The Division of Clearing and Intermediary Oversight took a CPO registration no-action position with respect to the independent trustees of a commodity pool where the independent trustees had no authority to perform CP...

Summary: The Division of Clearing and Intermediary Oversight took a CPO registration no-action position with respect to the independent trustees of a commodity pool where the independent trustees had no authority to perform CPO functions, the independent trustees were appointed solely to comply with audit committee requirements under the Sarbanes Oxley Act and exchange listing requirements, and a separate registered CPO was authorized to perform all commodity pool operator functions. The Division further granted exemptive relief from certain of the Part 4 regulations to the registered CPO of a commodity pool, whose shares the CPO intended to publicly offer and to list for trading on a national securities exchange. As is discussed in the letter, this relief was in the nature of substituted compliance with those regulations.

U.S. COMMODITY FUTURES TRADING COMMISSION

Three Lafayette Centre

1155 21st Street, NW, Washington, DC 20581

Telephone: (202) 418-5430

Facsimile: (202) 418-5547

aradhakrishnan@cftc.gov

Division of Clearing and

Intermediary Oversight

Ananda Radhakrishnan

Director

CFTC Letter No. 10-06

No Action; Exemption

March 29, 2010

Division of Clearing and Intermediary Oversight

Re:

Section 4m(1); Regulations 4.21, 4.22 and 4.23

Dear :

This is in response to your letter dated October 20, 2006 to the Division of Clearing and

Intermediary Oversight (the “Division”) of the Commodity Futures Trading Commission (the

“Commission” or “CFTC”), as supplemented by letters and e-mail messages to Division staff

dated from October 31, 2006 to December 12, 2009, (the “correspondence”). By the

correspondence, you request, on behalf of certain trustees (the “Individual Trustees”) of the

Fund,1 relief from the requirement under Section 4m(1) of the Commodity Exchange Act (the

“Act”)2 to register as a commodity pool operator (“CPO”), such that “A”, a registered CPO, may

serve as the Fund’s CPO in lieu thereof

d from October 31, 2006 to December 12, 2009, (the “correspondence”). By the

correspondence, you request, on behalf of certain trustees (the “Individual Trustees”) of the

Fund,1 relief from the requirement under Section 4m(1) of the Commodity Exchange Act (the

“Act”)2 to register as a commodity pool operator (“CPO”), such that “A”, a registered CPO, may

serve as the Fund’s CPO in lieu thereof. Assuming that “A” may serve as the Fund’s CPO, you

further request on behalf of “A” exemption from certain provisions of Regulations 4.21, 4.22 and

4.23,3 which concern, respectively, the disclosure, reporting and recordkeeping requirements

applicable to registered CPOs.

Background

Based upon the representations you made in the correspondence, we understand the

relevant facts to be as follows. The Fund’s shares will be offered and sold to the public pursuant

to an effective registration statement (the “Registration Statement”) filed with the Securities and

Exchange Commission (“SEC”). The shares will also be listed for trading on NYSE Amex LLC

(“NYSE Amex”). Generally speaking, and for the purposes of responding to your request, the

1

You have been authorized by the Individual Trustees to request this relief on their behalf.

2

7 U.S.C. §6m(1) (2006). The Act can be accessed through the Commission’s website,

www.cftc.gov.

3

Commission regulations referred to in this letter are found at 17 C.F.R. Ch. I (2009).

Like the Act, they can be accessed through the Commission’s website.

1

You have been authorized by the Individual Trustees to request this relief on their behalf.

2

7 U.S.C. §6m(1) (2006). The Act can be accessed through the Commission’s website,

www.cftc.gov.

3

Commission regulations referred to in this letter are found at 17 C.F.R. Ch. I (2009).

Like the Act, they can be accessed through the Commission’s website.

Page 2

Fund’s operation will be the same as that of the publicly-offered, exchange-traded commodity

pool that was the subject of CFTC Staff Letter 09-39.4

The Fund is organized as a Delaware statutory trust, with “B” serving as the Fund’s

resident trustee.5 The Fund’s organizational documents grant all authority and responsibility for

managing and operating the Fund to “A”. Thus, “B’s” duties and responsibilities will be

restricted to fulfilling the in-state residency requirement under Delaware law, accepting legal

process on behalf of the Fund and making certain filings under the Delaware Statutory Trust Act.

