2010-32264

FR Doc 2010-32264[Federal Register: December 28, 2010 (Volume 75, Number 248)]

[Proposed Rules]

[Page 81519-81532]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr28de10-55]

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COMMODITY FUTURES TRADING COMMISSION

17 CFR Part 23

RIN 3038-AC96

Confirmation, Portfolio Reconciliation, and Portfolio Compression

Requirements for Swap Dealers and Major Swap Participants

AGENCY: Commodity Futures Trading Commission.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Commodity Futures Trading Commission (Commission or CFTC)

is proposing regulations to implement new statutory provisions

established under Title VII of the Dodd-Frank Wall Street Reform and

Consumer Protection Act (Dodd-Frank Act). Section 731 of the Dodd-Frank

Act added a new section 4s(i) to the Commodity Exchange Act (CEA),

which requires the Commission to prescribe standards for swap dealers

and major swap participants related to the timely and accurate

confirmation, processing, netting, documentation, and valuation of

swaps. The proposed rules would establish requirements for swap

confirmation, portfolio reconciliation, and portfolio compression for

swap dealers and major swap participants.

DATES: Submit comments on or before February 28, 2011.

ADDRESSES: You may submit comments, identified by RIN number 3038-AC96

and Confirmation, Portfolio Reconciliation, and Portfolio Compression

Requirements for Swap Dealers and Major Swap Participants, by any of

the following methods:

Agency Web site, via its Comments Online process at http:/

/comments.cftc.gov. Follow the instructions for submitting comments

through the Web site.

Mail: David A. Stawick, Secretary of the Commission,

Commodity Futures Trading Commission, Three Lafayette Centre, 1155 21st

Street, NW., Washington, DC 20581.

Hand Delivery/Courier: Same as mail above.

Federal eRulemaking Portal: http://www.regulations.gov.

Follow the instructions for submitting comments.

Please submit your comments using only one method.

All comments must be submitted in English, or if not, accompanied

by an English translation. Comments will be posted as received to

http://www.cftc.gov. You should submit only information that you wish

to make available publicly. If you wish the Commission to consider

information that may be exempt from disclosure under the Freedom of

Information Act, a petition for confidential treatment of the exempt

information may be submitted according to the established procedures in

Sec. 145.9 of the Commission's regulations, 17 CFR 145.9.

The Commission reserves the right, but shall have no obligation, to

review, pre-screen, filter, redact, refuse or remove any or all of your

submission from http://www.cftc.gov that it may deem to be

inappropriate for publication, such as obscene language. All

submissions that have been redacted

[[Page 81520]]

or removed that contain comments on the merits of the rulemaking will

be retained in the public comment file and will be considered as

required under the Administrative Procedure Act and other applicable

laws, and may be accessible under the Freedom of Information Act.

FOR FURTHER INFORMATION CONTACT: Sarah E. Josephson, Associate

Director, 202-418-5684, [email protected]; Frank N. Fisanich, Special

Counsel, 202-418-5949, [email protected]; or Jocelyn Partridge,

Special Counsel, 202-418-5926, [email protected]; Division of

Clearing and Intermediary Oversight, Commodity Futures Trading

Commission, Three Lafayette Centre, 1155 21st Street, NW., Washington,

DC 20581.

SUPPLEMENTARY INFORMATION:

I. Background

On July 21, 2010, President Obama signed the Dodd-Frank Act.\1\

Title VII of the Dodd-Frank Act \2\ amended the Commodity Exchange Act

(CEA) \3\ to establish a comprehensive regulatory framework to reduce

risk, increase transparency, and promote market integrity within the

financial system by, among other things: (1) Providing for the

registration and comprehensive regulation of swap dealers and major

swap participants; (2) imposing clearing and trade execution

requirements on standardized derivative products; (3) creating rigorous

recordkeeping and real-time reporting regimes; and (4) enhancing the

Commission's rulemaking and enforcement authorities with respect to all

registered entities and intermediaries subject to the Commission's

oversight.

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\1\ See Dodd-Frank Wall Street Reform and Consumer Protection

Act, Public Law 111-203, 124 Stat. 1376 (2010). The text of the

Dodd-Frank Act may be accessed at http://www.cftc.gov/LawRegulation/

OTCDERIVATIVES/index.htm.

\2\ Pursuant to Section 701 of the Dodd-Frank Act, Title VII may

be cited as the ``Wall Street Transparency and Accountability Act of

2010.''

\3\ 7 U.S.C. 1 et seq.

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Section 731 of the Dodd-Frank Act amends the CEA by adding a new

Section 4s, which sets forth a number of requirements for swap dealers

and major swap participants. Specifically, section 4s(i) of the CEA

establishes swap documentation standards for those registrants.

Section 4s(i)(1) requires swap dealers and major swap participants

to ``conform with such standards as may be prescribed by the Commission

by rule or regulation that relate to timely and accurate confirmation,

processing, netting, documentation, and valuation of all swaps.'' Under

section 4s(i)(2), the Commission is required to adopt rules ``governing

documentation standards for swap dealers and major swap participants.''

The Commission is proposing the regulations on swap confirmation,

portfolio reconciliation, and portfolio compression \4\ discussed

below, pursuant to the authority granted under sections 4s(h)(1)(D),

4s(h)(3)(D), 4s(i), and 8a(5) of the CEA. \5\ The Dodd-Frank Act

requires the Commission to promulgate these provisions by July 15,

2011.

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\4\ The Commission may propose additional rules related to

documentation provisions under section 4s(i) of the CEA.

\5\ Section 8a(5) of the CEA authorizes the Commission to

promulgate such regulations as, in the judgment of the Commission,

are reasonably necessary to effectuate any of the provisions or to

accomplish any of the purposes of the CEA.

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The proposed regulations reflect consultation with staff of the

following agencies: (i) The Securities and Exchange Commission; (ii)

the Board of Governors of the Federal Reserve System; (iii) the Office

of the Comptroller of the Currency; and (iv) the Federal Deposit

Insurance Corporation. Staff from each of these agencies has had the

opportunity to provide oral and/or written comments to the proposal,

and the proposed regulations incorporate elements of the comments

provided.

II. Proposed Regulations

The proposed regulations would prescribe standards for the timely

and accurate confirmation of swaps and would require the reconciliation

and compression of swap portfolios. Confirmation, portfolio

reconciliation, and portfolio compression have been recognized as

important post-trade processing mechanisms for reducing risk and

improving operational efficiency by both current market participants

and their regulators.

With respect to confirmation, prudent practice requires that, after

coming to an agreement on the terms of a transaction, parties document

the transaction in a complete and definitive written record so there is

legal certainty about the terms of their agreement. Through portfolio

reconciliation, counterparties are able to resolve any discrepancies or

disputes as early as possible and arrive at an understanding of their

overall risk exposure to one another. Portfolio compression allows for

a reduction in outstanding trade count and outstanding gross notional

value by replacing redundant trades with a smaller number of trades and

reduced gross notional value. This process reduces operational risk and

increases operational efficiency because there are fewer trades to

maintain, and results in a more accurate expression of market size.

In the past few years, market participants and regulators have paid

particular attention to the post-trade processing of swaps. For

example, operational issues associated with the over-the-counter (OTC)

derivatives market have been the focus of reports and recommendations

by the President's Working Group on Financial Markets (PWG).\6\ In

response to the financial crisis in 2008, the PWG called on the

industry to improve trade matching and confirmation and to promote

portfolio reconciliation.

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\6\ See, e.g., Press Release, ``President's Working Group on

Financial Markets, Progress Summary on OTC Derivatives Operational

Improvements'' (Nov. 2008).

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Since 2005, the Federal Reserve Bank of New York (FRBNY) has led a

targeted, supervisory effort to enhance operational efficiency and

performance in the OTC derivatives market, by increasing automation in

processing and by promoting the timely confirmation of trades. Known as

the OTC Derivatives Supervisors' Group (ODSG), the FRBNY leads an on-

going effort with OTC derivatives dealers' primary supervisors, trade

associations, industry utilities, and private vendors, through which

market participants (including buy-side participants) regularly set

goals and commitments to bring infrastructure, market design, and risk

management improvements to all OTC derivatives asset classes. Over the

years, the ODSG has expanded its focus from credit derivatives to

include interest rate derivatives, equity derivatives, foreign exchange

derivatives, and commodity derivatives. Along with this expanded focus

has come increased engagement with market participants on cross-asset

class issues. Specifically, the ODSG encouraged the industry to commit

itself to a number of reforms, including improved operational

performance with respect to the OTC derivatives confirmation process,

portfolio reconciliation, and portfolio compression. The regulations

proposed by the Commission would build upon the ODSG's work.

It is important to note at the outset, that the Commission expects

that swap dealers and major swap participants would be able to comply

with each of the proposed rules by executing a swap on a swap execution

facility (SEF) or on a designated contract market (DCM), or by clearing

the swap through a derivatives clearing organization (DCO). For swaps

executed on a SEF or a DCM, the SEF or DCM will provide the

counterparties with a definitive written

[[Page 81521]]

record of the terms of their agreement, which will serve as a

confirmation of the swap. Similarly, if a swap is executed bilaterally,

but subsequently submitted to a DCO for clearing, the DCO will require

a definitive written record of all terms to the counterparties'

agreement prior to novation by the DCO; this too would serve as a

confirmation of the swap.

When a swap is cleared by a central counterparty, the problems that

portfolio reconciliation is designed to solve (agreement on all terms

and the valuation of the swap) no longer exist because the

clearinghouse (1) requires a definitive written record of all terms of

the swap; and (2) arrives at a settlement price for all cleared swaps

on a daily basis. Additionally, the Commission is considering a

proposed regulation that would require DCOs to offer portfolio

compression exercises on a regular basis. The proposed rule for swap

dealers and major swap participants has been designed to complement the

proposed DCO rule.

In designing these rules, the Commission has taken care to minimize

the burden on those parties that will not be registered with the

Commission as swap dealers or major swap participants. To the extent

that market participants believe that additional measures should be

taken to reduce the burden or increase the benefits of confirmation,

reconciliation, and compression for the swaps market, the Commission

welcomes all comments.

