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2010-10324

  • FR Doc 2010-10324[Federal Register: May 5, 2010 (Volume 75, Number 86)]

    [Notices]

    [Page 24655-24662]

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

    [DOCID:fr05my10-61]

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    COMMODITY FUTURES TRADING COMMISSION

    Order Finding That the ICE Waha Financial Basis Contract Traded

    on the IntercontinentalExchange, Inc., Performs a Significant Price

    Discovery Function

    AGENCY: Commodity Futures Trading Commission.

    ACTION: Final order.

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    SUMMARY: On October 9, 2009, the Commodity Futures Trading Commission

    (``CFTC'' or ``Commission'') published for comment in the Federal

    Register \1\ a notice of its intent to undertake a determination

    whether the Waha Financial Basis (``WAH'') contract, traded on the

    IntercontinentalExchange, Inc. (``ICE''), an exempt commercial market

    (``ECM'') under sections 2(h)(3)-(5) of the Commodity Exchange Act

    (``CEA'' or the ``Act''), performs a significant price discovery

    function pursuant to section 2(h)(7) of the CEA. The Commission

    undertook this review based upon an initial evaluation of information

    and data provided by ICE as well as other available information. The

    Commission has reviewed the entire record in this matter, including all

    comments received, and has determined to issue an order finding that

    the WAH contract performs a significant price discovery function.

    Authority for this action is found in section 2(h)(7) of the CEA and

    Commission rule 36.3(c) promulgated thereunder.

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    \1\ 74 FR 52202 (October 9, 2009).

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    DATES: Effective Date: April 28, 2010.

    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: gprice@cftc.gov; or Susan Nathan,

    Senior Special Counsel, Division of Market Oversight, same address.

    Telephone: (202) 418-5133. E-mail: snathan@cftc.gov.

    SUPPLEMENTARY INFORMATION:

    I. Introduction

    The CFTC Reauthorization Act of 2008 (``Reauthorization Act'') \2\

    significantly broadened the CFTC's regulatory authority with respect to

    ECMs by creating, in section 2(h)(7) of the CEA, a new regulatory

    category--ECMs on which significant price discovery contracts

    (``SPDCs'') are traded--and treating ECMs in that category as

    registered entities under the CEA.\3\ The legislation authorizes the

    CFTC to designate an agreement, contract or transaction as a SPDC if

    the Commission determines, under criteria established in section

    2(h)(7), that it performs a significant price discovery function. When

    the Commission makes such a determination, the ECM on which the SPDC is

    traded must assume, with respect to that contract, all the

    responsibilities and obligations of a registered entity under the Act

    and Commission regulations, and must comply with nine core principles

    established by new section 2(h)(7)(C).

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    \2\ Incorporated as Title XIII of the Food, Conservation and

    Energy Act of 2008, Public Law 110-246, 122 Stat. 1624 (June 18,

    2008).

    \3\ 7 U.S.C. 1a(29).

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    On March 16, 2009, the CFTC promulgated final rules implementing

    the provisions of the Reauthorization Act.\4\ As relevant here, rule

    36.3 imposes increased information reporting requirements on ECMs to

    assist the Commission in making prompt assessments whether particular

    ECM contracts may be SPDCs. In addition to filing quarterly reports of

    its contracts, an ECM must notify the Commission promptly concerning

    any contract traded in reliance on the exemption in section 2(h)(3) of

    the CEA that averaged five trades per day or more over the most recent

    calendar quarter, and for which the exchange sells its price

    information regarding the contract to market participants or industry

    publications, or 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

    prices of another contract.

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    \4\ 74 FR 12178 (Mar. 23, 2009); these rules became effective on

    April 22, 2009.

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    Commission rule 36.3(c)(3) established the procedures by which the

    Commission makes and announces its determination whether a particular

    ECM contract serves a significant price discovery function. Under those

    procedures, the Commission will publish notice in the Federal Register

    that it intends to undertake an evaluation whether the specified

    agreement, contract or transaction performs a significant price

    discovery function and to receive written views, data and arguments

    relevant to its determination from the ECM and other interested

    persons. Upon the close of the comment period, the Commission will

    consider, among other things, all relevant information regarding the

    subject contract and issue an order announcing and explaining its

    determination whether or not the contract is a SPDC. The issuance of an

    affirmative order signals the effectiveness of the Commission's

    regulatory authorities over an ECM with respect to a SPDC; at that time

    such an ECM becomes subject to all provisions of the CEA applicable to

    registered entities.\5\ The issuance of such an order also triggers the

    obligations, requirements and timetables prescribed in Commission rule

    36.3(c)(4).\6\

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    \5\ Public Law 110-246 at 13203; Joint Explanatory Statement of

    the Committee of Conference, H.R. Rep. No. 110-627, 110 Cong., 2d

    Sess. 978, 986 (Conference Committee Report). See also 73 FR 75888,

    75894 (Dec. 12, 2008).

    \6\ For an initial SPDC, ECMs have a grace period of 90 calendar

    days from the issuance of a SPDC determination order to submit a

    written demonstration of compliance with the applicable core

    principles. For subsequent SPDCs, ECMs have a grace period of 30

    calendar days to demonstrate core principle compliance.

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    II. Notice of Intent to Undertake SPDC Determination

    On October 9, 2009, the Commission published in the Federal

    Register notice of its intent to undertake a determination whether the

    WAH contract performs a significant price discovery function, and

    requested comment from interested parties.\7\ Comments were received

    from the Industrial Energy Consumers of America (``IECA''), Working

    Group of Commercial Energy Firms (``WGCEF''), ICE, Platts, Economists

    Incorporated (``EI''), Federal Energy Regulatory Commission (``FERC''),

    and Financial Institutions

    [[Page 24656]]

    Energy Group (``FIEG'').\8\ The comment letters from FERC \9\ and

    Platts did not directly address the issue of whether or not the WAH

    contract is a SPDC; IECA concluded that the WAH contract is a SPDC, but

    did not provide a basis for its conclusion.\10\ The other parties'

    comments raised substantive issues with respect to the applicability of

    section 2(h)(7) to the WAH contract, generally asserting that the WAH

    contract is not a SPDC as it does not meet the material price

    reference, price linkage, and material liquidity criteria for SPDC

    determination. Those comments are more extensively discussed below, as

    applicable.

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    \7\ The Commission's Part 36 rules establish, among other

    things, procedures by which the Commission makes and announces its

    determination whether a specific ECM contract serves a significant

    price discovery function. Under those procedures, the Commission

    publishes a notice in the Federal Register that it intends to

    undertake a determination whether a 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.

