Federal Register / Vol. 69, No. 224 / Monday, November 22, 2004 / Rules and Regulations 67811

May I Request an Alternative Method of 

Compliance? 

(f) You may request a different method of 

compliance or a different compliance time 

for this AD by following the procedures in 14 

CFR 39.19. Unless FAA authorizes otherwise, 

send your request to your principal 

inspector. The principal inspector may add 

comments and will send your request to the 

Manager, Fort Worth Aircraft Certification 

Office, FAA. For information on any already 

approved alternative methods of compliance, 

contact Garry D. Sills, Aerospace Engineer, 

Rotorcraft Directorate, ASW–150, 2601 

Meacham Blvd., Fort Worth, Texas 76193; 

telephone: (817) 222–5154; facsimile: (817) 

222–5960. 

(1) Alternative methods of compliance 

(AMOC) approved for AD 91–03–15 are not 

considered approved as an AMOC for this 

AD. 

(2) You may have already done the actions 

of this AD per an AMOC from 91–03–15. If 

so, no further action is required. 

Does This AD Incorporate Any Material by 

Reference? 

(g) You must do the actions required by 

this AD following the instructions in Mooney 

Airplane Company, Inc. Service Bulletin 

M20–283A, dated March 30, 2004. The 

Director of the Federal Register approved the 

incorporation by reference of this service 

bulletin in accordance with 5 U.S.C. 552(a) 

and 1 CFR part 51. To get a copy of this 

service information, contact Mooney 

Airplane Company, Inc., Louis Schreiner 

Field, Kerrville, Texas 78028; telephone: 

(830) 896–6000. To review copies of this 

service information, go to the National 

Archives and Records Administration 

(NARA). For information on the availability 

of this material at NARA, go to: http://

www.archives.gov/federal_register/

code_of_federal_regulations/

ibr_locations.html or call (202) 741–6030. To 

view the AD docket, go to the Docket 

Management Facility; U.S. Department of 

Transportation, 400 Seventh Street, SW., 

Nassif Building, Room PL–401, Washington, 

DC 20590–001 or on the Internet at http://

dms.dot.gov. The docket number is FAA–

2004–19618.

Issued in Kansas City, Missouri, on 

November 12, 2004. 

David R. Showers, 

Acting Manager, Small Airplane Directorate, 

Aircraft Certification Service.

[FR Doc. 04–25595 Filed 11–19–04; 8:45 am] 

BILLING CODE 4910–13–P

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration 

14 CFR Part 71

[Docket No. FAA–2004–19325; Airspace 

Docket No. 04–ACE–54] 

Modification of Class E Airspace; 

Dodge City, KS

AGENCY: Federal Aviation 

Administration (FAA), DOT.

ACTION: Direct final rule; correction.

SUMMARY: This action corrects a direct 

final rule; request for comments that 

was published in the Federal Register

on Tuesday, October 19, 2004, (69 FR 

61439) (FR Doc. 04–23387). It corrects 

errors in the legal descriptions of the 

Class E airspace area designated as a 

surface area and the Class E airspace 

area extending upward from 700 feet 

above the surface at Dodge City, KS.

DATES: This direct final rule is effective 

on 0901 UTC, January 20, 2005.

FOR FURTHER INFORMATION CONTACT:

Kathy Randolph, Air Traffic Division, 

Airspace Branch, ACE–520C, DOT 

Regional Headquarters Building, Federal 

Aviation Administration, 901 Locust, 

Kansas City, MO 64106; telephone: 

(816) 329–2525.

SUPPLEMENTARY INFORMATION: 

History 

Federal Register document 04–23387, 

published on Tuesday, October 19, 2004 

(69 FR 61439), modified the Class E 

airspace area designated as a surface 

area and the Class E airspace area 

extending upward from 700 feet above 

the surface at Dodge City, KS. The 

modification corrected discrepancies in 

the Dodge City Regional Airport airport 

reference point (ARP) used in the legal 

descriptions, corrected the airspace 

dimensions to protect for diverse 

departures, established an extension to 

the airspace area extending upward 

from 700 feet above the surface and 

brought the legal descriptions of the 

Dodge City, KS Class E airspace areas 

into compliance with FAA Orders 

7400.2E, Procedures for Handling 

Airspace Matters, and 8260.19C, Flight 

Procedures and Airspace. However, the 

Dodge City Regional Airport ARP has 

since been recomputed requiring a 

further revision to the Dodge City, KS 

Class E airspace areas.

■ Accordingly, pursuant to the authority 

delegated to me, the legal descriptions of 

the Class E airspace area designated as a 

surface area and the Class E airspace area 

extending upward from 700 feet above 

the surface at Dodge City, KS, as 

published in the Federal Register on 

Tuesday, October 19, 2004, (69 FR 

61439) (FR Doc. 04–23387) are corrected 

as follows:

PART 71—[CORRECTED]

§ 71.1 [Corrected]

■ On page 61440, Column 2, change the 

third paragraph to read:

‘‘ACE KS E2 Dodge City, KS 

Dodge City Regional Airport, KS 

(Lat. 37°45′53′′ N., long. 99°58′00′′ W.)

Within a 4.2-mile radius of Dodge City 

Regional Airport.’’

■ On page 61440, Column 2, change the 

fifth paragraph to read:

‘‘ACE KS E5 Dodge City, KS 

Dodge City Regional Airport, KS 

(Lat. 37°45′53′′ N., long. 99°58′00′′ W.) 

Dodge City VORTAC 

(Lat. 37°51′02′′ N., long. 100°00′20′′ W.)

That airspace extending upward from 700 

feet above the surface within a 6.7-mile 

radius of Dodge City Regional Airport and 

within 1.9 miles each side of the Dodge City 

VORTAC 160° radial extending from the 6.7-

mile radius of the airport to 17 miles 

southeast of the VORTAC.’’

