9 - Derivatives

COMPANION POLICY 91-507CP

TO MANITOBA SECURITIES COMMISSION RULE 91-507 

TRADE REPOSITORIES and DERIVATIVES DATA REPORTING

 

TABLE OF CONTENTS

 

PART                          TITLE

 

PART 1                       GENERAL COMMENTS

PART 2                       TRADE REPOSITORY DESIGNATION AND ONGOING REQUIREMENTS

PART 3                        DATA REPORTING

PART 4                       DATA DISSEMINATION AND ACCESS TO DATA

Part 5                       EXCLUSIONS

Part 6                       EXEMPTIONS

PART 7                       effective date

PART 1

GENERAL COMMENTS

 

Introduction

 

This companion policy (the "Policy") sets out the views of the Commission ("our" or "we") on various matters relating to Manitoba Securities Commission Rule 91-507 Trade Repositories and Derivatives Data Reporting (the "Rule") and related securities legislation.

 

The numbering of Parts, sections and subsections from Part 2 on in this Policy generally corresponds to the numbering in the Rule.  Any general guidance for a Part appears immediately after the Part’s name.  Any specific guidance on a section or subsection follows any general guidance.  If there is no guidance for a Part, section or subsection, the numbering in this Policy will skip to the next provision that does have guidance.

 

Unless defined in the Rule or this Policy, terms used in the Rule and in this Policy have the meaning given to them in securities legislation, including, for greater certainty, in National Instrument 14-101 Definitions and MSC Rule 14-501 Definitions.

 

Definitions and interpretation

 

1. (1) In this Policy,

 

"CPSS" means the Committee on Payment and Settlement Systems,

 

"FMI" means a financial market infrastructure, as described in the PFMI Report,

 

"Global LEI System" means the Global Legal Entity Identifier System,

 

"IOSCO" means the Technical Committee of the International Organization of Securities Commissions,

 

"LEI" means a legal entity identifier,

 

"LEI ROC" means the LEI Regulatory Oversight Committee,

 

"PFMI Report" means the April 2012 final report entitled Principles for financial market infrastructures published by CPSS and IOSCO, as amended from time to time,[1] and

 

"principle" means, unless the context otherwise indicates, a principle set out in the PFMI Report.

 

(2) A "life-cycle event" is defined in the Rule as an event that results in a change to derivatives data previously reported to a designated trade repository.  Where a life-cycle event occurs, the corresponding life-cycle event data must be reported under section 32 of the Rule by the end of the business day on which the life-cycle event occurs.  When reporting a life-cycle event, there is no obligation to re-report derivatives data that has not changed – only new data and changes to previously reported data need to be reported.  Examples of a life-cycle event would include

• a change to the termination date for the transaction,
• a change in the cash flows, payment frequency, currency, numbering convention, spread, benchmark, reference entity or rates originally reported,
• the availability of a legal entity identifier for a counterparty previously identified by name or by some other identifier,
• a corporate action affecting a security or securities on which the transaction is based (e.g., a merger, dividend, stock split, or bankruptcy),
• a change to the notional amount of a transaction including contractually agreed upon changes (e.g., amortization schedule),
• the exercise of a right or option that is an element of the expired transaction, and
• the satisfaction of a level, event, barrier or other condition contained in the original transaction.

 

(3) Paragraph (c) of the definition of "local counterparty" captures affiliates of parties mentioned in paragraph (a) of the "local counterparty" definition, provided that such party guarantees the liabilities of the affiliate.  It is our view that the guarantee must be for all or substantially all of the affiliate’s liabilities.

 

(4) The term "transaction" is defined in the Rule and used instead of the term "trade", as defined in the Act, in order to reflect the types of activities that require a unique transaction report, as opposed to the modification of an existing transaction report.  The primary difference between the two definitions is that unlike the term "transaction", the term "trade" includes material amendments and terminations.

 

A material amendment is not referred to in the definition of "transaction" but is required to be reported as a life-cycle event in connection with an existing transaction under section 32.  A termination is not referred to in the definition of "transaction", as the expiry or termination of a transaction would be reported to a trade repository as a life-cycle event without the requirement for a new transaction record.

 

In addition, unlike the definition of "trade", the definition of "transaction" includes a novation to a clearing agency.  Each transaction resulting from a novation of a bi-lateral transaction to a clearing agency is required to be reported as a separate, new transaction with reporting links to the original transaction.

 

(5) The term "valuation data" is defined in the Rule as data that reflects the current value of a transaction.  It is the Commission’s view that valuation data can be calculated based upon the use of an industry-accepted methodology such as mark-to-market or mark-to-model, or another valuation method that is in accordance with accounting principles and will result in a reasonable valuation of a transaction.[2] The valuation methodology should be consistent over the entire life of a transaction.

 

 

PART 2

TRADE REPOSITORY DESIGNATION AND ONGOING REQUIREMENTS

 

Part 2 contains rules for designation of a trade repository and ongoing requirements for a designated trade repository.  To obtain and maintain a designation as a trade repository, a person or entity must comply with these rules and requirements in addition to all of the terms and conditions in the designation order made by the Commission.  In order to comply with the reporting obligations contained in Part 3, counterparties must report to a designated trade repository.  While there is no prohibition on an undesignated trade repository operating in Manitoba, a counterparty that reports a transaction to an undesignated trade repository would not be in compliance with its reporting obligations under this Rule with respect to that transaction.

 

The legal entity that applies to be a designated trade repository will typically be the entity that operates the facility and collects and maintains records of completed transactions reported to the trade repository by other persons or companies.  In some cases, the applicant may operate more than one trade repository facility.  In such cases, the trade repository may file separate forms in respect of each trade repository facility, or it may choose to file one form to cover all of the different trade repository facilities.  If the latter alternative is chosen, the trade repository must clearly identify the facility to which the information or changes submitted under this Part apply.

