SWAP DEALER DE MINIMIS EXCEPTION

PRELIMINARY REPORT

A REPORT BY STAFF 

OF THE U.S. COMMODITY FUTURES TRADING COMMISSION 

PURSUANT TO REGULATION 1.3(ggg)

November 18, 2015 

DISCLAIMER

This is a report by staff of the U.S. Commodity Futures Trading Commission.

Any views expressed in this report are only the views of staff, and do not necessarily 

represent the positions or views of any Commissioner or the Commission. 
i

Table of Contents

I. Introduction and Overview.................................................................................................. 1

A. Introduction......................................................................................................................... 1

B. Overview............................................................................................................................. 3

C. Comments........................................................................................................................... 4

II. Background ........................................................................................................................... 6

A. Statutory Swap Dealer Definition....................................................................................... 6

B. Regulatory Provisions......................................................................................................... 7

1. What Activity Constitutes Swap Dealing..................................................................... 7

2. De Minimis Exception .................................................................................................. 7

3. Calculation of Dealing Activity.................................................................................... 8

4. Establishment of Notional Amount Threshold and Phase-in Period............................ 9

III. Findings – Data, Methodology, and Analysis................................................................... 10

A. Description of Available Data .......................................................................................... 11

1. Data Source and Review Period ................................................................................. 11

2. Asset Classes Covered................................................................................................ 11

B. Assumptions and Methodology ........................................................................................ 12

1. Legal Entity Identifier Assumptions........................................................................... 12

2. Unique Swap Identifier Assumptions......................................................................... 13

3. Entity-Based Assumptions ......................................................................................... 15

4. Activity-Based Assumptions...................................................................................... 16

(i) Inter-Affiliate Exclusion ......................................................................................... 17

(ii) Cross-Border Considerations.................................................................................. 17

5. Notional Value and Alternative Measures of Dealing Activity ................................. 18

C. Findings............................................................................................................................. 21

1. IRS and CDS .............................................................................................................. 21

(i) Application of Entity Filters ................................................................................... 21

(ii) Application of Cross-Border Guidance .................................................................. 23

(iii) Aggregating Across Affiliated Entities................................................................... 23

2. Equity Swaps.............................................................................................................. 25

3. FX Derivatives............................................................................................................ 27
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4. Non-Financial Commodity Swaps.............................................................................. 30

D. Measuring Potential Swap Dealing Activity across Asset Classes................................... 32

IV. Policy Objectives and Considerations Relating to the De Minimis Exception .............. 34

A. General Policy Considerations.......................................................................................... 35

1. Policies for Regulating Swap Dealers........................................................................ 35

(i) Reduction in Systemic Risk.................................................................................... 35

(ii) Counterparty Protections ........................................................................................ 35

(iii) Swap Market Transparency, Orderliness, and Efficiency ...................................... 36

2. Policies Advanced by a De Minimis Exception.......................................................... 36

(i) Regulatory Certainty............................................................................................... 37

(ii) Allowing Limited Ancillary Dealing...................................................................... 37

(iii) Encouraging New Participants................................................................................ 37

(iv) Regulatory Efficiency ............................................................................................. 38

B. Policy Considerations for Certain Sectors of the Swap Markets...................................... 38

1. Non-Financial Commodity Swap Dealing ................................................................. 39

2. Small to Mid-Sized Banking Enterprises ................................................................... 43

V. De Minimis Exception Alternatives................................................................................... 47

A. Higher or Lower Gross Notional De Minimis Threshold ................................................. 48

B. Alternative Approaches to the De Minimis Exception ..................................................... 51

1. Different De Minimis Notional Thresholds by Asset Class Alternative .................... 51

2. Multi-Factor De Minimis Threshold Alternative........................................................ 54

3. Multi-Tiered Swap Dealer Regulation Alternative .................................................... 57

4. Swaps Executed on a SEF or DCM and/or Cleared ................................................... 61

Appendix A................................................................................................................................ A-1
1

I. Introduction and Overview

A. Introduction

On July 21, 2010, President Obama signed into law the Dodd-Frank Wall Street Reform 

and Consumer Protection Act (“Dodd-Frank Act”).1 Title VII of the Dodd-Frank Act 

established a statutory framework to reduce risk, increase transparency, and promote market 

integrity within the financial system by regulating the over-the-counter swap market. Among 

other things, the Dodd-Frank Act amended the Commodity Exchange Act (“CEA”)2 to provide 

for the registration and regulation of swap dealers. The Dodd-Frank Act directed the U.S. 

Commodity Futures Trading Commission (“Commission” or “CFTC”) and the U.S. Securities 

and Exchange Commission (“SEC” and together with the CFTC, “Commissions”) jointly to 

further define, among other terms, the term “swap dealer”3 and to exempt from designation as a 

swap dealer an entity that engages in a de minimis quantity of swap dealing.4 

Pursuant to that statutory requirement, the Commissions jointly issued CFTC Regulation

(“Regulation”) 1.3(ggg)5 defining the term “swap dealer” and providing for a de minimis 

exception therein, which states that a person shall not be deemed to be a swap dealer unless its 

swap dealing activity (as defined by the Commissions) exceeds an aggregate gross notional 

amount threshold of $3 billion (measured over the prior 12-month period), subject to a phase-in 

 1 Pub. L. 111-203, 124 Stat. 1376 (2010). The text of the Dodd-Frank Act can be accessed on the Commission’s 

website, at www.cftc.gov.

2 The CEA is found at 7 U.S.C. 1, et seq. (2012). The CEA is accessible on the Commission’s website, at 

www.cftc.gov.

3 See the definitions of swap dealer in Section 1a(49) of the CEA and Commission regulation 1.3(ggg). 7 U.S.C. 

§ 1a(49) and 17 C.F.R. § 1.3(ggg).

4 See Dodd-Frank Act § 721.

5 Commission regulations referred to herein are found at 17 C.F.R. Ch. 1 (2014). Commission regulations are 

accessible on the Commission’s website, at www.cftc.gov.
2

period during which the gross notional amount threshold is set at $8 billion.

6

 Under the terms of 

Regulation 1.3(ggg)(4), the phase-in period will terminate on December 31, 2017, and the de 

minimis threshold will fall to $3 billion, unless the CFTC takes prior action to set a different 

termination date or to modify the de minimis exception. 

The Commissions acknowledged at the time they adopted the definition of the term 

“swap dealer” and the attendant de minimis exception that they were relying on the limited data 

available at that time regarding the swap market, as it then existed, to guide their determinations. 

Moreover, the Commissions were uncertain how the swap market would evolve following 

implementation of Title VII. In recognition of these limitations and in anticipation of additional 

swap market data becoming available to the CFTC through the reporting of transactions to swap 

data repositories (“SDRs”), the Commission adopted Regulation 1.3(ggg)(4)(ii)(B), which 

directs CFTC staff to complete and publish for public comment a report on topics relating to the 

definition of the term “swap dealer” and the de minimis threshold “as appropriate, based on the 

availability of data and information.”7

Regulation 1.3(ggg)(4) provides that nine months after the publication of a staff report

and after giving due consideration to the report and any associated public comment, the CFTC

may either set a termination date for the phase-in period or issue a notice of proposed rulemaking 

to modify the de minimis exception.

 6 See Further Definition of “Swap Dealer,” “Security-Based Swap Dealer,” “Major Swap Participant,” “Major 

Security-Based Swap Participant” and “Eligible Contract Participant”, 77 Fed. Reg. 30596 (May 23, 2012). Staff 

notes that a joint rulemaking with the SEC is not necessary to amend the de minimis exception, pursuant to 

Commission regulation 1.3(ggg)(4). Id. at 30634 n.464.

7 Similarly, the SEC adopted Exchange Act Rule 240.3a71–2A, which directs SEC staff to prepare a report that 

addresses, among other things, the rule adopted by the Commissions further defining the term “‘security-based swap 

dealer’ (including the de minimis exception to that definition) and ‘major security-based swap participant.’” 17 

C.F.R. § 240.3a71-2A.
3

In the interest of providing ample opportunity for inclusion of public input on the relevant 

policy considerations, as well as on staff’s preliminary analysis of the SDR data, and to ensure 

that the Commission has as much information and data as practicable for purposes of its 

determinations with respect to the de minimis exception, staff is issuing and seeking public 

comment on this preliminary report concerning the de minimis exception to the swap dealer 

definition in Regulation 1.3(ggg)(4) (“Preliminary Report”). After considering the comments 

it receives on this Preliminary Report, staff will complete and publish for public comment a final 

report (“Final Report”).

Throughout the Preliminary Report, staff poses questions and seeks comment from the 

public, with supporting data whenever available, in order to obtain as much relevant information 

as possible, and to ensure that the Commission can consider the perspectives of all market 

participants and members of the public as it evaluates this key component of swap market 

regulation. Any views expressed in this Preliminary Report are views of CFTC staff only and do 

not necessarily represent the positions or views of any Commissioner or the Commission.

B. Overview 

Section II of this Preliminary Report provides a background discussion regarding the 

relevant statutory and regulatory provisions defining the term “swap dealer” and implementing 

the de minimis exception. Section II also discusses the scope of this Preliminary Report. 

Section III discusses the data staff considered in preparing this Preliminary Report, 

including various reporting and data quality issues, methodology (including assumptions made)

for analyzing the data, and a set of findings that serve as estimates for relevant measures of swap 

dealing activity considered in this Preliminary Report. 
4

Section IV discusses the policies underlying swap dealer registration and regulation and 

the de minimis exception that form the basis for evaluating the swap market data for this 

Preliminary Report. Section IV also includes a discussion of considerations relating to the de 

minimis exception that are unique to particular segments of the swap market. 

As contemplated by Regulation 1.3(ggg)(4)(ii)(B) and the preamble to the swap dealer 

definition, Section V discusses the data in light of alternative approaches to a de minimis 

exception, including some that have been previously suggested.8 Although it is beyond the 

scope of this Preliminary Report to evaluate the advantages and disadvantages of those 

alternatives, the Preliminary Report notes some of the general policy issues that may be relevant 

to further consideration of such alternatives. 

C. Comments

Comments on this Preliminary Report must be received on or before January 19, 2016. You 

may submit comments, identified by “Comments on Swap Dealer De Minimis Exception Preliminary 

Report,” by any of the following methods:

• Agency Web Site: http://www.cftc.gov. 

• Mail: Secretary of the Commission, Commodity Futures Trading Commission, Three 

Lafayette Centre, 1155 21st Street NW, Washington, DC 20581. 

• Hand Delivery/Courier: Same as mail above. 

Please submit your comments using only one method. All comments must be submitted 

in English or accompanied by an English translation. Comments will be posted as received to 

www.cftc.gov. You should submit only information that you wish to make available publicly. If 

you would like to submit information that is exempt from disclosure under the Freedom of 

 8 77 Fed. Reg. at 30365.
5

Information Act, a petition for confidential treatment of the exempt information may be 

submitted according to the procedure established in Regulation 145.9.

The CFTC reserves the right, but shall have no obligation, to review, pre-screen, filter, 

redact, refuse, or remove any or all of your submission from www.cftc.gov that it may deem to 

be inappropriate for publication, such as obscene language. All submissions that have been 

redacted or removed that contain comments on the merits of the Preliminary Report will be 

retained in the public comment file and will be considered as required under the Administrative 

Procedure Act and other applicable laws, and may be accessible under the Freedom of 

Information Act.

This Preliminary Report was prepared by staff from the Division of Swap Dealer and 

Intermediary Oversight and the Office of the Chief Economist. For further information 

contact: Eileen Flaherty, Director, 202-418-5326, eflaherty@cftc.gov; Erik Remmler, Deputy 

Director, 202-418-7630, eremmler@cftc.gov; Lauren Bennett, Special Counsel, 202-418-5290, 

lbennett@cftc.gov; Margo Dey, Special Counsel, 202-418-5276, mdey@cftc.gov; or Rajal Patel, 

Special Counsel, 202-418-5261, rpatel@cftc.gov, Division of Swap Dealer and Intermediary 

Oversight; Sayee Srinivasan, Chief Economist, 202-418-5309, ssrinivasan@cftc.gov; or Esen 

Onur, Economist, 202-418-6146, eonur@cftc.gov, Office of the Chief Economist, Commodity 

Futures Trading Commission, Three Lafayette Center, 1155 21st Street N.W., Washington, DC 

20581. John Coughlan and Jeff Hasterok, Data and Risk Analysts in the Division of Swap 

Dealer and Intermediary Oversight, and John Roberts, Research Analyst in the Office of the 

Chief Economist are also recognized for their significant contributions to this Preliminary 

Report.
6

II. Background

A. Statutory Swap Dealer Definition

The Dodd-Frank Act amended the CEA to provide for the registration and regulation of 

swap dealers.

9

 Accordingly, the Commission has adopted regulations to implement the CEA’s 

statutory provisions applicable to swap dealers. Under those regulations, swap dealers are 

subject to a broad range of requirements, including, inter alia, requirements applicable to 

registration, internal and external business conduct, reporting and recordkeeping, risk 

management, and chief compliance officer designation and responsibilities.10 In addition, swap 

dealers must become and remain members of a registered futures association.11 Thus, 

determining who is a swap dealer, as defined by the CEA and Commission regulations, has 

significant implications for individual entities as well as for the oversight of the swap market. 

CEA Section 1a(49) defines the term “swap dealer” to include any person who: (1) holds 

itself out as a dealer in swaps; (2) makes a market in swaps; (3) regularly enters into swaps with 

counterparties as an ordinary course of business for its own account; or (4) engages in any 

activity causing the person to be commonly known in the trade as a dealer or market maker in 

swaps.

12 CEA Section 1a(49) directs the Commission to “exempt from designation as a swap 

dealer an entity that engages in a de minimis quantity of swap dealing in connection with 

 9 See generally 7 U.S.C. § 6s.

10 See generally 17 C.F.R. §§ 3.3 and 23.

11 See 17 C.F.R. § 170.16. Currently, the only such association is the National Futures Association (“NFA”). As 

a member of NFA, a swap dealer must comply with NFA rules and must pay annual dues, which may be as much as 

$1 million, depending on the size of the swap dealer. See NFA Membership and Dues, available at: 

http://www.nfa.futures.org/NFA-registration/NFA-membership-and-dues.HTML.

