IIB
115th CONGRESS
1st Session
H. R. 238
IN THE SENATE OF THE UNITED STATES
January 17, 2017
Received; read twice and referred to the Committee on Agriculture, Nutrition, and Forestry
AN ACT
To reauthorize the Commodity Futures Trading Commission, to better protect futures customers, to provide end-users with market certainty, to make basic reforms to ensure transparency and accountability at the Commission, to help farmers, ranchers, and end-users manage risks, to help keep consumer costs low, and for other purposes.
Short title
This Act may be cited as the Commodity End-User Relief Act
.
Table of contents
The table of contents of this Act is as follows:
Sec. 1. Short title.
Sec. 2. Table of contents.
Title I—CUSTOMER PROTECTIONS
Sec. 101. Enhanced protections for futures customers.
Sec. 102. Electronic confirmation of customer funds.
Sec. 103. Notice and certifications providing additional customer protections.
Sec. 104. Futures commission merchant compliance.
Sec. 105. Certainty for futures customers and market participants.
Title II—COMMODITY FUTURES TRADING COMMISSION REFORMS
Sec. 201. Extension of operations.
Sec. 202. Consideration by the Commodity Futures Trading Commission of the costs and benefits of its regulations and orders.
Sec. 203. Division directors.
Sec. 204. Office of the Chief Economist.
Sec. 205. Procedures governing actions taken by Commission staff.
Sec. 206. Strategic technology plan.
Sec. 207. Internal risk controls.
Sec. 208. Subpoena duration and renewal.
Sec. 209. Applicability of notice and comment requirements of the Administrative Procedure Act to guidance voted on by the Commission.
Sec. 210. Judicial review of Commission rules.
Sec. 211. GAO study on use of Commission resources.
Sec. 212. Disclosure of required data of other registered entities.
Sec. 213. Elimination of certain leasing authority of the Commission.
Sec. 214. Reform of the Customer Protection Fund.
Title III—END-USER RELIEF
Sec. 301. Transactions with utility special entities.
Sec. 302. Utility special entity defined.
Sec. 303. Utility operations-related swap.
Sec. 304. End-users not treated as financial entities.
Sec. 305. Reporting of illiquid swaps so as to not disadvantage certain non-financial end-users.
Sec. 306. Relief for grain elevator operators, farmers, agricultural counterparties, and commercial market participants.
Sec. 307. Relief for end-users who use physical contracts with volumetric optionality.
Sec. 308. Commission vote required before automatic change of swap dealer de minimis level.
Sec. 309. Capital requirements for non-bank swap dealers.
Sec. 310. Harmonization with the Jumpstart Our Business Startups Act.
Sec. 311. Bona fide hedge defined to protect end-user risk management needs.
Sec. 312. Cross-border regulation of derivatives transactions.
Sec. 313. Exemption of qualified charitable organizations from designation and regulation as commodity pool operators.
Sec. 314. Small bank holding company clearing exemption.
Sec. 315. Core principle certainty.
Sec. 316. Treatment of Federal Home Loan Bank products.
Sec. 317. Treatment of certain funds.
Sec. 318. Procedure for obtaining certain intellectual property.
Sec. 319. Determination of predominant engagement.
Sec. 320. Treatment of transactions between affiliates.
Sec. 321. Requirements related to position limits.
Title IV—TECHNICAL CORRECTIONS
Sec. 401. Correction of references.
Sec. 402. Elimination of obsolete references to dealer options.
Sec. 403. Updated trade data publication requirement.
Sec. 404. Flexibility for registered entities.
Sec. 405. Elimination of obsolete references to electronic trading facilities.
Sec. 406. Elimination of obsolete reference to alternative swap execution facilities.
Sec. 407. Elimination of redundant references to types of registered entities.
Sec. 408. Clarification of Commission authority over swaps trading.
Sec. 409. Elimination of obsolete reference to the Commodity Exchange Commission.
Sec. 410. Elimination of obsolete references to derivative transaction execution facilities.
Sec. 411. Elimination of obsolete references to exempt boards of trade.
Sec. 412. Elimination of report due in
1986.Sec. 413. Compliance report flexibility.
Sec. 414. Miscellaneous corrections.
Sec. 415. Delay in full implementation of the final rule on ownership and control reporting.
CUSTOMER PROTECTIONS
Enhanced protections for futures customers
Section 17 of the Commodity Exchange Act (7 U.S.C. 21) is amended by adding at the end the following:
A registered futures association shall—
require each member of the association that is a futures commission merchant to maintain written policies and procedures regarding the maintenance of—
the residual interest of the member, as described in section 1.23 of title 17, Code of Federal Regulations, in any customer segregated funds account of the member, as identified in section 1.20 of such title, and in any foreign futures and foreign options customer secured amount funds account of the member, as identified in section 30.7 of such title; and
the residual interest of the member, as described in section 22.2(e)(4) of such title, in any cleared swaps customer collateral account of the member, as identified in section 22.2 of such title; and
establish rules to govern the withdrawal, transfer or disbursement by any member of the association, that is a futures commission merchant, of the member’s residual interest in customer segregated funds as provided in such section 1.20, in foreign futures and foreign options customer secured amount funds, identified as provided in such section 30.7, and from a cleared swaps customer collateral, identified as provided in such section 22.2.
.
Electronic confirmation of customer funds
Section 17 of the Commodity Exchange Act (7 U.S.C. 21), as amended by section 101 of this Act, is amended by adding at the end the following:
A registered futures association shall require any member of the association that is a futures commission merchant to—
use an electronic system or systems to report financial and operational information to the association or another party designated by the registered futures association, including information related to customer segregated funds, foreign futures and foreign options customer secured amount funds accounts, and cleared swaps customer collateral, in accordance with such terms, conditions, documentation standards, and regular time intervals as are established by the registered futures association;
instruct each depository, including any bank, trust company, derivatives clearing organization, or futures commission merchant, holding customer segregated funds under section 1.20 of title 17, Code of Federal Regulations, foreign futures and foreign options customer secured amount funds under section 30.7 of such title, or cleared swap customer funds under section 22.2 of such title, to report balances in the futures commission merchant’s section 1.20 customer segregated funds, section 30.7 foreign futures and foreign options customer secured amount funds, and section 22.2 cleared swap customer funds, to the registered futures association or another party designated by the registered futures association, in the form, manner, and interval prescribed by the registered futures association; and
hold section 1.20 customer segregated funds, section 30.7 foreign futures and foreign options customer secured amount funds and section 22.2 cleared swaps customer funds in a depository that reports the balances in these accounts of the futures commission merchant held at the depository to the registered futures association or another party designated by the registered futures association in the form, manner, and interval prescribed by the registered futures association.
.
Notice and certifications providing additional customer protections
Section 17 of the Commodity Exchange Act (7 U.S.C. 21), as amended by sections 101 and 102 of this Act, is amended by adding at the end the following:
A futures commission merchant that has adjusted net capital in an amount less than the amount required by regulations established by the Commission or a self-regulatory organization of which the futures commission merchant is a member shall immediately notify the Commission and the self-regulatory organization of this occurrence.
A futures commission merchant that does not hold a sufficient amount of funds in segregated accounts for futures customers under section 1.20 of title 17, Code of Federal Regulations, in foreign futures and foreign options secured amount accounts for foreign futures and foreign options secured amount customers under section 30.7 of such title, or in segregated accounts for cleared swap customers under section 22.2 of such title, as required by regulations established by the Commission or a self-regulatory organization of which the futures commission merchant is a member, shall immediately notify the Commission and the self-regulatory organization of this occurrence.
Within such time period established by the Commission after the end of each fiscal year, a futures commission merchant shall file with the Commission a report from the chief compliance officer of the futures commission merchant containing an assessment of the internal compliance programs of the futures commission merchant.
.
Futures commission merchant compliance
In general
Section 4d(a) of the Commodity Exchange Act (7 U.S.C. 6d(a)) is amended—
by redesignating paragraphs (1) and (2) as subparagraphs (A) and (B);
by inserting (1)
before It shall be unlawful
; and
by adding at the end the following new paragraph:
Any rules or regulations requiring a futures commission merchant to maintain a residual interest in accounts held for the benefit of customers in amounts at least sufficient to exceed the sum of all uncollected margin deficits of such customers shall provide that a futures commission merchant shall meet its residual interest requirement as of the end of each business day calculated as of the close of business on the previous business day.
.
Conforming amendment
Section 4d(h) of such Act (7 U.S.C. 6d(h)) is amended by striking Notwithstanding subsection (a)(2)
and inserting Notwithstanding subsection (a)(1)(B)
.
