27410 Federal Register / Vol. 83, No. 113 / Tuesday, June 12, 2018 / Rules and Regulations 

1 17 CFR 49.17(d)(5)(iii). All Commission 

regulations cited herein are set forth in Title 17 of 

the Code of Federal Regulations. 2 7 U.S.C. 1 et seq. 

COMMODITY FUTURES TRADING 

COMMISSION 

17 CFR Part 49 

RIN Number 3038–AE44 

Amendments to the Swap Data Access 

Provisions of Part 49 and Certain Other 

Matters 

AGENCY: Commodity Futures Trading 

Commission. 

ACTION: Final rule. 

SUMMARY: Pursuant to Title VII of the 

Dodd-Frank Wall Street Reform and 

Consumer Protection Act of 2010 

(‘‘Dodd-Frank Act’’), as amended by the 

Fixing America’s Surface Transportation 

Act of 2015 (‘‘FAST Act’’), the 

Commodity Futures Trading 

Commission (‘‘Commission’’ or 

‘‘CFTC’’) is amending the Commission’s 

regulations relating to access to swap 

data held by swap data repositories 

(‘‘SDRs’’). The amendments implement 

pertinent provisions of the FAST Act 

and make associated changes to the 

Commission’s regulations governing the 

grant of access to swap data to certain 

foreign and domestic authorities by 

SDRs, as well as changes to certain other 

regulations unrelated to such access. 

DATES: The effective date for this final 

rule is August 13, 2018. For compliance 

dates, see SUPPLEMENTARY INFORMATION. 

FOR FURTHER INFORMATION CONTACT: 

Daniel Bucsa, Deputy Director, Division 

of Market Oversight—Data and 

Reporting Branch (‘‘DMO–DAR’’), (202) 

418–5435, dbucsa@cftc.gov; David E. 

Aron, Special Counsel, DMO–DAR, 

(202) 418–6621, daron@cftc.gov; Owen 

J. Kopon, Special Counsel, DMO–DAR, 

(202) 418–5360, okopon@cftc.gov; or 

Stephen Kane, Research Economist, 

Office of the Chief Economist, (202) 

418–5911, skane@cftc.gov, Commodity 

Futures Trading Commission, Three 

Lafayette Centre, 1151 21st Street NW, 

Washington, DC 20581. 

SUPPLEMENTARY INFORMATION: The 

compliance date for an SDR to comply 

with its obligation under 

§ 49.17(d)(5)(iii) of the Commission’s 

regulations 1 to provide access to swap 

data requested by an Appropriate 

Domestic Regulator (as defined in 

§ 49.17(b)(1)) (‘‘ADR’’) or Appropriate 

Foreign Regulator (as defined in 

§ 49.17(b)(2)) (‘‘AFR’’) is, as discussed 

further below, the earlier of (1) the 

earliest date, after such SDR receives 

from such ADR or AFR the 

confidentiality arrangement required by 

§ 49.18(a), that such SDR, exercising 

commercially reasonable efforts in light 

of its obligations under the Act 2 and the 

Commission’s regulations, is able to 

provide such access to the ADR or AFR 

and (2) 180 days after the SDR receives 

from such ADR or AFR the 

confidentiality arrangement required by 

§ 49.18(a). The compliance date for all 

other regulations amended, added or 

revised by this final rule is August 13, 

2018. 

Table of Contents 

I. Background and Introduction 

A. Statutory Background: The Dodd-Frank 

Act 

B. Regulatory History: The Part 49 Rules 

and the Commission’s Interpretative 

Statement 

1. Access to SDR Swap Data 

2. Indemnification Requirement 

C. FAST Act Amendments to CEA Section 

21 

D. CEA Section 8 and the Confidentiality 

Provisions of CEA Section 21 

E. High-Level Summary of Revisions to 

Part 49 

F. Rescission of Interpretative Statement 

II. Discussion 

A. Definitions: Amendments to § 49.2 

B. Domestic and Foreign Regulators With 

Regulatory Responsibility Over SDRs: 

Amendments to § 49.17(d)(2) and (3) 

1. Current Rules 

2. Proposed Amendments 

3. Comments Received 

4. Final Rules 

C. Appropriateness Determination for 

Foreign Regulators and Non-Enumerated 

Domestic Regulators: Amendments to 

§ 49.17(b) and New § 49.17(h) 

1. Current Rule 

2. Proposed Amendments: Determination 

Order Process 

3. Proposed Amendments: Factors 

Considered in Issuing a Determination 

Order 

a. Scope of Jurisdiction 

b. Robust Confidentiality Safeguards 

c. Swap Data Sharing Considerations 

4. Proposed Amendments: Other Matters 

Regarding the Determination Order 

Process 

5. Final Rules 

D. Amendments to § 49.17(d)(4): SDR 

Notice and Verification Obligations 

1. Proposed Amendments 

2. Final Rules 

a. § 49.17(d)(4)(i) 

i. Notices of Initial Access Requests and 

Requests Outside the Scope of 

Jurisdiction 

ii. Recordkeeping 

iii. Aggregated Data 

b. § 49.17(d)(4)(ii) 

c. § 49.17(d)(4)(iii) 

i. Scope of an ADR’s or AFR’s Jurisdiction 

ii. Changes to an ADR’s or AFR’s Scope of 

Jurisdiction 

iii. Written Notices 

d. § 49.17(d)(4)(iv) 

E. New § 49.17(i): Delegation of Authority 

F. CEA Section 21(d) Confidentiality 

Agreements: Amendments to § 49.18 

1. Current Rule 

2. Proposed Amendments to § 49.18(a): 

Confidentiality Arrangement Required 

Prior to Disclosure of Swap Data 

3. Proposed Amendments to § 49.18(b): 

Required Elements of the Confidentiality 

Arrangement 

4. Proposed Removal of § 49.18(c): ADRs 

and AFRs With Regulatory 

Responsibility Over an SDR 

5. Proposed New § 49.18(c) and (d): Failure 

To Fulfill the Terms of a Confidentiality 

Arrangement 

6. Proposed New § 49.18(e): Delegation of 

Authority 

7. Conforming Changes 

8. Comments Received 

9. Final Rule 

G. Other Changes 

1. Proposed Rule Changes 

2. Final Rule Changes 

III. Request for Comment 

IV. Compliance Date 

V. Related Matters 

A. Regulatory Flexibility Act 

B. Paperwork Reduction Act 

1. Summary of the Requirements 

2. Collection of Information 

C. Cost-Benefit Considerations 

1. Introduction 

2. Benefits 

a. Background 

b. High-Level Benefits 

c. More Specific Benefits 

i. MOUs 

ii. Duty for SDRs To Notify the 

Commission of Swap Data Requests 

From ADRs and AFRs 

iii. Form of Electronic Notification by SDRs 

to the Commission 

iv. Clarification of SDR Recordkeeping 

Obligations 

v. Limitation, Suspension or Revocation of 

an ADR’s or AFR’s Swap Data Access 

vi. Confidentiality Arrangements 

vii. Means of Access 

3. Costs 

a. Background 

b. High-Level Costs 

c. ADRs’ and AFRs’ Costs 

i. Determination Order Applications 

ii. Confidentiality Arrangements 

iii. Data Security 

iv. Onward Sharing 

v. Means of Access 

d. SDRs’ Costs 

i. Providing New Access Generally 

ii. Providing Notice to the Commission 

iii. Verifying That a Swap Data Request is 

Within an ADR’s/AFR’s Scope of 

Jurisdiction 

iv. Means of Access 

v. Recordkeeping 

4. Response to Comments 

5. Alternatives Considered 

6. Consideration of CEA Section 15(a) 

Factors 

a. Protection of Market Participants and the 

Public 

b. Efficiency, Competitiveness, and 

Financial Integrity of Futures Markets 

c. Price Discovery 

d. Sound Risk Management Practices 

e. Other Public Interest Considerations 


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Federal Register / Vol. 83, No. 113 / Tuesday, June 12, 2018 / Rules and Regulations 27411 

3See Dodd-Frank Wall Street Reform and 

Consumer Protection Act, Public Law 111–203, 124 

Stat. 1376 (2010), available at http://www.cftc.gov/ 

LawRegulation/OTCDERIVATIVES/index.htm. Title 

VII of the Dodd-Frank Act may be cited as the Wall 

Street Transparency and Accountability Act of 

2010. 

4See Dodd-Frank Act section 728 (adding new 

CEA section 21, 7 U.S.C. 24(a), to establish a 

registration requirement and regulatory regime for 

SDRs). 

5 7 U.S.C. 24a(c)(6). 

6CEA section 8, 7 U.S.C. 12, describes 

circumstances under which public disclosure of 

information in the Commission’s possession is 

permitted and prohibited. As discussed more fully 

below, the principles underlying CEA section 8(e), 

in particular, are fundamental to CEA sections 

21(c)(7) and (d) and to the access standards and 

confidentiality provisions adopted in this release. 

7See 7 U.S.C. 24a(c)(7). See also Commission, 

Final Rulemaking: Swap Data Recordkeeping and 

Reporting Requirements, 77 FR 2136, Jan. 13, 2012 

(‘‘Data Final Rules’’). The Data Final Rules set forth, 

among others, regulations governing SDR data 

collection and swap data reporting responsibilities 

under part 45 of the Commission’s regulations. 

8 7 U.S.C. 24a(d). As noted above, the 

indemnification requirement was stricken from 

CEA section 21(d) by the FAST Act. See Public Law 

114–94, section 86001(b)(2). 

9FAST Act, Public Law 114–94, 129 Stat. 1312 

(Dec. 4, 2015). 

10FAST Act section 86002(b)(2) struck subsection 

(d) of CEA section 21 and inserted a new provision 

in in its place that stated that before the swap data 

repository may share information with any entity 

listed in section (c)(7), the swap data repository 

shall receive a written agreement from each entity 

stating that the entity shall abide by the 

confidentiality requirements described in section 8 

of the CEA relating to the information on swap 

transactions that is provided. 

11Swap Data Repositories: Registration 

Standards, Duties and Core Principles; 76 FR 54538 

(Sept. 1, 2011) (‘‘SDR Final Rules’’); see also Swap 

Data Repositories: Registration Standards, Duties 

and Core Principles, 75 FR 80898 (Dec. 23, 2010) 

(the proposed SDR Final Rules) (‘‘SDR NPRM’’). 

12The domestic authorities enumerated in CEA 

section 21(c)(7) are: (A) Each appropriate prudential 

regulator; (B) the Financial Stability Oversight 

Council (‘‘FSOC’’); (C) the Securities and Exchange 

Commission (‘‘SEC’’); and (D) the Department of 

Justice. The term ‘‘prudential regulator’’ is defined 

in CEA section 1a(39) (7 U.S.C. 1a(39)). 

13 In addition to CEA section 21(c)(7) enumerating 

certain domestic authorities to which an SDR must 

grant swap data access, CEA section 21(c)(7)(E), as 

amended by the FAST Act, identifies as an eligible 

recipient of such access as any other person that the 

Commission determines to be appropriate, 

including foreign financial supervisors (including 

foreign futures authorities); foreign central banks; 

foreign ministries; and other foreign authorities. 7 

U.S.C. 24a(c)(7)(E). Pursuant to this authority, in 

§§ 49.17(b)(1)(v) and (vi), the Commission 

identified any Federal Reserve Bank and the Office 

of Financial Research (‘‘OFR’’), respectively, as 

ADRs. The Commission also defined as an 

‘‘Appropriate Domestic Regulator’’ each prudential 

regulator identified in CEA section 1(a)(39), with 

respect to requests related to any such regulator’s 

statutory authority, without limitation to the 

activities listed for each regulator in CEA section 

1(a)(39). See § 49.17(b)(1)(ii). The Commission 

further reserved the discretion, in § 49.17(b)(1)(vii), 

to recognize any other person the Commission 

deems appropriate to be an ADR. 

14The Commission established the category of 

AFRs pursuant to CEA section 21(c)(7)(E), which, 

among other things, includes a list of the types of 

foreign entities that the Commission may determine 

to be appropriate recipients of swap data obtained 

by an SDR. 

15The term ‘‘Foreign Regulator’’ is defined in 

current § 49.2(a)(5) to mean a foreign futures 

authority as defined in CEA section 1(a)(26), foreign 

financial supervisors, foreign central banks and 

foreign ministries. 

16 17 CFR 49.17(b)(2)(i)(B). 

17Current § 49.18(b) requires an SDR to receive 

such a Confidentiality and Indemnification 

Agreement from an ADR or AFR prior to releasing 

swap data to the ADR or AFR. 

18See SDR Final Rules at 54554. The Commission 

notes that, to date, no 21(c)(7) entity has entered 

into a confidentiality or indemnification agreement 

pursuant to CEA section 21(d) or the part 49 rules. 

D. Antitrust Considerations 

I. Background and Introduction 

A. Statutory Background: The DoddFrank Act 

Title VII of the Dodd-Frank Act 3

amended the Commodity Exchange Act 

(‘‘CEA’’) to establish a comprehensive 

new regulatory framework for swaps 

including, in new CEA section 21, 

requirements addressing the registration 

and regulation of SDRs.4 CEA section 21 

imposes on SDRs, among other duties 

and responsibilities, the duty to 

maintain the privacy of all swap 

transaction information received from a 

swap dealer, counterparty, or any other 

registered entity.5 CEA section 21(c)(7) 

directs SDRs to make swap data 

available on a confidential basis 

pursuant to section 8 of the CEA, upon 

request, and after notifying the 

Commission of the request,6 to certain 

enumerated domestic authorities and 

any other person (which may include 

certain types of foreign authorities) that 

the Commission determines to be 

appropriate (each such enumerated and 

Commission-determined entity, a 

‘‘21(c)(7) entity’’).7

As originally enacted, CEA sections 

21(d)(1) and (2), respectively, mandated 

that, prior to receipt of any requested 

data or information from an SDR, a 

21(c)(7) entity agree in writing to abide 

by the confidentiality requirements 

described in CEA section 8 and, 

separately, to indemnify the SDR and 

the Commission for any expenses 

arising from litigation relating to the 

information provided under section 8.8

Congress’s repeal of the CEA section 

21(d)(2) indemnification requirement in 

the FAST Act 9 in December 2015 

prompted this rulemaking.10

B. Regulatory History: The Part 49 Rules 

and the Commission’s Interpretative 

Statement 

1. Access to SDR Swap Data 

In 2011, the Commission adopted 

rules implementing the requirements for 

SDRs in CEA section 21.11 The 

Commission implemented the SDR 

swap data access provisions of CEA 

sections 21(c)(7) and (d) by establishing 

processes to allow two categories of 

entities to gain access to SDR swap data. 

The Commission defined one category, 

ADRs, in § 49.17(b)(1) of the 

Commission’s regulations as domestic 

authorities enumerated in CEA section 

21(c)(7)(A)–(D) 12 and certain other 

persons determined by the Commission 

to be appropriate recipients of such 

swap data pursuant to CEA section 

21(c)(7)(E).13

The Commission defined the other 

category, AFRs,14 in § 49.17(b)(2) as 

‘‘Foreign Regulators’’ 15 with existing 

memoranda of understanding (‘‘MOUs’’) 

or similar types of information sharing 

arrangements with the Commission, but 

did not identify any specific persons as 

AFRs in the SDR Final Rules. The SDR 

Final Rules also defined the term AFR 

to include a Foreign Regulator without 

an existing MOU with the Commission, 

as determined by the Commission on a 

case-by-case basis. Such a Foreign 

Regulator was required to file with the 

Commission an application providing 

sufficient facts and procedures to permit 

the Commission to analyze whether the 

Foreign Regulator employed appropriate 

confidentiality procedures, and to 

satisfy the Commission that any SDR 

swap data or information accessed by 

the Foreign Regulator would be 

disclosed only as permitted by section 

8(e) of the CEA.16

An ADR or AFR seeking access to 

SDR swap data is required by current 

§ 49.17(d)(1) to file an access request 

with the SDR certifying that it is acting 

within the scope of its jurisdiction and 

is required by current § 49.17(d)(6) to 

execute a ‘‘Confidentiality and 

Indemnification Agreement’’ with the 

SDR.17

2. Indemnification Requirement 

In the preamble to the SDR Final 

Rules, the Commission acknowledged 

commenters’ concerns that compliance 

with the statutory and regulatory 

requirements to indemnify the 

Commission, and the SDR providing 

access to swap data, for any expenses 

arising from litigation relating to the 

information provided under section 8 of 

the CEA, would be difficult for certain 

domestic and foreign regulators, due to 

various home country laws and other 

regulations prohibiting such 

arrangements.18 The Commission 

expressed its intent to continue to work 

to provide regulators sufficient access to 

SDR data. In this regard, the 

Commission outlined the circumstances 

under which it believed the 

indemnification provisions of CEA 


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27412 Federal Register / Vol. 83, No. 113 / Tuesday, June 12, 2018 / Rules and Regulations 

19See SDR Final Rules at 54554, n163. 

Accordingly, pursuant to the Commission’s Part 49 

rules, these provisions did not apply to an ADR that 

has regulatory jurisdiction over an SDR registered 

with the ADR pursuant to a separate statutory 

authority and also registered with the Commission, 

if the ADR executes an MOU or similar information 

sharing arrangement with the Commission and the 

Commission, consistent with CEA section 

21(c)(4)(A), designates the ADR to receive direct 

electronic access. See 17 CFR 49.17(d)(2). 

20See Swap Data Repositories: Interpretative 

Statement Regarding the Confidentiality and 

Indemnification Provisions of the Commodity 

Exchange Act, 77 FR 65177 (Oct. 25, 2012) 

(‘‘Interpretative Statement’’). 

21 Interpretative Statement at 65181. 

22Title LXXXVI (‘‘Repeal of Indemnification 

Requirements’’) of the FAST Act amends the CEA 

by repealing the indemnification requirements 

added by the Dodd-Frank Act for regulatory 

authorities to obtain access to swap data because 

foreign regulators and regulatory entities have 

indicated concerns regarding the indemnification 

requirements of the Dodd-Frank Act. The title 

removes such requirements so data can be shared 

with foreign authorities. The title would still 

require the regulatory agencies requesting the 

information to agree to certain confidentiality 

requirements prior to receiving the data. FAST Act: 

Conference Report to Accompany H.R. 22, Dec. 1, 

2015 at 486–87. The repeal applied as well to the 

analogous provision in the Securities Exchange Act 

of 1934, 15 U.S.C. 78m(n)(5). 

23As noted above, FAST Act section 86002(b)(2) 

struck subsection (d) of CEA section 21 and inserted 

a new provision in its place that stated that before 

the swap data repository may share information 

with any entity listed in section (c)(7), the swap 

data repository shall receive a written agreement 

from each entity stating that the entity shall abide 

by the confidentiality requirements described in 

section 8 of the CEA relating to the information on 

swap transactions that is provided. 

24See FAST Act section 86001(b)(1). 

25 7 U.S.C. 12(e). 

26See, e.g., CEA section 21(f)(4) (Additional 

duties developed by Commission), 7 U.S.C. 

24a(f)(4). The Commission is also authorized by 

CEA section 8a(5), 7 U.S.C. 12a(5), to make such 

rules and regulations as, in the judgment of the 

Commission, are reasonably necessary to effectuate 

any of the provisions or to accomplish any of the 

purposes of the CEA. 

27See Proposed Amendments To Swap Data 

Access Provisions and Certain Other Matters, 82 FR 

8369 (Jan. 25, 2017) (‘‘NPRM’’). 

28Section 752(a) of the Dodd-Frank Act directs 

the CFTC, the SEC and the prudential regulators, as 

appropriate, to consult and coordinate with foreign 

regulatory authorities in this regard and provides 

that these entities may agree to such informationsharing arrangements as may be deemed necessary 

or appropriate in the public interest or for the 

protection of investors, swap counterparties, and 

security-based swap counterparties. 

section 21(d) and § 49.18 would not 

apply. The Commission explained that, 

under the part 49 rules, ADRs with 

concurrent regulatory jurisdiction over 

SDRs may in some circumstances obtain 

access to swap data reported to and 

maintained by those SDRs without 

regard to the notice and indemnification 

requirements of CEA sections 21(c)(7) 

and (d).19 With respect to foreign 

regulatory authorities, the Commission 

determined in the SDR Final Rules that 

swap data reported to and maintained 

by an SDR may be accessed by an AFR 

without the execution of a 

confidentiality and indemnification 

agreement when the AFR has 

supervisory authority over a 

Commission-registered SDR that is also 

registered with the AFR pursuant to 

foreign law and/or regulation. 

Since concerns about the scope of the 

indemnification requirement persisted, 

the Commission issued an interpretative 

statement designed to provide guidance 

and greater clarity to interested 

members of the public and foreign 

regulators with respect to the scope and 

application of CEA section 21(d) and the 

part 49 rules.20 The Interpretative 

Statement clarified that a foreign 

regulatory authority’s access to swap 

data held in a CFTC-registered SDR 

would not be subject to the 

confidentiality and indemnification 

provisions of CEA section 21(d) or the 

part 49 regulations if (i) the registered 

SDR is also registered in, or recognized 

or otherwise authorized by, the foreign 

authority’s regulatory regime and (ii) the 

data sought to be accessed by the foreign 

authority has been reported to the 

registered SDR pursuant to such foreign 

regulatory regime.21

C. FAST Act Amendments to CEA 

Section 21 

Congress responded to regulators’ 

access concerns by including in the 

FAST Act a repeal of the 

indemnification requirement in CEA 

section 21(d)(2).22 The confidentiality 

requirement in CEA section 21(d)(1) was 

retained in amended CEA section 

21(d).23

The FAST Act also modified CEA 

section 21(c)(7)(A) by clarifying that 

SDRs must make available the ‘‘swap’’ 

data they obtain to 21(c)(7) entities, and 

added to CEA section 21(c)(7)(E)’s nonexclusive list of persons that the 

Commission may determine to be 

appropriate recipients of SDR swap data 

the new category ‘‘other foreign 

authorities.’’ 24

D. CEA Section 8 and the 

Confidentiality Provisions of CEA 

Section 21 

CEA section 8 governs the 

Commission’s treatment of nonpublic 

information in its possession in a 

number of circumstances. CEA section 

8(e) permits the Commission to furnish 

to the specified types of domestic or 

foreign entities—upon their request and 

acting within the scope of their 

jurisdiction—any information in its 

possession obtained in connection with 

the administration of the Act.25 CEA 

section 8(e) specifies, with respect to 

federal U.S. entities, that any 

information furnished thereunder shall 

not be disclosed by the entity except in 

an action or proceeding under the laws 

of the United States to which the entity, 

the Commission or the United States is 

a party. CEA section 8(e) further 

specifies, with respect to the specified 

types of foreign entities, that the 

Commission shall not furnish 

information thereunder unless the 

Commission is satisfied that the 

information will not be disclosed by the 

entity except in connection with an 

adjudicatory action or proceeding to 

which the entity is a party brought 

under the laws to which such entity is 

subject. 

CEA sections 21(c)(7) and 21(d) 

incorporate CEA section 8 in 

establishing the disclosure restrictions 

and confidentiality standards that apply 

to SDRs when providing swap data to 

regulators. The Commission interprets 

these provisions as requiring 

consistency with the principles 

underlying CEA section 8(e) and 

therefore being fundamental to the 

access standards and confidentiality 

provisions adopted in this release. In 

adopting revised §§ 49.17 and 49.18, the 

Commission is mindful of these 

foundational principles: Where 

information is sought to be accessed, the 

information must relate to the scope of 

the requesting entity’s jurisdiction; and 

information provided by the SDR shall 

not be further disclosed except in 

limited, defined circumstances. 

E. High-Level Summary of Revisions to 

Part 49 

Pursuant to its authority under the 

Act,26 the Commission proposed 

amendments in January 2017 to §§ 49.2, 

49.9, 49.17, 49.18, and 49.22 to (i) 

implement the statutory changes 

mandated by the FAST Act 

amendments; (ii) make certain 

conforming and clarifying changes 

related to such implementation; (iii) 

revise the process by which 

appropriateness is determined for 

purposes of access to SDR swap data; 

(iv) clarify the standards in connection 

with the Commission’s appropriateness 

determinations; and (v) establish the 

form and substance of the written 

agreement mandated by CEA section 

21(d), as amended.27 In formulating the 

proposed amendments, the Commission 

endeavored to achieve the goals of 

effective and consistent global 

regulation of swaps 28 while adhering to 

the mandate of CEA sections 21(c)(7) 

and (d) that swap data be made 

available to a limited universe of 


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29 17 CFR 49.2(a)(5). CEA Section 1a(26) defines 

a ‘‘foreign futures authority’’ as any foreign 

government, or any department, agency, 

governmental body, or regulatory organization 

empowered by a foreign government to administer 

or enforce a law, rule, or regulation as it relates to 

a futures or options matter, or any department or 

agency of a political subdivision of a foreign 

government empowered to administer or enforce a 

law, rule, or regulation as it relates to a futures or 

options matter. 30See SDR Final Rules at 54554. 

31The Commission’s proposal for domestic 

regulators was consistent with the principle 

previously set forth in the Interpretative Statement 

with respect to the application of the confidentiality 

and indemnification provisions of the CEA to 

foreign regulators. In particular, the Commission 

stated that a foreign regulator’s access to data from 

a registered SDR that is also registered, recognized, 

or otherwise authorized in a foreign jurisdiction’s 

regulatory regime, where the data to be accessed has 

been reported pursuant to that other regulatory 

regime, will be dictated by that jurisdiction’s 

regulatory regime and not by the CEA or 

Commission regulations. See Interpretative 

Statement at 65181. 

32 Id. 

33 Joint Comment Letter submitted by CME, DDR, 

and ICETV at 2 (March 27, 2017) (‘‘SDR Letter’’). 

34 Id. 

regulators on a confidential basis 

pursuant to CEA section 8. As explained 

in Section II below, the Commission is 

generally adopting, with certain 

modifications, the rules and rule 

amendments as proposed. 

F. Rescission of Interpretative Statement 

The Commission has determined to 

rescind the Interpretative Statement. 

References to the indemnification 

requirement in the Interpretative 

Statement are no longer necessary, as 

the FAST Act repealed the 

indemnification requirement in CEA 

section 21(d). Additionally, the 

modifications to § 49.17(d)(3) that are 

adopted by the Commission in this 

release are not inconsistent with the 

clarifications provided in the 

Interpretative Statement. 

II. Discussion 

A. Definitions: Amendments to § 49.2 

As originally adopted, § 49.2(a)(5) 

defined the term ‘‘Foreign Regulator’’ to 

include a foreign futures authority as 

defined in CEA section 1a(26), foreign 

financial supervisors, foreign central 

banks and foreign ministries.29 The 

FAST Act amendments to the CEA 

added to section 21(c)(7)(E) a new 

category of entity—‘‘other foreign 

authorities’’—that the Commission may 

deem appropriate to obtain access to 

SDR swap data. The Commission 

proposed in the NPRM a corresponding 

amendment to the definition of ‘‘Foreign 

Regulator’’ in § 49.2(a)(5) to conform 

this definition to amended CEA section 

21(c)(7)(E). The Commission received 

no comments on that proposed 

amendment. Thus, for the foregoing 

reasons, the Commission is adopting the 

amendment as proposed. 

B. Domestic and Foreign Regulators 

With Regulatory Responsibility Over 

SDRs: Amendments to § 49.17(d)(2) and 

(3) 

1. Current Rules 

Commission regulation 49.17(d)(2) 

currently provides that an ADR with 

regulatory jurisdiction over an SDR that 

is registered with the ADR pursuant to 

a separate statutory authority and that is 

also registered with the Commission 

does not need to apply to the SDR for 

access to swap data and execute a 

confidentiality and indemnification 

agreement, as required by §§ 49.17(d) 

and 49.18(b), as long as the following 

conditions are met: (i) The ADR 

executes an MOU or similar information 

sharing arrangement with the 

Commission; and (ii) the Commission, 

consistent with CEA section 21(c)(4)(A), 

designates the ADR to receive direct 

electronic access. The Commission 

provided in the SDR Final Rules that 

these ADRs may be provided access to 

the swap data reported and maintained 

by SDRs without being subject to the 

notice and indemnification provisions 

of CEA sections 21(c)(7) and (d).30

Commission regulation 49.17(d)(3) 

currently provides that an AFR with 

supervisory authority over an SDR 

registered with it pursuant to foreign 

law and/or regulation that is also 

registered with the Commission is not 

subject to the requirements of § 49.17(d) 

and § 49.18(b). As described in the SDR 

Final Rules and the Interpretative 

Statement, the Commission believes that 

swap data reported to, and maintained, 

by an SDR may be appropriately 

accessed by an AFR without the 

execution of a confidentiality and 

indemnification agreement when the 

AFR is acting in a regulatory capacity 

with respect to an SDR that is also 

registered with the AFR, and the swap 

data was reported to such SDR pursuant 

to such AFR’s regulatory regime. 

