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[Federal Register: February 8, 2005 (Volume 70, Number 25)]
[Notices]
[Page 6630-6633]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr08fe05-36]

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COMMODITY FUTURES TRADING COMMISSION


In the Matter of the New York Mercantile Exchange, Inc. Petition
To Extend Interpretation Pursuant to Section 1a(12)(C) of the Commodity
Exchange Act

AGENCY: Commodity Futures Trading Commission.

ACTION: Order.

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SUMMARY: On February 4, 2003, in response to a petition from the New
York Mercantile Exchange, Inc. (``NYMEX'' or ``Exchange'') the
Commodity Futures Trading Commission (``Commission''), issued an order
\1\ pursuant to Section 1a(12)(C) of the Commodity Exchange Act
(``Act''). The order provides that, subject to certain conditions,
Exchange floor brokers and floor traders (collectively referred to
hereafter as ``floor members'') who are registered with the Commission,
when acting in a proprietary trading capacity, shall be deemed to be
``eligible contract participants'' as that term is defined in Section
1a(12) of the Act. The order (hereafter the ``original order'' or the
``ECP Order'') is effective for a two-year period and thus will expire
on February 4, 2005.
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    \1\ 68 FR 5621 (February 4, 2003).
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    On January 19, 2005, the Exchange petitioned the Commission to
extend the original order for a further one-year period. Based on a
review of all the relevant facts and circumstances, including its
review of a report required as a condition of the original order,
detailing the experiences of the Exchange, its floor members and its
clearing members under that order, the Commission has determined to
grant the Exchange's petition.
    Accordingly, subject to certain conditions as set forth in this
order, NYMEX floor members, when acting for their own accounts, are
permitted to continue to enter into certain specified over-the-counter
(``OTC'') transactions in exempt commodities pursuant to Section
2(h)(1) of the Act. In order to participate, the floor member must have
its OTC trades guaranteed by, and cleared at NYMEX by, an Exchange
clearing member that is registered with the Commission as a futures
commission merchant (``FCM'') and that meets certain minimum working
capital requirements. This order is effective for a one-year period
commencing on the expiration date of the original order.

DATES: This order is effective on February 4, 2005.

FOR FURTHER INFORMATION CONTACT: Donald H Heitman, Senior Special
Counsel, Division of Market Oversight, Commodity Futures Trading
Commission, Three Lafayette Center, 1155 21st Street, NW., Washington,
DC 20581. Telephone: 202-418-5041. E-mail: [email protected].

SUPPLEMENTARY INFORMATION:

I. Statutory Background

    Section 1a(12) of the Act, as amended by the Commodity Futures
Modernization Act of 2000 (``CFMA''), Public Law 106-554, which was
signed into law on December 21, 2000, defines the term ``eligible
contract participant'' (``ECP'') by listing those entities and
individuals considered to be ECPs.\2\ Under Sections 2(d)(1), 2(g), and
2(h)(1) of the Act, OTC transactions \3\ entered into by ECPs in an
``excluded commodity'' or an ``exempt commodity,'' as those terms are
defined by the Act,\4\ are exempt from all but certain requirements of
the Act.\5\ Floor brokers and floor traders are explicitly included in
the ECP definition only to the extent that the floor broker or floor
trader acts ``in connection with any transaction that takes place on or
through the facilities of a registered entity or an exempt board of
trade, or any affiliate thereof, on which such person regularly
trades.'' \6\
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    \2\ Included generally in Section 1a(12) as ECPs are: financial
institutions; insurance companies and investment companies subject
to regulation; commodity pools and employee benefit plans subject to
regulation and asset requirements; other entities subject to asset
requirements or whose obligations are guaranteed by an ECP that
meets a net worth requirement; governmental entities; brokers,
dealers, and FCMs subject to regulation and organized as other than
natural persons or proprietorships; brokers, dealers, and FCMs
subject to regulation and organized as natural persons or
proprietorships subject to total asset requirements or whose
obligations are guaranteed by an ECP that meets a net worth
requirement; floor brokers or floor traders subject to regulation in
connection with transactions that take place on or through the
facilities of a registered entity or an exempt board of trade;
individuals subject to total asset requirements; an investment
adviser or commodity trading advisor acting as an investment manager
or fiduciary for another ECP; and any other person that the
Commission deems eligible in light of the financial or other
qualifications of the person.
    \3\ For these purposes, OTC transactions are transactions that
are not executed on a trading facility. As defined in Section
1a(33)(A) of the Act, the term ``trading facility'' generally means
``a person or group of persons that constitutes, maintains, or
provides a physical or electronic facility or system in which
multiple participants have the ability to execute or trade
agreements, contracts, or transactions by accepting bids and offers
made by other participants that are open to multiple participants in
the facility or system.''
    \4\ Section 1a(14) defines the term ``exempt commodity'' to mean
a commodity that is not an excluded commodity or an agricultural
commodity. Section 1a(13) defines the term ``excluded commodity'' to
mean, among other things, an interest rate, exchange rate, currency,
credit risk or measure, debt instrument, measure of inflation, or
other macroeconomic index or measure. Although the term
``agricultural commodity'' is not defined in the Act, Section 1a(4)
enumerates a non-exclusive list of several agricultural-based
commodities and products. The broadest types of commodities that
fall into the exempt category are energy and metals products.
    \5\ OTC transactions in excluded commodities entered into by
ECPs pursuant to Section 2(d)(1) are generally not subject to any
provision of the Act. OTC transactions in exempt or excluded
commodities that are individually negotiated by ECPs pursuant to
Section 2(g) are also generally not subject to any provision of the
Act. OTC transactions in exempt commodities entered into by ECPs
pursuant to Section 2(h)(1) are generally not subject to any
provision of the Act other than antimanipulation provisions and
anti-fraud provisions in certain situations.
    \6\ Section 1a(12)(A)(x) of the Act.
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    The Act, however, gives the Commission discretion to expand the ECP
category as it deems appropriate. Specifically, Section 1a(12)(C)
provides that the list of entities defined as ECPs shall include ``any
other person that the Commission determines to be eligible in light of
the financial or other qualifications of the person.''

II. The Original NYMEX Petition

A. Introduction

    By letter dated May 23, 2002, NYMEX submitted a petition seeking a
Commission interpretation pursuant to

[[Page 6631]]

Section 1a(12)(C) of the Act. Specifically, NYMEX, acting on behalf of
Exchange floor members and member clearing firms, requested that the
Commission make a determination pursuant to Section 1a(12)(C) of the
Act that floor members, when acting in a proprietary capacity, may
enter into certain specified OTC transactions in exempt commodities
pursuant to Section 2(h)(1) of the Act if such floor members have
obtained a financial guarantee for such transactions from an Exchange
clearing member that is registered with the Commission as an FCM.\7\
NYMEX suggested that the permissible OTC transactions be limited to
trading in a commodity that either (1) is listed only for clearing at
the Exchange,\8\ or (2) is listed for trading and clearing at the
Exchange and where Exchange rules provide for the exchange of futures
for swaps (``EFS'') in that contract.\9\ NYMEX further proposed that
such transactions would be subject to additional conditions and
restrictions detailed in the petition and described below.\10\
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    \7\ To qualify for the Section 2(h)(1) exemption, the
transaction must: (1) Be in an exempt commodity, (2) be entered into
by ECPs, and (3) not be entered into on a trading facility.
    \8\ By letter dated May 24, 2002, NYMEX filed rule changes
implementing an initiative to provide clearing services for
specified energy contracts executed in the OTC markets. NYMEX
certified that the rules comply with the Act and the Commission's
regulations. Under the provision, NYMEX initially listed 25
contracts that are entered into OTC and accepted for clearing by
NYMEX, but are not listed for trading on the Exchange. In connection
with the NYMEX initiative, on May 30, 2002, the Commission issued an
order pursuant to Section 4d of the Act. The order provides that,
subject to certain terms and conditions, the NYMEX Clearinghouse and
FCMs clearing through the NYMEX Clearinghouse may commingle customer
funds used to margin, secure, or guarantee transactions in futures
contracts executed in the OTC markets and cleared by the NYMEX
Clearinghouse with other funds held in segregated accounts
maintained in accordance with Section 4d of the Act and Commission
Regulations thereunder.
    \9\ EFS transactions are permitted at the Exchange pursuant to
NYMEX Rule 6.21A, ``Exchange of Futures for, or in Connection with,
Swap Transactions.'' The swap component of the transaction must
involve the commodity underlying a related NYMEX futures contract,
or a derivative, byproduct, or related product of such a commodity.
In furtherance of its effort to permit OTC clearing at the Exchange,
NYMEX amended the rule to include as eligible EFS transactions ``any
contract executed off the Exchange that the Exchange has designated
as eligible for clearing at the Exchange.'' The Division notes that,
subsequent to the Commission's ECP Order responding to the
Exchange's original petition, NYMEX listed on its ClearPort(sm)
Trading venue a significant number of futures contracts modeled
after OTC energy swap agreements. While these futures contracts are
competitively traded on the ClearPort(sm) Trading market, the vast
majority of positions in these contracts are established via EFS
transactions that are executed non-competitively away from the
Exchange and then submitted to NYMEX via its ClearPort(sm) Clearing
service.
    \10\ NYMEX also suggested a further limitation on floor members'
permissible transactions by not permitting any OTC transactions in
electricity commodities.
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B. Arguments in Support of the Original Petition

