[Federal Register Volume 86, Number 52 (Friday, March 19, 2021)]
[Notices]
[Pages 14968-14974]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-05744]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-91331; File No. SBSDR-2021-01]


Security-Based Swap Data Repositories; ICE Trade Vault, LLC; 
Notice of Filing of Application for Registration as a Security-Based 
Swap Data Repository

March 16, 2021.

I. Introduction

    On February 11, 2021, ICE Trade Vault, LLC (``ICE Trade Vault'') 
filed with the Securities and Exchange Commission (``Commission'') an 
application on Form SDR to register as a security-based swap data 
repository (``SDR'') pursuant to Section 13(n)(1) of the Securities 
Exchange Act of 1934 (``Exchange Act'') and 17 CFR 240.13n-1 (``Rule 
13n-1'') thereunder,\1\ and as a securities information processor 
(``SIP'') under Section 11A(b) of the Exchange Act.\2\ ICE Trade Vault 
amended its application on March 10 and March 11, 2021. ICE Trade Vault 
intends to operate as a registered SDR for security-based swap 
(``SBS'') transactions in the credit derivatives asset class. The 
Commission is publishing this notice to solicit comments from 
interested persons regarding ICE Trade Vault's application,\3\ and the 
Commission will consider any comments it receives in making its 
determination whether to approve ICE Trade Vault's application for 
registration as an SDR and as a SIP.
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    \1\ 15 U.S.C. 78m(n)(1); 17 CFR 240.13n-1. A copy of ICE Trade 
Vault's application on Form SDR and all non-confidential exhibits 
and amendments thereto are available for public viewing on the 
Commission's website. In 2016, ICE Trade Vault submitted a prior 
application for registration as an SDR. See Release No. 77699 (Apr. 
22, 2016), 81 FR 25475 (Apr. 28, 2016); Release No. 34-81223 (July 
27, 2017), 82 FR 35844 (Aug. 1, 2017). ICE Trade Vault withdrew this 
prior application in 2018. See Letter from Kara Dutta, General 
Counsel, ICE Trade Vault, Mar. 23, 2018, https://www.sec.gov/divisions/marketreg/sdr/ice-trade-vault-sdr-application-withdrawal-letter-032318.pdf.
    \2\ 15 U.S.C. 78k-1(b).
    \3\ The descriptions set forth in this notice regarding the 
structure and operations of ICE Trade Vault have been derived, 
excerpted, or summarized from ICE Trade Vault's application on Form 
SDR.
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II. Background

A. SDR Registration, Duties, and Core Principles

    Section 13(n) of the Exchange Act makes it 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 commerce 
to perform the functions of an SDR.\4\ To be registered and maintain 
registration, an SDR must comply with certain requirements and core 
principles described in Section 13(n), as well as any requirements that 
the Commission may impose by rule or regulation.\5\ In 2015, the 
Commission adopted 17 CFR 240.13n-1 to 13n-12 under the Exchange Act to 
establish Form SDR, the procedures for registration as an SDR, and the 
duties and core principles applicable to an SDR (``SDR Rules'').\6\ The 
Commission provided a temporary exemption from compliance with the SDR 
Rules and also extended exemptions from the provisions of the Dodd-
Frank Act set forth in a Commission order providing temporary 
exemptions and other temporary relief from compliance with certain 
provisions of the Exchange Act concerning security-based swaps, and 
these temporary exemptions expired in 2017.\7\
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    \4\ 15 U.S.C. 78m(n).
    \5\ Id.
    \6\ See Release No. 34-74246 (Feb. 11, 2015), 80 FR 14438, 14438 
(Mar. 19, 2015) (``SDR Adopting Release''). In 2016, the Commission 
subsequently amended 17 CFR 240.13n-4 to address third-party 
regulatory access to SBS data obtained by an SDR. See Release No. 
34-78716 (Aug. 29, 2016), 81 FR 60585 (Sep. 2, 2016).
    \7\ See Release No. 34-80359 (Mar. 31, 2017), 82 FR 16867 (Apr. 
6, 2017).
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    The Commission also has adopted 17 CFR 242.900 to 909 under the 
Exchange Act (collectively, ``Regulation SBSR''), which governs 
regulatory reporting and public dissemination of security-based swap 
transactions.\8\ Among other things, Regulation SBSR requires each 
registered SDR to register with the Commission as a SIP,\9\ and the 
Form SDR constitutes an application for registration as a SIP, as well 
as an SDR.\10\
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    \8\ Release No. 34-74244 (Feb. 11, 2015), 80 FR 14563 (Mar. 19, 
2015); Release No. 34-78321 (July 14, 2016), 81 FR 53546 (Aug. 12, 
2016). Regulation SBSR and the SDR Rules are referred to 
collectively as the ``SBS Reporting Rules.''
    \9\ See 17 CFR 242.909.
    \10\ See Form SDR, Instruction 2.
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    In 2019, the Commission stated that implementation of the SBS 
Reporting Rules can and should be done in a manner that carries out the 
fundamental policy goals of the SBS Reporting Rules while minimizing 
burdens as much as practicable.\11\ Noting ongoing concerns among 
market participants about incurring unnecessary burdens and the 
Commission's efforts to promote harmonization between the SBS Reporting 
Rules and swap reporting rules, the Commission took the position that, 
for four years following Regulation SBSR's Compliance Date 1 in each 
asset class,\12\ certain actions with respect to the SBS Reporting 
Rules would not provide a basis for a Commission enforcement 
action.\13\ The no-action statement's relevance to ICE Trade Vault's 
application for registration as an SDR and SIP is discussed further 
below.
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    \11\ Release No. 34-87780 (Dec. 18, 2019), 85 FR 6270, 6347 
(Feb. 4, 2020) (``ANE Adopting Release'').
    \12\ See id. Under Regulation SBSR, the first compliance date 
(``Compliance Date 1'') for affected persons with respect to an SBS 
asset class is the first Monday that is the later of: (i) six months 
after the date on which the first SDR that can accept transaction 
reports in that asset class registers with the Commission; or (ii) 
one month after the compliance date for registration of SBS dealers 
and major SBS participants (``SBS entities''). Id. at 6346. The 
compliance date for registration of SBS entities is October 6, 2021. 
See id. at 6270, 6345.
    \13\ See id. The specific rule provisions of the SBS Reporting 
Rules affected by the no-action statement are discussed in Part 
II.B.
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B. Standard for Registration

