2010-29994

FR Doc 2010-29994[Federal Register: December 7, 2010 (Volume 75, Number 234)]

[Proposed Rules]

[Page 76139-76183]

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

[DOCID:fr07de10-22]

[[Page 76139]]

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Part III

Commodity Futures Trading Commission

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17 CFR Part 43

Real-Time Public Reporting of Swap Transaction Data; Proposed Rule

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COMMODITY FUTURES TRADING COMMISSION

17 CFR Part 43

RIN 3038-AD08

Real-Time Public Reporting of Swap Transaction Data

AGENCY: Commodity Futures Trading Commission.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Commodity Futures Trading Commission (``Commission'') is

proposing rules to implement new statutory provisions enacted by Title

VII of the Dodd-Frank Wall Street Reform and Consumer Protection Act

(the ``Dodd-Frank Act''). Specifically, in accordance with Section 727

of the Dodd-Frank Act, the Commission is proposing rules to implement a

new framework for the real-time public reporting of swap transaction

and pricing data for all swap transactions. Additionally, the

Commission is proposing rules to address the appropriate minimum size

and time delay relating to block trades on swaps and large notional

swap transactions.

DATES: Comments must be received by February 7, 2011.

ADDRESSES: You may submit comments, identified by RIN number 3038-AD08,

by any of the following methods:

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

Follow the instructions for submitting comments.

Agency Internet Web site, via Its Comments Online Process:

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

comments through the Internet 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.

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

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

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

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

information that is 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

Commission Regulation Sec. 145.9.\1\

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\1\ 17 CFR 145.9.

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The Commission reserves the right, but shall not have the

obligation, to review, pre-screen, filter, redact, refuse, or remove

any or all of your submission from www.cftc.gov that it may deem to be

inappropriate for publication, such as obscene language. All

submissions that have been redacted or removed from the Commission's

Internet Web site, but 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, 5 U.S.C.

551 et seq., and other applicable laws, and may be accessible under the

Freedom of Information Act, 5 U.S.C. 552.

FOR FURTHER INFORMATION CONTACT: Thomas Leahy, Associate Director,

Division of Market Oversight, 202-418-5278, [email protected]; or Jeffrey

L. Steiner, Special Counsel, Division of Market Oversight, 202-418-

5482, [email protected]; Commodity Futures Trading Commission, Three

Lafayette Center, 1155 21st Street, NW., Washington, DC 20581.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background

II. Explanation of the Proposed Rules

A. Overview

1. Introduction

2. Parties Responsible for Reporting Swap Transaction and

Pricing Data to a Registered Entity

3. Parties Responsible for Publicly Disseminating Swap

Transaction and Pricing Data in Real-Time

4. Proposed Effective Date and Implementation Schedule

B. Section-by-Section Analysis

1. Proposed Section 43.1--Purpose, Scope and Rules of

Construction

2. Proposed Section 43.2--Definitions

3. Proposed Section 43.3--Method and Timing for Real-Time Public

Reporting

i. Responsibilities of the Reporting Party To Report Data

ii. Responsibilities of Swap Markets To Publicly Disseminate Swap

Transaction and Pricing Data in Real-Time

iii. Requirements for Registered SDRs

iv. Requirements for Third-Party Service Providers

v. Availability of Real-Time Swap Transaction and Pricing Data

vi. Errors or Omissions

vii. Hours of Operation

viii. Recordkeeping Requirements

ix. Fees Charged by Registered SDRs

x. Consolidated Public Dissemination of Swap Data

4. Proposed Section 43.4 and Appendix A to Proposed Part 43--

Swap Transaction and Pricing Data to be Publicly Disseminated in

Real-Time

i. Ensuring the Anonymity of the Parties to a Swap

ii. Unique Product Identifiers

iii. Price-Forming Continuation Data

iv. Reporting and Public Dissemination of Notional or Principal

Amount

v. Appendix A to Proposed Part 43

vi. Examples to Illustrate the Public Reporting of Real-Time Swap

Transaction and Pricing Data

5. Proposed Section 43.5--Block Trades and Large Notional Swaps

i. Parties to a Block Trade or Large Notional Swap

ii. Block Trades on Swaps

iii. Large Notional Swaps

iv. Time-Stamp and Reporting Requirements for Block Trades and Large

Notional Swaps

v. Responsibilities of Registered SDRs in Determining the

Appropriate Minimum Block Size

vi. Formula to Calculate the Appropriate Minimum Block Size

vii. Distribution Test

viii. Multiple Test

ix. Responsibilities of Swap Markets in Determining Minimum Block

Trade Sizes

x. Responsibilities of the Parties to a Swap in Determining the

Appropriate Minimum Large Notional Swap Size

xi. Time Delay in the Real-Time Public Reporting of Block Trades and

Large Notional Swaps

xii. Prohibition of Aggregation of Trades

III. Related Matters

A. Cost-Benefit Analysis

1. Introduction

2. Summary of Proposed Requirements

3. Costs

4. Benefits

B. Paperwork Reduction Act

1. Introduction

2. Information Provided by Reporting Entities/Persons

i. Reporting Requirement

ii. Public Dissemination Requirement

iii. Recordkeeping Requirement

iv. Determination of Appropriate Minimum Block Size

3. Information Collection Comments

C. Regulatory Flex Act

I. Background

On July 21, 2010, President Obama signed the Dodd-Frank Wall Street

Reform and Consumer Protection Act (``Dodd-Frank Act'').\2\ Title VII

of the Dodd-Frank Act \3\ amended the Commodity Exchange Act (``CEA'')

\4\ to establish a comprehensive, new regulatory framework for swaps

and security-based swaps.\5\ The legislation was enacted to reduce

risk, increase transparency and promote market integrity within the

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

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registration and comprehensive regulation of swap dealers and major

swap participants (``MSPs''); (2) imposing mandatory clearing and trade

execution requirements on standardized derivative products; (3)

creating robust recordkeeping and real-time reporting regimes; and (4)

enhancing the Commodity Futures Trading Commission's (``Commission'' or

``CFTC'') rulemaking and enforcement authorities with respect to, among

others, all registered entities and intermediaries subject to the

Commission's oversight.

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\2\ 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.

\3\ Pursuant to Section 701 of the Dodd-Frank Act, Title VII may

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

2010.''

\4\ 7 U.S.C. 1 et seq.

\5\ Rules governing the reporting and dissemination of security-

based swaps are the subject of a separate and forthcoming rulemaking

by the Securities and Exchange Commission (``SEC'').

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Accordingly, in order to ensure the proper implementation of the

new regulatory framework, Section 727 of the Dodd-Frank Act created

Section 2(a)(13) of the CEA, which requires the Commission to

promulgate rules that provide for the public availability of swap

transaction and pricing data in real-time in such form and at such

times as the Commission determines appropriate to enhance price

discovery.\6\ Under new Section 2(a)(13)(A) of the CEA, the definition

of ``real-time public reporting'' means reporting ``data relating to a

swap transaction, including price and volume, as soon as

technologically practicable after the time at which the swap

transaction has been executed.''

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\6\ Section 2(a)(13)(B) of the CEA states that ``[t]he purpose

of this section is to authorize the Commission to make swap

transaction and pricing data available to the public in such form

and at such times as the Commission determines appropriate to

enhance price discovery.''

It is notable that the CEA is silent as to the appropriate

method through which real-time public reporting must occur.

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Sections 2(a)(13)(C)(i) through (iv) of the CEA set out the four

types of swaps for which transaction and pricing data must be reported

to the public in real-time: (i) Swaps that are subject to the mandatory

clearing requirement \7\ (including those swaps that may qualify for a

non-financial end-user exception from the mandatory clearing

requirement); \8\ (ii) swaps that are not subject to the mandatory

clearing requirement but are cleared at a registered derivatives

clearing organization (``DCO''); (iii) swaps that are not cleared at a

registered DCO and which are reported to a registered swap data

repository (``SDR'') or to the Commission pursuant to Section 2(h)(6)

of the CEA; and (iv) swaps that are ``determined to be required to be

cleared'' under Section 2(h)(2) of the CEA but are not cleared. The

four categories described in Section 2(a)(13)(C) of the CEA cover all

swaps and, therefore, the real-time reporting requirements apply to all

swaps, including those swaps executed on a registered swap execution

facility (``SEF'') or a registered designated contract market (``DCM,''

together with a SEF, a ``swap market'') and those swaps executed

bilaterally between counterparties and not pursuant to the rules of a

SEF or DCM (``off-facility swaps'').\9\

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\7\ The mandatory clearing requirement is found in Section

2(h)(1) of the CEA, as added by Section 723(a)(3) of the Dodd-Frank

Act.

\8\ Section 2(h)(7) of the CEA provides the non-financial end-

user exception from the mandatory clearing requirement.

\9\ The legislative history of the Dodd-Frank Act also suggests

that the real-time reporting requirements of Section 2(a)(13) apply

to all swaps. Senate Agriculture Committee Chairwoman Blanche

Lincoln stated during Senate deliberations that ``[t]he major

components of the derivatives title include: 100 percent reporting

of swaps and security-based swaps, mandatory trading and clearing of

standardized swaps and security-based swaps and real-time price

reporting for all swap transactions--those subject to mandatory

trading and clearing as well as those subject to the end-user

clearing exemption and customized swaps.'' 156 Cong. Rec. S5,920

(daily ed. July 15, 2010) (statement of Sen. Blanche Lincoln).

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With regard to swaps described in Sections 2(a)(13)(C)(i) and (ii)

of the CEA, Section 2(a)(13)(E) of the CEA provides that the Commission

shall prescribe rules that: (i) Ensure such information does not

identify the participants; (ii) specify the criteria for determining

what constitutes a large notional swap transaction (block trade) for

particular markets and contracts; (iii) specify the appropriate time

delay for reporting large notional swap transactions (block trades) to

the public; and (iv) take into account whether public disclosure will

materially reduce market liquidity. CEA Section 2(a)(13)(E) does not

state explicitly that the proposed rules must contain similar

provisions for those swaps described in Sections 2(a)(13)(C)(iii) and

(iv). However, in applying its authority under Section 2(a)(13)(B) to

``make swap transaction and pricing data available to the public in

such form and at such times as the Commission determines appropriate to

enhance price discovery,'' the Commission is authorized to prescribe

similar rules to those provisions in Section 2(a)(13)(E) for off-

facility swap transactions described in Sections 2(a)(13)(C)(iii) and

(iv).\10\

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\10\ In addition, the Commission is required by Section

2(a)(13)(C)(iii) of the CEA to prescribe real-time public reporting

requirements for off-facility swaps ``in a manner that does not

disclose the business transactions and market positions of any

person.''

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II. Explanation of the Proposed Rules

A. Overview

1. Introduction

The Commission proposes to create a new part 43 of its regulations,

implementing the provisions of Section 2(a)(13) of the CEA. The

proposed rules in part 43 set out: (1) The entities or persons that

shall be responsible for reporting swap transaction and pricing data;

(2) the entities or persons that shall be responsible for publicly

disseminating such data; (3) the data fields and guidance on the

appropriate order and format for data to be reported to the public in

real-time; (4) the appropriate minimum size and time delay for block

trades and large notional swaps; and (5) the proposed effective date

and implementation schedule for the proposed rules.

The proposed rules reflect consultation with staff of the

Securities and Exchange Commission (the ``SEC'') \11\ and staff of the

Board of Governors of the Federal Reserve.\12\ Staff from each of these

agencies has provided verbal and/or written comments and the proposed

rules incorporate elements of the comments provided. The proposed rules

have been further informed by (i) the joint roundtable conducted by

CFTC staff and staff of the SEC on September 14, 2010 (the

``Roundtable''); \13\ (ii) public comments posted on the Commission's

Internet Web site; \14\ and (iii) CFTC staff meetings with market

participants.\15\

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\11\ Section 763 of the Dodd-Frank Act authorizes the SEC to

promulgate rules ``to provide for the public availability of

security-based swap transaction, volume, and pricing data * * *.''

\12\ See Section 712(a)(1) of the Dodd-Frank Act requires staff

to consult with the SEC and other prudential regulators.

\13\ The transcript from the Roundtable (the ``Roundtable Tr.)

is available at: http://www.cftc.gov/idc/groups/public/@swaps/

documents/file/derivative18sub091410.pdf.

\14\ Such comments are available at: http://www.cftc.gov/

LawRegulation/DoddFrankAct/OTC_18_RealTimeReporting.html.

\15\ A list and description of such meetings is available at:

http://www.cftc.gov/LawRegulation/DoddFrankAct/ExternalMeetings/

index.htm.

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The SEC is adopting rules related to the real-time reporting of

security based swaps as required under Section 763 of the Dodd-Frank

Act. Understanding that the Commission and the SEC regulate different

products and markets and, as such may be proposing alternative

regulatory requirements, the Commission requests comments on the impact

of any differences between the Commission's and the SEC's approach to

the regulation and reporting of swaps and security-based swaps and the

public dissemination of swap transaction and

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pricing data in real-time. In addition, the Commission requests

specific comment on the following issues:

Would the regulatory approach of the Commission in this

proposed rulemaking, pursuant to Section 727 of the Dodd-Frank Act, and

the SEC's proposed rulemaking, pursuant to Section 763 and 766 of the

Dodd-Frank Act, result in duplicative or inconsistent requirements on

the part of market participants to both regulatory regimes or result in

gaps between those regimes? If so, in what way should these

duplications, inconsistencies or gaps be minimized?

Do commenters believe that the proposed approaches by the

Commission and the SEC for the real-time reporting and public

dissemination of swap transaction and pricing data are comparable? If

not, why? Are there approaches that could make the real-time reporting

and public dissemination of swap transaction and pricing data more

comparable? If so, what?

Do commenters believe that it would be appropriate for the

Commission to adopt an approach proposed by the SEC that differs from

the Commission's proposal? If so, which one(s)? The Commission requests

that commenters provide data, to the extent possible, to support any

suggested approaches.

2. Parties Responsible for Reporting Swap Transaction and Pricing Data

to a Registered Entity

Section 2(a)(13)(F) of the CEA provides that the parties to a swap

(including agents of the parties to a swap) shall be responsible for

reporting swap transaction information to the appropriate registered

entity \16\ in a timely manner as may be prescribed by the

Commission.\17\ For off-facility swaps, the Commission's proposal

places the requirement to report the swap transaction and pricing data

in real-time to a registered entity (i.e., a registered SDR that

accepts and publicly disseminates real-time swap transaction and

pricing data in real-time) in a manner similar to that in which all

swap transaction information for uncleared swaps would be reported to a

registered SDR pursuant to Section 4r(a)(3) of the CEA.\18\ With

respect to swaps that are executed on a swap market, the Commission's

proposal provides that if the parties to a swap execute a transaction

on a swap market, then the transacting parties' reporting requirements

under Section 2(a)(13)(F) of the CEA are satisfied. The Commission

views the real-time swap transaction and pricing data that is sent to a

real-time disseminator and the swap information that is sent to a

registered SDR as two separate and distinct data streams.\19\

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\16\ Section 1a(40) of the CEA, as amended by Section 721(a) of

the Dodd-Frank Act, defines ``registered entity'' to include SEFs,

DCMs and SDRs, but does not include swap dealers and MSPs. Section

1a(40) also defines registered entity to include DCOs. The

Commission has determined not to apply this requirement to DCOs

because it believes that the value of timely public dissemination

outweighs the benefit of waiting until a swap is presented to a

clearing organization.

\17\ Sections 4s(f)(1)(A) and 4s(f)(2) of the CEA, provide the

Commission with broad authority to adopt rules governing the

reporting of all swap transaction information for swap dealers and

MSPs. Specifically, Section 4s(f)(1)(A) of the CEA provides that

``[e]ach registered swap dealer and major swap participant shall

make such reports as are required by the Commission by rule or

regulation regarding the transactions and positions and financial

condition of the registered swap dealer or major swap participant *

* *'' Section 4s(f)(2) of the CEA provides that ``[t]he Commission

shall adopt rules governing reporting and recordkeeping for swap

dealers and major swap participants.'' Additionally, Sections

4s(h)(1)(D) and 4s(h)(3)(D) of the CEA provide the Commission with

rulemaking authority to establish business conduct standards and

requirements relating to the real-time reporting requirements on

swap dealers and major swap participants.

\18\ Section 4r(a)(3) of the CEA provides that for swaps in

which only one counterparty is a swap dealer or MSP, the swap dealer

or MSP is required to report the swap to a registered SDR. For swaps

in which only one counterparty is a swap dealer and the other is an

MSP, the swap dealer is required to report to a registered SDR. For

all other swaps, Section 4r(a)(3) provides that the counterparties

to the swap shall select a counterparty to report to a registered

SDR.

\19\ The real-time reporting requirements pursuant to Section

2(a)(13) of the CEA are separate and apart from the requirements to

report swap transaction information to a registered SDR. The

reporting requirements for all swap transaction information to an

SDR are found in Sections 2(a)(13)(G) and 4r(a)(1) of the CEA.

Specifically, Section 2(a)(13)(G) of the CEA provides that [e]ach

swap, (whether cleared or uncleared) shall be reported to a

registered swap data repository.'' In addition, Section 4r(a)(1)

provides that ``[e]ach swap that is not accepted for clearing by any

[DCO] shall be reported to [an SDR] described in section 21 [of the

CEA];'' or if no SDR exists, to the Commission.

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3. Parties Responsible for Publicly Disseminating Swap Transaction and

Pricing Data in Real-Time

Section 2(a)(13)(D) of the CEA authorizes the Commission to require

registered entities ``to publicly disseminate the swap transaction and

pricing data.'' With respect to all off-facility swaps, the

Commission's proposal requires that reporting parties send swap

transaction and pricing data to registered SDRs to publicly disseminate

such data in real-time. With respect to swaps that are executed on a

swap market, the Commission's proposal requires that swap markets

publicly disseminate swap transaction and pricing data either through a

registered SDR or a third-party service provider. Under the proposal,

if a swap market sends the swap transaction and pricing data to a

registered SDR, the swap market is responsible for ensuring that such

data is sent in a timely manner for public dissemination.

Alternatively, if a swap market sends the swap transaction and pricing

data to a third-party service provider for the public dissemination of

such data, the swap market does not absolve itself from or satisfy the

requirement to publicly disseminate swap transaction and pricing data

until such time as the third-party service provider actually

disseminates such data. Indeed, under the alternative, a swap market

must ensure that the third-party service provider publicly disseminates

the data in the manner set forth in the proposal.\20\

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\20\ In considering different schemes of real-time public

reporting requirements, the Commission also considered a ``first

touch'' method of reporting whereby the swap dealer, MSP or swap

market where a swap transaction occurred would have been required to

real-time report the transaction by posting the transaction on its

Internet Web site or through other electronic means. The Commission

chose not to pursue a ``first touch'' method because it would likely

lead to greater fragmentation of market data, increased search costs

for market participants and potential concerns with the quality of

the data that would be publicly disseminated.

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The Commission requests comment on all aspects of the proposed

rules, as well as comment on the specific provisions, issues and

questions highlighted in the discussion in Section B below.

4. Proposed Effective Date and Implementation Schedule

The Dodd-Frank Act requires the Commission to promulgate rules to

implement these provisions by July 15, 2011.\21\ Proposed part 43 is

designed to provide clarity as to the real-time reporting and public

dissemination requirements with respect to all swap transaction and

pricing data. The Commission acknowledges that the systems for

reporting and public dissemination described in proposed part 43 may

take a significant amount of time and resources to implement

effectively. While the Commission is fully committed to implementing

Congress' directive to require real-time public reporting of all swaps

and will adopt final rules by July 15, 2011, participants will need a

reasonable amount of time in which to acquire or configure the

necessary systems, engage

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and train the necessary staff and develop and implement the necessary

policies and procedures to implement the proposed rules. The

Commission's proposed rules provide that appropriate minimum block

sizes will be published by registered SDRs beginning in January

2012.\22\ Accordingly, it is anticipated that registered entities and

registrants will have begun their compliance by that time.

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\21\ See Section 754 of the Dodd-Frank Act which states:

``Unless otherwise provided in this title, the provisions of this

subtitle shall take effect on the later of 360 days after the date

of enactment of this subtitle or, to the extent a provision of this

subtitle requires a rulemaking, not less than 60 days after

publication of the final rule or regulation implementing such

provision of this subtitle.''

\22\ See discussion relating to proposed Sec. 43.5(g)(4) below.

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The Commission requests comment on what would be an appropriate

implementation schedule (i.e., effective date) for the final rules. In

addition, the Commission requests specific comment on the following

issues:

How do commenters believe that an appropriate

implementation schedule should be structured? Should there be a phased-

in approach? Please provide specific examples.

Do commenters believe that different types of reporting

parties (e.g., swap dealers, MSPs and end-users) should have different

implementation timeframes? If so, why and what timeframes? If not, why

and what timeframe?

Do commenters believe that different types of execution

(e.g., SEF, DCM and off-facility) should have different implementation

timeframes? If so, why and what timeframes? If not, why and what

timeframe?

How long would swap dealers, MSPs and end-users need to

establish the appropriate connections to report off-facility swaps to

registered SDRs? Please explain.

How long after registration would registered SDRs need to

accept and publicly disseminate swap transaction and pricing data in

real-time? Please explain.

Should there be different implementation timeframes for

particular asset classes, markets or contracts? If so, what criteria

should be used to select those asset classes, markets or contracts?

Should the implementation timeframes for real-time

reporting and public dissemination requirements for swaps and security-

based swaps be coordinated?

Should there be different implementation timeframes for

the block trade and large notional swap rules explained in the

discussion relating to proposed Sec. 43.5 below?

B. Section-by-Section Analysis

1. Proposed Section 43.1--Purpose, Scope and Rules of Construction

The proposed rules apply to all swaps as defined in Section 1a(47)

of the CEA and as may be further defined by Commission regulations. The

categories of swaps described in Section 2(a)(13)(C) of the CEA account

for all swaps, whether cleared or uncleared, and regardless of whether

a swap is executed on a SEF, DCM or off-facility. The proposed rules

apply real-time reporting requirements to SEFs, DCMs, SDRs and the

parties of a swap, including registered or exempt swap dealers,

registered or exempt MSPs and U.S.-based end-users.

The Commission requests comment generally on the scope of

transactions covered by this part. In addition, the Commission requests

specific comment on which parties to a swap should be covered by the

reporting requirements in this part in order to enhance price

discovery?

2. Proposed Section 43.2--Definitions

Proposed Sec. 43.2 contains definitions for, inter alia, the

following terms: ``Affirmation''; ``As Soon As Technologically

Practicable''; ``Asset Class''; ``Confirmation''; ``Execution'';

``Public Dissemination'' or ``Publicly Disseminate''; ``Real-Time

Disseminator''; ``Reportable Swap Transaction''; ``Swap Instrument'';

and ``Third-Party Service Provider''.

Affirmation

Proposed Sec. 43.2(b) defines ``affirmation'' as the process

(electronically, orally, in writing or otherwise) in which the parties

to a swap verify that they agree on the primary economic terms of a

swap, but not necessarily all terms of the swap. The affirmation of the

swap is only the agreement to the primary economic terms of the swap,

as distinguished from the confirmation of a swap in which all of the

terms of the swap are agreed to in writing to memorialize the agreement

of all parties to the swap. Such confirmation legally supersedes any

previous agreement of the parties.

Affirmation and execution can, but do not necessarily, occur at the

same time. In either case, affirmation and execution always occur prior

to the confirmation of a swap. One further distinction is that

``affirmation'', as defined in the proposed rules, differs from

``confirmation by affirmation''. Some confirmation service vendors

(e.g., Deriv/SERV, MarkitSERV) have used the term ``affirmation'' to

describe the process by which one party to a swap (usually an end-user)

electronically acknowledges its assent to complete swap terms submitted

to the vendor by its counterparty (usually a dealer). This process

allows for electronic confirmation even when one party to the swap does

not have the systems necessary to submit swap terms to the vendor

electronically. Upon such assent to complete swap terms, a swap is

legally confirmed (i.e., ``confirmation by affirmation''). Parties that

use a confirmation by affirmation process previously will have affirmed

the primary economic terms of the trade and therefore executed the

trade pursuant to the definitions in the proposed rules.

As Soon as Technologically Practicable

Section 2(a)(13)(A) of the CEA defines ``real-time public

reporting'' to mean ``to report data relating to a swap transaction,

including price and volume, as soon as technologically practicable

after the time at which the swap transaction has been executed.'' ``As

soon as technologically practicable'' and ``executed'' are not defined

in the Dodd-Frank Act.\23\

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\23\ The terms ``execution'' and ``executed'' are discussed

below.

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The proposed rules provide definitions for ``as soon as

technologically practicable'' and ``executed''. Proposed Sec. 43.2(d)

defines the term ``as soon as technologically practicable'' to mean as

soon as possible, taking into consideration the prevalence of

technology, implementation and use of technology by comparable market

participants. In defining ``as soon as technologically practicable'',

the Commission has considered that this term may have different

interpretations for different parties to a swap (i.e., swap dealers,

MSPs and end-users), for different types of swaps (e.g., energy swaps,

credit default swaps, interest rate swaps, etc.) and for different

methods of execution (i.e., SEFs, DCMs and off-facility). Staff

considered real-time reporting regimes that are currently in place,

comments by market participants at external meetings, the discussions

at the Roundtable and the potential costs to market participants, among

other things. Cost, access to the latest technology and other factors

may prevent some of the fastest, most efficient technology from being

available to all market participants. Because of these factors, the

Commission recognizes that what is ``technologically practicable'' for

one party to a swap may not be the same as what is ``technologically

practicable'' for another party to a swap.

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The Commission requests comment on whether the term should account

for other considerations not presently identified in the definition.

Asset Class

Proposed Sec. 43.2(e) defines the term ``asset class'' to mean the

broad category of goods, services or commodities underlying a swap. The

asset classes include, but are not limited to, the following five major

categories: interest rate, currency, credit, equity and other

commodity.\24\ In proposing these five major categories, the Commission

considered market statistics that distinguish between those general

types of underlying instruments, as well as market infrastructures that

have been established for these five types of instruments. The interest

rate asset class would encompass the underlying of any swap which is

primarily based on one or more reference rates, such as swaps of

payments determined by fixed and floating rates. The currency asset

class would encompass the underlying of any swap that is primarily

based on rates of exchange between different currencies, changes in

such rates or other aspects of such rates including any swap that is a

foreign exchange option. This category includes foreign exchange swaps

defined in Section 1a(25) of the CEA. The credit asset class would

encompass the underlying of any swap that is primarily based on one

instruments of indebtedness, including without limitation any swap

primarily based on one or more broad-based indices related to

instruments of indebtedness and any swap that is an index credit

default swap or a total return swap on one or more indices of debt

instruments. The equity asset class would encompass the underlying of

any swap that is primarily based on equity securities, including,

without limitation, any swap primarily based on one or more broad-based

indices of equity securities and any total return swap on one or more

equity indices. The other commodity asset class would encompass the

underlying of any swap not included in the credit, currency, equity or

interest rate asset class categories, including, without limitation,

any swap for which the primary underlying notional item is a physical

commodity or the price or any other aspect of a physical commodity.\25\

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\24\ Proposed Sec. 43.2(e) also provides that the Commission

may determine other asset classes.

\25\ Proposed Sec. 43.2(q) defines ``other commodity'' to mean

any commodity that cannot be grouped in one of the other four asset

classes (i.e., interest rate, currency, credit, equity). Other

commodities may include physical commodities (e.g., natural gas,

oil) but may also include non-physical commodities (e.g., weather

and property).

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The Commission requests comment on the following issues related to

the definition of asset class:

Do commenters agree with the proposed asset class

categories? If not, why? Should there be any additional categories of

asset classes? Should any categories of asset classes in the proposed

definition be changed or removed?

Do commenters agree on the proposed method of allocating

swaps among asset class categories? If not, why?

Should the Commission classify cross-currency rate swaps

as belonging to the interest rate asset class or to the currency asset

class? Please explain.

Should the asset class for other commodity be divided

further (e.g., agricultural commodity, energy commodity, etc.)? If so,

how should it be divided?

Confirmation

Proposed Sec. 43.2(g) defines the term ``confirmation'' to mean

the consummation (electronically or otherwise) of legally binding

documentation (electronic or otherwise) that memorializes the agreement

of the parties to all terms of a swap. A confirmation must be in

writing (whether electronic or otherwise) and must legally supersede

any previous agreement (electronic or otherwise). A confirmation

between parties to a swap may occur in various ways including via

facsimile, via ``confirmation by affirmation'' and via electronic

matching. A confirmation will contain all of the terms to a swap that

have been agreed to between two parties, whereas an affirmation

contains a subset of the terms of the confirmation.

Execution

As noted above, swap counterparties and reporting entities must

report ``as soon as technologically practicable after the time at which

the swap transaction has been executed.'' \26\ Proposed Sec. 43.2(k)

defines ``execution'' as the agreement between parties to the terms of

a swap that legally binds the parties to such terms under applicable

law. An agreement may be in electronic form (e.g., on a swap market or

via instant message), oral (e.g., over the phone), in writing (e.g., a

bespoke, structured transaction where documents are exchanged) or in

some other format not contemplated at this time. Execution immediately

follows or is simultaneous with the pre-execution affirmation of the

swap. The Commission notes that the proposed definition of execution

does not attempt to define what constitutes a legally enforceable

contract, only that execution occurs if and when the parties have

formed a legally enforceable contract (which is a matter to be decided

by applicable law).\27\ If pre-execution affirmation of the primary

economic terms creates a legally enforceable contract under applicable

law, then it would also constitute execution. If pre-execution

affirmation does not create a legally enforceable contract, then

execution would not have occurred at that stage.

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\26\ Section 2(a)(13)(A) of the CEA.

\27\ Because contract law varies by jurisdiction, the time at

which a legally enforceable contract is formed may differ based on

the applicable state or local law.

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Public Dissemination and Publicly Disseminate

Proposed Sec. 43.2(r) defines ``public dissemination'' and

``publicly disseminate'' to mean publishing and making available swap

transaction and pricing data in a non-discriminatory manner, through

the Internet or other electronic data feed that is widely published and

in a machine-readable format. The definition encompasses the non-

delayed provision of such data to the public, including market

participants, end-users, data vendors and news media.

Real-Time Disseminator

Proposed Sec. 43.2(s) defines ``real-time disseminator'' to mean

any registered SDR or third-party service provider that is responsible

for accepting and publicly disseminating swap transaction and pricing

data in real-time from multiple sources, in accordance with proposed

part 43.

