[Federal Register: November 26, 1999 (Volume 64, Number 227)]
[Rules and Regulations]
[Page 66373-66381]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr26no99-10]
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COMMODITY FUTURES TRADING COMMISSION
17 CFR Part 5
RIN 3038-AB42
Revised Procedures for Listing New Contracts
AGENCY: Commodity Futures Trading Commission.
ACTION: Final rules.
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SUMMARY: The Commodity Futures Trading Commission (Commission) is
adopting a final rule permitting exchanges to list contracts for
trading without Commission approval. In response to continued
expressions of industry concern that the ability to list new contracts
for trading without delay is vital to the exchanges' continued
competitiveness, the Commission proposed a two-year pilot program to
permit the listing of contracts for trading prior to Commission
approval. 64 FR 40528 (July 27, 1999). Based upon the comments
received, the Commission is modifying the proposed rule to permit
exchanges to list commodity futures or option contracts for trading
without Commission approval of the contract or its terms and
conditions, including any subsequent amendments thereto. This new
listing procedure is an alternative to regular or fast-track procedures
for contract market designation. To meet its statutory mission of
ensuring market integrity and customer protection, the Commission will
place greater reliance on its existing oversight authorities to
disapprove, alter or supplement exchange rules or to take emergency
action, as appropriate. The Commission also is making a number of
technical changes to the rule, as suggested by the comments.
In a companion release published elsewhere in this edition of the
Federal Register, the Commission is proposing to permit all exchange
rules and rule amendments to be made effective without Commission
approval. As part of that proposed rulemaking, the Commission will seek
comment on whether the new procedure for listing contracts for trading
without approval which the Commission is adopting herein should become
the exclusive means of offering new exchange products and amending
their terms and conditions. In a second companion notice in this issue
of the Federal Register, the Commission is also proposing to delete
fees for applications for contract market designation in order to
remove any economic disincentive for using regular or fast-track review
procedures.
EFFECTIVE DATE: January 25, 2000.
FOR FURTHER INFORMATION CONTACT: Paul M. Architzel, Chief Counsel,
Division of Economic Analysis, Commodity Futures Trading Commission,
Three Lafayette Centre, 1155 21st Street, N.W., Washington, D.C. 20581,
(202) 418-5260, or electronically, [[email protected]].
SUPPLEMENTARY INFORMATION:
[[Page 66374]]
I. The Proposed Rules
The Commission recently proposed rules to enable boards of trade to
list for trading new contracts \1\ without any waiting period. 64 FR
40528 (July 27, 1999). This proposal responded to testimony of
representatives of U.S. exchanges that the ability to list contracts
more quickly than currently possible is necessary for them to meet
competitive challenges by foreign exchanges.\2\ The proposed rule,
pursuant to the Commission's 4(c) exemptive authority, provided that
boards of trade already designated as a contract market in one
commodity could list new contracts for trading while their application
for designation in the contract was pending approval. Thus, the
proposed rules responded to the need for immediacy in listing new
contracts within the current statutory framework which requires that
the Commission designate boards of trade as a contract market in a
commodity and that the Commission approve that contract's terms and
conditions.\3\
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\1\ However, the Commission proposed that contracts subject to
the accord provision of section 2(a)(1)(B) of the Commodity Exchange
Act (Act) not be eligible for this relief, consistent with the
provisions of section 4(c) of the Act.
\2\ During hearings before the Subcommittee on Risk Management
and Specialty Crops of the House Committee on Agriculture,
representatives of four U.S. futures exchanges testified that the
current regulatory structure is overly burdensome and that statutory
changes are necessary to achieve ``parity'' with foreign exchanges
and to better enable U.S. exchanges to compete in the growing global
marketplace. CFTC Reauthorization: Hearings Before the Subcommittee
on Risk Management and Specialty Crops of the House Committee on
Agriculture, 106th Cong., 1st Sess. (1999). See, statements of the
Chicago Board of Trade, the Board of Trade of the City of New York,
the Chicago Mercantile Exchange, and the New York Mercantile
Exchange (NYMEX).
In particular, the U.S. exchanges urged Congress to eliminate
the requirement that the Commission review and approve new contracts
before they begin trading and amendments to exchange rules before
they can be implemented. For example, Daniel Rappaport, Chairman of
the Board of Directors of NYMEX testified that, ``detailed CFTC
review and approval of the specific terms and conditions of the
contract has not been necessary, provides marginal, if any value,
and adds cost, uncertainty, and delay to the roll-out of new
contracts.''
\3\ As the Commission noted, although the contracts during that
initial listing period would not have been designated, they would
have been designated subsequently using the current procedures,
including fast-track review. During the initial review period, the
contracts would have been valid and enforceable pursuant to the
Commission's rule which was proposed under the Commission's
exemptive authority. Id. at 40531.
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Specifically, the proposed rule would have required boards of trade
to file a contract's terms and conditions with the Commission by close
of business on the business day prior to, and an application for
contract market designation within forty-five days of, initially
listing a contract for trading. Boards of trade would have been
permitted to list and maintain up to a full year's trading months prior
to designation. Finally, they would have been required to identify the
contract as listed pending Commission designation, to enforce the
contract's terms and conditions, and to fulfill all of a contract
market's self-regulatory obligations during the period prior to its
designation as a contract market in that commodity. The proposed rule
also provided that while a designation application submitted under
regular or fast track procedures was pending, a second exchange could
not list the same, or a substantially similar, contract to trade under
the rule, nor could the listing procedure be used to evade an adverse
Commission proceeding involving the same or a substantially similar
contract.\4\
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\4\ Accordingly, where the Commission has initiated a proceeding
to alter an exchange rule under section 8a(7) of the Act, to
disapprove a proposed or existing contract term or condition under
section 5a(a)(12) of the Act, to alter or change delivery points or
commodity or locational differentials under section 5a(a)(10) of the
Act or to disapprove an application for designation or suspend a
designation under section 6 of the Act, or any similar adverse
action, an exchange could not list a ``new'' contract for trading
and thereby frustrate the proceeding against, or evade application
of the Commission's process applicable to, the original, designated
contract market.