    As noted above, to be registered with the Commission as an SDR and 
maintain such registration, an SDR is required to comply with the 
requirements and core principles described in Section 13(n) of the 
Exchange Act, as well as with any requirement that the Commission may 
impose by rule or regulation.\14\ In addition, Rule 13n-1(c)(3) under 
the Exchange Act provides that the Commission shall grant the 
registration of an SDR if it finds that the SDR is so organized, and 
has the capacity, to be able to: (i) Assure the prompt, accurate, and 
reliable performance of its functions as an SDR; (ii) comply with any 
applicable provisions of the securities laws and the rules and 
regulations thereunder; and (iii) carry out its functions in a manner 
consistent with the purposes of Section 13(n) of the Exchange Act and 
the rules and regulations thereunder.\15\ The Commission shall deny the 
registration of an SDR if it does not make any such finding.\16\ 
Similarly, to be registered with the Commission as a SIP, the 
Commission must find that such applicant is so organized, and has the 
capacity, to be able to assure the prompt, accurate, and reliable 
performance of its functions as a SIP,

[[Page 14969]]

comply with the provisions of the Exchange Act and the rules and 
regulations thereunder, carry out its functions in a manner consistent 
with the purposes of the Exchange Act, and, insofar as it is acting as 
an exclusive processor, operate fairly and efficiently.\17\
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    \14\ See 15 U.S.C. 78m(n)(3).
    \15\ 17 CFR 240.13n-1(c)(3).
    \16\ Id.
    \17\ See 15 U.S.C. 78k-1(b)(3).
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    In determining whether an applicant meets the criteria set forth in 
Rule 13n-1(c), the Commission will consider the information reflected 
by the applicant on its Form SDR, as well as any additional information 
obtained from the applicant. For example, Form SDR requires an 
applicant to provide a list of the asset classes for which the 
applicant is collecting and maintaining data or for which it proposes 
to collect and maintain data, a description of the functions that it 
performs or proposes to perform, general information regarding its 
business organization, and contact information.\18\ Obtaining this 
information and other information reflected on Form SDR and the 
exhibits thereto--including the applicant's overall business structure, 
financial condition, track record in providing access to its services 
and data, technological reliability, and policies and procedures to 
comply with its statutory and regulatory obligations--will enable the 
Commission to determine whether to grant or deny an application for 
registration.\19\ Furthermore, the information requested in Form SDR 
will enable the Commission to assess whether the applicant is so 
organized and has the capacity to comply and carry out its functions in 
a manner consistent with the federal securities laws and the rules and 
regulations thereunder, including the SBS Reporting Rules.\20\
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    \18\ See SDR Adopting Release, supra note 6, at 14459.
    \19\ See id. at 14458.
    \20\ See id. at 14458-59.
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    Consistent with the Commission's no-action statement in the ANE 
Adopting Release,\21\ an entity wishing to register with the Commission 
as an SDR must still submit an application on Form SDR but can address 
the rule provisions included in the no-action statement by discussing 
how the SDR complies with comparable Commodity Futures Trading 
Commission (``CFTC'') requirements.\22\ Accordingly, in such instances 
the Commission will not assess an SDR application for consistency or 
compliance with the rule provisions included in the Commission's no-
action statement. Specifically, the Commission identified the following 
provisions as not providing a basis for an enforcement action against a 
registered SDR for the duration of the relief provided in the 
Commission statement: Under Regulation SBSR, aspects of 17 CFR 
242.901(a), 901(c)(2) through (7), 901(d), 901(e), 902, 903(b), 906(a) 
and (b), and 907(a)(1), (a)(3), and (a)(4) through (6); under the SDR 
Rules, aspects of Section 13(n)(5)(B) of the Exchange Act and 17 CFR 
240.13n-4(b)(3) thereunder, and aspects of 17 CFR 240.13n-5(b)(1)(iii); 
and under Section 11A(b) of the Exchange Act, any provision pertaining 
to SIPs.\23\ Thus, an SDR applicant will not need to include materials 
in its application explaining how it would comply with the provisions 
noted above, and could instead rely on its discussion about how it 
complies with comparable CFTC requirements.\24\ The applicant may 
instead represent in its application that it: (i) Is registered with 
the CFTC as a swap data repository; (ii) is in compliance with 
applicable requirements under the swap reporting rules; (iii) satisfies 
the standard for Commission registration of an SDR under Rule 13n-1(c); 
and (iv) intends to rely on the no-action statement included in the ANE 
Adopting Release for the period set forth in the ANE Adopting Release 
with respect to any SBS asset class or classes for which it intends to 
accept transaction reports.\25\
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    \21\ See supra notes 11-13 and accompanying text.
    \22\ See supra note 13.
    \23\ The ANE Adopting Release provides additional discussion of 
the particular aspects of the affected rules that would not provide 
a basis for an enforcement action. See ANE Adopting Release, supra 
note 11, at 6347-48.
    \24\ Id. at 6348.
    \25\ Id. For example, an applicant need not describe in Exhibit 
S its functions as a SIP.
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III. Summary of ICE Trade Vault's Application on Form SDR

    As noted above, ICE Trade Vault intends to operate as a registered 
SDR for the credit derivatives asset class.\26\ ICE Trade Vault states 
that its core duties are: (i) Acceptance and confirmation of data; (ii) 
recordkeeping; (iii) public reporting; (iv) maintaining data privacy 
and integrity; and (v) permitting access to regulators.\27\ It notes 
that its fundamental purpose is to provide transparency to the SBS 
market and publicly disseminate trade information.\28\ In its 
application, ICE Trade Vault represents that it is provisionally 
registered with the CFTC as a swap data repository, is in compliance 
with applicable requirements under the CFTC reporting rules applicable 
to a registered swap data repository, and intends to rely on the 
Commission's position outlined in the ANE Adopting Release for 
applicable reporting rules and SBSDR duties for the period set forth 
therein.\29\ Below is an overview of the representations made in the 
application materials.
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    \26\ See Security-Based SDR Service Disclosure Document, Ex. 
V.2; see also Swap Data Repository Rulebook, Security-Based Swap 
Data Reporting Annex, Ex. HH.2, sec. 4.1.
    \27\ See id.
    \28\ See id.
    \29\ See Form SDR, Application Letter from Trabue Bland, 
President, ICE Trade Vault, dated Mar. 10, 2021, at 1, 2.
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A. Organization and Governance

