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Proposed Rule

Definitions Contained in Title VII of Dodd-Frank Wall Street Reform and Consumer Protection Act

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AGENCY:

Securities and Exchange Commission; Commodity Futures Trading Commission.

ACTION:

Advance notice of proposed rulemaking; request for comments.

SUMMARY:

The Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Dodd-Frank Act”), provides for the comprehensive regulation of swaps and security-based swaps. Title VII of the Dodd-Frank Act (“Title VII”), provides that the Securities and Exchange Commission (“SEC”) and the Commodity Futures Trading Commission (“CFTC”) (collectively, “the Commissions”), in consultation with the Board of Governors of the Federal Reserve System, shall jointly further define certain key terms (specifically, “swap”, “security-based swap”, “swap dealer”, “security-based swap dealer”, “major swap participant”, “major security-based swap participant”, “eligible contract participant”, and “security-based swap agreement”), and shall jointly prescribe regulations regarding “mixed swaps,” as that term is used in Title VII of the Dodd-Frank Act. To assist the SEC and CFTC in further defining such terms, the Commissions are issuing this Notice and request for public comment.

DATES:

Comments must be in writing and received by September 20, 2010.

ADDRESSES:

Comments may be submitted by any of the following methods:

SEC

Electronic Comments

Paper Comments

  • Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.

All submissions should refer to File Number S7—16-10. This file number should be included on the subject line if e-mail is used. To help us process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site (http://www.sec.gov/​rules/​proposed.shtml). Comments are also available for Web site viewing and copying in the Commission's Public Reference Room, 100 F Street, NE., Washington, DC 20549, on official business days between the hours of 10 a.m. and 3 p.m. All comments received will be posted without change; we do not edit personal identifying information from submissions. You should submit only information that you wish to make available publicly.

CFTC

Comments may be submitted by any of the following methods:

  • Mail: David A. Stawick, Secretary, Commodity Futures Trading Commission, Three Lafayette Centre, 1155 21st Street, NW., Washington, DC 20581.
  • Hand Delivery/Courier: Same as mail above.
  • Fax: 202-418-5521.
  • E-mail: Comments may be submitted via e-mail at dfadefinitions@cftc.gov.
  • Agency Web Site: Comments may be submitted to http://www.cftc.gov. Follow the instructions for submitting comments on the Web site.
  • Federal eRulemaking Portal: Comments also may be submitted at http://www.regulations.gov. Follow the instructions for submitting comments.

“Definitions” 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. All comments provided in any electronic form or on paper will be published on the CFTC Web site, without review and without removal of personally identifying information. All comments are subject to the CFTC Privacy Policy.

Start Further Info

FOR FURTHER INFORMATION CONTACT:

SEC: Matthew A. Daigler, Senior Special Counsel, at 202-551-5578, or Cristie L. March, Attorney Adviser, at 202-551-5574, Division of Trading and Markets, or Michael J. Reedich, Special Counsel, at 202-551-3279, Office of Chief Counsel, Division of Corporate Finance, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-7010; CFTC: Terry S. Arbit, Deputy General Counsel, at 202-418-5357, tarbit@cftc.gov, Julian E. Hammar, Assistant General Counsel, at 202-418-5118, jhammar@cftc.gov, Mark Fajfar, Assistant General Counsel, at 202-418-6636, mfajfar@cftc.gov, or David Aron, Counsel, at 202-418-6621, daron@cftc.gov, Office of General Counsel, Commodity Futures Trading Commission, Three Lafayette Centre, 1155 21st Street, NW., Washington, DC 20581.

End Further Info End Preamble Start Supplemental Information

SUPPLEMENTARY INFORMATION:

I. Background

The Dodd-Frank Act was enacted on July 21, 2010.[1] Title VII of the Dodd-Frank Act provides for the comprehensive regulation of swaps and security-based swaps and includes definitions of key terms relating to such regulation.[2] Section 712(d) of the Dodd-Frank Act provides that the SEC and CFTC, in consultation with the Board of Governors of the Federal Reserve System, shall jointly further define the terms “swap”, “security-based swap”, “swap dealer”, “security-based swap dealer”, “major swap participant”, “major security-based swap participant”, “eligible contract participant”, and “security-based swap agreement” (collectively “Key Definitions”).[3] Section 712(d) further provides that such jointly prescribed rules and regulations shall be comparable to the maximum extent possible, taking into consideration differences in instruments and in the applicable statutory requirements.

