Swap Execution Facilities Regulation
|FINAL RULES: On May 16, 2013, the CFTC approved several final rules affecting SEFs:|
|Final Rule Issue||Effective Date||Compliance Date|
|June 4, 2013||August 5, 2013||October 2, 2013 (one-year phase-in of RFQ minimum); Also see No-action relief note|
|Proposal Date||Final Rule Issue||Effective Date|
|February 23, 2012||May 31, 2013||July 20, 2013|
|Proposal Date||Final Rule Issue||Effective Date|
|December 5, 2011||June 4, 2013||August 5, 2013|
|Proposal Date||Final Rule Issue - Clearing||Final Rule Issue - Execution||Effective Date - Execution|
|September 20, 2011||July 30, 2012||June 4, 2013||September 28, 2012|
|Proposal Date||Comment Deadline||Final Rule Issue|
|January 6, 2011||June 3, 2011||TBA; 2013|
|Proposal Date||Comment Deadline||Reopened Comment Period Deadline|
|February 28, 2011||April 4, 2011||July 22, 2013|
Swap execution facilities (SEFs) were given life by the Dodd-Frank Act, which requires over-the counter (OTC) swaps to be cleared and traded on this new type of regulated platform. Any swap that is "made available to trade" must trade on designated contract market or a SEF. The CFTC has been given the responsibility to monitor swap execution facilities; the SEC has jurisdiction over security-based SEFs.
In the days leading up to the October 2, 2013 SEF compliance date, the CFTC issued several letters of no-action relief for certain SEF rules. On November 4, an additional letter extended deadlines for FX swaps View Letter.
- Extension of the compliance date for one month for FX swaps and two months for equity and commodity swaps; View Letter
- Extension of the compliance date for two months on requirements for customer legal documentation, processing customer information, and technological connectivity between SEFs, customers, swap data repositories, and third party regulatory service providers. View Letter
- Relief to temporarily registered SEFs from the confirmation requirement for uncleared swaps. This relief covers only FX, equity and commodity swaps. View Letter
- Relief from pre-execution screening requirements for futures commission merchants (Regulation 1.73) and temporarily registered SEFs (Regulation 37.702) until November 1, 2013. View Letter
On November 14, 2013, the CFTC issued guidance addressing "impartial access" requirements and swaps intended to be cleared ("ITBC") swaps. View Letter.
The CFTC has proposed, and in many cases finalized, new rules, guidance and acceptable practices to implement the new Section 5h to the Commodity Exchange Act (CEA) concerning the registration and operation of SEFs, as well as new Section 2(h)(8) to the CEA concerning the listing, trading and execution of swaps on SEFs. These regulations will require, among other things, that swaps subject to the clearing requirement of Section 2(h)(1) be executed on either designated contract market (DCM) or a Swap Execution Facility, unless no DCM or SEF "made the swap available for trading."
Swap Execution Facilities' (SEF) proposed regulation, released on January 7, 2011, was criticized by some in the industry, when the CFTC called for series of responsibilities that essentially would regulate SEFs more tightly than exchanges. Among the proposed rules are items such as: limiting the SEF's ability to outsource trade oversight responsibilities. SEFs are allowed to use a third-party firm to assist with compliance, but it would be held responsible for enforcing trading rules.
Rules Pertaining to Multiple Swap Entities
Core Principles and Other Requirements for Swap Execution Facilities
On January 7, 2011, the CFTC offered its proposed rules regarding Swap Execution Facilities. The open period for comment letters ran from from January 7 to March 8, 2011.
At a May 16, 2013 open meeting the CFTC approved a final rule that sets out core principles and other requirements for swap execution facilities. The rule entered the Federal Register on June 4, 2013; its effective date is August 5, 2013. Compliance will be required beginning October 2, 2013, although the rules on requests-for-quotes (RFQs) will be phased in over a one-year period.
Among the provisions of the final rules are 15 core principles covering areas such as:
- Trading and product requirements
- Compliance obligations;
- Surveillance obligations;
- Operational capabilities; and
- Financial information and resource requirements.
Process for a DCM or SEF to Make a Swap Available to Trade
At its December 5, 2011 open meeting, the CFTC approved a proposed rulemaking that would further define the process by which a swap execution facility or designated contract market shall make a swap "available for trade" under Section 2(h)(8) of the Commodity Exchange Act.
