On May 18, 2011, the Commodity Futures Trading Commission (“CFTC”) published final rule amendments that provide relief from certain disclosure, reporting and recordkeeping requirements for certain commodity pool operators (“CPOs”) of pools whose interests are traded on a national securities exchange (“Commodity ETFs”), and from the CPO registration requirement for certain independent directors or trustees of Commodity ETFs. These amendments codify relief that the CFTC staff previously issued to CPOs of Commodity ETFs through no-action relief.
Specifically, a new paragraph (c) is added to CFTC Regulation 4.12 that, subject to certain 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, a new paragraph (a)(5) has been added to Regulation 4.13. This new provision exempts from CPO registration, subject to certain conditions, an independent director or trustee of a Commodity ETF if 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 under provisions of the Sarbanes-Oxley Act and SEC rules and exchange listing requirements adopted pursuant thereto. The amendments are effective June 17, 2011.