    In its original petition, NYMEX offered supporting arguments based
on both public interest considerations and a detailed analysis of the
Act's ECP definition. Those arguments are fully described in the
Federal Register notice implementing the original 2003 order.\11\
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    \11\ 68 FR 5621 (February 4, 2003).
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C. Trading Restrictions and Exchange Oversight

    In its original petition, NYMEX represented that it would have
appropriate compliance systems in place to monitor OTC trading by
Exchange floor members.\12\ NYMEX also suggested that, consistent with
the standards already applicable to floor members with respect to their
trading on the Exchange, the Commission should provide that floor
members' transactions in the permissible contracts that are not
executed on a trading facility be executed only pursuant to the Section
2(h)(1) exemption. As indicated above, all Section 2(h)(1) transactions
would be subject to the Act's antimanipulation provisions and, in
certain situations, its antifraud provisions.\13\ Finally, the Exchange
represented that it would agree, as a condition for its members
participating in the OTC markets, to limit OTC trading by floor members
such that the counterparties to their trades must not be other floor
members for contracts that are listed for trading on the Exchange.
Thus, for example, floor members could not be counterparties in
connection with an OTC natural gas swap to be exchanged for a futures
position in the NYMEX Natural Gas Futures contract. NYMEX floor members
could be counterparties in connection with a Chicago Basis swap that is
subsequently cleared at NYMEX through EFS procedures because that
contract is listed only for clearing at the Exchange.
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    \12\ Id.
    \13\ See supra note 5.
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D. The Commission's Conclusion Regarding the Original Petition

