SWAP DEALER DE MINIMIS EXCEPTION 

FINAL STAFF REPORT

A REPORT BY STAFF 

OF THE U.S. COMMODITY FUTURES TRADING COMMISSION 

PURSUANT TO REGULATION 1.3(ggg) 

August 15, 2016 

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. Overview ................................................................................................................................ 1

A. Statutory and Regulatory Background ................................................................................ 1

B. Overview of Preliminary and Final Report ......................................................................... 2

II. Preliminary Report – Findings and Discussion of Comments Received ......................... 4

A. Overview of Preliminary Report Findings .......................................................................... 4

1. Preliminary Report Data ............................................................................................... 4

2. Preliminary Report Assumptions and Methodology .................................................... 4

(i) LEI and USI Assumptions ........................................................................................ 5

(ii) Entity-Based Assumptions ........................................................................................ 5

(iii) Activity-Based Assumptions .................................................................................... 6

(iv) Dealing Metrics ......................................................................................................... 6

3. Preliminary Report Findings ........................................................................................ 7

(i) Overview of Potential Swap Dealing in Each Asset Class ....................................... 7

(ii) Impact of a Higher or Lower Gross Notional Threshold .......................................... 7

(iii) Impact of the Current $8 Billion Threshold in Each Asset Class ............................. 8

B. Discussion of Comments .................................................................................................... 8

1. Single Gross Notional De Minimis Threshold .............................................................. 9

(i) Maintain or Raise the De Minimis Threshold ........................................................... 9

(ii) Lower Threshold as Scheduled ............................................................................... 13

2. Swaps Executed on a SEF or DCM and/or Cleared ................................................... 14

3. Multi-Factor De Minimis Threshold ........................................................................... 15

4. Different De Minimis Notional Thresholds by Asset Class ....................................... 16

5. IDI Exclusion .............................................................................................................. 17

6. Impact of Capital and Margin Rules ........................................................................... 17

III. Final Report – Findings and Discussion of Alternatives ................................................. 18

A. Data Improvements ........................................................................................................... 18

B. Final Report Data .............................................................................................................. 19

C. Final Report Findings ....................................................................................................... 20

1. Impact of Higher or Lower Gross Notional De Minimis Threshold ........................... 20

2. Impact of the Current $8 Billion Threshold in Each Asset Class ............................... 21
ii

D. Discussion of De Minimis Exception Alternatives ........................................................... 23

1. Higher or Lower Gross Notional De Minimis Threshold ........................................... 23

2. Swaps Executed on a SEF or DCM and/or Cleared ................................................... 25

3. Multi-Factor De Minimis Threshold ........................................................................... 25

4. Different De Minimis Notional Thresholds by Asset Class ....................................... 26

IV. Key Issues for Commission Consideration ....................................................................... 26
1

I. Overview 

A. Statutory and Regulatory Background 

On May 23, 2012, the U.S. Commodity Futures Trading Commission (“Commission” or 

“CFTC”) and the U.S. Securities and Exchange Commission (“SEC”), pursuant to their 

statutory directive under Section 721 of the Dodd-Frank Act,1jointly issued CFTC Regulation2

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

exception therein.3

 Specifically, Regulation 1.3(ggg) provides that a person is not considered to 

be a swap dealer unless its swap dealing activity exceeds an aggregate gross notional amount 

threshold of $3 billion over the prior 12-month period, subject to a phase-in period during which 

the threshold is set at $8 billion.4 The phase-in period will terminate on December 31, 2017, 

unless the Commission takes action prior to that date to set a different termination date or to 

modify the de minimis exception. 

In light of the limited data available about the swap market at the time the de minimis

exception was adopted, Regulation 1.3(ggg)(4)(ii)(B) directed Commission staff to complete and 

publish for public comment a report on topics relating to the definition of the term “swap dealer” 

 

1

 The Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank Act”) directed the CFTC 

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

swap dealer an entity that engages in a de minimis quantity of swap dealing. 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.). Pursuant to that 

statutory requirement, the CFTC and the SEC jointly issued Regulation 1.3(ggg). 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). 

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, 30634 n.464 (May 23, 

2012). 

2

 Commission regulations referred to herein are found at 17 C.F.R. Ch. 1 (2014) and are accessible on the 

Commission’s website, at www.cftc.gov. 

3

 See 77 Fed. Reg. 30596. 

4

 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”). 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). 
2

and the de minimis threshold. To provide ample opportunity for public input on the relevant 

issues, on November 18, 2015, CFTC staff issued for public comment the Swap Dealer De 

Minimis Exception Preliminary Report (“Preliminary Report”).5

 Staff is now issuing this Swap 

Dealer De Minimis Exception Final Staff Report (“Final Report”), which supplements the 

Preliminary Report and provides a summary of comments received and further data analysis. 

The Preliminary Report and Final Reports together comprise the “report” required by Regulation 

1.3(ggg)(4)(ii)(B). 

B. Overview of Preliminary and Final Report 

The Preliminary Report sought to analyze the available swap data, in conjunction with 

relevant policy considerations, to assess the current de minimis threshold and potential 

alternatives to the de minimis exception. Staff received twenty-four comment letters6 responsive 

to the Preliminary Report.7 The Final Report refreshes much of the analysis conducted in the 

 

5

 Swap Dealer De Minimis Exception Preliminary Report, available at

http://www.cftc.gov/idc/groups/public/@swaps/documents/file/dfreport_sddeminis_1115.pdf. 

