9568 Federal Register / Vol. 74, No. 42 / Thursday, March 5, 2009 / Rules and Regulations 

1 17 CFR Part 4 (2008). The Commission’s 

regulations can be accessed through the CFTC’s 

Web site, www.cftc.gov. 

2NFA is a registered futures association pursuant 

to Section 17 of the Commodity Exchange Act (Act), 

7 U.S.C. 21 (2000). The Act also may be accessed 

through the CFTC’s Web site. 

The Commission previously authorized NFA to 

conduct reviews of Disclosure Documents filed by 

CPOs and CTAs pursuant to Regulations 4.26(d) 

and 4.36(d). See 62 FR 52088 (Oct. 6, 1997). 

3 73 FR 71968. The Proposing Release may be 

accessed through the CFTC’s Web site, at http:// 

www.cftc.gov/stellent/groups/public/ 

@lrfederalregister/documents/file/e8-28177a.pdf. 

4NFA filed the Petition with the Commission on 

July 21, 2008. 

The Commission previously authorized NFA to 

accept notices of exemptions or exclusions claimed 

under Part 4 and required that these notices be filed 

electronically. See 62 FR 52088 and 72 FR 1658 

(Jan. 16, 2007), respectively. 

5 73 FR at 71968. 

6 Id. 

7The Commission noted that, among other things, 

this key information concerns identification of 

contact persons, relationships with futures 

commission merchants or introducing brokers, and 

the past performance history and related data for 

the offered pool or trading program. 73 FR at 71969 

n. 6. 

8 73 FR at 71969. See Regulations 4.21(b) for 

CPOs and 4.31(b) for CTAs. 

9 73 FR 71969. 

In anticipation of the Commission’s action today, 

on January 22, 2009, NFA presented a web seminar 

on the electronic Disclosure Document filing 

system—which seminar is now available for ‘‘on 

demand’’ viewing on NFA’s Web site, 

www.nfa.futures.org. Page 7 on the ‘‘on demand’’ 

document confirms the Commission’s previous 

statement with the text that: 

corresponding provisions of paragraph (g) of 

this AD. 

Material Incorporated by Reference 

(l) None. 

Issued in Renton, Washington, on February 

17, 2009. 

Ali Bahrami, 

Manager, Transport Airplane Directorate, 

Aircraft Certification Service. 

[FR Doc. E9–4650 Filed 3–4–09; 8:45 am] 

BILLING CODE 4910–13–P 

COMMODITY FUTURES TRADING 

COMMISSION 

17 CFR Part 4 

RIN 3038–AC 67 

Electronic Filing of Disclosure 

Documents 

AGENCY: Commodity Futures Trading 

Commission. 

ACTION: Final rule. 

SUMMARY: The Commodity Futures 

Trading Commission (Commission or 

CFTC) is amending its regulations 

applicable to the filing of Disclosure 

Documents by commodity pool 

operators (CPOs) and commodity 

trading advisors (CTAs) with the 

National Futures Association (NFA). In 

response to a petition from NFA, the 

CFTC is requiring that CPOs and CTAs 

be required to file their Disclosure 

Documents electronically with NFA 

(Amendments). 

DATES: Effective Date: April 6, 2009. 

FOR FURTHER INFORMATION CONTACT: 

Barbara S. Gold, Associate Director, 

Compliance and Registration Section, 

Division of Clearing and Intermediary 

Oversight, Commodity Futures Trading 

Commission, Three Lafayette Centre, 

1155 21st Street, NW., Washington, DC 

20581, telephone number: (202) 418– 

5450; facsimile number: (202) 418–5528; 

and electronic mail: bgold@cftc.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background 

A. CPO and CTA Disclosure Documents 

Part 4 of the Commission’s 

regulations 1 governs the operations and 

activities of CPOs and CTAs. 

Regulations 4.21 and 4.31 respectively 

require each CPO and CTA registered or 

required to be registered with the 

Commission to deliver a Disclosure 

Document to prospective pool 

participants and clients. Regulations 

4.24 and 4.25 specify the informational 

content of the CPO Disclosure 

Document, and Regulations 4.34 and 

4.35 specify the informational content 

for the CTA Disclosure Document. 