Reportable Swap Transaction

Proposed Sec. 43.2(v) defines ``reportable swap transaction'' to

mean any executed swap, novation, swap unwind, partial novation,

partial swap unwind or such post-execution event that affects the price

of a swap. A reportable swap transaction includes not only the

execution of a swap contract, but also certain price-affecting events

that occur over the ``life'' of a swap. The Commission believes

novations and swap unwinds are events that clearly affect the price of

the swap and, therefore, should be publicly disseminated in real-time.

In addition to novations and swap unwinds, other price-affecting events

over the life of a swap may be considered reportable swap transactions.

For example, certain amendments that change the price terms of a swap

may be subject to the real-time public reporting requirements. Further,

the Commission recognizes that certain

[[Page 76145]]

market participants may enter into a swap and then immediately enter

into an amendment to the swap that alters the price terms, thus

reducing transparency and price discovery. The Commission believes that

including such post-execution price-affecting events to be reportable

for the purposes of real-time public reporting will enhance the

transparency and price discovery attributes of swaps trading.

The Commission requests comments on other post-execution events

that could affect price and that should be considered reportable swap

transactions.

Swap Instrument

Proposed Sec. 43.2(y) defines ``swap instrument'' to mean each

swap in the same asset class with the same or similar characteristics.

Under proposed Sec. 43.5, discussed below, registered SDRs would

determine the appropriate minimum block size based on the type of swap

instrument. After a registered SDR sets the appropriate minimum block

size for a swap instrument and groups a specific swap contract that is

listed on a swap market into a category of swap instrument, a swap

market that lists such swap contract would then reference such

appropriate minimum block size when adopting the minimum block trade

size for such swap. The Commission believes that it is appropriate to

group particular swap contracts into various broad categories of swap

instruments in determining the appropriate minimum block size.

The Commission is requesting general and specific comments on swap

instruments, as described in the discussion of appendix A to proposed

part 43 below.

Third-Party Service Provider

Proposed Sec. 43.2(bb) defines ``third-party service provider'' to

mean an entity, other than a registered SDR, that publicly disseminates

swap transaction and pricing data in real-time on behalf of a swap

market or, in the case of an off-facility swap where there is no

registered SDR available to publicly disseminate the data in real-time,

on behalf of a reporting party.

3. Proposed Section 43.3--Method and Timing for Real-Time Public

Reporting

Section 2(a)(13) of the CEA does not provide an explicit method or

timeframe in which swap transaction and pricing data must be reported

to the public in real-time. Instead, Section 2(a)(13) of the CEA

provides the Commission with authority to prescribe rules requiring:

(1) The parties to a swap transaction (including agents of the parties)

to report swap transaction and pricing data to the appropriate

registered entity in a timely manner; \28\ and (2) registered entities

to publicly disseminate swap transaction and pricing data.\29\ In

addition, Section 2(a)(13)(B) of the CEA provides that the Commission

is authorized to make swap transaction and pricing data available to

the public in such form and at such times as the Commission determines

appropriate to enhance price discovery. Accordingly, the Commission's

proposal in Sec. 43.3 sets out both the manner in which parties to a

swap must report the swap transaction and pricing data to the

appropriate registered entity, as well as the manner in which

registered entities must publicly disseminate such data. In addition,

proposed Sec. 43.3 sets out requirements for: (1) The acceptable forms

of media through which swap transaction and pricing data must be made

available to the public; (2) the appropriate methods to cancel or

correct erroneous or omitted data that has been publicly disseminated;

(3) the hours of operation that swap markets and registered SDRs must

maintain for the public dissemination of swap transaction and pricing

data; and (4) the recordkeeping of data by swap markets and registered

SDRs.

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\28\ See Section 2(a)(13)(F) of the CEA.

\29\ See Section 2(a)(13)(D) of the CEA. As discussed below, the

Commission's proposal requires registered entities to publicly

disseminate swap transaction and pricing data ``as soon as

technologically practicable''. See Section 2(a)(13)(A).

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i. Responsibilities of the Reporting Party To Report Data

As discussed above, Section 2(a)(13)(F) of the CEA provides that

the parties to a swap (including agents of the parties to a swap) shall

be responsible for reporting swap transaction information to the

appropriate registered entity. In general, proposed Sec. 43.3(a)

provides that the ``reporting party'' to each swap transaction shall be

responsible for reporting any reportable swap transaction to a

registered entity as soon as technologically practicable.\30\ Proposed

Sec. 43.2(w) defines ``reporting party'' to mean a party to a swap

with the duty to report a reportable swap transaction to a registered

entity. Under this proposal, the determination of who has this duty

depends on whether the reportable swap transaction is executed on a

swap market. For reportable swap transactions that are executed on a

swap market, proposed Sec. 43.3(a)(2)(i) provides that the requirement

for parties to report the swap transaction and pricing data is itself

satisfied by the act of execution on the swap market. The Commission

believes that this approach should result in the timeliest and most

efficient method of reporting swap transaction and pricing data, since

swap markets by definition would have immediate access to the most

accurate execution information related to each swap transaction (e.g.,

information on the counterparties to the swap, date and time of

execution, bid-offer information, final pricing information, whether

the swap should be deemed a block trade, etc.). Proposed Sec.

43.3(a)(2)(ii) recognizes that block trades may not be executed on a

swap market, but would be effective pursuant to the rules of the swap

market. For that reason, this section would require the reporting party

to the block trade to report such trades to the swap market in

accordance with the rules of the swap market and proposed Sec. 43.5.

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\30\ The Commission proposes to define ``timely manner'' to mean

``as soon as technologically practicable''.

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For off-facility swaps, proposed Sec. 43.3(a)(3) provides that,

except otherwise provided in proposed Sec. 43.5, the reporting party

must report (i.e., transmit or otherwise electronically transfer) swap

transaction and pricing data to a registered SDR as soon as

technologically practicable. Once a reporting party has reported its

swap transaction and pricing data to a registered SDR, the reporting

party has satisfied its requirement to report pursuant to Section

2(a)(13)(F) of the CEA and this proposed part 43.

The Commission believes that advanced technologies presently exist

through which a reporting party to an off-facility swap can send swap

transaction and pricing data to a registered SDR as soon as

technologically practicable. Through discussions with market

participants, the Commission understands that many swaps are executed

over the telephone and then inputted manually into electronic recording

systems. The Commission believes that reporting parties should remain

current with changes in technology and regularly update their

technology infrastructure to decrease the time of transmission of swap

transaction and pricing data to real-time disseminators.\31\

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\31\ Two examples of how reporting technology can improve over

time are seen in the evolution of (1) the Financial Industry

Regulatory Authority's (``FINRA'') Trade Reporting and Compliance

Engine (``TRACE''), and (2) the reporting of over-the-counter

(``OTC'') equity securities. Under the reporting rules for TRACE,

the current maximum reporting time requirement for publicly

reporting transaction and pricing data for corporate bonds is 15

minutes. FINRA staff has noted in meetings with Commission staff

that over 90% of its trades are reported within five minutes. See

FINRA Rule 6730 (``Transaction Reporting''). Available at: http://

finra.complinet.com/en/display/display_

main.html?rbid=2403&element_id=4402.

With respect to the OTC securities market, FINRA has recently

reduced the reporting requirements for these securities to within 30

seconds of execution. See Securities Exchange Act Release No. 61819

(March 31, 2010), 75 FR 17806 (April 7, 2010 (Notice of Filing of

Amendment No. 2 and Order Granting Accelerated Approval of File No.

SR-FINRA-2009-061)); See also, FINRA Rules 6282(a); 6380A(a) and

(g); 6380B(a) and (f); 6622(a) and (f); 7130(b); 7230A(b); 7230B(b);

and 7330(b).

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[[Page 76146]]

The determination of which party to a swap will be deemed the

reporting party for the purposes of proposed Sec. 43.3(a) chiefly

depends on the types of entities that are parties to the swap.

Specifically, proposed Sec. 43.3(a)(3) provides that for off-

facility swaps:

If only one party is a swap dealer or MSP, the swap dealer

or MSP shall be the reporting party.

If one party is a swap dealer and the other party is an

MSP, the swap dealer shall be the reporting party.

If both parties are swap dealers, the swap dealers shall

designate which party shall be the reporting party.

If both parties are MSPs, the MSPs shall designate which

party shall be the reporting party.

If neither party is a swap dealer or an MSP, the parties

shall designate which party (or its agent) shall be the reporting

party.

Through discussions with market participants at the Roundtable and

external meetings, the Commission believes that swap dealers and MSPs

are more likely to have the infrastructure and resources available to

report their swap transaction information to a registered SDR in a

quicker period of time than parties to an end-user-to-end-user, off-

facility swap. Indeed, the Commission recognizes that non-financial

end-users do not frequently enter into swap transactions and may not

have the technology readily available to report swap transaction and

pricing data for the purposes of the real-time reporting requirements

under Section 2(a)(13)(F) of the CEA, and therefore, may lead to longer

reporting time periods from execution for such reporting parties.

The Commission understands that the requirement to report swap

transaction and pricing data as soon as technologically practicable may

increase costs for reporting parties as a result of such parties having

to upgrade their technology infrastructures. Based on discussions with

market participants, however, the Commission believes that technology

solutions may develop, such as web portals and other Internet-based

interfaces, which will aide reporting parties in complying with the

requirements proposed in Sec. 43.3(a) and reduce the cost burden

associated with their compliance. In addition, the Commission believes

that the total number of end-user to end-user swaps will be small and

thus the costs imposed on end-users will likely be lower relative to

the total number of swaps.\32\

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\32\ In addition, the Commission believes that increased

transparency may lead to more robust price competition, thus

decreasing bid-offer spreads in certain swap contracts and

benefiting end-users.

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The Commission's proposal with respect to off-facility swaps is

consistent with the reporting requirements for the reporting of

uncleared swaps to a registered SDR under Section 4r(a) of the CEA.\33\

After consulting with market participants at the Roundtable and in

meetings with market participants, the Commission believes that this

consistency may reduce technology infrastructure costs for swap dealers

and MSPs, particularly since swap dealers and MSPs will likely

establish direct connectivity to registered SDRs to satisfy the

reporting requirements for the reporting of uncleared swaps under

Section 4r(a) of the CEA.

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\33\ The requirements of Section 4r(a)(3) of the CEA are

discussed in footnote 18 above.

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In the event that no registered SDR exists or is available to

accept and publicly disseminate swap transaction and pricing data,

proposed Sec. 43.3(a)(4) establishes a special rule for the real-time

reporting of these swaps. Specifically, proposed Sec. 43.3(a)(4)

provides that the reporting party may report such data to a third-party

service provider, which provides public dissemination services. Similar

to the requirements placed on swap markets when such markets choose to

publicly disseminate through a third-party service provider, the

reporting party will be required to ensure that the swap transaction

and pricing data is publicly disseminated in real-time.

The Commission requests comment related to the responsibilities of

the parties to a swap to report swap transaction and pricing data. In

addition, the Commission requests specific comment on the following

issues:

Should the Commission establish maximum timeframes in

which reporting parties must report to a registered SDR that accepts

and publicly disseminates swap transaction and pricing data in real-

time (e.g., as soon as technologically practicable but no later than

five minutes)? If so, what should the maximum timeframes be and how

should they be determined?

Do commenters believe that the rules should require that

any additional parties to a swap be the reporting party for a swap? If

so, which parties and in which circumstances?

Should the Commission's final rules address the reporting

and public dissemination of swap transaction and pricing data for

swaps, which are transacted between two non-U.S. persons? If so, how

should the Commission's final rules address these situations?

In off-facility swap transactions where a non-U.S. swap

dealer or non-U.S. MSP transacts with a U.S.-based end-user, which

party to the swap should have the obligation to report to a real-time

disseminator? Are there other situations involving non-U.S. parties

where this issue may arise? How should the Commission address these

situations in its final rules?

Should there be an alternative method of reporting and

subsequently disseminating swap transaction and pricing data in real-

time when no registered SDR is available to accept and publicly

disseminate such data? If there is no registered SDR available and

there is no third-party service provider available to accept and

publicly disseminate data for a swap transaction, what should the real-

time reporting requirement be for such transaction?

Is there a better or more efficient alternative to have

swap transaction and pricing data reported by a reporting party to a

registered SDR for public dissemination in real-time? If so, what would

that be?

ii. Responsibilities of Swap Markets To Publicly Disseminate Swap

Transaction and Pricing Data in Real-Time

Section 2(a)(13)(D) of the CEA gives the Commission the authority

to require registered entities to publicly disseminate swap transaction

and pricing data.\34\ Proposed Sec. 43.3(b) provides the method and

timeliness of public dissemination of swap transaction and pricing

data. Proposed Sec. 43.3(b) distinguishes the public dissemination

requirement for swaps that are executed on a swap market versus those

swaps that are executed off-facility.\35\ Irrespective of the mode of

[[Page 76147]]

execution, the Commission sought to provide market participants with

reasonable guidelines to report and publicly disseminate swap

transaction and pricing data in real-time.

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\34\ As noted above, Section 1a(40) of the CEA, as amended by

Section 721(a) of the Dodd-Frank Act, defines ``registered entity''

to include SEFs, DCOs, DCMs and SDRs. The Commission has determined,

however, not to apply the Section 2(a)(13)(D) requirement to DCOs

because it believes that the value of timely public dissemination

outweighs the benefit of waiting until a swap is presented to a

clearing organization.

\35\ Block trades that are transmitted pursuant to a swap

market's rules are addressed in proposed Sec. 43.5.

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With respect to reportable swap transactions that are executed on a

swap market, proposed Sec. 43.3(b)(1)(i) provides that a swap market

shall satisfy its requirement to publicly disseminate swap transaction

and pricing data by: (1) Sending, or otherwise electronically

transmitting, swap transaction and pricing data to a registered SDR

that accepts swaps for the particular asset class of reportable swap

transactions; or (2) disseminating such data to the public through a

third-party service provider operating on behalf of the swap

market.\36\ The Commission notes that a swap market that relies on a

third-party service provider to disseminate swap transaction and

pricing data, for example through a contractual agreement, remains

responsible for compliance with the rules of proposed part 43.

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\36\ As discussed immediately below, proposedSec. 43.3(b)(2)

prohibits a swap market or reporting parties from disclosing swap

transaction and pricing data prior to sending such data to a real-

time disseminator.

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If a swap market sends swap transaction and pricing data to a

registered SDR, proposed Sec. 43.3(b)(1)(i) provides that such data

must be sent as soon as technologically practicable after the swap has

been executed. As a result of industry comments made during staff

meetings and at the Roundtable, the Commission believes that

technologies presently exist through which a swap market can send swap

transaction and pricing data to a registered SDR almost instantaneously

after execution of a reportable swap transaction.\37\ Under the

proposal, once the swap market has sent the swap transaction and

pricing data to a registered SDR, the swap market will have satisfied

its dissemination requirement.

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\37\ See, e.g., Comments by Steve Joachim, Executive Vice

President, Transparency Services, FINRA (``[T]he technology for

collecting, aggregating, and disseminating [swap] data, assuming

[the] use [of] current infrastructures * * * can allow [real-time

public reporting] to work pretty efficiently.'') Roundtable Tr. at

277-78.

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In contrast, proposed Sec. 43.3(b)(1)(ii) provides that if a swap

market sends swap transaction and pricing data to a third-party service

provider, the swap market does not satisfy its requirement to publicly

disseminate swap transaction and pricing data until such data is

actually disseminated to the public. The Commission's proposal

distinguishes between a registered SDR and a third-party service

provider because the Commission would have oversight authority over a

registered SDR, but not over a third-party service provider. This

distinction would be especially important if, for example, a third-

party service provider failed to publish swap transaction and pricing

data in real-time. Under those circumstances, the Commission may have

no authority over the third-party service provider to remedy the

failure. Since the swap market is still obligated to publicly

disseminate, the Commission may require the swap market to resolve the

failure and publicly disseminate the swap transaction and pricing data

through another third-party service provider or a registered SDR.

Accordingly, the Commission would expect that a swap market that uses a

third-party service provider to meet its public dissemination

obligation should be vigilant in monitoring the timeliness and accuracy

of the provider's publication of the swap market's swap transaction and

pricing data.

Proposed Sec. 43.3(b)(2)(i) prohibits swap markets or any

reporting party to a swap from disclosing the swap transaction and

pricing data before the real-time disseminator has publicly

disseminated such data. The Commission believes that this prohibition

will ensure that swap transaction and pricing data is disseminated

uniformly and is not published in a manner that creates unfair

advantages for any segment of market participants.

The proposed rules do allow for swap markets and swap dealers to

provide their market participants and customers, respectively, with

swap transaction and pricing data for swaps that they execute. In

particular, proposed Sec. 43.3(b)(2)(ii) provides that notwithstanding

the non-disclosure provision in proposed Sec. 43.3(b)(2)(i), a swap

market may make swap transaction and pricing data available to

participants on its market prior to the public dissemination of such

data; however, the swap market must send such swap transaction and

pricing data to a real-time disseminator at the same time as or earlier

than it makes such data available to its market participants.

Similarly, proposed Sec. 43.3(b)(2)(iii) provides that notwithstanding

the non-disclosure provision in proposed Sec. 43.3(b)(2)(i), a swap

dealer may make swap transaction and pricing data for off-facility

swaps available to its customer base prior to the public dissemination

of such data; however, such swap dealer must send such swap transaction

and pricing data to a registered SDR at the same time as or earlier

than it makes such data available to its customer base. In both cases,

the data may only be made available to the particular market (e.g.,

data for a swap executed on a particular SEF or DCM may only be shared

with market participants on that SEF or DCM). The Commission believes

that granting swap markets and swap dealers the flexibility to provide

swap transaction and pricing data to its market participants or

customer base, respectively, concurrent with reporting to the real-time

disseminator may incentivize a rapid transmittal of data to the real-

time disseminator.

The Commission requests comment generally on the responsibilities

of swap markets to publicly disseminate real-time swap transaction and

pricing data. In addition, the Commission requests comment on the

following issues:

Should the Commission establish a maximum timeframe in

which swap markets must report swap transaction and pricing data to a

real-time disseminator? If so, what is an appropriate maximum timeframe

and why?

Do commenters agree with the Commission's proposal that

swap markets satisfy their public dissemination requirement by either

sending to a registered SDR that accepts and disseminates swap

transaction and pricing data or by publicly disseminating through a

third-party service provider? If not, why? Should there be any other

means by which a swap market can satisfy its public dissemination

requirement? If yes, by what other means?

iii. Requirements for Registered SDRs

Sections 2(a)(13)(D) and 21(c)(4)(B) of the CEA provide the

Commission with the authority to require registered SDRs to publicly

disseminate swap transaction and pricing data in real-time. In

particular, Section 2(a)(13)(D) provides that the Commission may

require registered entities to publicly disseminate swap transaction

and pricing data. Registered SDRs are registered entities as defined in

Section 1(a)(40)(E) of the CEA. Section 21(c)(4)(B) of the CEA provides

that an SDR must provide swap transaction information in such form and

at such frequency as the Commission may require to comply with the

real-time reporting requirements under Section 2(a)(13).

Pursuant to these authorities, the Commission is proposing Sec.

43.3(c)(1) to require that registered SDRs that accept and publicly

disseminate such data in real-time to comply with proposed part

[[Page 76148]]

49 of the Commission's regulations.\38\ Under proposed part 49, a

registered SDR may choose, but would not be required, to publicly

disseminate swap transaction and pricing data in real-time for an asset

class of swaps. Further, a registered SDR that accepts swap transaction

and pricing data for public dissemination must publicly disseminate

such data as soon as technologically practicable upon receipt of such

data. Proposed Sec. 43.3(c)(2) provides that if a registered SDR

chooses to publicly disseminate swap transaction and pricing data in

real-time for its specified asset class,\39\ the registered SDR must

accept and publicly disseminate swap transaction and pricing data for

all swaps within such asset class. This requirement is intended to

minimize the number of swaps that are not accepted by a registered SDR

for public dissemination by enabling market participants to easily

identify the SDR that accepts particular asset classes. In addition,

proposed Sec. 43.3(c)(3) provides that any registered SDR that accepts

and publicly disseminates swap transaction and pricing data in real-

time shall perform, on an annual basis, an independent review of its

security and other system controls, in accordance with established

audit procedures and standards, for the purposes of ensuring that the

requirements of proposed part 43 are met.

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\38\ In a forthcoming release, the Commission will propose part

49 of the Commission's regulations, which will set out the

requirements that a registered SDR must satisfy in connection with

its receipt and public dissemination of swap transaction and pricing

data in real-time. Proposed part 49 of the Commission's regulations

also will identify the necessary systems that registered SDRs must

develop and maintain in order to receive and publicly disseminate

such data.

\39\ In the forthcoming proposed part 49 of the Commission's

regulations, registered swap data repositories will select the asset

class(es) for which they accept swaps.

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The Commission requests comment generally on the requirements for

registered SDRs under proposed part 43. In addition, the Commission

requests comment on whether it should require registered SDRs to

publicly disseminate all real-time swap transaction and pricing data.

iv. Requirements for Third-Party Service Providers

If a swap market chooses to publicly disseminate swap transaction

and pricing data through a third-party service provider, proposed Sec.

43.3(d) provides that the swap market must ensure that the provider

maintains standards that are, at a minimum, equal to those standards

for registered SDRs described in proposed part 43 and the relevant

provisions relating to real-time public reporting that will be proposed

in part 49 of the Commission's regulations. In addition, this section

provides that the swap market must ensure that the Commission has

access to any swap transaction and pricing data, either through the

swap market or directly through the third-party service provider.

v. Availability of Real-Time Swap Transaction and Pricing Data

Under proposed Sec. 43.3(e), registered SDRs that report swap

transaction and pricing data to the public in real-time, must make the

data available and accessible in an electronic format that is capable

of being downloaded, saved and/or analyzed. The Commission is proposing

this provision to address the concern that a registered SDR may flash

real-time swap transaction and pricing data to selected market

participants with the technology to view such data without making such

information available to the public and all market participants.

Requiring registered SDRs to allow market participants and the public

to download, save and/or analyze the real-time swap transaction and

pricing data upon public dissemination, ensures equal access to real-

time swap transaction and pricing data.

vi. Errors or Omissions

Proposed Sec. 43.3(f)(1) sets out the process through which any

errors or omissions in swap transaction and pricing data that were

publicly disseminated in real-time shall be corrected or cancelled.

Section 43.3(f)(1) sets out different processes depending on whether

the data error or omission was discovered by the reporting party to the

swap or the non-reporting party. Proposed paragraph (f)(1)(i) provides

that if the non-reporting party becomes aware of an error or omission

in the data reported for its swap, it shall promptly notify the

reporting party of the correction. Proposed paragraph (f)(1)(ii)

provides that if the reporting party becomes aware of an error or

omission in the reported data, it is required to promptly submit the

corrected data to the swap market or real-time disseminator. Proposed

paragraph (f)(1)(iii) provides that if the swap market becomes aware of

an error or omission in the swap transaction and pricing data reported

for a swap, whether or not it received notification from the reporting

party, the swap market shall promptly submit corrected data to the

real-time disseminator. Proposed paragraph (f)(1)(iv) provides that a

registered SDR that accepts and publicly disseminates swap transaction

and pricing data in real-time must publicly disseminate any

cancellations or corrections to such data as soon as technologically

practicable after receipt or discovery of such cancellation or

correction.

The proposal also seeks to prevent fraudulent dissemination for the

purpose of distorting market pricing. Specifically, proposed paragraph

(f)(2) of this section provides that reporting parties, swap markets

and registered SDRs that accept and publicly disseminate swap

transaction and pricing data in real-time are prohibited from

submitting or agreeing to submit a cancellation or correction for the

purpose of re-reporting swap transaction and pricing data in order to

gain or extend a delay in publication or to otherwise evade the

reporting requirements of proposed part 43.

Proposed paragraph (f)(3) of this section sets forth the

appropriate method of canceling incorrectly published swap transaction

and pricing data. Specifically, this paragraph provides that a real-

time disseminator must cancel incorrect data that has been disseminated

to the public by publishing a cancellation of the incorrect data in the

format and manner described in appendix A to proposed part 43.

Proposed paragraph (f)(4) of this section sets forth the

appropriate method of correcting erroneous or omitted swap transaction

and pricing data. Specifically, this paragraph provides that a real-

time disseminator must correct any erroneous or omitted data that has

been disseminated to the public by first publicly disseminating a

cancellation of the incorrect data and then publicly disseminating the

correct data pursuant to the format described in appendix A to proposed

part 43.

Depending on the situation, a cancellation may or not be followed

by a correction. For example, a cancellation may occur in a situation

where a clearinghouse does not accept a particular swap for clearing

and, therefore, the swap may be busted and not require a correction. In

another situation, one or more terms to a swap may be incorrectly

reported by the party responsible for reporting the swap, and upon

confirmation of the swap the error in the terms would be realized.

Under the proposed rules, such a situation would require a cancellation

of the original incorrectly reported data, followed by a correction

with the correct swap transaction and pricing data. Whenever reporting

a cancellation or correction, the real-time disseminator must report

the data in the same form

[[Page 76149]]

and manner in which it was originally reported and include a date stamp

reflecting the time of the original transaction, so that market

participants and the public are aware of exactly which swap has been

canceled or corrected.

vii. Hours of Operation

Since Section 2(a)(13) of the CEA requires that swap transaction

and pricing data be reported and subsequently disseminated to the

public in real-time, the Commission proposes that registered SDRs

maintain certain hours of operation in order to comply with this

legislative requirement. Proposed Sec. 43.3(g)(1) requires registered

SDRs that accept and publicly disseminate swap transaction and pricing

data in real-time to be able to receive and publicly disseminate such

data at all times, twenty-four hours a day.

Because the Commission recognizes that a registered SDR

periodically may need to conduct maintenance on its electronic systems,

proposed Sec. 43.3(g)(2) would permit a registered SDR to declare

special closing hours to perform such maintenance on an ad hoc basis.

In addition, this section would require a registered SDR to provide

advance notice of its special closing hours to market participants and

the public. Further, proposed Sec. 43.3(g)(3) provides that registered

SDRs should avoid scheduling special closing hours during those periods

when the U.S. markets and major foreign swap markets are most active.

Proposed Sec. 43.3(h) provides that during special closing hours, a

registered SDR that accepts and publicly disseminates swap transaction

and pricing data in real-time shall have the capability to receive and

hold in queue information regarding reportable swap transactions

pursuant to proposed part 43.

The Commission requests comment on the following questions

regarding hours of operation:

Should swap markets have requirements regarding hours of

operation for the purposes of the real-time reporting requirements?

Do the proposed requirements regarding hours of operation

provide registered SDRs with sufficient flexibility to conduct the

necessary maintenance on their electronic systems?

Do commenters agree that registered SDRs that accept and

publicly disseminate swap transaction and pricing data should have the

capability to receive and hold such data in queue during special

closing hours? If not, why and are there any alternatives?

viii. Recordkeeping Requirements

Proposed Sec. 43.3(i) requires reporting parties, swap markets and

registered SDRs to retain all data related to a reportable swap

transaction (including large notional swaps and block trades) for a

period of not less than five years following the time at which such

reportable swap transaction is publicly disseminated. The Commission

believes that it is necessary to retain such records in order to

recreate transaction profiles for the purposes of trade practice

surveillance and compliance. This requirement is separate and distinct

from any other recordkeeping requirements under the Commission's

regulations, including Sec. 1.31.\40\

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\40\ Section 1.31 of the Commission's regulations generally

provides, inter alia, all books and records required to be kept by

the CEA or the Commission's regulations shall be kept for a period

of five years from the date such records come into existence. In

addition, Sec. 1.31 provides that the records shall be readily

accessible during the first two years of the five year period.

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The Commission requests comment on the following questions

regarding recordkeeping requirements:

Do commenters believe that the proposed retention period

for data related to reportable swap transactions is an appropriate

period of time?

Should the recordkeeping requirement be the same as Sec.

1.31 of the Commission's regulations?

What are the anticipated costs associated with storing

such real-time swap transaction and pricing data for a longer period of

time?

ix. Fees Charged by Registered SDRs

The Commission believes that the intent and purpose of Sections

2(a)(13) and 21 of the CEA is for registered SDRs to provide open and

equal access to their data collection services for the purposes of

real-time public reporting.\41\ Consistent with open and equal access

to registered SDR services, the Commission further believes that fees

or charges adopted by a registered SDR for its data collection services

for the purposes of real-time public reporting must be equitable and

non-discriminatory. Proposed Sec. 43.3(j) ensures that any fees or

charges assessed on a reporting party or a swap market are consistent

with the intent and purpose of Sections 2(a)(13) and 21. Proposed Sec.

43.3(j) also prohibits a registered SDR from offering a discount based

on the volume of swap transaction and pricing data reported to the

registered SDR for public dissemination, unless such discount is

offered to all reporting parties and swap markets.

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\41\ Section 21 of the CEA sets forth the rules with respect to

the business conduct standards and regulation of SDRs.

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x. Consolidated Public Dissemination of Swap Data

The Commission recognizes the benefits of consolidating the public

dissemination of swap transaction and pricing data in real-time.\42\

During the Roundtable and in Commission external meetings, several

market participants commented on their desire for the Commission to

establish a consolidator in order to avoid fragmentation of the

publication of swap transaction and pricing data. The Commission

believes that a real-time reporting consolidator of swap transaction

and pricing data could provide a comprehensive record of all swaps

executed in chronological order. Additionally, a real-time reporting

consolidator would create greater anonymity for the parties to

transactions, particularly for swap dealers and MSPs.

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\42\ The Commission considered the experience of the European

Union under the Markets in Financial Instruments Directive

(``MiFID'') and its Financial Services Action Plan, which went into

effect on November 1, 2007 for OTC equity securities. Under this

plan, the European Union broadened post-trade transparency

requirements in European OTC equity securities markets. While MiFID

required transparency, many market participants expressed concerns

about the fragmentation of post-trade transparency under the MiFID

regime, especially in OTC trading. The quality, disparate timing of

publication and other barriers to consolidation of post-trade data

were all highlighted as problems by the Committee of European

Securities Regulators (``CESR'') in its Technical Advice report. See

``CESR Technical Advice to the European Commission in the Context of

the MiFID Review and Responses to the European Commission Request

for Additional Information'' (CESR/10-802, CESR/10-799, CESR/10-808,

CESR/10-859), July 29, 2010. Available at: http://www.cesr-eu.org/

popup2.php?id=7003.

