2012-21606

Federal Register, Volume 77 Issue 172 (Wednesday, September 5, 2012)[Federal Register Volume 77, Number 172 (Wednesday, September 5, 2012)]

[Rules and Regulations]

[Pages 54355-54360]

From the Federal Register Online via the Government Printing Office [www.gpo.gov]

[FR Doc No: 2012-21606]

[[Page 54355]]

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COMMODITY FUTURES TRADING COMMISSION

17 CFR Part 4

RIN 3038-AD49

Amendments to Commodity Pool Operator and Commodity Trading

Advisor Regulations Resulting From the Dodd-Frank Act

AGENCY: Commodity Futures Trading Commission.

ACTION: Final rules.

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SUMMARY: The Commodity Futures Trading Commission (Commission) is

amending its regulations governing the operations and activities of

commodity pool operators (CPOs) and commodity trading advisors (CTAs)

in order to have those regulations reflect changes made to the

Commodity Exchange Act (CEA) by the Dodd-Frank Wall Street Reform and

Consumer Protection Act (Dodd-Frank Act).

DATES: Effective Date: November 5, 2012.

FOR FURTHER INFORMATION CONTACT: Barbara S. Gold, Associate Director,

or Christopher W. Cummings, Special Counsel, Division of Swap Dealer

and Intermediary Oversight, 1155 21st Street NW., Washington, DC 20581.

Telephone number: 202-418-6700 and electronic mail: bgold@cftc.gov or

ccummings@cftc.gov.

SUPPLEMENTARY INFORMATION:

I. Background

A. The Dodd-Frank Act

On July 21, 2010, President Obama signed the Dodd-Frank Act.\1\

Title VII of the Dodd-Frank Act \2\ amended the CEA \3\ to establish a

comprehensive new regulatory framework for swaps and security-based

swaps. The goal of this legislation was to reduce risk, increase

transparency, and promote market integrity within the financial system

by, among other things: (1) Providing for the registration and

comprehensive regulation of swap dealers (SDs) and major swap

participants (MSPs); (2) imposing clearing and trade execution

requirements on standardized derivative products; (3) creating robust

recordkeeping and real-time reporting regimes; and (4) enhancing the

Commission's rulemaking and enforcement authorities with respect to,

among others, all registered entities and intermediaries subject to the

oversight of the Commission. Among the changes made by the Dodd-Frank

Act to the CEA were to include within the CPO definition the operator

of a collective investment vehicle that trades swaps, and to include

within the CTA definition a person who provides advice concerning

swaps.\4\

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\1\ See Dodd-Frank Wall Street Reform and Consumer Protection

Act, Public Law 111-203, 124 Stat. 1376 (2010). The text of the

Dodd-Frank Act may be accessed through the Commission's Web site,

www.cftc.gov.

\2\ Pursuant to Section 701 of the Dodd-Frank Act, Title VII may

be cited as the ``Wall Street Transparency and Accountability Act of

2010.''

\3\ 7 U.S.C. 1 et seq. (2006). The Commission's regulations are

found at 17 CFR part 1 et seq. (2012). Both the CEA and the

Commission's regulations also may be accessed through the

Commission's Web site.

\4\ See Section 721(a) of the Dodd-Frank Act, which re-organized

(and in some cases amended) existing definitions in, and added new

definitions to, Section 1a of the CEA. The CPO and CTA definitions,

as amended, are codified at CEA sections 1a(11) and 1a(12),

respectively.

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B. The Proposed Amendments to Part 4

Part 4 of the Commission's regulations sets forth a comprehensive

regulatory framework for the operations and activities of CPOs and

CTAs. It includes disclosure, reporting and recordkeeping requirements

for registered CPOs and CTAs, registration and compliance exemptions

for CPOs and CTAs, and other provisions, including anti-fraud

provisions, applicable to CPOs and CTAs, regardless of registration

status. To ensure that the Part 4 regulations applied to CPOs and CTAs

in the context of these intermediaries' involvement with swap

transactions, on March 3, 2011, the Commission proposed certain

amendments to Part 4 (Proposal).\5\

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\5\ 76 FR 11701.

