Electronic Filing of Disclosure Documents, 9568-9570 [E9-4740]
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9568
Federal Register / Vol. 74, No. 42 / Thursday, March 5, 2009 / Rules and Regulations
corresponding provisions of paragraph (g) of
this AD.
Material Incorporated by Reference
(l) None.
Issued in Renton, Washington, on February
17, 2009.
Ali Bahrami,
Manager, Transport Airplane Directorate,
Aircraft Certification Service.
[FR Doc. E9–4650 Filed 3–4–09; 8:45 am]
BILLING CODE 4910–13–P
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.
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).
SUMMARY:
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: bgold@cftc.gov.
SUPPLEMENTARY INFORMATION:
I. Background
dwashington3 on PROD1PC60 with RULES
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
1 17 CFR Part 4 (2008). The Commission’s
regulations can be accessed through the CFTC’s
Web site, www.cftc.gov.
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13:27 Mar 04, 2009
Jkt 217001
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
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
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:
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
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).
3 73 FR 71968. The Proposing Release may be
accessed through the CFTC’s Web site, at https://
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.
5 73 FR at 71968.
6 Id.
PO 00000
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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
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
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,
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.
8 73 FR at 71969. See Regulations 4.21(b) for
CPOs and 4.31(b) for CTAs.
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:
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Federal Register / Vol. 74, No. 42 / Thursday, March 5, 2009 / Rules and Regulations
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.
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
III. Related Matters
dwashington3 on PROD1PC60 with RULES
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
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.
10 See 73 FR 71968 n. 3.
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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9569
information directly from their
Disclosure Documents. The Commission
did not receive any comments relative
to its analysis of the RFA in the
Proposing Release.
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.
B. Paperwork Reduction Act
List of Subjects in 17 CFR Part 4
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
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.
Advertising, Brokers, Commodity
futures, Commodity pool operators,
Commodity trading advisors, Consumer
protection, Reporting and recordkeeping
requirements.
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.
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
15 44
U.S.C. 3501 et seq.
73 FR 71969 for the PRA section of the
Proposing Release.
17 7 U.S.C. 19(a).
16 See
PO 00000
Frm 00005
Fmt 4700
Sfmt 4700
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
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.
2. Revise paragraphs (d)(1) and (2) of
§ 4.26 to read as follows:
■
§ 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.
■ 3. Revise paragraph (d) of § 4.36 to
read as follows:
§ 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
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9570
Federal Register / Vol. 74, No. 42 / Thursday, March 5, 2009 / Rules and Regulations
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
DEPARTMENT OF THE TREASURY
Internal Revenue Service
26 CFR Part 1
[TD 9441]
RIN 1545–BI46
Section 482: Methods To Determine
Taxable Income in Connection With a
Cost Sharing Arrangement; Correction
dwashington3 on PROD1PC60 with RULES
AGENCY: Internal Revenue Service (IRS),
Treasury.
ACTION: Correction to final and
temporary regulations.
SUMMARY: This document contains
corrections to final and temporary
regulations (TD9441) that were
published in the Federal Register on
Monday, January 5, 2009 providing
further guidance and clarification
regarding methods under section 482 to
determine taxable income in connection
with a cost sharing arrangement in order
to address issues that have arisen in
administering the current regulations.
The temporary regulations affect
domestic and foreign entities that enter
into cost sharing arrangements
described in the temporary regulations.
DATES: This correction is effective
March 5, 2009, and is applicable on
January 5, 2009.
FOR FURTHER INFORMATION CONTACT:
Kenneth P. Christman, (202) 435–5265
(not a toll-free number).
SUPPLEMENTARY INFORMATION:
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13:27 Mar 04, 2009
Jkt 217001
Background
DEPARTMENT OF THE TREASURY
The final and temporary regulations
that are the subject of this document are
under sections 367 and 482 of the
Internal Revenue Code.
Internal Revenue Service
Need for Correction
[TD 9441]
As published, final and temporary
regulations (TD 9441), published
Monday, January 5, 2009 (74 FR 340) ,
contains errors that may prove to be
misleading and are in need of
clarification.
