On November 13, 2018, the CFTC published its Final Rule (Final Rule) setting its de minimis exception threshold to swap dealer registration and regulation requirements at an aggregate gross notional amount (“AGNA”) threshold of $8 billion in swap dealing activity.

Under the de minimis exception as originally adopted, a person would not be deemed to be a swap dealer (and thus subject to registration and regulation as such) unless its swap dealing activity exceeded an AGNA threshold of $3 billion measured over the prior 12-month period. An initial phase-in AGNA threshold was set at $8 billion. The expiration of the phase-in period, originally set for December 31, 2017, was extended twice, and was set to finally expire on December 31, 2019. The Final Rule is effective as of November 13, 2018, and permanently sets the threshold at the higher $8 billion amount.

The Final Rule does not address other matters or potential changes to the de minimis exception. For example, the Final Rule does not address whether to provide exceptions for exchange-traded swaps, cleared swaps, or non-deliverable forwards from the de minimis calculation.

The CFTC advised it did not want to delay action on finalizing the de minimis exception in order to address any of these additional topics, which remain under staff consideration pending further CFTC action.