Federal Register, Volume 76 Issue 117 (Friday, June 17, 2011)[Federal Register Volume 76, Number 117 (Friday, June 17, 2011)]

[Proposed Rules]

[Pages 35372-35378]

From the Federal Register Online via the Government Printing Office [www.gpo.gov]

[FR Doc No: 2011-15195]

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COMMODITY FUTURES TRADING COMMISSION

17 CFR Chapter 1

Effective Date for Swap Regulation

AGENCY: Commodity Futures Trading Commission.

ACTION: Notice of proposed order and request for comment.

———————————————————————–

SUMMARY: Pursuant to section 754 of the Dodd-Frank Wall Street Reform

and Consumer Protection Act (“Dodd-Frank Act”), the general effective

date for certain provisions of subtitle A of title VII of the Dodd-

Frank Act (“Title VII”) that do not require a rulemaking is 360 days

after enactment, or July 16, 2011, unless another effective date is

specifically provided. Following the general effective date, market

participants may be subject to certain Commodity Exchange Act (“CEA”

or “Act”) requirements but not others. To provide greater clarity

regarding the applicability of various statutory and regulatory

requirements, the Commodity Futures Trading Commission (“CFTC” or the

“Commission”) is proposing to grant, pursuant to its section 4(c)

exemptive authority, temporary relief in two parts with respect to

various requirements of the CEA that apply or may apply to certain

agreements, contracts, and transactions. In part one, the Commission is

proposing to temporarily exempt persons or entities with respect to

provisions of the CEA added or amended by the Dodd-Frank Act that

reference one or more terms regarding entities or instruments that

Title VII requires be “further defined,” such as the terms “swap,”

“swap dealer,” “major swap participant,” or “eligible contract

participant,” to the extent that requirements or portions of such

provisions specifically relate to such referenced terms. In part two,

the Commission is proposing to grant relief from certain provisions of

the CEA that will or may apply to certain agreements, contracts, and

transactions in exempt or excluded commodities as a result of the

repeal of various CEA exemptions and exclusions as of July 16, 2011.

DATES: Comments must be received on or before July 1, 2011.

ADDRESSES: Comments may be submitted, referenced as “Effective

Dates,” by any of the following methods:

Agency Web site, via its Comments Online process: http://comments.cftc.gov. Follow the instructions for submitting comments

through the Web site.

Federal eRulemaking Portal: http://www.regulations.gov.

Follow the instructions for submitting comments.

Mail: Send to David A. Stawick, Secretary, Commodity

Futures Trading Commission, Three Lafayette Centre, 1155 21st Street,

NW., Washington, DC 20581.

Courier: Same as mail above.

Please submit your comments using only one method. “Effective

Dates” must be in the subject field of responses submitted via e-mail,

and clearly indicated on written submissions. All comments must be

submitted in English, or if not, accompanied by an English translation.

Comments will be posted as received to http://www.cftc.gov. You should

submit only information that you wish to make available publicly. If

you wish the CFTC to consider information that you believe is exempt

from disclosure under the Freedom of Information Act, a petition for

confidential treatment of the exempt information may be submitted

according to the procedures established in section 145.9 of the CFTC’s

regulations.1

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1 17 CFR 145.9.

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The CFTC reserves the right, but shall have no obligation, to

review, pre-screen, filter, redact, refuse or remove any or all of your

submission from http://www.cftc.gov that it may deem to be

inappropriate for publication, including obscene language. All

submissions that have been redacted or removed that contain comments on

the merits of this action will be retained in the public comment file

and will be considered as required under the Administrative Procedure

Act and other applicable laws, and may be accessible under the Freedom

of Information Act.

FOR FURTHER INFORMATION CONTACT: Terry Arbit, Deputy General Counsel,

202-418-5120, [email protected], or Harold Hardman, Deputy General

Counsel, 202-418-5120, [email protected], Office of the General

Counsel, or Steven Kane, Consultant, 202-418-5911, [email protected],

Office of the Chief Economist, Commodity Futures Trading Commission,

Three Lafayette Centre, 1151 21st Street, NW., Washington, DC 20581.

SUPPLEMENTARY INFORMATION:

I. Introduction

On July 21, 2010, President Obama signed the Dodd-Frank Act.2

Title VII of the Dodd-Frank Act amends the CEA 3 to establish a

comprehensive new regulatory framework for swaps. The legislation was

enacted to reduce risk, increase transparency, and promote market

integrity within the financial system by, among other things: (1)

Providing for the registration and comprehensive regulation of swap

dealers and major swap participants; (2) imposing clearing and trade

execution

[[Page 35373]]

requirements on standardized derivative products; (3) creating robust

recordkeeping and real-time reporting regimes; and (4) enhancing the

rulemaking and enforcement authorities of the Commission with respect

to, among others, all registered entities and intermediaries subject to

the Commission’s oversight. Title VII also includes amendments to the

Federal securities laws to establish a similar regulatory framework for

security-based swaps under the authority of the Securities and Exchange

Commission (“SEC”).

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2 See Dodd-Frank Wall Street Reform and Consumer Protection

Act, Public Law 111-203, 124 Stat. 1376 (2010).

3 7 U.S.C. 1 et seq.

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Section 754 of the Dodd-Frank Act provides that, unless otherwise

provided, the provisions of subtitle A of Title VII 4 “shall take

effect on the later of 360 days after the date of the enactment of this

subtitle or, to the extent a provision of this subtitle requires a

rulemaking, not less than 60 days after publication of the final rule

or regulation implementing such provisions of this subtitle.” The date

360 days after the date of enactment is July 16, 2011.

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4 Subtitle A of Title VII contains two parts. Part I, entitled

“Regulatory Authority,” consists of sections 711-720; part II,

entitled “Regulation of Swap Markets,” consists of sections 721-

754. Subtitle B of Title VII is entitled “Regulation of Security-

Based Swap Markets,” and consists of sections 761-774. References

to “Title VII” in this Release shall include only subtitle A of

Title VII.