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Unlike the federal securities laws,\43\ however, neither the CEA

nor the Dodd-Frank Act grants the Commission explicit statutory

authority to establish a real-time reporting consolidator.\44\ The

Commission requests comment on methods to encourage the consolidation

of publicly disseminated swap transaction and pricing data.

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\43\ See, e.g., 15 U.S.C. 78k-1.

\44\ As mentioned above, FINRA oversees TRACE, which is a

mechanism through which post-trade data regarding OTC secondary

market securities in fixed income is reported. FINRA requires its

broker-dealer member firms to report transactions to TRACE under an

SEC-approved set of rules. Beginning in 2002, TRACE published

transaction data on a consolidated tape. TRACE first published data

on very liquid transactions and later phased-in additional products.

More information on TRACE can be accessed at: http://www.finra.org/

Industry/Compliance/MarketTransparency/TRACE/index.htm.

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[[Page 76150]]

4. Proposed Section 43.4 and Appendix A to Proposed Part 43--Swap

Transaction and Pricing Data To Be Publicly Disseminated in Real-Time

As noted above, Section 2(a)(13)(B) authorizes the Commission to

prescribe regulations to make swap transaction and pricing data

available in real-time in such form as the Commission determines

appropriate to enhance price discovery. Proposed Sec. 43.4 establishes

the format in which such data will be publicly disseminated.

Proposed Sec. 43.4(a) provides that swap transaction information

shall be reported to a real-time disseminator so that the real-time

disseminator can publicly disseminate swap transaction and pricing data

in real-time in accordance with proposed part 43, including the manner

and format described in appendix A to proposed part 43.\45\ Appendix A

to proposed part 43 provides a list of data fields for which a

registered SDR must publicly disseminate swap transaction and pricing

data. The descriptions and examples in appendix A to proposed part 43

are intended to provide guidance on an acceptable public reporting

format and order for the data fields that are listed.

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\45\ Proposed Sec. 43.4 would not require that a reporting

party or swap market provide swap transaction and pricing data in a

particular format or that such data be anonymized prior to being

sent to a real-time disseminator. Reporting parties and swap markets

must, however, provide real-time disseminators with the information

required to publicly disseminate the required data fields.

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Proposed Sec. 43.4(b) provides that any registered SDR that

accepts and publicly disseminates swap transaction and pricing data in

real-time shall publicly disseminate the information in the data fields

described in appendix A to proposed part 43.

Proposed Sec. 43.4(c) provides that a registered SDR that accepts

and publicly disseminates swap transaction and pricing data in real-

time may, as necessary, require reporting parties and swap markets to

report such information in addition to the data described in appendix A

to proposed part 43, in order to match the swap transaction and pricing

data that was publicly disseminated in real-time to the data reported

to a registered SDR or confirm that parties to a swap have reported in

a timely manner pursuant to Sec. 43.3. Such additional information

shall not be publicly disseminated, on either a transactional or

aggregate basis, by the registered SDR that accepts and publicly

disseminates swap transaction and pricing data in real-time.

Proposed Sec. 43.4(d) provides that the Commission may determine

from time to time to amend the data fields described in appendix A.

This section gives the Commission flexibility to add, modify or delete

data fields as the Commission may deem appropriate and necessary to

enhance price discovery and prevent the disclosure of the identities of

the parties to any swap.

The Commission requests comment generally on the real-time

reporting and public dissemination of the data described in appendix A

to proposed part 43. In addition, the Commission requests comment on

the following issues:

Should the Commission specify the format and/or manner in

which swap transaction and pricing data must be reported to a real-time

disseminator?

Should the Commission require that registered SDRs follow

a specified order and format for the public dissemination of swap

transaction and pricing data instead of providing examples and

guidance?

i. Ensuring the Anonymity of the Parties to a Swap

Sections 2(a)(13)(C)(iii) and 2(a)(13)(E)(i) of the CEA emphasize

the importance of maintaining the anonymity of the parties to a

swap.\46\ Proposed Sec. 43.4(e)(1) prohibits the disclosure of swap

transaction and pricing data that is publicly disseminated in real-

time, which identifies or otherwise facilitates the identification of a

party to a swap. This section further provides that a registered SDR

may not report such data in a manner that discloses or otherwise

facilitates the identification of a party to a swap.

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\46\ The legislative history of the Dodd-Frank Act states that

``regulators are to ensure that the public reporting of swap

transactions and pricing data does not disclose the names or

identities of the parties to the transactions.'' 156 Cong. Rec.

S5,921 (daily ed. July 15, 2010) (statement of Sen. Blanche

Lincoln).

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The Commission understands that this latter prohibition may lead to

a loss of clarity with respect to the precise characteristics of swaps

in certain circumstances.\47\ Proposed Sec. 43.4(e)(2) provides that a

reporting party or a swap market must provide a real-time disseminator

with a specific description of the underlying asset and tenor of a

swap. The description must be general enough to provide anonymity, but

specific enough to provide for a meaningful understanding of the swap.

The Commission recognizes that it is conceivable that in situations

where few parties trade a particular type of underlying asset, the

description of that asset may inadvertently reveal the identity of one

or more party(ies) to the swap.

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\47\ See, e.g., comments from Steve Joachim, Executive Vice

President, Transparency Services, FINRA (``I think we have to

recognize that when we're talking about transparen[cy] in

marketplaces that if we want to pursue the goal of transparency,

that trading in transparent markets is different than trading in

opaque markets and that you lose some anonymity no matter what

happens. There will not be total confidentiality.''), Roundtable Tr.

at 258.

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For off-facility swaps, particularly other commodity swaps with

very specific underlying assets, market participants may be able to

infer the identity of a party or parties to a swap based on the

description of the underlying asset.\48\ For example, if the underlying

asset to an off-facility swap is an energy commodity contract that has

a specific delivery point at Lake Charles, Louisiana and such contract

is only traded by two companies, then disclosing the underlying asset

to the public would effectively disclose that one of those companies

was entering into the trade. Proposed Sec. 43.4(e)(2) allows reporting

parties of off-facility swaps to publicly disseminate a description an

underlying asset or tenor that by virtue of its real-time reporting

would enable market participants to infer the identity of a party to

the swap, in a way that does not disclose a party to a swap, but

provides a meaningful understanding of the swap for the purpose of

price discovery.\49\ In the example, instead of saying a specific

delivery point of Lake Charles, Louisiana, the reporting party may use

a broader geographic region (e.g., Louisiana, Gulf coast, etc.) under

the Commission's proposal. The Commission believes that the issue of

the description being too specific as to divulge the identity of a

party to a swap

[[Page 76151]]

is more likely to arise when the underlying asset is a commodity. The

Commission, however, believes that other asset classes and markets may

have similar issues. In contrast, for those swaps that are executed on

a swap market, the Commission believes that, since such contracts will

be listed on a particular trading platform or facility, it will be

unlikely that a party to a swap could be inferred based on the

reporting of the underlying asset and therefore parties to swaps

executed on swap markets must report the specific underlying assets and

tenor of the swap.

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\48\ See, e.g., comments from Peter Axilrod, Managing Director,

New Business Development, The Depository Trust & Clearing

Corporation (``I guess I'd like to make a plea for people to be

careful with commodities. It's a little bit of a different market

than what most people have been talking about. There are delivery

points all over the country, there are load-serving entities, many

of them all over the country, there are producers all over the

country, and if you force people to specify a particular delivery

point all the time, people are pretty much going to know who's

making those trades. So, whatever you do in terms of what

commodities data is reported publicly, you have to leave room for

some flexibility in terms of anonymization [sic]. So, if the

delivery points are too specific, you may never get much anonymizing

[sic] of trades, but if you allow the geographic area to be expanded

or to have some anonymity criteria and perhaps pick the set of the

delivery points that meets the anonymity criteria, something like

that needs to be done.''), Roundtable Tr. at 252-253.

\49\ It is important to note that the reporting requirement in

this section is separate from the requirement to report swap

transaction information to a registered SDR pursuant to Section

2(a)(13)(G) of the CEA. The CEA does not require swap transaction

information be reported in a manner that protects anonymity since

such information will not be publicly disseminated.

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The Commission recognizes that swap markets may differ and that new

types of swaps may emerge; therefore, the Commission is not proposing

specific guidelines at this time for how an underlying asset should be

described for the purposes of proposed Sec. 43.4(e)(2). The

specificity of the description will vary based on particular markets

and contracts, but the proposed rules provide reporting parties with

discretion on how to report swap transaction and pricing data. Proposed

Sec. 43.3(e)(2) and proposed part 23 of the Commission's regulations

require that swap dealers and MSPs who do not disclose a specific

description of an underlying asset and/or tenor because such disclosure

would facilitate the identity of a party to a swap, must document why

the specific information regarding the underlying asset and/or tenor

was not publicly disseminated.\50\ Further, swap dealers and MSPs must

retain and provide such written justifications to the Commission

pursuant to proposed part 23 of the Commission's regulations.\51\

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\50\ In a forthcoming release, the Commission will propose part

23 of the Commission's regulations, which will set out the internal

business conduct standards for swap dealers and MSPs, including

recordkeeping requirements in connection with real-time public

reporting.

\51\ See id.

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The Commission notes that the language found in Section

2(a)(13)(C)(iii) of the CEA, requiring that real-time public reporting

be done ``in a manner that does not disclose the business transactions

and market positions of any person'' is similar to the language found

in Section 8(a) of the CEA. Section 8(a)(1) of the CEA provides, in

relevant part, that ``the Commission may not publish data and

information that would separately disclose the business transactions or

market positions of any person and trade secrets of or names of

customers * * *.'' \52\ For the purposes of protecting the

confidentiality of participants' business transactions or market

positions as required under Section 8(a)(1) of the CEA, the Commission

has historically created guidelines for various market information

reports (e.g., Bank Participation Reports (``BPRs'') and Commitments of

Traders (``COT'') reports) that prevent market participants and the

public from reverse-engineering aggregate data to determine the

participants that submitted the data.\53\ The Commission believes that

the approach in the proposed rules regarding protecting the identities

of parties to a swap under Sections 2(a)(13)(C)(iii) and 2(a)(13)(E)(i)

of the CEA is consistent with the approach to confidentiality under

Section 8(a)(1).

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\52\ 7 U.S.C. 12(a)(1).

\53\ The BPRs, which provide large-trader positions of banks

participating in various financial and non-financial commodity

futures, collect data for every market where five or more banks hold

reportable positions. The BPRs break the banks' positions into two

categories--U.S. Banks and Non-U.S. Banks--and show their aggregate

gross long and short market positions for each type. However, in

those markets where the number of banks in either category (U.S.

Banks or Non-U.S. Banks) is less than five, the number of banks in

each of the two categories is omitted and only the total number of

banks is shown for that market. Available at:http://www.cftc.gov/

MarketReports/BankParticipationReports/ExplanatoryNotes/index.htm.

Similarly, the COT reports provide a breakdown of each Tuesday's

open interest for markets in which 20 or more traders hold positions

equal to or above the reporting levels established by the

Commission. Available at:http://www.cftc.gov/MarketReports/

CommitmentsofTraders/AbouttheCOTReports/index.htm.

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The Commission requests comment generally on the protection of

identities of the parties to the swap relating to real-time public

reporting. In addition, the Commission requests comment on the

following issues:

Do commenters agree with the proposed method for real-time

reporting of less specific information with regard to the underlying

asset and tenor data fields in order to protect the anonymity of

parties to a swap? If not, why?

Should any additional data fields be allowed to have less

specificity to ensure the anonymity of the parties to a swap? Should

this proposed provision apply to all asset classes? If so, why?

In what situations, if any, would it be appropriate for a

reporting party to report, for the purposes of public dissemination,

less specificity in the underlying asset(s) of a swap and how should

such underlying asset(s) be reported? Please provide specific examples.

Do commenters believe that it is appropriate to allow for

less specificity than the month and year (as described in appendix A to

proposed part 43) for the tenor of the swap? If not, why? If so, in

what situations would it be appropriate for a reporting party to

report, for the purposes of public dissemination, less specificity in

the tenor of a swap and how should the tenor be reported? Please

provide specific examples.

What specific parameters for reporting less specificity in

the underlying asset(s) and tenor of a swap should be applied to swaps

in order to protect the identities of the counterparties?

Should there be an indication to the public that a

description of the underlying asset or tenor lacks specificity in order

to protect the identities of the parties to the swap?

ii. Unique Product Identifiers

The Commission anticipates that unique product identifiers may

develop for various swap products in various markets. Proposed Sec.

43.4(f) provides that if a unique product identifier is developed and

it sufficiently describes the information in one or more of the data

fields for public dissemination in real-time, as described in appendix

A, then such unique product identifier may be used in lieu of such data

fields. If a swap does not have a unique product identifier, the swap

transaction and pricing data must contain all of the appropriate

product identification fields in appendix A to proposed part 43.\54\

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\54\ The Commission is considering the issue of unique product

identifiers in two forthcoming rulemakings under proposed parts 45

and 49.

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iii. Price-Forming Continuation Data

Proposed Sec. 43.4(g) requires any swap-specific event (including,

but not limited to, novations, swap unwinds, partial novations and

partial swap unwinds) that occurs during the life of a swap and affects

the price of such swap to be publicly disseminated (a ``price forming

continuation event''). The Commission does not believe that a price-

forming continuation event includes the scheduled expiration of a swap,

any anticipated interest rate adjustments, or any other event that does

not result in a change to the price that would otherwise not have been

known at the point of execution.

v. Reporting and Public Dissemination of Notional or Principal Amount

Proposed Sec. 43.4(h) and (i) provide rules for the public

reporting of the notional or principal amount for all swaps. Proposed

Sec. 43.4(h)(1) would require the reporting party to report the actual

notional size of any swap, including large notional swaps, to the

registered SDR that accepts and publicly disseminates such data.

Proposed Sec. 43.4(h)(2) would require a reporting party to transmit

the actual notional size

[[Page 76152]]

of any block trade to a swap market. Further, a swap market must

transmit the actual notional size for all swaps executed on or pursuant

to its rules to a real-time disseminator. The Commission believes that

the application of the rounding convention for notional or principal

size, described in proposed Sec. 43.4(i) should be done at the point

of public dissemination (as opposed to the point at which it is

reported to real-time disseminator) since this timing would provide for

a more efficient audit trail of the swap.

Proposed Sec. 43.4(i) provides that for all swaps the notional or

principal amount that must be reported pursuant to proposed Sec. 43.4

and appendix A to proposed part 43 should be rounded pursuant a

specific rounding convention. Specifically, proposed Sec. 43.4(i)

provides that if the notional or principal amount of a swap is:

Less than one million, round to the nearest 100 thousand;

Less than 50 million, but greater than one million, round

to the nearest million;

Less than 100 million, but greater than 50 million, round

to the nearest 5 million;

Less than 250 million, but greater than 100 million, round

to the nearest 10 million; and

Greater than 250 million, use ``250+''.

For example, if the notional size of a swap is $575 million, the

notional size that would be reported by a reporting party to a swap

market (assuming such swap is a block trade) would be $575 million. The

swap market would then report the notional amount of $575 million to a

real-time disseminator and the real-time disseminator would publicly

disseminate the notional amount for such block trade as ``$250+''. By

reporting the notional or principal transaction amount pursuant to the

rounding convention set forth in proposed Sec. 43.4(i), parties to

swaps, particularly those swaps that are of a large notional size,

would be given a greater amount of anonymity.

The Commission requests comment generally on all aspects of the

proposed rules relating to the reporting and public dissemination of

notional or principal amount. In addition, the Commission requests

specific comment on the following issues:

Do commenters agree with the proposed rounding convention

for public dissemination of large notional or principal amount provided

in proposed Sec. 43.4(i)? If not, why and provide alternatives?

Would this rounding convention be appropriate for all

swaps? For example, would this apply to swaps with an underlying asset

that is a physical commodity with a specific delivery point? If not,

why and what additional rounding convention may be needed?

Does the rounding convention for reporting notional and

principal transaction amounts in proposed Sec. 43.4(i) help to protect

the anonymity of the parties to a swap?

Should the actual notional or principal amount be publicly

disseminated at a later time?

Should registered SDRs publish the aggregate volume for

each category of swap instrument on a daily basis? If so, why? If not,

why not?

Would the daily publication of aggregate volume of swap

instruments be useful to market participants and the public?

v. Appendix A to Proposed Part 43

The Commission anticipates that real-time swap transaction and

pricing data may be publicly disseminated by multiple real-time

disseminators in the same asset class. In order to reduce the effects

of fragmentation and increase consistency both within an asset class

and between asset classes, the Commission is proposing that the

information in the data fields in appendix A to proposed part 43 be

publicly disseminated. In addition, the Commission is providing

proposed guidance on the order and format of reporting swap transaction

and pricing data.\55\ Additionally, the Commission believes that the

public dissemination of standardized data should reduce the search

costs to the public and market participants, increase consolidation of

real-time swap transaction and pricing data and promote post-trade

transparency and price discovery.\56\ While appendix A to proposed part

43 attempts to provide consistency in describing which real-time data

fields must be publicly disseminated, the Commission anticipates that

certain fields will be easier to standardize than other fields. For

example, it should be easy to standardize the format for an execution

time-stamp across all swap transactions; whereas it may be more

difficult to achieve standardization when describing an underlying

asset. The Commission anticipates that, as markets develop over time,

real-time disseminators and market participants may develop a form of

standardization for certain data fields in certain asset classes.

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\55\ In developing the Commission's proposal, Commission staff

considered technical advice reports from CESR in the context of

MiFID. In those reports, CESR concluded that market participants in

the equities markets are not delivering consolidated data to the

market in a standard format as a result of the ``inadequate quality

and consistency of the raw data itself, the inconsistencies in the

way in which firms report it for publication, and the lack of any

formal requirements to publish data through bodies with

responsibilities for monitoring the publication process.'' Committee

for European Securities Regulators, ``CESR Technical Advice to the

European Commission in the Context of the MiFID Review--Equity

Markets,'' CESR/10-802, July 29, 2010. Available at: http://

www.cesr-eu.org/popup2.php?id=7004. See also, ``CESR Technical

Advice to the European Commission in the Context of the MiFID Review

and Responses to the European Commission Request for Additional

Information'' (CESR/10-802, CESR/10-799, CESR/10-808, CESR/10-859),

July 29, 2010. Available at: http://www.cesr-eu.org/

popup2.php?id=7003.

\56\ See id.

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While real-time disseminators must disseminate swap transaction and

pricing data to the public, the reporting parties and swap markets must

provide the real-time disseminators with, at a minimum, the relevant

information needed to report the data fields described in appendix A to

proposed part 43. As discussed above, a real-time disseminator that is

a registered SDR may require a reporting party or a swap market to

report additional information to the information necessary for public

dissemination. Since all swap data must be sent to a registered SDR

pursuant to Section 2(a)(13)(G) of the CEA and forthcoming Commission

proposals, and an SDR may be a real-time disseminator, as previously

discussed, the proposed rules provide that a registered SDR that is a

real-time disseminator may require additional information to match the

real-time swap transaction and pricing data to data reported to the

registered SDR or confirm that parties to a swap have reported in a

timely manner pursuant to Section 2(a)(13)(F) of the CEA. Such

additional information requested by a registered SDR may include a

transaction identification code, the names of the parties to the swap,

or such other information as may be necessary.

As mentioned above, proposed Sec. 43.4(b) would require that the

information in any data field listed in appendix A to proposed part 43

to be publicly disseminated by a registered SDR or swap market through

a third-party service provider to the extent that such data field

captures a term of the reportable swap transaction. In many cases,

several data fields listed in appendix A to proposed part 43 will not

be applicable to a particular reportable swap transaction. To the

extent that a data field is not a term of the swap, such field need not

be reported and should be left blank. Appendix A to proposed part 43

also provides specific examples of how the reporting of a particular

field should look (both in form and in order) when disseminated to the

public.

[[Page 76153]]

Table A1 of appendix A to proposed part 43 provides that the

following data fields be reported to the public in real-time.

1. Cancellation. This data field reports the swap transaction and

pricing data that was incorrectly or erroneously reported and is

therefore being canceled. Any cancellations must also contain a date

stamp of the original swap, even if such date stamp was not originally

reported, followed by the full swap transaction and pricing data that

is being canceled (including the original time-stamp of execution). It

must be made clear to the public exactly which transaction is being

reported so that the public can easily disregard such swap transaction

and pricing data. A cancellation does not have to be corrected;

however, any corrections must first be canceled. Any such cancellation

must be done in accordance with proposed Sec. 43.3(f).

2. Correction. This data field reports the swap transaction and

pricing data that is being reported is a correction to real-time swap

transaction and pricing data that has been incorrectly publicly

disseminated. Any corrections must also contain a date stamp to

indicate the date of the initial swap that is being corrected, even if

such date stamp was not originally reported, and the time-stamp must

indicate the time of execution of the swap, not the time of the

correction. Providing the date and original time-stamp of the swap will

allow the public to easily replace the incorrect data. Any reportable

swap transaction for which there are corrections to real-time swap

transaction and pricing data must first be canceled prior to the

correction, so that the public is aware of which data is being

corrected. Any such correction must be done in accordance with proposed

Sec. 43.3(f).

3. Date stamp. This data field reports the date of execution of the

swap (if not the same day or a correction). This data field need only

be publicly disseminated if the swap that is being reported was

executed on a day other than the current day or if the swap transaction

or pricing data is a cancellation or correction to previously real-time

reported swap transaction and pricing data.

4. Execution time-stamp. This data field reports the time of

execution of the swap. The reporting party provides the execution time-

stamp of the swap. The execution time-stamp is the only time-stamp that

will be publicly disseminated.

5. Cleared or uncleared. This data field reports whether a swap is

cleared through a DCO, which may affect the price of the swap. For

cleared swaps, the specific DCO that clears the swap will not be

listed. In consideration of protecting the identities of the parties to

the swap, the Commission does not believe that the specific DCO through

which a swap is cleared must be reported to the public.

6. Indication of other price-affecting term (non-standardized

swaps). This data field reports whether there are other non-standard

terms to the swap that materially affect the price of the swap. This

indicator signals to market participants that there may be unreported

terms of the contract that affect the price. Any reporting of bespoke

swap transactions must include this indicator, since in these

transactions there are other terms or factors that materially affect

the price of the swap and are otherwise not included in the required

fields for real-time public reporting found elsewhere in appendix A to

proposed part 43.

7. Block trades and large notional swaps. This data field reports

whether the swap is a block trade or large notional swap. This data

field does not, however, make a distinction between block trades and

large notional swaps, since the execution venue data field will reveal

that information.

8. Execution venue. This data field reports where the swap was

executed. The reporting party must indicate whether the swap was

executed on a swap market or whether such swap is an off-facility swap.

This data field assists the public in understanding the other data

fields that are being reported. In consideration of protecting the

identities of the parties, the Commission does not believe that the

specific swap market on which the swap was executed need be publicly

disseminated. Similarly, the Commission does not believe that a

distinction need be made between those swaps executed on a SEF and

those executed on a DCM.

9. Swap instrument. This data field must be reported only if a

trade is a block trade or a large notional swap. Large notional swaps

must refer to an existing swap instrument that is posted by a

registered SDR and has an appropriate minimum block size associated

with such instrument. The parties to a swap must use the appropriate

minimum block size of the swap instrument when determining if a swap

constitutes a large notional swap. Swap markets, in setting the minimum

block trade size for a particular listed swap, must reference the

appropriate minimum block size for the category of swap instrument

within which the particular listed swap is included. A swap market will

set a minimum block trade size for a listed swap based on the

appropriate minimum block size for the relevant category of swap

instrument as calculated by the SDR. Proposed Sec. 43.5 provides rules

on block trades and large notional swaps, including the determination

of minimum block trade sizes. The reporting of the swap instrument data

field provides market participants and the public with an understanding

of the type of swap instrument for which a block trade is occurring.

The Commission believes that within each asset class there should

be certain criteria that are used to determine a category of swap

instrument. For example, swaps in the interest rate asset class may be

considered the same swap instrument if they are denominated in the same

major currency (or denominated in any non-major currency considered in

the aggregate) and if they have the same general tenor.\57\ With regard

to tenor, the Commission believes that tenors may be grouped into

ranges based on maturity date (e.g., short, intermediate and long). For

example, a single category of swap instrument may be ``U.S. dollar

interest rate swaps in a short maturity bucket, including swaps,

swaptions, inflation-linked swaps, etc. and all underlying reference

rates.'' Similarly, swaps in the ``other commodity'' asset class may be

considered the same swap instrument if they have the same underlying

asset, which generally would include all swaps whose economic terms

relate to the same underlying product (e.g., oil, natural gas, heating

oil, gold, etc.). In contrast, the Commission believes that for swaps

under the Commission's jurisdiction in the credit or equity asset

classes all swaps within each asset class can be considered to be the

same swap instrument. The swaps in the credit and equity asset class

will be broad-based or on indexes and such swaps can likely be grouped

together for purposes of determining the appropriate minimum block

size. In the currency asset class, swap instruments may be defined by

major currency pair, not by whether a major currency is one of the

currencies involved in the swap.

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\57\ Major currencies are those of the United States, Japan, the

United Kingdom, Canada, Australia, Switzerland, Sweden and the

European Monetary Union. See Sec. 15.03 of the Commissions

regulations.

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

The Commission requests comment generally about swap instruments.

In addition the Commission requests comment on the following specific

issues:

What criteria for each asset class should a registered SDR

consider in determining if a swap falls within a

[[Page 76154]]

particular grouping of swap instrument? Specifically, what criteria

should be used to classify a swap instrument and how do those criteria

differ by asset class? What particular considerations should apply to

swaps in interest rate, equity, credit, currency and other commodity

classes? Who should determine the categories of swap instrument?

How broad or narrow should the categories of swap

instruments be for each asset class? Do commenters believe that the

appropriate minimum block size should be determined based on particular

types of swap contracts and not on categories of swap instruments? If

so, why?

Should certain asset classes have additional or fewer

criteria in determining a swap instrument? If so, what asset classes

and what criteria?

Should a registered SDR apply any other criteria to the

other commodity asset class to decide whether a swap falls within a

particular type of swap instrument? How should the underlying asset be

grouped for the other commodity asset class?

Is it an appropriate approach to group tenors for swaps in

the interest rate asset class into ranges (e.g., short-term,

intermediate-term and long-term)? What should be the appropriate ranges

of tenor or maturity date for each of these ranges? Should there be

tenor ranges for other asset classes?

Are there any other currencies other than those described

in Sec. 15.03 of the Commissions regulations that the Commission

should consider as a major currency? If so, which currencies and why?

10. Start date. This data field reports the day on which the

contractual provisions of a swap commence or become effective. The

Commission recognizes that the start date may be different than the

execution date. The Commission also recognizes that the markets may

develop such that swaps traded on swap markets become standardized to

the point where the start date is embedded or understood by a unique

product identifier. For example, the start date for a particular swap

may always be the day following execution (i.e., T+1), and such

information could be captured by simply identifying the product through

a unique product identifier. If the markets evolve in such a manner,

then this data field may not be necessary to report for these swaps.

Nonetheless, the start date must always be provided in a manner that is

apparent to the public.

11. Asset class. This data field provides a general description of

the asset class for a swap, as defined in proposed Sec. 43.2(e). This

data field will allow the public to easily compare swaps within an

asset class and to easily identify the type of swap that is being

reported. Swaps within an asset class would have broadly similar

characteristics.

12. Sub-asset class for other commodity. This data field provides

greater detail as to the type of other commodity that is being

reported. The Commission realizes that there may be vast differences in

the types of products that fall under a particular asset class. For

this reason, a sub-asset class should be reported for other commodities

so that the public can easily understand similar types of swaps. Such

sub-asset classes may include, but are not limited to, specific energy,

weather, precious metals, other metals, agricultural commodities, etc.

13. Contract type. This data field reports the specific type of

swap that has been executed. This data field provides greater

transparency and price discovery to market participants and the public,

as knowledge of the contract type will allow the public to understand

the swap transaction and pricing data that is being reported. The

Commission has identified four broad categories of contracts that may

be entered into: swaps, swaptions, forwards and stand-alone options.

These categories may be further defined by the contract sub-type data

field discussed immediately below.

14. Contract sub-type. This data field provides more detail on the

type of contract specified in the contract type data field. The

Commission envisions that there will be many contract sub-types. Such

contract sub-types may include, for example, basis swaps, index swaps,

broad-based security swaps and basket swaps. Specific option types and

other information about options are covered by the options fields found

in Table A2 to appendix A to proposed part 43.

15. Price-forming continuation data. This data field describes

whether the information that is being reported is a price-affecting

event to an existing swap. Such events may include novations, partial

novations, swap unwinds and partial swap unwinds as well as other

price-forming events that may occur following the execution of the

swap. Such other events may also include amendments to the swap that

have a specific affect on the price of the swap.

16. Underlying asset 1 and underlying asset 2. These data fields

describe the specifics of the swap and help the public evaluate the

price of the swap transaction. It is likely that each leg of a swap

(i.e., the fixed and the variable) will have an underlying asset that

should be reported as a separate field. If there are more than two

underlying assets, all underlying assets should be real-time reported

and publicly disseminated. The Commission is not providing a specific

format for all underlying asset fields, but the description of each

underlying asset should be in a format that is commonly used by market

participants. The Commission encourages reporting parties and real-time

reporting disseminators to consult with one another to determine

consistent ways of reporting similar underlying assets. If a

standardized industry abbreviation exists for a particular underlying

asset, such abbreviation should be used to describe the underlying

asset. Whenever possible, alphabetical abbreviations should be used,

including roman numerals; provided, however the underlying asset must

be reasonably apparent to the public (e.g., six-month LIBOR could be

represented as VIL, 10-year Treasury could be represented as TX, etc.).

Further, if a unique product identifier adequately captures the

underlying asset, the underlying asset field may not need to be

reported.

17. Price notation and additional price notation. These data fields

report the price of the swap. These fields should include the total or

net of any premium that is associated with a party's requirements under

the swap. For example, if Party A's contractual requirements are linked

to a 10-year Treasury note and Party B's requirements are linked to

three-month LIBOR, the price notation should be the rate of 10-year

Treasury note compared to three-month LIBOR (e.g., 2.5).

The Commission recognizes that a number of different pricing

conventions currently exist across swap transactions and even among

market participants for similar swap transactions. Nevertheless, the

Commission believes that standardizing of pricing conventions will

result in greater price transparency. In order to promote such

standardization, it becomes important to define what ``pricing'' means

for swaps. Notional or principal amount is the amount on which payment

rates are calculated and is not the actual amount or units exchanged in

most cases. Payments under the swap are based on what the market refers

to as ``legs'' and what the Commission refers to as ``underlying

assets'' in this proposed rulemaking. The additional price notation

would be necessary in such instances where there are multiple premiums

yields, spreads or rates are characteristics of the swap. It is for

this reason that the proposed rules require

[[Page 76155]]

the additional price notation to include, inter alia, front-end

payments, back-end payments, mid-cycle flat payments, collateral and

margin. All of the elements to additional price notation must be

represented in this field as a single number, relative to the

difference in payments between the underlying assets of the swap.

