CFTC Seeks Extension for Critical Derivatives Clearing Documentation Requirements Under Dodd-Frank Act

On October 22, 2026, the Commodity Futures Trading Commission (CFTC) published a notice in the Federal Register announcing that it has forwarded an Information Collection Request (ICR) to the Office of Information and Regulatory Affairs (OIRA) at the Office of Management and Budget (OMB) for review. This ICR seeks an extension of a currently approved information collection, identified as OMB Control No. 3038-0092, pertaining to customer clearing documentation and the timing of trade acceptance for clearing within the derivatives markets. The public has until November 23, 2026, to submit comments on this proposed extension.

Legislative Mandates for Transparency and Risk Mitigation

The information collection under review stems directly from mandates established by the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act), which amended the Commodity Exchange Act (CEA). These legislative provisions were designed to enhance market integrity, reduce systemic risk, and promote fair access within the derivatives clearing ecosystem.

Specifically, Section 4d(c) of the CEA directs the CFTC to require futures commission merchants (FCMs) to implement conflict of interest procedures. Similarly, Section 4s(j)(5) of the CEA imposes similar requirements on swap dealers (SDs) and major swap participants (MSPs), further mandating that these entities establish informational partitions to separate personnel involved in clearing activities from those whose judgment might be biased. This separation is intended to uphold the core principle of open access to clearing services.

Furthermore, Section 4s(j)(6) of the CEA prohibits SDs and MSPs from engaging in practices that create unreasonable restraints on trade or impose anticompetitive burdens, unless such actions are necessary to fulfill the purposes of the CEA. Complementing these requirements, Section 2(h)(1)(B)(ii) of the CEA stipulates that derivatives clearing organization (DCO) rules must ensure the nondiscriminatory clearing of swaps, regardless of whether they were executed bilaterally or through an unaffiliated trading facility.

CFTC Regulatory Framework for Clearing Practices

In response to these statutory directives, the CFTC promulgated specific regulations that govern the conduct of FCMs, SDs, MSPs, and DCOs. These regulations prohibit various arrangements that could undermine fair competition or market transparency. Prohibited practices include:

• Disclosing a customer's original executing counterparty to an FCM, SD, or MSP.
• Limiting the number of counterparties with whom a customer can trade.
• Restricting the size of a customer's position with any individual counterparty, beyond an overall credit limit.
• Impairing a customer's access to trade execution on terms reasonably related to the best available terms.
• Preventing compliance with specified timeframes for accepting trades into clearing.

To ensure efficient trade processing, Regulation 39.12(b)(7)(i)(B) requires DCOs to coordinate with their clearing members. Concurrently, Regulations 1.74(a) and 23.610(a) impose reciprocal coordination obligations on FCMs, SDs, and MSPs that act as clearing members. These rules collectively aim to streamline the clearing process and reduce operational friction.

Under these regulations, all regulated entities--SDs, MSPs, FCMs, and DCOs--are required to develop and maintain written customer clearing documentation and comprehensive trade processing procedures. The CFTC views the maintenance of these contracts, policies, and procedures as essential for prudent business practice and critical for effective risk management and the efficient operation of trading venues.

Information Collection Burden and Public Comment Process

The primary burden associated with this information collection is limited to the costs incurred by registrants in maintaining records related to clearing documentation between customers and their clearing members, as well as trade processing procedures between DCOs and their clearing members. These recordkeeping obligations are integral to the implementation of the CEA's provisions, ensuring robust risk management and operational efficiency across the derivatives markets.

The CFTC estimates that 204 respondents are affected by these requirements, with an estimated average burden of 40 hours per respondent annually, totaling 8,160 annual burden hours. The frequency of collection is described as