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As the Commission explained in the Proposal, because many of the

existing Part 4 regulations generally applied to CPOs and CTAs, they

would continue to be applicable to CPOs and CTAs with respect to their

swap activities without the need for amendment thereto. The Commission

noted that in other instances, however, the text of certain existing

Part 4 regulations was specific to activities involving futures

contracts, commodity options, and off-exchange retail foreign currency

(``commodity interests''), and it did not include, refer to or

otherwise take account of swap activities. As the Commission stated:

``The Proposal [was] intended to clarify and ensure that the

requirements governing the operations and activities of CPOs and CTAs

continue to apply for these intermediaries in the context of their

involvement with swap transactions.'' \6\ Accordingly, the Commission

proposed to amend Regulations 4.7, 4.10, 4.22, 4.23, 4.24 4.30, 4.33

and 4.34 to include in each of these regulations a reference to swaps

or swap activities.

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\6\ 76 FR 11701. Part 4 applies to CPOs with respect to their

activities affecting pool participants and to CTAs with respect to

their activities affecting clients. Depending on the nature of its

activities, a CPO or CTA may also come within the definition of the

term ``swap dealer'' or ``major swap participant'' in new CEA

Section 1a(49) or 1a(33), respectively. As directed by the Dodd-

Frank Act, the Commission has adopted new regulations that establish

business conduct standards for SDs and MSPs. See 77 FR 9734 (Feb.

17, 2012). These new regulations apply to SDs and MSPs with respect

to the counterparties with whom they transact swap business, and

govern different activity than that to which the Part 4 regulations

apply.

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II. Comments on the Proposal

The Commission received two comment letters on the Proposal,\7\

each of which supported the Proposal. One of these letters stated that

the Proposal ``should act to reduce risk and increase its transparency,

and promote market integrity by ensuring that all entities are

consistently regulated to the extent that their trading and other

activities pertain to swaps.'' \8\ The other letter urged the

Commission ``to work quickly and diligently on writing these rules and

putting them in place as soon as possible.'' \9\

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\7\ These comment letters currently are available on the

Commission's Web site.

\8\ Comment letter from Chris Barnard (Mar. 29, 2011).

\9\ Comment letter from Kyle Vandergrift (Apr. 20, 2011).

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III. The Final Regulations

In light of the supportive comments it received, with one exception

the Commission is adopting the amendments to the Part 4 regulations it

proposed. That exception concerns the proposed amendment to Regulation

4.10(a) that, for the purposes of Part 4, would have expanded the

definition of the term ``commodity interest'' to include ``swaps.''

This proposal was superseded by a proposed amendment to Regulation

1.3(yy) that, for the purposes of all of the Commission's regulations,

would define the term ``commodity interest'' to include ``swaps.'' \10\

Accordingly, the Commission is considering the proposed definition of

the term ``commodity interest'' in connection with its consideration of

the comment letters it received on its proposed amendment to Regulation

1.3(yy).

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\10\ See 76 FR 33066, 33069-70 (June 7, 2011).

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A. Adding ``Swap'' Terms to Part 4

As proposed, the Commission is inserting ``swap,'' ``swap

transaction'' or a similar term at various regulations throughout Part

4. See the amendments to Regulations 4.23(a)(1), 4.24(g), (h)(1), and

(i)(2) for CPOs and Regulations 4.34(g) and 4.34(i)(2) for CTAs. For

[[Page 54356]]

example, Regulation 4.23(a)(1) is being amended to include ``swap type

and counterparty'' in the itemized daily record that a CPO must make

and keep with respect to a pool's commodity interest transactions.

At other Part 4 regulations, the Commission has included as

proposed the term ``swap dealer'' among the persons for whom a CPO or

CTA must provide information in its Disclosure Document and for whom a

CPO must provide information in a pool's periodic Account Statement.

See the amendments to Regulations 4.22(a)(3), 4.24(j)(1), (j)(3),

(l)(1), and (l)(2) for CPOs and Regulations 4.34(j)(1), (j)(3), (k)(1)

and (k)(2) for CTAs. For example, Regulations 4.24(j) and 4.34(j) are

being amended to include SDs in the group of persons as to which

conflicts of interest must be disclosed by CPOs and CTAs.