Certainty for futures customers and market participants
Section 20(a) of the Commodity Exchange Act (7 U.S.C. 24(a)) is amended—
by striking and
at the end of paragraph (4);
by striking the period at the end of paragraph (5) and inserting ; and
; and
by adding at the end the following:
that cash, securities, or other property of the estate of a commodity broker, including the trading or operating accounts of the commodity broker and commodities held in inventory by the commodity broker, shall be included in customer property, subject to any otherwise unavoidable security interest, or otherwise unavoidable contractual offset or netting rights of creditors (including rights set forth in a rule or bylaw of a derivatives clearing organization or a clearing agency) in respect of such property, but only to the extent that the property that is otherwise customer property is insufficient to satisfy the net equity claims of public customers (as such term may be defined by the Commission by rule or regulation) of the commodity broker.
.
COMMODITY FUTURES TRADING COMMISSION REFORMS
Extension of operations
Section 12(d) of the Commodity Exchange Act (7 U.S.C. 16(d)) is amended to read as follows:
Authorization of appropriations
There is authorized to be appropriated $250,000,000 for each of fiscal years 2017 through 2021 to carry out this Act.
.
Consideration by the Commodity Futures Trading Commission of the costs and benefits of its regulations and orders
Section 15(a) of the Commodity Exchange Act (7 U.S.C. 19(a)) is amended—
by striking paragraphs (1) and (2) and inserting the following:
In general
Before promulgating a regulation under this Act or issuing an order (except as provided in paragraph (3)), the Commission, through the Office of the Chief Economist, shall assess and publish in the regulation or order the costs and benefits, both qualitative and quantitative, of the proposed regulation or order, and the proposed regulation or order shall state its statutory justification.
Considerations
In making a reasoned determination of the costs and the benefits, the Commission shall evaluate—
considerations of protection of market participants and the public;
considerations of the efficiency, competitiveness, and financial integrity of futures and swaps markets;
considerations of the impact on market liquidity in the futures and swaps markets;
considerations of price discovery;
considerations of sound risk management practices;
available alternatives to direct regulation;
the degree and nature of the risks posed by various activities within the scope of its jurisdiction;
the costs of complying with the proposed regulation or order by all regulated entities, including a methodology for quantifying the costs (recognizing that some costs are difficult to quantify);
whether the proposed regulation or order is inconsistent, incompatible, or duplicative of other Federal regulations or orders;
the cost to the Commission of implementing the proposed regulation or order by the Commission staff, including a methodology for quantifying the costs;
whether, in choosing among alternative regulatory approaches, those approaches maximize net benefits (including potential economic and other benefits, distributive impacts, and equity); and
other public interest considerations.
; and
by adding at the end the following:
Judicial review
Notwithstanding section 24(d), a court shall affirm a Commission assessment of costs and benefits under this subsection, unless the court finds the assessment to be an abuse of discretion.
.
Division directors
Section 2(a)(6)(C) of the Commodity Exchange Act (7 U.S.C. 2(a)(6)(C)) is amended by inserting , and the heads of the units shall serve at the pleasure of the Commission
before the period.
Office of the Chief Economist
In general
Section 2(a) of the Commodity Exchange Act (7 U.S.C. 2(a)) is amended by adding at the end the following:
Office of the chief economist
Establishment
There is established in the Commission the Office of the Chief Economist.
Head
The Office of the Chief Economist shall be headed by the Chief Economist, who shall be appointed by the Commission and serve at the pleasure of the Commission.
Functions
The Chief Economist shall report directly to the Commission and perform such functions and duties as the Commission may prescribe.
Professional staff
The Commission shall appoint such other economists as may be necessary to assist the Chief Economist in performing such economic analysis, regulatory cost-benefit analysis, or research any member of the Commission may request.
.
Conforming amendment
Section 2(a)(6)(A) of such Act (7 U.S.C. 2(a)(6)(A)) is amended by striking (4) and (5) of this subsection
and inserting (4), (5), and (16)
.
Sense of the Congress
It is the sense of the Congress that the Commodity Futures Trading Commission should take all appropriate actions to encourage applications for positions in the Office of the Chief Economist from members of minority groups, women, disabled persons, and veterans.
Procedures governing actions taken by Commission staff
Section 2(a)(12) of the Commodity Exchange Act (7 U.S.C. 2(a)(12)) is amended—
by striking (12) The
and inserting the following:
Rules and regulations
In general
Subject to the other provisions of this paragraph, the
; and
by adding after and below the end the following new subparagraph:
Notice to commissioners
The Commission shall develop and publish internal procedures governing the issuance by any division or office of the Commission of any response to a formal, written request or petition from any member of the public for an exemptive, a no-action, or an interpretive letter and such procedures shall provide that the commissioners be provided with the final version of the matter to be issued with sufficient notice to review the matter prior to its issuance.
.
Strategic technology plan
Section 2(a) of the Commodity Exchange Act (7 U.S.C. 2(a)), as amended by section 204(a) of this Act, is amended by adding at the end the following:
Strategic technology plan
In general
Every 5 years, the Commission shall develop and submit to the Committee on Agriculture of the House of Representatives and the Committee on Agriculture, Nutrition, and Forestry of the Senate a detailed plan focused on the acquisition and use of technology by the Commission.
Contents
The plan shall—
include for each related division or office a detailed technology strategy focused on market surveillance and risk detection, market data collection, aggregation, interpretation, standardization, harmonization, normalization, validation, streamlining or other data analytic processes, and internal management and protection of data collected by the Commission, including a detailed accounting of how the funds provided for technology will be used and the priorities that will apply in the use of the funds;
set forth annual goals to be accomplished and annual budgets needed to accomplish the goals; and
include a summary of any plan of action and milestones to address any known information security vulnerability, as identified pursuant to a widely accepted industry or Government standard, including—
specific information about the industry or Government standard used to identify the known information security vulnerability;
a detailed time line with specific deadlines for addressing the known information security vulnerability; and
an update of any such time line and the rationale for any deviation from the time line.
.
Internal risk controls
Section 2(a)(12) of the Commodity Exchange Act (7 U.S.C. 2(a)(12)), as amended by section 205 of this Act, is amended by adding at the end the following:
Internal risk controls
The Commission, in consultation with the Chief Economist, shall develop comprehensive internal risk control mechanisms to safeguard and govern the storage of all market data by the Commission, all market data sharing agreements of the Commission, and all academic research performed at the Commission using market data.
.
Subpoena duration and renewal
Section 6(c)(5) of the Commodity Exchange Act (7 U.S.C. 9(5)) is amended—
by striking (5) Subpoena.—For
and inserting the following:
Subpoena
In general
For
; and
by adding after and below the end the following:
Omnibus orders of investigation
Duration and renewal
An omnibus order of investigation shall not be for an indefinite duration and may be renewed only by Commission action.
Definition
In clause (i), the term omnibus order of investigation
means an order of the Commission authorizing one of more members of the Commission or its staff to issue subpoenas under subparagraph (A) to multiple persons in relation to a particular subject matter area.
.
Applicability of notice and comment requirements of the Administrative Procedure Act to guidance voted on by the Commission
Section 2(a)(12) of the Commodity Exchange Act (7 U.S.C. 2(a)(12)), as amended by sections 205 and 207 of this Act, is amended by adding at the end the following:
Applicability of notice and comment rules to guidance voted on by the Commission
The notice and comment requirements of section 553 of title 5, United States Code, shall also apply with respect to any Commission statement or guidance, including interpretive rules, general statements of policy, or rules of Commission organization, procedure, or practice, that has the effect of implementing, interpreting or prescribing law or policy and that is voted on by the Commission.
.
Judicial review of Commission rules
The Commodity Exchange Act (7 U.S.C. 1 et seq.) is amended by adding at the end the following:
Judicial review of Commission rules
A person adversely affected by a rule of the Commission promulgated under this Act may obtain review of the rule in the United States Court of Appeals for the District of Columbia Circuit or the United States Court of Appeals for the circuit where the party resides or has the principal place of business, by filing in the court, within 60 days after publication in the Federal Register of the entry of the rule, a written petition requesting that the rule be set aside.
A copy of the petition shall be transmitted forthwith by the clerk of the court to an officer designated by the Commission for that purpose. Thereupon the Commission shall file in the court the record on which the rule complained of is entered, as provided in section 2112 of title 28, United States Code, and the Federal Rules of Appellate Procedure.
On the filing of the petition, the court has jurisdiction, which becomes exclusive on the filing of the record, to affirm and enforce or to set aside the rule in whole or in part.
The court shall affirm and enforce the rule unless the Commission’s action in promulgating the rule is found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; contrary to constitutional right, power, privilege, or immunity; in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; or without observance of procedure required by law.
.
