Beating the deadline (October 20, 2010) for the first of its required Dodd-Frank rulemakings by more than two weeks, the CFTC has announced publication of its required interim final rule for the reporting of pre-enactment swap transactions. The basic requirements of the reporting rule are outlined below.

What Counterparties are Responsible for Reporting

The Act itself establishes the following hierarchy regarding the entities required to report individual swaps:

  • With respect to a swap in which only one counterparty is a swap dealer or major swap participant, that entity is responsible for reporting the swap;
  • With respect to a swap in which one counterparty is a swap dealer and the other counterparty is a major swap participant, the swap dealer must report the swap;
  • With respect to any other swap, the counterparties shall select one of them to report the swap.

Information That Must be Reported

The interim final rule identifies the following types of information that should be retained in anticipation of the reporting requirement:

  • Any information necessary to identify and value the transaction;
  • The date and time of execution;
  • Information related to the price of the transaction;
  • Whether the transaction was accepted for clearing and if so, the identity of the clearing organization;
  • Any modification(s) to the transaction;
  • The final confirmation of the transaction.

When the Swaps Must be Reported

The Act requires entities to report pre-enactment swaps by the earlier of (i) 60 days after the registration of an appropriate swap data repository or (ii) the compliance date established in the permanent reporting rules, to be adopted by the Commission on or before January 17, 2011.

Nature of the Interim Final Rule

An interim final rulemaking permits an agency to adopt as final a rule that has not been subject to the Administrative Procedure Act’s mandated public notice and opportunity to comment. In an interim final rulemaking, the agency publishes the rule as final and concurrently solicits public comment. The Commission stated that “[a]n interim final rulemaking is warranted in these circumstances by the necessity to provide timely notice to counterparties that they may become subject to a reporting requirement for pre-enactment swaps and to advise with respect to the data that should be preserved with respect to such reporting.”