Federal Register / Vol. 76, No. 96 / Wednesday, May 18, 2011 / Rules and Regulations 28641 

1 17 CFR 4.12 and 4.13. Commission regulations 

may be accessed through the Commission’s Web 

site, at http://www.cftc.gov. 

2 75 FR 54794. 

3 7 U.S.C. 1 et seq. (2006), as amended by The 

Dodd Frank Wall Street Reform and Consumer 

Protection Act. Public Law 111–203, 124 Stat. 1376 

(2010). The Act similarly may be accessed through 

the Commission’s Web site. 

4 75 FR 54794. 

5See 75 FR 54794, at 54794–95. The Commission 

explained the origin and use of the term 

‘‘Commodity ETF’’. 

6 Id. at 54795–96. 

7Public Law 107–204, 116 Stat. 745, enacted July 

30, 2002. See Section 10A(m) of the Securities 

Exchange Act of 1934 (Exchange Act), 78j–1(m) 

(2006), and Rule 10A–3 under the Exchange Act, 17 

CFR 240.10A–3 (2010). 

8 75 FR at 54795. 

9See 75 FR at 54796–98. 

DEPARTMENT OF TRANSPORTATION 

Federal Aviation Administration 

14 CFR Part 71 

[Docket No. FAA–2010–1027; Airspace 

Docket No. 10–AGL–15] 

Amendment of Class E Airspace; 

Indianapolis Executive Airport, IN 

Correction 

In rule document 2011–9404 

appearing on pages 22013–22014 in the 

issue of Wednesday, April 20, 2011, 

make the following corrections: 

§ 71.1 [Corrected] 

■ 1. On page 22014, in the second 

column, on the 4th line from the bottom 

of the page, ‘‘86°102′7′′ W’’ should read 

‘‘86°10′27′′ W’’. 

■ 2. On the same page, in the third 

column, on the 4th line from the top of 

the page, ‘‘86°092′0′′ W’’ should read 

‘‘86°09′20′′ W’’. 

[FR Doc. C1–2011–9404 Filed 5–17–11; 8:45 am] 

BILLING CODE 1505–01–D 

COMMODITY FUTURES TRADING 

COMMISSION 

17 CFR Part 4 

RIN 3038–AC46 

Commodity Pool Operators: Relief 

From Compliance With Certain 

Disclosure, Reporting and 

Recordkeeping Requirements for 

Registered CPOs of Commodity Pools 

Listed for Trading on a National 

Securities Exchange; CPO Registration 

Exemption for Certain Independent 

Directors or Trustees of These 

Commodity Pools 

AGENCY: Commodity Futures Trading 

Commission. 

ACTION: Final rule. 

SUMMARY: The Commodity Futures 

Trading Commission (Commission or 

CFTC) is adopting amendments to its 

regulations as they affect certain 

commodity pool operators (CPOs) of 

commodity pools whose units of 

participation are listed and traded on a 

national securities exchange 

(Amendments). Specifically, this action 

codifies the relief from certain 

disclosure, reporting, and recordkeeping 

requirements that Commission staff 

previously had issued to these CPOs on 

a case-by-case basis. It also codifies 

relief from the CPO registration 

requirement for certain independent 

directors or trustees of actively-managed 

commodity pools that Commission staff 

similarly has issued. 

DATES: Effective date: June 17, 2011. 

FOR FURTHER INFORMATION CONTACT: 

Christopher W. Cummings, Special 

Counsel, Division of Clearing and 

Intermediary Oversight, or Barbara S. 

Gold, Associate Director, Division of 

Clearing and Intermediary Oversight, 

Commodity Futures Trading 

Commission, 1155 21st Street, NW., 

Washington, DC 20581, telephone 

number: (202) 418–5450; facsimile 

number: (202) 418–5528; and electronic 

mail: ccummings@cftc.gov, or 

bgold@cftc.gov, respectively. 

SUPPLEMENTARY INFORMATION: 

I. Background 

In order to make generally available 

the relief that Commission staff 

previously had issued on a case-by-case 

basis to individual CPOs of publiclyoffered, exchange-listed pools, on 

September 9, 2010, the Commission 

published in the Federal Register 

proposed amendments to its Regulations 

4.12 and 4.13 1 (Proposing Release).2

The Proposing Release commenced by 

explaining the history and background 

of the regulation of CPOs by the 

Commission under the Commodity 

Exchange Act (Act) 3 and the 

background and development of various 

statutory and regulatory provisions 

granting relief from CPO regulation. 