6

 Joint letter from American Bankers Association and ABA Securities Association (“ABA”) dated January 19, 

2016; joint letter from International Swaps and Derivatives Association and Securities Industry and Financial 

Markets Association (“ISDA/SIFMA”) dated January 19, 2016; letters from American Gas Association (“AGA”), 

American Insurance Association (“AIA”), Americans for Financial Reform (“AFR”), BOKF, NA (“BOK”), 

Coalition for Derivatives End-Users (“CODE”), The Commercial Energy Working Group (“CEWG”), EDF 

Trading North America (“EDFTNA”), Financial Services Roundtable (“FSR”), Institute of International Bankers 

(“IIB”), International Energy Credit Association (“IECA”), Japanese Bankers Association (“JBA”), Macquarie 

Energy LLC (“MELLC”), Natural Gas Supply Association (“NGSA”), Regions Bank (“Regions”), and Virtu 

Financial, Inc. (“Virtu”) dated January 19, 2016; letter from M&T Bank (“M&T”) dated January 13, 2016; letter 

from Daiwa Securities Co. Ltd. (“Daiwa”) dated January 14, 2016; letters from Commodity Markets Council 

(“CMC”) and The Edison Electric Institute (“EEI”) dated January 15, 2016; joint letter from Western Union 

Business Solutions (USA), LLC and Custom House USA, LLC (“WUBS”) dated January 18, 2016; letter from 

Senators Feinstein, Boxer, Wyden, Merkley, Murray, and Cantwell (“Six U.S. Senators”) dated January 20, 2016; 

and letter from FIA Principal Traders Group (“FIA-PTG”) dated January 27, 2016. Public comments may be 

viewed on the Commission’s website at: http://comments.cftc.gov/PublicComments/CommentList.aspx?id=1634.

7

 In addition, the Preliminary Report was discussed at public meetings of the Commission’s Technology 

Advisory Committee (“TAC”) on February 23, 2016, and the Commission’s Energy and Environmental Markets 

Advisory Committee (“EEMAC”) on February 25, 2016. Generally, the speakers at these meetings discussed many 

of the same views expressed in the comment letters responding to the Preliminary Report. See generally CFTC 

TAC Meeting Agenda, available at

http://www.cftc.gov/About/CFTCCommittees/TechnologyAdvisory/tac_022316agenda; CFTC EEMAC Meeting 
3

Preliminary Report for a subsequent review period. Section II discusses the methodologies and 

findings of the Preliminary Report, as well as comments received. Section III discusses the Final 

Report findings as well as the de minimis alternatives considered by staff in the Preliminary 

Report in light of refreshed data and comments received. 

In addition to discussing the de minimis threshold level, Section IV of the Final Report 

also notes the following issues for the Commission’s future consideration: (i) assessing the 

appropriateness of excluding from the de minimis calculation swaps that are executed on a swap 

execution facility (“SEF”) or designated contract market (“DCM”) and/or cleared; and (ii) 

reconsidering the parameters of the exclusion for swaps related to loans made by insured 

depository institutions (“IDI Exclusion”). 

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

Intermediary Oversight. For further information contact: Eileen T. 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, Commodity 

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

20581. Amy Butler, Senior Data Analyst (Contractor) in the Office of Data and Technology, and 

Jeffrey Hasterok, Data and Risk Analyst in the Division of Swap Dealer and Intermediary 

Oversight, are also recognized for their significant contributions to this Final Report.

 

Agenda, available at

http://www.cftc.gov/About/CFTCCommittees/EnergyEnvironmentalMarketsAdvisory/eemac_022516agenda. 
4

II. Preliminary Report – Findings and Discussion of Comments Received 

The Preliminary Report analyzed the available swap data to assess the impact of a de 

minimis threshold that is higher or lower than the $8 billion threshold and discussed the data in 

light of potential alternatives to the de minimis exception. This section first summarizes the 

methodology and findings of the Preliminary Report, and then discusses the relevant comments 

received. 

A. Overview of Preliminary Report Findings 

1. Preliminary Report Data 

For the Preliminary Report, staff analyzed swap data for the period of April 1, 2014 

through March 31, 2015 (“Preliminary Report Review Period”) for the following asset classes: 

interest rate swaps (“IRS”); credit default swaps (“CDS”); non-financial commodity (“NonFinancial Commodity”) swaps; foreign exchange derivatives (“FX Derivatives”);8

and equity 

(“Equity”) swaps. The data used in the Preliminary Report was primarily sourced from the four 

swap data repositories (“SDRs”) registered with the Commission.9

2. Preliminary Report Assumptions and Methodology10

Certain limitations in the reported data impacted staff’s ability to precisely assess the 

current de minimis threshold or the potential impact of changes to the current de minimis 

exception. Pursuant to Regulation 1.3(ggg), staff attempted to calculate the total notional dealing 

 

8

 Pursuant to a determination issued by the Secretary of the Treasury, foreign exchange swaps and foreign 

exchange forwards do not count towards an entity’s de minimis calculation. See Determination of Foreign Exchange 

Swaps and Foreign Exchange Forwards Under the Commodity Exchange Act, 77 Fed. Reg. 69694, 69704-05 (Nov. 

20, 2012). See also Preliminary Report at 47-48, Appendix A. 

9

 As of the publication of the Preliminary and Final Reports, the following SDRs were registered with the 

Commission: Chicago Mercantile Exchange Swap Data Repository, DTCC Data Repository, ICE Trade Vault, and 

BSDR, LLC. 

10

 See Preliminary Report at 12-21.
5

activity for market participants over a 12-month period to assess how the swap markets might be 

impacted by potential changes to the current de minimis exception. However, the SDR data 

lacked certain key information necessary to conduct such an analysis, including: (i) a reporting 

field to indicate whether a swap was entered into for dealing purposes; (ii) reliable notional data 

for Non-Financial Commodity swaps, FX Derivatives, and Equity swaps; and (iii) complete legal 

entity identifier (“LEI”) and unique swap identifier (“USI”) information. Accordingly, staff 

developed several assumptions and methodologies to approximate potential dealing activity 

across all five asset classes. A more robust discussion of these assumptions may be found in the 

Preliminary Report.

(i) LEI and USI Assumptions11

When a swap record contained an invalid LEI for one or both counterparties, staff 

attempted to use other identifying information in the record to manually link the swap to the 

correct counterparties. Additionally, staff attempted to manually filter out duplicative USIs that 

were included in the SDR data due to clearing, allocations, and compressions. 

