Revisions to Business Conduct and Swap Documentation Requirements for Swap Dealers and Major Swap Participants; Correction

COMMODITY FUTURES TRADING COMMISSION 17 CFR Part 23 RIN 3038–AF38 Revisions to Business Conduct and Swap Documentation Requirements for Swap Dealers and Major Swap Participants; Correction AGENCY: Commodity Futures Trading Commission. ACTION: Correcting amendment. SUMMARY: The Commodity Futures Trading Commission (CFTC or Commission) is correcting a final rule published in the Federal Register on December 30, 2025. The final rule amended certain of the Commission’s business conduct and documentation requirements applicable to swap dealers and major swap participants. This correction rectifies a technical error that would otherwise result in the unintended removal of an appendix to the Commission’s regulations that was not meant to be altered by the final rule. DATES: Effective on January 29, 2026. FOR FURTHER INFORMATION CONTACT:
Jacob Chachkin, Associate Director, 202–418–5496, jchachkin@cftc.gov; or Dina Moussa, Special Counsel, 202– 418–5696, dmoussa@cftc.gov, Market Participants Division, Commodity Futures Trading Commission, Three Lafayette Centre, 1155 21st Street NW, Washington, DC 20581. SUPPLEMENTARY INFORMATION: On December 30, 2025, the Commission published in the Federal Register (90 FR 61226) a final rule (the ‘‘Final Rule’’) amending certain of the Commission’s business conduct and documentation requirements applicable to swap dealers and major swap participants. The Final Rule is effective January 29, 2026. The amendments consisted chiefly of a revision of the regulatory text of subpart H of 17 CFR part 23 in its entirety (see 90 FR 61252, amendatory instruction 2). There is also an appendix A to subpart H, ‘‘Guidance on the Application of §§ 23.434 and 23.440 for Swap Dealers That Make Recommendations to Counterparties or Special Entities.’’ This
appendix has been present in the
Commission’s rules from the time that subpart H was added to part 23 in 2012 (see 77 FR 9734, Feb. 17, 2012). The Final Rule was not intended to alter
appendix A to subpart H in any way.
Accordingly, no reference to appendix A or its contents was included in the amendments to the regulatory text of subpart H or the table of contents thereto, as presented in the Final Rule. As a technical codification matter, because the Final Rule amendments are presented as revising subpart H as a whole, without an explicit instruction to retain appendix A to the subpart unchanged, the appendix will be

1 5 U.S.C. 553(b)(3)(B). Section 553 of the Administrative Procedure Act (‘‘APA’’) generally requires an agency to publish notice of a rulemaking in the Federal Register and provide an opportunity for public comment. This requirement does not apply, however, if the agency ‘‘for good cause finds . . . that notice and public procedure are impracticable, unnecessary, or contrary to the public interest. For the same reason stated above, the Commission finds that there is good cause to make the rule effective on January 29, 2026 pursuant to section 553(d) of the APA, 5 U.S.C. 553(d) (requiring publication of a rule no less than 30 days before its effective date unless the agency finds good cause for making the rule effective sooner). removed from the Code of Federal Regulations (CFR) when the amendments are incorporated. Such an outcome would be unintended and erroneous. The lack of an instruction in the Final Rule specifying that appendix A to subpart H should be retained in the CFR was an inadvertent technical oversight. To remedy this technical error, this correcting amendment sets forth the contents of appendix A to subpart H of 17 CFR part 23, as they exist currently, prior to the effectiveness of the Final Rule, with an instruction that the
appendix be added back to the subpart.
Presentation of this correction as an addition of the appendix is necessary due to the technical mechanics of the CFR codification process. Nonetheless, and for the avoidance of doubt, this correcting amendment makes no changes to the contents of appendix A. Because the correcting amendment does not make any changes or otherwise impose any new substantive regulatory requirements, pre-publication public comment period is unnecessary.1 List of Subjects in 17 CFR Part 23 Reporting and recordkeeping requirements, Swaps, Trading records. Accordingly, 17 CFR part 23 is corrected by making the following correcting amendment:
PART 23—SWAP DEALERS AND
MAJOR SWAP PARTICIPANTS

• 1. The authority citation for part 23
     continues to read as follows:
     Authority: 7 U.S.C. 1a, 2, 6, 6a, 6b, 6b–1, 6c, 6p, 6r, 6s, 6t, 9, 9a, 12, 12a, 13b, 13c, 16a, 18, 19, 21.
