Swap Jurisdiction Certainty Act - (Sec. 2) Amends the Commodity Exchange Act regarding extra-territorial swap transactions between: (1) a registered swap dealer who is either a U.S. person or a person whose parent company is a U.S. person; and (2) a person who is a U.S. or non-U.S. subsidiary, branch, or affiliate of such swap dealer, or any other non-U.S. person not registered as a swap dealer.
Exempts swaps from regulation under the Wall Street Transparency and Accountability Act of 2010 (WSTAA) (title VII of the Dodd-Frank Wall Street Reform and Consumer Protection Act) as long as the swap dealer: (1) is either a U.S. person or a person whose parent company is a U.S. person, and (2) reports such swap to a swap data repository registered with the Commodity Futures Trading Commission (CFTC).
Subjects to WSTAA requirements any non-U.S. person that is a registered swaps dealer but only for swaps entered into with a U.S. person who is not a U.S. subsidiary, branch, or affiliate of that non-U.S. person.
Requires the CFTC to permit non-U.S. persons that are registered swaps dealers to comply with WSTAA capital requirements by complying with comparable requirements established by the appropriate governmental authorities in their respective home countries, so long as those home countries are signatories to the Basel Accords.
Subjects each registered swap dealer to any rules or regulations as the CFTC may prescribe or promulgate as are necessary or appropriate to prevent the evasion of any provision of the Commodity Exchange Act enacted by WSTAA.
(Sec. 3) Amends the Securities Exchange Act of 1934 regarding extra-territorial securities-based swap transactions between: (1) a registered securities-based swap dealer who is either a U.S. person or a person whose parent company is a U.S. person; and (2) a person who is a U.S. or non-U.S. subsidiary, branch, or affiliate of such securities-based swap dealer.
Exempts security-based swaps from regulation under WSTAA as long as the securities-based swap dealer: (1) is either a U.S. person or a person whose parent company is a U.S. person, and (2) reports such security-based swap to a securities-based swap data repository registered with a security-based swap data repository registered with the Securities and Exchange Commission (SEC).
Subjects to WSTAA requirements any non-U.S. person that is a registered security-based swaps dealer but only for security-based swaps entered into with a U.S. person who is not a U.S. subsidiary, branch, or affiliate of that non-U.S. person.
Requires the SEC to permit non-U.S. persons that are registered security-based swaps dealers to comply with WSTAA capital requirements by complying with comparable requirements established by the appropriate governmental authorities in their respective home countries, so long as those home countries are signatories to the Basel Accords.
Prohibits registered security-based swap dealers from conducting any activities designed to evade any provision of the Securities Exchange Act of 1934 enacted by WSTAA.
Declares that nothing in this section shall: (1) exempt a transaction from specified restrictions on member bank transactions with affiliates under the Federal Reserve Act or implementing regulations; or (2) affect the authorities of the prudential regulators over certain kinds of swap dealers, major swap participants, security-based swap dealers, or major security-based swap participants under the Commodity Excgange Act as such authorites are established in law other than under WSTAA
[Congressional Bills 112th Congress]
[From the U.S. Government Publishing Office]
[H.R. 3283 Introduced in House (IH)]
112th CONGRESS
1st Session
H. R. 3283
To amend the Commodity Exchange Act and the Securities Exchange Act of
1934 to provide an exemption for certain swaps and security-based swaps
involving non-U.S. persons, and for other purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
October 31, 2011
Mr. Himes (for himself and Mr. Garrett) introduced the following bill;
which was referred to the Committee on Financial Services, and in
addition to the Committee on Agriculture, for a period to be
subsequently determined by the Speaker, in each case for consideration
of such provisions as fall within the jurisdiction of the committee
concerned
_______________________________________________________________________
A BILL
To amend the Commodity Exchange Act and the Securities Exchange Act of
1934 to provide an exemption for certain swaps and security-based swaps
involving non-U.S. persons, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Swap Jurisdiction Certainty Act''.
SEC. 2. COMMODITY EXCHANGE ACT.
Section 4s(a) of the Commodity Exchange Act (7 U.S.C. 6s(a)) is
amended by adding at the end the following:
``(3) Extra-territorial swap transaction application of
title vii.--
``(A) In general.--A swap entered into between--
``(i) a swap dealer that is registered with
the Commission who is either--
``(I) a U.S. person, or
``(II) a person that has a parent
company that is a U.S. person, and
``(ii) a person who is--
``(I) a U.S. or non-U.S.
subsidiary, branch, or affiliate of
such swap dealer, or
``(II) any other non-U.S. person
that is not registered as a swap dealer
with the Commission,
shall not be subject to the provisions of title
VII of the Dodd-Frank Wall Street Reform and
Consumer Protection Act, and of amendments
added by such title, so long as each swap
dealer described under clause (i) reports such
swap to a swap data repository registered with
the Commission.
