Notice2024-17423
Security-Based Swap Data Repositories; KOR Reporting, Inc.; Notice of Filing of Application for Registration as a Security-Based Swap Data Repository
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
August 7, 2024
Issuing agencies
Securities and Exchange Commission
Full Text
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<title>Federal Register, Volume 89 Issue 152 (Wednesday, August 7, 2024)</title>
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[Federal Register Volume 89, Number 152 (Wednesday, August 7, 2024)]
[Notices]
[Pages 64526-64532]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-17423]
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SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-100638; File No. SBSDR-2023-01]
Security-Based Swap Data Repositories; KOR Reporting, Inc.;
Notice of Filing of Application for Registration as a Security-Based
Swap Data Repository
August 2, 2024.
I. Introduction
On January 26, 2023, KOR Reporting, Inc. (``KOR'') 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\ KOR intends to operate as a registered
SDR for security-based swap (``SBS'') transactions in the equity,
credit, and interest rate derivatives asset classes. KOR subsequently
filed amendments to its application on the following dates: August 11,
2023, and February 23, 2024.\3\ The Commission is publishing this
notice to solicit comments from interested persons regarding KOR's
application,\4\ and the Commission will consider any comments it
receives in making its determination whether to approve KOR'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 KOR's
application on Form SDR and non-confidential exhibits thereto are
available for public viewing on the Commission's website.
\2\ 15 U.S.C. 78k-1(b).
\3\ The amendments to KOR's application were filed to update
certain exhibits, including those addressing the disclosure
document, financial statements, and fee schedule.
\4\ The descriptions set forth in this notice regarding the
structure and operations of KOR have been derived, excerpted, or
summarized from KOR'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.\5\ 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.\6\ 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'').\7\ 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
[[Page 64527]]
these temporary exemptions expired in 2017.\8\
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\5\ 15 U.S.C. 78m(n).
\6\ See id.
\7\ 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 (Sept. 2, 2016).
\8\ 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.\9\ Among other things, Regulation SBSR requires each
registered SDR to register with the Commission as a SIP,\10\ and the
Form SDR constitutes an application for registration as a SIP, as well
as an SDR.\11\
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\9\ 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.''
\10\ See 17 CFR 242.909.
\11\ 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.\12\ 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,\13\ certain actions with respect to the SBS Reporting
Rules would not provide a basis for a Commission enforcement
action.\14\ The no-action statement's relevance to KOR's application
for registration as an SDR and SIP is discussed further below.
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\12\ Release No. 34-87780 (Dec. 18, 2019), 85 FR 6270, 6347
(Feb. 4, 2020) (``ANE Adopting Release'').
\13\ 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 Oct. 6, 2021.
See id. at 6270, 6345.
\14\ 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.\15\ 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.\16\ The Commission shall deny the
registration of an SDR if it does not make any such finding.\17\
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, 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.\18\
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\15\ See 15 U.S.C. 78m(n)(3).
\16\ 17 CFR 240.13n-1(c)(3).
\17\ See id.
\18\ 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.\19\ 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.\20\ 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.\21\
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\19\ See SDR Adopting Release, supra note 7, at 14459.
\20\ See id. at 14458.
\21\ See id. at 14458-59.
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Consistent with the Commission's no-action statement in the ANE
Adopting Release,\22\ 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.\23\ 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.\24\ 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.\25\ 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
[[Page 64528]]
class or classes for which it intends to accept transaction
reports.\26\
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\22\ See supra notes 12-14 and accompanying text.
\23\ See supra note 14.
\24\ 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 12, at 6347-48.
\25\ See id. at 6348.
\26\ See id. For example, an applicant need not describe in
Exhibit S its functions as a SIP.
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III. Summary of KOR's Application on Form SDR
As noted above, KOR intends to operate as a registered SDR for the
equity, credit, and interest rate derivatives asset classes.\27\ In its
application, KOR represents that it is provisionally registered with
the CFTC as a swap data repository,\28\ 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 SDR duties for the period set forth
therein.\29\ Below is an overview of the representations made in the
application materials regarding the KOR security-based swap data
repository (``KOR SBSDR'').
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\27\ See Rulebook, Ex. HH, sec. 0.1; see also Form SDR.
\28\ See 17 CFR 49.3(b) (providing that the CFTC may grant
provisional registration of a swap data repository if such applicant
is in substantial compliance with the standards set forth in 17 CFR
49.3(a)(4) and is able to demonstrate operational capability, real-
time processing, multiple redundancy and robust security controls);
17 CFR 49.3(a)(4) (setting forth the standard for approval for
granting registration to a swap data repository).
\29\ See Form SDR, cover letter from Tara Collier Manuel, Chief
Compliance Officer and Head of Regulatory Products, KOR Reporting,
Inc.
