Federal Register: CFTC Requests Comments on Proposal to “Modernize” Recordkeeping Requirements

The CFTC requested comment on a proposal to modernize certain recordkeeping obligations. The proposal would remove a requirement that electronic records be kept in their original format, and would allow recordkeepers to reduce costs associated with paper records through the utilization of “advances in information technology.” The request for comments was published in the Federal Register.

Comments on the proposed amendments must be submitted by March 20, 2017.

Lofchie Comment: The rule proposal would provide welcome updates to the requirements for the storage of electronic records under CFTC Rule 1.31. Significantly, the proposal would eliminate many of the prescriptive requirements of the current rule, including the need for firms to use outdated “write once, read many” (or “WORM”) storage media. Instead, the proposed new rule would adopt a technology-neutral requirement that electronic records be maintained in ways that preserved their “authenticity and reliability.” In addition, the proposal would eliminate the need for firms that store records electronically to (i) appoint a “technical consultant” that agrees to provide the records to the CFTC, and (ii) file a notice with the CFTC regarding compliance with Rule 1.31. However, the proposal also would require firms to implement written policies to assure compliance with the new requirements, including policies for training personnel, and for regular compliance monitoring.

The CFTC’s recent move to a more principles-based approach presents an interesting question: will the SEC follow the CFTC’s lead and modernize SEC Rule 17a-4 along similar lines?

 

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