    ICE Trade Vault is a Delaware limited liability company, and is a 
wholly owned subsidiary of Intercontinental Exchange Holdings, Inc., 
which, in turn, is a wholly owned subsidiary of Intercontinental 
Exchange, Inc. (``ICE''), a publicly traded company.\30\ As a general 
matter, the number of directors and composition of the Board of 
Directors (``ITV Board'') shall be determined by ICE, as the sole 
member of ICE Trade Vault.\31\ Currently, the ITV Board consists of at 
least three directors, all of whom are appointed by ICE.\32\ The ITV 
Board is composed of individuals selected from the following groups: 
members of senior management or the Board of Directors of ICE, 
independents and employees of ICE Trade Vault's users with derivatives 
industry experience.\33\ ICE considers several factors in determining 
the composition of the ITV Board, including whether directors, both 
individually and collectively, possess the required integrity, 
experience, judgment, commitment, skills and expertise to exercise 
their obligations of oversight and guidance over an SDR and a swap data 
repository regulated by the CFTC.\34\ Additionally, in accordance with 
Exchange Act Rule 13n-4(c)(2), ICE Trade Vault provides users with the

[[Page 14970]]

opportunity to participate in the process for nominating the ICE Trade 
Vault independent director and with the right to petition for 
alternative candidates.\35\ At least one director will at all times be 
``independent'' in accordance with applicable provisions of the New 
York Stock Exchange Listed Company Manual.\36\ Two officers of ICE 
Trade Vault's parent, ICE, currently serve as the non-independent 
directors.\37\ ICE shall periodically review the composition of the ITV 
Board to assure that the level of representation of directors is 
appropriate for the interests of these constituencies in ICE Trade 
Vault.\38\
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    \30\ See Security-Based SDR Service Disclosure Document, Ex. 
V.2, sec. 9. ICE is a holding company whose subsidiaries operate 
exchanges, clearing houses, and data services for financial and 
commodity markets. ICE operates global marketplaces for trading and 
clearing a broad array of securities and derivatives contracts 
across major asset classes, including energy and agricultural 
commodities, interest rates, equities, equity derivatives, credit 
derivatives, bonds, and currencies.
    \31\ See Board of Directors Governance Principles, Ex. D.3.
    \32\ See Security-Based SDR Service Disclosure Document, Ex. 
V.2, sec. 9; see also Swap Data Repository Rulebook, Security-Based 
Swap Data Reporting Annex, Ex. HH.2, sec. 2.1; Board of Directors 
Governance Principles, Ex. D.3.
    \33\ See Board of Directors Governance Principles, Ex. D.3.
    \34\ See Security-Based SDR Service Disclosure Document, Ex. 
V.2, sec. 9; see also Swap Data Repository Rulebook, Security-Based 
Swap Data Reporting Annex, Ex. HH.2, sec. 2.1; Board of Directors 
Governance Principles, Ex. D.3.
    \35\ See id.
    \36\ See id.
    \37\ See id.
    \38\ See Board of Directors Governance Principles, Ex. D.3.
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    The ITV Board oversees all risks relating to ICE Trade Vault.\39\ 
The powers and authority of the ITV Board include the ability to: (i) 
Designate and authorize specific appointed officers to act on behalf of 
the ITV Board; (ii) fix, determine and levy all fees, when necessary; 
(iii) prepare and amend the Rulebook; (iv) act in emergencies; and (v) 
delegate any such power to the appropriate party.\40\ The ITV Board 
oversees ICE Trade Vault's SDR functions as well as other regulated 
services that ICE Trade Vault provides, such as the swap data 
repository registered with the CFTC.\41\
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    \39\ See Security-Based SDR Service Disclosure Document, Ex. 
V.2, sec. 9; see also Swap Data Repository Rulebook, Security-Based 
Swap Data Reporting Annex, Ex. HH.2, sec. 2.1; Board of Directors 
Governance Principles, Ex. D.3.
    \40\ See id.
    \41\ See id.
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    ICE Trade Vault's Chief Compliance Officer (``CCO'') is appointed 
by the ITV Board and reports directly to the President of ICE Trade 
Vault.\42\ The ITV Board approves the compensation of the CCO and meets 
with the CCO at least annually.\43\ The CCO also works directly with 
the ITV Board in certain instances, for example, when resolving 
conflicts of interest.\44\ The CCO has supervisory authority over all 
staff acting at the direction of the CCO and his or her 
responsibilities include, but are not limited to: (i) preparing and 
signing a compliance report with a financial report that conforms to 
the requirements of Exchange Act Rule 13n-11(f), which shall be 
provided to the SEC annually in accordance with Exchange Act Rule 13n-
11(d); (ii) reviewing the compliance of ICE Trace Vault with respect to 
the requirements and core principles described in Section 13(n) of the 
Exchange Act and the applicable SEC regulations; and (iii) establishing 
and administering written policies and procedures reasonably designed 
to prevent violations of the Exchange Act, the core principles 
applicable to SDRs and applicable law.\45\
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    \42\ See Security-Based SDR Service Disclosure Document, Ex. 
V.2, sec. 9; see also Swap Data Repository Rulebook, Security-Based 
Swap Data Reporting Annex, Ex. HH.2, sec. 2.1.1.
    \43\ See id.
    \44\ See id.
    \45\ See id.
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    ICE Trade Vault directors, officers and employees must comply with 
the ICE Global Code of Business Conduct, which describes policies for, 
among other things, handling conflicts of interest, prohibiting insider 
trading, complying with the law and document management and retention 
requirements.\46\ In addition, ICE Trade Vault prohibits any member of 
the ITV Board or of any board committee which has authority to take 
action for and in the name of ICE Trade Vault from knowingly 
participating in such body's deliberations or voting in any matter 
involving a named party in interest (a person or entity that is 
identified by name as a subject of any matter being considered by the 
ITV Board or a board committee) where such member (i) is a named party 
in interest, (ii) is an employer, employee, or guarantor of a named 
party in interest or an affiliate thereof, (iii) has a family 
relationship (the person's spouse, former spouse, parent, stepparent, 
child, stepchild, sibling, stepbrother, stepsister, grandparent, 
grandchild, uncle, aunt, nephew, niece or in-law) with a named party in 
interest or (iv) has any other significant, ongoing business 
relationship with a named party in interest or an affiliate 
thereof.\47\ The CCO shall determine whether any member of the 
deliberating body is subject to a prohibition under its conflicts of 
interest policies.\48\
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    \46\ See ICE Global Code of Business Conduct, Ex. D.4.
    \47\ See Swap Data Repository Rulebook, Security-Based Swap Data 
Reporting Annex, Ex. HH.1, sec. 2.10.2.
    \48\ See Swap Data Repository Rulebook, Security-Based Swap Data 
Reporting Annex, Ex. HH.2, sec. 2.10.4.
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B. Access and Information Security