12 In general, a person that satisfies any one of the prongs in the swap dealer definition is engaged in swap dealing 

activity. The statutory swap dealer definition also provides an exclusion for an insured depository institution 

(“IDI”) that enters into a swap in connection with a loan, as further discussed in Appendix A. 
7

transactions with or on behalf of its customers” and to “promulgate regulations to establish 

factors with respect to the making of this determination to exempt.”13

The CFTC adopted Regulation 1.3(ggg), which further defines the term “swap dealer,” 

and includes an exception from that definition for a person who engages in a de minimis amount 

of swap dealing.14

B. Regulatory Provisions

Broadly stated, whether a particular person is a swap dealer will depend on the answer to 

two questions: (1) does the person engage in activity that constitutes “swap dealing”; and (2) is 

that swap dealing activity more than de minimis?

1. What Activity Constitutes Swap Dealing 

Whether a person’s swap activity constitutes “dealing” is a key element in determining 

whether that person comes within the swap dealer definition and is based on the facts and 

circumstances of a person’s swaps activities.15 Regulation 1.3(ggg) provides that certain swaps 

are not considered in the determination of whether a person is a swap dealer, as discussed 

below.

16 

2. De Minimis Exception 

If a person is engaged in swap dealing activity, there must be a determination of whether 

the person is engaged in more than a de minimis amount of swap dealing as established in the 

Commission’s regulations. If so, the person is a swap dealer and must register with the 

Commission. 

 13 7 U.S.C. § 1a(49).

14 See 77 Fed. Reg. 30596.

15 See, e.g., id. at 30609.

16 See 17 C.F.R. §§ 1.3(ggg)(5) and 1.3(ggg)(6).
8

Regulation 1.3(ggg)(4) provides that a person “shall be deemed not to be a swap dealer” 

as long as the positions connected with the person’s dealing activities during the preceding 12-

month period do not exceed an aggregate gross notional amount threshold of $3 billion, subject 

to a phase-in level of $8 billion that is currently in effect. The regulation provides a separate 

lower notional amount threshold of $25 million that is not subject to a phase-in level for dealing

swaps for which the counterparty is a “special entity.”17 The Commissions explained that this

lower, $25 million threshold was appropriate given the special protections that Title VII affords 

to special entities.18 The special entity de minimis threshold is not the focus of this Preliminary 

Report.

3. Calculation of Dealing Activity

Generally, an entity must count all swaps it enters into for dealing purposes towards its de 

minimis calculation. In addition, each entity that does not independently exceed the de minimis 

threshold must also include the notional amount of swaps of any other unregistered affiliate 

controlling, controlled by, or under common control with that entity in its de minimis calculation

(often referred to as “aggregation”).

19 

As further explained in Appendix A, pursuant to various CFTC regulations, interpretive 

guidance, and staff letters, certain swaps, subject to specific conditions, need not be counted in 

an entity’s de minimis calculation, including: swaps related to loans made by insured depository 

institutions (“IDI Exclusion”); swaps between affiliates (“Inter-Affiliate Exclusion”); swaps by 

 17 The term “special entity” includes, among other persons, state governments, Federal and state agencies, certain 

government employee benefit plans under the Employee Retirement Income Security Act of 1974 and endowments. 

See 17 C.F.R. § 23.401(c).

18 See 77 Fed. Reg. at 30642. These heightened protections are reflected in CEA Section 4s(h), which sets forth 

additional requirements applicable to swap dealers when dealing with special entities.

19 17 C.F.R. § 1.3(ggg)(4); Interpretive Guidance and Policy Statement Regarding Compliance With Certain Swap 

Regulations, 78 Fed. Reg. 45292, 45323 (July 26, 2013).
9 

cooperatives with members (“Cooperative Exclusion”); swaps hedging physical positions 

(“Physical Hedging Exclusion”); swaps by floor traders (“Floor Trader Exclusion”); crossborder swaps; FX swaps and FX forwards (“FX Exemption”); commodity trade options 

(“Commodity Trade Option Exemption”); and swaps resulting from portfolio compression 

(“Portfolio Compression No-Action Relief”). Further, certain inter-governmental or quasigovernmental international financial institutions are not included within the term “swap dealer” 

(“International Financial Institution Treatment”). 

4. Establishment of Notional Amount Threshold and Phase-in Period

In adopting the de minimis exception, the Commissions explained that the information 

then available regarding certain portions of the swap market was limited, and that they expected 

more information to be available in the future, which would enable the Commission to assess the 

effectiveness of the exception and to revise it as appropriate.20 The Commissions established the 

threshold for the de minimis exception in the swap dealer definition at an aggregate gross 

notional amount of $3 billion. The Commissions stated: 

[W]e believe an appropriate balance of the goal of promoting the 

benefits of regulation (while recognizing the unquantifiable nature 

of those benefits) against the competing goal of avoiding the 

imposition of burdens on those entities for which regulation as a 

dealer would not be associated with achieving those benefits in a 

significant way, would be reached by setting the notional standard 

for swaps at a level that is near . . . 0.001 percent of a reasonable 

estimate of the overall domestic market for all swaps between all 

counterparties. We believe a $3 billion notional value standard is 

appropriate taking all these considerations into account.21

The Commissions provided, however, for a phase-in period during which the de minimis 

threshold is set at $8 billion, explaining that it would: (1) permit market participants and the 

 

20 See 77 Fed. Reg. at 30634.

21 Id. at 30633. 
10

Commissions to become familiar with the application of the swap dealer definition and 

regulatory requirements; (2) afford the Commissions time to study the swap market as it evolves

and to consider new information about the swap market that becomes available (e.g., through 

swap data reporting); (3) provide potential swap dealers that engage in smaller amounts of 

activity additional time to adjust their business practices, while at the same time preserving a 

focus on the regulation of the largest and most significant swap dealers; and (4) address 

comments suggesting that the de minimis threshold be set higher initially to provide for efficient 

use of regulatory resources and that implementation of swap dealer requirements overall be 

phased.22

Registered swap dealers began reporting swap data on December 31, 2012 or February 

28, 2013, depending on the type of swap. The analysis in this Preliminary Report draws on SDR 

data currently available to staff. In issuing this Preliminary Report, staff is mindful of the role 

the public and market participants can serve by addressing relevant policy considerations, as well 

as by providing any additional data and input on staff’s methodology, analysis, and interpretation 

of the data. By soliciting public comment prior to completing and publishing a Final Report, 

staff seeks to better inform and assist the Commission as it considers the de minimis exception.

III. Findings – Data, Methodology, and Analysis

This section describes the data used for this Preliminary Report and also discusses staff’s 

methodology to identify potential swap dealing activity for purposes of assessing the de minimis

exception. The section also outlines some of the data-related issues staff faced in identifying 

potential swap dealing activity. 

 22 See id. at 30633-34. 
11

A. Description of Available Data

1. Data Source and Review Period

The data used in this Preliminary Report was sourced primarily from data reported to the 

four registered SDRs: Chicago Mercantile Exchange Swap Data Repository, DTCC Data 

Repository, ICE Trade Vault, and BSDR, LLC. For the 12-month period reviewed, April 1, 

2014 through March 31, 2015 (“Review Period”), the Commission received approximately 67 

million transaction records with as many as 1,000 data fields per record from the SDRs.

The data now being collected by the SDRs is a tremendous advance since the 

Commissions set the de minimis exception in May 2012; it enables staff and the public to 

consider the policy issues related to the de minimis exception on the basis of much better 

information. At the same time, staff notes that the SDR data is still relatively new, and there is 

still significant ongoing work to improve it in various ways. This work includes standardizing

reporting fields, harmonizing data among SDRs, and ensuring that market participants comply 

with their obligations to provide timely and accurate data. Therefore, there were some 

limitations on working with the data, as discussed below.

2. Asset Classes Covered

Staff analyzed data for the five asset classes of swaps that are within the Commission’s 

jurisdiction: credit default swaps (“CDS”); interest rate swaps (“IRS”); non-financial 

commodity (“Non-Financial Commodity”) swaps; foreign exchange derivatives (“FX

Derivatives”);

23 and equity (“Equity”) swaps.24 

 23 Only certain FX transactions count towards an entity’s de minimis calculation. See Appendix A.

24 See generally Swap Data Recordkeeping and Reporting Requirements, 77 Fed. Reg. 2136 (Jan. 13, 2012).
12

B. Assumptions and Methodology

This section discusses the methodology and assumptions used to identify potential swap

dealing activity for this Preliminary Report. Under the definition of swap dealer, only an entity’s 

dealing activities count towards its de minimis calculation. However, the SDR data does not 

include data fields to indicate whether a transaction is entered into for dealing purposes. 

Therefore, staff has used certain methods and made assumptions to identify entities engaged in 

potential swap dealing activity (“Potential Swap Dealing Entities”). This includes the 

development of methods to exclude some categories of participants that are not likely to be 

engaged in dealing, based on the nature of their business activities. Staff notes that the purpose 

of these “filters,” as described below, is solely to generate estimates that help refine the analysis 

for purposes of this Preliminary Report; these methods are not a determinative basis for deciding 

whether any particular entity is engaged in swap dealing. 

In addition, as discussed above, certain swaps, subject to specific conditions, need not be 

counted in an entity’s de minimis calculation; however, such swaps are not always readily 

identifiable in the SDR data. As a result of the limited information available in the SDR data, 

and the assumptions necessary to conduct an analysis of dealing activity, the findings in this 

Preliminary Report should be viewed as estimates to assist the Commission, market participants, 

and the public in assessing the current de minimis exception. Furthermore, the data used for this 

Preliminary Report reflects past swap activity, and depending upon the changes, if any, made to 

the de minimis exception, market participants’ behaviors may change. 

1. Legal Entity Identifier Assumptions

A fundamental data issue is the need to accurately identify market participants. The 

recent establishment of the Legal Entity Identifier (“LEI”) framework was intended to allow 
13

financial regulators to effectively aggregate and analyze an entity’s market activity. However, 

this relatively new reporting requirement has not been universally implemented by all market 

participants. For example, with respect to IRS and CDS, staff found that over 14% of all 

transactions, or approximately 260,000 transactions, reported to SDRs during the Review Period 

lacked a valid LEI for one or both counterparties. The aggregate notional amount of these 

transactions was approximately $30 trillion, comprising approximately 23% of the total notional 

amount of IRS and CDS. Accordingly, certain assumptions were made regarding swaps with 

LEI errors. For example, all generic identifiers that were not proper LEIs were grouped into a 

single “unknown” entity and collectively counted as one counterparty, because without further 

information, it was not possible to identify the actual counterparties. This assumption likely 

resulted in lower counterparty count statistics.

2. Unique Swap Identifier Assumptions

Another data issue for calculating a de minimis level for each entity is the need to have 

each SDR record pertain to a unique transaction. A unique swap identifier (“USI”) identifies 

each swap executed. Staff discovered many instances in which a single swap had multiple USIs 

assigned to it over its life cycle. The three most common reasons for one swap to be associated 

with multiple USIs – clearing, allocations, and compressions – are described in greater detail 

below. Additionally, staff observed many instances in which a single USI was used to identify 

multiple swaps. Staff removed duplicative swaps from the data when they could be identified. 

However, if they could not be identified and excluded, the findings related to aggregate notional 

activity and total transaction counts were likely overestimated.

Cleared Swaps. Cleared swaps are reported as three separate and distinct swaps: the 

original “alpha” swap, and the two equal and opposite resulting “beta” and “gamma” swaps with 
14 

the derivatives clearing organization (“DCO”) that are reported when the alpha swap is 

cleared.25 The novation process involves termination of the alpha and replacement with the beta 

and gamma. If reporting counterparties do not identify these transactions as related, it may not 

be possible to link and reconcile the transactions, which may result in a single swap being 

counted more than once. The finalization and implementation of the recent proposed rulemaking 

for reporting of cleared swaps should help to mitigate this issue going forward.26 

Bunched Trades. Bunched trades occur when transactions for multiple accounts are 

grouped into a single transaction for execution. Duplication occurs when a reporting 

counterparty first reports the execution of the bunched transaction with the agent listed as its 

counterparty (typically an asset manager). Once the agent informs the reporting counterparty of 

the identities of the entities across which the trade is being allocated, the reporting counterparty 

should report each swap resulting from the allocation to the SDR. Each allocated swap should 

be assigned a new USI that is linked to the initial swap. However, in many instances, linking 

identifiers did not exist in the data, resulting in both the original bunched trade and the 

allocations being included in the analysis. 

Compressions. Compressions involve the termination of an existing portfolio of swaps 

and replacement with a smaller number of swaps with a similar risk profile, but a smaller 

aggregate notional size.27 In the SDR data used for staff’s analysis, it was not possible to 

identify, and therefore exclude from the analysis, swaps resulting from portfolio compressions. 

 

25 See Review of Swap Data Recordkeeping and Reporting Requirements, 79 Fed. Reg. 16689, 16694 (Mar. 26, 

2014).

26 See Amendments to Swap Data Recordkeeping and Reporting Requirements for Cleared Swaps, 80 Fed. Reg. 

52544 (proposed Aug. 31, 2015).

27 See generally 17 C.F.R. §§ 23.500(b) and (h).
15

3. Entity-Based Assumptions

Given that staff could not definitively identify all entities that engaged in swap dealing 

activity during the Review Period, staff employed certain assumptions to exclude those entities 

that were not likely engaged in dealing based on the nature of their business activities. 

Specifically, market participants in the following categories were excluded from consideration as 

potential swap dealers for purposes of this analysis (“Entity Filters”). As previously noted, 

these methods are not a determinative means of assessing whether any particular entity is 

engaged in swap dealing. 

a) Collective investment vehicles (e.g., mutual funds, commodity pools, pension plans, 

hedge funds, etc.). Though these entities’ activities accounted for a significant portion of total 

notional activity during the Review Period, staff assumed that these entities entered into swaps 

primarily for investing or hedging purposes on behalf of their investors, rather than for purposes 

of accommodating counterparty demand, making markets, or otherwise engaging in swap 

dealing activity. 

b) Foreign central banks and other government related international financial 

institutions. The Commission has previously determined that these entities were not intended to 

be designated as swap dealers.28 

c) Cooperatives. Given that financial cooperatives typically provide services to their 

members, staff assumed that all, or nearly all, of these entities’ dealing swaps were executed with 

their members and were therefore excluded from the de minimis calculation pursuant to the 

Cooperative Exclusion.29 Furthermore, given the commercial nature of non-financial 

 28 77 Fed. Reg. at 30693.