     Section 23.160 also issued under 7 U.S.C.
     2(i); Sec. 721(b), Pub. L. 111–203, 124 Stat. 1641 (2010).
• 2. Add appendix A to subpart H to
     read as follows:
     Appendix A to Subpart H of Part 23—
     Guidance on the Application of §§ 23.434 and 23.440 for Swap Dealers That Make Recommendations to Counterparties or Special Entities The following provides guidance on the application of §§ 23.434 and 23.440 to swap dealers that make recommendations to counterparties or Special Entities.
     Section 23.434—Recommendations to
     Counterparties—Institutional Suitability A swap dealer that recommends a swap or trading strategy involving a swap to a counterparty, other than a swap dealer, major swap participant, security-based swap dealer or major security-based swap participant, must undertake reasonable diligence to understand the potential risks and rewards associated with the recommended swap or trading strategy involving a swap—general suitability (§ 23.434(a)(1))—and have a reasonable basis to believe that the recommended swap or trading strategy involving a swap is suitable for the counterparty—specific suitability (§ 23.434(a)(2)). To satisfy the general suitability obligation, a swap dealer must undertake reasonable diligence that will vary depending on, among other things, the complexity of and risks associated with the swap or swap trading strategy and the swap dealer’s familiarity with the swap or swap trading strategy. At a minimum, a swap dealer’s reasonable diligence must provide it with an understanding of the potential risks and rewards associated with the recommended swap or swap trading strategy. Recommendation. Whether a communication between a swap dealer and a counterparty is a recommendation will turn on the facts and circumstances of the particular situation. There are, however, certain factors the Commission will consider in reaching such a determination. The facts and circumstances determination of whether a communication is a ‘‘recommendation’’ requires an analysis of the content, context, and presentation of the particular communication or set of communications. The determination of whether a ‘‘recommendation’’ has been made, moreover, is an objective rather than a subjective inquiry. An important factor in this regard is whether, given its content, context, and manner of presentation, a particular communication from a swap dealer to a counterparty reasonably would be viewed as a ‘‘call to action,’’ or suggestion that the counterparty enter into a swap. An analysis of the content, context, and manner of presentation of a communication requires examination of the underlying substantive information transmitted to the counterparty and consideration of any other facts and circumstances, such as any accompanying explanatory message from the swap dealer. Additionally, the more individually tailored the communication to a specific counterparty or a targeted group of counterparties about a swap, group of swaps or trading strategy involving the use of a swap, the greater the likelihood that the communication may be viewed as a ‘‘recommendation.’’ Safe harbor. A swap dealer may satisfy the safe harbor requirements of § 23.434(b) to fulfill its counterparty-specific suitability duty under § 23.434(a)(2) if: (1) The swap dealer reasonably determines that the counterparty, or an agent to which the counterparty has delegated decision-making authority, is capable of independently evaluating investment risks with regard to the relevant swap or trading strategy
     involving a swap; (2) the counterparty or its agent represents in writing that it is exercising independent judgment in evaluating the recommendations of the swap dealer; (3) the swap dealer discloses in writing that it is acting in its capacity as a counterparty and is not undertaking to assess the suitability of the recommendation; and (4) in the case of a counterparty that is a Special Entity, the swap dealer complies with § 23.440 where the recommendation would cause the swap dealer to act as an advisor to a Special Entity within the meaning of § 23.440(a). To reasonably determine that the counterparty, or an agent to which the counterparty has delegated decision-making authority, is capable of independently evaluating investment risks of a recommendation, the swap dealer can rely on the written representations of the counterparty, as provided in § 23.434(c).
