Last week the Commodity Futures Trading Commission (“CFTC”) issued an order (the “De Minimis Order”) that pushes back by one year the date on which the CFTC may lower its swap dealer de minimis threshold, the amount of swap dealing activity in a 12-month period that may require a swap market participant to register as a swap dealer. The De Minimis Order has the effect of preserving the de minimis threshold at its current level, $8 billion in aggregate gross notional amount, until December 31, 2019. The order means that, at least until the end of 2019, no swap dealing entities will likely be required to register as regulated swap dealers on the basis of dealing activity of less than $8 billion in notional amount over a 12-month period.

Over the longer run, it remains unclear whether the CFTC will lower the threshold and thus subject a larger number of entities to swap dealer regulation. CFTC regulations provide that, after an initial phase-in period, the de minimis threshold will fall to $3 billion in aggregate gross notional amount, but they also provide that the CFTC may, after review, propose through its rulemaking process a different de minimis threshold. The De Minimis Order provides that the end of the phase-in period will be December 31, 2019; a previous CFTC order (the “Previous Order”) provided that the phase-in period would end a year earlier, on December 31, 2018.