Definitions of “Portfolio Reconciliation” and “Material Terms” for Purposes of Swap Portfolio Reconciliation, 27309-27314 [2016-10565]
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Federal Register / Vol. 81, No. 88 / Friday, May 6, 2016 / Rules and Regulations
Subtitle I, Section 106 describes the
authority of the FAA Administrator.
Subtitle VII, Aviation Programs,
describes in more detail the scope of the
agency’s authority. This rulemaking is
promulgated under the authority
described in Subtitle VII, Part A,
Subpart I, Section 40103. Under that
section, the FAA is charged with
prescribing regulations to assign the use
of airspace necessary to ensure the
safety of aircraft and the efficient use of
airspace. This regulation is within the
scope of that authority as it amends
controlled airspace at Sharp County
Regional Airport, Ash Flat, AR.
History
In a review of the airspace, the FAA
found that the airport designation and
airport name for Cherokee Village
Airport, AR, as published in FAA Order
7400.9Z, Airspace Designations and
Reporting Points, has changed. This is
an administrative change removing
Cherokee Village, AR, from the Class E
designation, and establishing Ash Flat,
AR, in its place, and changing the
airport name from Cherokee Village
Airport to Sharp County Regional
Airport, Ash Flat, AR. The geographic
coordinates of the airport also are
adjusted.
Class E airspace designations are
published in paragraph 6005 of FAA
Order 7400.9Z dated August 6, 2015,
and effective September 15, 2015, which
is incorporated by reference in 14 CFR
71.1. The Class E airspace designations
listed in this document will be
published subsequently in the Order.
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Availability and Summary of
Documents for Incorporation by
Reference
This document amends FAA Order
7400.9Z, Airspace Designations and
Reporting Points, dated August 6, 2015,
and effective September 15, 2015. FAA
Order 7400.9Z is publicly available as
listed in the ADDRESSES section of this
document. FAA Order 7400.9Z lists
Class A, B, C, D, and E airspace areas,
air traffic service routes, and reporting
points.
The Rule
This action amends Title 14, Code of
Federal Regulations (14 CFR) part 71 by
removing the airport designation
Cherokee Village, AR, and airport name
of Cherokee Village Airport from Class
E airspace extending upward from 700
feet above the surface, and establishing
the new designation, Ash Flat, AR; and
airport name, Sharp County Regional
Airport, Ash Flat, AR, in its place. The
geographic coordinates of the airport
also are adjusted.
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This is an administrative change
amending the airspace designation for
Sharp County Regional Airport, Ash
Flat, AR, to be in concert with the
FAA’s aeronautical database, and does
not affect the boundaries or operating
requirements of the airspace; therefore,
notice and public procedure under 5
U.S.C. 553(b) are unnecessary.
Regulatory Notices and Analyses
The FAA has determined that this
regulation only involves an established
body of technical regulations for which
frequent and routine amendments are
necessary to keep them operationally
current, is non-controversial and
unlikely to result in adverse or negative
comments. It, therefore: (1) Is not a
‘‘significant regulatory action’’ under
Executive Order 12866; (2) is not a
‘‘significant rule’’ under DOT
Regulatory Policies and Procedures (44
FR 11034; February 26, 1979); and (3)
does not warrant preparation of a
regulatory evaluation as the anticipated
impact is so minimal. Since this is a
routine matter that only affects air traffic
procedures and air navigation, it is
certified that this rule, when
promulgated, does not have a significant
economic impact on a substantial
number of small entities under the
criteria of the Regulatory Flexibility Act.
Environmental Review
Lists of Subjects in 14 CFR Part 71
Airspace, Incorporation by reference,
Navigation (air).
Adoption of the Amendment
In consideration of the foregoing, the
Federal Aviation Administration
amends 14 CFR part 71 as follows:
PART 71—DESIGNATION OF CLASS A,
B, C, D, AND E AIRSPACE AREAS; AIR
TRAFFIC SERVICE ROUTES; AND
REPORTING POINTS
1. The authority citation for Part 71
continues to read as follows:
■
Authority: 49 U.S.C. 106(f), 106(g); 40103,
40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR,
1959–1963 Comp., p. 389.
Frm 00015
Fmt 4700
Sfmt 4700
[Amended]
2. The incorporation by reference in
14 CFR 71.1 of FAA Order 7400.9Z,
Airspace Designations and Reporting
Points, dated August 6, 2015, effective
September 15, 2015, is amended as
follows:
■
Paragraph 6005 Class E Airspace Areas
Extending Upward From 700 Feet or More
Above the Surface of the Earth.
*
*
*
*
*
ASW AR E5 Ash Flat, AR [New]
Sharp County Regional Airport, AR
(Lat. 36°15′54″ N., long. 91°33′46″ W.)
That airspace extending upward from 700
feet above the surface within a 6.5-mile
radius of Sharp County Regional Airport.
ASW AR E5
[Removed]
Cherokee Village, AR
Issued in Fort Worth, Texas, on April 19,
2016.
Walter Tweedy,
Acting Manager, Operations Support Group,
ATO Central Service Center.
[FR Doc. 2016–10556 Filed 5–5–16; 8:45 am]
BILLING CODE 4910–13–P
COMMODITY FUTURES TRADING
COMMISSION
17 CFR Part 23
RIN 3038–AE17
The FAA has determined that this
action qualifies for categorical exclusion
under the National Environmental
Policy Act in accordance with FAA
Order 1050.1F, ‘‘Environmental
Impacts: Policies and Procedures,’’
paragraph 5–6.5.a. This airspace action
is not expected to cause any potentially
significant environmental impacts, and
no extraordinary circumstances exist
that warrant preparation of an
environmental assessment.
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§ 71.1
27309
Definitions of ‘‘Portfolio
Reconciliation’’ and ‘‘Material Terms’’
for Purposes of Swap Portfolio
Reconciliation
Commodity Futures Trading
Commission.
ACTION: Final rule.
AGENCY:
The Commodity Futures
Trading Commission (‘‘Commission’’ or
‘‘CFTC’’) is amending its regulations in
connection with the terms for which
counterparties must exchange and
resolve discrepancies when engaging in
portfolio reconciliation.
DATES: The final rule is effective May 6,
2016.
FOR FURTHER INFORMATION CONTACT:
Frank N. Fisanich, Chief Counsel, 202–
418–5949, ffisanich@cftc.gov; Katherine
S. Driscoll, Associate Chief Counsel,
202–418–5544, kdriscoll@cftc.gov;
Gregory Scopino, Special Counsel, 202–
418–5175, gscopino@cftc.gov, Division
of Swap Dealer and Intermediary
Oversight, Commodity Futures Trading
Commission, Three Lafayette Centre,
1155 21st Street NW., Washington, DC
20581.
SUPPLEMENTARY INFORMATION:
SUMMARY:
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Federal Register / Vol. 81, No. 88 / Friday, May 6, 2016 / Rules and Regulations
I. Proposed Rule
Under § 23.502 of the Commission’s
regulations,1 swap dealers (‘‘SD’’) and
major swap participants (‘‘MSP’’), as
defined in § 1.3 of the Commission’s
regulations, must reconcile their swap
portfolios with one another and provide
non-SD and non-MSP counterparties
with regular opportunities for portfolio
reconciliation.2 Section 23.500(i) 3
defines the term ‘‘portfolio
reconciliation’’ as any process by which
the two parties to one or more swaps:
(1) Exchange the terms of all swaps in
the swap portfolio between the
counterparties; (2) exchange each
counterparty’s valuation of each swap in
the swap portfolio between the
counterparties as of the close of
business on the immediately preceding
business day; and (3) resolve any
discrepancy in material terms and
valuations. Section 23.500(g) defines
‘‘material terms’’ to mean all terms of a
swap required to be reported in
accordance with part 45 of this chapter.4
On September 22, 2015, the
Commission proposed to amend the
definition of ‘‘material terms’’ in
§ 23.500(g) to exclude nine specific data
fields (the ‘‘Proposal’’).5 It was then—
and remains so now—the intention of
the Commission to alleviate the burden
1 17
CFR 23.502.
CFR 23.502; see Confirmation, Portfolio
Reconciliation, Portfolio Compression, and Swap
Trading Relationship Documentation Requirements
for Swap Dealers and Major Swap Participants, 77
FR 55904 (Sept. 11, 2012) (‘‘Portfolio Reconciliation
Final Rule’’) at 55926.
3 17 CFR 23.500(i).
4 17 CFR 23.500(g). Part 45 of the Commission
regulations governs swap data recordkeeping and
reporting requirements. The swap terms that must
be reported under part 45 are found in appendix 1
to part 45. See 17 CFR part 45, App. 1; see also 17
CFR 45.1 (defining ‘‘primary economic terms’’ as all
of the terms of a swap matched or affirmed by the
counterparties in verifying the swap, including at
a minimum each of the terms included in the most
recent Federal Register release by the Commission
listing minimum primary economic terms for swaps
in the swap asset class in question and stating that
the current list of minimum primary economic
terms is in appendix 1); Swap Data Recordkeeping
and Reporting Requirements, 77 FR 2197 (Jan. 13,
2012) (promulgating the list of primary economic
terms). Examples of primary economic terms
include the price of the swap, payment frequency,
type of contract (e.g., a ‘‘vanilla option’’ or
‘‘complex exotic option’’), execution timestamp,
and, if the swap is a multi-asset class swap, the
primary and secondary asset classes. 17 CFR part
45, App. 1.
