Time-Limited No-Action Relief Permitting Part 45 and Part 46 Reporting Counterparties to Mask Legal Entity Identifiers, Other Enumerated Identifiers and Other Identifying Terms and Permitting Part 20 Reporting Entitie...

Summary: Time-Limited No-Action Relief Permitting Part 45 and Part 46 Reporting Counterparties to Mask Legal Entity Identifiers, Other Enumerated Identifiers and Other Identifying Terms and Permitting Part 20 Reporting Entities to Mask Identifying Information, with respect to certain Enumerated Jurisdictions.

1

U.S. COMMODITY FUTURES TRADING COMMISSION

Three Lafayette Centre

1155 21st Street, NW, Washington, DC 20581

Telephone: (202) 418-5000

Facsimile: (202) 418-5521

www.cftc.gov

Division of Market Oversight

CFTC Letter No. 13-41

No-Action

June 28, 2013

Division of Market Oversight

Robert Pickel

Chief Executive Officer

International Swaps and Derivatives Association, Inc.

1001 Pennsylvania Avenue, NW Suite 600

Washington, DC 20004

Time-Limited No-Action Relief Permitting Part 45 and Part 46 Reporting Counterparties

to Mask Legal Entity Identifiers, Other Enumerated Identifiers and Other Identifying

Terms and Permitting Part 20 Reporting Entities to Mask Identifying Information, with

respect to certain Enumerated Jurisdictions.

Dear Mr. Pickel:

This is in response to your June 21, 2013 letter (the “Letter”) to the Division of Market Oversight

(the “Division”) of the Commodity Futures Trading Commission (the “Commission”). By the

Letter, you requested, pursuant to § 140.99 of the Commission’s regulations, on behalf of your

members with reporting obligations under Parts 20, 45 or 46 of the Commission’s regulations

(collectively, the “Reporting Rules”),1 and other similarly situated persons, an extension of the

expiration date for the no-action relief provided under CFTC Letter No. 12-46.

You request that the Division extend the expiration date of the relief granted under CFTC Letter

No. 12-46 with respect to reportable transactions for which the reporting of Identity Information2

is subject to statutory or regulatory prohibitions of one of the non-U.S

milarly situated persons, an extension of the

expiration date for the no-action relief provided under CFTC Letter No. 12-46.

You request that the Division extend the expiration date of the relief granted under CFTC Letter

No. 12-46 with respect to reportable transactions for which the reporting of Identity Information2

is subject to statutory or regulatory prohibitions of one of the non-U.S. jurisdictions listed in the

Annex to your Letter (each, an “Enumerated Jurisdiction”)3 until the earlier of: (i) the reporting

party no longer holding the requisite reasonable belief regarding the privacy law consequences of

reporting; and (ii) 12:01 a.m. eastern daylight time on June 30, 2014.

1 You note that the relief requested in the Letter also encompasses § 23.204 and § 23.205 of the Commission’s

regulations.

2 You define “Identity Information” as “information that would otherwise be required to appear in one of the fields

specified in Annex B [of your December 3, 2012 request letter] and that identifies or would intrinsically reveal the

identity of the counterparty or its affiliated group.”

3 The Enumerated Jurisdictions listed in the Annex to your June 21, 2013 letter are: France, Korea, Luxembourg,

People’s Republic of China, Switzerland, Taiwan, Belgium, India, Algeria, Singapore, Bahrain, Argentina, Hungary,

Samoa, Austria, and Pakistan.

2

Title VII of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Dodd-Frank

Act”)4 amended the Commodity Exchange Act (the “CEA”) to establish a comprehensive new

regulatory framework for swaps

France, Korea, Luxembourg,

People’s Republic of China, Switzerland, Taiwan, Belgium, India, Algeria, Singapore, Bahrain, Argentina, Hungary,

Samoa, Austria, and Pakistan.

