On May 18, the Commodity Futures Trading Commission issued a proposed order in response to an application submitted by Southwest Power Pool, Inc. (SPP) to exempt certain contracts, agreements and transactions for the purchase or sale of energy-related products from provisions of the Commodity Exchange Act (CEA) and CFTC Regulations. The proposed exemption would specifically exempt “transmission congestion rights,” “energy transactions” and “operating reserve transactions,” as those terms are defined in the proposed order, and any person or class of persons offering, entering into, rendering advice or rendering other services with respect to such qualifying transactions from all provisions of the CEA other than the CFTC’s general anti-fraud and anti-manipulation authority and scienter-based prohibitions under Sections 2(a)(1)(B), 4(d), 4b, 4c(b), 4o, 4s(h)(1)(A), 4s(h)(4)(A), 6(c), 6(d), 6(e), 6c, 6d, 8, 9 and 13 of the CEA, and any implementing regulations promulgated thereunder.
In order to qualify for the exemption, each party to a qualifying transaction must be: (1) an “appropriate person,” as defined in Sections 4(c)(3)(A) through (J) of the CEA; (2) an “eligible contract participant,” as defined in Section 1a(18)(A) of the CEA and in CFTC Regulation 1.3(m); or (3) a person who actively participates in the generation, transmission or distribution of electric energy. The proposed order also would require that the qualifying transaction be offered or sold pursuant to SPP’s Federal Energy Regulatory Committee-approved tariff.
Interested persons may comment on the proposed order until June 22. The CFTC’s proposed order is available here.