5 Proposal to Amend the Definition of ‘‘Material
Terms’’ for Purposes of Swap Portfolio
Reconciliation, 80 FR 57129, Sept. 22, 2015. The
Commission’s Division of Swap Dealer and
Intermediary Oversight had previously provided
SDs and MSPs with no-action relief stating it would
not recommend an enforcement action against an
SD or MSP that omits eleven specific data fields
from the portfolio reconciliation process required
under § 23.502. See CFTC Letter 13–31 (June 26,
2013).5
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2 17
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of resolving discrepancies with respect
to a swap that are not relevant to the
ongoing rights and obligations of the
parties and the valuation of the swap
without impairing the Commission’s
regulatory mission.6 The nine excluded
data fields from the Proposal
(hereinafter referred to as the ‘‘Proposed
Excluded Data Fields’’) are:
1. An indication that the swap will be
allocated;
2. If the swap will be allocated, or is
a post-allocation swap, the legal entity
identifier 7 of the agent;
3. An indication that the swap is a
post-allocation swap;
4. If the swap is a post-allocation
swap, the unique swap identifier; 8
5. Block trade indicator;
6. With respect to a cleared swap, the
execution timestamp;
7. With respect to a cleared swap, the
timestamp for submission to swap data
repository (‘‘SDR’’);
8. Clearing indicator; and
9. Clearing venue.9
In the Proposal, the Commission
asked for comments on a number of
issues related to the appropriate scope
of portfolio reconciliation. For example,
the Commission asked for comment on
whether counterparties should only
have to exchange the ‘‘material terms’’
of swaps or whether counterparties
should be required to exchange all terms
of swaps (material or not).10 The
Commission also sought comment
concerning, among other things,
whether additional data fields should be
excluded from portfolio reconciliation
exercises.11
6 See
the Proposal, 80 FR at 57131.
legal entity identifier is a 20-digit, alphanumeric code, to uniquely identify legally distinct
entities that engage in financial transactions. See
Legal Entity Identifier Regulatory Oversight
Committee, https://www.leiroc.org/; 17 CFR 45.6.
8 A unique swap identifier is a unique identifier
assigned to all swap transactions which identifies
the transaction (the swap and its counterparties)
uniquely throughout the duration of the swap’s
existence. See 17 CFR 45.5.
9 The Proposed Excluded Data Fields modified
the No-Action Excluded Data Fields by: (1)
Amending the execution timestamp data field to be
specific to cleared swaps; (2) amending the
timestamp for submission to an SDR data field to
be specific to cleared swaps; (3) removing the data
field containing an indication of whether the
clearing requirement exception in CEA section
2(h)(7) has been elected with respect to an
uncleared swap; and (4) removing the data field
containing the identity of the counterparty electing
the clearing requirement exception in CEA section
2(h)(7). The Commission proposed to retain those
data fields for uncleared swaps as ‘‘material terms’’
because a discrepancy in this information in the
records of the counterparties could mean that the
related information is erroneous in the records of
an SDR, which could have an impact on the
Commission’s regulatory mission.
10 Proposal, 80 FR at 57132.
11 Id.
7A
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II. Summary of Comments
In response to the Proposal, the
Commission received four comments.12
All of the commenters supported going
further than the Proposal by, for
example, allowing counterparties to
avoid having to reconcile non-material
terms. None of the commenters wanted
the Commission to keep § 23.500 as it
was. Additionally, none of the
commenters suggested that the
Commission do less than was proposed
to reduce the burdens associated with
portfolio reconciliation exercises. All
four commenters urged the Commission
to further reduce the scope of terms that
must be reconciled for discrepancies
than what had been suggested in the
Proposal.
In particular, Chris Barnard of
Germany stated that he supported
‘‘amending the definition of ‘material
terms’ to not include terms that are not
relevant to the valuation of swaps
portfolios’’ and amending ‘‘§ 23.500(i)(1)
so that counterparties only have to
exchange the ‘material terms’ (which
would not include the Proposed
Excluded Data Fields) of swaps.’’ 13
Likewise, the Japanese Bankers
Association recommended that the
Commission amend § 23.500(i)(1) so
that swap counterparties only have to
exchange the ‘‘material terms’’ of swaps,
consistent with the Proposed Excluded
Data Fields.14 The Japanese Bankers
Association further stated that ‘‘[t]he
removal of the data reconciliation
requirement of the Proposed Excluded
Data Fields will generate significant cost
savings.’’ 15
Additionally, consistent with the
Proposal, Freddie Mac stated that it
‘‘believes that the Commission should
continue to exclude the execution
timestamp and [SDR] submission
timestamp data fields with respect to
non-cleared swap transactions from the
definition of ‘material terms’ under
23.500(g) for purposes of compliance
with the portfolio reconciliation
requirements of 23.502.’’ 16
In addition, ISDA commented that it
believes that ‘‘[t]he data fields that need
to be exchanged and those which need
to be reconciled should be the same’’ in
12 These comment letters are on the Commission’s
Web site at https://comments.cftc.gov/Public
Comments/CommentList.aspx?id=1619.
13 See Letter from Chris Barnard (Nov. 17, 2015),
https://comments.cftc.gov/PublicComments/
ViewComment.aspx?id=60560&SearchText=.
14 Letter from the Japanese Bankers Association
(Nov. 16, 2015), https://comments.cftc.gov/
PublicComments/
ViewComment.aspx?id=60556&SearchText=.
15 Id.
16 Letter from FreddieMac (Nov. 23, 2015), https://
comments.cftc.gov/PublicComments/
ViewComment.aspx?id=60563&SearchText=.
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Federal Register / Vol. 81, No. 88 / Friday, May 6, 2016 / Rules and Regulations
that ‘‘[t]hese should only include data
fields which were agreed upon between
the parties as a term of the swap and
[are] relevant to the mutual obligations
of a swap.’’ 17 ISDA agreed with the
exclusion of the Proposed Excluded
Data Fields for purposes of portfolio
reconciliation but believes that the
Commission should further expand the
list of excluded items. ISDA suggests
that the Commission define, ‘‘material
terms,’’ such that it would be limited to
the primary economic terms of a swap,
minus 25 specific data elements
referenced in Appendix A to ISDA’s
comment letter.18 The data elements in
question are otherwise required to be
reported under Part 45, but are not,
according to ISDA, relevant to the
mutual obligations and valuation of
swaps.19
ISDA’s 25 recommended excluded
terms are the following:
1. An indication of whether the
reporting counterparty is a SD with
respect to the swap;
2. An indication of whether the
reporting party is an MSP with respect
to the swap;
3. If the reporting counterparty is not
an SD or a MSP with respect to the
swap, an indication of whether the
reporting counterparty is a financial
entity as defined in section 2(h)(7)(c) of
the Commodity Exchange Act (‘‘Act’’);
4. An indication of whether the
reporting counterparty is a U.S. person;
5. An indication that the swap will be
allocated;
6. If the swap will be allocated, or is
a post-allocation swap, the legal entity
identifier of the agent;
7. An indication of whether the swap
is a post-allocation swap;
8. If the swap is a post-allocation
swap, the unique swap identifier of the
original transaction between the
reporting counterparty and the agent;
9. An indication of whether the nonreporting counterparty is an SD with
respect to the swap;
10. An indication of whether the nonreporting counterparty is an MSP with
respect to the swap;
11. If the non-reporting counterparty
is not an SD or an MSP with respect to
the swap, an indication of whether the
reporting counterparty is a financial
entity as defined in section 2(h)(7)(c) of
the Act;
12. An indication of whether the nonreporting counterparty is a U.S. person;
13. An indication that the swap is a
multi-asset swap;
17 Letter from ISDA, at 4 (Nov. 20, 2015), https://
comments.cftc.gov/PublicComments/
ViewComment.aspx?id=60561&SearchText=.
18 Id. at 2.
19 Id.
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14. For a multi-asset swap, an
indication of the primary asset class;
15. For a multi-asset swap, an
indication of the secondary asset
class(es);
16. An indication that the swap is a
mixed swap;
17. For a mixed swap reported to two
non-dually-registered swap data
repositories, the identity of the other
SDR (if any) to which the swap is or will
be reported;
18. Block trade indicator;
19. Execution timestamp;
20. Timestamp for submission to SDR;
21. Clearing indicator;
22. Clearing venue;
23. If the swap will not be cleared, an
indication of whether the clearing
requirement exception in section 2(h)(7)
of the Act was elected;
24. The identity of the counterparty
electing the clearing requirement
exception in section 2(h)(7) of the Act;
and
25. Any other term(s) of the swap
matched or affirmed by the
counterparties in verifying the swap.20
With respect to the twenty-fifth term,
ISDA stated that such term was ‘‘[n]ot
suitable for material terms
reconciliation’’ because ‘‘[u]ndefined
data fields cannot be reconciled
between parties or supported by
portfolio reconciliation.’’ 21
III. Final Rule
After careful consideration, the
Commission has decided to finalize the
rule by: (1) Modifying § 23.500(i)(1) to
define ‘‘portfolio reconciliation’’ as,
inter alia, any process by which the two
parties to one or more swaps exchange
the material terms of all swaps in the
swap portfolio between the
counterparties, and (2) modifying
§ 23.500(g) to define ‘‘material terms’’ to
mean the minimum primary economic
terms of a swap, as defined in appendix
1 of part 45 of the Commission’s
regulations, other than the first 24 terms
listed above.