Further, Section 721(c) requires the CFTC to adopt a rule to further define the terms “swap”, “swap dealer”, “major swap participant”, and “eligible contract participant”, and Section 761(b) requires the SEC to adopt a rule to further define the terms “security-based swap”, “security-based swap dealer”, “major security-based swap participant” and “eligible contract participant”, with regard to security-based swaps, for the purpose of including transactions and Start Printed Page 51430entities that have been structured to evade Title VII of the Dodd-Frank Act. Finally, Section 712(a) of the Dodd-Frank Act provides that the SEC and CFTC, after consultation with the Board of Governors of the Federal Reserve System, shall jointly prescribe regulations regarding “mixed swaps,” [4] as may be necessary to carry out the purposes of Title VII.

To assist the SEC and CFTC in further defining the Key Definitions specified above, and to prescribe regulations regarding “mixed swaps” as may be necessary to carry out the purposes of Title VII, the Commissions are seeking comment from interested parties.

II. Solicitation for Comments About the Key Definitions and the Regulation of “Mixed Swaps”

The Commissions invite comment with respect to all aspects of the Key Definitions, and also the regulation of “mixed swaps” as may be necessary to carry out the purposes of Title VII. Commenters are encouraged to address aspects of the Key Definitions such as the extent to which the definitions should be based on qualitative or quantitative factors and what those factors should be, any analogous areas of law, economics, or industry practice, and any factors specific to the commenter's experience. Commenters also are encouraged to express views on the regulation of “mixed swaps”, as may be necessary to carry out the purposes of Title VII. Please comment generally and specifically, and please include empirical data and other information in support of such comments, where appropriate and available, regarding any of the Key Definitions described above and the regulation of “mixed swaps”.

When commenting, please also take into account the statutory definitions of these terms that have been enacted in the Dodd-Frank Act. These statutory definitions are reprinted herein as follows:

Swap: Section 721(a)(21) of the Dodd-Frank Act:

“(47) Swap.—

(A) In general.—Except as provided in subparagraph (B), the term `swap' means any agreement, contract, or transaction—

(i) That is a put, call, cap, floor, collar, or similar option of any kind that is for the purchase or sale, or based on the value, of 1 or more interest or other rates, currencies, commodities, securities, instruments of indebtedness, indices, quantitative measures, or other financial or economic interests or property of any kind;

(ii) That provides for any purchase, sale, payment, or delivery (other than a dividend on an equity security) that is dependent on the occurrence, nonoccurrence, or the extent of the occurrence of an event or contingency associated with a potential financial, economic, or commercial consequence;

(iii) That provides on an executory basis for the exchange, on a fixed or contingent basis, of 1 or more payments based on the value or level of 1 or more interest or other rates, currencies, commodities, securities, instruments of indebtedness, indices, quantitative measures, or other financial or economic interests or property of any kind, or any interest therein or based on the value thereof, and that transfers, as between the parties to the transaction, in whole or in part, the financial risk associated with a future change in any such value or level without also conveying a current or future direct or indirect ownership interest in an asset (including any enterprise or investment pool) or liability that incorporates the financial risk so transferred, including any agreement, contract, or transaction commonly known as—

(I) An interest rate swap;

(II) A rate floor;

(III) A rate cap;

(IV) A rate collar;

(V) A cross-currency rate swap;

(VI) A basis swap;

(VII) A currency swap;

(VIII) A foreign exchange swap;

(IX) A total return swap;

(X) An equity index swap;

(XI) An equity swap;

(XII) A debt index swap;

(XIII) A debt swap;

(XIV) A credit spread;

(XV) A credit default swap;

(XVI) A credit swap;