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II. Comments Received
Seven entities commented on the proposed rule-- five futures
exchanges, a futures industry association and an association
representing commodity merchandisers.\5\ The exchanges generally
commented that the proposed rule did not provide sufficient relief.
They unanimously opposed the Commission designating a contract after it
has been listed for trading, advocating instead that the Commission
limit its role to disapproving a new contract or requiring its terms to
be amended. They also opposed limiting to one year the trading months
that initially could be listed and the Commission characterizing the
proposed rule's implementation as a ``pilot program.'' One commenter
supported the proposal. The comments are discussed in greater detail
below.
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\5\ The thirty-day comment period closed on August 26, 1999.
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Based on its administrative experience and in response to the
comments received, the Commission is adopting a final rule permitting
exchanges to list contracts for trading pursuant to exchange
certification, and without prior Commission approval. As one exchange
commenter noted, ``contract approval, while arguably useful in an era
before exchanges had developed [sophisticated] * * * self-regulatory
systems and procedures,'' is no longer necessary. New York Board of
Trade (NYBOT) comment letter at 3. The Commission agrees that it can,
and should, place greater reliance on the exchanges' role as self-
regulatory organizations, particularly in connection with their
decisions to list new products for trading.
As the NYBOT points out, commodity futures and option exchanges
over the years have developed increasingly sophisticated self-
regulatory mechanisms and procedures to keep pace with the changing
nature of the products which they offer. During that time, the
Commission has kept pace with those changes by periodically updating
the requirements for an application for contract market designation and
its processing procedures.\6\ Based on that experience, the Commission
is confident that commodity futures and option exchanges stand ready to
assume greater responsibility for ensuring that their new products meet
the applicable statutory and regulatory requirements. The Commission is
equally assured that the exchanges will return that confidence through
their cooperative response to the Commission's efforts to exercise
greater oversight authority and to decrease its direct regulation.
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\6\ See, Guideline No. 1, 17 CFR Part 5, Appendix A, and 17 CFR
5.1 (fast-track designation procedures.)
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III. The Final Rule
A. Legal Certainty
All of the commenters opposing the proposed rule cited the need for
increased legal certainty. Several, such as the Chicago Mercantile
Exchange (CME) and the New York Mercantile Exchange (NYMEX) opposed
implementation of the rule as a two-year pilot program. They reasoned
that a pilot program created undue uncertainty because there was no
assurance that the rule would be continued or expanded at the end of
the initial two-year period. NYMEX additionally observed that ``the
Commission has not provided guidance on how it would evaluate the pilot
program.'' \7\ In order to provide greater legal certainty to the
market, the Commission is promulgating the rule for
[[Page 66375]]
an unlimited duration and not as a pilot program.
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\7\ NYMEX comment letter at p. 3. NYMEX also suggested that the
Notice of Proposed Rulemaking's description of certain benefits of
Commission review of exchange rules with no ``original assessment''
of the costs of that review called into question the Commission's
commitment to its proposed pilot program.'' The Commission
disagrees. The proposed rule on its face either reduced or did not
increase regulatory costs.
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All of the exchanges opposed the proposed rule's requirement that
boards of trade submit to the Commission an application for contract
market designation within forty-five days of listing a contract to
trade. The CME reasoned that the possibility that the Commission might
``disapprove the contract or require its terms to be amended * * * is
likely to discourage market participants from trading the new
contract.'' CME comment letter at 4. The Chicago Board of Trade (CBT)
objected that,
the Commission is expressly retaining the requirement of
Commission review of contract terms, along with the concomitant
authority to disapprove or require changes to the contract terms,
post-listing. The risk that contract terms could change by
Commission fiat during a post listing review period will discourage
market use of any contract listed under the pilot program.
CBT comment letter at 2. NYMEX concluded that ``uncertainty regarding
whether or not a pending application for designation would be approved
or denied, or perhaps modified from the original filing under terms
dictated to an exchange by the CFTC, could continue for a whole year.''
\8\ NYMEX comment letter at 3. The exchanges therefore concluded that
the proposed rule would better serve their competitive needs by
permitting them to ``list new contracts without Commission approval-not
``pending'' such approval.'' NYBOT comment letter at 2.
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\8\ NYMEX's conclusion regarding the relative degree and length
of any such uncertainty is based upon the assumption that the
Commission would take the entire statutorily-provided time for the
post-listing review and designation of new contracts. However,
nothing in either the fast-track or the proposed rule would have
precluded use of the Commission's fast track procedures (17 CFR
5.1), which provide either a ten or forty-five day review period.
Moreover, the fast-track rule empowers exchanges to request that, if
the Commission terminates fast track review, it either approve the
contract as submitted or initiate disapproval proceedings.
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The Commission, in response to the comments, is modifying the rule
as proposed to replace the requirement that boards of trade submit for
Commission review and approval an application for contract market
designation within forty-five days of listing a contract. Instead,
boards of trade only will be required to certify that the contract
listed for trading meets the requirements of the Commodity Exchange Act
and the Commission's rules thereunder. This certification must be filed
along with the contract's terms and conditions no later than the close
of business of the business day preceding the contract's listing. The
exchange's certification that the contract meets the statutory and
regulatory requirements is in lieu of the otherwise required
application for contract market designation and the Commission's review
and approval of the application and of the contract's terms. Under the
final rule, contracts may be listed for trading indefinitely in
reliance on the exchange's certification; \9\ and as discussed below
the Commission generally will not review and approve the contract's
terms under section 5a(a)(12) of the Act and Commission rule 1.41.
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\9\ The exchanges also commented that the proposed limitation of
delivery months which could be listed prior to designation to one
rolling year would discourage trading in contracts listed under the
rule. The final rule includes no limitation on the listing of
distant trading months.
