U.S. COMMODITY FUTURES TRADING COMMISSION

Three Lafayette Centre

1155 21st Street, NW, Washington, DC 20581

Telephone: (202) 418-5977

Facsimile: (202) 418-5407

gbarnett@cftc.gov

Division of Swap Dealer and

Intermediary Oversight

Gary Barnett

Director

CFTC Letter No. 13-29

No-Action

June 21, 2013

Division of Swap Dealer and Intermediary Oversight

Re: No-Action Relief: Alternative to Fingerprinting to Establish Fitness of Associated 

Persons Residing Outside the United States

Ladies and Gentlemen:

This letter is in response to a May 23, 2013 request from the National Futures 

Association (“NFA”), received by the Division of Swap Dealer and Intermediary Oversight 

(“Division”) of the Commodity Futures Trading Commission (“Commission”), seeking relief 

from the fingerprinting requirement for associated persons of Commission registrants where 

those associated persons have not resided in the United States since reaching 18 years of age 

(“Non-U.S. Associated Persons”).”1 Except under certain specific circumstances,2 Commission 

 

1 Under Commission Regulation 1.3(aa), an “associated person” is defined as any natural person who is associated 

in certain capacities with a futures commission merchant, an introducing broker, a commodity pool operator, a 

commodity trading advisor, a leverage transaction merchant, or a swap dealer or major swap participant. 17 C.F.R. 

§ 1.3(aa).

2 The Dodd-Frank Wall Street Reform and Consumer Protection Act ("Dodd-Frank Act"), Pub. L. No. 111-203, 

Title VII (the Wall Street Transparency and Accountability Act of 2010), 124 Stat. 1376 (enacted July 21, 2010),

added section 4s(a) to the Commodity Exchange Act (“CEA” or “Act”) to provide for the registration and 

comprehensive regulation of swap dealers (“SDs”) and major swap participants (“MSPs”). In the adopting release 

setting forth the final rules applicable to the registration of SDs and MSPs, the Commission specifically recognized 

that “CEA section 4s does not direct the Commission to adopt rules that provide for the registration of associated 

persons of SDs or MSPs.” Registration of Swap Dealers and Major Swap Participants, 77 FR 2613 (Jan. 19, 2012) 

(emphasis added). Accordingly, when the Commission issued its conforming amendments to 17 C.F.R. Part 3 

governing the registration of intermediaries, it did not include persons associated with SDs or MSPs as a category of 

persons that are required to register as associated persons. Thus, such persons are not required to file a Form 8-R or 

submit fingerprints to the National Futures Association. See 17 C.F.R. §§ 3.12(a), (c). The Commission’s 

Regulations are found at 17 C.F.R. Ch. I, and may be accessed through the Commission’s website, www.cftc.gov.

In addition, Commission Regulation 3.12(h) sets forth specific categories of persons that are exempt from the 

requirement to register as an associated person. The most pertinent of these exemptions with respect to associated 

persons residing outside the United States is Commission Regulation 3.12(h)(1)(iv), which exempts a person that is 

“[e]ngaged in any activity as an associated person, as defined in § 1.3(aa) of this chapter, from a location outside the 

United States, its territories or possessions, and [that] limits such activities to customers located outside the United 

States, its territories or possessions.” 17 C.F.R. § 3.12(h)(1)(iv).
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Regulations require each natural person that is associated with a registered entity to submit 

fingerprints that are used to conduct a background fitness check for that associated person.

Commission Regulation 3.12(a) requires any person associated with a futures 

commission merchant (“FCM”), retail foreign exchange dealer (“RFED”), introducing broker 

(“IB”), commodity trading advisor (“CTA”), commodity pool operator (“CPO”), or leverage 

transaction merchant to register as an associated person of that sponsoring FCM, RFED, IB, 

CTA, CPO, or leverage transaction merchant. Under Commission Regulation 3.12(c), except as 

otherwise provided, application for registration as an associated person in any capacity must be 

filed on a Form 8-R for each natural person who is associated with an FCM, RFED, IB, CTA, 

CPO, or leverage transaction merchant. And under Commission Regulation 3.12(c)(3), each 

Form 8-R filed by such associated person must be accompanied by the fingerprints of that 

associated person on a fingerprint card provided by the NFA for that purpose (the “Fingerprint 

Requirement”).

In the United States, review of fingerprints by the FBI has provided a reliable and 

geographically consistent means for discerning criminal background information. NFA has 

informed Division staff that the usefulness of the Fingerprint Requirement is significantly 

diminished outside of the United States, where various national and regional law enforcement 

agencies have widely varying capabilities in terms of the information they are able to provide 

and the promptness with which they can provide it. The lack of a single fingerprint record 

repository outside of the United States (analogous to the FBI) further decreases the utility and 

efficiency of collecting fingerprints for purposes of conducting background fitness checks of 

persons residing abroad. As a result, NFA only submits the fingerprints to the FBI. In addition, 

concerns have been raised by the industry that, in other jurisdictions, requiring the submission of 

fingerprints may contravene privacy laws.

In a letter dated December 11, 2012, the Division considered the foregoing concerns in 

light of the purposes of the Fingerprint Requirement in determining to grant no-action relief from 

the Fingerprint Requirement to principals of FCMs, RFEDs, IBs, CPOs, CTAs, SDs, MSPs, and 

leverage transaction merchants where those principals have not resided in the United States since 

reaching 18 years of age (“Non-U.S. Principals”).3 In its May 23, 2013 request for relief, NFA 

requested that the Division “issue analogous no-action relief to non-U.S. [associated persons].”4 

Given that similar concerns apply to Non-U.S. Associated Persons as to Non-U.S. Principals, the 

Division has determined to grant no-action relief from the Fingerprint Requirement to such NonU.S. Associated Persons.

The Division therefore believes that a sponsoring FCM, RFED, IB, CPO, CTA, or 

leverage transaction merchant should be permitted to comply with Commission Regulation 

3.12(c)(3) with respect to a Non-U.S. Associated Person by submitting either a fingerprint card 

or a certification, signed by a person duly authorized by the sponsoring FCM, RFED, IB, CPO, 

 

3

See CFTC Letter No. 12-49 (Dec. 11, 2012), which may be accessed through the Commission’s website, 

www.cftc.gov.

4

Id.
Page 3

CTA, or leverage transaction merchant to bind the sponsoring registrant, certifying that: (1) a 

reasonable criminal history background check using a reputable commercial service was 

conducted; (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; and 

(3) such sponsoring registrant shall maintain, in accordance with Commission Regulation 1.31, 

records documenting that such criminal history background check was performed and the results 

thereof.

Accordingly, the Division will not recommend that the Commission commence any 

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 submits a Form 8-R for each Non-U.S. Associated Person with the 

certification described above, and 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. This position is, 

however, subject to compliance with the condition that the sponsoring FCM, RFED, IB, CPO, 

CTA, or leverage transaction merchant keeps a copy of the certification, together with all 

supporting documents, pursuant to Commission Regulation 1.31. The Division notes that it will 

continue to explore alternatives for the Fingerprint Requirement in the context of Non-U.S. 

Associated Persons, and that in the future it may revisit the process set forth in this letter 

(without prejudice to sponsoring registrants that may already have availed themselves of the 

relief provided herein).

This letter is applicable to Commission registrants solely in connection with the 

requirement to provide fingerprints for Non-U.S. Associated Persons that are sponsored by 

FCMs, RFEDs, IBs, CPOs, CTAs, and leverage transaction merchants. It does not excuse any of 

these registrants from compliance with any other applicable requirements contained in the Act or 

in the Commission’s regulations issued thereunder.

The no-action relief provided herein contains a collection of information, as that term is 

defined in the Paperwork Reduction Act.5 Therefore, a control number for the collection must be 

obtained from the Office of Management and Budget. In accordance with 44 U.S.C.

§ 3506(c)(2)(A) and 5 C.F.R. §§ 1320.8 and 1320.10, the Division will, by separate action, 

prepare an information collection request for review and approval by OMB, and will publish in 

the Federal Register a notice and request for public comments on the collection burdens 

associated with the no-action relief. If approved, a Commission registrant may not rely on the 

Division’s determination not to recommend an enforcement action to the Commission unless the 

Commission registrant provides the information the Division has determined is essential to the 

provision of no-action relief.

This letter is based upon the representations made to us and is subject to compliance with 

the conditions set forth above. Any different, changed or omitted material facts or circumstances 

might render this letter and the no-action position taken herein void. Further, this letter and the 

 

5

44 U.S.C. §§ 3501 et seq.
Page 4

position taken herein represent the views of this Division only, and do not necessarily represent 

the views of the Commission or of any other office or division of the Commission.

If you have any questions concerning this correspondence, please contact Katherine 

Driscoll, Associate Director, at (202) 418-5544 or Vickie Olafson, Special Counsel, at (202) 

418-6771.

Very truly yours,

Gary Barnett

Director

Division of Swap Dealer and

Intermediary Oversight

cc: Regina Thoele, Compliance

National Futures Association, Chicago

Jamila A. Piracci, OTC Derivatives

National Futures Association, New York