IB 

Union Calendar No. 512 

112TH CONGRESS 

2D SESSION H. R. 3283 

[Report No. 112–477, Part I] 

To amend the Commodity Exchange Act and the Securities Exchange Act 

of 1934 to provide an exemption for certain swaps and security-based 

swaps involving non-U.S. persons, and for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

OCTOBER 31, 2011 

Mr. HIMES (for himself and Mr. GARRETT) introduced the following bill; 

which was referred to the Committee on Financial Services, and in addition to the Committee on Agriculture, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions 

as fall within the jurisdiction of the committee concerned 

MAY 11, 2012 

Reported from the Committee on Financial Services with an amendment 

[Strike out all after the enacting clause and insert the part printed in italic] 

MAY 11, 2012 

Referral to the Committee on Agriculture extended for a period ending not 

later than May 30, 2012 

MAY 30, 2012 

Referral to the Committee on Agriculture extended for a period ending not 

later than July 16, 2012 

JULY 16, 2012 

Referral to the Committee on Agriculture extended for a period ending not 

later than September 21, 2012 

SEPTEMBER 21, 2012 

Referral to the Committee on Agriculture extended for a period ending not 

later than November 30, 2012 


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NOVEMBER 30, 2012 

Referral to the Committee on Agriculture extended for a period ending not 

later than December 14, 2012 

DECEMBER 14, 2012 

Additional sponsors: Ms. MOORE, Mrs. MCCARTHY of New York, Mr. DOLD, 

Mr. ROYCE, Mr. SCHWEIKERT, Ms. HAYWORTH, Mr. HINOJOSA, Mr. 

CLAY, Ms. SEWELL, Mr. DAVID SCOTT of Georgia, Mr. MEEKS, Mr. CARNEY, Mr. BACA, and Mr. KINGSTON

DECEMBER 14, 2012 

The Committee on Agriculture discharged; committed to the Committee of the 

Whole House on the State of the Union and ordered to be printed 

[For text of introduced bill, see copy of bill as introduced on October 31, 2011] 

A BILL 

To amend the Commodity Exchange Act and the Securities 

Exchange Act of 1934 to provide an exemption for certain swaps and security-based swaps involving non-U.S. 

persons, and for other purposes. 


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1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Swap Jurisdiction Cer5 tainty Act’’. 

6 SEC. 2. COMMODITY EXCHANGE ACT. 

7 Section 4s(a) of the Commodity Exchange Act (7 

8 U.S.C. 6s(a)) is amended by adding at the end the fol9 lowing: 

10 ‘‘(3) EXTRA-TERRITORIAL SWAP TRANSACTION

11 APPLICATION OF TITLE VII.— 

12 ‘‘(A) IN GENERAL.—A swap entered into be13 tween— 

14 ‘‘(i) a swap dealer that is registered 

15 with the Commission who is either— 

16 ‘‘(I) a U.S. person, or 

17 ‘‘(II) a person that has a parent 

18 company that is a U.S. person, and 

19 ‘‘(ii) a person who is— 

20 ‘‘(I) a U.S. or non-U.S. sub21 sidiary, branch, or affiliate of such 

22 swap dealer, or 

23 ‘‘(II) any other non-U.S. person 

24 that is not registered as a swap dealer 

25 with the Commission, 


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1 shall not be subject to the provisions of title VII 

2 of the Dodd-Frank Wall Street Reform and Con3 sumer Protection Act, and of amendments added 

4 by such title, so long as each swap dealer de5 scribed under clause (i) reports such swap to a 

6 swap data repository registered with the Com7 mission. 

8 ‘‘(B) SWAPS ENTERED INTO BY REGISTERED

9 NON-U.S. PERSONS.— 

10 ‘‘(i) IN GENERAL.—A non-U.S. person 

11 that registers as a swap dealer with the 

12 Commission shall only be subject to the re13 quirements of title VII of the Dodd-Frank 

14 Wall Street Reform and Consumer Protec15 tion Act, and of amendments added by such 

16 title, with respect to swaps that such person 

17 enters into with a U.S. person who is not 

18 a U.S. subsidiary, branch, or affiliate of 

19 such non-U.S. person. 