In the example above, if Party A's requirement is tied to the 10-

year Treasury note yield and Party B's requirement is linked to three-

month LIBOR and Party B is also required to post a back-end payment of

$100,000, then the price notation would be the rate of 10-year Treasury

note compared to three-month LIBOR (e.g., 2.5). The additional price

notation might be calculated to be +0.05, because in this example, the

net present value of the back-end payment of $100,000, as applied to

the exchange of payments within the swap, would be equal to +0.05.

These two data fields provide the public and market participants with

an easily accessible and uniform means of understanding the price at

which the parties to a swap have reached an agreement regarding the

swap's payment streams.

18. Unique product identifier. This data field, if available,

describes a standardized swap. If a unique product identifier is

available for a particular product, it may be reported in lieu of

reporting other identifying fields including, but not limited to, the

underlying asset, asset class, contract type, contract sub-type and

start date, so long as such fields are adequately described and

apparent to the public. The Commission believes that the markets will

evolve to a point where the use of such unique product identifiers will

increase transparency and promote price discovery across real-time

disseminators. The Commission envisions unique product identifiers will

be uniform across different swap markets.

19. Notional currency 1 and notional currency 2. This data field is

needed if the notional or principal amounts are referenced in terms of

a currency. The currency field may be reported in a commonly-accepted

code. For example, U.S. dollars may be reported with the ISO 4217

currency code ``USD''.\58\ The notional currency 1 field should refer

to the notional or principal amount 1 field, while the notional

currency 2 field, if applicable, should refer to the notional or

principal amount 2 field. If there are more than two notional or

principal amounts that require a notional currency field, then these

fields should be reported in a similar manner.

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

\58\ The International Organization for Standardization

(``ISO'') provides a list of currency and funds names that are

represented by both a three-letter alphabetical and a three-number

numerical code (the ``ISO 4217'' code list), which is available at:

http://www.iso.org/iso/support/currency_codes_list-1.htm.

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

20. Notional or principal amount 1 and notional or principal amount

2. This data field is needed to identify the size or amount of the swap

transaction. The notional amount may be reported in a currency and if

so, the currency must be disclosed and made easily identifiable to the

public. Such disclosure can be done by reporting the notional currency

field with respect to the notional amount that requires such

information. If a principal amount is in units, then a currency

description does not need to be reported. Appendix A to proposed part

43 contemplates the potential for two or more notional or principal

amounts. When a swap has more than two notional or principal amounts,

then all such amounts must be reported and made easily identifiable by

reporting parties and real-time reporting disseminators. The notional

or principal amount for swaps should be reported pursuant to proposed

Sec. 43.4(h) and (i). Each notional or principal amount (if there is

more than one) should be labeled with a number (e.g., 1, 2, 3, etc.),

such that the number corresponds to the underlying asset for which the

notional or principal amount is applicable.

21. Payment frequency 1 and payment frequency 2. This data field is

needed to assist in understanding the price of a swap. It represents

the frequency at which payments will be made for a party's contractual

requirements under a swap. It is possible that the payment frequency

may be the same for both parties to a swap; however, the payment

frequency also may be different. If there is a difference, the payment

frequencies must be reported for each requirement under the swap. The

format for payment frequency should be consistent and may be reported

as a numerical character followed by a letter.\59\ For example, if

payments are to be made every two weeks, then ``2W'' may be reported in

this field; if payments are to be made every year, then ``1Y'' may be

reported, etc. Each payment frequency (if there is more than one)

should be labeled with a number (e.g., 1, 2, 3, etc.), such that the

number corresponds to the underlying asset for which the payment

frequency is applicable.

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\59\ Such period descriptions may be described as follows: daily

(D), weekly (W), monthly (M) and yearly (Y).

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

22. Reset frequency 1 and reset frequency 2. This data field is

needed to assist in understanding the price of a swap. It represents

the frequency that a price for an underlying asset may be adjusted. It

is possible that there is no reset frequency, that the reset frequency

is the same for both underlying assets or that the reset is different

for both underlying assets. If different, the reset frequencies must be

reported for each underlying asset. The format for reset frequency must

be consistent and may be a numerical character followed by a

letter.\60\ For example, if adjustments are to be made every two weeks,

then ``2W'' may be reported in this field, if adjustments are to be

made every year, then ``1Y'' may be reported, etc. Each reset frequency

(if there is more than one) should be labeled with a number (e.g., 1,

2, 3, etc.), such that the number corresponds to the underlying asset

for which the reset frequency is applicable.

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

\60\ See id.

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

23. Tenor. This data field is needed to describe the duration of a

swap and when a swap will terminate, mature or end. To protect the

anonymity of the parties to a swap, the tenor field should only be

reported as the month and year that the swap terminates, matures or

ends. Such description may use the three character alpha-numerical

format that is used in describing futures contracts.\61\ For example,

if a swap ends on March 15, 2020, the tenor may be reported as ``H20''.

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\61\ Futures month symbols are as follows: January (F), February

(G), March (H), April (J), May (K), June (M), July (N), August (Q),

September (U), October (V), November (X) and December (Z).

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Table A2 of appendix A to proposed part 43 provides the following

data fields to be publicly disseminated in real-time for options,

swaptions and swaps with embedded options, if applicable to a swap. If

a swap has more than one embedded option or swaption provision, then

all such embedded options or swaptions should be real-time reported to

the public in the same manner.

1. Embedded option on swap. This data field is needed to describe

whether the data listed in the option fields is an option that is

embedded in the price of the swap. Proposed Sec. 43.2(i) defines

``embedded option'' as any right, but not an obligation, provided to

one party of a swap by the other party to the same swap that provides

the party in possession of the option with the ability to change any

one or more of the economic terms of the swap as they were previously

established at confirmation (or were in effect on the start date). By

requiring a separate field for embedded options on swaps, market

participants and the public will be able to compare prices across the

same or

[[Page 76156]]

similar swaps. The Commission believes that requiring this field will

increase transparency and price discovery across the swap markets, as

it will allow for the easy comparison of price by market participants

and the public. Further, the Commission does not wish to see market

participants wasting resources to try to avoid transparency by adding

embedded options to otherwise standardized swap contracts. If the

Commission did not require separate reporting of the embedded option

field, it would be possible for market participants to attach worthless

options to a swap in order to avoid real-time public reporting the swap

in the same format as a standardized swap that does not have an

embedded option.

2. Option strike price. This data field reports the level or price

at which a party to a swap may exercise an option. The Commission

recognizes that for some option types, such as collars, strangles and

condors, it will be necessary to report two or more prices in this

field. This data field is the first field that would be reported for

options and real-time disseminators may choose to place an ``O'' prior

to the strike price. After the ``O'', the level or price should follow

immediately thereafter. For example, an option or swaption with a

strike price of $25 should be real-time publicly reported as ``O25''.

3. Option type. This data field reports the type of option. The

option type is important because it clarifies how the buying or selling

of the asset is to be transacted between two parties. To promote

standardization, this data field should be reported from the

perspective of the party to the swap associated with underlying asset

1. The Commission recognizes that there are several different types of

options, and has tried to identify some of the more common option types

and their suggested two-character alphabetical descriptors in Table A2

of appendix A to proposed part 43. The Commission intends for the list

of options in Table A2 to promote consistency and transparency across

reporting parties and real-time disseminators. Some examples of option

types include caps, collars, floors, puts, calls, pay fixed versus

floating, receive fixed versus floating, straddles, strangles and

knock-outs.

4. Option family. This data field reports the family associated

with the option. The option family is important because it identifies

the period of time over which an option may be executed. The Commission

recognizes that there are several different types of option families,

and has tried to identify some of the more common option families and

provided suggested two-character alphabetical descriptors in Table A2

of appendix A to proposed part 43. The Commission intends for the list

in Table A2 to promote consistency and transparency across reporting

parties and real-time disseminators. Some examples of option families

include American, Bermudan, European and Asian.

5. Option currency. This data field is needed to explain the

currency for the option that is being reported. If applicable, the

option currency field shall refer to both the option premium field and

the option strike price.

6. Option premium. This data field reports the purchase price for

the option at the time of execution of the swap. This number represents

the total additional cost of the option as a numerical value and is

broken out separately from the price notation and additional price

notation fields to allow for an easier comparison of a swap with an

option to similar swaps that do not include an option.

7. Option lockout period. This data field reports the time at which

an option first can be exercised and thus, assist them in evaluating

the price of an option. The option lockout date should be reported in

the year and month format used in futures markets.\62\ This field most

often will be needed for European style options and other options where

the start date for the requirements to a swap with an embedded option

may be different than the date that an embedded option is available for

execution. The option lockout period should be reported in the year and

month format used in futures.

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

\62\ See id.

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

8. Option expiration. This data field reports when an option can no

longer be exercised. This data field will assist the public and market

participants in evaluating the price of an option. In most cases, this

data field can be omitted, as a standard option would expire at the

same time as the swap contract to which it is linked. The option

expiration should be reported in the year and month format used in

futures markets.

v. Examples To Illustrate the Public Reporting of Real-Time Swap

Transaction and Pricing Data

The Commission envisions that the reporting of the data fields in

appendix A to proposed part 43 may eventually be reported in the form

of a consolidated ticker, particularly for the more standardized swaps

that are traded on swap markets. Additionally, the Commission believes

that when unique product identifiers emerge they will be publicly

disseminated, increase uniformity and transparency across real-time

disseminators and ultimately lead to greater transparency and price

discovery. Below, the Commission has set out two examples of how real-

time public reporting of swap transaction and pricing data may evolve

as consolidation and standardization develops in particular asset

classes and markets.

Example 1

On Friday, February 4, 2011, Bank X enters into a new plain vanilla

10-year fixed versus floating interest rate swap with Bank Y, for a

notional amount of $10 million U.S. dollars. The swap is scheduled to

start on Tuesday, February 8, 2011 (note: start dates are usually 2

business days later for interest rate swaps). Bank X is the payer of

the fixed leg of the swap and is obligated to pay a fixed rate of 2.53%

on the notional amount for the ten-year tenor of the swap. Bank Y is

the payer of the floating leg of the swap and is obligated to pay the

prevailing three-month LIBOR on the $10 million notional amount. The

first LIBOR payment will be based upon the three-month LIBOR rate for

February 4, 2011 with the rate reset on a quarterly basis going

forward. This interest rate swap is plain vanilla with both banks using

the same day count convention, payment currency and notional value for

both of the underlying assets to the swap.

Bank X and Bank Y have no additional premiums or payments under the

terms of the swap. In this example, the reset and payment frequency for

the fixed-rate are semi-annual. The reset and payment frequency for the

floating rate (i.e., three-month LIBOR) are quarterly. The parties'

requirements under the swap for both the fixed leg and floating leg are

scheduled to mature on Monday, February 8, 2021. Bank X and Bank Y are

both members in good standing with a SEF named ``Xeqution Co.'' and use

a DCO named ``ClearitAll''.

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

Field Description

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

Execution time-stamp...................... 16:20:47

Cleared or uncleared...................... C (note: the name of DCO is

not reported)

Execution Venue........................... SWM (note: the name of SEF

is not reported)

Start date................................ 08-02-11

Asset class............................... IR

Contract type............................. S-

[[Page 76157]]

Underlying asset 1........................ TX (note: TX represents the

reference rate of Treasury

10 year, which is the fixed

rate)

Underlying asset 2........................ IIIL (note: IIIL represents

3 month LIBOR, which is the

floating rate)

Notional currency 1....................... USD

Notional or principal amount 1............ 10M (note: this may be

reported as ``10,000,000'')

Pricing Notation.......................... 2.53

Payment frequency 1....................... 6M

Payment frequency 2....................... 3M

Reset frequency 1......................... 6M

Reset frequency 2......................... 3M

Tenor..................................... G21 (note: actual day is not

reported)

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

The Commission believes that as swaps become more standardized,

market participants and real-time disseminators may develop a

nomenclature that combines data fields in an easy-to-follow manner,

ensuring that all the relevant information in appendix A to this

proposed part 43 is publicly disseminated. For example, the swap in the

above example may be displayed as follows:

16:20:47 IRS 10 TXIIIL 2.53 @0 G21.

In the illustration above, the symbol ``C'' is not included,

because as the markets develop, the majority of standardized swaps will

be cleared through DCOs and an indication of ``U'' would only be

necessary for the reporting of uncleared swaps. The term ``SWM'' is

also omitted since it could be assumed by market participants and the

public that the swap has taken place on a swap market. Such an

indication would only be needed if the swap was done off-facility

pursuant to the non-financial end-user exception from the mandatory

clearing requirement under Section 2(h)(7) of the CEA. The start date

is not reported because in this illustration it is assumed for a swap

of ``TXIIIL'' the start date is always two business days after the date

of execution (i.e., T+2). The term ``IRS'' would replace the separate

data fields for asset class ``IR'' and contract type ``S-'' as the

standard format once market participants have become accustomed to

reading data on a consolidated tape for swaps. The terms ``USD'' and

``M'' in 10,000,000 are also dropped because in this illustration the

market would have developed in such a manner as to understand that the

standard trade is done in U.S. dollars and in round lots of one million

or in this case ``10''. Payment frequency and reset frequency would

also be excluded for both of the underlying assets because the symbol

``TXIIIL'' now represents a plain vanilla interest rate swap where

payment frequency and reset frequency are standardized terms of the

swap transaction. The number ``2.53'' for price notation remains but in

some cases, such as a basis swap, this field may be omitted as the

market develops. The symbol ``@0'' is used because in some cases front-

end, back-end, margin, collateral or other payments that are not

included in the terms of the swap must be reported as an additional

price notation characteristic. In this example, there is no additional

price notation that must be reported. The symbol ``G21'' is still

reported to indicate that the swap matures (i.e., terminates) in

February 2016.

Example 2:

On Friday, February 4, 2011, Bank X, once again enters into a plain

vanilla 10-year fixed versus floating interest rate swap with Bank Y

for a notional amount of $10 million U.S. dollars. The swap is

scheduled to start on Tuesday, February 8, 2011 (Note: start dates are

usually 2 business days later). Bank X is payer of the fixed leg of the

swap and is obligated to pay a fixed rate of 2.53% on the notional

amount for the ten-year tenor of the swap. Bank Y is the payer of the

floating leg of the swap and is obligated to pay the prevailing three-

month LIBOR on the $10 million notional amount. To illustrate an

exception from the plain vanilla swap, the first LIBOR payment in this

example is based on the three-month LIBOR rate for February 4, 2011

with a weekly rate reset, instead of the normal quarterly rate reset.

Both parties have agreed to use the same day count convention, payment

currency and notional amount for both of the underlying assets to the

swap.

Bank X and Bank Y have additional payments to be made between the

two parties under the terms of the swap. Bank X is required to deliver

a front-end payment of $500,000 U.S. dollars to Bank Y, which is

represented by an increase to the fixed-rate payer's requirement of

``+0.07'' and reported in the additional price notation data field. For

the sake of clarity, this additional price notation data field should

be in the same format as the price notation field and be displayed as

an addition or subtraction to the fixed-rate payer's rate under the

swap.

In order for the parties to protect themselves from a possible

increase in interest rates, Bank Y purchases a one-year pay fixed

versus floating swaption with a strike rate of 2.53% to pay fixed for

9-years to Bank X (i.e., through the maturity of the swap). This

swaption effectively will terminate the original swap with Bank X, and

in this example, we can assume that the cost of the swaption is

$100,000. This swaption might also be listed as an adjustment to the

fixed rate that Bank Y would receive from Bank X in the initial swap if

the payments were not made outright, but were blended into the initial

fixed rate. In this example, this might be represented by subtracting

four basis points or ``-0.04''.

The reset and payment frequency for the fixed rate is semi-annual

(every six months), while the reset and payment frequency for the

three-month LIBOR is weekly, upon the request of the variable rate

payer. The parties' requirements under the swap are scheduled to mature

on Monday, February 8, 2021. Bank X and Bank Y are both members in good

standing with a SEF named ``Xeqution Co.'' and use a DCO named

``ClearitAll''.

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

Field Description

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

Execution time-stamp...................... 16:20:47

Cleared or uncleared...................... C (note: the name of DCO is

not reported)

Execution Venue........................... SWM (note: the name of SEF

is not reported)

Start date................................ 08-02-11

Asset class............................... IR

Contract type............................. S-

Underlying asset 1........................ TX (note: TX represents

Treasury 10 year)

Underlying asset 2........................ IIIL (note: IIIL represents

3 month LIBOR)

Price Notation............................ 2.53

Additional price notation................. +0.07

Notional currency 1....................... USD

Notional or principal amount 1............ 10M (note: this may be

reported as ``10,000,000'')

Payment frequency 1....................... 6M

Payment frequency 2....................... 1W

Reset frequency 1......................... 6M

Reset frequency 2......................... 1W

Tenor..................................... G21 (note: actual day is not

reported)

Embedded option on swap................... EMBED1

Option Strike Price....................... O2.53

Option Type............................... PF (note: this is always

reported from the point of

view of the variable leg)

Option Family............................. EU (note: this is a European

style option)

Option currency........................... USD

Option premium............................ -.04 (note: this may be

reported as ``$100,000''

depending on market

conventions)

[[Page 76158]]

Option lockout period..................... G12 (note: actual day is not

reported)

Option expiration......................... G21 (note: actual day is not

reported)

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The Commission believes that as swaps become more standardized,

market participants or real-time disseminators may develop a

nomenclature that combines data fields in an easy-to-follow manner,

while ensuring that all the relevant information in appendix A to this

proposed part 43 is publicly disseminated. Even swaps with one or more

non-standard terms may still be reported in a consolidated format. For

example, the swap in the example above may be displayed as follows:

16:20:47 IRS 10 TXIIIL S/1W 2.53 @0.07 G21 EMBED1 EU [email protected] LOG12

In the illustration above, the symbol ``C'' is not included because

as the markets develop the majority of standardized swaps will be

cleared through DCOs, and an indication (e.g., the symbol ``U'') would

only be necessary for the reporting of uncleared swaps. The term

``SWM'' is also omitted since, it could be assumed by market

participants and the public that the swap has taken place on a swap

market. Such indication would only be necessary if the swap was done

off-facility, pursuant to the non-financial end-user exception from the

mandatory clearing requirement under Section 2(h)(7) of the CEA. The

start date not reported for this swap because in this illustration, it

is assumed that for a swap of ``TXIIIL'' the start date is always two

business days after the date of execution (i.e., T+2). The term ``IRS''

would replace the separate data fields for asset class ``IR'' and

contract type ``S-'' as the standard format once market participants

have come accustomed reading data on a consolidated tape for swaps. The

terms ``USD'' and ``M'' in 10,000,000 are also dropped because in this

illustration the market has developed in such manner as to understand

that the standard trade is done in U.S. dollars and in round lots of

one million or in this case ``10''.

The Commission anticipates that in order for the price notation and

additional price notation data fields to be of the greatest value to

market participants and the public, some form of standardization likely

will develop for the purposes of real-time public reporting and market

participants consistently use these data fields.\63\ An example of the

evolution of standardization is shown in the illustration above where

price notation is displayed as the number ``2.53'', which is equal to

the rates associated with payments on each leg at execution. Each leg

of the swap's present value of future payments would be equal to zero

(i.e., a par swap's value). The symbol ``@0.07'' is listed in the

illustration above because the present value of the front-end payment

is the equivalent of a higher interest payment of 0.07 over the life of

the swap for the party that is paying the fixed rate at execution.

Payment frequency and reset frequency have been represented with an

``S/1W'' for the underlying assets because the symbol ``TXIIIL''

represents a plain vanilla interest rate swap where payment frequency

and reset frequency are standardized terms of the swap transaction. In

the illustration above, however, only the Treasury leg is standard,

while the floating LIBOR leg is set to weekly versus its standard

quarterly format. The symbol ``G21'' is reported to indicate that the

requirements under the swap terminate in February 2021. In this

illustration, ``TXIIIL'' is still used as a symbol that lets

participants know several of the previously required data fields are

standardized and combined and therefore do not need to be displayed

separately for real-time public reporting, while those fields that are

non-standard are simply broken out and reported separately in a more

traditional long format.

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\63\ It is important to note that such standards are not

intended to change the form in which market participants use to

quote or construct swaps.

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The interest rate swap in this illustration contains an embedded

option that is broken out so that data fields can be easily comparable

across a wider variety of similar, but not identical swaps, thus

promoting post-trade price transparency. The term ``EMBED1'' indicates

that this interest rate swap has an embedded option and the pricing

information for such embedded option follows on the real-time public

reporting consolidated tape. The symbol ``2.53PF'' replaces the

separate data fields for option strike price ``O2.53'' and option type

``PF''. Option family ``EU'' is included in the consolidated tape to

indicate the family of the embedded option. The option currency ``USD''

is left off of this transaction because it is assumed for a ``TXIIIL''

swap, the option currency for any embedded options would be ``USD'',

unless broken out and reported individually. The symbol ``LOG12'' is

used instead of ``G12'' to indicate the lock out period to provide

clarity. The option expiration of ``G21'' is omitted because the

embedded option is assumed to be in a standard form and as such would

be set to expire at the same time as the swap itself. If such embedded

option was not in standard form, then the option expiration field would

have been reported as an additional data field.

The Commission requests comment on all aspects of the data fields

in appendix A to proposed part 43 that would be required to be reported

in real-time under this proposal. In addition, the Commission requests

specific comment on the following issues:

Do commenters agree with the proposed data fields that

would be required to be reported in real-time? If not, what additional

data fields should be reported and why? How would public dissemination

of these data fields enhance transparency and price discovery?

Which data fields, if any, should not be required to be

publicly disseminated in real-time and why?

Would public dissemination of certain data fields reduce

market liquidity? \64\ If so, why?

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\64\ Section 2(a)(13)(E)(iv) requires that the Commission ``take

into account whether the public disclosure will materially reduce

market liquidity.''

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Should the portion of the amount reported in the

additional price notation data field that relates to the

creditworthiness of a counterparty be extracted and reported as a

separate data field? If so, why? Should the creditworthiness of a

counterparty be reported in some other way?

Do commenters agree that tenure should only be reported

with month and year? Is this a useful method for protecting the

anonymity of the counterparties? Does this provide an adequate level of

transparency?

Do commenters agree with the proposed method for real-time

reporting and public dissemination of non-standardized swaps? Should

the ``indication of other price affecting term'' data field contain

more specificity as to what type of term is affecting the price? If so,

what additional information should be included and how should it be

reported?

Would public dissemination of information concerning non-

standardized swaps materially reduce market liquidity? If so, why? \65\

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\65\ See Section 2(a)(13)(E)(iv).

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Under the proposal, the swap instrument data field would

only be required for block trades and large notional swaps, should this

data field be reported for all swaps? If so, why?

[[Page 76159]]

Would information concerning the type of counterparties

that enter into a swap enhance transparency and price discovery (e.g.,

whether the counterparty is a swap dealer, MSP, or not)? If so, why?

Would separately reporting embedded option information

enhance price discovery and transparency? If not, why?

Do proposed Sec. 43.4 and appendix A to proposed part 43

provide adequate guidance with respect to the information that must be

reported? If not, what additional guidance do commenters believe is

necessary?

Do commenters agree with the reporting of price-affecting

continuation events? Should data relating to these events be publicly

disseminated in real-time in the same way as new swap transactions?

What additional types of transactions, if any, would be price-affecting

continuation events that should be reported and publicly disseminated

in real-time?

What would be the costs of reporting and publicly

disseminating the proposed data fields? What would be the benefits?

Please provide examples, if possible.

5. Proposed Section 43.5--Block Trades and Large Notional Swaps

Sections 2(a)(13)(E)(ii) and (iii) of the CEA authorize the

Commission to prescribe rules ``to specify the criteria for determining

what constitutes a large notional swap transaction (block trade) for

particular markets and contracts'' and ``to specify the appropriate

time delay for reporting large notional swap transactions (block

trades) to the public.'' As discussed in the Background Section above,

while Section 2(a)(13)(E) of the CEA specifically refers to the swaps

described only in Sections 2(a)(13)(C)(i) and 2(a)(13)(C)(ii) of the

CEA (i.e., clearable swaps, including swaps that are exempt from

clearing), the Commission believes that it is appropriate to consider

the four criteria in Section 2(a)(13)(E) of the CEA for all four

categories of swaps described in Section 2(a)(13)(C) of the CEA.\66\

Therefore, proposed Sec. 43.5 establishes: (1) the procedures for

determining the appropriate minimum sizes for block trades and large

notional swaps; and (2) the appropriate time delays for the reporting

of block trades and large notional swaps.

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\66\ Pursuant to the Commission's authority under Sections

2(a)(13)(B) and 2(a)(13)(E)(iii) of the CEA.

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In developing the proposed rules with respect to block trades and

large notional swaps, the Commission considered its guidance with

respect to block trades in the futures markets. Additionally, the

Commission considered the treatment of block trades in other markets

(both foreign and domestic), such as those for equities, options and

corporate bonds. Further, the Commission considered the treatment and

effects of swaps with large notional or principal amounts in the

current OTC swap markets. The Commission is not aware of any academic

literature that offers empirical evidence to support the claim of

impaired liquidity given greater transparency or how block trades on

swaps or large notional swaps are affected by a post-trade transparency

regime.\67\

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\67\ The Commission will continue to analyze and study the

effects of increased transparency on post-trade liquidity,

particularly in the context of block trades on swaps and large

notional swaps. The Commission expects that, as post-trade

transparency is implemented in the context of the Dodd-Frank Act,

new data will come to light that will inform the discussion and

could cause subsequent revision of the proposed rules.

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The Commission recognizes that the term ``block trade'' has

different meanings in different markets. For example, in the futures

markets, a block trade is a permissible, privately negotiated

transaction that equals or exceeds a DCM's specified minimum quantity

of futures or options contracts and is executed away from the DCM's

centralized market but pursuant to its rules.\68\ Block trades are

large-sized transactions that would cause a significant price impact if

required to be executed on the DCM's centralized market. In contrast,

the Commission understands, through discussions with market

participants, that in the swaps markets, asset managers that execute

OTC swaps and then later distribute or allocate the swap to various

clients or funds may refer to such bunched transactions as block

trades. To clarify the Commission's view of block trades on swaps, the

proposed rules include definitions for both ``block trade'' and ``large

notional swap''.\69\

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\68\ See, e.g., CME Rulebook, Rule 526 (``Block Trades'').

Available at: http://www.cmegroup.com/rulebook/CME/index.html; ICE

Futures U.S. Rulebook, Rule 4.31 (``Block Trading''). Available at:

https://www.theice.com/Rulebook.shtml?futuresUSRulebook=.

\69\ The legislative history to the Dodd-Frank Act provides the

following statement by Senate Agriculture Committee Chairwoman

Blanche Lincoln regarding block trades and large notional swaps: ``I

would like to specifically note the treatment of `block trades' or

`large notional' swap transactions. Block trades, which are

transactions involving a very large number of shares or dollar

amount of a particular security or commodity and which transactions

could move the market price for the security or contract, are very

common in the securities and futures markets. Block trades, which

are normally arranged privately, off exchange, are subject to

certain minimum size requirements and time delayed reporting * *

*.'' 156 Cong. Rec. S5921 (daily ed. July 15, 2010) (statement of

Sen. Blanche Lincoln).

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i. Parties to a Block Trade or Large Notional Swap

Proposed Sec. 43.5(b)(1) provides that any party to a block trade

or large notional swap is required to be an eligible contract

participant (``ECP'') as that term is defined in Section 1(a)(18) of

the CEA. The ECP requirement relies on Section 2(e) of the CEA, which

provides that ``[i]t shall be unlawful for any person, other than an

eligible contract participant, to enter into a swap unless the swap is

entered into on, or subject to the rules of, a board of trade

designated as a contract market under section 5.'' The parties to any

block trade, pursuant to a swap market's rules, and any large notional

swap executed off-facility, must be ECPs. However, the proposed rule

makes clear that a registered DCM may allow commodity trading advisors

acting in an asset managerial capacity and investment advisors that

have over $25 million in assets under management, including foreign

persons performing equivalent roles, to carry out block trades on a

registered DCM for non-ECP customers. Any such person may not conduct a

trade on behalf of a customer unless the person receives instruction or

prior consent to do so.

Proposed Sec. 43.5(b)(2) requires that parties to a swap that is

equal to or greater than the minimum block trade size must elect to be

treated as a block trade and that the swap market must provide the

real-time disseminator with such election. The block trade election

allows parties to a swap to calculate the impact of executing the

transaction bilaterally and delaying public dissemination versus

executing the transaction on a swap market's trading system or platform

where there would be no delay in the dissemination of the swap's

transaction and pricing data. Proposed Sec. 45.5(b)(2) also requires

that the parties to a swap that qualifies as a large notional swap must

elect to be treated as a large notional swap and the reporting party

must provide the real-time disseminator with such election.\70\

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\70\ By way of comparison, a party to a futures contract may

elect not to treat the transaction as a block trade. By not electing

to treat the transaction as a block trade, the party is choosing to

place its order on the DCM's centralized market. The party who makes

such an election may believe that it will receive a better price in

settling its trade immediately, on the DCM's centralized market,

rather than bilaterally negotiating the transaction and delaying the

reporting of the trade.

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ii. Block Trades on Swaps

Proposed Sec. 43.2(f) and (l) define ``block trade'' and ``large

notional swap''

[[Page 76160]]

as separate concepts to distinguish the difference between large

notional or principal sized trades executed pursuant to a swap market's

rules (block trades) and off-facility swaps that are not subject to a

swap market's rules but have very large notional or principal sizes

(large notional swaps). Proposed Sec. 43.2(f) defines a block trade as

a swap transaction that: (1) Involves a swap that is made available for

trading or execution on a swap market; (2) occurs off the swap market's

trading system or platform pursuant to the swap market's rules and

procedures; (3) is consistent with the minimum block trade size

requirements set forth in proposed Sec. 43.5; and (4) is reported in

accordance with the swap market's rules and procedures and subject to

the appropriate time delay set forth in proposed Sec. 43.5.\71\

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\71\ Both block trades and large notional swaps would only apply

to new events (i.e., not price affecting continuation events).