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A. Organization and Governance
KOR is a Delaware corporation and along with its affiliate, KOR
Financial Inc. (``KOR Financial''), is a wholly owned subsidiary of KOR
US Holdings, Inc. (``KOR Holdings'').\30\ KOR is governed by a board of
directors (``KOR Board'').\31\ The KOR Board is comprised of at least
three Directors with a majority being independent Directors and at
least one director being a ``Public Director'' as defined in applicable
CFTC regulations.\32\ According to the KOR Rulebook, KOR board members
should have the characteristics essential for effectiveness as a member
of the Board, including but not limited to: (a) integrity, objectivity,
sound judgment and leadership; (b) the relevant expertise and
experience required to offer advice and guidance to the Chief Executive
Officer and other members of senior management; (c) the ability to make
independent analytical inquiries; (d) the ability to collaborate
effectively and contribute productively to the Board's discussions and
deliberations; (e) an understanding of the company's business, strategy
and challenges; (f) the willingness and ability to devote adequate time
and effort to Board responsibilities and to serve on Committees at the
request of the Board; and (g) not being a disqualified person.\33\ The
KOR Board is composed of individuals selected from the following
groups: employees of KOR, clients with derivatives industry experience,
independents, and members of senior management.\34\ The KOR Board will
review annually the relationships that each Director has with KOR
(either directly or as a partner, equity holder or officer of an
organization that has a relationship with KOR).\35\ According to KOR,
following such annual review, only those Directors who the KOR Board
affirmatively determines have no material relationship with KOR (either
directly or as a partner, equity holder or officer of an organization
that has a relationship with KOR) will be considered Independent
Directors, subject to additional qualifications prescribed by
applicable law.\36\
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\30\ See Rulebook, Ex, HH, sec 0.1; see also Form SDR; KOR
Reporting Inc Certificate of Incorporation, Ex. E-1, sec. 1.0.
\31\ See KOR SEC SBSDR Disclosure Document v1.2, Ex. GG-2, sec.
9.0.
\32\ See Rulebook, Ex. HH, sec. 3.2.2; see also Bylaws for KOR
Reporting, Inc., Ex. E-2, sec. 1.6.
\33\ See Rulebook, Ex. HH, sec. 3.2.3; see also Governance
Principles, Ex. D-1, sec. 3.4.1; KOR SEC SBSDR Disclosure Document
v1.2, Ex. GG-2, sec. 9.1.2.3.
\34\ See Rulebook, Ex. HH, sec. 3.2.2; see also Governance
Principles, Ex. D-1, sec. 3.2.
\35\ See Rulebook, Ex. HH, sec. 3.2.4; see also Governance
Principles, Ex. D-1, sec. 3.5; KOR SEC SBSDR Disclosure Document
v1.2, Ex. GG-2, sec. 9.1.2.4.
\36\ See Rulebook, Ex. HH, sec. 3.2.4; see also Governance
Principles, Ex. D-1, sec. 3.5; Narrative explaining fitness
standards of the Board, Ex. D-3, sec. 3.0; KOR SEC SBSDR Disclosure
Document v1.2, Ex. GG-2, sec. 9.1.2.4.
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According to KOR, the KOR Board's principal oversight functions are
to: (a) review, approve, and monitor KOR's major strategic financial
business activities and opportunities, including declarations of
dividends and major transactions; (b) review, approve and monitor the
KOR's annual budget; (c) review, monitor and take reasonable actions
with respect to KOR's financial performance; (d) review, assess, and
provide oversight of KOR's risk management practices, the integrity and
adequacy of its enterprise risk management program, which is designed
to identify, manage, and plan for its Security-based Swap Data
Repository, compliance, financial, operational, reputational, and
strategic and commercial risks; (e) select, evaluate and compensate the
Chief Compliance Officer and, if necessary, appoint a replacement; and
(f) review and monitor plans for the succession of the Chief Executive
Officer and other members of senior management.\37\
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\37\ See Rulebook, Ex. HH, sec. 3.1.1; see also Governance
Principles, Ex. D-1, sec. 2.0; KOR SEC SBSDR Disclosure Document
v1.2, Ex. GG-2, sec. 9.1.1.1.
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In addition, the application provides that the KOR Board is
responsible for the appointment and removal of the chief compliance
officer (``CCO'') and approval of CCO compensation, which is at the
discretion of the Board and effected by a majority vote.\38\ The CCO is
responsible for overseeing the KOR SBSDR Compliance Department and
ensuring compliance with the applicable rules.\39\ The CCO consults
with the CEO on the adequacy of resources and makes recommendations
where needed.\40\ The CCO has supervisory authority to inspect books
and records and interview KOR SBSDR employees. Upon identification of a
potential violation of any regulatory requirement or internal policy or
procedure, the CCO is responsible for taking steps to investigate and
remediate any such matter.\41\
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\38\ See Rulebook, Ex. HH, sec. 12.1; see also Governance
Principles, Ex. D-1, sec. 14.2.
\39\ See Rulebook, Ex. HH, sec. 12.2; see also Personnel
Qualification, Ex. P, sec. 2.2.
\40\ See Rulebook, Ex. HH, sec. 12.2.
\41\ See Rulebook, Ex. HH, sec. 12.2.
