “counterparty ID,” which means “the UIC assigned to a counterparty to a Start Printed Page 14582security-based swap.” [136] A “counterparty” is a person that is a direct or indirect counterparty of a security-based swap.[137] A “direct counterparty” is a person that is a primary obligor on a security-based swap,[138] and an “indirect counterparty” is a guarantor of a direct counterparty's performance of any obligation under a security-based swap such that the direct counterparty on the other side can exercise rights of recourse against the indirect counterparty in connection with the security-based swap; for these purposes a direct counterparty has rights of recourse against a guarantor on the other side if the direct counterparty has a conditional or unconditional legally enforceable right, in whole or in part, to receive payments from, or otherwise collect from, the guarantor in connection with the security-based swap.[139] Thus, the definition of “counterparty ID” encompasses UICs that identify all direct and indirect counterparties to a security-based swap, even if a particular counterparty is not a participant of a registered SDR.[140]

The Commission believes final Rule 901(d)(1) will accomplish the Commission's objective of obtaining identifying information for all counterparties to a security-based swap and improve regulatory oversight and surveillance of the security-based swap market. The counterparty ID will allow registered SDRs, the Commission, and other relevant authorities to track activity by a particular market participant and facilitate the aggregation and monitoring of that market participant's security-based swap positions.

The Commission also is adopting a requirement in Rule 901(d)(1)(i) for the reporting side to report the “execution agent ID” as applicable.[141] This situation could arise if the identity of a counterparty is not known at the time of execution.[142] In this circumstance, the reporting side would report the execution agent ID because it would not know the counterparty ID.

Regulation SBSR requires reporting of the UIC of each counterparty to a security-based swap.[143] One commenter stated that “each series or portfolio within each trust should be given its own LEI/UCI number to address possible confusion between series or portfolios within the same trust. Each portfolio is distinct with its own separate assets and liabilities.” [144] The Commission agrees with this commenter and notes that Rule 901(d)(1) requires the reporting of the UIC for each counterparty to a security-based swap, whether not the counterparty is a legal person.[145] If a counterparty is an entity other than a legal person, such as a series or portfolio within a trust, or an account, Rule 901(d)(1) requires the reporting of the UIC that identifies that counterparty.

Finally, the Commission notes that although it is not adopting a definition of “participant ID,” the concept of a “participant” is still utilized in Regulation SBSR. Rule 900(u), as adopted, defines “participant,” with respect to a registered SDR, as “a counterparty, that meets the criteria of § 242.908(b), of a security-based swap that is reported to that registered security-based swap data repository to satisfy an obligation under § 242.901(a).” [146] The adopted definition makes clear that a person becomes a participant of a particular registered SDR only if the person meets the criteria of Rule 908(b) and is a counterparty to a security-based swap that is reported to that registered SDR on a mandatory basis. A counterparty would not become a participant of all registered SDRs as a result of being a counterparty to a security-based swap that is subject to Regulation SBSR and reported to a particular registered SDR as required by Rule 901(a). The adopted definition also clarifies that a counterparty would not become a participant of a registered SDR as a result of any non-mandatory report [147] submitted to that registered SDR.[148] Similarly, a counterparty that meets the criteria of Rule 908(b) would not become a participant of any registered SDR if the security-based swap is reported pursuant to a substituted compliance determination under Rule 908(c), because such a security-based swap would not be reported to a registered SDR pursuant to Rule 901(a).

The final definition of “participant” is less comprehensive than the re-proposed definition because Rule 908(b), as adopted, is narrower than Rule 908(b), as re-proposed. As discussed in Section XV(D), infra, final Rule 908(b) includes U.S. persons, registered security-based swap dealers, and registered major security-based Start Printed Page 14583swap participants. The Commission is not at this time taking action on the prong of re-proposed Rule 908(b) that would have caused a person to become a participant solely by being a counterparty to a security-based swap that is a transaction conducted within the United States. As a result, fewer non-U.S. persons are likely to “meet the criteria of Rule 908(b),” as adopted, because a non-U.S. person that is a counterparty of a security-based swap would meet the criteria of final Rule 908(b) only if that counterparty is a registered security-based swap dealer or a registered major security-based swap participant. Thus, only a U.S. person, a registered security-based swap dealer, or a registered major security-based swap participant could be a “participant” under Regulation SBSR.

b. Rule 901(d)(2)—Additional UICs

Rule 901(d)(1)(ii), as re-proposed, would have required reporting of, as applicable, the broker ID, desk ID, and trader ID of the direct counterparty on the reporting side. The Commission preliminarily believed that the reporting of this information would help to promote effective oversight, enforcement, and surveillance of the security-based swap market by the Commission and other relevant authorities.[149] The Commission noted, for example, that this information would allow regulators to track activity by a particular participant, a particular desk, or a particular trader. In addition, relevant authorities would have greater ability to observe patterns and connections in trading activity, or examine whether a trader had engaged in questionable activity across different security-based swap products. Such identifiers also would facilitate aggregation and monitoring of the positions of security-based swap counterparties, which could be of significant benefit for systemic risk management.[150]

Adopted Rule 901(d)(2) modifies re-proposed Rule 901(d)(1)(ii) in certain respects. First, final Rule 901(d)(2) replaces the defined term “desk ID” with the defined term “trading desk ID.” Second, final Rule 901(d)(2) now includes a requirement to report the branch ID and the execution agent ID of the direct counterparty on the reporting side, in addition to the broker ID, trading desk ID, and trader ID. In conjunction with this requirement, final Rule 900 includes the new defined terms “branch ID” and “execution agent ID.” Third, final Rule 900 includes a revised definition of “trader ID.” Thus, final Rule 901(d)(2) requires reporting of, “[a]s applicable, the branch ID, broker ID, execution agent ID, trader ID, and trading desk ID of the direct counterparty on the reporting side.” [151]

i. Branch ID and Execution Agent ID

Rule 901(d)(2), as adopted, requires the reporting of, as applicable, the branch ID and execution agent ID of the direct counterpart on the reporting side, in addition to the broker ID, trader ID, and trading desk ID of the direct counterparty on the reporting side. The “branch ID” is the “UIC assigned to a branch or other unincorporated office of a participant.” [152] The Commission did not include a requirement to report the branch ID in Rule 901(d), as proposed or as re-proposed. However, the Commission now believes that it is appropriate to include in Regulation SBSR a new concept of the branch ID and require reporting of the branch ID, when a transaction is conducted through a branch, as part of Rule 901(d)(2), as adopted. Reporting of the branch ID, where applicable, will help identify the appropriate sub-unit within a large organization that executed a security-based swap (if a transaction were in fact conducted through that sub-unit). This information also will facilitate the aggregation and monitoring of security-based swap transactions by branch, at the level of the registered SDR and potentially within the firm itself.

Final Rule 901(d)(2) also includes another UIC, the “execution agent ID,” that was not included in the proposal or re-proposal. Rule 900(m), as adopted, provides that the execution agent ID is the “UIC assigned to any person other than a broker or trader that facilitates the execution of a security-based swap on behalf of a direct counterparty.” The Commission initially proposed to require reporting of the broker ID in order to obtain a record of an agent that facilitates a transaction, if there is such an agent. The Commission now recognizes, however, that entities other than registered brokers could act as agents in a security-based swap transaction. For example, an asset manager could be acting as an agent on behalf of a fund counterparty but likely would not be a broker-dealer. The definition of “execution agent ID” is designed to encompass the entities in addition to brokers that may act as agents for security-based swap counterparties. The broker ID,[153] which also must be reported under final Rule 901(d)(2), will identify a registered broker, if any, that intermediates a security-based swap transaction between two direct counterparties and itself is not a counterparty to the transaction.

The Commission believes that obtaining information about a broker or execution agent, if any, involved in the transaction will provide regulators with a more complete understanding of the transaction and could provide useful information for market surveillance purposes. The Commission notes that some security-based swap transactions may involve multiple agents. For example, an asset manager could use a broker to facilitate the execution of a security-based swap on behalf of one or more of the funds that it advises. In that case, final Rule 901(d) would require reporting of the counterparty ID of the direct counterparty (the fund), the execution agent ID (for the asset manager), and the broker ID (of the broker that intermediated the transaction).

ii. Revised Defined Terms in Rule 901(d)(2)

Rule 901(d)(1)(ii), as re-proposed, would have required the reporting of, among other things, the desk ID of the direct counterparty on the reporting side. Rule 900(i), as re-proposed, would have defined “desk ID” as the UIC assigned to the trading desk of a participant or of a broker of a participant. Rule 900, as re-proposed, did not include a definition of “desk.” Final Rule 901(d)(2) requires the reporting of the “trading desk ID,” rather than the “desk ID.” Accordingly, the defined term “desk ID” is being replaced in Rule 900 with the defined term “trading desk ID,” which Rule 900(ll) defines as “the UIC assigned to the trading desk of a participant.” Unlike re-proposed Rule 900, which provided no definition of the term “desk,” final Rule 900(kk) provides a definition of the term “trading desk.” Specifically, final Rule 900(kk) defines “trading desk” to mean, “with respect to a counterparty, the smallest discrete unit of organization of the participant Start Printed Page 14584that purchases or sells financial instruments for the account of the participant or an affiliate thereof.” The Commission believes that adding a definition of “trading desk” will help to clarify the rule by describing the type of structure within an enterprise that must receive a trading desk ID. The “trading desk ID” concept is designed to identify, within a large organization, the smallest discrete unit that initiated a security-based swap transaction. Requiring the reporting of the trading desk ID will assist regulators in monitoring the activities and exposures of market participants. The trading desk ID could, among other things, facilitate investigations of suspected manipulative or abusive trading practices.[154]

Final Rule 901(d)(2) also requires reporting of, if applicable, the trader ID of the direct counterparty on the reporting side. Re-proposed Rule 900(gg) would have defined “trader ID” as “the UIC assigned to a natural person who executes security-based swaps.” This definition would encompass a direct counterparty that executed a security-based swap, as well as a trader acting as agent that executes a security-based swap on behalf of a direct counterparty. The Commission did not intend for the definition of “trader ID” to include both direct counterparties (whose counterparty IDs must be provided pursuant to Rule 901(d)(1)) and traders acting in an agency capacity that execute security-based swaps on behalf of a direct counterparty. To narrow the definition of “trader ID” so that it includes only traders that execute security-based swaps on behalf of direct counterparties, final Rule 900(jj) defines “trader ID” as “the UIC assigned to a natural person who executes one or more security-based swaps on behalf of a direct counterparty.” The direct counterparty would be the person, account, or fund that is the direct counterparty to the security-based swap that employs the trader.

iii. Response to Comments

One commenter supported the proposed requirement for reporting broker ID, desk ID, and trader ID, stating that these UICs would “give regulators a capability to aggregate position and trade data in multiple ways including by individual trader to spot concentration risk and insider trading.” [155] A second commenter argued that desk structures change relatively frequently and personnel often rotate or transfer to other firms; therefore, the effort to maintain trader ID and desk ID information in a registered SDR could exceed its usefulness.[156] The commenter also indicated that information regarding the desk ID and trader ID would be available from a firm's audit trail.[157]

The Commission questions whether consistent and robust information about a firm's desk and trader activity is available from firms' audit trails. Even if it were, the Commission believes that reporting of the trader ID and the trading desk ID—as well as the branch ID, broker ID, and execution agent ID—will help to assure that information concerning the persons involved in the intermediation and execution of a security-based swap is readily available to the Commission and other relevant authorities. This information could assist in monitoring and overseeing the security-based swap market and facilitate investigations of suspected manipulative or abusive trading practices.

Two other commenters raised issues with requiring reporting of broker, trader, and trading desk IDs.[158] One of these commenters believed that reporting these UICs would require “great cost and effort” from firms, including the costs associated with establishing and maintaining UICs in the absence of a global standard.[159] The commenter also noted that not all of these identifiers are required to be reported in other jurisdictions.[160] In a joint comment letter with another trade association, this commenter also stated that, because these UICs are not currently reported by any participants in the OTC derivatives markets, “[t]he industry will need to develop standards and appropriate methodology to effectively report this information.” [161] This comment expressed concern that the proposed requirement “will create significant `noise' as a result of booking restructuring events (due to either technical or desk reorganization considerations). We therefore recommend that such information be either excluded, or that participants report the Desk ID and Trader ID associated with the actual trade or lifecycle events, but not those resulting from internal reorganization events.” [162]

The Commission recognizes that, currently, UICs for branches, execution agents, trading desks, and individual traders are generally not in use. While the Commission agrees with the commenters that there could be a certain degree of cost and effort associated with establishing and maintaining UICs, the Commission believes that such costs have already been taken into account when determining the costs of Regulation SBSR.[163] The costs of developing such UICs are included in the costs for Rule 901 (detailing the data elements that must be reported) and Rule 907 (detailing the requirement that SDRs develop policies and procedures for the reporting of the required data elements).

The Commission confirms that these UICs must be reported pursuant to Rule 901(d)(2) only in connection with the original transaction.[164]

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c. Rule 901(d)(3)—Payment Stream Information

Rule 901(d)(1)(iii), as proposed and re-proposed, would have required the reporting side to report the amount(s) and currenc(ies) of any up-front payment(s) and a description of the terms and contingencies of the payment streams of each direct counterparty to the other. The Commission stated that this requirement would include, for a credit default swap, an indication of the counterparty purchasing protection, the counterparty selling protection, and the terms and contingencies of their payments to each other; and, for other security-based swaps, an indication of which counterparty is long and which is short.[165] The Commission noted that this information could be useful to regulators in investigating suspicious trading activity.[166]

One commenter stated the view that proposed Rule 901(d)(1)(iii) was duplicative of proposed Rule 901(d)(1)(v), which would require reporting of the data elements necessary to determine the market value of a transaction.[167] The commenter stated, further, that proposed Rule 901(d)(1)(iii) was unclear about the required form of the description of the terms and contingencies of the payment streams, and requested further clarification of this proposed requirement.[168]

The Commission agrees with the commenter's concerns regarding the need to clarify the information required to be reported under these provisions of Rule 901. Accordingly, the Commission is revising adopted Rule 901(d)(3) to require the reporting, to the extent not provided pursuant to Rule 901(c)(1), of the terms of any fixed or floating rate payments, or otherwise customized or non-standardized payment streams, including the frequency and contingencies of any such payments.[169] As discussed above, adopted Rule 901(c)(1)(iv) requires the reporting side to report the terms of any standardized fixed or floating rate payments, and the frequency of any such payments.[170] To the extent that a security-based swap includes fixed or floating rate payments that do not occur on a regular schedule or are otherwise customized or non-standardized, final Rule 901(d)(3) requires the reporting of the terms of those payments, including the frequency and contingencies of the payments. The Commission believes that the changes to final Rule 901(d)(3) make clear that Rule 901(d)(3) requires reporting of customized or non-standardized payment streams, in contrast to the standardized payment streams required to be reported pursuant to Rule 901(c)(1)(iv). The terms required to be reported could include, for example, the frequency of any resets of the interest rates of the payment streams. The terms also could include, for a credit default swap, an indication of the counterparty purchasing protection and the counterparty selling protection, and, for other security-based swaps, an indication of which counterparty is long and which counterparty is short. The Commission believes that information concerning the non-standard payment streams of a security-based swap could be useful to the Commission or other relevant authorities in assessing the nature and extent of counterparty obligations and risk exposures. The Commission believes that the changes made to Rule 901(d)(3) will help clarify the information required to be reported under the rule and will eliminate any redundancy between the information required to be reported under Rules 901(c)(1)(iv) and 901(d)(3).

In addition, as discussed more fully below, the Commission is revising re-proposed Rule 901(d)(1)(v), which is renumbered as final Rule 901(d)(5), to indicate that Rule 901(d)(5) requires the reporting of additional data elements necessary to determine the market value of a transaction only to the extent that the information has not been reported pursuant to Rule 901(c) or other provisions of Rule 901(d). The Commission believes that these changes address the concern that Rule 901(d)(i)(iii) was duplicative of Rule 901(d)(1)(v).

d. Rule 901(d)(4)—Titles and Dates of Agreements

Rule 901(d)(1)(iv), as proposed, would have required reporting of the title of any master agreement, or any other agreement governing the transaction (including the title of any document governing the satisfaction of margin obligations), incorporated by reference and the date of any such agreement. Rule 901(d)(1)(v), as proposed, would have required reporting of the data elements necessary for a person to determine the market value of the transaction. The Commission noted that proposed Rule 901(d)(1)(v) would require, for a security-based swap that is not cleared, information related to the provision of collateral, such as the title and date of the relevant collateral agreement. The Commission preliminarily believed that these requirements, together with other information required to be reported under Rule 901(d), would facilitate regulatory oversight of counterparties by providing information concerning counterparty obligations.[171] The Commission re-proposed Rules 901(d)(1)(iv) and 901(d)(1)(v) without revision in the Cross-Border Proposing Release.

In proposing Rules 901(d)(1)(iv) and 901(d)(1)(v), the Commission balanced the burdens associated with reporting entire agreements against the benefits of having information about these agreements, and proposed to require reporting only of the title and date of such master agreements and any other agreement governing the transaction. Similarly, the Commission indicated that proposed Rule 901(d)(1)(v) would require the reporting of the title and date of any collateral agreements governing the transaction.[172]

One commenter disagreed with the Commission's proposed approach. This commenter expressed the view that Regulation SBSR should be more explicit in requiring reports of information concerning collateral and margin for use by regulators because this information would be important for risk assessment and other purposes.[173]

The Commission agrees that it is important for regulatory authorities to have access to information concerning the collateral and margin associated with security-based swap transactions. The Commission also is mindful, Start Printed Page 14586however, that requiring the reporting of detailed information concerning the master agreement and other documents governing security-based swaps could impose significant burdens on market participants. In addition, the Commission notes that one commenter on proposed Regulation SBSR stated that it would not be possible, in all cases, to identify the collateral associated with a particular security-based swap transaction because collateral is calculated, managed, and processed at the portfolio level rather than at the level of individual transactions.[174]

In light of these considerations, the Commission believes that, for security-based swaps that are not clearing transactions, requiring reporting of the title and date of any master agreement, collateral agreement, margin agreement, or any other agreement incorporated by reference into the security-based swap contract—but not the agreements themselves or detailed information concerning the agreements—will facilitate regulatory oversight of the security-based swap market by providing regulators with a more complete understanding of a security-based swap counterparty's obligations while not imposing significant burdens on market participants. The Commission anticipates that, if a situation arose where the Commission or another relevant authority needed to consult information about a transaction contained in one of the related agreements, the Commission could request the agreement from one of the security-based swap counterparties. Knowing the title and date of the agreement will assist relevant authorities in identifying the agreement and thereby expedite the process of obtaining the necessary information.

One commenter argued that the “level of change” necessary to incorporate the titles and dates of master agreements into individual trade messages was excessive and recommended that the trade level reference continue to follow the current process of referencing the lowest level governing document, which would permit the identification of all of the other relevant documents.[175] Another commenter questioned the value of requiring reporting of the title and date of party level agreements.[176] This commenter stated that, because other jurisdictions do not require reporting of the “title and date of a Credit Support Agreement or other similar document (“CSA”) governing the collateral arrangement between the parties . . . global trade repositories do not currently have fields to support separate reporting of data pertaining to the CSA from those which define the master agreement. Equally challenging is firms' ability to report data pertaining to the CSA as the terms of these agreements are not readily reportable in electronic format nor could this be easily or accurately achieved.” [177] Noting that other global regulators have limited their trade reporting requirements to the relevant date and type of the master agreement, the commenter believed that the information required to be reported should be limited to the identification of party level master agreements that govern all of the derivatives transactions between the parties, and should not include master confirmations or other documentation that is used to facilitate confirmation of the security-based swap.[178]

The Commission understands that reporting the titles and dates of agreements for individual security-based swap transactions may require some modification of current practices. However, the Commission believes that it is important for regulators to know such titles and dates so that the Commission and other relevant authorities would know where to obtain further information about the obligations and exposures of security-based swap counterparties, as necessary. The Commission believes that requiring reporting of the titles and dates of master agreements and other agreements governing a transaction—but not the agreements themselves or detailed information concerning the agreements—would provide regulators with access to necessary information without creating an unduly burdensome reporting obligation. Therefore, the Commission is adopting Rule 901(d)(1)(iv) substantially as proposed and re-proposed, while renumbering it final Rule 901(d)(4). With respect to the commenter's concern regarding the difficulty of reporting the terms of the documentation governing a security-based swap, the Commission emphasizes that final Rule 901(d)(4) requires reporting only of the titles and dates of the documents specified in Rule 901(d)(4), but not the terms of these agreements.

The commenter also requested additional clarity regarding the proposed requirement generally.[179] As discussed above, Rule 901(d)(1)(iv), as proposed and re-proposed, would have required reporting of “the title of any master agreement, or any other agreement governing the transaction (including the title of any document governing the satisfaction of margin obligations), incorporated by reference and the date of any such agreement.” The proposed rule also would have required reporting of the title and date of any collateral agreements governing the transaction.[180] Although the rule, as proposed and re-proposed, would have required reporting of the title and date of any master agreement, margin agreement, collateral agreement, and any other document governing the transaction that is incorporated by reference, the Commission agrees that it would be useful to state more precisely the information required to be reported and to clarify the scope of the rule. Rule 901(d)(4), as adopted, requires reporting of, “[f]or a security-based swap that is not a clearing transaction, the title and date of any master agreement, collateral agreement, margin agreement, or any other agreement incorporated by reference into the security-based swap contract.” The new language makes clear that Rule 901(d)(4) applies only to security-based swaps that are not clearing transactions (i.e., security-based swaps that do not have a registered clearing agency as a direct counterparty). Any such agreements relating to a clearing transaction would exist by operation of the rules of the registered clearing agency, and therefore do not need to be reported pursuant to Regulation SBSR because the Commission could obtain information from the registered clearing agency as necessary.

e. Rule 901(d)(5)—Other Data Elements

Rule 901(d)(1)(v), as re-proposed, would have required reporting of the data elements necessary for a person to determine the market value of a transaction. The Commission is adopting Rule 901(d)(1)(v) substantially Start Printed Page 14587as re-proposed, but renumbering it as Rule 901(d)(5) and making certain technical and clarifying changes in response to comments.

As discussed above, re-proposed Rule 901(d)(1)(iii) would have required reporting of the amount(s) and currenc(ies) of any up-front payments and the terms and contingencies of the payment streams of each direct counterparty to the other. One commenter believed that re-proposed Rule 901(d)(1)(iii) was duplicative of re-proposed Rule 901(d)(1)(v),[181] and asked the Commission to provide additional clarity on what re-proposed Rule 901(d)(1)(v) requires.[182] To address these comments, the Commission is revising adopted Rule 901(d)(5) to require the reporting, to the extent not required pursuant to Rule 901(c) or other provisions of Rule 901(d), of any additional data elements included in the agreement between the counterparties that are necessary for a person to determine the market value of the transaction.

Another commenter expressed concern that the requirements of re-proposed Rule 901(d)(1)(v) were vague, “leaving reporting parties and trade repositories with the task of establishing the reportable data with potentially different result.” [183] This commenter recommended that Commission revise the rule to clarify the requirement to report “(i) the mark-to-market value and currency code and (ii) the date and time of the valuation in Coordinated Universal Time . . .” [184] Further, because information necessary to determine the market value of a transaction “is determined as part of end of day processes,” the commenter requested that the timeframe for reporting data pertaining to market value be based on the end of the day on which the relevant data was determined.[185]

In response to these concerns, the Commission emphasizes that neither Regulation SBSR, as proposed and re-proposed, nor Regulation SBSR, as adopted, requires the reporting of the market value of a security-based swap (although the negotiated price of the actual transaction is required to be reported), either on a one-time or ongoing basis.[186] As noted above, final Rule 901(d)(5) requires reporting, to the extent not required pursuant to Rule 901(c) or other provisions of Rule 901(d), of any additional data elements included in the agreement between the counterparties that are necessary to determine the market value of the transaction. This refers to all of the contractual terms and conditions of a security-based swap that a party would need to perform its own calculation of the market value of the security-based swap using its own market data. Although the reporting side must include, as part of the initial transaction report, the information necessary to determine the market value of the transaction, Regulation SBSR does not require the reporting side to take the additional step of calculating and reporting the market value of the transaction, nor does it require the reporting side to provide any market data that would be needed to calculate the market value of the transaction.

Rule 901(d)(5) is designed to help to ensure that all of the material terms of the agreement between the counterparties that is necessary to determine the market value of a security-based swap are available to the Commission and other relevant authorities.[187] The Commission continues to believe that this requirement will facilitate regulatory oversight by giving relevant authorities the information necessary to value an entity's security-based swap positions and calculate the exposure resulting from those positions. However, the final language of Rule 901(d)(5) is designed to eliminate any overlap with other provisions of Rule 901(c) or 901(d). For example, if a security-based swap has a product ID, the Commission presumes that all information necessary to identify the security-based swap and determine the market value of the transaction could be derived from the product ID (or the identification information behind that particular product ID). Therefore, it would not be necessary to report any additional information pursuant to Rule 901(d)(5) for a security-based swap for which a product ID is reported.

In addition, the Commission is further clarifying the rule by making a technical change to indicate that final Rule 901(d)(5) requires the reporting only of data elements “included in the agreement between the counterparties.” The Commission believes that the rule as proposed and re-proposed—which did not include this phrase—could have been interpreted to require the reporting of information external to the agreement between the counterparties that could have helped determine the market value of the security-based swap (e.g., the levels of supply and demand in the market for the security-based swap). The Commission intended, however, to require reporting only of information included in the agreement between the counterparties, not of general market information. Accordingly, final Rule 901(d)(5) requires the reporting only of data elements “included in the agreement between the counterparties” that are necessary for a person to determine the market value of the transaction.

Finally, one commenter believed that proposed Rule 901(d)(1)(v) should require reporting only of the full terms of a security-based swap as laid out in the trade confirmation.[188] Although the Commission agrees that the full terms of a trade confirmation could, in some cases, provide the data elements included in the agreement between the counterparties that are necessary to determine the market value of a transaction, the Commission notes that the information required to be reported pursuant Rule 901(d)(5) would not necessarily be limited to information included in the trade confirmation. Not all market participants observe the same conventions for confirming their trades. The Commission understands that confirmations for some types of trades are significantly more standardized than others. Some trades may have critical terms included in other documentation, such as master confirmation agreements or credit support annexes. Moreover, confirmation practices in the future may differ from current confirmation practices. The Commission believes, therefore, that restricting information reported in accordance with Rule 901(d)(5) to the information included in the confirmation would not provide the Commission and other relevant authorities with sufficient information regarding the market value of a security-based swap.

f. Rule 901(d)(6)—Submission to Clearing

Rule 901(d)(1)(vi), as re-proposed, would have required reporting of the following data element: “If the security-based swap will be cleared, the name of the clearing agency.” This information would allow the Commission to verify, if necessary, that a security-based swap was cleared, and to identify the clearing agency that cleared the transaction. The Start Printed Page 14588Commission received no comments on this provision and is adopting it substantially as re-proposed, with minor clarifying changes and renumbered as Rule 901(d)(6). Rule 901(d)(6), as adopted, requires reporting of the following: “If applicable, and to the extent not provided pursuant to paragraph (c) of this section, the name of the clearing agency to which the security-based swap will be submitted for clearing.”

For some security-based swaps, the name of the clearing agency that clears the security-based swap could be inherent in the product ID. Rule 901(d)(6), as adopted, clarifies that the name of the clearing agency to which the security-based swap will be submitted for clearing need not be reported if that information is inherent in the product ID. In addition, the new language regarding whether the security-based swap will be submitted for clearing reflects the possibility that a clearing agency could reject the security-based swap for clearing after it has been submitted. The Commission believes that it would be useful to know the name of the clearing agency to which the transaction is submitted, even if the clearing agency rejects the transaction.

g. Rule 901(d)(7)—Indication of Use of End-User Exception

Rule 901(d)(1)(vii), as re-proposed, would have required reporting of whether a party to the transaction invoked the so-called “end user exception” from clearing, which is contemplated in Section 3C(g) of the Exchange Act.[189] Section 3C(g)(6) of the Exchange Act [190] provides for the Commission to request information from persons that invoke the exception. The Commission preliminarily believed that requiring reporting of whether the exception was invoked in the case of a particular security-based swap would assist the Commission in monitoring use of the exception.[191]

One commenter argued that the Commission should not use the trade reporting mechanism “to police the end-user exception.” [192] The commenter expressed concern with an end user having to certify eligibility with each transaction and stated that “it is illogical that filings by swap dealers should determine the eligibility of the end user.” [193] The Commission acknowledges the commenter's concerns but believes that they are misplaced. Re-proposed Rule 901(d)(1)(vii) would not require reporting of any information as to the end user's eligibility to invoke the exception for a specific transaction; instead, it would require reporting only of the fact of the exception being invoked. The Commission could then obtain information from a registered SDR regarding instances of the exception being invoked and could determine, as necessary, whether to further evaluate whether the exception had been invoked properly. The Commission does not believe that it is necessary or appropriate to require information about the end user's eligibility to invoke the exception to be reported under Rule 901(d). Therefore, the Commission has determined to adopt Rule 901(d)(1)(vii) as re-proposed, but is renumbering it as Rule 901(d)(7).

h. Rule 901(d)(8)—Description of Settlement Terms

Rule 901(d)(1)(viii), as re-proposed, would have required, for a security-based swap that is not cleared, a description of the settlement terms, including whether the security-based swap is cash-settled or physically settled, and the method for determining the settlement value. In the Regulation SBSR Proposing Release, the Commission stated its preliminary belief that this information would assist relevant authorities in monitoring the exposures and obligations of security-based swap market participants.[194] One commenter expressed the view that the settlement terms could be derived from other data fields and thus recommended deletion of this data element, or in the alternative, requested additional clarity on what would be required pursuant to this provision.[195]

Re-proposed Rule 901(d)(1)(viii) is being adopted substantially as re-proposed but renumbered as final Rule 901(d)(8) and now includes certain revisions that respond to the commenter and clarify the operation of the rule. Rule 901(d)(8), as adopted, requires: “[t]o the extent not provide pursuant to other provisions of this paragraph (d), if the direct counterparties do not submit the security-based swap to clearing, a description of the settlement terms, including whether the security-based swap is cash-settled or physically settled, and the method for determining the settlement value.” The Commission believes that the final rule makes clear that there is no requirement to report information concerning the settlement terms of an uncleared security-based swap if the information was reported pursuant to another provision of Rule 901(d). Similarly, there is no requirement to report the settlement terms pursuant to Rule 901(d)(8) if the settlement terms are inherent in the product ID. Final Rule 901(d)(8) is designed to facilitate regulatory oversight by providing the Commission and other relevant authorities with information necessary to understand the exposures of security-based swap counterparties.

i. Rule 901(d)(9)—Platform ID

Rule 901(d)(1)(ix), as re-proposed, would have required reporting of the venue where a security-based swap was executed. This would include, if applicable, an indication that a security-based swap was executed bilaterally in the OTC market.[196] This information could be useful for a variety of purposes, including studying the development of security-based swap execution facilities (“SB SEFs”) or conducting more detailed surveillance of particular security-based swap transactions. In the latter case, the Commission or another relevant authority would find it helpful to know the execution venue, from which it could obtain additional information as appropriate.

One commenter, in discussing the entity that should assign transaction IDs, suggested that linking a trade to a particular platform potentially could result in the unintentional disclosure of the identities of the counterparties.[197] The Commission notes that information concerning the venue where a security-based swap was executed, like all secondary trade information reported under Rule 901(d), is not required to be, and thus may not be, publicly disseminated. Because the platform ID may not be publicly disseminated, there is no potential for it to unintentionally Start Printed Page 14589identify the counterparties to the transaction.

The Commission continues to believe that information identifying the venue where a security-based swap was executed, whether on a trading platform or in the OTC market, is necessary information for relevant authorities to conduct surveillance in the security-based swap market and understand developments in the security-based swap market generally. Therefore, the Commission is adopting the rule substantially as re-proposed and renumbering it as final Rule 901(d)(9).

One commenter asked the Commission to clarify that re-proposed Rule 901(d)(1)(ix) would require reporting only of execution platforms required to register with the Commission or the CFTC.[198] The Commission believes that final Rule 901(d)(9) largely accomplishes this result. Specifically, the Commission has revised Rule 901(d)(9) to require reporting, if applicable, of the “platform ID,” rather than the “execution venue” more broadly. To implement this requirement, the Commission also is adopting a definition of “platform.” Final Rule 900(v) defines a “platform” as “a national securities exchange or a security-based swap execution facility that is registered or exempt from registration.” [199] Rule 900(w) defines “platform ID” as the UIC assigned to the platform on which a security-based swap is executed. The platform ID, like other UICs, must be assigned as provided in Rule 903. The Commission believes that this approach makes clear that other entities that may be involved in executing transactions, such as inter-dealer brokers, are not considered platforms for purposes of this reporting requirement.[200]

j. Rule 901(d)(10)—Transaction ID of Any Related Transaction

Regulation SBSR, as proposed and re-proposed, was designed to obtain complete and accurate reporting of information regarding a security-based swap from its execution through its termination or expiration. In the Regulation SBSR Proposing Release, the Commission noted that maintaining an accurate record of the terms of a security-based swap would require reporting of life cycle event information to a registered SDR.[201] The term “life cycle event” includes terminations, novations, and assignments of existing security-based swaps.[202] As discussed in greater detail in Sections V(C)(5) and VIII(A), infra, a new security-based swap may arise following the allocation, termination, novation, or assignment of an existing security-based swap, and that the reporting side for the new security-based swap must report the transaction to a registered SDR.[203] The Commission believes that it should be able to link any new security-based swaps that arise from the termination, novation, or assignment of an existing security-based swap to the original transaction. For example, when a single security-based swap is executed as a bunched order and then allocated among multiple counterparties, the Commission and other relevant authorities should be able to link the allocations to the executed bunched order.[204] The ability to link a security-based swap that arises from an allocation, termination, novation, or assignment back to the original security-based swap(s) will help to assure that the Commission and relevant authorities have an accurate and current representation of counterparty exposures.

To facilitate the Commission's ability to map a resulting security-based swap back to the original transaction—particularly if the original transaction and the resulting transaction(s) are reported to different registered SDRs—the Commission is adopting Rule 901(d)(10), which requires the reporting side for a security-based swap that arises from an allocation, termination, novation, or assignment of one or more existing security-based swaps, to report “the transaction ID of the allocated, terminated, assigned, or novated security-based swap(s), except in the case of a clearing transaction that results from the netting or compression of other clearing transactions.” [205] The Commission does not believe that it is necessary to require reporting of the transaction ID for clearing transactions that result from other clearing transactions because clearing transactions occur solely within the registered clearing agency and are used by the registered clearing agency to manage the positions of clearing members and, possibly their clients. Thus, it would not be necessary for regulatory authorities to have the ability to link together clearing transactions that result from other clearing transactions.

k. Information That Is Not Required by Rule 901(d)

One commenter, responding to a question in the Regulation SBSR Proposing Release,[206] stated that the Commission should not require reporting of the purpose of a security-based swap because it could reveal proprietary information, and because the parties to a security-based swap often will have several reasons for executing the transaction.[207] The Commission agrees that counterparties could have multiple reasons for entering into a security-based swap, and that requiring reporting of a particular reason could be impractical. Furthermore, different sides to the same transactions would likely have different reasons for entering into it. The Start Printed Page 14590Commission notes, further, that it did not propose to require reporting of the purpose of the security-based swap and Rule 901, as adopted, does not include a requirement to report this information.

Two commenters recommended that the Commission require reporting of valuation data on an ongoing basis.[208] The Commission emphasizes that it did not propose to require the reporting of valuation data in either the Regulation SBSR Proposing Release or the Cross-Border Proposing Release, and that it is not adopting such a requirement at this time.[209] However, the Commission will continue to assess the reporting and public dissemination regime under Regulation SBSR and could determine to propose additional requirements, such as the reporting of valuations, as necessary or appropriate. In addition, the Commission notes that the data elements required under Rules 901(c) and 901(d) are designed to allow the public, the Commission, other relevant authorities, or a data analytics firm engaged by a relevant authority, to calculate the market value of a security-based swap at the time of execution of the trade.[210]

C. Reporting of Historical Security-Based Swaps

1. Statutory Basis and Proposed Rule

Section 3C(e)(1) of the Exchange Act  [211] requires the Commission to adopt rules providing for the reporting to a registered SDR or to the Commission of security-based swaps entered into before the date of enactment of Section 3C (i.e., July 21, 2010). By its terms, this provision is not limited to security-based swaps that were still open as of the date of enactment of the Dodd-Frank Act. In the Regulation SBSR Proposing Release, the Commission took the preliminary view that an attempt to collect many years' worth of transaction-level security-based swap data (including data on terminated or expired security-based swaps) would not enhance the goal of price discovery, nor would it be particularly useful to relevant authorities or market participants in implementing a forward-looking security-based swap reporting and dissemination regime.[212] The Commission also took the preliminary view that collecting, reporting, and processing all such data would involve substantial costs to market participants with little potential benefit. Accordingly, the Commission proposed to limit the reporting of security-based swaps entered into prior to the date of enactment to only those security-based swaps that had not expired as of the date of enactment of the Dodd-Frank Act (“pre-enactment security-based swaps”).

In addition, Section 3C(e)(2) of the Exchange Act [213] requires the Commission to adopt rules that provide for the reporting of security-based swaps entered into on or after the date of enactment of Section 3C (“transitional security-based swaps”).[214]

The Commission proposed Rule 901(i) to implement both of these statutory requirements. Rule 901(i), as proposed, would have required a reporting party to report all of the information required by Rules 901(c) and 901(d) for any pre-enactment security-based swap or transitional security-based swap (collectively, “historical security-based swaps”), to the extent such information was available. Thus, Rule 901(i), as proposed and re-proposed, would have required the reporting only of security-based swaps that were open on or executed after the date of enactment (July 21, 2010). The Commission further proposed that historical security-based swaps would not be subject to public dissemination. In the Cross-Border Proposing Release, the Commission re-proposed Rule 901(i) in its entirety with only one technical revision, to replace the term “reporting party” with “reporting side.”

2. Final Rule and Discussion of Comments Received

As adopted, Rule 901(i) states: “With respect to any pre-enactment security-based swap or transitional security-based swap in a particular asset class, and to the extent that information about such transaction is available, the reporting side shall report all of the information required by [Rules 901(c) and 901(d)] to a registered security-based swap data repository that accepts security-based swaps in that asset class and indicate whether the security-based swap was open as of the date of such report.” In adopting Rule 901(i), the Commission is making minor changes to the rule as re-proposed in the Cross-Border Proposing Release. The Commission has added the clause “in a particular asset class” following “transitional security-based swap” and the clause “to a registered security-based swap data repository that accepts security-based swaps in that asset class.” The security-based swap market is segregated into different asset classes, and an SDR might choose to collect and maintain data for only a single asset class. These new clauses clarify that a reporting side is not obligated to report historical security-based swaps in a particular asset class to a registered SDR that does not accept security-based swaps in that asset class. A reporting side's duty to report a historical security-based swap in a particular asset class arises only when there exists a registered SDR that accepts security-based swaps in that asset class.

The Commission also is adopting the definition of “pre-enactment security-based swap” as proposed and re-proposed.[215] Further, the Commission is adopting the definition of “transitional security-based swap” substantially as proposed and re-proposed, with one clarifying change and a technical revision to eliminate the obsolete term “effective reporting date.” [216] Rule Start Printed Page 14591900(nn), as adopted, defines “transitional security-based swap” to mean “a security-based swap executed on or after July 21, 2010, and before the first date on which trade-by-trade reporting of security-based swaps in that asset class to a registered security-based swap data repository is required pursuant to §§ 242.900 through 242.909.” Thus, only those security-based swaps that were open as of the date of enactment (July 21, 2010) or opened thereafter must be reported. The Commission continues to believe that the costs of reporting security-based swaps that terminated or expired before July 21, 2010, would not justify any potential benefits, particularly given the difficulty of assembling records concerning these transactions after many years. One commenter specifically agreed with the Commission's proposal to limit reporting of security-based swaps entered into prior to the date of enactment only to those that had not expired as of that date.[217]

However, this commenter also expressed concern that a blanket requirement to report all pre-enactment security-based swaps “risks double-counting and presenting a distorted view of certain markets.” [218] In particular, the commenter indicated that compression exercises and tri-party novations raised concerns regarding the potential for double-counting. The Commission shares the commenter's concern that double-counting could create a distorted view of the security-based swap market. Therefore, the Commission is adding new language at the end of the Rule 901(i) which provides that the reporting side of a pre-enactment or transitional security-based swap must “indicate whether the security-based swap was open as of the date of such report.” This information is necessary to allow a registered SDR to calculate a participant's open positions established before the time trade-by-trade reporting becomes mandatory for a particular asset class.

The commenter also stated that “inter-affiliate security-based swaps should not be subject to reporting.” [219] The Commission disagrees with this suggestion. As described in Section IX, infra, the Commission believes generally that inter-affiliate security-based swaps should be subject to regulatory reporting and public dissemination. The Commission thus believes that pre-enactment inter-affiliate security-based swaps also should be subject to regulatory reporting, assuming that such security-based swaps were opened after the date of enactment or still open as of the date of enactment. The Commission notes, however, that no information reported pursuant to Rule 901(i) will be publicly disseminated.

Having access to information regarding historical security-based swaps will help the Commission and other relevant authorities continue to develop a baseline understanding of positions and risk in the security-based swap market, starting on the date of enactment of the Dodd-Frank Act, which contemplates the regime for regulatory reporting of all security-based swaps. These transaction reports will provide a benchmark against which to assess the development of the security-based swap market over time, and help the Commission to prepare reports that it is required to provide to Congress.

One commenter, while generally supporting the Commission's proposal to require reporting of historical security-based swaps to a registered SDR, argued that only open contracts should be reported.[220] The Commission partially agrees with this comment and thus, as noted above, is requiring reporting of only pre-enactment security-based swaps that were open as of the date of enactment. However, the Commission believes that all security-based swaps entered into on or after the date of enactment should be reported—even if they expired or were terminated before trade-by-trade reporting becomes mandatory—and that the reporting side should indicate whether the security-based swap was open as of the date of such report. While reporting of terminated or expired transitional security-based swaps is not necessary for the calculation of market participants' open positions, this information will assist the Commission and other relevant authorities to create, for surveillance purposes, at least a partial audit trail [221] of transactions executed after the date of enactment and, more generally, to analyze market developments since the date of enactment.

This commenter also argued that security-based swaps “only [in] their current state should need to be reported, without additional information like execution time.” [222] A second commenter expressed concern that the reporting requirements for historical security-based swaps could require parties to modify existing trades that occurred in a heretofore unregulated market in order to comply with Rule 901(i).[223] A third commenter expressed concern that “[t]he submission of non-electronic transaction confirmations [for pre-enactment security-based swaps] will be extremely burdensome for reporting entities,” [224] and recommended instead that the Commission “permit the reporting in a common electronic format of the principal electronic terms” of each such pre-enactment security-based swap.[225]

For several reasons, the Commission believes that Rule 901(i) strikes a reasonable balance between the burdens placed on security-based swap counterparties and the policy goal of enabling the Commission and other relevant authorities to develop a baseline understanding of counterparties' security-based swap positions. First, the Commission notes that Rule 901(i) requires reporting of the data elements set forth in Rules 901(c) and 901(d) only to the extent such information is available. The Commission does not expect, nor is it requiring, reporting sides to create or re-create data related to historical security-based swaps. Thus, if the time of execution of a historical security-based swap was not recorded by the counterparties, it is not required to be reported under Rule 901(i). Similarly, Rule 901(i) does not require counterparties to modify existing transactions in any way to ensure that all data fields are complete. By limiting the reporting requirement to only that information that is available, the Commission is acknowledging that, for historical security-based swaps, certain information contemplated by Rules 901(c) and 901(d) may not be available. The Commission generally believes that the benefits of requiring security-based swap counterparties to reconstruct the missing data elements—including, for example, the time of execution—potentially several years after the time of execution—would not justify the costs.Start Printed Page 14592

The Commission agrees with the commenter who argued that providing large volumes of non-electronic confirmations to registered SDRs is not desirable, and that the Commission instead should require reporting in a “common electronic format.” [226] As discussed in Section IV, infra, Rules 907(a)(1) and 907(a)(2) require registered SDRs to establish and maintain policies and procedures that enumerate the specific data elements and the acceptable data formats for transaction reporting, including of historical security-based swaps. The Commission expects that registered SDRs and their participants will consult regarding the most efficient and cost effective ways to report the transaction information required by Rule 901(i). Furthermore, to the extent that information regarding a historical security-based swap already has been reported to a person that will register with the Commission as an SDR—or to a person that itself will not seek registration as an SDR but will transfer the historical security-based swap information to an affiliate that registers as an SDR—Rule 901(i) would be satisfied, and would not require resubmission of that information to the registered SDR.[227]

Finally, the Commission notes an issue relating to the reporting of the counterparty ID of historical security-based swaps. As commenters have discussed,[228] certain foreign jurisdictions have privacy laws or blocking statutes that may prohibit the disclosure of the identity of a counterparty to a financial transaction, such as a security-based swap transaction. Thus, the reporting side of a cross-border security-based swap could face a dilemma: Comply with Regulation SBSR and report the identity of the counterparty and thereby violate the foreign law, or comply with the foreign law by withholding the identity of the counterparty and thereby violate Regulation SBSR. As discussed in Section XVI(B), infra, the Commission will consider requests for exemptions from the requirement under Rule 901(i) to report the identity of a counterparty with respect to historical security-based swaps.

