Exemptive Letters

12-70 ; Sections 4d and 4m of the Commodity Exchange Act; No-Action; Exemption
The Division of Swap Dealer and Intermediary Oversight granted no-action relief from registration as an IB or CTA to certain affiliates of swap dealers and swap counterparties and their employees where the affiliates' employees engage in certain activity in support of and on behalf of the swap dealer or swap counterparty. The relief is subject to a number of conditions, including that the affiliate and the swap dealer or swap counterparty undertake to be jointly and severally liable for violations of the CEA or the Commission's regulations and that the affiliate and employees are not subject to a statutory disqualification.

10-02 ; Regulations 4.22(c) and (d); Exemption
The CPO of a proprietary commodity pool (consisting only of the CPO and the CPO’s mother) requested relief from Commission Regulation 4.22(d), which requires certification of the pool’s annual report. The pool had, as of the close of its fiscal year, only $XXX,XXX in total assets, and the pool’s participants had received monthly account statements prepared by an unassociated third-party accounting firm. The CPO submitted signed waivers from each of the pool’s participants consenting to the exemption from the certified annual relief requirement. DCIO granted relief pursuant to Commission Regulations 140.93 and 4.12(a).

10-06 ; Section 4m(1), Regulations 4.21, 4.22 and 4.23; No-Action; Exemption
The Division of Clearing and Intermediary Oversight took a CPO registration no-action position with respect to the independent trustees of a commodity pool where the independent trustees had no authority to perform CPO functions, the independent trustees were appointed solely to comply with audit committee requirements under the Sarbanes Oxley Act and exchange listing requirements, and a separate registered CPO was authorized to perform all commodity pool operator functions. The Division further 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 to 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.

10-07 ; Regulations 4.22(c) and (d); Exemption
The CPO of a commodity pool that commenced operations in September of 2008 requested relief from Commission Regulations 4.22 (c) and (d), which require certification of the pool’s final Annual Report. The pool had only eight participants, total capital contributions of $3XX,XXX and, as of the pool’s liquidation date, $2X,XXX in net asset value. The CPO submitted signed waivers from each of the pool’s participants consenting to the exemption from the certified annual report requirement. DCIO granted relief pursuant to Commission Regulations 140.93 and 4.12(a).

10-08 ; Regulations 4.22(c) and (d); Exemption
The CPO of a commodity pool requested relief from Commission Regulations 4.22(c) and (d), which require the filing and distribution of a certified Annual Report for the pool. The pool began trading in May 2007 and had a net asset value of $8X,XXX. The CPO submitted signed waivers from the pool’s participants consenting to the exemption from the certified annual relief requirement. DCIO granted relief pursuant to Commission Regulations 140.93 and 4.12(a) conditioned upon the future filing and distribution of a certified Annual Report for the period from January 1, 2009 through December 31, 2010.

10-09 ; Regulations 4.22(c) and (d); Exemption
The CPO of a commodity pool requested relief from Commission Regulations 4.22(c) and (d), which require the filing and distribution of a certified Annual Report for the pool. Additionally, the CPO requested relief from the distribution and filing of an uncertified Annual Report and relief from the requirement that financial information for fiscal year 2009 be included in the Annual report for fiscal year 2010. The pool began trading in January 2004 and had a net asset value of $1X,XXX. The CPO submitted signed waivers from the pool’s participants, which consisted of the CPO and the pool’s CTA, consenting to the relief requested. DCIO granted relief pursuant to Commission Regulations 140.93 and 4.12(a) with respect to the request for relief from the certification requirement, conditioned upon the future filing and distribution of a certified Annual Report for the period from January 1, 2009 through December 31, 2010. DCIO, however, denied the remainder of the request as not being in the public interest.

10-10 ; Regulation 4.7(b)(3); Exemption
The CPO of a commodity pool that operates pursuant to an exemption under Regulation 4.7 requested exemptive relief to permit it to file an Annual Report for the period from October 15, 2009 through December 31, 2010. The pool had seven participants at the end of the pool’s fiscal year and a net asset value of $6,XXX,XXX. DCIO granted relief pursuant to Commission Regulations 140.93 and 4.12(a).

10-11 ; Regulations 4.7(b)(3); 4.22(c) and (d); Exemption
The CPO of a commodity pool that operates pursuant to an exemption under Regulation 4.7 requested exemptive relief to permit it to file a final annual report for the period from September 2009 through December 31, 2010. Additionally, because the notice for the 4.7 exemption was not filed until after the close of the fiscal year, the CPO also requested relief from the certification requirement for the period from September 2009 through December 31, 2009. The pool had seven participants at the end of the pool’s fiscal year, three of which were proprietary, and a net asset value of $1,XXX,XXX. The CPO provided executed waivers from all of the nonproprietary participants. DCIO granted relief pursuant to Commission Regulations 140.93 and 4.12(a).