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The exchange commenters also objected to the proposed requirement
that they notify the public on all public references to the contract or
its trading months that the contract is trading pending Commission
designation. The CBT stated that, according to certain market users,
highlighting the revised terms for deferred contract months in its
soybean oil contract as ``pending Commission approval'' ``discouraged
calendar spread trading'' and that ``even though open interest began to
slowly increase while [it] * * * waited for final Commission action,
that growth was slower than anticipated.'' \10\ CBT comment letter at
2. The NYMEX concurred, stating that ``uncertainty regarding whether or
not a pending application for designation would be approved or denied *
* * could continue for a whole year,'' and ``during that period * * * a
board of trade would have a continuing duty to notify the public * * *
that the contract was trading pending Commission designation.'' NYMEX
comment at 3.
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\10\ The CBT amendments to the soybean contract raised a number
of potential issues under U.S. antitrust laws which the Commission,
under section 15 of the Act, was obliged to consider in approving
the rule. In addition, the Commission found it necessary to amass a
sizeable administrative record to determine the relative merit of
the claims of non-members of the exchange opposed to the CBT's
amendment.
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However, as long as boards of trade have available two means of
listing contracts, either by self-certification or Commission approval,
the public has a right to know the legal status of a contract. The
final rule clarifies that this public notice obligation is satisfied
through an appropriate reference in the board of trade's rule book and
includes other conforming changes. Accordingly, the Commission is
adopting as final a requirement that the board of trade identify the
contract in its rules as ``listed for trading pursuant to exchange
certification.''
Two commenters suggested that trading in contracts listed pursuant
to the rule would be discouraged without greater legal certainty that a
subsequent Commission finding disapproving or altering a contract term
would not also invalidate open contracts. As the Futures Industry
Association (FIA) noted:
although the Commission states in the Federal Register release
accompanying the proposed rule that any contract listed under the
revised procedures would be valid and enforceable pending approval,
the proposed rule itself is silent on this issue. Without such
certainty, the enforceability of any contract subsequently
determined to be in violation of the Act would also be open to
question.
FIA comment letter at 2. The NYBOT concurred in this view. NYBOT
comment letter at 3. Others informally have expressed the view that the
applicability of the Act would be uncertain legally unless contracts
which are ``listed pursuant to exchange certification'' were also
deemed to be ``designated contract markets'' under the Act. The final
rule addresses both of these concerns.
The final rule, in response to these comments, explicitly preserves
the validity and enforceability of contracts listed pursuant to
exchange certification despite a possible violation of the rule by the
listing board of trade. For example, if a board of trade incorrectly
certifies that the terms of a contract that it is listing for trading
do not violate the Act, it will be subject to Commission remedial
action for that violation. However, the individual contracts that have
been traded are valid and enforceable nonetheless.\11\ The Commission
in the final rule also has made explicit that all sections of the Act
and Commission rules which refer to ``designated contract markets'' are
applicable to contracts listed for trading pursuant to rule 5.3.\12\
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\11\ Similarly, although the Commission found that the CBT corn
and soybean futures contract markets violated the provisions of
section 5a(a)(10) of the Act, the individual contracts traded were
valid, enforceable contracts.
\12\ Compare, 17 CFR 33.2.
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Accordingly, in exempting boards of trade from the designation and
rule approval requirements of the Act, the Commission is not thereby
ceding any of its broad oversight authorities over designated contract
markets. These include, among others, its authority to disapprove,
alter or supplement contract
[[Page 66376]]
rules under sections 5a(a)(12) \13\ and 8a(7) \14\ of the Act and its
section 8a(9) authority to direct a contract market to take action in
market emergencies.\15\ The Commission has used these authorities
sparingly in the past.\16\ In light of the futures exchanges' steadfast
commitment to fulfilling their self-regulatory responsibilities, the
Commission anticipates that despite the absence of its affirmative
prior review of exchange contracts and rules, such adverse actions will
continue to be infrequent.\17\
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\13\ Section 5a(a)(12) of the Act provides in part that: ``the
Commission shall disapprove, after appropriate notice and
opportunity for hearing, any such rule which the Commission
determines at any time to be in violation of the provisions of this
Act or the regulations of the Commission. If the Commission
institutes proceedings to determine whether a rule should be
disapproved pursuant to this paragraph, it shall provide the
contract market with written notice of the proposed grounds for
disapproval, including the specific sections of this Act or the
Commission's regulations which would be violated. At the conclusion
of such proceedings, the Commission shall approve or disapprove such
rule. Any disapproval shall specify the sections of this Act or the
Commission's regulations which the Commission determines such rule
has violated or, if effective, would violate.'' The Commission is
not waiving in any way its authority under section 5a(a)(12) to
disapprove ``at any time'' a rule of a contract which has been
listed for trading pursuant to this exemption.
\14\ Section 8(a)(7) of the Act provides in part that the
Commission is authorized: ``to alter or supplement the rules of a
contract market insofar as necessary or appropriate by rule or
regulation or by order, if after making the appropriate request in
writing to a contract market that such contract market effect on its
own behalf specified changes in its rules and practices, and after
appropriate notice and opportunity for hearing, the Commission
determines that such contract market has not made the changes so
required, and that such changes are necessary or appropriate for the
protection of persons producing, handling, processing, or consuming
any commodity traded for future delivery on such contract market, or
the product or byproduct thereof, or for the protection of traders
or to insure fair dealing in commodities traded for future delivery
on such contract market. Such rules, regulations, or orders may
specify changes with respect to such matters as--
(A) terms or conditions in contracts of sale to be executed on
or subject to the rules of such contract market; (B) the form or
manner of execution of purchases and sales for future delivery; (C)
other trading requirements, excepting the setting of levels of
margin; (D) safeguards with respect to the financial responsibility
of members; (E) the manner, method, and place of soliciting
business, including the content of such solicitations; and (F) the
form and manner of handling, recording, and accounting for
customers' orders, transactions, and account; The Commission is not
in any way waiving its authority to alter, supplement or amend a
rule of a contract that has been listed for trading pursuant to this
exemption.
\15\ Section 8a(9) of the Act provides in part that the
Commission is authorized: ``to direct the contract market, whenever
it has reason to believe that an emergency exists, to take such
action as in the Commission's judgment is necessary to maintain or
restore orderly trading in or liquidation of any futures contract,
including, but not limited to, the setting of temporary emergency
margin levels on any futures contract, and the fixing of limits that
may apply to a market position acquired in good faith prior to the
effective date of the Commission's action.'' The Commission is not
in any way waiving its authority to declare a market emergency in a
contract which has been listed for trading pursuant to this
exemption and to order appropriate remedial measures.