20 ‘‘(ii) CAPITAL REQUIREMENTS.—A 

21 non-U.S. person that registers as a swap 

22 dealer with the Commission shall be per23 mitted by the Commission to comply with 

24 the capital requirements under subsection 

25 (e) by complying with comparable requireVerDate Mar 15 2010 21:12 Dec 14, 2012 Jkt 029200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6203 E:\BILLS\H3283.RH H3283

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1 ments established by the appropriate gov2 ernmental authorities in the home country 

3 of the non-U.S. person, so long as such 

4 home country is a signatory to the Basel 

5 Accords. 

6 ‘‘(C) NON-U.S. PERSON.—For purposes of 

7 this paragraph, the term ‘non-U.S. person’ in8 cludes— 

9 ‘‘(i) any person that is not a U.S. per10 son; 

11 ‘‘(ii) any discretionary account or 

12 similar account (other than an estate or 

13 trust) held for the benefit or account of a 

14 non-U.S. person by a dealer or other profes15 sional fiduciary organized, incorporated, or 

16 (if an individual) resident in the United 

17 States; 

18 ‘‘(iii) any agency or branch of a U.S. 

19 person located outside the United States 

20 if— 

21 ‘‘(I) the agency or branch operates 

22 for valid business reasons; and 

23 ‘‘(II) the agency or branch is en24 gaged in the business of insurance or 

25 banking and is subject to substantive 


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1 insurance or banking regulation, re2 spectively, in the jurisdiction where it 

3 is located; 

4 ‘‘(iv) any trust of which any profes5 sional fiduciary acting as trustee is a U.S. 

6 person, if— 

7 ‘‘(I) a trustee who is a non-U.S. 

8 person has sole or shared investment 

9 discretion with respect to the trust as10 sets; and 

11 ‘‘(II) no beneficiary of the trust 

12 (and no settlor if the trust is revocable) 

13 is a U.S. person; 

14 ‘‘(v) an employee benefit plan estab15 lished and administered in accordance with 

16 the law, customary practices, and docu17 mentation of a country other than the 

18 United States; and 

19 ‘‘(vi) the International Monetary 

20 Fund, the International Bank for Recon21 struction and Development, the Inter-Amer22 ican Development Bank, the Asian Develop23 ment Bank, the African Development Bank, 

24 the United Nations, a central bank or its 

25 functional equivalent which is located in a 


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1 non-U.S. jurisdiction and that is a signa2 tory to the Basel Accords, and their agen3 cies, affiliates and pension plans, and any 

4 other similar international organizations, 

5 their agencies, affiliates and pension plans. 

6 ‘‘(D) U.S. PERSON.—For purposes of this 

7 paragraph, the term ‘U.S. person’ includes— 

8 ‘‘(i) any natural person resident in the 

9 United States; 

10 ‘‘(ii) any partnership or corporation 

11 organized or incorporated under the laws of 

12 the United States; 

13 ‘‘(iii) any estate of which any executor 

14 or administrator is a U.S. person; 

15 ‘‘(iv) any trust of which any trustee is 

16 a U.S. person; 

17 ‘‘(v) any agency or branch of a foreign 

18 entity located in the United States; 

19 ‘‘(vi) any non-discretionary account or 

20 similar account (other than an estate or 

21 trust) held by a dealer or other fiduciary for 

22 the benefit or account of a United States 

23 person; 

24 ‘‘(vii) any discretionary account or 

25 similar account (other than an estate or 


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1 trust) held by a dealer or other fiduciary or2 ganized, incorporated, or (if an individual) 

3 resident in the United States; and 

4 ‘‘(viii) any partnership or corpora5 tion— 

6 ‘‘(I) organized or incorporated 

7 under the laws of any foreign jurisdic8 tion; and 

9 ‘‘(II) formed by a U.S. person 

10 principally for the purpose of investing 

11 in securities not registered under the 

12 Securities Act of 1933, unless it is or13 ganized or incorporated, and owned, 

14 by accredited investors (as such term is 

15 defined under section 230.501 of title 

16 17, Code of Federal Regulations) that 

17 are not natural persons, estates, or 

18 trusts. 