Similarly, the Commission has included as proposed ``a registered

swap dealer'' among the persons listed in Regulation 4.7(a)(2) that do

not have to satisfy a portfolio requirement in order to be a qualified

eligible person (QEP), such that a CPO or CTA that has claimed relief

under Regulation 4.7 may accept the SD as a pool participant or

advisory client without regard to the size of its investment portfolio.

As the Commission explained, ``this would be consistent with the

current treatment of other financial intermediaries registered with the

Commission (such as futures commission merchants [FCMs] and retail

foreign exchange dealers [RFEDs]) as QEPs under Regulation 4.7(a)(2).''

\11\

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\11\ 76 FR at 11702.

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B. Including Books and Records Relating to Swap Transactions within

Part 4

The Commission has adopted as proposed amendments to Part 4 that

require a CPO or CTA to make and keep certain books and records

generated by the swap transactions in which it engages on behalf of not

only its pool participants and clients, but also itself. See the

amendments to Regulations 4.23(a)(7) and (b)(1) for CPOs and

Regulations 4.33(a)(6) and (b)(1) for CTAs. The amendments to

Regulations 4.23(a)(7) and 4.33(a)(6) require CPOs and CTAs to retain

each acknowledgment of a swap transaction received from an SD. The

amendments to Regulations 4.23(b)(1) and 4.33(b)(1) make clear that if

a CPO or CTA was a counterparty to a swap transaction, then it would be

subject to the swap data recordkeeping and reporting requirements of

Part 45 of the Commission's regulations, as applicable.\12\

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\12\ See Regulation 45.2, which requires SDs and MSPs to keep

full, complete and systematic records, together with all pertinent

data and memoranda, of all activities relating to their business

with respect to swaps, as prescribed by the Commission. (Non-SD and

non-MSP counterparties subject to the Commission's jurisdiction have

a similar requirement, but only with respect to each swap to which

they are a counterparty.)

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C. Regulation 4.30

Subject to certain exceptions, Regulation 4.30 provides that no CTA

may solicit, accept or receive from an existing or prospective client

funds, securities or other property in the trading advisor's name (or

extend credit in lieu thereof) to purchase, margin, guarantee or secure

any commodity interest of the client.

The Commission proposed to amend Regulation 4.30 by adding to the

list of intermediaries then excepted from the foregoing prohibition--

i.e., registered FCMs, leverage transaction merchants and RFEDs--a

registered SD in connection with a swap that was not cleared through a

derivatives clearing organization. The Commission explained that this

amendment to Regulation 4.30 was necessary ``[b]ecause swap dealers

will generally fall within the statutory definition of CTA, and because

a swap dealer engaging in uncleared swap transactions may be accepting

funds or other property from its counterparties as variation and

initial margin payments.'' \13\

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\13\ 76 FR at 11702. In this regard, the Commission has proposed

regulations addressing the circumstances in which non-bank SDs may

be required or permitted to accept margin payments in uncleared swap

transactions. See 76 FR 23732 (Apr. 28, 2011). Accordingly, this

amendment to Regulation 4.30 should not be interpreted to impose or

authorize any such margin requirements.

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Subsequently, the Commission amended Regulation 4.6 to provide

therein for an exclusion from the definition of the term ``commodity

trading advisor'' for an SD, provided the commodity interest and swap

advisory activities of the SD are solely incidental to the conduct of

its business as an SD.\14\ Because not all SDs may always meet the

``solely incidental'' proviso, the Commission has determined to amend

Regulation 4.30 as proposed, such that any registered SD who is a CTA

is not subject to the regulation's operational prohibition.

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\14\ See 77 FR 9734, 9739-40 (Feb. 17, 2012).