 

Trade repository initial filing of information and designation

 

2. (1) In determining whether to designate an applicant as a trade repository under section 31.6 of the Act, it is anticipated that the Commission will consider a number of factors, including

 

• whether it is in the public interest to designate the applicant,

 

• the manner in which the trade repository proposes to comply with the Rule,

 

• whether the trade repository has meaningful representation on its governing body,

 

• whether the trade repository has sufficient financial and operational resources for the proper performance of its functions,

 

• whether the rules and procedures of the trade repository ensure that its business is conducted in an orderly manner that fosters both fair and efficient capital markets, and improves transparency in the derivatives market,

 

• whether the trade repository has policies and procedures to effectively identify and manage conflicts of interest arising from its operation or the services it provides,

 

• whether the requirements of the trade repository relating to access to its services are fair and reasonable,

 

• whether the trade repository’s process for setting fees is fair, transparent and appropriate,

 

• whether the trade repository’s fees are inequitably allocated among the participants, have the effect of creating barriers to access or place an undue burden on any participant or class of participants,

 

• the manner and process for the Commission and other applicable regulatory agencies to receive or access derivatives data, including the timing, type of reports, and any confidentiality restrictions,

 

• whether the trade repository has robust and comprehensive policies, procedures, processes and systems to ensure the security and confidentiality of derivatives data, and

 

• whether the trade repository has entered into a memorandum of understanding with its local securities regulator.

 

The Commission will examine whether the trade repository has been, or will be, in compliance with securities legislation.  This includes compliance with the Rule and any terms and conditions attached to the Commission’s designation order in respect of a designated trade repository.

 

A trade repository that is applying for designation must demonstrate that it has established, implemented, maintained and enforced appropriate written rules, policies and procedures that are in accordance with standards applicable to trade repositories.  We consider that these rules, policies and procedures include, but are not limited to, the principles and key considerations and explanatory notes applicable to trade repositories in the PFMI Report.  These principles are set out in the following chart, along with the corresponding sections of the Rule the interpretation of which we consider ought to be consistent with the principles:

 

 

 

 

Principle in the PFMI Report applicable to a trade repository	Relevant section(s) of the Rule
Principle 1: Legal Basis	Section 7 – Legal framework Section 17 – Rules (in part)
Principle 2: Governance	Section 8 – Governance Section 9 – Board of directors Section 10 – Management
Principle 3: Framework for the comprehensive management of risks	Section 19 – Comprehensive risk management framework Section 20 – General business risk (in part)
Principle 15: General business risk	Section 20 – General business risk
Principle 17: Operational risk	Section 21 – System and other operational risk requirements Section 22 – Data security and confidentiality Section 24 – Outsourcing
Principle 18: Access and participation requirements	Section 13 – Access to designated trade repository services Section 16 – Due process (in part) Section 17 – Rules (in part)
Principle 19: Tiered participation arrangements	No equivalent provisions in the Rule; however, the trade repository may be expected to observe or broadly observe the principle, where applicable.
Principle 20: FMI links	No equivalent provisions in the Rule; however, the trade repository may be expected to observe or broadly observe the principle, where applicable.
Principle 21: Efficiency and effectiveness	No equivalent provisions in the Rule; however, the trade repository may be expected to observe or broadly observe the principle, where applicable.
Principle 22: Communication procedures and standards	Section 15 – Communication policies, procedures and standards
Principle 23: Disclosure of rules, key procedures, and market data	Section 17 – Rules (in part)
Principle 24: Disclosure of market data by trade repositories	Sections in Part 4 – Data Dissemination and Access to Data

 

It is anticipated that the Commission will apply the principles in its oversight activities of designated trade repositories.  Therefore, in complying with the Rule, designated trade repositories will be expected to observe the principles.

 

The forms filed by an applicant or designated trade repository under the Rule will be kept confidential in accordance with the provisions of securities legislation.  The Commission is of the view that the forms generally contain proprietary financial, commercial and technical information, and that the cost and potential risks to the filers of disclosure outweigh the benefit of the principle requiring that forms be made available for public inspection.  However, the Commission would expect a designated trade repository to publicly disclose its responses to the CPSS-IOSCO consultative report entitled Disclosure framework for financial market infrastructures, which is a supplement to the PFMI Report.[3]  In addition, much of the information that will be included in the forms that are filed will be required to be made publicly available by a designated trade repository pursuant to the Rule or the terms and conditions of the designation order imposed by the Commission.

 

While Form 91-507F1 – Application for Designation and Trade Repository Information Statement and any amendments to it will be kept generally confidential, if the Commission considers that it is in the public interest to do so, it may require the applicant or designated trade repository to publicly disclose a summary of the information contained in such form, or amendments to it.

 

Notwithstanding the confidential nature of the forms, an applicant’s application itself (excluding forms) will be published for comment for a minimum period of 30 days.

 

Change in information

 

3. (1) Under subsection 3(1), a designated trade repository is required to file an amendment to the information provided in Form 91-507F1 at least 45 days prior to implementing a significant change.  The Commission considers a change to be significant when it could impact a designated trade repository, its users, participants, market participants, investors, or the capital markets (including derivatives markets and the markets for assets underlying a derivative).  The Commission would consider a significant change to include, but not be limited to,

 

•         a change in the structure of the designated trade repository, including procedures governing how derivatives data is collected and maintained (included in any back-up sites), that has or may have a direct impact on users in Manitoba,

 

•         a change to the services provided by the designated trade repository, or a change that affects the services provided, including the hours of operation, that has or may have a direct impact on users in Manitoba,

 

•         a change to means of access to the designated trade repository’s facility and its services, including changes to data formats or protocols, that has or may have a direct impact on users in Manitoba,

 

•         a change to the types of derivative asset classes or categories of derivatives that may be reported to the designated trade repository,

 

•         a change to the systems and technology used by the designated trade repository that collect, maintain and disseminate derivatives data, including matters affecting capacity,

 

•         a change to the governance of the designated trade repository, including changes to the structure of its board of directors or board committees and their related mandates,

 

•         a change in control of the designated trade repository,

 

•         a change in affiliates that provide key services or systems to, or on behalf of, the designated trade repository,

 

•         a change to outsourcing arrangements for key services or systems of the designated trade repository,

 

•         a change to fees or the fee structure of the designated trade repository,

 

•         a change in the designated trade repository’s policies and procedures relating to risk-management, including relating to business continuity and data security, that has or may have an impact on the designated trade repository’s provision of services to its participants,

 

•         the commencement of a new type of business activity, either directly or indirectly through an affiliate, and

 

•         a change in the location of the designated trade repository’s head office or primary place of business or the location where the main data servers or contingency sites are housed.

