Security-Based Swap Data Repositories; ICE Trade Vault, LLC; Order Approving Application for Registration as a Security-Based Swap Data Repository, 32703-32714 [2021-13140]

Agencies

• SECURITIES AND EXCHANGE COMMISSION

[Federal Register Volume 86, Number 117 (Tuesday, June 22, 2021)]
[Notices]
[Pages 32703-32714]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-13140]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-92189; File No. SBSDR-2021-01]


Security-Based Swap Data Repositories; ICE Trade Vault, LLC; 
Order Approving Application for Registration as a Security-Based Swap 
Data Repository

June 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, March 11, and April 14, 2021 
(collectively, the ``ITV Application''). ICE Trade Vault intends to 
operate as a registered SDR for security-based swap (``SBS'') 
transactions in the credit derivatives asset class.
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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).
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    The Commission published notice of the ITV Application in the 
Federal Register for public comment on March 19, 2021,\3\ and the 
Commission received in response one comment letter from the 
International Swaps and Derivatives Association, Inc. (``ISDA'').\4\ 
While generally supportive of the ITV Application, the ISDA Letter 
includes several requests related to regulatory reporting and public 
dissemination, which are addressed in Part III.G. As discussed in Parts 
III and IV below, the Commission has carefully reviewed the ITV 
Application and the comment received. This order grants ICE Trade 
Vault's application to register as an SDR in the asset classes noted 
above, and as a SIP.
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    \3\ Release No. 34-91331 (Mar. 16, 2021), 86 FR 14968 (Mar. 19, 
2021) (``ICE Trade Vault Notice'').
    \4\ Letter from Eleanor Hsu, Director, Data and Reporting, ISDA, 
dated Apr. 9, 2021 (``ISDA Letter'').
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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.\5\ 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.\6\ 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'').\7\ 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.\8\
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    \5\ 15 U.S.C. 78m(n).
    \6\ Id.
    \7\ 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).
    \8\ 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.\9\ Among other things, Regulation SBSR requires each 
registered SDR to register with the Commission as a SIP,\10\ and the 
Form SDR constitutes an application for registration as a SIP, as well 
as an SDR.\11\
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    \9\ 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 Adopting Release''). Regulation SBSR and 
the SDR Rules are referred to collectively as the ``SBS Reporting 
Rules.''
    \10\ See 17 CFR 242.909.
    \11\ 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.\12\ 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,\13\ certain actions with respect to the SBS Reporting 
Rules would not provide a basis for a Commission enforcement 
action.\14\ 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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    \12\ Release No. 34-87780 (Dec. 18, 2019), 85 FR 6270, 6347 
(Feb. 4, 2020) (``ANE Adopting Release'').
    \13\ 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.
    \14\ 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.\15\ 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

[[Page 32704]]

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.\16\ The Commission shall deny the 
registration of an SDR if it does not make any such finding.\17\ 
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, 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.\18\
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    \15\ See 15 U.S.C. 78m(n)(3).
    \16\ 17 CFR 240.13n-1(c)(3).
    \17\ Id.
    \18\ 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.\19\ 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.\20\ 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.\21\
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    \19\ See SDR Adopting Release, supra note 7, at 14459.
    \20\ See id. at 14458.
    \21\ See id. at 14458-59.
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    Consistent with the Commission's no-action statement in the ANE 
Adopting Release,\22\ 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.\23\ 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.\24\ 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.\25\ 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.\26\
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    \22\ See supra notes 12-14 and accompanying text.
    \23\ See supra note 14.
    \24\ 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 12, at 6347-48.
    \25\ Id. at 6348.
    \26\ Id. For example, an applicant need not describe in Exhibit 
S its functions as a SIP.
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III. Review of ICE Trade Vault's Application Under SBS Reporting Rules

    As noted above, ICE Trade Vault intends to operate as a registered 
SDR for the credit derivatives asset class.\27\ 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.\28\ It notes 
that its fundamental purpose is to provide transparency to the SBS 
market and publicly disseminate trade information.\29\ 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.\30\ Below is a review of the representations made in the 
application materials against the SBS Reporting Rules, taking into 
account ICE Trade Vault's reliance on the Commission's position 
outlined in the ANE Adopting Release.
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    \27\ 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.
    \28\ See id.
    \29\ See id.
    \30\ 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

1. Summary of ICE Trade Vault's Application
    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.\31\ 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.\32\ Currently, the ITV Board consists of at 
least three directors, all of whom are appointed by ICE.\33\ The ITV 
Board is composed of individuals selected from the following groups:

[[Page 32705]]

