Federal Register / Vol. 65, No. 80 / Tuesday, April 25, 2000 / Rules and Regulations 24127

1 29 U.S.C. 1002(33) (1994).

2 65 FR 10939, corrected at 65 FR 12318 (March

8, 2000).

3See 65 FR 10939 at 10940–41.

4 29 U.S.C. 1001 (1994 and Supp. III 1997) and

1301 (1994), respectively.

5See 65 FR 10939 at 10941–42.

6Pub. L. No. 104–290, 110 Stat. 3416 (1996).

7See 65 FR 10939 at 10942. This exemption has

been codified at 15 U.S.C. 80a–3(c)(14) (Supp II

1996).

8 In its footnote to this statement, the Commission

explained that:

If a collective investment vehicle (such as a

Church Plan) is not a commodity pool, the operator

of the vehicle would not be a CPO. The operator

would nonetheless be a person for all other

purposes of the [Commodity Exchange Act (‘‘Act’’)]

and CFTC rules—e.g., it would be subject to the

general antifraud provisions of section 4b of the

Act, 7 U.S.C. 6b(1994), and to the large trader

reporting requirements of Part 18 of the regulations.

If a collective investment vehicle is a pool, in

addition to being a person for the purposes of the

Act and the rules, its operator would be a CPO

subject to all provisions of the Act and Commission

rules applicable to CPOs regardless of registration

status—e.g., to the special antifraud provisions for

CPOs (and [commodity trading advisors (‘‘CTAs’’)]

in section 4o of the Act, 7 U.S.C. 6o (1994), the

operational requirements for CPOs in Rule 4.20 and

the advertising requirements for CPOs (and CTAs)

in Rule 4.41.

In this regard, the Commission wishes to

emphasize that the status of a collective investment

vehicle as a pool or a ‘‘non-pool’’ does not affect

the registration or Part 4 requirements of any CTA

to the vehicle. But see Rule 4.14(a)(8), which makes

available an exemption from CTA registration to

certain registered investment advisers who, among

other things, provide commodity interest trading

advice to Rule 4.5 trading vehicles in a manner

solely incidental to their business of providing

securities advice to those vehicles. 65 FR 10939 at

10942, n.26.

9 65 FR 10939 at 10942.

(f) For all models of the Boeing 737,

the flight cycle implementation time is

60,00 flights.

(g) For all models of the Boeing 747,

the flight cycle implementation time is

15,000 flights.

(h) For all models of the McDonnell

Douglas DC–8, the flight cycle

implementation time is 30,000 flights.

(i) For all models of the McDonnell

Douglas DC–9/MD–80, the flight cycle

implementation time is 60,000 flights.

(j) For all models of the McDonnell

Douglas DC–10, the flight cycle

implementation time is 30,000 flights.

(k) For all models of the Lockheed L–

1011, the flight cycle implementation

time is 27,000 flights.

(l) For the Fokker F–28 Mark 1000,

2000, 3000, and 4000, the flight cycle

implementation time is 60,00 flights.

Issued in Washington, DC, on April 19,

2000.

Jane F. Garvey,

Administrator of Federal Aviation

Administration (FAA).

[FR Doc. 00–10220 Filed 4–24–00; 8:45 am]

BILLING CODE 4910–13–M

COMMODITY FUTURES TRADING

COMMISSION

17 CFR Part 4

RIN 3038–AB34

Commodity Pool Operators; Exclusion

for Certain Otherwise Regulated

Persons From the Definition of the

Term ‘‘Commodity Pool Operator’’

AGENCY: Commodity Futures Trading

Commission.

ACTION: Final rule.

SUMMARY: The Commodity Futures

Trading Commission (‘‘Commission’’or

‘‘CFTC’’) is adopting Rule 4.5(a)(4)(v),

which adds a plan defined as a church

plan in Section 3(33) of Title I of the

Employee Retirement Income Security

Act of 1974 (‘‘ERISA’’) 1 (‘‘Church

Plan’’) to the types of employee benefit

plans that Rule 4.5(a)(4) currently

provides shall not be construed to be

commodity pools. The CFTC also is

adopting conforming amendments to

Rule 4.5(a)(4).

EFFECTIVE DATE: April 25, 2000.

FOR FURTHER INFORMATION CONTACT:

Barbara S. Gold, Assistant Chief

Counsel, or Christopher W. Cummings,

Special Counsel, Division of Trading

and Markets, Commodity Futures

Trading Commission, Three Lafayette

Center, 1155 21st Street, NW.,

Washington, DC 20581. Telephone:

(202) 418–5450.

