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erally accepted accounting principles consistently applied. If the person is granted registration as a commodity pool operator, it must comply with this Part 4 with respect to each pool it operates. The provisions of this paragraph (c) shall apply even though such person was exempt from registration as

a commodity pool operator pursuant to the provisions of paragraph (a) of this section at the time it applied for registration.

(d) If a person exempt from registration under the Act as a commodity pool operator under paragraph (a)(1) or (a)(2) of this section registers as a commodity pool operator, that person must comply with this Part 4 as if such person were not exempt from registration as a commodity pool operator.

or that it intends to operate unless, on or before the date it engages in that activity, the person delivers or causes to be delivered to the prospective participant a written statement that must disclose this fact as follows: The commodity pool operator of this pool is not required to register, and has not registered, with the Commodity Futures Trading Commission. Therefore, unlike a registered commodity pool operator, this commodity pool operator is not required by the Commission to furnish a Disclosure Document, periodic Account Statements, and an Annual Report to participants in the pool.” The person must describe in the statement the exemption pursuant to which it is not registered as a commodity pool operator and must manually sign the statement.

(2) Each person who is exempt from registration as a commodity pool operator under paragraph (a)(1) or (a)(2) of this section and who is not registered as such pursuant to that exemption must:

(i)(A) Promptly furnish to each participant in each pool that it operates a copy of the monthly statement for the pool that such person received from a futures commission merchant pursuant to § 1.33, and

(B) 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; and

(ii)(A) Maintain all books and records prepared in connection with its activities as a commodity pool operator for a period of five years from the date of preparation, and

(B) Keep such books and records readily accessible during the first two years of the five-year period. All such books and records shall be open to inspection by any representative of the Commission or the United States Department of Justice.

(c) Each person who applies for registration as a commodity pool operator must include with its initial application the financial statements and other information required by $ 4.22(c) (1) through (5) for each pool it operates when such application is made. That information must be presented and computed in accordance with gen

(Approved by the Office of Management and Budget under control number 30380005) (Secs. 2(a)(1), 4c(a)-(d), 4d, 48, 4g, 4k, 4m, 4n, 8a, 15 and 17, Commodity Exchange Act (7 U.S.C. 2, 4, 6c(a)-(d), 68, 6g, 6k, 6m, 6n, 12a, 19 and 21; 5 U.S.C. 552 and 552b)) (46 FR 26013, May 8, 1981, as amended at 46 FR 63035, Dec. 30, 1981; 47 FR 57011, Dec. 22, 1982]

8 4.14 Exemption from registration as

commodity trading advisor. (a) A person is not required to register under the Act as a commodity trading advisor if:

(1) It is a dealer, processor, broker, or seller in cash market transactions of any commodity (or product thereof) and the person's commodity trading advice is solely incidental to the conduct of its cash market business;

(2) It is a non-profit, voluntary membership, trade association or farm organization and the person's commodity trading advice is solely incidental to the conduct of its business as such association or organization;

(3) It is registered under the Act as an associated person and the person's commodity trading advice is issued solely in connection with its employment as an associated person;

(4) It is registered under the Act as a commodity pool operator and the person's commodity trading advice is directed solely to, and for the sole use

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.

Subpart B-Commodity Pool

Operators

as

of, the pool or pools for which it is so registered;

(5) It is exempt from registration as a commodity pool operator and the person's commodity trading advice is directed solely to, and for the sole use of, the pool or pools for which it is so exempt; or

(6) It is registered under the Act as an introducing broker and the person's trading advice is solely in connection with its business as an introducing broker.

(7) It is registered under the Act as a leverage transaction merchant and the person's trading advice is solely in connection with its business as a leverage transaction merchant.

(b) For purposes of this section, “cash market transactions” shall not include transactions involving contracts for the purchase or sale of a commodity for future delivery transactions subject to Commission regulation under section 4c or 19 of the Act.

(c) If a person exempt from registration under the Act as a commodity trading advisor under paragraph (a) of this section registers as a commodity trading advisor that person must comply with this Part 4 as if such person were not exempt from registration as a commodity trading advisor. (Secs. 8a(5) and 19 of the Commodity Exchange Act, as amended, 7 U.S.C. 12a(5) and 23 (1982); 5 U.S.C. 552 and 552b) (46 FR 26013, May 8, 1981; 46 FR 26761, May 15, 1981; 48 FR 35298, Aug. 3, 1983; 49 FR 5526, Feb. 13, 1984)

or

§ 4.20 Prohibited activities.

