Concept Release on the Appropriate Regulatory Treatment of Event Contracts, 25669-25674 [E8-9981]

Agencies

• Commodity Futures Trading Commission

[Federal Register Volume 73, Number 89 (Wednesday, May 7, 2008)]
[Notices]
[Pages 25669-25674]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-9981]


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COMMODITY FUTURES TRADING COMMISSION


Concept Release on the Appropriate Regulatory Treatment of Event 
Contracts

AGENCY: Commodity Futures Trading Commission.

ACTION: Request for Public Comment.

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SUMMARY: The Commodity Futures Trading Commission (Commission or CFTC) 
is soliciting comment on the appropriate regulatory treatment of 
financial agreements offered by markets commonly referred to as event, 
prediction, or information markets.\1\ For ease of reference and to 
avoid classification issues, these financial agreements are referred to 
herein as event contracts. In general, event contracts are neither 
dependent on, nor do they necessarily relate to, market prices or 
broad-based measures of economic or commercial activity.\2\ Rather, 
event contracts may be based on eventualities and measures as varied as 
the world's population in the year 2050, the results of political 
elections, or the outcome of particular entertainment events.\3\ The 
Commission's staff has received a substantial number of requests for 
guidance on the propriety of trading various event contracts under the 
regulatory rubric of the Commodity Exchange Act (CEA or Act). Given the 
substantive and practical concerns that may arise from applying federal 
regulation to event contracts and markets, the Commission believes that 
it is appropriate to solicit and consider the public's comments in 
advance of issuing any definitive guidance.
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    \1\ See Michael Gorham, Event Markets Campaign for Respect, 
Futures Industry Magazine (Jan./Feb. 2004); Justin Wolfers and Eric 
W. Zitzewitz, Prediction Markets, 18 J. Econ. Persp. 107 (Spring 
2004); Robert W. Hahn and Paul C. Tetlock, Using Information Markets 
to Improve Public Decision Making, AEI-Brookings Joint Center for 
Regulatory Studies Working Paper 04-18 (March 2005); Hal R. Varian, 
Can Markets Be Used to Help People Make Nonmarket Decisions?, The 
New York Times (May 8, 2003).
    \2\ The term event contract is not intended to encompass 
contracts that generate trading prices that predictably correlate 
with market prices or broad-based measures of economic or commercial 
activity, or contracts which substantially replicate other commodity 
derivatives contracts, such as binary options on exchange rates or 
the price of crude oil. The aforementioned contracts are 
unambiguously subject to CFTC regulation.
    \3\ See, e.g., Retired claims list at the Foresight Exchange, 
available at https://www.ideosphere.com/fx-bin/ListClaims.

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DATES: Comments must be received by July 7, 2008.

ADDRESSES: Comments should be sent to the Commodity Futures Trading 
Commission, Three Lafayette Centre, 1155 21st Street, NW., Washington, 
DC 20581, Attention: Office of the Secretariat. Comments may be sent by 
facsimile to 202.418.5521, or by e-mail to secretary@cftc.gov. 
Reference should be made to the ``Concept Release on the Appropriate 
Regulatory Treatment of Event Contracts.'' Comments may also be 
submitted through the Federal eRulemaking Portal at https://
www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Bruce Fekrat, Special Counsel, Office 
of the Director (telephone 202.418.5578, e-mail bfekrat@cftc.gov), 
Division of

[[Page 25670]]

Market Oversight, Commodity Futures Trading Commission, Three Lafayette 
Centre, 1155 21st Street, NW., Washington, DC 20581.

