Reporting, Recordkeeping, and Daily Trading Records Requirements for Swap Dealers and Major Swap Participants

AGENCY:

Commodity Futures Trading Commission.

ACTION:

Notice of proposed rulemaking.

SUMMARY:

The Commodity Futures Trading Commission (Commission or CFTC) is proposing regulations to implement new statutory provisions established under Title VII of the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act). Section 731 of the Dodd-Frank Act added new sections 4s(f) and (g) to the Commodity Exchange Act (CEA), which set forth reporting and recordkeeping requirements and daily trading records requirements for swap dealers and major swap participants. The proposed rules would establish the regulatory standards for compliance with these new sections of the CEA.

DATES:

Submit comments on or before February 7, 2011.

ADDRESSES:

You may submit comments, identified by RIN number 3038-AC96 and Reporting, Recordkeeping, and Daily Trading Records Requirements for Swap Dealers and Major Swap Participants, by any of the following methods:

• Agency Web site, via its Comments Online process: http://comments.cftc.gov . Follow the instructions for submitting comments through the Web site.
• Mail: David A. Stawick, Secretary of the Commission, Commodity Futures Trading Commission, Three Lafayette Centre, 1155 21st Street, NW., Washington, DC 20581.
• Hand Delivery/Courier: Same as mail above.
• Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.

Please submit your comments using only one method.

All comments must be submitted in English, or if not, accompanied by an English translation. Comments will be posted as received to http://www.cftc.gov. You should submit only information that you wish to make available publicly. If you wish the Commission to consider information that may be exempt from disclosure under the Freedom of Information Act, a petition for confidential treatment of the exempt information may be submitted according to the established procedures in § 145.9 of the Commissions regulations, 17 CFR 145.9.

The Commission reserves the right, but shall have no obligation, to review, pre-screen, filter, redact, refuse or remove any or all of your submission from http://www.cftc.gov that it may deem to be inappropriate for publication, such as obscene language. All submissions that have been redacted or removed that contain comments on the merits of the rulemaking will be retained in the public comment file and will be considered as required under the Administrative Procedure Act and other applicable laws, and may be accessible under the Freedom of Information Act.

FOR FURTHER INFORMATION CONTACT:

Sarah E. Josephson, Associate Director, 202-418-5684, sjosephson@cftc.gov; Frank N. Fisanich, Special Counsel, 202-418-5949, ffisanich@cftc.gov; or Christopher Hower, Attorney Advisor, 202-418-6703, chower@cftc.gov; Division of Clearing and Intermediary Oversight, Commodity Futures Trading Commission, Three Lafayette Centre, 1155 21st Street, NW., Washington, DC 20581.

SUPPLEMENTARY INFORMATION:

I. Background

On July 21, 2010, President Obama signed the Dodd-Frank Act. Title VII of the Dodd-Frank Act amended the Commodity Exchange Act (CEA) to establish a comprehensive regulatory framework to reduce risk, increase transparency, and promote market integrity within the financial system by, among other things: (1) Providing for the registration and comprehensive regulation of swap dealers and major swap participants; (2) imposing clearing and trade execution requirements on standardized derivative products; (3) creating rigorous recordkeeping and real-time reporting regimes; and (4) enhancing the Commission's rulemaking and enforcement authorities with respect to all registered entities and intermediaries subject to the Commission's oversight.

Section 731 of the Dodd-Frank Act amends the CEA by adding a new Section 4s, which sets forth a number of requirements for swap dealers and major swap participants. Specifically, sections 4s(f) and 4s(g) of the CEA establish reporting and recordkeeping requirements and daily trading records requirements for swap dealers and major swap participants.

Section 4s(f)(1) requires swap dealers and major swap participants to “make such reports as are required by the Commission by rule or regulation regarding the transactions and positions and financial condition of the registered swap dealer or major swap participant.” Under sections 4s(f)(1)(B)(i) and (ii), the Commission is authorized to prescribe the books and records requirements of “all activities related to the business of swap dealers or major swap participants,” regardless of whether or not the entity has a prudential regulator. All books and records shall be open to inspection and examination by any representative of the Commission, and under section 4s(f)(1)(D), books and records relating to security-based swap agreements also must be open to inspection and examination by the Securities and Exchange Commission.