2. Proposed Amendments 

With respect to domestic regulators 

with regulatory jurisdiction over an 

SDR, the Commission proposed in the 

NPRM to remove: (1) The reference to 

‘‘Appropriate Domestic Regulator’’ in 

§ 49.17(d)(2) and replace it with the 

term ‘‘domestic regulator’’ to clarify that 

all domestic regulators, and not just 

ADRs, would fall under § 49.17(d)(2); (2) 

§ 49.17(d)(2)(i) (information sharing 

arrangement condition); and (3) 

§ 49.17(d)(2)(ii) (direct electronic access 

condition). Based on its experience with 

SDR swap data access, the Commission 

believed an additional refinement of 

these rules was necessary in order to 

promote greater efficiency and 

cooperation among domestic regulators. 

Accordingly, the Commission proposed 

that a domestic regulator that has 

regulatory responsibility over an SDR 

registered with it pursuant to a separate 

statutory authority should be able to 

access SDR data reported to such SDR 

pursuant to such separate statutory 

authority irrespective of whether such 

domestic regulator has executed an 

MOU or similar information sharing 

arrangement with the Commission or 

been designated to receive direct 

electronic access by the Commission.31

In connection with foreign regulatory 

authorities that have supervisory 

authority over an SDR, the Commission 

proposed in the NPRM to (i) replace the 

reference to ‘‘Appropriate Foreign 

Regulator’’ in § 49.17(d)(3) with the term 

‘‘Foreign Regulator,’’ as defined in 

§ 49.2, to clarify that all Foreign 

Regulators, not only those that have 

been determined ‘‘appropriate’’ by the 

Commission, would fall under 

§ 49.17(d)(3); and (ii) add qualifying 

language to § 49.17(d)(3) so that 

§ 49.17(d)(3) applies not only to SDRs 

that are ‘‘registered’’ with the Foreign 

Regulator but also to those SDRs that are 

‘‘recognized or otherwise authorized’’ 

by the Foreign Regulator, where the 

swap data being accessed has been 

reported to the SDR pursuant to the 

Foreign Regulator’s regulatory regime.32

3. Comments Received 

The Commission received one 

comment, from Chicago Mercantile 

Exchange Inc. (‘‘CME’’), DTCC Data 

Repository (U.S.) LLC (‘‘DDR’’), and ICE 

Trade Vault, LLC (‘‘ICETV’’ and, 

collectively with CME and DDR, the 

‘‘SDR Commenters’’), on its proposed 

modifications to § 49.17(d)(2) and (3).33

The SDR Commenters supported the 

Commission’s proposed modifications 

to § 49.17(d)(2) and (3) stating that 

recognizing the separate jurisdictional 

authority of another domestic regulator 

or foreign regulator would further 

appropriate information sharing 

necessary for regulatory oversight and 

global systemic risk mitigation 

purposes.34

4. Final Rules 

After considering the comments it 

received with respect to its proposed 

amendments to § 49.17(d)(2) and (3), 

and for the reason stated above in 

section II.B.2., the Commission 

continues to believe that swap data 


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35No specific Foreign Regulators are enumerated 

in CEA section 21(c)(7) or specifically identified as 

AFRs in § 49.17(b)(2). 

36To date, the Commission has not specified a 

form and manner for the application referenced in 

current § 49.17(b)(2)(i)(A). 

37 7 U.S.C. 24(c)(7). 

38The Commission expects that the applicant 

would provide a description of its scope of 

jurisdiction as part of these explanations. 

39The form of confidentiality arrangement set 

forth in proposed Appendix B to part 49 

(‘‘Confidentiality Arrangement Form’’) also would 

have required such notices. 

reported to, and maintained by, an SDR 

may be appropriately accessed by a 

domestic regulator or Foreign Regulator 

without the execution of a 

confidentiality and indemnification 

agreement (1) when the regulator is 

acting in a regulatory or supervisory 

capacity with respect to an SDR that is 

also registered with, or recognized or 

otherwise authorized by, the regulator 

and (2) with respect to swap data 

reported to such SDR pursuant to such 

regulator’s regulatory regime. The 

Commission, accordingly, is adopting 

the amendments to § 49.17(d)(2) and (3) 

as proposed. 

C. Appropriateness Determination for 

Foreign Regulators and NonEnumerated Domestic Regulators: 

Amendments to § 49.17(b) and New 

§ 49.17(h) 

1. Current Rule 

CEA section 21(c)(7) specifies U.S. 

entities to which swap data must be 

released by an SDR, provided certain 

prerequisites are satisfied. Because 

Congress has determined that access to 

SDR swap data by these entities is 

appropriate when the prerequisites are 

satisfied, no appropriateness 

determination by the Commission is 

necessary. These U.S. entities, along 

with any others the Commission 

determines to be appropriate pursuant 

to CEA section 21(c)(7)(E), are identified 

in § 49.17(b)(1) as ADRs. The current 

part 49 rules do not include a process 

for how the Commission would 

determine a domestic regulator to be 

‘‘appropriate’’ within the meaning of 

CEA section 21(c)(7)(E). 

Under current § 49.17(b)(2)(i), in order 

for a Foreign Regulator that does not 

have a current MOU with the 

Commission to be determined to be an 

AFR,35 it must file with the Commission 

an application in the form and manner 

specified by the Commission.36 Current 

§ 49.17(b)(2)(i)(B) requires that the 

application provide sufficient facts and 

procedures to permit the Commission to 

analyze whether the Foreign Regulator’s 

confidentiality procedures are 

appropriate and to satisfy the 

Commission that information provided 

by an SDR will be disclosed by the 

Foreign Regulator only as permitted by 

CEA section 8(e). 

2. Proposed Amendments: 

Determination Order Process 

The Commission proposed to 

eliminate the current filing 

requirements set forth in current 

§ 49.17(b)(2)(i) and establish new filing 

requirements in proposed new 

§ 49.17(h) that would apply to both 

Foreign Regulators and domestic 

regulators. The Commission also 

proposed to include, in § 49.17(h), CEAsection-8-related confidentiality 

considerations and the ability for the 

Commission to revisit or reassess 

appropriateness determinations. As 

proposed, new § 49.17(h) would apply 

to each Foreign Regulator regardless of 

whether there was a current MOU or 

similar information sharing arrangement 

in place between such Foreign Regulator 

and the Commission, and to any 

domestic regulator other than an ADR 

enumerated in § 49.17(b)(1)(i) through 

(vi) (‘‘Enumerated ADR’’). 

Proposed § 49.17(h)(3) specified two 

threshold requirements for a finding of 

appropriateness: (i) The requesting 

entity has in place appropriate 

safeguards to maintain the 

confidentiality of swap data received 

from an SDR; and (ii) such entity is 

acting within the scope of its 

jurisdiction in seeking access to swap 

data maintained by an SDR. Because the 

Commission stated that these 

requirements are necessary, but may or 

may not be sufficient to support an 

appropriateness determination, the 

Commission proposed to evaluate each 

filing on a case-by-case basis with 

reference to these and other factors that 

the Commission may find germane to its 

determination. The Commission 

proposed that, were it to find, based on 

information submitted to it, that an 

entity’s access to SDR swap data was 

appropriate, the Commission would 

issue an order confirming the entity’s 

status as an ADR or AFR and setting 

forth any conditions or limitations on 

access consistent with the relevant 

statutory and regulatory requirements (a 

‘‘Determination Order’’). 

The Commission also proposed in 

§ 49.17(h)(4) to be able to revisit, 

reassess, limit, suspend or revoke a 

previously issued Determination Order. 

That proposal was based on the 

Commission’s belief that it is necessary 

to reserve the authority to revisit an 

appropriateness determination, and 

potentially take one of the foregoing 

remedial actions, in order to be able to 

address situations that may arise 

subsequent to the determination, such 

as where an AFR or ADR violates the 

terms of a Determination Order or fails 

to keep SDR swap data confidential. 

3. Proposed Amendments: Factors 

Considered in Issuing a Determination 

Order 

a. Scope of Jurisdiction 

CEA section 21(c)(7) directs SDRs to 

provide swap data to regulators on a 

confidential basis pursuant to section 

8.37 The Commission interprets this 

provision to require consistency with 

the CEA section 8(e) mandate that 

information be furnished, on a 

confidential basis, only to other 

regulators acting within the scope of 

their jurisdiction. Accordingly, the 

Commission believes that an 

appropriateness determination must be 

informed by reference to a regulator’s 

jurisdiction. 

In this regard, the Commission 

proposed to add new § 49.17(h)(2), 

which would require an applicant 

seeking a Determination Order to 

provide the Commission sufficient 

information to permit the Commission 

to analyze whether the applicant is 

acting within the scope of its 

jurisdiction in seeking access to swap 

data maintained by an SDR. As part of 

this information, the Commission stated 

that it expected that an applicant would 

explain the relationship between its 

jurisdiction and its request for access to 

swap data maintained by SDRs, 

including an explanation of the 

applicant’s need for swap data to carry 

out its regulatory mandate, legal 

authority or responsibility.38

The Commission proposed in new 

§ 49.17(h)(3) that the Commission 

would not issue a Determination Order 

unless it were satisfied that an applicant 

was acting within the scope of its 

jurisdiction in seeking access to SDR 

swap data. The Commission also stated 

in the NPRM that it expected that each 

Determination Order would further 

require, as a condition of the 

appropriateness determination set forth 

therein, that a regulator that received a 

Determination Order promptly notify 

the Commission, and each SDR from 

which it received swap data, of any 

change to its jurisdiction that would 

relate to the swap data access 

requested.39 Proposed § 49.17(d)(4)(iii) 

enabled the Commission to direct SDRs 

to limit, suspend or revoke an ADR’s or 

AFR’s SDR swap data access to reflect 

the new scope of its jurisdiction, and 

required the SDRs to so limit, suspend 


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40See CEA section 21(c)(7); see also Section 

752(a) of the Dodd-Frank Act (recognizing the goal 

of effective and consistent global regulation of 

swaps). 

41 17 CFR 49.17(b)(2). 

42See also Dodd-Frank Act section 752 

(recognizing the goal of effective and consistent 

global regulation of swaps). 

or revoke such access in response to 

such Commission direction. The 

Commission expected that limiting 

access in this manner would reduce the 

risk of unauthorized or unnecessary 

disclosures because each appropriate 

regulator would have access to swap 

data only to the extent necessary to 

fulfill its amended jurisdictional 

mandate or regulatory responsibility. 

b. Robust Confidentiality Safeguards 

CEA section 21(c)(7) requires that 

SDRs make swap data available on a 

confidential basis pursuant to CEA 

section 8. Proposed § 49.17(h)(2) 

accordingly would require that an 

applicant for a Determination Order 

submit to the Commission information 

sufficient to permit the Commission to 

analyze whether the applicant employs 

appropriate confidentiality safeguards to 

ensure that swap data the applicant 

receives from an SDR would not be 

disclosed other than as permitted by the 

confidentiality arrangement required by 

proposed § 49.18(a). The Commission 

anticipated that this analysis would 

involve the Commission considering 

whether the applicant’s confidentiality 

protocols, system safeguards and 

security compliance procedures could 

be expected to ensure the 

confidentiality of the swap data, and 

whether the applicant had in place 

protections sufficient to prevent 

unauthorized intrusions into the 

systems that maintain the swap data. In 

this regard, the Commission stated in 

the NPRM that it would also expect to 

consider the applicant’s processes for 

limiting internal access to swap data to 

those persons with a need to know, as 

well as how the swap data would be 

stored and whether the swap data 

would be segregated from other 

information. 

The Commission stated in the NPRM 

its view that the confidentiality 

protections set forth in proposed 

§ 49.17(h)(2) strike an appropriate 

tradeoff between realizing the benefits 

of data access by regulators,40 and 

protecting confidential information in 

accordance with the dictates of CEA 

section 8(e), which, as described above, 

is incorporated into the access 

provisions of CEA sections 21(c)(7) and 

(d). In the NPRM, the Commission 

stated that it would consider these 

factors essential to a determination of 

appropriateness. 

c. Swap Data Sharing Considerations 

The Commission stated in the NPRM 

that other considerations not proposed 

to be codified may also contribute to the 

Commission’s appropriateness analysis. 

Although the Commission proposed to 

eliminate the current regulatory 

provision conferring AFR status on a 

Foreign Regulator with an existing MOU 

or other similar type of information 

sharing arrangement executed with the 

Commission,41 it nonetheless stated in 

the NPRM its continued belief that the 

existence of such an arrangement fosters 

a cooperative relationship and 

encourages the development of shared 

understandings related to regulatory 

responsibilities. The Commission added 

in the NPRM that, although not 

dispositive, indications of a strong 

cooperative relationship with another 

authority, as established by the 

existence of such an arrangement and 

the Commission’s experience working 

with such authority in finalizing and 

administering the arrangement, would 

likely be a factor supporting an 

appropriateness determination. The 

Commission also stated in the NPRM 

that a failure to cooperate fully or to 

comply with the terms of an existing or 

prior arrangement might be expected to 

weigh against an appropriateness 

determination. 

Similarly, when assessing 

appropriateness, the Commission 

expected to consider whether it receives 

access to swap data maintained by trade 

repositories subject to the applicant’s 

jurisdiction. The Commission stated in 

the NPRM that it is mindful of the 

Dodd-Frank Act’s encouragement of 

coordination and cooperation with 

foreign regulatory authorities.42 The 

Commission also stated in the NPRM its 

belief that increased data access by 

regulators has the potential to provide 

the Commission and other authorities 

with more complete information with 

which to monitor risk exposures and 

should be expected to promote global 

market stability through enhanced 

regulatory transparency. Accordingly, 

the Commission stated in the NPRM, it 

would view the following favorably in 

considering appropriateness: (i) 

Commission access to swap data 

maintained by trade repositories in a 

foreign regulator’s jurisdiction; (ii) an 

arrangement to assist the Commission in 

obtaining data from other jurisdictions; 

and (iii) a history of assistance from a 

foreign regulator. 

4. Proposed Amendments: Other 

Matters Regarding the Determination 

Order Process 

The Commission stated in the NPRM 

its preliminary belief that the 

Determination Order process and factors 

discussed above offer a reasonable 

approach to providing requesting 

entities access to SDR swap data based 

on clearly articulated factors and any 

additional considerations or 

circumstances the Commission may 

deem relevant on a case-by-case basis. 

The Commission added that both the 

required factors and the additional 

considerations support the mandates of 

CEA sections 8, 21(c)(7) and 21(d) and 

are consistent with the express intent of 

Congress that the Commission 

coordinate and cooperate with foreign 

regulatory authorities on matters related 

to the regulation of swaps. Through the 

issuance of Determination Orders, the 

Commission expected to be able to 

impose appropriate conditions or 

restrictions on an entity’s access to SDR 

swap data such that the entity’s access 

would be linked to its jurisdictional 

scope. Pursuant to proposed 

§ 49.17(h)(3), the Commission could, in 

its discretion, issue a Determination 

Order of limited duration. The 

Commission stated in the NPRM that it 

would expect SDRs to take into account 

any conditions or restrictions contained 

in a Determination Order when 

providing access to swap data to an 

ADR or AFR. 

The Commission further believed it 

appropriate to make the process and 

factors proposed in § 49.17(h) applicable 

to any domestic entities that are not 

enumerated as ADRs in § 49.17(b)(1)(i) 

through (vi), as scope of jurisdiction and 

confidentiality considerations are 

equally applicable to U.S. entities, and 

drafted proposed § 49.17(h) accordingly. 

5. Final Rules 

After considering the comments 

received in the SDR Letter, and for the 

reasons stated in the NPRM, stated 

above in sections II.C.2.–4. and stated in 

this section, the Commission is adopting 

amendments to § 49.17(b) and new 

§ 49.17(h) as proposed. 

The Commission requested comment 

on all aspects of proposed § 49.17(h), 

particularly on whether the proposed 

regulatory and other factors are 

sufficient to determine whether access 

to SDR swap data is appropriate. The 

Commission received one comment in 

response, from the SDR Commenters. 

The SDR Commenters expressed 

support for the § 49.17(h) 

appropriateness determination process 

proposed in the NPRM with respect to 


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43SDR Letter at 3. 

44SDR Letter at 7. 

45As proposed, § 49.17(d)(5) did not require that 

the Commission direct the SDR in writing to take 

any of such actions. 

46Proposed § 49.17(h)(4) stated that the 

Commission reserves the right, in connection with 

any appropriateness determination with respect to 

an Appropriate Domestic Regulator or Appropriate 

Foreign Regulator, to revisit, reassess, limit, 

suspend or revoke such determination consistent 

with the Act. Proposed § 49.17(d)(5) stated that an 

SDR shall, as directed by the Commission, limit, 

suspend or revoke such access should the 

Commission limit, suspend or revoke the 

appropriateness determination for such ADR or 

AFR or otherwise direct the SDR to limit, suspend 

or revoke such access. 

47See CEA section 21(c)(7), 7 U.S.C. 24a(c)(7). 

48The Commission stated in the NPRM that, 

consistent with the current recordkeeping 

requirements for SDRs in § 45.2(f), SDRs are 

required to maintain records of all information 

related to the initial and all subsequent requests for 

swap data from ADRs and AFRs. The Commission 

stated that appropriate records would include, at a 

minimum, the identity of the ADR or AFR accessing 

the swap data, the date, time and substance of the 

request for access, confirmation that the request is 

consistent with the scope of the regulator’s 

jurisdiction, and copies of all swap data provided 

by the SDR in connection with the request for 

access. The Commission added that, pursuant to 

§ 1.31, SDRs are required to maintain such records 

for a period of no less than five years after the date 

of such request and must provide this information 

to the Commission upon request. 

49The scope of jurisdiction would have been 

described in Exhibit A to the form of confidentiality 

arrangement set forth in proposed Appendix B to 

part 49. 

Foreign Regulators and non-enumerated 

domestic regulators, including the 

requirement that such regulators file an 

application with the Commission to be 

determined to be appropriate recipients 

of SDR swap data. The SDR 

Commenters added that they ‘‘believe 

that a[n] MOU or other information 

sharing arrangement alone, by [its] 

nature, ha[s] the potential for imprecise 

language and bespoke arrangements that 

would not provide sufficient indication 

of a regulator’s ‘appropriateness.’ ’’ 43

The SDR Commenters also suggested 

that the Commission revise proposed 

§ 49.17(h)(4), which provides that the 

Commission reserves the right to revisit, 

reassess, limit, suspend or revoke any 

appropriateness determination with 

respect to an ADR or AFR, consistent 

with the CEA, to require the 

Commission to provide a written notice 

to SDRs of such action to ensure that all 

SDRs are aware of any changes in status 

with respect to an appropriateness 

determination.44 The Commission 

agrees with the substance of the 

‘‘written notice’’ comment but believes 

that this suggestion should be 

incorporated elsewhere in the 

Commission’s regulations. Specifically, 

because proposed § 49.17(h)(4) merely 

addresses the Commission’s right to 

revisit, reassess, limit, suspend or 

revoke any appropriateness 

determination, whereas proposed 

§ 49.17(d)(5) required an SDR to take 

such action as directed by the 

Commission,45 the Commission believes 

that proposed § 49.17(d)(5), rather than 

proposed § 49.17(h)(4), should be 

amended in response to the ‘‘written 

notice’’ comment.46 Accordingly, the 

Commission is adopting § 49.17(d)(5) as 

proposed but with a modification to 

require that any Commission direction 

to an SDR specified therein be in 

writing. 

Accordingly, for the reasons stated in 

the NPRM, stated above in sections 

II.C.2.–4. and stated in this section, the 

Commission is adopting amendments to 

§ 49.17(b) and new § 49.17(h) as 

proposed. 

D. Amendments to § 49.17(d)(4): SDR 

Notice and Verification Obligations 

1. Proposed Amendments 

CEA section 21(c)(7) requires each 

SDR to notify the Commission of a swap 

data request received from an ADR or 

AFR.47 Currently, this statutory 

requirement is implemented in 

§ 49.17(d)(4)(i), which provides that an 

SDR must promptly notify the 

Commission regarding ‘‘any’’ request 

received by an ADR or AFR to gain 

access to swap data maintained by the 

SDR. 

To reduce the burden on SDRs and 

provide greater operational efficiency 

consistent with the intent of CEA 

section 21(c)(7), the Commission 

proposed to amend the SDR notification 

requirement in current § 49.17(d)(4)(i) to 

require an SDR to notify the 

Commission (i) at the time that it 

receives the first request for access to 

swap data from a particular ADR or AFR 

and (ii) at any time that a swap data 

request from an ADR or AFR does not 

comport with the scope of the ADR’s or 

AFR’s jurisdiction, as described in the 

confidentiality arrangement required by 

proposed § 49.18(a). As proposed, the 

amendment provided that, upon 

receiving either such request for data by 

a particular ADR or AFR, the SDR 

would be required to provide prompt 

electronic notification to the 

Commission of the request, in a format 

specified by the Secretary of the 

Commission, pursuant to proposed 

§ 49.17(d)(4)(ii). The SDR would be 

required to keep such notification and 

related requests confidential consistent 

with the requirements of CEA sections 

21(c)(6) and (7) and related regulatory 

requirements set forth in §§ 49.16 and 

49.17. 

The Commission stated in the NPRM 

its belief that the proposed approach to 

SDR notification supports the 

Commission’s need to be aware of who 

is able to access SDR swap data and 

what data has been accessed, while 

eliminating potentially costly, unwieldy 

and inefficient notice of every swap data 

request. Under the proposal, the 

Commission would be notified that a 

particular ADR or AFR has requested 

access to SDR swap data and would be 

able to examine SDR records of the 

ADR’s or AFR’s individual swap data 

requests, and the swap data provided, as 

the Commission deemed necessary.48

The Commission also proposed to 

amend § 49.17(d)(4) by adding new 

paragraph (iii) to require each SDR that 

receives a request for access to its swap 

data from an ADR or AFR to determine, 

prior to providing such access, that the 

request is consistent with the scope of 

the ADR’s or AFR’s jurisdiction, as 

described in the confidentiality 

arrangement required by proposed 

§ 49.18(a).49 This verification would 

need to incorporate any subsequent 

changes to such scope of jurisdiction. 

The Commission also proposed to 

require an ADR or AFR that has 

executed a confidentiality arrangement 

with the Commission pursuant to 

§ 49.18(a) and provided such 

confidentiality arrangement to one or 

more SDRs to notify the Commission 

and each such SDR of any change to 

such ADR’s or AFR’s scope of 

jurisdiction as described in such 

confidentiality arrangement. 

Additionally, the proposal enabled the 

Commission to direct an SDR to 

suspend, limit, or revoke access to swap 

data maintained by such SDR based on 

any such change to an ADR’s or AFR’s 

scope of jurisdiction, and required that, 

if so directed, such SDR must suspend, 

limit, or revoke such access. 

Proposed § 49.17(d)(4)(iv) required 

SDR verification only once with respect 

to a request for ongoing or recurring 

access to particular data. Additionally, 

if there was a change in the request, the 

ADR or AFR would be obligated to make 

a new determination pursuant to 

proposed § 49.17(d)(4)(iii). The 

Commission recognized that the 

proposed requirement would impose a 

burden on SDRs but noted that SDRs are 

obliged by CEA section 21(c)(7) to 

provide access ‘‘pursuant to section 8’’ 

of the CEA, which, as discussed above, 

the Commission interprets as requiring 

a jurisdictional nexus to the information 

requested, consistent with CEA section 

8(e). The Commission stated that it 

believed that, in such circumstances, 

SDRs must take a role in ensuring 


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50SDR Letter at 4. Proposed § 49.17(d)(4)(i) states 

that a registered SDR shall notify the Commission 

promptly after receiving any request that does not 

comport with the scope of the ADR’s or AFR’s 

jurisdiction, as described and appended to the 

confidentiality arrangement required by proposed 

§ 49.18(a). 

51SDR Letter at 3. 

52SDR Letter at 2. 53SDR Letter at 4. 

54Commission Regulation 49.12(a) requires SDRs 

to maintain their records in accordance with the 

requirements of part 45 of the Commission’s 

regulations regarding the swap data required to be 

reported to SDRs. Commission Regulation 45.2(f) 

requires each SDR to keep complete records of all 

SDR-related business activities. 

55NPRM at 8375, n.42; see also, NPRM at 8381 

(Paperwork Reduction Act discussion of 

recordkeeping burdens). 

56SDR Letter at 6. 

57SDR Letter at 5–6. 

58SDR Letter at 6. 

compliance with those statutory 

restrictions of CEA section 21(c)(7). 

2. Final Rules 

The Commission received several 

comments from the SDR Commenters on 

the proposed amendments to 

§ 49.17(d)(4). For the reasons stated 

above in section II.D.1. and stated in 

this section II.D.2., the Commission is 

adopting § 49.17(d)(4)(i) through (iv) as 

proposed, with one exception. 

Specifically, the Commission is 

adopting § 49.17(d)(4)(iii) with one 

modification suggested by the SDR 

Commenters, as discussed below in 

section II.D.2.c.iii. In response to the 

SDR Commenters’ comments, the 

Commission is also clarifying the 

guidance provided in the NPRM on 

Federal Register page 8,381, as 

discussed below in section II.D.2.a.ii. 

a. § 49.17(d)(4)(i) 

i. Notices of Initial Access Requests and 

Requests Outside the Scope of 

Jurisdiction 

The SDR Commenters supported the 

proposed amendment to the notification 

provisions in current § 49.17(d)(4)(i) to 

require SDRs to notify the Commission 

only of an initial ADR or AFR request 

for access to swap data (rather than 

every request for swap data), stating that 

this would reduce reporting burdens 

and increase operational efficiencies. 

However, the SDR Commenters stated 

that ‘‘subsection § 49.17(d)(4)(i) and (iii) 

should be modified to remove the 

requirement that an SDR determine 

whether swap data to which the ADR or 

AFR seeks access is within the thencurrent scope of such ADR’s or AFR’s 

jurisdiction.’’ 50 The SDR Commenters 

claimed that they ‘‘are not the 

appropriate entities to determine the 

scope of a regulator’s jurisdiction’’ 

because ‘‘[t]hey do not possess the 

means to do so correctly with current 

data fields’’ 51 and that the scope of 

jurisdiction determination ‘‘must rest 

solely with the Commission.’’ 52

Accordingly, the SDR Commenters 

insisted that their responsibilities ‘‘must 

be limited to providing access to the 

ADRs and AFRs in accordance with the 

specific, appended jurisdictional 

information clearly set forth in the 

documents describing the 

confidentiality arrangements negotiated 

by the Commission pursuant to 

§ 49.18.(a).’’ 53

The Commission declines to modify 

§ 49.17(d)(4)(i) to provide that an SDR 

does not need to determine whether 

swap data to which an ADR or AFR 

seeks access is within the then-current 

scope of such ADR’s or AFR’s 

jurisdiction. As noted above, SDRs are 

obliged by CEA section 21(c)(7) to 

provide access ‘‘pursuant to section 8’’ 

of the CEA, which the Commission 

interprets as requiring a jurisdictional 

nexus to the information requested, 

consistent with CEA section 8(e). 