    \8\ IECA describes itself as an ``association of leading

    manufacturing companies'' whose membership ``represents a diverse

    set of industries including: Plastics, cement, paper, food

    processing, brick, chemicals, fertilizer, insulation, steel, glass,

    industrial gases, pharmaceutical, aluminum and brewing.'' WGCEF

    describes itself as ``a diverse group of commercial firms in the

    domestic energy industry whose primary business activity is the

    physical delivery of one or more energy commodities to customers,

    including industrial, commercial and residential consumers'' and

    whose membership consists of ``energy producers, marketers and

    utilities.'' ICE is an ECM, as noted above. McGraw-Hill, through its

    division Platts, compiles and calculates monthly natural gas price

    indices from natural gas trade data submitted to Platts by energy

    marketers. Platts includes those price indices in its monthly Inside

    FERC's Gas Market Report (``Inside FERC''). EI is an economic

    consulting firm with offices located in Washington, DC, and San

    Francisco, CA. NGSA is an industry association comprised of natural

    gas producers and marketers. FERC is an independent Federal

    regulatory agency that, among other things, regulates the interstate

    transmission of natural gas, oil and electricity. FIEG describes

    itself as an association of investment and commercial banks who are

    active participants in various sectors of the natural gas markets,

    ``including acting as marketers, lenders, underwriters of debt and

    equity securities, and proprietary investors.'' The comment letters

    are available on the Commission's Web site: http://www.cftc.gov/

    lawandregulation/federalregister/federalregistercomments/2009/09-

    025.html.

    \9\ FERC stated that the WAH contract is cash settled and does

    not contemplate actual physical delivery of natural gas.

    Accordingly, FERC expressed the opinion that a determination by the

    Commission that a contract performs a significant price discovery

    function ``would not appear to conflict with FERC's exclusive

    jurisdiction under the Natural Gas Act (NGA) over certain sales of

    natural gas in interstate commerce for resale or with its other

    regulatory responsibilities under the NGA'' and further that, ``the

    FERC staff will continue to monitor for any such conflict * * *

    [and] advise the CFTC'' should any such potential conflict arise. CL

    07.

    \10\ IECA stated that the subject ICE contract should ``be

    required to come into compliance with core principles mandated by

    Section 2(h)(7) of the Act and with other statutory provisions

    applicable to registered entities. [This contract] should be subject

    to the Commission's position limit authority, emergency authority

    and large trader reporting requirements, among others.'' CL 01.

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    III. Section 2(h)(7) of the CEA

    The Commission is directed by section 2(h)(7) of the CEA to

    consider the following criteria in determining a contract's significant

    price discovery function:

    Price Linkage--the extent to which the agreement, contract

    or transaction uses or otherwise relies on a daily or final settlement

    price, or other major price parameter, of a contract or contracts

    listed for trading on or subject to the rules of a designated contract

    market (``DCM'') or derivatives transaction execution facility

    (``DTEF''), or a SPDC traded on an electronic trading facility, to

    value a position, transfer or convert a position, cash or financially

    settle a position, or close out a position.

    Arbitrage--the extent to which the price for the

    agreement, contract or transaction is sufficiently related to the price

    of a contract or contracts listed for trading on or subject to the

    rules of a DCM or DTEF, or a SPDC traded on or subject to the rules of

    an electronic trading facility, so as to permit market participants to

    effectively arbitrage between the markets by simultaneously maintaining

    positions or executing trades in the contracts on a frequent and

    recurring basis.

    Material price reference--the extent to which, on a

    frequent and recurring basis, bids, offers or transactions in a

    commodity are directly based on, or are determined by referencing or

    consulting, the prices generated by agreements, contracts or

    transactions being traded or executed on the electronic trading

    facility.

    Material liquidity--the extent to which the volume of

    agreements, contracts or transactions in a commodity being traded on

    the electronic trading facility is sufficient to have a material effect

    on other agreements, contracts or transactions listed for trading on or

    subject to the rules of a DCM, DTEF or electronic trading facility

    operating in reliance on the exemption in section 2(h)(3).

    Not all criteria must be present to support a determination that a

    particular contract performs a significant price discovery function,

    and one or more criteria may be inapplicable to a particular

    contract.\11\ Moreover, the statutory language neither prioritizes the

    criteria nor specifies the degree to which a SPDC must conform to the

    various criteria. In Guidance issued in connection with the Part 36

    rules governing ECMs with SPDCs, the Commission observed that these

    criteria do not lend themselves to a mechanical checklist or formulaic

    analysis. Accordingly, the Commission has indicated that in making its

    determinations it will consider the circumstances under which the

    presence of a particular criterion, or combination of criteria, would

    be sufficient to support a SPDC determination.\12\ For example, for

    contracts that are linked to other contracts or that may be arbitraged

    with other contracts, the Commission will consider whether the price of

    the potential SPDC moves in such harmony with the other contract that

    the two markets essentially become interchangeable. This co-movement of

    prices would be an indication that activity in the contract had reached

    a level sufficient for the contract to perform a significant price

    discovery function. In evaluating a contract's price discovery role as

    a price reference, the Commission will consider the extent to which, on

    a frequent and recurring basis, bids, offers or transactions are

    directly based on, or are determined by referencing, the prices

    established for the contract.

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    \11\ In its October 9, 2009, Federal Register release, the

    Commission identified material liquidity, material price reference

    and price linkage as the possible criteria for SPDC determination of

    the WAH contract. Arbitrage was not identified as a possible

    criterion and will not be discussed further in this document or the

    associated Order.

    \12\ 17 CFR part 36, Appendix A.

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    IV. Findings and Conclusions

    a. The Waha Financial Basis (WAH) Contract and the SPDC Indicia

    The WAH contract is cash settled based on the difference between

    the bidweek price index of natural gas at the Waha hub in western Texas

    for the month of delivery, as published in Platts' Inside FERC's Gas

    Market Report, and the final settlement price of the New York

    Mercantile Exchange's (``NYMEX's'') physically-delivered Henry Hub

    natural gas futures contract for the same calendar month. The Platts

    bidweek price, which is published monthly, is based on a survey of cash

    market traders who voluntarily report to Platts data on fixed-price

    transactions for physical delivery of natural gas at the Waha hub

    conducted during the last five business days of the month; such bidweek

    transactions specify the delivery of natural gas on a uniform basis

    throughout the following calendar month at the agreed upon rate.