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

Proposed Sec. 43.5(c)(2) provides that a reporting party for any

block trade must report the block trade transaction and pricing data

pursuant to the rules of the swap market that makes that swap available

for trading. Such reporting must occur as soon as technologically

practicable after execution of the block trade and pursuant to the

rules of the swap market.

Proposed Sec. 43.5(c)(3) would require the swap market that

accepts the block trade to immediately send the block trade transaction

and pricing data to a real-time disseminator, which shall not publicly

disseminate the swap transaction and pricing data before the expiration

of the appropriate time delay described in proposed Sec. 43.5(k)

discussed below.

The Commission requests comment generally on all aspects of the

proposed rules regarding block trades. In addition, the Commission

requests specific comment on the following issues:

Do commenters agree with the proposed definition of

``block trade''? If not, why?

Do commenters believe that the Commission should set a

maximum time frame in which a reporting party must report a block trade

to a swap market, or should such time period be defined pursuant to the

rules of the respective swap markets?

iii. Large Notional Swaps

Proposed Sec. 43.2(l) defines a large notional swap as a swap that

(1) is not available for trading or execution on a swap market; (2) is

consistent with the appropriate size requirements for large notional

swaps set forth in proposed Sec. 43.5; and (3) is reported in

accordance with the appropriate time delay requirements set forth in

proposed Sec. 43.5. Similar to the proposed reporting requirements for

block trades, the reporting party to a large notional swap must report

to a real-time disseminator as soon as technologically practicable.

Such large notional swaps may include: (1) Swaps that would have been

subject to mandatory clearing, and for which an end-user relies on the

exception from the mandatory clearing requirement in Section 2(h)(7) of

the CEA; \72\ or (2) other off-facility swaps that are not subject to

mandatory clearing but have large notional amounts (which would include

non-standardized swaps). The proposed rules provide that if a swap is

sufficiently large in notional or principal amount, such swap could be

considered a large notional swap and therefore may be eligible for the

same time delay in real-time public reporting as block trades.

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\72\ As described below, swaps that rely on the exception in

Section 2(h)(7) of the CEA, although large notional swaps, are

subject to the same time delay as block trades.

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Proposed Sec. 43.5(d) requires the registered SDR that has

received the swap transaction and pricing data for a large notional

swap not to publicly disseminate such data before the expiration of the

appropriate time delay described in proposed Sec. 43.5(k).

Proposed Sec. 43.5(e) provides that an off-facility swap where

neither counterparty is a swap dealer or an MSP (e.g., a swap between

two end-users) may be eligible to be a large notional swap. Although

the parties to these swaps will not be registrants with the Commission,

this provision specifies that such swaps (i.e., end-user to end-user

transactions) will be treated the same as swaps in which a swap dealer

or MSP is a party.

The Commission requests comment generally on all aspects of the

proposed rules regarding large notional swaps. In addition, the

Commission requests specific comment on the following issues:

Do commenters agree with the proposed definition of

``large notional swap''? If not, why?

Do commenters agree that off-facility swaps in which

neither party is a swap dealer or an MSP be eligible to be treated as

large notional swaps? If not, why?

iv. Time-Stamp and Reporting Requirements for Block Trades and Large

Notional Swaps

In addition to the execution time-stamp requirement under proposed

Sec. 43.4 and appendix A to proposed part 43, proposed Sec. 43.5(f)

would require a swap market and registered SDR that accepts and

publicly disseminates swap transaction and pricing data in real-time to

have additional time-stamp requirements with respect to block trades

and large notional swaps. Proposed Sec. 43.5(f)(1) would require swap

markets to time-stamp swap transaction and pricing data with the date

and time to the nearest second (1) when such swap market receives the

data from a reporting party and (2) when a swap market transmits such

data to a real-time disseminator. Proposed Sec. 45.5(f)(2) would

require registered SDRs that accept and publicly disseminate swap

transaction and pricing data in real-time to time-stamp such data with

the date and time to the nearest second when (1) such registered SDR

receives such swap transaction and pricing data from a swap market or

reporting party and (2) when such data is publicly disseminated.\73\

Proposed Sec. 43.5(f)(3) would require that records of these

additional time-stamps be maintained for a period of at least five

years from the execution of the block trade or large notional swap. The

Commission believes that requiring a swap market and a registered SDR

to time-stamp these actions for block trades and/or large notional

swaps is essential in providing an audit trail for block trade and

large notional swap transactions from execution through public

dissemination. Additionally, such time-stamps would provide the

Commission ability to monitor whether reporting parties, swap markets

and registered SDRs are reporting the block trades and large notional

swaps in the manner described in proposed part 43.

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\73\ Proposed Sec. 43.5(f) would require five distinct time-

stamps for block trades and three distinct time-stamps for large

notional swaps. Block trades would receive a time-stamp by: (1) The

parties at execution; (2) the swap market upon receipt of the data;

(3) the swap market when it sends the data to a real-time

disseminator; (4) the real-time disseminator upon receipt of the

data; and (5) the real-time disseminator upon public dissemination

of the data. A large notional swap would receive a time-stamp: (1)

The parties at execution; (2) the real-time disseminator (a

registered SDR, if available) upon receipt of the data; and (3) the

real-time disseminator (a registered SDR, if available) upon public

dissemination of the data.

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v. Responsibilities of Registered SDRs in Determining the Appropriate

Minimum Block Size

Proposed Sec. 43.5(g) would require registered SDRs to calculate

the appropriate minimum block size \74\ for

[[Page 76161]]

swaps for which such registered SDR receives data in accordance with

Section 2(a)(13)(G) of the CEA. Such appropriate minimum block size for

a swap instrument \75\ shall be the greater of the resulting number

derived from the ``distribution test'' and the ``multiple test'' (each

described below).\76\ If there is only one registered SDR for a

particular asset class, the registered SDR would have to calculate the

appropriate minimum block size. Since registered SDRs will be receiving

data from all swaps within an asset class, they should have a more

complete set of swap data and therefore the calculations will be based

off of a more complete set of swap data. In the event that there are

multiple registered SDRs for an asset class, and therefore, multiple

registered SDRs would accept swaps for a particular category of swap

instrument, the Commission will prescribe how the appropriate minimum

block size should be calculated, in a way that accounts for all the

relevant data.\77\

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\74\ Proposed Sec. 43.2(c) defines ``appropriate minimum block

size'' to mean the minimum notional or principal size of a swap

instrument that qualifies swaps within such category of swap

instrument as a block trade.

\75\ As discussed below, proposed Sec. 43.2(y) defines ``swap

instrument'' to mean a grouping of swaps in the same asset class

with the same or similar characteristics. Swaps in a category of

swap instruments may be traded on SEFs, DCMs or off-facility. The

Commission is requesting general and specific comment about the

determination of swap instrument, as explained in the discussion of

appendix A to part 43 above.

\76\ The Commission has the authority to require registered SDRs

to provide the appropriate block trade minimum size to the public

under Sections 21(c)(4)(B) and 21(c)(5) of the CEA. Section

21(c)(4)(B) of the CEA states that an SDR shall provide data ``in

such form and at such frequency as the Commission may require to

comply with the public reporting requirements contained in section

2(a)(13).'' Section 21(c)(5) of the CEA states that an SDR shall

``at the direction of the Commission, establish automated systems

for monitoring, screening, and analyzing swap data, including

compliance and frequency of end-user clearing exemption claims by

individual and affiliate entities.''

\77\ The Commission is considering alternative methods on how to

determine the appropriate minimum block size when there is more than

one registered SDR that accepts data for a particular asset class,

including requiring a registered SDR to follow the requirements in

Sec. 40.6(a) of the CEA to self-certify the appropriate minimum

block size and having the Commission make a determination of the

appropriate minimum block size for a swap instrument.

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The Commission requests comment on the appropriate methods to

calculate the appropriate minimum block size when more than one

registered SDR accepts swap data for a particular asset class or swap

instrument. In addition, the Commission requests specific comment on

the following issues:

Who should determine the appropriate minimum block size

when there is more than one registered SDR that accepts swap data for a

particular asset class or instrument?

Should the Commission require registered SDRs to self-

certify determinations of the appropriate minimum block size for swap

instruments?

vi. Formula To Calculate the Appropriate Minimum Block Size

Section 2(a)(13)(E)(ii) of the CEA directs the Commission to

determine the appropriate minimum size for large notional swaps and

block trades.\78\ Proposed Sec. 43.5(g)(1) describes the procedure and

calculations that a registered SDR must follow in determining the

appropriate minimum block size. In determining the appropriate

calculations, the Commission considered: (1) Currently existing size

standards for block trades in other markets; (2) the potential impact

of block trades on liquidity; and (3) the frequency of block trades in

other markets, including equities, bonds and futures markets. The

Commission also considered the standards used by TRACE in setting its

minimum threshold for block trades.\79\ In that regard, for trades with

a par value exceeding $5 million for investment-grade bonds or $1

million for non-investment grade bonds (e.g., high-yield and unrated

debt), TRACE publicly disseminates the quantity as ``5MM+'' and

``1MM+'', respectively.\80\ In developing the appropriate minimum block

size formula, the Commission considered the many differences within the

swaps markets, including differences in liquidity between particular

markets and contracts and differences in product types between asset

classes and within the same asset class.

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\78\ The legislative history to the Dodd-Frank Act provides the

following statement by Senate Agriculture Committee Chairwoman

Blanche Lincoln regarding the calculation of the minimum size for

block trades and large notional swaps: ``The committee expects that

regulators to distinguish between different types of swaps based on

the commodity involved, size of the market, term of the contract and

liquidity in that contract and related contracts, i.e.; for instance

the size/dollar amount of what constitutes a block trade in 10-year

interest rate swap, 2-year dollar/euro swap, 5-year CDS, 3-year gold

swap, or a 1-year unleaded gasoline swap. While we expect the

regulators to distinguish between particular contracts and markets,

the guiding principal in setting appropriate block trade levels

should be that the vast majority of swap transactions should be

exposed to the public through exchange trading.'' 156 Cong. Rec.

S5,921-22 (daily ed. July 15, 2010) (statement of Sen. Blanche

Lincoln).

\79\ TRACE does not use the term ``block trades.'' Rather, the

TRACE system uses the term ``disseminated volume caps.'' In

discussions between TRACE representatives and staff, TRACE informed

staff that disseminated volume caps are, for all intents and

purposes, substantially similar to the minimum size requirements for

block trades.

\80\ See TRACE, Trade Reporting and Compliance Engine, User

Guide, Version 2.4--March 31, 2010, p. 50, http://www.finra.org/web/

groups/industry/@ip/@comp/@mt/documents/appsupportdocs/p116039.pdf.

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Proposed Sec. 43.5(g)(1) would also require a registered SDR to

set the appropriate minimum block size at the greater resulting number

of each of the ``distribution test'' and ``multiple test.''

vii. Distribution Test

Proposed Sec. 43.5(g)(1)(i) describes the distribution test as

applying the ``minimum threshold'' to the ``distribution of the

notional or principal transaction amounts.'' The proposed distribution

test would require a registered SDR to create a distribution curve to

see where the most and least liquidity exists based on the notional or

principal transaction amounts for all swaps within a category of swap

instrument.\81\ The application of the distribution test requires a

registered SDR to determine first the distribution of the rounded

notional or principal transaction amounts of swaps (rounded pursuant to

the proposed rules in Sec. 43.4(i)) within a category of swap

instrument and then calculate a notional or principal size for such

swap instrument that is greater than the minimum threshold.

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\81\ For the purposes of determining the appropriate minimum

block size, swaps may be grouped by asset class into a category of

swap instruments. As discussed above, proposed Sec. 43.2(y) defines

swap instrument as a grouping of swaps in the same asset class with

the same or similar characteristics. A registered SDR would

determine a swap instrument based on different criteria per asset

class. The Commission is requesting comment on the appropriate

criteria to determine the categories of swap instruments for a

particular asset class.

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Proposed Sec. 43.5(g)(1)(i)(A) would require a registered SDR to

pool and perform an empirical distributional analysis on the

transactional data for the swaps included in each category of swap

instrument by pooling the data from such swaps for which it has data

that are executed on a swap market and that are executed off-facility.

Proposed Sec. 43.5(g)(1)(i)(A) also provides that a registered SDR may

consider other economic information in determining the appropriate

minimum block size, in consultation with the Commission.\82\ The

registered SDR should: (1) identify all of the rounded notional or

principal amounts traded; (2) group the transactions of a particular

swap instrument based on the rounded notional or principal amounts;

\83\ and (3)

[[Page 76162]]

calculate the empirical distribution of all trades for the swap

instrument.

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\82\ The Commission anticipates that as swap markets develop,

certain adjustments for seasonality, etc., may become relevant

depending on the particular type of swap contract.

\83\ Rounding would occur pursuant to the rounding rules for the

real-time public reporting of notional or principal amounts which

are illustrated in proposed Sec. 43.4(i).

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Once the distribution of notional or principal transaction amounts

is completed for a swap instrument, a registered SDR must then apply

the minimum threshold to such distribution. Proposed Sec.

43.5(g)(1)(i)(B) describes the ``minimum threshold'' as a notional or

principal amount that is greater than 95% of transaction sizes in a

category of swap instrument during the period of time represented by

the distribution of the notional or principal transaction amounts.

Setting the threshold level at 95% ensures that the resulting number

from the distribution test will be large relative to the notional value

of other swaps of the same type.

In determining the appropriate percentage at which to set the

``minimum threshold,'' the Commission considered the impact of block

trades in selected futures markets.\84\ In the studies conducted by the

Commission, the Commission found that block trades made up a small

percentage of the overall markets, accounting for less than 0.075% of

total trades in the three observed markets (i.e., ED, CL and RB futures

contracts). Recognizing that the market for swaps is not as liquid as

that of futures, and recognizing market participants' needs to lay-off

risk associated with block trades, the Commission is proposing a

minimum threshold of greater than 95%.

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\84\ The Commission examined trading data for the Eurodollar

(``ED''), crude oil (``CL'') and reformulated gasoline blendstock

for oxygenate blending (``RB'') futures contracts, among other

contracts. In the ED, CL and RB studies, the relevant time period

was February 2009 to September 2010 (``relevant time period''). The

Commission evaluated the frequency of use and impact of block trades

in these three futures markets, which represent both liquid (e.g.,

ED) and less liquid (e.g., RB) markets. In the ED futures market,

the Commission looked at a total of 56,643,563 trades of which 502

trades were block trades under CME's rules, representing 0.00089% of

all trades in the ED futures market during the relevant time period.

The average size of an ED futures block trade during the relevant

time period consisted of 2,835 contracts, and the largest ED futures

block trade consisted of 21,800 contracts. In the RB futures market,

the Commission looked at 10,230,939 trades of which 7,551 trades met

the minimum qualifications of a block trade, representing 0.0739% of

all trades in the RB futures market during the relevant time period.

The average size of a RB futures block trade was 106.47 contracts

and the largest RB futures block trade was 1,050 contracts. Lastly,

in the CL futures market, the Commission looked at 53,796,956 trades

of which 9,346 trades were block trades, representing 0.0173% of all

trades during the relevant time period. The average size of a block

trade in CL futures was 294.2 contracts and the largest individual

trade was 5,200 contracts.

At the time of the study, the block trade minimum was 4,000 ED

futures contracts (or 1,000 ED futures contracts, provided that a

minimum of 1,000 contracts are transacted in years 6-10), the block

trade minimum size for RB futures was 100 contracts and the block

trade minimum size for RB futures was 100 contracts. See CME & CBOT

Market Regulation Advisory Notice RA1006-3, October 19, 2010.

Available at: http://www.cmegroup.com/rulebook/files/CME_CBOT_

RA1006-3.pdf. See also, CME Rule 526 (``Block Trades''). Available

at: http://www.cmegroup.com/rulebook/CME/I/5/26.html.

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viii. Multiple Test

Proposed Sec. 43.5(g)(1)(ii) provides that to apply the multiple

test to a swap instrument, a registered SDR shall multiply the ``block

multiple'' by the ``social size''.\85\ The multiple test is necessary

since the market for a swap instrument may be illiquid and there may be

very few transactions over a particular period to provide a meaningful

distribution of transaction amounts.

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\85\ Proposed Sec. 43.2(x) defines the ``social size'' as the

greatest of the mode, median and mean transaction sizes of a

particular type of swap.

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Proposed Sec. 43.5(g)(1)(ii)(A) provides that the social size

shall be determined by: (1) Calculating the mode, median and mean

transaction sizes for all swaps within a category swap instrument; and

(2) choosing the greatest of the mode, median and mean transaction

sizes.\86\ Commission staff's research and external meetings with

market participants indicated that a swap's ``social size'' is an

important criterion in quantifying an appropriate minimum block

size.\87\ The social size, or customary transaction size, for a swap

varies by asset class, tenor and delivery points.

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

\86\ The Commission also considered using one of the mode,

median, or mean of a swap instrument category as the sole

measurement of social size without first comparing the three to

determine which is largest. However, the Commission determined such

a methodology would render an incomplete understanding of a

particular swap category. By itself, the mean would not represent

the social size of a particular type of swap because, as the sum of

the values divided by the total number of transactions, it would

fail to accurately account for the influence of outliers at the

extreme large end of the data set. The median, although it would

take into account swap transaction outliers, would fail to

accurately reflect which trade size is transacted most often.

Finally, the mode, which would represent the trade size that occurs

most frequently in a particular type of swap, would fail to take

into account a market where trade sizes were thinly spread and where

there were large gaps in data points or in swap markets without a

normal distribution.

\87\ See, e.g., Comments from Robert Cook, Director of the

Division of Trading and Markets, SEC, Yunho Song, Managing Director/

Senior Trader, Bank of America Merrill Lynch and Conrad Volstad,

Chief Executive Officer, ELX Futures, L.P.:

Mr. Cook: Let me ask in terms of methodology, it's been argued

by some to us that there are certain markets where there's a social

size of trade or fairly standardized level of trading that could be

used as a part of a building block or measuring--measurement of a

block trade and others where there aren't. I would just ask if, in

your experience, there are generalizations that can be drawn and, if

so, what product categories do you think would lend themselves most

to that type of approach to the issue?

Mr. Song: Well, I'll have a go at this. It's relatively the

easiest for the most liquid products say like interest rate swaps

because you can get data from banks and brokers as to--like data

mining. How many trades have you done? What is the maturity profile?

What is the median ticket size? What ticket size will put you in the

top tenth percentile? Those, I think, you would have the relatively

the least amount of hurdles to derive those number scientifically.

Where it gets difficult is with the products that might trade, like,

once a month, because then you've got the issue with these lumpy

trades, right. It could be very illiquid. Well, you may not trade

for a few months. You do this gigantic trade and then you do very

little trades again and then another gigantic trade. But for--again

for the bulk of the OTC derivative market, for interest rate swaps

and plain vanilla options, I believe that that data is relatively

readily available.

Mr. Voldstad: I would think the same is true for (inaudible)

credit default swaps as it is for various indices. Roundtable Tr. at

376-377.

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Once the social size is determined, the registered SDR must then

apply the block multiplier. Proposed Sec. 43.5(g)(1)(ii)(B) provides

that the block multiple shall be set at five, so therefore the

registered SDR should multiply the social size by five. The resulting

product will be the number that the registered SDR compares to the

resulting number from the distribution test, the greater of which will

be the appropriate minimum block size for such swap instrument. In

determining the block multiplier, the Commission selected a number that

it believed would help to ensure that the block trade size was

sufficiently large relative to the trading in a particular market and

would take into account those markets that have very little trading.

The Commission believes this proposed two-part test is necessary to

ensure that qualifying block trades are, in fact, large trades relative

to the notional or principal amounts for a swap instrument.\88\ For

example, suppose there is a swap instrument that has 500 trades over a

one month period and all of the specific swap instruments had notional

values between $50 and $60 million. Using the distribution test, the

appropriate minimum block size would be somewhere close to $60 million.

Using the multiple test, the appropriate minimum block size would be

$275 million.\89\ The $60 million

[[Page 76163]]

notional size determined by the distribution test would not move the

market (since the market can clearly handle that size) and would

therefore not be a large notional amount relative to the other notional

amounts that traded over the one month period. Therefore, in this

example, the distribution test alone would not provide a good measure

for the appropriate minimum block size. The proposed rules would

require the registered SDR to compare the resulting number from the

distribution test to resulting number from the multiple test. The

greater of the two numbers would be the appropriate minimum block size

for a swap instrument, which the registered SDR would post on its

Internet Web site. In the example above, the result of the multiple

test ($275 million) is greater than the distribution test and therefore

would be the appropriate minimum block size that is posted by the

registered SDR for the swap instrument.

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

\88\ The legislative history to the Dodd-Frank Act provides the

following statement by Senate Agriculture Committee Chairwoman

Blanche Lincoln regarding the calculation of the minimum size for

block trades and large notional swaps: ``Block trades, which are

transactions involving a very large number of shares or dollar

amount of a particular security or commodity and which transactions

could move the market price for the security or contract, are very

common in the securities and futures markets. '' 156 Cong. Rec.

S5,921 (daily ed. July 15, 2010) (statement of Sen. Blanche

Lincoln).

\89\ Assuming that the median ($55 million) is the largest of

the mode, median and mean, the median would be multiplied by the

block multiplier (five (5)) to equal $275 million.

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With respect to newly-listed swaps, a registered SDR would be

required to evaluate the distribution of notional or principal

transaction amounts and calculate the mode, median and mean, over the

one month period following the registered SDR's acceptance of the swap

data pursuant to Section 2(a)(13)(G) of the CEA. Proposed Sec.

43.5(g)(2) provides that after such one month period, the registered

SDR would assign the newly-listed swap to the appropriate category of

swap instrument or determine that a new category of swap instrument was

necessary and would set an appropriate minimum block size. Proposed

Sec. 43.5(g)(2) also provides that registered SDRs should make an

initial determination of the appropriate minimum block size \90\ for a

newly-listed swap one month after such newly-listed swap is first

executed and reported to the registered SDR pursuant to Section

2(a)(13)(G) of the CEA. The Commission believes that one month of

trading data provides a registered SDR with sufficient data to

determine an appropriate minimum block size for a swap instrument.

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

\90\ As discussed, such initial determination may be done by

either grouping such newly-listed swap into an existing swap

instrument category or by creating a new category of swap instrument

and determining the appropriate minimum block size based on the

criteria set forth in proposed Sec. 43.5.

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

Proposed Sec. 43.5(g)(3) provides that registered SDRs must

publish the list of the appropriate minimum block sizes in swap

instruments on its Internet Web site, for which the registered SDR has

received data pursuant to Section 2(a)(13)(G) of the CEA. Such

appropriate minimum block size information must be available to the

public in an open and non-discriminatory manner.

Proposed Sec. 43.5(g)(4) would require that a registered SDR

evaluate the distribution of notional or principal transaction amounts

and calculate the mode, median and mean, on a yearly basis, initially

beginning in accordance with the implementation timeframe for which the

Commission is requesting public comment. The Commission recognizes that

the appropriate minimum block size for a swap instrument may change due

to market conditions. Such annual adjustments are in addition to the

requirement to provide an appropriate minimum block size for newly-

listed swaps one month after the registered SDR first receives data for

such swap. Publishing the information on the same date each year (10th

business day) will allow swap markets, market participants and the

public certainty as to when they should check the appropriate minimum

block sizes and, in the case of swap markets, adjust the minimum block

trade sizes. In making its calculations, the registered SDR should look

back to the data over the previous year for a category of swap

instrument. If a particular swap instrument does not have a an entire

year's worth of data, the proposed rules provide that the registered

SDR should use the data that it has to make its determination of the

appropriate minimum block size for a particular swap instrument.

Proposed Sec. 43.5(g)(4) also provides that registered SDRs shall

begin to publish appropriate minimum block sizes for swap instruments

in January 2012. The Commission believes that such timeframe allows the

registered SDRs enough time to receive data to determine appropriate

minimum block sizes for swap instruments.

The Commission considered the burden on registered SDRs and the

benefit to market participants, swap markets and the public in

proposing an annual update of the appropriate minimum block size.

Allowing for a longer period between reviews would, presumably, bring

more certainty to traders who engage in long-term investment

strategies. However, such longer periods would fail to take into

account the dynamic nature of swaps markets, as significant changes in

swaps markets may occur in a relatively short amount of time.

Therefore, previously established appropriate minimum block sizes may

fail to accurately reflect the market. Conversely, shorter timeframes

(e.g., weekly, monthly, quarterly, etc.) were considered by the

Commission, but such updates may be burdensome on registered SDRs and

may create instability for market participants who engage in long-term

investment strategies. The Commission believes that an annual review of

the appropriate minimum block sizes is appropriate to balance these

competing interests.\91\

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\91\ Registered SDRs will have the relevant swap data readily

available since it will be sent to them pursuant to Section

2(a)(13)(G) of the CEA, and the Commission does not anticipate that

the annual review calculations required by this proposed rule will

be burdensome on a registered SDR. Additionally, market participants

and the public will receive the benefit of having up-to-date,

appropriate minimum block sizes that accurately reflect the current

market for a swap instrument.

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ix. Responsibilities of Swap Markets in Determining Minimum Block Trade

Sizes

Proposed Sec. 43.5(h) provides that after an ``appropriate minimum

block size'' is established by either a registered SDR or by a

Commission prescribed method, a swap market shall set the ``minimum

block trade size'' \92\ for those swaps that it lists and wishes to

allow block trading, by referring to the appropriate minimum block size

that is posted on a registered SDR's Internet Web site for the swap

instrument category for such swap. A swap market must set the minimum

block trade size for a swap at an amount that is equal to or greater

than the appropriate minimum block size listed by the appropriate

registered SDR. A swap market would be responsible for ensuring that

the minimum block trade sizes for swaps that it lists are consistent

with the annual updates to the appropriate minimum block size for swap

instruments. Additionally, a swap market would have to immediately

apply any change to the minimum block size of a particular swap,

following the posting of an appropriate minimum block size by a

registered SDR. The swap market should follow the requirements set

forth in Sec. 40.6(a) of the Commission's regulations.\93\

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\92\ Proposed Sec. 43.2(m) defines ``minimum block trade size''

as the minimum notional or principal amount, as determined by each

swap market, for a block trade in a particular type of swap that is

listed or executed on such swap market.

\93\ The Commission recently proposed amendments to Sec.

40.6(a) of the CEA. See 75 FR 67282 (November 2, 2010).

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

Proposed Sec. 43.5(h) provides that if a swap market wishes to set

a minimum block trade size for a swap that does not have an appropriate

minimum block size listed by a registered SDR, the swap market must

follow the rules in proposed Sec. 43.5(i) which discusses the

procedure for setting the minimum block trade size for newly-listed

swaps.

Proposed Sec. 43.5(i) would require a swap market to set a minimum

block trade size for newly-listed swap. Proposed Sec. 43.2(n) defines

a ``newly-

[[Page 76164]]

listed swap'' as a swap that is listed on any swap market where an

appropriate minimum block size has not been published by a registered

SDR.\94\ The minimum block trade size for a newly-listed swap that is

set by a swap market would govern the trading of the newly-listed swaps

on such swap market until such time as a registered SDR establishes an

appropriate minimum block size for the newly-listed swap.

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

\94\ A swap market may, however choose not to allow block

trading for such swaps and would therefore not be required to make

such determination.

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

ProposedSec. 43.5(i)(1) provides that if a newly-listed swap is

within the parameters of an existing category of swap instrument for

which a registered SDR has posted an appropriate minimum block size,

the swap market shall set the minimum block trade size for such newly-

listed swap at a level equal to or greater than such appropriate

minimum block size. The requirement would enable a swap market to

reference a currently existing appropriate minimum block size as a

point of reference during the one-month interim period until the

registered SDR actually puts the swap in a particular category of swap

instrument and establishes an appropriate minimum block size. Proposed

Sec. 43.5(i)(2) provides that in setting the minimum block trade size

for a newly-listed swap that is not within an existing category of swap

instrument, the swap market should consider: (i) The anticipated

distribution of notional or principal transaction amounts; (ii) the

social size for swaps in other markets that are in substance the same

as the newly-listed swap; and (iii) the minimum block trade sizes of

similar swaps in the same asset class.. After taking into account these

considerations, proposed Sec. 43.5(i)(3) provides that the swap market

must ensure that the notional or principal amount selected represents a

reasonable estimate of the greater of (i) a notional or principal

amount that is greater than all but 95% of the total anticipated

distribution of notional or principal transaction amounts over the one-

month period immediately following the first execution of the swap; or

(ii) five times the anticipated social size over the one-month period

immediately following the first execution of the swap.

In the event that a registered SDR does not set an appropriate

minimum block size for a newly-listed swap after one month, as

described in proposed Sec. 43.5(g)(2), the Commission believes that in

order to comply with the proposed requirements of Sec. 43.5(i), a swap

market should continue to revise the minimum block trade size for such

newly-listed swap as trading increases in order to ensure that the

estimated minimum block trade size is reasonable relative to increased

trading activity for such newly-listed swap. Such process should

continue until an appropriate minimum block size is published for the

type of swap by a registered SDR.\95\

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\95\ If the initial minimum block trade size established by a

swap market is greater than or equal to the appropriate minimum

block size posted on a registered SDR's Internet Web site, a swap

market may not have to adjust its minimum block trade size. In such

a situation, a swap market may reduce its minimum block trade size

to the appropriate minimum block size.

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

If the same type of swap begins trading on more than one swap

market during the one-month period before a registered SDR sets the

appropriate minimum block size, proposed Sec. 43.5(i) would apply to

each swap market where such swap is traded. Each such swap market

should set the minimum block trade size the swap listed on its facility

until an appropriate minimum block size is published by a registered

SDR.\96\

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\96\ For example, if on March 1, a newly-listed swap is executed

on swap market 1 and a registered SDR is available to accept the

swap transaction and pricing data for the swap. If on March 15, a

swap is traded on swap market 2 with the same terms as the swap

traded on swap market 1. The minimum block trade size established by

swap market 1 will prevail until the appropriate minimum block size

is calculated and posted on the registered SDR's Internet Web site

on April 1, at which time swap market 1 must ensure its minimum

block trade size is greater than or equal to the appropriate minimum

block size. The minimum block trade size established by swap market

2 will only be its prevailing block trade size until April 1st, when

it must conform to the appropriate minimum block size as calculated

by the registered SDR.

