On May 22, 2014, the CFTC issued No-action Letter 14-72 (No-action 14-72), which provides relief to unregistered members of designated contract markets (DCMs) and swap execution facilities (SEFs) from compliance with certain aspects of CFTC Regulation 1.35(a) (17 CFR 1.35(a)). CFTC Regulation 1.35(a) requires that members of DCMs or SEFs "shall keep full, complete, and systematic records, which include all pertinent data and memoranda, of all transactions relating to its business of dealing in commodity interests and related cash or forward transactions." Regulation 1.35(a) also requires that these records be kept in a form that is identifiable and searchable by transaction. This recordkeeping requirement is applicable to all oral and written communications, including phone calls, voicemails, instant messages, e-mails and other digital and electronic media.

However, the requirement to record oral communications does not apply to certain entities, including any member of a DCM or SEF that is not registered or required to be registered with the CFTC in any capacity. Unregistered market participants raised concerns that text messages, instant messages and other electronic communications have largely replaced telephone communications, and that these electronic communications are difficult to retain and store in a searchable manner. In response, the CFTC issued limited no-action relief under No-action 14-72, which relieves DCM and SEF members that are not, and are not required to be, registered with the CFTC from recording text messages and keeping recorded text messages in a searchable manner. This no-action relief does not apply to other electronic communications that are included in the recordkeeping requirement, such as instant messages and e-mails,

This relief will remain effective until the effective date of any final CFTC action with respect to the issues raised that prompted the release of No-action 14-72.

For more information on Dodd-Frank recordkeeping requirements, see Practice Note, US Derivatives Regulation: CFTC Swap Data Reporting and Recordkeeping Rules.