A Light Lift: CFTC Proposes to Codify Existing No-Action Relief and Other Relief Applicable to CPOs and CTAs

by Morgan Lewis

Morgan Lewis

The US Commodity Futures Trading Commission has proposed a rule to streamline its regulation of commodity pool operators and commodity trading advisors, with most proposed amendments codifying, and in some cases broadening, existing no-action and other relief with a more cohesive set of rules.

On October 9, the US Commodity Futures Trading Commission (CFTC) issued for comment a rule proposal that would streamline the agency’s regulatory approach for commodity pool operators (CPOs) and commodity trading advisors (CTAs) following significant expansions in CPO and CTA oversight in the last decade. The proposal includes changes based on industry comments to the CFTC’s Project KISS initiative, a process through which the agency sought public input on simplifying and modernizing the agency’s regulations. Much of the CFTC’s proposed amendments would codify existing relief and, in some cases—including for CPOs of non-US (offshore) commodity pools—broaden that relief further.

Contrary to the desire of market participants, the CFTC has not used this proposed rulemaking to tackle significant issues for CPOs of registered investment company commodity pools that have arisen from the agency’s earlier efforts to harmonize CPO regulations with requirements applicable to those kinds of pools under the Investment Company Act of 1940 and other federal securities laws. CFTC Chairman Christopher Giancarlo indicated in a statement accompanying the proposal, however, that additional CPO and CTA rules changes are likely to be proposed in the near future.

On balance, the proposed rule changes will simplify compliance obligations for CPOs and CTAs, by the simple fact that those firms can refer to a more cohesive set of rules and corresponding relief in the CFTC’s regulations rather than having to piece together their compliance approach through an assembly of no-action letters and other relief issued over several years. While it does not purport to solve every issue of interest to the industry, the proposed relief nonetheless reflects a positive incremental step in rationalizing the CFTC’s regulatory approach to CPOs and CTAs.

Codification of Existing Relief

The CFTC has proposed to codify existing no-action and other relief applicable to CPOs and CTAs, as discussed below (view as a printable table). References to CFTC regulations are indicated by section (§) number.

Relief for CPOs of Offshore Pools

Existing Relief: CFTC Advisory 18-96 (Advisory)
Proposed New Relief: § 4.13(a)(4) 

Registered CPOs with offshore pools with no US investors would be permitted to solicit or accept funds from non-US persons for participation in offshore pools and claim an exemption from CPO registration requirements with respect to such pools while simultaneously remaining registered as CPOs where the CFTC deems such registration is required.

This proposed amendment would have the effect of expanding relief currently available under the Advisory such that CPOs solely operating offshore pools with no US investors would have an express exemption from registration with the CFTC. Importantly, by placing this relief within CFTC Regulation 4.13, CPOs of offshore pools will become exempt from the requirement to report information about those pools in Form CPO-PQR pursuant to CFTC Regulation 4.27. The Advisory, which was issued several years before Form CPO-PQR was adopted, does not provide relief from this reporting requirement.

(We note that the National Futures Association (NFA)—the industry regulatory body for CFTC-registered firms—has an independent reporting obligation and its own Form PQR, which registered CPOs satisfy by filing a single report. As a result, the NFA may need to revise or provide relief from this requirement to align with the CFTC’s approach to offshore pools, assuming the CFTC ultimately adopts this proposed rule change.)

A CPO relying on the proposed relief would be required to (1) affirm its current registration status with the CFTC; (2) ensure that the commodity pool for which it acts is, and will remain, organized and operated outside of the United States, will not hold meetings or conduct administrative activities within the United States, and will not have at any time any shareholder or partner of such pool who is considered a US person (including a strict prohibition on not receiving, holding, or investing any capital directly or indirectly contributed from sources within the United States); (3) not engage in any marketing activity for the purpose, or that could reasonably have the effect, of soliciting participation from US persons; and (4) represent that neither itself nor any of its principals is subject to any statutory disqualification under the Commodity Exchange Act (CEA) unless such disqualification was previously disclosed in connection with a registration.

In order to qualify for existing recordkeeping relief under the Advisory, a registered CPO with its main business office in the United States will be required to represent that original books and records of the pool are maintained at the main business office of the pool outside the United States in order to comply with IRS requirements for relief from US federal income taxation.

