[Code of Federal Regulations] [Title 17, Volume 1] [Revised as of April 1, 2006] From the U.S. Government Printing Office via GPO Access [CITE: 17CFR4.22] [Page 185-189] TITLE 17--COMMODITY AND SECURITIES EXCHANGES CHAPTER I--COMMODITY FUTURES TRADING COMMISSION PART 4_COMMODITY POOL OPERATORS AND COMMODITY TRADING ADVISORS--Table of Contents Subpart B_Commodity Pool Operators Sec. 4.22 Reporting to pool participants. (a) Except as provided in paragraph (a)(4) of this section, each commodity pool operator registered or required to be registered under the Act must periodically distribute to each participant in each pool that it operates, within 30 calendar days after the last date of the reporting period prescribed in paragraph (b) of this section, an Account Statement, which shall be presented in [[Page 186]] the form of a Statement of Income (Loss) and a Statement of Changes in Net Asset Value, for the prescribed period. These financial statements must be presented and computed in accordance with generally accepted accounting principles consistently applied. The Account Statement must be signed in accordance with paragraph (h) of this section. (1) The portion of the Account Statement which must be presented in the form of a Statement of Income (Loss) must separately itemize the following information: (i) The total amount of realized net gain or loss on commodity interest positions liquidated during the reporting period; (ii) The change in unrealized net gain or loss on commodity interest positions during the reporting period; (iii) The total amount of net gain or loss from all other transactions in which the pool engaged during the reporting period, including interest and dividends earned on funds not paid as premiums or used to margin the pool's commodity interest positions; (iv) The total amount of all management fees during the reporting period; (v) The total amount of all advisory fees during the reporting period; (vi) The total amount of all brokerage commissions during the reporting period; (vii) The total amount of other fees for commodity interest and other investment transactions during the reporting period; and (viii) The total amount of all other expenses incurred or accrued by the pool during the reporting period. (2) The portion of the Account Statement that must be presented in the form of a Statement of Changes in Net Asset Value must separately itemize the following information: (i) The net asset value of the pool as of the beginning of the reporting period; (ii) The total amount of additions to the pool, whether voluntary or involuntary, made during the reporting period; (iii) The total amount of withdrawals from and redemption of participation units in the pool, whether voluntary or involuntary, for the reporting period; (iv) The total net income or loss of the pool during the reporting period; (v) The net asset value of the pool as of the end of the reporting period; and (vi)(A) The net asset value per outstanding participation unit in the pool as of the end of the reporting period, or (B) The total value of the participant's interest or share in the pool as of the end of the reporting period. (3) The Account Statement must also disclose any material business dealings between the pool, the pool's operator, commodity trading advisor, futures commission merchant, or the principals thereof that previously have not been disclosed in the pool's Disclosure Document or any amendment thereto, other Account Statements or Annual Reports. (4) For the purpose of the Account Statement delivery requirement, including any Account Statement distributed pursuant to Sec. 4.7(b)(2) or 4.12(b)(2)(ii), the term ``participant'' does not include a commodity pool operated by a pool operator that is the same as, or that controls, is controlled by, or is under common control with, the pool operator of a pool in which the commodity pool has invested. (b) The Account Statement must be distributed at least monthly in the case of pools with net assets of more than $500,000 at the beginning of the pool's fiscal year, and otherwise at least quarterly; Provided, however, That an Account Statement for the last reporting period of the pool's fiscal year need not be distributed if the Annual Report required by paragraph (c) of this section is sent to pool participants within 45 calendar days after the end of the fiscal year. The requirement to distribute an Account Statement shall commence as of the date the pool is formed as specified in paragraph (g)(1) of this section. (c) Except as provided in paragraph (c)(6) of this section, each commodity pool operator registered or required to be registered under the Act must distribute an Annual Report to each participant in each pool that it operates, and must electronically submit a copy of the Report and key financial balances from the Report to the National Futures Association pursuant to the [[Page 187]] electronic filing procedures of the National Futures Association, within 90 calendar days after the end of the pool's fiscal year or the permanent cessation of trading, whichever is earlier, but in no event longer than 90 days after funds are returned to pool participants; Provided, however, That if during any calendar year the commodity pool operator did not operate a commodity pool, the pool operator must so notify the National Futures Association within 30 calendar days after the end of such calendar year. The Annual Report must be affirmed pursuant to paragraph (h) of this section and must contain the following: (1) The net asset value of