(ii) Entity-Based Assumptions12

Given that the SDR data does not indicate whether a swap was entered into for dealing 

purposes, staff sought to exclude certain types of entities from its analysis that were less likely to 

be engaged in swap dealing, based on the nature of their business activities. In particular, the 

following types of entities were excluded from consideration as potential swaps dealers: (i) 

collective investment vehicles; (ii) foreign central banks and other government-related 

international financial institutions; (iii) cooperatives; and (iv) insurance companies and non-bank 

 

11

 See Preliminary Report at 12-14.

12

 See Preliminary Report at 15-16.
6

financing companies. The Preliminary Report noted that these entity-based exclusions are not a 

determinative means of assessing whether any particular entity is engaged in swap dealing. 

However, in light of the data limitations, staff assumed for purposes of its analysis that any 

entities remaining in the swap data after implementing the entity-based assumptions were more 

likely to be engaged in at least some degree of swap dealing activity (“Potential Swap Dealing 

Entities”). 

(iii) Activity-Based Assumptions13

Staff further refined its analysis by excluding certain types of swaps that do not count 

towards an entity’s de minimis calculation. Specifically, where practicable, staff removed interaffiliate swaps and swaps between two non-U.S. persons. 

(iv) Dealing Metrics14

An entity’s de minimis calculation is measured by its total gross notional dealing activity 

over a 12-month period. However, reliable notional data was not available for Non-Financial 

Commodity swaps, FX Derivatives, or Equity swaps. To estimate dealing activity across all 

asset classes, staff relied on the number of unique counterparties an entity faced (“Counterparty 

Count”) and the number of transactions an entity entered into (“Transaction Count”) as 

alternative indicators of potential dealing activity. Although these metrics are not determinative, 

staff found that entities might be more likely to be engaged in swap dealing if they had greater 

than 50 counterparties and/or 10,000 transactions during a one-year period.15

 

 

13

 See Preliminary Report at 16-18.

14

 See Preliminary Report at 18-21, 32-34. 

15

 See Preliminary Report at 32-33 (“Staff’s 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.”).
7

3. Preliminary Report Findings 

(i) Overview of Potential Swap Dealing in Each Asset Class16

After applying the assumptions described above, staff aggregated the notional IRS and 

CDS activity of affiliated entities to estimate the approximate number of Potential Swap Dealing 

Entities that exceeded various notional thresholds during the Preliminary Report Review Period. 

For asset classes that lacked reliable notional data, staff analyzed Counterparty and Transaction 

Counts to arrive at a baseline analysis of potential swap dealing activity. Staff’s analysis 

indicated that the potential dealing activity in all five asset classes appeared to be concentrated 

among a small number of entities in each asset class. After establishing the above approximate 

baseline for potential dealing activity in each asset class, staff then performed additional analyses 

to assess how potential changes to the current $8 billion de minimis threshold might impact the 

swap markets.

(ii) Impact of a Higher or Lower Gross Notional Threshold17

The Preliminary Report appeared to indicate that while any change to the current $8 

billion de minimis threshold may impact the registration status of many individual market 

participants, only a substantial increase or decrease in the de minimis threshold would have a 

significant impact on the amount of IRS or CDS activity covered by swap dealer regulation, as 

measured by notional amount, transactions, or unique counterparties, assuming trading activity 

remains unchanged.18

 For example, the Preliminary Report indicated that if the de minimis 

threshold was lowered to $3 billion, approximately 83 additional entities trading in IRS and CDS 

might have to register as swap dealers, while less than 2% of additional IRS and CDS activity 

 

16

 See Preliminary Report at 21-34. 

17

 See Preliminary Report at 48-50.

18 This analysis was limited to IRS and CDS, as reliable notional data was not available for the other asset classes. 
8

would be covered by swap dealer regulation. Similarly, at the $15 billion level, approximately 

22 fewer entities trading in IRS and CDS might need to register as swap dealers, resulting in a 

decrease in coverage of less than 1% for notional activity and swap transactions and less than 4% 

for unique counterparties. However, as discussed in the Preliminary Report, it is likely that the 

incremental changes in regulatory coverage would be smaller than these estimated amounts,

given that hedging and proprietary trading activity could not be entirely excluded from the 

analysis. 

(iii) Impact of the Current $8 Billion Threshold in Each Asset Class19

The Preliminary Report also appeared to indicate that the majority of all swap 

transactions included a registered swap dealer at the current $8 billion de minimis threshold. 

Specifically, the percentage of swaps in each asset class involving at least one registered swap 

dealer was greater than 95% for IRS and CDS, and approximately 93%, 90%, and 78% for 

Equity swaps, FX Derivatives, and Non-Financial Commodity swaps, respectively. 

B. Discussion of Comments 

In this section, staff summarizes public comments addressing the following alternatives 

discussed in the Preliminary Report: (i) a higher or lower notional de minimis threshold; (ii) the 

exclusion of swaps that are traded on a registered or exempted SEF or DCM and/or cleared from 

an entity’s de minimis calculation; (iii) 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; and (iv) a notional de minimis threshold specific to each asset 

class. In addition, staff discusses comments received regarding the scope of the IDI Exclusion, 

 

19

 See Preliminary Report at 51-53.
9

as well as the potential impact of the forthcoming capital and margin regulations on swap 

dealers. 

The Preliminary Report discussed each of these alternatives in the context of the 

available data and relevant policy considerations. As discussed in the Preliminary Report,20

there are several policy objectives underlying swap dealer regulation and the de minimis 

exception to swap dealer registration. The key policy objectives of swap dealer regulation 

include the reduction of systemic risk, increased counterparty protections and market efficiency, 

orderliness, and transparency.21

 These policy objectives are considered along with those 

furthered by a de minimis exception, which include regulatory certainty, allowing limited 

ancillary dealing, encouraging new participants, and regulatory efficiency.22 

1. Single Gross Notional De Minimis Threshold 

In response to the Preliminary Report, the majority of commenters stated that the current 

de minimis threshold should be maintained or raised, while two commenters recommended that 

the threshold should be lowered to $3 billion as scheduled. 

