1

U.S. COMMODITY FUTURES TRADING COMMISSION

Three Lafayette Centre

1155 21st Street, NW, Washington, DC 20581

Telephone: (202) 418-5000

Facsimile: (202) 418-5521

www.cftc.gov

Division of Market Oversight

CFTC Letter No. 14-89

No-Action

June 27, 2014

Division of Market Oversight 

Stephen O’Connor

Chairman

International Swaps and Derivatives Association, Inc.

1001 Pennsylvania Avenue, NW Suite 600

Washington, DC 20004

Extension of Time-Limited No-Action Relief Provided in CFTC Letter No. 13-41

Dear Mr. O’Connor,

This is in response to your June 20, 2014 letter (“Letter”) to the Division of Market Oversight 

(“Division”) of the Commodity Futures Trading Commission (“Commission”). By the Letter you 

requested pursuant to § 140.99 of the Commission’s regulations certain no-action relief for your 

members and other similarly situated persons with reporting obligations under Parts 20, 45 or 46 of the 

Commission’s regulations (collectively, the “Reporting Rules”). Your request for relief pertains to 

reportable transactions for which the reporting of identifying information is subject to statutory or 

regulatory prohibitions in certain non-U.S. jurisdictions.

The Division notes that it has previously granted no-action relief with respect to certain identifying 

information in “Enumerated Jurisdictions”

1

specified in your no-action request to the Division dated 

June 21, 2013. The Division granted time-limited relief via CFTC Letter No. 13-41, issued on June 28, 

2013. The relief granted in CFTC Letter No. 13-41 expires no later than 12:01 a.m. eastern daylight 

time on June 30, 2014.

The Division believes that a time-limited extension of the existing relief in CFTC Letter No. 13-41 is 

appropriate so that relevant jurisdictions and parties with reporting obligations may continue their 

efforts to resolve issues raised in the no-action letter. As noted in the March 2014 report of the OTC 

Derivatives Regulators Group, there are statutory or regulatory prohibitions that may prevent reporting 

to trade repositories. Additionally, the Division believes that the new request for relief in your Letter 

of June 20, 2014 is broader than the relief previously granted by the Division. The Division will

consider your expanded request for relief while the extension granted in this no-action letter is 

operative. 

 

1 The Enumerated Jurisdictions listed in the Annex to your June 21, 2013 letter are: France, Korea, Luxembourg, People’s 

Republic of China, Switzerland, Taiwan, Belgium, India, Algeria, Singapore, Bahrain, Argentina, Hungary, Samoa, 

Austria, and Pakistan.
2

Accordingly, the Division is extending the expiration of the relief provided in CFTC Letter No. 13-41 

until the earlier of: (i) the reporting party no longer holding the requisite reasonable belief regarding 

the privacy law consequences of reporting; or (ii) 12:01 a.m. eastern standard time on January 16, 

2015. CFTC Letter No. 13-41 is attached hereto as Appendix 1. The Division emphasizes that the noaction relief conferred herein serves only to extend the duration of the relief previously granted in 

CFTC Letter No. 13-41. All other terms and conditions in CFTC Letter No. 13-41 continue to apply. 

The Division further emphasizes that:

(1) With respect to requesting and obtaining formal responses from relevant non-U.S. regulators or 

governing authorities, Reporting Counterparties and Reporting Entities2 may rely on this 

extension of relief only to the extent that they previously satisfied all terms and conditions 

enumerated in CFTC Letter No. 13-41, and only with respect to Enumerated Jurisdictions 

where Reporting Counterparties and Reporting Entities previously obtained formal responses 

from the relevant non-U.S. regulators or governing authorities that such Reporting 

Counterparties and Reporting Entities believe satisfied the conditions in II.(iii) and III.(iii) of 

CFTC Letter No. 13-41 and were submitted in accordance with the conditions in II.i. and III.i.

of CFTC Letter No. 13-41. 

