Alert May 24, 2011

CFTC Codifies Exemptive Relief for Commodity ETFs

The CFTC adopted amendments to its regulations, essentially as proposed, that (a) codify prior exemptive relief from certain disclosure, reporting and recordkeeping requirements for commodity pool operators (“CPOs”) whose commodity pool units of participation are publicly offered and listed for trading on a national securities exchange (“Commodity ETFs”) and (b) provide an exemption from registration as a CPO for certain independent directors or trustees of Commodity ETFs.  Commodity ETFs seek to track the performance of a specific commodity index or alternatively, actively trade commodity interests without regard to an index or benchmark.  The CFTC has previously provided exemptive relief on a case-by-case basis to Commodity ETFs subject to compliance with conditions like those reflected in the Rule 4.12 amendments the CFTC has adopted.  Actively managed Commodity ETFs must have independent directors or trustees in order to meet exchange listing standards that implement audit committee independence requirements mandated in SEC Rule 10A-3 under the Securities Exchange Act of 1934 adopted pursuant to the Sarbanes-Oxley Act of 2002.  The amendments to Rule 4.13 adopted by the CFTC provide an exemption from CPO registration, subject to certain conditions, for an independent director or trustee of a Commodity ETF who serves solely so that the Commodity ETF can meet the audit committee requirements of Rule 10A-3. 

The amendments become effective on June 17, 2011.