The Commission requests comment on all aspects of proposed

Sec. Sec. 23.500 (definitions), 23.501 (confirmation), 23.502

(portfolio reconciliation), and 23.503 (portfolio compression), as well

as comment on the specific provisions and issues highlighted in the

discussion below. The Commission further requests comment on an

appropriate effective date for final regulations, including comment on

whether it would be appropriate to have staggered or delayed effective

dates for some regulations based on the nature or characteristics of

the activities or entities to which they apply. The Commission

recognizes that there will be differences in the size and scope of the

business of particular swap dealers and major swap participants.

Therefore, comments are solicited on whether certain provisions of the

proposed regulations should be modified or adjusted to reflect the

differences among swap dealers and major swap participants or

differences among asset classes.

A. Swap Confirmation

1. Background

Over the past several years, OTC derivatives market participants

and their regulators have paid particular attention to the timely

confirmation of swaps. The Government Accountability Office (GAO) found

that the rapid expansion of trading volume of swaps, such as credit

derivatives since 2002, caused stresses on the operational

infrastructure of market participants. These stresses in turn caused

the participants' back office systems to fail to confirm the increased

volume of trades for a period of time.\7\ The GAO found that the lack

of automation in trade processing and the purported assignment of

positions by transferring parties to third parties without notice to

their counterparties were factors contributing to this backlog. If

transactions, whether newly executed or recently transferred to another

party, are left unconfirmed, there is no definitive written record of

the contract terms. Thus, in the event of a dispute, the terms of the

agreement must be reconstructed from other evidence, such as e-mail

trails or recorded trader conversations. This process is cumbersome and

may not be wholly accurate. Moreover, if purported transfers of swaps,

in whole or in part, are made without giving notice to the remaining

parties and obtaining their consent, disputes may arise as to which

parties are entitled to the benefits and subject to the burdens of the

transaction.

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\7\ U.S. Government Accountability Office, ``Credit Derivatives:

Confirmation Backlogs Increased Dealers' Operational Risks, But Were

Successfully Addressed After Joint Regulatory Action,'' GAO-07-716

(2007) at pages 3-4.

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As the work of the ODSG demonstrates, the industry is capable of

swift movement to contemporaneous execution and confirmation. A large

back-log of unexecuted confirmations in the credit default swap (CDS)

market created by prolonged negotiations and inadequate confirmation

procedures were the subject of the first industry commitments made by

participating dealers to ODSG.\8\ In October 2005, the participating

dealers committed to reduce by 30% the number of confirmations

outstanding more than 30 days within four months. In March 2006, the

dealers committed to reduce the number of outstanding confirmations by

70% by June 30, 2006. By September 2006, the industry had reduced the

number of all outstanding CDS confirmations by 70%, and the number of

CDS confirmations outstanding more than 30 days by 85%. The industry

achieved these targets largely by moving 80% of total trade volume in

CDS to confirmation on electronic platforms, eliminating backlogs in

new trades. Today, over 90% of ``electronically eligible'' \9\ CDS

trades are confirmed electronically, the majority on the day of

execution and up to 98% within two days.\10\

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\8\ See October 4, 2005 industry commitment letter to the

Federal Reserve Bank of New York, available at http://

www.newyorkfed.org/newsevents/news_archive/markets/2005/

an050915.html.

\9\ It remains unclear precisely how much of the total CDS

market is not ``electronically eligible,'' as eligibility is

determined by the OTC derivatives market participants.

\10\ See March 1, 2010 Summary of OTC Derivatives Commitments

provided to the Federal Reserve Bank of New York, available at

http://www.newyorkfed.org/newsevents/news/markets/2010/100301_

table.pdf.

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The ODSG has established a supervisory goal for all transactions to

be confirmed as soon as possible after the time of execution. Ideally,

this would mean that there would be a written or electronic document

executed by the parties to a swap for the purpose of evidencing all of

the terms of the swap, including the terms of any termination (prior to

its scheduled maturity date), assignment, novation, exchange, or

similar transfer or conveyance of, or extinguishing of rights or

obligations.

In the case of electronically processed transactions, all such

transactions should be matched and confirmed, at a minimum, on the same

day the trade was executed. For electronically processed transactions,

confirmation typically is effected by a third-party ``matching''

process. If transactions are not confirmed in a timely manner, backlogs

of outstanding unconfirmed trades develop, increasing risk. Timely and

accurate confirmation of transactions is critical for all downstream

operational and risk management processes, including the correct

calculation of cash flows and discharge of settlement obligations as

well as accurate measurement of counterparty credit exposures. Timely

confirmation also allows any rejections, exceptions, and/or

discrepancies to be identified and resolved more quickly.

Another ODSG objective is a marketplace that electronically

processes as many transactions as possible in as many parts of the

processing life cycle as possible, but particularly in the ``upstream''

parts of the life cycle, where transaction information is first entered

into the system (trade capture). To achieve this objective, as many

transactions as possible and practicable should be executed on

electronic platforms, such

[[Page 81522]]

as SEFs, in order to approach the ideal of ``straight-through

processing.'' Otherwise, transactions should be keyed into electronic

systems as soon as possible after execution.

2. Proposed Confirmation Rule

To promote the efficient operation of the swap market, and to

facilitate market participants' overall risk management, the Commission

is proposing confirmation Sec. 23.501.

For the purposes of proposed Sec. 23.501, proposed Sec. 23.500

would provide certain critical definitions pertaining to confirmation.

An acknowledgment would be defined as a written or electronic record of

all the terms of a swap signed and sent by one party to another. When

one party acknowledges the terms of a swap and its counterparty

verifies it, the result is the issuance of a confirmation that reflects

the terms of the swap between the parties. A confirmation thus would be

defined as a written or electronic record of a swap that has been

signed and sent by one party and verified by the other where that

record has been manually, electronically, or by some other legally

equivalent means, signed by the receiving counterparty. Finally,

proposed Sec. 23.500 would define execution to be a legally-binding

oral, written, or electronic agreement by the parties. For the purposes

of the confirmation rule, the term swap transaction is defined to

include any event that would result in a new swap or a change in the

terms of a swap, including execution, termination, assignment,

novation, exchange, transfer, amendment, conveyance, or extinguishing

of rights or obligations under a swap.

With regard to both acknowledgments and confirmations, the

Commission intends that all the terms of a swap transaction be provided

for acknowledgment and confirmation. The objective is that parties have

full written agreement on all terms as soon as practicable after

execution and also upon any ownership event during the life of the

swap. Such life cycle events would include any termination (prior to

the scheduled maturity date of the swap), assignment, novation,

exchange, transfer, amendment, or conveyance of, or extinguishing of

rights or obligations under the swap.\11\ For each of these events, the

parties should have written documentation evidencing all the terms of

the transaction, as soon as possible after the transaction occurs. This

approach to documenting ``life cycle event data'' is consistent with

the Commission's proposed rules for reporting swap data to a swap data

repository.\12\

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\11\ Life cycle events would also include corporate actions

affecting a security or securities on which the swap is based (e.g.,

a merger, dividend, stock split or bankruptcy).

\12\ The Notice of Proposed Rulemaking for Swap Data

Recordkeeping and Reporting Requirements is available on the

Commission's Web site: http://comments.cftc.gov/FederalRegister/

Proposed.aspx.

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The timely and accurate confirmation of all swaps and life cycle

events for existing swaps would ensure that the parties know the terms

of their executed transactions and the identities of their

counterparties at all times. Confirming all swap transactions on the

day of execution should be standard for all market participants.

However, the Commission recognizes some entities that will not be

registered as swap dealers or major swap participants may not have the

operational capacity to confirm their swap transactions as quickly as

swap dealers and major swap participants. Accordingly, the Commission

is proposing a bifurcated approach for confirmations. Swap dealers and

major swap participants entering into swap transactions with other swap

dealers or major swap participants would be required to obtain a

confirmation on the same calendar day as execution (i.e., no later than

T+0).

On the other hand, swap dealers and major swap participants

entering into swap transactions with counterparties that are not swap

dealers or major swap participants would be required to send an

acknowledgment for each swap on the same calendar day as execution

(i.e., no later than T+0). Swap dealers and major swap participants

would then have policies and procedures in place to confirm the swap

with financial entities as defined in proposed Sec. 23.500 \13\ on the

same calendar day as execution and with all other entities not later

than the next business day following execution.

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\13\ This definition is taken from the end user exception to the

clearing requirement under section 2(h)(7)(C)(i) of the CEA. The

term financial entity includes the following eight entities: (i) A

swap dealer; (ii) a security-based swap dealer; (iii) a major swap

participant; (iv) a major security-based swap participant; (v) a

commodity pool as defined in section 1a(10) of the CEA; (vi) a

private fund as defined in section 202(a) of the Investment Advisers

Act of 1940 (15 U.S.C. 80-b-2(a)); (vii) an employee benefit plan as

defined in paragraphs (3) and (32) of section 3 of the Employee

Retirement Income Security Act of 1974 (29 U.S.C. 1002); or (viii) a

person predominantly engaged in activities that are in the business

of banking or financial in nature, as defined in section 4(k) of the

Bank Holding Company Act of 1956. See 7 U.S.C. 2(h)(7)(C)(i). The

definition would include the statutory exclusion and limitation as

contained in section 2(h)(7)(C) and also would include any

Commission regulations promulgated pursuant to the statutory

section.

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The Commission also is proposing that the times prescribed for

achieving swap acknowledgment and confirmation vary depending upon

whether transactions are electronically executed or electronically

processed. Under proposed Sec. 23.501(a)(1), all swap dealers and

major swap participants entering into swap transactions with other swap

dealers or major swap participants would be required to confirm their

swap transactions according to the following timeframe:

For any swap transaction that has been executed and

processed electronically, within 15 minutes of execution;

For any swap transaction that is not electronically

executed, but that will be processed electronically, within 30 minutes

of execution; or

For any swap transaction that cannot be processed

electronically by the swap dealer or major swap participant, within the

same calendar day as execution.