    After consideration of the original NYMEX petition, the Commission
determined that NYMEX floor members, subject to certain conditions and
for a two-year period commencing on the date of publication of the
order in the Federal Register, would be eligible to be ECPs as that
term is defined in Section 1a(12) of the Act.\14\ The floor members
were required to meet the financial qualifications of an ECP by having
a financial guarantee for the OTC transactions from a NYMEX clearing
member that is registered as an FCM and that meets certain minimum
working capital requirements.
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    \14\ A NYMEX floor member who is determined to be an ECP based
upon compliance with the provisions set forth in the Commission's
original order is an ECP only for the purpose of entering into
transactions executed pursuant to Section 2(h)(1) of the Act and as
described in the order.
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    The Commission noted that the execution and clearing of such
transactions has financial implications for the clearing system.\15\
Thus, the Commission added certain safeguards to the original order to
limit the possibility of a trader entering into OTC transactions that
could create financial difficulty for the guarantor FCM, the clearing
entity or other clearing firms. First, the guarantor FCM must clear, at
NYMEX, every OTC transaction for which it provides such a guarantee.
Second, in order to assure that the guarantor FCM is adequately
capitalized, the guarantor FCM must have and maintain at all times
minimum working capital \16\ of at least $20 million.\17\
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    \15\ The Commission noted that the guarantor FCM could restrict
or otherwise condition the trading for which the guarantee is
provided. The guarantor could, for instance, limit trading to
certain commodities, place financial limits on overall or daily
positions, or restrict trading by number or size of acceptable
transactions.
    \16\ For the purposes of an FCM clearing member, NYMEX Rule 9.21
defines ``working capital'' to mean ``adjusted net capital'' as
defined by CFTC Regulation 1.17.
    \17\ The original order provided a sliding scale for the two-
year duration of the original order whereby a clearing member was
required to have minimum working capital of $5 million during the
first 12 months, $10 million during the thirteenth through
eighteenth months, and $20 million thereafter. The final $20 million
requirement is carried over into this order.
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    The Commission determined to make the original order effective for
a two-year period in order to provide the opportunity to evaluate the
impact of the OTC trading on both the OTC market and on NYMEX. Thus,
the Commission required that NYMEX submit a report reviewing its
experiences and the experiences of its floor members and clearing
members with respect to OTC trading, including: The levels of OTC
trading and related clearing activity; the number of floor members and
clearing members who participated in these activities; and an
evaluation of whether the Commission should extend this Order and, if
so, whether any modifications should be made thereto. This report was
to address

[[Page 6632]]

the first eighteen months of the two-year period, and was to be
submitted to the Commission no later than 30 days after the conclusion
of that eighteen month period (i.e., by September 4, 2004). In fact,
the report was incorporated into the Exchange's January 19, 2005
petition to extend the relief granted in the original petition and thus
was not filed within the timeline set out in the original order.
Nevertheless, the Commission has determined to accept this report and
not to impose any sanctions on the Exchange for the late filing of the
report.

