# CFTC Letter No. 12-21: Time Limited No-action Relief: Foreign Exchange Swaps and Foreign Exchange Forwards Not to be Considered in Calculating Aggregate Gross Notional Amount for Purposes of Swap Dealer De Minimis Exception or in Calculatin..

> Federal · Agency guidance · In force

URL: https://www.frixlaw.com/law-library/statutes/CFTC_L12_21

## Section

- **Citation:** CFTC Letter No. 12-21
- **Heading:** Time Limited No-action Relief: Foreign Exchange Swaps and Foreign Exchange Forwards Not to be Considered in Calculating Aggregate Gross Notional Amount for Purposes of Swap Dealer De Minimis Exception or in Calculatin..
- **Jurisdiction:** Federal
- **Kind:** Agency guidance
- **Status:** In force
- **Text as of:** August 14, 2026
- **Source:** Compiled text
- **Location:** CFTC Staff Letters (2008-present) / Time Limited No-action Relief: Foreign Exchange Swaps and Foreign Exchange Forwards Not to be Considered in Calculating Aggregate Gross Notional Amount for Purposes of Swap Dealer De Minimis Exception or in Calculatin...

## Text

Summary: Time Limited No-action Relief: Foreign Exchange Swaps and Foreign Exchange Forwards Not to be Considered in Calculating Aggregate Gross Notional Amount for Purposes of Swap Dealer De Minimis Exception or in Calculating Substantial Position in Swaps or Substantial Counterparty Exposure for Purposes of the Major Swap Participant Definition. Time-Limited No-action Relief for persons that meet the definitions of Commodity Pool Operators and Commodity Trading Advisors Solely as a Result of their Foreign Exchange Swap and Foreign Exchange Forward Activities.

U.S. COMMODITY FUTURES TRADING COMMISSION
Three Lafayette Centre
1155 21st Street, NW, Washington, DC 20581
Telephone: (202) 418-5977
Facsimile: (202) 418-5407
www.cftc.gov
Division of
Swap Dealer and
Intermediary Oversight

CFTC Letter No. 12-21
No-Action
October 12, 2012
Division of Swap Dealer and Intermediary Oversight

Re: Time Limited No-action Relief: Foreign Exchange Swaps and Foreign Exchange
Forwards Not to be Considered in Calculating Aggregate Gross Notional Amount for
Purposes of Swap Dealer De Minimis Exception or in Calculating Substantial Position in
Swaps or Substantial Counterparty Exposure for Purposes of the Major Swap Participant
Definition;

Time-Limited No-action Relief for persons that meet the definitions of Commodity Pool
Operators and Commodity Trading Advisors Solely as a Result of their Foreign Exchange
Swap and Foreign Exchange Forward Activities

Ladies and Gentlemen:

This letter is in response to requests from multiple parties received by the Division of
Swap Dealer and Intermediary Oversight (“Division”) of the Commodity Futures Trading
Commission (“Commission”) requesting relief from the obligation to include foreign exchange
swaps and foreign exchange forwards in the calculation of a person’s substantial position in
swaps or substantial counterparty exposure for purposes of determining if a person is a major
swap participant under Commission Regulatio
and Intermediary Oversight (“Division”) of the Commodity Futures Trading
Commission (“Commission”) requesting relief from the obligation to include foreign exchange
swaps and foreign exchange forwards in the calculation of a person’s substantial position in
swaps or substantial counterparty exposure for purposes of determining if a person is a major
swap participant under Commission Regulation 1.3(hhh),1 or the calculation of the aggregate
gross notional amount of swaps connected with swap dealing activity for purposes of
determining when and if a person is no longer entitled to rely on the de minimis exception from
swap dealer registration set forth in Commission Regulation 1.3(ggg)(4)2 and must register with
the Commission as a swap dealer, pending a determination by the Secretary of the Treasury
(“Secretary”) to exempt foreign exchange swaps and foreign exchange forwards from the
Commodity Exchange Act (“CEA”). This letter also is in response to requests that, pending such
determination, persons who would meet the definitions of the terms commodity pool operator
(“CPO”) and commodity trading advisor (“CTA”) in the CEA solely as a result of their foreign
exchange swap and forward activity not be required to register in those capacities.

1 17 CFR 1.3(hhh), 77 FR 30596, 30746 (May 23, 2012).

2 17 CFR 1.3(ggg)(4), 77 FR at 30744.

