Pursuant to Title VII of the Dodd-Frank Act, the SEC and CFTC have adopted interim final rules in respect of the reporting of swap transactions entered into prior to July 21, 2010 and which remained outstanding on such date ("pre-enactment unexpired swaps"). While the SEC's new Rule 13Aa-2T under the Securities Exchange Act of 1934 applies to security-based swaps and the CFTC's new Rule 44.02 under the Commodity Exchange Act applies to all other swap transactions, the rules are substantively identical. References herein to "swaps," "swap data repositories," "swap dealers" and "swap participants" also include "security-based swaps," "security-based swap data repositories," "security-based swap dealers" and "security-based swap participants" when referring to the new SEC rule.
The new SEC and CFTC rules require that a counterparty to a pre-enactment unexpired swap submit (i) a copy of the transaction confirmation in electronic form, if available, or in written form if no electronic copy exists and (ii) the time the transaction was executed, if available. This information must be submitted to a registered swap data repository or to the SEC or CFTC, as applicable, by the earlier of (i) the compliance date that will be established by SEC or CFTC rules, as applicable or (ii) within 60 days after a swap data repository is registered with the SEC or CFTC, as applicable, and becomes operational. The rules also require that the parties to pre-enactment unexpired swaps provide the SEC or CFTC, as applicable, with additional information with respect to such swaps upon request.
The new rules also specify which party is required to make the required reporting: (i) if one party to a pre-enactment unexpired swap is a swap dealer or major swap participant, that entity must report the swap; (ii) if one party is a swap dealer and the other is a swap participant, the swap dealer must report the swap; and (iii) if neither party is a swap dealer or swap participant, the parties must choose one of them to report the swap.
Finally, the new rules include interpretive notes advising counterparties to pre-enactment unexpired swaps that may be subject to reporting to retain all current information and documents relating to the terms of such swaps, including but not limited to (i) any information necessary to identify and value the transaction; (ii) the date and time of execution of the transaction; (iii) information relevant to the price of the transaction; (iv) whether the transaction was accepted for clearing by any clearing agency or derivatives clearing organization and, if so, the identity thereof; (v) any modification(s) to the terms of the transaction; and (vi) the final confirmation of the transaction. This information may be maintained in its existing format; new records with respect to pre-enactment unexpired swaps need not be created, nor must existing records be modified.