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2010-6813

  • FR Doc 2010-6813[Federal Register: March 30, 2010 (Volume 75, Number 60)]

    [Proposed Rules]

    [Page 15635-15639]

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

    [DOCID:fr30mr10-23]

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    COMMODITY FUTURES TRADING COMMISSION

    17 CFR Parts 38 and 140

    RIN 3038--AC68

    Delegations of Authority To Disclose Confidential Information

    AGENCY: Commodity Futures Trading Commission.

    ACTION: Proposed rule.

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    SUMMARY: The Commodity Futures Trading Commission (``CFTC'' or

    ``Commission'') is proposing to amend its regulations governing

    delegations of authority to disclose confidential information to permit

    CFTC staff to provide confidential information to ``registered

    entities,'' including exempt commercial markets offering significant

    price discovery contracts, and to require that registered entities

    update their lists of confidential data recipients on an annual basis.

    The Commission's proposal would also clarify that confidential

    information provided by the Commission to registered entities may only

    be used for market surveillance, audit, investigative or rule

    enforcement purposes and would remove the requirement that disclosures

    of confidential information to foreign government agencies and foreign

    futures authorities require the concurrence of the Commission's

    Division of Enforcement. Finally, the proposal would make certain other

    technical and conforming amendments to the Commission's rules.

    DATES: Comments must be received by April 29, 2010.

    ADDRESSES: Comments should be submitted to David Stawick, Secretary,

    Commodity Futures Trading Commission, Three Lafayette Centre, 1155 21st

    Street, NW., Washington, DC 20581. Comments also may be sent by

    facsimile to (202) 418-5521, or by e-mail to

    confidentialinforules@cftc.gov. Reference should be made to

    ``Delegations of Authority to Disclose Confidential Information.''

    Comments may also be submitted through the Federal eRulemaking Portal

    at http://www.regulations.gov. All comments must be in English.

    FOR FURTHER INFORMATION CONTACT: Donald Heitman, Senior Special

    Counsel, Division of Market Oversight, Commodity Futures Trading

    Commission, Three Lafayette Centre, 1155 21st Street, NW., Washington,

    DC 20581. Telephone: (202) 418-5041. E-mail: dheitman@cftc.gov.

    SUPPLEMENTARY INFORMATION:

    I. Background

    A. The Commodity Exchange Act's Confidentiality Provisions

    Section 8(a) of the Commodity Exchange Act (``CEA'' or ``Act'')

    prohibits the Commission from disclosing information that would

    separately disclose the business transactions or market positions of

    any person or trade secrets or names of customers.\1\ Despite this

    general prohibition, the CEA recognizes the need to share confidential

    information with registered entities and certain other self-regulatory

    bodies under specified circumstances. Section 8a(6) of the Act

    therefore authorizes the Commission to communicate to the proper

    officials of ``registered entities'' \2\ and other self-regulatory

    bodies \3\ the full facts regarding a particular transaction or market

    operation, ``which in the judgment of the Commission disrupts or tends

    to disrupt any market or is otherwise harmful or against the best

    interests of producers, consumers, or investors, or which is necessary

    or appropriate to effectuate the purposes of [the] Act.'' Disclosure

    under this provision is subject to the caveat that information

    furnished by the Commission may not be disclosed by the receiving

    registered entity, registered futures association or self-regulatory

    organization except in a self-regulatory action or proceeding.

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    \1\ 7 U.S.C. 12(a).

    \2\ Section 1a(29) of the Act defines the term registered entity

    to mean: ``(A) a board of trade designated as a contract market

    under section 5; (B) a derivatives transaction execution facility

    registered under section 5a; (C) a derivatives clearing organization

    registered under section 5b; (D) a board of trade designated as a

    contract market under section 5f; and (E) with respect to a contract

    that the Commission determines is a significant price discovery

    contract, any electronic trading facility on which the contract is

    executed or traded.''

    \3\ In addition to ``registered entities,'' the Commission is

    authorized to share confidential information with registered futures

    associations (see section 17 of the Act, 7 U.S.C. 21) and self-

    regulatory organizations as defined in section 3(a)(26) of the

    Securities Exchange Act of 1934. 7 U.S.C. 12a(6).

