7 U.S.C. § 24a — Swap data repositories

Page 146 TITLE 7—AGRICULTURE § 24a cally identifiable to a particular customer in a specific capacity; (3) the method by which the business of such commodity broker is to be conducted or liq- uidated after the date of the filing of the peti- tion under such chapter, including the pay- ment and allocation of margin with respect to commodity contracts not specifically identifi- able to a particular customer pending their or- derly liquidation; (4) any persons to which customer property and commodity contracts may be transferred under section 766 of title 11; and (5) how the net equity of a customer is to be determined. (b) Definitions As used in this section, the terms ‘‘commodity broker’’, ‘‘commodity contract’’, ‘‘customer’’, ‘‘customer property’’, ‘‘member property’’, ‘‘net equity’’, and ‘‘security’’ have the meanings as- signed such terms for the purposes of subchapter IV of chapter 7 of title 11. (c) Portfolio margining accounts The Commission shall exercise its authority to ensure that securities held in a portfolio mar- gining account carried as a futures account are customer property and the owners of those ac- counts are customers for the purposes of sub- chapter IV of chapter 7 of title 11. (Sept. 21, 1922, ch. 369, § 20, formerly § 19, as added Pub. L. 95–598, title III, § 302, Nov. 6, 1978, 92 Stat. 2673; renumbered and amended Pub. L. 97–222, § 20, July 27, 1982, 96 Stat. 241; Pub. L. 111–203, title VII, § 713(c), July 21, 2010, 124 Stat. 1647.) Editorial Notes AMENDMENTS 2010—Subsec. (c). Pub. L. 111–203 added subsec. (c). 1982—Subsec. (a)(3). Pub. L. 97–222, § 20(b), inserted ‘‘, including the payment and allocation of margin with respect to commodity contracts not specifically identifiable to a particular customer pending their or- derly liquidation’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2010 AMENDMENT Amendment by Pub. L. 111–203 effective on the later of 360 days after July 21, 2010, or, to the extent a provi- sion of subtitle A (§§ 711–754) of title VII of Pub. L. 111–203 requires a rulemaking, not less than 60 days after publication of the final rule or regulation imple- menting such provision of subtitle A, see section 754 of Pub. L. 111–203, set out as a note under section 1a of this title. EFFECTIVE DATE Section effective Nov. 6, 1978, see section 402(d) of Pub. L. 95–598, set out as a note preceding section 101 of Title 11, Bankruptcy. § 24a. Swap data repositories (a) Registration requirement (1) Requirement; authority of derivatives clear- ing organization (A) In general It shall be unlawful for any person, unless registered with the Commission, directly or indirectly to make use of the mails or any means or instrumentality of interstate com- merce to perform the functions of a swap data repository. (B) Registration of derivatives clearing orga- nizations A derivatives clearing organization may register as a swap data repository. (2) Inspection and examination Each registered swap data repository shall be subject to inspection and examination by any representative of the Commission. (3) Compliance with core principles (A) In general To be registered, and maintain registra- tion, as a swap data repository, the swap data repository shall comply with— (i) the requirements and core principles described in this section; and (ii) any requirement that the Commis- sion may impose by rule or regulation pur- suant to section 12a(5) of this title. (B) Reasonable discretion of swap data re- pository Unless otherwise determined by the Com- mission by rule or regulation, a swap data repository described in subparagraph (A) shall have reasonable discretion in estab- lishing the manner in which the swap data repository complies with the core principles described in this section. (b) Standard setting (1) Data identification (A) In general In accordance with subparagraph (B), the Commission shall prescribe standards that specify the data elements for each swap that shall be collected and maintained by each registered swap data repository. (B) Requirement In carrying out subparagraph (A), the Commission shall prescribe consistent data element standards applicable to registered entities and reporting counterparties. (2) Data collection and maintenance The Commission shall prescribe data collec- tion and data maintenance standards for swap data repositories. (3) Comparability The standards prescribed by the Commission under this subsection shall be comparable to the data standards imposed by the Commis- sion on derivatives clearing organizations in connection with their clearing of swaps. (c) Duties A swap data repository shall— (1) accept data prescribed by the Commis- sion for each swap under subsection (b); (2) confirm with both counterparties to the swap the accuracy of the data that was sub- mitted; (3) maintain the data described in paragraph (1) in such form, in such manner, and for such period as may be required by the Commission; Page 147 TITLE 7—AGRICULTURE § 24a (4)(A) provide direct electronic access to the Commission (or any designee of