[Federal Register: July 28, 2004 (Volume 69, Number 144)]
[Proposed Rules]
[Page 44981-44988]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr28jy04-21]
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COMMODITY FUTURES TRADING COMMISSION
17 CFR Parts 40, 41, and 145
Confidential Information and Commission Records and Information
AGENCY: Commodity Futures Trading Commission.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Commodity Futures Trading Commission is proposing to
revise its regulations to specify which portions of an application for
registration as a derivatives transaction execution facility (DTEF),
derivatives clearing organization (DCO), or designated contract market
(DCM) will be public. The Commission also proposes to implement a
procedure requiring registered entities to submit a cover sheet for all
rule submissions. Additionally, the Commission proposes to amend its
regulations under the Freedom of Information Act (FOIA) to implement
the 1996 amendments to the FOIA. The proposed rules implement expedited
processing and increased time limits; update the schedule of fees for
FOIA requests; and correct certain provisions concerning publicly
available records.
DATES: Submit comments on or before August 27, 2004.
ADDRESSES: You may submit comments by any of the following methods:
• Federal eRulemaking Portal: href="http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.regulations.gov" shape="rect">http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.regulations.gov.
• Mail/Hand Deliver: Jean A. Webb, Secretary of the
Commission, Commodity Futures Trading Commission, Three Lafayette
Centre, 1155 21st Street, NW., Washington, DC 20581.
• E-mail: [email protected].
FOR FURTHER INFORMATION CONTACT: Eileen A. Donovan, Assistant Secretary
to the Commission for FOIA Matters, (202) 418-5096, electronic mail:
[email protected], or David Steinberg, Attorney Advisor, (202) 418-
5102, electronic mail: [email protected], Office of the Secretariat,
Commodity
[[Page 44982]]
Futures Trading Commission, Three Lafayette Centre, 1155 21st Street,
NW., Washington, DC 20581.
SUPPLEMENTARY INFORMATION:
I. Background--Need for Revisions
A. Appendix D--Submission Cover Sheet and Instructions and Public
Availability of Rule Submissions
On August 4, 2003, the Commission circulated a letter to all
registered entities advising them of the Commission's new policy of
posting rules submitted by DTEFs, DCOs, and DCMs on the Commission's
Web site. In this letter, the Commission requested that a Commission-
generated rule submission cover sheet accompany all self-certified
rules,\1\ self-certified products,\2\ rules submitted for Commission
approval,\3\ products submitted for Commission approval,\4\
notifications of rule amendments,\5\ and non-material agricultural rule
changes.\6\ The Commission proposes to incorporate this policy into
parts 40 and 41 of the Commission's regulations.
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\1\ Commission Regulations 40.6(a) and 41.24.
\2\ Commission Regulations 40.2 and 41.23.
\3\ Commission Regulations 40.4(a) and 40.5.
\4\ Commission Regulation 40.3.
\5\ Commission Regulation 40.6(c).
\6\ Commission Regulation 40.4(b).
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Specifically, the Commission proposes adding the phrase ``A copy of
the submission cover sheet in accordance with the instructions in
Appendix D'' to all of the applicable sections of the part 40 and 41
regulations.\7\ Appendix D has been added to part 40 to include a copy
of the cover sheet along with step-by-step instructions for completing
and returning the form to the Commission. This cover sheet will assist
Commission staff in preparing and maintaining the accuracy of the
submissions being published on the Commission's Web site. Publishing
these submissions on the Commission's website is consistent with the
Commission's history of making certified rules and products and other
rule submissions public.\8\ Therefore, making these submissions
available on the Commission's Web site will continue the policy of
providing the public with access to industry information.
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\7\ Commission Regulations 40.3(a)(4) and (a)(5), 40.5(a)(1)(vi)
and (a)(1)(vii), 40.6(a)(3)(iv) and (a)(3)(v), 41.23(a)(4) and
(a)(5), and 41.24(a)(3) and (a)(4) are being revised to accommodate
the addition of a new paragraph to the respective sections that will
require the submission of the cover sheet. (See, e.g., 40.3(a)(3)
with deletion of ``and'' at the end of the paragraph and 40.3(a)(4)
by replacing the ``;'' with ``.'' at the end of the paragraph).
\8\ Previously, rule submissions were only available in the
Commission's reading room. Commission staff had consistently
determined that submissions filed pursuant to section 5a(a)(12) of
the Commodity Exchange Act (CEA) were public. See 7 U.S.C. 1 et seq.
