112TH CONGRESS REPT. 112–344 " ! HOUSE OF REPRESENTATIVES 1st Session Part 1 

TO EXEMPT INTER-AFFILIATE SWAPS FROM CERTAIN REGULATORY 

REQUIREMENTS PUT IN PLACE BY THE DODD-FRANK WALL STREET REFORM AND CONSUMER PROTECTION ACT 

DECEMBER 23, 2011.—Ordered to be printed 

Mr. BACHUS, from the Committee on Financial Services, 

submitted the following 

R E P O R T 

[To accompany H.R. 2779] 

[Including cost estimate of the Congressional Budget Office] 

The Committee on Financial Services, to whom was referred the 

bill (H.R. 2779) to exempt inter-affiliate swaps from certain regulatory requirements put in place by the Dodd-Frank Wall Street 

Reform and Consumer Protection Act, having considered the same, 

report favorably thereon with an amendment and recommend that 

the bill as amended do pass. 

The amendment is as follows: 

Strike all after the enacting clause and insert the following: 

SECTION 1. TREATMENT OF AFFILIATE TRANSACTIONS. 

(a) COMMODITY EXCHANGE ACT AMENDMENTS.—Section 1a(47) of the Commodity 

Exchange Act (7 U.S.C. 1(a)(47)), as added by section 721(a)(21) of the Dodd-Frank 

Wall Street Reform and Consumer Protection Act, is amended by adding at the end 

the following: 

‘‘(G) TREATMENT OF AFFILIATE TRANSACTIONS.— 

‘‘(i) IN GENERAL.—The term ‘swap’ does not include any agreement, 

contract, or transaction that— 

‘‘(I) would otherwise be included as a ‘swap’ under subparagraph 

(A); and 

‘‘(II) is entered into by a party that is controlling, controlled by, 

or under common control with its counterparty. 

‘‘(ii) REPORTING.—All agreements, contracts, or transactions described 

in clause (i) shall be reported to either a swap data repository, or, if 

there is no swap data repository that would accept such swaps, to the 

Commission pursuant to section 4r within such time period as the 

Commission may by rule or regulation prescribe.’’. 

(b) SECURITIES EXCHANGE ACT OF 1934 AMENDMENTS.—Section 3(a)(68) of the Securities Exchange Act of 1934 (15 U.S.C. 78c(3)(a)(68)), as added by section 761(a)(6) 

of the Dodd-Frank Wall Street Reform and Consumer Protection Act, is amended 

by adding at the end the following: 

‘‘(F) TREATMENT OF AFFILIATE TRANSACTIONS.— 

‘‘(i) IN GENERAL.—For the purposes of any clearing and execution requirements under sections 3C and any applicable margin and capital 

requirements of section 15F(e), and for purposes of defining a securityVerDate Mar 15 2010 05:41 Dec 28, 2011 Jkt 019006 PO 00000 Frm 00001 Fmt 6659 Sfmt 6621 E:\HR\OC\HR344P1.XXX HR344P1

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based swap dealer or a major security-based swap participant, and reporting requirements other than those set forth in clause (ii), the term 

‘security-based swap’ does not include any agreement, contract, or 

transaction that— 

‘‘(I) would otherwise be included as a ‘security-based swap’ under 

subparagraph (A); and 

‘‘(II) is entered into by parties that report information or prepare 

financial statements on a consolidated basis, or for which an affiliated company reports information or prepares financial statements 

on a consolidated basis for both parties. 

‘‘(ii) REPORTING.—All agreements, contracts, or transactions described 

in clause (i) shall be reported to either a security-based swap data repository, or, if there is no security-based swap data repository that 

would accept such security-based swaps, to the Commission pursuant 

to section 13A within such time period as the Commission may by rule 

or regulation prescribe. 

‘‘(iii) PRESERVATION OF FEDERAL RESERVE ACT AUTHORITY.—Nothing 

in this subparagraph shall exempt a transaction described in this subparagraph from sections 23A or 23B of the Federal Reserve Act or implementing regulations thereunder. 