(2) Reporting Counterparties and Reporting Entities remain subject to the back loading conditions 

found in conditions II.iii. and III.iii. of CFTC Letter No. 13-41, based on the new expiration 

date of this extended relief, the earlier of: (1) the reporting party no longer holding the requisite 

reasonable belief regarding the privacy law consequences of reporting; or (2) 12:01 a.m. 

eastern standard time on January 16, 2015.

The Division’s letter reflects the views of the Division only, and not necessarily the position or views 

of the Commission or of any other division or office of the Commission’s staff. The no-action position 

taken herein does not excuse affected persons from compliance with any other applicable requirements 

of the CEA or the regulations thereunder. As with all no-action letters, the Division retains the 

authority to, in its discretion, further condition, modify, suspend, terminate or otherwise restrict the 

terms of the no-action relief provided herein.

If you have any questions concerning this correspondence, please contact Sebastian Pujol Schott, 

Associate Director, Division of Market Oversight, at (202) 418-5641, or Stuart Armstrong, Special 

Counsel, Division of Market Oversight, at (202) 418-5095.

Sincerely,

_______________________

Vincent McGonagle

Director

Division of Market Oversight

 

2

“Reporting Counterparty” and “Reporting Entity” continue to have the same meaning here that they did in CFTC Letter 

No. 13-41.
3

U.S. COMMODITY FUTURES TRADING COMMISSION

Three Lafayette Centre

1155 21st Street, NW, Washington, DC 20581

Telephone: (202) 418-5000

Facsimile: (202) 418-5521

www.cftc.gov

Division of Market Oversight

CFTC Letter No. 13-41 APPENDIX 1 to CFTC Letter No. 14-89

No-Action

June 28, 2013

Division of Market Oversight

Robert Pickel

Chief Executive Officer

International Swaps and Derivatives Association, Inc.

1001 Pennsylvania Avenue, NW Suite 600

Washington, DC 20004

Time-Limited No-Action Relief Permitting Part 45 and Part 46 Reporting Counterparties to 

Mask Legal Entity Identifiers, Other Enumerated Identifiers and Other Identifying Terms and 

Permitting Part 20 Reporting Entities to Mask Identifying Information, with respect to certain 

Enumerated Jurisdictions.

Dear Mr. Pickel:

This is in response to your June 21, 2013 letter (the “Letter”) to the Division of Market Oversight (the 

“Division”) of the Commodity Futures Trading Commission (the “Commission”). By the Letter, you 

requested, pursuant to § 140.99 of the Commission’s regulations, on behalf of your members with 

reporting obligations under Parts 20, 45 or 46 of the Commission’s regulations (collectively, the 

“Reporting Rules”),1and other similarly situated persons, an extension of the expiration date for the 

no-action relief provided under CFTC Letter No. 12-46. 

You request that the Division extend the expiration date of the relief granted under CFTC Letter No. 

12-46 with respect to reportable transactions for which the reporting of Identity Information2is subject 

to statutory or regulatory prohibitions of one of the non-U.S. jurisdictions listed in the Annex to your 

Letter (each, an “Enumerated Jurisdiction”)3until the earlier of: (i) the reporting party no longer 

holding the requisite reasonable belief regarding the privacy law consequences of reporting; and (ii) 

12:01 a.m. eastern daylight time on June 30, 2014.

 

1 You note that the relief requested in the Letter also encompasses § 23.204 and § 23.205 of the Commission’s regulations.

2 You define “Identity Information” as “information that would otherwise be required to appear in one of the fields 

specified in Annex B [of your December 3, 2012 request letter] and that identifies or would intrinsically reveal the identity

of the counterparty or its affiliated group.”

