## Facts

- DTCC Data Repository (U.S.) LLC (DDR) was a registered swap data repository (SDR) that competed with SDRs affiliated with derivatives clearing organizations (DCOs).
- Dodd-Frank and the Commodity Exchange Act (CEA) required swap clearing through CFTC-regulated DCOs and required reporting of swap data to CFTC-registered SDRs.
- DDR alleged that CFTC staff revised the agency’s website FAQs by removing guidance suggesting DCOs could not require swap data reporting exclusively to an affiliated SDR.
- DDR contended that the FAQ revision signaled a policy change permitting DCOs to condition clearing on reporting to captive SDRs, harming independent SDRs.
- DDR also challenged ICE Clear Credit’s self-certified rule requiring swap data for certain cleared products to be reported only to ICE-affiliated SDRs.
- Under the CEA’s self-certification framework, ICE’s rule became effective by operation of law unless the CFTC stayed or disapproved it.
- DDR sued the CFTC under the Administrative Procedure Act (APA), asserting the FAQ revision and the CFTC’s failure to block ICE’s rule were unlawful and arbitrary and capricious.
- The CFTC moved to dismiss for lack of reviewable “final agency action” under APA § 704.

## Issues

1. Whether the revision or deletion of CFTC website FAQs constituted “final agency action” reviewable under APA § 704.
2. Whether the CFTC’s nonintervention regarding a DCO’s self-certified rule that became effective by operation of law constituted “final agency action” reviewable under APA § 704.

## Decision

- The court granted the CFTC’s motion to dismiss.
- The court held DDR failed to identify any final, reviewable agency action as required by APA § 704.
- The court concluded that website FAQ revisions were nonbinding guidance and did not determine rights or obligations or create legal consequences.
- The court concluded that the effectiveness of ICE’s self-certified rule resulted from the statutory self-certification mechanism, not from an affirmative CFTC approval or order, and the CFTC’s inaction was not final agency action.
- Without final agency action, DDR’s APA claims could not proceed.

## Legal Principles

- APA review under 5 U.S.C. § 704 requires a “final agency action” unless a statute independently makes the action reviewable.
- An agency communication is not final agency action if it is informational or interpretive guidance that does not bind regulated parties or determine legal rights or obligations.
- Agency inaction is not reviewable as final agency action where no discrete, affirmative agency decision or order is identified and legal consequences flow from statutory operation rather than agency approval.
- Allegations of illegality or competitive harm do not substitute for the APA’s threshold requirement of final agency action.

## Conclusion

The court dismissed DDR’s APA challenge because neither CFTC staff edits to website FAQs nor the CFTC’s failure to block a self-certified DCO rule constituted final agency action subject to judicial review under APA § 704.


DTCC Data Repository (U.S.) LLC v. Commodity Futures Trading Comm'n, 25 F. Supp. 3d 9 (D.D.C. 2014)