2016-03064
[Federal Register Volume 81, Number 30 (Tuesday, February 16, 2016)]
[Notices]
[Pages 7762-7765]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-03064]
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COMMODITY FUTURES TRADING COMMISSION
Order Authorizing the National Futures Association as a
Commission Designee for Direct Electronic Access to Data in Swap Data
Repositories
AGENCY: Commodity Futures Trading Commission.
ACTION: Notice and order.
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SUMMARY: The Commodity Futures Trading Commission (``Commission'') is
issuing an order (``Order'') authorizing the National Futures
Association (``NFA'') as a Commission designee to receive direct
electronic access to data maintained in swap data repositories
(``SDRs'') registered with the Commission. The Commission is authorized
to designate persons to receive direct electronic access to SDR data
pursuant to Section 21(c)(4)(A) of the Commodity Exchange Act
(``CEA''). NFA is registered with the Commission as a registered
futures association (``RFA'') pursuant to Section 17 of the CEA. Direct
access to SDR data will facilitate NFA's performance of functions
delegated to NFA by the Commission, as well as the performance of other
duties authorized by the CEA and the Commission. As a condition to
authorizing NFA as a Commission designee, NFA is required to keep all
non-public information received through direct electronic access to SDR
data confidential and to refer any request for such data to the
Commission for handling.
DATES: Effective date: February 16, 2016.
FOR FURTHER INFORMATION CONTACT: Eileen T. Flaherty, Director, 202-418-
5326, [email protected], or Frank Fisanich, Chief Counsel, 202-418-
5949, [email protected], Division of Swap Dealer and Intermediary
Oversight, Commodity Futures Trading Commission, Three Lafayette
Centre, 1155 21st Street NW., Washington, DC 20581.
SUPPLEMENTARY INFORMATION:
I. Authority and Background
Title VII of the Dodd-Frank Wall Street Reform and Consumer
Protection Act \1\ amended the CEA \2\ to establish a comprehensive new
regulatory framework for swaps. Amendments to the CEA included the
addition of provisions requiring the retention, and the reporting to
Commission-registered SDRs, of data regarding swap transactions in
order to enhance transparency, promote standardization, and reduce
systemic risk. Such amendments also included certain core principles
governing the operations of SDRs. Pursuant to these newly added
provisions, the Commission adopted certain SDR registration
requirements and provisions implementing core principles in part 49 of
its regulations,\3\ and adopted rules for the reporting of swap
transaction data to registered SDRs in parts 45 and 46 of its
regulations.\4\
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\1\ Public Law 111-203, 124 Stat. 1376 (2010).
\2\ 7 U.S.C. 1 et seq.
\3\ See Swap Data Repositories: Registration Standards, Duties
and Core Principles, 76 FR 54538 (Sept. 1, 2011).
\4\ Swap Data Recordkeeping and Reporting Requirements, 77 FR
2136 (Jan. 13, 2012).
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Section 21(c) of the CEA sets forth the duties of a registered SDR.
Among them is the duty to provide direct electronic access to the
Commission (or any designee of the Commission).\5\ ``Direct electronic
access'' is defined in Commission regulation 49.17(b)(3) as ``an
electronic system, platform or framework that provides internet or web-
based access to real-time swap transaction data and also provides
scheduled data transfers to the Commission's electronic systems.'' \6\
As used herein, ``direct electronic access to SDR data'' means ``an
electronic system, platform, or framework that provides internet or
web-based access to real-time swap transaction data and/or swap
transaction data transfers.''
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\5\ See Section 21(c)(4)(A) of the CEA, 7 U.S.C. 24a(c)(4)(A).
\6\ 17 CFR 49.17(b)(3).
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As the Commission stated in adopting the SDR registration
requirements, direct electronic access by the Commission is a critical
function and responsibility of an SDR because real-time access to swap
data is necessary for adequate oversight and surveillance of the swaps
market.\7\ The Commission implemented the access requirements for
Commission designees under Section 21(c)(4)(A) of the CEA by adopting
Commission regulation 49.17(c)(1).
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\7\ See Swap Data Repositories: Registration Standards, Duties
and Core Principles, 76 FR 54538, 54551-52 (Sept. 1, 2011).
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Pursuant to Commission regulation 170.1, a basic purpose of an RFA
is to regulate the practices of its members.\8\ In order to help NFA
achieve this purpose and strengthen its regulatory oversight of its
members, including registered swap dealers (``SDs'') and major swap
participants (``MSPs''), NFA has requested direct electronic access to
all SDRs.
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\8\ 17 CFR 170.1.