Under proposed Sec. 23.501(a)(2), swap dealers and major swap

participants entering into swap transactions with counterparties that

are not swap dealers or major swap participants would be required to

send an acknowledgment of each swap transaction according to the

following timeframe:

For any swap transaction that has been executed and

processed electronically, within 15 minutes of execution;

For any swap transaction that is not executed

electronically, but that will be processed electronically, within 30

minutes after execution; or

For any swap transaction that cannot be processed

electronically by the swap dealer or major swap participant, within the

same calendar day as execution.

For those swap transactions entered into with counterparties that

are not swap dealers or major swap participants, under proposed Sec.

23.501(a)(3), swap dealers and major swap participants would be

required to establish written policies and procedures reasonably

designed to ensure confirmation with financial entities on the same

calendar day as execution and with all other entities by the next

business day after the swap transaction is executed. These procedures

must include a requirement that, prior to entering into any swap

transaction, the swap dealer or major swap participant furnish to a

prospective counterparty, or receive from a prospective counterparty, a

draft acknowledgment specifying all terms of the swap transaction other

than pricing and terms to be definitively agreed to at execution. As is

currently the custom in many swap markets, including credit

[[Page 81523]]

and equity derivative markets, the parties may rely on a standard

confirmation agreement.

Under proposed Sec. 23.501(b), a swap dealer or major swap

participant would be required to keep records regarding the processing

of swap acknowledgments and confirmations. These records would include

the time and date of transmission or receipt of any acknowledgment or

confirmation, the length of time between transmission of any

acknowledgment to a counterparty and receipt of the signed

confirmation, and the length of time between execution and confirmation

of the swap.

In order to retain flexibility for all market participants, the

proposed rules do not prescribe a particular venue or platform for

confirmation. As noted above, currently many swap transactions are

electronically processed by third-party ``matching'' services. While

the Commission encourages the continued use and expansion of these

services, the approach taken in the proposed rule would allow parties

the ability to confirm bilaterally through whatever means they select,

so long as they are able to meet the schedule laid out in the rule.

In a similar effort to retain flexibility, at this time, the

Commission is not prescribing the acknowledgment or confirmation

documentation that market participants must use. The Commission

encourages the use of master confirmation agreements and other

standardized documentation that has been developed by the industry in

an effort to reduce confirmation backlogs, among other things. However,

the most critical aspect of the confirmation rule is that all the terms

of the swap are agreed to in writing and in a timely manner.

The proposed rules would apply to all new swaps and to all swap

transactions, as that term is defined in the rules, entered into after

the effective date of the regulation.

3. Comments Requested

The Commission requests comment on all aspects of proposed Sec.

23.501. In particular, the Commission requests comment on the following

questions:

Does the proposed rule appropriately allocate the

responsibility for providing the swap acknowledgments?

Is it feasible to require that all acknowledgments be

provided electronically?

Should the proposed rule require swap dealers and major

swap participants to provide a swap acknowledgment or confirmation more

quickly, particularly for transactions that are executed or processed

electronically?

Does the proposed rule provide sufficient time for swap

dealers and major swap participants to provide swap acknowledgments to

their counterparties?

Are there swap transactions for which all of the terms

required to be included on an acknowledgment or in a confirmation would

not be known on the same calendar day as execution? If so, please

describe these swap transactions and include the terms that would not

be known on the same calendar day as execution, as well as the reason

these terms would not be known.

Is it necessary to clarify further that the confirmation

rule would apply to life cycle events, such as termination, assignment,

novation, exchange, transfer, amendment, or conveyance?

Are there other post-execution events for which a

confirmation should be executed?

Should counterparties be permitted to agree expressly that

certain life cycle events (such as assignment of payable rights), do

not require subsequent confirmations? Are there life cycle events that

can be carved out of the rule while still achieving the purpose of the

rule? Should more time be permitted for confirmation of certain life

cycle events, such as transfers resulting from a merger, consolidation,

or transfer of all assets to another entity?

Should the Commission require that electronic matching

services or confirmation platforms be used where reasonably

practicable?

Does the term ``processed electronically'' require more

clarification? If so, what definition would be effective and flexible

enough to accommodate future market innovation?

Should the Commission require that all swaps be processed

electronically?

Are there circumstances where swap dealers and major swap

participants have the ability to process a transaction electronically,

but should not be required to do so?

Has the Commission properly accounted for current industry

practice with respect to the time necessary to confirm swap

transactions?

Would the proposed rule unduly restrict the types of swaps

that swap dealers and major swap participants may enter into or the

persons that may be their counterparties?

Should executing a swap on a SEF or DCM be deemed to

satisfy the confirmation requirement?

Should clearing a swap through a DCO be deemed to satisfy

the confirmation requirement?

Should the terms calendar day and business day be further

defined and has the rule properly accounted for counterparties in

different time zones executing swaps?

B. Swap Portfolio Reconciliation

1. Background

Section 4s(i) of the CEA directs the Commission to prescribe

regulations for the timely and accurate confirmation, processing,

documentation, and valuation of all swaps entered into by swap dealers

and major swap participants. Disputes related to confirming the terms

of a swap, as well as swap valuation disputes,\14\ have long been

recognized as a significant problem in the OTC derivatives market.

Portfolio reconciliation is considered an effective means of

identifying and resolving these disputes. Specifically, portfolio

reconciliation is a post-execution processing and risk management

technique that is designed to: (1) Identify and resolve discrepancies

between the counterparties with regard to the terms of a swap either

immediately after execution or during the life of the swap; (2) ensure

effective confirmation of all the terms of the swap; and (3) identify

and resolve discrepancies between the counterparties regarding the

valuation of the swap. In some instances, portfolio reconciliation also

may facilitate the identification and resolution of discrepancies

between the counterparties with regard to valuations of collateral held

as margin.

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\14\ See ISDA Collateral Committee, ``Commentary to the Outline

of the 2009 ISDA Protocol for Resolution of Disputed Collateral

Calls,'' June 2, 2009 (stating ``Disputed margin calls have

increased significantly since late 2007, and especially during 2008

have been the driver of large (sometimes > $1 billion) un-

collateralized exposures between professional firms.'').

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The Commission recognizes that the industry has made significant

progress in adopting the use of portfolio reconciliation to decrease

the number of swap disputes.\15\ In December 2008, the ODSG's group of

14 major dealers committed to execute daily portfolio reconciliations

for collateralized portfolios in excess of 500 trades between

participating dealers by June of 2009.\16\ As of May 2009, all

participating dealers were satisfying this commitment. In October 2009,

the

[[Page 81524]]

ODSG committed to publishing a feasibility study on market-wide

portfolio reconciliation that would set forth how regular portfolio

reconciliation could be extended beyond the ODSG dealers to include

smaller banks, buy-side participants, and derivative end users.

Consistent with this publication, the ODSG dealers expanded their

portfolio reconciliation commitment in March 2010 to include monthly

reconciliation of collateralized portfolios in excess of 1,000 trades

with any counterparty. Most recently, the industry has been preparing a

new ``Convention on the Investigation of Disputed Margin Calls'' and a

new ``Formal Market Polling Procedure'' that are intended to ``create a

consistent and predictable process * * * that eliminates present

uncertainties and delays.'' \17\

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\15\ The Commission also recognizes and encourages the industry

practice of immediately transferring undisputed collateral amounts.

\16\ See June 2, 2009 summary of industry commitments, available

at http://www.isda.org/c_and_a/pdf/060209table.pdf.

\17\ See ``ISDA 2010 Convention on the Investigation of Disputed

Margin Calls'' and ``ISDA 2010 Formal Market Polling Procedure.''

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Accordingly, the Commission is proposing Sec. 23.502, which would

require swap dealers and major swap participants to reconcile their

portfolios with one another and provide counterparties who are not

registered as swap dealers or major swap participants with regular

opportunities for portfolio reconciliation. In order for the

marketplace to realize the full risk reduction benefits of portfolio

reconciliation, the Commission is proposing to expand portfolio

reconciliation to all transactions, whether collateralized or

uncollateralized. For the swap market to operate efficiently and to

reduce systemic risk, portfolio reconciliation should be a proactive

process that delivers a consolidated view of counterparty exposure down

to the transaction level. By identifying and managing mismatches in key

economic terms and valuation for individual transactions across an

entire portfolio, overall risk can be identified and reduced.

2. Proposed Portfolio Reconciliation Rule

For the purposes of proposed Sec. 23.502, swap portfolio

reconciliation would be defined in proposed Sec. 23.500 as a process

by which the two parties to one or more swaps: (1) Exchange the terms

of all swaps in the portfolio between the parties; (2) exchange each

party's valuation of each swap in a portfolio between the parties as of

the close of business on the immediately preceding business day; and

(3) resolve any discrepancy in material terms and valuations. Valuation

would be defined in proposed Sec. 23.500 as the current market value

or net present value of a swap, and material terms would be defined as

all terms of a swap required to be reported in accordance with part 45

of this chapter.

Proposed Sec. 23.502(a) would require swap dealers and major swap

participants to reconcile swap portfolios with other swap dealers or

major swap participants with the following frequency: Daily for

portfolios consisting of 300 or more swaps, at least weekly for

portfolios consisting of 50 to 300 swaps, and at least quarterly for

portfolios consisting of fewer than 50 swaps. Swap dealers and major

swap participants would be required to resolve immediately any

discrepancy in a material term identified as part of a portfolio

reconciliation process. The Commission is proposing an immediate

resolution requirement for material terms for the same reasons that

necessitate timely confirmation--parties need to know the terms of

their executed agreements with one another. A discrepancy in the terms

of a swap likely indicates that the parties have failed to confirm the

swap in accordance with Commission regulations, and, therefore, the

parties should take immediate action to resolve the discrepancy. This

requirement would support and ensure compliance with proposed Sec.

23.501, which requires a confirmation of all terms of a swap.

