United States: House Passes CFTC Reauthorization Act

Last Updated: January 20 2017
Article by Steven D. Lofchie

Most Read Contributor in United States, September 2017

The House of Representatives approved the Commodity End-User Relief Act (H.R. 238). Approved by a 239 to 182 vote, the Act would reauthorize the CFTC with an appropriation of $250,000,000 for fiscal years 2017 through 2021. The purpose of the Act is "to better protect futures customers, to provide end users with market certainty, to make basic reforms to ensure transparency and accountability at the Commission, to help farmers, ranchers, and end users manage risks [and] to help keep consumer costs low."

The Act would modify existing CFTC regulations by:

  • requiring (rather than merely permitting) the CFTC to recognize bona fide hedging transactions, and by providing additional specificity regarding what constitutes such a transaction, as part of the exemption from position limit requirements (Section 311);
  • providing guidance on the application of the commercial user exemption to swaps with affiliates (Section 301);
  • limiting the extent to which utilities that use swaps to hedge may be treated as "special entities" (Sections 303-306);
  • exempting end users from a number of Dodd-Frank Act requirements, particularly by removing forward contracts that relate to physical commodity deliveries and/or that have volumetric optionality from the definition of the term "swap" (Section 309);
  • delaying the trade reporting of swaps in illiquid markets (Section 307);
  • requiring the CFTC to perform a cost-benefit analysis of its rule proposals (Section 202);
  • directing the CFTC to issue a rule that defines when firms engaged in cross-border activities may be exempted from U.S. rules (Section 313);
  • granting futures commission merchants ("FCMs") a full business day after a trade execution to meet residual interest requirements (Section 104);
  • permanently establishing the de minimis swap dealer threshold at $8 billion, which can be changed only through formal CFTC rulemaking (Section 310);
  • modifying several procedural requirements through measures such as requiring (i) a public comment and notice period for CFTC statements and guidance, and (ii) the establishment by the CFTC of internal staff procedures concerning the issuance of exemptive, no-action or interpretive letters to the public (Section 205); and
  • requiring that property of the bankruptcy estate of a commodity broker be included in "customer property" to the extent that such property is insufficient to satisfy the net equity claims of the broker's public customers (thus reversing the decision of In re Griffin Trading Co., 245 B.R. 291 (Bkt. Ct. N.D. Ill. 2000)) (Section 105).

Commentary/ Steven Lofchie

The Commodity End-User Relief Act fixes a number of serious problems including the difficulty of utilities' search for swap counterparties; the need to trade-report illiquid positions; and the drop in the de minimis amount. One provision that could be interpreted as increasing risk is the treatment of residual interest, but the relevant provision will lower the costs of operating as an FCM materially (which is a very good thing considering the number of FCMs that have gone out of business since Dodd-Frank). Additionally, the proposal benefits the credit positions of customers materially, since Section 105 allows any customer of an FCM who is not fully reimbursed to go after all of the proprietary assets of the FCM.

Many of the provisions of the Act are reactions to the procedural laxity permitted under Democratic leadership, particularly the CFTC's adoption of cross-border "guidance," a procedural bypass which should have been recognized as a material violation of the Administrative Procedures Act, the District Court's opinion to the contrary, notwithstanding. (See D.C. District Court Issues Opinion on SIFMA v. CFTC Cross-Border Guidance Case (with Lofchie and Zwirb Comments).)

It is unfortunate that this bill was adopted in the House along strict party lines. The bill is far from a repeal of Dodd-Frank. It is a thoughtful fix for a number of problems that were considered to be serious by a wide consensus. Opponents should go through the comparatively slender document and indicate which sections they oppose and why. Perhaps compromises can be reached concerning certain provisions. Perhaps, for example, the trade reporting delay on illiquid positions should be shortened. Perhaps the CFTC should be given more time to adopt a cross-border rule. Otherwise, the Democrats' party-line vote seems merely reactionary. Must the trade reporting of illiquid swaps, or the mere appointment of the next CFTC Chief Economist, be a cause for a Republican/Democrat divide?

By the way, a very similar version of this bill was proposed last year. (See House Approves Bill to Reauthorize CFTC and Amend the Commodity Exchange Act (with Lofchie and Zwirb Comments); and House Agriculture Committee Passes Bill to Reauthorize CFTC and Amend CEA (with Patel and Lofchie Comments).)

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.