 

(2) The Commission generally considers a change in a designated trade repository’s fees or fee structure to be a significant change.  However, the Commission recognizes that designated trade repositories may frequently change their fees or fee structure and may need to implement fee changes within timeframes that are shorter than the 45-day notice period contemplated in subsection (1).  To facilitate this process, subsection 3(2) provides that a designated trade repository may provide information that describes the change to fees or fee structure in a shorter timeframe (at least 15 days before the expected implementation date of the change to fees or fee structure).  See section 12 of this Policy for guidance with respect to fee requirements applicable to designated trade repositories.

 

The Commission will make best efforts to review amendments to Form 91-507F1 filed in accordance with subsections 3(1) and 3(2) before the proposed date of implementation of the change.  However, where the changes are complex, raise regulatory concerns, or when additional information is required, the Commission’s review may exceed these timeframes.

 

(3) Subsection 3(3) sets out the filing requirements for changes to information provided in a filed Form 91-507F1 other than those described in subsections 3(1) or (2).  Such changes to information are not considered significant and include changes that:

 

•         would not have an impact on the designated trade repository’s structure or participants, or more broadly on market participants, investors or the capital markets; or

 

•         are administrative changes, such as

 

•         changes in the routine processes, policies, practices, or administration of the designated trade repository that would not impact participants,

 

•         changes due to standardization of terminology,

 

•         corrections of spelling or typographical errors,

 

•         changes to the types of designated trade repository participants in Manitoba,

 

•         necessary changes to conform to applicable regulatory or other legal requirements of Manitoba or Canada, and

 

•         minor system or technology changes that would not significantly impact the system or its capacity.

 

For the changes referred to in subsection 3(3), the Commission may review these filings to ascertain whether they have been categorized appropriately.  If the Commission disagrees with the categorization, the designated trade repository will be notified in writing.  Where the Commission determines that changes reported under subsection 3(3) are in fact significant changes under subsection 3(1), the designated trade repository will be required to file an amended Form 91-507F1 that will be subject to review by the Commission.

 

Ceasing to carry on business

 

6. (1) In addition to filing a completed Form 91-507F3 – Cessation of Operations Report for Trade Repository, a designated trade repository that intends to cease carrying on business in Manitoba as a designated trade repository must make an application to voluntarily surrender its designation to the Commission pursuant to securities legislation.  The Commission may accept the voluntary surrender subject to terms and conditions.[4]

 

Legal framework

 

7. (1) Designated trade repositories are required to have rules, policies, and procedures in place that provide a legal basis for their activities in all relevant jurisdictions, whether within Canada or any foreign jurisdiction, where they have activities.

 

Governance

8. Designated trade repositories are required to have in place governance arrangements that meet the minimum requirements and policy objectives set out in subsections 8(1) and 8(2).

 

(3) Under subsection 8(3), a designated trade repository is required to make the written governance arrangements required under subsections 8(1) and (2) available to the public on its website.  The Commission expects that this information will be posted on the trade repository’s publicly accessible website and that interested parties will be able to locate the information through a web search or through clearly identified links on the designated trade repository’s website.

 

Board of directors

 

9. The board of directors of a designated trade repository is subject to various requirements, such as requirements pertaining to board composition and conflicts of interest.  To the extent that a designated trade repository is not organized as a corporation, the requirements relating to the board of directors may be fulfilled by a body that performs functions that are equivalent to the functions of a board of directors.

 

(2) Paragraph 9(2)(a) requires individuals who comprise the board of directors of a designated trade repository to have an appropriate level of skill and experience to effectively and efficiently oversee the management of its operations.  This would include individuals with experience and skills in areas such as business recovery, contingency planning, financial market systems and data management.

 

Under paragraph 9(2)(b), the board of directors of a designated trade repository must include individuals who are independent of the designated trade repository.  The Commission would view individuals who have no direct or indirect material relationship with the designated trade repository as independent.  The Commission would expect that independent directors of a designated trade repository would represent the public interest by ensuring that regulatory and public transparency objectives are fulfilled, and that the interests of participants who are not derivatives dealers are considered.

 

Chief compliance officer

 

11. (3) References to harm to the capital markets in subsection 11(3) may be in relation to domestic or international capital markets.

 

Fees

 

12. A designated trade repository is responsible for ensuring that the fees it sets are in compliance with section 12.  In assessing whether a designated trade repository’s fees and costs are fairly and equitably allocated among participants as required under paragraph 12(a), the Commission will consider a number of factors, including

 

•         the number and complexity of the transactions being reported,

 

•         the amount of the fee or cost imposed relative to the cost of providing the services,

 

•         the amount of fees or costs charged by other comparable trade repositories, where relevant, to report similar transactions in the market,

 

•         with respect to market data fees and costs, the amount of market data fees charged relative to the market share of the designated trade repository, and

 

•         whether the fees or costs represent a barrier to accessing the services of the designated trade repository for any category of participant.

 

A designated trade repository should provide clear descriptions of priced services for comparability purposes.  Other than fees for individual services, a designated trade repository should also disclose other fees and costs related to connecting to or accessing the trade repository.  For example, a designated trade repository should disclose information on the system design, as well as technology and communication procedures, that influence the costs of using the designated trade repository.  A designated trade repository is also expected to provide timely notice to participants and the public of any changes to services and fees.

 

Access to designated trade repository services

 

13. (3) Under subsection 13(3), a designated trade repository is prohibited from unreasonably limiting access to its services, permitting unreasonable discrimination among its participants, imposing unreasonable burdens on competition or requiring the use or purchase of another service in order for a person or company to utilize its trade reporting service.  For example, a designated trade repository should not engage in anti-competitive practices such as setting overly restrictive terms of use or engaging in anti-competitive price discrimination.  A designated trade repository should not develop closed, proprietary interfaces that result in vendor lock-in or barriers to entry with respect to competing service providers that rely on the data maintained by the designated trade repository.

 

Acceptance of reporting

 

14. Section 14 requires that a designated trade repository accept derivatives data for all derivatives of the asset class or classes set out in its designation order.  For example, if the designation order of a designated trade repository includes interest rate derivatives, the designated trade repository is required to accept transaction data for all types of interest rate derivatives that are entered into by a local counterparty.  It is possible that a designated trade repository may accept derivatives data for only a subset of a class of derivatives if this is indicated in its designation order.  For example, there may be designated trade repositories that accept derivatives data for only certain types of commodity derivatives such as energy derivatives.

