"Security-Based Swap Agreement"; Mixed Sw
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Corrected to Conform to Federal Register Version COMMODITY FUTURES TRADING COMMISSION 17 CFR Part 1 RIN 3038-AD46 SECURITIES AND EXCHANGE COMMISSION 17 CFR Part 240 Release No. 33-9204; 34-64372; File No. S7-16-11 RIN 3235-AL14 Further Definition of “Swap,” “Security-Based Swap,” and “Security-Based Swap Agreement”; Mixed Swaps; Security-Based Swap Agreement Recordkeeping AGENCIES: Commodity Futures Trading Commission; Securities and Exchange Commission. ACTION: Joint proposed rules; proposed interpretations. SUMMARY: In accordance with section 712(a)(8), section 712(d)(1), sections 712(d)(2)(B) and (C), sections 721(b) and (c), and section 761(b) of the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank Act”), the Commodity Futures Trading Commission (“CFTC”) and the Securities and Exchange Commission (“SEC”) (collectively, “Commissions”), in consultation with the Board of Governors of the Federal Reserve System (“Board”), are jointly issuing proposed rules and proposed interpretive guidance under the Commodity Exchange Act (“CEA”) and the Securities Exchange Act of 1934 (“Exchange Act”) to further define the terms “swap,” “security- based swap,” and “security-based swap agreement” (collectively, “Product Definitions”), regarding “mixed swaps,” and governing books and records with respect to “security- based swap agreements.” DATES: Comments should be received on or before July 22, 2011. ADDRESSES: Comments may be submitted, identified by File No. S7-16-11, by any of the following methods: CFTC: • Agency website, via its Comments Online process: http://comments.cftc.gov. Follow the instructions for submitting comments through the website. • Mail: David A. Stawick, Secretary, Commodity Futures Trading Commission, Three Lafayette Centre, 1155 21st Street, NW, Washington, DC 20581. • Hand Delivery/Courier: Same as mail above. • Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments. Please submit your comments using only one method. “Product Definitions” must be in the subject field of responses submitted via e-mail, and clearly indicated on written submissions. All comments must be submitted in English, or if not, accompanied by an English translation. Comments will be posted as received to www.cftc.gov. You should submit only information that you wish to make available publicly. If you wish the CFTC to consider information that you believe is exempt from disclosure under the Freedom of Information Act, a petition for confidential treatment of the exempt information may be submitted according to the procedures established in section 145.9 of the CFTC’s regulations.1 The CFTC reserves the right, but shall have no obligation, to review, pre-screen, filter, redact, refuse or remove any or all of your submission from www.cftc.gov that it 1 17 CFR 145.9. 2 may deem to be inappropriate for publication, including obscene language. All submissions that have been redacted or removed that contain comments on the merits of the rulemaking will be retained in the public comment file and will be considered as required under the Administrative Procedure Act and other applicable laws, and may be accessible under the Freedom of Information Act. SEC: Electronic comments: • Use the Commission’s Internet comment form (http://www.sec.gov/rules/proposed.shtml); • Send an e-mail to [email protected]. Please include File Number S7-16-11 on the subject line; or • Use the Federal eRulemaking Portal (http://www.regulations.gov). Follow the instructions for submitting comments. Paper comments: • Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street, NE, Washington, DC 20549-1090. All submissions should refer to File Number S7-16-11. This file number should be included on the subject line if e-mail is used. To help us process and review your comments more efficiently, please use only one method. The SEC will post all comments on the SEC’s Internet website (http://www.sec.gov/rules/proposed.shtml). Comments are also available for website viewing and printing in the SEC’s Public Reference Room, 100 F Street, NE, Washington, DC 20549, on official business days between the hours of 10:00 a.m. and 3:00 p.m. All comments received will be posted 3 without change; the SEC does not edit personal identifying information from submissions. You should submit only information that you wish to make available publicly. FOR FURTHER INFORMATION CONTACT: CFTC: Julian E. Hammar, Assistant General Counsel, at 202-418-5118, [email protected], Mark Fajfar, Assistant General Counsel, at 202-418-6636, [email protected], or David E. Aron, Counsel, at 202-418- 6621, [email protected], Office of General Counsel, Commodity Futures Trading Commission, Three