2

Title VII of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Dodd-Frank

Act”)4 amended the Commodity Exchange Act (the “CEA”) to establish a comprehensive new

regulatory framework for swaps. Amendments to the CEA included the addition of provisions

requiring the retention and reporting of data regarding swap transactions.5 Pursuant to these

newly added provisions, the Commission added to its regulations Part 45, which sets forth swap

data recordkeeping rules, as well as rules for the reporting of swap transaction data to a

registered swap data repository (“SDR”),6 and Part 46, which sets forth swap data recordkeeping

and reporting rules for pre-enactment swaps and transition swaps (collectively, “historical

swaps”).7 Part 20 of the Commission’s regulations sets forth large trader reporting rules for

physical commodity swaps and requires routine swaps position reports from clearing

organizations, clearing members and swap dealers, and establishes certain non-routine reporting

requirements for large swaps traders.8 Each of Parts 45, 46 and 20 require the Reporting

Counterparty9 or Reporting Entity10 (as applicable) to disclose identifying information.11

I. Defined Terms

For the purposes of the no-action relief provided herein, the Division will use the following

defined terms:

(A)

“Privacy Law Counterparty”12 means a non-Reporting Counterparty or a

Reporting Entity’s counterparty that meets all of the following criteria:

4 Pub. L. 111-203, 124 Stat. 1376 (2010)

dentifying information.11

I. Defined Terms

For the purposes of the no-action relief provided herein, the Division will use the following

defined terms:

(A)

“Privacy Law Counterparty”12 means a non-Reporting Counterparty or a

Reporting Entity’s counterparty that meets all of the following criteria:

4 Pub. L. 111-203, 124 Stat. 1376 (2010).

5 See, e.g., Section 2(a)(13), which establishes requirements for the real-time reporting and public availability of

swap transaction data; Section 21(b), which directs the Commission to prescribe standards for swap data

recordkeeping and reporting; and Sections 4r and 2(h)(5), which, among other things, establish reporting

requirements for historical swaps.

6 77 Fed. Reg. 2136 (January 13, 2012).

7 77 Fed. Reg. 35200 (June 12, 2012).

8 76 Fed. Reg. 43851 (July 22, 2011).

9 For the purposes of this Division letter, Reporting Counterparty has the meanings assigned in § 45.1 and § 46.1 of

the Commission’s regulations respectively, as applicable.

10 For the purposes of this Division letter, Reporting Entity has the meaning assigned in § 20.1 of the Commission’s

regulations.

11 For all swaps subject to the jurisdiction of the Commission, each counterparty must be identified by means of a

single legal entity identifier (“LEI”) in all swap data reporting pursuant to Part 45 and Part 46. See note 6, supra at

2204 and note 7 supra at 35228. See also ORDER DETERMINING THE AVAILABILITY OF A LEGAL

ENTITY IDENTIFIER MEETING THE REQUIREMENTS OF COMMISSION REGULATIONS, AND

DESIGNATING THE PROVIDER OF LEGAL ENTITY IDENTIFIERS TO BE USED IN RECORDKEEPING

AND SWAP DATA REPORTING PURSUANT TO THE COMMISSION'S REGULATIONS (CFTC Order of July

24, 2012). Part 20 of the Commission’s regulations requires, among other things, that a Reporting Entity disclose

the identity of the counterparty in respect of which positional information is being reported in large swap trader

reports and associated filings

GAL ENTITY IDENTIFIERS TO BE USED IN RECORDKEEPING

AND SWAP DATA REPORTING PURSUANT TO THE COMMISSION'S REGULATIONS (CFTC Order of July

24, 2012). Part 20 of the Commission’s regulations requires, among other things, that a Reporting Entity disclose

the identity of the counterparty in respect of which positional information is being reported in large swap trader

reports and associated filings. See note 8, supra at 43863-4.

12 For the avoidance of doubt, nothing in this Division letter should be interpreted as providing relief from

requirements to report the Opposite LEI, Other Enumerated Identifiers, Other Identifying terms and Part 20

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(1) The counterparty is not a Commission registered swap dealer (“SD”) or major

swap participant (“MSP”);

(2) The counterparty is a non-U.S. person;13

(3) The counterparty is not guaranteed by,14 or an affiliate conduit of,15 a U.S.

person;16 and

(4) The counterparty is located in an Enumerated Jurisdiction.17

Identifying information with respect to a swap counterparty that is: (1) a registered SD or MSP; (2) a U.S. person;

(3) guaranteed by, or an affiliate conduit of a U.S. person; or (4) not located in an Enumerated Jurisdiction.

