Co-authored by Maureen C. Guilfoile and Blake J. Brockway.
On June 25, the National Futures Association (NFA) issued guidance regarding the Commodity Futures Trading Commission’s final rules rescinding the exemption from Commodity Pool Operator (CPO) registration granted under CFTC Rule 4.13(a)(4). Persons that are currently exempt from registration as a CPO under Rule 4.13(a)(4) may continue to operate qualifying pool(s) until December 31, 2012. After December 31, any pool operator relying on the Rule 4.13(a)(4) exemption must register with the CFTC, unless the operator qualifies for an exemption from registration under Rule 4.13(a)(3). The final rules also require any person that claims an exemption from CPO or Commodity Trading Advisor (CTO) registration to reaffirm its claim of exemption within 60 days of the end of each calendar year.
After December 31, any NFA member that carries an account or transacts business with any person that is currently exempt from CPO registration under CFTC Regulation 4.13(a)(4) must assure that the person has filed a claim of exemption under CFTC Regulation 4.13(a)(3) or has properly registered and become an NFA member. In addition, any NFA member that carries an account or transacts business with an unregistered person claiming an exemption from registration must verify that the unregistered person has properly filed the annual notice reaffirming the exemption. FCMs must adopt adequate policies and procedures to identify accounts of exempt persons and conduct an annual review to assure that the notices of exemptions are properly reaffirmed.
The NFA’s notice to members is available here.