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To implement the Dodd-Frank Act, the Commission has to-date issued

53 advance notices of proposed rulemaking or notices of proposed

rulemaking, two interim final rules, one final rule, and one proposed

interpretive order. The regulatory requirements that have been proposed

by the Commission present a substantially complete mosaic of the

Commission’s proposed regulatory framework under Title VII. In light of

this substantially complete mosaic, the Commission reopened or extended

the comment period of many of its proposed rulemakings in order to

provide the public with an additional opportunity to comment on the

proposed new regulatory framework for swaps, either in part or as a

whole.5 The extended comment period closed on June 3, 2011. The

Commission also has solicited public comments on phasing of rule

implementation (i.e., identifying which requirements can be met sooner

and which ones will take more time).6

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5 See Reopening and Extension of Comment Periods for

Rulemakings Implementing the Dodd-Frank Wall Street Reform and

Consumer Protection Act, 76 FR 25274, May 4, 2011.

6 The Commission has noted its ability to phase in

implementation of the new requirements based on factors such as: The

type of swap, including by asset class; the type of market

participants that engage in such trades; the speed with which market

infrastructures can meet the new requirements; and whether

registered market infrastructures or participants might be required

to have policies and procedures in place ahead of compliance with

such policies and procedures by non-registrants. http://www.cftc.gov/idc/groups/public/@newsroom/documents/file/staffconcepts050211.pdf.

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II. Background and Discussion

Section 712(d)(1) of the Dodd-Frank Act requires the Commission and

the SEC to further define certain terms used in Title VII, including

the terms “swap,” “swap dealer,” “major swap participant,” and

“eligible contract participant.” 7 Section 721(c) requires the

Commission to adopt a rule to further define the terms “swap,” “swap

dealer,” “major swap participant,” and “eligible contract

participant” to prevent evasion of statutory and regulatory

obligations.8 The Commission has issued two notices of proposed

rulemaking that address these definitions.9

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7 Section 712(d) provides: “Notwithstanding any other

provision of this title and subsections (b) and (c), the Commodity

Futures Trading Commission and the Securities and Exchange

Commission, in consultation with the Board of Governors [of the

Federal Reserve System], shall further define the terms `swap’,

`security-based swap’, `swap dealer’, `security-based swap dealer’,

`major swap participant’, `major security-based swap participant’,

and `security-based swap agreement’ in section 1a(47)(A)(v) of the

Commodity Exchange Act (7 U.S.C. 1a(47)(A)(v)) and section 3(a)(78)

of the Securities Exchange Act of 1934 (15 U.S.C. 78c(a)(78)).”

8 Section 721(c) provides: “To include transactions and

entities that have been structured to evade this subtitle (or an

amendment made by this subtitle), the Commodity Futures Trading

Commission shall adopt a rule to further define the terms `swap’,

`swap dealer’, `major swap participant’, and `eligible contract

participant’.”

9 See Further Definition of “Swap Dealer,” “Security-Based

Swap Dealer,” “Major Swap Participant,” “Major Security-Based

Swap Participant” and “Eligible Contract Participant,” 75 FR

80174, Dec. 21, 2010 (“Entity Definitions”) and Further Definition

of “Swap,” “Security-Based Swap,” and “Security-Based Swap

Agreement” Mixed Swaps; Security-Based Swap Agreement

Recordkeeping, 76 FR 29818, May 23, 2011.

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The Commission’s final rulemakings further defining the terms in

sections 712(d) and 721(c) will not be in place as of July 16, 2011.

Consequently, concerns have been raised about effects upon the swaps

market during the period between July 16, 2011 and prior to the date(s)

that those rulemakings have been completed. The Commission is proposing

this relief to address these concerns and provide clarity to market

participants upon the general effective date of the Dodd-Frank Act. The

Commission reiterates its intent to “strive to ensure that current

practices will not be unduly disrupted during the transition to the new

regulatory regime.” 10

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10 See Notice Regarding the Treatment of Petitions Seeking

Grandfather Relief for Trading Activity Done in Reliance Upon

Section 2(h)(1)-(2) of the Commodity Exchange Act, 75 FR 56512,

56513, Sept. 16, 2010 (“Grandfather Notice”).

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Section 712(f) of the Dodd-Frank Act authorizes the Commission to

“promulgate rules, regulations, or orders permitted by this [Dodd-

Frank] Act,” conduct studies and prepare reports, register persons,

and “exempt persons, agreements, contracts, or transactions from the

provisions of the Act, under the terms contained in this Act,” in

order to prepare for the effective dates of the provisions of Title

VII. Section 4(c) of the CEA, as amended by the Dodd-Frank Act,

provides the Commission with authority to exempt certain agreements,

contracts, and transactions that may otherwise be subject to the CEA

from various provisions of the CEA.11

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11 7 U.S.C. 6(c).

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The provisions of Title VII can be grouped into 4 major categories:

(1) Provisions that require a rulemaking (for which relief is not being

proposed); (2) self-effectuating provisions that reference terms that

require further definition; (3) self-effectuating provisions that do

not reference terms that require further definition and that repeal

provisions of current law; and (4) self-effectuating provisions for

which relief is not being proposed.

Section 754 specifies that unless otherwise provided in Title VII,

provisions requiring a rulemaking become effective “not less than 60

days after publication of the final rule” (but not before July 16,

2011). Category 1 provisions, therefore, are not self-effectuating. A

significant number of the Title VII provisions fall into this category.

Examples of such provisions in Category 1 include new CEA section 4s(a)

(governing registration of swap dealers and major swap participants),

new CEA section 4s(e) (governing capital and margin requirements for

swap dealers and major swap participants), and new CEA section 4s(h)

(external business conduct standards for swap dealers and major swap

participants).12 The requirements in these provisions of the CEA will

not become effective, at a minimum, until 60 days after publication of

a final Commission rule (and not before July 16, 2011).