29 Id. at 30625.
16 

cooperatives’ businesses, staff assumed that the majority of these cooperatives’ IRS transactions 

were entered into for hedging or other non-dealing purposes. 

d) Insurance companies and non-bank financing companies. Staff assumed that these 

types of entities generally entered into swaps for the purposes of hedging or investing rather than 

dealing.30 

Staff attempted to assess the validity of the Entity Filters by reviewing the activity of 

those entities that were removed pursuant to each filter. As the Commission has previously 

noted, entities that are engaged in swap dealing activity tend to have more counterparties than 

non-dealing entities.31 In conducting its validity assessment, staff observed that of the thousands 

of entities that were removed using the Entity Filters, the vast majority had very few unique 

counterparties. In fact, very few of the excluded entities executed swaps with more than 50 

unique counterparties during the Review Period.32 Therefore, staff believes that use of the Entity

Filters appeared to exclude entities from this analysis that were not likely engaged in swap 

dealing activities. 

4. Activity-Based Assumptions

While the Entity Filters served to remove entire categories of entities that were likely not 

engaged in swap dealing, staff sought to further refine its analysis by excluding certain types of 

 

30 Non-bank financing companies are those institutions who offer certain financial services, such as lending, but 

are not licensed banks (e.g., some automotive loan and mortgage companies).

31 Further Definition of “Swap Dealer,” “Security-Based Swap Dealer,” “Major Swap Participant,” “Major 

Security-Based Swap Participant” and “Eligible Contract Participant”, 75 Fed. Reg. 80174, 80177 (proposed Dec. 

21, 2010).

32 Staff notes, however, that insofar as an individual entity’s activity should be aggregated with affiliated entities, 

the combined group activity could be more significant. 
17 

transactions that do not count towards an entity’s de minimis calculation. In particular, staff 

sought to account for the Inter-Affiliate Exclusion and cross-border swaps.

33 

(i) Inter-Affiliate Exclusion

As discussed above, a person’s swaps with certain of its affiliates are not considered in 

determining whether the person is a swap dealer. In the absence of a global reference database 

that identifies affiliated entities, staff developed a methodology to identify inter-affiliate 

transactions. For some aspects of the IRS and CDS analysis, a trade with any of the following 

characteristics was marked as an inter-affiliate trade and excluded from staff’s analysis: (1) both 

counterparties had the same LEI; (2) the names of both counterparties referenced the same parent 

company; or (3) the counterparties had previously elected the Inter-Affiliate Clearing Exemption 

in DTCC Data Repository.

34 It should be noted that not every inter-affiliate transaction could be 

identified and excluded using this methodology and, as a result, an entity’s notional amount and

the number of swaps to which it is a party may be over-estimated. 

(ii) Cross-Border Considerations 

As a general matter, pursuant to the Interpretive Guidance and Policy Statement 

Regarding Compliance With Certain Swap Regulations issued by the Commission (“CrossBorder Guidance”),

35 entities that are not U.S. persons (as such term is defined in the CrossBorder Guidance) and that are not guaranteed affiliates and not affiliate conduits of a U.S. person 

count their dealing swaps with: (i) U.S. persons (other than a foreign branch of a U.S. registered 

 

33 Staff also sought to exclude swaps executed pursuant to the IDI Exclusion; however, the SDR data did not 

contain enough information to reliably identify those transactions. 

34 As discussed in further detail below, inter-affiliate trade identifiers were not readily available for FX 

Derivatives, Equity swaps, and Non-Financial Commodity swaps. Analysis of that swap data does not exclude any 

swaps between affiliates.

35 See generally 78 Fed. Reg. 45292.
18 

swap dealer); and (ii) certain non-U.S. person guaranteed affiliates.36 In contrast, non-U.S. 

persons that are guaranteed affiliates or affiliate conduits of a U.S. person generally include all 

their dealing swaps with U.S. and non-U.S. persons in their de minimis count. However, because 

the SDR data does not contain identifiers for non-U.S. branches of U.S. registered swap dealers, 

guaranteed affiliates, or affiliate conduits, these categories of entities could not be identified. 

Instead, for IRS and CDS, staff attempted to identify and exclude all swaps executed 

between two non-U.S. persons. This analysis was not completely accurate because the SDR data 

did not always indicate whether an entity was a non-U.S. person, and certain entities did not have 

valid LEIs that could be used to determine their status as a U.S. person. Further, as noted above, 

there are no SDR data fields indicating an entity’s status as a branch, guaranteed affiliate, or 

affiliate conduit of a U.S. person. Given these limitations, certain swaps of non-U.S. persons 

were not accurately reflected in the analysis, which may overestimate or underestimate the 

number of Potential Swap Dealing Entities. 

5. Notional Value and Alternative Measures of Dealing Activity

Although the total gross notional value of an entity’s dealing activity determines its swap 

dealer registration status, reliable and complete notional data was not available for FX 

Derivatives, Equity swaps, and Non-Financial Commodity swaps during the Review Period. The 

most common reporting issues are listed below. 

(a) In addition to the duplicative reporting described above, for Equity swaps and FX 

Derivatives, staff observed many instances in which a single USI between the same counterparty 

pair was reported multiple times, with different notional amounts reported in each instance. 

 

36 See Appendix A for additional information regarding cross-border considerations.
19

(b) For FX Derivatives, substantial variations in the reporting of USI-specific exchange 

rate information impaired the calculation of notional amounts.

(c) A substantial number of Non-Financial Commodity swaps were reported without the 

price and quantity data necessary to calculate notional amounts; and when reported, these data 

fields were not always consistently or thoroughly completed by reporting parties. For example, 

unit measurements for reported quantities (e.g., barrels of oil, megawatt hours, and bushels of 

corn) were not universally applied by all reporting parties. 

Without additional information, any attempt to calculate notional amounts would have 

resulted in potentially incorrect estimated notional values for FX Derivatives, Equity swaps, and 

Non-Financial Commodity swaps. Accordingly, in the absence of notional information for these 

swaps, staff explored alternate indicators of dealing activity for purposes of analyzing the de 

minimis exception. In this Preliminary Report, staff focused on the following two alternate 

indicators: (1) the number of unique counterparties an entity traded with (“Counterparty 

Count”); and (2) the total number of an entity’s swaps (“Transaction Count”). 

Counterparty Count: As the Commission has previously observed, swap dealers tend to 

have more counterparties than non-dealers37 because swap dealers often actively solicit business 

from potential counterparties and offer a range of products to suit various counterparties’ 

needs.38 Accordingly, staff estimated the Counterparty Counts for Potential Swap Dealing 

Entities as a possible indicator of the relative likelihood that they may be engaged in dealing 

activity. 

 37 75 Fed. Reg. at 80177. 

38 77 Fed. Reg. at 30608.
20

Transaction Count: Similarly, swap dealers tend to enter into a greater number of 

transactions than non-dealers. For example, market making activity is considered swap dealing 

activity,

39 and market makers tend to engage in a higher number of transactions than non-dealing 

entities. Accordingly, staff also estimated the Transaction Counts for Potential Swap Dealing 

Entities. 

Staff acknowledges that these two metrics are not determinative in identifying dealing 

activity;40 however, they are useful for observing potential patterns in the swaps activity of 

market participants, including relative levels of potential dealing activity. The Counterparty and 

Transaction Count information allowed staff to analyze swap activity and generally assess the 

effectiveness of the current de minimis exception as well as potential alternative approaches for 

the exception, which are discussed later in this Preliminary Report. 

Given the above considerations, CFTC staff welcomes comments on the following:

(1) Given the lack of a dealing field in the data, staff invites suggestions on how to best

identify the dealing activity of market participants. Are the general approaches used 

in this Preliminary Report reasonable? If not, why not?

(2) Staff seeks suggestions on techniques to identify transactions in the SDR data that 

may qualify for the IDI Exclusion.

(3) Are Counterparty and Transaction Counts useful metrics for identifying potential 

swap dealing activity? 

(4) In addition to Counterparty and Transaction Counts, are there other metrics that could 

be useful in identifying potential swap dealing activity?

 39 17 C.F.R. § 1.3(ggg)(4)(ii).

40 For example, an entity with a high Transaction Count could be a central treasury unit of a large commercial 

enterprise that employs dynamic hedging strategies. 
21

(5) Are certain metrics for identifying potential swap dealing activity more useful for 

some asset classes than others? If so, please identify and describe those metrics.

(6) Is the methodology used to identify inter-affiliate swaps appropriate?

C. Findings

1. IRS and CDS

As indicated above, notional amount data was available for IRS and CDS. Accordingly, 

for these two asset classes, staff sought to determine the approximate number of entities that may 

be engaged in swap dealing above various notional de minimis thresholds. As an initial matter, 

staff excluded from its analysis all entities whose gross notional amount for IRS and CDS 

combined did not exceed $1 billion during the Review Period, based on the assumption that no 

appreciable dealing activity that would warrant swap dealer registration was likely occurring 

below this threshold. 

(i) Application of Entity Filters

Table 1 applies the Entity Filters described above to remove entities that are not likely 

engaged in swap dealing activity. Columns (iii) and (iv) show the number of entities that were 

excluded as potential dealers at each notional level. Column (v) shows the number of entities 

remaining after applying all Entity Filters. 
22 

Table 1 – Number of Potential Dealing Entities in IRS and CDS

After Excluding Presumed Non-Dealing Entities

Notional Amount of 

IRS and CDS

(USD Billions) 

Greater than

(i)

No. of 

Entities 

above 

Notional 

Amount

(ii)

Collective 

Investment 

Vehicles

(iii)

Cooperatives, GovernmentSponsored Banks, International 

Financial Institutions, Insurance 

Companies, & Non-Bank 

Financing Companies

(iv)

Potential Swap 

Dealing Entities 

After Applying 

Entity Filters

(v)

1 2,045 1,552 131 362

2 1,495 1,126 93 275

3 1,222 917 79 226

4 1,041 778 74 189

5 925 686 70 169

6 830 613 62 155

7 765 563 54 148

8 707 519 50 138

9 655 477 45 133

10 609 440 45 124

12 554 395 38 121

15 491 344 34 113

20 398 271 26 101

50 235 149 11 75

100 153 <90 * 62

Note: The asterisk indicates fewer than five entities. To preserve confidentiality, the exact number was not 

disclosed. The number of collective investment vehicles was also given an approximate value to preserve

confidentiality.

Table 2 summarizes the exclusions resulting from the application of the Entity Filters for 

IRS and CDS combined. 

Table 2 – IRS and CDS Entity Filter Exclusions

Exclusions

Number of 

LEIs

% of Total 

LEIs

% of Total 

Notional

% of Total 

Trades

Less than $1 billion notional41 16,248 87.6% 0.5% 5.1%

Funds and Other Collective Investment Vehicles 1,552 8.4% 26.0% 30.8%

Government-sponsored Banks, International Financial Institutions, 

and Cooperatives 47 0.3% 0.7% 0.5%

Insurance Companies and Non-Bank Financing Companies 84 0.5% 0.3% 0.7%

Invalid LEIs 263 1.4% 9.1% 6.1%

 

41 Entities that entered into less than $1 billion notional combined IRS/CDS activity were not reviewed for the 

Entity Filters or for invalid LEIs.
23 

(ii) Application of Cross-Border Guidance 

Table 3 addresses cross-border considerations, to the extent practicable, by excluding 

swaps between two non-U.S. persons. Specifically, column (v) shows the number of non-U.S. 

persons engaged in potential swap dealing above each gross notional amount after excluding 

transactions between two non-U.S. persons. 

Table 3 – Exclusion of Non-U.S. Person to Non-U.S. Person 

Transactions in IRS and CDS

Notional 

Amount of IRS 

and CDS

(USD Billions)

Greater than

(i)

Potential 

Swap Dealing 

Entities After 

Applying 

Entity 

Filters42

(ii)

U.S. 

Persons

(iii)

Non-U.S. 

Persons

(iv)

Non-U.S. Persons 

After Excluding 

Trades With Other 

Non-U.S. Persons

(v)

Total U.S. and Non-U.S. 

Potential Swap Dealing 

Entities After Exclusion of 

Non-U.S. Person Swaps

(vi)

1 362 202 160 130 332

2 275 143 132 112 255

3 226 111 115 96 207

4 189 92 97 81 173

5 169 85 84 70 155

6 155 74 81 65 139

7 148 70 78 62 132

8 138 64 74 59 123

9 133 61 72 56 117

10 124 57 67 55 112

12 121 57 64 52 109

15 113 51 62 50 101

20 101 43 58 47 90

50 75 31 44 34 65

100+ 62 25 37 28 53

(iii) Aggregating Across Affiliated Entities 

As reflected in Table 4 below, staff aggregated the notional activity of affiliated entities. 

For example, consider an affiliated group comprised of four entities with the following gross 

notional amounts: Entity A with $2 billion; Entity B with $3 billion; Entity C with $7 billion; 

 

42 Column (ii) shows the number of entities remaining after the Entity Filters shown in Table 1 (see column (v) of 

Table 1).
24 

and Entity D with $10 billion. At the current $8 billion de minimis threshold, only Entity D 

would be required to register before aggregation is applied. However, after taking aggregation 

into account, Entity C would also be required to register to reduce the aggregated notional 

activity of the remaining unregistered entities in the affiliated group to below $8 billion. Entities 

C and D would therefore be included in the last column of Table 4 for that level. Staff 

performed this exercise on the Potential Swap Dealing Entities identified in column (vi) of Table 

3 at the notional thresholds shown in the first column of Table 4. 

