All Letters

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).

10-01 ; Part 1 and Part 30; Interpretation
DCIO responded to a request for guidance from the Joint Audit Committee (JAC) as to investments of customer funds by futures commission merchants (FCMs) in corporate debt securities guaranteed by the Federal Deposit Insurance Corporation (FDIC) under its Temporary Liquidity Guarantee Program (TLGP). The letter sets forth the conditions under which TLGP securities guaranteed by the FDIC may be permitted investments for customer segregated funds under Regulation 1.25 or customer secured amount funds under Regulation 30.7, and further specifies the necessary haircuts to FCM adjusted net capital under Regulation 1.17. The letter also provides guidance to the JAC as to whether, and to what extent, Regulation 1.32 permits offsets of FCM customer account deficits against TLGP securities the customer has deposited for its account with the FCM.

10-04 ; Section 4d(1); No-Action
The Division of Clearing and Intermediary Oversight issued an IB registration no-action position to a United States bank whose foreign branches wish to refer foreign customers to an affiliated registered FCM. This position was based in part on the branches being located outside the United States and the FCM accepting liability for the foreign branches.

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.

10-02 ; 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).

10-09 ; 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).

10-05 ; Regulation 1.35(a-1)(1); No-Action
The Division of Clearing and Intermediary Oversight (Division) denied a request for relief from the requirement that an introducing broker (IB) provide specific customer account identifiers to the IB’s clearing futures commission merchant at or prior to the time of order entry. The Division found insufficient as grounds for the requested relief the requester’s assertion that compliance with the requirement would result in price “slippage” and poor customer order fills.

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.

10-06 ; 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.

10-13 ; 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.

10-19 ; Section 4m(1); No-Action
The Division of Clearing and Intermediary Oversight provided no-action relief to the general partner of a commodity pool from registering as a CPO under Section 4m(1) of the Commodity Exchange Act, and allowed an affiliated, registered CPO (“designee”) to serve as the CPO of the pool instead, where, among other things: (1) the general partner and the designee are under common ownership and control; (2) the general partner has delegated all of its management authority to the designee; (3) the general partner does not engage in the solicitation of investors for the pool and does not manage property of the pool; and (4) the general partner and designee executed and submitted to the Division a written acknowledgement of joint and several liability for any violation by either of them of the Act or the Commission’s regulations.

10-20 ; Sections 5 and 5a; No-Action
The Division of Market Oversight issued a letter granting no-action relief to permit the International Maritime Exchange ASA (Imarex or the Exchange) to make its electronic trading and order matching system (Trayport), and its Application Program Interface (API), available via direct access to Exchange trading members in the U.S. without obtaining contract market designation or registration as a derivatives transaction execution facility pursuant to Sections 5 and 5a of the CEAct. The relief applies to Imarex trading members in the U.S. that qualify as “eligible contract participants” (ECP) (as defined in Section 1a(12) of the CEAct) trading for their proprietary accounts; Imarex trading members that are registered as futures commission merchants (FCM) that submit orders to Trayport for execution from or on behalf of U.S. customers that qualify as ECPs; firms exempt from such registration pursuant to Commission Rule 30.10 (Rule 30.10 Firms) that accept orders through automated order routing systems for transmission to Trayport from or on behalf of U.S. customers that qualify as ECPs; and Imarex trading members that are registered as Commodity Pool Operators (CPO) or Commodity Trading Advisors (CTA), or exempt from such CPO or CTA registration pursuant to Commission Regulation 4.13 or 4.14, that submit orders for execution on behalf of U.S. pools they operate that qualify as ECPs or accounts of U.S. customers that qualify as ECPs, for which they have discretionary authority, respectively, provided that an FCM or Rule 30.10 Firm acts as clearing firm and guarantees without limitation all such trades of the CPO or CTA effected through submission of orders on Trayport.