Section 4s(g)(1) requires that swap dealers and major swap participants “maintain daily trading records of the swaps of the registered swap dealer and major swap participant and all related records (including related cash and forward transactions) and recorded communications, including electronic mail, instant messages, and recordings of telephone calls.” Section 4s(g)(3) requires that daily trading records for each swap transaction be identifiable by counterparty, and section 4s(g)(4) specifies that swap dealers and major swap participants maintain a “complete audit trail for conducting comprehensive and accurate trade reconstructions.”

The Commission would adopt the regulations discussed below pursuant to authority granted under sections 4s(h)(1)(D), 4s(h)(3)(D), 4s(f), 4s(g), and 8a(5) of the CEA. The Dodd-Frank Act requires the Commission to promulgate these provisions by July 15, 2011.

The proposed regulations reflect consultation with staff of the following agencies: (i) The Securities and Exchange Commission; (ii) the Board of Governors of the Federal Reserve System; (iii) the Office of the Comptroller of the Currency; and (iv) the Federal Deposit Insurance Corporation. Staff from each of these agencies has had the opportunity to provide oral and/or written comments to the proposal, and the proposed regulations incorporate elements of the comments provided.

The Commission requests comment on all aspects of the proposed regulations, as well as comment on the specific provisions and issues highlighted in the discussion below. The Commission further requests comment on an appropriate effective date for final regulations, including comment on whether it would be appropriate to have staggered or delayed effective dates for some regulations based on the nature or characteristics of the activities or entities to which they apply. Moreover, the Commission recognizes that there will be differences in the size and scope of the business of particular swap dealers and major swap participants. Therefore, comments are solicited on whether certain provisions of the proposed regulations should be modified or adjusted to reflect the differences among swap dealers and major swap participants.

II. Proposed Regulations

A. General Records Requirements

Section 4s(f)(1)(B) of the CEA requires registered swap dealers and major swap participants to keep records of all activities related to their business. Section 4s(f)(2) directs the Commission to adopt rules governing recordkeeping for swap dealers and major swap participants.

Proposed § 23.201 sets forth the records swap dealers and major swap participants must maintain. The records required under the proposed rule would include full and complete swap transaction information, including all documents on which swap information is originally recorded. Under proposed § 23.201(a)(1), such records would be required to be maintained in a manner that is identifiable and searchable by transaction and by counterparty. The rule would require retention of all documents customarily generated in accordance with market practice that demonstrate the existence and nature of the transaction.

Proposed § 23.201(a)(2) would require retention of records of each position held by the swap dealer or major swap participant, identified by product and counterparty. Position records would be required to be linked to transaction records in a manner that permitted identification of the transaction that established the position. Position information would be retained in accordance with Commission regulations under part 45, which provides for unique product identifiers and unique counterparty identifiers.

Proposed § 23.201(a)(3) would require swap dealers and major swap participants to maintain records for transactions executed on a swap execution facility (SEF) or designated contract market (DCM) or cleared by a derivatives clearing organization (DCO). It should be noted, that for transactions that are executed on a SEF or DCM, or cleared on a DCO, many of the requirements of the daily trading record rule, described below, would be easily achieved through procedures established by the SEF, DCM, or DCO (e.g., confirming the transaction, valuing the transaction, or margining the position).

Proposed § 23.201(b) would require that swap dealers and major swap participants keep basic business records, including, among other things, minutes from meetings of the entity's governing body, organizational charts, and documentation of audits conducted. Additionally, certain financial records, records of complaints against personnel, and marketing materials would be required to be kept. Under proposed § 23.201(c), swap dealers and major swap participants would be required to maintain records of information required to be submitted to a swap data repository.

Finally, under proposed § 23.201(d) swap dealers and major swap participants would be required to maintain records of information required to be reported on a real-time public basis and records of information relating to large notional swaps in accordance with proposed part 43 and CEA section 2(a)(13). Specifically, with regard to large notional swaps, swap dealers and major swap participants should retain a record of the rationale for determining that the swap is a large notional swap in accordance with new part 43 of the Commission regulations. Additionally, for the purposes of real-time reporting under part 43, if less specific information relating to a required data field is reported to protect the identities of the parties to a swap (e.g., underlying asset or tenor), a swap dealer or major swap participant must retain a record of the rationale for why reporting less specific information is necessary to protect the anonymity of the parties to the swap.