GAO study on use of Commission resources
Study
The Comptroller General of the United States shall conduct a study of the resources of the Commodity Futures Trading Commission that—
assesses whether the resources of the Commission are sufficient to enable the Commission to effectively carry out the duties of the Commission;
examines the expenditures of the Commission on hardware, software, and analytical processes designed to protect customers in the areas of—
market surveillance and risk detection; and
market data collection, aggregation, interpretation, standardization, harmonization, and streamlining;
analyzes the additional workload undertaken by the Commission, and ascertains where self-regulatory organizations could be more effectively utilized; and
examines existing and emerging post-trade risk reduction services in the swaps market, the notional amount of risk reduction transactions provided by the services, and the effects the services have on financial stability, including—
market surveillance and risk detection;
market data collection, aggregation, interpretation, standardization, harmonization, and streamlining; and
oversight and compliance work by market participants and regulators.
Report
Not later than 180 days after the date of the enactment of this Act, the Comptroller General of the United States shall submit to the Committee on Agriculture of the House of Representatives and the Committee on Agriculture, Nutrition, and Forestry of the Senate a report that contains the results of the study required by subsection (a).
Disclosure of required data of other registered entities
Section 8 of the Commodity Exchange Act (7 U.S.C. 12) is amended by adding at the end the following:
Disclosure of required data of other registered entities
Except as provided in this subsection, the Commission may not be compelled to disclose any proprietary information provided to the Commission, except that nothing in this subsection—
authorizes the Commission to withhold information from Congress; or
prevents the Commission from—
complying with a request for information from any other Federal department or agency, any State or political subdivision thereof, or any foreign government or any department, agency, or political subdivision thereof requesting the report or information for purposes within the scope of its jurisdiction, upon an agreement of confidentiality to protect the information in a manner consistent with this paragraph and subsection (e); or
making a disclosure made pursuant to a court order in connection with an administrative or judicial proceeding brought under this Act, in any receivership proceeding involving a receiver appointed in a judicial proceeding brought under this Act, or in any bankruptcy proceeding in which the Commission has intervened or in which the Commission has the right to appear and be heard under title 11 of the United States Code.
Any proprietary information of a commodity trading advisor or commodity pool operator ascertained by the Commission in connection with Form CPO–PQR, Form CTA–PR, and any successor forms thereto, shall be subject to the same limitations on public disclosure, as any facts ascertained during an investigation, as provided by subsection (a); provided, however, that the Commission shall not be precluded from publishing aggregate information compiled from such forms, to the extent such aggregate information does not identify any individual person or firm, or such person’s proprietary information.
For purposes of section 552 of title 5, United States Code, this subsection, and the information contemplated herein, shall be considered a statute described in subsection (b)(3)(B) of such section 552.
For purposes of the definition of proprietary information in paragraph (5), the records and reports of any client account or commodity pool to which a commodity trading advisor or commodity pool operator registered under this title provides services that are filed with the Commission on Form CPO–PQR, CTA–PR, and any successor forms thereto, shall be deemed to be the records and reports of the commodity trading advisor or commodity pool operator, respectively.
For purposes of this section, proprietary information of a commodity trading advisor or commodity pool operator includes sensitive, non-public information regarding—
the commodity trading advisor, commodity pool operator or the trading strategies of the commodity trading advisor or commodity pool operator;
analytical or research methodologies of a commodity trading advisor or commodity pool operator;
trading data of a commodity trading advisor or commodity pool operator; and
computer hardware or software containing intellectual property of a commodity trading advisor or commodity pool operator;
.
Elimination of certain leasing authority of the Commission
Section 12(b)(3) of the Commodity Exchange Act (7 U.S.C. 16(b)(3)) is amended—
by striking including, but not limited to,
and inserting excluding
; and
by adding at the end the following new sentence: In the case of an existing lease contract entered into under this paragraph, the Commission may not extend the lease term, but may agree to any other contract modification that does not result in any additional cost to the Federal Government.
.
Reform of the Customer Protection Fund
Section 23(g) of the Commodity Exchange Act (7 U.S.C. 26(g)) is amended—
in paragraph (2)—
in the matter preceding subparagraph (A), by striking or fiscal year limitation
;
in subparagraph (A), by striking ; and
and inserting , without fiscal year limitation;
; and
in subparagraph (B), by striking thereunder.
and inserting , the total amount of which shall not exceed $5,000,000 per fiscal year.
;
in paragraph (3)(A), by striking unless the balance of the Fund at the time the monetary judgment is collected exceeds $100,000,000
and inserting , but only to the extent that the resulting balance of the Fund does not exceed $50,000,000
; and
by redesignating paragraph (5) as paragraph (6) and inserting after paragraph (4) the following:
Reversion to Treasury
Notwithstanding the preceding provisions of this subsection, to the extent the balance of the Fund exceeds $50,000,000, the excess amount shall be deposited in the Treasury of the United States as miscellaneous receipts.
.
END-USER RELIEF
Transactions with utility special entities
Section 1a(49) of the Commodity Exchange Act (7 U.S.C. 1a(49)) is amended by adding at the end the following:
Certain transactions with a utility special entity
Transactions in utility operations-related swaps shall be reported pursuant to section 4r.
In making a determination to exempt pursuant to subparagraph (D), the Commission shall treat a utility operations-related swap entered into with a utility special entity, as defined in section 4s(h)(2)(D), as if it were entered into with an entity that is not a special entity, as defined in section 4s(h)(2)(C).
.
Utility special entity defined
Section 4s(h)(2) of the Commodity Exchange Act (7 U.S.C. 6s(h)(2)) is amended by adding at the end the following:
Utility special entity
For purposes of this Act, the term utility special entity
means a special entity, or any instrumentality, department, or corporation of or established by a State or political subdivision of a State, that—
owns or operates, or anticipates owning or operating, an electric or natural gas facility or an electric or natural gas operation;
supplies, or anticipates supplying, natural gas and or electric energy to another utility special entity;
has, or anticipates having, public service obligations under Federal, State, or local law or regulation to deliver electric energy or natural gas service to customers; or
is a Federal power marketing agency, as defined in section 3 of the Federal Power Act.
.
Utility operations-related swap
Swap further defined
Section 1a(47)(A)(iii) of the Commodity Exchange Act (7 U.S.C. 1a(47)(A)(iii)) is amended—
by striking and
at the end of subclause (XXI);
by adding and
at the end of subclause (XXII); and
by adding at the end the following:
a utility operations-related swap;
.
Utility operations-Related swap defined
Section 1a of such Act (7 U.S.C. 1a) is amended by adding at the end the following:
Utility operations-related swap
The term utility operations-related swap
means a swap that—
is entered into by a utility to hedge or mitigate a commercial risk;
is not a contract, agreement, or transaction based on, derived on, or referencing—
an interest rate, credit, equity, or currency asset class;
except as used for fuel for electric energy generation, a metal, agricultural commodity, or crude oil or gasoline commodity of any grade; or
any other commodity or category of commodities identified for this purpose in a rule or order adopted by the Commission in consultation with the appropriate Federal and State regulatory commissions; and
is associated with—
the generation, production, purchase, or sale of natural gas or electric energy, the supply of natural gas or electric energy to a utility, or the delivery of natural gas or electric energy service to utility customers;
fuel supply for the facilities or operations of a utility;
compliance with an electric system reliability obligation;
compliance with an energy, energy efficiency, conservation, or renewable energy or environmental statute, regulation, or government order applicable to a utility; or
any other electric energy or natural gas swap to which a utility is a party.
.
End-users not treated as financial entities
In general
Section 2(h)(7)(C)(iii) of the Commodity Exchange Act (7 U.S.C. 2(h)(7)(C)(iii)) is amended to read as follows:
Limitation
Such definition shall not include an entity—
whose primary business is providing financing, and who uses derivatives for the purpose of hedging underlying commercial risks related to interest rate and foreign currency exposures, 90 percent or more of which arise from financing that facilitates the purchase or lease of products, 90 percent or more of which are manufactured by the parent company or another subsidiary of the parent company; or
who is not supervised by a prudential regulator, and is not described in any of subclauses (I) through (VII) of clause (i), and—
is a commercial market participant; or
enters into swaps, contracts for future delivery, and other derivatives on behalf of, or to hedge or mitigate the commercial risk of, whether directly or in the aggregate, affiliates that are not so supervised or described.
.
Commercial market participant defined
In general
Section 1a of such Act (7 U.S.C. 1a), as amended by section 303(b) of this Act, is amended by redesignating paragraphs (7) through (52) as paragraphs (8) through (53), respectively, and by inserting after paragraph (6) the following:
Commercial market participant
The term commercial market participant
means any producer, processor, merchant, or commercial user of an exempt or agricultural commodity, or the products or byproducts of such a commodity.
.
Conforming amendments
Section 1a of such Act (7 U.S.C. 1a) is amended—
in subparagraph (A) of paragraph (18) (as so redesignated by paragraph (1) of this subsection), in the matter preceding clause (i), by striking (18)(A)
and inserting (19)(A)
; and
in subparagraph (A)(vii) of paragraph (19) (as so redesignated by paragraph (1) of this subsection), in the matter following subclause (III), by striking (17)(A)
and inserting (18)(A)
.
