Appendix A to Part 49 - Form SDR
17:2.0.1.1.8.0.1.32.11 : Appendix A
Appendix A to Part 49 - Form SDR COMMODITY FUTURES TRADING
COMMISSION FORM SDR SWAP DATA REPOSITORY APPLICATION OR AMENDMENT
TO APPLICATION FOR REGISTRATION REGISTRATION INSTRUCTIONS
Intentional misstatements or omissions of material fact may
constitute federal criminal violations (7 U.S.C. 13 and 18 U.S.C.
1001) or grounds for disqualification from registration.
DEFINITIONS
Unless the context requires otherwise, all terms used in this
Form SDR have the same meaning as in the Commodity Exchange Act, as
amended (“Act”), and in the General Rules and Regulations of the
Commodity Futures Trading Commission (“Commission”) thereunder (17
CFR chapter I).
For the purposes of this Form SDR, the term “Applicant” shall
include any applicant for registration as a swap data repository or
any applicant amending a pending application.
GENERAL INSTRUCTIONS
1. This Form SDR, which includes instructions, a Cover Sheet,
and required Exhibits (together “Form SDR”), is to be filed with
the Commission by all Applicants, pursuant to section 21 of the Act
and the Commission's regulations thereunder. Upon the filing of an
application for registration in accordance with the instructions
provided herein, the Commission will publish notice of the filing
and afford interested persons an opportunity to submit written
comments concerning such application. No application for
registration shall be effective unless the Commission, by order,
grants such registration.
2. Individuals' names, except the executing signature, shall be
given in full (Last Name, First Name, Middle Name).
3. Signatures on all copies of the Form SDR filed with the
Commission can be executed electronically. If this Form SDR is
filed by a corporation, it shall be signed in the name of the
corporation by a principal officer duly authorized; if filed by a
limited liability company, it shall be signed in the name of the
limited liability company by a manager or member duly authorized to
sign on the limited liability company's behalf; if filed by a
partnership, it shall be signed in the name of the partnership by a
general partner duly authorized; if filed by an unincorporated
organization or association that is not a partnership, it shall be
signed in the name of such organization or association by the
managing agent, i.e., a duly authorized person who directs
manages or who participates in the directing or managing of its
affairs.
4. If this Form SDR is being filed as an application for
registration, all applicable items must be answered in full. If any
item is inapplicable, indicate by “none,” “not applicable,” or
“N/A,” as appropriate.
5. Under section 21 of the Act and the Commission's regulations
thereunder, the Commission is authorized to solicit the information
required to be supplied by this Form SDR from any Applicant seeking
registration as a swap data repository. Disclosure by the Applicant
of the information specified in this Form SDR is mandatory prior to
the start of the processing of an application for registration as a
swap data repository. The information provided in this Form SDR
will be used for the principal purpose of determining whether the
Commission should grant or deny registration to an Applicant. The
Commission may determine that additional information is required
from an Applicant in order to process its application. A Form SDR
that is not prepared and executed in compliance with applicable
requirements and instructions may be returned as not acceptable for
filing. Acceptance of this Form SDR, however, shall not constitute
a finding that the Form SDR has been filed as required or that the
information submitted is true, current, or complete.
6. Except in cases where confidential treatment is requested by
the Applicant and granted by the Commission pursuant to the Freedom
of Information Act and Commission Regulation § 145.9, information
supplied on this Form SDR will be included in the public files of
the Commission and will be available for inspection by any
interested person. The Applicant must identify with particularity
the information in these exhibits that will be subject to a request
for confidential treatment and supporting documentation for such
request pursuant to Commission Regulations § 40.8 and § 145.9.
APPLICATION AMENDMENTS
1. An Applicant amending a pending application for registration
as a swap data repository shall file an amended Form SDR
electronically with the Secretary of the Commission in the manner
specified by the Commission.
2. When filing this Form SDR for purposes of amending a pending
application, an Applicant must re-file the entire Cover Sheet,
amended if necessary, include an executing signature, and attach
thereto revised Exhibits or other materials marked to show any
amendments. The submission of an amendment to a pending application
represents that all unamended items and Exhibits remain true,
current, and complete as previously filed.
