PART 46—SWAP DATA RECORDKEEPING AND REPORTING REQUIREMENTS: PRE-ENACTMENT AND TRANSITION SWAPS Authority: Title VII, sections 723 and 729, Pub. L. 111-203, 124 Stat. 1738. Source: 77 FR 35226, June 12, 2012, unless otherwise noted. § 46.1 Definitions. (a) As used in this part: Asset class Compliance date Confirmation confirming Confirmation data Electronic reporting Equity swap Financial entity Historical swap Minimum primary economic terms Minimum primary economic terms data Mixed swap Multi-asset swap Non-SD/MSP/DCO counterparty Pre-enactment swap Reporting counterparty Required swap continuation data Substitute counterparty identifier Transition swap (b) Other defined terms. [77 FR 35226, June 12, 2012, as amended at 85 FR 75594, Nov. 25, 2020] § 46.2 Recordkeeping for pre-enactment swaps and transition swaps. (a) Recordkeeping for pre-enactment and transition swaps in existence on or after April 25, 2011. (1) Minimum records required. (2) Additional records required to be kept if possessed by a counterparty. (i) Any confirmation of the swap executed by the counterparties. (ii) Any master agreement governing the swap, and any modification or amendment thereof. (iii) Any credit support agreement, or other agreement between the counterparties having the same function as a credit support agreement, relating to the swap, and any modification or amendment thereof. (3) Records created or available after the compliance date. (4) Retention form. (i) Records required to be kept by swap dealers or major swap participants may be kept in electronic form, or kept in paper form if originally created and exclusively maintained in paper form, so long as they are retrievable, and information in them is reportable as required by this part. (ii) Records required to be kept by non-SD/MSP/DCO counterparties may be kept in either electronic or paper form, so long as they are retrievable, and information in them is reportable, as required by this part. (b) Recordkeeping for pre-enactment and transition swaps expired or terminated prior to April 25, 2011. (1) Pre-enactment swaps expired prior to April 25, 2011. i.e., (2) Transition swaps expired prior to April 25, 2011. i.e., (c) Retention period. (d) Retrieval. (1) Retrieval for pre-enactment and transition swaps in existence on or after April 25, 2011. (i) Each record required to be kept by a counterparty that is a swap dealer or major swap participant shall be readily accessible via real time electronic access by the counterparty throughout the life of the swap and for two years following the final termination of the swap, and shall be retrievable by the registrant or its affiliates within three business days through the remainder of the period following final termination of the swap during which it is required to be kept. (ii) Each record required to be kept by a non-SD/MSP/DCO counterparty shall be retrievable by the counterparty within five business days throughout the period during which it is required to be kept. (2) Retrieval for pre-enactment and transition swaps expired or terminated prior to April 25, 2011. (e) Inspection. [77 FR 35226, June 12, 2012, as amended at 85 FR 75594, Nov. 25, 2020] § 46.3 Data reporting for pre-enactment swaps and transition swaps. (a) Reporting for pre-enactment and transition swaps in existence on or after April 25, 2011 Initial data report. (i) All of the minimum primary economic terms data specified in appendix 1 to this part that were in the possession of the reporting counterparty on or after April 25, 2011; (ii) The legal entity identifier of the reporting counterparty required pursuant to § 46.4; and (iii) The following additional identifiers: (A) The internal counterparty identifier or legal entity identifier used by the reporting counterparty to identify the non-reporting counterparty. (B) The internal transaction identifier used by the reporting counterparty to identify the swap. (2) Reporting of required swap continuation data. (ii) Swap continuation data reporting is not required for a pre-enactment or transition swap in existence on or after April 25, 2011, that has been cleared by a designated clearing organization. (3) Data reporting for multi-asset swaps and mixed swaps. (ii) For each pre-enactment or transition swap in existence on or after April 25, 2011, that is a mixed swap, all data required to be reported pursuant to this part shall be reported to a swap data repository registered with the Commission and to a security-based swap data repository registered with the Securities and Exchange Commission. This requirement may be satisfied by reporting the mixed swap to a swap data repository or security-based swap data repository registered with both Commissions. (b) Reporting for pre-enactment and transition swaps expired or terminated prior to April 25, 2011 Pre-enactment swaps expired or terminated prior to April 25, 2011. (2) Transition swaps expired or terminated prior to April 25, 2011. (c) Voluntary early submission of initial data report. (d) Non-duplication of previous reporting. (1) The counterparty