CFTC Staff Letters

The CPO of a commodity pool operated pursuant to an exemption under Regulation 4.7 requested exemptive relief from the requirement in Regulations 4.7(b)(3) and 4.22(d)(1) that the financial statements in the pool’s annual report be audited. At the end of the 2013 fiscal year, the pool had just one participant, who also is a controlling principal of the CPO and oversees the daily operations of both the CPO and the pool. DSIO granted relief from the audit requirement for the 2013 annual report pursuant to Regulations 4.12(a) and 140.93, conditioned upon the filing of an uncertified annual report for the 2013 fiscal year that otherwise complies with the provisions of Regulation 4.7(b)(3).

The CPO of a commodity pool operating pursuant to an exemption under Regulation 4.7 requested exemptive relief from the requirement in Regulation 4.7(b)(3) and 4.22(d) that the financial statements in the pools annual report be audited. The CPO submitted waivers from all of the pools participants evidencing their consent to the relief requested. DSIO granted relief pursuant to Commission regulations 140.93 and 4.12(a) conditioned upon the filing and distribution of an uncertified Annual Report for fiscal year 2013 that otherwise complies with the provisions of Regulation 4.7(b)(3).

The CPO of two commodity pools operating pursuant to an exemption under Regulation 4.7 requested exemptive relief from the annual report requirement in Regulation 4.7(b)(3) to permit it to file an Annual Report for the pools for the period from their inception of trading, July 19, 2013, to December 31, 2014. The CPO submitted signed subscription documents from all seven participants, acknowledging the terms of the Pools’ offering memorandum, which included the CPO’s intent to file and distribute an 18-month Annual Report for the Pools’ first fiscal year. DSIO granted relief pursuant to Regulations 140.93 and 4.12(a) conditioned upon the future filing and distribution of a certified Annual Report for the period from July 19, 2013 to December 31, 2014, in compliance with Regulation 4.7(b)(3).

The CPO of two commodity pools all operating pursuant to an exemption under Regulation 4.7 requested exemptive relief from the requirement in Regulation 4.7(b)(3) and 4.22(d) that the financial statements in the pools annual reports be audited. The CPO requested permission to file unaudited financial statements for the period from their inception of trading on October 1, 2013 to December 31, 2013. The CPO agreed to file an audited financial statement for the 15-month period from October 1, 2013 through December 31, 2014. The CPO submitted waivers from all of the pools participants evidencing their consent to the relief requested. DSIO 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 October 1, 2013 through December 31, 2014, in compliance with Regulation 4.7(b)(3) and the filing and distribution of an unaudited Annual Report that otherwise complies with Commission regulation 4.7(b)(3)(i) for the period from October 1, 2013 to December 31, 2014.

The CPO of an offshore commodity pool requested relief from the requirement in Commission regulation 4.7 that the pools financial statements be prepared in accordance with U.S. GAAP. The CPO requested permission to use Luxembourg GAAP in lieu thereof. The CPO represented that the preparation of the pools financial statements would satisfy the requirements of Commission regulation 4.22(d)(2)(i) with respect to the use of Luxembourg GAAP. The Division granted relief to the CPO with respect to the distribution of annual financial statements prepared in accordance with Luxembourg GAAP in lieu of US GAAP

The CPO of a commodity pool operating pursuant to an exemption under Regulation 4.7 requested exemptive relief from the requirement in Regulation 4.7(b)(3) and 4.22(d) that the financial statements in the pools annual reports be audited. The CPO was not required to submit waivers because the pools only participants are two partners of the CPO. DSIO granted relief pursuant to Commission regulations 140.93 and 4.12(a) conditioned upon the filing and distribution of an unaudited Annual Report that otherwise complies with Commission regulation 4.7(b)(3).

The CPO of three commodity pools all operating pursuant to an exemption under Regulation 4.7 requested exemptive relief from the annual report requirement in Regulation 4.7(b)(3) to permit it to file an Annual Report for the pools for the period from their inception of trading on November 1, 2013 to December 31, 2014. The CPO submitted waivers from all of the pools participants evidencing their consent to the relief requested. DSIO 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 November 1, 2013 through December 31, 2014, in compliance with Regulation 4.7(b)(3).

North American Derivatives Exchange, Inc. (Nadex) requested exemptive relief from certain provisions of the Commission’s Part 39 regulations applicable to derivatives clearing organizations due to the unique nature of Nadex’s business model.

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.

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.