13 For purposes of this Division letter the term “U.S. person” has the meaning set forth in the Final Exemptive Order

Regarding Compliance With Certain Swap Regulations (“January Order”) (See 78 Fed. Reg. 858 (January 7, 2013))

until the effective date of the Commission’s Final Interpretive Guidance and Policy Statement regarding the cross-

border application of the swaps provisions of the Commodity Exchange Act (“Final Guidance”), upon which

effective date the term “U.S. person” shall have the meaning set forth in the Final Guidance. For purposes of this

Division letter, any person that is not a U.S. person is a “non-U.S

the effective date of the Commission’s Final Interpretive Guidance and Policy Statement regarding the cross-

border application of the swaps provisions of the Commodity Exchange Act (“Final Guidance”), upon which

effective date the term “U.S. person” shall have the meaning set forth in the Final Guidance. For purposes of this

Division letter, any person that is not a U.S. person is a “non-U.S. person.” Nothing in this Division letter should be

interpreted as altering or superseding any Orders or Guidance issued by the Commission.

14 The term “guaranteed by” is used for the purposes of this Division letter. The Commission explained that when a

swap counterparty typically uses a guarantee as credit support for its swap obligations, the guarantor’s resources are

added to the analysis of the swap because “the market will not trade with that counterparty at the same price, on the

same terms, or at all without the guarantee.” The Commission stated that it viewed a guarantee as, generally, “a

collateral promise by a guarantor to answer for the debt or obligation of a counterparty obligor under a swap.” See

77 Fed. Reg. 48225-48226 (Aug. 13, 2012).

15 For the purposes of this Division Letter, an affiliate conduit encompasses those entities that function as a conduit

or vehicle for U.S. persons conducting swaps transactions with third-party counterparties. Certain factors are

relevant to considering whether a non-U.S. person is an “affiliate conduit” including: (i) the non-U.S. person is a

majority-owned affiliate of a U.S. person; (ii) the non-U.S. person is controlling, controlled by or under common

control with the U.S. person; (iii) the financial results of the non-U.S. person are included in the consolidated

financial statements of the U.S. person; and (iv) the non-U.S. person, in the regular course of business, engages in

swaps with non-U.S. third-party(ies) for the purpose of hedging or mitigating risks faced by, or to take positions on

behalf of, its U.S

ontrolled by or under common

control with the U.S. person; (iii) the financial results of the non-U.S. person are included in the consolidated

financial statements of the U.S. person; and (iv) the non-U.S. person, in the regular course of business, engages in

swaps with non-U.S. third-party(ies) for the purpose of hedging or mitigating risks faced by, or to take positions on

behalf of, its U.S. affiliate(s), and enters into offsetting swaps or other arrangements with its U.S. affiliate(s) in order

to transfer the risks and benefits of such swaps with third-party(ies) to its U.S. affiliates. Other facts and

circumstances also may be relevant.

The term “majority-owned affiliates” is defined in Rule 1.3(ggg)(6)(i) as follows:

counterparties to a swap are majority-owned affiliates if one counterparty directly or indirectly owns a

majority interest in the other, or if a third party directly or indirectly owns a majority interest in both

counterparties to the swap, where ‘majority interest’ is the right to vote or direct the vote of a majority of a

class of voting securities of an entity, the power to sell or direct the sale of a majority of a class of voting

securities of an entity, or the right to receive upon dissolution or the contribution of a majority of the capital

of a partnership.

Rule 1.3(ggg)(4)(i) refers to an “entity controlling, controlled by or under common control with the person.”

Footnotes 437 and 438 of the Final Entities Rule elaborated on this provision, saying:

[437] For these purposes, we interpret control to mean the possession, direct or indirect, of the power to

direct or cause the direction of the management and policies of a person, whether through the ownership of

voting securities, by contract or otherwise. This is consistent with the definition of ‘control’ and “affiliate”

in connection with Exchange Act rules regarding registration statements. See Exchange Act rule 12b-2.

16 See note 13, supra.

possession, direct or indirect, of the power to

direct or cause the direction of the management and policies of a person, whether through the ownership of

voting securities, by contract or otherwise. This is consistent with the definition of ‘control’ and “affiliate”

in connection with Exchange Act rules regarding registration statements. See Exchange Act rule 12b-2.

16 See note 13, supra.

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(B)

“Opposite LEI” means the LEI18 of a Privacy Law Counterparty to a swap.