(a)(1) Except as provided in paragraph (a)(2) of this section, a commodity pool operator must operate its pool

an entity cognizable as a legal entity separate from that of the pool operator.

(2) The Commission may exempt a corporation from the requirements of paragraph (a)(1) of this section if;

(i) The corporation represents in writing to the Commission that each participant in its pool will be issued stock or other evidences of ownership in the corporation for all funds, securities or other property that the participant contributes for the purchase of an ownership interest in the pool;

(ii) The corporation demonstrates to the satisfaction of the Commission that it has estabilshed procedures adequate to assure compliance with paragraphs (b) and (c) of this section; and

(iii) The Commission finds that the exemption is not contrary to the public interest and to the purposes of the provision from which the exemption is sought.

(b) All funds, securities or other property received by a commodity pool operator from an existing or prospective pool participant for the purchase of an interest or as an assessment (whether voluntary or involuntary) on an interest in a pool that it operates or that it intends to operate must be received in the pool's name.

(c) No commodity pool operator may commingle the property of any pool that it operates or that it intends to operate with the property of any other person. (Approved by the Office of Management and Budget under control number 30380005) (46 FR 26013, May 8, 1981, as amended at 46 FR 34311, July 1, 1981; 46 FR 63035, Dec. 30, 1981)

8 4.15 Continued applicability of antifraud

and reparation sections. The provisions of sections 40 and 14 of the Act shall apply to any person even though such person is exempt from registration under this Part 4, and it shall continue to be unlawful for any such person to violate section 40 of the Act. 8 4.16 Prohibited representations.

It shall be unlawful for any commodity pool operator, commodity trading advisor, principal thereof person who solicits therefor to represent or imply in any manner whatsoever that such commodity pool operator or commodity trading advisor has

or

53-047 0-85--5

8 4.21 Disclosure to prospective pool par- (ii) Each principal of the pool operaticipants.

tor; (a) No commodity pool operator reg

(iii) The pool's commodity trading istered or required to be registered advisor; and under the Act may, directly or indi- (iv) Each principal of the pool's comrectly, solicit, accept or receive funds, modity trading advisor. securities or other property from a

The pool operator must include in the prospective participant in a pool that

description of the business background it operates or that it intends to oper

of each such person the name and ate unless, on or before the date it en

main business of that person's employ. gages in that activity, the commodity

ers, business associations or business pool operator delivers or causes to be

ventures and the nature of the perdelivered to the prospective partici

son's duties performed for the employpant a Disclosure Document for the

ers or in connection with the associa. pool, in such form as the Commission

tions or ventures. may prescribe, containing the follow

(3)(i) Any actual or potential conflict ing information:

of interest regarding any aspect of the (1)(i) The name, address of the main business Office, main business tele

pool on the part of:

(A) The commodity pool operator; phone number and form of organization of the pool. If the address of the

(B) Any principal of the pool operamain business office is a post office

tor; box number, the pool operator must

(C) The pool's commodity trading state where the pool's books and

advisor; records will be kept;

(D) Any principal of the trading ad. (ii) The name, address of the main visor; business Office, main business tele- (E) Any futures commission merphone number and form of organiza- chant through which the pool's trades tion of the commodity pool operator. will be executed; If the address of the main business (F) Any principal of the futures office is a post office box number, the commission merchant; pool operator must state where its

(G) Any introducing broker through books and records will be kept;

which the pool will introduce its (iii) The name of each principal of trades to the futures commission merthe pool operator;

chant; or (iv) The name of the pool's commod

(H) Any principal of the introducing ity trading advisor;

broker. (v) The name of each principal of the trading advisor;

