E8-17531. Fees for Reviews of the Rule Enforcement Programs of Contract Markets and Registered Futures Associations

AGENCY:

Commodity Futures Trading Commission.

ACTION:

Establish the FY 2008 schedule of fees.

SUMMARY:

The Commission charges fees to designated contract markets and registered futures associations to recover the costs incurred by the Commission in the operation of its program of oversight of self-regulatory organization (SRO) rule enforcement programs (17 CFR part 1 Appendix B) (National Futures Association (NFA), a registered futures association, and the contract markets are referred to as SROs). The calculation of the fee amounts to be charged for FY 2008 is based upon an average of actual program costs incurred during FY 2005, 2006, and 2007, as explained below. The FY 2008 fee schedule is set forth in the SUPPLEMENTARY INFORMATION. Electronic payment of fees is required.

DATES:

Effective Date: The FY 2008 fees for Commission oversight of each SRO rule enforcement program must be paid by each of the named SROs in the amount specified by no later than September 29, 2008.

FOR FURTHER INFORMATION CONTACT:

Stacy Dean Yochum, Deputy Executive Director, Commodity Futures Trading Commission, [phone], Three Lafayette Centre, 1155 21st Street, NW., Washington, DC 20581. For information on electronic payment, contact Angela Clark, Three Lafayette Centre, 1155 21st Street, NW., Washington, DC 20581, [phone].

SUPPLEMENTARY INFORMATION:

I. General

This notice relates to fees for the Commission's review of the rule enforcement programs at the registered futures associations ^[1] and designated contract markets (DCM), which are referred to as SROs, regulated by the Commission.

II. Schedule of Fees

Fees for the Commission's review of the rule enforcement programs at the registered futures associations and DCMs regulated by the Commission:

Entity	Fee amount
Chicago Board of Trade	$146,077
Chicago Mercantile Exchange	124,734
New York Mercantile Exchange	144,893
Kansas City Board of Trade	11,119
New York Board of Trade	37,662
Minneapolis Grain Exchange	28,181
HedgeStreet	10,194
Chicago Climate Futures Exchange	8,306
U.S. Futures Exchange	14,602
OneChicago	15,836
National Futures Association	450,419
Total	992,022

III. Background Information

A. General

The Commission recalculates the fees charged each year with the intention of recovering the costs of operating this Commission program.^[2] All costs are accounted for by the Commission's Management Accounting Structure Codes (MASC) system, which records each employee's time for each pay period. The fees are set each year based on direct program costs, plus an overhead factor.

B. Overhead Rate

The fees charged by the Commission to the SROs are designed to recover program costs, including direct labor costs and overhead. The overhead rate is calculated by dividing total Commission-wide overhead direct program labor costs into the total amount of the Commission-wide overhead pool. For this purpose, direct program labor costs are the salary costs of personnel working in all Commission programs. Overhead costs consist generally of the following Commission-wide costs: indirect personnel costs (leave and benefits), rent, communications, contract services, utilities, equipment, and supplies. This formula has resulted in the following overhead rates for the most recent three years (rounded to the nearest whole percent): 109 percent for fiscal year 2005, 109 percent for fiscal year 2006, and 140 percent for fiscal year 2007. The increase in the overhead rate for FY 2007 is due to refinement in the agency's reporting capabilities. In past years, the overhead rate did not accurately reflect the cost of benefits. The implementation of a new financial system revealed the inaccuracy and the 2007 overhead rate reflects the correct benefits amount. These overhead rates are applied to the direct labor costs to calculate the costs of oversight of SRO rule enforcement programs.

C. Conduct of SRO Rule Enforcement Reviews

Under the formula adopted in 1993 (58 FR 42643, Aug. 11, 1993), which appears at 17 CFR part 1 Appendix B, the Commission calculates the fee to recover the costs of its rule enforcement reviews and examinations, based on the three-year average of the actual cost of performing such reviews and examinations at each SRO. The cost of operation of the Commission's SRO oversight program varies from SRO to SRO, according to the size and complexity of each SRO's program. The three-year averaging computation method is intended to smooth out year-to-year variations in cost. Timing of the Commission's reviews and examinations may affect costs—a review or examination may span two fiscal years and reviews and examinations are not conducted at each SRO each year. Adjustments to actual costs may be made to relieve the burden on an SRO with a disproportionately large share of program costs.

