# CFTC Letter No. 13-12: Relief for Swap Dealers and Major Swap Participants Regarding the Obligation to Provide Certain Disclosures for Certain Transactions Under Regulation 23.431

> Federal · Agency guidance · In force

URL: https://www.frixlaw.com/law-library/statutes/CFTC_L13_12

## Section

- **Citation:** CFTC Letter No. 13-12
- **Heading:** Relief for Swap Dealers and Major Swap Participants Regarding the Obligation to Provide Certain Disclosures for Certain Transactions Under Regulation 23.431
- **Jurisdiction:** Federal
- **Kind:** Agency guidance
- **Status:** In force
- **Text as of:** August 14, 2026
- **Source:** Compiled text
- **Location:** CFTC Staff Letters (2008-present) / Relief for Swap Dealers and Major Swap Participants Regarding the Obligation to Provide Certain Disclosures for Certain Transactions Under Regulation 23.431.

## Text

Summary: Relief for Swap Dealers and Major Swap Participants Regarding the Obligation to Provide Certain Disclosures for Certain Transactions Under Regulation 23.431.

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

Gary Barnett
Director

CFTC Letter No. 13-12
No-Action
May 1, 2013
Division of Swap Dealer and Intermediary Oversight

Re:
Relief for Swap Dealers and Major Swap Participants Regarding the Obligation to
Provide Certain Disclosures for Certain Transactions Under Regulation 23.431

Ladies and Gentlemen:

This letter is in response to requests from the Foreign Exchange Committee (“FXC”), the
Financial Markets Lawyers Group (“FMLG”), the Wholesale Markets Brokers Association
(“WMBA”) and Thomson Reuters Corporation (“Thomson Reuters”) on behalf of FX Alliance,
LLC and Reuters Transactions Services Limited (together, the “Requesting Parties”) to the
Division of Swap Dealer and Intermediary Oversight (“Division”) of the Commodity Futures
Trading Commission (“Commission”), in which the Requesting Parties requested relief from the
Division that would permit swap dealers (“SDs”) and major swap participants (“MSPs”), under
certain circumstances described herein, to enter into certain transactions without disclosing a pre-
trade mid-market mark (the “PTM”) to the non-SD, non-MSP counterparties (the
“counterparties”) to such transactions as required under Commission Regulation (“Regulation”)
23.431(a)(3)(i).1

Applicable Regulatory Requirements

Section 4s(h)(3)(B) of the CEA directs the Commission to adopt business conduct
standards for SDs and MSPs that:

require disclosure by the swap dealer or major swap participant to any
counterparty to the transaction (other than a swap dealer, major swap participant,
security-based swap dealer, or major security-based swap
ation”)
23.431(a)(3)(i).1

Applicable Regulatory Requirements

Section 4s(h)(3)(B) of the CEA directs the Commission to adopt business conduct
standards for SDs and MSPs that:

require disclosure by the swap dealer or major swap participant to any
counterparty to the transaction (other than a swap dealer, major swap participant,
security-based swap dealer, or major security-based swap participant) of –

* * *

1 Although FMLG and FXC are sponsored by the Federal Reserve Bank of New York, the letter requesting relief
states that the request was not endorsed by the Federal Reserve Bank of New York or the Federal Reserve System.

Page 2

(iii) (I) for cleared swaps, upon the request of the counterparty, receipt of
the daily mark of the transaction from the appropriate derivatives clearing
organization; and (II) for uncleared swaps, receipt of the daily mark of the
transaction from the swap dealer or the major swap participant.2

On February 17, 2012, the Commission issued final rules pursuant to 4s(h) of the CEA
prescribing certain business conduct standards for SDs and MSPs, which included Regulation
23.431.3 In relevant part, Regulation 23.431 reads as follows:

At a reasonably sufficient time prior to entering into a swap, a swap dealer or
major swap participant shall disclose to any counterparty to the swap (other than a
swap dealer, major swap participant, security-based swap dealer, or major
security-based swap participant) material information concerning the swap in a
manner reasonably designed to allow the counterparty to assess . . . [t]he material
incentives and conflicts of interest that the swap dealer or major swap participant
may have in connection with a particular swap, which shall include: (i) [w]ith
respect to disclosure of the price of the swap, the price of the swap and the mid-
market mark of the swap as set forth in paragraph (d)(2) of this section . .
sonably designed to allow the counterparty to assess . . . [t]he material
incentives and conflicts of interest that the swap dealer or major swap participant
may have in connection with a particular swap, which shall include: (i) [w]ith
respect to disclosure of the price of the swap, the price of the swap and the mid-
market mark of the swap as set forth in paragraph (d)(2) of this section . . . .4

The initial compliance date for § 23.431 was the later of 180 days after the effective date
of the publication of the final rule or “the date on which swap dealers or major swap participants
are required to apply for registration pursuant to Commission rule 3.10.”5 The Commission
subsequently postponed the compliance date for a number of the business conduct standards
rules, including § 23.431, until May 1, 2013.6

In describing the purpose of requiring SDs and MSPs to disclose the PTM, the
Commission stated that “the spread between the quote and mid-market mark is relevant to
disclosures regarding material incentives and provides the counterparty with pricing information

2 CEA Section 4s(h)(3)(B), 7 U.S.C. § 6s(h)(3)(B).
3 Business Conduct Standards for Swap Dealers and Major Swap Participants With Counterparties, 77 Fed. Reg.
9734 (Feb. 17, 2012) (hereinafter “Final Business Conduct Standards”). In the proposed business conduct standards
rules, the Commission proposed Regulation 23.431 to “provide specificity with respect to certain material
information that must be disclosed” by swap dealers and major swap participants. Business Conduct Standards for
Swap Dealers and Major Swap Participants With Counterparties, 75 Fed. Reg. 80638, 80643 (proposed Dec. 22,
2010).
4 Final Business Conduct Standards at 9824.
5 External Business Conduct Standards at 9734.

6 In September 2012, the Commission changed the compliance date of §§ 23.402; 23.410(c); 23.430; 23.431(a)–(c);
23.432; 23.434(a)(2), (b), and (c); 23.440; and 23.450 to January 1, 2013
r
Swap Dealers and Major Swap Participants With Counterparties, 75 Fed. Reg. 80638, 80643 (proposed Dec. 22,
2010).
4 Final Business Conduct Standards at 9824.
5 External Business Conduct Standards at 9734.

6 In September 2012, the Commission changed the compliance date of §§ 23.402; 23.410(c); 23.430; 23.431(a)–(c);
23.432; 23.434(a)(2), (b), and (c); 23.440; and 23.450 to January 1, 2013. See Confirmation, Portfolio
Reconciliation, Portfolio Compression, and Swap Trading Relationship Documentation Requirements for Swap
Dealers and Major Swap Participants, 77 FR 55904, 55942 (Sept. 11, 2012). The Commission later changed the
compliance date for these provisions to May 1, 2013. See Business Conduct and Documentation Requirements for
Swap Dealers and Major Swap Participants; Extension of Compliance Date, 78 FR 17, 20 (Jan. 2, 2013).

Page 3

that facilitates negotiations and balances historical information asymmetry regarding swap
pricing.”7

However, Regulation 23.431(c) provides an exception from the requirement for an SD or
MSP to provide the PTM. It states that the requirement to provide a PTM does not apply with
respect to a transaction that is “(1) [i]nitiated on a designated contract market or a swap
execution facility; and (2) [o]ne in which the swap dealer or major swap participant does not
know the identity of the counterpart to the transaction prior to execution.”8

The Division notes that pursuant to Section 1a(47)(E) of the Commodity Exchange Act
(“CEA”),9 the Secretary of the Treasury (“Secretary”) is vested with the authority to determine
whether foreign exchange swaps and forwards10 should be regulated as swaps under the CEA,
provided that the Secretary makes a written determination satisfying certain criteria specified in
CEA Section 1b
tion.”8

