Key takeaways:

• On February 9, 2012, the Commodity Futures Trading Commission (the "CFTC") adopted the final rules (the "Final Rules") that will amend part 4 of the CFTC Regulations relating to commodity pool operators ("CPOs") and commodity trading advisors ("CTAs"), including new forms CPO-PQR and CTA-PR to be filed by CPOs and CTAs.
• The Final Rules will repeal section 4.13(a)(4), which exempts CPOs from CFTC registration where the pools are offered only to qualified eligible persons ("QEPs"). QEPs include, among other persons, qualified purchasers defined under the Investment Company Act and certain non-US persons. The implication of this repeal is that the general partner or sponsor of a private fund that trades or takes positions in commodity interests (such as futures, commodity options and swaps) must register with the CFTC as a CPO, unless it is eligible for another exemption. Many of such general partners or sponsors will be eligible for the de minimis exemption under section 4.13(a)(3), assuming that the relevant private fund does not use commodity interests in excess of the threshold amount under the de minimis test.
• The Final Rules will modify section 4.5 in a manner to require the investment adviser of a registered investment company to register with the CFTC as a CPO unless the use of commodity interests by such investment company meets the de minimis test, which is the same as the 4.13(a)(3) test, except that the use by such investment company of commodity interests will not be taken into account for purposes of such test where such use meets the definition of bona fide hedging transaction under the CFTC Regulations.