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12 7 U.S.C. 6s(a), 6s(e) and 6s(h), respectively.

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Because these provisions are not self-effectuating as of July 16,

2011, it is not necessary to provide relief with respect to Category 1

provisions as of July 16, and they are outside the scope of the

proposed order. Similarly, Category 4 provisions also are outside the

scope of the proposed order, and will go into

[[Page 35374]]

effect on July 16, 2011.13 Lists of Category 1 and Category 4

provisions prepared by Commission staff will be published on the

Commission’s Web site.

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13 Examples of Category 4 provisions include new CEA section

5b(c)(2), 7 U.S.C. 7a-1(c)(2) (core principles for derivatives

clearing organizations (“DCOs”)); new CEA section 5(d), 7 U.S.C.

7(d) (core principles for designated contract markets); and new CEA

sections 4c(a)(5)-(6), 7 U.S.C. 6c(a)(5)-(6) (certain anti-

disruptive practices authority). To the extent that the Commission

has issued proposed rulemakings to implement any Category 4

provisions, any requirements or guidance in such rulemakings will

not become effective until the effective date of a final rulemaking.

In two cases, a Category 4 provision that amends the CEA

references a term that requires further definition, but

nevertheless, the Commission does not believe that it is appropriate

to include the provision in the proposed order. These provisions are

new CEA section 5b(g), 7 U.S.C. 7a-1(g) (depository institutions and

SEC-registered clearing agencies clearing swaps prior to enactment

are “deemed to be registered” as DCOs); and amended CEA section

22(a), 7 U.S.C. 25(a) (private right of action with respect to

swaps).

There also are provisions in Category 4 that reference a term

that requires further definition, but that do not amend the CEA and

thus are outside the scope of the Commission’s exemptive authority

under CEA Section 4(c). Such provisions in Title VII include, for

example: (1) Section 711 and much of section 712 (provisions

regarding certain definitions and regulatory authority of CFTC and

SEC); and (2) sections 724(b) and 725(g) (amending the Bankruptcy

Code and the Legal Certainty for Bank Products Act of 2000,

respectively).

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The proposed relief discussed herein is considered in two parts,

each addressing one of the remaining Categories noted above: (1)

Category 2–provisions that are self-effectuating (i.e., do not require

rulemaking) and reference terms that require further definition (i.e.,

“swap,” “swap dealer,” “major swap participant,” or “eligible

contract participant”); and (2) Category 3–provisions that are self-

effectuating (i.e., do not require rulemaking) and repeal provisions of

current law, but that do not reference terms that require further

definition. These parts are discussed, in turn, in the sections that

follow.

A. Part One: Category 2–Self-Effectuating Provisions Referencing Terms

That Require Further Definition

Some provisions of Title VII that do not require a rulemaking and

thus, under section 754, become effective on July 16, 2011,

specifically reference the terms “swap,” “swap dealer,” “major

swap participant,” or “eligible contract participant” (or other

entities or instruments) which themselves are the subject of

rulemakings for further definition under sections 712(d) and 721(c) of

the Dodd-Frank Act. As discussed above, the final rulemakings on these

further definitions will not be in place by July 16, 2011.

In response to requests from market participants for greater

clarity regarding the applicability of various regulatory requirements

to certain agreements, contracts, and transactions (referred to

hereafter collectively as “transactions”) following the general

effective date,14 the Commission is proposing this temporary

exemptive order pursuant to section 4(c) of the CEA. Specifically, for

the Category 2 provisions described above, the Commission proposes to

exempt persons and entities from the provisions of the CEA, as added or

amended by the Dodd-Frank Act, that reference one or more of the terms

regarding entities or instruments subject to further definition under

sections 712(d) and 721(c) of the Dodd-Frank Act, including the terms

“swap,” “swap dealer,” “major swap participant,” or “eligible

contract participant.” 15 The proposed exemptive relief from such

provisions would apply only with respect to those requirements or

portions of such provisions that specifically relate to such referenced

terms.

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14 See, e.g., Futures Industry Association, Petition for

Exemption Pursuant to Section 4(c) of the Commodity Exchange Act

(June 1, 2011) (requesting that the Commission “adopt an order

pursuant to section 4(c) of the [CEA] exempting such Clearing

Members from the requirements of section 4d(f) of the CEA, as added

by section 724 of [the Dodd-Frank Act], for a period of not less

than 30 calendar days, beginning July 16, 2011, the effective date

of many provisions of the Dodd-Frank Act, and ending not before

August 15, 2011”) (footnote omitted). New CEA section 4d(f), 7

U.S.C. 7d(f), falls within Category 2 discussed above.

See also (1) Futures Industry Association, Institute of

International Bankers, International Swaps and Derivatives

Association, Investment Company Institute, Securities Industry and

Financial Markets Association, and U.S. Chamber of Commerce, Request

for Clarification and Relief Under Sections 754 and 739 of the Dodd-

Frank Wall Street Reform and Consumer Protection Act; Petition for

Exemption Pursuant to Section 4(c) of the Commodity Exchange Act,

(June 10, 2011); (2) The Financial Services Roundtable, Letter re.

Automatically Effective Provisions under Title VII of the Dodd-Frank

Act, Application for Exemption Pursuant to Section 4(c) of the

Commodity Exchange Act and Section 712(f) Pending Effectiveness of

Final Rulemaking (June 10, 2011); (3) National Grain and Feed

Association, Letter re. Status of Options on Agricultural

Commodities Entered Into After July 16, 2011 (June 7, 2011); and (4)

Paul Pantano on behalf of Commodity Options and Agricultural Swaps

Working Group, Letter re. Transition Exemption for Options on

Agricultural Commodities Entered Into After July 15, 2011 (June 6,

2011).

