e7-17100

[Federal Register: August 31, 2007 (Volume 72, Number 169)]

[Rules and Regulations]

[Page 50209-50211]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr31au07-4]

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COMMODITY FUTURES TRADING COMMISSION

17 CFR Part 21

Special Calls

AGENCY: Commodity Futures Trading Commission.

ACTION: Final rules.

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SUMMARY: The Commodity Futures Trading Commission (``Commission'') has

adopted amendments to Part 21 of its regulations relating to special

calls for information. The amendments will: Add to the types of

information specified in Sec. 21.02, which must be furnished upon

special call, information regarding exchanges of futures for physical

commodities or for derivatives positions, and information regarding

delivery notices issued and stopped; and delegate to the Director of

the Division of Market Oversight and the Director's delegatees, the

ability to issue special calls pursuant to sections 21.01 and 21.02.

EFFECTIVE DATE: August 31, 2007.

FOR FURTHER INFORMATION CONTACT: Don Heitman, Senior Special Counsel

(telephone 202-418-5041, e-mail [email protected]), Division of Market

Oversight, Commodity Futures Trading Commission, Three Lafayette

Center, 1155 21st Street, NW., Washington, DC 20581.

SUPPLEMENTARY INFORMATION:

I. Background

The Commodity Exchange Act (``Act''), as amended by the Commodity

Futures Modernization Act of 2000 (``CFMA''), Pub. L. No. 106-554, is

intended, among other things, to ``deter and prevent price manipulation

or any other disruptions to market integrity.'' \1\ To that end, the

Commission, through its Division of Market Oversight (``Division''),

conducts a comprehensive program of market surveillance. A centerpiece

of this program is the large-trader reporting system, under which all

large futures and option positions are reported to the Commission. Each

day, for every active futures or option market, Division surveillance

staff monitors the activities of large traders, key price

relationships, and all relevant supply and demand factors in a

continuous review for potential market problems. An essential element

of the Commission's market surveillance program is the ability to make

special calls for information from Commission registrants and other

market participants.

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\1\ Commodity Exchange Act Sec. 3(b), 7 U.S.C. Sec. 5(b).

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A. Information To Be Furnished Upon Special Call

Part 17 of the Commission's regulations sets forth the routine

reports that futures commission merchants, members of contract markets

and foreign brokers (collectively, ``reporting firms'') are required to

submit to the Commission.\2\ These reports provide the information for

the Commission's large trader reporting system. The Commission uses

that information in its market surveillance program to detect and

prevent market manipulation or other disruptions to market integrity in

markets subject to Commission oversight.

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\2\ The Commission has recently proposed amendments to its

definition of the term, ``foreign broker.'' The amended definition

would also be relocated, from its current location at Sec. 15.00(g)

to Sec. 1.3(xx). See 72 FR 15637 (April 2, 2007). If such

amendments were to be adopted, there would be no change in a foreign

broker's obligations to comply with the Commission's large trader or

special call regulations set forth in 17 CFR Parts 15-21.

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By contrast, the purpose of the Commission's special call authority

in Part 21 of the Commission's regulations is to provide the Commission

with relevant information that is not routinely supplied to the

Commission pursuant to other parts of the

[[Page 50210]]

Commission's regulations such as Part 17. For example, the Commission

may need to know about futures positions that are below the routine

reporting levels specified in Part 15 of the Commission's regulations.

Among possible reasons for such special needs for information may be a

particular market situation that warrants unusually close Commission

market surveillance, or when Commission staff is conducting an audit of

reporting firms to ensure complete and accurate reporting.

The amendments to Part 21 require reporting firms to retain and

make available to the Commission, upon a special call, information

similar to that which they are required to report to the Commission

pursuant to Part 17 of the Commission's regulations. Specifically, the

amendments add two additional categories of information to the types of

information specified in Sec. 21.02, which must be furnished upon

special call. The first additional category of information subject to

special call under the amended rules includes information regarding

futures contracts exchanged for physical commodities (``EFPs''), as

well as futures contracts exchanged for other derivatives contracts,

including exchanges of futures for options (``EFOs'') and exchanges of

futures for swaps (``EFSs''). The second additional category of

information includes the amount of futures contracts where actual

delivery of the underlying commodity has been initiated (i.e., delivery

notices have been issued or received).

Section 21.02 applies to futures commission merchants (``FCMs''),

introducing brokers (``IBs''), members of contract markets and foreign

brokers. However, the first three of the foregoing categories are

already subject to substantial reporting and recordkeeping requirements

under Sec. 1.35 of the Commission's regulations, which, among other

things, requires FCMs, IBs and contract market members to maintain, and

produce on request, the records that are also the subject of these

rules. Therefore, as a practical matter, the amended rules impose new

requirements only on foreign brokers (who are not subject to Sec.