‘‘(iv) PROTECTION OF INSURANCE FUNDS.—Nothing in this subparagraph shall be construed to prevent the regulator of a Federal or State 

insurance fund or guaranty fund from exercising its other existing authority to protect the integrity of such a fund, except that such regulator shall not subject security-based swap transactions between affiliated companies to clearing and execution requirements under section 

3C, to any applicable margin and capital requirements of section 

15F(e), or to reporting requirements other than those set forth in clause 

(ii). 

‘‘(v) PREVENTION OF EVASION.—The Commission may prescribe rules 

under this subparagraph (and issue interpretations of rules prescribed 

under this subparagraph) as determined by the Commission to be necessary to include in the definition of security-based swap under this 

paragraph any agreement, contract, or transaction that has been structured as an affiliate transaction to evade the requirements of this Act 

applicable to security-based swaps.’’. 

PURPOSE AND SUMMARY

Inter-affiliate swaps are swaps and security-based swaps executed between entities under common corporate ownership. H.R. 

2779 exempts inter-affiliate swaps and security-based swap trades 

from many of the regulations in Title VII of the Dodd-Frank Wall 

Street Reform and Consumer Protection Act (PL 111–203) that are 

designed to mitigate risks associated with so-called ‘‘market-facing 

trades,’’ where a corporation executes a derivatives transaction 

with an investment bank or other entity, which may be either a 

swap dealer or security-based swap dealer. 

Under H.R. 2779, inter-affiliate swap trades must still be reported to a swap data repository and to the appropriate regulators. 

While the bill does not exempt security-based swap trades from all 

of Title VII’s requirements, the bill does exempt such transactions 

from the margin, capital, clearing and execution, and real-time reporting requirements of Title VII. The bill would also prohibit affiliate transactions from being used as a factor in defining a securitybased swap dealer or major security-based swap participant. 

BACKGROUND AND NEED FOR LEGISLATION

Inter-affiliate swaps allow a company with subsidiaries and affiliates to better manage risk by transferring the risk of its affiliates to a single affiliate and then executing swaps through that 

affiliate. Inter-affiliate swaps do not pose a systemic risk because 


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they do not create additional counterparty exposures or increase 

the interconnectedness between parties outside the corporate 

group. Currently, companies use inter-affiliate swaps to combine 

positions and centrally hedge risk. This is accomplished by executing most or all of its external swaps or security-based swaps 

through a single or limited number of affiliates. 

Despite the significant differences between inter-affiliate swaps 

and swaps between unrelated parties, the Dodd-Frank Act treats 

these swaps the same, which needlessly increases the cost of hedging risk for end-users. 

At an October 14, 2011, hearing of the Capital Markets and Government Sponsored Enterprises Subcommittee, Ms. Brenda 

Boultwood of Constellation Energy testified on behalf of the Coalition for Derivatives End-Users that: 

Constellation Energy, like many other companies, uses a 

business model through which we limit the number of affiliates within our corporation that enters into derivatives 

transactions with external and other swap dealer counterparties. Rather than having each corporate subsidiary 

transact individually with external counterparties, a single 

or limited number of corporate entities face dealers and 

other counterparties in the market. This helps our company centralize risk taking, accountability and performance management. These entities then allocate transactions to those affiliates seeking to mitigate the underlying risk. This allocation is done by way of ‘‘interaffiliate 

swaps’’—or swaps between commonly controlled entities. 

This structure allows us to more effectively manage our 

corporate risk on an enterprise basis and to secure better 

pricing on our derivatives transactions. The transactions 

are largely ‘‘bookkeeping’’ in nature and do not create systemic risk. Using affiliates to transact has always been a 

healthy part of the way many companies internally centralize risk and manage overall performance. 

Further, Ms. Boultwood testified that H.R. 2779 ‘‘would exempt 

a category of swaps, not a particular type of entity from regulation. 

That is precisely what the Administration did in exempting foreign 

exchange swaps and forwards and it is the right approach here as 

well.’’ 