19 ‘‘(E) ANTI-EVASION.—Notwithstanding any 

20 other provision of this paragraph, each registered 

21 swap dealer shall be subject to the provision 

22 under section 2(i)(2).’’. 

23 SEC. 3. SECURITIES EXCHANGE ACT OF 1934. 

24 Section 15F(a) of the Securities Exchange Act of 1934 

25 (78o–10(a)) is amended by adding at the end the following: 


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1 ‘‘(3) EXTRA-TERRITORIAL SWAP TRANSACTION

2 APPLICATION OF TITLE VII.— 

3 ‘‘(A) IN GENERAL.—A security-based swap 

4 entered into between— 

5 ‘‘(i) a security-based swap dealer that 

6 is registered with the Commission who is ei7 ther— 

8 ‘‘(I) a U.S. person, or 

9 ‘‘(II) a person that has a parent 

10 company that is a U.S. person, and 

11 ‘‘(ii) a person who is a U.S. or non12 U.S. subsidiary, branch, affiliate, or parent 

13 company of such security-based swap deal14 er, 

15 shall not be subject to the provisions of title VII 

16 of the Dodd-Frank Wall Street Reform and Con17 sumer Protection Act, and of amendments added 

18 by such title, so long as each security-based swap 

19 dealer described under clause (i) reports such se20 curity-based swap to a security-based swap data 

21 repository registered with the Commission. 

22 ‘‘(B) SECURITY-BASED SWAPS ENTERED

23 INTO BY REGISTERED NON-U.S. PERSONS.— 

24 ‘‘(i) IN GENERAL.—A non-U.S. person 

25 that registers as a security-based swap dealVerDate Mar 15 2010 21:12 Dec 14, 2012 Jkt 029200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6203 E:\BILLS\H3283.RH H3283

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1 er with the Commission shall only be subject 

2 to the requirements of title VII of the Dodd3 Frank Wall Street Reform and Consumer 

4 Protection Act, and of amendments added 

5 by such title, with respect to security-based 

6 swaps that such person enters into with a 

7 U.S. person who is not a U.S. subsidiary, 

8 branch, or affiliate of such non-U.S. person. 

9 ‘‘(ii) CAPITAL REQUIREMENTS.—A 

10 non-U.S. person that registers as a security11 based swap dealer with the Commission 

12 shall be permitted by the Commission to 

13 comply with the capital requirements under 

14 subsection (e) by complying with com15 parable requirements established by the ap16 propriate governmental authorities in the 

17 home country of the non-U.S. person, so 

18 long as such home country is a signatory to 

19 the Basel Accords. 

20 ‘‘(C) NON-U.S. PERSON.—For purposes of 

21 this paragraph, the term ‘non-U.S. person’ in22 cludes— 

23 ‘‘(i) any person that is not a U.S. per24 son; 


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1 ‘‘(ii) any discretionary account or 

2 similar account (other than an estate or 

3 trust) held for the benefit or account of a 

4 non-U.S. person by a dealer or other profes5 sional fiduciary organized, incorporated, or 

6 (if an individual) resident in the United 

7 States; 

8 ‘‘(iii) any agency or branch of a U.S. 

9 person located outside the United States 

10 if— 

11 ‘‘(I) the agency or branch operates 

12 for valid business reasons; and 

13 ‘‘(II) the agency or branch is en14 gaged in the business of insurance or 

15 banking and is subject to substantive 

16 insurance or banking regulation, re17 spectively, in the jurisdiction where it 

18 is located; 

19 ‘‘(iv) any trust of which any profes20 sional fiduciary acting as trustee is a U.S. 

21 person, if— 

22 ‘‘(I) a trustee who is a non-U.S. 

