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[Federal Register Volume 76, Number 138 (Tuesday, July 19, 2011)]
[Rules and Regulations]
[Pages 42508-42534]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-18248]

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COMMODITY FUTURES TRADING COMMISSION

17 CFR Chapter 1

Effective Date for Swap Regulation

AGENCY: Commodity Futures Trading Commission.

ACTION: Final Order.

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SUMMARY: On June 17, 2011, the Commodity Futures Trading Commission 
(``CFTC'' or the ``Commission'') published for public comment in the 
Federal Register a proposed order that would grant, pursuant to the 
Commission's exemptive authority pursuant to the Commodity Exchange Act 
(``CEA''), certain temporary relief from the provisions of the CEA 
added or amended by title VII of the Dodd-Frank Wall Street Reform and 
Consumer Protection Act (``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 and do not require a 
rulemaking. The CFTC also proposed to grant temporary 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 the general effective date set forth in section 754 of 
the Dodd-Frank Act, July 16, 2011. Upon consideration of the full 
record, the Commission has determined to issue this final exemptive 
order (``Final Order'') essentially as proposed, with appropriate or 
necessary modification or clarification.

DATES: Effective July 14, 2011.

FOR FURTHER INFORMATION CONTACT: Terry Arbit, Deputy General Counsel, 
202-418-5120, tarbit@cftc.gov, or Harold Hardman, Deputy General 
Counsel, 202-418-5120, hhardman@cftc.gov, Office of the General 
Counsel, or Steven Kane, Consultant, 202-418-5911, skane@cftc.gov, 
Office of the Chief Economist, CFTC, Three Lafayette Centre, 1151 21st 
Street, NW., Washington, DC 20581.

SUPPLEMENTARY INFORMATION:

I. Background

    On July 21, 2010, President Obama signed the Dodd-Frank Act.\1\ 
Title VII of the Dodd-Frank Act amends the CEA \2\ 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 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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    \1\ See Dodd-Frank Wall Street Reform and Consumer Protection 
Act, Public Law. 111-203, 124 Stat. 1376 (2010).
    \2\ 7 U.S.C. 1 et seq.
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    Section 754 of the Dodd-Frank Act states that, unless otherwise 
provided, the provisions of subtitle A of title VII of the Dodd-Frank 
Act (``Title VII'') \3\ ``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 
provision of this subtitle.'' The date 360 days after the date of 
enactment is July 16, 2011.
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    \3\ 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, as of July 8, 2011, the Commission 
has issued 52 advance notices of proposed rulemaking or notices of 
proposed rulemaking, two interim final rules, six final rules, 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

[[Page 42509]]

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.\4\ The extended comment period closed on June 3, 2011. The 
Commission also has solicited public comments on the phasing of rule 
implementation (i.e., identifying which requirements can be met sooner 
and which ones will take more time).\5\
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    \4\ 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.
    \5\ 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. See http://www.cftc.gov/ucm/groups/public/@newsroom/documents/file/staffconcepts050211.pdf.
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    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.'' \6\ 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.\7\ The Commission has issued two notices of proposed 
rulemaking that address these further definitions.\8\
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    \6\ Section 712(d)(1) 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)).''
    \7\ 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'.''
    \8\ 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 and the applicability of various regulatory requirements to 
certain agreements, contracts, and transactions during the period 
between July 16, 2011 and the date(s) that those rulemakings have been 
completed. To address these concerns, and to ``strive to ensure that 
current practices will not be unduly disrupted during the transition to 
the new regulatory regime,'' \9\ the Commission proposed to exercise 
its authority under CEA section 4(c) and section 712(f) of the Dodd-
Frank Act.
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    \9\ 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 4(c) of the CEA, as amended by the Dodd-Frank Act, provides 
the Commission with authority to exempt certain agreements, contracts, 
and transactions (referred to hereafter collectively as 
``transactions'') that may otherwise be subject to the CEA from various 
provisions of the CEA.\10\ Section 712(f) of the Dodd-Frank Act states 
that ``in order to prepare for the effective dates of the provisions of 
this Act,'' including the general effective date set forth in section 
754, the Commission may ``exempt persons, agreements, contracts, or 
transactions from provisions of this Act, under the terms contained in 
this Act.'' 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).
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    \10\ 7 U.S.C. 6(c).
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    The provisions of Title VII can be grouped into four major 
categories: (1) Provisions that require a rulemaking (for which relief 
was not 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 was not proposed.
    Category 1 provisions are not self-effectuating because they 
require a rulemaking. A significant number of the Title VII provisions 
fall into this category. Examples of Category 1 provisions 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).\11\ Pursuant to section 754, the rulemakings 
to implement 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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    \11\ To be codified at 7 U.S.C. 6s(a), 6s(e) and 6s(h), 
respectively.
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    Because the Category 1 provisions are not self-effectuating as of 
July 16, 2011, it was not necessary for the Commission to propose 
relief with respect to the same. As noted above, the Category 1 
provisions will not go into effect until at least 60 days after 
publication of a final Commission rule in the Federal Register.\12\
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    \12\ As stated in footnote 5, supra, the Commission has 
discretion to phase-in implementation of new requirements in 
Category 1 rulemakings as well as rulemakings conducted with respect 
to Category 2 provisions. Accordingly, the Commission anticipates 
that it may establish compliance dates for the substantive 
requirements established in a rulemaking implementing Category 1 
provisions that differ from the effective date of the rulemaking. 
The effective date and compliance dates for each rulemaking will be 
determined in each rulemaking proceeding. Additionally, as stated in 
footnote 69, infra, the Commission has received and has solicited 
public comments with respect to the appropriate phase-in of the 
Dodd-Frank Act rulemaking requirements.
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    The Category 4 provisions also fell outside the scope of the 
proposed order. They are self-effectuating and do not require relief 
because, in the judgment of the Commission, compliance with these 
requirements upon the effective date will not cause undue disruption to 
affected transactions, markets, or entities, and a delay of the 
imposition of these statutory requirements would not be in the public 
interest.
    The proposed order, as well as lists of the Category 1 and Category 
4 provisions prepared by Commission staff, were published on the 
Commission's Web site (http://www.cftc.gov) on June 14, 2011. A list of 
the provisions in each of the four categories is provided in the 
Appendix to this Final Order.

II. The Proposed Order

    On June 14, 2011, the Commission issued a proposed order to provide 
temporary exemptive relief in two parts, each addressing one of the 
remaining categories of provisions 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

[[Page 42510]]

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. The Commission's proposed order was published in the 
Federal Register on June 17, 2011.\13\
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    \13\ See Effective Date for Swap Regulation, 76 FR 35372, June 
17, 2011.
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    With respect to part one of the proposed order addressing Category 
2 provisions, the Commission proposed to temporarily 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.'' \14\ CEA section 4d(f), as amended by section 724 of the 
Dodd-Frank Act, is an example of a Category 2 provision to which the 
exemption provided in the proposed order would extend.\15\
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    \14\ 76 FR at 35374. In footnote 15 of the proposed order, the 
Commission stated: ``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.'' Subsequently, a draft staff 
no-action letter that would provide such relief was posted on the 
Commission's Web site. See http://www.cftc.gov/ucm/groups/public/@newsroom/documents/file/noaction061411.pdf.
    \15\ To be codified at 7 U.S.C. 6d(f). Thus, for example, 
persons who accept money, securities or property (or extend credit 
in lieu thereof) from, for, or on behalf of a swaps customer to 
margin, guarantee, or secure a swap cleared by or through a 
derivatives clearing organization would not be required to register 
as futures commission merchants as otherwise required by section 
4d(f)(1) until the expiration of the exemption in part one of the 
proposed order.
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    The Commission made clear that 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. Further, the Commission stressed that the 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 
regulations pursuant to CEA section 4c(b) proscribing fraud.'' \16\
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    \16\ 76 FR at 35374. In footnote 16 of the proposed order, the 
Commission stated, ``The Dodd-Frank Act amended the CEA's anti-fraud 
and anti-manipulation provisions to cover `swaps.''' Examples of 
such provisions include the amendments to the antifraud provisions 
in CEA section 4b, 7 U.S.C. 6b, as well as the amendments set forth 
in section 746 of the Dodd-Frank Act, which enacted certain insider 
trading prohibitions that apply to, among other things, futures 
contracts and swaps. The Commission stated: ``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).''
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    The Commission also placed other limitations on the relief in part 
one of the proposed order. First, the Commission stated that the relief 
would not apply to any provisions of Title VII and the CEA that have 
become effective prior to July 16, 2011 or to Commission regulations 
already issued.\17\ Further, the relief would not affect any effective 
date set out in any specific Dodd-Frank Act rulemaking by the 
Commission.\18\ 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.\19\ 
Finally, the Commission stated that the proposed order would not affect 
the applicability of any provision of the CEA to futures contracts or 
options on futures contracts.\20\
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    \17\ 76 FR at 35374. In footnote 17 of the proposed order, the 
Commission included the following citation: ``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\ 76 FR at 35374.
    \19\ Id.
    \20\ Id. In footnote 18 of the proposed order, the Commission 
stated: ``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 Commission proposed that the 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.\21\ In proposing to limit the relief to no more than a fixed 
period (i.e., December 31, 2011), the Commission provided the following 
reasons:
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    \21\ 76 FR at 35374.

    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.
    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].'' 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.'' 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.\22\
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    \22\ 76 FR at 35375 (footnotes omitted).

    In the proposed order, the Commission reiterated its intent: (1) 
That existing practices should not be unduly disrupted during any 
transition period; and (2) to deliberatively and efficiently proceed to 
complete the rulemakings to implement the Dodd-Frank Act.\23\ As to 
timing, the Commission proposed that in the event that a further 
definitions rulemaking is completed prior to December 31, 2011, the 
Commission will at the time of such

[[Page 42511]]

rulemaking address the appropriate phase-in and implementation dates of 
the resulting regulatory requirements. Alternatively, the Commission 
stated, 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.\24\
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    \23\ Id.
    \24\ Id.
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    With respect to part two of the proposed order addressing Category 
3 provisions, the Commission's proposed order identified the existing 
provisions of the CEA that currently exclude or exempt, in whole or in 
part, certain transactions from Commission oversight under the CEA.\25\ 
These are as follows:
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    \25\ Id.

    i. Section 2(d)(1),\26\ transactions in excluded commodities 
\27\ between eligible contract participants and not executed or 
traded on a trading facility;
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    \26\ 7 U.S.C. 2(d)(1).
    \27\ 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.
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    ii. Section 2(d)(2),\28\ 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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    \28\ 7 U.S.C. 2(d)(2).
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    iii. Section 2(g),\29\ 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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    \29\ 7 U.S.C. 2(g).
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    iv. Sections 2(h)(1)-(2),\30\ transactions in exempt commodities 
\31\ between eligible contract participants and not entered into on 
a trading facility;
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    \30\ 7 U.S.C. 2(h)(1)-(2).
    \31\ 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.
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    v. Sections 2(h)(3)-(7),\32\ principal-to-principal transactions 
in exempt commodities between eligible commercial entities \33\ and 
executed or traded on an electronic trading facility (called exempt 
commercial markets, or ``ECMs'');
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    \32\ 7 U.S.C. 2(h)(3)-(7).
    \33\ The term ``eligible commercial entity'' is defined in CEA 
section 1a(11), 7 U.S.C. 1a(11).
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    vi. Section 5d,\34\ transactions in commodities, among other 
things, having a nearly inexhaustible deliverable supply or no cash 
market, between eligible contract participants and traded on an 
exempt board of trade (``EBOT''); and
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    \34\ 7 U.S.C. 7a-3.
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    vii. Section 2(e),\35\ 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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    \35\ 7 U.S.C. 2(e).