Issued in Kansas City, MO, on November 

4, 2004. 

Anthony D. Roetzel, 

Acting Area Director, Western Flight Services 

Operations.

[FR Doc. 04–25700 Filed 11–19–04; 8:45 am] 

BILLING CODE 4910–13–M

COMMODITY FUTURES TRADING 

COMMISSION 

17 CFR Parts 37 and 38 

RIN 3038–AC14 

Application Procedures for 

Registration as a Derivatives 

Transaction Execution Facility or 

Designation as a Contract Market

AGENCY: Commodity Futures Trading 

Commission.

ACTION: Final rules.

SUMMARY: The Commodity Futures 

Trading Commission (Commission or 

CFTC) is amending its regulations to 

revise the application and review 

procedures for registration as a 

Derivatives Transaction Execution 

Facility (DTEF) or designation as a 

Contract Market (DCM). The 

amendments eliminate the presumption 

of automatic fast-track review of 

applications and replace it with the 

presumption that all applications will 

be reviewed pursuant to the statutory 

180-day timeframe and procedures 

67812 Federal Register / Vol. 69, No. 224 / Monday, November 22, 2004 / Rules and Regulations 

1 17 CFR 37.5.

2 17 CFR 38.3.

3See 66 FR 42256 (August 10, 2001). The CFMA, 

Appendix E of Pub. L. 106–554, 114 Stat. 2763, 

substantially revised the Commodity Exchange Act, 

7 U.S.C. 1 et seq.

4 17 CFR 38.3(a)(1).

5 17 CFR 37.5(b).

6See 7 U.S.C. 8(a).

7 17 CFR 37.5(d), 38.3(c).

8 17 CFR 37.5(b)(1)(iii).

9 17 CFR 38.3(a)(1)(iii).

10 17 CFR 37.5(b)(1)(v); 38.3(a)(1)(v).

11 17 CFR 37.5(c); 38.3(b).

12 17 CFR 37.5(e).

13 17 CFR 38.3(d).

14 17 CFR 37.5(f); 38.3(e).

15 69 FR 53367 (September 1, 2004).

16Under the current rules, DCM and DTEF 

applications are routinely reviewed under the fasttrack procedures unless the applicant instructs the 

Commission in writing at the time of submission of 

the application or during the review period to 

review the application pursuant to the time 

provisions of and procedures under section 6 of the 

Act. See 17 CFR 37.5(b)(1)(vi); 38.3(a)(1)(vi).

17The Commission has recently proposed 

revisions to Commission Regulation 40.8 to specify 

which portions of an application for registration as 

a DTEF or designation as a DCM will routinely be 

made public. See 69 FR 44981 (July 28, 2004).

18Although the Commission has not yet reviewed 

an application to become registered as a DTEF 

under the fast track procedure, it anticipates that 

such an application would likely require a review 

period similar to that experienced in the review of 

DCM applications. Accordingly, the Commission 

proposed to conform the DTEF expedited review 

period to that applicable to DCMs.

specified in Section 6(a) of the 

Commodity Exchange Act (CEA or Act). 

In lieu of the automatic fast-track review 

(under which applicants were deemed 

to be registered as DTEFs 30 days, or 

designated as DCMs 60 days, after 

receipt of an application), the 

amendments permit applicants to 

request expedited review and to be 

registered as a DTEF or designated as a 

DCM by the Commission not later than 

90 days after the date of receipt of the 

application. The amendments also, 

among other things, more completely 

identify application content 

requirements; provide that review under 

the expedited review procedures may be 

terminated if it appears that the 

application is materially incomplete, 

raises novel or complex issues that 

require additional time for review, or 

has undergone substantive amendment 

or supplementation during the review 

period; reorganize the paragraphs being 

revised; and eliminate duplication. The 

amendments are responsive to the 

Commission’s experience in processing 

applications and reflect administrative 

practices that have been implemented 

since the rules were first adopted.

DATES: Effective December 22, 2004.

FOR FURTHER INFORMATION CONTACT:

Duane C. Andresen, Special Counsel, 

(telephone 202–418–5492, e-mail 

dandresen@cftc.gov), Division of Market 

Oversight, Three Lafayette Centre, 1155 

21st Street, NW., Washington, DC 

20581. This document is also available 

at http://www.regulations.gov.

SUPPLEMENTARY INFORMATION: 