The Division notes that pursuant to Section 1a(47)(E) of the Commodity Exchange Act
(“CEA”),9 the Secretary of the Treasury (“Secretary”) is vested with the authority to determine
whether foreign exchange swaps and forwards10 should be regulated as swaps under the CEA,
provided that the Secretary makes a written determination satisfying certain criteria specified in
CEA Section 1b. On November 16, 2012, the Secretary issued a written determination that
physically-settled foreign exchange forwards and swap agreements should not be regulated as
swaps under the CEA (“Treasury Determination”).11 Nonetheless, CEA Section 1a(47)(E)(iv)
states that, notwithstanding the Secretary’s written determination, “any party to [an Exempt FX
Transaction12] that is a SD or MSP shall conform to the business conduct standards contained in
section 4s(h).”13 Thus, SDs and MSPs are required to comply with the business conduct
standards adopted by the Commission in subpart H of part 23 of the Commission’s regulations
by May 1, 2013, including § 23.431.

Previous No-Action Relief

In Staff Letter No. 12-42 (Dec. 6, 2012), the Division granted no-action relief from the
PTM requirement for limited types of foreign exchange transactions. Specifically, the Division
stated that it would not recommend that the Commission take an enforcement action against an
SD or MSP for failure to disclose the PTM, as required by Regulation 23.431(a)(3), to a

7 Id. at 9766. In the preamble to the proposed rule, the Commission noted that the “mid-market [mark] is a
transparent measure that would assist counterparties in calculating valuations for their own internal risk management
purposes.” Business Conduct Standards for Swap Dealers and Major Swap Participants With Counterparties, 75
Fed. Reg. 80638, 80646 (proposed Dec. 22, 2010).
8 Final Business Conduct Standards at 9824.
9 7 U.S.C. 1a(47)(E)
, the Commission noted that the “mid-market [mark] is a
transparent measure that would assist counterparties in calculating valuations for their own internal risk management
purposes.” Business Conduct Standards for Swap Dealers and Major Swap Participants With Counterparties, 75
Fed. Reg. 80638, 80646 (proposed Dec. 22, 2010).
8 Final Business Conduct Standards at 9824.
9 7 U.S.C. 1a(47)(E).
10 Foreign exchange swaps and foreign exchange forwards are defined in Sections 1a(24) and 1a(25), respectively,
of the Commodity Exchange Act.
11 Determination of Foreign Exchange Swaps and Foreign Exchange Forwards Under the Commodity Exchange
Act, 77 Fed. Reg. 69694 (Nov. 20, 2012) (hereinafter, the “Treasury Determination”).
12 Physically-settled foreign exchange forwards and swap agreements that have been exempted from the definition
of swap by the U.S. Department of the Treasury are hereinafter referred to as “Exempt FX Transactions.” See
Treasury Determination.

13 Additionally, foreign exchange swaps and forwards are subject to reporting obligations, pursuant to Section
1a(47)(E)(iii) of the CEA, 7 U.S.C. § 1a(47)(E)(iii).

Page 4

counterparty in connection with: (a) foreign exchange swaps and forwards that, by their terms,
are physically settled, where each currency is one that is included among the top 13 deliverable
currencies (by volume) described in the Bank for International Settlements’ Triennial Central
Bank Survey, Report on Global Foreign Exchange Market Activity in 2010 (the “BIS 13
Currencies”),14 and where the transaction has a stated maturity of one year or less; and (b) vanilla
foreign exchange options that, by their terms, are physically settled, where each currency is one
included among the BIS 13 Currencies, and where the option has a stated maturity of six months
or less, provided that: (1) real-time tradable bid and offer prices for the applicable transactions
were available electronically in the marketplace to the counterparty; and (2) the counterparty to
the appl
eign exchange options that, by their terms, are physically settled, where each currency is one
included among the BIS 13 Currencies, and where the option has a stated maturity of six months
or less, provided that: (1) real-time tradable bid and offer prices for the applicable transactions
were available electronically in the marketplace to the counterparty; and (2) the counterparty to
the applicable transaction agreed in advance, in writing, that the SD or MSP need not disclose a
PTM.

