Commodity End-User Relief Act

To reauthorize the Commodity Futures Trading Commission, to better protect futures customers, to provide end-users with market certainty, to make basic reforms to ensure transparency and accountability at the Commission, to help farmers, ranchers, and end-users manage risks, to help keep consumer costs low, and for other purposes. 1. Short title This Act may be cited as the Commodity End-User Relief Act 2. Table of contents The table of contents of this Act is as follows: Sec. 1. Short title. Sec. 2. Table of contents. Title I—CUSTOMER PROTECTIONS Sec. 101. Enhanced protections for futures customers. Sec. 102. Electronic confirmation of customer funds. Sec. 103. Notice and certifications providing additional customer protections. Sec. 104. Futures commission merchant compliance. Sec. 105. Certainty for futures customers and market participants. Title II—COMMODITY FUTURES TRADING COMMISSION REFORMS Sec. 201. Extension of operations. Sec. 202. Consideration by the Commodity Futures Trading Commission of the costs and benefits of its regulations and orders. Sec. 203. Division directors. Sec. 204. Office of the Chief Economist. Sec. 205. Procedures governing actions taken by Commission staff. Sec. 206. Strategic technology plan. Sec. 207. Internal risk controls. Sec. 208. Subpoena duration and renewal. Sec. 209. Applicability of notice and comment requirements of the Administrative Procedure Act to guidance voted on by the Commission. Sec. 210. Judicial review of Commission rules. Sec. 211. GAO study on use of Commission resources. Sec. 212. Disclosure of required data of other registered entities. Sec. 213. Report on status of any application of metals exchange to register as a foreign board of trade; deadline for action on application. Title III—END-USER RELIEF Sec. 301. Relief for hedgers utilizing centralized risk management practices. Sec. 302. Indemnification requirements. Sec. 303. Transactions with utility special entities. Sec. 304. Utility special entity defined. Sec. 305. Utility operations-related swap. Sec. 306. End-users not treated as financial entities. Sec. 307. Reporting of illiquid swaps so as to not disadvantage certain non-financial end-users. Sec. 308. Relief for grain elevator operators, farmers, agricultural counterparties, and commercial market participants. Sec. 309. Relief for end-users who use physical contracts with volumetric optionality. Sec. 310. Commission vote required before automatic change of swap dealer de minimis level. Sec. 311. Capital requirements for non-bank swap dealers. Sec. 312. Harmonization with the Jumpstart Our Business Startups Act. Sec. 313. Bona fide hedge defined to protect end-user risk management needs. Sec. 314. Cross-border regulation of derivatives transactions. Sec. 315. Exemption of qualified charitable organizations from designation and regulation as commodity pool operators. Sec. 316. Small bank holding company clearing exemption. Sec. 317. Core principle certainty. Sec. 318. Treatment of Federal Home Loan Bank products. Sec. 319. Treatment of certain funds. Title IV—TECHNICAL CORRECTIONS Sec. 401. Correction of references. Sec. 402. Elimination of obsolete references to dealer options. Sec. 403. Updated trade data publication requirement. Sec. 404. Flexibility for registered entities. Sec. 405. Elimination of obsolete references to electronic trading facilities. Sec. 406. Elimination of obsolete reference to alternative swap execution facilities. Sec. 407. Elimination of redundant references to types of registered entities. Sec. 408. Clarification of Commission authority over swaps trading. Sec. 409. Elimination of obsolete reference to the Commodity Exchange Commission. Sec. 410. Elimination of obsolete references to derivative transaction execution facilities. Sec. 411. Elimination of obsolete references to exempt boards of trade. Sec. 412. Elimination of report due in 1986 Sec. 413. Compliance report flexibility. Sec. 414. Miscellaneous corrections. I CUSTOMER PROTECTIONS 101. Enhanced protections for futures customers Section 17 of the Commodity Exchange Act ( 7 U.S.C. 21 (s) A registered futures association shall— (1) require each member of the association that is a futures commission merchant to maintain written policies and procedures regarding the maintenance of— (A) the residual interest of the member, as described in section 1.23 of title 17, Code of Federal Regulations, in any customer segregated funds account of the member, as identified in section 1.20 of such title, and in any foreign futures and foreign options customer secured amount funds account of the member, as identified in section 30.7 of such title; and (B) the residual interest of the member, as described in section 22.2(e)(4) of such title, in any cleared swaps customer collateral account of the member, as identified in section 22.2 of such title; and (2) establish rules to govern the withdrawal, transfer or disbursement by any member of the association, that is a futures commission merchant, of the member’s residual interest in customer segregated funds as provided in such section 1.20, in foreign futures and foreign options customer secured amount funds, identified as provided in such section 30.7, and from a cleared swaps customer collateral, identified as provided in such section 22.2. . 102. Electronic confirmation of customer funds Section 17 of the Commodity Exchange Act ( 7 U.S.C. 21 (t) A registered futures association shall require any member of the association that is a futures commission merchant to— (1) use an electronic system or systems to report financial and operational information to the association or another party designated by the registered futures association, including information related to customer segregated funds, foreign futures and foreign options customer secured amount funds accounts, and cleared swaps customer collateral, in accordance with such terms, conditions, documentation standards, and regular time intervals as are established by the registered futures association; (2) instruct each depository, including any bank, trust company, derivatives clearing organization, or futures commission merchant, holding customer segregated funds under section 1.20 of title 17, Code of Federal Regulations, foreign futures and foreign options customer secured amount funds under section 30.7 of such title, or cleared swap customer funds under section 22.2 of such title, to report balances in the futures commission merchant’s section 1.20 customer segregated funds, section 30.7 foreign futures and foreign options customer secured amount funds, and section 22.2 cleared swap customer funds, to the registered futures association or another party designated by the registered futures association, in the form, manner, and interval prescribed by the registered futures association; and (3) hold section 1.20 customer segregated funds, section 30.7 foreign futures and foreign options customer secured amount funds and section 22.2 cleared swaps customer funds in a depository that reports the balances in these accounts of the futures commission merchant held at the depository to the registered futures association or another party designated by the registered futures association in the form, manner, and interval prescribed by the registered futures association. . 103. Notice and certifications providing additional customer protections Section 17 of the Commodity Exchange Act ( 7 U.S.C. 21 (u) A futures commission merchant that has adjusted net capital in an amount less than the amount required by regulations established by the Commission or a self-regulatory organization of which the futures commission merchant is a member shall immediately notify the Commission and the self-regulatory organization of this occurrence. (v) A futures commission merchant that does not hold a sufficient amount of funds in segregated accounts for futures customers under section 1.20 of title 17, Code of Federal Regulations, in foreign futures and foreign options secured amount accounts for foreign futures and foreign options secured amount customers under section 30.7 of such title, or in segregated accounts for cleared swap customers under section 22.2 of such title, as required by regulations established by the Commission or a self-regulatory organization of which the futures commission merchant is a member, shall immediately notify the Commission and the self-regulatory organization of this occurrence. (w) Within such time period established by the Commission after the end of each fiscal year, a futures commission merchant shall file with the Commission a report from the chief compliance officer of the futures commission merchant containing an assessment of the internal compliance programs of the futures commission merchant. . 