With respect to this relief the 

Commission stated: 

In implementing its statutory mandate to 

regulate the activities of CPOs, the 

Commission has endeavored to refine its 

regulations as appropriate to respond to 

changing market conditions in a manner 

consistent with customer protection. In 

addition to the issuance of relief by 

Commission staff on a case-by-case basis to 

facilitate application of regulatory 

requirements to new market conditions, the 

Commission has provided certain 

exemptions for registered CPOs from various 

of the requirements of Part 4 of its 

regulations, and where appropriate, it has 

provided exemptions from the CPO 

registration requirement itself.4

The Proposing Release then went on 

to discuss the relatively recent 

development of publicly-offered 

commodity pools with units of 

participation listed on a national 

securities exchange (Commodity ETFs) 5

and to describe the numerous similar 

requests for relief from CPOs of 

Commodity ETFs that Commission staff 

had received, and to which they had 

favorably responded (Prior Relief 

Letters).6 Because the requests for relief 

and the Prior Relief Letters the staff had 

issued in response thereto had become 

fairly standardized and routine, the 

Commission proposed to amend the 

relevant regulations so as to make the 

relief generally available to all CPOs 

who meet the requisite criteria. 

Thus, the Commission proposed 

adding new paragraph (c) to Regulation 

4.12 that, subject to specified 

conditions, would permit the CPO of a 

Commodity ETF to claim relief from the 

specific Disclosure Document delivery 

and acknowledgment requirements of 

Regulation 4.21, the monthly Account 

Statement delivery requirement of 

Regulation 4.22, and the requirement to 

keep the CPO’s books and records at its 

main business address in Regulation 

4.23. In addition, the Commission 

proposed, subject to certain conditions, 

to exempt from CPO registration an 

independent director or trustee of a 

Commodity ETF, where that person was 

required to serve as a director or trustee 

solely for purposes of constituting and 

maintaining the audit committee 

required for actively-managed public 

companies (including actively-managed 

Commodity ETFs) under provisions of 

the Sarbanes-Oxley Act of 2002 7 (and 

Securities and Exchange Commission 

rules and exchange listing requirements 

adopted pursuant thereto) by adding 

new paragraph (a)(5) to Regulation 4.13. 

As the Proposing Release explained, 

then, the Commission’s actions were 

intended to respond to financial market 

developments in the limited context of 

CPOs whose units of participation in the 

pools they operated were listed for 

trading on a national securities 

exchange.8 The specific changes that the 

Commission proposed, as well as the 

rationale for those proposed changes, 

are set forth in the Proposing Release.9

In light of the generally favorable 

comments it received (discussed in 

Section II below), the Commission is 

adopting the Amendments essentially as 

proposed. In this regard, however, and 


wwoods2 on DSK1DXX6B1PROD with RULES_PART 1
28642 Federal Register / Vol. 76, No. 96 / Wednesday, May 18, 2011 / Rules and Regulations 

10 75 FR 54794 (footnotes omitted). 

11These comment letters are available on the 

Commission’s Web site at: http:// 

comments.cftc.gov/PublicComments/ 

CommentList.aspx?id=761. 

12 In the case of many Commodity ETFs, one or 

more registered broker dealers (Authorized 

Participants) contract with the CPO to purchase or 

redeem large blocks of Commodity ETF units as 

necessary to ensure that the unit price and the 

Commodity ETF’s net asset value do not diverge 

and create arbitrage opportunities. See e.g., CFTC 

Staff Letter 05–19 [2005–2007 Transfer Binder] 

Comm. Fut. L. Rep. (CCH) ¶30,164 (Nov. 10, 2005). 

13See 44 FR 25658 (May 2, 1979), where in 

interpreting newly-adopted Regulation 4.21 the 

Commission stated: 

The operator of a commodity pool is not required 

to provide a Disclosure Document [rule 4.21] to a 

person who purchases a unit of participation or 

interest in the pool from a pool participant if the 

pool operator did not solicit the purchase. 

14See, e.g., CFTC Staff Letter 05–19 [2005–2007 

Transfer Binder] Comm. Fut. L. Rep. (CCH) ¶ 30,164 

(Nov. 10, 2005), where the CPO in making its 

request characterized its pool as an ‘‘open end’’ 

fund, and CFTC Staff Letter 10–06 [Current Transfer 

Binder] Comm. Fut. L. Rep. (CCH) ¶ 31,557 (Mar. 