    ICE Trade Vault represents that it provides access to its SDR 
service on a fair, open and not unreasonably discriminatory basis.\49\ 
According to ICE Trade Vault, access to and usage of its service is 
available to all market participants that validly engage in SBS 
transactions and to all market venues from which data can be submitted 
to ICE Trade Vault, and do not require the use of any other ancillary 
service offered by ICE Trade Vault.\50\ ICE Trade Vault represents that 
for security reasons, access to the ICE Trade Vault system is strictly 
limited to users (entities with valid permissions and security 
access).\51\ Users will only have access to (i) data they reported, 
(ii) data that pertains to a SBS to which they are a counterparty; 
(iii) data that pertains to a SBS for which the user is an execution 
agent, platform, registered broker-dealer or a third-party reporter; 
and (iv) data that ICE Trade Vault is required to make publicly 
available.\52\
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    \49\ See Security-Based SDR Service Disclosure Document, Ex. 
V.2, sec. 1; see also Swap Data Repository Rulebook, Security-Based 
Swap Data Reporting Annex, Ex. HH.2, sec. 3.1.
    \50\ See id.; see also SDR Adopting Release, 80 FR at 14451-52 
(Commission noting that confirmation and dispute resolution services 
or functions ``are ancillary. . . . [and are] not `core' SDR 
services, which would cause a person providing such core services to 
meet the definition of an SDR, and thus, require the person to 
register with the Commission as an SDR. However, SDRs are required 
to perform these two services or functions, and thus, they are 
required ancillary services[.] . . . An SDR may delegate some of 
these required ancillary services to third party service providers, 
who do not need to register as SDRs to provide such services. The 
SDR will remain legally responsible for the third party service 
providers' activities relating to the required ancillary services 
and their compliance with applicable rules under the Exchange 
Act.'').
    \51\ See Security-Based SDR Service Disclosure Document, Ex. 
V.2, sec. 1; see also ICE Trade Vault User Agreement, Ex. U.2.
    \52\ See id.; see also Security-Based Swap Data Repository User 
Onboarding Process Guide, Ex. N.6.
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    According to ICE Trade Vault, access to its system is provided to 
parties that have a duly executed User Agreement in effect with ICE 
Trade Vault.\53\ When enrolling with ICE Trade Vault, users must 
designate an administrator with respect to the user's use of ICE Trade 
Vault to ensure ICE Trade Vault access is granted by a trusted 
individual at the user's firm who is closest to and has the most 
knowledge of those in the firm who require access; the administrator 
will create, permission and maintain all user names and passwords for 
the user.\54\ According to ICE Trade Vault, passwords must meet 
technical and procedural processes for information security and must 
include at least three of the following elements: uppercase letters, 
lowercase letters, numbers, and special characters.\55\
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    \53\ See Security-Based SDR Service Disclosure Document, Ex. 
V.2, sec. 1; Swap Data Repository Rulebook, Security-Based Swap Data 
Reporting Annex, Ex. HH.2, sec. 3.1.1; see also ICE Trade Vault User 
Agreement, Ex. U.2.
    \54\ See Security-Based SDR Service Disclosure Document, Ex. 
V.2, sec. 1; Swap Data Repository Rulebook, Security-Based Swap Data 
Reporting Annex, Ex. HH.2, sec. 3.1.1.
    \55\ See Security-Based SDR Service Disclosure Document, Ex. 
V.2, sec. 1.
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    ICE Trade Vault may decline the request of an applicant to become a 
user

[[Page 14971]]