(C)

“Privacy Law Identifier” is a unique identifier, which is not an LEI, and is used

to identify a Privacy Law Counterparty pursuant to this Division letter. Each

Reporting Counterparty shall use a consistent and static Privacy Law Identifier for

a Privacy Law Counterparty in each instance that it would use the Opposite LEI

and Other Enumerated Identifiers.

(D)

“Other Enumerated Identifiers” are:

(1) the identity of the counterparty electing the clearing requirement exception in

CEA Section 2(h)(7) for all asset classes;

(2) an indication of the counterparty purchasing protection or an indication of the

counterparty selling protection (but not both) in the credit and equity asset

classes;

(3) the buyer or seller (but not both) in the commodity asset class; and

(4) for all asset classes, the internal identifier used by an SDR for a non-Reporting

Counterparty, exclusively in those cases where such internal identifier directly

identifies the non-Reporting Counterparty (e.g., the internal identifier used by

an SDR is the name of the non-Reporting Counterparty).

(E)

“Other Identifying Term” means a term of a swap that a Reporting Counterparty

reasonably believes would identify a Privacy Law Counterparty if disclosed, and

is required to be reported pursuant to the following Part 45 data fields:19

identifier directly

identifies the non-Reporting Counterparty (e.g., the internal identifier used by

an SDR is the name of the non-Reporting Counterparty).

(E)

“Other Identifying Term” means a term of a swap that a Reporting Counterparty

reasonably believes would identify a Privacy Law Counterparty if disclosed, and

is required to be reported pursuant to the following Part 45 data fields:19

(1) For swaps in the Foreign Exchange asset class (other than cross-currency

swaps), the “Any other term(s) of the trade matched or affirmed by the

counterparties in verifying the trade” data field required by Appendix 1 to Part

45, Exhibit B; and

(2) For swaps in the Interest Rate (including cross-currency swaps) and Other

Commodity asset classes, the “Any other term(s) of the swap matched or

affirmed by the counterparties in verifying the swap” data field required by

Appendix 1 to Part 45, Exhibits C and D.

17 See note 3, supra.

18 LEI is defined in § 45.6 of the Commission’s regulations. The current LEI designated by the Commission is

known as a CFTC Interim Compliant Identifier (“CICI”), but is hereinafter referred to as an (“LEI”) for ease of

reference. See note 11, supra.

19 The relief provided in this Division letter also permits Reporting Counterparties to temporarily withhold reporting

of images reported pursuant to § 45.3 in cases where they would include LEIs, Other Enumerated Identifiers, and

Other Identifying Terms (as defined in section I of this Division letter) that would otherwise require manual

redaction. The relief provided in this Division letter in no way limits the obligation of a Reporting Counterparty to

otherwise comply with § 45.3, including the provision of “confirmation data normalized in data fields” as required

by Commission regulations.

merated Identifiers, and

Other Identifying Terms (as defined in section I of this Division letter) that would otherwise require manual

redaction. The relief provided in this Division letter in no way limits the obligation of a Reporting Counterparty to

otherwise comply with § 45.3, including the provision of “confirmation data normalized in data fields” as required

by Commission regulations.

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(F) “Part 20 Identifying Information” means the following Privacy Law Counterparty

information:

(1) The counterparty name field in § 20.4 submissions; and

(2) The following counterparty information included in a 102S filing pursuant to

§ 20.5:

(i) Name

(ii) Address (except that the country of the counterparty shall be

provided)

(iii) Contact Name

(iv) Contact Job Title

(v) Contact Phone

(vi) Contact Email

II. Masking of Opposite LEIs, Other Enumerated Identifiers and Other Identifying

Terms Required by Part 45 and Part 46 of the Commission’s Regulations.20

Based upon your representations,21 the Division believes that time-limited relief for Reporting

Counterparties from the requirement to report the Opposite LEI, Other Enumerated Identifiers,

and Other Identifying Terms pursuant to Parts 45 and 46 is warranted under specific

conditions.22 The relief offered in this Division letter does not otherwise impact Reporting

Counterparties’ continuing obligation to report pursuant to Parts 45 and 46 of the Commission’s

regulations.