III. Where To Report Data

A. All Reports Must Be Submitted to a Registered SDR

Section 13A(a)(1) of the Exchange Act [229] provides that “[e]ach security-based swap that is not accepted for clearing by any clearing agency or derivatives clearing organization shall be reported to—(A) a registered security-based swap data repository described in Section 13(n); or (B) in the case in which there is no security-based swap data repository that would accept the security-based swap, to the Commission.” Section 13(m)(1)(G) of the Exchange Act [230] provides that “[e]ach security-based swap (whether cleared or uncleared) shall be reported to a registered security-based swap data repository.” Rule 901(b) implements these statutory requirements.

Rule 901(b), as re-proposed, would have required reporting of the security-based swap transaction information required under Regulation SBSR “to a registered security-based swap data repository or, if there is no registered security-based swap data repository that would accept the information, to the Commission.” In addition, Rule 13n-5(b)(1)(ii) under the Exchange Act, adopted as part of the SDR Adopting Release, requires an SDR that accepts reports for any security-based swap in a particular asset class to accept reports for all security-based swaps in that asset class that are reported to the SDR in accordance with certain SDR policies and procedures. In view of this requirement under Rule 13n-5(b)(1)(ii) and the statutory requirement in Section 13(m)(1)(G) that all security-based swaps, whether cleared or uncleared, must be reported to a registered SDR, the Commission does not anticipate that any security-based swaps will be reported directly to the Commission.

Some commenters noted the potential advantages of designating a single registered SDR for each asset class.[231] Another commenter, however, believed that a diverse range of options for reporting security-based swap data would benefit the market and market participants.[232] These comments concerning the development of multiple registered SDRs are discussed in Section XIX, infra. No commenters opposed Rule 901(b), and the Commission is adopting Rule 901(b) with technical modifications to clarify the rule.[233]

B. Duties of Registered SDR Upon Receiving Transaction Reports

1. Rule 901(f)—Time Stamps

Rule 901(f), as re-proposed, provided that “[a] registered security-based swap data repository shall time stamp, to the second, its receipt of any information submitted to it pursuant to paragraph (c), (d), (e), or (i) of this section.” The Commission preliminarily believed that this requirement would help regulators to evaluate certain trading activity.[234] For example, a reporting side's pattern of submitting late transaction reports could be an indicator of weaknesses in the reporting side's internal compliance processes. Accordingly, the Commission preliminarily believed that the ability to compare the time of execution with the time of receipt of the report by the registered SDR could be an important component of surveillance activity conducted by relevant authorities.

One commenter, noting that proposed Rule 901(f) would require time-stamping to the nearest second, argued that “[t]ime-stamping increment should be as small as technologically practicable, but in any event no longer than fractions of milliseconds.” [235] The commenter expressed the view that, especially in markets with multiple SB SEFs or where algorithmic trading occurs, “the sequencing of trade data for transparency and price discovery, as well as surveillance and enforcement purposes, will require much smaller increments of time-stamping.” [236] The Commission notes, however, that Rule 901(f) is designed to allow the Commission to learn when a transaction has been reported to a registered SDR, not when the transaction was executed. The interim phase of applying Regulation SBSR allows transactions to Start Printed Page 14593be reported up to 24 hours after time of execution. The Commission believes that no purpose would be served by knowing the moment of reporting to the subsecond. Instead, the Commission believes that this comment is germane instead to the reporting of time of execution. Therefore, the Commission has considered this comment in connection with Rule 901(c)(2) rather than with Rule 901(f).[237]

The Commission continues to believe that requiring a registered SDR to timestamp, to the second, its receipt of any information pursuant to paragraphs (c), (d), (e), or (i) of Rule 901 is appropriate, and is adopting Rule 901(f) as re-proposed. Rule 901(f) will allow the Commission to compare the time of execution against the time of receipt by the registered SDR to ascertain if a transaction report has been submitted late.

2. Rule 901(g)—Transaction IDs

Rule 901(g), as proposed and re-proposed, would have provided that “[a] registered security-based swap data repository shall assign a transaction ID to each security-based swap.” The transaction ID was defined in both the proposal and re-proposal as “the unique identification code assigned by a registered security-based swap data repository to a specific security-based swap.” The Commission preliminarily believed that a unique transaction ID would allow registered SDRs, regulators, and counterparties to more easily track a security-based swap over its duration and would facilitate the reporting of life cycle events and the correction of errors in previously reported security-based swap information.[238] The transaction ID of the original security-based swap would allow for the linking of the original report to a report of a life cycle event. Similarly, the transaction ID would be required to be included on an error report to identify the transaction to which the error report pertained.

In proposing Rule 901(g), the Commission preliminarily believed that, because each transaction is unique, it would not be necessary or appropriate to look to an internationally recognized standards setting body for assigning such identifiers.[239] Instead, proposed Rule 901(g) would have required a registered SDR to use its own methodology for assigning transaction IDs.[240]

Two commenters generally supported use of the transaction ID.[241] One commenter stated that transaction IDs would allow for a complete audit trail, permit the observation of concentrations of trading and risk exposure at the transaction level, and facilitate more timely analysis of market events.[242] The second commenter agreed that a transaction ID would be essential for reporting life cycle event and secondary trade information, as well as corrections to reported information.[243]

Commenters expressed mixed views regarding the entity that should assign the transaction ID. One commenter stated that a platform should assign the transaction ID to assure that the identifier is assigned at the earliest point in the life of a transaction.[244] A second commenter suggested that registered SDRs should assign transaction IDs,[245] or have the flexibility to accept transaction IDs already generated by the reporting side or to assign transaction IDs when requested to do so.[246] A third commenter expressed concern that registered SDRs would assign transaction IDs in a non-standard manner, which could hinder regulators' ability to gather transaction data across registered SDRs to reconstruct an audit trail.[247] A fourth commenter, a trade association, recommended that security-based swaps be identified by a Unique Trade Identifier (“UTI”) created either by the reporting side or by a platform (including an execution venue or an affirmation or middleware or electronic confirmation platform) on behalf of the parties.[248] This commenter noted that it has worked with market participants to develop a standard for creating and exchanging a single unique transaction identifier suitable for global reporting.[249]

After careful consideration, the Commission has determined to adopt Rule 901(g) with modifications to respond to concerns raised by the commenters. Final Rule 901(g) provides that a registered SDR “shall assign a transaction ID to each security-based swap, or establish or endorse a methodology for transaction IDs to be assigned by third parties.” The Commission is also making a conforming change to the definition of “transaction ID.” Final Rule 900(mm) defines “transaction ID” as “the UIC assigned to a specific security-based swap transaction.” As re-proposed, “transaction ID” would have been defined as “the unique identification code assigned by a registered security-based swap data repository to a specific security-based swap.” [250] By eliminating the reference to a UIC “assigned by a registered security-based swap data repository,” the revised definition contemplates that a third party could assign a transaction ID under Regulation SBSR. However, because the Commission believes that the registered SDR is in the best position to promote the necessary uniformity for UICs that will be reported to it, the reporting side would be permitted to report a transaction ID generated by a third party only if the third party had employed a methodology for generating transaction IDs that had been established or endorsed by the registered SDR.

Rule 901(g), as adopted, provides flexibility by requiring a registered SDR either to assign a transaction ID itself or to establish or endorse a methodology for assigning transaction IDs. Thus, under adopted Rule 901(g), an SB SEF, Start Printed Page 14594a counterparty, or another entity could assign a transaction ID, provided that it assigned the transaction ID using a methodology established or endorsed by the registered SDR. This approach will allow market participants to determine the most efficient and effective procedures for assigning transaction IDs and will accommodate the use of different processes that might be appropriate in different circumstances.[251] For example, an SB SEF might generate the transaction ID for a security-based swap executed on its facilities (provided the SB SEF does so using a methodology established or endorsed by the registered SDR [252] ), while a registered SDR or security-based swap dealer counterparty might generate the transaction ID for a security-based swap that is not executed on an SB SEF.

IV. How To Report Data—Rules 901(h) and 907

A. Introduction

Designing a comprehensive system of transaction reporting and post-trade transparency for security-based swaps involves a constantly evolving market, thousands of participants, and potentially millions of transactions. The Commission does not believe that it is necessary or appropriate to specify by rule every detail of how this system should operate. On some matters, there may not be a single correct approach for carrying out the purposes of Title VII's requirements for regulatory reporting and public dissemination of security-based swap transactions.

The Commission believes that registered SDRs will play an important role in developing, operating, and improving the system for regulatory reporting and public dissemination of security-based swaps. Registered SDRs are at the center of the market infrastructure, as the Dodd-Frank Act requires all security-based swaps, whether cleared or uncleared, to be reported to them.[253] Accordingly, the Commission believes that some reasonable flexibility should be given to registered SDRs to carry out their functions—for example, to specify the formats in which counterparties must report transaction data to them, connectivity requirements, and other protocols for submitting information. Furthermore, the Commission anticipates that counterparties will make suggestions to registered SDRs for altering and improving their practices, or developing new policies and procedures to address new products or circumstances, consistent with the requirements set out in Regulation SBSR.

Accordingly, proposed Rule 907 would have required each registered SDR to establish and maintain written policies and procedures addressing various aspects of security-based swap transaction reporting. Proposed Rules 907(a)(1) and 907(a)(2) would have required a registered SDR to establish policies and procedures enumerating the specific data elements that must be reported, the acceptable data formats, connectivity requirements, and other protocols for submitting information; proposed Rule 907(a)(3) would have required a registered SDR to establish policies and procedures for reporting errors and correcting previously submitted information; proposed Rule 907(a)(4) would have required a registered SDR to establish policies and procedures for, among other things, reporting and publicly disseminating life cycle events and transactions that do not reflect the market; proposed Rule 907(a)(5) would have required a registered SDR to establish policies and procedures for assigning UICs; proposed Rule 907(a)(6) would have required a registered SDR to establish policies and procedures for obtaining ultimate parent and affiliate information from its participants; and proposed Rule 907(b) would have required a registered SDR to establish policies and procedures for calculating and publicizing block trade thresholds. The Commission also proposed to require registered SDRs to make their policies and procedures publicly available on their Web sites, and to update them at least annually.[254] Rule 901(h), as proposed and re-proposed, would have required reports to be made to a registered SDR “in a format required by the registered security-based swap data repository, and in accordance with any applicable policies and procedures of the registered security-based swap data repository.”

Furthermore, because all security-based swaps must be reported to a registered SDR, registered SDRs are uniquely positioned to know of any instances of untimely, inaccurate, or incomplete reporting. Therefore, proposed Rule 907(e) would have required registered SDRs to have the capacity to provide the Commission with reports related to the timeliness, accuracy, and completeness of the data reported to them.

The Commission re-proposed Rule 907 as part of the Cross-Border Proposing Release with only minor conforming changes.[255] Rule 901(h) was re-proposed without revision.

B. Rules 907(a)(1), 907(a)(2), and 901(h)—Data Elements and Formats

The comments addressing Rule 907 were generally supportive of providing flexibility to registered SDRs to develop policies and procedures.[256] One commenter stated, for example, that overly prescriptive rules for how data is reported will almost certainly result in less reliable or redundant data flowing into an SDR when higher quality data is available. In this commenter's view, the Commission should not prescribe the exact means of reporting for SDRs to meet regulatory obligations, and SDRs should be afforded the flexibility to devise the most efficient, effective, and reliable methods of furnishing the Commission with the complete set of data necessary to fulfill regulatory obligations.[257] The Commission is adopting Rule 907 with some revisions noted below.

Final Rule 907(a)(1) requires a registered SDR to establish and maintain written policies and procedures that “enumerate the specific data elements of a security-based swap that must be reported, which shall include, at a minimum, the data elements specified in [Rules 901(c) and 901(d)].” The Commission revised Rule 907(a)(1) to make certain non-substantive changes and to move the requirement to establish policies and procedures for life cycle event reporting from final Rule 907(a)(1) to final Rule 907(a)(3).[258] Final Start Printed Page 14595Rule 907(a)(2) requires a registered SDR to establish and maintain written policies and procedures that “specify one or more acceptable data formats (each of which must be an open-source structured data format that is widely used by participants), connectivity requirements, and other protocols for submitting information.” The Commission is adopting Rule 907(a)(2) as re-proposed.

The Commission continues to believe that it is neither necessary nor appropriate to mandate a fixed schedule of data elements to be reported, or a single format or language for reporting such elements to a registered SDR. The Commission anticipates that industry standards for conveying information about security-based swap transactions will evolve over time, and the approach taken in Rule 907 is designed to allow Regulation SBSR's reporting requirements to evolve with them. The Commission further anticipates that security-based swap products with novel contract terms could be developed in the future. Establishing, by Commission rule, a fixed schedule of data elements risks becoming obsolete, as new data elements—as yet unspecified—could become necessary to reflect the material economic terms of such products. Final Rules 907(a)(1) and 907(a)(2) give registered SDRs the duty, but also the flexibility, to add, remove, or amend specific data elements or to adjust the required reporting protocols over time in a way that captures all of the material terms of a security-based swap while minimizing the reporting burden on its participants.[259] One commenter supported this approach, stating that “[a] registered SDR should have the flexibility to specify acceptable formats, connectivity requirements and other protocols for submitting information.” [260] The commenter added that “[m]arket practice, including the structure of confirmation messages and detail of economic fields, evolve over time, and the SDR should have the capability to adopt and set new formats.” [261] The Commission anticipates that feedback and ongoing input from participants will help registered SDRs to craft appropriate policies and procedures regarding data elements and reporting protocols.

The same commenter, in a subsequent comment letter, expressed concern that market participants could adopt different interpretations of the requirement to report payment stream information, which could result in inconsistent reporting to registered SDRs.[262] The Commission notes that final Rule 907(a)(1) requires a registered SDR to enumerate the specific data elements of a security-based swap that must be reported, and final 907(a)(2) requires a registered SDR, among other things, to specify acceptable data formats for submitting required information. Because Rules 907(a)(1) and 907(a)(2) provide a registered SDR with the authority to identify the specific data elements that must be reported with respect to the payment streams of a security-based swap and the format for reporting that information, the Commission does not believe that market participants will have flexibility to adopt inconsistent interpretations of the information required to be reported with respect to payment streams. Instead, persons with the duty to report transactions will be required to provide the payment stream information using the specific data elements and formats specified by the registered SDR.

One commenter argued that a uniform electronic reporting format is essential, and was concerned that Rules 901(h) and 907(a)(2) would permit multiple formats and connectivity requirements for the submission of data to a registered SDR.[263] The Commission considered the alternative of requiring a single reporting language or protocol for conveying information to registered SDRs, and three commenters encouraged the use of the FpML standard.[264] While FpML could be a standard deemed acceptable by a registered SDR pursuant to Rule 907(a)(2), the Commission does not believe that it is necessary or appropriate at this time for the Commission itself to require FpML as the only permissible standard by which reporting sides report transaction data to a registered SDR.[265] The Commission is concerned that adopting a regulatory requirement for a single standard for reporting security-based swap transaction information to registered SDRs could result in unforeseen adverse consequences, particularly if that standard proves incapable of being used to carry information about all of the material data elements of all security-based swaps, both those that exist now and those that might be created in the future. Thus, the Commission has adopted an approach that permits registered SDRs to select their own standards for how participants must report data to those SDRs. The Commission agrees with the commenter who recommended that all acceptable data formats should be open-source structured data formats.[266] The Commission believes that any reporting languages or protocols adopted by registered SDRs must be open-source structured data formats that are widely used by participants, and that information about how to use any such language or protocol is freely and openly available.[267]

The Commission believes that, however registered SDRs permit their participants to report security-based swap transaction data to the SDRs, those SDRs should be able to provide to the Commission normalized and uniform data, so that the transaction data can readily be used for regulatory purposes without the Commission itself having to cleanse or normalize the data.[268] Start Printed Page 14596However, it does not follow that information must be submitted to a registered SDR using a single electronic reporting format. The Commission believes that a registered SDR should be permitted to make multiple reporting formats available to its participants if it chooses, provided that the registered SDR can quickly and easily normalize and aggregate the reported data in making it accessible to the Commission and other relevant authorities. If a registered SDR is not willing or able to normalize data submitted pursuant to multiple data formats, then its policies and procedures under Rule 907(a)(2) should prescribe a single data format for participants to use to submit data to the registered SDR.

The Commission believes that the policies and procedures of a registered SDR, required by Rule 907(a)(1), likely will need to explain the method for reporting if all the security-based swap transaction data required by Rules 901(c) and 901(d) are being reported simultaneously, and how to report if responsive data are being provided at separate times.[269] One way to accomplish this would be for the registered SDR to link the two reports by the transaction ID, which could be done by providing the reporting side with the transaction ID after the reporting side reports the information required by Rule 901(c). The reporting side would then include the transaction ID with its submission of data required by Rule 901(d), thereby allowing the registered SDR to match the report of the Rule 901(c) data and the subsequent report of the Rule 901(d) data.

Finally, Rule 901(h), as re-proposed, would have provided: “A reporting side shall electronically transmit the information required under this section in a format required by the registered security-based swap data repository, and in accordance with any applicable policies and procedures of the registered security-based swap data repository.” The Commission received only one comment on Rule 901(h), which is addressed above.[270] The Commission is adopting Rule 901(h) as re-proposed, with two minor revisions to clarify the rule. First, the rule text has been revised to refer to “A” reporting side instead of “The” reporting side. Accordingly, the Commission has revised Rule 901(h) to refer to the registered SDR to which a reporting side reports transactions. Second, Rule 901(h), as adopted, does not include the phrase “and in accordance with any applicable policies and procedures of the registered security-based swap data repository.” The Commission believes that it is sufficient for the rule to state that the reporting side must report the transaction information “in a format required by” the registered SDR.[271]

C. Rule 907(a)(6)—Ultimate Parent IDs and Counterparty IDs

As originally proposed, Rule 907(a)(6) would have required a registered SDR to establish and maintain written policies and procedures “[f]or periodically obtaining from each participant information that identifies the participant's ultimate parent(s) and any other participant(s) with which the counterparty is affiliated, using ultimate parent IDs and participant IDs” (emphasis added). The Commission re-proposed Rule 907(a)(6) with the word “participant” in place of the word “counterparty.” Re-proposed Rule 907(a)(6) would have required a registered SDR to establish and maintain written policies and procedures for periodically obtaining from each participant information that identifies the participant's ultimate parent(s) and any other participant(s) with which the counterparty is affiliated, using ultimate parent IDs and participant IDs. The Commission received one comment relating to Rule 907(a)(6), which suggested that parent and affiliate information could be maintained by a market utility rather than by one or more registered SDRs.[272]

The Commission notes that Regulation SBSR neither requires nor prohibits the development of a market utility for parent and affiliate information. Regulation SBSR requires a registered SDR to obtain parent and affiliate information from its participants and to maintain it, whether or not a market utility exists. Regulation SBSR does not prohibit SDR participants from storing parent and affiliate information in a market utility or from having the market utility report such information to a registered SDR as agent on their behalf, so long as the information is provided to the registered SDR in a manner consistent with Regulation SBSR and the registered SDR's policies and procedures.

The Commission is adopting Rule 907(a)(6) substantially as re-proposed, with a technical change to replace the word “counterparty” with the word “participant” and a conforming change to replace the reference to “participant IDs” with a reference to “counterparty IDs.” Thus, final Rule 907(a)(6) requires a registered SDR to establish and maintain written policies and procedures “[f]or periodically obtaining from each participant information that identifies the participant's ultimate parent(s) and any participant(s) with which the participant is affiliated, using ultimate parent IDs and counterparty IDs” (emphasis added).

V. Who Reports—Rule 901(a)

A. Proposed and Re-Proposed Rule 901(a)

Section 13(m)(1)(F) of the Exchange Act [273] provides that parties to a security-based swap (including agents of parties to a security-based swap) shall be responsible for reporting security-based swap transaction information to the appropriate registered entity in a timely manner as may be prescribed by the Commission. Section 13(m)(1)(G) of the Exchange Act [274] provides that each security-based swap, “whether cleared or uncleared,” shall be reported to a registered SDR. Section 13A(a)(3) of the Exchange Act [275] specifies the party obligated to report a security-based swap that is not accepted for clearing by any clearing agency or derivatives clearing organization. Rule 901(a), as adopted, assigns to specific persons the duty to report certain security-based swaps to a registered SDR, thereby Start Printed Page 14597implementing Sections 13(m)(1)(F), 13(m)(1)(G), and 13A(a)(3) of the Exchange Act. In addition, in the Regulation SBSR Proposed Amendments Release, the Commission is proposing revisions to Rule 901(a), as adopted, to further implement these provisions of the Exchange Act as they apply to clearing transactions (as defined below) and transactions executed on platforms and that will be submitted to clearing.

As originally proposed, Rule 901(a) would have assigned reporting duties exclusively to one of the direct counterparties to a security-based swap based on the nationality of the counterparties. The original proposal contemplated three scenarios: Both direct counterparties are U.S. persons, only one direct counterparty is a U.S. person, or neither direct counterparty is a U.S. person.[276] Under the original proposal, if only one counterparty to a security-based swap is a U.S. person, the U.S. person would have been the reporting party. If neither counterparty is a U.S. person (and assuming the security-based swap is subject to Regulation SBSR), the counterparties would have been required to select the reporting party. Where both counterparties to a security-based swap are U.S. persons, the reporting party would have been determined according to the following hierarchy:

(i) If only one counterparty is a security-based swap dealer or major security-based swap participant, the security-based swap dealer or major security-based swap participant would be the reporting party.

(ii) If one counterparty is a security-based swap dealer and the other counterparty is a major security-based swap participant, the security-based swap dealer would be the reporting party.

(iii) With respect to any other security-based swap, the counterparties to the security-based swap would be required to select the reporting party.

Under Rule 901(a) as originally proposed, for a security-based swap between: (1) A non-registered U.S. person; and (2) a security-based swap dealer or major security-based swap participant that is a non-U.S. person, the non-registered U.S. person would have been the reporting party. The Commission preliminarily believed that, as between a U.S. person and a non-U.S. person, it was more appropriate to assign the duty to report to the U.S. person, even if the non-U.S. person was a security-based swap dealer or major security-based swap participant.[277]

In the Cross-Border Proposing Release, the Commission revised proposed Rule 901(a) in two significant ways. First, the Commission proposed to expand the scope of Regulation SBSR to require reporting (and, in certain cases, public dissemination) of any security-based swap that has a U.S. person acting as guarantor of one of the direct counterparties, even if neither direct counterparty is a U.S. person. To effectuate this requirement, the Cross-Border Proposing Release added the following new defined terms: “direct counterparty,” “indirect counterparty,” “side,” and “reporting side.” A “side” was defined to mean a direct counterparty of a security-based swap and any indirect counterparty that guarantees the direct counterparty's performance of any obligation under the security-based swap.[278] The Commission revised proposed Rule 901(a) to assign the duty to report to a “reporting side,” rather than a specific counterparty. Re-proposed Rule 901(a) generally preserved the reporting hierarchy of Rule 901(a), as originally proposed, while incorporating the “side” concept to reflect the possibility that a security-based swap might have an indirect counterparty that is better suited for carrying out the reporting duty than a direct counterparty. Thus, Rule 901(a), as re-proposed in the Cross-Border Proposing Release, would have assigned the reporting obligation based on the status of each person on a side (i.e., whether any person on the side is a security-based swap dealer or major security-based swap participant), rather than the status of only the direct counterparties. Second, the Commission proposed to expand the circumstances in which a security-based swap dealer or major security-based swap participant that is not a U.S. person would incur the duty to report a security-based swap.

Under Rule 901(a), as originally proposed, a non-U.S. person that is a direct counterparty to a security-based swap that was not executed in the United States or through any means of interstate commerce never would have had a duty to report the security-based swap, even if the non-U.S. person was a security-based swap dealer or major security-based swap participant or was guaranteed by a U.S. person. As re-proposed in the Cross-Border Proposing Release, Rule 901(a) re-focused the reporting duty primarily on the status of the counterparties, rather than on their nationality or place of domicile. Under re-proposed Rule 901(a), the nationality of the counterparties would determine who must report only if neither side included a security-based swap dealer or major security-based swap participant. In such case, if one side included a U.S. person while the other side did not, the side with the U.S. person would have been the reporting side. Similar to the original proposal, however, if both sides included a U.S. person or neither side included a U.S. person, the sides would have been required to select the reporting side.

B. Final Rule 901(a)

Rule 901(a), as adopted, establishes a “reporting hierarchy” that specifies the side that has the duty to report a security-based swap.[279] The reporting side, as determined by the reporting hierarchy, is required to submit the information required by Regulation SBSR to a registered SDR.[280] The reporting side may select the registered SDR to which it makes the required Start Printed Page 14598report. However, with respect to any particular transaction, all information required to be reported by Rule 901(a)(2)(ii), as adopted, must be reported to the same registered SDR. In the Regulation SBSR Proposed Amendments Release, issued as a separate release, the Commission is proposing additional provisions of Rule 901(a) that would assign reporting responsibilities for clearing transactions and platform-executed security-based swaps that will be submitted to clearing. The Commission also anticipates soliciting further comment on reporting duties for a security-based swap where neither side includes a registered security-based swap dealer or major security-based swap participant and neither side includes a U.S. person or only one side includes a U.S. person.[281]

1. Reporting Hierarchy

Final Rule 901(a)(2)(ii) adopts the reporting hierarchy largely as proposed in the Cross-Border Proposing Release, but limits its scope. The reporting hierarchy in Rule 901(a), as proposed and as re-proposed in the Cross-Border Proposing Release, did not contain separate provisions to address reporting responsibilities for two kinds of security-based swaps that are described in the Regulation SBSR Proposed Amendments Release: Clearing transactions and security-based swaps that are executed on a platform and that will be submitted to clearing. The Regulation SBSR Proposed Amendments Release solicits comment on proposed rules that address the reporting of these types of security-based swaps. The reporting hierarchy in Rule 901(a)(2)(ii), as adopted, applies to security-based swaps that are covered transactions.[282] The reporting hierarchy is designed to locate the duty to report with counterparties who are most likely to have the resources and who are best able to support the reporting function.

Specifically, final Rule 901(a)(2)(ii) provides that, for a covered transaction, the reporting side will be as follows:

(A) If both sides of the security-based swap include a registered security-based swap dealer, the sides shall select the reporting side.

(B) If only one side of the security-based swap includes a registered security-based swap dealer, that side shall be the reporting side.

(C) If both sides of the security-based swap include a registered major security-based swap participant, the sides shall select the reporting side.

(D) If one side of the security-based swap includes a registered major security-based swap participant and the other side includes neither a registered security-based swap dealer nor a registered major security-based swap participant, the side including the registered major security-based swap participant shall be the reporting side.

(E) If neither side of the security-based swap includes a registered security-based swap dealer or registered major security-based swap participant: (1) If both sides include a U.S. person, the sides shall select the reporting side. (2) [Reserved].[283]

The following examples explain the operation of final Rule 901(a)(2)(ii). For each example, assume that the relevant security-based swap is not executed on a platform.

  • Example 1. A non-registered U.S. person executes a security-based swap with a registered security-based swap dealer that is a non-U.S. person. Neither side has a guarantor. The registered security-based swap dealer is the reporting side.
  • Example 2. Same facts as Example 1, except that the non-registered U.S. person is guaranteed by a registered security-based swap dealer. Because both sides include a person that is a registered security-based swap dealer, the sides must select which is the reporting side.
  • Example 3. Two private funds execute a security-based swap. Both direct counterparties are U.S. persons, neither is guaranteed, and neither is a registered security-based swap dealer or registered major security-based swap participant. The sides must select which is the reporting side.

In Rule 901(a)(2)(ii), as adopted, the Commission has included the word “registered” before each instance of the terms “security-based swap dealer” and “major security-based swap participant.” A person is a security-based swap dealer or major security-based swap participant if that person meets the statutory definition of that term, regardless of whether the person registers with the Commission.[284] A person meeting one of those statutory definitions must register with the Commission in that capacity. However, persons meeting one of the statutory definitions cannot register in the appropriate capacity until the Commission adopts registration rules for these classes of market participant. The Commission has proposed but not yet adopted registration rules for security-based swap dealers and major security-based swap participants. Thus, currently, there are no registered security-based swap dealers even though many market participants act in a dealing capacity in the security-based swap market.

Including the word “registered” before each instance of the terms “security-based swap dealer” and “major security-based swap participant” in final Rule 901(a)(2)(ii) means that it will not be necessary for a person to evaluate whether it meets the definition of “security-based swap dealer” or “major security-based swap participant” solely in connection with identifying which counterparty must report a Start Printed Page 14599security-based swap under Regulation SBSR.[285]

A result of the Commission's determination to apply duties in Rule 901(a)(2)(ii) based on registration status rather than on meeting the statutory definition of “security-based swap dealer” or “major security-based swap participant” is that, until such persons register with the Commission as such, all covered transactions will fall within Rule 901(a)(2)(ii)(E). In other words, under the adopted reporting hierarchy, because neither side of the security-based swap includes a registered security-based swap dealer or registered major security-based swap participant, the sides shall select the reporting side.

2. Other Security-Based Swaps

Rule 901(a), as proposed and re-proposed in the Cross-Border Proposing Release, did not differentiate between platform-executed security-based swaps and other types of security-based swaps in assigning the duty to report. Similarly, the proposed and re-proposed rule would have assigned reporting obligations without regard to whether a particular security-based swap was cleared or uncleared.[286] In the Regulation SBSR Proposing Release, the Commission expressed a preliminary view that cleared and uncleared security-based swaps should be subject to the same reporting procedures.[287] The Commission preliminarily believed that security-based swap dealers and major security-based swap participants generally should be responsible for reporting security-based swap transactions of all types, because they are more likely than other counterparties to have appropriate systems in place to facilitate reporting.[288]

Commenters raised a number of concerns about the application of the reporting hierarchy to platform-executed security-based swaps that will be submitted to clearing and clearing transactions.[289] The Commission has determined that final resolution of these issues would benefit from further consideration and public comment. Accordingly, in the Regulation SBSR Proposed Amendments Release, the Commission is proposing amendments to Rule 901(a) that would assign the reporting obligation for clearing transactions and platform-executed security-based swaps that will be submitted to clearing.

To differentiate between security-based swaps that are subject to the reporting hierarchy in Rule 901(a)(2)(ii) and those that are not, the Commission is defining a new term, “clearing transaction,” in Rule 900(g). A “clearing transaction” is “a security-based swap that has a registered clearing agency as a direct counterparty.” [290] This definition encompasses all security-based swaps that a registered clearing agency enters into as part of its security-based swap clearing business. The definition includes, for example, any security-based swaps that arise if a registered clearing agency accepts a security-based swap for clearing, as well as any security-based swaps that arise as part of a clearing agency's internal processes, such as security-based swaps used to establish prices for cleared products and security-based swaps that result from netting other clearing transactions of the same product in the same account into an open position.[291]

Two models of clearing—an agency model and a principal model—are currently used in the swap markets. In the agency model, which predominates in the U.S. swap market, a swap that is accepted for clearing—often referred to in the industry as an “alpha”—is terminated and replaced with two new swaps, known as “beta” and “gamma.” The Commission understands that, under the agency model, one of the direct counterparties to the alpha becomes a direct counterparty to the beta, and the other direct counterparty to the alpha becomes a direct counterparty to the gamma. The clearing agency would be a direct counterparty to each of the beta and the gamma.[292] This release uses the terms “alpha,” “beta,” and “gamma” in the same way that they are used in the agency model of clearing in the U.S. swap market.[293] The Commission notes that, under Regulation SBSR, an alpha is not a “clearing transaction,” even though it is submitted for clearing, because it does not have a registered clearing agency as a direct counterparty.[294]

Start Printed Page 14600

C. Discussion of Comments and Basis for Final Rule

The Commission requested and received comment on a wide range of issues related to Rule 901(a), as proposed and re-proposed in the Cross-Border Proposing Release. As described in more detail below, commenters addressed a number of topics, including the application of Rule 901(a) to sides rather than direct counterparties, the role of agents in the reporting process, the application of Rule 901(a) to cleared security-based swaps, and the types of entities that should be required to report security-based swaps.

1. Application of the Reporting Hierarchy to Sides

The Commission received a number of comments on the reporting hierarchy in proposed Rule 901(a).[295] As described in the Cross-Border Proposing Release, a number of commenters objected to the reporting hierarchy in Rule 901(a), as originally proposed, on the grounds that it would unfairly impose reporting burdens on non-registered U.S.-person counterparties that enter into security-based swaps with non-U.S.-person security-based swap dealers or major security-based swap participants.[296] In the Cross-Border Proposing Release, the Commission re-proposed a modified reporting hierarchy in response to the commenters' concerns.[297]

The Commission believes that a non-registered person should not incur the duty to report a security-based swap when a registered security-based swap dealer or registered major security-based swap participant, directly or indirectly, is on the other side of the transaction, and is adopting the reporting hierarchy in Rule 901(a)(2)(ii) to effect this result. Rule 901(a), as adopted, is designed to assign reporting duties to the person best positioned to discharge those duties. The Commission believes that registered security-based swap dealers and registered major security-based swap participants, regardless of whether they are U.S. persons, will have greater technological capability than non-registered persons to report security-based swaps as required by Regulation SBSR. Accordingly, the Commission is adopting the reporting hierarchy in Rule 901(a)(2)(ii) largely as re-proposed to give registered security-based swap dealers and registered major security-based swap participants reporting obligations, regardless of whether they are U.S. persons. Furthermore, the Commission believes that it is appropriate to assign the duty to report to the side that includes a non-U.S. person registered security-based swap dealer or major security-based swap participant, even as an indirect counterparty, if neither the direct or indirect counterparty on the other side includes a registered security-based swap dealer or a registered major security-based swap participant. The fact that a person is a registered security-based swap dealer or registered major security-based swap participant implies that the person has substantial contacts with the U.S. security-based swap market and thus would understand that it could incur significant regulatory duties arising from its security-based swap business, or has voluntarily registered and chosen to undertake the burdens associated with such registration. The fact that a person is a registered security-based swap dealer or registered major security-based swap participant also implies that the person has devoted substantial infrastructure and administrative resources to its security-based swap business, and thus would be more likely to have the capability to carry out the reporting function than a non-registered counterparty.

In response to the Cross-Border Proposing Release, one commenter raised concerns about burdens that the re-proposed reporting hierarchy might place on U.S. persons.[298] This commenter noted that certain non-U.S. persons might engage in security-based swap dealing activities in the United States below the de minimis threshold for security-based swap dealer registration. The commenter expressed the view that an unregistered non-U.S. person that is acting in a dealing capacity likely would have “greater technological capability and resources available to fulfill the reporting function” than an unregistered U.S. person that is not acting in a dealing capacity.[299] The commenter suggested that, when an unregistered U.S. person enters into a security-based swap with an unregistered non-U.S. person that is acting in a dealing capacity, it “would be more efficient and fair” to allow the counterparties to choose the reporting side than to assign the reporting obligation to the unregistered U.S. person.[300]

The Commission acknowledges these comments. The Commission did not propose, and is not adopting, rules that would permit counterparties to choose to impose reporting burdens on the unregistered non-U.S. person that is acting in a dealing capacity in this scenario. The Commission believes that the issue of whether the counterparties should be able to choose the reporting side when an unregistered non-U.S. person acts in a dealing capacity with respect to a security-based swap involving an unregistered U.S. person would benefit from further comment. Accordingly, Rule 901(a)(2)(ii), as adopted, does not assign a reporting side for security-based swaps involving an unregistered non-U.S. person and an unregistered U.S. person.

Other commenters focused on the Commission's proposal to introduce the “side” concept to the reporting hierarchy. In response to the Cross-Border Proposing Release, three comments recommended that direct counterparties bear reporting duties, rather than sides (i.e., that guarantors of direct counterparties not incur reporting responsibilities).[301] One of these commenters recommended that a non-U.S. company that provides its U.S. affiliate with a guarantee should not be subject to reporting responsibilities because the non-U.S. company would be outside the Commission's jurisdiction.[302] Another commenter noted that non-U.S. guarantors should not cause a security-based swap to become reportable.[303] The Commission generally agrees with these comments. As discussed in more detail in Section XV(C)(5), infra, Rule 908(a) of Regulation SBSR makes clear that a non-U.S. person guarantor would not cause a security-based swap to become reportable, unless the guarantor is a registered security-based swap dealer or a registered major security-based swap participant.[304] Moreover, Rule 908(b) Start Printed Page 14601provides that, notwithstanding any other provision of Regulation SBSR, a non-U.S. person guarantor of a security-based swap that is reportable would not incur any obligation under Regulation SBSR, including a reporting obligation under Rule 901(a)(2)(ii), unless the guarantor is a registered security-based swap dealer or a registered major security-based swap participant. Thus, for a security-based swap involving, on one side, the guaranteed U.S. affiliate of an unregistered non-U.S. person, only the guaranteed U.S. affiliate could incur reporting obligations under Regulation SBSR.[305]

The Commission disagrees with the broader point made by the commenters, however, and continues to believe that it is appropriate to adopt a final rule that places the reporting duty on the reporting side, rather than on a specific counterparty on the reporting side. The Commission notes that Rule 908(b)—which is discussed in more detail in Section XV, infra—limits the types of counterparties that incur obligations under Regulation SBSR to U.S. persons, registered security-based swap dealers, and registered major security-based swap participants. A person that does not fall within one of the categories enumerated in Rule 908(b) incurs no duties under Regulation SBSR. Accordingly, there may be situations where the direct counterparty on the reporting side—rather than the indirect counterparty, as in the commenter's example—would not fall within Rule 908(b) and therefore would incur no obligation under Regulation SBSR.[306] There will be cases where all counterparties on the reporting side fall within Rule 908(b). In these cases, Rule 901(a)(2)(ii), as adopted, provides reasonable flexibility to the counterparties on the reporting side to determine the specific person who will carry out the function of reporting the security-based swap on behalf of the reporting side. As stated in the Cross-Border Proposing Release, the Commission “understands that many reporting parties already have established linkages to entities that may register as registered SDRs, which could significantly reduce the out-of-pocket costs associated with establishing the reporting function.” [307] A reporting side could leverage these existing linkages, even if the entity that has established connectivity to the registered SDR is an indirect counterparty to the transaction.

The other commenters argued that incorporating indirect counterparties into current reporting practices could take considerable effort, because these practices, developed for use with the CFTC's swap data reporting regime, do not consider the registration status of indirect counterparties.[308] The commenter recommended that the industry should be permitted to use existing reporting party determination logic because negotiating the identity of the reporting side on a trade-by-trade basis would not be feasible.[309] Furthermore, one commenter noted that there is no industry standard source for information about indirect counterparties. As a result, “despite the requirement for participants to [provide] this information to [a registered SDR], there is a chance that the parties . . . could come up with a different answer as to which of them is associated with an indirect counterparty.” [310]

The Commission acknowledges these commenters' concerns, but continues to believe that it is appropriate for the reporting hierarchy to take into account both the direct and indirect counterparties on each side. Even without an industry standard source for information about indirect counterparties, counterparties to security-based swaps will need to know the identity and status of any indirect counterparties on a trade-by-trade basis to determine whether the transaction is subject to Regulation SBSR under final Rule 908(a).[311] By considering the status of indirect counterparties when assigning reporting obligations, Regulation SBSR is designed to reduce reporting burdens on non-registered persons without imposing significant new costs on other market participants, even though market participants may need to modify their reporting workflows. The Commission believes that market participants could adapt the mechanisms they develop for purposes of adhering to Rule 908(a) to facilitate compliance with the reporting hierarchy in Rule 901(a)(2)(ii). For example, the documentation for the relevant security-based swap could alert both direct counterparties to the fact that one counterparty's obligations under the security-based swap are guaranteed by a registered security-based swap dealer or registered major security-based swap participant. The counterparties can use that information to identify which side would be the reporting side for purposes of Regulation SBSR.

The Commission further believes that incorporating indirect counterparties into current reporting workflows is unlikely to cause substantial disruption to existing reporting logic because the status of an indirect counterparty likely will alter reporting practices in few situations. Most transactions in the security-based swap market today involve at least one direct counterparty who is likely to be a security-based swap dealer.[312] In such case, the current industry practice of determining the reporting side based only on the status of direct counterparties is likely to produce a result that is consistent with Rule 901.[313] The Commission understands that, in the current security-based swap market, market participants that are likely to be non-registered persons transact with each other only on rare occasions. In these circumstances, the status of an indirect counterparty could cause one side to become the reporting side, rather than leaving the choice of reporting side to the counterparties. For example, if a registered security-based swap dealer or registered major security-based swap participant guarantees one side of such a trade, the side including the non-registered person and the guarantor would, under Rule 901(a)(2), be the reporting side. The Commission believes that, if a registered security-based swap dealer or registered major security-based swap participant is willing to accept the responsibility of guaranteeing the performance of duties Start Printed Page 14602under a security-based swap contract, it should also be willing to accept the responsibility of having to report that security-based swap to satisfy Regulation SBSR. In any event, the Commission believes that, if a guarantor's security-based swap activities are extensive enough that it must register as a security-based swap dealer or major security-based swap participant, it would have systems in place to ensure that it complies with the regulatory obligations attendant to such registration, including any reporting obligations for security-based swaps.

Finally, one commenter requested that the Commission provide guidance that reporting parties could follow when the reporting hierarchy instructs them to select the reporting side.[314] The Commission does not believe at this time that it is necessary or appropriate for the Commission itself to provide such guidance, because the determination of which counterparty is better positioned to report these security-based swaps is likely to depend on the facts and circumstances of the particular transaction and the nature of the counterparties. Rule 901(a)(2)(ii), as adopted, instructs the sides to select the reporting side only when the two sides are of equal status (i.e., when both sides include a registered security-based swap dealer or when neither side includes a registered security-based swap dealer or registered major security-based swap participant). The Commission understands that, under existing industry conventions, market participants who act in a dealing capacity undertake the reporting function. Thus, the Commission believes that Rule 901(a)(2)(ii), as adopted, is not inconsistent with these current industry practices. Furthermore, the Commission would not be averse to the development and use of new or additional industry standards that create a default for which side would become the reporting side in case of a “tie,” provided that both sides agree to use such standards.

2. Reporting by Agents

In the Regulation SBSR Proposing Release, the Commission noted that Rule 901(a) would not prevent a reporting party from entering into an agreement with a third party to report a security-based swap on behalf of the reporting party.[315] Several commenters strongly supported the use of third-party agents to report security-based swaps.[316]

Four commenters addressed the types of entities that may wish to report security-based swaps on behalf of reporting parties. One commenter stated that platforms, clearing agencies, brokers, and stand-alone data reporting vendors potentially could provide reporting services to security-based swap counterparties.[317] Another commenter requested that the Commission clarify that a security-based swap counterparty that was not the reporting party under Rule 901(a) would be able to agree contractually to report a security-based swap on behalf of the reporting party under Rule 901(a).[318] A third commenter noted that many market participants will look to third-party service providers to streamline the reporting process.[319] One commenter, however, recommended that the Commission should consider limiting the use of third-party reporting service providers to SB SEFs or other reporting market intermediaries, such as exchanges, because allowing unregulated third parties with potentially limited experience could lead to incomplete or inaccurate security-based swap reporting.[320]

Although the Commission agrees that security-based swap transaction information must be reported in a timely and accurate manner to fulfill the transparency and oversight goals of Title VII, the Commission does not believe that it is necessary, at this time, to allow only regulated intermediaries to perform reporting services on behalf of a reporting side. The Commission believes that reporting sides have a strong incentive to ensure that agents who report on their behalf have the capability and dedication to perform this function. In this regard, the Commission notes that any reporting side who contracts with a third party, including the non-reporting side, to report a security-based swap transaction on its behalf would retain the obligation to ensure that the information is provided to a registered SDR in the manner and form required under Regulation SBSR. Thus, a reporting side could be held responsible if its agent reported a security-based swap transaction to a registered SDR late or inaccurately.