SUPPLEMENTARY INFORMATION:

I. Introduction

A. Purpose of the Release

    Since 2005, the Commission's staff has received a substantial 
number of requests for guidance on the propriety of offering and 
trading financial agreements that may primarily function as information 
aggregation vehicles. These event contracts generally take the form of 
financial agreements linked to eventualities or measures that neither 
derive from, nor correlate with, market prices or broad economic or 
commercial measures. Event contracts have been based on a wide variety 
of interests including the results of presidential elections, the 
accomplishment of certain scientific advances, world population levels, 
the adoption of particular pieces of legislation, the outcome of 
corporate product sales, the declaration of war and the length of 
celebrity marriages. In response to the various requests for guidance, 
and to promote regulatory certainty, the Commission has commenced a 
comprehensive review of the Act's applicability to event contracts and 
markets. To further its review, the Commission is issuing this release 
to solicit the expertise of interested persons, including CFTC-
registered markets, exempt markets, over-the-counter derivatives 
dealers, capital market participants, legal practitioners, state and 
federal regulatory authorities, academicians and research institutions 
with respect to the practical and regulatory issues relevant to 
regulating event contracts and markets.
    Broadly speaking, the Commission must determine:
    1. Whether event contracts are within the Commission's jurisdiction 
and if so, why (or why not)?
    2. If event contracts are within the Commission's jurisdiction, 
should there be exemptions or exclusions applied to them and if so, why 
(or why not)?
    3. How should the Commission address the potential gaming aspects 
of some event contracts and the possible pre-emption of state gaming 
laws?
    The Commission urges interested persons to provide detailed and 
comprehensive comments that will assist the Commission in conducting 
its review and analysis of the Commission's regulatory purview over 
event contracts, the interests that may appropriately underlie 
Commission-regulated transactions, and the appropriate regulatory 
treatment of markets that may offer event contracts.

B. CFTC Experience With Event Contracts

    The Iowa Electronic Markets (IEM), an electronic trading facility 
that functions as an experimental and academic program, is one of the 
better known and oft discussed real-money event markets currently in 
operation.\4\ The IEM operates in part pursuant to a 1993 no-action 
letter issued by Commission staff which, without asserting jurisdiction 
or describing the potential parameters of the Commission's regulatory 
purview over the market, allows the IEM to list various event contracts 
subject to certain conditions and limitations for covered contracts.\5\
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    \4\ The IEM is run by the University of Iowa Departments of 
Accounting and Economics and the University's College of Business 
Administration.
    \5\ CFTC Staff Letter No. 93-66 [1992-1994 Transfer Binder] 
Comm. Fut. L. Rep. (CCH) ] 25,785 (June 18, 1993). This no-action 
letter superseded the operative terms of a more limited letter 
issued to the IEM in 1992. The 1993 letter's relief extends to IEM 
contracts based on political elections, economic indicators, and 
certain currency exchange rates. The letter requires that the IEM 
limit access to any one submarket to between 1,000 and 2,000 
traders. The letter also sets the maximum amount that any single 
participant can risk in any one submarket at five hundred dollars. 
The letter makes clear that relief is premised on, among other 
factors, the IEM's representations concerning the market's specific 
manner of operation and academic purpose, and the assurance that the 
IEM will not receive any profit or other form of compensation from 
its activities.
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    The IEM continues to be most recognized for its presidential 
election contracts. The IEM offers a vote share contract and a winner-
take-all contract for the 2008 U.S. presidential election cycle. Its 
vote share contract is ultimately associated with the candidates that 
will be nominated by each party. Each vote share contract has a maximum 
value of $1 and a contract payout that is directly based on the 
percentage of the popular vote received by each of the two major party 
candidates. For instance, a contract for a candidate who receives 40% 
of the popular votes cast for both candidates will be worth $.40 at 
settlement.
    In contrast, the IEM's 2008 presidential election winner-take-all 
contract will have a value of either $1 or $0 at settlement. The IEM's 
winner-take-all-contract is also associated with a specific candidate, 
but instead of having a payout that is tied to a particular percentage 
of the popular vote received by each candidate, the contract will 
distribute a fixed payout of $1 to its holder if and only if the 
candidate referenced by the contract receives a greater percentage of 
the popular vote cast. Although the IEM's presidential election 
contracts are imperfect vehicles for the discovery of information, 
there is some consensus on the question of whether the IEM's contracts 
can function capably as predictive tools.\6\ Indeed, trading data 
generated by some IEM presidential election contracts arguably have 
produced better predictive indicators than data obtained from 
professional polling organizations.\7\
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    \6\ See, e.g., Michael Abramowicz, Information Markets, 
Administrative Decision Making, and Predictive Cost-Benefit 
Analysis, 71 U. Chi. L. Rev. 933, 950 (2004).
    \7\ See Cass R. Sunstein, Group Judgments: Statistical Means, 
Deliberation, and Information Markets, 80 N.Y.U. L. Rev. 962, 1029-
31 (June 2005).
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II. Commodity Options and Futures and the Attributes of Event Contracts