29, 2010), where the CPO characterized its pool as 

a ‘‘closed-end’’ fund. 

as the Commission stated in the 

Proposing Release, it is important to 

note that: 

[R]egardless of registration status, all 

persons who come within the CPO definition 

are subject to certain operational and 

advertising requirements under Part 4, to all 

other provisions of the Act and the 

Commission’s regulations prohibiting fraud 

that apply to CPOs, and to all other relevant 

provisions of the Act and the Commission’s 

regulations that apply to all commodity 

interest market participants, such as the 

general antifraud provisions, prohibitions 

against manipulations, and the trade 

reporting requirements.10

Accordingly, while the regulations 

being published by this Federal Register 

release provide an exemption from 

registration for certain CPOs, these 

persons nonetheless remain subject to 

the Commission’s jurisdiction. 

Consistent with past practice, in a 

separate document published elsewhere 

in today’s Federal Register, the 

Commission is issuing a Notice and 

Order that authorizes the National 

Futures Association to process: (1) 

Claims of exemption from certain Part 4 

requirements for CPOs with respect to 

Commodity ETFs; and (2) notices of 

exemption from registration as a CPO 

filed by independent directors or 

trustees of Commodity ETFs. 

II. The Comments on the Proposing 

Release 

The Commission received five 

comment letters on the Proposing 

Release, as follows: Two from CPOs of 

Commodity ETFs; one from a registered 

futures association; one from a national 

securities exchange; and one from a bar 

association.11 The commenters were 

uniformly in support of the 

amendments to the Commission’s 

regulations set forth in the Proposing 

Release. In the words of the registered 

futures association, for example, the 

proposed amendments would ‘‘provide 

the appropriate relief without materially 

impacting customer protection,’’ and 

they would serve as an appropriate 

modification of the Commission’s 

existing requirements by ‘‘promot[ing] 

innovation in the marketplace.’’ The 

national securities exchange provided 

similar comments, stating that the 

Proposing Release would ‘‘provide[] 

appropriate regulatory relief in response 

to the developing financial marketplace 

consistent with the goal of customer 

protection.’’ 

Commenters nonetheless requested 

certain clarifications and enhancements 

of the proposed amendments to the 

Commission’s regulations. 

A. Clarification of Relief From the 

Disclosure Document Delivery and 

Acknowledgment Requirements of 

Regulation 4.21 

Several commenters asked whether 

the Disclosure Document delivery and 

acknowledgment requirements would 

apply under proposed Regulation 

4.12(c) in various circumstances, 

including: Secondary market 

transactions not involving a direct 

purchase from the CPO; secondary 

market transactions not involving an 

underwriter or distributor; sales or 

resales by Authorized Participants;12

and purchases and resales of 

Commodity ETF shares by an 

underwriter or distributor. 

As a general principle, the 

Commission believes that secondary 

market transactions to which a CPO or 

any person acting as the agent of the 

CPO is not a party do not trigger the 

requirement for the CPO to deliver a 

Disclosure Document or to obtain a 

signed acknowledgment of receipt.13

For a CPO of a Commodity ETF who has 

claimed an exemption under Regulation 

4.12(c), the Disclosure Document 

delivery and acknowledgment 

requirements also do not apply in the 

case of transactions involving 

Authorized Participants or transactions 

involving the underwriters or 

distributors (acting as the CPO’s agents) 

of the Commodity ETF’s securities 

offering. Nevertheless, the CPO claiming 

relief under Regulation 4.12(c) is 

obligated to keep the Commodity ETF’s 

Disclosure Document current and 

posted on the CPO’s Web site, regardless 

of whether the CPO of the Commodity 

ETF has characterized its pool as an 

‘‘open-end’’ or ‘‘closed-end’’ fund.14

B. Requirement To Clearly Inform 

Prospective Participants of the CPO’s 

Internet Web Site 

One commenter sought guidance on 

the requirement in proposed Regulation 

4.12(c)(2)(i)(C) to‘‘[c]learly inform 

prospective pool participants of the 

Internet address of such Web site’’ on 

which the CPO has posted the 

Commodity ETF’s Disclosure Document. 

