Public Statements & Remarks

Supporting Statement of Commissioner Summer K. Mersinger on Proposed Rulemaking to Codify Staff Relief

December 15, 2023

I am pleased to support the Commission’s notice of proposed rulemaking (“NPRM”) to codify in the agency’s rules previously-issued Staff relief regarding capital and financial reporting requirements for registered swap dealers (“SDs”).[1]

Staff relief such as no-action and interpretative letters[2] are useful tools in appropriate circumstances.  But when there is an issue or problem with our rules, a notice-and-comment rulemaking process is the gold standard.  On several occasions when no-action relief has been repeatedly extended over lengthy periods of time, I have encouraged the Commission to instead undertake rulemaking to hear from stakeholders, craft solutions, and provide certainty.[3]

Here, during the course of implementing the Commission’s rules imposing minimum capital requirements and financial reporting obligations on SDs,[4] our Staff received several inquiries about the application of the rules from market participants seeking to come into compliance.  This was not surprising, given the complexity of these rules and the efforts to harmonize them with requirements being imposed by prudential bank regulators and the SEC.

In response, Staff issued several no-action and interpretative letters, and today, the Commission is proposing to codify parts of two of them into our rulebook.[5] In addition, based on experience implementing the SD capital and financial reporting rules, the Commission also is proposing other amendments intended to provide technical and clarifying changes to effectuate the purposes of the rules.

I commend the Staff of our Market Participants Division for issuing appropriate no-action and interpretative letters when it was necessary to address legitimate inquiries raised by market participants, and for preparing this proposal to make portions of those letters a permanent part of our rule set.  I look forward to public comment on whether we have gotten these proposed amendments right.

[1]  The NPRM also applies to registered major swap participants.  For convenience, since there currently are no registered major swap participants, this Statement will refer only to SDs.

[2]  See generally, CFTC Rule 140.99, 17 C.F.R. § 140.99 (providing for the issuance by agency Staff of exemptive, no-action, and interpretative letters).

[3]  See, e.g., Statement of Commissioner Summer K. Mersinger on Revision and Extension of Staff No-Action Positions for Swaps Intended to be Cleared (February 2, 2023) (listing previous Statements at n.3), available at

[4]  Capital Requirements of Swap Dealers and Major Swap Participants, 85 Fed. Reg. 57462 (Sept. 15, 2020).

[5]  CFTC Letter No. 21-15 (June 29, 2021), available at CFTC Staff Letters | CFTC; and CFTC Letter No. 21-18 (August 31, 2021), extended by CFTC Letter No. 23-11 (July 10, 2023), both available at CFTC Staff Letters | CFTC.