104. Futures commission merchant compliance (a) In general Section 4d(a) of the Commodity Exchange Act ( 7 U.S.C. 6d(a) (1) by redesignating paragraphs (1) and (2) as subparagraphs (A) and (B); (2) by inserting (1) It shall be unlawful (3) by adding at the end the following new paragraph: (2) Any rules or regulations requiring a futures commission merchant to maintain a residual interest in accounts held for the benefit of customers in amounts at least sufficient to exceed the sum of all uncollected margin deficits of such customers shall provide that a futures commission merchant shall meet its residual interest requirement as of the end of each business day calculated as of the close of business on the previous business day. . (b) Conforming amendment Section 4d(h) of such Act ( 7 U.S.C. 6d(h) Notwithstanding subsection (a)(2) Notwithstanding subsection (a)(1)(B) 105. Certainty for futures customers and market participants Section 20(a) of the Commodity Exchange Act ( 7 U.S.C. 24(a) (1) by striking and (2) by striking the period at the end of paragraph (5) and inserting ; and (3) by adding at the end the following: (6) that cash, securities, or other property of the estate of a commodity broker, including the trading or operating accounts of the commodity broker and commodities held in inventory by the commodity broker, shall be included in customer property, subject to any otherwise unavoidable security interest, or otherwise unavoidable contractual offset or netting rights of creditors (including rights set forth in a rule or bylaw of a derivatives clearing organization or a clearing agency) in respect of such property, but only to the extent that the property that is otherwise customer property is insufficient to satisfy the net equity claims of public customers (as such term may be defined by the Commission by rule or regulation) of the commodity broker. . II COMMODITY FUTURES TRADING COMMISSION REFORMS 201. Extension of operations Section 12(d) of the Commodity Exchange Act ( 7 U.S.C. 16(d) 2013 2019 202. Consideration by the Commodity Futures Trading Commission of the costs and benefits of its regulations and orders Section 15(a) of the Commodity Exchange Act ( 7 U.S.C. 19(a) (1) by striking paragraphs (1) and (2) and inserting the following: (1) In general Before promulgating a regulation under this Act or issuing an order (except as provided in paragraph (3)), the Commission, through the Office of the Chief Economist, shall assess and publish in the regulation or order the costs and benefits, both qualitative and quantitative, of the proposed regulation or order, and the proposed regulation or order shall state its statutory justification. (2) Considerations In making a reasoned determination of the costs and the benefits, the Commission shall evaluate— (A) considerations of protection of market participants and the public; (B) considerations of the efficiency, competitiveness, and financial integrity of futures and swaps markets; (C) considerations of the impact on market liquidity in the futures and swaps markets; (D) considerations of price discovery; (E) considerations of sound risk management practices; (F) available alternatives to direct regulation; (G) the degree and nature of the risks posed by various activities within the scope of its jurisdiction; (H) the costs of complying with the proposed regulation or order by all regulated entities, including a methodology for quantifying the costs (recognizing that some costs are difficult to quantify); (I) whether the proposed regulation or order is inconsistent, incompatible, or duplicative of other Federal regulations or orders; (J) the cost to the Commission of implementing the proposed regulation or order by the Commission staff, including a methodology for quantifying the costs; (K) whether, in choosing among alternative regulatory approaches, those approaches maximize net benefits (including potential economic and other benefits, distributive impacts, and equity); and (L) other public interest considerations. ; and (2) by adding at the end the following: (4) Judicial review Notwithstanding section 24(d), a court shall affirm a Commission assessment of costs and benefits under this subsection, unless the court finds the assessment to be an abuse of discretion. . 203. Division directors Section 2(a)(6)(C) of the Commodity Exchange Act ( 7 U.S.C. 2(a)(6)(C) , and the heads of the units shall serve at the pleasure of the Commission 204. Office of the Chief Economist (a) In general Section 2(a) of the Commodity Exchange Act ( 7 U.S.C. 2(a) (16) Office of the chief economist (A) Establishment There is established in the Commission the Office of the Chief Economist. (B) Head The Office of the Chief Economist shall be headed by the Chief Economist, who shall be appointed by the Commission and serve at the pleasure of the Commission. (C) Functions The Chief Economist shall report directly to the Commission and perform such functions and duties as the Commission may prescribe. (D) Professional staff The Commission shall appoint such other economists as may be necessary to assist the Chief Economist in performing such economic analysis, regulatory cost-benefit analysis, or research any member of the Commission may request. . (b) Conforming amendment Section 2(a)(6)(A) of such Act ( 7 U.S.C. 2(a)(6)(A) (4) and (5) of this subsection (4), (5), and (16) 205. Procedures governing actions taken by Commission staff Section 2(a)(12) of the Commodity Exchange Act ( 7 U.S.C. 2(a)(12) (1) by striking (12) The (12) Rules and regulations (A) In general Subject to the other provisions of this paragraph, the ; and (2) by adding after and below the end the following new subparagraph: (B) Notice to commissioners The Commission shall develop and publish internal procedures governing the issuance by any division or office of the Commission of any response to a formal, written request or petition from any member of the public for an exemptive, a no-action, or an interpretive letter and such procedures shall provide that the commissioners be provided with the final version of the matter to be issued with sufficient notice to review the matter prior to its issuance. . 206. Strategic technology plan Section 2(a) of the Commodity Exchange Act ( 7 U.S.C. 2(a) (17) Strategic technology plan (A) In general Every 5 years, the Commission shall develop and submit to the Committee on Agriculture of the House of Representatives and the Committee on Agriculture, Nutrition, and Forestry of the Senate a detailed plan focused on the acquisition and use of technology by the Commission. (B) Contents The plan shall— (i) include for each related division or office a detailed technology strategy focused on market surveillance and risk detection, market data collection, aggregation, interpretation, standardization, harmonization, normalization, validation, streamlining or other data analytic processes, and internal management and protection of data collected by the Commission, including a detailed accounting of how the funds provided for technology will be used and the priorities that will apply in the use of the funds; and (ii) set forth annual goals to be accomplished and annual budgets needed to accomplish the goals. . 207. Internal risk controls Section 2(a)(12) of the Commodity Exchange Act ( 7 U.S.C. 2(a)(12) (C) Internal risk controls The Commission, in consultation with the Chief Economist, shall develop comprehensive internal risk control mechanisms to safeguard and govern the storage of all market data by the Commission, all market data sharing agreements of the Commission, and all academic research performed at the Commission using market data. . 208. Subpoena duration and renewal Section 6(c)(5) of the Commodity Exchange Act ( 7 U.S.C. 9(5) (1) by striking (5) Subpoena.— (5) Subpoena (A) In general For ; and (2) by adding after and below the end the following: (B) Omnibus orders of investigation (i) Duration and renewal An omnibus order of investigation shall not be for an indefinite duration and may be renewed only by Commission action. (ii) Definition In clause (i), the term omnibus order of investigation . 209. Applicability of notice and comment requirements of the Administrative Procedure Act to guidance voted on by the Commission Section 2(a)(12) of the Commodity Exchange Act ( 7 U.S.C. 2(a)(12) (D) Applicability of notice and comment rules to guidance voted on by the Commission The notice and comment requirements of section 553 of title 5, United States Code, shall also apply with respect to any Commission statement or guidance, including interpretive rules, general statements of policy, or rules of Commission organization, procedure, or practice, that has the effect of implementing, interpreting or prescribing law or policy and that is voted on by the Commission. . 210. Judicial review of Commission rules The Commodity Exchange Act ( 7 U.S.C. 1 et seq. 24. Judicial review of Commission rules (a) A person adversely affected by a rule of the Commission promulgated under this Act may obtain review of the rule in the United States Court of Appeals for the District of Columbia Circuit or the United States Court of Appeals for the circuit where the party resides or has the principal place of business, by filing in the court, within 60 days after publication in the Federal Register of the entry of the rule, a written petition requesting that the rule be set aside. (b) A copy of the petition shall be transmitted forthwith by the clerk of the court to an officer designated by the Commission for that purpose. Thereupon the Commission shall file in the court the record on which the rule complained of is entered, as provided in section 2112 of title 28, United States Code, and the Federal Rules of Appellate Procedure. (c) On the filing of the petition, the court has jurisdiction, which becomes exclusive on the filing of the record, to affirm and enforce or to set aside the rule in whole or in part. (d) The court shall affirm and enforce the rule unless the Commission’s action in promulgating the rule is found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; contrary to constitutional right, power, privilege, or immunity; in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; or without observance of procedure required by law. . 211. GAO study on use of Commission resources (a) Study The Comptroller General of the United States shall conduct a study of the resources of the Commodity Futures Trading Commission that— (1) assesses whether the resources of the Commission are sufficient to enable the Commission to effectively carry out the duties of the Commission; (2) examines the expenditures of the Commission on hardware, software, and analytical processes designed to protect customers in the areas of— (A) market surveillance and risk detection; and (B) market data collection, aggregation, interpretation, standardization, harmonization, and streamlining; (3) analyzes the additional workload undertaken by the Commission, and ascertains where self-regulatory organizations could be more effectively utilized; and (4) examines existing and emerging post-trade risk reduction services in the swaps market, the notional amount of risk reduction transactions provided by the services, and the effects the services have on financial stability, including— (A) market surveillance and risk detection; (B) market data collection, aggregation, interpretation, standardization, harmonization, and streamlining; and (C) oversight and compliance work by market participants and regulators. (b) Report Not later than 180 days after the date of the enactment of this Act, the Comptroller General of the United States shall submit to the Committee on Agriculture of the House of Representatives and the Committee on Agriculture, Nutrition, and Forestry of the Senate a report that contains the results of the study required by subsection (a). 