    Platts' current policy is to use physical deals into interstate and

    intrastate pipelines at the outlet of the Waha header system and in the

    Waha vicinity in the Permian Basin in West Texas. Pipelines include El

    Paso Natural Gas, Transwestern Pipeline, Natural Gas Pipeline Co. of

    America, Northern Natural Gas, Delhi Pipeline, Oasis Pipeline, EPGT

    Texas and Lone Star Pipeline. The Platt's

    [[Page 24657]]

    bidweek index is published on the first business day of the calendar

    month in which the natural gas is to be delivered. The size of the WAH

    contract is 2,500 million British thermal units (``mmBtu''), and the

    unit of trading is any multiple of 2,500 mmBtu. The WAH contract is

    listed for up to 72 calendar months commencing with the next calendar

    month.

    The Henry Hub,\13\ which is located in Erath, Louisiana, is the

    primary cash market trading and distribution center for natural gas in

    the United States. It also is the delivery point and pricing basis for

    the NYMEX's actively traded, physically-delivered natural gas futures

    contract, which is the most important pricing reference for natural gas

    in the United States. The Henry Hub, which is operated by Sabine Pipe

    Line, LLC, serves as a juncture for 13 different pipelines. These

    pipelines bring in natural gas from fields in the Gulf Coast region and

    ship it to major consumption centers along the East Coast and Midwest.

    The throughput shipping capacity of the Henry Hub is 1.8 trillion mmBtu

    per day.

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    \13\ The term ``hub'' refers to a juncture where two or more

    natural gas pipelines are connected. Hubs also serve as pricing

    points for natural gas at the particular locations.

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    In addition to the Henry Hub, there are a number of other locations

    where natural gas is traded. In 2008, there were 33 natural gas market

    centers in North America.\14\ Some of the major trading centers include

    Alberta, Northwest Rockies, Southern California border and the Houston

    Ship Channel. For locations that are directly connected to the Henry

    Hub by one or more pipelines and where there typically is adequate

    shipping capacity, the price at the other locations usually directly

    tracks the price at the Henry Hub, adjusted for transportation costs.

    However, at other locations that are not directly connected to the

    Henry Hub or where shipping capacity is limited, the prices at those

    locations often diverge from the Henry Hub price. Furthermore, one

    local price may be significantly different than the price at another

    location even though the two markets' respective distances from the

    Henry Hub are the same. The reason for such pricing disparities is that

    a given location may experience supply and demand factors that are

    specific to that region, such as differences in pipeline shipping

    capacity, unusually high or low demand for heating or cooling or supply

    disruptions caused by severe weather. As a consequence, local natural

    gas prices can differ from the Henry Hub price by more than the cost of

    shipping and such price differences can vary in an unpredictable

    manner.

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    \14\ See http://www.eia.doe.gov/pub/oil_gas/natural_gas/

    feature_articles/2009/ngmarketcenter/ngmarketcenter.pdf.

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    The Waha hub lies south of the prolific gas deposits in the San

    Juan and Permian Basins of West Texas, near the New Mexico border. The

    hub is accessible by several interstate and intrastate pipelines that

    serve customer bases in both the Western and Midwestern United States.

    As noted above, the cash market transactions included in the Platts

    index are those fixed-price gas deliveries into the following

    pipelines: El Paso Natural Gas, Transwestern Pipeline, Natural Gas

    Pipeline Company of America, Northern Natural Gas, Delhi Pipeline,

    Oasis Pipeline, EPGT Texas and Lone Star Pipeline. While the Waha

    pricing center does not appear to be far removed from the Henry Hub,

    the gas from Waha tends to flow to the Western and Midwest whereas the

    gas from the Henry Hub tends to flow East of the Mississippi.

    The Waha (EPGT) and Waha (CDP/Atmos) Texas Hubs, two market centers

    near the Waha Hub, had an estimated throughput capacity in 2008 of 250

    million cubic feet per day and 300 million cubic feet per day,

    respectively. Moreover, the number of pipeline interconnections at each

    market center was 10 in 2008. Lastly, the pipeline interconnection

    capacity of the Waha (EPGT) and Waha (CDP/Atmos) Texas Hubs in 2008

    were 1.8 billion million cubic feet per day and 2.3 billion cubic feet

    per day, respectively.\15\ The Waha hub is removed from the Henry Hub

    and is not directly connected to the Henry Hub by an existing pipeline.

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    \15\ See http://www.eia.doe.gov/pub/oil_gas/natural_gas/

    feature_articles/2009/ngmarketcenter/ngmarketcenter.pdf.

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    The local price at the Waha hub typically differs from the price at

    the Henry Hub. Thus, the price of the Henry Hub physically-delivered

    futures contract is an imperfect proxy for the WAH contract's price.

    Moreover, the Waha hub is landlocked and so is less susceptible to

    exogenous factors such as extreme weather, which can cause the Waha gas

    price to differ from the Henry Hub price by an amount that is more or

    less than the cost of shipping, making the NYMEX Henry Hub futures

    contract even less precise as a hedging tool than desired by market

    participants. Basis contracts \16\ allow traders to more accurately

    discover prices at alternative locations and hedge price risk that is

    associated with natural gas at such locations. In this regard, a

    position at a local price for an alternative location can be

    established by adding the appropriate basis swap position to a position

    taken in the NYMEX physically-delivered Henry Hub contract (or in the

    NYMEX or ICE Henry Hub look-alike contract, which cash settle based on

    the NYMEX physically-delivered natural gas contract's final settlement

    price).

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    \16\ Basis contracts denote the difference in the price of

    natural gas at a specified location minus the price of natural gas

    at the Henry Hub. The differential can be either a positive or

    negative value.

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    In its October 9, 2009, Federal Register notice, the Commission

    identified material price reference, price linkage and material

    liquidity as the potential SPDC criteria applicable to the WAH

    contract. Each of these criteria is discussed below.\17\

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    \17\ As noted above, the Commission did not find an indication

    of arbitrage in connection with this contract; accordingly, that

    criterion was not discussed in reference to the WAH contract.

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    1. Material Price Reference Criterion

    The Commission's October 9, 2009, Federal Register notice

    identified material price reference as a potential basis for a SPDC

    determination with respect to this contract. The Commission considered

    the fact that ICE sells its price data to market participants in a

    number of different packages which vary in terms of the hubs covered,

    time periods, and whether the data are daily only or historical. For

    example, ICE offers the ``OTC Gas End of Day'' \18\ package with access

    to all price data or just current prices plus a selected number of

    months (i.e., 12, 24, 36 or 48 months) of historical data. These two

    packages include price data for the WAH contract.

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    \18\ The OTC Gas End of Day dataset includes daily settlement

    prices for natural gas contracts listed for all points in North

    America.