It will have no duty or responsibility to conduct any of the business affairs or operations of the

Fund – e.g., it will not solicit Fund participants, nor will it engage Fund service providers.6 You

thus claim, and the Division agrees, that “B” will not be acting as the Fund’s CPO or performing

any functions that could require it to be registered as such.

In addition, the Fund will have a board of trustees that will be comprised of natural

persons who are independent within the meaning of the Securities Exchange Act of 1934 (the

“Exchange Act”) and the NYSE Amex listing requirements (the Individual Trustees).7 This

board of trustees is required because the Fund will actively trade commodity interests

require it to be registered as such.

In addition, the Fund will have a board of trustees that will be comprised of natural

persons who are independent within the meaning of the Securities Exchange Act of 1934 (the

“Exchange Act”) and the NYSE Amex listing requirements (the Individual Trustees).7 This

board of trustees is required because the Fund will actively trade commodity interests.

Specifically, because it will actively trade commodity interests, pursuant to Rule 10A-3 under

the Exchange Act (the “SEC Rule”) and the listing requirements of NYSE Amex, the Fund must

have an audit committee composed of at least three independent trustees, such that those

independent trustees comprise a majority of the Fund’s board of trustees.8

In accordance with the SEC Rule, the Individual Trustees will be responsible for matters

relating to the Fund’s public accounting firm – i.e., for its engagement, compensation, retention

and oversight. In accordance with NYSE Amex listing requirements, the Individual Trustees

also will nominate for election additional Individual Trustees. Other than these responsibilities,

the Individual Trustees will have no authority or responsibility to direct or manage the affairs of

the Fund. You note that under the Fund’s Amended and Restated Trust Agreement (“Trust

Agreement”), the Individual Trustees are prohibited from: (1) engaging in any solicitation of

4

[Current Transfer Binder] Comm. Fut. L. Rep. (CCH) ¶31,473 (Jul. 30, 2009), also

available on the Commission’s website.

5

Under Section 3807 of the Delaware Statutory Trust Act, the Fund must have at least one

trustee that is a resident of (or that has a principal place of business in) Delaware.

6

See, e.g., 49 Fed. Reg. 4778, 4780 (Feb. 8, 1984), where the Commission stated that such

solicitation and engagement are among the sorts of activities that bring a person within the

statutory definition of the term “commodity pool operator” in Section 1a(5) of the Act

Act, the Fund must have at least one

trustee that is a resident of (or that has a principal place of business in) Delaware.

6

See, e.g., 49 Fed. Reg. 4778, 4780 (Feb. 8, 1984), where the Commission stated that such

solicitation and engagement are among the sorts of activities that bring a person within the

statutory definition of the term “commodity pool operator” in Section 1a(5) of the Act.

7

Each Individual Trustee also sits on the board of numerous other investment companies

managed by “C” (an investment adviser registered with the SEC and, like “A”, a wholly-owned

subsidiary of the privately-held holding company “D”).

8

17 C.F.R. §240.10A-3 (2009).

Page 3

prospective participants in the Fund; (2) providing any commodity interest trading advice to the

Fund; (3) engaging in any commodity interest related activities with respect to the Fund or any

other person; and (4) supervising any such activities.9 Further, none of the Individual Trustees

is, and no future Individual Trustee will be, subject to a statutory disqualification under Section

8a(2) or 8a(3) of the Act.10

It is intended that “A”, a registered CPO, will be the operator of the Fund. As is

explained above, pursuant to the organizational documents of the Fund, the operation and

management of the Fund resides with “A”.

Analysis

Section 4m(1): Commission staff previously has taken the position that where a

commodity pool is organized as a trust, each trustee of the pool is a CPO and, absent relief,

would be required to register as a CPO under Section 4m(1) of the Act.11 We note, and in

support of your request that “A” and not the Individual Trustees serve as the CPO of the Fund,

you acknowledge, that when CFTC staff previously has provided relief from the CPO

registration requirement in Section 4m(1) as it applies to directors of commodity pools, staff has

typically based the relief upon the existence of several factors: (1) delegation by the boar

he Act.11 We note, and in

support of your request that “A” and not the Individual Trustees serve as the CPO of the Fund,

you acknowledge, that when CFTC staff previously has provided relief from the CPO

registration requirement in Section 4m(1) as it applies to directors of commodity pools, staff has

typically based the relief upon the existence of several factors: (1) delegation by the board of

directors to a registered CPO of responsibility for the operation of the pool, and acceptance of

that responsibility by the CPO; (2) a representation that the registered CPO would continue to

serve as the pool’s CPO; (3) identification of the pool’s directors; and (4) cross

acknowledgments of joint and several liability among the directors and the registered CPO for

any violation of the Act and Commission regulations by any of them in connection with

9

The Trust Agreement contains a broad delegation of all management authority to “A”,

including the authority to act as the Fund’s CPO. The Individual Trustees retain only such

authority as is necessary to comply with the SEC Rule and NYSE Amex listing requirements.