The CPO will also be required to maintain duplicate books and records of the pool in the United States such that the original books and records of the pool can be made available within 72 hours after a request from the CFTC, US Department of Justice, or NFA.

The CPO will remain subject to the CEA’s antifraud and anti-manipulation provisions to keep books and records for the exempt pools, and must submit to special calls to demonstrate eligibility and compliance with the conditions of the relief.

Relief for Registered CPOs and CTAs That Engage Solely in Exempt or Excluded Activities

Existing Relief: CFTC No-Action Letter Nos. 14-115 and 15-47
Proposed New Relief: § 4.27(b)

CPOs and CTAs that are registered but only operate pools for which they are excluded from the CPO definition or exempt from registration with respect to such pools or do not direct client accounts, as the case may be, are no longer required to submit Forms CPO-PQR and CTA-PR.

In addition, the CFTC has proposed to expand relief from filing Form CTA-PR to firms that are registered as CPOs and provide commodity interest trading advice to pools for which they are so registered. Under the proposed rules, these types of firms would be exempt from CTA registration under Section 4.14(a)(4) because they are required to file Form CPO-PQR with regard to the relevant pool. Firms that direct the trading of pools for which the firm is exempt from CPO registration would be similarly exempt from making a Form CTA-PR filing under the proposed rules notwithstanding any such firm’s status as a registered CTA.

Codifying JOBS Act Relief with Respect to Offerings of Commodity Pools Involving General Solicitations

Existing Relief: CFTC No-Action Letter No. 14-116
Proposed New Relief: §§ 4.7(b)(1), 4.13(a)(3)(i)

CFTC No-Action Letter 14-116 provides relief from certain provisions of CFTC Regulations 4.7(b) and 4.13(a)(3), which restrict marketing to the public. The letter was issued to harmonize these CFTC regulations with Securities and Exchange Commission (SEC) Rule 506(c) of Regulation D and SEC Rule 144A, which permit general solicitation or advertising, subject to specific conditions. The SEC rules were amended pursuant to the Jumpstart Our Business Startups Act of 2012 (the JOBS Act). CPOs currently wishing to rely upon this exemptive letter must, among other things, file a notice with the CFTC Division of Swap Dealer and Intermediary Oversight (DSIO).

The CFTC has proposed to tailor the requirements in Sections 4.7(b) and 4.13(a)(3) to eliminate the language that restricted marketing the pool to the public and to be consistent with the JOBS Act relief provided in CFTC No-Action Letter No. 14-116.

Including Business Development Companies (BDCs) in the Current Exclusion for Registered Investment Companies

Existing Relief: CFTC No-Action Letter No. 12-40
Proposed New Relief: § 4.5(b)(1)

The CFTC has proposed to expand the CPO exclusion for investment companies under Section 4.5 to include BDCs. The investment manager of a BDC will be subject to the limits on commodity interest exposure that currently apply under Section 4.5, i.e., the 5% initial margin test and the 100% aggregate net notional value test (only one of which must be satisfied).

(The CFTC elected not to modify the language in Section 4.5 that permits a CPO to exclude commodity interests held as bona fide hedging positions, such that they are not subject to the 5% and 100% tests noted above. This is true, even though the referenced rules that define bona fide hedging—Sections 1.3(z) and 151.5—were vacated by a federal court decision years ago. In doing so, the CFTC has indicated that it will update cross references to Sections 1.3(z) and 151.5 in Section 4.5 after it adopts new bona fide hedging rules.)

The CFTC also proposed to amend Section 4.5 to provide that the investment adviser to a registered investment company or BDC is the entity that must claim the CPO exclusion, which reflects a change from the current reference to the registered investment company itself. The CFTC explained that this rule change is consistent with the approach it has taken to CPO registration in this context, under which the investment adviser to a registered investment company (rather than its directors) must register as the CPO.

If adopted, this change could require firms that have historically claimed the Section 4.5 exclusion based on its text, i.e., by filing the claim of exclusion in the name of the registered investment company as to itself or its series, to update their claims in the NFA’s system absent any different accommodation by the CFTC for this historical practice.