2

The CEA, as amended by the Dodd-Frank Act, provides that “foreign exchange
forwards”3 and “foreign exchange swaps”4 shall be considered “swaps” under the swap
definition unless the Secretary issues a written determination that either foreign exchange swaps,
foreign exchange forwards, or both: (i) should not be regulated as swaps; and (ii) are not
structured to evade the Dodd-Frank Act in violation of any rule promulgated by the Commission
pursuant to section 721(c) of the Dodd-Frank Act.5 The Secretary published in the Federal
Register on October 28, 2010, a request for comment as to wheth
itten determination that either foreign exchange swaps,
foreign exchange forwards, or both: (i) should not be regulated as swaps; and (ii) are not
structured to evade the Dodd-Frank Act in violation of any rule promulgated by the Commission
pursuant to section 721(c) of the Dodd-Frank Act.5 The Secretary published in the Federal
Register on October 28, 2010, a request for comment as to whether an exemption from the swap
definition for foreign exchange swaps, foreign exchange forwards, or both, is warranted, and on
the application of the statutory factors that the Secretary must consider in making a
determination regarding whether to exempt these products.6 Subsequently, the Secretary
published in the Federal Register on May 5, 2011, a proposed determination to exempt both
foreign exchange swaps and foreign exchange forwards from the definition of the term “swap” in
the CEA.7 A final determination to exempt has not yet been issued by the Secretary.

Pursuant to their authority under the Dodd-Frank Wall Street Reform and Consumer
Protection Act (“Dodd-Frank Act”),8 the Commission and the Securities and Exchange
Commission (“SEC”) adopted joint rules to explicitly define the term “swap” to include foreign

3 A foreign exchange forward is defined in the CEA as “a transaction that solely involves the exchange of two
different currencies on a specific future date at a fixed rate agreed upon on the inception of the contract covering the
exchange.” CEA section 1a(24), 7 U.S.C. 1a(24).

4 A foreign exchange swap is defined as in the CEA as follows:
a transaction that solely involves—
(A) an exchange of 2 different currencies on a specific date at a fixed rate that is agreed
upon on the inception of the contract covering the exchange; and
(B) a reverse exchange of the 2 currencies described in subparagraph (A) at a later date and at a fixed rate
that is agreed upon on the inception of the contract covering the exchange
he CEA as follows:
a transaction that solely involves—
(A) an exchange of 2 different currencies on a specific date at a fixed rate that is agreed
upon on the inception of the contract covering the exchange; and
(B) a reverse exchange of the 2 currencies described in subparagraph (A) at a later date and at a fixed rate
that is agreed upon on the inception of the contract covering the exchange.

CEA section 1a(25), 7 U.S.C. 1a(25).

5 See section 1a(47)(E)(i) of the CEA, 7 U.S.C. 1a(47)(E)(i). Under the Dodd-Frank Act, if foreign exchange
forwards or foreign exchange swaps are no longer considered swaps due to a determination by the Secretary,
nevertheless, certain provisions of the CEA added by the Dodd-Frank Act would continue to apply to such
transactions. Specifically, those transactions still would be subject to certain requirements for reporting swaps, and
swap dealers and major swap participants engaging in such transactions still would be subject to certain business
conduct standards. See, e.g., sections 1a(47)(E)(iii) and (iv) of the CEA, 7 U.S.C. 1a(47)(E)(iii) and (iv) (reporting
and business conduct standards, respectively). In addition, a determination by the Secretary does not exempt any
foreign exchange forward or foreign exchange swap traded on a designated contract market or a swap execution
facility, or cleared by a derivatives clearing organization, from any applicable antifraud or anti-manipulation
provision under the CEA. See sections 1a(47)(F)(i) and 1b(c) of the CEA, 7 U.S.C. 1a(47)(F)(i) and 1b(c). Nor
does it affect the CFTC’s jurisdiction over retail foreign currency agreements, contracts, or transactions pursuant to
section 2(c)(2) of the CEA, 7 U.S.C. 2(c)(2). See section 1a(47)(F)(ii) of the CEA, 7 U.S.C. 1a(47)(F)(ii).