WHERE TO FILE
This Form SDR shall be filed electronically with the Secretary
of the Commission in the manner specified by the Commission.
EXHIBITS
INSTRUCTIONS
The following Exhibits must be included as part of Form SDR and
filed with the Commission by each Applicant seeking registration as
a swap data repository pursuant to section 21 of the Act and the
Commission's regulations thereunder. Such Exhibits must be labeled
according to the items specified in this Form SDR. If any Exhibit
is inapplicable, please specify the Exhibit letter and indicate by
“none,” “not applicable,” or “N/A,” as appropriate. The Applicant
must identify with particularity the information in these Exhibits
that will be subject to a request for confidential treatment and
supporting documentation for such request pursuant to Commission
Regulations § 40.8 and § 145.9.
If the Applicant is a newly formed enterprise and does not have
the financial statements required pursuant to Items 27 and 28 of
this form, the Applicant should provide pro forma financial
statements for the most recent six months or since inception,
whichever is less.
EXHIBITS I - BUSINESS ORGANIZATION
14. Attach as Exhibit A, any person who owns ten (10) percent or
more of Applicant's equity or possesses voting power of any class,
either directly or indirectly, through agreement or otherwise, in
any other manner, may control or direct the management or policies
of Applicant. “Control” for this purpose is defined in Commission
Regulation § 49.2(a).
State in Exhibit A the full name and address of each such person
and attach a copy of the agreement or, if there is none written,
describe the agreement or basis upon which such person exercises or
may exercise such control or direction.
15. Attach as Exhibit B, a narrative that sets forth the fitness
standards for the board of directors and its composition including
the number or percentage of public directors.
Attach a list of the present officers, directors (including an
identification of the public directors), governors (and, if the
Applicant is not a corporation, the members of all standing
committees grouped by committee), or persons performing functions
similar to any of the foregoing, of the swap data repository or of
the entity identified in Item 16 that performs the swap data
repository activities of the Applicant, indicating for each:
a. Name
b. Title
c. Date of commencement and, if appropriate, termination of
present term of position
d. Length of time each present officer, director, or governor
has held the same position
e. Brief account of the business experience of each officer and
director over the last five (5) years
f. Any other business affiliations in the securities industry or
OTC derivatives industry
g. A description of:
(1) any order of the Commission with respect to such person
pursuant to section 5e of the Act;
(2) any conviction or injunction within the past 10 years;
(3) any disciplinary action with respect to such person within
the last five (5) years;
(4) any disqualification under sections 8b and 8d of the
Act;
(5) any disciplinary action under section 8c of the Act; and
(6) any violation pursuant to section 9 of the Act.
h. For directors, list any committees on which the director
serves and any compensation received by virtue of their
directorship.
16. Attach as Exhibit C, the following information about the
chief compliance officer who has been appointed by the board of
directors of the swap data repository or a person or group
performing a function similar to such board of directors:
a. Name
b. Title
c. Dates of commencement and termination of present term of
office or position
d. Length of time the chief compliance officer has held the same
office or position
e. Brief account of the business experience of the chief
compliance officer over the last five (5) years
f. Any other business affiliations in the derivatives/securities
industry or swap data repository industry
g. A description of:
(1) any order of the Commission with respect to such person
pursuant to section 5e of the Act;
(2) any conviction or injunction within the past 10 years;
(3) any disciplinary action with respect to such person within
the last five (5) years;
(4) any disqualification under sections 8b and 8d of the
Act;
(5) any disciplinary action under section 8c of the Act; and
(6) any violation pursuant to section 9 of the Act.
17. Attach as Exhibit D, a copy of documents relating to the
governance arrangements of the Applicant, including, but not
limited to:
a. The nomination and selection process of the members on the
Applicant's board of directors, a person or group performing a
function similar to a board of directors (collectively, “board”),
or any committee that has the authority to act on behalf of the
board, the responsibilities of each of the board and such
committee, and the composition of each board and such
committee;
b. a description of the manner in which the composition of the
board allows the Applicant to comply with applicable core
principles, regulations, as well as the rules of the Applicant;
and
c. a description of the procedures to remove a member of the
board of directors, where the conduct of such member is likely to
be prejudicial to the sound and prudent management of the swap data
repository.
