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Joint Dissenting Statement Concerning Modifications to Previously-Adopted Regulation SBSR

Commissioners Daniel M. Gallagher and Michael S. Piwowar

Feb. 11, 2015

On January 14, 2015, a majority of the Commission adopted Regulation SBSR over our dissents.  These new rules, however, were only made publicly available today.  The reason for this delay is that shortly after the Commission vote, SEC staff discovered that an extensive comment letter related to Regulation SBSR was inadvertently left out of the publicly available comment file.  As result, this letter was neither considered by staff in developing their recommendation, nor published on the SEC’s website for the benefit of the general public.  This comment letter covered a range of key issues in Regulation SBSR, and was submitted by an organization whose membership will be responsible for reporting nearly all security-based swaps subject to reporting under Regulation SBSR.

The innocent nature of this mistake does not alter the fact that a fully transparent public comment process is the foundation of the SEC’s rulemaking process.  This process requires us to consider the comments submitted, as well as to publish those comments so that the public can analyze and respond to the arguments made.  That is why we requested that the Commission respond to the newly discovered comment letter by publishing its contents and re-opening the comment period for Regulation SBSR.  This would have afforded the same consideration provided to all other comment letters for Regulation SBSR.   

Unfortunately, the Commission instead is publishing the previously adopted release, modified to include references to the omitted comment letter.  We cannot support the publication of this modified rulemaking release, as it glosses over a significant failure of our internal processes.   Therefore, we continue to dissent on the substance of Regulation SBSR for the reasons set forth in our original dissenting statements,[1] and we now must dissent with respect to this process. 

[1] See Dissenting Statements at Open Meeting Concerning Rules Regarding Security-Based Swap Data Repositories and Regulation SBSR by Commissioners Gallagher and Piwowar, available at and, respectively.

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