23 person has sole or shared investment 

24 discretion with respect to the trust as25 sets; and 


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1 ‘‘(II) no beneficiary of the trust 

2 (and no settlor if the trust is revocable) 

3 is a U.S. person; 

4 ‘‘(v) an employee benefit plan estab5 lished and administered in accordance with 

6 the law, customary practices, and docu7 mentation of a country other than the 

8 United States; and 

9 ‘‘(vi) the International Monetary 

10 Fund, the International Bank for Recon11 struction and Development, the Inter-Amer12 ican Development Bank, the Asian Develop13 ment Bank, the African Development Bank, 

14 the United Nations, a central bank or its 

15 functional equivalent which is located in a 

16 non-U.S. jurisdiction and that is a signa17 tory to the Basel Accords, and their agen18 cies, affiliates and pension plans, and any 

19 other similar international organizations, 

20 their agencies, affiliates and pension plans. 

21 ‘‘(D) U.S. PERSON.—For purposes of this 

22 paragraph, the term ‘U.S. person’ includes— 

23 ‘‘(i) any natural person resident in the 

24 United States; 


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1 ‘‘(ii) any partnership or corporation 

2 organized or incorporated under the laws of 

3 the United States; 

4 ‘‘(iii) any estate of which any executor 

5 or administrator is a U.S. person; 

6 ‘‘(iv) any trust of which any trustee is 

7 a U.S. person; 

8 ‘‘(v) any agency or branch of a foreign 

9 entity located in the United States; 

10 ‘‘(vi) any non-discretionary account or 

11 similar account (other than an estate or 

12 trust) held by a dealer or other fiduciary for 

13 the benefit or account of a United States 

14 person; 

15 ‘‘(vii) any discretionary account or 

16 similar account (other than an estate or 

17 trust) held by a dealer or other fiduciary or18 ganized, incorporated, or (if an individual) 

19 resident in the United States; and 

20 ‘‘(viii) any partnership or corpora21 tion— 

22 ‘‘(I) organized or incorporated 

23 under the laws of any foreign jurisdic24 tion; and 


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1 ‘‘(II) formed by a U.S. person 

2 principally for the purpose of investing 

3 in securities not registered under the 

4 Securities Act of 1933, unless it is or5 ganized or incorporated, and owned, 

6 by accredited investors (as such term is 

7 defined under section 230.501 of title 

8 17, Code of Federal Regulations) that 

9 are not natural persons, estates, or 

10 trusts. 

11 ‘‘(E) ANTI-EVASION.—Notwithstanding any 

12 other provision of this paragraph, a registered 

13 security-based swap dealer shall not conduct any 

14 activities that are designed to evade any provi15 sion of this Act that was enacted by the Wall 

16 Street Transparency and Accountability Act of 

17 2010. 

18 ‘‘(F) PRESERVATION OF AUTHORITY.—Noth19 ing in this paragraph shall— 

20 ‘‘(i) exempt a transaction described in 

21 this paragraph from section 23A or 23B of 

22 the Federal Reserve Act, or implementing 

23 regulations thereunder; or 

24 ‘‘(ii) affect the authorities of the pru25 dential regulators over the institutions deVerDate Mar 15 2010 21:12 Dec 14, 2012 Jkt 029200 PO 00000 Frm 00014 Fmt 6652 Sfmt 6203 E:\BILLS\H3283.RH H3283

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1 scribed under subparagraphs (A) through 

2 (E) of section 1a(39) of the Commodity Ex3 change Act (7 U.S.C. 1a(39)) as those au4 thorities are established in law, other than 

5 under title VII of the Dodd-Frank Wall 

6 Street Reform and Consumer Protection Act 

7 and amendments made by such title.’’. 


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Union Calendar No. 512 

112TH CONGRESS 

2D SESSION H. R. 3283 

[Report No. 112–477, Part I] 

A BILL 

To amend the Commodity Exchange Act and the 

purposes. swaps involving non-U.S. persons, and for other exemption for certain swaps and security-based Securities Exchange Act of 1934 to provide an 

DECEMBER 14, 2012 

The Committee on Agriculture discharged; committed to 

Union and ordered to be printed the Committee of the Whole House on the State of the 


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