FEDERAL ENERGY REGULATORY COMMISSION 

WASHINGTON, D. C.20426 

OFFICE OF THE GENERAL COUNSEL 

November 2, 2009 · --~ • 

COMMENT 

Mr. David Stawick, Secretary 

Commodity Futures Trading Commission 

Three Lafayette Centre 

1155 21st Street, NW 

Washington, DC 20581 

Re: Notice of Intent, Pursuantto the Authority in Section 2(h)(7) of the 

Commodity Exchange Act and Commission Rule 36.3( c)(3), To Undertake 

a Determination Whether Certain Financial Basis Contracts Offered for 

Trading on the IntercontinentalExchange, Inc., Perform Significant Price 

:DiscoveryJfunctions (CornmentFiles 09-013 through 09-025) 

. ·Comments. of the Staffof the Federal Energy .Regulatory. Commission 

Dear Mr. Stawick: 

\ 

On October 5, 2009, the Commodity Futures Trading Commission (CFTC) 

issued notices of action and request for comment on whether certain natural gas 

financial basis contracts offered for trading on the IntercontinentalExchange, Inc. 

(ICE), an exempt commercial market (ECM), perform significant price discovery 

functions. 1 While the comment period in these proceedings expired on October 

26, 2009, I respectfully request leave to file the comments of the staffofthe 

Federal Energy Regulatory Commission (FERC) out of time. 

1 The contracts are: the San Juan Financial Basis Contract; the 

TETCO-M3Financial Basis Contract; the Zone 6-NY Financial Basis Contract; the 

AECO Financial Basis Contract; the Chicago Financial Basis Contract; the 

Dominion-South FinancialB_asis Contract; the_HSC Financial Basis Contract; the 

Malin Financial Basis Contract; th~ NGPL TX-OK Financial Basis Contract; the 

Permian Financial Basis Contract; the PG&E Citygate Financial Basis Contract; 

the TCO Financial Basis Contract; and the Waha Financial Basis Contract. 

-,. 
i Mr. David Stawick, Secretary 

November 2, 2009 

Page2 

Under the CFTC's rules implementing the Reauthorization Act of2008, an 

ECM with significant price discovery contracts (SPDCs) is subject to certain selfregulatory and reporting requirements, as well as certain CFTC oversight 

authorities, with respect to those contracts. Specifically, such regulatory authority 

applies to agreements, contracts or transactions in exempt commodities (which 

includes natural gas) executed on an electronic trading facility by certain eligible 

commercial entities on a principal-to-principal basis if the CFTC determines, in its 

discretion, that any such agreement, contract or transaction performs a significant 

price discovery function. If the CFTC determines that a particular agreement, 

contract or transaction performs a significant price discovery function, the ECM 

must demonstrate, with respect to that contract, compliance with nine "core 

principles" set forth in section 2(h)(7)(C) of the Commodity Exchange Act (CEA) 

and the CFTC's rules thereunder. 

FERC understands that some entities may argue that designation of certain 

contracts as SPDCs could affect consumers adversely. FERC's regulatory role 

generally is to ensure an adequate supply of energy at reasonable prices for 

consumers.· In our view, the statutory provisions on SPDCs can and should be 

implemented in a way helpful to consumers, and we recognize that the CFTC will 

give appropriate consideration to the interests of consumers. 

We also understand that the above-referenced contracts are cash-settled 

basis contracts and that none of them contemplates the actual physical delivery of 

natural gas. While a determination by the CFTC that any of these contracts 

performs a significant price discovery function would not appear to conflict with 

FERC's exclusive jurisdiction under the Natural Gas Act (NGA) over certain sales 

of natural gas in interstate commerce for resale or with its other regulatory 

responsibilities under the NGA, the FERC staff will continue to monitor for any 

such conflict. Moreover, the FERC staffwill monitor other similar determinations 

that could conflict with the FERC's regulation of wholesale natural gas markets. 

Accordingly, the FERC staff will advise the CFTC of any potential conflicts with 

the FERC's exclusive jurisdiction over certain sales of gas in interstate commerce 

for resale. 
Mr. David Stawick, Secretary 

November 2, 2009 

Page 3 

The FERC staff thanks the CFTC for soliciting comments on its review of 

the ICE contracts. Any questions or comments on this submission may be directed 

to: 

The Federal Energy Regulatory Commission 

Office of the General Counsel 

888 First Street, NE 

Washington, DC 20426 

Attention: Andrew F. MacDonald 

Phone:202-502-6541 

Cc: Jon Wellinghoff, Chairman 

Suedeen G. Kelly, Commissioner 

Phillip D. Moeller, Commissioner 

Marc L. Spitzer, Commissioner 

Sincerely, 

Thomas R. Sheets 

General Counsel 

Office of the General Counsel 

Federal Energy Regulatory Commission