Last week, the CFTC issued a final rule on the data recordkeeping and reporting requirements for historical swaps.  Historical swaps are swaps executed prior to the passage of the Dodd-Frank Act and swaps entered into between the enactment of the act and applicable compliance date for recordkeeping. 

For swaps in existence on or after April 25, 2011, the date of publication of the proposed rule concerning historical swaps, counterparties must keep records of specified, minimum primary economic terms for a swap of the asset class in question.  The counterparty must also keep a confirmation, master agreement or credit support agreement concerning the historical swap that was in its possession on or after April 25, 2011.  For any swaps that expired before April 25, 2011, counterparties must keep the records they have.  The required records must be kept for five years after the swap’s termination or expiration.

With respect to data reporting requirements, for each historical swap in existence after April 25, 2011, counterparties are required to submit an initial electronic data report to a swap data repository on the applicable compliance date.  The initial data report must include all of the minimum primary economic terms specified for a historical swap of the asset class in question that are in possession of the reporting counterparty after April 25, 2011.  For any swaps that expired before April 25, 2011, the reporting party need only report information that was in the counterparty’s possession as of April 25, 2011.

To comply with data reporting requirement, counterparties may contract with third party service providers to facilitate reporting.  Swap dealers and major swap participants must full comply with the final rule by the following dates:

  • credit and interest rate swaps by Compliance Date 1, which is the later of July 16, 2012, or 60 calendar days after publication in the Federal Register of the later of the CFTC’s final rule defining swap, swap dealer or major swap participant; and
  • equity, foreign exchange and other commodity swaps by Compliance Date 2, which is 90 calendar days after Compliance Date 1.

Non-swap dealers and non-major swap participants must fully comply by Compliance Date 3, which is 90 calendar days after Compliance Date 2.