     Section 23.434(c)(1) provides that a swap
     dealer will satisfy § 23.434(b)(1)’s requirement with respect to a counterparty other than a Special Entity if it receives representations that the counterparty has complied in good faith with the counterparty’s policies and procedures that are reasonably designed to ensure that the persons responsible for evaluating the recommendation and making trading decisions on behalf of the counterparty are capable of doing so. Section § 23.434(c)(2) provides that a swap dealer will satisfy § 23.434(b)(1)’s requirement with respect to a Special Entity if it receives representations that satisfy the terms of § 23.450(d) regarding a Special Entity’s qualified independent representative. Prong (4) of the safe harbor clarifies that § 23.434’s application is broader than § 23.440—Requirements for Swap Dealers Acting as Advisors to Special Entities.
     Section 23.434 is triggered when a swap
     dealer recommends any swap or trading strategy that involves a swap to any counterparty. However, § 23.440 is limited to a swap dealer’s recommendations (1) to a Special Entity (2) of swaps that are tailored to the particular needs or characteristics of the Special Entity. Thus, a swap dealer that recommends a swap to a Special Entity that is tailored to the particular needs or characteristics of the Special Entity may comply with its suitability obligation by satisfying the safe harbor in § 23.434(b); however, the swap dealer must also comply with § 23.440 in such circumstances.
     Section 23.440—Requirements for Swap
     Dealers Acting as Advisors to Special Entities A swap dealer ‘‘acts as an advisor to a Special Entity’’ under § 23.440 when the swap dealer recommends a swap or trading strategy involving a swap that is tailored to the particular needs or characteristics of the

1The guidance in this appendix regarding the safe harbor to § 23.440 is limited to the safe harbor for any Special Entity under § 23.440(b)(2). A swap dealer may separately comply with the safe harbor under § 23.440(b)(1) for its communications to a Special Entity that is an employee benefit plan as defined in § 23.401(c)(3). 2Communications on the list that are not within the meaning of the term ‘‘acts as an advisor to a Special Entity’’ are outside the requirements of § 23.440. By including such communications on the list, the Commission does not intend to suggest that they are ‘‘recommendations.’’ Thus, a swap dealer that does not ‘‘act as an advisor to a Special Entity’’ within the meaning of § 23.440(a) is not required to comply with the safe harbor to avoid the ‘‘best interests’’ duty with respect to its communications. Special Entity. A swap dealer that ‘‘acts as an advisor to a Special Entity’’ has a duty to make a reasonable determination that a recommendation is in the ‘‘best interests’’ of the Special Entities and must undertake ‘‘reasonable efforts’’ to obtain information necessary to make such a determination. Whether a swap dealer ‘‘acts as an advisor to a Special Entity’’ will depend on: (1) Whether the swap dealer has made a recommendation to a Special Entity; and (2) whether the recommendation concerns a swap or trading strategy involving a swap that is tailored to the particular needs or characteristics of the Special Entity. To determine whether a communication between a swap dealer and counterparty is a recommendation, the Commission will apply the same factors as under § 23.434, the suitability rule. However, unlike the suitability rule, which covers recommendations regarding any type of swap or trading strategy involving a swap, the ‘‘acts as an advisor rule’’ and ‘‘best interests’’ duty will be triggered only if the recommendation is of a swap or trading strategy involving a swap that is ‘‘tailored to the particular needs or characteristics of the Special Entity.’’ Whether a swap is tailored to the particular needs or characteristics of the Special Entity will depend on the facts and circumstances. Swaps with terms that are tailored or customized to a specific Special Entity’s needs or objectives, or swaps with terms that are designed for a targeted group of Special Entities that share common characteristics, e.g., school districts, are likely to be viewed as tailored to the particular needs or characteristics of the Special Entity. Generally, however, the Commission would not view a swap that is ‘‘made available for trading’’ on a designated contract market or swap execution facility, as provided in
Section 2(h)(8) of the Act, as tailored to the
