FR Doc E9-25183[Federal Register: October 20, 2009 (Volume 74, Number 201)]
[Notices]
[Page 53724-53728]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr20oc09-41]
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COMMODITY FUTURES TRADING COMMISSION
Notice of Intent, Pursuant to the Authority in Section 2(h)(7) of
the Commodity Exchange Act and Commission Rule 36.3(c)(3), To Undertake
a Determination Whether the (1) Phys, BS, LD1 (US/MM), AB-NIT Contract,
et al., Offered for Trading on the Natural Gas Exchange, Inc., Perform
Significant Price Discovery Functions
AGENCY: Commodity Futures Trading Commission.
ACTION: Notice of action and request for comment.
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SUMMARY: The Commodity Futures Trading Commission (``CFTC'' or
``Commission'') is undertaking a review to determine whether the (1)
Phys,\1\ BS,\2\
[[Page 53725]]
LD1 \3\ (US/MM), AB-NIT \4\ (``Alberta Basis''); (2) Phys, BS, LD1 (US/
MM), Union-Dawn \5\ (``Union-Dawn Basis''); (3) Phys, FP,\6\ (CA/
GJ),\7\ AB-NIT (``Alberta Fixed-Price''); (4) Phys, FP, (US/MM), Union-
Dawn (``Union-Dawn Fixed-Price''); and (5) Phys, ID,\8\ 7a \9\ (CA/GJ),
AB-NIT (``Alberta Index'') contracts, offered for trading on the
Natural Gas Exchange, Inc. (``NGX''), an exempt commercial market
(``ECM'') under Sections 2(h)(3)-(5) of the Commodity Exchange Act
(``CEA'' or the ``Act''), perform significant price discovery
functions. Authority for this action is found in section 2(h)(7) of the
CEA and Commission rule 36.3(c) promulgated thereunder. In connection
with this evaluation, the Commission invites comment from interested
parties.
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\1\ The acronym ``Phys'' indicates physical delivery of natural
gas.
\2\ The acronym ``BS'' indicates that the contract is a cash-
settled basis swap.
\3\ The acronym ``LD1'' indicates the final settlement price of
the New York Mercantile Exchange (NYMEX) physically-delivered Henry
Hub Natural Gas futures contract for the corresponding contract
month, which is expressed in US dollars and cents per million
British thermal units (mmBtu).
\4\ The acronym ``AB-NIT'' refers to the Alberta, Canada, and
Nova Inventory Transfer hub.
\5\ ``Union-Dawn'' refers to the Union Gas, Ltd.'s, Dawn hub,
which is located in Canada across the U.S. border from Detroit,
Michigan.
\6\ The acronym ``FP'' refers to fixed-price contracts.
\7\ The abbreviation CA/GJ refers the Canadian dollars per
gigajoule, which is a unit of measure for energy. One GJ is equal to
0.9478 mmBtu.
\8\ The acronym ``ID'' refers to index contracts.
\9\ The term ``7a'' refers to a price index that is computed as
a volume-weighted average of transactions that occur on the NGX
trading platform during a particular calendar month. Such
transactions specify the physical delivery of natural gas at the AB-
NIT hub in the following calendar month.
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DATES: Comments must be received on or before November 4, 2009.
ADDRESSES: Comments may be submitted by any of the following methods:
Follow the instructions for submitting comments. Federal
eRulemaking Portal: http://www.regulations.gov.
E-mail: [email protected]. Include Phys, BS, LD1 (US/MM),
AB-NIT (``Alberta Basis'') Contract; Phys, BS, LD1 (US/MM), Union-Dawn
(``Union-Dawn Basis'') Contract; Phys, FP, (CA/GJ), AB-NIT (``Alberta
Fixed-Price'') Contract; Phys, FP, (US/MM), Union-Dawn (``Union-Dawn
Fixed-Price'') Contract; and/or Phys, ID, 7a (CA/GJ), AB-NIT (``Alberta
Index'') Contract in the subject line of the message, depending on the
subject contract(s) to which the comments apply.