10

7 U.S.C. §12a(2) or §12a(3)(2000). The commodity pool that was the subject of Staff

Letter 09-39 met the audit committee requirement of the SEC Rule and NYSE Amex listing

requirements by means of a separate LLC, with a board composed of natural persons who

performed the required duties. Here, there is no separate entity and the natural persons (the

Individual Trustees) occupy positions that ordinarily would require CPO registration. Moreover,

but for the fact that the Fund will not be “passively owning or holding” commodity interests, the

SEC Rule would provide an exemption for a trust from the requirement to have an audit

committee, and the requirement to have a board of directors. Thus, this issue never arose in prior

Staff Letters involving exchange-listed commodity pools which intended to passively hold

commodity interests in order to track designated indices

ll not be “passively owning or holding” commodity interests, the

SEC Rule would provide an exemption for a trust from the requirement to have an audit

committee, and the requirement to have a board of directors. Thus, this issue never arose in prior

Staff Letters involving exchange-listed commodity pools which intended to passively hold

commodity interests in order to track designated indices.

11

See, CFTC Staff Letter 86-8 [1986-1987 Transfer Binder] Comm. Fut. L. Rep. (CCH)

¶23,014 (Apr. 4, 1986) (two trustees of a master trust, who would otherwise be required to

register as CPOs, granted registration relief because underlying trusts would have each been

excluded from the definition of CPO under Regulation 4.5).

Page 4

operating the pool.12 However, in none of those other letters were the shares of the commodity

pools at issue traded on a national securities exchange. Thus, none of the commodity pools at

issue in those other letters would be subject to the SEC Rule.

In this regard, you explain that the Individual Trustees can meet all of the factors

enumerated above except for the last factor, and you offer the following explanation why this

condition should not apply to any Individual Trustee. Section 803A of the NYSE Amex

Company Guide (the “Guide”) requires an affirmative determination by a listed company’s board

of directors that an independent director (here, a trustee) “does not have a relationship that would

interfere with the exercise of independent judgment.” Thus, you claim that any agreement by an

Individual Trustee to accept joint and several liability for any violation of the Act and

Commission regulations by “A” would create a conflict of interest between the Individual

Trustee’s fiduciary duties to the Fund’s shareholders and his own personal interests, which

conflict could interfere with the exercise of the Individual Trustee’s independent judgment

ou claim that any agreement by an

Individual Trustee to accept joint and several liability for any violation of the Act and

Commission regulations by “A” would create a conflict of interest between the Individual

Trustee’s fiduciary duties to the Fund’s shareholders and his own personal interests, which

conflict could interfere with the exercise of the Individual Trustee’s independent judgment. To

further explain, you offer the following:

For example, the [Individual] Trustees, as members of the Fund’s audit

committee, are charged with the supervision and oversight of the Fund’s

auditors. If the [Individual] Trustees have information regarding a possible

violation by the CPO that impacts the Fund’s financial statements, they may be

less willing to communicate that information to the Fund’s auditors if they

would also be liable for that violation. If the [Individual] Trustees were

required to agree to joint and several liability, [“A”] has informed us that it

believes the Fund may not be able to comply with Section 803A of the Guide,

which would preclude the Fund’s shares from listing on NYSE Amex.

Thus, you ask that in considering the request to relieve the Individual Trustees from the

requirement to register as CPOs, the Division deem sufficient an acknowledgment solely from

“A” that it will be jointly and severally liable for any violation of the Act and Commission

regulations applicable to CPOs by any of the Individual Trustees.13

Regulation 4.21: The Shares will be offered and sold to the public in a firm commitment

underwriting pursuant to the Registration Statement. During the period after the filing of the

Registration Statement and before the SEC declares the Registration Statement effective, the

12

See, e.g., CFTC Staff Letter 97-73 [1996-1998 Transfer Binder] Comm. Fut. L. Rep.

