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  • FR Doc E9-24390[Federal Register: October 9, 2009 (Volume 74, Number 195)]


    [Page 52210-52212]

    From the Federal Register Online via GPO Access []




    Notice of Intent, Pursuant to the Authority in Section 2(h)(7) of

    the Commodity Exchange Act and Commission Rule 36.3(c)(3), To Undertake

    a Determination Whether the PG&E Citygate Financial Basis Contract,

    Offered for Trading on the IntercontinentalExchange, Inc., Performs a

    Significant Price Discovery Function

    AGENCY: Commodity Futures Trading Commission.

    ACTION: Notice of action and request for comment.


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

    ``Commission'') is undertaking a review to determine whether the PG&E

    Citygate Financial Basis (``PGE'') contract, offered for trading 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. Authority for this action is found in section 2(h)(7) of the

    CEA and Commission rule 36.3(c) promulgated thereunder. In connection

    with this evaluation, the Commission invites comment from interested


    DATES: Comments must be received on or before October 26, 2009.

    ADDRESSES: Comments may be submitted by any of the following methods:

    Follow the instructions for submitting comments. Federal

    eRulemaking Portal:

    E-mail: Include PG&E Citygate

    Financial Basis (PGE) Contract in the subject line of the message.

    Fax: (202) 418-5521

    Mail: Send to David A. Stawick, Secretary, Commodity

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

    NW., Washington, DC 20581

    Courier: Same as mail above.

    All comments received will be posted without change to http://

    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:; or Susan Nathan,

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

    Telephone: (202) 418-5133. E-mail:


    I. Introduction

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

    provisions of the CFTC Reauthorization Act of 2008 (``Reauthorization

    Act'') \1\ which subjects ECMs with significant price discovery

    contracts (``SPDCs'') to self-regulatory and reporting requirements, as

    well as certain Commission oversight authorities, with respect to those

    contracts. Among other things, these rules and rule amendments revise

    the information-submission requirements applicable to ECMs, establish

    procedures and standards by which the Commission will determine whether

    an ECM contract performs a significant price discovery function, and

    provide guidance with respect to compliance with nine statutory core

    principles applicable to ECMs with SPDCs. These rules became effective

    on April 22, 2009.


    \1\ 74 FR 12178 (Mar. 23, 2009); these rules became effective on

    April 22, 2009.


    In determining whether an ECM's contract is or is not a SPDC, the

    Commission will evaluate the contract's material liquidity, price

    linkage to other contracts, potential for arbitrage with other

    contracts traded on designated contract markets or derivatives

    transaction execution facilities, use of the ECM contract's prices to

    execute or settle other transactions, and other factors.

    In order to facilitate the Commission's identification of possible

    SPDCs, Commission rule 36.3(c)(2) requires that an ECM operating in

    reliance on section 2(h)(3) promptly notify the Commission and provide

    supporting information or data concerning any contract: (i) That

    averaged five trades per day or more over the most recent calendar

    quarter; and (ii)(A) for which the ECM sells price information

    regarding the contract to market participants or industry publications;

    or (B) whose daily closing or settlement prices on 95 percent or more

    of the days in the most recent quarter were within 2.5 percent of the

    contemporaneously determined closing, settlement, or other daily price

    of another agreement.

    II. Determination of a SPDC

    A. The SPDC Determination Process

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

    Commission makes and announces its determination on whether a specific

    ECM contract serves a significant price

    [[Page 52211]]

    discovery function. Under those procedures, the Commission will publish

    a notice in the Federal Register that it intends to undertake a

    determination as to whether the specified agreement, contract, or

    transaction performs a significant price discovery function and to

    receive written data, views, and arguments relevant to its

    determination from the ECM and other interested persons.\2\ After

    prompt consideration of all relevant information,\3\ the Commission

    will, within a reasonable period of time after the close of the comment

    period, issue an order explaining its determination. Following the

    issuance of an order by the Commission that the ECM executes or trades

    an agreement, contract, or transaction that performs a significant

    price discovery function, the ECM must demonstrate, with respect to

    that agreement, contract, or transaction, compliance with the core

    principles under section 2(h)(7)(C) of the CEA \4\ and the applicable

    provisions of Part 36. If the Commission's order represents the first

    time it has determined that one of the ECM's contracts performs a

    significant price discovery function, the ECM must submit a written

    demonstration of its compliance with the core principles within 90

    calendar days of the date of the Commission's order. For each

    subsequent determination by the Commission that the ECM has an

    additional SPDC, the ECM must submit a written demonstration of its

    compliance with the core principles within 30 calendar days of the

    Commission's order.


    \2\ The Commission may commence this process on its own

    initiative or on the basis of information provided to it by an ECM

    pursuant to the notification provisions of Commission rule


    \3\ Where appropriate, the Commission may choose to interview

    market participants regarding their impressions of a particular

    contract. Further, while they may not provide direct evidentiary

    support with respect to a particular contract, the Commission may

    rely for background and context on resources such as its October

    2007 Report on the Oversight of Trading on Regulated Futures

    Exchanges and Exempt Commercial Markets (``ECM Study''). http://


    \4\ 7 U.S.C. 2(h)(7)(C).