After analyzing and considering the
materiality of such terms, the
Commission believes that the terms are
not material for purposes of portfolio
reconciliation exercises. Specifically,
the Commission has determined that
these 24 data fields: (i) Pertain to static
items about entering into the swap; (ii)
pertain to static data fields about a
party’s status; (iii) are only relevant to
cleared transactions; (iv) are data which
is not agreed, exchanged, or confirmed
between the parties; or (v) are not
relevant to the swap’s daily valuation.
20 Id.
21 Id.
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27311
The Commission also believes that the
removal of these terms from
reconciliations would alleviate the
burden of resolving discrepancies in
terms of a swap that are not relevant to
the ongoing rights and obligations of the
parties and the valuation of the swap
without impairing the Commission’s
regulatory mission. The Commission’s
view of these ‘‘Excluded Data Fields’’
only applies to the ‘‘portfolio
reconciliation’’ process and has no
bearing on other obligations that
counterparties must adhere to, such as,
but not limited to, recordkeeping and
reporting obligations. Thus the final rule
would make the portfolio reconciliation
process more efficient without harming
the Commission’s ability to regulate the
market. Accordingly, the Commission
has decided to adopt the 24 terms as the
‘‘Excluded Data Fields’’ to be listed in
§ 23.500(g)’s definition of material
terms.
The twenty-fifth data field listed
above—‘‘[a]ny other term(s) of the swap
matched or affirmed by the
counterparties in verifying the swap’’—
is a provision that could include terms,
unlike the 24 excluded terms above, that
would be relevant to or affect the
valuation of the swap or the ongoing
rights and obligations of the
counterparties.22 Additionally,
reconciling terms captured by this data
field only covers terms that are matched
or affirmed by the counterparties in
verifying the swap, and terms that are
matched or affirmed by the
counterparties must, in any event, be
memorialized and recorded, thereby
providing a basis for counterparties to
know which data fields must be
included in portfolio reconciliation
exercises. Accordingly, the Commission
is not persuaded that the twenty-fifth
data field is ambiguous and has
determined not to exclude it from the
definition of material terms.
The Commission will, however,
provide an additional measure of
certainty to swap counterparties in the
final rule by modifying the definition of
‘‘material terms’’ in § 23.500(g) to mean
the minimum primary economic terms
as defined in appendix 1 of part 45 of
22 For example, the Commission has stated that
this field could include terms such as an ‘‘early
termination option clause’’ in an interest-rate swap.
See Exhibit C in appendix 1 to part 45; see also
Exhibit C to appendix 1 to part 45 (listing the
minimum primary economic terms data for foreign
exchange transactions other than cross-currency
swaps, and stating that the field for any other
term(s) of the swap matched or affirmed by the
counterparties in verifying the trade would include,
for options, premium, premium currency, premium
payment date; for non-deliverable trades, settlement
currency, valuation (fixing) date; indication of the
economic obligations of the counterparties).
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Federal Register / Vol. 81, No. 88 / Friday, May 6, 2016 / Rules and Regulations
the Commission’s regulations (as
opposed to meaning the primary
economic terms more generally, without
reference to the minimum terms
enumerated in appendix (1), minus the
Excluded Data Fields. Under this
approach, market participants looking
for the list of terms or data fields that
must be exchanged during portfolio
reconciliation exercises can look to the
tables in appendix 1 to part 45 (minus
the 24 Excluded Data Fields), which
primarily feature concrete terms.
With these modifications to the
existing regulations, the final rule will
make it such that the terms that must be
exchanged during portfolio
reconciliation exercises will be identical
to the terms that have to be resolved for
discrepancies, both of which will be
reduced from what was required under
the regulations as originally
promulgated. The Commission is
finalizing the rule as such because the
Commission believes that modifying the
rule in this manner will provide for a
streamlined and efficient portfolio
reconciliation process that will continue
to provide counterparties (and the
Commission) with sufficient
information about swap transactions.
Accordingly, the Commission believes
that the Final Rule will result in fewer
‘‘false positives’’ and provide for an
overall more effective portfolio
reconciliation process.
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IV. Administrative Compliance
A. Regulatory Flexibility Act
The Regulatory Flexibility Act 23
requires that agencies consider whether
the rules they propose will have a
significant economic impact on a
substantial number of small entities
and, if so, provide a regulatory
flexibility analysis reflecting the impact.
For purposes of resolving any
discrepancy in material terms and
valuations, the final rule amends the
definition in § 23.500(g) of the
Commission regulations so that the term
‘‘material terms’’ is defined as the
minimum primary economic terms of a
swap other than the 24 Excluded Data
Fields. In connection with portfolio
reconciliation, § 23.500(i)(1) requires
counterparties to exchange the material
terms of all swaps, which is now
consistent with § 23.500(i)(3), which
requires counterparties to resolve any
discrepancy in ‘‘material terms’’ and
valuations. As a result of the change to
the definition of ‘‘material terms’’ in
§ 23.500(g) of the Commission
regulations, SDs and MSPs will not be
required to include the 24 Excluded
23 5
U.S.C. 601 et seq.
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Data Fields in portfolio reconciliations.
Accordingly, counterparties also will
not have to resolve discrepancies of
material terms or valuations in
connection with the 24 Excluded Data
Fields. The Commission has previously
determined that SDs and MSPs are not
small entities for purposes of the
Regulatory Flexibility Act.24
Thus, for the reasons stated above, the
Commission believes that the
amendments to the definitions of
‘‘material terms’’ and ‘‘portfolio
reconciliation’’ will not have a
significant economic impact on a
substantial number of small entities.
Accordingly, the Chairman, on behalf of
the Commission, hereby certifies,
pursuant to 5 U.S.C. 605(b), that the
regulations in this Federal Register
release will not have a significant
economic impact on a substantial
number of small entities.
B. Paperwork Reduction Act
The Paperwork Reduction Act of 1995
(‘‘PRA’’) 25 imposes certain
requirements on Federal agencies,
including the Commission, in
connection with their conducting or
sponsoring any collection of
information, as defined by the PRA. An
agency may not conduct or sponsor, and
a person is not required to respond to,
a collection of information unless it
displays a currently valid control
number.
In connection with the proposal, the
Commission anticipated that, if adopted
the Final Rule would require an
amendment to existing collection of
information OMB Control Number
3038–0068 with respect to the collection
of information entitled ‘‘Confirmation,
Portfolio Reconciliation, and Portfolio
Compression Requirements for Swap
Dealers and Major Swap
Participants.’’ 26 The Commission
therefore submitted this proposal to the
Office of Management and Budget
(OMB) for review. The Commission
previously had discussed, for purposes
24 Policy Statement and Establishment of
Definitions of ‘‘Small Entities’’ for Purposes of the
Regulatory Flexibility Act, 47 FR 18618, 18619
(Apr. 30, 1982). The Regulatory Flexibility Act is
limited to direct impact to small entities and not on
indirect impacts on these businesses, which may be
tenuous and difficult to discern. See Mid-Tex Elec.
Coop., Inc. v. FERC, 773 F.2d 327, 340 (D.C. Cir.
1985); Am. Trucking Assns. v. EPA, 175 F.3d 1027,
1043 (D.C. Cir. 1985). Nonetheless, the Commission
notes that any financial end-users that may be
indirectly impacted by the proposed rule are likely
to be eligible contract participants, and, as such,
they would not be small entities. See Opting Out
of Segregation, 66 FR 20740, 20743 (Apr. 25, 2001).
25 44 U.S.C. 3501 et seq.
26 See OMB Control No. 3038–0068, https://
www.reginfo.gov/public/do/
PRAOMBHistory?ombControlNumber=3038-0068.
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of the PRA, the burden 27 that the
regulation mandating, inter alia,
portfolio reconciliation would impose
on market participants.28 In particular,
the Commission estimated the burden to
be 1,282.5 hours for each SD and MSP,
and the aggregate burden for SDs and
MSPs—based on a then-projected 125
SDs and MSPs—was 160,312.5 burden
hours.29
The final rule amends the definition
in § 23.500(g) of the Commission
regulations so that the term ‘‘material
terms’’ means the minimum primary
economic terms of a swap other than the
24 Excluded Data Fields.30 As noted
above, under the final rule, clause (1) of
the definition of ‘‘portfolio
reconciliation’’ in § 23.500(i) requires
the parties to exchange the material
terms of all swaps between them and
clause (3) of § 23.500(i) requires parties
to resolve any discrepancy in ‘‘material
terms’’ and valuations. The change will
clarify that SDs and MSPs are not
required to include the 24 Excluded
Data Fields in portfolio reconciliations
or in any resolution of discrepancies of
material terms or valuations.
As discussed above, the final rule
reduces the number of ‘‘material terms’’
that counterparties are required to
exchange and resolve for discrepancies
during portfolio reconciliations, but will
not eliminate the overall portfolio
reconciliation requirement itself. The
Commission stated that it believed that
the Proposal would reduce the time
burden for portfolio reconciliation by
one burden hour for each SD and MSP,
which would reduce the annual burden
to 1,281.5 hours per SD and MSP. The
Commission stated that it believed that
the Proposal would result in one hour
of less work for computer programmers
for SDs and MSPs because the
programmers who have to match the
needed data fields from two different
databases would have fewer data fields
to obtain and resolve for discrepancies.
In the Proposal, the Commission
estimated that, given that there are 106
provisionally registered SDs and MSPs,
the proposed amendment would result
in an aggregate burden of 135,839
27 ‘‘For purposes of the PRA, the term ‘burden’
means the ‘time, effort, or financial resources
expended by persons to generate, maintain, or
provide information to or for a Federal Agency.’ ’’
Portfolio Reconciliation Final Rule, 77 FR at 55959.