The commenter pointed out that, in the 

context of a pool whose shares are 

traded on a national securities 

exchange, the CPO typically does not 

know the identities of many prospective 

pool participants. 

In response, the Commission has 

revised the text of Regulation 

4.12(c)(2)(i)(C) to make clear that the 

CPO is required to clearly inform those 

prospective pool participants with 

whom it has contact of the Web site 

address. Additionally, and as proposed, 

the regulation requires the CPO to direct 

brokers, dealers and other selling agents 

to so inform prospective pool 

participants. Based on the 

representations made by the CPOs to 

whom the Prior Relief Letters were 

issued, and the Commission’s 

understanding of the Federal securities 

laws applicable to the sale of publiclyoffered, exchange-listed securities, the 

Commission expects that persons will 

purchase shares in a Commodity ETF 

through a registered broker or dealer. 

C. Request To Expand Relief From 

Regulation 4.22 To Include Annual 

Reports 

Another commenter asked that the 

CPO of a Commodity ETF claiming 

relief under proposed Regulation 4.12(c) 

be permitted to satisfy the Annual 

Report requirement under Regulation 

4.22(c) by providing the Commodity 

ETF’s Form 10–K on the same Web site 

where the CPO makes available the 

Commodity ETF’s Disclosure Document 

and monthly Account Statements. 

The Commission did not include such 

an amendment to Regulation 4.22 in the 

Proposing Release, and it is not 

including one in the Amendments. This 

is because the Commission believes that 

the benefits to Commodity ETF 

participants of a familiar, standardized, 

certified, annual report of the 

Commodity ETF’s financial condition 

outweigh the burden of, for example, 

ascertaining the names and addresses of 

participants at year-end and preparing 

and delivering the Annual Report (all of 

which the CPO has 90 days to 

accomplish). Accordingly, the CPO of a 

Commodity ETF claiming exemption 


wwoods2 on DSK1DXX6B1PROD with RULES_PART 1
Federal Register / Vol. 76, No. 96 / Wednesday, May 18, 2011 / Rules and Regulations 28643 

15Regulation 4.22(c) sets forth the basic 

requirement for distribution of the Annual Report. 

Regulations 4.22(d) through (i) contain additional 

provisions concerning the Annual Report, all of 

which remain applicable to the CPO. 

16 75 FR 54794, 54798. 

17 5 U.S.C. 601 et seq. 

18 47 FR 18618 (Apr. 30, 1982). 

19 Id. at 18619–20. 

under Regulation 4.12(c) remains 

subject to the Annual Report 

requirements of Regulation 4.22(c).15

D. Filing Requirement for Statement by 

an Alternate Recordkeeper 

The Commission also received a 

comment recommending that instead of 

filing with the National Futures 

Association (NFA), as proposed, the 

statement required of an alternate 

recordkeeper by proposed Regulation 

4.12(c)((2)(iii)(C), the CPO should be 

required ‘‘to maintain the statement as a 

business record and make it available to 

NFA’’ upon NFA’s request. 

In response, the Commission notes 

that the statement, whereby an alternate 

recordkeeper acknowledges its role, 

agrees to carry it out in compliance with 

Regulation 1.31, and agrees to keep the 

records it keeps open to inspection by 

Commission or Department of Justice 

representatives and available to pool 

participants, is a pre-requisite and 

condition precedent to effectiveness of 

relief from Regulation 4.23. Moreover, if 

for some reason, the books and records 

kept at the CPO’s main business address 

are unavailable, the statement would be 

inaccessible as well. Accordingly, the 

Commission is retaining the filing 

requirement of Regulation 

4.12(c)(2)(iii)(C). 

E. Clarification of Effect on Recipients of 

Prior Relief Letters 

In the Proposing Release the 

Commission stated that, after adoption 

of final regulations, a recipient of a Prior 

Relief Letter could continue to rely 

upon the Prior Relief Letter without 

taking any further action (such as filing 

a notice under Regulation 4.12(d)), so 

long as the requirements of the final 

regulations were no more restrictive 

than the requirements of the Prior Relief 

Letter to which the recipient was 

subject. One of the commenters asked 

for clarification of the words ‘‘no more 

restrictive.’’ 

