Security-Based Swap Data Repositories; ICE Trade Vault, LLC; Notice of Filing of Application for Registration as a Security-Based Swap Data Repository, 14968-14974 [2021-05744]
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the NRC’s website under the ‘‘Public
Meetings & Involvement’’ web page at
https://www.nrc.gov/public-involve.html.
II. Background
A. SDR Registration, Duties, and Core
Principles
[FR Doc. 2021–05787 Filed 3–18–21; 8:45 am]
BILLING CODE 7590–01–P
SECURITIES AND EXCHANGE
COMMISSION
[Release No. 34–91331; File No. SBSDR–
2021–01]
Security-Based Swap Data
Repositories; ICE Trade Vault, LLC;
Notice of Filing of Application for
Registration as a Security-Based Swap
Data Repository
March 16, 2021.
I. Introduction
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On February 11, 2021, ICE Trade
Vault, LLC (‘‘ICE Trade Vault’’) filed
with the Securities and Exchange
Commission (‘‘Commission’’) an
application on Form SDR to register as
a security-based swap data repository
(‘‘SDR’’) pursuant to Section 13(n)(1) of
the Securities Exchange Act of 1934
(‘‘Exchange Act’’) and 17 CFR 240.13n1 (‘‘Rule 13n-1’’) thereunder,1 and as a
securities information processor (‘‘SIP’’)
under Section 11A(b) of the Exchange
Act.2 ICE Trade Vault amended its
application on March 10 and March 11,
2021. ICE Trade Vault intends to operate
as a registered SDR for security-based
swap (‘‘SBS’’) transactions in the credit
derivatives asset class. The Commission
is publishing this notice to solicit
comments from interested persons
regarding ICE Trade Vault’s
application,3 and the Commission will
consider any comments it receives in
making its determination whether to
approve ICE Trade Vault’s application
for registration as an SDR and as a SIP.
1 15 U.S.C. 78m(n)(1); 17 CFR 240.13n-1. A copy
of ICE Trade Vault’s application on Form SDR and
all non-confidential exhibits and amendments
thereto are available for public viewing on the
Commission’s website. In 2016, ICE Trade Vault
submitted a prior application for registration as an
SDR. See Release No. 77699 (Apr. 22, 2016), 81 FR
25475 (Apr. 28, 2016); Release No. 34–81223 (July
27, 2017), 82 FR 35844 (Aug. 1, 2017). ICE Trade
Vault withdrew this prior application in 2018. See
Letter from Kara Dutta, General Counsel, ICE Trade
Vault, Mar. 23, 2018, https://www.sec.gov/
divisions/marketreg/sdr/ice-trade-vault-sdrapplication-withdrawal-letter-032318.pdf.
2 15 U.S.C. 78k–1(b).
3 The descriptions set forth in this notice
regarding the structure and operations of ICE Trade
Vault have been derived, excerpted, or summarized
from ICE Trade Vault’s application on Form SDR.
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Section 13(n) of the Exchange Act
makes it unlawful for any person, unless
registered with the Commission,
directly or indirectly, to make use of the
mails or any means or instrumentality of
interstate commerce to perform the
functions of an SDR.4 To be registered
and maintain registration, an SDR must
comply with certain requirements and
core principles described in Section
13(n), as well as any requirements that
the Commission may impose by rule or
regulation.5 In 2015, the Commission
adopted 17 CFR 240.13n-1 to 13n-12
under the Exchange Act to establish
Form SDR, the procedures for
registration as an SDR, and the duties
and core principles applicable to an
SDR (‘‘SDR Rules’’).6 The Commission
provided a temporary exemption from
compliance with the SDR Rules and also
extended exemptions from the
provisions of the Dodd-Frank Act set
forth in a Commission order providing
temporary exemptions and other
temporary relief from compliance with
certain provisions of the Exchange Act
concerning security-based swaps, and
these temporary exemptions expired in
2017.7
The Commission also has adopted 17
CFR 242.900 to 909 under the Exchange
Act (collectively, ‘‘Regulation SBSR’’),
which governs regulatory reporting and
public dissemination of security-based
swap transactions.8 Among other things,
Regulation SBSR requires each
registered SDR to register with the
Commission as a SIP,9 and the Form
SDR constitutes an application for
registration as a SIP, as well as an
SDR.10
In 2019, the Commission stated that
implementation of the SBS Reporting
Rules can and should be done in a
manner that carries out the fundamental
policy goals of the SBS Reporting Rules
while minimizing burdens as much as
4 15
U.S.C. 78m(n).
5 Id.
6 See Release No. 34–74246 (Feb. 11, 2015), 80 FR
14438, 14438 (Mar. 19, 2015) (‘‘SDR Adopting
Release’’). In 2016, the Commission subsequently
amended 17 CFR 240.13n-4 to address third-party
regulatory access to SBS data obtained by an SDR.
See Release No. 34–78716 (Aug. 29, 2016), 81 FR
60585 (Sep. 2, 2016).
7 See Release No. 34–80359 (Mar. 31, 2017), 82 FR
16867 (Apr. 6, 2017).
8 Release No. 34–74244 (Feb. 11, 2015), 80 FR
14563 (Mar. 19, 2015); Release No. 34–78321 (July
14, 2016), 81 FR 53546 (Aug. 12, 2016). Regulation
SBSR and the SDR Rules are referred to collectively
as the ‘‘SBS Reporting Rules.’’
9 See 17 CFR 242.909.
10 See Form SDR, Instruction 2.
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practicable.11 Noting ongoing concerns
among market participants about
incurring unnecessary burdens and the
Commission’s efforts to promote
harmonization between the SBS
Reporting Rules and swap reporting
rules, the Commission took the position
that, for four years following Regulation
SBSR’s Compliance Date 1 in each asset
class,12 certain actions with respect to
the SBS Reporting Rules would not
provide a basis for a Commission
enforcement action.13 The no-action
statement’s relevance to ICE Trade
Vault’s application for registration as an
SDR and SIP is discussed further below.
B. Standard for Registration
As noted above, to be registered with
the Commission as an SDR and
maintain such registration, an SDR is
required to comply with the
requirements and core principles
described in Section 13(n) of the
Exchange Act, as well as with any
requirement that the Commission may
impose by rule or regulation.14 In
addition, Rule 13n–1(c)(3) under the
Exchange Act provides that the
Commission shall grant the registration
of an SDR if it finds that the SDR is so
organized, and has the capacity, to be
able to: (i) Assure the prompt, accurate,
and reliable performance of its functions
as an SDR; (ii) comply with any
applicable provisions of the securities
laws and the rules and regulations
thereunder; and (iii) carry out its
functions in a manner consistent with
the purposes of Section 13(n) of the
Exchange Act and the rules and
regulations thereunder.15 The
Commission shall deny the registration
of an SDR if it does not make any such
finding.16 Similarly, to be registered
with the Commission as a SIP, the
Commission must find that such
applicant is so organized, and has the
capacity, to be able to assure the
prompt, accurate, and reliable
performance of its functions as a SIP,
11 Release No. 34–87780 (Dec. 18, 2019), 85 FR
6270, 6347 (Feb. 4, 2020) (‘‘ANE Adopting
Release’’).
12 See id. Under Regulation SBSR, the first
compliance date (‘‘Compliance Date 1’’) for affected
persons with respect to an SBS asset class is the
first Monday that is the later of: (i) six months after
the date on which the first SDR that can accept
transaction reports in that asset class registers with
the Commission; or (ii) one month after the
compliance date for registration of SBS dealers and
major SBS participants (‘‘SBS entities’’). Id. at 6346.
The compliance date for registration of SBS entities
is October 6, 2021. See id. at 6270, 6345.
13 See id. The specific rule provisions of the SBS
Reporting Rules affected by the no-action statement
are discussed in Part II.B.
14 See 15 U.S.C. 78m(n)(3).
15 17 CFR 240.13n–1(c)(3).
16 Id.
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comply with the provisions of the
Exchange Act and the rules and
regulations thereunder, carry out its
functions in a manner consistent with
the purposes of the Exchange Act, and,
insofar as it is acting as an exclusive
processor, operate fairly and
efficiently.17
In determining whether an applicant
meets the criteria set forth in Rule 13n–
1(c), the Commission will consider the
information reflected by the applicant
on its Form SDR, as well as any
additional information obtained from
the applicant. For example, Form SDR
requires an applicant to provide a list of
the asset classes for which the applicant
is collecting and maintaining data or for
which it proposes to collect and
maintain data, a description of the
functions that it performs or proposes to
perform, general information regarding
its business organization, and contact
information.18 Obtaining this
information and other information
reflected on Form SDR and the exhibits
thereto—including the applicant’s
overall business structure, financial
condition, track record in providing
access to its services and data,
technological reliability, and policies
and procedures to comply with its
statutory and regulatory obligations—
will enable the Commission to
determine whether to grant or deny an
application for registration.19
Furthermore, the information requested
in Form SDR will enable the
Commission to assess whether the
applicant is so organized and has the
capacity to comply and carry out its
functions in a manner consistent with
the federal securities laws and the rules
and regulations thereunder, including
the SBS Reporting Rules.20
Consistent with the Commission’s noaction statement in the ANE Adopting
Release,21 an entity wishing to register
with the Commission as an SDR must
still submit an application on Form SDR
but can address the rule provisions
included in the no-action statement by
discussing how the SDR complies with
comparable Commodity Futures Trading
Commission (‘‘CFTC’’) requirements.22
Accordingly, in such instances the
Commission will not assess an SDR
application for consistency or
compliance with the rule provisions
included in the Commission’s no-action
statement. Specifically, the Commission
17 See
18 See
15 U.S.C. 78k-1(b)(3).
SDR Adopting Release, supra note 6, at
14459.
19 See id. at 14458.
20 See id. at 14458–59.
21 See supra notes 11–13 and accompanying text.
22 See supra note 13.
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identified the following provisions as
not providing a basis for an enforcement
action against a registered SDR for the
duration of the relief provided in the
Commission statement: Under
Regulation SBSR, aspects of 17 CFR
242.901(a), 901(c)(2) through (7), 901(d),
901(e), 902, 903(b), 906(a) and (b), and
907(a)(1), (a)(3), and (a)(4) through (6);
under the SDR Rules, aspects of Section
13(n)(5)(B) of the Exchange Act and 17
CFR 240.13n–4(b)(3) thereunder, and
aspects of 17 CFR 240.13n–5(b)(1)(iii);
and under Section 11A(b) of the
Exchange Act, any provision pertaining
to SIPs.23 Thus, an SDR applicant will
not need to include materials in its
application explaining how it would
comply with the provisions noted
above, and could instead rely on its
discussion about how it complies with
comparable CFTC requirements.24 The
applicant may instead represent in its
application that it: (i) Is registered with
the CFTC as a swap data repository; (ii)
is in compliance with applicable
requirements under the swap reporting
rules; (iii) satisfies the standard for
Commission registration of an SDR
under Rule 13n–1(c); and (iv) intends to
rely on the no-action statement included
in the ANE Adopting Release for the
period set forth in the ANE Adopting
Release with respect to any SBS asset
class or classes for which it intends to
accept transaction reports.25
III. Summary of ICE Trade Vault’s
Application on Form SDR
As noted above, ICE Trade Vault
intends to operate as a registered SDR
for the credit derivatives asset class.26
ICE Trade Vault states that its core
duties are: (i) Acceptance and
confirmation of data; (ii) recordkeeping;
(iii) public reporting; (iv) maintaining
data privacy and integrity; and (v)
permitting access to regulators.27 It
notes that its fundamental purpose is to
provide transparency to the SBS market
and publicly disseminate trade
information.28 In its application, ICE
Trade Vault represents that it is
provisionally registered with the CFTC
as a swap data repository, is in
compliance with applicable
23 The ANE Adopting Release provides additional
discussion of the particular aspects of the affected
rules that would not provide a basis for an
enforcement action. See ANE Adopting Release,
supra note 11, at 6347–48.
24 Id. at 6348.
25 Id. For example, an applicant need not describe
in Exhibit S its functions as a SIP.