28 Portfolio Reconciliation Final Rule, 77 FR at
55958–60.
29 Portfolio Reconciliation Final Rule, 77 FR at
55959.
30 As noted earlier, the final rule is amending the
definition of the term, ‘‘material terms,’’ at
§ 23.500(g) to exclude 24 data fields that will not
be considered ‘‘material terms’’ for the purposes of
‘‘portfolio reconciliation’’ as that term is defined in
§ 23.500(i)(3).
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burden hours if adopted. The final rule,
however, will reduce the time burden
on SDs and MSPs even more than what
was included in the proposal, and there
is one less provisionally registered MSP.
In light of the fact that the final rule will
remove 24 data fields entirely from
portfolio reconciliations, and based on a
total of 105 (as opposed to 106)
provisionally registered SDs and MSPs,
the Commission believes that the final
rule will reduce the time burden for
portfolio reconciliation by
approximately eight burden hours for
each SD and MSP, which would reduce
the annual burden to 1,274.5 hours per
SD and MSP, with an aggregate burden
of 133,822.5. In the Proposal, the
Commission invited the public and
other Federal agencies to comment on
any aspect of the reporting burdens
discussed above, but did not receive any
such comments.
Lhorne on DSK30JT082PROD with RULES
C. Considerations of Costs and Benefits
Section 15(a) of the Act requires the
Commission to consider the costs and
benefits of its actions before
promulgating a regulation under the Act
or issuing an order. Section 15(a) further
specifies that the costs and benefits
shall be evaluated in light of the
following five broad areas of market and
public concern: (1) Protection of market
participants and the public; (2)
efficiency, competitiveness, and
financial integrity of futures markets; (3)
price discovery; (4) sound risk
management practices; and (5) other
public interest considerations. The
Commission considers the costs and
benefits resulting from its discretionary
determinations with respect to the
section 15(a) factors.
1. Background
The Commission believes that, while
portfolio reconciliation generally helps
counterparties to manage risk,
commentators were persuasive in their
arguments that portfolio reconciliation
should only involve exchanging and
resolving discrepancies in material
terms, and that material terms should
not include the 24 Excluded Data Fields
mentioned above. The Commission has
been convinced that exchanging the 24
Excluded Data Fields does not improve
the management of risks in swaps
portfolios. By eliminating the
requirement to exchange data fields that
do not impact the valuation of the swap
or the payment obligations of the
counterparties and thereby reducing the
number of data fields that parties must
resolve for differences in portfolio
reconciliation exercises, the
Commission believes the final rule will
decrease the costs that its current
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Jkt 238001
regulations impose on SDs and MSPs
(and their counterparties) without a
concomitant reduction in the benefits
obtained from portfolio reconciliation
exercises under the existing regulatory
framework, as described below.
For purposes of considering the costs
and benefits of the final rule, the
Commission has used its current rules
as the baseline. Currently,
counterparties to swap transactions
must exchange certain data elements for
each swap, and then compare these and
validate each element, even where the
element is not relevant to the valuation
of the swap or the payment obligations
of the counterparties. The final rule
circumscribes this process to include
only those data elements that are
relevant on an ongoing basis to the
valuation of the swap or the payment
obligations of the counterparties.
Accordingly, the Commission does not
believe the final rule will impose any
new costs on SDs, MSPs, or their
counterparties.
2. Costs
Rather, as described below, the
Commission believes that, in the
aggregate, the final rule will decrease
the costs that its regulations impose on
SDs and MSPs (and their counterparties)
because it would eliminate the
requirement to exchange and resolve
discrepancies in swap terms that remain
constant (or that do not impact the
valuation of swaps or the payment
obligations of the counterparties) and
thereby reduce the number of data fields
requiring particular attention in
portfolio reconciliation exercises.
The Commission does not believe the
final rule will impair the Commission’s
ability to oversee and regulate the swaps
markets. Portfolio reconciliation is
designed to enable counterparties to
understand the current status or value of
swap terms. Because the Commission’s
proposal only is removing terms from
the general portfolio reconciliation
process that are not critical to the
valuation of the swap or to the ongoing
obligations of the counterparties, it will
not negatively impact the amount of
information available to the
Commission about swaps. The
Commission believes that this final rule
will reduce SDs,’ MSPs,’ or their
counterparties’ costs of complying with
Commission regulations because it will
reduce the number of terms that
counterparties must exchange during
portfolio reconciliations.
3. Benefits
The Commission believes that the
final rule will reduce the annual burden
hours for each SD and MSP by four
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27313
hours, resulting in a total of 1,278.5
hours, which leads to an aggregate
number, based on 105 registrants, of
134,242.5 burden hours. The
Commission previously estimated that,
assuming 1,282.5 annual burden hours
per SD and MSP, the financial cost of its
regulations on each SD and MSP would
be $128,250.31 Therefore, based on
those prior estimates, an eight-hour
reduction in the annual burden hours
for each SD and MSP would result in a
financial cost of $127,450 per registrant.
Accordingly, the Commission estimates
that the aggregate financial burden of its
regulations on the 105 provisionally
registered SDs and MSPs would be
$13,382,250.32
In addition, the Commission believes
that the final rule benefits SDs, MSPs,
and their counterparties because it will
enable them to focus on reconciling data
fields that actually impact the
valuations of swaps and the obligations
of the counterparties. Potentially, this
change will enable the portfolio
reconciliation process to be more
efficient without reducing its usefulness
as a risk management tool.
4. Section 15(a)
Section 15(a) of the Act requires the
Commission to consider the effects of its
actions in light of the following five
factors:
a. Protection of Market Participants and
the Public
For the reasons discussed above, the
Commission believes that,
notwithstanding its decision to remove
the 24 Excluded Data Fields from the
list of material terms that counterparties
must exchange during portfolio
reconciliations, its regulations will
continue to protect market participants
and the public.
b. Efficiency, Competitiveness, and
Financial Integrity of Markets
For the reasons discussed above, the
Commission believes that the final rule
will increase resource allocation
efficiency of market participants
engaging in reconciliation exercises
without increasing the risk of harm to
the financial integrity of markets.
c. Price Discovery
For the reasons discussed above, the
Commission did not identify any impact
on price discovery as a result of the
proposed regulation, and did not believe
there would be one, but sought
31 Portfolio Reconciliation Final Rule, 77 FR at
55959.
32 Previously, the Commission had estimated that,
if 125 entities had registered as SDs and MSPs, the
aggregate burden would be $16,031,250. Id.
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Federal Register / Vol. 81, No. 88 / Friday, May 6, 2016 / Rules and Regulations
comment as to any potential impact.
The Commission did not receive any
comments on this issue. Accordingly,
the Commission continues to believe the
final rule will not impact price
discovery.
d. Sound Risk Management
For the reasons discussed above, the
Commission believes that the final rule
is consistent with sound risk
management practices because the
regulatory change will not impair an
entity’s ability to conduct portfolio
reconciliations.
e. Other Public Interest Considerations
The Commission did not identify any
other public interest considerations, but
welcomed comment on whether the
proposal would promote public
confidence in the integrity of derivatives
markets by ensuring meaningful
regulation and oversight of all SDs and
MSPs. The Commission did not receive
any comments about this issue.
List of Subjects in 17 CFR Part 23
Authority delegations (Government
agencies), Commodity futures,
Reporting and recordkeeping
requirements.
For the reasons stated in the
preamble, the Commodity Futures
Trading Commission amends 17 CFR
part 23 as set forth below:
PART 23—SWAP DEALERS AND
MAJOR SWAP PARTICIPANTS
1. The authority citation for part 23
continues to read as follows:
■
Authority: 7 U.S.C. 1a, 2, 6, 6a, 6b, 6b–1,
6c, 6p, 6r, 6s, 6t, 9, 9a, 12, 12a, 13b, 13c, 16a,
18, 19, 21.
2. In § 23.500, revise paragraphs (g)
and (i)(1) to read as follows:
■
§ 23.500
Definitions.
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*
*
*
*
*
(g) Material terms means the
minimum primary economic terms (as
defined in Appendix 1 of part 45 of this
chapter) of a swap other than the
following:
(1) An indication of whether the
reporting counterparty is a swap dealer
with respect to the swap;
(2) An indication of whether the
reporting party is a major swap
participant with respect to the swap;
(3) If the reporting counterparty is not
a swap dealer or a major swap
participant with respect to the swap, an
indication of whether the reporting
counterparty is a financial entity as
defined in section 2(h)(7)(c) of the Act;
(4) An indication of whether the
reporting counterparty is a U.S. person;
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Jkt 238001
(5) An indication that the swap will
be allocated;
(6) If the swap will be allocated, or is
a post-allocation swap, the legal entity
identifier of the agent;
(7) An indication of whether the swap
is a post-allocation swap;
(8) If the swap is a post-allocation
swap, the unique swap identifier of the
original transaction between the
reporting counterparty and the agent;
(9) An indication of whether the nonreporting counterparty is a swap dealer
with respect to the swap;
(10) An indication of whether the
non-reporting counterparty is a major
swap participant with respect to the
swap;
(11) If the non-reporting counterparty
is not a swap dealer or a major swap
participant with respect to the swap, an
indication of whether the reporting
counterparty is a financial entity as
defined in section 2(h)(7)(c) of the Act;
(12) An indication of whether the
non-reporting counterparty is a U.S.
person;
(13) An indication that the swap is a
multi-asset swap;
(14) For a multi-asset swap, an
indication of the primary asset class;
(15) For a multi-asset swap, an
indication of the secondary asset
class(es);
(16) An indication that the swap is a
mixed swap;
(17) For a mixed swap reported to two
non-dually-registered swap data
repositories, the identity of the other
swap data repository (if any to which
the swap is or will be reported;
(18) Block trade indicator;
(19) Execution timestamp;
(20) Timestamp for submission to
swap data repository;
(21) Clearing indicator;
(22) Clearing venue;
(23) If the swap will not be cleared,
an indication of whether the clearing
requirement exception in section 2(h)(7)
of the Act was elected; and
(24) The identity of the counterparty
electing the clearing requirement
exception in section 2(h)(7) of the Act.
