Recent Action by the Department of the Treasury Regarding Foreign Exchange Swaps and Foreign Exchange Forwards

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On October 28, 2010, the Department of the Treasury (the “Treasury”) published in the Federal Register1 a notice and request for comments (the “Notice”) relating to the authority of the Secretary of the Treasury (the “Secretary”) to make a written determination that foreign exchange swaps, foreign exchange forwards, or both, should not be regulated as swaps under the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Dodd-Frank Act”).2 In the Notice, the Treasury states that the Secretary has made no determination yet as to whether an exemption is warranted.

The Treasury solicited comments on whether an exemption for foreign exchange swaps, foreign exchange forwards, or both, is warranted and on the application of the factors described below that the Secretary is required to consider in making any such determination. The Treasury also solicited comments on the questions attached as Appendix A to this client alert and encouraged commenters to submit supporting materials, including relevant transactional data, that would assist the Secretary’s consideration of the issues relating to any exemption. Written comments must be received by the Treasury on or before November 29, 2010 to be assured of consideration.

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