The Commission's formula provides for a reduction in the assessed fee if an SRO has a smaller percentage of United States industry contract volume than its percentage of overall Commission oversight program costs. This adjustment reduces the costs so that, as a percentage of total Commission SRO oversight program costs, they are in line with the pro rata percentage for that SRO of United States industry-wide contract volume.

The calculation is made as follows: The fee required to be paid to the Commission by each DCM is equal to the lesser of actual costs based on the three-year historical average of costs for that DCM or one-half of average costs incurred by the Commission for each DCM for the most recent three years, plus a pro rata share (based on average trading volume for the most recent three years) of the aggregate of average annual costs of all DCMs for the most recent three years. The formula for calculating the second factor is: 0.5a + 0.5 vt = current fee. In this formula, “a” equals the average annual costs, “v” equals the percentage of total volume across DCMs over the last three years, and “t” equals the average annual costs for all DCMs. NFA has no contracts traded; hence, its fee is based simply on costs for the most recent three fiscal years.

This table summarizes the data used in the calculations and the resulting fee for each entity:

	3-year average actual costs	3-year % of volume	2008 Fee (lesser of actual or calculated fee)
Chicago Board of Trade	$146,077	32.4504	$146,077
Chicago Mercantile Exchange	124,734	54.5543	124,734
New York Mercantile Exchange	213,577	10.5981	144,893
Kansas City Board of Trade	20,918	0.1834	11,119
New York Board of Trade	62,615	1.7674	37,662
Minneapolis Grain Exchange	55,903	0.0637	28,181
HedgeStreet	20,293	0.0132	10,194
Chicago Climate Futures Exchange	16,594	0.0026	8,306
US Futures Exchange	28,692	0.0711	14,602
OneChicago	29,684	0.2764	15,836
Subtotal	719,088		541,603
National Futures Association	450,419		450,419
Total	1,169,507		992,022

An example of how the fee is calculated for one exchange, the Minneapolis Grain Exchange, is set forth here:

a. Actual three-year average costs equal $55,903.

b. The alternative computation is: (.5) ($55,903) + (.5) (.000637) ($719,088) = $28,181.

c. The fee is the lesser of a or b; in this case $28,181.

As noted above, the alternative calculation based on contracts traded is not applicable to NFA because it is not a DCM and has no contracts traded. The Commission's average annual cost for conducting oversight review of the NFA rule enforcement program during fiscal years 2005 through 2007 was $450,419 (one-third of $1,351,256). The fee to be paid by the NFA for the current fiscal year is $450,419.

Payment Method

The Debt Collection Improvement Act (DCIA) requires deposits of fees owed to the government by electronic transfer of funds (See 31 U.S.C. 3720). For information about electronic payments, please contact Angela Clark at [phone] or [e-mail], or see the CFTC Web site at http://www.cftc.gov,, specifically, http://www.cftc.gov/​cftc/​cftcelectronicpayments.htm.

Regulatory Flexibility Act

The Regulatory Flexibility Act, 5 U.S.C. 601, et seq., requires agencies to consider the impact of rules on small business. The fees implemented in this release affect contract markets and registered futures associations. The Commission has previously determined that contract markets and registered futures associations are not “small entities” for purposes of the Regulatory Flexibility Act. Accordingly, the Acting Chairman, on behalf of the Commission, certifies pursuant to 5 U.S.C. 605(b) that the fees implemented here will not have a significant economic impact on a substantial number of small entities.

Issued in Washington, DC, on July 24, 2008, by the Commission.

David Stawick,

Secretary of the Commission.

Footnotes

1.  NFA is the only registered futures association.

2.  See Section 237 of the Futures Trading Act of 1982, 7 U.S.C. 16a and 31 U.S.C. 9701. For a broader discussion of the history of Commission Fees, see 52 FR 46070 (Dec. 4, 1987).