The Commission requests comment on all aspects of proposed § 23.201. In particular, the Commission solicits comment on the following questions:

• Should the Commission provide greater specificity on the requirement that transaction records be kept in a form and manner identifiable and searchable by transaction and counterparty?
• Are there additional types of records that should be required to be kept by swap dealers and major swap participants? For example, should drafts of documents be kept?

B. Daily Trading Records

Section 4s(g)(1) of the CEA requires that swap dealers and major swap participants maintain daily trading records of their swaps and “all related records (including related cash and forward transactions).” This section also requires that swap dealers and major swap participants maintain recorded communications, including electronic mail, instant messages, and recordings of telephone calls. Section 4s(g)(2) provides that the daily trading records shall include such information as the Commission shall require by rule or regulation. Section 4s(g)(3) requires that daily trading records for each swap transaction be identifiable by counterparty, and section 4s(g)(4) specifies that swap dealers and major swap participants maintain a “complete audit trail for conducting comprehensive and accurate trade reconstructions.”

Proposed § 23.202 would prescribe daily trading record requirements, which would include trade information related to pre-execution, execution, and post-execution data. Proposed § 23.202(a) would require swap dealers and major swap participants to ensure (1) that they preserve all information necessary to conduct a comprehensive and accurate trade reconstruction for each swap, and (2) that they maintain each transaction record as a separate electronic file identifiable and searchable by transaction and counterparty.

Proposed § 23.202(a)(1) would require registrants to keep pre-execution trade information. This would include records of all oral and written communications that lead to the execution of a swap, whether communicated by telephone, voicemail, facsimile, instant messaging, chat rooms, electronic mail, mobile device, or other digital or electronic media. This rule would require swap dealers and major swap participants to maintain recordings of telephone calls and other communications created in the normal course of its business, but would not establish an affirmative new requirement to create recordings of all telephone conversations if the complete audit trail requirement can be met through other means, such as electronic messaging or trading.

Significant technological advancements in recent years, particularly with respect to the cost of capturing and retaining copies of electronic material, including telephone communications, have made the prospect of establishing recordkeeping requirements for digital and electronic communications more economically feasible and systemically prudent. Evidence of these trends was examined in March 2008 by the United Kingdom's Financial Services Authority (“FSA”), which studied the issue of mandating the recording and retention of voice conversations and electronic communications. The FSA issued a Policy Statement detailing its findings and ultimately implemented rules relating to the recording and retention of such communications, including a recent determination that all financial service firms will be required to record any relevant communication by employees on their work cell phones. Similar rules that mandate recording of certain voice and/or telephone conversations have been promulgated by the Hong Kong Securities and Futures Commission and by the Autorité des Marchés Financiers in France, and have been recommended by the International Organization of Securities Commissions (IOSCO).

While technological advancements have made capturing and retaining such material more economically feasible, modern technologies likewise have altered the methods by which market participants conduct their business, especially the means through which such persons communicate solicitations, bids, offers, orders, instructions, trading, and prices.

On February 5, 2009, the Commission's Division of Market Oversight (DMO) issued an advisory, which made clear that the existing language of § 1.35 of the Commission's regulations “appl[ies] to records that are created or retained in an electronic format, including e-mail, instant messages, and other forms of communication created or transmitted electronically for all trading.” The advisory, which specifically addresses the Commission's recordkeeping requirements as applicable to futures commission merchants, introducing brokers, and DCM members, states that “[t]he Commission's recordkeeping regulations, by their terms, do not distinguish between whatever medium is used to record the information covered by the regulations, including e-mails, instant messages, and any other form of communication created or transmitted electronically.”

It is also noteworthy that the Commission's enforcement success in cases involving market manipulation and false reporting often has correlated directly with the existence of high-quality recordings of voice communications and of electronic communications between the persons involved. Conversely, the Commission's enforcement capabilities have been limited in cases where such voice recordings and copies of electronic communications were not available.

Accordingly, the Commission is proposing § 23.202(a)(1), which would require swap dealers and major swap participants to maintain records of all communications provided or received concerning information that leads to the execution of a swap, whether conveyed by telephone, voicemail, facsimile, instant messaging, chat rooms, electronic mail, mobile device, or other digital or electronic media. As noted above, the proposed § 23.202(a) would require that each recorded communication be maintained as a separate electronic file identifiable and searchable by transaction and counterparty.