(CCH) ¶27153 (Aug. 20, 1997).

13

You enclosed this acknowledgment with your letter dated December 8, 2009. Compare,

e.g., Staff Letter 09-03 [2007-2009 Transfer Binder] Comm. Fut

eriod after the filing of the

Registration Statement and before the SEC declares the Registration Statement effective, the

12

See, e.g., CFTC Staff Letter 97-73 [1996-1998 Transfer Binder] Comm. Fut. L. Rep.

(CCH) ¶27153 (Aug. 20, 1997).

13

You enclosed this acknowledgment with your letter dated December 8, 2009. Compare,

e.g., Staff Letter 09-03 [2007-2009 Transfer Binder] Comm. Fut. L. Rep. (CCH) ¶31,378 (May

21, 2009) and Staff Letter 09-02 [2007-2009 Transfer Binder] Comm. Fut. L. Rep. (CCH)

¶31,377 (May 21, 2009), in which (unlike here) the registered CPO and the entity or entities

relieved of registering as a CPO were under common ownership and control, and all executed

acknowledgments of joint and several liability.

Page 5

Fund’s underwriters and distributors (all registered as broker-dealers (“B/Ds”) under the

Exchange Act) will have solicited interest and received non-binding commitments to purchase

Shares from prospective investors with the use of a preliminary prospectus that has been

reviewed by the SEC’s Division of Corporation Finance and by the National Futures Association

(“NFA”), and that complies with the requirements for Disclosure Documents in Part 4 of the

Commission’s regulations. After the initial public offering, the purchase and sale of Shares will

be effected in the secondary market through registered B/Ds. With respect to secondary market

purchases on NYSE Amex, you conclude that “A” is not subject to the Disclosure Document

delivery requirement under Regulation 4.21, a conclusion with which the Division agrees.14

The preliminary prospectus/Disclosure Document will be posted on the “D” website

(www. “D”.com) and kept current, from and after such time as the underwriters and distributors

begin soliciting interest from prospective investors – which will commence before the

Registration Statement becomes effective

elivery requirement under Regulation 4.21, a conclusion with which the Division agrees.14

The preliminary prospectus/Disclosure Document will be posted on the “D” website

(www. “D”.com) and kept current, from and after such time as the underwriters and distributors

begin soliciting interest from prospective investors – which will commence before the

Registration Statement becomes effective. The underwriters and distributors will contractually

commit with “A” to keep records of the names and addresses of the persons to whom they

deliver copies of the Disclosure Document/preliminary prospectus, and to make those records

available to any representative of the Commission, NFA or the U.S. Department of Justice.

Notwithstanding this commitment, “A” will remain responsible under Regulation 4.23(a)(3) for

compliance with this commitment by the underwriters and distributors.

Regulations 4.22(a) and (b): An issuer of exchange-traded shares held in book-entry

form through DTC (such as the Fund) typically does not readily know the identities of its

ultimate beneficial owners. You request exemption from the Account Statement delivery

requirement on the grounds that it would be unduly burdensome and costly to require the Fund’s

CPO to ascertain on a monthly basis the identities of purchasers of Shares in the secondary

market in order to comply with the requirement under Regulations 4.22(a) and (b) to deliver

monthly Account Statements to Fund participants.15 In this regard, you explain that, because of

the secondary market for the Fund’s shares on NYSE Amex, ownership of the Fund’s shares is

expected to change frequently on a daily basis.

In support of your request, you note that the same information that would otherwise be

provided in the Fund’s monthly Account Statements, including the Fund’s net asset value and the

certification required by Rule 4.22(h), will be readily available via the “D” website, of which

availability the Disclosure Document will advise participants

s is

expected to change frequently on a daily basis.

In support of your request, you note that the same information that would otherwise be

provided in the Fund’s monthly Account Statements, including the Fund’s net asset value and the

certification required by Rule 4.22(h), will be readily available via the “D” website, of which

availability the Disclosure Document will advise participants.

Regulation 4.23: You request exemption from the location requirement of Regulation

4.23(a) such that books and records of the Fund and the Master Fund, may be kept by its service

14

See, 44 Fed. Reg. 25658, 25659 (May 2, 1979).

15

You make this request not only with respect to purchasers in the initial public offering,

but also with respect to investors purchasing Shares in the secondary market. Once an investor

has purchased Shares, whether in the initial public offering or on NYSE Amex, the Shares can be

freely sold on the secondary market, and the same difficulties will be encountered in tracking the

current owner.