212. Disclosure of required data of other registered entities Section 8 of the Commodity Exchange Act ( 7 U.S.C. 12 (j) Disclosure of required data of other registered entities (1) Except as provided in this subsection, the Commission may not be compelled to disclose any proprietary information provided to the Commission, except that nothing in this subsection— (A) authorizes the Commission to withhold information from Congress; or (B) prevents the Commission from— (i) complying with a request for information from any other Federal department or agency, any State or political subdivision thereof, or any foreign government or any department, agency, or political subdivision thereof requesting the report or information for purposes within the scope of its jurisdiction, upon an agreement of confidentiality to protect the information in a manner consistent with this paragraph and subsection (e); or (ii) making a disclosure made pursuant to a court order in connection with an administrative or judicial proceeding brought under this Act, in any receivership proceeding involving a receiver appointed in a judicial proceeding brought under this Act, or in any bankruptcy proceeding in which the Commission has intervened or in which the Commission has the right to appear and be heard under title 11 of the United States Code. (2) Any proprietary information of a commodity trading advisor or commodity pool operator ascertained by the Commission in connection with Form CPO-PQR, Form CTA-PR, and any successor forms thereto, shall be subject to the same limitations on public disclosure, as any facts ascertained during an investigation, as provided by subsection (a); provided, however, that the Commission shall not be precluded from publishing aggregate information compiled from such forms, to the extent such aggregate information does not identify any individual person or firm, or such person’s proprietary information. (3) For purposes of section 552 of title 5, United States Code, this subsection, and the information contemplated herein, shall be considered a statute described in subsection (b)(3)(B) of such section 552. (4) For purposes of the definition of proprietary information in paragraph (5), the records and reports of any client account or commodity pool to which a commodity trading advisor or commodity pool operator registered under this title provides services that are filed with the Commission on Form CPO-PQR, CTA-PR, and any successor forms thereto, shall be deemed to be the records and reports of the commodity trading advisor or commodity pool operator, respectively. (5) For purposes of this section, proprietary information of a commodity trading advisor or commodity pool operator includes sensitive, non-public information regarding— (A) the commodity trading advisor, commodity pool operator or the trading strategies of the commodity trading advisor or commodity pool operator; (B) analytical or research methodologies of a commodity trading advisor or commodity pool operator; (C) trading data of a commodity trading advisor or commodity pool operator; and (D) computer hardware or software containing intellectual property of a commodity trading advisor or commodity pool operator; . 213. Report on status of any application of metals exchange to register as a foreign board of trade; deadline for action on application (a) Report to Congress Within 90 days after the date of the enactment of this section, the Commodity Futures Trading Commission shall submit to the Congress a written report on— (1) the status of the review by the Commission of any application submitted by a metals exchange to register with the Commission under section 4(b)(1) of the Commodity Exchange Act; and (2) the status of Commission negotiations with foreign regulators regarding aluminum warehousing. (b) Deadline for action Not later than September 30, 2016, the Commission shall take action on any such application submitted to the Commission on or before August 14, 2012. III END-USER RELIEF 301. Relief for hedgers utilizing centralized risk management practices (a) In general (1) Commodity Exchange Act amendment Section 2(h)(7)(D)(i) of the Commodity Exchange Act ( 7 U.S.C. 2(h)(7)(D)(i) (i) In general An affiliate of a person that qualifies for an exception under subparagraph (A) (including an affiliate entity predominantly engaged in providing financing for the purchase of the merchandise or manufactured goods of the person) may qualify for the exception only if the affiliate enters into the swap to hedge or mitigate the commercial risk of the person or other affiliate of the person that is not a financial entity, provided that if the hedge or mitigation of such commercial risk is addressed by entering into a swap with a swap dealer or major swap participant, an appropriate credit support measure or other mechanism must be utilized. . (b) Applicability of credit support measure requirement The requirements in section 2(h)(7)(D)(i) of the Commodity Exchange Act, as amended by subsection (a), requiring that a credit support measure or other mechanism be utilized if the transfer of commercial risk referred to in such section is addressed by entering into a swap with a swap dealer or major swap participant shall not apply with respect to swaps entered into before the date of the enactment of this Act. 302. Indemnification requirements (a) Derivatives clearing organizations Section 5b(k)(5) of the Commodity Exchange Act ( 7 U.S.C. 7a-1(k)(5) (5) Confidentiality agreement Before the Commission may share information with any entity described in paragraph (4), the Commission shall receive a written agreement from each entity stating that the entity shall abide by the confidentiality requirements described in section 8 relating to the information on swap transactions that is provided. . (b) Swap data repositories Section 21(d) of such Act ( 7 U.S.C. 24a(d) (d) Confidentiality agreement Before the swap data repository may share information with any entity described in subsection (c)(7), the swap data repository shall receive a written agreement from each entity stating that the entity shall abide by the confidentiality requirements described in section 8 relating to the information on swap transactions that is provided. . 303. Transactions with utility special entities Section 1a(49) of the Commodity Exchange Act ( 7 U.S.C. 1a(49) (E) Certain transactions with a utility special entity (i) Transactions in utility operations-related swaps shall be reported pursuant to section 4r. (ii) In making a determination to exempt pursuant to subparagraph (D), the Commission shall treat a utility operations-related swap entered into with a utility special entity, as defined in section 4s(h)(2)(D), as if it were entered into with an entity that is not a special entity, as defined in section 4s(h)(2)(C). . 304. Utility special entity defined Section 4s(h)(2) of the Commodity Exchange Act ( 7 U.S.C. 6s(h)(2) (D) Utility special entity For purposes of this Act, the term utility special entity (i) owns or operates, or anticipates owning or operating, an electric or natural gas facility or an electric or natural gas operation; (ii) supplies, or anticipates supplying, natural gas and or electric energy to another utility special entity; (iii) has, or anticipates having, public service obligations under Federal, State, or local law or regulation to deliver electric energy or natural gas service to customers; or (iv) is a Federal power marketing agency, as defined in section 3 of the Federal Power Act. . 305. Utility operations-related swap (a) Swap further defined Section 1a(47)(A)(iii) of the Commodity Exchange Act ( 7 U.S.C. 1a(47)(A)(iii) (1) by striking and (2) by adding and (3) by adding at the end the following: (XXIII) a utility operations-related swap; . (b) Utility operations-related swap defined Section 1a of such Act ( 7 U.S.C. 1a (52) Utility operations-related swap The term utility operations-related swap (A) is entered into by a utility to hedge or mitigate a commercial risk; (B) is not a contract, agreement, or transaction based on, derived on, or referencing— (i) an interest rate, credit, equity, or currency asset class; (ii) except as used for fuel for electric energy generation, a metal, agricultural commodity, or crude oil or gasoline commodity of any grade; or (iii) any other commodity or category of commodities identified for this purpose in a rule or order adopted by the Commission in consultation with the appropriate Federal and State regulatory commissions; and (C) is associated with— (i) the generation, production, purchase, or sale of natural gas or electric energy, the supply of natural gas or electric energy to a utility, or the delivery of natural gas or electric energy service to utility customers; (ii) fuel supply for the facilities or operations of a utility; (iii) compliance with an electric system reliability obligation; (iv) compliance with an energy, energy efficiency, conservation, or renewable energy or environmental statute, regulation, or government order applicable to a utility; or (v) any other electric energy or natural gas swap to which a utility is a party. . 