[authors: Michael K. Hoffman, Anastasia T. Rockas, Mark D. Young, Daniel S. Konar II]
On October 12, 2012, the Division of Swap Dealer and Intermediary Oversight (DSIO) of the Commodity Futures Trading Commission (CFTC) issued “Temporary Registration No-Action Relief” (Temporary No-Action Relief) to commodity pool operators (CPOs) and commodity trading advisors (CTAs), among other categories of CFTC-regulated intermediaries.1 In relevant part, the Temporary No-Action Relief confirms that DSIO would not recommend an enforcement action be brought against a CPO or CTA for failing to register as such by October 12, 2012, if the registration requirement arose solely because of the entity’s activities involving swaps (as opposed to futures, options or any other instruments that were within the CFTC’s jurisdiction prior to October 12, 2012).2
The Temporary No-Action Relief is available provided that (i) the entity’s appropriate registration application (CFTC Form 7-R) and the application materials for each of its principals and associated persons (CFTC Form 8-R and fingerprint cards as needed) are filed with the National Futures Association (NFA) by December 31, 2012, and (ii) on and after December 31, 2012, the entity or individual makes a good faith effort to comply with the Commodity Exchange Act and the CFTC’s rules applicable to its activities as a CPO, CTA or associated person (AP) of either of the foregoing. According to DSIO staff, an entity also may rely on the Temporary No-Action Relief if it subsequently receives interpretative or no-action relief or otherwise qualifies for an exclusion or exemption from CPO or CTA registration prior to December 31, 2012, and, therefore, does not file a registration application with the NFA by December 31, 2012.
The Temporary No-Action Relief expires on the date on which the NFA provides notice that the entity or individual is registered as a CPO, CTA or AP of either of the foregoing.
1 Additionally, the Temporary No-Action Relief letter also provides “Statutory Disqualification No-Action Relief” to certain associated persons (APs) of swap dealers and major swap participants.
2 The Temporary No-Action Relief also covers introducing brokers (IBs), floor brokers (FBs), floor traders (FTs) and associated persons of IBs, FBs, FTs or futures commission merchants, provided that each would have otherwise been required to register solely because of their activities involving swaps.