HEARINGS

On October 14, 2011, the Subcommittee on Capital Markets and 

Government Sponsored Enterprises held a hearing entitled ‘‘Legislative Proposals to Bring Certainty to the Over-the-Counter Derivatives Market,’’ to consider H.R. 2779, and four other bills. The following witnesses testified: 

• Mr. Keith Bailey, Managing Director, Fixed Income, Currencies and Commodities, Barclays Capital, on behalf of the Institute of International Bankers 

• Mr. Shawn Bernardo, Senior Managing Director, Tullett 

Prebon, on behalf of the Wholesale Market Brokers’ Association Americas 


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• Ms. Brenda Boultwood, Chief Risk Officer and Senior Vice 

President, CE Risk Management Division Office, Constellation 

Energy, on behalf of the Coalition of Derivatives End-Users • Mr. James Cawley, CEO, Javelin Capital Markets LLC • Mr. Kent Mason, Davis & Harman LLP, on behalf of the 

American Benefits Council and the Committee on the Investment of Employee Benefit Assets • Mr. Conrad Voldstad, Chief Executive Officer, International Swaps and Derivatives Association 

COMMITTEE CONSIDERATION

The Subcommittee on Capital Markets and Government Sponsored Enterprises met in open session on November 15, 2011, and 

ordered H.R. 2779 favorably reported to the full Committee by a 

record vote of 23 yeas, 6 nays and 1 present (Record vote no. CM– 

42). 

The Committee on Financial Services met in open session on November 30, 2011, and ordered H.R. 2779, as amended, favorably reported to the House by a record vote of 53 yeas and 0 nays (Record 

vote no. FC–53). 

COMMITTEE VOTES

Clause 3(b) of rule XIII of the Rules of the House of Representatives requires the Committee to list the record votes on the motion 

to report legislation and amendments thereto. A motion by Chairman Bachus to report the bill, as amended, to the House with a 

favorable recommendation was agreed to by a record vote of 53 

yeas and 0 nays (Record vote no. FC–53). The names of Members 

voting for and against follow: 

RECORD VOTE NO. FC–53 

Representative Aye Nay Present Representative Aye Nay Present 

Mr. Bachus ........................... X ........... ............. Mr. Frank (MA) ..................... X ........... .............

Mr. Hensarling ...................... X ........... ............. Ms. Waters ........................... X ........... .............

Mr. King (NY) ........................ X ........... ............. Mrs. Maloney ........................ X ........... .............

Mr. Royce .............................. X ........... ............. Mr. Gutierrez ........................ ........... ........... .............

Mr. Lucas .............................. X ........... ............. Ms. Vela ́zquez ...................... ........... ........... .............

Mr. Paul ................................ ........... ........... ............. Mr. Watt ............................... X ........... .............

Mr. Manzullo ......................... X ........... ............. Mr. Ackerman ....................... X ........... .............

Mr. Jones ............................... X ........... ............. Mr. Sherman ........................ X ........... .............

Mrs. Biggert .......................... X ........... ............. Mr. Meeks ............................. X ........... .............

Mr. Gary G. Miller (CA) ......... X ........... ............. Mr. Capuano ........................ X ........... .............

Mrs. Capito ........................... X ........... ............. Mr. Hinojosa ......................... X ........... .............

Mr. Garrett ............................ X ........... ............. Mr. Clay ................................ X ........... .............

Mr. Neugebauer .................... X ........... ............. Mrs. McCarthy (NY) .............. X ........... .............

Mr. McHenry .......................... X ........... ............. Mr. Baca .............................. X ........... .............

Mr. Campbell ........................ X ........... ............. Mr. Lynch ............................. X ........... .............

Mrs. Bachmann .................... ........... ........... ............. Mr. Miller (NC) ..................... X ........... .............

Mr. McCotter ......................... X ........... ............. Mr. David Scott (GA) ............ X 

Mr. McCarthy (CA) ................ X ........... ............. Mr. Al Green (TX) ................. ........... ........... .............

Mr. Pearce ............................. X ........... ............. Mr. Cleaver ........................... X ........... .............

Mr. Posey .............................. X ........... ............. Ms. Moore ............................. ........... ........... .............

Mr. Fitzpatrick ....................... X ........... ............. Mr. Ellison ............................ X ........... .............

Mr. Westmoreland ................. X ........... ............. Mr. Perlmutter ...................... X ........... .............

Mr. Luetkemeyer .................... X ........... ............. Mr. Donnelly ......................... X ........... .............

Mr. Huizenga ......................... X ........... ............. Mr. Carson ........................... ........... ........... .............

Mr. Duffy ............................... X ........... ............. Mr. Himes ............................. X ........... .............