306. End-users not treated as financial entities (a) In general Section 2(h)(7)(C)(iii) of the Commodity Exchange Act ( 7 U.S.C. 2(h)(7)(C)(iii) (iii) Limitation Such definition shall not include an entity— (I) whose primary business is providing financing, and who uses derivatives for the purpose of hedging underlying commercial risks related to interest rate and foreign currency exposures, 90 percent or more of which arise from financing that facilitates the purchase or lease of products, 90 percent or more of which are manufactured by the parent company or another subsidiary of the parent company; or (II) who is not supervised by a prudential regulator, and is not described in any of subclauses (I) through (VII) of clause (i), and— (aa) is a commercial market participant; or (bb) enters into swaps, contracts for future delivery, and other derivatives on behalf of, or to hedge or mitigate the commercial risk of, whether directly or in the aggregate, affiliates that are not so supervised or described. . (b) Commercial market participant defined (1) In general Section 1a of such Act ( 7 U.S.C. 1a (8) Commercial market participant The term commercial market participant . (2) Conforming amendments (A) Section 1a of such Act ( 7 U.S.C. 1a (i) in subparagraph (A) of paragraph (18) (as so redesignated by paragraph (1) of this subsection), in the matter preceding clause (i), by striking (18)(A) (19)(A) (ii) in subparagraph (A)(vii) of paragraph (19) (as so redesignated by paragraph (1) of this subsection), in the matter following subclause (III), by striking (17)(A) (18)(A) (B) Section 4(c)(1)(A)(i)(I) of such Act ( 7 U.S.C. 6(c)(1)(A)(i)(I) (7), paragraph (18)(A)(vii)(III), paragraphs (23), (24), (31), (32), (38), (39), (41), (42), (46), (47), (48), and (49) (8), paragraph (19)(A)(vii)(III), paragraphs (24), (25), (32), (33), (39), (40), (42), (43), (47), (48), (49), and (50) (C) Section 4q(a)(1) of such Act ( 7 U.S.C. 6o-1(a)(1) 1a(9) 1a(10) (D) Section 4s(f)(1)(D) of such Act ( 7 U.S.C. 6s(f)(1)(D) 1a(47)(A)(v) 1a(48)(A)(v) (E) Section 4s(h)(5)(A)(i) of such Act ( 7 U.S.C. 6s(h)(5)(A)(i) 1a(18) 1a(19) (F) Section 4t(b)(1)(C) of such Act ( 7 U.S.C. 6t(b)(1)(C) 1a(47)(A)(v) 1a(48)(A)(v) (G) Section 5(d)(23) of such Act ( 7 U.S.C. 7(d)(23) 1a(47)(A)(v) 1a(48)(A)(v) (H) Section 5(e)(1) of such Act ( 7 U.S.C. 7(e)(1) 1a(9) 1a(10) (I) Section 5b(k)(3)(A) of such Act ( 7 U.S.C. 7a-1(k)(3)(A) 1a(47)(A)(v) 1a(48)(A)(v) (J) Section 5h(f)(10)(A)(iii) of such Act ( 7 U.S.C. 7b-3(f)(10)(A)(iii) 1a(47)(A)(v) 1a(48)(A)(v) (K) Section 21(f)(4)(C) of such Act ( 7 U.S.C. 24a(f)(4)(C) 1a(48) 1a(49) 307. Reporting of illiquid swaps so as to not disadvantage certain non-financial end-users Section 2(a)(13) of the Commodity Exchange Act ( 7 U.S.C. 2(a)(13) (1) in subparagraph (C), by striking The Commission Except as provided in subparagraph (D), the Commission (2) by redesignating subparagraphs (D) through (G) as subparagraphs (E) through (H), respectively, and inserting after subparagraph (C) the following: (D) Requirements for swap transactions in illiquid markets Notwithstanding subparagraph (C): (i) The Commission shall provide by rule for the public reporting of swap transactions, including price and volume data, in illiquid markets that are not cleared and entered into by a non-financial entity that is hedging or mitigating commercial risk in accordance with subsection (h)(7)(A). (ii) The Commission shall ensure that the swap transaction information referred to in clause (i) of this subparagraph is available to the public no sooner than 30 days after the swap transaction has been executed or at such later date as the Commission determines appropriate to protect the identity of participants and positions in illiquid markets and to prevent the elimination or reduction of market liquidity. (iii) In this subparagraph, the term illiquid markets . 308. Relief for grain elevator operators, farmers, agricultural counterparties, and commercial market participants The Commodity Exchange Act ( 7 U.S.C. 1 et seq. 4u. Recordkeeping requirements applicable to non-registered members of certain registered entities Except as provided in section 4(a)(3), a member of a designated contract market or a swap execution facility that is not registered with the Commission and not required to be registered with the Commission in any capacity shall satisfy the recordkeeping requirements of this Act and any recordkeeping rule, order, or regulation under this Act by maintaining a written record of each transaction in a contract for future delivery, option on a future, swap, swaption, trade option, or related cash or forward transaction. The written record shall be sufficient if it includes the final agreement between the parties and the material economic terms of the transaction. . 309. Relief for end-users who use physical contracts with volumetric optionality Section 1a(48)(B)(ii) of the Commodity Exchange Act ( 7 U.S.C. 1a(47)(B)(ii) (ii) any purchase or sale of a nonfinancial commodity or security for deferred shipment or delivery, so long as the transaction is intended to be physically settled, including any stand-alone or embedded option for which exercise results in a physical delivery obligation; . 310. Commission vote required before automatic change of swap dealer de minimis level Section 1a(50)(D) of the Commodity Exchange Act ( 7 U.S.C. 1a(49)(D) (1) by striking all that precedes shall exempt (D) Exception (i) In general The Commission ; and (2) by adding after and below the end the following new clause: (ii) De minimis quantity The de minimis quantity of swap dealing described in clause (i) shall be set at a quantity of $8,000,000,000, and may be amended or changed only through a new affirmative action of the Commission undertaken by rule or regulation. . 311. Capital requirements for non-bank swap dealers (a) Commodity exchange act Section 4s(e) of the Commodity Exchange Act ( 7 U.S.C. 6s(e) (1) in paragraph (2)(B), by inserting in consultation with the prudential regulators and the Securities and Exchange Commission shall (2) in paragraph (3)(D)— (A) in clause (ii), by striking shall, to the maximum extent practicable, shall (B) by adding at the end the following: (iii) Financial models To the extent that swap dealers and major swap participants that are banks are permitted to use financial models approved by the prudential regulators or the Securities and Exchange Commission to calculate minimum capital requirements and minimum initial and variation margin requirements, including the use of non-cash collateral, the Commission shall, in consultation with the prudential regulators and the Securities and Exchange Commission, permit the use of comparable financial models by swap dealers and major swap participants that are not banks. . 312. Harmonization with the Jumpstart Our Business Startups Act Within 90 days after the date of the enactment of this Act, the Commodity Futures Trading Commission shall— (1) revise section 4.7(b) of title 17, Code of Federal Regulations, in the matter preceding paragraph (1), to read as follows: (b) Relief available to commodity pool operators. Upon filing the notice required by paragraph (d) of this section, and subject to compliance with the conditions specified in paragraph (d) of this section, any registered commodity pool operator who sells participations in a pool solely to qualified eligible persons in an offering which qualifies for exemption from the registration requirements of the Securities Act pursuant to section 4(2) of that Act or pursuant to Regulation S, 17 CFR 230.901 et seq., and any bank registered as a commodity pool operator in connection with a pool that is a collective trust fund whose securities are exempt from registration under the Securities Act pursuant to section 3(a)(2) of that Act and are sold solely to qualified eligible persons, may claim any or all of the following relief with respect to such pool: ; and (2) revise section 4.13(a)(3)(i) of such title to read as follows: (i) Interests in the pool are exempt from registration under the Securities Act of 1933, and such interests are offered and sold pursuant to section 4 of the Securities Act of 1933 and the regulations thereunder; . 313. Bona fide hedge defined to protect end-user risk management needs Section 4a(c) of the Commodity Exchange Act ( 7 U.S.C. 6a(c) (1) in paragraph (1)— (A) by striking may shall (B) by striking future for which future, to be determined by the Commission, for which either an appropriate swap is available or (2) in paragraph (2)— (A) in the matter preceding subparagraph (A), by striking subsection (a)(2) position as paragraphs (2) and (5) of subsection (a) for swaps, contracts of sale for future delivery, or options on the contracts or commodities, a bona fide hedging transaction or position is (B) in subparagraph (A)(ii), by striking of risks or management of current or anticipated risks (3) by adding at the end the following: (3) The Commission may further define, by rule or regulation, what constitutes a bona fide hedging transaction, provided that the rule or regulation is consistent with the requirements of subparagraphs (A) and (B) of paragraph (2). . 314. Cross-border regulation of derivatives transactions (a) Rulemaking required Within 1 year after the date of the enactment of this Act, the Commodity Futures Trading Commission shall issue a rule that addresses— (1) the nature of the connections to the United States that require a non-U.S. person to register as a swap dealer or a major swap participant under the Commodity Exchange Act and the regulations issued under such Act; (2) which of the United States swaps requirements apply to the swap activities of non-U.S. persons and U.S. persons and their branches, agencies, subsidiaries, and affiliates outside of the United States, and the extent to which the requirements apply; and (3) the circumstances under which a U.S. person or non-U.S. person in compliance with the swaps regulatory requirements of a foreign jurisdiction shall be exempt from United States swaps requirements. (b) Content of the rule (1) Criteria In the rule, the Commission shall establish criteria for determining that 1 or more categories of the swaps regulatory requirements of a foreign jurisdiction are comparable to and as comprehensive as United States swaps requirements. The criteria shall include— (A) the scope and objectives of the swaps regulatory requirements of the foreign jurisdiction; (B) the effectiveness of the supervisory compliance program administered; (C) the enforcement authority exercised by the foreign jurisdiction; and (D) such other factors as the Commission, by rule, determines to be necessary or appropriate in the public interest. (2) Comparability In the rule, the Commission shall— (A) provide that any non-U.S. person or any transaction between two non-U.S. persons shall be exempt from United States swaps requirements if the person or transaction is in compliance with the swaps regulatory requirements of a foreign jurisdiction which the Commission has determined to be comparable to and as comprehensive as United States swaps requirements; and (B) set forth the circumstances in which a U.S. person or a transaction between a U.S. person and a non-U.S. person shall be exempt from United States swaps requirements if the person or transaction is in compliance with the