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According to KOR, the KOR Board has adopted a Conflict of Interest
Policy that incorporates various provisions of applicable corporate law
and other standards adopted by KOR to ensure that KOR Board and
committee decisions are not impacted by conflicts of interests.\42\
With regard to director conflicts of interest, the application provides
that a director conflict is present whenever the interests of KOR
compete with the interests of a director or any party associated with a
director and interfere with the director's ability to impartially vote
on the matter pending before the KOR Board.\43\ A director's interest
may be direct or indirect through business investment or on ``immediate
family member'' (defined as a person's spouse, domestic partner,
parents, stepparents, children, stepchildren, siblings, mothers and
fathers-in-law, sons and daughter-in-law and brothers and sisters-in-
law and anyone residing in such person's home
[[Page 64529]]
(other than a tenant or employee)).\44\ The application also provides
that any director who believes he or she may have a conflict of
interest relating to a matter pending before the KOR Board or any
Committee must provide written notification to the CCO, General
Counsel, the Board Chairman, and the CEO prior to consideration of the
matter by the KOR Board or Committee.\45\ The notice should include all
relevant material facts to enable the KOR Board or Board Committee, in
consultation with the CCO, General Counsel and outside legal counsel,
if necessary, to determine whether a conflict of interest exists.\46\
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\42\ See Rulebook, Ex. HH, sec 3.2.5; see also Board of
Directors Conflicts of Interest Policy, Ex. J-2, sec. 1.0;
Governance Principles, Ex. D-1, sec. 4.0; KOR SEC SBSDR Disclosure
Document v1.2, Ex. GG-2, sec. 9.1.2.5.
\43\ See Rulebook, Ex. HH, sec. 11.2; see also Board of
Directors Conflicts of Interest Policy, Ex. J-2, sec. 2.0.
\44\ See Board of Directors Conflicts of Interest Policy, Ex. J-
2, sec. 3.0.
\45\ See Board of Directors Conflicts of Interest Policy, Ex. J-
2, sec. 3.0.
\46\ See Board of Directors Conflicts of Interest Policy, Ex. J-
2, sec. 3.0.
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The application further provides that in the event the KOR Board or
Committee determines the director has a conflict of interest or the
appearance of a conflict of interest, the KOR Board or Committee, after
consultation with the General Counsel and outside legal counsel, if
necessary, shall determine the appropriate action to be taken.\47\ As a
general matter, KOR believes it is appropriate for a director to
abstain from voting on a matter in which he or she has an actual
conflict of interest or the appearance of a conflict of interest.\48\
The recusal from voting shall be mandatory when it is deemed
appropriate.\49\ In the event a director abstains because of a conflict
of interest, the abstention shall be noted in the minutes of the
meeting.\50\ In addition to this policy, directors who serve on any
committee established under KOR's rules must also follow the procedure
set forth in the applicable Rulebook.\51\
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\47\ See Board of Directors Conflicts of Interest Policy, Ex. J-
2, sec. 3.0.
\48\ See Board of Directors Conflicts of Interest Policy, Ex. J-
2, sec. 3.0.
\49\ See Board of Directors Conflicts of Interest Policy, Ex. J-
2, sec. 3.0.
\50\ See Board of Directors Conflicts of Interest Policy, Ex. J-
2, sec. 3.0.
\51\ See Board of Directors Conflicts of Interest Policy, Ex. J-
2, sec. 3.0.
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B. Access and Information Security
According to KOR, access to and usage of its SDR service will be
available to all market participants on a fair, open, and equal
basis.\52\ The application provides that KOR does not and will not
bundle or tie the offering of mandated regulatory services with
ancillary services offered by KOR or a KOR affiliate.\53\ Further, KOR
imposes the following qualification on clients of its services: (i) a
valid Legal Entity Identifier (``LEI''), (ii) execution of membership
documents, such as the KOR Universal Services Agreement (``KOR SA'')
\54\ and applicable Addendums, (iii) compliance with the KOR SBSDR
Rulebook and KOR Technical Specifications as published by KOR, and (iv)
successful passing of KOR Know Your Customer (KYC) procedures, which
include compliance with Applicable Law, specifically those related to
sanctions administered and enforced by the Office of Foreign Assets
Control of the U.S. Department of the Treasury (``OFAC'').\55\
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\52\ See Rulebook, Ex. HH, sec. 4.1; see also Access Limiting
Criteria, Ex. V, sec. 1.0; Client Access Requirements, Ex. W, sec.
2.1; Client Onboarding and Access Guide, Ex. X, sec. 1.0.
\53\ See Rulebook, Ex. HH, sec. 4.1; see also Access Limiting
Criteria, Ex. V, sec. 1.0; Client Access Requirements, Ex. W, sec.
2.1; Client Onboarding and Access Guide, Ex. X, sec. 1.0.
\54\ See KOR Universal Services Agreement, Ex. I-2.
\55\ See Rulebook, Ex. HH, sec. 4.1; see also Access Limiting
Criteria, Ex. V, sec. 1.0; Client Access Requirements, Ex. W, sec.
2.1; Client Onboarding and Access Guide, Ex. X, sec. 1.0; KOR SEC
SBSDR Disclosure Document v1.2, Ex. GG-2, sec. 1.1.
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To be granted access to the KOR system, receive trade information,
confirm or verify transactions, submit messages, or receive reports, a
market participant must be an onboarded user.\56\ Users are required to
maintain at least two Administrative Users on the KOR System;
Administrative Users are responsible for creating, managing, and
removing access to their company's Users and to other Clients who are
eligible to access the KOR System on behalf of the Client including
firms that have Third-party Client access.\57\
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\56\ See Rulebook, Ex. HH, sec. 4.0; see also Client Onboarding
and Access Guide, Ex. X, sec. 2.0.
