CFTC Proposes to Permanently Remove Swap Data Indemnity Requirement | Practical Law

CFTC Proposes to Permanently Remove Swap Data Indemnity Requirement | Practical Law

The CFTC has proposed amendments to Part 49 swap data access rules to increase access by foreign and domestic authorities.

CFTC Proposes to Permanently Remove Swap Data Indemnity Requirement

Practical Law Legal Update w-005-4261 (Approx. 3 pages)

CFTC Proposes to Permanently Remove Swap Data Indemnity Requirement

by Practical Law Finance
Published on 19 Jan 2017 • USA (National/Federal)
The CFTC has proposed amendments to Part 49 swap data access rules to increase access by foreign and domestic authorities.
On January 13, 2017, the CFTC announced proposed amendments to Part 49 swap data reporting rules governing access to swap data held by CFTC-registered swap data repositories (SDRs).
The proposed amendments would:
  • Remove the requirement originally contained in Commodity Exchange Act (CEA) Section 21(d)(2) (7 U.S.C. § 24a(d)) that a foreign or domestic authority seeking access to swap data from a SDR must first indemnify the CFTC and the SDR from any expenses resulting from litigation related to the information provided. This requirement was repealed by Congress on December 3, 2015 as part of the Fixing America's Surface Transportation Act (FAST Act) (see Legal Update, Fast Act Includes Dodd-Frank Swap Fix on Global Transparency), however, the confidentiality requirement in CEA Section 21(d)(1) is still in effect.
  • Allow access to swap data at a CFTC-registered SDR by domestic regulators (identified in CEA Section 21(c)(7)(A)) that execute a confidentiality agreement with the SDR and the CFTC pursuant to CEA Section 21(d)(1).
  • Allow access to swap data at a CFTC-registered SDR by other domestic authorities and all foreign authorities (identified in a non-exclusive list contained in CEA Section 21(c)(7)(E)) only after the CFTC has determined that such domestic and foreign authorities are appropriate recipients of the swap data.
The CFTC previously addressed the indemnity issue by issuing a proposed interpretive statement that exempted foreign regulators from the Dodd-Frank Act's indemnification and confidentiality provisions when requesting certain data from SDRs (see Legal Update, CFTC Proposes Swap Data Exemption for Foreign Regulators from Dodd-Frank Indemnification and Confidentiality Provisions).
The CFTC is accepting public comment on the proposed amendments for 60 days after publication of the proposed rule in the Federal Register. Comments may be submitted on the CFTC website and on the Federal eRulemaking Portal.