Inasmuch as the requirements of 

Regulations 4.12(c) and 4.13(a)(5) as 

adopted are no more restrictive than 

those of any of the Prior Relief Letters, 

by this Federal Register release the 

Commission confirms that each 

recipient of a Prior Relief Letter may 

continue to rely upon that letter without 

taking any further action. Nevertheless, 

and as the Commission stated in the 

Proposing Release: 

[I]f the facts and representations upon 

which a Prior Relief Letter was based 

materially change, the [recipient of that Prior 

Relief Letter] will be required to file a 

[n]otice under the final rule, or cease 

engaging in the activities that prompted the 

request for the Prior Relief Letter.16

III. Related Matters 

A. Regulatory Flexibility Act 

The Regulatory Flexibility Act 

(RFA) 17 requires that agencies, in 

proposing rules, consider the impact of 

those rules on small businesses. The 

Commission has previously established 

certain definitions of ‘‘small entities’’ to 

be used by the Commission in 

evaluating the impact of its rules on 

such entities in accordance with the 

RFA.18 With respect to CPOs, the 

Commission has previously determined 

that a CPO is a small entity if it meets 

the criteria for exemption from 

registration under current Regulation 

4.13(a)(2).19 Therefore, the requirements 

of the RFA do not apply to CPOs who 

do not meet those criteria. The 

Commission believes that the 

Amendments will not place any 

burdens, whether new or additional, on 

CPOs who would be affected hereunder. 

This is because the certain of the 

Amendments provide disclosure, 

reporting and recordkeeping relief for 

more CPOs, and another Amendment 

provides registration relief. The 

Commission did not receive any 

comments relative to its analysis of the 

RFA in the Proposing Release. 

Therefore, the Chairman, on behalf of 

the Commission, hereby certifies, 

pursuant to 5 U.S.C. 605(b), that these 

regulations will not have a significant 

economic impact on a substantial 

number of small entities. 

B. Paperwork Reduction Act 

The final rule affects information 

collection requirements. As required by 

the Paperwork Reduction Act of 1995 

(44 U.S.C. 3507(d)), the Commission has 

submitted a copy of this section to the 

Office of Management and Budget for its 

review. The information collection 

burdens created by the Commission’s 

proposed rules, which were discussed 

in detail in the Proposing Release, are 

identical to the collective information 

collection burdens of the final rules. 

The Commission invited the public 

and other Federal agencies to comment 

on any aspect of the information 

collection requirements discussed 

above. The Commission received no 

comment on its burden estimates or on 

any other aspect of the information 

collection requirements contained in its 

proposing release. The affected 

collection is Collection 3038–0005 (part 

4 of the Commission’s regulations). 

C. Cost-Benefit Analysis 

Section 15(a) of the Act requires the 

Commission to consider the costs and 

benefits of its action before issuing a 

new regulation under the Act. By its 

terms, Section 15(a) does not require the 

Commission to quantify the costs and 

benefits of a new regulation or to 

determine whether the benefits of the 

proposed regulation outweigh its costs. 

Rather, Section 15(a) simply requires 

the Commission to ‘‘consider the costs 

and benefits’’ of its action. 

Section 15(a) further specifies that 

costs and benefits shall be evaluated in 

light of five broad areas of market and 

public concern: (1) Protection of market 

participants and the public; (2) 

efficiency, competitiveness, and 

financial integrity of futures markets; 

(3) price discovery; (4) sound risk 

management practices; and (5) other 

public interest considerations. 

Accordingly, the Commission could in 

its discretion give greater weight to any 

one of the five enumerated areas and 

could in its discretion determine that, 

notwithstanding its costs, a particular 

rule was necessary or appropriate to 

protect the public interest or to 

effectuate any of the provisions or to 

accomplish any of the purposes of the 

Act. 

The Commission has considered the 

costs and benefits of these new 

regulations in light of the specific 

provisions of Section 15(a) of the Act. 

The Commission has determined that 

the costs of the Amendments are not 

significant. While the Amendments are 

expected to lessen the burden that 

would otherwise be imposed upon 

CPOs of Commodity ETFs, market 

participants and members of the public 

will nonetheless be protected because 

any exemption of persons from 

regulatory requirements would be based 

on such factors as substituted 

compliance with other similar 

requirements. The Commission has 

determined that the benefits of the 

Amendments are substantial. The 

Amendments will promote efficiency in 

the markets by providing uniform 

standards for CPOs and by reducing 

duplicative regulation. 

The Commission requested comment 

on its application of these factors in the 

Proposing Release. No such comments 

were received. 