The Commission solicits comments on the potential costs and effects of requiring that all pre-execution communications be recorded. Additionally, the Commission requests comment on whether it should require a record of the source of quotations, including the source of any input if the quotation is generated by a formula or model. Comments also are requested regarding whether the retention period for pre-execution communications should be shorter than the retention period applicable to other business records.

Proposed § 23.202(a)(2) would require the recording of execution information, including all terms of each swap and the date and time, to the nearest minute, that the swap was executed. Post-execution data, such as records of all confirmations, reconciliations, and margining of swaps would be required under proposed § 23.202(a)(3). The collateralization of risk exposure resulting from the business of the swap dealer or major swap participant would be recorded under § 23.202(a)(4).

Proposed § 23.202(b) would require that swap dealers and major swap participants retain information of cash or forward transactions that are related to swaps as required by section 4s(g)(1). Proposed § 23.200 defines a related cash or forward transaction as “a purchase or sale for immediate or deferred physical shipment or delivery of an asset related to a swap where the swap and the related cash or forward transaction are used to hedge, mitigate the risk of, or offset one another.” The recordkeeping requirements for related cash and forward transactions generally track the same requirements as swaps. The Commission believes that requiring one approach to recordkeeping will be simpler for swap dealers and major swap participants to implement and will provide the Commission with information necessary for its regulatory oversight.

The Commission requests comment on all aspects of proposed § 23.202. With respect to records regarding related cash and forward transactions, the Commission solicits comment upon whether the Commission has provided sufficient clarity concerning what type of information would be required to be retained. The Commission also requests comment on whether it should require swap dealers and major swap participants to keep records related to high frequency trading, and what the nature of those records should be.

C. Retention and Inspection of Records

Proposed § 23.203 prescribes the form and manner in which records shall be retained, and prescribes the period of time for which maintenance of records is required. Generally speaking, § 23.203 corresponds to the recordkeeping requirements of § 1.31 insofar as records are required to be kept for a period of at least 5 years, and shall be readily accessible for the first two years of that period.

Proposed § 23.203(a) would require that records be kept at the principal place of business of the swap dealer or major swap participant. If the principal place of business is outside of the United States, then the swap dealer or major swap participant must provide the requested records at a place designated by a representative of the Commission within 72 hours of receiving the request.

Proposed § 23.203(b) would require that all records be maintained in accordance with § 1.31 of the Commission's regulations, except that records of, or related to, each swap transaction be retained until the termination, maturity, expiration, transfer, assignment, or novation of the swap, and for five years after such time. In other words, the swap dealer or major swap participant must maintain records for the life of the swap or the period in which the entity holds the position on its books (whichever is shorter), plus five additional years. Additionally, records of any swap data must be maintained in accordance with requirements under part 45, which was recently proposed by the Commission.

In addition to any other comments on retention and inspection requirements, the Commission requests comment on the approach it has proposed for the retention of swap data.

D. Reports to Swap Data Repositories and Real-time Public Reporting

Section 4(s)(f)(1)(A) of the CEA requires each registered swap dealer and major swap participant to make such reports as are required by the Commission by rule or regulation regarding the transactions and positions and financial condition of the registered swap dealer or major swap participant.

Proposed § 23.204 implements the reporting requirements of Commission rules to be prescribed under CEA section 4r(a) related to reporting of swaps to a swap data repository. Proposed § 23.205 implements the reporting requirements of Commission rules to be prescribed under CEA section 2(a)(13) related to real-time public reporting of swap transactions and pricing data. Each of the reports required under the proposed rules would assist the Commission to monitor the swap markets and the operations of swap dealers and major swap participants and to enforce their compliance with the Commission's rules.

III. Related Matters

A. Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA) requires that agencies consider whether the rules they propose will have a significant economic impact on a substantial number of small entities. The Commission previously has established certain definitions of “small entities” to be used in evaluating the impact of its regulations on small entities in accordance with the RFA. The proposed rules would affect swap dealers and major swap participants.