SUPPLEMENTARY INFORMATION: On March

1, 2000 the Commission published for

comment proposed amendments to Rule

4.5(a)(4)(the ‘‘Proposal’’.2 The sole

substantive amendment the Commission

proposed was to add a plan defined as

a church plan in section 3(33) of the

Employee Retirement Income Security

Act of 1974 (‘‘ERISA’’) to the types of

employee benefit plans that the rule

provided shall not be construed to be

commodity pools. This was proposed to

be accomplished by adding a new

paragraph (a)(4)(v) to the rule. In

proposing this action, the Commission

discussed generally the history of Rule

4.5,3 it noted that Congress had

exempted Church Plans from coverage

under Titles I and IV of ERISA 4 ‘‘to

avoid excessive Government

entanglement with religion in violation

of the First Amendment to the

Constitution’’ 5 and it further noted that

more recently, in connection with the

adoption of the National Securities

Markets Improvement Act of 1996

(‘‘NSMIA’’),6 Congress provided that

Church Plans are not investment

companies under the Investment

Company Act of 1940 and therefore that

they are not subject to registration as

such.7

The various technical amendments

the Commission proposed to Rule

4.5(a)(4) were to conform the

punctuation of the rule and to

accommodate grammatically proposed

paragraph 4.5(a)(4)(v). The Commission

did not propose to change the text of

any of the paragraphs Rule 4.5(a)(4)(i)–

(iv).

The Commission specifically

requested comment on two aspects of

the proposal. As the Commission stated:

The proposal would be broader than the

[commodity pool operator (‘‘CPO’’)]

registration no-action positions that its staff

previously has issued to the operators of

Church Plans.8 Also, under this proposal the

operators of Church Plans would not need to

file a Notice of Eligibility to claim relief and

they would not need to restrict their Plans’

activities to the operating criteria of Rule

4.5(c). The Commission believes the breadth

of its proposal is appropriate in light of

Congress’ rationale in excluding Church

Plans from coverage under Titles I and IV of

ERISA. The Commission nonetheless

requests comment on whether rather than

adding Church Plans to the list of plans that

should not be construed to be a pool as

proposed, the Commission should include

the operator of a Church Plan as an eligible

person who may claim an exclusion from the

CPO definition. The Commission also

requests comment on whether relief under

Rule 4.5 should be available solely to those

Church Plans that have not made an election

under Section 410(d) of the Internal Revenue

Code [‘‘IRC’’] to be subject to certain

provision of ERISA.9

The Commission received two

comment letters on the Proposal.

Neither of the letters the Commission

received on the proposed amendments

to Rule 4.5(a)(4) addressed specifically

the two issues on which the

Commission had requested comment.

One letter, from counsel to a Church

Plan, expressed strong approval of the

Proposal. The letter also stated that an

additional support for the Proposal’s

adoption is that the rights of Church

Plan participants are fully protected by

the exclusive benefits requirements

imposed on Church Plans by the IRC.

The other letter, from a member of the

commodities bar, asked the Commission

to adopt a policy and implementing

regulations to the effect that ‘‘a

collective investment vehicle using

commodity interests solely for

recognized risk management purposes is

not ‘commodity pool’ within the intent

of the [commodity pool operator]

definition in section 1a(4) of the

Commodity Exchange Act.’’ While this

comment is outside the scope of this

24128 Federal Register / Vol. 65, No. 80 / Tuesday, April 25, 2000 / Rules and Regulations

10 44 U.S.C. 3501 et seq. (Supp. II 1996).

11 5 U.S.C. 601 et seq. (1994 and Supp. II 1996).

12 5 U.S.C. 605(b) (1994).

13 5 U.S.C. 553(d) (1994).

rulemaking, the Commission does

intend to consider this issue in the near

future.

In light of the comments received, the

Commission is adopting the

amendments to Rule 4.5(a)(4) as

proposed.

III. Related Matters

A. Paperwork Reduction Act

When publishing proposed rules, the

Paperwork Reduction Act of 1995

(‘‘PRA’’) 10 imposes certain

requirements on Federal agencies

(including the Commission) in

connection with their conducting or

sponsoring any collection of

information as defined by the PRA. In

compliance with the PRA, the

Commission previously has submitted

Rule 4.5 in proposed form and its

associated information collection

requirements to the Office of

Management and Budget. The Office of

Management and Budget has approved

the collection of information of which

this proposed rule is a part through

September 30, 2001, OMB Control

Number 3038–0005: Rules Relating to

the Operations and Activities of

Commodity Pool Operators and

Commodity Trading Advisors and to

Monthly Reporting by Futures

Commission Merchants. While this

proposed rule has no burden, the group

of rules (3038–0005) of which it is a part

has the following burden:

Average Burden Hours Per Response:

7.49.

Number of Respondents: 6,949.

Frequency of Response: Monthly,

Quarterly, Annually, On Occasion.

Copies of the OMB approved

information collection package

associated with this rule are available

from the Desk Officer, CFTC, Office of

Management and Budget, Room 10202,

NEOB, Washington, DC, 20503, (202)

395–7340.