``(B) Swaps entered into by registered non-u.s.
persons.--
``(i) In general.--A non-U.S. person that
registers as a swap dealer with the Commission
shall only be subject to the requirements of
title VII of the Dodd-Frank Wall Street Reform
and Consumer Protection Act, and of amendments
added by such title, with respect to swaps that
such person enters into with a U.S. person who
is not a U.S. subsidiary, branch, or affiliate
of such non-U.S. person.
``(ii) Capital requirements.--A non-U.S.
person that registers as a swap dealer with the
Commission shall be permitted by the Commission
to comply with the capital requirements under
subsection (e) by complying with comparable
requirements established by the appropriate
governmental authorities in the home country of
the non-U.S. person, so long as such home
country is a signatory to the Basel Accords.
``(C) Non-U.S. person.--For purposes of this
paragraph, the term `non-U.S. person' includes--
``(i) any person that is not a U.S. person;
``(ii) any discretionary account or similar
account (other than an estate or trust) held
for the benefit or account of a non-U.S. person
by a dealer or other professional fiduciary
organized, incorporated, or (if an individual)
resident in the United States;
``(iii) any agency or branch of a U.S.
person located outside the United States if--
``(I) the agency or branch operates
for valid business reasons; and
``(II) the agency or branch is
engaged in the business of insurance or
banking and is subject to substantive
insurance or banking regulation,
respectively, in the jurisdiction where
it is located;
``(iv) any trust of which any professional
fiduciary acting as trustee is a U.S. person,
if--
``(I) a trustee who is a non-U.S.
person has sole or shared investment
discretion with respect to the trust
assets; and
``(II) no beneficiary of the trust
(and no settlor if the trust is
revocable) is a U.S. person;
``(v) an employee benefit plan established
and administered in accordance with the law,
customary practices, and documentation of a
country other than the United States; and
``(vi) 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, a central
bank or its functional equivalent which is
located in a non-U.S. jurisdiction and that is
a signatory to the Basel Accords, and their
agencies, affiliates and pension plans, and any
other similar international organizations,
their agencies, affiliates and pension plans.
``(D) U.S. person.--For purposes of this paragraph,
the term `U.S. person' includes--
``(i) any natural person resident in the
United States;
``(ii) any partnership or corporation
organized or incorporated under the laws of the
United States;
``(iii) any estate of which any executor or
administrator is a U.S. person;
``(iv) any trust of which any trustee is a
U.S. person;
``(v) any agency or branch of a foreign
entity located in the United States;
``(vi) any non-discretionary account or
similar account (other than an estate or trust)
held by a dealer or other fiduciary for the
benefit or account of a United States person;
``(vii) any discretionary account or
similar account (other than an estate or trust)
held by a dealer or other fiduciary organized,
incorporated, or (if an individual) resident in
the United States; and
``(viii) any partnership or corporation--
``(I) organized or incorporated
under the laws of any foreign
jurisdiction; and
``(II) formed by a U.S. person
principally for the purpose of
investing in securities not registered
under the Securities Act of 1933,
unless it is organized or incorporated,
and owned, by accredited investors (as
such term is defined under section
230.501 of title 17, Code of Federal
Regulations) that are not natural
persons, estates, or trusts.
``(E) Anti-evasion.--Notwithstanding any other
provision of this paragraph, each registered swap
dealer shall be subject to the provision under section
2(i)(2).''.
SEC. 3. SECURITIES EXCHANGE ACT OF 1934.
Section 15F(a) of the Securities Exchange Act of 1934 (78o-10(a))
is amended by adding at the end the following:
``(3) Extra-territorial swap transaction application of
title vii.--
``(A) In general.--A security-based swap entered
into between--
``(i) a security-based swap dealer that is
registered with the Commission who is either--
``(I) a U.S. person, or
``(II) a person that has a parent
company that is a U.S. person, and
``(ii) a person who is--
``(I) a U.S. or non-U.S.
subsidiary, branch, or affiliate of
such security-based swap dealer, or
``(II) any other non-U.S. person
that is not registered as a security-
based swap dealer with the Commission,
shall not be subject to the provisions of title
VII of the Dodd-Frank Wall Street Reform and
Consumer Protection Act, and of amendments
added by such title, so long as each security-
based swap dealer described under clause (i)
reports such security-based swap to a security-
based swap data repository registered with the
Commission.