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    Commission regulation 140.72 implements these statutory provisions,

    delegates to specified senior staff the authority to make disclosures

    to ``a contract market, registered futures association or self-

    regulatory organization,'' and establishes the standards and protocols

    governing such disclosures. However, regulation 140.72 has never been

    amended to replace the reference to ``contract market'' with a

    reference to the more inclusive defined term, ``registered entity,''

    which includes not only designated contract markets, but several other

    types of entities as well (see note 2 above). The term, ``registered

    entity,'' was added to the Act by the Commodity Futures Modernization

    Act of 2000 (``CFMA'').\4\ The registered entity definition was

    subsequently expanded by the CFTC Reauthorization Act of 2008 (``2008

    Reauthorization Act''),\5\ which incorporated electronic trading

    facilities trading significant price discovery contracts into the

    registered entity definition as section 1a(29)(E).

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    \4\ Public Law 106-554, 114 Stat. 2763 (2000).

    \5\ Incorporated as Title XIII of the Food, Conservation and

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

    2008).

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    The CEA also recognizes the need to share confidential information

    with other Federal or state regulatory authorities, acting within the

    scope of their jurisdiction, as well as foreign futures authorities,

    and in section 8(e) authorizes the Commission to make such disclosures

    on request, provided the Commission is satisfied that the information

    will not be disclosed except in connection with an action or proceeding

    brought under the laws governing the receiving authority, to which that

    receiving authority is a party. Commission regulation 140.73 implements

    the provisions of CEA section 8(e), delegates to specified senior staff

    the authority to make disclosures and establishes the standards and

    protocols governing disclosure to a requesting regulator.

    As discussed below, the principal amendments to regulation 140.72

    are being proposed: (1) To conform the Commission's rule to the CEA, as

    amended by the CFMA and the 2008 Reauthorization Act, by applying the

    regulation to ``registered entities;'' (2) to require that registered

    entities update their lists of confidential data recipients on an

    annual basis and notify the Commission within 10 business days of any

    changes to the list; and (3) to clarify that confidential information

    provided by the Commission to registered entities

    [[Page 15636]]

    may only be used for market surveillance, audit, investigative or rule

    enforcement responsibilities of the registered entity. The Commission

    additionally is proposing technical amendments to both regulations

    140.72 and 140.73.

    B. Part 38 of the Commission's Regulations

    As noted above, by its terms, regulation 140.72 includes procedural

    requirements for DCMs that relate to the receipt and use of information

    furnished by the CFTC.\6\ As a result of the passage of the CFMA, the

    Commission adopted regulations that exempted DCMs from all Commission

    regulations that were not specifically reserved in regulation 38.2.

    Regulation 140.72 was not specifically reserved in regulation 38.2. The

    Commission, however, believes that regulation 140.72 (both in its

    current form and as proposed to be amended herein) contains procedural

    safeguards that are intended to protect furnished information from

    improper use and disclosure. In that regard, the Commission attaches

    particular importance to the requirement that registered entities

    (including DCMs) must formally identify the officials within the

    organization who are specifically authorized to receive information

    from Commission staff and update that contact information annually. The

    Commission therefore proposes to add regulation 140.72 to the list of

    regulations reserved in regulation 38.2.

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    \6\ The amendments proposed herein would not alter those

    requirements since the amendments would replace the term, ``contract

    market,'' with the term, ``registered entity,'' which by definition

    includes contract markets.

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    II. Discussion

    A. Amendments Necessitated by the CFMA and the CFTC Reauthorization Act

    of 2008

    The 2008 Reauthorization Act directs the CFTC to extend its

    regulatory oversight to the trading of significant price discovery

    contracts (``SPDCs'') on exempt commercial markets (``ECMs'') and,

    among other statutory amendments, adds ECMs with SPDCs to the

    definition of ``registered entity'' in section 1(a)(29) of the CEA.\7\

    Accordingly, with respect to a contract that the Commission determines

    is a SPDC, the ECM on which it is traded or executed becomes a

    registered entity subject to all the provisions of the CEA applicable

    to registered entities--including section 8a(6) of the Act. Consistent

    with this statutory change, the proposed amendments to regulation

    140.72 would make its provisions applicable to ``registered entities''

    and would permit staff to disclose confidential information to ECMs

    insofar as the disclosures relate to the ECM's SPDCs.