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D. Deleting Regulation 4.32

The Commission has deleted as proposed Regulation 4.32, which

concerned trading by a registered CTA on or subject to the rules of a

derivatives transaction execution facility (DTEF) for non-institutional

customers. As the Commission explained:

Section 734(a) of the Dodd-Frank Act repeals Section 5a of the

CEA, which is the section establishing and providing for the

regulation of DTEFs. Accordingly, because subsequent to the

effective date of the Dodd-Frank Act Regulation 4.32 will no longer

have a statutory basis or purpose, the Proposal would remove and

reserve Regulation 4.32.\15\

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\15\ 76 FR at 11702.

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IV. Related Matters

A. Regulatory Flexibility Act

The Regulatory Flexibility Act (``RFA'') \16\ requires federal

agencies to consider the impact of those rules on small businesses.\17\

A regulatory flexibility analysis or certification typically is

required for ``any rule for which the agency publishes a general notice

of proposed rulemaking pursuant to'' the notice-and-comment provisions

of the Administrative Procedure Act, 5 U.S.C. 553(b).\18\ The

amendments to the Part 4 regulations contained herein will affect CPOs

and CTAs. The Commission stated in the Proposal that:

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\16\ 5 U.S.C. 601 et seq.

\17\ By its terms, the RFA does not apply to ``individuals.''

See 48 FR 14933, n. 115 (Apr. 6, 1983).

\18\ 5 U.S.C. 601(2), 603, 604 and 605.

With respect to CPOs, the Commission previously has determined

that a CPO is a small entity for the purpose of the RFA if it meets

the criteria for an exemption from registration under Regulation

4.13(a)(2). Thus, because the Proposal applies to registered CPOs,

the RFA is not applicable to it. 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. In this regard, the Commission notes

that the Proposal applies to registered CTAs. Moreover, the Proposal

would not have a significant economic impact on any CPO or CTA who

would be affected thereby, because it would merely bring within the

current Part 4 regulatory structure of disclosure, reporting and

recordkeeping information with respect to swap activities. It would

not impose any additional operative requirements or otherwise direct

or confine the activities of CPOs and CTAs.\19\

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\19\ 76 FR at 11703.

The Commission did not receive any comments regarding its RFA

analysis in the Proposal. Accordingly, pursuant to 5 U.S.C. 605(b), the

Chairman, on behalf of the Commission, certifies that the amendments to

the Part 4 regulations being published today by this Federal Register

release will not have a significant economic impact on a substantial

number of small entities.

[[Page 54357]]

B. Paperwork Reduction Act

The Paperwork Reduction Act of 1995 (PRA) \20\ imposes certain

requirements on Federal agencies (including the Commission) in

connection with their conducting or sponsoring any collection of

information as defined by the PRA. The amendments to the Part 4

regulations will not require any new collection of information from any

entity that is subject to them. Additionally, the Commission did not

receive any comments regarding its PRA analysis in the Proposal.

Accordingly, for purposes of the PRA, the Chairman, on behalf of the

Commission, certifies that the amendments to the Part 4 regulations

being published today by this Federal Register release will not impose

any new reporting or recordkeeping requirements.

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\20\ 44 U.S.C. 3501 et seq.

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C. Cost-Benefit Analysis

Prior to the passage of the Dodd-Frank Act, the Part 4 regulations

did not apply to swap-related activities. This pre-Dodd-Frank Act

construct provides a useful reference point from which to compare the

costs and benefits of the proposed regulations to the alternative where

the Commission would not be taking any action to incorporate swap-

related information into Part 4.

As a result of the Dodd-Frank Act including swap-related activities

among the activities on which the CPO and CTA definitions are based,

CPOs and CTAs who engage in swap-related activities are now subject to

Part 4. In various places, however, the wording of particular

provisions of Part 4 was incomplete or inconsistent in the context of

CPOs and CTAs involved with swap transactions; there is no regulatory

need for the prohibition in Regulation 4.30 against directly accepting

margin payments to apply to an SD; and the subject matter of Regulation

4.32 (trading on DTEFs) was rendered moot by the Dodd-Frank Act. Under

such a scenario, the costs to the public of inaction would be, in

qualitative terms, failure to receive Part 4 disclosure, reporting and

recordkeeping protections from their CPOs and CTAs with regard to their

swap activities, an unnecessary burden on SDs, and regulatory text that

is obsolete. The costs of these amendments, if any, will be minimal--

limited to the costs associated with including information related to

swaps in the Disclosure Documents, Account Statements and books and

records already required of CPOs and CTAs under existing Part 4

regulations. Moreover, this information should be readily available to

CPOs and CTAs. The costs cannot be feasibly quantified or estimated,

because they will vary according to each registrant's internal

processes and registration category. In contrast, the amendments will

yield significant if unquantifiable benefit to the public, relative to

inaction, by clarifying the application of Part 4 and the obligations

of CPOs and CTAs to their participants and clients, respectively.

