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. 16-03 

No-Action 

January 15, 2016 

Division of Market Oversight 

Tara Kruse 

Co-Head of Data, Reporting and FpML 

International Swaps and Derivatives Association, Inc. 

360 Madison Avenue, 16th Floor 

New York, NY 10017 

Further Extension of the Time-Limited, Conditional No-Action Relief Provided in 

CFTC Letter 13-41; Additional Relief 

Dear Ms. Kruse: 

This is in response to your December 10, 2015 letter (“Letter”) to the Division of Market 

Oversight (“DMO”) 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 members of the International Swaps and Derivatives Association (“ISDA”) and other 

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

Commission’s regulations (the “Relevant Regulations”). Specifically, you request an extension 

of the expiration date of the no-action relief provided in CFTC Letter No. 15-01 and certain 

additional relief.1

Background 

As you are aware, DMO previously granted time-limited, conditional no-action relief in 

CFTC Letter No. 12-462until no later than 12:01 a.m. eastern daylight time June 30, 2013

regarding certain Identity Information (as defined in CFTC Letter No. 12-46)3

in certain nonU.S. jurisdictions referenced in your original no-action request to DMO dated December 3, 2012.

The relief covered ISDA members and other similarly situated persons with reporting obligations 

1

See CFTC Letter No. 15-01 (Jan. 8, 2015), available at

http://www.cftc.gov/idc/groups/public/@lrlettergeneral/documents/letter/15-01.pdf. 

2

See CFTC Letter No. 12-46 (Dec. 7, 2012), available at 

http://www.cftc.gov/idc/groups/public/@lrlettergeneral/documents/letter/12-46.pdf. 

3

See id. at 1, n.2. 
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under the Relevant Regulations. On June 28, 2013, DMO issued CFTC Letter No. 13-414

extending the relief provided in CFTC Letter No. 12-46, with respect to certain identifying 

information in “Enumerated Jurisdictions,”

5

until no later than 11:59 p.m. eastern daylight time 

June 30, 2014. On June 27, 2014, DMO issued CFTC Letter No. 14-89 extending the relief 

provided in CFTC Letter No. 13-41 until no later than 12:01 a.m. eastern standard time on 

January 16, 2015.6 On January 8, 2015, DMO issued CFTC Letter No. 15-01 (collectively with 

CFTC Letter Nos. 12-46, 13-41 and 14-89, the “Prior Letters”) updating and further extending 

the relief provided in CFTC Letter No. 13-41 until no later than 12:01 a.m. eastern standard time 

on January 16, 2016.7

As DMO stated in CFTC Letter No. 15-01, “the March 2014 report of the OTC 

Derivatives Regulators Group [noted that] there are statutory or regulatory prohibitions that may 

prevent reporting to trade repositories.”8 In a December 2, 2014 letter to DMO, you wrote that 

the prior expiration date of January 16, 2015 did not provide adequate time for resolution of the 

issues addressed in CFTC Letter No. 14-89, although international regulators and governing 

authorities continue their efforts in that regard. You explained in your Letter that this is still the 

case.9 Additionally, you request certain modifications to the relief offered under CFTC Letter 

No. 13-41. 

Requests for Additional Relief 

 

4

See CFTC Letter No. 13-41 (June 28, 2013), available at 

http://www.cftc.gov/idc/groups/public/@lrlettergeneral/documents/letter/13-41.pdf. 

5

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

the People’s Republic of China, Switzerland, Taiwan, Belgium, India, Algeria, Singapore, Bahrain, Argentina, 

Hungary, Samoa, Austria, and Pakistan. 

6

See CFTC Letter No. 14-89 (June 27, 2014), available at

http://www.cftc.gov/idc/groups/public/@lrlettergeneral/documents/letter/14-89.pdf. 

7

 CFTC Letter No. 15-01 updated the relief set forth in CFTC Letter No. 13-41 “by replacing the definition of ‘Part 

20 Identifying Information’ found in section I.(F) of CFTC Letter No. 13-41 by adding certain data elements to 

account for New Form 102S.” CFTC Letter No. 15-01 at 2. Form 102S was added to the Commission’s regulations 

in Ownership and Control Reports, Forms 102/102S, 40/40S, and 71, 78 FR 69178 (November 18, 2013). 

8

 CFTC Letter No. 15-01 at 1. 