    Under the Dodd-Frank Act, these provisions will be removed from the 
CEA as of July 16, 2011. However, the Commission noted that part 35 of 
the Commission's regulations,\36\ and part 32 with respect to 
options,\37\ will continue to be available with respect to transactions 
that meet the conditions therein, until such time as they may be 
withdrawn, amended, or replaced by the Commission.\38\
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    \36\ 17 CFR 35.1 et seq.
    \37\ 17 CFR 32.1 et seq.
    \38\ 76 FR at 35375 and 35376 n.36.
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    As the Commission stated in the proposed order, part 35 originally 
was promulgated in 1993 pursuant to, among others, the Commission's 
general exemptive authority in CEA section 4(c) and authority under 
section 4c(b), and provides a broad-based exemption from the CEA for 
``swap agreements'' in any commodity.\39\ 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''); \40\ (2) they are not part of a fungible class of 
agreements standardized as to their material economic terms; \41\ (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; \42\ and (4) they 
are not entered into or traded on a multilateral transaction execution 
facility.\43\ The Commission stated that transactions fully meeting the 
conditions of part 35 are outside the scope of the proposed order.\44\
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    \39\ The Commission notes, as discussed infra, that part 35 was 
originally promulgated in part pursuant to the Commission's plenary 
options authority in CEA section 4c(b), 7 U.S.C. 6c(b).
    \40\ The parties covered under the ESP definition, while very 
broad, are not coextensive with those covered by the terms 
``eligible commercial entity'' 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.
    \41\ 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, 5590, Jan. 22, 1993.
    \42\ 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.
    \43\ 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.
    \44\ 76 FR at 35376. In footnote 36, the proposed order also 
stated that ``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.
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    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. Therefore, and 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 CEA section 4(c), proposed to grant relief for those 
transactions that satisfy certain criteria specified below.\45\
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    \45\ 76 FR at 35376.
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    Specifically, the Commission proposed 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'').\46\
---------------------------------------------------------------------------

    \46\ Id. In footnote 37, the proposed order stated that 
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.''

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[[Page 42512]]

    As the Commission noted, the proposed temporary exemptive relief 
would not affect the availability of either parts 35 or 32 with respect 
to transactions that fully meet the conditions therein.\47\ For 
transactions that fall outside of existing parts 35 or 32, the 
Commission made clear that the proposed 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 or the line of business provision.\48\
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    \47\ 76 FR at 35376. In addition, in September 2010, the 
Commission published an order in the Federal Register providing that 
it would extend grandfather relief, as provided in sections 723(c) 
and 734(c) of the Dodd-Frank Act, 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 
(``grandfather relief orders''). The Commission stated that nothing 
in the proposed order was intended to impact the availability of the 
independent grandfather relief provided in the grandfather relief 
orders. Id. at n.38.
    \48\ 76 FR at 35376. The Commission stated in footnote 39 of the 
proposed order that the 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 2(h)(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 part two of the 
proposed order, the Commission stated that 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 regulations pursuant to CEA section 4c(b) proscribing 
fraud.'' \49\ Additionally, the Commission stated that the 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.\50\ With respect to timing, the Commission 
proposed that this temporary exemptive relief would expire upon the 
earlier of: (1) December 31, 2011; or (2) the repeal or replacement of 
parts 35 or 32, as applicable.\51\ The Commission also specified that 
the exemptive relief in part two of the proposed order would operate 
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.\52\
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    \49\ 76 FR at 35376. In so doing, the Commission noted that 
``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.'' Id. at n.40.
    \50\ 76 FR at 35376. The Commission noted that 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. Id. 
at n.41.
    \51\ 76 FR at 35376.
    \52\ Id.
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III. Comments on the Proposed Relief and Commission Determinations

A. Comments Generally

    The Commission requested comment on all aspects of the proposed 
order, including whether the proposed temporary exemptions are 
consistent with the public interest and other requirements of CEA 
section 4(c).\53\ The Commission received 19 comment letters from a 
variety of interested parties, including market participants and trade 
associations, trading platforms and clearing organizations, futures and 
derivatives committees of bar associations, a law firm, and a non-
governmental public interest organization.\54\
---------------------------------------------------------------------------

    \53\ 76 FR at 35377.
    \54\ Comments unrelated to the proposed order will not be 
evaluated here, but will inform the Commission as it proceeds with 
its Dodd-Frank Act rulemakings.
---------------------------------------------------------------------------

    The majority of commenters generally supported the Commission 
taking action to provide clarity and exemptive relief with respect to 
the July 16 effective date. For example, the American Feed Industry 
Association (``AFIA'') described the proposed order as ``a prudent 
move'' to ``ensure current practices for bona fide hedgers and end-
users of agricultural commodities are not unduly disrupted during the 
transition.'' \55\ Better Markets, Inc. (``Better Markets'') described 
the proposed relief as ``appropriate and reasonable,'' and said that a 
limited delay is ``consistent with the Dodd-Frank Act, informed 
rulemaking and the goal of financial reform.'' \56\ The Alternative 
Investment Management Association (``AIMA'') commented that the 
proposed order was ``clear and provide[s] sufficient guidance for 
persons and entities to know which rules fall within the order and 
which do not.'' \57\ The National Grain and Feed Association (``NGFA'') 
commended the agency ``for taking steps to ensure the continued 
availability of important risk management tools used by hedgers in the 
grain, feed and processing industry.'' \58\
---------------------------------------------------------------------------

    \55\ See letter dated June 28, 2011, from Joel G. Newman, 
President and Chief Executive Officer, AFIA, at p. 1.
    \56\ See letter dated July 1, 2011, from Dennis M. Kelleher, 
President and Chief Executive Officer and Wallace C. Turbeville, 
Derivatives Specialist, Better Markets, at pp. 1, 2.
    \57\ See letter dated July 1, 2011, from Jiri Krol, Director of 
Government & Regulatory Affairs, AIMA, at page 2.
    \58\ See letter dated July 1, 2011, from Matt Bruns, Chair, Risk 
Management Committee, NGFA, at p. 1.
---------------------------------------------------------------------------

    Commenters also suggested various modifications or clarifications 
of the proposed order to address specific issues related to the scope 
or basis for the proposed exemptive relief. These issues, which are 
discussed in the remainder of this section below, include: (1) The 
scope of temporary relief; (2) the expiration date; (3) coverage of 
commodity options and agricultural swaps; (4) coverage of eligible 
contract participants; (5) private rights of action; (6) preemption; 
(7) market issues; (8) core principles; (9) intermediary issues; and 
(10) the scope of ``appropriate persons'' under CEA section 4(c). After 
considering the complete record in this matter, the Commission has 
determined that the requirements of CEA section 4(c) have been met. For 
the reasons discussed below, the Commission deems it in the public 
interest to issue this Final Order substantially as proposed, except 
for certain clarifications set forth in the discussion in this section 
below, which the Commission deems appropriate or necessary upon due 
consideration of the comments received.

B. Scope of Temporary Relief

1. Comments
    Several commenters expressed general support for the Commission's 
effort to provide exemptive relief but urged the Commission to use what 
they stated to be the Commission's broad authority to grant a more 
comprehensive relief. For example, the Committee on Futures and 
Derivatives Regulation of the New York City Bar Association (``NYCBA'') 
stated that the Commission has ``ample'' authority, either based solely 
on CEA Section 4(c) or as supplemented by section 754 and section 
712(f) of the Dodd-Frank Act, to

[[Page 42513]]

delay the effective date of the Dodd-Frank Act provisions until the 
effective date of the related implementing regulations.\59\ Similarly, 
the Derivatives and Futures Law Committee of the Business Law Section 
of the American Bar Association (``ABA Derivatives Committee'') stated 
that sections 754 and 712(f), as well as CEA section 4(c), authorize 
the Commission to temporarily grant relief from the Dodd-Frank Act 
until all necessary final rulemakings, including rulemakings as to 
definitions, are in place.\60\ Finally, BG Americas & Global LNG 
(``BGA'') contends that section 721(f) of the Dodd-Frank Act authorizes 
the Commission to extend exemptive relief with respect to CEA sections 
4s(l) (collateral segregation requirements for uncleared swaps) and 
4s(k) (duties and designation of a chief compliance officer).\61\
---------------------------------------------------------------------------

    \59\ See letter dated June 30, 2011, from Timothy P. Selby, 
Chair, NYCBA, at p. 3. NYCBA asserted that the requirement in 
section 712(f)(4) that exemptions be made ``under the terms of the 
Act'' is intended to require that they be made under the provisions 
establishing or limiting regulatory authority under the Dodd-Frank 
Act as a whole, rather than referring to the substance of the 
exemptive authority available under provisions of the CEA. Id. at p. 
4.
    \60\ See ABA Derivatives Committee at pp. 2-3. The ABA 
Derivatives Committee stated that the Commission's exemptive 
authority under the Dodd-Frank Act is broader than the exemptive 
authority specifically conferred by the CEA, especially in light of 
the different language of section 712(e) as compared to section 
712(f). Id. at p. 5.
    \61\ See letter dated July 1, 2011, from Lisa Yoho, Director, 
Regulatory Affairs and Matt Schatzman, Senior Vice President, Energy 
Marketing, BGA, at pp. 9-10. As discussed in footnote 14, supra, the 
Commission believes that its authority to provide exemptive relief 
under section 4(c), as amended by section 721(d) of the Dodd-Frank 
Act, may not extend to certain Category 2 provisions, such as CEA 
sections 4s(l) and 4s(k), though the Commission is informed that 
staff is separately considering a no-action letter with respect to 
these provisions.
---------------------------------------------------------------------------