\57\ See Rulebook, Ex. HH, sec. 4.5.1; see also Client
Onboarding and Access Guide, Ex. X, sec. 3.1; KOR SEC SBSDR
Disclosure Document v1.2, Ex. GG-2, sec. 1.5.1.
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To participate in the SDR services offered by KOR, each client will
be required to enter into a KOR SA; by entering into the KOR SA each
client agrees to be bound by the terms of the KOR SA, the KOR Rulebook,
and any published policies and guides.\58\ In addition, the KOR
Rulebook provides that where a client has authorized (i) a Delegated
Reporter (a Third-Party Reporter or Related Entity Client under the
same Parent) to submit on its behalf and access its data or (ii) a
Third-Party Client to access its data, but not submit on its behalf,
KOR will provide access to the Delegated Reporter or Third-Party Client
so long as it has executed the appropriate KOR SA and applicable
addendums and the client has granted permission through the Client
Portal.\59\ Any market participant that has executed a Client Agreement
may access SBSDR Data to which they are a party or for which they have
been granted access on behalf of a client.\60\ Access to the KOR System
is strictly limited to active Users with valid permissions created by
their Client's Administrative User.\61\ Once set up, Users will be
provided logins and the ability to access data in the KOR System.\62\
Access is driven off the Client's LEIs for which the User has been
associated.\63\ Users may be granted access to multiple LEIs under the
same Parent as related entities.\64\ Client's designated Administrative
Users are expected to maintain correct User access at all times.\65\ In
addition, following the end of each calendar quarter, all Clients will
have access to a report on current User access levels and a list of all
Clients to which they have granted access to their data.\66\ At least
one of the designated Administrative Users assigned to each Client must
review the listing of Users and other party access and confirm whether
access should be maintained, removed or changed and make the
appropriate updates.\67\ The KOR Rulebook also states that records of
all User access are maintained and available for review by the Client
and KOR Compliance at all time.\68\
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\58\ See Rulebook, Ex. HH, sec. 4.2; see also Client Access
Requirements, Ex. W, sec. 2.2; Client Onboarding and Access Guide,
Ex. X, sec. 3.0.
\59\ See Rulebook, Ex. HH, sec. 4.3, 4.4; see also Client Access
Requirements, Ex. W, sec. 2.3, 2.4.
\60\ See Rulebook, Ex. HH, sec. 4.5.2; see also Access Limiting
Criteria, Ex. V, sec. 1.0.
\61\ See Rulebook, Ex. HH, sec. 4.5.2; see also Access Limiting
Criteria, Ex. V, sec. 1.0.
\62\ See Rulebook, Ex. HH, sec. 4.5.2; see also Access Limiting
Criteria, Ex. V, sec. 1.0.
\63\ See Rulebook, Ex. HH, sec. 4.5.2; see also Access Limiting
Criteria, Ex. V, sec. 1.0.
\64\ See Rulebook, Ex. HH, sec. 4.5.2; see also Access Limiting
Criteria, Ex. V, sec. 1.0.
\65\ See Rulebook, Ex. HH, sec. 4.5.4; see also Client
Onboarding and Access Guide, Ex. X, sec. 3.1.
\66\ See Rulebook, Ex. HH, sec. 4.5.4.
\67\ See Rulebook, Ex. HH, sec. 4.5.4.
\68\ See Rulebook, Ex. HH, sec. 4.5.4.
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With respect to prohibiting or limiting a person's access to SDR
services, the KOR Rulebook outlines the process required for KOR to
decline, revoke, or suspend a user of SDR services.\69\ For example,
KOR's CCO may deny a client's access to the KOR system if required
pursuant to applicable law (e.g., OFAC or the direction of a
regulator), violation of KOR SBSDR Rules, or improper use of the
system.\70\ The KOR Rulebook provides that KOR
[[Page 64530]]
will notify the applicable regulator of such action.\71\ In addition,
any such clients would receive written notice containing the grounds
for determination and an opportunity to appeal the decision to the CCO
and KOR Board by written request.\72\ KOR may restore access to a
Client following approval from the CCO and/or KOR Board.\73\ The CCO
will consider the applicable law, regulatory requirements, and the
Market Participant's response to the cause of denial, revocation, or
suspension.\74\ In addition, all decisions will be documented when
determining whether to restore Client's access.\75\
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\69\ See Rulebook, Ex. HH, sec. 14.2; see also Denial,
Revocation, or Suspension of Client Access Policy, Ex. Y, sec. 2.2.
\70\ See Rulebook, Ex. HH, sec. 14.2; see also Denial,
Revocation, or Suspension of Client Access Policy, Ex. Y, sec. 2.2.
\71\ See Rulebook, Ex. HH, sec. 14.2; see also Denial,
Revocation, or Suspension of Client Access Policy, Ex. Y, sec. 2.2.
\72\ See Rulebook, Ex. HH, sec. 14.2; see also Denial,
Revocation, or Suspension of Client Access Policy, Ex. Y, sec. 2.2.
\73\ See Denial, Revocation, or Suspension of Client Access
Policy, Ex. Y, sec. 2.3.
\74\ See Denial, Revocation, or Suspension of Client Access
Policy, Ex. Y, sec. 2.3.
\75\ See Denial, Revocation, or Suspension of Client Access
Policy, Ex. Y, sec. 2.3.