However, for the reasons discussed 

below in response to the SDR 

Commenters’ comments on proposed 

§ 49.17(d)(4)(iii) in relation to 

determining whether an ADR’s or AFR’s 

request for swap data is within the 

scope of its jurisdiction, the 

Commission expects SDRs’ role in 

applying § 49.17(d)(4)(i) to be 

straightforward. As discussed below, the 

Commission will ensure that each ADR 

and AFR seeking swap data access 

provides each SDR from which it seeks 

such access a description, appended to 

the confidentiality arrangement required 

by proposed § 49.18(a), of the ADR’s or 

AFR’s scope of jurisdiction in a form 

that will lend itself to SDRs being 

readily able to determine whether a 

particular data request falls within the 

described scope of jurisdiction. As the 

Commission will have previously 

reviewed the described scope of 

jurisdiction before it is provided to an 

SDR as part of the confidentiality 

arrangement required by proposed 

§ 49.18(a), the SDR’s role in ensuring 

that ADRs’ and AFRs’ swap data access 

is limited to swap data within the thencurrent scope of such ADR’s or AFR’s 

jurisdiction would be limited to 

appropriately circumscribing the scope 

of the swap data to which an ADR or 

AFR obtains access to match the ADR’s 

or AFR’s scope of jurisdiction, as 

described in the appendix to the 

confidentiality arrangement required by 

§ 49.18(a), and notifying the 

Commission if the SDR determines that 

a particular data request does not 

comport with the described scope of 

jurisdiction. 

Finally, § 49.17(d)(4)(i) requires an 

SDR to notify the Commission of initial 

requests for data by an ADR or AFR and 

of requests for data that do not comport 

with the scope of jurisdiction of an ADR 

or AFR. These notifications are required 

to be provided, pursuant to 

§ 49.17(d)(4)(ii), in the format specified 

by the Secretary of the Commission. In 

response to a request from the SDR 

Commenters to specify that format, the 

Secretary of the Commission is now 

specifying that these notices should be 

provided to Commission staff at the 

email address dmodataandreporting@

cftc.gov. 

ii. Recordkeeping 

Proposed § 49.17(d)(4)(i) required 

each SDR to maintain records, pursuant 

to § 49.12,54 of the details of an ADR’s 

or AFR’s initial request for SDR swap 

data access and of all subsequent 

requests by such ADR or AFR for such 

access. In the NPRM, the Commission 

explained that an SDR’s obligation to 

maintain records of all information 

related to the initial and all subsequent 

requests by an ADR or AFR for swap 

data access, pursuant to proposed 

§ 49.17(d)(4)(i) and existing § 45.2(f), 

would require the retention of records 

that included, at a minimum, the 

identity of the ADR or AFR accessing 

the swap data, the date, time and 

substance of the request for access, 

confirmation that the request is 

consistent with the scope of the 

regulator’s jurisdiction, and copies of all 

data reports and other aggregation of 

data provided in connection with the 

request for access.55

The SDR Commenters stated that ‘‘the 

proposed requirement for SDRs to 

maintain copies of data reports and 

other aggregation of data provided in 

connection with the request [f]or access 

should be amended to avoid imposing 

unnecessary costs.’’ 56 The SDR 

Commenters also requested that 

‘‘additional detail as to what constitutes 

the ‘details of such initial request and of 

all subsequent requests’ be included in 

the rule itself rather than merely 

mentioned in the preamble.’’ 57 The SDR 

Commenters characterized the 

recordkeeping requirements of proposed 

§ 49.17(d)(4)(i) as requiring that SDRs 

maintain data reports as financially 

burdensome, challenging to implement, 

and potentially decreasing information 

security, because the requirements 

could require an SDR ‘‘to propagate a 

given data set more than once.’’ 58

As an alternative to maintaining such 

reports, the SDR Commenters suggested 

that they create pre-formatted data 


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59 Id. 

60 Id. 

61 Id. 

62Brief summaries of those ex parte 

communications are available on the Commission’s 

website at https://comments.cftc.gov/ 

PublicComments/CommentList.aspx?id=1777. 

63The swap data provided in the pre-formatted 

reports or through the Web-based portals would be 

limited to swap data within the particular ADR’s or 

AFR’s scope of jurisdiction, as described in the 

confidentiality arrangement required by § 49.18(a). 

64See, e.g., NPRM at 8385 (stating that the 

Commission is proposing not to specify a particular 

means of ADRs and AFRs accessing swap data) and 

8386 (stating that the Commission expects that 

SDRs would choose the lowest cost means of access 

consistent with their statutory obligation to provide 

ADRs and AFRs access to swap data and other 

constraints). 

65See SDR Letter at 6. 

66Section 712(a)(1) of the Dodd-Frank Act 

provides that before commencing any rulemaking or 

issuing an order regarding swap data repositories, 

the Commission shall consult and coordinate to the 

extent possible with the Securities and Exchange 

Commission and the prudential regulators for the 

purposes of assuring regulatory consistency and 

comparability. 

67SDR Letter at 2. 

68 Id. at 3. 

69 Id. at 4. 

70 Id. 

71 Id. 

72 Id. 

73 Id. 

reports and make them available for 

download by ADRs and AFRs ‘‘so that 

the record of access to such reports 

[would] be easily identifiable, in lieu of 

maintaining logs of queries and query 

conditions . . . .’’ 59 The SDR 

Commenters added that, if the 

Commission adopted their alternative, 

‘‘the parameters of the reports and the 

logic which is used to populate the 

reports is all that should have to be 

maintained.’’ 60 The SDR Commenters 

contended that the Commission should 

require only ‘‘the saving of metadata 

around reports rather than the actual 

reports[.]’’ 61

After the NPRM was published in the 

Federal Register, Commission staff 

discussed the SDR Commenters’ 

recordkeeping concerns, as set out in 

the SDR Letter, with the SDRs.62 Based 

on those discussions, the Commission 

understands that the SDR Commenters 

plan to provide swap data access to 

ADRs and AFRs in one of two ways: (1) 

Via pre-formatted reports that the SDR 

Commenters would make available for 

download by ADRs and AFRs or send to 

ADRs and AFRs, in each case on a 

regular basis; or (2) via a Web-based 

portal through which ADRs and AFRs 

could conduct customized searches of 

swap data.63 In those discussions, the 

SDR Commenters explained that they 

would not consider it unduly 

burdensome to maintain records of the 

pre-formatted reports (if they provide 

ADRs and AFRs access to swap data via 

pre-formatted reports) or records of both 

the parameters of the permitted access 

and the queries (if they provide such 

access via Web portal). 

In response to the SDR Letter, and for 

the reasons explained by the SDR 

Commenters and described in this 

section, the Commission confirms that, 

as represented by the SDRs and 

consistent with the reasoning discussed 

in the NPRM,64 either of these means of 

providing swap data access to ADRs and 

AFRs would be acceptable. The 

Commission also confirms that SDRs 

may satisfy their recordkeeping duties 

under § 49.17(d)(4)(i) by maintaining 

records of, as applicable: (1) Their preformatted swap data reports; or (2)(a) 

the parameters of Web portal swap data 

access and (b) queries run by ADRs and 

AFRs using such access. 

iii. Aggregated Data 

The SDR Commenters also expressed 

concerns that the Commission’s 

statement that proposed § 49.17(d)(4)(i) 

and existing § 42.5 would require 

retention of copies of all other 

aggregation of data provided in 

connection with the request for access 

was intended to impose a requirement 

to provide aggregated data to ADRs or 

AFRs. To address that concern, the SDR 

Commenters asked the Commission to 

specify that SDRs would not be required 

to provide ADRs or AFRs with 

aggregated data and that SDRs are 

required to provide only raw swap 

transaction data, in the form of, for 

example, pre-formatted reports or via 

Web-based portal access.65

In response to the foregoing comment, 

and for the reasons explained by the 

SDR Commenters and described in this 

section, the Commission clarifies that 

SDRs are required to provide ADRs and 

AFRs only raw swap transaction data in 

the form in which SDRs maintain such 

data. The Commission further clarifies 

that SDRs are not required to aggregate 

or manipulate raw swap transaction 

data to provide it to ADRs or AFRs in 

customized formats or reports requested 

thereby. Through its consultations with 

certain ADRs as required by section 

712(a)(1) of the Dodd-Frank Act,66 the 

Commission understands that those 

ADRs enumerated in § 49.17(b)(1)(i) 

through (vi) that are interested in 

accessing SDR swap data are capable of 

receiving such data and manipulating 

and analyzing such data using their own 

systems. 

After considering the comments on 

proposed § 49.17(d)(4)(i), for the reasons 

described above, the Commission is 

adopting the amendments to 

§ 49.17(d)(4)(i) as proposed. 

b. § 49.17(d)(4)(ii) 

The Commission proposed only 

minor, clarifying changes to 

§ 49.17(d)(4)(ii) and did not receive any 

comments thereon. The Commission is 

adopting the amendments to 

§ 49.17(d)(4)(ii) as proposed. 

c. § 49.17(d)(4)(iii) 

i. Scope of an ADR’s or AFR’s 

Jurisdiction 

The SDR Commenters commented 

that ‘‘the determination as to scope of 

jurisdiction must rest solely with the 

Commission’’ 67 because ‘‘[t]he SDRs do 

not have, and are not required to have[,] 

information sufficient to determine 

whether requested swap data is within 

the ADR[’s] or AFR[’]s scope of 

jurisdiction.’’ 68 The SDR Commenters 

contended that, if the Commission 

wants the SDRs to play a role in 

determining whether swap data is 

subject to the jurisdiction of any 

particular ADR or AFR, the Commission 

would need to ‘‘amend the current Part 

43 and Part 45 fields to provide the 

SDRs with the basis to make these 

determinations.’’ 69 The SDR 

Commenters added that they ‘‘should 

not be expected to make interpretations 

about jurisdictional questions from 

ambiguous data points.’’ 70

On this point, the SDR Commenters 

explained that ‘‘[t]he current Part 43 and 

Part 45 data fields do not yield 

information that would allow an SDR to 

identify trades that fall within an 

ADR[’s] or AFR’s jurisdiction 

definitively.’’ 71 They recommended 

that ADRs and AFRs ‘‘should be 

required to provide a[ ] . . . list of Part[ ] 

43 and 45 data fields (e.g., legal entity 

identifiers (‘‘LEIs’’) of the reporting 

counterparty and non-reporting 

party[and] the unique product identifier 

(‘‘UPI’’)) and parameters for such data 

fields’’ 72 that would clearly indicate to 

the SDRs which swaps fall within an 

ADR’s or AFR’s jurisdiction. The SDR 

Commenters contended that such a list 

of Part 43 and 45 data fields is necessary 

because ‘‘no Part 43 or 45 data fields 

. . . by themselves identify swaps that 

fall within an ADR[’s] or AFR’s 

jurisdiction.’’ 73

The SDR Commenters contended that 

the benefits of their proposed approach 

would include ensuring that SDRs grant 

access in a consistent manner and that 

the security controls established by an 

SDR according to Part 43 or 45 

parameters would prevent access to 

swap data outside the scope of an ADR’s 

or AFR’s jurisdiction. The SDR 


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74 Id. at 4 and 5. 

75The SDR Commenters’ approach, by permitting 

automation, could expedite swap data access. The 

SDR Commenters’ approach could also eliminate 

the potential for inconsistent determinations by 

different SDRs. 

76 In addition, if the scope of an ADR’s or AFR’s 

jurisdiction supports receiving all swap data with 

respect to entities over which an ADR or AFR 

exercises oversight, the ADR or AFR may not need 

to use product identifiers at all—it may be able to 

use LEIs alone to describe the scope of its 

jurisdiction. 

77For example, the SDR Letter noted that ‘‘an 

indication of whether a swap is a mixed swap’’ 

could constitute a part 43 or 45 data field that 

‘‘determine[s] . . . which swaps fall within an ADR 

or AFR’s jurisdiction.’’ SDR Letter at 4. Also, in ex 

parte communications following the publication of 

the NPRM, the SDR Commenters acknowledged that 

other fields could potentially be relevant as well. 

Commenters recommended the 

following changes to the proposed 

regulations to effectuate their proposed 

approach: 

• Removing proposed 

§ 49.17(d)(4)(iv) completely; 

• removing the requirement in 

proposed § 49.17(d)(4)(i) and (iii) that an 

SDR determine whether swap data to 

which an ADR or AFR seeks access is 

within the then-current scope of such 

ADR’s or AFR’s jurisdiction; 

• replacing the ‘‘negative 

requirement’’ not to provide access 

unless such a determination has been 

made with a ‘‘positive requirement’’ to 

provide access that comports with the 

jurisdictional determination made by 

the Commission, which determination 

is clearly spelled out in the 

confidentiality arrangement; 

• modifying paragraph 

§ 49.17(d)(4)(iii) to state that any 

requested change in an ADR’s or AFR’s 

scope of jurisdiction, as described in the 

confidentiality arrangement required by 

proposed § 49.18(a), should be agreed to 

between the Commission and the ADR 

or AFR and the information appended 

to the confidentiality arrangement 

should be amended accordingly and 

provided to the SDRs for 

implementation; and 

• revising the description of Exhibit 

A in the confidentiality arrangement to 

state that the ‘‘description of scope of 

jurisdiction’’ must include a list of part 

43 and part 45 fields and specific 

parameters.74

After considering the SDR 

Commenters’ comments and consulting 

with certain ADRs as required by 

section 712(a)(1) of the Dodd-Frank Act, 

the Commission agrees with the SDR 

Commenters that SDRs should not be 

responsible for determining the scope of 

an ADR’s or AFR’s jurisdiction, for the 

reasons explained by the SDR 

Commenters and described in this 

section. The Commission believes, 

however, that SDRs should be 

responsible for limiting ADRs’ and 

AFRs’ access to swap data to those swap 

data within ADRs’ and AFRs’ thencurrent scopes of jurisdiction, as 

described in the appendix to the 

confidentiality arrangement required by 

§ 49.18(a). As noted above, SDRs are 

obligated by CEA section 21(c)(7) to 

provide access ‘‘pursuant to section 8’’ 

of the CEA, which the Commission 

interprets as requiring a jurisdictional 

nexus to the information requested, 

consistent with CEA section 8(e). 

For the swap data sharing goal of CEA 

section 21(c)(7) to be achieved, an 

ADR’s or AFR’s description of its scope 

of jurisdiction must allow the SDRs to 

establish objective parameters for 

determining whether a particular data 

request falls within such scope of 

jurisdiction, without undue obstacles. 

The Commission believes that a system 

requiring legal analysis by the SDRs (a 

possible result, depending on how 

ADRs and AFRs describe their scopes of 

jurisdiction) for each ADR/AFR swap 

data request is impractical at best and 

could lead to very slow data access and 

disparate results across SDRs. 

Consequently, the Commission supports 

the spirit of the SDR Commenters’ 

proposal that relevant Part 43/45 data 

fields could be used to assist in 

clarifying an ADR’s or AFR’s scope of 

jurisdiction, for purposes of SDR swap 

data access.75

The Commission intends to review 

each ADR’s and AFR’s description of its 

scope of jurisdiction and ensure that 

such descriptions are presented in the 

confidentiality arrangement in a form 

SDRs can readily adapt to SDRdeveloped swap data reports and/or 

search parameters. The Commission 

also interprets CEA section 21(c)(7) as 

imposing on SDRs the duty to limit 

ADRs’ and AFRs’ access to swap data to 

those swap data within ADRs’ and 

AFRs’ scope of jurisdiction. The 

description of an ADR’s or AFR’s scope 

of jurisdiction will be appended to the 

confidentiality arrangement that is 

executed between the ADR or AFR and 

the Commission and provided to SDRs. 

An SDR’s duty with respect to this 

description of the ADR’s or AFR’s scope 

of jurisdiction is to ensure that the swap 

data provided to the ADR or AFR is 

limited to those records that fall within 

the description appended to the 

confidentiality arrangement. For 

example, if the description is based on 

a list of LEIs representing entities that 

a particular ADR regulates, then the 

SDR’s duty would be to provide all 

swap data associated with the fields in 

which those LEIs appear (e.g., the fields 

associated with counterparty 

identifiers), as those fields are set forth 

in the description provided by the ADR. 

As the SDR Commenters acknowledged 

in discussions with Commission staff, 

this would make fulfilling their 

obligations under CEA section 21(c)(7) 

and § 49.17(d)(4), as proposed, 

straightforward to apply. 

The Commission anticipates that, as a 

practical matter, ADRs and AFRs 

generally will describe their thencurrent scopes of jurisdiction, as 

appended to the confidentiality 

arrangement required by § 49.18(a), in 

terms of LEIs and possibly also UPIs or 

other product identifiers. Although 

there may be some limitations of using 

LEIs and product identifiers (e.g., in 

limited instances where blank or 

incorrect data entries remain in LEI 

fields, LEIs are masked in a number of 

cases to reflect certain other 

jurisdictions’ privacy law limits on 

disclosure, and the Commission has yet 

to designate a UPI and product 

classification system), the Commission 

believes these data elements represent 

the most useful method of describing 

ADRs’ and AFRs’ scopes of 

jurisdiction.76

It also is possible that an ADR or AFR 

will be able to convey its scope of 

jurisdiction without using part 43 or 

part 45 data fields in a way that SDRs 

will be able to easily apply. The SDR 

Letter itself acknowledged the 

possibility that other part 43 or part 45 

data fields may be relevant in describing 

ADRs’ and AFRs’ scopes of 

jurisdiction.77 For example, it is 

conceivable that an ADR’s scope of 

jurisdiction may include all swap data 

maintained at SDRs (though the 

Commission does not anticipate that 

this will be the case with respect to 

most ADRs). In such case, it would not 

be necessary to use part 43, part 45 or 

any other swap data fields to delineate 

the scope of an ADR’s or AFR’s 

jurisdiction. For the foregoing reasons, 

the Commission declines to specifically 

require the use of part 43 or part 45 data 

fields to describe an ADR’s or AFR’s 

scope of jurisdiction. 

The Commission also declines to act 

on the SDR Commenters’ request to 

delete proposed § 49.17(d)(4)(iv), which 

provides that SDRs need only make a 

jurisdictional determination with 

respect to an ADR’s or AFR’s swap data 

access request once for a recurring 

request and once each time the 

parameters of the access requests 

change. The SDR Commenters 

expressed support in the SDR Letter for 

that single determination concept and 

appear to have requested the deletion of 


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78See SDR Letter at 4. 

79The Commission expects each ADR and AFR to 

also notify (in writing) the Commission and each 

SDR from which the ADR or AFR receives swap 

data of proposed changes to the ADR’s or AFR’s 

jurisdiction. With such advance notice, the 

Commission would seek to consider the 

implications, if any, of such changes, if finalized as 

proposed, for the scope of SDR swap data to which 

the ADR or AFR could have access. With suitable 

advance notice from the ADR or AFR, the SDRs 

could implement such changes contemporaneously 

with the time an ADR’s or AFR’s scope of 

jurisdiction changes. 

80SDR Letter at 7. 

81As discussed above, the Commission is not 

mandating that SDRs perform an analysis of an 

ADR’s or AFR’s scope of jurisdiction. Instead, the 

Commission is obligating SDRs to apply the scope 

of jurisdiction as defined in the confidentiality 

arrangement required by § 49.18(a). 

proposed § 49.17(d)(4)(iv) because it 

would impose a jurisdictional 

determination requirement on SDRs. As 

explained above, however, the 

requirement for an SDR to ensure that 

a data access request is within the thencurrent scope of an ADR’s or AFR’s 

jurisdiction, as described in an 

appendix to the confidentiality 

arrangement required by § 49.18(a), is 

required by statute and should impose 

a minimal burden on SDRs. 

For the reasons described below in 

section II.D.2.c.ii., the Commission 

declines to modify proposed 

§ 49.17(d)(4)(iii) to state that any change 

in an ADR’s or AFR’s swap data access 

based on a change in its scope of 

jurisdiction should be agreed to between 

the Commission and the ADR or AFR, 

and the jurisdictional description 

appended to the confidentiality 

arrangement should be amended 

accordingly and provided to the SDRs 

for implementation. 

ii. Changes to an ADR’s or AFR’s Scope 

of Jurisdiction 

The SDR Commenters stated that the 

Commission should amend 

§ 49.17(d)(4)(iii) to require that the 

Commission and an ADR or AFR agree 

to any change to the SDR swap data that 

an ADR or AFR may access based on a 

change in the ADR’s or AFR’s scope of 

jurisdiction, which should then be 

reflected in an updated confidentiality 

arrangement provided to the SDRs.78

The Commission believes 

§ 49.17(d)(4)(iii), as proposed, addresses 

the SDR Commenters’ comment. The 

first sentence states that an SDR shall 

not grant an ADR or AFR access to swap 

data maintained by the SDR unless the 

SDR has determined that the swap data 

to which the ADR or AFR seeks access 

is within the then-current scope of such 

ADR’s or AFR’s jurisdiction, as 

described and appended to the 

confidentiality arrangement required by 

§ 49.18(a). Accordingly, once an SDR 

receives that jurisdictional description, 

it can rely on that description until it 

either receives a new jurisdictional 

description or is directed by the 

Commission to suspend, limit, or revoke 

an ADR’s or AFR’s swap data access. 

The second sentence of 

§ 49.17(d)(4)(iii), as proposed, requires 

that each ADR or AFR that has executed 

a confidentiality arrangement with the 

Commission pursuant to § 49.18(a) and 

provided it to one or more SDRs shall 

notify the Commission and each such 

SDR of any change to such ADR’s or 

AFR’s scope of jurisdiction, as described 

in such confidentiality arrangement. 

This puts the burden on each ADR and 

AFR to inform the Commission, and 

each SDR from which an ADR and AFR 

receives swap data, of changes to such 

ADR’s or AFR’s jurisdiction.79 The 

Commission would review any such 

changes, which the Commission expects 

will be in the form of an updated 

jurisdictional description and, unless 

the Commission found an error or other 

issue in the updated jurisdictional 

description, expects to advise the 

relevant ADR or AFR that it could 

provide the relevant SDRs the updated 

scope of jurisdiction description. 

If the ADR’s or AFR’s scope of 

jurisdiction were to become more 

narrow, the Commission could use its 

authority pursuant to the third sentence 

of proposed § 49.17(d)(4)(iii) to direct 

the relevant SDRs to suspend, limit, or 

revoke access to swap data maintained 

by such SDR based on any such change 

to such ADR’s or AFR’s scope of 

jurisdiction, in which case such SDR 

shall so suspend, limit, or revoke such 

access. If the ADR’s or AFR’s scope of 

jurisdiction were to expand, as a 

practical matter, the ADR or AFR could 

not obtain swap data relevant to such 

expanded jurisdiction until the SDRs 

could update the parameters of their 

means of providing access accordingly, 

which the Commission would expect 

them to do no later than the earlier of 

(1) the earliest date such SDR, 

exercising commercially reasonable 

efforts in light of its obligations under 

the CEA and the Commission’s 

regulations, is able to update the 

parameters of swap data access to match 

the ADR’s or AFR’s new scope of 

jurisdiction and (2) 180 days after the 

SDR receives those new parameters. 

iii. Written Notices 

The SDR Commenters contended that 

‘‘[p]roposed § 49.17(d)(4)(iii) should 

specify that any request by the 

Commission to the SDR to suspend, 

limit, or revoke access to swap data 

should be provided in writing.’’ 80 The 

Commission agrees that such an 

important action should be provided in 

writing to avoid misunderstandings and 

to provide a record on which SDRs can 

rely. Accordingly, § 49.17(d)(4)(iii), as 

adopted, provides that an SDR is 

required to suspend, limit, or revoke an 

ADR’s or AFR’s access to the swap data 

maintained by such SDR only if the 

Commission communicates such 

instruction to the SDR in writing. 

d. § 49.17(d)(4)(iv) 

The Commission proposed in 

§ 49.17(d)(4)(iv) that an SDR need not 

make the scope of jurisdiction 

determination required pursuant to 

proposed § 49.17(d)(4)(iii) more than 

once with respect to a recurring swap 

data request but that, if such request 

changed, the SDR would have to make 

a new determination pursuant to 

§ 49.17(d)(4)(iii). The SDR Commenters 

requested that the Commission remove 

proposed § 49.17(d)(4)(iv), but the 

Commission understands this request to 

have been rooted in the SDR 

Commenters’ concern that SDRs are not 

well suited to make a jurisdictional 

determination with respect to an ADR’s 

or AFR’s request for swap data, as 

discussed above in section II.D.4.c.i. For 

the reasons discussed therein, the 

Commission considers those concerns 

otherwise addressed and is adopting 

§ 49.17(d)(4)(iv) as proposed.81

E. New § 49.17(i): Delegation of 

Authority 

In the interest of expedience and 

efficiency in determining 

appropriateness of access by ADRs and 

AFRs, the Commission proposed (1) to 

delegate all functions reserved to the 

Commission in § 49.17 to the Director of 

the Division of Market Oversight 

(‘‘DMO’’) and to such members of the 

Commission’s staff acting under his or 

her direction as he or she may designate 

from time to time and (2) that the DMO 

Director could submit any such 

delegated matter to the Commission for 

its consideration and that nothing 

prevents the Commission from 

exercising the delegated authority. The 

Commission received no comments in 

response to proposed § 49.17(i) and is 

adopting it as proposed. 

F. CEA Section 21(d) Confidentiality 

Agreements: Amendments to § 49.18 

CEA section 21(d), as amended by the 

FAST Act, requires that, prior to 

providing swap data to a 21(c)(7) entity, 

an SDR shall receive a written 

agreement from each entity stating that 

the entity shall abide by the 


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82See CEA section 21(d). 7 U.S.C. 24a(d), as 

amended by the FAST Act. 

83See §§ 49.17(d)(6) and 49.18(b), as in effect 

prior to this adopting release. 

84The Commission notes that the SEC has 

implemented a similar approach with respect to the 

execution of the required agreement. See Access to 

Data Obtained by Security-Based Swap Data 

Repositories, 81 FR 60585 at 60591 and 60608 

(Sept. 2, 2016) (SEC rule 13n–4(b)(10), 17 CFR 

240.13n–4(b)(10), and associated preamble text) 

(‘‘SEC Indemnification Rule’’). 

85Existing § 49.18(a) describes the purpose of 

§ 49.18. 

86Existing § 49.18(b) requires an SDR to receive 

a confidentiality agreement from a 21(c)(7) entity 

before granting the 21(c)(7) entity access to swap 

data maintained by the SDR. As discussed above, 

the Commission proposes to address in § 49.18(a), 

as adopted herein, the confidentiality agreement 

condition to swap data access. 

87Without limitation, ADRs and AFRs seeking 

useful guidance for Confidential Information 

segregation can look to the data segregation 

standards contained in the National Institute of 

Standards and Technology (‘‘NIST’’) Special 

Publication 800–53, Revision 4, Security and 

Privacy Controls for Federal Information Systems 

and Organizations (April 2013) (‘‘NIST Document’’), 

available at http://nvlpubs.nist.gov/nistpubs/ 

SpecialPublications/NIST.SP.800-53r4.pdf. The 

NIST Document also references international 

security standards in Appendix H (International 

Information Security Standards). See also the 

Federal Information Security Management Act of 

2002, as amended (‘‘FISMA’’), 44 U.S.C. 3541. As 

the Commission has previously noted in a different 

context, FISMA ‘‘is a source of cybersecurity best 

practices and also establishes legal requirements for 

federal government agencies . . . .’’ System 

Safeguards Testing Requirements, 80 FR 80139, 

80142 Dec. 23, 2015) (‘‘Registered Entity Cyber 

NPRM’’). The Commission adopted final rules 

based on the Registered Entity Cyber NPRM. See 

System Safeguards Testing Requirements, 81 FR 

64271 (Sept. 19, 2016) (‘‘Final Registered Entity 

Cyber Rules’’). 

88This should include cybersecurity measures. 

As the Commission detailed in a different context 

in the Final Registered Entity Cyber Rules, ‘‘cyber 

threats to the financial sector continue to expand.’’ 

See id. at 64272. See also System Safeguards 

Testing Requirements for Derivatives Clearing 

Organizations, 80 FR 80113, 80114–80115 (Dec. 23, 

2015) (describing escalating and evolving 

cybersecurity threats); Registered Entity Cyber 

NPRM at 80140–80141 (describing, inter alia, the 

then-current cybersecurity threat environment). 

confidentiality requirements described 

in CEA section 8 relating to the 

information on swap transactions that is 

provided.82 As originally adopted, the 

part 49 rules required that such 

confidentiality agreements be executed 

between the SDR and the 21(c)(7) 

entity.83 The Commission proposed in 

the NPRM to modify its part 49 rules to 

add a new § 49.18(a) requiring that a 

confidentiality arrangement be executed 

by and between the ADR or AFR and the 

Commission.84 Once the ADR or AFR 

and the Commission have executed a 

confidentiality arrangement, the ADR or 

AFR may present the executed 

document to any SDR from which it 

requests access to swap data in 

satisfaction of CEA section 21(d). 