Accordingly, the Division will not recommend that the Commission commence an enforcement

action against a Reporting Counterparty for failure to report the Opposite LEI, Other Enumerated

Identifiers, and Other Identifying Terms for any swap with a Privacy Law Counterparty for

which the Reporting Counterparty has:

ation to report pursuant to Parts 45 and 46 of the Commission’s

regulations.

Accordingly, the Division will not recommend that the Commission commence an enforcement

action against a Reporting Counterparty for failure to report the Opposite LEI, Other Enumerated

Identifiers, and Other Identifying Terms for any swap with a Privacy Law Counterparty for

which the Reporting Counterparty has:

(i)

Formed a reasonable belief that statutory or regulatory prohibitions in the non-

U.S. jurisdiction preclude the Reporting Counterparty from reporting the Opposite

LEI, Other Enumerated Identifiers and Other Identifying Terms with respect to a

specific non-Reporting Counterparty to a registered SDR as required by Parts 45

and 46;

20 Nothing in this Division letter should be interpreted as altering the requirements of a Reporting Counterparty or

Reporting Entity to include its own LEI, Other Enumerated Identifiers, and Part 20 Identifying information in all

reporting pursuant to Parts 20, 45 and 46.

21 Specifically, the relief provided in this Division letter is premised on the representations made in your June 21,

2013 letter.

22 Section 23.204 of the Commission’s regulations requires swap dealers and major swap participants to comply

with Part 45 of the Commission’s regulations. To that extent only, section 23.204 is incorporated by reference into

the no-action relief herein.

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(ii)

Submitted a formal written request23 (the “Request”) to the relevant non-U.S.

regulator or governing authority24 that:

(1) describes the Reporting Counterparty’s Part 45 and Part 46 reporting

obligations with respect to the swap(s) and non-Reporting Counterparty(ies)

at issue in the Request, including the location where the swap(s) will be

booked;

no-action relief herein.

6

(ii)

Submitted a formal written request23 (the “Request”) to the relevant non-U.S.

regulator or governing authority24 that:

(1) describes the Reporting Counterparty’s Part 45 and Part 46 reporting

obligations with respect to the swap(s) and non-Reporting Counterparty(ies)

at issue in the Request, including the location where the swap(s) will be

booked;

(2) requests that the non-U.S. regulator or governing authority specifically

identify any statutes or regulations that would prohibit the Reporting

Counterparty from reporting the Opposite LEI, Other Enumerated Identifier,

or Other Identifying Terms for the non-Reporting Counterparty pursuant to

Parts 45 and 46;

(3) requests that the non-U.S. regulator or governing authority specifically

address the applicability of such statutes or regulations under the

circumstances listed below or any other circumstances relevant to the

Reporting Counterparty:

(a) swap transactions where the Reporting Counterparty is located and

registered in the jurisdiction;

(b) swap transactions where the Reporting Counterparty is located in

the jurisdiction as a branch, including as a branch of a U.S.

person;25

(c) swap transactions where the Reporting Counterparty is located in

the United States but the non-Reporting Counterparty is located in

the jurisdiction.

(iii)

Obtained a formal response to the Request26 from the relevant non-U.S. regulator

or governing authority within 60 days from the issuance of this Division letter. 27

Responses must specifically address items (2) and (3) above. A Reporting

Counterparty may mask Opposite LEIs, Other Enumerated Identifiers, or

23 The Division notes that a Reporting Counterparty may submit a request individually or rely on a request made by

a group of market participants or an industry association on behalf of similarly situated entities

must specifically address items (2) and (3) above. A Reporting

Counterparty may mask Opposite LEIs, Other Enumerated Identifiers, or

23 The Division notes that a Reporting Counterparty may submit a request individually or rely on a request made by

a group of market participants or an industry association on behalf of similarly situated entities.

24 The Division notes that the relevant regulator or governing authority is one that enforces the regulations or

statutes that the Reporting Counterparty or Reporting Entity reasonably believes precludes it from reporting the

Opposite LEI, Other Enumerated Identifiers, Other Identifying Terms, or Part 20 Identifying Information with

respect to its counterparty. In circumstances where more than one statute or regulation may govern, the Reporting

Counterparty or Entity must submit requests to each relevant non-U.S. regulator or governing authority.

