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Proposed Rule

Confidential Information and Commission Records and Information

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Information about this document as published in the Federal Register.

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Commodity Futures Trading Commission.


Extension of comment period.


On August 1, 2008, the Commission published in the Federal Register a notice of proposed rulemaking to amend the procedures under which designated contract markets, derivatives clearing organizations and derivatives transaction execution facilities (collectively, “registered entities”) may request confidential treatment for products and rules submitted via certification procedures or for Commission review and approval pursuant to parts 40 and 41 of the Commission's regulations.[1] Comments on the proposal originally were due on September 2, 2008. The Commission is extending the comment period in order to give interested persons additional time to comment on the proposed amendments.


Comments must be received by September 17, 2008.


Comments may be submitted by any of the following methods:

  • Federal eRulemaking Portal:
  • Mail/Hand Deliver: David Stawick, Secretary of the Commission, Commodity Futures Trading Commission, Three Lafayette Centre, 1155 21st Street, NW., Washington, DC 20581.
  • E-mail:
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Susan Nathan, Senior Special Counsel, (202) 418-5133; Division of Market Oversight, Commodity Futures Trading Commission, Three Lafayette Centre, 1155 21st Street, NW., Washington, DC 20581. E-mail:

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On August 1, 2008, the Commission published and sought public comment on proposed amendments to part 40 of the Commission's regulations to establish the exclusive procedure to be followed by registered entities when requesting confidential treatment for information required to be filed under parts 40 and 41, and to clarify the circumstances under which requests for confidential treatment will not be considered. Most confidential treatment requests are made pursuant to Commission regulation 145, 17 CFR 145, which implements the Freedom of Information Act, 5 U.S.C. 552 (FOIA). The FOIA provides generally that the public has a right of access to agency records except to the extent that the records, or portions of them, are protected from disclosure by one or more of nine exemptions.

A registered entity requesting confidential treatment typically invokes FOIA exemption (b)(4) on the ground that release of its information will cause it commercial or competitive harm. Although registered entities are required to make public much of the information required by parts 40 and 41 of the Commission's regulations, registered entities frequently request confidential treatment for filings submitted under these parts. The confidential treatment procedures established by Commission regulation 145.9 provide that requests for confidentiality are not considered on the merits unless and until a FOIA request is received for the specific Start Printed Page 51962material. Accordingly, the Commission frequently is unable to act on requests for confidential treatment of information it believes should be made publicly available. The proposed amendments are intended to permit staff to promptly resolve confidentiality issues in connection with material submitted pursuant to parts 40 and 41 by creating, as permitted by part 145, a separate procedure from that specified in regulation 145.9. The proposed procedure would not be triggered by a FOIA request but instead would require that registered entities desiring confidential treatment for information submitted under parts 40 and 41 simultaneously file a detailed written justification in support of such a request. Commission staff would make an initial determination to grant or deny confidential treatment. The proposed amendments to part 40 provide a process under which a registered entity may appeal the staff's decision and further provide that in the event of a subsequent FOIA request, both the requester and the submitter would have the appeal rights specified in Commission regulation 145.9.

The comment period closes on September 2, 2008. By letter dated August 29, 2008, The Chicago Mercantile Exchange requested additional time to address the issues raised in the proposed rulemaking. In order to encourage the submission of meaningful comments and to assure that all views are considered in its final determination, the Commission has determined to grant the request and to give full consideration to any comment received during the extension period. Accordingly, the comment period for the Commission's proposed amendments to parts 40, 41 and 145 is hereby extended to September 17, 2008.

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Issued in Washington, DC on September 2, 2008, by the Commission.

Sauntia S. Warfield,

Staff Assistant.

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1.  73 FR 44939 (Aug. 1, 2008).

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[FR Doc. E8-20684 Filed 9-5-08; 8:45 am]