Fax: (202) 418-5521
Mail: Send to David A. Stawick, Secretary, Commodity
Futures Trading Commission, Three Lafayette Centre, 1155 21st Street,
NW., Washington, DC 20581
Courier: Same as mail above.
All comments received will be posted without change to http://
www.CFTC.gov/.
FOR FURTHER INFORMATION CONTACT: Gregory K. Price, Industry Economist,
Division of Market Oversight, Commodity Futures Trading Commission,
Three Lafayette Centre, 1155 21st Street, NW., Washington, DC 20581.
Telephone: (202) 418-5515. E-mail: [email protected]; or Susan Nathan,
Senior Special Counsel, Division of Market Oversight, same address.
Telephone: (202) 418-5133. E-mail: [email protected].
SUPPLEMENTARY INFORMATION:
I. Introduction
On March 16, 2009, the CFTC promulgated final rules implementing
provisions of the CFTC Reauthorization Act of 2008 (``Reauthorization
Act'') \10\ which subjects ECMs with significant price discovery
contracts (``SPDCs'') to self-regulatory and reporting requirements, as
well as certain Commission oversight authorities, with respect to those
contracts. Among other things, these rules and rule amendments revise
the information-submission requirements applicable to ECMs, establish
procedures and standards by which the Commission will determine whether
an ECM contract performs a significant price discovery function, and
provide guidance with respect to compliance with nine statutory core
principles applicable to ECMs with SPDCs. These rules became effective
on April 22, 2009.
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\10\ 74 FR 12178 (Mar. 23, 2009); these rules became effective
on April 22, 2009.
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In determining whether an ECM's contract is or is not an SPDC, the
Commission will evaluate the contract's material liquidity, price
linkage to other contracts, potential for arbitrage with other
contracts traded on designated contract markets or derivatives
transaction execution facilities, use of the ECM contract's prices to
execute or settle other transactions, and other factors.
In order to facilitate the Commission's identification of possible
SPDCs, Commission rule 36.3(c)(2) requires that an ECM operating in
reliance on section 2(h)(3) promptly notify the Commission and provide
supporting information or data concerning any contract: (i) That
averaged five trades per day or more over the most recent calendar
quarter; and (ii) (A) for which the ECM sells price information
regarding the contract to market participants or industry publications;
or (B) whose daily closing or settlement prices on 95 percent or more
of the days in the most recent quarter were within 2.5 percent of the
contemporaneously determined closing, settlement, or other daily price
of another agreement.
II. Determination of an SPDC
A. The SPDC Determination Process
Commission rule 36.3(c)(3) establishes the procedures by which the
Commission makes and announces its determination on whether a specific
ECM contract serves a significant price discovery function. Under those
procedures, the Commission will publish a notice in the Federal
Register that it intends to undertake a determination as to whether the
specified agreement, contract, or transaction performs a significant
price discovery function and to receive written data, views, and
arguments relevant to its determination from the ECM and other
interested persons.\11\ After prompt consideration of all relevant
information,\12\ the Commission will, within a reasonable period of
time after the close of the comment period, issue an order explaining
its determination. Following the issuance of an order by the Commission
that the ECM executes or trades an agreement, contract, or transaction
that performs a significant price discovery function, the ECM must
demonstrate, with respect to that agreement, contract, or transaction,
compliance with the core principles under section 2(h)(7)(C) of the CEA
\13\ and the applicable provisions of Part 36. If the Commission's
order represents the first time it has determined that one of the ECM's
contracts performs a significant price discovery function, the ECM must
submit a written demonstration of its compliance with the core
principles within 90 calendar days of the date of the Commission's
order. For each subsequent determination by the Commission that the ECM
has an additional SPDC, the
[[Page 53726]]
ECM must submit a written demonstration of its compliance with the core
principles within 30 calendar days of the Commission's order.
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\11\ The Commission may commence this process on its own
initiative or on the basis of information provided to it by an ECM
pursuant to the notification provisions of Commission rule
36.3(c)(2).
\12\ Where appropriate, the Commission may choose to interview
market participants regarding their impressions of a particular
contract. Further, while they may not provide direct evidentiary
support with respect to a particular contract, the Commission may
rely for background and context on resources such as its October
2007 Report on the Oversight of Trading on Regulated Futures
Exchanges and Exempt Commercial Markets (``ECM Study''). http://
www.cftc.gov/stellent/groups/public/@newsroom/documents/file/pr5403-
07_ecmreport.pdf.