Members of senior management or the Board of Directors of ICE, 
independents and employees of ICE Trade Vault's users with derivatives 
industry experience.\34\ 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.\35\ Additionally, in accordance with 
Exchange Act Rule 13n-4(c)(2), ICE Trade Vault provides users with the 
opportunity to participate in the process for nominating the ICE Trade 
Vault independent director and with the right to petition for 
alternative candidates.\36\ At least one director will at all times be 
``independent'' in accordance with applicable provisions of the New 
York Stock Exchange Listed Company Manual.\37\ Two officers of ICE 
Trade Vault's parent, ICE, currently serve as the non-independent 
directors.\38\ 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.\39\
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    \31\ 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.
    \32\ See Board of Directors Governance Principles, Ex. D.3.
    \33\ 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.
    \34\ See Board of Directors Governance Principles, Ex. D.3.
    \35\ 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.
    \36\ See id.
    \37\ See id.
    \38\ See id.
    \39\ See Board of Directors Governance Principles, Ex. D.3.
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    The ITV Board oversees all risks relating to ICE Trade Vault.\40\ 
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.\41\ 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.\42\
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    \40\ 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.
    \41\ See id.
    \42\ 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.\43\ The compensation, appointment, and removal of the CCO 
requires the approval of a majority of the ITV Board.\44\ The CCO also 
works directly with the ITV Board in certain instances, for example, 
when resolving conflicts of interest.\45\ 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.\46\
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    \43\ 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.
    \44\ See id.
    \45\ See id.
    \46\ 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.\47\ 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.\48\ The CCO shall determine whether any member of the 
deliberating body is subject to a prohibition under its conflicts of 
interest policies.\49\
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    \47\ See ICE Global Code of Business Conduct, Ex. D.4.
    \48\ See Swap Data Repository Rulebook, Security-Based Swap Data 
Reporting Annex, Ex. HH.1, sec. 2.10.2.
    \49\ See Swap Data Repository Rulebook, Security-Based Swap Data 
Reporting Annex, Ex. HH.2, sec. 2.10.4.
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2. Discussion
    Section 13(n)(7)(B) of the Exchange Act and Rule 13n-4(c)(2) 
thereunder require an SDR to establish governance arrangements that are 
transparent to fulfill public interest requirements and to support the 
objectives of the Federal Government, owners, and participants.\50\ In 
addition, Rule 13n-4(c)(2) requires an SDR to (i) establish well-
defined governance arrangements that include a clear organizational 
structure with effective internal controls; (ii) establish governance 
arrangements that provide for fair representation of market 
participants; (iii) provide representatives of market participants, 
including end-users, with the opportunity to participate in the process 
for nominating directors and with the right to petition for alternative 
candidates; and (iv) establish, maintain, and enforce written policies 
and procedures reasonably designed to ensure that senior management and 
each member of the board or committee that has authority to act on 
behalf of the board possess requisite skills and expertise to fulfill 
their responsibilities in the management and governance of the SDR, 
have a clear understanding of their responsibilities, and exercise 
sound judgment about the SDR's affairs.\51\
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    \50\ 15 U.S.C 78m(n)(7)(B); 17 CFR 240.13n-4(c)(2).
    \51\ 17 CFR 240.13n-4(c)(2)(i)-(iv).
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    Furthermore, Rule 13n-4(b)(11) requires an SDR to designate an 
individual to serve as CCO, and Rule 13n-11(a) requires the SDR to 
identify on Form SDR the person so designated.\52\ Rule 13n-11(a) also 
requires that the compensation, appointment, and removal of the CCO 
shall require approval of a majority of the SDR's board of 
directors.\53\ Rule 13n-11(c) requires the CCO to: (i) Report directly 
to the board of directors or to the senior officer; (ii) review 
compliance with Section 13(n) of the Exchange Act and the rules 
thereunder; (iii) in consultation with the board or the senior officer, 
take reasonable steps to resolve any material conflicts of

[[Page 32706]]

interest; (iv) be responsible for administering the policies and 
procedures required by Section 13(n) of the Exchange Act and the rules 
thereunder; (v) take reasonable steps to ensure compliance with the 
Exchange Act and the SDR Rules thereunder; (vi) establish procedures 
for the remediation of noncompliance; and (vii) establish and follow 
appropriate procedures for the handling, management response, 
remediation, retesting, and closing of noncompliance issues.\54\
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    \52\ 17 CFR 240.13n-4(b), 13n-11(a).
    \53\ 17 CFR 240.13n-11(a).
    \54\ 17 CFR 240.13n-11(c)(1)-(7).
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    Additionally, Section 13(n)(7)(C) of the Exchange Act requires an 
SDR to establish and enforce rules to minimize conflicts of interest in 
the decision-making process of the SDR and establish a process for 
resolving any such conflicts of interest.\55\ Rule 13n-4(c)(3) under 
the Exchange Act provides that an SDR must: (i) Establish, maintain, 
and enforce written policies and procedures reasonably designed to 
identify and mitigate potential and existing conflicts of interest in 
the SDR's decision-making process on an ongoing basis; (ii) with 
respect to the decision-making process for resolving any conflicts of 
interest, require the recusal of any person involved in such conflict 
from such decision-making; and (iii) establish, maintain, and enforce 
written policies and procedures regarding the SDR's non-commercial and/
or commercial use of the SBS transaction information that it 
receives.\56\
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    \55\ 15 U.S.C. 78m(n)(7)(C)(i), (ii).
    \56\ 17 CFR 240.13n-4(c)(3)(i)-(iii).
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    The Commission received no comments applicable to these 
requirements. As described above, the ITV Application includes 
provisions for the representation of market participants in the 
governance arrangements, as well as procedures providing an opportunity 
to participate in the process for nominating directors and the right to 
petition for alternative candidates. In addition, the ITV Application 
includes policies and procedures that set standards for the skills and 
expertise possessed by the ITV Board.
    More generally, the ITV Application sets forth an organizational 
structure that is clear and includes provisions for internal controls. 
The ITV Application includes provisions for a CCO that has been 
designated by the ITV Board and whose compensation, appointment, and 
removal is set by the majority of the ITV Board. In addition, the ITV 
Application includes policies and procedures that require the CCO to 
report to the ITV Board and be responsible for maintaining compliance 
with applicable Commission rules, investigating any suspected 
violations thereof, and overseeing any necessary remediation. The ITV 
Application includes policies and procedures that identify and mitigate 
conflicts of interest, require the recusal from decision-making of 
members of the ITV Board when involved in a conflict, and delineate the 
commercial and non-commercial use of SBS transaction information 
received.

