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S. 3284 (is) To amend title 5, United States Code, to establish a national health program administered by the Office of Personnel Management to offer Federal employee health benefits plans to individuals who are not Federal employees, and for other purpos...


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106th CONGRESS
  2d Session
                                S. 3283

 To reauthorize and amend the Commodity Exchange Act to promote legal 
certainty, enhance competition, and reduce systemic risk in markets for 
   futures and over-the-counter derivatives, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

           December 15 (legislative day, September 22), 2000

  Mr. Lugar (for himself, Mr. Gramm, Mr. Harkin, Mr. Fitzgerald, Mr. 
 Hagel, and Mr. Johnson) introduced the following bill; which was read 
                             the first time

_______________________________________________________________________

                                 A BILL


 
 To reauthorize and amend the Commodity Exchange Act to promote legal 
certainty, enhance competition, and reduce systemic risk in markets for 
   futures and over-the-counter derivatives, 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; TABLE OF CONTENTS.

    (a) Short Title.--This Act may be cited as the ``Commodity Futures 
Modernization Act of 2000''.
    (b) Table of Contents.--The table of contents of this Act is as 
follows:

Sec. 1. Short title; table of contents.
Sec. 2. Purposes.
                TITLE I--COMMODITY FUTURES MODERNIZATION

Sec. 101. Definitions.
Sec. 102. Agreements, contracts, and transactions in foreign currency, 
                            government securities, and certain other 
                            commodities.
Sec. 103. Legal certainty for excluded derivative transactions.
Sec. 104. Excluded electronic trading facilities.
Sec. 105. Hybrid instruments; swap transactions.
Sec. 106. Transactions in exempt commodities.
Sec. 107. Application of commodity futures laws.
Sec. 108. Protection of the public interest.
Sec. 109. Prohibited transactions.
Sec. 110. Designation of boards of trade as contract markets.
Sec. 111. Derivatives transaction execution facilities.
Sec. 112. Derivatives clearing.
Sec. 113. Common provisions applicable to registered entities.
Sec. 114. Exempt boards of trade.
Sec. 115. Suspension or revocation of designation as contract market.
Sec. 116. Authorization of appropriations.
Sec. 117. Preemption.
Sec. 118. Predispute resolution agreements for institutional customers.
Sec. 119. Consideration of costs and benefits and antitrust laws.
Sec. 120. Contract enforcement between eligible counterparties.
Sec. 121. Special procedures to encourage and facilitate bona fide 
                            hedging by agricultural producers.
Sec. 122. Rule of construction.
Sec. 123. Technical and conforming amendments.
Sec. 124. Privacy.
Sec. 125. Report to Congress.
Sec. 126. International activities of the Commodity Futures Trading 
                            Commission.
     TITLE II--COORDINATED REGULATION OF SECURITY FUTURES PRODUCTS

                 Subtitle A--Securities Law Amendments

Sec. 201. Definitions under the Securities Exchange Act of 1934.
Sec. 202. Regulatory relief for markets trading security futures 
                            products.
Sec. 203. Regulatory relief for intermediaries trading security futures 
                            products.
Sec. 204. Special provisions for interagency cooperation.
Sec. 205. Maintenance of market integrity for security futures 
                            products.
Sec. 206. Special provisions for the trading of security futures 
                            products.
Sec. 207. Clearance and settlement.
Sec. 208. Amendments relating to registration and disclosure issues 
                            under the Securities Act of 1933 and the 
                            Securities Exchange Act of 1934.
Sec. 209. Amendments to the Investment Company Act of 1940 and the 
                            Investment Advisers Act of 1940.
Sec. 210. Preemption of State laws.
          Subtitle B--Amendments To the Commodity Exchange Act

Sec. 251. Jurisdiction of Securities and Exchange Commission; other 
                            provisions.
Sec. 252. Application of the Commodity Exchange Act to national 
                            securities exchanges and national 
                            securities associations that trade security 
                            futures.
Sec. 253. Notification of investigations and enforcement actions.
             TITLE III--LEGAL CERTAINTY FOR SWAP AGREEMENTS

