Swap Data Repositories: Interpretative Statement Regarding the Confidentiality and Indemnification Provisions of the Commodity Exchange Act, 65177-65182 [2012-26298]
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Federal Register / Vol. 77, No. 207 / Thursday, October 25, 2012 / Notices
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SUMMARY:
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[FR Doc. 2012–26249 Filed 10–24–12; 8:45 am]
BILLING CODE 3510–KD–P
COMMODITY FUTURES TRADING
COMMISSION
Swap Data Repositories: Interpretative
Statement Regarding the
Confidentiality and Indemnification
Provisions of the Commodity
Exchange Act
Commodity Futures Trading
Commission.
ACTION: Interpretative statement.
65177
guidance regarding the applicability of
the confidentiality and indemnification
provisions set forth in new section 21(d)
of the Commodity Exchange Act
(‘‘CEA’’) added by section 728 of the
Dodd-Frank Wall Street Reform and
Consumer Protection Act (‘‘Dodd-Frank
Act’’). This Statement clarifies that the
provisions of CEA section 21(d) should
not operate to inhibit or prevent foreign
regulatory authorities from accessing
data in which they have an independent
and sufficient regulatory interest, even if
that data also has been reported
pursuant to the CEA and Commission
regulations.
DATES:
Effective date: October 25, 2012
FOR FURTHER INFORMATION CONTACT:
Adedayo Banwo, Counsel, Office of the
General Counsel, at (202) 418.6249,
abanwo@cftc.gov; With respect to
questions relating to international
consultation and coordination:
Jacqueline Mesa, Director, at (202)
418.5386, jmesa@cftc.gov, or Mauricio
Melara, Attorney-Advisor, at (202)
418.5719, mmelara@cftc.gov, Office of
International Affairs, Commodity
Futures Trading Commission, Three
Lafayette Centre, 1155 21st Street NW.,
Washington, DC 20581.
SUPPLEMENTARY INFORMATION:
I. Background: Statutory and
Regulatory Authorities
On July 21, 2010, President Obama
signed into law the Dodd-Frank Act.1
Title VII amended the CEA to establish
a comprehensive new regulatory
framework for swaps and security-based
swaps.2 The legislation was enacted to
reduce risk, increase transparency and
promote market integrity within the
financial system by, among other things:
(i) Providing for the registration and
comprehensive regulation of swap
dealers and major swap participants; (ii)
imposing clearing and trade execution
requirements on standardized derivative
products; (iii) creating robust
recordkeeping and real-time reporting
regimes; and (iv) enhancing the
Commission’s rulemaking and
enforcement authorities with respect to,
among others, all registered entities and
intermediaries subject to the
Commission’s oversight.
To enhance transparency, promote
standardization and reduce systemic
risk, section 727 of the Dodd-Frank Act
AGENCY:
The Commodity Futures
Trading Commission (‘‘Commission’’ or
‘‘CFTC’’) is issuing this interpretative
statement (‘‘Statement’’) to provide
SUMMARY:
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1 See Dodd-Frank Wall Street Reform and
Consumer Protection Act, Public Law 111–203, 124
Stat. 1376 (2010), available at https://www.cftc.gov/
LawRegulation/OTCDERIVATIVES/index.htm.
2 Pursuant to section 701 of the Dodd-Frank Act,
Title VII may be cited as the ‘‘Wall Street
Transparency and Accountability Act of 2010;’’ 7
U.S.C. 1 et seq.
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Federal Register / Vol. 77, No. 207 / Thursday, October 25, 2012 / Notices
added to the CEA new section
2(a)(13)(G),3 which requires all swaps—
whether cleared or uncleared—to be
reported to swap data repositories
(‘‘SDRs’’). SDRs are new registered
entities created by section 728 of the
Dodd-Frank Act.4 SDRs are required to
perform specified functions related to
the collection and maintenance of swap
transaction data and information.5
CEA section 21(c)(7) requires that
SDRs make data available to certain
domestic and foreign regulators 6 under
specified circumstances.7 Separately,
CEA section 21(d) mandates that prior
to receipt of any requested data or
information from an SDR, a regulatory
authority described in section 21(c)(7)
shall agree in writing to abide by the
confidentiality requirements described
in section 8 of the CEA,8 and to
indemnify the SDR and the Commission
for any expenses arising from litigation
relating to the information provided
under section 8 of the CEA.9
Section 752 of the Dodd-Frank Act
seeks to ‘‘promote effective and
consistent global regulation of swaps,’’
and provides that the CFTC and foreign
regulatory authorities ‘‘may agree to
such information-sharing arrangements
as may be deemed to be necessary or
appropriate in the public interest.
* * *.’’ 10 In light of this statutory
directive, and consistent with section 21
of the CEA, the Commission has been
working to provide sufficient access to
SDR data to domestic and foreign
regulators.
In that regard, the Chairman of the
CFTC and the Chairman of the
Securities and Exchange Commission
(‘‘Chairmen’’) jointly submitted a letter
to Michel Barnier, European
37
U.S.C. 2(a)(13)(G).
721 of the Dodd-Frank Act amends
section 1a of the CEA to add a definition of the term
‘‘swap data repository.’’ Pursuant to CEA section
1a(48), the term ‘‘swap data repository means any
person that collects and maintains information or
records with respect to transactions or positions in,
or the terms and conditions of, swaps entered into
by third parties for the purpose of providing a
centralized recordkeeping facility for swaps.’’ 7
U.S.C. 1a(48).
5 See 7 U.S.C. 24a(c). See also Commission, Final
Rulemaking: Swap Data Recordkeeping and
Reporting Requirements, 77 FR 2136, Jan. 13, 2012
(‘‘Data Final Rules’’). The Data Final Rules, among
other things, set forth regulations governing SDR
data collection and reporting responsibilities under
part 45 of the Commission’s regulations.
6 The Commission’s regulations designate such
regulators as either an ‘‘Appropriate Domestic
Regulator’’ or an ‘‘Appropriate Foreign Regulator’’
in § 49.17(b). See Swap Data Repositories:
Registration Standards, Duties and Core Principles,
76 FR 54538, 54554 (Sep. 1, 2011) (‘‘SDR Final
Rules’’).
7 7 U.S.C. 24a(c)(7).
8 7 U.S.C. 12.
9 7 U.S.C. 24a(d).
10 See section 752(a) of the Dodd-Frank Act.
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4 Section
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Commissioner for Internal Markets and
Services,11 highlighting their desire for
international cooperation. In the letter,
the Chairmen expressed their belief that
indemnification and notice
requirements need not apply when a
registered SDR is also registered in a
foreign jurisdiction and the foreign
regulatory authority, acting within the
scope of its jurisdiction, seeks
information directly from the SDR.
On September 1, 2011, the
Commission adopted regulations
implementing CEA section 21’s
registration standards, duties, and core
principles for SDRs.12 To implement the
provisions of sections 21(c)(7) and (d),
the Commission adopted definitions
and standards for determining access by
domestic and foreign regulators to data
maintained by SDRs.
The Commission acknowledged in the
SDR Final Rules that the CEA’s
indemnification requirement could have
the unintended effect of inhibiting
direct access by other regulators to data
maintained by SDRs due to various
home country laws and regulations.13
The SDR Final Rules provided that
under specified circumstances, certain
‘‘Appropriate Domestic Regulators’’ 14
may gain access to the swap data
reported and maintained by SDRs
without being subject to the notice and
indemnification requirements of CEA
sections 21(c)(7) and (d).15 In
connection with foreign regulatory
authorities, the Commission determined
in the SDR Final Rules that confidential
swap data reported to and maintained
11 See letter from Gary Gensler, Chairman of the
Commission, and Mary Schapiro, Chairman of the
SEC, to Michel Barnier, European Commissioner for
Internal Markets and Services, European
Commission, dated June 8, 2011.
12 See, generally, SDR Final Rules.
13 See SDR Final Rules at 54554.
14 The term ‘‘Appropriate Domestic Regulator’’ is
defined in 17 CFR 49.17(b)(1) as the Securities and
Exchange Commission; each prudential regulator
identified in section 1a(39) of the CEA. 7 U.S.C.
1a(39); the Financial Stability Oversight Council;
the Department of Justice; any Federal Reserve
Bank; the Office of Financial Research; and any
other person the Commission deems appropriate.
15 In the Commission’s view, it is appropriate to
permit access to the swap data maintained by SDRs
to Appropriate Domestic Regulators that have
concurrent regulatory jurisdiction over such SDRs,
without the application of the notice and
indemnification provisions of sections 21(c)(7) and
(d) of the CEA. See SDR Final Rules at 54554 n.163.
Accordingly, these provisions do not apply to an
Appropriate Domestic Regulator that has regulatory
jurisdiction over an SDR registered with it pursuant
to a separate statutory authority that is also
registered with the Commission, if the Appropriate
Domestic Regulator executes a memorandum of
understanding (‘‘MOU’’) or similar information
sharing arrangement with the Commission and the
Commission, consistent with CEA section
21(c)(4)(A), designates the Appropriate Domestic
Regulator to receive direct electronic access. See 17
CFR 17(d)(2).
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by an SDR may be accessed by an
Appropriate Foreign Regulator 16
without the execution of a
confidentiality and indemnification
agreement when the Appropriate
Foreign Regulator has supervisory
authority over an SDR registered with it
pursuant to foreign law and/or
regulation that is also registered with
the Commission.