25 See note 13, supra.

26 The Division notes that a Reporting Counterparty or Entity may rely on a formal response letter from a relevant

non-U.S. regulator or governing authority that results from a Request made by group of market participants or by an

industry association on behalf of similarly situated entities, so long as the content of the formal response letter

addresses the facts and circumstances that pertain to the Reporting Counterparty or Entity as it intends to rely on the

relief in this Division letter. In circumstances where more than one statute or regulation governs, the Reporting

Counterparty or Entity must receive responses from each relevant non-U.S. regulator or governing authority.

27 The non-U.S. regulator’s or governing authority’s formal response must be in English or English translation.

Reporting Counterparty or Entity as it intends to rely on the

relief in this Division letter. In circumstances where more than one statute or regulation governs, the Reporting

Counterparty or Entity must receive responses from each relevant non-U.S. regulator or governing authority.

27 The non-U.S. regulator’s or governing authority’s formal response must be in English or English translation.

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Other Identifying Terms only to the extent that the non-U.S. regulator or

governing authority has specifically indicated that reporting such

information pursuant to Parts 45 and 46 of the Commission’s regulations

would violate the law of the non-U.S. jurisdiction.28

The Division will extend this relief until the earlier of: (1) such time that the Reporting

Counterparty no longer holds a reasonable belief that a regulatory or statutory prohibition

precludes it from reporting the Opposite LEI, Other Enumerated Identifiers and Other

Identifying Terms with respect to its non-Reporting Counterparty to a registered SDR as required

by Parts 45 and 46; and (2) 11:59 p.m. eastern daylight time June 30, 2014. Such no-action

relief is subject to the following conditions:

i.

Within 60 days of the issuance of this Division letter, the Reporting Counterparty

must submit, to PrivacyLawReporting@cftc.gov, copies of formal Request letters

submitted by the Reporting Counterparty or on its behalf, as well as responses

received from the relevant non-U.S. regulator or governing authority and retain

such, as part of its compliance with Commission recordkeeping requirements.29

ii.

The Reporting Counterparty shall include the Privacy Law Identifier with all

swap data reported pursuant to Parts 45 or 46 in each instance in which it would

otherwise have been required to report an Opposite LEI or Other Enumerated

Identifier; and

iii

evant non-U.S. regulator or governing authority and retain

such, as part of its compliance with Commission recordkeeping requirements.29

ii.

The Reporting Counterparty shall include the Privacy Law Identifier with all

swap data reported pursuant to Parts 45 or 46 in each instance in which it would

otherwise have been required to report an Opposite LEI or Other Enumerated

Identifier; and

iii.

Upon the expiration of the relief pursuant to clause (1) or (2) above, the Reporting

Counterparty shall correct all Privacy Law Identifiers and Other Identifying

Terms, omitted or submitted in a masked form, to an SDR pursuant to this

Division letter, with the corresponding Opposite LEIs, Other Enumerated

Identifiers and Other Identifying Terms by no later than 30 days from the date of

such expiration. Prior to making such corrections, a Reporting Counterparty shall

notify the relevant SDR.

III. Masking of Certain Identifying Information Required by Part 20 of the

Commission’s Regulations.30

Based upon your representations,31 the Division believes that time-limited relief for Reporting

Entities from the requirement to report Part 20 Identifying Information pursuant to § 20.4 and

28 For example, if the law of the non-U.S. jurisdiction prohibits reporting only with respect to natural persons, then a

Reporting Party may mask information only with respect to non-Reporting Counterparties that are natural persons.

Similarly, if the law of the non-U.S. jurisdiction states that reporting is permissible with the consent of the non-

Reporting Counterparty, then Reporting Parties would be expected to obtain such consent and report Opposite LEIs,

Other Enumerated Identifiers, and Other Identifying Terms pursuant to Parts 45 and 46 of the Commission’s

regulations

orting Counterparties that are natural persons.

Similarly, if the law of the non-U.S. jurisdiction states that reporting is permissible with the consent of the non-

Reporting Counterparty, then Reporting Parties would be expected to obtain such consent and report Opposite LEIs,

Other Enumerated Identifiers, and Other Identifying Terms pursuant to Parts 45 and 46 of the Commission’s

regulations.

29 A Reporting Counterparty or Entity may not continue to rely on the relief provided in this Division letter if a

formal response letter outlined in (iii) above is not issued to the Reporting Counterparty or Entity or to a group of

market participants or an industry association on its behalf and sent to the Commission in accordance with condition

i.