(i) Maintain or Raise the De Minimis Threshold 

Twenty commenters generally stated that the Commission should maintain or raise the 

single gross notional de minimis threshold.23 Seventeen commenters specifically stated that the 

Commission either should issue an interim final rule that would eliminate the automatic phase-in 

of the $3 billion threshold and maintain or raise the current threshold of $8 billion, or should 

pursue other alternatives to ensure that the automatic phase-in of the $3 billion threshold does 

 

20

 See Preliminary Report at 34-38.

21

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

22

 See 77 Fed. Reg. at 30628-29, 30708. 

23

 See letters from ABA, AGA, AIA, BOK, CDEU, CEWG, CMC, EDFTNA, EEI, FSR, IIB, IECA, 

ISDA/SIFMA, JBA, M&T, MELLC, NGSA, Regions, Virtu, and WUBS. 
10

not occur.24 Some commenters stated that the Commission should extend the phase-in period to 

provide additional time to obtain better data before making any adjustments to the current $8 

billion threshold. As discussed in further detail below, commenters explained that current data 

quality issues and policy considerations warrant this approach. 

a. Data Quality Considerations 

In support of their position that the de minimis threshold should either be maintained or 

raised, fourteen commenters stated that data quality issues should be resolved to allow for a 

complete analysis of the impact of any potential adjustments to the de minimis exception before 

reducing it or otherwise making adjustments.25 Nine commenters stated that the Commission 

should amend the reporting regulations or make other data reporting changes to improve data 

quality and enable a more informed analysis of the de minimis exception.26 Specifically, certain 

commenters supported the Commission’s efforts to improve SDR data as discussed in the Draft 

Technical Specifications for Certain Swap Data Elements.27 In addition, multiple commenters 

supported the inclusion of data fields in SDR reporting to indicate that a swap was non-dealing 

activity or otherwise should be excluded from an entity’s de minimis calculation.28 Additionally, 

 

24

 See letters from ABA, AGA, AIA, BOK, CDEU, CEWG, CMC, EDFTNA, EEI, FSR, IECA, ISDA/SIFMA, 

M&T, MELLC, NGSA, Regions, and Virtu. In addition, several commenters also referenced a non-binding 

Congressional Directive stating that the Commission should establish a de minimis threshold of $8 billion or greater 

within 60 days of enactment of the Consolidated Appropriations Act of 2016 (i.e., by February 16, 2016). See

letters from ABA, CDEU, CEWG, CMC, EEI, IECA, ISDA/SIFMA, and Regions. See also Accompanying 

Statement to the Consolidated Appropriations Act of 2016, Explanatory Statement Division A at 32 (Dec. 2015), 

available at http://docs.house.gov/meetings/RU/RU00/20151216/104298/HMTG-114-RU00-20151216-SD002.pdf; 

H.Rpt. 114-205 at 76 (July 14, 2015), available at https://www.congress.gov/114/crpt/hrpt205/CRPT114hrpt205.pdf. 

25

 See letters from ABA, AGA, AIA, CDEU, CEWG, CMC, EDFTNA, EEI, FSR, IECA, ISDA/SIFMA, M&T, 

NGSA, and Regions. 

26

 See letters from AIA, CEWG, CMC, EDFTNA, EEI, FSR, IECA, M&T, and Regions. 

27

 See letters from CEWG, EEI, FSR, and Regions; Draft Technical Specifications for Certain Swap Data 

Elements (Dec. 22, 2015), prepared by staff of the CFTC, available at

http://www.cftc.gov/idc/groups/public/@newsroom/documents/file/specificationsswapdata122215.pdf. 
11

commenters stated that the Commission should provide greater clarity to market participants 

regarding the notional amount calculation.29 

b. Policy Considerations 

Twenty commenters stated that the Commission should maintain or raise the single gross 

notional de minimis threshold because the policy goals for the de minimis exception would be 

better advanced if the threshold was maintained at, or raised above, the current $8 billion 

threshold.30 In general, these commenters stated that a reduced single gross notional de minimis

threshold could lead certain entities to reduce or cease swap activity to avoid registration and its 

related costs. The commenters expressed concern that this could lead to negative impacts for 

certain swap market participants including, but not limited to, current non-dealer banks and their 

end-user customers, as well as Non-Financial Commodity swap market participants. These 

commenters noted that the potential negative impacts could include: (i) increased concentration 

in the swap dealing market; (ii) reduced availability of potential swap counterparties; (iii) 

reduced liquidity; (iv) increased volatility; and/or (v) higher fees or reduced competitive 

pricing.31

Some commenters expressed other policy-related concerns regarding a lower de minimis

threshold. Specifically, commenters stated that: (i) a reduced threshold would not capture 

significant additional dealing activity;32 (ii) a reduced single gross notional de minimis threshold 

 

28

 See letters from ABA, CEWG, CMC, EEI, FSR, IECA, M&T, and Regions. 

29

 See letters from EDFTNA, EEI, IIB, JBA, and NGSA (citing 2012 letter requesting clarification for NonFinancial Commodity swaps). 

30

 See letters from ABA, AGA, AIA, BOK, CDEU, CEWG, CMC, EDFTNA, EEI, FSR, IIB, IECA, 

ISDA/SIFMA, JBA, M&T, MELLC, NGSA, Regions, Virtu, and WUBS. 

31

 See id. 

