The U.S. Commodity Futures Trading Commission has announced a final rule governing record-keeping and reporting of two types of swap transactions;” (a) pre-enactment – entered into either before the passage of the Dodd-Frank Act, and (b) transitional – entered into between the passage of Dodd-Frank and a future compliance date contingent on upcoming final definitions of “swap,” Swap Dealer (SD),” and “Major Swap Participant (MSP).”
The requirements for pre-enactment swaps will be significantly less strict than those for transitional ones. In addition, SDs and MSPs are held to a higher standard than entities that do not fall under those definitions.
For swaps in existence on or after April 25, 2011, counterparties must keep records of specified, minimum primary economic terms for the type of swap in question. SDs and MSPs must keep the records in electronic form (unless the record was originally in paper form), while other counterparties may choose between paper and electronic records. All counterparties must also keep the original confirmation, master support agreement, and/or credit support agreement governing the swap.
Counterparties must submit an initial data report to a swap data repository (SDR) for each transitional swap, as well as continuing data while the swap is in existence. If the swap is still in existence after the applicable compliance date, the counterparty must also report any changes made to the original terms under which the swap was executed.
For swaps that expired before April 25, 2011, there are no specific requirements, but counterparties are required to keep whatever records they may still have.
All swap data retained under the above requirements must be kept for five years following the termination or expiration of the swap.