26 See Security-Based SDR Service Disclosure
Document, Ex. V.2; see also Swap Data Repository
Rulebook, Security-Based Swap Data Reporting
Annex, Ex. HH.2, sec. 4.1.
27 See id.
28 See id.
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14969
requirements under the CFTC reporting
rules applicable to a registered swap
data repository, and intends to rely on
the Commission’s position outlined in
the ANE Adopting Release for
applicable reporting rules and SBSDR
duties for the period set forth therein.29
Below is an overview of the
representations made in the application
materials.
A. Organization and Governance
ICE Trade Vault is a Delaware limited
liability company, and is a wholly
owned subsidiary of Intercontinental
Exchange Holdings, Inc., which, in turn,
is a wholly owned subsidiary of
Intercontinental Exchange, Inc. (‘‘ICE’’),
a publicly traded company.30 As a
general matter, the number of directors
and composition of the Board of
Directors (‘‘ITV Board’’) shall be
determined by ICE, as the sole member
of ICE Trade Vault.31 Currently, the ITV
Board consists of at least three directors,
all of whom are appointed by ICE.32 The
ITV Board is composed of individuals
selected from the following groups:
members of senior management or the
Board of Directors of ICE, independents
and employees of ICE Trade Vault’s
users with derivatives industry
experience.33 ICE considers several
factors in determining the composition
of the ITV Board, including whether
directors, both individually and
collectively, possess the required
integrity, experience, judgment,
commitment, skills and expertise to
exercise their obligations of oversight
and guidance over an SDR and a swap
data repository regulated by the CFTC.34
Additionally, in accordance with
Exchange Act Rule 13n-4(c)(2), ICE
Trade Vault provides users with the
29 See Form SDR, Application Letter from Trabue
Bland, President, ICE Trade Vault, dated Mar. 10,
2021, at 1, 2.
30 See Security-Based SDR Service Disclosure
Document, Ex. V.2, sec. 9. ICE is a holding company
whose subsidiaries operate exchanges, clearing
houses, and data services for financial and
commodity markets. ICE operates global
marketplaces for trading and clearing a broad array
of securities and derivatives contracts across major
asset classes, including energy and agricultural
commodities, interest rates, equities, equity
derivatives, credit derivatives, bonds, and
currencies.
31 See Board of Directors Governance Principles,
Ex. D.3.
32 See Security-Based SDR Service Disclosure
Document, Ex. V.2, sec. 9; see also Swap Data
Repository Rulebook, Security-Based Swap Data
Reporting Annex, Ex. HH.2, sec. 2.1; Board of
Directors Governance Principles, Ex. D.3.
33 See Board of Directors Governance Principles,
Ex. D.3.
34 See Security-Based SDR Service Disclosure
Document, Ex. V.2, sec. 9; see also Swap Data
Repository Rulebook, Security-Based Swap Data
Reporting Annex, Ex. HH.2, sec. 2.1; Board of
Directors Governance Principles, Ex. D.3.
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opportunity to participate in the process
for nominating the ICE Trade Vault
independent director and with the right
to petition for alternative candidates.35
At least one director will at all times be
‘‘independent’’ in accordance with
applicable provisions of the New York
Stock Exchange Listed Company
Manual.36 Two officers of ICE Trade
Vault’s parent, ICE, currently serve as
the non-independent directors.37 ICE
shall periodically review the
composition of the ITV Board to assure
that the level of representation of
directors is appropriate for the interests
of these constituencies in ICE Trade
Vault.38
The ITV Board oversees all risks
relating to ICE Trade Vault.39 The
powers and authority of the ITV Board
include the ability to: (i) Designate and
authorize specific appointed officers to
act on behalf of the ITV Board; (ii) fix,
determine and levy all fees, when
necessary; (iii) prepare and amend the
Rulebook; (iv) act in emergencies; and
(v) delegate any such power to the
appropriate party.40 The ITV Board
oversees ICE Trade Vault’s SDR
functions as well as other regulated
services that ICE Trade Vault provides,
such as the swap data repository
registered with the CFTC.41
ICE Trade Vault’s Chief Compliance
Officer (‘‘CCO’’) is appointed by the ITV
Board and reports directly to the
President of ICE Trade Vault.42 The ITV
Board approves the compensation of the
CCO and meets with the CCO at least
annually.43 The CCO also works directly
with the ITV Board in certain instances,
for example, when resolving conflicts of
interest.44 The CCO has supervisory
authority over all staff acting at the
direction of the CCO and his or her
responsibilities include, but are not
limited to: (i) preparing and signing a
compliance report with a financial
report that conforms to the requirements
of Exchange Act Rule 13n–11(f), which
shall be provided to the SEC annually
in accordance with Exchange Act Rule
35 See
id.
id.
37 See id.
38 See Board of Directors Governance Principles,
Ex. D.3.
39 See Security-Based SDR Service Disclosure
Document, Ex. V.2, sec. 9; see also Swap Data
Repository Rulebook, Security-Based Swap Data
Reporting Annex, Ex. HH.2, sec. 2.1; Board of
Directors Governance Principles, Ex. D.3.
40 See id.
41 See id.
42 See Security-Based SDR Service Disclosure
Document, Ex. V.2, sec. 9; see also Swap Data
Repository Rulebook, Security-Based Swap Data
Reporting Annex, Ex. HH.2, sec. 2.1.1.
43 See id.
44 See id.
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36 See
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13n–11(d); (ii) reviewing the
compliance of ICE Trace Vault with
respect to the requirements and core
principles described in Section 13(n) of
the Exchange Act and the applicable
SEC regulations; and (iii) establishing
and administering written policies and
procedures reasonably designed to
prevent violations of the Exchange Act,
the core principles applicable to SDRs
and applicable law.45
ICE Trade Vault directors, officers and
employees must comply with the ICE
Global Code of Business Conduct,
which describes policies for, among
other things, handling conflicts of
interest, prohibiting insider trading,
complying with the law and document
management and retention
requirements.46 In addition, ICE Trade
Vault prohibits any member of the ITV
Board or of any board committee which
has authority to take action for and in
the name of ICE Trade Vault from
knowingly participating in such body’s
deliberations or voting in any matter
involving a named party in interest (a
person or entity that is identified by
name as a subject of any matter being
considered by the ITV Board or a board
committee) where such member (i) is a
named party in interest, (ii) is an
employer, employee, or guarantor of a
named party in interest or an affiliate
thereof, (iii) has a family relationship
(the person’s spouse, former spouse,
parent, stepparent, child, stepchild,
sibling, stepbrother, stepsister,
grandparent, grandchild, uncle, aunt,
nephew, niece or in-law) with a named
party in interest or (iv) has any other
significant, ongoing business
relationship with a named party in
interest or an affiliate thereof.47 The
CCO shall determine whether any
member of the deliberating body is
subject to a prohibition under its
conflicts of interest policies.48
B. Access and Information Security
ICE Trade Vault represents that it
provides access to its SDR service on a
fair, open and not unreasonably
discriminatory basis.49 According to ICE
Trade Vault, access to and usage of its
service is available to all market
participants that validly engage in SBS
45 See
46 See
id.
ICE Global Code of Business Conduct, Ex.
D.4.
47 See Swap Data Repository Rulebook, SecurityBased Swap Data Reporting Annex, Ex. HH.1, sec.
2.10.2.
48 See Swap Data Repository Rulebook, SecurityBased Swap Data Reporting Annex, Ex. HH.2, sec.
2.10.4.
49 See Security-Based SDR Service Disclosure
Document, Ex. V.2, sec. 1; see also Swap Data
Repository Rulebook, Security-Based Swap Data
Reporting Annex, Ex. HH.2, sec. 3.1.
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transactions and to all market venues
from which data can be submitted to
ICE Trade Vault, and do not require the
use of any other ancillary service offered
by ICE Trade Vault.50 ICE Trade Vault
represents that for security reasons,
access to the ICE Trade Vault system is
strictly limited to users (entities with
valid permissions and security
access).51 Users will only have access to
(i) data they reported, (ii) data that
pertains to a SBS to which they are a
counterparty; (iii) data that pertains to a
SBS for which the user is an execution
agent, platform, registered broker-dealer
or a third-party reporter; and (iv) data
that ICE Trade Vault is required to make
publicly available.52
According to ICE Trade Vault, access
to its system is provided to parties that
have a duly executed User Agreement in
effect with ICE Trade Vault.53 When
enrolling with ICE Trade Vault, users
must designate an administrator with
respect to the user’s use of ICE Trade
Vault to ensure ICE Trade Vault access
is granted by a trusted individual at the
user’s firm who is closest to and has the
most knowledge of those in the firm
who require access; the administrator
will create, permission and maintain all
user names and passwords for the
user.54 According to ICE Trade Vault,
passwords must meet technical and
procedural processes for information
security and must include at least three
of the following elements: uppercase
letters, lowercase letters, numbers, and
special characters.55
ICE Trade Vault may decline the
request of an applicant to become a user
50 See id.; see also SDR Adopting Release, 80 FR
at 14451–52 (Commission noting that confirmation
and dispute resolution services or functions ‘‘are
ancillary. . . . [and are] not ‘core’ SDR services,
which would cause a person providing such core
services to meet the definition of an SDR, and thus,
require the person to register with the Commission
as an SDR. However, SDRs are required to perform
these two services or functions, and thus, they are
required ancillary services[.] . . . An SDR may
delegate some of these required ancillary services
to third party service providers, who do not need
to register as SDRs to provide such services. The
SDR will remain legally responsible for the third
party service providers’ activities relating to the
required ancillary services and their compliance
with applicable rules under the Exchange Act.’’).
51 See Security-Based SDR Service Disclosure
Document, Ex. V.2, sec. 1; see also ICE Trade Vault
User Agreement, Ex. U.2.
52 See id.; see also Security-Based Swap Data
Repository User Onboarding Process Guide, Ex. N.6.
53 See Security-Based SDR Service Disclosure
Document, Ex. V.2, sec. 1; Swap Data Repository
Rulebook, Security-Based Swap Data Reporting
Annex, Ex. HH.2, sec. 3.1.1; see also ICE Trade
Vault User Agreement, Ex. U.2.
54 See Security-Based SDR Service Disclosure
Document, Ex. V.2, sec. 1; Swap Data Repository
Rulebook, Security-Based Swap Data Reporting
Annex, Ex. HH.2, sec. 3.1.1.
55 See Security-Based SDR Service Disclosure
Document, Ex. V.2, sec. 1.
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of its system if such denial is required
in order to comply with applicable law
(e.g., to comply with sanctions
administered and enforced by the Office
of Foreign Assets Control of the U.S.
