June 21, 2013

CFTC’s Division of Swap Dealer and Intermediary Oversight Issues No-Action Relief Providing an Alternative to Fingerprinting to Establish Fitness of Associated Persons Residing Outside the United States

Washington, DC —The Commodity Futures Trading Commission’s Division of Swap Dealer and Intermediary Oversight (DSIO) today announced the issuance of a no-action letter relating to the fingerprinting requirement under Commission Regulation 3.12 for certain associated persons of Commission registrants.

The no-action letter responds to a request from the National Futures Association (NFA) for relief from the fingerprinting requirement for associated persons of Commission registrants where the associated persons have not resided in the United States since reaching 18 years of age (Non-U.S. Associated Persons). The relief provided in the no-action letter is similar to the relief provided in CFTC Letter No. 12-49, issued on December 11, 2012, for Non-U.S. Principals.

Specifically, the no-action letter provides that DSIO will not recommend that the Commission commence an enforcement action against a sponsoring FCM, RFED, IB, CPO, CTA, or leverage transaction merchant based solely upon the failure to submit a fingerprint card with a Form 8-R on behalf of a Non-U.S. Associated Person, provided that the sponsoring FCM, RFED, IB, CPO, CTA, or leverage transaction merchant: (1) submits a Form 8-R for each Non-U.S. Associated Person with a “certification” that includes the information described below; and (2) notifies NFA within 30 days after the filing of a Form 8-R that it has not submitted a fingerprint card for each Non-U.S. Associated Person.

For purposes of this no-action relief, the above-referenced “certification” must be signed by a person duly authorized by the sponsoring FCM, RFED, IB, CPO, CTA, or leverage transaction merchant to bind the sponsoring registrant, and is required to state that: (1) a reasonable criminal history background check using a reputable commercial service was conducted; and (2) such criminal history background check did not reveal any matters that constitute a disqualification under Sections 8a(2) or 8a(3) of the CEA, other than those disclosed.

The no-action relief is also subject to compliance with the condition that the registrant keeps a copy of the certification, together with all supporting documents, pursuant to Commission Regulation 1.31.

The no-action letter further advises that DSIO intends to continue to explore alternatives to the fingerprinting requirement in the context of Non-U.S. Associate Persons, and that it might in the future revisit the process detailed in the no-action relief without prejudice to registrants who may already have availed themselves of the relief provided in this no-action letter.

Last Updated: June 21, 2013