On May 16, 2013, the CFTC approved a final rule that sets the process by which a designated contract market or swap execution facility shall make a swap "available to trade." The rule entered the Federal Register on June 4, 2013; its effective date is August 5, 2013.
Under the final rule, a DCM or SEF may submit to the commission a determination that a swap is available to trade, either for approval or under self-certification procedures. The determination should have considered at least one of the following criteria:
- whether there are ready and willing buyers and sellers;
- the frequency or size of transactions;
- the trading volume;
- the number and types of market participants;
- the bid/ask spread; and
- the usual number of resting firm or indicative bids and offers.
Governance Requirements for Derivatives Clearing Organizations, Designated Contract Markets, and Swap Execution Facilities
In the Federal Register, Volume 76, No. 5 (Friday, January 7, 2011, the CFTC offered its proposed rules regarding Swap Execution Facilities. The open period for comment letters is from January 6 to March 7, 2011. Specifically, the CFTC requests comments on the following reporting, transparency in decision making, and limitations on use or disclosure of non-public information:
- Each DCO, DCM, or SEF must implement a regulatory program to identify potential conflicts of interest,prescribe limits on the use or disclosure of non-public information,and make certain information on governance arrangements available to the public and relevant authorities, including summaries of significant decisions.
- Each publicly-traded DCM must evaluate the breadth and cultural diversity of its Board of Directors;
- Each DCM must design and institute a process for considering the range of opinions that market participants hold with respect to the functioning of an existing market and new rules or rule amendments.
- Each DCO must have 10 percent customer representation on its Board of Directors, in lieu of having such representation on the RMC (or the RMC Subcommittee). Alternatively, each DCO must have 10 percent customer representation on the RMC (or the RMC Subcommittee), in lieu of having such representation on the DCO Board of Directors.
SEC Rule Proposals
On Feb. 2, 2011, the Securities and Exchange Commission voted unanimously to propose rules defining security-based swap execution facilities (SEFs) and establishing their registration requirements, as well as their duties and core principles.
The Commission's proposed rules:
- Interpret the definition of "security-based SEFs" as set forth in Dodd-Frank.
- Set out the registration requirements for security-based SEFs.
- Implement the 14 core principles for security-based SEFs that the legislation outlined.
- Establish the process for security-based SEFs to file rule changes and new products with the SEC.
- Exempt security-based SEFs from the definition of "exchange" and from most regulation as a broker.
Highlights of the Proposal
- Definition of a security-based swap execution facility (SB-SEF): a system or platform that allows more than one participant to interact with the trading interest of more than one other participant on the system or platform.
- Attributes of a SB-SEF: A limit-order book system; a request-for-quote (RFQ) system; creation and dissemination of composite indicative quotes
- SEF registration requirements:
- File with the Commission proposed changes to its rules as well as the security-based swaps that it intends to trade.
- Have rules to ensure compliance with the core principles outlined in the Dodd-Frank Act.
- Have rules regarding access to, and the financial integrity of transactions on, the security-based SEF.
- Put in place rules governing the procedures for trading on the security-based SEF.
- Ensure the integrity of security-based SEF systems by having policies and procedures reasonably designed to ensure that its systems have adequate levels of capacity, resiliency, and security.
- Make and keep certain books and records.
- Have adequate resources to operate as a security-based SEF.
For a comparison of the SEC and CFTC rule proposals, click HERE.
- ↑ U.S. watchdog allows delay to smooth transition to swaps trading. Reuters. Retrieved on September 30, 2013.
- ↑ CFTC’s Division of Market Oversight Provides Time-Limited No-Action Relief to Temporarily Registered SEFs. CFTC. Retrieved on September 30, 2013.
- ↑ Swap Execution Facilities. Federal Register. Retrieved on January 18, 2011.
- ↑ CFTC Swap-Trading Rules May Limit Market Entrants, Moody’s Says. Bloomberg. Retrieved on February 3, 2011.
- ↑ SEC Proposes Rules for Security-Based Swap Execution Facilities. U.S. Securities and Exchange Commission. Retrieved on February 4, 2011.