CFTC Cross-Border Guidance Frequently Asked Questions

Section 722(d) of the Dodd-Frank Act amended the Commodity Exchange Act (“CEA”) by adding section 2(i), which provides that the provisions of the CEA relating to swaps shall not apply to activities outside the United States unless those activities (1) “have a direct and significant connection with activities in, or effect on, commerce of the United States;” or (2) “contravene [Commission rules or regulations] as are necessary or appropriate to prevent the evasion of [the swaps provisions of the CEA] . . . .”

Pursuant to this statutory authority, on July 12, 2012, the Commodity Futures Trading Commission (“CFTC” or “Commission”) released a proposed interpretive guidance and policy statement (the “Guidance”) regarding the cross-border application of the swap provisions. Subsequently, the Commission finalized and voted to approve the Guidance on July 12, 2013. The Guidance includes discussion regarding the scope of the term “U.S. person,” the framework for swap dealer and major swap participant registration determinations, and the treatment of swaps for various registered and non-registered entities. The Guidance will become effective immediately upon publication in the Federal Register. Lastly, on July 12, 2013, the Commission also approved a final exemptive order with respect to certain swap requirements, providing temporary conditional relief effective on July 13, 2013, which will expire on December 31, 2013 or such earlier date as specified in the order.

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