Swap dealers and major swap participants are new categories of registrants. Accordingly, the Commission has not previously addressed the question of whether such persons are, in fact, small entities for purposes of the RFA. The Commission previously has determined, however, that futures commission merchants are not small entities for purposes of the RFA. The Commission's determination was based, in part, upon the obligation of futures commission merchants to meet the minimum financial requirements established by the Commission to enhance the protection of customers' segregated funds and protect the financial condition of futures commission merchants generally. Like futures commission merchants, swap dealers will be subject to minimum capital and margin requirements and are expected to comprise the largest global financial firms. In addition, the Commission is required to exempt from swap dealer designation any entities that engage in a de minimis level of swaps dealing in connection with transactions with or on behalf of customers. The Commission anticipates that this exemption would exclude small entities from registration. For essentially the same reasons that futures commission merchants have previously been determined not to be small entities and in light of the exemption from the definition of swap dealer for those engaging in a de minimus level of swap dealing, the Commission is hereby proposing that swap dealers not be considered “small entities” for purposes of the RFA for this rulemaking.

The Commission also has determined previously that large traders are not “small entities” for RFA purposes. In that determination, the Commission considered that a large trading position was indicative of the size of the business. Major swap participants, by statutory definition, maintain substantial positions in swaps or maintain outstanding swap positions that create substantial counterparty exposure that could have serious adverse effects on the financial stability of the United States banking system or financial markets. Accordingly, for purposes of the RFA for this rulemaking, the Commission is hereby proposing that major swap participants not be considered “small entities” for essentially the same reasons that large traders have previously been determined not to be small entities.

Moreover, the Commission is carrying out Congressional mandates by proposing this regulation. Specifically, the Commission is proposing these regulations to comply with the Dodd-Frank Act, the aim of which is to reduce systemic risks presented by swap dealers and swap market participants through comprehensive regulation. The Commission does not believe that there are regulatory alternatives to those being proposed that would be consistent with the statutory mandate. Accordingly, the Chairman, on behalf of the Commission, hereby certifies pursuant to 5 U.S.C. 605(b) that the proposed rules will not have a significant economic impact on a substantial number of small entities.

B. Paperwork Reduction Act

The Paperwork Reduction Act (PRA) imposes certain requirements on Federal agencies (including the Commission) in connection with their conducting or sponsoring any collection of information as defined by the PRA. This proposed rulemaking would result in new collection of information requirements within the meaning of the PRA. The Commission therefore is submitting this proposal to the Office of Management and Budget (OMB) for review in accordance with 44 U.S.C. 3507(d) and 5 CFR 1320.11. The title for this collection of information is “Reporting, Recordkeeping, and Daily Trading Records Requirements for Swap Dealers and Major Swap Participants.” 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 control number. The OMB has not yet assigned this collection a control number.

The collection of information under these proposed regulations is necessary to implement certain provisions of the CEA, as amended by the Dodd-Frank Act. Specifically, it is essential to ensuring that each swap dealer and major swap participant maintains records of all the activities related to its business including, but not limited to, daily trading records and transaction reporting as required by section 4s(f) of the Act. The recordkeeping requirement also is necessary for a complete audit trail to conduct comprehensive and accurate trade reconstructions. Commission staff would use the information required to be preserved or reported when conducting the Commission's examination and oversight program with respect to the applicable registrants.

If the proposed regulations are adopted, responses to this collection of information would be mandatory. The Commission will protect proprietary information according to the Freedom of Information Act and 17 CFR part 145, “Commission Records and Information.” In addition, section 8(a)(1) of the CEA strictly prohibits the Commission, unless specifically authorized by the CEA, from making public “data and information that would separately disclose the business transactions or market positions of any person and trade secrets or names of customers.” The Commission is also required to protect certain information contained in a government system of records according to the Privacy Act of 1974, 5 U.S.C. 552a.

1. Information Provided by Reporting Entities/Persons

Swap dealers and major swap participants would be required to comply with the recordkeeping requirements of §§ 23.201, 23.202, and 23.203 and the reporting requirements of §§ 23.204 and 23.205. The proposed regulations generally would require swap dealers and major swap participants to keep transaction and position records of their swaps (including daily trading records of swaps and related cash and forward transactions); to maintain specified business records (including records related to the swap dealer's or major swap participant's governance, financial status, and complaints); to report certain swap transaction data to swap data repositories; to satisfy certain real time public reporting requirements; and to maintain records of information reported to swap data repositories and for real time public reporting purposes.

The annual burden associated with these proposed regulations is estimated to be 2,096 hours, at an annual cost of $209,600 for each swap dealer and major swap participant. Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, disclose, or provide information to or for a federal agency. This hourly burden primarily results from the recordkeeping obligations that would be imposed by proposed §§ 23.201 and 23.202.