Table 4 – Aggregation of IRS and CDS Dealing Activity

Gross Notional 

Amount of IRS and 

CDS

(USD Billions)

Greater than

Potential Swap Dealing 

Entities After All 

Exclusions43

Affiliated 

Groups

Potential Swap Dealing 

Entities after Applying 

Aggregation

1 332 232 332

2 255 173 259

3 207 137 212

4 173 115 181

5 155 105 164

6 139 91 147

7 132 85 138

8 123 82 129

9 117 78 124

10 112 74 120

12 109 71 114

15 101 68 107

20 90 63 99

50 65 48 70

100+ 53 41 56

Although the estimates of Potential Swap Dealing Entities in Table 4 are based on a 

series of assumptions as reflected in Tables 1 through 3, staff believes that, given the data 

challenges discussed above, the estimates in Table 4 reflect a reasonable approach for estimating 

a baseline of the number of entities that could potentially be swap dealers at various notional 

 

43 See column (vi) of Table 3. 
25 

thresholds based on combined IRS and CDS notional amounts.44 

2. Equity Swaps

To assess potential dealing activity in the Equity swap market, staff first sought to 

remove those transactions that are not subject to the Commission’s jurisdiction. In particular, 

staff removed transactions in single name Equity swaps and Equity swap baskets. Although 

Equity swap baskets containing more than nine underlying securities are generally within the 

Commission’s jurisdiction, the SDR data did not contain sufficient information to determine the 

number of swaps in each basket. Accordingly, staff excluded from its analysis all transactions 

referencing baskets of Equity instruments.45 Next, staff applied the Entity Filters described

above in Section III.B.3, with some adjustments. The Entity Filters excluded: (1) entities that 

had already been identified in the excluded categories for the IRS and CDS data analysis; (2) 

commodity pools whose operators were registered with the Commission as commodity pool 

operators; (3) entities listed on the SEC’s Investment Company Series and Class Report; and (4) 

entities whose names matched any of a set of keywords that likely indicated the entity was in one 

of the categories to be excluded (e.g., “fund” or “insurance”). Due to certain limitations, staff 

did not manually review the underlying business activities of each entity in the Equity swap 

market, as it did for IRS and CDS, and did not apply the activity-based assumptions described 

above in Section III.B.4. 

Tables 5 and 6 below show the Counterparty and Transaction Counts of Potential Swap 

Dealing Entities that remained after the application of the Entity Filters in the Equity swap 

 

44 Staff notes that the Potential Swap Dealing Entities in Table 4 may have affiliated entities that were excluded in 

this analysis due to the application of the Entity Filters prior to aggregation. Therefore, if these entities had been 

included, the number of entities and aggregate gross notional activity of affiliated groups may have been higher. 

45 Baskets accounted for approximately 6% of the Equity swap data.
26 

market.

46 These tables demonstrate that the vast majority of Potential Swap Dealing Entities in 

the Equity swap market had very low Counterparty and Transaction Counts. As discussed 

above, swap dealers generally tend to have higher Counterparty and Transaction Counts than 

non-dealers. The Counterparty and Transaction Counts of Potential Swap Dealing Entities in the 

Equity swap market appear to indicate that dealing in that asset class may be concentrated among 

a small number of dealers. 

Table 5 – Equity Swaps

Counterparty Counts

Number of 

Counterparties

No. Entities by 

Unique Identifiers

No. of Entities after 

Excluding Invalid 

LEIs and Applying 

Entity Filters

1-5 3,682 905

6-15 186 46

16-25 5 *

26-50 * *

51-75 * *

76-100 * *

101-250 6 6

251-500 6 6

501-1000 * *

Over 1000 * *

Note: Each asterisk indicates fewer than five entities. 

 

46 In the Equity swap market, approximately 76% of all entities were excluded from the universe of Potential 

Swap Dealing Entities – approximately 36% were excluded due to the absence of a valid LEI, and approximately 

40% were excluded due to the application of the Entity Filters. 
27 

Table 6 – Equity Swaps

Transaction Counts

Number of 

Transactions

No. of Entities by 

Unique Identifiers

No. of Entities after 

Excluding Invalid 

LEIs and Applying 

Entity Filters

1-10 2,641 622

11-25 590 159

26-50 282 79

51-100 171 50

101-250 147 35

251-500 30 11

501-1000 11 *

1,001-5,000 13 8

5,001-10,000 5 5

10,001-100,000 * *

Over 100,000 0 0

Note: Each asterisk indicates fewer than five entities. 

Table 7 summarizes the exclusions resulting from the application of the Entity Filters on 

the Equity swap data. 

Table 7 – Equity Swaps Entity Filter Exclusions

Exclusions

Equity Swaps

LEIs % LEI USIs % USI

Funds 1,450 37.2% 40,925 19.9%

Financial Cooperatives 0 0.0% 0 0.0%

International Financial Institutions 9 0.2% 202 0.1%

Non-Financial Cooperatives 0 0.0% 0 0.0%

Insurance Companies 62 1.6% 1,330 0.6%

Non-Bank Financing * 0.0% 105 0.1%

Invalid LEI 1,397 35.9% 32,386 15.7%

Note: The asterisk indicates fewer than five entities. 

3. FX Derivatives 

To assess potential dealing in the FX Derivatives market, staff first sought to exclude FX 

transactions that, while required to be reported by statute, do not count towards an entity’s de 

minimis calculation. In particular, staff removed FX swaps and FX forwards, pursuant to the FX 
28 

Exemption.

47 Staff also removed certain spot transactions that do not count towards an entity’s 

de minimis calculation. As indicated in Table 8 below, FX Derivatives (i.e., those not covered 

by the FX Exemption) only comprised approximately 14% of the FX transactions reported to the 

SDRs during the Review Period.48 

Table 8 – Identification of FX Transactions 

Counted for the De Minimis Threshold

Next, staff applied the same Entity Filters used for Equity swaps. In addition, consistent 

with the Equity swaps analysis, the activity-based assumptions described above in Section 

III.B.4 were not applied. Tables 9 and 10 below show the Counterparty and Transaction Counts 

 

47 See Determination of Foreign Exchange Swaps and Foreign Exchange Forwards Under the Commodity 

Exchange Act, 77 Fed. Reg. 69694, 69705 (Nov. 20, 2012).

48 Although FX swaps and FX forwards are not included in an entity’s de minimis calculation, they are still subject 

to SDR reporting requirements. Further Definition of “Swap,” “Security-Based Swap,” and “Security-Based Swap 

Agreement”; Mixed Swaps; Security-Based Swap Agreement Recordkeeping, 77 Fed Reg. 48208, 48253 (Aug. 13, 

2012); 77 Fed. Reg. at 69705.

49 Approximately 11,000 FX transactions were excluded from this analysis because no product type was identified 

in the SDR data.

50 Currently there is no universal field for reporting “FX swaps,” which are excluded from an entity’s de minimis

calculation. Staff found that the majority of market participants reported the near leg of an FX swap as an FX spot 

or FX forward, and the far leg of the swap as an FX forward. Therefore, FX swaps are not separately delineated in 

this table.

All FX Product Transactions49 86,246,528

Excluded FX Transactions by Product:50

Forward (53,957,796)

Spot (20,308,517)

Total Excluded (74,266,313)

Included Swap Transactions by Product (i.e., “FX Derivatives”): 

Non-deliverable Forwards 7,583,018

Non-deliverable Options 302,373

Options 4,083,444

Total Included 11,968,835

Percent of All FX Products 14%
29 

of the Potential Swap Dealing Entities that remained after the application of the Entity Filters.

51 

These tables demonstrate that the vast majority of Potential Swap Dealing Entities in FX 

Derivatives had very low Counterparty and Transaction Counts. Similar to the Equity swap 

market, it appears that dealing in the FX Derivatives market may be concentrated among a small 

number of entities. 

Table 9 – FX Derivatives 

Counterparty Counts 

Number of 

Counterparties

No. of Entities by 

Unique Identifiers

No. of Entities after 

Excluding Invalid 

LEIs and Applying 

Entity Filters

1-5 25,474 4,977

6-15 1,580 445

16-25 109 37

26-50 20 17

51-75 18 16

76-250 16 15

251-500 5 5

501-1000 12 10

Over 1000 14 14

 

51 In the FX Derivatives market, approximately 80% of all entities were excluded from the universe of Potential 

Swap Dealing Entities – approximately 61% were excluded due to the absence of valid LEIs, and approximately

19% were excluded due to the application of the Entity Filters. Of the 61% of entities that were excluded due to 

invalid LEIs, almost all had unique identifiers of some kind. Accordingly, although it was not possible to 

definitively determine who many of those entities were, the availability of the unique identifiers enabled staff to 

aggregate their Counterparty and Transaction Counts. Staff found that most of the excluded entities engaged in very 

few transactions during the Review Period, and therefore staff assumed that they were not likely engaged in dealing.
30 

Table 10 – FX Derivatives 

Transaction Counts 

Number of 

Transactions

No. of Entities by 

Unique Identifiers

No. of Entities after 

Excluding Invalid 

LEIs and Applying 

Entity Filters

1-10 15,501 2,575

11-25 3,720 879

26-50 2,408 613

51-100 1,880 482

101-250 1,851 449

251-500 787 200

501-1000 496 122

1,001-5,000 462 129

5,001-10,000 63 27

10,001-100,000 58 39

Over 100,000 22 21

Table 11 summarizes the exclusions resulting from the application of the Entity Filters 

on the FX Derivatives data. 

Table 11 – FX Derivatives Entity Filter Exclusions

Exclusions

FX Derivatives

LEIs % LEI USIs % USI

Funds 4,972 18.3% 1,083,264 9.1%

Financial Cooperatives * 0.00% * 0.0%

International Financial Institutions 15 0.1% 4926 0.0%

Non-Financial Cooperatives 0 0.00% 0 0.0%

Insurance Companies 162 0.6% 15,894 0.1%

Non-Bank Financing * 0.00% 62 0.0%

Invalid LEI >16,500 60.8% 1,423,380 11.9%

Note: Each asterisk indicates fewer than five entities. 

4. Non-Financial Commodity Swaps

To assess potential dealing activity in Non-Financial Commodity swaps, staff applied the 

same Entity Filters used for the Equity swaps and FX Derivatives data analysis; the activitybased assumptions described above in Section III.B.4 were also not applied.52 In addition, staff 

 

52 Although commodity trade options are exempted from an entity’s de minimis calculation, it was not possible to 

exclude these transactions from the analysis because there is no SDR data field to identify commodity trade options. 

Accordingly, the estimates in Tables 12 and 13 may overstate potential dealing activity to the extent commodity 
31 

manually identified remaining entities to: (1) confirm that they did not fall under one of the 

Entity Filters; and (2) categorize the entities as either financial or non-financial. This extra step 

was undertaken to facilitate certain analyses specific to Non-Financial Commodity swaps as 

described in Sections IV and V of this Preliminary Report. Tables 12 and 13 below show the 

Counterparty and Transaction Counts of Potential Swap Dealing Entities in Non-Financial 

Commodity swaps.53 Table 12 shows that most of these entities had low Counterparty Counts, 

suggesting that many of these entities may not be dealing. A similar pattern is reflected in Table 

13, which shows that most Potential Swap Dealing Entities executed a small number of NonFinancial Commodity swaps during the Review Period. 

Table 12 – Non-Financial Commodity Swaps 

Counterparty Counts 

Number of 

Counterparties

No. of Entities by 

Unique Identifiers

No. of Entities after 

Excluding Invalid 

LEIs and Applying 

Entity Filters

1-5 5,184 3,361

6-15 226 197

16-25 26 23

26-50 27 24

51-75 7 7

76-100 9 9

101-250 14 14

251-500 6 6

501-1000 * *

Over 1000 0 0

Note: Each asterisk indicates fewer than five entities. 

 

trade options were reported in the SDR data. Staff notes that the Commission has proposed to eliminate the 

requirement to report commodity trade options by end-users. Trade Options, 80 Fed. Reg. 26200 (proposed May 7, 

2015).

53 In the Non-Financial Commodity swap market, approximately 34% of all entities were excluded from the 

universe of Potential Swap Dealing Entities – approximately 21% were excluded due to the absence of a valid LEI, 

and approximately 13% were excluded due to the application of the Entity Filters. 
32 

Table 13 – Non-Financial Commodity Swaps 

Transaction Counts 

Number of 

Transactions

No. of Entities by 

Unique Identifiers

No. of Entities after 

Excluding Invalid 

LEIs and Applying 

Entity Filters

1-10 2,673 1,553

11-25 962 676

26-50 614 452

51-100 446 318

101-250 404 311

251-500 173 145

501-1000 97 76

1,001-5,000 92 77

5,001-10,000 19 17

10,001-100,000 21 18

Over 100,000 * *

Note: Each asterisk indicates fewer than five entities. 

Table 14 summarizes the exclusions resulting from the application of the Entity Filters 

on the Non-Financial Commodity swaps data. 

Table 14 – Non-Financial Commodity Swaps Dealing Filter Exclusions 

Exclusions

Non-Financial Commodity Swaps

LEIs % LEI USIs % USI

Funds 634 11.5% 47,423 3.5%

Financial Cooperatives 0 0.0% 0 0.0%

International Financial Institutions * 0.0% 11 0.0%

Non-Financial Cooperatives 61 1.1% 4015 0.3%

Insurance Companies 29 0.5% 490 0.0%

Non-Bank Financing 0 0.0% 0 0.0%

Invalid LEI 1,132 20.6% 203,787 15.0%

Note: The asterisk indicates fewer than five entities. 

D. Measuring Potential Swap Dealing Activity across Asset Classes

In the absence of gross notional information for all asset classes, Counterparty and 

Transaction Counts were used to compare swap activity, including potential dealing, across asset 

classes. To develop baseline levels at which dealing is more likely, staff compared the number 

of Potential Swap Dealing Entities to the number of registered swap dealers among those entities 

in numerous ranges of Counterparty Counts and Transaction Counts in each asset class. Staff’s 
33

analysis indicated that the 51 to 75 Counterparty Count range is the lowest level at which the 

majority of Potential Swap Dealing Entities in each asset class were registered swap dealers. 

Similarly, the 10,001 to 100,000 Transaction Count range was the lowest level at which the 

majority of Potential Swap Dealing Entities in each asset class were registered. These estimated 

ranges are used in Sections IV and V, in the absence of complete notional data for all asset 

classes, for comparative analysis of potential swap dealing activity across all asset classes. 