(XVII) A weather swap;

(XVIII) An energy swap;

(XIX) A metal swap;

(XX) An agricultural swap;

(XXI) An emissions swap; and

(XXII) A commodity swap;

(iv) That is an agreement, contract, or transaction that is, or in the future becomes, commonly known to the trade as a swap;

(v) Including any security-based swap agreement which meets the definition of `swap agreement' as defined in section 206A of the Gramm-Leach-Bliley Act (15 U.S.C. 78c note) of which a material term is based on the price, yield, value, or volatility of any security or any group or index of securities, or any interest therein; or

(vi) That is any combination or permutation of, or option on, any agreement, contract, or transaction described in any of clauses (i) through (v).

(B) Exclusions.—The term ‘swap’ does not include—

(i) Any contract of sale of a commodity for future delivery (or option on such a contract), leverage contract authorized under section 19, security futures product, or agreement, contract, or transaction described in section 2(c)(2)(C)(i) or section 2(c)(2)(D)(i);

(ii) Any sale of a nonfinancial commodity or security for deferred shipment or delivery, so long as the transaction is intended to be physically settled;

(iii) Any put, call, straddle, option, or privilege on any security, certificate of deposit, or group or index of securities, including any interest therein or based on the value thereof, that is subject to—

(I) The Securities Act of 1933 (15 U.S.C. 77a et seq.); and

(II) The Securities Exchange Act of 1934 (15 U.S.C. 78a et seq.);

(iv) Any put, call, straddle, option, or privilege relating to a foreign currency entered into on a national securities exchange registered pursuant to section 6(a) of the Securities Exchange Act of 1934 (15 U.S.C. 78f(a));

(v) Any agreement, contract, or transaction providing for the purchase or sale of 1 or more securities on a fixed basis that is subject to—

(I) The Securities Act of 1933 (15 U.S.C. 77a et seq.); and

(II) The Securities Exchange Act of 1934 (15 U.S.C. 78a et seq.);

(vi) Any agreement, contract, or transaction providing for the purchase or sale of 1 or more securities on a contingent basis that is subject to the Securities Act of 1933 (15 U.S.C. 77a et seq.) and the Securities Exchange Act of 1934 (15 U.S.C. 78a et seq.), unless the agreement, contract, or transaction predicates the purchase or sale on the occurrence of a bona fide contingency that might reasonably be expected to affect or be affected by the creditworthiness of a party other than a party to the agreement, contract, or transaction;

(vii) Any note, bond, or evidence of indebtedness that is a security, as defined in section 2(a)(1) of the Securities Act of 1933 (15 U.S.C. 77b(a)(1));

(viii) Any agreement, contract, or transaction that is—

(I) Based on a security; and

(II) Entered into directly or through an underwriter (as defined in section 2(a)(11) of the Securities Act of 1933 (15 U.S.C. 77b(a)(11)) by the issuer of such security for the purposes of raising capital, unless the agreement, contract, or transaction is entered into to manage a risk associated with capital raising;

(ix) Any agreement, contract, or transaction a counterparty of which is a Federal Reserve bank, the Federal Government, or a Federal agency that is expressly backed by the full faith and credit of the United States; and

(x) Any security-based swap, other than a security-based swap as described in subparagraph (D).

(C) Rule of Construction regarding master agreements.—

(i) In general.—Except as provided in clause (ii), the term `swap' includes a master agreement that provides for an agreement, contract, or transaction that is a swap under subparagraph (A), together with each supplement to any master agreement, without regard to whether the master agreement contains an agreement, contract, or transaction that is not a swap pursuant to subparagraph (A).

(ii) Exception.—For purposes of clause (i), the master agreement shall be considered to be a swap only with respect to each agreement, contract, or transaction covered by the master agreement that is a swap pursuant to subparagraph (A).Start Printed Page 51431

(D) Mixed swap.—The term `security-based swap' includes any agreement, contract, or transaction that is as described in section 3(a)(68)(A) of the Securities Exchange Act of 1934 (15 U.S.C. 78c(a)(68)(A)) and also is based on the value of 1 or more interest or other rates, currencies, commodities, instruments of indebtedness, indices, quantitative measures, other financial or economic interest or property of any kind (other than a single security or a narrow-based security index), or the occurrence, non-occurrence, or the extent of the occurrence of an event or contingency associated with a potential financial, economic, or commercial consequence (other than an event described in subparagraph (A)(iii)).

