On December 19, 2025, the Market Participants Division (“MPD”) of the Commodity Futures Trading Commission (“CFTC”) issued relief (see CFTC Letter No. 25-50) on an interim basis permitting certain commodity pool operators (“CPOs”) registered with the Securities and Exchange Commission (“SEC”) as investment advisers to claim relief from CPO and commodity trading advisor (“CTA”) registration while the CFTC considers further rulemaking.
Background
In 2012, the CFTC rescinded prior Rule 4.13(a)(4) (the “QEP Exemption”), which provided an exemption from registration as a CPO with respect to certain privately offered commodity pools whose investors were limited to qualified eligible persons (“QEPs”) (or alternatively, in the case of non-natural person investors, certain types of accredited investors). QEPs include (i) “qualified purchasers,” as defined in Section 2(a)(51)(A) of the Investment Company Act of 1940, as amended (the “1940 Act”), (ii) “knowledgeable employees” as defined in Rule 3c-5 under the 1940 Act, and (iii) certain other categories of investors.1 The CFTC is presently considering reinstating the QEP Exemption in some form.
No-Action Relief Granted
The relief granted provides that MPD will not recommend pursuing an enforcement action for failure to register against a CPO that is an SEC-registered investment adviser and currently either (i) is registered or would be required to register with the CFTC as a CPO or (ii) relies on an existing exemption from CPO registration pursuant to CFTC Rule 4.13, in each case, with respect to a pool:
- in which interests are exempt from registration under the Securities Act of 1933 and are sold without marketing to the public in the United States;2
- whose investors the CPO reasonably believes are limited to QEPs; and
- with respect to which the CPO files a Form PF.
In order to rely on this relief, CPOs must file a notice via email to the CFTC.
The relief also provides that MPD will not recommend pursuing an enforcement action against a CPO relying on this relief if such CPO fails to register, or withdraws from registration, as a CTA, solely with respect to the relevant pools.
The relief further states that CPOs that deregister solely due to this relief are not subject to the provisions of CFTC Rule 4.13(e)(2), which would otherwise require such CPOs to offer all participants in the relevant pools an automatic right to redeem their interests from the pools in connection with such deregistration.
By its terms, the relief will remain available until the CFTC promulgates rules addressing the reinstatement of the QEP Exemption or publicly determines not to promulgate such rules.
Please contact Leigh R. Fraser, Jeremy A. Liabo, Katherine J. Forrester-Quek or the Ropes & Gray attorney who usually advises you for further information or with any questions you may have.