Staff welcomes comments on the following aspects of the data, methodology, and 

analysis:

(1) Is it reasonable to assume that entities with less than $1 billion of aggregate notional 

amount in IRS and CDS over a 12-month period are not likely engaged in appreciable 

swap dealing activity?

(2) Is it reasonable to assume that the following types of entities are not likely engaged in 

swap dealing?

a. Investment funds and other collective investment vehicles. 

b. Financial and non-financial cooperatives.

c. Insurance companies (including their subsidiaries).

d. Non-bank financing companies.

(3) Is the methodology used to identify affiliated entities and to aggregate notional swap 

trading activity appropriate?

(4) Are there affiliated entities where each entity has less than $1 billion of aggregate 

notional swap trading activity, but when aggregated across affiliated entities, the total 

gross notional activity would exceed $1 billion?
34

(5) Are there additional filters that should be considered in general and for any particular 

asset class?

(6) Is focusing on the Counterparty and Transaction Count ranges at which the majority 

of Potential Swap Dealing Entities were registered as swap dealers an appropriate 

strategy to identify potentially significant swap dealing activity? Should another 

approach for using Counterparty and/or Transaction Counts be considered?

(7) The analysis for this Preliminary Report did not assess the range of products executed 

by an entity as another alternative indicator of potential dealing activity. Staff invites 

comments on the value of analyzing this metric, potentially in conjunction with other 

metrics.

(8) Is there other data that staff should consider?

IV. Policy Objectives and Considerations Relating to the De Minimis Exception

In adopting the swap dealer definition, the Commissions identified the policy goals 

underlying swap dealer registration and regulation generally to include the reduction of systemic 

risk, counterparty protections, and market efficiency, orderliness, and transparency.54 The 

Commissions explained that “implementing the de minimis exception requires a careful 

balancing that considers the regulatory interests that could be undermined by an unduly broad 

exception as well as those regulatory interests that may be promoted by an appropriately limited 

exception.”55 A narrow de minimis exception would likely mean that a greater number of 

counterparties would be required to register as swap dealers and become subject to the regulatory 

framework. However, a de minimis exception that is too limited could, for example, discourage 

 54 77 Fed. Reg. at 30628-29, 30707. 

55 Id. at 30628. See also 75 Fed. Reg. at 80179 (The de minimis exception “should apply only when an entity’s 

dealing activity is so minimal that applying dealer regulations to the entity would not be warranted.”).
35

market participants in Non-Financial Commodity swaps or small and mid-sized banks from 

engaging in swap dealing activity in order to avoid the burdens associated with swap dealer 

regulation. 

A. General Policy Considerations

1. Policies for Regulating Swap Dealers 

(i) Reduction in Systemic Risk

The Dodd-Frank Act was enacted in the wake of the financial crisis of 2008, in 

significant part, to reduce systemic risk, including the risk to the broader U.S. financial system 

created by interconnections in the swap market.56 Pursuant to the Dodd-Frank Act, the 

Commission has proposed or adopted regulations designed to mitigate the potential systemic risk 

inherent in the previously unregulated swap market, including the registration and regulation of 

swap dealers. 

(ii) Counterparty Protections

Providing regulatory protections for swap counterparties who may be less experienced or 

knowledgeable about the swap products offered by swap dealers (particularly end-users who use 

swaps for hedging or investment purposes) is a fundamental policy goal advanced by the 

regulation of swap dealers. The Commissions recognized that the narrower or smaller the de 

minimis exception, the greater the number of counterparties that would benefit from those 

regulatory protections.57 

 56 Dodd-Frank Act, Preamble (stating that the purpose of the Dodd-Frank Act was “[t]o promote the financial 

stability of the United States by improving accountability and transparency in the financial system, to end ‘too big to 

fail’, to protect the American taxpayer by ending bailouts, to protect consumers from abusive financial services 

practices, and for other purposes.”).

57 77 Fed. Reg. at 30628 (“On the one hand, a de minimis exception, by its nature, will eliminate key counterparty 

protections provided by Title VII for particular users of swaps and security-based swaps.”).
36

(iii) Swap Market Transparency, Orderliness, and Efficiency

Another goal of swap dealer regulation is swap market transparency, orderliness, and 

efficiency.58 These market benefits are achieved through regulations requiring, for example,

swap dealers to keep detailed daily trading records, report trade information, and engage in 

portfolio reconciliation and compression exercises.59

2. Policies Advanced by a De Minimis Exception

The Commissions also recognized that, consistent with Congressional intent, “an 

appropriately calibrated de minimis exception has the potential to advance other interests.”60 The 

Commissions explained that these interests include providing regulatory certainty, allowing 

limited swap dealing in connection with other client services, encouraging new participants to 

enter the market, and providing greater regulatory efficiency. The policy objectives underlying 

the de minimis exception are designed to encourage participation and competition by allowing 

market participants to engage in a de minimis amount of dealing without incurring the costs of 

registration and regulation. 

 58 Id. at 30629 (“The statutory requirements that apply to swap dealers and security-based swap dealers . . . 

include requirements . . . aimed at helping to promote effective operation and transparency of the swap and securitybased swap markets.”); see also id. at 30703 (“Those who engage in swaps with entities that elude swap dealer or 

major swap participant status and the attendant regulations could be exposed to increased counterparty risk; 

customer protection and market orderliness benefits that the regulations are intended to provide could be muted or 

sacrificed, resulting in increased costs through reduced market integrity and efficiency . . . .”).

59 Relevant statutory and regulatory provisions aimed at providing these market benefits include, but are not 

limited to, the following: daily trading records requirements (CEA Section 4s(g); 17 C.F.R. §§ 23.201-23.203); 

swap data reporting and recordkeeping requirements (CEA Section 4s(f); 17 C.F.R. §§ 23.204-23.205, 17 C.F.R. 

Parts 43 and 45); requirements related to disclosure of information to regulators (CEA Section 4s(j)(3); 17 C.F.R. § 

23.606); and requirements related to post-trade processing and valuation of swaps (CEA Section 4s(i); 17 C.F.R. §§ 

23.500-23.506).

60 77 Fed. Reg. at 30628.
37

(i) Regulatory Certainty

A de minimis exception based on an objective test with a limited degree of complexity 

enables entities to engage in a small amount of swap dealing with limited concerns about 

whether their activities would require registration.

61 The existing single gross notional de 

minimis threshold provides regulatory certainty by establishing a single threshold test for all 

swap dealing in the aggregate. Conversely, the more variables included in the de minimis

calculation, the more complex the determination of whether a market participant must register,

potentially resulting in less certainty for market participants. 

(ii) Allowing Limited Ancillary Dealing

A de minimis exception may allow market participants to accommodate existing clients 

that have a need for swaps along with other services on a limited basis.

62 This interest enables 

end-users to continue transacting within existing business relationships. 

(iii) Encouraging New Participants

A de minimis exception also may promote competition by allowing an entity to initiate 

some swap dealing activities without immediately incurring the regulatory costs associated with 

swap dealer registration and regulation.

63 Without a de minimis exception, regulation of swap 

dealers could become a barrier to entry that could stifle competition. An appropriately calibrated 

de minimis exception could lower the barrier to entry in the swap dealer space by allowing 

smaller participants to gradually expand their business until the scope and scale of their activity 

warrants regulation and the costs involved with compliance. 

 61 Id. at 30629, 30708. 

62 Id.

63 Id.
38

(iv) Regulatory Efficiency

Finally, the exception may also increase regulatory efficiency by enabling the 

Commission to focus its finite resources on entities whose swap dealing activity is sufficient in 

size and scope to warrant oversight.64 

Given these considerations, CFTC staff welcomes comments on the following:

(1) Are there additional policy considerations underlying swap dealer regulation or the de 

minimis exception that the Commission should consider?

(2) Are any of the policy considerations discussed above more or less important than the 

others? 

(3) Have there been any structural changes to the swap market such that the policy 

considerations have evolved? 

(4) Are entities curtailing their swap dealing activity to avoid swap dealer registration, 

and if so, what impact does that have on the swap market? 

(5) What are the specific costs of swap dealer registration?

(6) Do these costs vary depending on the size and nature of an entity’s swap dealing 

activities?

(7) Are there particular regulatory requirements that are more burdensome than others? 

B. Policy Considerations for Certain Sectors of the Swap Markets

Staff assessed the implications of any changes in the de minimis threshold for NonFinancial Commodity swap market participants and small and mid-sized banking enterprises; 

comments received during the swap dealer definition rulemaking process and staff observations 

 64 Id. at 30628-29.
39

from the data reviewed indicate that these sectors may have characteristics that make them more 

sensitive to variations in the de minimis exception.

1. Non-Financial Commodity Swap Dealing

During the rulemaking process to define the term “swap dealer,” commenters stated that,

while swaps entered into by non-financial entities may be viewed as accommodating a 

counterparty’s demand for a swap, and thus considered dealing activity, the swaps are driven by, 

and incidental to, other related transactions with the counterparty.65 For example, these 

commenters noted that in physical transactions with commodity suppliers and purchasers, the

counterparties often seek related financial risk management products.66 Accordingly, the 

commenters requested that this swap activity be viewed as incidental to an entity’s non-swap

business.67 

Ultimately, it was determined that a per se exclusion of all swaps entered into in 

connection with a physical commodity business would be inappropriate given that “in some 

circumstances a person might enter into swaps that are connected to a physical commodity 

business but also serve market functions characteristic of the functions served by swap 

dealers.”68 Specifically, the preamble to the swap dealer definition states that focusing on the 

dealing activity of the market participant “ensure[s] that all participants in the swap markets are 

 65 See generally Joint letter from Shell Trading (US) Company and Shell Energy North America (US), L.P., dated 

Feb. 22, 2011; Joint letter from Natural Gas Supply Association and National Corn Growers Association, dated Nov. 

16, 2010; Letter from Gavilon Group, LLC, dated Feb. 21, 2011 (“Gavilon Letter”); Presentation from Working 

Group of Commercial Energy Firms (“WGCEF”), dated Nov. 2, 2011; Letter from WGCEF, dated June 3, 2011; 

Letter from Edison Electric Institute, dated Sep. 20, 2010; Presentation from BG Group, dated June 22, 2011; Letter 

from Vitol Inc., dated Feb. 22, 2011; and Letter from EDF Trading North America, LLC, dated Feb. 22, 2011.

66 Id.

67 Id.

68 77 Fed. Reg. at 30611.
40 

regulated in a fair and consistent manner, regardless of whether their underlying business is 

primarily physical or financial in nature.”69 

Staff analyzed the Non-Financial Commodity swaps activity of financial and nonfinancial entities to assess possible differences in swaps activity; both registered and unregistered 

entities were compared. To perform this analysis, each Potential Swap Dealing Entity identified 

in Tables 12 and 13 above was categorized as “financial” or “non-financial” based on the 

apparent nature of its business.70 Tables 15 and 16 below compare the Counterparty and 

Transaction Counts of registered and unregistered financial and non-financial entities.

71

Table 15 – Non-Financial Commodity Swaps 

Analysis of Counterparty Counts 

Counterparty Count Unregistered Entities Registered Swap Dealers

Financial Non-Financial Financial Non-Financial

1-5 174 3,187 0 0

6-15 18 179 0 0

16-25 * 18 * 0

26-50 * 17 * 0

51-75 * * * 0

76-1,000 0 7 21 *

Over 1,000 0 0 0 0

Note: Each asterisk indicates fewer than five entities. 

 

69 Id.

70 An entity was deemed to be “financial” if it was a bank, bank affiliate, bank subsidiary, futures commission 

merchant, foreign exchange broker, or broker-dealer. An entity was deemed to be “non-financial” if it did not fall 

under any of those categories. 

71 An entity was excluded from the registered swap dealer columns and included in the unregistered columns if it 

entered into only a small amount of Non-Financial Commodity swaps and appeared to be registered as a swap dealer 

because of its volume of swap activity in types of swaps other than Non-Financial Commodity swaps. 
41

Table 16 – Non-Financial Commodity Swaps 

Analysis of Transaction Counts

Transaction Count Unregistered Entities Registered Swap Dealers

Financial Non-Financial Financial Non-Financial

1-10 74 1,479 0 0

11-25 39 637 0 0

26-50 24 428 0 0

51-100 11 307 0 0

101-250 19 292 0 0

251-1,000 18 198 5 0

1,001-5,000 10 57 10 0

5,001-10,000 * 7 7 *

Over 10,000 * 5 10 *

Note: Each asterisk indicates fewer than five entities. 

Tables 15 and 16 indicate that the majority of entities with Counterparty and Transaction 

Counts above 50 and 10,000, respectively, in the Non-Financial Commodity swaps market were 

financial entities. Most of these financial entities were registered swap dealers. With respect to 

the Non-Financial Commodity swap activity of non-financial entities, a large majority of such

entities had relatively low Counterparty and Transaction Counts, potentially indicating that many 

of these entities may be end-users.

72 However, at least some non-financial entities had

Counterparty and Transaction Counts that were comparable to financial entities and may be 

indicative of dealing. For example, Table 15 shows that more than seven non-financial entities 

had greater than 50 counterparties during the Review Period, and Table 16 shows that more than 

five non-financial entities had Transaction Counts over 10,000.73 In summary, the data indicates 

that, while financial entities that transact in Non-Financial Commodity swaps were more likely 

to have Counterparty and Transaction Counts that may be indicative of dealing, and were more 

 72 More than 90% of non-financial entities had a Counterparty Count of five or less, and more than 80% of nonfinancial entities had a Transaction Count of 100 or less. 

73 A minority of the non-financial entities with Counterparty and Transaction Counts above 50 and 10,000, 

respectively, were registered swap dealers.
42

likely to be registered dealers, there were some non-financial entities that had Counterparty and 

Transaction Counts that may be indicative of dealing, with a subset of that group having 

registered with the Commission as swap dealers. 

The SDR data also indicates that non-financial entities in the Non-Financial Commodity 

swap market represented approximately 65% of the most active participants in that market

during the Review Period, as measured by number of transactions. Staff considered all entities 

with more than 1,000 swaps during the Review Period to be the most active participants in the 

Non-Financial Commodity swap market. This data shows that non-financial entities play a 

significant part in the Non-Financial Commodity swap market and, accordingly, a decision to 

exclude such firms from swap dealer registration may require further analysis to assess whether 

such an exclusion could result in a greater than de minimis amount of unregistered dealing 

activity.