 

Communication policies, procedures and standards

 

15. Section 15 sets out the communication standard required to be used by a designated trade repository in communications with other specified entities.  The reference in paragraph 15(d) to "other service providers" could include persons or companies who offer technological or transaction processing or post-transaction services.

 

Rules, policies and procedures

 

17. Section 17 requires that the publicly disclosed written rules and procedures of a designated trade repository be clear and comprehensive, and include explanatory material written in plain language so that participants can fully understand the system’s design and operations, their rights and obligations, and the risks of participating in the system.  Moreover, a designated trade repository should disclose to its participants and to the public, basic operational information and responses to the CPSS-IOSCO Disclosure framework for financial market infrastructures.

 

(2) Subsection 17(2) requires that a designated trade repository monitor compliance with its rules and procedures.  The methodology of monitoring such compliance should be fully documented.

 

(3) Subsection 17(3) requires a designated trade repository to implement processes for dealing with non-compliance with its rules and procedures.  This subsection does not preclude enforcement action by any other person or company, including the Commission or other regulatory body.

 

(5) Subsection 17(5) requires a designated trade repository to file its rules and procedures with the Commission for approval, in accordance with the terms and conditions of the designation order.  Upon designation, the Commission may develop and implement a protocol with the designated trade repository that will set out the procedures to be followed with respect to the review and approval of rules and procedures and any amendments thereto.  Generally, such a rule protocol will be appended to and form part of the designation order.  Depending on the nature of the changes to the designated trade repository’s rules and procedures, such changes may also impact the information contained in Form 91-507F1.  In such cases, the designated trade repository will be required to file a revised Form 91-507F1 with the Commission. See section 3 of this Policy for a discussion of the filing requirements.

 

Records of data reported

 

18. A designated trade repository is a market participant under securities legislation and therefore subject to the record-keeping requirements under securities legislation.  The record-keeping requirements under section 18 are in addition to the requirements under securities legislation.

 

(2) Subsection 18(2) requires that records be maintained for 7 years after the expiration or termination of a transaction.  The requirement to maintain records for 7 years after the expiration or termination of a transaction, rather than from the date the transaction was entered into, reflects the fact that transactions create on-going obligations and information is subject to change throughout the life of a transaction.

 

Comprehensive risk-management framework

 

19. Requirements for a comprehensive risk-management framework of a designated trade repository are set out in section 19.

 

Features of framework

 

A designated trade repository should have a written risk-management framework (including policies, procedures, and systems) that enable it to identify, measure, monitor, and manage effectively the range of risks that arise in, or are borne by, a designated trade repository.  A designated trade repository’s framework should include the identification and management of risks that could materially affect its ability to perform or to provide services as expected, such as interdependencies.

 

Establishing a framework

 

A designated trade repository should have comprehensive internal processes to help its board of directors and senior management monitor and assess the adequacy and effectiveness of its risk-management policies, procedures, systems, and controls.  These processes should be fully documented and readily available to the designated trade repository’s personnel who are responsible for implementing them.

 

Maintaining a framework

 

A designated trade repository should regularly review the material risks it bears from, and poses to, other entities (such as other FMIs, settlement banks, liquidity providers, or service providers) as a result of interdependencies, and develop appropriate risk-management tools to address these risks.  These tools should include business continuity arrangements that allow for rapid recovery and resumption of critical operations and services in the event of operational disruptions and recovery or orderly wind-down plans should the trade repository become non-viable.

 

General business risk

 

20. (1) Subsection 20(1) requires a designated trade repository to manage its general business risk effectively.  General business risk includes any potential impairment of the designated trade repository’s financial position (as a business concern) as a consequence of a decline in its revenues or an increase in its expenses, such that expenses exceed revenues and result in a loss that must be charged against capital or an inadequacy of resources necessary to carry on business as a designated trade repository.

 

(2) For the purposes of subsection 20(2), the amount of liquid net assets funded by equity that a designated trade repository should hold is to be determined by its general business risk profile and the length of time required to achieve a recovery or orderly wind-down, as appropriate, of its critical operations and services, if such action is taken.

 

(3) Subsection (3) requires a designated trade repository, for the purposes of subsection (2), to hold liquid net assets funded by equity equal to no less than six months of current operating expenses.

 

(4) For the purposes of subsections 20(4) and (5), and in connection with developing a comprehensive risk-management framework under section 19, a designated trade repository should identify scenarios that may potentially prevent it from being able to provide its critical operations and services as a going concern, and assess the effectiveness of a full range of options for recovery or orderly wind-down.  These scenarios should take into account the various independent and related risks to which the designated trade repository is exposed.

 

Based on the required assessment of scenarios under subsection 20(4) (and taking into account any constraints potentially imposed by legislation), the designated trade repository should prepare appropriate written plans for its recovery or orderly wind-down.  The plan should contain, among other elements, a substantive summary of the key recovery or orderly wind-down strategies, the identification of the designated trade repository’s critical operations and services, and a description of the measures needed to implement the key strategies.  The designated trade repository should maintain the plan on an ongoing basis, to achieve recovery and orderly wind-down, and should hold sufficient liquid net assets funded by equity to implement this plan (see also subsections 20(2) and (3) above).  A designated trade repository should also take into consideration the operational, technological, and legal requirements for participants to establish and move to an alternative arrangement in the event of an orderly wind-down.

 

Systems and other operational risk requirements

 

21. (1) Subsection 21(1) sets out a general principle concerning the management of operational risk.  In interpreting subsection 21(1), the following key considerations should be applied:

 

• a designated trade repository should establish a robust operational risk-management framework with appropriate systems, policies, procedures, and controls to identify, monitor, and manage operational risks;
• a designated trade repository should review, audit, and test systems, operational policies, procedures, and controls, periodically and after any significant changes; and
• a designated trade repository should have clearly defined operational-reliability objectives and policies in place that are designed to achieve those objectives.

 

(2) The board of directors of a designated trade repository should clearly define the roles and responsibilities for addressing operational risk and approve the designated trade repository’s operational risk-management framework.