\16\ The CME maintains that a new standard for rule disapproval
is necessary. It suggests that an exchange rule be subject to
disapproval only when the rule ``is likely to cause fraud, render
trading readily susceptible to manipulation, or threaten the
financial integrity of the market.'' CME comment at 6. However,
under section 5a(a)(12) of the Act, exchange rules are subject to
disapproval if they are in ``violation of the provisions of this Act
or the regulations of the Commission.'' This standard is far less
ambiguous than the one proposed by the CME. Moreover, in light of
the limited number of times that the Commission has in fact
instituted a proceeding to disapprove or alter a rule, the CME's
fear that the Act's current disapproval standard has been, or is,
subject to overuse, is misplaced. Moreover, the CME points to the
Commission's process for approving an increase to the tick size of
the E-Mini S&P 500 contract as an example of Commission
micromanagement and why a new standard for disapproval is warranted.
Reliance on that example is also misplaced. The Commission's review
and request for public comment was triggered by section 15 of the
Act and the potential anti-trust implications of increasing the
contract's tick size. However, if a contract is not submitted for
Commission approval, potential anti-trust issues involving its terms
and conditions generally would not be considered by the Commission.
\17\ Section 8c(a)(1) of the Act provides the Commission with
the authority to discipline directly any exchange member if the
exchange, as the self-regulator, fails to act. The Commission is not
waiving this oversight authority in any way.
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B. Approval of Contract Terms and Conditions
Currently, the Commission approves a contract's initial terms and
conditions under section 5a(a)(12) of the Act and Commission rule 1.41
when it issues an Order designating a board of trade as a contract
market in that commodity. The Commission also reviews and approves all
amendments to the contract's terms and conditions. As proposed, rule
5.3 would have preserved this framework by requiring the exchange to
file an application for designation after the contract initially was
listed for trading. Filing an application for designation would have
triggered the Commission's authority to review and approve the
contract's terms and conditions as well as any subsequent amendments.
64 FR at 40532.
As modified, the final rule permits a board of trade indefinitely
to list a contract for trading under its provisions. Accordingly, the
final rule does not require that an application for contract market
designation be submitted to the Commission. Consistent with that
provision, a contract listed pursuant to the rule will not have its
initial terms and conditions approved by the Commission.\18\
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\18\ However, the Commission on its own initiative and in its
sole discretion may review and approve certain exchange rules, such
as exchange speculative position limits, when Commission approval
would be in the public interest. The Commission is empowered under
section 4a(5) of the Act to enforce exchange speculative position
limits which it has ``approved.'' This authority is an important
enforcement tool in cases where the violation is by a non-member of
an exchange. Accordingly, the Commission may determine to approve
some, or all, of the speculative position limits of contracts
trading pursuant to this rule. Commission review and approval of
such an exchange rule, however, would require no action by, and
place no burden on, the board of trade.
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However, as the Commission noted in the Notice of Proposed
Rulemaking, contract amendments may raise additional issues for
Commission review, such as their potential
impact on open positions. They may affect the economic utility
of contracts. Moreover, exchange rule changes may be the subject of
divergent interests or, potentially, conflicts of interest at an
exchange or raise broad public policy issues * * *.
64 FR 40528. Nevertheless, the exchange commenters suggested that
amendments to contract terms and conditions be accorded the same
treatment as newly listed contracts. As the NYBOT stated, ``if a new
contract can be listed without prior approval, then rules that relate
to contract terms and conditions, amendments thereto, and any other
rules should likewise be allowed to become effective immediately upon
filing with the Commission. NYBOT Comment letter at 4.
The Commission is modifying the final rule to permit boards of
trade to amend the terms of a contract listed for trading by exchange
certification on the same conditions that apply to its initial listing.
As proposed, all contract terms and conditions would have been subject
to Commission review and approval soon after the contract's initial
listing. The proposed requirement that the Commission also approve
contract amendments was consistent with that framework. However,
because under the final rule a contract's initial terms no longer will
be approved by the Commission, significant public confusion would ensue
were the Commission to retain authority to approve contract amendments.
That inconsistency could result in Commission approval of only the
amendments to a contract term, but not of the underlying exchange rule
itself. Moreover, had the Commission in the final rule retained the
proposed requirement that contract amendments be subject to Commission
pre-approval while initial contract terms were not, simply listing an
amended contract as a
[[Page 66377]]
new one would provide a ready means to bypass the requirement.\19\
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\19\ It is not unusual for contract markets currently to list
for simultaneous trading an ``A'' and a ``B'' contract when
substantial amendments to a contract's terms have been made and the
board of trade wishes to list nearby trading months with the amended
contract terms.
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Accordingly, the Commission is modifying the final rule from the
rule as proposed to make consistent the regulatory treatment and status
of the contract's initial terms and any amendments thereto. Thus, the
final rule provides that the text of a contract amendment be submitted
to the Commission by close of business of the business day preceding
its being implemented. The board of trade must also submit its
certification that the rule amendment does not violate and is not
inconsistent with any provisions of the Commodity Exchange Act or the
rules thereunder.\20\
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\20\ Proposed rule 5.3 (c) provided that boards of trade must
enforce each bylaw, rule, regulation and resolution that relates to
the terms or conditions of a contract listed for trading under the
rule. This is to make operative section 5a(8) of the Act which
requires each contract market to enforce its rules which have been
approved by the Commission, which have become effective under
section 5a(a)(12) of the Act or which ``must be enforced pursuant to
any commission rule. * * *'' As self-regulatory organizations,
boards of trade are expected to follow, be bound by, and to enforce
their rules. This provision requires that boards of trade trading
contracts pursuant to this rule adhere to this high standard. No
comments specifically discussed this provision and the Commission is
adopting it as final.