Department of the Treasury).56 If an
applicant is denied by ICE Trade Vault
for any other reason, the applicant will
be entitled to notice and an opportunity
to contest such determination in
accordance with the Rulebook.57 If the
denial of an application is reversed, the
applicant will be granted access to ICE
Trade Vault promptly following
completion of onboarding
requirements.58 In addition, ICE Trade
Vault may revoke a user’s access to ICE
Trade Vault following a determination
that (i) the user has violated any
provision of the User Agreement
(including by failing to pay any fees
when due), the Rulebook, applicable
law or any ICE Trade Vault policies and
procedures related to its SDR service or
(ii) such action is necessary or
appropriate in light of ICE Trade Vault’s
regulatory responsibilities or for the
protection of the integrity of its system
(each, an ‘‘Access Determination’’).59
Access Determinations shall be made by
the CCO based on the information
gathered during the inquiry, if any, and
reviewed by the President and General
Counsel of ICE Trade Vault within 5
business days of such determination
prior to implementing any revocation of
access.60 Notwithstanding the foregoing,
the CCO’s Access Determination may be
implemented immediately without prior
review by the President or General
Counsel (‘‘Immediate Revocation’’)
where the CCO determines such
revocation is necessary for the
protection of the integrity of the ICE
Trade Vault system or to fulfill ICE
Trade Vault’s regulatory
responsibilities.61 If (i) an Immediate
Revocation occurs or (ii) the President
and General Counsel conclude that an
Access Determination is appropriate
and in compliance with applicable law,
the CCO shall, within 1 business day,
provide notice by email to the user to
which the Access Determination
applies, including in such notice the
specific reasons for the determination.62
If the President and General Counsel
conclude that limitation or revocation of
access pursuant to an Access
Determination made by the CCO would
constitute unreasonable discrimination,
the President and General Counsel shall
take such actions as are necessary to
maintain or restore access to ICE Trade
Vault, its services or SDR information,
as applicable.63
ICE Trade Vault states that it
recognizes its responsibility to ensure
data confidentiality and dedicates
significant resources to information
security to prevent the misappropriation
or misuse of confidential information
and any other SDR information not
subject to public dissemination (i.e., the
information identified in Exchange Act
Rule 902(c)) and that it does not, as a
condition of accepting SBS data from
users, require the waiver of any privacy
rights by such users.64 ICE Trade Vault
states that it maintains a security policy
that sets forth technical and procedural
processes for information security and
contains an extensive list of policies and
means of implementation and that it
uses a multi-tiered firewall deployment
to provide network segmentation and
access control to its services.65 ICE
Trade Vault states that its application
servers are housed in a demilitarized
network zone behind external firewalls
and that a second set of internal
firewalls further isolate ICE Trade Vault
database systems, while an intrusion
system provides added security to
detect any threats and network sensors
analyze all internet and private line
traffic for malicious patterns.66
ICE Trade Vault states that tactical
controls are regularly examined and
tested by multiple tiers of internal and
external test groups, auditors and
independently contracted third-party
security testing firms.67 According to
ICE Trade Vault, in addition, the
security policy imposes an accountable
and standard set of best practices to
protect the confidentiality of users’ SDR
information, including confidential
information and other SDR information
not subject to public dissemination.68
ICE Trade Vault states that it completes
an audit for adherence to the data
security policies on at least an annual
basis; the audit tests the following
56 See Security-Based SDR Service Disclosure
Document, Ex. V.2, sec. 1; Swap Data Repository
Rulebook, Security-Based Swap Data Reporting
Annex, Ex. HH.2, sec. 3.1.2.
57 See id.
58 See id.
59 See Swap Data Repository Rulebook, SecurityBased Swap Data Reporting Annex, Ex. HH.2, sec.
3.3.
60 See id.
61 See id.
62 See id.
63 See id.; see also Swap Data Repository
Rulebook, Security-Based Swap Data Reporting
Annex, Ex. HH.2, sec. 3.4 (review and dispute of
revocation of access), 3.5 (final access
determinations), 3.6 (implementation of a
revocation of access).
64 See Security-Based SDR Service Disclosure
Document, Ex. V.2, sec.4.
65 See id.
66 See id.
67 See id.
68 See id.
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14971
applicable controls, among others, to
ICE Trade Vault systems: (i) Logical
access controls; (ii) logical access to
databases; (iii) physical and
environmental controls; (iv) backup
procedures; and (v) change
management.69 ICE Trade Vault states
that it has a robust information security
program and maintains effective and
current policies and procedures to
ensure employee compliance; ICE Trade
Vault’s information security program
includes: asset management; physical
and environmental security;
authorization, authentication and access
control management; internet, email and
data policy management, record
retention management; and
accountability, compliance and
auditability.70 ICE Trade Vault states
that it performs network scans and
penetration tests regularly to ensure the
information security systems are
performing as designed.71
ICE Trade Vault maintains and will
continue to maintain a robust
emergency and business-continuity and
disaster recovery plan (‘‘Business
Continuity Plan’’) that allows for timely
resumption of key business processes
and operations following unplanned
interruptions, unavailability of staff,
inaccessibility of facilities, and
disruption or disastrous loss to one or
more of ICE Trade Vault’s facilities or
services.72 In accordance with the
Business Continuity Plan, all
production system hardware and
software is replicated in near real-time
at a geographical- and vendor-diverse
disaster recovery site to avoid any loss
of data.73 ICE Trade Vault shall notify
the SEC as soon as it is reasonably
practicable of ICE Trade Vault’s
invocation of its emergency authority,
any material business disruption, or any
threat that actually or potentially
jeopardizes automated system capacity,
integrity, resiliency, availability or
security.74
C. Acceptance and Use of SBS Data
ICE Trade Vault states that it will
accept data in respect of all SBS trades
69 See
id.
id.
71 See id.
72 See id.
73 See id.
74 See id.; see also Swap Data Repository
Rulebook, Security-Based Swap Data Reporting
Annex, Ex. HH.2, sec. 2.8.3 (‘‘ICE Trade Vault will
notify the SEC as soon as practicable of any action
taken, or proposed to be taken (time permitting),
pursuant to this Rule 2.8.3. The decision-making
process with respect to, and the reasons for, any
such action will be recorded in writing. ICE Trade
Vault will also notify Users via email as soon as
practicable of any action taken (time permitting), or
proposed to be taken, pursuant to this Rule 2.8.3.’’).
70 See
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in the credit derivatives asset class and
promptly records such data upon
receipt.75 ICE Trade Vault requires all
users to report complete and accurate
trade information and to review and
resolve all error messages generated by
the ICE Trade Vault system with respect
to the data they have submitted.76
According to ICE Trade Vault, access to
SDR information by ICE Trade Vault
employees and others performing
functions on behalf of ICE Trade Vault
is strictly limited to those with the
direct responsibility for supporting the
ICE Trade Vault system, users and
regulators.77 ICE Trade Vault employees
and others performing functions on
behalf of ICE Trade Vault are prohibited
from using SDR information other than
in the performance of their job
responsibilities.78 In accordance with
applicable SEC regulations, ICE Trade
Vault may disclose, for commercial
purposes, certain SDR information; any
such disclosures shall be made solely on
an aggregated basis in a manner that
ensures that the disclosed SDR
information cannot reasonably be
attributed to individual transactions or
users.79
ICE Trade Vault states that, in
accordance with Exchange Act Rule
13n-5(b)(5), it maintains internal
policies and procedures in place to
ensure its recording process and
operation does not invalidate or modify
the terms of trade information, and that
it regularly audits these controls to
ensure the prevention of unauthorized
and unsolicited changes to SDR
information maintained in the ICE
Trade Vault system through protections
related to the processing of SBS.80
Additionally, ICE Trade Vault states
that it reasonably relies on the accuracy
of trade data submitted by users and
that all users must complete a
conformance test to validate data
submission integrity prior to ICE Trade
Vault’s acceptance of actual SBS data
and must immediately inform ICE Trade
Vault of any system or technical issues
that may affect the accuracy of SBS data
75 See Swap Data Repository Rulebook, SecurityBased Swap Data Reporting Annex, Ex. HH.2, sec.
4.1.
76 See Swap Data Repository Rulebook, SecurityBased Swap Data Reporting Annex, Ex. HH.2, sec.
4.2.1.
77 See Swap Data Repository Rulebook, SecurityBased Swap Data Reporting Annex, Ex. HH.2, sec.
3.8; Security-Based SDR Service Disclosure
Document, Ex. V.2, sec. 5.
78 See id.
79 See id.
80 See Swap Data Repository Rulebook, SecurityBased Swap Data Reporting Annex, Ex. HH.2, sec.
4.5.
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transmissions.81 ICE Trade Vault states
that users are responsible for the timely
resolution of trade record errors and
disputes.82 ICE Trade Vault provides
users electronic methods to extract SDR
information for trade data
reconciliation.83 Disputes involving
clearing transactions shall be resolved
in accordance with the clearing agency’s
rules and applicable law.84 For an alpha
SBS executed on a platform and
reported by a platform user, disputes
must be resolved in accordance with the
platform’s rules and applicable law.85
For SBS that are reported by a user that
is neither a platform nor a clearing
agency, counterparties shall resolve
disputes with respect to SDR
information in accordance with the
counterparties’ master trading
agreement and applicable law.86 Users
that are non-reporting sides may verify
or dispute the accuracy of trade
information that has been submitted by
a reporting side to ICE Trade Vault,
where the non-reporting side is
identified as the counterparty, by
sending a verification message
indicating that it verifies or disputes
such trade information.87 If the
reporting side for a SBS transaction
discovers an error in the information
reported with respect to a SBS, or
receives notification from a
counterparty of an error, the reporting
side shall promptly submit to ICE Trade
Vault an amended report that corrects
such error.88 ICE Trade Vault will
disseminate a corrected transaction
report in instances where the initial
report included erroneous primary trade
information.89 Users are required to
notify ICE Trade Vault promptly of
disputed trade data by utilizing the
‘‘Dispute’’ functionality; when a User
81 See Security-Based SDR Service Disclosure
Document, Ex. V.2, sec. 6.
82 See id.; see also Swap Data Repository
Rulebook, Security-Based Swap Data Reporting
Annex, Ex. HH.2, sec. 4.6 and 4.7.
83 See Security-Based SDR Service Disclosure
Document, Ex. V.2, sec. 6; Swap Data Repository
Rulebook, Security-Based Swap Data Reporting
Annex, Ex. HH.2, sec. 4.6.
84 See Security-Based SDR Service Disclosure
Document, Ex. V.2, sec. 6; Swap Data Repository
Rulebook, Security-Based Swap Data Reporting
Annex, Ex. HH.2, sec. 4.2.4 and 4.7.
85 See id.
86 See Security-Based SDR Service Disclosure
Document, Ex. V.2, sec. 6; Swap Data Repository
Rulebook, Security-Based Swap Data Reporting
Annex, Ex. HH.2, sec. 4.7.
87 See Security-Based SDR Service Disclosure
Document, Ex. V.2, sec. 6; see also Swap Data
Repository Rulebook, Security-Based Swap Data
Reporting Annex, Ex. HH.2, sec. 4.2.3.
88 See Security-Based SDR Service Disclosure
Document, Ex. V.2, sec. 6; see also Swap Data
Repository Rulebook, Security-Based Swap Data
Reporting Annex, Ex. HH.2, sec. 4.2.2.
89 See id.
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‘‘disputes’’ a trade, the status of the
trade will be recorded as ‘‘Disputed,’’
and notice of the dispute will be sent
promptly to the other party to the trade;
the trade record may then be amended
or canceled upon mutual agreement of
the parties; the status of the trade will
remain ‘‘Disputed’’ until either party to
the trade provides evidence satisfactory
to ICE Trade Vault that the dispute has
been resolved.90 ICE Trade Vault will
provide regulators with reports
identifying the SDR information that is
deemed disputed.91
D. Fees
According to ICE Trade Vault, all fees
imposed by ICE Trade Vault in
connection with the reporting of swap
data shall be equitable and established
in a uniform and non-discriminatory
manner as determined from time-to-time
by ICE Trade Vault.92 In addition, ICE
Trade Vault represents that all fees will
be commensurate to ICE Trade Vault’s
costs for providing its SDR service. ICE
Trade Vault states it will only assess
fees as noted in its fee schedule, and
there will be no ‘‘hidden fees’’
associated with ICE Trade Vault
Service.93
The most current pricing schedule is
made available via the ICE Trade Vault
website. ICE Trade Vault applies fees
according to the type of SDR user
accessing ICE Trade Vault: counterparty,
clearing agency, execution agent and
third party reporter.94 According to ICE
Trade Vault, in the case of the execution
agent versus the third party reporter, the
application of fees is differentiated
based upon the type of service provided
in each case.95 According to ICE Trade
Vault, an execution agent is directly
involved with trade execution; as such,
it is charged directly for the fees
associated with the SDR just as a
counterparty, whereas the underlying
90 See id.; see also Swap Data Repository
Rulebook, Security-Based Swap Data Reporting
Annex, Ex. HH.2, sec. 4.7.
91 See Swap Data Repository Rulebook, SecurityBased Swap Data Reporting Annex, Ex. HH.2, sec.
4.7; see also Security-Based SDR Service Disclosure
Document, Ex. V.2, sec. 6.
92 See Security-Based SDR Service Disclosure
Document, Ex. V.2, sec.8; see also Swap Data
Repository Rulebook, Security-Based Swap Data
Reporting Annex, Ex. HH.2, sec. 2.7 (‘‘In accordance
with Exchange Act Rule 13n-4(c), any dues, fees or
other charges imposed by, and any discounts or
rebates offered by, ICE Trade Vault in connection
with the ICE SBSDR Service shall be fair and
reasonable and not unreasonably discriminatory.
