On September 28, 2010, the Commodity Futures Trading Commission (CFTC) issued an Advanced Notice of Proposed Rulemaking (ANPRM) requesting public comments on the appropriate conditions, restrictions, or protections that should be included in any CFTC rule, regulation or order governing the trading of “agricultural commodity” swaps.

With respect to swaps generally, the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank) directs the CFTC to determine, based on certain factors, whether a swap, or a group, category, type, or class of swaps, should be required to be cleared. To the extent that a swap transaction is required to be cleared, such swap must be executed on a designated contract market (DCM) or a swap execution facility (SEF).2 Swaps that are not subject to the clearing requirement may be executed bilaterally over-the-counter. In addition, swaps entered into by “commercial end-users” (non-financial entities that use swaps to hedge or mitigate commercial risk) will not be subject to mandatory clearing and may be executed bilaterally over-the-counter.