15 The Commission’s authority to provide exemptive relief

under CEA section 4(c), as amended by section 721(d) of the Dodd-

Frank Act, may not extend to certain Category 2 provisions of the

Dodd-Frank Act and the CEA. These provisions include: new CEA

section 4s(l), 7 U.S.C. 6s(l) (providing for swap dealer segregation

requirements with respect to uncleared swaps); amended CEA section

5b(a), 7 U.S.C. 7a-1(a) (prohibiting a DCO from performing the

functions of a DCO with respect to swaps unless the DCO is

registered with the Commission); and new CEA section 4s(k), 7 U.S.C.

6s(k) (providing for the duties and designation of a chief

compliance officer for swap dealers and major swap participants). As

such, these provisions will take effect on July 16, 2011, and may

not be subject to the exemptive relief noted above granted by the

Commission. The Commission staff has informed the Commission that it

is separately considering whether to issue a no-action letter in

which the staff would state that it would not recommend that the

Commission commence an enforcement action against markets or market

participants for failure to comply with the above-referenced

provisions over a similar time period.

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This proposed relief would not in any way limit the Commission’s

authority with respect to any person, entity, or transaction pursuant

to CEA sections 2(a)(1)(B), 4b, 4o, 6(c), 6(d), 6c, 8(a), 9(a)(2), or

13, or the regulations of the Commission promulgated pursuant to such

authorities, including CEA section 4c(b) proscribing fraud.16 This

relief would not apply to any provisions of Title VII and the CEA that

have become effective prior to July 16, 2011 17 or Commission

regulations already issued. Further, this relief would not affect any

effective date set out in any specific Dodd-Frank Act rulemaking by the

Commission. In addition, the proposed order would not limit the

Commission’s authority under section 712(f) of the Dodd-Frank Act to

issue rules, orders, or exemptions prior to the effective date of any

provision, in order to prepare for the effective date of such

provision, provided that such rule, order, or exemption shall not

become effective prior to the effective date of the provision. Finally,

this proposed order would not affect the applicability of any provision

of the CEA to futures contracts or options on futures contracts.18

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16 The Dodd-Frank Act amended the CEA’s anti-fraud and anti-

manipulation provisions, including CEA section 4b, to cover

“swaps.” Although these provisions therefore would, under the

proposed relief, not apply to “swaps” under the Dodd-Frank Act

because that term is subject to further definition, nevertheless,

they will apply to all transactions other than “swaps” (including,

but not limited to, futures contracts, options on futures contracts,

transactions with retail customers in foreign currency or other

commodities pursuant to CEA section 2(c)(2) (7 U.S.C. 2(c)(2)), and

transactions subject to exemptive relief pursuant to part two of the

proposed order).

17 See, e.g., section 737(d) of the Dodd-Frank Act (amendments

regarding position limits effective on the date of enactment).

Similarly, this relief would not affect the effective date of any

provision that may become effective after July 16, 2011, such as

section 716 of the Dodd-Frank Act.

18 Accordingly and by way of non-exclusive example, where a

provision references both swaps and futures, this relief does not

affect in any way the application of the provision (and any

implementing Commission regulations thereunder) insofar as it refers

to futures.

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The proposed temporary exemptive relief would expire upon the

earlier of: (1) The effective date of the applicable final rule further

defining the relevant term; or (2) December 31, 2011. The

[[Page 35375]]

Commission is proposing to limit this proposed relief to no more than a

fixed period–i.e. December 31, 2011–for several reasons.

First, the Commission believes it appropriate and prudent to

periodically review the extent and scope of any relief provided from

the CEA, as amended by the Dodd-Frank Act. The Commission anticipates

that additional rulemakings to implement the Dodd-Frank Act will be

completed during this period of transitional relief. During this period

the Commission also will be considering the appropriate phase-in of the

various regulatory requirements under the Dodd-Frank rulemakings.

Accordingly, the Commission believes it would be appropriate to

periodically re-examine the scope and extent of the proposed exemptive

relief in order to ensure that the scope of relief is appropriately

tailored to the schedule of implementation of the Dodd-Frank Act

requirements.19

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19 The Commission adopted a similar approach in not granting

“grandfather” relief with respect to transactions being conducted

under CEA sections 2(h)(1) and (2), 7 U.S.C, 2(h)(1) and (2):

“Until the contents and timing of the Commission’s regulations

affecting bilateral swaps are better known, however, the Commission

has determined not to grant grandfather relief as it is impossible

to know at this time whether such relief will be necessary.” See

Grandfather Notice, 75 FR at 56513.

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Second, the limitation of this exemptive relief to no more than a

fixed period of time is consistent with similar limitations on

transitional relief provided by the Congress elsewhere in Title VII.

Section 723(c) of the Dodd-Frank Act allows persons to submit petitions

to the Commission “to remain subject to section 2(h) of the [CEA].”

20 In acting upon such petitions, the Commission may allow persons to

“continue operating subject to section 2(h) [of the CEA] for not

longer than a 1-year period.” Similarly, section 734 authorizes the

Commission to grant petitions for persons to remain subject to the

provisions of section 5d of the CEA governing the operation of exempt

boards of trade (“EBOTs”) “for up to 1 year after the effective date

of this subtitle.” 21 In light of these provisions authorizing the

Commission to provide transitional relief for no longer than a fixed

period of time, the Commission believes it would be appropriate to

provide transitional relief consistent with section 712(f) of the Dodd-

Frank Act and CEA section 4(c) under this proposed order for no longer

than a fixed time period.

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20 7 U.S.C. 2(h).

21 7 U.S.C. 7a-3.

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The Commission nonetheless reiterates its intent that existing

practices should not be unduly disrupted during any transition period.

Moreover, the Commission reiterates its intent to deliberatively and

efficiently proceed to complete the rulemakings to implement the Dodd-

Frank Act. In the event that a further definitions rulemaking is

completed prior to December 31, 2011, the Commission will at that time

address the appropriate phase-in and implementation dates of the

resulting regulatory requirements. Alternatively, should the proposed

order expire at the end of the fixed time period–December 31, 2011–

such expiration will not affect the Commission’s ability to provide

further relief, as appropriate, to avoid undue disruption or costs to

market participants.