the Commis- sion, including another registered entity); and (B) provide the information described in paragraph (1) in such form and at such fre- quency as the Commission may require to comply with the public reporting require- ments contained in section 2(a)(13) of this title; (5) at the direction of the Commission, es- tablish automated systems for monitoring, screening, and analyzing swap data, including compliance and frequency of end user clearing exemption claims by individual and affiliated entities; (6) maintain the privacy of any and all swap transaction information that the swap data re- pository receives from a swap dealer, counterparty, or any other registered entity; and (7) on a confidential basis pursuant to sec- tion 12 of this title, upon request, and after no- tifying the Commission of the request, make available swap data obtained by the swap data repository, including individual counterparty trade and position data, to— (A) each appropriate prudential regulator; (B) the Financial Stability Oversight Council; (C) the Securities and Exchange Commis- sion; (D) the Department of Justice; and (E) any other person that the Commission determines to be appropriate, including— (i) foreign financial supervisors (includ- ing foreign futures authorities); (ii) foreign central banks; (iii) foreign ministries; and (iv) other foreign authorities; and (8) establish and maintain emergency proce- dures, backup facilities, and a plan for disaster recovery that allows for the timely recovery and resumption of operations and the fulfill- ment of the responsibilities and obligations of the organization. (d) Confidentiality agreement Before the swap data repository may share in- formation with any entity described in sub- section (c)(7), the swap data repository shall re- ceive a written agreement from each entity stating that the entity shall abide by the con- fidentiality requirements described in section 12 of this title relating to the information on swap transactions that is provided. (e) Designation of chief compliance officer (1) In general Each swap data repository shall designate an individual to serve as a chief compliance offi- cer. (2) Duties The chief compliance officer shall— (A) report directly to the board or to the senior officer of the swap data repository; (B) review the compliance of the swap data repository with respect to the requirements and core principles described in this section; (C) in consultation with the board of the swap data repository, a body performing a function similar to the board of the swap data repository, or the senior officer of the swap data repository, resolve any conflicts of interest that may arise; (D) be responsible for administering each policy and procedure that is required to be established pursuant to this section; (E) ensure compliance with this chapter (including regulations) relating to agree- ments, contracts, or transactions, including each rule prescribed by the Commission under this section; (F) establish procedures for the remedi- ation of noncompliance issues identified by the chief compliance officer through any— (i) compliance office review; (ii) look-back; (iii) internal or external audit finding; (iv) self-reported error; or (v) validated complaint; and (G) establish and follow appropriate proce- dures for the handling, management re- sponse, remediation, retesting, and closing of noncompliance issues. (3) Annual reports (A) In general In accordance with rules prescribed by the Commission, the chief compliance officer shall annually prepare and sign a report that contains a description of— (i) the compliance of the swap data re- pository of the chief compliance officer with respect to this chapter (including reg- ulations); and (ii) each policy and procedure of the swap data repository of the chief compli- ance officer (including the code of ethics and conflict of interest policies of the swap data repository). (B) Requirements A compliance report under subparagraph (A) shall— (i) accompany each appropriate financial report of the swap data repository that is required to be furnished to the Commis- sion pursuant to this section; and (ii) include a certification that, under penalty of law, the compliance report is accurate and complete. (f) Core principles applicable to swap data re- positories (1) Antitrust considerations Unless necessary or appropriate to achieve the purposes of this chapter, a swap data re- pository shall not— (A) adopt any rule or take any action that results in any unreasonable restraint of trade; or (B) impose any material anticompetitive burden on the trading, clearing, or reporting of transactions. (2) Governance arrangements Each swap data repository shall establish governance arrangements that are trans- parent— (A) to fulfill public interest requirements; and Page 148 TITLE 7—AGRICULTURE § 25 1 So in original. The word ‘‘or’’ probably should not appear. (B) to support the objectives of the Federal Government, owners, and participants. (3) Conflicts of interest Each swap data repository shall— (A) establish and enforce