The Commission believes that requiring reconciliation of all swap

portfolios among swap dealers and major swap participants (rather than

only collateralized portfolios, as contemplated by the ODSG work) is

appropriate because CEA section 4s(e) requires that swap dealers and

major swap participants will be subject to minimum capital and margin

requirements. As a result, the Commission anticipates that most, if not

all, swaps entered by swap dealers and major swap participants will be

subject to some form of collateralization. The Commission also believes

that requiring more frequent reconciliation of smaller portfolios is

appropriate because section 2(a)(13)(G) of the CEA requires all swaps

to be reported to a registered swap data repository, and, therefore,

the Commission anticipates that swap dealers and major swap

participants will be able to efficiently reconcile their internal

records with their counterparties electronically by reference to data

in the repositories. The threshold of 300 swaps for daily

reconciliation is intended to capture swap portfolios where there is a

high likelihood that the swap dealer or major swap participant's

counterparty will have the technological capacity to perform

reconciliation processes electronically.

Under proposed Sec. 23.502(a)(5), swap dealers and major swap

participants would be required to resolve any discrepancy in a

valuation identified as part of a portfolio reconciliation process

within one business day. The Commission recognizes that there may be

reasonable grounds for some variation in the calculation of swap

valuation at any given time. Consequently, the proposed rule would not

require that swap dealers and major swap participants expend resources

to resolve all discrepancies in the valuation of the swap, but only if

the difference between the lower valuation and the higher is greater

than 10%.

In addition, given that there are a number of services and

industry-led initiatives that may facilitate resolution of valuation

disputes, at this time the Commission is not proposing to mandate that

swap dealers and major swap participants implement any specific

procedure for resolution of a discrepancy in the valuation of a swap.

Rather, it is only proposing a deadline for dispute resolution of one

business day following discovery of such discrepancy.

For swap portfolios with entities other than swap dealers or major

swap participants, proposed Sec. 23.502(b) would require swap dealers

and major swap participants to establish written policies and

procedures to perform reconciliation, but would not prescribe the

manner in which the reconciliation must be performed. For example, the

exchange of terms and valuations between the counterparties may consist

of one party reviewing the details and valuations delivered by the

other party and either affirming or objecting to such details and

valuations. The frequency parameters of portfolio reconciliation would

be similar to those for swap portfolios between swap dealers or major

swap participants.\18\ There are some important distinctions in the

proposed treatment of swap portfolios between a swap dealer or major

swap participant and others that promote flexibility for those entities

that will not be registered with the Commission. Swap dealers and major

swap participants would be required simply to establish written

procedures reasonably designed to resolve any discrepancies in the

material terms or valuation of each swap identified as part

[[Page 81525]]

of a portfolio reconciliation process in a timely fashion. Again,

differences in valuation of a swap need not be deemed a discrepancy

unless the difference between the lower valuation and the higher

valuation is greater than 10% of the higher valuation.

---------------------------------------------------------------------------

\18\ The frequency thresholds are similar: Daily for portfolios

consisting of 500 or more swaps, at least weekly for portfolios

consisting of 100-500 swaps, and at least quarterly for portfolios

consisting of less than 100 swaps.

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Proposed Sec. 23.502(c) would create a safe harbor for cleared

swaps because portfolio reconciliation is needed primarily for

uncleared swaps. When swaps are cleared, the clearinghouse requires

that each swap be matched prior to novation by the clearinghouse.

Moreover, once cleared, clearinghouses determine daily settlement

prices, which preclude any valuation disputes.

The proposed rule would apply to all swaps within a swap portfolio

as of the effective date of the regulation.

Finally, proposed Sec. 23.502(d) would require that swap dealers

and major swap participants maintain records of each discrepancy

identified during portfolio reconciliation and the length of time taken

to resolve that discrepancy.

3. Comments Requested

The Commission requests comment on all aspects of proposed Sec.

23.502(d). In particular, the Commission requests comment on the

following questions:

Are the proposed deadlines for swap portfolio discrepancy

resolution in the proposed regulation appropriate?

Are the reconciliation thresholds and frequency

requirements appropriate?

Are swap dealers and major swap participants likely to

have a large number of counterparties with whom they would be required

to perform daily reconciliation that do not have the technological

capacity to perform reconciliation processes electronically?

Is the proposal that a valuation difference of less than

10% not be deemed to be a discrepancy appropriate? If not, please

provide a suggested valuation discrepancy threshold.

Should the proposed rule include a provision that requires

discrepancy resolution if the aggregate of valuation differences of

less than 10% across a portfolio exceeds a certain threshold? If so,

please provide a suggested threshold.

How would the requirement to resolve valuation

discrepancies in one day for swaps among swap dealers and major swap

participants affect the very detailed and complex industry initiatives

currently being considered for resolving valuation disputes?

Should all terms of a swap transaction be reconciled or

just the key economic terms?

Should all discrepancies in swap transaction terms be

resolved or just the material ones?

Should the definition of material terms be clarified?

Should financial entities as defined in proposed Sec.

23.500 be required to participate in portfolio reconciliation under

proposed Sec. 23.502(a)?

C. Portfolio Compression

1. Background

Section 4s(i) of the CEA directs the Commission to prescribe

regulations for the timely and accurate processing and netting of all

swaps entered into by swap dealers and major swap participants.

Portfolio compression is an important, post-trade processing and

netting mechanism that can be an effective and efficient tool for the

timely and accurate processing and netting of swaps by market

participants. Accordingly, the Commission is proposing Sec. 23.503,

which would require swap dealers and major swap participants to engage

in certain bilateral and multilateral portfolio compression exercises.

Portfolio compression is a mechanism whereby substantially similar

transactions among two or more counterparties are terminated and

replaced with a smaller number of transactions of decreased notional

value in an effort to reduce the risk, cost, and inefficiency of

maintaining unnecessary transactions on the counterparties' books. In

many cases, these redundant or economically-equivalent positions serve

no useful business purpose, but can create unnecessary risk,\19\ as

well as operational and capital inefficiencies. In a portfolio

compression exercise, swap market participants whose combined

portfolios include outstanding transactions that contain substantially

similar economic terms and/or that would result in redundant payments

wholly or partially net their swaps by terminating the original swaps

and replacing them with a smaller number of new transactions that have

a lower gross notional value.

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\19\ Federal Reserve Bank of New York Staff Report No. 424:

``Policy Perspectives on OTC Derivatives Market Infrastructure,''

Jan. 2010 (revised Mar. 2010).

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Market vendors assert that as many as 40,000 trades can be

terminated in a single portfolio compression cycle.\20\ Because

portfolio compression participants are permitted to establish their own

credit, market, and cash payment risk tolerances and to establish their

own mark-to-market values for the transactions to be compressed, the

process does not alter the risk profiles of the individual participants

beyond a level acceptable to the participant.

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\20\ See http://www.trioptima.com.

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Portfolio compression exercises can be performed on a bilateral or

multilateral basis. Multilateral compression exercises are preferable

because the larger number of participants significantly increases the

number of trades that can be eliminated and removes the need for

bilateral negotiation between counterparties. In a multilateral

portfolio compression exercise, the replacement swaps may be with the

same or different counterparties.

The benefits of portfolio compression to both individual market

participants and to the market as a whole are considerable. The reduced

transaction count decreases operational risk generally as there are

fewer trades to maintain, process, and settle.\21\ The reduction in the

outstanding gross notional value of the swaps also allows for increased

capital liquidity and efficiency. Firms can set aside less capital for

their positions while maintaining their desired risk positions in the

market. The diminished operational risk for the individual market

participants achieved by portfolio compression, in turn, may lessen

systemic risk and enhance the overall stability of the financial

markets. Compression also may provide a more accurate expression of

overall market size and composition, and provide market participants

with a more precise picture of their exposures.

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\21\ See ``ISDA 2009 A Yearbook of ISDA Activities,''

International Swaps and Derivatives Association, Inc. (2009).

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The usefulness of portfolio compression as a risk management tool

has been acknowledged widely. In 2008, the PWG identified frequent

portfolio compression of outstanding trades as a key policy objective

in the effort to strengthen the OTC derivatives market

infrastructure.\22\ Similarly, the 2010 staff report outlining policy

perspectives on OTC derivatives infrastructure issued by the FRBNY

identified trade compression as an element of strong risk management

and recommended that market participants engage in regular, market-wide

portfolio compression exercises.\23\

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\22\ ``Policy Objectives for the OTC Derivatives Markets,''

President's Working Group on Financial Markets (Nov. 14, 2008).

\23\ Federal Reserve Bank of New York Staff Report No. 424:

``Policy Perspectives on OTC Derivatives Market Infrastructure,''

Jan. 2010 (revised Mar. 2010).

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The value of portfolio compression also is illustrated by existing

market participation in compression exercises.

[[Page 81526]]

In March 2010, the Depository Trust and Clearing Corporation (DTCC)

explicitly attributed the reduction in the gross notional value of the

contracts in its warehouse to industry supported portfolio

compression.\24\ TriOptima, which offers the TriReduce portfolio

compression service, estimates that it has terminated $106.3 trillion

gross notional of interest rate swaps and $66.9 trillion gross notional

of credit swaps since its inception in 2003.\25\ Similarly, Creditex

and Markit, which offer portfolio compression exercises in single name

credit default swaps, have enabled participating institutions to

eliminate $4.5 trillion in notional between late 2008 through 2009.\26\

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\24\ DTCC Press Release, ``DTCC Trade Information Warehouse

Completes Record Year Processing OTC Credit Derivatives'' (Mar. 11,

2010). Notably, beginning in August 2008, ISDA encouraged

compression exercises for credit default swaps by selecting the

service provider and defining the terms of service.

\25\ See http://www.trioptima.com. Between 2007 and 2008,

TriOptima reduced $54.7 trillion gross notional of interest rate

swaps and $49.1 trillion gross notional of credit swaps. In March of

2010, the staff of the Federal Reserve Bank of New York estimated

that since 2008 nearly $50 trillion gross notional of credit default

swap positions has been eliminated through portfolio compression.