In addition, the Commission believes that allowing entities other than regulated intermediaries to provide reporting services to reporting persons could enhance competition and foster innovation in the market for post-trade processing services. This could, in turn, encourage more efficient reporting processes to develop over time as technology improves and the market gains experience with security-based swap transaction reporting. Accordingly, Rule 901(a), as adopted, does not limit the types of entities that may serve as reporting agents on behalf of reporting sides of security-based swaps. Furthermore, nothing in Rule 901(a), as adopted, prohibits the reporting side from using the non-reporting side to report as agent on its behalf.[321]

3. Reporting Clearing Transactions

In establishing proposed reporting obligations, Regulation SBSR, as proposed and as re-proposed, did not differentiate between cleared and uncleared security-based swaps. Accordingly, cleared and uncleared security-based swaps would have been treated in the same manner for purposes of reporting transactions to a registered SDR. Multiple commenters addressed the reporting of cleared and uncleared security-based swaps. Two commenters supported the Commission's proposal to assign reporting obligations for cleared security-based swaps through the reporting hierarchy in all circumstances.[322] These commenters noted that the Commission's proposal would allow security-based swap counterparties, rather than clearing agencies, to choose the registered SDR that receives data about their security-based swaps.[323] Other commenters objected to the proposal on statutory and operational grounds.[324] Two commenters argued that Title VII's security-based swap reporting provisions and Regulation SBSR should Start Printed Page 14603not extend to clearing transactions.[325] In the alternative, they argued that, if the Commission requires clearing transactions to be reported to a registered SDR, the clearing agency that clears a security-based swap should have the duty to report the associated clearing transactions to a registered SDR of its choice because, “in contrast to uncleared [security-based swaps], the Clearing Agency is the sole party who holds the complete and accurate record of transactions and positions for cleared [security-based swaps] and in fact is the only entity capable of providing accurate and useful positional information on cleared [security-based swaps] for systemic risk monitoring purposes.”[326]

After careful consideration of the comments, the Commission has determined not to apply the reporting hierarchy in Rule 901(a)(2)(ii), as adopted, to clearing transactions.[327] In the Regulation SBSR Proposed Amendments Release, the Commission is proposing to revise Rule 901(a) to assign reporting duties for clearing transactions.[328] However, the reporting hierarchy in Rule 901(a)(2)(ii), as adopted, applies to alpha transactions that are not executed on a platform.[329]

One commenter expressed the view that reporting the alpha “adds little or no value to an analysis of market exposure since it is immediately replaced by the beta and gamma and cannot exist unless the swap is cleared.” [330] This commenter argued, therefore, that alpha transactions should not be reported to registered SDRs. The Commission disagrees with this comment, and believes instead that having a record of all alphas at registered SDRs will ensure that registered SDRs receive complete information about security-based swap transactions that are subject to the Title VII reporting requirement. This requirement is designed, in part, to provide valuable information about the types of counterparties active in the security-based swap market. Reconstructing this information from records of betas and gammas would be less efficient and potentially more prone to error than requiring reports of the alpha in the first instance. Furthermore, requiring reporting of the alpha transaction eliminates the need to address issues that would arise if there is a delay between the time of execution of the alpha and the time that it is submitted to clearing, or if the transaction is rejected by the clearing agency.

This commenter also stated that, if the alpha is reported, the “key to improving data quality is to have a single party responsible for reporting a cleared transaction, and thus with respect to whether reporting for purposes of public dissemination and/or reporting to a [registered SDR], the clearing agency should be responsible for the alpha once it is accepted for clearing.” [331] This commenter believed that this approach allows the data pertaining to the execution of the alpha to be more easily and accurately linked to the resulting beta and gamma.[332] The Commission also sees the importance in being able to link information about the alpha to a related beta and gamma. However, the Commission does not believe that relying solely on the clearing agency to report transaction information is the only or the more appropriate way to address this concern. As discussed in Section II(B)(3)(j), supra, the Commission is adopting in Rule 901(d)(10) a requirement that the reports of new security-based swaps (such as a beta and gamma) that result from the allocation, termination, novation, or assignment of one or more existing security-based swaps (such as an alpha) must include the transaction ID of the allocated, terminated, assigned, or novated security-based swap(s). This requirement is designed to allow the Commission and other relevant authorities to link related transactions across different registered SDRs.

4. Reporting by a Platform

Commenters expressed mixed views regarding reporting by platforms. Some commenters, addressing Rule 901(a) as originally proposed, recommended that the Commission require a platform to report security-based swaps executed on or through its facilities.[333] One of these commenters stated that a platform would be in the best position to ensure the accurate and timely reporting of a transaction executed on its facilities.[334] Another commenter expressed the view that having platforms report security-based swaps would facilitate economies in the marketplace by reducing the number of reporting entities.[335]

Four commenters, however, recommended that the Commission not impose reporting requirements on platforms.[336] Three of these commenters argued that certain practical considerations militate against assigning reporting duties to platforms.[337] Specifically, these commenters believed that a platform might not have all of the information required to be reported under Rules 901(c) and 901(d).[338] These commenters further noted that, even if a platform could report the execution of a security-based swap, it would lack information about life cycle events.[339] The third commenter stated that it could be less efficient for a platform to report than to have counterparties report.[340]

After careful consideration of the issues raised by the commenters, the Commission has determined not to apply the reporting hierarchy in Rule 901(a)(2)(ii), as adopted, to platform-executed transactions that will be submitted to clearing. In the Regulation SBSR Proposed Amendments Release, the Commission is proposing to assign reporting duties for platform-executed security-based swaps that will be Start Printed Page 14604submitted to clearing.[341] If the security-based swap will not be submitted to clearing, the platform would have no reporting obligation, and the reporting hierarchy in final Rule 901(a)(2)(ii) would apply.[342] The Commission notes that Section 13A(a)(3) of the Exchange Act provides that, for a security-based swap not accepted by any clearing agency, one of the counterparties must report the transaction. The reporting hierarchy of final Rule 901(a)(2)(ii) implements that provision and clarifies which side has the duty to report. The Commission believes that, in the case of security-based swaps that will not be submitted to clearing, the counterparties either will know each other's identity at the time of execution or the they will learn this information from the platform immediately or shortly after execution,[343] which will allow them to determine which side will incur the duty to report under Rule 901(a)(2)(ii), as adopted.

5. Reporting of a Security-Based Swap Resulting From a Life Cycle Event

Rule 901(e)(1)(i) requires the reporting side for a security-based swap to report a life cycle event of that security-based swap—such as a termination, novation, or assignment—to the registered SDR to which it reported the original transaction.[344] Certain life cycle events may result in the creation of a new security-based swap. The Commission is modifying Rule 901(a) to identify the reporting side for this new security-based swap.[345]

Rule 901(e), as adopted, identifies the reporting side for a life cycle event. Rule 901(e) does not, however, address who will be the reporting side for a new security-based swap that arises from a life cycle event (such as a termination) of an existing security-based swap.[346] To identify the reporting side for the new security-based swap, the Commission is modifying the introductory language of final Rule 901(a) to provide that a “security-based swap, including a security-based swap that results from the allocation, termination, novation, or assignment of another security-based swap, shall be reported” as provided in the rest of the rule.[347] This change responds to a commenter who suggested that reporting obligations be reassessed upon novation based on the current registration status of the remaining party and the new party to the security-based swap.[348] The reporting side designated by Rule 901(a) for the new transaction could be different from the reporting side for the original transaction.[349] The reporting side for the new security-based swap would be required to report the transaction within 24 hours of the time of creation of the new security-based swap.[350]

Rule 901(d)(10) requires the reporting side for the new security-based swap to report the transaction ID of the original security-based swap as a data element of the transaction report for the new security-based swap.[351] The Commission believes that this requirement will allow the Commission and other relevant authorities to link the report of a new security-based swap that arises from the allocation, termination, novation, or assignment of an existing security-based swap to the original security-based swap. As a result of these links, the Commission believes that it is not necessary or appropriate to require that a security-based swap that arises from the allocation, termination, novation, or assignment of an existing security-based swap be reported to the same registered SDR that received the transaction report of the original transaction. Thus, the reporting side for a security-based swap that arises as a result of the allocation, termination, novation, or assignment of an existing security-based swap could report the resulting new security-based swap to a registered SDR other than the registered SDR that received the report of the original security-based swap.

VI. Public Dissemination—Rule 902

A. Background

In addition to requiring regulatory reporting of all security-based swaps, Regulation SBSR seeks to implement Congress's mandate for real-time public dissemination of all security-based swaps. Section 13(m)(1)(B) of the Exchange Act authorizes the Commission “to make security-based Start Printed Page 14605swap transaction and pricing data available to the public in such form and at such times as the Commission determines appropriate to enhance price discovery.” [352] Section 13(m)(1)(C) of the Exchange Act [353] authorizes the Commission to provide by rule for the public availability of security-based swap transaction, volume, and pricing data as follows:

(1) With respect to those security-based swaps that are subject to the mandatory clearing requirement described in Section 3C(a)(1) of the Exchange Act (including those security-based swaps that are excepted from the requirement pursuant to Section 3C(g) of the Exchange Act),[354] the Commission shall require real-time public reporting for such transactions; [355]

(2) With respect to those security-based swaps that are not subject to the mandatory clearing requirement described in Section 3C(a)(1) of the Exchange Act, but are cleared at a registered clearing agency, the Commission shall require real-time public reporting for such transactions;

(3) With respect to security-based swaps that are not cleared at a registered clearing agency and which are reported to a SDR or the Commission under Section 3C(a)(6),[356] the Commission shall require real-time public reporting for such transactions, in a manner that does not disclose the business transactions and market positions of any person; and

(4) With respect to security-based swaps that are determined to be required to be cleared under Section 3C(b) of the Exchange Act but are not cleared, the Commission shall require real-time public reporting for such transactions.[357]

Furthermore, Section 13(m)(1)(D) of the Exchange Act [358] authorizes the Commission to require registered entities (such as registered SDRs) to publicly disseminate the security-based swap transaction and pricing data required to be reported under Section 13(m) of the Exchange Act. Finally, Section 13(n)(5)(D)(ii) of the Exchange Act [359] requires SDRs to provide security-based swap information “in such form and at such frequency as the Commission may require to comply with public reporting requirements.”

In view of these statutory provisions, the Commission proposed Rule 902—Public Dissemination of Transaction Reports. In the Regulation SBSR Proposing Release, the Commission expressed its belief that the best approach would be to require market participants to report transaction information to a registered SDR and require registered SDRs to disseminate that information to the public.[360] Many commenters expressed general support for public dissemination of security-based swap information.[361] In addition, as discussed more fully below, the Commission received a large number of comments addressing specific aspects of public dissemination of transaction reports.[362]

The current market for security-based swaps is opaque. Dealers know about order flow that they execute, and may know about other dealers' transactions in certain instances, but information about executed transactions is not widespread. Market participants—particularly non-dealers—have to rely primarily on their understanding of the market's fundamentals to arrive at a price at which they would be willing to assume risk. The Commission believes that, by reducing information asymmetries between dealers and non-dealers and providing more equal access to all post-trade information in the security-based swap market, post-trade transparency could help reduce implicit transaction costs and promote greater price efficiency.[363] The availability of post-trade information also could encourage existing market participants to increase their activity in the market and encourage new participants to join the market—and, if so, increase liquidity and competition in the security-based swap market. In addition, all market participants will have more comprehensive information with which to make trading and valuation determinations.

Security-based swaps are complex derivative products, and there is no single accepted way to model a security-based swap for pricing purposes. The Commission believes that post-trade pricing and volume information will allow valuation models to be adjusted to reflect how other market participants have valued a security-based swap product at a specific moment in time. Public dissemination of last-sale Start Printed Page 14606information also will aid dealers in deriving better quotations, because they will know the prices at which other market participants have traded. Last-sale information also will aid end users and other non-registered entities in evaluating current quotations by allowing them to request additional information if a dealer's quote differs from the prices of the most recent transactions. Furthermore, smaller market participants that view last-sale information will be able to test whether quotations offered by dealers before the last sale were close to the price at which the last sale was executed. In this manner, post-trade transparency will promote price competition and more efficient price discovery in the security-based swap market.

The Commission is adopting Rule 902 with certain modifications and technical changes discussed in more detail below. Final Rule 902(a) sets forth the basic duty of a registered SDR to publicly disseminate transaction reports. Final Rule 902(c) sets forth certain types of security-based swaps and certain other information about security-based swaps that a registered SDR shall not publicly disseminate. Final Rule 902(d), the so-called “Embargo Rule,” is designed to promote fair access to information about executed security-based swaps.[364]

Rule 902(b), as proposed and re-proposed, would have established a mechanism for registered SDRs to publicly disseminate transaction reports of block trades. As discussed in more detail in Section VII, infra, the Commission is not adopting thresholds for determining what constitutes a block trade. Accordingly, the Commission believes that it is not necessary or appropriate at this time to adopt rules specifically addressing the public dissemination of block trades.

B. Registered SDR's Duty To Disseminate—Rule 902(a)

Rule 902(a), as proposed and re-proposed, would have required a registered SDR to publicly disseminate a transaction report of any security-based swap immediately upon receipt of transaction information about the security-based swap, except in the case of a block trade.[365] Further, Rule 902(a), as initially proposed, provided that the transaction report would consist of “all the information reported by the reporting party pursuant to § 242.901, plus any indicator or indicators contemplated by the registered security-based swap data repository's policies and procedures that are required by § 242.907.” Rule 902(a) was revised and re-proposed as part of the Cross-Border Proposing Release to add that a registered SDR would not have an obligation to publicly disseminate certain types of cross-border security-based swaps that are required to be reported but not publicly disseminated.[366]

Commenters generally were supportive of the Commission's approach of requiring registered SDRs to be responsible for public dissemination of security-based swap transaction reports.[367] One commenter, for example, stated that allowing other types of entities to have the regulatory duty to disseminate data could lead to undue complications for market participants.[368] In addition, the commenter expressed the view that real-time public dissemination of security-based swap data is a “core function” of registered SDRs, and that permitting only registered SDRs to publicly disseminate security-based swap data would help to assure the accuracy and completeness of the data.[369] However, one commenter appeared to recommend that a clearing agency should be responsible for public dissemination of “relevant pricing data for a security-based swap subject to clearing.” [370]

The Commission has carefully analyzed the comments and is adopting the approach of requiring public dissemination through registered SDRs. The Commission believes that this approach will promote efficiency in the security-based swap market, or at least limit inefficiency.[371] Section 13(m)(1)(G) of the Exchange Act [372] provides that “[e]ach security-based swap (whether cleared or uncleared) shall be reported to a registered security-based swap data repository.” Thus, security-based swaps would have to be reported to registered SDRs regardless of the mechanism that the Commission chooses for public dissemination. By requiring registered SDRs to carry out the task of public dissemination, the Commission will not require reporting steps beyond those already required by the Exchange Act. Furthermore, the Commission believes that assigning registered SDRs the duty to publicly disseminate will help promote efficiency and consistency of post-trade information. Market observers will not have to obtain market data from potentially several other sources—such as SB SEFs, clearing agencies, or the counterparties themselves—to have a full view of security-based swap market activity.

1. Format of Disseminated Data

In the Regulation SBSR Proposing Release, the Commission acknowledged that multiple uniquely formatted data feeds could impair the ability of market participants to receive, understand, or compare security-based swap transaction data and thus undermine its value.[373] Furthermore, the Commission suggested that one way to address that issue would be to dictate the exact format and mode of providing required security-based swap data to the public, while acknowledging various problems with that approach.[374] The Commission proposed, however, to identify in proposed Rules 901(c) and 901(d) the categories of information that would be required to be reported, and to require registered SDRs to establish and maintain policies and procedures that, among other things, would specify the data elements that would be required to be reported.[375] The Commission preliminarily believed that this approach would promote the reporting of uniform, material information for each security-based swap, while providing flexibility to account for Start Printed Page 14607changes to the security-based swap market over time.[376]

Two commenters generally supported the Commission's approach of providing registered SDRs with the flexibility to define the relevant data fields.[377] However, one commenter stated that the final rules should clearly identify the data fields that will be publicly disseminated.[378] Another commenter emphasized the importance of presenting security-based swap information in a format that is useful for market participants, and expressed concern that proposed Regulation SBSR did “nothing to ensure that the data amassed by individual SDRs is aggregated and disseminated in a form that is genuinely useful to traders and regulators and on a nondiscriminatory basis.” [379] This commenter further believed that to provide meaningful price discovery, data must be presented in a format that allows market participants to view it in near-real time, fits onto the limited space available on their trading screens, and allows them to view multiple markets simultaneously.[380]

The Commission has carefully considered these comments and continues to believe that it is not necessary or appropriate at this time for the Commission to dictate the format and mode of public dissemination of security-based swap transaction information by registered SDRs. Therefore, Rule 902(a), as adopted, provides registered SDRs with the flexibility to set the format and mode of dissemination through its policies and procedures, as long as the reports of security-based swaps that it publicly disseminates include the information required to be reported by Rule 901(c), plus any “condition flags” contemplated by the registered SDR's policies and procedures under Rule 907.[381] The Commission notes that it anticipates proposing for public comment detailed specifications of acceptable formats and taxonomies that would facilitate an accurate interpretation, aggregation, and analysis by the Commission of security-based swap data submitted to it by an SDR. The Commission intends to maximize the use of any applicable current industry standards for the description of security-based swap data, and build upon such standards to accommodate any additional data fields as may be required.

2. Timing of Public Dissemination

Rule 902(a), as re-proposed, would have required a registered SDR to publicly disseminate a transaction report of a security-based swap immediately upon (1) receipt of information about the security-based swap from a reporting side, or (2) re-opening following a period when the registered SDR was closed, unless the security-based swap was a block trade or a cross-border security-based swap that was required to be reported but not publicly disseminated. One commenter agreed with the proposed requirement, stating that reported security-based swap transaction information “should be made available on a non-delayed basis to the public, media, and data vendors.” [382]

The Commission is adopting the requirement contained in Rule 902(a), as re-proposed, that a registered SDR must disseminate a transaction report of a security-based swap “immediately upon receipt of information about the security-based swap, or upon re-opening following a period when the registered security-based swap data repository was closed.” [383] “Immediately,” as used in this context, implies a wholly automated process to accept the incoming information, process the information to assure that only information required to be disseminated is disseminated, and disseminate a trade report through electronic means.

3. Dissemination of Life Cycle Events

Rule 902(a), as adopted, provides that, in addition to transaction reports of security-based swaps, a registered SDR “shall publicly disseminate . . . a life cycle event or adjustment due to a life cycle event.” Rule 902(a), as proposed and re-proposed, did not specifically refer to such information, but, as noted in the Regulation SBSR Proposing Release, proposed Rule 907(a)(4) would have required a registered SDR to “establish and maintain written policies and procedures describing how reporting parties shall report—and, consistent with the enhancement of price discovery, how the registered SDR shall publicly disseminate—reports of, and adjustments due to, life cycle events.” [384] One commenter argued that the Commission should limit public dissemination to new trading activity and should exclude maintenance or life cycle events.[385] The Commission disagrees, and believes instead that, if information about a security-based swap is publicly disseminated but subsequently one or more of the disseminated data elements is revised due to a life cycle event (or an adjustment due to a life cycle event), the revised information would provide market observers a more accurate understanding of the market. The Commission, therefore, is clarifying Rule 902(a) to make clear the requirement to disseminate life cycle events. Final Rule 902(a) provides, in relevant part, that a registered SDR “shall publicly disseminate a transaction report of the security-based swap or a life cycle event or adjustment due to a life cycle event immediately upon receipt.” [386]

4. Correction of Minor Drafting Error

Rule 902(a), as initially proposed and re-proposed, provided that the transaction report that is publicly disseminated “shall consist of all the information reported pursuant to Rule 901, plus any indicator or indicators contemplated by the registered security-based swap data repository's policies and procedures that are required by Rule 907” (emphasis added). However, in the Regulation SBSR Proposing Release, the Commission specified that the transaction report that is disseminated should consist of all the information reported pursuant to Rule Start Printed Page 14608901(c).[387] The statement from the preamble of the Regulation SBSR Proposing Release is correct. The Commission did not intend for all of the information reported pursuant to Rule 901 to be publicly disseminated;[388]  this would include, for example, regulatory data reported pursuant to Rule 901(d) and information about historical security-based swaps reported pursuant to Rule 901(i). The Commission is correcting this drafting error so that final Rule 902(a) explicitly states that the “transaction report shall consist of all the information reported pursuant to § 242.901(c), plus any condition flags contemplated by the registered security-based swap data repository's policies and procedures that are required by § 242.907” (emphasis added).

5. Use of Agents by a Registered SDR To Carry Out the Public Dissemination Function

One commenter discussed the appropriateness of third-party service providers carrying out the public dissemination function on behalf of registered SDRs.[389] The Commission believes that, in the same way that reporting sides may engage third-party agents to report transactions on their behalf, registered SDRs may engage third-party providers to carry out the public dissemination function on their behalf. In both cases, the entity with the legal duty would remain responsible for compliance with Regulation SBSR if its agent failed to carry out the function in a manner stipulated by Regulation SBSR. Thus, reporting sides and registered SDRs should engage only providers that have the capacity and reliability to carry out those duties.

C. Definition of “Publicly Disseminate”

In the Regulation SBSR Proposing Release, the Commission defined “publicly disseminate” in Rule 900 to mean “to make available through the Internet or other electronic data feed that is widely accessible and in machine-readable electronic format.” The Commission re-proposed this definition renumbering it Rule 900(y), in the Cross-Border Proposing Release.

The Commission received no comment letters directly discussing the proposed definition, although as noted above many commenters commented on various other aspects of public dissemination, including the format of disseminated data [390] and timing of public dissemination.[391] The Commission is adopting the definition of “publicly disseminate” as proposed and re-proposed. The Commission continues to believe that, to satisfy the statutory mandate for public dissemination, security-based swap transaction data must be widely accessible in a machine-readable electronic format. These data are too numerous and complex for direct human consumption and thus will have practical use only if they can be downloaded and read by computers. The definition of “publicly disseminate” recognizes the Internet as one, but not the only, possible electronic medium to make these data available to the public.

D. Exclusions From Public Dissemination—Rule 902(c)

1. Discussion of Final Rule

Rule 902(c), as proposed and re-proposed, set forth three kinds of information that a registered SDR would be prohibited from disseminating. First, in Rule 902(c)(1), the Commission proposed that a registered SDR would be prohibited from disseminating the identity of any counterparty to a security-based swap. This would implement Section 13(m)(1)(E)(i) of the Exchange Act,[392] which requires the Commission's rule providing for the public dissemination of security-based swap transaction and pricing information to ensure that “such information does not identify the participants.” The Commission received three comments that generally urged the Commission to ensure the anonymity of security-based swap counterparties, either through non-dissemination of the identity of any counterparty or by limiting public dissemination of other data elements they believed could lead to disclosure of counterparties' identities.[393] To address the commenters' concerns, the Commission is adopting Rule 902(c)(1) as proposed and re-proposed, with one conforming change.[394] Final Rule 902(c)(1) explicitly prohibits a registered SDR from disseminating the identity of any counterparty. Further, Rule 902(a) explicitly provides for the public dissemination of a transaction report that consists only of “the information reported pursuant to § 242.901(c), plus any condition flags contemplated by the registered security-based swap data repository's policies and procedures that are required by § 242.907.” Limiting the publicly disseminated trade report to these specific data elements is designed to further avoid disclosure of any counterparty's identity, including the counterparty ID of a counterparty, even in thinly-traded markets.[395]

Second, the Commission proposed in Rule 902(c)(2) that, with respect to a security-based swap that is not cleared at a clearing agency and that is reported to a registered SDR, a registered SDR would be prohibited from disseminating any information disclosing the business transactions and market positions of any person. This would implement Section 13(m)(1)(C)(iii) of the Exchange Act,[396] which provides that, with respect to the security-based swaps that are not cleared and which are reported to an SDR or the Commission, “the Commission shall require real-time public reporting . . . in a manner that does not disclose the business transactions and market positions of any person.” The Commission received no comments that directly addressed proposed Rule 902(c)(2), although one commenter noted that “all market participants have legitimate interests in the protection of their confidential and identifying financial information.” [397] By prohibiting a registered SDR from disseminating any information disclosing the business transactions and market positions of any person, the Commission believes that Rule 902(c)(2) will help preserve the confidential information of market participants, in Start Printed Page 14609addition to implementing Section 13(m)(1)(C)(iii) of the Exchange Act. Accordingly, the Commission is adopting Rule 902(c)(2) as proposed and re-proposed.

Third, the Commission preliminarily believed that it would be impractical and unnecessary for a registered SDR to publicly disseminate reports of historical security-based swaps reported pursuant to Rule 901(i), and therefore included this exclusion in proposed Rule 902(c)(3).[398] The Commission received no comments regarding proposed Rule 902(c)(3). The Commission continues to believe that it would be impractical for a registered SDR to publicly disseminate reports of historical security-based swaps reported pursuant to Rule 901(i). Accordingly, the Commission is adopting Rule 902(c)(3) as proposed and re-proposed.

The Commission calls particular attention to the relationship between Rules 901(i), 901(e), and 902. Rule 901(i) requires reporting of historical security-based swaps to a registered SDR. Rule 902(c)(3) provides that the initial transaction reported pursuant to Rule 901(i) shall not be publicly disseminated. A historical security-based swap might remain open after market participants are required to begin complying with the requirement in Rule 901(e) to report life cycle events.[399] If a life cycle event of a historical security-based swap relating to any of the primary trade information—i.e., the data elements enumerated in Rule 901(c)—occurs after public dissemination is required for security-based swaps in a particular asset class, Rule 902(a) would require the registered SDR to publicly disseminate a report of that life cycle event, plus any condition flags required by the registered SDR's policies and procedures under Rule 907. In other words, Rule 902(c)(3)'s exclusion from public dissemination for historical security-based swaps applies only to the initial transaction, not to any life cycle event of that historical security-based swap relating to the primary trade information that occurs after public dissemination in that asset class is required. Therefore, life cycle events relating to the primary trade information of historical security-based swaps must, after the public dissemination requirement goes into effect, be publicly disseminated.[400]

At the same time, correcting an error in the Rule 901(c) information relating to a historical security-based swap would not trigger public dissemination of a corrected report. Rule 905 applies to all information reported pursuant to Regulation SBSR, including historical security-based swaps that must be reported pursuant to Rule 901(i). Rule 905(b)(2) requires the registered SDR to publicly disseminate a correction of a transaction only if the corrected information falls within Rule 901(c) and the transaction previously was subject to a public dissemination requirement. Historical security-based swaps are not subject to the public dissemination requirement; therefore, corrections to Rule 901(c) information in historical security-based swaps are not subject to public dissemination either.

Rule 902(a), as proposed, would have provided that a registered SDR shall publicly disseminate a transaction report of a security-based swap reported to it, “[e]xcept in the case of a block trade.” Rule 902(a), as re-proposed, would have retained the exception for block trades and added a second exception, for “a trade that is required to be reported but not publicly disseminated.” [401] In final Regulation SBSR, the Commission is revising Rules 902(a) and 902(c) to consolidate into a single rule—Rule 902(c)—all the types of security-based swaps and the kinds of information that a registered SDR is prohibited from disseminating. Therefore, Rule 902(a), as adopted, now provides that a registered SDR shall publicly disseminate a transaction report of a security-based swap “except as provided in paragraph (c) of this section.”

In addition to adopting subparagraphs (1), (2), and (3) of Rule 902(c), as proposed and re-proposed, the Commission is modifying Rule 902(c) to expand the number of exclusions from public dissemination from three to seven. First, the Commission is adding Rule 902(c)(4), which prohibits a registered SDR from disseminating a non-mandatory report, and is adding a new Rule 900(r) to define “non-mandatory report” as any information provided to a registered SDR by or on behalf of a counterparty other than as required by Regulation SBSR. Situations may arise when the same transaction may be reported to two separate registered SDRs. This could happen, for example, if the reporting side reports a transaction to one registered SDR, as required by Rule 901, but the other side elects to submit the same transaction information to a second registered SDR. The Commission has determined that any non-mandatory report should be excluded from public dissemination because the mandatory report of that transaction will have already been disseminated, and the Commission seeks to avoid distorting the market by having two public reports issued for the same transaction.[402]

Second, the Commission is adding Rule 902(c)(5), which prohibits a registered SDR from disseminating any information regarding a security-based swap that is subject to regulatory reporting but not public dissemination under final Rule 908(a) of Regulation SBSR.[403] Rule 902(a), as re-proposed, would have prohibited a registered SDR from publicly disseminating information concerning a cross-border security-based swap that is required to be reported but not publicly disseminated. The Commission received no comments on this specific provision, and is relocating it from re-proposed Rule 902(a) to final Rule 902(c)(5). Rule 902(c)(5), as adopted, will prohibit a registered SDR from disseminating “[a]ny information regarding a security-based swap that is required to be reported pursuant to §§ 242.901 and 242.908(a)(1) but is not required to be publicly disseminated pursuant to § 242.908(a)(2).”

Third, the Commission is adding Rule 902(c)(6), which prohibits a registered SDR from disseminating any information regarding certain types of clearing transactions.[404] Regulation SBSR, as proposed and re-proposed, did not provide any exemption from public dissemination for clearing transactions. However, the Commission has determined that publicly disseminating reports of clearing transactions that arise from the acceptance of a security-based swap for clearing by a registered clearing agency or that result from netting other clearing transactions would be unlikely to further Title VII's transparency objectives. Any security-based swap transaction, such as an Start Printed Page 14610alpha, that precedes a clearing transaction must be publicly disseminated. Clearing transactions, such as the beta and the gamma, that result from clearing a security-based swap or from netting clearing transactions together do not have price discovery value because they are mechanical steps taken pursuant to the rules of the clearing agency. Therefore, the Commission believes that non-dissemination of these clearing transactions is appropriate in the public interest and consistent with the protection of investors.

Fourth, the Commission is adding Rule 902(c)(7), which prohibits a registered SDR from disseminating any information regarding the allocation of a security-based swap. As discussed in more detail in Section VIII, infra, the Commission has determined that, to comply with this prohibition, a registered SDR will satisfy its public dissemination obligations for a security-based swap involving allocation by disseminating only the aggregate notional amount of the executed bunched order that is subsequently allocated. The Commission believes that this is an appropriate means of public dissemination, because the price and size of the executed bunched order were negotiated as if the transaction were a single large trade, rather than as individual smaller trades. In the Commission's view, public dissemination of the allocations would not enhance price discovery because the allocations are not individually negotiated.[405] Furthermore, although the Commission has taken the approach in other situations of requiring public dissemination of the transaction but with a condition flag to explain the special circumstances related to the transaction,[406] for the reasons stated above, the Commission does not believe that this approach is appropriate here. Rule 902(c)(7)'s exception to public dissemination for the individual allocations also is designed to address commenter concerns that publicly disseminating the sizes of individual allocations could reveal the identities or business strategies of fund groups that execute trades on behalf of multiple client funds.[407] For similar reasons, Rule 902(c)(7), as adopted, prohibits a registered SDR from publicly disseminating the fact that an initial security-based swap has been terminated and replaced with several smaller security-based swaps as part of the allocation process.[408] The Commission believes that any marginal benefit of publicly disseminating this type of termination event would not be justified by the potential risk to the identity or business strategies of fund groups that execute trades on behalf of multiple client funds.[409]

Registered SDRs will need to rely on the information provided by reporting sides to determine whether Rule 902(c) excludes a particular report from public dissemination. As described in more detail in Section VI(G), Rule 907(a)(4)(iv) requires a registered SDR, among other things, to establish and maintain written policies and procedures directing its participants to apply to the transaction report a condition flag designated by the registered SDR to indicate when the report of a transaction covered by Rule 902(c) should not be publicly disseminated.[410] A registered SDR would not be liable for a violation of Rule 902(c) if it disseminated a report of a transaction that fell within Rule 902(c) if the reporting side for that transaction failed to appropriately flag the transaction as required by Rule 907(a)(4).

2. Other Exclusions From Public Dissemination Sought by Commenters

Several commenters advanced arguments against public dissemination of various types of security-based swaps. The Commission notes at the outset that the statutory provisions that require public dissemination of security-based swap transactions state that all security-based swaps shall be publicly disseminated.

a. Customized Security-Based Swaps

Several commenters expressed the view that transaction information regarding customized security-based swaps should not be publicly disseminated because doing so would not enhance price discovery, would be of limited use to the public, or could be confusing or misleading to market observers.[411] However, one commenter urged the Commission to require public dissemination of all of the information necessary to calculate the price of a customized security-based swap.[412]

Section 13(m)(1)(C) of the Exchange Act[413] authorizes the Commission to provide by rule for the public availability of security-based swap transaction, volume, and pricing data for four types of security-based swaps, which together comprise the complete universe of potential security-based swaps. With respect to “security-based swaps that are not cleared at a registered clearing agency and which are reported to a security-based swap data repository”—which category would include customized or bespoke security-Start Printed Page 14611based swaps—Section 13(m)(1)(C) provides that “the Commission shall require real-time public reporting for such transactions, in a manner that does not disclose the business transactions and market positions of any person” (emphasis added).

The Commission does not believe that the commenters who argued against disseminating reports of bespoke transactions have provided sufficient justification for an exception to public dissemination. To the contrary, the Commission believes that dissemination of transaction reports of customized security-based swaps could still provide useful information to market observers. Although all of the material elements of a bespoke transaction necessary to understand the market value might not be publicly disseminated, it is an overstatement to argue categorically that bespoke transactions would have no price discovery value, as certain commenters suggested.[414] The disseminated price could, for example, still have an anchoring effect on price expectations for future negotiations in similar or related products, even in thinly-traded markets. Furthermore, even if it is difficult to compare price data across customized transactions, by disseminating reports of all bespoke transactions, market observers can understand the relative number and aggregate notional amounts of transactions in bespoke products versus standardized products.

The Commission recognizes, however, that market observers should have information that permits them to readily distinguish transactions in standardized products from transactions in bespoke security-based swaps. Accordingly, Rule 901(c)(1)(v) provides that, when reporting a transaction to a registered SDR, the reporting side must attach a flag to indicate whether a security-based swap is customized to the extent that the other information provided pursuant to Rule 901(c) does not provide all of the material information necessary to identify the security-based swap or does not contain the data elements necessary to calculate the price of the security-based swap. In addition, final Rule 907(a)(4) requires a registered SDR to establish policies and procedures concerning the use of appropriate flags on disseminated transaction reports that are designed to assist market observers in interpreting the relevance of a transaction.

b. Inter-Affiliate Transactions

Several commenters argued that the Commission should not require public dissemination of inter-affiliate security-based swaps. Issues relating to regulatory reporting and public dissemination of inter-affiliate transactions are discussed in Section IX, infra.

c. Security-Based Swaps Entered Into in Connection With a Clearing Member's Default

One commenter argued that reports of security-based swaps effected in connection with a clearing agency's default management processes following the default of a clearing member should not be publicly disseminated in real time.[415] This commenter believed that public dissemination of these transactions could undermine a clearing agency's default management processes and have a negative effect on market stability, particularly because a default likely would occur during stressed market conditions. Accordingly, the commenter recommended that reports of security-based swaps entered into in connection with a clearing agency's default management processes be made available to the Commission in real time but not publicly disseminated until after the default management processes have been completed, as the Commission determines appropriate.

The Commission believes that, at present, the commenter's concerns are addressed by the Commission's approach for the interim phase of Regulation SBSR, which offers reporting sides up to 24 hours after the time of execution to report a security-based swap.[416] The Commission believes that this approach strikes an appropriate balance between promoting post-trade transparency and facilitating the default management process, and is broadly consistent with the commenter's suggestion to allow for public dissemination after the default management process has been completed. Further, the commenter suggested that such transactions typically occur in large size; thus, transactions entered into by surviving clearing members might qualify for any block exception, if the Commission were to promulgate such an exception in the future. The Commission intends to revisit the commenter's concern in connection with its consideration of block thresholds and other potential rules relating to block trades.

d. Total Return Security-Based Swaps

Three commenters argued that there should be no public dissemination of total return security-based swaps (“TRSs”), which offer risks and returns proportional to a position in a security, securities, or loan(s) on which a TRS is based.[417] One of these commenters argued that “TRS pricing information is of no value to the market because it is driven by many considerations including the funding levels of the counterparties to the TRS and therefore may not provide information about the underlying asset for the TRS.” [418] Another commenter suggested that the fact that TRSs are hedged in the cash market, where trades are publicly disseminated, would mitigate the incremental price discovery benefit of public dissemination of the TRSs.[419] Similarly, a third commenter argued that requiring public dissemination of an equity TRS transaction would not enhance transparency, and could confuse market participants, because the hedging transactions are already publicly disseminated.[420]

The Commission has carefully considered these comments but believes that these commenters have not provided sufficient justification to support a blanket exclusion from public dissemination for TRSs. The Commission believes, rather, that market observers should be given an opportunity to decide how to interpret the relevance of a disseminated trade to the state of the market, and reiterates that relevant statutory provisions state that all security-based swaps shall be publicly disseminated. These statutory provisions do not by their terms distinguish such public dissemination Start Printed Page 14612based on particular characteristics of a security-based swap.

The Commission also has considered the argument advanced by one of the commenters that requiring instantaneous public dissemination of an equity TRS transaction could confuse market participants, because the hedging transactions are already publicly disseminated.[421] The Commission disagrees that dissemination of both transactions (i.e., the initial transaction and the hedge) would cause confusion. In other securities markets, public dissemination of initial transactions and their hedges occur on a regular basis.[422] Valuable information could be obtained by observing whether transactions in related products executed close in time have the same or different prices.[423] The commenter who expressed concerns about potential negative consequences of reduced liquidity in the equity TRS market provided no evidence to support its claim.[424]

e. Transactions Resulting From Portfolio Compression

One group of commenters argued that transactions resulting from portfolio compression exercises do not reflect trading activity, contain no market information, and thus should be excluded from public dissemination.[425] One member of that group requested clarification that only trades representing the end result of a netting or compression would need to be reported. This commenter expressed the view that publicly disseminating original transactions as well as the transactions that result from netting or compression would result in double-counting and could present a distorted view of the market.[426]

The Commission recognizes that portfolio compression is designed to mitigate risk between counterparties by reducing gross exposures, and any new security-based swaps executed as a result reflect existing net exposures and might not afford market participants an opportunity to negotiate new terms. Nevertheless, there may be some value in allowing market observers to see how often portfolio compressions occur and how much net exposure is left after much of the gross exposure is terminated. Furthermore, it is possible that new positions arising from a compression exercise could be repriced, and thus offer new and useful pricing information to market observers. Therefore, the Commission is not convinced that there would be so little value in disseminating such transactions that they all should be excluded from public dissemination, even though the original transactions that are netted or compressed may previously have been publicly disseminated. With respect to the commenter's concern regarding double-counting, the Commission notes that Rule 907(a)(4) requires a registered SDR to have policies and procedures for flagging special circumstances surrounding certain transactions, which could include transactions resulting from portfolio compression. The Commission believes that market observers should have the ability to assess reports of transactions resulting from portfolio compressions, and that a condition flag identifying a transaction as the result of a portfolio compression exercise would help to avoid double-counting.

f. Thinly Traded Products

Three commenters expressed concern about the potential impact of real-time public dissemination on thinly traded products.[427] One of these commenters suggested that “security-based swaps traded by fewer than ten market makers per month should be treated as illiquid and subject to public reporting only on a weekly basis.” [428] The Commission disagrees with this suggestion. In other classes of securities—e.g., listed equity securities, OTC equity securities, listed options, corporate bonds, municipal bonds—all transactions are disseminated in real time, and there is no delayed reporting for products that have only a limited number of market makers. The Commission is not aware of characteristics of the security-based swap market that are sufficiently different from those other markets to warrant delayed reporting because of the number of market makers. Furthermore, given the high degree of concentration in the U.S. security-based swap market, many products have fewer than ten market makers. Thus, the commenter's suggestion—if accepted by the Commission—could result in delayed reporting for a substantial percentage of security-based swap transactions, which would run counter to Title VII's goal of having real-time public dissemination for all security-based swaps (except for block trades). Finally, as noted above, the Title VII provisions that mandate public dissemination on a real-time basis do not make any exception for security-based swaps based on the number of market makers.

Another commenter expressed concern that mandating real-time reporting of thinly-traded products and illiquid markets could increase the price of entering into a derivatives contract to hedge risk by facilitating speculative front-running.[429] Another commenter expressed concern about the impact of real-time post-trade transparency for illiquid security-based swaps on pre-trade transparency that currently exists in the form of indicative prices provided by dealers to their clients (known as “runs”).[430] This commenter requested that the Commission provide illiquid security-based swaps with an exception from real-time reporting and instead allow for delays roughly commensurate with the trading frequency of the security-based swap.[431] Under the adopted rules, counterparties generally will have up to 24 hours after the time of execution to report security-based swap transactions. This reporting timeframe is designed, in part, to minimize the potential for market disruption resulting from public dissemination of any security-based swap transaction during the interim phase of Regulation SBSR. The Commission anticipates that, during the interim period, it will collect and analyze data concerning the sizes of transactions that potentially affect liquidity in different segments of the market in connection with considering block thresholds.

Start Printed Page 14613

E. Dissemination of Block Transactions—Rule 902(b)

Rule 902(b), as proposed and re-proposed, would have required a registered SDR to publicly disseminate a transaction report for a block trade (except for the notional amount of the transaction) immediately upon receipt of the information about the block trade from the reporting party, along with the transaction ID and an indicator that the report represented a block trade. Rule 902(b) would further have required the registered SDR to disseminate a complete transaction report for the block trade, including the full notional amount of the transaction, within specified timeframes ranging from eight to 26 hours after execution, depending on the time when the security-based swap was executed. Thus, under Rule 902(b), as proposed and re-proposed, market participants would learn the price of a security-based swap block trade in real time, and would learn the full notional amount of the transaction on a delayed basis.[432]

For the reasons discussed in detail in Section VII(B), infra, the Commission is not adopting Rule 902(b).

F. The Embargo Rule—Rule 902(d)

Rule 902(d), as proposed, would have provided that “[n]o person other than a registered security-based swap data repository shall make available to one or more persons (other than a counterparty) transaction information relating to a security-based swap before the earlier of 15 minutes after the time of execution of the security-based swap; or the time that a registered security-based swap data repository publicly disseminates a report of that security-based swap.” In other words, the information about the security-based swap transaction would be “embargoed” until a registered SDR has in fact publicly disseminated a report of the transaction (or until such time as a transaction should have been publicly disseminated). Rule 902(d) is also referred to as the “Embargo Rule.” Rule 902(d) was not revised as part of the Cross-Border Proposing Release, and was re-proposed in exactly the same form as had been initially proposed.

Under Regulation SBSR, only registered SDRs must publicly disseminate security-based swap transaction data to the public. However, other persons with knowledge of a transaction—the counterparties themselves or the venue on which a transaction is executed—also might wish to disclose information about the transaction to third parties (whether for commercial benefit or otherwise). An unfair competitive advantage could result if some market participants could obtain security-based swap transaction information before others. Regulation SBSR, by carrying out the Congressional mandate to publicly disseminate all security-based swap transactions, is intended to reduce information asymmetries in the security-based swap market and to provide all market participants with better information—and better access to information—to make investment decisions. Therefore, the Commission proposed Rule 902(d), which would have imposed a partial and temporary restriction on sources of security-based swap transaction information other than registered SDRs.

Three commenters supported the view that market participants (including SB SEFs) should not be permitted to distribute their security-based swap transaction information before such information is disseminated by a registered SDR.[433] However, three other commenters strongly opposed the proposed Embargo Rule.[434] Other commenters expressed a concern that the proposed Embargo Rule would make it more difficult for SB SEFs to offer “work-up” [435] functionality.[436] This “work-up” process, according to one of the commenters, is designed to foster liquidity in the security-based swap market and to facilitate the execution of larger-sized transactions.[437]

The Commission has carefully reviewed the comments received and has determined to revise the Embargo Rule to provide that the act of sending a report to a registered SDR—not the act of the registered SDR actually disseminating it—releases the embargo. Rule 902(d), as adopted, provides: “No person shall make available to one or more persons (other than a counterparty or a post-trade processor) transaction information relating to a security-based swap before the primary trade information about the security-based swap is sent to a registered security-based swap data repository” (emphasis added).

The Commission agrees with the majority of commenters that it would be beneficial for security-based swap market participants to have the ability to disseminate and receive transaction data without being constrained by the time when a registered SDR disseminates the transaction information. The Commission understands that, in some cases, entities that are likely to become SB SEFs may want to broadcast trades executed electronically across their platforms to all subscribers, because knowing that two counterparties have executed a trade at a particular price can, in some cases, catalyze trading by other counterparties at the same price. Allowing dissemination of transaction information to occur simultaneously Start Printed Page 14614with transmission to a registered SDR will allow SB SEF participants to see last-sale information for the particular markets on which they are trading, which could facilitate the work-up process and thus enhance price discovery.

