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Federal Register / Vol. 86, No. 117 / Tuesday, June 22, 2021 / Notices the pendency of the statement. 160 The applicant could instead rely on its discussion about how it complies with comparable CFTC requirements. 161 In its application, ICE Trade Vault provided exhibits that adapted its policies and procedures for regulatory reporting and public dissemination of swaps for use in the SBS market. The Commission believes that, with respect to its role in the regulatory reporting and public dissemination of SBS
transactions, ICE Trade Vault has satisfied the approach described by the Commission in the no-action statement regarding the information and representations sufficient to support its approval for registration as an SDR and SIP.162
ISDA Letter II raised several issues with respect to the ITV Application.
First, ISDA stated that there are challenges associated with ICE TVs requirements for reporting a counterparty identity when the counterparty does not have a legal entity identifier LEI and suggested that ICE
Trade Vault instead follow the approach set out in the DDR Rulebook.163 In addition, ISDA recommended that ICE
Trade Vault make a minor adjustment to the boolean indicator for the Package Trade Flag. 164 These scenarios can arise in the reporting of a swap transaction under the CFTC reporting rules currently, and ICE Trade Vault has represented that it is in compliance with applicable CFTC requirements and intends to rely on the Commissions position outlined in the ANE Adopting Release for applicable reporting rules and SBSDR duties for the period set forth therein. Therefore, these comments do not preclude the Commissions approval of ICE Trade Vaults application to register as an SDR
and as a SIP.
In addition, ISDA stated that the ITV
Rulebook should discuss Counterparty 2 identifiers that will be permitted under the new CFTC swap data reporting rules. 165 To the extent that 160 ANE

Adopting Release, supra note 12, at 6348.

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161 Id.
162 Because ICE Trade Vault has elected to rely on the no-action statement, see supra note 30, the Commission has not evaluated the ITV Application against any provisions of Regulation SBSR
specifically noted as not providing a basis for a Commission enforcement action during the pendency of the statement.
163 See ISDA Letter II at 23.
164 See id. at 4.
165 Id. at 3. The comment refers to revisions to Parts 43 and 45 adopted by the CFTC in September 2020, which include requirements for reporting new data elements as well as changes to how existing data elements should be reported. See Part 43 revisions, available at: www.cftc.gov/sites/
default/files/2020/11/2020-21568a.pdf; Part 45

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this suggestion involves changes to ICE
Trade Vaults systems, policies, and procedures for complying with future CFTC requirements, they are not part of ICE Trade Vaults existing systems, policies, and procedures and thus are not germane to the application being considered by the Commission.
However, the Commission expects that ICE Trade Vault will, in the future, explain to its participants how changes made to the systems, policies, and procedures for complying with CFTC
swap data reporting requirements will impact the reporting of security-based swap transactions.
ISDA also recommended that unique identification codes generated by ICE
Trade Vault be 52 rather than 54
characters in length, to align with the global standard for unique transaction identifiers UTIs, which are 52
characters in length.166 Although the Commission anticipates that ICE Trade Vault will utilize the global UTI system when implemented, implementation has not yet occurred. Therefore, this comment does not preclude the Commissions approval of ICE Trade Vaults application to register as an SDR
and as a SIP.
Furthermore, ISDA recommended that, until the global standard for unique product identifiers UPIs comes into effect, ICE Trade Vault utilize the ISDA
Taxonomy for product identifiers rather than ICE Trade Vaults own product taxonomy.167 The UPI system, like the UTI system, is not yet in effect. In the absence of an internationally recognized system, ICE Trade Vault may assign product identifiers using its own policies and procedures. Therefore, this comment does not preclude the Commissions approval of ICE Trade Vaults application to register as an SDR
and as a SIP.
ISDA also contested the requirement in ITV Rulebook to report Not Applicable where a data field is not applicable for a historical security-based swap transaction or an exotic SBS
submission. 168 Nothing in Regulation SBSR prohibits a registered SDR from requiring a reporting person to submit an affirmative response of Not Available instead of leaving a data field blank. This approach allows the registered SDR and the Commission to differentiate between a circumstance where the data element is truly Not Available from a circumstance where revisions, available at: www.cftc.gov/sites/default/
files/2020/11/2020-21569a.pdf.
166 See ISDA Letter II at 3.
167 See id. at 34.
168 See id. at 4.

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the reporting person has inappropriately failed to report the data element.
Finally, ISDA noted that, although the specifications in the ITV Rulebook technically align with the SEC
requirement that an SDR publicly disseminate immediately upon receipt, SDRs are also built to delay public dissemination under CFTC
requirements. ISDA suggested that complying with the SEC requirement would require SDRs to incur the cost of adding functionality to disseminate immediately under Regulation SBSR, and ISDA therefore requests that the SEC align its requirement with the CFTC requirement.169 To the extent that ISDA is requesting that the Commission modify the no-action statement in response to ISDAs comment, the Commission declines to do so.
Furthermore, because this comment pertains to a Commission position and not to the ICE Trade Vault Application, it does not affect the Commissions review of the ICE Trade Vault Application under the relevant statutory standards for registration as an SDR and as a SIP.170
IV. Evaluation of ICE Trade Vaults Application and Commission Findings Consistent with the standard for registration previously described in Part II.B,171 the Commission has considered whether ICE Trade Vault is so organized, and has the capacity, to be 169 See
id. at 5.
the CFTCs reporting rules, an SDR
must publicly disseminate swap transaction and pricing data as soon as technologically practicable after such data is received, unless such swap transaction and pricing data is subject to a time delay described in 43.5, in which case the swap transaction and pricing data shall be publicly disseminated in the manner described in 43.5. See 17 CFR 43.3b1. In addition, Appendix C to Part 43 provides clarification of the time delays for public dissemination set forth in 43.5. An SDR
subject to the CFTCs Part 43 rules must disseminate transaction and pricing data with a time delay if the transaction falls within 43.5, and must disseminate transaction and pricing data as soon as technologically practicable if it does not.
The Commissions no-action statement recognized that security-based swap transactions do not fall within 43.5 or Appendix C of Part 43. See ANE
Adopting Release, supra note 12, at 6347.
Accordingly, an SDR, when utilizing CFTC rather than SEC protocols for dissemination of a securitybased swap transaction, would not impose the time delay required for a swap transaction that falls within 43.5. Nevertheless, to offer some accommodation for certain large-sized securitybased swaps based on a single credit instrument or a narrow-based index of credit instruments, the Commission established a size cap of $5MM+ for any transaction having a true notional size of $5
million or greater. As explained in the Commissions no-action statement, this cap is also applied by the Financial Industry Regulatory Authority when disseminating transaction reports of economically similar cash debt securities. See id.
at 6347, n.768.
171 See supra notes 1517 and accompanying text.
170 Under
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