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September 30, 2013
Filing Requirements for Exemptions Notices under CFTC's Recently Adopted Harmonization Rules
On August 22, 2013, the CFTC adopted final rules, which harmonize certain compliance obligations for CPOs of investment companies registered under the Investment Company Act of 1940 (RICs) that are now required to register as CPOs due to recent changes to the exclusion for registration available under Regulation 4.5. See the CFTC Federal Register for the full text of the final rules. The final rules provide that a CPO of a RIC may elect to comply with CFTC Part 4 disclosure, reporting and recordkeeping requirements through substituted compliance with the applicable SEC rules for RICs, subject to certain conditions outlined in CFTC Regulation 4.12(c), including the requirement that the CPO file notice of substituted compliance with NFA under CFTC Regulation 4.12(c)(3).
The final rules also provide relief to all CPOs from the requirement of CFTC Regulation 4.23 that a CPO maintain full books and records at its main business office by permitting the CPO to delegate recordkeeping to a third party (such as an administrator). Any CPO electing to maintain books and records at a third party must file notice under 4.23(c) at the later of the time of registration or decision to use a third party recordkeeper and provide certain specified information. A separate notice must be filed for each pool for which the records will be maintained at a third party, as well as a separate notice for the CPO if its records will be maintained at a third party. A CPO that elects to maintain the books and records of a 4.7 exempt pool at a third party, however, must file notice for that pool under 4.7(b)(4) and a separate notice for the CPO under 4.23(c), if applicable.
The notice required under 4.23(c) and 4.7(b)(4) requires the CPO provide the following information: the name, main business address and phone number, and a contact person for each entity who will be keeping required books and records in lieu of the CPO. Further, the CPO will be required to upload a statement from the third party containing the specific representations outlined in the regulation.
How to file for any of the above notices
Effective October 1, 2013, CPOs claiming relief under any of the above notices will be able to do so through NFA's Exemption System at http://www.nfa.futures.org/NFA-electronic-filings/exemptions.HTML. Once logged into the system, you will be directed to the Exemption Index, which lists all Firm Level exemptions (at the top) and Pool Level exemptions (at the bottom). To file an exemption, simply select the applicable File an Exemption link and select the applicable exemption from the File Pool Exemption drop down menu.
Any questions regarding these processes should be directed to Mary McHenry, Associate Director, Compliance (firstname.lastname@example.org or 312-781-1420) or Tracey Hunt, Associate Director, Compliance (email@example.com or 312-781-1284).