B. Access and Information Security

1. Summary of ICE Trade Vault's Application
    ICE Trade Vault represents that it provides access to its SDR 
service on a fair, open and not unreasonably discriminatory basis.\57\ 
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.\58\ 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).\59\ 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.\60\
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    \57\ 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.
    \58\ 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.'').
    \59\ See Security-Based SDR Service Disclosure Document, Ex. 
V.2, sec. 1; see also ICE Trade Vault User Agreement, Ex. U.2.
    \60\ 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.\61\ 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.\62\ 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.\63\
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    \61\ 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.
    \62\ 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.
    \63\ 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 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).\64\ 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.\65\ If the denial of an application is reversed, the 
applicant will be granted access to ICE Trade Vault promptly following 
completion of onboarding requirements.\66\ 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'').\67\ 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

[[Page 32707]]

business days of such determination prior to implementing any 
revocation of access.\68\ 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.\69\ 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.\70\ 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.\71\
---------------------------------------------------------------------------

    \64\ 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.
    \65\ See id.
    \66\ See id.
    \67\ See Swap Data Repository Rulebook, Security-Based Swap Data 
Reporting Annex, Ex. HH.2, sec. 3.3.
    \68\ See id.
    \69\ See id.
    \70\ See id.
    \71\ 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).
---------------------------------------------------------------------------

    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.\72\ 
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.\73\ 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.\74\
---------------------------------------------------------------------------

    \72\ See Security-Based SDR Service Disclosure Document, Ex. 
V.2, sec. 4.
    \73\ See id.
    \74\ See id.
---------------------------------------------------------------------------

    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.\75\ 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.\76\ 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.\77\ 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.\78\ ICE 
Trade Vault states that it performs network scans and penetration tests 
regularly to ensure the information security systems are performing as 
designed.\79\
---------------------------------------------------------------------------

    \75\ See id.
    \76\ See id.
    \77\ See id.
    \78\ See id.
    \79\ See id.
---------------------------------------------------------------------------

    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.\80\ 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.\81\ 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.\82\
---------------------------------------------------------------------------

    \80\ See id.
    \81\ See id.
    \82\ 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.'').
---------------------------------------------------------------------------

2. Discussion
    Rule 13n-4(c)(1)(ii) under the Exchange Act requires an SDR to 
permit market participants to access specific services offered by the 
SDR separately.\83\ Rule 13n-4(c)(1)(iii) requires an SDR to establish, 
monitor on an ongoing basis, and enforce clearly stated objective 
criteria that would permit fair, open, and not unreasonably 
discriminatory access to services offered and data maintained by the 
SDR.\84\ Rule 13n-4(c)(1)(iv) requires an SDR to establish, maintain, 
and enforce written policies and procedures reasonably designed to 
review any prohibition or limitation of any person with respect to 
access to services offered, directly or indirectly, or data maintained 
by the SDR and to grant such person access to such services or data if 
such person has been discriminated against unfairly.\85\ In addition, 
Rule 13n-6 requires an SDR, with respect to those systems that support 
or are integrally related to the performance of its activities, to 
establish, maintain, and enforce written policies and procedures 
reasonably designed to ensure that its systems provide adequate levels 
of capacity, integrity, resiliency, availability, and security.\86\
---------------------------------------------------------------------------

    \83\ 17 CFR 240.13n-4(c)(1)(ii).
    \84\ 17 CFR 240.13n-4(c)(1)(iii).
    \85\ 17 CFR 240.13n-4(c)(1)(iv).
    \86\ 17 CFR 240.13n-6.
---------------------------------------------------------------------------

    The Commission received no comments applicable to these 
requirements. As described above, the ITV Application includes 
procedures for onboarding and maintaining ongoing access to users that 
are fair, open, reasonable and not unreasonably discriminatory. These 
procedures include user agreements that reflect

[[Page 32708]]

clear and specific minimum standards for users to follow in seeking to 
access SBS data held at the SDR. The ITV Application also includes 
reasonable provisions for limiting, denying, and revoking access to SDR 
systems that include procedures for review and reconsideration of any 
determination related to limiting, denying, or revoking a user's 
access. The Commission believes that the procedures described above 
further help ensure that the access requirements are fair, open, and 
not unreasonably discriminatory. In addition, the ITV Application 
includes policies and procedures designed to ensure that the SDR's 
automated systems maintain adequate levels of capacity, integrity, 
resiliency, availability, and security that protect against loss of 
data, employ geographic diversity in their site selection, and account 
for service disruptions.

C. Acceptance and Use of SBS Data

1. Summary of ICE Trade Vault's Application
    ICE Trade Vault states that it will accept data in respect of all 
SBS trades in the credit derivatives asset class and promptly records 
such data upon receipt.\87\ 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.\88\ 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.\89\ 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.\90\ 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.\91\
---------------------------------------------------------------------------

    \87\ See Swap Data Repository Rulebook, Security-Based Swap Data 
Reporting Annex, Ex. HH.2, sec. 4.1.
    \88\ See Swap Data Repository Rulebook, Security-Based Swap Data 
Reporting Annex, Ex. HH.2, sec. 4.2.1.
    \89\ 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.
    \90\ See id.
    \91\ See id.
---------------------------------------------------------------------------

    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.\92\
---------------------------------------------------------------------------

    \92\ See Swap Data Repository Rulebook, Security-Based Swap Data 
Reporting Annex, Ex. HH.2, sec. 4.5.
---------------------------------------------------------------------------

    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.\93\ ICE Trade Vault 
states that users are responsible for the timely resolution of trade 
record errors and disputes.\94\ ICE Trade Vault provides users 
electronic methods to extract SDR information for trade data 
reconciliation.\95\ Disputes involving clearing transactions shall be 
resolved in accordance with the clearing agency's rules and applicable 
law.\96\ 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.\97\ 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.\98\ 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.\99\ 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.\100\ ICE Trade Vault will 
disseminate a corrected transaction report in instances where the 
initial report included erroneous primary trade information.\101\ 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.\102\ ICE Trade Vault will provide regulators with reports 
identifying the SDR information that is deemed disputed.\103\
---------------------------------------------------------------------------

    \93\ See Security-Based SDR Service Disclosure Document, Ex. 
V.2, sec. 6.
    \94\ See id.; see also Swap Data Repository Rulebook, Security-
Based Swap Data Reporting Annex, Ex. HH.2, sec. 4.6 and 4.7.
    \95\ 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.
    \96\ 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.
    \97\ See id.
    \98\ 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.
    \99\ 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.
    \100\ 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.
    \101\ See id.
    \102\ See id.; see also Swap Data Repository Rulebook, Security-
Based Swap Data Reporting Annex, Ex. HH.2, sec. 4.7.
    \103\ 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.
---------------------------------------------------------------------------