 

(3) Paragraph 21(3)(a) requires a designated trade repository to develop and maintain an adequate system of internal control over its systems as well as adequate general information-technology controls.  The latter controls are implemented to support information technology planning, acquisition, development and maintenance, computer operations, information systems support, and security.  Recommended Canadian guides as to what constitutes adequate information technology controls include ‘Information Technology Control Guidelines’ from the Canadian Institute of Chartered Accountants and ‘COBIT’ from the IT Governance Institute.  A designated trade repository should ensure that its information-technology controls address the integrity of the data that it maintains, by protecting all derivatives data submitted from corruption, loss, improper disclosure, unauthorized access and other processing risks.

 

Paragraph 21(3)(b) requires a designated trade repository to thoroughly assess future needs and make systems capacity and performance estimates in a method consistent with prudent business practice at least once a year.  The paragraph also imposes an annual requirement for designated trade repositories to conduct periodic capacity stress tests.  Continual changes in technology, risk management requirements and competitive pressures will often result in these activities or tests being carried out more frequently.

 

Paragraph 21(3)(c) requires a designated trade repository to notify the Commission of any material systems failure.  The Commission would consider a failure, malfunction, delay or other disruptive incident to be "material" if the designated trade repository would in the normal course of its operations escalate the incident to, or inform, its senior management that is responsible for technology, or the incident would have an impact on participants.  The Commission also expects that, as part of this notification, the designated trade repository will provide updates on the status of the failure, the resumption of service, and the results of its internal review of the failure.

 

(4) Subsection 21(4) requires that a designated trade repository establish, implement, maintain and enforce business continuity plans, including disaster recovery plans.  The Commission believes that these plans should allow the designated trade repository to provide continuous and undisrupted service, as back-up systems ideally should commence processing immediately.  Where a disruption is unavoidable, a designated trade repository is expected to provide prompt recovery of operations, meaning that it resumes operations within 2 hours following the disruptive event.  Under paragraph 21(4)(c), an emergency event could include any external sources of operational risk, such as the failure of critical service providers or utilities or events affecting a wide metropolitan area, such as natural disasters, terrorism, and pandemics.  Business continuity planning should encompass all policies and procedures to ensure uninterrupted provision of key services regardless of the cause of potential disruption.

 

(5) Subsection 21(5) requires a designated trade repository to test its business continuity plans at least once a year.  The expectation is that the designated trade repository would engage relevant industry participants, as necessary, in tests of its business continuity plans, including testing of back-up facilities for both the designated trade repository and its participants.

 

(6) Subsection 21(6) requires a designated trade repository to engage a qualified party to conduct an annual independent assessment of the internal controls referred to in paragraphs 21(3)(a) and (b) and subsections 21(4) and (5).  A qualified party is a person or company or a group of persons or companies with relevant experience in both information technology and in the evaluation of related internal controls in a complex information technology environment, such as external auditors or third party information system consultants.  The Commission is of the view that this obligation may also be satisfied by an independent assessment by an internal audit department that is compliant with the International Standards for the Professional Practice of Internal Auditing published by the Institute of Internal Audit. Before engaging a qualified party, the designated trade repository should notify the Commission.

 

(8) Subsection 21(8) requires designated trade repositories to make public all material changes to technology requirements to allow participants a reasonable period to make system modifications and test their modified systems.  In determining what a reasonable period is, the Commission of the view that the designated trade repository should consult with participants and that a reasonable period would allow all participants a reasonable opportunity to develop, implement and test systems changes.  We expect that the needs of all types of participants would be considered, including those of smaller and less sophisticated participants.

 

(9) Subsection 21(9) requires designated trade repositories to make available testing facilities in advance of material changes to technology requirements to allow participants a reasonable period to test their modified systems and interfaces with the designated trade repository.  In determining what a reasonable period is, the Commission of the view that the designated trade repository should consult with participants and that a reasonable period would allow all participants a reasonable opportunity to develop, implement and test systems changes.  We expect that the needs of all types of participants would be considered, including those of smaller and less sophisticated participants.

 

Data security and confidentiality

 

22. (1) Subsection 22(1) provides that a designated trade repository must establish policies and procedures to ensure the safety, privacy and confidentiality of derivatives data to be reported to it under the Rule.  The policies must include limitations on access to confidential trade repository data and safeguards to protect against persons and companies affiliated with the designated trade repository from using trade repository data for their personal benefit or the benefit of others.

 

(2) Subsection 22(2) prohibits a designated trade repository from releasing reported derivatives data, for a commercial or business purpose, that is not required to be publicly disclosed under section 39 without the express written consent of the counterparties to the transaction or transactions to which the derivatives data relates.  The purpose of this provision is to ensure that users of the designated trade repository have some measure of control over their derivatives data.

 

Confirmation of data and information

 

23. Subsection 23(1) requires a designated trade repository to have and follow written policies and procedures for confirming the accuracy of the derivatives data received from a reporting counterparty.  A designated trade repository must confirm the accuracy of the derivatives data with each counterparty to a reported transaction provided that the non-reporting counterparty is a participant of the trade repository.  Where the non-reporting counterparty is not a participant of the trade repository, there is no obligation to confirm with such non-reporting counterparty.

 

The purpose of the confirmation requirement in subsection 23(1) is to ensure that the reported information is agreed to by both counterparties.  However, in cases where a non-reporting counterparty is not a participant of the relevant designated trade repository, the designated trade repository would not be in a position to confirm the accuracy of the derivatives data with such counterparty.  As such, under subsection 23(2) a designated trade repository will not be obligated to confirm the accuracy of the derivatives data with a counterparty that is not a participant of the designated trade repository.  Additionally, similar to the reporting obligations in section 26, confirmation under subsection 23(1) can be delegated under section 26(3) to a third-party representative.

 

A trade repository may satisfy its obligation under section 23 to confirm the derivatives data reported for a transaction by notice to each counterparty to the transaction that is a participant of the designated trade repository, or its delegated third-party representative where applicable, that a report has been made naming the participant as a counterparty to a transaction, accompanied by a means of accessing a report of the derivatives data submitted.  The policies and procedures of the designated trade repository may provide that if the designated trade repository does not receive a response from a counterparty within 48 hours, the counterparty is deemed to confirm the derivatives data as reported.