Specifically, the Commission anticipates that swap dealers and major swap participants will spend approximately eight hours per trading day (2,016 hours per year) compiling and maintaining transaction records, including daily trading records. The Commission believes that swap dealers and major swap participants already maintain the vast majority of the required transaction records (particularly execution and post-execution records) as part of their customary and usual business practices and that any additional expenditure generally would be limited to the costs associated with developing and preserving certain pre-execution data and communications set forth in proposed § 23.202, which currently may not be kept by affected registrants (for example, records of oral and written communications and records related to quotes, bids, and offers) as well as the time required to input any unique transaction terms into electronic recordkeeping systems. The Commission believes that registrants will expend an additional 63 hours per year compiling daily records of their positions, identified by product and counterparty, as required by proposed § 23.201.

The Commission estimates that each swap dealer and major swap participant will spend 5 hours per year compiling the complaint records required by the proposed regulations. This approximation is based on the belief that the affected registrants primarily engage in principal to principal transactions, which are less likely to generate complaints than transactions conducted on an agency basis. It also assumes that most registrants possess pre-existing complaint recordkeeping systems and thus, any hourly burden imposed would be limited to the time required to document and retain the specific complaint information mandated by the rule that is not already kept. Finally, the Commission estimates the hourly burden associated with compliance with the marketing communication recordkeeping requirement to be approximately 12 hours per year. The Commission expects that swap dealers and market participants presently maintain records of most of their marketing presentations, advertisements, sales literature, and marketing communications as part of their customary business practices and, thus, any new hourly burden is limited to the requirement to maintain a record of compliance with relevant marketing regulations.

The Commission believes that several aspects of the rule would not result in any additional hourly burdens upon affected registrants. For example, the required records of transactions executed on a swap execution facility or designated contract market or transactions cleared by a designated clearing organization would be the same transaction and daily trading records accounted for previously and, therefore, have not been assigned an extra hourly burden. The Commission also expects that swap dealers and major swap participants currently make and/or maintain their meeting minutes; organizational charts; the resumes of relevant managers; records of their assets, liabilities, income, and expenses; and other governance or financial records in the ordinary course of their businesses.

Finally, the Commission does not anticipate that the requirements to report swap transactions to swap data repositories in accordance with proposed § 23.204, to engage in real time public reporting of swap transaction and pricing data in accordance with proposed § 23.205, and to maintain the electronic systems and procedures necessary to report transactions and data in the manner required by the regulations would result in any additional hourly burdens or costs to swap dealers and major swap participants other than those set forth in the recently proposed part 45 regulations for swap data recordkeeping and reporting and in the recently proposed part 43 regulations governing real-time public reporting of swap transaction data promulgated as part of the Commission's implementation of the Dodd-Frank Act.

It is not currently known how many swap dealers and major swap participants will become subject to these rules, and this will not be known to the Commission until the registration requirements for these entities become effective after July 16, 2011, the date on which the Dodd-Frank Act becomes effective. The Commission believes that there are likely to be approximately 200 swap dealers and 50 major swap participants that would be required to register with the Commission. It has chosen to take a more conservative approach for PRA purposes, however, and has estimated that there will be a combined number of 300 swap dealers and major swap participants who will be required to comply with the recordkeeping and reporting obligations imposed by the proposed regulations. The Commission estimated the number of affected entities based on industry data.

According to recent Bureau of Labor Statistics, the mean hourly wage of an employee under occupation code 11-3031, “Financial Managers,” (which includes operations managers) that is employed by the “Securities and Commodity Contracts Intermediation and Brokerage” industry is $74.41. Because swap dealers and major swap participants include large financial institutions whose operations management employees' salaries may exceed the mean wage, the Commission has estimated the cost burden of these proposed regulations based upon an average salary of $100 per hour.

Accordingly, the estimated hour burden was calculated as follows:

Recordkeeping: Transaction Records (including Daily Trading Records)

Number of registrants: 300.

Frequency of collection: Daily.

Estimated number of responses per registrant: 252 [252 trading days].

Estimated aggregate number of responses: 75,600 [300 registrants × 252 trading days].

Estimated annual burden per registrant: 2,016 hours [252 trading days × 8 hours per trading day].

Estimated aggregate annual hour burden: 604,800 hours [300 registrants × 252 trading days × 8 hours per trading day].

Recordkeeping: Position Records

Number of registrants: 300.