Based on its experience with SDRs 

and swap data access since the adoption 

of part 49 in 2011, and on further 

consideration of the relationship 

between CEA sections 21 and 8, the 

Commission believed this change was 

consistent with the statutory framework 

established by Congress in CEA sections 

21(d) and 21(c)(7) and more directly 

conforms to the confidentiality mandate 

of CEA section 8. The Commission 

stated its belief that this change would 

promote regulatory efficiency and 

reduce costs to SDRs, ADRs and AFRs 

while ensuring the confidentiality of 

SDR swap data. 

To further promote regulatory 

efficiency, the Commission proposed a 

Confidentiality Arrangement Form for 

use by ADRs and AFRs. The 

Commission expects its use by ADRs 

and AFRs to significantly reduce the 

need for these entities to negotiate 

separate, SDR-specific confidentiality 

arrangements with the Commission. The 

Confidentiality Arrangement Form also 

will benefit the Commission by allowing 

it to use a single form of confidentiality 

arrangement rather than a different 

version for each ADR and AFR. This 

Confidentiality Arrangement Form also 

will eliminate the costs and potential 

inefficiencies for the SDRs that are 

inherent in requiring each SDR to 

negotiate confidentiality arrangements 

with a potentially large number of ADRs 

and AFRs. Similarly, the Confidentiality 

Arrangement Form will also eliminate 

costs and inefficiencies for ADRs and 

AFRs that would be incurred if each 

ADR and AFR has to negotiate and 

execute a unique confidentiality 

arrangement with each SDR. Finally, the 

Commission believes that widespread 

use of the Confidentiality Arrangement 

Form will facilitate timely access to SDR 

swap data by ADRs and AFRs by 

reducing or eliminating instances in 

which the Commission and its staff 

need to devote time and resources to 

developing and reviewing 

individualized confidentiality 

arrangements. 

1. Current Rule 

The Commission adopted § 49.18 to 

implement CEA sections 21(d)(1) and 

(2) as originally enacted. Accordingly, 

the current rule obligates SDRs to 

execute a ‘‘Confidentiality and 

Indemnification Agreement’’ before 

providing SDR swap data to an ADR or 

AFR. In the FAST Act, Congress 

repealed the indemnification 

requirement in CEA section 21(d)(2), 

and the Commission proposed in the 

NPRM certain conforming amendments 

to § 49.18 to remove references to 

indemnification. 

Separately, the Commission proposed 

in the NPRM to amend § 49.18 to 

modify the substantive requirements of 

the confidentiality arrangement and the 

parties to the confidentiality 

arrangement, to establish conditions for 

restricting or revoking access to SDR 

swap data, and to clarify the 

confidentiality obligations of ADRs and 

AFRs with regulatory responsibility 

over an SDR. 

2. Proposed Amendments to § 49.18(a): 

Confidentiality Arrangement Required 

Prior to Disclosure of Swap Data 

The Commission proposed to remove 

existing § 49.18(a) 85 and add a new 

§ 49.18(a) requiring that an SDR, before 

providing access to swap data 

maintained by the SDR to an ADR or 

AFR, receive a confidentiality 

arrangement executed by the 

Commission and the ADR or AFR that, 

at a minimum, contains all elements 

described in § 49.18(b), as amended. 

3. Proposed Amendments to § 49.18(b): 

Required Elements of the 

Confidentiality Arrangement 

The Commission proposed to amend 

§ 49.18(b) 86 to include a requirement 

that the confidentiality arrangement 

required pursuant to § 49.18(a) shall, at 

a minimum, include all elements 

included in the Confidentiality 

Arrangement Form. As proposed, 

paragraph 5 of the Confidentiality 

Arrangement Form required an ADR or 

AFR to undertake that it will be acting 

within the scope of its jurisdiction each 

time it requests swap data from an SDR, 

and to promptly notify the Commission 

and each relevant SDR if the scope of 

the ADR’s or AFR’s jurisdiction 

changes. As proposed, paragraph 5 of 

the Confidentiality Arrangement Form 

also required ADRs and AFRs to employ 

procedures to maintain the 

confidentiality of swap data received 

from an SDR and any information and 

analyses derived therefrom (the swap 

data and such information are referred 

to collectively in the Confidentiality 

Arrangement Form as the ‘‘Confidential 

Information’’). 

As proposed, paragraph 6 of the 

Confidentiality Arrangement Form 

required ADR and AFR signatories to 

employ the following safeguards to 

maintain the confidentiality of the 

Confidential Information: 

• To the maximum extent practicable, 

maintain Confidential Information 

received from SDRs separately from 

other data and information; 87

• protect such Confidential 

Information from misappropriation and 

misuse; 88


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89One basic principle of data security is that only 

those with a need to access data to perform their 

work should be granted access to such data. See, 

e.g., Framework for Improving Critical 

Infrastructure Cybersecurity at 23 (Feb. 12, 2014), 

available at http://www.nist.gov/cyberframework/ 

upload/cybersecurity-framework-021214.pdf 

(characterizing the ‘‘Protect’’ element of a core 

cybersecurity framework as one where ‘‘[a]ccess to 

assets and associated facilities is limited to 

authorized users, processes, or devices, and to 

authorized activities and transactions.’’). 

90The Commission understands that ADRs and 

AFRs may want to use aggregated and anonymized 

information derived from SDR swap data in 

analyses that may be made public. Cf. U.S. GOV’T 

ACCOUNTABILITY OFFICE, GAO–16–175, 

FINANCIAL REGULATION: COMPLEX AND 

FRAGMENTED STRUCTURE COULD BE 

STREAMLINED TO IMPROVE EFFECTIVENESS 

71–75 (2016) (‘‘GAO Report’’), available at http://

www.gao.gov/assets/680/675400.pdf (discussing the 

OFR’s Financial Stability Monitor and related 

confidentiality issues and protections surrounding 

sharing aggregated and disaggregated information 

provided by other agencies). The Commission 

believes that, when properly aggregated and 

anonymized, information derived from SDR swap 

data generally can be disclosed without violating 

the requirement in CEA section 21(d) that a 

recipient of swap data agree, with respect to the 

information on swap transactions that is provided 

by an SDR, to abide by the confidentiality 

requirements described in CEA section 8. Cf. 

§ 49.16(c) (providing that subject to Section 8 of the 

Act, SDRs may disclose aggregated swap data on a 

voluntary basis or as requested in the form and 

manner prescribed by the Commission); SDR Final 

Rules at 54551 (providing that the Commission 

believes that it is permissible under the Dodd-Frank 

Act and part 49 of the Commission’s regulations for 

an SDR to disclose, for non-commercial purposes, 

data on an aggregated basis such that the disclosed 

data reasonably cannot be attributed to individual 

transactions or market participants.). In certain 

cases, however, even aggregated information may 

enable a reader to determine a market participant’s 

business transactions, trade secrets (e.g., algorithms) 

or positions. Thus, the Confidentiality Arrangement 

Form requires ADRs and AFRs to implement 

safeguards designed to appropriately limit the use 

of information that has been aggregated from SDR 

swap data and to disclose aggregated information 

only if it is sufficiently anonymized to prevent the 

identification, through disaggregation or otherwise, 

of a market participant’s business transactions, 

trade data, market positions, customers or 

counterparties. ADRs and AFRs can look to 

§ 43.4(d)(1) and (4) and (g) for guidance on 

anonymization principles. 

91The Commission interprets the restrictions on 

disclosure contained in CEA section 8 that are 

incorporated in CEA sections 21(c)(7) and 21(d) as 

prohibiting an ADR or AFR from onward sharing 

swap data it obtains from an SDR. 

92Paragraph 12 of the Confidentiality 

Arrangement Form, as proposed, also required ADR 

and AFR signatories to certify to the CFTC, upon 

request, that they have destroyed such swap data. 

93As noted above, the Commission expects that 

the applicant would provide a description of its 

scope of jurisdiction as part of the Determination 

Order process. 

• ensure that only ADR or AFR 

personnel with a need to access 

particular Confidential Information to 

perform their job functions related to 

such Confidential Information have 

access thereto and that such access is 

permitted only to the extent necessary 

to perform such job functions; 89

• prevent the disclosure of aggregated 

Confidential Information, unless 

sufficiently aggregated and anonymized 

to prevent identification, through 

disaggregation or otherwise, of a market 

participant’s business transactions, 

trade data, market positions, customers 

or counterparties; 90

• prohibit the use of Confidential 

Information by ADR or AFR personnel 

for any improper purpose; and 

• include a process for monitoring 

compliance with the confidentiality 

safeguards described in the 

Confidentiality Arrangement Form and 

for promptly notifying the CFTC and 

each relevant SDR of any violation of 

the safeguards or failure to fulfill the 

terms of the confidentiality 

arrangement. 

As proposed, paragraph 7 of the 

Confidentiality Arrangement Form also 

precluded, with limited exceptions, 

ADRs and AFRs from disclosing any 

Confidential Information, via onward 

sharing 91 or otherwise. One exception 

was for aggregated Confidential 

Information that is anonymized to 

prevent identification (through 

disaggregation or otherwise) of a market 

participant’s business transactions, 

trade data, market positions, customers 

or counterparties. The other exception 

was described in proposed paragraphs 

8.a through 8.c., as described below. 

As proposed, paragraphs 8.a through 

8.c. of the Confidentiality Arrangement 

Form required specified federal, state or 

local U.S. ADRs and specified foreign 

AFRs to undertake that they will not 

disclose Confidential Information 

except in specified actions, adjudicatory 

actions or proceedings under relevant 

law. 

As proposed, paragraph 9 of the 

Confidentiality Arrangement Form 

contained certain provisions requiring 

ADRs and AFRs to notify the 

Commission, and take certain protective 

actions, prior to disclosing Confidential 

Information in circumstances where an 

ADR or AFR receives a legally 

enforceable demand to disclose 

Confidential Information. 

As proposed, paragraph 11 of the 

Confidentiality Arrangement Form 

required ADRs and AFRs accessing 

swap data from SDRs to comply with all 

applicable security-related requirements 

imposed by an SDR in connection with 

access to such swap data, as such 

requirements may be revised from time 

to time. Because, subject to specified 

conditions, CEA sections 21(c)(7) and 

21(d) require SDRs to provide ADRs and 

AFRs access to swap data, the 

Commission expects that SDRs will not 

impose security-related access 

requirements beyond those that are 

necessary to ensure the privacy and 

confidentiality of SDR swap data. The 

Commission further expects that SDRs’ 

security-related access requirements for 

ADRs and AFRs would be akin, if not 

identical, to the requirements SDRs 

impose on others (e.g., the Commission, 

reporting counterparties) to whom SDRs 

provide swap data access. 

To further protect the confidentiality 

of SDR swap data, paragraph 12 of the 

Confidentiality Arrangement Form, as 

proposed, required ADR and AFR 

signatories to promptly destroy all 

Confidential Information for which they 

no longer have a need or which no 

longer falls within their scope of 

jurisdiction.92 The Commission stated 

in the proposal that, although it may be 

the case that ADRs or AFRs will use 

some or all Confidential Information in 

perpetuity, if they no longer have a need 

for Confidential Information, they 

should destroy such Confidential 

Information to prevent its misuse. 

Similarly, the Commission stated in the 

proposal that if an SDR inadvertently 

provides to an ADR or AFR swap data 

outside the scope of the ADR’s or AFR’s 

jurisdiction, such swap data also should 

be destroyed immediately after the ADR 

or AFR discovers that such swap data is 

outside the scope of its jurisdiction. The 

Commission clarifies here that, although 

it is adopting paragraph 12 of the 

Confidentiality Arrangement Form as 

proposed, if a recordkeeping obligation 

that is legally binding on an ADR or 

AFR would prohibit destroying swap 

data, the ADR or AFR would not need 

to destroy swap data in contravention of 

such prohibition. 

The proposed rule required that a 

confidentiality arrangement include an 

exhibit (Exhibit A) describing the scope 

of jurisdiction of the ADR or AFR 

signatory. If such signatory is not an 

Enumerated ADR, the ADR or AFR 

would attach the Commission 

Determination Order described in 

§ 49.17(h) as Exhibit A to the 

confidentiality arrangement.93 If such 

signatory is an Enumerated ADR, it 

would attach, as Exhibit A to the 

confidentiality arrangement, a detailed 

description of its scope of jurisdiction as 

it relates to the swap data maintained by 

SDRs that the Enumerated ADR would 

seek to access. The description 

appended as Exhibit A to the 

confidentiality arrangement would be 

used by SDRs to verify that each 

particular swap data request is within 

the scope of the requesting entity’s 

jurisdiction. 

While the Confidentiality 

Arrangement Form, as proposed, would 


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94Proposed § 49.18(d) provided that the 

Commission may, if an ADR or AFR fails to fulfill 

the terms of a confidentiality arrangement described 

in § 49.18(a), direct each registered SDR to limit, 

suspend or revoke such ADR’s or AFR’s access to 

swap data held by such SDR. Similarly, proposed 

§ 49.17(d)(5) required an SDR, as directed by the 

Commission, to limit, suspend or revoke an ADR’s 

or AFR’s swap data access should the Commission 

limit, suspend or revoke the appropriateness 

determination for such ADR or AFR or otherwise 

direct the SDR to limit, suspend or revoke such 

access. 

95See SDR Letter at 3. 

96See id. 

97See SDR Letter at 2–3. 

require ADRs and AFRs to make certain 

undertakings before being granted 

access to SDR swap data, it afforded 

ADRs and AFRs the discretion to 

determine how to comply with those 

obligations with respect to swap data 

received from an SDR. Additionally, the 

Commission stated that to the extent the 

proposed rule did not address a relevant 

confidentiality issue that arose after an 

ADR or AFR commenced accessing 

swap data, the Commission expected 

affected ADRs and AFRs to take 

appropriate measures to safeguard 

affected swap data and advise the 

Commission of such issue promptly so 

that the Commission may consider 

appropriate action. 

4. Proposed Removal of § 49.18(c): ADRs 

and AFRs With Regulatory 

Responsibility Over an SDR 

The Commission proposed removing 

current § 49.18(c), which provides that 

the indemnification and confidentiality 

requirements established in § 49.18(b) 

do not apply to certain ADRs and AFRs 

with regulatory responsibility over an 

SDR, but requires such regulators to 

comply with CEA section 8 and any 

other relevant statutory confidentiality 

authorities. As noted above in section 

II.B. relating to § 49.17(d)(2) and (3), the 

Commission believed that those 

domestic regulators and Foreign 

Regulators that have regulatory 

responsibility over an SDR should be 

able to access swap data reported to 

such SDR pursuant to such other 

regulator’s regulatory regime, without 

the limitations set out in current 

§ 49.18(c). Therefore, the Commission 

submitted in the NPRM that § 49.18(c) is 

not appropriate. In addition, the 

Commission noted that § 49.17(d)(2) and 

(3) already provided that the 

confidentiality and indemnification 

requirements of § 49.18(b) do not apply 

to these domestic regulators and Foreign 

Regulators with regulatory 

responsibility over SDRs. However, the 

Commission stated that insofar as such 

a regulator sought swap data that was 

not reported to the SDR pursuant to that 

regulator’s regulatory regime, the 

exclusions set forth within 

§§ 49.17(d)(2) and (3) would not apply. 

The Commission accordingly proposed 

to eliminate § 49.18(c). 

5. Proposed New § 49.18(c) and (d): 

Failure to Fulfill the Terms of a 

Confidentiality Arrangement 

The Commission proposed new 

§ 49.18(c) to require SDRs to 

immediately report to the Commission 

any known failure to fulfill the terms of 

a confidentiality arrangement that they 

receive pursuant to § 49.18(a). The 

Commission also proposed new 

§ 49.18(d), which authorizes the 

Commission to direct an SDR to limit, 

suspend or revoke an ADR’s or AFR’s 

access to swap data, if the Commission 

determines that the ADR or AFR has 

failed to fulfill the terms of its 

confidentiality arrangement with the 

Commission.94

6. Proposed New § 49.18(e): Delegation 

of Authority 

The Commission proposed to add 

new § 49.18(e)(1) to delegate to the DMO 

Director, and to such Commission staff 

acting under his or her direction as he 

or she may designate from time to time, 

all functions reserved to the 

Commission in § 49.18. Proposed 

49.18(e)(2) reserved to the DMO Director 

the authority to submit to the 

Commission for its consideration any 

matter that has been delegated under 

§ 49.18(e)(1). Proposed § 49.18(e)(3) 

expressly permitted the Commission, at 

its election, to exercise the authority 

delegated under § 49.18(e)(1). 

This delegation is intended to 

conserve Commission resources and 

increase the effectiveness and efficiency 

of the Commission’s oversight and 

supervision of SDR swap data access. 

The Commission anticipates that the 

delegation of authority will help 

facilitate timely access to SDR swap 

data by ADRs and AFRs consistent with 

the requirements set forth in part 49 of 

the Commission’s regulations. However, 

the DMO Director may submit matters to 

the Commission for its consideration, as 

he or she deems appropriate. 

7. Conforming Changes 

As a result of the FAST Act 

Amendments, the Commission 

proposed conforming changes to 

§ 49.17(d)(6) to delete references to an 

Indemnification Agreement. As a result 

of the amendments to § 49.18, and in 

particular, § 49.18(a), the Commission 

proposed conforming changes to 

§ 49.22(d)(4) relating to chief 

compliance officer compliance 

responsibilities and duties so that the 

appropriate rule provision reflecting the 

confidentiality arrangement is 

referenced. 

8. Comments Received 

The Commission received comments 

related to proposed § 49.18 from the 

SDR Commenters. The SDR 

Commenters supported the 

Commission’s proposed transfer of 

responsibility for the execution of the 

confidentiality arrangement with the 

ADRs and AFRs from the SDRs to the 

Commission. The SDR Commenters 

advised that such transfer will 

significantly reduce regulatory costs and 

inefficiencies for the SDRs.95 The SDR 

Commenters also supported the use of a 

confidentiality arrangement form. The 

SDR Commenters stated that use of such 

a form would promote consistency and 

further reduce regulatory burdens.96

In response to the Commission’s 

proposal to remove previously adopted 

§ 49.18(c), which, in part, applied the 

conditions of CEA section 8 to those 

ADRs and AFRs with regulatory 

responsibility over an SDR, the SDR 

Commenters agreed with the 

Commission that it is not appropriate to 

require a domestic regulator or Foreign 

Regulator to comply with CEA section 8 

where such domestic regulator or 

Foreign Regulator has regulatory 

responsibility over an SDR and seeks 

access to SDR data that was reported 

pursuant to the regulator’s supervisory 

authority.97 Accordingly, the SDR 

Commenters supported the 

Commission’s proposal to remove 

§ 49.18(c) as previously adopted. 

Proposed § 49.18(a) and (d) both 

contemplated notifications being sent to 

the SDRs. Proposed § 49.18(a) required 

an SDR that received a notice that an 

ADR’s or AFR’s confidentiality 

arrangement was no longer in effect to 

no longer provide swap data access to 

such ADR or AFR. Proposed § 49.18(d) 

stated that the Commission may, if an 

ADR or AFR fails to fulfill the terms of 

a confidentiality arrangement described 

in § 49.18(a), direct each registered SDR 

to limit, suspend or revoke such ADR’s 

or AFR’s access to swap data held by 

such SDR. The SDR Commenters 

recommended that the Commission 

modify proposed § 49.18(a) and (d) to 

specify that the notifications 

contemplated in these provisions be in 

writing. 

9. Final Rule 

After consideration of the comments 

that it received, and for the reasons set 

forth in sections II.F.1. through II.F.8. 

above and in this section the 

Commission is adopting § 49.18 with 

modifications. First, as discussed above, 


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98The Commission is also making similar 

clarifying modifications to proposed §§ 49.17(d)(6) 

and 49.17(h)(3). 

99Although § 49.17(e) uses the terms ‘‘data’’ and 

‘‘swap data’’ interchangeably, the Commission 

intended those paragraphs to reference the 

definition of ‘‘swap data’’ and, consequently, 

believes that these amendments do not represent a 

change to the Commission’s original intent in 

promulgating § 49.17(e). However, the term ‘‘swap 

data’’ is narrower than the term ‘‘data’’. 

Consequently, changing ‘‘data’’ to ‘‘swap data’’ 

arguably would narrow the scope of the 

confidentiality procedures and ‘‘Confidentiality 

Agreement’’ required, respectively, by § 49.17(e)(1) 

and (2). 

100These proposed changes appear in proposed 

§ 49.18(b). 

101SDR Letter at 8. 

102 Id. 

the Commission is accepting the SDR 

Commenters’ comments that the 

notifications contemplated in proposed 

§ 49.18(a) and (d) should be provided in 

writing and is adopting revised 

§ 49.18(a) and (d) to reflect that change. 

The Commission is also modifying 

proposed § 49.18(a) to promote the use 

of the Confidentiality Arrangement 

Form set forth in Appendix B. 

Specifically, as adopted, § 49.18(a) 

provides that, prior to providing an ADR 

or AFR access to any requested swap 

data, an SDR shall receive therefrom an 

executed confidentiality arrangement, 

between the Commission and the ADR 

or AFR, in the form set out in Appendix 

B to this part 49. The Commission may, 

in its discretion, however, agree to 

execute an alternate confidentiality 

arrangement with an ADR or AFR if the 

confidentiality arrangement is 

consistent with the requirements set 

forth in § 49.18(a).98 The Commission 

believes that widespread use of the 

Confidentiality Arrangement Form will 

facilitate timely access to SDR swap 

data by ADRs and AFRs by reducing or 

eliminating instances in which the 

Commission and its staff need to devote 

time and resources to developing and 

reviewing individualized confidentiality 

arrangements. The Commission 

therefore believes that this modification 

will increase the potential benefits and 

cost savings associated with use of the 

Confidentiality Arrangement Form 

while still providing ADRs and AFRs 

the flexibility to use an alternate 

arrangement if necessary, in 

consultation with the Commission. 

The Commission is adopting all other 

modifications to § 49.18 as proposed in 

the NPRM. 

G. Other Changes 

1. Proposed Rule Changes 

In addition to those changes 

discussed throughout this release, the 

Commission proposed other changes to 

part 49, including a number of 

ministerial changes. The Commission 

proposed to amend § 49.9(a)(9) to 

change the reference therein from 

‘‘certain appropriate domestic regulators 

and foreign regulators’’ to ‘‘Appropriate 

Domestic Regulators and Appropriate 

Foreign Regulators’’ to make clear that 

an SDR is required to provide access to 

swap data, pursuant to § 49.17, only to 

ADRs and AFRs. The Commission 

proposed to make a number of other 

changes to part 49 to more consistently 

refer to the defined term ‘‘swap data.’’ 

The Commission proposed to modify: 

The references in existing §§ 49.9(a)(9) 

and 49.17(b)(2)(i) to ‘‘swap data or 

information’’; the reference in existing 

§ 49.17(d)(4)(i) to ‘‘swaps transaction 

data’’; and the reference in existing 

§ 49.17(d)(6) to ‘‘requested data,’’ to be, 

in each case, references to ‘‘swap data,’’ 

as that term is defined in § 49.2(a)(15). 

The Commission proposed these 

changes to eliminate confusion and to 

conform part 49 to the FAST Act’s 

amendment of CEA section 21(c)(7) to 

refer to ‘‘swap data.’’ 

The Commission also proposed to 

replace the reference in § 49.17(a) to 

‘‘swaps data’’ with a reference to ‘‘swap 

data’’ and to replace the reference in 

§ 49.17(a) to ‘‘Regulation’’ with a 

reference to ‘‘§ 49.17’’ to match the 

format of the reference in § 49.17(b). The 

Commission did not intend to effect any 

substantive changes with these 

proposed amendments. 

The Commission proposed to change 

the references to ‘‘swap transaction 

data’’ in §§ 49.17(c)(2) and 49.17(c)(3) to 

‘‘swap data’’ as defined in § 49.2(a)(15). 

The Commission also proposed to 

change the references to ‘‘data’’ in 

§ 49.17(d)(5) and (6), (e) introductory 

text, and (e)(1) to ‘‘swap data’’ in order 

to clarify the Commission’s intent to 

refer to ‘‘swap data’’ within the meaning 

of § 49.2(a)(15). For the same reason, the 

Commission also proposed to add 

‘‘swap data and’’ before ‘‘information’’ 

in § 49.17(e)(2) to conform it to 

§ 49.17(e)(1), as proposed to be 

amended.99 The Commission also 

proposed to add the term ‘‘and 

information’’ after the term ‘‘swap data’’ 

in the second sentence of § 49.17(e) so 

that such sentence is consistent with the 

first sentence of § 49.17(e), which 

permits access by third party service 

providers to both swap data and 

information maintained by a registered 

SDR, subject to certain conditions. 

In § 49.17(f)(2), the Commission 

proposed to change both references to 

‘‘data and information’’ to ‘‘swap data 

and information’’ in order to clarify, in 

each case, that the intended reference is 

to ‘‘swap data’’ as defined in 

§ 49.2(a)(15). 

In addition to those changes related to 

references to ‘‘swap data,’’ the 

Commission also proposed to amend 

§ 49.17(b)(1)(vii) to change the 

references to any other person the 

Commission deems appropriate to any 

other person the Commission 

determines to be appropriate pursuant 

to the process set forth in § 49.17(h) to 

match the language in CEA section 

21(c)(7). 

Commission regulation 49.17(f)(1) 

currently states that access of swap data 

maintained by the registered swap data 

repository to market participants is 

generally prohibited. The Commission 

proposed to amend § 49.17(f)(1) to state 

that access by market participants to 

swap data maintained by the registered 

swap data repository is prohibited other 

than as set forth in § 49.17(f)(2) in order 

to clarify its meaning. The Commission 

did not intend this to be a substantive 

change to § 49.17(f)(1). 

Finally, the Commission proposed 

several minor clarifying changes to 

§ 49.18(b).100 These changes include: 

Replacing ‘‘the swap data’’ with ‘‘swap 

data’’; replacing the ‘‘with any 

Appropriate Domestic Regulator or 

Appropriate Foreign Regulator’’ 

reference with ‘‘to any Appropriate 

Domestic Regulator or Appropriate 

Foreign Regulator’’; and adding ‘‘each’’ 

before ‘‘as defined in § 49.17(b)’’ to 

reflect that both ‘‘Appropriate Domestic 

Regulator’’ and ‘‘Appropriate Foreign 

Regulator’’ are defined terms in 

§ 49.17(b). 

2. Final Rule Changes 

The Commission received comment 

on only two of the proposed changes 

described in this section II.G. For the 

reasons set forth above in section II.G.1. 

and in this section, with one exception 

(i.e., § 49.17(e)), the Commission is 

adopting the changes described in this 

section II.G. as proposed. The comments 

and the Commission’s responses are 

described below. 

The SDR Commenters generally 

supported the proposed changes to part 

49 to more consistently refer to the 

defined term ‘‘swap data,’’ stating their 

belief that the consistency ‘‘will 

promote clarity as to the data to which 

ADRs and AFRs may be granted 

access[.]’’ 101 However, the SDR 

Commenters also noted that the term 

‘‘swap data’’ is defined under 

§ 49.2(a)(15) as ‘‘specific data elements 

and information set forth in part 45 of 

this chapter that is required to be 

reported by a reporting entity to a 

registered swap data repository.’’ 102 The 


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103 Id. 

104 Id. 

105These changes are to clarify that the scope of 

an ADR’s or AFR’s jurisdiction, which is the subject 

of the quoted text, is to be described in the 

appendix to the confidentiality arrangement 

required by § 49.18(a) rather than in the 

confidentiality arrangement itself. The language as 

proposed was somewhat unclear in that regard. 