3 The Enumerated Jurisdictions listed in the Annex to your June 21, 2013 letter are: France, Korea, Luxembourg, People’s 

Republic of China, Switzerland, Taiwan, Belgium, India, Algeria, Singapore, Bahrain, Argentina, Hungary, Samoa, 

Austria, and Pakistan.
4

Title VII of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Dodd-Frank 

Act”)4amended the Commodity Exchange Act (the “CEA”) to establish a comprehensive new 

regulatory framework for swaps. Amendments to the CEA included the addition of provisions 

requiring the retention and reporting of data regarding swap transactions.5 Pursuant to these newly 

added provisions, the Commission added to its regulations Part 45, which sets forth swap data 

recordkeeping rules, as well as rules for the reporting of swap transaction data to a registered swap data 

repository (“SDR”),6and Part 46, which sets forth swap data recordkeeping and reporting rules for preenactment swaps and transition swaps (collectively, “historical swaps”).7

 Part 20 of the Commission’s 

regulations sets forth large trader reporting rules for physical commodity swaps and requires routine 

swaps position reports from clearing organizations, clearing members and swap dealers, and 

establishes certain non-routine reporting requirements for large swaps traders.8 Each of Parts 45, 46 

and 20 require the Reporting Counterparty9or Reporting Entity10 (as applicable) to disclose identifying 

information.11

I. Defined Terms

For the purposes of the no-action relief provided herein, the Division will use the following defined 

terms:

(A) “Privacy Law Counterparty”

12

means a non-Reporting Counterparty or a Reporting 

Entity’s counterparty that meets all of the following criteria:

(1) The counterparty is not a Commission registered swap dealer (“SD”) or major swap 

participant (“MSP”);

 

4

Pub. L. 111-203, 124 Stat. 1376 (2010). 

5

See, e.g., Section 2(a)(13), which establishes requirements for the real-time reporting and public availability of swap 

transaction data; Section 21(b), which directs the Commission to prescribe standards for swap data recordkeeping and 

reporting; and Sections 4r and 2(h)(5), which, among other things, establish reporting requirements for historical swaps.

6

77 Fed. Reg. 2136 (January 13, 2012). 

7

77 Fed. Reg. 35200 (June 12, 2012).

8

76 Fed. Reg. 43851 (July 22, 2011).

9

For the purposes of this Division letter, Reporting Counterparty has the meanings assigned in § 45.1 and § 46.1 of the 

Commission’s regulations respectively, as applicable.

10 For the purposes of this Division letter, Reporting Entity has the meaning assigned in § 20.1 of the Commission’s 

regulations.

11 For all swaps subject to the jurisdiction of the Commission, each counterparty must be identified by means of a single 

legal entity identifier (“LEI”) in all swap data reporting pursuant to Part 45 and Part 46. See note 6, supra at 2204 and note 

7 supra at 35228. See also ORDER DETERMINING THE AVAILABILITY OF A LEGAL ENTITY IDENTIFIER 

MEETING THE REQUIREMENTS OF COMMISSION REGULATIONS, AND DESIGNATING THE PROVIDER OF 

LEGAL ENTITY IDENTIFIERS TO BE USED IN RECORDKEEPING AND SWAP DATA REPORTING PURSUANT 

TO THE COMMISSION'S REGULATIONS (CFTC Order of July 24, 2012). Part 20 of the Commission’s regulations 

requires, among other things, that a Reporting Entity disclose the identity of the counterparty in respect of which positional 

information is being reported in large swap trader reports and associated filings. See note 8, supra at 43863-4.

12 For the avoidance of doubt, nothing in this Division letter should be interpreted as providing relief from requirements to 

report the Opposite LEI, Other Enumerated Identifiers, Other Identifying terms and Part 20 Identifying information with 

respect to a swap counterparty that is: (1) a registered SD or MSP; (2) a U.S. person; (3) guaranteed by, or an affiliate 

conduit of a U.S. person; or (4) not located in an Enumerated Jurisdiction.
5

(2) The counterparty is a non-U.S. person;13

(3) The counterparty is not guaranteed by,14 or an affiliate conduit of,15 a U.S. person;16

and

(4) The counterparty is located in an Enumerated Jurisdiction.

17

(B) “Opposite LEI” means the LEI18 of a Privacy Law Counterparty to a swap. 