ICE Trade Vault dues, fees, other charges,
discounts, or rebates shall be applied consistently
across all similarly situated Users.’’)
93 See ICE Trade Vault Security-Based Swap Data
Repository Service and Pricing Schedule, Ex. M.2.
94 See Dues, Fees and Charges, Ex. M.1.
95 See id.
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funds are not charged a fee.96 However,
the third party reporter is not involved
with the trade execution and simply
provides a service to counterparties who
have an obligation to report; therefore,
according to ICE Trade Vault, they are
assessed a fee for each of those reporting
parties on behalf of whom they are
reporting the trades.97 According to ICE
Trade Vault, as a result, the third party
reporter is able to pass the cost of its
service to each of its counterparties
utilizing third party reporting; this
allows for the cost of ICE Trade Vault to
be fair and equal for reporting parties
whether they choose to report directly
to ICE Trade Vault or via a third party
reporter.98 Additionally, according to
ICE Trade Vault, clearing agency fees
vary from other users due to the unique
requirements necessary to support this
type of customer; ICE Trade Vault must
build out a separate custom interface(s)
and purchase and maintain additional
hardware necessary to support the high
volume of trades submitted to the SDR
by the clearing agency; as a result, the
minimum fee outlined in the ICE Trade
Vault pricing schedule reflects the costs
incurred by ICE Trade Vault to purchase
the necessary hardware and software
and the cost to build out the SDR
system; in addition, the clearing agency
fees also reflect the additional ongoing
support and maintenance costs for this
type of high volume user.99 According
to ICE Trade Vault, all fees within the
schedule, including the monthly per
$1MM notional, are cost based to ensure
ICE Trade Vault may operate with a
minimum margin while allowing for a
reasonable cost to its customers, given
the expected volume of trades it expects
to receive as an SDR.100
ICE Trade Vault will assess a
Repository Fee upon its acceptance of
any trade message for an SBS
transaction.101 For both cleared and
uncleared/bilateral transactions, the
Repository Fee rates will be $1.35 per
$1/MM Notional. For cleared SBS, the
Repository Fee will be charged to the
clearing agency that cleared the SBS
and, for uncleared or bilateral SBS
transactions, the fee will be charged to
the user which submitted the record as
a counterparty or execution agent.
For transactions submitted directly by
a clearing agency user, clearing agency
users will have a minimum monthly
invoice per user of $10,000, and the
96 See
id.
id.
98 See id.
99 See id.
100 See id.
101 See ICE Trade Vault Security-Based Swap Data
Repository Service and Pricing Schedule, Ex. M.2.
97 See
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invoice will be the greater of (i) the total
of all Repository Fees incurred by user
or (ii) $10,000.102 If a clearing agency
user does not have any submittals in a
given month but does have open
positions, the $10,000 will be charged as
a minimum maintenance fee in the
place of any Repository Fees. If a
clearing agency user does not have any
submittals in a given month and does
not have any open positions then no
fees will be charged.
For transactions submitted directly by
a counterparty user, the minimum
monthly invoice per user will be
$375.103 In a given month, each user
represented as a counterparty shall be
invoiced the greater of (i) the total of all
Repository Fees incurred by user or (ii)
$375. If the user does not have any
submittals in a given month but does
have open positions on SBS in the ICE
Trade Vault Service, the $375 will be
charged as a minimum maintenance fee
in the place of any Repository Fees. If
the user does not have any submittals in
a given month and does not have any
open positions then no fees will be
charged.
When an execution agent submits an
SBS transaction on behalf of the
counterparty and is listed as the
execution agent, the execution agent
will be charged the Repository Fee (not
the underlying funds, accounts or other
principals).104 When an execution agent
submits an SBS transaction where the
execution agent is acting as the
counterparty, it will be charged the
Repository Fee. The minimum monthly
invoice for an execution agent will be a
total of $375, including all transactions
in which the executing agent is acting
on behalf of a counterparty or acting as
its own counterparty.
For transactions submitted by third
party reporters, third party reporters
will only be charged a Repository Fee
for those transactions they report on
behalf of non-users of ICE Trade
Vault.105 Each non-user on whose behalf
the third party reporter submits the
transaction will have an invoice created
as if it were a user, and will be invoiced
the greater of (i) the total of all
Repository Fees incurred by non-user or
(ii) $200. If the non-user does not have
any submittals by the third party
reporter in a given month but does have
open positions, $200 will be charged as
a minimum maintenance fee in the
place of any Repository Fees. If the nonuser does not have any submittals by the
third party reporter in a given month
102 See
id.
id.
104 See id.
105 See id.
103 See
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14973
and does not have any open positions
then no fees will be charged. The details
regarding the Repository Fees incurred
or the minimum monthly amount for
each non-user will be detailed on the
third-party reporter’s invoice and
summed across all non-users to
determine the total amount charged to
any one third party reporter. ICE Trade
Vault will solely provide invoices to the
third party reporter for trades reported
on behalf of the non-user and will not
issue an invoice directly to any nonusers.
E. Recordkeeping
According to ICE Trade Vault, users
access ICE Trade Vault through a webbased front-end that requires user
systems to (a) satisfy the minimum
computing system and web browser
requirements specified in the ICE Trade
Vault Technical Guides; (b) support
HTTP 1.1 and 128-bit or stronger SSL
data encryption; and (c) the most recent
version of Chrome.106 Trade information
submitted to ICE Trade Vault is saved in
a non-rewriteable, non-erasable format,
to a redundant, local database and a
remote disaster recovery database in
near real-time; the database of trade
information submitted to ICE Trade
Vault is backed-up to tape daily with
tapes moved offsite weekly.107
Counterparties’ individual trade data
records remain available to users at no
charge for online access through ICE
Trade Vault from the date of submission
until five years after expiration of the
trade (last day of delivery or settlement
as defined for each product).108 After
the initial five-year period,
counterparties’ trade data will be stored
off-line and remain available upon a
three-day advance request to ICE Trade
Vault, until ten years from the
termination date.109 According to ICE
Trade Vault, users will retain
unimpaired access to their online and
archived trade data.110 However, if a
user or its regulator requests or requires
archived trade information from ICE
Trade Vault to be delivered other than
via the web-based front-end or the
application programming interface
(‘‘API’’) or in a non-standard format,
such user may be required, in
106 See Security-Based SDR Service Disclosure
Document, Ex. V.2, sec. 2; see also Swap Data
Repository Rulebook, Security-Based Swap Data
Reporting Annex, Ex. HH.2, sec. 3.7.
107 See Swap Data Repository Rulebook, SecurityBased Swap Data Reporting Annex, Ex. HH.2, sec.
7.1; see also Security-Based SDR Service Disclosure
Document, Ex. V.2, sec. 3.
108 See Security-Based SDR Service Disclosure
Document, Ex. V.2, sec. 3.
109 See Security-Based SDR Service Disclosure
Document, Ex. V.2, sec. 3.
110 See id.
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accordance with the ICE Trade Vault
schedule of fees and charges, to
reimburse ICE Trade Vault for its
reasonable expenses in producing data
in response to such request or
requirement as such expenses are
incurred.111 Similarly, ICE Trade Vault
may require a user to pay all reasonable
expenses associated with producing
records relating to its transactions
pursuant to a court order or other legal
process, as those expenses are incurred
by ICE Trade Vault, whether such
production is required at the instance of
such user or at the instance of another
party with authority to compel ICE
Trade Vault to produce such records.112
F. Disclosure
ICE Trade Vault publishes a
disclosure document to provide a
summary of information regarding its
service offerings and the SBS data it
maintains.113 Specifically, the
disclosure document sets forth a
description of the following: (i) criteria
for access to the ICE Trade Vault service
and SBS data; (ii) criteria for connection
and linking to ICE Trade Vault; (iii)
policies and procedures to safeguard
SBS data and operational reliability; (iv)
policies and procedures to protect the
privacy of SBS data; (v) policies and
procedures on ICE Trade Vault
commercial and non-commercial use of
SBS data; (vi) ICE Trade Vault data
accuracy and dispute resolution
procedures; (vii) ICE Trade Vault
services; (viii) ICE Trade Vault pricing;
and (ix) ICE Trade Vault governance
arrangements.114
G. Regulatory Reporting and Public
Dissemination
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As a registered SDR, ICE Trade Vault
would carry out an important role in the
regulatory reporting and public
dissemination of SBS transactions. As
noted above, ICE Trade Vault has stated
that it intends to rely on the no-action
statement included in the ANE
Adopting Release for the period set forth
in the ANE Adopting Release with
respect to the credit derivatives asset
class.115 Therefore, ICE Trade Vault
does not need to include materials in its
application explaining how it would
comply with the provisions of the SBS
Reporting Rules noted in the no-action
111 See id.; see also Swap Data Repository
Rulebook, Security-Based Swap Data Reporting
Annex, Ex. HH.2, sec. 7.1.
112 See id.
113 See Security-Based SDR Service Disclosure
Document, Ex. V.2.
114 See id.
115 See supra note 29 and accompanying text.
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statement.116 Instead, ICE Trade Vault
may rely on its discussion about how it
complies with comparable CFTC
requirements pertaining to regulatory
reporting and public dissemination of
swap transactions.
IV. Solicitation of Comments
Interested persons are invited to
submit written data, views, and
arguments concerning ICE Trade Vault’s
Form SDR, including whether ICE Trade
Vault has satisfied the requirements for
registration as an SDR and as a SIP.
Commenters are requested, to the extent
possible, to provide empirical data and
other factual support for their views.
Comments may be submitted by any of
the following methods:
Electronic comments
• Use the Commission’s internet
comment form (https://www.sec.gov/
rules/proposed.shtml); or
• Send an email to rule-comments@
sec.gov. Please include File Number
SBSDR–2021–01 on the subject line.
Paper comments
• Send paper comments to Secretary,
Securities and Exchange Commission,
100 F Street NE, Washington, DC
20549–1090. All submissions should
refer to File Number SBSDR–2021–01.
To help the Commission process and
review your comments more efficiently,
please use only one method of
submission. The Commission will post
all comments on the Commission’s
internet website (https://www.sec.gov/
rules/other.shtml).
Copies of the Form SDR, all
subsequent amendments, all written
statements with respect to the Form
SDR that are filed with the Commission,
and all written communications relating
to the Form SDR between the
Commission and any person, other than
those that may be withheld from the
public in accordance with the
provisions of 5 U.S.C. 552, will be
available for website viewing and
printing in the Commission’s Public
Reference Section, 100 F Street, NE,
Washington, DC 20549, on official
business days between the hours of
10:00 a.m. and 3:00 p.m.
116 However, the ICE Trade Vault application
includes provisions explaining how it would
require users to identify SBS, as required by Rule
901(c)(1) of Regulation SBSR. See Security-Based
SDR Service Disclosure Document, Ex. N.5 (fields
146–148). The ICE Trade Vault application also
includes a provision explaining how it would
comply with a condition to the no-action statement
included in the ANE Adopting Release. See
Security-Based SDR Service Disclosure Document,
Ex. N.4, sec. 3.5 (providing, in the case of a credit
security-based swap, for dissemination of a capped
notional size of $5 million if the true notional size
of the transaction is $5 million or greater).
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All comments received will be posted
without change. Persons submitting
comments are cautioned that we do not
redact or edit personal identifying
information from comment submissions.
You should submit only information
that you wish to make available
publicly. All submissions should refer
to File Number SBSDR–2021–01 and
should be submitted on or before April
9, 2021.
By the Commission.
J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2021–05744 Filed 3–18–21; 8:45 am]
BILLING CODE 8011–01–P
SECURITIES AND EXCHANGE
COMMISSION
[Release No. 34–91323; File No. SR–
PEARL–2021–07]
Self-Regulatory Organizations; MIAX
PEARL, LLC; Notice of Filing and
Immediate Effectiveness of a Proposed
Rule Change to Adopt a Minimum
Execution Quantity Instruction for
Orders
March 15, 2021.