    The Commission also received comments requesting modification or 
clarification regarding the categorization of certain provisions of the 
Dodd-Frank Act.\62\ Specifically, seven trade associations 
(collectively, the ``Associations'') filed a joint comment letter 
contending that many provisions in Categories 1 and 2 are 
interdependent with related rulemakings (including those relating to 
definitions) and, thus, should be extended exemptive relief until all 
of the mutually-interdependent rulemakings have been completed.\63\ The 
ABA Derivatives Committee believes that Category 2 provisions also are 
Category 1 provisions because they require the definitional rulemakings 
to be completed.\64\
---------------------------------------------------------------------------

    \62\ See generally letter dated July 1, 2011, from David M. 
Perlman, Bracewell & Giuliani LLP, on behalf of the Coalition of 
Physical Energy Companies, at p. 3 (requesting statement that the 
Commission intends to preserve the legal status quo for the swaps 
market unless and until it affirmatively and systematically makes 
changes).
    \63\ See letter dated July 1, 2011, from American Bankers 
Association, ABA Securities Association, Futures Industry 
Association, Institute of International Bankers, International Swaps 
and Derivatives Association, Investment Company Institute, and 
Securities Industry and Financial Markets Association, at p. 4.
    \64\ See ABA Derivatives Committee at p. 3.
---------------------------------------------------------------------------

    Commenters addressing the proposed relief for Category 3 provisions 
urged that the Commission use its broad authority under CEA section 
4(c) and section 712(f) of the Dodd-Frank Act to amend part 35 of the 
Commission's regulations to provide blanket exemptive relief.\65\ The 
NYCBA recommended that the Commission preserve the current ``safe 
harbors'' in CEA sections 2(d), 2(e), 2(g), 2(h) and 5d until the 
effective date of the applicable final rules with certain 
clarifications, and that such ``safe harbors'' should be available even 
if the subject transaction is cleared.\66\
---------------------------------------------------------------------------

    \65\ See, e.g., letter dated July 1, 2011, from R. Michael 
Sweeney, Jr., Hunton & Williams, on behalf of the Working Group of 
Commercial Energy Firms (``CEF''), at pp. 3-4. In the alternative, 
CEF recommends that at a minimum, the Commission use its authority 
under sections 723(c)(l)-(2) to provide grandfather relief to all 
persons who transact, operate, or otherwise rely on current CEA 
section 2(h) as well as all transactions subject to this provision, 
for a six-month period commencing on July 16, 2011. CEF states that 
the Commission may rely on section 712(f) as well as sections 
723(c)(l)-(2) to exempt persons relying on current CEA sections 
2(h)(l)-(2) in carrying out their bilateral exempt commodity 
transactions, for up to a one year period, following the effective 
date. CEF at p. 4.
    \66\ NYCBA at pp. 6-8.
---------------------------------------------------------------------------

2. Commission Determination
    As stated in the proposed order, a significant number of Dodd-Frank 
Act provisions are not self-effectuating and, thus, it is not necessary 
to provide relief with respect to such provisions (i.e., Category 1). 
With respect to the provisions of the Dodd-Frank Act in Categories 2 or 
3, the Commission has determined to use its authority to issue this 
exemptive relief under section 712(f) of the Dodd-Frank Act co-
extensively with its exemptive authority under the CEA.\67\ The 
exemptive relief will allow markets and market participants to continue 
to operate under the regulatory regime as in effect prior to July 16, 
2011, but subject to various implementing regulations that the 
Commission promulgates and applies to the subject transactions, market 
participants, or markets.
---------------------------------------------------------------------------

    \67\ See CEA sections 4(c) and 4c(b).
---------------------------------------------------------------------------

    This temporary relief, in the Commission's judgment, is 
appropriately tailored to enable the Commission to continue to 
implement the Dodd-Frank Act in an expeditious manner, while minimizing 
undue disruption and uncertainty for the markets and market 
participants during the transition period. In this regard, the 
Commission reiterates that, in considering the appropriate phase-in of 
its various Dodd-Frank Act implementing regulations, it intends to 
continue to ``strive to ensure that current practices will not be 
unduly disrupted during the transition to the new regulatory 
regime.''\68\ While the sequencing of the final rules is beyond the 
scope of this Final Order, the interdependencies of the various 
rulemakings will be a consideration in determining the implementation 
date for each final rule.\69\
---------------------------------------------------------------------------

    \68\ See Grandfather Notice, supra, n.9.
    \69\ During the Dodd-Frank Act rulemaking process the Commission 
has received a number of comments recommending that the Commission 
appropriately sequence the effective dates and compliance dates 
under the various Dodd-Frank Act rulemakings. As noted in footnote 
5, supra, the Commission already has held a roundtable and solicited 
public comments with respect to the appropriate phase-in of the 
Dodd-Frank Act rulemaking requirements. Prior to the roundtable, on 
April 29, 2011, CFTC staff released a document that set forth 
concepts that the Commission may consider with regard to the 
effective dates of final rules for swaps under the Dodd-Frank Act. 
The Commission therefore anticipates that the determinations 
regarding the phase-in of compliance dates for and within the 
various rulemakings will continue to be informed by the Commission's 
further consideration of this issue, including public comments.
---------------------------------------------------------------------------

C. Expiration Date

1. Comments
    The proposed order included an outermost, fixed expiration date for 
parts one and two of the exemptive relief. Part one would expire on the 
earlier of: (1) The effective date of the applicable final rule further 
defining the relevant term; or (2) December 31, 2011. Part two of the 
proposed order would expire on the earlier of: (1) December 31, 2011; 
or (2) the repeal or replacement of part 35 of the Commission's 
regulations. In the proposed order, the Commission explained that 
setting an expiration date was ``appropriate to periodically re-examine 
the scope and extent of the proposed exemptive relief'' and that ``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'' in section 723(c) and section 734 of the 
Dodd-Frank Act.\70\
---------------------------------------------------------------------------

    \70\ 76 FR at 35375.
---------------------------------------------------------------------------

    Better Markets generally supported the expiration date because it 
believes that it is extremely important for the

[[Page 42514]]

Commission to have the ability to assess conditions related to 
implementation as they evolve over the next six months.\71\ Conversely, 
the ABA Derivatives Committee, AIMA, the Associations, CME Group Inc. 
(``CME''), and MarketAxess Holdings Inc. (``MarketAxess'') argued that 
a predetermined global expiration date was not necessary and the 
Commission should provide that the temporary relief will expire for a 
given rule only upon the effective date (or compliance date, if later) 
of the applicable final rule.\72\
---------------------------------------------------------------------------

    \71\ See Better Markets at p. 2.
    \72\ See ABA Derivatives Committee at p. 6; AIMA at p. 2; 
Associations at p. 6; letter dated July 1, 2011, from Craig S. 
Donohue, Chief Executive Officer, CME, at p. 2; letter dated June 
29, 2011, from Richard McVey, Chairman and Chief Executive Officer, 
MarketAxess, at p. 2.
---------------------------------------------------------------------------

    In the event the Commission decides to include an expiration date, 
the NYCBA and ABA Derivatives Committee believe that the Commission 
should revise the proposed order to trigger the effectiveness of the 
relevant provision only when both the definitional rulemaking and the 
substantive rulemaking for the relevant provision become effective.\73\ 
Similarly, the Associations and CME urged the Commission, at a minimum, 
to extend the expiration date to July 2012, consistent with the 
transitional period specified in sections 723(c) and 734 of the Dodd-
Frank Act.\74\ Finally, to address a perceived ``potential gap 
period,'' the NYCBA and ABA Derivatives Committee believe that the 
order should contain language specifically addressing situations where 
final rules are adopted within 60 days before December 31, 2011, or 
where a final rule otherwise has a prescribed effective date after 
December 31, 2011.\75\
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    \73\ See NYCBA at p. 4; ABA Derivatives Committee at p. 7.
    \74\ See Associations at p. 6, n.11; CME at p. 2.
    \75\ See NYCBA at p. 5; ABA Derivatives Committee at pp. 7-8. 
NYCBA and the ABA Derivatives Committee proposed the following 
language: ``This order shall expire on (1) December 31, 2011, with 
respect to any provision for which final rules (including final 
definitional rules) were not adopted on or before December 31, 2011, 
or (2) with respect to any provision for which final rules 
(including final definitional rules) were adopted on or before 
December 31, 2011, on the later of the effective date of all final 
definitional rules used in the provision and the effective date of 
the provision as set forth in the final rules adopting such 
provision.''
---------------------------------------------------------------------------

2. Commission Determination
    The Commission has determined, for the reasons discussed in the 
proposed order, not to alter the expiration date(s) contained in the 
proposed order. An automatic expiration date of no later than December 
31, 2011, will allow the Commission to review the extent and scope of 
relief provided from the CEA on a measured basis. Should the Commission 
deem it appropriate to extend any exemptive relief, the Commission will 
be in a better position to tailor any exemption at that time. Further, 
as noted in the proposed order, limiting exemptive relief to a fixed 
period is consistent with the approach to transitional relief provided 
in sections 723(c) and 734 of the Dodd-Frank Act. With regard to any 
concerns over a potential ``gap period'' before or after the expiration 
date of December 31, 2011, the Commission notes that it can address 
compliance date concerns within the context of each individual 
rulemaking. Once again, the Commission will be able to act in a 
measured manner tailored to the particular statutory and regulatory 
provisions.