Regulations 4.26 and 4.36 respectively 

pertain to the use, amendment and 

filing of CPO and CTA Disclosure 

Documents. Specifically, under 

Regulations 4.26(d) and 4.36(d), the 

CPO or CTA must file one copy of the 

Disclosure Document, and any 

supplements and amendments thereto, 

with NFA.2

B. The Proposing Release 

On November 26, 2008, the 

Commission proposed to amend 

Regulations 4.26 and 4.36 in order to 

require that CPOs and CTAs file 

Disclosure Documents electronically 

through NFA’s electronic Disclosure 

Document filing system (Proposing 

Release).3 This action was in response 

to a petition filed by NFA with the 

Commission (Petition).4

In the Petition, under ‘‘Supporting 

Arguments,’’ NFA explained that 

although it had developed a new 

Internet-based Disclosure Document 

electronic filing system ‘‘that will be 

significantly less resource intensive 

while also streamlining and enhancing 

the filing process for registrants,’’ 5

absent an electronic filing requirement 

these proposed benefits would not be 

realized. In the Proposing Release, the 

Commission noted also NFA’s 

representations that the system is 

designed to be easy and secure; it can 

be accessed through any public internet 

site; and CPOs and CTAs will access the 

system ‘‘using the same designated login 

and password that they currently use for 

NFA’s Online Registration System.’’ 6

The Commission further explained that: 

NFA’s process for the electronic filing of 

Disclosure Documents will have two 

components. One of those components will 

require CPOs and CTAs to electronically 

submit their Disclosure Documents, as well 

as any amendments and supplements thereto. 

The other of these components will require 

CPOs and CTAs to enter from their 

Disclosure Documents certain key 

information on their operations and activities 

into a standardized form accessed through 

NFA’s Web site.7

In light of the foregoing, the 

Commission proposed to amend 

Regulations 4.26(d) and 4.36(d) to 

require that any documents required to 

be filed thereunder be filed 

electronically with NFA, pursuant to 

NFA’s electronic filing procedures. The 

Commission emphasized, however, that 

the proposed amendments, if adopted, 

would not impact the delivery of 

Disclosure Documents to prospective 

pool participants and clients, which 

CPOs and CTAs could continue to 

provide through hardcopy distribution 

via postal mail or electronically if the 

intended recipient consented thereto.8

II. Final Action 

A. Responses to the Comments 

The Commission received one 

comment letter, from a committee of a 

bar association whose members consist 

of attorneys who represent CPOs and 

CTAs (Committee). The Committee 

expressed concern that neither the 

Proposing Release nor the Petition 

contained detail on the information that 

would be required to be filed concurrent 

with the filing of the Disclosure 

Document or the uses to which that 

information would be put. In response, 

the Commission notes that the Petition 

states ‘‘the filing process includes a 

series of questions that will assist in 

identifying the type of filing as well as 

provide important background 

information to assist NFA staff with the 

analysis of the document itself’’— 

which, the Commission believes, will be 

in furtherance of NFA’s compliance and 

enforcement programs. Moreover, as the 

Commission previously stated in the 

Proposing Release, CPOs and CTAs will 

be entering information directly from 

their Disclosure Documents.9 Further, 


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Federal Register / Vol. 74, No. 42 / Thursday, March 5, 2009 / Rules and Regulations 9569 

Before you start, you should have a copy of the 

disclosure document you plan to file available since 

the system will require you to enter certain 

information (e.g., performance data, business 

relationships) directly from the document you are 

filing. 

10See 73 FR 71968 n. 3. 

11 5 U.S.C. 601 et seq. 

12See 47 FR 18618 (Apr. 30, 1982). 

13 Id. at 18619. 

14 Id. at 18620. 

15 44 U.S.C. 3501 et seq. 

16See 73 FR 71969 for the PRA section of the 

Proposing Release. 

17 7 U.S.C. 19(a). 

the Commission has been advised that 

NFA staff spoke with NFA’s CPO/CTA 

Advisory Committee in advance of the 

filing of the Petition, and the Advisory 

Committee was supportive of the 

electronic filing system for CPO and 

CTA Disclosure Documents. 

In light of the foregoing, the 

Commission has determined to adopt 

the amendments to Regulations 4.26(d) 

and 4.36(d) as proposed. 

B. Other Action 

Also in response to the Petition, and 

in the absence of any comments, the 

Commission has added the word ‘‘each’’ 

before the words ‘‘trading program’’ in 

paragraph (d)(1) of Regulation 4.36 to 

make that paragraph read parallel to the 

phrase ‘‘each trading program’’ in 

paragraph (d)(2) of Regulation 4.36.10

III. Related Matters 

A. Regulatory Flexibility Act 

The Regulatory Flexibility Act 

(RFA) 11 requires that agencies, in 

proposing rules, consider the impact of 

those rules on small businesses. The 

Commission previously has 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.12 With respect to CPOs, the 

Commission previously has determined 

that a registered CPO is not a small 

entity for the purpose of the RFA.13 As 

for CTAs, the Commission previously 

has stated that it would evaluate within 

the context of a particular rule proposal 

whether all or some affected CTAs 

would be considered to be small entities 

and, if so, the economic impact on them 

of the particular rule.14 The Commission 

believes that the Amendments will not 

place any significant economic burdens, 

whether new or additional, on CPOs 

and CTAs who will be affected by them. 