The confidentiality and
indemnification provisions of new CEA
section 21 apply only when a regulatory
authority seeks access to data from an
SDR. In the SDR Final Rules, the
Commission noted that section 8(e) of
the CEA permits the Commission (as
opposed to an SDR) to share
confidential information in its
possession with any department or
agency of the Government of the United
States, or with any foreign futures
authority, department or agency of any
foreign government or political
subdivision thereof,17 acting within the
scope of its jurisdiction.18
The SDR Final Rules became effective
on October 31, 2011.19 Under these
rules, trade repositories may apply to
the Commission for full registration as
SDRs. Pending the full implementation
of other, related regulatory provisions
and definitions, however, such
registrations are deemed
‘‘provisional.’’ 20
II. The Proposed Interpretative
Statement
On May 1, 2012, the Commission
issued a proposed interpretative
statement (‘‘Proposed Statement’’) to
address issues raised by interested
members of the public and foreign
regulatory authorities with respect to
the scope and application of the
confidentiality and indemnification
provisions of new section 21(d) of the
CEA.21 Under the Proposed Statement,
the Commission clarified that the
confidentiality and indemnification
provisions of CEA section 21(d) should
not operate to inhibit or prevent foreign
regulatory authorities from accessing
data in which they have an independent
and sufficient regulatory interest.
16 The term ‘‘Appropriate Foreign Regulator’’ is
defined in 17 CFR 49.17(b)(2) as a foreign regulator
with an existing MOU or similar type of
information sharing arrangement executed with the
Commission, and/or a foreign regulator without an
MOU as determined on a case-by-case basis by the
Commission.
17 Section 725(f) of the Dodd-Frank Act amended
section 8(e) of the CEA to include foreign central
banks and ministries.
18 See SDR Final Rules at 54554.
19 Id.
20 See 17 CFR 49.3(b).
21 See 77 FR 26709 (May 7, 2012).
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The Proposed Statement provided
that a registered SDR would not be
subject to the confidentiality and
indemnification provisions of CEA
section 21(d) if: (i) such registered SDR
is also registered, recognized or
otherwise authorized in a foreign
jurisdiction’s regulatory regime; and (ii)
the data sought to be accessed by a
foreign regulatory authority has been
reported to such registered SDR
pursuant to the foreign jurisdiction’s
regulatory regime. In addition, because
some registered SDRs might also be
registered, recognized or otherwise
authorized in a foreign jurisdiction and
may accept swap data reported pursuant
to a foreign regulatory regime, the
Commission concluded that the
confidentiality and indemnification
provisions of CEA section 21(d)
generally apply only to such data
reported pursuant to the CEA and
Commission regulations.
As detailed in Section III.B.,
interested members of the public and a
foreign regulatory authority responded
to the Commission’s request to receive
public comments on all aspects of the
Proposed Statement.22 In adopting this
Statement, the Commission has
carefully considered these comments.
final regulations concerning SDRs and
in the finalization of the Proposed
Statement.25 The Commission notes that
the SDR Final Rules are largely
consistent with the recommendations
and goals of the May 2010 ‘‘CPSS–
IOSCO Consultative Report,
Considerations for Trade Repositories in
the OTC Derivatives Market’’ (‘‘Working
Group Report’’).26
Consistent with the international
harmonization envisioned by section
752 of the Dodd-Frank Act, the
Commission has engaged in
consultations with foreign regulatory
authorities regarding the Commission’s
adoption and implementation of
regulations and the issuance of
interpretative guidance relating to the
Dodd-Frank Act. In this context, foreign
regulatory authorities have expressed
concern about the difficulty in
complying with the indemnification
provisions of CEA section 21(d).
III. Considerations Relevant to the
Commission’s Statement 23
25 See public comment file in response to the
proposal for the SDR Final Rules, available at
https://comments.cftc.gov/PublicComments/
CommentList.aspx?id=939 and SDR Final Rules
note 6 at 54539, supra.
26 This working group was jointly established by
the Committee on Payment and Settlement Systems
(‘‘CPSS’’) of the Bank of International Settlements
and the Technical Committee of the International
Organization of Securities Commissions (‘‘IOSCO’’).
The Working Group Report presented a set of
factors to consider in connection with the design,
operation and regulation of SDRs. A significant
focus of the Working Group Report is access to SDR
data by appropriate regulators. The Working Group
Report urges that a trade repository ‘‘should support
market transparency by making data available to
relevant authorities and the public in line with their
respective information needs.’’ The Working Group
Report is available at https://www.bis.org/publ/
cpss90.pdf. See also CPSS–IOSCO Consultative
Report, Principles of Financial Market
Infrastructures (March 2011) available at https://
www.bis.org/publ/cpss94.pdf (‘‘PFMI Report’’). See
also Financial Stability Board (‘‘FSB’’),
Implementing OTC Derivatives Market Reforms,
Oct. 25, 2010 (‘‘FSB Report’’); FSB, Derivative
Market Reforms, Progress Report on
Implementation, Apr. 15, 2010 (‘‘FSB Progress
Report’’).
27 The Commission received five comments, four
of which regard the Proposed Statement. All
comment letters are available on the Commission
Web site at https://comments.cftc.gov/
PublicComments/CommentList.aspx?id=1198.
Specific comment letters are identified by the
submitter. Comments addressing the Proposed
Statement were received from: (i) The European
Securities and Markets Authority, June 5, 2012; (ii)
the Financial Services Roundtable, June 6, 2012;
(iii) Cloud Strategix, LLC, June 5, 2012; and (iv) the
Depository Trust & Clearing Corporation, June 6,
2012. The fifth comment regards the
implementation of section 619 of the Dodd-Frank
Act.
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A. International Considerations
As noted above, section 752(a) of the
Dodd-Frank Act directs the Commission
to consult and coordinate with foreign
regulatory authorities regarding the
establishment of consistent
international standards for the
regulation of swaps and various ‘‘swap
entities.’’ Section 752(a) also provides
that the Commission ‘‘may agree to such
information-sharing arrangements [with
foreign regulatory authorities] as may be
deemed to be necessary or appropriate
in the public interest’’ or for the
protection of investors and
counterparties.24
The Commission is committed to a
cooperative international approach to
the registration and regulation of SDRs,
and consulted extensively with various
foreign regulatory authorities in
promulgating both its proposed and
22 See public comment file in response to the
Proposed Statement, available at https://
comments.cftc.gov/PublicComments/
CommentList.aspx?id=1198.
23 Legislation has been introduced in Congress
that would amend the CEA to eliminate or
substantially limit the SDR indemnification
provision. As discussed in Section III.B.,
commenters expressed the general view that a
‘‘legislative fix’’ would be the best course of action
to resolve issues regarding the section 21(d)
requirements.
24 See section 752(a) of the Dodd-Frank Act.
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B. Comments on the Proposed
Statement 27
The Depository Trust & Clearing
Corporation (‘‘DTCC’’) stated its support
of the adoption of the Proposed
Statement as a ‘‘necessary first step.’’
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Nevertheless, DTCC concluded that the
statutory language at issue requires a
‘‘legislative fix’’ to clarify the scope and
applicability of the confidentiality and
indemnification provisions of CEA
section 21(d) because ‘‘the
indemnification requirement’’ would
limit the sharing of trade repository data
across borders. DTCC noted that a
foreign regulator might have an interest
in SDR data related to a swap
transaction entered into by parties not
subject to the foreign regulator’s
‘‘oversight authority.’’ In this regard,
DTCC noted concerns expressed by
foreign regulatory authorities who
believe that a ‘‘jurisdictional nexus’’
would nonetheless exist with respect to
the terms of swap transactions (e.g.,
swap transactions using currencies or
underlying reference entities subject to
a foreign regulator’s oversight authority)
that are not reported ‘‘pursuant to the
foreign jurisdiction’s regulatory
regime.’’ DTCC pointed out that access
to such swap transaction data that is not
reported ‘‘pursuant to the foreign
jurisdiction’s regulatory regime’’ would
not be available unless the foreign
regulator enters into a confidentiality
and indemnification agreement with the
SDR.
DTCC also suggested certain
substantive modifications to the
Proposed Statement.28 Among them,
DTCC suggested that the Commission
expand on the meaning of ‘‘registered,
recognized or otherwise authorized’’ in
the Proposed Statement or,
alternatively, state that operation in
accordance with the PFMI Report would
mean that an SDR is ‘‘authorized’’ for
purposes of this Statement.
The European Securities and Markets
Authority (‘‘ESMA’’) noted that it
considers the Commission’s
‘‘recognition of foreign regimes and the
access to data requirements originating
from them’’ under the Proposed
Statement as a ‘‘step in the right
direction’’ that would allow relevant
European authorities to obtain data in
accordance with relevant European
Union laws and forthcoming
28 DTCC suggested that the Commission consider
the following modifications to the Proposed
Statement: (i) Provide that no registration or
licensing would be necessary with respect to the
condition that a registered SDR is also registered,
recognized or otherwise authorized in a foreign
jurisdiction’s regulatory regime; (ii) provide that
SDRs operating in accordance with principles
relevant to trade repositories under the PFMI Report
should be deemed authorized; and (iii) provide that
with respect to the condition that the SDR data
sought to be accessed by a foreign regulator is
reported pursuant to the foreign jurisdiction’s
regulatory regime, the meaning attributed to
regulatory regime includes a foreign jurisdiction’s
adherence to the PFMI Report provisions outlined
for market regulators.