D. Commodity Options and Agricultural Swaps

1. Comments
    Several commenters requested that the Commission clarify that the 
relief based on part 35 in part two of the proposed order, which 
applies to certain transactions in exempt and excluded commodities, 
covers commodity options.\76\ The ABA Derivatives Committee also 
requested that the Commission expand the relief based on part 35 in 
part two of the proposed order to include swaps and options in 
agricultural commodities.\77\ Finally, commenters including various 
energy companies urged the Commission to rely, in part, upon CEA 
section 4c(b) as authority to issue the elements of the relief related 
to options, stating that the Commission retains its plenary authority 
to regulate commodity options under CEA section 4c(b) \78\ and that 
section 4c(b) was unaltered by the Dodd-Frank Act.\79\ The NGFA, 
though, noted that the proposed order addressed concerns it had 
regarding the availability of certain option-based transactions until 
final rules authorizing their continued use are published.\80\
---------------------------------------------------------------------------

    \76\ See CEF at p. 5; ABA Derivatives Committee at p. 12; BGA at 
p. 8.
    \77\ See ABA Derivatives Committee at pp. 9, 11-13; letter dated 
June 29, 2011, from Paul J. Pantano, Jr., and Athena Eastwood, 
Cadwalader, Wickersham & Taft LLP, on behalf of the Commodity 
Options and Agricultural Swaps Working Group, at p. 2.
    \78\ See CEF at p. 5, n.12.
    \79\ See ABA Derivatives Committee at pp. 10-11; BGA at p. 8, 
n.22.
    \80\ See NGFA at p. 1.
---------------------------------------------------------------------------

2. Commission Determination
    With respect to options, the Commission is clarifying that the 
relief in part two of the Final Order that is based on part 35 applies 
to commodity options on excluded and exempt commodities to the extent 
they were permitted by the applicable statutory exemptions and 
exclusions in effect prior to July 16, 2011. As reflected in the 
commenters' citations to Sec.  35.1 of the Commission's regulations, 
the text of paragraph (b)(1) of the ``swap agreement'' definition in 
the rule lists several types of options, including, but not limited to, 
currency options, interest rate options, and rate caps and collars, and 
includes the following text: ``any other similar agreement (including 
any option to enter into any of the foregoing).'' \81\
---------------------------------------------------------------------------

    \81\ 17 CFR 35.1(b)(1)(i). In addition to the options 
specifically identified in the swap agreement definition, in the 
part 35 adopting release, the Commission stated that ``[t]he words 
`any similar agreement' in the definition includes any agreement 
with a similar structure to those transactions expressly included in 
the definition (e.g., a cap, collar, or floor) without regard to the 
nature of the underlying commodity interest involved.'' Exemption 
for Certain Swap Agreements, 58 FR 5587, 5589 n.16, Jan. 22, 1993. 
The Commission also said that ``[i]n enacting this exemptive rule, 
the Commission is also acting under its plenary authority under 
section 4c(b) of the Act with respect to swap agreements that may be 
regarded as commodity options.'' Id. at 5589.
---------------------------------------------------------------------------

    Under part two of the Final Order, transactions in exempt or 
excluded commodities (and persons offering, entering into, or rendering 
advice or rendering other services with respect to such transactions) 
will be temporarily exempt from the CEA if such transactions 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 
the enactment of the Dodd-Frank Act); (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 options identified in the swap agreement definition and any 
options captured by the concluding catch-all language, as well as any 
options described in paragraphs (b)(1)(ii) \82\ and/or (iii) \83\ of 
Sec.  35.1 of the

[[Page 42515]]

Commission's regulations, involving excluded or exempt commodities are, 
therefore, within the scope of the Final Order.\84\
---------------------------------------------------------------------------

    \82\ Paragraph (b)(1)(ii) of Sec.  35.1 defines ``any 
combination of the foregoing [list of identified swap agreements]'' 
as a swap agreement.
    \83\ Paragraph (b)(1)(iii) of Sec.  35.1 defines ``[a] master 
agreement for any of the foregoing [list of identified swap 
agreements] together with all supplements thereto'' as a swap 
agreement.
    \84\ In addition to CEA section 4(c) and section 712(f) of the 
Dodd-Frank Act, CEA section 4c(b), 7 U.S.C. 6c(b) also provides the 
Commission with authority to issue the temporary exemptive Order 
with respect to commodity options. Section 4c(b), which was 
unaltered by the Dodd-Frank Act, provides the Commission plenary 
authority to regulate commodity options. Parts 32 and 35 were 
issued, in part, based on the Commission's authority under CEA 
section 4c(b).
---------------------------------------------------------------------------

    With respect to agricultural commodities, part 35 is not currently 
available for option transactions on the agricultural commodities 
enumerated in either CEA section 1a(4) \85\ or Sec.  32.2 of the 
Commission's regulations \86\ (the ``Enumerated Agricultural 
Commodities''). Such option transactions may occur only pursuant to the 
agricultural trade option exemption in Sec.  32.13 of the Commission's 
regulations.\87\ As the Commission noted when it adopted Sec.  32.13 as 
an interim final rule, which it later adopted as a final rule:
---------------------------------------------------------------------------

    \85\ 7 U.S.C. 1a(4).
    \86\ 17 CFR 32.2.
    \87\ 17 CFR 32.13. The Commission notes that the NGFA comment 
letter generally supported the Commission's approach ``to preserve 
the availability of certain option-based transactions such as * * * 
OTC options until final rules authorizing their continued use are 
published.'' See NGFA at p. 1.

[o]ne commenter representing swaps dealers requested that the 
Commission clarify that the part 35 exemption applies to off-
exchange agricultural options rather than this exemption [17 CFR 
Sec.  32.13(g)]. The Commission disagrees. Any off-exchange option 
on an enumerated agricultural commodity must comply with Commission 
rule 32.13(g) for exemption from the Act and Commission rules, and 
no other exemptive provision is available.'' \88\
---------------------------------------------------------------------------

    \88\ See Trade Options on the Enumerated Agricultural 
Commodities, 63 FR 18821, 18829, Apr. 16, 1998. Sec.  32.13(a) 
technically also would be available to persons satisfying its terms. 
However, that would require such persons to register as agricultural 
trade option merchants (``ATOMs'') and comply with the ATOM 
regulatory regime. Only one firm has ever registered as an ATOM, and 
it later withdrew its registration. Currently, no firm is registered 
as an ATOM. The Commission recently proposed to repeal Sec.  32.13. 
See Commodity Options and Agricultural Swaps, 76 FR 6095, Feb. 3, 
2011.

    Accordingly, part 35 may not be relied upon for options in the 
Enumerated Agricultural Commodities. As the Commission noted in the 
proposed order, though, 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.\89\ The Commission 
further stated in the proposed order that the purpose of the proposed 
relief is to ``strive to ensure that current practices will not be 
unduly disrupted during the transition to the new regulatory regime.'' 
\90\ Accordingly, the Commission is clarifying that part two of this 
Final Order does not apply to options on Enumerated Agricultural 
Commodities.
---------------------------------------------------------------------------

    \89\ 76 FR at 35376 n.36.
    \90\ 76 FR at 35373, quoting Grandfather Notice, supra, n. 9 
(emphasis added).
---------------------------------------------------------------------------

    Part 35, however, always has covered swap agreements (other than 
options) on the Enumerated Agricultural Commodities and swap agreements 
(including options) \91\ on non-enumerated agricultural commodities 
(e.g., coffee, sugar, cocoa). As the Commission noted in the proposed 
order, part 35 will continue to be available with respect to 
transactions that meet the conditions therein, until such time as it 
may be withdrawn, amended, or repealed by the Commission.\92\
---------------------------------------------------------------------------

    \91\ Options on non-enumerated agricultural commodities may be 
conducted pursuant to part 35, as the agricultural trade option 
rules in Sec.  32.13 apply only to options on the Enumerated 
Agricultural Commodities.
    \92\ 76 FR at 35375.
---------------------------------------------------------------------------

    For certain transactions, part two of this Final Order provides 
relief notwithstanding that the transaction may not satisfy certain 
part 35 requirements (e.g., cleared, executed on a multilateral trade 
execution facility, entered into by certain persons that are not 
eligible contract participants, etc.).\93\ This relief is limited to 
transactions in exempt and excluded commodities, and does not extend to 
transactions in agricultural commodities (enumerated or non-
enumerated). As stated in the proposed order, the purpose of part two 
of the Final Order is to provide relief with respect to CEA provisions 
that will be repealed as of July 16, 2011--specifically, current CEA 
sections 2(d), 2(e), 2(g), 2(h), and 5d. These provisions apply only to 
transactions in exempt and excluded commodities, and do not encompass 
agricultural commodities. Thus, because transactions in agricultural 
commodities cannot today be executed in reliance on one or more of 
these provisions to be repealed on July 16, extending part two of the 
Final Order to transactions in agricultural commodities is not 
necessary to ``strive to ensure that current practices will not be 
unduly disrupted during the transition to the new regulatory regime.'' 
\94\
---------------------------------------------------------------------------

    \93\ Id. at 35376.
    \94\ See supra, n.9. The Commission has in the past granted 
exemptive relief pursuant to CEA section 4(c) from the requirements 
of part 35 to permit the clearing of certain agricultural basis and 
calendar swaps. See orders granted to ICE Clear US, Inc., 73 FR 
77015, Dec. 18, 2008; Chicago Mercantile Exchange, 74 FR 12316, Mar. 
24, 2009; and Kansas City Board of Trade, 75 FR 34983, June 21, 
2010. Part two of this Final Order does not apply; however, parties 
may continue to rely on these prior orders to the extent their 
transactions fully comply with them.
---------------------------------------------------------------------------

    In sum, the Commission is clarifying that the temporary exemptive 
relief in part two of the Final Order that is based on part 35 applies 
to commodity options on excluded and exempt commodities to the extent 
that these transactions were permitted by the applicable statutory 
exclusions and exemptions in effect prior to July 16, 2011. It does not 
apply, however, with respect to swaps and commodity options on 
agricultural commodities (enumerated or non-enumerated). Market 
participants may continue to rely on part 35 with respect to swaps and 
commodity options on non-enumerated agricultural commodities, as well 
as swaps (other than commodity options) on Enumerated Agricultural 
Commodities, to the extent these transactions fully comply with part 
35. Market participants also may continue to rely on part 32 for 
options on Enumerated Agricultural Commodities to the extent these 
transactions are conducted in accordance with Sec.  32.13(g) of the 
Commission's regulations.