    B. PG&E Citygate Financial Basis Contract

    The PGE contract is cash settled based on the difference between

    the bidweek price index for a particular calendar month at the PG&E

    Citygate hub, as published by Intelligence Press, Inc. (IPI), in NGI's

    Bidweek Survey, 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 bidweek price is

    computed from fixed-price, bilateral transactions executed during the

    last five business days of a given month, where the transactions

    specify the delivery of natural gas at the PG&E hub during the

    following calendar month. The price index is computed as the volume-

    weighted average of the applicable natural gas transactions. Bidweek

    prices are published on the first business day of the month in which

    the gas flows. The size of the PGE contract is 2,500 mmBtu, and the

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

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


    Based upon a required quarterly notification filed on July 27, 2009

    (mandatory under Rule 36.3(c)(2)), the ICE reported that, with respect

    to its PGE contract, the total number of trades was 1,142 in the second

    quarter of 2009, resulting in a daily average of 17.8 trades. During

    the same period, the PGE contract had a total trading volume of 99,418

    contracts and an average daily trading volume of 1,553.4 contracts.

    Moreover, the open interest as of June 30, 2009, was 150,299 contracts.

    It appears that the PGE contract may satisfy the material

    liquidity, price linkage, and material price reference factors for SPDC

    determination. With respect to material liquidity, trading in the ICE

    PGE contract averaged more than 1,500 contracts on a daily basis, with

    more than 15 separate transactions each day. In addition, the open

    interest in the subject contract was substantial. In regard to price

    linkage, the final settlement price of the PGE contract is based, in

    part, on the final settlement price of the NYMEX's physically-delivered

    natural gas contract, where the NYMEX is registered with the Commission

    as a designated contract market (``DCM''). In terms of material price

    reference, the ICE maintains exclusive rights over IPI's bidweek price

    indices. As a result, no other exchange can offer such a basis contract

    based on IPI's PG&E bidweek index. While other third-party price

    providers produce natural gas price indices for a variety of trading

    centers, those indices may not have the same values or quality as IPI's

    price indices; each company's bidweek indices are based on transactions

    that are consummated during the last five days of the month prior to

    delivery and are voluntarily submitted by traders. In addition, the 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, the ICE

    offers ``West Gas End of Day'' and ``OTC Gas End of Day'' data packages

    with access to all price data or just 12, 24, 36, or 48 months of

    historical data.

    III. Request for Comment

    In evaluating whether an ECM's agreement, contract, or transaction

    performs a significant price discovery function, section 2(h)(7) of the

    CEA directs the Commission to consider, as appropriate, four specific

    criteria: Price linkage, arbitrage, material price reference, and

    material liquidity. As it explained in Appendix A to the Part 36

    rules,\5\ the Commission, in making SPDC determinations, will apply and

    weigh each factor, as appropriate, to the specific contract and

    circumstances under consideration.


    \5\ 17 CFR Part 36, Appendix A.


    As part of its evaluation, the Commission will consider the written

    data, views, and arguments from any ECM that lists the potential SPDC

    and from any other interested parties. Accordingly, the Commission

    requests comment on whether the ICE's PGE contract performs a

    significant price discovery function. Commenters' attention is directed

    particularly to Appendix A of the Commission's Part 36 rules for a

    detailed discussion of the factors relevant to a SPDC determination.

    The Commission notes that comments which analyze the contract in terms

    of these factors will be especially helpful to the determination

    process. In order to determine the relevance of comments received, the

    Commission requests that commenters explain in what capacity are they

    knowledgeable about the subject contract.

    IV. Related Matters

    A. Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (``PRA'') \6\ imposes certain

    requirements on federal agencies, including the Commission, in

    connection with their conducting or sponsoring any collection of

    information, as defined by the PRA. Certain provisions of final

    Commission rule 36.3 impose new regulatory and reporting requirements

    on ECMs, resulting in information collection requirements within the

    meaning of the PRA; OMB previously has approved and assigned OMB

    control number 3038-0060 to this collection of information.


    \6\ 44 U.S.C. 3507(d).


    [[Page 52212]]

    B. Cost-Benefit Analysis

    Section 15(a) of the CEA \7\ requires the Commission to consider

    the costs and benefits of its actions before issuing an order under the

    Act. By its terms, section 15(a) does not require the Commission to

    quantify the costs and benefits of such an order or to determine

    whether the benefits of such an order outweigh its costs; rather, it

    requires that the Commission ``consider'' the costs and benefits of its

    action. Section 15(a) further specifies that the costs and benefits

    shall be evaluated in light of five broad areas of market and public

    concern: (1) Protection of market participants and the public; (2)

    efficiency, competitiveness, and financial integrity of futures

    markets; (3) price discovery; (4) sound risk management practices; and

    (5) other public interest considerations.


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


    The bulk of the costs imposed by the requirements of Commission

    Rule 36.3 relate to significant and increased information-submission

    and reporting requirements adopted in response to the Reauthorization

    Act's directive that the Commission take an active role in determining

    whether contracts listed by ECMs qualify as SPDCs. The enhanced

    requirements for ECMs will permit the Commission to acquire the

    information it needs to discharge its newly-mandated responsibilities

    and to ensure that ECMs with SPDCs are identified as entities with the

    elevated status of registered entity under the CEA and are in

    compliance with the statutory terms of the core principles of section

    2(h)(7)(C) of the Act. The primary benefit to the public is to enable

    the Commission to discharge its statutory obligation to monitor for the

    presence of SPDCs and extend its oversight to the trading of SPDCs.

    Issued in Washington, DC, on October 5, 2009 by the Commission.

    David A. Stawick,

    Secretary of the Commission.

    [FR Doc. E9-24390 Filed 10-8-09; 8:45 am]

    BILLING CODE 6351-01-P

    Last Updated: October 9, 2009