\13\ 7 U.S.C. 2(h)(7)(C).
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B. Phys, BS, LD1 (US/MM), AB-NIT Contract
The Alberta Basis contract is a monthly contract that calls for
physical delivery of natural gas based on the final settlement price
for NYMEX's Henry Hub physically-delivered natural gas futures contract
for the specified calendar month, plus or minus the price differential
(basis) between the Alberta delivery point \14\ and the Henry Hub.
There is no standard size for the Alberta Basis contract, although a
minimum volume of 100 mmBtu is required in increments of 100 units per
day. The Alberta Basis contract is listed for 60 consecutive calendar
months.
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\14\ NOVA Gas Transmission, Ltd., owns the natural gas
transmission infrastructure known as the Alberta System. The Alberta
System is a network comprising 14,100 miles of pipeline that gathers
natural gas for use both in Alberta and for delivery to provincial
border points for export to North American markets. The Alberta
System is one of the largest natural gas transmission systems in
North America and gathers 66 percent of natural gas produced in
Western Canada.
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Based upon a required quarterly notification filed on August 25,
2009 (mandatory under Rule 36.3(c)(2)), the NGX reported that, with
respect to its Alberta Basis contract, the average number of trades
each day for the nearby contract month was 23.2 in the second quarter
of 2009. During the same period, the Alberta Basis nearby contract had
an average daily trading volume of 5,869,800 million British thermal
units (mmBtu).\15\ Moreover, the net open interest as of June 30, 2009,
for the nearby contract month was 150,213,600 mmBtu. For delivery two
months out, the open interest was 10,112,200 mmBtu.
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\15\ For comparative purposes, the size of the NYMEX's
physically-delivered Henry Hub natural gas futures contract is
10,000 mmBtu.
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It appears that the Alberta Basis contract may satisfy the material
liquidity, price linkage, and material price reference factors for SPDC
determination. With respect to material liquidity, trading in the
Alberta Basis contract was nearly 6,000,000 mmBtu on a daily basis,
with more than 20 separate transactions each day. In addition, the open
interest in the subject contract was substantial. In regard to price
linkage, the final settlement of the Alberta Basis contract is based,
in part, on the final settlement price of the NYMEX's physically-
delivered natural gas futures contract, where the NYMEX is registered
with the Commission as a designated contract market (``DCM'').
With respect to material price reference, the NGX forged an
alliance with the IntercontinentalExchange, Inc., (ICE) to use the
ICE's matching engine to complete transactions in physical gas
contracts traded on NGX. In return, the NGX agreed to provide the
clearing services for such transactions. As part of the agreement, NGX
provides the ICE with transaction data, which are then made available
to market participants on a paid basis. The ICE offers the NGX data in
several packages, which vary in terms of the amount of available
historical data. For example, the ICE offers the ``OTC Gas End of Day''
data packages with access to all historical data, or the option of
accessing 12, 24, 36, and 48 months of past data only.
C. Phys, BS, LD1 (US/MM), Union-Dawn Contract
The Union-Dawn Basis contract is a monthly contract that calls for
physical delivery of natural gas based on the final settlement price
for NYMEX's Henry Hub physically-delivered natural gas futures contract
for the specified calendar month, plus or minus the price differential
(basis) between the Dawn delivery point \16\ and the Henry Hub. There
is no standard size for the Union-Dawn Basis contract, although a
minimum volume of 100 mmBtu is required in increments of 100 units per
day. The Union-Dawn Basis contract is listed for 60 consecutive
calendar months.
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\16\ Union Gas, Ltd., is a major Canadian natural gas storage,
transmission, and distribution company based in Ontario, Canada.
Union Gas offers premium storage and transportation services to
customers at the Dawn hub, which the largest underground storage
facility in Canada and one of the largest in North America. The Dawn
hub offers customers an important link for natural gas moving from
Western Canadian and U.S. supply basins to markets in central Canada
and the northeast United States.
