CFTC Withdraws “ANE” Staff Advisory and Issues New Cross-Border No-Action Relief

Washington, DC (STL.News) In conjunction with the Commission’s approval of the final cross-border rule today, the Divisions of Swap Dealer and Intermediary Oversight (DSIO), Clearing and Risk (DCR), and Market Oversight (DMO) today withdrew a staff advisory and no-action relief regarding certain cross-border situations and issued new no-action relief.

Specifically, the Divisions took the following actions in response to public comments to the rulemaking:

  • DSIO has withdrawn CFTC Staff Advisory 13-69, relating to swaps between a non-U.S swap dealer and counterparties that are not U.S. persons where the non-U.S. swap dealer uses personnel or agents located in the U.S. to “arrange, negotiate, or execute” the swaps (ANE Transactions);
  • The Divisions have withdrawn CFTC Staff Letter 17-36, which provided no-action relief related to Staff Advisory 13-69; and
  • The Divisions have issued a no-action letter that provides relief to non-U.S. swap dealers from Transaction-Level Requirements (TLRs) for ANE Transactions, to the extent those TLRs are not addressed in the final rule.  This relief will apply only until the CFTC addresses whether a particular unaddressed TLR is or is not applicable to such transactions.

The final cross-border rule states that until the CFTC issues future cross-border rulemakings relating to unaddressed TLRs, the CFTC will not consider, as a matter of policy, a non-U.S. swap dealer’s use of their personnel or agents located in the U.S. to “arrange, negotiate, or execute” swap transactions with non-U.S. counterparties in determining whether such requirements apply to such transactions.