One commenter expressed concern, however, that permitting the distribution of market data prior to dissemination of the information by a registered SDR could result in the development of a two-tier market.[438] Although the Commission generally shares the commenter's concern about information asymmetries, the Commission does not believe that Rule 902(d), as adopted, raises that concern. Certain market participants might learn of a completed transaction before others who rely on public dissemination through a registered SDR. However, the time lag is likely to be very small because Rule 902(a) requires a registered SDR to publicly disseminate a transaction report “immediately upon receipt of information about the security-based swap.” The Commission understands that, under the current market structure, trading in security-based swaps occurs for the most part manually (rather than through algorithmic means) and infrequently. Thus, obtaining knowledge of a completed transaction through private means a short time before others learn of the transaction from a registered SDR is unlikely, for the foreseeable future, to provide a significant advantage. Furthermore, as discussed above regarding the “work-up” process, the most likely recipients of direct information about the completed transaction are other participants of the SB SEF. Thus, an important segment of the market—i.e., competitors of the counterparties to the original transaction in the work up who are most likely to have an interest in trading the same or similar products—are still benefitting from post-trade transparency, even if it comes via the work-up process on the SB SEF rather than through a registered SDR.

Two commenters raised arguments related to the ownership of the security-based swap transaction data and were concerned that the proposed Embargo Rule would place improper restrictions on the use of security-based swap market data.[439] One of these commenters recommended that the Commission revise the Embargo Rule “in such a way that . . . the security-based swap counterparties and SB SEFs [would] continue to have the ability to market and commercialize their own proprietary data.” [440] The other commenter recommended that the Commission make clear that nothing in the final rules is intended “to impose or imply any limit on the ability of market participants . . . to use and/or commercialize data they create or receive in connection with the execution or reporting of swap data.” [441]

The Commission declines to revise Rule 902(d) in the manner suggested by these commenters. As the Commission notes in the SDR Adopting Release, “the issue of who owns the data is not particularly clear cut, particularly when value is added to it.” [442] If the Commission were to revise the rule in the manner suggested by commenters, it would seem to make a presumption about who owns the data, which may be viewed as the Commission favoring one business model over another. As further noted in the SDR Adopting Release, the Commission does not support any particular business model [443] and, therefore, does not believe it is necessary or appropriate to revise the rule as suggested by these commenters.

As originally proposed, the Embargo Rule had an exception for disseminating the transaction information to counterparties, as the counterparties to the transaction should be allowed to receive information about their own security-based swap transactions irrespective of whether such information has been reported to or disseminated by a registered SDR. However, two commenters noted that SB SEFs also will need to provide transaction data to entities involved in post-trade processing, irrespective of whether the embargo has been lifted.[444] The Commission recognizes that, after a trade is executed, there are certain entities that perform post-trade services—such as matching, confirmation, and reporting—that may need to receive the transaction information before it is sent to a registered SDR. For example, a third party could not act as agent in reporting a transaction to a registered SDR on behalf of a reporting side if it could not receive information about the executed transaction before it was submitted to the registered SDR. In the Regulation SBSR Proposing Release, the Commission stated that counterparties to a security-based swap could rely on agents to report security-based swap data on their behalf.[445] Without an exception, such use of agents could be impeded, an action the Commission did not intend. Accordingly, the Commission is revising the Embargo Rule to add an explicit exception for “post-trade processors.” The Commission is also adding a new paragraph (x) to final Rule 900, which defines “post-trade processor” as “any person that provides affirmation, confirmation, matching, reporting, or clearing services for a security-based swap transaction.”

Finally, one commenter recommended a carve-out from Rule 902(d) not only for counterparties, but also for their affiliates, “to allow for internal communication of SBS data.” [446] Rule 902(d)—as proposed, re-proposed, and adopted—includes a carve-out for counterparties, which could include affiliates, to the extent that an affiliate is an indirect counterparty as defined in Rule 900. The Commission continues to believe that it is necessary for counterparties to know when they have executed a trade. The Commission further notes that Rule 902(d), as adopted, contains an exception for post-trade processors,[447] which could include post-trade processors that are affiliates of the counterparties. Thus, Rule 902(d) would not prohibit a counterparty to a security-based swap transaction from providing the transaction information to an affiliate before providing it to a registered SDR, if that affiliate will serve as the counterparty's agent for reporting the transaction to the registered SDR. However, Rule 902—as proposed, re-proposed, and adopted—includes no broad carve-out for all affiliates of the counterparties. The Commission does not see a basis for allowing such a broad Start Printed Page 14615exception for all affiliates, which could undermine the purpose of Rule 902(d), as discussed above.

G. Condition Flags—Rule 907(a)(4)

Rule 907(a)(4), as originally proposed, would have required a registered SDR to establish and maintain written policies and procedures “describing how reporting parties shall report and, consistent with the enhancement of price discovery, how the registered security-based swap depository shall publicly disseminate, reports of, and adjustments due to, life cycle events; security-based swap transactions that do not involve an opportunity to negotiate any material terms, other than the counterparty; and any other security-based swap transactions that, in the estimation of the registered security-based swap data depository, do not accurately reflect the market.” The Commission re-proposed Rule 907(a)(4) in the Cross-Border Proposing Release with only minor technical revisions.[448]

One commenter expressed the view that a registered SDR should have the flexibility to determine and apply special indicators.[449] Another commenter suggested that, to be meaningfully transparent, security-based swap transaction data should include “condition flags” comparable to those used in the bond market.[450] As discussed more fully below, the Commission agrees that such “condition flags” could provide additional transparency to the security-based swap market. The Commission believes that the condition flags that registered SDRs will develop pursuant to final Rule 907(a)(4) could provide information similar to the information provided by the condition flags used in the bond market. The registered SDR's condition flags could include, for example, flags indicating that a security-based swap was an inter-affiliate transaction or a transaction entered into as part of a trade compression.

A third commenter suggested that a registered SDR should not have discretion to determine whether a particular transaction reflects the market, as the registered SDR may not have sufficient information to make such a determination.[451] The Commission agrees with the commenter that a registered SDR may not have sufficient information to ascertain whether a particular transaction “do[es] not accurately reflect the market,” as would have been required under Rule 907(a)(4), as originally proposed. Therefore, the Commission will not require the registered SDR to have policies and procedures for attaching an indicator that merely conveys that the transaction, in the estimation of the registered SDR, does not accurately reflect the market.

Instead, the Commission believes that requiring the registered SDR to provide information about any special circumstances associated with a transaction report could help market observers better understand the report and enhance transparency. For example, Rule 901(c)(1)(v), as adopted, requires a reporting side to attach a flag if a security-based swap is customized to the extent that other information provided for the swap does not provide all of the material information necessary to identify the customized security-based swap or does not contain the data elements necessary to calculate the price.[452] In addition, Rule 905(b)(2), as adopted, requires a registered SDR that receives a correction to information that it previously disseminated publicly to publicly disseminate a corrected transaction report with an indication that the report relates to a previously disseminated transaction.[453]

The Commission, therefore, is adopting Rule 907(a)(4) with certain additional language to respond to the comments and to clarify how Rule 907(a)(4) should apply in circumstances contemplated by but not fully addressed in the original proposal or the re-proposal. The Commission has revised Rule 907(a)(4) as follows: New subparagraph (i) requires the registered SDR to have policies and procedures for “identifying characteristic(s) of a security-based swap, or circumstances associated with the execution or reporting of the security-based swap, that could, in the fair and reasonable estimation of the registered security-based swap data repository, cause a person without knowledge of these characteristic(s) or circumstances to receive a distorted view of the market.” This language retains the idea that the appropriate characteristics or circumstances remain “in the estimation of” the registered SDR, but requires the SDR's exercise of this discretion to be “fair and reasonable” to emphasize that the estimation should not result in flags that would not allow market observers to better understand the transaction reports that are publicly disseminated. Rule 907(a)(4)(i), as adopted, also widens the scope of transactions to which the provision applies.[454] This provision grants a registered SDR the flexibility to determine which special circumstances require flags and to change that determination over time, if warranted.[455] Subparagraph (ii) provides that the registered SDR's policies and procedures must “establish[ ] flags to denote such characteristic(s) or circumstance(s),” explicitly incorporating the concept of condition flags suggested by the commenter.[456] Subparagraph (iii) requires policies and procedures “directing participants to apply such flags, as appropriate, in their reports” to the registered SDR. Finally, subparagraph (iv) requires these policies and procedures to address, in part, “applying such flags to disseminated reports to help to prevent a distorted view of the market.”

The Commission also is adopting Rule 907(a)(4) with certain additional language in subparagraph (iv) that clarifies the handling of security-based swap information that is required to be reported under Rule 901 but which a registered SDR is required by Rule 902(c) not to publicly disseminate. As noted above, even in the initial proposal, the Commission contemplated that certain information would fall into this category.[457] Rule 907(a), as originally proposed, would have required a registered SDR to establish and maintain policies and procedures that addressed, among other things, the public dissemination of security-based swap data. Carrying out that duty in a manner consistent with Rule 902—and, in particular, with Rule 902(c)—will necessarily require a registered SDR to differentiate reported information that is required to be publicly disseminated from reported information that is Start Printed Page 14616required not to be publicly disseminated.[458] The new language in final Rule 907(a)(4)(iv)(B) calls attention to this particular requirement. Rule 907(a)(4)(iv)(B), as adopted, requires the registered SDR to have policies and procedures for suppressing from public dissemination a transaction referenced in Rule 902(c).[459]

In addition to the requirements for indications in the case of error reports or bespoke transactions, the Commission believes that registered SDRs generally should include the following in its list of condition flags:

  • Inter-affiliate security-based swaps. As discussed in detail in Section VI(D), infra, the Commission is not exempting inter-affiliate transactions from public dissemination. However, the Commission believes it could be misleading if market observers did not understand that a transaction involves affiliated counterparties.
  • Transactions resulting from netting or compression exercises.[460] The Commission believes that market observers should be made aware that these transactions are related to previously existing transactions and generally do not represent new risks being assumed by the counterparties.
  • Transactions resulting from a “forced trading session” conducted by a clearing agency.[461] The Commission believes that it would be helpful for market observers to understand that such transactions may not be available to market participants outside of the forced trading session.
  • Transactions reported more than 24 hours after execution. The Commission believes that there is price discovery value in disseminating the transaction report, particularly in cases where there are few or no other recent last-sale reports in that product. However, all market observers should understand that the report is no longer timely and thus may not reflect the current market at the time of dissemination.
  • Transactions resulting from default of a clearing member. The Commission believes that the fact that the transaction was necessitated by a clearing agency's need to have surviving clearing members assume the positions of a defaulting clearing member is important information about understanding the transaction and market conditions generally.
  • Package trades. “Package trade” is a colloquial term for a multi-legged transaction of which a security-based swap constitutes one or more legs. Market observers should be made aware that the reported price of a security-based swap that is part of a package trade might reflect other factors—such as the exchange of an instrument that is not a security-based swap—that are not reflected in the transaction report of the security-based swap itself.

This list is by way of example and not of limitation. There are likely to be other types of transactions or circumstances associated with particular transactions that may warrant a condition flag. The Commission anticipates that each registered SDR will revise its list over time as the security-based swap market evolves and registered SDRs and market participants gain greater insight into how to maximize the effectiveness of publicly disseminated transaction reports.

VII. Block Trades and the Interim Phase of Regulation SBSR

Section 13m(1)(E) of the Exchange Act [462] requires the Commission rule for real-time public dissemination of security-based swap transactions to: (1) “Specify the criteria for determining what constitutes a large notional security-based swap transaction (block trade) for particular markets and contracts” and (2) “specify the appropriate time delay for reporting large notional security-based swap transactions (block trades) to the public.” In addition, Section 13m(1)(E)(iv) of the Exchange Act [463] requires the Commission rule for real-time public dissemination of security-based swap transactions to contain provisions that “take into account whether the public disclosure [of transaction and pricing data for security-based swaps] will materially reduce market liquidity.” [464]

As discussed further below, the Commission is neither proposing nor adopting rules relating to block trades at this time. However, the rules, as adopted, establish an interim phase of Regulation SBSR. During this first phase, as described below, reporting sides—with certain minor exceptions—will have up to 24 hours (“T+24 hours”) after the time of execution to report a transaction. The registered SDR that receives the transaction information would then be required to publicly Start Printed Page 14617disseminate a report of the transaction immediately thereafter.

The Commission recognizes that the introduction of mandated post-trade transparency in the security-based swap market could have a significant impact on market participant behavior and the provision of liquidity. The interim phase is designed, among other things, to generate information about how market participants behave in an environment with post-trade transparency. Furthermore, once the first phase is implemented, reporting sides will be required under Regulation SBSR to report, among other things, the time of execution of their security-based swap transactions. As described in a staff analysis of the inventory management of dealers in the market for single-name CDS based on transaction data from DTCC-TIW, security-based swap transaction data currently stored in DTCC-TIW include the time of reporting, but not the time of the execution.[465] Having the execution time instead of only the reporting time will enable staff to perform a more robust and granular analysis of any hedging that may or may not occur within the first 24-hour period after execution. After collecting and analyzing data that are more granular and reflect the reactions of market participants to T+24 hour post-trade transparency, the Commission anticipates that it will undertake further rulemaking to propose and adopt rules related to block trades and the reporting and public dissemination timeframe for non-block trades.

A. Proposed Rules Regarding Block Trades

The Commission did not propose specific thresholds for block trades in the Regulation SBSR Proposing Release. Instead, the Commission described general criteria that it would consider when setting specific block trade thresholds in the future.[466] The Commission stated that it “preliminarily believes that the general criteria for what constitutes a large notional security-based swap transaction must be specified in a way that takes into account whether public disclosure of such transactions would materially reduce market liquidity, but presumably should be balanced by the general mandate of Section 13(m)(1) of the Exchange Act, which provides that data on security-based swap transactions must be publicly disseminated in real time, and in a form that enhances price discovery.” [467] The Commission further stated: “For post-trade transparency to have a negative impact on liquidity, market participants would need to be affected in a way that either: (1) Impacted their desire to engage in subsequent transactions unrelated to the first; or (2) impacted their ability to follow through with further actions after the reported transaction has been completed that they feel are a necessary consequence of the reported transaction.” [468]

The Commission noted, with respect to the first case, that post-trade dissemination of transaction prices could lead to narrower spreads and reduce participants' willingness to trade. However, the Commission noted that liquidity could be enhanced if market participants increased their trading activity as a result of the new information. Because it would be difficult, if not impossible, to estimate with certainty which factor would prevail in the evolving security-based swap market, the Commission was guided by the general mandate of Section 13(m)(1) and the Commission's preliminary belief that even in illiquid markets, transaction prices form the foundation of price discovery.[469] Therefore, the Commission proposed that prices for block trades be disseminated in the same fashion as prices for non-block transactions.

The Commission noted that, in the second case, counterparties may intend to take further action after an initial transaction for hedging purposes. The Commission believed that, for a transaction that was sufficiently large, disseminating the size of such a transaction could signal to the market that there is the potential for another large transaction in a particular security-based swap or related security.[470] Therefore, in order to give the market time to absorb any subsequent transactions, the Commission stated that it preliminarily believed that the size of a sufficiently large transaction should be suppressed for a certain period of time to provide time for subsequent transactions.[471]

In the Regulation SBSR Proposing Release, the Commission noted a variety of metrics that could be used to determine whether a security-based swap transaction should be considered a block trade.[472] They included: (1) The absolute size of the transaction; (2) the size of the transaction relative to other similar transactions; (3) the size of the transaction relative to some measure of overall volume for that security-based swap instrument; and (4) the size of the transaction relative to some measure of overall volumes for the security or securities underlying the security-based swap.[473] The Commission stated that the metric should be chosen in a way that minimizes inadvertent signaling to the market of potential large follow-on transactions.[474]

Although the Commission did not propose block thresholds, the Commission did propose two “waves” of public dissemination of block trades for when it had adopted block thresholds. Rule 902(b), as proposed and re-proposed, would have required a registered SDR to publicly disseminate a transaction report of a security-based swap that constitutes a block trade immediately upon receipt of information about the block trade from the reporting party. The transaction report would have been required to consist of all the information reported pursuant to Rule 901(c)—except for the notional amount—plus the transaction ID and an indicator that the report represents a block trade. The second wave would have required the registered SDR to publicly disseminate a complete transaction report for the block trade (including the transaction ID and the full notional amount) between 8 and 26 hours after the execution of the block trade. Thus, under Rule 902(b), as proposed and re-proposed, market participants would have learned the price and all other primary trade Start Printed Page 14618information (except notional amount) about a block trade in real time, and the full notional amount of the transaction on a delayed basis.[475] Registered SDRs would have been responsible for calculating the specific block thresholds based on the formula established by the Commission and publicizing those thresholds, but the Commission emphasized that a registered SDR would be performing “mechanical, non-subjective calculations” when determining block trade thresholds.[476]

The Commission proposed and re-proposed a variety of other provisions related to block trades. Proposed Rule 900 defined “block trade” to mean a large notional security-based swap transaction that satisfied the criteria in Rule 907(b). Proposed Rule 907(b) would have required a registered SDR to establish and maintain written policies and procedures for calculating and publicizing block trade thresholds for security-based swaps in accordance with the criteria and formula for determining block size specified by the Commission. Proposed Rule 907(b)(2) also would have provided that a registered SDR should not designate as a block trade: (1) Any security-based swap that is an equity total return swap or is otherwise designed to offer risks and returns proportional to a position in the equity security or securities on which the security-based swap is based; or (2) any security-based swap contemplated by Section 13(m)(1)(C)(iv) of the Exchange Act.[477]

B. Potential Impact on Liquidity

The Commission received several comments addressing the issue of timing for public dissemination and the potential impact of public dissemination on liquidity. The commenters vary significantly in their views on this issue. One commenter stated that the proposed timeframes for publicly disseminating security-based swap transaction reports would not materially reduce market liquidity.[478] Another commenter, however, expressed the view that “[t]here is insufficient liquidity in the single-name credit default swap market to support real-time public dissemination of non-block transaction data for all but a handful of instruments without creating price moving events.” [479] A third commenter expressed concern that real-time security-based swap reporting, “if implemented without adequate safeguards, could unnecessarily increase the price of entering into a derivatives contract to hedge risk” [480] and cautioned that requiring real-time reporting of thinly traded products in illiquid markets in an effort to compel derivatives to trade similarly to exchange-listed products represented “a fundamentally flawed approach that demonstrates a lack of understanding of the existing market structure.” [481] A fourth commenter expressed concern about the impact of real-time post-trade transparency for illiquid security-based swaps on pre-trade transparency that currently exists in the form of indicative prices provided by dealers to their clients (known as “runs”).[482] This commenter requested that the Commission provide illiquid security-based swaps with an exception from real-time reporting and instead allow for delays roughly commensurate with the trading frequency of the security-based swap.[483]

In addition, several commenters raised concerns about the effect of an improperly designed block trade regime.[484] One commenter stated that an appropriate block exemption is critical to the successful implementation of Title VII.[485] Several commenters expressed the view that improper block thresholds or definitions would adversely impact liquidity.[486] One commenter noted that the SEC and CFTC's proposed block trade rules would adversely impact liquidity.[487] By contrast, one commenter recommended that the Commission consider that increased transparency of trades that are large relative to the liquidity of the product may attract new entrants to the market and may result in increased liquidity.[488]

The Commission has considered these comments as well as the statutory requirement that the Commission rule for public dissemination of security-based swap transactions contain provisions that “take into account whether the public disclosure [of transaction and pricing data for security-based swaps] will materially reduce market liquidity.” [489] The Commission is adopting these final rules for regulatory reporting and public dissemination of security-based swaps with a view toward implementing additional rules in one or more subsequent phases to define block thresholds and to revisit the timeframes for reporting and public dissemination of block and non-block trades. This approach is designed to increase post-trade transparency in the security-based swap market—even in its initial phase—while generating new data that could be studied in determining appropriate block thresholds after the initial phase. The Commission also considered several comments related to the timing of public dissemination and believes that at present the commenters' concerns are appropriately addressed by the Commission's adoption of T+24 hour reporting during the interim phase.

During this phase, the reporting side will have up to 24 hours after the time of execution of a security-based swap transaction to report it to a registered Start Printed Page 14619SDR, regardless of its notional amount.[490] The registered SDR will be required, for all dissemination-eligible transactions,[491] to publicly disseminate a report of the transaction immediately upon receipt of the information. Even with the T+24 reporting of transactions, the Commission anticipates being able to collect significant new information about how market participants behave in an environment with post-trade transparency, which will inform the Commission's analysis and effort to determine what block thresholds and time delays may be appropriate.

In developing a regulatory regime for post-trade transparency in the security-based swap market, the Commission is cognizant of rules adopted by the CFTC to provide for post-trade transparency in the swap market. Commission staff analyzed the effect of the adoption of post-trade transparency in the swap market, which is regulated by the CFTC.[492] That analysis shows no discernible empirical evidence of economically meaningful effects of the introduction of post-trade transparency in the swap market at this time. In particular, the study did not find negative effects such as reduced trading activity. Based on this analysis, the Commission believes that post-trade transparency does not seem to have a negative effect on liquidity and market activity in the swap market.[493]

1. T+24 Hour Reporting for All Transactions

The Commission initially proposed to require reporting to a registered SDR of the primary trade information of all security-based swaps “as soon as technologically practicable, but in no event later than 15 minutes after the time of execution of the security-based swap transaction.” [494] For all dissemination-eligible transactions other than block trades, the registered SDR would have been required to publicly disseminate a report of the transaction immediately and automatically upon receipt of the transaction. As proposed, block trades would have been subject to two-part dissemination: (1) An initial report with suppressed notional amount disseminated in real-time; and (2) a full report including notional amount disseminated between 8 to 26 hours after execution.[495]

Commenters expressed mixed views regarding the proposed reporting timeframes. Two commenters generally supported them.[496] However, several commenters stated that, at least in the near term, it would be difficult to comply with the reporting timeframes as proposed.[497] One of these commenters argued, for example, that the benefits of providing security-based swap information within minutes of execution did not outweigh the infrastructure costs of building a mechanism to report in real time, particularly given the likelihood of errors.[498] Another commenter expressed concern that “the 15 minute limit is not technologically practicable under existing communications and data infrastructure.” [499]

Commenters also advocated that the Commission phase-in reporting deadlines over time, similar to the implementation model for TRACE, to allow regulators to assess the impact of post-trade transparency on the security-based swap market.[500] One commenter noted that phased-in implementation would allow regulators to assess the impact of transparency on the security-based swap market and make adjustments, if necessary, to the timing of dissemination and the data that is disseminated.[501] Other commenters echoed the belief that a phased approach would allow the Commission to assess the impact of public reporting on liquidity in the security-based swap market, monitor changes in the market, and adjust the reporting rules, if necessary.[502]

Three commenters recommended a 24-hour delay for reporting block trades,[503] and one recommended a delay of at least five days with an indefinite delay of full notional size.[504] Of those commenters, two also suggested that the delay could be reduced or refined after the Commission gathers additional information about the security-based swap market.[505] In contrast, two commenters recommended block delays as short as 15 minutes.[506] In addition, Start Printed Page 14620several commenters opposed two-part transaction reporting for block trades. These commenters believed that all information about a block trade, including the notional amount of the transaction, should be subject to a dissemination delay to provide liquidity providers with adequate time to hedge their positions.[507] Two commenters recommended initially setting block sizes low and over time collecting data to determine an appropriate block trade size.[508]

In addition, Commission staff has undertaken an analysis of the inventory management of dealers in the market for single-name CDS based on transaction data from DTCC-TIW.[509] The analysis, in line with prior studies of hedging in this market,[510] shows that, after most large transactions between a dealer and customer are executed, dealers do not appear to hedge resulting exposures by executing offsetting transactions (either with other dealers or other customers) in the same single-name CDS. In instances where dealers appear to hedge resulting exposures following a large trade in single-name CDS written on the same reference entity, they generally do so within a maximum of 24 hours after executing the original trade.

One commenter responded to this analysis, asserting that dealers, rather than hedging security-based swap exposures using offsetting transactions in the same instruments, might choose instead to hedge their security-based swap exposures in related assets, and that these types of hedging behaviors were not measured in the Commission staff analysis. The commenter further suggested that the use of cross-market hedges could be particularly important for transactions in single-name CDS that are especially illiquid.[511] The Commission acknowledges that the staff's analysis was limited to same-instrument hedging.[512] However, the Commission notes that, to the extent that security-based swap positions can be hedged using other assets—as the commenter suggests—these additional opportunities would suggest that dealers would likely need less time to hedge than if hedging opportunities existed only within the security-based swap market.

In view of these comments and the staff analysis, the Commission is modifying Regulation SBSR's timeframes for reporting security-based swap transaction information as follows. First, Rules 901(c) and 901(d), as adopted, require reporting sides to report the information enumerated in those rules “within the timeframe specified in paragraph (j) of this section”—i.e., by Rule 901(j). Rule 901(j), as adopted, provides that the reporting timeframe for Rules 901(c) and 901(d) shall be “within 24 hours after the time of execution (or acceptance for clearing in the case of a security-based swap that is subject to regulatory reporting and public dissemination solely by operation of § 242.908(a)(1)(ii)), or, if 24 hours after the time of execution or acceptance for clearing, as applicable, would fall on a day that is not a business day, by the same time on the next day that is a business day.” Under Rule 902(a), as adopted, the registered SDR that receives the transaction report from the reporting side is required, as proposed and re-proposed, to publicly disseminate a report of that transaction immediately upon receipt. The Commission believes that this approach will improve post-trade transparency and respond to commenters' concerns. In particular, the Commission believes that this approach addresses concerns relating to potential market impact, the ability to report in real time, and the length of delay for dissemination of block trade information.[513] Thus, the T+24 hour approach is designed to improve post-trade transparency in the security-based swap market in the near term, while generating additional data that the Commission can evaluate in considering appropriate treatment of block trades.

At this time, the Commission is not adopting the provisions of proposed and re-proposed Rule 902 that would have provided for real-time public dissemination of non-block trades. However, the Commission is adopting, substantially as proposed and re-proposed, what was originally designed to be the second wave of block dissemination—i.e., disseminating the full trade details, including the true notional amount, at one of two points in the day (either 07:00 or 13:00 UTC) after an initial report of the transaction (without the notional amount) had been disseminated in real time.[514] The Commission is now simplifying that approach by eliminating the idea of “batch dissemination” at two points during the day, and instead allowing for T+24 hour reporting for all transactions, regardless of the time of execution. Furthermore, in the absence of a standard to differentiate block from non-block transactions, the Commission believes that it is appropriate to require the same T+24 hour reporting for all transactions.[515]

This interim phase is designed to allow the accumulation of empirical Start Printed Page 14621data and is consistent with various comments that emphasized the need for further study and analysis of empirical data prior to establishing block trading rules.[516] Several commenters noted that implementing the rules requiring reporting to registered SDRs prior to the block trading rules would provide security-based swap transaction data (in addition to historical data) that could be used in the formation of block trade thresholds.[517] One of these commenters stated, for example, that it would be premature to adopt block trade thresholds prior to the commencement of reporting to registered SDRs because SDR reporting would increase the amount of information available across various markets and asset classes.[518] Commenters also recommended several methods for obtaining and analyzing empirical data,[519] including independent academic research[520] and a review of a statistically significant data set for each security-based swap category.[521]

Although more data and analyses about executed transactions are now available than when the Commission originally issued the Regulation SBSR Proposing Release,[522] these data provide limited insights into how post-trade transparency might affect market behavior if executed transactions were to become publicly known on a real-time or near-real-time basis.[523] The Commission has information from DTCC-TIW about most CDS trades over the past few years [524] and can analyze the frequency of execution and the notional trade sizes. However, the Commission believes that these data permit only speculative inferences about the potential market impact of those trades being made public. Currently, there is little post-trade transparency in the security-based swap market, so the current trading generally is informed only imperfectly, if at all, about earlier trading.

Several aspects of the Commission's adopted rules are designed to help facilitate the collection of data relating to how post-trade transparency affects market behavior. The Commission is adopting, as re-proposed, the requirement that the trade report include the time of execution and the requirement that the registered SDR mark the time that it receives the trade report. These requirements are designed to help inform the Commission as to the length of time between the execution of a transaction and when the transaction is reported to a registered SDR, which should provide useful data to the Commission in analyzing trends in reporting timeframes. These timeframes would provide some insight into the beliefs of market participants regarding the length of the reporting delay that they deem necessary to minimize the market impact of a transaction. Observing trades being reported to a registered SDR with varying delays after execution could provide the Commission with greater insight as to what market participants consider to be market-impacting trades. Further, the Commission believes that this approach would address, during the interim phase, the concerns of the commenters who believed that a public dissemination regime with inappropriately low block trade thresholds could harm market liquidity, and those who argued that market participants would need an extended period of time to comply with the requirements to report within shorter timeframes.

Although any participant could take the full 24 hours to report a given trade, there may be incentives to submit trade reports in substantially less than 24 hours. The Commission understands that, in some cases, entities that are likely to become SB SEFs (“pre-SEFs”) may want to broadcast trades executed electronically across their platforms to all subscribers in order to catalyze trading by other counterparties at the same price.[525] This “work-up” process, according to a commenter, is designed to foster liquidity in the security-based swap market and to facilitate the execution of larger-sized transactions.[526] If pre-SEFs and their participants want to continue their current practices and broadcast a subset of their executed trades across the platform in real time to facilitate work-ups, they will be subject to Rule 902(d), which embargos transaction information until the information is transmitted to a registered SDR.[527] Therefore, any pre-SEF or user of a pre-SEF that wants to continue to have real-time information about a completed trade broadcast as part of a work-up must ensure that the initial transaction is reported to a registered SDR no later than the time at which it is broadcast to users of the pre-SEF.

In response to commenters who advocated shorter reporting time frames or block trade delays, the Commission notes that it anticipates further refining the reporting timeframes when it proposes and implements final block Start Printed Page 14622trade rules, at which point reporting sides will have had more time to test and implement their reporting systems and processes. This approach was recommended by several commenters.[528]

2. Reporting Timeframe for Trades Executed Prior to Weekends or U.S. Federal Holidays

While most transactions will have 24 hours within which to be reported, Rule 901(j) also provides that, “if 24 hours after the time of execution would fall on a day that is not a business day, [the transaction must be reported] by the same time on the next day that is a business day.” The Commission's intent is to afford security-based swap counterparties—during the interim phase—the equivalent of at least an entire business day to hedge their positions, if they so desire, before the transaction must be reported and publicly disseminated. Without clarifying that, during the interim phase, reporting requirements fall only on business days, for a transaction executed on the day before a weekend or holiday, the counterparties would have less than the number of business hours of a regular business day to hedge a transaction if reporting were required within 24 hours of execution.

The Commission is also adopting a definition of “business day” to clarify the “not a business day” provision. “Business day” is defined in Rule 900(f) as “a day, based on U.S. Eastern Time, other than a Saturday, Sunday, or a U.S. federal holiday.” Counterparties to the trade may be in different time zones and/or jurisdictions; in the absence of Rule 900(f) there could be confusion about whether the “not a business day” provision referred to the jurisdiction and time zone of one side or the jurisdiction and time zone of the other. Because Regulation SBSR is designed to implement Title VII's regulatory reporting and public dissemination requirements for the U.S. security-based swap market, the Commission is designating U.S. Eastern Time (which may be either Eastern Standard Time or Eastern Daylight Time) as the time zone on which the reporting side should base its reporting for purposes of Rules 900(f) and 901(j). The Commission also is excluding U.S. federal holidays from the definition of “business day.” The following examples are designed to help explain the application of this provision:

  • Example 1. A trader executes a trade at 04:59 UTC on Friday (11:59 p.m. EST on Thursday). This particular Friday is not a U.S. federal holiday. The reporting side must report by 04:59 UTC on Saturday (11:59 p.m. EST on Friday).
  • Example 2. A trader executes a trade at 05:01 UTC on Friday (12:01 a.m. EST on Friday). The reporting side must report by 05:01 UTC on Monday (12:01 a.m. EST on Monday), provided that this particular Monday is not a U.S. federal holiday.
  • Example 3. A trader executes a trade at 14:42 UTC on Friday (9:42 a.m. EST on Friday). The reporting side must report by 14:42 UTC on Monday (9:42 a.m. EST on Monday), provided that this particular Monday is not a U.S. federal holiday.
  • Example 4. A trader executes a trade at 13:42 UTC on Friday (9:42 a.m. EDT on Friday). The following Monday is Labor Day, a U.S. federal holiday. The reporting party must report by 13:42 UTC on Tuesday (9:42 a.m. EDT on Tuesday).
  • Example 5. A trader executes a trade at 16:45 UTC on Wednesday, November 26, 2014 (11:45 a.m. EST on Wednesday, November 26, 2014). Thursday, November 27, 2014 is Thanksgiving, a U.S. federal holiday. The reporting party must report by 16:45 UTC on Friday, November 28, 2014 (11:45 a.m. EST on Friday, November 28, 2014).
  • Example 6. A trader executes a trade at 16:45 UTC on a Wednesday (11:45 a.m. EST on Wednesday). Thursday is not a U.S. federal holiday, but a large blizzard causes emergency closures in New York City and several other U.S. cities. The reporting party must report by 16:45 UTC on Thursday (11:45 a.m. EST on Thursday).

3. Other Revisions To Accommodate the Interim Phase

In addition to the changes noted above, the Commission is adopting the following technical changes to Regulation SBSR to implement the interim phase of reporting and public dissemination. First, the Commission is not adopting certain sections of rule text that referred to block trades and marking those sections as “Reserved.” Rule 900(c), as re-proposed, would have defined a “block trade” as a large notional security-based swap transaction that meets the criteria set forth in proposed Rule 907(b). Rule 907(b), as proposed and re-proposed, would have required a registered SDR to establish and maintain policies and procedures “for calculating and publicizing block trade thresholds for all security-based swap instruments reported to the registered security-based swap data repository in accordance with the criteria and formula for determining block size as specified by the Commission.” Rule 907(b), as proposed and re-proposed, also would have excluded equity TRS instruments and any security-based swap contemplated by Section 13(m)(1)(C)(iv) of the Exchange Act [529] from the definition of “block trade.” Because the Commission anticipates soliciting public comment on block thresholds and other rules related to block trades—including what role (if any) registered SDRs should play in calculating those thresholds—the Commission is not at this time defining the term “block trade” in Rule 900(c) or adopting Rule 907(b). Similarly, because the Commission is not at this time adopting the requirement to report in real time, the Commission is not adopting a definition of “real time” in Rule 900.

Second, the Commission has determined not to utilize the term “security-based swap instrument” [530] in Regulation SBSR. The Commission devised the original definition of “security-based swap instrument” in connection with its overall analysis of the block trade issue. In the Regulation SBSR Proposing Release, the Commission stated its preliminary belief that it would not be appropriate to establish different block trade thresholds for similar instruments with different maturities. Thus, the proposed definition of “security-based swap instrument” did not include any distinction based on tenor or date until expiration.[531]

One commenter discussed the concept of security-based swap instruments in the context of its overall discussion of block trade issues.[532] The commenter argued that a different block size threshold would have to be Start Printed Page 14623calculated for each category of security-based swap instrument, so the boundaries of those categories would greatly impact market participants' ability to engage in block trading. The commenter recommended, therefore, that instruments be classified in as few categories as possible.[533] Another commenter argued that the definition of “security-based swap instrument” “should provide for more granular distinctions between different types of transaction within a single asset class to avoid grouping together transactions with quite different characteristics.” [534]

The Commission anticipates soliciting public comment on block trade thresholds at a later date. Because the initial intent of the term “security-based swap instrument” was to delineate separate categories of security-based swaps that could have separate block trade thresholds, the Commission is not adopting the term “security-based swap instrument” at this time. The Commission anticipates soliciting public comment on whether and how to establish different categories of security-based swaps—and what, if any, block thresholds and dissemination delays will apply to those different categories—when it solicits comment on block thresholds.

Further, proposed Rule 902(b) would have specified the delay for dissemination of certain information about block trades to the public as well as what information a registered SDR should disseminate immediately. Because the Commission anticipates that it will re-propose all aspects of Regulation SBSR as they pertain to block trades, the Commission is not adopting Rule 902(b) at this time.

Rules 901(j), as adopted, require the reporting of both primary and secondary trade information, respectively, for a security-based swap no later than 24 hours after the time of execution (or acceptance for clearing in the case of a security-based swap that is subject to regulatory reporting and public dissemination solely by operation of Rule 908(a)(1)(ii)), or, if 24 hours after the time of execution or acceptance for clearing, as applicable, would fall on a day that is not a business day, by the same time on the next day that is a business day. Re-proposed Rule 901(d)(2) would have required the reporting side to report what final Rule 901(d) now terms the “secondary trade information” promptly, but in any event, no later than: (1) 15 minutes after the time of execution for a security-based swap that is executed and confirmed electronically; (2) 30 minutes after the time of execution for a security-based swap that is confirmed electronically but not executed electronically; or (3) 24 hours after the time of execution for a security-based swap that is not executed or confirmed electronically. In proposing these reporting timeframes, the Commission recognized that the amount of time required for counterparties to report the information required under proposed Rule 901(d)(1) depended upon, among other things, the extent to which the security-based swap was customized and whether the security-based swap was executed or confirmed electronically or manually.[535]

Generally, commenters' views regarding the regulatory reporting timeframes in proposed Rule 901(d)(2) were mixed. While some commenters expressed concerns that the proposed timeframes were too lenient or incentivized slower technologies,[536] other commenters expressed the view that the reporting timeframes in proposed Rule 901(d)(2) were not practicable.[537] One of these commenters noted the likelihood of errors if reporting timeframes were too short.[538] Another commenter urged the Commission to strike an appropriate balance between speed and accuracy in establishing timeframes for regulatory reporting.[539] One commenter suggested that, initially, the Rule 901(d) regulatory reporting timeframes should be set closer to current market capability, with electronically confirmable trades reported within 24 hours.[540] This commenter recommended a phase-in period to allow reporting parties to develop the necessary reporting capabilities, after which time shorter timeframes could be implemented.[541]

The Commission is not adopting the reporting timeframes proposed in Rule 901(d)(2), and is therefore renumbering Rule 901(d)(1) as Rule 901(d).[542] Because Rule 901(j), as adopted, allows reporting sides up to 24 hours to report the primary trade information pursuant to Rule 901(c) (or until the same time on the next business day if the trade occurs less than 24 hours before a weekend or federal holiday), the Commission believes that it is appropriate also to modify the timeframe for reporting the secondary trade information set forth in Rule 901(d) to harmonize with the Rule 901(c) requirement. Although both the primary and secondary trade information must be reported within 24 hours of the time of execution or acceptance for clearing, as applicable (or until the same time on the next business day if the trade occurs less than 24 hours before a weekend or federal holiday), Rule 901 does not require that all of the information enumerated in Rules 901(c) and 901(d) be provided in a single trade report. Thus, a reporting side could, if permitted by the policies and procedures of the relevant registered SDR, make an initial report of the primary trade information followed by a subsequent report containing secondary trade information, so long as both reports were provided within the timeframe prescribed by Rule 901(j).[543]

The Commission acknowledges the issues raised by the commenters regarding the proposed reporting timeframes, and, in particular, the concerns that unreasonably short reporting timeframes would result in the submission of inaccurate transaction information. The Commission believes that the 24-hour reporting timeframe being adopted in Rule 901(j) strikes an appropriate balance, for the interim phase, between the need for prompt reporting of security-based swap transaction information and allowing Start Printed Page 14624reporting entities sufficient time to develop fast and robust reporting capability. The Commission notes that some commenters supported a 24-hour reporting timeframe as consistent with existing industry reporting capability,[544] and believes that this timeframe addresses commenters' concerns that some elements of the required information might not be available within the initially proposed reporting timeframes.[545]

Finally, Rule 901(d)(2), as proposed and re-proposed, would have established reporting timeframes based on whether a security-based swap is executed and/or confirmed electronically. The term “confirm” appeared only in Rule 901(d)(2), as proposed and re-proposed.[546] Because this term does not appear in Rule 901(d)(2), as adopted, the Commission has determined not to adopt a definition for the term “confirm” in final Rule 900.[547]

4. Dissemination of Notional Amount

The Commission is mindful of comments expressing concern about dissemination of the full notional amount for block trades.[548] For example, two commenters expressed the view that disseminating the notional amount of a block trade could jeopardize the anonymity of the counterparties.[549] One commenter, who noted that TRACE never requires the dissemination of the exact notional amount of block transactions, suggested that the Commission had not fully explained its rationale for not adopting this approach for security-based swaps.[550] Numerous commenters supported dissemination of the notional amount of block trades through a “masking” or “size plus” convention comparable to that used by TRACE, in which transactions larger than a specified size would be reported as “size plus.” [551]

Under Rule 902(a), as adopted, a registered SDR is required to publicly disseminate (for all dissemination-eligible transactions [552] ), immediately upon receipt of the transaction report, all of the elements required by Rule 901(c), including the true notional amount of the transaction (as opposed to a “capped” or “bucketed” notional amount). The Commission believes the T+24 hour approach during the interim phase should address commenters' concerns about disseminating the true notional amount of a transaction, including concerns about preserving the anonymity of counterparties.[553] One commenter expressed concern about reporting blocks and non-blocks in the same timeframe, which, the commenter stated, would prevent market participants from being able to hedge the trade.[554] The Commission believes that a 24-hour timeframe for reporting of transaction information should address any concerns about disseminating the true notional amount of any transaction and allow market participants who choose to hedge adequate time to accomplish a majority of their hedging activity before transaction data is publicly disseminated.[555] During the interim phase when no transaction must be reported in less than 24 hours after execution, the Commission will be able to collect and analyze transaction information to develop an understanding of how market participants are reacting to the introduction of mandated post-trade transparency. The Commission expects to study, among other things, the frequency with which security-based swap market participants transact in non-standard notional amounts, and will attempt to observe whether the market reacts differently to last-sale prints of any non-standard sizes versus more conventional sizes. Based on such data and analysis, the Commission anticipates considering whether it may be appropriate to establish notional caps or rounding conventions in disseminated reports.

5. Analysis Period

As discussed in Section XXII(C)(3)(a), infra, during the interim phase, the Commission will have access to more useful data about how different security-based swap trades of different sizes and with different reporting delays might be affecting subsequent behavior in the market, as well as any additional data and analysis that might be submitted by third parties.[556] Furthermore, once implemented, reporting sides will be required under Regulation SBSR to submit their security-based swap execution times to a registered SDR. As noted above, security-based swap transaction data currently stored in DTCC-TIW includes the time of reporting but not the time of the execution.[557] Having the execution time instead of only the reporting time will allow a more robust and granular analysis of any hedging that may or may not occur within the first 24-hour period after execution.

The Commission is directing its staff to use data collected during the interim phase to publish a report for each asset class of security-based swaps assessing the impact of post-trade transparency on that asset class. The Appendix to Rule 901 of Regulation SBSR sets forth the guidelines for these reports, which must be completed no later than two years following the initiation of public dissemination of SBS transaction data by the first registered SDR in each asset class.[558]

The completion of the staff's report for an asset class will mark the beginning of an analysis period, during which the Commission anticipates Start Printed Page 14625considering the report, any public comments received on the report, and any other relevant data and information, including the Commission's original proposal to define “real time” in the context of Section 13(m) of the Exchange Act to mean “as soon as technologically practicable, but in no event later than 15 minutes after the time of execution of a security-based swap transaction.” [559] Based on this analysis, the Commission anticipates that it will prepare a proposal that would address, among other things: (1) The criteria for determining what constitutes a large notional security-based swap transaction (block trade) for particular markets and contracts; and (2) the appropriate time delay for disseminating large notional security-based swap transactions (block trades) to the public.[560] The Commission believes that the approach of studying security-based swap market activity once post-trade transparency is implemented, but before adopting block trade rules, accords with the recommendations of several commenters.[561]

VIII. Reporting and Public Dissemination of Security-Based Swaps Involving Allocation

This section explains the application of Regulation SBSR to certain security-based swaps executed by an asset manager on behalf of multiple clients—transactions involving what are sometimes referred to as “bunched orders.” [562] To execute a bunched order, an asset manager negotiates and executes a security-based swap with a counterparty, typically a security-based swap dealer, on behalf of multiple clients. The bunched order could be executed on- or off-platform. The asset manager would allocate a fractional amount of the aggregate notional amount of the transaction to each client, either at the time of execution or some time after execution. Allocation results in the termination of the executed bunched order and the creation of new security-based swaps between the security-based swap dealer and the accounts managed by the asset manager.[563] By executing a bunched order, the asset manager avoids having to negotiate the account-level transactions individually, and obtains exposure for each account on the same terms (except, perhaps, for size).

