Derivatives

By Eric Peterman and Adia Goss

Pursuant to a No-Action Letter dated April 9, 2013, the Commodity Futures Trading Commission (the “CFTC”) extended certain of the dates by which a swap counterparty that is not a swap dealer (“SD”) or major swap participant (“MSP”) must comply with its swap data reporting requirements, as set forth in Parts 43, 45 and 46 of the Commodity Exchange Act (the “CEA”).  As required by Title VII of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Dodd-Frank Act”), Part 43 establishes rules for the real-time public reporting of swap transaction data, Part 45 establishes swap data recordkeeping rules and rules for reporting swap transaction data to a registered swap data repository (“SDR”) and Part 46 establishes swap data recordkeeping and reporting rules for historical swaps.  Prior to the issuance of the No-Action Letter, the compliance date for such reporting requirements was April 10, 2013.  The new compliance dates are as follows:
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By Eric J. Peterman and Adia Goss

On July 24, 2012, the Commodity Futures Trading Commission (the “CFTC”) proposed new rules to require certain credit default swaps (“CDS”) and interest rate swaps (“IRS”) to be cleared by registered derivatives clearing organizations (“DCOs”).  On August 7, 2012 the CFTC issued proposed rules that specified the first determination of classes of swaps to be subject to mandatory clearing under the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Dodd-Frank Act”).  A final rule was issued on December 13, 2012, and becomes effective on February 11. 2013.  Under the rules, market participants would be required to submit a swap that is identified in the rules as being subject to clearing by a DCO as soon as technologically practicable and no later than the end of the day of execution.  In a separate rule-making, the CFTC also finalized regulations on the timing of when market participants will need to comply with the new rules.

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By Hyun K. Kim

Section 731 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank”) adds Section 4s(h) to the Commodity Exchange Act (the “CEA”), which imposes business conduct standards for swap dealers (“SDs”) and major swap participants (“MSPs”) dealing with counterparties generally and with “Special Entities”[1] specifically.  The Commodity Futures Trading Commission (the “CFTC”) has adopted a final rule regarding these business conduct standards, which was published in the Federal Register on February 17, 2012.  The final rule became effective on April 17, 2012 (the “Effective Date”).  SDs/MSPs must comply with the final rule on the later of 180 days after the Effective Date or the date on which SDs/MSPs are required to apply for registration.

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By Hyun K. Kim

On April 18, 2012, the Commodity Futures Trading Commission (the “CFTC”) and the Securities and Exchange Commission (the “SEC,” and together with the CFTC, the “Commissions”) adopted the much-anticipated joint final rules further defining “swap dealer,” “major swap participant,” “security-based swap dealer,” and “major security-based swap participant” under the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank”).

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By Adia M. Goss

Pursuant to Section 737 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank”) and Section 4(a) of the Commodity Exchange Act, the Commodity Futures Trading Commission (the “CFTC”) issued a final rule to establish position limits for “28 exempt and agricultural commodity derivatives, including futures and options contracts and the physical commodity swaps that are economically equivalent.”[1]  The final rule also implements a new statutory definition of “bona fide hedging” transactions and revises the standards for aggregation of positions.  This rule is effective as of January 17, 2012.

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