Sec. 301. Swap agreement.
Sec. 302. Amendments to the Securities Act of 1933.
Sec. 303. Amendments to the Securities Exchange Act of 1934.
Sec. 304. Savings provision.
         TITLE IV--REGULATORY RESPONSIBILITY FOR BANK PRODUCTS

Sec. 401. Short title.
Sec. 402. Definitions.
Sec. 403. Exclusion of identified banking products commonly offered on 
                            or before December 5, 2000.
Sec. 404. Exclusion of certain identified banking products offered by 
                            banks after December 5, 2000.
Sec. 405. Exclusion of certain other identified banking products.
Sec. 406. Administration of the predominance test.
Sec. 407. Exclusion of covered swap agreements.
Sec. 408. Contract enforcement.

SEC. 2. PURPOSES.

    The purposes of this Act are--
            (1) to reauthorize the appropriation for the Commodity 
        Futures Trading Commission;
            (2) to streamline and eliminate unnecessary regulation for 
        the commodity futures exchanges and other entities regulated 
        under the Commodity Exchange Act;
            (3) to transform the role of the Commodity Futures Trading 
        Commission to oversight of the futures markets;
            (4) to provide a statutory and regulatory framework for 
        allowing the trading of futures on securities;
            (5) to clarify the jurisdiction of the Commodity Futures 
        Trading Commission over certain retail foreign exchange 
        transactions and bucket shops that may not be otherwise 
        regulated;
            (6) to promote innovation for futures and derivatives and 
        to reduce systemic risk by enhancing legal certainty in the 
        markets for certain futures and derivatives transactions;
            (7) to reduce systemic risk and provide greater stability 
        to markets during times of market disorder by allowing the 
        clearing of transactions in over-the-counter derivatives 
        through appropriately regulated clearing organizations; and
            (8) to enhance the competitive position of United States 
        financial institutions and financial markets.

                TITLE I--COMMODITY FUTURES MODERNIZATION

SEC. 101. DEFINITIONS.