10-12 ; Regulations 4.22(c) and (d); Exemption
The CPO of a commodity pool requested relief from Commission Regulations 4.22(c) and (d), which require the filing and distribution of a certified Annual Report for the pool. Additionally, the CPO requested relief from the distribution and filing of an uncertified Annual Report. The pool began trading in June 2007 and had a net asset value of $2XX. The pool had no nonproprietary participants, and has plans to resume trading commodity interests and offering interests in the pool in 2010. DCIO granted relief pursuant to Commission Regulations 140.93 and 4.12(a) with respect to the request for relief from the certification requirement, conditioned upon the future filing and distribution of a certified Annual Report for the period from January 1, 2009 through December 31, 2010. DCIO, however, denied the remainder of the request as not being in the public interest.

10-13 ; Regulations 4.22(c) and (d); Exemption
The CPO of a commodity pool requested relief from Commission Regulations 4.22(c) and (d), which require the filing and distribution of a certified Annual Report for the pool. The pool began trading in August 2008 and had a net asset value of $3XX,XXX. The CPO submitted signed waivers from the pool’s participants consenting to the exemption from the certified annual relief requirement. DCIO granted relief pursuant to Commission Regulations 140.93 and 4.12(a) conditioned upon the future filing and distribution of a certified Annual Report for the period from January 1, 2009 through December 31, 2010.

10-14 ; Regulation 4.7(b)(3); Exemption
The CPO of a commodity pool that operates pursuant to an exemption under Regulation 4.7 requested exemptive relief to permit it to file a final annual report for the period from January 1, 2009 through the permanent cessation of trading on March 31, 2010. The pool had five participants at the end of the pool’s fiscal year and a net asset value of $66,XXX,XXX. The CPO submitted waivers from the participants evidencing their consent to the relief requested. DCIO granted relief pursuant to Commission Regulations 140.93 and 4.12(a).

10-15 ; Regulation 4.22(c); Exemption
The CPO of a commodity pool requested exemptive relief to permit it to file an Annual Report for the period from the inception of trading in October 2009 through December 31, 2010. The pool had one participant at the end of the pool’s fiscal year and a net asset value of $2XX,XXX. The CPO submitted a waiver from the participant evidencing her consent to the relief requested. DCIO granted relief pursuant to Commission Regulations 140.93 and 4.12(a).

10-16 ; Regulation 4.22(c); Exemption
The CPO of a commodity pool requested exemptive relief to permit it to file an Annual Report for the period from the inception of trading in November 2009 through December 31, 2010. The pool had three participants at the end of the pool’s fiscal year and a net asset value of $1XX,XXX. The CPO submitted waivers from the participants evidencing their consent to the relief requested. DCIO granted relief pursuant to Commission Regulations 140.93 and 4.12(a).

10-17 ; Regulation 4.22(c); Exemption
The CPO of two commodity pools requested exemptive relief to permit it to file Annual Reports for the pools for the period from the inception of trading on November 1, 2009 through December 31, 2010. The pools had a total of three participants at the end of the pool’s fiscal year and a net asset value of $3,XXX,XXX and $5X,XXX,XXX. The CPO submitted waivers from the participants evidencing their consent to the relief requested. DCIO granted relief pursuant to Commission Regulations 140.93 and 4.12(a).

10-18 ; Regulations 4.22(c) and (d); Exemption
The CPO of a commodity pool requested relief from Commission Regulations 4.22(c) and (d), which require the filing and distribution of a certified Annual Report for the pool. The pool began trading in 2007 and had a net asset value of $1X,XXX. The CPO submitted signed waivers from the pool’s eight participants consenting to the exemption from the certified annual relief requirement. DCIO granted relief pursuant to Commission Regulations 140.93 and 4.12(a) conditioned upon the future filing and distribution of a certified Annual Report for the period from January 1, 2009 through December 31, 2010.

10-22 ; Rules 4.21, 4.22 and 4.23; Exemption
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.

10-23 ; Rules 4.21, 4.22 and 4.23; Exemption
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.

10-24 ; Rules 4.21, 4.22 and 4.23; Exemption
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.

10-27 ; Regulation 4.7; Exemption
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.

10-28 ; Regulation 4.22; Exemption
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.

10-29 ; Regulations 4.21, 4.24 and 4.25; Exemption
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.

10-30 ; Regulation 4.7; Exemption
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.

10-31 ; Regulation 4.22; Exemption
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.

10-37 ; Regulations 4.23 and 4.33; Exemption
The Division of Clearing and Intermediary Oversight provided exemptive relief to a registered CPO and CTA from the books and records location requirements of Rules 4.23 and 4.33 such that the CPO/CTA may maintain its books and records at a branch office (also the main business office of an affiliated company) that provides operational support to the CPO/CTA.