After considering the costs and 

benefits, the Commission has 

determined to adopt the Amendments. 


wwoods2 on DSK1DXX6B1PROD with RULES_PART 1
28644 Federal Register / Vol. 76, No. 96 / Wednesday, May 18, 2011 / Rules and Regulations 

List of Subjects in 17 CFR Part 4 

Advertising, Brokers, Commodity 

futures, Commodity pool operators, 

Commodity trading advisors, Consumer 

protection, Reporting and recordkeeping 

requirements. 

For the reasons presented above, the 

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. Section 4.12 is amended by: 

■ a. Revising the heading of paragraph 

(b); 

■ b. Revising the introductory text of 

paragraph (b)(1); 

■ c. Amending paragraph (b)(2) by 

adding a heading; 

■ d. Redesignating paragraphs (b)(3) 

through (b)(6) as paragraphs (d)(1) 

through (d)(4) and revising newly 

redesignated paragraphs (d)(1) 

introductory text, (d)(1)(iii)(A), 

(d)(1)(iii)(B), (d)(1)(iv), and (d)(2)(ii); 

and 

■ e. Adding new paragraph (c), to read 

as follows: 

§ 4.12 Exemption from provisions of part 

4. 

* * * * * 

(b) Exemption from Subpart B for 

certain commodity pool operators based 

on amount and nature of commodity 

interest trading. (1) Eligibility. Subject to 

compliance with the provisions of 

paragraph (d) of this section, any person 

who is registered as a commodity pool 

operator, or has applied for such 

registration, may claim any or all of the 

relief available under paragraph (b)(2) of 

this section if: 

* * * * * 

(2) Relief available to pool operator. 

* * * 

* * * * * 

(c) Exemption from Subpart B for 

certain commodity pool operators based 

on listing of pool participation units for 

trading on a national securities 

exchange. (1) Eligibility. Subject to 

compliance with the provisions of 

paragraph (d) of this section, any person 

who is registered as a commodity pool 

operator, or has applied for such 

registration, may claim any or all of the 

relief available under paragraph (c)(2) of 

this section if the units of participation 

in the pool for which it makes such 

claim: 

(i) Will be offered and sold pursuant 

to an effective registration statement 

under the Securities Act of 1933; and 

(ii) Will be listed for trading on a 

national securities exchange registered 

as such under the Securities Exchange 

Act of 1934. 

(2) Relief available to pool operator. 

The commodity pool operator of a pool 

whose units of participation meet the 

criteria of paragraph (c)(1) of this 

section may claim the following relief: 

(i) In the case of § 4.21, exemption 

from the Disclosure Document delivery 

and acknowledgment requirements of 

that section, Provided, however, that the 

pool operator: 

(A) Cause the pool’s Disclosure 

Document to be readily accessible on an 

Internet Web site maintained by the 

pool operator; 

(B) Cause the Disclosure Document to 

be kept current in accordance with the 

requirements of § 4.26(a); 

(C) Clearly inform prospective pool 

participants with whom it has contact of 

the Internet address of such Web site 

and direct any broker, dealer or other 

selling agent to whom the pool operator 

sells units of participation in the pool to 

so inform prospective pool participants; 

and 

(D) Comply with all other 

requirements applicable to pool 

Disclosure Documents under Part 4. The 

pool operator may satisfy the 

requirement of § 4.26(b) to attach to the 

Disclosure Document a copy of the 

pool’s most current Account Statement 

and Annual Report if the pool operator 

makes such Account Statement and 

Annual Report readily accessible on an 

Internet Web site maintained by the 

pool operator. 

(ii) In the case of § 4.22, exemption 

from the Account Statement distribution 

requirement of that section; Provided, 

however, that the pool operator: 

(A) Cause the pool’s Account 

Statements, including the certification 

required by § 4.22(h), to be readily 

accessible on an Internet Web site 

maintained by the pool operator within 

30 calendar days after the last day of the 

applicable reporting period and 

continuing for a period of not less than 

30 calendar days; and 

(B) Cause the Disclosure Document 

for the pool to clearly indicate: 

(1) That the information required to 

be included in the Account Statements 

will be readily accessible on an Internet 

Web site maintained by the pool 

operator; and 

(2) The Internet address of such Web 

site. 

