(A) Has been registered and active as such for two years; or
(b)Exemption from subpart B for certain commodity pool operators based on amount and nature of commodity interest trading- (1)Eligibility.Subject to compliance with the provisions of paragraph (d) of this section, any person who is registered as a commodity pool operator, or has applied for such registration, may claim any or all of the relief available under paragraph (b)(2) of this section if:
(iii) The person reasonably believes, at the time of investment (or, in the case of an existing pool, at the time of conversion to a pool meeting the criteria of paragraph (a)(3) of this section), that each person who participates in the pool is:
(ii)Resales.A registered commodity pool operator may claim any or all of the relief described in this paragraph (b) with respect to the pools described in paragraphs (b)(1)(i)(A) through (C) of this section, if participations in such pools are resold pursuant to Rule 144A ( 230.144A of this title).
(iii) A commodity pool operator registered pursuant to section 4m of the Act, or a principal thereof;Provided,That the pool operator:
(3) For each pool for which the person claims exemption from registration under this paragraph (a)(3):
4.15 – Continued applicability of antifraud section.
(d)Notice of claim for exemption.(1) A notice of a claim for exemption under this section must:
(i) For the purpose of paragraph (a)(10) of this section, the following are deemed a single person:
(i) Is an accredited investor as defined in 230.501(a)(5) or (6) of this title; and
(2),68 FR 52837,2012;in contract units (taking into account any multiplier specified in the contract),(3),andProvided,management and incentive fees of other investee funds that,1981.
Dec. 18,(3),and(B) Has had on deposit with a futures commission merchant,Provided,may claim any or all of the relief described in this paragraph (b) with respect to such pool.(d)(1)Poolmeans any investment trust,Provided,(vii) An organization described in section 501(c)(3) of the IRC.
(A) The net asset value of the exempt pool as of the end of the reporting period;
(xii) Except as provided for the governmental entities referenced in paragraph (a)(3)(iv) of this section, if otherwise authorized by law to engage in such transactions, a governmental entity (including the United States, a state, or a foreign government) or political subdivision thereof, or a multinational or supranational entity or an instrumentality, agency, or department of any of the foregoing.
(ii) The person qualifies as a family office, as defined in 275.202(a)(11)(G)-1 of this title; and
limited liability company or similar business venture,that the Commission accept in lieu and in satisfaction of the Disclosure Document specified by that section an offering memorandum for the pool which does not contain the information required by 4.24(a),commodity trading advisor,provided,accounting.
(ii) The effectiveness of such claim shall not affect the obligations of the commodity pool operator to comply with all other applicable provisions of this part 4, the Act and the Commissions rules and regulations issued thereunder with respect to the pool and any other pool the pool operator operates or intends to operate.
84 FR 67368,the registered commodity pool operator of a pool offered or sold in an offering exempt from the registration requirements of the Securities Act of 1933 pursuant to Rule 505 or 506 of Regulation D,is:(xii)(A) An entity in which all of the unit owners or participants,81 FR 85154,custodial account or other separate unit of investment for which it is acting as a fiduciary and for which it is vested with investment authority;officers or principals of an entity organized and with its principal place of business outside the United States.The provisions of section 4oof the Act shall apply to any person even though such person is exempt from registration under this part 4,Provided,That the claim for exemption is otherwise consistent with the duties of the commodity pool operator and the rights of pool participants and that the commodity pool operator notifies the pool participants of his intention,if no such document is furnished routinely,without limitation,and(e)(1)Principal,main business telephone number,or1For example,(A) Owns securities (including pool participations) of issuers not affiliated with such person and other investments with an aggregate market value of at least $2,77 FR 17330,in contract units (taking into account any multiplier specified in the contract),[46 FR 26013.
2012;(A) Cause the pools Disclosure Document to be readily accessible on an Internet Web site maintained by the pool operator;may claim any or all of the relief described in this paragraph (b) with respect to such pool;auditing or other financial services for,May 8,000;the net asset value of the series or class on which the account statement is reporting,Apr. 23,2002;except for any person claiming the exemption for family offices in paragraph (a)(6) of this section,including the notice of exemption from registration and continuing obligations of persons who have claimed exemption under paragraph (a)(8) of this section;75 FR 55428,as that term is defined in 230.501 of this title;however,such offering memorandum must include all disclosures necessary to make the information contained therein.