18. Attach as Exhibit E, a narrative or graphic description of
the organizational structure of the Applicant. Note: If the swap
data repository activities are conducted primarily by a division,
subdivision, or other segregable entity within the Applicant's
corporation or organization, describe the relationship of such
entity within the overall organizational structure and attach as
Exhibit E only such description as applies to the segregable
entity. Additionally, provide any relevant jurisdictional
information, including any and all jurisdictions in which the
Applicant or any affiliated entity is doing business and
registration status, including pending application (e.g.,
country, regulator, registration category, date of registration).
In addition, include a description of the lines of responsibility
and accountability for each operational unit of the Applicant to
(i) any committee thereof and/or (ii) the board.
19. Attach as Exhibit F, a copy of the conflicts of interest
policies and procedures implemented by the Applicant to minimize
conflicts of interest in the decision-making process of the swap
data repository and to establish a process for the resolution of
any such conflicts of interest.
20. Attach as Exhibit G, a list of all affiliates of the swap
data repository and indicate the general nature of the affiliation.
Provide a copy of any agreements entered into or to be entered by
the swap data repository, including partnerships or joint ventures,
or its participants, that will enable the Applicant to comply with
the registration requirements and core principles specified in
section 21 of the Act. With regard to an affiliate that is a parent
company of the Applicant, if such parent controls the Applicant, an
Applicant must provide (i) the board composition of the parent,
including public directors, and (ii) all ownership information
requested in Exhibit A for the parent. “Control” for this purpose
is defined in Commission Regulation § 49.2(a).
21. Attach as Exhibit H, a copy of the constitution; articles of
incorporation or association with all amendments thereto; existing
by-laws, rules, or instruments corresponding thereto, of the
Applicant. The Applicant shall also provide a certificate of good
standing dated within one week of the date of the application.
22. Where the Applicant is a foreign entity seeking registration
or filing an amendment to an existing registration, attach as
Exhibit I, an opinion of counsel that the swap data repository, as
a matter of law, is able to provide the Commission with prompt
access to the books and records of such swap data repository and
that the swap data repository can submit to onsite inspection and
examination by the Commission.
23. Where the Applicant is a foreign entity seeking
registration, attach as Exhibit I-1, a form that designates and
authorizes an agent in the United States, other than a Commission
official, to accept any notice or service of process, pleadings, or
other documents in any action or proceedings brought against the
swap data repository to enforce the Act and the regulations
thereunder.
24. Attach as Exhibit J, a current copy of the Applicant's
rules, as defined in Commission Regulation § 40.1, consisting of
all the rules necessary to carry out the duties as a swap data
repository.
25. Attach as Exhibit K, a description of the Applicant's
internal disciplinary and enforcement protocols, tools, and
procedures. Include the procedures for dispute resolution.
26. Attach as Exhibit L, a brief description of any material
pending legal proceeding(s), other than ordinary and routine
litigation incidental to the business, to which the Applicant or
any of its affiliates is a party or to which any of its or their
property is the subject. Include the name of the court or agency in
which the proceeding(s) are pending, the date(s) instituted, and
the principal parties thereto, a description of the factual basis
alleged to underlie the proceeding(s) and the relief sought.
Include similar information as to any such proceeding(s) known to
be contemplated by the governmental agencies.
EXHIBITS II - FINANCIAL INFORMATION
27. Attach as Exhibit M, a balance sheet, statement of income
and expenses, statement of sources and application of revenues, and
all notes or schedules thereto, as of the most recent fiscal year
of the Applicant. If a balance sheet and statements certified by an
independent public accountant are available, such balance sheet and
statement shall be submitted as Exhibit M.
28. Attach as Exhibit N, a balance sheet and an income and
expense statement for each affiliate of the swap data repository
that also engages in swap data repository activities as of the end
of the most recent fiscal year of each such affiliate.