Federal Reserve Bank of New York Staff Report No. 424: ``Policy

Perspectives on OTC Derivatives Market Infrastructure,'' Jan. 2010

(revised Mar. 2010).

\26\ See http://www.isdacdsmarketplace.com.

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2. Proposed Compression Rule

Based upon these considerations, the Commission is proposing Sec.

23.503, which would impose certain portfolio compression requirements

upon swap dealers and major swap participants. Specifically, swap

dealers and major swap participants would be required to participate in

multilateral compression exercises that are offered by those DCOs or

self-regulatory organizations of which the swap dealer or major swap

participant is a member. The Commission would encourage swap dealers

and major swap participants to work with the DCOs and self-regulatory

organizations of which they are members to develop portfolio

compression opportunities.

The portfolio compression obligation would be limited to swaps in

which the counterparty is also a swap dealer or major swap participant

and swaps that are eligible for inclusion in the exercise, as

determined by those conducting the compression exercise and agreed to

by those participating in the exercise. A swap dealer or major swap

participant would be permitted to exclude swaps from a compression

exercise if including the swap would be reasonably likely to increase

significantly the risk exposure of the swap dealer or major swap

participant. A swap dealer or major swap participant also would be

permitted to establish counterparty, market, cash payment, and other

risk tolerances and to exclude potential counterparties from the

compression exercise, provided that the swap dealer or major swap

participant is not using the risk tolerances or counterparty exclusions

to evade the compression requirements.

In recognition that portfolio compression currently is not

available for all asset classes and all transactions within an asset

class,\27\ the Commission also is proposing that swap dealers and major

swap participants be required to terminate bilaterally all fully

offsetting swaps between them by the close of business on the business

day following the day the parties entered into the offsetting swap

transaction and to engage annually in bilateral portfolio compression

exercises with counterparties that are also swap dealers or major swap

participants. Swap dealers and major swap participants need not engage

in bilateral portfolio compression exercises, however, to the extent

that the counterparties have mutually participated in a multilateral

exercise involving the swaps between them during the same year.

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\27\ At the present time, the principal portfolio compression

vendors offer compression exercises for limited types of trades in a

limited number of asset classes. Compression currently is available

for certain interest rate swaps and credit default swaps and, to a

lesser degree, specific energy products. For example, TriOptima's

TriReduce service provides portfolio compression services for: (1)

Interest rate swap transactions in twenty-three currencies; (2)

credit default swaps (index, single name, and tranches); and (3) a

more limited number of energy products. Markit and Creditex offer

portfolio compression for credit default swaps.

---------------------------------------------------------------------------

The Commission anticipates that portfolio compression exercises

will be offered by additional vendors and will encompass additional

products and asset classes as the industry progresses toward increased

product standardization and centralized clearing. To afford the

Commission the flexibility to react to the expected future availability

and need for portfolio compression exercises, proposed Sec. 23.503

also would require swap dealers and major swap participants to

participate in all multilateral portfolio compression exercises

required by Commission regulation or order.

Proposed Sec. 23.503 would not mandate portfolio compression

exercises for swaps outstanding between a swap dealer or a major swap

participant and counterparties that are neither swap dealers nor major

swap participants. Instead, swap dealers and major swap participants

would be required to maintain written policies and procedures for

periodically terminating all fully offsetting swaps and periodically

engaging in compression exercises.

The proposed rule would apply to all swaps within a swap portfolio

as of the effective date of the regulation.

3. Comments Requested

The Commission is requesting comment on all aspects of the

portfolio compression rule, and specifically requests comment on the

following questions:

Should the Commission require swap dealers and major swap

participants to engage in bilateral and multilateral compression

exercises, particularly with respect to transactions where the

counterparty is not a swap dealer or major swap participant?

Should the compression requirement be restricted to

particular asset classes?

With what frequency should bilateral or multilateral

compression be required?

What are the costs associated with engaging in bilateral

and multilateral compression and are such costs a barrier to

participation?

Should the Commission expressly define the transactions

that are eligible for inclusion in a portfolio compression exercise or

leave that determination to those conducting the compression exercise

and/or to those participating in the exercise?

What factors (e.g., sufficiently standardized terms) would

render a particular swap eligible or ineligible for inclusion in a

bilateral or multilateral compression exercise?

Should the Commission provide specific risk management,

accounting, regulatory, and other rationale under which a swap dealer

or major swap participant may exclude particular swaps transactions

from a multilateral portfolio compression exercise?

How much time would be sufficient to allow swap dealers

and major swap participants to come into compliance with the proposed

portfolio compression requirements?

Should the Commission require participation in compression

exercises conducted only by registered derivatives clearing

organizations or by all central counterparties of which the swap dealer

or major swap participant may be a member?

Should financial entities as defined in proposed Sec.

23.500 be subject to the provisions of Sec. 23.503(a), (b), and (c)?

[[Page 81527]]

III. Related Matters

A. Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA) requires that agencies

consider whether the rules they propose will have a significant

economic impact on a substantial number of small entities.\28\ The

Commission previously has established certain definitions of ``small

entities'' to be used in evaluating the impact of its regulations on

small entities in accordance with the RFA.\29\ The proposed rules would

affect swap dealers and major swap participants.

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\28\ 5 U.S.C. 601 et seq.

\29\ 47 FR 18618, Apr. 30, 1982.

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Swap dealers and major swap participants are new categories of

registrants. Accordingly, the Commission has not previously addressed

the question of whether such persons are, in fact, small entities for

purposes of the RFA. However, the Commission previously has determined

that futures commission merchants should not be considered to be small

entities for purposes of the RFA.\30\ The Commission's determination

was based, in part, upon the obligation of futures commission merchants

to meet the minimum financial requirements established by the

Commission to enhance the protection of customers' segregated funds and

protect the financial condition of futures commission merchants

generally.\31\ Like futures commission merchants, swap dealers will be

subject to minimum capital and margin requirements and are expected to

comprise the largest global financial firms. The Commission is required

to exempt from swap dealer designation any entities that engage in a de

minimis level of swaps dealing in connection with transactions with or

on behalf of customers. The Commission anticipates that this exemption

would tend to exclude small entities from registration. Accordingly,

for purposes of the RFA for this rulemaking, the Commission is hereby

proposing that swap dealers not be considered ``small entities'' for

essentially the same reasons that futures commission merchants have

previously been determined not to be small entities and in light of the

exemption from the definition of swap dealer for those engaging in a de

minimis level of swap dealing.

---------------------------------------------------------------------------

\30\ Id. at 18619.

\31\ Id.

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The Commission also has previously determined that large traders

are not ``small entities'' for RFA purposes.\32\ In that determination,

the Commission considered that a large trading position was indicative

of the size of the business. Major swap participants, by statutory

definition, maintain substantial positions in swaps or maintain

outstanding swap positions that create substantial counterparty

exposure that could have serious adverse effects on the financial

stability of the United States banking system or financial markets.

Accordingly, for purposes of the RFA for this rulemaking, the

Commission is hereby proposing that major swap participants not be

considered ``small entities'' for essentially the same reasons that

large traders have previously been determined not to be small entities.

---------------------------------------------------------------------------

\32\ Id. at 18620.

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Moreover, the Commission is carrying out Congressional mandates by

proposing this regulation. Specifically, the Commission is proposing

these regulations to comply with the Dodd-Frank Act, the aim of which

is to reduce systemic risk presented by swap dealers and swap market

participants through comprehensive regulation. The Commission does not

believe that there are regulatory alternatives to those being proposed

that would be consistent with the statutory mandate. Accordingly, the

Chairman, on behalf of the Commission, hereby certifies pursuant to 5

U.S.C. 605(b) that the proposed rules will not have a significant

economic impact on a substantial number of small entities.

B. Paperwork Reduction Act

The Paperwork Reduction Act (PRA) \33\ imposes certain requirements

on Federal agencies (including the Commission) in connection with their

conducting or sponsoring any collection of information as defined by

the PRA. This proposed rulemaking would result in new collection of

information requirements within the meaning of the PRA. The Commission

therefore is submitting this proposal to the Office of Management and

Budget (OMB) for review in accordance with 44 U.S.C. 3507(d) and 5 CFR

1320.11. The title for this collection of information is

``Confirmation, Portfolio Reconciliation, and Portfolio Compression

Requirements for Swap Dealers and Major Swap Participants.'' An agency

may not conduct or sponsor, and a person is not required to respond to,

a collection of information unless it displays a currently valid

control number. The OMB has not yet assigned this collection a control

number.

---------------------------------------------------------------------------

\33\ 44 U.S.C. 3501 et seq.

---------------------------------------------------------------------------

The collection of information under these proposed rules is

necessary to implement certain provisions of the CEA, as amended by the

Dodd-Frank Act. Specifically, it is essential to ensuring that swap

dealers and major swap participants document the terms of all of their

swaps, reconcile their swap portfolios to resolve any discrepancies or

disputes, and wholly or partially terminate some or all outstanding

swaps through regular compression exercises. Commission staff would use

the information related to each of these important risk-reducing

activities when conducting the Commission's examination and oversight

program with respect to the registrants.

If the proposed regulations are adopted, responses to this

collection of information would be mandatory. The Commission will

protect proprietary information according to the Freedom of Information

Act and 17 CFR part 145, ``Commission Records and Information.'' In

addition, section 8(a)(1) of the CEA strictly prohibits the Commission,

unless specifically authorized by the CEA, from making public ``data

and information that would separately disclose the business

transactions or market positions of any person and trade secrets or

names of customers.'' The Commission also is required to protect

certain information contained in a government system of records

according to the Privacy Act of 1974, 5 U.S.C. 552a.

1. Information Provided by Reporting Entities/Persons

Proposed Sec. Sec. 23.501, 23.502, and 23.503 would require swap

dealers and major swap participants to make and retain records of

confirmations, portfolio reconciliations, and portfolio compression

exercises. The proposed regulations do not impose any reporting

requirements. The proposed regulations will be an important part of the

Commission's regulatory program for swap dealers and major swap

participants. The information required to be preserved would be used by

representatives of the Commission and any examining authority

responsible for reviewing the activities of the swap dealer or major

swap participant to ensure compliance with the CEA and applicable

Commission regulations.