10-21 ; Regulation 1.25; Interpretation
Securities and Exchange Commission (SEC) rule 22e-3 (Rule 22e-3), adopted by the SEC February 23, 2010 and effective May 5, 2010, allows a money market mutual fund (MMMF or fund) to suspend redemptions and postpone payment of redemption proceeds to facilitate an orderly liquidation of the fund. The Division of Clearing and Intermediary Oversight (the Division) received a letter from the Joint Audit Committee requesting an interpretation of the impact, if any, of Rule 22e-3 on Reg. 1.25. In its response, the Division provided an overview of the Reg. 1.25 treatment of MMMFs, outlined Rule 22e-3, and discussed the interplay of Reg. 1.25 and Rule 22e-3. The Division concluded that Rule 22e-3 falls within the parameters of Reg. 1.25(c)(5)(ii)(D) and therefore the status of an MMMF that otherwise qualifies as a Reg. 1.25 permitted investment would not change as a result of the new rule.

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.

10-31 ; 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.

10-27 ; 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.

10-25 ; Regulation 4.10(d)(1); Interpretation
The Division of Clearing and Intermediary Oversight issued an interpretation that a limited liability company and a trust operated by the limited liability company are not commodity pools where all participants are close family members.

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.

10-30 ; 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.

10-29 ; 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.

10-28 ; 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.

10-26 ; Commission Regulation 36.3; No-Action
The Division of Market Oversight issued a no-action letter to the IntercontinentalExchange, Inc. (ICE) confirming that the Division will not recommend that the Commission initiate enforcement action against ICE for failure to provide a written demonstration of compliance with the significant price discovery contracts (SPDC) core principle regime within 30 days of issuance of the Commission’s order deeming the Mid-C, PJM, and SP-15 contracts as SPDCs if ICE provides a written demonstration of compliance with the core principle regime for the three contracts by August 18, 2010.

10-32 ; Section 2(a); No-Action
No-Action Relief Request of Turkish Derivatives Exchange in Connection with the Offer and Sale in the United States of its Futures Contract Based on the ISE-30 Stock Index.

10-33 ; Section 4m(1); No-Action
The Division of Clearing and Intermediary Oversight provided no-action relief to the general partner of a commodity pool from registering as a CPO under Section 4m(1) of the Commodity Exchange Act, and allowed an affiliated, registered CPO (“designee”) to serve as the CPO of the pool instead, where, among other things: (1) the general partner and the designee are under common ownership and control; (2) the general partner has delegated all of its management authority to the designee; (3) the general partner does not engage in the solicitation of investors for the pool and does not manage property of the pool; and (4) the general partner and designee executed and submitted to the Division a written acknowledgement of joint and several liability for any violation by either of them of the Act or the Commission’s regulations in connection with the operation of the pool.

10-34 ; Section 4m(1); No-Action
The Division of Clearing and Intermediary Oversight provided no-action relief to the general partner of a commodity pool from registering as a CPO under Section 4m(1) of the Commodity Exchange Act, and allowed an affiliated, registered CPO (“designee”) to serve as the CPO of the pool instead, where, among other things: (1) the general partner and the designee are under common ownership and control; (2) the general partner has delegated all of its management authority to the designee; (3) the general partner does not engage in the solicitation of investors for the pool and does not manage property of the pool; and (4) the general partner and designee executed and submitted to the Division a written acknowledgement of joint and several liability for any violation by either of them of the Act or the Commission’s regulations.

10-35 ; CEA Sections 4f(a)-(c), 4g(a), 4g(c), and 4g(d); Commission Regulations 1.55, 1.14, 1.15, 1.17(a)(1)(i)(B), and 1.31; Other Written Communication
This letter withdraws relief previously granted in staff letters 02-22, 02-90 and 06-20. The previous letters provided “no-action” relief to registered securities broker-dealers and their registered representatives in connection with their offer and sale of certain futures contracts. The Division determined to withdraw the relief on a prospective basis based primarily on consumer protection issues including the uncertain treatment of customer funds in the event of insolvency of a broker.

10-36 ; Sections 2(c)(2)(B)(iv)(I)(bb) and 2(c)(2)(C)(iii)(I)(bb); Interpretation
The Division confirmed that under the specific facts represented to it, a firm that was required to be registered as an IB, and was so registered, would not also be required to register as a CTA in connection with providing certain services to its retail foreign exchange customers.

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.