 

 

 

 

Outsourcing

 

24. Section 24 sets out requirements applicable to a designated trade repository that outsources any of its key services or systems to a service provider.  Generally, a designated trade repository must establish policies and procedures to evaluate and approve these outsourcing arrangements.  Such policies and procedures include assessing the suitability of potential service providers and the ability of the designated trade repository to continue to comply with securities legislation in the event of bankruptcy, insolvency or the termination of business of the service provider.  A designated trade repository is also required to monitor the ongoing performance of a service provider to which it outsources a key service, system or facility.  The requirements under section 24 apply regardless of whether the outsourcing arrangements are with third-party service providers or affiliates of the designated trade repository.  A designated trade repository that outsources its services or systems remains responsible for those services or systems and for compliance with securities legislation.

 

 

PART 3

DATA REPORTING

 

Part 3 deals with reporting obligations for transactions and includes a description of the counterparties that will be subject to the duty to report, requirements as to the timing of reports and a description of the data that is required to be reported.

 

Reporting counterparty

 

25. Section 25 outlines how the counterparty required to report derivatives data and fulfil the ongoing reporting obligations under the Rule is determined.  Reporting obligations on derivatives dealers apply irrespective of whether the derivatives dealer is a registrant.

 

(1) Subsection 25(1) outlines a hierarchy for determining which counterparty to a transaction will be required to report the transaction based on the counterparty to the transaction that is best suited to fulfill the reporting obligation.  For example, for transactions that are cleared through a recognized or exempt clearing agency, the clearing agency is best positioned to report derivatives data and is therefore required to act as reporting counterparty

 

Although there may be situations in which the reporting obligation falls on both counterparties to a transaction, it is the Commission’s view that in such cases the counterparties should select one counterparty to fulfill the reporting obligation to avoid duplicative reporting.  For example, if a transaction required to be reported is between two dealers, each dealer has an obligation to report under paragraph 25(1)(b).  Similarly, if a transaction is between two local counterparties that are not dealers, both local counterparties have an obligation to report under paragraph 25(1)(d).  However, because a reporting counterparty may delegate its reporting obligations under subsection 26(3), the Commission expects that the practical outcome is that one counterparty will delegate its reporting obligation to the other (or a mutually agreed upon third party) and only one report will be filed in respect of the transaction.  Therefore, although both counterparties to the transaction examples described above ultimately have the reporting obligation, they may institute contracts, systems and practices to agree to delegate the reporting function to one party.  The intention of these provisions is to facilitate one counterparty reporting through delegation while requiring both counterparties to have procedures or contractual arrangements in place to ensure that reporting occurs.

 

(2) Subsection 25(2) applies to situations where the reporting counterparty, as determined under paragraph 25(1)(c), is not a local counterparty.  This provision is intended to cover situations where a non-local reporting counterparty does not report a transaction or otherwise fails to fulfil the reporting counterparty’s reporting duties.  In such case the local counterparty must act as the reporting counterparty and fulfil the reporting counterparty duties under the Rule.  This provision differs from the situations in paragraphs 25(1)(b) and 25(1)(d) because the Commission is of the view that, where a transaction is between a derivatives dealer and an end-user, the derivatives dealer is best positioned to act as reporting counterparty.

 

The Commission expects that a local counterparty will determine that the non-local reporting counterparty has discharged its reporting obligations by reviewing a confirmation of the transaction report.  Where the local counterparty has not received confirmation that its transaction has been reported in accordance with the requirements of this Rule within two business days after the date on which the transaction occurred, under subsection 25(2) it must act as reporting counterparty for the transaction.  Where the local counterparty is a participant of the designated trade repository this confirmation would come from the designated trade repository in accordance with subsection 23(1).  Where the local counterparty is not a participant it would be necessary for the local counterparty to ensure that it receives the confirmation from the reporting counterparty (or its delegate). 

 

Subsection 31(4) modifies the timing requirement for the reporting of data where a local counterparty has assumed the role of reporting counterparty because of a failure to report by a non-local reporting counterparty.  In such cases the local counterparty should report the transaction no later than the end of the third business day after the day on which the data should otherwise have been reported.

 

The Commission is of the view that, because a registered foreign derivatives dealer is a local counterparty under the rule, there will only be limited situations where this subsection 25(2) applies.

 

Duty to report

26. Section 26 outlines the duty to report derivatives data.

 

(1) Subsection 26(1) requires that, subject to sections 40, 41, 42 and 43, derivatives data for each transaction to which one or more counterparties is a local counterparty be reported to a designated trade repository.  The counterparty required to report the derivatives data is the reporting counterparty as determined under section 25.

 

(2) Under subsection 26(2), the reporting counterparty for a transaction must ensure that all reporting obligations are fulfilled.  This includes ongoing requirements such as the reporting of life-cycle event data and valuation data.

(3) Subsection 26(3) permits the delegation of all reporting obligations of a reporting counterparty.  This includes reporting of initial creation data, life-cycle event data and valuation data.  For example, some or all of the reporting obligations may be delegated to a third-party service provider.  However, the reporting counterparty remains responsible for ensuring that the derivatives data is accurate and reported within the timeframes required under the Rule.

 

(4) With respect to subsection 26(4), prior to the reporting rules in Part 3 coming into force, the Commission will provide public guidance on how reports for transactions that are not accepted for reporting by any designated trade repository should be electronically submitted to the Commission.

 

(5) Subsection 26(5) provides for limited substituted compliance with this Rule where a transaction has been reported to a designated trade repository pursuant to the law of a province of Canada other than Manitoba or of a foreign jurisdiction listed in Appendix B, provided that the additional conditions set out in paragraphs (a) and (c) are satisfied.

 

(6) Paragraph 26(6)(a) requires that all derivatives data reported for a given transaction be reported to the same designated trade repository to which the initial report is submitted or, with respect to transactions reported under section 26(4), to the Commission.  For a bi-lateral transaction that is assumed by a clearing agency (novation), the designated trade repository to which all derivatives data for the assumed transactions must be reported is the designated trade repository to which the original bi-lateral transaction was reported.

 

The purpose of this requirement is to ensure the Commission has access to all reported derivatives data for a particular transaction from the same entity.  It is not intended to restrict counterparties’ ability to report to multiple trade repositories.  Where the entity to which the transaction was originally reported is no longer a designated trade repository, all data relevant to that transaction should be reported to another designated trade repository as otherwise required by the Rule.