9

For example, you noted in your letter that the Financial Stability Board (“FSB”) recently stated that: 

[b]arriers to reporting are widespread among FSB member jurisdictions, 

particularly in the case of reporting pursuant to foreign reporting requirements. 

While in many cases these barriers can be overcome through obtaining 

counterparty consent or authority authorisation, or through equivalence and 

recognition frameworks, in other cases barriers cannot be addressed in these 

ways.”

Thematic Review on OTC Derivatives Trade Reporting, Financial Stability Board (November 4, 2015). 

http://www.financialstabilityboard.org/wp-content/uploads/Peer-review-on-trade-reporting.pdf. 
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Reasonable Belief. First, in regards to the “reasonable belief” requirement specified in CFTC 

Letter No. 13-41, ISDA stated in its Letter that DMO should accept, as the basis for the 

“reasonable belief,” any one or more of three alternatives. DMO notes that one of these (the 

formal response from a foreign regulator or governing authority) is a separate condition of the 

relief in its own right. ISDA’s request as to the “reasonable belief” condition thus conflated two 

of the three conditions of the relief. DMO believes that it remains critical that the relevant party 

obtain, and provide DMO, a formal response from the relevant non-U.S. regulator(s) or 

governing authorit(ies) that reporting such information pursuant to the Relevant Regulations 

would violate the law of the non-U.S. jurisdiction.10 Therefore, this requirement, as set out in 

sections II(iii) and III(iii) of CFTC Letter No. 13-41, remains a condition of the relief provided 

herein. However, in regards to the issue raised by ISDA concerning what standard must be met 

to demonstrate that the reporting party has formed the requisite “reasonable belief,”

11 DMO 

notes that the current extension does not requires any particular means of forming the requisite 

“reasonable belief.”

In response to ISDA’s contention that, among other things, “the relevant authority may 

not have an established process for providing advisory guidance to market participants . . .,” 

DMO understands that any such instances that might exist are rare or unique in nature. In such 

cases, DMO might consider alternatives on a case-by-case basis. 

Privacy Law Counterparty. Second, ISDA contended in its Letter that “the requirement 

that the reporting party’s counterparty meet the definition of Privacy Law Counterparty, as defined in 

CFTC Letter No. 13-41, should be eliminated because the Privacy Laws of a non-US jurisdiction 

may apply to a transaction regardless of whether the reporting party’s counterparty falls within that

definition.” DMO intends to consider your request for expanded relief in this regard, as 

supplemented by additional, specific12 fact patterns ISDA may provide in the future, while the 

extension granted in this no-action letter is operative. 

Enumerated Jurisdictions. Third, ISDA stated that its list of Enumerated Jurisdictions for 

purposes of its latest request for relief includes six jurisdictions (Spain, Romania, Costa Rica, 

Uruguay, Venezuela and the Philippines) that were not identified as Enumerated Jurisdictions in 

CFTC Letter No. 13-41. ISDA added that DMO should expect ISDA to request additional 

jurisdictions to be defined as Enumerated Jurisdictions as industry participants “expand the scope of 

their activities across the globe.” ISDA recommended that: 

 

10 In CFTC Letter No. 13-41, DMO stated that “[a] Reporting Entity may mask Opposite LEIs, Other Enumerated 

Identifiers, . . . Other Identifying Terms [or 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 Parts [20,] 45 

and 46 of the Commission’s regulations would violate the law of the non-U.S. jurisdiction.” CFTC Letter No. 13-41 

at 6-7, 9. 

11 Both conditions II.(i) and III.(i) of CFTC Letter No. 13-41 require that the reporting party form a reasonable belief 

that reporting certain information under the Relevant Regulations would violate applicable foreign privacy laws. 

12 DMO does not intend to provide blanket relief for unspecified masking triggers, as it needs to carefully consider 

the implications of each, both individually and in the aggregate. 
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[i]n the interest of supervisory efficiency and economy . . . the 

requested relief be made available with respect to jurisdictions not 

included in the foregoing list if a reporting party (or a group or 

industry association on behalf of similarly situated parties) notifies 

[DMO] that the reporting party (or one or more members of the group 

or association) has formed the requisite reasonable belief with respect 

to the Privacy Laws of the new jurisdiction. 