The annual burden associated with these proposed regulations is

estimated to be 1,282.5 hours, at an annual cost of $1,282,250 for each

swap dealer and major swap participant. Burden means the total time,

effort or financial resources expended by persons to generate,

maintain, retain, disclose, or provide information to or for a Federal

agency. Specifically, the Commission anticipates that swap dealers and

major swap participants will spend an average of 40 hours per year

drafting and

[[Page 81528]]

updating the policies and procedures required by the proposed

regulations; 252 hours per year making and retaining the acknowledgment

and confirmation records required by proposed Sec. 23.501; 812 hours

per year making and retaining the portfolio reconciliation records

required by proposed Sec. 23.502; and 178.5 hours per year making and

retaining the bilateral offset and portfolio compression records

required by proposed Sec. 23.503.

It is not currently known how many swap dealers and major swap

participants will become subject to these rules, and this will not be

known to the Commission until the registration requirements for these

entities become effective after July 16, 2011, the date on which the

Dodd-Frank Act becomes effective. While the Commission believes there

will be approximately 200 swap dealers and 50 major swap participants,

it has taken a conservative approach, for PRA purposes, in estimating

that there will be a combined number of 300 swap dealers and major swap

participants who will be required to comply with the recordkeeping

requirements of the proposed rules. The Commission estimated the number

of affected entities based on industry data.

According to recent Bureau of Labor Statistics findings, the mean

hourly wage of an employee under occupation code 11-3031, ``Financial

Managers,'' (which includes operations managers) that is employed by

the ``Securities and Commodity Contracts Intermediation and Brokerage''

industry is $74.41.\34\ Because swap dealers and major swap

participants include large financial institutions whose operations

management employees' salaries may exceed the mean wage, the Commission

has estimated the cost burden of these proposed regulations based upon

an average salary of $100 per hour.

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\34\ http://www.bls.gov/oes/current/oes113031.htm.

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Accordingly, the estimated burden was calculated as follows:

Drafting and Updating Policies and Procedures. This hourly burden

arises from the time necessary to develop and periodically update the

policies and procedures required by the proposed regulations.

Number of registrants: 300.

Frequency of collection: Initial implementation, updating as

needed.

Estimated number of annual responses per registrant: 1.

Estimated aggregate number of annual responses: 300.

Estimated annual hour burden per registrant: 40 hours.

Estimated aggregate annual hour burden: 12,000 burden hours [300

registrants x 40 hours per registrant].

Acknowledgment and Confirmation Recordkeeping. This hourly burden

arises from the proposed requirement that swap dealers and major swap

participants make and maintain records of the date and time of

transmission to, or receipt from, a counterparty of an acknowledgment

or confirmation; the length of time between the acknowledgment and

confirmation of each swap; and the length of time between execution and

confirmation of each swap.

Number of registrants: 300.

Frequency of collection: daily.

Estimated number of annual responses per registrant: 252 [252

trading days].

Estimated aggregate number of annual responses: 75,600 [300

registrants x 252 trading days].

Estimated annual hour burden per registrant: 252 [252 trading days

x 1 hour per day].

Estimated aggregate annual hour burden: 75,600 burden hours [300 x

252 hours].

Portfolio Reconciliation Recordkeeping. This hourly burden arises

from the proposed requirement that swap dealers and major swap

participants make and maintain records of the portfolio reconciliation

exercises in which they engage. Registrants would be required to

reconcile portfolios with counterparties that are swap dealers and

major swap participants on a daily, weekly, or quarterly basis,

depending upon the size of the portfolio. They also would be required

to maintain policies and procedures for conducting portfolio

reconciliation with other counterparties with similar frequency.

Number of registrants: 300.

Frequency of collection: daily, weekly, or quarterly.

Estimated number of annual responses per registrant: 8,120.\35\

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\35\ Due to the absence of prior experience in regulating swap

dealers and major swap participants and with regulations similar to

the proposed rules, the actual, average number of counterparties

that a swap dealer or major swap participant is likely to have and

the average size of its portfolio with particular counterparties is

uncertain. The estimate of 5,600 portfolio reconciliation records is

based upon the assumption that each swap dealer and major swap

participant engages in swap transactions with approximately one

third (100) of the other swap dealers or major swap participants and

that 10% of such portfolios would require daily reconciliation; 20%

would require weekly reconciliation; and 70% would require quarterly

reconciliation. The estimate also is based upon the assumption that

a swap dealer or major swap participant has an average of 440 other

counterparties and that all of the portfolios with those

counterparties generally would be limited to quarterly

reconciliation. Consistent with other proposed rulemakings, the

Commission has estimated that each of the 14 major swap dealers has

an average 7,500 counterparties and the other 286 swap dealers and

major swap participants have an average of 200 counterparties per

year, for an average of 540 total counterparties per registrant. The

Commission estimates that 440 of those counterparties would not be

other swap dealers or major swap participants.

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Estimated aggregate number of annual responses: 2,436,000 [300

registrants x 8,120 responses].

Estimated annual hour burden per registrant: 812 hours [8,120 x .10

hours per response].

Estimated aggregate annual hour burden: 243,600 burden hours [300

registrants x 812 hours per registrant].

Portfolio Compression Recordkeeping. This hourly burden results

from the proposed requirement that swap dealers and major swap

participants make and maintain records of the bilateral offsets and

portfolio compression exercises in which they participate, including

the beginning and completion dates; the swaps that were included and

excluded; the applicable risk tolerance levels; and the results of the

particular exercise. The proposed regulations would require that each

swap dealer and major swap participant terminate fully offsetting

swaps; participate in certain multilateral compression exercises; and

participate in annual bilateral portfolio compression exercises with

each counterparty that is also a swap dealer or major swap participant

(except to the extent that the counterparties participate in

multilateral compression exercises for the same swaps). Swap dealers

and major swap participants also would be required to maintain policies

and procedures for periodically engaging in portfolio compression

exercises with other counterparties.

Number of registrants: 300.

Frequency of collection: As needed.

Estimated number of annual responses per registrant: 1,029 [24

multilateral compression records \36\] + [465 bilateral compression

exercise

[[Page 81529]]

records \37\] + [540 bilateral offset records \38\].

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\36\ This estimate assumes that swap dealers and major swap

participants would engage in multilateral compression exercises for

2 asset classes at an average rate of 12 multilateral compression

exercises per year (approximately 1 per month).

\37\ As with other approximations set forth in this proposal,

the estimate of 465 bilateral compression exercise records is based

upon the assumption that each swap dealer and major swap participant

engages in swap transactions with approximately one third (100) of

the other swap dealers or major swap participants. Because it is

anticipated that most swaps between swap dealers and major swap

participants would be eligible for multilateral portfolio

compression exercises, the Commission expects that a swap dealer or

major swap participant would need to engage in annual bilateral

compression with only one quarter of (25) such counterparties. The

estimate also is based upon the assumption that the average swap

dealer or major swap participant has an average of 440 non-swap

dealer or major swap participant counterparties and would engage in

1 bilateral portfolio compression exercise with each. This would

result in a total of 465 bilateral portfolio compression records (25

+ 440).

\38\ This estimate is based upon the assumption that each swap

dealer and major swap participant will have an average of 1 set of

swaps that is eligible for annual bilateral offset with each of its

estimated 540 counterparties per year.

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Estimated aggregate number of annual responses: 308,700 [300

registrants x 1,029 responses per year].

Estimated annual hour burden per registrant: 178.5 hours [24

multilateral compression records x .5 hours per records] + [465

bilateral compression exercise records x .3 hours per records] + [540

bilateral offset records x .05 hours per record].

Estimated aggregate annual hour burden: 53,550 burden hours [300

registrants x 178.5 hours per registrant].

Based upon the above, the aggregate hourly burden for all

registrants is 334,350 hours and $33,435,000 [334,350 x $100 per hour].

In addition to the per hour burden discussed above, the Commission

anticipates that swap dealers and major swap participants may incur

minimal start-up costs in connection with the proposed recordkeeping

obligations. Such costs would include the expenditures related to

developing and installing new recordkeeping technology or re-

programming or updating existing recordkeeping technology and systems

to enable the swap dealer or major swap participant to collect,

maintain, and re-produce any newly required records. The Commission

believes that swap dealers and major swap participants generally could

adapt their current infrastructure to accommodate the new or amended

technology and thus, no significant infrastructure expenditures would

be needed. The Commission estimates the programming burden hours

associated with technology improvements to be 40 hours.

According to recent Bureau of Labor Statistics findings, the mean

hourly wages of computer programmers under occupation code 15-1021 and

computer software engineers under program codes 15-1031 and 1032 are

between $34.10 and $44.94.\39\ Because swap dealers and major swap

participants generally will be large entities that may engage employees

with wages above the mean, the Commission has conservatively chosen to

use a mean hourly programming wage of $60 per hour. Accordingly, the

start-up burden associated with the required technological improvements

would be $2,400 [$60 x 40 hour per affected registrant] or $720,000 in

the aggregate.

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\39\ http://www.bls.gov/oes/current/oes113031.htm.

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2. Information Collection Comments

The Commission invites the public and other Federal agencies to

comment on any aspect of the recordkeeping burdens discussed above. The

Commission specifically requests comment on the variables used in the

above-referenced hourly burden calculations. For example, the

Commission requests comment on the following:

What is the total number of swap dealers and major swap

participants in the marketplace?

What is the average number of counterparties that a swap

dealer or major swap participant is likely to have?

What percentage of those counterparties are other swap

dealers or major swap participants?

What is the average size (number of swaps) of a portfolio

that a swap dealer or major swap participant is likely to have with a

particular type of counterparty?

What is the average number of acknowledgment and

confirmation records that a swap dealer or major swap participant would

likely be required to make under the proposed regulations?