of its system if such denial is required in order to comply with 
applicable law (e.g., to comply with sanctions administered and 
enforced by the Office of Foreign Assets Control of the U.S. Department 
of the Treasury).\56\ If an applicant is denied by ICE Trade Vault for 
any other reason, the applicant will be entitled to notice and an 
opportunity to contest such determination in accordance with the 
Rulebook.\57\ If the denial of an application is reversed, the 
applicant will be granted access to ICE Trade Vault promptly following 
completion of onboarding requirements.\58\ In addition, ICE Trade Vault 
may revoke a user's access to ICE Trade Vault following a determination 
that (i) the user has violated any provision of the User Agreement 
(including by failing to pay any fees when due), the Rulebook, 
applicable law or any ICE Trade Vault policies and procedures related 
to its SDR service or (ii) such action is necessary or appropriate in 
light of ICE Trade Vault's regulatory responsibilities or for the 
protection of the integrity of its system (each, an ``Access 
Determination'').\59\ Access Determinations shall be made by the CCO 
based on the information gathered during the inquiry, if any, and 
reviewed by the President and General Counsel of ICE Trade Vault within 
5 business days of such determination prior to implementing any 
revocation of access.\60\ Notwithstanding the foregoing, the CCO's 
Access Determination may be implemented immediately without prior 
review by the President or General Counsel (``Immediate Revocation'') 
where the CCO determines such revocation is necessary for the 
protection of the integrity of the ICE Trade Vault system or to fulfill 
ICE Trade Vault's regulatory responsibilities.\61\ If (i) an Immediate 
Revocation occurs or (ii) the President and General Counsel conclude 
that an Access Determination is appropriate and in compliance with 
applicable law, the CCO shall, within 1 business day, provide notice by 
email to the user to which the Access Determination applies, including 
in such notice the specific reasons for the determination.\62\ If the 
President and General Counsel conclude that limitation or revocation of 
access pursuant to an Access Determination made by the CCO would 
constitute unreasonable discrimination, the President and General 
Counsel shall take such actions as are necessary to maintain or restore 
access to ICE Trade Vault, its services or SDR information, as 
applicable.\63\
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    \56\ See Security-Based SDR Service Disclosure Document, Ex. 
V.2, sec. 1; Swap Data Repository Rulebook, Security-Based Swap Data 
Reporting Annex, Ex. HH.2, sec. 3.1.2.
    \57\ See id.
    \58\ See id.
    \59\ See Swap Data Repository Rulebook, Security-Based Swap Data 
Reporting Annex, Ex. HH.2, sec. 3.3.
    \60\ See id.
    \61\ See id.
    \62\ See id.
    \63\ See id.; see also Swap Data Repository Rulebook, Security-
Based Swap Data Reporting Annex, Ex. HH.2, sec. 3.4 (review and 
dispute of revocation of access), 3.5 (final access determinations), 
3.6 (implementation of a revocation of access).
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    ICE Trade Vault states that it recognizes its responsibility to 
ensure data confidentiality and dedicates significant resources to 
information security to prevent the misappropriation or misuse of 
confidential information and any other SDR information not subject to 
public dissemination (i.e., the information identified in Exchange Act 
Rule 902(c)) and that it does not, as a condition of accepting SBS data 
from users, require the waiver of any privacy rights by such users.\64\ 
ICE Trade Vault states that it maintains a security policy that sets 
forth technical and procedural processes for information security and 
contains an extensive list of policies and means of implementation and 
that it uses a multi-tiered firewall deployment to provide network 
segmentation and access control to its services.\65\ ICE Trade Vault 
states that its application servers are housed in a demilitarized 
network zone behind external firewalls and that a second set of 
internal firewalls further isolate ICE Trade Vault database systems, 
while an intrusion system provides added security to detect any threats 
and network sensors analyze all internet and private line traffic for 
malicious patterns.\66\
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    \64\ See Security-Based SDR Service Disclosure Document, Ex. 
V.2, sec.4.
    \65\ See id.
    \66\ See id.
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    ICE Trade Vault states that tactical controls are regularly 
examined and tested by multiple tiers of internal and external test 
groups, auditors and independently contracted third-party security 
testing firms.\67\ According to ICE Trade Vault, in addition, the 
security policy imposes an accountable and standard set of best 
practices to protect the confidentiality of users' SDR information, 
including confidential information and other SDR information not 
subject to public dissemination.\68\ ICE Trade Vault states that it 
completes an audit for adherence to the data security policies on at 
least an annual basis; the audit tests the following applicable 
controls, among others, to ICE Trade Vault systems: (i) Logical access 
controls; (ii) logical access to databases; (iii) physical and 
environmental controls; (iv) backup procedures; and (v) change 
management.\69\ ICE Trade Vault states that it has a robust information 
security program and maintains effective and current policies and 
procedures to ensure employee compliance; ICE Trade Vault's information 
security program includes: asset management; physical and environmental 
security; authorization, authentication and access control management; 
internet, email and data policy management, record retention 
management; and accountability, compliance and auditability.\70\ ICE 
Trade Vault states that it performs network scans and penetration tests 
regularly to ensure the information security systems are performing as 
designed.\71\
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    \67\ See id.
    \68\ See id.
    \69\ See id.
    \70\ See id.
    \71\ See id.
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    ICE Trade Vault maintains and will continue to maintain a robust 
emergency and business-continuity and disaster recovery plan 
(``Business Continuity Plan'') that allows for timely resumption of key 
business processes and operations following unplanned interruptions, 
unavailability of staff, inaccessibility of facilities, and disruption 
or disastrous loss to one or more of ICE Trade Vault's facilities or 
services.\72\ In accordance with the Business Continuity Plan, all 
production system hardware and software is replicated in near real-time 
at a geographical- and vendor-diverse disaster recovery site to avoid 
any loss of data.\73\ ICE Trade Vault shall notify the SEC as soon as 
it is reasonably practicable of ICE Trade Vault's invocation of its 
emergency authority, any material business disruption, or any threat 
that actually or potentially jeopardizes automated system capacity, 
integrity, resiliency, availability or security.\74\
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    \72\ See id.
    \73\ See id.
    \74\ See id.; see also Swap Data Repository Rulebook, Security-
Based Swap Data Reporting Annex, Ex. HH.2, sec. 2.8.3 (``ICE Trade 
Vault will notify the SEC as soon as practicable of any action 
taken, or proposed to be taken (time permitting), pursuant to this 
Rule 2.8.3. The decision-making process with respect to, and the 
reasons for, any such action will be recorded in writing. ICE Trade 
Vault will also notify Users via email as soon as practicable of any 
action taken (time permitting), or proposed to be taken, pursuant to 
this Rule 2.8.3.'').
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C. Acceptance and Use of SBS Data

    ICE Trade Vault states that it will accept data in respect of all 
SBS trades

[[Page 14972]]

