Vol. 77 Monday, No. 156 August 13, 2012 Part II Commodity Futures Trading Commission 17 CFR Part 1 Securities and Exchange Commission 17 CFR Parts 230, 240 and 241 Further Definition of ‘‘Swap,’’ ‘‘Security-Based Swap,’’ and ‘‘Security-Based Swap Agreement’’; Mixed Swaps; Security-Based Swap Agreement Recordkeeping; Final Rule VerDate Mar<15>2010 18:04 Aug 10, 2012 Jkt 226001 PO 00000 Frm 00001 Fmt 4717 Sfmt 4717 E:\FR\FM\13AUR2.SGM 13AUR2 mstockstill on DSK4VPTVN1PROD with RULES2 48208 Federal Register / Vol. 77, No. 156 / Monday, August 13, 2012 / Rules and Regulations COMMODITY FUTURES TRADING • CFTC Web Site: via its Comments 5870, Office of Compliance, Inspections COMMISSION Online process: http:// and Examinations, Securities and comments.cftc.gov. Follow the Exchange Commission, 100 F Street NE., 17 CFR Part 1 instructions for submitting comments Washington, DC 20549. RIN 3038–AD46 through the Web site. SUPPLEMENTARY INFORMATION: • Mail: Address to David A. Stawick, Table of Contents SECURITIES AND EXCHANGE Secretary of the Commission, COMMISSION Commodity Futures Trading I. Background Commission, Three Lafayette Centre, II. Scope of Definitions of Swap and Security- 17 CFR Parts 230, 240 and 241 1155 21st Street NW., Washington, DC Based Swap 20581. A. Introduction [Release No. 33–9338; 34–67453; File No. • Hand Delivery/Courier: Same as B. Rules and Interpretations Regarding S7–16–11] mail above. Certain Transactions outside the Scope • Federal eRulemaking Portal: http:// of the Definitions of the Terms ‘‘Swap’’ RIN 3235–AK65 and ‘‘Security-Based Swap’’ www.regulations.gov. Follow the 1. Insurance Products Further Definition of ‘‘Swap,’’ instructions for submitting comments. (a) Types of Insurance Products ‘‘Security-Based Swap,’’ and All comments must be submitted in (b) Providers of Insurance Products ‘‘Security-Based Swap Agreement’’; English or, if not, accompanied by an (c) Grandfather Provision for Existing Mixed Swaps; Security-Based Swap English translation. Comments will be Insurance Transactions Agreement Recordkeeping posted as received to http:// (d) Alternative Tests www.cftc.gov. You should submit only (e) ‘‘Safe Harbor’’ AGENCY: Commodity Futures Trading information that you wish to make (f) Applicability of Insurance Exclusion to Commission; Securities and Exchange available publicly. If you wish the CFTC Security-Based Swaps Commission. (g) Guarantees to consider information that is exempt 2. The Forward Contract Exclusion ACTION: Joint final rule; interpretations; from disclosure under the Freedom of (a) Forward Contracts in Nonfinancial request for comment on an Information Act, a petition for Commodities interpretation. confidential treatment of the exempt (i) Forward Exclusion From the Swap and information may be submitted according Future Delivery Definitions SUMMARY: In accordance with section to the procedures established in § 145.9 (ii) Nonfinancial Commodities 712(a)(8), section 712(d)(1), sections of the CFTC’s Regulations.1 (iii) Environmental Commodities 712(d)(2)(B) and (C), sections 721(b) and The CFTC reserves the right, but shall (iv) Physical Exchange Transactions (v) Fuel Delivery Agreements (c), and section 761(b) of the Dodd- have no obligation, to review, pre- Frank Wall Street Reform and Consumer (vi) Cleared/Exchange-Traded Forwards screen, filter, redact, refuse or remove (b) Commodity Options and Commodity Protection Act (‘‘Dodd-Frank Act’’), the any or all of your submission from Commodity Futures Trading Options Embedded in Forward Contracts http://www.cftc.gov that it may deem to (i) Commodity Options Commission (‘‘CFTC’’) and the be inappropriate for publication, such as (ii) Commodity Options Embedded in Securities and Exchange Commission obscene language. All submissions that Forward Contracts (‘‘SEC’’) (collectively, ‘‘Commissions’’), have been redacted or removed that (iii) Certain Physical Commercial in consultation with the Board of contain comments on the merits of the Agreements, Contracts or Transactions Governors of the Federal Reserve interpretation will be retained in the (iv) Effect of Interpretation on Certain System (‘‘Board’’), are jointly adopting Agreements, Contracts and Transactions public comment file and will be (v) Liquidated Damages Provisions new rules and interpretations under the considered as required under the Commodity Exchange Act (‘‘CEA’’) and (c) Security Forwards Administrative Procedure Act and other 3. Consumer and Commercial Agreements, the Securities Exchange Act of 1934 applicable laws, and may be accessible Contracts, and Transactions (‘‘Exchange Act’’) to further define the under the Freedom of Information Act. C. Final Rules and Interpretations terms ‘‘swap,’’ ‘‘security-based swap,’’ FOR FURTHER INFORMATION CONTACT: Regarding Certain Transactions Within and ‘‘security-based swap agreement’’ CFTC: Julian E. Hammar, Assistant the Scope of the Definitions of the Terms ‘‘Swap’’ and ‘‘Security-Based Swap’’ (collectively, ‘‘Product Definitions’’); General Counsel, at 202–418–5118, regarding ‘‘mixed swaps;’’ and 1. In General [email protected], Lee Ann Duffy, 2. Foreign Exchange Products governing books and records with Assistant General Counsel, at 202–418– respect to ‘‘security-based swap (a) Foreign Exchange Products Subject to 6763, [email protected]; Mark Fajfar, the Secretary’s Swap Determination: agreements.’’ The CFTC requests Assistant General Counsel, at 202–418– Foreign Exchange Forwards and Foreign comment on its interpretation 6636, [email protected], or David E. Exchange Swaps concerning forwards with embedded Aron, Counsel, at 202–418–6621, (b) Foreign Exchange Products Not Subject volumetric optionality, contained in [email protected], Office of General to the Secretary’s Swap Determination Section II.B.2.(b)(ii) of this release. Counsel, Commodity Futures Trading (i) Foreign Currency Options DATES: Effective date: October 12, 2012. (ii) Non-Deliverable Forward Contracts Commission, Three Lafayette Centre, Involving Foreign Exchange Compliance date: The applicable 1155 21st Street NW., Washington, DC compliance dates are discussed in the (iii) Currency Swaps and Cross-Currency 20581; SEC: Donna M. Chambers, Swaps section of the release titled ‘‘IX. Special Counsel, at 202–551–5870, or (c) Interpretation Regarding Foreign Effective Date and Implementation’’. John Guidroz, Attorney-Adviser, at 202– Exchange Spot Transactions Comment date: Comments on the 551–5870, Division of Trading and (d) Retail Foreign Currency Options interpretation regarding forwards with Markets, or Andrew Schoeffler, Special 3. Forward Rate Agreements embedded volumetric optionality must Counsel, at 202–551–3860, Office of 4. Combinations and Permutations of, or Options on, Swaps and Security-Based be received on or before October 12, Capital Markets Trends, Division of 2012. Swaps Corporation Finance, or Wenchi Hu, 5. Contracts for Differences ADDRESSES: You may submit comments, Senior Special Counsel, at 202–551– D. Certain Interpretive Issues identified by RIN number 3038–AD46, 1. Agreements, Contracts, or Transactions by any of the following methods: 1 17 CFR 145.9. That May Be Called, or Documented VerDate Mar<15>2010 18:04 Aug 10, 2012 Jkt 226001 PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 E:\FR\FM\13AUR2.SGM 13AUR2 mstockstill on DSK4VPTVN1PROD with RULES2 Federal Register / Vol. 77, No. 156 / Monday, August 13, 2012 / Rules and Regulations 48209 Using Form Contracts Typically Used IV. Mixed Swaps Providing for the registration and for, Swaps or Security-Based Swaps A. Scope of the Category of Mixed Swap comprehensive regulation of swap 2. Transactions in Regional Transmission B. Regulation of Mixed Swaps dealers, security-based swap dealers, Organizations and Independent System 1. Introduction Operators 2. Bilateral Uncleared Mixed Swaps major swap participants, and major III. The Relationship Between the Swap Entered Into by Dually-Registered security-based swap participants; (ii) Definition and the Security-Based Swap Dealers or Major Participants imposing clearing and trade execution Definition 3. Regulatory Treatment for Other Mixed requirements on swaps and security- A. Introduction Swaps based swaps, subject to certain B. Title VII Instruments Based on Interest V. Security-Based Swap Agreements Rates, Other Monetary Rates, and Yields A. Introduction exceptions; (iii) creating rigorous 1. Title VII Instruments Based on Interest B. Swaps That Are Security-Based Swap recordkeeping and real-time reporting Rates or Other Monetary Rates That Are Agreements regimes; and (iv) enhancing the Swaps C. Books and Records Requirements for rulemaking and enforcement authorities 2. Title VII Instruments Based on Yields Security-Based Swap Agreements of the Commissions with respect to, 3. Title VII Instruments Based on VI. Process for Requesting Interpretations of among others, all registered entities and Government Debt Obligations the Characterization of a Title VII C. Total Return Swaps Instrument intermediaries subject to the D. Security-Based Swaps Based on a Single VII. Anti-Evasion Commissions’ oversight. Security or Loan and Single-Name Credit A. CFTC Anti-Evasion Rules Section 712(d)(1) of the Dodd-Frank Default Swaps 1. CFTC’s Anti-Evasion Authority E. Title VII Instruments Based on Futures (a) Statutory Basis for the Anti-Evasion Act provides that the Commissions, in Contracts Rules consultation with the Board, shall F. Use of Certain Terms and Conditions in 2. Final Rules jointly further define the terms ‘‘swap,’’ Title VII Instruments (a) Rule