the pool as of the end of each of the pool's two preceding fiscal years. (2)(i) The net asset value per outstanding participation unit in the pool as of the end of each of the pool's two preceding fiscal years, or (ii) The total value of the participant's interest or share in the pool as of the end of each of the pool's two preceding fiscal years. (3) A Statement of Financial Condition as of the close of the pool's fiscal year and preceding fiscal year. (4) Statements of Income (Loss), Changes in Financial Position, and Changes in Ownership Equity, for the period between (i) the later of: (A) the date of the most recent Statement of Financial Condition delivered to the Commission pursuant to this paragraph (c), (B) January 1, 1979, or (C) the date of the formation of the pool, and (ii) the close of the pool's fiscal year, together with Statements of Income (Loss), Changes in Financial Position, and Changes in Ownership Equity for the corresponding period of the previous fiscal year. (5) Appropriate footnote disclosure and such further material information as may be necessary to make the required statements not misleading. (6) For the purpose of the Annual Report distribution requirement, including any annual report distributed pursuant to Sec. 4.7(b)(3) or 4.12(b)(2)(iii), the term ``participant'' does not include a commodity pool operated by a pool operator that is the same as, or that controls, is controlled by, or is under common control with, the pool operator of a pool in which the commodity pool has invested; Provided, That the Annual Report of such investing pool contain financial statements that include such information as the Commission may specify concerning the operations of the pool in which the commodity pool has invested. (d) The financial statements in the Annual Report must be presented and computed in accordance with generally accepted accounting principles consistently applied and must be certified by an independent public accountant. The requirements of Sec. 1.16(g) of this chapter shall apply with respect to the engagement of such independent public accountants, except that any related notifications to be made may be made solely to the National Futures Association, and the certification must be in accordance with Sec. 1.16 of this chapter, except that the following requirements of that section shall not apply: (1) The audit objectives of Sec. 1.16(d)(1) concerning the periodic computation of minimum capital and property in segregation; (2) All other references in Sec. 1.16 to the segregation requirements; and (3) Sections 1.16(c)(5), (d)(2), (e)(2), and (f). (e) The Statement of Income (Loss) required by this section must itemize brokerage commissions, management fees, advisory fees, incentive fees, interest income and expense, total realized net gain or loss from commodity interest trading, and change in unrealized net gain or loss on commodity interest positions during the pool's fiscal year. Gains and losses on commodity interests need not be itemized by commodity or by specific delivery or expiration date. (f)(1)(i) In the event the commodity pool operator finds that it cannot distribute the Annual Report for a pool that it operates within the time specified in paragraph (c) of this section without substantial undue hardship, it may file with the National Futures Association an application for extension of time to a specified date not more than 90 calendar days after the date as of which the Annual Report was to have been distributed. The application must be made by the pool operator and must: [[Page 188]] (A) State the name of the pool for which the application is being made; (B) State the reasons for the requested extension; (C) Indicate that the inability to make a timely filing is due to circumstances beyond the control of the pool operator, if such is the case, and describe briefly the nature of such circumstances; (D) Contain an undertaking to file the Annual Report on or before the date specified in the application; and (E) Be filed with the National Futures Association prior to the date on which the Annual Report is due. (ii) The application must be accompanied by a letter from the independent public accountant answering the following questions: (A) What specifically are the reasons for the extension request? (B) Do you have any indication from the part of your audit completed to date that would lead you to believe that the commodity pool operator was or is not meeting the recordkeeping requirements of this part 4 or was or is not complying with the Sec. 4.20(c) prohibition on commingling of property of any pool with the property of any other person? (iii) Within ten calendar days after receipt of an application for an extension of time, the National Futures Association shall: (A) Notify the commodity pool operator of the grant or denial of the requested extension, or (B) Indicate to the pool operator that additional time is required to analyze the request, in which case the amount of time needed will be specified. (2) In the event a commodity pool operator finds that it cannot obtain information necessary to prepare certified financial statements for a pool that it operates within the time specified in either paragraph (c) of this section or Sec. 4.7(b)(3)(i), as a result of the pool investing in another collective investment vehicle, it may claim an extension of time under the following conditions: (i) The commodity pool operator must, within 90 calendar days of the end of the pool's fiscal year, file a notice with National Futures