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Atlonta C.1Jgary Chicago Houston london New York Singapore 

RECEIVED 

C.f:.T.C. 

OFC. OF THe SECRETARIAT 

September 12; 2007 o1-lb 

VIA EMAIL & EXPRESS MAIL 

U.S. Commodity Futures Trading Commission 

Three Lafayette Centre 

1155 21stStreet, N.W. 

Washington, D.C. 20581 

Attention: Office of the Secretariat 

COMMENT If 

Re: Amendments Pertinent to Registered Entities and Exempt Commercial Markets 

Dear Sir or Madam: 

(!) 

The IntercontinentalExchange, hie. ("ICE") is pleased to comment on the proposed rules issued 

by the U.S. Commodity Futures Trading Commission ("Commission"), 72 Fed. Reg. 45185 (August 13, 

2007) ("Proposed Rules"), as they pertain to the delegation of authority to issue exempt commercial 

market ("ECM") special calls to inClude the Director of the Division of Enforcement and the Director's 

designees. ICE is a Delaware corporation that operates, inter alia, an electronic platform ("ICE OTC") 

for the trading of a variety of energy commodities and derivative products related to such commodities. 

For certain of its derivative contracts, ICE operates as an ECM pursuantto Section 2(h)(3) of the 

Commodity Exchange Act, 7 U.S.C. § 2(h)(3) (''CEA"), and is the principal ECM in the energy markets. 

Delegation of Authority to the Division of Enforcement 

ICE supports the delegation of special call authority to the Division of Enforcement as a 

necessary step to align Commission Rule 36.3 with Section 2(h) of the CEA. 

Section 2(h)(5)(B)(iii) states, in pertinent part, "upon special call by the Commission, [an ECM 

shall] provide to the Commission ... such information related to its business as an electronic trading 

facility exempt under paragraph (3) ... as the Commission may determine appropriate - ... (I) to enforce 

the provisions specified in subparagraphs (B) and (C) of paragraph (4) ... " Subparagraphs (B) and (C) of 

paragraph (4) of section 2(h), in turn, refer to the fraud and manipulation provisions of the CEA. 

Notwithstanding the language of the statute directing the Commission to use its special call 

authority, inter alia, to secure information from ECMs to enforce the fraud and manipulation provisions 

of the CEA, Commission Rule 36.3(b)(3)(ii) currently delegates special call authority only to the 

Directors of the Division of Clearing and Intermediary Oversight and the Division of Market Oversight 

(and their designees), and not to the Director of Enforcement and his or her designees, even though that 

Division has the principal responsibility for enforcement ofthe CEA's fraud and manipulation provisions. 

The proposed amendment to the rule will correct this omission. 

Johna than Short 

lntercontrnentalExch;mge 

2100 RiverEdge Parkway d""' 770 738 2120 

Suite 500 fa• 770 857 ,1755 

Atlanta, GA 3032B email r-hort<Nh<!~ee.com 
Designees of the Director ofEnforcement 

The information the Commission is authorized to secure pursuant to section 2(h)(5)(B)(iii) of the 

CEA includes details of transactions entered into in reliance on the 2(h)(3) exemption. Information of 

this kind is confidential and often reflects. the proprietary trading strategies of participants on ECMs like 

ICE. For this reason, ICE believes the Commission should limit the individuals to whom the Director 

may designate such authority or require review of any special call by certain senior members ofDivision 

of Enforcement staff. 

Since its designation as an ECM in January 2002, ICE OTC has received many requests from the 

Division of Enforcement for information about trading on the ICE platform. In light of its own 

experience, ICE believes that the process will benefit from having special call authority under 

36.3(b)(3)(ii) reside, at least within the Division of Enforcement, among the Director and a limited group 

of individuals designated by the. Director. ICE proposes that this group include Deputy and Associate 

Directors. By so defining the designees, the Commission will help to ensure that a special call to an ECM 

will be reviewed by individuals who have had the opportunity to become familiar with the types of 

information that may be available through the ECM and are sensitive to the implications to the ECM in 

being asked to produce particular materials or information. This, in turn, will facilitate the timely 

production of information by the ECM to the Division of Enforcement by reducing the time spent 

negotiating over the scope of the requested production, and ease the burden on the ECM in having to 

respond td such requests. 

Alternatively, ICE proposes that the exercise of special call authority by the Director of 

Enforcement's designees be conditioned upon review and approval ofthe special call by the Director, a 

Deputy Director or an Associate Director to consider the appropriateness of (I) the issuance of a special 

call, (2) the specific records sought pursuant to the special call, and (3) the "form and manner'; of the 

requested production by the ECM, e.g. the time afforded to the ECM to respond to the special call. 

We believe that, with this modification, the proposed amendment to Rule 36.3 will serve the 

interests of the Commission and the Division of Enforcement in a manner that would .ensure both 

efficiency and fairness in its implementation. 

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We appreciate the opportunity to comment upon the Proposed Rules. Please call the undersigned 

at 770-738-2120 ifyou would like to discuss these issues further or ifyou require additional information. 

DC 388138 vi 

9/10/07 4:44PM (44268.0001) 

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