CFTC Staff Letters

An insurance company requested no-action relief from the Division, in order to allow the company to provide reinsurance of pension plans’ longevity risks through multi-step “Interposed Longevity Reinsurance Transactions,” without such reinsurance being considered as insurance or a guarantee of a swap. Based on the company’s specific fact pattern, the Division found that the use of derivatives in the Interposed Longevity Reinsurance Transaction serves merely as a conduit for longevity risk coverage and payments made pursuant to a bona fide reinsurance transaction. Therefore, the Division agreed not to recommend that the Commission take an enforcement action against the insurance company on the basis that, under this specific fact pattern, the reinsurance of longevity risk is or should be characterized as a swap, as insurance of a swap or a guarantee of a swap, or that the insurance company is a provider of, a party to, guarantor of, or insurer of, a swap.

The Division of Swap Dealer and Intermediary Oversight granted exemptive relief pursuant to Commission regulations 4.12(a) and 140.93 to a commodity pool operator of three commodity pools that are organized as a three-level master-feeder structure that each operate pursuant to an exemption under Commission regulation 4.7 and began accepting subscriptions in December 2013 from the requirement to have an independent public accountant audit the financial statements in each commodity pool’s annual report for fiscal year 2013 pursuant to Commission regulation 4.22(d).

The Division of Swap Dealer and Intermediary Oversight granted exemptive relief pursuant to Commission regulations 4.12(a) and 140.93 to a commodity pool operator (the “CPO”) of a commodity pool operating pursuant to an exemption under Commission regulation 4.7 that has only two participants, both of which have discretionary investment authority over a portion of the commodity pool’s portfolio according to a plan establishing by the CPO’s control affiliate’s Chief Investment Officer and one of which is also a part owner of the CPO and its control affiliate, from the requirement to have an independent public accountant audit the financial statements in the commodity pool’s annual report for fiscal year 2013 pursuant to Commission regulation 4.22(d).

The Division of Swap Dealer and Intermediary Oversight granted exemptive relief pursuant to Commission regulations 4.12(a) and 140.93 to a commodity pool operator of two commodity pools operating pursuant to an exemption under Commission regulation 4.7 that began operations in July 2013 from the requirement to distribute an annual report to the participants of each commodity pool and to have the financial statements in each commodity pool’s annual report be audited by an independent public accountant pursuant to Commission regulations 4.7(b)(3) and 4.22(d) with respect to the annual report for fiscal year 2013.

The Division of Swap Dealer and Intermediary Oversight granted exemptive relief pursuant to Commission regulations 4.12(a) and 140.93 to a commodity pool operator of a commodity pool operating pursuant to an exemption under Commission regulation 4.7 that undertook a significant change in its underlying strategy in 2013, subsequently gave its existing investors an opportunity to liquidate and suspended all fees beyond operational expenses, and began trading with the new models in the latter half of 2013, from the requirement to have an independent public accountant audit the financial statements in the commodity pool’s annual report for fiscal year 2013 pursuant to Commission regulation 4.22(d).

The operator of a commodity pool requested relief from the Annual Report filing and certification requirements in Regulations 4.22(c) and (d), or alternatively, relief allowing them to file a certified Annual Report covering the period from April 25, 2013, to December 31, 2014. Because the entity plans to request from the Division of Swap Dealer and Intermediary Oversight a determination that it is not a commodity pool, DSIO declined to grant the relief requested, as such relief would be conditioned on the future filing of an Annual Report in 2015, and instead granted exemptive relief from the certification requirement in Regulation 4.22(d), conditioned upon the CPO’s filing of an unaudited Annual Report for the 2013 fiscal year otherwise in compliance with Regulation 4.22(c).

Time-Limited No-Action Relief for Certain Members of Swap Execution Facilities and Designated Contract Markets from the Requirement to Record Oral Communications, Pursuant to Commission Regulation 1.35(a), in Connection with the Execution of Swap Transactions

The CPO of a commodity pool requested, and DSIO granted pursuant to Regulations 4.12(a) and 140.93, relief from the Annual Report filing and certification requirements in Regulations 4.7(b)(3) and 4.22(d) for fiscal year 2013 due to the pool’s ongoing significant exposure to an FCM bankruptcy and permission to file uncertified annual reports in lieu thereof.

The CPO of a commodity pool requested, and DSIO granted pursuant to Regulations 4.12(a) and 140.93, relief from the Annual Report filing and certification requirements in Regulations 4.22(c) and 4.22(d) for fiscal year 2013 and permission to file uncertified annual reports in lieu thereof and attached a waiver from the non-proprietary participant.

The investment manager of a cash collateralized loan obligation (CLO) transaction requested, and DSIO granted pursuant to Regulation 140.99, a no action position from DSIO that it would not recommend that the Commission commence an enforcement action for its failure to register as a commodity trading advisor with respect to the advice provided to the CLO.