IIB Files Comments on CFTC Cross-Border Exemptive Order

The IIB has submitted a comment letter to the CFTC regarding the July cross-border Exemptive Order and the Interpretive Guidance and Policy Statement.  The letter seeks transitional relief beyond that contained in the order, identifying four key areas that transitional relief was not provided under the Exemptive Order, but for which the IIB sees relief as necessary: (i) the bona fide “foreign branch” test, (ii) guidance regarding U.S. branches of non-U.S. swap dealers and MSPs, (iii) large trader reporting, and (iv) the application of legal entity identifier recordkeeping requirements to certain non-U.S. swap dealers and MSPs. 

The IIB also seeks clarification with respect to “the prospective nature of the Final Guidance,” requesting confirmation regarding: (i) the application of the new “U.S. person” definition to existing funds, and (ii) changes to the MSP threshold calculations. 

Lofchie Comment:  IIB’s request for delay and clarification illustrates why it was inappropriate for the CFTC to issue the Final Guidance without going through an ordinary administrative rulemaking process where ambiguities in the guidance that is supposedly not a rule could have been addressed.

See:  IIB Comment Letter.