(E) Treatment of foreign exchange swaps and forwards.—

(i) In general.—Foreign exchange swaps and foreign exchange forwards shall be considered swaps under this paragraph unless the Secretary makes a written determination under section 1b that either foreign exchange swaps or foreign exchange forwards or both—

(I) Should be not be regulated as swaps under this Act; and

(II) Are not structured to evade the Dodd-Frank Wall Street Reform and Consumer Protection Act in violation of any rule promulgated by the [Commodity Futures Trading] Commission pursuant to section 721(c) of that Act.

(ii) Congressional notice; effectiveness.—The Secretary shall submit any written determination under clause (i) to the appropriate committees of Congress, including the Committee on Agriculture, Nutrition, and Forestry of the Senate and the Committee on Agriculture of the House of Representatives. Any such written determination by the Secretary shall not be effective until it is submitted to the appropriate committees of Congress.

(iii) Reporting.—Notwithstanding a written determination by the Secretary under clause (i), all foreign exchange swaps and foreign exchange forwards shall be reported to either a swap data repository, or, if there is no swap data repository that would accept such swaps or forwards, to the [Commodity Futures Trading] Commission pursuant to section 4r within such time period as the [Commodity Futures Trading] Commission may by rule or regulation prescribe.

(iv) Business standards.—Notwithstanding a written determination by the Secretary pursuant to clause (i), any party to a foreign exchange swap or forward that is a swap dealer or major swap participant shall conform to the business conduct standards contained in section 4s(h).

(v) Secretary.—For purposes of this subparagraph, the term `Secretary' means the Secretary of the Treasury.

(F) Exception for certain foreign exchange swaps and forwards.—

(i) Registered entities.—Any foreign exchange swap and any foreign exchange forward that is listed and traded on or subject to the rules of a designated contract market or a swap execution facility, or that is cleared by a derivatives clearing organization, shall not be exempt from any provision of this Act or amendments made by the Wall Street Transparency and Accountability Act of 2010 prohibiting fraud or manipulation.

(ii) Retail transactions.—Nothing in subparagraph (E) shall affect, or be construed to affect, the applicability of this Act or the jurisdiction of the [Commodity Futures Trading] Commission with respect to agreements, contracts, or transactions in foreign currency pursuant to section 2(c)(2).”

Security-Based Swap: Section 761(a)(6) of the Dodd-Frank Act:

“(68) Security-Based Swap.—

(A) In general.—Except as provided in subparagraph (B), the term `security-based swap' means any agreement, contract, or transaction that—

(i) Is a swap, as that term is defined under section 1a of the Commodity Exchange Act (without regard to paragraph (47)(B)(x) of such section); and

(ii) Is based on—

(I) An index that is a narrow-based security index, including any interest therein or on the value thereof;

(II) A single security or loan, including any interest therein or on the value thereof; or

(III) The occurrence, nonoccurrence, or extent of the occurrence of an event relating to a single issuer of a security or the issuers of securities in a narrow-based security index, provided that such event directly affects the financial statements, financial condition, or financial obligations of the issuer.

(B) Rule of construction regarding master agreements.—The term `security-based swap' shall be construed to include a master agreement that provides for an agreement, contract, or transaction that is a security-based swap pursuant to subparagraph (A), together with all supplements to any such master agreement, without regard to whether the master agreement contains an agreement, contract, or transaction that is not a security-based swap pursuant to subparagraph (A), except that the master agreement shall be considered to be a security-based swap only with respect to each agreement, contract, or transaction under the master agreement that is a security-based swap pursuant to subparagraph (A).