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In addition, the final rule requires that amendments to the terms
and conditions of contracts trading pursuant to exchange certification
be implemented only for contract months having no open interest. That
implementation practice generally has been required by the Commission
when reviewing proposed exchange rules for its approval to provide
traders with legal certainty regarding the contract's terms and
conditions.\21\ Even in the absence of rule 5.3 so requiring, boards of
trade would adhere to this practice. As the NYBOT observed, ``any
changes to terms and conditions * * * should be made effective only
with respect to contract months in which there is no open interest.
This is consistent with the approach taken by the exchanges today, and
endorsed by the Commission, when amendments which affect terms and
conditions are introduced to existing contracts.'' NYBOT comment at 3.
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\21\ The Commission has approved contract amendments for
implementation in trading months with open interest only where
implementation of the proposed rule change would not affect the
value of existing positions or traders had notice of the impending
change prior to opening their positions.
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This exemption from the requirement of prior Commission approval
applies only to the amendment of contracts that are traded pursuant to
rule 5.3. In a companion notice being published in this edition of the
Federal Register, the Commission is proposing a similar exemption for
amendments to the rules of a designated contract market. That Notice of
Proposed Rulemaking raises two issues that also are applicable to these
final rules. First, should the exemption specifically require that
contract amendments be implemented only in delivery months with no open
interest at the time the rule is made effective? Secondly, to reduce
public confusion, should the Commission withdraw the availability of
designation of new contracts under regular and fast-track procedures
and of Commission approval of exchange rules and rule changes and make
the rule 5.3 procedure the sole means of listing new contracts and
amending their terms? The Commission is also proposing by separate
notice in this edition of the Federal Register, to delete application
fees for contract market designation. If the Commission determines to
retain regular and fast-track designation procedures as alternative
methods to rule 5.3 for introducing new products, retaining fees for
contract market designation would operate as a disincentive to their
use.
C. Conditions
The proposed rule included a number of qualifying conditions for
boards of trade and the contracts to be listed thereunder. The
Commission proposed that a qualifying board of trade must be designated
as a contract market in at least one other non-dormant contract. The
CME concurred with the proposed requirement that a board of trade
already be a designated contract market in one non-dormant contract,
noting that:
start up exchanges are not appropriate candidates for the
proposed pilot program because the initial designation of a board of
trade as a contract market entails a more lengthy review and
analysis of its trading and clearing systems and its self-regulatory
programs. This restriction makes sense, and we support it.
CME comment letter at 3. The Commission is adopting this provision as
final without modification.
In addition, the Commission proposed that a contract not be
eligible for immediate listing under the rule if it is the same or
substantially the same as one for which an application for contract
designation is pending before the Commission. As it explained in the
Notice of Proposed Rulemaking, the proposed restriction on listing
contracts which are the same as contracts pending before the Commission
for contract market designation and approval of their terms and
conditions is necessary in order to avoid a ``competing exchange [from]
* * * short-circuit[ing] the review process and to disadvantage the
exchange choosing to subject a proposed contract to prior Commission
review.'' 64 FR at 40531. The Commission concluded that such a use of
the proposed listing procedure would have been ``an unwarranted
competitive use of the proposed rule.'' Id. The Minneapolis Grain
Exchange (MGE) agreed that the ``proposed rule adequately prevents
attempts by exchanges to use the * * * pilot program to jump ahead of
an exchange submitting the same or similar contract under regular or
fast track procedures.'' MGE comment letter at 2.
The CME opposed the proposal. It reasoned that an exchange which is
lagging in developing a new product ``could file an application for
contract market designation under the regular or fast track procedures,
thereby preventing the exchange that is ready to list the new product
sooner from using the pilot procedure to exploit its timing
advantage.'' CME comment letter at 4-5. However, as the Commission
pointed out in the notice,
exchanges would not be able to use this proposed rule to
forestall a competitor from introducing a new contract * * *.
[N]othing would prevent the second exchange from filing an
application for review and approval by the Commission on its own
merits.
64 FR 40531, n. 19. Presumably were the second exchange really further
along in developing a new contract, it would retain its timing
advantage by being the first approved, while the exchange, which had
filed an incomplete application preemptively, continued its contract
development.\22\ Accordingly, the Commission is adopting the provision
as proposed. If in practice the rule is subject to the ``competitive
gamesmanship'' postulated by the CME, the Commission will propose
deleting it.\23\
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\22\ In this regard, fast-track approval procedures are
available only for applications for contract market designation
which are not amended once filed.
\23\ The CME also suggests that the language of the proposed
rule be modified to make clear that ``an exchange is not prevented
from using the pilot procedure to expedite listing a new contract
even though it had originally submitted the same contract to the
CFTC for pre-approval under the regular or fast track procedures.''
CME comment letter at 4. Nothing in the Act or Commission rules
prevents an exchange from withdrawing an application for contract
market designation at any time. Accordingly, an exchange could have
simply withdrawn its application for contract market designation and
listed the contract under the rule as proposed. Nevertheless, the
Commission is making explicit in the rule that this limitation
applies only to a board of trade other than the one with the pending
application. Of course, an exchange which abandons a pending
application for contract market designation in favor of listing
without Commission approval must be able to make the required
certification taking into consideration any adverse information
arising during consideration of the application. Moreover, in order
to conserve its resources, the Commission may determine not to
continue processing an application for contract market designation
if it is listed for trading while the application is pending.
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[[Page 66378]]
The Commission also proposed that rule 5.3 not be able to be used
``as a means of evading an adverse Commission proceeding involving the
same or a substantially similar contract.'' 64 FR 40531. As the
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Commission explained in the Notice of Proposed Rulemaking:
Accordingly, where the Commission has initiated a proceeding to
alter an exchange rule under section 8a(7) of the Act, to disapprove
a proposed or existing contract term or condition under section
5a(a)(12) of the Act, to alter or change delivery points or
commodity or locational differentials under section 5a(a)(10) of the
Act or to disapprove an application for designation or suspend a
designation under section 6 of the Act, or any similar adverse
action, an exchange could not list a ``new'' contract for trading
and thereby frustrate the proceeding against, or evade application
of the Commission's process applicable to the original, designated
contract.
