United States: CFTC Proposes Amendments To Recordkeeping Requirements

Last Updated: February 9 2017
Article by Derivatives In Review

On January 12, the Commodity Futures Trading Commission ("CFTC") unanimously approved the proposal of numerous amendments to CFTC Regulation 1.31, the regulation that sets forth the recordkeeping requirements for records required to be kept under the U.S. Commodity Exchange Act (the "Act") and the CFTC's regulations, including with respect to swaps.1  The proposed amendments are largely intended to modernize and make technology-neutral the form and manner in which regulatory records are kept.2

The last major revision of Regulation 1.31 was made in 1999, when records were largely kept in paper form and before the prevalence of advanced electronic information systems.3  Through the proposed amendments, the CFTC intends to update, reorganize and, effectively, re-write Regulation 1.31, while maintaining its ability to examine and inspect required records.4

The proposed amendments provide for three new important defined terms:5

  • Records entity means any person required by the Act or [CFTC] regulations . . . to keep regulatory records.
  • Regulatory records means all books and records required to be kept by the Act or [CFTC] regulations . . . . including any record of any correction or other amendment to such books and records, provided that, with respect to such books and records stored electronically, regulatory records shall also include:

(i) All data produced and stored electronically that describes, directly or indirectly, the characteristics of such books and records, including, without limitation, data that describes how, when, and, if relevant, by whom such electronically stored information was collected, created, accessed, modified, or formatted; and

(ii) Any data necessary to access, search, or display any such books and records.

  • Electronic regulatory records means all regulatory records other than regulatory records exclusively created and maintained by a records entity on paper.

The proposed amended Regulation 1.31 would require each records entity to establish, maintain and implement written policies and procedures reasonably designed to ensure that the records entity complies with its recordkeeping obligations.  Such policies are to provide for appropriate training of officers and personnel regarding their responsibility for ensuring compliance with recordkeeping obligations, as well as regular monitoring of such compliance.6

Unless otherwise specified in the Act or applicable CFTC regulations, the proposed amended Regulation 1.31 would require a records entity to keep regulatory records (other than oral communications) of any swap or related cash or forward transaction from the date the regulatory record was created until the termination, maturity, expiration, transfer, assignment, or novation date of the transaction and for a period of not less than five years after such date.  In contrast, a records entity that is required to retain oral communications would be required to keep such regulatory records for a period of not less than one year from the date of such communication.  Regulatory records other than those of any swap or related cash or forward transaction, or of any oral communication, would be required to be kept for a period of not less than five years from the date on which such records were created.  Moreover, records entities would be required to keep regulatory records exclusively created and maintained on paper readily accessible for no less than two years, but would be required to keep electronic regulatory records for the duration of the required recordkeeping period.7

Each records entity generally would be required under proposed amended Regulation 1.31 to retain regulatory records in a form and manner that ensures the authenticity and reliability of such regulatory records in accordance with the Act and applicable CFTC regulations.  Each records entity that maintains electronic regulatory records would be required to establish appropriate systems and controls to ensure the authenticity and reliability of such records, including, inter alia, systems that maintain the security, signature, chain of custody elements and data as necessary to ensure the authenticity of the information contained in such records and to monitor compliance with recordkeeping requirements, and systems that ensure the availability of such records in the event of an emergency or other disruption of the records entity's electronic record retention system.8

Proposed amended Regulation 1.31 would require a records entity, at its own expense, to produce or make accessible for inspection all regulatory records to any representative of the CFTC or United States Department of Justice.  A records entity would be required to produce regulatory records exclusively created and maintained on paper promptly upon a request by a CFTC representative.  A request from a CFTC representative for electronic regulatory records would be required to specify a "reasonable form and medium" in which the records entity must produce such records, and the records entity would be required to produce such records in the form and medium requested promptly following such a request.  A records entity may provide an original regulatory record for reproduction, which a CFTC representative may temporarily remove from such record entity's premises for this purpose but, in such a case, upon request, the CFTC representative would be required to issue to the records entity a receipt for such record.9

The comment period for the proposed amendments ends on March 20.


1 Recordkeeping, 82 Fed. Reg. 6,356 (Jan. 19, 2017).

2 The term "technology-neutral" is intended to mean that the regulation should withstand technological developments. See 82 Fed. Reg. at 6,358.

3 As then-CFTC Chairman Timothy Massad noted in his statement at the time the proposed amendments were issued, "[i]n this age where terabytes of storage easily fit in your pocket, our rules should not refer to microfiche or require paper records." 82 Fed. Reg. at 6,367.

4 Note, however, that the proposed amendments to Regulation 1.31 do not address requirements relating to "source code," which are addressed in the CFTC's proposed Regulation AT. For additional information on proposed Regulation AT, please click here.

5 82 Fed. Reg. at 6,365-66 (proposed Regulation 1.31(a)).

6 82 Fed. Reg. at 6,366 (proposed Regulation 1.31(b)).

7 Id. (proposed Regulation 1.31(c)).

8 Id. (proposed Regulation 1.31(d)).

9 Id. (proposed Regulation 1.31(e)).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.