106 In addition, the SDR Commenters commented 

on several issues relating to current § 49.17(f)(2) 

that were unrelated to the non-substantive change 

that the Commission proposed to make to 

§ 49.17(f)(2). Because the SDR Commenters’ 

comments on § 49.17(f)(2) were unrelated to the 

proposed changes to § 49.17(f)(2), they are beyond 

the scope of the NPRM and not a logical outgrowth 

of this rulemaking, as a result of which the 

Commission declines to address them here, in 

accordance with the Administrative Procedure Act. 

All comments received in response to the 

Commission’s request for comment are available at 

https://comments.cftc.gov/PublicComments/ 

CommentList.aspx?id=1777. 

107See SDR Letter at 9. 

108See 5 U.S.C. 601 et seq. 

SDR Commenters asked the Commission 

to confirm that SDRs may provide ADRs 

and AFRs with Part 43 data in addition 

to Part 45 data and characterized this 

clarification as important because ‘‘the 

SDRs use a combined message for Parts 

43 and 45 reporting, making separation 

of Part 43 data from Part 45 data 

exceedingly difficult.’’ 103

In response to this comment, the 

Commission confirms that SDRs may 

provide ADRs and AFRs with Part 43 

data in addition to Part 45 data. The 

Commission observes that most data 

reported pursuant to Part 43 is publicly 

disseminated and that, to the extent 

certain data is not publicly 

disseminated, such data is reported in 

equal or greater detail pursuant to part 

45. 

The SDR Commenters also noted that, 

‘‘[u]nder § 49.17(e), the Commission 

proposes to amend ‘data and 

information’ to ‘swap data and 

information[ ]’’ and commented that, in 

their view, the more appropriate term 

‘‘to ensure a third-party Service 

Provider may have access to all 

necessary data and information’’ is 

‘‘swap data and SDR Information’’ (as 

SDR Information is defined in § 49.2).104

In response to this comment, the 

Commission is adopting § 49.17(e) as 

the SDR Commenters recommended 

amending it, in part because this change 

does not change the intent or scope of 

what is required or what was proposed 

in the NPRM. 

In addition to these final rule changes, 

the Commission is adopting three 

ministerial changes to the proposed rule 

text, each for greater clarity, and one 

ministerial change to the existing rule 

text, also for greater clarity. First, the 

Commission is changing the phrase ‘‘as 

directed by the Commission’’ in 

proposed § 49.17(d)(5) to ‘‘if directed by 

the Commission’’. Second, the 

Commission is changing the phrase ‘‘as 

described and appended to the 

confidentiality arrangement required by 

§ 49.18(a)’’ to ‘‘as described in the 

appendix to the confidentiality 

arrangement required by § 49.18(a)’’ in 

both proposed § 49.17(d)(4)(i) and 

(iii).105

Third, the Commission is adding 

bracketed text at the end of Appendix B 

to part 49 (describing Exhibit A to the 

Confidentiality Arrangement Form) in 

response to the SDR Commenters 

comment discussed in section II.D.2.c.i. 

This additional bracketed text provides 

that in both cases, the description of the 

scope of jurisdiction must include 

elements allowing SDRs to establish, 

without undue obstacles, objective 

parameters for determining whether a 

particular Swap Data request falls 

within such scope of jurisdiction. Such 

elements could include LEIs of all 

jurisdictional entities and could also 

include UPIs of all jurisdictional 

products or, if no CFTC-approved UPI 

and product classification system is yet 

available, the internal product identifier 

or product description used by an SDR 

from which Swap Data is to be sought. 

Fourth, the Commission is amending 

existing § 49.17(d)(1), which the 

Commission had not proposed to amend 

to provide a brief overview in one 

paragraph to those persons seeking to 

obtain swap data access from SDRs, 

both ADRs and AFRs and those seeking 

to become ADRs or AFRs, of the 

requirements to obtain such access and 

to alert such persons to exceptions to 

the otherwise applicable requirements. 

The Commission is also adopting these 

changes to § 49.17(d)(1) to provide the 

aforementioned persons citations to the 

regulations relevant to obtaining SDR 

swap data access and to relevant 

exceptions to those regulations. These 

changes provide that except as set forth 

in § 49.17(d)(2) or (3), a person who is 

not an Appropriate Domestic Regulator 

or an Appropriate Foreign Regulator and 

who seeks to gain access to the swap 

data maintained by a swap data 

repository is required to first become an 

Appropriate Domestic Regulator or 

Appropriate Foreign Regulator through 

the process set forth in § 49.17. 

Additionally, these changes provide that 

Appropriate Domestic Regulators and 

Appropriate Foreign Regulators seeking 

to gain access to the swap data 

maintained by a swap data repository 

are required to comply with 

§ 49.17(d)(6) prior to receiving such 

access and, if applicable after receiving 

such access, comply with the 

notification requirement in 

§ 49.17(d)(4)(iii) applicable to 

Appropriate Domestic Regulators and 

Appropriate Foreign Regulators. 

III. Request for Comment 

In addition to the specific questions 

set forth throughout the NPRM, the 

Commission requested comment on all 

aspects of the proposal and on several 

specific questions set forth in section III 

of the NPRM. The Commission received 

some responsive comments, which it 

has summarized and responded to in 

the relevant sections of this adopting 

release, and two comments that were 

not responsive.106

IV. Compliance Date 

The Commission received one 

comment related to the compliance date 

of the final rules. The SDR Commenters 

suggested that the Commission work 

with the SDRs to set an appropriately 

mutually agreeable timeframe for the 

compliance date.107 Commission staff 

subsequently engaged in multiple 

discussions with the SDR Commenters 

regarding the compliance date. The 

Commission, as set out below, is 

adopting a two part compliance date for 

the final rules adopted herein. The 

compliance date for the final rules will 

be 60 days after publication in the 

Federal Register, except for the 

compliance date for an SDR to comply 

with its obligation under 

§ 49.17(d)(5)(iii) of the Commission’s 

regulations to provide access to swap 

data requested by an ADR or AFR. The 

compliance date for an SDR to comply 

with its obligation under 

§ 49.17(d)(5)(iii) of the Commission’s 

regulations is the earlier of (1) the 

earliest date, after such SDR receives 

from such ADR or AFR the 

confidentiality arrangement required by 

§ 49.18(a), that such SDR, exercising 

commercially reasonable efforts in light 

of its obligations under the CEA and the 

Commission’s regulations, is able to 

provide such access to the ADR or AFR 

and (2) 180 days after the SDR receives 

from such ADR or AFR the 

confidentiality arrangement required by 

§ 49.18(a). 

V. Related Matters 

A. Regulatory Flexibility Act 

The Regulatory Flexibility Act 

(‘‘RFA’’) requires federal agencies, in 

promulgating rules, to consider the 

impact of those rules on small 

entities.108 The rules adopted herein 

will have a direct effect on the 

operations of SDRs and certain domestic 

regulators and foreign regulators seeking 


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109See Policy Statement and Establishment of 

‘‘Small Entities’’ for purposes of the Regulatory 

Flexibility Act, 47 FR 18618, 18618–21 (Apr. 30, 

1982). 110See Part 49 Adopting Release at 54575 and 

Notice of Proposed Rulemaking: Swap Data 

Repositories, 75 FR 80898, 80926 (Dec. 23, 2010). 111 5 U.S.C. 601(5), (6). 112 44 U.S.C. 3501 et seq. 113The most recent revision to OMB Control 

Number 3038–0086 was approved November 30, 

2015 and is available at http://www.reginfo.gov/ 

public/do/ 

PRAOMBHistory?ombControlNumber=3038-0086. 

access to swap data reported to, and 

maintained by, SDRs. 

The Commission has previously 

established certain definitions of ‘‘small 

entities’’ to be used by the Commission 

in evaluating the impact of its rules on 

small entities in accordance with the 

RFA.109 The Commission has previously 

determined that SDRs are not small 

entities for purposes of the RFA.110

For purposes of the RFA, the 

definition of ‘‘small entity’’ 

encompasses ‘‘small governmental 

jurisdictions,’’ which in relevant part 

means governments of locales with a 

population of less than fifty 

thousand.111 Although the Commission 

anticipates that the final rules adopted 

herein may be expected to have an 

economic impact on various 

governmental entities that access data 

pursuant to the Dodd-Frank Act’s data 

access provisions (i.e., ADRs and AFRs), 

the Commission does not anticipate that 

any of those governmental entities 

would be small governmental 

jurisdictions: The Commission believes 

that the universe of ADRs and AFRs will 

likely be limited to U.S. federal 

regulators and equivalent national, or 

state or provincial, foreign authorities, 

given that swap regulation does not 

occur at a local level globally, in the 

Commission’s experience. As a result, 

the Commission does not believe that 

the final rules will have a significant 

economic impact on a substantial 

number of small entities. Therefore, the 

Chairman, on behalf of the Commission, 

pursuant to 5 U.S.C. 605(b), hereby 

certifies that the final rules will not 

have a significant economic impact on 

a substantial number of small entities. 

B. Paperwork Reduction Act 

The amendments to part 49 result in 

new ‘‘collection of information’’ 

requirements within the meaning of the 

Paperwork Reduction Act of 1995 

(‘‘PRA’’).112 An agency may not conduct 

or sponsor, and a person is not required 

to respond to, a collection of 

information unless it displays a 

currently valid Office of Management 

and Budget (‘‘OMB’’) control number. 

The OMB control number for the 

information collection associated with 

part 49 is 3038–0086 (the ‘‘Information 

Collection’’).113 The Commission is 

revising the Information Collection 

because the rule amendments herein 

will impose information collection 

requirements that require approval from 

OMB under the PRA. The Commission 

is therefore submitting this final rule to 

OMB for review in accordance with 44 

U.S.C. 3507(d) and 5 CFR 1320.11. 

1. Summary of the Requirements 

The modifications to part 49 require 

SDRs to make swap data available to 

requesting entities (i.e., ADRs and 

AFRs) if certain conditions are satisfied. 

These conditions include the requesting 

entity executing a confidentiality 

arrangement with the Commission and 

providing it to each SDR from which it 

seeks swap data and, in some cases, 

receiving an order from the Commission 

(which requesting entities must apply 

for, including certain specified types of 

information in support) determining 

that it is an appropriate entity to receive 

SDR swap data. The modifications 

further require each ADR and AFR to 

notify the Commission, and each SDR 

from which an ADR or AFR has 

received swap data, of any change to the 

scope of such ADR’s or AFR’s 

jurisdiction, as described in the 

confidentiality arrangement. 

The modifications also require SDRs 

to report to the Commission: (1) Each 

initial request from an ADR or AFR for 

access to swap data; (2) all ADR or AFR 

requests for swap data that do not 

comport with the described scope of the 

ADR’s or AFR’s jurisdiction that is 

appended to the confidentiality 

arrangement; and (3) failures to fulfill 

the terms of confidentiality 

arrangements. The modifications 

additionally require each SDR to 

maintain records of each initial, and all 

subsequent, requests from an ADR or 

AFR for access to swap data. 

2. Collection of Information 

Currently, the Information Collection 

sets out burden estimates relating to a 

broad range of SDR obligations 

associated with registration 

requirements, reporting requirements, 

recordkeeping requirements, and 

disclosure requirements. Where the 

information collection associated with 

those obligations is modified by this 

rule, the Commission is revising the 

Information Collection accordingly. To 

the extent this rule introduces new 

information collections that were not 

previously incorporated into the 

Information Collection, the Commission 

is revising the Information Collection to 

account for the new information 

collections. Finally, many of the 

information collections discussed in the 

Information Collection are not 

implicated or modified by the 

Commission’s revisions to part 49 in 

this release. The Commission, therefore, 

is not revising the estimated burdens 

associated with such information 

collections. New or revised information 

collections contained in these revisions 

to part 49 will affect SDRs as well as 

entities that request access to SDR swap 

data pursuant to part 49, as revised. 

As discussed above, the modifications 

to part 49 set out in this release are 

intended to provide a process by which 

other regulatory authorities may obtain 

access to SDR swap data. The 

information collections associated with 

this process are intended to ensure that 

SDR swap data is accessed only by 

appropriate entities and that the 

confidentiality of any accessed SDR 

swap data is adequately protected. The 

ultimate result of this process is 

intended to provide other regulatory 

authorities with information to assist 

with the oversight of the global swaps 

market and market participants. 

ADR/AFRs. As discussed throughout 

this release, certain conditions must be 

satisfied before a requesting entity is 

permitted to access SDR swap data. 

These conditions may implicate various 

PRA collections and burdens as 

discussed below. 

Pursuant to § 49.18(a), every 

requesting entity seeking access to SDR 

swap data must execute a 

confidentiality arrangement with the 

Commission prior to receiving access. 

This requirement applies to both those 

entities that are Enumerated ADRs, and 

those entities, whether foreign or 

domestic, that require a determination 

from the Commission that they are 

appropriate entities to receive access to 

SDR swap data. The Commission 

believes the use of the Confidentiality 

Arrangement Form, or a similar form, if 

permitted by the Commission, will 

provide an efficient means to satisfy the 

requirements of § 49.18(a). 

In addition to executing a 

confidentiality arrangement, requesting 

entities that are not Enumerated ADRs 

will be required to seek a Determination 

Order from the Commission to obtain 

access to SDR swap data. The 

Commission is requiring that an 

Enumerated ADR attach to the 

confidentiality arrangement a detailed 

description of its scope of jurisdiction, 

as it relates to the swap data maintained 

by SDRs that the Enumerated ADR seeks 

to access. 

The Commission, for PRA purposes, 

continues to believe that it is reasonable 


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114The Commission continues to estimate that up 

to approximately 30 authorities in the United States 

may seek to access swap data from SDRs. In the 

context of potential AFRs, the Commission believes 

that most requests will come from authorities in 

G20 countries, each of which will have no more, 

and likely fewer, than 30 authorities that may 

request swap data from SDRs. In addition, certain 

authorities from outside the G20 also may request 

swap data from SDRs. Accounting for all of these 

entities, the Commission estimates that there likely 

will be a total of no more than 300 relevant 

domestic and foreign authorities that may request 

swap data from SDRs. 

115See SDR Letter at 5, n.10. 

116The SDR Letter stated that ‘‘CME believes the 

initial set up cost will be between of 400 and 950 

hours.’’ Id. In subsequent communications, CME 

clarified that this estimate is for all ADRs and AFRs 

in the aggregate. The other SDRs did not opine on 

the Commission’s estimate of 26 hours. 

117The Commission, in its proposal, estimated 

that the burden on an SDR associated with setting 

up access restrictions to match a requesting entity’s 

scope of jurisdiction will include 20 hours of 

programmer analyst time, five hours of senior 

programming time, and one hour of attorney time, 

for a total of 26 hours. The Commission notes that 

the SEC also estimated a set up time of 26 hours 

in its similar rulemaking. See Access to Data 

Obtained by Security-Based Swap Data 

Repositories, 81 FR 60585 at 60594 (Sept. 2, 2016) 

(SEC rule 13n–4(b)(9) and (10), 17 CFR 240.13n– 

4(b)(9) and (10). 

to assume that 300 total entities will 

seek access to SDR swap data. This 

estimate is based on the Commission’s 

experience in receiving data requests 

from other regulators and its experience 

in coordinating and cooperating with 

other regulators.114 For PRA purposes, 

the Commission assumes there are four 

SDRs, which is the number of SDRs that 

are currently provisionally registered 

with the Commission. As the 

confidentiality arrangement required by 

§ 49.18(a) will be between the ADR or 

AFR and the Commission, and will 

address swap data access from all SDRs, 

an ADR or AFR will need to execute 

only a single confidentiality 

arrangement for all SDRs from which it 

seeks swap data, rather than a separate 

confidentiality arrangement for each 

SDR. Accordingly, the Commission 

estimates, for PRA purposes, that the 

total number of confidentiality 

arrangements that will be executed 

under the amended part 49 rules is 300. 

Although the Commission may, in its 

discretion, execute a confidentiality 

arrangement with one or more ADRs/ 

AFRs that is not in the form of the 

Confidentiality Arrangement Form, 

§ 49.18(b) requires that such alternative 

confidentiality arrangement include all 

elements of in the Confidentiality 

Arrangement Form. Consequently, the 

Commission is estimating the burden on 

ADRs and AFRs of negotiating the 

confidentiality arrangement required by 

§ 49.18(a) based on its estimate of the 

burden involved for an ADR or AFR to 

put in place the Confidentiality 

Arrangement Form. The Commission 

estimates that the review and execution 

of each confidentiality arrangement by 

an ADR or AFR will take approximately 

40 hours, for a total burden of 12,000 

hours. The burden estimates associated 

with entering into the confidentiality 

arrangement required by § 49.18(a) are 

addressed in the revised Information 

Collection. 

Any requesting entity, other than an 

Enumerated ADR, that seeks access to 

SDR swap data must be determined by 

the Commission to be an appropriate 

recipient of such access. For 

Enumerated ADRs, there is no burden 

associated with seeking to be 

determined appropriate by the 

Commission because Enumerated ADRs 

have already been determined by 

Congress in CEA section 21(c)(7), or by 

the Commission through its adoption of 

§ 49.17(b)(1), to be appropriate 

recipients of SDR swap data access. 

Those entities that are not Enumerated 

ADRs and that seek SDR swap data 

access will be required to receive a 

Determination Order prior to receiving 

access to SDR swap data. The process 

for obtaining such a Determination 

Order is set out in general terms in 

§ 49.17(h) and requires the requesting 

entity to prepare and submit an 

application to the Commission. The 

preparation and submission of this 

application constitutes an information 

collection under the PRA. 

As discussed above, the Commission 

believes that for PRA purposes it is 

reasonable to assume that 300 domestic 

and foreign entities will seek access to 

SDR swap data. Very few of these 

entities have already been specifically 

identified by Congress in CEA section 

21(c)(7), or by the Commission through 

its adoption of § 49.17(b)(1), as 

appropriate recipients of SDR swap data 

access. The Commission estimates, for 

PRA purposes, that each entity seeking 

a Determination Order would expend 

100 hours in connection with filing the 

necessary application with the 

Commission, for a total initial burden of 

no more than 30,000 hours (calculated 

as the product of 300 domestic and 

foreign entities seeking access to SDR 

swap data and 100 hours per 

application). This estimate considers the 

relevant information that would be 

required to be provided in such an 

application, including information 

regarding the entity’s scope of 

jurisdiction, confidentiality safeguards, 

as well as any other information the 

Commission deems relevant to its 

determination. This burden estimate is 

included in the Commission’s revisions 

to the Information Collection. 

Swap Data Repositories. As discussed 

throughout this release, SDRs are 

required to provide access to SDR swap 

data to ADRs and AFRs, provided 

certain conditions are met. This 

requirement may implicate PRA 

collections and burdens, some of which 

are already addressed in the existing 

Information Collection, and some of 

which constitute new collections, as 

discussed below. Currently, the burden 

on SDRs of making data available to 

ADRs and AFRs is accounted for in the 

Information Collection, as this is an 

existing obligation under existing 

§ 49.17(d). However, the rules set out in 

this release clarify and modify the 

requirements imposed on SDRs in 

providing access to SDR swap data to 

ADRs and AFRs. Consequently, the 

Commission is revising the Information 

Collection to account for these 

clarifications and modifications. 

The Commission expects SDRs to 

incur burdens and costs associated with 

setting up access to SDR swap data that 

is consistent with an ADR’s or AFR’s 

scope of jurisdiction, as described in the 

appendix to the confidentiality 

arrangement required by § 49.18(a). The 

Commission expects that each 

confidentiality arrangement will 

identify, either directly or through an 

attached Determination Order, the scope 

of access that is appropriate for a given 

requesting entity. The Commission 

expects SDRs to use these limitations to 

program their systems to reflect the 

scope of the ADR’s or AFR’s access to 

SDR swap data. These limits set out in 

the confidentiality arrangement are 

expected to reduce the burdens on SDRs 

of assessing whether a particular SDR 

swap data request falls within the scope 

of an ADR’s or AFR’s jurisdiction. 

The Commission received one 

comment estimating the burden on 

SDRs associated with setting up access 

restrictions to match an ADR’s or AFR’s 

scope of jurisdiction.115 CME estimated 

that its initial set up costs would be 

between 400 and 950 hours for all ADRs 

and AFRs in the aggregate.116 The 

Commission believes it is reasonable to 

accept CME’s estimate of 950 hours, as 

CME is an SDR and, as such, is familiar 

with the costs required for setting up 

such access restrictions.117

Consequently, for PRA purposes, the 

Commission estimates that all SDRs in 

the aggregate would incur a total burden 

of 3,800 hours (i.e., the product of 4 

SDRs and 950 hours of time) associated 

with setting up access for all ADRs and 

AFRs. The burdens associated with 

these permissioning requirements are 


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118See SDR Letter at 7, n.15. 

119Moreover, SDRs are already subject to 

extensive recordkeeping obligations under existing 

Commission rules, so SDRs may be able to reduce 

their costs by making use of existing recordkeeping 

resources to some extent. 

addressed in the revised Information 

Collection. 

SDRs will also be required to provide 

electronic notice to the Commission of 

the first request for access to swap data 

from a particular ADR or AFR, and 

promptly after receiving any request 

that does not comport with the scope of 

the ADR’s or AFR’s jurisdiction, as 

described in the appendix to the 

confidentiality arrangement required by 

§ 49.18(a). In addition to notifying the 

Commission of the foregoing, the 

Commission is requiring, in 

§ 49.17(d)(4)(i), SDRs to maintain 

records of the details of the initial and 

all subsequent requests for swap data 

from an ADR or AFR. The SDR shall 

maintain this information for a period of 

no less than five years after the date of 

such request and shall provide this 

information to the Commission upon 

request, pursuant to § 1.31. 

Currently, the Information Collection 

estimates burdens associated with the 

various registration, reporting, 

recordkeeping, and disclosure 

requirements to which SDRs are subject. 

The reporting and recordkeeping 

requirements relating to ADR and AFR 

data requests constitute an information 

collection for PRA purposes and require 

the Commission to revise the reporting 

and recordkeeping burden estimates 

contained in the Information Collection. 

The reporting and recordkeeping 

requirements in this release may 

potentially impact each SDR. 

SDRs already have the ability to 

communicate electronically with the 

Commission and are subject to 

significant recordkeeping requirements 

pursuant to §§ 45.2(f) and 49.12. 

Therefore, the requirements adopted 

herein should not result in SDRs having 

to incur initial costs to implement 

systems to notify the Commission when 

an ADR or AFR submits a data request 

for the first time that are in excess of 

what is already accounted for in the 

Information Collection. 

The Commission estimates that each 

SDR would incur an annual burden of 

480 hours associated with the 

requirement to maintain records of the 

details of the initial and all subsequent 

requests for data from an ADR or AFR, 

for a total of 1,920 hours annually (i.e., 

the product of four SDRs and 480 

hours). Although the Commission 

provided an estimate of 280 hours in the 

NPRM, CME commented that 480 hours 

was more likely. 

The Commission received one 

comment related to setup costs 

associated with its proposed 

recordkeeping requirements.118 The 

SDR Letter provided estimates for 

recordkeeping set up costs. CME 

subsequently provided updated 

estimates of these setup costs, which 

CME now estimates would be 

approximately 1,100–1,440 hours. The 

Commission believes it is reasonable to 

accept CME’s estimate of 1,440 hours, as 

CME is an SDR and, as such, is familiar 

with the setup costs associated with 

SDR recordkeeping requirements. 

Therefore, the Commission estimates 

that initially each SDR may incur a 

burden of 1,440 hours associated with 

these recordkeeping requirements, for a 

total of 5,760 hours (i.e., the product of 

four SDRs and 1,440 hours). However, 

as discussed in this release, the 

recordkeeping requirements adopted 

herein may result in lower costs to the 

SDRs than estimated here, as the 

Commission is not requiring SDRs to 

keep records of all copies of swap data 

provided in response to data requests, as 

it had proposed in the NPRM.119 The 

burdens associated with the notification 

requirements adopted herein are 

addressed in the revised Information 

Collection. 

Finally, the current Information 

Collection accounts for the costs to 

SDRs of executing a ‘‘Confidentiality 

and Indemnification Agreement’’ with 

each requesting ADR and AFR. Under 

the Commission’s final rule adopted 

herein, the SDR is no longer required to 

execute such an agreement with ADRs 

or AFRs. The confidentiality 

arrangements will be between each 

requesting ADR or AFR and the 

Commission. Accordingly, the total 

burden to SDRs, as currently reflected in 

the Information Collection, is reduced 

by the cost to execute such agreements. 

The reduction in burden associated with 

this change in the confidentiality 

arrangement requirement is addressed 

in the revised Information Collection. 

C. Cost-Benefit Considerations 

1. Introduction 

As discussed in Section I above 

(‘‘Background and Introduction’’), the 

Commission is amending Part 49 to (i) 

implement the statutory changes 

mandated by the FAST Act 

amendments; (ii) make certain 

conforming and clarifying changes 

related to such implementation; (iii) 

revise the process by which a regulator 

is determined appropriate to receive 

access to SDR swap data; (iv) clarify the 

standards in connection with the 

Commission’s appropriateness 

determinations; and (v) establish the 

form and substance of the written 

agreement mandated by CEA section 

21(d), as amended. 

In the sections that follow, the 

Commission discusses the costs and 

benefits associated with the final rule 

and reasonable alternatives considered. 

Comments from commenters addressing 

the associated costs and benefits of the 

rule are addressed in the appropriate 

sections. Wherever possible, the 

Commission has considered the costs 

and benefits of the final rule in 

quantitative terms. Given, however, that 

SDRs do not yet have a history of 

providing swap data to other regulators, 

and the final rule does not dictate the 

means by which SDRs may provide 

such swap data access in the future, the 

availability to the Commission of 

relevant or useful quantitative terms to 

assess the potential costs and benefits of 

the final rule is limited. Accordingly, 

where a quantitative discussion is not 

feasible, the Commission has considered 

the costs and benefits of this rulemaking 

in qualitative terms. 

The baseline against which the costs 

and benefits of this final rule are being 

compared is the existing status quo for 

SDR swap data access under CEA 

section 21, as amended by the FAST 

Act, taken together with the swap data 

access requirements in the current Part 

49 rules. As a general matter, the 

Commission recognizes that there are 

inherent costs and benefits to domestic 

and foreign regulators having access to 

SDR swap data. As discussed above, the 

Commission expects that access to SDR 

data by ADRs and AFRs will not only 

assist those regulators in fulfilling their 

own supervisory and regulatory 

functions but facilitate greater 

cooperation and collaboration among 

regulators across jurisdictions, 

promoting effective and consistent 

oversight of the global swaps market. At 

the same time, however, opening access 

to SDR data to other regulators may 

increase opportunities for unauthorized 

or unnecessary data disclosures, which 

could negatively impact swap market 

participants. Congress took into account 

these costs and benefits associated with 

broader SDR data access in adopting 

and amending CEA section 21, which 

supports access to swap data by 

appropriate regulators provided that, 

consistent with CEA section 8, the data 

accessed falls within their scope of 

jurisdiction and the data is provided on 

a confidential basis. In formulating the 

amendments to Part 49 that make up 

this final rule, the Commission has been 

mindful of the tradeoff between these 

dual objectives embodied in the 


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120 In support of its goal to reduce costs, the final 

rule is harmonized in many respects with the 

corollary SEC Indemnification Rule implementing 

changes to its security-based swap data access rules 

following adoption of the FAST Act. This 

rulemaking also is in accord with two recent 

recommendations issued by the U.S. Department of 

the Treasury (‘‘Treasury’’) in a recent report in 

which Treasury recommended greater 

harmonization between the CFTC and the SEC and 

stated that greater coordination is required among 

the CFTC, SEC and prudential regulators. See A 

Financial System That Creates Economic 

Opportunities[:] Capital Markets (Oct. 6, 2017) 

(‘‘Report’’) at 9, available at https://

www.treasury.gov/press-center/press-releases/ 

Documents/A-Financial-System-Capital-MarketsFINAL-FINAL.pdf. 

121See section 4r of the CEA, 7 U.S.C. 6r, added 

to the CEA by section 729 of the Dodd-Frank Act. 