I. Background 

A. Overview 

The Commission adopted the 

application procedures specified in 

Commission Regulations 37.5 1 and 

38.3 2 for boards of trade applying to be 

registered as DTEFs or designated as 

DCMs in 2001 when it first 

implemented the Commodity Futures 

Modernization Act of 2000 (CFMA).3

These procedures presume that an 

application will be submitted and 

reviewed pursuant to a fast-track 

procedure under which a board of trade 

is deemed to be designated as a DCM 60 

days after submitting its application,4 or 

registered as a DTEF 30 days after 

submitting its application,5 unless 

notified otherwise during the respective 

review period. These fast-track review 

periods are substantially shorter than 

the 180-day review period specified in 

Section 6(a) of the Act for reviewing 

DCM and DTEF applications.6 The rules 

provide procedures for terminating the 

fast-track review, including termination 

by the Commission if it appears that the 

application’s form or substance fails to 

meet the requirements of the 

Commission’s regulations.7

Among other things, the application 

procedures also generally identify 

information required to be included in 

applications for registration as a DTEF 8

or designation as a DCM,9 require that 

the applicant support requests for 

confidential treatment of information 

included in the application with 

reasonable justification,10 and identify 

where additional guidance for 

applicants can be found.11 The rules 

also provide procedures for the 

withdrawal of an application for 

registration or vacation of registration as 

a DTEF 12 and for the withdrawal of an 

application for designation or vacation 

of designation as a DCM,13 and specify 

the extent of the delegation of authority 

from the Commission to the Director of 

the Division of Market Oversight, with 

the concurrence of the General Counsel, 

with respect to the termination of 

expedited review procedures.14

B. The Proposed Amendments

On September 1, 2004, the 

Commission published proposed 

amendments to its part 37 and 38 

regulations governing application 

procedures.15 The proposed 

amendments would modify the 

application procedures in a number of 

respects. With respect to the timeliness 

of the review of applications generally, 

the proposed amendments would 

establish the presumption that all 

applications are submitted for review 

under the 180-day timeframe specified 

in section 6(a) of the Act.16 An 

expedited 90-day review could be 

requested by the applicant, in which 

case the Commission would register the 

applicant as a DTEF or designate the 

applicant as a DCM during or by the end 

of the 90-day period unless the 

Commission terminated the expedited 

review for certain specifically identified 

reasons. The proposed amendments 

would lengthen the expedited review 

periods for DCM applications by 30 

days and for DTEF applications by 60 

days. The longer time periods were 

believed to be necessary, based upon the 

Commission’s review of eight DCM 

applications under the current DCM 

expedited review period, to ensure a 

comprehensive review of applications 

and to meet other public policy 

objectives, including the Commission’s 

policy to promote transparency in 

Commission operations, implemented 

in August of 2003, by providing for the 

posting of all such applications on the 

Commission’s website for a period of at 

least 15 days for public review and 

comment.17 The proposed 90-day 

review period should provide sufficient 

time to review applications and to 

respond to any public comments. While 

longer than the current fast-track review 

periods, the 90-day review period 

would be substantially shorter than the 

180-day review period established 

under the Act.18

The proposed amendments would 

also modify the Commission’s internal 

processing procedures under which an 

applicant would be registered as a DTEF 

or designated as a DCM. Under the 

proposal, an applicant would no longer 

be deemed to be registered or designated 

based upon the passage of time (30 days 

for DTEFs, 60 days for DCMs). If the 

applicant requested expedited review, 

the Commission would take affirmative 

action to register or designate the 

applicant as a DTEF or DCM, 

respectively, subject to conditions if 

appropriate, not later than 90 days after 

receipt of the application, unless the 

Commission terminated the expedited 

review. Thus, registration as a DTEF or 

designation as a DCM would involve 

affirmative action by the Commission, 

which would normally be in the form of 

issuance of a Commission order. It 

would be possible, under the proposed 

procedures, for applicants who submit 

Federal Register / Vol. 69, No. 224 / Monday, November 22, 2004 / Rules and Regulations 67813

19See 7 U.S.C. 8(a).

20The proposal adds the requirement that DTEF 

applications also must include a copy of any 

documents describing the applicant’s legal status 

and governance structure.

21 It should be noted that the ‘‘additional 

information’’ referred to herein is additional only in 

the sense that the proposal specifically codifies the 

information that must be included in an 

application. In fact, Commission staff has been 

requesting this type of information from each of the 

DCM applicants that have applied.

applications that are complete and not 

amended or supplemented during the 

review period to be registered as a DTEF 

or designated as a DCM in less than 90 

days. 

With respect to the termination of 

expedited review, the rules provide that 

fast-track review may be terminated 

because the application’s form or 

substance fails to meet the requirements 

of Part 37 or 38, as appropriate, or upon 

written instruction of the applicant 

during the review period. The proposed 

amendments would clarify and expand 

the rationale for terminating expedited 

review and would provide that the 

expedited review period also could be 

terminated if the application is 

materially incomplete, raises novel or 

complex issues that require additional 

time for review or, as more fully 

described below, undergoes major 

amendment or supplementation. If 

expedited review were terminated for 

any of the reasons cited above, the 

application would continue to be 

reviewed pursuant to the 180-day 

statutory procedure. Finally, the 

proposed amendments would delete the 

provision of the rules that would require 

the Commission, upon terminating fasttrack review, to commence a proceeding 

to deny a DCM or DTEF application 

upon the request of the applicant. This 

procedure has proved to be unnecessary 

to date, and an analogous procedure is 

available under the statutory review 

procedure.19

In order to further enhance the 

application process, the proposed 

amendments would more completely 

identify and expand the information 

required to be provided by an applicant 

under both the statutory 180-day and 

the expedited 90-day review 

procedures. The proposal would clarify 

that the rules required to be included in 

all applications are those rules as 

defined in Commission Regulation 40.1 

and would more clearly identify the 

documents required to be provided 

pertaining to the applicant’s legal status 

and governance structure. The 

Commission anticipates that such 

documents would include copies of 

corporate charters, limited liability 

corporation or partnership agreements, 

and the like.20

The proposed amendments would 

make it clear that all applicants would 

be required to submit for review an 

executed or executable copy of any 

agreements or contracts entered into or 

to be entered into by the applicant that 

enable the applicant to comply with a 

requirement for trading or registration 

criterion (DTEFs) or a designation 

criterion or core principle (DCMs) and 

that final, signed copies of such 

documents would be required to be 

submitted prior to registration or 

designation. The initial application 

would be required to include something 

more than a letter of intent or draft 

contract or agreement, such as a final 

contract or agreement signed by at least 

one of the parties. While the 

Commission is cognizant that applicants 

may prefer to defer the finalization of 

contracts in order to defer associated 

costs until registration or designation, it 

must balance that preference against the 

assurance that a contract or agreement 

will actually be executed prior to 

registration or designation. 