(C) Exclusions.—The term `security-based swap' does not include any agreement, contract, or transaction that meets the definition of a security-based swap only because such agreement, contract, or transaction references, is based upon, or settles through the transfer, delivery, or receipt of an exempted security under paragraph (12), as in effect on the date of enactment of the Futures Trading Act of 1982 (other than any municipal security as defined in paragraph (29) as in effect on the date of enactment of the Futures Trading Act of 1982), unless such agreement, contract, or transaction is of the character of, or is commonly known in the trade as, a put, call, or other option.

(D) Mixed swap.—The term `security-based swap' includes any agreement, contract, or transaction that is as described in subparagraph (A) and also is based on the value of 1 or more interest or other rates, currencies, commodities, instruments of indebtedness, indices, quantitative measures, other financial or economic interest or property of any kind (other than a single security or a narrow-based security index), or the occurrence, non-occurrence, or the extent of the occurrence of an event or contingency associated with a potential financial, economic, or commercial consequence (other than an event described in subparagraph (A)(ii)(III)).

(E) Rule of construction regarding use of the term index.—The term `index' means an index or group of securities, including any interest therein or based on the value thereof.”

Swap Dealer: Section 721(a)(21) of the Dodd-Frank Act:

“(49) Swap dealer.—

(A) In general.—The term `swap dealer' means any person who—

(i) Holds itself out as a dealer in swaps;

(ii) Makes a market in swaps;

(iii) Regularly enters into swaps with counterparties as an ordinary course of business for its own account; or

(iv) Engages in any activity causing the person to be commonly known in the trade as a dealer or market maker in swaps, provided however, in no event shall an insured depository institution be considered to be a swap dealer to the extent it offers to enter into a swap with a customer in connection with originating a loan with that customer.

(B) Inclusion.—A person may be designated as a swap dealer for a single type or single class or category of swap or activities and considered not to be a swap dealer for other types, classes, or categories of swaps or activities.

(C) Exception.—The term `swap dealer' does not include a person that enters into swaps for such person's own account, either individually or in a fiduciary capacity, but not as a part of a regular business.

(D) De minimis exception.—The [Commodity Futures Trading] Commission shall exempt from designation as a swap dealer an entity that engages in a de minimis quantity of swap dealing in connection with transactions with or on behalf of its customers. The [Commodity Futures Trading] Commission shall promulgate regulations to establish factors with respect to the making of this determination to exempt.”

Security-Based Swap Dealer: Section 761(a)(6) of the Dodd-Frank Act:

“(71) Security-Based Swap Dealer.—

(A) In general.—The term `security-based swap dealer' means any person who—

(i) Holds themself out as a dealer in security-based swaps;

(ii) Makes a market in security-based swaps;

(iii) Regularly enters into security-based swaps with counterparties as an ordinary course of business for its own account; or

(iv) Engages in any activity causing it to be commonly known in the trade as a dealer or market maker in security-based swaps.

(B) Designation by type or class.—A person may be designated as a security-based swap dealer for a single type or single class or category of security-based swap or activities and considered not to be a security-based Start Printed Page 51432swap dealer for other types, classes, or categories of security based swaps or activities.

(C) Exception.—The term `security-based swap dealer' does not include a person that enters into security-based swaps for such person's own account, either individually or in a fiduciary capacity, but not as a part of regular business.

(D) De minimis exception.—The [Securities and Exchange] Commission shall exempt from designation as a security-based swap dealer an entity that engages in a de minimis quantity of security-based swap dealing in connection with transactions with or on behalf of its customers. The [Securities and Exchange] Commission shall promulgate regulations to establish factors with respect to the making of any determination to exempt.”