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    The Commission also noted that its October 2007 Report on the

    Oversight of Trading on Regulated Futures Exchanges and Exempt

    Commercial Markets (``ECM Study'')\19\ found that in general, market

    participants view the ICE as a price discovery market for certain

    natural gas contracts. The study did not specify which markets

    performed this function; nevertheless, the Commission determined that

    the WAH contract, while not mentioned by name in the ECM Study, might

    warrant further study.

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    \19\ http://www.cftc.gov/ucm/groups/public/@newsroom/documents/

    file/pr5403-07_ecmreport.pdf.

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    The Commission will rely on one of two sources of evidence--direct

    or indirect--to determine that the price of a contract was being used

    as a material price reference and therefore, serving a

    [[Page 24658]]

    significant price discovery function.\20\ With respect to direct

    evidence, the Commission will consider the extent to which, on a

    frequent and recurring basis, cash market bids, offers or transactions

    are directly based on or quoted at a differential to, the prices

    generated on the ECM in question. Direct evidence may be established

    when cash market participants are quoting bid or offer prices or

    entering into transactions at prices that are set either explicitly or

    implicitly at a differential to prices established for the contract in

    question. Cash market prices are set explicitly at a differential to

    the section 2(h)(3) contract when, for instance, they are quoted in

    dollars and cents above or below the reference contract's price. Cash

    market prices are set implicitly at a differential to a section 2(h)(3)

    contract when, for instance, they are arrived at after adding to, or

    subtracting from the section 2(h)(3) contract, but then quoted or

    reported at a flat price. With respect to indirect evidence, the

    Commission will consider the extent to which the price of the contract

    in question is being routinely disseminated in widely distributed

    industry publications--or offered by the ECM itself for some form of

    remuneration--and consulted on a frequent and recurring basis by

    industry participants in pricing cash market transactions.

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    \20\ 17 CFR part 36, Appendix A.

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    The Waha hub is a major trading center for natural gas in the

    United States. Traders, including producers, keep abreast of the prices

    of the WAH contract when conducting cash deals. These traders look to a

    competitively determined price as an indication of expected values of

    natural gas at Waha when entering into cash market transactions for

    natural gas, especially those trades providing for physical delivery in

    the future. Traders use the ICE WAH contract, as well as other ICE

    basis swap contracts, to hedge cash market positions and transactions--

    activities which enhance the WAH contract's price discovery utility.

    The substantial volume of trading and open interest in the WAH contract

    appears to attest to its use for this purpose. While the WAH contract's

    settlement prices may not be the only factor influencing spot and

    forward transactions, natural gas traders consider the ICE price to be

    a critical factor in conducting OTC transactions.\21\ As a result, the

    WAH contract satisfies the direct price reference test.

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    \21\ In addition to referencing ICE prices, natural gas market

    firms participating in the Waha market may rely on other cash market

    quotes as well as industry publications and price indices that are

    published by third-party price reporting firms in entering into

    natural gas transactions.

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    In terms of indirect price reference, ICE sells the WAH contract's

    prices as part of a broad package. The Commission notes that the Waha

    hub is a major natural gas trading point, and the WAH contract's prices

    are well regarded in the industry as indicative of the value of natural

    gas at the Waha hub. Accordingly, the Commission believes that it is

    reasonable to conclude that market participants are purchasing the data

    packages that include the WAH contract's prices in substantial part

    because the WAH contract prices have particular value to them.

    Moreover, such prices are consulted on a frequent and recurring basis

    by industry participants in pricing cash market transactions. In light

    of the above, the WAH contract meets the indirect price reference test.

    NYMEX lists a futures contract that is comparable to the ICE WAH

    contract on its ClearPort platform called the Waha Basis Swap (Platts

    IFERC) futures contract. However, unlike the ICE contract, none of the

    trades in the NYMEX contract are executed in NYMEX's centralized

    marketplace; instead, all of the transactions originate as bilateral

    swaps that are submitted to NYMEX for clearing. The daily settlement

    prices of the NYMEX version of the WAH contract are influenced, in

    part, by the daily settlement prices of the ICE WAH contract. This is

    because NYMEX determines the daily settlement prices for its natural

    gas basis swap contracts through a survey of cash market voice brokers.

    Voice brokers, in turn, refer to the ICE WAH price, among other

    information, as an important indicator as to where the market is

    trading. Therefore, the ICE WAH price influences the settlement price

    for the NYMEX's Waha contract. This is supported by an analysis of the

    daily settlement prices for the NYMEX Waha Basis Swap and ICE WAH

    contracts. In this regard, 99 percent of the daily settlement prices

    for the NYMEX Waha Basis Swap contract are within one standard

    deviation of the WAH contract's price settlement prices.

    Lastly, the fact that the WAH contract does not meet the price

    linkage criterion (discussed below) bolsters the argument for material

    price reference. As noted above, the Henry Hub is the pricing reference

    for natural gas in the United States. However, regional market

    conditions may cause the price of natural gas in another area of the

    country to diverge by more than the cost of transportation, thus making

    the Henry Hub price an imperfect proxy for the local gas price. The

    more variable the local natural gas price is, the more traders need to

    accurately hedge their price risk. Basis swap contracts provide a means

    of more accurately pricing natural gas at a location other than the

    Henry Hub. An analysis of Waha natural gas prices showed that 96

    percent of the observations were more than 2.5 percent different that

    the contemporaneous Henry Hub prices. The average Waha basis value

    between January 2008 and September 2009 was -$0.98 per mmBtu with a

    variance of $0.38 per mmBtu.

    i. Federal Register Comments

    ICE stated in its comment letter that the WAH contract does not

    meet the material price reference criterion for SPDC determination. ICE

    argued that the Commission appeared to base the case that the WAH

    contract is potentially a SPDC on what it characterizes as a disputable

    assertion. In issuing its notice of intent to determine whether the WAH

    contract is a SPDC, the CFTC cited a general conclusion in its ECM

    study ``that certain market participants referred to ICE as a price

    discovery market for certain natural gas contracts.'' \22\ ICE stated

    that CFTC's reason is ``hard to quantify as the ECM report does not

    mention'' this contract as a potential SPDC. ``It is unknown which

    market participants made this statement in 2007 or the contracts that

    were referenced.'' \23\ In response to the above comment, the

    Commission notes that it cited the ECM study's general finding that

    some ICE natural gas contracts appear to be regarded as price discovery

    markets merely as an indicia that an investigation of certain ICE

    contracts may be warranted, and was not intended to serve as the sole

    basis for determining whether or not a particular contract meets the

    material price reference criterion.