DMO will permit additional jurisdictions to be included as Enumerated Jurisdictions to the extent 

all other conditions of the relief are satisfied, including, without limitation, obtaining the 

confirmation of relief from the relevant regulator(s) and governing authorit(ies) and submitting 

those confirmation letters to PrivacyLawReporting@cftc.gov, as discussed in CFTC Letter No. 

13-41. New jurisdictions will only be treated as Enumerated Jurisdictions on a going forward basis 

and only from the time all conditions are satisfied.

13

Privacy Law Identifier. ISDA also requested in its Letter that (1) the definition of 

“Privacy Law Identifier” used in CFTC Letter No. 13-41 be modified to permit the reporting 

party to use free text or other signifiers to withhold counterparty identity information and (2) 

DMO clarify that a reporting party may, but need not, use an identical Privacy Law Identifier in 

every report, because “identifiers may differ per asset class, middleware provider, or other 

factors.” ISDA asserted that such flexibility “would better accommodate the range of modalities 

(including vendor-provided middleware) used for reporting.” With respect to this request for 

expanded relief, DMO continues to believe that the relief provided in CFTC Letter No. 13-41 

strikes an appropriate balance between addressing concerns regarding non-U.S. privacy, secrecy 

and blocking laws and the regulatory purposes achieved through the reporting of counterparty 

identifying information pursuant to the Relevant Regulations. Accordingly, DMO is not 

modifying the relief provided in CFTC Letter No. 13-41 and associated conditions as requested 

with respect to the CFTC Letter No. 13-41 “Privacy Law Identifier” definition.

No-Action Relief 

DMO believes that a further time-limited, conditional extension of the existing relief in 

CFTC Letter No. 13-41, modified as discussed above in response to ISDA’s Letter, is 

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

their efforts to resolve issues raised in the Prior Letters and herein.

In light of the foregoing, DMO is extending the expiration of the relief provided in CFTC 

Letter No. 13-41, as amended by CFTC Letter No. 15-01 and herein, until the earlier of: (i) the 

reporting party no longer holding the requisite reasonable belief regarding the privacy law 

consequences of reporting, as discussed in the Prior Letters and modified herein; and (ii) 12:01 

 

13 As a condition of relief, CFTC Letter No. 13-41 required submitting to PrivacyLawReporting@cftc.gov within 60 

days of the date of CFTC Letter No. 13-41 request letters to foreign regulators or governing authorities and their 

responses. Because this no-action letter is not providing relief in connection with new Enumerated Jurisdictions 

until such letters and responses are received, there is no need to impose a 60 day deadline. 
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a.m. eastern standard time on March 1, 2017, contingent on satisfaction of the following 

conditions: 

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

regulators or governing authorities, each reporting counterparty and reporting entity may rely on 

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

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

such reporting counterparty or reporting entity previously obtained formal responses from the 

relevant non-U.S. regulators or governing authorities that such reporting counterparty or 

reporting entity believes satisfied the conditions in of sections II.(iii) and III.(iii) of CFTC Letter 

No. 13-41 and were submitted in accordance with the conditions in sections II.(ii) and III.(ii) of 

CFTC Letter No. 13-41. For any additional jurisdictions that become Enumerated Jurisdictions 

pursuant to the terms of this relief, any reporting counterparty and reporting entity must satisfy 

all the terms and conditions enumerated in CFTC Letter No. 13-41, as amended herein; and 

(2) Upon the expiration of this extended relief, each reporting counterparty and reporting 

entity must meet the back loading conditions found in sections II.iii and III.iv of CFTC Letter 

No. 13-41, based on the new expiration date of this extended relief. 

DMO’s letter reflects DMO’s views alone, and not necessarily the position or views of 

the Commission or of any other division or office of the Commission. 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, DMO 

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

otherwise restrict the terms of the no-action relief provided herein. 
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If you have any questions concerning this correspondence, please contact Dan Bucsa, 

Deputy Director, Division of Market Oversight—Data and Reporting Branch, at (202) 418-5435, 

Sebastian Pujol Schott, Associate Director, Division of Market Oversight—Compliance Branch, 

at (202) 418-5641, or David E. Aron, Special Counsel, Division of Market Oversight—Data and 

Reporting Branch, at (202) 418-6621. 

 

Sincerely, 

 

Vincent McGonagle 

Director 

Division of Market Oversight