6 See Determinations of Foreign Exchange Swaps and Forwards, 75 FR 66829 (Oct. 28, 2010)
tions 1a(47)(F)(i) and 1b(c) of the CEA, 7 U.S.C. 1a(47)(F)(i) and 1b(c). Nor
does it affect the CFTC’s jurisdiction over retail foreign currency agreements, contracts, or transactions pursuant to
section 2(c)(2) of the CEA, 7 U.S.C. 2(c)(2). See section 1a(47)(F)(ii) of the CEA, 7 U.S.C. 1a(47)(F)(ii).

6 See Determinations of Foreign Exchange Swaps and Forwards, 75 FR 66829 (Oct. 28, 2010).

7 See Determination of Foreign Exchange Swaps and Foreign Exchange Forwards Under the Commodity Exchange
Act, Notice of Proposed Determination, 76 FR 25774 (May 5, 2011) (“Notice of Proposed Determination”). The
comment period on the Secretary’s proposed determination closed on June 6, 2011.

8 See section 712(d) of the Dodd-Frank Act.

3
exchange forwards and foreign exchange swaps (as those terms are defined in the CEA), in order
to include in one rule the definitions of those terms and the related regulatory authority with
respect to foreign exchange forwards and foreign exchange swaps.9 The final rules incorporate
the provision of the Dodd-Frank Act that foreign exchange forwards and foreign exchange swaps
will no longer be considered swaps if the Secretary issues the written determination described
above to exempt such products from the swap definition. They also reflect the continuing
applicability of certain reporting requirements and business conduct standards in the event that
the Secretary makes such a determination. These joint final rules become effective on October
12, 2012.

After the October 12, 2012 effective date, all swaps entered into by a person in
connection with the person’s swap dealing activities are relevant in determining whether the
person is within the swap dealer definition and therefore must register as a swap dealer. Also,
beginning on October 12, 2012 a person must begin to calculate whether it is within the
definition of major swap participant in Commission Regulation 1.3(hhh)
ive date, all swaps entered into by a person in
connection with the person’s swap dealing activities are relevant in determining whether the
person is within the swap dealer definition and therefore must register as a swap dealer. Also,
beginning on October 12, 2012 a person must begin to calculate whether it is within the
definition of major swap participant in Commission Regulation 1.3(hhh). This would include
foreign exchange swaps and foreign exchange forwards, unless the Secretary determines to issue
the written determination described above and such determination becomes effective before
October 12, 2012.10 Similarly, among the changes made by the Dodd-Frank Act to the CEA
were to include within the CPO definition the operator of a collective investment vehicle that
trades swaps, and to include within the CTA definition a person who provides advice concerning
swaps,11 which in both cases would include foreign exchange forwards and foreign exchange
swaps absent a determination by the Secretary described above, and may require registration in
those capacities absent an exemption or exclusion.

Several parties have commented that for a number of parties who are solely or primarily
engaged in foreign exchange swap and forward activity, whether they will be required to apply to
be registered as swap dealers or major swap participants will be dependent upon whether the
Secretary issues a final determination to exempt foreign exchange swaps and forwards. If the
Secretary does so before October 12, 2012, such parties would not be required to apply to be
registered
marily
engaged in foreign exchange swap and forward activity, whether they will be required to apply to
be registered as swap dealers or major swap participants will be dependent upon whether the
Secretary issues a final determination to exempt foreign exchange swaps and forwards. If the
Secretary does so before October 12, 2012, such parties would not be required to apply to be
registered. If the Secretary does so shortly after October 12, 2012, these parties state that it is
unclear whether or not such parties would still be required to apply to be registered due to their
activities prior to the Secretary’s determination to exempt such instruments by a deadline which

9 Further Definition of “Swap,” “Security-Based Swap,” and “Security-Based Swap Agreement”; Mixed Swaps;
Security-Based Swap Agreement Recordkeeping, issued July 18, 2012 (to be codified at 17 CFR pt. 1), 77 FR 48207
(August 13, 2012). The Commission also adopted anti-evasions rules, including an anti-evasion rule with respect to
foreign exchange swaps and forwards. Under that rule, an interest rate swap or currency swap (including certain
foreign exchange transactions that the Commissions have provided in their regulations are not foreign exchange
swaps or foreign exchange forwards) that is willfully structured as a foreign exchange forward or foreign exchange
swap to evade any provision of Subtitle A of Title VII of the Dodd-Frank Act shall be deemed a swap for purposes
of Subtitle A and the Commission’s regulations thereunder.