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    \22\ CL 04.

    \23\ CL 04.

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    WGCEF \24\, EI \25\ and FIEG \26\ all stated that the WAH contract

    does not satisfy the material price reference criterion. The commenters

    argued that other contracts (physical or financial) are not indexed

    based on the ICE WAH contract price, but rather are indexed based on

    the underlying cash price series against which the ICE WAH contract is

    settled. Thus, they contend that the underlying cash price series is

    the authentic reference price and not the ICE contract itself. The

    Commission believes that this interpretation of price reference is too

    limiting in that it only considers the

    [[Page 24659]]

    final index value on which the contract is cash settled after trading

    ceases. Instead, the Commission believes that a cash-settled

    derivatives contract could meet the material price reference criteria

    if market participants ``consult on a frequent and recurring basis''

    the derivatives contract when pricing forward, fixed-price commitments

    or other cash-settled derivatives that seek to ``lock in'' a fixed

    price for some future point in time to hedge against adverse price

    movements.

    ---------------------------------------------------------------------------

    \24\ CL 02.

    \25\ CL 05.

    \26\ CL 08.

    ---------------------------------------------------------------------------

    As noted above, the Waha hub is a major trading center for natural

    gas in North America. Traders, including producers, keep abreast of the

    prices of the WAH contract when conducting cash deals. These traders

    look to a competitively determined price as an indication of expected

    values of natural gas at the Waha hub when entering into cash market

    transactions for natural gas, especially those trades that provide for

    physical delivery in the future. Traders use the ICE WAH contract to

    hedge cash market positions and transactions, which enhances the WAH

    contract's price discovery utility. While the WAH contract's settlement

    prices may not be the only factor influencing spot and forward

    transactions, natural gas traders consider the ICE price to be a

    crucial factor in conducting OTC transactions.

    Both EI and WGCEF stated that publication of price data in a

    package format is a weak justification for material price reference.

    These commenters argue that market participants generally do not

    purchase ICE data sets for one contract's prices, so the fact that ICE

    sells the WAH prices as part of a broad package is not conclusive

    evidence that market participants are buying the ICE data sets because

    they find the WAH prices have substantial value to them. The Commission

    notes that Waha is a major natural gas trading point, and the WAH

    contract's prices are well regarded in the industry as indicative of

    the value of natural gas at the Waha hub. Accordingly, the Commission

    believes that it is reasonable to conclude that market participants are

    purchasing the data packages that include the WAH contract's prices in

    substantial part because the WAH contract prices have particular value

    to them.

    ii. Conclusion Regarding Material Price Reference

    Based on the above, the Commission finds that the WAH contract

    meets the material price reference criterion because cash market

    transactions are being priced on a frequent and recurring basis at a

    differential to the WAH contract's price (direct evidence). Moreover,

    the ECM sells the WAH contract's price data to market participants and

    it is reasonable to conclude that market participants are purchasing

    the data packages that include the WAH contract's prices in substantial

    part because the WAH contract prices have particular value to them.

    Furthermore, such prices are consulted on a frequent and recurring

    basis by industry participants in pricing cash market transactions

    (indirect evidence).

    2. Price Linkage Criterion

    In its October 9, 2009, Federal Register notice, the Commission

    identified price linkage as a potential basis for a SPDC determination

    with respect to the WAH contract. In this regard, the final settlement

    of the WAH 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 DCM.

    The Commission's Guidance on Significant Price Discovery Contracts

    \27\ notes that a ``price-linked contract is a contract that relies on

    a contract traded on another trading facility to settle, value or

    otherwise offset the price-linked contract.'' Furthermore, the Guidance

    notes that, ``[f]or a linked contract, the mere fact that a contract is

    linked to another contract will not be sufficient to support a

    determination that a contract performs a significant price discovery

    function. To assess whether such a determination is warranted, the

    Commission will examine the relationship between transaction prices of

    the linked contract and the prices of the referenced contract. The

    Commission believes that where material liquidity exists, prices for

    the linked contract would be observed to be substantially the same as

    or move substantially in conjunction with the prices of the referenced

    contract.'' Furthermore, the Guidance proposes a threshold price

    relationship such that prices of the ECM linked contract will fall

    within a 2.5 percent price range for 95 percent of contemporaneously

    determined closing, settlement or other daily prices over the most

    recent quarter. Finally, the Commission also stated in the Guidance

    that it would consider a linked contract that has a trading volume

    equivalent to 5 percent of the volume of trading in the contract to

    which it is linked to have sufficient volume potentially to be deemed a

    SPDC (``minimum threshold'').

    ---------------------------------------------------------------------------

    \27\ Appendix A to the Part 36 rules.

    ---------------------------------------------------------------------------

    To assess whether the WAH contract meets the price linkage

    criterion, Commission staff obtained price data from ICE and performed

    the statistical tests cited above. Staff found that while the natural

    gas price at the Waha hub is determined, in part, by the final

    settlement price of the NYMEX physically-delivered natural gas futures

    contract (a DCM contract), the Waha hub price is not within 2.5 percent

    of the settlement price of the corresponding NYMEX Henry Hub natural

    gas futures contract on 95 percent the days. Specifically, during the

    third quarter of 2009, 4.2 percent of the WAH natural gas prices

    derived from the ICE basis values were within 2.5 percent of the daily

    settlement price of the NYMEX Henry Hub futures contract. In addition,

    staff finds that the WAH contract fails to meet the volume threshold

    requirement. In particular, the total trading volume in the NYMEX

    Natural Gas contract during the third quarter of 2009 was 14,022,963

    contracts, with 5 percent of that number being 701,148 contracts. The

    number of trades on the ICE centralized market in the WAH contract

    during the same period was 120,050 contracts (equivalent to 30,012

    NYMEX contracts, given the size difference).\28\ Thus, centralized-

    market trades in the WAH contract amounted to less than the minimum

    threshold.

    ---------------------------------------------------------------------------

    \28\ The WAH contract is one-quarter the size of the NYMEX Henry

    Hub physically-delivered futures contract.