(2000). Section 5a(a)(12) was removed from the CEA with the passage
of the Commodity Futures Modernization Act of 2000. The Commission
believes these submissions filed under new sections of the CEA
should continue to be made publicly available, as they do not cause
any competitive harm to the applicant. See, e.g., sections 5c(c)(1)
and 5c(c)(2) of the CEA.
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B. Public Availability of DTEF, DCO, and DCM Applications
The Commission proposes designating the current text in Sec. 40.8
of the Commission's regulations as paragraph (b) and adding paragraph
(a) to specify that certain portions of DTEF, DCO, and DCM applications
are publicly available.\9\ The proposed addition to Sec. 40.8 is
intended to address the absence in the Commission's regulations of any
guidance to applicants or the public about the availability of the
applications.
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\9\ In addition to posting applications for designation and
registration, the Commission will post proposed amendments to
applications on the Commission's Web site. The Commission also will
post requests for relief pursuant to part 30 of the Commission's
regulations.
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Commission staff have consistently determined that the release of
the following documents does not cause any competitive harm to the
applicant and that they should be made publicly available: transmittal
letter, proposed rules, the applicant's regulatory compliance chart,
documents establishing the applicant's legal status (e.g., corporate
charters), and documents setting forth the applicant's governance
structure.\10\ Consequently, this list of documents has been
incorporated into the proposed changes to Sec. 40.8(a).
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\10\ The identical sections of applications seeking designation
or registration as a DCM or DTEF under section 6(a) of the CEA will
be publicly available.
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C. Expedited Processing of FOIA Requests
The FOIA, 5 U.S.C. 552 (2000), requires Federal agencies to
promulgate regulations providing for expedited processing of requests
for records. 5 U.S.C. 522(a)(6)(E)(i). Under the Commission's proposed
regulation, to receive expedited processing a requester must
demonstrate either (1) That a failure to obtain the requested records
on an expedited basis could reasonably be expected to pose an imminent
threat to an individual's life or physical safety, or (2) if the
request is from a person primarily engaged in disseminating
information, an urgency to inform the public concerning actual or
alleged federal government activity. The requester will receive a
decision within ten days after the date of the request and, if
expedited processing is denied, may appeal the decision to the Office
of General Counsel.
D. Appendix A--Compilation of Commission Records Available to the
Public
Appendix A to 17 CFR Part 145 lists documents available, upon
request, directly from the Commission offices indicated. Under the
current Commission regulations, the Office of the Secretariat can
provide terms and conditions of proposed contracts after the
publication of notice of availability in the Federal Register, as well
as exchange section 5a(a)(12) rule amendment proposals and Commission
responses.
The Commission is amending Appendix A (b)(2) to reflect that terms
and conditions of proposed contracts and products are now publicly
available at the time of their submission to the Commission, in
accordance with Sec. 40.2 of the Commission's regulations for
certified products and Sec. 40.6 for certified rules.\11\ In Appendix
A (b)(3), the reference to Sec. 5a(a)(12) is being removed, as Sec.
5a(a)(12) has been deleted from the CEA. The term ``exchange'' is being
replaced with ``registered entity'' as defined by Sec. 1a(29) of the
CEA to include submissions filed by a DCM, DTEF, or a DCO, and a
reference to Sec. 40.1 is being added to define the rules available
under this provision.
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\11\ Notification of rule amendments under Commission Regulation
40.6(c) will also be available at the time of submission.
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The Commission also proposes adding Appendix A (b)(13) to reflect
that certain portions of applications submitted by entities seeking to
become designated as a DCM or registered as a DTEF or DCO are publicly
available. The proposed list of publicly available material in
paragraph (b)(13) is identical to the proposed list in Sec. 40.8(a).
The Commission proposes placing this list in Appendix A (b)(13) and
Sec. 40.8(a) to ensure that applicants are fully aware at the time of
filing which sections are public and the public will be on notice that
this information is available.
E. Appendix B--Schedule of Fees
The FOIA requires Federal agencies to establish a schedule of fees
for the processing of requests for agency records in accordance with
guidelines issued by the Office of Management and Budget (OMB). 5
U.S.C. 552(a)(4)(A)(i). Agencies' fee schedules can provide for the
recovery of only the direct costs of searching for, reviewing, and
duplicating records, and OMB's Uniform Freedom of Information Act
[[Page 44983]]
Fee Schedule and Guidelines define the direct costs of search and
review as the salary rate (basic pay plus 16 percent to cover benefits)
of the employee performing the task. 52 FR 10018 (Mar. 27, 1987).