Given these considerations, CFTC staff welcomes comments on the following:

(1) What has been the impact of the current de minimis threshold on the Non-Financial 

Commodity swap market, including, but not limited to, the ability of end-users to 

hedge their risk? Staff requests quantitative analysis of the impact, including various 

measures of transaction costs and liquidity.

(2) Have participants in the Non-Financial Commodity swap market limited their swap 

dealing activity to remain below the de minimis threshold? 

(3) Does the dealing activity of financial entities in the Non-Financial Commodity swap 

market differ from the dealing activity of non-financial entities? 
43

2. Small to Mid-Sized Banking Enterprises

Commenters on the proposed swap dealer definition stated that the limited nature of 

small and mid-sized banks’ swaps activity supports a reduced regulatory burden for those 

entities. 74 In analyzing the Review Period data, staff observed that there was a wide range in the 

size of banks that routinely engaged in IRS and CDS activity. The commenters noted that small 

and mid-sized banks were primarily swap dealers in the IRS market because of their focus on 

lending activities.75 This section considers the de minimis exception in the context of small and 

mid-sized banking entities.

Banking enterprises76 are often differentiated in regulatory contexts based on total 

assets.

77 Table 17 illustrates that during the Review Period, the volume of potential swap 

dealing activity, measured by average Counterparty Count, Transaction Count, and notional 

amount, was considerably higher for banking enterprises with total assets exceeding $750 billion. 

Furthermore, approximately 86% of banking enterprises with at least $750 billion in assets that 

 74 See generally Letter from Securities Industry and Financial Markets Association, dated Nov. 10, 2010 

(“SIFMA Letter”); Letter from the Mid-Size Bank Coalition of America, dated Feb. 15, 2011; Letter from Capital 

One Financial Corporation, dated Feb. 22, 2011 (“Capital One Letter”); Notes from staff meeting with Regions 

Bank, M&T Bank, and Fifth Third Bank, Aug. 8, 2011 (“Regions/M&T/Fifth Third Meeting Notes”); Notes from 

staff conference call with community and regional banks, Oct. 4, 2011 (“Community and Regional Bank Call 

Notes”); and Notes from staff meeting with Capital One, N.A., B&F Capital Markets, and Branch Banking & Trust 

Co., Feb. 4, 2011 (“Capital One/B&F/BB&T Meeting Notes”).

75 See Regions/M&T/Fifth Third Meeting Notes; Community and Regional Bank Call Notes; and SIFMA Letter.

76 As used in this Preliminary Report, the term “banking enterprises” refers to affiliated groups that contain at least 

one depository institution, parents of depository institutions, and bank holding companies for purpose of Section 8 

of the International Banking Act of 1978. The banking enterprises were identified from the Potential Swap Dealing 

Entities identified in Table 4 using Global Industry Classification Standard codes found in Bloomberg Finance, L.P. 

data. If a bank was not a member of a banking enterprise, its swaps activity was assessed individually.

77 See, e.g., Dodd-Frank Act; Bank Holding Company Act, Pub. L. 84-511, 70 Stat. 133 (1956). 
44 

entered into IRS or CDS transactions during the Review Period had at least one registered swap 

dealer in the corporate family.78

Table 17 – Potential IRS and CDS Dealing Activity of Banking Enterprises 

by Total Asset Size79

Total 

Global 

Assets

(USD 

Billions)

Banking 

Enterprises 

Entering 

into IRS or 

CDS

Banking 

Enterprises 

with 

Registered 

SDs

Counterparty 

Count

Transaction 

Count

Gross Notional Amount (USD Billions)

IRS CDS IRS and CDS

Mean Max Mean Max Mean Max Mean Max Mean Max

0-25 8 0 31 92 149 289 4 7 0.0 0.0 4 7 

25-50 10 0 53 166 178 402 2 4 0.0 0.0 2 4 

50-100 8 * 112 345 314 819 8 18 0.1 0.6 8 19

100-200 16 * 55 449 266 1,016 16 72 0.5 4.8 17 75

200-300 10 0 11 20 92 557 9 42 0.7 6.0 9 48

300-500 13 6 155 1,192 4,053 35,565 543 3,998 6.3 57.8 550 4,056

500-750 12 11 249 596 2,196 4,432 264 646 1.7 4.4 265 649

750-1,000 9 6 1,738 5,726 31,146 142,192 3,275 15,456 249.6 1,483.2 3,524 16,939

1,000+ 19 18 2,248 7,729 48,078 225,808 4,115 18,148 444.2 3,079.9 4,559 21,170

Note: Each asterisk indicates fewer than five entities. 

Table 17 also indicates that for small and mid-sized banking enterprises, the volume of a 

banking enterprise’s swap activities is not directly correlated to its asset size. For example, 

banking enterprises with total assets ranging from $300 billion to $500 billion had an average 

Transaction Count of 4,053 in IRS and CDS during the Review Period. However, one bank 

executed over 35,000 swap transactions during the Review Period, more than eight times the 

average. Banking enterprises with total assets ranging from $50 billion to $100 billion had an 

average Counterparty Count of 112 during the Review Period, whereas banking enterprises with 

 

78 While many of the banking entities included in the data set had gross notional amounts exceeding $8 billion 

during the Review Period, to the extent they enter into dealing swaps in connection with loans provided to the swap 

counterparty, such swaps would not be counted toward the banking entity’s gross notional amount because of the 

IDI Exclusion. Accordingly, such entities may remain under the current de minimis exception threshold.

79 If multiple subsidiaries of a banking enterprise engaged in IRS and CDS activity, their potential swap dealing 

metrics (Counterparty Count, Transaction Count, and notional amounts) were aggregated. 
45

total assets ranging from $200 billion to $300 billion had an average Counterparty Count of only 

11. This data suggests that a blanket exclusion for certain banking entities based on asset size

could exclude banks that engage in significant levels of dealing activity.

Table 18 illustrates that the majority of the IRS and CDS activity within the banking 

sector, as measured by notional amount, appears to be concentrated in large banking enterprises. 

Specifically, it shows that banking enterprises with over $750 billion in total assets accounted for 

approximately 91% of the total IRS and CDS notional activity reported for banking enterprises 

during the Review Period.80 Further, banking enterprises with over $300 billion in total assets

accounted for approximately 99% of the total IRS and CDS notional activity reported for 

banking enterprises. 

Table 18 – Concentration of Potential IRS and CDS Dealing Activity

of Banking Enterprises by Total Asset Size

Total Bank 

Global Assets

(USD Billions)

Banking 

Enterprises 

within the 

Asset Range

Banking 

Enterprises with 

Registered SDs

Gross Notional Amount 

of IRS and CDS

(USD Billions)

Percentage of IRS and 

CDS Bank Activity During 

the Review Period

0-25 8 0 30 0.0%

25-50 10 0 24 0.0%

50-100 8 * 62 0.0%

100-200 16 * 271 0.2%

200-300 10 0 93 0.1%

300-500 13 6 7,144 5.5%

500-750 12 11 3,184 2.5%

750-1,000 9 6 31,721 24.6%

1,000+ 19 18 86,620 67.1%

Total 105 46 129,149 100.0%

Note: Each asterisk indicates fewer than five entities. 

 80 Total assets may be reported differently from bank to bank based on differences in global accounting standards. 

For example, according to the International Swaps and Derivatives Association (“ISDA”), U.S. Generally Accepted 

Accounting Principles (“U.S. GAAP”) allow derivatives to be reported on a net basis, while International Financial 

Reporting Standards (“IFRS”) requires reporting on a gross basis. See “Netting and Offsetting: Reporting 

derivatives under U.S. GAAP and under IFRS,” ISDA (May 23, 2012), available at: 

https://www2.isda.org/attachment/NDQxOQ==/Offsetting%20under%20US%20GAAP%20and%20IFRS%20-

%20May%202012.pdf.
46

Regulation 1.3(ggg)(4)(ii)(B) directs staff to address the impact of certain exclusions 

from the de minimis exception calculation and potential alternatives to these exclusions, 

including the IDI Exclusion. Some commenters stated that the IDI Exclusion is too narrow and 

does not accurately reflect the nature of the swaps entered into by IDIs in connection with 

loans.81 Although many of the comments centered on requests for a broad interpretation of the 

IDI Exclusion, the Commission noted in the swap dealer definition final rule that it was 

constrained by the specific statutory limitations of the exclusion within the swap dealer 

definition.82 

Given these previously stated constraints, staff explored whether changes could come in 

the form of relief for a particular class of market participants or a particular level of swap dealing 

activity. Despite the limited scope of swap activities in which small and mid-sized banking 

enterprises appear to be engaged, Tables 17 and 18 indicate that some of them nonetheless have

high Counterparty and Transaction Counts. Accordingly, excluding small and mid-sized 

banking enterprises from regulation based solely on asset size might be inconsistent with the 

Commission’s interest in promoting counterparty protections and swap market transparency,

orderliness, and efficiency.

Given these considerations, CFTC staff welcomes comments on the following:

(1) What has been the impact of the current de minimis threshold on the swap activity of 

small and mid-sized banking enterprises? 

(2) Have small and mid-sized banking enterprises limited swap dealing activity to remain 

below the de minimis threshold? 

 81 See Capital One Letter; Regions/M&T/Fifth Third Meeting Notes; and Capital One/B&F/BB&T Meeting 

Notes.

82 77 Fed. Reg. at 30621-22.
47

(3) Would an expansion of the IDI Exclusion address small to mid-sized banking 

enterprises’ concerns? If so, what sort of expansion would be appropriate given the 

relevant statutory constraints and competing policy goals? 

V. De Minimis Exception Alternatives

This Preliminary Report draws on the analysis previously discussed to consider, among 

other things, “whether the de minimis threshold should be increased or decreased.”83 The 

available data was analyzed for indications of the impact of changing the threshold in light of the 

policy considerations underlying swap dealer regulation and the de minimis exception. 

Further, this Preliminary Report also considers whether “alternative approaches [to the 

single gross notional de minimis exception] would more effectively promote the regulatory goals 

that may be associated with a de minimis exception.”84 Specifically, based on alternative 

approaches considered during the swap dealer definition rulemaking process, comments from 

market participants, and staff’s observations from the data analysis, the following alternatives are 

discussed: (1) a notional de minimis threshold specific to each asset class; (2) a multi-factor 

approach that would potentially include Counterparty Count and/or Transaction Count metrics in 

the de minimis exception, in addition to a gross notional dealing threshold; (3) a multi-tiered 

approach where the regulatory requirements associated with swap dealer registration are 

commensurate with an entity’s level of dealing activity; and (4) the exclusion of swaps that are 

traded on a registered or exempted swap execution facility (“SEF”) or designated contract 

market (“DCM”), and/or cleared from an entity’s de minimis calculation.

 83 17 C.F.R. § 1.3(ggg)(4)(ii)(B).

84 77 Fed. Reg. at 30635.
48 

A. Higher or Lower Gross Notional De Minimis Threshold

In light of the scheduled decrease of the de minimis notional threshold to $3 billion at the 

end of the phase-in period, staff analyzed the data to assess the impact of a gross notional de 

minimis threshold that is higher or lower than the current $8 billion threshold. This section 

focuses on IRS and CDS because notional data was not available for the other asset classes. 

Therefore, the discussion is only an illustration to help inform the consideration of any potential 

changes to the notional threshold. Additional information for the other asset classes would be 

necessary for a comprehensive analysis. 

Building on Table 4, Table 19 shows the estimated amount of IRS and CDS notional 

activity, transactions, and counterparties that would be covered by regulation depending on the 

notional level used for the registration threshold and assuming all Potential Swap Dealing 

Entities were registered at those thresholds. The $3 and $8 billion notional levels are shown 

because they are used in the current de minimis exception. The $1 billion, $15 billion, and 

$100+ billion levels are shown to provide a sense of the possible change in coverage as the 

notional threshold moves significantly higher or lower. 

Table 19 – IRS and CDS Potential Dealing Activity Covered by Notional Amount 

Gross 

Notional 

Amount of 

IRS/CDS

(USD 

Billions) 

Greater 

than

(i)

Potential 

Swap 

Dealing 

Entities

(ii)

Total Notional 

Amount

(USD Billions) Transactions

Unique 

Counterparties

Total

Amount

(iii)

Change 

from $8 

Billion 

Level

 (iv)

Total 

Number

(v)

Change 

from $8 

Billion 

Level

(vi) 

Total 

Number

(vii)

Change 

from $8 

Billion 

Level

(viii)

1 332 132,737 597 1,325,106 21,992 27,894 986

3 212 132,519 379 1,318,351 15,237 27,429 521

8 129 132,140 N/A 1,303,114 N/A 26,908 N/A

15 107 131,945 -195 1,298,250 -4,864 25,849 -1,059

100+ 56 130,223 -1,917 1,274,194 -28,920 24,089 -2,819
49

Columns (iii) and (v) of Table 19 estimate the total notional amount and the total number 

of swaps that would be covered at the thresholds listed in Column (i) if all Potential Swap 

Dealing Entities were required to register. Column (vii) similarly shows the estimated number of 

unique counterparties that would be covered if all Potential Swap Dealing Entities at each level 

were required to register. Columns (iv), (vi), and (viii) show the difference in each metric that 

might be subject to swap dealer regulation as compared to the current $8 billion threshold.

Table 19 shows that up to an incremental 83 additional Potential Swap Dealing Entities 

in IRS and CDS might be subject to registration if the de minimis threshold falls to $3 billion. 

Up to an estimated $379 billion in notional activity (approximately less than a 1% increase of the 

total during the Review Period), 15,237 swaps (approximately a 1% increase), and 521 unique 

counterparties (approximately a 2% increase) might be covered by swap dealer regulations at the 

$3 billion level. However, it is likely that the incremental changes would be smaller than the 

amounts estimated, given that hedging and proprietary trading activity could not be excluded 

from the gross notional amounts of Potential Swap Dealing Entities. 