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x. Responsibilities of the Parties to a Swap in Determining the

Appropriate Minimum Large Notional Swap Size

Section 43.5(j)(1) provides the procedure for parties to a swap to

determine the appropriate minimum large notional swap size.\97\ Because

the appropriate minimum block size for swap instruments will be

available on a registered SDR's Internet Web site with respect to swaps

that have been trading for one month or longer, the proposed rules

provide that parties who engage in an off-facility swap, and seek to

qualify their swap as a large notional swap, must refer to the

appropriate minimum block sizes for swap instruments. Parties to such

off-facility swap must then identify the category of swap instrument in

which the swap that they wish to be considered a large notional swap

would likely fall. The parties to the off-facility swap should refer to

the appropriate minimum block size that is associated with the selected

swap instrument, and the notional or principal amount of such swap must

be equal to or greater than the appropriate minimum block size. If

there is not an existing category of swap instrument with an

appropriate minimum block size available to reference, then such swap

between the parties shall not qualify as a large notional swap and

would not be afforded any time delay in public reporting. In

determining the appropriate category of existing swap instrument, the

parties to a swap should consider and must document: (1) The

similarities of the terms of the swap between the parties compared to

the terms of swaps that are grouped within the existing category of

swap instrument (e.g., similarities of the fields listed in appendix A

to proposed part 43); and (2) other swaps listed on swap markets that

were considered in evaluating the swaps that are grouped within the

existing swap instrument.

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\97\ As noted, proposed Sec. 45.3(b)(2) requires the reporting

party of a large notional swap to elect to treat such swap as a

large notional swap.

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

The Commission considered several factors in determining this

proposed method for calculating the appropriate minimum size for large

notional swaps. First, the appropriate minimum block sizes that are

posted by a registered SDR should be accurate, up to date and

accessible to market participants. Additionally, to the extent that the

reporting party to a large notional swap is a swap dealer or MSP, such

reporting parties would be subject to the Commission's proposed rules

for internal business conduct standards in proposed part 23 of the

Commission's regulations. Further, the swap instrument categories

should be broadly defined to allow parties to a large notional swap to

easily place their swap into one of the categories of swap instrument.

The parties to an off-facility swap should therefore be able to

accurately choose a swap instrument based on the criteria set forth in

this proposed rule.

Proposed Sec. 43.5(j)(2) provides that, to the extent that the

parties to a large notional swap transaction are swap dealers and/or

MSPs, such parties must maintain records that illustrate the basis for

the selection of the swap instrument for the large notional swap in

accordance with proposed part 23 of the Commission's regulations. This

section also requires that such records be made available to the

Commission upon request. This proposed recordkeeping requirement should

ensure that parties to an off-facility swap do not attempt to

manipulate these proposed rules.

Proposed Sec. 43.5(j)(3) provides that if the parties to a swap

are unable to determine, identify or agree on the appropriate swap

instrument to

[[Page 76165]]

reference for the purposes of treating such swap as a large notional

swap, such swap cannot qualify as a large notional swap and therefore

will not be eligible for a time delay thereby requiring that such swap

transaction and pricing data be publicly disseminated in real-time.

The Commission requests comment generally on all aspects of

determining the appropriate minimum size for block trades and large

notional swaps. In addition, the Commission requests comment on the

following issues:

Do commenters agree with the approach of having a

registered SDR calculate and publicize appropriate minimum block size,

but allowing swap markets to individually set their own minimum block

sizes for particular contracts at a higher level based on the

appropriate minimum block size? Why or why not? If not, please provide

an alternative approach.

Is the distribution test an acceptable method of

determining an appropriate minimum block size? If so, is 95% the

appropriate minimum threshold?

Is the multiple test an acceptable method of determining

an appropriate minimum block size? If so, is five the appropriate block

multiple?

Do the distribution test and the multiple test, taken

together, account for a situation where there is a swap instrument with

an extremely small sample (e.g., less than 40 transactions for a

category of swap instrument)? If not, what alternative method of

calculation can be added for swap instruments with a small number of

transactions?

Do commenters agree with the proposal to use the greater

of the distribution test or the multiple test)? If not, what

alternative approach should be used and why?

The Commission recognizes that the two-pronged formula for

determining the appropriate minimum block size may lead to a relatively

small appropriate minimum block size and the possibility that a

significant percentage of the overall notional or principal amount of

swaps transacted in a particular category of swap instrument could be

executed pursuant to block trade rules or as large notional swaps,

which are subject to a delay in real-time public dissemination.

Therefore, should the Commission adopt an additional standard which

would limit the aggregate notional or principal amount of block trades

and large notional swap transactions to a percentage of the overall

notional or principal volume over the prior year? If not, why not? If

so, why and what should that percentage be? Should some other test be

used to address this situation?

Do commenters agree that the appropriate minimum block

sizes for swap instruments, as determined by a registered SDR, should

apply to all swap markets and off-facility swaps, regardless of

differences in liquidity in swap markets or off-facility? \98\

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

\98\ See Section 2(a)(13)(E)(iv).

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

Should there be one block trade formula for all swaps?

Should there be one block trade formula for all swaps in an asset

class? Should different swap instruments have different block trade

formulas? If commenters believe there should be various block trade

formulas for different markets, for which markets and how should those

standards be defined?

Do commenters agree with the proposed method for

determining the minimum block size for large notional swaps? If not,

why (please provide alternative methods)? Do commenters believe that

there should be other criteria that should be considered in determining

if a swap is a large notional swap? If so, what other criteria?

If there is more than one registered SDR per asset class,

how could the Commission ensure that all registered SDRs implement the

same appropriate minimum block size formula for the entire market for a

category of swap instrument? How should the Commission approach this

issue?

Do commenters believe that the concept of block trades

should exist for newly-listed swaps? If not, why? Do commenters agree

with the proposed method for determining the minimum block trade size

for newly-listed swaps? If not, why?

Do commenters believe that the registered SDRs should

initially calculate the appropriate minimum block size for a swap one

month after a swap has been executed on a swap market? If so, why? If

not, why?

If there is no registered SDR to accept swaps for an asset

class, do commenters agree with the Commission's proposal that swap

markets will determine the minimum block sizes in the manner described

in proposed Sec. 43.5(h) and (i)?

Do commenters believe that having registered SDRs perform

an annual review of all appropriate minimum block sizes is the

appropriate frequency? If so, why? If not, why?

How much data would be necessary for the initial

determination by registered SDRs of appropriate minimum block trade

sizes? When should such initial determination of appropriate minimum

block trade sizes begin? Should there be different initial

determinations times based on asset class? If so, why?

Should registered SDRs consider data for pre-existing

swaps (i.e., swaps entered into prior to the effective date of the

Dodd-Frank Act) in making their determinations of the appropriate

minimum block sizes for swap instruments? If so, why? If not, why?

Should registered SDRs have a requirement to consult with

swap markets in calculating the appropriate minimum block size of a

swap instrument? If not, should swap markets have an ability to dispute

and/or appeal the calculation of the appropriate minimum block size for

a swap instrument that is determined by a registered SDR?

Should registered SDRs submit to the Commission their

formulas/calculations for the appropriate minimum block sizes of swap

instruments in order to ensure market transparency?

xi. Time Delay in the Real-Time Public Reporting of Block Trades and

Large Notional Swaps

Section 2(a)(13)(A) of the CEA requires that all parties to swap

transactions, including parties to block trades and large notional swap

transactions, to report data relating to swap transactions ``as soon as

technologically practicable after the time at which the swap

transaction has been executed.'' \99\ However, the Dodd-Frank Act also

requires the Commission to promulgate rules ``to specify the

appropriate time delay for reporting large notional swap transactions

(block trades) to the public.'' \100\ Additionally, the Dodd-Frank Act

requires that the Commission, in writing these proposed rules, ``take

into account whether public disclosure will materially reduce market

liquidity.'' \101\

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\99\ Section 2(a)(13)(A) of the CEA; see also, Statement of

Senate Agriculture Committee Chairwoman Blanche Lincoln's statement:

``With respect to delays in public reporting of block trades, we

expect the regulators to keep the reporting delays as short as

possible.'' 156 Cong. Rec. S5,922 (daily ed. July 15, 2010)

(statement of Sen. Blanche Lincoln).

\100\ Section 2(a)(13)(E)(iii) of the CEA.

\101\ Section 2(a)(13)(E)(iv) of the CEA.

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The Commission recognizes the potential market impact that the

reporting of a block trade or large notional swap may have on the

market. Such potential market impact is critical to the determination

of an appropriate time delay before public dissemination of block trade

or large notional swap transaction and pricing data. The ability for

market participants to trade in large

[[Page 76166]]

notional or principal amounts without market prices moving

significantly against them is a vital component of any vibrant and

liquid marketplace.

In external meetings with market participants, CFTC staff was often

told that increased pre-trade and post-trade transparency would enable

front-running and may have an adverse impact on market liquidity.

Specifically, market participants expressed concern that if they were

required to publicly disseminate swap transaction and pricing data

immediately after the execution of a block trade or large notional

swap, other market participants would be able to profit on this

information by anticipating the trading activity of the block trade or

large notional swap participants who are attempting to hedge their swap

portfolios. As other market participants anticipate the block trade or

large notional swap parties' hedges, prices may rise adverse to the

market participant who is attempting to hedge and, as a result, certain

market participants may be forced to take on increased costs and market

exposure in offsetting their risk. Although CFTC staff was often told

of the adverse impact of post-trade transparency on market liquidity,

staff is not aware of any empirical evidence to support this

position.\102\

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\102\ See, e.g., the exchange at the Roundtable between Chester

Spatt, Pamela R. and Kenneth B. Dunn Professor of Finance, Tepper

School of Business, Director, Center for Financial Markets Carnegie

Mellon University and Yunho Song, Managing Director/Senior Trader,

Bank of America Merrill Lynch:

MR. SPATT: So just to follow up on that as well, in the three

years that I was at the SEC, was basically coincided with the three

years after much of the implementation of TRACE. And while folks

from industry repeatedly came in and pressed the point that spreads

were wider, they never presented to us in any format a convincing

empirical study and nor am I aware of any empirical study in the

academic community to show those effects. So I do think it's

incumbent upon critics of post-trade disclosure to point to and

identify convincing empirical evidence of these effects. And I think

that's extremely important to the regulators as they go forward, but

I must say, I'm not aware of that evidence right now.

MR. SONG: If I may comment on that--I think one of the

distinctions we have is a market that may be [smaller] in retail

based versus a market that is with [a] far small number of

participant[s] and that's institutional based. So, you may not be

able to, for example, find who was doing a specific trade looking at

a TRACE report so it has a marginal impact on the marketplace * * *.

Roundtable Tr. at 332-333.

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Proposed Sec. 43.5(k)(1) provides the appropriate time delays for

public dissemination of block trades and large notional swaps. The time

delay for public dissemination begins at execution of the swap (i.e.,

upon or immediately following or simultaneous with affirmation of the

parties to the swap). Therefore, in the case of a block trade, the time

delay would begin prior to the time that that a swap market receives

the swap transaction and pricing data from a reporting party. The

registered SDR that publicly disseminates such data would be

responsible for ensuring that such data is disseminated in accordance

with proposed Sec. 43.5(k).

Proposed Sec. 43.5(k)(2) requires that the time delay for block

trades be no later than 15 minutes after the time of execution. After

the 15 minute time delay has expired, the registered SDR or the swap

market (through a third-party service provider) must immediately

disseminate the swap transaction and pricing data to the public.\103\

As discussed above, such delay does not apply to the reporting party's

requirement to report to a swap market or to a swap party's requirement

to report to a real-time disseminator. It is the responsibility of the

registered SDR or the swap market (through a third-party service

provider) to hold the swap data for a period of 15 minutes after the

execution of the trade prior to dissemination. The 15 minute time delay

would apply to all swaps in Sections 2(a)(13)(C)(i) and (iv) of the

CEA, meaning that even though some swaps may be large notional swaps

(e.g., those subject to the non-financial end-user exception from

mandatory clearing) they would be subject to the same time delay as

block trades executed pursuant to the rules of a swap market. The

Commission believes that since swaps in Sections 2(a)(13)(i) and (iv)

of the CEA will be standardized, they should be subject to the same

time delay as other standardized swaps.

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\103\ In calculating the 15 minute time delay, the clock begins

immediately upon execution of the swap transaction. Under proposed

Sec. 43.5(k), no pause in the running of the clock is permitted

during the time it takes the reporting party or swap market to

report the swap data to a real-time disseminator.

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In determining this proposed time delay for standardized block

trades and large notional swaps, the Commission considered time delays

for reporting block trades or large notional transactions in other

markets. FINRA's TRACE system for corporate and agency debt securities

requires that ``transactions in TRACE-eligible securities executed on a

business day at or after 8:00 a.m. Eastern Time through 6:29:59 p.m.

Eastern Time must be reported within 15 minutes of the time of

execution.'' \104\ Given the 15 minute reporting delay, TRACE does not

provide any additional time delay for those trades that are subject to

disseminated volume caps.\105\ On the other hand, in the equity

securities markets the New York Stock Exchange (``NYSE'') requires all

trades to be reported within 30 seconds; no additional time delay is

provided for block trades.\106\ The London Stock Exchange (``LSE'')

allows the publication of the trade to be delayed, if requested, for a

specified period of time which is dependent on the volume of the trade

compared to the average daily turnover, as published by LSE, for that

particular security.\107\ In the futures markets, CME Group's rules

require the seller in a block trade transaction to report to the

exchange within five minutes of execution if the trade is executed

during regular trading hours (as compared to the immediate reporting

exchange executed transactions). After the reporting of the block trade

data, the exchange ``promptly publishes such information separately

from the reports of transactions in the regular markets.'' \108\ NYSE

Liffe U.S., on the other hand, allows a 15 minute delay after the trade

is executed to publicly report the block trade information.\109\

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\104\ FINRA Rule 6730 (``Transaction Reporting''). Available at:

http://finra.complinet.com/en/display/display_

main.html?rbid=2403&element_id=4402.

\105\ See TRACE, Trade Reporting and Compliance Engine, User

Guide, Version 2.4--March 31, 2010, p. 50. Available at: http://

www.finra.org/web/groups/industry/@ip/@comp/@mt/documents/

appsupportdocs/p116039.pdf.

\106\ The NYSE has a definition of ``block trade'' but such

designation does not affect how such transactions are reported. See

NYSE Rule 127.

\107\ LSE rules require member firms to submit trade reports to

LSE as ``close to instantaneously as technically possible and that

the authorized limit of three minutes should only be used in

exceptional circumstances,''; however, publication of such data may

be deferred. See, LSE Rules 3020 and 3030, effective August 2, 2010.

Available at: http://www.londonstockexchange.com/traders-and-

brokers/rules-regulations/rules-lse-2010.pdf.

\108\ See, CME Rule 526(F), (``The seller must ensure that each

block trade is reported to the Exchange within five minutes of the

time of execution; except that block trades in interest rate futures

and options executed outside of Regular Trading Hours (7 a.m.-4 p.m.

Central Time, Monday-Friday on regular business days) and Housing

and Weather futures and options must be reported within fifteen

minutes of the time of execution.''). Available at: http://

www.cmegroup.com/rulebook/CME/I/5/26.html.

\109\ See NYSE Liffe U.S. Rule 423(d), (``Block Trades must be

reported to the Exchange in a manner prescribed from time to time by

the Exchange. Block Trades must be reported to the Exchange within

15 minutes after the completion of negotiations, but may not be

submitted any later than 15 minutes prior to the Contract's Trading

Session close time.''). Available at: http://www.nyse.com/pdfs/

rulebook.pdf.

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Proposed Sec. 43.5(k)(3) provides that large notional swap

transaction and pricing data must be reported to the public by the

registered SDR that accepts and publicly disseminates such data subject

to a time delay as may be

[[Page 76167]]

prescribed by the Commission. The Commission believes that such time

delay for large notional swaps may vary based on whether a swap's

underlying asset is a financial or a physical commodity, asset class,

and/or other factors. This provision covers all swaps under Sections

2(a)(13)(C)(ii) and (iii) of the CEA, which covers those swaps that are

not subject to the mandatory clearing requirement. The swaps that fall

under Sections 2(a)(13)(C)(ii) and (iii) of the CEA generally will be

more customized and may, in some instances require, in the case of

large notional swaps, different time delays than the time delays for

block trades.

Proposed Sec. 43.5(l) provides that all information in the data

fields described in appendix A to this part and proposed Sec. 43.4

shall be disseminated to the public for block trades and large notional

swaps.

The Commission requests comment generally on all aspects of the

proposed time delay in reporting block trade and large notional swap

transaction and pricing data to the public. In addition, the Commission

requests specific comment on the following issues:

Do commenters believe that any time delay is appropriate

for block trades and/or large notional swaps? If not, why? If so, why?

Is a 15 minute time delay for publicly reporting the block

trade transaction and pricing data described in the proposed rules an

appropriate amount of time? If not, why? If so, why?

Should the Commission consider different time delays for

block trades that are significantly larger than the appropriate minimum

block trade size? If so, why? How much larger than the appropriate

minimum block trade size should the notional or principal amount be to

warrant an additional time delay?

Should the Commission consider different time delays for

block trades and large notional swaps based on asset classes, swap

instruments or particular contracts? If so, what factors or specific

examples would warrant such longer time delays?

How should the Commission determine an appropriate time

delay for large notional swaps? The Commission believes that swaps will

fall under the Commission's jurisdiction in the equity, credit,

currency and interest rate asset classes (i.e., financial swaps) can be

distinguished from those swaps that fall in the other commodity asset

class (e.g., physical commodities). The Commission's presumption is

that swaps in the equity, credit, currency and interest rate asset

classes be subject to the same time delay as block trades (i.e., 15

minutes). Do commenters agree that 15 minutes is an appropriate delay

for these trades? If not, why and what would be an appropriate time

delay? With regard to the time delay for large notional swaps in the

other commodity asset class, the Commission recognizes a longer time

delay may be necessary due to the hedging strategies that are

associated with such swaps. What time delay would be appropriate for

swaps in the other commodity asset class and why?

What are the factors that should be considered in

determining how long a time delay for a large notional swap should be?

Which characteristics of a swap should be taken into consideration in

determining the time delay for publicly disseminating swap transaction

and pricing data relating to a large notional swap?

If commenters believe that there would be an adverse price

impact for traders if all information on block trades were made

available in real-time, do commenters have any studies or empirical

evidence to support that assertion? What would be the long-term effects

on the market if all market participants knew the swap transaction and

pricing details of all swaps in real-time? Would this impact liquidity?

If so, how?

Would the differences between the Commission's and the

SEC's proposals for treatment of block trades, particularly regarding

the time delay for public dissemination of block trade information

provide for unfair treatment for any market participants? If so, how?

Could the differences in the proposals regarding the time delay lead to

any disruption in trading in any swaps markets? If so, how?

xii. Prohibition of Aggregation of Trades

Proposed Sec. 43.5(m) prohibits the aggregation of orders for

different trading accounts in order to satisfy the minimum block size

requirement, except if done on a DCM by a commodity trading advisor

acting in an asset manager capacity or an investment advisor who has

$25 million in total assets under management.

III. Related Matters

A. Cost-Benefit Analysis

1. Introduction

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

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

CEA.\110\ By its terms, Section 15(a) of the CEA does not require the

Commission to quantify the costs and benefits of the rulemaking or to

determine whether the benefits of the rulemaking outweigh its costs;

rather, it requires that the Commission ``consider'' the costs and

benefits of its actions. Section 15(a) of the CEA further specifies

that the costs and benefits 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 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 areas and could in its discretion determine that,

notwithstanding its costs, a particular rule is necessary or

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

provisions or accomplish any of the purposes of the CEA.

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\110\ See 7 U.S.C. 19(a).

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2. Summary of Proposed Requirements

The proposal provides rules for the real-time public reporting of

all swap transaction data, including volume and pricing data. The

proposed rules mandate that reporting parties (which include swap

dealers, MSPs and end-users) and swap markets (which include SEFs and

DCMs), be responsible for the reporting of the swap transaction and

pricing data in real-time by sending the data to an appropriate real-

time disseminator. For swaps traded on a swap market, the swap market

must send the data to a registered SDR or third-party service provider

and such entity will publicly disseminate the swap transaction and

pricing data in real-time. For off-facility swaps, the reporting party

(either an MSP, swap dealer, or end-user) must send the data to a

registered SDR, or if no registered SDR is available, to a third-party

service provider, who will publicly disseminate the swap transaction

and pricing data. The proposed rules also specify rules for how swap

transaction and pricing data for trades deemed as either a block trade

or large notional swap should be publicly disseminated.

3. Costs

With respect to costs, the Commission believes that the proposed

reporting and recordkeeping requirements would impose significant

compliance costs on registered SDRs, SEFs, DCMs, swap dealers, MSPs,

end-users and third-party service providers. The proposed rules may

reduce liquidity in the market by discouraging dealers from holding

inventory as part of a market participant's risk management practice.

Disclosing the terms of a trade

[[Page 76168]]

immediately after execution exposes the price paid for a large position

by a particular dealer to the rest of the market. Market participants

may attempt to anticipate trading activity that the dealer will engage

in to rebalance its portfolio, which may induce adverse price movements

against such dealer. Additionally, real-time public reporting may

obstruct some trading in illiquid instruments. Swap dealers may be less

likely to commit capital in less liquid products because the terms of

the trade are disclosed as soon as the trade is executed and the dealer

fears his ability to lay off the risk in the market. If a trade is

considered a block trade or large notional swap, the proposed rules may

lead to increased costs associated with added liquidity risks, which

may be passed on to end-users.

4. Benefits

With respect to benefits, the Commission believes that the proposed

rules promote transparency in swaps trading which, in turn, creates

greater efficiency in the swap markets.\111\ Additionally, real-time

reporting may expand trading opportunities as market participants have

more data to analyze and research when producing investment strategies.

The Commission believes that transparency in the form of real-time

public dissemination of swap transaction and pricing data leads to the

fairness and efficiency of markets and improves price discovery. The

facilitation of price discovery decreases risk to market participants

by promoting responsible and informed risk taking and, to the extent

that swaps play a central role in the national economy, decreases the

risk of another financial disaster by enabling market participants to

measure systematic risk. The Commission believes that the federal

government will be better positioned to protect the public as a result

of increased surveillance and monitoring of the swap markets and its

market participants. The Commission requests public comment on its

cost-benefit considerations. Specifically, the Commission requests

comment on whether there are alternative ways we can meet these

statutory requirements under Section 727 of the Dodd-Frank Act in a

less costly manner. Commenters are also invited to submit any data or

other information that they may have quantifying or qualifying the

costs and benefits of the proposal with their comment letters.

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\111\ Under Section 727 of the Dodd-Frank Act, Congress has

mandated that swap transaction and pricing data be real-time

reported and publicly disseminated. The Commission has requested

comments on ways we can meet these statutory requirements in a less

costly manner.

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B. Paperwork Reduction Act

1. Introduction

The purposes of the Paperwork Reduction Act (``PRA'') are, among

other things, to minimize the paperwork burden to the private sector,

ensure that any collection of information by a government agency is put

to the greatest possible uses, and minimize duplicative information

collections across government.\112\ The PRA applies with extraordinary

breadth to all information, ``regardless of form or format,'' a

government agency is ``obtaining, causing to be obtained [or]

soliciting'' and includes requiring ``disclosure to third parties or

the public, of facts or opinion,'' when the information collection

calls for ``answers to identical questions posed to, or identical

reporting or recordkeeping requirements imposed on, ten or more

people.'' \113\ This provision has been determined to include not only

mandatory but also voluntary information collections, and include both

written and oral communications.\114\

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\112\ See 44 U.S.C. 3501.

\113\ 44 U.S.C. 3502.

\114\ See 5 CFR 1320.3(c)(1).

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To effect the purposes of the PRA, Congress requires all agencies

to quantify and justify the burden of any information collection it

imposes.\115\ This includes submitting each collection, whether or not

it is contained in a rulemaking, to the Office of Management and Budget

(``OMB'') for review.\116\ The OMB submission process includes

completing a form 83-I and a supporting statement with the agency's

burden estimate and justification for the collection. When the

information collection is established within a rulemaking, the agency's

burden estimate and justification should be provided in the proposed

rulemaking, subjecting it to the rulemaking's public comment process.

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\115\ See 44 U.S.C. 3506.

\116\ See 44 U.S.C. 3507.

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Provisions of proposed part 43 of the Commission's regulations

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 ``Regulation 43--Real-Time Public

Reporting,'' OMB control number 3038-NEW. If adopted, responses to this

new 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.

2. Information Provided by Reporting Entities/Persons

As mentioned above, proposed part 43 of the Commission's

regulations would result in three new collections of information

requirements within the meaning of the PRA. First, proposed part 43

would create a new reporting requirement either on a ``swap market''

when a swap is executed on a facility, or on the parties to each swap

transaction when a swap is not executed on such a facility. Second,

proposed part 43 would create a public dissemination requirement on a

``real-time disseminator''. Third, proposed part 43 creates a

recordkeeping requirement for swap markets, real-time disseminators,

any reporting party.

i. Reporting Requirement

Under proposed Sec. 43.3(a), reporting parties \117\ would be

required to electronically report any reportable swap transactions

\118\ to a real-time disseminator, except as otherwise provided in such

section. Proposed Sec. 43.3 places the duty to report on several

entities or persons depending on: (1) The manner in which the

transaction is executed; and (2) the parties to the swap transaction.

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\117\ Proposed Sec. 43.2(w) defines ``reporting party'' to

include the party to a swap with the duty to report a reportable

swap transaction.

\118\ Proposed Sec. 43.2(v) defines ``reportable swap

transaction'' to mean any executed swap, notation, swap unwind,

partial novation, partial swap unwind or any other post-execution

event that affects the pricing of a swap.

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For those swap transactions that are executed on a swap market

(i.e., a DCM or SEF), proposed Sec. 43.3 requires the swap market to

publicly disseminate such swap transaction and pricing data by either

sending swap transaction information to a registered SDR that accepts

and publicly disseminates swap transaction and pricing data or by

[[Page 76169]]

sending swap transaction information through a third-party service

provider for public dissemination. The Commission estimates that DCMs

and SEFs (an estimated 57 entities or persons) will have approximately

2,080 burdens hours per swap market.\119\

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\119\ Because the Commission has not regulated the swap market,

it has not collected data relevant to this estimate. Therefore, the

Commission requests comment on this estimate.

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For those swap transactions that are executed ``off-facility'',

proposed Sec. 43.3 requires reporting parties (i.e., swap dealers,

MSPs and swap end-users) to report their swap transaction and pricing

data to a registered SDR or, if no registered SDR will accept such

data, to a third-party service provider. With respect to swap dealers

and MSPs (an estimated 300 entities or persons), proposed Sec. 43.3

requires only one party to such transaction report to a real-time

disseminator. The Commission estimates that swap dealers and MSPs will

have 2,080 annual burden hours associated with the reporting

requirement under proposed Sec. 43.3. With respect to swap end-users,

proposed Sec. 43.3 requires swap end-users to report their swap

transaction and pricing data only for end-user-to-end-user

transactions. In addition, proposed Sec. 43.3 provides that only one

swap end-user in an end-user-to-end-user swap transaction will have the

obligation to report to a real-time disseminator. For that reason, the

Commission estimates that the total number of swap end-users that would

be required to report their swap transaction and pricing data is 1,500

entities or persons.\120\ The Commission estimates that swap end-users

will have four (4) annual burden hours per reporting party or person,

for a total of 6,000 aggregate annual burden hours.\121\

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\120\ The Commission requests comment on the number of swap end-

users that would be required to report their swap transaction and

pricing data pursuant to proposed Sec. 43.3. The Commission

estimates that there will be a total of 30,000 swap market

participants and that 1,500 of those participants will engage in

end-user-to-end-user swap transactions (5% of 30,000) requiring at

least one of those participants to report such swap transaction and

pricing data.

\121\ Estimated burden hours were obtained in consultation with

the Commission's experts on information technology. This estimate

includes the expectation that end users who participate in end-user-

to-end-user swaps will contract with other entities to report the

swap transaction and pricing data to a registered SDR or third party

service provider. The Commission requests comment on these

estimates.

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Based on the foregoing, the Commission has determined the estimated

aggregate annual burden hours on swap markets and with respect to off-

facility swap transactions to be 748,560.

ii. Public Dissemination Requirement

Proposed Sec. 43.3 requires a registered SDR to publish through an

electronic medium swap transaction and pricing data received from

reporting parties as soon as technologically practicable, except when

the registered SDR is required to delay the publication of information

relating to large notional swaps or block trades. The Commission

estimates that there will be approximately 15 registered SDRs \122\

Proposed Sec. 43.3(h) requires registered SDRs to receive and publicly

disseminate real-time swap transaction and pricing data at all times,

24-hours a day. The Commission anticipates that there will be 6,900

annual burden hours per registered SDR. Based on the foregoing, the

Commission has determined the estimated aggregate annual burden hours

to be 103,500 for all registered SDRs.\123\ Therefore, the total

aggregate annual burden hours associated with this public dissemination

requirement, including the burden hours associated with third party

service providers, is estimated to be 207,000.

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\122\ Because the Commission has not regulated the swap market,

the Commission was unable to collect data relevant to these

estimates. For that reason, the Commission requests comment on these

estimates.

\123\ The Commission estimates that there will be 15 third-party

service providers. These third-party service providers are

anticipated to have the same public dissemination and recordkeeping

burden hours as those estimated for registered SDRs. Proposed Sec.

43.3(d) would require a swap market that chooses to publicly

disseminate swap transaction and pricing data in real-time through a

third-party service provider to (1) ensure that any such third-party

service provider that publicly disseminates the swap market's swap

transaction and pricing data in real-time does so in a manner that

complies with those standards for registered swap data repositories

described in this part; and (2) ensure that the Commission has

access to any such swap transaction and pricing data, through either

the swap market or via direct access to the third-party service

provider. Additionally, certain off-facility swaps may be publicly

disseminated through a third-party service provider in those

instances where no registered SDR is available to accept and publish

the swap transaction and pricing data. Therefore, although the

ultimate responsibility is on the swap market who uses a third-party

service provider to ensure it complies with standards set forth in

part 43 for registered SDRs, the third-party service provider will

be the entity actually performing the public dissemination and, in

some cases, recordkeeping function for certain swaps. Therefore, as

was estimated for registered SDRs, the Commission estimates a public

dissemination burden of 6,900 hours per third-party service

provider, for an aggregate of 103,500 annual burden hours for all

third-party service providers. Also, the Commission estimates a

recordkeeping burden of 250 hours per third-party service provider,

for an aggregate of 3,750 annual burden hours for all third-party

service providers.

