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[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
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