A. Discussion of Comments Received and Application of Regulation SBSR

In response to the Regulation SBSR Proposing Release, one commenter stated that asset managers commonly use bunched orders and allocations in the OTC derivatives market, and recommended that publicly disseminating the execution of a bunched order—without the allocation information—would satisfy the transparency objective of Title VII and be consistent with TRACE reporting.[564] The commenter also expressed the view that the reporting party for a bunched order execution should be obligated to report allocation information, which would be necessary to indicate the final placement of risk derived from the initial trade.[565] The discussion below explains how Regulation SBSR's regulatory reporting and public dissemination requirements apply to executed bunched orders that are subject to the reporting hierarchy in Rule 901(a)(2)(ii) and the security-based swaps that result from the allocation of these transactions, to the extent that the resulting security-based swaps are not cleared. The Regulation SBSR Proposed Amendments Release is proposing guidance for reporting platform-executed bunched orders that will be submitted to clearing and security-based swaps that result from the allocation of a bunched order if the resulting security-based swaps are cleared.

Regulation SBSR requires bunched order executions to be reported like other security-based swaps. The reporting side for a bunched order execution subject to the reporting hierarchy in Rule 901(a)(2)(ii) [566] must report the information required by Rules 901(c) and 901(d) for the bunched order execution, including the notional amount of the bunched order execution, to a registered SDR.[567] The information described in final Rule 901(c) will be publicly disseminated under final Rule 902(a), like any other security-based swap transaction that does not fall within the enumerated exceptions to public dissemination in Rule 902(c).[568] The Commission believes that it is appropriate to enhance price discovery, and thus consistent with the statutory provisions governing public dissemination of security-based swaps, to require public dissemination of a single transaction report showing the aggregate notional amount of the bunched order execution (i.e., the size Start Printed Page 14626prior to allocation).[569] The public thereby will know the full size of the bunched order execution and that this size was negotiated at a single price. The reporting side for a bunched order execution also must report life cycle events for the bunched order execution—including the termination of the executed bunched order that result from its allocation—to the registered SDR that receives the initial report of the transaction.

When a bunched order execution is allocated, new security-based swaps are created that must be reported to a registered SDR pursuant to Rule 901(a). To clarify that point, the introductory language to final Rule 901(a) states that a “security-based swap, including a security-based swap that results from the allocation, termination, novation, or assignment of another security-based swap, shall be reported” as provided in the rest of the rule.[570] Reporting of the security-based swaps resulting from the allocation of a bunched order execution should assure that the Commission and other relevant authorities know the final placement of risk that results from the bunched order execution.[571] As with any other security-based swap, the reporting side for a security-based swap resulting from an allocation is determined by Rule 901(a). Also, as with any other security-based swap, the reporting side must make the required report within 24 hours of the time that the new security-based swap is created—not within 24 hours of the time of execution of the original bunched order.[572] Under Rule 901(d)(10), the reporting side for a security-based swap resulting from an allocation must report the transaction ID of the executed bunched order as part of the report of the new security-based swap.[573] This requirement will allow the Commission and other relevant authorities to link a report of a bunched order execution to the smaller security-based swaps that result from the allocation of the bunched order execution. Because these related transactions can be linked across registered SDRs using the transaction ID of the bunched order execution, the Commission believes that it is not necessary or appropriate to require that the security-based swaps resulting from the allocation be reported to the same registered SDR that received the transaction report of the original transaction.

The Commission agrees with the commenters who recommended that publicly disseminating the execution of a bunched order—without the allocation information—would satisfy the transparency objective of Title VII.[574] Therefore, Regulation SBSR does not require a registered SDR to publicly disseminate reports of the new security-based swaps that result from an allocation. In fact, as described above, Rule 902(c)(7), as adopted, prohibits a registered SDR from disseminating “[a]ny information regarding the allocation of a security-based swap.” [575] This approach also accords with the recommendation of the commenter who urged that the aggregate notional amount prior to allocation be disseminated, rather than the individual transaction sizes, in order to preserve anonymity of the asset manager and its clients.[576]

The Commission notes that Rule 907(a)(1), as adopted, requires a registered SDR to establish and maintain policies and procedures that, among other things, enumerate the specific data elements of a security-based swap that must be reported. Registered SDRs should consider describing, as part of these policies and procedures, the means by which persons with a duty to report bunched order executions—and the new security-based swaps that result from the allocation—must report the information required by Rules 901(c) and 901(d).

B. Example: Reporting and Public Dissemination for an Uncleared Bunched Order Execution

The following example demonstrates how Regulation SBSR applies to a bunched order execution that will not be cleared and the security-based swaps that result from the allocation of that bunched order execution. Assume that an asset manager, acting on behalf of several investment fund clients, executes a bunched order with a registered security-based swap dealer. Assume that the transaction is not submitted to clearing and there are no indirect counterparties on either side. The execution of the bunched order could occur either on a platform or not.

1. Reporting the Executed Bunched Order

Under Rule 901(a)(2)(ii), as adopted, the registered security-based swap dealer is the reporting side for the bunched order execution because only one side of the transaction includes a registered security-based swap dealer. Under final Rules 901(c) and 901(d), the registered security-based swap dealer has up to 24 hours after the time of execution of the bunched order to report all applicable primary and secondary trade information to a registered SDR. The registered security-based swap dealer must report the entire notional amount of the executed bunched order as part of the Rule 901(c) primary trade information.[577] Rule 902(a) requires the registered SDR to publicly disseminate a single last-sale print showing the aggregate notional amount of the bunched order execution immediately upon receiving the report from the registered security-based swap dealer.

2. Reporting the Allocations

Regulation SBSR also requires reporting to a registered SDR of the security-based swaps that result from allocation of the bunched order execution.[578] As the reporting side for the executed bunched order, the registered security-based swap dealer must make a life cycle event report, in accordance with Rule 901(e), to notify the registered SDR that received the report of the executed bunched order Start Printed Page 14627that the trade has been allocated, which terminates the security-based swap. Pursuant to Rule 901(a)(2)(ii), the registered security-based swap dealer also is the reporting side for each security-based swap resulting from allocation of the bunched order execution because only one side of the transaction includes a registered security-based swap dealer.[579] If the asset manager provides the allocation information to the registered security-based swap dealer prior to or contemporaneous with the bunched order execution, the registered security-based swap dealer could report the bunched order execution and the security-based swaps that result from its allocation to a registered SDR at the same time.[580] If the asset manager does not provide the allocation information to the registered security-based swap dealer until some time after execution of the bunched order, the registered security-based swap dealer must report each security-based swap resulting from the allocation within 24 hours of the allocation. In either case, the reports of the security-based swaps resulting from the allocation of the bunched order execution must include the counterparty IDs of each investment fund and the notional amount of each security-based swap resulting from the allocation. In either case, Rule 901(d)(10) requires each report of a security-based swap resulting from the allocation to include the transaction ID of the bunched order execution so that the Commission and other relevant authorities will have the ability to link each resulting transaction with the initial bunched order execution.

IX. Inter-Affiliate Security-Based Swaps

A. Background and Summary of Final Rule

Regulation SBSR, as initially proposed, did not contemplate any exception from reporting for inter-affiliate security-based swaps. In the Regulation SBSR Proposing Release, the Commission expressed the preliminary view that a report of an inter-affiliate security-based swap should be publicly disseminated with an indicator identifying the transaction as an inter-affiliate security-based swap.[581] The Commission noted that, for such transactions, “there might not be an arm's length negotiation over the terms of the [security-based swap] transaction, and disseminating a report of the transaction without noting that fact would be inimical to price discovery.” [582] Rule 907(a)(4), as proposed, would have required a registered SDR to establish and maintain written policies and procedures describing, among other things, how reporting parties would report—and consistent with the enhancement of price discovery, how the registered SDR would publicly disseminate—security-based swap transactions that do not involve an opportunity to negotiate any material terms, other than the counterparty.[583]

The Commission received several comments regarding inter-affiliate security-based swaps in response to the Regulation SBSR Proposing Release and discussed those comments in the Cross-Border Proposing Release.[584] Although the Cross-Border Proposing Release did not propose to revise any portion of Regulation SBSR with regard to the treatment of inter-affiliate security-based swaps, the Commission provided some preliminary thoughts on how Regulation SBSR could be applied to them, particularly as regards to public dissemination, in a manner that could address commenters' concerns without taking the step of suppressing all inter-affiliate transactions from public dissemination.[585] In response to the Cross-Border Proposing Release, the Commission received additional comments, described below, regarding the application of Regulation SBSR to inter-affiliate security-based swaps.

Regulation SBSR, as adopted, applies to all security-based swaps, including inter-affiliate security-based swaps. The Commission has considered, but is not adopting, any exemption from Regulation SBSR's regulatory reporting or public dissemination requirements for inter-affiliate security-based swaps. Therefore, Rules 901(c) and 901(d) require reporting of inter-affiliate security-based swaps; Rule 901(i) requires reporting of historical inter-affiliate security-based swaps; and Rule 902 requires public dissemination of inter-affiliate security-based swaps. Furthermore, Rule 907(a)(4) requires a registered SDR to establish and maintain policies and procedures that, among other things, identify characteristics of or circumstances associated with the execution or reporting of a security-based swap that could, in the fair and reasonable estimation of the registered SDR, cause a person without knowledge of such characteristics or circumstances to receive a distorted view of the market. As discussed in Section VI(G), supra, the Commission generally believes that a registered SDR should establish a flag for inter-affiliate security-based swaps to help market observers better understand the information that is publicly disseminated.

B. Discussion of Comments

1. Regulatory Reporting of Inter-Affiliate Security-Based Swaps

Most of the comments relating to inter-affiliate security-based swaps, in response to both the initial proposal and the Cross-Border Proposing Release (which re-proposed Regulation SBSR in its entirety), pertained to public dissemination. However, one commenter stated that, because inter-affiliate transactions should not be publicly disseminated, it also should be unnecessary to “collect” information about them.[586] Another commenter on the Regulation SBSR Proposing Release argued that, for a foreign entity registered as a bank holding company and subject to the consolidated supervision of the Federal Reserve System, the reporting of inter-affiliate transactions would be superfluous because the Federal Reserve has “ample authority to monitor transactions among affiliates,” [587] suggesting that even regulatory reporting of inter-affiliate security-based swaps should not be necessary.[588] In the Cross-Border Proposing Release, the Commission specifically asked whether commenters believed that cross-border inter-affiliate security-based swaps should be excluded from the regulatory reporting requirements of Regulation SBSR and, if so, under what circumstances such security-based swaps should be excluded.[589] No commenters on the Cross-Border Proposing Release responded to this particular question pertaining to regulatory reporting.

Start Printed Page 14628

The Commission continues to believe that the Commission and other relevant authorities should have ready access to information about the specific counterparties that hold positions in all security-based swaps subject to Regulation SBSR. While it is true that the Federal Reserve or perhaps another relevant authority might exercise consolidated supervision over a group, such supervision might not provide the Commission and other relevant authorities with current and specific information about security-based swap positions held by the group's subsidiaries. As a result, it would likely be more difficult for relevant authorities to conduct general market analysis or surveillance of market behavior, and could present difficulties during a crisis, when ready access to accurate and timely information about specific risk exposures might be crucial. Furthermore, the statutory provisions that require regulatory reporting of security-based swap transactions state that “each” security-based swap shall be reported; these statutory provisions do not by their terms limit the reporting requirement to transactions having particular characteristics (such as being negotiated at arm's length).[590] Even absent these constraints, for the reasons described above, the Commission does not believe that an exemption from regulatory reporting for these transactions would be appropriate. Therefore, Regulation SBSR subjects inter-affiliate security-based swaps to regulatory reporting.[591]

2. Public Dissemination of Inter-Affiliate Security-Based Swaps

As discussed below, some commenters raised concerns regarding the public dissemination of inter-affiliate security-based swaps. After carefully considering the issues raised by these commenters, the Commission has determined to adopt Regulation SBSR with no exemption from the public dissemination requirements for inter-affiliate security-based swaps.

As a preliminary matter, the Commission notes that, once a security-based swap transaction has been reported to a registered SDR, the counterparties assume no additional burdens associated with public dissemination of the transaction. That function will be carried out solely by the registered SDR. Thus, requiring registered SDRs to publicly disseminate security-based swaps, including inter-affiliate security-based swaps, will not increase the compliance burden on security-based swap counterparties.

One commenter argued that inter-affiliate security-based swaps should not be subject to public dissemination because “public reporting could confuse market participants with irrelevant information” and suggested that “the Commissions collect data on these transactions but not require dissemination to the public at large.” [592] Another commenter stated that an inter-affiliate transaction “does not contain any additional price information beyond that contained in the transaction with the customer.” [593] One group of commenters argued that publicly disseminating inter-affiliate transactions “will distort the establishment of position limits, analysis of open interest, determinations of block trade thresholds and performance of other important regulatory analysis, functions and enforcement activities that require an accurate assessment of the [security-based] swaps market.” [594] These commenters stated, further, that inter-affiliate security-based swaps “could be required to be publicly reported in multiple jurisdictions, even though they are not suitable for reporting in any jurisdiction.” [595]

An accurate assessment of the security-based swap market will be necessary for a wide range of functions, potentially including—as noted by this group of commenters—analysis of open interest and the establishment of block trade thresholds.[596] The Commission believes that users of security-based swap market data—whether regulators, SDRs, market participants, or the public at large—should have an accurate and undistorted view of the market. However, it does not follow that public dissemination of inter-affiliate security-based swaps will necessarily prevent an accurate assessment of the security-based swap market.

The need to distinguish reports of initial transactions from subsequent inter-affiliate transactions exists whether or not the latter are publicly disseminated. As noted above, the Commission is requiring each registered SDR to adopt, among others, policies and procedures for flagging transaction reports that have special circumstances.[597] This flagging mechanism is designed to provide regulators with a more accurate view of the security-based swap market, and the same mechanism can be applied to publicly disseminated last-sale reports to give market observers the same view. The Commission continues to believe that the commenters' concerns about the potentially limited price discovery value of inter-affiliate security-based swaps can be addressed through the public dissemination of relevant data that flags such limitations, rather than suppressing these transactions from public dissemination entirely. Additionally, even if the report of an initial security-based swap transaction has been publicly disseminated in another jurisdiction, the Commission believes that it would be preferable to disseminate a report of the subsequent inter-affiliate transaction with an appropriate condition flag rather than suppressing a report of the inter-affiliate Start Printed Page 14629transaction from public dissemination through a registered SDR. Public dissemination of such a transaction by a registered SDR would help to assure that information concerning the transaction was readily available to participants in the U.S. market and other market observers.

One group of commenters argued that “use of inter-affiliate [security-based swaps] not only allows risks to reside where they are more efficiently managed, but it also has a net positive effect on an institution's assets and liquidity, as well as on its efficiency in deploying capital. For these reasons, we believe that there should be an inter-affiliate exemption from the public dissemination requirements.” [598] Another commenter raised similar concerns, arguing that “public reporting of inter-affiliate transactions could seriously interfere with the internal risk management practices of a corporate group” and that “[p]ublic disclosure of a transaction between affiliates could prompt other market participants to act in a way that would prevent the corporate group from following through with its risk management strategy by, for instance, causing adverse price movements in the market that the risk-carrying affiliate would use to hedge.” [599] The Commission agrees generally that corporate groups should engage in appropriate risk management practices. However, the Commission does not agree that Regulation SBSR, as adopted, is inimical to effective risk management. The Commission notes that, during the first phase of Regulation SBSR, all security-based swaps—regardless of size—must be reported within 24 hours from the time of execution and—except with regard to transactions falling within Rule 902(c)—immediately publicly disseminated. As discussed in Section VII, supra, this reporting timeframe is designed, in part, to minimize any potential for market disruption resulting from public dissemination of any security-based swap transaction during the interim phase of Regulation SBSR. The Commission anticipates that, during the interim period, it will collect and analyze data concerning the sizes of transactions that potentially affect liquidity in the market. If the Commission ultimately determines that some form of block trade exception to real-time public dissemination is appropriate, an inter-affiliate security-based swap of block size would be able to avail itself of that exception. The Commission sees no basis for concluding, at this time, that inter-affiliate security-based swaps are more difficult to hedge than other types of security-based swaps, or that the hedging of these transactions presents unique concerns that would not also arise in connection with the hedging of a security-based swap that was not an inter-affiliate transaction. Therefore, the Commission does not agree with the commenters' concern that public dissemination of inter-affiliate security-based swaps will impede the ability of corporate groups to hedge.

Another group of commenters argued that “affiliates often enter into these swaps on terms linked to an external trade being hedged. If markets have moved before the inter-affiliate trade is entered into on the SEF or reported as an off-exchange trade, market participants could also misconstrue the market's true direction and depth.” [600] This comment suggests that last-sale reports of transactions that appear out of the order in which the transactions in fact occurred could mislead market observers. The Commission shares this concern but does not conclude that the appropriate response is to suppress all inter-affiliate transactions from public dissemination. The Commission believes instead that this issue can be addressed by requiring the dissemination of the date and time of execution on the last-sale report.[601] This requirement is designed to allow market observers to construct a time-sequenced record of all transactions in the security-based swap market and thereby counteract the possibility that certain transactions could be reported and publicly disseminated out of the order in which they were in fact executed.

Some commenters stated that inter-affiliate security-based swaps “are typically risk transfers with no market impact.” [602] This statement does not exclude the possibility that some inter-affiliate security-based swaps might have a market impact. The Commission sees no basis to conclude at this time that inter-affiliate security-based swaps do not provide price discovery value or other useful information to market observers. Market observers might be able to discern useful information from the last-sale reports of some inter-affiliate security-based swaps, and the Commission believes that market observers should be given the opportunity to do so—particularly given the Title VII mandate that all security-based swaps shall be publicly disseminated. The value of this information to market observers is unknown at this time, because market observers have never before had the opportunity to view comprehensive last-sale information from the security-based swap market. Suppressing all inter-affiliate security-based swaps from public dissemination would eliminate any potential that market observers could develop ways to utilize this information. Thus, under the final rules, market observers who wish to evaluate the entire record of transactions, including inter-affiliate transactions, will have the opportunity to do so. As discussed above, the Commission disagrees with the commenters who argued that “[r]equiring real-time reporting of inter-affiliate [security-based swaps] . . . would distort market information and thus have a detrimental market and commercial impact.” [603] Because such transactions will be flagged, market observers can simply—if they wish—remove from their analysis any transactions having an inter-affiliate flag.

The Commission sees one circumstance where public dissemination of an inter-affiliate transaction could have significant price discovery value: When the initial transaction is effected in a foreign jurisdiction without a public dissemination requirement and is not otherwise subject to public dissemination under Regulation SBSR, and the subsequent inter-affiliate transaction—between one of the original counterparties and one of its affiliate—would be publicly disseminated if it fell within Rule 908(a)(1). Commenters' views that public dissemination of an inter-affiliate transaction would be duplicative and distorting are premised on the view that the initial transaction is, in fact, publicly disseminated, which may not always be the case.[604] Therefore, public dissemination of the subsequent inter-affiliate transaction might be the only way for the market to obtain any pricing information about the related pair of transactions.[605] In the Cross-Border Proposing Release, the Commission specifically noted this Start Printed Page 14630circumstance and requested comment on it.[606] No commenters responded.

Finally, one commenter on the Cross-Border Proposing Release argued that the Commission should propose a comprehensive rule regarding inter-affiliate security-based swaps “before finalizing the substantive underlying rules governing the SBS markets.” [607] The commenter reasoned that “a separate proposed rule, like the Cross-Border Proposal, is necessary to ensure that market participants are accorded sufficient opportunity to comment on the interplay between the Commission's proposed rules and inter-affiliate trades.” [608]

The Commission notes that Regulation SBSR, as initially proposed, did not contemplate any exception for inter-affiliate security-based swaps, and the Regulation SBSR Proposing Release discussed at various points how proposed Regulation SBSR would apply to inter-affiliate transactions.[609] The Commission received comments regarding the reporting of inter-affiliate transactions in response to both the Regulation SBSR Proposing Release and the Cross-Border Proposing Release. Commenters on the Cross-Border Proposing Release's discussion of the application of Regulation SBSR to inter-affiliate security-based swaps did not raise any new issues that had not already been raised in response to the Regulation SBSR Proposing Release. In addition, as noted above, the Commission discussed in the Cross-Border Proposing Release the comments regarding inter-affiliate transactions submitted in response to the Regulation SBSR Proposing Release.[610] After carefully considering all of these comments, the Commission believes that commenters had sufficient opportunity to present their views on inter-affiliate transactions in Regulation SBSR and therefore it is appropriate at this time to adopt final rules relating to regulatory reporting and public dissemination of security-based swaps, including inter-affiliate security-based swaps.

X. Rule 903—Use of Codes

Regulation SBSR, as adopted, permits or, in some instances, requires security-based swap counterparties to report coded information to registered SDRs. These codes, known as unique identification codes (“UICs”), will be used to identify products, transactions, and legal entities, as well as certain business units and employees of legal entities.[611] Rule 903 of Regulation SBSR establishes standards for assigning and using coded information in security-based swap reporting and dissemination to help ensure that codes are assigned in an orderly manner and that regulators, market participants, and the public are able to interpret coded information stored and disseminated by registered SDRs.

A. Proposed Treatment of Coded Information

As initially proposed, Regulation SBSR would have established a process for assigning UICs in Rule 900 and addressed the standards for using coded information in Rule 903. Proposed Rule 900 would have provided that a “unique identification code” or “UIC” would be the unique code assigned to a person, unit of a person, or product by or on behalf of an internationally recognized standards-setting body (“IRSB”) that imposes fees and usage restrictions that are fair and reasonable and not unreasonably discriminatory. The proposed definition of “UIC” further would have provided that, if there existed no IRSB meeting these criteria, a registered SDR would have been required to assign all necessary UICs using its own methodology. Similarly, if an IRSB meeting the criteria existed but had not assigned a relevant UIC, the registered SDR would have been required to assign that UIC using its own methodology. When the Commission re-proposed Regulation SBSR as part of the Cross-Border Proposing Release, it designated the definition of “UIC” as re-proposed Rule 900(nn) but made no changes to the substance of the definition.[612]

Rule 903, as originally proposed, would have permitted the use of codes in place of certain data elements for purposes of reporting and publicly disseminating the information required under proposed Rules 901 and 902 of Regulation SBSR, provided that the information to interpret such codes is “widely available on a non-fee basis.” When the Commission re-proposed Rule 903, it replaced the term “reporting party” with “reporting side” but otherwise made no substantive revisions to the rule.[613]

B. Comments Received and Final Rule 903

1. Relocation of UIC Provisions Into Rule 903

Final Rule 903 is divided into paragraphs (a) and (b). Rule 903(a) sets out the requirements that registered SDRs must follow when assigning UICs. Similar requirements were initially proposed as part of the definition of “UIC” in Rule 900, and re-proposed without revision in Rule 900(nn). The Commission now believes that it would be more consistent with the overall structure of Regulation SBSR to move any substantive requirements from the definitions rule (Rule 900) and into an operative rule. Therefore, the Commission's substantive requirements for a registered SDR's use of UICs are now located in final Rule 903.[614] As described below, the Commission is adopting these requirements substantially as proposed, but with certain changes as described below. In particular, Rule 903(a), as adopted, includes new language regarding Commission recognition of international systems for assigning UICs. In addition, final Rule 903(a) provides that, if the Commission has recognized such a system that assigns UICs to persons, each participant of a registered SDR shall obtain a UIC from or through that system for identifying itself, and each participant that acts as a guarantor of a direct counterparty's performance of any obligation under a security-based swap that is subject to Rule 908(a) shall, if the direct counterparty has not already done so, obtain a UIC for identifying the direct counterparty from or through that system, if that system permits third-party registration without a requirement to obtain prior permission of the direct counterparty.

Final Rule 903(b) imposes certain restrictions on how coded information may be reported and publicly disseminated. Rule 903(b) substantially incorporates the earlier versions of Rule 903, with certain conforming and technical changes described below.

2. Comments Regarding UICs and Final Rule 903(a)

The Commission received several comments on the proposed rules relating to UICs and the development of internationally recognized LEIs generally. One commenter expressed concern that, absent a methodology Start Printed Page 14631outlined by a standard-setting body, multiple UICs could be assigned by different regulators to the same financial entity, thereby creating compliance burdens, operational difficulties, and opportunities for confusion.[615] Another commenter believed that, absent internationally recognized LEIs, requiring SDR-specific UICs would create inconsistencies among different SDRs.[616] This commenter recommended that the Commission postpone this requirement until an international taxonomy exists that can be applied consistently.[617] A third commenter stated that it is imperative that a single source of reference data and unambiguous identifiers be established.[618] A fourth commenter argued that “[s]ignificant progress in establishing the GLEIS has been made to date, and the time for further expanding the use of the LEI through rulemaking is favorable.” [619] A fifth commenter noted that the CFTC's swap reporting rules require the use of LEIs and urged the Commission, for the sake of clarity and consistency, to replace its reference to “unique counterparty identifiers” with “Legal Entity Identifiers,” unless the Commission's rule was intended to include identifiers beyond LEIs.[620] A sixth commenter suggested that the rules reflect primary use of the LEI as a party identifier and the need to use an LEI “when available,” recognizing that a reporting party may request but cannot compel its counterparties to obtain an LEI.[621]

The Commission is adopting in Rule 903(a) the provisions relating to the process for assigning UICs largely as proposed and re-proposed, but—reflecting the comments described above—is including two new requirements: (1) That the Commission recognize an IRSS before the use of UICs from that IRSS becomes mandatory under Regulation SBSR; and (2) that, if the Commission has recognized an IRSS that assigns UICs to persons, each participant of a registered SDR shall obtain a UIC from or through that IRSS. As noted below, the Commission is recognizing the GLEIS as an IRSS for assigning LEIs. Final Rule 903(a) states: “If an internationally recognized standards-setting system that imposes fees and usage restrictions on persons that obtain UICs for their own usage that are fair and reasonable and not unreasonably discriminatory and that meets the requirements of paragraph (b) of this section is recognized by the Commission and has assigned a UIC to a person, unit of a person, or product (or has endorsed a methodology for assigning transaction IDs), the registered security-based swap data repository shall employ that UIC (or methodology for assigning transaction IDs). If no such system has been recognized by the Commission, or a recognized system has not assigned a UIC to a particular person, unit of a person, or product (or has not endorsed a methodology for assigning transaction IDs), the registered security-based swap data repository shall assign a UIC to that person, unit of person, or product using its own methodology (or endorse a methodology for assigning transaction IDs). If the Commission has recognized such a system that assigns UICs to persons, each participant of a registered security-based swap data repository shall obtain a UIC from or through that system for identifying itself, and each participant that acts as a guarantor of a direct counterparty's performance of any obligation under a security-based swap that is subject to § 242.908(a) shall, if the direct counterparty has not already done so, obtain a UIC for identifying the direct counterparty from or through that system, if that system permits third-party registration without a requirement to obtain prior permission of the direct counterparty.” [622]

The Commission shares commenters' desire to have identifiers that are widely recognized, which would increase efficiency at both the SDR and market participant level. To avoid confusion about when an IRSS meets the standards of Rule 903, the Commission has modified the rule to provide that UICs issued by a particular IRSS would not become mandatory under Regulation SBSR unless the Commission has recognized the IRSS. As detailed below, the Commission is recognizing the GLEIS, applying the standards provided in Rule 903. The Commission will apply the standards provided in Rule 903 to any future assessment of whether an IRSS should be recognized as a provider of UICs for purposes of Regulation SBSR. Specifically, the Commission will consider whether the IRSS imposes fees and usage restrictions on persons that obtain UICs for their own usage that are fair and reasonable and not unreasonably discriminatory, and whether the information necessary to interpret the codes assigned by or through the IRSS is widely available to users of the information on a non-fee basis and without usage restrictions.[623]

Since Regulation SBSR was initially proposed in 2010, significant strides have been made in the development of a globally recognized LEI. The Commission hereby recognizes the GLEIS, which operates under a regulatory oversight committee (“ROC”), as an internationally recognized standards-setting system (“IRSS”) [624] that meets the requirements of Rule 903 of Regulation SBSR. The Commission notes that the LEI Regulatory Oversight Committee (“LEI ROC”) currently includes members that are official bodies from over 40 jurisdictions.[625] LEIs are being issued by over 30 pre-local operating units (“pre-LOUs”) around the globe, including the Global Markets Entity Identifier (“GMEI”) Utility in the United States.[626] Furthermore, the Commission believes that the GLEIS imposes fees and usage restrictions on persons that obtain UICs Start Printed Page 14632for their own usage that are fair and reasonable and not unreasonably discriminatory under Rule 903(a).[627] The Commission also understands that the GLEIS does not impose any fees for usage of or access to its LEIs, and that all of the associated reference data needed to understand, process, and utilize the LEIs are widely and freely available and not subject to any usage restrictions.[628] Therefore, the Commission believes that the LEIs issued by or through the GLEIS meet the standards of Rule 903(b), which are discussed in the section immediately below. The Commission also notes that it would expect to revisit its recognition of the GLEIS if the GLEIS were to modify its operations in a manner that causes it no longer to meet the standards of Rule 903. The Commission believes that the provisions of Rule 903—coupled with the Commission's recognition of the GLEIS—will facilitate the reporting and analysis of security-based swap transaction data, because (1) each participant of a registered SDR must be identified using the same LEI for all transactions reported pursuant to Regulation SBSR, and regardless of which registered SDR holds records of its transactions, and (2) a participant, when it acts as guarantor of a direct counterparty to a security-based swap that is subject to Rule 908(b), is required to obtain an LEI from or through the GLEIS if the direct counterparty does not already have an LEI and if the system permits third-party registration without a requirement to obtain prior permission of the direct counterparty.[629]

As noted above, one commenter recommended that, for clarity and consistency with the CFTC's swap reporting rules, the Commission refer to LEIs, rather than UICs, unless the Commission intended to include identifiers beyond LEIs.[630] Although the Commission agrees that the use of the term “LEI” would provide greater consistency with the CFTC's rules, Regulation SBSR continues to refer to UICs, rather than LEIs, for two reasons. First, as the commenter suggested, the term “UIC” in Regulation SBSR includes identifiers in addition to LEIs, such as identifiers for products, transactions, business units of legal entities (i.e., branches and trading desks), and individual traders.[631] Second, the GLEIS does not extend to natural persons or sub-legal entity business units, such as a branches and trading desks. Because at present the Commission has not recognized an IRSS for these types of UICs, a registered SDR is required to assign UICs to these entities using its own methodology. Thus, because Regulation SBSR refers to identifiers in addition to LEIs, Regulation SBSR continues to refer to UICs rather than LEIs.

The Commission acknowledges that, under final Rule 903(a), different registered SDRs could, in theory, assign different UICs to the same person, unit of a person, or product. Inconsistent UICs could require the Commission and other relevant authorities to map the UICs assigned by one registered SDR to the corresponding UICs assigned by other registered SDRs to obtain a complete picture of the market activity pertaining to a particular person or business unit.[632] Although mapping may present certain challenges, the Commission believes that this approach is better than the likely alternative of having market participants assign UICs to identify persons, units of persons, or products according to their own methodologies.[633] In other words, the Commission believes that UICs, even if they are SDR-specific, will provide a streamlined way of reporting, disseminating, and interpreting security-based swap information.[634] The Commission believes that requiring registered SDRs to develop their own UICs—but only for UICs that are not assigned by or through an IRSS that has been recognized by the Commission—will result in less confusion than the currently available alternatives, such as allowing each reporting side to utilize its own nomenclature conventions, which would subsequently have to be normalized by registered SDRs themselves or by the Commission.

The Commission further understands that, at this time, neither the GLEIS nor any other IRSS has assigned product IDs or established a methodology for assigning transaction IDs. Therefore, a registered SDR also is required under Rule 903(a) to assign, or endorse a methodology for assigning, product IDs and transaction IDs. One commenter recommended that “industry utilities” be considered for assigning unique IDs, including transaction IDs and product IDs.[635] With respect to product IDs, Rule 903(a) provides a registered SDR with flexibility to assign a product ID created by an industry utility, in the absence of an IRSS recognized by the Commission that issues product IDs. Thus, if an industry utility developed product IDs,[636] a registered SDR could endorse that industry utility as the means for assigning such product IDs, and require use of those product IDs for reporting and publicly dissemination transaction information in its policies and procedures required by Rule 907(a).

With respect to transaction IDs, a registered SDR—in the absence of an IRSS recognized by the Commission that has endorsed a methodology for assigning transaction IDs—is required to Start Printed Page 14633assign transaction IDs or endorse a methodology for assigning transaction IDs.[637] A number of commenters recommended that Regulation SBSR permit transaction IDs generated by persons other than a registered SDR.[638] The Commission generally agrees with these comments, and has revised the UIC provisions relating to transaction IDs as follows. Although Rule 900, as proposed and re-proposed, would have defined “transaction ID” as “the unique identification code assigned by registered security-based swap data repository to a specific security-based swap,” the definition of “UIC” in proposed Rule 900(nn) did not mention transaction IDs. The final definition of “UIC” includes transaction IDs in addition to identification codes for persons, units of persons, and products. The final definition of “transaction ID” is “the UIC assigned to a specific security-based swap transaction,” without the limitation that it be assigned by a registered SDR. The Commission agrees with these commenters that requiring a registered SDR to use transaction IDs assigned only by a registered SDR would not be practical. The Commission believes that it would be more efficient and consistent with current practice in the security-based swap market to allow transaction IDs to be assigned at or shortly after execution, by a counterparty, platform, or post-trade processor. Final Rule 903(a) includes language that contemplates that an IRSS or registered SDR may “endorse a methodology for assigning transaction IDs.” This formulation makes clear that transaction IDs need not be assigned by an IRSS or registered SDR itself, but can be assigned by security-based swap counterparties, platforms, or post-trade processors using the IRSS's or registered SDR's methodology. Any entity that assigns the transaction ID must do so in accordance with the methodology endorsed by a recognized IRSS or, in the absence of a recognized IRSS that has endorsed a methodology for assigning transaction IDs, by the registered SDR that will receive the report of the transaction.[639]

Two commenters addressed the types of entities that can act as IRSSs. One of these commenters recommended that for-profit entities be permitted to act as reference data registration authorities,[640] while the other commenter argued that LEIs should be issued by a not-for-profit entity that operates on the principle of cost recovery, and that the industry should determine the appropriate model for cost recovery.[641] The Commission does not believe that it is necessary or appropriate to specify the type of entity—for-profit or non-profit—that can establish or operate an IRSS. Whichever the case, final Rule 903(a) specifies that the UICs issued by an IRSS may be used under Regulation SBSR only if the IRSS that imposes fees and usage restrictions that are fair and reasonable and not unreasonably discriminatory and that meets the criteria of Rule 903(b) has been recognized by the Commission. In other words, the overall character of the IRSS's operation does not matter for purposes of compliance with Regulation SBSR (i.e., whether it is a for-profit or non-profit entity) so long as any fees and usage restrictions imposed with respect to UICs meets the requirements of Rule 903(a). In addition, any codes used as, or as part of, UICs under Regulation SBSR must meet the standards of Rule 903(b), which are described below.

3. Comments on Proposed Rule 903 and Final Rule 903(b)

Commenters expressed differing views regarding whether the providers of UICs—and product IDs in particular—should be able to charge fees for the codes or for the information necessary to interpret the codes. One commenter supported the proposed requirement that information necessary to interpret reported or publicly disseminated codes be available free of charge.[642] However, a second commenter—a provider of product identification codes for security-based swaps—stated that Regulation SBSR should not require product identifiers to be freely available.[643] This commenter noted that maintaining a reliable identification system for security-based swaps requires a substantial level of investment, and recommended that the providers of product identification codes be permitted to charge commercially reasonable fees for developing and maintaining the codes.[644] A third commenter recommended that existing licensing codes be used for product IDs to the extent possible, because using existing codes would be easier for registered SDRs; the use of new codes would require ongoing maintenance and the development of specific processes for reporting, which could result in poorer quality data submissions.[645]

After careful consideration of these comments, the Commission continues to believe that the information necessary to interpret any codes used by registered SDRs must be “widely available on a non-fee basis.” Thus, the Commission is adopting this key feature of Rule 903(b) as proposed and re-proposed. A primary goal of Title VII is to use reporting and public dissemination of security-based swap data as a means of monitoring risks and increasing transparency, both to regulators and the public, of the security-based swap markets. If the transaction data that are reported and publicly disseminated contain codes and the information necessary to interpret such codes is not widely available on a non-fee basis, these Title VII goals could be frustrated. In the absence of Rule 903(b), a registered SDR could require—or acquiesce in the use of—proprietary, fee-based identification codes, thereby requiring all users of the security-based swap market data to pay the code creator, directly or indirectly, for the information necessary to interpret the codes. Users of the data also might be subject to usage restrictions imposed by the code creator.

Currently, the security-based swap market data typically include fee-based codes, and all market participants and market observers must pay license fees and agree to various usage restrictions to Start Printed Page 14634obtain the information necessary to interpret the codes. The Commission believes that allowing continuation of the status quo would not satisfy the Title VII mandate to increase security-based swap market transparency through public dissemination. If information to understand embedded codes is not widely available on a non-fee basis, information asymmetries would likely continue to exist between large market participants who pay for the codes and others market participants. One commenter suggested that alternatives could be developed to the status quo of using fee-based codes in security-based swap market data.[646] The Commission welcomes the development of such alternatives, and believes that Rule 903(b), as adopted, will likely encourage such development.

Furthermore, the Commission believes that the public dissemination requirements in Title VII should allow observers of the market to incorporate the information contained in public reports of security-based swaps into any decisions they might take regarding whether and how to participate in the market (or even to avoid participation), and for intermediaries in the market to incorporate this information to provide better advice to their clients about the market. The Commission does not believe that these objectives would be advanced if the ability of market participants to understand public reports of security-based swap transactions were conditioned on agreeing to pay fees to a code creator. The Commission similarly believes that subjecting the public's use of this information to restrictions imposed by a code creator also could frustrate the objectives of public dissemination. In addition, allowing continuation of the status quo would retard the ability of the Commission and other relevant authorities to obtain and analyze comprehensive security-based swap information.

The Commission recognizes the usefulness of codes. They make reporting more efficient because providing just one code—a product ID, for example—can eliminate the need to report multiple data elements individually. Codes also facilitate the standardized representation of security-based swap data and thereby make reporting (and understanding reported data) more reliable and efficient.[647] With respect to product IDs specifically, the Commission believes that unless an IRSS has been recognized by the Commission and can assign product IDs, registered SDRs should be free to choose between using an existing mechanism for assigning product IDs—assuming it is consistent with Rule 903(b)—and developing a new product classification system. If all existing product identification codes require users of the transaction information to pay a fee, then a registered SDR may not require or permit use of those codes for reporting and public dissemination. The registered SDR would be required to issue UICs using its own methodology and make the information necessary to interpret those codes available on a non-fee basis.

In light of the requirement in Rule 903(b) that the information necessary to interpret coded information be widely available on a non-fee basis, it would be inconsistent with the rule for a registered SDR to permit information to be reported pursuant to Rule 901, or to publicly disseminate information pursuant to Rule 902, using codes in place of certain data elements if the registered SDR imposes, or permits the imposition of, any usage restrictions on the disseminated information. The purpose of Rule 903(b) is to help ensure that the public is able to utilize the last-sale information provided by Regulation SBSR without limitation or expense.

The commenter that provides product identification codes for security-based swaps also noted that proposed Regulation SBSR would allow an IRSB that develops counterparty identifiers to charge fees, and believed that providers of product IDs should receive comparable treatment.[648] In response to this comment, the Commission believes that it is appropriate to make minor revisions to the rule language to clarify its original intent and thereby eliminate any apparent contradiction between the two paragraphs of Rule 903. When the Commission originally proposed that an IRSB could impose fees and usage restrictions as long as they were fair and reasonable and not unreasonably discriminatory, the Commission intended that language to apply to persons that obtain UICs for their own usage (such as a legal entity that seeks to identify itself as a counterparty when engaging in security-based swap transactions), not ultimate users of the information (such as third parties who might wish to enter into a security-based swap with that entity as the reference entity). The Commission believes that this distinction is consistent with international efforts to develop a global LEI.[649]

In Rule 903(a), as adopted, the Commission is inserting after the words “fees and usage standards” the new words “on persons that obtain UICs for their own usage.” [650] This language clarifies that it is consistent with Rule 903(a) for a registered SDR to accept codes for which the code creator assesses fair and reasonable fees on market participants that need to identify themselves, their agents, or parts of their organizations when engaging in financial activities. For example, Rule 903(a) would permit a registered SDR to charge participants that need to acquire UICs that are assigned by registered SDRs, such as counterparty IDs, ultimate parent IDs, branch IDs, trading desk IDs, and trader IDs.

In Rule 903(b), as adopted, the Commission is inserting the words “to users of the information” immediately Start Printed Page 14635after the phrase “widely available.” [651] The users of information referred to in final Rule 903(b) could include the Commission, other relevant authorities, or any person who wishes to view or utilize the publicly disseminated security-based swap transaction data for any purpose. As noted above, the Commission does not believe that access to this information should be impeded by having to pay fees or agree to usage restrictions in order to understand any coded information that might be contained in the transaction data.

The Commission notes that Rule 903(b) prevents registered SDRs and code creators from impeding a person's ability to obtain the information necessary to interpret coded information used in reporting or public dissemination under Regulation SBSR. Rule 903(b) is not intended to prevent a registered SDR from charging for its SDR services. To the contrary, registered SDRs are expressly permitted to charge fees for their SDR services that are fair and reasonable and not unreasonably discriminatory.[652]

The Commission notes that it is making an additional revision to the language in re-proposed in Rule 903 to conform final Rule 903(b) to the Commission's original intent and to avoid any potential conflict with final Rule 901(h). Rule 901(h), as adopted, provides that the reporting side shall electronically transmit the information required under Rule 901 to a registered SDR “in a format required by the registered [SDR].” Under re-proposed Rule 903, the reporting side could “provide information to a registered [SDR] . . . using codes in place of certain data elements.” [653] This language in re-proposed 903 could have been read to give the reporting side discretion to select what codes it could use for reporting transaction information to a registered SDR., The Commission has revised final Rule 903(b) to more clearly reflect its original intent: That reporting sides shall report information in a format required by the registered SDR.[654] Thus, Rule 903(b), as adopted, provides that a registered SDR “may permit information to be reported . . . using codes in place of certain data elements.” The Commission believes that final Rule 903(b), read together with final Rule 901(h), makes clear that a reporting side may provide coded information to a registered SDR only to the extent permitted by the registered SDR and only in a format required by the SDR. Therefore, the reporting side may not exercise its own discretion when selecting codes to use in its reports to the registered SDR, regardless of whether the codes otherwise comport with Rule 903.

Finally, one commenter expressed concern that, although Regulation SBSR, as initially proposed, would have required that the information necessary to interpret codes be made available for free, the proposal would not have prevented a code creator from charging for other uses.[655] In this commenter's view, “[a] widely used identifier can become a de facto standard for anyone doing business in the relevant marketplace. This creates the potential for abuse, defeating the entire purpose of promoting the broad availability of identifiers.” [656] This commenter believed instead that, “[a]s long as all market participants have the unfettered freedom to introduce alternative identifiers and to map those identifiers to the standard, however, multiple, competing identifiers can provide an inexpensive solution.” [657] The Commission shares the commenter's concern that identification codes not become a tool for monopolistic abuse. This is why the Commission is requiring in Rule 903(b) that, if such codes will be used for reporting or publicly disseminating security-based swap transaction data, “the information necessary to interpret such codes [must be] widely available to users of the information on a non-fee basis.” Thus, the Commission does not believe it will be necessary for market participants to introduce alternative identifiers, although Regulation SBSR would not prohibit them from doing so.

C. Policies and Procedures of Registered SDRs Relating to UICs

As proposed and re-proposed, Rule 907(a)(5) would have required a registered SDR to establish and maintain written policies and procedures for assigning: (1) A transaction ID to each security-based swap that is reported to it; and (2) UICs established by or on behalf of an IRSB that imposes fees and usage restrictions that are fair and reasonable and not unreasonably discriminatory (or, if no standards-setting body meets these criteria or a standards-setting body meets these criteria but has not assigned a UIC to a particular person, unit of a person, or product, assigning a UIC using its own methodology).