B. Part Two: Category 3–Provisions That are Self-Effectuating and

Repeal Provisions of Current Law But That Do Not Reference Terms That

Require Further Definition

Currently, the CEA includes provisions that exclude or exempt, in

whole or in part, certain transactions from Commission oversight under

the CEA. These are as follows:

i. Section 2(d)(1),22 transactions in excluded commodities 23

between eligible contract participants and not executed or traded on a

trading facility;

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22 7 U.S.C. 2(d)(1).

23 The term “excluded commodity” is defined in CEA section

1a(13), 7 U.S.C. 1a(13), to include, among other things, financial

instruments such as a currency, interest rate, or exchange rate, or

any economic or commercial index based on prices, rates, values, or

levels that are not within the control of any party to the

transaction.

—————————————————————————

ii. Section 2(d)(2),24 principal-to-principal transactions in

excluded commodities between certain eligible contract participants and

executed or traded on an electronic trading facility;

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24 7 U.S.C. 2(d)(2).

—————————————————————————

iii. Section 2(g),25 transactions subject to individual

negotiation between eligible contract participants in commodities other

than agricultural commodities and not executed or traded on a trading

facility;

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25 7 U.S.C. 2(g).

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iv. Sections 2(h)(1)-(2),26 transactions in exempt commodities

27 between eligible contract participants and not entered into on a

trading facility;

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26 7 U.S.C. 2(h)(1)-(2).

27 The term “exempt commodity” is defined in CEA section

1a(14), 7 U.S.C. 1a(14), as a commodity other than an excluded or

agricultural commodity, and includes energy and metals commodities.

—————————————————————————

v. Sections 2(h)(3)-(7),28 principal-to-principal transactions in

exempt commodities between eligible commercial entities (“ECEs”) 29

and executed or traded on an electronic trading facility (called exempt

commercial markets, or “ECMs”);

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28 7 U.S.C. 2(h)(3)-(7).

29 The term “eligible commercial entity” is defined in CEA

section 1a (11), 7 U.S.C. 1a(11).

—————————————————————————

vi. Section 5d,30 transactions in commodities, among other

things, having a nearly inexhaustible deliverable supply or no cash

market, between eligible contract participants and traded on an EBOT;

and

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30 7 U.S.C. 7a-3.

—————————————————————————

vii. Section 2(e),31 which generally provides that nothing in the

CEA governs or is applicable to an electronic trading facility that

limits transactions authorized to be conducted on its facilities to

those satisfying the requirements of sections 2(d)(2), 2(g) or 2(h)(3).

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31 7 U.S.C. 2(e).

—————————————————————————

Under the Dodd-Frank Act, these provisions all will be removed from

the CEA as of July 16, 2011. However, part 35 of the Commission’s

regulations will continue to be available with respect to transactions

that meet the conditions therein, until such time as it may be

withdrawn, amended, or replaced by the Commission.

Part 35 originally was promulgated in 1993 pursuant to the

Commission’s general exemptive authority in CEA section 4(c), and

provides a broad-based exemption from the CEA for “swap agreements”

in any commodity. Specifically, part 35 exempts “swap agreements,” as

defined therein, from most of the provisions of the CEA if: (1) They

are entered into by “eligible swap participants” (“ESPs”); 32 (2)

they are not part of a fungible class of agreements standardized as to

their material economic terms; 33 (3) the creditworthiness of any

party having an actual or potential obligation under the swap agreement

would be a material consideration in entering into or determining the

terms of the swap agreement, including pricing, cost, or credit

enhancement terms; 34 and (4)

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they are not entered into or traded on a multilateral transaction

execution facility.35 Accordingly, transactions that fully meet the

conditions of part 35 are outside the scope of the proposed order.36

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32 The parties covered under the ESP definition, while very

broad, are not coextensive with those covered by the terms “ECE”

or “eligible contract participant.” Therefore, it is possible that

a small segment of persons or entities that are currently relying on

one or more of the CEA exclusions or exemptions cited above might

not qualify as an ESP and consequently would not be eligible for

exemptive relief under part 35.

33 This condition was designed so that the exemption would not

establish “a market in swap agreements, the terms of which are

fixed and are not subject to negotiation that functions essentially

in the same manner as an exchange but for the bilateral execution of

transactions.” See Exemption for Certain Swap Agreements, 58 FR

5587, at 5590, Jan. 22, 1993.

34 By this condition, the exemption does not extend to

transactions that are subject to a clearing system where the credit

risk of individual members of the system to each other in a

transaction to which each is a counterparty is effectively

eliminated and replaced by a system of mutualized risk of loss that

binds members generally whether or not they are counterparties to

the original transaction. Id. at 5591.

35 In this context, a multilateral transaction execution

facility is a physical or electronic facility in which all market

makers and other participants that are members simultaneously have

the ability to execute transactions and bind both parties by

accepting offers which are made by one member and open to all

members of the facility. Id.

36 Similarly, part 32 of the Commission’s regulations will

continue to be available with respect to commodity option

transactions that meet the conditions therein, until such time as

part 32 may be withdrawn, amended, or replaced by the Commission.

See Commodity Options and Agricultural Swaps, 76 FR 6095, Feb 3,

2011.

—————————————————————————

However, because part 35 covers essentially non-standardized, non-

cleared, non-exchange traded transactions, certain persons or entities

that currently rely on the CEA exclusions or exemptions cited above may

not qualify for part 35. In response to requests from market

participants for greater clarity regarding the applicability of various

statutory and regulatory requirements to certain transactions following

the general effective date, the Commission, pursuant to its authority

under section 4(c) of the CEA, is proposing to grant relief for those

transactions that satisfy the conditions specified below.