(iii) In the case of § 4.23, exemption 

from the requirement to keep the books 

and records specified by that section at 

the pool operator’s main business office; 

Provided, however, that: 

(A) The books and records that the 

pool operator will not keep at its main 

business office will be maintained by 

one or more of the following: The pool’s 

administrator, distributor or custodian, 

or a bank or registered broker or dealer 

acting in a similar capacity with respect 

to the pool; 

(B) At the time it files electronically 

with the National Futures Association 

the notice required under paragraph (d) 

of this section, the pool operator files a 

statement that: 

(1) Identifies the name, main business 

address, and main business telephone 

number of the person(s) who will be 

keeping required books and records in 

lieu of the pool operator; 

(2) Sets forth the name and telephone 

number of a contact for each person 

who will be keeping required books and 

records in lieu of the pool operator; 

(3) Specifies, by reference to the 

respective paragraph of § 4.23, the books 

and records that such person will be 

keeping; and 

(4) Contains representations from the 

pool operator that: 

(i) It will promptly amend the 

statement if the contact information or 

location of any of the books and records 

required to be kept by § 4.23 changes, by 

identifying in such amendment the new 

location and any other information that 

has changed; 

(ii) It remains responsible for ensuring 

that all books and records required by 

§ 4.23 are kept in accordance with 

§ 1.31; 

(iii) Within forty-eight hours after a 

request by a representative of the 

Commission, it will obtain the original 

books and records from the location at 

which they are maintained, and provide 

them for inspection at the pool 

operator’s main business office; 

Provided, however, that if the original 

books and records are permitted to be, 

and are maintained, at a location 

outside the United States, its territories 

or possessions, the pool operator will 

obtain and provide such original books 

and records for inspection at the pool 

operator’s main business office within 

seventy-two hours of such a request; 

and 

(iv) It will disclose in the pool’s 

Disclosure Document the location of its 

books and records that are required 

under § 4.23. 

(C) At the time it files the notice 

required under paragraph (d) of this 

section, the pool operator files 

electronically with the National Futures 

Association a statement from each 

person who will be keeping required 


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books and records in lieu of the pool 

operator wherein such person: 

(1) Acknowledges that the pool 

operator intends that the person keep 

and maintain required pool books and 

records; 

(2) Agrees to keep and maintain such 

required books and records in 

accordance with § 1.31 of this chapter; 

and 

(3) Agrees to keep such required 

books and records open to inspection by 

any representative of the Commission or 

the United States Justice Department in 

accordance with § 1.31 of this chapter 

and to make such required books and 

records available to pool participants in 

accordance with § 4.23 of this chapter. 

* * * * * 

(d)(1) Notice of claim for exemption. 

Any registered commodity pool 

operator, or applicant for commodity 

pool operator registration, who desires 

to claim the relief available under 

paragraph (b) or (c) of this § 4.12 must 

file electronically a claim of exemption 

with the National Futures Association 

through its electronic exemption filing 

system. Such claim must: 

* * * * * 

(iii) * * * 

(A) The pool will be operated in 

compliance with paragraph (b)(1)(i) of 

this section and the pool operator will 

comply with the requirements of 

paragraph (b)(1)(ii) of this section; or 

(B) The pool will be operated in 

compliance with paragraph (c)(1) of this 

section; 

(iv) Specify the relief sought under 

paragraph (b)(2) or (c)(2) of this section, 

as the case may be, and 

* * * * * 

(2)(i) * * * 

(ii) The claim of exemption shall be 

effective upon filing; Provided, however, 

That any exemption claimed hereunder: 

(A) Will not be effective unless and 

until the notice required by this 

paragraph (d) contains all information 

called for herein and any statements 

required under paragraph (c)(2)(iii) have 

been provided; and 

(B) Will cease to be effective upon any 

change which would render the 

representations made pursuant to 

paragraph (d)(1)(iii) of this section 

inaccurate or the continuation of such 

representations false or misleading. 

* * * * * 

■ 3. Section 4.13 is amended by: 

■ a. Removing the word ‘‘or’’ at the end 

of paragraph (a)(3)(iv); 

■ b. Removing the period at the end of 

paragraph (a)(4)(ii)(B) and adding ‘‘; or’’; 

■ c. Redesignating paragraph (a)(5) as 

paragraph (a)(6), and revising newly 

redesignated paragraph (a)(6)(i) 

introductory text; 

■ d. Adding new paragraph (a)(5); and 

■ e. Revising paragraphs (b)(1)(ii) and 

(b)(2), to read as follows: 

§ 4.13 Exemption from registration as a 

commodity pool operator. 