*
*
*
*
*
(i) * * *
(1) Exchange the material terms of all
swaps in the swap portfolio between the
counterparties;
*
*
*
*
*
Amendments to the Definitions of
‘‘Portfolio Reconciliation’’ and
‘‘Material Terms’’ for Purposes of Swap
Portfolio Reconciliation—Commission
Voting Summary and Commissioner’s
Statement
Appendix 1—Commission Voting
Summary
On this matter, Chairman Massad and
Commissioners Bowen and Giancarlo voted
in the affirmative. No Commissioner voted in
the negative.
Appendix 2—Statement of
Commissioner J. Christopher Giancarlo
I support the final rule amending the
definitions of portfolio reconciliation and
material terms for purposes of swap portfolio
reconciliation. I commend the Commission
and Division of Swap Dealer & Intermediary
Oversight staff for replacing no-action relief
with a rulemaking subject to a cost-benefit
analysis and the notice and comment
requirements of the Administrative
Procedure Act.
In the proposal I raised two concerns. First,
I questioned the logic of the proposed rule to
require the exchange of all terms throughout
the life of a swap as part of a portfolio
reconciliation exercise, but then require
reconciliation of only the material terms. I
am pleased that the Commission has
amended the definition of portfolio
reconciliation to require the exchange of
material terms so that the terms that must be
exchanged are the same as those that must be
reconciled.
Second, I questioned the logic of the
proposed rule to treat as material terms, and
thus require the reconciliation of, data fields
that will not change over time, such as
execution timestamp and timestamp for
submission to a swap data repository. I am
also pleased that the Commission has revised
the definition of material terms to mean the
minimum primary economic terms as
defined in appendix 1 of part 45 of the
Commission’s regulations and to exclude
several additional data fields that are not
relevant to the ongoing rights and obligations
of the parties and the valuation of the swap.
The final rule streamlines the portfolio
reconciliation process and reduces costs for
market participants without undermining the
Commission’s objectives for portfolio
reconciliation. The final rule is much
improved from the proposal so I am pleased
to support it.
[FR Doc. 2016–10565 Filed 5–5–16; 8:45 am]
BILLING CODE 6351–01–P
Issued in Washington, DC, on May 2, 2016,
by the Commission.
Robert N. Sidman,
Deputy Secretary of the Commission.
Note: The following appendices will not
appear in the Code of Federal Regulations.
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Agencies
[Federal Register Volume 81, Number 88 (Friday, May 6, 2016)]
[Rules and Regulations]
[Pages 27309-27314]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-10565]
=======================================================================
-----------------------------------------------------------------------
COMMODITY FUTURES TRADING COMMISSION
17 CFR Part 23
RIN 3038-AE17
Definitions of ``Portfolio Reconciliation'' and ``Material
Terms'' for Purposes of Swap Portfolio Reconciliation
AGENCY: Commodity Futures Trading Commission.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Commodity Futures Trading Commission (``Commission'' or
``CFTC'') is amending its regulations in connection with the terms for
which counterparties must exchange and resolve discrepancies when
engaging in portfolio reconciliation.
DATES: The final rule is effective May 6, 2016.
FOR FURTHER INFORMATION CONTACT: Frank N. Fisanich, Chief Counsel, 202-
418-5949, ffisanich@cftc.gov; KatherineS. Driscoll, Associate Chief
Counsel, 202-418-5544, kdriscoll@cftc.gov; Gregory Scopino, Special
Counsel, 202-418-5175, gscopino@cftc.gov, Division of Swap Dealer and
Intermediary Oversight, Commodity Futures Trading Commission, Three
Lafayette Centre, 1155 21st Street NW., Washington, DC 20581.
SUPPLEMENTARY INFORMATION:
[[Page 27310]]
I. Proposed Rule
Under Sec. 23.502 of the Commission's regulations,\1\ swap dealers
(``SD'') and major swap participants (``MSP''), as defined in Sec. 1.3
of the Commission's regulations, must reconcile their swap portfolios
with one another and provide non-SD and non-MSP counterparties with
regular opportunities for portfolio reconciliation.\2\ Section
23.500(i) \3\ defines the term ``portfolio reconciliation'' as any
process by which the two parties to one or more swaps: (1) Exchange the
terms of all swaps in the swap portfolio between the counterparties;
(2) exchange each counterparty's valuation of each swap in the swap
portfolio between the counterparties as of the close of business on the
immediately preceding business day; and (3) resolve any discrepancy in
material terms and valuations. Section 23.500(g) defines ``material
terms'' to mean all terms of a swap required to be reported in
accordance with part 45 of this chapter.\4\
---------------------------------------------------------------------------
\1\ 17 CFR 23.502.
\2\ 17 CFR 23.502; see Confirmation, Portfolio Reconciliation,
Portfolio Compression, and Swap Trading Relationship Documentation
Requirements for Swap Dealers and Major Swap Participants, 77 FR
55904 (Sept. 11, 2012) (``Portfolio Reconciliation Final Rule'') at
55926.
\3\ 17 CFR 23.500(i).
\4\ 17 CFR 23.500(g). Part 45 of the Commission regulations
governs swap data recordkeeping and reporting requirements. The swap
terms that must be reported under part 45 are found in appendix 1 to
part 45. See 17 CFR part 45, App. 1; see also 17 CFR 45.1 (defining
``primary economic terms'' as all of the terms of a swap matched or
affirmed by the counterparties in verifying the swap, including at a
minimum each of the terms included in the most recent Federal
Register release by the Commission listing minimum primary economic
terms for swaps in the swap asset class in question and stating that
the current list of minimum primary economic terms is in appendix
1); Swap Data Recordkeeping and Reporting Requirements, 77 FR 2197
(Jan. 13, 2012) (promulgating the list of primary economic terms).
Examples of primary economic terms include the price of the swap,
payment frequency, type of contract (e.g., a ``vanilla option'' or
``complex exotic option''), execution timestamp, and, if the swap is
a multi-asset class swap, the primary and secondary asset classes.
17 CFR part 45, App. 1.
---------------------------------------------------------------------------
On September 22, 2015, the Commission proposed to amend the
definition of ``material terms'' in Sec. 23.500(g) to exclude nine
specific data fields (the ``Proposal'').\5\ It was then--and remains so
now--the intention of the Commission to alleviate the burden of
resolving discrepancies with respect to a swap that are not relevant to
the ongoing rights and obligations of the parties and the valuation of
the swap without impairing the Commission's regulatory mission.\6\ The
nine excluded data fields from the Proposal (hereinafter referred to as
the ``Proposed Excluded Data Fields'') are:
---------------------------------------------------------------------------
\5\ Proposal to Amend the Definition of ``Material Terms'' for
Purposes of Swap Portfolio Reconciliation, 80 FR 57129, Sept. 22,
2015. The Commission's Division of Swap Dealer and Intermediary
Oversight had previously provided SDs and MSPs with no-action relief
stating it would not recommend an enforcement action against an SD
or MSP that omits eleven specific data fields from the portfolio
reconciliation process required under Sec. 23.502. See CFTC Letter
13-31 (June 26, 2013).5
\6\ See the Proposal, 80 FR at 57131.
---------------------------------------------------------------------------
1. An indication that the swap will be allocated;
2. If the swap will be allocated, or is a post-allocation swap, the
legal entity identifier \7\ of the agent;
---------------------------------------------------------------------------
\7\ A legal entity identifier is a 20-digit, alpha-numeric code,
to uniquely identify legally distinct entities that engage in
financial transactions. See Legal Entity Identifier Regulatory
Oversight Committee, https://www.leiroc.org/; 17 CFR 45.6.
---------------------------------------------------------------------------
3. An indication that the swap is a post-allocation swap;
4. If the swap is a post-allocation swap, the unique swap
identifier; \8\
---------------------------------------------------------------------------
\8\ A unique swap identifier is a unique identifier assigned to
all swap transactions which identifies the transaction (the swap and
its counterparties) uniquely throughout the duration of the swap's
existence. See 17 CFR 45.5.
---------------------------------------------------------------------------
5. Block trade indicator;
6. With respect to a cleared swap, the execution timestamp;
7. With respect to a cleared swap, the timestamp for submission to
swap data repository (``SDR'');
8. Clearing indicator; and
9. Clearing venue.\9\
---------------------------------------------------------------------------
\9\ The Proposed Excluded Data Fields modified the No-Action
Excluded Data Fields by: (1) Amending the execution timestamp data
field to be specific to cleared swaps; (2) amending the timestamp
for submission to an SDR data field to be specific to cleared swaps;
(3) removing the data field containing an indication of whether the
clearing requirement exception in CEA section 2(h)(7) has been
elected with respect to an uncleared swap; and (4) removing the data
field containing the identity of the counterparty electing the
clearing requirement exception in CEA section 2(h)(7). The
Commission proposed to retain those data fields for uncleared swaps
as ``material terms'' because a discrepancy in this information in
the records of the counterparties could mean that the related
information is erroneous in the records of an SDR, which could have
an impact on the Commission's regulatory mission.