swaps regulatory requirements of a foreign jurisdiction which the Commission has determined to be comparable to and as comprehensive as United States swaps requirements. (3) Outcomes-based comparison In developing and applying the criteria, the Commission shall emphasize the results and outcomes of, rather than the design and construction of, foreign swaps regulatory requirements. (4) Risk-based rulemaking In the rule, the Commission shall not take into account, for the purposes of determining the applicability of United States swaps requirements, the location of personnel that arrange, negotiate, or execute swaps. (5) No part of any rulemaking under this section shall limit the Commission’s antifraud or antimanipulation authority. (c) Application of the rule (1) Assessments of foreign jurisdictions Beginning on the date on which a final rule is issued under this section, the Commission shall begin to assess the swaps regulatory requirements of foreign jurisdictions, in the order the Commission determines appropriate, in accordance with the criteria established pursuant to subsection (b)(1). Following each assessment, the Commission shall determine, by rule or by order, whether the swaps regulatory requirements of the foreign jurisdiction are comparable to and as comprehensive as United States swaps requirements. (2) Substituted compliance for unassessed major markets Beginning 18 months after the date of enactment of this Act— (A) the swaps regulatory requirements of each of the 8 foreign jurisdictions with the largest swaps markets, as calculated by notional value during the 12-month period ending with such date of enactment, except those with respect to which a determination has been made under paragraph (1), shall be considered to be comparable to and as comprehensive as United States swaps requirements; and (B) a non-U.S. person or a transaction between 2 non-U.S. persons shall be exempt from United States swaps requirements if the person or transaction is in compliance with the swaps regulatory requirements of any of such unexcepted foreign jurisdictions. (3) Suspension of substituted compliance If the Commission determines, by rule or by order, that— (A) the swaps regulatory requirements of a foreign jurisdiction are not comparable to and as comprehensive as United States swaps requirements, using the categories and criteria established under subsection (b)(1); (B) the foreign jurisdiction does not exempt from its swaps regulatory requirements U.S. persons who are in compliance with United States swaps requirements; or (C) the foreign jurisdiction is not providing equivalent recognition of, or substituted compliance for, registered entities (as defined in section 1a(41) of the Commodity Exchange Act) domiciled in the United States, the Commission may suspend, in whole or in part, a determination made under paragraph (1) or a consideration granted under paragraph (2). (d) Petition for review of foreign jurisdiction practices A registered entity, commercial market participant (as defined in section 1a(7) of the Commodity Exchange Act), or Commission registrant (within the meaning of such Act) who petitions the Commission to make or change a determination under subsection (c)(1) or (c)(3) of this section shall be entitled to expedited consideration of the petition. A petition shall include any evidence or other supporting materials to justify why the petitioner believes the Commission should make or change the determination. Petitions under this section shall be considered by the Commission any time following the enactment of this Act. Within 180 days after receipt of a petition for a rulemaking under this section, the Commission shall take final action on the petition. Within 90 days after receipt of a petition to issue an order or change an order issued under this section, the Commission shall take final action on the petition. (e) Report to congress If the Commission makes a determination described in this section through an order, the Commission shall articulate the basis for the determination in a written report published in the Federal Register and transmitted to the Committee on Agriculture of the House of Representatives and Committee on Agriculture, Nutrition, and Forestry of the Senate within 15 days of the determination. The determination shall not be effective until 15 days after the committees receive the report. (f) Definitions As used in this Act and for purposes of the rules issued pursuant to this Act, the following definitions apply: (1) U.S. person The term U.S. person (A) means— (i) any natural person resident in the United States; (ii) any partnership, corporation, trust, or other legal person organized or incorporated under the laws of the United States or having its principal place of business in the United States; (iii) any account (whether discretionary or non-discretionary) of a U.S. person; and (iv) any other person as the Commission may further define to more effectively carry out the purposes of this section; and (B) does not include the International Monetary Fund, the International Bank for Reconstruction and Development, the Inter-American Development Bank, the Asian Development Bank, the African Development Bank, the United Nations, their agencies or pension plans, or any other similar international organizations or their agencies or pension plans. (2) United states swaps requirements The term United States swaps requirements 7 U.S.C. 1a et seq. 15 U.S.C. 8301 et seq. (3) Foreign jurisdiction The term foreign jurisdiction (4) Swaps regulatory requirements The term swaps regulatory requirements (g) Conforming amendment Section 4(c)(1)(A) of the Commodity Exchange Act ( 7 U.S.C. 6(c)(1)(A) or except as necessary to effectuate the purposes of the Commodity End-User Relief Act, to grant exemptions, 315. Exemption of qualified charitable organizations from designation and regulation as commodity pool operators (a) Exclusion from definition of commodity pool Section 1a(11) of the Commodity Exchange Act ( 7 U.S.C. 1a(10) (C) Exclusion The term commodity pool investment company . (b) Inapplicability of prohibition on use of instrumentalities of interstate commerce by unregistered commodity trading advisor Section 4m of such Act ( 7 U.S.C. 6m (1) in paragraph (1), in the 2nd sentence, by inserting : Provided further investment company investment company (2) by adding at the end the following: (4) Disclosure concerning excluded charitable organizations The operator of or advisor to any investment trust, syndicate, or similar form of enterprise excluded from the definition of commodity pool . 316. Small bank holding company clearing exemption Section 2(h)(7)(C) of the Commodity Exchange Act ( 7 U.S.C. 2(h)(7)(C) (iv) Holding companies A determination made by the Commission under clause (ii) shall, with respect to small banks and savings associations, also apply to their respective bank holding company (as defined in section 2 of the Bank Holding Company Act of 1956), or savings and loan holding company (as defined in section 10 of the Home Owners’ Loan Act of 1933)), if the total consolidated assets of the holding company are no greater than the asset threshold set by the Commission in determining small bank and savings association eligibility under clause (ii). . 317. Core principle certainty Section 5h(f) of the Commodity Exchange Act ( 7 U.S.C. 7b–3(f) (1) in paragraph (1)(B), by inserting except as described in this subsection Commission by rule or regulation (2) in paragraph (2), by amending subparagraph (D) to read as follows: (D) have reasonable discretion in establishing and enforcing its rules related to trade practice surveillance, market surveillance, real-time marketing monitoring, and audit trail given that a swap execution facility may offer a trading system or platform to execute or trade swaps through any means of interstate commerce. A swap execution facility shall be responsible for monitoring trading in swaps only on its own facility. ; (3) in paragraph (4)(B), by adding at the end the following: A swap execution facility shall be responsible for monitoring trading in swaps only on its own facility. (4) in paragraph (6)(B)— (A) by striking shall— compliance with the shall monitor the trading activity on its facility for compliance with any (B) by adding at the end the following: A swap execution facility shall be responsible for monitoring positions only on its own facility. (5) in paragraph (8), by striking to liquidate to suspend or curtail trading in a swap on its own facility. (6) in paragraph (13)(B), by striking cover the operating costs of the swap execution facility for a 1-year period, as calculated on a rolling basis conduct an orderly wind-down of its operations (7) in paragraph (15)— (A) in subparagraph (A), by adding at the end the following: The individual may also perform other responsibilities for the swap execution facility. (B) in subparagraph (B)— (i) in clause (i), by inserting , a committee of the board, directly to the board (ii) by striking clauses (iii) through (v) and inserting the following: (iii) establish and administer policies and procedures that are reasonably designed to resolve any conflicts of interest that may arise; (iv) establish and administer policies and procedures that reasonably ensure compliance with this Act and the rules and regulations issued under this Act, including rules prescribed by the Commission pursuant to this section; and ; and (iii) by redesignating clause (vi) as clause (v); (C) in subparagraph (C), by striking (B)(vi) (B)(v) (D) in subparagraph (D)— (i) in clause (i)— (I) by striking In accordance with rules prescribed by the Commission, the The (II) by striking and sign (ii) in clause (ii)— (I) in the matter preceding subclause (I), by inserting or senior officer officer (II) by amending subclause (I) to read as follows: (I) submit each report described in clause (i) to the Commission; and ; and (III) in subclause (II), by inserting materially accurate 318. Treatment of Federal Home Loan Bank products Section 1a(2) of the Commodity Exchange Act ( 7 U.S.C. 1a(2) (1) in subparagraph (B), by striking and (2) in subparagraph (C), by striking the period and inserting ; and (3) by adding at the end the following: (D) is the Federal Housing Finance Agency for any Federal Home Loan Bank (as defined in section 2 of the Federal Home Loan Bank Act). . 