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The KOR Rulebook provides that KOR SBSDR will conduct regular,
periodic, objective testing and review of its automated systems to
ensure that they are reliable, secure, and have adequate scalable
capacity.\76\ It also provides that KOR will conduct regular, periodic
testing and review of its business continuity-disaster recovery
capabilities.\77\ It also provides that KOR will, to the extent
practicable: (a) coordinate with Clients and service providers to
participate in synchronized testing in a manner adequate to enable
effective resumption of KOR SBSDR's fulfillment of its duties and
obligations following a disruption causing activation of KOR SBSDR's
Business Continuity and Disaster Recovery (BCDR) plan; (b) participate
in periodic, synchronized testing of its BCDR Plan and the BCDR plans
of its Clients, and the BCDR plans required, as appliable, by each
appropriate prudential regulator, the Financial Stability Oversight
Council, the Securities and Exchange Commission, the Department of
Justice or any other person deemed appropriate by the SEC; and (c)
ensure that its BCDR plan take into account the BCDR plans of its
telecommunications, power, water, and other essential service
providers.\78\
---------------------------------------------------------------------------
\76\ See Rulebook, Ex. HH, sec. 13.3.1.
\77\ See Rulebook, Ex. HH, sec. 13.3.1.
\78\ See Rulebook, Ex. HH, sec. 13.3.2.
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C. Acceptance and Use of SBS Data
According to KOR, data accepted and maintained by the SBSDR may not
be used for commercial or business purposes by the SBSDR or any of its
affiliated entities.\79\ KOR SBSDR has implemented adequate
``firewalls'' or controls to protect the reported SBSDR data required
to be maintained under SEC regulations from any improper commercial
use.\80\ The application provides that a Client that submits SBSDR data
maintained by the SBSDR may permit the commercial use by providing
express written consent. Such consent will not be a requirement to
report to the SBSDR.\81\ If such Client consent is given, KOR may not
make such consented data available for commercial use prior to its
public dissemination.\82\ KOR states that, in accordance with Exchange
Act Rule 13n-5(b)(5), it has established systems and User access
restrictions reasonably designed to prevent any provision in a valid
swap from being invalidated or modified through its verification or
recording process.\83\
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\79\ See KOR SEC SBSDR Disclosure Document v1.2, Ex. GG-2, sec.
5.0.
\80\ See KOR SEC SBSDR Disclosure Document v1.2, Ex. GG-2, sec.
5.0.
\81\ See KOR SEC SBSDR Disclosure Document v1.2, Ex. GG-2, sec.
5.0.
\82\ See KOR SEC SBSDR Disclosure Document v1.2, Ex. GG-2, sec.
5.0.
\83\ See Rulebook, Ex. HH, sec. 9.2; see also Data Invalidation
Policy, Ex. EE, sec. 1.0.
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KOR SBSDR uses the LEI and the Unique Trade Identifier
(``UTI'').\84\ Pursuant to KOR's rulebook, individuals not eligible for
an LEI should be reported using a Natural Person Identifier.\85\ KOR
states that if a security-based swap counterparty is not eligible to
receive an LEI as determined by the Global Legal Entity Identifier
System, such counterparty will be identified in all recordkeeping and
all Security-Based Swap Data reporting with a Natural Person
Identifier.\86\ KOR further provides that it is the duty of the
Reporting Side to always submit a unique and consistent Natural Person
Identifier.\87\ Pursuant to KOR's rulebook, to ensure that the
Reporting Side consistently submits a unique value for the identifier,
the Reporting Side must combine the LEI of the Reporting Side with the
natural person's email address associated with the National Person
Identifier.\88\ Each Client must maintain and renew its legal identity
identifier in accordance with the standards set by the Global Legal
Entity Identifier System.\89\
---------------------------------------------------------------------------
\84\ See Rulebook, Ex. HH, sec. 5.1.1, 5.1.2.
\85\ See Rulebook, Ex. HH, sec. 5.1.1.
\86\ See Rulebook, Ex. HH, sec. 5.3.1.
\87\ See Rulebook, Ex. HH, sec. 5.3.1.
\88\ See Rulebook, Ex. HH, sec. 5.3.1.
\89\ See Rulebook, Ex. HH, sec. 5.3.1.
---------------------------------------------------------------------------
The application provides that each swap will be identified in all
recordkeeping and all Security-Based Swap Data reporting by the use of
a UTI, which will be created, transmitted, and used for each swap.\90\
Each registered entity and swap counterparty will include the UTI for a
swap in all of its records and all of its Security-Based Swap Data
reporting concerning that swap, from the time it creates or receives
the UTI throughout the existence of the security-based swap and for as
long as any records are required by applicable law or regulation.\91\
Every submission to KOR SBSDR must contain the appropriate UTI,
otherwise the submission will be rejected. KOR SBSDR will validate the
format and uniqueness of every UTI.\92\ If a party submits the
incorrect UTI, pursuant to KOR's rulebook, they must ``error'' that UTI
and resubmit the swap as a new message with the correct UTI.\93\ When
the correct UTI is submitted it will be considered a new trade and, if
it is submitted after the required reporting timelines, it will be
classified as a late report.\94\
---------------------------------------------------------------------------
\90\ See Rulebook, Ex. HH, sec. 5.2.