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regulations. However, ESMA noted its
concern that the Commission’s
interpretation of the indemnification
provision of CEA section 21(d) ‘‘cannot
overrule the [Dodd-Frank] Act itself’’
and concluded that ‘‘the confidentiality
and indemnification issue could only be
fully addressed with a legislative
amendment by repealing the original
provision in the Dodd-Frank Act.’’ In
addition, consistent in part with DTCC’s
comment, ESMA noted that relevant
European Union authorities could have
an interest in accessing swap
transaction data reported to a registered
SDR pursuant to the Dodd-Frank Act,
but not reported pursuant to European
Union laws and forthcoming
regulations. Accordingly, ESMA
suggested certain modifications to the
Proposed Statement.29
The Financial Services Roundtable
(‘‘FSR’’) requested that the Commission
support a legislative solution which
would remove the indemnification
provision from CEA section 21(d). FSR
also requested that the Commission
continue its discussions with regulators
in other jurisdictions as well as its
participation in standard-setting bodies
to develop international standards
relevant to the swap markets.
Cloud Strategix, LLC (‘‘Cloud
Strategix’’), representing the data
hosting and cloud computing industry,
in relevant part expressed a general
concern with respect to the ‘‘several
costs, unintended consequences, and
impracticalities’’ related to the Proposed
Statement and the SDR Final Rules.
Specifically, Cloud Strategix noted that
the Proposed Statement ‘‘does not seem
to consider the great cost to the data
center that hosts the SDR in assisting
the SDR with compliance with foreign
regulators.’’ In this context, Cloud
Strategix suggested that the Commission
‘‘provide an exemption for all data
centers to indemnify SDRs for
regulatory inquiries, enforcement
proceedings, or litigation for both
foreign and domestic regulators.’’
29 ESMA suggested that the Commission consider
the following alternative modifications to the
Proposed Statement: (i) delete the second condition
of the Proposed Statement (i.e., ‘‘The data sought
to be accessed by a foreign regulatory authority is
reported to such registered SDR pursuant to the
foreign regulatory regime.’’); or (ii) add the
following bracketed language to the second
condition such that it would read as follows: ‘‘The
data sought to be accessed by a foreign regulatory
authority has been reported to such registered SDR
pursuant to the foreign jurisdiction’s regulatory
regime [or the foreign regulatory authority is
entitled to access such data pursuant to its
regulatory regime to fulfill its respective
responsibilities and mandates.]’’
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C. Commission Determination
After considering the comments
received to the Proposed Statement and
following the aforementioned
consultations with foreign regulatory
authorities pursuant to the
Congressional mandate for cooperation
in section 752 of the Dodd-Frank Act,
the Commission has concluded that the
guidance described in the Proposed
Statement is necessary to ensure that
appropriate access by foreign regulatory
authorities is not unnecessarily
inhibited. Accordingly, while the SDR
Final Rules address foreign regulators
with supervisory authority and
regulatory responsibility, the
Commission is issuing this Statement to
ensure that foreign regulators receive
sufficient access to data reported to
SDRs where such foreign regulators
have an independent and sufficient
regulatory interest.
In response to DTCC’s comment
regarding expanding on the meaning of
‘‘registered, recognized or otherwise
authorized’’ of the Proposed Statement
or, alternatively, stating that operation
in accordance with the PFMI Report
would mean that an SDR is
‘‘authorized’’ for purposes of this
Statement, the Commission believes,
consistent with DTCC’s comment, that a
foreign regulator with ‘‘oversight
responsibilities’’ of an SDR pursuant to
the regulatory regime of the applicable
foreign jurisdiction would meet the
‘‘registered, recognized or otherwise
authorized’’ prong herein. Nonetheless,
the Commission declines to express a
more detailed view on the regulatory or
jurisdictional structures applicable to
SDRs governed within foreign
jurisdictions that would meet the
‘‘registered, recognized or otherwise
authorized’’ prong herein. As the
Commission indicated in its Proposed
Statement, access by foreign regulatory
authorities ‘‘should be governed by such
foreign jurisdiction’s regulatory
regime,’’ and the Commission believes
that ‘‘registered, recognized or otherwise
authorized’’ is sufficiently broad to
cover a wide variety of foreign
regulatory structures and regimes.
Similarly, and in response to DTCC’s
and ESMA’s comment regarding
accessing data which is not reported
pursuant to European Union laws and
forthcoming regulations, the
Commission acknowledges the
difficulty that certain foreign regulators
may face in this regard. The
Commission reiterates that foreign and
domestic regulators may nonetheless be
able to receive confidential data from
the Commission without the execution
PO 00000
Frm 00015
Fmt 4703
Sfmt 4703
of a confidentiality and indemnification
agreement.
In response to FSR’s comment
regarding consultations and
participation with standard-setting
bodies, the Commission agrees and
notes its participation in various
international regulatory and industryled working groups.30
In response to the cost-benefit
considerations raised by Cloud
Strategix, the Commission has
previously acknowledged such costs in
its consideration of the costs and
benefits of compliance with its SDR
Final Rules 31 and Data Final Rules.32
The Commission does not believe that
the Proposed Statement changes or
modifies its earlier consideration of the
costs and benefits of the applicable final
rules.
IV. Interpretative Statement
In consideration of the foregoing, the
Commission is providing guidance
regarding the confidentiality and
indemnification provisions of CEA
section 21(d) by adopting the substance
of the Proposed Statement. In this
regard, the Commission seeks to ensure
an orderly transition to the Dodd-Frank
Act’s swap data reporting regime by
providing certainty to market
participants and regulators with respect
to the confidentiality and
indemnification provisions of CEA
section 21(d).
A. Data Reported to Registered SDRs
The Commission understands that
some registered SDRs also may be
registered, recognized or otherwise
authorized in a foreign jurisdiction and
may accept swap data reported pursuant
to the foreign regulatory regime. The
Commission concludes that the
confidentiality and indemnification
provisions of CEA section 21(d)
generally apply only to such data
reported pursuant to the CEA and
Commission regulations.
The Commission further concludes
that the confidentiality and
indemnification provisions should not
operate to inhibit or prevent foreign
regulatory authorities from accessing
data in which they have an independent
and sufficient regulatory interest (even
if that data also has been reported
30 Among the working groups the Commission is
actively participating in to develop consistent
international standards are the FSB, CPSS and
IOSCO working group on data access (see infra n.
36), the Technical Committee of IOSCO which
developed the ‘‘Report on OTC derivatives and
aggregation requirements,’’ and the FSB’s Legal
Entity Identifier Expert Group.
31 See SDR Final Rules, supra n. 6, at 54572.
32 See Data Final Rules, supra n. 5, at 2176.
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Federal Register / Vol. 77, No. 207 / Thursday, October 25, 2012 / Notices
pursuant to the CEA and Commission
regulations).
Accordingly, and consistent with the
Commission’s SDR Final Rules, the
Commission interprets CEA section
21(d) such that a registered SDR would
not be subject to the confidentiality and
indemnification provisions of that
section if:
• Such registered SDR also is
registered, recognized or otherwise
authorized in a foreign jurisdiction’s
regulatory regime; and
• The data sought to be accessed by
a foreign regulatory authority has been
reported to such registered SDR
pursuant to the foreign jurisdiction’s
regulatory regime.
This Statement is grounded in
principles of international law and
comity. For example, in F. Hoffmann-La
Roche Ltd. v. Empagran S.A., the U.S.
Supreme Court, in reviewing the
extraterritorial applicability of a
different federal statute, stated that
extraterritorial jurisdiction should be
construed, where ambiguous, ‘‘to avoid
unreasonable interference with the
sovereign authority of other nations.’’33
In cases considering concepts of
international law and comity in
evaluating the extraterritorial scope of
federal statutes, the Supreme Court has
noted that the principles in the Third
Restatement of Foreign Relations Law
are relevant to the interpretation of U.S.
law.34
Specifically, section 403 of the Third
Restatement of Foreign Relations Law
states, in relevant part:
Whether exercise of jurisdiction over
a person or activity is unreasonable is
determined by evaluating all relevant
factors, including, where appropriate:
erowe on DSK2VPTVN1PROD with
(a) The link of the activity to the territory
of the regulating state, i.e., the extent to
which the activity takes place within the
territory, or has substantial, direct, and
foreseeable effect upon or in the territory;
(b) The connections, such as nationality,
residence, or economic activity, between the
regulating state and the person principally
responsible for the activity to be regulated, or
between that state and those whom the
regulation is designed to protect;
(c) The character of the activity to be
regulated, the importance of regulation to the
regulating state, the extent to which other
states regulate such activities, and the degree
to which the desirability of such regulation
is generally accepted;
(d) The existence of justified expectations
that might be protected or hurt by the
regulation;
33 F. Hoffmann-LaRoche, Ltd. v. Empagran S.A.,
542 U.S. 155, 164 (2004). In Hoffmann-LaRoche, the
Supreme Court also stated that canons of statutory
construction ‘‘assume that legislators take account
of the legitimate sovereign interests of other nations
when they write American laws.’’ Id.
34 Id. at 164–165.
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12:06 Oct 24, 2012
Jkt 229001
(e) The importance of the regulation to the
international political, legal, or economic
system;
(f) The extent to which the regulation is
consistent with the traditions of the
international system;
(g) The extent to which another state may
have an interest in regulating the activity;
and
(h) The likelihood of conflict with
regulation by another state.35
To avoid unnecessary interference
with the sovereign authority of foreign
regulatory authorities, this Statement is
supported and underpinned by
principles of international law and
comity.