    The Commission, with some exceptions, has exclusive jurisdiction 
over two relevant types of derivative instruments--commodity options 
and commodity futures contracts. Section 4c(b) of the Act gives the 
Commission plenary jurisdiction over commodity options, and provides 
that ``[n]o person shall * * * enter into * * * any transaction 
involving any commodity regulated under this Act which is of the 
character of, or is commonly known to the trade as, an option * * * 
contrary to any rule, regulation or order of the Commission[.]'' 
Section 2(a)(1)(A) of the Act provides that the Commission shall have 
exclusive jurisdiction with respect to accounts, agreements, and 
transactions (including options) involving contracts of sale of a 
commodity for future delivery. Event contracts, depending on their 
underlying interests, can be designed to exhibit the attributes of 
either options or futures contracts.
    A significant number of event contracts are structured as all-or-
nothing binary transactions commonly described as binary options.\8\ 
Binary event contracts typically pay out a fixed amount when an outcome 
either occurs or does not occur. The trading of such contracts can 
facilitate the discovery of information by assigning probabilities, 
through market-derived prices, to discrete eventualities. For example, 
a binary contract based on whether a particular person will run for the 
presidency in 2012, can pay a fixed $100 to its buyer if and only if 
that individual runs for the presidency in 2012. If the contract's 
traders believe that the likelihood of the individual's candidacy in 
2012 is around 17 percent, the price of the contract will be around

[[Page 25671]]

$17, and will approximate the market's consensus expectation of the 
individual's candidacy.
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    \8\ See, e.g., Intrade Prediction Markets, Current Events 
Contracts at https://www.intrade.com/jsp/intrade/contractSearch/.
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    In addition to binary event transactions, the term event contract 
has also been used to identify transactions, based on interests other 
than market prices, which resemble futures contracts. For instance, 
these types of event contracts can price consensus estimates of moving 
values, such as the number of hours the average U.S. resident spends in 
traffic or the share of votes that a particular candidate for political 
office may receive. Unlike binary transactions, and similar to any 
commodity futures contract, this type of contract creates continuous 
and ongoing obligations that are linked to moving measures or levels, 
as opposed to being dependent on the outcome of a single discrete 
occurrence.