III. The Petition to Extend the Relief

A. The Exchange Report

    The Exchange's petition to extend the relief granted in the
original order includes the required report concerning the experiences
of the Exchange, its floor members and clearing members under the
original order. At the outset, the report states that the Exchange
adopted two new rules in connection with the original order, Rules
6.21F (``Participation by NYMEX Floor Members in Special Program for
Over-the-Counter Trading with FCM Guarantee'') and Rule 9.41 (``Special
Capital Provisions for Clearing Members Guaranteeing and Clearing OTC
Contracts Executed by NYMEX Floor Members''). The Exchange notes that,
if the Commission grants its request for an extension, it will certify
to the Commission rule amendments to conform these rules to the terms
of the Commission's extension.
    With respect to compliance oversight, the Exchange reports that,
under Rule 6.21F, floor members are required to notify the Exchange
Compliance Department prior to any participation in the program
authorized by the ECP Order, and to submit all executed OTC
transactions to the Exchange for clearing. Beginning April 1, 2004, the
Exchange also required that notification to include a specially
tailored guarantee form prepared by Exchange staff. In addition, the
Exchange employs a special trade type indicator to allow it to identify
EFS transactions. Thus, Exchange Compliance staff is able to identify
which floor members are participating in the program under the ECP
Order and whether they are complying with the notification and other
requirements. Currently, none of the floor members trading pursuant to
the ECP Order execute orders for customers in their floor member
capacities. Therefore, they would not be in a position to take
advantage of customer order information when trading in a proprietary
capacity under the ECP Order. In addition, the minimal amount of
trading done under the ECP Order has been regularly reviewed by the
Exchange's Compliance Market Surveillance staff. In addition,
Compliance Market Surveillance staff monitors for the condition of the
ECP Order that prohibits floor members participating in this program
from engaging in EFS transactions with each other. Compliance staff
monitors for compliance with this restriction by reviewing the trading
activity of participating floor members to check for trades involving a
CTI 1 vs. CTI 1 transaction.
    With respect to actual floor member participation in the program,
the Exchange notes that it has been ``relatively slight to date.'' Only
12 floor members participated in the program overall and only seven
were participating at the time the extension request was filed. With
respect to volume, the Exchange reports that the floor members
participating in the program, during the period from March 11, 2003
through January 7, 2005, participated in cleared transactions totaling
82,855 lots on the buy side and 79,740 lots on the sell side. In
general, this EFS activity was concentrated in the smaller cash-settled
natural gas or natural gas basis futures contracts listed in the NYMEX
ClearPort(sm) Clearing System.
    By comparison, the single day volume for November 4, 2004, the
busiest day experienced by NYMEX's ClearPort(sm) Clearing services
during that same period was 147,153 lots. The same press release
announcing that volume record noted that total 2004 cleared volume for
OTC transactions, as of that date, was 10,858,906 lots. Thus, the
contribution by floor members participating in the program under the
Commission's ECP Order ``has been relatively modest.''
    The Exchange attributed this limited participation to a number of
possible factors. The Exchange noted that, over recent months,
noticeable price volatility in NYMEX's core floor-traded products has
provided ample trading opportunities on the Exchange's trading floors
in futures products, making it less necessary for professional futures
traders to look to OTC markets for trading opportunities. Also, at
present, the Exchange permits EFS transactions in natural gas futures,
but not crude oil, heating oil or unleaded gasoline futures, thus
making the program of interest primarily only to those floor members
who already regularly trade in natural gas futures. In addition, many
floor traders focus on trading in the front contract month, or the
first few listed months of a contract, whereas the OTC natural gas
market emphasizes longer trading periods, such as quarterly or seasonal
strip trading, so that a floor trader actively engaging in OTC natural
gas trading would likely need to retain an additional clerk to manage
the OTC activity. Finally, the requirement that the clearing FCM
guaranteeing a floor member's trades under the program must maintain
working capital of $20 million has restricted the number of clearing
members able to participate in the program and effectively narrowed the
pool of floor members willing to participate in the program, since it
is difficult (though not impossible) for a floor member to use his or
her regular clearing FCM for regular futures trading and another for
OTC trades under this program.

B. The Extension Request

    The Exchange notes that its original petition, and the Commission's
original ECP Order, were based on an approach whereby an OTC energy
swap would be converted, via an EFS transaction, to a futures position
maintained at the Exchange's clearinghouse. Recently, however, the
Exchange has begun preparation of a draft filing to register with the
Commission a derivatives transaction execution facility (DTEF). As a
part of that filing, the Exchange plans to request that a large number
of the products currently listed on the NYMEX ClearPort(sm) Trading
product slate be shifted from the DCM to the DTEF regulatory tier. As
part of that same filing, the Exchange staff anticipates revisiting the
manner in which off-exchange energy transactions are submitted to the
Exchange for participation in the ClearPort(sm) Clearing Service. Any
such revision would require corresponding revisions in the Commission's
ECP Order. Therefore, the Exchange suggests that any substantive
changes to the terms of the order, including the possibility of making
the order permanent, should be considered in the context of the DTEF
filing. In the meantime, the Exchange requests that the existing ECP
Order be extended for an additional term of one year. The Exchange
notes that the policy arguments in favor of the program under the
original ECP Order, summarized in the Federal Register notice
publishing the order,\18\ ``remain valid and also support the
continuation of this program.''
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    \18\ 68 FR 5621 (February 4, 2003).
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IV. Conclusion

    Accordingly, the Commission has determined, consistent with the
NYMEX petition of January 19, 2005, that it is

[[Page 6633]]

appropriate to issue an order pursuant to Section 1a(12)(C) of the Act
extending the relief granted in its original February 4, 2003 order
whereby, subject to certain conditions and for a further one-year
period commencing on February 4, 2005, NYMEX floor brokers and floor
traders are included within the definition of ECPs who can enter into
OTC transactions pursuant to Section 2(h)(1) of the Act. Although this
order applies only to NYMEX and NYMEX members, the Commission would
welcome, in response to a petition so requesting, providing
substantially similar relief to other designated contract markets and
members of designated contract markets.