B. Foreign Regulatory Access
In the Commission’s view, a foreign
regulator’s access to data held in a
registered SDR that also is registered,
recognized, or otherwise authorized in a
foreign jurisdiction’s regulatory regime,
should be governed by such foreign
jurisdiction’s regulatory regime where
the data sought to be accessed has been
reported pursuant to that regulatory
regime. The Commission concludes that
it is appropriate not to apply the
requirements of CEA section 21(d) in
these circumstances, in light of, among
other things, the importance of such
data to the foreign jurisdiction’s
regulatory regime, foreign regulators’
interest in unfettered access to such
data, and the traditions of mutual trust
and cooperation among international
regulators.36
Therefore, the Commission concludes
that a foreign regulator’s access to data
from a registered SDR that also is
registered, recognized, or otherwise
authorized in a foreign jurisdiction’s
regulatory regime, where the data to be
accessed has been reported pursuant to
that regulatory regime, will be dictated
by that foreign jurisdiction’s regulatory
regime and not by the CEA or
Commission regulations. Such access is
appropriate, in the Commission’s view,
even if the applicable data is also
reported to the registered SDR pursuant
to the Commission’s Data Final Rules.37
35 Rest. 3d., Third Restatement Foreign Relations
Law section 403 (scope of a statutory grant of
authority must be construed in the context of
international law and comity including, as
appropriate, the extent to which regulation is
consistent with the traditions of the international
system).
36 The Commission notes that access to data held
by trade repositories is a concept under discussion
and development among international regulators.
At the request of the FSB, CPSS and IOSCO have
established a working group of relevant authorities
to produce a forthcoming report regarding
authorities’ access to trade repository data.
37 Regarding the Commission’s access to SDR
data, section 21(b)(1)(A) of the CEA states that the
Commission ‘‘shall prescribe standards that specify
the data elements for each swap that shall be
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Fmt 4703
Sfmt 4703
65181
Additionally, the Commission
reiterates that a foreign regulatory
authority, like domestic regulators, can
nonetheless receive confidential data,
without the execution of a
confidentiality and indemnification
agreement, from the Commission (as
opposed to an SDR) pursuant to section
8(e) of the CEA.38 Such data sharing and
access would be governed by the
confidentiality provisions of section 8 of
the CEA.39 The Commission is
committed to continuing its close
cooperation with: (i) foreign regulatory
authorities to promptly address such
information requests; and (ii) registered
SDRs that request the Commission’s
assistance in determining if a foreign
regulatory authority has an independent
and regulatory interest in data that has
been reported to such registered SDR
pursuant to the relevant foreign
jurisdiction’s regulatory regime.
*
*
*
*
*
Issued in Washington, DC on October 22,
2012 by the Commission.
Stacy D. Yochum,
Counsel.
Appendices to Swap Data
Repositories: Interpretative Statement
Regarding the Confidentiality and
Indemnification Provisions of Section
21(d) of the Commodity Exchange Act—
Note: The following appendices will not
appear in the Code of Federal Regulations.
Appendix 1—Commission Voting
Summary
On this matter, Chairman Gensler and
Commissioners Chilton and Wetjen voted in
the affirmative; Commissioners Sommers and
O’Malia voted in the negative.
Appendix 2—Statement of Chairman
Gary Gensler
I support the final interpretative guidance
regarding the confidentiality and
collected and maintained by each registered swap
data repository.’’ Section 21(c)(1) of the CEA
requires registered SDRs to ‘‘accept data prescribed
by the Commission for each swap under subsection
(b).’’ With respect to Commission access to data
held in registered SDRs, the Commission concludes
that the direct electronic access provisions of CEA
section 21(c)(4) apply only to such data that the
SDR is required to accept under section 21(c)(1),
which is further defined by part 45 of the
Commission’s regulations. In this respect, the
Commission concludes that its direct electronic
access applies only to such data reported pursuant
to section 21 and Commission regulations
promulgated thereunder.
38 CEA section 8(e), 7 U.S.C. 12(e), allows the
Commission to share confidential information in its
possession obtained in connection with the
administration of the CEA with ‘‘any department or
agency of the Government of the United States’’ or
with any foreign futures authority or a department,
central bank or ministry, or agency of a foreign
government or political subdivision thereof, acting
within the scope of its jurisdiction.
39 7 U.S.C. 12.
E:\FR\FM\25OCN1.SGM
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65182
Federal Register / Vol. 77, No. 207 / Thursday, October 25, 2012 / Notices
indemnification provisions of the DoddFrank Wall Street Reform and Consumer
Protection Act (Dodd-Frank Act).
The confidentiality and indemnification
provisions in the Dodd-Frank Act state that
before a registered swap data repository
(SDR) may share information with certain
domestic and foreign regulators, those
regulators must first agree in writing to abide
by the confidentiality provisions of Section 8
of the Commodity Exchange Act (CEA). In
addition, the Dodd-Frank Act requires that
regulators also must indemnify both the SDR
and the Commodity Futures Trading
Commission (Commission) for any expenses
arising from litigation relating to the
information provided under Section 8 of the
CEA.
The Commission recognizes the
importance to foreign regulators of swap data
reported under foreign regulatory regimes.
The Commission’s final SDR rules specified
that confidential swap data reported to and
maintained by an SDR may be accessed by
an ‘‘appropriate foreign regulator’’ without a
confidentiality and indemnification
agreement when the SDR is also registered
with that foreign regulator.
To provide further clarity for foreign
regulators, the Commission is issuing this
interpretative guidance on the Dodd-Frank
Act confidentiality and indemnification
provisions. The final interpretative guidance
makes clear that a foreign regulator will not
be prevented from accessing data in which it
has an independent and sufficient regulatory
authority over the SDR and such data has
been reported pursuant to the foreign
jurisdiction’s regulatory regime.
With this interpretive guidance, the
Commission has taken another important
step to ensure appropriate access to SDRs by
foreign regulatory authorities consistent with
the provisions of the Dodd-Frank Act.
erowe on DSK2VPTVN1PROD with
Appendix 3—Statement of
Commissioners Jill E. Sommers and
Scott D. O’Malia
We respectfully dissent from issuing this
Final Interpretative Statement Regarding the
Confidentiality and Indemnification
Provisions of Section 21(d) of the Commodity
Exchange Act (CEA) (Final Interpretative
Statement). When the Commission issued the
proposed guidance (Proposed Interpretative
Statement) in May of this year, we were
concerned that the statement did not actually
solve the problem with the statutory language
beyond providing some additional clarity to
the Swap Data Repository (SDR) rules and we
called for a permanent solution by way of a
legislative repeal of the indemnification
provisions.
When finalizing the SDR rules, the
Commission stated that a foreign regulator
may have direct access to confidential swap
data reported to and maintained by an SDR
registered with the Commission without
executing a Confidentiality and
Indemnification Agreement when the SDR is
also registered with the foreign regulator and
the foreign regulator is acting in a regulatory
capacity with respect to the SDR. See Swap
Data Repositories: Registration Standards,
Duties and Core Principles, 76 FR 54,538,
54,554 (Sept. 1, 2011). The Final
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12:06 Oct 24, 2012
Jkt 229001
Interpretative Statement expands this to
SDRs that are registered, recognized or
otherwise authorized in a foreign regulator’s
regulatory regime and clarifies that direct
access to data should be granted even if the
data the foreign regulator seeks also has been
reported pursuant to the CEA and
Commission regulations.
The Commission received a comment from
the European Securities and Markets
Authority (ESMA) suggesting that we
consider modifying the conditions that
would need to be met so that a foreign
regulator could escape being subject to the
indemnification provisions. Specifically,
ESMA suggested that the Commission
consider the following alternative
modifications: (1) delete the second
condition of the Proposed Interpretative
Statement, (i.e., ‘‘The data sought to be
accessed by a foreign regulatory authority is
reported to such registered SDR pursuant to
the foreign regulatory regime’’), which would
leave the sole condition that the SDR be
registered, recognized or otherwise
authorized in the foreign regulatory regime;
or (2) add language to the second condition
such that it would read as follows: ‘‘The data
sought to be accessed by a foreign regulatory
authority has been reported to such
registered SDR pursuant to the foreign
jurisdiction’s regulatory regime or the foreign
regulatory authority is entitled to access such
data pursuant to its regulatory regime to
fulfill its respective responsibilities and
mandates.’’ Although the Commission
acknowledges the comment in the Final
Interpretative Statement, we do not adopt
either suggestion and do not justify their
exclusion.
Our second concern involves the
distinction the Commission made in the SDR
rules between an Appropriate Domestic
Regulator and an Appropriate Domestic
Regulator with Regulatory Responsibilities.
Under the current rules only the CFTC and
the SEC are able to directly access SDR data
absent an indemnification agreement. All
other U.S. Regulators (i.e. ‘‘Appropriate
Domestic Regulators’’) would have to execute
an indemnification agreement—something
that we are told they are prohibited from
doing. Adopting the second ESMA option
and extending it to Appropriate Domestic
Regulators would allow them direct access to
data they believe is necessary to fulfill their
regulatory mandate, and in our view is
something that is within the Commission’s
discretion. Instead, the Commission has
purposely chosen to interpret the statute in
a manner that constrains other domestic
regulators’ ability to examine swap market
data. For these reasons we cannot support the
guidance issued today by the Commission.
[FR Doc. 2012–26298 Filed 10–24–12; 8:45 am]
BILLING CODE 6351–01–P
CONSUMER PRODUCT SAFETY
COMMISSION
Sunshine Act Meeting Notice
Wednesday, October 31,
2012, 10:00 a.m.–11:00 a.m.
TIME AND DATE:
PO 00000
Frm 00017
Fmt 4703
Sfmt 4703
Room 420, Bethesda Towers,
4330 East West Highway, Bethesda,
Maryland.
STATUS: Commission Meeting—Open to
the Public.