III. The Commission's Regulatory Purview

    As discussed above, with some limited exceptions, the regulatory 
purview of the Act extends to and includes transactions that are either 
structured as options or futures when such transactions involve 
interests that constitute commodities under the Act. Section 1a(4) of 
the Act defines commodity in two distinct ways. First, Section 1a(4) 
specifically enumerates certain articles or goods as commodities.\9\ 
Second, Section 1a(4) defines the term commodity as including those 
articles or goods, and services, rights or interests, ``in which 
contracts for future delivery are presently or in the future dealt 
in.'' Therefore, an underlying interest that is not enumerated in 
Section 1a(4) may be a statutory commodity under the Act if it 
reasonably can underlie a futures contract on a forward looking 
basis.\10\
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    \9\ 7 U.S.C. 1a(4). Section 1a(4) of the Act enumerates the 
following commodities: wheat, cotton, rice, corn, oats, barley, rye, 
flaxseed, grain sorghums, mill feeds, butter, eggs, Solanum 
tuberosum (Irish potatoes), wool, wool tops, fats and oils 
(including lard, tallow, cottonseed oil, peanut oil, soybean oil, 
and all other fats and oils), cottonseed meal, cottonseed, peanuts, 
soybeans, soybean meal, livestock, livestock products, and frozen 
concentrated orange juice.
    \10\ See United States v. Valencia, No. H-03-024, 2003 WL 
23174749 at *8 (S.D. Tex Aug. 25, 2003) (noting that the 
determination of whether West Coast natural gas is ``a commodity in 
which contracts for future delivery are presently or in the future 
dealt in,'' is a fact question, and that ``there is no evidence that 
West Coast gas could not in the future be traded on a futures 
exchange.'').
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    In addition to Section 1a(4), Section 1a(13) of the Act identifies 
certain interests as excluded commodities and thereby gives further 
shape to the statutory definition of commodity.\11\ The Section 1a(13) 
definition of excluded commodity is composed of four subsections. The 
third subsection defines the term to include any economic or commercial 
index that is based on prices, rates, values, or levels not within the 
control of any party to the relevant contract. The fourth subsection of 
Section 1a(13) provides that an excluded commodity includes an 
occurrence, extent of an occurrence, or contingency associated with a 
financial or economic consequence that is not within the control of the 
parties to the relevant transaction.
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    \11\ 7 U.S.C. 1a(13). Section 1a(13) of the Act provides that:
    The term ``excluded commodity'' means--
    (i) an interest rate, exchange rate, currency, security, 
security index, credit risk or measure, debt or equity instrument, 
index or measure of inflation, or other macroeconomic index or 
measure;
    (ii) any other rate, differential, index, or measure of economic 
or commercial risk, return, or value that is--
    (I) not based in substantial part on the value of a narrow group 
of commodities not described in clause (i); or
    (II) based solely on one or more commodities that have no cash 
market;
    (iii) any economic or commercial index based on prices, rates, 
values, or levels that are not within the control of any party to 
the relevant contract, agreement, or transaction; or
    (iv) an occurrence, extent of an occurrence, or contingency 
(other than a change in the price, rate, value, or level of a 
commodity not described in clause (i)) that is--
    (I) beyond the control of the parties to the relevant contract, 
agreement, or transaction; and
    (II) associated with a financial, commercial, or economic 
consequence.
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    For the purpose of discussion and analysis, the types of event 
contracts that Commission staff has reviewed can be categorized, albeit 
imperfectly, as contracts that are based on narrow commercial measures 
and events, contracts based on certain environmental measures and 
events, and contracts based upon general measures and events. Narrow 
commercial measures quantify and reflect the rate, value, or level of 
particularized commercial activity, such as a specific farmer's crop 
yield. Narrow commercial events, on the other hand, are events that 
might, in and of themselves, have commercial implications, such as 
changes in corporate officers or corporate asset purchases.
    Environmental measures can be characterized as quantifications of 
weather phenomena, such as the volatility of precipitation or 
temperature levels, that do not predictably correlate to commodity 
market prices or other measures of broad economic or commercial 
activity. By comparison, environmental events can include the formation 
of a specific type of storm, within an identifiable geographic region, 
the likelihood of which will not predictably correlate to commodity 
market prices or measures of broad economic or commercial activity.
    General measures can be described as measures that are not 
commercial or environmental measures. As such, general measures do not 
quantify the rate, value, or level of any commercial or environmental 
activity and can, for example, include the number of hours that U.S. 
residents spend in traffic annually or the vote-share of a particular 
presidential candidate. Similarly, general events, such as whether a 
Constitutional amendment will be adopted or whether two celebrities 
will decide to marry, can be described as events that do not reflect 
the occurrence of any commercial or environmental event. The category 
of general measures and events can be further divided into a multitude 
of subcategories, such as political or entertainment measures or 
events.
    Since 1992, Commission-regulated exchanges have listed for trading 
a variety of commodity futures and options contracts with payout terms 
based on interests other than price-based interests. These contracts 
involve interests as diverse as regional insured property losses, the 
count of bankruptcies, temperature volatilities, corporate mergers, and 
corporate credit events.\12\ While not strictly price-based, the 
interests underlying these contracts have been viewed by Commission 
staff as having generally-accepted and predictable financial, 
commercial or economic consequences. In other words, unlike the 
interests that event contracts cover, these underlying interests have 
been viewed as measures and occurrences that reasonably could be 
expected to correlate to market prices or other broad-based commercial 
or economic measures or activities.
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    \12\ For example, the Chicago Board of Trade's catastrophe 
single event insurance option contracts (which are no longer listed) 
paid out a fixed amount if and only if insured property damage 
exceeded $10 billion for a specific region during a specified 
interval of time.
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 IV. Further Statutory Background