On May 22, 1987, the Commission published its FOIA fee schedule at
52 FR 19306, based on the average salary rates for professional and
clerical staff under the General Schedule effective January 1987. The
Commission is now revising its fee schedule to correspond with
modifications in the rate of pay since the fee schedule was
established. Using the General Schedule currently in effect, the
Commission has calculated its direct costs for search and review of
records by professional staff (average salary rate of GS-13, Step 4) as
$41.75 per hour and by clerical staff (average salary rate of GS-7,
Step 4) as $19.79 per hour. After rounding, the current quarter-hourly
fee increases from $4.50 to $10.25 for professional search and review,
and from $3.00 to $4.75 for clerical search and review. The Commission
will continue to charge $0.15 per page for photocopying.
The FOIA also requires agencies to waive any fee for which the
costs of routine collection and processing of the fee are likely to
equal or exceed the amount of the fee. 5 U.S.C. 552(a)(4)(A)(iv). Due
to increased costs, the Commission is increasing its waiver amount from
$5.00 to $10.00.
In addition, the Commission is revising Appendix B (a)(3) to remove
a description of fees for searches of records stored on the
Commission's mainframe computer, which is no longer in use.
F. Other Changes
The Commission is removing the reference to Sec. 145.0(c) from
Sec. 145.6(a), which pertains to Commission records available to the
public. Section 145.0(c) does not exist.
The Commission is also revising Sec. 145.9(e)(2), which allows the
Assistant Secretary to grant an extension of time for submission of a
detailed written justification of a request for confidential treatment
``only under exceptional circumstances'', to be consistent with Sec.
145.9(d)(7), which allows an extension to be granted ``upon request and
for good cause shown.''
Finally, the Commission is removing Appendix D to 17 CFR part 145
because the Commission no longer charges for publication of its weekly
advisory calendar. This information is now available on the
Commission's Web site, and paragraph (a)(2) of Appendix A to 17 CFR
part 145 is being amended to reflect this change.
II. Related Matters
A. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA), 5 U.S.C. 601 et seq. (2000),
requires that agencies, in proposing regulations, consider the impact
of those regulations on small entities. The regulations discussed
herein would affect contract markets and other registered entities. The
Commission has previously established certain definitions of ``small
entities'' to be used by the Commission in evaluating the impact of its
regulations in accordance with the RFA.\12\ In its previous
determinations, the Commission has concluded that DCMs, DTEFs, and DCOs
are not small entities for purposes of the RFA.\13\
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\12\ 47 FR 18618-21 (Apr. 30, 1982).
\13\ 47 FR 18618, 18619 (April 30, 1982) (discussing contract
markets); 66 FR 42256, 42268 (August 10, 2001) (discussing DTEFs);
66 FR 45605, 45609 (August 29, 2001) (discussing DCOs).
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The Commission has previously determined, pursuant to 5 U.S.C.
605(b), that part 145 regulations do not have a significant economic
impact on a substantial number of small entities. Because they do not
impose regulatory obligations on commodity professionals and small
commodity firms and because, if instituted, the changes will improve
public access to Commission records and information, the Commission
does not expect the proposed regulations to have a significant economic
impact on a substantial number of small entities. Therefore, the
Chairman, on behalf of the Commission, hereby certifies, pursuant to 5
U.S.C. 605(b), that the changes proposed herein will not have a
significant economic impact on a substantial number of small entities.
The Commission nonetheless invites the public to comment on the
significance of the economic impact of the proposed regulations, if
any, on small entities.
B. Paperwork Reduction Act
This proposed rulemaking contains information collection
requirements. As required by the Paperwork Reduction Act (PRA) of 1995
(44 U.S.C. 3504(h)), the Commission has submitted a copy of this
section to the Office of Management and Budget (OMB) for its review.
Collection of Information: Rules Relating to Part 40, Provisions
Common to DCMs, DTEFs, and DCOs, OMB Control Number 3038-0022.
The expected effect of the proposed amended rules will be to
increase the burden previously approved by OMB for this collection of
information by 20.625 hours as it will result in the filing of one
additional page for each submission under Commission regulations 40.2,
40.3, 40.4, 40.5, and 40.6.