This is because while the Amendments 

will require these CPOs and CTAs to 

have access to and a certain degree of 

technical knowledge to file Disclosure 

Documents electronically and to enter 

the required information, they will 

access the system using the same 

designated login and password that they 

currently use for registration purposes 

and they will be entering the 

information directly from their 

Disclosure Documents. The Commission 

did not receive any comments relative 

to its analysis of the RFA in the 

Proposing Release. 

B. Paperwork Reduction Act 

The Paperwork Reduction Act of 1995 

(PRA) 15 imposes certain requirements 

on federal agencies (including the 

Commission) in conducting or 

sponsoring any collection of 

information as defined by the PRA. The 

Amendments change the manner in 

which CPOs and CTAs file Disclosure 

Documents with NFA; they do not affect 

the substance or frequency of those 

filings. The Amendments do, however, 

authorize the separate collection from 

CPOs and CTAs of certain information 

from the Disclosure Documents CPOs 

and CTAs must now file electronically. 

Accordingly, pursuant to the PRA, the 

Commission submitted a copy of the 

PRA section of the Proposing Release to 

the Office of Management and Budget 

(OMB) for its review.16

The Commission received one 

comment on its analysis of the PRA in 

the Proposing Release, from the 

Committee. For the reasons provided in 

the Proposing Release and above in this 

release, the Commission continues to 

believe that the Amendments change 

the manner, but not the substance or 

frequency, of the filing of Disclosure 

Documents by CPOs and CTAs. 

C. Cost-Benefit Analysis 

Section 15(a) of the Act 17 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 

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, enumerated below. 

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 did not receive any 

comments relative to its cost-benefit 

analysis in the Proposing Release. 

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. Revise paragraphs (d)(1) and (2) of 

§ 4.26 to read as follows: 

§ 4.26 Use, amendment and filing of 

Disclosure Document. 

* * * * * 

(d) * * * 

(1) The commodity pool operator 

must electronically file with the 

National Futures Association, pursuant 

to the electronic filing procedures of the 

National Futures Association, the 

Disclosure Document and, where used, 

profile document for each pool that it 

operates or that it intends to operate not 

less than 21 calendar days prior to the 

date the pool operator first intends to 

deliver such Document or documents to 

a prospective participant in the pool; 

and 

(2) The commodity pool operator 

must electronically file with the 

National Futures Association, pursuant 

to the electronic filing procedures of the 

National Futures Association, the 

subsequent amendments to the 

Disclosure Document and, where used, 

profile document for each pool that it 

operates or that it intends to operate 

within 21 calendar days of the date 

upon which the pool operator first 

knows or has reason to know of the 

defect requiring the amendment. 

■ 3. Revise paragraph (d) of § 4.36 to 

read as follows: 

§ 4.36 Use, amendment and filing of 

Disclosure Document. 

* * * * * 

(d)(1) The commodity trading advisor 

must electronically file with the 

National Futures Association, pursuant 

to the electronic filing procedures of the 


dwashington3 on PROD1PC60 with RULES
9570 Federal Register / Vol. 74, No. 42 / Thursday, March 5, 2009 / Rules and Regulations 

National Futures Association, the 

Disclosure Document for each trading 

program that it offers or that it intends 

to offer not less than 21 calendar days 

prior to the date the trading advisor first 

intends to deliver the Document to a 

prospective client in the trading 

program; and 

(2) The commodity trading advisor 

must electronically file with the 

National Futures Association, pursuant 

to the electronic filing procedures of the 

National Futures Association, the 

subsequent amendments to the 

Disclosure Document for each trading 

program that it offers or that it intends 

to offer within 21 calendar days of the 

date upon which the trading advisor 

first knows or has reason to know of the 

defect requiring the amendment. 

Issued in Washington, DC on February 27, 

2009 by the Commission. 

David A. Stawick, 

Secretary of the Commission. 

[FR Doc. E9–4740 Filed 3–4–09; 8:45 am] 

BILLING CODE 6351–01–P 

DEPARTMENT OF THE TREASURY 

Internal Revenue Service 

26 CFR Part 1 

[TD 9441] 

RIN 1545–BI46 

Section 482: Methods To Determine 

Taxable Income in Connection With a 

Cost Sharing Arrangement; Correction 

AGENCY: Internal Revenue Service (IRS), 

Treasury. 

ACTION: Correction to final and 

temporary regulations. 