    ---------------------------------------------------------------------------

    Due to the specific criteria that a given ECM contract must meet to

    fulfill the price linkage criterion, the requirements, for all intents

    and purposes, exclude ECM contracts that are not near facsimiles of DCM

    contracts. That is, even though an ECM contract may specifically use a

    DCM contract's settlement price to value a position, which is the case

    of the WAH contract, a substantive difference between the two price

    series would rule out the presence of price linkage. In this regard, an

    ECM contract that is priced and traded as if it is a functional

    equivalent of a DCM contract likely will have a price series that

    mirrors that of the corresponding DCM contract. In contrast, for

    contracts that are not look-alikes of DCM contracts, it is reasonable

    to expect that the two price series would be divergent. The Waha hub

    and the Henry Hub are located at opposite sides of the Gulf Coast

    natural gas market. While the Henry Hub and the Waha hub are both

    primarily supply centers, each center has its own unique physical

    characteristics that govern the flow of the gas, as well as a

    geographically

    [[Page 24660]]

    unique customer base with a different demand schedule. These

    differences contribute to the divergence between the two price series

    and, as discussed below, increase the likelihood that the ``basis''

    contract is used for material price reference.

    i. Federal Register Comments

    EI \29\ stated that the WAH and NYMEX natural gas contracts are not

    economically equivalent and that the WAH contract's volume is too low

    to affect the NYMEX natural gas futures contract. WGCEF \30\ stated

    that the WAH contract's price is determined, in part, by the final

    settlement price of the NYMEX Henry Hub futures contract. However,

    WGCEF goes on to state that the WAH contract ``(a) is not substantially

    the same as the NYMEX [natural gas futures contract] * * * nor (b) does

    it move substantially in conjunction'' with the NYMEX natural gas

    futures contract. ICE \31\ pronounced that the WAH contract's trading

    volume is too low to affect the price discovery process for the NYMEX

    natural gas futures contract. In addition, ICE stated that the WAH

    contract simply reflects a price differential between Waha hub and the

    Henry Hub; ``there is no price linkage as contemplated by Congress or

    the CFTC in its rulemaking.'' FIEG \32\ acknowledged that the WAH

    contract is a locational spread that is based in part on the NYMEX

    natural gas futures price, but also questioned the significance of this

    fact relative to the price linkage criterion since the key component of

    the spread is the price at Waha hub and not the NYMEX physically-

    delivered natural gas futures price.

    ---------------------------------------------------------------------------

    \29\ CL 06.

    \30\ CL 02.

    \31\ CL 04.

    \32\ CL 08.

    ---------------------------------------------------------------------------

    ii. Conclusion Regarding the Price Linkage Criterion

    Based on the above, the Commission finds that the WAH contract does

    not meet the price linkage criterion because it fails the price

    relationship and volume tests provided for in the Commission's

    Guidance.

    3. Material Liquidity Criterion

    To assess whether the WAH contract meets the material liquidity

    criterion, the Commission first examined volume and open interest data

    provided to it by ICE as a general measurement of the WAH contract's

    size and potential importance, and second performed a statistical

    analysis to measure the effect that changes to WAH prices potentially

    may have on prices for the NYMEX Henry Hub Natural Gas (a DCM

    contract), the ICE Chicago Financial Basis contract (an ECM contract),

    the ICE TexOK Financial Basis contract (an ECM contract) and the ICE

    Permian Financial Basis contract (an ECM contract).\33\

    ---------------------------------------------------------------------------

    \33\ As noted above, the material liquidity criterion speaks to

    the effect that transactions in the potential SPDC may have on

    trading in ``agreements, contracts and transactions listed for

    trading on or subject to the rules of a designated contract market,

    a derivatives transaction execution facility, or an electronic

    trading facility operating in reliance on the exemption in section

    2(h)(3) of the Act.''

    ---------------------------------------------------------------------------

    The Commission's Guidance (Appendix A to Part 36) notes that

    ``[t]raditionally, objective measures of trading such as volume or open

    interest have been used as measures of liquidity.'' In this regard, the

    Commission in its October 9, 2009, Federal Register notice referred to

    second quarter 2009 trading statistics that ICE had submitted for its

    WAH contract. Based upon on a required quarterly filing made by ICE on

    July 27, 2009, the total number of WAH trades executed on ICE's

    electronic trading platform was 1,165 in the second quarter of 2009,

    resulting in a daily average of 18 trades. During the same period, the

    WAH contract had a total trading volume on ICE's electronic trading

    platform of 100,490 contracts and an average daily trading volume of

    1,570 contracts. Moreover, the open interest as of June 30, 2009, was

    96,371 contracts, which includes trades executed on ICE's electronic

    trading platform, as well as trades executed off of ICE's electronic

    trading platform and then brought to ICE for clearing.\34\

    ---------------------------------------------------------------------------

    \34\ ICE does not differentiate between open interest created by

    a transaction executed on its trading platform versus that created

    by a transaction executed off its trading platform.

    ---------------------------------------------------------------------------

    Subsequent to the October 9, 2009, Federal Register notice, ICE

    submitted another quarterly notification filed on November 13,

    2009,\35\ with updated trading statistics. Specifically, with respect

    to its WAH contract, 1,252 separate trades occurred on its electronic

    platform in the third quarter of 2009, resulting in a daily average of

    19 trades. During the same period, the WAH contract had a total trading

    volume on its electronic platform of 120,050 contracts (which was an

    average of 1,819 contracts per day).\36\ As of September 30, 2009, open

    interest in the WAH contract was 114,238 contracts.\37\ Reported open

    interest included positions resulting from trades that were executed on

    ICE's electronic platform, as well as trades that were executed off of

    ICE's electronic platform and brought to ICE for clearing.

    ---------------------------------------------------------------------------

    \35\ See Commission Rule 36.3(c)(2), 17 CFR 36.3(c)(2).

    \36\ By way of comparison, the number of contracts traded in the

    WAH contract is similar to that exhibited on a liquid futures market

    and is roughly equivalent to the volume of trading for the NYMEX

    Palladium futures contract during this period.

    \37\ By way of comparison, open interest in the WAH contract is

    roughly equivalent to that in the ICE US Coffee ``C'' futures

    contract and the COMEX copper futures contract.

    ---------------------------------------------------------------------------

    In the Guidance, the Commission stated that material liquidity can

    be identified by the impact liquidity exhibits through observed prices.

    Thus, to make a determination whether the WAH contract has such

    material impact, the Commission reviewed the relevant trading

    statistics (noted above). In this regard, the average number of trades

    per day in the second and third quarters of 2009 were well above the

    minimum reporting level (5 trades per day). Moreover, trading activity

    in the WAH contract, as characterized by total quarterly volume,

    indicates that the WAH contract experiences trading activity that is

    greater than in thinly-traded contracts.\38\ Thus, it is reasonable to

    infer that the WAH contract could have a material effect on other ECM

    contracts or on DCM contracts.

    ---------------------------------------------------------------------------

    \38\ Staff has advised the Commission that in its experience, a

    thinly-traded contract is, generally, one that has a quarterly

    trading volume of 100,000 contracts or less. In this regard, in the

    third quarter of 2009, physical commodity futures contracts with

    trading volume of 100,000 contracts or fewer constituted less than

    one percent of total trading volume of all physical commodity

    futures contracts.