    Section 1a of the Commodity Exchange Act (7 U.S.C. 1a) is amended--
            (1) by redesignating paragraphs (1) through (7), (8) 
        through (12), (13) through (15), and (16) as paragraphs (2) 
        through (8), (16) through (20), (22) through (24), and (28), 
        respectively;
            (2) by inserting before paragraph (2) (as redesignated by 
        paragraph (1)) the following:
            ``(1) Alternative trading system.--The term `alternative 
        trading system' means an organization, association, or group of 
        persons that--
                    ``(A) is registered as a broker or dealer pursuant 
                to section 15(b) of the Securities Exchange Act of 1934 
                (except paragraph (11) thereof);
                    ``(B) performs the functions commonly performed by 
                an exchange (as defined in section 3(a)(1) of the 
                Securities Exchange Act of 1934);
                    ``(C) does not--
                            ``(i) set rules governing the conduct of 
                        subscribers other than the conduct of such 
                        subscribers' trading on the alternative trading 
                        system; or
                            ``(ii) discipline subscribers other than by 
                        exclusion from trading; and
                    ``(D) is exempt from the definition of the term 
                `exchange' under such section 3(a)(1) by rule or 
                regulation of the Securities and Exchange Commission on 
                terms that require compliance with regulations of its 
                trading functions.'';
            (3) by striking paragraph (2) (as redesignated by paragraph 
        (1)) and inserting the following:
            ``(2) Board of trade.--The term `board of trade' means any 
        organized exchange or other trading facility.'';
            (4) by inserting after paragraph (8) (as redesignated by 
        paragraph (1)) the following:
            ``(9) Derivatives clearing organization.--
                    ``(A) In general.--The term `derivatives clearing 
                organization' means a clearinghouse, clearing 
                association, clearing corporation, or similar entity, 
                facility, system, or organization that, with respect to 
                an agreement, contract, or transaction--
                            ``(i) enables each party to the agreement, 
                        contract, or transaction to substitute, through 
                        novation or otherwise, the credit of the 
                        derivatives clearing organization for the 
                        credit of the parties;
                            ``(ii) arranges or provides, on a 
                        multilateral basis, for the settlement or 
                        netting of obligations resulting from such 
                        agreements, contracts, or transactions executed 
                        by participants in the derivatives clearing 
                        organization; or
                            ``(iii) otherwise provides clearing 
                        services or arrangements that mutualize or 
                        transfer among participants in the derivatives 
                        clearing organization the credit risk arising 
                        from such agreements, contracts, or 
                        transactions executed by the participants.
                    ``(B) Exclusions.--The term `derivatives clearing 
                organization' does not include an entity, facility, 
                system, or organization solely because it arranges or 
                provides for--
                            ``(i) settlement, netting, or novation of 
                        obligations resulting from agreements, 
                        contracts, or transactions, on a bilateral 
                        basis and without a central counterparty;
                            ``(ii) settlement or netting of cash 
                        payments through an interbank payment system; 
                        or
                            ``(iii) settlement, netting, or novation of 
                        obligations resulting from a sale of a 
                        commodity in a transaction in the spot market 
                        for the commodity.
            ``(10) Electronic trading facility.--The term `electronic 
        trading facility' means a trading facility that--
                    ``(A) operates by means of an electronic or 
                telecommunications network; and
                    ``(B) maintains an automated audit trail of bids, 
                offers, and the matching of orders or the execution of 
                transactions on the facility.
            ``(11) Eligible commercial entity.--The term `eligible 
        commercial entity' means, with respect to an agreement, 
        contract or transaction in a commodity--
                    ``(A) an eligible contract participant described in 
                clause (i), (ii), (v), (vii), (viii), or (ix) of 
                paragraph (12)(A) that, in connection with its 
                business--
                            ``(i) has a demonstrable ability, directly 
                        or through separate contractual arrangements, 
                        to make or take delivery of the underlying 
                        commodity;
                            ``(ii) incurs risks, in addition to price 
                        risk, related to the commodity; or
                            ``(iii) is a dealer that regularly provides 
                        risk management or hedging services to, or 
                        engages in market-making activities with, the 
                        foregoing entities involving transactions to 
                        purchase or sell the commodity or derivative 
                        agreements, contracts, or transactions in the 
                        commodity;
                    ``(B) an eligible contract participant, other than 
                a natural person or an instrumentality, department, or 
                agency of a State or local governmental entity, that--
                            ``(i) regularly enters into transactions to 
                        purchase or sell the commodity or derivative 
                        agreements, contracts, or transactions in the 
                        commodity; and
                            ``(ii) either--
                                    ``(I) in the case of a collective 
                                investment vehicle whose participants 
                                include persons other than--
                                            ``(aa) qualified eligible 
                                        persons, as defined in 
                                        Commission rule 4.7(a) (17 
                                        C.F.R. 4.7(a));
                                            ``(bb) accredited 
                                        investors, as defined in 
                                        Regulation D of the Securities 
                                        and Exchange Commission under 
                                        the Securities Act of 1933 (17 
                                        C.F.R. 230.501(a)), with total 
assets of $2,000,000; or
                                            ``(cc) qualified 
                                        purchasers, as defined in 
                                        section 2(a)(51)(A) of the 
                                        Investment Company Act of 1940;
                                in each case as in effect on the date 
                                of the enactment of the Commodity 
                                Futures Modernization Act of 2000, has, 
                                or is one of a group of vehicles under 
                                common control or management having in 
                                the aggregate, $1,000,000,000 in total 
                                assets; or
                                    ``(II) in the case of other 
                                persons, has, or is one of a group of 
                                persons under common control or 
                                management having in the aggregate, 
                                $100,000,000 in total assets; or
                    ``(C) such other persons as the Commission shall 
                determine appropriate and shall designate by rule, 
                regulation, or order.

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