Pursuant to Section 19(b)(1) of the
Securities Exchange Act of 1934
(‘‘Act’’),1 and Rule 19b-4 thereunder,2
notice is hereby given that on March 1,
2021, MIAX PEARL, LLC (‘‘MIAX
PEARL’’ or ‘‘Exchange’’) filed with the
Securities and Exchange Commission
(‘‘Commission’’) the proposed rule
change as described in Items I, II, and
III below, which Items have been
prepared by the Exchange. The
Commission is publishing this notice to
solicit comments on the proposed rule
change from interested persons.
I. Self-Regulatory Organization’s
Statement of the Terms of Substance of
the Proposed Rule Change
The Exchange is filing a proposed rule
change to amend Exchange Rule 2614,
Orders and Order Instructions, to adopt
the Minimum Execution Quantity
instruction.
The text of the proposed rule change
is available on the Exchange’s website at
https://www.miaxoptions.com/rulefilings/pearl at MIAX PEARL’s principal
office, and at the Commission’s Public
Reference Room.
1
2
15 U.S.C. 78s(b)(1).
17 CFR 240.19b-4.
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[Federal Register Volume 86, Number 52 (Friday, March 19, 2021)]
[Notices]
[Pages 14968-14974]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-05744]
=======================================================================
-----------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-91331; File No. SBSDR-2021-01]
Security-Based Swap Data Repositories; ICE Trade Vault, LLC;
Notice of Filing of Application for Registration as a Security-Based
Swap Data Repository
March 16, 2021.
I. Introduction
On February 11, 2021, ICE Trade Vault, LLC (``ICE Trade Vault'')
filed with the Securities and Exchange Commission (``Commission'') an
application on Form SDR to register as a security-based swap data
repository (``SDR'') pursuant to Section 13(n)(1) of the Securities
Exchange Act of 1934 (``Exchange Act'') and 17 CFR 240.13n-1 (``Rule
13n-1'') thereunder,\1\ and as a securities information processor
(``SIP'') under Section 11A(b) of the Exchange Act.\2\ ICE Trade Vault
amended its application on March 10 and March 11, 2021. ICE Trade Vault
intends to operate as a registered SDR for security-based swap
(``SBS'') transactions in the credit derivatives asset class. The
Commission is publishing this notice to solicit comments from
interested persons regarding ICE Trade Vault's application,\3\ and the
Commission will consider any comments it receives in making its
determination whether to approve ICE Trade Vault's application for
registration as an SDR and as a SIP.
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\1\ 15 U.S.C. 78m(n)(1); 17 CFR 240.13n-1. A copy of ICE Trade
Vault's application on Form SDR and all non-confidential exhibits
and amendments thereto are available for public viewing on the
Commission's website. In 2016, ICE Trade Vault submitted a prior
application for registration as an SDR. See Release No. 77699 (Apr.
22, 2016), 81 FR 25475 (Apr. 28, 2016); Release No. 34-81223 (July
27, 2017), 82 FR 35844 (Aug. 1, 2017). ICE Trade Vault withdrew this
prior application in 2018. See Letter from Kara Dutta, General
Counsel, ICE Trade Vault, Mar. 23, 2018, https://www.sec.gov/divisions/marketreg/sdr/ice-trade-vault-sdr-application-withdrawal-letter-032318.pdf.
\2\ 15 U.S.C. 78k-1(b).
\3\ The descriptions set forth in this notice regarding the
structure and operations of ICE Trade Vault have been derived,
excerpted, or summarized from ICE Trade Vault's application on Form
SDR.
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II. Background
A. SDR Registration, Duties, and Core Principles
Section 13(n) of the Exchange Act makes it unlawful for any person,
unless registered with the Commission, directly or indirectly, to make
use of the mails or any means or instrumentality of interstate commerce
to perform the functions of an SDR.\4\ To be registered and maintain
registration, an SDR must comply with certain requirements and core
principles described in Section 13(n), as well as any requirements that
the Commission may impose by rule or regulation.\5\ In 2015, the
Commission adopted 17 CFR 240.13n-1 to 13n-12 under the Exchange Act to
establish Form SDR, the procedures for registration as an SDR, and the
duties and core principles applicable to an SDR (``SDR Rules'').\6\ The
Commission provided a temporary exemption from compliance with the SDR
Rules and also extended exemptions from the provisions of the Dodd-
Frank Act set forth in a Commission order providing temporary
exemptions and other temporary relief from compliance with certain
provisions of the Exchange Act concerning security-based swaps, and
these temporary exemptions expired in 2017.\7\
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\4\ 15 U.S.C. 78m(n).
\5\ Id.
\6\ See Release No. 34-74246 (Feb. 11, 2015), 80 FR 14438, 14438
(Mar. 19, 2015) (``SDR Adopting Release''). In 2016, the Commission
subsequently amended 17 CFR 240.13n-4 to address third-party
regulatory access to SBS data obtained by an SDR. See Release No.
34-78716 (Aug. 29, 2016), 81 FR 60585 (Sep. 2, 2016).
\7\ See Release No. 34-80359 (Mar. 31, 2017), 82 FR 16867 (Apr.
6, 2017).
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The Commission also has adopted 17 CFR 242.900 to 909 under the
Exchange Act (collectively, ``Regulation SBSR''), which governs
regulatory reporting and public dissemination of security-based swap
transactions.\8\ Among other things, Regulation SBSR requires each
registered SDR to register with the Commission as a SIP,\9\ and the
Form SDR constitutes an application for registration as a SIP, as well
as an SDR.\10\
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\8\ Release No. 34-74244 (Feb. 11, 2015), 80 FR 14563 (Mar. 19,
2015); Release No. 34-78321 (July 14, 2016), 81 FR 53546 (Aug. 12,
2016). Regulation SBSR and the SDR Rules are referred to
collectively as the ``SBS Reporting Rules.''
\9\ See 17 CFR 242.909.
\10\ See Form SDR, Instruction 2.
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In 2019, the Commission stated that implementation of the SBS
Reporting Rules can and should be done in a manner that carries out the
fundamental policy goals of the SBS Reporting Rules while minimizing
burdens as much as practicable.\11\ Noting ongoing concerns among
market participants about incurring unnecessary burdens and the
Commission's efforts to promote harmonization between the SBS Reporting
Rules and swap reporting rules, the Commission took the position that,
for four years following Regulation SBSR's Compliance Date 1 in each
asset class,\12\ certain actions with respect to the SBS Reporting
Rules would not provide a basis for a Commission enforcement
action.\13\ The no-action statement's relevance to ICE Trade Vault's
application for registration as an SDR and SIP is discussed further
below.
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\11\ Release No. 34-87780 (Dec. 18, 2019), 85 FR 6270, 6347
(Feb. 4, 2020) (``ANE Adopting Release'').
\12\ See id. Under Regulation SBSR, the first compliance date
(``Compliance Date 1'') for affected persons with respect to an SBS
asset class is the first Monday that is the later of: (i) six months
after the date on which the first SDR that can accept transaction
reports in that asset class registers with the Commission; or (ii)
one month after the compliance date for registration of SBS dealers
and major SBS participants (``SBS entities''). Id. at 6346. The
compliance date for registration of SBS entities is October 6, 2021.
See id. at 6270, 6345.
\13\ See id. The specific rule provisions of the SBS Reporting
Rules affected by the no-action statement are discussed in Part
II.B.
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B. Standard for Registration
As noted above, to be registered with the Commission as an SDR and
maintain such registration, an SDR is required to comply with the
requirements and core principles described in Section 13(n) of the
Exchange Act, as well as with any requirement that the Commission may
impose by rule or regulation.\14\ In addition, Rule 13n-1(c)(3) under
the Exchange Act provides that the Commission shall grant the
registration of an SDR if it finds that the SDR is so organized, and
has the capacity, to be able to: (i) Assure the prompt, accurate, and
reliable performance of its functions as an SDR; (ii) comply with any
applicable provisions of the securities laws and the rules and
regulations thereunder; and (iii) carry out its functions in a manner
consistent with the purposes of Section 13(n) of the Exchange Act and
the rules and regulations thereunder.\15\ The Commission shall deny the
registration of an SDR if it does not make any such finding.\16\
Similarly, to be registered with the Commission as a SIP, the
Commission must find that such applicant is so organized, and has the
capacity, to be able to assure the prompt, accurate, and reliable
performance of its functions as a SIP,
[[Page 14969]]
comply with the provisions of the Exchange Act and the rules and
regulations thereunder, carry out its functions in a manner consistent
with the purposes of the Exchange Act, and, insofar as it is acting as
an exclusive processor, operate fairly and efficiently.\17\
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\14\ See 15 U.S.C. 78m(n)(3).
\15\ 17 CFR 240.13n-1(c)(3).
\16\ Id.
\17\ See 15 U.S.C. 78k-1(b)(3).
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In determining whether an applicant meets the criteria set forth in
Rule 13n-1(c), the Commission will consider the information reflected
by the applicant on its Form SDR, as well as any additional information
obtained from the applicant. For example, Form SDR requires an
applicant to provide a list of the asset classes for which the
applicant is collecting and maintaining data or for which it proposes
to collect and maintain data, a description of the functions that it
performs or proposes to perform, general information regarding its
business organization, and contact information.\18\ Obtaining this
information and other information reflected on Form SDR and the
exhibits thereto--including the applicant's overall business structure,
financial condition, track record in providing access to its services
and data, technological reliability, and policies and procedures to
comply with its statutory and regulatory obligations--will enable the
Commission to determine whether to grant or deny an application for
registration.\19\ Furthermore, the information requested in Form SDR
will enable the Commission to assess whether the applicant is so
organized and has the capacity to comply and carry out its functions in
a manner consistent with the federal securities laws and the rules and
regulations thereunder, including the SBS Reporting Rules.\20\
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\18\ See SDR Adopting Release, supra note 6, at 14459.
\19\ See id. at 14458.
\20\ See id. at 14458-59.
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Consistent with the Commission's no-action statement in the ANE
Adopting Release,\21\ an entity wishing to register with the Commission
as an SDR must still submit an application on Form SDR but can address
the rule provisions included in the no-action statement by discussing
how the SDR complies with comparable Commodity Futures Trading
Commission (``CFTC'') requirements.\22\ Accordingly, in such instances
the Commission will not assess an SDR application for consistency or
compliance with the rule provisions included in the Commission's no-
action statement. Specifically, the Commission identified the following
provisions as not providing a basis for an enforcement action against a
registered SDR for the duration of the relief provided in the
Commission statement: Under Regulation SBSR, aspects of 17 CFR
242.901(a), 901(c)(2) through (7), 901(d), 901(e), 902, 903(b), 906(a)
and (b), and 907(a)(1), (a)(3), and (a)(4) through (6); under the SDR
Rules, aspects of Section 13(n)(5)(B) of the Exchange Act and 17 CFR
240.13n-4(b)(3) thereunder, and aspects of 17 CFR 240.13n-5(b)(1)(iii);
and under Section 11A(b) of the Exchange Act, any provision pertaining
to SIPs.\23\ Thus, an SDR applicant will not need to include materials
in its application explaining how it would comply with the provisions
noted above, and could instead rely on its discussion about how it
complies with comparable CFTC requirements.\24\ The applicant may
instead represent in its application that it: (i) Is registered with
the CFTC as a swap data repository; (ii) is in compliance with
applicable requirements under the swap reporting rules; (iii) satisfies
the standard for Commission registration of an SDR under Rule 13n-1(c);
and (iv) intends to rely on the no-action statement included in the ANE
Adopting Release for the period set forth in the ANE Adopting Release
with respect to any SBS asset class or classes for which it intends to
accept transaction reports.\25\
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\21\ See supra notes 11-13 and accompanying text.
\22\ See supra note 13.
\23\ The ANE Adopting Release provides additional discussion of
the particular aspects of the affected rules that would not provide
a basis for an enforcement action. See ANE Adopting Release, supra
note 11, at 6347-48.
\24\ Id. at 6348.
\25\ Id. For example, an applicant need not describe in Exhibit
S its functions as a SIP.