Major Swap Participant: Section 721(a)(16) of the Dodd-Frank Act:

“(33) Major Swap Participant.—

(A) In general.—The term `major swap participant' means any person who is not a swap dealer, and—

(i) Maintains a substantial position in swaps for any of the major swap categories as determined by the [Commodity Futures Trading] Commission, excluding—

(I) Positions held for hedging or mitigating commercial risk; and

(II) Positions maintained by any employee benefit plan (or any contract held by such a plan) as defined in paragraphs (3) and (32) of section 3 of the Employee Retirement Income Security Act of 1974 (29 U.S.C. 1002) for the primary purpose of hedging or mitigating any risk directly associated with the operation of the plan;

(ii) Whose outstanding swaps create substantial counterparty exposure that could have serious adverse effects on the financial stability of the United States banking system or financial markets; or

(iii)(I) Is a financial entity that is highly leveraged relative to the amount of capital it holds and that is not subject to capital requirements established by an appropriate Federal banking agency; and

(II) Maintains a substantial position in outstanding swaps in any major swap category as determined by the [Commodity Futures Trading] Commission.

(B) Definition of substantial position.—For purposes of subparagraph (A), the [Commodity Futures Trading] Commission shall define by rule or regulation the term `substantial position' at the threshold that the [Commodity Futures Trading] Commission determines to be prudent for the effective monitoring, management, and oversight of entities that are systemically important or can significantly impact the financial system of the United States. In setting the definition under this subparagraph, the [Commodity Futures Trading] Commission shall consider the person's relative position in uncleared as opposed to cleared swaps and may take into consideration the value and quality of collateral held against counterparty exposures.

(C) Scope of designation.—For purposes of subparagraph (A), a person may be designated as a major swap participant for 1 or more categories of swaps without being classified as a major swap participant for all classes of swaps.

(D) Exclusions.—The definition under this paragraph shall not include an entity whose primary business is providing financing, and 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.”

Major Security-Based Swap Participant: Section 761(a)(6) of the Dodd-Frank Act:

“(67) Major Security-Based Swap Participant.—

(A) In general.—The term `major security-based swap participant' means any person—

(i) Who is not a security-based swap dealer; and

(ii)(I) Who maintains a substantial position in security-based swaps for any of the major security-based swap categories, as such categories are determined by the [Securities and Exchange] Commission, excluding both positions held for hedging or mitigating commercial risk and positions maintained by any employee benefit plan (or any contract held by such a plan) as defined in paragraphs (3) and (32) of section 3 of the Employee Retirement Income Security Act of 1974 (29 U.S.C. 1002) for the primary purpose of hedging or mitigating any risk directly associated with the operation of the plan;

(II) Whose outstanding security-based swaps create substantial counterparty exposure that could have serious adverse effects on the financial stability of the United States banking system or financial markets; or

(III) That is a financial entity that—

(aa) Is highly leveraged relative to the amount of capital such entity holds and that is not subject to capital requirements established by an appropriate Federal banking agency; and

(bb) Maintains a substantial position in outstanding security-based swaps in any major security-based swap category, as such categories are determined by the [Securities and Exchange] Commission.

(B) Definition of substantial position.—For purposes of subparagraph (A), the [Securities and Exchange] Commission shall define, by rule or regulation, the term `substantial position' at the threshold that the [Securities and Exchange] Commission determines to be prudent for the effective monitoring, management, and oversight of entities that are systemically important or can significantly impact the financial system of the United States. In setting the definition under this subparagraph, the [Securities and Exchange] Commission shall consider the person's relative position in uncleared as opposed to cleared security-based swaps and may take into consideration the value and quality of collateral held against counterparty exposures.

(C) Scope of designation.—For purposes of subparagraph (A), a person may be designated as a major security-based swap participant for 1 or more categories of security-based swaps without being classified as a major security-based swap participant for all classes of security-based swaps.”

Eligible Contract Participant: Section 1a(18) of the Commodity Exchange Act, 7 U.S.C. 1a(18), as re-designated and amended by Sections 721(a)(9) and 741(b)(10) [5] of the Dodd-Frank Act:

“(18) Eligible Contract Participant.—The term `eligible contract participant' means—

(A) Acting for its own account—

(i) A financial institution;

(ii) An insurance company that is regulated by a State, or that is regulated by a foreign government and is subject to comparable regulation as determined by the [Commodity Futures Trading] Commission, including a regulated subsidiary or affiliate of such an insurance company;