In the CEA,\21\ Congress provided the Commission with the authority

to promulgate regulations that, among other things, are reasonably

necessary to effectuate any of the provisions or to accomplish any of

the purposes of the CEA. In accordance with Section 15(a) of the CEA,

it is in this post-Dodd-Frank Act environment that the Commission

considers the costs and benefits of its actions before promulgating a

regulation under the CEA or issuing an order.

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\21\ See 7 U.S.C. 12(a)(5).

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Section 15(a) specifies that the costs and benefits shall be

evaluated in light of the following five broad areas of market and

public concern: (1) Protection of market participants and the public;

(2) efficiency, competitiveness, and financial integrity of futures

markets; (3) price discovery; (4) sound risk management practices; and

(5) other public interest considerations.

In light of the provisions of the Dodd-Frank Act that expand the

``commodity pool operator'' and ``commodity trading advisor''

definitions to include swap-related activities, these amendments

incorporate into the existing Part 4 framework regulations to take

account of the swap-related activities of CPOs and CTAs. Specifically,

the amendments subject CPOs and CTAs when involved with swap

transactions to the same Part 4 requirements that apply when they are

involved with commodity interest transactions, to the extent

regulations in place at the time of the enactment of the Dodd-Frank Act

did not clearly do so.\22\ The revision to Regulation 4.30 excepts SDs

from the prohibition on accepting margin to treat them equivalently

with FCMs and RFEDs. In addition, these amendments delete Regulation

4.32, pertaining to trading by registered CTAs on DTEFs, given the

repeal by the Dodd-Frank Act of CEA Section 5a, which authorized such

trading facilities.

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\22\ As is explained above, when the Dodd-Frank Act extended the

statutory definitions of the terms ``commodity pool operator'' and

``commodity trading advisor,'' those existing Part 4 regulations

that applied generally to CPOs and CTAs became applicable to CPOs

and CTAs captured by the expanded statutory definitions, without

further amendment. Certain other existing Part 4 regulations,

however, spoke specifically to activities involving commodity

interests, but not to swap activities. Accordingly, this rulemaking

amends this latter subset of Part 4 regulations by making them

applicable to swap activities, thus closing the regulatory gap that

would otherwise exist.

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In the Proposal the Commission sought public comment on the costs

and benefits of its contemplated amendments to Part 4.\23\ The

Commission did not receive any comments in response to this request.

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\23\ 76 FR 11701, 11703.

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Section 15(a) Factors

(1) Protection of market participants and the public.

The Commission believes the amendments to the Part 4 regulations

will provide protection to market participants and the public by

requiring CPOs and CTAs to include information on swap intermediaries

and activities in the disclosure, reporting and recordkeeping framework

under Part 4. For example, Regulation 4.24(j) has provided protections

to commodity pool participants by requiring their CPO to disclose any

actual or potential conflict of interest with any FCM with whom their

pool was required to maintain its account. The amendment to Regulation

4.24(j) the Commission has adopted will provide similar protections, by

requiring the CPO to disclose any actual or potential conflict of

interest with any SD with whom their pool maintains its swap positions.

(2) Efficiency, competitiveness, and financial integrity of the

futures markets.

The Commission does not expect the amendments to Part 4 to have an

impact on the efficiency, competitiveness and financial integrity of

the commodity interest markets.

(3) Price Discovery.

The Commission does not expect the amendments to Part 4 to have an

impact on the market's price discovery functions.

(4) Sound risk management practices.