Id. One commenter, the MGE, discussed this provision, noting that it
``believes the Commission's proposed rule adequately prevents attempts
by exchanges to use the predesignation listing to evade an adverse
Commission proceeding involving the same or similar contract * * * .''
The Commission is adopting the limitation as proposed, and notes that
it applies to all boards of trade, not just to the respondent in the
adverse action.\24\
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\24\ This limitation applies to all boards of trade because the
Commission presumes that no exchange could make the required
certification for a new contract with the same terms and conditions
as one against which the Commission has initiated an adverse action.
However, a competing exchange would not be estopped from listing a
contract for the same commodity but which did not include the
allegedly violative terms or conditions. On the other hand, the
respondent exchange might be precluded from doing so if listing the
revised contract were determined to be an attempt to frustrate the
prosecution of the adverse action or in violation of a Commission
Order issued in the course of the adverse action.
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Finally, rule 5.3 as proposed would not apply to futures contracts
on stock indexes, commodities which are subject to the specific
approval procedures of the Johnson-Shad jurisdictional accord.\25\ That
limitation is statutory in origin and is adopted as proposed.
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\25\ See, section 2(a)(1)(B) of the Act.
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IV. Section 4(c) Findings
Commission rule 5.3 was proposed under section 4(c) of the Act,
which grants the Commission broad exemptive authority. In proposing
rule 5.3, the Commission found that
because the proposed rule applies to contracts listed on
designated exchanges subject to the self-regulatory requirements of
the Act, * * * all traders are ``appropriate'' for application of
this proposed exemptive rule. Moreover, for the reasons explained
above, the Commission believes that the proposed rule would be
consistent with the public interest and would not have a material
adverse effect on the ability of the Commission to discharge its
regulatory responsibilities or of any contract market to discharge
its self-regulatory responsibilities under the Act.
64 FR 40532. The Commission specifically requested comment on its
findings.
The CME and the CBT both objected that the Commission should not
apply the exemptive criteria of section 4(c)(2) of the Act because in
their view, ``the standards of Section 4(c)(1) apply to exemptive
relief for existing exchanges with contract designation in place.'' CBT
comment letter at n.1; See also, CME comment letter at n.1. However,
section 4(c)(2) of the Act provides that the Commission shall grant an
exemption from the requirements of section 4(a) of the Act only if
certain specified conditions are met. Section 4 (a)(1) of the Act
provides that to be lawful, transactions must be ``conducted on or
subject to the rules of a board of trade which has been designated by
the Commission as a `contract market' for such commodity.'' 7 U.S.C.
6(a)(1) (emphasis added). Rule 5.3 exempts boards of trade from that
designation requirement. Thus, an exemption under section 4(c)(2) of
the Act is necessary and its criteria for exemption must be satisfied
for futures contracts to be lawfully traded on a board of trade
pursuant to rule 5.3 without Commission designation in that
commodity.\26\ The Commission in the Notice of Proposed Rulemaking
found that proposed rule 5.3 met the criteria for exemption.\27\
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\26\ For administrative convenience, the Commission treats
separately traded contracts for the same generic commodity with
differing terms and conditions and pricing characteristics as
separate commodities for purposes of contract market designation.
See, Part 5, Appendix A, 64 FR 29221 (June 1, 1999).
\27\ Section 4(c)(2) of the Act provides that: The Commission
shall not grant any exemption under paragraph (1) from any of the
requirements of subsection (a) unless the Commission determines
that--(A) the requirement should not be applied to the agreement,
contract, or transaction for which the exemption is sought and that
the exemption would be consistent with the public interest and the
purposes of this Act; and (B) the agreement, contract, or
transaction--(i) will be entered into solely between appropriate
persons; and (ii) will not have a material adverse effect on the
ability of the Commission or any contract market to discharge its
regulatory or self-regulatory duties under this Act.
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The FIA disagreed with the Commission's findings that the proposed
rule met those criteria. It concluded that because the proposed rule
``would create both practical and legal uncertainty with respect to any
contract listed under the revised procedures * * * [it] question[s]
whether adoption of the proposed rule `would be consistent with the
public interest.' '' FIA comment letter 1. The Commission has addressed
the basis for FIA's questioning whether adoption of the proposed rule
would be in the public interest by modifying the final rule as
recommended by FIA and the other commenters.
The Commission's section 4(c) findings were based, in part, on
proposed rule 5.3's provision that, after having been listed for
trading, contracts were required to be designated and their terms and
conditions approved by the Commission. The Commission noted that
proposed rule 5.3 would have preserved the public interest in
Commission approval of new contracts and of contract amendments. That
interest, it explained, arose because ``appropriate contract design is
the best deterrent to market manipulation, price distortion or market
congestion * * *. [C]ontract approval assures that contracts meet these
widely-accepted design criteria.'' 64 FR 40530. The Commission further
noted, however, that the proposed rule was ``consistent with the spirit
of the Act's provision which contemplates that in certain instances
exchanges may make proposed rules effective pending Commission
action.'' 64 FR 40531.
The exchange commenters disagreed that there was a public interest
in Commission designation of contracts and approval of their terms and
conditions. The NYBOT countered that:
An effective market surveillance system is the best way to avoid
such market situations. Therefore, to us it is most important that
an exchange has a self-regulatory track record to ensure that
trading will be conducted in a fair and orderly manner. We believe
the sophisticated systems developed over decades of experience,
coupled with the oversight provided by the Commission, have proven
to be exceptionally effective in identifying and dealing with the
types of market situations which the Commission
[[Page 66379]]
seeks to protect against. This track record strongly suggests that
contract approval, while arguably useful in an era before exchanges
had developed these self-regulatory systems and procedures, no
longer serves any positive purpose.
NYBOT comment letter at 3. The CME concurred, stating that it did not
agree with the premise that ``in-depth CFTC review of new contract
applications serves an important public purpose by providing an
opportunity for public comment and by improving contract design.'' The
CME explained that it agrees with those objectives, ``has a strong
business interest in designing its contracts so that they are not
readily susceptible to manipulation'' and in developing contracts
``talks with commercial users.'' CME comment letter at 3. NYMEX argued
that:
in view of the powerful economic forces that drive exchanges to
be thorough and vigilant in developing a new product, the Commission
should be confident in allowing exchanges to list contracts for
trading and implement rules without detailed prior review. In this
regard, NYMEX finds it significant that * * * British exchanges are
not currently subject to a preapproval process for their contracts
and rules.