2. Discussion
    Rule 13n-5(b)(1)(i) under the Exchange Act requires an SDR to 
establish, maintain, and enforce written policies and procedures 
reasonably designed for the reporting of complete and accurate 
transaction data to the SDR and to accept all transaction data that is 
reported in accordance with such policies and procedures.\104\ 
Additionally, Rule 13n-5(b)(1)(ii) requires that if an SDR accepts any 
SBS transaction in a particular asset class, the SDR must accept all 
SBS transactions in that asset class that are reported to it in 
accordance with its policies and procedures.\105\ In addition,

[[Page 32709]]

Rule 13n-5(b)(3) requires an SDR to establish, maintain, and enforce 
written policies and procedures reasonably designed to ensure that the 
transaction data and positions that it maintains are complete and 
accurate.\106\ Rule 13n-5(b)(5) requires an SDR to establish, maintain, 
and enforce written policies and procedures reasonably designed to 
prevent any provision in a valid SBS transaction from being invalidated 
or modified through the procedures or operations of the SDR.\107\ Rule 
13n-5(b)(6) requires an SDR to establish procedures and provide 
facilities reasonably designed to effectively resolve disputes over the 
accuracy of the transaction data and positions that are recorded in the 
SDR.\108\
---------------------------------------------------------------------------

    \104\ 17 CFR 240.13n-5(b)(1)(i).
    \105\ 17 CFR 240.13n-5(b)(1)(ii).
    \106\ 17 CFR 240.13n-5(b)(3).
    \107\ 17 CFR 240.13n-5(b)(5).
    \108\ 17 CFR 240.13n-5(b)(6).
---------------------------------------------------------------------------

    Furthermore, Section 13(n)(5)(F) of the Exchange Act and Rule 13n-
4(b)(8) thereunder each require an SDR to maintain the privacy of any 
and all SBS transaction information that the SDR receives.\109\ In 
addition, Rule 13n-9(b)(1) requires an SDR to establish, maintain, and 
enforce written policies and procedures reasonably designed to protect 
the privacy of any and all SBS transaction information that the SDR 
receives and that include policies and procedures to protect the 
privacy of any and all SBS transaction information that the SDR shares 
with affiliates and non-affiliated third parties.\110\ Rule 13n-9(b)(2) 
also requires an SDR to establish, and maintain safeguards, policies, 
and procedures reasonably designed to prevent the misappropriation or 
misuse, directly or indirectly, of any confidential information 
received by the SDR, material non-public information, or intellectual 
property, such as trading strategies or portfolio positions, by: (i) 
Limiting access to such information and intellectual property; (ii) 
having standards for trading by persons associated with the SDR for 
their personal benefit or the benefit of others; and (iii) having 
adequate oversight to ensure compliance with these safeguards, 
policies, and procedures.\111\
---------------------------------------------------------------------------

    \109\ See 15 U.S.C. 78m(n)(5)(F); 17 CFR 240.13n-4(b)(8), 
240.13n-9.
    \110\ 17 CFR 240.13n-9.
    \111\ See 17 CFR 240.13n-9(b)(2).
---------------------------------------------------------------------------

    The Commission received no comments applicable to these 
requirements. As described above, the ITV Application includes policies 
and procedures designed to protect transaction data and its systems by 
restricting access to users, who are obligated to comport with ICE 
Trade Vault's rules in a manner that facilitates ICE Trade Vault's 
compliance with its obligations under Commission rules. The Commission 
views this approach as reasonable. Access to ICE Trade Vault's systems 
to view trade data or verify information should be conditioned such 
that ICE Trade Vault retains the ability to protect the data, its 
systems, and its users. The Commission notes that ICE Trade Vault 
retains the responsibility, among other things, to ensure that its 
policies and procedures are reasonably designed to: (i) Ensure trade 
data reported to it is complete and accurate, as required under Rule 
13n-5(b)(1); (ii) ensure that its systems provide adequate levels of 
capacity, integrity, resiliency, availability and security, as required 
under Rule 13n-6; and (iii) ensure that it protects the privacy and 
confidentiality of transaction information, as required under Rule 13n-
9(b). Additionally, the ITV Application includes procedures designed to 
ensure that any valid provisions of trade information are not modified 
or invalidated, and these procedures include controls that are 
regularly audited and processing systems designed to prevent 
unauthorized changes to SBS information. The Commission also believes 
that ICE Trade Vault provides procedures and facilities reasonably 
designed to effectively resolve disputes over the accuracy of the 
transaction data and positions that are recorded in the SDR.
    Furthermore, the ITV Application contains policies and procedures 
regarding both data security and the privacy of SBS data, the latter of 
which includes in each case procedures limiting access to SBS data to 
employees with either direct or support responsibilities related to 
systems that maintain the data, and that limit the use of such data in 
all cases to the performance of job responsibilities. The Commission 
believes that such policies and procedures also establish a standard 
for the trading practices of personnel that prevents the use of the 
data for personal benefit or the benefit of others. In addition, ICE 
Trade Vault has policies and procedures that, when taken together with 
policies and procedures regarding the duties of the CCO,\112\ are 
reasonably designed to protect the privacy of SBS transaction 
information, including information shared with affiliates and third 
parties, through adequate oversight to ensure compliance with the 
policies and procedures described above.
---------------------------------------------------------------------------

    \112\ See supra Part III.A (describing policies and procedures 
regarding the CCO and conflicts of interest).
---------------------------------------------------------------------------

D. Fees

1. Summary of ICE Trade Vault's Application
    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.\113\ 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.\114\
---------------------------------------------------------------------------