With respect to the additional 

information that would be required to 

be submitted as part of the 

application,21 the proposed 

amendments would require that 

applicants submit a ‘‘regulatory chart’’

that describes the manner in which the 

items included in the application enable 

the applicant to comply with each 

requirement for trading and registration 

criterion (DTEFs) or with each 

designation criterion and core principle 

(DCMs). The proposal would also 

require that the applicant identify any 

item included in the application that 

raises novel issues and explain how that 

item satisfies the requirements for 

trading or the registration criteria 

(DTEFs) or the designation criteria or 

the core principles (DCMs). In addition, 

the proposed amendments would 

require that the applicant submit a copy 

of any manual or other document 

describing the manner in which the 

applicant will conduct trade practice, 

market, and financial surveillance. 

Based upon experience in reviewing 

DCM applications, the Commission 

recognizes that this additional 

information is necessary for 

Commission review of the application 

when determining whether the 

applicant satisfies the requirements for 

trading and registration criteria (DTEFs) 

or the designation criteria and core 

principles (DCMs). Finally, the 

proposed amendments would eliminate 

the requirement that the applicant 

support requests for confidential 

treatment of information included in the 

application with reasonable 

justification. The Commission believes 

that the procedures provided in 

Commission Regulation 145.9, Petition 

for confidential treatment of information 

submitted to the Commission, should be 

followed by all applicants.

Under the proposed amendments, the 

items required to be included in an 

application to be reviewed under the 

statutory 180-day review procedures 

would be identical to those required to 

be included in an application to be 

reviewed under the expedited review 

procedures with the following 

exceptions for the expedited review 

applicants and applications: (1) The 

applicant must request expedited 

review; and (2) the application must not 

be amended or supplemented by the 

applicant, except as requested by the 

Commission or for correction of 

typographical errors, renumbering or 

other nonsubstantive revisions. The 

proposal would provide that amending 

or supplementing an application in a 

manner that is inconsistent with the 

above provision would result in 

termination of the expedited review. 

The proposed amendments would 

also modify and standardize the 

delegation of authority provisions 

applicable to applications for 

registration as a DTEF and for 

designation as a DCM. Currently, the 

rules provide for the delegation of 

authority to the Director of the Division 

of Market Oversight, with the 

concurrence of the General Counsel, (1) 

to terminate the fast-track review of both 

types of applications and (2) to 

designate an applicant as a DCM subject 

to conditions. Under the proposed 

amendment, the Commission would 

also delegate to the Director of the 

Division of Market Oversight, with the 

concurrence of the General Counsel, the 

authority to stay the running of the 180-

day statutory review period for both 

types of applications if they are 

materially incomplete, as is provided 

under section 6(a) of the Act. Because 

one result of the proposed amendments 

would be that registration as a DTEF 

and designation as a DCM would 

involve affirmative action on the part of 

the Commission, the proposal would 

rescind the delegation of the authority 

to designate the applicant as a DCM 

subject to conditions. 

Finally, the proposed amendments 

would reorganize the sequence of 

paragraphs in the rules where 

appropriate and to make minor word 

changes and deletions in order to clarify 

the application requirements. The 

proposal would also delete certain 

guidance regarding applications for 

designation as that information 

67814 Federal Register / Vol. 69, No. 224 / Monday, November 22, 2004 / Rules and Regulations 

22The guidance provided in 17 CFR 38.3(b) is 

discussed more completely in Appendices A and B 

to Part 38.

23The term ‘‘payment for order flow’’ is more 

commonly used to describe incentives offered by 

securities exchanges or market makers to securities 

brokers to direct orders to a particular exchange or 

an over-the-counter (OTC) dealer. Commission staff 

generally views these plans as volume discount 

programs because their primary purpose is to 

enhance volume by discounting transaction costs.

24For instance, when reviewing an incentive 

program proposed to be adopted by a DCM, 

Commission staff’s regulatory analysis of the 

proposed rule would focus on the manner of 

implementation and the potential for distorting 

open, competitive, and efficient trading by 

facilitating illegal trading practices, such as wash or 

fictitious trading. DCMs are obligated by Core 

Principle 2 to monitor trading for trade practice 

abuses. Staff would also analyze a plan’s potential 

for eroding fiduciary obligations owed by futures 

brokers to customers. Core Principle 12 requires 

that DCMs establish and enforce rules that protect 

market participants from abusive trading practices 

committed by any party acting as an agent for a 

participant, and in a situation where a broker 

handles an order that could be executed at more 

than one exchange, Commission staff would want 

to ensure that an incentive plan does not 

compromise the broker’s fiduciary obligations.

25 47 FR 18618, 18618–21 (April 30, 1982).

26 47 FR 18618, 18619 (April 30, 1982) 

(discussing DCMs); 66 FR 42256, 42268 (August 10, 

2001) (discussing DTEFs).

duplicates information available 

elsewhere in Part 38.22

C. Comments and Final Rule 

In response to the proposed 

amendments, the Commission received 

comment letters from the Chicago 

Mercantile Exchange and the Chicago 

Board of Trade (CBOT), both of which 

voiced support for the proposed 

amendments. With respect to the 

proposed application content 

requirements, however, the CBOT, 

suggested that the Commission should 

also require submission of documents 

detailing the applicant’s plans to offer 

payment for order flow, or other 

incentives that could encourage wash 

trading or compromise the fiduciary 

responsibilities of intermediaries, as 

well as documentation of plans to allow 

or encourage trading off the centralized 

market. The Commission has carefully 

considered this suggestion, but does not 

believe that the application content 

requirements need to be expanded to 

include this information. 

If an applicant’s plans regarding 

payment for order flow 23 or other 

incentive plans are established at the 

time of the application, it is expected 

that they would be included in the 

application because they would be 

considered to be rules and the 

applicant’s proposed rules are required 

to be submitted as part of the 

application. The same is true with 

respect to plans to allow or encourage 

trading off the centralized market, such 

as block trading. Of course, any 

proposal to implement incentive and/or 

off-centralized market trading plans 

after DCM designation or DTEF 

registration would have to be submitted 

to the Commission by the registrant as 

rule changes, either seeking 

Commission approval or certifying 

compliance with designation criteria 

and core principles (DCM) or with core 

principles (DTEF) as required under the 

Act.

