Key takeaways:

• The CFTC adopted a final rule permitting a person to exclude utility operations-related swaps with utility special entities from the determination of whether the aggregate gross notional amount of its swap dealing positions exceeds the de minimis threshold for swap dealer registration (but only with respect to the threshold applicable to special entities).
• In order to qualify for the exclusion, one party to the swap must be a utility special entity that is using the swap to hedge or mitigate commercial risk, and the swap must be related to an exempt commodity or certain agricultural commodities used in the utility's normal operations.
• The final rule permits a person to rely on written representations of the utility that it is a utility special entity and that the swap qualifies for the exclusion, and a person is not required to file a notice with the CFTC to rely on the exclusion.