* * * * * 

(a) * * * 

(5) The person is acting as a director 

or trustee with respect to a pool whose 

operator is registered as a commodity 

pool operator and is eligible to claim 

relief under § 4.12(c) of this chapter, 

Provided, however, that: 

(i) The person acts in such capacity 

solely to comply with the requirements 

under section 10A of the Securities 

Exchange Act of 1934, as amended, and 

any Securities and Exchange 

Commission rules and exchange listing 

requirements adopted pursuant thereto, 

that the pool have an audit committee 

comprised exclusively of independent 

directors or trustees; 

(ii) The person has no power or 

authority to manage or control the 

operations or activities of the pool 

except as necessary to comply with such 

requirement; and 

(iii) The registered pool operator of 

the pool is and will be liable for any 

violation of the Act or the Commission’s 

regulations by the person in connection 

with the person’s serving as a director 

or trustee with respect to the pool. 

(6)(i) Eligibility for exemption under 

paragraph (a)(1), (a)(2), (a)(3) or (a)(4) of 

this section is subject to the person 

furnishing in written communication 

physically delivered or delivered 

through electronic transmission to each 

prospective participant in the pool: 

* * * 

* * * * * 

(b)(1) * * * 

(ii) Contain the section number 

pursuant to which the operator is filing 

the notice (i.e., § 4.13(a)(1), (a)(2), (a)(3), 

(a)(4) or (a)(5), or both (a)(3) and (a)(4)) 

and represent that the pool will be 

operated in accordance with the criteria 

of that paragraph or paragraphs; and 

* * * * * 

(2) The person must file the notice by 

no later than the time that the pool 

operator delivers a subscription 

agreement for the pool to a prospective 

participant in the pool; Provided, 

however, that in the case of a claim for 

relief under § 4.13(a)(5), the person must 

file the notice by the later of the 

effective date of the pool’s registration 

statement under the Securities Act of 

1933 or the date on which the person 

first becomes a director or trustee; and 

Provided, further, that where a person 

registered with the Commission as a 

commodity pool operator intends to 

withdraw from registration in order to 

claim exemption hereunder, the person 

must notify its pool’s participants in 

written communication physically 

delivered or delivered through 

electronic transmission that it intends to 

withdraw from registration and claim 

the exemption, and it must provide each 

such participant with a right to redeem 

its interest in the pool prior to the 

person filing a notice of exemption from 

registration 

* * * * * 

Issued in Washington, DC, on May 5, 2011, 

by the Commission. 

David A. Stawick, 

Secretary of the Commission. 

[FR Doc. 2011–11551 Filed 5–17–11; 8:45 am] 

BILLING CODE P 

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

33 CFR Part 117 

[Docket No. USCG–2011–0389] 

Drawbridge Operation Regulation; 

Calcasieu River, Westlake, LA 

AGENCY: Coast Guard, DHS. 

ACTION: Notice of temporary deviation 

from regulations. 

SUMMARY: The Commander, Eighth 

Coast Guard District, has issued a 

temporary deviation from the regulation 

governing the operation of the Union 

Pacific Railroad swing bridge across the 

Calcasieu River, mile 36.4, at Westlake, 

Calcasieu Parish, Louisiana. The 

deviation is necessary to upgrade the 

electrical and mechanical systems of the 

bridge. This deviation allows the bridge 

to remain closed-to-navigation on five 

different dates in June. 

DATES: This deviation is effective from 

8 a.m. on Thursday, June 2, 2011, 

through 5 p.m. on Thursday, June 30, 

2011. 

ADDRESSES: Documents mentioned in 

this preamble as being available in the 

docket are part of docket USCG–2011– 

0389 and are available online by going 

to http://www.regulations.gov, inserting 

USCG–2011–0389 in the ‘‘Keyword’’ box 

and then clicking ‘‘Search.’’ They are 

also available for inspection or copying 

at the Docket Management Facility (M– 

30), U.S. Department of Transportation, 

West Building Ground Floor, Room 

W12–140, 1200 New Jersey Avenue, SE., 

Washington, DC 20590, between 9 a.m. 

and 5 p.m., Monday through Friday, 

except Federal holidays. 


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