32

 See letters from ABA, CEWG, CMC, FSR, IECA, ISDA/SIFMA, JBA, MELLC, NGSA, Regions, and WUBS. 
12

would lead to an ineffective use of Commission resources;33 and (iii) the nature of the swap 

activity of certain entities (such as commercial banks that have swap dealing activity below $8 

billion, commodity traders, and commercial end-users) does not pose systemic risk.34 

Further, several commenters stated that decreasing the de minimis threshold according to 

the current phase-in schedule would be destabilizing for market participants without an adequate 

implementation period.35 Specifically, given that swap dealing activity is calculated based on the 

preceding 12-month period, a reduction of the de minimis threshold to $3 billion in December 

2017 would require market participants to adjust swap dealing activity beginning in January 

2017. Commenters stated that this schedule would require business plan adjustments and 

registration related activities to commence by early to mid-2016. Accordingly, in light of these 

timing concerns, these commenters advocated for prompt Commission action to maintain the de 

minimis threshold at $8 billion. 

Finally, several commenters noted that for Non-Financial Commodity swaps, volatility in 

commodity pricing can cause significant swings in the notional value of transactions.36

 

Therefore, if non-financial commodity prices increase, the same level of swap dealing activity 

could cause a market participant to exceed the de minimis threshold, which, in turn, could force 

certain market participants to reduce their swap dealing activity. Commenters asserted that this 

concern would be magnified if the de minimis threshold is reduced. 

 

33

 See letters from BOK, CEWG, FSR, JBA, MELLC, Regions, and WUBS. 

34

 See letters from ABA, AIA, BOK, CEWG, EDFTNA, EEI, FSR, M&T, MELLC, and Regions. 

35

 See letters from ABA, CEWG, CMC, IECA, ISDA/SIFMA, and Regions. 

36

 See letters from ABA, BOK, CEWG, CMC, EEI, IECA, MELLC, NGSA, and Regions. 
13

(ii) Lower Threshold as Scheduled 

The Six U.S. Senators stated that the de minimis threshold should be lowered to $3 billion 

as planned, and that the CFTC should ensure that all swap asset classes receive appropriate 

oversight.37 The comment letter expressed particular concern that more than a de minimis

portion of energy swaps activity may be exempt from oversight under the $8 billion single gross 

notional de minimis threshold currently in effect. Additionally, the Six U.S. Senators asserted 

that the Commission should examine whether the threshold should be lowered further due to the 

negative impact that market manipulation can have on markets, in particular the Non-Financial 

Commodity swap market. 

Another commenter stated that the Preliminary Report did not provide sufficient evidence 

to justify maintaining or increasing the de minimis threshold and therefore, the Commission 

should ensure that the phase-in to $3 billion is implemented because the marketplace would 

benefit if additional entities were required to register.38

 The commenter added that the intent of 

the swap dealer definition and the de minimis exception was to ensure that commercial end-users 

were not subject to the swap dealer definition. The commenter further stated that the current de 

minimis exception is too broad because a wide range of financial entities holding themselves out 

as swap dealers are also able to take advantage of the exception. The commenter noted that the 

Preliminary Report indicated that there were at least seven non-financial entities with at least 75 

counterparties or 5,000 transactions in the Non-Financial Commodity asset class that were not 

registered as swap dealers. 

 

37

 See letter from Six U.S. Senators. 

38

 See letter from AFR. 
14

2. Swaps Executed on a SEF or DCM and/or Cleared 

The Preliminary Report noted that 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.39 The execution of swaps on SEFs and DCMs enables market participants 

to view the prices of available bids and offers and provides access to transparent and competitive 

trading systems or platforms.40 In addition, a reduction of systemic risk may be achieved by 

requiring central clearing of more swaps. Accordingly, staff considered whether swap dealer 

regulation may be of limited value with regard to swaps that are executed on a SEF or DCM 

and/or cleared. 

Several commenters supported the exclusion of swaps that are executed on a SEF or 

DCM and/or cleared from an entity’s de minimis calculation.41 These commenters generally 

indicated that such swaps are already effectively regulated as a result of being executed on a SEF 

or DCM and/or cleared. One commenter stated that such transactions are already subject to rules 

and regulations that further the goals of swap dealer regulation, including regulatory capital 

requirements for clearing members of derivatives clearing organizations, and reporting 

requirements for SEFs and DCMs.42

One commenter opposed this approach, explaining that the intent of the Dodd-Frank Act 

was to require registration of all entities holding themselves out as dealers, regardless of 

execution and clearing.43 

 

39

 See Preliminary Report at 61-62. 

40

 See Core Principles and Other Requirements for Swap Execution Facilities, 78 Fed. Reg. 33476 (June 4, 2013). 

41

 See letters from ABA, CMC, Daiwa, EEI, FIA-PTG, IECA, IIB, JBA, and Regions. 

42

 See letter from FIA-PTG. 

43

 See letter from AFR. 
15

3. Multi-Factor De Minimis Threshold 

In the Preliminary Report, staff considered the establishment of a de minimis exception 

based upon a combination of (i) gross notional swap dealing activity, and/or (ii) Counterparty 

Count.44 One approach considered would require an entity to register if its dealing activity 

exceeds either (i) a gross notional threshold, or (ii) a counterparty threshold. Another approach 

considered would require an entity to register if its dealing activity exceeds both (i) a gross 

notional threshold, and (ii) a counterparty threshold. Consideration of using Transaction Counts 

as a factor was also addressed in the Preliminary Report. 

Many of the commenters stated that the Commission should not use the alternative 

factors of Counterparty and/or Transaction Count as part of a de minimis exception because they 

are misleading or arbitrary indicators of dealing activity.45 Specifically commenters stated that: 

(i) these alternative metrics are not indicative of dealing activity;46 (ii) using these alternative 

factors could constrain firms’ business models or disincentivize market participants from 

entering into swaps, particularly with smaller customers;47 and/or (iii) such an approach would 

increase the potential for regulatory uncertainty and decrease efficiency by requiring firms and 

the Commission to increase the resources for monitoring the de minimis exception.48

 

However, two commenters stated that the Commission should use the alternative factors 

of Counterparty and/or Transaction Count as part of a de minimis exception.49 Specifically, these 

 

44

 See Preliminary Report at 54-57. 