    \113\ 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.'')
    \114\ See ICE Trade Vault Security-Based Swap Data Repository 
Service and Pricing Schedule, Ex. M.2.
---------------------------------------------------------------------------

    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.\115\ 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.\116\ 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 funds are not charged a fee.\117\ 
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.\118\ 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

[[Page 32710]]

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.\119\ 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.\120\ 
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.\121\
---------------------------------------------------------------------------

    \115\ See Dues, Fees and Charges, Ex. M.1.
    \116\ See id.
    \117\ See id.
    \118\ See id.
    \119\ See id.
    \120\ See id.
    \121\ See id.
---------------------------------------------------------------------------

    ICE Trade Vault will assess a Repository Fee upon its acceptance of 
any trade message for an SBS transaction.\122\ 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.
---------------------------------------------------------------------------

    \122\ 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.\123\ 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.
---------------------------------------------------------------------------

    \123\ See id.
---------------------------------------------------------------------------

    For transactions submitted directly by a counterparty user, the 
minimum monthly invoice per user will be $375.\124\ 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.
---------------------------------------------------------------------------

    \124\ See id.
---------------------------------------------------------------------------

    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).\125\ 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.
---------------------------------------------------------------------------

    \125\ See id.
---------------------------------------------------------------------------

    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.\126\ 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.
---------------------------------------------------------------------------

    \126\ See id.
---------------------------------------------------------------------------

2. Discussion
    Section 13(n)(7)(A) of the Exchange Act prohibits an SDR (unless 
necessary or appropriate to achieve the purposes of the Exchange Act) 
from: (i) Adopting any rule or taking any action that results in any 
unreasonable restraint of trade; or (ii) imposing any material anti-
competitive burden on the trading, clearing, or reporting of 
transactions.\127\ Rule 13n-4(c)(1)(i) under the Exchange Act also 
requires an SDR to ensure that any dues, fees, or other charges that it 
imposes, and any discounts or rebates that it offers, are fair and 
reasonable and not unreasonably discriminatory.\128\ It also requires 
that such dues, fees, other charges, discounts, or rebates be applied 
consistently across all similarly situated users of the SDR's 
services.\129\ In discussing the fee provisions of the SDR Rules, the 
Commission stated that it would take a flexible approach in evaluating 
the fairness and reasonableness of an SDR's fees and charges on a case-
by-case basis, recognizing that there may be instances in which an SDR 
could charge different users different prices for the same or similar 
services.\130\
---------------------------------------------------------------------------

    \127\ 15 U.S.C. 78m(n)(7)(A).
    \128\ 17 CFR 240.13n-3(c)(1)(i).
    \129\ Id.
    \130\ See SDR Adopting Release, supra note 7, at 14479. In 
making this statement, however, the Commission also noted that 
charging different users different prices for the same or similar 
services cannot be unreasonably discriminatory.
---------------------------------------------------------------------------

    The Commission received no comments applicable to these 
requirements. ICE Trade Vault states that all of the fees it charges, 
including the Repository Fee, 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 ICE Trade Vault 
expects to receive as an SDR. The fees include a fixed component and a 
variable component that increases with the usage of SDR services. Such 
a fee structure is generally in line with the economics of 
recordkeeping services for security-based swaps, which involve a fixed 
cost investment and marginal costs of operation.\131\ In addition, ICE 
Trade Vault's approach to fees would be consistent across CFTC and 
Commission reporting requirements, and, as a general matter, the 
Commission believes it is reasonable for ICE Trade Vault to establish 
similar fees where its

[[Page 32711]]

obligations require similar levels of services and infrastructure.
---------------------------------------------------------------------------

    \131\ See generally Regulation SBSR Adopting Release, 81 FR at 
53551 (stating that the provision of recordkeeping services for 
security-based swaps involves a predominantly fixed cost investment 
with low marginal costs of operation).
---------------------------------------------------------------------------

    With respect to the specific elements of ICE Trade Vault's fee 
structure, the Commission notes the following. First, the fixed 
component of ICE Trade Vault's fees would be consistent with the 
applicant recovering the fixed costs investment associated with setting 
up and maintaining a user account, while the variable component would 
be consistent with the applicant recovering marginal costs of 
operation, i.e., costs that increase with the provision of SDR services 
to the user. Second, the Commission believes that the lower minimum 
maintenance fee that ICE Trade Vault imposes on third party reporters 
is consistent with third party reporters and their non-user clients 
placing a lower burden on ICE Trade Vault's staff, resources, and 
systems. Non-users would not require ICE Trade Vault to incur 
onboarding costs and costs associated with the maintenance of user 
accounts. To the extent that third party reporters are more efficient 
users of ICE Trade Vault's reporting infrastructure than other 
categories of users, ICE Trade Vault could anticipate lower costs 
associated with trade messages reported by third party reporters on 
behalf of their non-User clients.
    Third, the Commission believes the differentiation in fees between 
third party reporters and execution agents is consistent with ICE Trade 
Vault's approach of attributing fees to entities that are directly 
involved in trade execution and is fair, reasonable, and not 
unreasonably discriminatory.\132\ In the case of an execution agent, 
ICE Trade Vault states that such an entity is directly involved in the 
execution of the transaction reported to ICE Trade Vault. As such, the 
execution agent is directly assessed fees as any other entity that is 
directly involved in the execution of a transaction, whereas the 
underlying funds are not charged a fee. In contrast, a third party 
reporter is not directly involved with the execution of the reported 
transaction and simply provides a service to counterparties that are 
directly involved with execution of the reported transaction and also 
have an obligation to report. Therefore, ICE Trade Vault assesses a fee 
to a third party reporter for each of the underlying reporting parties 
on whose behalf the third party reporter reports the trades to ICE 
Trade Vault. ICE Trade Vault further states that it will create an 
invoice for each of underlying reporting party as if the underlying 
reporting party were a user. The Commission understands that such an 
arrangement allows ICE Trade Vault to collect fees from the underlying 
reporting parties.\133\
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    \132\ For example, the minimum monthly fee due from a third 
party reporter submitting data for two accounts would be $400, while 
the minimum due from an execution agent submitting data for two 
accounts would be $375.
    \133\ See ITV Pricing Schedule, Ex. M.1.
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    Fourth, the Commission believes that the fees that ICE Trade Vault 
charges a clearing agency, while different than those imposed on other 
types of users, are fair, reasonable, and not unreasonably 
discriminatory. Because of their central role in many security-based 
swap transactions and their provision of netting and compression 
services to members clearing agency users are directly involved in, and 
report a significant number of security-based swaps.\134\ To support 
this category of users, ICE Trade Vault has to incur additional costs 
to handle large volumes of transactions generated over a short period 
of time.
---------------------------------------------------------------------------