 

(7) The Commission interprets the requirement in subsection 26(7) to report errors or omissions in derivatives data "as soon as technologically practicable" after it is discovered, to mean upon discovery and in any case no later than the end of the business day on which the error or omission is discovered.

 

(8) Under subsection 26(8), where a local counterparty that is not a reporting counterparty discovers an error or omission in respect of derivatives data that is reported to a designated trade repository, such local counterparty has an obligation to report the error or omission to the reporting counterparty.  Once the error or omission is reported to the reporting counterparty, the reporting counterparty then has an obligation under subsection 26(7) to report the error or omission to the designated trade repository or to the Commission in accordance with subsection 26(6).  The Commission interprets the requirement in subsection 26(8) to notify the reporting counterparty of errors or omissions in derivatives data to mean upon discovery and in any case no later than the end of the business day on which the error or omission is discovered.

 

Legal entity identifiers

 

28. (1) Subsection 28(1) requires that a designated trade repository identify all counterparties to a transaction by a legal entity identifier. It is envisioned that this identifier be a LEI under the Global LEI System.  The Global LEI System is a G20 endorsed initiative[5] that will uniquely identify parties to transactions.  It is currently being designed and implemented under the direction of the LEI ROC, a governance body endorsed by the G20.

 

(2) The "Global Legal Entity Identifier System" referred to in subsection 28(2) means the G20 endorsed system that will serve as a public-good utility responsible for overseeing the issuance of legal entity identifiers globally to counterparties who enter into transactions.

 

(3) If the Global LEI System is not available at the time counterparties are required to report their LEI under the Rule, they must use a substitute legal entity identifier.  The substitute legal entity identifier must be in accordance with the standards established by the LEI ROC for pre-LEI identifiers.  At the time the Global LEI System is operational; counterparties must cease using their substitute LEI and commence reporting their LEI.  The substitute LEI and LEI could be identical.

 

Unique transaction identifier

 

29. A unique transaction identifier will be assigned by the designated trade repository to each transaction which has been submitted to it.  The designated trade repository may utilize its own methodology or incorporate a previously assigned identifier that has been assigned by, for example, a clearing agency, trading platform, or third-party service provider.  However, the designated trade repository must ensure that no other transaction shares the same identifier.

 

A transaction in this context means a transaction from the perspective of all counterparties to the transaction.  For example, both counterparties to a single swap transaction would identify the transaction by the same single identifier.  For a bi-lateral transaction that is novated to a clearing agency, the reporting of the novated transactions should reference the unique transaction identifier of the original bi-lateral transaction.

 

Unique product identifier

 

30. Section 30 requires that a reporting counterparty identify each transaction that is subject to the reporting obligation under the Rule by means of a unique product identifier.  There is currently a system of product taxonomy that may be used for this purpose.[6]  To the extent that a unique product identifier is not available for a particular transaction type, a reporting counterparty would be required to create one using an alternative methodology.

 

Creation data

 

31. Subsection 31(2) requires that reporting of creation data be made in real time, which means that creation data should be reported as soon as technologically practicable after the execution of a transaction.  In evaluating what will be considered to be "technological practicable", the Commission will take into account the prevalence of implementation and use of technology by comparable counterparties located in Canada and in foreign jurisdictions.  The Commission may also conduct independent reviews to determine the state of reporting technology.

 

(3) Subsection 31(3) is intended to take into account the fact that not all counterparties will have the same technological capabilities.  For example, counterparties that do not regularly engage in transactions would, at least in the near term, likely not be as well situated to achieve real-time reporting.  Further, for certain post-transaction operations, such as trade compressions involving numerous transactions, real time reporting may not currently be practicable.  In all cases, the outside limit for reporting is the end of the business day following execution of the transaction.

 

(4) Subsection 31(4) is intended to take into account the fact that a local counterparty who is required to fulfill the obligations of a reporting counterparty under subsection 25(2) will become aware of a non-local reporting counterparty’s failure to report derivatives data only by the end of the second day following the execution of the transaction required to be reported.  Accordingly, a local counterparty that must act as reporting counterparty under subsection 25(2) is required to report creation data no later than the end of the third business day following the day on which the data should otherwise have been reported.

 

Life-cycle event data

 

32. The Commission notes that, in accordance with subsection 26(6), all reported derivatives data relating to a particular transaction must be reported to the same designated trade repository to which the initial report was made, or to the Commission for transactions for which derivatives data was reported to the Commission in accordance with subsection 26(4).

 

(1) Life-cycle event data is not required to be reported in real time but rather at the end of the business day on which the life-cycle event occurs.  The end of business day report may include multiple life-cycle events that occurred on that day.

 

Valuation data

 

33. Valuation data with respect to a transaction that is subject to the reporting obligations under the Rule is required to be reported by the reporting counterparty.  For both cleared and uncleared transactions, counterparties may, as described in subsection 26(3), delegate the reporting of valuation data to a third party, but such counterparties remain ultimately responsible for ensuring the timely and accurate reporting of this data.  The Commission notes that, in accordance with subsection 26(6), all reported derivatives data relating to a particular transaction must be reported to the same designated trade repository to which the initial report was made, or to the Commission for transactions for which the initial report was made to the Commission in accordance with subsection 26(4).

 

(1) Subsection 33(1) provides for differing frequency of valuation data reporting based on the type of entity that is the reporting counterparty.

 

Pre-existing derivatives

 

34. Section 34 requires that pre-existing transactions that were entered into before July 2, 2014 and that will not expire or terminate on or before December 31, 2014 to be reported to a designated trade repository.  Creation data in respect of pre-existing transactions that must be reported pursuant to section 34 must be reported to a designated trade repository no later than December 31, 2014.  In addition, only the data indicated in the column entitled "Required for Pre-existing Transactions" in Appendix A will be required to be reported for pre-existing transactions.

 

Transactions that are entered into before July 2, 2014 and that expire or terminate on or before December 31, 2014 will not be subject to the reporting obligation.  These transactions are exempted from the reporting obligation in the Rule, to relieve some of the reporting burden for counterparties and because they would provide marginal utility to the Commission due to their imminent termination or expiry.