    ---------------------------------------------------------------------------

    To measure the effect that the WAH contract potentially could have

    on a DCM contract, or on another ECM contract, Commission staff

    performed a statistical analysis \39\ using daily settlement prices

    (between January 2, 2008, and September 30, 2009) for the ICE WAH

    contract, as well as for the NYMEX Henry Hub natural gas contract

    [[Page 24661]]

    (a DCM contract) the ICE Chicago Financial Basis contract (an ECM

    contract), ICE TexOk Financial Basis contract (an ECM contract) and ICE

    Permian Financial Basis contract (an ECM contract).\40\ The simulation

    results suggest that, on average over the sample period, a one percent

    rise in the WAH contract's price elicited a 0.8 percent increase in ICE

    Chicago and the NYMEX Henry Hub, a 0.9 percent increase in ICE TexOK

    and an equivalent increase in ICE Permian prices.

    ---------------------------------------------------------------------------

    \39\ Specifically, Commission staff econometrically estimated a

    vector autoregression (VAR) model using daily settlement prices. A

    vector autoregression model is an econometric model used to capture

    the evolution and the interdependencies between multiple time

    series, generalizing the univariate autoregression models. The

    estimated model displays strong diagnostic evidence of statistical

    adequacy. In particular, the model's impulse response function was

    shocked with a one-time rise in WAH contract's price. The simulation

    results suggest that, on average over the sample period, a one

    percent rise in the WAH contract's price elicited a 0.8 percent

    increase in the NYMEX Henry Hub and Chicago prices, as well as 0.9

    percent increase in the TexOk contract and a 1 percent increase in

    the Permian Basin contract. These multipliers of response emerge

    with noticeable statistical strength or significance. Based on such

    long run sample patterns, if the WAH contract's price rises by 10

    percent, then the prices of NYMEX Henry Hub natural gas futures

    contract and the ICE Chicago Financial Basis contract would each

    rise by 8 percent. In addition, the price of ICE's TexOk Financial

    Basis contract would rise by 9 percent, and the price of the ICE's

    Permain Financial Basis would rise by 10 percent.

    \40\ Natural gas prices at the Chicago, Permian, and TexOk hubs

    were obtained by adding the daily settlement prices of ICE's Chicago

    Financial Basis, Permian Basin Financial Basis and TexOk Financial

    Basis contracts, respectively, to the contemporaneous daily

    settlement prices of the NYMEX Henry Hub physically-delivered

    natural gas futures contract.

    ---------------------------------------------------------------------------

    i. Federal Register Comments

    As noted above, comments were received from seven individuals and

    organizations, with five comments being directly applicable to the SPDC

    determination of the ICE WAH contract. WGCEF, EI, FIEG and ICE

    generally agreed that the WAH contract does not meet the material

    liquidity criterion.

    WGCEF \41\ stated that the WAH contract does not materially affect

    other contracts that are listed for trading on DCMs or ECMs, as well as

    other over-the-counter contracts. Instead, the WAH contract is

    influenced by the underlying Waha cash price index and the final

    settlement price of the NYMEX Henry Hub natural gas futures contract,

    not vice versa. FIEG \42\ stated that the WAH contract cannot have a

    material effect on NYMEX contract because the WAH contract trades on a

    differential and represents ``one leg (and not the relevant leg) of the

    locational spread.'' The Commission's statistical analysis shows that

    changes in the ICE WAH contract's price significantly influences the

    prices of other contracts that are traded on DCMs and ECMs.

    ---------------------------------------------------------------------------

    \41\ CL 02.

    \42\ CL 08.

    ---------------------------------------------------------------------------

    ICE opined that the Commission ``seems to have adopted a five

    trade-per-day test to determine whether a contract is materially

    liquid. It is worth noting that ICE originally suggested that the CFTC

    use a five trades-per-day threshold as the basis for an ECM to report

    trade data to the CFTC.'' In this regard, the Commission adopted a five

    trades-per-day threshold as a reporting requirement to enable it to

    ``independently be aware of ECM contracts that may develop into SPDCs''

    rather than solely relying upon an ECM on its own to identify any such

    potential SPDCs to the Commission. Thus, any contract that meets this

    threshold may be subject to scrutiny as a potential SPDC. As noted

    above, the Commission is basing a finding of material liquidity for the

    ICE WAH contract, in part, on the fact that there have been nearly 20

    trades per day on average in the WAH contract during the second and

    third quarters of 2009, which is almost quadruple the five trades-per-

    day that is cited in the ICE comment. In addition, the Commission notes

    that the number of contracts per transaction in the WAH contract is

    high (approximately 96 contracts per transaction) and thus, as noted,

    trading volume (measured in contract units) is substantial. The WAH

    contract also has significant open interest.

    ICE implied that the statistics provided by ICE were misinterpreted

    and misapplied by the Commission. In particular, ICE stated that the

    volume figures used in the Commission's analysis (cited above)

    ``include trades made in all listed months of each contract'' as well

    as in strips of contract months, and a ``more appropriate method of

    determining liquidity is to examine the activity in a single traded

    month or strip of a given contract.'' ICE stated that only about 25 to

    40 percent of the trades occurred in the single most liquid, usually

    prompt, month of the contract.

    It is the Commission's opinion that liquidity, as it pertains to

    the WAH contract, is typically a function of trading activity in

    particular lead months and, given sufficient liquidity in such months,

    the WAH contract itself would be considered liquid. ICE's analysis of

    its own trade data confirms this to be the case for the WAH contract,

    and thus, the Commission believes that it applied the statistical data

    cited above in an appropriate manner for gauging material liquidity.

    In addition, EI and ICE stated that the trades-per-day statistics

    that it provided to the Commission in its quarterly filing and which

    are cited above includes 2(h)(1) transactions, which were not completed

    on the electronic trading platform and should not be considered in the

    SPDC determination process. Commission staff asked ICE to review the

    data it sent in its quarterly filings. In response, ICE confirmed that

    the volume data it provided and which the Commission cited in its

    October 9, 2009, Federal Register notice, as well as the additional

    volume information it cites above, includes only transaction data

    executed on ICE's electronic trading platform. The Commission

    acknowledges that the open interest information it cites above includes

    transactions made off the ICE platform.\43\ However, once open interest

    is created, there is no way for ICE to differentiate between ``on-

    exchange'' versus ``off-exchange'' created positions, and all such

    positions are fungible with one another and may be offset in any way

    agreeable to the position holder regardless of how the position was

    initially created.

