CFTC Staff Letter 94-62: No-Action Relief from CPO Registration for Fiduciaries of an ERISA Retirement Plan

DIVISION OF
TRADING AND MARKETS
COMMODITY FUTURES TRADING COMMISSION 2033 K Street, NW. Washington, DC 20581 (202) 254-8955 (202) 254- 8010 Facsimile June 1, 1994 Re: Request for CPO Registration No-Action Position Dear This is in response to your letter dated March 11, 1994, to the Division of Trading and Markets ( 11 Division11 ) of the Commodity Futures Trading Commission ( 11 Commission11 ), as supplemented by your correspondence dated March 31, 1994, and by telephone conversations with Division staff. You request, on behalf of 11 X11 , a registered futures commission merchant ( 11 FCM 11 ), relief from commodity pool operator ( 11 CP0 11 ) registration requirements in connection with the retirement plan (the 11 Plan 11 ) maintained by 11 X11 on behalf of its employees. Based upon the representations contained in your letter, as supplemented, we understand that the facts are as follows. The Plan is a defined contribut,ion plan administered by 11 X11 for the benefit of its employees.~/ The Plan is subje~t to Title I of the Employee Retirement Income Security Act of 1974 ( 11 ERISA11 ) and is qualified under section 401(k) of the Internal Revenue Code. The Plan was established by 11 X11 as a vehicle for providing tax￾deferred retirement income for the employees of 11 X11 • It was not created by 11 X11 as means to raise funds for 11 X11 to manage or to be the repository of financial products which 11 X11 might create or sell to the Plan. 11 X11 receiv~s no fees or income from employee participation in the Plan.~/ The Plan is 11 named fiduciary 11 administered by (1) 11 X11 , of the Plan within the which serves meaning of as the
Section
~I A defined contribution plan is a plan in which the benefit ultimately provided to the participants is dependent upon amounts contributed to their accounts and the earnings credited to such accounts. ~~ As an FCM, however, 11 X11 does receive commissions on the trades that it clears on behalf of any commoO.ity pool in which its employees may invest. See infra note 4.