NYMEX comment letter at 4; But see, ``Futures Exchange and Contract
Authorization Standards and Procedures in Selected Countries,''
Office of International Affairs, Commodity Futures Trading
Commission, August 3, 1999.
The Commission agrees with the exchanges that a strong self-
regulatory program and an effective market surveillance system are
necessary to remedy adverse market situations and to deter potential
manipulators. However, it is generally accepted that appropriate
contract design is a key component of an effective market surveillance
system.\28\ In this regard, exchanges have a strong business incentive
to design contracts that will not be susceptible to manipulation.\29\
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\28\ The view that appropriate contract design is an important
component of a market surveillance program and deters manipulation,
price distortion and market congestion is widely accepted
internationally. See, the Tokyo Communique on Supervision of
Commodity Futures Markets issued at the Tokyo Commodity Futures
Markets Regulators' Conference on October 31, 1997.
\29\ One commenter, the National Grain and Feed Association,
supported proposed rule 5.3, in part, because ``industry groups will
still have an opportunity to comment during the formal approval
process.'' The final rule no longer provides a formal opportunity
for comment by industry groups. However, the exchanges have assured
the Commission that it is their practice to seek out such views when
designing their contracts. Moreover, the Commission will continue to
provide a forum for industry groups to make their views known to it
regarding the terms and conditions of all contracts, including newly
listed contracts.
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Prior to the 1974 amendments to the Act, the statutory scheme did
not require the Commodity Exchange Authority, the Commission's
predecessor agency, to approve in advance the trading of all new
futures contracts,\30\ nor did it require agency approval of exchange
rules before they became effective. Rather, exchange rules amending the
terms and conditions of futures contracts were subject only to
disapproval after becoming effective.\31\ The prior approval
requirements were included in the 1974 amendments to the Act as one of
a number of measures to strengthen federal regulatory oversight of the
futures industry. These measures included the Commission's authority
under section 8a(7) of the Act to alter or amend contract market rules
and its section 8a(9) emergency authority.
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\30\ Prior to 1974, the Act defined ``commodity'' by specific
enumeration. Accordingly, new contracts that were not so enumerated
were unregulated. The definition of commodity periodically would be
updated to include additional commodities in which trading had
commenced on those exchanges which traded other regulated contracts.
For example, livestock and livestock products were added to the
Act's definition of ``commodity'' as part of the 1968 amendments to
the Act, after such contracts had already begun trading on the
Chicago Mercantile Exchange. Pub. L. No. 90-258 Sec. 1(a), 49 Stat.
1491 (1968). Other futures exchanges, including the Commodity
Exchange, Inc. and the former Coffee and Sugar, and the Cocoa
exchanges, operated wholly outside of the regulatory scheme.
\31\ See, Pub. L. No. 90-258, Sec. 23, 82 Stat. 33 (1968).
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The exchanges argue forcefully that their ability to counter
competition from foreign exchanges requires that the Commission rely
less on its prior-approval authority. They argue that the ability to
list contracts without Commission approval is central to their ability
to meet foreign competition. To date, relatively few contracts traded
on foreign exchanges directly compete with contracts traded on U.S.
exchanges, and for those that do, few, if any, U.S. contracts have been
displaced by a foreign competitor.\32\ Nevertheless, the Commission
believes that, consistent with its mandate to protect market integrity,
financial integrity, guard against market manipulation and protect
customers, it should ensure that the regulatory scheme not
unnecessarily impede the exchanges from competing. By this rulemaking,
the Commission is exercising its mandate flexibly to accomplish those
goals.
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\32\ See, ``The Global Competitiveness of U.S. Futures Markets
Revisited,'' Report of the Division of Economic Analysis to the
Commodity Futures Trading Commission (October, 1999).
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The public interest in the integrity and fairness of the futures
markets can be achieved through greater reliance by the Commission on
its surveillance and enforcement authorities. As the exchanges
recognize, the Commission has available to it strong oversight
authorities over boards of trade and their contracts without approving
an application for contract market designation and the contract's
terms. As one exchange noted, ``by letting such an exchange list new
contracts without Commission approval * * * the CFTC would not have
lost oversight authority over the exchange or its contracts.'' NYBOT
comment letter at 2. The CBT observed that, ``eliminating the
requirement of Commission approval of new contracts would not affect
the Commission's general authority over a contract's terms and
conditions.'' CBT comment letter at 3.
For the reasons explained above, the Commission believes that rule
5.3 is consistent with the public interest and would not have a
material adverse effect on the ability of the Commission to discharge
its regulatory responsibilities or of any contract market to discharge
its self-regulatory responsibilities under the Act. Moreover, because
the rule applies to contracts listed on exchanges subject to the self-
regulatory requirements of the Act, the Commission finds all traders
are ``appropriate'' for application of this exemptive rule under
section 4(c) of the Act.
V. Related Matters
A. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA), 5 U.S.C. 601 et seq.,
requires that agencies, in promulgating rules, consider the impact of
these rules on small entities. The Commission has previously determined
that contract markets are not ``small entities'' for purposes of the
RFA, 5 U.S.C. 601 et seq. 47 FR 18618 (April 30, 1982). These final
amendments permit exchanges under section 4(c) of the Act to list new
contracts for trading without designation as a contract market in that
contract. Accordingly, the Chairman, on behalf of the Commission,
hereby certifies, pursuant to 5 U.S.C. 605(b), that the action taken
herein will not have a significant economic impact on a substantial
number of small entities.
B. Paperwork Reduction Act
Guideline No. 1 (17 CFR Part 5 Appendix A), which sets forth the
requirements for applications for contract designation, contains
information collection requirements. As required by the PRA of 1995
(Pub. L. 104-13 (May 13, 1996)), the Commission submitted a copy of the
proposed rule to the Office of Management and Budget (OMB) for its
review (44 U.S.C. 3504(h)) and indicated that there was no implication
[[Page 66380]]
for the paperwork burden. Based on the comments the Commission received
in response to the proposed rulemaking, the Commission is revising the
paperwork burden associated with the new rule as reflected below.