Specifically, the Commission is proposing to temporarily exempt a

transaction in exempt or excluded commodities (and any person or entity

offering or entering into such transaction) from the CEA (other than

the anti-fraud and anti-manipulation enforcement provisions identified

below) following the general effective date if the transaction

otherwise would comply with part 35, notwithstanding that: (1) The

transaction may be executed on a multilateral transaction execution

facility; (2) the transaction may be cleared; (3) persons offering or

entering into the transaction may be eligible contract participants as

defined in the CEA (prior to July 16, 2011); (4) the transaction may be

part of a fungible class of agreements that are standardized as to

their material economic terms; and/or (5) no more than one of the

parties to the transaction is entering into the transaction in

conjunction with its line of business, but is neither an eligible

contract participant nor an ESP, and the transaction was not and is not

marketed to the public (the “line of business provision”).37

—————————————————————————

37 Commenters responding to the Commission’s proposed Entity

Definitions have suggested that the Commission should exercise its

authority to further define the term “eligible contract

participant” to encompass the “line of business” provision that

was a part of the Commission’s Policy Statement Concerning Swap

Transactions, 54 FR 30694, 30696-30697, July 21, 1989. The staff is

evaluating these comments in the context of the Commission’s

rulemaking to further define the term “eligible contract

participant.”

—————————————————————————

As noted above, this proposed temporary exemptive relief would not

affect the availability of either part 35 or part 32 with respect to

transactions that fully meet the conditions therein.38 For

transactions that fall outside of existing part 35 or part 32, this

relief would only be available to the extent those transactions (and

persons offering or entering into such transactions) fall within the

scope of any of the existing CEA sections 2(d), 2(e), 2(g), 2(h), and

5d as in effect prior to July 16, 2011 39 or the line of business

provision.

—————————————————————————

38 In September 2010, the Commission published an order in the

Federal Register providing that it would extend grandfather relief

to ECMs and EBOTs provided that certain conditions are met. See

Order Regarding the Treatment of Petitions Seeking Grandfather

Relief for Exempt Commercial Markets and Exempt Boards of Trade, 75

FR 56513, Sept. 16, 2010. Nothing in this proposed order is intended

to impact the availability of this grandfather relief.

39 This exemptive relief would not be available to an

electronic trading facility that, as of July 15, 2011, is not

already operating as an ECM pursuant to CEA sections 2h(3)-(7), or

to an EBOT that, as of July 15, 2011, is not already operating

pursuant to CEA section 5d, or not compliant with the conditions set

forth in such provisions.

—————————————————————————

With respect to any transaction within the scope of the proposed

order, the proposed exemptive relief would not in any way limit the

Commission’s authority with respect to any person, entity, or

transaction pursuant to CEA sections 2(a)(1)(B), 4b, 4o, 6(c), 6(d),

6c, 8(a), 9(a)(2) or 13, or the regulations of the Commission

promulgated pursuant to such authorities, including CEA section 4c(b)

proscribing fraud.40 Additionally, this proposed relief would not

affect any Dodd-Frank Act implementing regulations (and any

implementation period contained therein) that the Commission

promulgates and applies to the subject transactions, market

participants, or markets.41 This proposed temporary exemptive relief

would expire upon the earlier of: (1) December 31, 2011; or (2) the

repeal or replacement of part 35 or part 32, as applicable. The

Commission is proposing to provide this exemptive relief in part two of

the proposed order for no longer than a fixed period of time for the

same reasons as described above with respect to part one of the

proposed order.

—————————————————————————

40 As discussed above, the addition of the term “swap” to

some of these provisions would not in any way affect the

applicability of these anti-fraud and anti-manipulation enforcement

provisions to transactions subject to relief pursuant to part two of

the proposed order.

41 Further, the proposed order would not affect any Commission

rulemaking authority over agreements, contracts, or transactions

that may not depend on the terms subject to further definition under

sections 712(d) or 721(c) of the Dodd-Frank Act. This relief also

would not affect any provisions of the Dodd-Frank Act or the CEA

that have become effective prior to July 16, 2011 or regulations

already issued.

—————————————————————————

III. Section 4(c) of the Commodity Exchange Act

Section 4(c)(1) of the CEA 42 authorizes the CFTC to exempt any

transaction or class of transactions (including any person or class of

persons offering, entering into, rendering advice or rendering other

services with respect to, the transaction) from any of the provisions

of the CEA (subject to certain exceptions). Pursuant to section

4(c)(2), the Commission must determine that: (1) The exemption is

appropriate for the transactions and consistent with the public

interest; (2) the exemption is consistent with the purposes of the CEA;

(3) the transaction will be entered into solely between “appropriate

persons;” 43 and (4) the exemption will not have a material adverse

effect on the ability of the Commission or any contract market to

discharge its regulatory or self-regulatory responsibilities under the

[[Page 35377]]

CEA.44 The Commission may grant such an exemption by rule, regulation

or order, after notice and opportunity for hearing, and may do so on

application of any person or on its own initiative. Further, the

Commission may grant such an exemption either conditionally or

unconditionally, or for stated periods within the Commission’s

discretion. Finally, section 712(f) of the Dodd-Frank Act authorizes

the Commission to “exempt persons, agreements, contracts, or

transactions from the provisions of the [Dodd-Frank] Act, under the

terms contained in” the Dodd-Frank Act, in order to prepare for the

effective dates of the provisions of Title VII.

—————————————————————————

42 Section 4(c)(1) of the CEA, 7 U.S.C. 6(c)(1), provides in

full that:

In order to promote responsible economic or financial innovation

and fair competition, the Commission by rule, regulation, or order,

after notice and opportunity for hearing, may (on its own initiative

or on application of any person, including any board of trade

designated or registered as a contract market or derivatives

transaction execution facility for transactions for future delivery

in any commodity under section 5 of this Act) exempt any agreement,

contract, or transaction (or class thereof) that is otherwise

subject to subsection (a) (including any person or class of persons

offering, entering into, rendering advice or rendering other

services with respect to, the agreement, contract, or transaction),

either unconditionally or on stated terms or conditions or for

stated periods and either retroactively or prospectively, or both,

from any of the requirements of subsection (a) of this section, or

from any other provision of this chapter (except subparagraphs

(C)(ii) and (D) of section 2(a)(1), except that the Commission and

the Securities and Exchange Commission may by rule, regulation, or

order jointly exclude any agreement, contract, or transaction from

section 2(a)(1)(D)), if the Commission determines that the exemption

would be consistent with the public interest.