shall not be required to report such previously reported information to the swap data repository again; (2) The counterparty shall be required to report to the swap data repository on the compliance date any information required as part of the initial data report by paragraph (a) of this section that has not been reported prior to the compliance date: and (3) In the case of pre-enactment and transition swaps in existence on or after April 25, 2011, the initial data report required by paragraph (a) of this section and all subsequent data reporting concerning the swap shall be made to the same swap data repository to which data concerning the swap was first reported prior to the compliance date (or to its successor in the event that it ceases to operate, as provided in part 49 of this chapter). [77 FR 35226, June 12, 2012, as amended at 85 FR 75594, Nov. 25, 2020] § 46.4 Unique identifiers. The unique identifier requirements for data reporting with respect to pre-enactment or transition swaps shall be as follows: (a) By the compliance date, the reporting counterparty (as defined by part 45 of this chapter) for each pre-enactment or transition swap in existence on or after April 25, 2011, for which an initial data report is required by this part 46, shall obtain for itself a legal entity identifier as provided in § 45.6 of this chapter (or if the Commission has not yet designated a legal entity identifier system, a substitute counterparty identifier), and shall include its own legal entity identifier (or substitute counterparty identifier) in the initial data report concerning the swap. With respect to the legal entity identifier (or substitute counterparty identifier) of the reporting counterparty, the reporting counterparty and the swap data repository to which the swap is reported shall comply thereafter with all unique identifier requirements of § 45.6 of this chapter. (b) Within 180 days after the compliance date, the non-reporting counterparty for each pre-enactment or transition swap in existence on or after April 25, 2011, for which an initial data report is required by this part 46, shall obtain a legal entity identifier as provided in § 45.6 of this chapter (or if the Commission has not yet designated a legal entity identifier system, a substitute counterparty identifier as provided in § 45.6(f) of this chapter), and shall provide its legal entity identifier (or substitute counterparty identifier) to the reporting counterparty. Upon receipt of the non-reporting counterparty's legal entity identifier (or substitute counterparty identifier), the reporting counterparty shall provide it to the swap data repository to which swap data for the swap was reported. Thereafter, with respect to the legal entity identifier (or substitute counterparty identifier) of the non-reporting counterparty, the counterparties to the swap and the swap data repository to which it is reported shall comply with all requirements of § 45.6 of this chapter. (c) The legal entity identifier requirements of parts 46 and 45 of this chapter shall not apply to pre-enactment or transition swaps expired or terminated prior to April 25, 2011. (d) The unique swap identifier, unique transaction identifier, and unique product identifier requirements of part 45 of this chapter shall not apply to pre-enactment or transition swaps. [77 FR 35226, June 12, 2012, as amended at 85 FR 75594, Nov. 25, 2020] § 46.5 Determination of which counterparty must report. (a) Determination of which counterparty must report data concerning each pre-enactment or transition swap shall be made as follows: (1) If only one counterparty is a swap dealer, the swap dealer shall fulfill all counterparty reporting obligations. (2) If neither party is an swap dealer, and only one counterparty is an major swap participant, the major swap participant shall fulfill all counterparty reporting obligations. (3) If both counterparties are non-SD/MSP/DCO counterparties, and only one counterparty is a financial entity as defined in CEA section 2(h)(7)(C), the counterparty that is a financial entity shall be the reporting counterparty. (4) For each pre-enactment swap or transition swap for which both counterparties are swap dealers, or both counterparties are major swap participants, or both counterparties are non-SD/MSP/DCO counterparties that are financial entities as defined in CEA section 2(h)(7)(C), or both counterparties are non-SD/MSP/DCO counterparties and neither counterparty is a financial entity as defined in CEA section 2(h)(7)(C), the counterparties shall agree which counterparty shall fulfill reporting obligations with respect to that swap; and the counterparty so selected shall fulfill all counterparty reporting obligations. (5) Notwithstanding the provisions of paragraphs (a)(1) through (3) of this section, for pre-enactment or transition swaps for which both counterparties are non-SD/MSP/DCO counterparties, if only one counterparty is a U.S. person, that counterparty shall be the reporting counterparty and shall fulfill all counterparty reporting