CFTC Substituted Compliance Determinations and No-Action Letters

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On December 20, 2013, the Commodity Futures Trading Commission (“CFTC”) approved substituted compliance in the European Union and five other jurisdictions for a range of “entity-level” and “transaction-level” requirements of Dodd-Frank.[1]  Pursuant to a substituted compliance determination, certain swap counterparties generally may comply with the requirements of a jurisdiction (e.g., those of the European Market Infrastructure Regulation in Europe) in lieu of comparable Dodd-Frank requirements.

These substituted compliance determinations appear to have been issued in connection with the expiration on December 21, 2013 of substantial portions of the July 21, 2013 CFTC cross-border exemptive order (the “Exemptive Order”),[2] which generally delayed application of the entity-level and transaction-level requirements of Dodd-Frank to certain non-U.S. swap counterparties.  The recent substituted compliance determinations covered the following requirements:

Entity-Level Requirements: Chief Compliance Officer (regulation 3.3); Swap Data Recordkeeping (regulations 23.201, 23.203); Risk Management Program (regulation 23.600); Monitoring of Position Limits (regulation 23.601); Diligent Supervision (regulation 23.602); Business Continuity (regulation 23.603); Research Conflicts (regulation 23.605(c)); Clearing Conflicts (regulation 23.605(d)); Undue Influence (regulation 23.605(e)); Availability of Information for Disclosure (regulation 23.606); Clearing Member Risk Management (regulation 23.609).

Transaction-Level Requirements: Swap Confirmation (regulation 23.501); Portfolio Reconciliation (regulation 23.502); Portfolio Compression (regulation 23.503); certain provisions of Daily Trading Records (regulation 23.202); certain provisions of Swap Trading Relationship Documentation (regulation 23.504).

Also on December 20, 2013, the Division of Swap Dealer and Intermediary Oversight of the CFTC (the “Division”) issued two no-action letters related to the application of certain entity-level requirements.[3]  Pursuant to one of these letters, the Division stated that it will not recommend that the CFTC take enforcement action prior to March 3, 2014 against a non-U.S. swap dealer established in the European Union or four other jurisdictions for failure to comply with certain entity-level requirements of Dodd-Frank, specifically Risk Management Program (regulation 23.600(c)(2)) or Restrictions on Counterparty Clearing Relationships (regulation 23.608).[4]  The Division noted that it was providing this relief for swap dealers in those jurisdictions to have “an opportunity to prepare for compliance” with the relevant regulations.

Under the other no-action letter, the Division stated that it will not recommend that the CFTC take enforcement action against a non-U.S. swap dealer established in the European Union or four other jurisdictions (generally, unless its ultimate parent is a U.S. swap dealer) for failure to comply with: (i) the reporting requirements with respect to its swaps with a non-U.S. counterparty that, generally, is not guaranteed by a U.S. person until December 1, 2014 (or, if earlier, 30 days after the issuance of a relevant substituted compliance determination); and (ii) the reporting requirements with respect to its swaps with a non-U.S. counterparty that, generally, is guaranteed by a U.S. person until March 3, 2014 or April 2, 2014 (depending on when the swap was entered into).[5]

[1] See, e.g., Comparability Determination for the European Union: Certain Transaction-Level Requirements, 78 Fed. Reg. 78,878 (December 27, 2013).

The “entity-level” requirements relate to: (i) capital adequacy; (ii) chief compliance officer; (iii) risk management; (iv) swap data recordkeeping; (v) swap data repository reporting; and (vi) physical commodity large swaps trader reporting.

The “transaction-level” requirements include: (i) required clearing and swap processing; (ii) margining (and segregation) for uncleared swaps; (iii) mandatory trade execution; (iv) swap trading relationship documentation; (v) portfolio reconciliation and compression; (vi) real-time public reporting; (vii) trade confirmation; (viii) daily trading records; and (ix) external business conduct standards.

[2] Exemptive Order Regarding Compliance with Certain Swap Regulations, 78 Fed. Reg. 43,785 (July 22, 2013).

[3] CFTC Letter No. 13-78, Re: Time-Limited No-Action Relief from Certain Entity-Level Internal Business Conduct Requirements for Certain Swap Dealers and Major Swap Participants Established under the Laws of Australia, Canada, the European Union, Japan, and Switzerland (December 20, 2013); CFTC Letter No. 13-75, Re: Time-Limited No-Action Relief from Certain Requirements of Part 45 and Part 46 of the Commission’s Regulations for Certain Swap Dealers and Major Swap Participants Established under the Laws of Australia, Canada, the European Union, Japan or Switzerland (December 20, 2013).

[4] See CFTC Letter No. 13-78.  In this letter, the Division also stated that it will not recommend that the CFTC take enforcement action prior to March 3, 2014 against a non-U.S. swap dealer established in Switzerland for failure to comply with the entity-level requirements of Dodd-Frank relating to Clearing Member Risk Management (regulation 23.609).

[5] See CFTC Letter No. 13-75.