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    \7\ As noted above, the 2008 Reauthorization Act added the

    following provision to section 1(a)(29)'s definition of registered

    entity: ``(E) with respect to a contract that the Commission

    determines is a significant price discovery contract, any electronic

    trading facility on which the contract is executed or traded.'' 7

    U.S.C. 1(a)(29)(E).

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    Regulation 140.72(b) provides that disclosures shall only be made

    to a contract market, registered futures association or self-regulatory

    organization official who is named in a list filed with the Commission

    by the chief executive officer of the entity. By amending paragraph (b)

    to refer to ``registered entities'' (instead of ``contract markets'')

    the proposed amendments would apply the disclosure rules to all such

    registered entities, including, among others, derivatives clearing

    organizations (``DCOs'') and ECMs with respect to their SPDCs. Thus,

    for example, all registered entities would be required to provide to

    the Commission a list of officials within their organization authorized

    to receive disclosures of confidential information. The proposed rules

    would also require that the lists of officials authorized to receive

    disclosures must be updated annually. Finally, the proposed amendments

    would clarify that the chief executive officer of the registered entity

    must notify the Commission within ten business days of any additions or

    deletions to the list.

    B. Amendments Regarding the Use of Confidential Information

    Recently, questions have arisen regarding the potential use of

    confidential information provided by the Commission to DCMs. In

    particular, DCM officials have inquired as to whether they might be

    allowed to use that information to assess the current composition of a

    given market with an eye to developing additional types of contracts.

    Consistent with the Section 8a(6), these proposed rules clarify that

    confidential information provided by the Commission to registered

    entities (including DCMs) can only be used for their market

    surveillance, audit, investigative or rule enforcement

    responsibilities, which do not include business development purposes.

    The Commission solicits comments regarding whether similar restrictions

    should be applied to confidential information generated internally by a

    registered entity.\8\ In addition, registered entities should review

    their procedures for the handling of confidential information from the

    Commission to ensure that persons handling such information are

    properly ``walled off'' from the rest of the organization.

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    \8\ For example, Part 17 of the Commission's regulations

    requires that clearing members, FCMs, and foreign brokers file daily

    large trader reports with the Commission. The Kansas City Board of

    Trade (KCBT) and the Minneapolis Grain Exchange (MGX) rely on

    receiving daily transmissions of large trader reports from the

    Commission for monitoring speculative position limits and reportable

    positions. The remaining DCMs have adopted their own large trader

    reporting rules and independently collect large trader reports.

    Under this proposed rule, KCBT and MGX would be prohibited from

    using the confidential large trader reports they receive from the

    Commission for anything other than market surveillance, audit,

    investigative or rule enforcement purposes. DCMs that independently

    collect large trader reports would not be subject to the same

    prohibitions because they do not receive the data from the

    Commission.

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    C. Technical and Conforming Amendments

    Regulations 140.72(a) and 140.73(a) currently list, by title, a

    large number of senior staff members to whom the Commission delegates

    authority to disclose confidential information to the various

    regulatory and self-regulatory authorities listed in those respective

    regulations. Many of these titles have been rendered obsolete by

    subsequent CFTC organizational changes. In order to simplify the

    regulations and minimize the need for further regulatory amendments to

    conform to future organizational changes, the proposed regulations

    would delegate the authority to disclose confidential information to

    the heads of the major Commission Divisions or Offices involved and

    give those individuals the authority to sub-delegate that authority to

    such other employees of their respective Divisions or Offices as they

    may designate from time to time.

    As noted above, regulation 140.73 delegates to specified senior

    staff the authority to disclose confidential information to United

    States, state and foreign government agencies and to foreign futures

    authorities. Regulation 140.73(b) currently requires that disclosures

    made pursuant to this section must be made with the concurrence of the

    Director of the Division of Enforcement or his or her designee. For

    efficiency, the Commission proposes to delete paragraph (b) of

    regulation 140.73.