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iii. Recordkeeping Requirement

Under proposed Sec. 43.3(i), swap markets (an estimated 57

entities or persons), registered SDRs (an estimated 15 entities or

persons) and reporting parties must retain all data relating to a

reportable swap transaction for a period of not less than five years

following the time at which such reportable swap transaction is

publicly disseminated in real-time. With respect to swap markets and

real-time disseminators, the Commission estimates that proposed

recordkeeping requirement will be 250 annual burden hours per swap

market and registered SDR.\124\ As referenced above, the Commission

anticipates that 1,500 swap end-users will be reporting parties for the

purposes of this part of the Commission's regulations. Since the

Commission anticipates that there will be lower levels of activity

relating to the requirement for swap end-users, the Commission

estimates that there will be two (2) annual burden hours per swap end-

user. It is important to note that the Commission addresses the

recordkeeping requirements of swap dealers and MSPs in a separate, but

related rulemaking relating to the internal business conduct standards

of these entities as part of the Commission's overall rulemaking

initiative implementing the Dodd-Frank Act.\125\

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\124\ See footnote 123 above.

\125\ 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 Commission invites

public comment on the accuracy of its estimate that no additional

recordkeeping or information collection requirements related to swap

dealers and MSPs would result from the rules proposed herein.

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Based on the foregoing, the Commission estimates that the aggregate

annual burden hours associated with the recordkeeping requirement under

the proposed Sec. 43.3 will be 39,250.

iv. Determination of Appropriate Minimum Block Size

Under proposed Sec. 43.5(g), registered SDRs (an estimated 15

entities or persons) will be required to determine the appropriate

minimum block size for swaps for which these registered SDRs receive

data in accordance with Section 2(a)(13)(G) of the CEA. A registered

SDR shall set and publish annually the appropriate minimum block size

for each swap instrument as the greater of the numbers derived from two

formulas: A distribution test and a multiple test as described in the

proposal. Additionally, under proposed Sec. 43.5(i), the SDR shall set

the appropriate minimum block size for newly-listed swaps one month

after the registered SDR receives data in accordance with Section

2(a)(13)(G). The registered SDR may set the appropriate minimum block

size for newly-listed swaps by placing them in

[[Page 76170]]

a category of existing swap instrument with an appropriate minimum

block size or by creating a new category of swap instrument and

performing the calculations described in Sec. 43.5(g). The Commission

estimates that proposed requirement will impose 20 annual burden hours

per registered SDR.

Based on the foregoing, the Commission estimates that the aggregate

annual burden hours associated with this requirement under the proposed

Sec. 43.5(g) and (i) will be 300.

3. Information Collection Comments

The Commission invites the public and other Federal agencies to

comment on any aspect of the reporting and recordkeeping burdens

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

requests 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 release in the Federal Register. Consequently, a comment to OMB is

most assured of being fully effective if received by OMB (and the

Commission) within 30 days after publication of this notice of proposed

rulemaking. Nothing in the foregoing affects the deadline enumerated

above for public comment to the Commission on the proposed rules.

C. Regulatory Flexibility Act

The Regulatory Flexibility Act (``RFA'') was adopted to address the

concerns that government regulations may have a significant and/or

disproportionate effect on small businesses. To mitigate this risk, the

RFA requires agencies to conduct an initial and final regulatory

flexibility analysis for each rule of general applicability for which

the agency issues a general notice of proposed rulemaking.\126\ These

analyses must describe the impact of the proposed rule on small

entities, including a statement of the objectives and the legal bases

for the rulemaking; an estimate of the number of small entities to be

affected; identification of federal rules that may duplicate, overlap,

or conflict with the proposed rules; and a description of any

significant alternatives to the proposed rule that would minimize any

significant impacts on small entities.\127\

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\126\ See 5 U.S.C. 601 et seq.

\127\ See 5 U.S.C. 603, 604.

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Proposed part 43 shall affect real-time disseminators (i.e.,

registered SDRs and third-party service providers), SEFs, DCMs, swap

dealers, MSPs and swap end-users that transact with other swap end-

users. The Commission has previously established certain definitions of

``small entities'' to be used by the Commission in evaluating the

impact of its regulations on small entities in accordance with the

RFA.\128\ In its previous determinations, the Commission has concluded

that DCMs are not small entities for the purpose of the RFA.\129\

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\128\ See 5 U.S.C. 601 et seq.

\129\ See 47 FR 18618 (Apr. 30, 1982).

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As registered SDRs and SEFs are new entities to be regulated by the

Commission pursuant to the Dodd-Frank Act, the Commission previously

has not determined whether these entities are ``small entities'' for

the purpose of the RFA. The Commission is proposing to determine that

registered SDRs and SEF covered by these proposed regulations, for

reasons similar to those applicable to DCMs, are not small entities for

purposes of the RFA. Specifically, the Commission proposes that

registered SDRs and SEFs should not be considered small entities based

on, among other things, the central role they will play in the national

regulatory scheme overseeing the trading of swaps. Because they will be

required to accept swaps across asset classes, registered SDRs will

require significant resources to operate. With respect to SEFs, not

only will SEFs play a vital role in the national economy, but they will

be required to operate a self-regulatory organization, subject to

Commission oversight, with statutory duties to enforce the rules

adopted by their own governing bodies. Most of these entities will not

be small entities for the purposes of the RFA.

With respect to swap dealers, the Commission previously has

determined that futures commission merchants (``FCMs'') should not be

considered to be small entities for the purposes of the RFA.\130\ Like

FCMs, swap dealers will be subject to minimum capital and margin

requirements, and are excepted to comprise the largest global financial

firm. Additionally, the Commission is required to exempt from

designation entities that engage in a de minimis level of swaps.\131\

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\130\ See 47 FR 18618 (Apr. 30, 1982).

\131\ See id. at 18619.

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Similarly, with respect to swap dealers and MSPs, the Commission

has previously determined that large traders are not ``small entities''

for RFA purposes. Like large traders, swap dealers and MSPs will

maintain substantial positions, creating substantial counterparty

exposure that could have serious adverse effects on the financial

stability of the United States banking system or financial markets.

Although the regulations will require reporting from a single end-

user transacting in a swap with another end-user, in all other

situations (such as when an end-user engages in a swap with a swap or

MSP), the reporting requirement will be borne by the swap dealer or

MSP. Additionally, most end-users regulated by the Employee Retirement

Income Security Act of 1974 (``ERISA'') \132\ such as pension funds,

which are among the most active end-users in the swap market, are

prohibited from transacting directly with other ERISA-regulated end-

users. The Commission does not believe that the reporting requirements

under this rulemaking will create a significant economic impact on a

substantial number of small entities.

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\132\ See 29 U.S.C. 1106.

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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 impact on a substantial number of small entities.

Nonetheless, the Commission specifically requests comment on the impact

these proposed rules may have on small entities.

List of Subjects in 17 CFR Part 43

Real-time public reporting; block trades; large notional swaps;

reporting and recordkeeping requirements.

[[Page 76171]]

In consideration of the foregoing, and pursuant to the authority in

the Commodity Exchange Act, as amended, and in particular Section

2(a)(13) of the Act, the Commission hereby proposes to amend Chapter I

of Title 17 of the Code of Federal Regulation by adding part 43 as

follows:

PART 43--REAL-TIME PUBLIC REPORTING

Sec.

43.1 Purpose, scope, and rules of construction.

43.2 Definitions.

43.3 Method and timing for real-time public reporting.

43.4 Swap transaction and pricing data to be publicly disseminated

in real-time.

43.5 Block trades and large notional swaps for particular markets

and contracts.

Appendix A to Part 43--Data Fields for Real-Time Public Reporting

Authority: 7 U.S.C. 2(a), 12a(5) and 24a, amended by Pub. L.

111-203, 124 Stat. 1376 (2010).

Sec. 43.1 Purpose, scope and rules of construction.

(a) Purpose. This part sets forth rules relating to the collection

and public dissemination of certain swap transaction and pricing data

to enhance transparency and price discovery.

(b) Scope. (1) The provisions of this part shall apply to all swaps

as defined in Section 1a(47) of the Act and any implementing

regulations therefrom, including:

(i) Swaps subject to the mandatory clearing requirement described

in Section 2(h)(1) of the Act (including those swaps that are excepted

from the requirement pursuant to Section 2(h)(7) of the Act);

(ii) Swaps that are not subject to the mandatory clearing

requirement described in Section 2(h)(1) of the Act, but are cleared at

a registered derivatives clearing organization;

(iii) Swaps that are not cleared at a registered derivatives

clearing organization and are reported to a registered swap data

repository that accepts and publicly disseminates swap transaction and

pricing data in real-time; and

(iv) Swaps that are required to be cleared under Section 2(h)(2) of

the Act, but are not cleared.

(2) This part applies to all swap execution facilities, designated

contract markets, swap data repositories, as well as parties to a swap

including registered or exempt swap dealers, registered or exempt major

swap participants and U.S.-based end-users.

(c) Rules of Construction. The examples in this part and in

appendix A to this part 43 are not exclusive. Compliance with a

particular example or application of a sample clause, to the extent

applicable, constitutes compliance with such portion of the rule to

which the example relates.

Sec. 43.2. Definitions.

As used in this part:

(a) Act means the Commodity Exchange Act, as amended.

(b) Affirmation means the process by which parties to a swap verify

(orally, in writing, electronically or otherwise) that they agree on

the primary economic terms of a swap (but not necessarily all terms of

the swap). Affirmation may constitute ``execution'' of the swap or may

provide evidence of execution of the swap, but does not constitute

confirmation (or confirmation by affirmation) of the swap.

(c) Appropriate minimum block size means the minimum notional or

principal size of a swap instrument that qualifies swaps within such

category of swap instrument as a block trade. The appropriate minimum

block size is calculated by a registered swap data repository or is

prescribed by the Commission.

(d) As soon as technologically practicable means as soon as

possible, taking into consideration the prevalence, implementation and

use of technology by comparable market participants.

(e) Asset class means the broad category of goods, services or

commodities underlying a swap. The asset classes include interest rate,

currency, credit, equity, other commodity and such other asset classes

as may be determined by the Commission.

(f) Block trade means a swap transaction that:

(1) Involves a swap that is made available for trading or execution

on a swap market;

(2) Occurs off the swap market's trading system or platform

pursuant to the swap market's rules and procedures;

(3) Is consistent with the minimum block trade size requirements

set forth in Sec. 43.5; and

(4) Is reported in accordance with the swap market's rules and

procedures and the appropriate time delay set forth in Sec. 43.5(k).

(g) Confirmation means the consummation (electronically or

otherwise) of legally binding documentation (electronic or otherwise)

that memorializes the agreement of the parties to all terms of a swap.

A confirmation must be in writing (whether electronic or otherwise) and

must legally supersede any previous agreement (electronically or

otherwise).

(h) Confirmation by affirmation. The process by which one party to

a swap acknowledges its assent to the complete swap terms submitted by

the other party to the swap. If the parties to a swap are using a

confirmation service vendor, complete swap terms may be submitted

electronically by a party to such vendor's platform and the other party

may affirm such terms on such platform. With the affirmation by one

party to the complete swap terms submitted by the other party, the swap

is legally confirmed and a legally binding confirmation is consummated

(i.e., ``confirmation by affirmation'').

(i) Embedded option means any right, but not an obligation,

provided to one party of a swap by the other party to the same swap

that provides the party in possession of the option with the ability to

change any one or more of the economic terms of the swap as they were

previously established at confirmation (or were in effect on the start

date).

(j) Executed means the completion of the execution process.

(k) Execution means an agreement by the parties (whether orally, in

writing, electronically, or otherwise) to the terms of a swap that

legally binds the parties to such swap terms under applicable law.

Execution occurs immediately following or simultaneous with the

affirmation of the swap.

(l) Large notional swap means a swap transaction that:

(1) Involves a swap that is not available for trading or execution

on a swap market;

(2) Is consistent with the appropriate size requirements for large

notional swaps set forth in Sec. 43.5; and

(3) Is reported in accordance with the appropriate time delay

requirements set forth in Sec. 43.5(k).

(m) Minimum block trade size means the minimum notional or

principal amount, as determined by each swap market, for a block trade

in a particular type of swap that is listed or executed on such swap

market. The minimum block trade size shall be equal to or greater than

the appropriate minimum block size.

(n) Newly-listed swap means a swap that is listed on any swap

market where an appropriate minimum block size has not been published

by a registered swap data repository pursuant to Sec. 43.5.

(o) Novation means the process by which a party to a swap transfers

all of its rights, liabilities, duties and obligations under the swap

to a new legal party other than the counterparty to the swap. The

transferee accepts all

[[Page 76172]]

of the transferor's rights, liabilities, duties and obligations under

the swap. A novation is valid so long as the transferor and remaining

party to the swap are given notice, and the transferor, transferee and

remaining party to the swap consent to the transfer.

(p) Off-facility swap means any reportable swap transaction that is

not executed on or subject to the rules of a swap market.

(q) Other commodity means any commodity that cannot be grouped in

the credit, currency, equity or interest rate asset class categories.

(r) Public dissemination and publicly disseminate means to publish

and make available swap transaction and pricing data in a non-

discriminatory manner, through the Internet or other electronic data

feed that is widely published and in machine-readable electronic

format.

(s) Real-time disseminator means a registered swap data repository

or third-party service provider that accepts swap transaction and

pricing data from multiple data sources and publicly disseminates such

data in real-time pursuant to this part.

(t) Real-time public reporting means the reporting of data relating

to a swap transaction, including price and volume, as soon as

technologically practicable after the time at which the swap

transaction has been executed.

(u) Remaining party means a party to a swap that consents to a

transferor's transfer by novation of all of the transferor's rights,

liabilities, duties and obligations under such swap to a transferee.

(v) Reportable swap transaction means any executed swap, novation,

swap unwind, partial novation or partial swap unwind, or such post-

execution events that affect the pricing of a swap.

(w) Reporting party means the party to a swap with the duty to

report a reportable swap transaction in accordance with this part and

Section 2(a)(13)(F) of the Act.

(x) Social size means the greatest of the mode, median and mean

transaction sizes of a particular swap contract or swap instrument, as

commonly observed in the marketplace.

(y) Swap instrument means a grouping of swaps in the same asset

class with the same or similar characteristics.

(z) Swap market means any registered swap execution facility or

registered designated contract market that makes swaps available for

trading.

(aa) Swap unwind means the termination and liquidation of a swap,

typically followed by a cash settlement between the parties to such

swap.

(bb) Third-party service provider means an entity, other than a

registered swap data repository, that publicly disseminates swap

transaction and pricing data in real-time on behalf of a swap market

or, in the case of an off-facility swap where there is no registered

swap data repository available to publicly disseminate the swap

transaction and pricing data in real-time, on behalf of a reporting

party.

(cc) Transferee means a party to a swap that accepts, by way of

novation, all of a transferor's rights, liabilities, duties and

obligations under such swap with respect to a remaining party.

(dd) Transferor means a party to a swap that transfers, by way of

novation, all of its rights, liabilities, duties and obligations under

such swap, with respect to a remaining party, to a transferee.

(ee) Unique product identifier means a unique identification of a

particular level of the taxonomy of the asset class or sub-asset class

in question, as further described in Sec. 43.4(f) and Sec. 45.4(c) of

this chapter. Such unique product identifier may combine the

information from one or more of the data fields described in appendix A

to this part 43.

(ff) U.S. person means any U.S.-based swap dealer, major swap

participant, eligible contract participant, end-user or other U.S.-

based entity or person that transacts in a swap.

Sec. 43.3 Method and timing for real-time public reporting.

(a) Responsibilities of parties to a swap to report swap

transaction and pricing data in real-time. (1) In general. A reporting

party shall report any reportable swap transaction to a real-time

disseminator as soon as technologically practicable.

(2) Swaps listed or executed on a swap market. (i) For swaps

executed on a swap market's trading system or platform, a reporting

party shall satisfy its reporting requirement under this section by

executing such reportable swap transaction on the swap market.

(ii) For block trades executed pursuant to the rules of a swap

market, the reporting party shall satisfy its reporting requirement by

reporting such trades to the swap market in accordance with the rules

of the swap market and Sec. 43.5.

(3) Off-facility swaps. Except as otherwise provided in Sec. 43.5,

all off-facility swaps shall be reported as soon as technologically

practicable following execution, by the reporting party, to a

registered swap data repository that accepts and publicly disseminates

swap transaction and pricing data in accordance with the rules set

forth in this part. The following persons shall be reporting parties

for off-facility swaps:

(i) If only one party is a swap dealer or major swap participant,

the swap dealer or major swap participant shall be the reporting party.

(ii) If one party is a swap dealer and the other party is a major

swap participant, the swap dealer shall be the reporting party.

(iii) If both parties are swap dealers, the swap dealers shall

designate which party shall be the reporting party.

(iv) If both parties are major swap participants, the major swap

participants shall designate which party shall be the reporting party.

(v) If neither party is a swap dealer nor a major swap participant,

the parties shall designate which party (or its agent) shall be the

reporting party.

(4) Special rules when no registered swap data repository will

accept and publicly disseminate data. If no registered swap data

repository is available to accept and publicly disseminate swap

transaction and pricing data, the reporting party of an off-facility

swap may satisfy the real-time public reporting requirement under this

part by publicly disseminating such data through a third-party service

provider in the same manner that a swap market may report through a

third-party service provider.

(b) Public dissemination of swap transaction and pricing data. (1)

Reportable swap transactions executed on a swap market. (i) A swap

market shall publicly disseminate all swap transaction and pricing data

for swaps executed thereon, as soon as technologically practicable

after the swap has been executed. A swap market shall satisfy this

public dissemination requirement by either sending or otherwise

electronically transmitting swap transaction information to a

registered swap data repository that accepts and publicly disseminates

swap transaction and pricing data or by publicly disseminating swap

transaction information through a third-party service provider for

public dissemination.

(ii) A swap market that sends swap transaction information to a

third-party service provider to publicly disseminate such data in real-

time does not satisfy its requirements under this section until such

data is publicly disseminated pursuant to this part.

(2) Prohibition of disclosure of data prior to sending data to a

real-time disseminator.

(i) No swap market or reporting party shall disclose swap

transaction and pricing data prior to the public

[[Page 76173]]

dissemination of such data by a real-time disseminator.

(ii) Notwithstanding the disclosure prohibition of Sec.

43.5(b)(2)(i), a swap market may disclose swap transaction and pricing

data available to participants on its market prior to the public

dissemination of such data, provided that such disclosure is made no

earlier than the disclosure of such data to a real-time disseminator

for public dissemination.

(iii) Notwithstanding the disclosure prohibition of Sec.

43.5(b)(2)(i), a swap dealer may disclose swap transaction and pricing

data for off-facility swaps available to its customer base prior to the

public dissemination of such data, provided that such disclosure is

made no earlier than the disclosure of such data to a registered swap

data repository that accepts swap transaction and pricing data for

public dissemination.

(c) Requirements for registered swap data repositories in providing

the real-time public dissemination of swap transaction and pricing

data. (1) Compliance with part 49 of this chapter. Any registered swap

data repository that accepts and publicly disseminates swap transaction

and pricing data in real-time shall comply with part 49 of this chapter

and shall publicly disseminate swap transaction and pricing data as

soon as technologically practicable upon receipt of such data, unless

the data is subject to a time delay in accordance with Sec. 43.5.

(2) Acceptance of all swaps in an asset class. Any registered swap

data repository that accepts and publicly disseminates swap transaction

and pricing data in real-time for swaps in its selected asset class

shall accept and publicly disseminate swap transaction and pricing data

in real-time for all swaps within such asset class.

(3) Annual independent review. Any registered swap data repository

that accepts and publicly disseminates swap transaction and pricing

data in real-time shall perform, on an annual basis, an independent

review in accordance with established audit procedures and standards of

the registered swap data repository's security and other system

controls for the purposes of ensuring compliance with the requirements

in this part.

(d) Requirements if a swap market publicly disseminates through a

third-party service provider. If a swap market chooses to publicly

disseminate swap transaction and pricing data in real-time through a

third-party service provider, such swap market shall --

(1) Ensure that any such third-party service provider that publicly

disseminates the swap market's swap transaction and pricing data in

real-time does so in a manner that complies with those standards for

registered swap data repositories described in this part.

(2) Ensure that the Commission has access to any such swap

transaction and pricing data, through either the swap market or via

direct access to the third-party service provider.

(e) Availability of swap transaction and pricing data to the

public. Registered swap data repositories shall publicly disseminate

swap transaction and pricing data in such a format that may be

downloaded, saved and/or analyzed.

(f) Errors or omissions. (1) In general. Any errors or omissions in

swap transaction and pricing data that were publicly disseminated in

real-time shall be corrected or cancelled in the following manner:

(i) If a party to the swap that is not the reporting party becomes

aware of an error or omission in the swap transaction and pricing data

reported with respect to such swap, such party shall promptly notify

the reporting party of the correction.

(ii) If the reporting party to a swap becomes aware of an error or

omission in the swap transaction and pricing data which it reported to

a swap market or real-time disseminator with respect to such swap,

either through its own initiative or through notice by the other party

to the swap, the reporting party shall promptly submit corrected data

to the same swap market or real-time disseminator.

(iii) If the swap market becomes aware of an error or omission in

the swap transaction and pricing data reported with respect to such

swap, or receives notification from the reporting party, the swap

market shall promptly submit corrected data to the same real-time

disseminator.

(iv) Any registered swap data repository that accepts and publicly

disseminates swap transaction and pricing data in real-time shall

publicly disseminate any cancellations or corrections to such data, as

soon as technologically practicable after receipt or discovery of any

such cancellation or correction.

(2) Improper cancellation or correction. Reporting parties, swap

markets and registered swap data repositories that accept and publicly

disseminate swap transaction and pricing data in real-time shall not

submit or agree to submit a cancellation or correction for the purpose

of re-reporting swap transaction and pricing data in order to gain or

extend a delay in publication or to otherwise evade the reporting

requirements in this part.

(3) Cancellation. A registered swap data repository that accepts

and publicly disseminates swap transaction and pricing data in real-

time shall cancel any incorrect data that had been publicly

disseminated, by publicly disseminating a cancellation of such data, in

the manner and format described in Appendix A to this part.

(4) Correction. A registered swap data repository that accepts and

publicly disseminates swap transaction and pricing data in real-time

shall correct any incorrect data that had been publicly disseminated to

the public, by publicly disseminating a cancellation of the incorrect

swap transaction and pricing data and then publicly disseminating the

correct data, as soon as technologically practicable, in the manner and

format described in Appendix A to this part.

(g) Hours of operation. A registered swap data repository that

accepts and publicly disseminates swap transaction and pricing data in

real-time:

(1) Shall maintain hours of operation to receive and publicly

disseminate swap transaction and pricing data at all times, twenty-four

hours a day;

(2) May declare, on an ad hoc basis, special closing hours to

perform system maintenance and shall provide reasonable advance notice

of its special closing hours to market participants and to the public;

and

(3) Shall, to the extent reasonably possible under the

circumstances, avoid scheduling special closing hours when, in its

estimation, the U.S. market and major foreign markets are most active.

(h) Acceptance of data during special closing hours. During special

closing hours, a registered swap data repository that accepts and

publicly disseminates swap transaction and pricing data in real-time

shall have the capability to receive and hold in queue information

regarding reportable swap transactions pursuant to this part.

(i) Recordkeeping. All data related to a reportable swap

transaction shall be maintained for a period of not less than five

years following the time at which such reportable swap transaction is

publicly disseminated pursuant to this part.

(1) Retention of data by a swap market. Any swap market and any

registered swap data repository that accepts and publicly disseminates

swap transaction and pricing data in real-time shall retain all swap

transaction information that is received from reporting parties for

public dissemination, including data related to block trades and large

notional swaps and information that is received by a swap market or by

a registered swap

[[Page 76174]]

data repository that accepts and publicly disseminates swap transaction

and pricing data in real-time but is not publicly reported pursuant to

Sec. 43.4(c).

(2) Retention of data by a swap dealer or major swap participant.

In accordance with this part and part 23 of this chapter, a swap dealer

or major swap participant shall retain all data relating to a

reportable swap transaction that such swap dealer or major swap

participant sends to a swap market or a registered swap data repository

that accepts and publicly disseminates such data in real-time or that

such swap dealer or major swap participant retains in accordance with

Sec. 43.5.

(j) Fees. Any fees or charges assessed on a reporting party or swap

market by a registered swap data repository that accepts and publicly

disseminates swap transaction and pricing data in real-time for the

collection of such data must be equitable and non-discriminatory. If

such registered swap data repository allows a discount based on the

volume of data reported to it for public dissemination, such discount

shall be provided to all reporting parties and swap markets

impartially.

Sec. 43.4 Swap transaction and pricing data to be publicly

disseminated in real-time.

(a) In general. Swap transaction information shall be reported to a

real-time disseminator so that the real-time disseminator can publicly

disseminate swap transaction and pricing data in real-time in

accordance with this part, including the manner and format requirements

described in appendix A to this part 43 and this section.

(b) Public dissemination of data fields. Any registered swap data

repository that accepts and publicly disseminates swap transaction and

pricing data in real-time shall publicly disseminate the information in

the data fields described in appendix A to this part.

(c) Additional swap information. A registered swap data repository

that accepts and publicly disseminates swap transaction and pricing

data in real-time may require reporting parties and swap markets to

report to such registered swap data repository, such information that

is necessary to match the swap transaction and pricing data that was

publicly disseminated in real-time to the data reported to a registered

swap data repository pursuant to Section 2(a)(13)(G) of the Act or to

confirm that parties to a swap have reported in a timely manner

pursuant to Sec. 43.3. Such additional information shall not be

publicly disseminated by the registered swap data repository that

accepts and publicly disseminates swap transaction and pricing data in

real-time on a transactional or aggregate basis.

(d) Amendments to data fields. The Commission may determine from

time to time to amend the data fields described in appendix A to this

part.

(e) Anonymity of the parties to a swap transaction. (1) In general.

Swap transaction and pricing data that is publicly disseminated in

real-time may not disclose the identities of the parties to the swap. A

registered swap data repository that accepts and publicly disseminates

such data in real-time may not do so in a manner that discloses or

otherwise facilitates the identification of a party to a swap.

(2) Use of general description. Reporting parties and swap markets

shall provide a registered swap data repository that accepts and

publicly disseminates swap transaction and pricing data in real-time

with a specific description of the underlying asset(s) and tenor of the

swap; this description must be general enough to provide anonymity but

specific enough to provide for a meaningful understanding of the

economic characteristics of the swap. This requirement is separate from

the requirement that a reporting party must report swap data to a

registered swap data repository pursuant to Section 2(a)(13)(G) of the

Act. If a swap dealer or major swap participant does not report the

exact description of the underlying asset(s) or tenor for the purposes

of real-time reporting pursuant to this part, because such exact

description would facilitate the identity of a party to a swap, such

swap dealer or major swap participant must comply with the related

documentation and recordkeeping requirements described in Part 23 of

this chapter.

(f) Unique product identifier. If a unique product identifier is

developed that sufficiently describes one or more swap transaction and

pricing data fields for real-time reporting described in appendix A to

this part, then such unique product identifier may be used in lieu of

the data fields that it describes.

(g) Price forming continuation data. Any swap-specific event

including, but not limited to novations, swap unwinds, partial

novations, and partial swap unwinds, that occurs during the life of a

swap and affects the price of such swap shall be publicly disseminated

pursuant to this part.

(h) Reporting of notional or principal amount. (1) Off-facility

swaps. The actual notional or principal amount for any off-facility

swap shall be reported by the reporting party to the registered swap

data repository that accepts and publicly disseminates such data in

real-time.

(2) Swaps executed on or pursuant to the rules of a swap market.

The actual notional or principal amount for any block trade executed

pursuant to the rules of a swap market shall be reported by the

reporting party to the swap market. A swap market shall transmit the

actual notional amount for all swaps executed on or pursuant to its

rules to the real-time disseminator.

(i) Public dissemination of notional or principal amount. The

notional or principal amount data fields described in Appendix A to

this Part 43 shall be publicly disseminated as follows:

(1) If the notional or principal amount is less than 1 million,

round to nearest 100 thousand;

(2) If the notional or principal amount is less than 50 million but

greater than 1 million, round to the nearest million;

(3) If the notional or principal amount is less than 100 million

but greater than 50 million, round to the nearest 5 million;

(4) If the notional or principal amount is less than 250 million

but greater than 100 million, round to the nearest 10 million;

(5) If the notional or principal amount is greater than 250

million, round to ``250+''.

Sec. 43.5 Block trades and large notional swaps for particular

markets and contracts.

(a) In general. The provisions in this Sec. 43.5 shall apply to

both block trades on swaps and large notional swaps.

(b) Eligible block trade or large notional swap parties. (1) In

general. Parties to a block trade or large notional swap must be

``eligible contract participants'' as defined in Section 1a(18) of the

Act. However, a designated contract market may allow a commodity

trading advisor acting in an asset managerial capacity and registered

pursuant to Section 4n of the Act, or a principal thereof, including

any investment advisor who satisfies the criteria of Sec. 4.7(a)(2)(v)

of this chapter, or a foreign person performing a similar role or

function and subject as such to foreign regulation, to transact block

trades for customers who are not eligible contract participants, if

such commodity trading advisor, investment advisor or foreign person

has more than $25,000,000 in total assets under management. A person

transacting a block trade on behalf of a customer must receive written

instruction or prior consent from the customer to do so.

(2) Election to be treated as a block trade or large notional swap.

Parties to a swap of a large notional value shall elect to have the

swap treated as a block

[[Page 76175]]

trade or large notional swap. Any reporting party or swap market shall

indicate such election to a real-time disseminator.

(c) Block trades on swaps. (1) A swap market that permits block

trades must have rules that specify the minimum size of such block

trades pursuant to this section.

(2) The reporting party of a block trade shall report the block

trade transaction and pricing data to the swap market, as soon as

technologically practicable after execution of the block trade and

pursuant to the rules of such swap market.

(3) The swap market shall transmit block trade transaction and

pricing data to a real-time disseminator as soon as technologically

practicable after receipt of such data. Such information shall not be

publicly disseminated until the expiration of the appropriate time

delay described in Sec. 43.5(k).

(d) Large notional swaps. A registered swap data repository that

accepts and publicly disseminates swap transaction and pricing data in

real-time shall not publicly report the large notional swap transaction

and pricing data until the expiration of the appropriate time delay

described in Sec. 43.5(k). Immediately upon expiration of the

appropriate time delay, the registered swap data repository that

accepts and publicly disseminates swap transaction and pricing data in

real-time must publicly disseminate the large notional swap transaction

and pricing data.