30 See note 20, supra.

8

§ 20.5 of the Commission’s regulations is warranted under specific conditions.32 The relief

offered in this Division letter does not otherwise impact Reporting Entities’ continuing

obligation to report pursuant to Part 20 of the Commission’s regulations.

Accordingly, the Division will not recommend that the Commission commence an enforcement

action against a Reporting Entity for failure to report Part 20 Identifying Information for any

§ 20.4 or § 20.5 submission with respect to a swap with a Privacy Law Counterparty for which

the Reporting Entity has:

(i) Formed a reasonable belief that statutory or regulatory prohibitions in the non-U.S.

jurisdiction preclude the Reporting Entity from reporting Part 20 Identifying

Information;

(ii) Submitted a formal written Request33 to the relevant non-U.S. regulator or governing

authority34 that:

(1) describes the Reporting Entity’s Part 20 reporting obligations with respect to

the swap(s) and its counterparty at issue in the Request;

statutory or regulatory prohibitions in the non-U.S.

jurisdiction preclude the Reporting Entity from reporting Part 20 Identifying

Information;

(ii) Submitted a formal written Request33 to the relevant non-U.S. regulator or governing

authority34 that:

(1) describes the Reporting Entity’s Part 20 reporting obligations with respect to

the swap(s) and its counterparty at issue in the Request;

(2) requests that the non-U.S. regulator or governing authority specifically

identify any statutes or regulations that would prohibit the Reporting Entity

from reporting Part 20 Identifying Information for its counterparty pursuant to

Part 20;

(3) requests that the non-U.S. regulator or governing authority specifically

address the applicability of such statutes or regulations under the

circumstances listed below or any other circumstances relevant to the

Reporting Entity:

(a) swap transactions where the Reporting Entity is located and

registered in the jurisdiction;

(b) swap transactions where the Reporting Entity is located in the

jurisdiction as a branch, including as a branch of a U.S. person;35

(c) swap transactions where the Reporting Entity is located in the

United States but its counterparty is located in the jurisdiction.

(iii)Obtained a formal response to the Request36 from the relevant non-U.S. regulator or

governing authority, within 60 days from the issuance of this Division letter. 37

31 See note 21, supra.

32 Nothing in this Division letter should be interpreted as altering the responsibility of a Reporting Entity to make

reports required by § 20.4 and to make 102S filings pursuant to § 20.5, even if information in such filing is masked

pursuant to this Division letter.

33 See note 23, supra.

34 See note 24, supra.

35 See note 13, supra.

36 See note 26, supra.

31 See note 21, supra.

32 Nothing in this Division letter should be interpreted as altering the responsibility of a Reporting Entity to make

reports required by § 20.4 and to make 102S filings pursuant to § 20.5, even if information in such filing is masked

pursuant to this Division letter.

33 See note 23, supra.

34 See note 24, supra.

35 See note 13, supra.

36 See note 26, supra.

9

Responses must specifically address items (2) and (3) above. A Reporting Entity

may mask Part 20 Identifying Information only to the extent that the non-U.S.

regulator or governing authority has specifically indicated that reporting such

information pursuant to Part 20 of the Commission’s regulations would violate

the law of the non-U.S. jurisdiction.38

The Division will extend this relief until the earlier of: (1) such time that the Reporting Entity no

longer holds a reasonable belief that a regulatory or statutory prohibition precludes it from

reporting Part 20 Identifying Information; and (2) 11:59 p.m. eastern daylight time June 30,

2014. Such no-action relief is subject to the following conditions:

i.

Within 60 days of the issuance of this Division letter, the Reporting Entity must

submit, to PrivacyLawReporting@cftc.gov, copies of formal request letters

submitted by the Reporting Entity or on its behalf, as well as responses received

from the relevant non-U.S. regulator or governing authority and retain such, as

part of its compliance with Commission recordkeeping requirements.39

ii.

The Reporting Entity shall make a Form 102S filing for the Privacy Law

Counterparty in accordance with § 20.5, which filing shall include the country of

such counterparty and an indication of the Part 20 Identifying Information of the

counterparty redacted pursuant to this Division letter;

iii.