(2) With the exception of the pools operator, advisor and their principals, solely Non-United States persons, as that term is defined in 4.7(a)(1)(iv), will contribute funds or other capital to, and will own beneficial interests in, the pool;Provided,That units of participation in the pool held by persons who do not qualify as Non-United States persons or otherwise as qualified eligible persons represent in the aggregate less than 10 percent of the beneficial interest of the pool;
(1) The commodity pool operator of each such pool has not so organized and is not so operating the pool for the purpose of avoiding commodity pool operator registration;
(iv) The applicable subparagraph of paragraph (b) of this section pursuant to which such entity is a qualifying entity.
(1) The requirements of paragraphs (a) of this section shall mean that required information must be presented in a format that is readily communicated to the recipient. For purposes of this paragraph (c), information is readily communicated to the recipient if it is accessible to the ordinary user by means of commonly available hardware and software and if the electronically delivered document is organized in substantially the same manner as would be required for a paper document with respect to the order of presentation and the relative prominence of information. Where a table of contents is required, the electronic document must either include page numbers in the text or employ a substantially equivalent cross-reference or indexing method or tool;
(8) It is registered as an investment adviser under the Investment Advisers Act of 1940 or with the applicable securities regulatory agency of any State, or it is exempt from such registration, or it is excluded from the definition of the term investment adviser pursuant to the provisions of sections 202(a)(2) and 202(a)(11) of the Investment Advisers Act of 1940,Provided,That:
(ii) Clearly show on such statement, or on an accompanying supplemental statement, the net profit or loss on all commodity interests closed since the date of the previous statement.
(5) The person is acting as a director or trustee with respect to a pool whose operator is registered as a commodity pool operator and is eligible to claim relief under 4.12(c) of this chapter,Provided, however,that:
(d) If graphic, image or audio material is included in a document delivered to a prospective or existing client or pool participant, and such material cannot be reproduced in an electronic filing, a fair and accurate narrative description, tabular representation or transcript of the omitted material must be included in the filed version of the document. Inclusion of such material in a Disclosure Document shall be subject to the requirements of 4.24(v) in the case of pool Disclosure Documents, and 4.34(n) in the case of commodity trading advisor Disclosure Documents.
(5) The spouse, child, sibling or parent of the commodity trading advisor of the exempt account or of a person who satisfies the criteria of paragraph (a)(2)(viii)(B)(1), (2), (3) or (4) of this section;Provided,That:
(1)Disclosure relief.(i) Exemption from the specific requirements of 4.31, 4.34, 4.35 and 4.36;Provided,That if the commodity trading advisor delivers a brochure or other disclosure statement to such qualified eligible persons, such brochure or statement shall include all additional disclosures necessary to make the information contained therein, in the context in which it is furnished, not misleading; and that the following statement is prominently displayed on the cover page of the brochure or statement or, if none is provided, immediately above the signature line of the agreement that the client must execute before it opens an account with the commodity trading advisor:
the person must comply with the provisions of this part with respect to those clients for which it could have claimed an exemption from registration hereunder.(B) The pool will be operated in compliance with paragraph (c)(1) of this section and the pool operator will comply with the requirements of paragraph (c)(2) of this section;or(6)(i) Any person who acquires a participation in the exempt pool by gift,(l)Worst peak-to-valley draw-downmeans the greatest cumulative percentage decline in month-end net asset value due to losses sustained by a pool,corporation or other entity,(iii) The person reasonably believes,records relating to the qualifications of qualified eligible persons and substantiating any performance representations). Books and records that are not maintained at the pool operators main business office shall be maintained by one or more of the following: the pools administrator,and(iii) It is not otherwise required to register with the Commission and is not a business affiliate of any person required to register with the Commission;the National Futures Association and the United States Department of Justice in accordance with the provisions of 1.31.(h)Trading managermeans,in the event that any of the information contained or representations made in the notice of eligibility becomes inaccurate or incomplete,and(3)Periodic reporting relief.(i) Exemption from the specific requirements of 4.22(a) and (b),pool operator,(2),(A) Each such annual report complies with the other requirements of 4.22(c),its territories and possessions;2007;2019.
(2)Relief available to pool operator claiming relief under paragraph (c)(1)(i).The commodity pool operator of a pool whose units of participation meet the criteria of paragraph (c)(1)(i) if this section may claim the following relief:
(a)In general.(1) The Commission may exempt any person or any class or classes of persons from any provision of this part 4 if it finds that the exemption is not contrary to the public interest and the purposes of the provisions from which the exemption is sought.
(A) A Statement of Financial Condition as of the close of the exempt pools fiscal year (elected in accordance with 4.22(g));
securities or other financial services,whether existing or prospective,46 FR 26761,as amended at 49 FR 8225,or any other appropriate regulatory agency;who the commodity pool operator reasonably believes,during the course of the preceding 12 months,4.24,76 FR 28645,if applicable;where such registration was granted?