E. Eligible Contract Participants

1. Comments
    First, with respect to the amendments that the Dodd-Frank Act made 
to the existing definition of the term ``eligible contract 
participant'' in the CEA, the NYCBA asked the Commission to confirm 
that these changes are subject to exemptive relief under the Final 
Order.\95\ The ABA Derivatives Committee believes that because the term 
``eligible contract participant'' expressly requires rulemaking, the 
amendments to the existing CEA definition would not take effect even in 
the absence of exemptive relief; it asked that the Final Order confirm 
this.\96\ Comment letters from various energy companies supported the 
request of the ABA Derivatives Committee in this regard.\97\
---------------------------------------------------------------------------

    \95\ See NYCBA at p. 5.
    \96\ See ABA Derivatives Committee at p. 8.
    \97\ See CEF at p. 8; BGA at p. 6.
---------------------------------------------------------------------------

    The Associations requested that the Commission confirm that 
amendments to CEA sections 2(c)(2)(B), 2(c)(2)(C), and 2(c)(2)(E) 
regarding off-exchange foreign currency (``forex'') transactions with 
retail customers will not become effective until relevant required

[[Page 42516]]

rulemakings have been completed.\98\ The Associations requested that 
the Commission confirm that, notwithstanding its general classification 
of the Dodd-Frank Act's retail forex amendments as Category 4 
provisions, it will regard the specific provisions that relate to the 
definition of the term ``eligible contract participant'' as Category 1 
provisions.\99\ The Associations believe that CEA Section 2(c)(2)(E) 
also should be treated as a Category 1 provision because it explicitly 
requires rulemakings by other financial regulatory agencies. 
Alternatively, the Associations stated, these provisions fall in 
Category 2 because they depend on the definition of the term ``eligible 
contract participant,'' and thus should be subject to section 4(c) 
exemptive relief.\100\ The Associations requested, if the Commission 
declines to adopt either of these categorizations, a non-enforcement 
position until the rule further defining the term ``eligible contract 
participant'' and the federal regulatory agency rules applicable to 
retail forex transactions have been finalized, along with a 
corresponding section 4(c) order exempting affected persons from 
private rights of action.\101\
---------------------------------------------------------------------------

    \98\ See Associations at p. 3.
    \99\ Id. at p. 16.
    \100\ Id.
    \101\ See Associations at p. 16, n.38.
---------------------------------------------------------------------------

2. Commission Determination
    With respect to the first issue, the term ``eligible contract 
participant'' is currently defined in the CEA.\102\ The Dodd-Frank Act 
amended the existing CEA definition by, among other things, raising the 
monetary thresholds for certain persons and entities to qualify as 
eligible contract participants. As noted, the term ``eligible contract 
participant'' is one of the terms that Congress, in sections 712(d) and 
721(c), required the Commission (jointly with the SEC, and in 
consultation with the Board of Governors of the Federal Reserve System) 
to further define. Sections 712(d) and 721(c) are included in the list 
of Category 1 provisions in the Appendix. Accordingly, the Commission 
confirms that pending the effective date of the required rulemaking to 
further define the term ``eligible contract participant,'' that term 
shall continue to mean an eligible contract participant as defined by 
the CEA prior to the enactment of the Dodd-Frank Act.
---------------------------------------------------------------------------

    \102\ See CEA section 1a(12), 7 U.S.C. 1a(12).
---------------------------------------------------------------------------

    With respect to the second issue, sections 741 and 742 of the Dodd-
Frank Act enacted various amendments to CEA sections 2(c)(2)(B) and 
(C), which address certain types of forex transactions with retail 
customers. These amendments do not themselves require a rulemaking, nor 
do they reference the term ``eligible contract participant'' or any 
other term requiring further definition. Therefore, they are 
appropriately placed in Category 4, outside the scope of the Final 
Order granting temporary exemptive relief from the July 16 effective 
date.
    To be sure, both of these provisions, in text that was not amended 
by the Dodd-Frank Act, define the ``retail'' customers to which they 
apply as persons that are not eligible contract participants. Yet, the 
amendments in sections 741 and 742 of the Dodd-Frank Act contain 
important protections for non-eligible contract participants engaging 
in off-exchange forex transactions, which represent an area that 
historically has been fraught with customer fraud and other abusive 
sales practices. As one example, they clarify that an account or pooled 
investment vehicle that is offered for the purpose of trading, or that 
trades, a covered off-exchange forex transaction with a non-eligible 
contract participant--in addition to the transaction itself--is subject 
to the Commission's jurisdiction, including its anti-fraud authority.
    Unlike new statutory terms required to be further defined (e.g., 
``swap,'' ``swap dealer,'' and ``major swap participant''), the CEA 
prior to enactment of the Dodd-Frank Act already contains a definition 
of the term ``eligible contract participant'' that has been in place 
for over a decade.\103\ The Commission does not believe that it is 
necessary or appropriate to delay the effective date of the important 
customer protections in amended CEA sections 2(c)(2)(B) and (C) until 
such time as it issues the final joint rulemaking further defining the 
term ``eligible contract participant'' for purposes of the new swap 
regulatory regime.\104\ Accordingly, the Commission, as proposed, 
considers the amendments to CEA sections 2(c)(2)(B) and (C) to be 
Category 4 provisions in their entirety and is not providing exemptive 
relief from the July 16 effective date of these provisions. As 
discussed above, though, pending the effective date of the required 
rulemaking to further define the term ``eligible contract 
participant,'' for purposes of CEA sections 2(c)(2)(B) and (C) that 
term shall continue to mean an eligible contract participant as defined 
by the CEA prior to the enactment of the Dodd-Frank Act.
---------------------------------------------------------------------------

    \103\ The amendments to the definition of the term ``eligible 
contract participant'' in the Dodd-Frank Act were motivated largely 
by concerns regarding the marketing of over-the-counter derivatives 
that the Dodd-Frank Act defines as ``swaps.'' See generally 
Department of the Treasury, Financial Regulatory Reform: A New 
Foundation; Rebuilding Financial Supervision and Regulation, at pp. 
45-46, June 17, 2009.
    \104\ Even if these provisions were placed in Category 2, 
section 742 of the Dodd-Frank Act is listed in section 721(d), which 
places limits on the Commission's exemptive authority under CEA 
section 4(c).
---------------------------------------------------------------------------

    With respect to new CEA section 2(c)(2)(E) enacted as part of 
section 742 of the Dodd-Frank Act,\105\ it generally prohibits a 
financial institution for which there is a Federal regulatory agency 
\106\ from entering into certain off-exchange forex transactions \107\ 
with retail customers (i.e., non-eligible contract participants) except 
pursuant to a rule or regulation of the Federal regulatory agency 
allowing the transaction under such terms and conditions as the Federal 
regulatory agency shall prescribe. The Commission does not agree that 
CEA section 2(c)(2)(E) should be treated as a Category 1 provision on 
the basis that it requires rulemakings by other financial regulatory 
agencies.\108\ Although section 2(c)(2)(E) prohibits a financial 
institution from entering into certain forex transactions with non-
eligible contract participants unless its Federal regulatory agency 
adopts rules allowing such transactions, it does not require Federal 
regulatory agencies to adopt such rules.
---------------------------------------------------------------------------

    \105\ To be codified at 7 U.S.C. 2(c)(2)(E).
    \106\ Section 2(c)(2)(E) defines a ``Federal regulatory agency'' 
to include the Commission, the SEC, the National Credit Union 
Administration, the Farm Credit Administration, and an ``appropriate 
Federal banking agency.'' Section 721(a)(2) of the Dodd-Frank Act, 
in turn, adds a new definition of the term ``appropriate Federal 
banking agency'' in CEA section 1a(2), to be codified at 7 U.S.C. 
1a(2), that includes the Office of the Comptroller of the Currency, 
the Federal Deposit Insurance Corporation, and the Board of 
Governors of the Federal Reserve System.
    \107\ The prohibition applies to forex transactions of the type 
described in CEA section 2(c)(2)(B), as well as all forex 
transactions ``that are functionally or economically similar'' to 
such transactions.
    \108\ See Associations at p. 16.
---------------------------------------------------------------------------

    Granting relief from the July 16 effective date with respect to 
section 2(c)(2)(E) would treat this provision differently from the 
Commission's treatment of the similar provisions in sections 2(c)(2)(B) 
and (C) as Category 4 provisions, as discussed above.\109\ In light of 
the important customer protection interests served by section 
2(c)(2)(E), the Commission does not believe that such different 
treatment is necessary or appropriate. Accordingly, the Commission, as 
proposed, considers new CEA section 2(c)(2)(E) to be a Category 4 
provision and is not

[[Page 42517]]

providing exemptive relief from the July 16 effective date of this 
provision.\110\ As discussed above, though, pending the effective date 
of the required rulemaking to further define the term ``eligible 
contract participant,'' for purposes of CEA section 2(c)(2)(E) that 
term shall mean an eligible contract participant as defined by the CEA 
prior to the enactment of the Dodd-Frank Act.\111\
---------------------------------------------------------------------------

    \109\ See also supra, n.104.
    \110\ Although none of the comment letters discussed new CEA 
section 2(c)(2)(D) enacted in section 742 of the Dodd-Frank Act, to 
be codified at 7 U.S.C. 2(c)(2)(D), it provides protections to 
retail customers, which it defines as persons that are not eligible 
contract participants, in transactions in commodities other than 
foreign currency. Thus, it raises similar issues. Fraud and abusive 
practices also have been a frequent problem in off-exchange 
transactions with retail customers in commodities such as precious 
metals. In light of these important customer protection concerns, 
and the fact that the CEA prior to enactment of the Dodd-Frank Act 
already contains a settled definition of the term ``eligible 
contract participant,'' the Commission is clarifying that new CEA 
section 2(c)(2)(D) similarly is a Category 4 provision for which no 
relief from the July 16 effective date is being provided. Pending 
the effective date of the required rulemaking to further define the 
term ``eligible contract participant,'' for purposes of CEA section 
2(c)(2)(D) that term shall mean an eligible contract participant as 
defined by the CEA prior to the enactment of the Dodd-Frank Act.
    \111\ AIMA submitted a comment letter that expressed ``support 
[for] exemptive relief from any rule that relies on the amended 
definition'' of the term ``eligible contract participant.'' See AIMA 
at p. 2. The exemptive relief being issued by the Commission applies 
to various provisions of the Dodd-Frank Act and the CEA that 
otherwise would become effective on July 16, 2011. The Commission 
will consider the appropriate effective date and compliance date of 
the rules implementing the Dodd-Frank Act in its final rulemakings 
adopting such rules.
---------------------------------------------------------------------------

F. Private Right of Action

1. Comments
    Section 749 of the Dodd-Frank Act amends CEA section 22(a)(1)(B) 
\112\ to apply the CEA's private right of action to violations 
involving swaps. The Associations requested that the Commission confirm 
that it is granting a temporary exemption pursuant to CEA section 4(c) 
with respect to the Dodd-Frank Act's expansion of the private right of 
action to violations involving swaps, and to provide a specific section 
4(c) exemption with respect to the application of CEA section 
22(a)(1)(B) to any provision that is the subject of a Commission or 
staff no-action position.\113\ The Associations noted that ``under the 
Commission's proposed categorization, it is clear that section 749's 
amendment to CEA Section 22(a)(1)(B) should logically fall under 
Category 2, and accordingly be the subject of a temporary exemption 
under CEA Section 4(c).'' \114\
---------------------------------------------------------------------------

    \112\ 7 U.S.C. 25(a)(1)(B).
    \113\ See Associations at p. 12.
    \114\ Id. at 11.
---------------------------------------------------------------------------