Frequency of collection: Daily.

Estimated number of responses per registrant: 252 [252 trading days].

Estimated aggregate number of responses: 75,600 [300 registrants × 252 trading days].

Estimated annual burden per registrant: 63 hours [252 trading days × .25 hours per record].

Estimated aggregate annual hour burden: 18,900 hours [300 registrants × 252 trading days × .25 hours per record].

Recordkeeping: Complaints

Number of registrants: 300.

Frequency of collection: As needed.

Estimated number of responses per registrant: 5.

Estimated aggregate number of responses: 1,500 [300 registrants × 5 complaints per registrant].

Estimated annual burden per registrant: 5.

Estimated aggregate annual hour burden: 1,500 [300 registrants × 5 complaints per registrant].

Recordkeeping: Marketing Communications

Number of registrants: 300.

Frequency of collection: As needed.

Estimated number of responses per registrant: 12 (monthly compilation of records).

Estimated aggregate number of responses: 3,600 [300 registrants × 12 monthly compilations].

Estimated annual burden per registrant: 12 hours [1 hour × 12 months].

Estimated aggregated annual hour burden: 3,600 [300 registrants × 12 monthly compilations].

Based upon the above, the aggregate hour burden cost for all registrants is 628,800 burden hours and $62,880,000 [628,800 × $100 per hour].

In addition to the per hour burden discussed above, the Commission anticipates that swap dealers and major swap participants may incur certain start-up costs in connection with the proposed recordkeeping obligations. Such costs would include the expenditures related to developing and installing new technology or re-programming or updating existing recordkeeping technology and systems to enable the swap dealer or major swap participant to collect, capture, process, maintain, and re-produce any newly required records. The Commission believes that swap dealers and major swap participants generally could adapt their current infrastructure to accommodate the new or amended technology and thus no significant infrastructure expenditures would be needed. The Commission estimates the programming burden hours associated with technology improvements to be 160 hours.

According to recent Bureau of Labor Statistics, the mean hourly wages of computer programmers under occupation code 15-1021 and computer software engineers under program codes 15-1031 and 1032 are between $34.10 and $44.94. Because swap dealers and major swap participants generally will be large entities that may engage employees with wages above the mean, the Commission has conservatively chosen to use a mean hourly programming wage of $60 per hour. Accordingly, the start-up burden associated with the required technological improvements would be $9,600 [$60 × 160 hours] per affected registrant or $2,880,000 in the aggregate.

2. Information Collection Comments

The Commission invites the public and other federal agencies to comment on any aspect of the recordkeeping burdens discussed above. The Commission specifically request comment upon its determination that certain of the proposed recordkeeping requirements would not impose any additional information collection burdens upon affected registrants and the appropriateness of the burden hours attributed to other recordkeeping obligations. Pursuant to 44 U.S.C. 3506(c)(2)(B), the Commission solicits comments in order to: (i) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information will have practical utility; (ii) evaluate the accuracy of the Commission's estimate of the burden of the proposed collection of information; (iii) determine whether there are ways to enhance the quality, utility, and clarity of the information to be collected; and (iv) minimize the burden of the collection of information on those who are to respond, including through the use of automated collection techniques or other forms of information technology.

Comments may be submitted directly to the Office of Information and Regulatory Affairs, by fax at (202) 395-6566 or by e-mail at OIRAsubmissions@omb.eop.gov. Please provide the Commission with a copy of submitted comments so that all comments can be summarized and addressed in the final rule preamble. Refer to the ADDRESSES section of this notice of proposed rulemaking for comment submission instructions to the Commission. A copy of the supporting statements for the collections of information discussed above may be obtained by visiting RegInfo.gov. OMB is required to make a decision concerning the collection of information between 30 and 60 days after publication of this document in the Federal Register. Therefore, a comment is best assured of having its full effect if OMB receives it within 30 days of publication.

C. Cost-Benefit Analysis

Section 15(a) of the CEA requires the Commission to consider the costs and benefits of its actions before issuing a rulemaking under the CEA. By its terms, section 15(a) does not require the Commission to quantify the costs and benefits of a new regulation or to determine whether the benefits of the rule outweigh its costs; rather, it requires that the Commission “consider” the costs and benefits of its actions.