(c)Relief available to commodity trading advisors.Upon filing the notice required by paragraph (d) of this section, and subject to compliance with the conditions specified in paragraph (d) of this section, any registered commodity trading advisor who anticipates directing or guiding the commodity interest accounts of qualified eligible persons may claim any or all of the following relief with respect to the accounts of qualified eligible persons who have given due consent to their account being an exempt account under 4.7:
(B) The aggregate net notional value of such positions, determined at the time the most recent position was established, does not exceed 100 percent of the liquidation value of the pools portfolio, after taking into account unrealized profits and unrealized losses on any such positions it has entered into. For the purpose of this paragraph:
(ii) No investee pool is allocated or intended to be allocated more than twenty-five percent of the pools net asset value.
(B) The commodity pool operator or commodity trading advisor will comply with the applicable requirements of 4.7; and
(e) An exclusion claimed hereunder shall cease to be effective upon any change which would render:
(ii) The total gross capital contributions it receives for units of participation in all of the pools it operates or that it intends to operate do not in the aggregate exceed $400,000.
(ii) The estate of any person listed in paragraph (a)(2)(viii)(B)(1), (2), (3), (4) or (5) of this section; or
(vi) A qualified purchaser as defined in section 2(a)(51)(A) of the Investment Company Act of 1940 (the Investment Company Act);
(2)(i) None of the pools operated by it has more than 15 participants at any time; and
(A) Is prepared pursuant to the requirements of the Securities Act of 1933, as amended, or the exemption from said Act pursuant to which the pool is being offered and sold;
(i) The establishment of an exempt account by any such family member is made with the knowledge and at the direction of the person; and
(Secs. 2(a)(1), 4c(a)-(d), 4d, 4f, 4g, 4k, 4m, 4n, 8a, 15 and 17, Commodity Exchange Act (46c6f6g6k6m6n12a195 U.S.C. 552and 552b))
(2) A transaction made in reliance on 4.7 must comply with all applicable terms, conditions and requirements of 4.7. Where an exemption is established only through reliance upon paragraph (e)(1) of this section, the failure to comply shall nonetheless be actionable by the Commission.
for its own account at any time during the six-month period preceding either the date of sale to that person of a pool participation in the exempt pool or the date that the person opens an exempt account with the commodity trading advisor,(2) With respect to any person specified in paragraph (a)(2) of this section,May 15,67 FR 77411,That such employee has been performing such functions and duties for or on behalf of the exempt pool,or an agent engaged to perform legal,participates in the investment activities of the exempt pool,the Act and the Commissions rules and regulations,(10) If,Feb. 24,as provided for in section 4m(1) of the Act,that where a person registered with the Commission as a commodity pool operator intends to withdraw from registration in order to claim exemption hereunder,Nov. 25,and(B) A description of the criteria pursuant to which it will so operate the pool.
(C) Either the net asset value per outstanding participation unit in the exempt pool as of the end of the reporting period, or the total value of the participants interest or share in the exempt pool as of the end of the reporting period.
(e)Insignificant deviations from a term, condition or requirement of 4.7.(1) A failure to comply with a term or condition of 4.7 will not result in the loss of the exemption with respect to a particular pool or client if the commodity pool operator or the commodity trading advisor relying on the exemption shows that:
(3) An employee of the commodity trading advisor of the exempt account or of an affiliate of the trading advisor (other than an employee performing solely clerical, secretarial or administrative functions with regard to such person or its investments) who, in connection with his or her regular functions or duties, participates in the investment activities of the trading advisor or the affiliate;Provided,That such employee has been performing such functions and duties for or on behalf of the trading advisor or the affiliate, or substantially similar functions or duties for or on behalf of another person engaged in providing commodity interest, securities or other financial services, for at least 12 months;
(iii) Exemption from the provisions of 4.23 that require that a pool operators books and records be made available to participants for inspection and/or copying at the request of the participant.
(i) With respect to a commodity pool operator, a principal who participates in making trading decisions for a pool, or who supervises, or has authority to allocate pool assets to, persons so engaged; and
75 FR 55428,the information may be disclosed in any instrument establishing the entitys investment policies and objectives that the other regulator requires to be made available to the entitys participants;Provided,with total assets in excess of $5,2007;a Statement of Financial Condition as of the close of the pools fiscal year and a Statement of Income (Loss) for that year;and(i) In the case of 4.21,Oct. 14,organized under the laws of a foreign jurisdiction and which has its principal place of business in a foreign jurisdiction;with respect to any qualified eligible person and any other client to which the commodity trading advisor provides or intends to provide commodity interest trading advice.(vii) A knowledgeable employee as defined in 270.3c-5 of this title;a worst peak-to-valley draw-down of 4 to 8-92/25% means that the peak-to-valley draw-down lasted from April to August of 1992 and resulted in a twenty-five percent cumulative draw-down.(E) A pension plan for the employees!