    \134\ See Regulation SBSR Adopting Release, 81 FR at 53630 (the 
Commission estimating that there will be approximately 760,000 
reportable events per year that are clearing transactions or life 
cycle events associated with clearing transactions).
---------------------------------------------------------------------------

    Taking into account the above, the Commission believes that the ITV 
Application sets fees at levels that are fair and reasonable and not 
unreasonably discriminatory.

E. Recordkeeping

1. Summary of ICE Trade Vault's Application
    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.\135\ 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.\136\ 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).\137\ 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.\138\ According to ICE Trade Vault, users 
will retain unimpaired access to their online and archived trade 
data.\139\ 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 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.\140\ 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.\141\
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    \135\ 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.
    \136\ 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.
    \137\ See Security-Based SDR Service Disclosure Document, Ex. 
V.2, sec. 3.
    \138\ See Security-Based SDR Service Disclosure Document, Ex. 
V.2, sec. 3.
    \139\ See id.
    \140\ See id.; see also Swap Data Repository Rulebook, Security-
Based Swap Data Reporting Annex, Ex. HH.2, sec. 7.1.
    \141\ See id.
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2. Discussion
    Rule 13n-5(b)(4) of the Exchange Act requires an SDR to maintain 
transaction data and related identifying information for not less than 
five years after the SBS expires and historical positions for not less 
than five years in a place and format that is readily accessible and 
usable to the Commission and other persons with authority to access or 
view such information and in an electronic format that is non-
rewriteable and non-erasable.\142\ Rule 13n-7 requires an SDR to make 
and keep current books and records relating to its business for at 
least five years, and for the first two years, keep such records in a 
place that is immediately available to representatives of the 
Commission for inspection and examination.\143\ In addition, Rule 13n-
5(b)(8) requires an SDR to make and keep current a plan to ensure that 
the transaction data and

[[Page 32712]]

positions that are recorded in the SDR continue to be maintained in 
accordance with Rule 13n-5(b)(7),\144\ including procedures for 
transferring the transaction data and positions to the Commission or 
its designee.\145\
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    \142\ 17 CFR 240.13n-5(b)(4).
    \143\ 17 CFR 240.13n-7.
    \144\ Rule 13n-5(b)(7) states that, if an SDR ceases doing 
business or ceases to be registered pursuant to Section 13(n) of the 
Exchange Act, the SDR must continue to preserve, maintain, and make 
accessible the transaction data and historical positions required to 
be collected, maintained, and preserved by this section in the 
manner required by the Exchange Act and the rules and regulations 
thereunder and for the remainder of the period required by this 
section. 17 CFR 240.13n-5(b)(7).
    \145\ 17 CFR 240.13n-8.
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    The Commission received no comments applicable to these 
requirements. As described above, the ITV Application provides for the 
recordkeeping of SBS transaction data for at least five years following 
the termination of the transaction,\146\ and will be readily accessible 
throughout the life of a security-based swap in an electronic format 
that is non-rewriteable and non-erasable.\147\ In addition, ICE Trade 
Vault provides for the transferring of transaction data and positions 
to the Commission via reports designed to provide visibility into 
positions and the status of submitted trades and also provides for 
direct electronic access to data reported to ICE Trade Vault in 
satisfaction of the Commission's regulatory requirements both for the 
Commission and, where such access is permitted by applicable law and 
any relevant Memorandum of Understanding or other arrangement, the 
Commission's designee.
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    \146\ See Security-Based SDR Service Disclosure Document, Ex. 
V.2, sec. 3.
    \147\ See id.
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F. Disclosure

1. Summary of ICE Trade Vault's Application
    ICE Trade Vault publishes a disclosure document to provide a 
summary of information regarding its service offerings and the SBS data 
it maintains.\148\ 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.\149\
---------------------------------------------------------------------------

    \148\ See Security-Based SDR Service Disclosure Document, Ex. 
V.2.
    \149\ See id.
---------------------------------------------------------------------------

2. Discussion
    Rule 13n-10 under the Exchange Act requires that, before accepting 
any SBS data from a market participant or upon a market participant's 
request, an SDR shall furnish to the market participant a disclosure 
document that contains certain written information, which must 
reasonably enable the market participant to identify and evaluate 
accurately the risks and costs associated with using the SDR's 
services.\150\ This written information must contain the following: (i) 
The SDR's criteria for providing others with access to the services 
offered and data it maintains; (ii) its criteria for those seeking to 
connect to or link with the SDR; (iii) a description of its policies 
and procedures regarding its safeguarding of data and operational 
reliability, as described in Rule 13n-6; (iv) a description of its 
policies and procedures reasonably designed to protect the privacy of 
SBS transaction information that it receives, as described in Rule 13n-
9(b)(1); (v) a description of its policies and procedures regarding its 
noncommercial and commercial use of SBS transaction information that it 
receives, as described in Rule 13n-5(b)(6); (vi) a description of its 
dispute resolution procedures, as described in Rule 13n-5(b)(6); (vii) 
a description of all the SDR's services, including any ancillary 
services; and (viii) the SDR's updated schedule of any dues; unbundled 
prices, rates or other fees for all of its services, including 
ancillary services; any discounts or rebates offered; and the criteria 
to benefit from such discounts or rebates; and (ix) a description of 
its governance arrangements.\151\
---------------------------------------------------------------------------

