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Issue 575, 9 July 2015 

ASIC derivative transaction reporting: update and reminder 

In ASFA Actions Issue 537 dated 26 May 2014, 551 dated 24 November 2014 and 553 dated 15 December 2014, ASFA informed members of the requirements of the ASIC Derivative Transaction Rules (Reporting) 2013, and the likelihood that the government would allow phase 3B reporting entities (funds that have derivative exposures of less than $5 billion) to avail themselves of ‘one-sided reporting’ relief. 

Update 

The Treasury has released draft regulations dated 28 May 2015, which will implement the one-sided reporting regime. Submissions on these regulations closed on 26 June 2015. 

Under the proposed regulations, phase 3B reporting entities may not need to report trades where the counterparty reports the trade. 

If dealing with an Australian counterparty, the exemption is available where either the counterparty is required to report under Australian reporting rules (and is not exempt from reporting) or the counterparty actually reports in accordance with Australian reporting rules. 

However, where the counterparty is a foreign entity, the relief is only available where: 

In instances where the counterparty also has derivative exposures of less than $5 billion, an agreement will need to be reached by the two parties within the transaction, as to who has the reporting responsibility. 

The regulations also provide clarification for entities that may be phase 3A reporting entities during one period (such as, they have over the counter (OTC) derivative exposures of more than $5 billion during that period), but are phase 3B reporting entities during another period (OTC derivative exposures reduced to less than $5 billion) and visa versa. 

The draft regulations do not use the term ‘phase 3B’, rather they apply the ‘under A$5 billion’ test at the end of each calendar quarter, which is the same test as the phase 3B test. If an entity satisfies the test for two successive quarters then it qualifies for the relief until it fails the test for two successive quarters. Once it fails for two successive quarters, the entity will be considered to be a phase 3A reporting entity and the full reporting obligations will apply. 

The regulations also provide a further carve out from reporting. Entities will be exempt from the reporting requirements for classes of derivatives that are not covered by an authorisation under their Australian financial services licence. 

 

Reminder 

As reported in ASFA Action 551 dated 24 November 2004, it was essential, at that time, to determine if funds were phase 3A or phase 3B reporting entities, as phase 3A reporting entities had to commence reporting from 13 April 2015. 

Phase 3B reporting entities that do not, or cannot, avail themselves of the single-sided reporting relief will need to commence reporting from 12 October 2015. 

ASFA have received the following message from ASIC: 

“ASIC understands that many phase 3B entities may still have a residual reporting obligation even once the [phase 3B single-sided reporting] regulation is in place, and ASIC’s expectation is that firms will be able to meet the 12 October 2015 reporting deadline for those trades. ASIC has noted that there is no appetite at ASIC for granting any transitional relief prior to 12 October 2015 for firms that only identify at the last minute that they may have some trades to report that are not exempted from reporting by the single-sided reporting regulation. ASIC notes that the changes that ASIC recently made to the delegated reporting aspects of the trade reporting rules were designed to facilitate reporting, and if there is any uncertainty about whether trades will be exempted by the regulation, ASIC has stated that firms should now be starting to put delegated reporting agreements in place.”. 

If funds do need to report, they will need to register and ‘on-board’ with DTCC Data Repository (Singapore) PTE Ltd (DTCC), the only trade repository currently licenced in Australia. This is a complex process and is likely to take months. 

The responsibility for reporting rests with the trustee, therefore funds need to be prepared for the new reporting regime, and have an appropriate control environment in place for example monitoring of ongoing reporting and key reconciliations. 

ASFA understands that trustees are most likely to have issues with foreign counterparties who may report trades in their jurisdiction but not ‘tag’ them to Australia. It must be noted that trading in foreign exchange OTC derivatives need to be reported. 

To register your intent to on-board with DTCC, or if you have any questions, please contact Oliver Williams of DTCC directly. If you have further questions on trade reporting please contact David Graus. 

 

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