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II. Use of SDR Data
NFA is the only futures association registered with the Commission
pursuant to Section 17 of the CEA and
[[Page 7763]]
the Commission, as detailed below, has over decades delegated many
Commission functions to NFA.\9\ Pursuant to Section 8a(10) of the
CEA,\10\ the Commission may authorize any person--including an RFA--to
perform any of the registration functions under the CEA. Further,
pursuant to Section 17(o) of the CEA,\11\ the Commission may require an
RFA to perform registration functions under the CEA with respect to its
members. The Commission has previously authorized NFA to perform the
full range of registration functions with regard to applicants for
Commission registration and Commission registrants, including
registration of SDs and MSPs.\12\ Additionally, pursuant to Sections
4p, 8a, and 17 of the CEA, the Commission issued Commission regulation
170.16 requiring each registered SD and MSP to become and remain a
member of an RFA. As the only RFA, all registered SDs and MSPs are
members of NFA.
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\9\ 7 U.S.C. 21.
\10\ 7 U.S.C. 12a(10).
\11\ 7 U.S.C. 21(o).
\12\ See e.g., Performance of Registration Functions by National
Futures Association, 49 FR 39593 (Oct. 9, 1984); 50 FR 34885 (Aug.
28, 1985); 51 FR 34490 (Sept. 29, 1986); Performance of Registration
Processing Functions by National Futures Association With Respect to
Floor Traders and Floor Brokers, 58 FR 19657 (Apr. 15, 1993);
Performance of Certain Functions by National Futures Association
With Respect to Non-U.S. Firms and Non-U.S. Markets, 62 FR 47792
(Sept. 11, 1997); Performance of Certain Functions by National
Futures Association with Respect to Commodity Pool Operators and
Commodity Trading Advisors, 62 FR 52088 (Oct. 6, 1997); Performance
of Registration Functions by National Futures Association With
Respect to Swap Dealers and Major Swap Participants 77 FR 2708 (Jan.
19, 2012).
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Other Commission functions delegated to NFA include: Reviewing
disclosure documents and providing the Commission with related
summaries and periodic reports; \13\ and acting as the Commission's
official custodian of records.\14\ The Commission has found that NFA
exercises its delegated authority with proficiency.\15\
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\13\ See 62 FR 52088 (Oct. 6, 1997); 64 FR 29273 (June 1, 1999).
\14\ See, e.g., 49 FR 39593 (Oct. 9, 1984) (regarding the
registration records of future commission merchants, commodity pool
operators, and commodity trading advisors); 66 FR 43227 (Aug. 17,
2001) (regarding notice registration filings as futures commission
merchants or introducing brokers); 67 FR 77470 (Dec. 18, 2002)
(regarding commodity pool operator annual financial reports required
by regulation 4.22 and 4.7(b)(3)); 75 FR 55310 (Sep. 10, 2010)
(regarding the registration records of retail foreign exchange
dealers); and 77 FR 2708 (Jan. 19, 2012) (regarding registration
records of swap dealers and major swap participants).
\15\ See, e.g., 67 FR 77470 (Dec. 18, 2002).
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In addition to performing functions delegated by the Commission,
Section 17(p)(2) of the CEA requires an RFA to establish minimum
capital, segregation, and other financial requirements applicable to
its members for which such requirements are imposed by the Commission
and implement a program to audit and enforce compliance with such
requirements, except that such requirements may not be less stringent
than those imposed on such firms by the CEA or by Commission
regulation.\16\
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\16\ 7 U.S.C. 21(p)(2).
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Pursuant to such requirement, where the Commission has imposed
minimum financial requirements for its registrants, NFA has established
minimum financial requirements for such registrants that are members of
NFA that are no less stringent than those imposed by Commission
regulations.\17\ All NFA rules and rule amendments are submitted to the
Commission for review and approval, as required by Section 17(j) of the
CEA.
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\17\ NFA's financial requirements for its members are contained
in the NFA Manual, available on its Web site: http://www.nfa.futures.org/nfamanual/NFAManualTOC.aspx?Section=7. With
respect to minimum financial requirements for SDs and MSPs, the
Commission has proposed capital rules. See Capital Requirements of
Swap Dealers and Major Swap Participants, 76 FR 27802 (May 12,
2011). In addition, the Commission has recently promulgated margin
requirements for SDs and MSPs. See Margin Requirements for Uncleared
Swaps for Swap Dealers and Major Swap Participants, 81 FR 636 (Jan.
6, 2016). NFA will in due course establish minimum financial
requirements for its SD and MSP members that are no less stringent
than the capital and margin requirements for SDs and MSPs imposed by
the Commission.
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In order for NFA to adequately implement a program to audit and
enforce compliance as required under Section 17(p)(2) of the CEA, to
regulate the practices of its members pursuant to Commission regulation
170.1, and to carry out the functions delegated to it by the
Commission, the Commission has determined that it is necessary for NFA
to obtain SDR data. This information, together with adequate financial
reporting by its members, will better enable NFA to monitor compliance
with its minimum financial and other requirements.