122See generally Data Final Rules at 2136–2137 

(observing that Dodd-Frank was enacted to reduce 

systemic risk, increase transparency, and promote 

market integrity within the financial system by, 

among other things creating rigorous recordkeeping 

and data reporting regimes with respect to swaps); 

Margin Requirements for Uncleared Swaps for 

Swap Dealers and Major Swap Participants—CrossBorder Application of the Margin Requirements 81 

FR 34817, 34819 (May 31, 2016) (observing that as 

the 2008 financial crisis illustrated, complex 

financial and operational relationships 

demonstrated how the transfer of risk associated 

with swaps is not always transparent and can be 

difficult to fully assess.). 

mandate of CEA sections 21(c)(7) and 

(d), endeavoring to reduce the costs to 

regulators of obtaining, and to SDRs of 

providing, access to swap data, while 

also establishing sufficient processes 

and conditions to ensure that data 

access is appropriately scoped and 

confidentiality is maintained.120

2. Benefits 

a. Background 

In the fall of 2008, a series of large 

financial institution failures triggered a 

financial and economic crisis that 

threatened global financial markets. As 

a result of these failures, the government 

intervened to ensure the stability of the 

U.S. financial system. These failures 

revealed the vulnerability of the U.S. 

financial system and economy to 

widespread systemic risk resulting from, 

among other things, poor risk 

management practices of financial firms 

and the lack of supervisory oversight— 

specifically data concerning over-thecounter (‘‘OTC’’) derivatives activity— 

for a financial institution as a whole. 

The financial crisis also illustrated the 

significant risks that an uncleared, OTC 

derivatives market can pose to the 

financial system. Swap markets were 

opaque, and financial institutions were 

significantly interconnected through 

counterparty credit risk. This exposed 

the financial system to contagion 

through spreading defaults and losses. 

For example, concerned with the size of 

AIG’s credit default swap exposure, the 

Federal government infused $180 

billion of taxpayer money into AIG in 

order to prevent AIG’s failure, which the 

Federal government was concerned may 

have led to cascading defaults by AIG 

creditors and counterparties and other 

creditors and counterparties indirectly 

exposed to AIG through credit and swap 

transactions. The legislative response to 

the Great Recession, the Dodd-Frank 

Act, stipulated that data representing 

OTC derivatives, in general, be reported 

to SDRs in order to cultivate robust 

oversight of financial entities and 

identify risks to the liquidity, stability, 

and functioning of the financial 

system.121 The Commission anticipates 

that access by ADRs and AFRs to swap 

data reported to SDRs, in combination 

with future sharing with the 

Commission of swap data reported to 

trade repositories in other jurisdictions, 

in part as a result of this rulemaking, 

will facilitate greater inter-agency 

cooperation, collaboration on matters 

concerning systemic risk, and 

identification and mitigation of future 

financial crises. 

b. High-Level Benefits 

At a high level, this rulemaking is 

expected to assist other regulators in 

performing their supervisory and 

regulatory functions by providing them, 

for the first time, access to SDR swap 

data, which would help regulators better 

understand the risks their regulated 

entities are assuming and the impact of 

such risks on the broader markets. 

These supervisory and regulatory 

functions may include: Monitoring and 

mitigating systemic risk; ensuring 

financial stability; registration and 

oversight of financial market 

infrastructures, trading venues and/or 

market participants; central bank 

activities; prudential supervision; 

restructuring or resolution of 

infrastructures and firms; and regulation 

of cash markets, in some of which swap 

counterparties are active.122 Regulators 

may also be able to increase the benefits 

of receiving SDR swap data by 

discussing the results of their analyses, 

subject to the conditions and limitations 

of the confidentiality arrangement 

required by § 49.18(a), including 

restrictions on onward sharing. The 

Commission believes regulatory 

coordination is beneficial. 

Access to SDR swap data may also 

facilitate collaboration among the 

Commission, ADRs and AFRs in 

comparing the results of their respective 

SDR swap data analyses. Providing 

regulators access to SDR swap data 

should also facilitate cooperation among 

market and prudential regulators, which 

sometimes view data in isolation, given 

their different responsibilities, regulated 

entities, missions, and—as it relates to 

this rule making—data sets. In 

particular, such access may improve 

early warning systems that might 

ultimately reduce the probability or 

severity of a crisis, or both. The benefits 

of regulatory collaboration and broader 

access to swap data are likely to persist, 

if not expand, over time as regulators 

gain experience working together, while 

the burden required for establishing 

access to swap data includes an upfront 

commitment of time and money that is 

likely to diminish over time (although 

some increased operating costs resulting 

from this rulemaking will remain). 

The Commission believes that the 

implementation of this rulemaking 

represents a critical element of effective 

financial market oversight by providing 

access to SDR data to ADRs and AFRs. 

The Commission acknowledges that 

performing systemic risk analysis is 

very difficult as a result of the 

fragmented regulatory structure that 

exists both domestically and 

internationally. The financial markets 

are global in nature and contain 

correlated instruments dispersed across 

different regulatory authorities and 

jurisdictions. Regulating such markets 

utilizing only the data and information 

available through one particular 

regulator’s regime is suboptimal. For 

instance, when conducting oversight of 

treasury futures and interest rate swap 

markets, it is not sufficient to only 

assess the available futures and swaps 

data at the Commission’s disposal. 

Oversight of activity in those markets 

and associated risk also requires trading 

activity and position information 

regarding treasury bonds, repurchase 

agreements and reverse repurchase 

agreements. Similarly, regulating the 

credit and equity asset classes would 

benefit from information concerning 

related cash market activity in equity 

securities, corporate bonds, derivatives 

(on broad and narrow CDS and equity 

indexes, single-name CDS and equities, 

and bespoke transactions), 

securitizations, repurchase agreements 

and securities lending. The same 

applies to conducting comprehensive 

risk analysis and oversight of other asset 

classes. Similarly, in regulating swap 

dealers, the Commission would benefit 

from obtaining visibility into their 

positions in other jurisdictions to form 

a complete picture of their risk profiles. 

The Commission may face challenges 

in analyzing overall market, 

counterparty, or systemic risk accurately 

with only the data at its disposal via 

recordkeeping and reporting pursuant to 

the CEA and the Commission’s 

regulations promulgated thereunder. 


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123SDR Letter at 3. 

124NPRM at 8375, n.42; see also, NPRM at 8381 

(Paperwork Reduction Act discussion of 

recordkeeping burdens). 

125SDR Letter at 6. 

126See id. 

127 Id. 

128 Id. 

129 Id. 

130The swap data provided in the pre-formatted 

reports or through the Web-based portals would be 

limited to swap data within the particular ADR’s or 

AFR’s scope of jurisdiction, as described in the 

appendix to the confidentiality arrangement 

required by § 49.18(a). 

Prudential, bank, and market regulators 

likely face similar challenges in 

assessing the overall market, 

understanding patterns and flows, and 

identifying concerning trends based 

solely on data available pursuant to 

their own individual regulatory regimes. 

These limitations presumably impact 

similarly situated regulators across the 

global financial system. 

In light of the issues flowing from 

incomplete data, the Commission 

expects this rule to generate substantial 

benefits by fostering a regulatory 

environment that supports broader data 

access across the regulatory community 

and expands the accessibility of SDR 

swap data to other regulators, thereby 

supporting holistic oversight and data 

driven policy making at the regulatory 

level. The probability of successfully 

overseeing the prevailing market 

structure of the financial system and 

preventing another crisis increases as 

more ADRs and AFRs access SDR swap 

data and incorporate it into their 

existing analysis and workflows. 

Although this rule only provides other 

regulators access to swap data 

maintained at SDRs regulated by the 

Commission, the Commission expects 

the rulemaking to encourage similar 

access by the Commission to swap data 

maintained at trade repositories 

regulated by other authorities, which 

would increase the benefits of the rule 

discussed above accordingly. 

c. More Specific Benefits 

i. MOUs 

Under current § 49.17(b)(2), the 

existence of a current MOU or similar 

type of information sharing arrangement 

with the Commission automatically 

qualifies a Foreign Regulator as an AFR. 

The Commission is amending 

§ 49.17(b)(2) to require all ‘‘Foreign 

Regulators’’ who wish to receive swap 

data from SDRs to file an application 

with the Commission to be Commissiondetermined ‘‘Appropriate Foreign 

Regulators’’ and requires the 

Commission to issue an order finding 

each Foreign Regulator to be an 

‘‘appropriate’’ recipient of SDR swap 

data. The Commission believes that this 

modification will ensure that Foreign 

Regulators are acting within the scope of 

their jurisdiction, consistent with CEA 

sections 21(c)(7) and 8(e) and should 

reduce the risk of unauthorized 

disclosure, misappropriation or misuse 

of swap data. The SDR Commenters also 

commented that an MOU or other 

information sharing agreement alone 

potentially could have imprecise 

language and bespoke arrangements that 

would not provide sufficient indication 

of a regulator’s appropriateness.123 By 

requiring use of the Confidentiality 

Arrangement Form or permitting an 

alternative arrangement with the same 

elements, the Commission is 

establishing confidentiality safeguards 

that are tailored to the provision of swap 

data by an SDR to an ADR or an AFR. 

In addition, as the Commission stated in 

the NPRM and in the preamble above in 

sections II.B.4. and 5., it can take into 

account additional considerations or 

circumstances it may deem relevant on 

a case-by-case basis in making an 

appropriateness determination. This can 

benefit the appropriateness 

determination process by permitting the 

Commission to consider factors such as 

those identified by the SDR 

Commenters. 

ii. Duty for SDRs To Notify the 

Commission of Swap Data Requests 

From ADRs and AFRs 

Current § 49.17(d)(4)(i) requires an 

SDR to promptly notify the Commission 

regarding any request from an ADR or 

AFR for access to swap data. The 

Commission is amending current 

§ 49.17(d)(4)(i) to require such notices 

only promptly after the SDR receives an 

initial request for access to swap data 

from a particular ADR or AFR and 

promptly after receiving a request from 

an ADR or AFR that does not comport 

with the scope of the ADR’s or AFR’s 

jurisdiction, as described in the 

appendix to the confidentiality 

arrangement required by § 49.18(a). The 

Commission expects this to benefit 

SDRs by significantly reducing the 

number of notices and the associated 

costs. The change might also benefit 

ADRs and AFRs by expediting the time 

it takes for them to get access to SDR 

swap data. 

iii. Form of Electronic Notification by 

SDRs to the Commission 

Current § 49.17(d)(4)(ii) requires an 

SDR to notify the Commission, 

electronically in a format specified by 

the Secretary of the Commission, of any 

request from an ADR or AFR for access 

to swap data. The Commission is 

specifying the format in the adopting 

release. This will benefit SDRs by 

providing clarity and specificity as to 

the particular means of notice required 

such that they can develop such means 

of notice expeditiously so that SDRs can 

provide such notices soon after they 

receive requests for SDR swap data from 

ADRs and AFRs. This, in turn, might 

benefit ADRs and AFRs by expediting 

their access to such swap data. 

iv. Clarification of SDR Recordkeeping 

Obligations 

In the NPRM, the Commission 

explained that an SDR’s obligation to 

maintain records of all information 

related to the initial and all subsequent 

requests by an ADR or AFR for swap 

data access would require retaining 

records including, among other things, 

copies of all data reports and other 

aggregation of data provided in 

connection with the request for 

access.124 The SDR Commenters stated 

that that proposed requirement ‘‘should 

be amended to avoid imposing 

unnecessary costs.’’ 125 The SDR 

Commenters characterized that 

proposed recordkeeping requirement as 

burdensome, challenging to implement, 

and potentially decreasing information 

security, because the requirements 

could require an SDR ‘‘to propagate a 

given data set more than once.’’ 126

As an alternative to maintaining such 

reports, the SDR Commenters offered to 

create pre-formatted data reports, which 

they would make available for 

download by ADRs and AFRs ‘‘so that 

the record of access to such reports 

[would] be easily identifiable, in lieu of 

maintaining logs of queries and query 

conditions . . . .’’127 The SDR 

Commenters added that, if the 

Commission adopted their alternative, 

‘‘the parameters of the reports and the 

logic which is used to populate the 

reports is all that should have to be 

maintained.’’ 128 The SDR Commenters 

contended that the Commission should 

require only ‘‘the saving of metadata 

around reports rather than the actual 

reports[.]’’ 129

As discussed above in section 

II.D.2.ii., the SDR Commenters 

explained in discussions with staff that 

they plan to provide swap data access 

to ADRs and AFRs in one of two ways: 

(1) Via pre-formatted reports that the 

SDR Commenters would make available 

for download by ADRs and AFRs or 

send to ADRs and AFRs, in each case on 

a regular basis; or (2) via a Web-based 

portal through which ADRs and AFRs 

could conduct customized searches of 

swap data.130 In those discussions, the 


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131The Commission also is reserving the right, in 

new § 49.17(h)(4), to revisit, reassess, limit, suspend 

or revoke a Determination Order. The costs and 

benefits to ADRs, AFRs and SDRs are similar to the 

costs and benefits thereto discussed in this section 

with respect to § 49.17(d)(4)(iii) and (d)(5). 

132See discussion at section II.C.5., supra. 

133See, among other sections, section V.B.2. 

SDR Commenters explained that they 

would not consider it unduly 

burdensome to maintain records in 

those formats. 

As discussed above in section 

II.D.2.ii., the Commission is confirming 

that SDRs may satisfy their 

recordkeeping duties under 

§ 49.17(d)(4)(i) by maintaining records 

of, as applicable: (1) Their pre-formatted 

swap data reports; or (2)(a) the 

parameters of Web portal swap data 

access and (b) queries run by ADRs and 

AFRs using such access. This 

confirmation should lower costs to the 

SDRs by decreasing financial costs 

thereto, making recordkeeping simpler 

and decreasing cybersecurity risks, as 

the SDR Commenters noted. 

v. Limitation, Suspension or Revocation 

of an ADR’s or AFR’s Swap Data Access 

The Commission is requiring, in 

§ 49.17(d)(4)(iii), an SDR to limit, 

suspend, or revoke an ADR’s or AFR’s 

swap data access if the ADR’s or AFR’s 

scope of jurisdiction changes and the 

Commission directs the SDR to limit, 

suspend, or revoke the ADR’s or AFR’s 

swap data access.131 Similarly, 

§ 49.17(d)(5) requires an SDR to limit, 

suspend, or revoke an ADR’s or AFR’s 

swap data access if the Commission 

limits, suspends or revokes the ADR’s or 

AFR’s appropriateness determination or 

otherwise directs the SDR, in writing, to 

limit, suspend, or revoke the ADR’s or 

AFR’s swap data access. Although these 

sections will impose costs on both SDRs 

(which will be required to build into 

their systems a means of limiting, 

suspending, or revoking an ADR’s or 

AFR’s swap data access; this could be as 

simple as, for example, requiring a user 

name and password to obtain swap data 

access and deactivating such login 

credentials) and ADRs and AFRs (which 

may temporarily or permanently lose 

access to some or all SDR swap data), 

the Commission believes this is an 

unavoidable and appropriate corollary 

of the requirement in CEA section 

21(c)(7) that ADRs’ and AFRs’ SDR 

swap data access be on a confidential 

basis pursuant to CEA section 8,’’ 

which, as discussed throughout this 

release, requires, among other things, 

that the swap data provided be within 

the scope of an ADR’s or AFR’s 

jurisdiction. Although CEA section 

21(c)(7) also directs SDRs to provide 

ADRs and AFRs SDR swap data access, 

such access is subject to the foregoing 

conditions, among others. Therefore, 

§ 49.17(d)(4)(iii) and (d)(5) will benefit 

market participants by keeping their 

swap data confidential, as intended by 

Congress, if an ADR’s or AFR’s 

jurisdiction changes such that it is no 

longer entitled to such swap data or if 

other factors lead the Commission to 

limit, suspend, or revoke an ADR’s or 

AFR’s swap data access to ensure that 

confidentiality is maintained. The ‘‘in 

writing’’ requirement of § 49.17(d)(5) 

will benefit SDRs by ensuring that all 

SDRs are aware of any changes in status 

with respect to an appropriateness 

determination, as the SDR Commenters 

requested.132

vi. Confidentiality Arrangements 

Current §§ 49.17(d)(6) and 49.18(b) 

require the confidentiality agreement 

required by CEA section 21(d) to be 

entered into between an ADR or AFR 

seeking SDR swap data access and each 

SDR from which the ADR or AFR seeks 

such access. The Commission is 

amending those rules to require that 

such confidentiality arrangements be 

entered into between an ADR or AFR, as 

one party, and the Commission, rather 

than an SDR, as the other party. This 

will benefit SDRs by shifting from SDRs 

to the Commission the costs of 

negotiating confidentiality arrangements 

with an estimated 300 133 ADRs and 

AFRs. This will also benefit ADRs and 

AFRs by enabling them to negotiate a 

single confidentiality arrangement with 

the CFTC to access swap data from each 

SDR rather than a separate agreement 

with each of the SDRs from which they 

would seek swap data. 

The Commission also is requiring the 

use of the Confidentiality Arrangement 

Form, unless the Commission waives 

this requirement. The Commission 

expects this to benefit ADRs and AFRs 

by allowing them to avoid expending 

resources coming up with their own 

confidentiality arrangement forms and 

avoid the uncertainty of not knowing 

what provisions the Commission would 

accept, reject or negotiate. The 

Commission expects this to benefit 

SDRs as well in that most, if not all, 

confidentiality arrangements will be the 

same, making them easier to incorporate 

into their policies and procedures and 

build swap data access around. Overall, 

the Commission believes that this rule 

will increase the potential benefits and 

cost savings associated with use of the 

Confidentiality Arrangement Form 

while still providing ADRs and AFRs 

the flexibility to use an alternate 

arrangement if necessary, in 

consultation with the Commission. 

vii. Means of Access 

The Commission is not requiring 

SDRs to provide access to swap data to 

ADRs and AFRs through a specific 

technological means. Each SDR operates 

with different legacy systems and 

infrastructure, preferred data formats 

and delivery methods, and unique 

change management processes. The 

Commission prescribing a specific 

means of access for the swap data could 

subject different SDRs to greater/lesser 

costs, thereby disadvantaging one/some 

over other(s). Presumably, SDRs will 

choose the least costly means of access, 

all else being equal, as a result of the 

flexibility provided by the Commission. 

Thus, the flexibility afforded SDRs to 

choose the means of access through 

which they provide swap data access to 

ADRs and AFRs will benefit SDRs. 

More ADRs and AFRs accessing SDR 

swap data (as a result of the removal of 

the statutory and regulatory 

indemnification requirements that ADRs 

and AFRs refused to submit to) also has 

the potential to improve the quality of 

swap data. For instance, ADRs and 

AFRs might assert their authority over 

the entities that they regulate to require 

or encourage them to submit better and/ 

or more data. If swap data quality 

improves, ADRs and AFRs can make 

better-informed supervisory decisions to 

reduce risks. Although the Commission 

is not mandating the use of LEIs to 

delineate an ADR’s or AFR’s scope of 

jurisdiction for purposes of SDR swap 

data access, the Commission anticipates 

the use of LEIs to that end. If ADRs and 

AFRs do use LEIs for that purpose, the 

Commission believes that it will be 

relatively straightforward for SDRs to 

provide ADRs and AFRs access to 

appropriate swap data, relative to 

alternatives such as ADRs and AFRs 

providing legal memoranda describing 

the scope of their jurisdictions, which 

SDRs would then need to parse and 

translate into field descriptions, which 

is how SDR swap data are organized. 

Similarly, although the Commission is 

not mandating the use of UPIs (or if no 

CFTC-approved UPI and product 

classification system is yet available, the 

internal product identifier or product 

description used by the SDR) to 

delineate an ADR’s or AFR’s scope of 

jurisdiction, the Commission anticipates 

the potential use of UPIs to that end. If 

ADRs and AFRs do use UPIs for that 

purpose, the Commission believes that 

it will be relatively easier for SDRs to 

provide ADRs and AFRs access to 

appropriate swap data, relative to the 


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134See, e.g., Registered Entity Cyber proposed 

rulemaking at 80141 (observing that ‘‘there has . . . 

been a rise in attacks by . . . hacktivists . . . aimed 

at . . . [, among other things,] theft of data or 

intellectual property. . . . ’’); id. at 80189 

(Concurring Statement of then-Commissioner 

Bowen) (stating that ‘‘our firms are facing an 

unrelenting onslaught of attacks from hackers with 

a number of motives ranging from petty fraud to 

international cyberwarfare.’’). 

135While the same risks of misuse and 

misappropriation exist with respect to swap data 

maintained at SDRs, SDRs are regulated, and 

subject to sanctions, by the Commission, whereas 

ADRs and AFRs are not. 

136NPRM at 82 FR 8384. 

137The Commission acknowledges, however, that 

it is in the best interest of ADRs and AFRs, as 

Congress recognized in passing the FAST Act, for 

the process and parameters established by this 

rulemaking to be utilized and swap data to be made 

accessible to ADRs and AFRs. 

138Pursuant to § 49.17(h), applicants will have to 

describe to the Commission the scope of their 

jurisdiction so that that description can be provided 

to SDRs so that SDRs will know the contours of the 

swap data access they can provide to applicants. 139The wage rate used here is a composite 

(blended) wage rate by averaging the mean annual 

salaries of an Assistant/Associate General Counsel, 

an Assistant Compliance Director, and a 

Programmer (Senior) as published in the 2013 

SIFMA Report and dividing that figure by 1,800 

annual working hours and multiplying by 1.3 to 

account for the overhead for a government 

employee to arrive at the hourly rate of 

approximately $85. 

alternative of not using a UPI to describe 

the scope of their jurisdictions. 

3. Costs 

a. Background 

The Commission recognizes that there 

are different types of costs associated 

with this rulemaking. In the NPRM, the 

Commission stated that: 

[o]ne cost is the potential harm to market 

participants and the public if swap data is 

misused—for example, inappropriately 

disclosed by ADRs and AFRs. Or, another 

harmful scenario might involve 

misappropriated data where hackers pilfer 

swap data from ADRs and AFRs to learn the 

positions of market participants so that the 

hackers, or other interested parties who may 

even pay for such information, scam the 

market. Such bad actors might be able to 

anticipate such market participants’ trades 

and trade in front of them, raising swap 

trading costs to market participants, thereby 

reducing their profits.134 If the 

aforementioned scenario occurred frequently 

enough this might induce swap dealers to 

widen their spreads, making hedging more 

expensive. In turn, this might lead to suboptimal business and investment strategies, 

as parties would be less willing to participate 

in swap markets, because it would be more 

costly. Further, the scenario posed could 

cause market participants to be concerned 

that their business strategies might be tipped 

to their competitors, because with stolen 

data, somebody might be able to infer their 

strategies from knowing their swap positions 

and how these positions change in response 

to relevant economic events.135 Such 

concerns could lead some market 

participants to withdraw to some extent from 

swap markets, reducing liquidity and 

potentially inducing them to use less 

effective hedging instruments or trading 

strategies in other markets.136

It is difficult to discern the likelihood 

of this misuse occurring, rendering it 

difficult to quantify related costs, for at 

least four reasons. First, data breaches 

can have different causes, from not 

upgrading to the most current software, 

to software glitches, to successful cyber 

attacks and improper procedures and 

protocols. Thus, it is difficult to develop 

a homogenous sample to use to analyze 

data breaches and what might 

reasonably be done to mitigate them 

(i.e., reduce the probability of their 

occurrence as well as their severity 

when they do occur). Furthermore, the 

Commission does not have access to 

such data even if they do exist. Second, 

data storage and dissemination 

technology is constantly changing. This 

may result in the manner in which data 

breaches occur changing over time in 

ways that are difficult to anticipate, as 

various parties adapt to new technology. 

Third, it is problematic to assess in 

advance the severity of a data breach 

because the severity is dependent on the 

particulars of a given breach that cannot 

be easily anticipated. Fourth, it would 

be difficult, ex ante, to link data misuse 

to related profits and harms from 

specific transactions. 

b. High-Level Costs 

At a high level regarding costs to 

ADRs and AFRs, the less access to SDR 

swap data granted to ADRs and AFRs, 

the less such swap data would help in 

performing ADRs’ and AFRs’ 

supervisory and other regulatory 

functions. Similarly, the more 

impediments to swap data access, the 

longer it would take ADRs and AFRs to 

use, or the less use ADRs and AFRs 

could make of, such swap data. It is not 

mandatory for ADRs and AFRs to ask for 

access to SDR swap data, however. 

Thus, ADRs and AFRs can reduce their 

costs by not asking for swap data or by 

limiting the swap data they seek and/or 

the frequency with which they seek 

it.137 The Commission expects ADRs 

and AFRs will seek access to SDR swap 

data when they believe that the benefits 

associated with the access are worth 

incurring the costs associated with 

obtaining such access. 

c. ADRs’ and AFRs’ Costs 

The Commission is imposing several 

new obligations on Foreign Regulators 

and certain domestic regulators that will 

trigger costs for such regulators. 

i. Determination Order Applications 

Currently, § 49.17(b)(2) defines 

Foreign Regulators with either an MOU 

or a similar information sharing 

agreement in place with the 

Commission as ‘‘Appropriate Foreign 

Regulators.’’ As amended, however, 

§ 49.17(b)(2) replaces such automatic 

AFR status with a requirement that 

Foreign Regulators be determined by the 

Commission to be AFRs before such 

Foreign Regulators can obtain swap data 

from SDRs. This change will impose 

costs on each Foreign Regulator with an 

MOU, or similar information sharing 

agreement, seeking AFR status. The 

obligation for Foreign Regulators, and 

domestic regulators that are not 

enumerated in § 49.17(b)(1)(i) through 

(vi), to apply for a Determination Order 

conferring AFR or ADR status in order 

for such Foreign Regulators and 

unenumerated domestic regulators to be 

eligible to receive access to SDR swap 

data will, at a minimum, require such 

applicants to draft an application. Some 

applicants for ADR and AFR status may 

choose to retain outside counsel or 

another third party to draft the 

application, thereby incurring related 

costs; others might use their own staff. 

There also may be additional costs 

associated with the complexity of the 

application, because applicants for ADR 

and AFR status will have to explain 

their jurisdiction and link it to their 

requests for access to SDR swap data.138

While applicants will need to expend 

resources developing their 

‘‘appropriateness’’ applications, the 

Commission expects that the 

requirements and guidance it has 

provided in this release should reduce 

such expenditures to a certain extent. 

Nonetheless, the level of such 

expenditures will depend on the 

particulars of a given applicant. 

The Commission estimates that each 

requesting entity would on average 

expend 100 hours in connection with 

filing an application to receive a 

Determination Order. This estimate 

considers the relevant information that 

would be required to be provided in 

such an application, including 

information regarding the entity’s scope 

of jurisdiction, confidentiality 

safeguards, as well as any other 

information relevant for the 

Commission’s determination. The 

Commission monetizes the 30,000 

burden hours by multiplying by a wage 

rate of $85 139 or approximately $2.56 

million. 

ii. Confidentiality Arrangements 

The requirement in § 49.18(a) that 

SDRs receive an executed 


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140The Commission continues to believe that 

ADRs and AFRs would likely have established 

safeguards to protect sensitive data other than swap 

data and that such safeguards could be adapted to 

address the requirements of the confidentiality 

arrangement. 

confidentiality arrangement from an 

ADR or AFR before the SDR can provide 

the ADR or AFR swap data is based on 

a corresponding requirement set forth in 

CEA section 21(d) and will impose costs 

on ADRs and AFRs. CEA section 21(d) 

does not specify any details of the 

required written agreement other than 

that it must state that the ADR or AFR 

shall abide by CEA section 8’s 

confidentiality requirements. The 

Commission, however, is adopting, in 

Appendix B to part 49, a Confidentiality 

Arrangement Form providing for ADRs 

and AFRs to implement a number of 

safeguards to effectuate the 

confidentiality protections mandated by 

CEA section 21(c)(7). The 

Confidentiality Arrangement Form can 

be expected to limit ADRs’ and AFRs’ 

flexibility to use confidentiality 

arrangements more tailored to their 

specific needs, but this is offset to some 

extent by corresponding benefits 

discussed above in section V.C.3.vi. and 

by the fact that the Commission retained 

the discretion to negotiate changes to 

the Confidentiality Arrangement Form. 

iii. Data Security 

Section 6 of the Confidentiality 

Arrangement Form contains a number of 

undertakings designed to prevent 

unauthorized disclosure of swap data. 