Table 19 appears to indicate that only a substantial increase or decrease in the de minimis

threshold would have an appreciable impact on regulatory coverage as measured by notional 

amount, transactions, or unique counterparties. As noted above, a decrease to a $3 billion de 

minimis threshold would only result in one to two percent more activity, as measured by the 

different metrics, being covered by swap dealer regulation. Similarly, at the $15 billion level, 

approximately $195 billion less notional activity, 4,864 fewer swaps, and 1,059 fewer unique 

counterparties would be covered by swap dealer regulation, representing a decrease in coverage 

of less than 1% for notional activity and swap transactions and less than 4% for unique 

counterparties. 
50

Some policy objectives may be furthered by a more limited de minimis exception, 

including reducing systemic risk, providing counterparty protections, and enhancing swap 

market transparency, orderliness, and efficiency. On the other hand, some policy objectives may 

be advanced by a broader de minimis exception, including, encouraging new participants, 

allowing limited ancillary dealing, providing greater regulatory certainty, and providing for 

greater regulatory efficiency. Table 19 provides estimates for the Commission and the public 

that should be informative for the assessment of the potential impact that changes in the 

threshold may have on these policy objectives. Since this analysis measures the impact of a 

modified notional threshold for the IRS and CDS asset classes only, it has limited value for 

setting a more effective single de minimis threshold for the entire swap market. 

Given these considerations, CFTC staff welcomes comments on the following:

(1) What would be the impact of lowering the de minimis threshold to $3 billion or 

raising it above $8 billion on each of the Commission’s policy objectives?

(2) If the de minimis threshold is lowered to $3 billion or raised above $8 billion, would 

there be a disparate impact on different asset classes or types of participants in those 

asset classes?

(3) If the de minimis threshold is lowered to $3 billion or raised above $8 billion, what 

would be the effect on market participants’ behavior? 

(4) Has the analysis and subsequent discussion of the potential impact of a change in the 

notional threshold focused on the appropriate metrics or are there other metrics that 

should be considered? 

(5) Are there any unique costs or benefits associated with the de minimis threshold being 

reduced to $3 billion or being raised above $8 billion?
51

B. Alternative Approaches to the De Minimis Exception

In addition to a single gross notional threshold approach to the de minimis exception, this 

Preliminary Report also considers the data in light of the following alternatives: (1) a notional de 

minimis threshold specific to each asset class; (2) a multi-factor approach; (3) a multi-tiered 

regulatory approach; and (4) the exclusion of swaps executed on a SEF or DCM and/or cleared

swaps from an entity’s de minimis calculation. 

1. Different De Minimis Notional Thresholds by Asset Class Alternative

Staff examined the extent to which swaps executed during the Review Period involved at 

least one swap dealer. These levels would indicate the extent to which swap activity for each 

asset class was subject to swap dealer regulation at the current de minimis exception threshold. 

The percentage of swaps with at least one registered swap dealer as one of the counterparties was 

greater than 95% for IRS and CDS and approximately 90% and 93% for FX Derivatives and 

Equity swaps, respectively. Non-Financial Commodity swaps were noticeably lower at 78%.

Staff notes, however, that this data reflects the amount of swaps that were subject to swap 

dealer regulation and does not identify the amount of swap dealing transactions that were subject 

to regulation. Table 20 measures the percentage of Potential Swap Dealing Entities with

relatively high Counterparty and Transaction Counts that were registered as swap dealers. 
52 

Table 20 – Percentage of Potential Swap Dealing Entities that were Registered

IRS CDS FX Equity

Non-Financial 

Commodity

Percent Registered 

With Greater Than 

50 Counterparties

75%85 100% 97% 100% 74%

Percent Registered 

With Greater Than 

10,000 Transactions

89% 100% 73% 100% 68%

Table 20 indicates that Potential Swap Dealing Entities with high Counterparty and 

Transaction Counts in the Non-Financial Commodity swap asset class had comparatively lower 

registration rates for both measures. The discussion below examines specific characteristics of 

this asset class that may explain this lower regulatory coverage.

 The commenters on the proposed swap dealer definition stated that some asset classes 

may have higher average notional amounts per swap than others.86 Consequently, a market 

participant that executes a small number of dealing transactions with only a few counterparties in 

an asset class for which the notional size of each transaction is comparatively large could exceed 

the de minimis threshold with relatively few transactions and be required to register. Conversely, 

a market participant that executes a large number of dealing transactions with many 

counterparties in an asset class for which the notional size per swap is comparatively small could 

be more likely to stay under the de minimis threshold and not be required to register. 

 

85 Staff reviewed the unregistered entities with over 50 counterparties in the IRS asset class and found that a large 

majority were IDIs that may not be required to register because of the IDI Exclusion. This data point exceeds 90% 

if these entities are excluded.

86 The Commission received comment letters suggesting that the de minimis notional amount threshold should 

vary by asset class in proportion to the notional size of each asset class. See Letter from ISDA, dated Feb. 22, 2011 

(“In certain markets (e.g., foreign exchange) it would be relatively easy for the activities of a small trader that enters 

into few Covered Swaps to exceed a $100m notional amount (or $25m for Covered Swaps with special entities).”); 

and Gavilon Letter.
53 

Another possible explanation for the lower regulatory coverage is that entities in the NonFinancial Commodity swap asset class may be more likely to be engaged in hedging or 

proprietary trading activity with other non-dealers than entities in other asset classes. 

When the Commission adopted Regulation 1.3(ggg), it stated that establishing multiple 

thresholds by asset class would increase the costs to market participants of determining if they 

fell within the de minimis exception by requiring participants to consider multiple variables, 

thereby decreasing regulatory certainty.

87 Staff also notes that a complex de minimis calculation 

could decrease regulatory efficiency by increasing the amount of time and resources needed at 

the CFTC to monitor and enforce the exception. 

Given these considerations, CFTC staff welcomes comments on the following: 

(1) Is it correct to conclude that an asset class that has a substantially lower average 

notional swap size could result in more entities staying under the $8 billion de 

minimis level? 

(2) If the average notional size of a swap asset class is materially smaller than the 

average notional size of other types of swaps, should the Commission establish a 

lower notional de minimis threshold for that asset class? 

(3) What characteristics of asset classes should the Commission consider in determining 

whether establishing different notional thresholds for different asset classes may be 

appropriate? 

(4) Are there any unique costs or benefits associated with this alternative to the de 

minimis exception? 

 

87 77 Fed. Reg. at 30708.
54

2. Multi-Factor De Minimis Threshold Alternative

Insofar as Counterparty and Transaction Counts may be indicators of dealing activity, 

staff also considered the establishment of a de minimis exception based upon some combination 

of (1) gross notional swap dealing activity, (2) Counterparty Count, and/or (3) Transaction 

Count. For example, a multi-factor de minimis exception could potentially distinguish entities 

below a gross notional swap dealing threshold that nonetheless have high Counterparty and/or 

Transaction Counts, and therefore are more likely to be engaging in a level of swap dealing 

activity that is not de minimis. 

When the swap dealer definition was first proposed, the Commissions stated that an 

entity with a large number of dealing counterparties or a large number of dealing transactions 

should be required to register “to help achieve Title VII’s orderly market goals.” 88 Under the 

proposal, the de minimis exception covered only entities that entered into 20 or fewer dealing 

transactions and had 15 or fewer counterparties.89 Ultimately, these other metrics were not 

included in the de minimis exception. In reaching this conclusion, the Commissions considered 

concerns expressed by commenters in reaction to the proposed levels that “a standard based on 

the number of swaps . . . or counterparties can produce arbitrary results by giving 

disproportionate weight to a series of smaller transactions or counterparties.”90 

 88 75 Fed. Reg. at 80180. 

89 Id.

90 77 Fed. Reg. at 30630. See, e.g., Letter from Coalition of Physical Energy Companies, dated Feb. 22, 2011 (“It 

is possible that a person may enter into multiple swaps and have multiple counterparties but still engage in activities 

that do not ‘amount to a hill of beans’ in the market. If the gross notional value of the total swaps position is 

insignificant, then the Regular Business is de minimis. If the gross notional value of the total swaps position is 

above an insignificant amount, it is not de minimis. Accordingly, COPE proposes to delete the number of 

counterparties and number or swaps criteria and measure a de minimis level by gross notional value alone.”).
55 

As discussed in Section III, there may be meaningful distinctions in levels of activity, as 

measured by Counterparty Counts, among the asset classes. For example, the majority of 

Potential Swap Dealing Entities with a Counterparty Count above 50 were registered as swap 

dealers, ranging from approximately 74% in Non-Financial Commodity swaps to 100% in CDS 

and Equity swaps. Two possible uses of Counterparty Counts as part of the de minimis

exception are outlined below. 

One approach could be to use a Counterparty Count threshold as an alternative to a gross 

notional threshold. In this approach, an entity would be required to register if it exceeds either

(i) a gross notional threshold, or (ii) a dealing counterparty threshold. This approach could be 

particularly useful with a relatively higher gross notional threshold that would likely exclude 

potential dealers that fall below that threshold, but which have high numbers of unique 

counterparties. 

Another approach could be to use a Counterparty Count threshold together with a gross 

notional threshold. In this approach, an entity would be required to register if the entity exceeds 

both (i) a gross notional threshold, and (ii) a dealing counterparty threshold. This approach 

could be used with a relatively lower gross notional threshold that, if used alone, may capture too 

many smaller dealers with de minimis activity (as evidenced by a small number of dealing 

counterparties). In effect, with the registration requirement applying only if two thresholds are 

exceeded, those smaller dealers with relatively low notional amounts and low Counterparty 

Counts would be excluded from registration as swap dealers. Under either approach, to address 

concerns regarding regulatory certainty, the Counterparty Count threshold would need to be high 

enough to permit entities to engage in a certain amount of swaps activity without concern about 

monitoring and remaining below the Counterparty Count threshold. 
56

Regarding the Transaction Count metric, while the data may indicate a loose correlation 

with dealing activity, Transaction Count appears to be less indicative of dealing activity as 

compared to Counterparty Count, and therefore, may be less effective as an alternative or 

additional metric for the de minimis exception. In reviewing the SDR data, staff notes that there 

are a number of entities that entered into thousands (in a few cases over 10,000) transactions, but 

had fewer than 20 unique counterparties, indicating that many of these entities may not be

dealing. These high transaction counts by non-dealers could be for any number of reasons, such 

as the nature of their hedging or trading strategies. 

Staff also notes that a number of other factors should be considered with respect to using 

Counterparty and/or Transaction Count as metrics for the de minimis exception, such as their 

impact on regulatory efficiency and certainty, and whether the use of such metrics would create 

incentives to structure transactions so as to avoid regulation. 

Given these considerations, CFTC staff welcomes comments on the following:

(1) Should Counterparty and/or Transaction Count be considered as possible metrics for 

the de minimis exception? 

(2) Are there other metrics that should be used instead? 

(3) Under what circumstances might entities have high Counterparty Counts and not be 

dealers in swaps? 

(4) If a multi-factor approach is used, what approach should be used and what should the 

thresholds be for the various metrics, taking into account the Commission’s policy 

objectives?

(5) Should the metrics used in a multi-factor approach be the same for each asset class?
57

(6) Are there any unique costs or benefits associated with this alternative to the de 

minimis exception?

3. Multi-Tiered Swap Dealer Regulation Alternative

As described below, the SDR data indicates that there appear to be a small number of 

large dealers with high levels of swap dealing activity and a second tier of entities, many of 

which may be engaged in swap dealing activity, but at substantially lower levels. In light of the 

various policy objectives served by swap dealer regulation and the de minimis exception, staff 

considered whether multiple tiers of regulation should be established for registered swap dealers. 

For example, less rigorous swap dealer regulation may be appropriate for: (1) small and midsized banking enterprises; and (2) entities that appear to be actively dealing, but for the reasons 

discussed above (e.g., low notional sizes), do not exceed the current $8 billion de minimis 

threshold. 

A multi-tiered approach could establish different levels of swap dealer regulation based 

on two gross notional thresholds: (1) one threshold would differentiate dealers with the largest 

amounts of gross notional dealing activity (“Tier 1 Dealers”); and (2) a second, lower threshold, 

would differentiate dealers with lower, but still significant, amounts of gross notional dealing 

activity (“Tier 2 Dealers”) from those with de minimis levels of activity. Entities that do not 

exceed the Tier 2 Dealer threshold would not be required to register. It is beyond the scope of 

this Preliminary Report to determine the specific constructs of such a multi-tiered framework, or 

to evaluate the advantages and disadvantages of this approach. Generally though, Tier 1 Dealers 

could, for example, be subject to the full scope of current swap dealer regulations, whereas Tier 

2 Dealers could be subject to a lesser set of regulations that still meet the requirements for 

regulating swap dealers enumerated under CEA Section 4s.
58 

Staff reviewed the SDR data for indicators to differentiate dealing activity among 

Potential Swap Dealing Entities. In Table 21 below, Potential Swap Dealing Entities in each 

asset class are grouped based on their Counterparty Counts. The first group is the top 20 entities 

in each asset class as measured by Counterparty Count (“Group A”); the second group 

represents the next 20 entities as measured by Counterparty Count (“Group B”); and the third 

group includes all remaining entities (“Group C”). These levels were selected for comparative 

purposes only for this Preliminary Report. A more detailed analysis of the data and swap 

markets would need to be conducted to determine the levels at which the different registration 

thresholds should be established. 