Pursuant to 44 U.S.C. 3506(c)(2)(B), the Commission solicits

comments in order to: (i) Evaluate whether the proposed collection of

information is necessary for the proper performance of the functions of

the Commission, including whether the information will have practical

utility; (ii) evaluate the accuracy of the Commission's estimate of the

burden of the proposed collection of information; (iii) determine

whether there are ways to enhance the quality, utility, and clarity of

the information to be collected; and (iv) minimize the burden of the

collection of information on those who are to respond, including

through the use of automated collection techniques or other forms of

information technology.

Comments may be submitted directly to the Office of Information and

Regulatory Affairs, by fax at (202) 395-6566 or by e-mail at

[email protected]. Please provide the Commission with a copy

of submitted comments so that all comments can be summarized and

addressed in the final rule preamble. Refer to the Addresses section of

this notice of proposed rulemaking for comment submission instructions

to the Commission.

A copy of the supporting statements for the collections of

information discussed above may be obtained by visiting RegInfo.gov.

OMB is required to make a decision concerning the collection of

information between 30 and 60 days after publication of this document

in the Federal Register. Therefore, a comment is best assured of having

its full effect if OMB receives it within 30 days of publication.

C. Cost-Benefit Analysis

Section 15(a) of the CEA\40\ requires the Commission to consider

the costs and benefits of its actions before issuing a rulemaking under

the CEA. By its terms, Section 15(a) does not require the Commission to

quantify the costs and benefits of a new regulation or to determine

whether the benefits of the rule outweigh its costs; rather, it

requires that the Commission ``consider'' the costs and benefits of its

actions.

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\40\ 7 U.S.C. 19(a).

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Section 15(a) further specifies that costs and benefits of a

proposed rulemaking shall be evaluated in light of five broad areas of

market and public concern: (1) Protection of market participants and

the public; (2) efficiency, competitiveness, and financial integrity of

futures markets; (3) price discovery; (4) sound risk management

practices; and (5) other public interest considerations. The Commission

may, in its discretion, give greater weight to any one of the five

enumerated considerations and could, in its discretion, determine that,

notwithstanding its costs, a particular regulation was necessary or

appropriate to protect the public interest or to effectuate any of the

provisions or to accomplish any of the purposes of the CEA.

Summary of proposed requirements. The proposed regulations would

implement new section 4s(i) of the CEA which was added by section 731

of the Dodd-Frank Act. The proposed regulations would set forth certain

requirements for swap confirmations, portfolio reconciliation, and

portfolio compression applicable to swap dealers

[[Page 81530]]

and major swap participants and related recordkeeping requirements.

Costs. With respect to costs, the Commission has determined that

the nominal cost that would be borne by swap dealers and major swap

participants to institute the policies and procedures and recordkeeping

systems necessary to satisfy the new regulatory requirements are far

outweighed by the benefits that would accrue to the financial system as

a whole as a result of the implementation of the rules. It is expected

that any additional cost imposed by the confirmation, portfolio

reconciliation, and portfolio compression requirements of proposed

Sec. Sec. 23.501, 23.502, and 23.503 would be minimal because the

confirmation, reconciliation, and compression processes required under

the rules are already part of a prudent operational processing regime

that many, if not most, swap dealers and major swap participants

already undertake as part of their ordinary course of business.

Moreover, most swap dealers and major swap participants have

adequate resources and existing back office operational systems that

are capable of adjusting to the new regulatory framework without

material diversion of resources away from commercial operations. As

discussed in the preamble, there are also numerous third-party vendors

that provide confirmation, compression, and reconciliation services.

Some of these providers charge fees based on results achieved (such as

number of swaps compressed) and, thus, the cost would be necessarily

proportionate to the benefit.

Benefits. With respect to benefits, the Commission has determined

that the proposed regulations would require a swap dealer or major swap

participant to confirm, reconcile, and compress their swaps in a manner

that will result in reduced risk, increased transparency, and greater

market integrity in the swaps market. The proposed swap confirmation,

portfolio reconciliation, and portfolio compression rules would further

the goal of avoiding market disruptions and financial losses to market

participants and the general public. Among other benefits, the proposed

rules would promote levels of operational scalability and resilience

that are most evident in periods of sustained high volume and market

volatility. Therefore, the Commission believes it is prudent to

prescribe these proposed regulations.

Public Comment. The Commission invites public comment on its cost-

benefit considerations. Commentators are also invited to submit any

data or other information that they may have quantifying or qualifying

the costs and benefits of the proposed rules with their comment

letters.

List of Subjects in 17 CFR Part 23

Antitrust, Commodity futures, Conduct standards, Conflict of

Interests, Major swap participants, Reporting and recordkeeping, Swap

dealers, Swaps.

For the reasons stated in this release, the Commission proposes to

amend 17 CFR part 23, as proposed to be added in FR Doc. 2010-XXXX,

published on XXXX (75 FR XXXX), as follows:

PART 23--SWAP DEALERS AND MAJOR SWAP PARTICIPANTS

1. The authority citation for part 23 to read as follows:

Authority: 7 U.S.C. 1a, 2, 6, 6a, 6b, 6b-1, 6c, 6p, 6r, 6s, 6t,

9, 9a, 12, 12a, 13b, 13c, 16a, 18, 19, 21.

2. Subpart I, (consisting of Sec. Sec. 23.500, 23.501, 23.502, and

23.503) is added to read as follows:

Subpart I--Swap Documentation

Sec.

23.500 Definitions.

23.501 Swap confirmation.

23.502 Portfolio reconciliation.

23.503 Portfolio compression.

Subpart I--Swap Documentation

Sec. 23.500 Definitions.

For purposes of subpart I, the following terms shall be defined as

provided.

(a) Acknowledgment means a written or electronic record of all of

the terms of a swap signed and sent by one counterparty to the other.

(b) Bilateral portfolio compression exercise means an exercise in

which two swap counterparties wholly or partially terminate some or all

of the swaps outstanding between those counterparties and replace those

swaps with a smaller number of swaps whose combined notional value is

less than the combined notional value of the original swaps included in

the exercise.

(c) Confirmation means the consummation (electronically or

otherwise) of legally binding documentation (electronic or otherwise)

that memorializes the agreement of the counterparties to all of the

terms of a swap transaction. A confirmation must be in writing (whether

electronic or otherwise) and must legally supersede any previous

agreement (electronically or otherwise). A confirmation is created when

an acknowledgment is manually, electronically, or by some other legally

equivalent means, signed by the receiving counterparty.

(d) Execution means, with respect to a swap transaction, an

agreement by the counterparties (whether orally, in writing,

electronically, or otherwise) to the terms of the swap transaction that

legally binds the counterparties to such terms under applicable law.

(e) Financial entity has the meaning given to the term in section

2h(7)(C) of the Act and any Commission regulations promulgated

thereunder, provided that the term shall not include a swap dealer or

major swap participant.

(f) Fully offsetting swaps means swaps of equivalent terms where no

net cash flow would be owed to either counterparty after the offset of

payment obligations thereunder.

(g) Material terms means all terms of a swap required to be

reported in accordance with part 45 of this chapter.

(h) Multilateral portfolio compression exercise means an exercise

in which multiple swap counterparties wholly or partially terminate

some or all of the swaps outstanding among those counterparties and

replace the swaps with a smaller number of swaps whose combined

notional value is less than the combined notional value of the original

swaps included in the exercise. The replacement swaps may be with the

same or different counterparties.

(i) Portfolio reconciliation means any process by which the two

parties to one or more swaps:

(1) Exchange the terms of all swaps in the swap portfolio between

the counterparties;

(2) Exchange each counterparty's valuation of each swap in the swap

portfolio between the counterparties as of the close of business on the

immediately preceding business day; and

(3) Resolve any discrepancy in material terms and valuations.

(j) Processed electronically means to be entered into a swap dealer

or major swap participant's computerized processing systems to

facilitate clearance and settlement.

(k) Prudential regulator has the meaning given to the term in

section 1a(39) of the Commodity Exchange Act and includes the Board of

Governors of the Federal Reserve System, the Office of the Comptroller

of the Currency, the Federal Deposit Insurance Corporation, the Farm

Credit Association, and the Federal Housing Finance Agency, as

applicable to the swap dealer or major swap participant. The term also

includes the Federal Deposit Insurance Corporation, with respect to any

financial company as defined in section 201 of the Dodd-Frank Wall

Street Reform and Consumer Protection Act or any insured depository

institution

[[Page 81531]]

under the Federal Deposit Insurance Act, and with respect to each

affiliate of any such company or institution.

(l) Swap portfolio means all swaps currently in effect between a

particular swap dealer or major swap participant and a particular

counterparty.

(m) Swap transaction means any event that results in a new swap or

in a change to the terms of a swap, including execution, termination,

assignment, novation, exchange, transfer, amendment, conveyance, or

extinguishing of rights or obligations of a swap.

(n) Unwind proposal means a proposal offered by the sponsor of a

multilateral portfolio compression exercise which, if accepted, would

wholly or partially terminate some or all of the original swaps

included in the exercise.

(o) Valuation means the current market value or net present value

of a swap.

Sec. 23.501 Swap confirmation.

(a) Confirmation.

(1) Each swap dealer and major swap participant entering into a

swap transaction with a counterparty that is a swap dealer or major

swap participant shall execute a confirmation for the swap transaction

according to the following schedule:

(i) For any swap transaction that has been executed and processed

electronically, within 15 minutes of execution;

(ii) For any swap transaction that is not executed electronically,

but that will be processed electronically, within 30 minutes of

execution; or

(iii) For any swap transaction that cannot be processed

electronically by the swap dealer or major swap participant, within the

same calendar day as execution.

(2) Each swap dealer and major swap participant entering into a

swap transaction with a counterparty that is not a swap dealer or a

major swap participant shall send an acknowledgment of such swap

transaction according to the following schedule:

(i) For any swap transaction that has been executed and processed

electronically, within 15 minutes of execution;

(ii) For any swap transaction that is not executed electronically,

but that will be processed electronically, within 30 minutes of

execution; or

(iii) For any swap transaction that cannot be processed

electronically by the swap dealer or major swap participant, within the

same calendar day as execution.

