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  • Dissenting Statement Of CFTC Commissioner Dan M. Berkovitz On The Final Rule For Cross-Border Swap Activity Of Swap Dealers And Major Swap Participants

    Date 23/07/2020

    Introduction

    I dissent from today’s final cross-border swap rulemaking (the “Final Rule”).  As described by the Chairman, this Final Rule will “pare[] back our extraterritorial application of our swap dealer regime.”[1]  Over the past seven years, the current cross-border regime has helped protect the U.S. financial system from risky overseas swap activity.  The Commission should not be paring back these protections for the American financial system, particularly now, during a global pandemic.


  • Statement Of CFTC Commissioner Dawn D. Stump Regarding Final Rule: Cross-Border Application Of The Registration Thresholds And Certain Requirements Applicable To Swap Dealers And Major Swap Participants

    Date 23/07/2020

    Overview

    When we met together in person late last year to consider proposing cross-border rules with respect to registration thresholds and regulatory requirements applicable to swap dealers and major swap participants (the “Proposal”),[1] I stressed that because we were proposing to replace the Commission’s 2013 cross-border guidance (the “Guidance”)[2] with binding and enforceable rules, those rules must be clear, sensible, and workable.[3]  In supporting the Proposal at the time, I concluded that the proposed rules met those standards.  And I have not seen anything in the many thoughtful comment letters we received that causes me to doubt that conclusion.   

  • Dissenting Statement Of Commissioner Rostin Behnam Regarding The Cross-Border Application Of The Registration Thresholds And Certain Requirements Applicable To SDs And MSPs – Final Rule

    Date 23/07/2020

    Introduction and Overview

    Today, by approving a final rule addressing the cross-border application of the registration thresholds and certain requirements applicable to swap dealers (“SDs”) and major swap participants (“MSPs”) (the “Final Rule”), the Commodity Futures Trading Commission (“CFTC” or “Commission”) overlooks Dodd-Frank Act purposes, Congressional mandates thereunder, an opinion of the D.C. District Court, and multiple comments raising significant concerns.  The Commission instead relies on broad deference that opens a gaping hole in the federal regulatory structure.  I cannot support a decision to jettison a cross-border regime that has not proven unreasonable, inflexible, or ineffective in favor of an approach that fails to address the most critical concerns that the Dodd-Frank Act directed the CFTC to address in favor of “more workable” solutions.  As the Final Rule opts to address the conflicts of economic interest between the regulated and those who are advantaged by it by usurping Congressional (and congressionally delegated) authority to rethink section 2(i) of the Commodity Exchange Act (“CEA” or “Act”) via prescriptive rules, I must respectfully dissent.

  • Supporting Statement Of CFTC Commissioner Brian Quintenz Regarding The Cross-Border Application Of The Registration Thresholds And Certain Requirements Applicable To SDs And MSPs – Final Rule

    Date 23/07/2020

    I am very pleased to support today’s final rule interpreting Congress’ statutory directive that the Commission may only regulate those foreign activities that “have a direct and significant connection with activities in, or effect on commerce, of the United States.”  As I noted when I supported the proposal last December, Congress deliberately placed a clear and strong limitation on the CFTC’s extraterritorial reach, recognizing the need for international comity and deference in a global swaps market.  Today’s rule provides important safeguards to the US financial markets in delineating which cross-border swap activity must be counted towards potential registration with the Commission, and which transactions should be subject to the CFTC’s business conduct requirements for swap dealers (SDs) and major swap participants (MSPs).  At the same time, the final rule appropriately defers to foreign regulatory regimes to avoid duplicative regulation and disadvantaging U.S. institutions acting in foreign markets.

  • Statement Of CFTC Chairman Heath P. Tarbert In Support Of Final Cross-Border Swap Rule

    Date 23/07/2020

    President John Adams once warned: “Great is the guilt of unnecessary war.” While he was obviously referring to military conflicts, his admonition applies to conflicts among nations more generally. Financial regulation has not been exempt from international discord. 

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