In requesting access to SDR data, NFA has stated that, as a front-
line regulator of SDs and MSPs, it may be necessary in certain
situations (e.g., investigations) for NFA to obtain data directly from
an independent source, such as an SDR, as opposed to relying solely on
data submitted by member firms. Furthermore, NFA has stated that if it
had access to firm level transaction data on a regular (e.g., monthly
or quarterly) basis, then this information would be a significant
addition to NFA's SD/MSP risk profiling system. The Commission concurs
with NFA's conclusion that it is far more efficient and timely for NFA
to collect swap transaction data from a few consolidated sources, i.e.,
the SDRs, than for NFA to make constant requests either through the
Commission or separately to over 100 SDs and MSPs.
Finally, at the request of the Commission, NFA has represented its
willingness to develop, at the direction of the Commission, reports
generated from analyses of the SDR data NFA receives pursuant to this
Order that the Commission or its staff may find necessary or desirable
from time to time in order to carry out its legal and statutory
responsibilities under the CEA and Commission regulations.
The Commission believes that NFA's direct electronic access to SDR
data will permit the Commission to carry out its legal and statutory
responsibilities under the CEA, retaining its ultimate decision-making
authority, while also freeing up Commission resources to be directed to
other parts of its regulatory mandate. NFA may not use the SDR data
obtained under the authority provided in this Order for any purpose
other than to facilitate NFA's performance of functions delegated to
NFA by the Commission and the performance of NFA's functions as an RFA.
III. Confidentiality of SDR Data
As a condition to receiving direct electronic access to SDR data as
a Commission designee, NFA must keep all non-public information
received through such access confidential.
The SDR data contains information that is protected from disclosure
by the Commission by Section 8 of the CEA.\18\ Pursuant to Section 8 of
the CEA, the Commission is prohibited, except as specifically
authorized by the CEA, from publishing data and information that would
separately disclose the business transactions or market positions of
any person and trade secrets or names of customers, subject to certain
exceptions that permit disclosure to: (i) Either House of Congress,
acting within the scope of its jurisdiction; (ii) a department, central
bank and ministries, or agency of the Government of the United States,
acting within the scope of its jurisdiction; (iii) a department,
central bank and ministries, or agency of any State or any political
subdivision thereof, acting within the scope of its jurisdiction; and
(iv) any foreign futures authority, or any department, central bank and
ministries, or agency of any foreign government or any political
[[Page 7764]]
subdivision thereof, acting within the scope of its jurisdiction.\19\
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\18\ 7 U.S.C. 12.
\19\ See Section 8(e) of the CEA; 7 U.S.C. 12(e).
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With respect to NFA's obligations regarding public disclosure of
information it maintains as an official records custodian of the
Commission,\20\ the Commission notes that NFA Compliance Rule 4-1
defines such information as ``CFTC records'' and subsection (c) of such
rule states that:
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\20\ See supra note 14 for orders by which the Commission
determined to authorize NFA to maintain and serve as the official
custodian of the Commission's registration records with respect to
various Commission registrants.
Requests for access to CFTC records, or portions thereof, not
subject to disclosure as public or publicly available under
paragraph (b)(1) of this Rule \21\ shall be referred or transmitted
to the Commission for response; except that, NFA will disclose such
records or portion thereof:
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\21\ NFA Compliance Rule 4-1(b)(1) states: ``If any member of
the public requests access to CFTC records, or portions thereof, and
the requested record, or portion, is ``public'' or ``publicly
available'' under CFTC Regulations 1.10(g) or 145.0, then NFA will
release that record or portion to the requester.''
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(1) otherwise with the authorization of the Assistant Secretary
of the Commission for FOI, Privacy, and Sunshine Act Compliance or
his or her designee, or the General Counsel of the Commission or his
or her designee, in accordance with CFTC Regulations 145.7(b), (h)
and (i); the Freedom of Information Act, 5 U.S.C. 552; and the
Privacy Act, 5 U.S.C. 552a; and
(2) to any individual or firm, or person acting on behalf of the
individual or firm, who seeks access to his, her or its CFTC
records: Provided, however, that NFA receives proper verification of
the identity and authority of the party requesting the records.
In order to ensure compliance with the Commission's obligations
under Section 8 of the CEA, NFA has represented and confirmed to the
Commission that all SDR data obtained by NFA through the direct
electronic access authorized by this Order will be subject to more
stringent obligations regarding public disclosure than are ``CFTC
records'' under NFA Compliance Rule 4-1. Thus, the Commission is
conditioning this Order on NFA's representation that it will not
publicly disclose any information obtained by NFA through the direct
electronic access to SDR data authorized by this Order. This Order is
further conditioned on NFA's undertaking that any request for such SDR
data received by NFA will be referred to the Commission for response
directly by the Commission. Notwithstanding the foregoing, this Order
provides that NFA may disclose the SDR data of a firm to such firm upon
request, subject to NFA receiving proper verification of the identity
and authority of the person making the request on behalf of such firm.