(3) Each swap dealer and major swap participant shall establish,

maintain, and enforce written policies and procedures reasonably

designed to ensure that it executes a confirmation for each swap

transaction that it enters into with a counterparty that is a financial

entity within the same calendar day as execution and with a

counterparty that is not a swap dealer, major swap participant, or a

financial entity not later than the next business day after execution.

Such procedures shall include a requirement that, prior to execution of

any such swap, the swap dealer or major swap participant furnish to a

prospective counterparty, or receive from a prospective counterparty, a

draft acknowledgment specifying all terms of the swap transaction other

than the applicable pricing and other relevant terms that are to be

expressly agreed at execution.

(b) Recordkeeping. (1) Each swap dealer and major swap participant

shall make and retain a record of:

(i) The date and time of transmission to, or receipt from, a

counterparty of any acknowledgment;

(ii) The date and time of transmission to, or receipt from, a

counterparty of any confirmation;

(iii) The length of time between acknowledgment and confirmation of

each swap; and

(iv) The length of time between execution and confirmation of each

swap.

(2) All records required to be maintained pursuant to this section

shall be maintained in accordance with Sec. 1.31 and shall be made

available promptly upon request to any representative of the Commission

or any applicable prudential regulator, or with regard to swaps defined

in section 1a(47)(A)(v), to any representative of the Commission, the

Securities and Exchange Commission, or any applicable prudential

regulator.

Sec. 23.502 Portfolio reconciliation.

(a) Swaps with swap dealers or major swap participants. Each swap

dealer and major swap participant shall engage in portfolio

reconciliation as follows for all swaps in which its counterparty is

also a swap dealer or major swap participant.

(1) Each swap dealer or major swap participant shall agree in

writing with each of its counterparties on the terms of the portfolio

reconciliation.

(2) The portfolio reconciliation may be performed on a bilateral

basis by the counterparties or by a qualified third party.

(3) The portfolio reconciliation shall be performed no less

frequently than:

(i) Once each business day for each swap portfolio that includes

300 or more swaps;

(ii) Once each week for each swap portfolio that includes more than

50 but fewer than 300 swaps on any business day during any week; and

(iii) Once each calendar quarter for each swap portfolio that

includes no more than 50 swaps at any time during the calendar quarter.

(4) Each swap dealer and major swap participant shall resolve

immediately any discrepancy in a material term of a swap identified as

part of a portfolio reconciliation.

(5) Each swap dealer and major swap participant shall resolve any

discrepancy in a valuation identified as part of a portfolio

reconciliation within one business day. A difference between the lower

valuation and the higher valuation of less than 10% of the higher

valuation need not be deemed a discrepancy.

(b) Swaps with entities other than swap dealers or major swap

participants. Each swap dealer and major swap participant shall

establish, maintain, and enforce written policies and procedures for

engaging in portfolio reconciliation as follows for all swaps in which

its counterparty is neither a swap dealer nor a major swap participant.

(1) Each swap dealer or major swap participant shall agree in

writing with each of its counterparties on the terms of the portfolio

reconciliation.

(2) The portfolio reconciliation may be performed on a bilateral

basis by the counterparties or by a qualified third party.

(3) The portfolio reconciliation shall be performed no less

frequently than:

(i) Once each business day for each swap portfolio that includes

500 or more swaps;

(ii) Once each week for each swap portfolio that includes more than

100 but fewer than 500 swaps on any business day during any week; and

(iii) Once each calendar quarter for each swap portfolio that

includes no more than 100 swaps at any time during the calendar

quarter.

(4) Each swap dealer or major swap participant shall establish,

maintain, and enforce written procedures reasonably designed to resolve

any discrepancies in the material terms or valuation of each swap

identified as part of a portfolio reconciliation process in a timely

fashion. A difference between the lower valuation and the higher

valuation of less than 10% of the higher valuation need not be deemed a

discrepancy.

(c) Reconciliation of cleared swaps. Nothing in this section shall

apply to a

[[Page 81532]]

swap that is cleared by a derivatives clearing organization.

(d) Recordkeeping. A record of each swap portfolio reconciliation,

including a record of each discrepancy and the length of time for

resolution of each discrepancy not resolved within one business day,

shall be maintained in accordance with Sec. 1.31 and shall be made

available promptly upon request to any representative of the Commission

or any applicable prudential regulator, or with regard to swaps defined

in section 1a(47)(A)(v) of the Act, to any representative of the

Commission, the Securities and Exchange Commission, or any applicable

prudential regulator.

Sec. 23.503 Portfolio compression.

(a) Bilateral offset. Each fully offsetting swap between a swap

dealer or major swap participant and another swap dealer or major swap

participant shall be terminated no later than the close of business on

the business day following the day on which the counterparties entered

into the fully offsetting swap.

(b) Bilateral compression. Each swap dealer and major swap

participant shall engage in a bilateral portfolio compression exercise

for each swap in which the counterparty is also a swap dealer or major

swap participant at least once per calendar year, except to the extent

that the swap dealer or major swap participant and the counterparty

have participated in a multilateral compression exercise involving such

swap during the same calendar year.

(c) Multilateral compression. Each swap dealer and major swap

participant shall engage in the following portfolio compression

exercises for each swap in which its counterparty is also a swap dealer

or major swap participant:

(1) Each swap dealer and major swap participant shall participate

in all multilateral portfolio compression exercises required by

Commission regulation or order.

(2) Each swap dealer and major swap participant shall participate

in all multilateral portfolio compression exercises that are initiated,

offered, or sponsored by any of the following entities to the extent

that any swap in the portfolio of the swap dealer or major swap

participant is eligible for inclusion in the exercise:

(i) Any derivatives clearing organization of which the swap dealer

or major swap participant is a member; or

(ii) Any self-regulatory organization of which the swap dealer or

major swap participant is a member.

(3) Each swap dealer and major swap participant shall comply with

the following with respect to each multilateral portfolio compression

exercise in which it participates:

(i) Transactions included. Each swap dealer and major swap

participant shall include in the multilateral portfolio compression

exercise all swaps in which its counterparty is also a swap dealer or

major swap participant that are eligible to be included in the

particular exercise, unless including the swap would be reasonably

likely to significantly increase the risk exposure of the swap dealer

or major swap participant.

(ii) Counterparty, market, and cash payment risk tolerances.

Notwithstanding Sec. 23.503(c)(3)(i), a swap dealer or a major swap

participant may establish counterparty, market, cash payment, or other

risk tolerances or exclude specific potential counterparties, provided

that the swap dealer or major swap participant does not use such risk

tolerances or counterparty exclusions to evade the requirements of this

regulation.

(iii) Acceptance of unwind proposal. No swap dealer or major swap

participant shall unreasonably withhold, delay, or condition consent to

an unwind proposal.

(d) Policies and procedures.

(1) Each swap dealer and major swap participant shall establish,

maintain, and enforce written policies and procedures for engaging in

the bilateral and multilateral portfolio compression exercises required

by this section with respect to all swaps in which its counterparty is

also a swap dealer or major swap participant.

(2) Each swap dealer and major swap participant shall establish,

maintain, and enforce written policies and procedures for periodically

terminating fully offsetting swaps and for periodically engaging in

portfolio compression exercises with respect to swaps in which its

counterparty is an entity other than a swap dealer or major swap

participant, to the extent that the outstanding swaps are able to be

terminated through a portfolio compression exercise.

(e) Recordkeeping. (1) Each swap dealer and major swap participant

shall make and maintain a record of each bilateral offset and each

bilateral or multilateral portfolio compression exercise in which it

participates, including the beginning and completion dates of the

offset or exercise; the included swaps and counterparties thereto; the

swaps that were eligible for inclusion in the exercise, but were

excluded by the swap dealer or major swap participant and the reason

for the exclusion; the counterparty, market, cash payment, or other

risk tolerance levels set by the swap dealer or major swap participant;

and the results of the compression, including the identification of the

swaps that were terminated and any new swaps and the counterparties

thereto that resulted from the exercise.

(2) All records required to be maintained pursuant to this section

shall be maintained in accordance with Sec. 1.31 and shall be made

available promptly upon request to any representative of the Commission

or any applicable prudential regulator, or with regard to swaps defined

in section 1a(47)(A)(v) of the Act, to any representative of the

Commission, the Securities and Exchange Commission, or any applicable

prudential regulator.

Issued in Washington, DC on December 16, 2010, by the

Commission.

David A. Stawick,

Secretary of the Commission.

Appendices to Confirmation, Portfolio Reconciliation, and Portfolio

Compression Requirements for Swap Dealers and Major Swap Participants--

Commissioners Voting Summary and Statements of Commissioners

Note: The following appendices will not appear in the Code of

Federal Regulations.

Appendix 1--Commissioners Voting Summary

On this matter, Chairman Gensler and Commissioners Dunn,

Sommers, Chilton and O'Malia voted in the affirmative. No

Commissioner voted in the negative.

Appendix 2--Statement of Chairman Gary Gensler

I support the proposed rulemaking that establishes essential

business conduct standards for swap dealers and major swap

participants. Today's rule establishes confirmation, portfolio

reconciliation and portfolio compression requirements for such

parties. The proposed regulations are consistent with Congress's

direction through the Dodd-Frank Act to prescribe standards for the

timely and accurate confirmation, processing, netting and valuation

of swap transactions. One of the primary goals of Dodd-Frank Act was

to establish a comprehensive regulatory framework that would reduce

risk, increase transparency and promote market integrity. The

proposed regulations accomplish this goal by establishing procedures

that will promote legal certainty regarding swap transactions, early

resolutions of valuation disputes, enhanced understanding of one

counterparty's risk exposure to another, reduced operational risk

and increased operational efficiency.

[FR Doc. 2010-32264 Filed 12-27-10; 8:45 am]

BILLING CODE 6351-01-P

Last Updated: December 28, 2010