The Securities and Exchange Commission (SEC) adopted, on 22 June 2011, final rules implementing the provisions of the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank) that amended the Investment Advisers Act 1940 (Advisers Act). This repealed several of the previous exemptions, amended some registration thresholds and created new exemptions. Generally speaking, Dodd-Frank expanded the scope of the Advisers Act and many formerly exempt advisers will now be within scope.
The SEC voted, on 26 October 2011, to adopt the new Form PF. Under these rules registered investment advisers to private funds will be required to report certain information to the SEC and this information is intended to enable the Financial Stability Oversight Council to monitor financial risk in the US financial system. Form PF is a joint rulemaking effort by the SEC and the CFTC and the CFTC has adopted some parts of Form PF which will allow advisers to consolidate their reporting to some extent.
On 9 February 2012, the Commodity Futures Trading Commission (CFTC) voted to approve final rules on the registration and compliance of commodity pool operators (CPOs) and commodity trading advisors (CTAs). The CFTC rescinded the exemption from registration as a CPO in Rule 4.13(a)(4) on which many CPOs relied. The CFTC’s final rules also include amended reporting requirements for registered CPOs and CTAs.
The CFTC did not rescind the de minimis exemption in Regulation 4.13(a)(3), however, they did revise the thresholds to explicitly include swaps in their calculation.
AIMA has previously argued that rescinding the exemptions would be disproportionate and result in an unduly burdensome regime for many advisers (particularly smaller and mid-sized advisers).
For more information please see the CFTC’s website:
CFTC Press release
Questions and Answers
CFTC Final Rule - Commodity Pool Operators and Commodity Trading Advisors: Amendments to Compliance Obligations (rule adopting for CPO-PQR and repealing CFTC Rule 4.13(a)(4)) (February 2012)
CFTC and SEC Final Rule - Reporting by Investment Advisers to Private Funds and certain Commodity Pool Operators and Commodity Trading Advisers on Form PF (November 2011)
SEC Final Rule - Implementing Amendments to the Investment Advisers Act of 1940 (September 2011)
SEC Final Rule - Exemptions for Advisers to Venture Capital Funds, Private Fund Advisers With Less Than $150 million in Assets Under Management and Foreign Private Advisers (June 2011)
CFTC Proposed Rulemaking - Commodity Pool Operators and Commodity Trading Advisors: Amendments to Compliance Obligations (February 2011)
SEC and CFTC Proposed Rulemaking - Reporting by Investment Advisers to Private Funds and certain Commodity Pool Operators and Commodity Trading Advisors on Form PF (2011)
SEC Proposed Rulemaking - Implementing Amendments to the Investment Advisers Act of 1940 (2010)
SEC Proposed Rulemaking - Exemptions for Advisers to Venture Capital Funds, Private Fund Advisers With Less Than $150 million in Assets Under Management and Foreign Private Advisers (2010)
MFA, IAA, AIMA Response - Petition for Rulemaking to amend CFTC Regulations 1.31, 4.7(b) and (c), 4.23 and 4.33 (21 July 2014)
AIMA Position Paper - Commodity Exchange Act: Suggested Improvements on Extraterritorial Application and Other Related Amendments - CFTC (June 2014)
Response to request for Comments in Notice to Members I-14-03 - CPO/CTA Capital Requirement and Customer Protection Measures (April 2014)
Request for relief from requirement to use IFRS on CFTC Form CPO-PQR and NFA Form PQR (May 2013)
Request for Relief from CFTC Rules 4.21, 4.22 and 4.23 for Registered CPOs of Listed Foreign Funds (September 2012)
Response - JOBS Act (June 2012)
Joint MFA/IAA/AIMA Submission to CFTC (April 2012)
Summary of CFTC's Final Rules on Commodity Pool Operators and Commodity Trading Advisors (April 2012)
Summary of SEC's Final Rules on Registration and Reporting (November 2011)
Response to CFTC Roundtable discussion - Registration and Systemic Risk Reporting (July 2011)
Further submission - SEC Private Fund Systemic Risk Reporting Rules (July 2011)
Response to CFTC and SEC consultation - Reporting by Investment Advisers to Private Funds (April 2011)
Response to CFTC - Amendments to compliance obligations (April 2011)
Response to SEC consultation - Investment Adviser Registration (January 2011)
Letter to Congress - Adviser Registration (April 2010)
Letter to Congress - Adviser Registration (October 2009)
Other relevant documents
CPO/CTA Registration Compliance Date No-Action relief letter (July 2012)
CFTC Q & A – Reporting by Investment Advisers to Private Funds and Certain Commodity Pool Operators and Commodity Trading Advisors; and Amendments to Compliance Obligations of Commodity Pool Operators and Commodity Trading Advisors