SIFMA AMG Submits Comments to CFTC on Cross-Border Phase-In Exemptive Order and Final Interpretive Guidance

The Asset Management Group of SIFMA provided comments to the CFTC on the recent CFTC guidance and exemptive order relating to cross-border swap activities. The SIFMA letter, among other things:

  • asks for additional time to comply with the “U.S. person” definition (until December 21, 2013 for assessment and identification and March 31, 2014 for compliance);
  • seeks an explicit recognition by the CFTC that asset managers have the discretion to determine in good faith, based on the facts and circumstances that they deem most relevant, whether a fund’s principal place of business is in the U.S.;
  • asks for clarification that funds that are publicly offered or privately offered to only non-U.S. persons should categorically be non-U.S. persons; and
  • requests substitute compliance to be available for all entities, including funds and other asset management clients.

Lofchie Comment:  Adoption of SIFMA’s recommendations would go a long way towards addressing the ambiguities present in the CFTC guidance – particularly as to the difficulties for determining the status of entities run by asset managers operating across borders and with investors from numerous locations.

See: SIFMA AMG Comment Letter; SIFMA Press Release.
See also: Industry Groups Submit Critical Comments on CFTC Cross-Border Guidance (August 14, 2013); CFTC Posts “Cross-Border Guidance” and “Cross-Border Exemptive Order” for Swaps (July 16, 2013).