“Swap” definition kicks off compliance countdown.
The Commodity Futures Trading Commission (CFTC) and the Securities and Exchange Commission (SEC) have finally decided what a “swap” is (referred to as the Swap Definition Rule). And it seems there’s not a lot that’s not a swap: the term “swap” includes almost all derivatives except exchange-traded futures. That includes FX swaps, forwards, options and NDFs, cross-currency swaps, FRAs, commodity options, and more. That’s right: so far, no exemption for FX swaps and forwards. However, the Treasury still has the authority to exempt FX swaps and forwards, and according to people in the know, it is expected to do so “soon.”
The compliance clock – now ticking!
DLA Piper, a law firm whose representative Marc Horwitz has spoken to a few of our peer groups in the past, notes in an alert: “The Swap Definition Rule will become effective 60 days after it is published in the Federal Register. It is the most important rule the CFTC has adopted under the Dodd-Frank Act because it begins the countdown for compliance with an array of other important rules,” including:
• Swap dealer (SD) and major swap participant (MSP) registration;
• Real-time reporting, including by swap execution facilities (SEFs);
• Swap data recording and record keeping, including for all non-SD/MSP counterparties
End-user exemption:
The CFTC also finalized the end-user clearing exemption which will apply to:
• Non-financial entities that are using the swap for “hedging or mitigating commercial risk;”
• “Small financial institutions” with total assets of $10 billion or less.
Note that reporting requirements will apply, including an annual filing by the end-user claiming the exemption (unless the reporting party provides certain details on a swap-by-swap basis).
For more detail: here is a link to our friends at DLA Piper: