Prior to the Dodd-Frank Act, few considered securitization vehicles commodity pools. But after the Dodd-Frank Act – and, in particular, after passage of various CFTC rules governing swaps trading
– a question has arisen in the structured finance world as to whether certain securitization vehicles that use swaps are commodity pools. The answer matters because if such securitization vehicles are commodity pools, the vehicles would be subject to CFTC regulation and their operators would be subject to CFTC registration (unless an exemption is available). In turn, CFTC regulation is complicated and CFTC registration can be onerous. See, e.g., “So You Don’t Want to Take the Series 3 Exam? Alternatives to the General Proficiency Requirement for Associated Persons of Commodity Pool Operators and Commodity Trading Advisors
,” Hedge Fund Law Report, Vol. 5, No. 37 (Sep. 27, 2012). Accordingly, the American Securitization Forum (ASF) and The Securities Industry and Financial Markets Association (SIFMA and, together with ASF, Applicants) recently requested guidance from the CFTC’s Division of Swap Dealers and Intermediary Oversight concerning these issues. This article summarizes the interpretive guidance provided by the CFTC in response to the Applicants’ request. Also, this article includes insight from Sidley Austin partner Jonathan Miller on the guidance and its implications for the registration and filing obligations (including potential Form PF filing obligations) of operators of securitization vehicles.