SUMMARY: This document contains 

corrections to final and temporary 

regulations (TD9441) that were 

published in the Federal Register on 

Monday, January 5, 2009 providing 

further guidance and clarification 

regarding methods under section 482 to 

determine taxable income in connection 

with a cost sharing arrangement in order 

to address issues that have arisen in 

administering the current regulations. 

The temporary regulations affect 

domestic and foreign entities that enter 

into cost sharing arrangements 

described in the temporary regulations. 

DATES: This correction is effective 

March 5, 2009, and is applicable on 

January 5, 2009. 

FOR FURTHER INFORMATION CONTACT: 

Kenneth P. Christman, (202) 435–5265 

(not a toll-free number). 

SUPPLEMENTARY INFORMATION: 

Background 

The final and temporary regulations 

that are the subject of this document are 

under sections 367 and 482 of the 

Internal Revenue Code. 

Need for Correction 

As published, final and temporary 

regulations (TD 9441), published 

Monday, January 5, 2009 (74 FR 340) , 

contains errors that may prove to be 

misleading and are in need of 

clarification. 

Correction of Publication 

PART 1—[CORRECTED] 

Accordingly, the publication of the 

final and temporary regulations (TD 

9441), which was the subject of FR Doc. 

E8–30715, is corrected as follows: 

1. On page 346, column 2, in the 

preamble, under the paragraph heading 

‘‘4. Acquisition Price and Market 

Capitalization Methods—Temp. Treas. 

Reg. § 1.482–7T(g)(5) and (6), third 

paragraph of the column, line 17, the 

language ‘‘PCT Payor’s, nonroutine 

contributions’’ is corrected to read ‘‘PCT 

Payee’s, nonroutine contributions’’. 

2. On page 347, column 1, in the 

preamble, the language of the paragraph 

heading ‘‘2. Contingent Payments— 

Temp. Treas. Reg. § 1.482–7T(h)(2)(iv) 

and (v)’’ is corrected to read ‘‘2. 

Contingent Payments—Temp. Treas. 

Reg. § 1.482–7T(h)(2)(iii) and (iv)’’. 

3. On page 348, column 2, in the 

preamble, under the paragraph heading 

‘‘Special Analyses’’, last paragraph of 

the column, line 13, the language 

‘‘preamble to the cross-reference notice 

of’’ is corrected to read ‘‘preamble to the 

cross-referenced notice of’’. 

4. On page 348, column 3, in the 

preamble, under the paragraph heading 

‘‘Drafting Information’’, second 

paragraph of the column, line 2, the 

language ‘‘proposed regulations is 

Kenneth P.’’ is corrected to read 

‘‘temporary regulations is Kenneth P.’’. 

LaNita Van Dyke, 

Chief, Publications and Regulations Branch 

Legal Processing Division, Associate Chief 

Counsel, (Procedure and Administration). 

[FR Doc. E9–4656 Filed 3–4–09; 8:45 am] 

BILLING CODE 4830–01–P 

DEPARTMENT OF THE TREASURY 

Internal Revenue Service 

26 CFR Part 1 

[TD 9441] 

RIN 1545–BI46 

Section 482: Methods To Determine 

Taxable Income in Connection With a 

Cost Sharing Arrangement; Correction 

AGENCY: Internal Revenue Service (IRS), 

Treasury. 

ACTION: Correcting amendment. 

SUMMARY: This document contains 

corrections to final and temporary 

regulations (TD9441) that were 

published in the Federal Register on 

Monday, January 5, 2009 (74 FR 340) 

providing further guidance and 

clarification regarding methods under 

section 482 to determine taxable income 

in connection with a cost sharing 

arrangement in order to address issues 

that have arisen in administering the 

current regulations. The temporary 

regulations affect domestic and foreign 

entities that enter into cost sharing 

arrangements described in the 

temporary regulations. 

DATES: This correction is effective 

March 5, 2009, and is applicable on 

January 5, 2009. 

FOR FURTHER INFORMATION CONTACT: 

Kenneth P. Christman, (202) 435–5265 

(not a toll-free number). 

SUPPLEMENTARY INFORMATION: 

Background 

The final and temporary regulations 

that are the subject of this document are 

under sections 367 and 482 of the 

Internal Revenue Code. 

Need for Correction 

As published, final and temporary 

regulations (TD 9441) contains errors 

that may prove to be misleading and are 

in need of clarification. 

List of Subjects in 26 CFR Part 1 

Income taxes, Reporting and 

recordkeeping requirements. 

Correction of Publication 

■ Accordingly, 26 CFR part 1 is 

corrected by making the following 

correcting amendments: 

PART 1—INCOME TAXES 

■ Paragraph 1. The authority citation 

for part 1 continues to read in part as 

follows: 

Authority: 26 U.S.C. 7805 * * * 


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