Section 4(c)(1)(A)(i)(I) of such Act (7 U.S.C. 6(c)(1)(A)(i)(I)) is amended by striking (7), paragraph (18)(A)(vii)(III), paragraphs (23), (24), (31), (32), (38), (39), (41), (42), (46), (47), (48), and (49)
and inserting (8), paragraph (19)(A)(vii)(III), paragraphs (24), (25), (32), (33), (39), (40), (42), (43), (47), (48), (49), and (50)
.
Section 4q(a)(1) of such Act (7 U.S.C. 6o–1(a)(1)) is amended by striking 1a(9)
and inserting 1a(10)
.
Section 4s(f)(1)(D) of such Act (7 U.S.C. 6s(f)(1)(D)) is amended by striking 1a(47)(A)(v)
and inserting 1a(48)(A)(v)
.
Section 4s(h)(5)(A)(i) of such Act (7 U.S.C. 6s(h)(5)(A)(i)) is amended by striking 1a(18)
and inserting 1a(19)
.
Section 4t(b)(1)(C) of such Act (7 U.S.C. 6t(b)(1)(C)) is amended by striking 1a(47)(A)(v)
and inserting 1a(48)(A)(v)
.
Section 5(d)(23) of such Act (7 U.S.C. 7(d)(23)) is amended by striking 1a(47)(A)(v)
and inserting 1a(48)(A)(v)
.
Section 5(e)(1) of such Act (7 U.S.C. 7(e)(1)) is amended by striking 1a(9)
and inserting 1a(10)
.
Section 5b(k)(3)(A) of such Act (7 U.S.C. 7a–1(k)(3)(A)) is amended by striking 1a(47)(A)(v)
and inserting 1a(48)(A)(v)
.
Section 5h(f)(10)(A)(iii) of such Act (7 U.S.C. 7b–3(f)(10)(A)(iii)) is amended by striking 1a(47)(A)(v)
and inserting 1a(48)(A)(v)
.
Section 21(f)(4)(C) of such Act (7 U.S.C. 24a(f)(4)(C)) is amended by striking 1a(48)
and inserting 1a(49)
.
Section 3a(68)(A)(i) of the Securities Exchange Act of 1934 (15 U.S.C. 78c(a)(68)(A)(i)) is amended by striking (47)(B)(x)
and inserting (48)(B)(x)
.
Section 3C(g)(3)(A)(v) of the Securities Exchange Act of 1934 (15 U.S.C. 78c-3(g)(3)(A)(v)) is amended by striking 1a(10)
and inserting 1a(11)
.
Section 6(g)(5)(B)(i) of the Securities Exchange Act of 1934 (15 U.S.C. 78f(g)(5)(B)(i)) is amended—
in sublcause (I), by striking 1a(18)(B)(ii)
and inserting 1a(19)(B)(ii)
; and
in subclause (II), by striking 1a(18)
and inserting 1a(19)
.
Section 15F(h)(5)(A)(i) of the Securities Exchange Act of 1934 (15 U.S.C. 78o-10(h)(5)(A)(i)) is amended by striking 1a(18)
and inserting 1a(19)
.
Reporting of illiquid swaps so as to not disadvantage certain non-financial end-users
Section 2(a)(13) of the Commodity Exchange Act (7 U.S.C. 2(a)(13)) is amended—
in subparagraph (C), by striking The Commission
and inserting Except as provided in subparagraph (D), the Commission
; and
by redesignating subparagraphs (D) through (G) as subparagraphs (E) through (H), respectively, and inserting after subparagraph (C) the following:
Requirements for swap transactions in illiquid markets
Notwithstanding subparagraph (C):
The Commission shall provide by rule for the public reporting of swap transactions, including price and volume data, in illiquid markets that are not cleared and entered into by a non-financial entity that is hedging or mitigating commercial risk in accordance with subsection (h)(7)(A).
The Commission shall ensure that the swap transaction information referred to in clause (i) of this subparagraph is available to the public no sooner than 30 days after the swap transaction has been executed or at such later date as the Commission determines appropriate to protect the identity of participants and positions in illiquid markets and to prevent the elimination or reduction of market liquidity.
In this subparagraph, the term illiquid markets
means any market in which the volume and frequency of trading in swaps is at such a level as to allow identification of individual market participants.
.
Relief for grain elevator operators, farmers, agricultural counterparties, and commercial market participants
The Commodity Exchange Act (7 U.S.C. 1 et seq.) is amended by inserting after section 4t the following:
Recordkeeping requirements applicable to non-registered members of certain registered entities
Except as provided in section 4(a)(3), a member of a designated contract market or a swap execution facility that is not registered with the Commission and not required to be registered with the Commission in any capacity shall satisfy the recordkeeping requirements of this Act and any recordkeeping rule, order, or regulation under this Act by maintaining a written record of each transaction in a contract for future delivery, option on a future, swap, swaption, trade option, or related cash or forward transaction. The written record shall be sufficient if it includes the final agreement between the parties and the material economic terms of the transaction.
.
Relief for end-users who use physical contracts with volumetric optionality
Section 1a(48)(B)(ii) of the Commodity Exchange Act (7 U.S.C. 1a(47)(B)(ii)), as so redesignated by section 304(b)(1) of this Act, is amended to read as follows:
any purchase or sale of a nonfinancial commodity or security for deferred shipment or delivery, so long as the transaction is intended to be physically settled, including any stand-alone or embedded option for which exercise results in a physical delivery obligation;
.
Commission vote required before automatic change of swap dealer de minimis level
Section 1a(50)(D) of the Commodity Exchange Act (7 U.S.C. 1a(49)(D)), as so redesignated by section 304(b)(1) of this Act, is amended—
by striking all that precedes shall exempt
and inserting the following:
Exception
In general
The Commission
; and
by adding after and below the end the following new clause:
De minimis quantity
The de minimis quantity of swap dealing described in clause (i) shall be set at a quantity of $8,000,000,000, and may be amended or changed only through a new affirmative action of the Commission undertaken by rule or regulation.
.
Capital requirements for non-bank swap dealers
Commodity exchange act
Section 4s(e) of the Commodity Exchange Act (7 U.S.C. 6s(e)) is amended—
in paragraph (2)(B), by striking shall
and inserting the following: and the Securities and Exchange Commission, in consultation with the prudential regulators, shall jointly
; and
in paragraph (3)(D)—
in clause (ii), by striking shall, to the maximum extent practicable,
and inserting shall
; and
by adding at the end the following:
Financial models
To the extent that swap dealers and major swap participants that are banks are permitted to use financial models approved by the prudential regulators or the Securities and Exchange Commission to calculate minimum capital requirements and minimum initial and variation margin requirements, including the use of non-cash collateral, the Commission shall, in consultation with the prudential regulators and the Securities and Exchange Commission, permit the use of comparable financial models by swap dealers and major swap participants that are not banks.
.
Securities exchange act of 1934
Section 15F(e) of the Securities Exchange Act of 1934 (15 U.S.C. 78o–10(e)) is amended—
in paragraph (2)(B), by striking shall
and inserting the following: and the Commodity Futures Trading Commission, in consultation with the prudential regulators, shall jointly
; and
in paragraph (3)(D)—
in clause (ii), by striking shall, to the maximum extent practicable,
and inserting shall
; and
by adding at the end the following:
Financial models
To the extent that security-based swap dealers and major security-based swap participants that are banks are permitted to use financial models approved by the prudential regulators or the Commodity Futures Trading Commission to calculate minimum capital requirements and minimum initial and variation margin requirements, including the use of non-cash collateral, the Commission shall, in consultation with the Commodity Futures Trading Commission, permit the use of comparable financial models by security-based swap dealers and major security-based swap participants that are not banks.
.
Harmonization with the Jumpstart Our Business Startups Act
Within 90 days after the date of the enactment of this Act, the Commodity Futures Trading Commission shall—
revise section 4.7(b) of title 17, Code of Federal Regulations, in the matter preceding paragraph (1), to read as follows:
Relief available to commodity pool operators. Upon filing the notice required by paragraph (d) of this section, and subject to compliance with the conditions specified in paragraph (d) of this section, any registered commodity pool operator who sells participations in a pool solely to qualified eligible persons in an offering which qualifies for exemption from the registration requirements of the Securities Act pursuant to section 4(2) of that Act or pursuant to Regulation S, 17 CFR 230.901 et seq., and any bank registered as a commodity pool operator in connection with a pool that is a collective trust fund whose securities are exempt from registration under the Securities Act pursuant to section 3(a)(2) of that Act and are sold solely to qualified eligible persons, may claim any or all of the following relief with respect to such pool:
; and
revise section 4.13(a)(3)(i) of such title to read as follows:
Interests in the pool are exempt from registration under the Securities Act of 1933, and such interests are offered and sold pursuant to section 4 of the Securities Act of 1933 and the regulations thereunder;
.