2. Commission Determination
    As noted in the proposed order, amended CEA section 22(a) (private 
right of action with respect to swaps) is a provision that amends the 
CEA and that references a term that requires further definition, but 
nevertheless, the Commission does not believe that it is appropriate to 
include the provision within the scope of the exemptive relief.\115\ To 
the extent that the Final Order provides exemptive relief under CEA 
section 4(c) with respect to Category 2 and Category 3 provisions, such 
exemptive relief would, in effect, preclude a person from succeeding in 
a private right of action under CEA section 22(a) for violation of such 
provisions. Accordingly, the Commission believes that the requested 
relief is not necessary to achieve the purposes of the Final 
Order.\116\
---------------------------------------------------------------------------

    \115\ 76 FR at 35374, n.13.
    \116\ The Commission also declines to provide a section 4(c) 
exemption with respect to the application of CEA section 22(a)(1)(B) 
to any provision that is the subject of a no-action letter, as such 
relief would be the functional equivalent of exemptive relief which 
may be restricted under the limitations on CEA section 4(c) set 
forth in section 721(d) of the Dodd-Frank Act. In the absence of 
clear authority to provide such relief in this manner, the 
Commission does not believe that granting such relief in this Final 
Order would provide the requested legal clarity.
---------------------------------------------------------------------------

    Nevertheless, the staff's Category 4 list that was posted on the 
CFTC Web site identified only CEA sections 22(a)(4) and (5)--not 
section 22(a)(1), which is the provision that provides for a private 
right of action for violation of the swap provisions. To address this 
inadvertent omission, the Category 4 list in the appendix to this Final 
Order includes CEA section 22(a)(1)(B).\117\
---------------------------------------------------------------------------

    \117\ In addition, the lists of Category 1 and Category 4 
provisions set forth in the Appendix include other changes as 
compared to the staff lists that were posted on the Commission's Web 
site on June 14, 2011. Specifically with respect to Category 1: (i) 
section 711 of the Dodd-Frank Act has been added to the ``Required 
Rulemaking'' column for Teams II and XXI; (ii) section 741(b)(10) of 
the Dodd-Frank Act has been added to the ``Required Rulemaking'' 
column for Team II; (iii) the reference to ``section 2(h)(7)'' of 
the CEA for Team XI has been modified to read ``section 2(h)(7)(A)-
(D);'' and (iv) the separate rows with respect to swap data 
recordkeeping and reporting requirements have been combined. And 
with respect to Category 4: (i) sections 722(a) and (c) of the Dodd-
Frank Act have been added; (ii) new CEA section 5b(h), to be 
codified at 7 U.S.C. 7a-1(h), has been added; (iii) section 741(a) 
of the Dodd-Frank Act has been added; (iv) the reference to 
``section 741(b)'' of the Dodd-Frank Act has been modified to read 
``section 741(b)(8)-(9);'' (v) wording changes to the ``Summary 
Description'' of sections 742(a) and (c) of the Dodd-Frank Act have 
been made; (vi) new CEA sections 23(g) and (m), to be codified at 7 
U.S.C. 26(g) and (m), have been added with respect to section 748 of 
the Dodd-Frank Act; and (vii) a technical correction in the 
reference to CEA section 6(b) has been made with respect to section 
749 of the Dodd-Frank Act.
---------------------------------------------------------------------------

    NYCBA requested the Commission to ``explicitly provide that section 
22(a)(4)(B) of the CEA as amended by the Dodd-Frank Act will become 
effective July 16, 2011.'' \118\ The Commission notes that the Category 
4 list in the Appendix includes amended sections 22(a)(4)-(5) under the 
Dodd-Frank Act section 739 provisions governing legal certainty for 
swaps. As such, sections 22(a)(4)-(5) become effective on July 16, 
2011.
---------------------------------------------------------------------------

    \118\ See NYCBA at p. 8.
---------------------------------------------------------------------------

G. Preemption

1. Comments
    The Commission also received comments addressing questions of the 
preemption of state gaming and bucket shop laws. NYCBA requested that 
the Final Order clarify that any agreement, contract or transaction 
subject to the Final Order ``will benefit from the preemption of any 
state or local laws provided by Section 12(e)(2) of the CEA because the 
relief is granted under Section 4(c) of the CEA.'' \119\
---------------------------------------------------------------------------

    \119\ Id.
---------------------------------------------------------------------------

    The Associations noted that because the Dodd-Frank Act repealed the 
application of CEA section 12(e)(2)(B) \120\ to certain previously 
exempted swap transactions, ``market participants are concerned that 
transactions conducted in accordance with the federal statutory 
provisions and rules applicable to swaps could potentially be subject 
to challenges for invalidity under state law prohibitions against 
gaming and bucket shops that in many cases pre-date even federal 
regulation of futures contracts.'' \121\ To address these concerns, the 
Associations suggested the adoption of a permanent exemption under 
section 4(c) for such transactions. They noted that ``[i]f the 
Commission extends permanent exemptive relief to such transactions, 
this risk would be eliminated, since CEA section 12(e)(2)(B) explicitly 
states that the CEA supersedes state gaming and bucket shop laws in the 
case of `an agreement, contract or transaction * * *

[[Page 42518]]

exempted under section 4(c) of [the CEA] * * *' '' \122\
---------------------------------------------------------------------------

    \120\ CEA section 12(e)(2)(B), as amended by section 749 of the 
Dodd-Frank Act, provides that:
    (2) This Act shall supersede and preempt the application of any 
State or local law that prohibits or regulates gaming or the 
operation of bucket shops (other than antifraud provisions of 
general applicability) in the case of--
    * * *
    (B) An agreement, contract, or transaction that is excluded from 
this Act under section 2(c) or 2(f) of this Act * * * or exempted 
under section 4(c) of this Act (regardless of whether any such 
agreement, contract, or transaction is otherwise subject to this 
Act.)
    \121\ See Associations at p. 14.
    \122\ Id.; see also ABA Derivatives Committee at p. 13.
---------------------------------------------------------------------------

2. Commission Determination
    The Commission notes that the Final Order does not affect the 
applicability of CEA section 12(e)(2)(B) to any exemptive relief under 
section 4(c) that is provided by the Final Order. CEA section 
12(e)(2)(B) as amended by section 749 of the Dodd-Frank Act provides 
that the CEA supersedes state gaming and bucket shop laws in the case 
of ``an agreement, contract or transaction * * * exempted under section 
4(c)'' of the CEA. To the extent that the Final Order provides 
temporary exemptive relief under CEA section 4(c), CEA section 
12(e)(2)(B) will apply to such transactions that are within the scope 
of such exemptive relief.
    As the Commission explained in its proposed order, the purpose of 
the relief is to address concerns that were raised about the effects 
upon the swaps market during the period between July 16, 2011 and the 
date(s) that the definitional rulemakings have been completed.\123\ 
Indeed, the Commission reaffirmed in its proposed order that it intends 
to ``strive to ensure that current practices will not be unduly 
disrupted during the transition to the new regulatory regime.'' \124\ 
Insofar as these comments seek a permanent exemption under section 
4(c), the requested relief is outside the scope of the Final Order.
---------------------------------------------------------------------------

    \123\ 76 FR at 35373.
    \124\ See n.9, supra.
---------------------------------------------------------------------------

H. Market Issues

1. Comments
    State Street Corporation (``State Street'') expressed concern that 
``limiting exemptive relief under the Commission's Order and 
grandfather relief under the [swap execution facility] rules to the 
small number of firms that are already operating an electronic trading 
platform or system for the trading of exempt commodities (in the case 
of ECMs) or the trading of futures contracts on excluded commodities 
(in the case of EBOTs) would have the effect of making it impossible 
for new entrants--who would have to wait for the [swap execution 
facility] rules to be adopted and their applications to be approved'' 
to enter the swaps market and compete.\125\ State Street also requested 
that the Commission clarify that electronic trading facilities that 
operate, either currently or at any point during the relief period, 
under CEA sections 2(d)(2) and 2(e), as in effect prior to July 16, 
2011, will be permitted to conduct business operations on a temporary 
basis during the relief period, without regard to whether the 
electronic trading facility is currently operating or instead commences 
operations at some point during the relief period.\126\
---------------------------------------------------------------------------

    \125\ See letter dated June 28, 2011, from David C. Phelan, 
Executive Vice President and General Counsel, State Street, at p. 3.
    \126\ Id. at pp. 2-3.
---------------------------------------------------------------------------

    CME requested that the Commission confirm that exemptive relief is 
not needed for a designated contract market (``DCM'') to list swaps for 
trading on or after July 16, so long as those products are regulated as 
futures products and market participants trading those products are 
regulated as futures market participants. Alternatively, if the 
Commission views it differently, CME asks the Commission to issue such 
exemptive relief.\127\
---------------------------------------------------------------------------

    \127\ See CME at pp. 4-5.
---------------------------------------------------------------------------

2. Commission Determination
    In response to the comments, the Commission would like to clarify 
the conditions that apply to the grandfather relief orders for ECMs and 
EBOTs that were issued by the Commission in September 2010.\128\ Both 
of those orders have three basic conditions. First, the ECM or EBOT 
must file an appropriate and timely petition with the Commission. In 
the case of ECMs, the filing deadline was September 20, 2010 and for 
EBOTs, the deadline is July 15, 2011. Second, the ECM or EBOT must file 
a DCM or swap execution facility (``SEF'') application with the 
Commission within 60 days of the effective date of final regulations 
regarding the DCM or SEF provisions. Third, the ECM's or EBOT's DCM or 
SEF application must remain pending before the Commission.
---------------------------------------------------------------------------

    \128\ See supra, n.47.
---------------------------------------------------------------------------

    The Commission is clarifying the second and third conditions, in 
that the Commission has not yet issued any final DCM or SEF rulemakings 
since enactment of the Dodd-Frank Act. The Commission notes that the 
list of conditions for the ECM and EBOT grandfather relief orders are 
premised on the ECM or EBOT ``meet[ing] all of the following applicable 
conditions.'' \129\ Given that the Commission has not yet adopted 
either final DCM or final SEF regulations, the ECM and EBOT grandfather 
relief order conditions premised on DCM or SEF applications are not yet 
applicable. Accordingly, at this point in time, all that an ECM or EBOT 
must do to receive relief pursuant to the grandfather relief orders is 
to have satisfied the orders' petition condition in a timely manner.
---------------------------------------------------------------------------

    \129\ Id. at 56515.
---------------------------------------------------------------------------