319. Treatment of certain funds (a) Amendment to the definition of commodity pool operator Section 1a(12) of the Commodity Exchange Act ( 7 U.S.C. 1a(11) (C) (i) The term commodity pool operator (ii) For purposes of this subparagraph only, the term financial commodity interest (iii) For purposes of this subparagraph only, the term commodity . (b) Amendment to the definition of commodity trading advisor Section 1a(13) of such Act ( 7 U.S.C. 1a(12) (E) The term commodity trading advisor commodity . IV TECHNICAL CORRECTIONS 401. Correction of references (a) Section 2(h)(8)(A)(ii) of the Commodity Exchange Act ( 7 U.S.C. 2(h)(8)(A)(ii) 5h(f) of this Act 5h(g) (b) Section 5c(c)(5)(C)(i) of such Act ( 7 U.S.C. 7a-2(c)(5)(C)(i) 1a(2)(i)) 1a(19)(i)) (c) Section 23(f) of such Act ( 7 U.S.C. 26(f) section 7064 section 706 402. Elimination of obsolete references to dealer options (a) In general Section 4c of the Commodity Exchange Act ( 7 U.S.C. 6c (b) Conforming amendments (1) Section 2(d) of such Act ( 7 U.S.C. 2(d) (g) of (e) of (2) Section 4f(a)(4)(A)(i) of such Act ( 7 U.S.C. 6f(a)(4)(A)(i) , (d), (e), and (g) and (e) (3) Section 4k(5)(A) of such Act ( 7 U.S.C. 6k(5)(A) , (d), (e), and (g) and (e) (4) Section 5f(b)(1)(A) of such Act ( 7 U.S.C. 7b-1(b)(1)(A) , (e) and (g) and (e) (5) Section 9(a)(2) of such Act ( 7 U.S.C. 13(a)(2) through (e) and (c) 403. Updated trade data publication requirement Section 4g(e) of the Commodity Exchange Act ( 7 U.S.C. 6g(e) exchange each designated contract market and swap execution facility 404. Flexibility for registered entities Section 5c(b) of the Commodity Exchange Act ( 7 U.S.C. 7a-2(b) contract market, derivatives transaction execution facility, or electronic trading facility registered entity 405. Elimination of obsolete references to electronic trading facilities (a) Section 1a(19)(A)(x) of the Commodity Exchange Act ( 7 U.S.C. 1a(18)(A)(x) (other than an electronic trading facility with respect to a significant price discovery contract) (b) Section 1a(41) of such Act ( 7 U.S.C. 1a(40) (1) by adding and (2) by striking all that follows “section 21” and inserting a period. (c) Section 4a(e) of such Act ( 7 U.S.C. 6a(e) (1) in the 1st sentence— (A) by striking or by any electronic trading facility (B) by striking or on an electronic trading facility (C) by striking or electronic trading facility (2) in the 2nd sentence, by striking or electronic trading facility with respect to a significant price discovery contract (d) Section 4g(a) of such Act ( 7 U.S.C. 6g(a) any significant price discovery contract traded or executed on an electronic trading facility or (e) Section 4i of such Act ( 7 U.S.C. 6i (1) by striking , or any significant price discovery contract traded or executed on an electronic trading facility or any agreement, contract, or transaction that is treated by a derivatives clearing organization, whether registered or not registered, as fungible with a significant price discovery contract (2) by striking or electronic trading facility (f) Section 6(b) of such Act ( 7 U.S.C. 8(b) or electronic trading facility (g) Section 12(e)(2) of such Act ( 7 U.S.C. 16(e)(2) in the case of— in the case of an agreement, contract, or transaction that is excluded from this Act under section 2(c) or 2(f) of this Act or title IV of the Commodity Futures Modernization Act of 2000, or exempted under section 4(c) of this Act (regardless of whether any such agreement, contract, or transaction is otherwise subject to this Act). 406. Elimination of obsolete reference to alternative swap execution facilities Section 5h(h) of the Commodity Exchange Act ( 7 U.S.C. 7b-3(h) alternative swap 407. Elimination of redundant references to types of registered entities Section 6b of the Commodity Exchange Act ( 7 U.S.C. 13a as set forth in sections 5 through 5c 408. Clarification of Commission authority over swaps trading Section 8a of the Commodity Exchange Act ( 7 U.S.C. 12a (1) in paragraph (7)— (A) by inserting the protection of swaps traders and to assure fair dealing in swaps, for appropriate for (B) in subparagraph (A), by inserting swaps or conditions in (C) in subparagraph (B), by inserting or swaps future delivery (2) in paragraph (9)— (A) by inserting swap or or liquidation of any (B) by inserting swap or margin levels on any 409. Elimination of obsolete reference to the Commodity Exchange Commission Section 13(c) of the Commodity Exchange Act ( 7 U.S.C. 13c(c) or the Commission 410. Elimination of obsolete references to derivative transaction execution facilities (a) Section 1a(13)(B)(vi) of the Commodity Exchange Act ( 7 U.S.C. 1a(12)(B)(vi) derivatives transaction execution facility swap execution facility (b) Section 1a(35) of such Act ( 7 U.S.C. 1a(34) or derivatives transaction execution facility (c) Section 1a(36)(B)(iii)(I) of such Act ( 7 U.S.C. 1a(35)(B)(iii)(I) or registered derivatives transaction execution facility (d) Section 2(a)(1)(C)(ii) of such Act ( 7 U.S.C. 2(a)(1)(C)(ii) (1) by striking , or register a derivatives transaction execution facility that trades or executes, (2) by striking , and no derivatives transaction execution facility shall trade or execute such contracts of sale (or options on such contracts) for future delivery (3) by striking or the derivatives transaction execution facility, (e) Section 2(a)(1)(C)(v)(I) of such Act ( 7 U.S.C. 2(a)(1)(C)(v)(I) , or any derivatives transaction execution facility on which such contract or option is traded, (f) Section 2(a)(1)(C)(v)(II) of such Act ( 7 U.S.C. 2(a)(1)(C)(v)(II) or derivatives transaction execution facility (g) Section 2(a)(1)(C)(v)(V) of such Act ( 7 U.S.C. 2(a)(1)(C)(v)(V) or registered derivatives transaction execution facility (h) Section 2(a)(1)(D)(i) of such Act ( 7 U.S.C. 2(a)(1)(D)(i) (1) by striking in, or register a derivatives transaction execution facility (2) by striking , or registered as a derivatives transaction execution facility for, (i) Section 2(a)(1)(D)(i)(IV) of such Act ( 7 U.S.C. 2(a)(1)(D)(i)(IV) registered derivatives transaction execution facility, (j) Section 2(a)(1)(D)(ii)(I) of such Act ( 7 U.S.C. 2(a)(1)(D)(ii)(I) (I) the transaction is conducted on or subject to the rules of a board of trade that has been designated by the Commission as a contract market in such security futures product; or . (k) Section 2(a)(1)(D)(ii)(II) of such Act ( 7 U.S.C. 2(a)(1)(D)(ii)(II) or registered derivatives transaction execution facility (l) Section 2(a)(1)(D)(ii)(III) of such Act ( 7 U.S.C. 2(a)(1)(D)(ii)(III) or registered derivatives transaction execution facility member (m) Section 2(a)(9)(B)(ii) of such Act ( 7 U.S.C. 2(a)(9)(B)(ii) (1) by striking or registration (2) by striking or derivatives transaction execution facility (3) by striking or register (4) by striking , registering, (5) by striking , registration, (n) Section 2(c)(2) of such Act ( 7 U.S.C. 2(c)(2) or a derivatives transaction execution facility (o) Section 4(a)(1) of such Act ( 7 U.S.C. 6(a)(1) or derivatives transaction execution facility (p) Section 4(c)(1) of such Act ( 7 U.S.C. 6(c)(1) (1) by striking or registered designated (2) by striking or derivatives transaction execution facility (q) Section 4a(a)(1) of such Act ( 7 U.S.C. 6a(a)(1) (1) by striking or derivatives transaction execution facilities (2) by striking or derivatives transaction execution facility (r) Section 4a(e) of such Act ( 7 U.S.C. 6a(e) (1) by striking , derivatives transaction execution facility, (2) by striking or derivatives transaction execution facility (s) Section 4c(e) of such Act ( 7 U.S.C. 6c(g) or derivatives transaction execution facility (t) Section 4d of such Act ( 7 U.S.C. 6d or derivatives transaction execution facility (u) Section 4e of such Act ( 7 U.S.C. 6e or derivatives transaction execution facility (v) Section 4f(b) of such Act ( 7 U.S.C. 6f(b) or derivatives transaction execution facility (w) Section 4i of such Act ( 7 U.S.C. 6i or derivatives transaction execution facility (x) Section 4j(a) of such Act ( 7 U.S.C. 6j(a) and registered derivatives transaction execution facility (y) Section 4p(a) of such Act ( 7 U.S.C. 6p(a) , or derivatives transaction execution facilities (z) Section 4p(b) of such Act ( 7 U.S.C. 6p(b) derivatives transaction execution facility, (aa) Section 5c(f) of such Act ( 7 U.S.C. 7a-2(f) and registered derivatives transaction execution facility (bb) Section 5c(f)(1) of such Act ( 7 U.S.C. 7a-2(f)(1) or registered derivatives transaction execution facility (cc) Section 6 of such Act ( 7 U.S.C. 8 (1) by striking or registered (2) by striking or derivatives transaction execution facility (3) by striking or registration (dd) Section 6a(a) of such Act ( 7 U.S.C. 10a(a) (1) by striking or registered (2) by striking or a derivatives transaction execution facility (3) by inserting shall exclude (ee) Section 6a(b) of such Act ( 7 U.S.C. 10a(b) (1) by striking or registered (2) by striking or a derivatives transaction execution facility (ff) Section 6d(1) of such Act ( 7 U.S.C. 13a-2(1) derivatives transaction execution facility, 411. Elimination of obsolete references to exempt boards of trade (a) Section 1a(19)(A)(x) of the Commodity Exchange Act ( 7 U.S.C. 1a(18)(A)(x) (b) Section 12(e)(1)(B)(i) of such Act ( 7 U.S.C. 16(e)(1)(B)(i) 412. Elimination of report due in 1986 Section 26 of the Futures Trading Act of 1978 ( 7 U.S.C. 16a 413. Compliance report flexibility Section 4s(k)(3)(B) of the Commodity Exchange Act ( 7 U.S.C. 6s(k)(3)(B) (B) Requirements A compliance report under subparagraph (A) shall— (i) include a certification that, under penalty of law, the compliance report is materially accurate and complete; and (ii) be furnished at such time as the Commission determines by rule, regulation, or order, to be appropriate. . 