The Division granted the no-action relief based on, among other things, representations
made by FXC and FMLG that the applicable transactions benefit from a combination of high
liquidity, narrow bid and offer spreads, and the existence of a significant amount of publicly
available information with respect thereto, arguing therefore that compliance with the PTM
requirement does not provide any significant additional informational value but would require
SDs and MSPs to create a new price stream when quotes are provided electronically and would
add additional operational requirements for dealers when quotes are conveyed by voice. With
their original request for relief, FXC and FMLG submitted data collected from foreign exchange
dealers and public sources showing that the PTM that would be disclosed by SDs and MSPs in
connection with the applicable transactions would be substantially similar to publicly available
information.15 In the letter granting no-action relief, the Division stated that it would consider
extending the no-action relief to other transactions, if sufficient data and other relevant
information were submitted to the Division establishing the appropriateness of an extension.

Summary of Additional Requests for Relief

Subsequent to the Division’s grant of no-action relief, FXC and FMLG submitted a letter
requesting that the Division expand the transactional scope of the no-action relief granted in Staff
Letter No
her transactions, if sufficient data and other relevant
information were submitted to the Division establishing the appropriateness of an extension.

Summary of Additional Requests for Relief

Subsequent to the Division’s grant of no-action relief, FXC and FMLG submitted a letter
requesting that the Division expand the transactional scope of the no-action relief granted in Staff
Letter No. 12-42 to include: (i) foreign exchange forwards or swaps, and transactions that would
be foreign exchange forwards or swaps but for the fact that they are non-deliverable, in each case
where each currency is one included among the top 31 currencies (by volume) described in the
Bank for International Settlements’ Triennial Central Bank Survey Report on global foreign

14 The BIS 13 Currencies referenced in Staff Letter 12-42 excluded the Korean won, which is a restricted currency.
Excluding the Korean won, the top thirteen deliverable currencies by volume are the US dollar, Euro, Japanese yen,
Pound sterling, Australian dollar, Swiss franc, Canadian dollar, Hong Kong dollar, Swedish krona, New Zealand
dollar, Singapore dollar, Norwegian krone and Mexican peso. See Bank for International Settlements, 2010 BIS
Triennial Central Bank Survey, Report on global foreign exchange market activity in 2010 12 (Dec. 2010), available
at http://www.bis.org/publ/rpfxf10t.pdf.
15 In data submitted by the FXC and FMLG that was collected from major foreign exchange dealers and Bloomberg,
“the typical deviation from a publicly available mid (as provided by Bloomberg) is just $36 on a $1m notional
EUR/USD forward deal, $77 on a $1m notional AUD/USD forward deal and $254 on a $1m notional USD/MXN
forward deal.” Letter from FXC and FMLG to Gary Barnett at A-1 (Nov. 16, 2012).
ata submitted by the FXC and FMLG that was collected from major foreign exchange dealers and Bloomberg,
“the typical deviation from a publicly available mid (as provided by Bloomberg) is just $36 on a $1m notional
EUR/USD forward deal, $77 on a $1m notional AUD/USD forward deal and $254 on a $1m notional USD/MXN
forward deal.” Letter from FXC and FMLG to Gary Barnett at A-1 (Nov. 16, 2012).

Page 5

exchange market activity in 2010 (“BIS 31 Currencies”)16 and the transaction has a stated
maturity of two years or less, (ii) vanilla foreign exchange options whether deliverable or non-
deliverable, where each currency is one included among the BIS 31 Currencies and the option
has a stated maturity of two years or less, and (iii) multi-component transactions comprised
entirely of a combination and/or series of the foregoing transactions. As part of their request,
FXC and FMLG submitted data collected from foreign exchange dealers and public sources that
they believe shows that the PTM that would be disclosed by SDs and MSPs in connection with
the above referenced transactions would be substantially similar to publicly available
information. Therefore, they argue that the additional information that would be provided by the
PTM would be minimal.