The estimated burden was calculated as follows:
Estimated number of respondents: 16.
Annual responses by each respondent: 39.0625.
Total annual responses: 625.
Estimated average hours per response: .033.
Annual reporting burden: 20.625.
Collection of Information: Rules Relating to Part 41, Security
Futures Products, OMB Control Number 3038-0059.
The expected effect of the proposed amended rules will be to
increase the burden previously approved by OMB for this collection of
information by 2.475 hours as it will result in the filing of one
additional page for each submission under commission regulations 41.23
and 41.24.
Estimated number of respondents: 3.
Annual responses by each respondent: 25.
Total annual responses: 75.
Estimated average hours per response: .033.
Annual reporting burden: 2.475.
Organizations and individuals desiring to submit comments on the
information collection requirements should direct them to the Office of
Information and Regulatory Affairs, Office of Management and Budget,
Room 10202, New Executive Office Building, 725 17th Street, NW.,
Washington, DC 20503; Attention: Desk Officer for the Commodity Futures
Trading Commission.
In compliance with the PRA, the Commission through these proposed
rules solicits comments to: (1) Evaluate whether the proposed
collection of information is necessary for the proper performance of
the functions of the Commission, including whether the information will
have a practical use; (2) evaluate the accuracy of the Commission's
estimate of the burden of the proposed collection of information,
including the validity of the methodology and assumptions used; (3)
enhance the quality, usefulness, and clarity of the information to be
collected; and (4) minimize the burden of collecting information on
those who are to respond, including through the use of appropriate
automated electronic, mechanical, or other technological collection
techniques or other forms of information technology; e.g., permitting
electronic submission responses.
OMB is required to make a decision concerning the collection of
information contained in these proposed regulations between 30 and 60
days after publication of this document in the
[[Page 44984]]
Federal Register. Therefore, a comment to OMB is best assured of having
its full effect if OMB receives it within 30 days of publication. This
does not affect the deadline for the public to comment to the
Commission on the proposed regulations. Copies of the information
collection submission to OMB are available from the CFTC Clearance
Officer, 1155 21st Street, NW., Washington, DC 20581, (202) 418-5160.
C. Cost-Benefit Analysis
Section 15(a) 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 under the Act. By its terms,
section 15(a) as amended does not require the Commission to quantify
the costs and benefits of a new regulation or to determine whether the
benefits of the regulation outweigh its costs. Rather, section 15(a)
simply requires the Commission to ``consider the costs and benefits''
of its action.
Section 15(a) of the Act further specifies that costs and benefits
shall be evaluated in light of five broad areas of market and public
concern: Protection of market participants and the public; efficiency,
competitiveness, and financial integrity of futures markets; price
discovery; sound risk management practices; and other public interest
considerations. Accordingly, the Commission could in its discretion
give greater weight to any one of the five enumerated areas and could
in its discretion determine that, notwithstanding its costs, a
particular rule was 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 proposed rulemaking consists of several
amendments requiring registered entities to attach a submission cover
sheet with all rule filings. The Commission is considering the costs
and benefits of these proposed rules in light of the specified
provisions of section 15(a) of the Act:
1. Protection of market participants and the public. The proposed
amendments should have no effect on the Commission's ability to protect
market participants and the public.
2. Efficiency and competition. The proposed amendments are expected
to benefit efficiency by making rule submissions available to the
public on the Commission's Web site. The Commission anticipates that
the costs of compliance with the proposed filing requirements will be
minimal and the submission cover sheet will assist in maintaining the
accuracy of publishing the rule filings on the Commission's Web site.
The proposed amendments should have no effect, from the standpoint of
imposing costs or creating benefits, on competition in the futures and
options markets.
3. Financial integrity of futures markets and price discovery. The
amendments should have no effect, from the standpoint of imposing costs
or creating benefits, on the financial integrity or price discovery
function of the futures and options markets.
4. Sound risk management practices. The amendments being proposed
herein should have no effect on the risk management practices of the
futures and options industry.
5. Other public considerations. No additional public considerations
could be determined.
After considering these factors, the Commission has determined to
propose the amendments discussed above. The Commission invites public
comment on its application of the cost-benefit provision. Commenters
also are invited to submit any data that they may have quantifying the
costs and benefits of the proposal with their comment letters.
List of Subjects
17 CFR Part 40
Commodity futures, Contract markets, Designation application,
Reporting and recordkeeping requirements.
17 CFR Part 41
Security futures.