(iii) An investment company subject to regulation under the Investment Company Act of 1940 (15 U.S.C. 80a-1 et seq.) or a foreign person performing a similar role or function subject as such to foreign regulation (regardless of whether each investor in the investment company or the foreign person is itself an eligible contract participant);

(iv) A commodity pool that—

(I) Has total assets exceeding $5,000,000; and

(II) Is formed and operated by a person subject to regulation under this Act or a foreign person performing a similar role or function subject as such to foreign regulation (regardless of whether each investor in the commodity pool or the foreign person is itself an eligible contract participant) provided, however, that for purposes of section 2(c)(2)(B)(vi) and section 2(c)(2)(C)(vii), the term `eligible contract participant' shall not include a commodity pool in which any participant is not otherwise an eligible contract participant;

(v) A corporation, partnership, proprietorship, organization, trust, or other entity—

(I) That has total assets exceeding $10,000,000;

(II) The obligations of which under an agreement, contract, or transaction are guaranteed or otherwise supported by a letter of credit or keepwell, support, or other agreement by an entity described in subclause (I), in clause (i), (ii), (iii), (iv), or (vii), or in subparagraph (C); or

(III) That—

(aa) Has a net worth exceeding $1,000,000; and

(bb) Enters into an agreement, contract, or transaction in connection with the conduct of Start Printed Page 51433the entity's business or to manage the risk associated with an asset or liability owned or incurred or reasonably likely to be owned or incurred by the entity in the conduct of the entity's business;

(vi) An employee benefit plan subject to the Employee Retirement Income Security Act of 1974 (29 U.S.C. 1001 et seq.), a governmental employee benefit plan, or a foreign person performing a similar role or function subject as such to foreign regulation—

(I) That has total assets exceeding $5,000,000; or

(II) The investment decisions of which are made by—

(aa) An investment adviser or commodity trading advisor subject to regulation under the Investment Advisers Act of 1940 (15 U.S.C. 80b-1 et seq.) or this Act;

(bb) A foreign person performing a similar role or function subject as such to foreign regulation;

(cc) A financial institution; or

(dd) An insurance company described in clause (ii), or a regulated subsidiary or affiliate of such an insurance company;

(vii)(I) A governmental entity (including the United States, a State, or a foreign government) or political subdivision of a governmental entity;

(II) A multinational or supranational government entity; or

(III) An instrumentality, agency, or department of an entity described in subclause (I) or (II);

except that such term does not include an entity, instrumentality, agency, or department referred to in subclause (I) or (III) of this clause unless (aa) the entity, instrumentality, agency, or department is a person described in clause (i), (ii), or (iii) of paragraph (17)(A); (bb) the entity, instrumentality, agency, or department owns and invests on a discretionary basis $50,000,000 or more in investments; or (cc) the agreement, contract, or transaction is offered by, and entered into with, an entity that is listed in any of subclauses (I) through (VI) of section 2(c)(2)(B)(ii);

(viii)(I) A broker or dealer subject to regulation under the Securities Exchange Act of 1934 (15 U.S.C. 78a et seq.) or a foreign person performing a similar role or function subject as such to foreign regulation, except that, if the broker or dealer or foreign person is a natural person or proprietorship, the broker or dealer or foreign person shall not be considered to be an eligible contract participant unless the broker or dealer or foreign person also meets the requirements of clause (v) or (xi);

(II) An associated person of a registered broker or dealer concerning the financial or securities activities of which the registered person makes and keeps records under section 15C(b) or 17(h) of the Securities Exchange Act of 1934 (15 U.S.C. 78o-5(b), 78q(h));

(III) An investment bank holding company (as defined in section 17(i) of the Securities Exchange Act of 1934 (15 U.S.C. 78q(i));

(ix) A futures commission merchant subject to regulation under this Act or a foreign person performing a similar role or function subject as such to foreign regulation, except that, if the futures commission merchant or foreign person is a natural person or proprietorship, the futures commission merchant or foreign person shall not be considered to be an eligible contract participant unless the futures commission merchant or foreign person also meets the requirements of clause (v) or (xi);