Although the Commission expects 

that an application represents the 

applicant’s actual business plan at the 

time of its submission, the Commission 

has never required an applicant to 

reveal all of its potential future plans, 

which may be in various stages of 

development and indeed may never be 

adopted, when considering whether the 

application satisfies the designation 

criteria and core principles. 

Commission staff appropriately 

considers the materials filed and 

representations made by an applicant in 

drawing conclusions as to whether 

designation or registration is warranted. 

Subsequent to designation or 

registration, the DCM or DTEF may 

adopt changes to its rules and 

procedures; however, under the Act, 

DCMs and DTEFs must, on a continuing 

basis, comply with all designation 

criteria and core principles (DCMs) and 

core principles (DTEFs). In 

implementing changes to their business 

plans, DCMs and DTEFs seek 

Commission approval or certify 

compliance with the designation criteria 

and core principles, as applicable, as 

required under the Act. The 

Commission considers whether to 

approve new rules or rule amendments 

or whether to take action concerning 

certifications when a DCM or DTEF 

proposes to implement its revised 

plans.24

For the reasons cited above, the 

Commission does not believe that the 

application content requirements need 

to be expanded to include documents 

detailing the applicant’s incentive plans 

or documentation of plans to allow or 

encourage trading off the centralized 

market. After careful review and 

consideration of the comments received, 

the Commission has determined to 

adopt the proposed amendments to the 

application procedures as written. The 

Commission continues to encourage 

would-be applicants to consult with 

Commission staff prior to formally 

submitting a DTEF or DCM application 

to help ensure that an application, once 

formally submitted, will be reviewed in 

a timely manner. 

Related Matters 

A. The Regulatory Flexibility Act 

The Regulatory Flexibility Act (RFA), 

5 U.S.C. 601 et seq., requires Federal 

agencies, in promulgating rules, to 

consider the impact of those rules on 

small entities. The rules adopted herein 

would affect DCMs and DTEFs. The 

Commission has previously established 

certain definitions of small entities to be 

used by the Commission in evaluating 

the impact of its rules on small entities 

in accordance with the RFA.25 In its 

previous determinations, the 

Commission has concluded that DCMs 

and DTEFs are not small entities for the 

purpose of the RFA.26

In the proposed rules, the 

Commission solicited comment on 

whether the proposed amendments 

would have a significant impact on a 

substantial number of small entities. 

The Commission received no comments 

in response to this request. Accordingly, 

the Commission hereby determines that 

the rules, as adopted herein, will not 

have a significant economic impact on 

a substantial number of small entities. 

Therefore, the Acting Chairman, on 

behalf of the Commission, hereby 

certifies, pursuant to 5 U.S.C. 605(b), 

that the proposed amendments will not 

have a significant economic impact on 

a substantial number of small entities. 

B. The Paperwork Reduction Act 

As required by the Paperwork 

Reduction Act of 1995, 44 U.S.C. 

3507(d), the Commission submitted a 

copy of the proposed rule amendments 

to the Office of Management and Budget 

for its review. The Commission did not 

receive any public comments relative to 

its analysis of paperwork burdens 

associated with this rulemaking.

C. Cost Benefit Analysis 

Section 15(a) of the Act, as amended 

by section 119 of the CFMA, requires 

the Commission to consider the costs 

and benefits of its action before issuing 

a new regulation under the Act. By its 

terms, section 15(a) does not require the 

Commission to quantify the costs and 

benefits of a new regulation or to 

determine whether the benefits of the 

proposed regulation outweigh its costs. 

Rather, section 15(a) simply requires the 

Commission to ‘‘consider the costs and 

benefits’’ of its action. 

Section 15(a) further specifies that the 

costs and benefits of the proposed rule 

shall be evaluated in light of five broad 

areas of market and public concern: (1) 

Federal Register / Vol. 69, No. 224 / Monday, November 22, 2004 / Rules and Regulations 67815

27 69 FR 53367, 53370 (September 1, 2004).

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 of 

concern and may, in its discretion, 

determine that, notwithstanding its 

costs, a particular rule is necessary or 

appropriate to protect the public interest 

or to effectuate any of the provisions or 

to accomplish any of the purposes of the 

Act. 

The Commission published an 

analysis of costs and benefits when it 

proposed the rule amendments that 

have now been adopted.27 The 

Commission did not receive any public 

comments pertaining to the analysis.

List of Subjects 

17 CFR Part 37 

Commodity futures, Commodity 

Futures Trading Commission. 

17 CFR Part 38 

Commodity futures, Commodity 

Futures Trading Commission.

■ In consideration of the foregoing, and 

pursuant to the authority contained in 

the Act, and, in particular, sections 2, 3, 

4, 4c, 5, 5a and 8a of the Act, the 

Commission hereby amends Chapter I of 

Title 17 of the Code of Federal 

Regulations as follows:

PART 37—DERIVATIVES 

TRANSACTION EXECUTION 

FACILITIES

■ 1. The authority citation for Part 37 

continues to read as follows:

Authority: 7 U.S.C. 2, 5, 6, 6c, 7a and 12a, 

as amended by the Commodity Futures 

Modernization Act of 2000, Appendix E of 

Pub. L. 106–554, 114 Stat. 2763 (2000).

■ 2. Revise § 37.5 to read as follows:

§ 37.5 Procedures for registration. 

(a) Notification by contract markets.

