The Commodity Futures Trading Commission and the CFTC’s Division of Market Oversight (DMO) have issued the following guidance relating to the trading of swaps on swap execution facilities (SEFs) and designated contract markets (DCMs): 

  • CFTC Regulation 49.17(f)(2) allows the counterparties to a swap to access data and information maintained by a swap data repository. The CFTC has adopted an interim final rule to clarify that, for swaps executed anonymously on a SEF or DCM and cleared pursuant to CFTC regulations, the data and information accessible by a counterparty does not include the identity or legal entity identifier of the other party or its clearing member. The interim final rule will be effective upon publication in the Federal Register, and is available here. 
  • CFTC Regulation 37.202(b) provides that a SEF must require each market participant (including persons whose trades are intermediated) to consent to the SEF’s jurisdiction prior to obtaining access to the SEF. DMO has issued guidance which clarifies that a SEF does not need to obtain such consent in writing and may satisfy this requirement if its rulebook provides that any person trading on the SEF (either directly or through an intermediary) consents to the jurisdiction of the SEF. DMO’s guidance on this matter is available here. 
  • Certain interest rate and credit default swaps have been deemed to be made available to trade (MAT) and, beginning February 15, will become subject to the trade execution requirement set forth in Section 2(h)(8) of the Commodity Exchange Act (CEA). DMO has issued temporary no-action relief (i) with respect to the mandatory trade execution requirement for counterparties to “package transactions” and (ii) with respect to the manner of execution requirements for SEFs and DCMs (CFTC Regulation 37.9 and DCMs Core Principle 9, respectively), to the extent that they engage in or facilitate package transactions. For these purposes, a “package transaction” involves two or more instruments, at least one of which is a swap subject to the mandatory trade execution requirement. The no-action relief expires on May 15, 2014. The no-action letter is available here.