in the credit derivatives asset class and promptly records such data 
upon receipt.\75\ ICE Trade Vault requires all users to report complete 
and accurate trade information and to review and resolve all error 
messages generated by the ICE Trade Vault system with respect to the 
data they have submitted.\76\ According to ICE Trade Vault, access to 
SDR information by ICE Trade Vault employees and others performing 
functions on behalf of ICE Trade Vault is strictly limited to those 
with the direct responsibility for supporting the ICE Trade Vault 
system, users and regulators.\77\ ICE Trade Vault employees and others 
performing functions on behalf of ICE Trade Vault are prohibited from 
using SDR information other than in the performance of their job 
responsibilities.\78\ In accordance with applicable SEC regulations, 
ICE Trade Vault may disclose, for commercial purposes, certain SDR 
information; any such disclosures shall be made solely on an aggregated 
basis in a manner that ensures that the disclosed SDR information 
cannot reasonably be attributed to individual transactions or 
users.\79\
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    \75\ See Swap Data Repository Rulebook, Security-Based Swap Data 
Reporting Annex, Ex. HH.2, sec. 4.1.
    \76\ See Swap Data Repository Rulebook, Security-Based Swap Data 
Reporting Annex, Ex. HH.2, sec. 4.2.1.
    \77\ See Swap Data Repository Rulebook, Security-Based Swap Data 
Reporting Annex, Ex. HH.2, sec. 3.8; Security-Based SDR Service 
Disclosure Document, Ex. V.2, sec. 5.
    \78\ See id.
    \79\ See id.
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    ICE Trade Vault states that, in accordance with Exchange Act Rule 
13n-5(b)(5), it maintains internal policies and procedures in place to 
ensure its recording process and operation does not invalidate or 
modify the terms of trade information, and that it regularly audits 
these controls to ensure the prevention of unauthorized and unsolicited 
changes to SDR information maintained in the ICE Trade Vault system 
through protections related to the processing of SBS.\80\
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    \80\ See Swap Data Repository Rulebook, Security-Based Swap Data 
Reporting Annex, Ex. HH.2, sec. 4.5.
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    Additionally, ICE Trade Vault states that it reasonably relies on 
the accuracy of trade data submitted by users and that all users must 
complete a conformance test to validate data submission integrity prior 
to ICE Trade Vault's acceptance of actual SBS data and must immediately 
inform ICE Trade Vault of any system or technical issues that may 
affect the accuracy of SBS data transmissions.\81\ ICE Trade Vault 
states that users are responsible for the timely resolution of trade 
record errors and disputes.\82\ ICE Trade Vault provides users 
electronic methods to extract SDR information for trade data 
reconciliation.\83\ Disputes involving clearing transactions shall be 
resolved in accordance with the clearing agency's rules and applicable 
law.\84\ For an alpha SBS executed on a platform and reported by a 
platform user, disputes must be resolved in accordance with the 
platform's rules and applicable law.\85\ For SBS that are reported by a 
user that is neither a platform nor a clearing agency, counterparties 
shall resolve disputes with respect to SDR information in accordance 
with the counterparties' master trading agreement and applicable 
law.\86\ Users that are non-reporting sides may verify or dispute the 
accuracy of trade information that has been submitted by a reporting 
side to ICE Trade Vault, where the non-reporting side is identified as 
the counterparty, by sending a verification message indicating that it 
verifies or disputes such trade information.\87\ If the reporting side 
for a SBS transaction discovers an error in the information reported 
with respect to a SBS, or receives notification from a counterparty of 
an error, the reporting side shall promptly submit to ICE Trade Vault 
an amended report that corrects such error.\88\ ICE Trade Vault will 
disseminate a corrected transaction report in instances where the 
initial report included erroneous primary trade information.\89\ Users 
are required to notify ICE Trade Vault promptly of disputed trade data 
by utilizing the ``Dispute'' functionality; when a User ``disputes'' a 
trade, the status of the trade will be recorded as ``Disputed,'' and 
notice of the dispute will be sent promptly to the other party to the 
trade; the trade record may then be amended or canceled upon mutual 
agreement of the parties; the status of the trade will remain 
``Disputed'' until either party to the trade provides evidence 
satisfactory to ICE Trade Vault that the dispute has been resolved.\90\ 
ICE Trade Vault will provide regulators with reports identifying the 
SDR information that is deemed disputed.\91\
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    \81\ See Security-Based SDR Service Disclosure Document, Ex. 
V.2, sec. 6.
    \82\ See id.; see also Swap Data Repository Rulebook, Security-
Based Swap Data Reporting Annex, Ex. HH.2, sec. 4.6 and 4.7.
    \83\ See Security-Based SDR Service Disclosure Document, Ex. 
V.2, sec. 6; Swap Data Repository Rulebook, Security-Based Swap Data 
Reporting Annex, Ex. HH.2, sec. 4.6.
    \84\ See Security-Based SDR Service Disclosure Document, Ex. 
V.2, sec. 6; Swap Data Repository Rulebook, Security-Based Swap Data 
Reporting Annex, Ex. HH.2, sec. 4.2.4 and 4.7.
    \85\ See id.
    \86\ See Security-Based SDR Service Disclosure Document, Ex. 
V.2, sec. 6; Swap Data Repository Rulebook, Security-Based Swap Data 
Reporting Annex, Ex. HH.2, sec. 4.7.
    \87\ See Security-Based SDR Service Disclosure Document, Ex. 
V.2, sec. 6; see also Swap Data Repository Rulebook, Security-Based 
Swap Data Reporting Annex, Ex. HH.2, sec. 4.2.3.
    \88\ See Security-Based SDR Service Disclosure Document, Ex. 
V.2, sec. 6; see also Swap Data Repository Rulebook, Security-Based 
Swap Data Reporting Annex, Ex. HH.2, sec. 4.2.2.
    \89\ See id.
    \90\ See id.; see also Swap Data Repository Rulebook, Security-
Based Swap Data Reporting Annex, Ex. HH.2, sec. 4.7.
    \91\ See Swap Data Repository Rulebook, Security-Based Swap Data 
Reporting Annex, Ex. HH.2, sec. 4.7; see also Security-Based SDR 
Service Disclosure Document, Ex. V.2, sec. 6.
---------------------------------------------------------------------------

D. Fees

    According to ICE Trade Vault, all fees imposed by ICE Trade Vault 
in connection with the reporting of swap data shall be equitable and 
established in a uniform and non-discriminatory manner as determined 
from time-to-time by ICE Trade Vault.\92\ In addition, ICE Trade Vault 
represents that all fees will be commensurate to ICE Trade Vault's 
costs for providing its SDR service. ICE Trade Vault states it will 
only assess fees as noted in its fee schedule, and there will be no 
``hidden fees'' associated with ICE Trade Vault Service.\93\
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    \92\ See Security-Based SDR Service Disclosure Document, Ex. 
V.2, sec.8; see also Swap Data Repository Rulebook, Security-Based 
Swap Data Reporting Annex, Ex. HH.2, sec. 2.7 (``In accordance with 
Exchange Act Rule 13n-4(c), any dues, fees or other charges imposed 
by, and any discounts or rebates offered by, ICE Trade Vault in 
connection with the ICE SBSDR Service shall be fair and reasonable 
and not unreasonably discriminatory. ICE Trade Vault dues, fees, 
other charges, discounts, or rebates shall be applied consistently 
across all similarly situated Users.'')
    \93\ See ICE Trade Vault Security-Based Swap Data Repository 
Service and Pricing Schedule, Ex. M.2.
---------------------------------------------------------------------------

    The most current pricing schedule is made available via the ICE 
Trade Vault website. ICE Trade Vault applies fees according to the type 
of SDR user accessing ICE Trade Vault: counterparty, clearing agency, 
execution agent and third party reporter.\94\ According to ICE Trade 
Vault, in the case of the execution agent versus the third party 
reporter, the application of fees is differentiated based upon the type 
of service provided in each case.\95\ According to ICE Trade Vault, an 
execution agent is directly involved with trade execution; as such, it 
is charged directly for the fees associated with the SDR just as a 
counterparty, whereas the underlying

