Among the more significant amendments made by Title VII of the Dodd-Frank Act to the Commodity Exchange Act are Section 721(a)(5), which added a definition of “commodity pool,” and Section 721(a)(6), which expanded the scope of the term “commodity pool operator” to include those that invest in non-security-based swaps. The Commodity Futures Trading Commission (CFTC) has recently adopted a final rule that defines a “swap” in a way that may expand the scope of the term “commodity pool operator” to include entities that formerly were not included. Accordingly, unless exemptive or equivalent relief is available, a project company that has one or more swaps may be a commodity pool and the sponsor or other operator thereof may be a commodity pool operator or commodity trading advisor and thereby be subject to registration with, and regulatory oversight by, the CFTC.

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