Codifying Relief from CPO and CTA Registration for Family Offices

Existing Relief: CFTC No-Action Letter Nos. 12-37 and 14-143
Proposed New Relief: §§ 4.13(a)(8), 4.14(a)(11) 

The CFTC has proposed to codify the relief from registration applicable to CPOs and CTAs for family offices. In order to avail itself of the relief, a family office must submit a claim to the DSIO and remain in compliance with the exclusion for family offices from the definition of investment adviser, adopted by the SEC in 2011.

The CFTC proposes to exempt from registration (1) CPOs of pools offered privately to family clients; and (2) CTAs who advise family clients. “Family client” would be defined by reference to SEC Rule 202(a)(11)(G)-1.1. Family offices would be required to make a filing with the NFA in order to claim this family office exemption.

Other Proposals

New Representation Requirement Related to Statutory Disqualifications

As outlined above, a CPO that relies on an exemption from registration will be required to represent that it and its principals are not subject to a statutory disqualification in Section 8a(2) or 8a(3) of the CEA. Existing claimants would be required to make this representation at the time they make annual affirmations of their continued reliance on Section 4.13 next year. New claimants would be required to make this representation when filing new claims of relief under Section 4.13. Family office CPOs would not be subject to the statutory disqualification provision. The new representation requirement would be codified as Section 4.13(a)(6).

Expanded Relief Under Section 4.13(a)(3) (The De Minimis Exemption)

Under Section 4.13(a)(3), a person may claim relief from CPO registration where the person satisfies various conditions, including limiting participation to investors that meet certain investor sophistication criteria. Under the proposed rulemaking, the CFTC would permit non-US persons, regardless of sophistication, to invest in pools operated by such exempt CPOs. This is consistent with a CFTC staff FAQ issued in 2012, which provided that Section 4.13(a)(3) continued to include non-US persons as eligible investors.

Other Light Lifts the CFTC Could Have Included in the Proposed Rulemaking

In codifying existing no-action relief, the CFTC omitted two heavily relied-upon letters from its codification efforts. First, the CFTC did not include CFTC No-Action Letter Nos. 14-69 and 14-126, the class delegation relief that permits a nonregistered individual or firm to delegate its CPO responsibilities to a registered CPO. The CFTC should have considered incorporating an expanded version of CFTC No-Action Letter No. 14-126 in its rulemaking to cover delegation scenarios where corporate entities are not affiliated with one another. Instead, market participants who delegate CPO responsibilities from one firm to another unaffiliated firm will need to continue to request ad hoc relief from CFTC staff. Without codifying relief, the burden will remain on market participants and CFTC staff to address the issue of nonaffiliation on a continual basis.

Second, the CFTC could have used this proposal as an opportunity to codify existing CPO and CTA recordkeeping relief. Instead, the CFTC has omitted from consideration the codification of CFTC No-Action Letter Nos. 14-114 and 17-24, which provide recordkeeping relief to CPOs and CTAs. Pursuant to CFTC No-Action Letter No. 17-24, a CTA may maintain records with a third-party recordkeeper by following the procedures to claim the relief as set forth in the no-action relief. Although some of the CPO relief is already codified, the CFTC could have used this proposal to codify CFTC No-Action Letter No. 14-114 in addition to Letter No. 17-24.

Finally, the CFTC chose not to look at the Section 4.5 definition with a clean slate and replace the guidance provided in staff letters with an appropriate definition of “bona fide hedging” that looks to the goals of Regulation 4.5, not to the position limits rules (which were the source of the current vacated definition). Since Section 4.13(a)(3) does not expressly exclude bona fide hedging transactions, moreover, such a reevaluation of bona fide hedging could have considered applying the concept to that CPO exemption as well.

What’s Next?

Comments on the proposal are due 60 days after the proposal is published in the Federal Register. We expect wide support for the CFTC’s proposal, but also anticipate that market participants will identify areas the CFTC failed to address or continue to request further relief, especially with respect to dual-registered firms subject to both SEC and CFTC oversight. As explained earlier, Chairman Giancarlo’s statement that more relief may be coming suggests that industry comments on the proposal and continued dialogue with the agency may help continue to streamline and rationalize the regulatory framework for CPOs and CTAs.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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