    \150\ 17 CFR 240.13n-10.
    \151\ See id.
---------------------------------------------------------------------------

    The Commission received no comments applicable to these 
requirements. As described throughout this order, the ITV Application 
includes extensive discussion of ICE Trade Vault's policies and 
procedures with respect to access,\152\ the use of SBS transaction 
information,\153\ service offerings, including ancillary services,\154\ 
and governance arrangements.\155\ The Commission believes that ICE 
Trade Vault's Disclosure Document presents a reasonably comprehensive 
view of the applicant's overall service offering, from which a 
potential user could identify and evaluate accurately the risks and 
costs associated with using the SDR's services.\156\ In addition, 
regarding the requirement to furnish the document to market 
participants, the Commission understands that ICE Trade Vault publishes 
similar disclosure documents on its website,\157\ and anticipates the 
same for ICE Trade Vault's Disclosure Document relevant to this 
application.
---------------------------------------------------------------------------

    \152\ See supra Part III.B (describing policies and procedures 
with respect to access and information security).
    \153\ See supra Part III.C (describing policies and procedures 
with respect to acceptance and use of SBS data).
    \154\ See supra Part III.D (describing policies and procedures 
with respect to fees).
    \155\ See supra Part III.A (describing policies and procedures 
with respect to governance arrangements, the duties of the CCO, and 
conflicts of interest).
    \156\ See Security-Based SDR Service Disclosure Document, Ex. 
V.2.
    \157\ See, e.g., https://www.theice.com/publicdocs/ICE_Trade_Vault_Disclosure_Document.pdf (publishing a disclosure 
document pursuant to CFTC requirements).
---------------------------------------------------------------------------

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.\158\ 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.\159\ 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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    \158\ See supra note 30 and accompanying text.
    \159\ However, the ITV 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 ITV 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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    In the no-action statement, the Commission stated that an applicant 
``will not need to include materials in its application explaining how 
it would comply with the provisions [specifically noted as not 
providing a basis for a Commission enforcement action during

[[Page 32713]]

the pendency of the statement].'' \160\ The applicant ``could instead 
rely on its discussion about how it complies with comparable CFTC 
requirements.'' \161\ In its application, ICE Trade Vault provided 
exhibits that adapted its policies and procedures for regulatory 
reporting and public dissemination of swaps for use in the SBS market. 
The Commission believes that, with respect to its role in the 
regulatory reporting and public dissemination of SBS transactions, ICE 
Trade Vault has satisfied the approach described by the Commission in 
the no-action statement regarding the information and representations 
sufficient to support its approval for registration as an SDR and 
SIP.\162\
---------------------------------------------------------------------------

    \160\ ANE Adopting Release, supra note 12, at 6348.
    \161\ Id.
    \162\ Because ICE Trade Vault has elected to rely on the no-
action statement, see supra note 30, the Commission has not 
evaluated the ITV Application against any provisions of Regulation 
SBSR specifically noted as not providing a basis for a Commission 
enforcement action during the pendency of the statement.
---------------------------------------------------------------------------

    ISDA Letter II raised several issues with respect to the ITV 
Application. First, ISDA stated that there are challenges associated 
with ICE TV's requirements for reporting a counterparty identity when 
the counterparty does not have a legal entity identifier (``LEI'') and 
suggested that ICE Trade Vault instead follow the approach set out in 
the DDR Rulebook.\163\ In addition, ISDA recommended that ICE Trade 
Vault make a minor adjustment to the boolean indicator for the 
``Package Trade Flag.'' \164\ These scenarios can arise in the 
reporting of a swap transaction under the CFTC reporting rules 
currently, and ICE Trade Vault has represented that it is in compliance 
with applicable CFTC requirements 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. Therefore, these comments do not preclude the Commission's 
approval of ICE Trade Vault's application to register as an SDR and as 
a SIP.
---------------------------------------------------------------------------

    \163\ See ISDA Letter II at 2-3.
    \164\ See id. at 4.
---------------------------------------------------------------------------

    In addition, ISDA stated that the ITV Rulebook should ``discuss 
`Counterparty 2' identifiers that will be permitted under the new 
[CFTC] swap data reporting rules.'' \165\ To the extent that this 
suggestion involves changes to ICE Trade Vault's systems, policies, and 
procedures for complying with future CFTC requirements, they are not 
part of ICE Trade Vault's existing systems, policies, and procedures 
and thus are not germane to the application being considered by the 
Commission. However, the Commission expects that ICE Trade Vault will, 
in the future, explain to its participants how changes made to the 
systems, policies, and procedures for complying with CFTC swap data 
reporting requirements will impact the reporting of security-based swap 
transactions.
---------------------------------------------------------------------------

    \165\ Id. at 3. The comment refers to revisions to Parts 43 and 
45 adopted by the CFTC in September 2020, which include requirements 
for reporting new data elements as well as changes to how existing 
data elements should be reported. See Part 43 revisions, available 
at: www.cftc.gov/sites/default/files/2020/11/2020-21568a.pdf; Part 
45 revisions, available at: www.cftc.gov/sites/default/files/2020/11/2020-21569a.pdf.
---------------------------------------------------------------------------

    ISDA also recommended that unique identification codes generated by 
ICE Trade Vault be 52 rather than 54 characters in length, to align 
with the global standard for unique transaction identifiers (``UTIs''), 
which are 52 characters in length.\166\ Although the Commission 
anticipates that ICE Trade Vault will utilize the global UTI system 
when implemented, implementation has not yet occurred. Therefore, this 
comment does not preclude the Commission's approval of ICE Trade 
Vault's application to register as an SDR and as a SIP.
---------------------------------------------------------------------------