Page 6

providers, i.e., “E”, the Fund’s custodian, accounting agent and transfer agent, and “F”, to which

“E” has subcontracted certain transfer agency services, in each case at their respective addresses

as specified in Exhibit B to your October 20, 2006 letter.16

You further ask for confirmation that neither “E” nor “F” will be deemed to be acting as a

CPO solely by reason of keeping Fund records in the manner described in your correspondence,

which the Division hereby so confirms

to which

“E” has subcontracted certain transfer agency services, in each case at their respective addresses

as specified in Exhibit B to your October 20, 2006 letter.16

You further ask for confirmation that neither “E” nor “F” will be deemed to be acting as a

CPO solely by reason of keeping Fund records in the manner described in your correspondence,

which the Division hereby so confirms. In this regard, the Division notes that neither firm will

be acting in the manner contemplated by the statutory definition of a CPO (as described above in

connection with “B”).17

Relief

Based upon the representations made in the correspondence, and consistent with prior

staff practice in this area, the Division believes that granting your request would not be contrary

to the public interest or to the purposes of those sections of the Act and Commission regulations

from which you have sought relief. Accordingly, the Division will not recommend that the

Commission take any enforcement action against any Individual Trustee for failure to comply

with Section 4m(1) of the Act, based solely upon an Individual Trustee’s failure to register as a

CPO in connection with serving as a trustee of the Fund, provided that “A” serves as the CPO of

the Fund. This position is, however, subject to the following conditions: (1) “A” remains

registered as a CPO; and (2) no present or future Individual Trustee is subject to any statutory

disqualification under Section 8(a)(2) or (a)(3) of the Act

on an Individual Trustee’s failure to register as a

CPO in connection with serving as a trustee of the Fund, provided that “A” serves as the CPO of

the Fund. This position is, however, subject to the following conditions: (1) “A” remains

registered as a CPO; and (2) no present or future Individual Trustee is subject to any statutory

disqualification under Section 8(a)(2) or (a)(3) of the Act.

Further, pursuant to the authority delegated in Regulation 140.93(a)(1), the Division

exempts “A” in connection with the operation of the Fund from: (1) the requirement of

Regulation 4.21(b) to obtain a signed acknowledgment of receipt of a Disclosure Document

before accepting funds, securities or property from a prospective pool participant with respect to

sales of Shares in the Fund’s initial public offering, provided that the information required to be

contained in the Disclosure Document is maintained and kept current on the “D” website;18 (2)

16

Each of “E” and “F” has provided the Division with signed acknowledgments that the

books and records of the Fund may be inspected and copied by any representative of the

Commission, NFA or the United States Department of Justice and may be inspected and copied

during normal business hours by Fund participants. Exhibit A to your October 20, 2006 letter is

a schedule specifying the classes of books and records, by subparagraph of Regulation 4.23, that

each of “E” and “F” will be keeping.

17

See, e.g., 49 Fed. Reg. 4778, 4780 and Staff Letter 09-39 (Division granted a CPO an

exemption to keep pool books and records with the pool’s administrator and its distributor,

neither of which was thereby deemed to be acting as a CPO of the pool)

ter is

a schedule specifying the classes of books and records, by subparagraph of Regulation 4.23, that

each of “E” and “F” will be keeping.

17

See, e.g., 49 Fed. Reg. 4778, 4780 and Staff Letter 09-39 (Division granted a CPO an

exemption to keep pool books and records with the pool’s administrator and its distributor,

neither of which was thereby deemed to be acting as a CPO of the pool).

18

You also ask the Division to concur that “A” can comply with the requirement under

Regulation 4.26 that a CPO correct any material inaccuracy in its Disclosure Document and

distribute the correction to all existing pool participants by posting a current Disclosure

Document on the “D” website in lieu of delivering a hard copy. The Division so concurs in light

Page 7

the requirement of Regulation 4.22 to deliver monthly Account Statements to purchasers of

