CFTC approves final rule requiring recording of oral communications

Purpose – This paper aims to address amendments to the Commodity Futures Trading Commission (CFTC) recordkeeping rules that will require certain market participants to maintain records of all oral communications leading to the execution of a “commodity interest” transaction that are communicated by telephone, voicemail or mobile device. The paper also seeks to address the CFTC's revised rules expanding the current recordkeeping requirements to include written communications related to swap transactions. Design/methodology/approach – The paper reviews the revised rules, adopting release and industry commentary and explains how the requirements of CFTC Regulations 1.31 and 1.35 will be applied to futures commission merchants (FCMs), certain introducing brokers (IBs), certain members of a designated contract market (DCM) or swap execution facility (SEF), and retail forex dealers (RFEDs). Findings – FCMs, certain IBs, certain members of a DCM or SEF, and RFEDs must comply with the oral communications recordkeeping requirements no later than December 21, 2013. FCMs, IBs, all members of a DCM or SEF, and RFEDs must comply with the CFTC's revised recordkeeping rules for written communications no later than February 19, 2013. Practical implications – All FCMs, IBs, members of a DCM or SEF, and RFEDs impacted by the rule should prepare to maintain records of all covered written and oral communications. If it is technologically or economically impractical for a market participant to comply with the requirement to record all oral communications that lead to a commodity interest transaction by the compliance date, the participant should request an alternative compliance schedule. Originality/value – This paper provides practical guidance from experienced financial services lawyers.