\91\ See Rulebook, Ex. HH, sec. 5.2.
\92\ See Rulebook, Ex. HH, sec. 5.2.
\93\ See Rulebook, Ex. HH, sec. 5.2.
\94\ See Rulebook, Ex. HH, sec. 5.2.
---------------------------------------------------------------------------
The application provides that KOR has established procedures and
provides facilities for effectively resolving disputes over the
accuracy of the SBSDR Transaction Data and positions that are recorded
in the KOR SBSDR.\95\ When the Reporting Side does not agree with the
accuracy of the reporting of a swap in KOR Trade Repository, but is
prevented from amending the swap to what they believe to accurate, the
Client must (a) enter a ticket with KOR SBSDR support with the details
of the issue and (b) submit an allowed value per the KOR Technical
Specifications for the KOR SBSDR field that reflects the dispute.\96\
---------------------------------------------------------------------------
\95\ See Rulebook, Ex. HH, sec. 11.0; see also Dispute Policy,
Ex. CC, sec. 2.0.
\96\ See Rulebook, Ex. HH, sec. 11.0; see also Dispute Policy,
Ex. CC, sec. 2.0.
---------------------------------------------------------------------------
D. Fees
The application includes KOR's fee schedules.\97\ According to KOR,
fees are assessed in a consistent, non-preferential manner and are not
permitted to be used as a barrier to entry.\98\ KOR offers a
subscription model fee schedule which treats all submissions equally
regardless of reporting counterparty, asset class,
[[Page 64531]]
clearing status or execution.\99\ The application provides that KOR
will not offer preferential pricing arrangements to any Client on any
basis, including volume discounts or reductions unless such discounts
or reductions apply to all Clients uniformly and are not otherwise
established in a manner that would effectively limit the application of
such discount or reduction to a select number of Clients.\100\ In
addition, KOR represents in its rulebook that it ensures any dues,
fees, or other charges imposed by, and any discounts or rebates offered
by, its SBSDR are fair and reasonable and not unreasonably
discriminatory.\101\ KOR states that such dues, fees, other charges,
discounts, or rebates will be applied consistently across all
similarly-situated users of such SBSDR services, including, but not
limited to, market participants, market infrastructures (including
central counterparties), venues from which data can be submitted to the
SBSDR (including exchanges, security-based swap execution facilities,
electronic trading venues, and matching and confirmation platforms),
and third party service providers.\102\ All fees are fully disclosed
and available on the KOR SBSDR website.\103\ The fee schedule applies
until such time as the KOR Board determines otherwise and provides
clients at least one (1) month's notice for significant changes to
existing pricing or policy.\104\
---------------------------------------------------------------------------
\97\ See KOR SEC SBSDR Fee Schedule, Ex. M-1. Additionally, KOR
provides a fee schedule for KOR Users on its website at <a href="https://www.korfinancial.com/pricing">https://www.korfinancial.com/pricing</a>.
\98\ See Rulebook, Ex. HH, sec. 13.4; see also KOR SEC SBSDR
Disclosure Document v1.2, Ex. GG-2, sec. 8.0.
\99\ See KOR SEC SBSDR Fee Schedule, Ex. M-1, sec. 1.0; see also
Fee Schedule Rational and Differentiation, Ex. M-2, sec. 1.3.
\100\ See Rulebook, Ex. HH, sec. 13.4; see also KOR SEC SBSDR
Disclosure Document v1.2, Ex. GG-2, sec. 8.0.
\101\ See Rulebook, Ex. HH, sec. 13.4; see also KOR SEC SBSDR
Disclosure Document v1.2, Ex. GG-2, sec. 8.0.
\102\ See Rulebook, Ex. HH, sec. 13.4.
\103\ See Rulebook, Ex. HH, sec. 13.4; see also KOR SEC SBSDR
Disclosure Document v1.2, Ex. GG-2, sec. 8.0.
\104\ See KOR SEC SBSDR Fee Schedule, Ex. M-1, sec. 1.0.
---------------------------------------------------------------------------
In the application, KOR states that, as a real-time messaging-based
service, KOR assesses fees on a per message basis to align SBSDR
services and the expense to offer.\105\ All Reporting Clients are
assessed the same fee structure regardless of their pathway to KOR
SBSDR to ensure a competitive and level playing field.\106\ A
``Reporting Client'' means the reporting counterparty that has in place
a fully executed agreement and is liable for the fees incurred for the
use of KOR Services.\107\ The Reporting Client may delegate billing and
payments to another Client by authorizing either a Related Entity or
their Third-Party Reporter.\108\ The ``Related Entity'' refers to other
clients of KOR (i.e., KOR Counterparty Clients) within the same
corporate structure as the Reporting Client, creating a Client
Group.\109\ KOR will aggregate the fee liable activity for Related
Entities under a Client Group and provide a single invoice.\110\ A
``Third-Party Reporter'' refers to an entity that has a fully executed
Agreement with KOR and is facilitating reporting for a KOR Counterparty
Client.\111\ A Third-Party Reporter is not charged fees for the
activity of their customers, who are also KOR Counterparty Clients, but
may be assigned billing (receipt of invoices and payment
responsibilities) by KOR Counterparty Clients.\112\ When a Counterparty
Client makes a billing assignment to a Third-Party Reporter it is for
all billable activity related to use of KOR Services of that
Counterparty Client (including activity beyond what is associated to
the Third-Party Reporter) and Counterparty Clients may only assign
billing to a single Third-Party Reporter.\113\ The application provides
that reporting by Platforms which are Security-Based Swap Execution
Facilities or National Securities Exchanges are treated as messages
under a Third-Party Reporter whereby the Reporting Counterparty is
assessed KOR reporting fees and the Platform, by default, is not.\114\
A Platform may elect to assume direct billing responsibility for any
Reporting Counterparty that is a KOR Counterparty Client.\115\ If the
Reporting Counterparty on a Platform reported transaction is not a KOR
Counterparty Client, the Platform reporter will be billed for the
message activity which will be aggregated with all other Platform
billable message activity.\116\
---------------------------------------------------------------------------
\105\ See KOR SEC SBSDR Fee Schedule, Ex. M-1, sec. 1.0.