obligations. (b) For pre-enactment and transition swaps in existence as of the compliance date, determination of the reporting counterparty shall be made by applying the provisions of paragraph (a) of this section with respect to the current counterparties to the swap as of the compliance date, regardless of whether either or both were original counterparties to the swap when it was first executed. (c) For pre-enactment and transition swaps for which reporting is required, but which have expired or been terminated prior to the compliance date, determination of the reporting counterparty shall be made by applying the provisions of paragraph (a) of this section to the counterparties to the swap as of the date of its expiration or termination (except for determination of a counterparty's status as an SD or MSP, which shall be made as of the compliance date), regardless of whether either or both were original counterparties to the swap when it was first executed. (d) After the initial report required by § 46.3 is made, if a reporting counterparty selected pursuant to this section ceases to be a counterparty to a swap due to an assignment or novation, the reporting counterparty for reporting of required swap continuation data following the assignment or novation shall be selected from the two current counterparties as provided in paragraphs (d)(1) through (4) of this section. (1) If only one counterparty is a swap dealer, the swap dealer shall be the reporting counterparty and shall fulfill all counterparty reporting obligations. (2) If neither counterparty is a swap dealer, and only one counterparty is a major swap participant, the major swap participant shall be the reporting counterparty and shall fulfill all counterparty reporting obligations. (3) If both counterparties are non-SD/MSP/DCO counterparties, and only one counterparty is a U.S. person, that counterparty shall be the reporting counterparty and shall fulfill all counterparty reporting obligations. (4) In all other cases, the counterparty that replaced the previous reporting counterparty by reason of the assignment or novation shall be the reporting counterparty, unless otherwise agreed by the counterparties. [77 FR 35226, June 12, 2012, as amended at 85 FR 75594, Nov. 25, 2020] § 46.6 Third-party facilitation of data reporting. Counterparties required by this part 46 to report data for any pre-enactment or transition swap, while remaining fully responsible for reporting as required by this part 46, may contract with third-party service providers to facilitate reporting. [77 FR 35226, June 12, 2012, as amended at 85 FR 75594, Nov. 25, 2020] § 46.7 Reporting to a single swap data repository. All data reported for each pre-enactment or transition swap pursuant to this part 46, and all corrections of errors and omissions in previously reported data for the swap, shall be reported to the same swap data repository to which the initial data report concerning the swap is made (or to its successor in the event that it ceases to operate, as provided in part 49 of this chapter). § 46.8 Data reporting for swaps in a swap asset class not accepted by any swap data repository. (a) Should there be a swap asset class for which no swap data repository registered with the Commission currently accepts data for pre-enactment and transition swaps, each registered entity or counterparty required by this part to report any such data with respect to a swap in that asset class must report that same data to the Commission. (b) Data reported to the Commission pursuant to this section shall be reported at times announced by the Commission. Data reported to the Commission pursuant to this section with respect to pre-enactment and transition swaps in existence on or after April 25, 2011 shall be reported in an electronic format acceptable to the Commission. (c) Delegation of authority to the Director of the Division of Data: The Commission hereby delegates to its Director of the Division of Data, until the Commission orders otherwise, the authority set forth in this paragraph (c), to be exercised by the Director of the Division of Data or by such other employee or employees of the Commission as may be designated by the Director of the Division of Data. The Director of the Division of Data may submit to the Commission for its consideration any matter which has been delegated in this paragraph. Nothing in this paragraph prohibits the Commission, at its election, from exercising the authority delegated in this paragraph. The authority delegated to the Director of the Division of Data by paragraph (c) of this section shall include: (1) With respect to all pre-enactment and transition swaps required to be reported by this part, the authority to determine the dates and times at which data concerning such swaps shall be reported pursuant to this part. (2) With respect to all pre-enactment swaps or transition swaps in existence on or after April 25, 2011: (i) The authority to determine the manner, format, coding structure, and electronic data transmission standards and procedures