---------------------------------------------------------------------------
In the Proposal, the Commission asked for comments on a number of
issues related to the appropriate scope of portfolio reconciliation.
For example, the Commission asked for comment on whether counterparties
should only have to exchange the ``material terms'' of swaps or whether
counterparties should be required to exchange all terms of swaps
(material or not).\10\ The Commission also sought comment concerning,
among other things, whether additional data fields should be excluded
from portfolio reconciliation exercises.\11\
---------------------------------------------------------------------------
\10\ Proposal, 80 FR at 57132.
\11\ Id.
---------------------------------------------------------------------------
II. Summary of Comments
In response to the Proposal, the Commission received four
comments.\12\ All of the commenters supported going further than the
Proposal by, for example, allowing counterparties to avoid having to
reconcile non-material terms. None of the commenters wanted the
Commission to keep Sec. 23.500 as it was. Additionally, none of the
commenters suggested that the Commission do less than was proposed to
reduce the burdens associated with portfolio reconciliation exercises.
All four commenters urged the Commission to further reduce the scope of
terms that must be reconciled for discrepancies than what had been
suggested in the Proposal.
---------------------------------------------------------------------------
\12\ These comment letters are on the Commission's Web site at
https://comments.cftc.gov/PublicComments/CommentList.aspx?id=1619.
---------------------------------------------------------------------------
In particular, Chris Barnard of Germany stated that he supported
``amending the definition of `material terms' to not include terms that
are not relevant to the valuation of swaps portfolios'' and amending
``Sec. 23.500(i)(1) so that counterparties only have to exchange the
`material terms' (which would not include the Proposed Excluded Data
Fields) of swaps.'' \13\
---------------------------------------------------------------------------
\13\ See Letter from Chris Barnard (Nov. 17, 2015), https://comments.cftc.gov/PublicComments/ViewComment.aspx?id=60560&SearchText=.
---------------------------------------------------------------------------
Likewise, the Japanese Bankers Association recommended that the
Commission amend Sec. 23.500(i)(1) so that swap counterparties only
have to exchange the ``material terms'' of swaps, consistent with the
Proposed Excluded Data Fields.\14\ The Japanese Bankers Association
further stated that ``[t]he removal of the data reconciliation
requirement of the Proposed Excluded Data Fields will generate
significant cost savings.'' \15\
---------------------------------------------------------------------------
\14\ Letter from the Japanese Bankers Association (Nov. 16,
2015), https://comments.cftc.gov/PublicComments/ViewComment.aspx?id=60556&SearchText=.
\15\ Id.
---------------------------------------------------------------------------
Additionally, consistent with the Proposal, Freddie Mac stated that
it ``believes that the Commission should continue to exclude the
execution timestamp and [SDR] submission timestamp data fields with
respect to non-cleared swap transactions from the definition of
`material terms' under 23.500(g) for purposes of compliance with the
portfolio reconciliation requirements of 23.502.'' \16\
---------------------------------------------------------------------------
\16\ Letter from FreddieMac (Nov. 23, 2015), https://comments.cftc.gov/PublicComments/ViewComment.aspx?id=60563&SearchText=.
---------------------------------------------------------------------------
In addition, ISDA commented that it believes that ``[t]he data
fields that need to be exchanged and those which need to be reconciled
should be the same'' in
[[Page 27311]]
that ``[t]hese should only include data fields which were agreed upon
between the parties as a term of the swap and [are] relevant to the
mutual obligations of a swap.'' \17\ ISDA agreed with the exclusion of
the Proposed Excluded Data Fields for purposes of portfolio
reconciliation but believes that the Commission should further expand
the list of excluded items. ISDA suggests that the Commission define,
``material terms,'' such that it would be limited to the primary
economic terms of a swap, minus 25 specific data elements referenced in
Appendix A to ISDA's comment letter.\18\ The data elements in question
are otherwise required to be reported under Part 45, but are not,
according to ISDA, relevant to the mutual obligations and valuation of
swaps.\19\
---------------------------------------------------------------------------
\17\ Letter from ISDA, at 4 (Nov. 20, 2015), https://comments.cftc.gov/PublicComments/ViewComment.aspx?id=60561&SearchText=.
\18\ Id. at 2.
\19\ Id.
---------------------------------------------------------------------------
ISDA's 25 recommended excluded terms are the following:
1. An indication of whether the reporting counterparty is a SD with
respect to the swap;
2. An indication of whether the reporting party is an MSP with
respect to the swap;
3. If the reporting counterparty is not an SD or a MSP with respect
to the swap, an indication of whether the reporting counterparty is a
financial entity as defined in section 2(h)(7)(c) of the Commodity
Exchange Act (``Act'');
4. An indication of whether the reporting counterparty is a U.S.
person;
5. An indication that the swap will be allocated;
6. If the swap will be allocated, or is a post-allocation swap, the
legal entity identifier of the agent;
7. An indication of whether the swap is a post-allocation swap;
8. If the swap is a post-allocation swap, the unique swap
identifier of the original transaction between the reporting
counterparty and the agent;
9. An indication of whether the non-reporting counterparty is an SD
with respect to the swap;
10. An indication of whether the non-reporting counterparty is an
MSP with respect to the swap;
11. If the non-reporting counterparty is not an SD or an MSP with
respect to the swap, an indication of whether the reporting
counterparty is a financial entity as defined in section 2(h)(7)(c) of
the Act;
12. An indication of whether the non-reporting counterparty is a
U.S. person;
13. An indication that the swap is a multi-asset swap;
14. For a multi-asset swap, an indication of the primary asset
class;
15. For a multi-asset swap, an indication of the secondary asset
class(es);
16. An indication that the swap is a mixed swap;
17. For a mixed swap reported to two non-dually-registered swap
data repositories, the identity of the other SDR (if any) to which the
swap is or will be reported;
18. Block trade indicator;
19. Execution timestamp;
20. Timestamp for submission to SDR;
21. Clearing indicator;
22. Clearing venue;
23. If the swap will not be cleared, an indication of whether the
clearing requirement exception in section 2(h)(7) of the Act was
elected;
24. The identity of the counterparty electing the clearing
requirement exception in section 2(h)(7) of the Act; and
25. Any other term(s) of the swap matched or affirmed by the
counterparties in verifying the swap.\20\
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\20\ Id.
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With respect to the twenty-fifth term, ISDA stated that such term
was ``[n]ot suitable for material terms reconciliation'' because
``[u]ndefined data fields cannot be reconciled between parties or
supported by portfolio reconciliation.'' \21\
---------------------------------------------------------------------------
\21\ Id.
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III. Final Rule
After careful consideration, the Commission has decided to finalize
the rule by: (1) Modifying Sec. 23.500(i)(1) to define ``portfolio
reconciliation'' as, inter alia, any process by which the two parties
to one or more swaps exchange the material terms of all swaps in the
swap portfolio between the counterparties, and (2) modifying Sec.
23.500(g) to define ``material terms'' to mean the minimum primary
economic terms of a swap, as defined in appendix 1 of part 45 of the
Commission's regulations, other than the first 24 terms listed above.
After analyzing and considering the materiality of such terms, the
Commission believes that the terms are not material for purposes of
portfolio reconciliation exercises. Specifically, the Commission has
determined that these 24 data fields: (i) Pertain to static items about
entering into the swap; (ii) pertain to static data fields about a
party's status; (iii) are only relevant to cleared transactions; (iv)
are data which is not agreed, exchanged, or confirmed between the
parties; or (v) are not relevant to the swap's daily valuation. The
Commission also believes that the removal of these terms from
reconciliations would alleviate the burden of resolving discrepancies
in terms of a swap that are not relevant to the ongoing rights and
obligations of the parties and the valuation of the swap without
impairing the Commission's regulatory mission. The Commission's view of
these ``Excluded Data Fields'' only applies to the ``portfolio
reconciliation'' process and has no bearing on other obligations that
counterparties must adhere to, such as, but not limited to,
recordkeeping and reporting obligations. Thus the final rule would make
the portfolio reconciliation process more efficient without harming the
Commission's ability to regulate the market. Accordingly, the
Commission has decided to adopt the 24 terms as the ``Excluded Data
Fields'' to be listed in Sec. 23.500(g)'s definition of material
terms.
The twenty-fifth data field listed above--``[a]ny other term(s) of
the swap matched or affirmed by the counterparties in verifying the
swap''--is a provision that could include terms, unlike the 24 excluded
terms above, that would be relevant to or affect the valuation of the
swap or the ongoing rights and obligations of the counterparties.\22\
Additionally, reconciling terms captured by this data field only covers
terms that are matched or affirmed by the counterparties in verifying
the swap, and terms that are matched or affirmed by the counterparties
must, in any event, be memorialized and recorded, thereby providing a
basis for counterparties to know which data fields must be included in
portfolio reconciliation exercises. Accordingly, the Commission is not
persuaded that the twenty-fifth data field is ambiguous and has
determined not to exclude it from the definition of material terms.
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\22\ For example, the Commission has stated that this field
could include terms such as an ``early termination option clause''
in an interest-rate swap. See Exhibit C in appendix 1 to part 45;
see also Exhibit C to appendix 1 to part 45 (listing the minimum
primary economic terms data for foreign exchange transactions other
than cross-currency swaps, and stating that the field for any other
term(s) of the swap matched or affirmed by the counterparties in
verifying the trade would include, for options, premium, premium
currency, premium payment date; for non-deliverable trades,
settlement currency, valuation (fixing) date; indication of the
economic obligations of the counterparties).