Ms. Hayworth ........................ X ........... ............. Mr. Peters ............................. X ........... .............

Mr. Renacci ........................... X ........... ............. Mr. Carney ............................ ........... ........... .............


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RECORD VOTE NO. FC–53—Continued 

Representative Aye Nay Present Representative Aye Nay Present 

Mr. Hurt ................................ X 

Mr. Dold ................................ X 

Mr. Schweikert ...................... X 

Mr. Grimm ............................. X 

Mr. Canseco .......................... X 

Mr. Stivers ............................ X 

Mr. Fincher ............................ X 

During the Committee consideration of H.R. 2779, the following 

amendment and motion were considered: 

1. An amendment offered by Ms. Moore and Mr. Stivers, no. 1, 

to narrow the scope of the affiliate exemption, provide a new definition of ‘‘affiliate,’’ preserve the Federal Reserve Act’s authority, protect insurance and guaranty funds, and allow the Securities and 

Exchange Commission (SEC) to prescribe rules to prevent evasion 

of the requirements of the Act, was agreed to by voice vote. 

2. A motion offered by Mr. Bachus to move the previous question 

on H.R. 2779 was agreed to by voice vote. 

COMMITTEE OVERSIGHT FINDINGS

Pursuant to clause 3(c)(1) of rule XIII of the Rules of the House 

of Representatives, the Committee has held hearings and made 

findings that are reflected in this report. 

PERFORMANCE GOALS AND OBJECTIVES

Pursuant to clause 3(c)(4) of rule XIII of the Rules of the House 

of Representatives, the Committee establishes the following performance related goals and objectives for this legislation: 

The objective of H.R. 2779 is to exempt inter-affiliate swaps and 

security-based swap trades from the margin, clearing, and reporting requirements of the Dodd-Frank Act. Inter-affiliate swaps are 

swaps and security-based swaps executed between entities under 

common corporate ownership. Inter-affiliate swaps allow a company with subsidiaries and affiliates to better manage risk by 

transferring the risk of its affiliates to a single affiliate and then 

executing swaps through that affiliate. Inter-affiliate swaps do not 

pose a systemic risk because they do not create additional counterparty exposures or increase the interconnectedness between parties 

outside the corporate group. Currently, companies use inter-affiliate swaps to combine positions and centrally hedge risk. This is 

accomplished by executing most or all of its external swaps or security-based swap trades through a single or limited number of affiliates. 

NEW BUDGET AUTHORITY, ENTITLEMENT AUTHORITY, AND

TAX EXPENDITURES

In compliance with clause 3(c)(2) of rule XIII of the Rules of the 

House of Representatives, the Committee adopts as its own the estimate of new budget authority, entitlement authority, or tax expenditures or revenues contained in the cost estimate prepared by 

the Director of the Congressional Budget Office pursuant to section 

402 of the Congressional Budget Act of 1974. 


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COMMITTEE COST ESTIMATE

The Committee adopts as its own the cost estimate prepared by 

the Director of the Congressional Budget Office pursuant to section 

402 of the Congressional Budget Act of 1974. 

CONGRESSIONAL BUDGET OFFICE ESTIMATE

Pursuant to clause 3(c)(3) of rule XIII of the Rules of the House 

of Representatives, the following is the cost estimate provided by 

the Congressional Budget Office pursuant to section 402 of the 

Congressional Budget Act of 1974: 

DECEMBER 14, 2011. 

Hon. SPENCER BACHUS, 

Chairman, Committee on Financial Services, 

House of Representatives, Washington, DC. 

DEAR MR. CHAIRMAN: The Congressional Budget Office has prepared the enclosed cost estimate for H.R. 2779, a bill to exempt 

inter-affiliate swaps from certain regulatory requirements put in 

place by the Dodd-Frank Wall Street Reform and Consumer Protection Act. 

If you wish further details on this estimate, we will be pleased 

to provide them. The CBO staff contact is Susan Willie. 

Sincerely, 

DOUGLAS W. ELMENDORF. 

Enclosure. 