Given that ADRs and AFRs already 

likely have existing data security 

policies, procedures and safeguards, the 

Commission continues to believe that 

the costs of developing safeguards in 

response to such undertakings would 

likely be only a incremental addition to 

their existing data security costs, and 

the other costs of complying with these 

burdens, such as the costs to develop 

policies, procedures and safeguards, are 

within the scope of ADRs’ and AFRs’ 

expertise (and thus would likely not 

require ADRs or AFRs to retain outside 

experts to develop).140 Given that ADRs 

and AFRs can elect not to seek access 

to swap data from SDRs and that ADRs 

and AFRs who do seek such access have 

some control over the scope and 

frequency of the swap data they seek 

and the manner in which they seek to 

analyze such swap data, ADRs and 

AFRs themselves can influence to some 

degree the costs they impose on 

themselves by seeking access to swap 

data from SDRs. 

iv. Onward Sharing 

Section 7 of the Confidentiality 

Arrangement Form would prohibit 

ADRs and AFRs from onward sharing 

Confidential Information with other 

parties, with limited exceptions. This 

could impose some costs in that ADRs 

and AFRs would not be able to freely 

share swap data among themselves, 

which could reduce the utility of the 

swap data to ADRs and AFRs, possibly 

reducing the effectiveness thereof. 

However, because CEA section 21(c)(7) 

requires that SDRs share swap data with 

ADRs and AFRs on a confidential basis 

pursuant to CEA section 8,’’ and CEA 

section 8(e) also prohibits onward 

sharing, the onward sharing prohibition 

in section 7 of the Confidentiality 

Arrangement Form is required by the 

CEA. 

v. Means of Access 

In addition, the fact that the 

Commission is electing not to specify a 

particular means of ADRs and AFRs 

accessing swap data could result in 

SDRs providing a means of access other 

than a means preferred by ADRs and 

AFRs. This might impose additional 

costs on ADRs and AFRs relative to the 

potentially lesser costs of their preferred 

means of access. 

The Commission prescribing a 

particular means of access could result 

in costs to either ADRs/AFRs or SDRs. 

Specifically, costs borne by ADRs/AFRs 

might be shifted to SDRs or vice versa 

as a particular means of access changes. 

The Commission chooses to not force all 

SDRs to use a single means of providing 

access, thus requiring some or all SDRs 

to alter their systems, since it is not 

possible to distinguish a single means of 

access that would be preferable to all 

ADRs, AFRs and SDRs. Because of these 

uncertainties, the Commission is unable 

to quantify these costs but is able to 

identify such costs qualitatively. The 

Commission recognizes that allowing 

SDRs to choose the means by which 

they provide swap data access may 

impose costs of adapting to a particular 

means of access on ADRs and AFRs. 

However, given the large number of 

ADRs and AFRs who may seek SDR 

swap data access and the large potential 

variation in their preferred means of 

access, and given the limited number of 

SDRs and potential means of access, the 

Commission believes that ADRs and 

AFRs, in general, can more easily bear 

the burden of adapting to SDRs’ choices 

of means of access than vice versa. 

d. SDRs’ Costs 

i. Providing New Access Generally 

For SDRs, providing swap data access 

to so many potential ADRs and AFRs 

may be expensive. For example, SDRs 

may be forced to purchase new servers, 

hire new system administrators to 

oversee the new swap data/system usage 

and troubleshoot related problems that 

may arise. Maintaining new records 

pursuant to new recordkeeping 

requirements also could require more 

resources. The requirement for an SDR 

not to provide swap data to an ADR or 

AFR unless the SDR has determined 

that the swap data is within the thencurrent scope of the ADR’s or AFR’s 

jurisdiction, as described in the 

appendix to the confidentiality 

arrangement required by § 49.18(a), may 

cause SDRs to elect to create new 

methods for parsing swap data to 

comply with the requirement to so limit 

swap data access. Further, if the SDRs 

send data to ADRs and AFRs, then they 

will incur costs to transmit the data. 

These costs include the cost of 

expanding their capacity to disseminate 

data as well as the cost to parse existing 

data to verify that it is within the thencurrent scope of the ADR’s or AFR’s 

jurisdiction, as described in the 

appendix to the confidentiality 

arrangement required by § 49.18(a). 

ii. Providing Notice to the Commission 

Current § 49.17(d)(4)(i) requires SDRs 

to notify the Commission of any request 

for access to swap data from a particular 

ADR or AFR. The Commission’s 

amendments would reduce that burden 

by permitting SDRs to notify the 

Commission only of the first such 

request by each ADR or AFR and of any 

request that does not comport with the 

scope of the ADR’s or AFR’s 

jurisdiction, as described in the 

appendix to the confidentiality 

arrangement required by § 49.18(a). The 

obligation to notify the Commission of 

various other actions also will increase 

SDRs’ costs, although to the extent that 

such notice obligations are not triggered, 

such cost increases would be tempered 

accordingly. Nevertheless, SDRs 

presumably would need to incur some 

costs to develop policies and 

procedures, and build out systems, to 

monitor potential events that would 

trigger the new notice requirements. 

iii. Verifying That a Swap Data Request 

Is Within an ADR’s/AFR’s Scope of 

Jurisdiction 

Other SDR costs will include those 

related to SDRs determining that each 

access request by an ADR or AFR is 

within the scope of the ADR’s or AFR’s 


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141However, if the request changes, each affected 

SDR must make a new determination. The 

Commission believes this is unavoidable due to 

requirement in CEA section 21(c)(7) that swap data 

be provided by SDRs to ADRs and AFRs on a 

confidential basis pursuant to section 8, and that 

any related costs flow from this statutory 

requirement. 

142This assumes that ADRs and AFRs choose to 

develop such lists, which the Commission 

continues to anticipate that they would. 

143 In addition, if the scope of an ADR’s or AFR’s 

jurisdiction supports receiving all swap data with 

respect to entities over which an ADR or AFR 

exercises oversight, the ADR or AFR may not need 

to use product identifiers at all—it may be able to 

use LEIs alone to describe the scope of its 

jurisdiction. 

jurisdiction, as required by 

§ 49.17(d)(4)(iii). This will require SDRs 

to expend resources to ensure that they 

do not improperly disclose swap data to 

an ADR or AFR. However, the 

Commission believes these costs will be 

mitigated substantially in at least two 

ways. First, § 49.17(d)(4)(iv) provides 

that an SDR must make the scope of 

jurisdiction determination only once 

with respect to a recurring swap data 

request, thus ensuring no duplication of 

effort.141 Second, § 49.17(d)(4)(iii) 

provides that the only source an SDR 

must consult in determining an ADR’s 

or AFR’s scope of jurisdiction is the 

appendix to the confidentiality 

arrangement required by § 49.18(a). To 

the extent ADRs and AFRs provide lists 

of LEIs, and possibly also UPIs of swaps, 

within the scope of ADRs’ and AFRs’ 

jurisdiction, which the Commission 

continues to expect that they will, this 

would limit the resources SDRs must 

expend to verify whether swap data 

access requests are within the scope of 

an ADR’s or AFR’s jurisdiction.142 No 

legal analysis would be required on an 

SDR’s part, greatly reducing potential 

costs. SDRs’ costs would come from 

ensuring that the access they provide 

ADRs and AFRs to swap data via SDRs’ 

systems is no greater than or less than 

the swap data to which ADRs and AFRs 

are entitled based on the scope of the 

ADRs’ or AFRs’ jurisdiction, as 

described in the appendix to the 

confidentiality agreement required by 

§ 49.18(a). 

The Commission believes that the use 

of LEIs, and potentially UPIs, to 

effectively determine which SDR swap 

data should be provided to ADRs/AFRs 

is a reasonable option, although it has 

some relatively minor drawbacks 

unrelated to the amendments in this 

final rule (e.g., some blank or incorrect 

data entries remain in LEI fields, LEIs 

are masked in a number of cases to 

reflect certain other jurisdictions’ 

privacy law limits on disclosure, and 

the Commission has yet to designate a 

UPI and product classification system, 

and SDRs each have developed their 

own separate pre-UPI product 

identifiers in the interim). Despite those 

drawbacks, the Commission believes 

LEIs and pre-UPI product identifiers 

may be useful in describing ADRs’ and 

AFRs’ scopes of jurisdiction.143

The Commission acknowledges that 

lists of LEIs of ADRs’ and AFRs’ 

regulated entities and lists of UPIs or 

other product identifiers of swaps 

within ADRs’ and AFRs’ jurisdiction 

may have to be updated from time to 

time as regulated entities move in and 

out of ADRs’ and AFRs’ jurisdiction, 

ADRs’ and AFRs’ jurisdiction expands 

or contracts, swaps evolve, and new 

types of swaps are introduced. In these 

cases, for example, an ADR or AFR 

likely would have to modify 

periodically the list of LEIs and UPIs or 

product identifiers it gives to SDRs, 

imposing some costs on SDRs as they 

incorporate such changes (and imposing 

some costs on ADRs and AFRs to 

monitor their LEI and UPI or product 

identifier lists and update SDRs and the 

Commission periodically regarding any 

changes). 

The Commission continues to believe 

that the rule would further mitigate the 

costs to SDRs by permitting them to 

verify that a data access request falls 

within the scope of an ADR’s or AFR’s 

jurisdiction just once for a recurring 

request the details of which do not 

change. SDRs might incur additional 

costs, however, if the scope of an ADR’s 

or AFR’s jurisdiction, or other factors 

discussed in the prior paragraph, 

change. Such additional costs include 

some fraction of the costs, discussed 

above, of verifying that an ADR’s or 

AFR’s swap data access request falls 

within the scope of the ADR’s or AFR’s 

jurisdiction. Additionally, ADRs and 

AFRs would incur some costs to notify 

the Commission of changes in 

jurisdiction. 

iv. Means of Access 

The Commission is not requiring 

SDRs to use a particular means of 

providing access to swap data to ADRs 

and AFRs. The Commission is not 

specifying a means of access because the 

Commission has allowed SDRs to build 

their systems as they saw fit and does 

not want to impose undue costs by 

requiring SDRs to all grant access via a 

specific means, which could impose 

greater costs on certain SDRs based on 

how they chose to build their systems. 

The Commission notes that SDRs 

already provide the Commission and the 

National Futures Association (‘‘NFA’’) 

with swap data access. Given that SDRs 

have already incurred many fixed costs 

in granting access to the Commission 

and NFA, in providing ADRs and AFRs 

access, the SDRs may benefit from 

economies of scale, reducing SDRs’ 

costs. The rule would also mitigate 

SDRs’ costs by permitting them to 

choose the means by which they will 

provide access to swap data to ADRs 

and AFRs. The Commission expects that 

SDRs would choose the lowest cost 

means of access consistent with their 

statutory obligation to provide ADRs 

and AFRs access to swap data and other 

constraints. The Commission continues 

to believe that it cannot forecast what 

these costs are because they depend on 

particulars of each SDR that the 

Commission still does not know. 

Further, the Commission anticipates 

that many of these particulars will 

change over time as various parties 

adapt to technological changes. 

However, the Commission has estimated 

costs where it can, based in part on 

comments it received in the SDR Letter, 

as discussed below. 

v. Recordkeeping 

The Commission is amending current 

§ 49.17(d)(4)(i) to require SDRs to 

maintain records of the details of the 

initial, and all subsequent, requests for 

access to swap data from an ADR or 

AFR. Each SDR would have to maintain 

this information for the same period 

required for other SDR records. The 

Commission anticipates that such costs 

will be relatively small and anticipates 

using such data to, for example, monitor 

ADRs’ and AFRs’ access requests from 

time to time to ensure that they remain 

within the scope of their jurisdiction 

and, relatedly, to ensure that SDRs have 

been monitoring this access issue. 

4. Response to Comments 

The Commission requested comments 

on all aspects of the NPRM and further 

requested that commenters provide any 

data or other information that would be 

useful in the estimation of the 

quantifiable costs and benefits of this 

rulemaking. The Commission received 

substantive comments from the SDR 

Commenters on the Commission’s PRA 

burden hour estimates provided in the 

NPRM. Those comments are 

incorporated in the Commission’s cost 

estimates for the burdens on SDRs, 

ADRs, and AFRs. 

The Commission is requiring, in 

§ 49.17(d)(4)(iii), that an SDR not 

provide an ADR or AFR access to swap 

data, unless the SDR has determined 

that the swap data is within the thencurrent scope of the ADR’s or AFR’s 

jurisdiction, as described in the 

appendix to the confidentiality 


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144See SDR Letter at 5, n.10. 

145The hourly wage rate used to estimate the 

costs associated with these requirements is $329, 

which is a weighted average of salaries and bonuses 

across different professions from the SIFMA Report 

on Management & Professional Earnings in the 

Securities Industry 2013, modified to account for an 

1800-hour work-year and multiplied by 5.35 to 

account for overhead and other benefits. The 

Commission-estimated appropriate wage rate is a 

weighted national average of salary and bonuses for 

professionals with the following titles (and their 

relative weight): ‘‘programmer (senior)’’ (10% 

weight); ‘‘programmer’’ (30%); ‘‘compliance advisor 

(intermediate)’’ (20%); ‘‘compliance attorney’’ 

(30%), and ‘‘assistant/associate general counsel’’ 

(10%). 

146See SDR Letter at 7, n.15. 

arrangement required by § 49.18(a). The 

Commission received one comment 

estimating the burden on SDRs 

associated with setting up access 

restrictions to match an ADR’s or AFR’s 

described scope of jurisdiction.144 In the 

SDR Letter, CME estimated the initial 

setup cost to be between 400 and 950 

hours for all ADRs and AFRs in the 

aggregate. The Commission believes it is 

reasonable to accept CME’s estimate of 

950 hours, as CME is an SDR and, as 

such, is familiar with the costs required 

for setting up such access restrictions. 

Consequently, for PRA and CBC 

purposes, the Commission estimates 

that SDRs would incur a total burden of 

3,800 hours (i.e., the product of 950 

hours of time and four SDRs) associated 

with setting up SDR swap data access 

for all ADRs and AFRs. The 

Commission monetizes these burden 

hours at an hourly wage rate of $329 145

yielding a cost of approximately 

$1,250,200. 

As noted in the PRA discussion 

above, the Commission estimates that 

each SDR would incur an annual 

burden of 480 hours associated with the 

requirement to maintain records of the 

details of the initial and all subsequent 

requests for data from an ADR or AFR, 

for a total of 1,920 hours annually (i.e., 

the product of four SDRs and 480 

hours). The Commission received one 

comment related to setup costs 

associated with its proposed 

recordkeeping requirements.146 The 

SDR Letter provided estimates for 

recordkeeping setup costs. CME 

subsequently provided updated 

estimates of the setup costs, which CME 

now estimates would be approximately 

1,100–1,440 hours. The Commission 

believes it is reasonable to accept CME’s 

estimate of 1,440 hours, as CME is an 

SDR and, as such, is familiar with the 

setup costs associated with SDR 

recordkeeping requirements. Therefore, 

the Commission estimates that initially 

each SDR may incur a burden of 1,440 

hours associated with these 

recordkeeping requirements, for a total 

of 5,760 hours (i.e., the product of four 

SDRs and 1,440 hours). The 

Commission monetizes these burden 

hours by using a wage rate of $329 

yielding a cost of $1,895,040. However, 

as discussed in this release, the 

recordkeeping requirements adopted 

herein may result in lower costs to the 

SDRs than estimated here, as the 

Commission is not requiring SDRs to 

keep records of all data reports provided 

in response to data requests, as it had 

proposed in the NPRM. 

5. Alternatives Considered 

As one alternative to comprehensive 

swap data safeguards, the Commission 

instead could have chosen to merely 

delete the indemnification references in 

its regulations. While that approach 

could have avoided imposing on ADRs, 

AFRs, and SDRs many of the costs 

related to protection of confidentiality 

discussed herein, it would have 

dramatically increased the risk of 

imposing on market participants and the 

public the costs discussed above in the 

first paragraph of section IV.C.4. and 

below in section IV.C.7.a.–c., which the 

Commission continues to believe is 

inconsistent with the historical 

importance Congress and the 

Commission have placed on protecting 

information covered by CEA section 8. 

Consequently, the Commission has 

determined to take the selected 

approach. 

The Commission also considered and 

rejected the idea of specifying a means 

of ADRs and AFRs accessing swap data. 

The Commission rejected this as being 

too prescriptive, given that the 

Commission previously permitted SDRs 

the discretion to build their systems as 

they saw fit and for the other reasons 

discussed above in the means of access 

discussion. 

The Commission also considered 

prohibiting SDRs from continuing to 

provide ADRs and AFRs swap data 

access during the period commencing 

with a contraction in an ADR’s or AFR’s 

scope of jurisdiction and considered 

reducing the time SDRs are permitted to 

update their systems to reflect the new 

jurisdiction. While the Commission 

retains the authority to do so, as stated 

above, it expects ADRs and AFRs will 

notify the Commission upon learning of 

a potential jurisdictional restriction. The 

Commission expects that, with such 

advance notice, SDRs can be more 

prepared to adjust their systems 

accordingly shortly after an ADR’s or 

AFR’s jurisdiction is limited. The 

Commission prefers to retain the 

discretion to address these situations, 

which it expects to be rare, case-by-case. 

6. Consideration of CEA Section 15(a) 

Factors 

CEA section 15(a) requires the 

Commission to consider the costs and 

benefits of its actions before 

promulgating a regulation under the 

CEA or issuing certain orders. CEA 

section 15(a) further specifies that the 

costs and benefits shall be evaluated in 

light of the following five broad areas of 

market and public concern: (1) 

Protection of market participants and 

the public; (2) efficiency, 

competitiveness, and financial integrity 

of futures markets; (3) price discovery; 

(4) sound risk management practices; 

and (5) other public interest 

considerations. The Commission 

considers the costs and benefits 

resulting from its discretionary 

determinations with respect to the CEA 

section 15(a) factors. 

a. Protection of Market Participants and 

the Public 

The Commission believes that the 

final rules will equip ADRs and AFRs to 

better understand the risks that are 

undertaken by their regulated entities, 

and thus be better positioned to take 

appropriate action as needed, because 

they will be able to better understand 

their regulatees’ swap transactions by 

virtue of having access to SDR swap 

data. 

The Commission is adopting a 

number of safeguards to prevent market 

participants’ swap data maintained at 

SDRs from being misappropriated or 

misused as a result of ADR and AFR 

access to such swap data. The 

safeguards include: Modifying the 

requirements for being an AFR; a 

requirement that the Commission issue 

a Determination Order for 

unenumerated authorities to obtain SDR 

swap data access; requiring authorities 

applying for a Determination Order to 

demonstrate that they are acting within 

the scope of their jurisdiction in seeking 

access to SDR swap data; imposing on 

ADRs and AFRs seeking access to swap 

data maintained by SDRs a number of 

required confidentiality safeguards; 

barring onward sharing of swap data; 

imposing on SDRs certain 

recordkeeping and reporting 

requirements; and ensuring the 

Commission’s ability to revoke an 

ADR’s or AFR’s swap data access. 

b. Efficiency, Competitiveness, and 

Financial Integrity of Futures Markets 

The Commission continues to believe 

that there will be little effect on 

efficiency, competiveness, and financial 

integrity of futures markets if swap data 

is properly protected from being 


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misappropriated or misused. While the 

Commission believes that the final rules 

adopted herein will properly protect 

swap data from being misappropriated 

or misused, the possibility of such 

misconduct cannot be eliminated 

entirely. If such misappropriation or 

misuse occurs, the efficiency and 

competitiveness of markets might be 

affected. 

c. Price Discovery 

The Commission continues to believe 

that price discovery would not be 

affected by this rulemaking, provided 

that swap data is properly protected. 

However, the Commission notes that 

there might be some indirect effects on 

price discovery if the swap data 

protection safeguards in this rulemaking 

are ineffective. If such protections prove 

ineffective, market participants may be 

less willing to execute swaps, as their 

identities, strategies, and/or positions 

may be revealed. Ineffective data 

safeguards might harm price discovery 

if bid/ask spread widens as a result. If 

so, observed prices might become more 

volatile because they would oscillate 

between a wider bid/ask spread. 

d. Sound Risk Management Practices 

Access to SDR swap data will help 

ADRs and AFRs to better understand the 

risks posed by their regulated entities. 

With access to such swap data, ADRs 

and AFRs can more comprehensively 

supervise entities that engage in swap 

trading and better understand their 

exposure to losses. Allowing more ADRs 

and AFRs to access SDR swap data may 

improve SDR data, too. This 

improvement might occur by facilitating 

research and analysis that ultimately 

leads to better risk management by 

market participants. This can occur 

through ADR/AFR research directed at 

improving the risk management 

techniques through, for instance, better 

metrics, instruments, and hedging 

techniques. Further, swaps data 

reporting may also be improved by 

ADRs and AFRs asserting their authority 

over their regulated entities to 

encourage or compel them to improve 

their swap data reporting and risk 

management. 

e. Other Public Interest Considerations 

The Commission finds that the 

ministerial changes to § 49.17(d)(1) 

discussed above in section II.G.2. may 

benefit ADRs, AFRs and those persons 

seeking to become ADRs and AFRs by 

providing, in one place, a brief overview 

of all of the requirements applicable to 

such persons obtaining access to SDR 

swap data and the circumstances in 

which such requirements are not 

applicable. 

The Commission also finds that the 

ministerial changes that it is adopting to 

the bracketed text at the end of 

Appendix B to part 49 (describing 

Exhibit A to the Confidentiality 

Arrangement Form), drawn from section 

II.D.2.c.i. of the preamble, may benefit 

ADRs and AFRs by also including in 

part 49 of the Commission regulations 

the instructions and guidance provided 

in the preamble as to how to describe 

their scopes of jurisdiction in practical 

terms SDRs can implement. As with the 

Commission’s ministerial changes to 

§ 49.17(d)(1), such simplification should 

make obtaining SDR swap data 

modestly less burdensome and costly 

for ADRs and AFRs by reducing their 

staff time needed to go through the 

process. 

The Commission is also making 

changes to §§ 49.17(d)(6) and 49.18(a) to 

promote the use of the Confidentiality 

Arrangement Form set forth in 

Appendix B, providing that the ability 

of an ADR or AFR to execute a 

confidentiality arrangement that is not 

in the form set forth in Appendix B to 

this part 49 is at the discretion of the 

Commission. To the extent that this 

clarification results in more ADRs and 

AFRs executing the Confidentiality 

Arrangement Form, the Commission 

expects that this could result in modest 

savings for ADRs and AFRs. The 

Commission also expects that using the 

Confidentiality Arrangement Form will 

save staff time in the negotiation and 

execution of alternative arrangements. 

Other than the foregoing, the 

Commission has not found any other 

public interest considerations to be 

implicated by this rulemaking. 

D. Antitrust Considerations 

CEA section 15(b) requires the 

Commission to take into consideration 

the public interest to be protected by the 

antitrust laws and endeavor to take the 

least anticompetitive means of 

achieving the objectives of the CEA, in 

issuing any order or adopting any 

Commission rule or regulation. 

The Commission does not anticipate 

that the amendments to part 49 that it 

is adopting today will result in 

anticompetitive behavior because, 

among other things, the Commission is 

allowing SDRs to determine which 

means of access they will use to provide 

ADRs and AFRs swap data access (thus, 

allowing SDRs to ‘‘compete’’ on that 

basis). However, in the NPRM the 

Commission encouraged comments 

from the public on any aspect of the 

proposal that may have had the 

potential to be inconsistent with the 

antitrust laws or be anticompetitive in 

nature. 

The Commission received no 

antitrust-related comments. 

Consequently, the Commission 

continues to not anticipate that the 

amendments to part 49 that it is 

adopting today will result in 

anticompetitive behavior. 

List of Subjects in 17 CFR Part 49 

Swap data repositories; Registration 

and regulatory requirements; Access to 

swap data; Confidentiality; Commodity 

Exchange Act section 8. 

For the reasons stated in the 

preamble, the Commodity Futures 

Trading Commission amends 17 CFR 

part 49 as set forth below: 

PART 49—SWAP DATA 

REPOSITORIES 

■ 1. The authority citation for part 49 is 

revised to read as follows: 

Authority: 7 U.S.C. 12a, and 24a, unless 

otherwise noted. 

■ 2. In § 49.2, revise paragraph (a)(5) to 

read as follows: 

§ 49.2 Definitions. 

(a) * * * 

(5) Foreign Regulator. The term 

‘‘foreign regulator’’ means a foreign 

futures authority as defined in Section 

1a(26) of the Act, foreign financial 

supervisors, foreign central banks, 

foreign ministries and other foreign 

authorities. 

* * * * * 

■ 3. In § 49.9, revise paragraph (a)(9) to 

read as follows: 

§ 49.9 Duties of registered swap data 

repositories. 

(a) * * * 

(9) Upon request of Appropriate 

Domestic Regulators and Appropriate 

Foreign Regulators, provide access to 

swap data held and maintained by the 

swap data repository, as prescribed in 

§ 49.17; 

* * * * * 

■ 4. In § 49.17: 

■ a. Revise paragraphs (a), (b)(1)(vii), 

(b)(2), and (c)(2); 

■ b. Revise the first sentence of 

paragraph (c)(2) and the first sentence of 

paragraph (c)(3); 

■ c. Revise paragraphs (d)(1) through 

(3), (d)(4)(i) through (iv), and (d)(5) and 

(6), (e) and (f); and 

■ d. Add paragraphs (h) and (i). 

The revisions and addtions read as 

follows: 

§ 49.17 Access to SDR data. 

(a) Purpose. This section provides a 

procedure by which the Commission, 


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other domestic regulators and foreign 

regulators may obtain access to the swap 

data held and maintained by registered 

swap data repositories. Except as 

specifically set forth in this section, the 

Commission’s duties and obligations 

regarding the confidentiality of business 

transactions or market positions of any 

person and trade secrets or names of 

customers identified in Section 8 of the 

Act are not affected. 

(b) * * * 

(1) * * * 

(vii) Any other person the 

Commission determines to be 

appropriate pursuant to the process set 

forth in paragraph (h) of this section. 

(2) Appropriate Foreign Regulator. 

The term ‘‘Appropriate Foreign 

Regulator’’ shall mean those Foreign 

Regulators the Commission determines 

to be appropriate pursuant to the 

process set forth in paragraph (h) of this 

section. 

* * * * * 

(c) * * * 

(2) Monitoring tools. A registered 

swap data repository is required to 

provide the Commission with proper 

tools for the monitoring, screening and 

analyzing of swap data, including, but 

not limited to, Web-based services, 

services that provide automated transfer 

of data to Commission systems, various 

software and access to the staff of the 

swap data repository and/or third-party 

service providers or agents familiar with 

the operations of the registered swap 

data repository, which can provide 

assistance to the Commission regarding 

data structure and content. * * * 

(3) Authorized users. The swap data 

provided to the Commission by a 

registered swap data repository shall be 

accessible only by authorized 

users. * * * 

(d) Other Regulators—(1) General 

Procedure for Gaining Access to 

Registered Swap Data Repository Data. 

Except as set forth in paragraph (d)(2) or 

(3) of this section— 

(i) A person who is not an 

Appropriate Domestic Regulator or an 

Appropriate Foreign Regulator and who 

seeks to gain access to the swap data 

maintained by a swap data repository is 

required to first become an Appropriate 

Domestic Regulator or Appropriate 

Foreign Regulator through the process 

set forth in paragraph (h) of this section, 

and 

(ii) Appropriate Domestic Regulators 

and Appropriate Foreign Regulators 

seeking to gain access to the swap data 

maintained by a swap data repository 

are required to apply for access by filing 

a request for access with the registered 

swap data repository and certifying that 

it is acting within the scope of its 

jurisdiction, comply with paragraph 

(d)(6) of this section prior to receiving 

such access and, if applicable after 

receiving such access, comply with the 

notification requirement in paragraph 

(d)(4)(iii) of this section applicable to 

Appropriate Domestic Regulators and 

Appropriate Foreign Regulators. 