The Commission received several comments, noted above, that discussed utilization of UICs generally and considered them in connection with Rule 907(a)(5).[658] The Commission also received a comment that generally encouraged the Commission to adopt a convention for assigning unique IDs and incorporating a pilot or early adopter program for certain products and participants that would allow for end-to-end testing and proof of concept.[659]

As discussed above, the Commission believes that UICs—even if utilized on an SDR-specific basis in the absence of UICs issued by a recognized IRSS—will create a more consistent and transparent system for reporting and analyzing security-based swap transactions. Therefore, the Commission continues to believe that it is important for registered SDRs to have policies and procedures providing for the issuance of such UICs and is adopting a modified version of Rule 907(a)(5) that requires registered SDRs to establish written policies and procedures “[f]or assigning UICs in a manner consistent with [Rule 903].” This is a conforming change to be consistent with the Commission's decision to locate the substantive requirements for the assignment of UICs in Rule 903.[660] With respect to the comment received, the Commission believes that market participants can work with entities that are likely to register with the Commission as SDRs on pilot programs for certain products and conventions for assigning UICs. However, the Commission does not believe it would be appropriate for the Commission itself to adopt such Start Printed Page 14636conventions; the Commission believes instead that greater expertise in coding data will reside in the industry and, in particular, at registered SDRs. The Commission further believes that Rule 900(qq), which defines “UIC,” and Rule 903, which establishes standards for the use of UICs provide adequate parameters for the development of a UIC system. The Commission believes that allowing the industry to develop conventions for assigning UICs will likely result in a more efficient and flexible UIC regime than if the Commission were to adopt such conventions itself.

XI. Operating Hours of Registered SDRs—Rule 904

Title VII of the Dodd-Frank Act does not explicitly address or prescribe the hours of operation of the reporting and public dissemination regime that it requires. The security-based swap market is global in nature, and security-based swaps are executed throughout the world and at any time of the day. In light of the global nature of the security-based swap market, the Commission believes that the public interest is served by requiring near-continuous reporting and public dissemination of security-based swap transactions, no matter where or when they are executed (subject to the cross-border rules discussed in Section XV, infra). Furthermore, having a near-continuous reporting and public dissemination regime would reduce the incentive for market participants to defer execution of security-based swap transactions until after regular business hours to avoid post-trade transparency. Accordingly, the Commission proposed Rule 904, which would have required a registered SDR to design its systems to allow for near-continuous receipt and dissemination of security-based swap data. A registered SDR would have been permitted to establish “normal closing hours” and to declare, on an ad hoc basis, “special closing hours,” subject to certain requirements. Rule 904 was not revised as part of the Cross-Border Proposing Release, and was re-proposed in exactly the same form as initially proposed.

As discussed below, three commenters addressed proposed Rule 904. The Commission has carefully reviewed the comments received and has determined to adopt Rule 904, as proposed and re-proposed, subject to one conforming change, as discussed below.[661]

Rule 904, as adopted, requires a registered SDR to have systems in place to receive and disseminate information regarding security-based swap data on a near-continuous basis, with certain exceptions. First, under final Rule 904(a), a “registered SDR may establish normal closing hours when, in its estimation, the U.S. market and major foreign markets are inactive.” Second, under final Rule 904(b), a registered SDR “may declare, on an ad hoc basis, special closing hours to perform system maintenance that cannot wait until normal closing hours.” Rule 904(b) further provides that a registered SDR shall, “to the extent reasonably possible under the circumstances, avoid scheduling special closing hours during [periods] when, in its estimation, the U.S. market and major foreign markets are most active.” Rules 904(a) and 904(b) each require the registered SDR to provide participants and the public with reasonable advance notice of its normal closing hours and special closing hours, respectively.

Rule 904(c) specifies requirements for handling and disseminating reported data during a registered SDR's normal and special closing hours. During normal closing hours and, to the extent reasonably practicable during special closing hours, a registered SDR is required to “have the capability to receive and hold in queue” the transaction data that it receives. Pursuant to Rule 904(d), immediately upon system re-opening following normal closing hours or special closing hours (assuming it was able to hold incoming data in queue), the registered SDR is required to publicly disseminate any transaction data required to be reported under Rule 901(c) that it received and held in queue. Finally, pursuant to Rule 904(e), if the registered SDR could not, while it was closed, receive and hold in queue reported information, it would be required, immediately upon resuming normal operations, to send a notice to all participants that it had resumed normal operations but could not, while closed, receive and hold in queue such transaction information. Therefore, any participant that had an obligation to report information—but was unable to do so because of the registered SDR's inability to receive and hold data in queue—would be required upon notification by the registered SDR to promptly report the information to the registered SDR.

As proposed and re-proposed, Rule 904(e) would have provided that if a participant could not fulfil a reporting obligation due to a registered SDR's inability to receive and hold data in queue, the participant would be required to report the information “immediately” upon receiving a notification that the registered SDR has resumed normal operations. The Commission has decided to replace the word “immediately” with the word “promptly” in the final rule because “promptly” emphasizes the need for information to be submitted without unreasonable delay while affording participants a practical degree of flexibility. In general, the Commission believes that submitting a required report “promptly” implies “as soon as practicable.”

The three commenters that addressed Rule 904 were generally supportive of the goal of promoting transparency and price discovery though a regime of continuous reporting and public dissemination,[662] although one of these commenters pointed out the need for registered SDRs to close periodically to perform necessary system maintenance.[663] Two of these commenters also suggested alternative operating hours and procedures for registered SDRs.[664] One commenter stated that the requirements that a registered SDR have normal closing hours only when neither U.S. nor international markets are active, and should continue to receive the relevant transaction data and hold them in queue even when the registered SDR is closed for normal or ad hoc special closing hours, exceeded the capabilities of currently existing reporting infrastructures. The commenter argued that such requirements would increase the risk of infrastructure failure because SDRs would not have adequate time to maintain and update their systems.[665] This commenter suggested that, if systems are required to be available on a 24-hour basis, the Commission should define operating hours to be 24 hours from Monday to Friday, and consider allowing additional closing hours either “when markets are less active” or “when only less active markets are open.” [666]

The Commission believes there are compelling reasons to implement a system of reporting and public dissemination that, in general, operates near-continuously. As discussed above, Start Printed Page 14637the Commission believes that requiring near-continuous reporting and public dissemination of security-based swaps—except for when, in the estimation of a registered SDR, the U.S. market and major foreign markets are inactive—will serve the public interest and reduce incentives for market participants to trade outside of regular business hours. The Commission, however, recognizes the need for a registered SDR to have closing hours to maintain and update its systems, and Rules 904(a) and 904(b), as adopted, specifically allow registered SDRs to have normal and special closing hours. Further, while Rule 904(b) states that a registered SDR should avoid scheduling special closing hours during a time when, in its estimation, the U.S. and major foreign markets are most active, the Commission notes that a registered SDR is required to do so only “to the extent reasonably possible under the circumstances.” As such, the Commission believes that Rules 904(a) and 904(b) provide sufficient flexibility to registered SDRs in determining their closing times to perform the necessary maintenance procedures. The Commission does not believe it would be appropriate to require registered SDRs to operate 24 hours only from Monday to Friday, as the commenter suggests, as certain major foreign markets may be active during hours that fall within the weekend in the United States.

The Commission recognizes the commenter who asserted that the proposed requirement for a registered SDR to receive and hold in the queue the data required to be reported during its closing hours “exceeds the capabilities of currently-existing reporting infrastructures.” [667] The Commission notes that this comment was submitted in January 2011. Since that time, however, provisionally registered CFTC SDRs that are likely also to register as SDRs with the Commission appear to have developed the capability of receiving and holding data in queue during their closing hours.[668] Accordingly, the Commission believes that it is appropriate to require registered SDRs to hold data in queue during their closing hours should help to prevent market disruptions by enabling reporting sides for security-based swaps to report transactions at all times.

XII. Subsequent Revisions to Reported Security-Based Swap Information

A. Reporting Life Cycle Events—Rule 901(e)

1. Description of Proposal and Re-Proposal

Rule 901(e), as proposed and re-proposed, would have required the reporting of certain life cycle event information. “Life cycle event” was defined in the proposal and re-proposal to mean “with respect to a security-based swap, any event that would result in a change in the information reported to a registered security-based swap data repository under § 242.901, including a counterparty change resulting from an assignment or novation; a partial or full termination of the security-based swap; a change in the cash flows originally reported; for a security-based swap that is not cleared, any change to the collateral agreement; or a corporate action affecting a security or securities on which the security-based swap is based (e.g., merger, dividend, stock split, or bankruptcy). Notwithstanding the above, a life cycle event shall not include the scheduled expiration of the security-based swap, a previously described and anticipated interest rate adjustment (such as a quarterly rate adjustment), or other event that does not result in any change to the contractual terms of the security-based swap.”

Re-proposed Rule 901(e) would have provided that “For any life cycle event, and any adjustment due to a life cycle event, that results in a change to information previously reported pursuant to Rule 901(c), 901(d), or 901(i), the reporting side shall promptly provide updated information reflecting such change to the entity to which it reported the original transaction, using the transaction ID,” subject to two exceptions. Under Rule 901(e)(1), as re-proposed, if the reporting side ceased to be a counterparty to the security-based swap due to any assignment or novation and if the new side included a U.S. person, a security-based swap dealer, or a major security-based swap participant, the new side would be the reporting side following the assignment or novation. Under re-proposed Rule 901(e)(2), if the new side did not include a U.S. person, a security-based swap dealer, or a major security-based swap participant, the other side would be the reporting side following the assignment or novation.

In proposing Rule 901(e), the Commission preliminarily believed that the reporting of life cycle event information would provide regulators with access to information about significant changes that occur over the duration of a security-based swap.[669] The Commission also stated that the reporting of life cycle event information would help to assure that regulators have accurate and up-to-date information concerning outstanding security-based swaps and the current obligations and exposures of security-based swap counterparties.[670]

In determining the entity that would be required to report life cycle event information, the Commission's approach in proposing and re-proposing Rule 901(e) was that, generally, the person who originally reported the initial transaction would have the responsibility to report any subsequent life cycle event.[671] However, if the life cycle event were an assignment or novation that removed the original reporting party, either the new counterparty or the remaining original counterparty would have to be the reporting party.[672]

In re-proposing Regulation SBSR, the Commission included the new concept of a “reporting side,” which would have included the direct counterparty and any indirect counterparty. The Cross-Border Proposing Release also proposed to impose greater duties to report transactions on non-U.S. person security-based swap dealers or major security-based swap participants. Accordingly, the Commission re-proposed Rule 901(e) to provide that the duty to report would switch to the other side only if the new side did not include a U.S. person (as in the originally proposed rule) or a security-based swap dealer or major security-based swap participant. The Commission preliminarily believed that, if the new side included a security-based swap dealer or major security-based swap participant, the new side should retain the duty to report. This approach was designed to align reporting duties with the market participants that the Commission believed would be better Start Printed Page 14638suited to carrying them out, because non-U.S. person security-based swap dealers and major security-based swap participants likely would have taken significant steps to establish and maintain the systems, processes and procedures, and staff resources necessary to report security-based swaps.[673]

2. Final Rules Relating to Life Cycle Events and Response to Comments

a. General Comment and Definition of “Life Cycle Event”

One commenter expressed support for the requirement to report life cycle event information, stating that the reporting of life cycle event information was necessary for detailed market regulation and for prudential and central bank regulation.[674] The commenter noted that “[m]any life cycle events are price-forming or significantly change the exposures under a trade. . . .” [675] In subsequent comment letters, this commenter stated that the definition of “life cycle event” was overly broad, and that life cycle events should be limited to those that impact the counterparties to or the pricing of the security-based swap.[676] Specifically, the commenter suggested that the Commission define “life cycle event” to mean “an event that would result in a change in the counterparty or price of a security-based swap reported to the registered [SDR].” [677] However, another commenter believed that the proposed definition was “clear, sufficient, and complete.” [678]

After careful consideration, the Commission is adopting the definition of “life cycle event” in Rule 900(q) substantially as re-proposed, but with certain minor modifications to respond to comments and to clarify the original intent of the rule.[679] First, the Commission is making a technical change to the definition to indicate that a life cycle event refers to any event that would result in a change in the information reported “under § 242.901(c), (d), or (i),” rather than any event that would result in a change in the information reported “under § 242.901” (as re-proposed). This technical change will conform the definition of “life cycle event” to the requirements of Rule 901(e), as re-proposed and as adopted, which requires the reporting of a change to information previously reported pursuant to paragraph (c), (d), or (i) of Rule 901. By defining “life cycle event” in this manner, the Commission aims to ensure that information reported pursuant to Rules 901(c), (d), and (i) is updated as needed, so that the data maintained by registered SDRs remains current for the duration of a security-based swap. This requirement should help to ensure that the data accessible to the Commission through registered SDRs accurately reflects the current state of the market. Therefore, the Commission does not believe that it is appropriate to limit the definition of “life cycle event” to post-execution events that impact the counterparties to or the pricing of a security-based swap, as suggested by the commenter.[680] Although the final definition of “life cycle event” encompasses these types of events, it also encompasses other information reported pursuant to Rules 901(c), 901(d), or 901(i).

One commenter asked that the Commission remove the reference to “dividends” in the definition of “life cycle event” because dividends “are contract intrinsic events that do not result in a change to the contractual terms of the SBS and therefore, should not be defined as reportable life cycle events.” [681] The Commission does not believe that it is necessary to revise the definition of “life cycle event” as the commenter suggests. As indicated above, the definition of “life cycle event” provides, in relevant part, that a life cycle event includes “any event that would result in a change in the information reported to a registered [SDR] . . . including . . . a corporate action affecting a security or securities on which the security-based swap is based (e.g., a merger, dividend, stock split, or bankruptcy)” (emphasis added). Thus, a regular payment of a dividend that does not require a restatement of the terms of the security-based swap would not constitute a life cycle event. However, other actions involving dividends could be life cycle events. For example, the distribution of a stock dividend that required an adjustment to the notional terms of an equity security-based swap—or any other corporate action related to dividends that resulted in a modification of one or more terms of the security-based swap—would be a life cycle event and therefore would have to be reported pursuant to Rule 901(e).

Second, the Commission is clarifying that a life cycle event includes “an assignment or novation of the security-based swap,” instead of “a counterparty change resulting from an assignment or novation.” The Commission notes that, while assignments and novations necessarily include a counterparty change, assignments and novations also may involve modifications to other terms of the security-based swap reported pursuant to paragraphs (c), (d), or (i) of Rule 901. These modifications are the type of changes that the Commission believes should be reported to a registered SDR; therefore, the Commission is modifying the definition of “life cycle event” to clarify this view.

Third, the Commission is making a technical change to the definition to indicate that a life cycle event includes, for a security-based swap that is not a clearing transaction, “any change to the title or date of any master agreement, collateral agreement, margin agreement, or any other agreement incorporated by reference into the security-based swap contract.” As re-proposed, the definition of “life cycle event” would have included, “for a security-based swap that is not cleared, any change to the collateral agreement.” One commenter questioned the need to include a reference to a change in the collateral agreement in the definition of “life cycle event” because “collateral agreement terms are not among the data required to be reported upon execution.” [682] The Commission agrees with the commenter that collateral agreement terms are not Start Printed Page 14639required to be reported, and the definition of “life cycle event” in final Rule 900(q) no longer refers to changes in the collateral agreement. To assure that Rule 901(e) operates as intended, the Commission has modified the definition of “life cycle event” in final Rule 900(q) to reference, with respect to a security-based swap that is not a clearing transaction, the same terms that must be reported pursuant to Rule 901(d)(4).[683] Thus, if there were a change in the title or date of a master agreement, collateral agreement, margin agreement, or other agreement incorporated by reference into a security-based swap contract, such a change would be a “life cycle event” as defined in final Rule 900(q), and final Rule 901(e) would require reporting of that change.

Finally, two commenters argued that the “Commission's classification of a swap being accepted for clearing as a life cycle event is inconsistent with the operations of a Clearing Agency” because clearing may require the “termination of the pre-existing alpha swap in order to create two new, unique swaps.” [684] The Commission agrees that any security-based swap that results from clearing an alpha should not be considered a life cycle event of the alpha, although the termination of the alpha would be such a life cycle event.[685] The Commission believes that the new term “clearing transaction” makes clear that security-based swaps that result from clearing (e.g., betas and gammas in the agency model) are independent security-based swaps, not life cycle events of the security-based swap that is submitted to clearing (e.g., alpha security-based swaps).

b. Final Rule 901(e)(1)

As described above, re-proposed Rule 901(e) would have required the reporting side to promptly report any life cycle event, or any adjustment due to a life cycle event, that resulted in a change to information previously reported pursuant to Rule 901(c), (d), or (i) to the entity to which it reported the original transaction, using the transaction ID. Rule 901(e), as proposed and re-proposed, also included provisions for determining which counterparty would report the life cycle event. The Commission is adopting a modified version of Rule 901(e) to address comments received and to implement certain technical changes. The Commission also has changed the title of the rule from “Duty to report any life cycle event of a security-based swap” in the re-proposal to “Reporting of life cycle events” in the final rule. In addition, final Rule 901(e) provides that a life cycle event or adjustment due to a life cycle event must be reported within the timeframe specified in Rule 901(j).

Although the definition of “life cycle event” would encompass the disposition of a security-based swap that has been submitted to clearing (e.g., whether, under the agency model of clearing, the alpha security-based swap has been accepted for clearing or rejected by the clearing agency), the Commission believes that it is appropriate to address the reporting of this specific type of life cycle event in the context of the Regulation SBSR Proposed Amendments Release, which address a number of topics regarding the reporting of security-based swaps that will be submitted to clearing or that have been cleared. Accordingly, final Rule 901(e)(1)(i) indicates that the reporting side shall not have a duty to report whether or not a security-based swap has been accepted for clearing or terminated by a clearing agency, and instead provides that “A life cycle event, and any adjustment due to a life cycle event, that results in a change to information previously reported pursuant to paragraph (c), (d), or (i) of this section shall be reported by the reporting side, except that the reporting side shall not report whether or not a security-based swap has been accepted for clearing.”

c. Final Rule 901(e)(2)

Re-proposed Rule 901(e) would have required the reporting side to include the transaction ID in a life cycle event report, and to report life cycle event information to the entity to which it reported the original transaction. Final Rule 901(e)(2) retains both of these requirements.[686] The Commission believes that including the transaction ID in a life cycle event report will help to ensure that it is possible to link the report of a life cycle event to the report of the initial security-based swap of which it is a life cycle event. One commenter supported the requirement to report life cycle events to the same entity that received the original transaction report.[687] The commenter stated that requiring a single registered SDR to receive, store, and report, where appropriate, all relevant information related to a given security-based swap throughout its life cycle would help to prevent fragmentation and ensure that corrections to previously reported data could be easily identified by the public.[688] The Commission generally agrees with these views, and final Rule 901(e)(2) retains the requirement to report life cycle events to the same entity to which the original transaction was reported.

d. Reporting Timeframe for Life Cycle Events

Rule 901(e), as proposed and re-proposed, would have required life cycle events to be reported by the reporting side “promptly.” Two commenters believed that it was appropriate to require that life cycle events be reported “promptly.” [689] One of these commenters also stated that life cycle events could require different processing times based on the nature of the event, and asked the Commission to clarify the meaning of “promptly” with respect to life cycle event reporting.[690] In particular, the commenter stated that “the term `promptly,' . . . without further explanation, may be interpreted by reporting parties differently for similar events and processes, particularly in a market where certain processes have historically taken a Start Printed Page 14640number of days to effect.” [691] This commenter also suggested that the Commission revise Rule 901(e) to allow for the flexibility of reporting life cycle events either event-by-event or through one daily submission that would include multiple events.[692] Another commenter stated that the required time for reporting both life cycle events and corrections should be stronger and more specific than the proposed requirement that they be reported “promptly.” [693]

After careful consideration, the Commission does not believe that it would be appropriate to require life cycle events or adjustments due to life cycle events to be reported more quickly than the time within which information relating to the original transaction must be reported. As noted in Section VII(B)(3), supra, final Rule 901(j) provides that the transaction information required by Rules 901(c) and 901(d) generally must be reported within 24 hours of the time of execution. Similarly, Rule 901(j) provides that the reporting timeframe for Rule 901(e) shall be 24 hours after the occurrence of the life cycle event or the adjustment due to the life cycle event. The Commission believes that 24 hours should provide sufficient time to report life cycle events even if the processing of some of these events is not yet fully automated.[694] The Commission believes, further, that specifying a time within which life cycle event information must be reported will address the commenter's concern that reporting sides could adopt different interpretations of the reporting timeframe. The Commission notes that it anticipates soliciting comment on the timeframe for reporting life cycle events, adjustments, and clearing transactions in the future, when it considers block thresholds and time delays.

e. Re-Proposed Rule 901(e)(2)

The Commission has determined not to adopt re-proposed Rule 901(e)(2), which would have specified the reporting side following an assignment or novation of the security-based swap.[695] One commenter noted that, under the current market practice for reporting novations, the reporting party is re-determined based on the current status of the parties.[696] This commenter noted that the current practice allows the reporting party logic to be consistent for new as well as novated trades, and recommended that the Commission use a consistent methodology for reporting of new trades and novations. The Commission agrees that using a single methodology for assigning reporting obligations would be administratively easier than using one methodology when a security-based swap is first executed and a different methodology when the counterparties change as a result of an assignment or novation. As the Commission explained above,[697] it has determined that the reporting side following an assignment or novation will be determined using the procedures in Rule 901(a).

f. Additional Comments Regarding Life Cycle Event Reporting

One commenter believed that life cycle events should be reported using standard market forms, such as the trade confirmation for novations and early terminations, and the exercise notice for an exercise.[698] Contrary to the commenter's suggestion, the Commission believes that registered SDRs should be responsible for specifying the precise manner and format for reporting data. Moreover, the Commission understands that standard market forms may exist for some, but not all, of the life cycle events that must be reported under Regulation SBSR. Therefore, the Commission has determined not to prescribe a format for reporting sides to report life cycle event information. Instead, Rule 907(a)(3), as adopted, requires a registered SDR to establish and maintain written policies and procedures that specify how reporting sides are to report life cycle events and corrections to previously submitted information, for making corresponding updates or corrections to transaction records, and for applying an appropriate flag to these transaction reports.[699]

One commenter stated that it was critical for the SEC and the CFTC to adopt consistent regulatory approaches “[i]n the life cycle event model across asset classes.” [700] The Commission agrees that would be useful for the Commissions to adopt consistent approaches to the reporting of life cycle event information to the extent possible. The Commission believes that Regulation SBSR's approach to life cycle event reporting is broadly consistent with the approach taken by the CFTC. For example, because the agencies have adopted similar definitions, the life cycle event information required to be reported under the rules of both agencies is substantially similar.[701] In addition, both agencies' rules require that life cycle events be reported to the same entity that received the report of the original transaction, and both agencies' rules require the entity that reports the initial transaction to also report life cycle events for the transaction. The Commission notes that a registered SDR that accepts transaction reports for both swaps and security-based swaps could establish policies and procedures for reporting life cycle events of security-based swaps that are comparable to its policies and Start Printed Page 14641procedures for reporting life cycle events of swaps, provided that its policies and procedures for reporting life cycle events of security-based swaps comply with the requirements of Regulation SBSR.

Another commenter expressed the view that Regulation SBSR “should clarify what shall be reported as the time of execution for a life cycle event for purposes of public dissemination.” [702] The commenter stated that the CFTC requires market participants to report the execution time of the original trade as the execution time for a life cycle event for the trade. The commenter suggested that, under this approach, “the data that is publicly disseminated for lifecycle events may not be that meaningful to the public as it does not include any indication of the point in time the reported price has been traded.” [703] The commenter stated, further, that the time of execution for a life cycle event for purposes of public dissemination “should be the date and time such price-forming event is agreed.” [704]

As discussed in Section VII(B)(3), supra, final Rule 901(j) provides that the reporting timeframe for a life cycle event shall be 24 hours after the occurrence of the life cycle event or the adjustment due to the life cycle event. Final Rule 902(a) requires a registered SDR to publicly disseminate a transaction report of a life cycle event, or adjustment due to a life cycle event, immediately upon receipt of the information. Thus, under Regulation SBSR, a life cycle event, or an adjustment due to a life cycle event, must be reported and publicly disseminated within 24 hours after the occurrence of the life cycle event or adjustment due to the life cycle event. The Commission believes that together these requirements will provide market observers with certain information concerning the time when the life cycle event occurred. However, the Commission notes that Regulation SBSR, as proposed and re-proposed, did not require the reporting or public dissemination of the time of execution of a life cycle event, and Regulation SBSR, as adopted, likewise includes no such requirements.

B. Error Corrections—Rule 905

As the Commission noted in the Regulation SBSR Proposing Release, any system for transaction reporting must accommodate the possibility that certain data elements may be incorrectly reported.[705] Therefore, the Commission proposed Rule 905 to establish procedures for correcting errors in reported and disseminated security-based swap information.

In the Cross-Border Proposing Release, the Commission modified proposed Rule 905 slightly to correspond with certain new provisions in re-proposed Rule 908, which contemplated that certain types of cross-border security-based swaps would be required to be reported but not publicly disseminated. Rule 905 was re-proposed to clarify that, if a registered SDR receives corrected information relating to a previously submitted transaction report, it would be required to publicly disseminate a corrected transaction report only if the initial security-based swap were subject to the public dissemination requirement.[706] The Commission also made certain other technical and conforming changes,[707] but otherwise re-proposed Rule 905 was substantially similar to proposed Rule 905.

As discussed below, the Commission received several comments on proposed Rule 905. After consideration of the comments, the Commission has determined to adopt Rule 905 with certain minor editorial revisions.[708]

Rule 905(a) applies to any counterparty to a security-based swap that discovers an error in the information reported with respect to that security-based swap. If a non-reporting side discovers the error, the non-reporting side shall promptly notify the reporting side of the error. Once the reporting side receives notification of the error from the non-reporting side, or if the reporting side discovers the error on its own, the reporting side must promptly submit an amended report—containing corrected data—to the registered SDR that received the erroneous transaction report. The reporting side must submit the report required by Rule 905(a) in a manner consistent with the policies and procedures of the registered SDR that are contemplated by Rule 907(a)(3).[709]

Rule 905(b) details the responsibilities of a registered SDR to correct information and re-disseminate corrected information, where appropriate. If a registered SDR either discovers an error in the security-based swap information or receives notification of an error from a reporting side, the registered SDR is required to verify the accuracy of the terms of the security-based swap and, following such verification, promptly correct the information in its system. If the erroneous information contains any primary trade information enumerated in Rule 901(c) (and the transaction is dissemination-eligible [710] ), the registered SDR must publicly disseminate a corrected transaction report of the security-based swap promptly following verification of the trade by the counterparties to the security-based swap, with an indication that the report relates to a previously disseminated transaction.[711]

Three commenters were generally supportive of the proposed error reporting procedures. One commenter believed that publicly disseminating error reports would “increase confidence in the integrity of the markets.” [712] Another commenter stated that it supported “the objective of prompt correction of errors by the reporting party.” [713] A third commenter expressed support for requiring a reporting party to correct previously reported erroneous data, and agreed that it was appropriate for a non-reporting counterparty to have the obligation to notify the reporting party of an error of which it is aware.[714]

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The third commenter also sought guidance regarding the application of Rule 905 if a dispute arose between a reporting side and non-reporting side concerning whether a report was, in fact, erroneous.[715] The commenter urged the Commission to provide in its final rule that, if corrected information is not promptly reported to the registered SDR because of a dispute over whether an error exists, the non-reporting party side may itself report the disputed data to the registered SDR; the commenter believed that, in such cases, the Commission should oblige the registered SDR to review promptly the disputed data with the counterparties.[716]

The Commission notes that, in a separate release, it is adopting Rule 13n-5(b)(6) under the Exchange Act, which requires an SDR to establish procedures and provide facilities reasonably designed to effectively resolve disputes over the accuracy of the transaction data and positions that are recorded in the SDR.[717] As the Commission notes in adopting that rule, only the parties to a dispute can resolve it. Thus, the SDR itself is not required to resolve the dispute, although the Commission believes that SDRs must provide processes to facilitate resolution, which would improve the quality and accuracy of the security-based swap data that the SDR holds. The Commission is interpreting the term “error” in final Rule 905 as one which both sides to the transaction would reasonably regard as such. If the counterparties dispute whether an error exists, then the counterparties can use an SDR's procedures and facilities established under Rule 13n-5(b)(6) to attempt to resolve the dispute. If the dispute-resolution process under Rule 13n-5(b)(6) yielded agreement that an error exists, then Rule 905 would require the counterparties to correct the error.[718]

The third commenter also asked the Commission, in the context of Rule 905, to clarify that the reporting is for informational purposes and does not affect the terms of the trade; otherwise, “[a]bsent some mechanism to make the report nonbinding pending a dispute, the correction mechanics in the Proposed Rule will result in the reporting party (typically the SBS dealer) prevailing in any dispute.” [719] The Commission does not believe that reporting of an error in previously submitted security-based swap transaction information can change the terms of the trade. Reporting is designed to capture the terms of the trade, not to establish such terms. The Commission's expectation, however, is that the report of a security-based swap provided to and held by a registered SDR will reflect, fully and accurately, the terms of the trade agreed to by the counterparties. If a counterparty becomes aware that the record held by the registered SDR does not accurately reflect the terms of the trade, that counterparty incurs a duty under Rule 905 to take action to have that record corrected.

A fourth commenter argued that the specific root cause of such amendments (for example a booking error or a trade amendment between parties) could be omitted.[720] The Commission notes that Rule 905 does not require the reporting side to include the root cause of the error. This commenter also urged the Commission to clarify that reporting parties are not responsible for data that are inaccurately transcribed or corrupted after submission to the registered SDR. The Commission notes that the obligations under Rule 905 attach to a counterparty to a security-based swap only after that counterparty “discovers” the error or, if the counterparty is the reporting side, after it “receives notification” of the error from the non-reporting side.[721] Thus, a security-based swap counterparty incurs no duty under Rule 905 if its transaction data are inaccurately transcribed or corrupted after submission to the registered SDR unless the counterparty discovers the inaccurate transcription or corruption. Thus, under Rule 905, a counterparty would incur no duty to correct data errors of which it is unaware.[722]

Finally, a fifth commenter believed that Rule 905 should provide an error reporting timeframe that is stronger and more specific than the proposed requirement that such reports be submitted “promptly.” [723] The Commission continues to believe that “promptly” is an appropriate standard because it emphasizes the need for corrections to be submitted without unreasonable delay while affording reporting sides a practical degree of flexibility

C. Policies and Procedures for Reporting Life Cycle Events and Corrections

Rule 907(a)(3), as originally proposed, would have required a registered SDR to establish and maintain written policies and procedures for “specifying how reporting parties are to report corrections to previously submitted information in its records that is subsequently discovered to be erroneous, and applying an appropriate indicator to any transaction report required to be disseminated by [Rule 905(b)(2)] that the report relates to a previously disseminated transaction.” Rule 907(a)(3), as re-proposed, would have required a registered SDR to establish and maintain written policies and procedures for “specifying how reporting sides are to report corrections to previously submitted information, making corrections to information in its records that is subsequently discovered to be erroneous, and applying an appropriate indicator to any report required to be disseminated by [Rule 905(b)(2)] that the report relates to a previously disseminated transaction.”

The Commission received no adverse comment on Rule 907(a)(3) and is adopting it as re-proposed with a slight modification. Rule 907(a)(3), as adopted, requires a registered SDR to establish and maintain policies and procedures for “specifying procedures for reporting life cycle events and corrections to previously submitted information, making corresponding updates or corrections to transaction records, and applying an appropriate flag to the transaction report to indicate that the report is an error correction required to be disseminated by [Rule 905(b)(2)] or is a life cycle event, or any adjustment due to a life cycle event, required to be disseminated by [Rule 902(a)]” (emphasis added). The Commission is adding to final Rule 907(a)(3) the explicit requirement that a registered SDR establish and maintain policies and procedures regarding the reporting and flagging of life cycle events. The Commission believes that these Start Printed Page 14643additions will improve the ability of the Commission and other relevant authorities to identify and analyze life cycle events of security-based swaps.

In the case of a life cycle event or error correction, the initial transaction has already been reported to the registered SDR, and the subsequent report involves some type of revision to the previously submitted report. The Commission seeks to have the ability to observe a security-based swap transaction throughout its life, which requires the ability to connect subsequently reported events to the original transaction. The Commission also seeks to avoid mistaking life cycle events or corrections of previously submitted reports for new transactions, which could result in overcounting the gross notional amount of the security-based swap market or subsets thereof. Therefore, the Commission believes that registered SDRs must have appropriate policies and procedures that stipulate how reporting sides must report such follow-on events, and how the registered SDR itself can distinguish them and record them properly.

Just as the Commission believes that a registered SDR should be given reasonable flexibility to enumerate specific data elements to be reported and the method for reporting them, the Commission also believes that a registered SDR should be given reasonable flexibility regarding the handling of corrections to previously submitted information. As discussed above, final Rule 905 does not require the reporting side to report the cause of an error.[724] Nor does Rule 905 set forth a specific procedure for how a registered SDR must accept a report of a life cycle event or error correction. Accordingly, a registered SDR's policies and procedures under Rule 907(a)(3) could require resubmission of the entire record with or without an indication of which elements in that record had been revised. Alternatively, a registered SDR's policies and procedures could require a submission of only the data element or elements that had been revised. The Commission notes, however, that Rule 905(b)(2) requires a registered SDR to publicly disseminate a corrected transaction report of a security-based swap, if erroneously reported information relates to a security-based swap that had been publicly disseminated and falls into any of the categories of information enumerated in Rule 901(c). Therefore, a registered SDR will need to have a means of identifying changes in reported data so that it can identify the changed element or elements in the publicly disseminated correction report.

The Commission notes that Rule 907(a)(3) requires a registered SDR's policies and procedures also to address how the registered SDR will apply an appropriate condition flag to any corrected transaction report that must be re-disseminated. Market observers should be able to understand that a transaction report triggered by Rule 905(b)(2) or Rule 902(a) does not represent a new transaction, but merely a revision to a previous transaction. Without an indication to that effect, market observers could misunderstand the true state of the market.[725] To provide observers with a clear view of the market, public reports of life cycle events should allow observers to identify the security-based swap subject to the life cycle event. The Commission notes, however, that registered SDRs may not use the transaction ID for this function because the transaction ID is not a piece of “information reported pursuant to [Rule 901(c)]” or a condition flag.[726] Moreover, the Commission believes that knowledge of the transaction ID should remain limited to counterparties, infrastructure providers, and their agents, and should not be widely known. Knowledge of the transaction ID by additional parties could raise data integrity issues, as such additional parties could accidentally or even intentionally submit “false corrections” to the registered SDR regarding transactions to which they were never a counterparty. This could damage the otherwise accurate record of the original transaction. Screening out improperly submitted “corrections”—or repairing damage to the registered SDR's records that a false correction might cause—could become a significant and unwanted burden on registered SDRs. Therefore, registered SDRs, in their policies and procedures under Rule 907(a)(3), will need to use some means other than the transaction ID to indicate that a publicly disseminated report triggered by Rule 905(b)(2) or Rule 902(a) pertains to a previously disseminated transaction.[727]

XIII. Other Duties of Participants

A. Duties of Non-Reporting Sides To Report Certain Information—Rule 906(a)

The Commission believes that a registered SDR generally should maintain complete information for each security-based swap reported to the registered SDR, including UICs for both sides of a transaction. Although Regulation SBSR generally takes the approach of requiring only one side to report the majority of the transaction information,[728] the Commission recognizes that it might not be feasible or desirable for the reporting side to report to a registered SDR all of the UICs of the non-reporting side. To address this issue, the Commission proposed Rule 906(a), which would provide a means for a registered SDR to obtain UICs from the non-reporting side.

Rule 906(a), as initially proposed, would have established procedures designed to ensure that a registered SDR obtains UICs for both direct counterparties to a security-based swap. As initially proposed, Rule 906(a) would have required a registered SDR to identify any security-based swap reported to it for which the registered SDR does not have the participant ID and (if applicable) the broker ID, desk ID, and trader ID of each counterparty. The registered SDR would have been required to send a report once a day to each of its participants identifying, for each security-based swap to which that Start Printed Page 14644participant is a counterparty, the security-based swap(s) for which the registered SDR lacks participant IDs and (if applicable) a broker ID, desk ID, or trader ID. The participant would have been required to provide the missing information within 24 hours of receiving this report from the registered SDR.

When the Commission re-proposed Regulation SBSR as part of the Cross-Border Proposing Release, it made conforming changes to Rule 906(a) to reflect the introduction of the “reporting side” concept and to clarify that the participant ID, broker ID, desk ID, and trader ID must be reported only for direct counterparties.[729]

The Commission has decided to adopt Rule 906(a) substantially as re-proposed, with conforming changes related to including branch ID and execution agent ID among the UICs that must be provided to the registered SDR [730] and other minor technical changes.[731]

The Commission received two comment letters from the same commenter addressing proposed Rule 906(a). The first letter, which responded to the initial proposal, stated that regulators must have the UICs of both counterparties to a security-based swap to accurately track exposures.[732] The commenter believed that, ideally, this process would be supported electronically and that the use of third-party services should meet this requirement.[733]

The Commission generally shares the commenter's view that registered SDRs should maintain UICs for both sides of a security-based swap.[734] The Commission notes that Rule 901(d) requires the reporting side to report the branch ID, broker ID, execution agent ID, trader ID, and trading desk ID—as applicable—only for the direct counterparty on its side. Rule 901(d)(1) requires the reporting side to report only the counterparty ID or execution agent ID, as applicable, of a counterparty on the other side. The Commission could have required the reporting side to provide UIC information for both sides of the transaction, but this would obligate a non-reporting side to furnish its UIC information to the reporting side so that the additional UICs could be reported by the reporting side. There are circumstances where a non-reporting side might be unable or unwilling to provide its UIC information to the reporting side. Therefore, the Commission is instead requiring the registered SDR to obtain these UICs from the non-reporting side through the Rule 906(a) process.[735] Obtaining UICs for both sides will enhance the Commission's ability to carry out its responsibility to oversee the security-based swap market, because the Commission will be able to identify individual traders and business units that are involved in security-based swap transactions.[736]

In a subsequent comment letter, in response to the re-proposal of Regulation SBSR, the same commenter expressed concern that Rule 906(a) could require a registered SDR to send reports to and obtain information from persons who might not be participants of that registered SDR.[737] More generally, this commenter suggested that registered SDRs should not police security-based swap reports for deficiencies or unpopulated data fields in any manner that requires the registered SDR to take affirmative action to obtain information.[738]

The Commission disagrees with the commenter's suggestion that registered SDRs should have no duty to review the completeness of security-based swap reports or obtain missing information from participants. To the contrary, the Commission believes that registered SDRs are best situated to review reported data for completeness because they have a statutory and regulatory duty to accept and maintain security-based swap data, as prescribed by the Commission.[739] Imposing an affirmative duty on registered SDRs to verify the completeness of reported data and to Start Printed Page 14645obtain missing data should increase the reliability of data maintained by registered SDRs while decreasing the possibility of registered SDRs providing incomplete reports to relevant authorities. This, in turn, will facilitate oversight of the security-based swap market, which is a primary objective Title VII.

Rule 906(a) requires registered SDRs to communicate with participants that are not reporting sides under Regulation SBSR. As discussed above, these communications are required to ensure that a registered SDR maintains complete UIC information for both sides of each security-based swap transaction that is reported to the registered SDR. The Commission recognizes that some non-reporting sides may not wish to connect directly to a registered SDR because they may not want to incur the costs of establishing a direct connection. Rule 906(a) does not prescribe the means registered SDRs must use to obtain information from non-reporting sides. As a result, registered SDRs have broad discretion to establish a methodology for notifying non-reporting sides of missing UIC information and obtaining UIC reports from the non-reporting side. For example, a registered SDR could send notifications and receive reports via email, in accordance with its policies and procedures.[740] Registered SDRs should consider allowing non-reporting sides to provide the information required by Rule 906(a) in a minimally-burdensome manner.

Historical security-based swaps must be reported to a registered SDR pursuant to Rule 901(i). The Commission acknowledges that broker IDs, branch IDs, execution agent IDs, trading desk IDs, and trader IDs do not yet exist and will not exist until assigned by registered SDRs. Therefore, these UICs are not data elements applicable to historical security-based swaps. Accordingly, registered SDRs are not required under Rule 906(a) to identify these UICs as missing or to communicate to non-reporting side participants that they are missing, and non-reporting side participants are not required by Rule 906(a) to provide these UICs to a registered SDR with respect to any historical security-based swaps.

B. Duty To Provide Ultimate Parent and Affiliate Information to Registered SDRs—Rule 906(b)

To assist the Commission and other relevant authorities in monitoring systemic risk, a registered SDR should be able to identify and calculate the security-based swap exposures of its participants on an enterprise-wide basis.[741] Therefore, the Commission proposed Rule 906(b), which would have required each participant of a registered SDR to provide to the registered SDR information sufficient to identify its ultimate parent(s) and any affiliate(s) of the participant that also are participants of the registered SDR. Proposed Rule 906(b) would have required a person to provide parent and affiliate information to a registered SDR immediately upon becoming a participant.[742] Proposed Rule 906(b) also would have required a participant to promptly notify the registered SDR of any changes to reported parent or affiliate information.

The Commission also proposed rules to define the relationships that could give rise to reporting obligations under Rule 906(b). Proposed Rule 900 would have defined an “affiliate” as “any person that, directly or indirectly, controls, is controlled by, or is under common control with, a person” and “control” as “the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a person, whether through the ownership of voting securities, by contract, or otherwise.” [743] The Commission also proposed definitions of “parent” and “ultimate parent” to identify particular categories of affiliated entities based on a person's ability to control an affiliate. Specifically, proposed Rule 900 would have defined “parent” to mean “a legal person that controls a participant” and “ultimate parent” as “a legal person that controls a participant and that itself has no parent.” The Commission also proposed to define “ultimate parent ID” as “the UIC assigned to an ultimate parent of a participant.”

The Commission re-proposed the definitions of “affiliate,” “control,” “parent,” “ultimate parent,” and “ultimate parent ID,” and Rule 906(b) without change in the Cross-Border Proposing Release.[744]

After considering the comments received, which are discussed below, the Commission is adopting Rule 906(b), as proposed and re-proposed, subject to two clarifying changes.[745] Obtaining ultimate parent and affiliate information will assist the Commission in monitoring enterprise-wide risks related to security-based swaps. If participants are not required to identify which of their affiliates also are participants of a particular registered SDR, the Commission or other relevant authorities might be unable to calculate the security-based swap exposures of that ownership group using data held in the registered SDR. As a result, systemic risk might build undetected within an ownership group, even if all security-based swaps for that enterprise were reported to the same registered SDR. The lack of transparency regarding OTC derivatives exposures within the same ownership group was one of the factors that hampered regulators' ability to respond to the financial crisis of 2007-08.[746]

The Commission believes that a reasonable means of monitoring security-based swap positions on a group-wide basis is by requiring each participant of a registered SDR to provide information sufficient to identify the participant's ultimate parent(s) and any affiliate(s) of the participant that also are participants of the registered SDR, using ultimate parent IDs and counterparty IDs.[747] Rule Start Printed Page 14646906(b), as adopted, imposes an affirmative obligation on participants of a registered SDR to provide this ownership and affiliation information to a registered SDR immediately upon becoming a participant of that SDR. The participant also must notify the registered SDR promptly of any changes to that information. To minimize burdens on participants and to align the burdens as closely as possible with the purpose behind the requirement, Rule 906(b) does not require a participant of a registered SDR to provide information to the registered SDR about all of its affiliates, but only those that are also participants of the same registered SDR.

The Commission received three comments addressing proposed Rule 906(b).[748] One commenter supported the proposed rule, stating that parent and affiliate information, along with other information required to be reported by Regulation SBSR, is critical to providing regulators with a comprehensive view of the swaps market and assuring that publicly reported data is accurate and meaningful.[749] This commenter further stated that registered SDRs should have the power to obtain parent and affiliate information from firms, because this information would help to illustrate the full group level exposures of firms and the impact of the failure of any participant.[750] The Commission generally agrees with the commenter's points and continues to believe that identifying security-based swap exposures within an ownership group is critical to monitoring market activity and detecting potential systemic risks. The existence of data vendors that provide parent and affiliate information may reduce any burdens on participants associated with reporting such information to a registered SDR,[751] but the Commission does not view this as an adequate substitute for having the information reported to and readily available from registered SDRs. Title VII's regulatory reporting requirement is designed to allow the Commission and other relevant authorities to have access to comprehensive information about security-based swap activity in registered SDRs. The Commission believes that it would be inimical to that end for relevant authorities to have all the transaction information in registered SDRs but be forced to rely on information from outside of registered SDRs to link positions held by affiliates within the same corporate group.