45

 See letters from ABA, BOK, CEWG, CMC, EDFTNA, EEI, FSR, IECA, ISDA/SIFMA, Regions, and WUBS. 

46

 See id. 

47

 See letters from CEWG, CMC, EDFTNA, EEI, FSR, IECA, Regions, and WUBS. 

48

 See letters from CMC, EDFTNA, EEI, FSR, IECA, ISDA/SIFMA, Regions, and WUBS. 

49

 See letters from IIB and JBA. 
16

commenters stated that a multi-factor test could avoid arbitrary outcomes by taking into account 

more characteristics of an entity’s swap activities. 

4. Different De Minimis Notional Thresholds by Asset Class 

The Preliminary Report analyzed the percentage of swaps involving at least one 

registered swap dealer to determine the extent to which swap activity for each asset class was 

subject to swap dealer regulation, due to the registration status of one or both of the 

counterparties, at the current de minimis threshold.50 Due to the differences in regulatory 

coverage across asset classes, the Preliminary Report requested comments on the possibility of 

establishing a notional de minimis threshold specific to each asset class. 

Several commenters did not support establishing different notional thresholds for 

different asset classes.51 Commenters noted that such an approach could create unnecessary 

confusion for market participants and increase the burdens of their compliance and surveillance 

programs.

52

 However, two commenters stated that the current de minimis threshold may be too 

high for the Non-Financial Commodity swap market, particularly with respect to the energy 

swap market, with the result that more than a de minimis portion of the Non-Financial 

Commodity swap market is being exempted from appropriate regulation.53 Additionally, two 

commenters stated that they would not oppose different de minimis thresholds for specific asset 

classes if those thresholds reflected the needs of the different asset markets.54

 

50

 See Preliminary Report at 51-53. 

51

 See letters from ABA, CEWG, EDFTNA, JBA, Regions, and WUBS. 

52

 See letters from ABA, JBA, and Regions. 

53

 See letters from AFR and Six U.S. Senators. 

54

 See letters from AIA (stating that insurance risk derivatives could be differentiated as a separate asset class), 

and EEI (stating that it would not oppose a different de minimis threshold for the Non-Financial Commodity swap 

asset class if the revised threshold took into account price fluctuations in the underlying cash commodity market). 
17

Further, eleven commenters noted that lowering the de minimis threshold would likely 

hurt liquidity in the Non-Financial Commodity swap market.55 Two commenters stated that 

some non-financial entities currently monitor and limit their swap dealing activity in order to 

remain below the de minimis threshold.56 One commenter discussed the qualitative differences 

between financial and non-financial entities in the Non-Financial Commodity swap market, 

noting that financial entities are more likely to view swap dealing activity as a core business line 

than non-financial entities.57

5. IDI Exclusion 

The Preliminary Report considered how the IDI Exclusion impacted small to mid-sized 

banks.58 Specifically, staff requested comment on whether an expansion of the IDI Exclusion 

would be appropriate. Several commenters stated that the scope of the IDI Exclusion should be 

expanded to provide banks with greater flexibility, explaining that such changes would better 

align the IDI Exclusion with current lending practices.59

 

6. Impact of Capital and Margin Rules 

Several commenters indicated that any change in the current $8 billion de minimis 

exception threshold should not be considered until the Commission’s new capital and margin 

requirements are fully implemented.60 Specifically, commenters stated that market participants 

will not be able to fully assess the impact of swap dealer registration until the margin and/or 

 

55

 See letters from ABA, AGA, BOK, CEWG, CMC, EDFTNA, EEI, IECA, MELLC, NGSA, and Regions. 

56

 See letters from CEWG and EDFTNA. 

57

 See letter from CEWG. 

58

 See Preliminary Report at 43-47. 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. See 17 C.F.R. § 1.3(ggg)(5); 77 Fed. Reg. at 30620-24. 

59

 See letters from ABA, BOK, FSR, IIB, JBA, M&T, and Regions. 

60

 See letters from ABA, AIA, CEWG, CMC, IECA, IIB, ISDA/SIFMA, NGSA, and Regions. 
18

capital rules are implemented. Staff notes that the regulations regarding margin for uncleared 

swaps were adopted on January 6, 2016, subject to a phased-in compliance schedule beginning 

on September 1, 2016.61

 The Commission has not yet adopted final regulations for swap dealer 

capital requirements. 

III. Final Report – Findings and Discussion of Alternatives 

For the Final Report, staff analyzed an additional one-year period of data to provide a 

basis of comparison to the Preliminary Report. Given that notional data is available for IRS and 

CDS, staff reexamined potential dealing activity in those asset classes. Additionally, staff also 

reexamined Non-Financial Commodity swap data, although many of the same limitations noted 

in the Preliminary Report remain with respect to data for that asset class. 

A. Data Improvements 

The Commission and staff are continually working to improve the quality of the swap 

data to facilitate more robust analyses. Specifically, in December 2015, Commission staff issued 

for public comment the Draft Technical Specifications for Certain Swap Data Elements. The 

purpose of the draft technical specifications is to improve swap transaction data quality and 

determine what clarifications, modifications, and enhancements may also improve the usefulness 

of the swap data reported to the Commission. In June 2016, the Commission also finalized 

amendments related to the reporting of cleared swaps, which will improve staff’s ability to 

analyze SDR data.62

 

 

61

 See Margin Requirements for Uncleared Swaps for Swap Dealers and Major Swap Participants, 81 Fed. Reg. 

636 (Jan. 6, 2016). 

62

 See Amendments to Swap Data Recordkeeping and Reporting Requirements for Cleared Swaps, 81 Fed. Reg. 