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Based upon a required quarterly notification filed on August 25,
2009 (mandatory under Rule 36.3(c)(2)), the NGX reported that, with
respect to its Union-Dawn Basis contract, the average number of trades
each day for the nearby contract month was 8.3 in the second quarter of
2009. During the same period, the Union-Dawn Basis nearby contract had
an average daily trading volume of 1,332,400 mmBtu. Moreover, the net
open interest as of June 30, 2009, for the nearby contract month was
28,203,800 mmBtu. For delivery two months out, the open interest was
12,908,400 mmBtu.
It appears that the Union-Dawn Basis contract may satisfy the
material liquidity, price linkage, and material price reference factors
for SPDC determination. With respect to material liquidity, trading in
the Union-Dawn Basis contract was more than 1,000,000 mmBtu on a daily
basis, with more than eight separate transactions each day. In
addition, the open interest in the subject contract was substantial. In
regard to price linkage, the final settlement of the Union-Dawn Basis
contract is based, in part, on the final settlement price of the
NYMEX's physically-delivered natural gas futures contract, where the
NYMEX is registered with the Commission as a designated contract market
(``DCM'').
With respect to material price reference, the NGX forged an
alliance with the IntercontinentalExchange, Inc., (ICE) to use the
ICE's matching engine to complete transactions in physical gas
contracts traded on NGX. In return, the NGX agreed to provide the
clearing services for such transactions. As part of the agreement, NGX
provides the ICE with transaction data, which are then made available
to market participants on a paid basis. The ICE offers the NGX data in
several packages, which vary in terms of the amount of available
historical data. For example, the ICE offers the ``OTC Gas End of Day''
data packages with access to all historical data, or the option of
accessing 12, 24, 36, and 48 months of past data only.
D. Phys, FP, (CA/GJ), AB-NIT Contract
The Alberta Fixed-Price contract calls for physical delivery of
natural gas over a number of different time periods. This contract
allows delivery of natural gas during the following day, Friday plus
two or three days, Saturday plus three or four days, Sunday plus two
days, the remainder of the month, throughout the nearby calendar month,
and during a specific future calendar month. Each delivery period is
considered to be a separate contract, and market participants value
each delivery period separately. However, overlapping delivery days are
considered fungible, and, thus, may be offset by traders. There is no
standard size for the Alberta Fixed-Priced contract, although a minimum
volume of 94.78 mmBtu is required in increments of 100 units per day.
The NGX lists the Alberta Fixed-Price contract for 60 calendar months.
Based upon a required quarterly notification filed on August 25,
2009 (mandatory under Rule 36.3(c)(2)), the NGX reported that, with
respect to its Alberta Fixed-Price contract, the average number of
trades daily for each delivery period was greater than five in the
second quarter of 2009. In this regard, the average number of trades
each day was 122.1, 36.0, 7.0, 30.1, 7.4, 68.6, and 12.8 trades for the
following delivery periods--following day, Friday plus two days, Friday
plus three days, Saturday
[[Page 53727]]
plus three days, Saturday plus four days, Sunday plus two days,
remainder of the month, nearby calendar month, and any single future
calendar month, respectively. During the same period, the Alberta
Fixed-Price contract had an average daily trading volume of 1,209,505
mmBtu; 821,565 mmBtu; 223,874 mmBtu; 754,175 mmBtu; 672,568 mmBtu;
6,634,030 mmBtu; and 1,233,958 mmBtu for the following delivery
periods--next day, Friday plus two days, Friday plus three days,
Saturday plus three days, Saturday plus four days, Sunday plus two
days, remainder of the month, nearby calendar month, and any single
future calendar month, respectively. Moreover, the net open interest as
of June 30, 2009, was 96,003,450 mmBtu for next-month delivery. For
delivery two months out, the open interest was 54,456,997 mmBtu.\17\
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\17\ The open interest for other delivery periods was
significantly smaller than for the nearby and second-nearby
contracts.
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It appears that the Alberta Fixed-Price contract may satisfy the
material liquidity and material price reference factors for SPDC
determination. With respect to material liquidity, trading in the
nearby month of the Alberta Fixed-Price contract was close to 7,000,000
mmBtu on a daily basis, with nearly 70 separate transactions each day.