    Federal regulations were initially applied to commodity derivatives 
trading in 1921.\13\ At that time, Congress

[[Page 25672]]

acknowledged that commodity futures markets could benefit commerce by 
facilitating the hedging of commercial risks and the discovery of 
reliable commodity prices.\14\ The Grain Futures Act of 1922, the 
forerunner to the CEA, consequently was enacted to promote the 
financial vitality of futures trading by limiting price manipulations 
and other disturbances that were prevalent at the time and widely 
perceived to result from excessive speculation.\15\
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    \13\ See, e.g., Hearing on Futures Trading Before the House 
Committee on Agriculture, 66th Cong., 3rd Sess. 1043 (1921); 
Hearings on H.R. 5676 Before the Senate Committee on Agriculture and 
Forestry, 67th Cong., 1st Sess. 452 (1921); Hearings on Futures 
Trading Before the House Committee on Agriculture, 67th Cong. 1st 
Sess. 7-9 (1921); 61 Cong. Rec. 4761 (1921) (remarks of Senator 
Capper, the sponsor of the Senate bill which became the Futures 
Trading Act of 1921 (later restyled as the Grain Futures Act of 1922 
when found to be unconstitutional for its use of taxation to 
penalize off-exchange futures trading)).
    \14\ See S. Rep. No. 871 (August 23, 1922). The Congressional 
record is replete with discussion of the commercial importance of 
commodity futures trading. The record suggests that commercial 
interests must be able to look to properly functioning commodity 
futures markets for market information and products that facilitate 
the making of marketing, financing, and distribution decisions. S. 
Rep. No. 93-1131, at 12 (1974). The Congressional record also 
indicates that an initial purpose behind regulating commodity 
futures trading was to secure fair and orderly markets for producers 
and other commercial participants who used the markets for price 
basing and hedging. Hearings on S. 2485, S. 2578, S. 2837 and H.R. 
1311 before the Senate Committee on Agriculture and Forestry, 93d 
Cong., 2d Sess. at 234 (1974); see also 80 Cong. Rec. 10739 (April 
11, 1974).
    \15\ E.g., 61 Cong. Rec. 4761-4763 (1921) (remarks of Senator 
Capper); 61 Cong. Rec. 1379 (1921) (remarks of Rep. Bland); 61 Cong. 
Rec. 1313-1314 (remarks of Rep. Tincher, the sponsor of the House 
bill which became the 1921 Act); 61 Cong. Rec. 1376 (1921) (remarks 
of Rep. Gensman).
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    In identifying the national public interests that render federal 
regulation necessary, the Act focuses on the commercial benefits that 
well-functioning derivatives markets can provide by broadly expressing 
their critical functions. Customarily, hedging and price basing have 
been identified as two critical functions of the commodity derivatives 
markets.\16\ For instance, Section 3 of the Act, as amended by the 
Commodity Futures Modernization Act of 2000 (CFMA),\17\ finds that 
transactions subject to the CEA are affected with the national public 
interest because they provide a means for ``managing and assuming price 
risks.'' Section 3 of the Act also identifies price discovery and price 
dissemination as separate public interests warranting Federal 
regulation.\18\
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    \16\ Hedging occurs when positions acquired are economically 
appropriate to the reduction of risks in the conduct and management 
of a commercial enterprise. See, e.g., 17 CFR 1.3(z) (definition of 
bona fide hedging). Price basing, a function of price discovery and 
dissemination, can occur when commercial entities enter into 
transactions in a particular commodity based upon commodity futures 
prices for that or a related commodity, oftentimes at a 
differential.
    \17\ Appendix E, section 108, Pub. L. 106-554, 114 Stat. 2763.
    \18\ The hedging and price basing purposes of commodity futures 
trading are emphasized in other provisions of the Act as well. See, 
e.g., 7 U.S.C. 6a, 6b, and 6c. As a matter of background, the 
provision in the Grain Futures Act that was the forerunner of 
current CEA Section 3 provided that:
    Transactions in grain involving the sale thereof for future 
delivery as commonly conducted on boards of trade and known as 
``futures'' are affected with a national public interest; that such 
transactions are carried on in large volume by the public generally 
and by persons engaged in the business of buying and selling grain 
and the products and by-products thereof in interstate commerce; 
that the prices involved in such transactions are generally quoted 
and disseminated throughout the United States and in foreign 
countries as a basis for determining the prices to the producer and 
the consumer of grain and the products and by-products thereof and 