Two commenters suggested clarifications or modifications to the proposed rule.[752] One commenter expressed concerns about how Rule 906(b) would apply to agents, noting that investment advisers frequently execute a single security-based swap transaction on behalf of multiple accounts and allocate the notional amount of the transaction among these accounts at the end of the day.[753] The commenter stated that advisers often do not know all of the affiliates of their clients and, as a result, might be unable to comply with Rule 906(b).[754] The commenter recommended that “the Commission clarify that an adviser that has implemented reasonable policies and procedures to obtain the required information about affiliates and documented its efforts to obtain the information from its clients be deemed to have satisfied [Rule 906(b) of] Regulation SBSR.” [755]

The Commission believes that it is unnecessary to modify Rule 906(b) in response to this comment. The Commission notes that Rule 906(b) imposes no obligations on an execution agent, such as an investment adviser that executes a single security-based swap on behalf of multiple accounts and allocates the notional amount of the transaction among those accounts at the end of the day. Rather, it would be the counterparty itself that would have the responsibility under Rule 906(b).

Another commenter expressed the view that the information required to be reported by Rule 906(b) should be placed in prescribed XBRL templates or other such input mechanisms that would capture this information at its source for all downstream processes in the financial supply chain to use.[756] The Commission has determined not to specify the manner or format in which security-based swap counterparties must provide ultimate parent and affiliate information to a registered SDR. The Commission believes that it would be preferable to allow each registered SDR to determine a suitable way to receive and maintain ultimate parent and affiliate information about its participants. The Commission notes that Rule 907(a)(6), as adopted, requires a registered SDR to establish and maintain written policies and procedures for periodically obtaining from each participant information that identifies the participant's ultimate parent(s) and any other participant(s) with which the counterparty is affiliated, using ultimate parent IDs and counterparty IDs.[757]

The Commission received three comments on the definitions of “control” and “affiliate.” [758] No commenters specifically addressed the definitions of “parent,” “ultimate parent,” or “ultimate parent ID.” After carefully evaluating these comments, the Commission is adopting the definitions of “affiliate,” “control,” “parent,” “ultimate parent,” and “ultimate parent ID” as proposed and re-proposed.[759]

One commenter stated its view that the proposed definition of “control” was improper.[760] This commenter believed that the proposed 25% threshold for presuming control was too low, and that obtaining the information required by Rule 906(b) from entities with which a security-based swap market participant has less than a majority ownership relationship would be overly burdensome, and, in some cases, not practicable.[761] The commenter recommended that the Commission amend the definition to presume control based on no less than majority ownership.[762]

The Commission disagrees that, for purposes of Regulation SBSR, control should be presumed to exist only if there is majority ownership. Rule 906(b) is designed to assist the Commission and other relevant authorities in monitoring group-wide security-based swap exposures by enabling a registered SDR to provide them with the information necessary to calculate positions in security-based swaps held within the same ownership group that are reported to that registered SDR. If the Commission were to adopt definitions of “control” and “affiliate” that were based on majority ownership, Start Printed Page 14647participants would be required to identify fewer entities as affiliates, even if certain indicia of affiliation were present. The Commission believes that, to carry out its oversight function for the security-based swap market, it should err on the side of inclusion rather than exclusion when considering which positions are part of the same ownership group for general oversight purposes.

The Commission also notes that the definition of “control” as adopted in Rule 900(h) is consistent with the definition used in other Commission rules and forms,[763] so market participants should be accustomed to applying this definition in the conduct of their business activities. Furthermore, the CFTC's swap data reporting rules employ a materially similar definition of “control” for purposes of determining whether two market participants are affiliated with each other.[764] If the Commission were to adopt a different definition of “control,” market participants would need to determine their affiliates under both sets of rules, thereby imposing what the Commission believes would be unnecessary costs on market participants.

One commenter suggested that the Commission and the CFTC use a consistent definition of “affiliate” throughout the Title VII rulemakings [765] and recommended that the Commission and CFTC use the definition of “affiliated group” in the Commissions' proposed joint rulemaking to further define the terms swap dealer, security-based swap dealer, major swap participant, major security-based swap participant, and eligible contract participant (“Entity Definitions Proposing Release”).[766] The Commission does not believe it is appropriate to adopt, for purposes of Regulation SBSR, the definition of “affiliated group” that was proposed in the Entity Definitions Proposing Release. The final rules defining “swap dealer,” “security-based swap dealer,” “major swap participant,” “major security-based swap participant,” and “eligible contract participant” (“Final Entity Definition Rules”) did not adopt a definition of “affiliated group.” [767] When the Commission and CFTC adopted the Final Entity Definition Rules they specifically rejected the notion that an “affiliated group” should include only those entities that report information or prepare financial statements on a consolidated basis as a prerequisite for being affiliated because they did not believe that whether or not two entities are affiliated should change according to changes in accounting standards.[768] The Commission continues to believe that changes in accounting standards should not determine whether two entities are affiliated and therefore declines to adopt the definition of “affiliated group” that it proposed in the Entity Definitions Proposing Release.

C. Policies and Procedures of Registered Security-Based Swap Dealers and Registered Major Security-Based Swap Participants To Support Reporting—Rule 906(c)

For the security-based swap reporting requirements established by the Dodd-Frank Act to achieve the objectives of enhancing price transparency and providing regulators with access to data to help carry out their oversight responsibilities, the information that participants provide to registered SDRs must be reliable. Ultimately, the majority of security-based swaps likely will be reported by registered security-based swap dealers and registered major security-based swap participants. The Commission believes that requiring these participants to adopt policies and procedures to address their security-based swap reporting obligations will increase the accuracy and reliability of the transaction reports that they submit to registered SDRs.

Proposed Rule 906(c) would have required a participant that is a security-based swap dealer or major security-based swap participant to establish, maintain, and enforce written policies and procedures that are reasonably designed to ensure that the participant complies with any obligations to report information to a registered SDR in a manner consistent with Regulation SBSR and the policies and procedures of any registered SDR of which it is a participant. The policies and procedures contemplated by proposed Rule 906(c) were intended to promote complete and accurate reporting of security-based swap information by participants that are security-based swap dealers and major security-based swap participants, consistent with their obligations under the Dodd-Frank Act and Regulation SBSR. Proposed Rule 906(c) also would have required a security-based swap dealer or major security-based swap participant to review and update its policies and procedures at least annually. The Commission re-proposed Rule 906(c) without change as part of the Cross-Border Proposing Release.[769] The one commenter who addressed this aspect of Regulation SBSR stated that proposed Rule 906(c) is “a necessary part of risk governance and compliance.” [770]

The Commission agrees and is adopting Rule 906(c), largely as proposed and re-proposed, subject to two modifications.[771] As proposed and re-proposed, Rule 906(c) would have required security-based swap dealers and major security-based swap participants to establish, maintain, and enforce written policies and procedures to support security-based swap transaction reporting. As discussed above, Rule 906(c), as adopted, imposes this duty only on registered security-based swap dealers and registered major security-based swap participants.[772] Second, Rule 906(c), as adopted, does not include the phrase “and the policies and procedures of any registered security-based swap data repository of which it is a participant.” The Commission believes that it is sufficient to require that the policies and procedures of registered security-based swap dealers and registered major security-based swap participants be reasonably designed to ensure compliance with the reporting Start Printed Page 14648obligations under Regulation SBSR.[773] Additionally, the Commission anticipates that SDRs will enter into contractual arrangements with reporting sides for the reporting of transactions required to be reported under Regulation SBSR, and that such arrangements likely will stipulate the various rights and obligations of the parties when reporting security-based swap transactions.

Rule 906(c) is designed to promote greater accuracy and completeness of reported security-based swap transaction data by requiring the participants that will bear substantial reporting obligations under Regulation SBSR to adopt policies and procedures that are reasonably designed to ensure that their reports are accurate and reliable. If these participants do not have written policies and procedures for carrying out their reporting duties, compliance with Regulation SBSR might depend too heavily on key individuals or ad hoc and unreliable processes. The Commission, therefore, believes that registered security-based swap dealers and registered major security-based swap participants should be required to establish written policies and procedures which, because they are written and can be shared throughout the organization, should be independent of any specific individuals. Requiring such participants to adopt and maintain written policies and procedures relevant to their reporting responsibilities, as required under Rule 906(c), should help to improve the degree and quality of overall compliance with the reporting requirements of Regulation SBSR. Periodic review of the policies and procedures, as required by Rule 906(c), should help ensure that these policies and procedures remain well functioning over time.

The value of requiring policies and procedures in promoting regulatory compliance is well-established. Internal control systems have long been used to strengthen the integrity of financial reporting. For example, Congress recognized the importance of internal control systems in the Foreign Corrupt Practices Act, which requires public companies to maintain a system of internal accounting controls.[774] Broker-dealers also must maintain policies and procedures for various purposes.[775] The Commission believes that requiring each registered security-based swap dealer and registered major security-based swap participant to adopt and maintain written policies and procedures designed to promote compliance with Regulation SBSR is consistent with Congress's goals in adopting the Dodd-Frank Act.

The policies and procedures required by Rule 906(c) could address, among other things: (1) The reporting process and designation of responsibility for reporting security-based swap transactions; (2) the process for systematizing orally negotiated security-based swap transactions; (3) order management system outages or malfunctions, and when and how back-up systems are to be used in connection with required reporting; (4) verification and validation of all information relating to security-based swap transactions reported to a registered SDR; (5) a training program for employees responsible for security-based swap transaction reporting; (6) control procedures relating to security-based swap transaction reporting and designation of personnel responsible for testing and verifying such policies and procedures; and (7) reviewing and assessing the performance and operational capability of any third party that carries out any duty required by Regulation SBSR on behalf of the registered security-based swap dealer or registered major security-based swap participant.[776]

XIV. Other Aspects of Policies and Procedures of Registered SDRs

A. Public Availability of Policies and Procedures

Rule 907(c), as proposed and re-proposed, would have required a registered SDR to make its policies and procedures publicly available on its Web site. The Commission did not receive any comments on Rule 907(c) and is adopting it as proposed and re-proposed. This public availability requirement will allow all interested parties to understand how the registered SDR is utilizing the flexibility it has in operating the transaction reporting and dissemination system. Being able to review the current policies and procedures will provide an opportunity for participants to make suggestions to the registered SDR for altering and improving those policies and procedures, in light of new products or circumstances, consistent with the principles set out in Regulation SBSR.

B. Updating of Policies and Procedures

Proposed Rule 907(d) would have required a registered SDR to “review, and update as necessary, the policies and procedures required by [Regulation SBSR] at least annually.” Proposed Rule 907(d) also would have required the registered SDR to indicate the date on which its policies and procedures were last reviewed. The Cross-Border Proposing Release re-proposed Rule 907(d) without revision.

The Commission did not receive any comments on Rule 907(d) and is adopting it as proposed and re-proposed. The Commission continues to believe that a registered SDR should periodically review its policies and procedures to ensure that they remain well-functioning over time. The Commission also continues to believe that requiring registered SDRs to indicate the date on which their policies and procedures were last reviewed will allow regulators and SDR participants to understand which version of the policies and procedures are current. A registered SDR could satisfy this obligation by, for example, noting when individual sections were last updated or by reissuing the entirety of the policies and procedures with an “as of” date. The Commission notes that, regardless of the method chosen and although only the most current version of a registered SDR's policies and procedures must be publicly available pursuant to Rule 907, the registered SDR must retain prior versions of those policies and procedures for regulatory purposes pursuant to Rule 13n-7(b) under the Exchange Act,[777] as adopted by the Commission.[778] These records would help the Commission, if conducting a review of a registered SDR's past actions, to understand what policies and procedures were in force at the time.

C. Provision of Certain Reports to the Commission

Under Title VII, the Commission is responsible for regulating and overseeing the security-based swap market, including the trade reporting obligations imposed by Regulation Start Printed Page 14649SBSR.[779] The Commission believes that, to carry out this responsibility, it will be necessary to obtain from each registered SDR information related to the timeliness, accuracy, and completeness of data reported to the registered SDR by the SDR's participants. Required data submissions that are untimely,[780] inaccurate,[781] or incomplete [782] could compromise the regulatory data that the Commission would utilize to carry out its oversight responsibilities. Furthermore, required data submissions that are untimely, inaccurate, or incomplete could diminish the value of publicly disseminated reports that are meant to promote transparency and price discovery.

Accordingly, the Commission proposed and re-proposed Rule 907(e), which would have required a registered SDR to “have the capacity to provide to the Commission, upon request, information or reports related to the timeliness, accuracy, and completeness of data reported to it” pursuant to Regulation SBSR and the registered SDR's policies and procedures. The sole commenter on this provision agreed that an SDR should be able to “readily provide the Commission with any relevant information,” but noted that an SDR might not be in the best position to confirm the accuracy of the trade information it receives.[783] The commenter believed that ultimate responsibility for the submission of accurate and complete information belongs with the reporting side, and that Rule 907(e) should be revised to reflect that an SDR's information will “only be as timely, accurate, and complete as provided to it by parties to the trade.” [784]

The Commission is adopting Rule 907(e) with a minor revision. The final rule provides that a registered SDR “shall provide, upon request, information or reports . . .” rather than, as proposed and re-proposed, that a registered SDR “shall have the capacity to provide . . .” This language better conveys the Commission's expectation that, not only must a registered SDR have the capacity to provide the relevant information or reports, it must in fact provide such information or reports when the Commission requests. The Commission believes that this revision accords with the commenter who stated that an SDR should be able to “readily provide the Commission with any relevant information.” [785]

However, the Commission is not revising Rule 907(e) to reflect that an SDR's information will “only be as timely, accurate, and complete as provided to it by parties to the trade,” as requested by the commenter.[786] The Commission appreciates that there could be certain data elements submitted by reporting sides that a registered SDR could not reasonably be expected to know are inaccurate. For example, if the reporting side submits a valid trader ID for trader X when in fact the transaction was carried out by trader Y, the Commission would not expect a Rule 907(e) report provided by a registered SDR to reflect this fact. The Commission notes, however, that Rule 13n-5(b)(1)(iii) under the Exchange Act requires an SDR to “establish, maintain, and enforce written policies and procedures reasonably designed to satisfy itself that the transaction data that has been submitted to the security-based swap data repository is complete and accurate.” Thus, the Commission could require a registered SDR to include in a Rule 907(e) report any instances where a reporting side reported a trader ID that fails the SDR's validation rules, because the SDR is in a position to know which trader IDs (and other UICs) are consistent with UICs assigned to traders of its participants.[787]

XV. Rule 908—Cross-Border Reach of Regulation SBSR

Security-based swap business currently takes place across national borders, with agreements negotiated and executed between counterparties in different jurisdictions (which might then be booked and risk-managed in still other jurisdictions).[788] Given the global nature of the market and to help ensure an effective regime for regulatory reporting and public dissemination of security-based swap transactions under Title VII, it is important that Regulation SBSR identify which transactions in this global market will be subject to these Title VII requirements. Regulation SBSR, as initially proposed in November 2010, included Rule 908, which sought to address the cross-border application of the regulatory reporting and public dissemination requirements. In the Cross-Border Proposing Release, issued in May 2013, the Commission re-proposed Rule 908 with substantial revisions. Commenters' views on re-proposed Rule 908 and the final rule, as adopted by the Commission, are discussed in detail below, following a discussion of the Commission's approach to cross-border application of its authority under Title VII and the Exchange Act generally.

A. General Considerations

As stated in the Cross-Border Adopting Release, the Commission continues to believe that a territorial approach to the application of Title VII—including the requirements relating to regulatory reporting and public dissemination of security-based swap transactions—is appropriate.[789] This approach, properly understood, is grounded in the text of the relevant statutory provisions and is designed to help ensure that the Commission's application of the relevant provisions is consistent with the goals that the statute was intended to achieve.[790] Once the Commission has identified the activity regulated by the statutory provision, it then determines whether a person is engaged in conduct that the statutory provision regulates and whether this conduct occurs within the United States.[791]

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Under the foregoing analysis, when a U.S. person enters into a security-based swap, the security-based swap necessarily exists at least in part within the United States. The definition of “U.S. person”—adopted in the Cross-Border Adopting Release and incorporated by reference into Regulation SBSR—is intended, in part, to identify those persons for whom it is reasonable to infer that a significant portion of their financial and legal relationships is likely to exist within the United States, and that it is therefore reasonable to conclude that risk arising from their security-based swap activities could manifest itself within the United States, regardless of the location of their counterparties, given the ongoing nature of the obligations that result from security-based swap transactions.[792] Under its territorial approach, the Commission seeks to apply Title VII's regulatory reporting and public dissemination requirements in a consistent manner to differing organizational structures that serve similar economic purposes, and thereby avoid creating different regulatory outcomes for differing legal arrangements that raise similar policy considerations and pose similar economic risks to the United States.[793] Therefore, as discussed in the Cross-Border Adopting Release, this territorial application of Title VII requirements extends to the activities of U.S. person conducted through a foreign branch or office [794] and to the activities of a non-U.S. person for which the U.S. person provides a recourse guarantee.[795]

The Commission further notes that Section 15F(f)(1)(A) of the Exchange Act [796] provides that each registered security-based swap dealer and major security-based swap participant “shall make such reports as are required by the Commission, by rule or regulation, regarding the transactions and positions and financial condition of the registered security-based swap dealer or major security-based swap participant.” [797]

Finally, the Commission seeks to minimize the potential for duplicative or conflicting regulations. The Commission recognizes the potential for market participants who engage in cross-border security-based swap activity to be subject to regulation under Regulation SBSR and parallel rules in foreign jurisdictions in which they operate. To address this possibility, the Commission—as described in detail below—is adopting a “substituted compliance” framework. The Commission may issue a substituted compliance determination if it finds that the corresponding requirements of the foreign regulatory system are comparable to the relevant provisions of Regulation SBSR, and are accompanied by an effective supervisory and enforcement program administered by the relevant foreign authorities.[798] The availability of substituted compliance is designed to reduce the likelihood of cross-border market participants being subject to potentially conflicting or duplicative reporting requirements.

B. Definition of “U.S. Person”

In the Regulation SBSR Proposing Release, the Commission proposed to define “U.S. person” as “a natural person that is a U.S. citizen or U.S. resident or a legal person that is organized under the corporate laws of any part of the United States or has its principal place of business in the United States.” [799] In the Cross-Border Proposing Release, the Commission introduced a new definition of “U.S. person” that it proposed to use in all Title VII rulemakings to promote consistency and transparency, which differed from the initially proposed definition in certain respects. Re-proposed Rule 900(pp) would have defined “U.S. person” by cross-referencing proposed Rule 3a71-3(a)(7), which would have defined “U.S. person” as:

(i) Any natural person resident in the United States;

(ii) any partnership, corporation, trust, or other legal person organized or incorporated under the laws of the United States or having its principal place of business in the United States; and

(iii) any account (whether discretionary or non-discretionary) of a U.S. person.[800]

The Commission received extensive comment on this proposed definition of “U.S. person” and responded to those comments in the Cross-Border Adopting Release.[801]

The Commission adopted a definition of “U.S. person” in the Cross-Border Adopting Release as Rule 3a71-3(a)(4) under the Exchange Act, which reflects a territorial approach to the application of Title VII.[802] The Commission believes that using the same definition of “U.S. person” in multiple Title VII rules could benefit market participants by eliminating complexity that might result from the use of different definitions for different Title VII rules. Accordingly, final Rule 900(ss) of Regulation SBSR defines “U.S. person” to have the same meaning as in Rule 3a71-3(a)(4). Rule 3a71-3(a)(4)(i) defines “U.S. person” as: (1) A natural person resident in the United States; [803] (2) a partnership, corporation, trust, investment vehicle, or other legal person organized, incorporated, or established under the laws of the United States or having its principal place of business [804] in the Start Printed Page 14651United States; (3) an account (whether discretionary or non-discretionary) of a U.S. person; or (4) any estate of a decedent who was a resident of the United States at the time of death. As discussed in the Cross-Border Adopting Release, the Commission believes that a definition of “U.S. person” that focused solely on whether a legal person is organized, incorporated, or established in the United States could encourage some entities to move their place of incorporation to a non-U.S. jurisdiction to avoid complying with Title VII, while maintaining their principal place of business in the United States.[805]

By incorporating Rule 3a71-3(a)(4) by reference, Regulation SBSR also incorporates subparagraph (iv) of Rule 3a71-3(a)(4), which allows a person to rely on a counterparty's representation that the counterparty is not a U.S. person, unless such person knows or has reason to know that the representation is inaccurate. As explained in the Cross-Border Adopting Release,[806] Rule 3a71-3(a)(4)(iv) reflects a constructive knowledge standard for reliance. Under this standard, a counterparty is permitted to rely on a representation, unless such person knows or has reason to know that it is inaccurate. A person would have reason to know the representation is not accurate if a reasonable person should know, under all of the facts of which the person is aware, that it is not accurate.[807] Expressly permitting market participants to rely on such representations in the “U.S. person” definition should help facilitate the determination of which side to a security-based swap is the reporting side and mitigate challenges that could arise in determining a counterparty's U.S.-person status under the final rule.[808] It permits the party best positioned to make this determination to perform an analysis of its own U.S.-person status and convey, in the form of a representation, the results of that analysis to its counterparty. Such representations should help reduce the potential for inconsistent classification and treatment of a person by its counterparties and promote uniform application of Title VII.[809]

Rule 3a71-3(a)(4)(iii)—and thus Regulation SBSR—provides that the term “U.S. person” does not include the International Monetary Fund, the International Bank for Reconstruction and Development, the Inter-American Development Bank, the Asian Development Bank, the African Development Bank, the United Nations; their agencies and pension plans; and any other similar international organizations and their agencies and pension plans. Therefore, a security-based swap involving any such institution, for that fact alone, will not be subject to regulatory reporting or public dissemination under Regulation SBSR.[810] However, as discussed in Section XVI(A), infra, a security-based swap transaction involving such an institution could be subject to regulatory reporting and/or public dissemination, depending on the domicile and registration status of the other side of the transaction.

Finally, similar to the approach taken by the Commission in the Cross-Border Adopting Release for purposes of the de minimis calculation,[811] a change in a counterparty's U.S.-person status after a security-based swap is executed would not affect the original transaction's treatment under Regulation SBSR. However, if that person were to enter into another security-based swap following its change in status, any duties required by Regulation SBSR would be determined according to the new status of that person at the time of the second security-based swap.

C. Scope of Security-Based Swap Transactions Covered by Requirements of Regulation SBSR—Rule 908(a)

1. Transactions Involving a Direct Counterparty That Is a U.S. Person

Under both the proposal and re-proposal, any security-based swap that had a direct counterparty that is a U.S. person would have been subject to both regulatory reporting and public dissemination, regardless of the registration status or domicile of any counterparty on the other side of the transaction. Commenters generally did not object to this aspect of the proposal and the re-proposal.[812]

Final Rule 908(a)(1)(i) provides, in relevant part, that a security-based swap shall be subject to regulatory reporting and public dissemination if “[t]here is a direct . . . counterparty that is a U.S. person on either or both sides of the transaction.” Thus, any security-based swap that has a direct counterparty that is a U.S. person is subject to both regulatory reporting and public dissemination, regardless of the registration status or domicile of any counterparty on the other side of the transaction. This determination is consistent with the territorial application of Title VII described above, because any security-based swap that has a U.S.-person direct counterparty exists at least in part within the United States. One purpose of the rule is to allow the Commission and other relevant authorities to access, for regulatory and supervisory purposes, a record of each such transaction. A second purpose of the rule is to carry out the Title VII mandate for public dissemination of security-based swap transactions. The transparency benefits of requiring public dissemination of security-based swaps involving at least one U.S.-person direct counterparty would inure to other U.S. persons and the U.S. market generally, as other participants in the U.S. market are likely to transact in the same or related instruments.Start Printed Page 14652

2. Transactions Conducted Through a Foreign Branch or Office

Rule 908(a), as initially proposed, treated foreign branches and offices of U.S. persons as integral parts of the U.S. person itself.[813] Therefore, Rule 908(a), as initially proposed, would not have treated a security-based swap transaction executed by or through a foreign branch or office of a U.S. person any differently than any other transaction executed by the U.S. person.

In the Cross-Border Proposing Release, the Commission revised its approach to transactions conducted through a foreign branch. Although all transactions conducted through a foreign branch or office would have been subject to regulatory reporting, re-proposed Rule 908(a)(2)(iii) would have provided an exception to public dissemination for transactions conducted through a foreign branch when the other side is a non-U.S. person who is not a security-based swap dealer.[814] In proposing this exception to public dissemination for such transactions conducted through a foreign branch, the Commission stated that it was “concerned that, if it did not take this approach, non-U.S. market participants might avoid entering into security-based swaps with the foreign branches of U.S. banks so as to avoid their security-based swaps being publicly disseminated.” [815] However, Rule 908(a)(2) would have subjected a transaction conducted through a foreign branch to public dissemination if there was, on the other side, a U.S. person (including a foreign branch) [816] or a security-based swap dealer.[817]

One commenter expressed the view that foreign branches should be treated the same as non-U.S.-person security-based swap dealers for purposes of public dissemination, and that security-based swaps between two non-U.S. persons, between a non-U.S. person and a foreign branch, and between two foreign branches should not be subject to public dissemination.[818] Another commenter, however, stated that “it should be expected that most jurisdictions would seek to apply their rules to transactions between two of their own domiciled persons, despite some of the activity being conducted abroad.” [819] A third commenter recommended that the exception to public dissemination for foreign branches be eliminated, so that security-based swaps between a foreign branch and any non-U.S. person would be subject to public dissemination.[820]

As noted above, the Commission is adopting the requirement that any security-based swap transaction having a direct counterparty that is a U.S. person, including a security-based swap conducted through a foreign branch, shall be subject to regulatory reporting. The Commission has determined not to adopt the proposed exception from public dissemination for certain transactions conducted through a foreign branch. Thus, under Rule 908(a)(1)(i), as adopted, any security-based swap transaction conducted through a foreign branch is subject to both regulatory reporting and public dissemination. Under the territorial approach to the application of Title VII requirements discussed above, a foreign branch has no separate existence from the U.S. person itself. Therefore, any security-based swap transaction conducted through a foreign branch is a security-based swap executed by the U.S. person itself, and any security-based swap executed by a U.S. person exists at least in part within the United States.[821] The Title VII requirements for regulatory reporting and public dissemination apply to all security-based swap transactions that exist in whole or in part within the United States, unless an exception applies.

Upon further consideration, the Commission believes that the exception from public dissemination for foreign branches in Rule 908(a), as re-proposed, is not warranted. Granting an exception to public dissemination for certain transactions conducted through a foreign branch could have created incentives for some U.S. persons to utilize foreign branches to evade Title VII's public dissemination requirements.[822] This could be the case particularly in a foreign jurisdiction that does not apply rules for public dissemination to all or some transactions conducted through foreign branches operating within that jurisdiction. Thus, the Commission disagrees with the commenter who expressed the view that foreign branches should be treated the same as non-U.S. person security-based swap dealers for purposes of public dissemination,[823] and that security-based swaps between two non-U.S. persons, between a non-U.S. person and a foreign branch, and between two foreign branches should not be subject to public dissemination.[824]

3. Transactions Guaranteed by a U.S. Person

Regulation SBSR, as initially proposed, did not impose reporting requirements based on whether a U.S. person acts as a guarantor of a security-based swap. As re-proposed, however, Rule 908(a)(1)(ii) would have required regulatory reporting of any security-based swap that had a U.S.-person guarantor, even when no direct counterparty was a U.S. person.[825] In addition, Rule 908(a)(2), as re-proposed, would have required public dissemination of some, but not all, transactions having a U.S.-person indirect counterparty. Re-proposed Rule 908(a)(2)(ii) would have provided, in Start Printed Page 14653relevant part, that a security-based swap is subject to public dissemination if there is an indirect counterparty that is a U.S. person on each side of the transaction.[826] Re-proposed Rule 908(a)(2)(iv) would have provided, in relevant part, that a transaction where one side includes a U.S.-person (including an indirect counterparty that is a U.S. person) and the other side includes a non-U.S. person that is a security-based swap dealer would be subject to public dissemination. However, a transaction would have been excepted from public dissemination if one side consisted of a non-U.S.-person direct counterparty and a U.S.-person guarantor, where neither is a security-based swap dealer or major security-based swap participant, and the other side includes no counterparty that is a U.S. person, security-based swap dealer, or major security-based swap participant (a “covered cross-border transaction”).[827]

Commenters generally did not object to the Commission's proposal to subject transactions between direct counterparties who are U.S. persons to regulatory reporting or public dissemination. However, commenters expressed mixed views about extending regulatory reporting and public dissemination requirements to transactions involving U.S.-person guarantors.[828] One of these commenters stated that a guarantee of a security-based swap transaction by a U.S. person should not affect whether the transaction is subject to regulatory reporting or public dissemination, because there is too tenuous a nexus to justify applying Regulation SBSR on the basis of the guarantee alone.[829] Another commenter recommended that a security-based swap between two non-U.S. persons be subject to Commission regulation only where the transaction is “guaranteed by a U.S. person for a significant value.” [830] A third commenter, however, recommended that the Commission apply Title VII rules to transactions in which the risk flows back to a U.S. entity, including transactions involving guaranteed foreign subsidiaries and branches of U.S. entities.[831]

The Commission is adopting, as re-proposed, in Rule 908(a)(1)(ii) the requirement that any transaction involving a U.S.-person guarantor is subject to regulatory reporting. The Commission has determined to continue to consider whether to carve out covered cross-border transactions from public dissemination. Thus, Rule 908(a)(1)(i), as adopted, requires public dissemination of all security-based swap transactions having a U.S.-person guarantor.[832] This approach is consistent with the territorial approach to applying Title VII requirements, described above. A security-based swap with a U.S.-person indirect counterparty is economically equivalent to a security-based swap with a U.S.-person direct counterparty, and both kinds of security-based swaps exist, at least in part, within the United States. As the Commission observed in the Cross-Border Adopting Release, the presence of a U.S. guarantor facilitates the activity of the non-U.S. person who is guaranteed and, as a result, the security-based swap activity of the non-U.S. person cannot reasonably be isolated from the U.S. person's activity in providing the guarantee.[833] The financial resources of the U.S.-person guarantor could be called upon to satisfy the contract if the non-U.S. person fails to meet its obligations. Thus, the extension of a guarantee is economically equivalent to a transaction entered into directly by the U.S.-person guarantor. Accordingly, Rule 908(a)(1)(i), as adopted, provides that a security-based swap shall be subject to regulatory reporting and public dissemination if “[t]here is a direct or indirect counterparty that is a U.S. person on either or both sides of the transaction” (emphasis added). The Commission disagrees with the commenter who stated that a guarantee of a security-based swap transaction by a U.S. person should not affect whether the transaction is subject to regulatory reporting or public dissemination, because there is too tenuous a nexus to justify applying Regulation SBSR on the basis of the guarantee alone.[834] Under the territorial approach described above, any security-based swap guaranteed by a U.S. person exists at least in part within the United States, which triggers the application of Title VII requirements. The Commission believes that this is true regardless of whether a particular guarantee is “for a significant value.” [835] Furthermore, if the Commission does not require regulatory reporting of security-based swaps that are guaranteed by U.S. persons—in addition to security-based swaps having a U.S.-person direct counterparty—the Commission and other relevant authorities could be less likely to detect potential market abuse or the build-up of potentially significant risks within individual firms or groups or more widespread systemic risks to the U.S. financial system.

The Commission anticipates seeking additional comment on whether or not to except covered cross-border transactions from public dissemination in the future. Furthermore, as discussed in the proposed compliance schedule for Rules 901, 902, 903, 904, 905, 906, and 908 of Regulation SBSR set forth in the Regulation SBSR Proposed Amendments Release, the Commission is proposing to defer the compliance date for Rule 908(a)(1)(i) with respect to the public dissemination of covered cross-border transactions until such time as the Commission has received and considered comment on such an exception. Thus, although covered cross-border transactions are subject to public dissemination under Rule 908(a)(1)(i), as adopted, there would be no public dissemination of any such transaction until the Commission considers whether these transactions should be excepted from public dissemination.Start Printed Page 14654

4. Transactions Accepted for Clearing by a U.S. Clearing Agency

Re-proposed Rules 908(a)(1)(iv) and 908(a)(2)(v) would have required regulatory reporting and public dissemination, respectively, of security-based swaps that are “cleared through a clearing agency having its principal place of business in the United States.” One commenter agreed that “Dodd-Frank's reporting requirements should apply to any transaction that . . . was cleared through a registered clearing organization having its principal place of business in the U.S.” [836] Two other commenters objected.[837] One of these commenters observed that Regulation SBSR could require regulatory reporting and public dissemination of transaction information before the transaction is submitted for clearing; as a result, circumstances could arise where the sides would not know whether a particular security-based swap is subject to regulatory reporting and public dissemination until after reporting deadlines have passed.[838] The other commenter argued that the proposed requirement might discourage market participants from clearing transactions in the United States, which would be contrary to the objective of reducing systemic risk.[839] Another commenter argued that a transaction between two non-U.S. persons that is cleared through a clearing agency having its principal place of business in the United States should not be subject to public dissemination, “although the clearing agency can provide information for regulatory purposes.” [840]

The Commission is adopting Rule 908(a)(1)(ii) with two modifications. The rule, as adopted, provides that a security-based swap shall be subject to regulatory reporting and public dissemination if “[t]he security-based swap is accepted for clearing by a clearing agency having its principal place of business in the United States.” Rule 908(a)(1)(ii), as adopted, is consistent with the territorial approach discussed above. Just as a security-based swap to which a U.S. person is a direct or indirect counterparty exists, at least in part, within the United States, a security-based swap that is accepted for clearing by a clearing agency having its principal place of business in the United States also exists, at least in part, within the United States. Such acceptance creates ongoing obligations that are borne by a U.S. person and thus are properly viewed as existing within the United States.[841]

The Commission acknowledges the concerns of the commenter who observed that Regulation SBSR, as re-proposed, could have required regulatory reporting and public dissemination of transaction information before the transaction is submitted for clearing.[842] Currently, clearing in the security-based swap market is voluntary. Therefore, counterparties—if they decide to clear a transaction at all—might not submit the transaction to a clearing agency until some time after it is executed. The final rule reflects the Commission's view that, if a security-based swap is subject to regulatory reporting and public dissemination solely because of Rule 908(a)(1)(ii),[843] the duty to report the trade is not triggered by the execution of the security-based swap but rather by the registered clearing agency's acceptance of the transaction for clearing.[844] The Commission believes that it would not be appropriate to link the reporting requirement to the time of execution, because the registered clearing agency's acceptance of the transaction for clearing might not take place until several days after the time of execution.

The Commission disagrees with the commenter who argued that a transaction between two non-U.S. persons that is cleared through a clearing agency having its principal place of business in the United States should not be subject to public dissemination, “although the clearing agency can provide information for regulatory purposes.” [845] The Commission believes that such transactions—subject to the modifications to the rule text noted above—should be subject to both regulatory reporting and public dissemination and therefore is not adopting the this commenter's recommendation. For the reasons described above, the Commission believes that such transactions exist at least in part within the United States; therefore, Title VII's requirements for both regulatory reporting and public dissemination properly apply to such transactions. This approach will permit the Commission and other relevant authorities the ability to observe in a registered SDR all of the alpha transactions that have been accepted by a registered clearing agency having its principal place of business in the United States and to carry out oversight of security-based swaps that exist at least in part within the United States. Furthermore, the Commission believes that public dissemination of such transactions will have value to participants in the U.S. security-based swap market, who are likely to trade the same or similar products, as these products have been made eligible for clearing by a registered clearing agency having its principal place of business in the United States.[846]

Furthermore, the Commission disagrees with the commenter who argued that requiring regulatory reporting and public dissemination of transactions cleared through a U.S. clearing agency is likely to discourage market participants from clearing transactions in the United States.[847] The Commission questions whether the commenters' assertion would in fact come to pass. Market participants are likely to consider multiple factors when deciding whether and where to clear a security-based swap. These factors could include the cost of clearing, the Start Printed Page 14655types of products that can be cleared, the safeguards that clearing agencies put in place for customer funds, and clearing agency policies on netting and margin. Commenters offered no support for the assertion that the application of regulatory reporting and public dissemination requirements to transactions that are accepted for clearing by a U.S. clearing agency would be a deciding or even a significant factor in whether to clear or the choice of clearing agency. Even if this assertion were true, however, the Commission believes that it is appropriate, for the reasons discussed above, to subject these transactions to regulatory reporting and public dissemination.

Finally, the Commission recognizes that the reporting hierarchy in Rule 901(a)(2)(ii), as adopted, does not assign reporting obligations for two kinds of cross-border transaction: (1) A transaction where there is no U.S. person, registered security-based swap dealer, or registered major security-based swap participant on either side; and (2) a transaction where there is no registered security-based swap dealer or registered major security-based swap participant on either side and there is a U.S. person on only one side. If such a transaction is accepted for clearing by a registered clearing agency having its principal place of business in the United States, neither side—under Regulation SBSR as adopted by the Commission—is required to report the transaction to a registered SDR. However, as described in Section V(B), supra, the Commission anticipates soliciting further comment on how Regulation SBSR should be applied to transactions involving unregistered non-U.S. persons, including how reporting duties should be assigned for the two kinds of transaction noted above.

5. Transactions Involving a Registered Security-Based Swap Dealer or Registered Major Security-Based Swap Participant That Is Not a U.S. Person

Under re-proposed Rule 908(a)(1)(iii), a security-based swap would have been subject to regulatory reporting if there is a direct or indirect counterparty that is a security-based swap dealer or major security-based swap participant on either side of the transaction, regardless of the counterparties' place of domicile and regardless of the place of execution of the transaction. Under Rule 908(a), as initially proposed, a counterparty's status as a security-based swap dealer or major security-based swap participant would not by itself have triggered reporting obligations for a particular security-based swap.[848]

One commenter recommended expanding the public dissemination requirement to include security-based swaps that occur outside the United States between a non-U.S. person security-based swap dealer and a non-U.S. person that is not guaranteed by a U.S. person,[849] and between two non-U.S. person security-based swap dealers.[850]

Rule 908(a)(2), as adopted, provides: “A security-based swap that is not included within paragraph (a)(1) of this section shall be subject to regulatory reporting but not public dissemination if there is a direct or indirect counterparty on either or both sides of the transaction that is a registered security-based swap dealer or a registered major security-based swap participant.” [851] Thus, a security-based swap between a non-U.S. person registered security-based swap dealer or registered major security-based swap participant and another non-U.S. person (which could include another non-U.S. person registered security-based swap dealer or registered major security-based swap participant), and where neither direct counterparty is guaranteed by a U.S. person, would be subject to regulatory reporting but not public dissemination. This treatment of security-based swaps involving non-U.S. person registered security-based swap dealers and non-U.S. person registered major security-based swap participants is generally consistent with re-proposed Rule 908(a); the language of final Rule 908(a)(2) is designed to clarify that outcome.[852]

The Commission is not at this time taking the view that a security-based swap involving a registered security-based swap dealer or registered major security-based swap participant, for that reason alone, exists within the United States. Therefore, the Commission is not subjecting any transactions involving a non-U.S.-person registered security-based swap dealer or registered major security-based swap participant, for its registration status alone, to any requirement under Regulation SBSR based on a territorial application of Title VII. However, the Commission is requiring non-U.S.-person registered security-based swap dealers and registered major security-based swap participants to report their security-based swap transactions pursuant to Rule 908(a)(2).[853] Requiring reporting to a registered SDR of all transactions entered into by registered security-based swap dealers and registered major security-based swap participants will provide the Commission and other relevant authorities with important information to help with the assessment of their positions and financial condition.[854] Such information could in turn assist the Commission and other relevant authorities in assessing and addressing potential systemic risks caused by these security-based swap positions, or in detecting insider trading or other market abuse.

The Commission notes that a non-U.S. person that is registered as a security-based swap dealer or major security-based swap participant, when reporting a transaction that falls within Rule 908(a)(2), must comply with the policies and procedures of the registered SDR regarding how to flag the transaction as not subject to public dissemination. The Commission would not view a registered SDR as acting inconsistent with Rule 902 for publicly disseminating a security-based swap that falls within Rule 908(a)(2) if the reporting side had failed to appropriately flag the transaction.

6. No Final Rule Regarding Transactions Conducted Within the United States.

Under re-proposed Rule 908(a)(1)(i), a security-based swap would have been subject to regulatory reporting if it was a transaction conducted within the Start Printed Page 14656United States.[855] Re-proposed Rule 908(a)(1)(i) preserved the principle—but not the specific language—from the initial proposal that a security-based swap would be subject to regulatory reporting if it is executed in the United States.[856] When the Commission re-proposed Rule 908(a)(1)(i) in the Cross-Border Proposing Release, the Commission expressed concern that the language in the Regulation SBSR Proposing Release could have required a security-based swap to be reported if it had only the slightest connection with the United States.[857]

Re-proposed Rules 908(a)(1)(i) and 908(a)(2)(i) would have subjected a security-based swap transaction to Regulation SBSR's regulatory reporting and public dissemination requirements, respectively, if the security-based swap was a “transaction conducted within the United States.” Commenters expressed divergent views regarding this provision [858] and, after careful consideration, the Commission has decided not to adopt re-proposed Rule 908(a)(1)(i) or 908(a)(2)(i) at this time. As discussed above, the Commission anticipates seeking additional public comment on whether and, if so, how regulatory reporting and public dissemination requirements should be applied to transactions involving non-U.S. persons when they engage in conduct within the United States.[859]

D. Limitations on Counterparty Reporting Obligations—Rule 908(b)

As-proposed, Rule 908(b) would have provided that, notwithstanding any other provision of Regulation SBSR, a direct or indirect counterparty to a security-based swap would not incur any obligation under Regulation SBSR unless the counterparty is:

(1) A U.S. person;

(2) a security-based swap dealer or major security-based swap participant; or

(3) a counterparty to a transaction conducted within the United States.

The Commission received no comments that specifically addressed re-proposed Rule 908(b).[860]

At this time, the Commission is adopting only the first two prongs of Rule 908(b). Thus, Rule 908(b), as adopted, provides that, notwithstanding any other provision of Regulation SBSR, a person shall not incur any obligation under Regulation SBSR unless it is a U.S. person, a registered security-based swap dealer, or a registered major security-based swap participant. As discussed above, U.S. persons can be subjected to requirements under Title VII because their transactions, whether undertaken directly or indirectly, exist at least in part within the United States. Furthermore, registered security-based swap dealers and registered major security-based swap participants are required to report their security-based swap transactions.[861]

Rule 908(b) is designed to specify the types of persons that will incur duties under Regulation SBSR. If a person does not come within any of the categories enumerated by Rule 908(b), it would not incur any duties under Regulation SBSR. Under Rule 908(b), as adopted, a non-U.S. person incurs no duties under Regulation SBSR unless it is a registered security-based swap dealer or registered major security-based swap participant. The Commission believes that this modification will reduce assessment costs and provide greater legal certainty to counterparties engaging in cross-border security-based swaps. The Commission anticipates soliciting additional public comment on whether regulatory reporting and/or public dissemination requirements should be extended to transactions occurring within the United States between non-U.S. persons and, if so, which non-U.S. persons should incur reporting duties under Regulation SBSR.

E. Substituted Compliance—Rule 908(c)

1. General Considerations

The security-based swap market is global in scope, and relevant authorities around the globe are in the process of adopting security-based swap reporting and public dissemination requirements within their jurisdictions. Once these new requirements are finalized and take effect, market participants that engage in security-based swap transactions involving more than one jurisdiction could be subject to conflicting or duplicative reporting or public dissemination obligations. As initially proposed, Regulation SBSR did not contemplate that the reporting and public dissemination requirements associated with cross-border security-based swaps could be satisfied by complying with the rules of a foreign jurisdiction instead of U.S. rules. Thus, in many cases, counterparties to a security-based swap would have been required to comply with proposed Regulation SBSR even if reporting of a security-based swap also was required under the rules of a foreign jurisdiction.

As discussed in the Cross-Border Proposing Release,[862] a number of commenters urged the Commission to allow compliance with comparable home country requirements to substitute for compliance with the parallel U.S. requirements.[863] In response to those comments and recognizing that other jurisdictions may implement regulatory reporting and public dissemination regimes for security-based swaps that are comparable to the requirements set forth in Title VII and Regulation SBSR, the Commission re-proposed Rule 908 in the Cross-Border Proposing Release to include a new paragraph (c). Rule 908(c), as re-proposed, would have permitted, under certain conditions, substituted compliance for regulatory reporting and public dissemination requirements relating to security-based swaps. The Commission preliminarily believed that the availability of substituted compliance would reduce the likelihood that market participants would be subject to potentially conflicting or duplicative sets of rules while still meeting the statutory and policy objectives of Title VII. Re-proposed Rule 908(c) would have Start Printed Page 14657specified the security-based swaps that would be eligible for substituted compliance and would have established procedures for market participants to request, and for the Commission to issue, substituted compliance orders.