(1) To operate as a registered derivatives 

transaction execution facility pursuant 

to section 5a of the Act, a board of trade 

that is designated as a contract market, 

which is not a dormant contract market 

as defined in § 40.1 of this chapter, 

must: 

(i) Notify the Commission of its intent 

to so operate by filing with the Secretary 

of the Commission at its Washington, 

DC, headquarters a copy of the facility’s 

rules (as defined in § 40.1 of this 

chapter) or a list of the designated 

contract market’s rules that apply to the 

operation of the derivatives transaction 

execution facility, and a certification by 

the contract market that it meets: 

(A) The requirements for trading of 

section 5a(b) of the Act; and 

(B) The criteria for registration under 

section 5a(c) of the Act.

(ii) Comply with the core principles 

for operation under section 5a(d) of the 

Act and the provisions of this part 37. 

(2) Before using the notification 

procedure of paragraph (a)(1)(i) of this 

section for registration as a derivatives 

transaction execution facility, a dormant 

contract market, as defined in § 40.1 of 

this chapter, must reinstate its 

designation under § 38.3(a)(3) of this 

chapter. 

(b) Application Procedures. (1) 

Statutory (180-day) review procedures. 

A board of trade desiring to be 

registered as a derivatives transaction 

execution facility shall file an 

application for registration with the 

Secretary of the Commission at its 

Washington, DC, headquarters. Except 

as provided under the 90-day review 

procedures described in paragraph (b)(2) 

of this section, the Commission will 

review the application for registration as 

a derivatives transaction execution 

facility pursuant to the 180-day 

timeframe and procedures specified in 

section 6(a) of the Act. The Commission 

shall approve or deny the application 

or, if deemed appropriate, register the 

applicant as a derivatives transaction 

execution facility subject to conditions. 

(i) The applicant must demonstrate 

that it satisfies the requirements for 

trading and the criteria for registration 

of sections 5a(b) and 5a(c) of the Act, 

respectively, and the provisions of this 

part 37. 

(ii) The application must include the 

following: 

(A) The derivatives transaction 

execution facility’s rules (as defined in 

§ 40.1 of this chapter); 

(B) Any technical manuals and other 

guides or instructions for users of such 

facility, descriptions of any system test 

procedures, tests conducted or test 

results, descriptions of the trading 

mechanism or algorithm used or to be 

used by such facility, and contingency 

or disaster recovery plans; 

(C) A copy of any documents 

describing the applicant’s legal status 

and governance structure; 

(D) An executed or executable copy of 

any agreements or contracts entered into 

or to be entered into by the applicant, 

including partnership or limited 

liability company, third-party regulatory 

service, or member or user agreements, 

that enable or empower the applicant to 

comply with a requirement for trading 

or a registration criterion (final, 

executed copies of such documents 

must be submitted prior to registration); 

(E) A copy of any manual or other 

document describing, with specificity, 

the manner in which the applicant will 

conduct trade practice, market and 

financial surveillance; 

(F) A document that describes the 

manner in which the applicable items in 

§ 37.5(b)(1)(ii)(A) through (E) enable or 

empower the applicant to comply with 

each requirement for trading and 

registration criterion (a regulatory 

chart); and 

(G) To the extent that any of the items 

in § 37.5(b)(1)(ii)(A) through (E) raise 

issues that are novel, or for which 

compliance with a requirement for 

trading or condition for registration is 

not self-evident, an explanation of how 

that item and the application satisfy the 

requirements for trading and registration 

criteria. 

(iii) The applicant must identify with 

particularity information in the 

application that will be subject to a 

request for confidential treatment 

pursuant to § 145.9 of this chapter.

(2) Ninety-day review procedures. A 

board of trade desiring to be registered 

as a derivatives transaction execution 

facility may request that its application 

be reviewed on an expedited basis and 

that the applicant be registered as a 

derivatives transaction execution 

facility not later than 90 days after the 

date of receipt of the application for 

registration by the Secretary of the 

Commission. The 90-day period shall 

begin on the first business day (during 

the business hours defined in § 40.1 of 

this chapter) that the Commission is in 

receipt of the application. Unless the 

Commission notifies the applicant 

during the 90-day period that the 

expedited review has been terminated 

pursuant to § 37.5(c), the Commission 

will register the applicant as a 

derivatives transaction execution 

facility during the 90-day period. If 

deemed appropriate by the Commission, 

the registration may be subject to such 

conditions as the Commission may 

stipulate. 

(i) The applicant must demonstrate 

that it satisfies the requirements for 

trading and the criteria for registration 

of sections 5a(b) and 5a(c) of the Act, 

respectively, and the provisions of this 

part 37; 

(ii) The application must include the 

items described in § 37.5(b)(1)(ii) and 

(iii); and 

(iii) The applicant must not amend or 

supplement the application, except as 

requested by the Commission or for 

correction of typographical errors, 

renumbering or other nonsubstantive 

67816 Federal Register / Vol. 69, No. 224 / Monday, November 22, 2004 / Rules and Regulations 

revisions, during the 90-day review 

period. 

(c) Termination of 90-day review. (1) 

During the 90-day period for review 

pursuant to paragraph (b)(2) of this 

section, the Commission shall notify the 

applicant seeking registration that the 

Commission is terminating review 

under this section, and will review the 

application under the 180-day time 

period and procedures of section 6(a) of 

the Act, if it appears to the Commission 

that the application: 

(i) Is materially incomplete; 

(ii) Fails in form or substance to meet 

the requirements of this part; 

(iii) Raises novel or complex issues 

that require additional time for review; 

or 

(iv) Is amended or supplemented in a 

manner that is inconsistent with 

§ 37.5(b)(2)(iii). 

(2) The Commission shall also 

terminate review under this section if 

requested in writing to do so by the 

applicant. 

(3) The termination notification shall 

identify the deficiencies in the 

application that render it incomplete, 

the manner in which the application 

fails to meet the requirements of this 

part, the novel or complex issues that 

require additional time for review, or 

the amendment or supplement that is 

inconsistent with § 37.5(b)(2)(iii). 