to facilitate the movements thereof in interstate commerce; that 
such transactions are utilized by shippers, dealers, millers, and 
others engaged in handling grain and the products and by-products 
thereof in interstate commerce as a means of hedging themselves 
against possible loss through fluctuations in price; that the 
transactions and prices of grain on such boards of trade are 
susceptible to speculation, manipulation, or control, which are 
detrimental to the producer or the consumer and the persons handling 
grain and products and by-products thereof in interstate commerce, 
and that such fluctuations in prices are an obstruction to and a 
burden upon interstate commerce in grain and the products and by-
products thereof and render regulation imperative for the protection 
of such commerce and the national public interest therein.
    Grain Futures Act, ch. 369, 42 Stat. 998 (Sept. 21, 1922). In 
1936, Congress restyled the Grain Futures Act as the Commodity 
Exchange Act and amended this provision to substitute the word 
``commodity'' for ``grain.'' Pub. L. 74-675, section 2, 49 Stat. 
1491 (June 15, 1936).
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    Although repealed by the CFMA, former Section 5(g) \19\ of the Act 
may be relevant to analyzing the findings and purposes discussed in 
Section 3 of the Act. Former Section 5(g) provided that the Commission 
could not designate a board of trade as a contract market unless the 
board of trade demonstrated that transactions for future delivery in 
the commodity for which designation as a contract market was sought 
``will not be contrary to the public interest.'' \20\ The public 
interest test of Section 5(g) included an ``economic purpose'' test, 
subject to a final test of the public interest.\21\ The economic 
purpose test applied under former Section 5(g) was used to prohibit the 
trading of certain contracts. Notably, the economic purpose test 
regarding contracts appropriate for trading on a futures exchange was 
not necessarily congruent with the scope of the Commission's 
jurisdiction. Accordingly, while futures contracts that failed the 
economic purpose test were prohibited from trading on futures exchanges 
and thus illegal because of the on-exchange trading requirement, they 
(and any instrument with identical terms) remained futures contracts, 
fully subject to the Commission's jurisdiction.
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    \19\ 7 U.S.C. 7(g), as amended by the Commodity Futures Trading 
Commission Act of 1974, Pub. L. 93-463, 88 Stat. 1389 (1974). In 
1992, Section 5(g) was redesignated Section 5(7) of the Act. See 
Futures Trading Practices Act of 1992, Pub. L. 102-546, 106 Stat. 
3590 (1992). The CFMA repealed all of former Section 5 of the Act, 
including Section 5(g) (redesignated as Section 5(7)), and replaced 
it with current Section 5. Section 5 was radically restructured by 
the CFMA to provide for designation criteria and core principles 
with which a DCM must comply. Appendix E of Pub. L. 106-554, 114 
Stat. 2763 (2000).
    \20\ The House Committee on Agriculture stressed that contracts 
that could be expected to be used almost entirely for speculation 
would be against the public interest. H.R. Rep. No. 975, 93 Cong., 
2d Sess. 29 (1974).
    \21\ See H.R. Rep. No. 1383, 93d Cong., 2d Sess. 36 (1974).
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    By enacting the CFMA, Congress sought ``to promote innovation for 
futures and derivatives and to reduce systemic risk by enhancing legal 
certainty in the markets for certain futures and derivatives 
transactions[.]'' \22\ As demonstrated by the IEM, innovative event 
markets have the capacity to facilitate the discovery of information, 
and thereby provide potential benefits to the public. Subject to 
certain exceptions, Section 4(c)(1) of the Act gives the Commission the 
authority to ``promote responsible economic or financial innovation and 
fair competition'' by exempting any transaction or class of 
transactions from any of the provisions of the Act, including the 
requirement that they trade on Commission-regulated markets, where the 
Commission determines that such action would be consistent with the 
public interest. Pursuant to Section 4(c), Congress gave to ``the 
Commission a means of providing certainty and stability to existing and 
emerging markets so that financial innovation and market development 
can proceed in an effective and competitive manner.'' \23\ Under 
Section 4(c), the Commission has the discretion to grant an exemption 
to certain classes of transactions without having to make a 
determination that such transactions are subject to the Act in the 
first instance.\24\ Notably, the Commission can use its Section 4(c)