Table 21 – Comparison of Swap Activity by Dealer Groupings

Potential Swap Dealing 

Entities by 

Counterparty Count

(i)

Transactions Unique Counterparties Registered 

Swap 

Dealers

(vi)

Total 

Notional 

(USD 

Billions) 

(vii)

Total

(ii)

Median 

(iii)

Total

(iv)

Median

(v)

IRS

Top 20 LEIs 1,140,468 20,230 18,326 1,803 18 129,344

21-40 LEIs 235,851 2,578 5,992 456 19 27,078

Remaining LEIs 160,795 51 3,034 10 31 17,897

CDS

Top 20 LEIs 536,097 2,178 7,644 690 20 22,210

21-40 LEIs 21,204 114 156 17 17 1,006

Remaining LEIs 8,469 19 49 7 17 331

FX Derivatives

Top 20 LEIs 6,776,221 257,644 13,087 1,494 20 N/A

21-40 LEIs 1,145,292 27,753 2,102 234 20 N/A

Remaining LEIs 1,527,114 12 4,787 1 51 N/A

Equity

Top 20 LEIs 115,820 3,967 3,653 191 20 N/A

21-40 LEIs 3,819 106 100 12 13 N/A

Remaining LEIs 18,377 5 81 2 27 N/A

Non-Financial Commodity

Top 20 LEIs 485,085 9,987 4,230 216 17 N/A

21-40 LEIs 102,361 1,783 1,126 85 12 N/A

Remaining LEIs 516,271 15 1,041 2 38 N/A

Table 21 demonstrates that Group A entities had significantly higher median and total 

Counterparty and Transaction Counts compared to Group B entities in every swap asset class. 
59

Column (ii) indicates that Group A entities, in the aggregate, executed more than four times as 

many swaps in each asset class than Group B entities. Further, column (iii) indicates that the 

median number of swaps executed by Group A entities ranged from approximately five to over 

ten times higher than Group B entities. Moreover, columns (iv) and (v) indicate that in each 

asset class, Group A entities transacted with a significantly greater number of unique 

counterparties. The large differences in the median and total Counterparty and Transaction 

Counts between the two groups in every asset class suggest that there is substantial 

differentiation in the swap trading levels of the most active swap market participants.

The data also indicates that there may be a significant decrease in potential swap dealing 

activity for Group C entities. Staff notes that although the number of entities in Group C is much 

larger than the 20 entities in Group B, Group C entities have lower total Counterparty Counts 

across asset classes as compared to Group B, with the exception of FX Derivatives. More 

significantly, the median number of swaps executed by Group B entities was markedly higher, 

ranging from approximately six to as much as 2,000 times greater than the median number of 

transactions for Group C entities. 

As noted above, an assessment of the advantages and disadvantages of a multi-tiered de 

minimis exception is beyond the scope of this Preliminary Report. However, staff has set forth 

some of the issues that would need to be examined if such an alternative is to be considered. 

This is not, however, a complete list of such factors. Depending on where the Tier 2 Dealer 

threshold is set, a multi-tiered approach could result in an increase in the number of entities 

subject to Commission regulations, although at a reduced level of regulation. For example, 

entities may find that the reduced costs associated with registering and operating as a Tier 2 

Dealer may justify continued or expanded swap dealing, as well as potentially encourage new 
60

swap dealers to enter the market. In turn, this could increase the number of swaps covered by the 

swap dealer regulations applicable to Tier 2 Dealers. 

On the other hand, this approach could also result in currently registered swap dealers 

becoming Tier 2 Dealers subject to a reduced level of regulatory oversight. Generally, given that 

Tier 1 Dealers would have substantially higher levels of swap activity as compared to Tier 2 

Dealers, the benefits achieved from applying full swap dealer regulation to Tier 1 Dealers could 

be greater than the benefits achieved by applying those same regulations to Tier 2 Dealers, while 

reducing the costs of compliance for Tier 2 Dealers who would otherwise have been Tier 1 

Dealers. In this regard, it would be important to set the thresholds at appropriate levels such that 

the reduction in regulation of Tier 2 Dealers is consistent with the reduced involvement and 

impact they have individually, and in the aggregate, on the swap markets. 

A multi-tiered regulatory approach may also advance the policy objective of regulatory 

efficiency by allowing the Commission to focus more of its resources on the smaller number of 

Tier 1 Dealers. However, a multi-tiered approach could potentially reduce regulatory certainty. 

A tiered regulatory approach might also address, at least partially, some of the unique 

considerations discussed above in Section IV.B. For example, the issues regarding regulating 

smaller Non-Financial Commodity swap dealers and small and mid-sized banking enterprises

might be addressed through a multi-tiered approach.

Given these considerations, CFTC staff welcomes comments on the following:

(1) How would a multi-tiered regulatory structure impact the policy considerations 

underlying swap dealer regulation and the de minimis exception? 
61

(2) Given the apparent stratification of swap dealing activity in each asset class, should 

the Commission establish differing levels of regulation based on an entity’s relative 

amount of swap dealing activity? 

(3) Would a reduced level of regulation encourage entities to enter the swap markets or 

expand their swap dealing activities because the costs associated with registration and 

compliance would be reduced?

(4) Would a tiered regulatory structure address issues concerning the regulation of nonfinancial entities in the Non-Financial Commodity swap market or small and midsized banking enterprises? 

(5) If the Commission developed a multi-tiered approach, what factors and 

methodologies should it use to establish the appropriate thresholds for each tier?

(6) Are there any unique costs or benefits associated with this alternative to the de 

minimis exception?

4. Swaps Executed on a SEF or DCM and/or Cleared

Staff also considered whether swaps that are executed on a SEF or DCM and/or cleared

should be excluded from counting toward an entity’s de minimis calculation. Under CEA 

Section 2(h)(8), swaps subject to a clearing requirement pursuant to CEA Section 2(h) must be 

executed on a SEF or DCM, unless no SEF or DCM makes the swap available to trade or a 

clearing exception under CEA Section 2(h)(7) applies (“Trade-Execution Mandate”). 

Subsequent to the adoption of the swap dealer definition, certain categories of swaps have 

become subject to mandatory clearing and some types of swaps have become subject to the 

Trade-Execution Mandate. 
62

Through the execution of swaps on SEFs and DCMs, market participants benefit from 

viewing the prices of available bids and offers and from having access to transparent and 

competitive trading systems or platforms.91 In addition, one of the fundamental goals of Title 

VII of the Dodd-Frank Act, to reduce systemic risk, may be achieved by requiring central 

clearing of more swaps. Once a swap is cleared, the swap between the counterparties is 

extinguished and the risk mitigation is performed by the clearing organization. Accordingly,

swap dealer regulation may be of limited value with regard to swaps that are executed on a SEF 

or DCM and/or cleared.

Given these considerations, CFTC staff welcomes comments on the following: 

(1) How would the exclusion of SEF or DCM-traded and/or cleared swaps from an 

entity’s de minimis calculation impact the policy considerations underlying swap 

dealer regulation and the de minimis exception? 

(2) Should anonymity be a factor in determining whether exchange-traded and/or cleared 

swaps are treated differently under the de minimis exception?

(3) If exchange-traded and/or cleared swaps are excluded from an entity’s de minimis 

calculation, what other requirements, if any, should apply to the exclusion? 

(4) Would an exclusion for exchange-traded and/or cleared swaps increase the volume of 

swaps executed on SEFs or DCMs? 

(5) Are there any unique costs or benefits associated with this alternative to the de 

minimis exception?

(6) Has the Floor Trader Exclusion (see Appendix A) encouraged additional trading on 

SEFs? 

 91 See Core Principles and Other Requirements for Swap Execution Facilities, 78 Fed. Reg. 33476 (June 4, 2013). 
A-1 

Appendix A

The following table provides an overview of the CFTC regulations, guidance, and staff 

letters that staff considered in order to identify relevant data for conducting an analysis of the de 

minimis exception. More specifically, the table identifies when certain swaps may not count 

towards an entity’s de minimis calculation. Staff cautions that this discussion is a high level 

overview of the relevant law, regulation, guidance, and staff letters that were used to develop the 

methodology for the analysis of data for this Preliminary Report and should not be used as a 

definitive guide for how to calculate swap dealing activity under the swap dealer definition. 

Interested persons should refer to the text of the provisions cited below for specific details 

regarding the calculation of swap dealing activity for purposes of the de minimis exception. 

Summary of Relevant CFTC Regulations, Guidance, and Staff Letters

Topic Description

Regulation 1.3(ggg): Exclusion of Certain Swaps

IDI Exclusion Subject to certain requirements, swaps entered into by an IDI with a 

customer in connection with originating a loan with that customer are not 

considered in determining whether the IDI is a swap dealer.92

Inter-Affiliate

Exclusion 

Subject to certain requirements, a person’s swaps with its majority-owned 

affiliates are not considered in determining whether the person is a swap 

dealer. Counterparties to a swap are majority-owned if: (1) one 

counterparty directly or indirectly owns a majority ownership interest in the 

other; or (2) a third party directly or indirectly holds a majority interest in 

both counterparties.93

Cooperative 

Exclusion 

Subject to certain requirements, any swap that is entered into by a 

cooperative (e.g., cooperative associations of producers or a cooperative of 

financial entities) with a member of such cooperative is not considered in 

determining whether the cooperative is a swap dealer.94

 

92 See 17 C.F.R. § 1.3(ggg)(5); 77 Fed. Reg. at 30620-24.

93 See 17 C.F.R. § 1.3(ggg)(6)(i); 77 Fed. Reg. at 30624-25. 

94 See 17 C.F.R. § 1.3(ggg)(6)(ii); 77 Fed. Reg. at 30625-26.
A-2 

Topic Description

Physical Hedging 

Exclusion 

Subject to certain requirements, swaps entered into by a person for purposes 

of hedging physical positions are not considered in determining whether the 

person is a swap dealer.95

Floor Trader

Exclusion 

Subject to certain requirements, swaps entered into by a person in its 

capacity as a floor trader on or subject to the rules of a SEF or DCM are not 

considered for the purpose of determining whether the person is a swap 

dealer if the swaps are submitted for clearing to a DCO.

96

Additional De Minimis Calculation Considerations

Cross-Border 

Transactions

Regarding swap dealing transactions involving one or more non-U.S. 

persons, the general considerations for including such transactions in the de 

minimis calculation are as follows:

(1) U.S. persons (as defined in the Cross-Border Guidance) include all 

dealing swaps with U.S. and non-U.S. persons.97

(2) Non-U.S. persons that are not “guaranteed affiliates” and not “affiliate 

conduits” (as described in the Cross-Border Guidance98) count dealing 

swaps with:

a. U.S. persons other than a foreign branch of a registered U.S. swap 

dealer;99 or 

b. Non-U.S. persons that are guaranteed affiliates of U.S. persons 

unless the non-U.S. guaranteed affiliate is: (1) a registered swap 

dealer; (2) not a registered swap dealer but engages in de minimis

swap dealing activity and is affiliated with a swap dealer; or (3) 

guaranteed by a non-financial entity. In such instances, the swap 

may be excluded from the de minimis calculation.100

In addition, when non-U.S. persons that are not guaranteed affiliates and not 

affiliate conduits enter into swaps anonymously on a registered DCM, SEF, 

or foreign board of trade and such swaps are cleared, the non-U.S. persons 

generally need not include such swaps in their de minimis calculation.101

 

95 17 C.F.R. § 1.3(ggg)(6)(iii); 77 Fed. Reg. at 30611-14.

96 17 C.F.R. § 1.3(ggg)(6)(iv); 77 Fed. Reg. at 30614. Staff notes that the Floor Trader Exclusion was addressed 

in no-action relief as well. See CFTC Staff Letter No. 13-80 (Dec. 23, 2013).

97 78 Fed. Reg. at 45316-18.

98 Id. at 45318.

99 Id. at 45324.

100 Id.

101 Id. at 45325.
A-3

Topic Description

(1) Non-U.S. persons that are guaranteed affiliates – Such persons include

all dealing swaps with U.S. and non-U.S. persons.102

(2) Non-U.S. persons that are affiliate conduits – Such persons include all 

dealing swaps with U.S. and non-U.S. persons.103

Additionally, subject to several restrictions, U.S. banks that are wholly 

owned by a foreign entity may calculate the de minimis threshold 

without including activity from their foreign affiliates.104

FX Derivatives Pursuant to the FX Exemption, a person need not count certain foreign 

exchange products – namely FX swaps and FX forwards – towards its de 

minimis calculation. “Foreign exchange forwards” and “foreign exchange 

swaps,” as defined in the CEA, are considered swaps under the swap 

definition unless the Secretary of the Treasury issues a written 

determination that either foreign exchange swaps, foreign exchange 

forwards, or both: (1) should not be regulated as swaps; and (2) are not 

structured to evade the Dodd-Frank Act in violation of any rule promulgated 

by the CFTC pursuant to Section 721(c) of the Dodd-Frank Act.105 The 

Secretary of the Treasury issued such a determination with respect to both 

FX swaps and FX forwards on November 20, 2012.106 

Notwithstanding the determination, certain provisions of the CEA continue 

to apply to such transactions. Specifically, those transactions are subject to 

certain reporting requirements, and swap dealers engaging in such 

transactions are subject to certain business conduct standards.107

However, the FX Exemption is not applicable for certain categories of 

foreign exchange products, including foreign exchange options and nondeliverable forwards.108 Foreign exchange options and non-deliverable 

forwards are therefore FX Derivatives. It is also noted that currency and 

cross-currency swaps are categorized as IRS.

As discussed in the Swap Definition Adopting Release, in general, the 

Commission does not have regulatory jurisdiction over foreign exchange 

spot transactions, and as such, foreign exchange spot transactions are not 

 102 Id. at 45318-19.

103 Id.

104 CFTC Staff Letters No. 12-61 (Dec. 20, 2012) and 12-71 (Dec. 31, 2012).

105 77 Fed. Reg. at 48253.

106 77 Fed. Reg. at 69704-05.

107 77 Fed. Reg. at 48253; 77 Fed. Reg. at 69704-05.

108 77 Fed. Reg. at 48254-56; 77 Fed. Reg. at 69695, 69703-04.
A-4 

Topic Description

included in the definition of a “swap” and are not included in the de minimis

calculation.109

Commodity Trade 

Option Exemption

Subject to certain requirements, commodity trade options entered into by 

certain persons are not considered for purposes of determining whether the 

person is a swap dealer.110

Portfolio 

Compression NoAction Relief

Staff provided no-action relief from the requirement to include the gross 

notional amount of “compression exercise swaps” in determining whether a 

person has exceeded the de minimis threshold.111

International 

Financial 

Institution 

Treatment

The Commission has stated that foreign governments, foreign central banks,

and international financial institutions should not be required to register as 

swap dealers.

112 

 

109 77 Fed. Reg. at 48257.

110 17 C.F.R. § 32.3; Commodity Options, 77 Fed. Reg. 25320, 25326 n.39 (Apr. 27, 2012).

111 CFTC Staff Letter No. 12-62 (Dec. 21, 2012).

112 77 Fed. Reg. at 30693.