(C) “Privacy Law Identifier” is a unique identifier, which is not an LEI, and is used to 

identify a Privacy Law Counterparty pursuant to this Division letter. Each Reporting 

Counterparty shall use a consistent and static Privacy Law Identifier for a Privacy Law 

 

13 For purposes of this Division letter the term “U.S. person” has the meaning set forth in the Final Exemptive Order 

Regarding Compliance With Certain Swap Regulations (“January Order”) (See 78 Fed. Reg. 858 (January 7, 2013)) until 

the effective date of the Commission’s Final Interpretive Guidance and Policy Statement regarding the cross-border 

application of the swaps provisions of the Commodity Exchange Act (“Final Guidance”), upon which effective date the 

term “U.S. person” shall have the meaning set forth in the Final Guidance. For purposes of this Division letter, any person 

that is not a U.S. person is a “non-U.S. person.” Nothing in this Division letter should be interpreted as altering or 

superseding any Orders or Guidance issued by the Commission. 

14 The term “guaranteed by” is used for the purposes of this Division letter. The Commission explained that when a swap 

counterparty typically uses a guarantee as credit support for its swap obligations, the guarantor’s resources are added to the 

analysis of the swap because “the market will not trade with that counterparty at the same price, on the same terms, or at all 

without the guarantee.” The Commission stated that it viewed a guarantee as, generally, “a collateral promise by a 

guarantor to answer for the debt or obligation of a counterparty obligor under a swap.” See 77 Fed. Reg. 48225-48226 

(Aug. 13, 2012).

15 For the purposes of this Division Letter, an affiliate conduit encompasses those entities that function as a conduit or 

vehicle for U.S. persons conducting swaps transactions with third-party counterparties. Certain factors are relevant to 

considering whether a non-U.S. person is an “affiliate conduit” including: (i) the non-U.S. person is a majority-owned 

affiliate of a U.S. person; (ii) the non-U.S. person is controlling, controlled by or under common control with the U.S. 

person; (iii) the financial results of the non-U.S. person are included in the consolidated financial statements of the U.S. 

person; and (iv) the non-U.S. person, in the regular course of business, engages in swaps with non-U.S. third-party(ies) for 

the purpose of hedging or mitigating risks faced by, or to take positions on behalf of, its U.S. affiliate(s), and enters into 

offsetting swaps or other arrangements with its U.S. affiliate(s) in order to transfer the risks and benefits of such swaps with 

third-party(ies) to its U.S. affiliates. Other facts and circumstances also may be relevant. 

The term “majority-owned affiliates” is defined in Rule 1.3(ggg)(6)(i) as follows:

counterparties to a swap are majority-owned affiliates if one counterparty directly or indirectly owns a majority 

interest in the other, or if a third party directly or indirectly owns a majority interest in both counterparties to the 

swap, where ‘majority interest’ is the right to vote or direct the vote of a majority of a class of voting securities of 

an entity, the power to sell or direct the sale of a majority of a class of voting securities of an entity, or the right to 

receive upon dissolution or the contribution of a majority of the capital of a partnership. 

Rule 1.3(ggg)(4)(i) refers to an “entity controlling, controlled by or under common control with the person.” Footnotes 437 

and 438 of the Final Entities Rule elaborated on this provision, saying: 

[437] For these purposes, we interpret control to mean the possession, direct or indirect, of the power to direct or 

cause the direction of the management and policies of a person, whether through the ownership of voting 

securities, by contract or otherwise. This is consistent with the definition of ‘control’ and “affiliate” in connection 

with Exchange Act rules regarding registration statements. See Exchange Act rule 12b-2.

16 See note 13, supra.

17 See note 3, supra.

18 LEI is defined in § 45.6 of the Commission’s regulations. The current LEI designated by the Commission is known as a 

CFTC Interim Compliant Identifier (“CICI”), but is hereinafter referred to as an (“LEI”) for ease of reference. See note 11, 

supra.
6

Counterparty in each instance that it would use the Opposite LEI and Other Enumerated 

Identifiers.

(D) “Other Enumerated Identifiers” are: 

(1) the identity of the counterparty electing the clearing requirement exception in CEA 

Section 2(h)(7) for all asset classes;

(2) an indication of the counterparty purchasing protection or an indication of the 

counterparty selling protection (but not both) in the credit and equity asset classes;

(3) the buyer or seller (but not both) in the commodity asset class; and

(4) for all asset classes, the internal identifier used by an SDR for a non-Reporting 

Counterparty, exclusively in those cases where such internal identifier directly 

identifies the non-Reporting Counterparty (e.g., the internal identifier used by an 

SDR is the name of the non-Reporting Counterparty).