(2) Domestic regulator with regulatory 

responsibility over a swap data 

repository. When a swap data repository 

that is registered with the Commission 

pursuant to this chapter is also 

registered with a domestic regulator 

pursuant to a separate statutory 

authority, and such domestic regulator 

seeks access to swap data that has been 

reported to such swap data repository 

pursuant to the domestic regulator’s 

regulatory regime, such access is not 

subject to the requirements of sections 

21(c)(7) or 21(d) of the Act, this 

paragraph (d) or § 49.18. 

(3) Foreign Regulator with regulatory 

responsibility over a swap data 

repository. When a swap data repository 

that is registered with the Commission 

pursuant to this chapter is also 

registered with, or recognized or 

otherwise authorized by, a Foreign 

Regulator that has supervisory authority 

over such swap data repository pursuant 

to foreign law and/or regulation, and 

such Foreign Regulator seeks access to 

swap data that has been reported to 

such swap data repository pursuant to 

the Foreign Regulator’s regulatory 

regime, such access is not subject to the 

requirements of sections 21(c)(7) or 

21(d) of the Act, this paragraph (d) or 

§ 49.18. 

(4) * * * 

(i) A registered swap data repository 

shall notify the Commission promptly 

after receiving an initial request from an 

Appropriate Domestic Regulator or 

Appropriate Foreign Regulator to gain 

access to swap data maintained by such 

swap data repository and promptly after 

receiving any request that does not 

comport with the scope of the 

Appropriate Domestic Regulator’s or 

Appropriate Foreign Regulator’s 

jurisdiction, as described and appended 

to the confidentiality arrangement 

required by § 49.18(a). Each registered 

swap data repository shall maintain 

records thereafter, pursuant to § 49.12, 

of the details of such initial request and 

of all subsequent requests by such 

Appropriate Domestic Regulator or 

Appropriate Foreign Regulator for such 

access. 

(ii) The registered swap data 

repository shall notify the Commission 

electronically, in a format specified by 

the Secretary of the Commission, of the 

receipt of a request specified in 

paragraph (d)(4)(i) of this section. 

(iii) The registered swap data 

repository shall not provide an 

Appropriate Domestic Regulator or 

Appropriate Foreign Regulator access to 

swap data maintained by the swap data 

repository unless the swap data 

repository has determined that the swap 

data to which the Appropriate Domestic 

Regulator or Appropriate Foreign 

Regulator seeks access is within the 

then-current scope of such Appropriate 

Domestic Regulator’s or Appropriate 

Foreign Regulator’s jurisdiction, as 

described and appended to the 

confidentiality arrangement required by 

§ 49.18(a). An Appropriate Domestic 

Regulator or Appropriate Foreign 

Regulator that has executed a 

confidentiality arrangement with the 

Commission pursuant to § 49.18(a) and 

provided such confidentiality 

arrangement to one or more swap data 

repositories shall notify the Commission 

and each such swap data repository of 

any change to such Appropriate 

Domestic Regulator’s or Appropriate 

Foreign Regulator’s scope of jurisdiction 

as described in such confidentiality 

arrangement. The Commission may 

direct a swap data repository to 

suspend, limit, or revoke access to swap 

data maintained by such swap data 

repository based on any such change to 

such Appropriate Domestic Regulator’s 

or Appropriate Foreign Regulator’s 

scope of jurisdiction, and, if so directed 

in writing, such swap data repository 

shall so suspend, limit, or revoke such 

access. 

(iv) The registered swap data 

repository need not make the 

determination required pursuant to 

paragraph (d)(4)(iii) of this section more 

than once with respect to a recurring 

swap data request. If such request 

changes, the swap data repository must 

make a new determination pursuant to 

paragraph (d)(4)(iii) of this section. 

(5) Timing; Limitation, Suspension or 

Revocation of Swap Data Access. Once 

a registered swap data repository has— 

(i) Notified the Commission, pursuant 

to paragraphs (d)(4)(i) and (ii) of this 

section, of an initial request for swap 

data access by an Appropriate Domestic 

Regulator or Appropriate Foreign 

Regulator, as applicable, that was 

submitted pursuant to paragraph (d)(1) 

of this section, 

(ii) Received from such Appropriate 

Domestic Regulator or Appropriate 

Foreign Regulator a confidentiality 

arrangement executed by the 

Commission and such Appropriate 

Domestic Regulator or Appropriate 

Foreign Regulator as required by 

§ 49.18(a), and 


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(iii) Satisfied its obligations under 

paragraph (d)(4)(iii) of this section, such 

swap data repository shall provide 

access to the requested swap data; 

provided, however, that such swap data 

repository shall, if directed by the 

Commission in writing, limit, suspend 

or revoke such access should the 

Commission limit, suspend or revoke 

the appropriateness determination for 

such Appropriate Domestic Regulator or 

Appropriate Foreign Regulator or 

otherwise direct the swap data 

repository, in writing, to limit, suspend 

or revoke such access. 

(6) Confidentiality Arrangement. 

Consistent with § 49.18(a), the 

Appropriate Domestic Regulator or 

Appropriate Foreign Regulator shall, 

prior to receiving access to any 

requested swap data, execute the form 

of confidentiality arrangement set out in 

Appendix B of this part with the 

Commission; provided, however, that 

the Commission may, in its discretion, 

agree to execute a confidentiality 

arrangement with an Appropriate 

Domestic Regulator or Appropriate 

Foreign Regulator that is not in the form 

set forth in Appendix B of this part, if 

the confidentiality arrangement is 

consistent with the requirements set 

forth in § 49.18(b). 

(e) Third-party service providers to a 

registered swap data repository. Access 

to the swap data and SDR Information 

maintained by a registered swap data 

repository may be necessary for certain 

third parties that provide various 

technology and data-related services to 

a registered swap data repository. Thirdparty access to the swap data and SDR 

Information maintained by a swap data 

repository is permissible subject to the 

following conditions: 

(1) Both the registered swap data 

repository and the third party service 

provider shall have strict confidentiality 

procedures that protect swap data and 

SDR Information from improper 

disclosure. 

(2) Prior to a registered swap data 

repository granting access to swap data 

or SDR Information to a third-party 

service provider, the third-party service 

provider and the registered swap data 

repository shall execute a 

confidentiality agreement setting forth 

minimum confidentiality procedures 

and permissible uses of the swap data 

and SDR Information maintained by the 

swap data repository that are equivalent 

to the privacy procedures for swap data 

repositories outlined in § 49.16. 

(f) Access by market participants—(1) 

General. Access by market participants 

to swap data maintained by the 

registered swap data repository is 

prohibited other than as set forth in 

paragraph (f)(2) of this section. 

(2) Exception. Swap data and 

information related to a particular swap 

that is maintained by the registered 

swap data repository may be accessed 

by either counterparty to that particular 

swap. However, the swap data and 

information maintained by the 

registered swap data repository that may 

be accessed by either counterparty to a 

particular swap shall not include the 

identity or the legal entity identifier (as 

such term is used in part 45 of this 

chapter) of the other counterparty to the 

swap, or the other counterparty’s 

clearing member for the swap, if the 

swap is executed anonymously on a 

swap execution facility or designated 

contract market, and cleared in 

accordance with Commission 

regulations in §§ 1.74, 23.610, and 

37.12(b)(7) of this chapter. 

* * * * * 

(h) Appropriateness determination 

process. (1) Each person seeking an 

appropriateness determination pursuant 

to this paragraph shall file an 

application with the Commission. 

(2) Each applicant seeking an 

appropriateness determination shall 

provide sufficient detail in its 

application to permit the Commission to 

analyze whether the applicant is acting 

within the scope of its jurisdiction in 

seeking access to swap data maintained 

by a registered swap data repository, 

and whether the applicant employs 

appropriate confidentiality safeguards to 

ensure that any swap data such 

applicant receives from a registered 

swap data repository will not, except as 

allowed for in the form of 

confidentiality arrangement set forth in 

Appendix B to this part 49, be 

disclosed. 

(3) If the Commission determines that 

an applicant pursuant to this paragraph 

is, conditionally or unconditionally, 

appropriate for purposes of CEA section 

21(c)(7), the Commission shall issue an 

order setting forth its appropriateness 

determination. The Commission shall 

not determine that an applicant 

pursuant to this paragraph is 

appropriate unless the Commission is 

satisfied that— 

(i) The applicant employs appropriate 

confidentiality safeguards to ensure that 

any swap data such applicant receives 

from a registered swap data repository 

will not be disclosed, except as allowed 

for in the form of confidentiality 

arrangement set forth in Appendix B to 

this part 49 or, in the Commission’s 

discretion as set forth in paragraph 

(d)(6) of this section, in a different form, 

provided that such confidentiality 

arrangement contains the elements 

required in § 49.18(b), and 

(ii) Such applicant is acting within 

the scope of its jurisdiction in seeking 

access to swap data from a registered 

swap data repository. 

(4) The Commission reserves the 

right, in connection with any 

appropriateness determination with 

respect to an Appropriate Domestic 

Regulator or Appropriate Foreign 

Regulator, to revisit, reassess, limit, 

suspend or revoke such determination 

consistent with the Act. 

(i) Delegation of Authority Relating to 

Certain matters in this section. (1) The 

Commission hereby delegates, until 

such time as the Commission orders 

otherwise, the following functions to the 

Director of the Division of Market 

Oversight and to such members of the 

Commission’s staff acting under his or 

her direction as he or she may designate 

from time to time: All functions 

reserved to the Commission in this 

section. 

(2) The Director of the Division of 

Market Oversight may submit any 

matter which has been delegated under 

paragraph (i)(1) of this section to the 

Commission for its consideration. 

(3) Nothing in this section may 

prohibit the Commission, at its election, 

from exercising the authority delegated 

under paragraph (i)(1) of this section. 

■ 5. Revise § 49.18 to read as follows: 

§ 49.18 Confidentiality arrangement. 

(a) Confidentiality arrangement 

required prior to disclosure of swap data 

by a registered swap data repository to 

an Appropriate Domestic Regulator or 

Appropriate Foreign Regulator. Prior to 

a registered swap data repository 

providing access to swap data to any 

Appropriate Domestic Regulator or 

Appropriate Foreign Regulator, each as 

defined in § 49.17(b), the swap data 

repository shall receive from such 

Appropriate Domestic Regulator or 

Appropriate Foreign Regulator, 

pursuant to Section 21(d) of the Act, an 

executed confidentiality arrangement 

between the Commission and the 

Appropriate Domestic Regulator or 

Appropriate Foreign Regulator, as 

applicable, in the form set forth in 

Appendix B to this part 49 or, in the 

Commission’s discretion as set forth in 

§ 49.17(d)(6), in a different form, 

provided that such confidentiality 

arrangement contains the elements 

required in paragraph (b) of this section. 

Such confidentiality arrangement must 

include, either as Exhibit A to the form 

set forth in Appendix B of this part or 

similarly appended, a description of the 

Appropriate Domestic Regulator’s or 


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1The first bracketed phrase will be used for 

ADRs; the second will be used for AFRs. The 

inapplicable phrase will be deleted. 

Appropriate Foreign Regulator’s 

jurisdiction. Once a registered swap 

data repository is notified, in writing, 

that a confidentiality arrangement 

received from an Appropriate Domestic 

Regulator or Appropriate Foreign 

Regulator no longer is in effect, the 

swap data repository shall not provide 

access to swap data to such Appropriate 

Domestic Regulator or Appropriate 

Foreign Regulator. 

(b) Elements of confidentiality 

arrangement. The confidentiality 

arrangement required pursuant to 

paragraph (a) of this section shall, at a 

minimum, include all elements 

included in the form of confidentiality 

arrangement set forth in appendix B of 

this part. 

(c) Reporting failures to fulfill the 

terms of a confidentiality arrangement. 

A registered swap data repository shall 

immediately report to the Commission 

any known failure to fulfill the terms of 

a confidentiality arrangement that it 

receives pursuant to paragraph (a) of 

this section. 

(d) Failures to fulfill the terms of the 

confidentiality arrangement. The 

Commission may, if an Appropriate 

Domestic Regulator or Appropriate 

Foreign Regulator fails to fulfill the 

terms of a confidentiality arrangement 

described in paragraph (a) of this 

section, direct, in writing, each 

registered swap data repository to limit, 

suspend or revoke such Appropriate 

Domestic Regulator’s or Appropriate 

Foreign Regulator’s access to swap data 

held by such swap data repository. 

(e) Delegation of authority relating to 

certain matters in this section. (1) The 

Commission hereby delegates, until 

such time as the Commission orders 

otherwise, the following functions to the 

Director of the Division of Market 

Oversight and to such members of the 

Commission’s staff acting under his or 

her direction as he or she may designate 

from time to time: All functions 

reserved to the Commission in this 

section. 

(2) The Director of the Division of 

Market Oversight may submit any 

matter which has been delegated under 

paragraph (e)(1) of this section to the 

Commission for its consideration. 

(3) Nothing in this section may 

prohibit the Commission, at its election, 

from exercising the authority delegated 

under paragraph (e)(1) of this section. 

■ 6. In § 49.22, revise paragraph (d)(4) to 

read as follows: 

§ 49.22 Chief compliance officer. 

* * * * * 

(d) * * * 

(4) Taking reasonable steps to ensure 

compliance with the Act and 

Commission regulations relating to 

agreements, contracts, or transactions, 

and with Commission regulations under 

Section 21 of the Act, including 

confidentiality arrangements received 

by the chief compliance officer’s 

registered swap depository pursuant to 

§ 49.18(a); 

* * * * * 

■ 7. Add appendix B to part 49 to read 

as follows: 

Appendix B to Part 49—Confidentiality 

Arrangement for Appropriate Domestic 

Regulators and Appropriate Foreign 

Regulators To Obtain Access To Swap 

Data Maintained by Registered Swap 

Data Respositories Pursuant to 

§§ 49.17(d)(6) and 49.18(a) 

The U.S. Commodity Futures Trading 

Commission (‘‘CFTC’’) and the [name of 

foreign/domestic regulator (‘‘ABC’’)] (each an 

‘‘Authority’’ and collectively the 

‘‘Authorities’’) have entered into this 

Confidentiality Arrangement 

(‘‘Arrangement’’) in connection with 

[whichever is applicable] [CFTC Regulation 

49.17(b)(1)[(i)–(vi)]/the determination order 

issued by the CFTC to [ABC] (‘‘Order’’)] and 

any request for swap data by [ABC] to any 

swap data repository (‘‘SDR’’) registered with 

the CFTC. 

Article One: General Provisions 

1. ABC is permitted to request and receive 

swap data directly from a registered SDR 

(‘‘Swap Data’’) on the terms and subject to 

the conditions of this Arrangement. 

2. This Arrangement is entered into to 

fulfill the requirements under Section 21(d) 

of the Commodity Exchange Act (‘‘Act’’) and 

CFTC Regulation 49.18. Upon receipt by a 

registered SDR, this Arrangement will satisfy 

the requirement for a written agreement 

pursuant to Section 21(d) of the Act and 

CFTC Regulation 49.17(d)(6). This 

Arrangement does not apply to information 

that is [reported to a registered SDR pursuant 

to [ABC]’s regulatory regime where the SDR 

also is registered with [ABC] pursuant to 

separate statutory authority, even if such 

information also is reported pursuant to the 

Act and CFTC regulations][reported to a 

registered SDR pursuant to [ABC]’s 

regulatory regime where the SDR also is 

registered with, or recognized or otherwise 

authorized by, [ABC], which has supervisory 

authority over the repository pursuant to 

foreign law and/or regulation, even if such 

information also is reported pursuant to the 

Act and CFTC regulations.] 1

3. This Arrangement is not intended to 

limit or condition the discretion of an 

Authority in any way in the discharge of its 

regulatory responsibilities or to prejudice the 

individual responsibilities or autonomy of 

any Authority. 

4. This Arrangement does not alter the 

terms and conditions of any existing 

arrangements. 

Article Two: Confidentiality of Swap Data 

5. ABC will be acting within the scope of 

its jurisdiction in requesting Swap Data and 

employs procedures to maintain the 

confidentiality of Swap Data and any 

information and analyses derived therefrom 

(collectively, the ‘‘Confidential 

Information’’). ABC undertakes to notify the 

CFTC and each relevant SDR promptly of any 

change to ABC’s scope of jurisdiction. 

6. ABC undertakes to treat Confidential 

Information as confidential and will employ 

safeguards that: 

a. To the maximum extent practicable, 

identify the Confidential Information and 

maintain it separately from other data and 

information; 

b. Protect the Confidential Information 

from misappropriation and misuse; 

c. Ensure that only authorized ABC 

personnel with a need to access particular 

Confidential Information to perform their job 


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functions related to such Confidential 

Information have access thereto, and that 

such access is permitted only to the extent 

necessary to perform their job functions 

related to such particular Confidential 

Information; 

d. Prevent the disclosure of aggregated 

Confidential Information; provided, however, 

that ABC is permitted to disclose any 

sufficiently aggregated Confidential 

Information that is anonymized to prevent 

identification, through disaggregation or 

otherwise, of a market participant’s business 

transactions, trade data, market positions, 

customers or counterparties; 

e. Prohibit use of the Confidential 

Information by ABC personnel for any 

improper purpose, including in connection 

with trading for their personal benefit or for 

the benefit of others or with respect to any 

commercial or business purpose; and 

f. Include a process for monitoring 

compliance with the confidentiality 

safeguards described herein and for promptly 

notifying the CFTC, and each SDR from 

which ABC has received Swap Data, of any 

violation of such safeguards or failure to 

fulfill the terms of this Arrangement. 

7. Except as provided in Paragraphs 6.d. 

and 8, ABC will not onward share or 

otherwise disclose any Confidential 

Information. 

8. ABC undertakes that: 

a. If a department, central bank, or agency 

of the Government of the United States, it 

will not disclose Confidential Information 

except in an action or proceeding under the 

laws of the United States to which it, the 

CFTC, or the United States is a party; 

b. If a department or agency of a State or 

political subdivision thereof, it will not 

disclose Confidential Information except in 

connection with an adjudicatory action or 

proceeding brought under the Act or the laws 

of [name of either the State or the State and 

political subdivision] to which it is a party; 

or 

c. If a foreign futures authority or a 

department, central bank, ministry, or agency 

of a foreign government or subdivision 

thereof, or any other Foreign Regulator, as 

defined in Commission Regulation 49.2(a)(5), 

it will not disclose Confidential Information 

except in connection with an adjudicatory 

action or proceeding brought under the laws 

of [name of country, political subdivision, or 

(if a supranational organization) 

supranational lawmaking body] to which it 

is a party. 

9. Prior to complying with any legally 

enforceable demand for Confidential 

Information, ABC will notify the CFTC of 

such demand in writing, assert all available 

appropriate legal exemptions or privileges 

with respect to such Confidential 

Information, and use its best efforts to protect 

the confidentiality of the Confidential 

Information. 

10. ABC acknowledges that, if it does not 

fulfill the terms of this Arrangement, the 

CFTC may direct any registered SDR to 

suspend or revoke ABC’s access to Swap 

Data. 

11. ABC will comply with all applicable 

security-related requirements imposed by an 

SDR in connection with access to Swap Data 

maintained by the SDR, as such requirements 

may be revised from time to time. 

12. ABC will promptly destroy all 

Confidential Information for which it no 

longer has a need or which no longer falls 

within the scope of its jurisdiction, and will 

certify to the CFTC, upon request, that ABC 

has destroyed such Confidential Information. 

Article Three: Administrative Provisions 

13. This Arrangement may be amended 

with the written consent of the Authorities. 

14. The text of this Arrangement will be 

executed in English, and may be made 

available to the public. 

15. On the date this Arrangement is signed 

by the Authorities, it will become effective 

and may be provided to any registered SDR 

that holds and maintains Swap Data that falls 

within the scope of ABC’s jurisdiction. 

16. This Arrangement will expire 30 days 

after any Authority gives written notice to the 

other Authority of its intention to terminate 

the Arrangement. In the event of termination 

of this Arrangement, Confidential 

Information will continue to remain 

confidential and will continue to be covered 

by this Arrangement. 

This Arrangement is executed in duplicate, 

this lll day of lll. 

lllllllllllllllllllll

[name of Chairman] 

Chairman 

U.S. Commodity Futures Trading 

Commission 

lllllllllllllllllllll

[name of signatory] 

[title] 

[name of foreign/domestic regulator] 

[Exhibit A: Description of Scope of 

Jurisdiction. If ABC is not enumerated in 

Commission Regulations 49.17(b)(1)(i)–(vi), it 

must attach the Determination Order 

received from the Commission pursuant to 

Commission Regulation 49.17(h). If ABC is 

enumerated in Commission Regulations 

49.17(b)(1)(i)–(vi), it must attach a 

sufficiently detailed description of the scope 

of ABC’s jurisdiction as it relates to Swap 

Data maintained by SDRs. In both cases, the 

description of the scope of jurisdiction must 

include elements allowing SDRs to establish, 

without undue obstacles, objective 

parameters for determining whether a 

particular Swap Data request falls within 

such scope of jurisdiction. Such elements 

could include LEIs of all jurisdictional 

entities and could also include UPIs of all 

jurisdictional products or, if no CFTCapproved UPI and product classification 

system is yet available, the internal product 

identifier or product description used by an 

SDR from which Swap Data is to be sought.] 

Issued in Washington, DC, on June 5, 2018, 

by the Commission. 

Robert Sidman, 

Deputy Secretary of the Commission. 

Note: The following appendicies will not 

appear in the Code of Federal Regulations. 

Appendicies to Amendments to the 

Swap Data Access Provisions of Part 49 

and Certain Other Matters— 

Commission Voting Summary, 

Chairman’s Statement, and 

Commissioner’s Statement 

Appendix 1—Commission Voting 

Summary 

On this matter, Chairman Giancarlo and 

Commissioners Quintenz and Behnam voted 

in the affirmative. No Commissioner voted in 

the negative. 

Appendix 2—Statement of Chairman 

J. Christopher Giancarlo 

Eight years ago, Congress included in the 

Dodd-Frank Act a requirement that foreign 

and domestic regulators indemnify SDRs and 

the Commission for any expenses arising 

from litigation relating to the information 

provided by SDRs. Foreign and domestic 

regulators were unable or unwilling to 

provide this indemnification hindering the 

ability to share swaps data. The 

indemnification requirement also hindered 

the ability of foreign and domestic regulators 

to access SDR data to assess risks their 

regulated entities are assuming, and the 

impact of such risks on the broader markets. 

I am pleased that Congress has since 

amended the Dodd-Frank Act to take out the 

indemnification requirement. We therefore 

can change our regulations accordingly, 

which we propose to do today. 

In addition to the removal of the 

indemnification requirement, the final rule 

adds a category of ‘‘other regulators’’ that the 

Commission may deem to be appropriate to 

receive access to SDR swap data. 

The final rule sets out the process by 

which appropriateness is determined for 

those entities that are not already specifically 

enumerated. This process is a change to 

current Commission regulations, as it would 

apply to any such entity, including domestic 

regulators not enumerated in Commission 

regulations and foreign regulators. 

The statute also now requires a SDR to 

receive a written agreement from each 

requesting entity stating that the entity shall 

abide by the confidentiality requirements 

described in the CEA prior to sharing 

information with the requesting entity. 

Commission regulations currently require the 

SDR and the requesting regulator to execute 

a confidentiality agreement, but do not 

provide a form or details of such an 

agreement. 

The final rule modifies the current 

Commission regulations by providing a form 

of confidentiality arrangement, as Appendix 

B to part 49, and by requiring the 

confidentiality arrangement to be between 

the requesting regulator and the Commission. 

The Commission expects that this will 

benefit SDRs in that most, if not all, 

confidentiality arrangements will be exactly 

the same, and the Commission will be in the 

place of entering into the confidentiality 

agreements with regulators. 

We received comments from the affected 

CFTC-registered SDRs on the proposed rule 

that I believe that we have sufficiently 

addressed. The final regulations provide 


pmangrum on DSK30RV082PROD with RULES3
Federal Register / Vol. 83, No. 113 / Tuesday, June 12, 2018 / Rules and Regulations 27441 

1Public Law 114–94, 129 Stat 1312 (Dec. 4, 2015). 

2Public Law 111–203, 124 Stat 1376 (July 21, 

2010). 

long-awaited clarity to the official sector 

regarding the CFTC’s requirements to 

determine access to, and safeguard the 

confidentiality of, transactional information 

reported to SDRs. 

In my experience as a Commissioner and 

Chairman of the CFTC, I have found, as have 

other foreign and domestic regulators, that 

conducting oversight of global derivatives 

markets can be difficult as a result of the 

current fragmented financial regulatory 

structure. In this regard, I expect that the 

final rule will enable authorities to enhance 

their oversight of derivatives markets across 

product and asset classes by marrying up the 

trading and position data they receive from 

regulated entities with the data sets obtained 

directly from SDRs. In so doing, I believe we 

have made significant progress towards 

cross-border data sharing and enhancing 

transparency in the global swaps market. 

Because today’s swaps markets are global 

in scope, utilizing the data and information 

available in only one jurisdiction does not 

provide a complete picture of cross border 

trading activity and systemic risk. To that 

end, I expect that CFTC staff will seek to 

facilitate access to SDR data for authorities 

with which we have a history of regulatory 

assistance and that similarly seek to facilitate 

CFTC access to data maintained by trade 

repositories in their jurisdiction. Such data 

sharing represents an opportunity for greater 

cooperation among market and prudential 

regulators, as well as among foreign and 

domestic regulators, providing more effective 

financial market oversight, expanding data 

driven policymaking, and improving early 

warning systems to reduce the probability or 

severity of a financial crisis. 

These regulations will have a direct 

positive impact on the operational readiness 

of the official sector, providing authorities 

with critical information to make sound nearterm and long-term policy and oversight 

decisions. 

I am particularly pleased that this rule 

represents a final step in eliminating a major 

legal impediment to sharing swaps market 

data with overseas regulators. The DoddFrank Act’s original insistence on an 

indemnification requirement may have been 

well-intentioned to protect the safety of data 

held in SDRs, but Congress wisely 

determined that any such benefit is 

outweighed by the greater public interest of 

allowing international regulators to share and 

access information to carry out the regulatory 

and supervisory functions necessary to 

protect the global financial markets. 

It is essential that policymakers in other 

jurisdictions make determinations similar to 

these before us today concerning current 

legal barriers to information sharing. Even a 

law, like the new EU General Data Protection 

Regulation (GDPR), which has laudable 

objectives, must not be applied in ways that 

hinder the sharing and access of information 

between European and U.S. regulators for 

regulatory and supervisory purposes. Such a 

result could have dangerous implications for 

our global markets. I hope today’s action by 

the CFTC will encourage international 

regulators and policymakers to take 

affirmative steps to address other existing 

legal barriers to information sharing and 

access. 

Appendix 3—Supporting Statement of 

Commissioner Brian D. Quintenz 

I support today’s final rule addressing 

indemnification and amendments to the 

swap data access provisions of Part 49. I 

would like to thank the staff in our Division 

of Market Oversight for their work to amend 

Part 49 of the Commission’s Regulations to 

implement provisions of the Fixing 

America’s Surface Transportation Act of 2015 

(Fast Act) 1. 

The Fast Act amended provisions of Title 

VII of the Dodd-Frank Wall Street Reform 

and Consumer Protection Act of 2010 (DoddFrank Act) 2 that proved unworkable. Most 

significantly, the Fast Act repealed the DoddFrank Act’s requirement that to obtain data 

from swap data repositories (SDR) registered 

with the CFTC, domestic and foreign 

authorities must indemnify the CFTC and 

SDRs from any claims arising from a SDR’s 

production of information to those 

authorities. Foreign regulators unfamiliar 

with the U.S. tort law concept of 

‘‘indemnification’’ that is inconsistent with 

their traditions and legal structures, have 

opted against requesting any information 

from SDRs. Domestic regulators have also 

opted against requesting information from 

SDRs because of the indemnification 

requirement. Removing the indemnification 

requirement will facilitate the sharing of SDR 

information with domestic and foreign 

authorities and better enable regulators in the 

United States and abroad to monitor risk 

across the global financial system. 

[FR Doc. 2018–12377 Filed 6–11–18; 8:45 am] 

BILLING CODE 6351–01–P 


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