In a separate letter, Thomson Reuters requested relief from the requirement to provide the
PTM for certain transactions executed on anonymous electronic trading platforms.17 Thomson
Reuters notes that Commission regulation § 23.431(c) provides that an SD or MSP need not
disclose the PTM with respect to a swap if the swap is (1) initiated on a DCM or SEF and (2) the
SD or MSP does not know the identity of the counterparty prior to execution. However, Exempt
FX Transactions are not required to be executed on SEFs or DCMs and may be executed on an
electronic trading platform that is not registered as a SEF or DCM
§ 23.431(c) provides that an SD or MSP need not
disclose the PTM with respect to a swap if the swap is (1) initiated on a DCM or SEF and (2) the
SD or MSP does not know the identity of the counterparty prior to execution. However, Exempt
FX Transactions are not required to be executed on SEFs or DCMs and may be executed on an
electronic trading platform that is not registered as a SEF or DCM. Thomson Reuters notes that
an SD or MSP that executes an Exempt FX Transaction on an electronic trading platform that is
not registered as a SEF or DCM will not be able to rely on § 23.431(c) for an exception to the
PTM disclosure requirement. This would be true even if the SD or MSP were matched
anonymously to the counterparty on the electronic trading platform and if real-time, pre-trade
pricing information was available to the counterparty prior to entering into the transaction.

Thomson Reuters argues that the pre-trade pricing information that is available on many
electronic trading platforms not registered as a SEF or DCM is not materially different than the
information that would be conveyed by disclosure of the PTM by individual SDs and MSPs.
Additionally, they argue that requiring disclosure would impose substantial additional costs that
would likely lead to a decrease in market liquidity and transparency due to decreased
participation on anonymous electronic trading platforms.

Therefore, Thomson Reuters requested that the Division provide no-action relief for SDs
and MSPs from the requirement to provide the PTM for certain foreign exchange swaps and
forwards, executed on a non-SEF, non-DCM anonymous electronic trading platform where: (1)
contracts executed on the electronic trading platform are Exempt FX Transactions, (2) only
eligible contract participants participate in the non-SEF, non-DCM anonymous electronic trading

16 The BIS 31 Currencies referenced in FXC and FMLG’s request are composed of the following: US dollar, Euro,
Japanes
us electronic trading platform where: (1)
contracts executed on the electronic trading platform are Exempt FX Transactions, (2) only
eligible contract participants participate in the non-SEF, non-DCM anonymous electronic trading

16 The BIS 31 Currencies referenced in FXC and FMLG’s request are composed of the following: US dollar, Euro,
Japanese yen, Pound sterling, Australian dollar, Swiss franc, Canadian dollar, Hong Kong dollar, Swedish krona,
New Zealand dollar, Korean won, Singapore dollar, Norwegian krona, Mexican peso, Indian rupee, Russian rouble,
Chinese renminbi, Polish zloty, Turkish lira, South African rand, Brazilian real, Danish krone, New Taiwan dollar,
Hungarian forint, Malaysian ringgit, Thai baht, Czech koruna, Philippine peso, Chilean peso, Indonesian rupiah,
Israeli new shekel. See Bank for International Settlements, supra note 11, at 12.

17 For purposes of this letter, the term “electronic trading platform” means the platform on which the transactions are
executed.

Page 6

platform, (3) counterparties are automatically and anonymously matched and no price
negotiations occur for the transactions executed on these platforms, and (4) the non-SEF, non-
DCM anonymous electronic trading platform will maintain an audit trail and, upon request, will
provide to the Commission books and records to enable the Commission to reconstruct the
trades. WMBA requested similar relief for all types of transactions subject to the Commission’s
business conduct standards rules that are executed under circumstances where the SD or MSP
does not know the identity of the counterparty prior to execution.

Division No-Action Position

Based on the representations of the Requesting Parties and informed by discussions with
other market participants, the Division believes that relief is warranted under certain
circumstances and under certain conditions
uct standards rules that are executed under circumstances where the SD or MSP
does not know the identity of the counterparty prior to execution.

Division No-Action Position

Based on the representations of the Requesting Parties and informed by discussions with
other market participants, the Division believes that relief is warranted under certain
circumstances and under certain conditions. Accordingly, the Division will not recommend that
the Commission commence an enforcement action against an SD or MSP for failure to disclose
the PTM to a counterparty in a transaction, as required by Regulation 23.431(a)(3)(i), subject to
the following conditions:

(a)
The transaction is (1) a foreign exchange swap or forward that, by its terms, is physically
settled, where each currency is one of the BIS 31 Currencies and where the transaction
has a stated maturity of one year or less, or (2) a vanilla foreign exchange option that, by
its terms, is physically settled, where each currency is one included among the BIS 31
Currencies, and where the option has a stated maturity of six months or less;18

(b)
Real-time tradeable bid and offer prices for the transaction are available electronically, in
the marketplace, to the counterparty; and

(c)
The counterparty to the transaction agrees in advance, in writing, that the SD and MSP
need not disclose a PTM.