The Commission does not expect the amendments to Part 4 to have an

impact on risk management practices by CPOs, CTAs and other Commission

registrants. However, the requirement that CPOs and CTAs account for

SD, MSP and swap activities when complying with their disclosure,

reporting and recordkeeping requirements under Part 4 will benefit

prospective and actual pool participants and clients by ensuring that

these participants and clients are afforded the same customer

protections as participants and clients

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in all other commodity pools and managed account programs.

(5) Other public interest considerations.

The Commission has not identified any other public interest

considerations regarding the costs and benefits of the amendments to

Part 4.

List of Subjects in 17 CFR Part 4

Advertising, Brokers, Commodity futures, Commodity pool operators,

Commodity trading advisors, Customer protection, Reporting and

recordkeeping requirements, Swaps.

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 is revised to read as follows:

Authority: 7 U.S.C. 1a, 2, 6b, 6c, 6l, 6m, 6n, 6o, 12a and 23,

as amended by Title VII of the Dodd-Frank Wall Street Reform and

Consumer Protection Act, Pub. L. 111-203, 124 Stat. 1376 (July 21,

2010).

0

2. Section 4.7 is amended by adding paragraph (a)(2)(i)(C) to read as

follows:

Sec. 4.7 Exemption from certain part 4 requirements for commodity

pool operators with respect to offerings to qualified eligible persons

and for commodity trading advisors with respect to advising qualified

eligible persons.

* * * * *

(a) * * *

(2) * * *

(i) * * *

(C) A swap dealer registered pursuant to section 4s(a)(1) of the

Act, or a principal thereof;

* * * * *

0

3. Section 4.22 is amended by revising paragraph (a)(3) to read as

follows:

Sec. 4.22 Reporting to pool participants.

(a) * * *

(3) The Account Statement must also disclose any material business

dealings between the pool, the pool's operator, commodity trading

advisor, futures commission merchant, retail foreign exchange dealer,

swap dealer, or the principals thereof that previously have not been

disclosed in the pool's Disclosure Document or any amendment thereto,

other Account Statements or Annual Reports.

* * * * *

0

4. Section 4.23 is amended by:

0

a. Revising paragraphs (a)(1) and (a)(7); and

0

b. Revising paragraph (b)(1), to read as follows:

Sec. 4.23 Recordkeeping.

* * * * *

(a) * * *

(1) An itemized daily record of each commodity interest transaction

of the pool, showing the transaction date, quantity, commodity

interest, and, as applicable, price or premium, delivery month or

expiration date, whether a put or a call, strike price, underlying

contract for future delivery or underlying physical, swap type and

counterparty, the futures commission merchant and/or retail foreign

exchange dealer carrying the account and the introducing broker, if

any, whether the commodity interest was purchased, sold (including, in

the case of a retail forex transaction, offset), exercised, expired

(including, in the case of a retail forex transaction, whether it was

rolled forward), and the gain or loss realized.

* * * * *

(7) Copies of each confirmation or acknowledgment of a commodity

interest transaction of the pool, and each purchase and sale statement

and each monthly statement for the pool received from a futures

commission merchant, retail foreign exchange dealer or swap dealer.

* * * * *

(b) * * *

(1) An itemized daily record of each commodity interest transaction

of the commodity pool operator and each principal thereof, showing the

transaction date, quantity, commodity interest, and, as applicable,

price or premium, delivery month or expiration date, whether a put or a

call, strike price, underlying contract for future delivery or

underlying physical, swap type and counterparty, the futures commission

merchant or retail foreign exchange dealer carrying the account and the

introducing broker, if any, whether the commodity interest was

purchased, sold, exercised, or expired, and the gain or loss realized;

Provided, however, that if the pool operator is a counterparty to a

swap, it must comply with the swap data recordkeeping and reporting

requirements of Part 45 of this chapter, as applicable.

* * * * *

0

5. Section 4.24 is amended by:

0

a. Revising paragraph (g);

0

b. Revising paragraph (h)(1)(i);

0

c. Revising paragraph (i)(2)(xii);

0

d. Revising paragraphs (j)(1)(vi) and (j)(3); and

0

e. Revising paragraphs (l)(1)(iii), (l)(2) introductory text and

(l)(2)(i), to read as follows:

Sec. 4.24 General disclosures required.