    The CFMA added a number of new definitions to section 1a of the

    CEA. As a result, the definition of ``foreign futures authority,''

    formerly found in section 1a(10) of the CEA, has been renumbered as

    section 1(a)(18). The Commission proposes a conforming amendment to

    regulation 140.73(a)(3),

    [[Page 15637]]

    which is applicable to foreign futures authorities, to correctly

    identify the definitional section.

    III. Related Matters

    A. Cost Benefit Analysis

    Section 15(a) of the CEA requires the Commission to consider the

    costs and benefits of its actions before issuing new regulations under

    the Act. Section 15(a) does not require the Commission to quantify the

    costs and benefits of new regulations or to determine whether the

    benefits of adopted regulations outweigh their costs. Rather, section

    15(a) requires the Commission to consider the costs and benefits of the

    subject regulations 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 the market for

    listed derivatives; (3) price discovery; (4) sound risk management

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

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

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

    not withstanding its costs, a particular regulation is necessary or

    appropriate to protect the public interest.

    As relevant here, the proposed amendments would extend the

    information-sharing provisions of regulation 140.72 to registered

    entities, including DCOs and exempt commercial markets with respect to

    their SPDCs, among others. The authority and benefits of the provisions

    regarding disclosure of confidential information derive from a

    determination that the transaction or market operation to be disclosed

    disrupts or tends to disrupt any market; or is otherwise harmful or

    against the best interests of producers, consumers, or investors; or

    that disclosure is necessary or appropriate to effectuate the purposes

    of the CEA. The other proposed amendments would clarify, consistent

    with the language of Section 8a(6) and regulation 140.72(d), that

    registered entities could only use the information for their market

    surveillance, audit, investigative or rule enforcement responsibilities

    and would enhance the reliability of the disclosure system by requiring

    registered entities to update their lists of confidential data

    recipients on an annual basis and to notify the Commission of any

    changes to such lists in a timely fashion. The costs associated with

    these proposed amendments are minimal. Extending the regulations'

    confidential disclosure requirements to registered entities, including

    ECMs with SPDCs, while clarifying the confidentiality protections and

    improving the reliability of the disclosure system, enhances the

    Commission's ability to prevent market disruptions and protect the

    interests of producers, consumers and the public.

    B. Regulatory Flexibility Act

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

    requires that agencies, in proposing rules, consider the impact of

    those rules on small entities. These amendments would extend CFTC

    staff's ability to share relevant information with additional

    registered entities, including ECMs with SPDCs, would further protect

    the confidentiality of disclosed information by requiring that

    registered entities could only use the information for their market

    surveillance, audit, investigative or rule enforcement responsibilities

    and would enhance the reliability of the disclosure system by requiring

    registered entities to update their lists of confidential data

    recipients on an annual basis. The proposed rules otherwise would make

    technical and conforming changes to rules 140.72 and 140.73. The

    Commission has previously determined that DCMs, derivatives transaction

    execution facilities (``DTEFs''), ECMs (with or without SPDCs) and DCOs

    are not small entities for purposes of the RFA.\9\ Similarly, the

    Commission believes that the other type of registered entity listed in

    section 1a(29) of the Act, a board of trade designated as a contract

    market under section 5f,\10\ is likewise not a small entity for

    purposes of the RFA. Accordingly, the Commission does not expect that

    these amendments will have a significant impact on a substantial number

    of small entities. For this reason, and pursuant to section 3(a) of the

    RFA, 5 U.S.C. 605(b), the Chairman, on behalf of the Commission, hereby

    certifies that these regulations will not have a significant economic

    impact on a substantial number of small entities. Nevertheless, the

    Commission solicits public comments as to whether a DTEF, a DCM

    designated under section 5f of the Act or an ECM with a SPDC should be

    considered a small entity for purposes of the RFA.

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    \9\ See: 47 FR 18618 at 18619 (April 30, 1982) with respect to

    DCMs; 66 FR 42255 at 42268 (August 10, 2001) with respect to DTEFs

    and ECMs; and 66 FR 45604 at 45609 (August 29, 2001) with respect to

    DCOs.

    \10\ Section 5f deals with ``Designation of Securities Exchanges

    and Associations as Contract Markets.''

