On November 19, 2012, the Division of Swap Dealer and Intermediary Oversight ("DSIO") and the Division of Market Oversight ("DMO") of the Commodity Futures Trading Commission ("CFTC") issued CFTC Letter No. 12-32 ("Letter No. 12-32") (available here) on matters concerning reporting requirements for Swap Dealers ("SDs").
Letter No. 12-32 provides SDs who register prior to their deadline (as discussed below) time-limited no-action relief with respect to certain requirements of Parts 43 (real-time public reporting of swap transaction data), 45 (swap data recordkeeping and swap data repository ("SDRs") reporting requirements) and 46 (swap data recordkeeping and SDR reporting requirements for historical swaps*) of the CFTC regulations (collectively referred to herein as the "Reporting Rules").
The Reporting Rules were adopted by the CFTC pursuant to the new reporting and recordkeeping requirements established under The Dodd-Frank Wall Street Reform and Consumer Protection Act (the "Dodd-Frank Act"). Section 727 of the Dodd-Frank Act added CEA Section 2(a)(13) which establishes real-time reporting and public availability of swap transaction data and requires that all swaps be reported to an SDR. Section 728 of the Dodd-Frank Act added CEA Section 21(b) which directs the CFTC to prescribe standards for swap data recordkeeping and reporting. Sections 723 and 729 of the Dodd-Frank Act added Sections 2(h)(5) and 4(r) which establish, among other things, reporting for historical swaps.
Time-Limited No-Action Relief Under Part 43 and Part 45 of the CFTC Regulations
The CFTC had published on October 9, 2012 a Q&A entitled "Q&A—On Start of Swap Data Reporting" ("Q&A") in which it clarified how registration requirements of SDs and Major Swap Participants ("MSPs") will affect the actual effective date on which SDs and MSPs must first report swap data to SDRs. Under the Reporting Rules, as clarified by the Q&A, an SD must begin reporting swaps which are required to be reported under the Reporting Rules on the earlier of (1) two months after the end of the month in which such SD exceeded the de minimis threshold, or (2) the date on which it submits its application for registration. The effective dates of the reporting requirements are being phased-in by asset class: the three compliance dates for reporting swaps to an SDR are October 12, 2012 (for credit and interest rate swap transactions in which the SDs and MSPs are a party), January 10, 2013 (for equity, foreign exchange and other commodity swap transactions for which SDs and MSPs are a party) and April 10, 2013 (for non-SDs/MSPs that are nonetheless required to report a swap transaction that they execute with another non-SD/MSP).
Several parties have raised concerns over the potential for different compliance dates for SD reporting in the event that an SD registers before its registration deadline, and have requested that a common monthly compliance date be established.
To address these concerns, the DSIO and DMO have stated in Letter No. 12-32 that they will not recommend that the CFTC take enforcement action against an SD for failing to report swap transaction data pursuant to Parts 43 and 45 of the CFTC regulations, until the earlier of (1) the registration deadline date applicable to that SD (notwithstanding the fact that the SD may have applied for registration before the deadline), or (2) April 10, 2013. This relief is "time-limited" because the latest possible date for compliance has been extended to no later than April 10, 2013.
Time-Limited No-Action Relief Under Part 46 of the CFTC Regulations
ISDA industry members also raised concerns that reporting obligations for historical swaps, which become effective simultaneously with the compliance date for an SD of its reporting obligations under Part 43 and Part 45 of the CFTC regulations, are too onerous because they would force members to report large volumes of historical swaps in a short amount of time.
To address this concern, the DSIO and DMO have stated in Letter No. 12-32 that they will not recommend that the CFTC take enforcement action against an SD for failing to report historical swaps data pursuant to Part 46 of the CFTC regulations until the earlier of (1) 30 days after the SD is required to begin reporting under Part 43 and Part 45 of the CFTC regulations, or (2) April 10, 2013.