CFTC Staff Letters

The CPO of a pool that had previously been granted relief from the certification requirement for fiscal year 2009 informed DCIO that the pool had ceased operations subsequent to the issuance of relief and requested relief from the certification requirement for the pool’s final annual report. Because the facts were substantially identical to those that formed the basis for the issuance of the prior relief and the CPO submitted waivers from the pool’s two participants, DCIO granted the relief requested.

The CPOs of a pool requested an extension of time for the filing of the pool’s 2009 annual report beyond June 29, 2010, due to a delay in the receipt of financial statements from investee pools. DCIO determined that the interests of participants in receiving timely information outweighed the CPOs’ hardship and DENIED the request.

The CPO of four pools organized as Delaware Series Limited Liability Companies requested an interpretation of the use of the term “pool” in Part 4 of the Commission’s regulations to include the individual series of a series limited liability company. The CPO also requested relief to use a tripartite disclosure document that limited certain disclosures to the offered series. DCIO declined to expand the definition of the term “pool” to include a series of a series limited liability company. DCIO did, however, grant exemptive relief and permitted the CPO to file and distribute a disclosure document that provided disclosures regarding the pool as a whole in the first part and disclosures only with respect to the offered series in a second part. DCIO required the CPO to disclose the manner of organization of the pool and the fact that series other than the offered series existed and that information regarding other series was available upon request. Additionally, DCIO required the CPO to make certain representations to NFA prior to filing such disclosure document and to ensure that both parts of the disclosure document be distributed to prospective participants together. DCIO further required the CPO to comply with the prescribed risk disclosure statement set forth in Regulation 4.24 and to present the required information in the forepart of the first part of the document, but permitted customization.

The CPO of a pool that had previously received exemptive relief to provide a 14-month certified Annual Report for the period from the inception of trading in November 2009 through December 31, 2010 requested relief from the certification requirement of Regulation 4.22 with respect to the pool’s final Annual Report. Because the CPO’s prior relief was conditioned upon the provision of a certified Annual Report, the CPO was required to seek exemptive relief where it otherwise would not be necessary. The CPO attached waivers from the pool’s participants evidencing their consent to the provision of an uncertified final Annual Report. DCIO determined that the granting of relief was not inconsistent with the purposes of Part 4 or the public interest and therefore granted the relief requested.

The CPOs of two pools requested an extension of time for the filing of the pools’ 2009 annual reports beyond June 29, 2010 due to a delay in the receipt of financial statements from investee pools. DCIO determined that the interests of participants in receiving timely information outweighed the CPOs’ hardship and denied the request.

The Division of Market Oversight issued a no-action letter to the IntercontinentalExchange, Inc. (ICE) confirming that the Division will not recommend that the Commission initiate enforcement action against ICE for failure to provide a written demonstration of compliance with the significant price discovery contracts (SPDC) core principle regime within 30 days of issuance of the Commission’s order deeming the Mid-C, PJM, and SP-15 contracts as SPDCs if ICE provides a written demonstration of compliance with the core principle regime for the three contracts by August 18, 2010.

The Division of Clearing and Intermediary Oversight issued an interpretation that a limited liability company and a trust operated by the limited liability company are not commodity pools where all participants are close family members.

The Division of Clearing and Intermediary Oversight granted exemptive relief from certain of the Part 4 regulations to the registered CPO of two commodity pools, whose shares the CPO intended to publicly offer and list for trading on a national securities exchange. As is discussed in the letter, this relief was in the nature of substituted compliance with those regulations.

The Division of Clearing and Intermediary Oversight granted exemptive relief from certain of the Part 4 regulations to the registered CPO of a commodity pool, whose shares the CPO intended to publicly offer and list for trading on a national securities exchange. As is discussed in the letter, this relief was in the nature of substituted compliance with those regulations. Exemptive relief was also provided with respect to future commodity pools with the same structural and operational features as the CPO’s existing pool.

The Division of Clearing and Intermediary Oversight granted exemptive relief from certain of the Part 4 regulations to the registered CPO of two commodity pools, whose shares the CPO intended to publicly offer and list for trading on a national securities exchange. As is discussed in the letter, this relief was in the nature of substituted compliance with those regulations.