V. Cost Benefit Analysis

    Section 15 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 or order under the Act. By its
terms, Section 15 does not require the Commission to quantify the costs
and benefits of its action or to determine whether the benefits of the
action outweigh its costs. Rather, Section 15 simply requires the
Commission to ``consider the costs and benefits'' of the subject rule
or order.
    Section 15(a) further specifies that the costs and benefits of the
proposed rule or order 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. 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 or order 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 undertook a detailed costs-benefits analysis in considering
the original order.\19\ Actual experience under that order has been
consistent with the Commission's analysis.
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    \19\ See 68 FR 5621 at 5624-25 (February 4, 2003).
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    By extending the essential provisions of the original 2003 order,
this order is intended to reduce regulatory barriers by continuing to
permit NYMEX members registered with the Commission as floor brokers or
floor traders, when acting in a proprietary capacity, to enter into OTC
transactions in exempt commodities pursuant to Section 2(h)(1) of the
Act if such floor members have obtained a financial guarantee for such
transactions from an Exchange clearing member that is registered with
the Commission as an FCM. The Commission has considered the costs and
benefits of this order in light of the specific provisions of Section
15(a) of the Act.

VI. Order

    Upon due consideration, and pursuant to its authority under Section
1a(12)(C) of the Act, the Commission hereby determines that a NYMEX
member who is registered with the Commission as a floor broker or a
floor trader, when acting in a proprietary trading capacity, shall
continue to be deemed to be an eligible contract participant and may
continue to enter into Exchange-specified OTC contracts, agreements or
transactions in an exempt commodity under the following conditions:
    1. This Order is effective for one year, commencing on February 4,
2005.
    2. The contracts, agreements or transactions must be executed
pursuant to Section 2(h)(1) of the Act.
    3. The floor broker or floor trader must have obtained a financial
guarantee for the contracts, agreements or transactions from a NYMEX
clearing member that:
    (a) Is registered with the Commission as an FCM; and,
    (b) Clears the OTC contracts, agreements or transactions thus
guaranteed.
    4. Permissible contracts, agreements or transactions must be
limited to trading in a commodity that either:
    (a) Is listed only for clearing at NYMEX or
    (b) Is listed for trading and clearing at NYMEX and NYMEX's rules
provide for exchanges of futures for swaps in that contract, and each
OTC contract, agreement or transaction executed pursuant to the order
must be cleared at NYMEX.
    5. The floor broker or floor trader may not enter into OTC
contracts, agreements or transactions with another floor broker or
floor trader as the counterparty for contracts that are listed for
trading on the Exchange.
    6. NYMEX must have appropriate compliance systems in place to
monitor the OTC contracts, agreements or transactions of its floor
brokers and floor traders.
    7. Clearing members that guarantee and clear OTC contracts,
agreements or transactions pursuant to this order must have and
maintain at all times minimum working capital of at least $20 million.
A clearing member must compute its working capital in accordance with
exchange rules and generally accepted accounting principles
consistently applied.
    8. In the event NYMEX requests a further modification or extension
of the ECP Order, the request shall include a report to the Commission
reviewing the experiences of the Exchange and its floor members and
clearing members under the Order. The report shall include information
on the levels of OTC trading and related clearing activity, the number
of floor members and clearing members participating in the activity,
and the Exchange's reasons supporting the further modification or
extension of the Order.
    This order is based upon the representations made and supporting
material provided to the Commission by NYMEX. Any material changes or
omissions in the facts and circumstances pursuant to which this order
is granted might require the Commission to reconsider its finding that
the provisions set forth herein are appropriate. Further, if experience
demonstrates that the continued effectiveness of this order would be
contrary to the public interest, the Commission may condition, modify,
suspend, terminate or otherwise restrict the provisions of this order,
as appropriate, on its own motion.

    Issued in Washington, DC on February 2, 2005 by the Commission.
Jean A. Webb,
Secretary of the Commission.
[FR Doc. 05-2368 Filed 2-7-05; 8:45 am]

BILLING CODE 6351-01-U
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