(E) “Other Identifying Term” means a term of a swap that a Reporting Counterparty 

reasonably believes would identify a Privacy Law Counterparty if disclosed, and is 

required to be reported pursuant to the following Part 45 data fields:19

(1) For swaps in the Foreign Exchange asset class (other than cross-currency swaps), the 

“Any other term(s) of the trade matched or affirmed by the counterparties in 

verifying the trade” data field required by Appendix 1 to Part 45, Exhibit B; and

(2) For swaps in the Interest Rate (including cross-currency swaps) and Other 

Commodity asset classes, the “Any other term(s) of the swap matched or affirmed by 

the counterparties in verifying the swap” data field required by Appendix 1 to Part 

45, Exhibits C and D. 

(F) “Part 20 Identifying Information” means the following Privacy Law Counterparty 

information: 

(1) The counterparty name field in § 20.4 submissions; and

(2) The following counterparty information included in a 102S filing pursuant to § 20.5:

(i) Name 

(ii) Address (except that the country of the counterparty shall be provided)

(iii) Contact Name

(iv) Contact Job Title

(v) Contact Phone

(vi) Contact Email

II. Masking of Opposite LEIs, Other Enumerated Identifiers and Other Identifying Terms 

Required by Part 45 and Part 46 of the Commission’s Regulations.20

 

19 The relief provided in this Division letter also permits Reporting Counterparties to temporarily withhold reporting of 

images reported pursuant to § 45.3 in cases where they would include LEIs, Other Enumerated Identifiers, and Other 

Identifying Terms (as defined in section I of this Division letter) that would otherwise require manual redaction. The relief 

provided in this Division letter in no way limits the obligation of a Reporting Counterparty to otherwise comply with § 

45.3, including the provision of “confirmation data normalized in data fields” as required by Commission regulations.
7

Based upon your representations,21 the Division believes that time-limited relief for Reporting 

Counterparties from the requirement to report the Opposite LEI, Other Enumerated Identifiers, and 

Other Identifying Terms pursuant to Parts 45 and 46 is warranted under specific conditions.22 The 

relief offered in this Division letter does not otherwise impact Reporting Counterparties’ continuing 

obligation to report pursuant to Parts 45 and 46 of the Commission’s regulations. 

Accordingly, the Division will not recommend that the Commission commence an enforcement action 

against a Reporting Counterparty for failure to report the Opposite LEI, Other Enumerated Identifiers, 

and Other Identifying Terms for any swap with a Privacy Law Counterparty for which the Reporting 

Counterparty has: 

(i) Formed a reasonable belief that statutory or regulatory prohibitions in the non-U.S. 

jurisdiction preclude the Reporting Counterparty from reporting the Opposite LEI, 

Other Enumerated Identifiers and Other Identifying Terms with respect to a specific 

non-Reporting Counterparty to a registered SDR as required by Parts 45 and 46;

(ii) Submitted a formal written request23 (the “Request”) to the relevant non-U.S. regulator 

or governing authority

24 that:

(1) describes the Reporting Counterparty’s Part 45 and Part 46 reporting obligations 

with respect to the swap(s) and non-Reporting Counterparty(ies) at issue in the 

Request, including the location where the swap(s) will be booked;

(2) requests that the non-U.S. regulator or governing authority specifically identify any 

statutes or regulations that would prohibit the Reporting Counterparty from 

reporting the Opposite LEI, Other Enumerated Identifier, or Other Identifying 

Terms for the non-Reporting Counterparty pursuant to Parts 45 and 46;

(3) requests that the non-U.S. regulator or governing authority specifically address the 

applicability of such statutes or regulations under the circumstances listed below or 

any other circumstances relevant to the Reporting Counterparty:

(a) swap transactions where the Reporting Counterparty is located and 

registered in the jurisdiction;

 

20 Nothing in this Division letter should be interpreted as altering the requirements of a Reporting Counterparty or 

Reporting Entity to include its own LEI, Other Enumerated Identifiers, and Part 20 Identifying information in all reporting 

pursuant to Parts 20, 45 and 46. 