With respect to disclosing to a firm such firm's own SDR data, the
Commission notes that Commission regulation 49.17(f)(2) prohibits an
SDR from disclosing to one counterparty the identity or the legal
entity identifier (as such term is used in part 45 of the Commission's
regulations) of the other counterparty to a swap, or the other
counterparty's clearing member for the swap, if the swap is executed
anonymously on a swap execution facility or a designated contract
market and cleared in accordance with Commission regulations in 1.74,
23.610, and 37.12(b)(7). NFA has represented and confirmed that in
disclosing to a firm such firm's own SDR data, such data will not
include any information that an SDR would be prohibited from disclosing
pursuant to Commission regulation 49.17(f)(2).
IV. Conclusion and Order
For the reasons discussed above, and pursuant to its authority
under Section 21(c)(4)(A) of the CEA, the Commission has determined
that NFA's access to SDR data will assist the Commission to carry out
its legal and statutory responsibilities under the CEA and its
regulations. Thus, the Commission has determined to, and hereby does,
authorize NFA as a designee of the Commission for purposes of receiving
direct electronic access to SDR data, subject to the terms and
conditions specified below. Accordingly, subject to such terms and
conditions, SDRs registered with the Commission must provide NFA with
direct electronic access to such data as the Commission's designee in
accordance with Commission regulation 49.17(c)(1).
These determinations are based on NFA's representations and
demonstration of its willingness and ability to accept the SDR data
authorized by this Order for auditing and enforcing compliance with NFA
member requirements, and to safeguard from public disclosure any
information contained in such SDR data.
Accordingly, NFA's direct electronic access to SDR data is
specifically conditioned on NFA (1) safeguarding from public disclosure
any information contained in such SDR data (other than pursuant to the
limited exception specified below); (2) referring any request for such
data received by NFA to the Commission for response directly by the
Commission; (3) in no event disclosing any information regarding the
identity of a counterparty to a swap, or such counterparty's clearing
member for such swap, that an SDR would be prohibited from disclosing
pursuant to Commission regulation 49.17(f)(2); and (4) accessing and
using the SDR data obtained pursuant to the authority provided by this
Order solely to facilitate NFA's performance of functions delegated to
NFA by the Commission and NFA's performance of its functions as an RFA.
Notwithstanding such conditions, upon request of a firm, NFA may
disclose SDR data of that firm to such firm (other than information an
SDR would be prohibited from disclosing pursuant to Commission
regulation 49.17(f)(2)), subject to NFA receiving proper verification
of the identity and authority of the person making the request on
behalf of such firm.
Further, the Commission hereby delegates to the Director of the
Division of Swap Dealer and Intermediary Oversight the authority to:
(1) Limit or otherwise condition NFA's direct electronic access to
certain SDR data that such Director may determine in writing is
unnecessary to facilitate NFA's performance of functions delegated to
NFA by the Commission and the performance of NFA's functions as an RFA;
and (2) direct Commission staff to review, examine, or audit NFA's
access and use of the SDR data as such Director may determine is
necessary to ensure NFA's compliance with the conditions of this Order.
Nothing herein shall be deemed to prohibit the Commission, at its
election, from exercising the authority delegated in this paragraph.
This Order does not authorize NFA to render ``no-action''
positions, exemptions, or interpretations with respect to applicable
disclosure, reporting, recordkeeping, and registration requirements.
The Commission retains the authority to condition further, modify,
suspend, terminate, or otherwise restrict any of the terms of the Order
provided herein, in its discretion, including the kind of SDR data
accessible through direct electronic access. Nothing in this order
shall prevent the Commission from exercising its authority to receive
direct electronic access to SDR data or its authority to authorize any
other person to be a designee of the Commission to receive such access.
Nothing in this order, or in Section 8a(10) or 17(o) of the CEA, shall
affect the Commission's authority to review the performance by NFA of
its oversight of its members, to adopt and enforce regulations
applicable to SDs and MSPs as Commission registrants, and to conduct
on-site examinations of the operations
[[Page 7765]]
and activities of SDs and MSPs as Commission registrants.
Issued in Washington, DC, on February 10, 2016, by the
Commission.
Christopher J. Kirkpatrick,
Secretary of the Commission.
Appendix to Order Authorizing the National Futures Association as a
Commission Designee for Direct Electronic Access to Data in Swap Data
Repositories--Commission Voting Summary
On this matter, Chairman Massad and Commissioners Bowen and
Giancarlo voted in the affirmative. No Commissioner voted in the
negative.
[FR Doc. 2016-03064 Filed 2-12-16; 8:45 am]
BILLING CODE 6351-01-P