MATTERS TO BE CONSIDERED: Briefing
Matter: Safety Standard for Bedside
Sleepers.
A live webcast of the Meeting can be
viewed at www.cpsc.gov/webcast
For a recorded message containing the
latest agenda information, call (301)
504–7948.
CONTACT PERSON FOR MORE INFORMATION:
Todd A. Stevenson, Office of the
Secretary, U.S. Consumer Product
Safety Commission, 4330 East West
Highway, Bethesda, MD 20814, (301)
504–7923.
PLACE:
Dated: October 23, 2012.
Todd A. Stevenson,
Secretary.
[FR Doc. 2012–26369 Filed 10–23–12; 4:15 pm]
BILLING CODE 6355–01–P
CORPORATION FOR NATIONAL AND
COMMUNITY SERVICE
Proposed Information Collection;
Comment Request
Corporation for National and
Community Service.
ACTION: Notice.
AGENCY:
The Corporation for National
and Community Service (CNCS), as part
of its continuing effort to reduce
paperwork and respondent burden,
conducts a pre-clearance consultation
program to provide the general public
and federal agencies with an
opportunity to comment on proposed
and/or continuing collections of
information in accordance with the
Paperwork Reduction Act of 1995
(PRA95) (44 U.S.C. 3506(c)(2)(A)). This
program helps to ensure that requested
data can be provided in the desired
format, reporting burden (time and
financial resources) is minimized,
collection instruments are clearly
understood, and the impact of collection
requirement on respondents can be
properly assessed.
Currently, CNCS is soliciting
comments concerning its proposed
revision of the National Service Trust
Interest Payment Form to update the
burden hour information. This form is
used by AmeriCorps members to request
interest payments on qualified loans
based on their AmeriCorps service, by
schools and lenders to verify their
eligibility, and by both parties to satisfy
certain legal requirements.
SUMMARY:
E:\FR\FM\25OCN1.SGM
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]]>Agencies
[Federal Register Volume 77, Number 207 (Thursday, October 25, 2012)]
[Notices]
[Pages 65177-65182]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-26298]
=======================================================================
-----------------------------------------------------------------------
COMMODITY FUTURES TRADING COMMISSION
Swap Data Repositories: Interpretative Statement Regarding the
Confidentiality and Indemnification Provisions of the Commodity
Exchange Act
AGENCY: Commodity Futures Trading Commission.
ACTION: Interpretative statement.
-----------------------------------------------------------------------
SUMMARY: The Commodity Futures Trading Commission (``Commission'' or
``CFTC'') is issuing this interpretative statement (``Statement'') to
provide guidance regarding the applicability of the confidentiality and
indemnification provisions set forth in new section 21(d) of the
Commodity Exchange Act (``CEA'') added by section 728 of the Dodd-Frank
Wall Street Reform and Consumer Protection Act (``Dodd-Frank Act'').
This Statement clarifies that the provisions of CEA section 21(d)
should not operate to inhibit or prevent foreign regulatory authorities
from accessing data in which they have an independent and sufficient
regulatory interest, even if that data also has been reported pursuant
to the CEA and Commission regulations.
DATES: Effective date: October 25, 2012
FOR FURTHER INFORMATION CONTACT: Adedayo Banwo, Counsel, Office of the
General Counsel, at (202) 418.6249, abanwo@cftc.gov; With respect to
questions relating to international consultation and coordination:
Jacqueline Mesa, Director, at (202) 418.5386, jmesa@cftc.gov, or
Mauricio Melara, Attorney-Advisor, at (202) 418.5719, mmelara@cftc.gov,
Office of International Affairs, Commodity Futures Trading Commission,
Three Lafayette Centre, 1155 21st Street NW., Washington, DC 20581.
SUPPLEMENTARY INFORMATION:
I. Background: Statutory and Regulatory Authorities
On July 21, 2010, President Obama signed into law the Dodd-Frank
Act.\1\ Title VII amended the CEA to establish a comprehensive new
regulatory framework for swaps and security-based swaps.\2\ The
legislation was enacted to reduce risk, increase transparency and
promote market integrity within the financial system by, among other
things: (i) Providing for the registration and comprehensive regulation
of swap dealers and major swap participants; (ii) imposing clearing and
trade execution requirements on standardized derivative products; (iii)
creating robust recordkeeping and real-time reporting regimes; and (iv)
enhancing the Commission's rulemaking and enforcement authorities with
respect to, among others, all registered entities and intermediaries
subject to the Commission's oversight.
---------------------------------------------------------------------------
\1\ See Dodd-Frank Wall Street Reform and Consumer Protection
Act, Public Law 111-203, 124 Stat. 1376 (2010), available at https://www.cftc.gov/LawRegulation/OTCDERIVATIVES/index.htm.
\2\ Pursuant to section 701 of the Dodd-Frank Act, Title VII may
be cited as the ``Wall Street Transparency and Accountability Act of
2010;'' 7 U.S.C. 1 et seq.
---------------------------------------------------------------------------
To enhance transparency, promote standardization and reduce
systemic risk, section 727 of the Dodd-Frank Act
[[Page 65178]]
added to the CEA new section 2(a)(13)(G),\3\ which requires all swaps--
whether cleared or uncleared--to be reported to swap data repositories
(``SDRs''). SDRs are new registered entities created by section 728 of
the Dodd-Frank Act.\4\ SDRs are required to perform specified functions
related to the collection and maintenance of swap transaction data and
information.\5\
---------------------------------------------------------------------------
\3\ 7 U.S.C. 2(a)(13)(G).
\4\ Section 721 of the Dodd-Frank Act amends section 1a of the
CEA to add a definition of the term ``swap data repository.''
Pursuant to CEA section 1a(48), the term ``swap data repository
means any person that collects and maintains information or records
with respect to transactions or positions in, or the terms and
conditions of, swaps entered into by third parties for the purpose
of providing a centralized recordkeeping facility for swaps.'' 7
U.S.C. 1a(48).
\5\ See 7 U.S.C. 24a(c). See also Commission, Final Rulemaking:
Swap Data Recordkeeping and Reporting Requirements, 77 FR 2136, Jan.
13, 2012 (``Data Final Rules''). The Data Final Rules, among other
things, set forth regulations governing SDR data collection and
reporting responsibilities under part 45 of the Commission's
regulations.
---------------------------------------------------------------------------
CEA section 21(c)(7) requires that SDRs make data available to
certain domestic and foreign regulators \6\ under specified
circumstances.\7\ Separately, CEA section 21(d) mandates that prior to
receipt of any requested data or information from an SDR, a regulatory
authority described in section 21(c)(7) shall agree in writing to abide
by the confidentiality requirements described in section 8 of the
CEA,\8\ and to indemnify the SDR and the Commission for any expenses
arising from litigation relating to the information provided under
section 8 of the CEA.\9\
---------------------------------------------------------------------------
\6\ The Commission's regulations designate such regulators as
either an ``Appropriate Domestic Regulator'' or an ``Appropriate
Foreign Regulator'' in Sec. 49.17(b). See Swap Data Repositories:
Registration Standards, Duties and Core Principles, 76 FR 54538,
54554 (Sep. 1, 2011) (``SDR Final Rules'').
\7\ 7 U.S.C. 24a(c)(7).
\8\ 7 U.S.C. 12.
\9\ 7 U.S.C. 24a(d).
---------------------------------------------------------------------------
Section 752 of the Dodd-Frank Act seeks to ``promote effective and
consistent global regulation of swaps,'' and provides that the CFTC and
foreign regulatory authorities ``may agree to such information-sharing
arrangements as may be deemed to be necessary or appropriate in the
public interest. * * *.'' \10\ In light of this statutory directive,
and consistent with section 21 of the CEA, the Commission has been
working to provide sufficient access to SDR data to domestic and
foreign regulators.
---------------------------------------------------------------------------
\10\ See section 752(a) of the Dodd-Frank Act.
---------------------------------------------------------------------------
In that regard, the Chairman of the CFTC and the Chairman of the
Securities and Exchange Commission (``Chairmen'') jointly submitted a
letter to Michel Barnier, European Commissioner for Internal Markets
and Services,\11\ highlighting their desire for international
cooperation. In the letter, the Chairmen expressed their belief that
indemnification and notice requirements need not apply when a
registered SDR is also registered in a foreign jurisdiction and the
foreign regulatory authority, acting within the scope of its
jurisdiction, seeks information directly from the SDR.
---------------------------------------------------------------------------
\11\ See letter from Gary Gensler, Chairman of the Commission,
and Mary Schapiro, Chairman of the SEC, to Michel Barnier, European
Commissioner for Internal Markets and Services, European Commission,
dated June 8, 2011.
---------------------------------------------------------------------------
On September 1, 2011, the Commission adopted regulations
implementing CEA section 21's registration standards, duties, and core
principles for SDRs.\12\ To implement the provisions of sections
21(c)(7) and (d), the Commission adopted definitions and standards for
determining access by domestic and foreign regulators to data
maintained by SDRs.
---------------------------------------------------------------------------
\12\ See, generally, SDR Final Rules.
---------------------------------------------------------------------------
The Commission acknowledged in the SDR Final Rules that the CEA's
indemnification requirement could have the unintended effect of
inhibiting direct access by other regulators to data maintained by SDRs
due to various home country laws and regulations.\13\ The SDR Final
Rules provided that under specified circumstances, certain
``Appropriate Domestic Regulators'' \14\ may gain access to the swap
data reported and maintained by SDRs without being subject to the
notice and indemnification requirements of CEA sections 21(c)(7) and
(d).\15\ In connection with foreign regulatory authorities, the
Commission determined in the SDR Final Rules that confidential swap
data reported to and maintained by an SDR may be accessed by an
Appropriate Foreign Regulator \16\ without the execution of a
confidentiality and indemnification agreement when the Appropriate
Foreign Regulator has supervisory authority over an SDR registered with
it pursuant to foreign law and/or regulation that is also registered
with the Commission.