17 CFR Part 145
Freedom of information.
For the reasons stated in the preamble, the Commodity Futures
Trading Commission proposes to amend 17 CFR parts 40, 41, and 145 as
follows:
PART 40--PROVISIONS COMMON TO CONTRACT MARKETS, DERIVATIVES
TRANSACTION EXECUTION FACILITIES AND DERIVATIVES CLEARING
ORGANIZATIONS
1. The authority for part 40 continues to read as follows:
Authority: 7 U.S.C. 1a, 2, 5, 6, 6c, 7, 7a, 8 and 12a, as
amended by appendix E of Pub. L. 106-554, 114 Stat. 2763A-365.
2. Section 40.2 is revised to read as follows:
Sec. 40.2 Listing products for trading by certification.
To list a new product for trading, to list a product for trading
that has become dormant, or to accept for clearing a product (not
traded on a designated contract market or a registered derivatives
transaction execution facility), a registered entity must file with the
Secretary of the Commission at its Washington, DC, headquarters no
later than the close of business of the business day preceding the
product's listing or acceptance for clearing, either in electronic or
hard copy form, a copy of the submission cover sheet in accordance with
the instructions in Appendix D to this part, a copy of the product's
rules, including its terms and conditions, or the rules establishing
the terms and conditions of products that make them acceptable for
clearing, and a certification by the registered entity that the trading
product or other instrument, or the clearing of the trading product or
other instrument, including any rules establishing the terms and
conditions of products that make them acceptable for clearing, complies
with the Act and regulations thereunder.
3. Section 40.3 is amended by revising paragraphs (a)(4) and (a)(5)
and by adding paragraph (a)(6) to read as follows:
Sec. 40.3 Voluntary submission of new products for Commission review
and approval.
(a) * * *
(4) The submission identifies with particularity information in the
submission, except for the product's terms and conditions which are
made publicly available at the time of submission, that will be subject
to a request for confidential treatment and supports that request for
confidential treatment with reasonable justification;
(5) The submission includes the fee required under Appendix B to
this part; and
(6) The submission includes a copy of the submission cover sheet in
accordance with the instructions in Appendix D to this part.
* * * * *
4. Section 40.5 is amended by revising paragraphs (a)(1)(vi) and
(a)(1)(vii) and by adding paragraph (a)(1)(viii) to read as follows:
Sec. 40.5 Voluntary submission of rules for Commission review and
approval.
(a) * * *
(1) * * *
(vi) Identify any Commission regulation that the Commission may
need to amend, or sections of the Act or Commission regulations that
the Commission may need to interpret in order to approve the proposed
rule. To the extent that such an amendment or interpretation is
necessary to accommodate a proposed rule, the submission should include
a reasoned analysis supporting the amendment to the Commission's rule
or interpretation;
[[Page 44985]]
(vii) Identify with particularity information in the submission
(except for a product's terms and conditions, which are made publicly
available at the time of submission) that will be subject to a request
for confidential treatment and support that request for confidential
treatment with reasonable justification; and
(viii) Include a copy of the submission cover sheet in accordance
with the instructions in Appendix D to this part.
* * * * *
5. Section 40.6 is amended by revising paragraphs (a)(3)(iv) and
(a)(3)(v) and adding paragraph (a)(3)(vi) to read as follows:
Sec. 40.6 Self-certification of rules by designated contract markets
and registered derivatives clearing organizations.
(a) * * *
(3) * * *
(iv) A brief explanation of any substantive opposing views not
incorporated into the rule;
(v) A certification by the entity that the rule complies with the
Act and regulations thereunder; and
(vi) A copy of the submission cover sheet in accordance with the
instructions in Appendix D to this part.
* * * * *
6. Section 40.8 is amended by redesignating the current paragraph
as paragraph (b) and by adding new paragraph (a) to read as follows:
Sec. 40.8 Availability of public information.
(a) The following sections of all applications to become a
registered entity will be public: transmittal letter, proposed rules
(as defined in Sec. 40.1 of this chapter), the applicant's regulatory
compliance chart, documents establishing the applicant's legal status,
documents setting forth the applicant's governance structure, and any
other part of the application not covered by a request for confidential
treatment.
* * * * *
6a. Appendix C to part 40 is added and reserved.