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III. Summary of ICE Trade Vault's Application on Form SDR
As noted above, ICE Trade Vault intends to operate as a registered
SDR for the credit derivatives asset class.\26\ ICE Trade Vault states
that its core duties are: (i) Acceptance and confirmation of data; (ii)
recordkeeping; (iii) public reporting; (iv) maintaining data privacy
and integrity; and (v) permitting access to regulators.\27\ It notes
that its fundamental purpose is to provide transparency to the SBS
market and publicly disseminate trade information.\28\ In its
application, ICE Trade Vault represents that it is provisionally
registered with the CFTC as a swap data repository, is in compliance
with applicable requirements under the CFTC reporting rules applicable
to a registered swap data repository, and intends to rely on the
Commission's position outlined in the ANE Adopting Release for
applicable reporting rules and SBSDR duties for the period set forth
therein.\29\ Below is an overview of the representations made in the
application materials.
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\26\ See Security-Based SDR Service Disclosure Document, Ex.
V.2; see also Swap Data Repository Rulebook, Security-Based Swap
Data Reporting Annex, Ex. HH.2, sec. 4.1.
\27\ See id.
\28\ See id.
\29\ See Form SDR, Application Letter from Trabue Bland,
President, ICE Trade Vault, dated Mar. 10, 2021, at 1, 2.
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A. Organization and Governance
ICE Trade Vault is a Delaware limited liability company, and is a
wholly owned subsidiary of Intercontinental Exchange Holdings, Inc.,
which, in turn, is a wholly owned subsidiary of Intercontinental
Exchange, Inc. (``ICE''), a publicly traded company.\30\ As a general
matter, the number of directors and composition of the Board of
Directors (``ITV Board'') shall be determined by ICE, as the sole
member of ICE Trade Vault.\31\ Currently, the ITV Board consists of at
least three directors, all of whom are appointed by ICE.\32\ The ITV
Board is composed of individuals selected from the following groups:
members of senior management or the Board of Directors of ICE,
independents and employees of ICE Trade Vault's users with derivatives
industry experience.\33\ ICE considers several factors in determining
the composition of the ITV Board, including whether directors, both
individually and collectively, possess the required integrity,
experience, judgment, commitment, skills and expertise to exercise
their obligations of oversight and guidance over an SDR and a swap data
repository regulated by the CFTC.\34\ Additionally, in accordance with
Exchange Act Rule 13n-4(c)(2), ICE Trade Vault provides users with the
[[Page 14970]]
opportunity to participate in the process for nominating the ICE Trade
Vault independent director and with the right to petition for
alternative candidates.\35\ At least one director will at all times be
``independent'' in accordance with applicable provisions of the New
York Stock Exchange Listed Company Manual.\36\ Two officers of ICE
Trade Vault's parent, ICE, currently serve as the non-independent
directors.\37\ ICE shall periodically review the composition of the ITV
Board to assure that the level of representation of directors is
appropriate for the interests of these constituencies in ICE Trade
Vault.\38\
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\30\ See Security-Based SDR Service Disclosure Document, Ex.
V.2, sec. 9. ICE is a holding company whose subsidiaries operate
exchanges, clearing houses, and data services for financial and
commodity markets. ICE operates global marketplaces for trading and
clearing a broad array of securities and derivatives contracts
across major asset classes, including energy and agricultural
commodities, interest rates, equities, equity derivatives, credit
derivatives, bonds, and currencies.
\31\ See Board of Directors Governance Principles, Ex. D.3.
\32\ See Security-Based SDR Service Disclosure Document, Ex.
V.2, sec. 9; see also Swap Data Repository Rulebook, Security-Based
Swap Data Reporting Annex, Ex. HH.2, sec. 2.1; Board of Directors
Governance Principles, Ex. D.3.
\33\ See Board of Directors Governance Principles, Ex. D.3.
\34\ See Security-Based SDR Service Disclosure Document, Ex.
V.2, sec. 9; see also Swap Data Repository Rulebook, Security-Based
Swap Data Reporting Annex, Ex. HH.2, sec. 2.1; Board of Directors
Governance Principles, Ex. D.3.
\35\ See id.
\36\ See id.
\37\ See id.
\38\ See Board of Directors Governance Principles, Ex. D.3.
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The ITV Board oversees all risks relating to ICE Trade Vault.\39\
The powers and authority of the ITV Board include the ability to: (i)
Designate and authorize specific appointed officers to act on behalf of
the ITV Board; (ii) fix, determine and levy all fees, when necessary;
(iii) prepare and amend the Rulebook; (iv) act in emergencies; and (v)
delegate any such power to the appropriate party.\40\ The ITV Board
oversees ICE Trade Vault's SDR functions as well as other regulated
services that ICE Trade Vault provides, such as the swap data
repository registered with the CFTC.\41\
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\39\ See Security-Based SDR Service Disclosure Document, Ex.
V.2, sec. 9; see also Swap Data Repository Rulebook, Security-Based
Swap Data Reporting Annex, Ex. HH.2, sec. 2.1; Board of Directors
Governance Principles, Ex. D.3.
\40\ See id.
\41\ See id.
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ICE Trade Vault's Chief Compliance Officer (``CCO'') is appointed
by the ITV Board and reports directly to the President of ICE Trade
Vault.\42\ The ITV Board approves the compensation of the CCO and meets
with the CCO at least annually.\43\ The CCO also works directly with
the ITV Board in certain instances, for example, when resolving
conflicts of interest.\44\ The CCO has supervisory authority over all
staff acting at the direction of the CCO and his or her
responsibilities include, but are not limited to: (i) preparing and
signing a compliance report with a financial report that conforms to
the requirements of Exchange Act Rule 13n-11(f), which shall be
provided to the SEC annually in accordance with Exchange Act Rule 13n-
11(d); (ii) reviewing the compliance of ICE Trace Vault with respect to
the requirements and core principles described in Section 13(n) of the
Exchange Act and the applicable SEC regulations; and (iii) establishing
and administering written policies and procedures reasonably designed
to prevent violations of the Exchange Act, the core principles
applicable to SDRs and applicable law.\45\
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\42\ See Security-Based SDR Service Disclosure Document, Ex.
V.2, sec. 9; see also Swap Data Repository Rulebook, Security-Based
Swap Data Reporting Annex, Ex. HH.2, sec. 2.1.1.
\43\ See id.
\44\ See id.
\45\ See id.
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ICE Trade Vault directors, officers and employees must comply with
the ICE Global Code of Business Conduct, which describes policies for,
among other things, handling conflicts of interest, prohibiting insider
trading, complying with the law and document management and retention
requirements.\46\ In addition, ICE Trade Vault prohibits any member of
the ITV Board or of any board committee which has authority to take
action for and in the name of ICE Trade Vault from knowingly
participating in such body's deliberations or voting in any matter
involving a named party in interest (a person or entity that is
identified by name as a subject of any matter being considered by the
ITV Board or a board committee) where such member (i) is a named party
in interest, (ii) is an employer, employee, or guarantor of a named
party in interest or an affiliate thereof, (iii) has a family
relationship (the person's spouse, former spouse, parent, stepparent,
child, stepchild, sibling, stepbrother, stepsister, grandparent,
grandchild, uncle, aunt, nephew, niece or in-law) with a named party in
interest or (iv) has any other significant, ongoing business
relationship with a named party in interest or an affiliate
thereof.\47\ The CCO shall determine whether any member of the
deliberating body is subject to a prohibition under its conflicts of
interest policies.\48\
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\46\ See ICE Global Code of Business Conduct, Ex. D.4.
\47\ See Swap Data Repository Rulebook, Security-Based Swap Data
Reporting Annex, Ex. HH.1, sec. 2.10.2.
\48\ See Swap Data Repository Rulebook, Security-Based Swap Data
Reporting Annex, Ex. HH.2, sec. 2.10.4.
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B. Access and Information Security
ICE Trade Vault represents that it provides access to its SDR
service on a fair, open and not unreasonably discriminatory basis.\49\
According to ICE Trade Vault, access to and usage of its service is
available to all market participants that validly engage in SBS
transactions and to all market venues from which data can be submitted
to ICE Trade Vault, and do not require the use of any other ancillary
service offered by ICE Trade Vault.\50\ ICE Trade Vault represents that
for security reasons, access to the ICE Trade Vault system is strictly
limited to users (entities with valid permissions and security
access).\51\ Users will only have access to (i) data they reported,
(ii) data that pertains to a SBS to which they are a counterparty;
(iii) data that pertains to a SBS for which the user is an execution
agent, platform, registered broker-dealer or a third-party reporter;
and (iv) data that ICE Trade Vault is required to make publicly
available.\52\
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\49\ See Security-Based SDR Service Disclosure Document, Ex.
V.2, sec. 1; see also Swap Data Repository Rulebook, Security-Based
Swap Data Reporting Annex, Ex. HH.2, sec. 3.1.
\50\ See id.; see also SDR Adopting Release, 80 FR at 14451-52
(Commission noting that confirmation and dispute resolution services
or functions ``are ancillary. . . . [and are] not `core' SDR
services, which would cause a person providing such core services to
meet the definition of an SDR, and thus, require the person to
register with the Commission as an SDR. However, SDRs are required
to perform these two services or functions, and thus, they are
required ancillary services[.] . . . An SDR may delegate some of
these required ancillary services to third party service providers,
who do not need to register as SDRs to provide such services. The
SDR will remain legally responsible for the third party service
providers' activities relating to the required ancillary services
and their compliance with applicable rules under the Exchange
Act.'').
\51\ See Security-Based SDR Service Disclosure Document, Ex.
V.2, sec. 1; see also ICE Trade Vault User Agreement, Ex. U.2.
\52\ See id.; see also Security-Based Swap Data Repository User
Onboarding Process Guide, Ex. N.6.
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According to ICE Trade Vault, access to its system is provided to
parties that have a duly executed User Agreement in effect with ICE
Trade Vault.\53\ When enrolling with ICE Trade Vault, users must
designate an administrator with respect to the user's use of ICE Trade
Vault to ensure ICE Trade Vault access is granted by a trusted
individual at the user's firm who is closest to and has the most
knowledge of those in the firm who require access; the administrator
will create, permission and maintain all user names and passwords for
the user.\54\ According to ICE Trade Vault, passwords must meet
technical and procedural processes for information security and must
include at least three of the following elements: uppercase letters,
lowercase letters, numbers, and special characters.\55\
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\53\ See Security-Based SDR Service Disclosure Document, Ex.
V.2, sec. 1; Swap Data Repository Rulebook, Security-Based Swap Data
Reporting Annex, Ex. HH.2, sec. 3.1.1; see also ICE Trade Vault User
Agreement, Ex. U.2.
\54\ See Security-Based SDR Service Disclosure Document, Ex.
V.2, sec. 1; Swap Data Repository Rulebook, Security-Based Swap Data
Reporting Annex, Ex. HH.2, sec. 3.1.1.
\55\ See Security-Based SDR Service Disclosure Document, Ex.
V.2, sec. 1.
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ICE Trade Vault may decline the request of an applicant to become a
user
[[Page 14971]]
of its system if such denial is required in order to comply with
applicable law (e.g., to comply with sanctions administered and
enforced by the Office of Foreign Assets Control of the U.S. Department
of the Treasury).\56\ If an applicant is denied by ICE Trade Vault for
any other reason, the applicant will be entitled to notice and an
opportunity to contest such determination in accordance with the
Rulebook.\57\ If the denial of an application is reversed, the
applicant will be granted access to ICE Trade Vault promptly following
completion of onboarding requirements.\58\ In addition, ICE Trade Vault
may revoke a user's access to ICE Trade Vault following a determination
that (i) the user has violated any provision of the User Agreement
(including by failing to pay any fees when due), the Rulebook,
applicable law or any ICE Trade Vault policies and procedures related
to its SDR service or (ii) such action is necessary or appropriate in
light of ICE Trade Vault's regulatory responsibilities or for the
protection of the integrity of its system (each, an ``Access
Determination'').\59\ Access Determinations shall be made by the CCO
based on the information gathered during the inquiry, if any, and
reviewed by the President and General Counsel of ICE Trade Vault within
5 business days of such determination prior to implementing any
revocation of access.\60\ Notwithstanding the foregoing, the CCO's
Access Determination may be implemented immediately without prior
review by the President or General Counsel (``Immediate Revocation'')
where the CCO determines such revocation is necessary for the
protection of the integrity of the ICE Trade Vault system or to fulfill
ICE Trade Vault's regulatory responsibilities.\61\ If (i) an Immediate
Revocation occurs or (ii) the President and General Counsel conclude
that an Access Determination is appropriate and in compliance with
applicable law, the CCO shall, within 1 business day, provide notice by
email to the user to which the Access Determination applies, including
in such notice the specific reasons for the determination.\62\ If the
President and General Counsel conclude that limitation or revocation of
access pursuant to an Access Determination made by the CCO would
constitute unreasonable discrimination, the President and General
Counsel shall take such actions as are necessary to maintain or restore
access to ICE Trade Vault, its services or SDR information, as
applicable.\63\
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\56\ See Security-Based SDR Service Disclosure Document, Ex.
