Regulatory Developments: Proposed Order to Exempt Certain Non-Financial Energy Derivative Transactions That Affect the Delivery of Electricity

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On August 17, 2012, the Commodity Futures Trading Commission (CFTC) unanimously approved a Proposed Order to exempt certain non-financial energy derivative transactions between not-for-profit electric utilities from many of the requirements of the Commodity Exchange Act. To be eligible for the proposed exemption, such transactions must be between exempt entities which are defined as (i) government-owned electric utilities described by section 201(f) of the Federal Power Act (FPA); (ii) electric utilities owned by Federally recognized Indian tribes, otherwise subject to regulation as public utilities under the FPA; and (iii) cooperatively-owned electric utilities, regardless of whether such utilities are described by FPA section 201(f), so long as they are treated as cooperative organizations under the Internal Revenue Code.

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