Appendix C to Part 40 [Reserved]
7. Appendix D is added to part 40 to read as follows:
Appendix D to Part 40--Submission Cover Sheet and Instructions
A properly completed submission cover sheet must accompany all
rule submissions submitted by a designated contract market,
registered derivatives clearing organization, or registered
derivatives transaction execution facility and forwarded either in
hard copy form or electronically to the Secretary of the Commodity
Futures Trading Commission, Three Lafayette Centre, 1155 21st
Street, NW., Washington, DC 20581 or electronically to
[email protected] in a format specified by the Secretary of the
Commission. Each submission should include the following:
1. Identifier Code (optional)--If applicable, the exchange or
clearing organization Identifier Code at the top of the cover sheet.
Such codes are commonly generated by the exchanges or clearing
organizations to provide an identifier that is unique to each filing
(e.g., NYMEX Submission 03-116).
2. Date--The date of the filing.
3. Organization--The name of the organization filing the
submission (e.g., CBOT).
4. Filing as a--Check the appropriate box for a designated
contract market (DCM), derivatives clearing organization (DCO), or
derivatives transaction execution facility (DTEF).
5. Type of Filing--Indicate whether the filing is a rule
amendment or new product and the applicable category under that
heading.
6. Rule Numbers--For rule filings only, identify rule number(s)
being adopted or modified in the case of rule amendment filings.
7. Description--For rule or rule amendment filings only, enter a
brief description of the new rule or rule amendment. This narrative
should describe the substance of the submission with enough
specificity to characterize all essential aspects of the filing.
A sample of the required submission cover sheet follows.
BILLING CODE 6351-01-P
[[Page 44986]]
[GRAPHIC] [TIFF OMITTED] TP28JY04.017
BILLING CODE 6351-01-C
PART 41--SECURITY FUTURES PRODUCTS
8. The authority citation for part 41 continues to read as follows:
Authority: Sections 206, 251 and 252, Pub. L. 106-554, 114 Stat.
2763, 7 U.S.C. 1a, 2, 6f, 6j, 7a-2, 12a; 15 U.S.C. 78g(c)(2).
9. Section 41.23 is amended by revising paragraphs (a)(4) and
(a)(5) and by adding paragraph (a)(6) to read as follows:
Sec. 41.23 Listing of security futures products for trading.
(a) * * *
[[Page 44987]]
(4) Includes a certification that the terms and conditions of the
contract comply with the additional conditions for trading of Sec.
41.25;
(5) If the board of trade is a designated contract market pursuant
to section 5 of the Act or a registered derivatives transaction
execution facility pursuant to section 5a of the Act, it includes a
certification that the security futures product complies with the Act
and rules thereunder; and
(6) Includes a copy of the submission cover sheet in accordance
with the instructions in Appendix D of Part 40.
* * * * *
10. Section 41.24 is amended by revising paragraphs (a)(3) and
(a)(4) and by adding paragraph (a)(5) to read as follows:
Sec. 41.24 Rule amendments to security futures products.
(a) * * *
(3) Includes a certification that the designated contract market or
registered derivatives clearing organization has filed the rule or rule
amendment with the Securities and Exchange Commission, if such a filing
is required;
(4) If the board of trade is a designated contract market pursuant
to section 5 of the Act or is a registered derivatives clearing
organization pursuant to section 5b of the Act, it includes the
documents and certifications required to be filed with the Commission
pursuant to Sec. 40.6 of this chapter, including a certification that
the security futures product complies with the Act and rules
thereunder; and
(5) Includes a copy of the submission cover sheet in accordance
with the instructions in Appendix D of Part 40.
* * * * *
PART 145--COMMISSION RECORDS AND INFORMATION
11. The authority citation for part 145 continues to read as
follows:
Authority: Pub. L. 99-570, 100 Stat. 3207, Pub. L. 89-554, 80
Stat. 383, Pub. L. 90-23, 81 Stat. 54, Pub. L. 93-502, 88 Stat.
1561-1564 (5 U.S.C. 552); Sec. 101(a), Pub. L. 93-463, 88 Stat. 1389
(5 U.S.C. 4a(j)); unless otherwise noted.
12. Section 145.7 is amended by revising the first sentence of
paragraph (h)(3), by redesignating paragraph (j) as paragraph (i)(7),
and by adding a new paragraph (j) to read as follows:
Sec. 145.7 Requests for Commission records and copies thereof.