Association, except as provided in paragraph (f)(2)(v) of this section. (ii) The notice must contain the name, main business address, main telephone number and the National Futures Association registration identification number of the commodity pool operator, and name and the identification number of the commodity pool. (iii) The notice must state the date by which the Annual Report will be distributed and filed (the ``Extended Date''), which must be no more than 150 calendar days after the end of the pool's fiscal year. The Annual Report must be distributed and filed by the Extended Date. (iv) The notice must include representations by the commodity pool operator that: (A) The pool for which the Annual Report is being prepared has investments in one or more collective investment vehicles (the ``Investments''); (B) The commodity pool operator has been informed by the certified public accountant selected to audit the commodity pool's financial statements that specified information establishing the value of the Investments is necessary in order for the accountant to render an opinion on the commodity pool's financial statements. The notice must include the name of the accountant; and (C) The information specified by the accountant cannot be obtained in sufficient time for the Annual Report to be prepared, audited, and distributed before the Extended Date. (v) For each fiscal year following the filing of the notice described in paragraph (f)(2)(i) of this section, the commodity pool operator may claim the extension of time by filing a statement containing the representations specified in paragraph (f)(2)(iv) of this section, at the same time as the pool's Annual Report. (vi) Any notice or statement filed pursuant to paragraph (f)(2) of this section must be signed by the commodity pool operator in accordance with paragraph (h) of this section. (g)(1) A commodity pool operator may initially elect any fiscal year for a pool, but the first fiscal year may not end more than one year after the pool's formation. For purposes of this section, [[Page 189]] a pool shall be deemed to be formed as of the date the pool operator first receives funds, securities or other property for the purchase of an interest in the pool. (2) If a commodity pool operator elects a fiscal year other than the calendar year, it must give written notice of the election to all participants and must file the notice with the National Futures Association within 90 calendar days after the date of the pool's formation. If this notice is not given, the pool operator will be deemed to have elected the calendar year as the pool's fiscal year. (3) The commodity pool operator must continue to use the elected fiscal year for the pool unless it provides written notice of any proposed change to all participants and files such notice with the National Futures Association at least 90 days before the change and the National Futures Association does not disapprove the change within 30 days after the filing of the notice. (h)(1) Each Account Statement and Annual Report, including an Account Statement or Annual Report provided pursuant to Sec. 4.7(b) or 4.12(b), must contain an oath or affirmation that, to the best of the knowledge and belief of the individual making the oath or affirmation, the information contained in the document is accurate and complete; Provided, however, That it shall be unlawful for the individual to make such oath or affirmation if the individual knows or should know that any of the information in the document is not accurate and complete. (2) Each oath or affirmation must be made by a representative duly authorized to bind the pool operator, and (i) for the copy of a commodity pool's Annual Report submitted to the National Futures Association, such representative shall satisfy the required oath or affirmation through compliance with the National Futures Association's electronic filing procedures, and (ii) for a commodity pool Account Statement or Annual Report distributed to participants, a facsimile of the manually signed oath or affirmation of such representative may be used so long as the manually signed original is retained in accordance with Sec. 4.23. (3) For each manually signed oath or affirmation, there must be typed beneath the signed oath or affirmation: (i) The name of the individual signing the document; (ii) The capacity in which he is signing; (iii) The name of the commodity pool operator for whom he is signing; and (iv) The name of the commodity pool for which the document is being distributed. (i) The Account Statement or Annual Report may be distributed to a pool participant by means of electronic media if the participant so consents; Provided, That prior to the transmission of any Account Statement or Annual Report by means of electronic media, a commodity pool operator must disclose to the participant that it intends to distribute electronically the Account Statement or Annual Report or both documents, as the case may be, absent objection from the participant, which objection, if any, the participant must make no later than 10 business days following its receipt of the disclosure. (Approved by the Office of Management and Budget under control number 3038-0005) (Secs. 2(a)(1), 4c(a)-(d), 4d, 4f, 4g, 4k, 4m, 4n, 8a, 15 and 17, Commodity Exchange Act (7 U.S.C. 2, 4, 6c(a)-(d), 6f, 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; 52 FR 41986, Nov. 2, 1987; 65 FR 81334, Dec. 26, 2000; 67 FR 77411, Dec. 18, 2002; 68 FR 47234, Aug. 8, 2003; 68 FR 52837, Sept. 8, 2003; 71 FR 8942, Feb. 22, 2006]