Shares, provided that the information that would otherwise be contained in such reports is

maintained on the “D” website; and (3) the requirement of Regulation 4.23 to keep required

books and records at “A’s” main business office to the extent that such books and records are

maintained at the offices of “E” or “F”. The exemption from the signed acknowledgment

requirement of Regulation 4.21(b) is subject to the conditions that: (1) “A” notifies the Director

of the Division and NFA in writing of the name of each underwriter and distributor within ten

business days following the date on which such underwriter or distributor signs an underwriting

or distribution agreement, as the case may be, with “A”; and (2) the underwriters and distributors

maintain records of names and addresses of persons to whom Disclosure Document/preliminary

prospectuses are delivered and make those records available to Commission, NFA and

Department of Justice representatives in accordance with Regulation 1.3

ch underwriter or distributor signs an underwriting

or distribution agreement, as the case may be, with “A”; and (2) the underwriters and distributors

maintain records of names and addresses of persons to whom Disclosure Document/preliminary

prospectuses are delivered and make those records available to Commission, NFA and

Department of Justice representatives in accordance with Regulation 1.31. Consistent with prior

practice,19 the exemption from the books and records location requirement of Regulation 4.23 is

subject to the conditions that: (1) “A” notify the Director of the Division if the location of any of

the books and records required to be kept by Regulation 4.23 changes from that as represented to

the Division; (2) “A” remain responsible for ensuring that all books and records required by

Regulation 4.23 are kept in accordance with Regulation 1.31 and for assuring the availability of

such books and records to the Commission, NFA, and any other agency authorized to review

such books and records in accordance with the Act and Commission regulations; (3) within

forty-eight hours after a request by a representative of the foregoing, “A” obtain the original

books and records from “E’s” offices in Boston, Massachusetts, or from “F’s” offices in Canton,

Massachusetts, as the case may be, and will provide them for inspection at “A’s” main business

office; (4) “A” disclose in the Fund’s Disclosure Document the location of its books and records

that are required under Regulation 4.23; and (5) “A” remain fully responsible for compliance

with Regulation 4.23.

This letter does not excuse “A” or any Individual Trustee from compliance with any other

applicable requirements contained in the Act or in the Commission’s regulations issued

thereunder

e; (4) “A” disclose in the Fund’s Disclosure Document the location of its books and records

that are required under Regulation 4.23; and (5) “A” remain fully responsible for compliance

with Regulation 4.23.

This letter does not excuse “A” or any Individual Trustee from compliance with any other

applicable requirements contained in the Act or in the Commission’s regulations issued

thereunder. For example, “A” remains subject to Regulation 1.31, and the Commission

maintains its right under that regulation to inspect the required books and records of “A” at “E’s”

offices in Boston Massachusetts and at “F’s” offices in Canton, Massachusetts. Additionally,

“A” and the Individual Trustees remain subject to all antifraud provisions of the Act20 and the

Commission’s regulations, to the reporting requirements for traders set forth in Parts 15, 18 and

of: (1) the obligation under the Federal securities laws to correct and recirculate the preliminary

prospectus in the event of a material inaccuracy prior to effectiveness; (2) the fact that in most

instances, Fund shareholders will hold their shares in book-entry form; and (3) the fact, as noted

above (see footnote 14), that a CPO’s obligation to deliver a Disclosure Document does not

extend to a person who purchase shares in the secondary market from someone other than the

CPO.

19

See, e.g., Staff Letter 09-39.

20

See, e.g., Sections 4b and 4o, 7 U.S.C. §§6b and 6o (2000).

ost

instances, Fund shareholders will hold their shares in book-entry form; and (3) the fact, as noted

above (see footnote 14), that a CPO’s obligation to deliver a Disclosure Document does not

extend to a person who purchase shares in the secondary market from someone other than the

CPO.

19

See, e.g., Staff Letter 09-39.

20

See, e.g., Sections 4b and 4o, 7 U.S.C. §§6b and 6o (2000).

Page 8

19 of the Commission’s regulations, and to all other applicable provisions of the Act and the

regulations.

This letter is based upon the representations made to us, is subject to compliance with the

conditions set forth above, and is applicable solely in connection with the operation of the Fund.

Any different, changed or omitted material facts or circumstances might render this letter void.

In this connection, you must notify us immediately in the event that the operations of “A”, any

Individual Trustee or the Fund change in any material way from those represented to us. Further,

the no-action position taken herein represent the views of this Division only and does not

necessarily represent the views of the Commission or of any other office or division of the

Commission.

If you have any questions concerning this correspondence, please contact me or

Christopher W. Cummings, Special Counsel, at (202) 418-5430.

Very truly yours,

Ananda Radhakrishnan

Director