H.R. 2779—A bill to exempt inter-affiliate swaps from certain regulatory requirements put in place by the Dodd-Frank Wall Street 

Reform and Consumer Protection Act 

The Dodd-Frank Wall Street Reform and Consumer Protection 

Act (Public Law 111–203) requires that participants in swap transactions meet certain clearing, reporting, and margin requirements 

as well as certain business conduct standards. (A swap is a contract that calls for an exchange of cash between two participants, 

based on an underlying rate or index or the performance of an 

asset). H.R. 2779 would exempt from the definition of a swap those 

transactions in which the parties are affiliates as defined in the 

bill; thus, affiliated parties that enter into swap transactions would 

be exempt from those clearing, reporting, margin and business conduct requirements. 

Neither the Commodity Futures Trading Commission nor the Securities and Exchange Commission (the agencies required to develop and enforce regulations related to swap transactions) has finalized regulations related to swap transactions. Based on information from the two agencies, CBO expects that incorporating the 

provisions of H.R. 2779 at this point in the regulatory process 

would not require a significant increase in the workload of either 

agency. Therefore, CBO estimates that any change in discretionary 

spending to implement the legislation, which would be subject to 

the availability of appropriated funds, would not be significant. Enacting H.R. 2779 would not affect direct spending or revenues; 

therefore, pay-as-you-go procedures do not apply. 

H.R. 2779 would impose an intergovernmental mandate as defined in the Unfunded Mandates Reform Act (UMRA) by prohibVerDate Mar 15 2010 05:41 Dec 28, 2011 Jkt 019006 PO 00000 Frm 00006 Fmt 6659 Sfmt 6602 E:\HR\OC\HR344P1.XXX HR344P1

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iting state regulators from requiring insurance companies to report 

their holdings of inter-affiliate swaps on their annual statements. 

Because the limit on state authority would not require the expenditure of funds, CBO estimates that the bill would impose no costs 

on state, local, or tribal governments. 

The bill contains no private-sector mandates as defined in 

UMRA. 

The CBO staff contact for this estimate is Susan Willie. The estimate was approved by Theresa Gullo, Deputy Assistant Director 

for Budget Analysis. 

FEDERAL MANDATES STATEMENT

The Committee adopts as its own the estimate of Federal mandates prepared by the Director of the Congressional Budget Office 

pursuant to section 423 of the Unfunded Mandates Reform Act. 

ADVISORY COMMITTEE STATEMENT

No advisory committees within the meaning of section 5(b) of the 

Federal Advisory Committee Act were created by this legislation. 

APPLICABILITY TO LEGISLATIVE BRANCH

The Committee finds that the legislation does not relate to the 

terms and conditions of employment or access to public services or 

accommodations within the meaning of the section 102(b)(3) of the 

Congressional Accountability Act. 

EARMARK IDENTIFICATION

H.R. 2779 does not contain any congressional earmarks, limited 

tax benefits, or limited tariff benefits as defined in clause 9 of rule 

XXI. 

SECTION-BY-SECTION ANALYSIS OF THE LEGISLATION

Section 1. Treatment of affiliate transactions 

This section amends Section 1(a)(47) of the Commodity Exchange 

Act, as added by Section 721(a)(21) of the Dodd-Frank Act, by stating that the term ‘‘swap’’ is not considered a ‘‘swap’’ as defined 

under Dodd-Frank so long as the transaction is between a party 

that is controlling, controlled by, or under common control with its 

counterparty. This section also requires that all swaps defined 

under the section shall be reported to a swap data repository, or 

if one does not exist, to the Commodity Futures Trading Commission within a time period to be prescribed by the Commission. 

This section also amends Section 3(a)(68) of the Securities Exchange Act of 1934, as added by Section 761(a)(6) of the DoddFrank Act, by stating that the term ‘‘security-based swap’’ is not 

considered a ‘‘security-based swap’’ for purposes of clearing and 

execution requirements; any applicable margin and capital requirements; defining a security-based swap dealer or a major securitybased swap participant; and reporting requirements other than the 

requirement that all transactions be reported to a security-based 

swap data repository or to the Securities and Exchange Commission within a time period to be prescribed by the Commission. 