(e) Off-facility swaps in which neither counterparty is a swap

dealer or a major swap participant. Off-facility swaps in which neither

counterparty is a swap dealer or a major swap participant may qualify

as large notional swaps. Parties to such transactions shall follow the

requirements for large notional swaps in Sec. 43.5.

(f) Time-stamp and reporting requirements for block trades and

large notional swaps. In addition to the requirements under Sec. 43.4

and appendix A to this part, a swap market and a registered swap data

repository that accepts and publicly disseminates swap transaction and

pricing data in real-time shall have the following additional time-

stamp requirements with respect to block trades and large notional

swaps:

(1) A swap market shall time-stamp swap transaction and pricing

data with the date and time, to the nearest second of when such swap

market:

(i) Receives data from a reporting party; and

(ii) Transmits such data to a real-time disseminator.

(2) A registered swap data repository that accepts and publicly

disseminates swap transaction and pricing data in real-time shall time-

stamp such data with the date and time, to the nearest second when such

swap data:

(i) Is received from a swap market or reporting party; and

(ii) Is publicly disseminated.

(3) All records relating to the time-stamps required by this

section shall be maintained for a period of at least five years from

the execution of the block trade or large notional swap.

(g) Responsibilities of registered swap data repositories in

determining appropriate minimum block size.

(1) In general. A registered swap data repository shall determine

the appropriate minimum block size for swaps for which such registered

swap data repository receives data in accordance with Section

2(a)(13)(G) of the Act. A registered swap data repository shall set the

appropriate minimum block size for each swap instrument as the greater

of the numbers derived from the distribution test and the multiple test

described in this paragraph. To qualify as a block trade, the notional

or principal amount of the swap must be equal to or greater than the

appropriate minimum block size.

(i) Distribution test. To apply the distribution test to a swap

instrument, a registered swap data repository shall apply the minimum

threshold to the distribution of the notional or principal transaction

amounts, each as set forth in this paragraph.

(A) In determining the distribution of the notional or principal

transaction amounts of a swap instrument, a registered swap data

repository shall evaluate the transaction sizes, rounded in the manner

discussed in Sec. 43.4(i), for all swaps within a category of swap

instrument, by looking at swaps within the category of swap instrument

that are executed: on all swap execution facilities; on all designated

contract markets; and as off-facility swaps. Registered swap data

repositories may also consider other economic information to establish

the total market size of a category of swap instrument, in consultation

with the Commission.

(B) The minimum threshold shall be a notional or principal amount

that is greater than 95% of the notional or principal transaction sizes

in a swap instrument during the applicable period of time, as

represented by the distribution of the notional or principal

transaction amounts for such swap.

(ii) Multiple test. To apply the multiple test to a swap

instrument, a registered swap data repository shall multiply the block

multiple by the social size, as described in this paragraph.

(A) In determining the social size for a swap instrument, the

registered swap data repository shall calculate the mode, mean and

median transaction sizes for all swaps in the category of swap

instrument and choose the greatest of the mode, mean and median

transaction sizes.

(B) For all swaps, the block multiple shall be five.

(2) Initial determination of appropriate minimum block size for

newly-listed swaps. A registered swap data repository shall make its

initial determination of the appropriate minimum block size for a

newly-listed swap one month after such newly-listed swap is first

executed and reported to the registered swap data repository. Such

registered swap data repository may make such a determination by:

(i) Grouping a newly-listed swap into an existing category of swap

instrument for which the registered swap data repository has already

determined an appropriate minimum block size; or

(ii) Creating a new category of swap instrument for the newly-

listed swap and calculating the appropriate minimum block size based on

the previous month's data.

(3) Publication of appropriate minimum block sizes. A registered

swap data repository shall publish the appropriate minimum block sizes

on its Internet Web site for all swap instruments. Additionally, a

registered swap data repository shall publish the types of swaps that

fall within a particular category of swap instrument, for which the

registered swap data repository has received data on its Internet Web

site. The appropriate minimum block size information and swap

instrument information on the registered swap data repository's

Internet Web site must be available to the public in an open and non-

discriminatory manner.

(4) Annual update. A registered swap data repository shall each

year beginning in January 2012, publish and update the appropriate

minimum block sizes for the swap instruments for which the registered

swap data repository accepts data. Any such updates must be posted on

the registered swap data repository's Internet Web site by the tenth

business day of each year. The registered swap data repository shall

calculate the appropriate minimum block size based on the data that it

has received over the previous year. If a registered swap data

repository has received data for a category of swap instrument for less

than one year, the appropriate minimum block size shall be calculated

based on such data.

[[Page 76176]]

(5) Appropriate minimum block size determination when more than one

registered swap data repository. If more than one registered swap data

repository maintains data for a swap instrument, then the Commission

shall prescribe the manner in which the appropriate minimum block trade

size shall be determined.

(h) Responsibilities of swap markets in determining minimum block

trade sizes. For any swap listed on a swap market, the swap market

shall set the minimum block trade size. Swap markets must set the

minimum block trade sizes for all listed contracts at levels greater

than or equal to the appropriate minimum block sizes posted on the swap

data repositories' Internet Web sites. Swap markets shall immediately

apply any change to the minimum block trade size of a listed swap

following the posting of a new or adjusted appropriate minimum block

size on a registered swap data repository's Internet Web site, pursuant

to the requirements set forth in part 40 of this chapter. If a swap

listed on a swap market does not have an appropriate minimum block

size, such swap market shall apply the rules set forth in Sec.

43.5(i).

(i) Minimum block trade size determination for newly-listed swaps.

For any newly-listed swap, the swap market that lists the swap for

trading shall set the minimum block trade size.

(1) If a newly-listed swap is within the parameters of a category

of swap instrument for which a registered swap data repository has

posted an appropriate minimum block size, the swap market shall set the

minimum block size for such newly listed swap at a level equal to or

greater than such appropriate minimum block size.

(2) In determining the minimum block trade size for a newly-listed

swap that is not within an existing category of swap instrument, swap

markets shall take into account:

(i) The anticipated distribution of notional or principal

transaction amounts;

(ii) The social size for swaps in other markets that are in

substance the same as such newly-listed swap; and

(iii) The minimum block trade sizes of similar swaps in the same

asset class.

(3) In determining the minimum block trade size for a newly-listed

swap that is not within an existing category of swap instrument, the

swap market that lists the swap must ensure that the notional or

principal amount selected represents a reasonable estimate of the

greater of:

(i) A notional or principal amount that is greater than all but 95%

of the anticipated distribution of notional or principal transaction

amounts over the one month period immediately following the first

execution of the swap; or

(ii) Five times the anticipated social size over the one month

period immediately following the first execution of the swap.

(j) Responsibilities of the parties to a swap in determining the

appropriate minimum large notional swap size. (1) The parties to a

large notional swap shall be responsible for determining the category

of existing swap instrument in which such swap should be included. Once

the category of existing swap instrument is identified by the parties

to the swap, the parties shall refer to the appropriate minimum block

size that is associated with such existing swap instrument and made

available to the public on the appropriate registered swap data

repository's Internet Web site, or as otherwise prescribed by the

Commission. The notional or principal amount of the swap must be equal

to or greater than the appropriate minimum block size of the swap

instrument in order to qualify as a large notional swap. If there is

not a swap instrument with an appropriate minimum block size available

to reference, then such swap between the parties shall not qualify as a

large notional swap or for any time delay in reporting. In determining

the appropriate swap instrument, the following factors shall be

documented--

(i) The similarities of the terms of the swap between the parties

compared to the terms of swaps that are grouped within the existing

swap instrument; and

(ii) Other swaps listed on swap markets that are grouped within an

existing category of swap instrument.

(2) To the extent that the parties to a large notional swap are

swap dealers and/or major swap participants, such parties shall

maintain records illustrating the basis for the selection of the swap

instrument for the large notional swap pursuant to part 23 of this

chapter. Such records shall be made available to the Commission upon

request.

(3) In the event that the parties to a swap seek to qualify such

swap as a large notional swap, but are unable to determine, identify or

agree on the appropriate swap instrument to refer to, such swap shall

not qualify as a large notional swap and shall not qualify for any time

delay in reporting.

(k) Time delay in the real-time public reporting of block trades

and large notional swaps. (1) In general. The time delay for the real-

time public reporting of a block trade or large notional swap begins

upon execution. It is the responsibility of the registered swap data

repository that accepts and publicly disseminates swap transaction and

pricing data in real-time to ensure the block trade or large notional

swap transaction and pricing data is publicly disseminated following

the appropriate time delay described in this section.

(2) Time delay for standardized block trades and large notional

swaps. The block trade or large notional swap transaction and pricing

data shall be reported to the public by the swap market (through a

third-party service provider) or registered swap data repository that

accepts and publicly disseminates such data within 15 minutes of the

time of execution reflected in the data. This provision covers all

swaps under Sections 2(a)(13)(C)(i) and (iv) of the Act.

(3) Time delay for customized large notional swaps. The large

notional swap transaction and pricing data shall be reported to the

public by the registered swap data repository that accepts and publicly

disseminates such data subject to a time delay as may be prescribed by

the Commission. This provision covers all swaps under Sections

2(a)(13)(C)(ii) and (iii) of the Act.

(l) Data to be reported to the public. With respect to block trades

and large notional swaps, all information in the data fields described

in appendix A to this part and Sec. 43.4 shall be disseminated to the

public.

(m) Aggregation. Except as otherwise stated in this paragraph, the

aggregation of orders for different accounts in order to satisfy the

minimum block trade size requirement is prohibited. Aggregation is

permissible if done by a commodity trading advisor acting in an asset

managerial capacity and registered pursuant to Section 4n of the Act,

or a principal thereof, including any investment advisor who satisfies

the criteria of Sec. 4.7(a)(2)(v) of this chapter, or a foreign person

performing a similar role or function and subject as such to foreign

regulation, if such commodity trading advisor, investment advisor or

foreign person has more than $25,000,000 in total assets under

management.

Appendix A to Part 43--Data Fields for Real-Time Public Reporting

The data fields described in Table A1 and Table A2, to the

extent applicable for a particular reportable swap transaction,

shall be real-time reported to the public. Table A1 and Table A2

provide guidance and examples for compliance with the reporting of

each data field.

[[Page 76177]]

Table A1--Data Fields and Suggested Form and Order for Real-Time Public Reporting of Swap Transaction and

Pricing Data

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

Field Description Example Data application

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

Cancellation...................... An indication that a CANCEL............... Information is needed to

reportable swap inform market

transaction has been participants and the

incorrectly or public that swap

erroneously reported and transaction and pricing

is canceled. There shall data was erroneously

be a clear indication to disseminated to the

the public that the public.

reportable swap

transaction is being

canceled (e.g.,

``CANCEL'') followed by

the swap transaction and

pricing data that is

being canceled same form

and manner that it was

erroneously reported. Any

cancellations should be

made in accordance with

Sec. 43.3(f).

If a reportable swap

transaction is canceled,

it may be corrected by

reporting the

``Correction'' data field

and the correct

information.

Correction........................ An indication that the CORRECT.............. Information needed to

swap transaction and inform market

pricing data that is participants and the

being reported is a public that a particular

correction to previously reportable swap

publicly disseminated transaction that is

swap transaction and being reported is a

pricing data that correction to swap

contained an error or transaction and pricing

omission. In order for a data that has been

correction to occur, the publicly disseminated by

registered swap data a real-time

repository that accepts disseminator.

and publicly disseminates

swap transaction and

pricing data shall first

cancel the incorrectly

reported swap transaction

and pricing data and the

follow such cancellation

with the correction.

There shall be a clear

indication to the public

that the swap transaction

and pricing data that is

being reported is a

correction (e.g.,

``CORRECT''). Any

corrections should be

made in accordance with

Sec. 43.3(f).

Date stamp........................ The date of execution of 13-10-07............. Information needed to

the reportable swap indicate the date of

transaction. The date execution of the

shall be displayed with reportable swap

two digits for day, transaction (if not the

month, and year. The date same day).

stamp shall be reported

only when the reportable

swap transaction is

executed on a day other

than the current day or

if the reportable swap

transaction is a

correction or

cancellation.

Execution time-stamp.............. The time of execution of 15:25:47............. Information needed to

the reportable swap indicate the time of

transaction in execution of the

Coordinated Universal reportable swap

Time (UTC). The time- transaction.

stamp shall be displayed

with two digits for each

of the hour, minute and

second.

Cleared or uncleared.............. An indication of whether C.................... Information needed to

or not a reportable swap indicate whether or not

transaction is cleared by a reportable swap

a derivatives clearing transaction is cleared

organization. If the through a derivatives

reportable swap clearing organization.

transaction is cleared by

a derivatives clearing

organization, a ``C'' may

be used and if uncleared

a ``U'' may be used.

Alternatively, the

entirety of the data

fields reported to the

public for the reportable

swap transaction may be

color coded white if the

swap is cleared by a

derivatives clearing

organization and red if

the reportable swap

transaction is uncleared.

Indication of other price An indication that the B*................... Information needed to

affecting term (non-standardized reportable swap indicate whether a

swaps). transaction has one or reportable swap

more additional term(s) transaction is non-

or provision(s), other standardized (bespoke)

than those listed in the and to inform the public

required real-time data that there are one or

fields, that materially more additional term(s)

affect(s) the price of or provision(s) that

the reportable swap materially affect the

transaction. Reportable price of the reportable

swap transactions that swap transaction.

are reported with this

designation would be non-

standardized (bespoke)

swaps.

[[Page 76178]]

Some common material price

affecting terms may

include counterparty

credit, collateral, day

count fraction, changing

notional amount, etc. A

``B*'' may be used to

indicate that a

reportable swap

transaction has a

material price affecting

term that is not

otherwise shown..

Block trades and large notional An indication of whether a BLK.................. Information needed to

swaps. reportable swap indicate whether a

transaction is a block reportable swap

trade or large notional transaction is a block

swap. If a reportable trade or a large

swap transaction is a notional swap. This

block trade or a large information is important

notional swap and subject since it will alert

to a time delay in real- market participants and

time public reporting the public to the

pursuant to Sec. 43.5, differences in notional

such block trade or large or principal amount and

notional swap may be the time delay in real-

indicated as follows: time reporting the swap

block trade or large transaction and pricing

notional swap (``BLK''). data.

If a trade is not a block

trade or large notional

swap, then this field may

be left blank.

Execution venue................... An indication of the venue OFF.................. Information needed to

of execution of a indicate whether a

reportable swap reportable swap

transaction. Such transaction is executed

indication may be on a swap market, as an

indicated with a three off-facility swap, or as

character reference code a block trade or large

as follows: reportable notional swap.

swap transaction executed

on or pursuant to the

rules of a swap market

(SWM) or an off-facility

swap (OFF).

Swap instrument................... A description of the SWI-ST-USD-IRS (e.g., Information needed to

instrument used to short term USD understand what swap

determine the appropriate interest rate swaps). instrument was used by

minimum block size for the parties to a block

block trades and large trade or large notional

notional swaps. The swap swap to determine the

instrument may be appropriate minimum

reported with the letters block trade size that

``SWI'' followed by the was relied on to delay

description of the swap reporting pursuant to

instrument. The swap Sec. 43.5.

instrument should be

described in such a

manner that it is clear

to market participants

and the public what is

being reported. If there

is no swap instrument,

then ``NA'' may be

reported.

Start date........................ The date that the 20-02-09............. Information needed to

reportable swap indicate when the terms

transaction becomes of the reportable swap

effective or starts. The transaction become

effective date shall be effective or start.

displayed with two digits

for day, month, and year.

If a standardized start

date is established for a

particular swap, for

example, the start date

is always T+1 for a

particular swap contract

or the start date is

standardized to start on

a given date in the

future (e.g., the first

of the following month),

this field may not be

necessary.

Asset class....................... An indication of one of IR................... Information needed to

the five broad categories broadly describe the

as described in Sec. underlying asset to

43.2(e). Reportable swap facilitate comparison

transactions may be with other similar

reported in the following reportable swap

asset classes with an transactions.

appropriate two character

symbol: interest rate

(IR), currency (CU),

credit (CD), equity (EQ),

other commodity (CO)..

Sub-asset class for other An indication of a more AG (agriculture swap) Information needed to

commodity. specific description of define with greater

the asset class for other specificity, the type of

commodity. Such sub-asset other commodity that is

classes for other being real-time reported

commodity reportable swap and to facilitate

transactions may include, comparison with other

but are not limited to, similar reportable swap

energy, precious metals, transactions.

metals--other,

agriculture, weather,

emissions and volatility.

The sub-asset class may

be reported with an

appropriate two character

symbol (e.g., energy

(EN)).

Contract type..................... An indication of one of S-................... Information needed to

four specific contract describe the reportable

types of reportable swap swap transaction and to

transactions. The be able to compare such

following product types reportable swap

shall be reported with an transaction to other

appropriate two character similar reportable swap

symbol: swap (S-), transactions.

swaption (SO), forward

(FO) and stand-alone

options (O-).

[[Page 76179]]

Contract sub-type................. An indication of more SS (basis swap)...... Information needed to

specificity into the type define with greater

of contract described in specificity, the type of

the contract type field. contract that is being

Such contract sub-types real-time reported and

may include, but are not to facilitate comparison

limited to, basis swaps, with other similar

index swaps, broad based reportable swap

security swaps, and transactions.

basket swaps. The

contract sub-type may be

reported with an

appropriate two character

symbol (e.g., basket swap

(SK)).

Price-forming continuation data... An indication of whether PN................... Information needed to

such reportable swap describe whether the

transaction is a post- reportable swap

execution event that transaction is a post-

affects the price of the execution event for a

reportable swap pre-existing swap (i.e.,

transaction. The not a newly executed

following price-forming swap) that materially

continuation data may be affects the price of the

reported with a reportable swap

designation as follows: transaction.

novation (N-), partial

novation (PN), swap

unwind (U-), partial swap

unwind (PU), other price-

forming continuation data

(PF).

Underlying asset 1................ The asset, reference asset TX (e.g., TX Information needed to

or reference obligation represents describe the reportable

for payments of a party's ``Treasury 10 swap transaction and to

obligations under the year''). help market participants

reportable swap and the public evaluate

transaction reference. the price of the

The underlying asset may reportable swap

be a reference price, transaction.

index, obligation,

physical commodity with

delivery point, futures

contract or any other

instrument agreed to by

the parties to a

reportable swap

transaction.

Reporting entities may

refer to Sec. 43.4(e)

when reporting underlying

asset.

Underlying asset 2................ The asset, reference asset IIIL (e.g., IIIL Information needed to

or reference obligation represents 3-month describe the reportable

for payments of a party's LIBOR). swap transaction and to

obligations under the help market participants

reportable swap and the public evaluate

transaction reference. the price of the

The underlying asset may reportable swap

be a reference price, transaction.

index, obligation,

physical commodity with

delivery point, futures

contract or any other

instrument agreed to by

the parties to a

reportable swap

transaction..

Reporting entities may

refer to Sec. 43.4(e)

when reporting underlying

asset..

If there are more than two

underlying assets, such

underlying assets shall

be reported in the same

manner as above.

Price notation.................... The premium, yield, spread 2.53................. Information needed to

or rate, depending on the describe the reportable

type of swap, that is swap transaction and to

calculated at affirmation help market participants

and nets to a present and the public evaluate

value of zero at the price of the

execution. The pricing reportable swap

characteristic shall not transaction.

include any premiums

associated with margin,

collateral, independent

amounts, reconcilable

post-execution events,

options on a swap, or

other non-economic

characteristics. The

format in which the

pricing characteristic is

real-time reported to the

public shall be the

format commonly sought by

market participants for

each particular market or

contract.

Additional price notation......... The additional pricing +0.25................ Additional information

characteristic shall needed to describe the

include any premiums reportable swap and to

associated with margin, help market participants

collateral, independent and the public evaluate

amounts, reconcilable the price of the

post-execution events, reportable swap

front end payments, back transaction.

end payments, or other

non-economic

characteristics not

illustrated in the

reporting field for

pricing characteristic.

The additional pricing

characteristic shall not

include options as they

are reported elsewhere.

The format in which the

additional pricing

characteristic is real-

time reported to the

public shall be as an

addition or subtraction

of the pricing

characteristic and in a

way commonly sought by

market participants for

each particular market or

contract.

[[Page 76180]]

Unique product identifier......... Certain fields may be To be determined..... Information needed to

replaced with a unique describe the reportable

product identifier, if swap transaction and for

such unique identifier market participants and

exists, to the extent the public to be able to

that such unique product compare such reportable

identifier adequately swap transaction to

describes such fields.. other similar reportable

swap transactions. Such

information would

substitute the

information described in

one or more reportable

fields in accordance

with Sec. 43.4.

Notional currency 1............... An indication of the type EUR.................. Information needed to

of currency that the describe the type of

notional amount is in. currency of the notional

The notional currency may amount.

be reported in a commonly

accepted code (e.g., the

three character

alphabetic ISO 4217

currency code).

Notional or principal amount 1.... The total currency amount 200.................. Information needed to

or quantity of units of identify the size of the

the underlying asset. The reportable swap

notional or principal transaction and to help

amounts for reportable evaluate the price of

swap transactions, the reportable swap

including block trades transaction.

and large notional swaps

shall be reported

pursuant Sec. 43.4.

Notional currency 2............... An indication of the type USD.................. Information needed to

of currency that the describe the type of

notional amount is in. currency of the notional

The notional currency may amount.

be reported in a commonly

accepted code (e.g., the

three character

alphabetic ISO 4217

currency code).

Notional or principal amount 2.... The total currency amount 45................... Information needed to

or quantity of units of identify the size of the

the underlying asset. The reportable swap

notional or principal transaction and to help

amounts for reportable market participants and

swap transactions, the public evaluate the

including block trades price of the reportable

and large notional swaps, swap transaction.

shall be reported

pursuant to Sec. 43.4.

Each notional or principal

amount (if there is more

than one) should be

labeled with a number

(e.g., 1, 2, 3, etc.)

such that the number

corresponds to the

underlying asset for

which the notional or

principal amount is

applicable.

If there are more than two

notional or principal

amounts, each such

additional notional or

principal amount shall be

reported in the same

manner.

Payment frequency 1............... An integer multiplier of a 2M................... Information needed to

time period describing identify the pricing

how often the parties to characteristic of the

the reportable swap reportable swap

transaction exchange transaction and to help

payments associated with market participants and

each party's obligation the public evaluate the

under the reportable swap price of the reportable

transaction. Such payment swap transaction.

frequency may be

described as one letter

preceded by an integer.

Such letter convention

may be reported as

follows: D (daily), W

(weekly), M (monthly), Y

(yearly).

Payment frequency 2............... An integer multiplier of a 6W................... Information needed to

time period describing identify the pricing

how often the parties to characteristic of the

the reportable swap reportable swap

transaction exchange transaction and to help

payments associated with market participants and

each party's obligation the public evaluate the

under the reportable swap price of the reportable

transaction. Such payment swap transaction.

frequency may be

described as one letter

preceded by an integer.

Such letter convention

may be reported as

follows: D (daily), W

(weekly), M (monthly), or

Y (yearly).

Each payment frequency (if

there is more than one)

should be labeled with a

number (e.g., 1, 2, 3,

etc.) such that the

number corresponds to the

underlying asset for

which the payment

frequency is applicable.

If there are more than two

payment frequency, each

such additional payment

frequency shall be

reported in the same

manner.

[[Page 76181]]

Reset frequency 1................. An integer multiplier of a 1Y................... Information needed to

period describing how identify the pricing

often the parties to the characteristic of the

reportable swap reportable swap

transaction shall transaction and to help

evaluate and, when market participants and

applicable, change the the public evaluate the

price used for the price of the reportable

underlying assets of the swap transaction.

reportable swap

transaction. Such reset

frequency may be

described as one letter

preceded by an integer.

Such letter convention

may be reported as

follows: D (daily), W

(weekly), M (monthly), or

Y (yearly).

Reset frequency 2................. An integer multiplier of a 6M................... Information needed to

period describing how identify the pricing

often the parties to the characteristic of the

reportable swap reportable swap

transaction shall transaction and to help

evaluate and, when market participants and

applicable, change the the public evaluate the

price used for the price of the reportable

underlying assets of the swap transaction.

reportable swap

transaction. Such reset

frequency may be

described as one letter

preceded by an integer.

Such letter convention

may be reported as

follows: D (daily), W

(weekly), M (monthly), or

Y (yearly).

Each reset frequency (if

there is more than one)

should be labeled with a

number (e.g., 1, 2, 3,

etc.) such that the

number corresponds to the

underlying asset for

which the reset frequency

is applicable.

If there are more than two

reset frequencies, each

such additional reset

frequency shall be

reported in the same

manner.

Tenor............................. The maturity, termination, Z15.................. Information needed to

or end date of the determine the end month

reportable swap and year of the

transaction. The tenor reportable swap

may be displayed with the transaction and to help

3 character month and market participants and

year format used for the public evaluate the

futures contracts.. price of the reportable

swap transaction.

Reporting entities may

refer to Sec. 43.4(e)

in reporting tenor.

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

If a swap has more than one embedded option, or multiple

swaptions provisions, all such option provisions shall be reported

in the same manner pursuant to the fields in Table A2 of Appendix A

to this Part 43. When disseminated to the public, multiple embedded

options associated with the same swap shall be clearly described and

clearly linked to the swap with which the embedded option is

associated.

Table A2--Additional Real-Time Public Reporting Data Fields for Options, Saptions and Swaps With Embedded

Options

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

Field Description Example Data application

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

Embedded option on swap........... An indication of whether EMBED1............... Information needed to

or not the option fields describe whether an

are for an embedded option is embedded in a

option. This indication swap to prevent

may be displayed as confusion and allow the

``EMBED1,'' ``EMBED2,'' market participants and

etc. and should precede the public to understand

the option fields that the information that is

describe the embedded being reported.

option.

Option Strike Price............... The level or price at O25.................. Information needed to

which an option may be indicate the level or

exercised. The option price at which the

strike price may be option may be exercised

displayed with the letter to market participants

``O'' followed and the public.

immediately by the level

or price.

[[Page 76182]]

Option Type....................... An indication of the type P-................... Information needed to

of option. The option adequately describe the

type may be displayed option to market

with a two character code participants and the

as follows: put (P-), public.

call (C-), purchase to

pay fixed vs. floating

(PF), purchase to receive

fixed vs. floating (RF)

cap (PC), floors (F-),

collar (RC), straddle (D-

), strangle (G-),

amortizing (A-),

cancelable (NC),

compounding (DC), knock-

in (KI), knock-out (KO),

reverse knock-in (RI),

reverse knock-out (RO),

one touch (OT), no touch

(NT), double one-touch

(DO), double no touch

(DN), butterfly (BU),

collar (L-), condor (R-),

callable inverse snowball

(JC), other exotic option

types (XX).

Option Family..................... An indication of the style EU................... Information needed to

of the option adequately describe the

transaction. The option option to market

style/family may be participants and the

displayed as a two letter public.

code as follows: European

(EU), American (AM),

Bermudan (BM), Asian

(AS), other option style/

family (YY).

Option currency................... An indication of the type USD.................. Information needed to

of currency of the option identify the type of

premium. The option currency of the option

currency may be reported premium to market

in a commonly accepted participants and the

code (e.g., the three public.

character alphabetic ISO

4217 currency code).

Option premium.................... An indication of the 50000................ Information needed to

additional cost of the explain the market value

option to the reportable of the option to market

swap transaction as a participants and the

numerical value, not as public at the time of

the difference of the execution. This field

premiums of the party's will allow the public to

obligations to the understand the price of

reportable swap the reportable swap

transaction. This field transaction.

shall be combined with

the option currency field.

Option lockout period............. An indication of the first J19.................. Information is needed to

allowable exercise date identify when the option

of the option. Such can first be exercised

option lockout date shall and to help market

be rounded to the month participants and the

and reported using the public evaluate the

three character month and price of the option.

year format used for

futures contracts.

Option expiration................. An indication of the date Z20.................. Information is needed to

that the option is no identify when the option

longer available for can no longer be

exercise. Such option exercised and to help

expiration shall be market participants and

rounded off to the month the public evaluate the

and reported using the price of the option.

three character month and

year format used for

futures contracts.

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

Issued in Washington, DC, on November 19, 2010, by the

Commission.

David A. Stawick,

Secretary of the Commission.

Statement of Chairman Gary Gensler

Real-Time Public Reporting of Swap Transaction Data

I support the proposed rulemaking to implement a real-time public

reporting regime for swaps. The proposed rules are designed to fulfill

Congress's direction to bring public transparency to the entire swaps

market, both standardized and customized swaps. This post-trade

transparency will enhance price discovery and liquidity while ensuring

anonymity and protection for large trades in appropriate cases. Per

Congress's direction, the proposal requires real time reporting for

swap transaction and pricing data to occur as soon as technologically

practicable for trades other than trades of large notional size or

block trades. Congress mandated that these trades be reported without

delay regardless of whether they are standardized or customized.

With regard to block trades or trades of large notional size, the

proposed rule includes two important features: a time delay and a

method to report the large sizes. With regard to the delay, the

proposed rule includes a 15-minute delay on standardized blocks. This

compares to the futures marketplace, which currently has a five-minute

delay for blocks, and the equities marketplace, which has an even

shorter delay. With regard to customized trades of large notional size,

the proposal asks a series of questions as to whether a similar delay

of 15 minutes would be appropriate for interest rate, currency and

other financial swaps and what delays may be appropriate for customized

large trades referencing physical commodities. The second important

feature with regard to block trades or trades of large notional size is

a reporting method that transactions greater than $250 million notional

amount--even the very largest of trades--will just be reported as being

greater than $250 million. This will protect anonymity and promote the

liquidity of these large trades.

The proposal on real time reporting includes the methods by which

to calculate what a block trade is across the market for various swap

instruments. This will be based on data collected by the swap data

repositories in each of the asset classes. Lastly, the proposal

includes an initial

[[Page 76183]]

implementation date of January 2012 to provide time for the initial

setting of block sizes based on market data and time for market

participants to prepare for such real time reporting requirements.

Real time post-trade reporting is critical to promoting market

integrity and to benefit the investing and hedging public. When

corporations, municipal governments, farmers and merchants seek to

hedge their risk, they will benefit from seeing an accurate picture of

where similar transactions are being priced concurrent with their

decision-making. It is an essential ingredient of well-functioning

markets. Such transparency increases liquidity and enhances the price

discover function of the market.

[FR Doc. 2010-29994 Filed 12-6-10; 8:45 am]

BILLING CODE P

Last Updated: December 7, 2010