CFTC Proposes Updated Swap Data Reporting Regulations

Shearman & Sterling LLP

Introduction

The Commodity Futures Trading Commission (CFTC) has proposed the first installment of a series of amendments to its rules relating to swap data repositories (SDRs) and reporting of swap data.[1] The proposed amendments, which would affect Parts 23, 43, 45 and 49 of the CFTC’s regulations, implement the CFTC’s Roadmap to Achieve High Quality Swaps Data (Roadmap)[2] and are intended to improve the quality and accuracy of data available to the CFTC and the public and streamline data reporting.

Background

Following the passage of the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act), the CFTC adopted a series of regulations to implement the Dodd-Frank Act’s swap data reporting requirements, including to address registration and regulation of SDRs (Part 49), swap transaction data reporting for regulatory purposes (Part 45), real-time public swap transaction data reporting (Part 43) and certain related requirements for swap dealers (SDs) and major swap participants (MSPs) (included in Part 23). The swap data reporting requirements, collectively, have required development of a complex reporting infrastructure, including establishment of SDRs and adoption of systems and procedures for market participants to record, track and report swap data to SDRs. As the reporting framework has evolved, market participants have expressed concern about the complexity and costs of the requirements and about the accuracy and utility (for both the CFTC and the broader public) of the data collected and reported. In addition, as broadly similar, but not identical, reporting regimes have also been adopted in other jurisdictions, market participants have sought greater harmonization of reporting requirements. The CFTC has contributed to efforts internationally and launched internal working groups in order to improve the verification of swap data accuracy.

As part of these efforts, the CFTC launched the Roadmap in July 2017. The Roadmap calls for a comprehensive review of the agency’s swap reporting regulations and solicitation of feedback from market participants on improvements to data reporting without imposing unnecessary burdens.

This proposal is the first of three phases of the Roadmap.

Proposal

Correction of Swap Data Errors and Omissions

The CFTC is proposing to clarify and expand the general requirement that an SDR correct errors and omissions in swap data that had previously been reported to the SDR (or had failed to be reported). The SDR would be required to correct the data regardless of whether the swap is an open swap.[3] SDRs would also be required to disseminate corrected data “as soon as technologically practicable” once the data has been corrected.

Additionally, any swap execution facility (SEF), designated contract market (DCM) or reporting counterparty that becomes aware of any error or omission in data that it previously reported (or failed to report) to an SDR would be required to submit corrected swap data to that SDR. Such data must be corrected regardless of whether the swap has been terminated, matured or is otherwise no longer an open swap.

If a reporting counterparty repeatedly discovers errors or omissions, the CFTC expects that the reporting counterparty will evaluate its reporting systems and work with the SDR to improve its data reporting.

Swap Data Verification

The proposal includes a general requirement that SDRs verify the accuracy and completeness of swap data received from SEFs, DCMs and reporting counterparties, or third-party service providers acting on their behalf.[4] The proposal would also require SDRs to establish and maintain policies and procedures for swap data verification.

In order to fulfill the swap data verification requirements, the CFTC has proposed requiring SDRs to submit to each reporting counterparty an open swaps report that includes the swap data maintained by the SDR for all of the reporting counterparty’s open swaps. Open swaps reports would have to be distributed to SD, MSP and derivatives clearing organization (DCO) reporting counterparties on a weekly basis and to all other reporting counterparties on a monthly basis.

Reporting counterparties would be required to respond to the open swaps report either by verifying the accuracy of the data or notifying the SDR of any discrepancies, pursuant to the SDR’s verification policies and procedures. This verification or notice must be sent in response to every open swaps report received from an SDR within 48 hours for SD, MSP or DCO reporting counterparties or 96 hours for all other reporting counterparties.

The proposed amendments would also standardize calculation approaches and data required for open swap reports. The amendments would give the SDR and its reporting counterparties some flexibility to determine the means of communication of open swap reports.

CCO Obligations

The proposal would clarify certain obligations of the chief compliance officer (CCO) of an SDR. Specifically, the CCO would be expected to have the authority to develop and enforce the policies and procedures of the SDR, and the proposal would clarify that the CCO is required only to take “reasonable steps” to resolve any “material” conflicts of interest that may arise. Additionally, it would require an SDR to establish policies and procedures to handle and resolve noncompliance issues identified by the CCO.

The proposed amendments would also streamline and clarify the requirements of the SDR annual compliance report (ACR). The proposal would increase the amount of time that the SDR has to submit the ACR from 60 calendar days to 90 calendar days following the end of the SDR’s fiscal year. It would also replace the presently required comparison of all applicable CFTC regulations to each SDR policy with a more targeted requirement to describe and assess the effectiveness of SDR policies and procedures.

Other Amendments

Among other changes, the proposed amendments would also:

  • Update language and definitions to be consistent with other CFTC regulations;
  • Eliminate the requirements for SDRs to file an annual amendment to Form SDR and to amend Form SDR after the approval of the registration application;
  • Streamline requirements for equity interest transfers for SDRs and the transferring of SDR registration to a successor entity;
  • Clarify the SDR’s obligation to maintain full, complete and systematic records of all activities related to the business of the SDR and consolidate SDR recordkeeping requirements for all records required to be kept by an SDR;
  • Clarify the SDR’s obligation to establish automated systems for monitoring, screening and analyzing swap data in the manner and within the time directed by the CFTC, and provide examples of some of the monitoring and screening activities the CFTC may require;
  • Consolidate and clarify the CFTC’s requirements in respect of the agency’s access to SDR data;
  • Extend the amount of time that an SDR has to submit its quarterly financial resources reports; and
  • Require SDs and MSPs to establish and enforce written policies and procedures designed to ensure that the entity complies with obligations to submit data to an SDR, consistent with Parts 43 and 45 of the CFTC’s regulations and to review such policies and procedures annually.

Comment

Comments on the proposed amendments must be submitted by July 29, 2019.

The current proposal would impose new requirements on SDRs and reporting counterparties, particularly around verification and error correction. These changes have the goal of improving swap data accuracy, but will likely require new infrastructure and may impose new costs on market participants. It may also be difficult at this stage to fully assess the impact of the proposal, as the other rulemakings relating to the Roadmap have not yet been proposed. The CFTC has stated, however, that it will re-open the comment period for this proposal after the CFTC proposes the next two rulemakings to implement the Roadmap.

Footnotes

[1] Certain Swap Data Repository and Data Reporting Requirements, 84 Fed. Reg. 21044 (May 13, 2019).

[2] CFTC, “Roadmap to Achieve High Quality Swap Data“ (Jul. 10, 2017). For more information on these final rules, please refer to our earlier update, which is available here.

[3] The CFTC proposes to define “open swap” as “an executed swap transaction that has not reached maturity or the final contractual settlement date, and has not been exercised, closed out, or terminated.”

[4] SDRs would only be required to verify swap data with reporting counterparties.

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