``(B) Security-based swaps entered into by
registered non-u.s. persons.--
``(i) In general.--A non-U.S. person that
registers as a security-based swap dealer with
the Commission shall only be subject to the
requirements of title VII of the Dodd-Frank
Wall Street Reform and Consumer Protection Act,
and of amendments added by such title, with
respect to security-based swaps that such
person enters into with a U.S. person who is
not a U.S. subsidiary, branch, or affiliate of
such non-U.S. person.
``(ii) Capital requirements.--A non-U.S.
person that registers as a security-based swap
dealer with the Commission shall be permitted
by the Commission to comply with the capital
requirements under subsection (e) by complying
with comparable requirements established by the
appropriate governmental authorities in the
home country of the non-U.S. person, so long as
such home country is a signatory to the Basel
Accords.
``(C) Non-U.S. person.--For purposes of this
paragraph, the term `non-U.S. person' includes--
``(i) any person that is not a U.S. person;
``(ii) any discretionary account or similar
account (other than an estate or trust) held
for the benefit or account of a non-U.S. person
by a dealer or other professional fiduciary
organized, incorporated, or (if an individual)
resident in the United States;
``(iii) any agency or branch of a U.S.
person located outside the United States if--
``(I) the agency or branch operates
for valid business reasons; and
``(II) the agency or branch is
engaged in the business of insurance or
banking and is subject to substantive
insurance or banking regulation,
respectively, in the jurisdiction where
it is located;
``(iv) any trust of which any professional
fiduciary acting as trustee is a U.S. person,
if--
``(I) a trustee who is a non-U.S.
person has sole or shared investment
discretion with respect to the trust
assets; and
``(II) no beneficiary of the trust
(and no settlor if the trust is
revocable) is a U.S. person;
``(v) an employee benefit plan established
and administered in accordance with the law,
customary practices, and documentation of a
country other than the United States; and
``(vi) 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, a central
bank or its functional equivalent which is
located in a non-U.S. jurisdiction and that is
a signatory to the Basel Accords, and their
agencies, affiliates and pension plans, and any
other similar international organizations,
their agencies, affiliates and pension plans.
``(D) U.S. person.--For purposes of this paragraph,
the term `U.S. person' includes--
``(i) any natural person resident in the
United States;
``(ii) any partnership or corporation
organized or incorporated under the laws of the
United States;
``(iii) any estate of which any executor or
administrator is a U.S. person;
``(iv) any trust of which any trustee is a
U.S. person;
``(v) any agency or branch of a foreign
entity located in the United States;
``(vi) any non-discretionary account or
similar account (other than an estate or trust)
held by a dealer or other fiduciary for the
benefit or account of a United States person;
``(vii) any discretionary account or
similar account (other than an estate or trust)
held by a dealer or other fiduciary organized,
incorporated, or (if an individual) resident in
the United States; and
``(viii) any partnership or corporation--
``(I) organized or incorporated
under the laws of any foreign
jurisdiction; and
``(II) formed by a U.S. person
principally for the purpose of
investing in securities not registered
under the Securities Act of 1933,
unless it is organized or incorporated,
and owned, by accredited investors (as
such term is defined under section
230.501 of title 17, Code of Federal
Regulations) that are not natural
persons, estates, or trusts.
``(E) Anti-evasion.--Notwithstanding any other
provision of this paragraph, a registered security-
based swap dealer shall not conduct any activities that
are designed to evade any provision of this Act that
was enacted by the Wall Street Transparency and
Accountability Act of 2010.''.
<all>
Introduced in House
Introduced in House
Referred to the Committee on Financial Services, and in addition to the Committee on Agriculture, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned.
Referred to the Committee on Financial Services, and in addition to the Committee on Agriculture, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned.
Referred to the Subcommittee on General Farm Commodities and Risk Management.
Referred to the Subcommittee on Capital Markets and Government Sponsored Enterprises.
Subcommittee Hearings Held.
Committee Consideration and Mark-up Session Held.
Ordered to be Reported (Amended) by the Yeas and Nays: 41 - 18.
Reported (Amended) by the Committee on Financial Services. H. Rept. 112-477, Part I.
Reported (Amended) by the Committee on Financial Services. H. Rept. 112-477, Part I.
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House Committee on Agriculture Granted an extension for further consideration ending not later than May 30, 2012.
House Committee on Agriculture Granted an extension for further consideration ending not later than July 16, 2012.
House Committee on Agriculture Granted an extension for further consideration ending not later than Sept. 21, 2012.
House Committee on Agriculture Granted an extension for further consideration ending not later than Nov. 30, 2012.
House Committee on Agriculture Granted an extension for further consideration ending not later than Dec. 14, 2012.
Committee on Agriculture discharged.
Committee on Agriculture discharged.
Placed on the Union Calendar, Calendar No. 512.