Firms Tweak Dodd-Frank Compliance Efforts12.06.2012
Now into its third year, the Dodd-Frank Act is alive and well, leaving market participants to wonder what’s ahead for 2013.
There will be key regulators appointed during President Obama’s second term, and those individuals will play a role in both timing and scope of remaining Dodd-Frank rules.
“With President Obama’s re-election, it appears we’ll remain on the regulatory track which started back in July 2010 when Dodd-Frank was signed into law,” said Patrick Shea, managing director and partner at HedgeOp Compliance, which provides regulatory compliance support to investment managers.
Going into 2013, companies need to take a flexible approach when analyzing rule changes under Dodd-Frank in order to implement adequate policies.
“Timing and scope of regulations are very difficult to predict, and so we will continue to take a long-term view when it comes to monitoring regulatory developments and helping clients analyze the impact of those developments,” said Shea.
In February 2012, the U.S. Commodity Futures Trading Commission rescinded Rule 4.13(a)(4) of the Commodity Exchange Act, under which commodity pool operators (CPOs) were exempt from registration if all investors in the CPO’s fund are “qualified eligible persons”, or sophisticated investors.
Funds that relied upon the exemption have until December 31 to decide whether to register with the CFTC.
“The 4.13(a)(4) exemption that has been rescinded was very broad and available to most private fund managers,” said Shea. “It did not carry any portfolio or investment strategy limitations.”
On November 29, the CFTC provided relief in the form of a no-action letter from CPO registration for family offices and fund of funds operators.
Prior CFTC staff interpretative letters provided that family offices meeting specific requirements are not commodity pools. Many family offices, however, chose to seek relief from CPO registration pursuant to CFTC Rule 4.13(a)(4) because of uncertainty as to whether the specific circumstances of the family office were sufficiently similar to those addressed in the previously issued interpretative letters.
“The Family Office letter again provides family offices with the certainty of being exempt from CPO registration and regulation,” said Michael Piracci, of counsel in the investment management and securities industry practice at Morgan Lewis.
The CFTC has left in place the exemption available under Rule 4.13(a)(3) for CPOs engaged in a ‘de minimis’ level of futures trading (no more than 5% of the liquidation value of the fund’s portfolio is used to establish futures trading positions or the aggregate net notional value of such positions does not exceed 100% of the liquidation value of the fund’s portfolio).
Although the CFTC had initially proposed rescinding both Rules 4.13(a)(3) and 4.13(a)(4), the CFTC decided to keep the 4.13(a)(3) exemption for entities engaged in a de minimis amount of futures trading.
Fund managers that are not currently exempt from CFTC registration will need to analyze immediately which entities need to register, which individuals will need to be fingerprinted and to take the Series 3 or Series 32 exam, to ensure any offering documents are CFTC compliant and have been approved by the National Futures Association, the independent self-regulatory watchdog, and to put in place a robust CFTC compliance infrastructure before the 60 days are up.
“With the 4.13(a)(4) exemption going away, the decision is whether the fund can qualify under the 4.13(a)(3) de minimis exemption, in which case they have to monitor activities on a regular basis to make sure their level of commodity instruments is in fact de minimis,” said Shea. “If not, then they have to register as a CPO.”
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