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    C. Paperwork Reduction Act

    The Paperwork Reduction Act of 1980 (``PRA''), 44 U.S.C. 3501 et

    seq., imposes certain requirements on Federal agencies, including the

    Commission, in connection with conducting or sponsoring any collection

    of information as defined by the PRA. Rules 140.72 and 140.73 are not

    associated with an information collection as defined by the PRA.

    Accordingly, the Commission certifies that, for purposes of the PRA,

    these proposed amendments would not impose any new reporting or

    recordkeeping requirements.

    List of Subjects

    17 CFR Part 38

    Block transactions, Commodity futures, Contract markets,

    Transactions off the centralized market, Reporting and recordkeeping

    requirements.

    17 CFR Part 140

    Authority delegations (Government agencies), Organization and

    functions (Government agencies).

    Accordingly, the Commission proposes to amend 17 CFR parts 38 and

    140 as follows:

    PART 38--DESIGNATED CONTRACT MARKETS

    1. The authority citation for part 38 is revised to read as

    follows:

    Authority: 7 U.S.C. 2, 5, 6, 6c, 7, and 12a, as amended by the

    Commodity Futures Modernization Act of 2000, Appendix E of Pub. L.

    106-554, 114 Stat. 2763 (2000).

    2. Section 38.2 is revised to read as follows:

    Sec. 38.2 Exemption.

    Agreements, contracts, or transactions traded on a designated

    contract market under Section 5 of the Act, the contract market and the

    contract market's operator are exempt from all Commission regulations

    for such activity, except for the requirements of this Part 38 and

    Sec. Sec. 1.3, 1.12(e), 1.31, 1.37(c)-(d), 1.38, 1.52, 1.59(d), 1.60,

    1.63(c), 1.67, 33.10, Part 9, Parts 15 through 21, Part 40, Part 41,

    Sec. 140.72 and Part 190 of this chapter, including any related

    definitions and cross-referenced sections.

    PART 140--ORGANIZATION, FUNCTIONS AND PROCEDURES OF THE COMMISSION

    3. The authority citation for part 140 conitnues to read as

    follows:

    Authority: 7 U.S.C. 2 and 12a.

    4. Section 140.72 is revised to read as follows:

    [[Page 15638]]

    Sec. 140.72 Delegation of authority to disclose confidential

    information to a registered entity, registered futures association or

    self-regulatory organization.

    (a) Pursuant to the authority granted under sections 2(a)(12),

    8a(5) and 8a(6) of the Act, the Commission hereby delegates, until such

    time as the Commission orders otherwise, to the Director of the

    Division of Market Oversight, the Director of the Division of Clearing

    and Intermediary Oversight, the Director of the Division of

    Enforcement, the General Counsel, the Chief Economist and the Director

    of the Office of International Affairs, and to such other employees of

    their respective Divisions and Offices as they may designate from time

    to time, the authority to disclose to an official of any registered

    entity (as defined in section 1a(29) of the Act), registered futures

    association, or self-regulatory organization as defined in section

    3(a)(26) of the Securities Exchange Act of 1934, any information

    necessary or appropriate to effectuate the purposes of the Act,

    including, but not limited to, the full facts concerning any

    transaction or market operation, including the names of the parties

    thereto. This authority to disclose shall be based on a determination

    that the transaction or market operation disrupts or tends to disrupt

    any market or is otherwise harmful or against the best interests of

    producers, consumers, or investors or that disclosure is necessary or

    appropriate to effectuate the purposes of the Act. The authority to

    make such a determination is also delegated by the Commission to the

    Commission employees identified in this section. A Commission employee

    delegated authority under this section may exercise that authority on

    his or her own initiative or in response to a request by an official of

    a registered entity, registered futures association or self-regulatory

    organization.

    (b) Disclosure under this section shall only be made to a

    registered entity, registered futures association or self-regulatory

    organization official who is named in a list filed with the Commission

    by the chief executive officer of the registered entity, registered

    futures association or self-regulatory organization, which sets forth

    the official's name, business address and telephone number. The chief

    executive officer shall provide the Commission with an updated list

    annually, during the first month of the calendar year, and shall

    thereafter notify the Commission within 10 business days of any

    deletions or additions to the list of officials authorized to receive

    disclosures under this section. The original list, each annual update,

    and any supplemental list required by his paragraph shall be filed with

    the Secretary of the Commission, and a copy thereof shall also be filed

    with the Regional Administrator for the region in which the registered

    entity is located or in which the registered futures association or

    self-regulatory organization has its principal office.