414. Miscellaneous corrections (a) Section 1a(13)(A)(i)(II) of the Commodity Exchange Act ( 7 U.S.C. 1a(12)(A)(i)(II) (b) Section 2(a)(1)(C)(ii)(III) of such Act ( 7 U.S.C. 2(a)(1)(C)(ii)(III) (c) Section 2(a)(1)(C)(iii) of such Act ( 7 U.S.C. 2(a)(1)(C)(iii) (d) Section 2(a)(1)(C)(iv) of such Act ( 7 U.S.C. 2(a)(1)(C)(iv) under or under (e) Section 2(a)(1)(C)(v) of such Act ( 7 U.S.C. 2(a)(1)(C)(v) (f) Section 2(a)(1)(C)(v)(VI) of such Act ( 7 U.S.C. 2(a)(1)(C)(v)(VI) III (III) (g) Section 2(c)(1) of such Act ( 7 U.S.C. 2(c)(1) (h) Section 4(c)(3)(H) of such Act ( 7 U.S.C. 6(c)(3)(H) state State (i) Section 4c(c) of such Act ( 7 U.S.C. 6c(c) (c) The Commission shall issue regulations to continue to permit the trading of options on contract markets under such terms and conditions that the Commission from time to time may prescribe. . (j) Section 4d(b) of such Act ( 7 U.S.C. 6d(b) paragraph (2) of this section subsection (a)(2) (k) Section 4f(c)(3)(A) of such Act ( 7 U.S.C. 6f(c)(3)(A) (l) Section 4f(c)(4)(A) of such Act ( 7 U.S.C. 6f(c)(4)(A) in developing In developing (m) Section 4f(c)(4)(B) of such Act ( 7 U.S.C. 6f(c)(4)(B) 1817(a) 1817(a)) (n) Section 5 of such Act ( 7 U.S.C. 7 (o) Section 5b of such Act ( 7 U.S.C. 7a-1 (p) Section 5f(b)(1) of such Act ( 7 U.S.C. 7b-1(b)(1) section 5f this section (q) Section 6(a) of such Act ( 7 U.S.C. 8(a) the the the (r) Section 8a of such Act ( 7 U.S.C. 12a Investors Investor (s) Section 9(a)(2) of such Act ( 7 U.S.C. 13(a)(2) subsection 4c section 4c (t) Section 12(b)(4) of such Act ( 7 U.S.C. 16(b)(4) (u) Section 14(a)(2) of such Act ( 7 U.S.C. 18(a)(2) (v) Section 17(b)(9)(D) of such Act ( 7 U.S.C. 21(b)(9)(D) (w) Section 17(b)(10)(C)(ii) of such Act ( 7 U.S.C. 21(b)(10)(C)(ii) and (x) Section 17(b)(11) of such Act ( 7 U.S.C. 21(b)(11) (y) Section 17(b)(12) of such Act ( 7 U.S.C. 21(b)(12) (1) by striking (A) (2) by striking the period and inserting ; and (z) Section 17(b)(13) of such Act ( 7 U.S.C. 21(b)(13) A a (aa) Section 17 of such Act ( 7 U.S.C. 21 Public Law 97–444 (bb) Section 22(b)(3) of such Act ( 7 U.S.C. 25(b)(3) of registered of a registered (cc) Section 22(b)(4) of such Act ( 7 U.S.C. 25(b)(4) entity May 29, 2015 Committed to the Committee of the Whole House on the State of the Union and ordered to be printed

Summary: Commodity End User Relief Act TITLE I--CUSTOMER PROTECTIONS (Sec. 101) Amends the Commodity Exchange Act (CEA) to direct registered futures associations (RFAs) to require their futures commission merchant (FCM) members to: maintain written policies and procedures governing maintenance of members&rsquo; specified residual interests in customer segregated funds accounts, including cleared swaps customer collateral accounts; establish rules governing the withdrawal, transfer, or disbursement of a member's residual interest in customer segregated funds, in foreign futures and foreign options customer secured amount funds, and from a cleared swaps customer collateral; use an electronic system or systems to report financial and operational information to the RFA or another RFA-designated party; and instruct each depository, including any bank, trust company, derivatives clearing organization, or futures commission merchant holding customer segregated funds, foreign futures and foreign options customer secured amount funds, or cleared swap customer funds to report balances in such funds to the RFA or or another RFA-designated party. (Sec. 103) Requires any FCM that has adjusted net capital in an amount less than required by regulations of the Commodity Futures Trading Commission (CFTC) or of a self-regulatory organization to notify the CFTC and the self-regulatory organization. Requires any FCM that does not hold a sufficient amount of funds in segregated accounts for futures customers, in foreign futures and foreign options secured amount accounts for those customers, or in segregated accounts for cleared swap customers to notify the CFTC and the self-regulatory organization immediately. (Sec. 104) Declares that any rules or regulations requiring an FCM to maintain a residual interest in accounts held for the benefit of customers in amounts at least sufficient to exceed the sum of all the customers' uncollected margin deficits shall require an FCM to meet its residual interest requirement as of the end of each business day calculated as of the close of business on the previous business day. (Sec. 105) Authorizes the CFTC to require that property of the bankruptcy estate, including trading or operating accounts and commodities held in inventory, of a commodity broker who is a Chapter 7 debtor in bankruptcy be included in customer property to the extent that such property is insufficient to satisfy the net equity claims of the broker's public customers. TITLE II--COMMODITY FUTURES TRADING COMMISSION REFORMS (Sec. 201) Extends authority for CFTC operations through FY2019. Sec. 202) Amends the CEA to revise the requirement that the CFTC, before promulgating a regulation or issuing an order, consider the costs and benefits of the action. Requires a court to affirm a CFTC assessment of costs and benefits unless it is found to be an abuse of discretion. (Sec. 203) Declares that the heads of the CFTC administrative units shall serve at the pleasure of the CFTC. (Sec. 204) Establishes in the CFTC the Office of the Chief Economist. Expresses the sense of Congress that the CFTC should encourage applications from members of minority groups, women, disabled persons, and veterans for positions in the Office of the Chief Economist. (Sec. 205) Directs the CFTC to develop and publish internal procedures governing the issuance by any CFTC division or office of any response to a formal, written request or petition from any member of the public for an exemptive, a no-action, or an interpretive letter. Requires these procedures to involve sufficient notice to the CFTC to review the matter before its issuance. (Sec. 206) Requires the CFTC to submit every five years to certain congressional committees a detailed strategic technology plan focused upon technology acquisition and use, including a plan of action to address known information security vulnerability, and specific deadlines to address such vulnerability. (Sec. 207) Requires the CFTC to develop comprehensive internal risk control mechanisms to safeguard and govern the storage of all market data, including CFTC market data sharing agreements, and academic research performed at the CFTC using market data. (Sec. 208) Prohibits any indefinite duration to an omnibus order of investigation authorizing one or more CFTC members or staff to issue subpoenas to multiple persons in relation to a particular subject matter area. Limits to the CFTC the authority to renew such an order. (Sec. 209) Applies the notice and comment requirements of the Administrative Procedure Act to guidance, including interpretive rules, general policy statements, or CFTC rules of organization, procedure, or practice, voted on by the CFTC. (Sec. 210) Prescribes guidelines for judicial review of CFTC rules. (Sec. 211) Directs the Government Accountability Office (GAO) to: assess whether CFTC resources are sufficient to enable the CFTC to carry out its duties effectively; and examine prior CFTC expenditures on hardware, software, and analytical processes to protect customers in the areas of market surveillance and risk detection, and market data collection, aggregation, interpretation, standardization, harmonization, streamlining, and oversight and compliance work by market participants and regulators. (Sec. 212) Declares that, although the CFTC may not be compelled to disclose proprietary information provided to it, neither is it authorized to withhold information from Congress, nor is it prevented from complying with a request from a federal, state, local, or foreign governmental or judicial entity request for information within the scope of such entity's jurisdiction, subject to an agreement of confidentiality to protect the information. (Sec. 213) Requires the CFTC to report to Congress on the status of: any review of a registration application submitted by a metals exchange, negotiations with foreign regulators regarding aluminum warehousing, consultations with all U.S. market participants, including major producers and consumers. TITLE III--END-USER RELIEF (Sec. 301) Revises the treatment of affiliate transactions that may be exempt from clearing requirements to authorize such an exemption only if an affiliate enters into a swap to hedge or mitigate the commercial risk of the person that is not a financial entity (as under current law). Requires utilization of an appropriate credit support measure or other mechanism if the transfer of commercial risk is addressed by entering into a swap with a swap dealer or major swap participant. Amends the Securities Exchange Act of 1934 to require the same treatment with respect to securities-based swaps. (Sec. 302) Amends the Commodity Exchange Act to repeal the prerequisite to the CFTC's sharing with a specified entity information on swaps cleared by derivatives clearing organizations that the entity agree to indemnify the CFTC for any expenses arising from litigation relating to that information. Repeals a similar prerequisite for information-sharing by a swap data depository. Requires a swap repository to make swap data available on a confidential basis to foreign authorities, and receive a written agreement from each entity stating that it shall abide by the confidentiality requirements relating to the information on swap transactions that is provided. Amends the Securities Exchange Act to apply the same requirement with respect to securities-based swap repositories. (Sec. 303) Prescribes reporting requirements for transactions in utility operations-related swaps. Requires the CFTC, in determining whether to exempt from designation as a swap dealer an entity that engages in a de minimis quantity of swap dealing, to treat a utility operations-related swap entered into with a utility special entity as if the entity were not a special entity. (Sec. 304) Defines &quot;utility special entity&quot; as a special entity, or any instrumentality, department, or corporation of or established by a state or political subdivision, that: owns or operates, or anticipates owning or operating, an electric or natural gas facility or an electric or natural gas operation; supplies, or anticipates supplying, natural gas and or electric energy to another utility special entity; has, or anticipates having, public service obligations under federal, state, or local law or regulation to deliver electric energy or natural gas service to customers; or is a federal power marketing agency. (Sec. 305) Defines &quot;utility operations-related