Bona fide hedge defined to protect end-user risk management needs
Section 4a(c) of the Commodity Exchange Act (7 U.S.C. 6a(c)) is amended—
in paragraph (1)—
by striking may
and inserting shall
; and
by striking future for which
and inserting future, to be determined by the Commission, for which either an appropriate swap is available or
;
in paragraph (2)—
in the matter preceding subparagraph (A), by striking subsection (a)(2)
and all that follows through position as
and inserting paragraph (1) for swaps, contracts of sale for future delivery, or options on the contracts or commodities, a bona fide hedging transaction or position is
; and
in subparagraph (A)(ii), by striking of risks
and inserting or management of current or anticipated risks
; and
by adding at the end the following:
The Commission may further define, by rule or regulation, what constitutes a bona fide hedging transaction, provided that the rule or regulation is consistent with the requirements of subparagraphs (A) and (B) of paragraph (2).
.
Cross-border regulation of derivatives transactions
Rulemaking required
Within 1 year after the date of the enactment of this Act, the Commodity Futures Trading Commission shall issue a rule that addresses—
the nature of the connections to the United States that require a non-United States person to register as a swap dealer or a major swap participant under the Commodity Exchange Act and the regulations issued under such Act;
which of the United States swaps requirements apply to the swap activities of non-United States persons and United States persons and their branches, agencies, subsidiaries, and affiliates outside of the United States, and the extent to which the requirements apply; and
the circumstances under which a United States person or non-United States person in compliance with the swaps regulatory requirements of a foreign jurisdiction shall be exempt from United States swaps requirements.
Content of the rule
Criteria
In the rule, the Commission shall establish criteria for determining that one or more categories of the swaps regulatory requirements of a foreign jurisdiction are comparable to and as comprehensive as United States swaps requirements. The criteria shall include—
the scope and objectives of the swaps regulatory requirements of the foreign jurisdiction;
the effectiveness of the supervisory compliance program administered;
the enforcement authority exercised by the foreign jurisdiction; and
such other factors as the Commission, by rule, determines to be necessary or appropriate in the public interest.
Comparability
In the rule, the Commission shall—
provide that any non-United States person or any transaction between two non-United States persons shall be exempt from United States swaps requirements if the person or transaction is in compliance with the swaps regulatory requirements of a foreign jurisdiction which the Commission has determined to be comparable to and as comprehensive as United States swaps requirements; and
set forth the circumstances in which a United States person or a transaction between a United States person and a non-United States person shall be exempt from United States swaps requirements if the person or transaction is in compliance with the swaps regulatory requirements of a foreign jurisdiction which the Commission has determined to be comparable to and as comprehensive as United States swaps requirements.
Outcomes-based comparison
In developing and applying the criteria, the Commission shall emphasize the results and outcomes of, rather than the design and construction of, foreign swaps regulatory requirements.
Risk-based rulemaking
In the rule, the Commission shall not take into account, for the purposes of determining the applicability of United States swaps requirements, the location of personnel that arrange, negotiate, or execute swaps.
No part of any rulemaking under this section shall limit the Commission’s antifraud or antimanipulation authority.
Application of the rule
Assessments of foreign jurisdictions
Beginning on the date on which a final rule is issued under this section, the Commission shall begin to assess the swaps regulatory requirements of foreign jurisdictions, in the order the Commission determines appropriate, in accordance with the criteria established pursuant to subsection (b)(1). Following each assessment, the Commission shall determine, by rule or by order, whether the swaps regulatory requirements of the foreign jurisdiction are comparable to and as comprehensive as United States swaps requirements.
Substituted compliance for unassessed major markets
Beginning 18 months after the date of enactment of this Act—
the swaps regulatory requirements of each of the 8 foreign jurisdictions with the largest swaps markets, as calculated by notional value during the 12-month period ending with such date of enactment, except those with respect to which a determination has been made under paragraph (1), shall be considered to be comparable to and as comprehensive as United States swaps requirements; and
a non-United States person or a transaction between two non-United States persons shall be exempt from United States swaps requirements if the person or transaction is in compliance with the swaps regulatory requirements of any of such unexcepted foreign jurisdictions.
Suspension of substituted compliance
If the Commission determines, by rule or by order, that—
the swaps regulatory requirements of a foreign jurisdiction are not comparable to and as comprehensive as United States swaps requirements, using the categories and criteria established under subsection (b)(1);
the foreign jurisdiction does not exempt from its swaps regulatory requirements United States persons who are in compliance with United States swaps requirements; or
the foreign jurisdiction is not providing equivalent recognition of, or substituted compliance for, registered entities (as defined in section 1a(41) of the Commodity Exchange Act) domiciled in the United States,
Petition for review of foreign jurisdiction practices
A registered entity, commercial market participant (as defined in section 1a(7) of the Commodity Exchange Act), or Commission registrant (within the meaning of such Act) who petitions the Commission to make or change a determination under subsection (c)(1) or (c)(3) of this section shall be entitled to expedited consideration of the petition. A petition shall include any evidence or other supporting materials to justify why the petitioner believes the Commission should make or change the determination. Petitions under this section shall be considered by the Commission any time following the enactment of this Act. Within 180 days after receipt of a petition for a rulemaking under this section, the Commission shall take final action on the petition. Within 90 days after receipt of a petition to issue an order or change an order issued under this section, the Commission shall take final action on the petition.
Report to congress
If the Commission makes a determination described in this section through an order, the Commission shall articulate the basis for the determination in a written report published in the Federal Register and transmitted to the Committee on Agriculture of the House of Representatives and Committee on Agriculture, Nutrition, and Forestry of the Senate within 15 days of the determination. The determination shall not be effective until 15 days after the committees receive the report.
Definitions
As used in this Act and for purposes of the rules issued pursuant to this Act, the following definitions apply:
United States person
The term United States person
—
means—
any natural person resident in the United States;
any partnership, corporation, trust, or other legal person organized or incorporated under the laws of the United States or having its principal place of business in the United States;
any account (whether discretionary or non-discretionary) of a United States person; and
any other person as the Commission may further define to more effectively carry out the purposes of this section; and
does not include the International Monetary Fund, the International Bank for Reconstruction and Development, the Inter-American Development Bank, the Asian Development Bank, the African Development Bank, the United Nations, their agencies or pension plans, or any other similar international organizations or their agencies or pension plans.
United states swaps requirements
The term United States swaps requirements
means the provisions relating to swaps contained in the Commodity Exchange Act (7 U.S.C. 1a et seq.) that were added by title VII of the Dodd-Frank Wall Street Reform and Consumer Protection Act (15 U.S.C. 8301 et seq.) and any rules or regulations prescribed by the Commodity Futures Trading Commission pursuant to such provisions.
Foreign jurisdiction
The term foreign jurisdiction
means any national or supranational political entity with common rules governing swaps transactions.
Swaps regulatory requirements
The term swaps regulatory requirements
means any provisions of law, and any rules or regulations pursuant to the provisions, governing swaps transactions or the counterparties to swaps transactions.
Conforming amendment
Section 4(c)(1)(A) of the Commodity Exchange Act (7 U.S.C. 6(c)(1)(A)) is amended by inserting or except as necessary to effectuate the purposes of the Commodity End-User Relief Act,
after to grant exemptions,
.
Exemption of qualified charitable organizations from designation and regulation as commodity pool operators
Exclusion from definition of commodity pool
Section 1a(11) of the Commodity Exchange Act (7 U.S.C. 1a(10)), as so redesignated by section 304(b)(1) of this Act, is amended by adding at the end the following:
Exclusion
The term commodity pool
shall not include any investment trust, syndicate, or similar form of enterprise excluded from the definition of investment company
pursuant to section 3(c)(10) or 3(c)(14) of the Investment Company Act of 1940.
.
Inapplicability of prohibition on use of instrumentalities of interstate commerce by unregistered commodity trading advisor
Section 4m of such Act (7 U.S.C. 6m) is amended—
in paragraph (1), in the second sentence, by inserting : Provided further, That the provisions of this section shall not apply to any commodity trading advisor that is: (A) a charitable organization, as defined in section 3(c)(10)(D) of the Investment Company Act of 1940, or a trustee, director, officer, employee, or volunteer of such a charitable organization acting within the scope of the employment or duties of the person with the organization, whose trading advice is provided only to, or with respect to, one or more of the following: (i) any such charitable organization; or (ii) an investment trust, syndicate or similar form of enterprise excluded from the definition of
before the period; andinvestment company
pursuant to section 3(c)(10) of the Investment Company Act of 1940; or (B) any plan, company, or account described in section 3(c)(14) of the Investment Company Act of 1940, any person or entity who establishes or maintains such a plan, company, or account, or any trustee, director, officer, employee, or volunteer for any of the foregoing plans, persons, or entities acting within the scope of the employment or duties of the person with the organization, whose trading advice is provided only to, or with respect to, any investment trust, syndicate, or similar form of enterprise excluded from the definition of investment company
pursuant to section 3(c)(14) of the Investment Company Act of 1940
by adding at the end the following:
Disclosure concerning excluded charitable organizations
The operator of or advisor to any investment trust, syndicate, or similar form of enterprise excluded from the definition of commodity pool
by reason of section 1a(11)(C) of this Act pursuant to section 3(c)(10) of the Investment Company Act of 1940 shall provide disclosure in accordance with section 7(e) of the Investment Company Act of 1940.