---------------------------------------------------------------------------
\13\ See SDR Final Rules at 54554.
\14\ The term ``Appropriate Domestic Regulator'' is defined in
17 CFR 49.17(b)(1) as the Securities and Exchange Commission; each
prudential regulator identified in section 1a(39) of the CEA. 7
U.S.C. 1a(39); the Financial Stability Oversight Council; the
Department of Justice; any Federal Reserve Bank; the Office of
Financial Research; and any other person the Commission deems
appropriate.
\15\ In the Commission's view, it is appropriate to permit
access to the swap data maintained by SDRs to Appropriate Domestic
Regulators that have concurrent regulatory jurisdiction over such
SDRs, without the application of the notice and indemnification
provisions of sections 21(c)(7) and (d) of the CEA. See SDR Final
Rules at 54554 n.163. Accordingly, these provisions do not apply to
an Appropriate Domestic Regulator that has regulatory jurisdiction
over an SDR registered with it pursuant to a separate statutory
authority that is also registered with the Commission, if the
Appropriate Domestic Regulator executes a memorandum of
understanding (``MOU'') or similar information sharing arrangement
with the Commission and the Commission, consistent with CEA section
21(c)(4)(A), designates the Appropriate Domestic Regulator to
receive direct electronic access. See 17 CFR 17(d)(2).
\16\ The term ``Appropriate Foreign Regulator'' is defined in 17
CFR 49.17(b)(2) as a foreign regulator with an existing MOU or
similar type of information sharing arrangement executed with the
Commission, and/or a foreign regulator without an MOU as determined
on a case-by-case basis by the Commission.
---------------------------------------------------------------------------
The confidentiality and indemnification provisions of new CEA
section 21 apply only when a regulatory authority seeks access to data
from an SDR. In the SDR Final Rules, the Commission noted that section
8(e) of the CEA permits the Commission (as opposed to an SDR) to share
confidential information in its possession with any department or
agency of the Government of the United States, or with any foreign
futures authority, department or agency of any foreign government or
political subdivision thereof,\17\ acting within the scope of its
jurisdiction.\18\
---------------------------------------------------------------------------
\17\ Section 725(f) of the Dodd-Frank Act amended section 8(e)
of the CEA to include foreign central banks and ministries.
\18\ See SDR Final Rules at 54554.
---------------------------------------------------------------------------
The SDR Final Rules became effective on October 31, 2011.\19\ Under
these rules, trade repositories may apply to the Commission for full
registration as SDRs. Pending the full implementation of other, related
regulatory provisions and definitions, however, such registrations are
deemed ``provisional.'' \20\
---------------------------------------------------------------------------
\19\ Id.
\20\ See 17 CFR 49.3(b).
---------------------------------------------------------------------------
II. The Proposed Interpretative Statement
On May 1, 2012, the Commission issued a proposed interpretative
statement (``Proposed Statement'') to address issues raised by
interested members of the public and foreign regulatory authorities
with respect to the scope and application of the confidentiality and
indemnification provisions of new section 21(d) of the CEA.\21\ Under
the Proposed Statement, the Commission clarified that the
confidentiality and indemnification provisions of CEA section 21(d)
should not operate to inhibit or prevent foreign regulatory authorities
from accessing data in which they have an independent and sufficient
regulatory interest.
---------------------------------------------------------------------------
\21\ See 77 FR 26709 (May 7, 2012).
---------------------------------------------------------------------------
[[Page 65179]]
The Proposed Statement provided that a registered SDR would not be
subject to the confidentiality and indemnification provisions of CEA
section 21(d) if: (i) such registered SDR is also registered,
recognized or otherwise authorized in a foreign jurisdiction's
regulatory regime; and (ii) the data sought to be accessed by a foreign
regulatory authority has been reported to such registered SDR pursuant
to the foreign jurisdiction's regulatory regime. In addition, because
some registered SDRs might also be registered, recognized or otherwise
authorized in a foreign jurisdiction and may accept swap data reported
pursuant to a foreign regulatory regime, the Commission concluded that
the confidentiality and indemnification provisions of CEA section 21(d)
generally apply only to such data reported pursuant to the CEA and
Commission regulations.
As detailed in Section III.B., interested members of the public and
a foreign regulatory authority responded to the Commission's request to
receive public comments on all aspects of the Proposed Statement.\22\
In adopting this Statement, the Commission has carefully considered
these comments.
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\22\ See public comment file in response to the Proposed
Statement, available at https://comments.cftc.gov/PublicComments/CommentList.aspx?id=1198.
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III. Considerations Relevant to the Commission's Statement \23\
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\23\ Legislation has been introduced in Congress that would
amend the CEA to eliminate or substantially limit the SDR
indemnification provision. As discussed in Section III.B.,
commenters expressed the general view that a ``legislative fix''
would be the best course of action to resolve issues regarding the
section 21(d) requirements.
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A. International Considerations
As noted above, section 752(a) of the Dodd-Frank Act directs the
Commission to consult and coordinate with foreign regulatory
authorities regarding the establishment of consistent international
standards for the regulation of swaps and various ``swap entities.''
Section 752(a) also provides that the Commission ``may agree to such
information-sharing arrangements [with foreign regulatory authorities]
as may be deemed to be necessary or appropriate in the public
interest'' or for the protection of investors and counterparties.\24\
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\24\ See section 752(a) of the Dodd-Frank Act.
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The Commission is committed to a cooperative international approach
to the registration and regulation of SDRs, and consulted extensively
with various foreign regulatory authorities in promulgating both its
proposed and final regulations concerning SDRs and in the finalization
of the Proposed Statement.\25\ The Commission notes that the SDR Final
Rules are largely consistent with the recommendations and goals of the
May 2010 ``CPSS-IOSCO Consultative Report, Considerations for Trade
Repositories in the OTC Derivatives Market'' (``Working Group
Report'').\26\
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\25\ See public comment file in response to the proposal for the
SDR Final Rules, available at https://comments.cftc.gov/PublicComments/CommentList.aspx?id=939 and SDR Final Rules note 6 at
54539, supra.
\26\ This working group was jointly established by the Committee
on Payment and Settlement Systems (``CPSS'') of the Bank of
International Settlements and the Technical Committee of the
International Organization of Securities Commissions (``IOSCO'').
The Working Group Report presented a set of factors to consider in
connection with the design, operation and regulation of SDRs. A
significant focus of the Working Group Report is access to SDR data
by appropriate regulators. The Working Group Report urges that a
trade repository ``should support market transparency by making data
available to relevant authorities and the public in line with their
respective information needs.'' The Working Group Report is
available at https://www.bis.org/publ/cpss90.pdf. See also CPSS-IOSCO
Consultative Report, Principles of Financial Market Infrastructures
(March 2011) available at https://www.bis.org/publ/cpss94.pdf (``PFMI
Report''). See also Financial Stability Board (``FSB''),
Implementing OTC Derivatives Market Reforms, Oct. 25, 2010 (``FSB
Report''); FSB, Derivative Market Reforms, Progress Report on
Implementation, Apr. 15, 2010 (``FSB Progress Report'').
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Consistent with the international harmonization envisioned by
section 752 of the Dodd-Frank Act, the Commission has engaged in
consultations with foreign regulatory authorities regarding the
Commission's adoption and implementation of regulations and the
issuance of interpretative guidance relating to the Dodd-Frank Act. In
this context, foreign regulatory authorities have expressed concern
about the difficulty in complying with the indemnification provisions
of CEA section 21(d).
B. Comments on the Proposed Statement \27\
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\27\ The Commission received five comments, four of which regard
the Proposed Statement. All comment letters are available on the
Commission Web site at https://comments.cftc.gov/PublicComments/CommentList.aspx?id=1198. Specific comment letters are identified by
the submitter. Comments addressing the Proposed Statement were
received from: (i) The European Securities and Markets Authority,
June 5, 2012; (ii) the Financial Services Roundtable, June 6, 2012;
(iii) Cloud Strategix, LLC, June 5, 2012; and (iv) the Depository
Trust & Clearing Corporation, June 6, 2012. The fifth comment
regards the implementation of section 619 of the Dodd-Frank Act.
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The Depository Trust & Clearing Corporation (``DTCC'') stated its
support of the adoption of the Proposed Statement as a ``necessary
first step.'' Nevertheless, DTCC concluded that the statutory language
at issue requires a ``legislative fix'' to clarify the scope and
applicability of the confidentiality and indemnification provisions of
CEA section 21(d) because ``the indemnification requirement'' would
limit the sharing of trade repository data across borders. DTCC noted
that a foreign regulator might have an interest in SDR data related to
a swap transaction entered into by parties not subject to the foreign
regulator's ``oversight authority.'' In this regard, DTCC noted
concerns expressed by foreign regulatory authorities who believe that a
``jurisdictional nexus'' would nonetheless exist with respect to the
terms of swap transactions (e.g., swap transactions using currencies or
underlying reference entities subject to a foreign regulator's
oversight authority) that are not reported ``pursuant to the foreign
jurisdiction's regulatory regime.'' DTCC pointed out that access to
such swap transaction data that is not reported ``pursuant to the
foreign jurisdiction's regulatory regime'' would not be available
unless the foreign regulator enters into a confidentiality and
indemnification agreement with the SDR.