acceptable to the Commission for the purposes of paragraphs (a) and (b) of this section; and (ii) The authority to determine whether the Commission may permit or require use by registered entities or counterparties in reporting pre-enactment or transition swaps in existence on or after April 25, 2011, of one or more particular data standards (such as FIX, FpML, ISO 20022, or some other standard), in order to accommodate the needs of different communities of users. (d) The Director of the Division of Data shall publish from time to time in the Federal Register [77 FR 35226, June 12, 2012, as amended at 85 FR 75594, Nov. 25, 2020; 89 FR 71813, Sept. 4, 2024] § 46.9 Voluntary supplemental reporting. (a) For purposes of this section, the term voluntary, supplemental report (b) A voluntary, supplemental report for a pre-enactment or transition swap may be made only by a counterparty to the swap in connection with which the voluntary, supplemental report is made, or by a third-party service provider acting on behalf of a counterparty to the swap. (c) A voluntary, supplemental report for a pre-enactment or transition swap may be made only after the initial data report for the swap required by section 46.3(a) or the report required by section 46.3(b), as applicable, has been made. (d) A voluntary, supplemental report for a pre-enactment or transition swap may be made either to the swap data repository to which the initial data report for the swap required by section 46.3(a) or the report required by section 46.3(b), as applicable, has been made, or to a different swap data repository. (e) A voluntary, supplemental report for a pre-enactment or transition swap must contain: (1) An indication that the report is a voluntary, supplemental report. (2) The swap data repository identifier created for the swap by the automated systems of the swap data repository to which the initial data report required by section 46.3(a) or the report required by section 46.3(b), as applicable, has been made. (3) An indication of the identity of the swap data repository to which the initial data report required by section 46.3(a) or the report required by section 46.3(b), as applicable, has been made, if the voluntary supplemental report is made to a different swap data repository. (4) If the pre-enactment or transition swap was in existence on or after April 25, 2011, the legal entity identifier (or substitute identifier) of the counterparty making the voluntary, supplemental report. (5) If applicable, an indication that the voluntary, supplemental report is made pursuant to the laws or regulations of any jurisdiction outside the United States. (f) If a counterparty that has made a voluntary, supplemental report discovers any errors in the data for a pre-enactment or a transition swap included in the voluntary, supplemental report, the counterparty must report a correction of each such error to the swap data repository to which the voluntary, supplemental report was made, as soon as technologically practicable after discovery of any such error. [77 FR 35226, June 12, 2012, as amended at 85 FR 75594, Nov. 25, 2020] § 46.10 Required data standards. In reporting data for a pre-enactment or a transition swap to a swap data repository as required by this part 46, each reporting counterparty shall use the facilities, methods, or data standards provided or required by the swap data repository to which counterparty reports the data. In reporting required swap continuation data as required by this part, each reporting counterparty shall comply with the required data standards set forth in part 45 of this chapter, including those set forth in § 45.13(a) of this chapter. [77 FR 35226, June 12, 2012, as amended at 85 FR 75594, Nov. 25, 2020] § 46.11 Reporting of errors and omissions in previously reported data. (a) Each swap counterparty required by this part 46 to report data for a pre-enactment or a transition swap shall report any errors and omissions in the data so reported. Corrections of errors or omissions shall be reported as soon as technologically practicable after discovery of any such error or omission. (b) Each counterparty to a pre-enactment or transition swap that is not the reporting counterparty as determined pursuant to § 46.5, and that discovers any error or omission with respect to any data for a pre-enactment or transition swap reported to a swap data repository for that swap, shall promptly notify the reporting counterparty of each such error or omission. As soon as technologically practicable after receiving such notice, the reporting counterparty shall report a correction of each such error or omission to the swap data repository. (c) Each swap counterparty reporting corrections to errors or omissions in data previously reported as required by this part shall report such corrections in the same format as it reported the erroneous or omitted data. [77 FR 35226, June 12, 2012, as amended at 85 FR 75595, Nov. 25, 2020] Appendix 1 to Part 46—Tables of Minimum Primary Economic Terms Data For Pre-Enactment and Transition Swaps