Statement of Commissioner Dan M. Berkovitz on Proposed Amendments to Part 43: Real-Time Public Reporting Requirements

February 20, 2020


I am voting to issue for public comment the proposed rulemaking that would amend certain rules requiring real-time public reporting of swap trades.  The proposal is intended to enhance the existing real-time public reporting framework adopted in 2012.  Although I am voting to issue the proposal for public comment, I do not support the provision in the proposal that would permit a 48-hour delay in the reporting of block trades.  A 48-hour delay for all block trades is too long.

One of the primary goals of the Dodd-Frank Act is to bring transparency to opaque swap markets.  In Commodity Exchange Act section 2(a)(13), Congress required the Commission to adopt real-time public reporting regulations.  Congress stated that ‘‘[t]he purpose of this section is to authorize the Commission to make swap transaction and pricing data available to the public in such form and at such times as the Commission determines appropriate to enhance price discovery.’’[1]  Many of the provisions in the proposal will further that statutory purpose by improving the usability of the real-time public reporting occurring under the 2012 regulations.

The provisions permitting a delay of 48 hours in the reporting of block trades, however, could impede rather than foster price discovery.  It also could undermine market integrity by providing counterparties to large swaps with an unfair information advantage.  While an appropriate block trade reporting delay is mandated by statute to allow effective hedging of the position, the delay should be appropriately limited.  I address this concern in greater detail below.

Intended Benefits of the Proposal

To effectively use real-time data for price discovery, market participants need to be able to compare data reported by the different swap data repositories and assess the validity of the data.  Significantly, the proposal would require standardized data reporting using technical specifications and instructions that establish the form and manner in which the data must be reported.  This approach promotes uniformity in the data across swap data repositories and reporting parties and thereby facilitates aggregation and validation. 

Similarly, the proposal addresses several technical questions that arose during implementation of the 2012 rules that obscured effective price discovery.  The issue of whether to report so-called “mirror swaps” executed under prime broker arrangements is addressed by eliminating duplicate reporting of the mirror swap after the “trigger” swap is reported.  Duplicate reporting can create a false signal of swap trading volume and potentially obscure price discovery by giving the price reported for a single prime brokerage swap twice as much weight relative to other non-prime brokerage swaps.  Similarly, issues involving pricing of certain types of swaps which, by their terms, are priced at a time after the swaps are executed would allow for more accurate price discovery—i.e. the price that is based on market conditions at the time the price is set.

Block Trade Reporting

The proposal also addresses the issue of block trade reporting.  In this area, while the proposal would make a number of improvements, it also raises issues for which public input would be helpful.  Congress directed the Commission to establish “the appropriate time delay for reporting large notional swap transactions (block trades) to the public.”[2]  The proposal maintains the current framework for block trade reporting, but proposes a number of substantive changes to how the block size is set and when the trades must be reported.

Some of these changes are practical, data driven modifications.  The proposal would change the categories of swaps for which different block trade sizes are established so that the block sizing applies to swap products that are comparable in how notional amounts and prices are set.  This change was based on both comments received during implementation and on swap data analysis.  This change would, if effective, enhance price discovery by eliminating the underreporting of categories of swap products that typically trade at notional levels in excess of the block size simply because they are, for example, in a different currency or trade in different quantities than is typical for the rest of the category to which they are compared.  As I have said before, when available, data should be used by the Commission to establish regulations that serve the public policy goals set by Congress.

The proposal also would eliminate several block trade delay periods in the existing rule as short as 15 minutes and replace them with a single 48-hour delay period.  This simplified approach to block trade reporting delays could harm price discovery and do so in a manner that is not supported by the need for a delay in block trade reporting.  Under the proposal, fully one-third of all trades within a category could be block trades subject to reporting delays.  Such a large carve-out from real-time reporting would harm price discovery and provide an unfair information advantage to swap dealers and other large counterparties. 

The need for a 48-hour delay is not apparent.  It is my understanding that for many block trades, the dealer seeking to hedge the block position will do so as soon as possible after the trade (if not before) and in most cases within the same trading session.  The logic of this is obvious—waiting overnight to establish a hedge could destroy the profit and loss calculated when the block was executed as market prices move further away from the prices at the time the trade was executed.  On the other hand, some small number of block trades, those of very large size or with complex features, may take 48 hours or more to hedge.  The Commission should calibrate the delay periods accordingly.

I thank the CFTC staff for working with my office to add questions addressing this issue.  The questions relating to proposed section 43.5 ask commenters to address whether these issues are of concern and whether the rule would benefit from having two delay periods, one shorter for “smaller” block trades and another for the largest block trades.  I look forward to reviewing comments on this and other issues.


I commend all of the staff at the CFTC who worked on the reporting rules over the years.  Getting swap reporting right is a difficult, but important function for the Commission.  Improving price discovery through real-time public reporting serves a core CFTC mission.  This proposal offers a number of pragmatic solutions to known issues with the current rule.   These improvements, however, should not and need notcome at the expense of market transparency and a level playing field.


[1] CEA section 2(13)(B) (emphasis added).

[2] CEA section 2(13)(E)(iii).