[[Page 25673]]

exemptive authority not only on a case-by-case, or product-by-product 
basis, but may also use the authority to establish a set of regulatory 
provisions applicable to a defined class of products.
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    \22\ House Report No. 106-711(III) September 6, 2000.
    \23\ House Conference Report 102-978, 1992 U.S.C.C.A.N. 3179, 
3213.
    \24\ With respect to the exercise of this discretion, the House-
Senate Conference Committee responsible for the review of Section 
4(c) stated that:
    The Conferees do not intend that the exercise of exemptive 
authority by the Commission would require any determination 
beforehand that the agreement, instrument, or transaction for which 
an exemption is sought is subject to the Act. Rather, this provision 
provides flexibility for the Commission to provide legal certainty 
to novel instruments where the determination as to jurisdiction is 
not straightforward. Rather than making a finding as to whether a 
product is or is not a futures contract, the Commission in 
appropriate cases may proceed directly to issuing an exemption.
    Conf. Report at 3214-3215. Although Section 4(c) only speaks to 
futures contracts, Section 4c(b) of the Act, the Commission's 
plenary authority to regulate transactions that involve commodity 
options, provides the Commission with comparable exemptive authority 
for options.
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V. Issues for Comment

A. Request for Comment

    The following questions consider the Commission's regulatory 
purview over event contracts, the interests that may appropriately 
underlie Commission-regulated transactions, and the appropriate 
regulatory treatment of event contracts. The Commission encourages 
comments on the specific questions posed, as well as the broad range of 
issues raised in this concept release. In providing comments, please 
describe your relevant experience and discuss in detail the facts and 
legal provisions that support your conclusions. Furthermore, please 
consider the Commission's mandate to protect commodity futures and 
options markets and customers, and ensure the integrity of the 
commodity derivatives marketplace, as well as the expected effects of 
any Commission action on competition, efficiency, innovation and the 
financial integrity of transactions. Any recommendation with respect to 
the regulatory treatment of event contracts and markets should be 
consistent with and supported by the Act, practical, and amenable to 
effective and efficient implementation.

B. Public Interest

    1. What public interests are served by event contracts that are 
designed and will principally be traded for information aggregation 
purposes and not for commercial risk management or pricing purposes?
    2. How are these interests consistent with the public interest 
goals embodied in the Act?
    3. What calculations, analyses, variables, and factors could be 
used to objectively determine the social value of information to the 
general public that may be discovered through trading in event 
contracts? Should this be a factor in determining whether the 
Commission plays a role in regulating these markets?

