The ABA and ABASA asked the OCC, FDIC, Federal Reserve Board, and CFTC to not impose margin requirements for uncleared swaps entered into by commercial end users that use swaps to hedge or mitigate commercial risk and for the same exemption for banks with the limited swaps activities. They also asked the regulators not to impose third-party margin requirements on inter-affiliate transactions. The final rules did not impose margin on commercial end users and also exempted financial end users with $8 billion or less in gross notional exposure in uncleared swaps. Nonbanks that are covered swap entities (CSEs) would generally not have to collect initial margin from affiliates, while bank CSEs will be required to collect but not post initial margin with affiliates.

The Dodd-Frank Act directs the CFTC and SEC to consider an exception from clearing requirements for banks and savings associations with $10 billion or less in total assets. The ABA urged the CFTC and SEC to grant the exception to small banks and savings associations whose swaps constitute a truly de minimis amount of the market. The final CFTC rule granted an exception.

Contributing author of the report prepared by the ABA Business Law Section Banking Law Committee (BLC) Task Force on the Causes of the Financial Crisis. This BLC Task Force was formed as a subgroup of the Task Force on Financial Regulatory Restructuring, which was appointed by the BLC to analyze financial regulatory and systemic issues that may have caused and contributed to the 2007-2009 financial crisis.