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United States: CFTC Extends Position Limits Aggregation Relief

On August 10, 2022, the Commodity Futures Trading Commission’s (CFTC) Division of Market Oversight (DMO) issued a no-action letter (NAL), CFTC Staff Letter No. 22-09 (NAL 22-09), temporarily extending relief regarding certain position aggregation requirements until the earlier of either August 12, 2025 or the effective date of any relevant rulemaking. This relief was first provided in CFTC Staff Letter No. 17-37 (NAL 17-37) on August 10, 2017, and subsequently extended in CFTC Staff Letter No. 19-19 (NAL 19-19) on July 31, 2019. The extended relief provided by NAL 19-19 was set to expire on August 12, 2022, two days before the issuance of NAL 22-09. The DMO stated that it would use the newly extended time to assess the impact of the relief, including whether it hinders the CFTC staff’s ability to conduct market surveillance, particularly in light of so many new contract markets and market participants becoming subject to the Position Limits for Derivatives Final Rule.  The CFTC will also consider a rulemaking process to codify the relief set forth in NAL 22-09.

CFTC Regulation 150.4 governs the circumstances when positions by different persons have to be aggregated under the CFTC’s position limits regulatory regime, including when certain exemptions from the aggregation requirement apply and how to apply for such an exemption. NAL 22-09 provides that the DMO will not make an enforcement referral to the CFTC with respect to CFTC Regulation 150.4 subject to certain conditions, including:

  • Streamlined notice filing requirements;

  • Revised definitional conditions for eligible entities, independent account controllers, and commodity trading advisors; and

  • Limited aggregation requirements for “substantially identical trading strategies,” which are governed under CFTC Regulation 150.4(a)(2) .

Pursuant to the relief extended in NAL 22-09, a market participant that qualifies for an exemption from the aggregation requirement will not need to submit a related notice filing to the CFTC, as is required under CFTC Regulation 150.4, unless contacted by the CFTC with a request to submit a notice filing, and so long as the market participant is otherwise in compliance with the applicable position limits and position aggregation requirements.

Copyright 2022 K & L GatesNational Law Review, Volume XII, Number 235
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About this Author

Cheryl L. Isaac Washington D.C. Investment Lawyer K&L Gates
Of Counsel

Cheryl Isaac is of counsel in the firm’s Washington office, where she advises clients on compliance with derivatives laws and regulations, including those promulgated under the Dodd-Frank Wall Street Reform and Consumer Protection Act by the CFTC, SEC, Federal Reserve and other federal regulators. She represents banks, commodity trading firms, asset managers and other market participants (both buy-side and sell-side) in interest rate, commodities and FX derivatives transactions, and has significant experience negotiating cleared derivatives documentation and ISDA Master...

202-778-9089
Associate

Michael Lee is an associate at the firm's Washington, D.C. office and is a member of the Asset Management and Investment Funds practice. He is also a part of the firm's derivatives team and financial services policy team. He is a registered lobbyist.

202-778-9329
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