.
Small bank holding company clearing exemption
Section 2(h)(7)(C) of the Commodity Exchange Act (7 U.S.C. 2(h)(7)(C)) is amended by adding at the end the following:
Holding companies
A determination made by the Commission under clause (ii) shall, with respect to small banks and savings associations, also apply to their respective bank holding company (as defined in section 2 of the Bank Holding Company Act of 1956), or savings and loan holding company (as defined in section 10 of the Home Owners’ Loan Act of 1933)), if the total consolidated assets of the holding company are no greater than the asset threshold set by the Commission in determining small bank and savings association eligibility under clause (ii).
.
Core principle certainty
Section 5h(f) of the Commodity Exchange Act (7 U.S.C. 7b–3(f)) is amended—
in paragraph (1)(B), by inserting except as described in this subsection
after Commission by rule or regulation
;
in paragraph (2), by amending subparagraph (D) to read as follows:
have reasonable discretion in establishing and enforcing its rules related to trade practice surveillance, market surveillance, real-time marketing monitoring, and audit trail given that a swap execution facility may offer a trading system or platform to execute or trade swaps through any means of interstate commerce. A swap execution facility shall be responsible for monitoring trading in swaps only on its own facility.
;
in paragraph (4)(B), by adding at the end the following: A swap execution facility shall be responsible for monitoring trading in swaps only on its own facility.
;
in paragraph (6)(B)—
by striking shall—
and all that follows through compliance with the
and insert shall monitor the trading activity on its facility for compliance with any
; and
by adding at the end the following: A swap execution facility shall be responsible for monitoring positions only on its own facility.
;
in paragraph (8), by striking to liquidate
and all that follows and inserting to suspend or curtail trading in a swap on its own facility.
;
in paragraph (13)(B), by striking 1-year period, as calculated on a rolling basis
and inserting 90-day period, as calculated on a rolling basis, or conduct an orderly wind-down of its operations, whichever is greater
; and
in paragraph (15)—
in subparagraph (A), by adding at the end the following: The individual may also perform other responsibilities for the swap execution facility.
;
in subparagraph (B)—
in clause (i), by inserting , a committee of the board,
after directly to the board
;
by striking clauses (iii) through (v) and inserting the following:
establish and administer policies and procedures that are reasonably designed to resolve any conflicts of interest that may arise;
establish and administer policies and procedures that reasonably ensure compliance with this Act and the rules and regulations issued under this Act, including rules prescribed by the Commission pursuant to this section; and
; and
by redesignating clause (vi) as clause (v);
in subparagraph (C), by striking (B)(vi)
and inserting (B)(v)
; and
in subparagraph (D)—
in clause (i)—
by striking In accordance with rules prescribed by the Commission, the
and inserting The
; and
by striking and sign
; and
in clause (ii)—
in the matter preceding subclause (I), by inserting or senior officer
after officer
;
by amending subclause (I) to read as follows:
submit each report described in clause (i) to the Commission; and
; and
in subclause (II), by inserting materially
before accurate
.
Treatment of Federal Home Loan Bank products
Section 1a(2) of the Commodity Exchange Act (7 U.S.C. 1a(2)) is amended—
in subparagraph (B), by striking and
;
in subparagraph (C), by striking the period and inserting ; and
; and
by adding at the end the following:
is the Federal Housing Finance Agency for any Federal Home Loan Bank (as defined in section 2 of the Federal Home Loan Bank Act).
.
Section 402(a) of the Legal Certainty for Bank Products Act of 2000 (7 U.S.C. 27(a)) is amended—
by striking or
at the end of paragraph (6);
by striking the period at the end of paragraph (7) and inserting ; or
; and
by adding at the end the following:
any Federal Home Loan Bank (as defined in section 2 of the Federal Home Loan Bank Act).
.
Treatment of certain funds
Amendment to the definition of commodity pool operator
Section 1a(12) of the Commodity Exchange Act (7 U.S.C. 1a(11)), as so redesignated by section 304(b)(1) of this Act, is amended by adding at the end the following:
The term commodity pool operator
does not include a person who serves as an investment adviser to an investment company registered pursuant to section 8 of the Investment Company Act of 1940 or a subsidiary of such a company, if the investment company or subsidiary invests, reinvests, owns, holds, or trades in commodity interests limited to only financial commodity interests.
For purposes of this subparagraph only, the term financial commodity interest
means a futures contract, an option on a futures contract, or a swap, involving a commodity that is not an exempt commodity or an agricultural commodity, including any index of financial commodity interests, whether cash settled or involving physical delivery.
For purposes of this subparagraph only, the term commodity
does not include a security issued by a real estate investment trust, business development company, or issuer of asset-backed securities, including any index of such securities.
.
Amendment to the definition of commodity trading advisor
Section 1a(13) of such Act (7 U.S.C. 1a(12)), as so redesignated by section 304(b)(1) of this Act, is amended by adding at the end the following:
The term commodity trading advisor
does not include a person who serves as an investment adviser to an investment company registered pursuant to section 8 of the Investment Company Act of 1940 or a subsidiary of such a company, if the commodity trading advice relates only to a financial commodity interest, as defined in paragraph (12)(C)(ii) of this section. For purposes of this subparagraph only, the term commodity
does not include a security issued by a real estate investment trust, business development company, or issuer of asset-backed securities, including any index of such securities.
.
Procedure for obtaining certain intellectual property
The Commodity Exchange Act (7 U.S.C. 1 et seq.) is amended by inserting after section 4t the following:
Procedure for obtaining certain intellectual property
The Commission is not authorized to compel persons to produce or furnish algorithmic trading source code or similar intellectual property to the Commission, unless the Commission first issues a subpoena.
.
Determination of predominant engagement
Section 2(h)(7)(C) of the Commodity Exchange Act (7 U.S.C. 2(h)(7)(C)), as amended by section 314 of this Act, is amended by adding at the end the following:
In determining whether a person is predominantly engaged in a business or activity for purposes of clause (i)(VIII), there shall be excluded revenues and assets that are, or result from, any transaction that is entered into solely for purposes of hedging or mitigating commercial risk (as defined by the Commission for purposes of subparagraph (A)(ii)).
.
Treatment of transactions between affiliates
Section 1a(48) of the Commodity Exchange Act (7 U.S.C. 1a(47)), as so redesignated by section 304(b)(1) of this Act, is amended by adding at the end the following:
Treatment of transactions between affiliates
Exemption from swap rules
An agreement, contract, or transaction described in subparagraphs (A) through (F) shall not be regulated as a swap under this Act if all of the following apply with respect to the agreement, contract, or transaction:
Affiliation
One counterparty, directly or indirectly, holds a majority ownership interest in the other counterparty, or a third party, directly or indirectly, holds a majority ownership interest in both counterparties.
Financial statements
The affiliated counterparty that holds the majority interest in the other counterparty or the third party that, directly or indirectly, holds the majority interests in both affiliated counterparties, reports its financial statements on a consolidated basis under generally accepted accounting principles or International Financial Reporting Standards, or other similar standards, and the financial statements include the financial results of the majority-owned affiliated counterparty or counterparties.
Reporting requirement
If at least one counterparty to an agreement, contract, or transaction that meets the requirements of clause (i) is a swap dealer or major swap participant, that counterparty shall report the agreement, contract, or transaction pursuant to section 4r, within such time period as the Commission may by rule or regulation prescribe—
to a swap data repository; or
if there is no swap data repository that would accept the agreement, contract or transaction, to the Commission .
Risk management requirement
If at least one counterparty to an agreement, contract, or transaction that meets the requirements of clause (i) is a swap dealer or major swap participant, the agreement, contract, or transaction shall be subject to a centralized risk management program pursuant to section 4s(j) that is reasonably designed to monitor and to manage the risks associated with the agreement, contract, or transaction.
Variation margin requirement
Affiliated counterparties to an agreement, contract, or transaction that meets the requirements of clause (i) shall exchange variation margin to the extent prescribed under any rule promulgated by the Commission or any prudential regulator pursuant to section 4s(e).