    The Commission also is clarifying the relationship between the 
grandfather relief orders and this Final Order. For ECMs that filed 
their petitions with the Commission by September 20, 2010, the 
grandfather relief order operates independently and those ECMs may rely 
on either the grandfather relief order or this Final Order, or both. 
For those ECMs that did not file a petition for grandfather relief by 
September 20, 2010, they may qualify for relief under this temporary 
Final Order if they satisfy the requisite terms and conditions 
herein.\130\ Similarly, for EBOTs that file or have filed their 
petitions for grandfather relief by July 15, 2011, that grandfather 
relief operates independently and those EBOTs may rely on either the 
grandfather relief order or this Final Order, or both. Likewise, for 
those EBOTs that have not filed their petitions for grandfather relief 
by July 15, 2011, they may qualify for relief under this Final Order if 
they, too, satisfy the requisite terms and conditions herein.
---------------------------------------------------------------------------

    \130\ EBOTs and ECMs that rely on this exemptive relief also 
must comply with part 36 of the Commission's regulations and, in 
particular, its various reporting requirements.
---------------------------------------------------------------------------

    The Commission stated in footnote 39 of the proposed order that the 
proposed exemptive relief would not be available to an electronic 
trading facility that, as of July 15, 2011, was not already operating 
as an ECM pursuant to CEA sections 2(h)(3)-(7), or to an EBOT that, as 
of July 15, 2011, was not already operating pursuant to CEA section 5d, 
or not compliant with the conditions set forth in such provisions. The 
Commission, however, has determined not to limit the Final Order herein 
to those ECMs and EBOTs that already are operating as of July 15, 2011. 
Further, the Commission also clarifies that the relief under this Final 
Order is available to an electronic trading facility that currently 
operates or commences operations during the pendency of this relief 
pursuant to CEA sections 2(d)(2) and 2(e), as in effect prior to July 
16, 2011.
    The Commission also confirms that a DCM may list and trade swaps on 
or after July 16 under the DCM's rules related to futures contracts, 
without exemptive relief.\131\
---------------------------------------------------------------------------

    \131\ The Commission notes that if a DCM intends to trade swaps 
pursuant to the rules, processes, and procedures currently 
regulating trading on its DCM, the DCM may need to amend or 
otherwise update applicable rules, processes, and procedures, in 
order to address the trading of swaps, depending upon the 
composition of the DCM's rules.

---------------------------------------------------------------------------

[[Page 42519]]

I. Core Principles

1. Comments
    The Commission received a number of comments on the application of 
the Proposed Order to the DCM and derivatives clearing organization 
(``DCO'') core principles. On the one hand, CME agreed that the core 
principles for DCMs and DCOs are appropriately categorized as Category 
4 provisions for which the Commission is not issuing exemptive 
relief.\132\
---------------------------------------------------------------------------

    \132\ CME at p. 4.
---------------------------------------------------------------------------

    On the other hand, some commenters believe that the core principles 
for DCMs and DCOs in CEA sections 5(d) and 5b(c)(2), respectively,\133\ 
should be treated as either Category 1 or 2 provisions. The Minneapolis 
Grain Exchange, Inc. (``MGEX'') stated that the Commission should grant 
temporary relief from the new core principles of the Dodd-Frank Act for 
DCOs and DCMs.\134\ The Natural Gas Exchange (``NGX'') expressed 
concern that DCOs will have to make modifications to come into 
compliance with amended core principles by July 16, 2011, and then may 
be required to again make modifications when final rules are issued. 
NGX requested that the Commission or its staff adopt a non-enforcement 
policy against any DCO or DCO member or participant with respect to 
compliance with the DCO core principles until the implementation of 
final Commission rules governing the operation of DCOs or, 
alternatively, that the Commission provide at least a 60-day period 
following July 16, 2011, before it takes any enforcement action.\135\
---------------------------------------------------------------------------

    \133\ 7 U.S.C. 7(d) and 7a-1(c)(2).
    \134\ See letter dated July 1, 2011, from Layne G. Carlson, 
Corporate Secretary, MGEX, at pp. 1-2.
    \135\ See letter dated June 30, 2011, from Peter Krenkel, 
President and Chief Executive Officer, NGX, at pp. 2-3.
---------------------------------------------------------------------------

    Nodal Exchange cautioned that placing the DCM core principles in 
section 735 of the Dodd-Frank Act into Category 4, while the core 
principles for SEFs in section 733 are in Category 1, may lead to their 
respective regulations being issued and finalized at different 
times.\136\ Nodal Exchange recommended that the Commission issue final 
rules regarding the DCM and SEF core principles simultaneously.\137\
---------------------------------------------------------------------------

    \136\ See letter dated June 30, 2011, from Paul Cusenza, Chief 
Executive Officer, Nodal Exchange, at pp. 1, 4.
    \137\ Id. at p. 4.
---------------------------------------------------------------------------

2. Commission Determination
    The Commission has considered these comments and believes that the 
DCO and DCM core principles are properly treated as Category 4 
provisions outside the scope of relief of this Final Order. These 
amended core principles apply to the trading and clearing of 
instruments on DCMs and DCOs, regardless of whether the instrument is a 
futures contract or a swap. The Commission sees no need to delay the 
application of these amended core principles to DCMs that trade futures 
contracts or to DCOs that clear futures, a term which does not require 
further definition under the Dodd-Frank Act. Moreover, the amended core 
principles provide that, absent a rule or regulation prescribed by the 
Commission, DCMs and DCOs shall have reasonable discretion in 
developing their rules and programs to comply with the core 
principles.\138\
---------------------------------------------------------------------------

    \138\ See, e.g., CEA section 5(d)(1)(B) and section 
5b(c)(2)(A)(ii), 7 U.S.C. 7(d)(1)(B) and 7a-1(c)(2)(A)(ii).
---------------------------------------------------------------------------

    To the extent that the Commission has issued proposed rulemakings 
with regard to these core principles, any requirements or guidance in 
such rulemakings will not become effective until the effective or 
compliance date of a final rulemaking. The Commission, in its 
discretion, will, where appropriate, establish separate compliance 
dates to address issues arising from the impact of compliance with any 
new requirements.

J. Intermediary Issues

1. Comments
    The Commission received a comment on part two of its proposed order 
relating to whether the exemption provided under part 35 applies to 
agency transactions. Specifically, State Street requested that the 
Commission ``make clear that eligible swap participants and eligible 
contract participants may continue to rely on the Part 35 exemption to 
effect transactions in excluded or exempt commodities, either directly 
or through brokers and other agents, as currently permitted by Part 
35.'' \139\
---------------------------------------------------------------------------

    \139\ See State Street at p. 4.
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    The Commission also received a comment on part two of the Proposed 
Order relating to registration requirements for futures commission 
merchants (``FCMs''), introducing brokers (``IBs''), and commodity 
trading advisors (``CTAs''). The law firm of Covington & Burling noted 
that many participants exclusively in the ``OTC'' swaps market are not 
currently registered with the Commission in any capacity, but may have 
to register with the Commission as FCMs, IBs or CTAs after the 
Commission's Dodd-Frank Act rules are made effective. The commenter 
requested that the Commission clarify that these entities will not be 
required to register in those capacities based solely on their swaps 
activity until after the last adopted final product definition rules 
become effective.\140\
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    \140\ See letter dated July 1, 2011 from Bruce C. Bennett, 
Covington & Burling LLP, at p. 5.
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2. Commission Determination
    The purpose of this exemptive relief is to maintain the status quo 
during the implementation process for the Dodd-Frank Act. As noted in 
the proposed order, the temporary exemptive relief would not affect the 
availability of part 35 with respect to transactions that fully meet 
the requirements of part 35.\141\ Thus, the Commission confirms that to 
the extent that agency transactions are permitted under part 35, that 
relief is unaffected by the temporary exemptive relief provided 
herein.\142\ However, for transactions that exclusively qualify for the 
temporary exemptive relief in part two of this Final Order (i.e., do 
not comply fully with the requirements of part 35), such agency 
transactions would only be permitted to the extent they were permitted 
by the applicable statutory exclusions and exemptions in effect prior 
to July 16, 2011 (i.e., current CEA sections 2(d), 2(e), 2(g), 2(h), 
and 5d).
---------------------------------------------------------------------------

    \141\ 76 FR at 35376.
    \142\ See Exemption for Bilateral Transactions, 65 FR 78030, 
78033, Dec. 13, 2000.
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    The Dodd-Frank Act amended various intermediary definitions to 
cover swaps activity as well as futures transactions.\143\ The 
Commission confirms that if an entity is exclusively participating in 
the swaps market, it would not have to register as an FCM, IB or CTA 
prior to the completion of the rulemaking further defining the term 
``swap.'' In sum, the Commission will not require registration in an 
intermediary capacity in this situation until the further definition of 
the term ``swap'' becomes effective.
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    \143\ See, e.g., 76 FR at 35374 n.16.
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IV. Section 4(c) of the Commodity Exchange Act

    Section 4(c)(1) of the CEA \144\ authorizes the CFTC to exempt any

[[Page 42520]]

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 CEA section 
4(c)(2), the Commission must determine that: (1) The exemption is 
appropriate for the transaction 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;'' \145\ 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 
CEA.\146\
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    \144\ CEA section 4(c)(1), 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), or from any other 
provision of this Act (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.
    \145\ CEA section 4(c)(3), 7 U.S.C. 6(c)(3), includes within the 
term ``appropriate person'' 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. See CEA section 
4(c)(3)(K), 7 U.S.C 6(c)(3)(K).
    \146\ 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) 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.
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    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 provisions of the Act, under the terms contained in'' 
the Act, in order to prepare for the effective dates of the provisions 
of Title VII.

A. The Proposed Order

    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.'' \147\ In proposing the temporary relief, the 
Commission stated its intention 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 Title 
VII, thereby avoiding or minimizing undue and unwarranted disruptions 
to the markets.\148\
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    \147\ House Conf. Report No. 102-978, 1992 U.S.C.C.A.N. 3179, 
3213.
    \148\ 76 FR at 35377.
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    The Commission also noted the limited duration of the proposed 
order and that it reserved the Commission's anti-fraud and anti-
manipulation enforcement authority.\149\ As such, the Commission stated 
its belief that the proposed order would be consistent with the public 
interest and purposes of the CEA.\150\ The Commission proposed to limit 
the relief 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., IBs, 
commodity pool operators (``CPOs''), CTAs, and associated persons 
thereof).\151\ The Commission stated its belief that the proposed order 
would 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.\152\
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    \149\ Id.
    \150\ Id.
    \151\ 76 FR at 35377 n.46, citing 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'').
    \152\ 76 FR at 35377.
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B. Comments

    The ABA Derivatives Committee commented that the Commission should 
exercise its authority under CEA section 4(c)(3)(K) to make it clear 
that the ``appropriate persons'' who qualify for relief under its 
exemptive order include individuals whose total assets exceed $10 
million and ``persons relying on the `line of business' exemption to 
engage in swaps without ECP status.'' \153\
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    \153\ See ABA Derivatives Committee at p. 9. See also CEF at p. 
7 n.21. The ``line of business'' provision was a part of the 
Commission's Policy Statement Concerning Swap Transactions, 54 FR 
30694, 30696-30697, July 21, 1989.
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C. Commission Determination

    For the purpose of making the requisite findings under section 4(c) 
for part two of the Final Order, the Commission confirms that 
individuals whose total assets exceed $10 million are appropriate 
persons. Likewise, for purposes of part two of this Final Order, 
persons relying on the ``line of business'' exemption as described in 
the proposed order are appropriate persons. It should be noted that the 
explicit reference in the proposed order to IBs, CPOs, and CTAs (and 
associated persons thereof) as appropriate persons was not intended to 
restrict the scope of appropriate persons to only those persons. The 
Commission confirms that for the purpose of this temporary Final Order, 
the Commission has found the various persons and entities subject to 
this temporary relief to be appropriate persons.
    For the reasons provided in the proposed order and mentioned above, 
the Commission has determined that: (1) The exemption provided by this 
Final Order is appropriate for the subject transactions and consistent 
with the public interest; (2) the exemption is consistent with the 
purposes of the CEA; (3) the transactions will be entered into solely 
between appropriate persons; 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 CEA.