[[Page 14973]]

funds are not charged a fee.\96\ However, the third party reporter is 
not involved with the trade execution and simply provides a service to 
counterparties who have an obligation to report; therefore, according 
to ICE Trade Vault, they are assessed a fee for each of those reporting 
parties on behalf of whom they are reporting the trades.\97\ According 
to ICE Trade Vault, as a result, the third party reporter is able to 
pass the cost of its service to each of its counterparties utilizing 
third party reporting; this allows for the cost of ICE Trade Vault to 
be fair and equal for reporting parties whether they choose to report 
directly to ICE Trade Vault or via a third party reporter.\98\ 
Additionally, according to ICE Trade Vault, clearing agency fees vary 
from other users due to the unique requirements necessary to support 
this type of customer; ICE Trade Vault must build out a separate custom 
interface(s) and purchase and maintain additional hardware necessary to 
support the high volume of trades submitted to the SDR by the clearing 
agency; as a result, the minimum fee outlined in the ICE Trade Vault 
pricing schedule reflects the costs incurred by ICE Trade Vault to 
purchase the necessary hardware and software and the cost to build out 
the SDR system; in addition, the clearing agency fees also reflect the 
additional ongoing support and maintenance costs for this type of high 
volume user.\99\ According to ICE Trade Vault, all fees within the 
schedule, including the monthly per $1MM notional, are cost based to 
ensure ICE Trade Vault may operate with a minimum margin while allowing 
for a reasonable cost to its customers, given the expected volume of 
trades it expects to receive as an SDR.\100\
---------------------------------------------------------------------------

    \94\ See Dues, Fees and Charges, Ex. M.1.
    \95\ See id.
    \96\ See id.
    \97\ See id.
    \98\ See id.
    \99\ See id.
    \100\ See id.
---------------------------------------------------------------------------

    ICE Trade Vault will assess a Repository Fee upon its acceptance of 
any trade message for an SBS transaction.\101\ For both cleared and 
uncleared/bilateral transactions, the Repository Fee rates will be 
$1.35 per $1/MM Notional. For cleared SBS, the Repository Fee will be 
charged to the clearing agency that cleared the SBS and, for uncleared 
or bilateral SBS transactions, the fee will be charged to the user 
which submitted the record as a counterparty or execution agent.
---------------------------------------------------------------------------

    \101\ See ICE Trade Vault Security-Based Swap Data Repository 
Service and Pricing Schedule, Ex. M.2.
---------------------------------------------------------------------------

    For transactions submitted directly by a clearing agency user, 
clearing agency users will have a minimum monthly invoice per user of 
$10,000, and the invoice will be the greater of (i) the total of all 
Repository Fees incurred by user or (ii) $10,000.\102\ If a clearing 
agency user does not have any submittals in a given month but does have 
open positions, the $10,000 will be charged as a minimum maintenance 
fee in the place of any Repository Fees. If a clearing agency user does 
not have any submittals in a given month and does not have any open 
positions then no fees will be charged.
---------------------------------------------------------------------------

    \102\ See id.
---------------------------------------------------------------------------

    For transactions submitted directly by a counterparty user, the 
minimum monthly invoice per user will be $375.\103\ In a given month, 
each user represented as a counterparty shall be invoiced the greater 
of (i) the total of all Repository Fees incurred by user or (ii) $375. 
If the user does not have any submittals in a given month but does have 
open positions on SBS in the ICE Trade Vault Service, the $375 will be 
charged as a minimum maintenance fee in the place of any Repository 
Fees. If the user does not have any submittals in a given month and 
does not have any open positions then no fees will be charged.
---------------------------------------------------------------------------

    \103\ See id.
---------------------------------------------------------------------------

    When an execution agent submits an SBS transaction on behalf of the 
counterparty and is listed as the execution agent, the execution agent 
will be charged the Repository Fee (not the underlying funds, accounts 
or other principals).\104\ When an execution agent submits an SBS 
transaction where the execution agent is acting as the counterparty, it 
will be charged the Repository Fee. The minimum monthly invoice for an 
execution agent will be a total of $375, including all transactions in 
which the executing agent is acting on behalf of a counterparty or 
acting as its own counterparty.
---------------------------------------------------------------------------

    \104\ See id.
---------------------------------------------------------------------------

    For transactions submitted by third party reporters, third party 
reporters will only be charged a Repository Fee for those transactions 
they report on behalf of non-users of ICE Trade Vault.\105\ Each non-
user on whose behalf the third party reporter submits the transaction 
will have an invoice created as if it were a user, and will be invoiced 
the greater of (i) the total of all Repository Fees incurred by non-
user or (ii) $200. If the non-user does not have any submittals by the 
third party reporter in a given month but does have open positions, 
$200 will be charged as a minimum maintenance fee in the place of any 
Repository Fees. If the non-user does not have any submittals by the 
third party reporter in a given month and does not have any open 
positions then no fees will be charged. The details regarding the 
Repository Fees incurred or the minimum monthly amount for each non-
user will be detailed on the third-party reporter's invoice and summed 
across all non-users to determine the total amount charged to any one 
third party reporter. ICE Trade Vault will solely provide invoices to 
the third party reporter for trades reported on behalf of the non-user 
and will not issue an invoice directly to any non-users.
---------------------------------------------------------------------------

    \105\ See id.
---------------------------------------------------------------------------

E. Recordkeeping

    According to ICE Trade Vault, users access ICE Trade Vault through 
a web-based front-end that requires user systems to (a) satisfy the 
minimum computing system and web browser requirements specified in the 
ICE Trade Vault Technical Guides; (b) support HTTP 1.1 and 128-bit or 
stronger SSL data encryption; and (c) the most recent version of 
Chrome.\106\ Trade information submitted to ICE Trade Vault is saved in 
a non-rewriteable, non-erasable format, to a redundant, local database 
and a remote disaster recovery database in near real-time; the database 
of trade information submitted to ICE Trade Vault is backed-up to tape 
daily with tapes moved offsite weekly.\107\ Counterparties' individual 
trade data records remain available to users at no charge for online 
access through ICE Trade Vault from the date of submission until five 
years after expiration of the trade (last day of delivery or settlement 
as defined for each product).\108\ After the initial five-year period, 
counterparties' trade data will be stored off-line and remain available 
upon a three-day advance request to ICE Trade Vault, until ten years 
from the termination date.\109\ According to ICE Trade Vault, users 
will retain unimpaired access to their online and archived trade 
data.\110\ However, if a user or its regulator requests or requires 
archived trade information from ICE Trade Vault to be delivered other 
than via the web-based front-end or the application programming 
interface (``API'') or in a non-standard format, such user may be 
required, in