    (c) Notwithstanding the provisions of paragraph (a) of this

    section, in any case in which a Commission employee delegated authority

    under this section believes it appropriate, he or she may submit to the

    Commission for its consideration the question of whether disclosure of

    information should be made. Nothing in this section shall prevent the

    Commission from exercising the authority delegated in paragraph (a) of

    this section.

    (d) For purposes of this section, the term ``official'' shall mean

    any officer or member of the staff, management or a committee of a

    registered entity, registered futures association or self-regulatory

    organization who is specifically charged with market surveillance,

    audit, investigative or rule enforcement responsibilities, or their

    duly authorized representative or agent, who is named on the list filed

    pursuant to paragraph (b) of this section or any supplement thereto.

    (e) For the purposes of this section, the term ``self-regulatory

    organization'' shall mean the same as that defined in section 3(a)(26)

    of the Securities Exchange Act of 1934.

    (f) Any registered entity, registered futures association or self-

    regulatory organization receiving information from the Commission under

    these provisions may use such information only for its market

    surveillance, audit, investigative or rule enforcement responsibilities

    and shall not disclose such information, except that disclosure may be

    made in any self-regulatory action or proceeding.

    5. Section 140.73 is revised to read as follows:

    Sec. 140.73 Delegation of authority to disclose information to United

    States, State, and foreign government agencies and foreign futures

    authorities.

    (a) Pursuant to sections 2(a)(12), 8a(5) and 8(e) of the Act, the

    Commission hereby delegates, until such time as the Commission orders

    otherwise, to the General Counsel, the Director of the Division of

    Enforcement, the Director of the Division of Market Oversight, the

    Director of the Division of Clearing and Intermediary Oversight, the

    Chief Economist and the Director of the Office of International

    Affairs, and to such other employees of their respective Divisions and

    Offices as they may designate from time to time, the authority to

    furnish information in the possession of the Commission obtained in

    connection with the administration of the Act, upon written request,

    to:

    (1) Any department or agency of the United States, including for

    this purpose an independent regulatory agency, acting within the scope

    of its jurisdiction;

    (2) Any department or agency of any State or any political

    subdivision thereof, acting within the scope of its jurisdiction; or

    (3) Any foreign futures authority, as that term is defined in

    section 1a(18) of the Act, or any department or agency of any foreign

    government or political subdivision thereof, acting within the scope of

    its jurisdiction, provided that the Commission official making the

    disclosure is satisfied that the information will not be disclosed

    except in connection with an adjudicatory action or proceeding brought

    under the laws of such foreign government or political subdivision to

    which such foreign government or political subdivision or any

    department or agency thereof, or foreign futures authority is a party.

    (b) In furnishing information under this delegation pursuant to

    paragraphs (a)(1) and (2) of this section, the Commission official

    making the disclosure shall remind the department or agency involved

    that section 8(e) of the Act prohibits the disclosure by such

    department or agency of information that would separately disclose the

    business transactions or market positions of any person and trade

    secrets or names of customers except in an action or proceeding under

    the laws of the United States, the State, or a political subdivision

    thereof to which the department or the agency of either the state or

    political subdivision, the Commission, or the United States is a party.

    (c) This delegation shall not affect any other delegation that the

    Commission has made or may make, which authorizes any other officer or

    employee of the Commission to furnish information to governmental

    bodies on the Commission's behalf.

    (d) Notwithstanding the provisions of paragraph (a) of this

    section, in any case in which any employee delegated authority therein

    believes it appropriate, the matter may be submitted to the Commission

    for its consideration. Nothing in this section shall prohibit the

    Commission from exercising the authority delegated in paragraph (a) of

    this section.

    [[Page 15639]]

    Issued in Washington, DC, on March 22, 2010, by the Commission.

    David A. Stawick,

    Secretary of the Commission.

    [FR Doc. 2010-6813 Filed 3-29-10; 8:45 am]

    BILLING CODE 6351-01-P

    Last Updated: March 30, 2010



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