V. Paperwork Reduction Act

    The Paperwork Reduction Act (``PRA'') \154\ 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 Final Order does not require a new 
collection of information from any persons or entities that would be 
subject to the Final Order.
---------------------------------------------------------------------------

    \154\ 44 U.S.C. 3507(d).

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[[Page 42521]]

VI. Cost-Benefit Considerations

    Section 15(a) of the CEA \155\ requires the Commission to consider 
the costs and benefits of its action before issuing an order under the 
CEA. CEA section 15(a) 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.
---------------------------------------------------------------------------

    \155\ 7 U.S.C. 19(a).
---------------------------------------------------------------------------

    The Commission has decided to issue, pursuant to its authority 
under CEA sections 4(c) and 4c(b), certain temporary relief from the 
provisions of the CEA added or amended by Title VII of 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 and do not 
require a rulemaking. The Commission also is granting temporary relief 
from certain provisions of the CEA that will or may apply to certain 
agreements, contracts, and transactions as a result of the repeal of 
various CEA exemptions and exclusions as of the general effective date 
of Title VII of the Dodd-Frank Act set forth in section 754--July 16, 
2011.
    The Commission received no comments on the cost and benefit 
considerations section of the proposed order. Nevertheless, the 
Commission did receive two specific comments requesting additional 
exemptive relief due to potential costs.
    NGX is concerned that DCOs will have to make modifications to come 
into compliance with amended core principles by July 16, 2011, and then 
may be required to again make modifications when final rules are issued 
by the Commission.\156\ Similarly, MGEX states that the Commission 
should grant temporary relief from the new core principles of the Dodd-
Frank Act for DCOs and DCMs in sections 725 and 735.\157\
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    \156\ See NGX at p. 2.
    \157\ See MGEX at p. 2.
---------------------------------------------------------------------------

    The Commission has decided not to grant more relief to DCOs and 
DCMs. The Commission recognizes that DCOs and DCMs have discretion in 
how to comply with the core principles unless and until the CFTC issues 
rules in this area.
    An analysis of the specific areas of concern identified in section 
15(a) is set out immediately below:
1. Protection of Market Participants and the Public
    As discussed above, the scope of this temporary exemptive relief is 
limited to persons who are ``appropriate persons'' as set forth in 
section 4(c) of the CEA and in this Final Order. Further, this Final 
Order 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 
regulations pursuant to CEA section 4c(b) proscribing fraud. The 
Commission believes that market participants and the public will 
benefit from the clarity offered by the 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. 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 market efficiency, competition, and 
financial integrity.
3. Price Discovery
    As stated above, the temporary relief provided 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 exemptive 
relief, markets will function better as venues for price discovery.
4. Sound Risk Management Practices
    Appropriate persons covered by this exemptive relief will be 
subject to the Commission's full array of existing anti-fraud and anti-
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
    This Final Order is temporary and limited. It will 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 will expire at an appropriate date, as discussed above. The 
expiration provision will 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 the costs and benefits, the Commission has 
determined to issue this Final Order.

VII. Order

    The Commission, to provide for the orderly implementation of the 
requirements of Title VII of the Dodd-Frank Act, pursuant to sections 
4(c) and 4c(b) of the CEA and section 712(f) of the Dodd-Frank Act, 
hereby issues this Order essentially as proposed, consistent with the 
determinations set forth above, which are incorporated in this Final 
Order by reference, and:

[[Page 42522]]

    (1) Exempts, subject to the conditions set forth in paragraph (3), 
all agreements, contracts, and transactions, and any person or entity 
offering, entering into, or rendering advice or rendering other 
services with respect to, any such agreement, contract, or transaction, 
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, which provisions are listed in Category 2 
of the Appendix to this Order; provided, however, that the foregoing 
exemption:
    a. Applies only with respect to those requirements or portions of 
such provisions that specifically relate to such referenced terms; and
    b. Shall expire upon the earlier of: (i) the effective date of the 
applicable final rule further defining the relevant term referenced in 
the provision; or (ii) December 31, 2011;
    (2) Exempts, subject to the conditions set forth in paragraph (3), 
all agreements, contracts, and transactions in exempt and excluded (but 
not agricultural) commodities, and any person or entity offering, 
entering into, or rendering advice or rendering other services with 
respect to, any such agreement, contract, or transaction, from the 
provisions of the CEA, if the agreement, contract, or transaction 
complies with part 35 of the Commission's regulations, notwithstanding 
that:
    a. The agreement, contract, or transaction may be executed on a 
multilateral transaction execution facility;
    b. The agreement, contract, or transaction may be cleared;
    c. Persons offering or entering into the agreement, contract or 
transaction may not be eligible swap participants, provided that all 
parties are eligible contract participants as defined in the CEA prior 
to the date of enactment of the Dodd-Frank Act;
    d. The agreement, contract, or transaction may be part of a 
fungible class of agreements that are standardized as to their material 
economic terms; and/or
    e. No more than one of the parties to the agreement, contract, or 
transaction is entering into the agreement, contract, or transaction in 
conjunction with its line of business, but is neither an eligible 
contract participant nor an eligible swap participant, and the 
agreement, contract, or transaction was not and is not marketed to the 
public;
    Provided, however, that: (i) such agreements, contracts, and 
transactions (and persons offering, entering into, or rendering advice 
or rendering other services with respect to, any such agreement, 
contract, or transaction) fall within the scope of any of the existing 
CEA sections 2(d), 2(e), 2(g), 2(h), and 5d provisions or the line of 
business provision as in effect prior to July 16, 2011; and (ii) the 
foregoing exemption shall expire upon the earlier of: (I) the repeal, 
withdrawal or replacement of part 35 of the Commission's regulations; 
or (II) December 31, 2011;
    (3) Provides that the foregoing exemptions in paragraphs (1) and 
(2) above shall not:
    a. Limit in any way 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 
regulations pursuant to CEA section 4c(b) proscribing fraud;
    b. Apply to any provision of the Dodd-Frank Act or the CEA that has 
become effective prior to July 16, 2011;
    c. Affect any effective or compliance date set forth in any 
rulemaking issued by the Commission to implement provisions of the 
Dodd-Frank Act;
    d. Limit in any way 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 of the Dodd-Frank Act and the CEA, 
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; and
    e. Affect the applicability of any provision of the CEA to futures 
contracts or options on futures contracts, or to cash markets.
    In its discretion, the Commission may condition, suspend, 
terminate, or otherwise modify this Order, as appropriate, on its own 
motion. This Final Order shall be effective immediately.

    Issued in Washington, DC, on July 14, 2011 by the Commission.
David A. Stawick,
Secretary of the Commission.

    Note: The following Commissioner's statement will not appear in 
the Code of Federal Regulations.

Concurrence of Commissioner Scott D. O'Malia on the Order Regarding the 
Effective Date for Swap Regulation

    I concur with the Commission's decision to use its exemptive 
authority under section 4(c) of the Commodity Exchange Act (CEA) to 
provide temporary relief from certain provisions of the Dodd-Frank Act. 
This order will provide much needed legal certainty to the market, at 
least until December 31, 2011, while the Commission continues its 
efforts to adopt final rules under the Dodd-Frank Act. Whereas I 
support the Commission in providing legal certainty, albeit limited, I 
am disappointed in the lack of harmonization between our order and the 
exemptive relief that the Securities and Exchange Commission (SEC) 
provided. I am also disappointed that the final order ignored a number 
of comments from market participants, those that have most at stake in 
each of the Commission's decisions. I hope that this order does not 
foreshadow the direction of final rulemakings to come.

Lack of Harmonization

    In general, the SEC's order provides exemptive relief until the 
relevant final rulemaking is implemented. The Commission's order 
provides such relief only until December 31, 2011. I proposed an 
amendment that would have conformed the two orders that the Commission 
rejected. The SEC is a full partner in many of our rulemakings; it only 
makes sense to develop identical relief policies. The CFTC's sunset 
provision is based on an arbitrary date and cuts short the very legal 
certainty that this order purports to provide. Moreover, participants 
from every aspect of our market--including investor advocates, a 
designated contract market and derivatives clearing organization, a 
potential swap execution facility, and multiple trade associations 
representing intermediaries--commented that the December 31, 2011, 
expiration date is unnecessary. In contrast, only one commenter 
supported the expiration date.

Comments From Market Participants

    In addition to not heeding market participants with respect to the 
expiration date, the Commission has also not addressed the public's 
requests for an implementation plan. I have repeatedly asked the 
Commission to set forth an implementation plan for public notice and 
comment. SEC Chairman Shapiro indicated, in her prepared remarks before 
the House Financial Services Committee, that the SEC is working on an 
implementation plan that will include opportunity for public comment. 
This Commission has already begun voting on final rules, but we have 
yet to see a proposed implementation plan.
    Market participants bear the burden of implementing the multitude 
of reforms that the Commission is proposing. We

[[Page 42523]]

cannot pretend that Dodd-Frank has any chance of meeting its goals if 
we do not work with the public to implement the regulatory 
requirements.
    The Commission is currently planning to meet on August 4th to 
consider several final rules. I strongly urge the Commission to put 
forward an implementation plan for public comment during the month of 
August. This provides a perfect opportunity to receive comment on rule 
order and implementation, without delaying the Commission schedule this 
fall. If we wait until September, we will only have ourselves to blame.
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[FR Doc. 2011-18248 Filed 7-18-11; 8:45 am]
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