\106\ See KOR SEC SBSDR Fee Schedule, Ex. M-1, sec. 1.0.
\107\ See KOR SEC SBSDR Fee Schedule, Ex. M-1, sec. 2.1.
\108\ See KOR SEC SBSDR Fee Schedule, Ex. M-1, sec. 2.1, 2.2.
\109\ See KOR SEC SBSDR Fee Schedule, Ex. M-1, sec. 2.1, 2.2.
\110\ See KOR SEC SBSDR Fee Schedule, Ex. M-1, sec. 2.1, 2.2.
\111\ See KOR SEC SBSDR Fee Schedule, Ex. M-1, sec. 2.3.
\112\ See KOR SEC SBSDR Fee Schedule, Ex. M-1, sec. 2.3.
\113\ See KOR SEC SBSDR Fee Schedule, Ex. M-1, sec. 2.3.
\114\ See KOR SEC SBSDR Fee Schedule, Ex. M-1, sec. 2.4.
\115\ See KOR SEC SBSDR Fee Schedule, Ex. M-1, sec. 2.4.
\116\ See KOR SEC SBSDR Fee Schedule, Ex. M-1, sec. 2.4.
---------------------------------------------------------------------------
KOR SBSDR offers simplified subscription plans where each tier plan
limits the maximum number of messages a Reporting Client may report per
month.\117\ To calculate the calendar monthly fee, KOR totals all
eligible messages submitted in the prior month for each Counterparty
Client or Client Group. KOR provides a 10% monthly overage allowance
across all tiers for any given month per Counterparty Client or Client
Group.\118\ KOR's subscription plan is organized into ten (10) tiers.
Tier 1 allows for 100 monthly messages produced with a monthly fee of
$100; Tier 2 allows for 1,000 monthly messages produced with a monthly
fee of $500; Tier 3 allows for 10,000 monthly messages produced with a
monthly fee of $2,000; Tier 4 allows for 100,000 monthly messages
produced with a monthly fee of $6,000; Tier 5 allows for 1,000,000
monthly messages produced with a monthly fee of $15,000; Tier 6 allows
for 4,000,000 monthly messages produced with a monthly fee of $36,000;
Tier 7 allows for 9,000,000 monthly messages produced with a monthly
fee of $60,000; Tier 8 allows for 14,000,000 monthly messages produced
with a monthly fee of $95,000; Tier 9 allows for 19,000,000 monthly
messages produced with a monthly fee of $150,000; and Tier 10 allows
for 24,000,000 monthly messages produced with a monthly fee of
$220,000.\119\
---------------------------------------------------------------------------
\117\ See KOR SEC SBSDR Fee Schedule, Ex. M-1, sec. 3.0.
\118\ See KOR SEC SBSDR Fee Schedule, Ex. M-1, sec. 3.0.
\119\ See KOR SEC SBSDR Fee Schedule, Ex. M-1, sec. 3.0.
---------------------------------------------------------------------------
KOR SBSDR is a 100% cloud service leveraging the performance and
scale available through the cloud infrastructure.\120\ KOR incurs costs
through the accessing of its Clients' data hosted and used to generate
trade reports requested by Clients.\121\ The application states that
the KOR SBSDR Fee Schedule is designed for simplicity and flexibility,
modeling an expected mix of scheduled access to standard reports in
addition to reasonable use of ad-hoc reporting.\122\ KOR will monitor
the generation of reports across each Client and KOR will provide
advice when it observes use that exceeds standard fair allowances.\123\
KOR states that should a Client need continued reports at a sustained
activity level higher than expected, a move to a higher
[[Page 64532]]
fee tier may be deemed appropriate.\124\ KOR will generate invoices by
the fifth (5th) day of every calendar month for the prior month's
activity.\125\ The billing currency is USD ($) and invoices must be
paid in USD.\126\ Invoices are payable within 45 days upon
receipt.\127\ Accounts not paid within terms are subject to a 1.5%
monthly finance charge.\128\ KOR SBSDR will accept and process billing
adjustments up to 45 days after the invoice date.\129\ Adjustment
requests received after the 45-day period will not be accepted by KOR
SBSDR.\130\ Approved adjustments will be applied as credits and appear
on the next billing cycle as a separate line item.\131\
---------------------------------------------------------------------------
\120\ See KOR SEC SBSDR Fee Schedule, Ex. M-1, sec. 3.2.