particular needs or characteristics of the Special Entity. Safe harbor. Under § 23.440(b)(2), when dealing with a Special Entity (including a Special Entity that is an employee benefit plan as defined in § 23.401(c)(3)),1 a swap dealer will not ‘‘act as an advisor to a Special Entity’’ if: (1) The swap dealer does not express an opinion as to whether the Special Entity should enter into a recommended swap or swap trading strategy that is tailored to the particular needs or characteristics of the Special Entity; (2) the Special Entity represents in writing, in accordance with § 23.402(d), that it will not rely on the swap dealer’s recommendations and will rely on advice from a qualified independent representative within the meaning of § 23.450; and (3) the swap dealer discloses that it is not undertaking to act in the best interests of the Special Entity. A swap dealer that elects to communicate within the safe harbor to avoid triggering the ‘‘best interests’’ duty must appropriately manage its communications. To clarify the type of communications that they will make under the safe harbor, the Commission expects that swap dealers may specifically represent that they will not express an opinion as to whether the Special Entity should enter into a recommended swap or trading strategy, and that for such advice the Special Entity should consult its own advisor. Nothing in the final rule would preclude such a representation from being included in counterparty relationship documentation. However, such a representation would not act as a safe harbor under the rule where, contrary to the representation, the swap dealer does express an opinion to the Special Entity as to whether it should enter into a recommended swap or trading strategy. If a swap dealer complies with the terms of the safe harbor, the following types of communications would not be subject to the ‘‘best interests’’ duty: 2 (1) Providing information that is general transaction, financial, educational, or market information; (2) offering a swap or trading strategy involving a swap, including swaps that are tailored to the needs or characteristics of a Special Entity; (3) providing a term sheet, including terms for swaps that are tailored to the needs or characteristics of a Special Entity; (4) responding to a request for a quote from a Special Entity; (5) providing trading ideas for swaps or swap trading strategies, including swaps that are tailored to the needs or characteristics of a Special Entity; and (6) providing marketing materials upon request or on an unsolicited basis about swaps or swap trading strategies, including swaps that are tailored to the needs or characteristics of a Special Entity. This list of communications is not exclusive and should not create a negative implication that other types of communications are subject to a ‘‘best interests’’ duty. The safe harbor in § 23.440(b)(2) allows a wide range of communications and interactions between swap dealers and Special
Entities without invoking the ‘‘best interests’’ duty, including discussions of the advantages or disadvantages of different swaps or trading strategies. The Commission notes, however, that depending on the facts and circumstances, some of the examples on the list could be ‘‘recommendations’’ that would trigger a suitability obligation under § 23.434. However, the Commission has determined that such activities would not, by themselves, prompt the ‘‘best interests’’ duty in § 23.440, provided that the parties comply with the other requirements of § 23.440(b)(2). All of the swap dealer’s communications, however, must be made in a fair and balanced manner based on principles of fair dealing and good faith in compliance with § 23.433. Swap dealers engage in a wide variety of communications with counterparties in the normal course of business, including but not limited to the six types of communications listed above. Whether any particular communication will be deemed to be a ‘‘recommendation’’ within the meaning of §§ 23.434 or 23.440 will depend on the facts and circumstances of the particular communication considered in light of the guidance in this appendix with respect to the meaning of the term ‘‘recommendation.’’ Swap dealers that choose to manage their communications to comply with the safe harbors provided in §§ 23.434 and 23.440 will be able to limit the duty they owe to counterparties, including Special Entities, provided that the parties exchange the appropriate representations. Issued in Washington, DC, on January 26, 2026, by the Commission. Christopher Kirkpatrick, Secretary of the Commission. Note: The following appendix will not appear in the Code of Federal Regulations.
Appendix to Revisions to Business
Conduct and Swap Documentation Requirements for Swap Dealers and Major Swap Participants; Correction— Commission Voting Summary On this matter, Chairman Selig voted in the affirmative. No Commissioner voted in the negative. [FR Doc. 2026–01712 Filed 1–27–26; 8:45 am] BILLING CODE 6351–01–P