DTCC also suggested certain substantive modifications to the
Proposed Statement.\28\ Among them, DTCC suggested that the Commission
expand on the meaning of ``registered, recognized or otherwise
authorized'' in the Proposed Statement or, alternatively, state that
operation in accordance with the PFMI Report would mean that an SDR is
``authorized'' for purposes of this Statement.
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\28\ DTCC suggested that the Commission consider the following
modifications to the Proposed Statement: (i) Provide that no
registration or licensing would be necessary with respect to the
condition that a registered SDR is also registered, recognized or
otherwise authorized in a foreign jurisdiction's regulatory regime;
(ii) provide that SDRs operating in accordance with principles
relevant to trade repositories under the PFMI Report should be
deemed authorized; and (iii) provide that with respect to the
condition that the SDR data sought to be accessed by a foreign
regulator is reported pursuant to the foreign jurisdiction's
regulatory regime, the meaning attributed to regulatory regime
includes a foreign jurisdiction's adherence to the PFMI Report
provisions outlined for market regulators.
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The European Securities and Markets Authority (``ESMA'') noted that
it considers the Commission's ``recognition of foreign regimes and the
access to data requirements originating from them'' under the Proposed
Statement as a ``step in the right direction'' that would allow
relevant European authorities to obtain data in accordance with
relevant European Union laws and forthcoming
[[Page 65180]]
regulations. However, ESMA noted its concern that the Commission's
interpretation of the indemnification provision of CEA section 21(d)
``cannot overrule the [Dodd-Frank] Act itself'' and concluded that
``the confidentiality and indemnification issue could only be fully
addressed with a legislative amendment by repealing the original
provision in the Dodd-Frank Act.'' In addition, consistent in part with
DTCC's comment, ESMA noted that relevant European Union authorities
could have an interest in accessing swap transaction data reported to a
registered SDR pursuant to the Dodd-Frank Act, but not reported
pursuant to European Union laws and forthcoming regulations.
Accordingly, ESMA suggested certain modifications to the Proposed
Statement.\29\
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\29\ ESMA suggested that the Commission consider the following
alternative modifications to the Proposed Statement: (i) delete the
second condition of the Proposed Statement (i.e., ``The data sought
to be accessed by a foreign regulatory authority is reported to such
registered SDR pursuant to the foreign regulatory regime.''); or
(ii) add the following bracketed language to the second condition
such that it would read as follows: ``The data sought to be accessed
by a foreign regulatory authority has been reported to such
registered SDR pursuant to the foreign jurisdiction's regulatory
regime [or the foreign regulatory authority is entitled to access
such data pursuant to its regulatory regime to fulfill its
respective responsibilities and mandates.]''
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The Financial Services Roundtable (``FSR'') requested that the
Commission support a legislative solution which would remove the
indemnification provision from CEA section 21(d). FSR also requested
that the Commission continue its discussions with regulators in other
jurisdictions as well as its participation in standard-setting bodies
to develop international standards relevant to the swap markets.
Cloud Strategix, LLC (``Cloud Strategix''), representing the data
hosting and cloud computing industry, in relevant part expressed a
general concern with respect to the ``several costs, unintended
consequences, and impracticalities'' related to the Proposed Statement
and the SDR Final Rules. Specifically, Cloud Strategix noted that the
Proposed Statement ``does not seem to consider the great cost to the
data center that hosts the SDR in assisting the SDR with compliance
with foreign regulators.'' In this context, Cloud Strategix suggested
that the Commission ``provide an exemption for all data centers to
indemnify SDRs for regulatory inquiries, enforcement proceedings, or
litigation for both foreign and domestic regulators.''
C. Commission Determination
After considering the comments received to the Proposed Statement
and following the aforementioned consultations with foreign regulatory
authorities pursuant to the Congressional mandate for cooperation in
section 752 of the Dodd-Frank Act, the Commission has concluded that
the guidance described in the Proposed Statement is necessary to ensure
that appropriate access by foreign regulatory authorities is not
unnecessarily inhibited. Accordingly, while the SDR Final Rules address
foreign regulators with supervisory authority and regulatory
responsibility, the Commission is issuing this Statement to ensure that
foreign regulators receive sufficient access to data reported to SDRs
where such foreign regulators have an independent and sufficient
regulatory interest.
In response to DTCC's comment regarding expanding on the meaning of
``registered, recognized or otherwise authorized'' of the Proposed
Statement or, alternatively, stating that operation in accordance with
the PFMI Report would mean that an SDR is ``authorized'' for purposes
of this Statement, the Commission believes, consistent with DTCC's
comment, that a foreign regulator with ``oversight responsibilities''
of an SDR pursuant to the regulatory regime of the applicable foreign
jurisdiction would meet the ``registered, recognized or otherwise
authorized'' prong herein. Nonetheless, the Commission declines to
express a more detailed view on the regulatory or jurisdictional
structures applicable to SDRs governed within foreign jurisdictions
that would meet the ``registered, recognized or otherwise authorized''
prong herein. As the Commission indicated in its Proposed Statement,
access by foreign regulatory authorities ``should be governed by such
foreign jurisdiction's regulatory regime,'' and the Commission believes
that ``registered, recognized or otherwise authorized'' is sufficiently
broad to cover a wide variety of foreign regulatory structures and
regimes.
Similarly, and in response to DTCC's and ESMA's comment regarding
accessing data which is not reported pursuant to European Union laws
and forthcoming regulations, the Commission acknowledges the difficulty
that certain foreign regulators may face in this regard. The Commission
reiterates that foreign and domestic regulators may nonetheless be able
to receive confidential data from the Commission without the execution
of a confidentiality and indemnification agreement.
In response to FSR's comment regarding consultations and
participation with standard-setting bodies, the Commission agrees and
notes its participation in various international regulatory and
industry-led working groups.\30\
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\30\ Among the working groups the Commission is actively
participating in to develop consistent international standards are
the FSB, CPSS and IOSCO working group on data access (see infra n.
36), the Technical Committee of IOSCO which developed the ``Report
on OTC derivatives and aggregation requirements,'' and the FSB's
Legal Entity Identifier Expert Group.
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In response to the cost-benefit considerations raised by Cloud
Strategix, the Commission has previously acknowledged such costs in its
consideration of the costs and benefits of compliance with its SDR
Final Rules \31\ and Data Final Rules.\32\ The Commission does not
believe that the Proposed Statement changes or modifies its earlier
consideration of the costs and benefits of the applicable final rules.
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\31\ See SDR Final Rules, supra n. 6, at 54572.
\32\ See Data Final Rules, supra n. 5, at 2176.
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IV. Interpretative Statement
In consideration of the foregoing, the Commission is providing
guidance regarding the confidentiality and indemnification provisions
of CEA section 21(d) by adopting the substance of the Proposed
Statement. In this regard, the Commission seeks to ensure an orderly
transition to the Dodd-Frank Act's swap data reporting regime by
providing certainty to market participants and regulators with respect
to the confidentiality and indemnification provisions of CEA section
21(d).
A. Data Reported to Registered SDRs
The Commission understands that some registered SDRs also may be
registered, recognized or otherwise authorized in a foreign
jurisdiction and may accept swap data reported pursuant to the foreign
regulatory regime. The Commission concludes that the confidentiality
and indemnification provisions of CEA section 21(d) generally apply
only to such data reported pursuant to the CEA and Commission
regulations.
The Commission further concludes that the confidentiality and
indemnification provisions should not operate to inhibit or prevent
foreign regulatory authorities from accessing data in which they have
an independent and sufficient regulatory interest (even if that data
also has been reported
[[Page 65181]]
pursuant to the CEA and Commission regulations).
Accordingly, and consistent with the Commission's SDR Final Rules,
the Commission interprets CEA section 21(d) such that a registered SDR
would not be subject to the confidentiality and indemnification
provisions of that section if:
Such registered SDR also is registered, recognized or
otherwise authorized in a foreign jurisdiction's regulatory regime; and
The data sought to be accessed by a foreign regulatory
authority has been reported to such registered SDR pursuant to the
foreign jurisdiction's regulatory regime.
This Statement is grounded in principles of international law and
comity. For example, in F. Hoffmann-La Roche Ltd. v. Empagran S.A., the
U.S. Supreme Court, in reviewing the extraterritorial applicability of
a different federal statute, stated that extraterritorial jurisdiction
should be construed, where ambiguous, ``to avoid unreasonable
interference with the sovereign authority of other nations.''\33\ In
cases considering concepts of international law and comity in
evaluating the extraterritorial scope of federal statutes, the Supreme
Court has noted that the principles in the Third Restatement of Foreign
Relations Law are relevant to the interpretation of U.S. law.\34\
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\33\ F. Hoffmann-LaRoche, Ltd. v. Empagran S.A., 542 U.S. 155,
164 (2004). In Hoffmann-LaRoche, the Supreme Court also stated that
canons of statutory construction ``assume that legislators take
account of the legitimate sovereign interests of other nations when
they write American laws.'' Id.
\34\ Id. at 164-165.