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The Commission will, however, provide an additional measure of
certainty to swap counterparties in the final rule by modifying the
definition of ``material terms'' in Sec. 23.500(g) to mean the minimum
primary economic terms as defined in appendix 1 of part 45 of
[[Page 27312]]
the Commission's regulations (as opposed to meaning the primary
economic terms more generally, without reference to the minimum terms
enumerated in appendix (1), minus the Excluded Data Fields. Under this
approach, market participants looking for the list of terms or data
fields that must be exchanged during portfolio reconciliation exercises
can look to the tables in appendix 1 to part 45 (minus the 24 Excluded
Data Fields), which primarily feature concrete terms.
With these modifications to the existing regulations, the final
rule will make it such that the terms that must be exchanged during
portfolio reconciliation exercises will be identical to the terms that
have to be resolved for discrepancies, both of which will be reduced
from what was required under the regulations as originally promulgated.
The Commission is finalizing the rule as such because the Commission
believes that modifying the rule in this manner will provide for a
streamlined and efficient portfolio reconciliation process that will
continue to provide counterparties (and the Commission) with sufficient
information about swap transactions. Accordingly, the Commission
believes that the Final Rule will result in fewer ``false positives''
and provide for an overall more effective portfolio reconciliation
process.
IV. Administrative Compliance
A. Regulatory Flexibility Act
The Regulatory Flexibility Act \23\ requires that agencies consider
whether the rules they propose will have a significant economic impact
on a substantial number of small entities and, if so, provide a
regulatory flexibility analysis reflecting the impact. For purposes of
resolving any discrepancy in material terms and valuations, the final
rule amends the definition in Sec. 23.500(g) of the Commission
regulations so that the term ``material terms'' is defined as the
minimum primary economic terms of a swap other than the 24 Excluded
Data Fields. In connection with portfolio reconciliation, Sec.
23.500(i)(1) requires counterparties to exchange the material terms of
all swaps, which is now consistent with Sec. 23.500(i)(3), which
requires counterparties to resolve any discrepancy in ``material
terms'' and valuations. As a result of the change to the definition of
``material terms'' in Sec. 23.500(g) of the Commission regulations,
SDs and MSPs will not be required to include the 24 Excluded Data
Fields in portfolio reconciliations. Accordingly, counterparties also
will not have to resolve discrepancies of material terms or valuations
in connection with the 24 Excluded Data Fields. The Commission has
previously determined that SDs and MSPs are not small entities for
purposes of the Regulatory Flexibility Act.\24\
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\23\ 5 U.S.C. 601 et seq.
\24\ Policy Statement and Establishment of Definitions of
``Small Entities'' for Purposes of the Regulatory Flexibility Act,
47 FR 18618, 18619 (Apr. 30, 1982). The Regulatory Flexibility Act
is limited to direct impact to small entities and not on indirect
impacts on these businesses, which may be tenuous and difficult to
discern. See Mid-Tex Elec. Coop., Inc. v. FERC, 773 F.2d 327, 340
(D.C. Cir. 1985); Am. Trucking Assns. v. EPA, 175 F.3d 1027, 1043
(D.C. Cir. 1985). Nonetheless, the Commission notes that any
financial end-users that may be indirectly impacted by the proposed
rule are likely to be eligible contract participants, and, as such,
they would not be small entities. See Opting Out of Segregation, 66
FR 20740, 20743 (Apr. 25, 2001).
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Thus, for the reasons stated above, the Commission believes that
the amendments to the definitions of ``material terms'' and ``portfolio
reconciliation'' will not have a significant economic impact on a
substantial number of small entities. Accordingly, the Chairman, on
behalf of the Commission, hereby certifies, pursuant to 5 U.S.C.
605(b), that the regulations in this Federal Register release will not
have a significant economic impact on a substantial number of small
entities.
B. Paperwork Reduction Act
The Paperwork Reduction Act of 1995 (``PRA'') \25\ imposes certain
requirements on Federal agencies, including the Commission, in
connection with their conducting or sponsoring any collection of
information, as defined by the PRA. An agency may not conduct or
sponsor, and a person is not required to respond to, a collection of
information unless it displays a currently valid control number.
---------------------------------------------------------------------------
\25\ 44 U.S.C. 3501 et seq.
---------------------------------------------------------------------------
In connection with the proposal, the Commission anticipated that,
if adopted the Final Rule would require an amendment to existing
collection of information OMB Control Number 3038-0068 with respect to
the collection of information entitled ``Confirmation, Portfolio
Reconciliation, and Portfolio Compression Requirements for Swap Dealers
and Major Swap Participants.'' \26\ The Commission therefore submitted
this proposal to the Office of Management and Budget (OMB) for review.
The Commission previously had discussed, for purposes of the PRA, the
burden \27\ that the regulation mandating, inter alia, portfolio
reconciliation would impose on market participants.\28\ In particular,
the Commission estimated the burden to be 1,282.5 hours for each SD and
MSP, and the aggregate burden for SDs and MSPs--based on a then-
projected 125 SDs and MSPs--was 160,312.5 burden hours.\29\
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\26\ See OMB Control No. 3038-0068, https://www.reginfo.gov/public/do/PRAOMBHistory?ombControlNumber=3038-0068.
\27\ ``For purposes of the PRA, the term `burden' means the
`time, effort, or financial resources expended by persons to
generate, maintain, or provide information to or for a Federal
Agency.' '' Portfolio Reconciliation Final Rule, 77 FR at 55959.
\28\ Portfolio Reconciliation Final Rule, 77 FR at 55958-60.
\29\ Portfolio Reconciliation Final Rule, 77 FR at 55959.
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The final rule amends the definition in Sec. 23.500(g) of the
Commission regulations so that the term ``material terms'' means the
minimum primary economic terms of a swap other than the 24 Excluded
Data Fields.\30\ As noted above, under the final rule, clause (1) of
the definition of ``portfolio reconciliation'' in Sec. 23.500(i)
requires the parties to exchange the material terms of all swaps
between them and clause (3) of Sec. 23.500(i) requires parties to
resolve any discrepancy in ``material terms'' and valuations. The
change will clarify that SDs and MSPs are not required to include the
24 Excluded Data Fields in portfolio reconciliations or in any
resolution of discrepancies of material terms or valuations.
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\30\ As noted earlier, the final rule is amending the definition
of the term, ``material terms,'' at Sec. 23.500(g) to exclude 24
data fields that will not be considered ``material terms'' for the
purposes of ``portfolio reconciliation'' as that term is defined in
Sec. 23.500(i)(3).
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As discussed above, the final rule reduces the number of ``material
terms'' that counterparties are required to exchange and resolve for
discrepancies during portfolio reconciliations, but will not eliminate
the overall portfolio reconciliation requirement itself. The Commission
stated that it believed that the Proposal would reduce the time burden
for portfolio reconciliation by one burden hour for each SD and MSP,
which would reduce the annual burden to 1,281.5 hours per SD and MSP.
The Commission stated that it believed that the Proposal would result
in one hour of less work for computer programmers for SDs and MSPs
because the programmers who have to match the needed data fields from
two different databases would have fewer data fields to obtain and
resolve for discrepancies. In the Proposal, the Commission estimated
that, given that there are 106 provisionally registered SDs and MSPs,
the proposed amendment would result in an aggregate burden of 135,839
[[Page 27313]]
burden hours if adopted. The final rule, however, will reduce the time
burden on SDs and MSPs even more than what was included in the
proposal, and there is one less provisionally registered MSP. In light
of the fact that the final rule will remove 24 data fields entirely
from portfolio reconciliations, and based on a total of 105 (as opposed
to 106) provisionally registered SDs and MSPs, the Commission believes
that the final rule will reduce the time burden for portfolio
reconciliation by approximately eight burden hours for each SD and MSP,
which would reduce the annual burden to 1,274.5 hours per SD and MSP,
with an aggregate burden of 133,822.5. In the Proposal, the Commission
invited the public and other Federal agencies to comment on any aspect
of the reporting burdens discussed above, but did not receive any such
comments.
C. Considerations of Costs and Benefits
Section 15(a) of the Act requires the Commission to consider the
costs and benefits of its actions before promulgating a regulation
under the Act or issuing an order. Section 15(a) further specifies that
the costs and benefits shall be evaluated in light of the following
five broad areas of market and public concern: (1) Protection of market
participants and the public; (2) efficiency, competitiveness, and
financial integrity of futures markets; (3) price discovery; (4) sound
risk management practices; and (5) other public interest
considerations. The Commission considers the costs and benefits
resulting from its discretionary determinations with respect to the
section 15(a) factors.
1. Background
The Commission believes that, while portfolio reconciliation
generally helps counterparties to manage risk, commentators were
persuasive in their arguments that portfolio reconciliation should only
involve exchanging and resolving discrepancies in material terms, and
that material terms should not include the 24 Excluded Data Fields
mentioned above. The Commission has been convinced that exchanging the
24 Excluded Data Fields does not improve the management of risks in
swaps portfolios. By eliminating the requirement to exchange data
fields that do not impact the valuation of the swap or the payment
obligations of the counterparties and thereby reducing the number of
data fields that parties must resolve for differences in portfolio
reconciliation exercises, the Commission believes the final rule will
decrease the costs that its current regulations impose on SDs and MSPs
(and their counterparties) without a concomitant reduction in the
benefits obtained from portfolio reconciliation exercises under the
existing regulatory framework, as described below.
