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The CFTC has approved its final rule on swap data recordkeeping and reporting, summarized below.


All persons transacting in swaps (as well as exchanges and clearing organizations) must keep records throughout the existence of a swap and for five years following termination of the swap. Swap Dealers (SDs) and Major Swap Participants (MSPs) must keep such records readily accessible throughout the life of a swap and for two years following its termination and keep them retrievable within three business days for the remainder of the retention period. Non-SD/MSP counterparties must keep records retrievable within five business days.


What Must Be Reported

The final reporting rule calls for electronic reporting to a Swap Data Repository of swap data from two important stages of existence of each swap: (1) the creation of the swap and (2) the continuation of the swap over its existence until final termination or expiration. Required swap creation data includes all primary economic terms (PET) data and all confirmation data for a swap. Required swap continuation data means all changes to primary economic terms and all valuation data. The final rulemaking calls for the use of three unique identifiers in connection with swap data reporting, including a Unique Swap Identifier (USI), a Legal Entity Identifier (LEI), and a Unique Product Identifier (UPI).

Who Must Report

The Commission has assigned the reporting obligation to the entity with the easiest, fastest, and cheapest access to the data. Swap creation data is reportable by an exchange or a clearing organization, if such entities are used. Otherwise, such data is reportable by one of the counterparties—a SD or MSP if present. Continuation data for cleared swaps is reported by the clearing organization, though SD and MSP reporting counterparties must also report valuation data. For uncleared swaps, all continuation data is reported by one of the counterparties—again, a SD or MSP, if present in the transaction.

Thus, non-SD/MSP counterparties must report data only for the small minority of swaps in which both counterparties are non-SD/MSP counterparties. Even within this small minority of swaps, the non-SD/MSP reporting counterparty will have no reporting obligations for on-facility, cleared swaps, or for off-facility swaps accepted for clearing within the deadline for PET data reporting by the non-SD/MSP reporting counterparty. If an off-facility swap is accepted for clearing after the PET data reporting deadline, the non-SD/MSP counterparty is excused from reporting confirmation data, which will instead be reported by the DCO. For on-facility, uncleared swaps, the non-SD/MSP reporting counterparty’s reporting obligations are limited to reporting continuation data during the existence of the swap. Where one of two non-SD/MSP counterparties is a financial entity as defined in the Dodd-Frank Act, the final rule makes the financial entity the reporting counterparty.

Compliance Dates

Compliance date 1, the date on which exchanges, clearing organizations, SDs and MSPs must commence compliance with respect to credit swaps and interest rate swaps, is the later of (a) July 16, 2012, or (b) 60 days after publication of Commission definitions of “swap,” “swap dealer,” and “major swap participant.” Compliance date 2, the date on which such entities and counterparties must commence compliance with respect to equity swaps, foreign exchange transactions, and other commodity swaps, is 90 calendar days after compliance date 1. Compliance date 3, the date on which non-SD/MSP counterparties must begin compliance with respect to swaps in all asset classes, is 90 calendar days after compliance date 2.

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