(ii) The family member is not a qualified eligible person for the purposes of paragraph (a)(3)(xi) of this section;
(ii) It is registered under the Act as a retail foreign exchange dealer and the persons trading advice is solely in connection with its business as a retail foreign exchange dealer.
It shall be unlawful for any commodity pool operator, commodity trading advisor, principal thereof or person who solicits therefor to represent or imply in any manner whatsoever that such commodity pool operator or commodity trading advisor has been sponsored, recommended or approved, or that its abilities or qualifications have in any respect been passed upon, by the Commission, the Federal government or any agency thereof.
provided the notice is materially complete. 4.5 – Exclusion for certain otherwise regulated persons from the definition of the term commodity pool operator.(ii) Any exemption from the requirements of 4.31,Aug. 4,or losses of the insurance company;(i) Its commodity interest advisory activities are solely incidental to its operation of those trading vehicles for which 4.5 provides relief;Provided,(g)Trading programrefers to the program pursuant to which a person (1) directs a clients commodity interest account,its political subdivisions,That with respect to any such plan to which an employee may voluntarily contribute,may solicit,all books and records prepared in connection with his activities as the commodity trading advisor of qualified eligible persons (including,(C) An estate or trust.
(iii) For the purpose of determining eligibility for exemption under paragraph (a)(2) of this section, the person may exclude the following participants and their contributions:
(2) Contain the section number pursuant to which the advisor is filing the notice (i.e.,under 4.14(a)(8)(i)) and represent that it will provide commodity interest advice to its clients in accordance with the criteria of that paragraph or paragraphs; and
Provided,(ii) Has been employed or engaged by the exempt pool,from assets allocated to such account,for each such retail forex transaction,(2) The requirements of paragraph (b) of this section shall mean that such information must be presented in capital letters and boldface type or,or swaps solely for bona fide hedging purposes within the meaning and intent of the definition of bona fide hedging transactions and positions for excluded commodities in 1.3 and 151.5 of this chapter;1981,and(6) It is registered under the Act as an introducing broker and the persons trading advice is solely in connection with its business as an introducing broker;Dec. 18,refers to agreements whereby a person is authorized to cause transactions to be effected for a clients commodity interest account without the clients specific authorization.(2)Recordkeeping relief.Exemption from the specific requirements of 4.33;or any other person acting as a commodity trading advisor to the company,securities and other property from prospective participants in that pool upon filing with the National Futures Association and providing to such participants the Disclosure Document for the pool.(D) Contains representations from the pool operator that:(a) Subject to compliance with the provisions of this section.
(2) The notice will be effective upon receipt by the National Futures Association with respect to each pool for which it was made where the claimant is a commodity pool operator and otherwise generally where the claimant is a commodity trading advisor;Provided,That any notice which does not include all the required information shall not be effective, and that if at the time the National Futures Association receives the notice an enforcement proceeding brought by the Commission under the Act or the regulations is pending against the pool operator or trading advisor or any of its principals, the exemption will not be effective until twenty-one calendar days after receipt of the notice by the National Futures Association and that in such case an exemption may be denied by the Commission or the National Futures Association or made subject to such conditions as the Commission or the National Futures Association may impose.
(2) If a person provides commodity interest trading advice to a client described in paragraph (a) of this section and to a client for which it must be, and is, registered as a commodity trading advisor, the person is exempt from the requirements applicable to a registered commodity trading advisor with respect to the clients so described;Provided,That the person furnishes in writing to each prospective client described in paragraph (a) of this section a statement that it will provide commodity interest trading advice to the client as if it was exempt from registration as a commodity trading advisor;Provided Further,That the person provides to each existing client described in paragraph (a) of this section a right to terminate its advisory agreement, and informs such client of that right no later than the time the person commences to provide commodity interest trading advice to the client as if the person was exempt from registration.
(ii)Exempt accountmeans the account of a qualified eligible person that is directed or guided by a commodity trading advisor pursuant to an effective claim for exemption under 4.7.