Included in the description of such (vi) The name of the person who will

conflict shall be any arrangement make the trading decisions for the

whereby the commodity pool operator, pool;

commodity trading advisor, or the (vii) If known, the name of the fu

principals thereof may benefit, directtures commission merchant through

ly or indirectly, from the maintenance which the pool will execute its trades

of the pool's account with the futures and, if applicable, the introducing

commission merchant or from the inbroker through which the pool will in

troduction of the pool's account to a troduce its trades to the futures com

futures commission merchant by an mission merchant; and

introducing broker. (viii) The types of commodity inter

(ii) If there is any such actual or poests the commodity pool operator in

tential conflict of interest, the pool optends that the pool will trade, with a erator must fully describe the nature description of any restrictions or limi- of the conflict. tations on such trading established by (iii) If there is no such actual or pothe commodity pool operator.

tential conflict of interest on the part (2) The business background, for the of any of the foregoing persons, the five years preceding the date of the pool operator must make a statement Document, of:

to that effect with respect to each (i) The commodity pool operator; such person.

(4) The actual performance record of the commodity pool operator and of each of its principals as specified below; Provided, however, That nothing in this $ 4.21(a)(4) shall be construed to prohibit a commodity pool operator from disclosing additional information on such performance record so long as the pool operator complies with each of the specified requirements of this $ 4.21(a)(4).

(i) The commodity pool operator must comply with this $ 4.21(a)(4) as follows: If commodity interests have been traded by the pool for which the commodity pool operator is soliciting participants, the pool operator must comply with paragraph (a)(4)(i)(A) of this section if that trading has been for 12 months or more preceding the date of the Disclosure Document, or with paragraph (a)(4)(i)(B) of this section if that trading has been for less than 12 months preceding the date of the Document. If commodity interests have not been traded by the pool for which the commodity pool operator is soliciting participants, the pool operator must comply with paragraph (a)(4)(i)(C) of this section.

(A) If the pool for which the commodity pool operator is soliciting participants has traded commodity interests for 12 months or more preceding the date of the Document, the pool operator must disclose the actual performance of the pool for its entire operating history; Provided, however,

That if the pool has traded commodity e interests for more than three years

preceding the date of the Document, the pool operator need only disclose the actual performance for such preceding three years.

(B) If the pool for which the commodity pool operator is soliciting participants has traded commodity interests for less than 12 months preceding the date of the Document, the pool operator must disclose the actual performance of the pool for its entire operating history and also must present the actual performance for the three years preceding the date of the Document of each other pool operated by it and by each of its principals; Provided, however, That if the pool operator and its principals previously have not operated any other pool, the pool operator

must disclose these facts with a prominent statement as follows:

THE COMMODITY FUTURES TRADING COMMISSION REQUIRES THE OPERATOR OF A POOL THAT HAS TRADED COMMODITY INTERESTS FOR LESS THAN 12 MONTHS TO DISCLOSE THE ACTUAL PERFORMANCE RECORD OF THE POOL FOR ITS ENTIRE OPERATING HISTORY AND THE ACTUAL PERFORMANCE RECORD OF EACH OTHER POOL OPERATED BY THE POOL OPERATOR AND ITS PRINCIPALS. YOU SHOULD NOTE THAT THE ACTUAL PERFORMANCE RECORD OF THIS POOL REPRESENTS ITS ENTIRE OPERATING HISTORY, A PERIOD OF ONLY

MONTHS. YOU ALSO SHOULD NOTE THAT THIS POOL OP. ERATOR AND ITS PRINCIPALS PREVIOUSLY HAVE NOT OPERATED ANY OTHER COMMODITY POOL." If the commodity pool operator is a sole proprietorship, reference to its principals may be deleted from the prescribed statement.

(C) If the pool for which the commodity pool operator is soliciting participants has not commenced trading commodity interests, the pool operator must disclose this fact with a prominent statement as follows:

"THE COMMODITY FUTURES TRADING COMMISSION REQUIRES A COMMODITY POOL OPERATOR TO DISCLOSE TO PROSPECTIVE POOL PARTICIPANTS THE ACTUAL PERFORMANCE RECORD OF THE POOL FOR WHICH THE OPERATOR IS SOLICITING PARTICIPANTS. YOU SHOULD NOTE THAT THIS POOL HAS NOT BEGUN TRADING AND DOES NOT HAVE ANY PERFORMANCE HISTORY.The pool operator also must present the actual performance for the three years preceding the date of the Document of each other pool operated by it and by each of its principals; Provided, however, That if the pool operator and its principals previously have not operated any other pool, the pool operator must disclose this fact with a prominent statement as follows:

WHERE THE POOL FOR WHICH THE POOL OPERATOR IS SOLICITING PARTICIPANTS HAS NOT BEGUN TRADING, THE COMMISSION REQUIRES THE POOL OPERATOR TO DISCLOSE TO PROSPECTIVE PARTICIPANTS THE ACTUAL PERFORMANCE RECORD OF EACH OTHER POOL OPERATED BY THE POOL OPERATOR AND ITS PRIN

CIPALS. YOU ALSO SHOULD NOTE pools operated by the commodity pool THAT THIS POOL OPERATOR AND ITS

operator and directed by the pool's PRINCIPALS PREVIOUSLY HAVE NOT OPERATED A COMMODITY POOL.”

commodity trading advisor and by any

principals of the trading advisor; and If the commodity pool operator is a

(C) Describe how each composite sole proprietorship, reference to its principals may be deleted from the

was developed and disclose material prescribed statement.

information from which the composite (ii) The presentation of actual per

was drawn. formance must be displayed in a table

(5) The actual performance record showing at least quarterly the follow- of the pool's commodity trading adviing information, current as of a date

sor and of each of its principals as not more than three months preceding specified below; Provided, however, the date of the Document:

That nothing in paragraph (a)(5) of (A) The beginning net asset value this section shall be construed to profor the period, which shall represent hibit a commodity pool operator from the previous period's ending net asset disclosing additional information on value;

such performance record so long (B) All additions, whether voluntary the pool operator complies with each or involuntary, during the period;

of the specified requirements of this (C) All withdrawals and redemp

paragraph (a)(5). tions, whether voluntary or involun

(i) The commodity pool operator tary, during the period;

must disclose the actual performance (D) The net performance for the

for the three years preceding the date period, which shall represent the

of the Document of all accounts other change in the net asset value net of

than the pool directed by the pool's additions, withdrawals and redemptions;

commodity trading advisor and by (E) The ending net asset value for

each of its principals; Provided, howthe period, which shall represent the

ever, That if the pool for which the beginning net asset value plus or

pool operator is soliciting participants minus additions, withdrawals and re

has not commenced trading commodidemptions, and net performance;

ty interests and the pool's trading ad(F) The rate of return for the visor and its principals previously have period, which shall be calculated by di

not directed an account, the pool operviding the net performance by the be- ator must disclose this fact with a ginning net asset value; and

prominent statement as follows: (G) The number of units outstand

"THE COMMISSION ALSO REQUIRES ing at the end of the period.

THE POOL OPERATOR TO DISCLOSE (iii) The commodity pool operator THE ACTUAL PERFORMANCE RECORD must describe the material differences OF ALL ACCOUNTS FOR WHICH THE among the pools for which past per- POOL'S TRADING ADVISOR AND ITS formance is disclosed pursuant to PRINCIPALS HAVE HAD THE AUTHORparagraph (a)(4)(i) of this section. ITY TO CAUSE TRANSACTIONS TO BE (iv) The commodity pool operator

EFFECTED WITHOUT CLIENTS' SPEmay present the actual performance

CIFIC AUTHORIZATION. YOU ALSO

SHOULD NOTE THAT THIS POOL'S of the pools operated by each such

TRADING ADVISOR AND ITS PRINCIperson for whom such performance is

PALS PREVIOUSLY HAVE NOT HAD disclosed pursuant to paragraph

SUCH AUTHORITY." (a)(4)(i) of this section on an individual basis or on a composite basis; Pro

If the pool's commodity trading advi. vided, however, That if the commodity

sor is a sole proprietorship, reference pool operator presents that perform

to its principals may be deleted from ance on a composite basis, it must:

the prescribed statement. (A) Separately disclose the actual (ii) The presentation of actual perperformance of the pool for which it is formance must be displayed in a table soliciting participants;

showing at least quarterly the infor(B) Present in a composite separate mation required under paragraphs and apart from any other composite (a)(4)(ii) (A) through (F) of this secthe actual performance of all other tion, current as of a date not more

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