OMB previously approved the collection of information related to
this rule as information collection 3038-0022, Regulations Pertaining
to the Responsibilities of Contract Markets and Their Members. The
final rule adopted by the Commission, which has been submitted to OMB
for approval, has the following paperwork burden:
Number of respondents: 11.
Estimated average hours per response: 29.
Frequency of response: On occasion.
Number of responses per year: 11.
Annual reporting burden: 319.
This represents a reduction of 1073 burden hours based on the
Commission's estimation of the number of contract market designation
applications that would no longer be submitted under regular or fast-
track procedures. Persons wishing to comment on the paperwork burden
contained in the final rules may contact the Desk Officer, CFTC, Office
of Management and Budget, Room 10202, NEOB, Washington, DC 20503, (202)
395-7340. 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.
List of Subjects in 17 CFR Part 5
Commodity futures, Contract markets, Designation application,
Reporting and recordkeeping requirements.
In consideration of the foregoing, and pursuant to the authority
contained in the Commodity Exchange Act and, in particular, sections 4,
4c, 5, 5a, 6 and 8a thereof, 7 U.S.C. 6, 6c, 7, 7a, 8, and 12a, the
Commission hereby amends Chapter I of Title 17 of the Code of Federal
Regulations as follows:
PART 5--CONTRACT MARKET COMPLIANCE
1. The authority citation for Part 5 is revised to read as follows:
Authority: 7 U.S.C. 6(c), 6c, 7, 7a, 8 and 12a.
2. Part 5 is amended by adding a new Sec. 5.3 to read as follows:
Sec. 5.3 Listing contracts for trading by exchange certification.
(a) Notwithstanding the provisions of section 4(a)(1) of the Act or
Sec. 33.2 of this chapter, a board of trade may list for trading
contracts of sale of a commodity for future delivery or commodity
option contracts, if the board of trade:
(1) Is designated under sections 4c, 5, 5a(a) and 6 of the Act as a
contract market in at least one commodity which is not dormant within
the meaning of Sec. 5.2 of this part;
(2) In connection with the trading of the contract complies with
all requirements of the Act and Commission regulations thereunder
applicable to designated contract markets, except for the requirement
under section 5a(a)(12) of the Act and Sec. 1.41(b) of this chapter
that the terms and conditions of the contract be approved by the
Commission;
(3) Files with the Commission at its Washington, D.C., headquarters
and the regional office having jurisdiction over it a copy of the
contract's initial terms and conditions and a certification by the
board of trade that the contract's initial terms and conditions neither
violate nor are inconsistent with any provision of the Commodity
Exchange Act or of the rules thereunder, and the filing is received no
later than the close of business of the business day preceding the
contract's initial listing;
(4) Files with the Commission at its Washington, D.C., headquarters
and the regional office having jurisdiction over it the text of each
amendment to the contract terms and conditions (with deletions in
brackets and additions underscored), a brief explanation of the
amendment including a description of any substantive opposing views by
members of the board of trade or others and a certification by the
board of trade that the amendment neither violates nor is inconsistent
with any provision of the Commodity Exchange Act or of the rules
thereunder, and the filing is received no later than the close of
business of the business day preceding the amendment's implementation;
(5) Implements amendments to the contract terms and conditions only
in trading months having no open interest at the time of
implementation; and
(6) Identifies the contract in its rules as listed for trading
pursuant to exchange certification.
(b) The board of trade must enforce each bylaw, rule, regulation
and resolution that relates to the terms or conditions of a contract
listed for trading under this section.
(c) Contracts listed for trading pursuant to this section shall not
be void or voidable as a result of:
(1) A violation by the board of trade of the provisions of this
section; or
(2) Any Commission proceeding to disapprove designation under
section 6 of the Act, to disapprove a term or condition under section
5a(a)(12) of the Act, to alter or supplement a term or condition under
section 8a(7) of the Act, to amend the contract's terms or conditions
under section 5a(a)(10) of the Act, to declare an emergency under
section 8a(9) of the Act, or any other proceeding the effect of which
is to disapprove, alter, supplement, or require a contract market to
adopt a specific term or condition, trading rule or procedure, or to
take or refrain from taking a specific action.
(d) Except as specified in paragraph (a) of this section and unless
the context otherwise requires, the board of trade listing contracts,
and the contracts listed, for trading under this section shall be
subject to all of the provisions of the Act and Commission regulations
thereunder which are applicable to a ``board of trade,'' ``board of
trade licensed by the Commission,'' ``exchange,'' ``contract market,''
``designated contract market,'' or ``contract market designated by the
Commission'' as though those provisions were set forth in this section
and included specific reference to contracts listed for trading
pursuant to this section.
(e) The provisions of this section shall not apply to :
(1) A contract subject to the provisions of section 2(a)(1)(B) of
the Act;
(2) A contract to be listed initially for trading that is the same
or substantially the same as one for which an application for contract
market designation under sections 4c, 5, 5a and 6 of the Act or
Sec. 5.1 of this part already was filed for Commission approval by
another board of trade while the application is pending before the
Commission;
(3) A contract to be listed initially for trading that is the same
or substantially the same as one which is the subject of a pending
Commission proceeding to disapprove designation under section 6 of the
Act, to disapprove a term or condition under section 5a(a)(12) of the
Act, to alter or supplement a term or condition under section 8a(7) of
the Act, to amend terms or conditions under section 5a(a)(10) of the
Act, to declare an emergency under section 8a(9) of the Act, or to any
other proceeding the effect of which is to disapprove, alter,
supplement, or require a contract market to adopt a specific term or
condition, trading rule or procedure, or to take or refrain from taking
a specific action.
[[Page 66381]]
Issued in Washington, DC, this 17th day of November, 1999, by
the Commodity Futures Trading Commission.
Jean A. Webb,
Secretary of the Commission.
[FR Doc. 99-30510 Filed 11-24-99; 8:45 am]
BILLING CODE 6351-01-P
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