C. Jurisdictional Determinations

    4. What characteristics or traits are common to or should be used 
to identify event contracts and event markets?
    5. How do these characteristics and traits differ from those of 
commodity futures and options contracts that customarily have been 
regulated by the Commission? How are they similar?
    6. Are there criteria based on the provisions of the Act that could 
be used to make jurisdictional determinations with respect to event 
contracts and markets?
    7. Given the purposes and history of the Act, would it be 
appropriate for the Commission to apply a test premised on commercial 
risk management or pricing functions to demarcate the Commission's 
jurisdiction over particular contracts? If so, what factors could be 
used to make such a determination?
    8. Given the purposes and history of the Act, would it be 
appropriate for the Commission to apply any test premised on the 
economic purpose of certain types of transactions to demarcate the 
Commission's jurisdiction over particular contracts? If so, what 
factors could be used to make such a determination?
    9. What calculations, analyses, variables and factors would be 
appropriate in determining whether the impact of an occurrence or 
contingency will result in a financial, commercial or economic 
consequence that is identified in Section 1a(13) of the Act?
    10. What calculations, analyses, variables, and factors would be 
appropriate in determining whether an economic or commercial index that 
is based on prices, rates, values, or levels should or should not 
qualify as an excluded commodity under Section 1a(13) of the Act?
    11. What identifiable factors, statutorily based or otherwise, 
limit the events and measures that may underlie event contracts when 
such contracts are treated as Commission-regulated transactions?
    12. What objective and readily identifiable factors, statutorily 
based or otherwise, could be used to distinguish event contracts that 
could appropriately be traded under Commission oversight from 
transactions that may be viewed as the functional equivalent of 
gambling?
    13. The Commission notes that Section 12(e) of the Act generally 
provides that the CEA supersedes and preempts other laws, including 
state and local gaming and bucket shop laws, with respect to 
transactions executed on or subject to the rules of a Commission-
regulated market, or with respect to transactions exempted from the Act 
pursuant to the Commission's exemptive authority under Section 4(c) of 
the Act. What are the implications of possibly preempting state gaming 
laws with respect to event contracts and markets that are treated as 
Commission-regulated or exempted transactions?
    14. Should certain underlying events or measures--such as those 
based on assassinations or terrorist activities--be prohibited 
altogether due to the social perception and impact of such events? What 
statutory or other legal basis would support this treatment?
    15. Are there event contracts, such as political event contracts, 
that should be prohibited from trading under the Act, or that deserve 
separate treatment or consideration, due to the nature and importance 
of their outcomes? What statutory or other legal basis would support 
this treatment?

D. Legal Implementation

    16. Is it appropriate for the Commission to direct certain or all 
event contracts onto markets that are regulated differently from and 
perhaps less stringently than DCMs? For example, it may be warranted or 
necessary to treat event markets that aggregate information solely for 
academic or research purposes, event markets set-up for internal 
corporate purposes, or event markets that offer exceedingly low 
notional value contracts to traders differently than markets that 
possess the attributes of traditional DCMs.
    17. Is it appropriate for the Commission to use the Section 4(c) 
exemptive authority of the Act for implementing a regulatory scheme for 
event contracts and markets? In this regard, the Commission notes that 
it has the discretion to grant an exemption under Section 4(c) to 
certain classes of transactions without having to make a determination 
as to whether such transactions are subject to the Act in the first 
instance.
    18. Is the issuance of staff no-action relief, such as the relief 
issued to the IEM, an appropriate or preferable means for establishing 
regulatory certainty for event contracts and markets? Is a policy 
statement appropriate or preferable?
    19. What are the benefits and drawbacks of permitting certain event 
markets to operate pursuant to Commission established conditions that 
are similar to the conditions under which the IEM operates?

E. Market Participants

    20. Would it be appropriate to allow market participants, and in 
particular, retail customers, to trade on Commission-regulated event 
markets with the knowledge that the Commission may not be able to 
effectively monitor the measures or events that underlie certain event 
contracts?
    21. What unique protections and prophylactic measures are 
appropriate or necessary for the protection of retail users of event 
contracts and markets?
    22. What are the implications of permitting the intermediation of 
event

[[Page 25674]]

contracts, including intermediation on behalf of retail market 
participants, both with respect to trade execution and clearing?
    23. Are there any types of trader or intermediary conduct, peculiar 
to event contracts and markets, that should be prohibited or monitored 
closely by regulators?
    24. What other factors could impact the Commission's ability, given 
its limited resources, to properly oversee or monitor trading in event 
contracts?

    Issued in Washington, DC, on May 1, 2008 by the Commission.
David A. Stawick,
Secretary of the Commission.
[FR Doc. E8-9981 Filed 5-6-08; 8:45 am]
BILLING CODE 6351-01-P