10 The exclusion of foreign exchange forwards and foreign exchange swaps would become effective upon the
Secretary’s submission of the determination to exempt to the appropriate Congressional Committees. See sections
1a(47)(E)(ii) and 1b of the CEA, 7 U.S.C. 1a(47)(E)(ii) and 1b.

11 See Section 721(a) of the Dodd-Frank Act. The CPO and CTA definitions, as amended, are codified at CEA
sections 1a(11) and 1a(12), 7 U.S.C
change forwards and foreign exchange swaps would become effective upon the
Secretary’s submission of the determination to exempt to the appropriate Congressional Committees. See sections
1a(47)(E)(ii) and 1b of the CEA, 7 U.S.C. 1a(47)(E)(ii) and 1b.

11 See Section 721(a) of the Dodd-Frank Act. The CPO and CTA definitions, as amended, are codified at CEA
sections 1a(11) and 1a(12), 7 U.S.C. 1a(11) and 1a(12), respectively.

4
could be December 31, 2012 for swap dealers in certain cases, or whether they would be allowed
to refrain from applying, withdraw their application to be registered or make a new application to
cancel their registration. These parties state that these questions about registration are subjecting
them and the foreign exchange markets generally to significant uncertainty. To avoid this
uncertainty, these parties also have suggested that such market participants may withdraw from
the foreign exchange swap and foreign exchange forward markets, or be forced to restructure
their activities. Similar concerns have been raised with respect to operators of collective
investment vehicles that trade foreign exchange swaps and forwards and persons who provide
advice concerning foreign exchange swaps and forwards, and would have to apply to be
registered with the Commission as commodity pool operators or commodity trading advisors
solely as a result of these respective activities.

Based on the information provided by these parties, the Division believes that time-
limited no-action relief is warranted in order to alleviate the uncertainty on market participants
who engage solely or primarily in foreign exchange swap and foreign exchange forward swap
dealing activity in the event that, shortly after October 12, 2012, the Secretary issues a
determination to exempt foreign exchange swaps and foreign exchange forwards from the
definition of the term “swap” in the CEA
-action relief is warranted in order to alleviate the uncertainty on market participants
who engage solely or primarily in foreign exchange swap and foreign exchange forward swap
dealing activity in the event that, shortly after October 12, 2012, the Secretary issues a
determination to exempt foreign exchange swaps and foreign exchange forwards from the
definition of the term “swap” in the CEA. However, the Division does not believe it is
appropriate that this limited no-action relief would delay the date by which an entity must
register as a swap dealer, if the entity enters into other types of swaps in connection with its swap
dealing activities in excess of the de minimis thresholds.

Accordingly, the Division will not recommend enforcement action to the Commission
against an entity for failure to include, in its calculation of the aggregate gross notional amount
of swaps connected with its swap dealing activity for purposes of Commission Regulation
§1.3(ggg)(4), any foreign exchange swap or foreign exchange forward that is covered by an
exemption by the Secretary under section 1a(47)(E)(i) of the CEA that is effective prior to
December 31, 2012. However, notwithstanding the foregoing, if by December 31, 2012, an
entity enters into other types of swaps in connection with its swap dealing activities in excess of
either of the gross notional amount thresholds in CFTC regulation § 1.3(ggg)(4)(i),12 then such
foreign exchange swaps and foreign exchange forwards must be considered for purposes of the
entity’s determination of the date by which it must apply to be registered as a swap dealer.

For example, consider an entity that, in the month of October 2012 (following October
12, 2012) enters into foreign exchange swaps in connection with its swap dealing activities with
an aggregate gross notional amount of $5 billion, and also enters into interest rate swaps in
connection with its swap dealing activities with an aggregate gross notional amount of $4 billion
d as a swap dealer.

For example, consider an entity that, in the month of October 2012 (following October
12, 2012) enters into foreign exchange swaps in connection with its swap dealing activities with
an aggregate gross notional amount of $5 billion, and also enters into interest rate swaps in
connection with its swap dealing activities with an aggregate gross notional amount of $4 billion.
Under Commission Regulation § 1.3(ggg)(4), this entity must apply to be registered as a swap
dealer by no later than December 31, 2012. 13 However, if the Secretary were to determine to

12 Such an entity would include, for example, an entity that following October 12, 2012 and prior to December 31,
2012 enters into, in connection with its swap dealing activities, swaps that are not foreign exchange swaps or foreign
exchange forwards and that, in the aggregate, exceed either of the gross notional amount thresholds in CFTC
regulation § 1.3(ggg)(4)(i).