29. Attach as Exhibit O, the following:
a. A complete list of all dues, fees, and other charges imposed,
or to be imposed, by or on behalf of Applicant for its swap data
repository services and identify the service or services provided
for each such due, fee, or other charge.
b. Furnish a description of the basis and methods used in
determining the level and structure of the dues, fees, and other
charges listed in paragraph a of this item.
c. If the Applicant differentiates, or proposes to
differentiate, among its customers, or classes of customers in the
amount of any dues, fees, or other charges imposed for the same or
similar services, so state and indicate the amount of each
differential. In addition, identify and describe any differences in
the cost of providing such services, and any other factors, that
account for such differentiations.
EXHIBITS III - OPERATIONAL CAPABILITY
30. Attach as Exhibit P, copies of all material contracts with
any swap execution facility, designated contract market, clearing
agency, central counterparty, or third party service provider. To
the extent that form contracts are used by the Applicant, submit a
sample of each type of form contract used. In addition, include a
list of swap execution facilities, designated contract markets,
clearing agencies, central counterparties, and third party service
providers with whom the Applicant has entered into material
contracts. Where swap data repository functions are performed by a
third-party, attach any agreements between or among the Applicant
and such third party, and identify the services that will be
provided.
31. Attach as Exhibit Q, any technical manuals, other guides or
instructions for users of, or participants in, the market.
32. Attach as Exhibit R, a description of system test
procedures, test conducted or test results that will enable the
Applicant to comply, or demonstrate the Applicant's ability to
comply, with the core principles for swap data repositories.
33. Attach as Exhibit S, a description in narrative form, or by
the inclusion of functional specifications, of each service or
function performed as a swap data repository. Include in Exhibit S
a description of all procedures utilized for the collection,
processing, distribution, publication, and retention (e.g.,
magnetic tape) of information with respect to transactions or
positions in, or the terms and conditions of, swaps entered into by
market participants.
34. Attach as Exhibit T, a list of all computer hardware
utilized by the Applicant to perform swap data repository
functions, indicating where such equipment (terminals and other
access devices) is physically located.
35. Attach as Exhibit U, a description of the personnel
qualifications for each category of professional employees employed
by the swap data repository or the division, subdivision, or other
segregable entity within the swap data repository as described in
Item 16.
36. Attach as Exhibit V, a description of the measures or
procedures implemented by Applicant to provide for the security of
any system employed to perform the functions of a swap data
repository. Include a general description of any physical and
operational safeguards designed to prevent unauthorized access
(whether by input or retrieval) to the system. Describe any
circumstances within the past year in which the described security
measures or safeguards failed to prevent any such unauthorized
access to the system and any measures taken to prevent a
reoccurrence. Describe any measures used to verify the accuracy of
information received or disseminated by the system.
37. Attach as Exhibit W, copies of emergency policies and
procedures and Applicant's business continuity-disaster recovery
plan. Include a general description of any business
continuity-disaster recovery resources, emergency procedures, and
backup facilities sufficient to enable timely recovery and
resumption of its operations and resumption of its ongoing
fulfillment of its duties and obligations as a swap data repository
following any disruption of its operations.
38. Where swap data repository functions are performed by
automated facilities or systems, attach as Exhibit X a description
of all backup systems or subsystems that are designed to prevent
interruptions in the performance of any swap data repository
function as a result of technical malfunctions or otherwise in the
system itself, in any permitted input or output system connection,
or as a result of any independent source. Include a narrative
description of each type of interruption that has lasted for more
than two minutes and has occurred within the six (6) months
preceding the date of the filing, including the date of each
interruption, the cause, and duration. Also state the total number
of interruptions that have lasted two minutes or less.
39. Attach as Exhibit Y, the following:
a. For each of the swap data repository functions:
(1) Quantify in appropriate units of measure the limits on the
swap data repository's capacity to receive (or collect), process,
store, or display (or disseminate for display or other use) the
data elements included within each function (e.g., number of
inquiries from remote terminals);
(2) identify the factors (mechanical, electronic, or other) that
account for the current limitations reported in answer to (1) on
the swap data repository's capacity to receive (or collect),
process, store, or display (or disseminate for display or other
use) the data elements included within each function.
b. If the Applicant is able to employ, or presently employs, the
central processing units of its system(s) for any use other than
for performing the functions of a swap data repository, state the
priorities of assignment of capacity between such functions and
such other uses, and state the methods used or able to be used to
divert capacity between such functions and such other uses.