Anti-evasion requirement
An agreement, contract, or transaction that meets the requirements of clause (i) shall not be structured to evade the Dodd-Frank Wall Street Reform and Consumer Protection Act in violation of any rule promulgated by the Commission pursuant to section 721(c) of such Act.
.
Requirements related to position limits
In general
Section 4a(a) of the Commodity Exchange Act (7 U.S.C. 6a(a)) is amended—
by striking paragraphs (2), (3), (5), and (6); and
by redesignating paragraphs (4) and (7) as paragraphs (2) and (3), respectively.
Bona fide hedging transaction definition
Section 4a(c)(2)(A)(i) of such Act (7 U.S.C. 6a(c)(2)(A)(i)) is amended by inserting normally
before represents
.
Effective date
The amendments made by this section shall take effect on the date of the enactment of this section.
TECHNICAL CORRECTIONS
Correction of references
Section 2(h)(8)(A)(ii) of the Commodity Exchange Act (7 U.S.C. 2(h)(8)(A)(ii)) is amended by striking 5h(f) of this Act
and inserting 5h(g)
.
Section 5c(c)(5)(C)(i) of such Act (7 U.S.C. 7a–2(c)(5)(C)(i)) is amended by striking 1a(2)(i))
and inserting 1a(19)(i))
.
Section 23(f) of such Act (7 U.S.C. 26(f)) is amended by striking section 7064
and inserting section 706
.
Elimination of obsolete references to dealer options
In general
Section 4c of the Commodity Exchange Act (7 U.S.C. 6c) is amended by striking subsections (d) and (e) and redesignating subsections (f) and (g) as subsections (d) and (e), respectively.
Conforming amendments
Section 2(d) of such Act (7 U.S.C. 2(d)) is amended by striking (g) of
and inserting (e) of
.
Section 4f(a)(4)(A)(i) of such Act (7 U.S.C. 6f(a)(4)(A)(i)) is amended by striking , (d), (e), and (g)
and inserting and (e)
.
Section 4k(5)(A) of such Act (7 U.S.C. 6k(5)(A)) is amended by striking , (d), (e), and (g)
and inserting and (e)
.
Section 5f(b)(1)(A) of such Act (7 U.S.C. 7b–1(b)(1)(A)) is amended by striking , (e), and (g)
and inserting and (e)
.
Section 9(a)(2) of such Act (7 U.S.C. 13(a)(2)) is amended by striking through (e)
and inserting and (c)
.
Updated trade data publication requirement
Section 4g(e) of the Commodity Exchange Act (7 U.S.C. 6g(e)) is amended by striking exchange
and inserting each designated contract market and swap execution facility
.
Flexibility for registered entities
Section 5c(b) of the Commodity Exchange Act (7 U.S.C. 7a–2(b)) is amended by striking contract market, derivatives transaction execution facility, or electronic trading facility
each place it appears and inserting registered entity
.
Elimination of obsolete references to electronic trading facilities
Section 1a(19)(A)(x) of the Commodity Exchange Act (7 U.S.C. 1a(18)(A)(x)), as so redesignated by section 304(b)(1) of this Act, is amended by striking (other than an electronic trading facility with respect to a significant price discovery contract)
.
Section 1a(40) of such Act (7 U.S.C. 1a(41)), as so redesignated by section 304(b)(1) of this Act, is amended—
by adding and
at the end of subparagraph (D); and
by striking all that follows “section 21” and inserting a period.
Section 4a(e) of such Act (7 U.S.C. 6a(e)) is amended—
in the first sentence—
by striking or by any electronic trading facility
;
by striking or on an electronic trading facility
; and
by striking or electronic trading facility
each place it appears; and
in the second sentence, by striking or electronic trading facility with respect to a significant price discovery contract
.
Section 4g(a) of such Act (7 U.S.C. 6g(a)) is amended by striking any significant price discovery contract traded or executed on an electronic trading facility or
.
Section 4i of such Act (7 U.S.C. 6i) is amended—
by striking , or any significant price discovery contract traded or executed on an electronic trading facility or any agreement, contract, or transaction that is treated by a derivatives clearing organization, whether registered or not registered, as fungible with a significant price discovery contract
; and
by striking or electronic trading facility
.
Section 6(b) of such Act (7 U.S.C. 8(b)) is amended by striking or electronic trading facility
each place it appears.
Section 12(e)(2) of such Act (7 U.S.C. 16(e)(2)) is amended by striking in the case of—
and all that follows and inserting in the case of an agreement, contract, or transaction that is excluded from this Act under section 2(c) or 2(f) of this Act or title IV of the Commodity Futures Modernization Act of 2000, or exempted under section 4(c) of this Act (regardless of whether any such agreement, contract, or transaction is otherwise subject to this Act).
.
Elimination of obsolete reference to alternative swap execution facilities
Section 5h(h) of the Commodity Exchange Act (7 U.S.C. 7b–3(h)) is amended by striking alternative
before swap
.
Elimination of redundant references to types of registered entities
Section 6b of the Commodity Exchange Act (7 U.S.C. 13a) is amended in the first sentence by striking as set forth in sections 5 through 5c
.
Clarification of Commission authority over swaps trading
Section 8a of the Commodity Exchange Act (7 U.S.C. 12a) is amended—
in paragraph (7)—
by inserting the protection of swaps traders and to assure fair dealing in swaps, for
after appropriate for
;
in subparagraph (A), by inserting swaps or
after conditions in
; and
in subparagraph (B), by inserting or swaps
after future delivery
; and
in paragraph (9)—
by inserting swap or
after or liquidation of any
; and
by inserting swap or
after margin levels on any
.
Elimination of obsolete reference to the Commodity Exchange Commission
Section 13(c) of the Commodity Exchange Act (7 U.S.C. 13c(c)) is amended by striking or the Commission
.
Elimination of obsolete references to derivative transaction execution facilities
Section 1a(13)(B)(vi) of the Commodity Exchange Act (7 U.S.C. 1a(12)(B)(vi)), as so redesignated by section 304(b)(1) of this Act, is amended by striking derivatives transaction execution facility
and inserting swap execution facility
.
Section 1a(35) of such Act (7 U.S.C. 1a(34)), as so redesignated by section 304(b)(1) of this Act, is amended by striking or derivatives transaction execution facility
each place it appears.
Section 1a(36)(B)(iii)(I) of such Act (7 U.S.C. 1a(35)(B)(iii)(I)), as so redesignated by section 304(b)(1) of this Act, is amended by striking or registered derivatives transaction execution facility
.
Section 2(a)(1)(C)(ii) of such Act (7 U.S.C. 2(a)(1)(C)(ii)) is amended—
by striking , or register a derivatives transaction execution facility that trades or executes,
;
by striking , and no derivatives transaction execution facility shall trade or execute such contracts of sale (or options on such contracts) for future delivery
; and
by striking or the derivatives transaction execution facility,
.
Section 2(a)(1)(C)(v)(I) of such Act (7 U.S.C. 2(a)(1)(C)(v)(I)) is amended by striking , or any derivatives transaction execution facility on which such contract or option is traded,
.
Section 2(a)(1)(C)(v)(II) of such Act (7 U.S.C. 2(a)(1)(C)(v)(II)) is amended by striking or derivatives transaction execution facility
each place it appears.
Section 2(a)(1)(C)(v)(V) of such Act (7 U.S.C. 2(a)(1)(C)(v)(V)) is amended by striking or registered derivatives transaction execution facility
.
Section 2(a)(1)(D)(i) of such Act (7 U.S.C. 2(a)(1)(D)(i)) is amended in the matter preceding subclause (I)—
by striking in, or register a derivatives transaction execution facility
; and
by striking , or registered as a derivatives transaction execution facility for,
.
Section 2(a)(1)(D)(i)(IV) of such Act (7 U.S.C. 2(a)(1)(D)(i)(IV)) is amended by striking registered derivatives transaction execution facility,
each place it appears.
Section 2(a)(1)(D)(ii)(I) of such Act (7 U.S.C. 2(a)(1)(D)(ii)(I)) is amended to read as follows:
the transaction is conducted on or subject to the rules of a board of trade that has been designated by the Commission as a contract market in such security futures product; or
.
Section 2(a)(1)(D)(ii)(II) of such Act (7 U.S.C. 2(a)(1)(D)(ii)(II)) is amended by striking or registered derivatives transaction execution facility
.
Section 2(a)(1)(D)(ii)(III) of such Act (7 U.S.C. 2(a)(1)(D)(ii)(III)) is amended by striking or registered derivatives transaction execution facility member
.
Section 2(a)(9)(B)(ii) of such Act (7 U.S.C. 2(a)(9)(B)(ii)) is amended—
by striking or registration
each place it appears;
by striking or derivatives transaction execution facility
each place it appears;
by striking or register
;
by striking , registering,
; and
by striking registration,
.