(x) A floor broker or floor trader subject to regulation under this Act in connection with any transaction that takes place on or through the facilities of a registered entity (other than an electronic trading facility with respect to a significant price discovery contract) or an exempt board of trade, or any affiliate thereof, on which such person regularly trades; or

(xi) An individual who has amounts invested on a discretionary basis, the aggregate of which is in excess of—

(I) $10,000,000; or

(II) $5,000,000 and who enters into the agreement, contract, or transaction in order to manage the risk associated with an asset owned or liability incurred, or reasonably likely to be owned or incurred, by the individual;

(B)(i) A person described in clause (i), (ii), (iv), (v), (viii), (ix), or (x) of subparagraph (A) or in subparagraph (C), acting as broker or performing an equivalent agency function on behalf of another person described in subparagraph (A) or (C); or

(ii) An investment adviser subject to regulation under the Investment Advisers Act of 1940, a commodity trading advisor subject to regulation under this Act, a foreign person performing a similar role or function subject as such to foreign regulation, or a person described in clause (i), (ii), (iv), (v), (viii), (ix), or (x) of subparagraph (A) or in subparagraph (C), in any such case acting as investment manager or fiduciary (but excluding a person acting as broker or performing an equivalent agency function) for another person described in subparagraph (A) or (C) and who is authorized by such person to commit such person to the transaction; or

(C) Any other person that the [Commodity Futures Trading] Commission determines to be eligible in light of the financial or other qualifications of the person.”

Security-Based Swap Agreement: Section 761(a)(6) of the Dodd-Frank Act:

“(78) Security-Based Swap Agreement.—

(A) In general.—For purposes of sections 9, 10, 16, 20, and 21A of this Act, and section 17 of the Securities Act of 1933 (15 U.S.C. 77q), the term `security-based swap agreement' means a swap agreement as defined in section 206A of the Gramm-Leach-Bliley Act (15 U.S.C. 78c note) of which a material term is based on the price, yield, value, or volatility of any security or any group or index of securities, or any interest therein.

(B) Exclusions.—The term `security-based swap agreement' does not include any security-based swap.”

Start Signature

By the Securities and Exchange Commission.

Dated: August 13, 2010.

Elizabeth M. Murphy,

Secretary.

By the Commodity Futures Trading Commission.

Dated: August 13, 2010.

David A. Stawick,

Secretary.

End Signature End Supplemental Information

Footnotes

1.  Dodd-Frank Wall Street Reform and Consumer Protection Act, Public Law No. 111-203, 124 Stat. 1376 (2010).

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2.  Under Section 701 of the Dodd-Frank Act, Title VII may be cited as the “Wall Street Transparency and Accountability Act of 2010.”

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3.  These terms are defined in Sections 721 and 761 of the Dodd-Frank Act and, with respect to the term “eligible contract participant”, in Section 1a(18) of the Commodity Exchange Act, 7 U.S.C. 1a(18), as re-designated and amended by Section 721 of the Dodd-Frank Act.

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4.  Sections 721 and 761 of the Dodd-Frank Act amend the Commodity Exchange Act, 7 U.S.C. 1 et seq., and the Securities Exchange Act of 1934, 15 U.S.C. 78a et seq., respectively, to define “mixed swap”.

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5.  Section 741(b)(10) of the Dodd-Frank Act provides that “Section 1a(19)(A)(iv)(II) of the Commodity Exchange Act (7 U.S.C. 1a(19)(A)(iv)(II)) (as redesignated by section 721(a)(1)) is amended by inserting before the semicolon at the end the following: “provided, however, that for purposes of section 2(c)(2)(B)(vi) and section 2(c)(2)(C)(vii), the term `eligible contract participant' shall not include a commodity pool in which any participant is not otherwise an eligible contract participant”. The probable intent of Congress was to amend the definition of “eligible contract participant”, which is in paragraph (18)(A)(iv)(II), not paragraph (19)(A)(iv)(II).

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[FR Doc. 2010-20567 Filed 8-19-10; 8:45 am]

BILLING CODE P