21 Specifically, the relief provided in this Division letter is premised on the representations made in your June 21, 2013 

letter.

22 Section 23.204 of the Commission’s regulations requires swap dealers and major swap participants to comply with Part 

45 of the Commission’s regulations. To that extent only, section 23.204 is incorporated by reference into the no-action 

relief herein. 

23 The Division notes that a Reporting Counterparty may submit a request individually or rely on a request made by a group 

of market participants or an industry association on behalf of similarly situated entities.

24 The Division notes that the relevant regulator or governing authority is one that enforces the regulations or statutes that 

the Reporting Counterparty or Reporting Entity reasonably believes precludes it from reporting the Opposite LEI, Other 

Enumerated Identifiers, Other Identifying Terms, or Part 20 Identifying Information with respect to its counterparty. In 

circumstances where more than one statute or regulation may govern, the Reporting Counterparty or Entity must submit 

requests to each relevant non-U.S. regulator or governing authority.
8

(b) swap transactions where the Reporting Counterparty is located in the 

jurisdiction as a branch, including as a branch of a U.S. person;25

(c) swap transactions where the Reporting Counterparty is located in the 

United States but the non-Reporting Counterparty is located in the 

jurisdiction. 

(iii) Obtained a formal response to the Request26 from the relevant non-U.S. regulator or 

governing authority within 60 days from the issuance of this Division letter. 27 

Responses must specifically address items (2) and (3) above. A Reporting 

Counterparty may mask Opposite LEIs, Other Enumerated Identifiers, or Other 

Identifying Terms only to the extent that the non-U.S. regulator or governing 

authority has specifically indicated that reporting such information pursuant to 

Parts 45 and 46 of the Commission’s regulations would violate the law of the nonU.S. jurisdiction.28

The Division will extend this relief until the earlier of: (1) such time that the Reporting Counterparty 

no longer holds a reasonable belief that a regulatory or statutory prohibition precludes it from reporting 

the Opposite LEI, Other Enumerated Identifiers and Other Identifying Terms with respect to its nonReporting Counterparty to a registered SDR as required by Parts 45 and 46; and (2) 11:59 p.m. 

eastern daylight time June 30, 2014. Such no-action relief is subject to the following conditions:

i. Within 60 days of the issuance of this Division letter, the Reporting Counterparty must 

submit, to PrivacyLawReporting@cftc.gov, copies of formal Request letters submitted 

by the Reporting Counterparty or on its behalf, as well as responses received from the 

relevant non-U.S. regulator or governing authority and retain such, as part of its 

compliance with Commission recordkeeping requirements.29

ii. The Reporting Counterparty shall include the Privacy Law Identifier with all swap data 

reported pursuant to Parts 45 or 46 in each instance in which it would otherwise have 

been required to report an Opposite LEI or Other Enumerated Identifier; and

iii. Upon the expiration of the relief pursuant to clause (1) or (2) above, the Reporting 

Counterparty shall correct all Privacy Law Identifiers and Other Identifying Terms, 

 

25 See note 13, supra.

26 The Division notes that a Reporting Counterparty or Entity may rely on a formal response letter from a relevant non-U.S. 

regulator or governing authority that results from a Request made by group of market participants or by an industry 

association on behalf of similarly situated entities, so long as the content of the formal response letter addresses the facts 

and circumstances that pertain to the Reporting Counterparty or Entity as it intends to rely on the relief in this Division 

letter. In circumstances where more than one statute or regulation governs, the Reporting Counterparty or Entity must 

receive responses from each relevant non-U.S. regulator or governing authority.

27 The non-U.S. regulator’s or governing authority’s formal response must be in English or English translation.

28 For example, if the law of the non-U.S. jurisdiction prohibits reporting only with respect to natural persons, then a 

Reporting Party may mask information only with respect to non-Reporting Counterparties that are natural persons. 