As discussed in detail below, the Commission is adopting Rule 908(c) substantially as re-proposed, with minor modifications also described below. The Commission believes in general that, if a foreign jurisdiction applies a comparable system for the regulatory reporting and public dissemination of security-based swaps, it would be appropriate to consider permitting affected market participants to comply with the foreign requirements to satisfy the comparable requirements of Regulation SBSR. Where the Commission finds that a foreign jurisdiction's reporting and public dissemination requirements are comparable to those implemented by the Commission, Rule 908(c) provides that the Commission may make a substituted compliance determination with respect to such jurisdiction for these requirements. The Commission believes that permitting substituted compliance could reduce the likelihood that market participants would be subject to conflicting or duplicative regulation with respect to a security-based swap transaction.

In adopting Rule 908(c), the Commission is not making any assessment at this time regarding whether any foreign jurisdiction's requirements for regulatory reporting and public dissemination of security-based swaps are comparable to Regulation SBSR. Furthermore, because the analysis of any particular foreign jurisdiction would be very fact specific, it is impractical for the Commission to opine at this time on whether specific aspects of a foreign system would or would not allow the Commission to make a comparability determination. In view of the many technical differences that could exist between the Commission's Title VII rules and parallel requirements in other jurisdictions, the Commission stated in the Cross-Border Proposing Release that “the Commission would endeavor to take a holistic approach in making substituted compliance determinations—that is, we would ultimately focus on regulatory outcomes as a whole with respect to the requirements within the same category rather than a rule-by-rule comparison.” [864] The Commission continues to believe that this approach to comparability is appropriate, and intends to focus on regulatory outcomes as a whole when considering whether to make a comparability determination.

2. Substituted Compliance Procedure—Rule 908(c)(2)(i)

Rule 908(c)(2)(i), as re-proposed, would have allowed the Commission, conditionally or unconditionally, by order, to make a substituted compliance determination regarding regulatory reporting and public dissemination with respect to a foreign jurisdiction “if that foreign jurisdiction's requirements for regulatory reporting and public dissemination of security-based swaps are comparable to otherwise applicable requirements” under Regulation SBSR.

A number of commenters endorsed the Commission's proposal to permit substituted compliance with Regulation SBSR.[865] One of these commenters noted, for example, that substituted compliance would reduce burdens on businesses in the United States and elsewhere without weakening oversight, thus allowing firms to use funds more efficiently.[866] However, two commenters recommended that the Commission narrow the proposed availability of substituted compliance. One of these commenters stated that the Commission's proposed controls on substituted compliance would be inadequate.[867] The commenter further stated that, although substituted compliance potentially has a legitimate role to play in a cross-border regulatory regime, the greater the scope for substituted compliance, the stricter the controls should be on the ability to substitute foreign rules for U.S. rules.[868] The other commenter stated that the Cross-Border Proposing Release failed to provide an adequate legal or policy justification for allowing substituted compliance.[869] This commenter believed that, rather than using substituted compliance, the Commission should exercise its exemptive authority sparingly and only upon finding an actual conflict exists with a particular foreign regulation.[870]

The Commission has carefully considered these comments and determined to adopt Rule 908(c)(2)(i) as re-proposed, with one modification, as described in Section XV(E)(3), infra. Permitting substituted compliance should reduce the likelihood that market participants face duplicative or contradictory reporting or public dissemination requirements, and thereby decrease costs and administrative burdens on market participants without compromising the regulatory goals of Title VII. The requirements for substituted compliance are designed to ensure that the Title VII requirements for regulatory reporting and public dissemination of security-based swaps are being satisfied, albeit through compliance with the rules of a foreign jurisdiction rather than the specific provisions of Regulation SBSR.

3. Security-Based Swaps Eligible for Substituted Compliance—Rule 908(c)(1)

Rule 908(c)(1), as re-proposed, would have provided that compliance with the regulatory reporting and public dissemination requirements in Sections 13(m) and 13A of the Exchange Act, and the rules and regulations thereunder, may be satisfied by compliance with the rules of a foreign jurisdiction that is the subject of a substituted compliance order issued by the Commission, provided that at least one of the direct counterparties to the security-based swap is either a non-U.S. person or a foreign branch, and the transaction is not solicited, negotiated, or executed within the United States. Thus, under re-proposed Rule 908(c)(1), certain kinds of security-based swaps would not have been eligible for substituted compliance even if they were subject to reporting and public dissemination requirements in a foreign jurisdiction.[871] Specifically, a security-based swap between two U.S. persons would not have been eligible for substituted compliance with respect to regulatory reporting and public dissemination, even if the security-based swap was solicited, negotiated, and executed outside the United States.[872] Furthermore, re-proposed Rule 908(c)(1) would not have allowed for the possibility of substituted compliance with respect to regulatory reporting and public dissemination if the relevant direct counterparty that was Start Printed Page 14658either a non-U.S. person or foreign branch (or its agent)—regardless of place of domicile—solicited, negotiated, or executed a security-based swap from within the United States.

The Commission received two comment letters in response to re-proposed Rule 908(c)(1), both of which addressed the proposal to limit substituted compliance availability to security-based swaps that are not solicited, negotiated, or executed in the United States.[873] One of these commenters recommended that the Commission remove this requirement altogether.[874] The other commenter noted that, as a general matter, it is virtually impossible to determine on a trade-by-trade basis whether each specific contact with a counterparty or potential counterparty has some nexus to the United States, and urged the Commission to subject security-based swaps to Title VII regulation solely according to whether counterparties are U.S. persons.[875]

In response to these comments, the Commission has decided to adopt a modified version of Rule 908(c)(1) that does not condition substituted compliance eligibility on the location of execution, negotiation, or solicitation of a particular transaction.[876] Under Rule 908(c)(1), as adopted, a security-based swap is eligible for substituted compliance with respect to regulatory reporting and public dissemination if at least one of the direct counterparties to the security-based swap is either a non-U.S. person or a foreign branch. Thus, Rule 908(c)(1) permits a security-based swap between a U.S. person and the New York branch of a foreign bank (i.e., a non-U.S. person with operations inside the United States) to be eligible for substituted compliance, provided that a substituted compliance order is in effect with respect to the home country of the foreign bank that operates the U.S. branch. The standard in Rule 908(c)(1), as adopted, is consistent with the Commission's decision not to impose, at this time, reporting or public dissemination requirements based solely on whether a transaction is conducted within the United States.

Regarding which security-based swaps are eligible for the possibility of substituted compliance, the Commission believes that, if at least one direct counterparty to a security-based swap is a foreign branch or a non-U.S. person (even if the non-U.S. person is a registered security-based swap dealer or registered major security-based swap participant, or is guaranteed by a U.S. person), the security-based swap should be eligible for consideration for a substituted compliance determination under Regulation SBSR. This approach recognizes that a transaction involving a foreign branch or a non-U.S. person faces the possibility of being subject to reporting requirements in multiple jurisdictions (the United States and another jurisdiction whose rules may govern the transaction). The approach adopted by the Commission of allowing any transaction involving a foreign branch or non-U.S. person to be eligible to be considered for substituted compliance is designed to limit disincentives for non-U.S. persons to transact security-based swaps with U.S. persons by allowing for the possibility that compliance with the rules of a foreign jurisdiction could be substituted for compliance with the specific provisions of Regulation SBSR when the non-U.S. person transacts with a U.S. person. This approach also would allow for a reasonable minimization of reporting burdens on foreign branches and non-U.S. persons in situations where the local jurisdiction in which they operate does not offer the possibility of substituted compliance.

4. Requests for Substituted Compliance—Rule 908(c)(2)(ii)

Rule 908(c)(2)(ii), as re-proposed, would have established the process for market participants to follow when applying for a substituted compliance determination: “Any person that executes security-based swaps that would, in the absence of a substituted compliance order, be required to be reported pursuant to [Regulation SBSR] may file an application, pursuant to the procedures set forth in § 240.0-13 of this chapter, requesting that the Commission make a substituted compliance determination regarding regulatory reporting and public dissemination with respect to a foreign jurisdiction the rules of which also would require reporting and public dissemination of those security-based swaps. Such application shall include the reasons therefor and such other information as the Commission may request.”

A number of commenters recommended that the Commission permit foreign regulators, as well as market participants, to file an application for a substituted compliance determination.[877] Some of these commenters noted that foreign regulatory authorities would be well-positioned to describe their regulatory frameworks and manner of supervision, and, in any event, their involvement would be needed to negotiate the memorandum of understanding that the Commission proposed to require as a precondition of granting a substituted compliance order.[878] One commenter also stated that the CFTC's Cross-Border Guidance [879] contemplates accepting applications for substituted compliance from non-U.S. regulators.[880] Two commenters suggested that substituted compliance applications should be submitted by foreign regulatory authorities, rather than individual firms.[881]

The Commission is adopting Rule 908(c)(2)(ii) largely as re-proposed, with a few minor revisions. First, consistent with the adoption of Rule 0-13 in the Cross-Border Adopting Release, the Commission has revised Rule 908(c)(2)(ii) to permit foreign financial regulatory authorities to submit applications for substituted compliance determinations on behalf of market participants subject to their jurisdictions.[882]

Start Printed Page 14659

Second, Rule 908(c)(2)(ii), as re-proposed, would have permitted filing by any “person that executes security-based swaps.” Read literally, this language in the re-proposed rule could have permitted persons who are not subject to Regulation SBSR to seek a substituted compliance determination. The Commission seeks to limit the scope of persons who can apply for substituted compliance determinations to foreign financial regulators and parties that would be subject to Regulation SBSR, because these persons have the greatest knowledge about the foreign jurisdiction in question. Moreover, in the case of market participants active in that jurisdiction, they will be directly impacted by potentially overlapping rules and thus have the greatest interest in making the strongest case for substituted compliance. Accordingly, Rule 908(c)(2)(ii), as adopted, permits a “party that potentially would comply with requirements under [Regulation SBSR] pursuant to a substituted compliance order,” [883] or the relevant foreign financial regulatory authority or authorities in that jurisdiction,[884] to file an application requesting a substituted compliance determination.[885]

Third, the Commission has determined not to include the final sentence of re-proposed Rule 908(c)(2)(ii)—“[s]uch application shall include the reasons therefor and such other information as the Commission may request”—in final Rule 908(c)(2)(ii). Rule 0-13(e) under the Exchange Act, as adopted in the Cross-Border Adopting Release, provides detailed requirements regarding the information required to be submitted (e.g., supporting documentation, including information regarding applicable regulatory requirements, compliance monitoring by foreign regulators, and applicable precedent).[886] In light of the cross-reference to Rule 0-13 in final Rule 908(c)(2)(ii), the last sentence of re-proposed Rule 908(c)(2)(ii) is unnecessary and therefore is not included in final Rule 908(c)(2)(ii).

5. Findings Necessary for Substituted Compliance—Rule 908(c)(2)(iii)

Rule 908(c)(2)(iii), as re-proposed, would have provided that, in making a substituted compliance determination with respect to a foreign jurisdiction, the Commission shall take into account such factors as it determines are appropriate, such as the scope and objectives of the relevant foreign regulatory requirements, as well as the effectiveness of the supervisory compliance program administered, and the enforcement authority exercised, by the foreign financial regulatory authority to support oversight of its regulatory reporting and public dissemination system for security-based swaps. Furthermore, Rule 908(c)(2)(iii), as re-proposed, would have provided that the Commission would not make a substituted compliance determination with respect to regulatory reporting and public dissemination unless the Commission found that the relevant foreign regulatory regime provided for the reporting and public dissemination of comparable data elements in a manner and timeframe comparable to those required by Regulation SBSR.[887] As a prerequisite to any substituted compliance determination, re-proposed Rule 908(c)(2)(iii) also would have required that the Commission have direct electronic access to the security-based swap data held by the trade repository or foreign regulatory authority.[888] Lastly, re-proposed Rule 908(c)(2)(iii) would have required the Commission to find that any trade repository or foreign regulatory authority in the foreign jurisdiction is subject to requirements regarding data collection and maintenance; systems capacity, resiliency, and security; and recordkeeping that are comparable to the requirements imposed on registered SDRs.[889]

The Commission has determined to adopt Rule 908(c)(2)(iii) as re-proposed, subject to two minor changes, one in each of Rules 908(c)(2)(iii)(B) and 908(c)(2)(iii)(D), which are discussed below. Final Rule 908(c)(2)(iii) provides that, in making a substituted compliance determination, the Commission shall take into account such factors that it determines are appropriate, which include but are not limited to the scope and objectives of the relevant foreign regulatory requirements, as well as the effectiveness of the supervisory compliance program administered, and the enforcement authority exercised, by the foreign financial regulatory authority to support oversight of its regulatory reporting and public dissemination system for security-based swaps. The rule further provides that the Commission shall not make such a substituted compliance determination unless it finds that:

(A) The data elements that are required to be reported pursuant to the rules of the foreign jurisdiction are comparable to those required to be reported pursuant to Rule 901;

(B) The rules of the foreign jurisdiction require the security-based swap to be reported and publicly disseminated in a manner and a timeframe comparable to those required by Regulation SBSR (or, in the case of transactions that are subject to regulatory reporting but not public dissemination, the rules of the foreign jurisdiction require the security-based swaps to be reported in a manner and timeframe comparable to those required by Regulation SBSR);

(C) The Commission has direct electronic access to the security-based swap data held by a trade repository or foreign regulatory authority to which security-based swaps are reported pursuant to the rules of that foreign jurisdiction; and

(D) Any trade repository or foreign regulatory authority in the foreign jurisdiction that receives and maintains required transaction reports of security-based swaps pursuant to the laws of that foreign jurisdiction is subject to requirements regarding data collection and maintenance; systems capacity, integrity, resiliency, availability, and security; and recordkeeping that are comparable to the requirements imposed on security-based swap data Start Printed Page 14660repositories by the Commission's rules and regulations.[890]

Although no commenters discussed the appropriateness of considering the examination and enforcement practices of foreign regulators in making a substituted compliance determination for Regulation SBSR specifically, a number of commenters addressed the general concept of considering actual practices in the foreign jurisdiction as part of the substituted compliance determination. Certain commenters generally supported the retention by the Commission of the authority to decline to make a comparability finding based on the substantive enforcement of foreign regulatory regimes.[891] Two of these commenters noted, however, that supervisory practices differ significantly among jurisdictions.[892] One of these commenters stated: “This lack of commonality should not be assumed to be a defect in supervisory standards; common objectives may be reached through differing means.” [893] This commenter expressed the general view, however, that “a general, high-level inquiry into the existence of an examination and enforcement process and institutions to support it arguably should inform views about the comparability of outcomes.” [894]

The Commission agrees that the examination and enforcement practices of each foreign jurisdiction will need to be evaluated on a case-by-case basis, and anticipates that it will consider whether the regulatory protections provided in that jurisdiction's security-based swap markets are substantially realized through sufficiently vigorous supervision and enforcement. While the Commission believes that common objectives may be reached through differing means, the Commission also believes that compliance with a foreign jurisdiction's rules for reporting and public dissemination of security-based swaps should be a substitute for compliance with the U.S. rules only when the foreign jurisdiction has a reporting and public dissemination regime comparable to that of the United States. This determination must consider actual practices and implementation as well as written laws and regulations of the foreign jurisdiction.

a. Data Element Comparability—Rule 908(c)(2)(iii)(A)

The Commission received several comments regarding the data element comparability determination required by what is now final Rule 908(c)(2)(iii)(A). Two commenters recommended that the Commission determine whether a foreign jurisdiction has comparable security-based swap reporting requirements based on a holistic review of that jurisdiction's regulations and the local market environment.[895] Some commenters suggested that the Commission should determine whether the security-based swap reporting framework of a foreign jurisdiction is designed to achieve the G-20 goals of transparency in the derivatives markets.[896]

The Commission is adopting re-proposed Rule 908(c)(2)(iii)(A) without revision. Under the final rule, the foreign jurisdiction must require reporting of data elements comparable to those required under Rule 901 of Regulation SBSR for the Commission to make a comparability determination. If the data elements required by the foreign jurisdiction are not comparable, important information about a security-based swap might not be captured by the foreign trade repository or foreign regulatory authority. This could create gaps or inconsistencies in the information available to the Commission and impair the Commission's ability to monitor the security-based swap market. As noted in Section XV(E)(1), supra, the Commission generally agrees with the commenters who expressed the view that the Commission should take a “holistic” or “outcomes-based” view of another jurisdiction's rules when making a substituted compliance determination, rather than conduct a “line-by-line” or “rule-by-rule” analysis. At this time, the Commission does not believe that it is sufficient to consider only whether the data elements required by the foreign regulatory regime are designed to achieve the objectives of the G-20 with respect to reporting. The G-20 objectives are a high-level set of principles designed to guide jurisdictions in adopting reforms for the OTC derivatives markets. Therefore, the Commission believes that it is necessary and appropriate to consider whether the data elements reported under that jurisdiction's rules are comparable to those required under Rule 901 of Regulation SBSR—not whether they are comparable to the G-20 standards—in deciding whether to grant a substituted compliance determination. If the Commission took the opposite view, it would be difficult to conclude that the oversight and transparency goals of Title VII were being satisfied through compliance with the rules of the foreign jurisdiction in lieu of Regulation SBSR.[897]

b. Timeframe of Reporting and Public Dissemination—Rule 908(c)(2)(iii)(B)

The Commission also is adopting Rule 908(c)(2)(iii)(B) as re-proposed, subject to certain conforming changes.[898] Rule 908(c)(2)(iii)(B), as adopted, provides that the Commission shall not issue a substituted compliance determination unless the relevant foreign jurisdiction requires security-based swaps to be reported and publicly disseminated “in Start Printed Page 14661a manner and a timeframe comparable to those required by [Regulation SBSR].” Given the Title VII requirements that all security-based swaps be reported to a registered SDR and that security-based swaps be publicly disseminated in real time, the Commission believes that allowing substituted compliance with the rules of a foreign jurisdiction that has reporting timeframes and dissemination outcomes not comparable to those in the United States would run counter to the objectives and requirements of Title VII. If the Commission allowed substituted compliance for such a jurisdiction, the Commission might have access to less regulatory data about the security-based swap market, or price discovery could be less efficient, than would have been the case if Regulation SBSR applied in its entirety. Thus, for example, the Commission generally does not anticipate permitting substituted compliance with respect to regulatory reporting and public dissemination under Rule 908(c) if a foreign jurisdiction does not (among other things) impose public dissemination requirements for all security-based swaps on a trade-by-trade basis.[899] Thus, the Commission disagrees with the commenter who suggested that a non-U.S. public dissemination regime that disseminates data on an aggregate basis should be deemed comparable to Regulation SBSR.[900]

One commenter stated that “[c]omparability should be addressed flexibly with respect to public dissemination, recognizing that in certain jurisdictions' [sic] transparency obligations are linked to use of a trading venue and fall on the venue.” [901] Another commenter recommended that the Commission should not determine that a foreign jurisdiction lacks comparable security-based swap reporting rules based on technical differences in the timeframes for, or manner of, reporting.[902] Whether the Commission grants a substituted compliance determination will depend on the facts and circumstances pertaining to a particular request. Thus, it is difficult to address concerns such as those raised by these two commenters in the abstract. As the Commission noted in Section XV(E)(1), supra, it will assess comparability in a holistic manner rather than on a rule-by-rule basis.

c. Direct Electronic Access—Rule 908(c)(2)(iii)(C)

The Commission also is adopting Rule 908(c)(2)(iii)(C) as re-proposed. Rule 908(c)(2)(iii)(C) provides that the Commission may not issue a substituted compliance order with respect to regulatory reporting and public dissemination in a foreign jurisdiction unless “[t]he Commission has direct electronic access to the security-based swap data held by a trade repository or foreign regulatory authority to which security-based swaps are reported pursuant to the rules of that foreign jurisdiction.” [903] Commenters expressed differing views regarding the direct electronic access requirement in re-proposed Rule 908(c)(2)(iii)(C). One commenter expressed support for the proposed requirement, believing that direct electronic access is a critical element for adequate monitoring of risks to U.S. financial stability.[904] However, two commenters objected to the proposed direct electronic access requirement.[905] One of these commenters suggested that the Commission should not require direct electronic access at this time, but should instead wait for the “FSB” to develop plans “to produce and share globally aggregated trade repository data that authorities need for monitoring systemic risks.” [906] Another commenter “urge[d] the Commission to take into account the issue of foreign jurisdictions' privacy laws before imposing a blanket requirement that [the Commission] have direct electronic access.” [907]

After carefully considering the comments received, the Commission continues to believe that requiring direct electronic access to security-based swap data held by a trade repository or foreign regulatory authority is a necessary part of any substituted compliance determination. Thus, the Commission does not believe that it should rely instead on the FSB or other international bodies developing arrangements for trade repositories and relevant authorities to share information across jurisdictions. While these cross-border information-sharing arrangements are important, and the Commission will continue to participate in such efforts, granting substituted compliance without direct electronic access would not be consistent with the underlying premise of substituted compliance: That a comparable regulatory result is reached through compliance with foreign rules rather than with the corresponding U.S. rules. If the Commission were to grant substituted compliance for a foreign jurisdiction where the Commission did not have direct electronic access to the facility to which security-based swap transactions of that jurisdiction are reported, the Commission might not have access to transaction information for portions of the security-based swap market that it otherwise would have the ability to surveil.[908] If the Commission were to rely solely on international information-sharing agreements, it could face substantial delays before a foreign trade repository or foreign regulatory authority, even acting expeditiously, could compile and make available to the Commission data relating to a substantial volume of transactions. Delays in obtaining such data could compromise the ability of the Commission to supervise security-based swap market participants, or to share information with other relevant U.S. authorities in a timely fashion. Thus, Start Printed Page 14662the Commission believes that direct electronic access to security-based swap data held by the foreign trade repository or foreign regulatory authority to which security-based swap transactions are reported in the foreign jurisdiction must be a prerequisite to issuing a substituted compliance order with respect to Regulation SBSR applying to that jurisdiction.

The Commission has taken into consideration the comment that certain jurisdictions have privacy laws or blocking statutes that could, in certain cases, render a foreign trade repository or foreign regulatory authority unable to provide the Commission with direct electronic access to transaction information that would include the identity of the counterparties. The Commission is not persuaded that this consideration should remove direct electronic access as a requirement for substituted compliance under Regulation SBSR. Indeed, if foreign privacy laws result in the Commission having less than comparable access to the security-based swap transaction data held at a foreign trade repository or foreign regulatory authority than the Commission otherwise would have if no substituted compliance order were in effect, then the premise of substituted compliance would not be met. Although foreign regulatory authorities would likely have access to information about security-based swap transactions that exist at least in part in their jurisdictions, these authorities might lack the ability to share this information with the Commission. As a result, it could be difficult if not impossible for the Commission or any other relevant authority, foreign or domestic, to observe the build-up of systemic risks created by the global security-based swap activity of U.S. persons. In sum, the Commission believes that, if it does not have direct electronic access to the transaction information reported to the foreign trade repository or foreign regulatory authority, substituted compliance would not yield a comparable outcome and the requirements of Rule 908(c)(2) would not be met.[909] The Commission believes that, in this situation, the specific requirements of Regulation SBSR should continue to apply; if necessary supervisory information cannot be obtained via direct electronic access to the security-based swap data held by a foreign trade repository or foreign regulatory authority, then such transactions must continue to be reported to a registered SDR, from which the Commission can obtain such information.

d. Trade Repository Capabilities—Rule 908(c)(2)(iii)(D)

The Commission received no comments on Rule 908(c)(2)(iii)(D) and is adopting that rule as re-proposed, with certain minor changes. Final Rule 908(c)(2)(iii)(D) provides that the Commission shall not make a substituted compliance determination with respect to regulatory reporting and public dissemination unless it finds that “[a]ny trade repository or foreign regulatory authority in the foreign jurisdiction that receives and maintains required transaction reports of security-based swaps pursuant to the laws of that foreign jurisdiction is subject to requirements regarding data collection and maintenance; systems capacity, integrity, resiliency, availability, and security; and recordkeeping that are comparable to the requirements imposed on security-based swap data repositories by the Commission's rules and regulations” (emphasis added). In the re-proposed rule, the highlighted language would have read “. . . by §§ 240.13n-5 through 240.13n-7 of this chapter.” Because requirements imposed on registered SDRs relating to data collection and maintenance; systems capacity, integrity, resiliency, availability, and security; and recordkeeping could be imposed by Commission rules and regulations other than or in addition to Rules 13n-5 through 13n-7 under the Exchange Act, the Commission believes that it would be more appropriate to use the broader language in the text of final Rule 908(c)(2)(iii)(D). The Commission continues to believe that, to allow substituted compliance for regulatory reporting and public dissemination with respect to a foreign jurisdiction, any entity in that foreign jurisdiction that is required to receive and maintain security-based swap transaction data must have protections and operability standards comparable to those imposed on SEC-registered SDRs.

In addition, the re-proposed rule would have required, in relevant part, that—in connection with a substituted compliance determination—the foreign trade repository or foreign regulatory authority must be subject to requirements for “systems capacity, resiliency, and security” that are comparable to parallel U.S. requirements. That provision in final Rule 908(c)(2)(iii)(D) now states, “systems capacity, integrity, resiliency, availability, and security.” The addition of “integrity” and “availability” to characterize the expected operational capability of the foreign trade repository or foreign regulatory authority is derived from a parallel change that the Commission made in adopting final Rule 13n-6 under the Exchange Act that applies to SEC-registered SDRs.[910] Because these standards apply to SEC-registered SDRs, the Commission believes that it is appropriate for Rule 908(c)(2)(iii)(D) to include them as elements necessary for a finding that a foreign trade repository or foreign regulatory authority is subject to comparable regulatory duties.

e. Memoranda of Understanding—Rule 908(c)(2)(iv)

Rule 908(c)(2)(iv), as re-proposed, would have required that, before issuing a substituted compliance order relating to regulatory reporting and public dissemination with respect to a foreign jurisdiction, the Commission shall have entered into a supervisory and enforcement memorandum of understanding (“MOU”) or other arrangement with the relevant foreign financial regulatory authority or authorities under such foreign financial regulatory system addressing oversight and supervision of the applicable security-based swap market. No commenters addressed this proposed requirement.

The Commission is adopting Rule 908(c)(2)(iv) with certain minor revisions. First, the Commission is modifying the rule to indicate that a substituted compliance determination may require the Commission to enter into more than one MOU or other arrangement with a foreign authority. Second, the Commission has modified the rule to provide that such MOUs or other arrangements would “address[ ] supervisory and enforcement cooperation and other matters arising under the substituted compliance determination.” [911] These clarifications are designed to facilitate discussions between the Commission and relevant foreign regulators.

The Commission expects that any grant of substituted compliance would be predicated on the presence of enforcement MOUs or other arrangements that provide formal mechanisms by which the Commission can request assistance and obtain documents and information from foreign authorities regarding enforcement matters involving securities. Substituted compliance also may be expected to be predicated on the presence of supervisory MOUs or other Start Printed Page 14663arrangements that provide formal mechanisms by which the Commission can request assistance and obtain non-public information from foreign authorities related to the oversight of dually regulated entities. As a result, such MOUs or other arrangements should help the Commission ensure compliance with Title VII requirements for regulatory reporting and public dissemination.

In addition, any grant of substituted compliance may be conditioned upon the Commission entering into other MOUs or arrangements that address additional matters specific to the substituted compliance determination. Such MOUs or other arrangements, among other respects, may be expected to help promote the effectiveness of substituted compliance by providing mechanisms by which the Commission may request information and/or monitor for circumstances where the foreign regime may no longer be comparable to the counterpart Title VII requirements (due, for example, to changes in the substantive legal framework of the foreign regime that are inconsistent with the understandings that underpinned the Commission's initial grant of substituted compliance). In addition, such MOUs or other arrangements may provide mechanisms by which the Commission could request information and monitor the effectiveness of the enforcement and supervision capabilities of the appropriate foreign regulator(s). More generally, such MOUs or other arrangements can provide mechanisms by which the Commission could obtain information relevant to the assessment of comparability.

f. Modification or Withdrawal of Substituted Compliance Order

Rule 908(c)(2)(v), as re-proposed, would have provided that the Commission may, on its own initiative, modify or withdraw a substituted compliance order with respect to regulatory reporting and public dissemination in a foreign jurisdiction, at any time, after appropriate notice and opportunity for comment. The Commission is adopting Rule 908(c)(2)(v) as re-proposed, without revision.

Situations can arise where it would be necessary or appropriate to modify or withdraw a substituted compliance order. A modification or withdrawal could be necessary if, after the Commission issues a substituted compliance order, the facts or understandings on which the Commission relied when issuing that order are no longer true. The Commission believes, therefore, that it is appropriate to establish a mechanism whereby it could, at any time and on its own initiative, modify or withdraw a previously issued substituted compliance order with respect to regulatory reporting and public dissemination, after appropriate notice and opportunity for comment. Having made a comparability determination, the Commission should have the ability to periodically review the determination and decide whether the substituted compliance determination should continue to apply.[912] The Commission could determine to condition a substituted compliance order on an ongoing duty to disclose relevant information. Thus, the Commission generally agrees with the commenter who argued that persons making use of substituted compliance should be responsible for informing the Commission if factors on which the Commission relied in making the determination change in any material way.[913]

Two commenters generally supported the re-proposed Rule 908(c)(2)(v) requirement for the Commission to publish for comment proposed withdrawals or modifications.[914] Several commenters also recommended that any final decision by the Commission to modify or withdraw a comparability determination should include a phase-in period to provide market participants adequate opportunity to make necessary adjustments to their compliance systems and processes.[915] The Commission generally agrees with these comments, and believes that all affected persons should have appropriate notice of the introduction, withdrawal, or modification of a substituted compliance order so as to minimize undue disruptions in the market. The Commission will address phase-in issues and timeframes on a case-by-case basis—in the relevant order that introduces, modifies, or withdraws substituted compliance—depending on the facts and circumstances of the particular situation.

6. Consideration of Regulatory Reporting and Public Dissemination in the Commission's Analysis of Substituted Compliance

When the Commission re-proposed Rule 908(c) in the Cross-Border Proposing Release, it expressed a preliminary view that regulatory reporting and public dissemination should be considered together in the Commission's analysis of whether to permit substituted compliance.[916] If the Commission were to adopt that approach, security-based swap transactions would not be eligible for substituted compliance if there were comparable foreign rules in one area but not the other. In other words, a foreign jurisdiction that has comparable rules for regulatory reporting of security-based swap transactions but not comparable rules for public dissemination of such transactions would not have been eligible for substituted compliance under Regulation SBSR.

Three commenters suggested that the Commission consider making separate substituted compliance determinations for regulatory reporting and public dissemination.[917] One of these commenters expressed the view that making separate determinations is appropriate because regulatory reporting and public dissemination serve distinct goals.[918] This commenter also argued that, due to the significant costs associated with documentation, procedures, and technological systems necessary to comply with reporting regimes, the possibility of separate substituted compliance determinations for regulatory reporting and public dissemination could substantially reduce costs for non-U.S. market participants while still achieving the Commission's important market surveillance and transparency goals.[919] One of the other commenters argued that “[d]ifferences among jurisdictions in the timing of reporting . . . should be evaluated in light of systemic risk and market supervisory objectives, rather than policies of facilitating price discovery.” [920] The commenter concluded, therefore, that “[s]uch flexibility should include the potential for separate determinations regarding Start Printed Page 14664regulatory reporting and public dissemination requirements.” [921]

Notwithstanding these comments, the Commission continues to believe that—subject to one exception described below—regulatory reporting and public dissemination should be considered together for purposes of substituted compliance under Rule 908(c). Even if regulatory reporting and public dissemination serve different policy goals, the Commission believes that treating regulatory reporting and public dissemination separately would not further those goals as effectively as considering these requirements together. The Commission agrees with the commenters who argued that regulatory reporting serves important market oversight goals.[922] However, the Commission disagrees that these objectives should be pursued “rather than policies of facilitating price discovery.” [923] Title VII requires the Commission to pursue both sets of policy goals. If the Commission were to permit substituted compliance for regulatory reporting but not for public dissemination, certain transactions could be reported to a foreign trade repository or a foreign regulatory authority in lieu of a registered SDR but would (in theory) still be subject to the Regulation SBSR's public dissemination requirements in Rule 902. Under Regulation SBSR, registered SDRs are charged with publicly disseminating information about security-based swap transactions. To carry out its public dissemination function, a registered SDR must obtain data about security-based swap transactions that Regulation SBSR requires it to publicly disseminate. If this data were reported to a foreign trade repository or foreign regulatory authority under the terms of a substituted compliance order, it would be impractical, if not impossible, for a registered SDR to disseminate that transaction data, as required under Rule 902. In other words, because the registered SDR needs a report of the transaction from the reporting side in order to carry out public dissemination, no purpose would be served—and indeed public dissemination could be compromised—by removing the duty to report the transaction to a registered SDR in lieu of the duty to report it to the foreign trade repository or foreign regulatory authority.[924] The Commission continues to believe that it is impractical and unnecessary to devise an alternate method of public dissemination for security-based swaps that are reported in a foreign jurisdiction pursuant to a substituted compliance order. The Commission concludes, therefore, that a foreign jurisdiction's regulatory reporting and public dissemination requirements—subject to one exception described immediately below—shall be considered together for purposes of evaluating comparability for purposes of a substituted compliance determination under Rule 908(c).

One commenter argued that the Commission should be able to issue a substituted compliance order solely in respect of regulatory reporting that would apply to cross-border security-based swaps that are subject to regulatory reporting but not public dissemination under Regulation SBSR.[925] Under Rule 908(a), as adopted, there is one kind of security-based swap that is subject to regulatory reporting but not public dissemination: A transaction with a non-U.S. person that is registered as a security-based swap dealer or major security-based swap participant on one side and no U.S. person on the other side. Upon further consideration, the Commission agrees with the commenter and is adopting Rule 908(c) with certain revisions that will allow the Commission to issue a substituted compliance order with respect to regulatory reporting but not public dissemination with respect to this subset of cross-border transactions. The Commission has added a second sentence to the language in re-proposed Rule 908(c)(2)(i) to carry out this aim.[926] The Commission also revised one prong of re-proposed Rule 908(c)(iii) to exclude consideration of the reporting timeframes for public dissemination in cases where the Commission is considering a substituted compliance request with respect to cross-border transactions that are, under Regulation SBSR, subject to regulatory reporting but not public dissemination. The Commission believes that offering the possibility of substituted compliance for these kinds of cross-border transactions could reduce compliance burdens for affected persons without reducing the capability of the Commission and other relevant authorities to oversee the security-based swap market.

XVI. Other Cross-Border Issues

A. Foreign Public Sector Financial Institutions

In response to the Regulation SBSR Proposing Release, six commenters expressed concern about applying the requirements of Title VII to the activities of foreign public sector financial institutions (“FPSFIs”), such as foreign central banks and multilateral development banks.[927] One commenter, the European Central Bank (“ECB”), noted that security-based swaps entered into by the Federal Reserve Banks are excluded from the definition of “swap” in the Commodity Exchange Act (“CEA”) [928] and that the functions of foreign central banks and the Federal Reserve are broadly comparable. The ECB argued, therefore, that security-based swaps entered into by foreign central banks should likewise be excluded from the definition of “swap.” [929] A second commenter, the World Bank (representing the International Bank for Reconstruction and Development, the International Finance Corporation, and other multilateral development institutions of which the United States is a member) also argued generally that the term “swap” should be defined to exclude any transaction involving a multilateral development bank.[930] The World Bank further noted that EMIR—the E.U. counterpart to Title VII of the Dodd-Frank Act—would expressly exclude multilateral development banks from its coverage.[931]

The ECB and BIS stated that foreign central banks enter into security-based swaps solely in connection with their public mandates, which require them to Start Printed Page 14665act confidentially in certain circumstances.[932] The ECB argued in particular that public disclosure of its market activities could compromise its ability to take necessary actions and “could cause signaling effects to other market players and finally hinder the policy objectives of such actions.” [933] Another commenter, the Council of Europe Development Banks (“CEB”), while opposing application of Title VII requirements to multilateral development banks generally, did not object to the CFTC and SEC preserving their authority over certain aspects of their transactions, such as by imposing reporting requirements.[934] Similarly, the World Bank believed that the definition of “swap” could be qualified by a requirement that counterparties would treat such transactions as swaps solely for reporting purposes.[935]

In the Cross-Border Proposing Release, the Commission sought additional information to assist with analysis of this issue and asked a number of questions, including questions relating to how active FPSFIs are in the security-based swap market generally; the extent to which FPSFIs engage in security-based swap activity with U.S. persons; whether there are any characteristics of FPSFI activity in the security-based swap market that could make it easier for market observers to detect an FPSFI as a counterparty or that could make it easier to detect an FPSFI's business transactions or market positions; and whether there are steps that the Commission could take to minimize such information leakage short of suppressing all FPSFI trades from public dissemination.[936] The Commission specifically requested that commenters on this issue focus on the security-based swap market, not the market for other swaps. In addition, commenters were requested to answer only with respect to security-based swap activity that would be subject to Regulation SBSR, and not with respect to activity that, because of other factors, would not be subject to Regulation SBSR in any case.[937]

Only a few commenters on the Cross-Border Proposing Release responded to any of these questions or offered additional comments on FPSFI issues related to Regulation SBSR. One commenter, FMS-Wertmanagement (“FMS”), an instrumentality of the government of the Federal Republic of Germany that manages certain legacy financial portfolios, stated that security-based swaps form only a small portion of its overall derivatives portfolio, and that it does not enter into any new security-based swaps “except with the purpose of restructuring existing security-based swaps within the limits of its winding-up strategy.” [938] This commenter, however, did not provide an opinion regarding how any provisions of Regulation SBSR would affect its operations; instead, the primary opinion expressed in the comment was that FPSFIs such as FMS should not be required to register as security-based swap dealers or major security-based swap participants and be subject to the attendant requirements.[939] Another commenter, KfW Bankengruppe (“KfW”), is also an instrumentality of the Federal Republic of Germany and engages in “promotional lending opportunities.” [940] KfW indicated that it has in the past engaged in a small number of security-based swap transactions but none recently.[941] Like FMS, KfW argued that FPSFIs should not be subject to regulation as security-based swap dealers or major security-based swap participants and did not otherwise comment on any issues specific to Regulation SBSR.[942] A third commenter, the World Bank, stated that, “We do not object to reporting of our transactions by U.S. counterparties or non-U.S. counterparties that are independently required to be registered with the Commission. Our concern is limited to ensuring that non-U.S. counterparties that are otherwise not subject to regulation could become subject to certain requirements solely because a transaction with us could be deemed to be a `Transaction conducted within the United States.' We are amenable to any solution that fixes this problem.” [943] A fourth commenter agreed with the World Bank, arguing that the term “transaction conducted within the United States,” which as proposed in the Cross-Border Proposing Release would trigger the regulatory reporting requirement, should be modified to exclude transactions with FPSPIs.[944]

The Commission believes that a security-based swap to which an FPSFI is a counterparty (“FPSFI trade”) should not, on that basis alone, be exempt from regulatory reporting. By the same token, however, the Commission also believes that a security-based swap to which an FPSFI is a counterparty—even if headquartered in the United States—should not, on that basis alone, be subject to regulatory reporting. All FPSFIs, even FPSFIs that are based in the United States, are deemed non-U.S. persons under the Commission's Title VII rules.[945] As with any other security-based swap transaction having a direct counterparty that is a non-U.S. person, a transaction involving an FPSFI as a direct counterparty would be subject to Regulation SBSR's regulatory reporting requirements only if it met one of the conditions in Rule 908(a)(1). Thus, a transaction between an FPSFI and a U.S. person would be subject to regulatory reporting.[946] However, a transaction between an FPSFI and a non-U.S. person would be subject to regulatory reporting only if the non-U.S. person is a registered security-based swap dealer or a registered major security-based swap participant or is guaranteed by a U.S. person, a registered security-based swap dealer, or a registered major security-based swap participant.[947] As noted above,[948] the Commission has declined to adopt the term “transaction conducted within the United States,” which was proposed in the Cross-Border Proposing Release. In the Conduct Re-Proposal, the Commission anticipates soliciting additional comment on such transactions as they relate to regulatory reporting and public dissemination under Regulation SBSR.

Regulatory reporting of FPSFI trades involving, on the other side, a U.S. person, a registered security-based swap dealer, or a registered major security-based swap participant will facilitate Start Printed Page 14666the Commission's ability to carry out our regulatory oversight responsibilities with respect to registered entities, U.S. persons, and the U.S. security-based swap market more generally. The Commission notes that this approach was endorsed by the World Bank and another commenter in response to the original Regulation SBSR Proposing Release.[949]

Finally, the Commission does not believe that a sufficient basis exists to support an exemption from public dissemination for FPSFI trades. The Commission is aware of no characteristics of security-based swap transactions executed by FPSFIs that indicate that an exemption from the public dissemination requirements of Regulation SBSR would be appropriate. No commenters suggested that FPSFIs use security-based swaps differently from other market participants or that publicly disseminating FPSFI trades would provide an inaccurate view of the market. Moreover, based on the comments received, it appears that that FPSFI participation in the security-based swap market—rather than the swap market generally—is extremely limited.[950] Thus, if security-based swap activity consists of such a small portion of FPSFI activities, it is less apparent that an exemption is warranted; the harm that would result from disseminating security-based swap transactions—assuming such harm exists—would, all other things being equal, be less the fewer such transactions there are. The Commission notes, in any event, that Regulation SBSR contains provisions relating to public dissemination that are designed to protect the identity of security-based swap counterparties [951] and prohibit a registered SDR (with respect to uncleared security-based swaps) from disclosing the business transactions and market positions of any person.[952] The Commission also notes that, during the interim phase of Regulation SBSR, no transaction must be reported before 24 hours after execution. This approach is designed to minimize any adverse market impact of publicly disseminating any security-based swap transactions, when the Commission has not yet proposed and adopted block trades thresholds and the associated dissemination delays for the benefit of all counterparties, including FPSFIs. Given these potential protections for all security-based swap counterparties, not just FPSFIs, the Commission does not at this time see a basis to exempt FPSFI trades from public dissemination.

B. Foreign Privacy Laws Versus Duty To Report Counterparty IDs

Rule 901(d), as adopted, sets forth the data elements that must be reported to a registered SDR for regulatory purposes. One such element is the “counterparty ID” of each counterparty, which will enable the Commission to determine every person who is a counterparty, direct or indirect, to a security-based swap. The Commission believes that it could be necessary to assess the positions and trading activity of any counterparty in order to carry out its regulatory duties for market oversight.[953] Since only one side of the transaction is required to report, the reporting side is required to provide the counterparty ID of any counterparty on the other side.[954] Without this requirement, the registered SDR would not have a record of the identity of the other side.

Some commenters cautioned that U.S. persons might be restricted from complying with such a requirement in cases where a security-based swap is executed outside the United States.[955] One of these commenters stated, for example, that the London branch of a U.S. person would need its counterparty's consent to identify that party under U.K. law.[956] The commenter noted that, in this case, the reporting party is located in a jurisdiction where applicable local law restricts the reporting party from reporting the identity of a counterparty. The same commenter added that, in a similar transaction executed by a Paris branch of a U.S. firm, French law requires the branch to obtain the consent of the counterparty every time that it wants to report that counterparty's identity.[957] Another of these commenters urged the Commission to “consider carefully and provide for consistency with, foreign privacy laws, some of which carry criminal penalties for wrongful disclosure of information,” [958] but did not provide further detail. A third commenter argued, without further explanation, that allowing substituted compliance when both parties are not domiciled in the United States could avoid problems with foreign privacy laws conflicting with U.S. reporting requirements.[959]

In the Cross-Border Proposing Release, the Commission stated that it sought to understand more precisely if—and, if so, how—requiring a party to report the transaction pursuant to Regulation SBSR (including disclosure of the other side's identity to a registered SDR) might cause it to violate local law in a foreign jurisdiction where it operates. Before determining whether any exception to reporting the counterparty's counterparty ID might be necessary or appropriate, the Start Printed Page 14667Commission sought additional information about any such foreign privacy laws and asked a number of questions about this issue.[960]

In response to the questions, one commenter listed specific provisions in foreign laws that would prevent the reporting side from identifying its foreign counterparty.[961] Another commenter noted that reporting parties could face issues with identifying the counterparty if “either (i) consent is required for disclosing trade data to the Commission and such consent has not or cannot be obtained or (ii) a counterparty consent is not sufficient to overcome the data privacy restrictions.” [962] This commenter requested that the Commission “recognize in [Regulation SBSR] the necessity for reporting parties to redact/mask counterparty-identifying information” if they reasonably believe that disclosure of such information may violate the laws of another jurisdiction.[963] Commenters did not suggest any rule text for a possible exemption from proposed Rule 901(d)(1)(i) or discuss the effects of granting substituted compliance on avoiding foreign legal barriers to reporting.

Based on the comment received a