October 12, 2012

CFTC Office of General Counsel Issues Interpretative and No-Action Letter Regarding Eligible Contract Participant Issues

Washington, DC — The Commodity Futures Trading Commission’s Office of General Counsel (OGC) today issued an interpretative and no action letter regarding Eligible Contract Participant issues.

The letter provides interpretations stating that swap guarantors generally must be ECPs, a non-ECP generally may not be jointly and severally liable for swap obligations, and cash proceeds from a loan may be included within the calculation of total assets for purposes of qualifying as an ECP under Commodity Exchange Act. The letter also provides no-action relief, subject to specified conditions, with respect to certain ECP guarantee arrangements, “anticipatory ECPs,” and certain determinations regarding “amounts invested on a discretionary basis.”

The interpretations and no-action positions contained in the letter are effective immediately, provided that:

• subject to certain conditions, during the period commencing October 12, 2012 and ending March 31, 2013, OGC will not recommend an enforcement action based on OGC's interpretation that swap guarantors generally must be ECPs; and
• subject to certain conditions, during the period commencing October 12, 2012 and ending December 31, 2012, OGC also will not recommend an enforcement action against a person for relying on the pre-Dodd-Frank Act ECP definition or the Second Effective Date Extension Order.

Last Updated: October 12, 2012