In addition, the Division will not recommend that the Commission commence an
enforcement action against an SD or MSP for failure to comply with Regulations 23.431(a) and
(b), in connection with an Exempt FX Transaction, subject to the following conditions:

(a)
The Exempt FX Transaction is initiated on an electronic trading platform and the SD or
MSP does not know the identity of the counterparty prior to execution, whether or not the
platform is a SEF or DCM;
an
enforcement action against an SD or MSP for failure to comply with Regulations 23.431(a) and
(b), in connection with an Exempt FX Transaction, subject to the following conditions:

(a)
The Exempt FX Transaction is initiated on an electronic trading platform and the SD or
MSP does not know the identity of the counterparty prior to execution, whether or not the
platform is a SEF or DCM;

(b)
Only eligible contract participants participate in the anonymous electronic trading
platform; and

18 The Division notes that the transactions for which it is granting no-action relief does not cover all transactions for
which relief was requested by FXC and FMLG. While it will continue to assess whether to grant additional relief, at
this time the Division is only expanding the relief that was granted in Staff Letter 12-42 (Dec. 6, 2012) to cover
additional currencies, as described in this letter.

Page 7

(c)
Real-time tradeable bid and offer prices for the Exempt FX Transaction are available
electronically, in the marketplace, to the counterparty.

The Division is applying this no-action relief based on, among other things, the
representations of the Requesting Parties that real-time tradable bid and offer prices are available
in the marketplace and that counterparties benefit from a combination of high liquidity, narrow
bid and offer spreads, and the existence of a significant amount of publicly available information.
The Division will continue to monitor market data with respect to the liquidity, bid and offer
spreads, and publicly available information for the transactions subject to relief under this letter,
and if the circumstances change, the Division may limit, impose additional or different
conditions on, or revoke this no-action relief
ence of a significant amount of publicly available information.
The Division will continue to monitor market data with respect to the liquidity, bid and offer
spreads, and publicly available information for the transactions subject to relief under this letter,
and if the circumstances change, the Division may limit, impose additional or different
conditions on, or revoke this no-action relief. The Division also notes that this no-action relief
does not affect any obligation to provide a daily mark pursuant to Regulation 23.431(d), nor any
obligation to report a transaction or information concerning a transaction under part 43 or part 45
of the Commission’s regulations.

This letter, and the positions taken herein, represent the view of this Division only, and
do not necessarily represent the position or view of the Commission or of any other office or
division of the Commission. In particular, notwithstanding the description of any foreign
exchange agreement, contract, or transaction herein, nothing in this letter is intended to address,
expand, interpret, or modify the definitions of foreign exchange swaps or foreign exchange
forwards in Sections 1a(24) and 1a(25), respectively, of the Commodity Exchange Act. The
relief issued by this letter does not excuse persons relying on it from compliance with any other
applicable requirements contained in the Act or in the Regulations issued thereunder. Further,
this letter, and the relief contained herein, is based upon the representations made to the Division.
Any different, changed or omitted material facts or circumstances might render this no-action
relief void.
ued by this letter does not excuse persons relying on it from compliance with any other
applicable requirements contained in the Act or in the Regulations issued thereunder. Further,
this letter, and the relief contained herein, is based upon the representations made to the Division.
Any different, changed or omitted material facts or circumstances might render this no-action
relief void.

Page 8

Should you have any questions, please do not hesitate to contact me at (202) 418-5977;
Ward Griffin, Associate Chief Counsel, at (202) 418-5425; or Adam Kezsbom, Special Counsel,
at (202) 418-5372.

Very truly yours,

Gary Barnett
Director
Division of Swap Dealer and
Intermediary Oversight

cc:
Regina Thoele, Compliance
National Futures Association, Chicago

Jamila A. Piracci, OTC Derivatives
National Futures Association, New York

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Source: Frix Law Library, https://www.frixlaw.com/law-library/statutes/CFTC_L13_12. Check the current official text before relying on it. Not legal advice.