1.35).

Foreign brokers and other persons receiving a special call pursuant

to Sec. 21.02 are required by that regulation to furnish the

information requested. Since such persons cannot comply with the legal

requirement to furnish information pursuant to a special call without

maintaining records from which to generate the information requested,

it follows that persons subject to special calls under Sec. 21.02 are

required, by the Commission's regulations, to maintain such records.

Therefore, such records--including both those previously listed in

Sec. 21.02, and those that are added by this rule amendment--are

subject to the five-year record retention requirements of Sec.

1.31(a)(1) of the regulations, which provides in relevant part that:

All books and records required to be kept by the Act or by these

regulations shall be kept for a period of five years from the date

thereof and shall be readily accessible during the first two years of

the five-year period.

B. Delegation of Authority

The amendments adopted herein also delegate to the Director of the

Division of Market Oversight, and the Director's delegatees, the power

to issue special calls pursuant to sections 21.01 and 21.02. Consistent

with other delegations of authority to Commission senior staff, the

delegation of the Part 21 special call authority allows the Director to

submit to the Commission for its consideration any matter that has been

delegated pursuant to the new section. The amendment also preserves the

Commission's ultimate authority over the special calls by providing

that, ``nothing in this section shall be deemed to prohibit the

Commission, at its election, from exercising the authority delegated *

* * to the Director.''

C. The Proposed Rules

These amendments were published for comment at 72 FR 34417, June

22, 2007, with a 30-day comment period. No comments were received in

response to the notice of proposed rulemaking. Accordingly, the

amendments have been adopted as proposed.

II. Cost Benefit Analysis

Section 15 of the Act, as amended by section 119 of the CFMA,

requires the Commission to consider the costs and benefits of its

action before issuing a new regulation or order under the Act. By its

terms, Sec. 15(a) does not require the Commission to quantify the

costs and benefits of its action or to determine whether the benefits

of the action outweigh its costs. Rather, Sec. 15(a) simply requires

the Commission to ``consider the costs and benefits'' of the subject

rule or order.

Section 15(a) further specifies that the costs and benefits of the

proposed rule or order shall be evaluated in light of five broad areas

of market and public concern: (1) Protection of market participants and

the public; (2) efficiency, competitiveness, and financial integrity of

futures markets; (3) price discovery; (4) sound risk management

practices; and (5) other public interest considerations. The Commission

may, in its discretion, give greater weight to any one of the five

enumerated areas of concern and may, in its discretion, determine that,

notwithstanding its costs, a particular rule or order is necessary or

appropriate to protect the public interest or to effectuate any of the

provisions or to accomplish any of the purposes of the Act.

The amendments supplement the Commission's rules regarding its

market surveillance program. That program supports one of the

Commission's most critical statutory responsibilities, deterring and

preventing price manipulation or any other disruptions to market

integrity. Effective surveillance activities are crucial not only to

protecting market participants and the public from price manipulation,

but also to: Promoting market efficiency, competitiveness and financial

integrity; protecting the futures markets' price discovery function;

and promoting sound risk management practices.

In addition, the records that are subject to special call under

these amendments are the type of basic transaction records that any

foreign broker would create as a matter of sound business practices.

Because these records would be created in any event, independently of

any regulatory requirements, the rules impose no additional costs on

foreign brokers in that area. There would be minimal costs associated

with providing the records in answer to a special call, but such costs

would be far outweighed by the benefits of protecting the markets and

the public. Finally, with respect to the five-year record retention

requirement that applies to these records, the cost of retaining the

records will be minimal because Commission rules allow such records to

be maintained electronically. Those minimal costs would, again, be far

outweighed by the benefits of protecting the marketplace and the

public.

The Commission has considered the costs and benefits of the

amendments to Part 21 regarding special calls in light of the above-

noted specific areas of concern identified in section 15. The

Commission believes that the amended rules impose the minimum

requirements necessary to enable it to perform its oversight functions

and to carry out its mandate to protect the public interest in markets

that are free of fraud, abuse and manipulation.

After considering these factors, the Commission has determined to

adopt the rule amendments set forth below.

In the notice of proposed rulemaking, the Commission specifically

invited

[[Page 50211]]

public comment on its application of the criteria contained in the Act.

Commenters were also invited to submit any quantifiable data that they

might have concerning the costs and benefits of the proposed rules with

their comment letter. As noted above, no comments were received.

III. Related Matters

A. Regulatory Flexibility Act

The Regulatory Flexibility Act (``RFA''), 5 U.S.C. 601 et seq.,

requires federal agencies, in promulgating rules, to consider the

impact of those rules on small entities. The amendment to Sec. 21.02

applies to FCMs, IBs, members of contract markets and foreign brokers.