* * * * *

(g) Principal risk factors. A discussion of the principal risk

factors of participation in the offered pool. This discussion must

include, without limitation, risks relating to volatility, leverage,

liquidity, counterparty creditworthiness, as applicable to the types of

trading programs to be followed, trading structures to be employed and

investment activity (including retail forex and swap transactions)

expected to be engaged in by the offered pool.

(h) * * *

(1) * * *

(i) The approximate percentage of the pool's assets that will be

used to trade commodity interests, securities and other types of

interests, categorized by type of commodity or market sector, type of

swap, type of security (debt, equity, preferred equity), whether traded

or listed on a regulated exchange market, maturity ranges and

investment rating, as applicable;

* * * * *

(i) * * *

(2) * * *

(xii) Any costs or fees included in the spread between bid and

asked prices for retail forex or, if known, swap transactions; and

* * * * *

(j) * * *

(1) * * *

(vi) Any other person providing services to the pool, soliciting

participants for the pool, acting as a counterparty to the pool's

retail forex or swap transactions, or acting as a swap dealer with

respect to the pool.

* * * * *

(3) Included in the description of such conflicts must be any

arrangement whereby a person may benefit, directly or indirectly, from

the maintenance of the pool's account with the futures commission

merchant and/or retail foreign exchange dealer and/or from the

maintenance of the pool's swap positions with a swap dealer, or from

the introduction of the pool's account to a futures commission merchant

and/or retail foreign exchange dealer and/or swap dealer by an

introducing broker (such as payment for order flow or soft dollar

arrangements) or from an investment of pool assets in investee pools or

funds or other investments.

* * * * *

(l) * * *

(1) * * *

(iii) The pool's futures commission merchants and/or retail foreign

exchange dealers and/or swap dealers and its introducing brokers, if

any.

(2) With respect to a futures commission merchant and/or retail

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foreign exchange dealer and/or swap dealer or an introducing broker, an

action will be considered material if:

(i) The action would be required to be disclosed in the notes to

the futures commission merchant's, retail foreign exchange dealer's,

swap dealer's or introducing broker's financial statements prepared

pursuant to generally accepted accounting principles;

* * * * *

0

6. Section 4.30 is revised to read as follows:

Sec. 4.30 Prohibited activities.

(a) Except as provided in paragraph (b) of this section, no

commodity trading advisor may solicit, accept or receive from an

existing or prospective client funds, securities or other property in

the trading advisor's name (or extend credit in lieu thereof) to

purchase, margin, guarantee or secure any commodity interest of the

client.

(b) The prohibition in paragraph (a) of this section shall not

apply to:

(1) A futures commission merchant that is registered as such under

the Act;

(2) A leverage transaction merchant that is registered as a

commodity trading advisor under the Act;

(3) A retail foreign exchange dealer that is registered as such

under the Act; or

(4) A swap dealer that is registered as such under the Act, with

respect to funds, securities or other property accepted to purchase,

margin, guarantee or secure any swap that is not cleared through a

derivatives clearing organization.

Sec. 4.32 [Removed and Reserved]

0

7. Section 4.32 is removed and reserved.

0

8. Section 4.33 is amended by:

0

a. Revising paragraph (a)(6); and

0

b. Revising paragraph (b)(1), to read as follows:

Sec. 4.33 Recordkeeping.

* * * * *

(a) * * *

(6) Copies of each confirmation or acknowledgment of a commodity

interest transaction, and each purchase and sale statement and each

monthly statement received from a futures commission merchant, a retail

foreign exchange dealer or a swap dealer.

* * * * *

(b) * * *

(1) An itemized daily record of each commodity interest transaction

of the commodity trading advisor, showing the transaction date,

quantity, commodity interest, and, as applicable, price or premium,

delivery month or expiration date, whether a put or a call, strike

price, underlying contract for future delivery or underlying physical,

swap type and counterparty, the futures commission merchant and/or

retail foreign exchange dealer carrying the account and the introducing

broker, if any, whether the commodity interest was purchased, sold

(including, in the case of a retail forex transaction, offset),

exercised, expired (including, in the case of a retail forex

transaction, whether it was rolled forward), and the gain or loss

realized; Provided, however, that if the trading advisor is a

counterparty to a swap, it must comply with the swap data recordkeeping

and reporting requirements of Part 45 of this chapter, as applicable.