swap&quot; as a swap that: is entered into by a utility to hedge or mitigate a commercial risk; is not a contract, agreement, or transaction based on, derived on, or referencing an interest rate, credit, equity, or currency asset class, or a metal, agricultural commodity, or crude oil or gasoline commodity of any grade (except as these are used for fuel for electric energy generation); and is associated with the generation, production, purchase, or sale of natural gas or electric energy, the supply of natural gas or electric energy to a utility, or the delivery of natural gas or electric energy service to utility customers, and meets certain other related criteria. (Sec. 306) Excludes from the definition of a financial entity subject to clearing requirements specified entities that are not supervised by a prudential regulator, yet are commercial market participants deemed to be a financial entity because they: (1) predominantly engage in physical delivery contracts; or (2) enter into swaps, contracts for future delivery, and other derivatives on behalf of, or to hedge or mitigate the commercial risk of affiliates that are not so supervised or described. (Sec. 307) Directs the CFTC to: provide by rule for the public reporting of swap transactions in illiquid markets that are not cleared and entered into by a non-financial entity that is hedging or mitigating commercial risk; and ensure that certain swap transaction information is publicly available no sooner than 30 days after the swap transaction has been executed, or at such later date as the CFTC determines appropriate to protect the identity of participants and positions in illiquid markets and to prevent the elimination or reduction of market liquidity. (Sec. 308) Sets forth recordkeeping requirements for a member of a designated contract market or a swap execution facility that is neither registered with the CFTC nor required to be so registered. (Sec. 309) Excludes from the definition of &ldquo;swap&rdquo; any purchase or sale of a nonfinancial commodity or security for deferred shipment or delivery, so long as the transaction is intended to be physically settled (as under current law). (Sec. 310) Requires a new affirmative CFTC rule or regulation in order to amend or reduce the de minimis quantity of swap dealing that is currently set at $8 billion. (Sec. 311) Amends the Commodity Exchange Act and the Securities Exchange Act to direct the CFTC and the Securities and Exchange Commission (SEC), respectively, to the extent that swap dealers and major swap participants, on the one hand, and securities-based swap dealers and major securities-swap participants, that are banks are permitted by the regulators, the SEC, or the CFTC to use approved financial models to calculate minimum capital requirements and minimum initial and variation margin requirements, including the use of non-cash collateral, to permit the use of comparable financial models by such dealers and participants that are not banks. (Sec. 312) Directs the CFTC to amend regulations regarding criteria that qualify certain registered commodity pool operators for exemption from requirements for specified risk disclosures, performance disclosures, periodic reporting, annual reporting, and recordkeeping. Alters one criterion for qualification for such exemptions currently granted to: (1) registered commodity pool operators who sell participations in a pool solely to qualified eligible persons in an offering which qualifies for exemption from the registration requirements of the Securities Act, and (2) certain banks registered as commodity pool operators in connection with a pool that is a collective trust fund whose securities are exempt from registration under the Securities Act. (Sec. 313) Authorizes the CFTC to define a bona fide hedging transaction, consistent with certain CEA requirements. (Sec. 314) Directs the CFTC to promulgate rules governing cross-border regulation of derivatives transactions. Considers the swaps regulatory requirements of certain foreign jurisdictions with the largest swaps markets to be comparable to and as comprehensive as those of the U.S. Exempts from U.S. swaps requirements either a non-U.S. person or a transaction between two non-U.S. persons if the person or transaction is in compliance with the swaps regulatory requirements of specified foreign jurisdictions. Authorizes the CFTC, however, to suspend its determination of foreign swaps regulatory comparability if the foreign jurisdiction is not providing equivalent recognition of, or substituted compliance for, registered entities domiciled in the United States. Provides for expedited CFTC consideration of a petition for review that is requested by either a registered entity, commercial market participant, or CFTC registrant with respect to a CFTC determination regarding foreign jurisdiction regulatory requirements. (Sec. 315) Excludes from the definition of &quot;commodity pool&quot; certain investment trusts and syndicates that are excluded from the definition of &quot;investment company&quot; under the Investment Company Act of 1940. Exempts certain qualified charitable organizations and their employees, acting within the scope of their employment or duties, from designation and regulation as commodity pool operators subject to registration requirements. (Sec. 316) States that any CFTC determination exempting a small bank or savings association from the treatment as a financial entity also applies to the bank's or association's holding company if the holding company's total consolidated assets do not exceed the asset threshold set by the CFTC for defining a small bank and savings association. (Sec. 317) Repeals the requirement that a swap execution facility provide by its rules that, when a swap dealer or major swap participant enters into or facilitates a swap subject to the mandatory clearing requirement, the swap dealer or major swap participant shall be responsible for compliance with a specified mandatory trading requirement. Grants a swap execution facility, instead, discretion in establishing and enforcing its rules concerning trade practice surveillance, market surveillance, real-time marketing monitoring, and audit trail given that a swap execution facility may offer a trading system or platform to execute or trade swaps through any means of interstate commerce. Makes a swap execution facility responsible for monitoring trading in swaps only on its own facility. Repeals the requirement that a swap execution facility set its position limitation at a level no higher than the CFTC limit. Makes a swap execution facility responsible for monitoring positions only on its own facility. Repeals swap execution facility authority, in an emergency, to liquidate or transfer open positions in any swap. Deems the financial resources of a swap execution facility to be adequate if the value of such resources exceeds the total amount that would enable the facility to cover its operating costs for a 90-day period, as calculated on a rolling basis, or (as under current law) conduct an orderly wind-down of its operations, whichever is greater. Requires the chief compliance officer of a swap execution facility to establish and administer policies and procedures that: (1) are designed to resolve potential conflicts of interest; and (2) ensure compliance with this Act and with rules prescribed by the CFTC. (Sec. 318) Makes the Federal Housing Finance Agency the appropriate federal banking agency for any Federal Home Loan Bank (thereby exempting any Federal Home Loan Bank loan from regulation as a swap). Amends the Legal Certainty for Bank Products Act of 2000 to define any Federal Home Loan Bank as a bank for purposes of its prohibitions and requirements. (Sec. 319) Excludes from the meaning of &quot;commodity pool operator&quot; any person who serves as an investment adviser to a registered investment company or its subsidiary, if the company or subsidiary invests, reinvests, owns, holds, or trades in commodity interests limited exclusively to financial commodity interests. Defines &quot;financial commodity interest' as a futures contract, an option on a futures contract, or a swap involving a commodity that is not an exempt commodity or an agricultural commodity, including any index of financial commodity interests, whether cash settled or involving physical delivery. Excludes from the meaning of this kind of &quot;commodity&quot; any security issued by a real estate investment trust, business development company, or issuer of asset-backed securities, including any index of such securities. Excludes from the definition of &quot;Commodity Trading Advisor&quot; any person who serves as an investment adviser to a registered investment company or its subsidiary, if the commodity trading advice relates only to a financial commodity interest. TITLE IV--TECHNICAL CORRECTIONS (Sec. 401) Makes technical and conforming corrections to the CEA. (Sec. 402) Eliminates obsolete references to dealer options. (Sec. 403) Requires each designated contract market and swap execution facility (under current law, the exchange) to publicize, each trading day, the volume of trading on each type of contract for the previous day and any other information the CFTC deems necessary in the public interest. (Sec. 405) Eliminates obsolete references to electronic trading facilities and alternative swap execution facilities. (Sec. 408) Authorizes the CFTC to alter or supplement rules of a registered entity if it finds that the entity has not made changes requested for the protection of swaps traders and to assure fair dealing in swaps. (Sec. 409) Eliminates obsolete references to the Commodity Exchange Commission, derivatives transaction execution facilities, and exempt boards of trade. (Sec. 413) Requires mandatory compliance reports to certify that they are materially accurate and complete (under current law, merely accurate and complete). Repeals the requirement that a compliance report accompany each appropriate financial report of the swap dealer or major swap participant required to be furnished to the CFTC. Requires the furnishing of a compliance report only at such time the CFTC determines by rule, regulation, or order, to be appropriate. (Sec. 414) Makes specified miscellaneous technical corrections to the CEA.