Section 15(a) further specifies that costs and benefits of a proposed rulemaking shall be evaluated in light of 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 may, in its discretion, give greater weight to any one of the five enumerated considerations and could, in its discretion, determine that, notwithstanding its costs, a particular regulation was necessary or appropriate to protect the public interest or to effectuate any of the provisions or to accomplish any of the purposes of the CEA.

Summary of proposed requirements. The proposed regulations would implement certain provisions of section 731 of the Dodd-Frank Act, which adds new sections 4s(f) and 4s(g) to the Commodity Exchange Act. The proposed regulations would set forth certain duties imposed upon swap dealers and major swap participants registered with the Commission with regard to recordkeeping and reporting of information and data in connection with such entities' activities in the swap market.

Costs. With respect to costs, the Commission has determined that for swap dealers and major swap participants, costs to institute recordkeeping and reporting systems and personnel in order to satisfy the new regulatory requirements are far outweighed by the benefits to the financial system as a whole. As described above, it is expected that the any additional cost imposed by the recordkeeping requirements of proposed regulations 23.201, 23.202, and 23.203 would be minimal because the information and data required to be recorded is information and data a prudent swap dealer or major swap participant would already maintain during the ordinary course of its business. Moreover, most swap dealers and major swap participants have adequate, existing resources and recordkeeping structures that are capable of adjusting to the new regulatory framework without material diversion of resources away from commercial operations.

Benefits. With respect to benefits, the Commission has determined that the proposed regulations would require a swap dealer or major swap participant to keep records and make reports that will result in reduced risk and greater market integrity in the swap market. Reporting to swap data repositories under 23.204 will provide regulators with a more transparent view of the swap market when such data is aggregated. Such reporting would further the goal of avoiding market disruptions and financial losses to market participants and the general public. Therefore, the Commission believes it is prudent to prescribe recordkeeping and reporting requirements for swap dealers and major swap participants.

The proposed regulations also would promote appropriate back office data management, thereby fostering better risk management. The proposed regulations also would reward efficiency insofar as swap dealers and major swap participants that operate efficiently would have lower operating costs and thus would require fewer resources to comply with the regulations. Finally, the proposed regulations are designed to ensure that swap dealers and major swap participants can sustain their market operations and meet their financial obligations to market participants, thus contributing to the integrity of the financial markets. Therefore, the Commission believes it is prudent to require risk management requirements for swap dealers and major swap participants.

Public Comment. The Commission invites public comment on its cost-benefit considerations. Commentators are also invited to submit any data or other information that they may have quantifying or qualifying the costs and benefits of the proposed rules with their comment letters.

List of Subjects in 17 CFR Part 23

• Antitrust
• Commodity futures
• Conduct standards
• Conflict of Interests
• Major swap participants
• Reporting and recordkeeping
• Swap dealers
• Swaps

For the reasons stated in this release, the Commission proposes to amend 17 CFR part 23 as proposed to be added by FR Doc. 2010-29024, published on November 23, 2010 (75 FR 71379) as follows:

PART 23—SWAP DEALERS AND MAJOR SWAP PARTICIPANTS

1. The authority citation for part 23 to read as follows:

Authority: 7 U.S.C. 1a, 2, 6, 6a, 6b, 6b-1, 6c, 6p, 6r, 6s, 6t, 9, 9a, 12, 12a, 13b, 13c, 16a, 18, 19, 21. 2. Subpart F, (consisting of §§ 23.200, 23.201, 23.202, 23.203, 23.204 and 23.205) is added to read as follows:

Subpart F—Reporting, Recordkeeping, and Daily Trading Records Requirements for Swap Dealers and Major Swap Participants

Appendices to Reporting, Recordkeeping, and Daily Trading Records Requirements for Swap Dealers and Major Swap Participants—Commission Voting Summary and Statements of Commissioners

Note:

The following appendices will not appear in the Code of Federal Regulations.

Appendix 1—Commission Voting Summary

On this matter, Chairman Gensler and Commissioners Dunn, Sommers, Chilton and O'Malia voted in the affirmative.

Appendix 2—Statement of Chairman Gary Gensler

I support the proposed rule regarding reporting, recordkeeping and daily trading records for swap dealers and major swap participants. The rule establishes the records to be maintained by swap dealers and major swap participants and the required reporting by such entities. This proposal will help increase transparency and promote market integrity. The proposed rules are consistent with the Congressional requirement that swap dealers and major swap participants comply with rigorous recordkeeping and real-time reporting regimes.