RIN 1545–BI46
Correction of Publication
PART 1—[CORRECTED]
Accordingly, the publication of the
final and temporary regulations (TD
9441), which was the subject of FR Doc.
E8–30715, is corrected as follows:
1. On page 346, column 2, in the
preamble, under the paragraph heading
‘‘4. Acquisition Price and Market
Capitalization Methods—Temp. Treas.
Reg. § 1.482–7T(g)(5) and (6), third
paragraph of the column, line 17, the
language ‘‘PCT Payor’s, nonroutine
contributions’’ is corrected to read ‘‘PCT
Payee’s, nonroutine contributions’’.
2. On page 347, column 1, in the
preamble, the language of the paragraph
heading ‘‘2. Contingent Payments—
Temp. Treas. Reg. § 1.482–7T(h)(2)(iv)
and (v)’’ is corrected to read ‘‘2.
Contingent Payments—Temp. Treas.
Reg. § 1.482–7T(h)(2)(iii) and (iv)’’.
3. On page 348, column 2, in the
preamble, under the paragraph heading
‘‘Special Analyses’’, last paragraph of
the column, line 13, the language
‘‘preamble to the cross-reference notice
of’’ is corrected to read ‘‘preamble to the
cross-referenced notice of’’.
4. On page 348, column 3, in the
preamble, under the paragraph heading
‘‘Drafting Information’’, second
paragraph of the column, line 2, the
language ‘‘proposed regulations is
Kenneth P.’’ is corrected to read
‘‘temporary regulations is Kenneth P.’’.
LaNita Van Dyke,
Chief, Publications and Regulations Branch
Legal Processing Division, Associate Chief
Counsel, (Procedure and Administration).
[FR Doc. E9–4656 Filed 3–4–09; 8:45 am]
BILLING CODE 4830–01–P
PO 00000
26 CFR Part 1
Section 482: Methods To Determine
Taxable Income in Connection With a
Cost Sharing Arrangement; Correction
AGENCY: Internal Revenue Service (IRS),
Treasury.
ACTION: Correcting amendment.
SUMMARY: This document contains
corrections to final and temporary
regulations (TD9441) that were
published in the Federal Register on
Monday, January 5, 2009 (74 FR 340)
providing further guidance and
clarification regarding methods under
section 482 to determine taxable income
in connection with a cost sharing
arrangement in order to address issues
that have arisen in administering the
current regulations. The temporary
regulations affect domestic and foreign
entities that enter into cost sharing
arrangements described in the
temporary regulations.
DATES: This correction is effective
March 5, 2009, and is applicable on
January 5, 2009.
FOR FURTHER INFORMATION CONTACT:
Kenneth P. Christman, (202) 435–5265
(not a toll-free number).
SUPPLEMENTARY INFORMATION:
Background
The final and temporary regulations
that are the subject of this document are
under sections 367 and 482 of the
Internal Revenue Code.
Need for Correction
As published, final and temporary
regulations (TD 9441) contains errors
that may prove to be misleading and are
in need of clarification.
List of Subjects in 26 CFR Part 1
Income taxes, Reporting and
recordkeeping requirements.
Correction of Publication
Accordingly, 26 CFR part 1 is
corrected by making the following
correcting amendments:
■
PART 1—INCOME TAXES
Paragraph 1. The authority citation
for part 1 continues to read in part as
follows:
■
Authority: 26 U.S.C. 7805 * * *
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]]>Agencies
[Federal Register Volume 74, Number 42 (Thursday, March 5, 2009)]
[Rules and Regulations]
[Pages 9568-9570]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-4740]
=======================================================================
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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: bgold@cftc.gov.
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\
---------------------------------------------------------------------------
\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).
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\3\ 73 FR 71968. The Proposing Release may be accessed through
the CFTC's Web site, at https://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.
---------------------------------------------------------------------------
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:
---------------------------------------------------------------------------
\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\
---------------------------------------------------------------------------
\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\
---------------------------------------------------------------------------
\8\ 73 FR at 71969. See Regulations 4.21(b) for CPOs and 4.31(b)
for CTAs.
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\10\ See 73 FR 71968 n. 3.
---------------------------------------------------------------------------
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