V.2, sec. 1; Swap Data Repository Rulebook, Security-Based Swap Data
Reporting Annex, Ex. HH.2, sec. 3.1.2.
\57\ See id.
\58\ See id.
\59\ See Swap Data Repository Rulebook, Security-Based Swap Data
Reporting Annex, Ex. HH.2, sec. 3.3.
\60\ See id.
\61\ See id.
\62\ See id.
\63\ See id.; see also Swap Data Repository Rulebook, Security-
Based Swap Data Reporting Annex, Ex. HH.2, sec. 3.4 (review and
dispute of revocation of access), 3.5 (final access determinations),
3.6 (implementation of a revocation of access).
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ICE Trade Vault states that it recognizes its responsibility to
ensure data confidentiality and dedicates significant resources to
information security to prevent the misappropriation or misuse of
confidential information and any other SDR information not subject to
public dissemination (i.e., the information identified in Exchange Act
Rule 902(c)) and that it does not, as a condition of accepting SBS data
from users, require the waiver of any privacy rights by such users.\64\
ICE Trade Vault states that it maintains a security policy that sets
forth technical and procedural processes for information security and
contains an extensive list of policies and means of implementation and
that it uses a multi-tiered firewall deployment to provide network
segmentation and access control to its services.\65\ ICE Trade Vault
states that its application servers are housed in a demilitarized
network zone behind external firewalls and that a second set of
internal firewalls further isolate ICE Trade Vault database systems,
while an intrusion system provides added security to detect any threats
and network sensors analyze all internet and private line traffic for
malicious patterns.\66\
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\64\ See Security-Based SDR Service Disclosure Document, Ex.
V.2, sec.4.
\65\ See id.
\66\ See id.
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ICE Trade Vault states that tactical controls are regularly
examined and tested by multiple tiers of internal and external test
groups, auditors and independently contracted third-party security
testing firms.\67\ According to ICE Trade Vault, in addition, the
security policy imposes an accountable and standard set of best
practices to protect the confidentiality of users' SDR information,
including confidential information and other SDR information not
subject to public dissemination.\68\ ICE Trade Vault states that it
completes an audit for adherence to the data security policies on at
least an annual basis; the audit tests the following applicable
controls, among others, to ICE Trade Vault systems: (i) Logical access
controls; (ii) logical access to databases; (iii) physical and
environmental controls; (iv) backup procedures; and (v) change
management.\69\ ICE Trade Vault states that it has a robust information
security program and maintains effective and current policies and
procedures to ensure employee compliance; ICE Trade Vault's information
security program includes: asset management; physical and environmental
security; authorization, authentication and access control management;
internet, email and data policy management, record retention
management; and accountability, compliance and auditability.\70\ ICE
Trade Vault states that it performs network scans and penetration tests
regularly to ensure the information security systems are performing as
designed.\71\
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\67\ See id.
\68\ See id.
\69\ See id.
\70\ See id.
\71\ See id.
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ICE Trade Vault maintains and will continue to maintain a robust
emergency and business-continuity and disaster recovery plan
(``Business Continuity Plan'') that allows for timely resumption of key
business processes and operations following unplanned interruptions,
unavailability of staff, inaccessibility of facilities, and disruption
or disastrous loss to one or more of ICE Trade Vault's facilities or
services.\72\ In accordance with the Business Continuity Plan, all
production system hardware and software is replicated in near real-time
at a geographical- and vendor-diverse disaster recovery site to avoid
any loss of data.\73\ ICE Trade Vault shall notify the SEC as soon as
it is reasonably practicable of ICE Trade Vault's invocation of its
emergency authority, any material business disruption, or any threat
that actually or potentially jeopardizes automated system capacity,
integrity, resiliency, availability or security.\74\
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\72\ See id.
\73\ See id.
\74\ See id.; see also Swap Data Repository Rulebook, Security-
Based Swap Data Reporting Annex, Ex. HH.2, sec. 2.8.3 (``ICE Trade
Vault will notify the SEC as soon as practicable of any action
taken, or proposed to be taken (time permitting), pursuant to this
Rule 2.8.3. The decision-making process with respect to, and the
reasons for, any such action will be recorded in writing. ICE Trade
Vault will also notify Users via email as soon as practicable of any
action taken (time permitting), or proposed to be taken, pursuant to
this Rule 2.8.3.'').
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C. Acceptance and Use of SBS Data
ICE Trade Vault states that it will accept data in respect of all
SBS trades
[[Page 14972]]
in the credit derivatives asset class and promptly records such data
upon receipt.\75\ ICE Trade Vault requires all users to report complete
and accurate trade information and to review and resolve all error
messages generated by the ICE Trade Vault system with respect to the
data they have submitted.\76\ According to ICE Trade Vault, access to
SDR information by ICE Trade Vault employees and others performing
functions on behalf of ICE Trade Vault is strictly limited to those
with the direct responsibility for supporting the ICE Trade Vault
system, users and regulators.\77\ ICE Trade Vault employees and others
performing functions on behalf of ICE Trade Vault are prohibited from
using SDR information other than in the performance of their job
responsibilities.\78\ In accordance with applicable SEC regulations,
ICE Trade Vault may disclose, for commercial purposes, certain SDR
information; any such disclosures shall be made solely on an aggregated
basis in a manner that ensures that the disclosed SDR information
cannot reasonably be attributed to individual transactions or
users.\79\
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\75\ See Swap Data Repository Rulebook, Security-Based Swap Data
Reporting Annex, Ex. HH.2, sec. 4.1.
\76\ See Swap Data Repository Rulebook, Security-Based Swap Data
Reporting Annex, Ex. HH.2, sec. 4.2.1.
\77\ See Swap Data Repository Rulebook, Security-Based Swap Data
Reporting Annex, Ex. HH.2, sec. 3.8; Security-Based SDR Service
Disclosure Document, Ex. V.2, sec. 5.
\78\ See id.
\79\ See id.
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ICE Trade Vault states that, in accordance with Exchange Act Rule
13n-5(b)(5), it maintains internal policies and procedures in place to
ensure its recording process and operation does not invalidate or
modify the terms of trade information, and that it regularly audits
these controls to ensure the prevention of unauthorized and unsolicited
changes to SDR information maintained in the ICE Trade Vault system
through protections related to the processing of SBS.\80\
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\80\ See Swap Data Repository Rulebook, Security-Based Swap Data
Reporting Annex, Ex. HH.2, sec. 4.5.
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Additionally, ICE Trade Vault states that it reasonably relies on
the accuracy of trade data submitted by users and that all users must
complete a conformance test to validate data submission integrity prior
to ICE Trade Vault's acceptance of actual SBS data and must immediately
inform ICE Trade Vault of any system or technical issues that may
affect the accuracy of SBS data transmissions.\81\ ICE Trade Vault
states that users are responsible for the timely resolution of trade
record errors and disputes.\82\ ICE Trade Vault provides users
electronic methods to extract SDR information for trade data
reconciliation.\83\ Disputes involving clearing transactions shall be
resolved in accordance with the clearing agency's rules and applicable
law.\84\ For an alpha SBS executed on a platform and reported by a
platform user, disputes must be resolved in accordance with the
platform's rules and applicable law.\85\ For SBS that are reported by a
user that is neither a platform nor a clearing agency, counterparties
shall resolve disputes with respect to SDR information in accordance
with the counterparties' master trading agreement and applicable
law.\86\ Users that are non-reporting sides may verify or dispute the
accuracy of trade information that has been submitted by a reporting
side to ICE Trade Vault, where the non-reporting side is identified as
the counterparty, by sending a verification message indicating that it
verifies or disputes such trade information.\87\ If the reporting side
for a SBS transaction discovers an error in the information reported
with respect to a SBS, or receives notification from a counterparty of
an error, the reporting side shall promptly submit to ICE Trade Vault
an amended report that corrects such error.\88\ ICE Trade Vault will
disseminate a corrected transaction report in instances where the
initial report included erroneous primary trade information.\89\ Users
are required to notify ICE Trade Vault promptly of disputed trade data
by utilizing the ``Dispute'' functionality; when a User ``disputes'' a
trade, the status of the trade will be recorded as ``Disputed,'' and
notice of the dispute will be sent promptly to the other party to the
trade; the trade record may then be amended or canceled upon mutual
agreement of the parties; the status of the trade will remain
``Disputed'' until either party to the trade provides evidence
satisfactory to ICE Trade Vault that the dispute has been resolved.\90\
ICE Trade Vault will provide regulators with reports identifying the
SDR information that is deemed disputed.\91\
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\81\ See Security-Based SDR Service Disclosure Document, Ex.
V.2, sec. 6.
\82\ See id.; see also Swap Data Repository Rulebook, Security-
Based Swap Data Reporting Annex, Ex. HH.2, sec. 4.6 and 4.7.
\83\ See Security-Based SDR Service Disclosure Document, Ex.
V.2, sec. 6; Swap Data Repository Rulebook, Security-Based Swap Data
Reporting Annex, Ex. HH.2, sec. 4.6.
\84\ See Security-Based SDR Service Disclosure Document, Ex.
V.2, sec. 6; Swap Data Repository Rulebook, Security-Based Swap Data
Reporting Annex, Ex. HH.2, sec. 4.2.4 and 4.7.
\85\ See id.
\86\ See Security-Based SDR Service Disclosure Document, Ex.
V.2, sec. 6; Swap Data Repository Rulebook, Security-Based Swap Data
Reporting Annex, Ex. HH.2, sec. 4.7.
\87\ See Security-Based SDR Service Disclosure Document, Ex.
V.2, sec. 6; see also Swap Data Repository Rulebook, Security-Based
Swap Data Reporting Annex, Ex. HH.2, sec. 4.2.3.
\88\ See Security-Based SDR Service Disclosure Document, Ex.
V.2, sec. 6; see also Swap Data Repository Rulebook, Security-Based
Swap Data Reporting Annex, Ex. HH.2, sec. 4.2.2.
\89\ See id.
\90\ See id.; see also Swap Data Repository Rulebook, Security-
Based Swap Data Reporting Annex, Ex. HH.2, sec. 4.7.
\91\ See Swap Data Repository Rulebook, Security-Based Swap Data
Reporting Annex, Ex. HH.2, sec. 4.7; see also Security-Based SDR
Service Disclosure Document, Ex. V.2, sec. 6.
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D. Fees
According to ICE Trade Vault, all fees imposed by ICE Trade Vault
in connection with the reporting of swap data shall be equitable and
established in a uniform and non-discriminatory manner as determined
from time-to-time by ICE Trade Vault.\92\ In addition, ICE Trade Vault
represents that all fees will be commensurate to ICE Trade Vault's
costs for providing its SDR service. ICE Trade Vault states it will
only assess fees as noted in its fee schedule, and there will be no
``hidden fees'' associated with ICE Trade Vault Service.\93\
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\92\ See Security-Based SDR Service Disclosure Document, Ex.
V.2, sec.8; see also Swap Data Repository Rulebook, Security-Based
Swap Data Reporting Annex, Ex. HH.2, sec. 2.7 (``In accordance with
Exchange Act Rule 13n-4(c), any dues, fees or other charges imposed
by, and any discounts or rebates offered by, ICE Trade Vault in
connection with the ICE SBSDR Service shall be fair and reasonable
and not unreasonably discriminatory. ICE Trade Vault dues, fees,
other charges, discounts, or rebates shall be applied consistently
across all similarly situated Users.'')