Similarly, if the law of the non-U.S. jurisdiction states that reporting is permissible with the consent of the non-Reporting 

Counterparty, then Reporting Parties would be expected to obtain such consent and report Opposite LEIs, Other 

Enumerated Identifiers, and Other Identifying Terms pursuant to Parts 45 and 46 of the Commission’s regulations.

29 A Reporting Counterparty or Entity may not continue to rely on the relief provided in this Division letter if a formal 

response letter outlined in (iii) above is not issued to the Reporting Counterparty or Entity or to a group of market 

participants or an industry association on its behalf and sent to the Commission in accordance with condition i.
9

omitted or submitted in a masked form, to an SDR pursuant to this Division letter, with 

the corresponding Opposite LEIs, Other Enumerated Identifiers and Other Identifying 

Terms by no later than 30 days from the date of such expiration. Prior to making such 

corrections, a Reporting Counterparty shall notify the relevant SDR. 

III.Masking of Certain Identifying Information Required by Part 20 of the Commission’s 

Regulations.30

Based upon your representations,31 the Division believes that time-limited relief for Reporting Entities

from the requirement to report Part 20 Identifying Information pursuant to § 20.4 and § 20.5 of the 

Commission’s regulations is warranted under specific conditions.32 The relief offered in this Division 

letter does not otherwise impact Reporting Entities’ continuing obligation to report pursuant to Part 20 

of the Commission’s regulations. 

Accordingly, the Division will not recommend that the Commission commence an enforcement action 

against a Reporting Entity for failure to report Part 20 Identifying Information for any § 20.4 or § 20.5 

submission with respect to a swap with a Privacy Law Counterparty for which the Reporting Entity 

has: 

(i) Formed a reasonable belief that statutory or regulatory prohibitions in the non-U.S. jurisdiction 

preclude the Reporting Entity from reporting Part 20 Identifying Information;

(ii) Submitted a formal written Request33 to the relevant non-U.S. regulator or governing 

authority34 that:

(1) describes the Reporting Entity’s Part 20 reporting obligations with respect to the 

swap(s) and its counterparty at issue in the Request;

(2) requests that the non-U.S. regulator or governing authority specifically identify any 

statutes or regulations that would prohibit the Reporting Entity from reporting Part 

20 Identifying Information for its counterparty pursuant to Part 20;

(3) requests that the non-U.S. regulator or governing authority specifically address the 

applicability of such statutes or regulations under the circumstances listed below or 

any other circumstances relevant to the Reporting Entity:

(a) swap transactions where the Reporting Entity is located and registered in 

the jurisdiction;

(b) swap transactions where the Reporting Entity is located in the jurisdiction 

as a branch, including as a branch of a U.S. person;35

 

30 See note 20, supra.

31 See note 21, supra.

32 Nothing in this Division letter should be interpreted as altering the responsibility of a Reporting Entity to make reports 

required by § 20.4 and to make 102S filings pursuant to § 20.5, even if information in such filing is masked pursuant to this 

Division letter.

33 See note 23, supra.

34 See note 24, supra.

35 See note 13, supra.
10

(c) swap transactions where the Reporting Entity is located in the United 

States but its counterparty is located in the jurisdiction. 

(iii)Obtained a formal response to the Request36 from the relevant non-U.S. regulator or governing 

authority, within 60 days from the issuance of this Division letter. 37 Responses must 

specifically address items (2) and (3) above. A Reporting Entity may mask Part 20 

Identifying Information only to the extent that the non-U.S. regulator or governing 

authority has specifically indicated that reporting such information pursuant to Part 

20 of the Commission’s regulations would violate the law of the non-U.S. 

jurisdiction.38

The Division will extend this relief until the earlier of: (1) such time that the Reporting Entity no 

longer holds a reasonable belief that a regulatory or statutory prohibition precludes it from reporting 