41736 (June 27, 2016). 
19

Staff notes that some market participants are also improving the robustness of their SDR 

reporting. For example, with respect to IRS and CDS, approximately 7% of all transactions 

reported to SDRs lacked a valid LEI for one or both counterparties in the data reviewed for the 

Final Report, as compared to 14% during the Preliminary Report Review Period. The aggregate 

notional amount of transactions lacking a valid LEI in the data reviewed for the Final Report was 

approximately 5% of the total notional amount of IRS and CDS, as compared to approximately 

23% during the Preliminary Report Review Period. 

B. Final Report Data 

The Final Report analyzes swap activity in the IRS, CDS, and Non-Financial Commodity 

swap asset classes for the period of April 1, 2015 through March 31, 2016 (“Final Report 

Review Period”). Despite improvements to the Commission’s analytical tools, certain key data 

limitations that were cited in the Preliminary Report also affected the Final Report. Specifically, 

the SDR data lacked: (i) a reporting field to indicate whether a swap was entered into for dealing 

purposes; (ii) reliable notional data for Non-Financial Commodity swaps, FX Derivatives, and 

Equity swaps; and (iii) complete LEI and USI information. Accordingly, staff employed many 

of the same methodologies and assumptions that were described in the Preliminary Report to 

analyze data for purposes of the Final Report, including LEI and USI assumptions, entity-based 

assumptions, activity-based assumptions, and alternative dealing metrics (Counterparty and 

Transaction Counts). These assumptions were applied uniformly to each of the three asset 

classes analyzed. 

After applying those methodologies to the data for the Final Report Review Period, staff 

aggregated the notional IRS and CDS activity of affiliated entities to identify the approximate 

number of Potential Swap Dealing Entities that exceeded various notional thresholds. Because 
20

there continues to be a lack of reliable notional data for the Non-Financial Commodity swap 

asset class, staff performed an analysis using Counterparty and Transaction Counts. Staff found 

that the potential dealing activity in these asset classes appeared to be generally consistent with 

the findings in the Preliminary Report. Staff then performed additional analyses, described 

below, to assess how potential changes to the current $8 billion de minimis threshold might 

impact the swap markets. 

C. Final Report Findings 

1. Impact of Higher or Lower Gross Notional De Minimis Threshold 

Consistent with the findings in the Preliminary Report,63 Table 1 appears to indicate that 

only a substantial increase or decrease in the de minimis threshold would have a significant 

impact on the amount of IRS and CDS activity covered by swap dealer regulation, as measured 

by notional amount, transactions, or unique counterparties. As in the Preliminary Report, the 

analysis focuses on IRS and CDS because reliable notional data was not available for other asset 

classes. 

 

63

 See Preliminary Report at 48-51. 
21

Table 1 – IRS and CDS Potential Dealing Activity Covered by Notional Amount 

Gross 

Notional 

Amount of 

IRS/CDS

(USD 

Billions) 

Greater 

than

Potential 

Swap 

Dealing 

Entities

Total Notional 

Amount

(USD Billions) Transactions

Unique 

Counterparties

Total

Amount

Change 

from $8 

Billion 

Level

Total

Number

Change 

from $8 

Billion 

Level 

Total

Number

Change 

from $8 

Billion 

Level

1 410 146,532 666 1,203,628 15,294 23,862 1,608

3 229 146,231 365 1,195,872 7,538 23,075 821

8 145 145,866 N/A 1,188,334 N/A 22,254 N/A

15 111 145,526 -340 1,181,986 -6,348 22,110 -144

100 62 143,770 -2,096 1,153,568 -34,766 19,673 -2,581

Table 1 indicates that if the de minimis threshold was lowered to $3 billion, 

approximately 84 additional entities trading in IRS and CDS might have to register as swap 

dealers. However, at that level, less than 1% of additional notional activity and swap 

transactions and less than 4% of additional unique counterparties would potentially be covered 

by swap dealer regulation, as compared to the $8 billion level, thereby providing insignificant 

additional regulatory coverage if the threshold were lowered to $3 billion. Similarly, at the $15 

billion level, approximately 34 fewer entities trading in IRS and CDS might need to register as 

swap dealers, resulting in a decrease in coverage of less than 1% for notional activity, swap 

transactions, and unique counterparties, as compared to the $8 billion level. However, as 

discussed above, 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. 

2. Impact of the Current $8 Billion Threshold in Each Asset Class 

For the Final Report, staff also reexamined the data to determine if there appeared to be 

disparate regulatory coverage across the asset classes at the current $8 billion single gross 

notional de minimis threshold. As Table 2 indicates, the substantial majority of all swaps 
22

involved at least one registered swap dealer. Table 2 also demonstrates that the gap in 

regulatory coverage between the IRS and CDS asset classes and the Non-Financial Commodity 

asset class appears to be smaller during the Final Report Review Period. Staff notes that this 

data reflects the amount of total swaps that were subject to swap dealer regulation and does not 

identify the amount of potential swap dealing transactions that were subject to regulation. 

Table 2 – Percentage of Swaps Involving One or More Registered Swap Dealers 

IRS CDS

Non-Financial 

Commodity Swaps

Preliminary Report 

Review Period64 >95% >95% 78%

Final Report Review 

Period 98% 99% 89%

Further, Tables 3 and 4 below demonstrate that during the Final Report Review Period, 

Potential Swap Dealing Entities with high Counterparty and Transaction Counts in the IRS, 

CDS, and Non-Financial Commodity swap asset classes continued to have similar registration 

rates as compared to the Preliminary Report Review Period. 

Table 3 – Percentage of Potential Swap Dealing Entities Registered 

(Greater Than 50 Counterparties) 

IRS65 CDS

Non-Financial 

Commodity

Preliminary Report 

Review Period66 75% 100% 74%

Final Report Review 

Period 74% 100% 76%

 

64

 See Preliminary Report at 51. 

65 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. These data points exceed 90% 

if these entities are excluded. 