 

The derivatives data required to be reported for pre-existing transactions under section 34 is substantively the same as the requirement under CFTC Rule 17 CFR Part 46 – Swap Data Recordkeeping and Reporting Requirements: Pre-Enactment and Transition Swaps.  Therefore, to the extent that a reporting counterparty has reported pre-existing transaction derivatives data required by the CFTC rule, this would meet the derivatives data reporting requirements under section 34.  This interpretation applies only to pre-existing transactions.

 

 

PART 4

DATA DISSEMINATION AND ACCESS TO DATA

 

Data available to regulators

 

37. (1) Subsection 37(1) requires designated trade repositories to, at no cost to the Commission: (a) provide to the Commission continuous and timely electronic access to derivatives data; (b) promptly fulfill data requests from the Commission; (c) provide aggregate derivatives data; and (d) disclose how data has been aggregated.  Electronic access includes the ability of the Commission to access, download, or receive a direct real-time feed of derivatives data maintained by the designated trade repository.

 

The derivatives data covered by this subsection are data necessary to carry out the Commission’s mandate to protect against unfair, improper or fraudulent practices, to foster fair and efficient capital markets, to promote confidence in the capital markets, and to address systemic risk.  This includes derivatives data with respect to any transaction or transactions that may impact Manitoba’s capital markets.

 

Transactions that reference an underlying asset or class of assets with a nexus to Manitoba or Canada can impact Manitoba’s capital markets even if the counterparties to the transaction are not local counterparties.  Therefore, the Commission has a regulatory interest in transactions involving such underlying interests even if such data is not submitted pursuant to the reporting obligations in the Rule, but is held by a designated trade repository.

 

(2) Subsection 37(2) requires a designated trade repository to conform to internationally accepted regulatory access standards applicable to trade repositories.  Trade repository regulatory access standards have been developed by CPSS and IOSCO.  It is expected that all designated trade repositories will comply with the access recommendations in CPSS-IOSCO’s final report.[7]

 

(3) The Commission interprets the requirement for a reporting counterparty to use best efforts to provide the Commission with access to derivatives data to mean, at a minimum, instructing the designated trade repository to release derivative data to the Commission.

 

Data available to counterparties

 

38. Section 38 is intended to ensure that each counterparty, and any person acting on behalf of a counterparty, has access to all derivatives data relating to its transaction(s) in a timely manner.  The Commission is of the view that where a counterparty has provided consent to a trade repository to grant access to data to a third-party service provider, the trade repository shall grant such access on the terms consented to.

 

Data available to public

 

39. (1) Subsection 39(1) requires a designated trade repository to make available to the public, free of charge, certain aggregate data for all transactions reported to it under the Rule (including open positions, volume, number of transactions, and price).  It is expected that a designated trade repository will provide aggregate data by notional amounts outstanding and level of activity.  Such aggregate data is expected to be available on the designated trade repository’s website.

 

(2) Subsection 39(2) requires that the aggregate data that is disclosed under subsection 39(1), be broken down into various categories of information.  The following are examples of the aggregate data required under subsection 39(2):

•         currency of denomination (the currency in which the derivative is denominated);

•         geographic location of the underlying reference entity (e.g., Canada for derivatives which reference the TSX60 index);

•         asset class of reference entity (e.g., fixed income, credit, or equity);

•         product type (e.g., options, forwards, or swaps);

•         cleared or uncleared;

•         maturity (broken down into maturity ranges, such as less than one year, 1-2 years, 2-3 years).

 

(3) Subsection 39(3) requires a designated trade repository to publicly report the data indicated in the column entitled "Required for public dissemination" in Appendix A of the Rule.  For transactions where at least one counterparty is a derivatives dealer, paragraph 39(3)(a) requires that such data be publicly disseminated by the end of the day following the day on which the designated trade repository receives the data.  For transactions where neither counterparty is a derivatives dealer, paragraph 39(3)(b) requires that such data be publicly disseminated by the end of the second day following the day on which the designated trade repository receives the data.  The purpose of the public reporting delays is to ensure that counterparties have adequate time to enter into any offsetting transaction that may be necessary to hedge their positions.  These time delays apply to all transactions, regardless of transaction size.

 

(4) Subsection 39(4) provides that a designated trade repository must not disclose the identity of either counterparty to the transaction.  This means that published data must be anonymized and the names or legal entity identifiers of counterparties must not be published.  This provision is not intended to create a requirement for a designated trade repository to determine whether anonymized published data could reveal the identity of a counterparty based on the terms of the transaction.

 

 

PART 5

EXCLUSIONS

 

40. Section 40 provides that the reporting obligation for a physical commodity transaction entered into between two non-derivatives dealers does not apply in certain limited circumstances.  This exclusion only applies if a local counterparty to a transaction has less than $500,000 aggregate notional value under all outstanding derivatives transactions, including the additional notional value related to that transaction.  In calculating this exposure, the notional value of all outstanding transactions, including transactions from all asset classes and with all counterparties, domestic and foreign, should be included.  The notional value of a physical commodity transaction would be calculated by multiplying the quantity of the physical commodity by the price for that commodity.  A counterparty that is above the $500,000 threshold is required to act as reporting counterparty for a transaction involving a party that is exempt from the reporting obligation under section 40.  In a situation where both counterparties to a transaction qualify for this exclusion, it would not be necessary to determine a reporting counterparty in accordance with section 25.

 

This relief applies to physical commodity transactions that are not excluded derivatives for the purpose of the reporting obligation in paragraph 2(d) of MSC Rule 91-506 Derivatives: Product Determination.  An example of a physical commodity transaction that is required to be reported (and therefore could benefit from this relief) is a physical commodity contract that allows for cash settlement in place of delivery.

 

 

PART 7

EFFECTIVE DATE

 

Effective date

 

43. (2) The requirement under subsection 39(3) to make transaction level data reports available to the public does not apply until December 31, 2014.

 

(3) Where the counterparty is a derivatives dealer or recognized or exempted clearing agency, subsection 42(3) provides that no reporting is required until July 2, 2014.

 

(4) For non-dealers, subsection 42(4) provides that no reporting is required until September 30, 2014.  This provision only applies where both counterparties are non-dealers.  Where the counterparties to a transaction are a dealer and a non-dealer, the derivatives dealer will be required to report according to the timing outlined in subsection 42(3).

 

(5) Subsection 43(5) provides that no reporting is required for pre-existing transactions that terminate or expire by December 31, 2014.