* * * * *
(h) * * *
(3) The Assistant Secretary, or his or her designee, will issue an
initial determination with respect to a FOIA request within twenty
business days after receipt by the Assistant Secretary. * * *
* * * * *
(j) Expedited processing. A request may be given expedited
processing if the requester demonstrates a compelling need for the
requested records. For purposes of this section, the term ``compelling
need'' means: That a failure to obtain requested records on an
expedited basis could reasonably be expected to pose an imminent threat
to the life or physical safety of an individual; or with respect to a
request made by a person primarily engaged in disseminating
information, urgency to inform the public concerning actual or alleged
federal government activity. A requester who seeks expedited processing
must demonstrate a compelling need by submitting a statement that is
certified by the requester to be true and correct to the best of that
person's knowledge and belief. The Assistant Secretary, or his or her
designee, will determine whether to provide expedited processing, and
notice of the determination will be provided to the requester, within
ten days after the date of the request. If the request for expedited
processing is denied, the requester may file an appeal with the Office
of General Counsel within ten days of the date of the denial by the
Assistant Secretary. The Office of General Counsel will respond to the
appeal within ten days after the date of the appeal.
13. Section 145.9 is amended by revising paragraph (e)(2) to read
as follows:
Sec. 145.9 Petition for confidential treatment of information
submitted to the Commission.
* * * * *
(e) * * *
(2) The period for filing a detailed written justification may be
extended upon request and for good cause shown.
* * * * *
14. Appendix A to part 145 is amended by revising paragraph (a)(2),
the heading of paragraph (b), paragraphs (b)(2) and (b)(3), and adding
paragraph (b)(13) to read as follows:
Appendix A To Part 145--Compilation of Commission Records Available to
the Public
* * * * *
(a) * * *
(2) Weekly Advisory (solely available on the Commission's Web
site at href="http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.cftc.gov/cftc/cftcpressoffice.htm" shape="rect">http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.cftc.gov/cftc/cftcpressoffice.htm).
* * * * *
(b) Office of the Secretariat (Public reading area with copying
facilities available). * * *
(2) Terms and conditions of proposed contracts.
(3) Registered entity filings relating to rules as defined in
Sec. 40.1 of this chapter, unless covered by a request for
confidential treatment.
* * * * *
(13) Publicly available portions of applications to become a
registered entity including the transmittal letter, proposed rules,
proposed bylaws, corporate documents, any overview or similar
summary provided by the applicant, any documents pertaining to the
applicant's legal status and governance structure, including
governance fitness information, and any other part of the
application not covered by a request for confidential treatment.
* * * * *
15. Appendix B to part 145 is amended by revising paragraphs
(a)(1), (a)(2), (a)(3), (a)(5), (a)(6) and (b) to read as follows:
Appendix B to Part 145--Schedule of Fees
(a) * * *
(1) $4.75 for each quarter hour spent by clerical personnel in
searching for or reviewing records.
(2) When a search or review cannot be performed by clerical
personnel, $10.25 for each quarter hour spent by professional
personnel in searching or reviewing records.
(3) When searches require the expertise of a computer
specialist, staff time for programming and performing searches will
be charged at $10.25 per quarter hour. For searches of records
stored on personal computers used as workstations by Commission
staff and shared access network servers, the computer processing
time is included in the search time for the staff member using the
workstation as set forth in paragraph (a) of this appendix.
* * * * *
(5) For copies of materials other than paper records, the
requester will be charged the actual cost of materials and
reproduction, including the time of clerical personnel at a rate of
$4.75 per quarter hour.
(6) When a request has been made and granted to examine
Commission records at an office of the Commission other than the
office in which the records are routinely maintained, the requester:
(i) Will reimburse the Commission for the actual cost of
transporting the records; and
(ii) Will be charged at a rate of $4.75 for each quarter hour
spent by clerical personnel in preparing the records for transit.
* * * * *
(b) Waiver or reduction of fees. Fees will be waived or reduced
by the Commission if:
(1) The fee is less than or equal to $10.00, the approximate
cost to the Commission of collecting the fee; or,
(2) If the Commission determines that the disclosure of the
information is likely to
[[Page 44988]]
contribute significantly to public understanding of the operations
or activities of the government and is not primarily in the
commercial interest of the requester.
* * * * *
16. Appendix D to part 145 is removed.
Issued in Washington, DC, on July 21, 2004, by the Commission.
Jean A. Webb,
Secretary of the Commission.
[FR Doc. 04-17051 Filed 7-27-04; 8:45 am]
BILLING CODE 6351-01-P