In addition, the open interest in the subject contract was substantial.
With respect to material price reference, the NGX forged an
alliance with the IntercontinentalExchange, Inc., (ICE) to use the
ICE's matching engine to complete transactions in physical gas
contracts traded on NGX. In return, the NGX agreed to provide the
clearing services for such transactions. As part of the agreement, NGX
provides the ICE with transaction data, which are then made available
to market participants on a paid basis. The ICE offers the NGX data in
several packages, which vary in terms of the amount of available
historical data. For example, the ICE offers the ``OTC Gas End of Day''
data packages with access to all historical data, or the option of
accessing 12, 24, 36, and 48 months of past data only.
E. Phys, FP, (US/MM), Union-Dawn Contract
The Union-Dawn Fixed-Price contract calls for physical delivery of
natural gas over two different time periods: the following day and
Saturday plus three days. Each delivery period is considered to be a
separate contract, and the market participants value each delivery
period separately. However, overlapping delivery days are considered
fungible, and, thus, may be offset by traders. There is no standard
size for the Union-Dawn Fixed-Priced contract, although a minimum
volume of 100 mmBtu required in increments of 100 units per day. The
NGX lists the Union-Dawn Fixed-Price contract for 60 calendar months.
Based upon a required quarterly notification filed on August 25,
2009 (mandatory under Rule 36.3(c)(2)), the NGX reported that, with
respect to its Union-Dawn Fixed-Price contract, the average number of
trades each day was 114.1 trades and 23.9 trades for next-day delivery
and delivery Saturday plus the next three days, respectively. During
the same period, the Union-Dawn Fixed-Price contract had an average
daily trading volume of 812,800 mmBtu and 458,000 mmBtu for the
delivery periods next day and Saturday plus three days, respectively.
Moreover, the net open interest as of June 30, 2009, was 2,241,600
mmBtu for next-day delivery.
It appears that the Union-Dawn Fixed-Price contract may satisfy the
material liquidity and material price reference factors for SPDC
determination. With respect to material liquidity, trading activity in
the next-day Union-Dawn Fixed-Price contract was over 800,000 mmBtu on
a daily basis, with over 100 separate transactions each day. In
addition, the open interest in the subject contract was substantial.
With respect to material price reference, the NGX forged an
alliance with the IntercontinentalExchange, Inc., (ICE) to use the
ICE's matching engine to complete transactions in physical gas
contracts traded on NGX. In return, the NGX agreed to provide the
clearing services for such transactions. As part of the agreement, NGX
provides the ICE with transaction data, which are then made available
to market participants on a paid basis. The ICE offers the NGX data in
several packages, which vary in terms of the amount of available
historical data. For example, the ICE offers the ``OTC Gas End of Day''
data packages with access to all historical data, or the option of
accessing 12, 24, 36, and 48 months of past data only.
F. Phys, ID, 7a (CA/GJ), AB-NIT Contract
The Alberta Index contract calls for physical delivery of natural
gas during the specified calendar month. When trading this contract,
market participants price the difference between the anticipated value
of natural gas at the time of delivery and the average of actual trades
on the NGX system. The average of transactions on the NGX system is
reported as a volume-weighted average price index in the first
publication of the delivery month of Canadian Enerdata, Ltd.'s Canadian
Gas Price Reporter. At the time of delivery, the negotiated price
premium or discount is added or subtracted to the published index
price. There is no standard size for the Alberta Index contract,
although a minimum volume of 94.78 mmBtu is required in increments of
100 units per day. The NGX lists the Alberta Index contract for 60
calendar months.
Based upon a required quarterly notification filed on August 25,
2009 (mandatory under Rule 36.3(c)(2)), the NGX reported that, with
respect to its Alberta Index contract, the average number of trades
each day was 10.9. During the same period, the Alberta Index contract
had an average daily trading volume of 2,438,627 mmBtu. Moreover, the
net open interest as of June 30, 2009, was 6,287,794 mmBtu for delivery
in the following month.
It appears that the Alberta Index contract may satisfy the material
liquidity and material price reference factors for SPDC determination.