43 CEA Section 4(c)(3), 7 U.S.C. 6(c)(3), includes within the

term “appropriate persons” a number of specified categories of

persons deemed appropriate under the CEA for entering into

transactions exempted by the Commission under section 4(c). This

includes persons the Commission determines to be appropriate in

light of their financial or other qualifications, or the

applicability of appropriate regulatory protections.

44 CEA Section 4(c)(2), 7 U.S.C. 6(c)(2), provides in full

that:

The Commission shall not grant any exemption under paragraph (1)

from any of the requirements of subsection (a) of this section

unless the Commission determines that–

(A) The requirement should not be applied to the agreement,

contract, or transaction for which the exemption is sought and that

the exemption would be consistent with the public interest and the

purposes of this Act; and

(B) the agreement, contract, or transaction–

(i) Will be entered into solely between appropriate persons; and

(ii) Will not have a material adverse effect on the ability of

the Commission or any contract market or derivatives transaction

execution facility to discharge its regulatory or self-regulatory

duties under this Act.

—————————————————————————

In enacting section 4(c), Congress noted that the goal of the

provision “is to give the Commission a means of providing certainty

and stability to existing and emerging markets so that financial

innovation and market development can proceed in an effective and

competitive manner.” 45 The proposed relief is intended to provide

clarity and stability to the markets and market participants concerning

the applicability of the provisions of the CEA, as added or amended by

the Dodd-Frank Act (in part one), and the current provisions of the CEA

as repealed by the Dodd-Frank Act (in part two), upon the general

effective date of the Dodd-Frank Act, thereby avoiding or minimizing

undue and unwarranted disruptions to the markets.

—————————————————————————

45 House Conf. Report No. 102-978, 1992 U.S.C.C.A.N. 3179,

3213.

—————————————————————————

The Commission notes that the proposed order is temporary in scope

and reserves the Commission’s anti-fraud and anti-manipulation

enforcement authority. As such, the Commission believes that the

proposed order would be consistent with the public interest and

purposes of the CEA. The Commission also believes the order to be

limited to appropriate persons, including persons in current

registration categories for which the Dodd-Frank Act expanded the

definition to include activities relating to swaps (e.g., introducing

brokers, commodity pool operators, commodity trading advisors, and

associated persons thereof).46 The proposed order will not have a

material adverse effect on the ability of the Commission or any

contract market to discharge its regulatory or self-regulatory duties

under the CEA.

—————————————————————————

46 See CEA section 4(c)(3)(K), 7 U.S.C. 6(c)(3)(K)

(appropriate persons may include such “other persons that the

Commission determines to be appropriate in light of their financial

or other qualifications, or the applicability of appropriate

regulatory protections”).

—————————————————————————

The Commission seeks comment on whether the proposed temporary

exemptions are consistent with the public interest and other

requirements of CEA section 4(c).

IV. Request for Comment

The Commission requests comment on all aspects of this proposed

temporary exemptive order.

V. Related Matters

A. Paperwork Reduction Act

The Paperwork Reduction Act (“PRA”) 47 imposes certain

requirements on Federal agencies (including the Commission) in

connection with conducting or sponsoring any collection of information

as defined by the PRA. This proposed temporary exemptive order, if

approved, would not require a new collection of information from any

persons or entities that would be subject to the proposed order.

—————————————————————————

47 44 U.S.C. 3507(d).

—————————————————————————

B. Cost-Benefit Analysis

Section 15(a) of the CEA 48 requires the Commission to consider

the costs and benefits of its action before issuing an order under the

CEA. By its terms, section 15(a) does not require the Commission to

quantify the costs and benefits of an order or to determine whether the

benefits of the order outweigh its costs. Rather, section 15(a) simply

requires the Commission to “consider the costs and benefits” of its

action.

—————————————————————————

48 7 U.S.C. 19(a).

—————————————————————————

Section 15(a) of the CEA further specifies that costs and benefits

shall be evaluated in light of five broad areas of market and public

concern: (1) Protection of market participants and the public; (2)

efficiency, competitiveness, and financial integrity of futures

markets; (3) price discovery; (4) sound risk management practices; and

(5) other public interest considerations. The Commission may in its

discretion give greater weight to any one of the five enumerated areas

and could in its discretion determine that, notwithstanding its costs,

a particular order is necessary or appropriate to protect the public

interest or to effectuate any of the provisions or to accomplish any of

the purposes of the CEA.

1. Protection of Market Participants and the Public

As discussed above, the Commission is proposing that the scope of

this temporary exemptive relief be limited to persons who are

“appropriate persons” as set forth in section 4(c) of the Act.

Further, this proposal does not affect the Commission’s existing and

future anti-fraud and anti-manipulation authorities, including CEA

sections 2(a)(1)(B), 4b, 4o, 6(c), 6(d), 6c, 8(a), 9(a)(2), or 13, or

the regulations of the Commission promulgated pursuant to such

authorities, including section 4c(b) proscribing fraud. The Commission

believes that market participants and the public will benefit from the

clarity offered by the proposed temporary exemptive relief, while

maintaining the Commission’s authorities regarding the prevention and

deterrence of fraud and manipulation. With respect to costs, the

Commission believes that the exemptive relief imposes no affirmative

duties or obligations on market participants and the public. The

temporary exemptive relief does not contain any requirement to create,

retain, submit, or disclose any information. Furthermore, the exemptive

relief imposes no recordkeeping or related data retention or disclosure

requirements on any person, including small businesses. Consequently,

the Commission finds it unlikely that the exemptive relief will impose

any additional costs beyond the existing costs associated with ongoing

operations, including those that ensure that behavior and statements

are not fraudulent or manipulative.