13 December 31, 2012 is the latest date that swap dealers which exceed a de minimis threshold in October 2012
would be required to register with the Commission. See CFTC Staff Frequently Asked Questions on Timing of
Swap Dealer Registration Rules (Sept. 10, 2012).

5
exclude such foreign exchange swaps from the definition of the term “swap” with an effective
date of November 15, 2012, then the entity may disregard all such excluded foreign exchange
swaps for purposes of such aggregate gross notional amount calculation
with the Commission. See CFTC Staff Frequently Asked Questions on Timing of
Swap Dealer Registration Rules (Sept. 10, 2012).

5
exclude such foreign exchange swaps from the definition of the term “swap” with an effective
date of November 15, 2012, then the entity may disregard all such excluded foreign exchange
swaps for purposes of such aggregate gross notional amount calculation. However, if in the
month of November 2012 the entity enters into interest rate swaps in connection with its swap
dealing activities with an aggregate gross notional amount of $5 billion, then (because it has
entered into interest rate swaps in connection with its swap dealing activities with an aggregate
gross notional amount of more than the $8 billion de minimis threshold by December 31, 2012),
its foreign exchange swaps must be considered for purposes of determining the date by which it
must register as a swap dealer, and therefore the entity must apply to be registered as a swap
dealer by no later than December 31, 2012.

Also, the Division will not recommend enforcement action to the Commission against an
entity for failure to include, in its calculation of its substantial position in swaps or substantial
counterparty exposure for purposes of Commission Regulation §1.3(hhh), any foreign exchange
swap or foreign exchange forward that is covered by an exemption by the Secretary under
section 1a(47)(E)(i) of the CEA that is effective prior to December 31, 2012
t action to the Commission against an
entity for failure to include, in its calculation of its substantial position in swaps or substantial
counterparty exposure for purposes of Commission Regulation §1.3(hhh), any foreign exchange
swap or foreign exchange forward that is covered by an exemption by the Secretary under
section 1a(47)(E)(i) of the CEA that is effective prior to December 31, 2012.

In addition, the Division believes that time-limited no-action relief is warranted in order
to alleviate uncertainty with respect to operators of collective investment vehicles that trade
foreign exchange swaps and forwards and persons who provide advice concerning foreign
exchange swaps and forwards, and would have to register with the Commission as commodity
pool operators or commodity trading advisors solely as a result of these respective activities, in
the event that, shortly after October 12, 2012, the Secretary issues a determination to exempt
foreign exchange swaps and foreign exchange forwards from the definition of the term “swap.”
Accordingly, the Division will not recommend enforcement action to the Commission against a
person who operates a collective investment vehicle that trades foreign exchange swaps and
forwards or a person who provides advice concerning foreign exchange swaps and forwards, and
would have to apply to be registered with the Commission as a commodity pool operator or
commodity trading advisor solely as a result of these respective activities, for failure to apply to
be registered with the Commission, if the Secretary issues a final determination to exempt
foreign exchange swaps and forwards from the term “swap” that becomes effective before
December 31, 2012.

This letter, and the positions taken herein, represent the view of the Division only, and do
not necessarily represent the position or view of the Commission or of any other office or
division of the Commission
th the Commission, if the Secretary issues a final determination to exempt
foreign exchange swaps and forwards from the term “swap” that becomes effective before
December 31, 2012.

This letter, and the positions taken herein, represent the view of the Division only, and do
not necessarily represent the position or view of the Commission or of any other office or
division of the Commission. The relief issued by this letter does not excuse the affected persons
from compliance with any other applicable requirements contained in the CEA or in the
Commission’s regulations issued thereunder. Further, this letter, and the relief contained herein,
is based upon the information made available to the Division. Any different or changed material
facts or circumstances might render this letter void.

6

Should you have any questions, please do not hesitate to contact Frank Fisanich, Chief
Counsel, at 202-418-5949, or Ward Griffin, Associate Chief Counsel, at 202-418-5425.

Very truly yours,

Gary Barnett
Director

cc:
Regina Thoele, Compliance

National Futures Association, Chicago

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Source: Frix Law Library, https://www.frixlaw.com/law-library/statutes/CFTC_L12_21. Check the current official text before relying on it. Not legal advice.