Section 2(c)(2) of such Act (7 U.S.C. 2(c)(2)) is amended by striking or a derivatives transaction execution facility
.
Section 4(a)(1) of such Act (7 U.S.C. 6(a)(1)) is amended by striking or derivatives transaction execution facility
each place it appears.
Section 4(c)(1) of such Act (7 U.S.C. 6(c)(1)) is amended—
by striking or registered
after designated
; and
by striking or derivatives transaction execution facility
.
Section 4a(a)(1) of such Act (7 U.S.C. 6a(a)(1)) is amended—
by striking or derivatives transaction execution facilities
; and
by striking or derivatives transaction execution facility
.
Section 4a(e) of such Act (7 U.S.C. 6a(e)) is amended—
by striking , derivatives transaction execution facility,
each place it appears; and
by striking or derivatives transaction execution facility
.
Section 4c(e) of such Act (7 U.S.C. 6c(g)), as so redesignated by section 402(a) of this Act, is amended by striking or derivatives transaction execution facility
each place it appears.
Section 4d of such Act (7 U.S.C. 6d) is amended by striking or derivatives transaction execution facility
each place it appears.
Section 4e of such Act (7 U.S.C. 6e) is amended by striking or derivatives transaction execution facility
.
Section 4f(b) of such Act (7 U.S.C. 6f(b)) is amended by striking or derivatives transaction execution facility
each place it appears.
Section 4i of such Act (7 U.S.C. 6i) is amended by striking or derivatives transaction execution facility
.
Section 4j(a) of such Act (7 U.S.C. 6j(a)) is amended by striking and registered derivatives transaction execution facility
.
Section 4p(a) of such Act (7 U.S.C. 6p(a)) is amended by striking , or derivatives transaction execution facilities
.
Section 4p(b) of such Act (7 U.S.C. 6p(b)) is amended by striking derivatives transaction execution facility,
.
Section 5c(f) of such Act (7 U.S.C. 7a–2(f)) is amended by striking and registered derivatives transaction execution facility
.
Section 5c(f)(1) of such Act (7 U.S.C. 7a–2(f)(1)) is amended by striking or registered derivatives transaction execution facility
.
Section 6 of such Act (7 U.S.C. 8) is amended—
by striking or registered
;
by striking or derivatives transaction execution facility
each place it appears; and
by striking or registration
each place it appears.
Section 6a(a) of such Act (7 U.S.C. 10a(a)) is amended—
by striking or registered
;
by striking or a derivatives transaction execution facility
; and
by inserting shall
before exclude
the first place it appears.
Section 6a(b) of such Act (7 U.S.C. 10a(b)) is amended—
by striking or registered
; and
by striking or a derivatives transaction execution facility
.
Section 6d(1) of such Act (7 U.S.C. 13a–2(1)) is amended by striking derivatives transaction execution facility,
.
Elimination of obsolete references to exempt boards of trade
Section 1a(19)(A)(x) of the Commodity Exchange Act (7 U.S.C. 1a(18)(A)(x)), as so redesignated by section 304(b)(1) of this Act, is amended by striking “or an exempt board of trade”.
Section 12(e)(1)(B)(i) of such Act (7 U.S.C. 16(e)(1)(B)(i)) is amended by striking “or exempt board of trade”.
Elimination of report due in 1986
Section 26 of the Futures Trading Act of 1978 (7 U.S.C. 16a) is amended by striking subsection (b) and redesignating subsection (c) as subsection (b).
Compliance report flexibility
Section 4s(k)(3)(B) of the Commodity Exchange Act (7 U.S.C. 6s(k)(3)(B)) is amended to read as follows:
Requirements
A compliance report under subparagraph (A) shall—
include a certification that, under penalty of law, the compliance report is materially accurate and complete; and
be furnished at such time as the Commission determines by rule, regulation, or order, to be appropriate.
.
Miscellaneous corrections
Section 1a(13)(A)(i)(II) of the Commodity Exchange Act (7 U.S.C. 1a(12)(A)(i)(II)), as so redesignated by section 304(b)(1) of this Act, is amended by adding at the end a semicolon.
Section 2(a)(1)(C)(ii)(III) of such Act (7 U.S.C. 2(a)(1)(C)(ii)(III)) is amended by moving the provision 2 ems to the right.
Section 2(a)(1)(C)(iii) of such Act (7 U.S.C. 2(a)(1)(C)(iii)) is amended by moving the provision 2 ems to the right.
Section 2(a)(1)(C)(iv) of such Act (7 U.S.C. 2(a)(1)(C)(iv)) is amended by striking under or
and inserting under
.
Section 2(a)(1)(C)(v) of such Act (7 U.S.C. 2(a)(1)(C)(v)) is amended by moving the provision 2 ems to the right.
Section 2(a)(1)(C)(v)(VI) of such Act (7 U.S.C. 2(a)(1)(C)(v)(VI)) is amended by striking III
and inserting (III)
.
Section 2(c)(1) of such Act (7 U.S.C. 2(c)(1)) is amended by striking the second comma.
Section 4(c)(3)(H) of such Act (7 U.S.C. 6(c)(3)(H)) is amended by striking state
and inserting State
.
Section 4c(c) of such Act (7 U.S.C. 6c(c)) is amended to read as follows:
The Commission shall issue regulations to continue to permit the trading of options on contract markets under such terms and conditions that the Commission from time to time may prescribe.
.
Section 4d(b) of such Act (7 U.S.C. 6d(b)) is amended by striking paragraph (2) of this section
and inserting subsection (a)(2)
.
Section 4f(c)(3)(A) of such Act (7 U.S.C. 6f(c)(3)(A)) is amended by striking the first comma.
Section 4f(c)(4)(A) of such Act (7 U.S.C. 6f(c)(4)(A)) is amended by striking in developing
and inserting In developing
.
Section 4f(c)(4)(B) of such Act (7 U.S.C. 6f(c)(4)(B)) is amended by striking 1817(a)
and inserting 1817(a))
.
Section 5 of such Act (7 U.S.C. 7) is amended by redesignating subsections (c) through (e) as subsections (b) through (d), respectively.
Section 5b of such Act (7 U.S.C. 7a–1) is amended by redesignating subsection (k) as subsection (j).
Section 5f(b)(1) of such Act (7 U.S.C. 7b–1(b)(1)) is amended by striking section 5f
and inserting this section
.
Section 6(a) of such Act (7 U.S.C. 8(a)) is amended by striking the the
and inserting the
.
Section 8a of such Act (7 U.S.C. 12a) is amended in each of paragraphs (2)(E) and (3)(B) by striking Investors
and inserting Investor
.
Section 9(a)(2) of such Act (7 U.S.C. 13(a)(2)) is amended by striking subsection 4c
and inserting section 4c
.
Section 12(b)(4) of such Act (7 U.S.C. 16(b)(4)) is amended by moving the provision 2 ems to the left.
Section 14(a)(2) of such Act (7 U.S.C. 18(a)(2)) is amended by moving the provision 2 ems to the left.
Section 17(b)(9)(D) of such Act (7 U.S.C. 21(b)(9)(D)) is amended by striking the semicolon and inserting a period.
Section 17(b)(10)(C)(ii) of such Act (7 U.S.C. 21(b)(10)(C)(ii)) is amended by striking and
at the end.
Section 17(b)(11) of such Act (7 U.S.C. 21(b)(11)) is amended by striking the period and inserting a semicolon.
Section 17(b)(12) of such Act (7 U.S.C. 21(b)(12)) is amended—
by striking (A)
; and
by striking the period and inserting ; and
.
Section 17(b)(13) of such Act (7 U.S.C. 21(b)(13)) is amended by striking A
and inserting a
.
Section 17 of such Act (7 U.S.C. 21), as amended by sections 101 through 103 of this Act, is amended by redesignating subsection (q), as added by section 233(5) of Public Law 97–444, and subsections (s) through (w) as subsections (r) through (x), respectively.
Section 22(b)(3) of such Act (7 U.S.C. 25(b)(3)) is amended by striking of registered
and inserting of a registered
.
Section 22(b)(4) of such Act (7 U.S.C. 25(b)(4)) is amended by inserting a comma after entity
.
Delay in full implementation of the final rule on ownership and control reporting
The Commodity Futures Trading Commission may not enforce non-compliance with the final rule titled Ownership and Control Reports, Forms 102/2S, 40/40S, and 71
(78 FR 69178; November 18, 2013) until the Commission votes to approve a final rule that has been amended to—
provide that the reportable trading volume level shall be at least 300 contracts;
provide that the reporting entity shall not be required to provide natural person controller data; and
provide that the reporting entity is not obligated to supply data that violates foreign privacy laws.
Passed the House of Representatives January 12, 2017.
Karen L. Haas,
Clerk