However, as noted above, the first three of these categories are

already subject to substantial reporting and recordkeeping requirements

under Sec. 1.35 of the Commission's regulations. Among other things,

that section requires FCMs, IBs and contract market members to

maintain, and produce on request, the records that are also the subject

of these rules. Therefore, as a practical matter, the rules impose new

requirements only on foreign brokers (who are not subject to Sec.

1.35).

With respect to such foreign brokers, the Commission recently

published proposed rules to exempt from registration certain foreign

persons (including foreign brokers).\3\ In reviewing the applicability

of the RFA to such foreign persons, the Commission noted that it has

previously established certain definitions of ``small entities'' to be

used in evaluating the impact of its regulations on such entities in

accordance with the RFA.\4\ The Commission has previously determined

that FCMs are not small entities for purposes of the RFA because each

FCM has an underlying fiduciary relationship with its customers,

regardless of the size of the FCM.\5\ The Commission notes that the

foreign brokers affected by these amendments to the Commission's

regulations would be required to be registered as FCMs if not for

certain exemptions provided in Commission regulations. As such, they

would maintain a fiduciary relationship with customers similar to the

relationship maintained by each registered FCM. Therefore, in this

context foreign brokers, like FCMs, are not appropriately categorized

as small entities. Accordingly, the Acting Chairman, on behalf of the

Commission, hereby certifies pursuant to 5 U.S.C. 605(b) that the rules

will not have a significant economic impact on a substantial number of

small entities.

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\3\ 72 FR 15673 (April 2, 2007).

\4\ 47 FR 18618, at 18621 (April 30, 1982).

\5\ Id. at 18619.

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B. Paperwork Reduction Act

These rules contain information collection requirements. As

required by the Paperwork Reduction Act of 1995 (``PRA''),\6\ the

Commission submitted a copy of the rules to the Office of Management

and Budget (``OMB'') for its review.

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\6\ Pub. L. 104-13 (May 13, 1995).

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The amended rules have been reviewed and approved by OMB pursuant

to the PRA, under control number 3038-0009. An agency may not conduct

or sponsor, and a person is not required to respond to, a collection of

information unless it displays a valid control number. In the Notice of

Proposed Rulemaking, the Commission estimated the paperwork burden that

could be imposed by the amendments and solicited comments thereon.\7\

No comments were received.

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\7\ 72 FR 34417 (June 22, 2007).

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Copies of the information collection submission to OMB are

available from the Commission Clearance Officer, Three Lafayette

Centre, 1155 21st Street, NW., Washington, DC 20581, (202) 418-5160.

List of Subjects

Commodity futures, Commodity Futures Trading Commission.

0

In consideration of the foregoing, and pursuant to the authority in the

Commodity Exchange Act, the Commission hereby amends Part 21 of Title

17 of the Code of Federal Regulations as follows:

PART 21--SPECIAL CALLS

0

1. The authority section for Part 21 continues to read as follows:

Authority: 7 U.S.C. 1a, 2, 2a, 4, 6a, 6c, 6f, 6g, 6i, 6k, 6m,

6n, 7, 7a, 12a, 19 and 21; 5 U.S.C. 552 and 552(b).

0

2. Section 21.02 is amended by removing the word, ``and,'' at the end

of paragraph (f), by redesignating paragraph (g) as paragraph (i), and

by adding new paragraphs (g) and (h).

The additions read as follows:

Sec. 21.02 Special calls for information on open contracts in

accounts carried or introduced by futures commission merchants, members

of contract markets, introducing brokers, and foreign brokers.

* * * * *

(g) The total number of futures contracts exchanged for commodities

or for derivatives positions;

(h) The total number of futures contracts against which delivery

notices have been issued or received; and

* * * * *

0

3. Section 21.04 is added to read as follows:

Sec. 21.04 Delegation of authority to the Director of the Division of

Market Oversight.

The Commission hereby delegates, until the Commission orders

otherwise, to the Director of the Division of Market Oversight, or to

the Director's delegates, the authority set forth in section 21.01 of

this Part to make special calls for information on controlled accounts

from futures commission merchants and from introducing brokers and the

authority set forth in section 21.02 of this Part to make special calls

for information on open contracts in accounts carried or introduced by

futures commission merchants, members of contract markets, introducing

brokers, and foreign brokers. The Director may submit to the Commission

for its consideration any matter that has been delegated pursuant to

this section. Nothing in this section shall be deemed to prohibit the

Commission, at its election, from exercising the authority delegated in

this section to the Director.

Issued in Washington, DC, on August 23, 2007, by the Commission.

David Stawick,

Secretary of the Commission.

[FR Doc. E7-17100 Filed 8-30-07; 8:45 am]

BILLING CODE 6351-01-P

Last Updated: August 31, 2007