CFTC Division of Market Oversight Extends Time-Limited No-Action Relief for OCR Reporting Obligations (CFTC No-Action Letters 16-32 and 16-33)

The CFTC Division of Market Oversight ("DMO") granted the Futures Industry Association ("FIA") conditional time-limited no-action relief from data reporting and data masking obligations implemented by the Ownership and Control ("OCR") final rules. The OCR final rules are intended to provide the CFTC with enhanced visibility of participants and their positions and trading in the futures and swaps markets. The rules require electronic submission of trader identification and market participant data on updated reporting forms.

CFTC No-Action Letter 16-32 extended the time-limited no-action relief previously granted by CFTC No-Action Letter 15-52 in September 2015 to FIA members that are required to electronically submit reports under Parts 17, 18 and 20 of CFTC rules. The DMO granted the relief provided that reporting parties comply with the reporting practice that was in place prior to the implementation of the OCR final rule via the Legacy 102S filing until September 28, 2016.

The prior relief for New Form 102A, New Form 102B (with respect to DCM volume threshold accounts) and New Form 102S (which previously expired on April 27, 2016) will now extend to September 28, 2016. Further, prior relief for New Form 40/40S and New Form 71 (which previously expired on September 28, 2016) will now extend to November 17, 2016. The DMO also provided new "substantive" no-action relief for New Forms 102A, 102B and 102S in order to examine whether to recommend that the CFTC amend the OCR final rule as it pertains to swap execution facilities.

Under these requirements, reporting parties must obtain from their customers or counterparties the information necessary to submit the OCR forms, and Reporting Parties taking advantage of this relief must provide to DMO, upon request, a list of clients (including their phone number and addresses) that have not provided such information to such reporting parties.

CFTC No-Action Letter 16-33 granted conditional time-limited no-action relief from the requirement to report Forms 102A and 102B Identifying Information until the earlier of: (i) a reporting party no longer holding the requisite reasonable belief regarding the privacy law consequences of reporting; and (ii) March 1, 2017. The Letter is substantively similar to CFTC Letter 16-03 issued on January 15, 2016, which extended relief permitting Part 45 and Part 46 reporting counterparties to mask legal entity identifiers, other enumerated identifiers and other identifying terms and permitted reporting Part 20 reporting parties to mask identifying information in certain enumerated jurisdictions. CFTC No-Action Letter 16-33:

• does not require outside counsel opinion for a reporting party to form a reasonable belief that non-U.S. privacy laws bar the reporting of certain information on Form 102A or 102B; and

• requires a formal response from the relevant foreign regulator(s) that reporting such information via Form 102A or 102B would violate the law of the non-U.S. jurisdiction.

The CFTC noted that further detail on procedures for masking certain information on Form 102A or 102B will be forthcoming on the CFTC OCR homepage.​