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This section also preserves the power to regulate security-based 

swap transactions under Sections 23A and 23B of the Federal Reserve Act. This section also provides for protection of federal and 

state regulators of insurance and guaranty funds to exercise their 

existing authority to protect the integrity of a fund, except that 

such regulator shall not have the ability to subject security-based 

swaps to clearing and execution requirements, any applicable margin and capital requirements, or any reporting requirements established under the Dodd-Frank Act other than the reporting requirements already set forth in this section. Additionally, this section allows the SEC to prescribe rules to govern security-based swaps to 

prevent transactions from being structured as an affiliate transaction for the purposes of avoiding regulation under the DoddFrank Act. 

CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

In compliance with clause 3(e) of rule XIII of the Rules of the 

House of Representatives, changes in existing law made by the bill, 

as reported, are shown as follows (new matter is printed in italic 

and existing law in which no change is proposed is shown in 

roman): 

COMMODITY EXCHANGE ACT 

* * * * * * * 

SEC. 1a. DEFINITIONS. 

As used in this Act: 

(1) * * * 

* * * * * * * 

(47) SWAP.— 

(A) * * * 

* * * * * * * 

(G) TREATMENT OF AFFILIATE TRANSACTIONS.— 

(i) IN GENERAL.—The term ‘‘swap’’ does not include 

any agreement, contract, or transaction that— 

(I) would otherwise be included as a ‘‘swap’’ 

under subparagraph (A); and 

(II) is entered into by a party that is controlling, 

controlled by, or under common control with its 

counterparty. 

(ii) REPORTING.—All agreements, contracts, or transactions described in clause (i) shall be reported to either a swap data repository, or, if there is no swap 

data repository that would accept such swaps, to the 

Commission pursuant to section 4r within such time 

period as the Commission may by rule or regulation 

prescribe. 

* * * * * * * 


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SECURITIES EXCHANGE ACT OF 1934 

TITLE I—REGULATION OF SECURITIES EXCHANGES 

* * * * * * * 

DEFINITIONS AND APPLICATION OF TITLE

SEC. 3. (a) When used in this title, unless the context otherwise 

requires— 

(1) * * * 

* * * * * * * 

(68) SECURITY-BASED SWAP.— 

(A) * * * 

* * * * * * * 

(F) TREATMENT OF AFFILIATE TRANSACTIONS.— (i) IN GENERAL.—For the purposes of any clearing 

and execution requirements under sections 3C and any 

applicable margin and capital requirements of section 

15F(e), and for purposes of defining a security-based 

swap dealer or a major security-based swap participant, and reporting requirements other than those set 

forth in clause (ii), the term ‘‘security-based swap’’ does 

not include any agreement, contract, or transaction 

that— 

(I) would otherwise be included as a ‘‘securitybased swap’’ under subparagraph (A); and 

(II) is entered into by parties that report information or prepare financial statements on a consolidated basis, or for which an affiliated company 

reports information or prepares financial statements on a consolidated basis for both parties. 

(ii) REPORTING.—All agreements, contracts, or transactions described in clause (i) shall be reported to either a security-based swap data repository, or, if there 

is no security-based swap data repository that would 

accept such security-based swaps, to the Commission 

pursuant to section 13A within such time period as the 

Commission may by rule or regulation prescribe. 

(iii) PRESERVATION OF FEDERAL RESERVE ACT AUTHORITY.—Nothing in this subparagraph shall exempt 

a transaction described in this subparagraph from sections 23A or 23B of the Federal Reserve Act or implementing regulations thereunder. 

(iv) PROTECTION OF INSURANCE FUNDS.—Nothing in 

this subparagraph shall be construed to prevent the 

regulator of a Federal or State insurance fund or guaranty fund from exercising its other existing authority to 

protect the integrity of such a fund, except that such 

regulator shall not subject security-based swap transactions between affiliated companies to clearing and 

execution requirements under section 3C, to any applicable margin and capital requirements of section 

15F(e), or to reporting requirements other than those 

set forth in clause (ii). 


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(v) PREVENTION OF EVASION.—The Commission may 

prescribe rules under this subparagraph (and issue interpretations of rules prescribed under this subparagraph) as determined by the Commission to be necessary to include in the definition of security-based 

swap under this paragraph any agreement, contract, or 

transaction that has been structured as an affiliate 

transaction to evade the requirements of this Act applicable to security-based swaps. 

* * * * * * * 

Æ 


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