The Reporting Entity shall report that information has been withheld due to

privacy law for each Part 20 Identifying Information field not reported pursuant to

this Division letter; and

iv

rdance with § 20.5, which filing shall include the country of

such counterparty and an indication of the Part 20 Identifying Information of the

counterparty redacted pursuant to this Division letter;

iii.

The Reporting Entity shall report that information has been withheld due to

privacy law for each Part 20 Identifying Information field not reported pursuant to

this Division letter; and

iv.

Upon the expiration of the relief pursuant to either clause (1) or (2) above, a

Reporting Entity shall make a corrective Part 20 data submission for all Part 20

Identifying Information that was previously withheld or submitted in a masked

form pursuant to this Division letter, by no later than 30 days from the date of

such expiration. The Reporting Entity shall contact the Commission’s Office of

Data and Technology (“ODT”) prior to making such corrective Part 20 data

submission, and such submission shall be in a form and manner acceptable to

ODT.

The no-action relief provided in this Division letter applies to Reporting Counterparties and

Reporting Entities, regardless of whether they are members of ISDA. It applies to Opposite LEIs

and Other Enumerated Identifiers pursuant to Parts 45 and 46, Other Identifying Terms pursuant

to Part 45 and Part 20 Identifying Information, with respect to Privacy Law Counterparties

37 See note 27, supra.

38 For example, if the law of the non-U.S. jurisdiction prohibits reporting only with respect to natural persons, then

a Reporting Entity may mask information only with respect to counterparties that are natural persons. Similarly, if

the law of the non-U.S. jurisdiction states that reporting is permissible with the consent of the counterparty, then

Reporting Entities would be expected to obtain such consent and report Part 20 Identifying Information pursuant to

Part 20 of the Commission’s regulations

s, then

a Reporting Entity may mask information only with respect to counterparties that are natural persons. Similarly, if

the law of the non-U.S. jurisdiction states that reporting is permissible with the consent of the counterparty, then

Reporting Entities would be expected to obtain such consent and report Part 20 Identifying Information pursuant to

Part 20 of the Commission’s regulations.

39 See note 29, supra.

10

only.40 Further, the no-action relief provided in this Division letter in no way limits the

Commission’s authority to request and obtain a Privacy Law Counterparty’s Identity

Information.

The no-action relief provided herein contains a collection of information, as that term is defined

in the Paperwork Reduction Act.41 Therefore, a control number for the collection must be

obtained from the Office of Management and Budget (“OMB”). In accordance with 44 U.S.C.

§ 3507(d) and 5 C.F.R. §§ 1320.8 and 1320.10, the Division has filed with OMB and obtained an

approved

collection—3038-0049—entitled

“Procedural

requirements

for

requests

for

interpretative, no-action and exemptive letters.” Accordingly, a Reporting Counterparty or

Reporting Entity may not rely on the Division's determination not to recommend an enforcement

action to the Commission unless it provides the information the Division has determined is

essential to the provision of no-action relief.

The Division’s letter, and the no-action position taken herein, which is based on your

representations, reflects the views of the Division only, and not necessarily the position or views

of the Commission or of any other division or office of the Commission’s staff. The no-action

position taken herein does not excuse affected persons from compliance with any other

applicable requirements of the CEA or the regulations thereunder

tion position taken herein, which is based on your

representations, reflects the views of the Division only, and not necessarily the position or views

of the Commission or of any other division or office of the Commission’s staff. The no-action

position taken herein does not excuse affected persons from compliance with any other

applicable requirements of the CEA or the regulations thereunder. As with all no-action letters,

the Division retains the authority to, in its discretion, further condition, modify, suspend,

terminate or otherwise restrict the terms of the no-action relief provided herein.

If you have any questions concerning this correspondence, please contact Sebastian Pujol Schott,

Associate Director, Division of Market Oversight, at (202) 418-5641, or Stuart Armstrong,

Attorney Advisor, Division of Market Oversight, at (202) 418-5095.

Sincerely,

_______________________

Richard A. Shilts

Acting Director

Division of Market Oversight

40 Should the Commission promulgate additional swap data reporting rules applicable to the subject matter covered

herein during the pendency of this no-action relief, such rules could supersede the relief granted herein.

41 44 U.S.C. §§ 3501 et. seq.