(d) Reinstatement of dormant 

registration. Before listing products for 

trading, a dormant derivatives 

transaction execution facility as defined 

in § 40.1 must reinstate its registration 

under the procedures of paragraphs 

(a)(1), (b)(1) or (b)(2) of this section; 

provided, however, that an application 

for reinstatement may rely upon 

previously submitted materials that still 

pertain to, and accurately describe, 

current conditions. 

(e) Delegation of authority. (1) The 

Commission hereby delegates, until it 

orders otherwise, to the Director of the 

Division of Market Oversight or such 

other employee or employees as the 

Director may designate from time to 

time, with the concurrence of the 

General Counsel or the General 

Counsel’s delegate, authority to notify 

the applicant seeking registration under 

section 6(a) of the Act that the 

application is materially incomplete and 

the running of the 180-day period is 

stayed or that the 90-day review under 

paragraph (b)(2) of this section is 

terminated. 

(2) The Director may submit to the 

Commission for its consideration any 

matter that has been delegated in this 

paragraph. 

(3) Nothing in this paragraph 

prohibits the Commission, at its 

election, from exercising the authority 

delegated in paragraph (e)(1) of this 

section. 

(f) Request for withdrawal of 

application for registration. An 

applicant for registration may withdraw 

its application submitted pursuant to 

paragraph (b)(1) or (b)(2) of this section 

by filing such a request with the 

Commission at its Washington, DC, 

headquarters. Withdrawal of an 

application for registration shall not 

affect any action taken or to be taken by 

the Commission based upon actions, 

activities or events occurring during the 

time that the application for registration 

was pending with the Commission. 

(g) Request for vacation of 

registration. A registered derivatives 

transaction execution facility may 

vacate its registration under section 7 of 

the Act by filing such a request with the 

Commission at its Washington, DC, 

headquarters. Vacation of registration 

shall not affect any action taken or to be 

taken by the Commission based upon 

actions, activities or events occurring 

during the time that the facility was 

registered by the Commission. 

(h) Guidance for applicants.

Appendix A to this part provides 

guidance on how the registration criteria 

in section 5a(c) of the Act can be 

satisfied.

PART 38—DESIGNATED CONTRACT 

MARKETS

■ 1. The authority citation for Part 38 

continues 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. Revise § 38.3 to read as follows:

§ 38.3 Procedures for designation. 

(a) Application procedures. (1) 

Statutory (180-day) review procedures. 

A board of trade desiring to be 

designated as a contract market shall file 

an application for designation with the 

Secretary of the Commission at its 

Washington, DC, headquarters. Except 

as provided under the 90-day review 

procedures described in paragraph (a)(2) 

of this section, the Commission will 

review the application for designation 

as a contract market pursuant to the 

180-day timeframe and procedures 

specified in section 6(a) of the Act. The 

Commission shall approve or deny the 

application or, if deemed appropriate, 

designate the applicant as a contract 

market subject to conditions. 

(i) The applicant must demonstrate 

compliance with the criteria for 

designation of section 5(b) of the Act, 

the core principles for operation of 

section 5(d) of the Act and the 

provisions of this part 38. 

(ii) The application must include the 

following: 

(A) A copy of the applicant’s rules (as 

defined in § 40.1 of this chapter) and 

any technical manuals, other guides or 

instructions for users of, or participants 

in, the market, including minimum 

financial standards for members or 

market participants; 

(B) A description of the trading 

system, algorithm, security and access 

limitation procedures with a timeline 

for an order from input through 

settlement, and a copy of any system 

test procedures, tests conducted, test 

results and contingency or disaster 

recovery plans; 

(C) A copy of any documents 

describing the applicant’s legal status 

and governance structure, including 

governance fitness information; 

(D) An executed or executable copy of 

any agreements or contracts entered into 

or to be entered into by the applicant, 

including partnership or limited 

liability company, third-party regulatory 

service, or member or user agreements, 

that enable or empower the applicant to 

comply with a designation criterion or 

core principle (final, executed copies of 

such documents must be submitted 

prior to designation); 

(E) A copy of any manual or other 

document describing, with specificity, 

the manner in which the applicant will 

conduct trade practice, market and 

financial surveillance; 

(F) A document that describes the 

manner in which the applicable items in 

§ 38.3(a)(1)(ii)(A) through (E) enable or 

empower the applicant to comply with 

each designation criterion and core 

principle (a regulatory chart); and 

(G) To the extent that any of the items 

in § 38.3(a)(1)(ii)(A) through (E) raise 

issues that are novel, or for which 

compliance with a designation criterion 

or a core principle is not self-evident, an 

explanation of how that item and the 

application satisfy the designation 

criteria or the core principles. 

(iii) The applicant must identify with 

particularity information in the 

application that will be subject to a 

request for confidential treatment 

pursuant to § 145.9 of this chapter.

(2) Ninety-day review procedures. A 

board of trade desiring to be designated 

as a contract market may request that its 

application be reviewed on an 

expedited basis and that the applicant 

be designated as a contract market not 

later than 90 days after the date of 

receipt of the application for 

designation by the Secretary of the 

Commission. The 90-day period shall 

begin on the first business day (during 

Federal Register / Vol. 69, No. 224 / Monday, November 22, 2004 / Rules and Regulations 67817

the business hours defined in § 40.1 of 

this chapter) that the Commission is in 

receipt of the application. Unless the 

Commission notifies the applicant 

during the 90-day period that the 

expedited review has been terminated 

pursuant to § 38.3(b), the Commission 

will designate the applicant as a 

contract market during the 90-day 

period. If deemed appropriate by the 

Commission, the designation may be 

subject to such conditions as the 

Commission may stipulate. 

