Nearly four months after the Commodity Futures Trading Commission (the "CFTC") issued final rules amending CFTC Part 4 Regulations to rescind the widely relied upon exemption from registration available to commodity pool operators ( "CPOs") and commodity trading advisors ("CTAs") that operate or advise pools pursuant to Rule 4.13(a)(4), the National Futures Association (the "NFA") has provided guidance with respect to the upcoming compliance deadlines under the new rules. In particular, the NFA guidance notes that although CPOs and CTAs may continue to operate or advise pools pursuant to the Rule 4.13(a)(4) exemption until December 31, 2012, in order to avoid the newly issued CFTC Part 4 reporting and disclosure requirements for those pools subsequent to December 31, 2012, the pool must qualify for the de minimis exemption from registration under CFTC Regulation 4.13(a)(3). However, CPOs that operate pools that will not qualify for an exemption under Regulation 4.13(a)(3) after December 31, 2012 may still receive relief from certain Part 4 regulatory requirements by filing an exemption under Regulations 4.7, 4.12 or CFTC Advisory 18-96 for qualifying pools. Similarly, CTAs may be eligible for certain relief under Regulation 4.7.
The NFA guidance also reminds CPOs and CTAs that under the final rules any CPO or CTA claiming an exemption pursuant to CFTC Regulation 4.5, 4.13(a)(1), 4.13(a)(2), 4.13(a)(3), 4.13(a)(5) and 4.14 (a)(8) will be required to annually reaffirm the applicable notice of exemption. The first notice reaffirming any of the above exemptions is due for the calendar year ending December 31, 2012. Accordingly, CPOs and CTAs will have sixty days after the calendar year-end to reaffirm the notice of exemption through the NFA's Electronic Exemption System. If a CPO or CTA fails to file such a notice, the exemption will be deemed to have been withdrawn and the CPO or CTA must comply with the applicable Part 4 requirements. In addition, the NFA instructs CPOs that filed a 4.13(a)(3) or 4.13(a)(4) exemption for a pool that never commenced operations or that has ceased operating to update NFA's records by withdrawing the exemption on the Electronic Exemption System and completing the Annual Questionnaire.
Finally, the NFA intends to modify the Electronic Exemption System to provide CPOs that currently rely on a 4.13(a)(4) exemption the opportunity to pre-file for an available exemption that would become effective on January 1, 2013. A CPO that elects to pre-file will not be required to comply with additional reporting and disclosure requirements until 2013. On the other hand, a CPO that opts not to pre-file and withdraws its 4.13(a)(4) exemption and files for another available exemption (other than a 4.13(a)(3)) prior to December 31, 2012 is immediately subject to the CFTC and NFA regulatory requirements.