[[Page 14974]]

accordance with the ICE Trade Vault schedule of fees and charges, to 
reimburse ICE Trade Vault for its reasonable expenses in producing data 
in response to such request or requirement as such expenses are 
incurred.\111\ Similarly, ICE Trade Vault may require a user to pay all 
reasonable expenses associated with producing records relating to its 
transactions pursuant to a court order or other legal process, as those 
expenses are incurred by ICE Trade Vault, whether such production is 
required at the instance of such user or at the instance of another 
party with authority to compel ICE Trade Vault to produce such 
records.\112\
---------------------------------------------------------------------------

    \106\ See Security-Based SDR Service Disclosure Document, Ex. 
V.2, sec. 2; see also Swap Data Repository Rulebook, Security-Based 
Swap Data Reporting Annex, Ex. HH.2, sec. 3.7.
    \107\ See Swap Data Repository Rulebook, Security-Based Swap 
Data Reporting Annex, Ex. HH.2, sec. 7.1; see also Security-Based 
SDR Service Disclosure Document, Ex. V.2, sec. 3.
    \108\ See Security-Based SDR Service Disclosure Document, Ex. 
V.2, sec. 3.
    \109\ See Security-Based SDR Service Disclosure Document, Ex. 
V.2, sec. 3.
    \110\ See id.
    \111\ See id.; see also Swap Data Repository Rulebook, Security-
Based Swap Data Reporting Annex, Ex. HH.2, sec. 7.1.
    \112\ See id.
---------------------------------------------------------------------------

F. Disclosure

    ICE Trade Vault publishes a disclosure document to provide a 
summary of information regarding its service offerings and the SBS data 
it maintains.\113\ Specifically, the disclosure document sets forth a 
description of the following: (i) criteria for access to the ICE Trade 
Vault service and SBS data; (ii) criteria for connection and linking to 
ICE Trade Vault; (iii) policies and procedures to safeguard SBS data 
and operational reliability; (iv) policies and procedures to protect 
the privacy of SBS data; (v) policies and procedures on ICE Trade Vault 
commercial and non-commercial use of SBS data; (vi) ICE Trade Vault 
data accuracy and dispute resolution procedures; (vii) ICE Trade Vault 
services; (viii) ICE Trade Vault pricing; and (ix) ICE Trade Vault 
governance arrangements.\114\
---------------------------------------------------------------------------

    \113\ See Security-Based SDR Service Disclosure Document, Ex. 
V.2.
    \114\ See id.
---------------------------------------------------------------------------

G. Regulatory Reporting and Public Dissemination

    As a registered SDR, ICE Trade Vault would carry out an important 
role in the regulatory reporting and public dissemination of SBS 
transactions. As noted above, ICE Trade Vault has stated that it 
intends to rely on the no-action statement included in the ANE Adopting 
Release for the period set forth in the ANE Adopting Release with 
respect to the credit derivatives asset class.\115\ Therefore, ICE 
Trade Vault does not need to include materials in its application 
explaining how it would comply with the provisions of the SBS Reporting 
Rules noted in the no-action statement.\116\ Instead, ICE Trade Vault 
may rely on its discussion about how it complies with comparable CFTC 
requirements pertaining to regulatory reporting and public 
dissemination of swap transactions.
---------------------------------------------------------------------------

    \115\ See supra note 29 and accompanying text.
    \116\ However, the ICE Trade Vault application includes 
provisions explaining how it would require users to identify SBS, as 
required by Rule 901(c)(1) of Regulation SBSR. See Security-Based 
SDR Service Disclosure Document, Ex. N.5 (fields 146-148). The ICE 
Trade Vault application also includes a provision explaining how it 
would comply with a condition to the no-action statement included in 
the ANE Adopting Release. See Security-Based SDR Service Disclosure 
Document, Ex. N.4, sec. 3.5 (providing, in the case of a credit 
security-based swap, for dissemination of a capped notional size of 
$5 million if the true notional size of the transaction is $5 
million or greater).
---------------------------------------------------------------------------

IV. Solicitation of Comments

    Interested persons are invited to submit written data, views, and 
arguments concerning ICE Trade Vault's Form SDR, including whether ICE 
Trade Vault has satisfied the requirements for registration as an SDR 
and as a SIP. Commenters are requested, to the extent possible, to 
provide empirical data and other factual support for their views. 
Comments may be submitted by any of the following methods:

Electronic comments

     Use the Commission's internet comment form (http://www.sec.gov/rules/proposed.shtml); or
     Send an email to rule-comments@sec.gov. Please include 
File Number SBSDR-2021-01 on the subject line.

Paper comments

     Send paper comments to Secretary, Securities and Exchange 
Commission, 100 F Street NE, Washington, DC 20549-1090. All submissions 
should refer to File Number SBSDR-2021-01.
    To help the Commission process and review your comments more 
efficiently, please use only one method of submission. The Commission 
will post all comments on the Commission's internet website (http://www.sec.gov/rules/other.shtml).
    Copies of the Form SDR, all subsequent amendments, all written 
statements with respect to the Form SDR that are filed with the 
Commission, and all written communications relating to the Form SDR 
between the Commission and any person, other than those that may be 
withheld from the public in accordance with the provisions of 5 U.S.C. 
552, will be available for website viewing and printing in the 
Commission's Public Reference Section, 100 F Street, NE, Washington, DC 
20549, on official business days between the hours of 10:00 a.m. and 
3:00 p.m.
    All comments received will be posted without change. Persons 
submitting comments are cautioned that we do not redact or edit 
personal identifying information from comment submissions. You should 
submit only information that you wish to make available publicly. All 
submissions should refer to File Number SBSDR-2021-01 and should be 
submitted on or before April 9, 2021.

    By the Commission.
J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2021-05744 Filed 3-18-21; 8:45 am]
BILLING CODE 8011-01-P