    ---------------------------------------------------------------------------

    \43\ Supplemental data supplied by the ICE confirmed that block

    trades in the third quarter of 2009 were in addition to the trades

    that were conducted on the electronic platform; block trades

    comprised 44.3 percent of all transactions in the WAH contract.

    ---------------------------------------------------------------------------

    ii. Conclusion Regarding Material Liquidity

    Based on the above, the Commission concludes that the WAH contract

    meets the material liquidity criterion in that there is sufficient

    trading activity in the WAH contract to have a material effect on

    ``other agreements, contracts or transactions listed for trading on or

    subject to the rules of a designated contract market * * * or an

    electronic trading facility operating in reliance on the exemption in

    section 2(h)(3) of the Act'' (that is, an ECM).

    4. Overall Conclusion

    After considering the entire record in this matter, including the

    comments received, the Commission has determined that the WAH contract

    performs a significant price discovery function under two of the four

    criteria established in section 2(h)(7) of the CEA. Although the

    Commission has determined that the WAH contract does not meet the price

    linkage criterion at this time, the Commission has concluded that the

    WAH contract does meet both the material liquidity and material price

    reference criteria. Accordingly, the Commission is issuing the attached

    Order declaring that the WAH contract is a SPDC.

    Issuance of this Order signals the immediate effectiveness of the

    Commission's authorities with respect to ICE as a registered entity in

    connection with its WAH contract,\44\ and triggers the obligations,

    requirements--both procedural and substantive--and timetables

    prescribed in Commission rule 36.3(c)(4) for ECMs.

    ---------------------------------------------------------------------------

    \44\ See 73 FR 75888, 75893 (Dec. 12, 2008).

    ---------------------------------------------------------------------------

    V. Related Matters

    a. Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (``PRA'') \45\ 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.

    [[Page 24662]]

    Certain provisions of 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.

    ---------------------------------------------------------------------------

    \45\ 44 U.S.C. 3507(d).

    ---------------------------------------------------------------------------

    b. Cost-Benefit Analysis

    Section 15(a) of the CEA \46\ 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 an order or to determine whether the

    benefits of the order outweigh its costs; rather, it requires that the

    Commission ``consider'' the costs and benefits of its actions. 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. The Commission may 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

    order is necessary or appropriate to protect the public interest or to

    effectuate any of the provisions or accomplish any of the purposes of

    the Act. The Commission has considered the costs and benefits in light

    of the specific provisions of section 15(a) of the Act and has

    concluded that the Order, required by Congress to strengthen Federal

    oversight of exempt commercial markets and to prevent market

    manipulation, is necessary and appropriate to accomplish the purposes

    of section 2(h)(7) of the Act.

    ---------------------------------------------------------------------------

    \46\ 7 U.S.C. 19(a).

    ---------------------------------------------------------------------------

    When a futures contract begins to serve a significant price

    discovery function, that contract, and the ECM on which it is traded,

    warrants increased oversight to deter and prevent price manipulation or

    other disruptions to market integrity, both on the ECM itself and in

    any related futures contracts trading on DCMs. An Order finding that a

    particular contract is a SPDC triggers this increased oversight and

    imposes obligations on the ECM calculated to accomplish this goal. The

    increased oversight engendered by the issue of a SPDC Order increases

    transparency and helps to ensure fair competition among ECMs and DCMs

    trading similar products and competing for the same business. Moreover,

    the ECM on which the SPDC is traded must assume, with respect to that

    contract, all the responsibilities and obligations of a registered

    entity under the CEA and Commission regulations. Additionally, the ECM

    must comply with nine core principles established by section 2(h)(7) of

    the Act--including the obligation to establish position limits and/or

    accountability standards for the SPDC. Section 4(i) of the CEA

    authorizes the Commission to require reports for SPDCs listed on ECMs.

    These increased responsibilities, along with the CFTC's increased

    regulatory authority, subject the ECM's risk management practices to

    the Commission's supervision and oversight and generally enhance the

    financial integrity of the markets.

    c. Regulatory Flexibility Act

    The Regulatory Flexibility Act (``RFA'') \47\ requires that

    agencies consider the impact of their rules on small businesses. The

    requirements of CEA section 2(h)(7) and the Part 36 rules affect ECMs.

    The Commission previously has determined that ECMs are not small

    entities for purposes of the RFA.\48\ Accordingly, the Chairman, on

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

    that this Order, taken in connection with section 2(h)(7) of the Act

    and the Part 36 rules, will not have a significant impact on a

    substantial number of small entities.

    ---------------------------------------------------------------------------

    \47\ 5 U.S.C. 601 et seq.

    \48\ 66 FR 42256, 42268 (Aug. 10, 2001).

    ---------------------------------------------------------------------------

    VI. Order

    a. Order Relating to the ICE Waha Financial Basis Contract

    After considering the complete record in this matter, including the

    comment letters received in response to its request for comments, the

    Commission has determined to issue the following Order:

    The Commission, pursuant to its authority under section 2(h)(7) of

    the Act, hereby determines that the Waha Financial Basis contract,

    traded on the IntercontinentalExchange, Inc., satisfies the statutory

    material liquidity and material price reference criteria for

    significant price discovery contracts. Consistent with this

    determination, and effective immediately, the IntercontinentalExchange,

    Inc., must comply with, with respect to the Waha Financial Basis

    contract, the nine core principles established by new section

    2(h)(7)(C). Additionally, the IntercontinentalExchange, Inc., shall be

    and is considered a registered entity \49\ with respect to the Waha

    Financial Basis contract and is subject to all the provisions of the

    Commodity Exchange Act applicable to registered entities. Further, the

    obligations, requirements and timetables prescribed in Commission rule

    36.3(c)(4) governing core principle compliance by the

    IntercontinentalExchange, Inc., commence with the issuance of this

    Order.\50\

    ---------------------------------------------------------------------------

    \49\ 7 U.S.C. 1a(29).

    \50\ Because ICE already lists for trading a contract (i.e., the

    Henry Financial LD1 Fixed Price contract) that was previously

    declared by the Commission to be a SPDC, ICE must submit a written

    demonstration of compliance with the Core Principles within 30

    calendar days of the date of this Order. 17 CFR 36.3(c)(4).

    Issued in Washington, DC, on April 28, 2010, by the Commission.

    David A. Stawick,

    Secretary of the Commission.

    [FR Doc. 2010-10324 Filed 5-4-10; 8:45 am]

    BILLING CODE P

    Last Updated: May 5, 2010



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