B. Regulatory Flexibility Act

The Regulatory Flexibility Act

(‘‘RFA’’) 11 requires each federal agency

to consider in the course of proposing

substantive rules the effect of those

rules on small entities. The definitions

of small entities that the Commission

has established for this purpose do not

address the persons and qualifying

entities set forth in Rule 4.5 because, by

the very nature of the rule, the

operations and activities of such

persons and entities generally are

regulated by Federal and State

authorities other than the Commission.

Assuming, arguendo, that Church Plans

would be small entities for purposes of

the RFA, the Commission believes that

the amendment to Rule 4.5(a)(4) would

not have a significant economic impact

on them because it would not require

the filing of a notice containing

specified operating criteria with the

Commission to claim the relief available

under the rule. Moreover, the

Commission notes that the amendment

potentially would relieve a greater

number of persons (i.e., the operators of

Church Plans) from the requirement to

register as a CPO and from the

disclosure, reporting and recordkeeping

requirements applicable to registered

CPOs.

Accordingly, the Chairman, on behalf

of the Commission, certifies pursuant to

Section 3(a) of the RFA 12 that amended

Rule 4.5(a)(4) will not have a significant

economic impact on a substantial

number of small entities.

C. Administrative Procedure Act.

The Administrative Procedure Act

provides that the required publication of

a substantive rule shall be made not less

than 30 days before its effective date,

but provides an exception for ‘‘a

substantive rule which grants or

recognizes an exemption or relieves a

restriction.’’ 13 Because Rule 4.5(a)(4)(v)

provides that Church Plans shall not be

construed to be pools, the operators of

Church Plans are not CPOs and they are

not subject to regulation as CPOs under

the Act. Accordingly, the Commission

has determined to make the proposed

amendments to Rule 4.5 effective

immediately.

List of Subjects in 17 CFR Part 4

Commodity pool operators,

Commodity futures.

In consideration of the foregoing and

pursuant to the authority contained in

the Commodity Exchange Act and, in

particular, sections 1a(4), 4k, 4l, 4m, 4n,

4o and 8a, 7 U.S.C. 1a(4), 6k, 6l, 6m, 6n,

6o and 12a, the Commodity Futures

Trading Commission hereby amends

Chapter I of Title 17 of the Code of

Federal Regulations as follows:

PART 4—COMMODITY POOL

OPERATORS AND COMMODITY

TRADING ADVISORS

1. The authority citation for Part 4

continues to read as follows:

Authority: 7 U.S.C. 1a, 2, 4, 6b, 6c, 6l, 6m,

6n, 6o, 12a and 23.

2. In § 4.5, in paragraph (a)(4)

introductory text, the proviso text is

republished and paragraph (a)(4) is

amended by removing the word ‘‘and’’

at the end of paragraph (a)(4)(ii), by

removing the period and adding a semicolon at the end of paragraph (a)(4)(iii),

by removing the period at the end of

paragraph (a)(4)(iv) and adding ‘‘; and’’

in its place, and by adding paragraph

(a)(4)(v) to read as follows:

§ 4.5 Exclusion for certain otherwise

regulated persons from the definition of the

term ‘‘commodity pool operator.’’

(a) * * *

(4) * * * Provided, however, That for

purposes of this § 4.5 the following

employee benefit plans shall be

construed to be pools:

* * * * *

(v) A plan defined as a church plan

in Section 3(33) of title I of the

Employee Retirement Income Security

Act of 1974 with respect to which no

election has been made under 26 U.S.C.

410(d).

* * * * *

Issued in Washington, D.C. on April 18,

2000, by the Commission.

Catherine D. Dixon,

Assistant Secretary of the Commission.

[FR Doc. 00–10087 Filed 4–25–00; 8:45 am]

BILLING CODE 6351–01–M

OCCUPATIONAL SAFETY AND

HEALTH REVIEW COMMISSION

29 CFR Part 2201

Regulations Implementing the

Electronic Freedom of Information Act

AGENCY: Occupational Safety and Health

Review Commission.

ACTION: Interim final rule.

SUMMARY: The Occupational Safety and

Health Review Commission is revising

its Freedom of Information Act (FOIA)

regulations to conform with the

Electronic Freedom of Information Act

Amendments of 1996 (EFOIA). The

EFOIA specifies how the FOIA applies

to records maintained in hard copy or

electronic format. The rule implements

statutory provisions that broaden public

access to government information by

making more records available in

electronic format. The rule implements

provisions that recognize the difficulty

in responding to requests in the 10

working days formerly required and

extends that time to 20 working days. It

also provides procedures for discussing

with FOIA requesters ways of tailoring

requests to improve responsiveness.

This interim rule amends the Review

Commission’s FOIA regulations to

comply with the requirements of the

new statute. Certain other changes have