For purposes of considering the costs and benefits of the final
rule, the Commission has used its current rules as the baseline.
Currently, counterparties to swap transactions must exchange certain
data elements for each swap, and then compare these and validate each
element, even where the element is not relevant to the valuation of the
swap or the payment obligations of the counterparties. The final rule
circumscribes this process to include only those data elements that are
relevant on an ongoing basis to the valuation of the swap or the
payment obligations of the counterparties. Accordingly, the Commission
does not believe the final rule will impose any new costs on SDs, MSPs,
or their counterparties.
2. Costs
Rather, as described below, the Commission believes that, in the
aggregate, the final rule will decrease the costs that its regulations
impose on SDs and MSPs (and their counterparties) because it would
eliminate the requirement to exchange and resolve discrepancies in swap
terms that remain constant (or that do not impact the valuation of
swaps or the payment obligations of the counterparties) and thereby
reduce the number of data fields requiring particular attention in
portfolio reconciliation exercises.
The Commission does not believe the final rule will impair the
Commission's ability to oversee and regulate the swaps markets.
Portfolio reconciliation is designed to enable counterparties to
understand the current status or value of swap terms. Because the
Commission's proposal only is removing terms from the general portfolio
reconciliation process that are not critical to the valuation of the
swap or to the ongoing obligations of the counterparties, it will not
negatively impact the amount of information available to the Commission
about swaps. The Commission believes that this final rule will reduce
SDs,' MSPs,' or their counterparties' costs of complying with
Commission regulations because it will reduce the number of terms that
counterparties must exchange during portfolio reconciliations.
3. Benefits
The Commission believes that the final rule will reduce the annual
burden hours for each SD and MSP by four hours, resulting in a total of
1,278.5 hours, which leads to an aggregate number, based on 105
registrants, of 134,242.5 burden hours. The Commission previously
estimated that, assuming 1,282.5 annual burden hours per SD and MSP,
the financial cost of its regulations on each SD and MSP would be
$128,250.\31\ Therefore, based on those prior estimates, an eight-hour
reduction in the annual burden hours for each SD and MSP would result
in a financial cost of $127,450 per registrant. Accordingly, the
Commission estimates that the aggregate financial burden of its
regulations on the 105 provisionally registered SDs and MSPs would be
$13,382,250.\32\
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\31\ Portfolio Reconciliation Final Rule, 77 FR at 55959.
\32\ Previously, the Commission had estimated that, if 125
entities had registered as SDs and MSPs, the aggregate burden would
be $16,031,250. Id.
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In addition, the Commission believes that the final rule benefits
SDs, MSPs, and their counterparties because it will enable them to
focus on reconciling data fields that actually impact the valuations of
swaps and the obligations of the counterparties. Potentially, this
change will enable the portfolio reconciliation process to be more
efficient without reducing its usefulness as a risk management tool.
4. Section 15(a)
Section 15(a) of the Act requires the Commission to consider the
effects of its actions in light of the following five factors:
a. Protection of Market Participants and the Public
For the reasons discussed above, the Commission believes that,
notwithstanding its decision to remove the 24 Excluded Data Fields from
the list of material terms that counterparties must exchange during
portfolio reconciliations, its regulations will continue to protect
market participants and the public.
b. Efficiency, Competitiveness, and Financial Integrity of Markets
For the reasons discussed above, the Commission believes that the
final rule will increase resource allocation efficiency of market
participants engaging in reconciliation exercises without increasing
the risk of harm to the financial integrity of markets.
c. Price Discovery
For the reasons discussed above, the Commission did not identify
any impact on price discovery as a result of the proposed regulation,
and did not believe there would be one, but sought
[[Page 27314]]
comment as to any potential impact. The Commission did not receive any
comments on this issue. Accordingly, the Commission continues to
believe the final rule will not impact price discovery.
d. Sound Risk Management
For the reasons discussed above, the Commission believes that the
final rule is consistent with sound risk management practices because
the regulatory change will not impair an entity's ability to conduct
portfolio reconciliations.
e. Other Public Interest Considerations
The Commission did not identify any other public interest
considerations, but welcomed comment on whether the proposal would
promote public confidence in the integrity of derivatives markets by
ensuring meaningful regulation and oversight of all SDs and MSPs. The
Commission did not receive any comments about this issue.
List of Subjects in 17 CFR Part 23
Authority delegations (Government agencies), Commodity futures,
Reporting and recordkeeping requirements.
For the reasons stated in the preamble, the Commodity Futures
Trading Commission amends 17 CFR part 23 as set forth below:
PART 23--SWAP DEALERS AND MAJOR SWAP PARTICIPANTS
0
1. The authority citation for part 23 continues to read as follows:
Authority: 7 U.S.C. 1a, 2, 6, 6a, 6b, 6b-1, 6c, 6p, 6r, 6s, 6t,
9, 9a, 12, 12a, 13b, 13c, 16a, 18, 19, 21.
0
2. In Sec. 23.500, revise paragraphs (g) and (i)(1) to read as
follows:
Sec. 23.500 Definitions.
* * * * *
(g) Material terms means the minimum primary economic terms (as
defined in Appendix 1 of part 45 of this chapter) of a swap other than
the following:
(1) An indication of whether the reporting counterparty is a swap
dealer with respect to the swap;
(2) An indication of whether the reporting party is a major swap
participant with respect to the swap;
(3) If the reporting counterparty is not a swap dealer or a major
swap participant with respect to the swap, an indication of whether the
reporting counterparty is a financial entity as defined in section
2(h)(7)(c) of the Act;
(4) An indication of whether the reporting counterparty is a U.S.
person;
(5) An indication that the swap will be allocated;
(6) If the swap will be allocated, or is a post-allocation swap,
the legal entity identifier of the agent;
(7) An indication of whether the swap is a post-allocation swap;
(8) If the swap is a post-allocation swap, the unique swap
identifier of the original transaction between the reporting
counterparty and the agent;
(9) An indication of whether the non-reporting counterparty is a
swap dealer with respect to the swap;
(10) An indication of whether the non-reporting counterparty is a
major swap participant with respect to the swap;
(11) If the non-reporting counterparty is not a swap dealer or a
major swap participant with respect to the swap, an indication of
whether the reporting counterparty is a financial entity as defined in
section 2(h)(7)(c) of the Act;
(12) An indication of whether the non-reporting counterparty is a
U.S. person;
(13) An indication that the swap is a multi-asset swap;
(14) For a multi-asset swap, an indication of the primary asset
class;
(15) For a multi-asset swap, an indication of the secondary asset
class(es);
(16) An indication that the swap is a mixed swap;
(17) For a mixed swap reported to two non-dually-registered swap
data repositories, the identity of the other swap data repository (if
any to which the swap is or will be reported;
(18) Block trade indicator;
(19) Execution timestamp;
(20) Timestamp for submission to swap data repository;
(21) Clearing indicator;
(22) Clearing venue;
(23) If the swap will not be cleared, an indication of whether the
clearing requirement exception in section 2(h)(7) of the Act was
elected; and
(24) The identity of the counterparty electing the clearing
requirement exception in section 2(h)(7) of the Act.
* * * * *
(i) * * *
(1) Exchange the material terms of all swaps in the swap portfolio
between the counterparties;
* * * * *
Issued in Washington, DC, on May 2, 2016, by the Commission.
Robert N. Sidman,
Deputy Secretary of the Commission.
Note: The following appendices will not appear in the Code of
Federal Regulations.
Amendments to the Definitions of ``Portfolio Reconciliation'' and
``Material Terms'' for Purposes of Swap Portfolio Reconciliation--
Commission Voting Summary and Commissioner's Statement
Appendix 1--Commission Voting Summary
On this matter, Chairman Massad and Commissioners Bowen and
Giancarlo voted in the affirmative. No Commissioner voted in the
negative.
Appendix 2--Statement of Commissioner J. Christopher Giancarlo
I support the final rule amending the definitions of portfolio
reconciliation and material terms for purposes of swap portfolio
reconciliation. I commend the Commission and Division of Swap Dealer
& Intermediary Oversight staff for replacing no-action relief with a
rulemaking subject to a cost-benefit analysis and the notice and
comment requirements of the Administrative Procedure Act.
In the proposal I raised two concerns. First, I questioned the
logic of the proposed rule to require the exchange of all terms
throughout the life of a swap as part of a portfolio reconciliation
exercise, but then require reconciliation of only the material
terms. I am pleased that the Commission has amended the definition
of portfolio reconciliation to require the exchange of material
terms so that the terms that must be exchanged are the same as those
that must be reconciled.
Second, I questioned the logic of the proposed rule to treat as
material terms, and thus require the reconciliation of, data fields
that will not change over time, such as execution timestamp and
timestamp for submission to a swap data repository. I am also
pleased that the Commission has revised the definition of material
terms to mean the minimum primary economic terms as defined in
appendix 1 of part 45 of the Commission's regulations and to exclude
several additional data fields that are not relevant to the ongoing
rights and obligations of the parties and the valuation of the swap.
The final rule streamlines the portfolio reconciliation process
and reduces costs for market participants without undermining the
Commission's objectives for portfolio reconciliation. The final rule
is much improved from the proposal so I am pleased to support it.
[FR Doc. 2016-10565 Filed 5-5-16; 8:45 am]
BILLING CODE 6351-01-P