    \166\ See ISDA Letter II at 3.
---------------------------------------------------------------------------

    Furthermore, ISDA recommended that, until the global standard for 
unique product identifiers (``UPIs'') comes into effect, ICE Trade 
Vault utilize the ISDA Taxonomy for product identifiers rather than ICE 
Trade Vault's own product taxonomy.\167\ The UPI system, like the UTI 
system, is not yet in effect. In the absence of an internationally 
recognized system, ICE Trade Vault may assign product identifiers using 
its own policies and procedures. Therefore, this comment does not 
preclude the Commission's approval of ICE Trade Vault's application to 
register as an SDR and as a SIP.
---------------------------------------------------------------------------

    \167\ See id. at 3-4.
---------------------------------------------------------------------------

    ISDA also contested the requirement in ITV Rulebook to report ``Not 
Applicable'' where a data field is not applicable for a historical 
security-based swap transaction or ``an exotic SBS submission.'' \168\ 
Nothing in Regulation SBSR prohibits a registered SDR from requiring a 
reporting person to submit an affirmative response of ``Not Available'' 
instead of leaving a data field blank. This approach allows the 
registered SDR and the Commission to differentiate between a 
circumstance where the data element is truly ``Not Available'' from a 
circumstance where the reporting person has inappropriately failed to 
report the data element.
---------------------------------------------------------------------------

    \168\ See id. at 4.
---------------------------------------------------------------------------

    Finally, ISDA noted that, although the specifications in the ITV 
Rulebook ``technically align'' with the SEC requirement that an SDR 
publicly disseminate immediately upon receipt, SDRs are also built to 
delay public dissemination under CFTC requirements. ISDA suggested that 
complying with the SEC requirement would require SDRs to incur the cost 
of adding functionality to disseminate immediately under Regulation 
SBSR, and ISDA therefore requests that the SEC align its requirement 
with the CFTC requirement.\169\ To the extent that ISDA is requesting 
that the Commission modify the no-action statement in response to 
ISDA's comment, the Commission declines to do so. Furthermore, because 
this comment pertains to a Commission position and not to the ICE Trade 
Vault Application, it does not affect the Commission's review of the 
ICE Trade Vault Application under the relevant statutory standards for 
registration as an SDR and as a SIP.\170\
---------------------------------------------------------------------------

    \169\ See id. at 5.
    \170\ Under the CFTC's reporting rules, an SDR must publicly 
disseminate swap transaction and pricing data as soon as 
technologically practicable after such data is received, unless such 
swap transaction and pricing data is subject to a time delay 
described in Sec.  43.5, in which case the swap transaction and 
pricing data shall be publicly disseminated in the manner described 
in Sec.  43.5. See 17 CFR 43.3(b)(1). In addition, Appendix C to 
Part 43 provides clarification of the time delays for public 
dissemination set forth in Sec.  43.5. An SDR subject to the CFTC's 
Part 43 rules must disseminate transaction and pricing data with a 
time delay if the transaction falls within Sec.  43.5, and must 
disseminate transaction and pricing data ``as soon as 
technologically practicable'' if it does not. The Commission's no-
action statement recognized that security-based swap transactions do 
not fall within Sec.  43.5 or Appendix C of Part 43. See ANE 
Adopting Release, supra note 12, at 6347. Accordingly, an SDR, when 
utilizing CFTC rather than SEC protocols for dissemination of a 
security-based swap transaction, would not impose the time delay 
required for a swap transaction that falls within Sec.  43.5. 
Nevertheless, to offer some accommodation for certain large-sized 
security-based swaps based on a single credit instrument or a 
narrow-based index of credit instruments, the Commission established 
a size cap of ``$5MM+'' for any transaction having a true notional 
size of $5 million or greater. As explained in the Commission's no-
action statement, this cap is also applied by the Financial Industry 
Regulatory Authority when disseminating transaction reports of 
economically similar cash debt securities. See id. at 6347, n.768.
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IV. Evaluation of ICE Trade Vault's Application and Commission Findings

    Consistent with the standard for registration previously described 
in Part II.B,\171\ the Commission has considered whether ICE Trade 
Vault is so organized, and has the capacity, to be

[[Page 32714]]

able to assure the prompt, accurate, and reliable performance of its 
functions as an SDR, comply with any applicable provisions of the 
securities laws and the rules and regulations thereunder, and 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. The 
Commission finds that ICE Trade Vault meets these criteria for 
registration as an SDR for the reasons described throughout this order.
---------------------------------------------------------------------------

    \171\ See supra notes 15-17 and accompanying text.
---------------------------------------------------------------------------

    To evaluate ICE Trade Vault's application to register as a SIP, and 
consistent with the standard for registration previously described in 
Part II.B,\172\ the Commission has considered whether ICE Trade Vault 
is so organized, and has the capacity, to be able to assure the prompt, 
accurate, and reliable performance of its functions as a SIP, 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. The Commission 
finds that ICE Trade Vault meets these criteria for registration as a 
SIP for the reasons described throughout this order.
---------------------------------------------------------------------------

    \172\ See supra note 19 and accompanying text.
---------------------------------------------------------------------------

V. Conclusion

    For the reasons discussed above, the Commission finds that ICE 
Trade Vault meets the applicable requirements for registration as an 
SDR, including those standards set forth in Section 13(n) of the 
Exchange Act and Commission rules and regulations thereunder, and the 
applicable requirements for registration as a SIP under Section 11A(b) 
of the Exchange Act.
    It is hereby ordered that the application for registration as a 
security-based swap data repository and a securities information 
processor filed by ICE Trade Vault, LLC (File No. SBSDR-2021-01) 
pursuant to Sections 13(n) and 11A(b) of the Exchange Act be, and 
hereby is, approved.

    By the Commission.
J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2021-13140 Filed 6-21-21; 8:45 am]
BILLING CODE 8011-01-P