2. Efficiency, Competition, and Financial Integrity

Although the Dodd-Frank Act establishes a comprehensive new

regulatory framework for swaps, the Commission’s work to implement that

framework will not be complete as of July 16, 2011. Accordingly, this

relief offers the benefit of greater clarity in the swaps market that

is in the interest of both the markets and the public. Accordingly, the

Commission believes that this temporary exemptive relief is an

appropriate measure to facilitate a transition to the comprehensive new

regulatory framework for swaps set out in Title VII of the Dodd-Frank

Act. Such an orderly transition will promote

[[Page 35378]]

market efficiency, competition, and financial integrity.

3. Price Discovery

As stated above, the temporary relief proposed here is designed to

maintain the functioning of the markets until such time as the

comprehensive new regulatory framework for swaps set forth in the Dodd-

Frank Act is in place. With the clarity offered by the proposed

exemptive relief, markets would function better as venues for price

discovery.

4. Sound Risk Management Practices

Appropriate persons covered by this proposal would be subject to

the Commission’s full array of existing anti-fraud and anti-market

manipulation provisions and certain new authorities provided under the

Dodd-Frank Act. Market participants and the public will benefit

substantially from the continuing protection through the prevention and

deterrence of fraud and manipulation. Markets protected from fraud and

manipulation function better as venues for price discovery and risk

management.

5. Other Public Interest Considerations

The proposed exemptive order is temporary and limited. It would not

affect the applicability of any provision of the CEA to futures

contracts, options on futures contracts, or transactions with retail

customers in foreign currency or other commodities pursuant to CEA

section 2(c)(2). Further, it would expire at an appropriate date, as

discussed above. The expiration provision would permit the Commission

to ensure that the scope and extent of exemptive relief is

appropriately tailored to the schedule of implementation of the Dodd-

Frank Act requirements.

After considering these factors, the Commission has determined to

seek comment on the proposed temporary exemptive order, as discussed

above. The Commission seeks comment on all aspects of the foregoing

proposed application of the cost-benefit considerations set forth in

CEA section 15(a). Commenters also are invited to submit any data or

other information that they may have quantifying or qualifying the

costs and benefits of the proposal with their comment letters.

Issued in Washington, DC, on June 14, 2011 by the Commission.

David A. Stawick,

Secretary of the Commission.

Appendices to Effective Date for Swap Regulation–Commission Voting

Summary and Statements of Commissioners

Note: The following appendices will not appear in the Code of

Federal Regulations.

Appendix 1–Commission Voting Summary

On this matter, Chairman Gensler and Commissioners Dunn,

Sommers, Chilton and O’Malia voted in the affirmative; no

Commissioner voted in the negative.

Appendix 2–Statement of Chairman Gary Gensler

I support the proposed order regarding the effective dates of

certain Dodd-Frank Act provisions.

The Dodd-Frank Act has a deadline of 360 days after enactment

for completion of the bulk of our rulemakings–July 16, 2011. Both

the Dodd-Frank Act and the Commodity Exchange Act (CEA) give the

CFTC the flexibility and authority to address the issues relating to

the effective dates of Title VII. We have coordinated closely with

the SEC on these issues.

Section 754 of the Dodd-Frank Act states that Subtitle A of

Title VII–the Subtitle that provides for the regulation of swaps–

“shall take effect on the later of 360 days after the date of the

enactment of this subtitle or, to the extent a provision of this

subtitle requires a rulemaking, not less than 60 days after

publication of the final rule or regulation implementing such

provisions of this subtitle.”

Thus, those provisions that require rulemakings will not go into

effect until the CFTC finalizes the respective rules. This is a

substantial portion of the derivatives provisions under Dodd-Frank.

Furthermore, they will only go into effect based on the phased

implementation dates included in the final rules. Today we are

releasing a list of the provisions of the swaps subtitle that

require rulemakings.

There are other provisions of Title VII that do not require

rulemaking and will take effect on July 16. The proposed order that

we are considering today would provide relief until December 31,

2011, or when the definitional rulemakings become effective,

whichever is sooner, from certain provisions that would otherwise

apply to swaps or swap dealers on July 16. This includes provisions

that do not directly rely on a rule to be promulgated, but do refer

to terms that must be further defined by the CFTC and SEC, such as

“swap” and “swap dealer.”

The proposed order also would provide relief through no later

than December 31, 2011, from certain CEA requirements that may

result from the repeal, effective on July 16, 2011, of some of

sections 2(d), 2(e), 2(g), 2(h) and 5d.

There have been suggestions to delay implementation of the

derivatives reforms included in the Dodd-Frank Act. That is not what

today’s proposed order is. Instead, it provides the time necessary

for the Commission to complete the rulemaking process to implement

the Dodd-Frank Act.

Some might ask: Why six months? Six months will provide the

Commission with the opportunity to re-examine the status of final

rulemaking in light of the changed regulatory landscape at the time.

It would allow us, if appropriate at the time, to tailor relief from

certain provisions of the Dodd-Frank Act at the end of the year.

It is important to note, however, that until the CFTC completes

its rule-writing process and implements and enforces those new

rules, the public remains unprotected.

Appendix 3–Statement of Commissioner Bart Chilton

I concur with the Commission’s decision today to provide needed

relief with regard to provisions of the Wall Street Reform and

Consumer Protection Act that go into effect on July 16, 2011. I

believe, however, that the precise nature of this relief must be

developed utilizing an iterative process with affected parties to

ensure that essential legal certainty is provided to the markets and

to market participants. I will not support any final rule on this

issue that does not provide clear and unequivocal guidance regarding

the legality of transactions and the required responsibilities under

the Act. In addition, this relief must be issued promptly, in order

to ensure that there is no gap in the effective date of the Act’s

provisions and the common understanding of the effectiveness of

those dates.

[FR Doc. 2011-15195 Filed 6-15-11; 4:15 pm]

BILLING CODE 6351-01-P

Last Updated: June 17, 2011