(i) The applicant must demonstrate 

compliance with the criteria for 

designation of section 5(b) of the Act, 

the core principles for operation of 

section 5(d) of the Act and the 

provisions of this part 38; 

(ii) The application must include the 

items described in § 38.3(a)(1)(ii) and 

(iii); and 

(iii) The applicant must not amend or 

supplement the application, except as 

requested by the Commission or for 

correction of typographical errors, 

renumbering or other nonsubstantive 

revisions, during the 90-day review 

period. 

(b) Termination of 90-day review. (1) 

During the 90-day period for review 

pursuant to paragraph (a)(2) of this 

section, the Commission shall notify the 

applicant seeking designation that the 

Commission is terminating review 

under this section, and will review the 

application under the 180-day time 

period and procedures of section 6(a) of 

the Act, if it appears to the Commission 

that the application: 

(i) Is materially incomplete; 

(ii) Fails in form or substance to meet 

the requirements of this part; 

(iii) Raises novel or complex issues 

that require additional time for review; 

or 

(iv) Is amended or supplemented in a 

manner that is inconsistent with 

§ 38.3(a)(2)(iii). 

(2) The Commission shall also 

terminate review under this section if 

requested in writing to do so by the 

applicant. 

(3) The termination notification shall 

identify the deficiencies in the 

application that render it incomplete, 

the manner in which the application 

fails to meet the requirements of this 

part, the novel or complex issues that 

require additional time for review, or 

the amendment or supplement that is 

inconsistent with § 38.3(a)(2)(iii). 

(c) Reinstatement of dormant 

designation. Before listing or relisting 

products for trading, a dormant 

designated contract market as defined in 

§ 40.1 of this chapter must reinstate its 

designation under the procedures of 

paragraph (a)(1) or (a)(2) of this section; 

provided, however, that an application 

for reinstatement may rely upon 

previously submitted materials that still 

pertain to, and accurately describe, 

current conditions. 

(d) Delegation of authority. (1) The 

Commission hereby delegates, until it 

orders otherwise, to the Director of the 

Division of Market Oversight or such 

other employee or employees as the 

Director may designate from time to 

time, with the concurrence of the 

General Counsel or the General 

Counsel’s delegate, authority to notify 

the applicant seeking designation under 

section 6(a) of the Act that the 

application is materially incomplete and 

the running of the 180-day period is 

stayed or that the 90-day review under 

paragraph (a)(2) of this section is 

terminated. 

(2) The Director may submit to the 

Commission for its consideration any 

matter that has been delegated in this 

paragraph. 

(3) Nothing in this paragraph 

prohibits the Commission, at its 

election, from exercising the authority 

delegated in paragraph (d)(1) of this 

section. 

(e) Request for withdrawal of 

application for designation. An 

applicant for designation may withdraw 

its application submitted pursuant to 

paragraph (a)(1) or (a)(2) of this section 

by filing such a request with the 

Commission at its Washington, DC, 

headquarters. Withdrawal of an 

application for designation shall not 

affect any action taken or to be taken by 

the Commission based upon actions, 

activities or events occurring during the 

time that the application for designation 

was pending with the Commission. 

(f) Request for vacation of 

designation. A designated contract 

market may vacate its designation under 

section 7 of the Act by filing such a 

request with the Commission at its 

Washington, DC, headquarters. Vacation 

of designation shall not affect any action 

taken or to be taken by the Commission 

based upon actions, activities or events 

occurring during the time that the 

facility was designated by the 

Commission. 

(g) Guidance for applicants.

Appendix A to this part provides 

guidance on how the criteria for 

designation under section 5(b) of the 

Act can be satisfied. Appendix B to this 

part provides guidance on how the core 

principles of section 5(d) of the Act can 

be satisfied.

Issued in Washington, DC, on November 

12, 2004, by the Commission. 

Jean A. Webb, 

Secretary of the Commission.

[FR Doc. 04–25614 Filed 11–19–04; 8:45 am] 

BILLING CODE 6351–01–P

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES

Food and Drug Administration

21 CFR Part 522

Implantation or Injectable Dosage 

Form New Animal Drugs; Trenbolone 

Acetate and Estradiol Benzoate

AGENCY: Food and Drug Administration, 

HHS.

ACTION: Final rule.

SUMMARY: The Food and Drug 

Administration (FDA) is amending the 

animal drug regulations to reflect 

approval of a supplemental new animal 

drug application (NADA) filed by Fort 

Dodge Animal Health, Division of 

Wyeth. The supplemental NADA 

provides for the addition of statements 

to labeling of subcutaneous implants 

containing trenbolone acetate and 

estradiol benzoate warning against the 

use of these products in calves to be 

processed for veal.

DATES: This rule is effective November 

22, 2004.

FOR FURTHER INFORMATION CONTACT: Eric 

S. Dubbin, Center for Veterinary 

Medicine (HFV–126), Food and Drug 

Administration, 7500 Standish Pl., 

Rockville, MD 20855, 301–827–0232, email: edubbin@cvm.fda.gov.

SUPPLEMENTARY INFORMATION: Fort 

Dodge Animal Health, Division of 

Wyeth, 800 Fifth St. NW., Fort Dodge, 

IA 50501, filed a supplement to NADA 

141–043 for SYNOVEX PLUS 

(trenbolone acetate and estradiol 

benzoate) and SYNOVEX CHOICE 

(trenbolone acetate and estradiol 

benzoate), two subcutaneous implants 

products used in steers and heifers fed 

in confinement for slaughter for 

increased rate of weight gain and/or 

improved feed efficiency. The 

supplemental NADA provides for the 

addition of statements to labeling 

warning against the use of these 

products in calves to be processed for 

veal. The supplemental application is 

approved as of October 28, 2004, and 

the regulations are amended in 21 CFR 

522.2478 to reflect the approval. The 

basis of approval is discussed in the 

freedom of information summary.

In accordance with the freedom of 

information provisions of 21 CFR part