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Specifically, section 403 of the Third Restatement of Foreign
Relations Law states, in relevant part:
Whether exercise of jurisdiction over a person or activity is
unreasonable is determined by evaluating all relevant factors,
including, where appropriate:
(a) The link of the activity to the territory of the regulating
state, i.e., the extent to which the activity takes place within the
territory, or has substantial, direct, and foreseeable effect upon
or in the territory;
(b) The connections, such as nationality, residence, or economic
activity, between the regulating state and the person principally
responsible for the activity to be regulated, or between that state
and those whom the regulation is designed to protect;
(c) The character of the activity to be regulated, the
importance of regulation to the regulating state, the extent to
which other states regulate such activities, and the degree to which
the desirability of such regulation is generally accepted;
(d) The existence of justified expectations that might be
protected or hurt by the regulation;
(e) The importance of the regulation to the international
political, legal, or economic system;
(f) The extent to which the regulation is consistent with the
traditions of the international system;
(g) The extent to which another state may have an interest in
regulating the activity; and
(h) The likelihood of conflict with regulation by another
state.\35\
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\35\ Rest. 3d., Third Restatement Foreign Relations Law section
403 (scope of a statutory grant of authority must be construed in
the context of international law and comity including, as
appropriate, the extent to which regulation is consistent with the
traditions of the international system).
To avoid unnecessary interference with the sovereign authority of
foreign regulatory authorities, this Statement is supported and
underpinned by principles of international law and comity.
B. Foreign Regulatory Access
In the Commission's view, a foreign regulator's access to data held
in a registered SDR that also is registered, recognized, or otherwise
authorized in a foreign jurisdiction's regulatory regime, should be
governed by such foreign jurisdiction's regulatory regime where the
data sought to be accessed has been reported pursuant to that
regulatory regime. The Commission concludes that it is appropriate not
to apply the requirements of CEA section 21(d) in these circumstances,
in light of, among other things, the importance of such data to the
foreign jurisdiction's regulatory regime, foreign regulators' interest
in unfettered access to such data, and the traditions of mutual trust
and cooperation among international regulators.\36\
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\36\ The Commission notes that access to data held by trade
repositories is a concept under discussion and development among
international regulators. At the request of the FSB, CPSS and IOSCO
have established a working group of relevant authorities to produce
a forthcoming report regarding authorities' access to trade
repository data.
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Therefore, the Commission concludes that a foreign regulator's
access to data from a registered SDR that also is registered,
recognized, or otherwise authorized in a foreign jurisdiction's
regulatory regime, where the data to be accessed has been reported
pursuant to that regulatory regime, will be dictated by that foreign
jurisdiction's regulatory regime and not by the CEA or Commission
regulations. Such access is appropriate, in the Commission's view, even
if the applicable data is also reported to the registered SDR pursuant
to the Commission's Data Final Rules.\37\
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\37\ Regarding the Commission's access to SDR data, section
21(b)(1)(A) of the CEA states that the Commission ``shall prescribe
standards that specify the data elements for each swap that shall be
collected and maintained by each registered swap data repository.''
Section 21(c)(1) of the CEA requires registered SDRs to ``accept
data prescribed by the Commission for each swap under subsection
(b).'' With respect to Commission access to data held in registered
SDRs, the Commission concludes that the direct electronic access
provisions of CEA section 21(c)(4) apply only to such data that the
SDR is required to accept under section 21(c)(1), which is further
defined by part 45 of the Commission's regulations. In this respect,
the Commission concludes that its direct electronic access applies
only to such data reported pursuant to section 21 and Commission
regulations promulgated thereunder.
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Additionally, the Commission reiterates that a foreign regulatory
authority, like domestic regulators, can nonetheless receive
confidential data, without the execution of a confidentiality and
indemnification agreement, from the Commission (as opposed to an SDR)
pursuant to section 8(e) of the CEA.\38\ Such data sharing and access
would be governed by the confidentiality provisions of section 8 of the
CEA.\39\ The Commission is committed to continuing its close
cooperation with: (i) foreign regulatory authorities to promptly
address such information requests; and (ii) registered SDRs that
request the Commission's assistance in determining if a foreign
regulatory authority has an independent and regulatory interest in data
that has been reported to such registered SDR pursuant to the relevant
foreign jurisdiction's regulatory regime.
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\38\ CEA section 8(e), 7 U.S.C. 12(e), allows the Commission to
share confidential information in its possession obtained in
connection with the administration of the CEA with ``any department
or agency of the Government of the United States'' or with any
foreign futures authority or a department, central bank or ministry,
or agency of a foreign government or political subdivision thereof,
acting within the scope of its jurisdiction.
\39\ 7 U.S.C. 12.
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* * * * *
Issued in Washington, DC on October 22, 2012 by the Commission.
Stacy D. Yochum,
Counsel.
Appendices to Swap Data Repositories: Interpretative Statement
Regarding the Confidentiality and Indemnification Provisions of Section
21(d) of the Commodity Exchange Act--
Note: The following appendices will not appear in the Code of
Federal Regulations.
Appendix 1--Commission Voting Summary
On this matter, Chairman Gensler and Commissioners Chilton and
Wetjen voted in the affirmative; Commissioners Sommers and O'Malia
voted in the negative.
Appendix 2--Statement of Chairman Gary Gensler
I support the final interpretative guidance regarding the
confidentiality and
[[Page 65182]]
indemnification provisions of the Dodd-Frank Wall Street Reform and
Consumer Protection Act (Dodd-Frank Act).
The confidentiality and indemnification provisions in the Dodd-
Frank Act state that before a registered swap data repository (SDR)
may share information with certain domestic and foreign regulators,
those regulators must first agree in writing to abide by the
confidentiality provisions of Section 8 of the Commodity Exchange
Act (CEA). In addition, the Dodd-Frank Act requires that regulators
also must indemnify both the SDR and the Commodity Futures Trading
Commission (Commission) for any expenses arising from litigation
relating to the information provided under Section 8 of the CEA.
The Commission recognizes the importance to foreign regulators
of swap data reported under foreign regulatory regimes. The
Commission's final SDR rules specified that confidential swap data
reported to and maintained by an SDR may be accessed by an
``appropriate foreign regulator'' without a confidentiality and
indemnification agreement when the SDR is also registered with that
foreign regulator.
To provide further clarity for foreign regulators, the
Commission is issuing this interpretative guidance on the Dodd-Frank
Act confidentiality and indemnification provisions. The final
interpretative guidance makes clear that a foreign regulator will
not be prevented from accessing data in which it has an independent
and sufficient regulatory authority over the SDR and such data has
been reported pursuant to the foreign jurisdiction's regulatory
regime.
With this interpretive guidance, the Commission has taken
another important step to ensure appropriate access to SDRs by
foreign regulatory authorities consistent with the provisions of the
Dodd-Frank Act.
Appendix 3--Statement of Commissioners Jill E. Sommers and Scott D.
O'Malia
We respectfully dissent from issuing this Final Interpretative
Statement Regarding the Confidentiality and Indemnification
Provisions of Section 21(d) of the Commodity Exchange Act (CEA)
(Final Interpretative Statement). When the Commission issued the
proposed guidance (Proposed Interpretative Statement) in May of this
year, we were concerned that the statement did not actually solve
the problem with the statutory language beyond providing some
additional clarity to the Swap Data Repository (SDR) rules and we
called for a permanent solution by way of a legislative repeal of
the indemnification provisions.
When finalizing the SDR rules, the Commission stated that a
foreign regulator may have direct access to confidential swap data
reported to and maintained by an SDR registered with the Commission
without executing a Confidentiality and Indemnification Agreement
when the SDR is also registered with the foreign regulator and the
foreign regulator is acting in a regulatory capacity with respect to
the SDR. See Swap Data Repositories: Registration Standards, Duties
and Core Principles, 76 FR 54,538, 54,554 (Sept. 1, 2011). The Final
Interpretative Statement expands this to SDRs that are registered,
recognized or otherwise authorized in a foreign regulator's
regulatory regime and clarifies that direct access to data should be
granted even if the data the foreign regulator seeks also has been
reported pursuant to the CEA and Commission regulations.
The Commission received a comment from the European Securities
and Markets Authority (ESMA) suggesting that we consider modifying
the conditions that would need to be met so that a foreign regulator
could escape being subject to the indemnification provisions.
Specifically, ESMA suggested that the Commission consider the
following alternative modifications: (1) delete the second condition
of the Proposed Interpretative Statement, (i.e., ``The data sought
to be accessed by a foreign regulatory authority is reported to such
registered SDR pursuant to the foreign regulatory regime''), which
would leave the sole condition that the SDR be registered,
recognized or otherwise authorized in the foreign regulatory regime;
or (2) add language to the second condition such that it would read
as follows: ``The data sought to be accessed by a foreign regulatory
authority has been reported to such registered SDR pursuant to the
foreign jurisdiction's regulatory regime or the foreign regulatory
authority is entitled to access such data pursuant to its regulatory
regime to fulfill its respective responsibilities and mandates.''
Although the Commission acknowledges the comment in the Final
Interpretative Statement, we do not adopt either suggestion and do
not justify their exclusion.
Our second concern involves the distinction the Commission made
in the SDR rules between an Appropriate Domestic Regulator and an
Appropriate Domestic Regulator with Regulatory Responsibilities.
Under the current rules only the CFTC and the SEC are able to
directly access SDR data absent an indemnification agreement. All
other U.S. Regulators (i.e. ``Appropriate Domestic Regulators'')
would have to execute an indemnification agreement--something that
we are told they are prohibited from doing. Adopting the second ESMA
option and extending it to Appropriate Domestic Regulators would
allow them direct access to data they believe is necessary to
fulfill their regulatory mandate, and in our view is something that
is within the Commission's discretion. Instead, the Commission has
purposely chosen to interpret the statute in a manner that
constrains other domestic regulators' ability to examine swap market
data. For these reasons we cannot support the guidance issued today
by the Commission.
[FR Doc. 2012-26298 Filed 10-24-12; 8:45 am]
BILLING CODE 6351-01-P