rules to minimize conflicts of interest in the decision-making process of the swap data repository; and (B) establish a process for resolving con- flicts of interest described in subparagraph (A). (4) Additional duties developed by Commission (A) In general The Commission may develop 1 or more additional duties applicable to swap data re- positories. (B) Consideration of evolving standards In developing additional duties under sub- paragraph (A), the Commission may take into consideration any evolving standard of the United States or the international com- munity. (C) Additional duties for Commission des- ignees The Commission shall establish additional duties for any registrant described in section 1a(48) of this title in order to minimize con- flicts of interest, protect data, ensure com- pliance, and guarantee the safety and secu- rity of the swap data repository. (g) Required registration for swap data reposi- tories Any person that is required to be registered as a swap data repository under this section shall register with the Commission regardless of whether that person is also licensed as a bank or registered with the Securities and Exchange Commission as a swap data repository. (h) Rules The Commission shall adopt rules governing persons that are registered under this section. (Sept. 21, 1922, ch. 369, § 21, as added Pub. L. 111–203, title VII, § 728, July 21, 2010, 124 Stat. 1697; amended Pub. L. 114–94, div. G, title LXXXVI, § 86001(b), Dec. 4, 2015, 129 Stat. 1797.) Editorial Notes PRIOR PROVISIONS A prior section 21 of act Sept. 21, 1922, ch. 369, as added by Pub. L. 96–276, § 7, June 17, 1980, 94 Stat. 542, related to silver markets activity and was set out as a note under section 4a of this title prior to repeal by Pub. L. 102–546, title IV, § 402(13), Oct. 28, 1992, 106 Stat. 3625. AMENDMENTS 2015—Subsec. (c)(7). Pub. L. 114–94, § 86001(b)(1)(A), substituted ‘‘swap’’ for ‘‘all’’ in introductory provi- sions. Subsec. (c)(7)(E)(iv). Pub. L. 114–94, § 86001(b)(1)(B), added cl. (iv). Subsec. (d). Pub. L. 114–94, § 86001(b)(2), added subsec. (d) and struck out former subsec. (d) which related to confidentiality and indemnification agreement. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2015 AMENDMENT Amendment by Pub. L. 114–94 effective as if enacted as part of the Dodd-Frank Wall Street Reform and Con- sumer Protection Act, Pub. L. 111–203, see section 86001(d) of Pub. L. 114–94, set out as a note under sec- tion 7a–1 of this title. EFFECTIVE DATE Section effective on the later of 360 days after July 21, 2010, or, to the extent a provision of subtitle A (§§ 711–754) of title VII of Pub. L. 111–203 requires a rule- making, not less than 60 days after publication of the final rule or regulation implementing such provision of subtitle A, see section 754 of Pub. L. 111–203, set out as an Effective Date of 2010 Amendment note under sec- tion 1a of this title. § 25. Private rights of action (a) Actual damages; actionable transactions; ex- clusive remedy (1) Any person (other than a registered entity or registered futures association) who violates this chapter or who willfully aids, abets, coun- sels, induces, or procures the commission of a violation of this chapter shall be liable for ac- tual damages resulting from one or more of the transactions referred to in subparagraphs (A) through (D) of this paragraph and caused by such violation to any other person— (A) who received trading advice from such person for a fee; (B) who made through such person any con- tract of sale of any commodity for future de- livery (or option on such contract or any com- modity) or any swap; or who deposited with or paid to such person money, securities, or prop- erty (or incurred debt in lieu thereof) in con- nection with any order to make such contract or any swap; (C) who purchased from or sold to such per- son or placed through such person an order for the purchase or sale of— (i) an option subject to section 6c of this title (other than an option purchased or sold on a registered entity or other board of trade); (ii) a contract subject to section 23 of this title; or 1 (iii) an interest or participation in a com- modity pool; or (iv) a swap; or (D) who purchased or sold a contract re- ferred to in subparagraph (B) hereof or swap if the violation constitutes— (i) the use or employment of, or an at- tempt to use or employ, in connection with a swap, or a contract of sale of a commodity, in interstate commerce, or for future deliv- ery on or subject to the rules of any reg- istered entity, any manipulative device or contrivance in contravention of such rules and regulations as the Commission shall promulgate by not later than 1 year after July 21, 2010; or (ii) a manipulation of the price of any such contract or swap or the price of the com- modity underlying such contract or swap. (2) Except as provided in subsection (b), the rights of action authorized by this subsection and by sections 7(d)(13), 7a–1(c)(2)(H), and 21(b)(10) of this title shall be the exclusive rem- edies under this chapter available to any person