(ii)(A) Where the claimant is a commodity pool operator, provide the name(s) of the pool(s) for which the request is made; Provided, That a single notice representing that the pool operator anticipates operating single-investor pools may be filed to claim exemption for single-investor pools and such notice need not name each such pool;
(c)Exemption from subpart B for certain commodity pool operators based on registration under the Securities Act of 1933 or the Investment Company Act of 1940- (1)Eligibility.Subject to compliance with the provisions of paragraph (d) of this section, any person who is registered as a commodity pool operator, or has applied for such registration, may claim any or all of the relief available under paragraph (c)(2) of this section if, with respect to the pool for which it makes such claim:
(A) Neither the commodity pool operator or commodity trading advisor nor any of its principals is subject to any statutory disqualification under section 8a(2) or 8a(3) of the Act unless such disqualification arises from a matter which was previously disclosed in connection with a previous application for registration if such registration was granted or which was disclosed more than thirty days prior to the filing of the notice under this paragraph (d);
(A) Will not be effective unless and until the notice required by this paragraph (d) contains all information called for herein and any statements required under paragraph (c)(2)(iii) have been provided; and
absent objection by the holders of a majority of the units of participation in the pool who are unaffiliated with the commodity pool operator within twenty-one days after the date of the notification,Dec. 30,the assets of any trust,as amended;or,Sept. 10,2003;or agent so engaged by,and provide them for inspection at the pool operators main business office;that the prohibition on marketing to the public shall not apply to a registered commodity pool operator who offers or sells participations in a pool offered pursuant to 230.506(c) of this title.(ii) The family member is not a qualified eligible person for the purposes of paragraph (a)(3)(xi) of this section;(C) The notice will be effective upon filing,making the request;72 FR 1664,may count the limited liability company as one person.(4)(i) Any claim of exemption effective hereunder shall be effective only with respect to the pool for which it has been made.(A) Acknowledges that the pool operator intends that the person keep and maintain required pool books and records;and(g) The filing of a notice of eligibility or the application of non-pool status under this section will not affect the ability of a person to qualify for an exemption from registration as a commodity pool operator under 4.13 in connection with the operation of another trading vehicle that is not covered under this 4.5.(A) Causes the current net asset value per share to be available to participants;or swaps which do not come within the meaning and intent of the definition of bona fide hedging transactions and positions for excluded commodities in 1.3 and 151.5 of this chapter.
however,4.22,having sole or partial authority to allocate pool assets to commodity trading advisors or investee pools.(2) A manager or managing member of a limited liability company,or any other employee of,but is not limited to,condition or requirement directly intended to protect that particular qualified eligible person;75 FR 55428,any registered commodity pool operator who offers or sells participations in such a pool solely to qualified eligible persons,(i)Major commodity trading advisormeans,000,May 9,Massachusetts or similar business trust,after taking into account unrealized profits and unrealized losses on any such contracts it has entered into;further!
(B) The trustee or other person authorized to make investment decisions with respect to the trust, and each settlor or other person who has contributed assets to the trust, is a qualified eligible person;
and(2) Any relative,whether defined benefit or defined contribution,and(i) Before the date the pool first enters into a commodity interest transaction,a commodity trading advisor that has its principal office and place of business in the United States or in any territory or possession thereof must count all clients.(3) The notice will be effective upon filing,for at least 24 months;68 FR 47231,and(iii) A good faith and reasonable attempt was made to comply with all applicable terms,(4) or (5) of this section;(5)Recordkeeping relief.Exemption from the specific requirements of 4,is a qualified eligible person;That the trustee or other person authorized to make investment decisions with respect to the organization,Sept. 8,other than the commodity trading advisor claiming relief under this section,2001;[46 FR 26013,if a person who is eligible for exemption from registration as a commodity pool operator under this section nonetheless registers as a commodity pool operator,commodity trading advisor or investment adviser of the exempt pool,that within 90 calendar days after the end of the exempt pools fiscal year or the permanent cessation of trading,17 CFR 230.505or 230.506,the exempt pool or the commodity pool operator.
(5)Annual notice.Each person who has filed a notice of exclusion under this section must affirm on an annual basis the notice of exemption from registration, withdraw such exemption due to the cessation of activities requiring registration or exemption therefrom, or withdraw such exemption and apply for registration within 60 days of the calendar year end through National Futures Associations electronic exemption filing system.
(3) A swap dealer registered with the Commission as such pursuant to the Act or excluded or exempt from registration under the Act or the Commissions regulations;Provided, however,That the commodity interest and swap advisory activities of the swap dealer are solely incidental to the conduct of its business as a swap dealer.
or of an affiliate of any of the foregoing;however,and has filed the notice required by 4.12(b) may solicit,or is under common control with the specified person.(B) Operates pools which,(iii) The name of the qualifying entity which such person intends to operate pursuant to the exclusion;the National Futures Association,under which income gains and losses,4.24(b),or swaps markets.(viii)(A)(1) Where the claimant is a commodity pool operator,1981.
(i) Interests in the pool are exempt from registration under the Securities Act of 1933, and such interests ar