With respect to material liquidity, trading in the nearby month of the
Alberta Index contract was over 2,000,000 mmBtu on a daily basis, with
over 10 separate transactions each day. In addition, the open interest
in the subject contract was substantial.
With respect to material price reference, the NGX forged an
alliance with the IntercontinentalExchange, Inc., (ICE) to use the
ICE's matching engine to complete transactions in physical gas
contracts traded on NGX. In return, the NGX agreed to provide the
clearing services for such transactions. As part of the agreement, NGX
provides the ICE with transaction data, which are then made available
to market participants on a paid basis. The ICE offers the NGX data in
several packages, which vary in terms of the amount of available
historical data. For example, the ICE offers the ``OTC Gas End of Day''
data packages with access to all historical data, or the option of
accessing 12, 24, 36, and 48 months of past data only.
III. Request for Comment
In evaluating whether an ECM's agreement, contract, or transaction
performs a significant price discovery function, section 2(h)(7) of the
CEA directs the Commission to consider, as appropriate, four specific
criteria: price linkage, arbitrage, material price reference, and
material liquidity. As it explained in Appendix A to the Part 36
rules,\18\ the Commission, in making
[[Page 53728]]
SPDC determinations, will apply and weigh each factor, as appropriate,
to the specific contract and circumstances under consideration.
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\18\ 17 CFR Part 36, Appendix A.
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As part of its evaluation, the Commission will consider the written
data, views, and arguments from any ECM that lists the potential SPDC
and from any other interested parties. Accordingly, the Commission
requests comment on whether the subject contracts perform significant
price discovery functions. Commenters' attention is directed
particularly to Appendix A of the Commission's Part 36 rules for a
detailed discussion of the factors relevant to a SPDC determination.
The Commission notes that comments which analyze the contracts in terms
of these factors will be especially helpful to the determination
process. In order to determine the relevance of comments received, the
Commission requests that commenters explain in what capacity are they
knowledgeable about one or several of the subject contracts. Moreover,
because five contracts are included in this notice, it is important
that commenters identify to which contract(s) their comments apply.
IV. Related Matters
A. Paperwork Reduction Act
The Paperwork Reduction Act of 1995 (``PRA'') \19\ imposes certain
requirements on federal agencies, including the Commission, in
connection with their conducting or sponsoring any collection of
information, as defined by the PRA. Certain provisions of final
Commission rule 36.3 impose new regulatory and reporting requirements
on ECMs, resulting in information collection requirements within the
meaning of the PRA; OMB previously has approved and assigned OMB
control number 3038-0060 to this collection of information.
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\19\ 44 U.S.C. 3507(d).
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B. Cost-Benefit Analysis
Section 15(a) of the CEA \20\ requires the Commission to consider
the costs and benefits of its actions before issuing an order under the
Act. By its terms, section 15(a) does not require the Commission to
quantify the costs and benefits of such an order or to determine
whether the benefits of such an order outweigh its costs; rather, it
requires that the Commission ``consider'' the costs and benefits of its
action. Section 15(a) further specifies that the costs and benefits
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.
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\20\ 7 U.S.C.19(a).
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The bulk of the costs imposed by the requirements of Commission
Rule 36.3 relate to significant and increased information-submission
and reporting requirements adopted in response to the Reauthorization
Act's directive that the Commission take an active role in determining
whether contracts listed by ECMs qualify as SPDCs. The enhanced
requirements for ECMs will permit the Commission to acquire the
information it needs to discharge its newly-mandated responsibilities
and to ensure that ECMs with SPDCs are identified as entities with the
elevated status of registered entity under the CEA and are in
compliance with the statutory terms of the core principles of section
2(h)(7)(C) of the Act. The primary benefit to the public is to enable
the Commission to discharge its statutory obligation to monitor for the
presence of SPDCs and extend its oversight to the trading of SPDCs.
Issued in Washington, DC, on October 14, 2009 by the Commission.
David A. Stawick,
Secretary of the Commission.
[FR Doc. E9-25183 Filed 10-19-09; 8:45 am]
BILLING CODE 6351-01-P
Last Updated: October 20, 2009