EXHIBITS IV - ACCESS TO SERVICES
40. Attach as Exhibit Z, the following:
a. As to each swap data repository service that the Applicant
provides, state the number of persons who presently utilize, or who
have notified the Applicant of their intention to utilize, the
services of the swap data repository.
b. For each instance during the past year in which any person
has been prohibited or limited in respect of access to services
offered by the Applicant as a swap data repository, indicate the
name of each such person and the reason for the prohibition or
limitation.
c. Define the data elements for purposes of the swap data
repository's real-time public reporting obligation. Appendix A to
Part 43 of the Commission's Regulations (Data Elements and Form for
Real-Time Reporting for Particular Markets and Contracts) sets
forth the specific data elements for real-time public
reporting.
41. Attach as Exhibit AA, copies of any agreements governing the
terms by which information may be shared by the swap data
repository, including with market participants. To the extent that
form contracts are used by the Applicant, submit a sample of each
type of form contract used.
42. Attach as Exhibit BB, a description of any specifications,
qualifications, or other criteria that limit, are interpreted to
limit, or have the effect of limiting access to or use of any swap
data repository services furnished by the Applicant and state the
reasons for imposing such specifications, qualifications, or other
criteria, including whether such specifications, qualifications, or
other criteria are imposed.
43. Attach as Exhibit CC, any specifications, qualifications, or
other criteria required of participants who utilize the services of
the Applicant for collection, processing, preparing for
distribution, or public dissemination by the Applicant.
44. Attach as Exhibit DD, any specifications, qualifications, or
other criteria required of any person, including, but not limited
to, regulators, market participants, market infrastructures, venues
from which data could be submitted to the Applicant, and third
party service providers who request access to data maintained by
the Applicant.
45. Attach as Exhibit EE, policies and procedures implemented by
the Applicant to review any prohibition or limitation of any person
with respect to access to services offered or data maintained by
the Applicant and to grant such person access to such services or
data if such person has been discriminated against unfairly.
EXHIBITS V - OTHER POLICIES AND PROCEDURES
46. Attach as Exhibit FF, a narrative and supporting documents
that may be provided under other Exhibits herein, that describes
the manner in which the Applicant is able to comply with each core
principle and other requirements pursuant to Commission Regulation
§ 49.19.
47. Attach as Exhibit GG, policies and procedures implemented by
the Applicant to protect the privacy of any and all SDR data,
section 8 material, and SDR information that the swap data
repository receives from reporting entities.
48. Attach as Exhibit HH, a description of safeguards, policies,
and procedures implemented by the Applicant to prevent the
misappropriation or misuse of (a) any confidential information
received by the Applicant, including, but not limited to, SDR data,
section 8 material, and SDR information, about a market participant
or any of its customers; and/or (b) intellectual property by
Applicant or any person associated with the Applicant for their
personal benefit or the benefit of others.
49. Attach as Exhibit II, policies and procedures implemented by
the Applicant regarding its use of the SDR data, section 8
material, and SDR information that it receives from a market
participant, any registered entity, or any person for
non-commercial and/or commercial purposes.
50. Attach as Exhibit JJ, procedures and a description of
facilities of the Applicant for effectively resolving disputes over
the accuracy of the SDR data and positions that are maintained by
the swap data repository.
51. Attach as Exhibit KK, policies and procedures relating to
the Applicant's calculation of positions.
52. Attach as Exhibit LL, policies and procedures that are
reasonably designed to prevent any provision in a valid swap from
being invalidated or modified through the procedures or operations
of the Applicant.
53. Attach as Exhibit MM, Applicant's policies and procedures
that ensure that the SDR data that are maintained by the Applicant
continues to be maintained after the Applicant withdraws from
registration as a swap data repository, which shall include
procedures for transferring the SDR data to the Commission or its
designee (including another swap data repository).
[85 FR 75663, Nov. 25, 2020]