CFTC Proposes Rules to Phase in Compliance with Dodd-Frank’s New Derivatives Requirements and Releases Tentative Rulemaking Schedule


On September 8, 2011, the CFTC held an open meeting to consider two proposed rules under Title VII of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the Dodd-Frank Act). The proposed rules address implementation schedules for compliance with the Dodd-Frank Act’s (1) swap clearing and platform execution requirements; and (2) swap documentation and margining requirements for uncleared swaps. Copies of proposed rules are available here. The CFTC also released a tentative outline for issuance of final versions of the majority of its rulemakings under Title VII of the Dodd-Frank Act. A copy of the tentative implementation schedule is available here.

In his opening remarks at the CFTC’s open meeting, Chairman Gensler provided further insight on the CFTC’s final rulemaking schedule. A copy of his remarks are available here. According to Chairman Gensler, the CFTC intends to take a focused and thoughtful approach that is “not against a clock” in promulgating the remaining final rules required by Title VII of the Dodd-Frank Act. Chairman Gensler also announced that he has directed the CFTC Staff to draft appropriately tailored recommendations for further exemptive relief from self-effectuating provisions of the Dodd-Frank Act similar to the temporary exemptive relief that was granted by the CFTC on July 14, 2011 (the CFTC Temporary Relief Order).1

The CFTC Temporary Relief Order did not apply to provisions of Title VII of the Dodd-Frank Act that required a final rulemaking by the CFTC (or other regulator) because such provisions did not self-effectuate on July 16, 2011. These so-called “Category I” provisions, which are listed in the Appendix to the CFTC Temporary Relief Order, include mandatory clearing and platform execution, capital and margin requirements, swap documentation requirements, recordkeeping requirements and reporting requirements. These provisions take effect no less than 60 days after final versions of the applicable rulemakings implementing the provisions are published in the Federal Register. There is no outer limit on when such provisions and corresponding rulemakings must take effect and therefore the CFTC has a considerable amount of discretion to establish lengthy and/or phased-in effective dates for the provisions. The CFTC is proposing to exercise such discretion with its recently proposed rules, which establish phased-in compliance schedules for compliance with Title VII’s clearing, trade execution, trading documentation and margin requirements.

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