[Federal Register Volume 74, Number 42 (Thursday, March 5, 2009)]
[Rules and Regulations]
[Pages 9568-9570]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-4740]


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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.

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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: [email protected].

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\
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    \1\ 17 CFR Part 4 (2008). The Commission's regulations can be 
accessed through the CFTC's Web site, www.cftc.gov.
    \2\ NFA 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).
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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\
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    \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.
    \4\ NFA 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.
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    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:
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    \5\ 73 FR at 71968.
    \6\ Id.

    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\
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    \7\ The 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.

    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\
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    \8\ 73 FR at 71969. See Regulations 4.21(b) for CPOs and 4.31(b) 
for CTAs.
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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,

[[Page 9569]]

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.
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    \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:
    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.
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    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\
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    \10\ See 73 FR 71968 n. 3.
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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.
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    \11\ 5 U.S.C. 601 et seq.
    \12\ See 47 FR 18618 (Apr. 30, 1982).
    \13\ Id. at 18619.
    \14\ Id. at 18620.
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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\
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    \15\ 44 U.S.C. 3501 et seq.
    \16\ See 73 FR 71969 for the PRA section of the Proposing 
Release.
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    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.
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    \17\ 7 U.S.C. 19(a).
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    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.


0
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

0
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.


0
2. Revise paragraphs (d)(1) and (2) of Sec.  4.26 to read as follows:


Sec.  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.

0
3. Revise paragraph (d) of Sec.  4.36 to read as follows:


Sec.  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

[[Page 9570]]

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