* * * * *

0

9. Section 4.34 is amended by:

0

a. Revising paragraph (g);

0

b. Revising paragraph (i)(2);

0

c. Revising paragraph (j)(3); and

0

d. Revising paragraphs (k)(1)(iii), (k)(2) introductory text and

(k)(2)(i), to read as follows:

Sec. 4.34 General disclosures required.

* * * * *

(g) Principal risk factors. A discussion of the principal risk

factors of this trading program. This discussion must include, without

limitation, risks due to volatility, leverage, liquidity, and

counterparty creditworthiness, as applicable to the trading program and

the types of transactions and investment activity expected to be

engaged in pursuant to such program (including retail forex and swap

transactions, if any).

* * * * *

(i) * * *

(2) Where any fee is determined by reference to a base amount

including, but not limited to, ``net assets,'' ``gross profits,'' ``net

profits,'' ``net gains,'' ``pips'' or ``bid-asked spread,'' the trading

advisor must explain how such base amount will be calculated. Where any

fee is based on the difference between bid and asked prices on retail

forex or swap transactions, the trading advisor must explain how such

fee will be calculated;

* * * * *

(j) * * *

(3) Included in the description of any such conflict must be any

arrangement whereby the trading advisor or any principal thereof may

benefit, directly or indirectly, from the maintenance of the client's

commodity interest account with a futures commission merchant and/or

retail foreign exchange dealer, and/or from the maintenance of the

client's swap positions with a swap dealer or from the introduction of

such account through an introducing broker (such as payment for order

flow or soft dollar arrangements).

(k) * * *

(1) * * *

(iii) Any introducing broker through which the client will be

required to introduce its account to the futures commission merchant

and/or retail foreign exchange dealer and/or swap dealer.

(2) With respect to a futures commission merchant, retail foreign

exchange dealer, swap dealer or introducing broker, an action will be

considered material if:

(i) The action would be required to be disclosed in the notes to

the futures commission merchant's, retail foreign exchange dealer's,

swap dealer's or introducing broker's financial statements prepared

pursuant to generally accepted accounting principles;

* * * * *

Dated: Issued in Washington, DC, on August 23, 2012, by the

Commission.

Sauntia S. Warfield,

Assistant Secretary of the Commission.

Appendices to Amendments to Commodity Pool Operator and Commodity

Trading Advisor Regulations Resulting From the Dodd-Frank Act--

Commission Voting Summary and Statements of Commissioners

Note: The following appendices will not appear in the Code of

Federal Regulations.

Appendix 1--Commission Voting Summary

On this matter, Chairman Gensler and Commissioners Sommers,

Chilton, O'Malia and Wetjen voted in the affirmative; no

Commissioner voted in the negative.

Appendix 2--Statement of Chairman Gary Gensler

I support the final rule to amend certain provisions of Part 4

of the Commission's regulations regarding the operations and

activities of commodity pool operators (CPOs) and commodity trading

advisors (CTAs). The amendments ensure that CFTC regulations with

regard to CPOs and CTAs reflect changes made to the Commodity

Exchange Act by the Dodd-Frank Wall Street Reform and Consumer

Protection Act (Dodd-Frank Act).

Consistent with Dodd-Frank's expansion of the CPO and CTA

definitions to include those involved in swaps and advising on

swaps, the final amendments require swaps information to be included

in the disclosure, reporting and recordkeeping obligations that

currently exist for CPOs and CTAs under Part 4. Such information

will enhance customer

[[Page 54360]]

protections by increasing the transparency of CPO and CTA swap

activities to their pool participants and clients.

[FR Doc. 2012-21606 Filed 9-4-12; 8:45 am]

BILLING CODE 6351-01-P

Last Updated: September 5, 2012