\121\ See KOR SEC SBSDR Fee Schedule, Ex. M-1, sec. 3.2.
\122\ See KOR SEC SBSDR Fee Schedule, Ex. M-1, sec. 3.2.
\123\ See KOR SEC SBSDR Fee Schedule, Ex. M-1, sec. 3.2.
\124\ See KOR SEC SBSDR Fee Schedule, Ex. M-1, sec. 3.2.
\125\ See KOR SEC SBSDR Fee Schedule, Ex. M-1, sec. 5.0.
\126\ See KOR SEC SBSDR Fee Schedule, Ex. M-1, sec. 5.0.
\127\ See KOR SEC SBSDR Fee Schedule, Ex. M-1, sec. 5.0.
\128\ See KOR SEC SBSDR Fee Schedule, Ex. M-1, sec. 5.0.
\129\ See KOR SEC SBSDR Fee Schedule, Ex. M-1, sec. 5.0.
\130\ See KOR SEC SBSDR Fee Schedule, Ex. M-1, sec. 5.0.
\131\ See KOR SEC SBSDR Fee Schedule, Ex. M-1, sec. 5.0.
---------------------------------------------------------------------------
E. Recordkeeping
The KOR Rulebook provides that KOR will maintain transaction data
and related identifying information for not less than five years after
the applicable security-based swap expires and historical positions for
not less than five years: (a) in a place and format that is readily
accessible and usable to the Commission and other persons with
authority to access or view such information, and (b) in an electronic
format that is non-rewriteable and non-erasable.\132\
---------------------------------------------------------------------------
\132\ See Rulebook, Ex. HH, sec. 9.4; see also KOR SEC SBSDR
Disclosure Document v1.2, Ex. GG-2, sec. 7.4.4.
---------------------------------------------------------------------------
F. Disclosure
KOR publishes a disclosure document to provide a summary of
information regarding its service offerings and the SBS data it
maintains.\133\ Specifically, the disclosure document sets forth a
description of the following: (i) criteria for providing access to KOR
SBSBR; (ii) criteria for market participants seeking to connect to the
SBSDR; (iii) policies and procedures regarding the SBSDR's safeguarding
of SBSDR data and operational reliability to protect the
confidentiality and security of SBSDR data; (iv) policies and
procedures to protect the privacy of SBSDR data; (v) policies and
procedures regarding the SBSDR's non-commercial and/or commercial use
of SBSDR data; (vi) dispute resolution procedures; (vii) description of
SBSDR services; (viii) the SBSDR fee schedule; and (ix) the SBSDR's
governance arrangements.\134\
---------------------------------------------------------------------------
\133\ See KOR SEC SBSDR Disclosure Document v1.2, Ex. GG-2.
\134\ See KOR SEC SBSDR Disclosure Document v1.2, Ex. GG-2.
---------------------------------------------------------------------------
G. Regulatory Reporting and Public Dissemination
As a registered SDR, KOR would carry out an important role in the
regulatory reporting and public dissemination of SBS transactions. As
noted above, KOR 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 any SBS asset class or
classes for which it intends to accept transaction reports.\135\
Therefore, KOR does not need to include materials in its application
explaining how it would comply with the provisions of the SBS Reporting
Rules described in the no-action statement.\136\ Instead, KOR may rely
on its discussion about how it complies with comparable CFTC
requirements pertaining to regulatory reporting and public
dissemination of swap transactions.
---------------------------------------------------------------------------
\135\ See supra notes 28-29 and accompanying text.
\136\ However, the KOR application includes provisions
explaining how KOR would require users to identify SBS, as required
by Rule 901(c)(1) of Regulation SBSR. See Rulebook, Ex. HH, sec. 5.4
(regarding Unique Product Identifiers). The KOR application also
includes provisions explaining how KOR would comply with the
conditions to the no-action statement included in the ANE Adopting
Release.
---------------------------------------------------------------------------
IV. Solicitation of Comments
Interested persons are invited to submit written data, views, and
arguments concerning KOR's Form SDR, including whether KOR 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
<bullet> Use the Commission's internet comment form (<a href="https://www.sec.gov/rules-regulations/how-submit-comment">https://www.sec.gov/rules-regulations/how-submit-comment</a>); or
<bullet> Send an email to <a href="/cdn-cgi/l/email-protection#dba9aeb7bef6b8b4b6b6beb5afa89ba8beb8f5bcb4ad"><span class="__cf_email__" data-cfemail="80f2f5ece5ade3efedede5eef4f3c0f3e5e3aee7eff6">[email protected]</span></a>. Please include
File Number SBSDR-2023-01 on the subject line.
Paper Comments
<bullet> 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-2023-01. 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 (<a href="https://www.sec.gov/rules/other.shtml">https://www.sec.gov/rules/other.shtml</a>).
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 a.m. and 3
p.m.
Do not include personal identifiable information in submissions;
you should submit only information that you wish to make available
publicly. We may redact in part or withhold entirely from publication
submitted material that is obscene or subject to copyright protection.
All submissions should refer to File Number SBSDR-2023-01 and should be
submitted on or before August 28, 2024.
By the Commission.
Sherry R. Haywood,
Assistant Secretary.
[FR Doc. 2024-17423 Filed 8-6-24; 8:45 am]
BILLING CODE 8011-01-P
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