On September 1st, CFTC Commissioner Scott O'Malia released a statement in support of the National Futures Association's petition to amend CFTC Regulation 4.5, which provides an exclusion from the definition of the term "commodity pool operator" for otherwise regulated persons operating certain qualifying entities. The NFA requests the restoration of the pre-2003 requirement that persons claiming the exclusion file a notice of eligibility and make certain representations. NFA Petition. O'Malia noted that SEC-registered investment companies have begun offering mutual funds to retail customers that for the most part, if not solely, trade futures. These Futures Mutual Funds actively avoid CFTC regulation by claiming an exclusion from CPO registration under CFTC Regulation 4.5(a)(1). Until the recent influx of new mutual funds specializing in futures trading, the use of the exclusion was innocuous. However, continuing to allow FMFs to operate by evading CFTC oversight and its disclosure obligations pose increased risks to the market and to retail investors. O'Malia Statement.