66

 See Preliminary Report at 52. 
23

Table 4 – Percentage of Potential Swap Dealing Entities Registered 

(Greater Than 10,000 Transactions) 

IRS CDS

Non-Financial 

Commodity

Preliminary Report 

Review Period67 89% 100% 68%

Final Report Review 

Period 89% 100% 60%

D. Discussion of De Minimis Exception Alternatives 

In light of the data analyses in the Preliminary and Final Reports, the following 

alternatives are discussed below: (i) a higher or lower notional de minimis threshold; (ii) the 

exclusion of swaps that are traded on a registered or exempted SEF or DCM and/or cleared from 

an entity’s de minimis calculation; (iii) 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; and (iv) a notional de minimis threshold specific to each asset 

class. 

1. Higher or Lower Gross Notional De Minimis Threshold 

The Preliminary and Final Report analyses 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 discussed above, at the 

$8 billion threshold, a substantial majority of swap transactions – approximately 98%, 99%, and 

89% in the IRS, CDS, and Non-Financial Commodity swap asset classes, respectively – involved 

at least one registered swap dealer during the Final Report Review Period.68 Additionally, the 

Final Report analysis indicates that, in the IRS and CDS asset classes, less than 1% of additional 

notional activity and swap transactions, and less than 4% of additional counterparties would be 

 

67

 See id. 

68 Additionally, during the Preliminary Report Review Period, approximately 90% and 93% of FX Derivatives 

and Equity swaps, respectively, involved a registered swap dealer. See Preliminary Repot at 51. 
24

covered by swap dealer regulation at a $3 billion threshold, as compared to the $8 billion 

threshold.69 

As discussed in the swap dealer definition rulemaking, “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.”70

 Further, the Commission stated that 

“exclud[ing] entities whose dealing activity is sufficiently modest in light of the total size, 

concentration and other attributes of the applicable markets can be useful in avoiding the 

imposition of regulatory burdens on those entities for which dealer regulation would not be 

expected to contribute significantly to advancing the customer protection, market efficiency and 

transparency objectives of dealer regulation.”

71

 While many commenters expressed support for 

maintaining the $8 billion threshold, some expressed support for lowering it, particularly as it 

applies to the Non-Financial Commodity asset class. 

Staff also notes that the de minimis exception level established by the SEC for securitybased swap dealer registration is $3 billion for security-based credit default swaps.72

 Similar to 

the CFTC’s approach, the SEC’s de minimis exception is subject to a phase-in level of $8 billion 

and the phase-in period ends five years after relevant security-based swap data collection begins 

unless the SEC takes further action. SEC staff is also directed to issue a report on its de minimis

 

69 Similarly, during the Preliminary Report Review Period, less than 2% of additional IRS and CDS activity would 

be covered by swap dealer regulation at the $3 billion threshold. 

70 77 Fed. Reg. at 30628. 

71

 Id. at 30629-30.

72 17 C.F.R. § 240.3a71-2(a)(1). With respect to all other types of security-based swaps, the threshold is $150 

million with a $400 million phase-in level. 
25

exception during that period.73 The SEC has not yet begun to register security-based swap 

dealers or to collect data on security-based swaps. 

Based on the existing data and comments received, the Commission may want to 

consider whether to set the de minimis notional threshold at its current $8 billion level, allow the 

threshold to fall to $3 billion as scheduled, or delay the reduction of the de minimis threshold 

while the Commission continues its efforts to improve data quality so that it can better determine 

the appropriate de minimis threshold level. 

2. 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. While the 

comments received on this alternative generally expressed support, as of the date of this report, 

the staff has not had sufficient time to evaluate the effectiveness of clearing mandates, margin 

requirements on uncleared swaps, and capital requirements in connection with the oversight of 

swap dealers, all of which may impact the implementation of the exclusion. Accordingly, after 

further study the Commission may want to consider in the future whether to exclude swaps that 

are traded on a SEF or DCM and/or cleared from an entity’s swap dealing activity. 

3. Multi-Factor De Minimis Threshold 

Further, staff considered whether the Commission should establish a multi-factor de 

minimis threshold that could include Counterparty and/or Transaction Counts. Most of the 

comments were opposed to this approach, although two were in favor. Based on the analysis in 

the Preliminary Report, the Commission may want to consider maintaining a single de minimis

threshold based on notional amounts. 

 

73

 See 17 C.F.R. § 240.3a71-2(a)(2)(ii); 17 C.F.R. § 240.3a71-2A. 
26

4. Different De Minimis Notional Thresholds by Asset Class 

The Preliminary Report analyzed the percentage of swaps involving at least one 

registered swap dealer to determine the extent to which swap activity for each asset class was 

subject to swap dealer regulation at the current de minimis threshold. As discussed above, the 

data analyzed for the Final Report demonstrates that the substantial majority of transactions in 

each asset class involved one registered swap dealer. Additionally, the gap in regulatory 

coverage between the IRS and CDS asset classes and the Non-Financial Commodity asset class 

appears to be smaller during the Final Report Review Period. However, as noted earlier, the data 

for the Non-Financial Commodity asset class is not as robust as the IRS and CDS data. 

Accordingly, the Commission may want to consider maintaining the current single gross notional 

de minimis exception rather than adopting an asset class-specific approach, or consider the classspecific approach in the future as data quality improves.

IV. Key Issues for Commission Consideration 

Given the focus of the comments and the timing issues for market participants associated 

with changes to the de minimis exception, the Commission may want to consider the following: 

1) Regarding the de minimis notional threshold, whether to: (i) set it at the current $8 

billion dollar level; (ii) allow the threshold to fall to $3 billion as scheduled; or (iii) 

delay the reduction of the de minimis threshold while the Commission continues its 

efforts to improve data quality so that it can better determine the appropriate de 

minimis threshold level. 

2) Whether to consider, in the future, excluding swaps that are traded on a SEF or DCM 

and/or cleared from an entity’s de minimis calculation. 
27

3) Requesting staff to obtain further information to continue to assess the IDI Exclusion 

to determine whether its conditions are overly restrictive.