Appendix B to Part 49 - Confidentiality Arrangement for Appropriate Domestic Regulators and Appropriate Foreign Regulators to Obtain Access to Swap Data Maintained by Swap Data Respositories Pursuant to §§ 49.17(d)(6) and 49.18(a)
17:2.0.1.1.8.0.1.32.12 : Appendix B
Appendix B to Part 49 - Confidentiality Arrangement for Appropriate
Domestic Regulators and Appropriate Foreign Regulators to Obtain
Access to Swap Data Maintained by Swap Data Respositories Pursuant
to §§ 49.17(d)(6) and 49.18(a)
The U.S. Commodity Futures Trading Commission (“CFTC”) and the
[name of foreign/domestic regulator (“ABC”)] (each an
“Authority” and collectively the “Authorities”) have entered into
this Confidentiality Arrangement (“Arrangement”) in connection with
[whichever is applicable] [CFTC Regulation
49.17(b)(1)[(i)-(vi)]/the determination order issued by the CFTC to
[ABC] (“Order”)] and any request for swap data by [ABC] to any swap
data repository (“SDR”) registered or provisionally registered with
the CFTC.
Article One: General Provisions
1. ABC is permitted to request and receive swap data directly
from an SDR (“Swap Data”) on the terms and subject to the
conditions of this Arrangement.
2. This Arrangement is entered into to fulfill the requirements
under Section 21(d) of the Commodity Exchange Act (“Act”) and CFTC
Regulation 49.18. Upon receipt by an SDR, this Arrangement will
satisfy the requirement for a written agreement pursuant to Section
21(d) of the Act and CFTC Regulation 49.17(d)(6). This Arrangement
does not apply to information that is [reported to an SDR pursuant
to [ABC]'s regulatory regime where the SDR also is registered with
[ABC] pursuant to separate statutory authority, even if such
information also is reported pursuant to the Act and CFTC
regulations][reported to an SDR pursuant to [ABC]'s regulatory
regime where the SDR also is registered with, or recognized or
otherwise authorized by, [ABC], which has supervisory authority
over the repository pursuant to foreign law and/or regulation, even
if such information also is reported pursuant to the Act and CFTC
regulations.] 1
1 The first bracketed phrase will be used for ADRs; the second
will be used for AFRs. The inapplicable phrase will be deleted.
3. This Arrangement is not intended to limit or condition the
discretion of an Authority in any way in the discharge of its
regulatory responsibilities or to prejudice the individual
responsibilities or autonomy of any Authority.
4. This Arrangement does not alter the terms and conditions of
any existing arrangements.
Article Two: Confidentiality of Swap Data
5. ABC will be acting within the scope of its jurisdiction in
requesting Swap Data and employs procedures to maintain the
confidentiality of Swap Data and any information and analyses
derived therefrom (collectively, the “Confidential Information”).
ABC undertakes to notify the CFTC and each relevant SDR promptly of
any change to ABC's scope of jurisdiction.
6. ABC undertakes to treat Confidential Information as
confidential and will employ safeguards that:
a. To the maximum extent practicable, identify the Confidential
Information and maintain it separately from other data and
information;
b. Protect the Confidential Information from misappropriation
and misuse;
c. Ensure that only authorized ABC personnel with a need to
access particular Confidential Information to perform their job
functions related to such Confidential Information have access
thereto, and that such access is permitted only to the extent
necessary to perform their job functions related to such particular
Confidential Information;
d. Prevent the disclosure of aggregated Confidential
Information; provided, however, that ABC is permitted to disclose
any sufficiently aggregated Confidential Information that is
anonymized to prevent identification, through disaggregation or
otherwise, of a market participant's business transactions, trade
data, market positions, customers, or counterparties;
e. Prohibit use of the Confidential Information by ABC personnel
for any improper purpose, including in connection with trading for
their personal benefit or for the benefit of others or with respect
to any commercial or business purpose; and
f. Include a process for monitoring compliance with the
confidentiality safeguards described herein and for promptly
notifying the CFTC, and each SDR from which ABC has received Swap
Data, of any violation of such safeguards or failure to fulfill the
terms of this Arrangement.
7. Except as provided in Paragraphs 6.d. and 8, ABC will not
onward share or otherwise disclose any Confidential
Information.
8. ABC undertakes that:
a. If a department, central bank, or agency of the Government of
the United States, it will not disclose Confidential Information
except in an action or proceeding under the laws of the United
States to which it, the CFTC, or the United States is a party;
b. If a department or agency of a State or political subdivision
thereof, it will not disclose Confidential Information except in
connection with an adjudicatory action or proceeding brought under
the Act or the laws of [name of either the State or the State
and political subdivision] to which it is a party; or
c. If a foreign futures authority or a department, central bank,
ministry, or agency of a foreign government or subdivision thereof,
or any other Foreign Regulator, as defined in Commission Regulation
49.2(a)(5), it will not disclose Confidential Information except in
connection with an adjudicatory action or proceeding brought under
the laws of [name of country, political subdivision, or (if a
supranational organization) supranational lawmaking body] to
which it is a party.
9. Prior to complying with any legally enforceable demand for
Confidential Information, ABC will notify the CFTC of such demand
in writing, assert all available appropriate legal exemptions or
privileges with respect to such Confidential Information, and use
its best efforts to protect the confidentiality of the Confidential
Information.
10. ABC acknowledges that, if it does not fulfill the terms of
this Arrangement, the CFTC may direct any SDR to suspend or revoke
ABC's access to Swap Data.
11. ABC will comply with all applicable security-related
requirements imposed by an SDR in connection with access to Swap
Data maintained by the SDR, as such requirements may be revised
from time to time.
12. ABC will promptly destroy all Confidential Information for
which it no longer has a need or which no longer falls within the
scope of its jurisdiction, and will certify to the CFTC, upon
request, that ABC has destroyed such Confidential Information.
Article Three: Administrative Provisions
13. This Arrangement may be amended with the written consent of
the Authorities.
14. The text of this Arrangement will be executed in English,
and may be made available to the public.
15. On the date this Arrangement is signed by the Authorities,
it will become effective and may be provided to any SDR that holds
and maintains Swap Data that falls within the scope of ABC's
jurisdiction.
16. This Arrangement will expire 30 days after any Authority
gives written notice to the other Authority of its intention to
terminate the Arrangement. In the event of termination of this
Arrangement, Confidential Information will continue to remain
confidential and will continue to be covered by this
Arrangement.
This Arrangement is executed in duplicate, this __day of __.
[
name of Chairman] Chairman, U.S. Commodity Futures Trading
Commission [
name of signatory] [
title] [
name of
foreign/domestic regulator] [Exhibit A: Description of Scope of
Jurisdiction. If ABC is not enumerated in Commission Regulations
49.17(b)(1)(i)-(vi), it must attach the Determination Order
received from the Commission pursuant to Commission Regulation
49.17(h). If ABC is enumerated in Commission Regulations
49.17(b)(1)(i)-(vi), it must attach a sufficiently detailed
description of the scope of ABC's jurisdiction as it relates to
Swap Data maintained by SDRs. In both cases, the description of the
scope of jurisdiction must include elements allowing SDRs to
establish, without undue obstacles, objective parameters for
determining whether a particular Swap Data request falls within
such scope of jurisdiction. Such elements could include legal
entity identifiers of all jurisdictional entities and could also
include unique product identifiers of all jurisdictional products
or, if no CFTC-approved unique product identifier and product
classification system is yet available, the internal product
identifier or product description used by an SDR from which Swap
Data is to be sought.] [85 FR 75671, Nov. 25, 2020]