\93\ See ICE Trade Vault Security-Based Swap Data Repository
Service and Pricing Schedule, Ex. M.2.
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The most current pricing schedule is made available via the ICE
Trade Vault website. ICE Trade Vault applies fees according to the type
of SDR user accessing ICE Trade Vault: counterparty, clearing agency,
execution agent and third party reporter.\94\ According to ICE Trade
Vault, in the case of the execution agent versus the third party
reporter, the application of fees is differentiated based upon the type
of service provided in each case.\95\ According to ICE Trade Vault, an
execution agent is directly involved with trade execution; as such, it
is charged directly for the fees associated with the SDR just as a
counterparty, whereas the underlying
[[Page 14973]]
funds are not charged a fee.\96\ However, the third party reporter is
not involved with the trade execution and simply provides a service to
counterparties who have an obligation to report; therefore, according
to ICE Trade Vault, they are assessed a fee for each of those reporting
parties on behalf of whom they are reporting the trades.\97\ According
to ICE Trade Vault, as a result, the third party reporter is able to
pass the cost of its service to each of its counterparties utilizing
third party reporting; this allows for the cost of ICE Trade Vault to
be fair and equal for reporting parties whether they choose to report
directly to ICE Trade Vault or via a third party reporter.\98\
Additionally, according to ICE Trade Vault, clearing agency fees vary
from other users due to the unique requirements necessary to support
this type of customer; ICE Trade Vault must build out a separate custom
interface(s) and purchase and maintain additional hardware necessary to
support the high volume of trades submitted to the SDR by the clearing
agency; as a result, the minimum fee outlined in the ICE Trade Vault
pricing schedule reflects the costs incurred by ICE Trade Vault to
purchase the necessary hardware and software and the cost to build out
the SDR system; in addition, the clearing agency fees also reflect the
additional ongoing support and maintenance costs for this type of high
volume user.\99\ According to ICE Trade Vault, all fees within the
schedule, including the monthly per $1MM notional, are cost based to
ensure ICE Trade Vault may operate with a minimum margin while allowing
for a reasonable cost to its customers, given the expected volume of
trades it expects to receive as an SDR.\100\
---------------------------------------------------------------------------
\94\ See Dues, Fees and Charges, Ex. M.1.
\95\ See id.
\96\ See id.
\97\ See id.
\98\ See id.
\99\ See id.
\100\ See id.
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ICE Trade Vault will assess a Repository Fee upon its acceptance of
any trade message for an SBS transaction.\101\ For both cleared and
uncleared/bilateral transactions, the Repository Fee rates will be
$1.35 per $1/MM Notional. For cleared SBS, the Repository Fee will be
charged to the clearing agency that cleared the SBS and, for uncleared
or bilateral SBS transactions, the fee will be charged to the user
which submitted the record as a counterparty or execution agent.
---------------------------------------------------------------------------
\101\ See ICE Trade Vault Security-Based Swap Data Repository
Service and Pricing Schedule, Ex. M.2.
---------------------------------------------------------------------------
For transactions submitted directly by a clearing agency user,
clearing agency users will have a minimum monthly invoice per user of
$10,000, and the invoice will be the greater of (i) the total of all
Repository Fees incurred by user or (ii) $10,000.\102\ If a clearing
agency user does not have any submittals in a given month but does have
open positions, the $10,000 will be charged as a minimum maintenance
fee in the place of any Repository Fees. If a clearing agency user does
not have any submittals in a given month and does not have any open
positions then no fees will be charged.
---------------------------------------------------------------------------
\102\ See id.
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For transactions submitted directly by a counterparty user, the
minimum monthly invoice per user will be $375.\103\ In a given month,
each user represented as a counterparty shall be invoiced the greater
of (i) the total of all Repository Fees incurred by user or (ii) $375.
If the user does not have any submittals in a given month but does have
open positions on SBS in the ICE Trade Vault Service, the $375 will be
charged as a minimum maintenance fee in the place of any Repository
Fees. If the user does not have any submittals in a given month and
does not have any open positions then no fees will be charged.
---------------------------------------------------------------------------
\103\ See id.
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When an execution agent submits an SBS transaction on behalf of the
counterparty and is listed as the execution agent, the execution agent
will be charged the Repository Fee (not the underlying funds, accounts
or other principals).\104\ When an execution agent submits an SBS
transaction where the execution agent is acting as the counterparty, it
will be charged the Repository Fee. The minimum monthly invoice for an
execution agent will be a total of $375, including all transactions in
which the executing agent is acting on behalf of a counterparty or
acting as its own counterparty.
---------------------------------------------------------------------------
\104\ See id.
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For transactions submitted by third party reporters, third party
reporters will only be charged a Repository Fee for those transactions
they report on behalf of non-users of ICE Trade Vault.\105\ Each non-
user on whose behalf the third party reporter submits the transaction
will have an invoice created as if it were a user, and will be invoiced
the greater of (i) the total of all Repository Fees incurred by non-
user or (ii) $200. If the non-user does not have any submittals by the
third party reporter in a given month but does have open positions,
$200 will be charged as a minimum maintenance fee in the place of any
Repository Fees. If the non-user does not have any submittals by the
third party reporter in a given month and does not have any open
positions then no fees will be charged. The details regarding the
Repository Fees incurred or the minimum monthly amount for each non-
user will be detailed on the third-party reporter's invoice and summed
across all non-users to determine the total amount charged to any one
third party reporter. ICE Trade Vault will solely provide invoices to
the third party reporter for trades reported on behalf of the non-user
and will not issue an invoice directly to any non-users.
---------------------------------------------------------------------------
\105\ See id.
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E. Recordkeeping
According to ICE Trade Vault, users access ICE Trade Vault through
a web-based front-end that requires user systems to (a) satisfy the
minimum computing system and web browser requirements specified in the
ICE Trade Vault Technical Guides; (b) support HTTP 1.1 and 128-bit or
stronger SSL data encryption; and (c) the most recent version of
Chrome.\106\ Trade information submitted to ICE Trade Vault is saved in
a non-rewriteable, non-erasable format, to a redundant, local database
and a remote disaster recovery database in near real-time; the database
of trade information submitted to ICE Trade Vault is backed-up to tape
daily with tapes moved offsite weekly.\107\ Counterparties' individual
trade data records remain available to users at no charge for online
access through ICE Trade Vault from the date of submission until five
years after expiration of the trade (last day of delivery or settlement
as defined for each product).\108\ After the initial five-year period,
counterparties' trade data will be stored off-line and remain available
upon a three-day advance request to ICE Trade Vault, until ten years
from the termination date.\109\ According to ICE Trade Vault, users
will retain unimpaired access to their online and archived trade
data.\110\ However, if a user or its regulator requests or requires
archived trade information from ICE Trade Vault to be delivered other
than via the web-based front-end or the application programming
interface (``API'') or in a non-standard format, such user may be
required, in
[[Page 14974]]
accordance with the ICE Trade Vault schedule of fees and charges, to
reimburse ICE Trade Vault for its reasonable expenses in producing data
in response to such request or requirement as such expenses are
incurred.\111\ Similarly, ICE Trade Vault may require a user to pay all
reasonable expenses associated with producing records relating to its
transactions pursuant to a court order or other legal process, as those
expenses are incurred by ICE Trade Vault, whether such production is
required at the instance of such user or at the instance of another
party with authority to compel ICE Trade Vault to produce such
records.\112\
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\106\ See Security-Based SDR Service Disclosure Document, Ex.
V.2, sec. 2; see also Swap Data Repository Rulebook, Security-Based
Swap Data Reporting Annex, Ex. HH.2, sec. 3.7.
\107\ See Swap Data Repository Rulebook, Security-Based Swap
Data Reporting Annex, Ex. HH.2, sec. 7.1; see also Security-Based
SDR Service Disclosure Document, Ex. V.2, sec. 3.
\108\ See Security-Based SDR Service Disclosure Document, Ex.
V.2, sec. 3.
\109\ See Security-Based SDR Service Disclosure Document, Ex.
V.2, sec. 3.
\110\ See id.
\111\ See id.; see also Swap Data Repository Rulebook, Security-
Based Swap Data Reporting Annex, Ex. HH.2, sec. 7.1.
\112\ See id.
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F. Disclosure
ICE Trade Vault publishes a disclosure document to provide a
summary of information regarding its service offerings and the SBS data
it maintains.\113\ Specifically, the disclosure document sets forth a
description of the following: (i) criteria for access to the ICE Trade
Vault service and SBS data; (ii) criteria for connection and linking to
ICE Trade Vault; (iii) policies and procedures to safeguard SBS data
and operational reliability; (iv) policies and procedures to protect
the privacy of SBS data; (v) policies and procedures on ICE Trade Vault
commercial and non-commercial use of SBS data; (vi) ICE Trade Vault
data accuracy and dispute resolution procedures; (vii) ICE Trade Vault
services; (viii) ICE Trade Vault pricing; and (ix) ICE Trade Vault
governance arrangements.\114\
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\113\ See Security-Based SDR Service Disclosure Document, Ex.
V.2.
\114\ See id.
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G. Regulatory Reporting and Public Dissemination
As a registered SDR, ICE Trade Vault would carry out an important
role in the regulatory reporting and public dissemination of SBS
transactions. As noted above, ICE Trade Vault has stated that it
intends to rely on the no-action statement included in the ANE Adopting
Release for the period set forth in the ANE Adopting Release with
respect to the credit derivatives asset class.\115\ Therefore, ICE
Trade Vault does not need to include materials in its application
explaining how it would comply with the provisions of the SBS Reporting
Rules noted in the no-action statement.\116\ Instead, ICE Trade Vault
may rely on its discussion about how it complies with comparable CFTC
requirements pertaining to regulatory reporting and public
dissemination of swap transactions.
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\115\ See supra note 29 and accompanying text.
\116\ However, the ICE Trade Vault application includes
provisions explaining how it would require users to identify SBS, as
required by Rule 901(c)(1) of Regulation SBSR. See Security-Based
SDR Service Disclosure Document, Ex. N.5 (fields 146-148). The ICE
Trade Vault application also includes a provision explaining how it
would comply with a condition to the no-action statement included in
the ANE Adopting Release. See Security-Based SDR Service Disclosure
Document, Ex. N.4, sec. 3.5 (providing, in the case of a credit
security-based swap, for dissemination of a capped notional size of
$5 million if the true notional size of the transaction is $5
million or greater).
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IV. Solicitation of Comments
Interested persons are invited to submit written data, views, and
arguments concerning ICE Trade Vault's Form SDR, including whether ICE
Trade Vault has satisfied the requirements for registration as an SDR
and as a SIP. Commenters are requested, to the extent possible, to
provide empirical data and other factual support for their views.
Comments may be submitted by any of the following methods:
Electronic comments
Use the Commission's internet comment form (https://www.sec.gov/rules/proposed.shtml); or
Send an email to [email protected]. Please include
File Number SBSDR-2021-01 on the subject line.
Paper comments
Send paper comments to Secretary, Securities and Exchange
Commission, 100 F Street NE, Washington, DC 20549-1090. All submissions
should refer to File Number SBSDR-2021-01.
To help the Commission process and review your comments more
efficiently, please use only one method of submission. The Commission
will post all comments on the Commission's internet website (https://www.sec.gov/rules/other.shtml).
Copies of the Form SDR, all subsequent amendments, all written
statements with respect to the Form SDR that are filed with the
Commission, and all written communications relating to the Form SDR
between the Commission and any person, other than those that may be
withheld from the public in accordance with the provisions of 5 U.S.C.
552, will be available for website viewing and printing in the
Commission's Public Reference Section, 100 F Street, NE, Washington, DC
20549, on official business days between the hours of 10:00 a.m. and
3:00 p.m.
All comments received will be posted without change. Persons
submitting comments are cautioned that we do not redact or edit
personal identifying information from comment submissions. You should
submit only information that you wish to make available publicly. All
submissions should refer to File Number SBSDR-2021-01 and should be
submitted on or before April 9, 2021.
By the Commission.
J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2021-05744 Filed 3-18-21; 8:45 am]
BILLING CODE 8011-01-P