Lafayette Centre, 1155 21st Street, NW, Washington, DC 20581; SEC: Matthew A. Daigler, Senior Special Counsel, at 202-551-5578, Cristie L. March, Attorney-Adviser, at 202-551-5574, or Leah M. Drennan, Attorney-Adviser, at 202-551- 5507, Division of Trading and Markets, or Michael J. Reedich, Special Counsel, or Tamara Brightwell, Senior Special Counsel to the Director, at 202-551-3500, Division of Corporation Finance, Securities and Exchange Commission, 100 F Street, NE, Washington, DC 20549-7010. SUPPLEMENTARY INFORMATION: The Commissions jointly are proposing new rules and interpretive guidance under the CEA and the Exchange Act relating to the Product Definitions, mixed swaps, and security-based swap agreements. 4 TABLE OF CONTENTS I. Background. II. Scope of Definitions of Swap and Security-Based Swap. A. Introduction. B. Proposed Rules and Interpretive Guidance Regarding Certain Transactions Outside the Scope of the Definitions of the Terms “Swap” and “Security- Based Swap.” 1. Insurance Products. a) Types of Insurance Products. b) Providers of Insurance Products. 2. The Forward Contract Exclusion. a) Forward Contracts in Nonfinancial Commodities. b) Commodity Options and Commodity Options Embedded in Forward Contracts. c) Security Forwards. 3. Consumer and Commercial Agreements, Contracts, and Transactions. 4. Loan Participations. C. Proposed Rules and Interpretive Guidance Regarding Certain Transactions Within the Scope of the Definitions of the Terms “Swap” and “Security- Based Swap.” 1. In General. 2. Foreign Exchange Products. a) Foreign Exchange Products Subject to the Secretary’s Swap Determination: Foreign Exchange Forwards and Foreign Exchange Swaps. b) Foreign Exchange Products Not Subject to the Secretary’s Swap Determination. i) Foreign Currency Options. ii) Non-Deliverable Forward Contracts Involving Foreign Exchange. iii) Currency Swaps and Cross-Currency Swaps. 3. Forward Rate Agreements. 4. Combinations and Permutations of, or Options on, Swaps and Security-Based Swaps. 5. Contracts for Differences. 5 D. Certain Interpretive Issues. 1. Agreements, Contracts, or Transactions That May Be Called, or Documented Using Form Contracts Typically Used for, Swaps or Security-Based Swaps. 2. Transactions in Regional Transmission Organizations and Independent System Operators. III. The Relationship Between the Swap Definition and the Security-Based Swap Definition. A. Introduction. B. Title VII Instruments Based on Interest Rates, Other Monetary Rates, and Yields. 1. Title VII Instruments Based on Interest Rates or Other Monetary Rates That are Swaps. 2. Title VII Instruments Based on Yields. 3. Title VII Instruments Based on Government Debt Obligations. C. Total Return Swaps. D. Security-Based Swaps Based on a Single Security or Loan and Single-Name Credit Default Swaps. E. Title VII Instruments Based on Futures Contracts. F. Use of Certain Terms and Conditions in Title VII Instruments. G. The Term “Narrow-Based Security Index” in the Security-Based Swap Definition. 1. Introduction. 2. Applicability of the Statutory Narrow-Based Security Index Definition and Past Guidance of the Commissions to Title VII Instruments. 3. Narrow-Based Security Index Criteria for Index Credit Default Swaps. a) In General. b) Proposed Rules Regarding the Definitions of “Issuers of Securities in a Narrow-Based Security Index” and “Narrow-Based Security Index” for Index Credit Default Swaps. i) Number and Concentration Percentages of Reference Entities or Securities. ii) Public Information Availability Regarding Reference Entities and Securities. 6 iii) Treatment of Indexes Including Reference Entities That Are Issuers of Exempted Securities or Including Exempted Securities. 4. Security Indexes. 5. Evaluation of Title VII Instruments on Security Indexes That Move from Broad-Based to Narrow-Based or Narrow-Based to Broad-Based. a) In General. b) Title VII Instruments on Security Indexes Traded on Designated Contract Markets, Swap Execution Facilities, Foreign Boards of Trade, Security-Based Swap Execution Facilities, and National Securities Exchanges. H. Method of Settlement of Index CDS. I. Security-Based Swaps as Securities under the Exchange Act and Securities Act. IV. Mixed Swaps. A. Scope of the Category of Mixed Swap. B. Regulation of Mixed Swaps. 1. Introduction. 2. Bilateral Uncleared Mixed Swaps Entered Into by Dually- Registered Dealers or Major Participants. 3. Regulatory Treatment for Other Mixed Swaps. V. Security-Based Swap Agreements. A. Introduction. B. Swaps that are Security-Based Swap Agreements. C. Books and Records Requirements for Security-Based Swap Agreements. VI. Process for Requesting Interpretations of the Characterization of a Title VII Instrument. VII. Anti-Evasion. A. CFTC Proposed