Part 20 Identifying Information; and (2) 11:59 p.m. eastern daylight time June 30, 2014. Such noaction relief is subject to the following conditions:

i. Within 60 days of the issuance of this Division letter, the Reporting Entity must submit, 

to PrivacyLawReporting@cftc.gov, copies of formal request letters submitted by the 

Reporting Entity or on its behalf, as well as responses received from the relevant nonU.S. regulator or governing authority and retain such, as part of its compliance with 

Commission recordkeeping requirements.39

ii. The Reporting Entity shall make a Form 102S filing for the Privacy Law Counterparty 

in accordance with § 20.5, which filing shall include the country of such counterparty 

and an indication of the Part 20 Identifying Information of the counterparty redacted 

pursuant to this Division letter;

iii. The Reporting Entity shall report that information has been withheld due to privacy law 

for each Part 20 Identifying Information field not reported pursuant to this Division 

letter; and

iv. Upon the expiration of the relief pursuant to either clause (1) or (2) above, a Reporting 

Entity shall make a corrective Part 20 data submission for all Part 20 Identifying 

Information that was previously withheld or submitted in a masked form pursuant to 

this Division letter, by no later than 30 days from the date of such expiration. The 

Reporting Entity shall contact the Commission’s Office of Data and Technology 

(“ODT”) prior to making such corrective Part 20 data submission, and such submission 

shall be in a form and manner acceptable to ODT.

The no-action relief provided in this Division letter applies to Reporting Counterparties and Reporting 

Entities, regardless of whether they are members of ISDA. It applies to Opposite LEIs and Other 

 

36 See note 26, supra.

37 See note 27, supra.

38

 For example, if the law of the non-U.S. jurisdiction prohibits reporting only with respect to natural persons, then a 

Reporting Entity may mask information only with respect to counterparties that are natural persons. Similarly, if the law of 

the non-U.S. jurisdiction states that reporting is permissible with the consent of the counterparty, then Reporting Entities

would be expected to obtain such consent and report Part 20 Identifying Information pursuant to Part 20 of the 

Commission’s regulations.

39 See note 29, supra.
11

Enumerated Identifiers pursuant to Parts 45 and 46, Other Identifying Terms pursuant to Part 45 and 

Part 20 Identifying Information, with respect to Privacy Law Counterparties only.40 Further, the noaction relief provided in this Division letter in no way limits the Commission’s authority to request and 

obtain a Privacy Law Counterparty’s Identity Information. 

The no-action relief provided herein contains a collection of information, as that term is defined in the 

Paperwork Reduction Act.41 Therefore, a control number for the collection must be obtained from the 

Office of Management and Budget (“OMB”). In accordance with 44 U.S.C. § 3507(d) and 5 C.F.R. §§ 

1320.8 and 1320.10, the Division has filed with OMB and obtained an approved collection—3038-

0049—entitled “Procedural requirements for requests for interpretative, no-action and exemptive 

letters.” Accordingly, a Reporting Counterparty or Reporting Entity may not rely on the Division's 

determination not to recommend an enforcement action to the Commission unless it provides the 

information the Division has determined is essential to the provision of no-action relief.

The Division’s letter, and the no-action position taken herein, which is based on your representations, 

reflects the views of the Division only, and not necessarily the position or views of the Commission or 

of any other division or office of the Commission’s staff. The no-action position taken herein does not 

excuse affected persons from compliance with any other applicable requirements of the CEA or the 

regulations thereunder. As with all no-action letters, the Division retains the authority to, in its 

discretion, further condition, modify, suspend, terminate or otherwise restrict the terms of the no-action 

relief provided herein.

If you have any questions concerning this correspondence, please contact Sebastian Pujol Schott, 

Associate Director, Division of Market Oversight, at (202) 418-5641, or Stuart Armstrong, Attorney 

Advisor, Division of Market Oversight, at (202) 418-5095.

Sincerely,

_______________________

Richard A. Shilts

Acting Director

Division of Market Oversight

 

40 Should the Commission promulgate additional swap data reporting rules applicable to the subject matter covered herein 

during the pendency of this no-action relief, such rules could supersede the relief granted herein.

41 44 U.S.C. §§ 3501 et. seq.